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as applied to many cases, untrue in fact and to involve the merest Looking to the practical aspect of the matter ability results.


far as such a doctrine can be considered to extend, it seems to us THE LAW OF NEGLIGENCE AS AFFECTED BY THE that this may be so. But, as pointed out by the majority of the EMPLOYERS' LIABILITY ACT.

court, it cannot be supposed that by those words it was intended The case of Thomas v. Quartermaine, recently decided in the to put a workman into a better position than the general public. Court of Appeal, and reported elsewhere, is one of great importance We hardly imagine that the Master of the Rolls would s that with regard to the construction of the Employers' Liability Act. it can be so supposed. The doctrine volenti non fit injuria had no The Court of Appeal affirmed the decision of the court below special application in the case of master and servant. (34 W. R. 74, 17 Q. B. D. 414); büt, unfortunately, they were not The question, therefore, is narrowed to this, What would unanimous, the Master of the Rolls dissenting from the judgments be the law if, instead of a workman, the plaintiff had been of Bowen and Fry, L.JJ.

one of the general public, who, with knowledge of the existing The facts of the case were these : -The plaintiff was employed condition of affairs, frequented the place? Here really seems to in the defendant's brewery. There was in the brewery a řat, have been the divergence of opinion. The Master of the Rolls round which there was a rim fourteen inches high. The plaintiff, holds very sweeping views on the subject of negligence, which he while pulling at å board near this vat, in consequence of the expounded in the case of Heaven v. Pender (11 Q. B. D. 503). In board's coming away suddenly, fell backwards into the vat and a previous artiele on that case we ventured to express an opinion was scalded. The county court judge found for the plaintiff, that the rule which he there lays down is too wide. We do not within the meaning of sub-section 1 of section 1 of the Act, and England on the subject of negligence is as he there expresses it. that the plaintiff had not been guilty of any contributory negligence. The rule, as he there lays it down, is that, whenever one person is, The Queen's Bench Division (Wills and Grantham, JI.) reversed by circumstances, placed in such a position with regard to another his decision.

that everyone of ordinary sense who did think would at once At the threshold of the inquiry arising upon the above facts there recognize that, if he did not use ordinary care and skill in his own lie important questions with regard to the scope and meaning of conduct with regard to those circumstances, he would cause danger the Act, which is not by any means á faultless piece of drafts- of injury to the person or property of the other, a duty arises to manship. As our readers will be aware, it was passed mainly in use ordinary care and skill to avoid such danger. It is obvious that consequence of the supposed hardship involved by the application in the application of this formula the principle votenti non fit injuria of the doctrine of common employment developed in the case has really little or no place, except so far as it may be considered this matter, and ventured to take exception to the terms in which legal duty is really made coincident with the moral duty of a the judges had formulated this doctrine in the cases on the subject. humane man. If circumstances be proved that come within the It was said that the servant impliedly contracted to run the risks formula, the only remaining question is whether contributory incident to the employment. This always has seemed to us to be, negligence existed, and, if that be negatived, liability results. petitio principii. No such contract really existed in the majority action of juries, it seems to us that the general application of this of cases, and the implication of it, as in many other cases formula, in the full sense of the words, would be likely to prove of so-called implied contracts, merely came to this that the law most disastrous. With great submission, it appears to us that the annexed an incident to a certain relation. We have always Master of the Rolls' view makes the duty far too wide, and thought that the real justification of the doctrine of Priestly v. likewise overlooks the important considerations that arise with Fowler lay in the fact that the business in which the servant is regard to the connection between the alleged negligence and the employed is carried on for the joint benefit of the master and resulting damage. In these cases the legal duty is not, as it servant, wages being really, politico-economically speaking, a seems to us, to the public in general, but to a person ascertained share of profits, and that it is obviously necessary to the existence by the circumstances under which the damage happens. If a of businesses that the master should employ servants to do things bale of goods is carelessly let fall into a street from a warehouse in his place, and such delegation is, therefore, as much for the when there happens by good fortune to be no passer by, there is fellow-servants' as the master's benefit. It is clear that the Act a breach of a moral duty on the part of someone, þut no breach gets rid of the doctrine of common employment; but employers of a legal duty in any substantial sense of the word, so far as we run other risks than those caused by the negligence of fellow- can see, because there is nobody to whom a duty has arisen, or in fervants. There are dangers from dangerous machinery and such respect of whom there is any breach of duty. The existence of like. These dangers would come within the artificial formula the duty towards the person damaged must depend on the circumthat the servant had contracted to run the risks incidental to the stances under which he was brought into contact with the cause of employment. But, as we have said, we do not believe that damage. Certainly in cases where the direct cause of the mischief formula to be anything but a misleading phrase, which ex- is the action of the person injured, not the alleged act of mispressed and, at the same time, affected to account for a result, the feasance or nonfeasance by the defendant, such act being only a result, no doubt, being correct, but not the reason given for it. remoter cause, it must depend on circumstances, we think,

The true maxim applicable to this class of dangers is, we think, whether there is any duty or breach of duty. It appears to us character of which it is open to anyone to perceive; and he Pender, this was always treated as well established. What may employs a person to attend to it or to work in connection with it. be shortly called the trap" doctrine is altogether superfluous contract. If I employ you to work with this dangerous machinery, person himself voluntarily brings about his own exposure to the Fou undertake to run the risk of damage to yourself from it. It is danger arising from any dangerous object, knowing of its existence to this formula, but the truth is that, unless the law or in whose control, such object is. less undefined mental operation or understanding corresponding breach of duty involved on the part of the person whose property, mental understanding,

that is, if A good deal, however, turns, in the application of the the legal result would be the same, whether there is such an under- maxim volenti non fit injuria, the meaning of the

We think that in dealing with this contract. The substantially correct way of putting the result seems question Lord Bramwell goes as much too far in one direcfor easy that the mischief he sustains is caused by the negligence or whether, for this purpose, every act can be said to be voluntary words of the Act, which say that the workman shall have the same inherent in the very nature of things. The poet speaks of the tight of compensation against the employer as if he had not been in schoolboy going unwillingly to school; nevertheless the boy goes, ein gather, that they do awaya with the word "doctrine that because he knows he will be punished if he does not. Moreover, the workman impliedły undertook the risks of the setvice that we are not think it reasonable to hold that, wherever the immediate


cause of the damage is the voluntary act of the party injured, he who paid the premiums. When the life dropped, it was held that cannot recover. That is not the true meaning of volenti non fit G. was entitled to be repaid the premiums at once. injuria. We do not ourselves think that, if someone wrongfully From these cases it is clear that the doctrine was gaining ground digs an excavation in front of a man's door, he is bound to stop in that anyone interested in the policy might pay the premiums and his house till it is filled up or take the risk of any attempt to get expect to obtain a lien upon it for the amounts, and Lord Romilly's out-assuming that such an attempt is a reasonable one to make. express allusion to salvage made such an interpretation of the law Similarly, when a train is driven beyond the platform. It must probable. It is curious that the two cases which first checked this be a question, to some extent, of degree. We cannot, however, tendency should both have been before Lord Justice Fry, who was think that these are all mere questions of contributory negligence, also a member of the Court of Appeal which has finally destroyed as the Master of the Rolls' view would appear to make them. it. Its defect lay in this, that it would, unless carefully guarded, The occupier of the house and the railway passenger, in the cases have made it possible for a mortgagor to claim, in priority to the we have put, do not bring themselves into the position in which mortgagee, expenses which he had incurred in preserving the they must choose between one of two evils—a serious loss or property. This, of course, would contradict a settled rule of law. inconvenience, and running a certain amount of risk. The work-In Saunders v. Dunman (26 W. R. 397, 7 Ch. D. 825), the first of the man who goes to work at a particular place, or continues working cases just referred to, the mortgagor, by taking out administration, there, with knowledge of the state of things there existing, does had perfected the title of the mortgagee, and hence he claimed his so voluntarily, and has himself caused his exposure to the risk. expenses in priority to the mortgage. In answer to the argument We know that there are many who think that the necessity he is that this could be supported on the ground of an implied request, under of earning his bread practically compels him, in the sense it was held that the motive which the mortgagor had in securing in which we are discussing the meaning of the term “voluntary" ; his own ultimate interest made any such implication unnecessary. and we fully expect that many of our legislators will be prepared But the cases cited above were clearly a difficulty. As to West ř. to alter the law so as to give effect to that view. The case of the Reid, Fry, J., pointed out that the question of lien was not workman, however, is essentially different from those we have really decided (merely, however, because it was thought referred to. In the one class of cases the damage may result too clear for argument), and, as to Shearman's case, he directly from the voluntary act of the party injured, but the chose to ignore the expressed ground of decision, and supsituation out of which the occasion for that act arose was solely posed that it went on the fact of the previous offer. Howcaused by the misfeasance or negligence of another. In the case ever, the whole matter was thoroughly discussed in Re of a workman the situation arises from his own volition.

Leslie (31 W. R. 561,23 Ch. D. 552), and the same judge, setting aside the doctrine of salvage, enunciated clearly the cases in which a lien might be created upon policy-moneys by payment of the premium. He further rejected the claim of a

stranger, and even of a part-owner. In the case before him a INSURANCE PREMIUMS AND THE DOCTRINE OF husband had paid premiums on a policy effected by his wife before SALVAGE.

marriage, and had died without having reduced it into possession. THERE has been a marked tendency of recent years to apply the A claim to repayment of the premiums on the ground that he had maritime doctrine of salvage to the preservation of a life policy had a joint interest with his wife was made unsuccessfully on by payment of the premiums, and when we remember how fre- behalf of his estate. quently this is really done, not for the benefit the person paying, But it will be convenient to pass on at once to the most recent case but for the benefit of a prior claimant, the extension of the doctrine —viz., Falcke v. Scottish Imperial Insurance Co. (35 W. R. 143, 34 is not unnatural. In spite, however, of the fact that it has been Ch. D. 234), in which the decision in Re Leslie was indorsed and the expressly recognized on the bench, has been repeatedly advanced question of salvage more fully onsidered. Here there was a first mortin argument at the bar, and has found its way into the text-books, gage to the insurance company itself, a second to Falcke, and the it has now received a decisive check in the Court of Appeal, as premiums were paid by the mortgagor. In the court below it well as in the courts below, and it may be useful to observe how had been held by Bacon, V.C., apparently on the authority of the this has been brought about.

earlier cases, that he was entitled to have them repaid to him out of The cases which had been chiefly relied on as establishing the the policy-moneys. In the Court of Appeal, however, those cases principle were the following :-In West v. Reid (2 Hare, 249) an were explained away, and, from the judgments there delivered, assignment of a policy was made to W., which was invalid for combined with that in Leslie, it is possible to ascertain the want of notice to the company. Hence, on the bankruptcy of the law on the subject with some certainty. assignor, it passed to the assignees in bankruptcy. W., however, 1. A lien certainly arises in the following cases :had paid the premiums, and it was admitted at the bar that he (a.) Where there has been a contract with the beneficial owner was entitled to have them repaid to him. Burridge v. Row (1 Y. of the policy to pay the premiums. Such contract may be express & C. Ch. 183) was more complicated, but was briefly as follows: or implied. The latter would be the case where a request to make A., on his marriage with B., covenanted to settle £5,000, and as the payments could be implied, and it was stated by Cotton, L.J., security assigned to trustees a policy of insurance. B., who had that such request would be implied from slight circumstances. It only a life interest under the settlement, subsequently paid the was considered that this was probably the ground of the judgment premiums, and it was held that she was entitled to a lien for the in West v. Reid. sums so paid. In both these cases the person paying the premiums (6.) Where trustees have a claim to be indemnified out of the trust had an interest, real or supposed, in the maintenance of the policies, property for money expended in its preservation. And the lien which and while payment by a mere stranger might well be excluded, they themselves would have is given to anyone else who actually yet a good foundation was laid for securing the lien to all who advances money at their request. It is necessary, however, that could reasonably expect it. Accordingly, in the next case the they should not have a fund applicable to the purpose, for in this doctrine was laid down more explicitly. This was Shearman v. British Empire Mutual Life Assurance Co. (20 W. R. 620, will have a lien. Hence such person was refused his lien in Olack

case neither they themselves nor the person advancing, money, 14 Eq. 4). Here P. mortgaged a policy on his own life to s.; V. Holland (2 W. R. 402, 19 Beav. 262). This principle enabled the and afterwards became bankrupt. He continued to pay the pre- court to explain Gill v. Downing (suprà), where the mortgagee, in miums till his death, and then his widow and executrix was allowed paying premiums, only exercised a power expressly given to the to recover them for his estate. Apparently she claimed the whole trustees of the policy. policy, for she refused an offer of a sum greater than the premiums. But to these, at any rate, Lord Romilly, M.R., held that she was to preserve the property.

(c.) Where a mortgagee adds to his charge money paid by him clearly entitled, and expressly stated that the premiums paid subsequently to the bankruptcy were in the nature of salvage sometimes be possible to support the claim to a lien on the ground

(2) But where there is no contract, express or implied, it may moneys. The same doctrine seemed to be applied again in Giti of acquiescence. The mere outlay of money on property for who was tenant for life of a policy without power of anticipation, This would let in the mortgagor in priority to the mortgagee. It v. Downing (22 W. R. 360, 17 Eq. 316). A married woman, the benefit of another person with a prior interest is not sufficient: but with a subsequent power of appointment, mortgaged it to G., \ is necessary, as was pointed out by Fry, L.J., that the person


345 expending the money should do so in a mistaken belief as to his I enclose a form of petition in support of the Bill which is being title, and that the person benefiting by it should know of such used if you have room to insert it for further adoption. mistake and yet not interfere.

1, New-inn, Strand, March 21.

JOHN ELLERTON. (3) If a person paying premiums does not come under any of The following is a copy of the form of petition enclosed :these cases it is now clear that he cannot call the doctrine of “To the Honourable the Commons of the United Kingdom of Great salvage to his assistance. Both Bowen and Fry, L.JJ., lay this

Britain and Ireland in Parliament assembled. down clearly. And it seems to make the matter no better that

“The petition of the undersigned being owners of house property in he has an interest as part-owner or otherwise in the policy. It is

England or persons having experience in the management of such

property, true the law is laid down differently in Mr. Crawley's excellent Humbly sheweth :—That the Lodgers' Goods Protection Act, while book on Life Assurance. Thus, at p. 98, we read :—“If premiums it has operated beneficially towards lodgers in preventing their goods are paid by persons having an interest in the policy-e.g., tenant from being seized for rent not due by them, has entailed great for life or in remainder—the payments are in the nature of salvage, losses on the landlords of the large class of houses which are let at and the person paying acquires a lien on the policy.” In support rack rents and underlet in lodgings by depriving such landlords of of this he quotes Burridge v. Row, Todd v. Moorhouse (19 Eq. 69), their only effectual means of obtaining payment of the rent due to and Gill v. Downing, all of which are explained away in the two lessees or tenants, desiring to avoid payment of their rent, keep few

them from their immediate lessees or tenants, in cases where such cases we have been discussing. As to the first, not very clearly; or no goods of their own on the premises, but regularly collect their as to the second, on the ground of a request by the trustees to pay; lodger's rents, the lessees or tenants of that class of property being while the explanation of the third we have already seen. Perhaps, frequently persons of such small means that the remedies for rehowever, it would not be safe to say that no case can arise in which covering the rent as a debt are practically useless, and the landlord payment by a person interested would not be held to create a lien. can only recover possession of his house at considerable cost, with the

We have pointed out that the unlimited application of the doc- loss of two or three quarters of a year's rent. trine of salvage would conflict with the rule as to money expended be supplied by enacting that the exemption of lodgers' goods from

“That a substantial if not complete remedy for this mischief would by a mortgagor. The difficulty seems to have been to distinguish distress for superior rent should not apply to the extent of such rent on principle between a mortgagor and those standing in his place.

as should become due from them after notice were given to them of In practice the distinction was drawn easily enough; thus in such superior rent being in arrear, so as in effect to enable the Shearman's case it was only to the premiums paid after the bank- superior landlord by notice to attach or intercept the lodger's rent. ruptcy that the doctrine was applied, and the reason for this was That such alteration in the law would cause no injustice or hardclearly stated in Norris v. Caledonian Insurance Co. (8 Eq. 127), ship whatever to anyone, the lodger would not be liable to pay his where the executor of the mortgagor was allowed a lien, inasmuch rent more than once, and no more would be taken from the mesne as he had no business to pay away assets for the benefit of a par- tenant than that which he owed. It would merely transfer temticular creditor. Thus the distinction would be between the porarily the right of distress from the wrong-doing mesne tenant to

the defrauded landlord. mortgagor and his voluntary assigns on the one hand, who would be excluded by the ordinary rule, and his involuntary assigns—i.e., that the law relating to the exemption of lodgers' goods from dis

“Your petitioners, therefore, humbly pray your Honourable House his creditors-on the other hand. Upon the same line with these tress for superior rent may be amended in the manner above would stand all persons with limited interests, who, through no mentioned or in such other manner as to your Honourable House fault of their own, are bound to pay the premiums or else look on

shall seem just. and see their property wasted. It is submitted that the applica

“ And your petitioners will ever pray.” tion of a doctrine analogous to that of salvage would have been [We presume the intention is to give to the landlord the same right reasonable and would have explained all the cases.

It is difficult of distress as the mesne tenant has-i.e., to distrain for the weekly indeed to see how some, such as Burridge v. Row and Norrie v. rent of the lodger as it becomes due.-ED. S.J.] Caledonian Insurance Co., come within the list of cases as now laid down, and yet the court seems to have abstained from overruling them. Éowever, there is the list, and it seems clear that it must now exclude the more flexible application of the doctrine


[To the Editor of the Solicitors' Journal.] Sir,- In reply to the letter from “ A Solicitor" in this week's issue of the SOLICITORS' JOURNAL, it is believed by many that the Institute

will assist in the federation of the empire, in which I, for one, take CORRESPONDENCE.

great interest. Why should solicitors take no part in it? I fail to see

that anyone will be a marked man for not contributing. Everyone THE LODGERS' GOODS PROTECTION ACT.

pleases himself; but this is the national scheme, and it is, to my [To the Editor of the Solicitors' Journal.]

mind, worthy of support. Sir, --Permit me to call, through the medium of your columns, the

Why not also start a fund for poor solicitors ? attention of solicitors throughout the country to the very useful Bill

March 21.

ANOTHER SOLICITOR. which the Right Hon. Sir H. J. Selwin-Ibbetson has brought in for amending the Lodgers' Goods Protection Act. The injury done by means of that Act to landlords is probably too

THE CORONER'S POWER TO FINE. well known to every owner and manager of houses let out in lodgings to require mention.

[To the Editor of the Solicitors' Journal.] which he receives from his lodgers and does not pay his own rent

An unscrupulous tenant lives on the rents for the house he sub-lets, leaving the landlord to turn him out by cerning my action in fining a juryman at an inquest, which seems to perhaps of £20 or £30, and the loss, by the time that a judgment can case do not seem to have been correctly brought to your notice. be obtained—if the tenant, as he frequently does, enters a vexatious They are shortly these :

On the 14th inst. I opened an inquest and the jurymen were sworn. The remedy proposed by the Bill meets the case by giving the I found it necessary to adjourn to the 16th inst. for the attendance of superior landlord the right of distress on the lodger's goods to the a necessary witness, and on the adjournment a juryman appeared batent of the rent which shall become due from the Lodger after the helplessly drunk, although the hour of the day was 10.45 a.m. Uneffect enabling the superior landlord by notice to attach the lodgers therefore, I was compelled to either again adjourn or go on with a Lodger's rent accruing after notice, which, byishe law aistite stands, lis adjourned the case and fined the drunken juryman for contempt of lodererested in the fraudulent mesne tenant, and the Bill guards the court. It was he who appealed to his brother jurymen as to his Hifised to bring the matter to the attentionu se poate représentatives against the man. "In so doing I acted, as "I thought, fairly and trecerea de urge all who are interested in house property of the class allowed the jury to express their opinion, which was unanimously absolutely free from all party or class another it is the Midare tasses the actiox of this man was a gross contempt of court to the delay and

hindrance of justice.

of salvage.

who suffer the loss referred to.


8. 31.


As to the power of a coroner to punish for contempt of court, the law on this point seems to be well settled.

CASES OF THE WEEK. The coroner's court is an inferior court of record, and, as such, has attached to its jurisdiction, and inherent in it, a power to punish by MORGAN -. HARDY (FOTHERGILL, Third Party)—0. A. No. 1, 21st

March. fine or imprisonment for contempt, if committed in court (Ex parte Pater, 33 L. J. M. C. 142), but not for contempt committed out of INDEMNITY AGAINST Covenant TO REPAIR-BANKRUPTCY OF SURETY BEFORE court (Cockburn, Ç.J., Reg. v. Lefroy, 8 Q. B. 134).

TERMINATION OF Lease—BANKRUPTCY Act, 1869 (32 & 33 Vict, c. 71), As to contempt of process, the power of the coroner is in no way limited by 7 & 8 Vict. c. 92, s. 17, which provides a method for fining

This raised an important point as to the construction of section 31 of the jurors or witnesses, but also at the end of the same section expressly Bankruptcy Act, 1869. By an agreement made in 1873, Fothergill reserves to the coroner his ancient right of punishing for contempt. undertook to indemnify the defendant against a covenant contained in a The 17th section seems to give to the coroner a simpler way of lease to the defendant by the plaintiff to leave certain premises in repair punishing, þy fine, persons guilty of disobedience to his orders. at the end of the term thereby demised. In 1875 Fothergill became

It is not to be suppcsed that a coroner would knowingly allow a bankrupt, and was discharged in January, 1876. The term granted by drunken person to serve on a jury, but it seems to me to be clearly a the lease did not expire until January, 1883. In an action by plaintiff for contempt of court for a person who has been duly summoned to breach of the covenant the defendant brought in Fothergill as third party; appear before the court in such a state of drunkenness as to in- but he contended that the agreement to indemnify was, under section ži

of the Act of 1869, a "liability, present or future, certain or contingent" capacitate him from carrying out his duties. 4. BRAXTON HICKS, Coroner for Surrey.

to which he was subject at the time of the proceedings, and was there

fore a debt provable in bankruptcy, from which he was discharged by the 2, Elm-court, Temple, E.C., March 23.

order of discharge. The defendant, however, contended that the liability

one incapable of being estimated. The action was tried before Deuman, J., who gave judgment for the defendant as against the third

party (34 W. R. 254, 17 Q. B. D. 770). Fothergill appealed, and OFFICIAL RECEIVER v. TAILBY.

THE COURT OF APPEAL (Bowen and Fry, L.JJ. ; LORD Esher, M.R.,

dissenting) allowed the appeal. They considered that the intention of LTo the Editor of the Solicitors' Journal.?

the Act of 1869 was to discharge the bankrupt when he obtained his order Sir,- If you will take an opportunity of giving to the authorities

of discharge from all claims of contract creditors, and that, therefore, it on the general question that thorough consideration,” withont bankruptcy. The trustee might possibly decline to estimate it, or, if he which, at p. 327, you tell us you are not prepared to say that the did estimate it, and the court considered that such a claim was not capable Court of Appeal were wrong, you will, I feel sure, no longer hesitate of being estimated, there was machinery specially provided by which it in pronouncing the judgment of the court in the above case to be might be declared to be a debt not provable in bankruptcy. The words manifestly wrong. You will find that, while indefensible on prin- of the section clearly included such a liability as this. Lord Esher, M.R., ciple, it rests ultimately for authority on the obiter dicta of some thought that the liability in question was incapable of estimation, and common law judges in Belding v. Read; such dicta having respect to that there was no duty on the defendants to have brought it before the a matter of equity with which these judges were unfamiliar, and trustee, who could not have estimated it. If he had estimated it it would being, moreover, obviously based on an extraordinary misconception ave been necessary to go to the court to set aside his estimation, on the of the distinction pointed out by Lord Westbury in Holroyd y. ground that it was incapable of valuation, and was, therefore, not a debt Marshall, between specific and non-specific goods. The fallacy con- provable in bankruptcy, and the Legislature could not have 'intended to sists in treating a specific” as opposed to indefinite”; whereas, in Williams, Q.c., and Abel Thomas ; Lumley Smith, Q.C., and I. Terrell; fact, a contract to sell 500 chests of tea, though perfectly definite, is McIntyre, &.c., and Clement Higgins, Q.o. SOLICITORS, Wilkins, Blyth, not specific; þut, on the other hand, a contract to sell all the tea Dutton; Kingsford, Dorman, & Co.; Field, Roscoe, f Co. which may be shipped to the vendor this year, next year, or during his life, though as indefinite as possible, is just as much a contract for specific goods as is a contract to sell the 500 chests now in his ware

MALLET V. HANLEY AND ANOTHER—0. A. No. 1, 21st March. house, and is therefore equally entitled to specific performance. PARLIAMENT—Vexatious OPPOSITION TO BILL—"PETITIONER "-CostsGeneral assignments or charges of future property by joint-stock

28 & 29 Vict. c. 27, s. 2. companies, in the form of debentures, have long been familiar, and By section 2 of 28 & 29 Yict. c. 27, when the committee on a private specific performance is every day given of them, either in an action Bill shall decide that the preamble is proved, and report that the prodebts ; but by the above decision a section of the Court of Appeal promoters shall be entitled to recover from the petitioner such portionale or under liquidation, as regards both corporeal chattels and book- moters of the Bill have been vexatiously subjected to expense in promoting now tells us (in effect) that the constant practice of five-and-twenty their costs of the promotion of the Bill as the committee may think oft. years is all wrong

I will not stop to criticize the utterly untenable distinction sug- ment of certain tramways authorized by Act of Parliament in 1883. gested þetween an assignment of book-debts to arise in a particular petition against the Bill was presented in the name of the Skegness and frade, and an assignment of all future book-debts; but will content St. Leonards Tramway Co., the petition being sealed with the company's myself with pointing out that the judges who decided this case in seal. The two defendants were directors of that company, and the the Court of Appeal are logically bound to hold that a gift by will committee of the House of Commons decided that the preamble of the of the whole of the testator's real and personal estate is void for Bill was proved, and reported that the promoter had been vexatiously uncertainty !

L. W. L. subjected to expense by the opposition of the present defendants, the March 21.

directors of the company, petitioners aguinst the Bill, and that the promoter was entitled to recover certain costs so incurred from them. The costs were taxed, and a certificate given, and judgment for the amount

signed, the Court of Appeal holding that the proper course was for the Spring Assizes, which are expected to commence about the 19th of Aprii defendants Accordingly removed, on the ground that the state and

The following are the circuits chosen by the judges for the ensuing defence. The case is reported 35 W. R. 201, 18 Q. B. D. 303. The Circuit, Mr. Justice Field ; Oxford Circuit, Baron Huddleston : North gave the committee jurisdiction to award costs against a "petitioner," and Eastern Circuit, Justices Manisty and Grantham ; Midland Circuit, Mr.

that the tramway company, and not the defendants, were the petitioners, Justice Hawkins ; North and South Wales Circuits, Mr. Justire Mathew;

and that, therefore, the committee had no jurisdiction, and the certificate Northern Circuit, Justices Day and Wills. Prisoners only will be tried

was invalid. Affidavits were filed shewing that the defendants alone chester and Liverpool on the Northern Circuit, at which three places both Divisione startet (Lord Coleringen, O.J., and Mathew, J.) refused the at these assizes, except at Leeds on the North-Eastern Circuit, and Man. authorized the presentation of the petition, and that counsel for the civil and criminal business will be taken. On the 17th inst., in the House of Commons, Mr. Baggallay asked the

application (see ante, p. 318), and the defendants appealed. First Commissioner of Works whether, looking at the facts that during dissenting) allowed the appeal. They thought that it was a question of

T'he COURT OF APPEAL (Bowen and Fry, L.JJ. Lord Esher, 11. R.; of actions, particularly jury actions, had been delayed in consequence of petitioner. This jurisdiction was entirely statutory, and the counting the present and recent sittings of the High Court of Justice the hearing the jurisdiction of the Parliamentary committee to inflict coole pourt, that three judges were sometimes unnecessarily sitting together in Band their opinion the defendants" were not petitioners within the meaning the vider the desirability of providing further accommodation for the judges costs. The meaning of petitioner was clearly the person who was Present been brought to his notice. The question of further accommodation at this case the petition had been presented by the company, and the coure the Royal Courts of Justice seemed to be for the consideration, in the first mittee had no power to go behind that petition and inquire who vided course any suggestion coming from the Lord Chancellor would be imme by the Act for such an inquiry, and no means by which such persone diately and carefully considered.

could be heard in their own defence. Lord Esher, M.R., was of the



MINISTRATION ACTION BY CREDITOR- STATUTE OF LIMITATIONS-CREDITOR applied in equity to the debts and obligations of a married woman.

347 contrary opinion. He considered that such a construction of the statute validity of any such composition or scheme, and it shall be binding on all would work great injustice to the promoter of the Bill. If the parties the creditors, so far as relates to any debts due to them and provable under were present before the committee, as they undoubtedly were in this the bankruptcy." Section 15 of the Debtors Act, 1869, provides that case, he thought the committee had jurisdiction to inquire whether they "where a debtor makes any arrangement or composition with his credi. really presented the petition, and that, the committee having rightly tors under the provisions of the Bankruptcy Act, 1869, he ehall remain exercised that jurisdiction, there was abundant evidence on which they liable for the unpaid balance of any debt which he incurred or increased, could find the defendants to be the real petitioners.-COUNSEL, Bigham, or whereof, beforetbe date of the arrangement or composition, heobtained Q.C., and T. W. Chitty; H. D. Greene, Q.C., and H. Kisch. SOLICITORS, forbearance by any fraud, provided that the defrauded creditor has not Torr & Co.; W. Whitfield.

assented to the arrangement or composition otherwise than by proving his

debt and accepting dividends." The question was, whether section 15 THOMAS v. QUARTERMAINE--C. A. No. 1, 21st March. applied to a composition accepted under the provisions of section 28, so EMPLOYERS' LIABILITY Act, 1880 (43 & 44 Vict. c. 42), s. 1–KNOWLEDGE assented to the composition otherwise than by proving his debt and

that a creditor whose debt had been incurred by fraud, and who had not of PLAINTIFF-DEFENCE OF CONTRIBUTORY NEGLIGENCE.

accepting dividends, could prove for the unpaid balance of his debt in an The plaintiff was a workman employed in the defendant's brewery, action to administer the estate of the deceased) debtor brought by another and, while endeavouring to pull away å plank lying underneath one of creditor. It was contended that section 15 of the Debtors Act applied the boilers, he fell backwards into a vat filled with scalding liquid which only to a composition accepted by the creditors of a debtor who had instibad a rim raised only fourteen inches above the level of the ground. tuted proceedings for the liquidation of his affairs or composition under The county court judge held that there was evidence of negligence on sections 125 and 126 of the Bankruptcy Act, 1869. the part of the defendant, since the rim did not afford sufficient pro The Court of APPEAL (Cotton, LINDLEY, and Lopes, L.JJ.), affirming tection to the rat. The Divisional Court reversed this decision (34 W. R. the decision of Bacon, V.C., held that section 15 applied to a composition 741, 17 Q. B. D. 414), on the ground that it was not a defect in the under section 28 as well as to a composition under section 126, and that condition of the ways, works, and machinery.

the creditor was entitled to prove in the administration action for the unpaid THE COURT OF APPBAL (Bowen and Fry, L.JJ.; Lord Esher, M.R., balance of his debt. The Court also held that the existence of the dissénting) now upheld this decision, but on different grounds. They administration action, though it was not expressed to be brought by the said the case was one of great importance, since it depended on the con- plaintiff on behalf of the other creditors of the testator, prevented the struction of the Employers' Liability Act. In their opinion that Act did Statute of Limitations from running against a creditor, who, though he not do more than remove such fetters as were imposed by the relation of was not a party to the action, was entitled to go in and prove his debt master and servant. The Act had placed a workman, with certain under the judgment.-COUNSEL, 4. Young ; Ince, Q.C., and St. John exceptions, in a position as advantageous, but no better than that of Clerke. Solicitors, John Holmes & Son ; Leathley & Phipson. persons using his master's premises, but who were not employed by the master. The workman would have to prove that there had been some breach of duty by the master towards the workman and that that breach


March, of duty was the proximate cause of the accident. Although mere kmowledge of the risk on the part of the workman did not necessarily MARRIED Woman—Separate Estate—Statute of LIMITATIONS (21 Jac. 1, amount to a conclusive defence, still knowledge, under circumstances

c. 16), s. 3. which shewed that the risk was voluntarily encountered, would amount This was an appeal from a decision of Kay, J. (ante, p. 60, 35 W. R. to a complete defence. It was plain that in this case the plaintiff had 135). The question was whether the Statute of Limitations applies by known of the danger and had voluntarily incurred it. If the case of analogy to a claim against the separate estate of a married woman. In Weblin . Ballard (34 W. R. 155, 17 Q. B. D. 122) conflicted with this April, 1875, the second husband of H. paid to her separate account £400. view, that case must be overruled. Lord ESHER, M.R., considered that H. died on December 30, 1884, without having made any payment of the question was one of fact for the county court judge, and that there interest or principal in respect of the £400, or given any acknowledgment was evidence on which he was justified in finding that the defendant in writing of her liability to repay it. There was evidence that she had had been negligent. The knowledge by the plaintiff of the risk was no verbally admitted that the £400 had been lent to her, and had agreed to defence to such an action; it only amounted to evidence of contributory repay it, with interest at five per cent., out of her separate estate. H. was, negligence on the part of the plaintiff. On that evidence the county at the time of her death, possessed of separate estate available for the pay: court judge had found, as a fact, that there was no contributory negli- ment of the £400. In an action to administer her estate the husband gence, and the court had no power to interfere with that finding.- claimed to rank as a creditor against her separate estate for $400 and COUNSEL, Orump, Q.C., and Hodson ; Graham and E. P. Hewitt. Solici. interest. The claim was disallowed by the chief clerk, and his decision TORS, Summerhayes ; Wansey, Bowen, & Co.

was confirmed by Kay, J., who held that, assuming the £400 to have been

a loan, there was no ground for saying that a simple contract debt conADAMS v. BATLEY-C. A. No. 1, 23rd March.

tracted by a married woman ought not to be treated in equity as barred by PRACTICE–INTERROGATORIES–Penalty-3 & 4 Wul. 4, c. 15, S. 2; 5 & 6 analogy to the Statute of Limitations.

THE COURT OF APPBAL (Cotton, LINDLEY, and LOPES, L.JJ.) affirmed
VICT, c. 45.

the decision. COTTON, L.J., said that in his opinion the statute operated
This was an appeal from a divisional court ordering the defendant to by analogy as a bar. What, according to the doctrine of courts of equity,
answer the plaintiff's interrogatories. The action was brought to recover
certain sums of forty shillings for infringement of the copyright of As this debt was contracted in 1875 the case was not governed by the
certain musical compositions under 3 & 4 Will. 4, c. 15, s. 2, as extended Married Women's Property Act, 1882, but by the general rules of equity
infringing the copyright shall be liable for each and every representation women were allowed a protection which could not be annexed to the
of the composition to the payment of an amount not less than forty estate of a man. When a restraint on anticipation was imposed a married
shillings, or to the full amount of the benefit or advantage arising from woman was precluded from binding by her act property which belonged
such representation, or the injury or loss sustained by the plaintiff there-
from, whichever shall be the greater damages. The defendant declined been imposed, the court considered the married woman, so far as regarded
to answer the interrogatories on the ground that the action was an
action for penalties, and that, therefore, no discovery was allowable,

her separate property, as in the same position as if she were a feme sole

that is, she was capable of entering into contracts which would bind her pente, They said that the case did not come within the doctrine which not be enforced against her personally, though they would bind her pour rented a court of equity from allowing discovery by way of interroga- separate property. And after a claim had been established in an action de regnes The payment of money in this Acercoas a payment by way or against here on the creditor, an inquiry would be directed What separate damages and not by way of penalty. It was not a payment imposed on estate she had at the time of contracting the debt, and the trustees of Store Fillan. SOLICITORS, Dangerfielder Blythe, for mati, om, Nord, if not restrained from anticipation) just as if she were a feme sole, the elementing it had none of the characteristics and more opening of course, Being therefore, entitied to contract one regarded her separate property

necessary consequence was that the Statute of Limitations was applicable

to the contracts of a married woman just in the same way as it would Re CROSSLEY, MUNNS ». BURN—C, A. No. 2, 21st March.

apply to the contracts of a feme sole or any other person not incapacitated COMPOSITION— RELEASE OF DEBTOR-DEBT ÎNCURRED BY FRAUD-AD

from entering into a contract. The analogy of the statute, therefore, NEE PARTY To Action- BANKRUPTCY Act, 1869, 8. 28–DENTORS Acr, debt was contracted by the married woman with her husband, who could

was argued that the statute ought not to apply in this case, because the 28 of the Bankruptcy Act, 1869, upon a debt which the debtor had in. Sto this case a question arose as to the effect of a composition under section Fudgment in the ordinary way against a married woman, and toat the

Section 28 provided that, after the making of an The fact that in this case the husband was himself the trustee would not meeting, of which notice has been ngiten, especifining combined out sack ordship's opinion the decision was the Lord Chancellor of "Ereland in Se he scheme of settlement of other enteret be kinek bankrupts samt ho feucem Yarak, "L.JJ., concurred:--COUNSRi, Fischer, quo, and J. G. Wood; Corrt, and that “ the approva pediente "combineret til et bien veels to the Gravering Hastino. Sleacensons cortina oreli morir Co.

Manchester; Grayston.


curred by à fraud.

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