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The Solicitors’ Journal and Reporter.



We 1-Live, _on several occasions, called the attention of solicitors to the necessity of their having in court, on the hearing of cases which involve questions of the construction of a will, the probate copy of the will. In a case of this kind before Mr. J ustico Noam on Tuesday last, the probate copy of the will was not forthcoming when his lordship asked for it, and he at first said that he should order the case to stand over, and that the plaintiif’s solicitor must pay the costs of the day. He said that he could not deal with the construction of a will in the absence of the probate copy. The plaintiff's counsel explained that the probate copy was in the hands of th_e country solicitor, who had not sent it to the London agents. His lordship said that it was the duty of the London agents to see that all the necessary documents were sent to them, and it was the duty of the country solicitor to send them. Ultimately, upon the representation of the plaintiff's counsel that the will was not an intricate one, his lordship consented to go on with the hearing with the aid of an ordinary copy of the will.


THE Sonioirons (IRELAND) BILL, which is passing through the House of_Lords, is in the main a re-enactment of the Attorneys and _Spll01t0!'S (Ireland) Act, 1866, with the incorporation of the provisions, or certain of the provisions, of the English Solicitors Acts_of 1874 and 1877, and of the provision of the English Solicitors Act, 1843 (s. 32), prohibiting solicitors from acting for unqualified persons. The effect, in case the Bill should pass, will be to place the Irish Incorporated Law Society in practically the same position, as regards control of examinations, and functions of a representative character and for the protection of the profession, as has_long been occupied by the English Society. It is rather surprising that this position should not already have been attained by_the'energetic Irish Society; the severest critic of bee authorities m Chancery-lane will be unable to deny the 1 11_6fiYs which the profession in England have derived from the “8}slatire recognition of the representative character of the English '°°1el'T, and from the exercise of the powers conferred upon them.


_ Ox>.ii' Lssr Mr. Justice Nonrn referred to some of the lbD;0IW(3l1l8l1C€S which_rcsult from the present system of bringing “,1?” ti‘? °°1_11't by originating summons, under order 55, questions W 1011 arise in the administration of estates. In the particular ::l_8°_W11_1oh was before the learned judge, the court was asked by be5m“_m18 _511111lI10HB _to say whether the trustees of a will would hagliztified in postponing the sale of an hotel which the testotor om, ya his will, directed to be sold. His lordship said that, as mull ppened in cases of the kind, he was placed in great diffideag 118“ to matters w1th_which he should have no difficulty in bmungtf 116 Wore executing the trusts of the will in an action the 3 °sithflt purpose. He felt quite unable to give the trustees All 281118 scretion as he should himself have in such an action. be , 9 _°°111d_ Fay was that upon the evidence the trustees would J1111t1fi€d in postponing the sale of the hotel for the present ,

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instead of proceeding to an immediate sale. But, in saying “at present,” he meant a very limited time. In the course of the hearing of another originating summons the same day, his lordship said that a practice was growing up of attempting, in proceedings of this kind, to induce the court to express general opinions upon very insuflicient evidence, and to do, in fact, that which ought to he done in chambers. He should do his best to put a stop to this.

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A cunious COSLPLICATION came to light in the case of Re Wricklmm, fllnrony v. Taylor, before Court of Appeal No. 2 on Wednesday, being an appeal from Mr. Justice KEKEWICH directing a postponement of the trial until the plaintifl’ had paid certain costs as directed by a previous order. The action being before Mr. Justice KEKEWICH for trial only, the application to him for postponement was only made when the case came on for trial. At the same time there was before Mr. Justice Noara, the judge from whom the case had been transferred, a summons for stay of all proceedings in the action until the costs before referred to had been paid. On this summons Mr. Justice N onrn, without making an order, though expressing his intention to do so when Mr. Justice KEKE\\'ICH had disposed of the application before him, declined at the same time to certify so as to enable the plaiutifi to go direct from chambers to the Court of Appeal. Under the circumstances, the Court of Appeal directed the appeal to stand over until Mr. Justice N oiirn should give 'his decision on the summons, and gave the plaintiff leave to amend his notice of appeal by adding to it an appeal from the order of Mr. Justice NORTH. The complication which here arose could not have arisen if Mr. Justice KEKE\VICH could, before trial, have entertained an application to stay proceedings or postpone the trial (see R. S. C., 1883, ord. 49, r. 2).


As Loan Ba.ui\\'sLL’s Bill, " further to amend the law of evidence," is supported by the Government, there seems to be some probability that it will pass into law during the present session. The Bill is ll combination of the provisions of the two Bills introduced in 1885 in the Houses of Lords and Commons respectively, and its six short clauses are of the most drastic character. The power intrusted to the court in the former Bill to protect the prisoner from answering criminating questions is swept away, and, as the measure now stands, every prisoner and his or her wife or husband will be competent, but not compelluble, to give evidence at every stage of the charge against him, without any right to refuse to answer any question on the ground that it would tend to criminate him as to the offence charged. The only limit to examination is that the prisoner is not to be required to answer any questions tending to shew that he has committed any offence other than that with which he is charged, unless proof that he has committed such other offence is admissible evidence to shew that he is guilty of the offence charged. or unless he h_as given evidence qfgood character. If this little Bill should pass into law it will effect the most radical change in the conduct of all prosecutions. It can hardly be doubted, and was, indeed, recently admitted by Mr. Justice Srsrnnx, the chief advocate of the change, that every accused person will have to swear_ his innocence or be taken to have admitted his guilt; perjury will become as ordinary a thing in the criminal courts as it is in the Divorce Court, and the question whether the perjury will be successfpl or unsuccessful will mainly depend on the intelligence and wit of_ the prisoner, and on whether he has means enough to enable him to he well advised as to the strong and weak points of his case. The wealthy prisoner, having the benefit of a good education and able advice, will be likely to testify with skill and effect ; so also, in a_less degree, will BILL SYxiis,who has had the advantage of a professional career in the criminal courts. But what will happen to an ignorant and timid rustic, who finds himself, for the first time in his life, before a criminal court, and is utterly bewildered and confused? It may be that the questions of his advocate (if he is able to retain one) will enable him to present his version of the matter intelliglbly to the court, but when the cross-examination comes is he not certain, whether innocent or guilty, to cut such a figure B8 I_?1‘°i cure a conviction? It will be interesting to watch the crimina statistics for a year or two after the change comes into 09851251011

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7 296 THE SOLICITORS’ JOURNAL. pray. 25,71,582.


Loan Sr.mI.i:r’s Railway and Canal Traflic Bill does not differ materially from the successively-introduced measures in pari /rnaterid of Mr. CHAMBERLAIN and Mr. MUNDELLA, the chief differences consisting in the constitution of the Railway Commission and in an elaboration of the scheme for Parliamentary revision of rates. It is now proposed that the Commission (which is entirely to supersede the existing one) is to consist of as many as six members, three permanently appointed, and three to act ea: oflicio, Of the three permanent members, one is to be “ a lawyer of experience,” and as the present legal commissioner certainly satisfies that description, his appointment would be the best that could be made, and this solution of the difficulty would, as we suggested in connection with Mr. MuNni:i.i.s’s Bill last year, have the advantage of saving a retiring pension. The ex oflicio members are to be all judges—one for England, one for Scotland, and one for Ireland, the ex ofiicio commissioner for each country to be one of the judges of the superior court of the country; and whenever acase of importance is heard, the ea: oflicio commissioner for the country in which the case is being heard is to attend and preside. The practical difilcnlty in working this scheme will consist iii calling. away a judge from the ordinary business of the superior court in each country to sit upon the commission. The scheme for the_Parliamentary revision of rates appears to have been modified with the view of giving the companies longer time to oppose revision; but we observe with regret that no specific rules are laid down to guide the Board of Trade in “themselves preparing a scheme which is, in their opinion, a fair classification of trafiic, and schedule of rates and charges," nor is any provision directed to the important object of simplifying the present toll claiises, and lessening the number of those “millions of rates ” of Which traific managers are so proud. The clause dealing with appeals provides for an appeal direct to the Court of Appeal-a WYY °t1118 1!1110"B-tion, which may, however, be defended—with a further appeal, by leave, to the House of Lords. We doubt the propriety of “leave to appeal,” and think that an appeal, if granted, should be a matter of right.

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Tm; RECENT DECISION of the Court of Appeal in the eases of Ra VM1 Duzer and Re Leaf; Sons, pt Co. (reported in last week’s XVEEKLY Rnronrsii, p. 294; also ants, p. 253), that the words

Melrose Favourite Hair Restorer " and “Electric Velveteen ” are not registrable under the Patents Act, 1853, as “fancy words 110$ 111 00mm0!1_use," wilhprobably have caused much dismay to the commercial community. When the Trade-Marks Regis tratipn_Act_of 1875 was being framed it was found so difficult to distinguish words which ought to be recognized as trademarks from words which'onght not, that the knot was cut by excluding them from registration altogether, except in cases in which they had l-een used piior to the Act. It was felt to be too strong a step to excliide such old trade-marks, and a proviso was therefore appended to the definition of registrable trade-marks by which old marks consisting of “special and distinctive woiids" were allowed to be registered. This exclusion of word trade-marks from registration, except in cases of old user, was felt by the trading population to be a grievance, depriving them, as it did of the benefits of the Act for the most valuable class of trade-marksiof all There can be no doubt that the trade-mark most prized is the trade mark which consists of the name by which an article is to 1;; known, as the name of a brand of cigars or of a special toilet article. And the recognition of such names in almost all the countries in the world, especially in the United States added to the grievance of the English traders, whose rights had always been protected in the United Kingdom before the Act of 1875, Ac. o>rdingly, when the Act of 1883 was being drafted one of the alterations in the previous Act which was most generally demanded wasthe amendmentof the definition of registrable trade-markg in such a manner as to include special and distinctive words first used aft 1875. Nothing less than this would place traders who com ea business after that year on an equal footing with those hmence in business before it, and an alteration intended to meetvtli ilefiie culty was accordingly made in the definition Unfort etll l however, as it now turns out, the Legislature instead of uliim etlsii same expression-—“ special and distinctive woi-d5"_wh-lfigh 3 been used in the earlier Act, and which was repeated agate Cid

marks in the new Act, thought fit to employ the expression,
“fancy word or words not in common use.” The question which
the Court of Appeal had to decide was, What was meant by this
phrase? The court has dealt with this question as if the expres-
sion “ fancy word ” were introduced for the first time into use by
the Act, whereas, in point of fact, it is an expression which has
been in common commercial use for a considerable number of
years, and which has acquired a perfectly intelligible and well-
understood meaning. When the phrase was introduced into the
Act it was accepted by commercial men as satisfactory, because
they understood it to mean in the Act what they had always
understood it to mean previous to the Act-viz., any word which
was not naturally appropriate to the goods to which it was applied,
such as “Dog’s head” beer, “Two elephant” soap, and so on.
According to their understanding, the word might be either an old
word or a newly-coined one, so long only as it was not descriptive
of the goods or of some quality of them. i And it was in this way
that the Registry Office at first understood the expression,
for hundreds of trade-marks of this kind were registered
after the Act of 1883 came into operation. Then some


acute intellect suggested that a narrower interpretation of the
phrase might be possible; applications began to be refused, and
the Court of Appeal has now accepted to a considerable extent,
though not in toto, the new contention of the office, and has
refused to recognize either of the words above mentioned as
registrable. The evidence shewed that no one had ever heard of
“ llielrose Hair Restorer ” or of “Electric Velveteen ” before the
applicants had used them; that, according to commercial phrase-
ology, either was a fancy term; and that each was universally
accepted as equivalent to the name of the makers. The point on
which the decision appears to be most questionable is this, Did the
Legislature adopt the expression “fancy word” as an expression
of its own invention, or did it adopt it as an expression with an
existing signification? If the former was the case, then the Court
of Appeal was undoubtedly jiistified in placing upon the expression
any interpretation it thought fit. If the latter was the case, then
it would appear that the court should have ascertained what was
the established signification of the expression, and, if it had done so,
there can be little doubt that the result would have been different.
The first ol the two expressions was geographical in character, the
second of a more general character, but neither was connected in
any way with the goods, and in such cases not only commercial
men, but judges of the highest eminence, had qualified similar
words as “fancy names.” \Ve have not space to go into the
matter at greater length, but the net result of the decision is to
overrule three judges of first instance, and to disappoint the
reasonable hopes of the trading community, and it can hardly be
expected that they will be satisfied without an appeal to the Hollie
of Lords, and, if that fails, an agitation for a further amendment
of the definition in the Act.

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T Mar-s. 1887- Tris SOLICITORS’ JOURNAL. Y ,9,



“Tun Gleb_e Lands Act, 1887,” a Bill for which has lately been introduced into the House of Lords by the Government, may probably be useiul, but, according to our usual English practice, it is 200 _l;!e- llfbit hzld bean cap]-i(-iledl befofi-e land had lost, or nearly os , i saea ev ue, 1 wo ave een a eat boo

country clergy ;_ the immediate advantage of this Act, nldwtotiiiit land is a drug in the market, is problematical, though even now there must be cases in which a sale will be advantageous to the incumbent, for the glebe may be thrown on his hands, and he may not have either the capital or the skill to cultivate it. A suggestion, full of terror to poor incumbents, has been made that neglect to cultivate the glebe in a husbandmanlike manner is a dilapidationthis, however, is not the case, and an incumbent whose glebe is thrown on his hands may safely allow it to fall out of cultivation (Bird v. Ralph, 4 B. & Ad. 826).

_ The mechamsm of the Act is somewhat complicated. The incumbent may, after notice to the bishop and patron, apply to the Land Commissioners to sell, or approve the sale, of the glebe land except the parsonage-house and the land used or convenient td be enjoyed therewith. If the Land Commissioners are satisfied that the sale will be for the benefit of the benefice and if neither the bishop nor patron object, .or if they object arid the commissioners think that their objection ought not to prevent the sale they may sell or approve the sale. Surely it would suffice ti; reqiiire the approval of the Land Commissioners, without any notice being given to the bishop and the patron. It is not to be flflppbsod that the bishop will be able personally to form any opimon _as to the propriety of a sale; he will necessarily act under the advice of a surveyor. We need not say how ruinous the costs of this will be. If the patron is a game preserver and the land proposed to be sold is contiguous to his preserves heiwill certainly oppose a sale which will probably cause the erection of “M3895; and it may be added that the very fact of his havin a voice in the matter may excite the proverbial hostility betwgan ‘quire and parson.

The purchase-money is to be paid to the Land Commissioners whether they conduct the sale or not and the are to a l it “fie? Payment of costs in one of seveiial modesiio be selecltpdyb 7 the incumbent, With the approval of the Land Commi s'e y The authorized investments are (1) Government s c s't1'oners. %'_5e5fiYt1ll(?1u!;_=ncs)t;>c(li pfd 111$’ railway comPanY in Great eBuritalieii! iii: for at least tpnrayiars y;msige(:aéi sf Parlpamegt and tlialzing 5h'“°“5 (2) the redemption of land tlax Otlhili ror tmary Ste (tr charged °“ “Y Part °f the globe which isi notesoldmt, or qm ' wtlli, grjibtilk aégigsglkthghguigesgmtzuts expressly authoriized :i'f3r%)?lllnf8W? spggified linvestmllants ard ihteiiiiddletoHl(id1h.ill(diiv£i£r‘ziiiy:'1li:ltiv(y1i2]i-7 in erate ver ' . meats notznenfisjiledllintgléle lg; gpsfi pg awaée lillaliwglqllty ipvi-1st. and Turner Conv. Act 97- El h_11 t01'lZ9I (so; o s en o me got instance, investments miiy be pmiiilse 0315 risalnisecugiticfs th?t§dmE1§§d]g:1,I1niguding heritable bonds in Scotland,_stock of interest whereongisaggingelgipd, gasp India Stock, securities the

The power docs not ho e y ar iament. ' which ought to have bée wevel‘, Sxtend to_a class of investments which the Benet Q1 °b_ectl1_ olzpros y authorized——namely, those of Fnsold glebe lands. ymerési 0 Emlprove the Parsonage-house and lug an incumbent to cause B, a easl_5,_as much reason for allow. lands to be laid out . moneys arising from the sale of _glebe allowing ,3 tenant to 11.1, Permanent improvements as there is for oi settled land to bg 11% to cause moneys arising from the sale enabling incumbents toai out in this manner. There are Acts or to purchase B he improve the parsonage-house and glebe, generally provide thatwthparsonagmhouse or glebe: these Acts the living or b A 8 money is to be raised by a charge on reason against aliiowiiiiortgage of the endowment. We can see no tpfbe applied for anylzg allgnpgfivtngingtfroig the sale of globe lands o an ex; - _ _- en ione purposes, or in paying

The endsglcgghprtge on the_living. to be made, consist ;;l:l:Il(i3ell1 In bvhttseglilaiiileéi, the ingesfimentfl are °f, in Qg ' . cu_m 911 1 e is op, an t e patron, mien isr;‘:i1e°Z:s,t his nominee; they are incorporated. Probe case where the incumbent is liable for

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dilapidations in_ respect of the property sold; for though, as we
have already pointed out, he cannot be liable for bad cultivation of
the glebe, or for not cultivating it at all, he may be liable for
allowing the fences, &c., to decay.

“For the purpose of facilitating the acquisition of land by
cottagers, labourers, and others," the land, or some part of it, is to
be sold in small parcels, or to be sold to “the sanitary authority
for the purposes m this Act mentioned, so far, in either case, as
may, in the Judgment of the commissioners, be practicable without
gdglmigishmg the price which can be obtained for such land on a


The que_stion_ whether this clause will take effect depends much upon the situation of the land. In many cases, if it be situated close to a village, it will fetch a high price if sold in small lots, perhaps so high a price as to more than compensate for the extra costs of a sale in lots. On the other hand, if the land be remote from a village, it is unlikely that it will sell well in lots; perhaps the sale of one small lot may seriously prejudice the sale of the residue of the property—- for instance, where the property intended to be sold is a farm, the sale of the more fertile fields may render the residue of the farm unsaleable. Bearing in mind the proviso that a sale in lots is not to be made where, in the opinion of the Land Commissioners, it will diminish the price, the great probability is that where an entire farm is sold it will be sold as a whole, and that the provision as to sale in lots will only take effect with respect to detached portions of land.

The assurance of the land, when of freehold tenure, to a purchaser is to be effected by a certificate of sale given by the Land Commissioners, or, at the option of the purchaser, a conveyance in the usual form from them. On production of the certificate at the Oflice of Land Registry, the purchaser is to be entitled to be registered with indefeasible title under the Land Transfer Act, 1875. Those of our readers who remember the discussion in this journal of the reports of the Bar Committee and of the Council of the Incorporated Law Society on the land laws will probably advise all poor men who purchase glebe lands to avoid the registered conveyance. Copyholds may be assured by the Land Commissioners in the same manner as it they had been surrendered to such uses as the Land Commissioners shall appoint.

The sanitary authority is authorized to purchase glebe land for the purpose of letting it out to the labouring classes resident in their district, or, if the authority is a rural authority, resident in some parish of their district, but they must not purchase except at such a price that they may reasonably expect to be recouped by the rents all expenses, which include the costs of preparing the land for letting in allotments.

There are provisions as to the incidence of expenses incurred, and the mode of raising moneys required, by a sanitary authority for the purposes of the Act, made by reference to the Public Health Act.

The Bill contains a very broad hint as to the course intended to be pursued by the Government with regard to county govemment, as it provides for the substitution of “ an elective council . . . established in a county under any Act passed in the present session of Parliament ” for the sanitary authority.

‘L A meeting of the Grand Committee, composed of London members ot the Incorporated Law Society who have guaranteed £10 10s. each towards the expenses of the entertainments to be given in June next, was held on Wednesday at the Law Institution, and an executive was appointed for carrying the arrangements into efiect, with power to add to their number. Full authority was given to the committee to do everything necessary to secure the success of the entertainments. In the course of the debate in the House of Lords on Lord Bramwell's Law of Evidence Amendment Bill, the Marquis of Salisbury said that he entirely difiered from those who thought that a prisoner, in his statement, was always able to do full justice to his story. lIe h_ad often found that an ignorant prisoner had not the faintest idea of telling that story intelligibly; he would begin at the wrong end; he would argue

i with an imaginary enemy; and he could not tell his story in such a way

that the jury could understand it. In such cases,_ when acting as chair-
man of quarter sessions, he had found that, without anticipating the
proposed change in the law, the putting of a_ few questions to a prisoner
in the way of examination or cross-examination had_the efl‘ect oi’ assistiiig
him to present his case in a way that was m_ore satisfactory to the J11?!
and the court than leaving the matter where it was left by an unsifted and


impertect statement.

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