Page images
PDF
EPUB

titled. Prima facie, as ROMER, J., remarked, the proving of assets.” Similarly, if the necessities of the case require it the several debts in a lump sum may be right, but where in respect executor is empowered to give notice to quit. Finally, when the of some of the debts the trustee has different rights over against real estate no longer requires to be retained for the purposes of third parties, or where there are different debts covered by administration, he must convey such as remains intact to the different securities, without right of consolidation, the rights heir or devisee, and hand over also the surplus proceeds of any cannot be worked out without a distinction being made.

sale or mortgage.

These extensive powers of the personal representatives make it important to determine with certainty how far they become

immediately exercisable on the death of the owner. In the case DEVOLUTION OF REAL ESTATE UPON AN

where executors have been appointed no difficulty arises. An INTESTACY.

executor derives his title under the will, and his rights and The Land Transfer Act, 1897, deals with two separate matters : powers date from the death of the testator. The law, it has in Part I. it purports to establish a real representative, in Parts been said (Whitehead v. Taylor, 10 A. & E, p. 212) knows no II. and III. it amends the system of registration of title and interval between the testator's death and the vesting of the provides for rendering registration compulsory. The connection right in his representative. He may accordingly do before between these two matters is very slight. The establishment of probate all acts incident to the administration which do not a real representative will facilitate dealings with registered land require the actual production of probate of the will, and such upon the death of the owner, but otherwise the change effected acts will remain good oven though he dies without having taken by Part I. is quite independent of registration, and there would out probate (Williams on Executors, 9th ed., I., 250). Xe canhave been obvious advantages in placing it in a separate statute. not, however, in general bring an action because in the course of More attention could have been given then to the details of the proceedings the probate will have to be produced. With an what constitutes the most important alteration in real property the letters of administration, and the property of the deceased

He derives his title wholly from law of recent years. The plan which has been adopted of extending personal representation to cover real representation, vests in him only from the time of the grant (Woolley v. Clark, and boldly giving to the personal representative in respect of

5 B. & A., p. 745). Consequently there is no rule of law to real estate all the powers he has with regard to personal estate, assist the operation of the provision of the Land Transfer Act pleases by its simplicity, but in practice it will probably be vesting the real estate in the administrator upon the death of the found that the diversities between personal and real estate raise intestate by carrying back the administrator's title from the date nume 'ous points of difficulty.

of his appointment to the death. One of these, to which attention has already been called by

A similar question arose on the provision of section 30 of the various writers, relates to the vesting of the real estate of an Conveyancing Act, 1881, vesting trust and mortgage estates in iatestate in the interval between his death and the grant of the personal representatives of a sole trustee or mortgagee. letters of administration. Section 1 of the Act provides, in “Where," it is provided, “an estate or interest of inheritance, sub-section 1, that “where real estate is vested in any person or limited to the heir as special occupant, in any tenements or without a right in any other person to take by survivorship, it hereditaments, corporeal or incorporeal, is vested on any trust shall, on his death, notwithstanding any testamentary dis- or by way of mortgage in any person solely, the same shall, on position, devolve to and become vested in his personal repre- his death, notwithstanding any testamentary disposition, devolve sentatives or representative from time to time as if it were a to and become vested in his personal representatives or reprechattel real vesting in them or him.” Section 2 provides for sentative from time to time in like manner as if the same were the administration of real estate in the same manner as personal a chattel real vesting in them or him.". Under this provision it estate, and it gives to the personal representatives in respect of seems to have been assumed by Fry, J., in Re Pilling': Trusts real estate the powers, rights, duties, and liabilities of personal (26 Ch. D. 432), that, in the absence of an administrator of a representatives in respect of real estate ”; save, however, that deceased sole trustee, the estate would vest in the heir-at-law, and one of several joint personal representatives may not, without upon the appointment of new trustees an order was made for the authority of the court, sell or transfer real estate, vesting in them certain lands forming part of the trust estate and save, also, that the Act is not to "alter or affect “ for the estate therein now vested in the heir-at-law of the the order in which real and personal effects respectively are now

deceased intestate trustee." Subsequently administration applicable in or towards the payment of funeral and testamentary was taken out to the deceased trustee's estate, and the expenses, debts, or legacies, or the liability of real estate to be question was raised whether the legal estate in the real charged with the payment of legacies." Subject to the powers, estate did not thereupon vest in his administratrix notwithrights, duties, and liabilities thus specified, the personal re- standing the vesting order. Pearson, J.,

PEARSON, J., for the purpose of presentatives hold the real estate as trustees for the persons by securing the trust estate, seems to have assumed that it did, and jaw beneficially entitled thereto, and at the end of a year such he made a new order that, notwithstarding the previous order, beneficiaries can invoke the assistance of the court to compel a the land should vest in the new trustees for all the estate conveyance to them. If there is no reason for keeping open therein vested in the legal personal representative. Thus under the administration beyond that time it may be assumed that a one order or the other the legal estate was clearly vested in the conveyance will be directed.

trustees. But upon the question where the legal estate had boon The general offect of these provisions is sufficiently clear. in the interval before the grant of administration, Pearson, J., It is rendered impossible for a testator to interfere by his gave no decision. “The question is," he said, "what happens will with the devolution of the legal interest in his real when there is no personal representative ? If the legal estate does ostate.

That necessarily passes to his personal repre- not vest in the heir, where is it? On the other hand, the sentatives.

In their hands it becomes subject to whatever wording of the section seems to ovince an intention to exclude liabilities can now be enforced against real estate, and for the the heir.” In subsequent cases the difficulty has been got over purpose of satisfying such liabilities they have power either to by vesting the trust estate in the new trustees for the estate sell or to mortgage it. In the interval, while it remains under which was vested in the deceased trustee at the time of his their control they are responsible for the management, and must death: Re Rackstraw's Trusts (33 W. R. 559), Re Williams" receive the rents. If necessity arises they can let the property, Trusts (36 Ch. D. 231). but this power will bave to be exercised cautiously. In Oceanic As we have already stated, the question has already been Steam Navigation Co. v. Sutherbury (16 C. D., at p. 243), JESSEL, discussed in relation to the Land Transfer Act by several M.R., speaking of an underlease by an executor of leasehold writers. In a note contained in the addenda to the last edition property, said: “It is quite true that, having the legal estate of Woodfall's Landlord and Tenant (p. lxxv.) the view is taken in the leaseholds, he may in some cases underlet them, and the that the heir-at-law stands in the shoes of the deceased landlord underlease will be supported in equity as well as in law. But for all such purposes as distraining, granting leases, and that is an exceptional mode of dealing with the assets, and those determining tenancies until the administrator has acquired a who accept a title in that way must take it subject to the title. This is the view which, in Re Pilling's Trusts, presented question whether it was the best way of administering the itself as the most natural one, the estate devolving according to

oase.

no

the ordinary law until there was an administrator in whose This book has for some years been considered a standard work favour the new statutory rule could operate. On the other hand on the liquor licensing laws, and has been in the hands of most it is pointed out by Mr. ROBBINS (Devolution of Real Estate, lawyers interested in this branch of practice. The fact that it has p. 19) that, even if the legal estate doos vest in the heir ponding since the eleventh edition appeared, shows the popularity of the

now reached a twelfth edition, and that only two years has elapsed the grant of letters of administration, no purchaser, mortgagee, work; and the recent important and far-reaching decisions make a or lessee could safely take from him a conveyance or lease, since

new edition of “Paterson ” especially welcome at the present time. the estate of the heir would be determinable on the appointment Although we have never admired the arrangement of the book, of an administrator.

which in form is merely an annotated copy of the Acts of 1872 and Mr. TYSSEN, in his Real Representative Law (p. 19) adopts 1874, still it is a singularly complete work and contains everything the view, which PEARSON, J., referred to as the apparent inten- that can be expected in a book of its class. The reputation gained tion of the Legislature, that all right of the hoir-at-law, qua by it in years past will suffer in no particular at the hands heir, is excluded pending the grant of administration, and for of the present editor, who has given the profession a book want of anyone in whom the legal estate can rest it must of the decision of the House of Lords in Boulter v. The Justices of Kent

The consequences perforce remain in aboyance ; unless, indeed, it is vested like (46 W. R. 114; 1897, A. C. 569), as far as they have been recognized the intestato's personalty in the judges of the High Court up to now, are noted in their proper places. It is quite certain, Formerly, as Mr. TYSSEN observes, the personal estate of a however, that the full consequences of this famous decision have yet deceased intestate vested in the ordinary, pending the grant of to be revealed, and that for some years frequent references to the administration. For the ordinary the Court of Probate Aot, case will have to be made. The editor has evidently been fully alive 1858, by section 19, substituted the judge of the Court of to this, and has well consulted the convenience of his readers by Probate ; and under the Judicature Acts it seems probable that including in the appendix a full report of the judgments in the for the judge of the Court of Probate ara substituted all the judges of the High Court. For practical purposes, of course, the result would be the same as if the freehold were in abey- LICENSING PRACTICE (RETAIL SALES). PROCEDURE AND EVIDENCE ance, and this seems to be the effect of the new law. The Land

IN APPLICATIONS AND PROSECUTIONS UNDER THE INTOXICATING Transfer Act, it is to be noticed, expressly says that

LIQUOR LICENSING ACTS (ENGLAND AND WALES). WITH the real estate vests on the death of the owner in his

STATUTES AND FORMS. By O. F. CHRISTIE, Barrister-at-Law.

Grant Richards. personal representative, and the fact that there is personal representative ready to receive it does not seem to

The author of this work quotes the saying of Cockburn, C.J., revive in the heir a right which is thus emphatically jumbles he had ever met with,” and he sets himself the task of

that the Licensing Act, 1872, was one of the most extraordinary taken away from him. It would seem then that, pending the unravelling the jumble as far as possible. In this difficult task grant of administration, there is no one who can legally deal he has achieved success to a considerable extent, and has produced with the real estate, though, of course, if the solvency of the a useful and carefully written treatise on the liquor laws. The intestate is above suspicion it will be safe to pay rent to the heir. style of the book is distinctly good, and the subject is probably Such payment, however, would be no discharge to the tenant if made as clear as it is capable of being made. The book is, the circumstances of the estate made it necessary for an however, in our opinion, rather too condensed in some parts, administrator subsequently appointed to call for the money over and its practical value, moreover, is to some extent lessened by again. The practical conclusion is that administration should be the entire omission of many minor matters, which probably the taken out as speedily as possible. Under section 1 (3) of the which are closely connected with his subject. For example, the

author would argue are outside the scope of his work, but Act it can be granted in respect of real estate only, although book is silent concerning the provisions of the Revenue Act, 1885, there is no personal estate; and under section 2 (4) the court in as to the adulteration of beer, the Act of 1883, prohibiting the granting administration must have regard to the rights of persons payment of wages in public-houses, and the law forbidding publicans interested in the real estate, The heir has it in his power, to deal in game. In the excellent chapter on certiorari the author therefore, to protect himself,

does not hesitate to indicate that in his opinion the correctness of the decision in Reg. v. Sharman (1898, 1 Q. B. 578) is still open to question. In that case, it will be remembered, the court held that,

as a consequence of Boulter's case, certiorari no longer lies to licensing REVIEWS.

justices, and we may point out that in Reg. v. Bowman (1898,

1 Q. B. 663) Wills, J., also intimated that he was not quite satisfied THE LOCAL GOVERNMENT ACT.

that the decision was right. The book is, on the whole, & useful THE LOCAL GOVERNMENT ACT, 1888, WITH THE INCORPORATED addition to the literature on this subject, and in the appendix there PROVISIONS OF THE MUNICIPAL CORPORATIONS Act, 1882, AND

will be found some valuable forms of notices of applications for OTHER ACTS, AND THE WHOLE OF THE STATUTES, RULES, AND

licences and notices of appeal. ORDERS PASSED AND ISSUED SINCE 1888 RELATING TO THE POWERS AND DUTIES OF COUNTY COUNCILS. WITH NOTES AND INDEX. THIRD EDITON. By ALEXANDER MACMORRAN, M.A., A GUIDE TO THE LAW OF LICENSING, 80 FAR AS IT AFFECTS THE Q.C., and T. R. COLQUHOUN DILL, B.A., Barrister-at-Law. Shaw SALE BY RETAIL OF INTOXICATING LIQUORS IN ENGLAND AND & Sons; Butterworth & Co.

WALES. WITH AN APPENDIX OF STATUTES AND FORMS OF A third editiou of this book, the first edition of which, we believe,

LICENCES. By B. STEPHEN FOSTER, Barrister-at-Law. Waterlow was only published in 1894, is a sufficient testimony to its merits.

& Sons (Limited). We described it when it first appeared as an admirable example of a As the author of this work points out, the complicated state of the text-book, and we see no reason to alter our verdict with regard to law of licensing is due mainly to the great number of amendments the present edition. The notes appended to the different sections are and additions which have been imposed upon the earlier Acts by clear, accurate, and concise, and one advantage of the book is that later legislation. The object he therefore aims at is to lessen the difficulties and questions arising, although not yet covered by any trouble of referring to a large number of Acts by grouping together decision, are pointed out and discussed. By means of careful cross- under appropriate headings those sections in the various statutes references the reader is directed to all the statutory provisions which relate to a particular subject, setting out the text of those relating to the matter in hand, and a good index renders the contents sections verbatim and adding notes and references to decided of the work easily accessible. We could not desire a more convenient cases. This plan has undoubtedly great advantages, and the or complete book on the subject.

author has carried it out most successfully, and has given lawyers a book in which it is possible to find what is wanted with the

minimum of trouble. As, however, to carry out such a plan THE LICENSING ACTS.

completely, a section of an Act might have to be repeated in some

cases under several distinct headings, all the important statutos are THE LICENSING ACTS, BEING THE ACTS OF 1872 AND 1874, TOGETHER set out in full in the Appendix. The notes give the effect of reported

WITH ALL THE ALEHOUSE, BEERHOUSE, REFRESHMENT House, decisions accurately and clearly, and very few omissions can be found WINE AND BEERHOUSE, INLAND REVENUE, AND SUNDAY CLOSING of cases of real importance or of statutory provisions which in any ACTS RELATING THERETO, WITH INTRODUCTION, NOTES, FORMS, way relate to the subject. The important recent cases dowa to a AND INDEX. By the late JAMES PATERSON, M.A., Barrister-at- very recent date are all carefully noted. In short, the author has Law. TWELFTH EDITION. By WILLIAM MACKENZIE, M.A., done his work well, and we believe the profession will find the book Barrister-at-Law. Shaw & Sons; Butterworth & Co.

useful and reliable.

OF

ОР

HANDBOOK ON THE LICENSING ACTS AND THEIR ADMINISTRATION.

By ALFRED T. DAVIES, Solicitor and Notary Public, Cursitor of the
County Palatine of Lancaster.

CASES OF THE WEEK.
THIRD EDITION. Macmillan &
Co. (Limited).

Before the. Vacation Judge.
This little book aims at presenting in a concise form a handy guide

TAYLOR ^. THE CAMBRIDGE GAZETTE CO. (LIM.) AND KILNER. to the law regulating the sale of intoxicating liquor. It is apparently

12th Oct, intended, not so much for the use of the legal profession, as to enable intelligent persons connected with “ the trade” to inform themselves as MORTGAGE-REDEMPTION — GOODWILL NEWSPAPER--OBLIGATIONS to the law on any ordinary matter that may occur. It has now reached a MORTGAGEE AFTER REDEMPTION-SOLICITATION OF CUSTOMERS—ALLEGED third edition, and therefore no doubt satisfies a demand.

This is by ATTEMPTS TO INDUCE SERVANTS TO BREAK CONTRACTS. no means surprising, as the book contains a large amount of general information under headings in alphabetical order, clear and practical the defendants might be restrained from soliciting in any way, or

This was a motion on behalf of the plaintiff William Farrow Taylor that directions to persons desiring the grant, renewal, or transfer of licences, endeavouring in any way to obtain, the custom or goodwill of the paper some useful forms not to be found in more pretentious works, and called the Cambridge Daily News, or the custom or goodwill of the business a table of offences. It is evidently the work of a practical man with of printers, newspaper proprietors, and publishers carried on by the a sound knowledge of the subject.

plaintiff at the Cambridge Daily News office, Cambridge, or from attempting in any way, either directly or indirectly, to take away any portion of the plaintiff's business or goodwill ; from representing or making statements

to the customers of the plaintiff so as to deceive, or calculated to deceive, the A PRACTICAL GUIDE TO THE LIQUOR LICENSING ACTS. By W. HUGH customers, and induce them to believe that the new business, now or about to

JONES, Barrister-at-Law. Effingham Wilson ; Cardiff : Roberts be carried on, was formerly the plaintiff's business or is a continuation of the Brothers.

plaintiff's business ; from inducing the plaintiff's employees or servants to

break their engagements with the plaintiff, or leave the plaintiff's employThis is a small book consisting of only about 100 pages, but for its ment or service for the purpose of being employed in the new business. size it contains an extraordinary amount of information on the law of From the affidavits it appeared that the plaintiff was the proprietor of the licensing: If this branch of the law formed one of the subjects for Cambridge Daily News, the paper having been started by him in 1888. In the Solicitors' Final Examination it would be an ideal book for the 1897 the defendant Kilner and others, as executors of one John Kilner, student, for it is clear, accurate, and well-written. The author is to commenced an action against the present plaintiff in which a declaration be congratulated on the ability with which he has compiled an was made that they were possessed of the business of the newspaper as excellent summary of a difficult subject, which, as he says, * affords mortgagees, and by a later order it was ordered, with the consent of all perhaps one of the very best examples of tessellated legislation." In parties, in effect that upon payment by the plaintiff into court of £9,200 practice, however, something more than a summary is required, and and about the 28th of June, 1898, retook possession of the premises. The it is constantly necessary to refer to the very words of the numerous plaintiff alleged that he subsequently discovered that one John Smart, statutes governing this important subject. Such words are, of course, while acting as his manager and editor, at the instigation of the defendant not to be found in a book of this size, and therefore it cannot Kilner, who contemplated starting a rival paper at Cambridge, had aim at entering the lists as a competitor with larger well-known endeavoured to induce the staff to leave his employ and to join the staff text-books. At the same time, as far as it goes, the book is reliable, of the defendant Kilner. In their affidavits, however, Smart and Kilner and will be acceptable to many. It also contains in the appendix entirely denied this allegation. It was further alleged by the plaintiff some useful forms not easily to be found elsewhere.

that in consequence of representations made by Smart that the defendant Kilner had authorized him to engage several of the plaintiff's employees at higher wages such employees had given notice and left his service.

It was further alleged with regard to one Robert Cleaver, who was also BOOKS RECEIVED.

employed by the plaintiff, that Smart told him that if he would leave the The Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), comprising plaintiff's employment without giving notice the defendant Kilner the History of the Act and its Full Text, with Explanatory Notes, would hold him harmless against any action for damages. The plaintiff By CHARLES BRONTE MORGAN, Barrister-at-Law. Effinghan Wilson. named Sophia George and informed her that a new daily paper was about

further complained that Smart's son had called upon a newsagent A Treatise on the Law and Practice relating to Letters Patent for to be started in Cambridge in connection with Cambridge Daily News and Invention, with an Appendix of Statutes, International Convention asked if she would sell it. She had for ten years been an agent for the Rules, Forms and Precedents, Orders, &c. By ROBERT FROST, sale of the Cambridge Daily News. Mrs. George's allegations were, however, B.Sc. (Lond.), Barrister-at-Law. Second Edition. Stevens &

entirely denied. The Cambridge Gazette Co. (Limited) was registered on Haynes.

the 8th of September, 1898, and the plaintiff further alleged that on or

about the 12th of September, 1898, it came to his knowledge that the A Calendar of the Inner Temple Records. Edited by F. A. defendant company, through their directors or agents the defendant INDERWICK, Q.C., Treasurer of the Hon. Society of the Inner Kilner and the said Smart and others, were soliciting his customers and Temple. Vol. II. : James I. (1603)-Restoration (1660). Stevens & agents to transfer their custom to the defendant company and the Haynes ; Stevens & Sons.

proposed newspaper, the Cambridge Gazette. He also alleged that he had

heard that the defendants, their servants or agents, had represented to Accidents to Workmen : being a Treatise on the Employers' Liability Mrs. George that the Gazette was his newspaper and was to be issued Act, 1880, Lord Campbell's Act, the Workmen's Compensation Act, from his office. In the affidavits filed on behalf of the defendants all these 1897, and matters relating thereto. By R. M. MINTON-SENHOUSE, particularly endeavoured to make it known that the plaintiff had nothing Barrister-at-Law, and G. F. EMERY, LL.M., Barrister-at-Law. to do with the defendant company. Upon behalf of the plaintiff it was Effingham Wilson.

submitted that where a mortgage had been redeemed and the mortgaged The People's Progress, in the Light of Concrete Revealings of the property was a business, the obligations of the mortgagee to the mortgagor Mind. By the Rev. W. G. DAVIES, B.D. Elliot Stock.

are at least the same as those of the vendor of the goudwill of the

business. The mortgagee must not destroy that which he held as Redress by Arbitration : a Digest of the Law relating to Arbitrations mortgagee.

The defendant Kilner and his co-executors and Awards, incorporating the Arbitration Act of 1889 and the trustees for the plaintiff. It was true that the defendants had a Decisions of the Courts thereon. By H. FOULKS LYNCH, Solicitor. to seduce away Smart, the plaintiff's editor and manager, and

rival

newspaper, but they had right THIRD EDITION. Revised by D. F. DE L'HOSTE RANKING, M.A., nine others of his employees. Smart was acting for Kilner, and no LL.D. Effingham Wilson.

doubt a part of the scheme was to induce the plaintiff's staff to leave the The Maritime Codes of Holland and Belgium. Translated and plaintiff's service. The defendant Kilner had no right to use the knowAnnotated by F. W. RAIKES, LL.D., Q.C., Judge of County Courts. ledge he had gained as mortgagee as to the value of the services of the Effingham Wilson.

plaintiff's servants, and the defendant company ought not to have used

the secrets its directors had obtained. Kinnard v. I'rollope (37 W. R. 234; Documents and Correspondence relating to the Judicial Crisis in 39 Ch. D. 636) and Trego v. Hunt (44 W. R. 225; 1896, A. C. 7) were the South African Republic ('Transvaal). Translated by J. G. Kotze. referred to. Upon behalf of the defendant company it was submitted that William Clowes & Sons (Limited).

there was no evidence against it; and Robb v. Green (1895, 2 Q. B. 315; 43 W. R. Dig. 49) was cited. For the defendant Kilner it was submitted that there was no evidence against him of having solicited the plaintiff's customers to leave him. If any such solicitation had in fact taken place

(which was denied) it was not authorized by him. As to the charge of It is announced that Mr. J. F. Oswald, Q.C., M.P. for Oldham, has instigating Smart to induce the plaintiff's servants to leave his employment intimated to the Conservative executive that he will not seek re-election in breach of their engagements with him, Kilner in his affidavit denied on the dissolution of Parliament. Mr. Ascroft, M.P., the senior member that he did any such thing, and Smart said that no suggestion had been of the borough, in making the announcement, says that Mr. Oswald, made to any one to break his contract with the plaintiff and no indemnity whose condition some time ago caused great anxiety, has benefited greatly offered by anyone. In reply it was submitted upon behalf of the plaintiff by his stay in Yorkshire.

that upon the evidence the attempts alleged had been made out, and that

were

[ocr errors]

no

owner

as

same

the plaintiff was therefore entitled to the injunction asked for. Exchange thereto on the east side thereof, that is to say: To execute such of the Telegraph Co. v. Gregory (1896, i Q. B. 147; 44 W. R. Dig. 44) was works to the party structure as may on survey be found necessary or referred to.

desirable-namely, To make good, underpin, or repair the same where CHANNELL, J.-I do not think that any case has been made out which defective or out of repair; to pull down and rebuild the same wholly or in will justify me in granting an injunction. I do not refuse the injunction part, if (1) so far defective or out of repair as to make such operation upon the ground that a mortgagee after reconveyance would not be under necessary or desirable for the intended new building ; (2) not conformable the same obligations as a vendor. It is not necessary to decide hat point.

with the regulations of the said Act; (3) of sufficient strength for the The obligation which a vendor is under is that he may not, although he intended new building. To raise or underpin the same or any external · may set up a rival business, solicit the customers of the old firm to leave wall built against the same as may be necessary or desirable for the

the old firm and to come to him. It depends upon the nature of the intended new building. To cut into the same for any lawful purpose. business whether the request to deal with him would be a request to leave To cut away any footings, jambs, flues, or other projections, as may be the old business. Where the business is that of a newspaper proprietor, necessary in order to erect the intended new building To cut or it appears to me that a request by the vendor to a person to buy his take down such parts of any wall or building of the adjoining

may be necessary

in newspaper is not a request to leave off buying the old newspaper. In the

consequence of the present case I do not find a breach of any obligation which Kilner would overhanging the ground of the building owner in order to erect the be under if he had sold the newspaper to the plaintiff. An instance relied intended new building: To perform any other necessary works incident on by the plaintiff is that of Mrs. George. It is said that Smart, jun., to the connection of the said party structure with the premises adjoining endeavoured to persuade her to sell the new newspaper, and told her a

thereto." It was submitted that the notice was bad under the London falsehood by falsely stating it was to be started in connection with the Building Act, 1894. It did not say what the defendants proposed to do. Cambridge Daily News. I do not think that the plaintiff's evidence upon The London Building Act, 1894, imposed an obligation upon the building this point is sufficient, and it is contradicted. The next instance owner to give particulars of his proposed scheme. If a notice such as this complained of relates to the plaintiff's employees. Now, it is

were sufficient, and intended by the Legislature, the Act would have part of the common law that a person may not induce another's expressly said that it was to be a notice for all or any of the works servant to break his contract of service. The decision in Allen mentioned in section 88 of the Act. The building owner need not set out v. Flood (46 W. R. 258 ; 1898, A. C. 1),shews that it is not wrong his proposed scheme. Upon behalf of the defendants, an undertaking not

the details of what he proposed to do, but he must disclose the nature of to induce a servant to leave his master's employment, provided that the servant commits no unlawful act in leaving his master's service. to act upon that part of the notice which dealt with raising the wall In the present case the plaintiff's servants committed no breach of without giving the plaintiffs further notice was offered. contract, and therefore the decision in Allen v. Flood is directly in CHANNELL, J.—The first part of the notice seems to me to be quite good, point. The instance of Robert Cleaver, who is alleged to have been but I have some doubt as to whether the part relating to raising the wall requested to break his contract with the plaintiff, is the only shadow of a is good. Upon the defendants undertaking not to act upon that part of case made out upon the plaintiff's behalf. It appears to me that this the notice which deals with raising the wall without giving the plaintiffs might be an attempt upon the part of Smart which would be sufficient to further notice (without prejudice to any question), and to give the plaintiffs justify an injunction against the person so attempting to commit a wrong. inspection of their plans, and to give the plaintiffs a further ten days to But, in my opinion, this one case is not sufficient to justify me in granting appoint a surveyor, there will be no order except that costs be costs in the an injunction against the defendant Kilner. I do not think that there is action.- Counsel, Mulligan, Q.C. (J. Gatey with him); Alexander, Q.O. sufficient evidence that Kilner authorized it in such a way that it can be (4. H. Jessel with him). SOLICITORS, Savery f Stevens ; Emmanuel % imputed to him that he attempted to do an unlawful act. There is no Simmonds. ground for granting an injunction against the Cambridge Gazette in the

(Reported by J. E. ALDOUS, Barrister-at-Law.] absence of any sufficient case against Kilner. As to the allegations with regard to Mrs. George, I think that in all probability there is some mistake on the part of Mrs. George in reference to that matter. It might assist a new newspaper to say that Smart was editor of it, but that would be no

County Courts. wrong thing. The plaintiff would be entitled to say that the Cambridge Gazette was edited by the gentleman who so successfully edited the

JONES v. C. & W. WALKER. Birmingham. 11th Oct. Cambridge Daily News. The costs of the motion will be the defendants' costs in the action.-COUNSEL, Everett, Q.C. (E. Ford with him); Alexander, WORKMEN'S COMPENSATION Act, 1897—Basis on Which Compensation is Q.C. (W. Baker with him); Clauson. SOLICITORS, Stanley Evans & Co., for

PAYABLE. C. P. Jones, Cambridge; Torr, Gribble, Oddie, f Sinclair ; E. Bromley.

This was the first case brought under the above Act in the Birmingham [Reported by J. E. ALDOUS, Barrister-at-Law.]

County Court. It was an arbitration at the instance of an injured work

The undisputed facts were as follow : The applicant was Richard Thomas Jones, described in his application for arbitration as

" blackHOBBS, HART, & CO. (LIM.) v. GROVER AND ROE. 19th Oct.

smith,” employed at the time of accident as a “fitter.” The responLOCAL GOVERNMENT-BUILDING OWNER-PARTY WALL-NOTICE STATING dents were d. & W. Walker, of Donnington, Salop, engineers, who were

NATURE AND Particu LARS OPPROPOSED WORK-LONDON BUILDING engaged in the erection of a gas-holder for the Birmingham Corporation at Act, 1894 (57 & 58 VICT. C. CexIII.), s. 90.

Saltley. Jones, who had been out of work for seven weeks, called several

times at the Saltley Works to ask Monk, the respondents' foreman there, This was a motion on behalf of the plaintiffs, Messrs. Hobbs, Hart, & for employment, stating that he had previously worked as a smith. On Co. (Limited), that the defendants, their agents, servants, workmen, and the last of the occasions, about 7.30 a.m. on the 11th of July, Monk told others employed by them might be restrained from pulling down, cutting, Jones that there was no smiths' shop up as yet, but that he could go and under-pinning, raising, or otherwise injuring or interfering with the help a fitter namned Foxhall who was engaged in fixing guide-rails to party wall between the premises Nos. 75 and 76, Cheapside, in the City of stays for a gas tank. About 10.30 a.m., when Jones had been at work some London, and from appointing any surveyor under section 91, sub-section two and a half hours, Foxhall was bolting the rails at the top and Jones 3, of the London Building Act, 1894, or otherwise until the trial of was holding them in position at the bottom, when a sledge-hammer, in use this action or further order, otherwise than in accordance with the by another workman at work fifty feet above, accidentally broke, and the provisions of the said London Building Act, 1894. In support of the head fell and struck Jones in the back, inflicting severe injuries which had motion it was said that the plaintiffs were the owners of 76, Cheap-caused him total present incapacity to work. When Monk put Jones on side, and the defendant Grover was the building owner of adjoining to work, nothing was said as to rate of wages. In his previous employment premises, 75, Cheapside, the defendant Roe being his surveyor appointed as a smith his weekly earnings had averaged 33s. 6d. per week. He thereunder the London Building Act, 1894. The premises 76, Cheapside were fore claimed the maximum allowance under the Act-viz., half wages at separated from No. 75, Cheapside by a wall which is a party wall within that rate, or 16s. 9d. per week, after the first fortnight. It was admitted the meaning of the London Building Act, 1894. The plaintiff company that the current rate of labourer's wages was 24s. per week, and that the occupied the basement, ground floor, and first floor of the premises No. 76, respondents had tendered compensation accordingly, at the rate of 12s. per Cheapside, as showrooms, warehouses, and offices, and the remaining week, which the applicant had refused, and instituted these proceedings to portion of the building was let to tenants. The building was erected in recover the larger sum. The evidence as to the kind of work Jones was or about the year 1888, and was specially constructed to carry the great doing before the accident occurred was conflicting. For the applicant, weights of the iron safes and strong rooms which were on show there, and reference was made to Schedule I., s. 1 (6) of the Act, which provides that any interference with the party wall between that and the adjoining the amount of compensation payable shall be as follows: " Where total building would have to be carried out with the greatest care and under or partial incapacity for work results from the injury, a weekly payment strict supervision. If the party wall was to be taken down to be rebuilt, during the incapacity after the second week, not exceeding fifty per cent. or seriously interfered with, it might entail the removal of a large portion of his average weekly earnings during the previous twelve months, if he of the plaintiff company's safes and the taking of other temporary has been so long employed ; but if not, then for any less period during pre ses by the company, and in order to make the necessary which he has been in the employment of the same employer, such weekly arrangements for this the company would require at least several payment not to exceed one pound.” It was argued that, though, no doubt, months' notice, otherwise very great loss and inconvenience would the language of the section more properly applied to cases where the work

On the 2nd of September last the plaintiff company received man had been actually employed for more than a week, there was nothing from the defendant Grover the following party-wall notice purporting to preclude an applicant, in a case like the present, where the actual employing to be given under section 90 of the London Building Act, 1894 : ment had existed for less than a week, from claiming compensation computed “Ï, the undersigned, being the building owner of No. 75, Cheapside, in the on his average weekly earnings in a previous and different employment. The county of London, hereby give you notice that upon the expiration of two section said nothing about any contract between employer and employed, months from the date hereof I intend to exercise the rights conferred upon and in a case like this an agreed rate of wages to be paid, whether exthe building owner by section 88 of the above Act in respect of the party pressed or implied, could not be taken as a basis. Moreover, earnings structure separating No. 75, Cheapside from No. 76, Cheapside adjoining meant wages actually received for work done, and not wages agreed to be

man.

accrue.

66

office'

paid but not yet due and payable. Consequently, as the applicant had received no earnings in the respondents' employ, the only possible basis of

NEW ORDERS, &c. assessment was a former rate of earnings, unless the case was a casus omissus, for which the Act gave no remedy-a construction not to be put

TRANSFER OF ACTION. upon the Act except in the last resort. For the respondent it was pointed out that only one scale of compensation was provided by the new Act, and

ORDER OF COURT. it was accordingly small, the Legislature recognizing that a high scale

Monday, the 10th day of October, 1898. applicable equally to accidents caused by an employer's negligence and to unavoidable accidents would be unjust. Consequently no well-advised Britain, do hereby order that the action mentioned in the Schedule hereto

I, Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Great workman who could make out a cause of action under the Employers' shall be transferred to the Honourable Mr. Justice Wright. Liability Actor at common law would proceed under the new Act. Where, therefore, the only remedy was under the new Act,

SOBEDULE. *the workman not unnaturally would endeavour to “magnify his

Mr. Justice STIRLING (1895-H.-No. 3,153). as much as possible. Accordingly in the present case the In re Hunwick & Company, Limited William Berry Kellock v Hunwick applicant claimed to be paid as a skilled mechanic, and not as a mere labourer. There was no reasonable doubt as to the meaning of the

& Company, Limited, and another.

HALSBURY, C. section, which throughout must be read with reference to "the same employer.” If by the contract of service the rate of wages per week had been expressly agreed upon, it could not be said that because a week's wages had not been earned before the accident happened the applicant was entitled to pray in aid a rate of wages earned under a previous

THE RIGHT OF MARITIME CAPTURE. employer. If so, no employer would be safe in giving an odd job to, or

(Continued from p. 821.) in engaging as a handy man a skilled workman out of work and glad to To violate a blockade is an operation attended with all the risks of war. earn anything. Where, as in the present case, nothing is said at the Indeed a blockade runner is in even a worse position than a hostile bellitime of engagement as to rate of wages, the capacity in which the workman was employed must be regarded, and the current rate of wages in gerent, for not being a combatant he may not resist the efforts of the such employment be taken to have been impliedly agreed upon. but a single shot or blow in his own defence makes him a pirate, and a Lastly, "earnings” did not necessarily mean wages earned and paid, but included a rate of wages expressly or impliedly agreed to be paid for work belligerent capturing him may treat him as such. But it must always be to be done. This was supported by the expression “able to earn” in must first have established a real and effective blockade. À mere declara,

remembered that for a belligerent to exercise these high prerogatives he section 2 of the schedule.

tion that the port is closed is not enough. It must be so closely watched His Honour JUDGE WHITEHORNE, in delivering judgment, said : In this and invested with an adequate naval force that no neutral can leave or case, which has been very well argued on both sides, a somewhat important enter without incurring immediate danger of being sunk or captured. I question under the new Workmen's Compensation Act is raised. "I find have already stated what Powers have adopted the terms of the Declara. on the facts that the applicant was engaged as a labourer, and not as a tion of Paris. In 1859 at the Treaty of Zurich the French Government smith; and that he, whilst engaged as a labourer, with no special agree- restored all captured Austrian vessels which had not been condemned by ment as to terms, after two and a half hours' work and before any wages, the prize court. By a decree issued on the 26th of March, 1865, she also or any to speak of–had been earned or paid, met with an accident clearly restored all captured Mexican vessels to their owners. In 1860, during incapacitating him from labour, not entirely, but to a great extent. the Chinese War, both England and France granted immunity to private The liability of the employers under the new Act is admitted, and property at sea. During the war between Italy, Prussia, and Austria, there is no dispute as to the facts of the accident or the injuries private property was respected by all these Powers. Italy has included a sustained. The question, therefore, simply is whether the Act enables clause to the like effect in its maritime code. In 1860 a deputation of the court to give the injured workman any compensation—in other merchants from Bristol, Manchester, Leeds, and other influential towns apwords, whether it furnishes the court with any rule, scale, or criterion | proached Lord Palmerston and requested him to support the suppression of for ascertaining the amount of compensation in circumstances which maritime capture, but, notwithstanding this, and that in established dicta perhaps were not very definitely contemplated when the Act was of his he stated, “There is no other European State which possesses & framed. It is plain enough that what was mainly contemplated was the commerce so extensive as that of England: I conclude, therefore, that it is case of a man who had been earning and receiving weekly wages. Is the to the interests of the English to invite other States to accord to commerce case of a man who has not excluded? Two questions of construction arise the greatest possible freedom,” subsequently, upon a motion being under the First Schedule, section 1 (6) and section 2. First, can you in brought forward in the House, he opposed it. In 1866 the matter was such a case as this look back to some former employment under different again before Parliament upon a motion by Mr. Gregory, which, though masters in which he was earning other wages? Secondly, if you cannot, supported by many members of varied opinions, was rejected. It would can you infer or imply a rate of wages from the terms of the engagement be wearisome to go into details regarding the many other attempts though no wages have been actually earned owing to the accident hap- which have been made at home and abroad to secure the immunity from pening immediately after the engagement? On the first point I hold that capture of private property at sea, or to quote from the mass of authorities you cannot look back to any former employment. That cannot be the who have advocated such immunity, though it is of interest to note in right construction. If it were, the workman would always select a previous passing that Mably was the first to advocate the immunity of private employment at perhaps very high wages, when he was younger and abler, property at sea ("Droit Pablic de l'Europe fondé sur les Traités," 2nd ed., to fix his present employer with compensation which at such a raté 1754, vol. 2, pp. 310, 472), and that as early as 1785 the United States would be unjust, and, I think, not required or warranted by the and Prussia, under the auspices of Franklin and Frederick the Second, words of the schedule. The rate of wages is the rate of wages bound themselves by treaty to respect private property at sea. Nor is it in the employment in which the accident happened. But does that for me to here discuss the general or particular advisability from the prevent the workman from getting any compensation where

no standpoint of any individual nation or mankind at large of securing its rate of wages was specially agreed to, or even to any perceptible total abolition and the absolute freedom from capture of all private degree earned ? I think not. I must bear in mind the pur- property at sea, or of returning to the seizing of enemy's goods on pose of the Act and endeavour to carry it out loyally. The object is to even neutral bottoms, to contrast the conduct of war in this respect give workmen engaged in employments to which the Act applies, com afloat and ashore, or to prove that the existence of this right is pensation in every case where they are injured in the course of the employ- an anomaly, and contrary to the dictates of humanity, I will ment of their masters. Hence I think I ought to hold that the "weekly therefore close the present portion of this paper by the goneral earnings”—to use the term employed in the First Schedule to the Act statement that, apart from privateering, the only legal and moral though not received, nor even to any perceptible degree earned, are the conclusion is that any State which wishes to adhere to the capture of earnings which would, according to the custom of the trade, flow from the private property at sea has every right to do so. Upon occasions engagement. As to that there is no dispute. It is admitted that the privateersmen have rendered yeoman service to the State. Of this current rate of wages of a labourer is 24s. å week, and that, consequently, Fortunatus Wright in the Mediterranean, and George Walker in the weekly compensation-which the respondents have offered to pay, and home waters, are striking examples, and the engagements between the now offer to pay-would under the provisions of the First Schedule, s. 1(6), Tygress and a Dutch 50-gun ship, and the Drawblood and a Dutch be 12s. per week. On that footing I decide this case.

privateer in 1781, to take only two instances in close succession out of very It was stated that the Palatine Insurance Company (Limited), the real many, compare very favourably as to odds and courage and endurance defendants, did not ask for costs. As, however, the great majority of displayed with the performances of any King's-ships. It is interesting for these cases were the subject of insurance, it was desirable that it should be this meeting to consider what constitutes a prize of war and the English known that leniency in the present case must not be taken as a precedent, law bearing upon the subject. A prize or prize of war in the more nor workmen be led thereby to suppose that they can indulge in litigation modern acceptance of the term denotes the ship or goods of an enemy, or under the new Act without any risk of having to pay costs.-SOLICITORS, in transit to an enemy, capt ed at sea, or in the territorial waters of one Parker ; Dr. Showell Rogers.

of the belligerents. Goods captured on land are not prize, but booty of war. The property in the prize vests in the Crown in accordance with the maxim- Parta bello cedunt reipublicae. The right attaches both in cases of

capture and recapture, subject in the latter case to the unsupplied maxim The death is announced of Mr. Ralph Disraeli, brother of the Earl of of Jus postliminii, or, as used in this relation, the right of the owner of Beaconsfield, in his ninetieth year. Lord Lyndhurst gave him, in 1841, property recaptured from the enemy, to have it returned formerly if the the appointment of registrar in the Court of Chancery, which he held recapture had taken place before the property had been taken within the until he was appointed in 1875 deputy clerk of the Parliaments. From enemy's territory (infra praesidia), and at present if less than twenty-four this he retired in 1890, having completed half a century of public ser- hours have elapsed between the capture and recapture. By English law vice,

the right of recapture to salvage on recapture is usually one-eighth of the

« PreviousContinue »