The Law Times

THE Judges to try the election petitions in
Ireland will be the senior puisne Judges in
the courts of law, Mr. Justice KEOGH, Mr.
Justice O'BRIEN, and Baron FITZGERALD.

THE following names have been submitted for

Her MAJESTY'S approval for promotion to the

rank of Queen's Counsel:-JAMES MONCREIFF,

Esq., Dean of the Faculty of Advocates in

Scotland; the Right Hon. EDWARD STRATHEARN

GORDON, Lord Advocate of Scotland, Member

of the Faculty of Advocates; GEORGE YOUNG,

Esq., Member of the Faculty of Advocates;

and JOHN MILLAR, Esq., Member of the Faculty

of Advocates, and Solicitor-General for Scot-

land.

MR. HI. R. COURTENAY and Mr. FLEMING,
Barristers-at-Law, have been appointed sub-
inspectors under the poor-law department, for a
15 limited period, in consequence of some addi-
16 tional inspection being required in the metro-
politan and manufacturing districts.

Liverpool Court of Bankruptcy

CORRESPONDENCE OF THE PROFESSION

NOTES AND QUERIES ON POINTS OF PRACTICE.

THE LAW LIBRARY:-

THE HON. CHARLES R. BOURKE has been ap-

17pointed Inspector of Prisons in Ireland.

THERE is much speculation in legal circles in

Dublin as to the course the Government will

take with respect to the Solicitor-Generalship,

which when the writs issue will become once

19 again vacant by the elevation of Mr. R. WARREN

the Bench, Dr. BALL then becoming

VOL. XLVI.-No. 1336.

Attorney-General. So rapid has promotion

been of late among Irish Conservative lawyers

that the competition for the junior place,

which leads with such apparent certainty to

the goal, is more than ordinarily animated.

Since the Conservative ministry came into

power, they have appointed to seven judicial

posts in Ireland, and this has greatly thinned

their ranks of men eligible for promotion. They

have filled, besides appointing Mr. BREWSTER

to the Lord Chancellorship, the place of a Lord

Chief Justice, of a Puisne Judge, of a Vice-

Chancellor, a Master of the Rolls, a Judge of the

Ecclesiastical Court, a Judge of the Court of

Probate, and a Judge of the Court of Bank-

ruptcy.

LORD ROMILLY has sent the Hampstead-heath
case before a court of common law. His lord-
ship has drawn up ten formal questions, each of
which will have to be weighed and answered by
the jury, and which may be briefly summarised
thus: Have the Hampstead copyholders common
of pasture over the heath? Are they entitled
to cut heather and gorse, and to dig sand,
gravel, and loam? May they indulge in
the recreations of walking and riding over
the heath? Can the lord of the manor
grant new copyholds, or inclose any portion of
the waste without the consent of the Homage?
Can the lord of the manor dig or carry away
more gravel or sand than he requires for his own
demesnes? And, finally, if a proportion of
these questions are answered in the affirmative

Has a sufficient portion of the common ground

been left by the lord of the manor for the

copy holders' enjoyment of their rights. Lord

ROMILLY was careful to say that he had re-

frained from expressing any opinion of his own

upon these points, as they were now to be left to

a jury.

MR. ARNOLD, the police magistrate, has given
his decision on the question whether a cottage
bread." He has decided that it does, as being
loaf comes under the definition of "fancy
manufactured of a superior description of flour.

THE DISSOLUTION.

THIS is now finally appointed for Wednesday
next, the 11th, and the Gazette will contain the
proclamation on that day. The same evening
inail will carry the writs to the returning officers,
who will proclaim them on Thursday, and in the
greater number of the boroughs the nomination
will be appointed for the following Monday, and
the polling for Tuesday. By Wednesday morn-
ing at the latest three-fourths of the borough
contests will be determined, and the character
learned of the Parliament that is to carry out a
revolution, the greatest that ever yet was ac-
complished peaceably.

MR. GLADSTONE ON FEMALE RIGHTS.
Ir is satisfactory to find that the proximate
Premier approves the extension of the franchise
to independent women, who would be qualified
but for the exclusion of their sex, and who are
now competent voters in parish elections. More-
over he is favourable to giving to the property
of married women more protection from the law

than it now enjoys. In a letter to an applicant for his views on the question he says:

Pray be good enough to inform my constituents on whose behalf you write that I am favourable in general to an effective protection of the earnings of married women, and that I think it deserves consideration in what way property in female hands can advantageously represented in the constituencies. Beyond these points I must ask to reserve my full discretion.

MR, JUSTICE BYLES AND THE TIMES. Ir is difficult to conceive who the individual can be who "inspires" the Times on legal matters. Curiously enough, upon the same day appeared the article to which we have elsewhere alluded, on the subject of the increase of the judicial power of the Bench, and another which attacked the conduct of Mr. Justice BYLES in the most extraordinary and uncalled for

manner.

The facts are simple, and never were facts more conclusive in their logic. Lord DUDLEY was an important witness at the Central Criminal Court in a prosecution for felony. He was under recognisances to appear. Being misled as to the time when his attendance would be absolutely requisite his Lordship was absent when called. The Judge thereupon expressed his determination to treat the Earl as he would treat anybody else: in reality he dealt with him more severely than he would have dealt with an ordinary person, for as the clerk of arraigns informs the public in a letter which the attacking journal consigned to a corner in very small type-the attack on the Judge having taken the prominent form of a leader-the Earl was called upon to pay the expenses caused to the public and the parties by his absence. "Those expenses," says the clerk, "I taxed and ascertained on Friday at a sum larger in amount than the forfeited recognisance, and on the same day, at the conclusion of the trial, Mr. Justice BYLES made and signed in my minute book the order for the estreat of the recognisance unless Lord DUDLEY paid the larger amount of the expenses as ascertained by me. The Judge has therefore exercised upon Lord DUDLEY all the power given to him by law, by ordering the recognisance to be estreated, and has 'suggested' that his lordship should pay even a heavier penalty than the law imposes."

Now, the Times "shudders to think of the tempest of vindictive passions" which must have raged in the bosoms of the jurymen "when they found themselves made close prisoners to suit Lord DUDLEY'S convenience." Had the jurymen been of the temper of the writer in the Times, doubtless their vindictive passions would have assumed the form of personal violence when his Lordship made his appearance on the following morning. But the truth is that Lord DUDLEY had done what any 66 common person might have done, and indeed often does. Acting under a misapprehension, he had failed to attend at the right time. As reported by the Times, his Lordship said to Mr. Justice BYLES that "he hoped he might be allowed to express his regret that the business of the court had been interrupted and the jury inconvenienced by his absence on the previous day. He had already been put to great inconvenience in this matter, and should not have shrunk from undergoing more in the interests of justice, but he had been led to believe the trial would not commence until that morning, and that was the explanation he had to offer. It was a source of great regret to him that the business of the court had been delayed by his absence." What more could be said? Was Mr. Justice BYLES thereupon to reprimand the Earl for what was merely a mistake, albeit an inconvenient and tiresome mistake so far as the jury were concerned? Had such an explanation come from a mon person," it must have been accepted by the presiding judge if made with any show of good

faith.

com

But the gravamen of the charge against the learned Judge is that one day, in the absence of Lord DUDLEY, he was stern and threatening, and the next, in the presence of Lord DUDLEY, mild and "playful." The following extract from the Times' report shows Mr. Justice BYLES in his threatening attitude :

Mr. Justice Byles asked if Lord Dudley was under subpoena.

Mr. Serjeant Sleigh replied that his Lordship had been before the grand jury, and was under recognisances as a witness.

Mr. Justice Byles.-Well, for the present we shall proceed. I shall deal with Lord Dudley as I should with anybody else. At the proper time I shall call him on his recognisances.

We may not have the keen perceptive faculty of the Times, but we must confess we see nothing very terrible in the learned Judge's expressions. When Lord DUDLEY did appear and make the elaborate apology quoted above, the Times thus reports he scene:

Mr. Justice Byles said his Lordship might not know that the undertaking by him to bear the attendant expenses was to his disadvantage, seeing that they would not be less, but a little more, than his recognisances, if estreated. Lord Dudley, with much earnestness and courtesy, again expressed his regret for the inconvenience his absence had occasioned.

Mr. Justice Byles (playfully). That does not quite tend to your Lordship's exculpation, seeing that you have had a great deal of judicial experience.

Lord Dudley, smiling, said he would only add that he ought to have known better. The subject then dropped, and his Lordship left the court.

Now the Times remarks that "even if the Judge had not taken pains to announce that he was going to act impartially, we should certainly have expected that, when next day Lord DUDLEY did at last come into court, he would be called on to give a satisfactory explanation of his previous absence, and, if he failed to do this, would receive a severe reprimand from the Bench, on account of the discomfort to which his regard for his own private convenience had subjected twelve brother Britons in the discharge of an irksome and important public duty, and would have his recognisances formally estreated.'" Therefore it is clearly simply a matter of opinion whether Lord DUDLEY's explanation was satisfactory. If satisfactory, the reprimand, upon the showing of the Times itself, was unnecessary. The further penalty is the estreatment of recognisances. Lord DUDLEY paid a penalty in excess of this. Upon the latter point, as the clerk of arraigns points out, the Times was ignorant of the actual facts. Upon the other matter of the reprimand a profuse apology and expression of deep regret that misinformation given to Earl DUDLEY had caused inconvenience necessarily swayed the Judge in favour of the delinquent. Under such circumstances a reprimand such as the Times required would have been ungentlemanly on the part of the Judge, and a bid for that sort of popularity which the Times appears to covet. For our own part we shall regret very much should the time ever arrive when a reasonable explanation fails to meet with the courteous consideration of the Judges.

THE ECONOMY OF JUDICIAL POWER. PERSONS have been found, says the Times, bold enough to assert that more economical arrangement of the judicial force hitherto at command might have diminished or postponed the necessity for the recent numerical increase. And the Times adds, on its own behalf, that there can be little doubt that the present arrangements are defective, and that without other reforms the augmentation of the judicial staff will have but a temporary power to arrest the evil complained of.

The above opinion being so prominently stated, it is desirable that we should see clearly upon what foundation it rests. Looking closely into the article appearing in our contemporary, we find it suggested that economy in judicial power would be promoted by the establishment of a Patent Court, and a reduction of the number of judges usually sitting in banco. Upon the first point we cannot agree. It is well known that patent business is not what it has been. At the present moment there is but a single patent appeal before the Privy Council and if the equity and common law cause lists were closely examined, we believe it would be found that there would not be work sufficient to occupy the ordinary time of a special court. Certainly the last term we saw the Nisi Prius Court of the Common Pleas blocked by a great case, but had Mr. Justice BRETT been at that time upon the bench, the despatch of business would have been carried on with the same facility as if there had been a special court.

Then as to the sittings in banco. The old argument is brought forward. "If a plurality of Judges is necessary at common law, it must be necessary in courts of equity likewise. But if

in the Court of Chancery a single Judge is found adequate for the administration of the ordinary jurisdiction, it is a waste of power to require the assistance of more than one as the rule in the courts at Westminster." With respect to this frequently repeated observation, we may say, once for all, that we doubt very much whether a single judge in equity is found satisfactorily adequate. It will be found upon examination that the business of the Court of Appeal in Chancery is vastly larger than that of the Court of Appeal in Common Law, that is to say, the Exchequer Chamber. The Court of the Exchequer Chamber has, unfortunately, not the best of reputations, and the really important question as regards the economy of judicial power is whether that Court of Appeal should not be abolished. If it were, and if there were always an attendance of three Judges in banco, it might be regarded as carried to the House of Lords. Our concertain that comparatively few causes would be temporary admits that "within certain limits the greater the number of judicial minds that can be brought to bear on the examination of really difficult points of principle-the longcontroverted questions which are ripe for final settlement by a Court of Appeal-the more satisfactory will be the conclusion." And then it adds, "but one is as good as five for the decision of the great mass of original matters which come before a court of law." What would our contemporary do? Would he have a classification? And if so, who should be the judge of the importance of each particular matter? Practical experience teaches that frequently litigation is checked at the outset by the authoritative judgment of a full court of first instance, and we do not see how matters could be better managed than they are at present. We think, indeed, that it might be much more satisfactory if the Equity Courts were constituted on the model of the Courts of Common Law.

It is suggested that if some internal reforms do not take place, the increase of business will necessitate a still further addition to the Bench. We have said that we cannot see what reforms are practicable, and in conclusion, we agree with the Times that "the parsimony which stunts the judicial resources of a nation is the grossest national extravagance."

THE RIGHT TO NAMES AND
TRADE MARKS.

PUBLISHERS and others are frequently in doubt as to their right to names which they have adopted, and as to their remedies against those who, they imagine, have infringed upon the assumed right.

In the first place it may be remarked, as stated by Wood, L. J., in a case which appears in our reports this week, that there is nothing analogous to copyright in the name of a newspaper, but the proprietor has a right to prevent any other person from adopting the same name for any other similar publication. This remark is not confined to publications. In the Anatolia liquorice case, Lord Westbury said that property in a word could not exist. It is only when a word is attached to an article actually on the market that it becomes a part of the property possessed in the article. And therefore, we think it may be said, with a fair chance of escaping contradiction, that the application of the same name to a description of article different to that already upon the market under that name, would be protected. indeed, a case in Paige's American Reports in which two daily journals bore the same big black letter heading, but over the one was the bird of Jove. And the Court of Chancery there said that the one paper could not be mistaken for the other because of this distinguishing bird. This case goes about as far as it is possible to go.

There is,

So as regards goods. The Lord Chancellor, in The Leather Cloth Company v. The American Leather Cloth Company (9 L. T. Rep. N. S.) says, at p. 563: "It has been pressed upon me that there is no property in a trade mark, and that the right to relief is merely personal, founded on the fraud that is committed when one man sells his own goods as the goods of another. It is true that the cases contain expressions by eminent judges that there is no property in a trade mark, which must be understood to mean that there can be no right to the exclusive ownership of any symbol or mark universally in the abstract. Thus, an ironfounder, who uses a particular mark for his manufactures in iron, could not restrain the use of the same mark

« Edellinen Jatka »

-kirjat

The Law Times, Nide 46