COURT OF APPEAL, SITTINGS AT LINCOLN'S INN.

Ex parte PAYNE; Re CROSS-

Bill of sale-Consideration-For-
bearance to seize under prior bill
of sale

Er parte KIRKWOOD; Re MASON-
Bankruptcy-Liquidation petitio
-Description of debtor-Regis-
tration of resolutions

R HAMILTON'S WINDSOR IRON WORKS
COMPANY (LIMITED)-

Company-Winding-up-Leave to
proceed with action-Foreclosure
action by mortgagee.

Be SOUTH DURHAM IRON COMPANY; T.
T. SMITH'S CASE-

Company Director-Loan by a
firm to the company-Partner in
the firm a director....
SITTINGS AT WESTMINSTER.
ERYANT, LEFEVRE AND OTHERS-

572

LEADING ARTICLES, &c.

TO READERS AND CORRESPONDENTS
Topics of the Week

LEADING ARTICLES

LAW STUDENTS' JOURNAL

149

149

........ 563

Right of Passage of Air to Chimneys of a Dwelling House 151 Gifts to Societies and Mechanics' Institutes by Testators 152 Authority of Business Manager to Buy on Credit... ........ 153

LEGISLATION AND JURISPRUDENCE

House of Lords

566

SOLICITORS' JOURNAL

154 The Lord Chief Justice and the Criminal Code.... ........ 154

Topics of the Week

569

Common Pleas Division

Appointments under the

Joint

Stock Winding-up Acts Creditors under Estates in Chancery Creditors under 22 & 23 Vict. c. 35... 156 Reports of Sales. ...... 156

155 155 155

155

Easement-Prescription-Obstruct-
ing access of air-Nuisance......... 579
HIGH COURT OF JUSTICE.-
CHANCERY DIVISION.
BOLTON . THE SCHOOL BOARD FOR
LONDON-

Right of way-Appendant or ap-
purtenant-Two ways-Way of
necessity

OF

QUEEN'S BENCH DIVISION. THE PHARMACEUTICAL SOCIETY GREAT BRITAIN T. THE LONDON AND PROVINCIAL SUPPLY ASSOCIATION

(LIMITED)

Pharmacy Act 1868 (31 & 32 Vict. c. 121), 88. 1, 15-Sale of poisons by corporation

BTANANOUGHT (app.) v. HAZELDINE (resp.)

Municipal election-Ballot ActOffence under Criminal information-Bad for duplicity......

589

PROBATE, DIVORCE, AND ADMI

RALTY DIVISION.

ADMIRALTY BUSINESS.

THE CITY OF MANCHESTER

Practice Costs - Cargo suing

Ez parte BARKER; Re BARKER

Both to blame

COURT OF BANKRUPTCY.

Bankruptcy

-Bill of sale- Prior

6.6

agreement-Bankruptcy Act 1809,

OATH

156 156

159

Now Ready, 8vo. cloth, THIRD EDITION, price 48., post free 4s. 3d. ATHS IN SUPREME COURTS.-Handbook for use of Commissioners, Magistrates, and Solicitors in England, Ireland, and Wales, containing Special Forms of Jurats, Oaths, &c.-Forms and directions for use by Solicitors applying for Commissions-New Regulations-Power and Jurisdiction of Commissioners and other persons as affected by English a d Irish Judicature and other Acts; also information for use by Perpetual Commissioners for taking acknowledgments. By CHARLES FORD, F.R.S.L., Examiner in Admiralty, S.S.C. (Eng.)

London: LAW TIMES Office, 10, Wellington-street, Strand, W.C.

The Law and the Lawyers.

THE result of a year's bankruptcy appeals appears by the return furnished as an appendix to the Comptroller's report. There were 113 heard by the Court of Appeal at Lincoln's-inn in 1878. In these the results were as follows:-Judgments affirmed, 44: judgments reversed, 27; judgments varied, 1; appeals withdrawn or arranged, 13; appeals pending 31st Dec. 1878, 28. There were 154 appeals heard by the Chief Judge with the following results:-Judgments affirmed, 57; judgments reversed, 48; judgments varied, 3; appeals referred back, 9; appeals arranged or withdrawn, 13; appeals pending 31st Dec. 1878, 24. The reversals in both cases are numerous, and offer a decided encouragement to defeated applicants.

THE earlier decisions of our courts of law with reference to clubs, and their committees, will be found to bear chiefly upon the personal liability of members of such bodies. Amongst these must be reckoned such decisions as that of Todd v. Emly (8 M. & W.

VOI. LXVII : No. 1891.

505), and Fleming v. Hector (2 M. & W. 172). In the former, where a club was formed, and a fuud subscribed to be administered by a committee, the Court of Exchequer held that the committee must be assumed to have agreed to do what the subscribers to the club had power among themselves to do, namely, to administer the funds of the club so far as they went, and not to deal on credit except for such articles as it might be immediately necessary for them to have on credit. In Fleming v. Hector, the action was brought against a member for wines supplied to the club. At the trial Lord ABINGER expressed an opinion that such institutions were of the nature of partnerships, and subject to the same incidents, so far as concerned the authority of the committeemen. Upon the argument of a motion to enter a nonsuit, his Lordship changed his opinion, and the view which ultimately prevailed was that expressed by Baron PARKER, namely, that the question was whether there was sufficient evidence to go to the jury to satisfy them that the person who actually ordered the goods was the authorised agent of the defendant in making the contract. In the most recent case, however, namely, that of Col. DAWKINS, against the trustees and committee of management of the Travellers' Club, which came before the MASTER of the ROLLS a few days ago, an interesting question was raised in respect of the enforcement of a rule which gave a power of expelling a member. The plaintiff who claimed to be reinstated as a member had joined the club many years ago, long before the rule under which he had been expelled, was introduced, a circumstance that formed one of the grounds upon which he took the present proceedings. The MASTER of the ROLLS decided in effect that a claim to be reinstated as a member in a club whose rules contain such a power of expulsion cannot be sustained in the absence of malice.

66

THE jurisdiction of the Court of Bankruptcy is certainly but vaguely defined by statute, and, though recent decisions have tended to show there is a line of limitation somewhere, the practice upon this point seems still most unsettled and unsatisfactory. The latest instance in which the zeal of a registrar sitting as Chief Judge appears to have outrun his authority is to be found in the recent case of Ex parte Fletcher, Re Hart. There an order was made against a trustee for foreclosure after six months, in default of payment of the sum due on the mortgage. The mortgagee appealed to have the time reduced to one month, on the ground that the trustee had no assets, or to have a sale with leave to bid. In giving judgment Lord Justice JAMES said: I do not absolutely abjure the jurisdiction of the Court of Bankruptcy to order foreclosure, but I think it has not done so before, and the fact that rule 78 gives the court power to sell the mortgaged property tends to show that it was not intended to have the power to foreclose." That rule does most undoubtedly support this view of the matter, as it provides elaborately for the court dealing with mortgaged property, and, while giving powers of inquiry and sale, contains nothing whatever about a foreclosure. The LORDS JUSTICES, however, held that, as the court below had assumed a jurisdiction which they would not "absolutely abjure," six months was the proper time for foreclosure, and so the order could not be altered. Neither could they grant a sale, because that had not been asked at the hearing, and could not be given without the consent of the trustee. The appellant, therefore, had to rest content with the order he had obtained, though such a one had never beer made before, and, after the opinion expressed by the Court of Appeal, will probably never be made again. The desire to settle the rights of everybody in an all-round kind of way may be in itself praiseworthy; but it would be far better if the Court of Bankruptcy were content to deal only with such matters as properly relate to the law and practice of bankruptcy.

THE liability of a master of a vessel having a pilot on board, for breach of the bye-laws of the Thames Conservancy, was raised in the case of Oakley v. Speedy, which recently came before the Queen's Bench Division, and the point at issue, while of considerable interest to mariners as regards the relative liabilities of master and pilot, also involved an important question as to the distinction between penal and civil liability consequent upon the commission of a wrongful act. The case in question was an appeal from a decision of the police magistrate at Woolwich, dismissing a complaint by the Conservators of the River Thames against the master of a merchant vessel for careless navigation in the river, on the ground that a pilot was in charge of the vessel at the time. The vessel in question was a steamer outward bound from the port of London, and the complaint was navigating it in the river at excessive speed, contrary to the bye-laws of the Thames Conservancy; and it appeared that at the time a pilot was on board and in charge of the vessel, being required to be so by other bye-laws of the conservancy until the vessel reached Gravesend. This being set up as a defence by the master, the magistrate yielded to it, and dismissed the complaint-a decision from which the conservators appealed. The argument on the part of the appellants went to show that the master was primarily liable, and, being on board at the time, it was for him to show that the improper navigation arose, not from his own act or acts, but from that of the pilot. Two

cases were cited in support of this theory, but Mr. Justice LUSH pointed out that they both had reference to civil actions, and treated of statutory exemption in particular cases, and that they did not apply to charges upon the bye-laws for improper navigation. His Lordship also pointed out that, although the ownewould be liable prima facie for a collision, yet it was the person actually committing the wrongful act of careless navigation who was alone penally liable under the bye-law. Here there was an infringement of a penal law which made a person actually infringing that law liable; in the case of civil liability it might be different.

Ir can scarcely be said that there is any new principle involved in the decision of the Court of Appeal in the case of Wilkinson v. Alston, which was heard some days ago. The decision is nevertheless one of great interest, and especially to ship brokers. The action was brought to recover commission on the sale of thirtyseven sixty-fourths of a ship named the Madras, and owned by the defendant. Some time towards the end of 1875 the defendant authorised the plaintiff, upon commission, to find a purchaser for his shares in that ship. The defendant authorised the employment of another broker by the plaintiff, and was informed in March 1876 that the broker so employed was negotiating with an intended purchaser. The plaintiff, thereupon, wrote as follows to the plaintiff: "There is no use doing anything herein until the return home. No one will buy a ship at sea unless they know her thoroughly." The shares were ultimately sold by that intending purchaser, who, having given a guarantee that he had affected the sale without the intervention of a third party, was paid £290 commission by the defendant. The plaintiff, however, claimed commission on the ground that the sale was really made through information and introduction obtained from the broker employed by him. The action was twice tried. Mr. Justice LUSH presided at the second trial, when the jury found that the plaintiff was authorised by the defendant to sell the ship, and that the intending purchaser was induced to enter into negotiations by the broker employed by the plaintiff. The learned judge gave judgment for the defendant upon these findings, on the ground that the above letter amounted to a revocation of the plaintiff's authority. The Lords Justices were unanimous in holding that there was no revocation. Lord Justice BRETT thought it must be taken that the plaintiff was authorised to find a purchaser. He was to be entitled to a commission if he introduced the ship to a purchaser, although the rest of the negotiation was conducted between the buyer and the owner. As it was not necessary for the plaintiff to introduce a purchaser with his own mouth, he might employ an agent, Inasmuch as the person who was commissioned by the defendant, or paid, refused to act as agent for the broker employed by the plaintiffs, Mr. Justice LUSH thought there was a break in the chain of agency. Whether the person so paid by the defendant was really an intending purchaser on his account or not, or whether he was simply the agent of another is immaterial, for the legal result is the same, whether the negotiations are with himself or with his agent. The appeal was accordingly allowed.

66

In

THE case of Wheeldon v. Burrows, which recently came before the Court of Appeal, is one of considerable importance, inasmuch as the court, after reviewing the authorities, enunciated two propositions relating to rights to light as deducible from them. One TETLEY in 1875 put up some property for sale by auction, in lots. The plaintiff became the purchaser of Lot 10, which was conveyed to her in fee by a deed dated the 6th Jan. 1876, 'together with all lights, easements, and appurtenances whatsoever to the said piece of land and hereditaments, belonging, or in any wise appertaining." The deed contained no express reservation to the grant or in respect of the property conveyed. Feb. 1876, TETLEY sold to the defendant, by private contract, a portion of the property which had not been sold at the auction, and which had formed Lot 6 at the auction. This lot adjoined the plaintiff's lot, and it consisted of a silk mill and other buildings, some of the windows in which overlooked the plaintiff's land. On the 7th April 1876, TETLEY Conveyed Lot 2 to the defendant in fee by a deed which contained several words similar to those contained in the conveyance to the plaintiff. In Jan. 1878, the plaintiff erected hoardings on the edge of her land against the defendant's windows, in order to assert her right to the uncontrolled use of her land, free from any right of the defendant in respect of light. The defendant knocked those hoardings down, and the action was brought to restrain him from committing a trespass by knocking down the hoarding. The defendant, by way of counterclaim asking for an injunction to restrain the plaintiff from obstructing his light. Vice-Chancellor BACON held that no right expressly or by implication was reserved to TETLEY, the grantor, in respect of the windows, and that consequently the defendant had no right in respect of them, and the plaintiff was entitled to build on her land so as to obstruct the windows. The Court of Appeal was of opinion that the VICE-CHANCELLOR was right both on principle and on authority, and that the following two propositions were deducible from the authorities: (1) That on a gran t by the owner of an entire heritage of a part of it as it

is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements, all those easements which are necessary to the reasonable enjoyment of the part granted, and which have been used by the grantor in respect of that part during the unity of possession; (2) that if the grantor intends to reserve any right to himself it is his duty to reserve it in the grant. "The second of these propositions was subject to some exceptions, one of which related to rights of way of necessity, and there might be, and probably were some others. Both were founded on the maxim that a grantor cannot derogate from his grant."

to

QUESTIONS that arise with reference to the construction of the Highways Act 1835 (5 & 6 Will. 4, c. 50) often appear to depend upon formal or technical considerations. This appears some extent to have been the case in Reg. v. Wallace (40 L. T. Rep. N. S. 518), which was appeal from the Ipswich Quarter Sessions. An application was made to the Court of Quarter Sessions for power to divert and turn a certain highway in the parishes of Orford and Sudbourne, and to substitute a new highway in lieu thereof. The certificate of two justices, required by the above Act, did not state that the old road would become unnecessary upon the completion of a new road, but that the new road would be more commodious to the public, "because the old pathway passes at the Orford end through a low part of the park, which, upon inquiries, we find in spring and winter is very wet and uncomfortable for walking; and along the Sudbourne portion is very irregular, not only in its direction, but also by the nume rous holes and uneven ground over which it passes.' An objec tion was made to the certificate on the ground that it was incomplete and insufficient, because it did not state that the old pathway or highway was or would become unnecessary, and, if so, why it was or would become so. The Justices held that this objection must prevail. Another objection taken to the certificate was, that the statement that the new path would be more commodious was based partly upon inquiries made by the justices, though it did not appear unequivocally that they acted on their own view as required by sect. 85, which provides a mode of proceeding for diverting and stopping up highways. For the appellant it was argued that that section contemplated two things-the stopping up of an old way as unnecessary, and the diverting a way by substituting a new way for it; and that though there may be a stopping up without a diversion, there cannot be a diversion without a stopping up; and, if so, then all the conditions with respect to stopping up must be complied with. Chief Justice COCKBURN regretted that the order of the justices could not be maintained. The objection to the certificate was, in his Lordship's opinion, that it did not show upon its face that the proposed substitution of a new road would be more commodious to the public, as the result of the view of the magistrates themselves affecting their own judg ment. "I think," he went on to say, "this is necessary under the Act of Parliament. The Act of Parliament requires that the justices should view, and not only that they should view, but that they should certify under their hands the fact of their having viewed, and that the proposed new highway was shorter and more commodious than the former one. If more commodious, which was the ground upon the certificate as given here, they had to set out the reasons why it was so. The reasons, I think, must be reasons resulting from the view on their own personal inspection, and not from statements which they might have received from parties possibly interested in the result." The other objections were rather technical than substantial, but that upon which the Chief Justice relied proceeded upon the well-known principle that there can be no delegation of a judicial function.

COUNTY Court practice is far from being uniform throughout the country or even in the metropolis alone, for though the consolidated rutes are supposed to have settled everything, many courts have adopted points of procedure for which there is no authority whatever save their own opinions. This is especially so in regard to the new system of default summons founded on sect. 1 of Act 1875. These are looked upon with dislike at many courts as being an innovation; while by other judges and registrars they are encouraged on account of giving less trouble and carrying better fees than does the ordinary procedure. As instances of the differences in practice which prevail, we will quote a few out of many examples. Order VII., rule 4, provides that "the solicitor of a plaintiff suing by a solicitor shall indorse on the particulars his name or firm and place of business." Many of the Profession who do much in the County Courts accordingly print forms of particulars with their name and address at the bottom as they would upon the back of a writ. These are received by most registrars; but in at least two Metropolitan County Courts they are refused on the ground that the solicitor's signature must be in writing; a crotchet which is doubtless followed in other courts about the country, though it is as untenable as it is inconvenient. Again some courts will and others will not allow a solicitor who is a Commissioner to swear his own client to the affidavit of debt required upon issuing a default summons. As to this, the orders are wholly silent, though as there was a rule specifically against this practice in the old Admiralty rules which

has not been re-enacted, this is an argument in favour of the practice. It is, indeed, mainly a question of convenience, for commissioners are not always easily found, and the registrar himself is seldom in the way when wanted. Another point as to which some Courty Courts still hold their own opinion, though it is contrary to the ruling of Mr. NICOL of the Treasury, raises a question of costs. According to the original scale affecting a default summons, the sum of 6s. 8d. is allowed for "affidavit of service, filing, and entering judgment." This way of putting it raised doubts as to how much was to be marked and recovered if the case went no further than a summons. The rule of 1876 therefore explained that a moiety of this item shall not be entered on the summons, which made the matter still more doubtful, being capable of three constructions under which some registrars mark half the fee on the summons; others the whole; and others again none at all; such are the vagaries of individual opinion. Mr. NICOL has explained-as, indeed, is obvious, though the new rule could not have been more darkly worded-that half the fee is to be marked upon the summons to cover the cost of the affidavit, which must be made within three days of service, and the other half is only chargeable on signing judgment. The same authority has also laid it down that only upon affidavits of debt ought the fee for filing to be taken, yet many registrars extend its application to affidavits for substituted service. Other points could be mentioned, but we have done enough to show the need there is for more uniformity in County Court practice.

MR. JUSTICE STEPHEN and a common jury were engaged a few days ago upon a case (Richardson v. Perkins) that raised some questions relating to that complicated branch of law which defines the liability of masters for the acts of their servants. From the facts proved at the trial it appeared that the plaintiff, a builder and joiner, when crossing a street saw a van coming along the road towards him. He stepped upon the kerb while the van passed by. He again began to cross the road, but before he reached the other side he was suddenly struck on the back and knocked down by a second van. The horse crushed his left arm, and one of the wheels passed over his left side. The defendant was the proprietor of a number of horses, which he lent on hire to different persons, with men to manage them. The wages of the men were paid by the defendant, but the men were entirely under the orders and control of the hirers. The van which struck the plaintiff belonged to a firm of coal merchants; the horses and men were hired upon the terms mentioned. The learned judge ruled that at the time of the accident the driver of the van, though the general servant of the defendant, was not under his direct orders and control, and consequently that the defendant was not liable; and, secondly, that there was no evidence of negligence. A nonsuit was accordingly entered. As a general rule there is no doubt that whenever a master entrusts a horse and carriage to his servant, to be used by him in furtherance of his master's business, or for the execution of his orders, the master will be responsible for the negligent management of the thing entrusted to the servant so long as the latter is using it or dealing with it in the ordinary course of his employment. The facts, however, in the case before Mr. Justice STEPHEN did not admit of this plain principle. In the well-known case of Laugher v. Pointer (5 B. & C. 564) the owner of a carriage hired of a stable keeper a pair of horses to draw it for the day, and the owner of the horses provided a driver, through whose negligent driving an injury was done to a horse belonging to a third person. The Court was divided in opinion, Chief Justice ABBOTT and Mr. Justice LITTLEDALE holding that the owner of the carriage was not liable for the damage, Justices BAYLEY and HOLROYD dissenting. In Bush v. Steinman (1 B. & P. 407) Mr. Justice HEATH expressed it as his opinion that if a person hires a coach upon a job, and a job coachman is sent with it and does any injury, the hirer of the carriage is answerable. This opinion, again, it will be seen, does not cover the case before Mr. Justice STEPHEN. In Quarman v. Burnett (6 M. & W. 499) the Court of Exchequer acted upon the decision of Laugher v. Pointer. Baron PARKE, who delivered the judgment of the Court, remarked that "the liability by virtue of the principle of relation of master and servant must cease where the relation itself ceases to exist; and no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of another, and his act the act of another. Consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable." This statement embodies the essential principle, the application of which, however, is often a matter of extreme difficulty.

Ir to be kept waiting in the House of Commons for two years, and to have every one of its clauses as keenly discussed as those of a party measure, is a process likely to clear a Bill of all ambiguities and make it as far as language can express the intention of its promoters a perfect Act, then the Mines Regulation Act 1872 should be one of the clearest drawn enactments on the statute book, for such was the ordeal it had to undergo. When any difficulty as to the construction of any section shall arise, no

judge ought to be more competent to decide what was the intention of the Legislature in respect of it than Lord COLERIDGE, for he was Attorney-General at the time, and took an active part in the debates on the Bill. One of the most keenly discussed sections of the Act was sect. 51, sub-sect. 31, which provides that, in the event of any contravention or non-compliance with any of the preceding general rules being proved in the case of any mine to which this Act applies, the owner, agent, and manager shall each be guilty of an offence against the Act, unless he proves that he had taken all reasonable means, by publishing, and to the best of his power enforcing, the said rules or regulations for the working of the mine, to prevent such contravention or noncompliance. In the recent case of Wynn v. Forrester (40 L. T. Rep. N. S. 524), which curiously enough came upon a case stated by the stipendiary magistrate of Stoke, before a court of which Lord COLERIDGE was one of the judges, the construction to be placed on this section had to be considered. The respondent was an agent of a coal mine, and at the time of the contravention of the rule of the Act, one HOLLINS was certificated manager of the mine. The assistant inspector of mines for the district visited the colliery on a certain day in October last, and found the ventilation defective and inadequate (according to sub-sect. 1 of sect. 50) owing to a fall. He thereupon gave directions to the respondent FORRESTER, who accompanied him in the absence of the manager, to have the same remedied. About a fortnight later he found the ventilation still defective and inadequate, and that nothing had been done to remove the fall or improve the ventilation; thereupon the ap. pellant took proceedings against both HOLLINS and FORRESTER. It was proved that HOLLINS was duly certified manager, and that the mine was worked under his directions, and that the respondent was the agent of the mine, and occasionally in the tempɔrary absence of HOLLINS, which was about two days a week, gave certain directions for the management of the mine. HOLLINS was convicted and fined, and the summons was dismissed as against the respondent. It was contended that the magistrate under sect. 51 was bound to convict both, but he held that, as HOLLINS had been convicted of the offence, he had no right to convict the respondent for the same offence. The intention of the enactment was, he thought, that there should be some person attached to the mine thoroughly conversant with mining operations, who should be responsible for the safe and proper working of the mine, and that if that be not so, but if the owner or agent who may know little or nothing of the subject is to share the responsibility of the manager, there would be a divided authority which might lead to very serious results, because the two parties might differ in opinion as to any remedies or alteration to be adopted. The Court, however, thought that this view of the intention of the Act was wrong, and Lord COLERIDGE observed that the very arguments of the stipendiary magistrate had been addressed in vain to Parliament against the passing of this Act or this clause in it. Whilst agreeing with the construction put upon the section by Lord COLERIDGE, and with his view generally that the Act is a wise and salutary one, we cannot help thinking that with regard to this section it would be an improvement to the Act if it were struck out and one expressing what the magistrate thought was its meaning were substituted in its stead.

RIGHT OF PASSAGE OF AIR TO CHIMNEYS OF A DWELLING HOUSE.

AN interesting and important case as affecting the rights of neighbouring householders to raise old buildings, and so by altering a condition of things which has existed for over twenty years to interfere with the access of air to the chimneys of an adjoining house, came before the Court of Appeal recently. It is that of Bryant v. Lefevre (40 L. T. Rep. N. S. 579). The plaintiff and the defendants were occupiers of adjoining houses. For more than twenty years the occupiers of the plaintiff's house had enjoyed the access of air to the chimneys of it. The defendants took down their house and rebuilt a wall to a greater height, thereby causing the plaintiff's chimneys to smoke. The plaintiff thereupon brought an action against the defendants for a nuisance, and the jury found the erection of the defendants' wall materially and sensibly interfered with the comfort of human existence, and assessed the damages at £40, whereupon Lord Coleridge directed judgment to be entered for the plaintiff, and the defendant now appealed. It was contended for the defendant in the Court of Appeal that the case of Webb v. Bird (10 C. B. N. S. 268; and 13 C. B. N. S. 841) was practically conclusive of this case, and that upon its authority the defendants were entitled to judgment. The Court were of the same opinion, and that, apart from that case, upon principle the defendant was entitled to succeed

In Webb v. Bird it appeared that the plaintiff's windmill was built in 1829. The defendant, in 1859 and 1860, built a schoolhouse within twenty-five yards from the mill, which obstructed and diverted the currents of air that would otherwise have passed to the mill. The Court of Common Pleas held that, as the plaintiff's mill was erected within time of legal memory, and there was no express grant, he could not prescribe under the

Prescription Act, because the easements contemplated by the second section were only such as were capable of interruption. The Exchequer Chamber agreed with the Common Pleas that the right to the passage of air was not a right to an easement within the meaning of the Prescription Act, sect. 2; and, further, that the claim could not be supported upon the presumption of a grant arising from the uninterrupted enjoyment as of right for a certain term of years, because they thought, in accordance with the judgment of the Court of Common Pleas in the case before them, and of the House of Lords in Chasemore v. Edwards (7 H. of L. Cas. 349), that the presumption of a grant from longcontinued enjoyment only arises where the person against whom the right is claimed might have interrupted or prevented the exercise of the subject of the supposed grant.

In his judgment, Chief Justice Erle says: "I am at a loss to conceive what would be an interruption of such a right as is here claimed. In the case of a way the exercise or enjoyment of the right may be interrupted by the erection of a gate or other impediment. So of the analogous right to water; so a claim to lights may be obstructed or interrupted by the erection of hoarding or other screen by the owner of the servient tenement. But I am utterly unable to see how the access of currents of wind and air to a mill, which is necessarily so constructed as to present its face to whatever quarter the wind may blow from, could possibly be interrupted."

The similarity of that case to the present one is marked, and it is obvious that the same principle is applicable.

In the case of Roberts v. Macred (1 Mo. & R. 230), which was cited by Lord Justice Bramwell in his judgment, a similar claim was disallowed. There the defendant, in justification of a trespass for breaking down a wall, pleaded that the wall obstructed the passage of light and air to his timber yard and sawpit. In giving judgment, holding that the claim could not be allowed, Mr. Justice Patteson said: "If such a plea could be sustained it would follow that a man might acquire an exclusive right to the light and air, not only (as heretofore) by having been suffered to build on the edge of his property, and suffered for a certain space of time to enjoy that building without interruption, but merely by reason of having been in the habit of laying a few boards on his ground to dry."

In his judgment in the present case, Lord Justice Bramwell pointed out that the owner or occupier of a piece of land had a right to have all natural incidents and advantages as nature would produce them; thus "a right to all the light and heat that would come, to all the rain that would fall, to all the wind that would blow; a right that the rain, which would pass over the land, should not be stopped and made to fall on it; a right that the heat from the sun should not be stopped and reflected on it; a right that the wind should not be checked, but should be able to escape freely. But these natural rights are subject to the rights of adjoining owners to use their property in the various ways in which property is commonly and lawfully used. A hedge, a wall, or fruit tree would each affect the land next to which it was planted or built. They would keep off some light, some air, some heat, some rain when coming from one direction, and prevent the escape of it when coming from the other. But nobody could doubt that in such a case no action would lie, nor will it in the case of a house being built and having such consequences. Such being the case now, is it altered when the plaintiff relies on a twenty years' enjoyment of the flow of air as showing a prescriptive title or title by lost grant? Not at all. The right cannot certainly be claimed under the Prescription Act. The lost-grant doctrine is ancillary to the common law prescription doctrine. The owner of the land had the right to all the light, air, and heat that would fall on it, subject to such interference as would be caused by his neighbour using his land in the ordinary way. The fact that a house was built on the land does not make any difference. If his house was less commodious by any reasonable act of his neighbour done on the adjoining land, then "it was his folly to build his house so near to the other's land." The learned judge went on to point out the difference between the position of a landowner who wishes to defend himself against a claim to the uninterrupted enjoyment, of light and one who wishes to defend himself against a claim to the uninterrupted flow of air. In the former case the right is always limited to the particular aperture or window through which the light and air have had access; it is one therefore against which an adjoining owner can defend himself by blocking it up within the period necessary for gaining a right, but in the latter case the owner would be obliged to surround the land with erections as high as it might at any time be wanted to build on the land. With regard to the smoke being a nuisance, it was caused by the plaintiffs themselves, and they might avoid it either by ceasing to light their fires or raising their chimneys higher.

The decision leaves nothing to be desired on the score of clearness, and the principles laid down are plain and consistent, not only with authority, but good sense. At first sight the decision might be thought to confer a right of raising the height of premises, which if exercised unreasonably might lead to great inconvenience in large towns. This, however, must not be forgotten, that in many cases an alteration in height which

effects a diminution in the flow of air at the same time affects the amount of the light to which an adjoining house is entitled, in which case the law relating to easements of light (which Mr. Justice Willes said was anomalous), and which is very different to that of air, comes into play.

GIFTS TO SOCIETIES AND MECHANICS INSTITUTES BY TESTATORS.

THE decision of the Exchequer Division in Re Dutton, Ex parte Peak and another (40 L. T. Rep. N. S. 430) is of general interest, and not least to the members of various institutions and societies throughout the country. This was an appeal from the decision of the judge of the County Court of Staffordshire holden at Tunstall. From the facts stated it may be gathered that the Tunstall Athenæum and Mechanics Institution was established and maintained by the donations and subscriptions of its members for the purpose of providing a lending and reference library, reading room, and lectures, for the use and mutual improvement of the members. By the rules of the institution all the property of the society was vested in the trustees thereof for the time being, and the institution was not to be dissolved except by the resolution of nine-tenths in number of the members present at a specially called general meeting, to be confirmed by a like resolution at a subsequent meeting of the same character. There was no building fund in connection with the institution, but there was a sinking fund established to pay off a mortgage on the premises occupied by and the property of the institution. A testator bequeathed a sum of money "unto the trustees for the time being of the institution, to be applied by them towards the building fund in connection therewith." The trustees presented a petition praying that the money should be paid to them to be applied in accordance with the directions of the testator's will. The County Court judge, however, held that the testator's gift was void under the 9 Geo. 2, c. 36, as being a bequest of money to be laid out in land for a charitable purpose, and directed that the money should go to the next of kin. The trustees appealed. A rule nisi was obtained calling on the surviving executor and next of kin of the testator to show cause why the judgment or order of the County Court judge should not be set aside, and an order made in the terms of the petition on the ground that the institution was not a charity, and that the gift was not void for perpetuity, or on the ground that, if the institution was a charity, the gift was not void under 9 Geo. 2, c. 36. Many cases were cited both for and against the claim of the trustees. We shall now briefly refer to the more important.

The testator by his will in Thompson v. Shakespeare (1 L. T. Rep. N. S. 398) bequeathed to his executors £2500 out of his personal estate, to be laid out by them as they should think fit," with the concurrence of the trustees of Shakepeare's house, already sanctioned by me, in forming a museum at Shakespeare's house in Stratford, and for such other purpose as my said trustees in their discretion shall think fit and desirable for the purpose of giving effect to my wishes." The testator also directed that £60 a year, for the purpose of paying a keeper or guardian of the museum, should be a charge upon a freehold estate belonging to him. Vice-Chancellor Wood held that the former bequest was void for uncertainty, and that the latter was void under the Statute of Mortmain. In the earlier case of Thompson v. Thompson (1 Coll. 396) the testator provided a sum not exceeding £50 a year for a literary annuitant. The grantee was to be at least forty years of age, and a believer in Christianity. The object of the testator was to give assistance to worthy literary men who had not been successful in their career, and as far as possible to enable them to assist in extending the knowledge of truth. ViceChancellor Knight Bruce, considering that the testator intended a dissemination of the truths of religion in such a manner that they might be beneficial to all, construed the gift as meaning a charitable gift.

Lord Campbell examined the above decision of Vice-Chan cellor Wood in Carne v. Long (2 L. T. Rep. N. S. 552). L. devised all his freehold mansion house and premises situate in Penzance" unto the trustees for the time being of the Penzance Public Library for ever, for the use, benefit, maintenance, and support of the said library." This library was supported by the subseriptions of the inhabitants of Penzance for the purpose of purchasing and preserving books for the use of subscribers only, and not of the public. By the rules of the society strangers were to have access to the library for one month; and whenever the number of subscribers should be reduced below ten, all donations were to be returned to the donors or their representatives who might claim them, and the remaining books sold and the proceeds appropriated to the foundation or support of some scientific institution in the town of Penzance. Vice-Chancellor Stuart held that the library was not a charitable institution within the meaning of the Mortmain Acts, and that the devise was valid. On appeal to Lord Chancellor Campbell, his Lordship felt a strong opinion that the case fell within the rule of Thompson v. Shakespeare. He was inclined to agree with the court below that this was not a charity within the Statute of Mortmain, but he did not think it was so necessary to struggle against the application