304 APPEAL COURT II. Mr. William Edward Cartwright, of Newcastle-underLyme, has been appointed Secretary and Solicitor to the Before COTTON, L.J., LINDLEY, L.J., and BowEN, L.J. Newcastle-under-Lyme Mutual Building Society, in sucIcession to his partner, the late Mr. Thomas Harding. Mr. Cartwright was admitted in 1874. THURSDAY, MAY 8. Marquess of Northampton v. Pollock (appeal of defendants MONDAY, MAY 12. Barlow & Jones (Lim.) v. Johnson, Son & Co., and in re Trade-mark, numbered 53.015, registered by Barlow & Jones (Lim.) (appeal of defendants from judgment of Chitty, J., dated February 27). In re Barlow & Jones (Lim.) (application to register trade-marks numbered 71,211, 71,212, 71,213, and opposition of Johnson, Son & Co.). In re Barlow & Jones (Lim.) (application to register trade-mark numbered 71,214, and opposition of Johnson, Son & Co. Appeal of Johnson, Son & Co. from orders of Chitty, J., dated February 27).-Part heard. TUESDAY, MAY 13. No sitting. Van Gelder, Apsimon & Co. (Lim.) v. Sowerby Bridge United District Flour Society (Lim.) (appeal of plaintiffs from judgment of Kekewich, J., dated February 1, and previous order, dated January 17).-Cur. adv. vult. Morris v. Bebro (action transferred from Q. B. Division) (appeal of plaintiff from order of Chitty, J., dated March 28, refusing leave to appeal from an order of Q. B. Division as to further affidavits).-Part heard. HONOURS AND APPOINTMENTS. MR. WILLIAM RUSTON (of the firm of Ruston, Clark & Ruston), of 29 Essex Street, Strand, London, and of Brentford, Isleworth, Twickenham, and Ealing, has been appointed by the High Sheriff of Middlesex (Mr. Charles Gostling Murray) to be Under-Sheriff of that county for the ensuing year. Mr. Ruston was admitted in 1870. He is registrar of the Brentford County Court, and clerk to the Ealing and Twickenham Local Boards. His partner, Mr. George Brodie Clark, is clerk to the county magistrates and Commissioners of Taxes at Brentford. Mr. Thomas Henry Field Lapthorn (of the firm of Blake, Reed & Lapthorn), of Portsea, Southsea, and Gosport, has been appointed a Commissioner for Oaths. Lapthorn was admitted in 1883. Mr. Mr. Edward Thomas Rice Wood, of Rhayader, Newtown, and Llanidloes, has been appointed Clerk to the Radnorshire County Council, in succession to the late Mr. William Stephens, of Presteign. Mr. Wood was admitted in 1881. A THE HIGHLAND LAND COURT.-The Highland Land Court issued decisions, on May 14, fixing fair rent on several estates in Mulltha. They have given heavy reductions of rent to the crofters on the estate of Kinloch. The average reduction of rent amounts to 60 per cent. few crofters on Mr. M Laine's estate at Lochbury have had their rents reduced 41 per cent. On the estate of On three other Duart the reduction is over 36 per cent. A smaller estates the average reduction is 40 per cent. number of crofters who are in arrears have had their debts nearly all cancelled. SOLICITORS' BENEVOLENT ASSOCIATION.- The usual monthly meeting of the board of directors of this associa- A THE LAW OF BANKRUPTCY.-A meeting of members of the publishing, bookselling, and stationery trades was held on May 13, in the Hall of the Stationers' Company, Colonel Routledge presiding, to consider the bill introduced into Parliament by Sir A. Rollit and other members to amend the law of bankruptcy. The circular calling the meeting was signed by the following firms: Messrs. George Routledge & Sons (Lim.), Longmans, Green & Co., Macmillan & Co., Frederick Warne & Co., Simpkin, Marshall, Hamilton, Kent & Co. (Lim.), Fourdrinier, Hunt & Co., John Dickinson & Co. (Lim.), Kegan Paul, Trench, Trübner & Co. (Lim.), Thomas Nelson & Sons, Edward Saunders & Son (Lim.), and Herring, Dewick & Hardy. The bill was discussed by the meeting, and while certain clauses were deemed valuable others were regarded as prejudicial to On the motion of the the interests of wholesale traders. chairman, resolutions were passed in effect objecting to the last-mentioned clauses, and forming a committee further to consider them, when another meeting will be held. BIRTH. On May 11, at Richmond House, Boughton, Chester, the residence of her father, the Rev. H. J. Vernon, the wife of D. A. V. Colt-Williams, Barrister-at-Law, of a son. DEATHS. At his residence, 29 Culver Street, Colchester, Philip Smith Sparling, Solicitor, in the 86th year of his age. On May 6, suddenly, William Rhodes Fawcett, of Stainton-in-Cleve land and Stockton-on-Tees, Solicitor, aged 49 years. On May 9, at Saffron Walden, James Gordon Bellingham, Solicitor, On May 10, Ellen Caroline, the wife of C. J. Holdsworth, of 32 Croxtel Road, West Dulwich, and 23 Bush Lane, London, Solicitor, aged 49. If taken with the LAW JOURNAL REPORTS SCALE FOR ADVERTISEMENTS. Four Lines, or 40 Words, in Column.. A Column, or Half a Page across .. £ s. d. 109 TO 116 BANKRUPT LIST NOTES OF CASES . 316 73 TO 76 The Law SATURDAY, MAY 24, 1890. 'OBITER DICTA.' THE Prince of Wales will open the annual flower show of the Royal Horticultural Society which is to be held in the Inner Temple Gardens on Wednesday and Thursday, the 28th and 29th inst. We understand that the date was fixed to suit the convenience of His Royal Highness. It is somewhat unfortunate that the show should be held in Whitsun week, when many members of the legal profession will be away from London, but it has become so deservedly popular of late years that a large attendance of visitors may be considered certain. THE recent decision of the Court of Appeal in the case of Cochrane v. Entwisle constituted an important addition to the series of authorities upon the question of deviations from the statutory form of bills of sale contained in the schedule to the Bills of Sale Act, 1882. The bill of sale, in that case, assigned to the plaintiff, the mortgagee, certain furniture, &c., specifically described in the schedule 'now in and about the premises known as Poultney Lodge Farm, together with all the tenant-right, valuation, goodwill, tillages, and interest of the mortgagor in and to the said farm lands and premises.' The schedule, after specifying the furniture and other personal chattels comprised in the deed, contained the words above-quoted as to the tenant-right, valuation, &c. Mr. Justice Manisty held the bill of sale void as not being in accordance with the statutory form, and the Court of Appeal affirmed the decision, holding that the form in the schedule to the Act contemplated an assignment of personal chattels only, and that, as the bill of sale under consideration dealt with chattels real, it was not in the statutory form, nor had it the same legal effect as that form. In future, therefore, where it is desired to assign real as well as personal chattels by way of security, two deeds will be necessary for the purpose. THE Central Council of Diocesan Conferences has just passed a resolution in favour of further legislation against gambling. Canon Watson moved that this council is of opinion that some legislation is desirable which shall prohibit the recovery of bets by legal process and the publication of betting intelligence, thus removing one of the chief facilities for betting and gambling,' but accepted the more vague amendment that some further legislation is desirable to check the grave evil of betting and gambling, and to hinder as far as possible the publication of betting intelligence.' Legislation directed to the special point decided in Oy Wednesday, the day appointed for the celebration Read v. Anderson, 53 Law J. Rep. Q. B. 532, is, no of the Queen's birthday, the sittings of the Courts doubt, highly desirable. It was there held-but were, with one exception, suspended. The solitary wrongly, as intimated by the Master of the Rolls, and, Occupant of the bench was Sir James Hannen, who sat in Probate Court II. for the purpose of hearing Admiralty actions. We should very much regret to see the time-honoured custom of celebrating the royal birthday by a holiday in the Courts done away with, but it seems a pity, having regard to the congested state of business, that the authorities should not have in Cohen v. Kittell, 58 Law J. Rep. Q. B. 241, by Mr. Justice Manisty-that, where a turf agent is employed to bet in his own name, and the bets, being lost after revocation of an authority to pay them, are paid, the turf agent may recover the amount of the bets so paid from his principal, although the betting contract itself is, of course, void by virtue of 8 & 9 Vict. c. 109, s. 18; and this decision cannot have failed greatly first of this month. The order provides that if a judge to have strengthened the position of turf commission is unable to proceed upon a petition in lunacy under the agents. A short Act to get rid of the effect of it could Act, he may certify such inability, together with the be easily drawn and easily passed. But to prohibit the grounds upon which the certificate is founded,' and send publication of betting intelligence would be going very the certificate and petition to the justices' clerk of the much too far. The advertising by letter, circular, petty sessional division or borough where the lunatic telegram, placard, or handbill' that any person, either is. Such clerk is to transmit the documents to some other in the United Kingdom or elsewhere, 'will, on applica- of the judicial authorities [ie. justices of the peace or tion, give information or advice for the purpose of any magistrates] mentioned in section 9, subsection 1 of the bet or wager' is, it may be observed, expressly made Act, and such other judicial authority,' continues his penal by the Betting Houses Act, 1874 (37 Vict. c. 15), lordship, shall thereupon proceed in the matter as if and sweepstakes were held to come within the Lottery the petition had been presented to him in the first inActs so far back as 1845 in Allport v. Nutt, 1 C. B. 989. stance.' The making of a similar order with reference to stipendiary magistrates is entrusted by section 338, subsection 4 of the Act to a Secretary of State. In re Robson, decided on the 14th inst., and noted this week at p. 75 of the Notes of Cases, is a most important case upon the construction of the Solicitors' Remuneration Order of 1882. The simple point was whether a solicitor who had prepared a lease at a rent of 507., with a premium of 4,400, was entitled to the scale fee on the premium as well as on the rent, and Mr. Justice North, reversing a master's decision that the solicitor was entitled, in respect of the premium, to remuneration according to the old system, held that the scale fee applied. The difference in amount was 421. Mr. Robson, with commendable perseverance in his intention to appeal, had declined to avail himself of the opportunity given him by the master of bringing in a bill of costs to be taxed on the old footing. 6 THE judgments of Mr. Justice Kekewich (1887, 4 P. O. R. 417) and the Court of Appeal (1888, 5 P. O. R. 295) in Morgan v. Windover have been summarily reversed by the House of Lords (1890, 7 P. O. R. 131). We take leave, with great respect, to doubt whether this important and interesting case turned, as both the Lord Chancellor and Lord Herschell declared, entirely upon a question of fact, and we propose to submit a few comments upon it to the judgment of our readers. Stated briefly, the material circumstances are these. Morgan v. Windover was an action for the infringement of a patent for improvements in carriages.' At the date of this patent there were in common use three different arrangements of springs for supporting the body of a four-wheeled carriage. In one of these, the ALL interested in the working of the Summary body was suspended from the upper extremities of four Jurisdiction Acts should carefully study Dixon (app.) v. springs, shaped like the letter C, and the lower ends of Wells (resp.), noted last week in the LAW JOURNAL, the two front springs were secured to a platform or Notes of Cases, p. 71, in which it was held that a sum-framework termed a 'perch,' having a rigid connection mons issued by a justice of the peace who had not with the fore-axle. In another, the body rested directly heard the information upon which it was founded was upon four elliptical springs, two being in rigid conneca 'bad' summons, so that the resulting conviction could tion with each axle. In the third arrangement, the not be sustained. The question depends upon section front of the body rested upon two elliptical springs pre1 of the Summary Jurisdiction Act, 1848, by which, cisely similar in shape and adjustment to those used in the where an information shall be laid before one or more preceding class, whilst the back part rested upon two justices, &c., it shall be lawful for such justice or jus-composite springs, which were for about half their tices to issue his or their summons, &c. The summons length elliptical, and for the other half C-shaped. These had been actually granted by one justice, but had been three arrangements had one and all the same objectsigned by another, so that at first sight the point seems viz. to prevent or mitigate jolting when the carriage to be a highly technical one. But on the whole the was shaken from any cause. It was admitted that the decision appears to be correct, though as it is sustainable C-shaped springs possessed an advantage over the ellipon another ground-that the Sale of Food and Drugs tical in permitting the body of the carriage, when Act, on which the proceedings were taken, was of itself shaken, to sway horizontally as well as vertically. sufficient to vitiate them-and is also to some extent in- Now Mr. Morgan's invention substantially consisted in consistent with the very carefully argued Regina v. the substitution of composite for elliptical springs in Hughes, 48 Law J. Rep. M. C. 156, L. R. 4 Q. B. Div. the fore part of the carriage, so as to make the whole 614, a perjury case, the point will probably again body rest upon four composite springs instead of upon trouble the reporters sooner or later. The stipendiary four elliptical, or upon two elliptical and two composite magistrate, it may be observed, was for acting on the springs, as before. The improvement effected by this maxim, 'boni judicis est ampliare jurisdictionem,' and substitution was useful' within the meaning of the had convicted the appellant subject to a case. patent law, and was also from a commercial point of view successful. But was it good subject-matter for a patent? The view both of Mr. Justice Kekewich and of the Court of Appeal may, without substantial inaccuracy, be paraphrased thus. It is true that in this case the object of the invention and the means of attaining it are well known, but the particular adaptation of those means by the plaintiff was, if not original, at all events not anticipated, and decidedly useful. Practically, therefore, the doctrine laid down by the Court of first instance and by the Court of Appeal comes to this, that THE Lord Chancellor has issued an important order, section 338, subsection 4 of the Lunacy Act, 1890, by which he is empowered to provide by rules for preventing interference or delay in the exercise of the ordinary jurisdiction of the judges of County Courts' which might arise from the exercise of the extraordinary jurisdiction conferred on them by sections 4-9 of the Lunacy Act, 1890, which came into operation on the 6 of the two requisites of a valid patent-grant, novelty done to avoid its being cut down' by someone else and utility, the former may be reduced to a minimum, over whose property it projected, and over whose to a mere negation of anticipation, if the latter is pre- back kitchen its shadows fell, keeping that useful sent in considerable proportions. There is much to be apartment in a perpetual state of Cimmerian darkness.' urged in favour of this contention. Quite a bead-roll So it is stated in the Topical Times of Saturday last, by of cases supports it. The very policy of the patent law, a writer who knows something about that tree, having as its opponents both in England and on the Continent lived for many years within a dozen yards of it.' As to have been careful to point out, logically commits us to the right of someone else' to 'cut down' the tree, see the protection of many inventions whose only novelty Holder v. Coates, M. & M. 112, in which it was ruled is their utility. Moreover, the history of inventions that where a tree grows near the confines of the land of shows that many of the chief patentees in this and two parties, so that the roots extend into the soil of other countries have been not pioneers but reapers, each, the tree is 'in' the owner of the land in which it dexterously gathering where they have not sowed. But was first planted, overruling apparently Waterman v. the House of Lords, reaffirming the decision of Lord Soper, 1 Ld. Raym. 737, which is to the effect that the Westbury in Harwood v. The Great Northern Railway parties are tenants in common of the tree. Company, have set aside the doctrine of the Court of Appeal. The mere adaptation,' said Lord Herschell, to a new purpose of a known material or appliance, if that purpose be analogous to a purpose to which it has already been applied, and if the mode of application be also analogous, so that no inventive faculty is required and no invention is displayed in the manner in which it is applied, is not subject-matter for a patent.' THE PROOF OF CONTINGENT LIABILITIES claim. THE case of In re Dodds, ex parte Pritchard, raised several points of interest and importance with respect to the proof of contingent liabilities in bankruptcy. The liability for which in that case a creditor desired to IN Hobbs v. Hudson (see Times of May 17) the Court prove was an annuity for the term of the creditor's has decided that the statutory action by a landlord for natural life. A proof, in which the value of the annuity double the value of goods fraudulently removed to was estimated from the age of the creditor in accordavoid distress is a penal action, so that the plaintiff ance with recognised tables of mortality, was duly sent cannot administer interrogatories to a defendant assist-in, and received by the trustee without protest. Six ing such fraudulent removal. The words of the statute months later, and before the declaration of any divi11 Geo. II. c. 19, s. 3 are that, if any person shall dend, the annuitant died, whereupon the trustee dewilfully and knowingly aid or assist any tenant' in manded that the amount of the proof should be reduced fraudulently removing goods, &c., all and every person to the amount of the instalments of the annuity due and persons so offending shall forfeit and pay' to the land- and unpaid up to the time of the annuitant's death. lord from whose estate the goods were removed double The executors of the annuitant declined to abate their the value of the goods. The Court was bound by the Were they entitled to a dividend on the full authorities' to hold that interrogatories could not be amount of their proof, or not? administered; and Jones v. Jones, 58 Law J. Rep. The same question arose in 1877, in In re Miller, ex There a Q. B. 178; L. R. 22 Q. B. Div. 425, in which it was parte Wardley, L. R. 6 Chanc. Div. 790. held that the plaintiff in an action under 2 Wm. & M. husband, who had covenanted with the trustees of his sess. 1, c. 5, s. 4, for treble damages for pound-breach marriage settlement to pay the premiums on certain and rescue of chattels distrained for tithe is not entitled policies of assurance on his life, filed his petition. to an affidavit of documents, is no doubt a strong autho- The trustees proved for the estimated value of the covenant. A dividend was declared, but before it rity, and undistinguishable. But in Adams v. Batley, 56 Law J. Rep. Q. B. 393; L. R. 18 Q. B. Div. 625, it reached the trustees the husband died, and it was then was held by the Court of Appeal that a plaintiff in an held that they were not entitled to receive the whole action for infringement of dramatic copyright under dividend, but only the amount of their payments for 3 & 4 Wm. IV. c. 15, s. 2 (which renders the offender premiums. The basis of Vice-Chancellor Bacon's deciliable to pay 40s. to the author) might interrogate the sion was that, although that was not the amount for defendant; and the Master of the Rolls, citing Martin which the debt had been proved, the Court was not v. Treacher, 55 Law J. Rep. Q. B. 209; L. R. 16 Q. B. precluded from looking at the whole transaction, and Div. 507, appears to have been inclined to limit the as it appeared that in the event that had happened the protection from discovery to actions by common in- value of the covenant that was assessed was excessive, formers. There seems to be a sound reason for this the settlement trustees were only entitled to the amount distinction between a party grieved and a party not which had been paid by them. This decision, which grieved; and it is submitted to be at least doubtful was under the Act of 1869, can certainly not now be whether Hobbs v. Hudson is correct. The point is a considered correct to its full extent. It was considerably modified by the decision of the Court of Appeal, very important one, as there are many enactmentseg. the statute of William and Mary, 2 Wm. & M. consisting of Lords Justices James, Brett, and Cotton, sess. 1, c. 5, s. 5, whereby double the value of goods in the case of Ex parte Bates, in re Pannell, 48 Law J. sold under an unlawful distress for rent may be reRep. Bankr. 113. In that case a bankrupt had covecovered by the tenant-by which the Legislature has nanted to pay a life annuity to trustees for the benefit of his wife. The annuity was valued, and proof was given a right to double or treble damages. made by the trustees for the amount thus ascertained, and a dividend was paid by them. The wife died, and the dividend which the trustees had received exceeded the amount of the payments of the annuity which the bankrupt would have had to make if he had remained solvent. THE benchers of the Middle Temple appear to have felled, not merely lopped, the tree in Fountain Court (see ante, p. 292), and it has been said that this was 308 In these circumstances the trustee in bankruptcy has assented, in which case the latter would be estopped. applied for directions, and the Registrar ordered that from denying such assent. the excess should be repaid; but his decision was reversed by the Court of Appeal. The provision,' said Lord Justice James, 'is plain. It says that such future or contingent debts or liabilities of a bankrupt are to be valued in the best way possible, and that when the value has been ascertained, the sum so assessed is to be provable as a debt in the bankruptcy. The statute has converted the annuity for the purpose of proof into a gross sum immediately payable, and on that sum the creditor is entitled to receive dividend; both parties, the creditor and the trustee, taking the proof for better or for worse.' In this case, it will be observed, a dividend had actually been paid; but the time fixed by the Court of Appeal as the moment after which the creditor is entitled to a dividend on the estimated value of his debt, in spite of the contingency happening and showing the estimate to be excessive, is the time when the value has been ascertained.' In future, therefore, trustees may defer estimating the value of the contingent liabilities of the estate they are administering until the time arrives for the declaration of a dividend. By so doing the contingency may In the happen and the value of the liability be determined at a small amount to the benefit of the estate. case of an annuity, if a life-tenant dies, recourse need no longer be had to the doctrine of averages, but the actual value of the annuity at the date of the bankruptcy will be ascertained; if he does not, still the longer the calculation is deferred the more likely is the conclusion arrived at to be just. What would be the attitude of the Court towards a proceeding to compel a trustee to make the estimate, which, the Act says, shall be made' by him? Accepting this as the true criterion, the question to be determined in In re Dodds, ex parte Pritchard, became: Had the value of the annuity been ascertained by the fact of the trustee having received the proof of the annuitant, and retained it without protest until her death? The executors of the annuitant contended that it had, and in support of their position relied upon rule 22 of schedule 2 to the Act of 1883, and upon rule 228 of the Bankruptcy Rules, 1886. By these rules it is provided that, subject to the power of the Court to extend the time, the trustee shall within twenty-eight days after receiving a proof either admit or reject it in writing or require further evidence in support of it. Now, under the Act of 1869, it was held in Ex parte Kemp, in re Russell, 42 Law J. Rep. Bankr. 26, that if a trustee neglected to give notice of the rejection of a proof he must be taken to have admitted it. Now, however, since by rule 23 of schedule 2 a trustee who thinks that a proof has been improperly admitted may apply to expunge it, the objection that a trustee has not rejected a proof within twenty-eight days would seem merely to place upon him the onus of showing that it should be expunged (In re Sissling, ex parte Fenton, 53 L. T. 967). THE NEW LUNACY ACT. THE Lunacy Act, 1890 (53 Vict. c. 5), which came But, further, section 37 of the Act of 1883 provides that an estimate shall be made by the trustee of the How much is old law and how much is new? This value of such contingent liabilities. The Act, therefore, Mr. Justice Cave considered, clearly contemplates question is best answered by referring to the Act of the estimate of the trustee, and not of the creditor, and 1889, 52 & 53 Vict. c. 41, which contained, speaking neither the Act nor the rules say that the trustee is generally, an enactment of all the recommendations either to admit or to reject a part of a creditor's claim which Mr. Dillwyn's Select Committee made to the which professes to estimate the amount of a contingent House of Commons so far back as 1878, and which had liability. Where a man sends in a proof of debt-say, been embodied in Government bills passed by the for instance, for goods sold and delivered-it would House of Lords successively in 1883, 1886, 1887, and obviously be unfair that the trustee should be able to 1888. The Act of 1879, which was fixed to commence postpone proof of the debt until the person who could on May 1, contained ninety-four sections, which are reprove the sale and delivery was dead or had left the peated, in most instances, word for word in the new service of the creditor, but in the case of a contingent Act replacing it, and coming into operation on the same liability as to which the longer the calculation is de- May 1. The best course for any practitioner to pursue, ferred the more likely it is to be correct, the same if he wishes to make himself thoroughly acquainted with Of course it is the new Act, is to read this Act of 1889 quite through method of reasoning does not hold. quite open to a trustee to assent to an estimate sug- from beginning to end. For those who have neither gested by a creditor, and, if he takes that course, the time nor inclination so to do, the following summary of case is exactly the same as if he had himself formed the new portion of the new Act is now subjoined: Judicial Authority for Detention of Lunatic.-By the estimate, but otherwise mere silence cannot be taken as equivalent to consent, unless the position of sections 4-10 no person not being a pauper, or a lunatic the creditor has been in some way altered by the delay, so found by inquisition-i.e. after a trial at which he or he has been led to act on the belief that the trustee has a right to demand a jury-may be detained as a · |