THE LAW JOURNAL REPORTS AND STATUTES THE LAW JOURNAL NEWSPAPER, NOTES OF CASES, &c. :- If taken with the LAW JOURNAL REPORTS 1 в Supplied upon application to THE PUBLISHER, 5 Quality Court, SCALE FOR ADVERTISEMENTS. .. £ s. d. 006 Per Annum. circuits assigned to them, their places would have to be 330 Public Companies' Announcements, 8s. per inch in Column, or 71. 4s. per Page. Auction Sales, 7d. per Line. ADVERTISEMENTS RECEIVED UP TO NOON ON THURSDAYS. CONTENTS. 'OBITER DICTA':-Business in the Queen's Bench Division; Sharp v. Wakefield; Roman Catholic Teachers in National Schools; License to Underlet; The Lunacy Act; Joint Applications for Patents; The Census Bill; County Court Registrars; Applications for New Trials; Members of the Bar inter se ; Colonial Admiralty Courts; &c. LEADING ARTICLES:-Mortgaged Farms; Wouldbe Law Reformers PAGE 369 371 373 .374 . 375 . 376 . 378 . 379 Ir is much to be feared that the arrangements for the ensuing Summer Assizes will entail an almost entire suspension of the sittings in London in the Queen's Bench Division as from July 9. According to the circuit paper just issued, two of the circuits are to begin as early as the 26th inst., and by July 9 they will all have commenced. Thirteen out of the fifteen common law judges are told off to go circuit, leaving only Mr. Justice Day and Mr. Justice Grantham in town, and in case Baron Pollock and Mr. Justice Stephen should unfortunately not be sufficiently recovered to go the WE print another letter this week from 'G. C.' about Sharp v. Wakefield, this time with reference to the Attorney-General's Parliamentary comments thereon. In the peculiar position of the compensation question, we think that the chief law officer was bound to say something upon its legal aspect, and also to point out the very curious fact, known perhaps to lawyers only, and not to all lawyers, that if affirmed it will not, technically speaking, be an authority that the licensed victualler has no vested interest. But the AttorneyGeneral perhaps went too far in predicting that the judgment of the Court of Appeal will be affirmed, however great the moral certainty may be that the House of Lords will affirm the judgment. How the AttorneyGeneral came to hold and pronounce the opinion which he did upon the main question-which opinion we take to be in favour of the vested interest-it is impossible to conceive. LORD RANDOLPH CHURCHILL recently asked the Chief Secretary for Ireland whether the members of the order of 'Les Frères des Ecoles Chrétiennes' had been admitted to the position of classed teachers under the National Board in the city of Waterford; and Mr. Balfour, in answering the question in the affirmative, took occasion to state that 'these monks, like the brothers of St. Francis, the Patrician, and the Marist Orders,' had undertaken the charge of national schools in Ireland upon the rules applicable to the teachers of all national schools, adding that there are twenty-six monastic schools at present in connection with the national system of education' in Ireland. A propos, it may not be amiss to point out that the effect of certain still unrepealed sections of the Roman Catholic Relief Act, 1829 (10 Geo. IV. c. 7) (Revised Statutes, 1st edition, vol. vi. p. 633), is that Roman Catholic monks (except some few aged ones, who became such before April 13, 1829) follow their profession in any part of the United Kingdom at very great legal risk. See sections 28-38 of the Act, and especially section 34, by which, in case any person shall after the commencement of this Act within any part of this United Kingdom be admitted or become a Jesuit or brother or member of any other such religious order, community, or society as aforesaid '-i.e. order, &c., of the Church of Rome bound by monastic or religious tation Act. As a set-off, the draftsman has set the Vows-such person shall be guilty of a misdemeanour, good example of arranging the definitions in alphaand being thereof lawfully convicted shall be sentenced betical order, while the definitions in interpretation and ordered to be banished from the United Kingdom clauses generally-even in that of the County Courts for the term of his natural life,' the object of the Act Act, 1888-are arranged anyhow. In connection with being (see section 28) to make provision for the consolidation Acts generally, the attention of practigradual suppression and final prohibition' of such tioners is especially directed to section 38 of the Interorders, &c., within the United Kingdom. By section 37, pretation Act, whereby 'where this Act, or any Act however, females bound by religious or monastic vows passed after the commencement of this Act, repeals and are exempted from the operation of the Act. It is very re-enacts, with or without modification, any provisions material to add that by the Statute Law Revision Bill of a former Act, references in any other Act to the provinow before the House of Commons, although it repeals sions so repealed shall, unless the contrary intention many enactments as obsolete,' comprehending under appears, be construed as references to the provisions so that description (see note to the bill) enactments of re-enacted.' This useful provision generalises a modern 'such a nature as to be no longer capable of being put common form of the draftsman; see, e.g., section 313 of in force, regard being had to the alteration of political the Public Health Act, 1875, and section 102 of the or social circumstances,' and deals with certain minute Factory and Workshop Act, 1878. parts of the Act of 1829 (e.g. an ineffective description in section 28), it is not otherwise proposed to repeal the enactments above referred to, which in all their pristine vigour will, it is presumed, appear in an early volume of the second edition of the Revised Statutes now in progress. 6 A BILL backed by Mr. Lloyd Morgan, Mr. Bradlaugh, Mr. Jennings, Mr. Phillips, Mr. Stuart Rendel, Mr. Dillwyn, and Mr. Randell, to amend the law of real property,' although it has little or no chance of passing, deserves the attention of all concerned in the framing or settling of leases. It is proposed that every covenant against assignment or underletting without license or consent of any person shall, if the demise be a building or repairing lease, be deemed to include the following words-namely, "such license or consent not being arbitrarily, vexatiously, or unreasonably withheld; that no charge is to be paid for a license other than the actual costs of the lessor; that the exclusion of breaches of covenant against assignment without license from the breaches against forfeiture, for which the High Court may relieve under section 14 of the Conveyancing Act, 1881, shall be done away with; and that "this Act shall have effect notwithstanding any stipulation to the contrary." The main point to call attention to in connection with this bill (and a very important point it is), is, that in leases as ordinarily framed at the present day it has not yet become usual to insert a provision, for the protection of the lessee, that no pecuniary consideration beyond the necessary expenses is to be required for the license to underlet, whether because to require such a consideration is unusual, or because it is considered to be barred by the stipulation against arbitrary or unreasonable withholding of the license (which stipulation is very common), it is hard to say. There is, perhaps, some doubt whether such a stipulation operates to exclude the pecuniary consideration, and there is no doubt that it is safer to bar such a consideration by express words. IN Re Grenfell & M'Evoy's Patent, 1890, 7 P. O. R. 151, the Attorney-General recently considered and decided a novel and interesting question. Grenfell & M'Evoy made a joint application for a patent on August 17, 1888. The complete specification was filed on May 17, 1889, signed by M'Evoy alone. The comptroller-general refused to accept the specification unless it was signed by both applicants or by an agent duly authorised to act for both. Against this decision M'Evoy has now appealed successfully to the AttorneyGeneral. The argument is imperfectly reported, but the ratio decidendi is tolerably clear. Grenfell not having filed a double specification, the difficult question as to the duty of the comptroller-general in that contingency did not arise; and the sole point which Sir Richard Webster had to determine was whether there is anything in the Patents Acts or Rules requiring a complete specification, filed in pursuance of a joint application, to be signed by or on behalf of both applicants. The Form of Complete Specification prescribed under the Patents Rules, 1890, contains the following directory note, 'Here insert name and full address or calling of applicant or applicants as in declaration. A further note is appended to the form, in which these words occur: The complete specification. . . must be signed by the applicant or his agent. It was urged that the difference between the two clauses in italics supported the contention of the appellant. But Sir Richard Webster declined to base his decision on any such technical grounds; he took the broad view (which is supported, by the way, by the practice of the Patent Office in regard to the form of letters patent) that the prescribed forms were not intended to deal in terms with every possible case, and that, if from time to time a case arises which was not contemplated when they were drawn up, they may be slightly modified in order that the statute may not fail in its legitimate operation; and he held that the law officer, against whose decision there is no appeal, would not be justified in stopping a patent under the circumstances in question.. This decision, if we have correctly gathered its meaning from a somewhat confused and defective report, is in accordance not only with the traditions of the AttorneyGeneral's Office, but with the policy of the English patent system, which leaves the validity of patents to the determination of the Courts of law. NOTWITHSTANDING the numerous definitions of terms in Acts of Parliament generally which are provided by the Interpretation Act, 1889 (52 & 53 Vict. c. 63), the Lunacy Act, 1890 (53 Vict. c. 5), will be found to contain no less than forty-one definitions in its interpretation clause (section 34). The majority of these, of course, are special and necessary, but the definitions of 6 guardians' and quarter sessions" THE Census Bill will, of course, have to be passed appear to have been already provided by the Interpre- in the present session, though the Census Act, 1880 (43 & 44 Vict. c. 37), did not receive the royal assent allusion was made in these columns last week (ante, till September 7 of that year. It was an Act of con- p. 351), will not be allowed to sleep by the bar comsiderable detail, containing twenty sections, and com-mittee. A leader has been recently censured by the panion separate Acts for Ireland (43 & 44 Vict. c. 28) bench of his inn for improper interference with the and Scotland (43 & 44 Vict. c. 38) were passed at the client's selection of a junior; and it may be that imsame time. Under these Acts the census papers were proper interference by a junior with the selection of a directed to contain 'particulars of the name, sex, age, leader has before now existed. The general rule is rank, profession or occupation, condition as to marriage, believed to be that on no account ought a leader to relation to head of family, and birthplace of every select his junior, or a junior his leader. That this rule living person who abode in every house on the night of is very frequently departed from is pretty well known. Sunday, April 3, 1881.' The early Acts, dating from To what extent, if at all, ought the rule to be departed 41 Geo. III. c. 15, passed in 1801, only got at the from? There is very much to be said for the policy of numbers; the names, &c., were first ascertained under free trade in recommendations so long as no improper the Act of 1840 (3 & 4 Vict. c. 99). Population is fre- motive for the recommendation exists, for no solicitor quently made ascertainable by the census for the time can know counsel so well as they know each other. On being; see e.g. section 65 of the Licensing Act, 1872; the other hand, no case can easily be imagined where and the specific records of names and occupation of the interest of the client can be served by the substituevery living person at a particular date may at any time tion of one counsel for another at the suggestion of prove of great value to solicitors in tracing out pedi- either leader or junior. grees and for other purposes, for which reason it may be desirable that the new bill may give what the Act of 1880 did not a right of search at some public office for a reasonable fee. SECTION 25 of the County Courts Act, 1888, enacts that for every County Court there shall be a registrar, who shall be a solicitor of the Supreme Court of at least five years' standing, and whom the judge shall be empowered to appoint, subject to the approval of the Lord Chancellor, who by section 27 may, in his discretion,' remove the registrar of any Court from his office.' The present registrar of the Croydon County Court, who was a qualified solicitor at the time of his appointment, which was made before the Act of 1888, has since been called to the bar. Mr. Milvain recently questioned the Attorney-General in the House of Commons upon this subject (ante, p. 365), but the AttorneyGeneral was not prepared to say that any breach of the Act had taken place,' and pointed out that the rights of existing' officers were saved by section 188 of the Act of 1888, as no doubt they are. But section 25 of the Act of 1888 was in its material part no new enactment, but merely a consolidation of section 24 of the original Act of 1846 and section 8 of the Act of 1856, the only new parts of section 25 of the Act of 1888 being that requiring residence and that authorising the exaction of a condition against practising as a solicitor. Surely the words of the statutes mean that the registrar shall be and continuously remain a solicitor. It appears (see ante, p. 365) that applications for new trials are for the future to be heard by a Divisional Court composed of three judges. Two and no more,' except in special cases, was the number substituted by section 17 of the Appellate Jurisdiction Act, 1876, for the original two or three and no more' of section 40 of the Judicature Act, 1873; but the Judicature Act, 1884, by section 4, enacts that 'a Divisional Court of the Queen's Bench Division of the High Court may at any time be constituted of more than two judges, if the President of the said division, with the concurrence of not less than two other judges thereof, shall be of opinion that it is expedient so to constitute the same.' It is much to be hoped that the question of the relations between members of the bar, to which a slight THE Colonial Courts of Admiralty Bill, which passed through the House of Lords early in the session, and has been delayed in its passage through the Commons owing to the pressure of business, is more point of view. Its object is to abolish Vice-Admiralty interesting from a constitutional than from a legal Courts and to transfer the jurisdiction to the local Courts. In other words, the Admiralty Court will, in the colonies, be a purely colonial Court in theory, and not, as now, a Court emanating from the jurisdiction of from the local Admiralty Court is to be to the local the Admiralty of England. By section 5, the appeal Court of Appeal and thence (section 6) to the Privy Council. Thus the direct appeal which at present exists to the Queen in Council will be abolished. change is a natural concession to the principle of selfgovernment in the colonies, but whether shipowners will appreciate the enlargement of the power of appeal may be doubted, since it will oftentimes increase the period of litigation. The Fisher v. Roberts, reported in our Notes of Cases at Too much publicity cannot be given to the case of p. 85. It is true that the words of section 81 of the Bills of Exchange Act, 1882, are too clear to admit of any doubt; but at the same time it may be questioned whether business men have hitherto fully realised the risk which may be run by cashing a cheque marked 'not negotiable.' MORTGAGED FARMS. THE working of the Agricultural Holdings Act in reference to mortgaged farms has very properly been made the subject of a full discussion in the Norfolk Chamber of Agriculture, as will be seen from the report in the Suffolk newspaper (reported ante, p. 358). The question was mooted in connection with a case known in the agricultural world as the Lambcote Grange Case, in which a tenant took a mortgaged farm, and not only failed to obtain compensation under the Agricultural Holdings Act from the mortgagees, but also lost a great portion of his growing crops by reason of the mortgagees becoming possessed of the farm with the growing crops upon it. The president of the chamber observed that he believed no farmer had any idea that such a state of things was possible, and it was therefore important that the facts should be widely known among the agricultural interest, for whose immediate relief, indeed, Colonel Cotton has introduced a certain Tenants Compensation Bill, by which it is proposed to provide, amongst other things, that compensation due to a tenant under the Agricultural Holdings and Allotments and Cottage Gardens Compensation for Crops Acts shall be a first charge on the holding, any contracts with a mortgagee arising under the Conveyancing Act, 1881, or the Settled Land Act, 1882, notwithstanding.' But the letting, to come within this section, must, practically, be in writing, so that all oral tenancies are practically excluded. The letting also must be such as in the section is described and authorised—that is, (1) it must reserve the best rent; (2) it must contain a condition of re-entry for non-payment of rent; and (3) it must be for more than twenty-one years. Written agreements will no doubt, as a rule, contain these ingredients, and where a tenant holds a mortgaged farm by a written agreement made after January 1, 1882, if only the Conveyancing Act shall not have been barred Now, however much the law complained of may be a in the deed of mortgage, he may, as a rule, consurprise to tenant farmers, it is not only reasonably sider himself safe. Where, however, his agreement clear, but it is also pretty widely known to lawyers, is oral, the tenant is completely at the mercy of whose memories will only have to be refreshed. About a the mortgagee, unless the Agricultural Holdings Act, hundred years ago, in the great case of Keech v. Hall, 1883, contains anything that comes to his aid. Now, 1 Dougl. 21; 1 Sm. L. C. 9th ed. p. 546, it was laid just at the very first sight, that Act wears a very down that a mortgagee may recover in ejectment, friendly appearance. The tenant, it is said, may without giving notice to quit, against a tenant who claim compensation from his landlord on quitting claims under a lease from the mortgagor, granted after his holding at the determination of his tenancy; the mortgage without the privity of the mortgagee.' and by section 61 the term 'landlord' in relaLord Mansfield there said :tion to a holding means any person for the time being entitled to receive the rents and profits of a holding.' A mortgagee in possession, it might perhaps be argued, is entitled to the rents and profits, and, applying the rule that the burden goes with the benefit, the mortgagee is the person from whom compensation may be claimed. But by the next sentence of the interpretation clause the term tenant' means 'the holder of land under a landlord for a term of years, or for lives, or for lives and years, or from year to year,' and, in the case supposed, the tenant never holds under the mortgagee at all for any terms or for any description of Mansfield said in the leading case, 'he stands in exactly tenancy whatever. He is a mere trespasser; as Lord the same position as the mortgagor,' deriving from one having no title and having no title himself. Therefore those who are advising tenants about to take new farms should be careful to get them to execute written agreements drawn up in conformity with the Conveyancing Act, unless there is an absolute certainty that the farm intended to be taken has not been mortgaged. On full consideration, we are all clearly of opinion that there is no inference of fraud or consent against the mortgagee to prevent him from considering the lessee as a wrongdoer. When the mortgagor is left in possession the true inference to be drawn is an agreement that he shall possess the premises at will in the strictest sense; and therefore no notice is ever given him to quit, and he is not even entitled to reap the crop, as other tenants at will are, because all is liable to the debt. . . . The tenant stands in exactly the same position as the mortgagor. Whoever wants to be secure, when he takes a lease, should inquire after and examine the title-deeds. practice, indeed (especially in the case of great estates), that is not often done, because the tenant relies on the honour of the landlord; but whenever one of two innocent persons must be a loser, the rule is, qui prior est tempore, potior est jure.' If one must suffer, it is he who has not used due diligence in looking into the title. In This celebrated decision has been frequently confirmed, as will be seen by reference to Doe v. Maisey, 8 B. & C. 767, and the observations of Lord Selborne in Dows v. Telford, 45 Law J. Rep. Exch. 613. At common law, therefore, there is no doubt that a tenant farmer taking a mortgaged farm takes it at his peril. But how, if at all, is the common law altered by the Conveyancing Act, 1881, and the Agricultural Holdings Act, 1883 ? First, section 18 of the Conveyancing Act-which, however (subsection 13), can be contracted out of by mortgagor and mortgagee, and also (subsection 16) is not retrospective-effects a very material alteration, as follows: A mortgagor of land while in possession shall, as against every incumbrancer, have, by virtue of this Act, power to make from time to time any such lease of the mortgaged land, or any part thereof, as in this section described and authorised The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting. Now, although the term 'lease' is commonly used to describe a letting for a term of years by deed, in law it means any letting, and by the latter part of this section it expressly has that inclusive and comprehensive meaning, so that tenancies from year to year are included. 1 And now comes the very serious question whether the law ought in justice to be altered, and to what extent. Is Colonel Cotton's proposal that the tenant's compensation under the Agricultural Holdings Act is to be made a first charge upon the land a just one or not? To a certain extent it seems to be. Although it sets aside the rule qui prior est tempore, potior est jure, still the mortgagee would, when he re-entered, find his land more valuable to him by reason of the tenant having duly cultivated and improved it; and it seems to be fair that, in default of the mortgagor, the tenant should be able to resort to the mortgagee for compensation. But this resort should be in default of the mortgagor only, who is primarily liable for the state of things which has arisen; and it is only on proof of an unsatisfied judgment against the mortgagor that the tenant should be able to come upon the mortgagee. Colonel Cotton's bill should be taken up by the Board of Agriculture, and though the remodelling will be by no means easy, it should be remodelled in the way which is here suggested. Nor should the scope of the bill as so remodelled be confined to ' compensation under the Act,' but growing crops, tenant right, and so forth should be carefully included. Whether at the same time it would be desirable to mitigate the harsh JUNE 21, 1890.] ness of the rule in Keech v. Hall by providing for some short notice, before the expiration of which the mortgagee should not be allowed to re-enter and expel the tenants of the mortgagor, is another and more difficult question. Practically, in most cases no doubt, some sort of notice is in fact given. On the whole, it is suggested to be fair and just and for the convenience of all parties interested that two or three months' noticeduring the pendency of which, of course, the tenants should become liable to the mortgagee for an occupation rent should be required before the mortgagee should be able to expel the tenants of the mortgagor. WOULD-BE LAW REFORMERS. gated to his birth settlement. The article seems to be pervaded by the unconsciousness that either parent of an illegitimate child is under any legal liability whatsoever for its maintenance or education, although in truth the obligation is nearly as broad and continues almost as long as in the case of a lawful child-viz. to sixteen years. At p. 622, a fresh confusion seems to be made as to the testamentary powers of an English parent, and a notion to be entertained that an English, like a Scotch, 6 a bairn's part;' son, if born in wedlock, can insist on while at p. 623 English law is said to be very peculiar in presuming in favour of the legitimacy of the child of a married woman, though such a presumption, except in stage-plays or French novels, is surely not peculiar or unnatural. It is unfortunate when advocates for law reform take no The adoption of the rule suggested by the article— pains to inform themselves of the existing state of the the equal legitimacy of all children of any parent, relaw which they desire to alter. The Westminster Re- gardless of wedlock, if adopted would lead to remarkview this month contains a remarkable article on 'The able results upon an intestacy, and would be somewhat Legitimacy of Children.' Its object is to prove that unfair on a wife, who at present has certain preferential all children, whether born in or out of wedlock, should rights or claims for herself and her children upon the have all the rights-but it does not add also all the estate of an intestate husband, which rights or claims liabilities of lawful children. We are not concerned she may not unreasonably be deemed to have had in to deny this or to attack the curious suggestions for view when she contracted marriage. But whether such amending the laws so as to legitimatise adulterine a change in the law be or be not expedient, it is bastards; the latter reform seems to have reached astonishing that such a tissue of legal solecisms should Malta vid Rome (Gera v. Ciantar, 56 Law J. Rep. be admitted into a periodical like the Westminster P. C. 93), but neither change is in the least imminent Review, even in the sacred cause of law reform; for the in England. What we have to point out is that the general merits of the article show nothing to counterwriter of the article (from internal evidence we should balance its inaccuracies unless it be the precious sentisay it was written by an Irish lady) appears to be abso- ment recorded at p. 621, that 'An union of souls is lutely ignorant of the present law. On page 617 he (or indeed a rare thing in the nineteenth century.' she) writes: "If a male child, he (the bastard) is incapable of inheriting property'-whence, apparently, the reader is to infer either that females are in a better position, or that no female can by English law inherit at all. The next proposition is startling: 'Even if he by his own industry, after arriving at manhood, acquires wealth, his offspring have no claim to it in the event of his dying intestate,' for which astonishing statement he quotes the late Mr. Joshua Williams's words (' Real Property Law,' 13th ed. p. 127): 'Being nobody's son he can have no brother and sister, or any other heir than an heir of his body,' an authority which absolutely contradicts the statement it is cited to support. The error is no mere misprint, for the next passage goes on to contrast the advantage which the children of traitors and felons have had since 1870 over those of bastards. Even the effect of the Felony Act is confusedly stated, and it is made to appear that that Act did not abolish forfeitures to the Crown, but merely gave a felon a testamentary capacity which previously he did not possess. Reviews. EDMUNDS ON PATENTS. The Law and Practice of Letters Patent for Inventions. 1890. FORTY-FOUR years ago the late Mr. Hindmarch wrote and published a book which has since stood alone as the only comprehensive treatise on the law of patents, and which, notwithstanding statutory changes in the law, has to a great extent retained its value so far as it enunciated and explained matters of principle. More than one useful work dealing more especially with the practice of this branch of law has since appeared, and, The writer's next slip is to dig up the ancient non-indeed, the Patents Act of 1883 gave birth to some sense that a bastard can have no surname.' In these dozen or more text-books upon the subject, of which days anybody can have any surname he likes to take, as one at least has already reached a third edition. The long as he does not take it so as to appropriate another best of those text-books, as manuals of practice, will man's trade (Du Boulay v. Du Boulay, 38 Law J. Rep. not be displaced by the volume which Mr. Edmunds, with P. C. 35; L. R. 2 P. C. 430); and a bastard can take the acknowledged assistance of Mr. A. Wood Renton, of either his father's or his mother's surname or any Gray's Inn, has now produced. A book such as this, other surname he chooses without let or hindrance from extending to nearly 1,000 pages, and containing references to over 1,000 cases, is necessarily better Again, a bastard has no claim to belong to the suited for use as a work of reference than as a handparish in which he was born' (p. 620). This, if true, book of practice; but it does not follow that Mr. We think he would be welcome news to most of the poor-law Edmunds has not supplied a want. He has presented us with authorities in England. Nobody in England has a has, and done it well. better right or chance than a bastard of being rele- a history, as well as with a practical view of the anyone. |