« PreviousContinue »
LONDON, JUNE 18, 1881.
Ctsbent Topics •>• 017
Tbi Law With Respect To Injected Pbbsons And HOSPITALS 018
The Ibisk Laud Bill 620
CoRBESFONDBNCB •••«, 021
Cases Op Thb Week—
and Dover Railways Joint Committee 021
Law Sii'dents' Jot/bnai 622
Legal Appointments . 623
Companies • 623
Lobd Jesticb James 624
Legislation Of The Week 624
CotriT Papies 025
Cbeditohs' Claims 030
London Gazettes, &c, Ac • 631
Sales Op Thb Ensuing Week 031
CASES REPORTED In The WEEKLY REPORTER.
Attomey.General, The v. Mitchell. (Q.B.Div.) 683
Castro v. The Queen. (H.L.) 089
Dudley Gas Works Company v. Warmington. (Q.B.Div.) 680
Hamilton v. Chaise. (App.) 070
Maltby, In re. (Q.B.Div.) 178
Thornewell v. Johnson. (Ch.Div. V.C.B.) 077
Wright v. Marwood. (App.) 073
There Is No Foundation for the statement that the Tacant lord justiceship has been offered to, and declined by, the Solicitor-General.
It Is Announced that the Master of the Rolls will sit in the Court of Appeal at Lincoln's-inn tor five days next week, commencing on Monday, and will take motions and petitions in his own court on Saturday.
It Is Understood that the chambers of the Master of the Bolls will not be removed to the Royal Courts of Justice until the Long Vacation, by which time the approaches to the rooms on the west side of the central hall, which are being prepared for them, will be completed.
Vict-Chancellor Hall's chambers were removed to the Royal Courts of Justice on Saturday last. They now occupy the second floor in the block on the east side °f the central hall, the judge's room being on the court ^Qor at the north end. It may be convenient to practitioners to know that there are now two entrances to this t»«rt of the building: on the north, from Carey-street, ear the previous entrance, and on the south, from the
Strand, by an entrance inside the archway leading to the great quadrangle.
By The Chancery Cause Lists, which will be found in another column, it appears that the causes set down in the Chancery Division at the commencement of the present sittings numbered 127 before the Master of the Rolls, 45 before Vice-Chancellor Bacon, 120 before Vice-Chancellor Hall, 115 before Mr. Justice Fry, and 49 before Mr. Justice Kay, making a total of 456 causes. At the commencement of Easter Sittings the list of the Chancery Division contained 417 causes, and this time last year the list contained 419 causes, so that the present sittings of the Chancery Division begin witti a rather larger proportion of work than usual. The list of the Appeal Court contains 154 appeals, final or interlocutory. A year ago, the appeals in the list were 196, and at the Easter Sittings, 151.
A Curious Question in connection with the law of homicide recently came before the High Court at Calcutta. In Empress v. Ooneah Dooley (Ind. L. R. 5 Cal. 351) two snake-charmers had been tried for murdering a boy. They were exhibiting to a crowd a venomous cobra, whose fangs (as they knew) had not been extracted, and one of them placed it on the head of a boy whom they had selected to assist them in showing off their dexterity in snake-charming. The boy took fright, and in trying to push away the snake was bitten by it in the finger, and he died from the wound. The jury had acquitted both prisoners, on the ground that the exhibition of snake-charming was authorized by custom, and that they had not intended to kill the boy. The sessions judge thought that they had caused the boy's death by an act of gross negligence, and he referred the case to the High Court. Mr. Justice Mcdonell held that the prisoner who put the snake on the boy's head had been guilty of "culpable homicido not amounting to murder," and not of the minor offence of "causing death by negligence," because he knew that the act was likely to cause death (although he had no intention of causing it), and that the other prisoner was punishable for abetting to homicide.
The Probate in England, within the lost few days, of the will of Pope Pius IX. recalls attention to the rule that our courts will not recognize any will of personalty except such as the Probate Court of this country has adjudged to be the last will. The result is that if any action has to be brought in any of our courts in respect of personal property in this country comprised in a foreign will, probate must be taken out here. At the same time, it is the established practiee of the Probate Court here that where a will has been proved in a foreign court, a duly authenticated copy will be admitted to probate, without further evidence of the validity of the will, as it is presumed that the foreign court has been satisfied on that point [Miller v. Jamta, 21 W. R. 273). Why should not every other court in this country follow the example of the Probate Court, and, without requiring the formality of an English probate, proceed Od a duly authenticated copy of the foreign probate?
"Every Man has a Tight so to shape the disposition of his property as to avoid the probate and legacy duty, if possible, and there is no fraud in so doing" (see Re Evans 2 Or. M. & R. 205). But since the passing of the Customs and Inland Revenue Act, 1881 (44 Vict. c. 12), s. 38 (iu the case of all persons dying after the 1st inst.), the disposition of property cannot be shaped so as to avoid probate duty; hence the use of i/wasi-testamentary voluntary settlements will, in future, be restricted to cases -where the intended objects of bounty are of distant degrees of consanguinity to the person who is providing for them. In these cases it will still be important to save the legacy duty by executing a revocable settlement, for by section 38, sub-section 3, the stamp duty in the settlement is to be returned on the delivery of the account required by the Act, duly stamped.
The Serious Contbovbbsy pending between the telegraph clerks and the Postmaster-General may give rise to more than one important legal question, as to each of which, however, there is happily a fairly certain solution. It is understood that the clerks demand a Civil Service status, disclaim the obligation to work overtime, and claim the same right to "strike" as that which is enjoyed by private employes, not being water or gas employes. The first two points appear to be settled by the Telegraph Act, 1868, and the third depends upon the construction to be put upon the Conspiracy and Protection of Property Act, 1875. As to the Civil Service status, the 8th section of the Telegraph Act, 1868, provided that " such officers and clerks " [of three telegraph companies mentioned in that section] " as enter into the service of the Postmaster-General shall be entitled to count their past years of continuous service with the telegraph companies as years passed in the service of the Crown, and all such officers and clerks shall be deemed to be, to all intents and purposes, officers and clerks iu the permanent Civil Service of the Crown, and shall be entitled to the same but no other privileges." An attempt was made in Reg. v. Po&tmaster-Qeneral (32 L. T. 559) to get this enactment applied to all companies generally whose undertaking became vested in the Postmaster-General, but the contention of the clerks was shown by that case to be hopeless. If it be desired to give the clerks the Civil Service status, which gives, under the Superannuation Act, 1859, a right to a pension, mbject to the power of the Crown to dismiss at any time without pension and without compensation, an Act of Parliament would seem necessary for the purpose. Aa to a " strike," the rights of the parties are not quite clear; but it is worthy of note that the Conspiracy and Protection of Property Act, 1875, amends the law of conspiracy as to "trade disputes" only, and expressly (see section 3) excepts from the effect of that amendment the law relating to (inter alia) "any offence against the State." The hours of work appear to be fixed by section 15 of the Telegraph Act, which empowers the Postmaster-General from time to time to "make regulations for determining the hours during which the offices appointed by him to be places for the receipt and dispatch of messages shall be open for the transaction of telegraphic business." Copies of these regulations must by section 23 fee laid before Parliament, and the same section directs that "all regulations so made shall be binding on the parties interested in the subject-matter thereof to the same extent as if such regulations formed part of this Act." The Memorandum issued by the Post Office authorities distinctly claims the right to exact compulsory overtime work, but not, apparently, on the ground of Hiiy express contract, unless, indeed, the 6th section of the Telegraph Act, 1868, which preserves to the PostOffleo all agreements with the telegraph companies be relied on. "It should be evident to everyone who is conversant with telegraph working," snys the Memorandum, "that it is impossible satisfactorily to dispose of the fluctuating business of a telegraph office without having recourse
to overtime, which is therefore compulsory, and iu this respect there is no change from the practice existing under the late telegraph companies." This seta up an implied contract, the burden of proof of which would rest with the authorities, who, if they could prove it, would, we think, be entitled only to reasonable overtime at a reasonable rate of extra payment to the employei. Probably a petition of right would lie to recover a reasonable remuneration. On the other hand, if the Post Office authorities were to dismiss s clerk for refusing to work overtime, the clerk would' have no practical remedy, for the action of wrongful dismissal is an action of tort, to which the maxim that the Queen can do no wrong would apply. The overtime branch of the case seems to be clearly one for a compromise.
THE LAW WITH RESPECT TO INFECTED PERSONS AND HOSPITALS.
At the present time, when the subject of the provision of hospitals for the smallpox and other infectious diseases is so frequently brought to the public notice, the recent decision of the House of Lords, in the one of Tht Metropolitan Asylums District Managers v. Hill (29 W. R. 617, L. R. 6 App. Cas. 193), is one of considerable interest. The legal questions that may arise with respect to the position of persons suffering from an infectious disorder, and to the mode of dealing with such persons, are questions of peculiar difficulty. Somewhat analogous questions arise with regard to cognate subjects. The law of nuisance in general is fraught with difficulties, and if general principles were pushed to their utmost logical results still greater difficulties would arise. Undoubtedly matters which, in law, are nuisances exist in every direction, and arising, as they do in array cases, out of the exigencies of an advanced civilization, and necessitated as they are by the wants and interests of the community, they are often allowed to exist by a kind, of tacit compromise. Great perplexities, for intUuce, have been experienced in reference to the sewage question. Large towns must get rid of their sewage, and that sewage often creates a nuisance. The conditions of human existence, when population becomes in anywise abundant, are fertile with occasions of nuisance, and in respect of such nuisances a conflict of interests and rights must often arise. The difficulty of reconciling the interests and rights of a person seized with an infectious disorder with those of others is very great. The truth is, that in this and similar cases the question is one of a struggle for existence in which the instincts of self-preservation on either side are very keenly brought into play, and with which the law consequently has much difficulty in dealing, just as it has iu adjusting the rights of landlords and tenants in a country where the necessary conditions of things have produced earth-huuger. The sick man claims to survive and get well, arid to use the best means of doing so. The rest of mankind claim not to be exposed to the risk of infection. In a completely selfish community the infected person would probably be put to death, but the result of civilization is everywhere to modify the struggle for existence, and some compromise between the interests of the two parties must be effectid. It is very difficult to define the rights of the infected person nud the community. For instance, the infected" person, on becoming somewhat better, in order to complete his recovery wishes to go to some other place for change of air. Conceivably his doctor tells him it is of vital importance for him to do so. Does he commit a nuisance to the inhabitants of the place to which he removes by bringing a source of infection iuto their neighbourhood P On the other hand, if he stays where he is, he is a source of infection to those who inhabit his neigbourhood. The same sort of difficulty
arises with regard to hospitals for the treatment of infections disorders. It seems probable that a number of smallpox patients scattered about iu their own homes, possibly in densely-populated neighbourhoods all over a town, must tend to spread infection to a greater extent than hospitals specially provided in paiticulir localities; on the other hand, the particular localities naturally cry out that the whole community ought not to be benefited at their expense. The question is one of great difficulty. Lord Blackburn endeavours in his judgment, in the case to which we have alluded, to lay down some general doctrines and principles of the common law on the subject of infected persons. If any living person could possibly do so satisfactorily, his lordship undoubtedly could, but the result of his endeavour is not entirely satisfactory. Every person who has ever attempted to make legal definitions must many times have with reluctance acknowledged the inevitable necessity there is that legal definitions should contain indefinite terms, and so really be hardly definitions at all. Nevertheless, such definitions, though not perfect, are useful as approximations to definitoness. Lord Blackburn commences his remarks thus: "Those who have charge of a sick person, if he is helpless (whether the disease is infectious or not), are at common law under a legal obligation to do to the best of their ability what is necessary for the preservation of the sick person." This may be admitted subject to the question who can be considered as having charge of a sick person, and whether any person is under legal obligation to have such charge. A person who can be said to undertake the charge is probably subject to the liability. His lordship proceeds: "When the disease is infectious, there is a legal obligation on the sick person and those who have the custody of him not to do anything that can be avoided which shall tend to spread the infection, and if either do so, as by bringing the infected person into a public thoroughfare, it is an indictable offence, though it will be a defence to the indictment if it can be shown that there was a sufficient cause to excuse what is prima facie wrong,"
The question that at once suggests itself to the reader of this proposition is as to the meaning of the term " anything that can be avoided." Lord Blackburn gives as an illustration the case of a person bedridden with an infectious disorder in a house which takes fire, the removal of whom through the crowd necessarily involves the probability of infection to others. He says that probably a much less degree of necessity might form an excuse, but that some excuse is required. He expressly declines, however, to determine what constitutes a sufficient excuse. It is obvious that we are here dealing with cases iu which the limits of the respective rights of the individual and the public are extremely vague and undefinable. In the case selected by his lordship it is obvious that to leave a helpless bedridden person to perish by a horrible death is so dreadful an alternative as compared with the mere possibility of causing the death of another or other persons by the disease, that the law could not possibly undertake to insist on its adoption. And it seems to us, on reflection, to be almost impossible to lay down any principle. It must be in every case a choice of evils the comparison of which must depend on the particular circumstances.
His lordship proceeds to say that when those who have the custody of the sick person have not the means of isolating him from the other inmates, which is often the case with the poor, he is of opinion that that inability would form a sufficient excuse to an indictment for not doing so, and also that the neighbours could not maintain any action for the damage which they would in such case sustain from the proximity of the infected person, it being a necessary incident to the use of property for habitations in town that contagious sickness may befall their neighbours. We doubt whether the absence of means of isolation can be the ground of non-liability. Apart from statutory obligation, we feel very doubtful as to any origiual liability from which
excuse is necessary. The mere fact that a man is sick of an iufectious disorder cannot give rise to a cause of action, and we doubt whether those who are around him can be bound as a matter of law to take any active steps in the matter with regard to the protection of neighbour?. It is obvious that the measure of any such liability would be so vague and uncertain that it might be intolerable. The question what are proper and sufficient measures of isolation would be matter of conflicting opinion as to which experts would differ. Could it be contended that a person iu charge of a patient sick of an infectious disorder is to be liable to an action at the suit of any person who may catch the disease, in which it would depend on the opinion of the jury, based on conflicting testimony of experts, whether this or that particular measure of disinfection or isolation ought to have been employed?
The learned law lord seemB, moreover, from the terms he subsequently employs, to doubt whether there can be said to be any duty in such a case, for he proceeds to say, "If those who have the charge of tho infected person have the means of isolating him on the spot, they certainly do well to use them, and if it cannot be done on the spot, and they can either, by their own means, or by the aid of charitable persons who have erected an hospital, find a place where he can be isolated so as to avoid the risk of infection, they will do well to use those means. I do not mean to express any opinion as to whether at common law they would or would not be responsible for not doing so." He then proceeds, "But there is no authority, and, I think, no priaciple, for saying that they are justified in removing him to a place where the neighbours would be exposed to contagion, though it may be that those neighbours would be fewer iu number than the neighbours of the spot where the infection broke out; nor for saying that if that wa3 done, and the contagion was to amount to a real nuisance, those neighbours might not maintain an action and obtain an injunction to protect themselves against the importation of foreign infection. For though, as I have already said, I think it an incident to the use of a habitation in a town that the occupier must bear the necessary risks of the inmates of a neighbouring habitation falling ill of a contagious disease, I do not think it an incident that he is to submit to his neighbours wilfully, though for very laudable motives and not maliciously, bringing in contagion where it did not previously exist, if the effect is not merely to alarm but to injure him."
We cannot say that we feel very confident as to the absolute soundness of these propositions with regard to the law of the subject, taken strictly. Suppose a patient who falls ill of smallpox in one place is, from reasonable and not merely wanton or selfish motives, removed to another; suppose, for instance, that the father of a family of children removes one of them, being sick of contagious disease, to avoid infecting the others; or suppose that a person living in lodgings in town, without proper means of treatment, is removed by those who have charge of him to his home in the country, and large numbers of persons in the place to which he is removed are infected in consequence, could it be said that every such person would have his action? Those in charge of the patient are, if this be so, placed between the dreadful alternative of disregarding the most obviouB promptings of human nature or of iucurring the most ruinous liability. It is not, to our mind, right that the law should undertake to deal too definitely with such matters. The province of the law is to reconcile the conflicting rights and interests of individuals under ordinary circumstances; it ought not too nicely to prescribe as obligations to be enforced by legal sanctions courses of conduct which contravene ordinary human nature. At any rate we do not think that the common, or, in other word?, judge-made, law ought to do so. There was, it has always seemed to us, something of wisdom iu the timidity of some of the ancient common lawyers, who clung very closely to precedent, applying general principles to well-defined and ordinary cases. The attempt to apply to novel or extraordinary circumstances rules too nicely strict according to the individual reason of the judge, and without any real assent of the Legislature, is one perhaps of doubtful expediency.
Lord Blackburn then proceeds to apply the principles he has enunciated to the case of a hospital, which is, of course, an a fortiori case, for if it be illegal to remove one infected person to a neighbourhood other than that where he falls sick, still more would it be illegal to cause the removal of large numbers of infected persons for treatment to a hospital. We are not convinced that the case of a hospital stands on the same footing as that of the individual infected person. It may do so, but it seems to us safer to deal with it on its own merits. The case differs largely in degree from that of the single patient, and considerations of degree enter very largely into the law of nuisance. For the inhabitants of a neighbourhood to be subject to the percentage of removals thereto of infected persons which the ordinary course of individual convenience aud necessity would occasion, and to be subject to have large numbers of patients assembled from all neighbourhoods for the purposes of treatment, are obviously very different things. In the one case each neighbourhood probably stands about an equal chance ; as the learned law lord says, it is questionable whether it is not one of the ordinary risks necessarily incident to the use of property for habitations. In the other case a most unequal burthen is thrown upon the particular neighbourhood. The case of the hospital, therefore, appears to us a very clear one. The question of the liability for mischief occasioned by the removal of the individual patient is a very difficult one. There are, no doubt, many instances in which an action would lie in such a case as between particular persons between whom a relation exists arising out of contract or of representation. But when no such relation exists, we fiud a difficulty in seeing the exact basis of a legal liability, and we doubt the expediency of creating one, unless indeed the whole question of the treatment of infected persons could be dealt with by the Legislature and proper provisions made with respect to such treatment.
THE IRISH LAND BILL,
In our last article we sketched the provisions for de teimining the tenant's interest in the first instance which seem to us desirable, not less in the interest of the landowners themselves than of the tenantry whose rights are to be defined. Those of our readers who know anything, either by report or otherwise, of "Judge Longfield's scheme" will have little difficulty in seeing that it is essentially reproduced in our proposal; the only differences, indeed, are in two points of minute detail, in both of which we should prefer the original scheme to our own if only it were equally applicable to all possible cases.
According to the scheme in question the statutory tenant-right is to be of a fixed number of years' purchase (seven being the number recommended), and the tenant is, if his improvements, &c, do not, at the time of settlement, reach to the necessary amount, to make up the difference by a payment in hard cash. But there are thousands of tenants to whom an immediate payment of this nature would be simply an impossibility, and who, therefore, could never obtain a statutory tenant-right unless either (1) they were made a present of the difference, which would be ob riously unjust, or (2) they are enabled to obtain just so many years' right as their existing interest will pay for, which is what we propose to give them. Again, under the scheme the existing rent is in every case
taken as the divisor in determining the tenant-right, and this would probably not be unfair in Ulster, where the custom has practically settled the rent in all but a few very exceptional cases: but throughout tho rest of the country (if it be true, as alleged, that the rents are not fair) it would work manifest injustice, because, wherever the rent is too high it would make the divisor too large, and therefore the quotient (the tenantright) too small, and vice versa iu cases of rents at present too low: in other words, it would operate for the benefit of grasping landlords, and against easy ones, being the very reverse of the result to be aimed at. We have therefore thought it necessary to empower the court to fix, for this time only, a "fair rent," not necessarily for adoption by the parties, but as the proper divisor for our sum in arithmetic. As this rent may differ from the rent at present payable, and it is very desirable that the ascertainment of the statutory tenant-right should not necessitate any immediate alteration in the conditions of tenancy (for thus only can hostile litigation be avoided), it becomes necessary to add to the scheme a provision regulating the position of the parties in case neither of them chooses to require an act uaj adoption of the judicially fixed "fairrent." Thisis dono by our proposals 9 and 10. By (9) we secure the tenant a statutory term at the existing rent (whether above or below the "fair rent ") if neither party give the required notice: and by (10) we make it, in many cases at least, the interest of the parties to acquiesce in the existing rent, although it may differ, either war, from the " fair rent." For, if the rent payable be sbote the " fair rent," the actual amount of the tenant-right is correspondingly increased; if below, proportionately diminished, aud it may well be the interest of the party (whichever it might be) in whose favour the question of fair rent had been decided, to submit to a present Iojj, within reasonable limits, for th9 sake of this prospectiie advantage. For example, let us suppose that a farm of thirty acres is at present let at t wenty shillings an acre— i.e., £30 a year—and that the present value of the tenant's interest has been agreed or ascertained at £2 4*1 [we give figures not unlikely in actual practice]. Now let us further suppose that, the parties differing on the question of " fair rent," this is settled by the court at (a) £25 a year, or (3) £33 a year. In case (s) the statutory tenant-right would be 240-5-25=9'— ten years' purchase; in case (fi) it would be 240-j-35= 7 years. Now in case (a), if the tenant gives notice that the rent should be lowered, and is afterwards evicted for breach of some statutory condition, bis compensation will be £250 (i.e., ten years of the lowered rent), whereas if he continues to pay the £30, the landlord cannot evict him without paying £300 (ten years of the actual rent payable), and the extra security thus obtained may be worth more to the tenant—who had previously agreed to £30—than the abatement of £5 in his rent. So in case (0), if the landlord requires the payment of the fair rent of £35, he raises the tenant-right from £210 (seven times £30) to £215 (seven times £W,\ aud it may be better worth his while to leave the rent alone than to increase the tenant-right. It will be observed that in either case the result will be different from what it would have been had the existing rent been taken as a fair one, iu which case the statutory tenant-right would have been eight years, the actnnl value of the tenant's interest, £240, unchanged, but thU value is enhanced iu case (a), as it ought to be, because he ha3 been paying too much heretofore, and diminished in case ($), as it equally ought to be, and for the corresponding reason. So that this proposal would, if » became law, enure for the benefit of the liberal landlord, and the punishment of the "rack renter, whereas both the Act of 1870 and the present Bill act in precisely the opposite direction.
Having thus fixed the statutory tenant-right and the rent for the first term (a term which would be * leg0' term of years, and assignable as such), it only remains to regulate the renewal of the tenancy at the expiration of that or any succeeding term. And this would be simple. At any time -within the last twelve months of the term, and not less than six months before its expiration, the landlord should be at liberty to serve a notice on the tenant, stating the rent he demanded for the next term, and be should not be permitted to resume possession unless the tenant refused to pay the rent so demanded. If no notice is served within the time specified, the landlord should be deemed to have offered to renew the term at the then existing rent. The tenant, within three months after the receipt of such notice, may do either of three things—
(1) He may accept the terms, and thus acquire a fresh statutory term at the new rent—his statutory tenantright being accordingly enhanced.
(2) He may refuse the terms and give up the farm, and in such case he shall be paid his tenant-right, not in terms of the existing rent, but of the increased rent demanded. Thus if, in the case already put, the landlord, at the end of the first term were to require £40 a year, the tenant, if he thought that too high, would be entitled to go out, and receive in case (a) £100, and in case (0) £280, instead of his original £240.
(3) He may serve a counter-notice stating the rent he is willing to pay for the next term (this he may also do within three months after the last day on which the landlord might have served his notice, in cases where no such notice bai been served). In this case the landlord must, withiu three months of the receipt of the counternotice, cither accept the rent offered, and thereby create a new statutory term, or refuse the offer, and buy out the tenant: the tenant-right being in this case calculated in terms of the reduced rent offered by the tenant. Thus, to return to our example, the tenant might reply, I will not give you £40, but I am willing to pay £37; in which case the landlord must either accept the rent, or buy out the tenant by paying (a) £370 or (0) £259, in lieu of the original £240; or the tenant might say, The land has fallen in value, I can't pay you more than £20; in which case the landlord might get back his land by paying in (a) £200, or in 03) £140, instead of the original £240. If neither party serves any such notice as aforesaid within the time prescribed, a new statutory term will ipso facto arise at the old rent: and so toties quoties as long as the tenancy subsists. Thus it is made the interest of the landlord not to ash more, and of the tenant not to offer less, than the true value of the land, because he can only do so at the risk of being taken at his word, and having to pay or accept au unduly inflated or diminished sum in lieu of tenaut-right accordingly.
These provisions, if accepted, would practically supersede clauses 7 and 8 of the Bill, save that clause 8 might, with a few verbal amendments, be framed so as to enable the court to fix with the costs of ascertaining the tenant's interest, or the "fair rent" either party whom it considered to have acted unreasonably: but, after these had once been fixed, all the rest of the work would consist merely in enforcing the statutory contract thus entered into, which would not require any machinery other than that at present existing in the ordinary courts of law.
Part 3 of the Act would, if the amendments we have suggested were made in the earlier parts of the Act, become superfluous; if those parts remain as at present framed, part 3, though it will probably be nugatory, is, at any rate, harmless. We do not think that any landlord and tenant, who would not have made a corresponding Agreement if the Act had not passed, will be induced by anything in the Act to avail themselves of theBe pro.
It is stated that Sir W. Charley (the Common Serjeant) is making satisfactory progress, although it will probably be several we«-ks before he will be able to resume Lis duties. He is suffering from a very mild attack of smallpox.
CAUSE OF ACTION ARISING OUT OF A
[3*o the Editor of the Solicitors' Journal.] Sir,—In Osborn v. Gillett (L. E. 8 Ex. 88) a plea was held bad on demurrer which alleged that the acts complained of amounted to a felonious act, and that the person committing them had not been prosecuted. Strangely enough, this case does not appear to have been cited in the case of The Midland Insurance Company v. Smith, to which you drew attention last week.
Thos. F. Lbadbitter.
144, Leadcnhall-street, London, June 14.
CASES OF THE WEEK.
Railway Company—Diversion Of Road— Level CrossIng—Convenience—Railways Clause* Act, 1845, ss. 16, 46—62.—In an information and action of Attorney-General v. South-Eastern and London,Chalham, and D^ver Railways Joint Committee, before the Master of the Rolls on the 14th inst., a motion was made to restrain the company from erecting certain gates and posts at a level crossing upon a public highway, and not on the land of the defendants, and also from diverting a public highway. Tha defendants contanded that, under the combined effect of their special Act and the Railways Clauses Act, 1845, they were entitled to do the acts complained of. Jessel, M.R., was of opinion, as to the first part of the injunction claimed, that sectioa 47 of the Railways Clauses Act gave the companies no power to place their posts upon the public high road. The gates themselves might, of course, swing upon the public highway, but their right to make a level crossing did not authorize them to place the posts upon the public highway, and snch posts must be upon their own land. As to the other point, section 16 of the Railways Clauses Act gave the company certain powers of diverting roads, but subject to the provisions in that Act and also their special Act. According to the general Act, s. 46 and fallowing sections provided how roads and bridges were to be constructed and were restrictive of the right of diverting, and section 56 required any roal interfered with to be restored as nearly ns possible to the condition in wnich it was originally. Looking at the special Act, all he could find was a provision allowing the companies to cross a partica'ar road by a level crossing. There was no power in the special Act to divert the road as it had besn here diverted, and, in his opinion, the case of Attorney- General v. The Ely, Haddtnham, and Sutton Hallway Company (L. R. 4 Ch. 194), was not an authority in the defendants' favour to authorize them to make the diversion made by them. He must, therefore, grant the injunction asked for, but he would give the company two months before enforcing the latter part as to the road.—Solicitors, Sharps, Parkers, <(■ Co., for TP. Knocker, Dover; W. R. Stevtm, for Q. Wilks, Hytbe.
SOLICITORS' BENEVOLENT ASSOCIATION. The nsnal monthly meeting of the board of directors of this association was held at the Law Institntioo, Cbancerylane, London, on Wednesday, Jnne 8, Mr. John Lewis (Wrexham) in the chair; the other directors present were Messrs. Brook, Francis (Cambridge), Hunter, Kick nun, and Rosooe; Mr. Eitf \ secretary. A sum of £230 was distributed in grants of relief among necessitous solicitors and their families; six geutlemen were admitted members of the association ; and other general business was transacted.