WHEREAS application has been made to the Court by the said Owners, for an Order, pursuant to Section 14, Subsection 1, of the Land Law (Ireland) Act, 1887, that the amount of the advances sanctioned in this Matter in respect of Sales to the Tenants of the lands set forth in the Schedule hereto (or parts thereof), less the amount of the guarantee deposits, be paid into the Bank of Ireland, to the account of the Irish Land Commission and credit of this Matter, aid that the claims of all persons (except the tenants or persons claiming under them) who are interested in the lands sold, whether as incumbrancers or otherwise, shall attach to the purchase-money of such lands in like manner as immediately before the sales they attached to the lands, and shall cease to be of any validity against the lands.

And whereas the said Owners claim to be seized of the said lands in fee simple, subject only as is mentioned in the Originating Statement in tl.is Matter, filed the 19th day of January, 1888

Let all parties Take Notice that the said Application will come before me to report upon on Wednesday, the 1st day of October, 1890, at my Chamber, 24 Upper Merrion-street, Dublin, at Eleven o'clock, and will come on for hearing before Mr. Commissioner LYNCH, at his Court, Upper Merrion-street, aforesaid, on Monday, the 6th day of October, 1890, at Eleven o'clock in the forenoon, when a Final Order will be made, and all persons are at liberty to inspect the said Originating Statement at my Office, and any person, for any valid reason, objecting to such Order being made, may enter an appearance in the Matter, and file an Affidavit of Cause against the said Order being made, and appear upon the hearing of such application.

And Further Take Notice that, immediately on the making of such Order, the Court will proceed to vest the several holdings in the purchasing tenants thereof, and to charge the said holdings with the annuities in respect of the said advances.

WHEREAS application has been made to the Court by the said Owner for an Order, pursuant to Section 14, Subsec. 1, of the "Land Law (Ireland) Act, 1887," that the amount of the advance sanctioned iu this Matter, in respect of sales to the tenants of the Lands of Kilgad and part of the Lands of Tawnybrack, situate in the Barony of Lower Antrim and County of Antrim, less the amount of the guarantee deposit, be paid into the Bank of Ireland to the account of the Irish Land Commission and credit of this Matter, and that the claims of all persons (except the tenants or persons claiming under them) who are interested in the lands sold, whether as incumbrancers or otherwise, shall attach to the purchase-money of such lands in like manner as immediately before the sales they attached to the lands, and shall cease to be of any validity against the lands.

And whereas the said owner claims to be seized of the said lands in fee simple, subject only as is mentioned in the Originating Statement in this Matter, filed the 17th day of May, 1889.

Let all parties Take Notice that the said application will come before me to report upon on Wednesday, the 1st day of October, 1390, at my Chamber, 24 Upper Merrion-street, Dublin, at Eleven o'clock, and will come in for hearing before Mr. Commissioner LYNCH,

at his Court, Upper Merrion-street, aforesaid, on Monday, the 6th day of October, 1890, at Eleven o'clock in the forenoon, when a Final Order will be made, and all persons are at liberty to inspect the said Originating Statement at my Office, and any person for any valid reason objecting to such Order being made, may enter an appearance in the Matter, and file an Affidavit of Cause against the said Order being made, and appear on the hearing of such application.

And Further Take Notice, that immediately on the making of such Order the Court will proceed to vest the several holdings in the purchasing tenants thereof, and to charge the said holdings with the annuities in respect of the said advances. Dated this 15th day of July, 1890.

HENRY C. LYNCH, Chief Clerk.

Undertake to supply new 14 in slate bed full size solid mahogany Billiard Tables of guaranteed workmanship and finish, replete with every modern improvement and requisites of the value of £10, delivered and fixed for £60; or freight paid to any Colonial Port for £70. Undersize, French, and Magic Billiard Dining Tables from £6 68. New Billiard, Pool, or Pyramid Balls, full size, real Ivory, from 10s. Supr West of England Cloths for full size Tables and Cushions. from 628. 6d. Cues (well seasoned Ash). 18.; ditto, supr hardwood butted, 28.. 2s. 6d., 38, 38. 6d., 48., 48. 6d.; Ebony butted, 58. Cue Cases, 2s. 6d. and 38. Cue Tips (best quality only), 18., 18. 2d., 18. 4c., and 18. 6d. per box of 100. Cue Tip Chalks, 18. per gross. Restuffing Cushions with Rubber, warranted not to get hard in any climate, £8 10s. Adjusting and Colouring Balls, 8d. Price Lists, Cloth and Cushion Rubber Samples, post free. Every kind of Billiard Work executed with despatch, carefully and at moderate charges. Billiard Rooms fitted throughout; distance no object. Colonial and Shipping Orders promptly attended Estab. 1862. Cut out and preserve for future reference.

to.

173

CLAIMS TO PROPERTY_WILLS AND DEEDS.

Genealogy, Pedigrees, &c., investigated.

Searches made in all Public Offices and Courts, for Wills, Deeds,
Judgments, Writs, &c. Cash in Chancery, &c.
NEXT-OF-KIN.

INFORMATION, &c, FURNISHED AS TO LEGACIES. Births, Deaths, and Marriages searched for. Copies and Certificates

29

Supplied

TERMS MODERATE.

WANTED. The Name of Soi.itors or Agents who

were acting, in or about the year 1861, or previous thereto, for SAMUEL POOLE or JAMES POOLE, deceased.

Please communicate with GERALD R. FITZGERALD, Solicitor, 102 28 Stafford-street, Dublin.

AND

VOL. XXIV.

JOURNAL.

LEGAL RIGHTS UNDER ILLEGAL CON-
TRACTS.-II,

THAT "any compromise of a misdemeanour, or, indeed, of any public offence, is illegal," was the broad doctrine laid down by Tindal, C.J., in Keir v. Leeman, 9 Q. B. 371. But, in the previous case of Fallowes v. Taylor (7 T. R. 479) the settlement out of court of an indictment for an obstruction to a river, preferred by a public body, was held to be a lawful consideration for a bond binding the defendant to remove the nuisance. While, in a case later than either of them, we find Lord Justice James observing: "This is one of those misdemeanours where the person injured has the choice between a civil and a criminal remedy. It is no more a violation of the law, to accept an apology in such a case, than it would be to compromise an indictment for a nuisance, or for not repairing a highway, on the terms of the defendant's agreeing to remove the nuisance or repair the highway. Offences of this kind are indictable, but it is not against the policy of the law to allow the injured person to enter into a compromise with regard to them: " Fisher v. Apollinaris Company, L. R. 10 Ch. 297. Those observations are obviously irreconcilable with Keir v. Leeman, where no less obviously it was considered that the principle laid down extended to the compromise of nuisances where the public law was violated.

Fullowes v. Taylor, however, could scarcely be regarded as a binding authority in the face of the comments of the Exchequer Chamber in Keir v. Leeman; and as to the observations of James, L.J., in Fisher v. Apollinaris Company, it is to be observed that they were not necessary to the decision of the case, while Keir v. Leeman was not there referred to, nor did Mellish, L.J., express any concurrence with the obiter dicta of James, L.J.

In the recent case of Windhill Local Board of Health v. Vint—itself a case of compromise of an indictment for nuisance this conflict of opinion was passed under review, and a sound decision appears to have been arrived at on the important question so involved. There the action was brought by the Windhill Local Board for specific performance of a covenant in an indenture dated November 9, 1880, or in the alternative for damages for breach of the covenant. The defence was that the covenant was entered into for an illegal consideration. At the Leeds Summer Assizes in 1880, the defendants were indicted on the prosecution of the plaintiffs for obstructing a highway called Gaisby-lane, within the district of Windhill, in the county of York, and a certain footpath leading into Gaisby-lane, by digging and excavating a stone quarry to a great depth for the whole width of the said highway. The defendants pleaded "Not guilty," By a memorandum

No. 1,227

in writing, signed by the solicitors for the plaintiffs and defendants respectively, and initialled by their respective counsel, and dated August 4, 1880, it was agreed (subject to the approval of the court) between the plaintiff Board and the defendants—(1) that the defendants should, within the term of seven years from the date of the memorandum, restore Gaisby-lane between certain points and make such road at least ten yards in width; (4) that on the foregoing conditions the Board would concur in any necessary steps for stopping up a certain footpath (being the footpath referred to in the indictment); and (5) that the said indictment should lie in the office as a security for the observance of the terms in statement, which should also, if required by either party, be embodied in a deed between the Board and the defendants and George Vint, the father of the defendants, and that when the said terms were fulfilled a verdict of "Not guilty" should be consented to by the plaintiff Board. At the trial the Court approved of the terms contained in the memorandum, and ordered that the indictment should lie in the office accordingly. The provisions of this memorandum were embodied in an indenture of November 9, 1880, which contained a covenant by the defendants to restore Gaisby-lane within the term of seven years to be computed from August 4, 1880, and to make such road of the uniform width of ten yards at the least. The seven years elapsed without the defendants having restored the highway, and accordingly this action was commenced. The evidence showed that there was no real defence to the prosecution. Mr. Justice Stirling, following Keir v. Leeman, and refusing to adopt the dictum in Fisher v. Apollinaris Company, held that an agreement to compromise an indictment for nuisance is not less illegal than an agreement to compromise a prosecution for any other criminal offence; and accordingly, that the agreement was founded on an illegal consideration, and could not, therefore, be enforced.

The decision so rendered is reported in the Law Times of July 19th, and is commented on in the issue for July 26th. But from the Times of July 18th we learn that an appeal was taken by the plaintiffs, on whose behalf it was argued that this was not an agreement to stifle a prosecution because it did not stipulate for any private benefit to the prosecutors, and further, that an agreement of this nature was not illegal unless the intention or effect of the agreement was to prevent the object of the law being obtained. Cotton, L.J., however, refused to accede to those arguments. The course of the law had been interfered with, because the prosecutors had taken the matter into their own hands, and prevented the prosecution from being conducted in the ordinary way; and the question was not merely whether in any particular case any evil to the public would or would not result. "The law," observed

Fry, L.J., "as laid down in Keir v. Leeman by the Court of Queen's Bench, was that there could be no valid agreement to compromise an offence of a public nature, and that principle was affirmed by the Court of Exchequer Chamber. It was said that this principle did not apply where the benefit secured by the agreement was a benefit for the public, but there was no such exception to the rule. Then it was said that the agreement was valid if the object of the prosecution was carried into effect. But the prosecution had been removed from the cognisance of those to whom the administration of justice was intrusted. The Judge

might have shown his sense of the defendant's conduct by inflicting a fine or term of imprisonment. This agreement had diverted, if it had not perverted, the course of justice." And Lopes, L.J., also concurring in holding that the case was governed by the broad principle laid down in Keir v. Leeman, the appeal was dismissed. No doubt the plaintiffs had never intended by the agreement to do anything unlawful, and in all probability entered into it solely in order to avoid the appearance of harsh conduct on their part, as a public body initiating the proceedings; but, as Lopes, L.J., put it, as a general principle it is the duty of a prosecutor, where the public are interested, to prosecute either to conviction or acquittal, and as a general principle it is inexpedient to stop the course of the law in a public matter." The plaintiffs failed to establish any legal right to enforce their illegal agreement, and the decision will supply a valuable practical lesson to prosecutors in general,

66

CHARGING ORDERS FOR COSTS.

The

The courts are ready to give a wide meaning to the words" property recovered or preserved," in respect of which solicitors can obtain a charging order for their taxed costs, charges, and expenses. Moron v. Sheppard (62 L. T. Rep. N. S. 726; 24 Q. B. Div, 627) shows that they have no narrow meaning. The defendant had been allowed to defend under Order XIV., on condition that he brought the whole amount claimed into court to abide the event, which he accordingly did. plaintiff and defendant compromised the action without the knowledge of the plaintiff's solicitors, and without having made any provision as to their costs, and the plaintiff then discharged them. They then applied, under the 28th section of the Solicitors Act, 1860, for a charging order on the sum in court. Mr. Justice Lawrance affirmed the master's order giving the charge, and the defendant appealed, contending that the money in court was not "recovered or preserved," and that, as it was payable under the compromise to the defendant, it could not be charged with payment of the costs of the plaintiff's solicitors, but that they must look to the plaintiff for payment. Baron Huddleston and Mr. Justice Grantham dismissed the appeal, the former saying, "No doubt money cannot correctly be said to be recovered' before judgment has been given, but this money was in process of recovery at the instance of the plaintiff's solicitors out of the defendant's estate. The defendant was unable to get rid of it after it had been brought into court, and it seems to me to have been, at all events, preserved' within the meaning of the Act of Parliament." It has been held that there must be some recovery or preservation of the property, and mere dealing with it is not sufficient. In Pinkerton v. Easton (29 L. T. Rep. N. S. 364; L. Rep. 16 Eq. 490) the usual administration decree, and an order for the appointment of a new trustee, had been made, when the plaintiff stopped all further proceedings in the suit before the

chief clerk had made his certificate, and no trustee was appointed. Lord Selborne, sitting at the Rolls Court, refused to give the plaintiff's solicitor a charge on the plaintiff's interest in the property the subject of the suit, as no property had been preserved.-Law Times.

MECHANICAL EQUIVALENTS.

66

"Half the controversies in the world," says Cardinal Newman, are verbal ones, and could they be brought to a plain issue they would be brought to a prompt termination." The case of Moore v. Thomson, in which the House of Lords gave judgment last week, offers an excellent illustration of the great dialectician's aphorism. The doctrine of "mechanical equivalents" has had a place in English patent law at least since 1836, but the application of that doctrine has given rise in recent years to some difficulty. Thus, in Gosnell v. Bishop (1888, 5 P. & R. 156), the owners of a patent for improvements in trouser-stretchers brought an action for alleged infringemeut, which the defendants d-nied. It was held that the defendants' stretchers, althongh obtaining the same result as those of the plaintiffs, obtained it by different meaus, aud were a development beyond what was to be found in the plaintiffs' specification. At the same time, the principle was impliedly affirmed that "mechanical equivalents may not be an infringement where a patent is oly for an improved method of attaining an old object.' Now the words old object are clearly capable of two interpretations, They may mean either au object which has long been sought for, or an object which has long been obtained. Moore v. Thomson has brought this ambiguity at once "to a plain issue" and "to a prompt termination." In 1876 Sir William Thomson, the well-known professor of natural philosophy in the University of Glasgow, patented an improved compass card which has admittedly remedied the leading defects of it predecessors. The objects which it attains-viz., diminution of friction resulting in increased sensitiveness and accuracy, small magnetic moment and consequent amenability to the ordinary system of maguetic correctors, and steadiness in stormy weather-are, how. ever, "old" in the sense that they have long, though unsuccessfully, been pursued. The House of Lords, affirming the judgment of the Irish Court of Appeal and reversing that of the Irish Master of the Rolls, have now decided that a combination of results long sought for, but never previously attained, is a new, and not an old, result, and that in such a case the doctrine of mechanical equivalents must be applied.-Law Journal.

TRUST COMBINATIONS.

The growth of trusts, unions, and other combinations necessarily tending more or less to the restraint of trade, involves a problem which in this country is becoming extremely serious. It cannot be supposed that the preseut condition of the law will be allowed to remain ondisturbed or unchallenged, and dealing with the subject in the light of public policy, it is interesting meanwhile to notice the decision of the New York Curt of Appeals in the case of what is known as the Sugar Trust. Judge Barrett's judgment in this celebrated suit has been confirmed, the court holding that the defendant corporation had violated its charter and failed in the performance of its corporate duty to so material and important an extent as to justify a judgment of dissolution. The court prudently declined to advance very far into the wide discussion of monopolies and the problems of political economy thereby sugges el; but, as a New York paper points out, the judges did find that in eutering the combination complained of, the company was doing the public an injury, aud the violation of the statute was considered sufficient to warrant the annulment of the company's charter. The statute under which the charter was granted provides that whenever any corporation shall violate the provisions of any law, or shall have forfeited its charter by the abuse of its powers, the Attorney-General shall bring an action to vacate the charter.

The New York journals are now urging that it will be the duty of the Attorney General to bring a suit against every other New York corporation that has joined the Sugar Refineries Company or Sugar Trust, and that it will also be his duty to proceed in the same way against the several corporatious concerned in the Standard Oil Trust, as well as those that have entered the National Lead Trust. If this course should be adopted, it may be expected that the New York courts will be constrained to express opinions in less restricted terms than those which have been recorded in connection with the Sugar Trust.-Law Times.

MALICIOUS INJURIES TO PROPERTY.

When the legislature in 1861 cousolidated the statutory law as to malicious injuries to property, mauy elaborate details were thought of and provided for. Separate treatment and punishment were allotted to most of the familiar offences, such as injuries to buildings, to factories, to corn and trees and vegetable productions, to fences, mines, and fisheries, to cattle, and to works of art. After exhausting all the prominent offences, the legislature then, by an omnibus clanse, eudeavoured to throw a wide net so as to comprebeud all the other indescribable acts of mischief, and it divided these according to the quantum of mischief done, making two divisions-one dealing with damage done above £5, and the other with damage under £5. The £5 miscreants were declared to commit a misdemeanour, and, of course, to be liable to a corresponding punishment of two years' imprisonment and upwards. The smaller class of miscreants whose acts caused a damage not exceeding £5 were assigned to justices of the peace, who were to distribute punishments not exceeding two months' imprisonment, or a fine not exceeding £5. And the acumen of justices has been exercised to a large extent in solving the intricate points that crop up even in the course of disposing of these petty offences. Weighty points of law, as one soon discovers, may be mixed up in adjudicating on the most trifling charges under the Malicious Injuries to Property Act (24 & 25 Vict. c. 97).

The words in which the general enactment imposed the punishment were very important. The 52nd section says that "whoever shall wilfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is herein before provided, shall, on conviction," &c. These words, at first sight, seem to comprebend nearly every kind of mischief that can be done on this terrestrial globe, and one is apt to think that the man who can escape from one or other of these capacious words and phrases must be a very ingenious person indeed. Hence the notion grows up far and wide that there is no chance of any kind of wickedness escaping punishment so long as it can be said to amount to injury to "property, real or personal;" and the world may be said to consist of very little else than property, real and personal. For everybody lives and moves iu something that is either real or personal property, and nothing else seems visible.

But the unfortunate ingenuity of prisoners, and, above all, of prisoners' lawyers and advocates, has driven coaches and six here and there through the barrier, and one success leads to another, and thereby gradually destroys the faith of owners of property in this their cherished safeguard. A few examples of this perverse ingenuity will be found scattered over the reports within a few years back, and each word aud phrase in the 52nd section will be found to be attacked and deprived of what most people would call its ordinary meaning.

One might remember an early case of R. v. Pembleton, L. R. 2 C. C. R. 119, where some men were fighting in a street, and oue threw a stone intended to hit his antagonist, whereas the stone, instead of hitting him, went against a plate-glass window and shattered it. The court held that this was not an offence within the 51st section, because the jury expressly found that the

defendant did not intend to hit the window but only the enemy, and hence the act was not done maliciously because it was not done intentionally. The 52ad section uses the words "wilfully or maliciously," whereas the 51st section uses the words "unlawfully and maliciously," and something, though, perhaps, not much, should turn on the difference in the language used in these two sections.

A few years ago, according to Eley v. Lytle, 50 J. P. 308, some boys were playing football ou a public highway adjoining some grass fields in a Derbyshire village, in doing which the inhabitants on certain days were only keeping up an old custom, and some of the players rau after the ball and trespassed on the grass to bring the ball back. The owner had specially warned the players against the trespass, but in the excitement of the game some of them disregarded this notice. They were afterwards summoned under the 52nd section for unlawfully and maliciously destroying grass which was the food of beasts. The justices, thinking the trespass was wilfully and persistently done, convicted the defendants. But the Queen's Bench Division had too stroug a sympathy with the familiar game to allow such a decision to stand. The judges said that at most it was only a civil trespass, and the trespass was either inappreciable or, at all events, was not done wilfully.

Another case, arising out of the gathering of mushrooms, occurred in Gardner v. Mansbridge, 51 J. P. 612, where the court had to examine closely the kind of property that was intended by the legislature to be protected by the 52ud section. The mushrooms in this case grew spontaneously in a field, and the defendant was charged with wilfully and maliciously committing damage to certain herbage, mushrooms, and fences on a certain farm. The owner of the farm considered that the yield of mushrooms in this field was worth to him 78. a year, and the defendant was one day found to have helped himself to two shillingsworth of these. The justices held that, as the mushrooms grew wild, the act done did not come within either the section of the statute relating to cultivated roots, or that relating to damage to real property. A case was, however, submitted to the High Court, and, after argument and time taken for consideration, the court held that the justices were right. The court said that no doubt it was enough that an act was done wilfully, but then it must be done to the realty, and not merely to the produce of the realty. There was thus a distinction drawn by the court between land and the produce of the land, and as this distinction rau through various sections of the act it showed that if mushrooms as a produce of the land were not provided for specially, they could not be held to be included in the general word "land." In short, the court held that it was not every trespass and petty injury that could be brought within the protection of the 52nd section.

The next case was one which comes home to every country gentleman, and involved the other side of the question, namely, how far the pettiness of the damage done can be deemed to be an excuse or defence. Ia Hamilton v. Bone, 52 J. P. 726, the prosecutor's premises and the defendant's premises were on opposite sides of a public road. The prosecutor had a fine chestnut tree which partly overhung the road, and little boys going along felt an irresistible fascination in first admiring the blossoms and then throwing stones in order to secure some of these. Unfortunately the stones thus thrown with a liberal hand fell into the defendant's premises on the opposite side, and sometimes also broke his windows. It was not unnatural that the blood of the appellant should chafe and boil at this nuisance, and he bethought himself that there was a remedy in his own bands. He procured a ladder, and, with a pole 20 feet long having a book at the end of it, he made short work of the tempting blossoms, and like the King of Hearts when stealing the tarts "took them quite away." Here therefore was a situation of gravity which might perplex King Solomon. Both owners were aggrieved and annoyed, though the grief of the one was to some extent brought about by the temper of the other. The mischievous boys probably were the primary cause, but