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THE PRESENT LONG VACATION will be memorable as the first in which sittings have been held upon every day in the week, and if Mr. Justice WILLIAMS had not come to the rescue of the chancery list on Wednesday, the arrears would have been still more serious. Mr. Justice CAVE explained last week that there had been some misapprehension as to the practice in judgment summonses, and that leave would be granted to have them made returnable forthwith wherever the creditor would lose his remedy through the matter standing over till the end of the vacation. This announcement will be a relief to the minds of many creditors, but since judgment summonses can seldom be disposed of very quickly, it is to be feared that the precedence given to them will aggravate the "block" which exists in the ordinary business of the vacation.

66

THE DISCUSSION originated by "W. B." in the columns of the Times on the subject of the constitution of the Court of Appeal appears to have, at least for the present, come to a conclusion with the challenge by "B." to Mr. Justice WILLIAMS to "name a few instances, say half-a-dozen to begin with," where a gross miscarriage of justice has taken place," " and whether any of those miscarriages have been set right by the House of Lords, and if not, why not." Mr. Justice WILLIAMS observes that "B." has "carried away a different impression" from that intended to be conveyed in his letter, and probably other members of the profession have fallen into the same error. His statement was "not confined to a particular appellate court," but the principal case present to his mind was a House of Lords case in which the decisions of both courts below were reversed, while he is prepared to furnish "B." with the references to the other cases present to his mind when he is again "within the reach of books." This explanation appears to clear the Court of Appeal from the supposed impeachment of the learned judge, since, if the decision of the House of Lords in the case in question was correct, the error of the Court of Appeal was shared by the court of first instance, where the judges had the necessary thorough practical acquaintance "with the course and incidents of trials. In the opposite view, the fault would rest with the House of Lords; but surely Mr. Justice WILLIAMS does not think it necessary for the Lord Chancellor and the Lords of Appeal to acquire or maintain a knowledge of practice by acting as judges of assize.

A PARAGRAPH is going the round of the papers which says that "the new Judicature Act has caused a stoppage in the Master of the Rolls' Chambers which was not foreseen; that a large number of orders which require the signature of the Master of the Rolls cannot be passed as there is now no Master of the Rolls as a judge of first instance, nor a substitute for him to sign them." Surely there must be some mistake here (it is well known, to solicitors at least, that orders are not signed by the judge in chancery, but we pass over the inaccuracy in the language); all orders made in chambers during the vacation are made in the name of the Vacation Judge, and any order dated in vacation, although made this year in the chambers attached to the Master of the Rolls as a judge of the High Court, should not, and as a fact does not, require that Sir GEO. JESSEL should still be a judge of the High Court for orders to be made by the chief clerks who were lately attached to him if made after the 9th of August. Any order made before that date which requires, not the signature, but the existence, of a judge to support it must wait for a time. The Act provides that the successor of the Master of the Rolls shall be appointed "immediately after" its passing, and this appointment will not be long delayed. After it is made it will have to be supplemented by an order transferring all the causes, &c., of the late Master of the Rolls to his successor as a judge of the High Court attached to the Chancery Division and having chambers, and if that successor should be Mr. Justice KAY, the causes now transferred to him "for the purpose of hearing only" must by the sume or another order be transferred to the new judge who shall succeed Mr. Justice KAY. The necessity for these orders has not been lost sight of, and they will be completed as soon as possible after the occasion arises.

THE ATTORNEY-GENERAL's replies to Baron DE WORMS'S question as to Mr. LEWISOHN's right, as a British subject, to claim asylum and protection from our ambassador at St. Petersburg, in the event of another attempt by the Russian authorities, without any violation on his part of the laws of Russia, to expel him from that country, were not much more satisfactory than the previous statements of Sir CHARLES DILKE. Sir HENRY JAMES pointed to the absence of any precedent for the statement by a law officer of advice which had been given to a department of Government, and the impossibility of his pledging himself as to the advice which he might give in a possible contingency. He also declined to define "the extent to which an ambassadorial right of asylum may, in the present day, be justly exercised," but thought it "much more advantageous that the rights of the subjects of this country should be protected by appealing diplomatically to the sense of justice of foreigu Governments, rather than resorting to the physical protection of that asylum within a minister's house." Mr. LEWISOHN has not, as yet, derived much advantage from the appeal to the sense of justice" of the Russian Government; but the Times now states that the Russian Government has permitted him to pay a temporary visit" to Novgorod, where he had been last year before his expulsion from St. Petersburg. This special permission is, however, a very different thing from the general rights of a British subject, for which Lord GRANVILLE has contended on his behalf.

66

THE LAW of the manufacture, storage, conveyance, and employment of explosive substances possesses a peculiar interest at the present time. The Explosives Act, 1875 (38 Vict. c. 17), deals with the manufacture, storage, and conveyance of "" gunpowder, nitroglycerine, dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires, and every other substance, whether similar to those abovementioned or not, used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect." Under this Act (sections 5 and 39), the penalty is no less than one hundred pounds a day for manufacturing explosive substances at an unauthorized place. By sections 35 and 39, railway and canal companies are bound to make bye-laws regulating the conveyance of explosive substances. The bye-laws under these enactments which are now, we believe, universally adopted by all companies, may be found in (Hodges on Railways), 6th ed., p. 978. By bye-law No. 2, “No person shall send to a company any consignment of explosive, unless he has given to the company forty-eight hours' previous notice in writing of his intention to send such consignment, and stating the true name, description, and quantity of the explosive proposed to be conveyed, and his own name and address, and also the name and address of the proposed consignee, and has had an intimation from the company that they are prepared to receive such consignment"; and by bye-law No. 15, may refuse to receive or may open any packages suspected to be sent in contravention either of the Explosives Act or of any of the bye-laws. As to importation of dynamite, guncotton, or any explosive other than gunpowder, it is provided by section 40, sub-section 9a, of the Explosives Act that the master of any ship having on board any such explosive shall not permit the same to be unloaded and delivered to any person who does not hold a licence to import the same from the Secretary of State. It had previously been provided by the Merchant Shipping Act, 1873 (36 & 37 Vict. c. 85), s. 25, that the master of any vessel, British or foreign, 66 may refuse to take on board any package or parcel which he suspects to contain goods of a dangerous nature, and may require it to be opened to ascertain the fact." Such are the more important of the preventive enactments on the subject, which do not, however, deal with criminal handling, properly so-called, of explosives. For the punitive enact

ments we must refer to the Criminal Law Consolidation Act, 1861, which will be found to be fairly explicit, though perhaps scarcely sufficiently severe. By sections 28 and 29 of 24 & 25 Vict. c. 100, the maliciously causing bodily injury by explosion is punishable by penal servitude for life, and by section 45 of 24 & 25 Vict. c. 97, and section 30 of 24 & 25 Vict. c. 100, the maliciously placing explosives in or near a ship or building is punishable, whether an explosion takes place or not, by penal servitude for fourteen years; but under both these latter sections there must be an intent to do injury, or else the crime is not committed. In any of the above cases, the offender, if a male under sixteen years, may be whipped. Considering the character of the offence, we do not see why the whippings should be restricted to such very young persons, and it is worth considering whether the possession of infernal machines "without lawful authority or excuse, proof whereof should lie on the party accused," should not, following the analogy of certain coinage offences, be made aa indictable offence punishable by penal servitude for life

IN ACTIONS for compensation for personal injuries the most extraordinary claims under the head of consequential damage have sometimes been set up, although they have been always discouraged and ridiculed by judges. Thus in Priestly v. Maclean (2 F. & F. 288), Sir WILLIAM ERLE observed, "Supposing a lady to have been injured and disfigured in a railway accident, she could not say that she ought to recover damages because she was prevented from going to a ball at which she might have met a rich husband." The case there supposed appears to have actually arisen in America, for in Hanover Rail way Company v. Coyle (55 Pens. 396), a young lady who had been injured and disfigured claimed additional damages "because the prospects of her forming a matrimonial alliance were diminished," and she appears only to have failed" for want of evidence, and because the claim was not laid at special damage." We also learn that an actress who has been injured by a carriage accident and has lost the tip of her nose, though otherwise uninjured, is now suing for damages in a French court, on the ground that her diminished attractions have reduced the amount of salary which she is able to earn; but here the pecuniary loss, though not the direct consequence, may no doubt be considered a necessary consepuence, of the injury.

THE LAW OF LICENSING.

I. NEW LICENSES.

THERE are required by law game licenses, dog licenses, licenses to keep male servants, and many other licenses, but of late years the law of licensing the sale by retail of intoxicating liquors has occupied so much of the attention of the profession and the public, that the liquor license has become the license par excellence. It is now nearly ten years since the "Licensing Act, 1872" (35 & 36 Vict. c. 94), amended "the law for the sale by retail of intoxicating liquors, and the regulation of public-houses and other places in which intoxicating liquors are sold," and made "further provision in respect of the grant of new licenses for the sale of intoxicating liquors, and the better prevention of drunkenness." That Act was followed in two years by the Licensing Act, 1874, and in the course of last year by the Beer Dealers' Retail Licenses Act, 1880 (43 Vict. c. 6). The first of these Acts created a new kind of license, called the "provisional license," which allows a license to be applied for before premises proposed to be licensed are actually built, and otherwise mitigated the severity of the Act of 1872. The latter of these Acts once more set the legislative machine in the direction of

severity by giving the justices discretion to refuse the "beer dealers' retail beer license."

Neither of the Acts makes any attempt at consolidation, and with the exception of the consolidation of the police clauses, which was effected by the Act of 1872, there has been no consolidation of the Licensing Acts since some score of statutes on the subject were "reduced into one Act" by 9 Geo. 4, c. 61, in 1828. Since that Act there have been passed so many amending Acts, and the controversies amid which they have been passed have been so exciting, that the whole law has passed into a state of confusion-the natural results of a series of oscillations from severity to relaxation, and from relaxation to severity.

We propose to examine the leading branches of licensing law under the three heads of "New Licenses," "Renewals," and "Transfers," and to devote the present article to the consideration of new licenses properly so called. We say properly so called, because in one sense, and perhaps in the popular sense, a renewed license and a transferred license is also a new license. The renewed license is a new license in law, because in law (see 9 Geo. 4, c. 60, s. 13) every license continues in force for one year only. The transferred license is a new license because, in fact, the holder is a new person.

The new license, properly so called, is the license attached to a house which has not before been licensed. Its distinguishing marks are, that the grant of it requires to be confirmed by a further court of justices, while from the refusal to grant it there is no appeal. The statutory definition of it is provided by section 32 of the Act of 1874, which prescribes that a "new license' 66 means a license for the sale of any intoxicating liquor granted at a general annual licensing meeting in respect of premises in respect of which a similar license has not been theretofore granted."

A curious question arises upon the construction of the interpretation clause. Does " has not theretofore been granted" mean "has never theretofore been granted" or has not been granted at the annual licensing meeting immediately theretofore held ? In other words, is a dropped license a lost license, or has the owner of a house to which a license has in any prior year been attached, but for which no renewal has been applied for, the privileges of an applicant for renewal? This is a question which, as far as we know, has not come before a court of law. On the whole we think that unless the license has been continuously kept up, the privileges of renewal lapse, and that a new license must be applied for. If "theretofore" is to have the wide sense of "at any time theretofore," there is no reason why the privileges of renewal should not be claimed by the owner of a house which was licensed fifty years ago, but which has been in fact closed for business purposes for fifty years, and by reason of the closing of which other licensed houses, with an undeniable privilege of renewal, have sprung up in the district. This seems an absurd result. On the other hand, the word "theretofore" is ambiguous. However this may be, let us pass to the consideration of the notices required for new licenses.

The notices are prescribed by section 40, sub-section 1, of the Act of 1872, which incorporates "section seven of the Wine and Beerhouse Act, 1869, and any enactment amending the same." The effect of these three enactments (only one of the enactments amending the Wine and Beerhouse Act, 1869-i.e., the Wine and Beerhouse Act Amendment Act, 1870, s. 4, bears on the question of notices) is shortly as follows::

The applicant must, twenty-one days at least before his application, give a notice (which may be sent by post) stating his name and address, and other particulars, to one of the overseers of the parish, and to the superintendent of police of the district. A similar notice must also be posted on the door of the premises proposed to be licensed, and also on the door of the parish church. Further than this, advertisements of the intended application must be inserted in some news

paper circulating in the neighbourhood on some day not more than four nor less than two weeks prior to the application. Cases, of course, must frequently happen where there is a failure to comply with all those minute directions as to notices, and the question arises whether such failure is or is not fatal to the applicant. As we shall presently see, the absolute discretionary power of the justices to grant or refuse a new license makes such an inquiry unnecessary in event of the licensing court being inclined to refuse an application. The licensing justices may refuse without rendering reasons-à fortiori, therefore, they may refuse upon the ground of any, even the slightest, defect in the notices. But, assuming that the licensing justices are inclined to waive the objection on the ground of informal notices, have they jurisdiction to do BO ? This is a far more difficult question. Upon the whole, we think that a license granted after informal or bad notices might be brought up on certiorari and quashed, but that, so long as the license remained in force, no conviction could be obtained for selling without license. The general question—long a doubtful one-whether a penalty for sale without license can be incurred by the holder of a license which is void from an irregularity in the jurisdiction of the justices who granted it, appears to have been answered in the negative in Stevens v. Emson (L. R. 1 Ex. D. 100). But that case is distinguishable on the ground that in it the irregularity in the jurisdiction of the justices could not have been known to the license-holder, whereas an irregularity arising from informal notices would be ex necessitate within his knowledge, for it would be himself who would have given the notices in question. The point, therefore, though touched by Stevens v. Emson, is not concluded by it.

We now come to the hearing. This is governed by the Licensing Act, 1828, s. 1, et seq., and by the Licensing Act, 1872, ss. 36 and 37. Any person whatever, as far as we know, has a locus standi to oppose the grant. The justices have jurisdiction, under 14 & 15 Vict. c. 99, s. 16, to take evidence on oath, but they are not bound to do so; and in practice grants are, we believe, frequently opposed by means of a petition. In the whole conduct of the hearing very great latitude is given by law to the licensing justices, and their powers and course of practice are little touched by statutes or cases. Three points however are absolutely certain. First, the justices must give the applicant a hearing (Reg. v. Walsall Justices, 1 C. L. R. 100) Secondly, the justices must give his opponents (if any) a hearing to this extent at least-they must hear, if tendered, evidence to the effect that the number of exist ing public-houses is sufficient for the requirements of the public (Reg. v. Lancashire Justices, 19 W. R. 203, L. R. 6 Q. B. 93). Thirdly, the parties having been). heard, the justices have absolute discretion to grant or refuse the application-unless indeed the application be for a license to sell liquor not to be drank on the premises where sold, in which case the application can only be refused upon either of the four grounds specified in section 8 of the Wine and Beerhouse Acts 1869, which all relate to the character of the applicant or

his house.

The case of Reg. v. Sylvester (31 L. J. M. C. 93) is a vory curious one, and should be noticed here. In that case justices had refused to renew the license of every person who had not taken out an excise license to sell spirits. The judgment of the court, which was given on a special case stated by quarter sessions on appeal, is to some extent an authority that a license cannot be granted conditionally, and R. v. Athay (2 Burr. 653) is to the same effect. But if that case be carefully examined, we doubt whether it comes to more than a decision that the discretion of the justices had not been judicially exercised in that particular case. We think, on the whole, that it would be within the jurisdiction of justices to grant a license on condition that it should be used in a par. ticular way, on pain of losing the renewal, and that the

refusal to renew in event of the condition not being complied with would be upheld by a court of law. In two particulars the statutes have expressly authorized conditions to be annexed in respect of Sunday closing and early closing. The 49th section of the Act of 1872 enacts:

"Where, on the occasion of an application for a new license, the applicant at the time of his application applies to the licensing justices to insert in his license a condition that he shall keep the premises in respect of which such license is to be granted, closed during the whole of Sunday, the justices shall insert said condition on his license."

Similarly, the 7th section of the Act of 1874 authorizes the application for, and directs the grant of, an "early closing license "—that is, a license containing a condition that the applicant "shall close the premises one hour earlier at night than that at which such premises would otherwise have to be closed." Upon these enactments the questions arise-(1) whether justices may force such conditional licenses upon an applicant; and (2) whether they have jurisdiction to enlarge or restrict the conditions as defined by the statutes. We think that the absolute discretion of the justices practically enables them to force conditional licenses upon applicants, and so, for instance, to enforce Sunday closing as far as new licenses are concerned, but that there is no jurisdiction to travel within or beyond the limits of the conditions as defined by statute.

Finally we come to the "confirmation" of the grant. This is a procedure which, though quite new in 1872, ought to have become tolerably familiar by this time. The constitution of the confirming body, however, differs SO much in counties and in boroughs, that it may be well to refresh the memory by a short summary of the elaborate provisions of the Licensing Act, 1872, by which it is regulated. There are three kinds of confirming bodies: first, there is the confirming body in counties, which is called the "county licensing committee." By section 37 of the Act of 1872 this committee is to be annually appointed by justices in quarter sessions. The quorum is three members, and the greatest number is twelve members. In boroughs where there are ten acting justices or upwards, the confirming body is by section 38 "the whole body of borough justices, or a majority of such body present at any meeting assembled for the purpose of confirming licenses." The quorum is three members. In boroughs where there are not ten acting justices, the confirming body is a "joint committee" consisting of three justices of the county in which such borough is situate and three justices of the borough," the three county justices to be appointed by the county licensing committee, and the three borough justices to be appointed by the justices of the borough, or by a majority of such justices assembled for licensing purposes. It is added by section 21 of the Act of 1874 that, "where from any reason there are not for the time being three qualified borough justices to form the quota of a joint committee," the deficiency in num. ber is to be supplied by "qualified county justices, to be appointed by the county licensing committee."

No time for the meeting of the confirming bodies appears to be prescribed by statute. A mandamus would no doubt issue to appoint the confirming body, but whether it would issue to that body when appointed to hold its meetings, and within what time, is not so clear. We think, however, that a mandamus would issue to hold a meeting within a reasonable time. One thing, however, is quite clear, that whether they meet soon or tardily, willingly or unwillingly, the confirming body have precisely the same discretion to confirm or not as the licensing justices have to grant or not, and we have already pointed out that that discretion is "absolute."

RECTIFICATION OF THE REGISTER OF TRADE-MARKS.

I.

RECENT decisions have given much prominence to the subject of rectification of the register of trade-marks, and, therefore, it may not be out of place to offer some observations on the cases relating to the subject, omitting those in which contests between individuals have been fought out on applications to register opposed in the ordinary way.

The 5th section of the Trade-Marks Registration Act, 1875, enacts as follows:-"If the name of any person who is not, for the time being, entitled to the exclusive use of a trade-mark in accordance with this Act, or otherwise in accordance with law, is entered on the register of trade-marks as a proprietor of such trademark, or if the registrar refuses to enter on the register as proprietor of a trade-mark the name of any person who is, for the time being, entitled to the exclusive use of such trade-mark in accordance with this Act or otherwise in accordance with law, or if any mark is registered as a trade-mark which is not authorized to be so registered under this Act, any person aggrieved may apply in the prescribed manner for an order of the court that the register may be rectified; and the court may either refuse such application, or it may, if satisfied of the justice of the case, make an order for the rectifica tion of the register, and may award damages to the party aggrieved." Then, after making provision for the case of rival claims to a mark, the section proceeds:

"The court may, in any proceeding under this section, decide any question as to whether a mark is or is not such a trade-mark as is authorized to be registered under this Aet, also any question relating to the right of any person who is party to such proceeding to have his name entered on the register of trade-marks, or to have the name of some other person removed from such register, also any other question that it may be necessary or expedient to decide for the rectification of the register."

The effect of this section is to authorize the courti.e., the Chaucery Division-upon application by any person aggrieved, to correct any error of commission or omission in the register - of commission, by the registration of any person or mark not entitled to registration-of omission, by the non-registration of any person entitled to registration, and also to decide any question which it may be necessary or expedient to decide for the rectification of the register. When the question is with reference to the qualification of a mark for registration, then, as was said by Lord Cairns in Orr Ewing v. Registrar of Trade Marks (28 W. R. 17, L. R. 4 App. Cas. 479), "the first duty cast upon the court is to ascertain whether some one, or more than one, of the essential particulars of a trade-mark, as defined by the Act, is found to exist, so that the mark may be described with the one, or more than one, essential particular or particulars which distinguish it." When the question is with reference to the right of a person to registration, the language of Lord Blackburn in the same case becomes applicable: "I cannot construe this section as meaning anything else than that, when the court is satisfied that the applicant is a person who is, for the time being, entitled to the exclusive use of a trade-mark in accordance with law, and that the trade-mark is one within the definition in section 10 of the Act of 1875, the court is, ex debito justitiæ, to rectify the register, just as it would, before the Act of 1875, have been bound, ex debito justitiæ, on similar proof, to prevent anyone infringing the trade-mark shown to be his property. The burden of proof lies upon the person making the application to amend the register; but if he does produce such proof as would, in the opinion of the court, entitle him to an injunction, I do not think that the words if satisfied of the justice of the case' can,