Page images


case of his default. This was repealed, at the pressing cation before Vice-Chancellor Hall in Orr Ewing's case, instanse of Charles the Second, by 16 Car. 2, c. 2, as it was stated that an objection had been made by the being “ in derogation of His Majesty's just rights and office to the registration of what appeared, as submitted prerogative," but the repealing Act, reciting that“ by for registration, to be a mere oval blotch, though the the ancient laws and statutes of this realm made in the

objection had had to be withdrawn, on its being explained reign of King Edward the Third, (see 4 Ed. 3, c. 14] by the applicants that the blotch, when in practical use, Parliaments are to be held very often,” provided that shone out as a golden egg. “the sitting and holding of Parliament shall not be intermitted or discontinued above three years at the most.” The Triennal Act properly so-called, 6 & 7 W. THE TIPSTAFF of the Chancery Division appears to & M. c. 2, to which William the Third for some time us to have been the victim of much unjust aspersion. refused the Royal Assent, reciting that “ frequent and He has, it is true, twice lost a prisoner who had been new Parliaments tend very much to the happy union and

committed to his charge, but then it is forgotten what good agreement of the King and people," provides by a wily, unscrupulous and unusual kind of prisoner this section 1 that “a Parliament shall be holden once in If we remember rightly, it was stated that he every three years at the least" (this refers to sessions),

succeeded on the first occasion in inveigling the and by section 2' that writs are to be “issued within tipstaff into riding in a different part of the tramthree years after the determination of Parliament for

car from that in which he took his seat, and on the last the holding of another new Parliament" (this refers to

occasion he is said to have “had firearms in his pocket.” Parliaments). The 3rd section, which provides for the

The usual class of prisoners whom the tipstaff hasdissolution of any existing Parliament within three years

committed to his charge are persons of a very difafter its being summoned, was not repealed until 1867

ferent sort-either people prostrated by the frowns of by the Statute Law Revision Act of that year. The two

a Vice-Chancellor, or young gentlemen who, finding earlier sections are clearly consistent with the Septennial

the serious results of running away with a ward of court, Act, and without them there would only be the neces

have little inclination to run away from a tipstaff of sities of obtaining supplies, and of keeping up a standing the court. It is obvious that if prisoners of the army, to compel the holding of a new Parliament after type of Mr. Vanner should become numerous, either the Septennial Act should take effect. That Act a chancery prison van will have to be established, or merely provides that Parliaments “shall and may

the chancery tipstaff will have to be selected with have continuance for seven years, and no longer, to be

more regard to athletic capability. The office of tipstaff accounted from the day on which, by the writ of sum.

is one of long standing. Before 1842, when the mons, any Parliament shall be appointed to meet.' Queen's Bench, Fleet, and the Marshalsea Prisons

were consolidated by 5 Vict. c. 22, and the Queen's

Bench Prison was called the Queen's Prison, the IN THE CASE OF In re Worthington & Co., which is Warden of the Fleet had for more than a century had noted in another column, attention was called to a point the right to appoint the tipstaff of the Courts of in connection with the Trade Marks Registration Acts Chancery, Common Pleas, and Exchequer; and the which has not previously been much discussed. Every Marshal of the Queen's Bench Prison, the right to appoint one knows that trade-marks, as they appear in every day the tipstaff to act in the Court of Queen's Bench. By use, are made attractive by the most brilliant colours ; the above-mentioned Act the appointment to these offices but in the Acts which provide for and regulate the became vested in the Lord Chancellor, the Lord Chief registration of trade-marks, and in the rules which were Justice of the Court of Queen’s Bench, the Lord Chief framed by the Lord Chancellor under those Acts, no Justice of the Court of Common Pleas, and the Lord mention is made of colour; and the Commissioners of Chief Baron of the Exchequer. By an order of Lord Patents have, in the exercise of the authority given Hardwicke, made on the 28th of November, 1743, the them by the Act of 1875, directed the registrar not to fees to be taken by “the Deputy-Warden of the Fleet advertise or register marks offered for registration in or the Lord Chancellor's tipstaff” were as follows : any other colours than plain black and white. From 'On every cause that is heard before the Lord-Chanthis one of two results is likely to follow-either there cellor in term time only, he is entitled to one shilling, will be admitted to registration two marks which may which is paid to him by the door-keeper, out of the ten be rendered very similar by the addition of colour shillings which is the usual fee of the door-keeper. For (which is universally employed in practice), though as every day in which he travels to execute any warrant in advertised and registered in black and white the marks the country he is allowed for his expenses, to be paid are distinct; or a mark will be refused registration, him by the party at whose instance the commitment is, though distinct from all the marks on the register, 6s. 8d., and for every mile that he travels upon that when uncoloured, on the ground that a similarity to occasion, his fee is sixpence. When a prisoner is reanother mark may be produced by the addition of moved by habeas corpus from the Fleet Prison to appear something-viz., colour-which the authorities who in court, the said deputy is the proper officer to take regulate the working of the Acts have advisedly resolved care of the prisoner; and to conduct him from the Fleet to disregard. In In re Worthington & Co. the Master Prison to the Court of Chancery and back again the fee is of the Rolls and the Court of Appeal have decided in 6s. 8d.” The Master of the Rolls also had a tipstaff who favour of the latter alternative, and (to use the language received for every cause heard at Westminster, if the bill of Lord Justice Brett) the true test of probability of is dismissed, sixpence ; for every guardian admitted in deception in such cases will be whether the marks will be court, sixpence; for every cause heard in court at the likely to be mistaken for one another when similarly Rolls, one shilling: for every guardian admitted in coloured. The fact that it is thus decided that circum. court at the Rolls, one shilling. Subsequently, in stances which do not appear upon the face of the marks, the year 1848, by 11 Vict. c. 7, it was enacted as advertised, must be taken into consideration in that the tipstaff should give security by bond or determining the question of similarity, must surely otherwise for the faithful discharge of the duties give rise to 2 doubt whether it would not have been intrusted to him, and if he neglects or refuses to give more satisfactory for the marks to be advertised and regis- security shall, for every such default, forfeit the sum of tered in the colours in which they are actually used. £100, to be recovered as the Treasury may direct. This Another argument in favourof such a conclusion is afforded Act is now in force, but whether it is enforced or not we by the fact that it would at once appear what colours were cannot say. The tipstaff no longer receives fees, but is in common use in a particular trade, as green and gold paid by a salary, and his duty is to be always in attendin the Turkey Red Yarn trade. The inconveniences of the ance when any of the ancery Courts existing rule have been experienced by the officials of the Registry Office themselves, for on the original appli- for contempt. These duties are not very onerous.

to convey to Holloway Prison all prisoners committed

tre sitting, and

Chancery prisoners committed for contempt are not the deficiencies of the existing statutory power. The numerous; they consist principally of two classes-viz., next clause proposes to abolish the examination of those who are guilty of contempt in open court by married women and their acknowledgment of deeds; thus assaulting or insulting a judge, such as Cotgrave and as the court solemnly remarked in Lassence v. Tierney, Dodswell, and those who have incurred the displeasure i Mac. & G. 551) depriving “married women of that of the court by interfering with a ward. It would be protection which the law has thrown around them.” rather a high estimate to state the prisoners as averaging The remaining contents of the Bill are stated to relate ten in a year.

to sales and leases on behalf of an infant owner in fee; to the management of infants' estates; to the recovery

of rent charges and to the revocation of powers of THE LORD CHANCELLOR'S LAND BILLS. attorney. Certain technical words in deeds for the conThe Land Bills introduced on Monday by the Lord veyance of land are rendered unnecessary, and long Chancellor are not printed at the time we write, and terms are rendered convertible into fee simple estates. until it is seen how the details of the plan he so lucidly

Finally, the name of the Enclosure Commissioners is expounded are finally worked out, it would be absurd to changed to that of Land Commissioners. attempt any criticism. It is worth while, however, to By another Bill power is given to the Lord Chanpoint out that, in one respect, his speech indicates a

cellor, the Master of the Rolls, and the three result for which we may probably thank Mr. Osborne

Common Law Chiefs to make rules for the remuMorgan's Committee. From one end of the Lord

neration of solicitors for non-contentious business Chancellor's speech to the other there was not a

by charging a commission, and it is also prosingle reference to registration of title. The notion

vided that solicitors and their clients may agree upon that a system which works well in a new colony

remuneration for non-contentious business, but if a percan be adapted to the complex arrangements of

centage is agreed upon it must not exceed that fixed landowners in this country has been exploded, and we

by the authorized scale. Our readers will remember believe we shall be right in predicting that nothing

that from the commencement of the payment by commore will be heard of any proposal to put Australian mission controversy, we have adhered to the opinion wine into English bottles. For the future, simplification that payment by commission is best both for the of transfer will be sought by means of simplification of

public and the profession, and we hope that whatever title and shortening of instruments.

happens to the other Bills this at least may pass into It will be seen from the Lord Chancellor's speech that

law. It is especially important that the profession the information we gave our readers a month ago as to

should forth with come to some final agreement as to the general nature of the steps to be taken in this direc the scale to be adopted, so as to be ready to urge it on tion was correct so far as it went. The general nature

the framers of the rules. We do not see why the Common of the proposals is as follows:-The Bill “for simplify. Law Chiefs should be added to the framers of the ing and improving the practice of conveyancing, and for

rules as to conveyancing costs; these learned judges amending in various particulars the law of property, and

know little or nothing about the subject. for other purposes," extends the principle of Lord

With regard to the Bill of chief popular interestCranworth's Act; and does a good deal more than that relating to the sale of settled estates—it is difficult this. In the first place, certain common form to give any useful outline of its provisions until we are conditions are to be made incident to the contract of in a position to go into details. The proposal with sale, so that such a thing as an open contract will in

regard to existing settlements is to enable the court to future be unknown. Next, the principle of the Scotch

order the sale of settled estates on the application of "certificate of search," to which Mr. Osborne Morgan's the tenant for life alone, after notice to all persons conCommittee drew attention in their report, is to be applied

cerned. With regard to future settlements, the tenant to the searches for incumbrances. The result, we sup

for life is enabled to sell with the consent of the trustees; pose, will be that the search will be made by the office, but if they decline to consent (as practically it may be and the certificate of search will relieve a new pur

anticipated they always will decline), then application chaser from the necessity of a search anterior to its will have to be made to the court. It is also pro. date. The Bill next deals with notice, and its provision posed to give the tenant for life full powers to exwas stated by the Lord Chancellor to be that "a pur. change, to grant agricultural leases for twenty-one chaser of land should not be prejudicially affected by | years, building leases for ninety-nine years, and mining notice of any instrument or fact unless it was within leases for sixty years, and to take surrenders of leases. his own knowledge, or it had come to the knowledge of The proceeds of sales, and capital moneys otherwise pro. his solicitor while acting as such, or would have come to | duced by the exercise of these powers, are to be either the knowledge of the purchaser, or his solicitor as such,

paid to the trustees or into court, and applied to certain if they, or either of them, had made such inquiries as specified purposes-mainly, payment off of incumbrances they, or one of them, ought reasonably to have made." and the execution of improvements on any part of any So far as we can gather from the reports of the Lord land subject to the settlement, the certificate of the Chancellor's speech, the next part of the Bill appears to Enclosure Commissioners being previously required. be an attempt to resuscitate the short form Acts of 1845, The general scheme of the measures deserves hearty which are now chiefly remembered as having been the support. As to the mode of carrying them out in detail occasion for the only gleam of (appropriately ponderous) we reserve our opinion until they are per

we reserve our opinion until they are before us in their jocularity in Mr. Dart's learned volumes. Then follow complete state. provisions as to indorsed receipts and covenants for pro. duction, and, next, the forfeiture of leases question is dealt with in a mode which we have stated elsewhere.

The Hon. John C. Stephen, her Majesty's Second Judge The next part of the Bill deals with mortgages, as to

| or Deemster for the Isle of Man, was found dead in bed which power is given to the mortgagor to inspect the

on Tnesday morning. Mr. St-phen was appointed to the

judgeship in 1855. He presided over a court in Ramsey on title deeds, and restriction is imposed on the consolidation

Monday, and then appeare i to be in his usual health. of mortgages. Leasing powers are also stated to be

At the meeting of the Manchester Chamber of Commerce given to mortgagor and mortgagee in possession, and

on Wednesday a memorial to the Home Secretary in favour new powers to a mortgagee to sell and to insure and to

of effecting amendments in the Copyright of Designs Act, appoint a receiver. The usual clause in wills relating to

extending the time during which designs can be registered trust and mortgage estates is rendered unnecessary by a and the time for wbich regis ration extends, as well as for provision that such estates shall devolve on the personal providing for a less complicated system of stamping, was representative. Next follows a clause relating to the adopted. The memorial also asks that priority of registraappointment of new trustees, supplying, we presume, tion shall be deemed a rightful title to ownership.



[ocr errors]

The returns relating to the criminal classes show that THE JUDICIAL STATISTICS AS TO CRIME.

the number of known thieves, receivers of stolen goods, The returns for 1877-78 recently issued show a decrease, and suspected persons at large in 1878 was 40,626, as with a trifling exception, in the number of the criminal ) against 40,860 in 1877, and 56,584 in 1868. Of the classes at large, and known to the police; but in the total for 1878, 5,683 were under 16 years of age; and of number of houses of bad character there is an increase these 4,496 were males, and 1,187 females. Of the of 328, or 7.9 per cent. As compared with 1876-77 adults, there were 27,087 men, and 7,856 women. As an increase appears in the number of indictable compared with the numbers for the preceding year, those offences reported by the police authorities; as also in for 1878 show a decrease under each of the three classes the number of persons for trial at assizes and sessions ; In the known thieves and depredators, there is a de. and in the number of commitments to prison, as well as crease of 21, or 0:1 per cent. ; in the receivers, a decrease in the number of persons summarily proceeded ngainst of 1 only; and in the suspected persons, a decrease of before justices, an increase has taken place; but the 212, or 0.9 per cent. A comparison of the returns for the namber of convictions for murder in 1878 was but 20, two years shows that in the metropolis the number of the as against 34 in the previous year.

criminal classes has decreased by 169, or 6-2 per cent. ; The strength of the police and constabulary force in but in agricultural towns, the commercial ports, the England and Wales, during the years ending the 29th seats of the woollen and textile fabrics, and the eastern, of September, 1877 and 1878, respectively, was southern, and south-western counties, there has been a follows:

slight increase. The proportion of the criminal classes

1876.77. 1877-78. to the whole population is es 1.78 to 1,000. Besides Commissioners and assistant com

those members of the criminal classes who were at large, missioners

4 4 there were in 1878, 17,625 in local prisons (excluding District and inspecting superinten

debtors and military and naval prisoners) ; 10,358 in dents (Met. police)


4 convict prisons; and 4,883 in reformatories ; making a Chief constables of counties


total of 73,492, as compared with 74,491 in 1877, and Head constables of boroughs

165 163 showing a decrease of 999. Superintendants


521 The number of houses of bad character, exclusive of Inspectors

968 1,283 brothels and places of ill-fame unless known to be the Sergeants

3,119 2,924 resorts of the criminal classes, was 4,440 in 1878, against Constables

24,270 24,804 4,112 in 1877, showing an increase of 328, or 7.9 per Additional constables

434 429 cent. There were 1,082 houses of receivers of stolen Detective officers

470 485 goods; 922 houses the resort of thieves and suspected

persons ; and 2,436 other houses of suspicious character : Total police and constabulary 30,016 30,673

and of the total, 1,359 were in counties, 2,846 in The number for 1878 thus shows a net increase of 657, boroughs, and 235 in the metropolis, including the city or 2-18 per cent. as compared with that for the previous of London. year; and gives 1 for every 740 of the population ac In accordance with established rule, all larcenies recording to the census of 1871, or 1 for every 811 of the ported to the police, when the value is above five shil. population estimated for the middle of the year 1878. lings, are in the first instance recorded as indictable. Of the additional constables, appointed for special When offenders are brought before the magistrates, in 311 belong to the counties, 58 to the boroughs, and 60 any case which is summarily dealt with, the record is to the city of London. In the total number, as given amended, and the case is omitted from the table of above, are included 766 of the Metropolitan police em indictable offences: and larcenies under five shillings value ployed at her Majesty's dock-yards and military stations; are not included in the returns. The total number of inand 384 paid for by public offices and private individuals; dictable offences in 1878 was 54,065, or 3,222 more than but the Liverpool Dock and River Police, 308 in number, in 1877: and in respect of these 24,062 persons were are excluded; and the River Tyne Police, the police at apprehended, as against 23,545 in 1877. There were Birkenhead, and the constabulary at Ramsgate, Tun 18,444 males, and 5,618 females. For want of evidence, bridge Wells, and Hove, are appointed under local Acts. 5,731 were discharged, and for want of prosecution, In 1878 the constables of boroughs appointed under the 1,511; 138 were discharged on bail for further appearMunicipal Corporation Act of 1835, and the constables ance if required; 1,602 were bailed to appear for trial; appointed under local Acts numbered 8,736; the county 41 were committed for want of sureties; and 15,039 were constables appointed under the Constabulary Acts of committed for trial. The numbers of the principal 1839 and 1840 numbered 10,612; the Metropolitan offences in 1878 and 1877 respectively were as follows:police appointed under the Police Act of 1829, including

1878. 1877. the number employed in her Majesty's dock yards, &c.,

Offences against the person ,

2,869 3,006 numbered 10,498 ; and the constables for the city of Offences against property with London appointed under the City Local Act of 1839,


6,744 4,566 numbered 827. The total cost of the police in 1878 was

Offences against property without £2,980,592, as against £2,902,635 in 1877; showing an


41,341 40,598 increase in every item except that for clothing and

Malicious offences against proaccoutrements, which gives a decrease of £7,720, the net perty

479 360 increase for the year being £77,957. The total includes Forgery and offences against the the expenses of the additional constables, and of the currency

964 706 police employed at her Majesty's dock yards, and by

Other offences

1,668 1,607 public offices and private persons ; but these costs are In the two years respectively there were 159 and repaid. For special services rendered by the Metro 138 murders; 82 and 81 attempts to murder; 254 and politan police in the year ended the 31st of March, 1879, 239 cases of manslaughter ; 246 and 224 rapes; 3.700 the amount repaid to the receiver was £127,411 9s. 1d. and 2,342 burglaries ; 2,248 and 1,597 cases of breaking The average cost per man for the whole of the police and into shops, warehouses, &c.; 660 and 525 robberies and constabulary in 1878 was £97 3s. 5d., as against £96 14s. attempts with violence; 355 and 264 cases of horsein 1877, and the total costs of the separate forces in stealing; and 37,024 and 36,434 larcenies, &c.; sliowing 1878 were as follows :-borough police, £768,520 ; an increase under each head in 1878. The cases, howcounty constabulary, £1,031,559; metropolitan police, ever, of shooting at, wounding, and stabbing, decreased £1,088,230; and city of London police, £92,283. Of by 31 ; those of concealment of birth by 19 ; unnatural the aggregate amount, £1,182,013 was contributed from offences by 14; assaults with intent by 54; assaults he public revenue.

by 66; cases of cattle-stealing by 5; and cases of

[ocr errors]


[ocr errors]

sheep-stealing by 46. In 1878 there were 944 cases of attempted suicide as against 879 in 1877.

Rebie ws. The number of persons committed or bailed for trial for indictable offences during the year ending 29th

EXAMINATION BOOKS. of September, 1878, was 16,820; and of this number it may be computed that 12,615 (75 per cent. being the

THE FINAL EXAMINATION Digest; CONTAINING A DIGEST usual proportion) would be convicted. To this number,

OF THE FINAL EXAMINATION QUESTIONS IN MATTERS OP in order to show the total convictions during the year,

LAW AND PROCEDURE, &C., AND ON THE LAW OF Real may be added 538,232 summary convictions before the i

AND PERSONAL PROPERTY, AND THE PRACTICE OF Coxmagistrates, making together 550,847, being an increase

VEYANCING. By EDWARD HENSLOWE BEDFORD, Solicitor. upon the number for 1877 of 18,704, or 3.5 per cent.

Stevens and Sons. The total number of persons summarily proceeded

Mr. Bedford regards this as the crowning stone of the against in 1878 was 676,773, or 548,418 males and

fortifications he has reared against the Incorporated Law 128,355 females; of whom, as above noticed,

Society's examiners. He has arranged alphabetically in 538,232 were convicted, while 138,541 were dis

the order in which the subjects are laid before the charged. The magistrates inflicted various periods of

candidate the final examination questions, and has imprisonment by way of punishment in 106,891 cases ;

appended answers to them which, in the cases we have 369,586 offenders were fined ; 1,548 whipped ; 18,386

examined, are concise and fairly accurate. There are, were ordered to find sureties or to enter into recognizance;

however, some errors of the press which should be 4,197 were delivered up to the army or navy; and

corrected. For instance, we do not recommend the 37,624 were otherwise dealt with. There were 12,583

candidates for the examination to say much about summary proceedings for offences against the game laws,

“Lord Lonsdale's ” decision in Meggison v. Moore (2 as against 13,521 in 1877; for drunkenness and drunken

Ves. jun. 632). ness and disorder, 194,549, as against 200,184; for other offences under the Licensing Act of 1872, 10,341, as

CONSTITUTIONAL HISTORY. against 15,906; for breaches of the peace, &c., 20,709, as against 20,749; for offences under the vagrant laws,

ENGLISH CONSTITUTIONAL HISTORY FROM THE TEUTONIC 43,764, as gainst 40,051; for offences under local Acts


LANGMEAD, B.C.L., Barrister-at-Law. and borough bye-laws, 47,781, as against 45,435 ; for

Second offences under the highway, turnpike, railway, and

Edition. Stevens & Haynes. carriage laws, 31,122, as against 30,858; for offences We are glad to see a second edition of this valuable under the Police Acts, 20,592, as against 18,217; for | text-book. Mr. Taswell Langmead has always seemed offences under the Weights and Measures Act, 4,246, as i to us to meet very well the requirements of the student. against 3,979; for offences under the Mutiny Acts, He is concise, comprehensive, and careful, and his style 6,736, as against 6,929 ; for offences under the Poor Law | is so easy that the general reader will find the book by no Acts, 11,373, as against 10,943; for nuisances and means unattractive. In the present edition, the chapter on offences against health, 11,969, as against 12,493; and the Succession to the Crowa has been remodelled, and under the Prevention of Crime Act, 1871, s. 7, 349, as ! the last chapter largely added to. As it now stands, we against 276.

should find it hard to name a better text-book on Of the persons apprehended for indictable offences, | English Constitutional History. and of those summarily proceeded against in 1878, 14,062 males, and 3,962 females were known thieves ; 22,459 were prostitutes ; 19,620 males, and 4,042 Geireral Correspondence. females, were vagrants, tramps, &c.; 37,971 males, and 6,566 females, were suspicious characters; 32,177 males, ! To CORRESPONDENTS.-S. D. A. S.-A list of the and 12,126 females, were habitual drunkards (not in. manors in which the custom of Borough English precluded under the above heads); 275,810 males, and 37,694 ) vails will be found in Robinson on Gavelkind, p. 391, females, bore previous good character; and the charac but we have not yet succeeded in discovering any list of ters of 187,222 males, and 47,124 females were un

the boroughs where it obtains. Further inquiries will be known.

made. The number of appeals against the decisions of E. K.—Too late for this week.—Bee.-H. G.–Under justices in summary proceedings in 1878 was 154, consideration. against 172 in 1877. In 89, or 57.7 of the cases in 1878 the convictions were affirmed, and in the remainder quashed. Of the appeals, 49 were in cases of bastardy

Cases of the week. orders, and in 32 cases the convictions were añrmod. The summary convictions, exclusive of those in bastardy COURT OF APPEAL_JURISDICTION-RE-HEARING_BANKcases, were 534,881. There was therefore one appeal for RUPTCY APPEAL-PENDING APPEAL TO HOUSE OF LORDS every 5,094, and one reversal of the judgment for every -JUDICATURE ACT, 1873, ss. 17-19-JUDICATURE Act, 11,143 of the convictions. In the cases of disobeying 1875, s. 9_BANKRUPTCY Acr, 1869, s. 71.--In a case of bastardy orders there was one appeal for every 68, and Ex parte Banco de Portugal, before the Court of Appeal on one reversal of the judgment for every 197 of the con the 23rd inst., the court was asked to re-bear pro formå an victions.

appeal from the London Court of Bankruptcy, which had been heard and digmissed in April, 1879, for the purpose of inserting in the order of dismissal a document, as having

been read to the court, which had not in fact been read to On the 23rd inst. the Queen's Bench Division (Lush and it on the hearing of the appeal. The object of tbe applicaManisty, JJ.), on the occasion of an application for time to tion was to enable the appellants to adduce the dooument move for a new trial in a case tried on the Northern Circuit in evidence upon the hearing of an appeal which they bad which ended on Tuesday, stated that in their view of the | presented to the House of Lorde, and which was pending. new rule, which allowed seven days from the end of the It was urged that the principle of the decision in Flower circuits (not “the circnit,” but “the circuits ''), the time v. Lloyd (25 W. R. 793, L. R. 6 Ch. D. 297), that the allowed was seven days from the end of the last or latest of Court of Appeal has no jarisdiction to rehear an appeal the circuits--that is, not the circuit where the cause was from the Chancery Division of the High Court, inasmuch tried, but the circuit which last closed. That, on this occa

as the original jurisdiction of the old Court of Appeal in sion, was the Midland, which closed on Saturday, so that Chancery has been transferred by the Judicatnre Acts, the time allowed for moving a case from any circuit was not to the present Court of Appeal, but to the High seven days from last Saturday.

Court, does not apply to the re-hearing of an appeal

in bankruptoy, because, by section 18 of the Jadica ing to the same mortgagor under different mortgages, is en tore Act of 1873, all the jurisdiction of the former Court of titled to consolidate the two mortgages as against the parAppeal in Bankruptcy has been transferred to the present chaser of the equity of redemption of Whiteacre, when the Court of Appeal, and not merely its appellate jarisdiction, mortgage of Blackacre was created after the sale of and, by section 71 of the Bankruptcy Act, 1869, the Court the equity of redemption of Whiteacre. Bacon, V.C.. on of Appeal in Bankruptcy had an express power of re-bearing the authority of Tassell v. Smith (2 De G. & J. 713), conferred upon it. The court (JAMES, BRETT, and COTTON, beld that the right to coosolidate existed in such a case. L.JJ.) said that it was unnecessary to decide whether they The Court of Appeal (JAMES, BAGGALLAY, and Cotton, would have had jurisdiction really to re-hear the appealupoo L.JJ.) reversed the decision, thus, in effect, overruling new evidence, though BRETT, L.J., was inclined to think that Tassell v. Smith. Cotton, L.J., who delivered the judgthere would have been such a power. But there were two ment of the court, said that the role as to consolidation fatal objections to the present application. If the doon- of mortgages is founded on the equitable principle that ment in question was inserted in the order without alter a court of equity would not assist a mortgagor in getting ing the date of the order, the court would be telling the back one of his estates unless be paid all that was House of Lords that the document was before it on the due to his mortgagee, though secured on a different bearing of the appeal, wben, in fact, it was not-in other estate. The mortgagor was coming into a court of equity words, the court would be making an untrue record. If, to obtain its assistance in getting back an estate which on the other hand, the date of the order on the appeal was at law belonged to the mortgagee, and it was held to be altered, the order would be made to bear a date sub to be inequitable to allow him to get back an estate sequent to that of the presentation of the appeal to the of more value than the debt charged on it, and to House of Lords. The application was accordingly refused. leave the mortgagee with an estate charged with a debt

due by the mortgagor of larger amount than the value


Moreover, as a mortgagor could not be MARK PROPOSED FOR REGISTRATION-COLOUR-TEST OF

allowed to prejudice the rights of his mortgagee by any SIMILARITY.-In a case of In re Worthington & Co., Ex dealings with the equity of redemption of the estate parte Bass, before the Court of Appeal on the 24th inst.,

in mortgage, it had been held that a purchaser or mortthe question was with reference to the registration of a

gagee of one of two estates already in mortgage was, as trade-mark, which Messrs. Worthington & Co. had sent in regarded the consolidation of the mortgages, in the same for registration, but which had been opposed by Messrs. position as the original mortgagor—that is, the parchaser Bass & Co., on the ground that the proposed mark so

of an equity took subjeot to all the equities affecting the nearly resembled their well-known red triangle as to be person through whom he claimed. In their lordships' opinion, calculated to deceive. As advertised for registration and independently of anthority, this principle could not registered, Messrs. Bass & Co.'s mark was represented as

apply where one of the mortgages which it was sought a triangular black blotcb, colour not being allowed by the to consolidate was not created till after the mort. Commissioners of Patents to appear on the register of gagor had sold the equity of redemption of the estate trade-marks. The mark sent in by Worthington & Co. owned by the person who was claiming to redeem. was a new mark, and consisted of a triangular border, If it did apply, the result would be to affect in equity, bearing the words, “ Beccles Brewery, established 1830,"

and by virtue of a rule the creation of equity, the rights of and within the border was a representation of a church, a purchaser by the subsequent act of his vendor. The prinstated to be the church at Beccles, where Worthington & ciple wbich allowed as against a subsequent purchaser or Co.'s business was carried on. The present appeal was mortgagee the right of consolidation was that the mortgagor brought from a decision of the Mast-r of the Rolls by could not by any, dealing with the equity of redemption which he restrained Messrs. Worthington & Co. from pro- prejudice the rights of his mortgagees. This could only ceeding with the registration of the mark. The principal apply to rights already given or arising from acts already question discussed on the hearing of the appeal was whether, done by the mortgagor. The same principle would prevent in estimating the degree of resemblance between the two the mortgagor from throwing a greater burden on the purmarks, they were to be looked as they appeared in the chaser of his equity of redemption by any act done subseadvertisement in the Trade-Marks Journal, in black and quently to the sale or mortgage of this estate. It was true wbite, or whether the probable adoption of colour in actual that a mortgagee of one estate might get in and consolidate practice was to be taken into consideration. In affirming the mortgage on another estate against a purchaser of the the judgment, JAMES, L.J., said that the words “calculated equity of redemption of one of the estates, even though at to deceive" in the 6th section of the Act of 1875 ought the time of the purchase the two mortgages were vested to be construed liberally, so as to advance the remedy and in different persons, provided both the mortgages existed repress the mischief. There might be a substantial differ. previously to the sale of the equity of redemption of the ence if the marks were used in black and white, but the estates sold. But this equity arose out of acts done by the Act said nothing of colour, and if both marks were in vendor of the equity of redemption previously to the sale ; practice coloured in the same way, the differences might dis- and the act after the sale necessary to give effect to the appear. BRETT, L.J., was of the same opinion, and said that right of consolidation-namely, the union of the mortgages the proper test of similarity was to suppose both marks to be on both estates in one person-was an act of persons who registered, that each proprietor was ignorant of the other's were no parties to the sale of the equity of redemption and mark, then would any fair use be calculated to deceive, not bound to the purchaser by any contract inconsistent with without taking into consideration the possibility of a fraudu- the claim to consolidate. In their lordships' opinion, the lent design on the part of one of the proprietors. If the first purchaser of an equity of redemption took subject to such mark might be used in any colour, the second could, so that equities as arose from acts previously done by his vendor. the question was, supposing both marks to be used in He was subject to those eqnities, though acts of persons other practice in the same colour, without intent to deceive, would than the vendor might be necessary to give rise to the equity. the one be likely to be taken for the other ? In the present But in their lordships' opinion he was not suhject to any case if the two marks were similarly coloured, deception equity arising from acts done by bis vendor subsequently to would be probable, though if they were not coloured, it would the sale, and therefore, as against a purchaser of the equity not be. Cotton, L.J., doubted whether the proper way of of redemption of an estate, there could be no consolidation considering the question was not to look at the marks as they of a mortgage subsequently created on another estate. appeared in black or white, leaving out of consideration the Tassell v. Smith had been relied on as an authority the other possibility of one of the marks being subsequently coloure) way. But the reasons given by the judges in that case for in the same way as the other one had previously been, in

their decision were very short, and there might have been which event the unfair use of the second mark might special circumstances which influenced their judgment. probably be restrained in an action grounded on fraud. But, as reported, the case was an authority in favour of the

defendant's contention, and the real question was whether

that decision ought to be followed. It was not a decision MORTGAGE-CONSOLIDATION-REDEMPTION.-In a case of on which the titles to real estates depended. Even if Mills v. Jennings, before the Court of Appeal on the 14th Tassell v. Smith had been in practice followed, no title ipst., an important question arose with reference to the doc would be rendered bad by a decision overruling that case. trine of the con solidation of mortgages viz., whether the With the exception of the present case none had been mortgagee of two estates, Whiteacre and Blackacre, belong. I quoted in wbich Tassell v.* Smith had been followed.

« PreviousContinue »