« PreviousContinue »
pal regulation the United States have, historically speaking, been issued by the Home Secretary, and which confine within the advantage. A hundred years ago they attempted to put a narrow limits the time during which any belligerent ship can stop to the practice of European nations enlisting men and remain in a British port and the supplies which she can obtain, equipping vessels in their ports for the purposes of European and also require an interval of twenty-four hours to elapse war, and by an Act of Congress of 1794, revised and re-enacted between the departure from the same port of ships of opposite in 1818, it was declared to be a misdemeanour for any citizen of sides. It is interesting to note that the United States, in whose the United States within the territory or jurisdiction thereof to favour the rules were originally conceded, have had to suffer for enlist soldiers or seamen, or fit out any ship, or augment the them at the outset of the war by the probably permanent detenforce of any ship of war, for the purpose of hostilities with a tion in Falmouth Harbour of the torpedo-boat Somers. state with which the United States were at peace. But the declaring of these principles was a different matter from securing their observance, and in the first half of the century Spain THE QUESTION whether or not the Preferential Payments in had frequent occasion to complain of the fitting out in the Bankruptcy Amendment Act, 1897, is retrospective in its operaUnited States of privateers and expeditions aimed at her com- tion, came before the courts for decision in two different cases merce or territory. The most noticeable instance was the ex
last week. Section 2 of the Act, in effect, gives priority in the pedition fitted out by LOPEZ against Cuba in 1849, with the winding up of any company under the Companies Acts to the object of annexing the island to the United States. LOPEZ was debts mentioned in section "1 of the Preferential Payments in twice prosecuted by the United States Government, but no con- Bankruptcy Act, 1888, over the claims of holders of debentures viction was secured, and his punishment was left for the or debenture stock under any floating charge created by such Spaniards, who executed him at Havana on the failure of his company, but only in so far as the assets of the company avail. second expedition in 1851. In England the earliest authority able for the payment of all general creditors may be insufficient upon foreign enlistment seems to be the case referred to in to meet such debts. The debts specified in section 1 of the Act Fortescue's Reports, p. 388. In 1721 the judges were ordered of 1888 comprise parochial and local rates, taxes, land tax, to attend the House of Lords to advise upon a complaint made
property or income tax, the wages or salary of any clerk or by Sweden that ships had been built and sold to the Czar; and servant, and of any labourer or workman, due from the bankrupt they gave it as their opinion that the king had by law no power to
or company in respect of certain periods prior to the bankruptcy prohibit the building of ships of war or of great force for foreigners or winding up. The Act of 1897 received the Royal Assent in any of his Majesty's dominions. Acts for the
on the 15th of July, 1897, but it does not contain any propreventing the enlistment of British subjects for service abroad vision fixing a date on which it is to come into operation. were passed in 1736 (9 Goo. 2, c. 30) and 1756 (29 Geo. 2, c. 17), In each of the cases above referred to the winding-up had combut the first proper Foreign Enlistment Act was 59 Geo. 3, c. menced, and the debenture-holders' action had been brought, 69, which followed by a year the present statute of the United before the 15th of July, 1897. The first case was that of Re States. Its provisions have been carried further by the Act of The Waverley Typewriter (Limited), which came before WRIGHT, 1870, and in particular an embargo is now placed upon the J., in the Companies (Winding-up) Court, upon a claim by some building of ships in this country for the use of foreign belli. workmen, to whom the company was indebted, for the prefergerente. Thus section 8 provides that it is an offence against ential payment of moneys due to them in respect of wages. the Act for any person within the Queen's dominions, without WRIGHT, J., decided that the Act of 1897 was not retrospective the licence of the Queen, to build or agree to build or cause to in operation, and disallowed the claim. In his opinion the Act be built any ship, with intent or knowledge or having reason- of 1897 formed part of the Act of 1888, which in terms only able cause to believe that she will be employed in the military applied where a winding up had commenced after the comor naval service of any foreign state at war with any friendly mencement of the Act. In the subsequent case of Weekes v. The state.
Kent, Sussex, and General Land Society (Limited) (reported else
where) before KEKEWICH, J., the Commissioners of Inland As BETWEEN Great Britain and the United States the conduct Revenue raised a claim for the preferential payment of a year's of the former on the present occasion is governed by the rules income tax due to them from the company. Counsel annexed to Article VI. of the Treaty of Washington, which, for the company referred to Re The Waverley Typewriter briefly stated, provides as follows: Å neutral Government is (Limited), and KEKEWICH, J., without expressing any opinion on bound (1) to use due diligence to prevent the fitting out within the point, followed the decision of WRIGHT, J., and held that as its jurisdiction of any vessel which it has reasonable ground to the Act was not retrospective, that the claim failed, and that believe is intended to carry on war against a Power with which the Crown must pay the costs of the summons. In deciding as it is at peace, and also to use the like diligence to prevent he did, WRIGHT, J., followed the principle discussed by Sir the departure from its jurisdiction of any vessel intended to GEORGE JESSEL in Re Joseph Suche & Co. (24 W. R. 184)— carry on war, such vessel having been specially adapted, in namely, that when the Legislature alters the rights of parties whole or in part, within such jurisdiction, to warlike use; by taking away or conferring any right of action, its enact(2) not to permit either belligerent to make use of its ments, unless in express terms they apply to pending actions, ports or waters as the base of naval operations against do not affect these rights, except in so far as such enactments the other, or for the purpose of recruiting or of renewing relate merely to procedure. By the Act of 1897, which did not or augmenting military supplies; and (3) to exercise due come within the exception, the Legislature had interfered with diligence in its own ports and waters, and as to all persons within the rights of debenture-holders if they had not taken steps to its jurisdiction, to prevent any violation of the foregoing duties. realize their securities before the passing of the Act, but it had These rules form a curious instance of ex post facto legislation. not gone so far as to interfere with their rights when they had They were formulated by the United States with a view to already taken those steps. stating the principles of international law on the subject of foreign enlistment at the date when The Alabama was allowed to be equipped in England. The British Government refused to THE HEAVY loss usually inflicted upon the owner of a publica admit that the rules were any part of international law, but in house by the refusal of justices to renew its licence makes every order to evince its desire of strengthening the friendly decision of the courts as to the powers of justices to so refuse relations between the two countries, and of making satisfactory of peculiar interest. The latest of such cases is Baxter v. Leche provision for the future, it was agreed that the Alabama (ante, p. 430), which was a special case stated by the Court of Arbitration should be conducted on the assumption that the Quarter Sessions for Cheshire, on an appeal against the refusal rules had been previously in existence, and also that the of justices at an adjourned annual licensing meeting to renew the two countries should observe the rules as between themselves in appellant's licence. The general annual meeting was held on the future.
The rules themselves are expressed in general the 31st of August, and no notice was given to the appellant terms, and the practical application of them, so far as concerns requiring her to attend, or of any intention to oppose the the use by foreign belligerents of the ports and harbours of the renowal. At the meeting, however, some of the jusfices of themBritish Empire, is contained in the regulations which have I selves started an objection to the renewal, and accordingly, by
their instructions, their clerk, on the 3rd of September, served to register the estate by the curtesy shall be in form 44 in the the appellant with a notice,“ on behalf of the licensing justices,” First Schedule. Though it may have been right in 1875 to requiring her to attend at the adjourned meeting to be held on provide (see section 52) that an estate by the curtesy should be thö 28th of September. No other objection was made at the registered as an incumbrance, this in effect appears to have been annual meeting. On the 20th of September certain persons, not repealed by the Act of 1897, s. 6 (1) (10), under which a tenant justices, served upon the appellant notice of their intention to for life within the meaning of the Settled Land Acts may at his oppose the renewal of her licence on certain grounds stated option register settled land in his own name. Now, under the therein. The appellant and her solicitor appeared at the ad- Settled Land Act, 1882, s. 58 (viii.), a tenant by the curtesy who journed meeting and objected to the validity of the notices. is in possession or entitled to the receipt of the rents and profits The renewal, however, was refused; the refusal was upheld by (Bates v. Kesterton, 1896, 1 Ch. 159, 164) is a person having quarter sessions, and the Divisional Court has confirmed the the powers of a tenant for life. It is almost inconceivable to decision of quarter sessions. Now, section 42 of the Licensing suppose that a person having powers under section 58 is not & Act, 1872, after providing that a licence-holder need not attend tenant for life within the Land Transfer Act, 1897, s. 6, hence it in person at the annual meeting unless he is required, and that follows that an estate by the curtesy should at any rate only be no objection shall be entertained unless written notice thereof capable of registration as an incumbrance where it is not an has been served upon him not less than seven days before the estate in possession. meeting, contains a proviso "that the licensing justices may, (2) Right of consolidation.-Rule 112 is as follows: notwithstanding that no notice has been given, on an objection "Where a charge, whether affecting the whole or a part of being made, adjourn the granting of any licence to a future the land comprised in a title, reserves the right to consolidate, day, and require the attendance of the holder of the licence it shall not on that account be registered against any other land on such day, when the case will be heard and the objec, than that expressly described in it.” In so far as this rulo tion considered, as if notice herein before prescribed had recognizes that the former practice at the Land Registry, which been given.” It was held in Daykin v. Parker (42 W. R. prevented any such right being reserved, is to be discontinued, 625 ; 1894, 2 Q. B. 273) that an objection made openly the rule is in the right direction, but it seems to throw conat the annual licensing meeting is a good " objection siderable doubt as to the manner in which the right of consolimade," although the nature of the objection is not stated dation is to be enforced. It is conceived that the intention is at the time by the objector, and that, upon such an objection that the mere reservation of the right is not to operate unless being made, the justices have power to postpone the con- something is done by the chargee to exercise the right, but sideration of an objection to an adjourned meeting. Still it this we submit is by no means clear. seems clear that the objection considered at the adjourned
(3) Registration of executor without probale.-Under rule 126, that the objector was the same person. It appears also that the where, on the grant of probate to A., the right to come in and Act contemplates only the objection" made at the annual has accepted the executorship and desires to be registered, the meeting being considered at the adjourned meeting; In Baxter registrar is bound to register him as joint proprietor with A. v. Leche, however, the notice of the 20th of September seems to before B. has proved the will. No doubt such an extraordinary have been given by persons who had raised no objection at all provision must have engaged the serious attention of the Rule at the annual meeting: If, therefore, this decision stands, the Committee, but at first sight it is not obvious what benefit can fact that if, for an objection started by one of their own body, accrue by it, while serious inconvenience might be caused if B. justices adjourn an application for a renewal, the case is opened were to die before he took out probate. At any rate, probate to the whole world, and anyone who serves due notice before should be produced to the registrar within a limited time from the adjourned meeting has power to oppose the renewal. the application for registration. Leave to appeal was given by the Divisional Court, and, as this is a serious matter for licence-holders, probably the practice of referring to other rules by number has been adopted.
(4) Cross-reference8.—Throughout the rules we find the dubious question will be heard of again.
In cases of hurried alterations this may lead to considerable error, and even now it will be observed that in rules 246 and 247 rule 151 has been referred to when clearly 152 is intended.
(5) Value of registered land.-In form No. 1 and in other THE LAND TRANSFER RULES.
forms it will be observed that a declaration as to the value of The draft of the rules made under the Land Transfer Acts, 1875 the land is to be made; presumably in order to enable the ad and 1897, has been issued, but the publishers have, we under-valorem fees to be assessed and to afford information to persons sand, been directed for the present not to issue any further lending on the security of the land. It appears, however, to copies to the public. This direction, we apprehend, has been have escaped attention that the land may be subject or not to probably given with a view to the correction of certain clerical incumbrances; at any rate it should be stated whether in the and other errors, which may have been discovered in the draft. valuation regard is to be had to incumbrances, and further, it Our subsequent remarks are consequently subject to such modi- might be well to define the classes of incumbrances, if any, fication as may result from the alteration of the draft now before which ought to be taken into account.
(6) Restriction where tenant for life is registered as proprietor, There are 270 rules and two schedules ; the first schedule and there are trustees of the settlement. The restriction contained containing sixty forms, and the second the provisions respect- in form 5 in the First Schedule appears to go too far, inasmuch ing the remuneration of solicitors; the whole draft occupying as it would prevent any mortgage from being made under the sixty-two pages of folio. When we consider that the Act Settled Land Act, 1882, 8. 5, or the settled Land Act, 1890, S. of 1875 contains 127 sections, which cover 32 pages in the Law 11, without an order. It may be that the Land Transfer Acts Reports, and that the Act of 1897 contains 26 sections and do in some respects fetter the powers conferred by the Settled covers 15 pages in the Law Reports, we may be able to form Land Acts, and in so far as this is the case we think that consome slight conception of the vast mass of statutory provisions stitutes a serious objection to the machinery of the first-named which have been thought necessary in order to constitute a Acts. In the present case, however, we submit that the restricsystem of registration of title.
tion is unnecessarily onerous. Thus if it were provided that-. Within the very short time at our disposal since the draft Until further order, no transfer or charge of the land is was received, it is impossible to form a proper judgment of the
to be made unless the consideration money is paid to labours of the Rule Committee, but it is hoped that the following
A. B. of &c., and C. D. of &c. [the trustees of the settlecriticisms may be of some service, more particularly as the ment] or into court draft does not appear to have been finally settled. They must —the effect of the Settled Land Acts would be preserved and be taken as first impressions only.
ample protection would be secured that no improper disposition (1) Tenant by the curtesy.--By rule 7 it is provided that the was made. Charges Register shall contain incumbrancos, including notices Where the tenant for life has a power to chargə for his own of estates by the curtesy. Rule 161 provides that an application benefit an exception might be introduced into the restriction,
though there would not be much harm if in this case the money It is certain, however, that there is no lack of eminent authorwas paid in the first instance to the trustees, who would be ities who have no such mistrust of the proposed change, and for bound to pay it over to the tenant for life.
practical purposes the matter has to be decided not bý balanc(7) Transfers to the uses of a settlement.-In forms 15 and 17 it ing against each other the views of individual judges or lawyers, will be observed that it is contemplated that where registered but by broad considerations of what course is most calculatod land is conveyed to the uses of a settlement, the Settled Land to further the interests of justice. Act trustees may be registered as proprietors. Now, we submit
The most noteworthy statute under which the testimony of that this is clearly improper. The settled Land Act trustees as prisoners is at present admitted is the Criminal Law Amend. such have no power of sale, though trustees with a power of sale ment Act, 1885, and the argument is a perfectly fair one that are trustees for the purposes of the Acts. If any rule made either the competency of prisoners must be made universal or under the Land Transfer Acts can be ultra vires, we submit that abolished. Much is said by the opponents of the Bill about this is, for on reference to the Land Transfer Act, 1897, s. 6 (1), securing respect for the administration of the law and upholding it will be found that although the tenant for life may at his the high standard to which it has attained. But there can be option register the land in his own name or in the names of no respect for a system of law which is inherently absurd, and trustees with a power of sale, he has no power to register it a law which makes the evidence of a prisoner admissible or not in the names of trustees for the purposes of the Acts unless they according to the form in which the indictment is drawn, is have a power of sale. It is true that the trustees have during obviously open to this charge. The resistance to the Bill the minority of a tenant for life in possession a power to sell would have more substance had there over been an outcry for the land on his behalf, but to this extent only are they trustees the repeal of the evidence clauso (section 20) of the Act of 1885. with a power of sale. We submit, then, that forms 15 and 17 The operation of the Act has, indeed, not been allowed to go should be made to apply to trustees with a power of sale, without question. Sir HERBERT STEPHEN has said that twelve which would include trustees for the purposes of the Act during years' observation of its working has convinced him that an & minority.
innocent person is not less but more likely to be convicted if he We may, perhaps, without disrespect, be permitted to con
can be heard as a witness for himself than if he cannot, and he gratulate the very able committee on the success which, on has put this opinion in concrete form by alleging that further perusal of the rules, we conceive it will be generally upon the Northern Circuit three or four innocent persons are admitted they have attained. The attention to detail, which is one of the most favourable features of the rules, must, however, evidence, when they would have been acquitted if they had been
on an average convicted overy year because they have given of necessity give rise to many mistakes.
incompetent as witnesses. The Attorney-General replies that the Home Office knows nothing of any such cases; and he asserted in the debate that, if they had existed, they would
certainly have been brought to the notice of the department by THE CRIMINAL EVIDENCE BILL.
the prisoner or his friends, an assertion which drew from Mr. The Criminal Evidence Bill has been read a second time in the HEALY the fair retort that prisoners who had been convicted House of Commons by a majority of 229 to 80. Ordinarily this on their own evidence were not likely to make this circumstance would be a sufficient indication that the weight of opinion is the ground of an application to the Home Office. But the disoverwhelmingly in favour of the proposed change, but it is to cussion is profitless. The significant fact is that the system be noticed that a year ago the numbers were 210 to 41, and introduced by the Criminal Law Amendment Act has been for a that the present debate produced a series of strongly adverse considerable time in operation and has produced no general speeches. It was wound up by an appeal from Mr. MORLEY protest on the part of the judges who have to administer it. The that the Bill, if read a second time, should be referred to a select Attorney-General referred with some effect to the similar procommittee, and it may be taken for granted that if the request cedure under the Explosives Act, 1883, and to a case under it were acceded to there would be an end of the measure for this within his own experience where one of several prisoners was year.
able to show by giving evidence himself that he was the dupe But though there is on the present occasion a greater show of of the other prisoners, with the result that he obtained an opposition to the admission of the competency of prisoners as acquittal. The above and other similar enactments it would be witnesses than formerly, the actual arguments advanced against very difficult to repeal, and yet, while they remain unrepealed. the Bill have not increased in cogency.
The circumstance of it is still more difficult to continue the exclusion of the evidence most importance-to judge from the frequent references to it- of prisoners in cases outside them. is that Mr. Justice Hawkins is alleged to have changed his The strength of the case for the opposition to the Bill lies in view in the course of the past year, and, according to Mr. the fear that the giving of evidence will expose innocent ATHERLEY-Jones, he has come to a positive conclusion that prisoners who are uneducated mon or who have a bad record to
would be detrimental to the interests of positive disadvantage. But the mode in which the objection is justice. And Mr. LYTTELTON quoted from a written stated does no great credit to the present practices of courts of opinion of Lord Justice COLLINS, in which that learned judge justice. The House, said Mr. LYTTELTON, was legislating " for stated as his chief objection to the proposed change that he the poor, the miserable, the ignorant, the confused, almost the felt certain it would greatly alter the present relations between dumb, who were driven into a criminal court, and, who, prothe judge and the prisoner. “It seems to me," he wrote, bably for the first time in their lives, endeavoured to string "inevitable that, it it should become the practice for the together a few sentences against more or less skilled oppoprisoner to give evidence in every case, the judge will in most nents." With this must be taken the assertion of another cases have to put questions in the nature of cross-examination opponent of the Bill that prosecuting counsel of the present day himself. He has to do so now very frequently in cases under have forgotten their true function, and instead of conducting the Criminal Law Amendment Act. Counsel who conduct the prosecution in a semi-judicial capacity, bend their energies ordinary prosecutions are frequently inexperienced, and a to obtaining a verdict. But if these remarks represent truly the crucial question often has to be put by the judge. If this atmosphere of a court of justice the character for impartiality becomes the ordinary practice, as I think it must if the proposed and fair play which the opponents of the Bill are so anxious to change is made, it must sap the prisoner's confidence in the maintain has already ceased exist. We greatly absolute impartiality of the judge, which is so valuable a feature doubt, however, whether the conflict between prosecuting in our present system. It cannot but tend to alter the attitude counsel and prisoner, when the prisoner goes into the of the judge himself actually and apparently; and I should witness-box, will have the disastrous result that has been regard this as a great public mischief and deprecate any change predicted. An accused person may tell lies and may thus which might make it possible unless I feel sure that the certain shake his own credit and secure his conviction. But this will benefits would more than compensate." Opinions such as these be because he has some ulterior end in view, and no: because are, of course, entitled to every respect, and it may be that he is unable to tell his story. He may, if very ignorant or experts in the administration of the criminal law are not so nervous, have difficulty in telling a connected story, but English unanimous on the subject as has sometimes been represented. \judges would not deserve the credit for patience, fairness, and
common sense universally accorded to them if they could not secure that the prisoner shall convey to the jury the facts as he intends
CORRESPONDENCE. them to be presented. The prisoner knows the facts, and, if he MR. WARR'S BILL FOR EXEMPTING GRADUATES FROM is innocent, his desire is to tell the facts truthfully. With the
THE FINAL EXAMINATION. assistance of the judge there is no reason why even the most uneducated prisoner should not be able to do so. To represent
[To the Editor of the Solicitors' Journal.] that the judge will allow him to be driven by the prosecuting ranks of our profession, and so raise its tone, I venture to suggest
Sir,-If the object of this Bill is to attract university men to the counsel into untruths is to depreciate the influence of the judge what I think would be a far more effective method of attaining the and to exaggerate the importance of cross-examination. The latter object-namely, to procure legislation to put a check on the weapon of cross-examination, as Sir ROBERT REID well said, admission of the “ ten years' man," or, in other words, to compel falls flat and useless against a truthful witness. Honesty him to pass his preliminary before allowing him to be articled. It entirely blunts the edge of it.
is the presence in our midst of the man who is unable to get through There is, indeed, no reason to suppose that the admission of an examination which no educated gentleman would at any time of the testimony of prisoners will so far alter the atmosphere of an and in large provincial towns I fancy he is not so much noticed, but
his life have difficulty in passing, that tells against us. In London English court of justice as to make an ignorant prisoner an in the average-sized country towns he is very much in evidence, and easy prey for the prosecuting counsel or to turn the judge into however efficient his work, however accurate his technical knowan adversary. And if judge and counsel so far forgot their ledge, his social position is not what that of a member of our taken of the jury, who would resent any attempt to convert the My view of Mr. Warr's Bill, based on my personal experience, is, examination of the prisoner into an engine of oppression. A that it will work more harm than good. I worked hard for my more serious question arises upon the extent to which the cross- university degree, and when I passed my examination I felt I had examination of the prisoner is to be admitted. Is it to be learnt something of the theory of many branches of law; but I should confined to the charge made against the prisoner, or is he to be Solicitors' Final, assisted and exemplified as it was by the practical
be extremely sorry to have missed the compulsory reading for the subject to the ordinary rule governing the cross-examination of work seen in the office and the courts; and I feel to this day that it a witness as to credit and to be liable to have his past life with was time well spent. any previous convictions on similar charges brought up against I thoroughly agree with the correspondent whose letter you quote, him ? Sir HERBERT STEPHEN, in his "Prisoners on Oath," that the law examinations at the universities cannot be conducted on has given good reason, if the evidence of prisoners is to be other than theoretical lines, and ought not to be, either. LL,B. permitted, for restricting the power of cross-examination to the
April 27. circumstances of the charge on which the prisoner is being tried. When the prisoner is in the witness-box the two princi
RE BROOKE AND TREMLIN'S CONTRACT, ples that, as prisoner, he is entitled to have all extraneous matter excluded, and that, as witness, he is liable to be ques
[To the Editor of the Solicitors' Journal.] tioned as to his antecedents are necessarily at variance ; and the in the Brooke ană Tremlin's Contract, contained in your issue of the
Sir,--Referring to your remarks on the judgment of Kekewich, J., more important principle to maintain is the former. By the 9th of April, as to a married woman being able to convey a mortfact of his being under arrest the credit of the prisoner is gaged freehold property of which she is seised by reason of the already to some extent discounted; he is—to use Mr. Carson's mortgage money advanced by her having formed part of her separate phrase—a tarnished witness; and the jury can estimate his estate, the crucial point which has to be dealt with in the majority evidence at his proper value without having the whole story of of cases in which the point is raised in actual practice seems to be his past misdeeds before them. On the other hand, it is essential left untouched. To enable a married woman to convey such mortthat they should decide the immediate charge on the relevant gaged property, it appears to me that the first essential is that the evidence, and should not be influenced by considerations of pro- moneys advanced by her on the mortgage were in fact her separate bability drawn from previous convictions. This accordingly is property, and not the moneys of her husband ; and in most of the what the Bill proposes. The prisoner cannot be cross-examined
cases which have come before my personal notice the proof of this
has been wanting. with a view to showing that he has been previously convicted or is of bad character, unless the previous conviction would be the husband being joined in the mortgage deed for the purpose of his
It is a common practice for such mortgages to be prepared without admissible evidence of the offence for which he is being tried, acknowledging that the mortgage money does not belong to him, but or he has himself given evidence of good character, or he has is the separate estate of his wife. Now take the instance of a mort, given evidence against any other person charged with the same gage to a married woman, who advances the mortgage money out of offence. In this last case he is, as against such other person, moneys belonging to her husband, either with or without his merely a witness, and is under an ordinary witness's liability. knowledge, and the husband does not join in the deed for this the Attorney-General in his speech, that, according to the had, in fact, no money of her own. Her husband had left her, and The Bill carries out as closely as possible the principle stated by purpose, what is the result then?. This was the actual state of things law of England, the offence for which a man is tried is the she had possessed herself of his money, a part of which she had offence with which he is being charged, and not any other advanced on the mortgage. There was a statement in the mortgage offence.
deed that the money advanced was the separate property of the wife, Doubtless among the profession the proposed change is but this statement did not make it so. It was well known that the viewed with a certain measure of distrust. This found
contrary was the fact. Is it contended, then, that the Married sion during the debate in the speeches of Mr. PICKERSGILL, Mr.
Women's Property Act would vest the mortgaged property in her in
such a case, so as to enable her to deal with it, as a feme sole ? LYTTELTON, Mr. ATHERLEY-JONES, Mr. CARSON, and others. The gist of the objections, as we have already stated, is that title clear in the hands of a purchaser from her, appears to me to be
The only advisable way out of the difficulty, so as to make the uneducated prisoners will make bad witnesses, and that judges that the husband should be joined in the mortgage deed, or in the and prosecuting counsel will assume a hostile attitude, with the deed of reconveyance or the conveyance of the mortgaged property result that the character of courts of justice will be lowered to a purchaser, in order to give the acknowledgment above menThese fears are repudiated by Sir RICHARD WEBSTER, Sir tioned. ROBERT REID, Sir EDWARD CLARKE, and Mr. BUCKNILL, with
West Hartlepool, April 22. whom the advocacy of the Bill rested, and we apprehend that they are without foundation. A criminal trial is not in all respects analogous to a civil trial, but in each it is the object of the court to get at the truth. It is only recently that in civil not a place when it happens to be a betting-ring, has, says the St. James's
Lord Esher, endeavouring apparently to satisfy himself that a place is trials the parties have been held competent to give evidence, Gazette, had varied experiences. Not long ago the crowd at Sandown and so far from the interests of justice being thereby prejudiced received him with cheers ; last week an obscure member of it picked höf the contrary has happened. To exclude the parties would now pocket at the Old Berkeley Hunt Steeplechases. His lordship does not be treated as a manifest absurdity. It may be anticipated that promptitude shown in similar circumstances by Lord Russell at Epsomma the impending change in the conduct of criminal trials will be few years before he became Lord Chief Justice. Consequently, hē seems followed by a corresponding change of feeling.
to have lost his watch for ever,
High Court-Chancery Division.
Re HOCKLEY HALL AND WHATELEY COLLIERIES AND BRICKCourt of Appeal.
WORKS (LIM.). Byrne, J. 22nd April. LONDON AND NORTH-WESTERN RAILWAY CO. DONNELLAN.
TRUSTEE--CORPORATE TRUSTEE-CORPORATION DISSOLVED-New TRUSTEE No. 1, 25th April.
APPOINTED_TrusT FOR DEBENTURE-HOLDERS—TRUSTEE Act, 1893, ss.
26, 26. RAILWAY-RATES AND CHARGES-SIDING RENT_"DIFFERENCE”
In 1892 the above-named collieries issued first mortgage debentures DETERMINED BY AN ARBITRATOR JURISDICTION OF Court-LONDON and executed a trust deed, by which certain freehold property was conAND NORTH-WESTERN RAILWAY Co. (RATES AND CHARGES) ORDER veyed to one James Balfour, as trustee for the debenture-holders. In CONFIRMATION Act, 1891 (54 & 55 Vict. C. ccxxi.), SCHEDULE TO Order, 1893 Balfour retired from the trusteeship, and under a power in the trust s. 5 (iv.).
deed the debenture-holders appointed the General Securities Trust and Appeal from the judgment of a Divisional Court (Wright and Darling, | Agency (Limited) to be a new trustee under the trust deed in the place of the JJ.), reversing a decision of the deputy county court judge at Crewe retiring trustee. In 1896 the General Securities Trust and Agency (Limited) The action was brought to recover siding rent. In January, 1895, the
went into voluntary liquidation, the final meeting of shareholders was held
on the 15th of June, 1897, and a return being made to the registrar of plaintiffs issued a notice to all their customers, including the defendant, stating that a charge would be made for the accommodation of trucks, joint-stock companies on the 18th of June, 1897, the company war, under when standing on the company's sidings for more than four days, and
ection 143 of the Companies Act, 1862, deemed to be dissolved on the days was made all over the company's system. The defendant had always and to have the freehold land vested in the new trustee by the court. evidence was given that a charge of 6d. a truck per day beyond the four expiration of three months from the latter date. The debenture-holders
now applied by summons to have a new trustee of the trust deed appointed refused in toto to pay the charge, telling the company's servants that it was exorbitant and unjust, four days being too few for unloading. In
BYRNE, J., made an order under £ections 25 and 26 (1) of the Trustee an action to recover this charge for trucks belonging to the defendant Act, 1893, appointing a single new trustee of the trust deed, and vesting which remained on the company's sidings for more than four days, the the land in him for the estate thereon which was vested in the General defendant set up as a defence that the county court judge had no juris. And the new trustee was authorized to pay the costs of the applicants out
Securities Trust and Agency (Limited) immediately before its dissolution. diction to entertain the action because there was a difference”, arising of any moneys coming to his hands under the trusts of the deed. under section 5 of the schedule to the provisional order scheduled to the London and North-Western Railway Co. (Rates and Charges) Order Con-Counsel, T. R. Hughes, Theobald. SOLICITORS, Oliver Jones, Billson, f. Co., firmation Act, 1891, which must be referred to an arbitrator appointed by the Liverpool; Thorne & Welsford. Board of Trade. That section provides that "the company may charge
[Reported by N. TEBBUTT, Barrister-at-Law.] for the services hereunder mentioned, or any of them, when rendered to a trader at his request or for his convenience, a reasonable sum by way of WEEKES v. THE KENT, SUSSEX, AND GENERAL LAND SOCIETY addition to the tonnage rate. Any difference arising under this section
(LIM.). Kekewich, J. 23rd April. shall be determined by an arbitrator to be appointed by the Board of COMPANY --INLAND REVENUE-INCOME TAX-PREFERENTIAL PAYMENTS – Trade at the instance of either party. Provided that where, before avy DEBENTURE-HOLDERS-COMMENCEMENT OF WINDING UP-PREFERENTIAL service is rendered to a trader, he has given notice in writing to the PAYMENTS IN BANKRUPTCY ACT, 1888 (51 & 52 Vict. c. 62), s. 1 (1) (A!— company that he does not require it, the service shall not be deemed to PREFERENTIAL PAYMENTS IN BANKRUPTCY AMENDMENT Act, 1897 (60 & have been rendered at the trader's request or for his convenience.
61 VICT. C. 19), s. 2. (iv.) The detention of trucks, or the use or occupation of any accommodation before or after conveyance beyond such period as shall be
Summons. This was an application on the part of the Commissioners reasonably necessary for enabling the company to deal with the of. Inland. Revenue that the fclaim of the Crown, amounting to merchandise as carriers thereof, or the consignor or consignee to give or
£89 3s. 6d. in respect of income tax charged on the defendant company take delivery thereof." The county court judge held that he had no
for the year 1893 ending on the 5th of April, 1894, be allowed as a jurisdiction and gave judgment for the defendant. The Divisional Court preferential claim and paid in full by the official liquidator and receiver held that the words of section 5, “any difference arising under this Act,'
on behalf of the debenture-holders. By the Preferential Payments in referred to a difference as to the reasonableness of the amount of the Bankruptcy Act, 1888, s. 1, sub-section i (a), priority in payment to all charge only, and that, as in this case the defendant disputed the charge being wound up under the Companies Act, 1862) up to the 5th of April
other debts was given (inter alia) to income tax assessed (on any company in toto, this was not a that therefore the county court judge had jurisdiction. They accordingly next before the commencement of the winding up, and not exceeding in gave judgment for the plaintiff for the amount claimed. The defendant the whole one year's assessment. Section 2 of the Preferential Payments appealed and contended that any difference which arose as to this charge of any company under the Companies Act, 1862, and the Acts amending
in Bankruptcy Amendment Act, 1897, enacts that: “In the winding up was a “difference " within section 5, and must be referred to arbitration. Midland Railway Co. v. Haigh (13 Times L. R. 135), and some unreported in Bankruptcy Act, 1888, shall, so far as the assets of the company
the same, the debts mentioned in section 1 of the Preferential Payments decisions of the Divisional Court were referred to.
available for payment of general creditors may be insufficient to meet THE COURT (A. L. SMITH and CHITTY, L.JJ.) allowed the appeal.
them, have priority over the claims of holders of debentures or debenture
stock under any floating charge created by such company, and shall be A. L. SMITH, L.J., said that in his opinion the Legislature had enacted paid accordingly out of any property comprised in or subject to such that as regards matters within sections 5, 6, 7, and 8 of the Provisional charge." The later Act received the Royal Assent on the 15th of July, Order disputes should be settled by an arbitrator appointed by the Board 1897, but there is no time specified in the Act for its commencement. In of Trade and not be taken into court. In several cases which had been the present case the winding up commenced, and this debenture-holders' referred to Wright J. seemed to think-and Mathew and Wills, JJ., took action was brought before the 15th of July, 1897, and the question which the same view-that the reasonableness of the amount of the charge was the court was asked to decide was whether or not the Act was retrothe only matter for arbitration under section 5. He was unable to agree pective. Counsel for the company referred to the judgment of Wright, J., with that view. Any difference arising under this section" was not given two days previously in the case of Re Waverley Typewriter, when a limited to the reasonableness of the amount of the charge. The words precisely similar question was determined in favour of the company. The included any difference arising under any of the sub-sections of section case of Anglo- French Co-operative Society (32 W. R. 748) was also referred 5. Under sub-section (i.) the arbitrator "might have to determine, if it to. was in dispute, whether the sidings belonged to the company or not; so KEKEWICH, J.-I shall not express any opinion, but simply follow under sub-section (i.) the arbitrator might have to determine whether the Wright, J.'s, decision and hold that the Act is not retrospective, and services were rendered outside the terminal station ; and in sub-section therefore does not apply to the present case. I do not see why I should (iv.) in finding out what was a reasonable charge the arbitrator might have not make the Commissioners of Inland Revenue pay the costs which they to determine what was the period reasonably necessary to take delivery. have caused the other side to incur.–Counsel, Vaughan Hawkins ; Kerly. The arbitrator must settle the whole dispute, and not merely fix the SOLICITORS, Solicitors of Inlind Revenue ; Kerly, Son, f. Verden. amount, leaving the rest to the court. In the present case there was a
[Reported by R. J. A. MORRISON, Barrister-at-Law.! "difference arising under" section 5, and the county court judge was right.
EHRMANN 1, BARTHOLOMEW. Romer, J. 1st and 26th April. CHITTY, L.J., concurred. There were no words in section 5 limiting the CONTRACT OF SERVICE_WINE MERCHANT'S TRAVELLER--NEGATIVE STIPULA "difference" to the reasonableness of the amount of the charge. It
TION AGAINST Doing OTHER BUSINESS-INJUNCTION. included all that was material with reference to the various sub-sectionsthat is to say, all matters which were material to the decision of the defendant had been a traveller in their employment engaged to act as
Motion. The plaintiffs were a firm of London wine merchante. The difference, whatever that difference might be, arising under the section, such for ten years by articles of agreement dated the 24th of August, The Legislature had thought that this was a class of dispute that had 1897. The present motion was brought by plaintiffs to restrain the better be determined by a skilled arbitrator than by the courts, and never intended that the difference should be split up, part to go before one
defendant from engaging or employing himself in any other business tribunal and part before another.-COUNSEL, T. W. Chitty and Gilchrist for Messrs. Marzell & Co., another firm of London wine merchants, and
than that of plaintiffs' firm, and in particular from acting as traveller Alexander ; O. A. Russell, Q.C., and w. 5. Noble. SOLICITORS, George from soliciting orders for them during the term of the said agreement. Turnbull, Bradford; C. H. Mason.
Clause 3 in said agreement was as follows: "The traveller shall dili. [Reported by W. F, BARRY, Barrister-at-Law.]
gently and continuously employ himself as traveller of the firm for the