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LONDON, WEDNESDAY, OCTOBER 31, 1888.
LAST Michaelmas term we had the pleasure to include in our columns signed articles by Lord Bramwell and Mr. H. B. Poland, eminent men of the Bar in their respective spheres. This year we turn to the other branch, and have the pleasure to present our readers with articles from the pen of Sir Theodore Martin, K.C.B., and from Mr. Munton.
All over England, we may add, among all English-speaking people, Sir Theodore's name is a household word, and we feel very proud that he is a member of our profession, which for many years he actually and so successfully followed in that department of it known as parliamentary agency. Mr. Munton has made the subject of County Courts his own, and we feel assured that his opinions will be read with in
terest and attention.
We have again to record the advancing figures of the Sun Life Assurance Society. In 1880, the sums covered in this old-established Company were £215,434, whereas in the year just completed they amount to the large total of £706,851, far surpassing any previous return since 1810.
A LANDLORD or reversioner is not in general liable for a nuisance existing on premises let by him, if it did not exist at the date of the letting, but this doctrine has, not unreasonably, been qualified in the recent case of Sandford v. Clarke, 21 Q. B. D. 398, where the letting was only on a weekly tenancy; by holding the landlord liable for injury sustained by plaintiff, from a nuisance not shown to exist at the time of the creation of the weekly tenancy, though existing for nearly two years before the accident. The ground was that, having regard to the nature of the tenancy, there had been a reletting of the premises after the nuisance was created; and it will be obvious that the common ground of non-liability, viz., that the landlord could not enter and abate without committing a trespass, has not much force in the case of such a tenancy.
WHERE a bequest is made by will to husband, wife, and a third person in equal shares, so that prior to the passing of the Married Women's Property Act, 1882, husband and wife would have taken one equal share between them, and the third person the other moiety, the share taken by the third person will still, in a will made after the Act, be a half and not a third. But under the bequest to the husband and wife, each will get a quarter of the sum, the wife taking her quarter share as her separate property. This is the effect of re Jupp-Jupp v. Buckwell, 57 L. J. R. 774, in which Kay (J.) dissented from the judgment of Chitty (J.) in Mander v. Harris, 24 Ch.D. 222, on appeal, 27 Ch.D. 166. The ground is, in the language of Cotton (L. J.): "In my opinion the Act was not intended to alter any rights except those of the husband and wife inter se."
FEW decisions of the year have been waited for with as much expectation and interest by the literary world as Warne and Co. v. Seebohm, in which the "Little Lord Fauntleroy" dispute came into Court. From the report, 39 Ch.D. 73, it appears that the play produced contained considerable passages extracted almost verbatim from the novel, some of these passages being prominent and striking parts of the dialogue in the novel. Of the play containing these extracts, four copies had been made, one having been deposited with the Lord Chamberlain and the others remaining in defendant's possession. Without these copies the defendant could hardly continue the representation of his play, and the question was whether making them was an invasion of copyright, which is defined by Section 2 of 5 and 6 Vict., c. 45, to be the "sole and exclusive liberty of printing or otherwise multiplying copies" of any book or part or division of a book. Literally construing these words, the copies of the defendant came within them; but, notwithstanding the widehess of the terms, it is clear that not every verbatim reprint of part of a book is an invasion of copyright, and the question remained whether what had been done was only a "fair use" of the novel, not amounting to an invasion of copyright. In Tinsley v. Lacy H. and M. 747, it was held that printing and publishing a play, a portion of which, including the most striking incidents, and much of the actual language, had been taken bodily from the plaintiffs' novel, was an invasion of his copyright therein. Had the defendant Seebohm printed and published his play, Stirling (J.) considered there would have been as substantial an infringement of plaintiffs' right making the copies made by Seebohm was no less an as occurred in Tinsley v. Lacy, and he was of opinion that infringement than if the copies in question had been printed and published. The defendant claimed by his counsel at the bar, the right to make such further copies as might be needful to enable him to give further representations of his piece. It is obvious that the decision, by its indirect result, guarantees to an author the right of dramatising his novel, unless that can be done without any substantial aid from the book. The Court ordered the defendant to state on oath the copies of his work existing from such of these copies as were in his possession or power; to extract all passages copied, taken or colourably imitated from the plaintiffs' book, and deliver up such passages to plaintiffs for cancellation; to produce to plaintiffs if required by them for examination the copies after the pirated passages had been extracted; and liberty was reserved to plaintiffs to apply for a further order if they were dissatisfied with the result.
THE founding of the Mortgage Insurance Corporation, whose prospectus appears in our advertisement pages, was one of those happy inspirations which occur from time to time to illustrate the ingenuity with which the human mind overcomes difficulties and dangers in commercial as well as in other affairs of life. We are not aware to whom credit is due for the inception of this valuable and now indispensable form of protection against risk in this important class of investments in land. We should fancy that it was evolved from a lawyer's teeming brain. At any rate, it must have been the result of a ripe experience. Mortgages at one time used to be considered by the general public safe-well, as safe as Consols (for did not the land always remain with us?)-while the interest returned being so much higher, naturally made this class of investment the greatest favourite with the public, and especially with trustees and executors. But some rude shocks to the feeling of satisfied security were received of late years in respect of land. Whereas, of old, land improved in value each year, and the security afforded by a mortgage on it naturally increased in the same ratio, there has been of late years a tendency in the contrary direction. At all events, prudent people, whether they exaggerate the signs of the times or not, have come at length to feel that a mortgage, like everything else, would be none the worse by being made safe, and that assurance could be made doubly sure. The application of the principles of insurance to the matter at once solved the difficulty, and the contingency of the security remaining good to ensure the regular payment of the interest and the ultimate return of the principal, however far forward in the future this may have been appointed for, can be treated as a risk and actuarially estimated, just as a fire risk or a life risk. Policies are issued by the corporation to insure (1) principal and interest, (2) principal only. Executors, Trustees, Benevolent Institutions, &c., must immediately have felt the relief of having such a system of assurance. Nor is this all: the wheels within wheels of this excellent machinery of insurance makes it as easy to BORROW, and at less rates, as it makes a capitalist more ready to LEND, when he knows that the corporation has thought the security good enough to underwrite. The method of procedure is simplicity itself, and no solicitor should be without a copy of the corporation prospectus. We are glad to note that the corporation are careful so to conduct their business as not to interfere with the relations at present existing between borrowers, lenders and their respective solicitors. The capital redemption fund branch of the business enables insurers to secure (1) the redemption on maturity of capital invested in terminable securities. (2) The redemption of leasehold values, which would otherwise be lost to the leaseholder. (3) The payment of any sum of money at any date. There is a very liberal scheme for surrender value, and great facilities afforded for assignment.
Remington Standard Typewriter, from new matter, from dictation, 125 words in a minute, with but three errors, and that the matter was properly punctuated. The judges were F. W. Ganse, 409, First National Bank Buildings, and C. Bayless, of Dubuque, Iowa. This is, without question, the most marvellous typewriting feat on record."
SOME rather exciting contests have recently taken place in America between the operators of the various makes of typewriters; and, from the reports received, the Remington Standard Machine has fully maintained its supremacy. A few years ago typewriters were comparatively unknown in this country, but they are rapidly coming into general use in our leading legal and commercial houses. The possible speed of the Remington Standard Typewriter would appear to be practically unlimited. The Chicago Times of September 6, states "that Frank E. McGurrin, on the night before, being blindfolded with a handkerchief, wrote on the
THE Lord-Chancellor was unable to attend at the opening day of the Michaelmas Sittings last Wednesday, which was the beginning of the legal year, in consequence of the sudden death of his brother.
We regret to have to record the death, on the 23rd inst., of Judge Giffard, of the Exeter County Court. John Walter De Longueville Giffard was the eldest son of Stanley Lees Giffard, LL.D., Barrister-at-Law, and for some time editor of the Standard, by Susannah Mears, eldest daughter of Frank Moran, Esq., J.P., of Downhill, County Mayo. He was called at the Inner Temple in Michaelmas, 1843. He was joint-author of Smale and Giffard's Reports, 1852-57, and solely of Giffard's Reports, 1857-65, when he was taken on the staff of reporters of the Incorporated Council for Law Reporting. In 1875, he was appointed judge of the Yorkshire County Court (West Riding, Circuit 12); but a few years after he effected an exchange, and was transferred to the Devonshire County Court (Circuit 58), in which county the ancient family-seat of the Giffards (Halsbury, in the parish of Parkham), is situated. A more able, painstaking, and kindly judge never sat on the bench, either in the County Court or in the High Court. We cannot recall any successful appeals against his judgments during the many years of his judicial career. His loss will be deeply felt in Devonshire by the practitioners and suitors who have to resort to the Courts comprised in Circuit 12.
THE wiseacre who scribbles for an evening paper his twopenny-halfpenny views of things legal has been very wroth with the Master of the Rolls because this judge refused an application for an adjournment of a case, the ground of the application being that two of the counsel retained were engaged before the Special Commission. But his wrath approached fever heat because Lord Esher very properly affirmed that the Commission was outside his cognisance as a judicial officer. Alas! poor foolish scribe, when will you learn to know that you know nothing, and that flippant criticism of men of experience does not evidence knowledge in a critic?
THE following is further extract from Mr. Charles Ford's paper, which we have referred to in previous issues, on "The shortcomings of the Incorporated Law Society, and why the great bulk of solicitors are not members of it.""Look at the question of the annual certificate duty," says Mr. Ford, "I am quite sure the society prevents the abolition of this duty. I am certain that if the society did not exist, this duty would have been abolished. The council have for years discouraged any movement in favour of its abolition. Look at the financial position of the society. It receives annually 5s. from each solicitor in the country, whether members of the society or not, for preparing the certificate to practise. The charge for this work used to be Is., and that should be quite sufficient; but, if the certificate duty was abolished, this fee of 5s. would no longer be paid and the society would lose a good round annual
The council have promised that in their next annual account they will deal with the students' fees in a separate account. Year after year at annual meetings I have insisted that this ought to be done, and I went so far as to threaten a Chancery action against the society if it was not done. Why is the council going to treat the students' fees separately in their annual account for 1889, when the Act requiring this was passed in 1877? The council of this society is seeking by a Bill in Parliament to exercise certain disciplinary powers over societies: I for one am opposing this in every possible way, and I strongly urge solicitors to urge members of Parliament to oppose the Bill. Quite recently I was talking to a member of the society about its affairs, and he said he considered it a corporation. I am not prepared to go as far as that, but I say that the society is not at all representative of the profession, and many members of the council are old and incapable; that the election of members of the council is in the hands of club men; that the legal education of articled clerks is utterly neglected; that the affairs of the society are mismanaged; and that there is no reason whatever, for instance, why an offending Liverpool, Birmingham, or Manchester solicitor should not have his conduct enquired into by the Incorporated Law Societies. of those places respectively."
IN the order as to fees issued by the Lords Commissioners of Her Majesty's Treasury, and prepared by the Lord-Chancellor and other eminent judges, the following curious paragraph appears in the table of fees: "The foregoing fees numbered 1, 2 and 3 shall be paid by the execution creditor, and shall not be recoverable by him, although the execution proves abortive! This by implication saddles the unfortunate creditor with the fees whether the execution is valid or not. We fancy the word although, which we have italicised should be if, and no time should be lost in correcting this grievous error. Again in the same table, we read "In every case where an execution is withdrawn, satisfied or stopped, the fees under this order shall be paid by the person issuing the execution or the person at whose instance the sale is stopped!" Why? If a creditor of A. B. wrongfully levies on the goods of C. D. who stops. the sale by proving his property in the goods, why on earth should he be made to pay. Clearly this is not intended, and yet this is what the order says. A few additional words would have shown what was intended, but the draftsman in endeavouring to be brief has become something more than obscure. It is a pity that our high judicial functionaries append their signatures to so many things which are "taken as read." It is not too much to ask, that in important matters of this sort the greatest care should be exercised.
A CORRESPONDENT writes :-"We hear a good deal trom the council of the Chief Law Society as to the Solicitors Bill now before Parliament, but as a matter of fact even members of the society have not as yet received a print of the Bill, so it looks as if the governing body of the society seeks to smother the measure through Parliament. Solicitors will have themselves to thank if this happens, and they afterwards dislike the measure. Petitions are likely to be presented to Parliament against the Bill."
A PROFESSIONAL contemporary in its issue of last Sa turday, referring to the Chief Law Society's meeting at Newcastle, reports that "the members did not attend in such large numbers as is usual on such occasions." Then in an editorial paragraph it considers the principal benefit of the meeting to be, "not the papers read, &c.," but "the intimate association of numbers of men engaged in the same pursuit." The same journal reports Mr. Munton's motion as to amalgamation carried by a majority of 39, but it should be remembered that the total number of solicitors voting on the motion was only 61. The association of numbers of men, which our contemporary thinks beneficial, was as regards the Newcastle meeting extremely limited in point of numbers, and its decision on Mr. Munton's motion as to amalgamation of the two branches very unimportant.
Out of the 61 solicitors present and voting, more than halt were no doubt Newcastle solicitors.
A GENERAL Meeting of the South-Eastern Circuit will be held in the Inner Temple Lecture Room, 3, King's Bench Walk, at 4.30 o'clock on Monday, November 5, to consider the following resolutions passed at York by the NorthEastern Circuit on July 21, last :—
1. That this Circuit is of opinion that Her Majesty's Judges should be relieved, by legislative provision, from the duty of required to try at the Assizes such prisoners only as are trying ordinary Quarter Session Cases, and should be charged with offences not triable at Quarter Sessions, or such as, from exceptional circumstances, shall have been committed by the magistrates for trial at the Assizes.
That if the above recommendations be carried into effect, the requirements of the public would be amply satisfied by the holding of three Assizes, viz., Spring, Summer, and Autumn Assizes, ending with the Hilary, Trinity, and Michaelmas sittings respectively (thus making the intervals between the Assizes as nearly equal as is reasonably practicable), and by providing for the trial of Criminal and Civil Cases at all the Towns on the Circuit at the Spring and Summer Assizes, and for the trial of Criminal Cases at all the Towns on the Circuits, and Civil Cases at Leeds alone at the Autumn Assize.
2. That those Members of the Circuit who are also Members of the Bar Committee be appointed to confer with the Bar Committee concerning the new Circuit arrangements and to bring to the notice of the Bar Committee the above Resolution.
And also the Report of Mr. Justice Cave, dated June 23, on the proposed Circuit arrangements. The opinion of the South-Eastern Circuit on these questions has been solicited by the Bar Committee.
A QUESTION of great importance to solicitors and other persons employed by trustees was decided by Stirling (J.), in In re Blundell, 57 L. J. R., Ch. 730. A firm of solicitors had acted for a trustee under a will, and had received out of the testator's estate in respect of their costs, considerable sums; one of these sums had been retained by them out of the proceeds of sale of a portion of testator's property, but there was no evidence to show knowledge on the part of the solicitors that the other sums had been paid out of testator's estate. An action for administration of testator's estate was commenced, and it appeared that a large amount was due from the trustee to the estate. A sum
mons was then taken out in the action, asking that the solicitors might be ordered to repay into Court the sums received out of the testator's estate. We omit the somewhat lengthy narrative of facts, the value of the decision and dicta consisting rather in the general principles enunciated. In support of this application it was urged that a solicitor employed by an executor or trustee in respect of a trust estate must look only to the executor or trustee for his costs, and that though he might get the benefit of the trustee's right to be indemnified by the trust estate, he could not be in a better position than the trustee. In fact, that if money were paid by a trustee, with the knowledge of the solicitor, out of the trust estate, the solicitor would be liable-should the trustee, on the accounts being taken, turn out to be a defaulter, and fail to comply with an order made against him for payment of the balance into Court-to have, to the extent of the sums received by him out of the estate, a similar order made against him. Stirling (J.), in refusing the application, negatived this contention. A trustee, he affirmed, on the authority of many well known cases, is not merely entitled to be indemnified, after he has made necessary and proper payments, but is entitled to ask from the Court that he may receive from the cestui que trust personally the amount of the calls in order that he may pay them, and that this recognized right entailed or included the right to resort in the first instance to the trust estate for making necessary payments to persons properly employed in administering the estate, and to sell a part of the trust estate and apply the proceeds in payment of such costs. The case of Staniar v. Evans, 34 Ch. D., 470, in which North (J.) held that solicitors were liable to pay into Court a sum retained in their hands, though a large amount was due to them from the trustee for costs, was distinguished. There had