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Swindley, Henry, Chester, Potato Dealer. June 20 at 11 at office of Brassey, Eastgate
row North, Chester

Tillbrook, John, Napier villas, Crouch End, Builder. June 26 at 3 at Cannon st Hotel,
Cannon st. Freeman and Bothamley, Queen st

Thomson, George, and John Mathews, Billiter sq, Merchants. July 4 at 2 at Guildhall
Coffee house, Gresham st. Greening, Fenchurch st

Taylor, Jeremiah, Plymouth, Master Mariner. June 26 at 3 at office of Stanbury, Prin-
cess sq, Plymouth
June 27 at 11 at offices of Ridg-
Vanstone, James, Northam, Devon, Coal Merchant. June 28 at 12 at offices of Hole and
Peard, Willett st, Bideford

Unsworth, John, Earlestown, Lancaster, Contractor.

way and Worsley, Cairo st, Warrington

Vaughan, George John, Mile End rd, Manager to a Licensed Victualler. June 23 at 12
at offices of Anning, Cheapside

Veal, Thomas John, Wardour st, Soho, Plate Chest Maker. June 26 at 2 at offices of
Fraser, Soho sq

Wade, Charles Gregory, Leadenhall st, Glass and China Merchant. June 28 at 11.30
at offices of Burne and Co, Lincoln's inn fields

Walton, James, Sheffield, Boot and Shoe Manufacturer. June 26 at 3 at offices of Clegg,
Victoria chmbrs, Figtree lane, Sheffield

Warren, George, Reading, Berks, Grocer. June 24 at 3 at offices of Newman, Friar st,
Reading

Whichello, Frank, Wallingford, Berks, General Shop Keeper. June 27 at 3 at offices of
Slade, St Martin's st, Wallingford

Wilson, David, and William Lambert, Kingston-upon-Hull, Merchants. July 1 at 11, at
Imperial Hotel. Holborn Viaduct. Firth, Hull

Woodbridge, William Henry, and Thomas Crabb Woodbridge, Exeter, Corn Merchants.
June 26 at 2 at London Hotel, Exeter. Hirtzel, Exeter

Woods, William, Ketton, Rutland, Auctioneer. June 30 at 11 at offices of Atter, Barn
Hill, Stamford

Wright, William, Brighton, Sussex, Butcher. June 26 at 12 at offices of Maynard, North
st, Brighton

SCHWEITZER'S COCOATINA,

Arti-Dyspeptic Cocoa or Chocolate Powder. Guaranteed Pure Soluble Cocoa of the Finest Quality, with the excess of fat extracted.

The Faculty pronounce it "the most nutritious, perfectly digestible beverage for Breakfast, Luncheon, or Supper, and invaluable for Invalids and Children."

Highly commended by the entire Medical Press. Being without sugar, spice, or other admixture, it suits all palates, keeps better in all climates, and is four times he strength of cocoas THICKENED yet WEAKENED With starch, &c., and IN REALITY CHEAPER than such Mixtures. Made instantaneously with boiling water, a teaspoonful to a Breakfast Cup, costing less than a halfpenny.

COCOATINA A LA VANILLE is the most delicate, digestible, cheapest Manilla Chocolate, and may be taken when richer chocolate is prohibited.

In tin packets at 1s. 6d., 3s., 5s. 6d., &c., by Chemists and Grocers.

Charities on Special Terms by the Sole Proprietors,
H. SCHWEITZER & CO 10, Adam-street, London, W.C.

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ESTABLISHED 1825.

HEWETSON, THEXTON, & PEART,

MANUFACTURERS AND HOUSE FURNISHERS,

200, 203, and 204, TOTTENHAM COURT ROAD, W.
Estimates and Designs submitted free for entirely Fur-
nishing Residences, Chambers, Offices, &c.
-PAINTING, DECORATING, & HOUSE REPAIRS.-

Carved Oak Furniture, Reproductions from Ancient
Designs, &c. Bedroom Furniture, including Bedstead and
Bedding, from £7 108. per set.

THIRTY LARGE SHOW ROOMS.

HEWETSON, THEXTON, & PEART,

200, 203, and 204, Tottenham Court-road, London, W.
N.B.-Household Furniture Warehoused or Removed
on reasonable terms.

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The FORTY-SIXTH ANNUAL GENERAL MEETING of this Company was held within their House, at Aberdeen, on FRIDAY, June 9, 1882, when the Directors' Report was adopted, and a Dividend of 20s., together with a Bonus of 10s. per share, free of income-tax, were declared, making, with the amount already paid, a total distribution of 50s. per share in respect of the year 1881. The following are extracts from the Report submitted :—

in 1880.

FIRE DEPARTMENT.

The Premiums received last year again showed an increase over those of the previous year, having been £451,487 08. 5d., as compared with £444,596 13s. 7d. The losses, as in many other offices in 1881, were heavy, and amounted to £287,526 38. 4d., or 63.68 per cent. of the premiums. This ratio is higher than that of any year since 1873, and raises the general average of the Company's experience from the beginning to 58:08 per cent.

The expenses of Management (including commission to agents and charges of every kind) came to £132,204 28., or 29.29 per cent. of the premiums, a reduction, of 41 per cent. compared with the previous year.

The result is that, after reserving the usual 33 per cent. of the year's premiums to cover liabilities under current policies, a profit was earned of £29,459 19s. 5d. which sum has been transferred to the credit of the general account of profit and loss.

LIFE DEPARTMENT.

ASSURANCE BRANCH.-The new assurances during the year reached in the aggregate the sum of £495,856, of which £162,450 was for endowment assurances payable at death or on the attainment of a specified age. These new assurances yielded annual premiums amounting to £18,033 1s. 2d., and single premiums amounting to £1,137 1s. 10d.

The total income of the year (including interest) was £242,124 18s. 10d.

The claims amounted to £122,539 163. 6d., of which the sum of £2,228 11s. 8d. was for endowments and endowment assurances payable during life.
The expenses of management (including commission) were limited to 10 per cent. of the premiums received.
ANNUITY BRANCH.-The sum of £6,594 138. Sd. was received for annuities granted during the year.

OFFICE OF GENERAL MANAGER. Mr. E. H. Mannering having resigned the service of the Company to accept an appointment in another office, the Directora have appointed Mr. Valentine sole General Manager.

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ALEANDER PEARSON FLETCHER, Esq.
ALEXANDER HEUN GOSCHEN, Esq.

WILLIAM EGERTON HUBBARD, jun., Esq.
FERDINAND MARSHALL HUTH, Esq.
HENRY JAMES LUBBOCK, Esq.
JOHN STEWART, Esq.
WILLIAM WALKINSHAW, Esq.

Fire Department-JAMES ROBB, Manager. Life Department-THOMAS H. COOKE, Actuary. General Manager-JAMES VALENTINE.
Copies of the Report, with the whole accounts of the Company for the year 1881, may be obtained from any of the Company's Offices or Agencies.

CURRENT TOPICS.

LONDON, JUNE 24, 1882.

WITHIN THE LAST TWO YEARS an addition has been made to the form of writs of attachment, by a note indorsed on all writs issued against persons in contempt under the Debtors Act (section 4 (3)), to the effect that "this writ does not authorize an imprisonment for any longer period than one year." This addition was inserted for the express purpose of getting rid of motions to discharge such prisoners at the expiration of that term. It does not appear to be generally known among practitioners that such motions are no longer necessary.

:

SEVERAL IMPORTANT AMENDMENTS were, on the motion of the Lord Chancellor, inserted in the Married Womens' Property Bill before it left the House of Lords. One of the most useful (though, perhaps, hardly the most felicitous in expression) is the following clause, which now stands as clause 3 of the Bill:"Any money or estate of the wife lent or entrusted by her to her husband for the purpose of any trade or business carried on by him, or otherwise, shall be treated as assets of her husband's estate in case of his bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or estate after, but not before, all claims of the other creditors of the husband for valuable consideration in money or money's worth have been satisfied."

ONE OF THE OFFICE RULES settled by the practice masters provides that, "In chancery actions an amendment to a writ of summons pursuant to an order of court or judge, may be made either on an undertaking to get the order drawn up, or on a separate memorandum or certificate being left for filing, signed or initialed by the judge or registrar, showing the order to have been made." The Rules of Court require an order to be drawn up in each case of amendment of writ authorized by the court; but as the only object of drawing up such order, after the amendment has been actually made within the fourteen days limited by the rules, is for the purpose of collecting the stamp, the question has been raised, Why should any order be required to be drawn up in such cases, and why should not the stamp be required to be affixed to the written authority under which the writ is amended? We believe that the question is now under considera

tion.

A QUAINT PIECE of justices' justice has come to light before Sir JAMES HANNEN this week in connection with an order for a judicial separation and for payment of alimony, which had been made by two justices under 41 & 42 Vict. c. 19, s. 4. A man was convicted of an aggravated assault upon a woman who was reputed to be his wife, and, although he denied the marriage, and no certificate of marriage was produced, the magistrates proceeded to order a judicial separation and payment of a sum of fifteen shillings a week by way of alimony. After undergoing imprisonment for default in payment of the weekly allowance, the defendant appealed against the order, and a rule has been granted calling upon the complainant to show cause why it should not be set aside. When the Act under which the order was made was passed, some misgivings were entertained as to the expediency of empowering magistrates to grant decrees for judicial separation, but it was certainly never anticipated that any magistrate would go so far as to exercise the jurisdiction without requiring any evidence of the

existence of the marriage relationship, where its existence was denied by the defendant.

There

far as we know, to construe section 14 of the Conveyancing Act, THE COURT OF APPEAL had, on Monday, for the first time so and to set the standard for deciding the terms on which relief against forfeiture is to be granted. The forfeiture in respect of which relief was applied for was for breach of a covenant to keep the demised premises insured at all times during the term. had been no loss by fire to the lessor, but it would seem that he had paid some premiums for insurance of the premises. Under these circumstances the court granted relief on the terms of the lessee's effecting an insurance in accordance with the covenant in the lease; repaying to the lessor the premiums he had paid with interest at four per cent. ; paying the rent in arrear with interest at the same rate, and also paying the costs of the action and of the appeal. This means that, where no loss has happened by fire, the court will relieve against forfeiture for breach of covenant to insure without awarding damages to the lessor. It does not seem of much advantage to discuss the question whether, under the circumstances of the case, the section of the Conveyancing Act was applicable. Section 14 expressly applies to leases made either before or after the commencement of the Act; and it cannot be doubted that it enables relief to be given against forfeiture for breaches of covenant committed before the commencement of the Act, where proceedings in respect of such breaches are commenced after the commencement of the Act. Whether it applies to proceedings for forfeiture commenced before, and pending at the time of, the commencement of the Act might perhaps have been considered somewhat doubtful. Under sub-section (2) the court, in granting or refusing relief, is to have regard to the proceedings and conduct of the parties under the foregoing provisions" of the section-that is, as to their conduct in respect to the notice required to be given under sub-section (1). This important guide for the decision of the court is absent in the case of proceedings for forfeiture commenced before the Act came into operation, for it was not then incumbent on the lessor before enforcing his right of re-entry to serve on the lessee the notice specified in sub-section (1). Whether the section applies to such a case as that before the Court of Appeal, where proceedings for forfeiture were not only commenced before the Act came into operation, but were completed up to judgment entitling the lessor to possession of the demised premises, execution being only stayed to enable the lessee to appeal, is, perhaps, still more doubtful. The court unanimously held that it does apply to such a case, and we are not concerned to contend for the limitation of the operation of section 14.

66

A COUNTY COURT JUDGE having decided in Griffiths v. Earl Dudley that a workman cannot "contract" his personal representatives "out of" the benefit of the Employers' Liability Act, 1880, it is of some importance to gather the effect of the recent judgment of a divisional court (FIELD and CAVE, JJ.), by which the judgment of the county court was set aside. The plaintiff was the widow of a deceased workman, who had accepted service from the defendant on the condition that neither he nor his representatives would prefer any claim against the defendant under the statute, and it was sought on behalf of the widow to establish a claim against the defendant notwithstanding such a contract of service, upon no less than four grounds. First, it was said that there was no consideration for the contract; but this contention was given up in argument, for it was clear that the employment was consideration. Secondly, it was said that public policy was against such a contract; but no authorities were cited

for such a proposition, and in the absence of authority it was impos-
sible to override freedom of contract. Thirdly, it was argued that
although a workman might contract himself out of the Act in
case of injury, his personal representatives had a vested right to
the benefits of the Act, of which no contract by him could
deprive them. Against this there was the unquestioned authority
of Read v. Great Eastern Railway Company (L. R. 3 Q. B. 555),
in which case it was held that an action can only be maintained
under Lord Campbell's Act in a case where the deceased could
have maintained an action if he had survived. Fourthly, the
words of the 1st section were relied on as expressly restricting
freedom of contract. The 1st section is to the effect that in cases
within the Act, "the workman, or in case the injury results in
death, the legal personal representatives of the workman,
shall have the same right of compensation and remedies against
the employer as if the workman had not been a workman of nor
in the service of his employer, nor engaged in the work." It was
attempted to show that, as the workman or his representatives
were to have the same rights "as if the workman had not been
workman," the express contract avoiding the effect of the Act,
which sprung from the fact of the deceased having been a
workman, was avoided by the effect of the Act. But, as was
pointed out by one of the learned judges, the injury also, without
which the action could not have been brought, also sprung from
the fact of the deceased having been a workman, so that the
fourth ground failed also. No leave to appeal was asked for, so
that no more will be heard of the case, the strongest, or perhaps
the only arguable, point in which-that a workman cannot
deprive his personal representatives of the benefit of the Act-will
not, of course, be available in any action for injury which may be
brought by the workman himself. The decision seems to be
unquestionable; and if an additional argument were wanted in
support of the defendant's case, it may be found in the fact that
where, in the very same session that the Act was passed, the
Legislature intended to restrict the freedom of contract, the
Legislature expressed its meaning in very express terms. "Every
agreement
which purports to divest the right of the
occupier as
reserved to him by this Act," it is said in
the 3rd section of the Ground Game Act, 1880 (43 & 44 Vict. c.
47), "shall be void." The absence of any similar expression in
the Employers' Liability Act is a strong indication that no such
restriction was intended in that Act.

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A CORRESPONDENT sends us some suggestions as to the altera

tion of the law of disclaimer of leases which deserve attention. says:

under-lessee be placed in a better condition? It seems to me that any fresh law of bankruptcy ought to provide definitely for this matter, and that it should not be left for the courts by some strained and doubtful construction to elicit some reasonable arrangement from words which do not really provide for the case at all. It does not seem to me that a decision that the under-lessee is substituted for the lessee meets the exigencies of the case. I do not see why, if the under-lease was more onerous to the tenant than the lease, the under-lessee should be put in a better position than he contracted for, merely because the lessee has become bankrupt. It is difficult to say what ought to be the arrangement, but perhaps a provision of this kind would be as good a one as could be devised:-The under-lessee should have an option to throw up his under-lease altogether. If the under-lessee refuses to surrender the premises, then it should be at the option of the lessor, whether he will grant the under-lessee a lease for the remainder of the term on the same terms as the original lease, or whether he will grant him a lease on the terms of the underlease. Of course, if the terms of the under-lease are more onerous to the tenant than those of the lease there will be some hardship to the under-lessee, but then the person who takes an underlease may justly be considered as having necessarily taken it subject to such risks as these. On the other hand, there seems to be no substantial hardship to the lessor. If the under-lessce will not accept either alternative, the lessor is only in the same position as if the lessee had become bankrupt without having created an under-lease. But if the under-lessee insists on retaining the premises, it seems fair that the lessor should have the option I suggest. If he prefer the terms of the lease, then he is only insisting on the terms of his original contract subject to which the under-lessee took the premises, his estate being a dependent and subordinate estate. On the other hand, if the lessor prefers the terms of the under-lease, then he only insists on the terms upon which the under-lessee originally took his estate."

IT WILL BE REMEMBERED that in 1879 a Select Committee of the House of Commons recommended that the law of removal of the poor should be wholly abolished, and that for the purpose of poor relief, settlement should be disregarded. The Bill "to amend the law of settlement and removal," which Mr. DODSON has recently introduced by way of partly carrying out this recommendation, may perhaps be expected to pass, but it is rather to be regretted that the Local Government Board has not seen its The Bill shortens to three way to a more sweeping measure. He "One of the principal questions involved in the sub-months the period after which a person is to acquire a status of ject of disclaimer is the position of an under-lessee upon such irremovability, fixed at five years by the first Act which conferred disclaimer by the original lessee, or his assignee. If the under-that status (9 & 10 Viet. c. 66), reduced to three years by the first lease is more onerous to the tenant than the original lease, there amending Act (24 & 25 Vict. c. 55), and reduced to one year by would seem to be no hardship in making the under-lessee tenant the second amending Act (28 & 29 Vict. c. 79). It further reduces to the original lessor on the terms of the under-lease; but if the to one year the term of three years' residence required by section terms of the under-lease should be less onerous to the tenant than 34 of 39 & 40 Vict. c. 61, to gain a "settlement." If it is worth those of the lease, as they may be where a premium on granting while to go so far, it would seem to be worth while to follow the the under-lease has been taken-and, I believe in some cases are recommendations of the committee to their full length. The -then a difficulty arises. It would be hard on the original lessor objection, of course, to abolishing the law of removal is that a that he should be bound by the terms of the under-lease. On the particular union might have to bear an excessive burden. But other hand, it is somewhat hard on the under-lessee, who has this might be remedied by a provision that where burdened perhaps paid a premium having relation to the terms of his lease, with the support of paupers who had not been resident for a to be subjected to the more onerous terms of the lease. It is specified length of time, the Imperial Exchequer should be called impossible to prevent some hardship to one party or the other, but this hardship would be much diminished for the future if the law upon to reimburse the unions in questions. made intelligible provisions on the subject. It seems to me clear that it is unjust to make the original lessor subject to a contract which he never made for himself where such contract is more disadvantageous to him than the contract which he actually made. On the other hand, the party who takes an under-lease knows that he takes an interest in an estate subject to, and dependent apon, the terms upon which such estate was originally granted. Where no question of disclaimer arises, the under-lessee's interest is subject to the payment of the rent and performance of the conditions of the original lease, and he can only safeguard himself by taking covenants of indemnity from the under-lessor. Why, because the original lessee becomes bankrupt, and is personally relieved from the conditions of the original lease, should the

The condition of Vice-Chancellor Hall shows little change.

Chief Baron Palles was taken suddenly ill on Wednesday during the hear ing of a case in Dublin.

On Thursday afternoon the Court of Common Council proceeded to the election of a remembrancer. There were twenty-two candidates, and by shows of hands they were at length reduced to three-namely, Mr. Craigie, Mr. Goldney, and Mr. Tucker. On a poll, Mr. Goldney received 149 votes Mr. Craigie 81, and Mr. Tucker 76. Mr. Tucker was, therefore, left out of Craigie 23. The election thus fell upon Mr. Gabriel Prior Goldney, who is the contest. On a further poll, Mr. Goldney received 141 votes and Mr. the eldest son of Sir G. P. Goldney.

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RIGHT OF FISHING IN NAVIGABLE

RIVER.

THE case of Reece v. Miller (L. R. 8 Q. B. D. 626), recently decided in the Queen's Bench Division, raised a point of some interest with regard to the existence of a public right of fishing in a navigable river. It is undisputed law that the general public have a right to fish in a tidal navigable river, but there has been a wide-spread belief that the public right of fishing is still wider, and that it extends to all navigable rivers whether tidal or not. We do not think that this belief has ever received much sanction from competent lawyers, but its correctness is, nevertheless, frequently asserted by correspondents of newspapers. It has over and over again been alleged that the point has not been definitively settled by any legal decision. Even if this were true, it appears to us that the point is really hardly capable of argument, but, however that may be, it is clear that the case of Reece v. Miller conclusively settles the point. The actual point that was argued in the case was whether the River Wye was tidal at the spot in question, but none the less the basis of the decision was that, in order that there might be a public right of fishing, the river must be tidal, because the court, being of opinion that it was not tidal, affirmed the conviction for unlawful fishing.

The notion that there is a public right of fishing in a non-tidal navigable river no doubt arises from the fact that in many cases of such rivers the public have de facto been permitted, without much interference, to enjoy such right of fishing, because it was not worth the while of the riparian proprietors to interfere, but to any one considering the question from a legal point of view it must be obvious that no legal basis for such a right can exist. The notion of such a right is analogous to that of a right on the part of the general public to the enjoyment of commons as recreation grounds which has often been asserted in newspapers. In the first place, it is obvious that the status of navigability cannot, in itself, carry with it the right to take fish. The two things have no necessary connection with one another. The right to navigate is only analogous to the right to pass over a highway on land. A passenger could not justify using the highway for the purpose of shooting birds or rabbits thereon. Again, this is not the question of a local custom or right to a profit à prendre. The right is claimed for the general public, not as belonging to the inhabitants of a particular district or the occupiers of particular hereditaments. We do not, of course, mean to say that any better basis could be made for such a limited right, but it is sufficient to say that no such contention arises.

The only possible legal way of putting the claim that occurs to us is, that it might be contended that the exercise of the right claimed was the universal general custom of the realm in point of fact, which, being proved to be and to have been from time immemorial universally exercised, would really form part of the common law. The fact that it was so if it existed might perhaps be proved by the statements of writers on legal subjects or other writers as matter of history coupled with modern experience, but it is obvious that if such a fact existed it would have abundant recognition in legal history. It cannot be pretended for a moment that there is anything like sufficient evidence of such recognition forthcoming. The people who put forward the idea are generally in fact votaries of the sport of fishing with rod and line, but if the right exists there seems to be no reason for confining it to that sort of fishing. It seems, however, highly unlikely that in days when fresh-water fisheries for coarse fish were of more value and importance owing to the existence of fast days, and the absence of rapid communication with the sea, the right to take these fish with nets in inland waters should have remained unappropriated, and manorial title deeds, charters, and other ancient documents give abundant evidence that such was, at any rate in many instances, not the case.

A possible legal basis of the right to fish in tidal navigable rivers seems to be that mentioned by Grove, J., in Reece v. Miller, where he says, in reference to a passage in Hale, de jure maris, "There seems strong ground, from the whole of the passage, for thinking that the public right of fishing was considered by the author as coextensive with the right of the Crown over the river for public purposes." If this be a correct account of the matter, it is

obviously fatal to the existence of the wider right, as we shall presently show. We do not suppose that such a doctrine can be considered as having been distinctly formulated and established to be the law in the most ancient times. In early days the notion of the Crown being trustee for, and representative of, the public was not very definitely acknowledged, and there can be no doubt that in the case of a fishery in a tidal river of any value in those days the Crown would have claimed the right as its own to enjoy or grant away to private proprietors as it thought fit, though as time went on the practice of the more tyrannical early kings in these respects was gradually discouraged, and ultimately rendered obsolete as in the case of grants of warrens and other matters. Indeed, we hardly think that in actual fact the right of the public can be said to have arisen out of the right of the Crown in any very direct way. It is to be observed that Grove, J., only says that Hale probably considered the rights co-extensive. It seems to us probable that it would be more correct to say that the right of the Crown over the bed, and that of the public to fish, arose naturally out of the same natural qualities of tidal navigable rivers. The tidal estuary of a river at high tide is, in fact, part of the sea. It is difficult, at any rate, to say where the sea can be considered as ending, and the land or river— for the law of real property considered a river or lake as only land covered with water-as beginning. It is obvious that the same considerations, by virtue of which the law assigns the proprietorship of the bed of inland waters to private individuals, do not apply to the bed of an estuary. At the same time the soil of the estuary is part of the realm, and it follows that the Crown, as representing the body politic, has the right of dealing with it. It seems to us probable that the right of the public to ǹish in the tidal water, as a matter of fact, really arose in the same way as their right to fish in the sea, if such a right can be said to arise. It is water which, though it may form part of the realm, is really publici juris. Of course, in the earlier stages of civilization, these rights are not very distinctly defined, and when questions subsequently arise, and exact limits must be assigned, the law must define those limits by considerations of expediency and reason. It being difficult to say exactly where the river ended and the sea began, the salt and fresh water not respectively ending at any particular point, some limit must be assigned. The flow of the tide would afford, both in practice and in theory, a limit. In some such way as this we conceive the right of the public to fish in the tidal part of a river became established.

It is not, as we conceive, just to suppose that the right of the public in fact arose out of that of the Crown in the sense that at any particular period the Crown granted or acknowledged this right, for we are not aware that there is any evidence of that. It seems to us rational to suppose that the two rights naturally arose, or were developed, out of the natural conditions of the thing over which they were exercised. An old-fashioned lawyer, the doctrine having been established that the soil of tidal waters is vested in the Crown, on the principle that the accessory goes with the principal, is naturally led to the proposition that the right of the people is derived from that of the Crown. It may be that, looking upon the expression, the "Crown," as in that relation meaning the representative of the State or body politic, the proposition is a correct way of legally expressing the doctrine, but it is not true in any other sense. You might say that the atmosphere of this country belongs to the Crown as a trustee for the body politic, and, therefore, the people's right to the air is the Crown's right to it. This may be true in one sense, but, unless "Crown" and "people" really mean the same thing in the proposition, it is a fiction.

It is obvious that, however the question is regarded, whether the right must be treated as that of the Crown or as coextensive with that of the Crown over the bed of the river, either way any right of the public to fish in nontidal navigable rivers is excluded. It has never been contended that the bed of non-tidal rivers belongs to the Crown any more than the soil of wastes or commons. The rational explanation of the undoubted and long-established right of the public to fish in tidal rivers is that the soil is not vested in any private individual, but this explanation is fatal to the larger right claimed. This was most clearly decided in Ireland in the case of Murphy v. Ryan (Ir. Rep. 2 C. L. 143), and the decision in that case has been cited with approval in English cases before Reece v.

Miller. The point directly discussed in Reece v. Miller was how far up a river can be considered tidal. It appeared that on exceptional occasions when the tides were very high the river at the spot in question was affected by the influence of the tide, but the court were of opinion that this was not sufficient to constitute the river tidal for the purposes of the legal doctrine by which the public have a right to fish in a tidal navigable river. This decision seems to be good sense.

THE INDEMNITIES OF A MESNE

LANDLORD.
I.

THE recent case of Hornby v. Cardwell (30 W. R. 263), in which two judges of the Court of Appeal (Brett and Cotton, L.JJ.) held that the contract of a sub-tenant to perform the covenants of a head lease was a contract of indemnity, so that the mesne landlord could recover from the sub-tenant the costs of an action by the head landlord reasonably defended, is a case of considerable practical importance. It is important, not only as a decision of substantive law, but also as a decision on the point of practice (merely grazed in Williams v. South-Eastern Railway Company, 26 W. R. 352) that a third party may be ordered to pay costs as between plaintiff and defendant. We will confine our remarks in the present article to the first branch of the case; but it is well to bear in mind that it has two branches; that the decision is supportable on two grounds, and that Jessel, M.R., rested his judgment on the second ground, and left the first untouched.

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on " a covenant to repair.' The reason of the decision was that
"if the tenant could not recover these damages and costs, he would
be without redress for an injury sustained through the neglect of
the defendant, and not in consequence of his own default; for
during the term he could not enter and repair the premises with-
out rendering himself liable to be treated as a trespasser." This
decision seems to have proceeded rather on the ground of
natural justice than on any legal doctrines of implication from
the language of covenants, and it is to be remarked that
not a single case was cited in the argument. In the two
cases of Penley v. Watts and Walker v. Hatton the Court
of Exchequer pointed out that the covenants to repair in the
lease and the sub-lease were not the same, and this seems to be
the ratio decidendi from the judgments. But Parke, B., in
Penley v. Watts, in the course of the argument laid down the
law as follows:-"The lessee and his assignee are liable to the
is not the case in a sub-lease: the only contract in the sub-lease is
same extent, and the assignee is a surety for the lessee; but that
to perform the covenant in the sub-lease; and the only question
here is whether these costs were the necessary consequences of
the breach of such covenant. There is clearly no contract of
indemnity."
facts to be widely different, but the law to be the same. One
Coming lastly to Logan v. Hall we find the
Middleton in 1829 demised a house for twenty-one years to the
plaintiff upon a lease containing a covenant to repair and insure.
The plaintiff in 1835 demised the house for the rest of the term
to repair and insure, which were copied from the head lease.
less one day to the defendant by a sub-lease containing covenants
The house being out of repair and uninsured, Middleton re-
entered. The plaintiff sought to recover from the defendant the
value of the reversionary interest which he had lost, and which
the jury had put at £840, but the court held that he could not do
So. Coltman, J., observed:

...

...

"This is an attempt by the plaintiff to turn this covenant into what it is not-viz., a Covenant of indemnity. The plaintiff seeks to recover from the defendant damages which are the result of his own breaches of covenant. It appears to me, upon the authority of Penley v. Watts, and Walker v. Hatton, that he cannot do this in the absence of a covenant of indemnity. It was once supposed by the Court of King's Benob, in Neale v. Wyllie, that the first lessee not having a right to enter for the from the breach of the first lessee's covenant to repair. But that was over. purpose of repairing, the sub-lessee was liable for all the damages resulting ruled by the cases above referred to; and I think, with reason, because it was competent to the first lessee to stipulate for a right to enter, or to exact a covenant of indemnity."

The facts were, shortly, these:-The plaintiff let to the defendant a house by deed, containing covenants by the tenant, in the ordinary form, to repair and paint and to yield up in repair. The defendant, by writing without seal, sub-let the same house for the remainder of his own term, the agreement between the defendant and his sub-tenant containing a general clause that "the letting should be subject, in all respects, to the terms of the existing lease, and the covenants and stipulations contained therein," and also a specific clause that the sub-tenant would, at the end of the term, leave the house in good repair. The tenancy and subtenancy determining at the same time, a survey of dilapidations was made at the instance of the plaintiff. As the result of this survey, the plaintiff claimed some £50 from the defendant for dilapidations. The defendant claimed this amount over from his Now it is plain, from a consideration of these four cases, that sub-tenant, but the sub-tenant declined to have anything to do in none of them was there a contract by the sub-tenant in terms with the matter, or to indemnify the defendant, maintaining to perform all the covenants of the head lease. There was only a that he was bound by the contract of sub-tenancy only. The contract to perform a set of particular covenants, which happened plaintiff having brought his action, the defendant brought to be identical with the covenants of the head lease. There is, in the sub-tenant as third party. The issues as between therefore, a distinction in fact between these cases and the recent the plaintiff and the defendant, and as between the defendant and We propose to consider hereafter the practical results of the third party, were separately tried before the same official the decision of the two judges that there is also a distinction in referee, who found the same amount to be due in each case. A law. divisional court confirmed the reports of the official referee, and ordered the third party to pay the costs of both trials. The third party appealing, two points were raised-(1) whether the order was one as to costs within the discretion of the court, and therefore not appealable; and (2) whether the costs were properly recoverable as upon a contract of indemnity. All the members of the court (Jessel, M.R., and Brett and Cotton, L.JJ.) concurred in holding that the costs were within the discretion of the court, and therefore not appealable. To hold this much was sufficient for a decision; but Brett and Cotton, L.JJ., decided also the further point, and held that the costs were recoverable upon a contract of indemnity. We have not, therefore, a technically binding decision of the Court of Appeal on the point of which we treat; but we have a "semble" of sufficient strength and clearness, which must be treated as law, unless and until it should be doubted in another Court of Appeal.

case.

CORRESPONDENCE.

REPAIR OF MILESTONES AND GUIDE-POSTS.

[To the Editor of the Solicitors' Journal.]

Board to the appeal of the Leicestershire magistrates should be also
Sir,—It is intimated to me that the reply of the Local Government
published, in justice to that body, and I send a copy of the reply. How
far it will be satisfactory to the wayfaring man who (though not a fool)
may easily err for want of a guide-post-will be better understood in the
winter. If a catastrophe happens in High Leicestershire-where there
are miles and miles of cross-roads, without a habitation near-I hope
that the coroner's inquest, in apportioning the blame, will at least say
does not rest upon the highway board, or on the county justices.
W. NAPIER REEVE, Clerk of the Peace.
Clerk of the Peace's Office, Leicester, June 20.
[The following is the reply referred to :-

[COPY.]

The cases in point are very few. In addition to Penley v. Watts (7 M. & W. 661), Walker v. Hatton (10 M. & W. 249), and Logan v. Hall (14 C. B. 598), there is Neale v. Wyllie (3 B. & C. 535), In this case it was expressly held that the Local Government Board, Whitehall, S.W. damages and costs recovered in an action by a head landlord 31st December, 1881. against a tenant on "a covenant to repair" might be recovered as Sir, I am directed by the Local Government Board to acknowledge special damages in an action by the tenant against an under-tenant the receipt of your letters of the 19th and 24th instant, and to state that

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