516

CASES REPORTED IN THE WEEKLY REPORTER.
"Ampthill," The (Adm.Div.)
Clarke v. Bradlaugh (App.)...
Dawkins v. Antrobus (App)
Furber, Ex parte, In re King (Bkcy.). ........................ 524
Hall, In re, Ex parte Castledine (Ch.Div. Fry, J.)

Madras Irrigation and Canal Company, In re (Ch.Div. M.R.).
Mosse v. Killick (C.P.Div.)'

Plating Company, The, v. Farquharson (App.)
Sheffield v. Sheffield and Paice (Div.Div.)
Thompson v. Ringer (Ch.Div. V.C.B.)

CURRENT. TOPICS.

520 522 510 523

520

THE REPORT of the Procedure Committee will be laid on the table of the House of Commons on Monday next.

WE ARE ENABLED to publish the Chancery Sittings Paper for the ensuing sittings. It will be observed that Mr. Justice KAY will not sit after May 2, and that no date is fixed for his return from circuit, but due notice of such return will be given in the daily court papers.

THE FOLLOWING is a list of the new Queen's Counsel, with their respective years of call to the bar :-One member of the North-Eastern Circuit, Mr. HuGH SHIELD, M.P., 1860; three members of the Equity Bar-Mr. JAMES C. WHITEHORNE, 1853; Mr. W. W. KARSLAKE, 1857; Mr. JOHN RIGBY, 1860; and Mr. ROBERT ROMER, 1867.

lordship has not yet announced his intention of complying with the request. It is stated that Mr. Justice FRY has intimated that he will follow the practice of Vice-Chancellor MALINS in this respect, and will adopt the hour of 10.30.

THE CHANCERY CAUSE LIST, which will be published in a day or two, will contain 156 appeals, of which 58 belong to the Westminster Division. There were, at this time last year, 236 appeals waiting for hearing, of which 101 were set down for the Westminster Division. It will, therefore, be seen that there has been a large diminution in the number of appeals. In the number of cases for hearing before the judges of first instance in the Chancery Division there is also some diminution. Last year there were in all 494 causes for hearing at the commencement of the Easter Sittings; this year there are only 428. For the ensuing sittings the Master of the Rolls has 80 witness causes, and 58 non-witness causes; Vice-Chancellor BACON has a total of 60 causes; Vice-Chancellor HALL a total of 76 causes; Mr. Justice FRY (in succession to Vice-Chancellor. MALINS) has 121 causes; and Mr. Justice KAY has 33 causes.

THE FACTS relating to Lord BEACONSFIELD'S connection with the law in early life are these:-He was articled to Mr. WILLIAM STEVENS, solicitor, of the firm of SWAIN, STEVENS, MAPLES, PEARSE, & HUNT, of No. 6, Frederick'splace, Old Jewry. The articles of clerkship, which are still preserved by Messrs. MAPLES, TEESDALE, & Co., the successors to the business of the above-mentioned firm, are dated the 10th of November, 1821. Mr. DISRAELI, though articled to Mr. STEVENS, was exclusively employed in the department of the late Mr. Maples, one of the other partners in the firm, who was an old friend of Mr. DISRAELI's father and mother. It was, indeed, through this friendship that Mr. DISRAELI came into the office. Mr. MAPLES always described Mr. DISRAELI as being most assiduous in his attention to business, and as showing great ability in its transaction. So marked, indeed, was his talent, that Mr. MAPLES advised Mr. ISAAC DISRAELI that his son ought to be allowed to go to the bar. This advice was not followed, and Mr. DISRAELI remained between three and four years in Messrs. SWAIN & Co.'s office, but left, we believe, about the beginning of the year 1825.

ONE OF THE PROVISIONS of the new Bankruptcy Bill, which has hitherto escaped attention, proposes to effect a great inroad on the rights of landlords. At present, as is well known, the landlord is able at any time, either before or after the commencement of the bankruptcy, to distrain upon the goods of his bankrupt tenant for the rent due from such tenant; with this limitation, that if the distress be levied after the commencement of the bankruptcy it will be available only for one year's rent accrued due prior to the date of the order for adjudication. Clause 63 of Mr. CHAMBERLAIN'S Bill provides that "a landlord shall not, after a person has been adjudicated bankrupt, distrain, or proceed with a distress, for rent due from him before the adjudication." Moreover, the clause also proposes to restrict the right of the landlord to distrain for rent which has accrued due since the adjudication, by requiring the leave of the court to be obtained, "on proof that the tenancy has been continued for the benefit of the bankrupt's estate." It may

be doubted whether a provision which will compel a landlord to distrain for rent as soon as he knows that his tenant's affairs are embarrassed, for fear lest he should be deprived of his rights by the bankruptcy of the tenant, will be to the interest of creditors.

WE PRINT elsewhere a report of a county court case of Pattimore v. Parker, relating to a point under the Agricultural Holdings Act upon which, but for the hesitation expressed by the judge, for whose opinion everyone must entertain sincere respect, we should have thought that little doubt could exist. The plaintiff held land from the defendants as tenant from year to year, and he also held, as tenant from year to year, other land, less than two acres in extent from the same defendants, but (as the judge found) under a separate and independent contract of tenancy. As regards the first-mentioned land the Agricultural Holdings Act was applicable, but, of course, under section 58, the Act would not apply to the tenancy of the land of less than two acres, unless, as being held by the same tenant of the same landlord, it could be considered as constituting ore “holding” with the other land. It was contended that this construction must be adopted, and therefore that, under section 51, a year's notice to quit the land of less than two acres was necessary. But this construction altogether loses sight of the provision of section 58, that "nothing in this Act shall apply to a holding that is of less extent than two acres;" "holding" being defined in section 4, as including only land held "under the same contract of tenancy." The decision that the Act was not applicable we should have thought obviously right, but as possibly other persons may share in the doubt expressed by the judge, it may be well to call attention to the matter.

THE CASE of Sotheron v. Scott (Weekly Notes, March 12) is not likely to attract the attention it deserves. It is a decision of some interest and importance upon a much-disputed question under the Bastardy Acts. The respondent, a married woman, had obtained when single a maintenance order against the appellant for a bastard child, and the appellant had made several payments under the order up to the time when the respondent married. The appellant then ceased to pay, and the respondent made an application to the magistrates to enforce the order against him. The appellant resisted the application, on the ground that his liability as a putative father ceased as soon as the mother of the bastard married. The magistrates decided against him, and be appealed to the superior court, but the court, consisting of MANISTY and FIELD, JJ., dismissed the appeal, and affirmed the decision of the magistrates, on the ground that since the Act of 35 & 36 Vict. c. 65, it could not be contended that the mother's marriage invalidated an order previously obtained against the putative father.

Since the above-mentioned Act was passed no case has arisen which can be treated as a distinct authority upon the point, but the same question was incidentally raised in the case of Stacey v. Lintell (L. R. 4 Q. B. D. 291). The actual decision there was that no woman could apply for a maintenance order under 35 & 36 Vict. c. 65, s. 3, as a single woman, after her marriage, if she was, at the time of the application, living with her husband. But MELLOR, J., says in his judgment, "The reasoning followed by the court in Lang v. Spicer appears to me to be applicable to this case-that a woman who marries after the birth of her child ought not to be allowed to proceed against the putative father, inasmuch as her husband has become liable to support the child, and it could not have been the intention of the Legislature to establish a double liability for its maintenance." But LUSH, J., said, "The Iroviso to 7 & 8 Vict. c. 101, s. 5, by which an order

for the maintenance of a bastard child is to cease after the marriage of the mother, has been purposely omitted from 35 & 36 Vict. c. 65. I think the only effect of that omission is to prevent an order duly made from becoming wholly void on the marriage of the mother, and to leave it in the discretion of the justices to allow the order to continue until the child has reached the pre scribed age." It will be seen that these two judgments differ, and that the court in the recent case has followed the decision of LUSH, J., and practically overruled that of MELLOR, J.

The first statute bearing upon this subject, 4 & 5 Will. 4, c. 76, is still in force, and the 57th section of that Act provides that every man marrying a woman having a child or children, whether legitimate or illegitimate, shall be liable to maintain such child or children as a part of his family until the child or children attain the age of sixteen or until the death of the mother of such child or children. This Act is distinct from the Bastardy Acts, and does not deal with the possibility of a maintenance order existing at the same time as the liability which it created by the above-mentioned provision. But the question of these two liabilities was raised in the case of Lang v. Spicer (1 M. & W. 129), where it was held that the distinct provision made by the Act of Will. 4 to ease the parish burdens rendered it impossible to have an order enforced upon a putative father after the mother's marriage to a person able to support the child, because the child then ceased to be chargeable on the parish, and no order could be made against him except as to a child so chargeable. Baron PARKE distinctly says, “The putative father can never be called upon after the marriage." This decision is not shaken in the subsequent case of Reg. v. Pilkington (2 E. & B. 546). The real point there decided was that a married woman who had given birth to a bastard child in the absence of her husband, as a convict in Van Dieman's Land, could sue as a single woman, and that the order against the putative father did not cease upon her resuming cohabitation with her husband upon his return. But ERLE,, J. gives it as his reason for so deciding that "it cannot be said that the woman has married again." It was prior to this decision, but subsequently to that of Lang v. Spicer, that the Act of 7 & 8 Vict. c. 101 was passed, in which it was distinctly provided, in section 5, that no maintenance order should have any force or validity after the marriage of the mother, and this provision has been specifically repealed by 35 & 36 Vict. c. 65, schedule 1, and in the clause dealing with the cessation of such order the provision as the mother's marriage is omitted. The effect of this repeal

would seem to be to leave the law in the same state as before the Act of 7 & 8 Vict. It may be that the decision of LUSH, J., in Stacey v. Lintell is the best way of getting over a serious difficulty, and that for that reason it has been adopted in the case before us. But (assuming that in the recent case the husband was able to support the bastard) the conclusion is inconsistent with the reasoning in Lang v. Spicer.

Stephen Prosser Brett, formerly clerk to Messrs. Paul & Fearon, solicitors, New-inn, Strand, was charged at Bowstreet Police Court on Thursday with stealing £18, the property of his employers. It was stated for the prosecution that the prisoner had obtained fraudulently large sums of money belonging to his employers. In the present case a cheque for £18 10s. had been intrusted to him to get cashed, and with the money he should have paid certain Inland Revenue fees. Only ten shillings had been thus expended. stealing a blank cheque, which he filled up for the amount of A second charge would be made against the prisoner for £250 and got cashed. Detective-Serjeant Partridge said he arrested the prisoner last night at Bexley Heath, when he found in an Australian belt he wore round his waist the sum of £130 in gold. Mr. Flowers remanded the prisoner for a week.

LIABILITY INTER SE OF OCCUPIERS OF DIFFERENT PARTS OF THE SAME HOUSE.

THE case of Stevens v. Woodward (29 W. R. 506, L. R. 6 Q. B. D. 318) is a case of some interest, as illustrating the nicety of the distinctions upon which the existence or absence of legal liability sometimes turns.

The facts of the case were simple. The plaintiffs occupied premises beneath the offices of the defendants, who were solicitors. One of the defendants had a room in the offices, and in it was a lavatory for his own use, his orders to his clerks being that none of them should come into his room after he had left. A clerk went into the room to wash his hands at the lavatory after his employer had left, turned the water tap and negligently left it turned, so that the water overflowed and flowed into the plaintiffs' premises and damaged them. It was held that the act of the clerk was not within the scope of his authority or incident to the ordinary duties of his employment, and that there was no evidence of negligence for which the defendants were liable.

We do not see how the decision could have been otherwise. The case was put as one of liability of a master for the act of his servant, and the usual discussion took place with regard to the scope of the employment and so forth. The court decided, and we cannot help thinking rightly decided, that it was not within the scope of a clerk's employment to go into a room from entering which he was forbidden, and to use a lavatory not intended for his use. You might just as well say, that if a solicitor, having returned from an autumn trip to the moors, should happen to leave a gun in his chambers with cartridges, and a meddlesome clerk should get playing with it and trying how it was loaded, the solicitor would be liable if the gun went off and shot somebody on the floor below. It does not seem to us that the case can be determined on different considerations than would arise if some mischievous errand boy not in the defendant's employ, but having been sent to the premises on an errand, had turned on the tap of the lavatory while the clerk's back was turned, and so the mischief had been occasioned. As was pointed out by the court, the cases about scope of employment run extremely fine. To our thinking, in some cases, the scope of the employment has been carried very far as against the master. But whatever the true definition of the scope of the employment may be for the purpose of determining the liability of the master, the act of the clerk in this case was clearly on the other side of the line, and was not an act done in the scope of the employment.

The case was put in argument entirely on the question of negligence, and the liability of the master for the acts of the servant, but it is obvious that cases of this sort involve other considerations. These considerations, however, have been discussed in two previous cases, though we confess the law as between occupiers of different parts of the same house seems to us, notwithstanding these cases, to require further elucidation. In the case of Carstairs v. Fedden (L. R. 6 Ex. 217), the plaintiffs hired of the defendant the ground-floor of a warehouse, the upper part of which was occupied by the defendant himself. The water from the roof was collected by gutters into a box, from which it was discharged by a pipe into the drains. A hole was made in the box by a rat, through which the water entered the warehouse and wetted the plaintiff's goods. The defendant had used reasonable care in examining and seeing to the security of the gutters and the box. It was held that the defendant was not liable, either on the ground of an implied contract, or on the ground that he had brought the water to the place from which it entered the warehouse. An attempt was made to apply the well-known doctrine of

Fletcher v. Rylands (L. R. 3 H. L. 340) to this case. That doctrine is that, when one landowner alters the natural state of things by collecting on his land some agent, such as water, which, if it escapes, must trespass on and damage the land of another, he is bound, at his peril, to keep it in, uniess prevented by the act of God or vis major: it is not a question of negligence or no negligence. But Kelly, C.B., held that the accident occasioned by the rat was analogous to vis major or the act of God, and Bramwell, B., thought that the case differed from Fletcher v. Rylands, because in that case the defendant collected the water solely for his own benefit; but, in the case before him, the collecting of the water was as much for the benefit of the occupier of one part of the house as for the occupier of another. It seems pretty clear that this was a substantial distinction, and so the decision left untouched the question how far the doctrine of Fletcher v. Rylands might be applicable between the occupiers of different parts of the same house. The case of Ross v. Fedden (L. R. 7 Q. B. 661) raised points of a somewhat similar description. The plaintiff there occupied for business purposes the ground-floor, and the defendants the second-floor, of the same house, respectively, as tenants from year to year. There was & water-closet on the defendants' premises, to which they alone had access, and of which they alone had the use. After their respective premises had been closed on a Saturday evening, water percolated from the water-closet through the first-floor to the plaintiff's premises, and caused damage to his stock-in-trade. The overflow of the water was owing to the valve of the supply-pipe to the pan of the water-closet having got out of order, and failed to close, and the waste-pipe being choked with paper. These defects could not be detected without examination, and the defendants did not know of them, and were guilty of no negligence. It was held that the doctrine of Fletcher v. Rylands did not apply, and that the defendants were not liable. The case was an appeal from the decision of a deputy county court judge. We believe the deputy county court judge was Mr. Wilson, the present Indian judge. He said, in giving judgment, "I think, however, that the judgment in Carstairs v. Taylor (L. R. 6 Ex. 217), leaves it very doubtful whether the rule of law laid down in Rylands v. Fletcher (L. R. 2 H. L. 330) applies to the case of two persons occupying two floors of the same house. But assuming the rule to apply, is the present case within it? As between the occupiers of parts of a house-a thing wholly artificial-it is rather a straining of language to speak of any one state of things as more natural than another. But I think that, in the words of Martin, B., in the case already referred to, 'one who takes a floor of a house must be held to take the premises as they are.' As far as he is concerned I think the state of things then existing may be treated as the natural state of things, and the flow of water through cisterns and pipes then in operation as equivalent to the natural flow of water. I think he takes subject to the ordinary risks arising from the use of the house as it stands; and that one who merely continues to use the rest of the house as it stands and in the ordinary manner does not fall within the rule in Rylands v. Fletcher, and in the absence of negligence is not liable to the consequences, and in the present case there is nothing to show, nor has it been suggested, that the water-closet or anything connected with it has been in any way altered by the defendants since they came into occupation. There is nothing to show, nor has it been suggested, that it has been in any way altered since the plaintiff became tenant of the ground-floor, or that it has been used in any but the ordinary manner." The judgments of the judges affirming this decision were short, and do little more than express concurrence with the reasoning of the deputy county court judge. The terms of his judgment leave open various nice questions which might arise as to the liability of the occupier of one part of a house to the occupier of another part of the same house. He expressly guards himself

from expressing any opinion whether the doctrine of Fletcher v. Rylands would apply when the occupier of one part of the house has altered the state of things existing at the time when the occupier of the other part of the house became tenant by bringing a dangerous agent, such as a collection of water, upon the premises.

It seems to us that great difficulty may in future arise with regard to the determination of a question of that sort, but possibly it may turn out that no alteration of the existing state of things, which does not go beyond the ordinary and reasonable use of the kind of premises which may be in question, would cause the doctrine of Fletcher v. Rylands to apply.

THE OFFICIAL RECEIVER UNDER THE BANKRUPTCY BILL. BEFORE We go into the portions of the new Bankruptcy Bill which are familiar to our readers, as being more or less founded on the previous attempts at legislation, it may be well to consider the novel provisions which are intended to remedy the evils arising from the apathy or ignorance of creditors. Amongst the most important of them are the clauses relating to the official receiver. Under clause 45 there are to be attached to each court having jurisdiction in bankruptcy an official receiver, or official receivers, of bankrupts' estates, who are "to be appointed by, and to act under, the general authority and directions of the Board of Trade"; but are to be "officers of the courts to which they are respectively

attached."

The duties of these officials are defined by clause 46 as follows:-"The principal duty of the official receiver of a bankrupt's estate shall be to make a report to the court as to the conduct of the bankrupt, stating whether there is reason to believe that he has committed any act which constitutes a misdemeanor in case of bankruptcy, or which would justify the court in refusing, suspending, or qualifying an order for his discharge. It shall also be his duty-(a) pending the appointment of a trustee, to act as interim receiver and manager of the bankrupt's estate, where a special receiver and manager is not appointed; (b) pending the appointment of a trustee, to receive proofs of debts, and accept or reject them, subject to appeal to the court; (c) to summon and preside at the first meeting of creditors; (d) to issue forms of proxy for use at the first meeting of creditors; (e) to report to the creditors as to any proposal which the bankrupt may have made with respect to the mode of liquidating his affairs; (f) to advertise the order of adjudication, the bankrupt's examination, the date of the creditors' first meeting, and such other matters as it may be necessary to advertise for the purpose of the bankruptcy before the appointment of a trustee; (g) to take such part as may be directed by the Board of Trade in the public examination of the bankrupt." And, in addition to this, under clause 20 (sub-clause 10), if the creditors or the committee of inspection do not appoint a trustee within the prescribed time after the adjudication, "the official receiver for the time being shall become, and be deemed to be appointed by the Board of Trade, the trustee in the bankruptcy." And under clause 43, where it appears to the official receiver, from the bankrupt's statement of affairs or otherwise, that the bankrupt's estate is not likely to exceed £300, the official receiver is, as from the date of the first meeting, "to become, and be deemed to have been appointed by the Board of Trade, the trustee of the estate, unless the creditors at that or any subsequent meeting" resolve that some other person be appointed

trustee.

in refusing, suspending, or qualifying an order of discharge, he must be familiar with the law of bankruptcy, and accus. tomed to deal with evidence. His report is to be “taken into consideration" by the court on hearing an applica. tion for the discharge of the bankrupt (clause 35), but it appears that the court cannot act upon it so as to refuse, or suspend, or qualify, the order of discharge unless on proof of some of the facts mentioned in clause 35. On the other hand, the court is enabled to "order a prosecution on the report of the official receiver" (clause 41), and where there is, in the opinion of the court, ground to believe" that the bankrupt has been guilty of any offence which is by statute made a misdemeanor in cases of bankruptcy, the court may commit the bankrupt for trial (clause 42). It is obvious that, if these provisions are to be effective, the official receiver must be a person of legal training.

The

No hint, however, is given in the Bill of the qualifications of persons to be selected as official receivers, but Mr. Chamberlain stated in his speech, when introducing the Bill, that the registrars of county courts are to fulfil this function. No more fit persons could be selected if they can find time for the work. But it must be remembered that under the Bill (clause 33) every bankrupt must be publicly examined before the court. It is impossible to suppose that the judge can or will occupy his time in presiding at these examinations. duty will doubtless be delegated (clause 52) to the registrars. How they are to combine with this and their other important duties the multifarious functions of the official receiver is not explained, and perhaps has not been considered. It is, however, obviously contemplated that the registrar shall not be the only official receiver attached to the court, for clause 11 provides that "where more than one official receiver is attached to the court, such one of them as is for the time being appointed by the court for any particular estate shall be the official receiver for the purpose of that estate."

The success of these provisions depends on whether the right class of persons can be induced to accept the office of official receiver, and that mainly depends on the amount of remuneration which will be offered. It is provided by clause 20 (sub-clause 12) that if the official receiver is appointed trustee," he shall have remuneration as hereinafter mentioned." The only provision on this subject contained in the subsequent part of the Bill is clause 55, which provides (sub-clause 3) that "there shall be payable to persons appointed by the Board of Trade under this Act such remuneration, by way of salary, fees, commission, or otherwise, as the Board of Trade, with the concurrence of the Treasury, from time to time direct." So that the whole question of the remuneration of the official receiver is left to be settled by the Board of Trade and the Treasury. It may be safely affirmed that if the scale at all resembles that proposed for trustees in the schedule to the Act, it will be found impossible to obtain the services of persons qualified to perform the important duties proposed to be imposed on the official receiver.

66

46

It may, however, be questioned, after all, whether the elaborate provisions of the Bill relating to the official receiver will become practically operative. By clause 12 any creditor" may, upon adjudication or at any time thereafter, before the appointment of a trustee, apply to the court for the appointment of "a special receiver and manager," and the court may, if in the opinion of the court the interests of the creditors require it," appoint a special receiver and manager, and in this case (clause 46, subclause a.) the official receiver is not to act as interim receiver and manager of the bankrupt's estate; and "nothing in this Act shall authorize the official receiver to act in the administration of any property of which a special receiver and manager is appointed under this Act" (clause 46, sub-clause 3). It is easy to see that any creditor, acting in collusion with the bankrupt, may by means of these provisions obtain