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PALLISER v. GURNEY-C. A. No. 1 (sitting as a Divisional Court), defendant uppealed. It was argued on behalf of the defendant that the agree
of it contained in the bond. Chitty, J., granted an injunction, and the 18th July.
ment was only a joint one-not joint and several -and was intended for the CONTRACT OF MARRIED WOMAN-SEPARATE PROPERTY AT TIME OF Con- protection of the joint business only, and that business being now at an end, TRACTING-MARRIED Women's PROPERTY ACT, 1882, s. 1.
the plaintiff alone could not sue on the agreement; that acting as an assistThis was an appeal from the judgment of the judge of the City of ant to another person was not a breach of an agreement not to set up or London Court. The action was for £17 10s., the price of wine supplied carry on the business or profession of a surgeon,” &c.; and that the to the defendant's order. The defendant was a married woman, who was bond meant any person or persons other than the parties to the agree
" in the condition of the said to be carrying on business as a Court dressmaker ; but there was no ment, and did not apply to the acting as an assistant to one of those persons. evidence that she was possessed of any separate property at the time when she ordered the wine. The judge gave judgment for the defendant. . It sion. Corton, L.J., said that it was necessary to look at the position of the
THE COURT OF APPEAL (Cotton, Bowen, and Fry, L.JJ.) affirmed the deci. was argued on behalf of the appellant that the intention of the Married parties at the time when the agreement was entered into. Women's Property Act, 1882, was to confer on every married woman the
H. & P. were capacity of contracting so as to bind any separate property which she
then carrying on business in partnership, but, though the partnership became possessed of, and that it was not necessary that she sbould have interest in the agreement, but each of them had also a separate interest
was for their joint lives, it was liable to be dissolved. They had a joint separate property at the time of contracting. Sub-sections 3 and 4 of in the event of a dissolution of the partnership. That being so, his lordsection 1 were relied on, and it was urged that the judgment of Pearson ship thought that the proper construction of the agreement, which was J., in the case of Re Shakespear, Deakin v. Lakin (33 W. R. 744, 30 Ch. evidently not fully recited in the bond, was that it was entered into by the D. 169), ought not to be followed. missed the appeal. The question whether the defendant was bound by joint or several according to the interest of the parties appearing upon the The Court (Lord Esher, M.R., and Lindley and Lopes, L JJ.) dis- defendant with L. & P., jointly and severally. Parke, B., said, in Sorsbie v.
Park (12 M. & W. 158), « The rule is, that a covenant will be construed to be this contract depended on the Married Women's Property Act, 1882, face of the deed, if the words are capable of that construction; not that it Section 1, sub-section 2, of that Act said that a married woman should will be construed to be several by reason of several interests, if it be be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract.
expressly joint.'' And the rule was similarly stated in Sheppard's struction of those words must be, in accordance with the decision of Touchstone, 7th ed., vol. 1, p. 166. In his lordšhip’s opinion the court Pearson, J., that a contract to bind a married woman must be a contract having only this recital before it, which both parties had admitted was entered into by her at the time when she had existing separate property. to the position of the parties, to be considered joint and several. Then
the only evidence of the agreement, the agreement ought, having regard Sub-section 3ohad been inserted to meet a difficulty, which had been it was said that the agreement being "not to set up or carry on the previously felt, as to whether a married woman's separate property was business or profession of a surgeon," &c., it was not a breach of it to act as bound by her general engagements; and the meaning of it was that assistant to another person who was carrying on such a business when where any contract had been entered into by a married woman, that is, the assistant had no interest in the profits of the business. His lordship by a married woman having at the time separate property, that contract, thought this could not depend upon whether the assistant received only should bind her separate property, whether the separate property was mentioned in the contract or not. And sub-section 4 meant that where a
a salary. The case was quite different from that of a covenant not to carry married woman having separate property entered into a contract, she
on a trade, such as Allen v. Taylor (19 W. R. 556). Such a covenant implied thereby bound, not only her then existing property, but also any future
the carrying on of a trade in such a way as to share in the profit or loss. separate property which she might acquire. Here there was no evidence
Here the words were “ business or profession,” and his lordship could not that the defendant had any separate property at the time of entering into
see how a man was the less carrying on “the business or profession of a the contract. Therefore the judgment for the defendant was right.
surgeon ” when he was only acting as assistant to another person than Counsel, Hilbery; Gye. SOLICITORS, R. Chandler ; G. S. § H. Brandon.
when he was doing so on his own account. And the word “profession”
was much more emphatic than the word “business." Bowen and FRY, PALMER v. MALLET—C. A. No. 2, 13th July.
L.JJ., concurred.-Counsel, Aston, Q.O., and Yate Lee; Romer, Q.C, and COVENANT-CONSTRUCTION-JOINT OR SEVERAL-COVENANT IN RESTRAINT
Alan Stewart. Solicitors, Bolton, Robbins, Busk, & Co.; Talbot f Quayle. OP TRADE ENTERED INTO WITH PARTNERS-DISSOLUTION OF PARTNERSHIP -SUBSEQUENT BREACH AS TO ONE PARTNER.
Re AVERY'S PATENT-C. A. No. 2, 18th July. This was an appeal against an order made by Chitty, J., restraining the Patent—Revocation—"Fraud "-Patents, Desians, and Trade-Maris defendant from committing a breach of an agreement not to set up or
Act, 1883, s. 26. carry on the business or profession of a surgeon, &c., within certain This was an appeal from a decision of Stirling, J. (35 W. R. 541), re. limits. In October, 1885, the defendant, M., entered into the employment fusing to revoke a patent on the ground of “fraud.”. Section 26 of the of H. & P., who were then carrying on in partnership, at Newtown, the Patents, Designs, and Trade-Marks Act, 1883, provides that the revocabusiness of general medical practitioners, as their salaried assistant. On tion of a patent is to be obtained by petition instead of by the old writ of the 4th of December
1885, the defendant gave H. & P. a bond, by which scire facias. Sub-section 4 of section 26 provides that the petition may he became bound to pay to them, their executors, administrators, or be presented (c.) by “any person alleging that the patent was obtained in assigps, the sum of £1,000. The bond contained the following recitals : fraud of his rights, or of the rights of any person under or though whom "Whereas M. has lately been taken into the employment of H. & P. as an
he claims,” and (a.) by "any person alleging that he, or any person assistant in their business or practice of surgeons, accoucheurs, and under or through whom he claims, was the true inventor of any invention apothecaries, carried on by them in Newtown and its surroundings'; and included in the claim of the patentee.” The present petition was prewhereas one of the terms upon which M. was taken into the employment sented under (C); The petitioner, Avery, had a patent in America. of H. & P. was that he should not at any time set up or carry on the In January, 1885 , he executed a power of attorney to W. to apply for patents business or profession of a surgeon, accoucheur, apothecary, or physician in England and other European countries, and also gave W. power to appoint in Newtown, or within ten miles thereof, and that he should enter into a substitute. At the same time an agreement was entered into between and execute these presents." The condition of the bond was, “ that, if M. Avery, W., and L. and B., under which the four were to participate shall not at any time hereafter, directly or indirectly, and either alone or equally in the profits to be derived from licensing the use of and selling in partnership with or as assistant of any other persun or persons, or the patents in Europe. W. appointed L. his substitute; L. took out the otherwise howsoever, set up or carry on the profession or business of a patent, but in doing so he did not take it out as "a communication from surgeon, accoucheur, apothecary, or physician, or any branch thereof, or abroad," but declared that he was himself the first and true inventor. town, or within ten miles thereof, without the consent in writing of patent rights. The petition alleged that, instead of obtaining letters H. & P., their executors, and administrators, or assigns, being first obtained patent on behalf of the petitioner on a communication from abroad, w. for that purpose ; and if M. shall not, either by himself or by any other had conspired with L. to wrongfully and by fraud obtain from the Person or persons, either on behalf of himself or any other person or per. Crown the grant of letters patent on behalf of himself as the true in. sons, at any time hereafter solicit the custom or support of any of the ventor. persons who are now, or may hereafter from time to time be, the order for revocation. B. and the company were also respondents, and they assigus, or either of them, in or in connection with such profession or patent as he did under the advice of a patent agent. Stirling, J., held business as aforesaid, or solicit any of such persons to discontinue his or that there was no actual fraud, and that the fraud which is necessary for her employing H. & P., their executors, administrators, or assigns, or the revocation of a patent under sub-section 4 (c.) must be something more affect the right of H. & P., their executors, administrators, or assigns, to
a fraud on the petitioner, or an intention to derive some benefit to which restrain by injunction any breach on the part of M. Of the agreement the person taking out the patent was not entitled. He dismissed the had mein before recited, and to recover damages against him, this executors, petition, but without prejudice to the right of the petitioner to present a administrators, or assigns, for any antecedent breach thereof, in lieu of fresh petition under sub-section 4 (d.), on the ground that he was the true intaking proceedings against him or them under the above-written bond), ventor. On behalf of the appellant it was urged that it was not necessary then the above-written bond shall be void and of no effect, or otherwise that anything should have been done with an intention to deceive or get the partnership was dissolved by the judgment of the court in an action properly done by an agent so as to take away rights of his principal and for dissolution, and thenceforth u. demontach hearried ton a business Occasion him 1088. The declaration by L. that he was the true inventor fins a salaried assistant, and P. brought this action to restrain the defendant was, therefore, a fraud on the appellant's rights in the invention. the above agreement. The only evidence of the agreementimate the recital decision, reserving, as Stirling, J., had done, a right to the petitioner to
present a new petition under sub-section 4 (d.) Cotton, L.J., said that there 1862, by the allottees of fully paid-up shares, for rectification of the was no evidence that L. had committed any fraud in fact, the evidence register of shareholders by striking out the applicants' names therefrom was the other way. In his lordship's opinion, the mere fact that an agent and for re-issue to the applicants of new shares. It appeared that in had made a mistake, even though it caused loss to the principal, was March, 1883, an agreement was made between the applicants and the not enough to enable the court to say that there had been an act done in company for the erection by the applicants of certain buildings, and that fraud of the principal's rights. In order that there might be “fraud" the applicants should receive fully paid-up shares in part payment for there must be something done with an intention to deprive the principal their work. In August, 1883, the shares were issued to the applicants of his rights, or to give the agent a benefit. Bowen and Fry, L.JJ., upon completion of the work. In August, 1886, it was ascertained that concurred.-COUNSEL, Oswald and Roger W. Wallace ; Pochin ; Graham | the agreement had never been registered as provided for by section 25 of the Hastings, Q.C., and Yate Lee. SOLICITORS, Edmund Kimber; Neish f Companies Act, 1867. It was submitted, on behalf of the applicants, that Howell.
in order to obtain an order on the motion all that was required was
evidence that the allottees were ignorant of the omission to register. Re KNIGHT, KNIGHT v. GARDNER-Kay, J., 19th July.
Re Denton Colliery Co. (22 W. R. Dig. 66, 18 Eq. 16); Re New PRACTICE — ADMINISTRATION ACTION – INQUIRY AS TO Herr-AT-LAW – Zealand Kapanga Gold Mining Co. (18 Eq. 17); Re Droitwich Salt Costs of UNSUCCESSFUL CLAIMANT.
Co. (22 W. R. 767); and Re Darlington Forge Co. (35 W. R. 537, 34 Ch. An inquiry having been directed in this action as to who was the heir- D. 522) were cited. The company appeared and raised no objection. It at-law of the deceased, two persons brought in rival claims, which were appeared that there were only two creditors of the company, one of whom investigated in chambers, and one of the claimants was found by the chief
was stated to assent to the application, and the other, a mortgagee, had clerk to be the heir-at-law. Thereupon the unsuccessful claimant took out not assented. a summons to vary the certificate by declaring him to be the heir-at-law, Kapanga Goià Co., which was the case chiefly relied upon by the appli;
CHITTY, J., said that he had sent for the affidavits in Ro New Zealand and the certi icate was varied accordingly, the court proceeding mainly on the ground that certain hearsay evidence which had been adduced in cants, and it appeared from them that in that case there was the strictest
He should make an order as support of the rival claim was inadmissible without independent evidence evidence of the solvency of the company. that the deponent was a member of the deceased's family. The question asked upon productiou of evidence of the assent of the one creditor, and then arose whether the claimant who had failed was entitled to his costs the order must also be served on the other creditor, with leave for him to out of the estate, or was liable to pay the costs occasioned by his claim.
move within three weeks to discharge it.—Counsel, Romer, Q C., and KAY, J., held that there was no general rule that, on an inquiry as to
F. B. Palmer; G. P. C. Lawrence. SOLICITORS, Mackrell, Maton, of Godle ; who was heir-at-law or next of kin, a person who failed to establish his Baker, Blaker, & Hawes. claim was entitled to have his costs out of the estate. On the contrary, the rule was correctly stated in Seton on Decrees, 4th ed., p. 66, 67, that
HERON v. HERON-North, J., 18th July. & claimant failing in chambers to make out his claim might be ordered MARRIED WOMAN_EQUITY TO A SETTLEMENT-ABSOLUTE LEGAL INTEREST to pay the costs thereby occasioned. But this rule must be applied IN LEASEHOLDS AND SHARES IN JOINT-STOCK COMPANIES JUDICATURE according to the circumstances of each case. In the present case the Act, 1873, ss. 24 (4), 25 (11). unsuccessful claimant would not have any costs of the inquiry, and must pay the costs of the summons to vary the chief clerk's finding. - Counsel,
In this case a question arose as to the effect of the Judicature Act, 1873, Millar,, Q.C, and Methold; Marten, Q.O., and Eyre; Vernon Smith ; and upon a married woman's equity to a settlement. The plaintiff, who was S. Stephens. Solicitors, Jennings, Son,, , Burton ; G. L. P. Eyre & Co.; ber, 1880, entitled to some leasehold houses and soma shares in joint
then a spinster, became, under the will of an uncle who died in NovemBurton, Yeates, Hart, & Burton; R. Hewlett.
stock companies. In May, 1882, she married J., and he, in September, HARVEY v. OLLIVER-Kay, J., 19th July.
1885, executed an assignment, by way of ortgage, of the houses and the Costs_TAXATION-APPOINTMENT OF New TRUSTEES-Costs, CHARGES, AND
shares to R. R., in October, 1885, commenced an action in the Queen's
Bench Division against the wife, for the recovery of the title deeds EXPENSES INCURRED AS Trustees-Expenses INCURRED BEFORE The relativg to the houses and the certificates of the shares.
The shares APPOINTMENT-COSTS OF FORMER TRUSTEES-Costs or EXAMINING Con stood in the wife's maiden name. The wife delivered a counter-claim DITION OF ESTATE-CosTS OF DONEE OF POWER OF APPOINTMENT.
by which she asserted that she had an equity to a settlement out of the This was a summons to allow the defendants' objections to the taxation property, and she brought this action in the Chancery Division e gainst of their costs and to refer it back to the taxing master to vary his certifi her husband and R. to enforce that equity. The actions were concate. The action was for partition of real estate devised by a will which solidated, and the consolidated action came on to be argued, on the ques. contained a power to appoint new trustees. By an indenture of the 3rd tion of law, whether such a right as the wife alleged could exist.
On of March, 1883, the donee of the power appointed the defendants trustees behalf of the defendants it was contended that the husband had a legal of the will in the place of the original trustees, who were dead. On the right to the property by virtue of the marriage, and that, as he did not 27th of March, 1885, an order was made in the action which, inter alia, need the assistance of a court of equity to enforce his right, no equity to a directed taxation of the costs of the parties, including in the costs of the settlement could exist. On behalf of the wife it was urged that since the defendants "any costs, charges, and expenses properly incurred by Judicature Act every branch of the High Court is a court of equity them as trustees of the will of the testator beyond their costs of the
as well as a
law, and that, in case of any conflict between the action.” On taxation the taxing master disallowed-first, payments made rules of equity and the rules of common law, the rules of equity are to by the defendants in respect of expenses incurred by the original trustees prevail. Consequently, if a husband now came to a court of law to before the 3rd of March, 1883. These payments had been made to the enforce bis legal right to his wife's property, that court would recogexecutor of the last surviving trustee, who refused to transfer the estate nize her right to a settlement. And it did not signify whether the till he was paid. They consisted of charges by the solicitor of the execu application to the court was made in the first instance by the husband or tor for winding up and transferring the estate to the defendants. the wife. Secondly, the costs of examining by their own solicitor into the condition North, J., held that there was no equity to a settlement. The husband of the trust funds—the details of which were excessively complicated had a legal interest in the leaseholds, and he was not claiming the assistand the validity of their own appointment. Thirdly, the costs of the ance of any court. Whether, if he were coming to the court to assist him donee of the power, consisting of the bill of the solicitor employed by her in enforcing his right, the wife would have any equity to a settlement it and the original trustees relating to obtaining the consent of and appoint was not necessary to decide, though, in that case, there might be a good ing the new trustees. The taxing master did not go into the items, but dis deal to be said in her favour. But, as he was not invoking the assistance allowed all these costs on the ground that the order gave costs to the of the court, it was clear that before the Judicature Act the wife would defendants only, and that that did not include the costs incurred before have had no right to intercept his legal right, and the Judicature Act had their appointment.
made no difference. The shares stood in the same position. Kay, J., said that he had never before heard it disputed that, where new under the Companies Clauses Act, 1845, or under the Companies Act, trustees were appointed under a power contained in the instrument 1862, the husband could enforce the registration of the shares in his own creating the trust, the costs of that appointment, including those of thedonee name without the wife's assent, and in spite of her opposition.--Counsel, of the power, ought to be paid out of the estate. On the first point, the Cozens · Hardy, Q.C., and Yate Lee; Cookson, Q.C., and Gatey. SOLICITORS, defendants were perfectly right if the charges they paid were such as the E. Flux f Leadbitter ; Pattison, Wigg, f Co. original trustees were entitled to make. It was for those who objected to the payment to shew that it was wrong, and they had not done so. On
Re COLLINGE'S SETTLED ESTATES—North, J., 14th July. the second point, it was not only the right, but the duty, of new trustees to SettleD LAND-Tenant FOR LIFB-Power of SALE-TENANT FOR LIFE inquire into the condition of the estate of which they were to be trustees, and to have the costs of transferring the estate to them treated as costs of
or UNDIVIDED Moiety-SETTLED LAND Act, 1882, ss. 2 (5) (6), 19. their appointinent. On the third point, the costs of the donee ought to moiety of land had power to sell the land under the Settled. Land feet;
The question in this case was whether a tenant for life of an undivided be paid out of the trust estate. The only way to get them was to ask the 1882.) A testator by his will, made in 1852, devised real estate to trustees. paid out of the estate. The particular items would, of course, be subject trust not divides the income between his sons James and John, in equal to the taxing master's discretion. -COUNSEL, George Henderson ; Levett. Thares, during their respective lives, and after the death of either of titering SOLICITORS, Rose of Johnson ; Bolton, Robbins, f Busk. Re THE BROAD. STREET STATION DWELLINGS AND WORK. surviving son and the issue then living of the deceased son (the issue to SHOPS CO.-Chitty, J., 15th July.
take the parent's share only), and after the death of the survivor of the COMPANY-CONTRACT IN CONSIDERATION OF ALLOTMENT OF FULLY PAID
testator's sons, on trust to sell the property, and to divide the proceeds UP SHARES-OMISSION REGISTER--RECTIFICATION REGISTER
of sale, and the rents until sale, into two equal shares, and to pay one of COMPANIES Act, 1867, s. 25.
such shares to the issue of the 'son James and the other to the issue of In this case a motion was made under section 35 of the Companies Act, I should die without leaving issue, then on trust to pay one moiety of the
the son John, in equal shares. But, in case the song, or either of them,
proceeds of sale, and of the rents until sale, to such person or persons would, therefore, be granted so far as to restrain the defendant from proas such son or sons so dying without issue should bequeath the same by his ducing further copies of the picture.-COUNSEL, Hastings, Q.C., and will. The will did not contain any disposition of either moiety in case of the sons, or either of them, dying without issue and without exercising Poole & Co.
Alexander ; Fischer, Q.C., and Beddall. SOLICITORS, Herbert Bentwitch ; the power of appointment thus given to him. The testator died in April, 1852, and the wife died in April, 1876. The son, John, died in January, 1876, without baving been married, and without having exercised the
THE POSTMASTER-GENERAL v. GREEN-Q. B. Div., 20th July. power of appointment. His moiety of the estate accordingly descended Post Office–TELEGRAM Sent by MISTAKE AS A PRESS MESSAGE–Excess to the son James, as undisposed of by the testator's will. James had
CHARGE. issue. He sold the moiety which thus descended to him, and conveyed it to the purchaser in fee. In August, 1886, the court appointed trustees of London Court. The action was for 3s. 60., excess charge on a telegraphic
This was an appeal from a judgment of the Judge of the City of the will for the purposes of the Settled Land Act. the trustees notice of his intention to sell the undivided moiety of the message. The defendant handed in at a post office a message on a press land of which he was tenant for life under the will. The trustees took Office, a press message can only be addressed to newspapers, clubs, or
messagform with three addresses. By the rules of the General Post out this summons to determine whether he was entitled to do this. Sub agencies registered at the General Post Office for the receipt of telegrams, section 5 of section 2 of the Settled Land Act, 1882, provides that “The The charge for press messages is at the rate of one shilling for a hundred person who is for the time being, under a settlement, beneficially entitled words. Two of the addresses given by the defendant were registered to possession of settled land for his life, is, for purposes of this Act, the addresses ; but the third, that of the Central Press, was not registered. tenant for life of that land, and the tenant for life under that settlement." This was 'not noticed by the clerk, who demanded 2s. 4d., and sent the And by sub-sectiun 6, “ If, in any case, there are two or more persons telegram as a press message. Subsequently the Post Office demanded so entitled as tenants in common, or as joint tenants, or for other concurrent estates or interests, they together constitute the tenant for life for master-General brought this action, and obtained judgment.
3s. 6d., the excess charge. The defendant refusing to pay, the Postpurposes of this Act.” By section 19, “Where the settled land comprises an undivided share in land, or, under the settlement, the settled argued on behalf of the appellant that the question whether any address land has come to be held in 'undivided shares, the tenant for life of an that, after the message bad been sent, no claim could rightly be made for
was registered was a matter within the knowledge of the Post Office, and undivided share may join or concur in any manner, and to any extent necessary or proper for any purpose of this Act, with any person entitled any excess. to or having power or right of disposition of or over another undivided
The Court (Lord Esher, M.R., LINDLEY and LOPES, L.JJ.) dismissed
the appeal. The clerk had made a mistake, but that did not operate as NORTH, J., held that the tenant for life was not entitled to sell the
an estoppel. He had not made any representation, and, if he had, he had settled moiety. He was not entitled to the beneficial possession of "land"
no authority to do so.-COUNSEL, H. C. Richards; Casserley. SOLICITORS,
J. G. Lemon; Solicitor to the Post Office. for his life, but only to possession of an undivided moiety of land. Sub. section 6 recognized a case in which there were tenants for life of undivided moieties of land, but it did not say that each of them should be
"tenant for life.” During the joint lives of the sons James and John neither of them could have sold alone, and if James could not have sold alone during the life of John, it was not easy to see why he could sell alone when
CASES AFFECTING SULICITORS. the other moiety had become vested in a stranger. Section 19 only pro
MUNTON v. LORD TRURO-Q. B. Div., 20th July. vided'that the tenant for life of an undivided share might "join or concur”. MIDDLESEX REGISTRY-RIGHT TO ADMINISTER OATH VERIFYING MEMORIAL. with any person entitled to, &c., another undivided share. It was contended that that section did not prevent the tenant for life of an undivided moiety
This was an action brought against Lord Truro, the Registrar of the from acting alone. If this had been intended the Legislature would have Middlesex Registry, by Mr. F. K. Munton, for a mandamus to compel the said so. The Legislature had taken care to protect the interests of registrar to register à memorial, the oath relating to which had been persons entitled in remainder, and there were obvious reasons rendering taken by Mr. Munton as a London commissioner to administer oaths; and it undesirable in their interest that a tenant for life should have power to sell an undivided moiety separately. In his lordship’s opinion the tenant memorial, the registrar contending that the oath can only be adminisfor life could not sell without the concurrence of the owner of the other tered at the office of the Middlesex Registry by one of the officials there. moiety:-COUNSEL, Upjohn; L. Ryland. SOLICITORS, Clarke, Woodcock, f.
Mr. Munton's affidavit in support of the application for mandamus Ryland.
stated the material facts as follows:-1. On the 13th day of May, 1887, I attended at the Middlesex Registry, 12, Great James-street, Bedford-row,
W.C., for the purpose of registering a memorial of an indenture dated the Re MARCUS, MARCUS v. MARCUS–North, J., 19th July. 8th day of July, 1885, between the Duke of Northumberland of the one PRACTICE-ORIGINATING SUmmons — INQUIRIES–FURTHER CONSIDERATION.
part and myself and another of the other part, being a conveyance of cer.
tain freehold property in the county of Middlesex, which memorial is This was an originating summons raising points as to the construction shewn to me at the time of swearing this my affidavit, and is marked A. of a will. It came on for hearing in January, 1886, when some of the 2. The defendant Lord Truro is the only registrar. "On the occasion in points were disposed of and certain inquiries were directed. Further question I saw Mr. Stahlschmidt, the deputy-registrar, and I tendered to consideration was not adjourned, but liberty to apply was reserved. The him for registration the said memorial with the conveyance, offering to inquiries having been answered,' some questions of construction remained pay the proper fees thereon, but the said deputy-registrar declined to to be argued, and application was made to the court for directions as to receive the said memorial on the ground that the witness deposing thereto the mode of bringing on the case for argument,
was resident in London, and that his deposition taken before a London NORTH, .., said that the case might be placed in the paper on the next commissioner to administer oaths, as shewn on the back of the said day on which he should take further considerations.- COUNSEL, Farwell. memorial, was inadmissible. 4. In the said office of the said registrar SOLICITORS, Pritchard, Englefield, 8: Co.
there is a written announcement, and the said deputy-registrar personally
stated, that the form of taking the oath out of London is similar to that TROITZSCH v. REES—Stirling, J., 15th July.
adopted in the present instance, except that the registry does not even COPYRIGHT - PICTURES-INFRINGEMENT-SALE OF
require commissioners to describe themselves as more than commissioners COPIES MADE
to administer oaths in the Supreme Court of Judicature. Many of such REGISTRATION—ExtRY OF “SUBSEQUENT ASSIGNMENTS” —25 & 26 Vict. officers are not, and never were, either masters extraordinary or chancery c. 63, ss. 1, 4. etiche plaintiff in this cake applied for an injunction to restrain the Judicature Acts from the fact that at the time of the passing of the Acts Thealing the Sick" or otherwise infringing the plainlift's copyright as I myself am one of such commissioners. 5. The said deputy-registrar therein. The plaintiff, who had purchased the picture and copyright, admitted to me that, except as regards the locality of taking the oath, on registered it at Stationers”. Hall on the listh the paperin, 1881, under the which ground alone' the papers were refused, every other requisite for Copyright Acts 5 & 6 Vict. c. 45 and 25 & 26 Vict. c. 68. The defendant registration of my memorial was in order. de hecho espelho registration, and had sold "copies of that engraving, some of memorial to be registered should be under the hand and seal of some or eneration was whether, and to what extent, the plaintine's copyright had the witnesses to the deed, which witness shall, upon his oath before one of bendinfringed by the defendant, and that depended chiedy cupon'sections the registrars tor masters, or before a master in Chancery, ordinaryoor extra1 and 4 of the Copyright Act, 1862 (25 & 26 Vict. c. 68).
ordinary, prove the signing and scaling," &c. Under 16 & 17 Vict. c. 78, made before the date of registration the mofitne mücture whicho chlebe on the exercise the functions previously tesercised berehe masters' extreme
a Priester (19 Q. B. D. 485 she wed conclusielt that the sale after ordinary, and the Lord Chancellor was empowered from time to time to restrained from producing any further copies of the picture, it had been restre fred With regard to the question whether the defendant could be and these persons were to be called of London commissioners to administer
oaths in chancery." The Judicature Act, 1873, provided (section 82) that a person and lite Q. B. 115) shewed that it was not presentary theo plegister amandamus maitegranted in May Tase, and the question now came on for Geriatrineas no entry of the assignments or the copyinight to the braintinët tauses and matters in the High Court ori Court of Appeal. "A rule nisi for a prior assignment, and his lordship thought that it was not necessary argument. under which the person who hrif makes the entry cheminster the injunction it appeared Clear upon the fact 10 2017 vict. that the power of the
are : .
masters extraordinary under the Act of Anne had been transferred to the present commissioners for taking oaths. WILLS, J., concurred, and said
LAW SOCIETIES. that as the masters extraordinary had formerly power to take the oath to the memorial, the commissioners now had the power. --Counsel, Reid,
INCORPORATED LAW SOCIETY, Q.C., and Murray; Channell, Q.C., and Trevelyan.
The following are further extracts from the report of council, continued from p. 632.
Agricultural Holdings (England) Act, 1883-Bailiffs' Fees.- Last year THE RE-ORGANIZATION OF THE CENTRAL OFFICE the council referred to the fact that they had communicated with the
provincial law societies and numerous solicitors on the subject of the OF THE SUPREME COURT.
appropriation by the bailiff of the statutory poundage on levying disThe report of the Committee on the Central Office of the Supreme Court tress on agricultural holdings. After careful consideration of the has just been published. The conclusions arrived at by the committee various opinions they collected, they came to the conclusion that the
percentage was not payable to the bailiff who executed the distress, but “1. That a thorough re-organization of the Central Office is required. to the landlord. In pursuance of this opinion, the council took up a
“2. That structural changes in the Royal Courts of Justice (which do test case, which was heard at the Wantage County Court, wher judg. not appear to present any difficulty) will be required for that purpose.
ment was given in accordance with this view. The Cornwall Law "3. That the number of eighteen masters provided by the officers Act, Society called the attention of the council to another case in which the 1879, is excessive.
county court judge at St. Austell gave a contrary decision. The “4. That certain duties now performed by masters might be performed council supported an appeal against this decision, and, in the result, by other masters.
their view has been sustained by the Queen's Bench Livision. " 5. That the number of clerks of higher grades might, upon re-organ
Death Duties-Claims of the Crown.-In their last report the council ization, be materially reduced.
referred to the steps which they, with the assistance of Mr. Gregory, “6. That all officers should be in attendance throughout the office hours, had taken for limiting the claims of the Crown with regard to deaih and that some effective supervision should be devised to secure this duties, and pointed out the hardships to which trustees, executors, and attendance.
others liable for the payment of these duties were exposed by the present The effect of the first recommendation, if carried into effect, will be to law. At the time, the Government which has since gone out of office divide the clerical staff into three grades—the first class, equivalent to
undertook to introduce the clause proposed by Mr. Gregory into an managing clerks to solicitors, ruceiving a salary of £500, rising to £600. omnibus Bill. The council brought the question under the notice of the The second and third class clerks, whose duties are purely clerical, will present Chancellor of the Exchequer, who has promised to give it carereceive respectively £250, rising to £400, and £100, rising to £250.
ful consideration. The structural alterations mentioned in the second recommendation Counsel's Clerks' Fees.-In July, 1886, the council called the attention of have been carried into effect.
the Bar Committee to the fact that some barristers' clerks were in the When the committee came to consider the question of the number of
habit of soliciting and pressing for payment of clerks' fees in excess of masters they seem to have had a somewhat difficult problem to grapple those regulated and allowed by the Rules of the Supreme Court, 1883. In with. Reference is made to the irregularity in the hours of attendance and the opinion of the council, solicitors ought to adhere to the rules instituted the almost uniform recurrence of days of absence in the case of some of for their guidance by the proper authorities and for the public good. In the masters. The committee recommend that all future appointments to many instances, however, solicitors have to choose between submitting to the office of master should, as in the case of chief clerks, be subject to the a trifling imposition or raising at a critical juncture a petty and irritating condition that they should retire on a pension on attaining the age of question, and find it expedient, as the lesser evil, to yield. This places seventy, unless, for special reasons, the appointing authorities should solicitors in a false position. No clerks' fees paid'in excess of the allowallow them to continue their duties for another five years. The committee ance under the rules are recoverable on taxation even as between solicitor are of opinion (to which they attach considerable weight on account of its and client, and, if questioned, would have to come out of the solicitor's bearing on the question of numbers) that the masters should distribute own pocket. The council felt that solicitors ought to be relieved from this their work over the whole of the office hours. The committee think that embarrassment, and they suggested to the Bar Committee that this could only fifteen masters are required for the conduct of the Central Office, properly and easily be accomplished if the Bar Committee would obtain with salaries of £1,200 rising, after three years, to £1,500.
the establishment of a rule that barristers' clerks should not ask for nor The effect of the fifth recommendation, if carried into effect, would be accept gratuities beyond those allowed by the scale, The Bar Committee to reduce the number of first-class clerks from seventeen to ten, and of agreed with the council that these rules ought to be adhered to, and the second class from forty-one to twenty-nine. A scheme for the re- they accordingly requested members of the bar to call their clerks' attenorganization of the various offices, based upon suggestions made by Sir
tion to the matter. Frederick Pollock and Master Jenkins, is, however, contained in the Refresher Fees to Counsel.-In June, 1886, the council called the attention report, the effect of which would be to make the total number of clerks of the Bar Committee to the decisions of the late Mr. Justice Pearson and seventy-three-viz., ten first class, twenty-nine second, and thirty-four the Court of Appeal in the case of Re Harrison (Weekly Notes, 24th April, third.
1886, p. 85, and 5th June, 1886, p. 104), suggesting the advisability of The committee recommend that the retirement of unnecessary officers some concurrent or joint communication on the subject being made to should be effected as soon as practicable, and that for this purpose the the Rule Committee of the Judges on behalf of the bar and the solicitors. committee of masters named in the report should be empowered to call The decisions of the judge of first instance, and of the Court of Appeal, upon any officer who is incapacitated by age, infirmity, or other cause for were based on the Rule of 1883 being imperative, and the absence of power the efficient discharge of his duties to retire upon the pension for which for the court or the taxing master to allow more than the prescribed bis length of service qualifies him, and to offer to such other officers as amounts without satisfactory evidence or authority from the client to pay they may select permission to retire on the abolition of their office on the the higher fees. No comment on the rules is necessary as far as regards special terms of pension reserved for such retirement by section 7 of the the taxation of costs between party and party, but the council consider
The committee believe that by these means and by that it is manifestly inconvenient and inconsistent that the taxing master the vacancies from death and other natural causes, the office will shortly should have no discretion in this respect when taxing costs as be: be reduced to the required limit without the necessity of compelling any tween solicitor and client. In practice it is extremely inconofficer to retire compulsorily who is able and willing to discharge his venient and often impossible for solicitors, during the progress duties to the satisfaction of the heads of the department.
of a contentious business, to obtain express authority on such a matter. With regard to circuits, the committee think (1) that no clerk of assize The client is often absent, and at other times is in a state of excitement, to be hereafter appointed should be a solicitor practising within the or occupied with the exigencies of the case ; and it not unfrequently circuit ; (2) that every clerk of assize or other officer to be hereafter happens that during the trial questions of character or otherwise arise appointed should do bis work in person; (3) that no change should be which greatly alter the aspect of the matter in litigation. In such cir. made in existing salaries, but that in future appointments no clerk of cumstances the solicitor is practically compelled, in the interests of his assize, except on the Northern Circuit, should have more than £800 a client, to act on his own responsibility. Even between barristers and year and no other officer more than £300 a year; and (4) that, for the solicitors it is often impossible, during the course of a trial, to adjust the future, when vacancies occur, a clerk of assize and two officers, with a refreshers, which are frequently left to be dealt with in accordance with bailiff at £100 a year, would be sufficient for each circuit for all
purposes, including the duty of swearing witnesses, which is clearly “ analogous" questions of implied authority being left, after a considerable lapse of
usage and good faith. It seeins difficult to exaggerate the objections to to the other duties. They also suggest better arrangements for the se- time, to be decided by the recollection of the parties interested as to what curity and custody of records, indictments, and other documents from took place when their minds were chiefly occupied with more exciting and each circuit. The committee have not come to any conclusion as to whether it would be a better arrangement to amalgamate the staff of consultations held, the witnesses to be subpoenaed, and a variety of other
more interesting matters. The fees marked on the brief, the number of the circuit officers with the Central Office. They suggest an inquiry as to the items of expenditure are left to the discretion of the solicitor, subject to the various assize towns, such as district registrars of the High Court and been rightly exercised, and it is difficult to understand why an inflexible of the Probate Division. This matter formed no part of the reference to rule should be applied to refreshers, the amount of which must often the committee, but it appeared to them that a change in this direction vary through circumstances which could not have been foreseen. Such & might be productive of efficiency and economy.
discussion as that which arose in the case of Re Harrison cannot be otherwise than distasteful both to the bar and solicitors, and the council felt that it
was a subject in which united action should be taken by the Bar CommitThe Royal Assent was given on Tuesday last to the Quarry (Fencing) the council, and a joint letter was addressed to the Lord Chancellor ea
tee and themselves. The Bar Committee concurred in the view taken by and Criminal Law and Procedure (Ireland) Bills, and to a large number the subject for submission to the Rule Committee of Judges, which led of local and provisional order Bills.
to a rule being passed to meet the difficulty.
Delays in the Taxation of Costs in the Chancery and Queen's Bench Divisions. same month the committee presented to the council & report on some =The attention of the council having been called to the delays in the matters of a pressing nature, the most important of these being the pretaxation of costs in the Chancery and Queen's Bench Divisions of the cautions necessary to be taken in the society's building to prevent a fire High Court of Justice, they, in conjunction with members of the society breaking out, which subject had been previously brought before the having great practical knowlege of the subject, have carefully considered council by the secretary. The committee suggested that they should be the evils complained of. They find that in the Chancery Division there is authorized to spend a sum not exceeding £100 for the purpose of providing no reasonable ground of complaint, except with regard to some masters' extinction buckets and hose, to be placed in convenient parts of the offices. In all the other offices appointments can readily be obtained, and building, in accordance with the advice of Mr. Swanton, Superintendent the taxation of costs proceeds with reasonable speed. It appears that the of the London Salvage Corps. The council having given the authority existing arrangements are in themselves well conceived, and are not the suggested by the committee, the appliances specified above have been cause of the block which exists. It is, however, the fact that the business since placed in all parts of the building, including the library. Two of gets much in arrear in some offices, and in consequence the complaints of the suggestions contained in the report of the committee were: That the the profession are loud and well founded. It is obvious that inasmuch students or subscribers to the library should occupy the north wing of the as most of the masters are able to get their work done, there must be library only, and that the south wing should be made more comfortable something defective in the offices of those masters who fail to do so. The for the use of the members by the purchase of additional furniture, council do not consider that it is necessary that the number of taxing rearrangement of the existing furniture, and laying down Turkey carpets. masters in the Chancery Division should be increased, as if all the These recommendations were referred back to the committee by the masters discharged their duties with reasonable despatch there would be council, to be considered in connection with a memorial on the same
The council, therefore, suggest that inquiry should be made subject, which had been presented by 50 members of the society. On the as to the position of the taxations in the offices of several masters, 7th of December, 1886, an interview took place between the committee and that directions should be given that the arrears should be and a deputation of four of the memorialists, when the president of the disposed of, and that in future the work should be required council informed the deputation that most of the suggestions contained in to be kept down to within reasonable limits. In the meantime, to re the memorial had been considered and dealt with by the council before lieve the prosent block, an arrangement should be made for transferring the receipt of the memorial. The following are the chief alterations and to the other masters a certain proportion of the bills now awaiting taxa- improvements in the library, which have been either already carried out tion in the offices that are in arrears, and that similar transfers should, or will be completed in the course of a few weeks :when necessary, be resorted to and carried out by a quorum of three of 1. The students will be admitted to the north wing only, the the senior masters, or that, in the alternative, some alteration should be middle of the library and the south wing being reserved for the use of made in the mode of assigning the taxations, until the work in the several members. offices should be equalized. The council also suggest that the objections 2. The arrangement in the south wing is to be altered by substituting to the master's taxation shonld be adjourned to the judge in chambers, small tables for the two large tables which were there formerly, by who should be attended by the master, to wbom the judge should give di- covering the floor with Turkey carpet, and by placing in the wing three rections as to the mode in which objections should be dealt with. That large oak bookcases, in one of which will be placed the most valuable of all the masters ought to be required to be in attendance every day from the books, known as the Mendham collection, all of which were formerly ten till four, and that a master in the Chancery Division should take daily, in the examination hall. The council will avail themselves of the without formal appointments, all taxations in small matters; and that, in increased accommodation to buy many new books in the different departgiving appointments to proceed with taxation, the morning from ten to one ments of literature in which the library is at present weak. o'clock should be devoted to taxation of bills in small matters, taking up 3. A room has been made for the librarian, who is engaged on the combut little time; and that the afternoon, from two to four, should be giver pilation of a new catalogue of the books in the library. It is expected up to long appointments ; and that queries upon bills should be disposed that this catalogue will be completed in about twelve months' time. of any day during such time as the master or his clerk are not actually Matlers relating to Solicitors.-During the past year 21 solicitors have at engaged with parties before them. It was also suggested that in view of the instance of the society been struck off the roll, and two have been the arrears of bills which at the commencement of the Long Vacation suspended. Other cases are now pending. The council have during the remain undisposed of, each master should, before closing his office for the same period obtained convictions against unqualified persons in 18 cases Long Vacation, report to the Lord Chancellor that all the bills left in his under the 12th section of the Solicitors Act of 1874 (37 & 38 Vict. c. 8), and office had been taxed and disposed of, or should append a schedule of fines have been inflicted in all cases. In some cases the defendants have not those bills which had not been taxed, and giving the reason why they had paid, and they have in consequence been committed to prison for various not been dealt with. With regard to taxations in the Queen's Bench terms. Division, there is no delay in getting short bills taxed either in term or in the Long Vacation ; but, owing mainly to the system of allotting the taxation to the particular master to whom the action has been referred, and who has consequently to deal with all applications in the action, there is delay in getting long bills taxed. During the Long Vacation there is only one taxing master sitting, whose time is fully occupied in dealing
LAW STUDENTS' JOURNAL. with short taxations, and it is therefore impossible to get long bills taxed.
INCORPORATED LAW SOCIETY. The council suggest that the best course to adopt would be to assign three
HONOURS EXAMINATION. masters to each division (one each for cases from A to F, from G to N, and from 0 to 2), and that they should attend in the same division every
June, 1887. sitting during the year. Further, that the masters should be required to At the examination for honours of candidates for admission on the attend at the opeving of the offices at ten o'clock, and stay till four roll of solicitors of the Supreme Court, the examination committee recomo'clock, and that there should be three masters in daily attendance during mended the following gentlemen as being entitled to honorary distincthe whole of the Long Vacation. The taxation of costs by one particular tion :master to whom the action has been assigned should be abolished, sub
FIRST CLAss. ject, however, to power being given in special cases where the sitting
[In order of Merit.] master may think it necessary to refer to the particular master to whom John Leonard Walker, who served his clerkship with Messrs. Gibson, the action has been assigned any question that may arise upon the taxa- Pybus, & Pybus, of Newcastle-on-Tyne. tion of the costs. The council do not think any increase in the number of Richard Frederick Baker Gabb, who served his clerkship with Messrs. taxing masters either in the Chancery or Common Law Divisions neces. Gabb & Walford, of Abergavenny. sary, but they recommend that, in order to relieve the masters from all John White, who served his clerkship with Mr. John White, of the firm mere routine business, such as is involved in the length of documents, of Messrs. White & Co., of London, lists of attendances, and the adjustment of fixed scale charges in party Henry William Michelmore, who served his clerkship with Messrs. and party costs, this vouching shall be done by the master's principal Battishill & Houlditch, of Exeter; and Messrs. Ford, Lloyd, Bartlett, & clerk in the presence of the parties, who should have liberty to resort to Michelmore, of London.
Arthur Henry Emanuel, who served his clerkship with Mr. Joe clerk had done, and when discussing the principle of the propriety of any Emanuel, of London. allowance or disallowance. With regard to the Common Law Divisions,
Second Class. the council recommend that an additional clerk should be allowed in each
[In Alphabetical Order.] division to assist the master in going through small bills, such as costs in Sydney Cartwright, who served his clerkship with Mr. Alfred Dickey judgments under order 14, costs on the discontinuance of an action, or on Faulkner, of London. the acceptance of money paid into court before notice of trial, and costs John Herbert Dennis, who served his clerkship with Mr. Robert Cressof appeal to the judge.
well Burrows, of the firm of Messrs. Ellison & Burrows, of Cambridge. Library.—On the 18th of December, 1885, the council requested the Lawrence Long Maudesley, who served his clerkship with Mr. Samue Library Committee to consider and report on the library. The committee's Wiggins, of the firm of Messrs. R. Miller, Wiggins, & Naylor, of report was laid before the council on the 28th of May, 1886, and adopted; London,
John Nichols, who served his clerkship with Mr. Charles John Collins the general improvement of the library into effect. One of the sugges- Prichard, of the firm of Messrs. Fussell, Prichard, Henderson, & Wall, of tions was that it would be desirable to have a report on the library from Bristol ; 'and Messrs. Clarke, Woodcock, & Ryland, of London.
Ernest Wilson Pierce, who served his clerkship with Mr. Thos. Martin, consulted Mr. H. R. Tedder, the librarian of the Athenæum Club, Pail of the firm of Messrs. T. Martin, Webb, & Hine, of Liverpool; and Mr'. Mall, as to the provision made in the library with regard to the various J. H. Lydall, of London. departments of law and literature, and as to the accommodation for the Arthur Ernest Guy Pritchard, who served his clership with Mr. William members and subscribers. Mr. Tedder sent in his report on the library Waldron, of Brierley Hill. to the committee on the 4th of November, 1886, and on the 26th of the John James Rawsthorn, who served his clerkship with Mr. Joseph