NOTES OF ENGLISH CASES. [From the Law Journal.]

SUPREME COURT OF JUDICATURE.

COURT OF APPEAL.

(Before LORD ESHER, M.R., LINDLEY and Bowen, L.JJ.) ONSLOW V. THE COMMISSIONERS OF INLAND REVENUE.

July 30.-Practice-Appeal—Decision on special case stated under Stamp Act, 1870 (33 & 34 Vict., c. 97), s. 19— Interlocutory order--Time for appealing.

The decision of a Divisional Court on a special case stated under section 19 of the Stamp Act, 1870, is not a final judgment but an interlocutory order, in respect of which no appeal can be brought without special leave after the expiration of twenty-one days.

This was an application for an extension of time to appeal from the decision of a Divisional Court (reported 59 Law J. Rep. Q. B. 321) on a special case stated under section 19 of the Stamp Act, 1870 (33 & 34 Vict., c. 97). The decision was given on January 21, 1890, when the Court held, in favour of the Inland Revenue Commissioners, that a settlement of contingent and reversionary interests in certain specified amounts of stock which were vested in trustees with power to vary the investments was an instrument which was liable to duty within the meaning of section 3 schedule of the Stamp Act, 1870.

Danckwerts, for the applicant: The decision of the Divisional Court is an order and not a judgment, and, therefore, an appeal cannot be brought after the expiration of twenty-one days without special leave of the Court of Appeal. The words "judgment" and "order" are interpreted in the narrowest sense by Cotton, L.J., in Ex parte Chinery, 53 Law J. Rep. Chanc. 662; L. R. 12 Q. B. Div. 342, 345, which was a decision on the point whether or not a garnishee order absolute was a final judgment within the meaning of section 4 of the Bankruptcy Act, 1883.

G. B. Rosher, for the commissioners: The decision is one made in a matter not being an action within the language of Order LVIII., rule 9, and the time for appealing is the same as that limited for appeal from an interlocutory order.

LORD ESHER, M.R.: I think the time has come for determining the distinction between an "order" and a "judgment," and the better course is to adopt the decision given by Cotton, L.J., in Ex parte Chinery, where he says: "Now in legal language and in Acts of Parliament, as well as with regard to the rights of the parties, there is a well-known distinction between a "judg ment" and au "order." No doubt, the Orders under the Judicature Act provide that every order may be enforced in the same manner as a judgment, but still judgments and orders are kept entirely distinct. It is not said that 'judgment' shall in other Acts of Parliament include an 'order.' I think we ought to give to the words final judgment' in this sub-section their strict and proper meaning-i.e., a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or establishedunless there is something to show an intention to use the words in a more extended sense." Then Bowen, L.J., says: "There is an inherent distinction between ' orders' and 'judgments.' It is true that certain Acts of Parliament have given to 'orders' the effect of 'judgments, but the distinction between them remaius;" and therefore that the words "final judgment" have a proper professional meaning. I think that Bowen, L.J., there meant to say the same as Cotton, L.J., had already said, and Fry, L.J., concurred. The result, therefore, is, that a judgmeut" is a decision obtained in an action, and every other decision is an

order." I think the view taken by the Court in Ex parte Chinery is strongly fortified by the words of Order LVIII, rule 9, which speaks of "any other matter not

being an action." A distinction is there drawn between an order obtained in a matter not being an action and one obtained in an action. I think that is a proper distinction. The decision here was, therefore, an order and not a judgment, as it was not obtained in an action, and no appeal can be brought from such an order after the expiration of twenty-one days, except by special leave of the Court of Appeal. We, however, think that the time for appealing ought to be extended in this case.

LINDLEY, L.J.: I am of the same opinion. I merely wish to add that that the declaration of the Court made on a special case stated under 13 & 14 Vict., c. 35, for the opinion of the Court of Chancery was called in several sections of that Act a decree, which would be an equivalent term to a decision on a special case in the Courts of law. I, however, now think that the distinction which has been pointed out by the Master of the Rolls is the right one.

BOWEN, L.J.: I am of the same opinion.

HIGH COURT OF JUSTICE.

CHANCERY DIVISION.

(Before STIRLING, J.)

In re SMITH. BILKE v. ROPER.

July 31. Aug. 6.— Will—Republication— Will of married woman-Death of husband-Subsequent testamentary document-No reference to will.

Maria Smith, a married woman, by her will, dated December 27, 1878, exercised a power of appointment which was reserved to her by her marriage settlement, and also purported to dispose of all other property over which she had any disposing power.

Her husband died on June 24, 1884, and on July 30, 1885, she executed the following instrument: "This is a present to Oswald Newman Roper from his aunt Maria Smith, by the express wish of his late uncle, Joseph Smith, a few weeks before his death-ten shares of £10 each in the Duumow Gas Company."

This document was signed by the testatrix and two witnesses, but there was no attestation clause. The testatrix died on July 19, 1888, and her will and the instrument of July 30, 1885, were proved by the executors named in the will. At her death she possessed, besides the property comprised in the settlement and subject to the power and certain separate property, other property to which she was absolutely entitled,' including the ten gas shares mentioned in the document of July, 1885; and the question was, whether that document operated as a republication of her will so as to pass all the property of which she was possessed at the time of her death.

Crawley, for the residuary legatee under the will, contended that the document operated as a republication of the will, although it did not expressly refer to it.

Waggett, for next-of-kin of testatrix, argued that the same principle must be applied which obtained in the case of a revivor of a revoked will by a subsequent codicil-viz., that in order to revive the will the codicil must show an intention to do so. Here the document did not refer to the will, and could not be taken as a republication.

Herbert Robertson for parties in the same interest.
Vernon R. Smith for the trustees.

STIRLING, J., said no doubt a codicil which referred to a will was a republication, but there was no authority for that which was contended in this case. In order for an instrument to operate as a republication of a will there must be a reference of some sort to it, "something that expressed the testator's intention that the will should be considered as of a subsequent date" (Barnes v. Crowe, 1 Ves. 497). There was nothing of that sort here, aud he must hold that the instrument did not amount to a republication.

"SILK."

It is a busy day for the gossips of the Inns when it becomes known that a junior has applied for "silk." The news is quickly spread by barristers of longer standing than the ambitious stuff gownsman, who is compelled by the laws of that great Parliament of custom, which we call etiquette, to inform them by letter of his intention to apply to the Lord Chancellor to make him one of Her Majesty's Counsel learned in the law. "Will the Chancellor give him 'silk'?" For days this question stirs the common room to its depths, and agitates the minds of barristers waiting in the corridors for their cases to be reached in the adjoining courts." One of Her Majesty's Counsel learned in the law! It would be well if D merely asked the Chancellor to make him learned in the law before asking to be made one of Her Majesty's Counsel." Upon such sarcasm the gossips often feed. But jealousy, we know on the highest authority, is cruel as the grave.

“Silk" is not very often refused, because harristers do not, as a rule, apply for it until they think they have a very good chance of getting it. Within the last few years, however, refusals, like appointments, have in. creased. At the present time, there are several juniors, both in Lincoln's Inn and the Temple, whose applicatious, some of them three-fold, have been ignored. You may know that by their sour faces when a new batch of Q.C.'s is made-faces as "bitter as coloquintida," as Shakespeare has it. They have not the good fortune to possess one of three qualifications for wearing the silken gown-a reputation for making political speeches, & position in the social world, the favour of the judges, It is well that juniors given to independence in Court should remember that the Lord Chancellor submits to the judges the names of the applicants whom he thinks of h pouring.

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It is a popular delusion that every Q.C.-do not scorn the simple folly of the poor-gains his superior position by superior ability. The leading Q.C.'s are the ablest men at the Bar. Any presumptuous junior who questioned that statement would be guilty of very 'saucy doub.s" indeed. But there are other Q.C.'s whose position within the Bar reminds us of the royal story of the apple in the dumpling. We wonder how they got there, Wonder, we say! No, we do not wonder. Au explanation of the apparent mystery may be found either in the social or the political influence they were able to use. Attend, all ye who seek fresh gowns! It is better to have a knowledge of the Lord Chancellor than a knowledge of the law. Men possessing no other qualification than their ability are not, of course, altogether passed over. In every batch of Q.C.'s such men of merit may be found. They hide the barrenness of their less gifted companions,

In "Bench and Bar," that delightful volume of reminiscences, Serjeant Robinson devotes several pages to explaining the distinction existing between Queen's Counsel and Serjeants. He tells, by the way, an amusing story relating to the headgear of the ancient race to which he belonged, which is not nearly so well known as many others to be found in the same rich store of anecdote. Serjeant Allen aud Sir Henry Keating, Q.C., on leaving the Assize Court at Stafford, were walking along the streets to their lodgings. They were followed by two men, who had witnessed an encounter between them before the court rose. "If you were in trouble, Bill," said one man to the other, "which of these two tip-top 'uns would you have to defend you?" "Well, Tim," was the reply, “I should pitch upon this one," pointing to the Q.C. "Then yur'd be a fool," said his companion, "the fellow with the sore head is worth six of t'other one." The few remaining serjeants can trace their learned race to the days when the clergy, monopolizing all the learning and intelligence of the kingdom, practised as advocates, fiuding the winning of cases more remunerative than the saving of souls. Lord Bacon was the first Q.C., so that the title is of comparatively recent origin. But the position held by the great philosopher and lawyer

did not exactly correspond with that held by Sir Charles Russell, for instance. He was the Queen's private adviser. Practically the first bearer of the title, as we now understand it, was Sir Francis North, who practised "in silk attire" in the reign of Charles II. Since the days of that pious monarch, Queen's Counsel or King's Counsel have gradually grown in numbers. To-day there are no fewer than two hundred of them. Of course, not all of these learned gentlemen attend the courts; and there are many anxious to practise whose briefs are even rarer than angels' visits. In oue of the Chancery Courts there are seven Q.C.'s. Four of them, to our knowledge, do not earn by their combiued efforts much more than £500 a year. The competition between Her Majesty's Counsel is not, therefore, quite so severe as at first sight it would appear. But it is severe enough, in all conscience, so severe, indeed, that Lord Halsbury and his successors must be much less generous in their bestowal of silk than former Chancellors have been if the position of Q.C. is to retain the advantages and honour that properly belong to it.

It is no light thing being made a Q.C. There is the patent to be obtained, and the ceremony of being called within the Bar to be gone through. The former is expensive; the latter is embarrassing. The fees that a "silkling" has to pay to an office which gives him practically nothing in return, amount to sixty guineas, The Lord Chancellor's messenger, who never in his life delivered a message entitling him to the gratitude of any one, expects a gratuity of two guineas. The usbers of each court in which the ceremony takes place have grown to believe that they earn half-a-crown when they see a newely-appointed Q.C. for the first time; and long-standing custom ordains that the learned gentle, man must present his clerk with a new silk hat and two pairs of white gloves, arrayed in which that faithful and smiling individual accompanies his employer on his tour through the courts.

The expenditure is not, however, the most painful incident in conuection with a call within the bar. The ceremony itself deserves that description. The world knows little of the sufferings of elderly men wearing silk stockings and knee-breeches for the first time in their lives. Remember the constant bows, in court after court, first to the judges and then to the smiling juniors behind; think with pity of those who have to wear for hours that terrible infliction-the full bottom wig, the wearers of which have compared their feelings on a very hot day to those of a shaggy pony with a very large mane.

Is the ceremony a thing of pain? Traly, it often is, even to those who go through it with the lightest hearts and the brightest hopes. How many a busy junior has fallen into a briefless Q.C. The qualities that make a leader are different from those which constitute a good junior. The latter may build up a large practice on his profound knowledge of the law, but something more than this great attainment is required in a leader. He must possess fluency of speech aud tact; both in the Chancery Courts and in the Queen's Bench Division these qualities are absolutely necessary. Without them, "silk" becomes dust and ashes, and the ceremony we have described the most painful one in the wearer's life. In the race at the Bar, especially that part of it witnessed by jurymen, it is not a mere knowledge of the law that wins, but a warm heart and a cool head.-Law Gazette.

"Now, sir," began the attorney for the defence, preparing to annihilate the witness whom he Was to Can cross-examine, "you say your name is Williams. you prove that to be your real name? Is there anybody in the court-room who can swear that you haven't assumed it for purposes of fraud and deceit?" "I think you can identify me yourself," answered the witness. "I Where did I ever see you before, my friend?" "I pat that scar over your right eye twentyfive years ago, when you were stealing peaches out of father's orchard. I'm the same Williams."—Chicago Tribune.

.

JIM WAY.

That many a man is convicted without just cause, needs no argument; that many men are imprisoned unjustly, need not be urged to be believed. Such was the case with Ben and Jim Way, father and son.

It was before the war, at St. Clair, on a cold winter morning, when the sheriff called up the turnkey early, to admit a couple of English prisoners under arrest for murder. It was a dreary, bitter cold morning. The prisoners were scantily clad in "blue jeans," and looked tired and hungry, pinched and half frozen. They pleaded not guilty, and were soon bound over to the circuit for trial by jury.

Trial-day came, and they were ably defended; but their showing was rather meagre. The jury-a very dull and stupid and biassed one-found defendants guilty of murder in the first degree. The father and son sat dazed under the finding; at last the old man said, "That's wrong; that's wrong," This was overbeard by a bright young lawyer, who remembered it. He visited Judge Turuer before sentence, and stated what he heard, and urged that a new trial be granted, which, after much delay, was allowed, and a new trial set and had, in which the real truth came out with all the vividuess that a boy's keen nature could develop it.

It appeared, by the father's story, that the killing was not murder in any sense, but merely the killing of a human being without motive or malice. Ben Way and son were English. The neighbourhood was of another nationality. A school-meeting had been held, at which the old man had advocated an advance in the teacher's salary. Words had followed; and on their way home, Ben and Jim Way were beset by one who struck a beavy blow at the father with a club, but failed to hit him in the darkness, when the big fellow grappled and threw the old man face downward, who then calling to his son, "Help, Jim! he's killing me; " and the son grabbed an axe near by, and cut the assailant deep in the back, killing him instantly.

To avoid the mob who gathered and broke in the old man's windows, his wife fled to the lake-shore; and Jater on, the father and son followed, leaving a deserted team and home and many marks of crime behind them. It was at the lake-shore they were arrested, on the night before their capture as described. After hearing the old man's story (not related at the first trial), the jury said, "Not guilty as to Ben, and guilty as to Jim," to the surprise of the trial judge and counsel, and a majority of the spectators.

Jim was small and young, and bore it like a boy hero. He had become a hero as soon as the old man told of bis bravery. At the time of sentence, he said, "It's all right, Judge I struck him, -I did it to save father. That's all I have to say, Judge,-I did it to save father. His words appealed to me, Judge. You know I was excited. I couldn't help it."

Every eye in the court-room grew moist; tears came down the cheeks of the judge, who gave "Jim" & sentence of three months in prison, and hoped they would "be kind to him." At this remark the whole crowd broke out in tears and applause. "Jim" was met with kindness at Jackson. After a few day's confinement, he was given the freedom of the yard, and a nominal restraint only was kept over him, for he was hailed as a hero for defending his father.--Green Bag.

APPOINTMENTS AND PROMOTIONS.

NOTA BENA.-Information intended for publication under the above heading should reach us not later than Friday morning in each week, as publication is otherwise delayed.

Mr. H. T. Wright, Clonakilty, Sessional Crown Prosecutor for Cork, has been appointed Crown Solicitor for the City and County of Cork, vice Mr. William Verling Gregg, resigned.

CORRESPONDENCE.

We throw open the columns of this journal most willingly for the discussion of subjects of interest to the profession; but it must be understood that we do not necessarily agree with all the opinions. expressed by our correspondents.

Letters and con/nunications intended for publication and addressed to THE EDITOR, 53 Upper Sackville-street, Dublin, must be authenticated by the name of the writer, not necessarily for publication, but as a guarantee of good faith.

*.* Letters intended for publication in the same week should reach the Office not later than Thursday morning.

"Does the freehold lease continue in existence at the reduced rent so as to pass to the heir in case of intestacy, or does it cease, and the holding become a yearly tenancy liable to probate and legacy duty on the lessee's death, as if the lease had actually expired?"

In order to answer these queries, it is necessary first to understand exactly

(a) What is a freehold lease; and

(b) What does the 1st section of the '87 Act enact. I believe a freehold lease to be one made for any uncertain time, as for lives or for years and lives, whichever shall longest last. A lease for 31 years, if "A" shall so long live, is a chattel interest only because the term is fixed beyond which the estate cannot go.

If in a lease for lives and years the lives expire before the years, is it not a fact that the interest becomes a chattel?

The interest under a freehold lease does not descend to the "beirs" unless the lease is made to the lessee and bis "heirs."

And even if a freehold lease-say for lives and years→ is so worded, but, the lives having expired before the years, the lessee dies before the expiration of the years, the interest which was a chattel at the time of lessee's death will go to the personal representatives of the lessee.

The first section of the '87 Act merely enables certain tenants to break their leases by notice in proper manner when they are in the position of "present tenants," and may have fair rents fixed.

The lease is only changed in two ways1. The rent.

2. The term.

Such covenants as could properly apply to tenants from year to year are still binding on the lessee, together with the statutory conditions.

But as the term is the very point of difference between a freehold and a chattel interest, this change makes the freebold interest a chattel subject to all the duties, rights, and liabilities of chattels real,

I think, therefore, that no matter how the freehold lease was worded, once the application is made to have a fair rent fixed the nature of the tenancy changes, and the judicial term will descend on the tenant's death, without a valid will, to his personal representatives. Yours faithfully, J. J. HAM. Ballymahon, August 27th, 1890,

TO THE EDITOR OF THE IRISH LAW TIMES.

SIR,-In your issue of 23rd instant, a "Pozzled Solicitor" makes inquiry as to the devolution of a freehold lease on which a rent has been fixed under Sec. 1, Act of 1887.

It appears, as the law at present stands, the lease is subsisting, and goes to the heir-at-law.

This subject was discussed in Bolton v. Barry, and in Wilson v. Smith, reported in the Law Times of 19th January, 1889, but the decisions in these cases are inconsistent with the section.

I had two cases where the leases were freehold, and on the authority of the latter case the Land Commission substituted the name of the heir-at-law on the hearing of appeal, uotwithstanding there was an administratrix in whose name a rent was fixed on a tenancy from year to year.

PRUDENTIAL ASSURANCE COMPANY, LIMITED, Holborn Bars, London, E.C. Founded 1848. Invested Funds, £10,000,000; Claims Paid, £12,000,000. District Office-11 UPPER SACKVILLE-STREET, DUBLIN.

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Shares not fully paid up are given in Italics. Bank Rate Of Discount-3 per cent.

Of Deposit-1 per cent. Name Days-Sept. 10th and 24th, 1890.. Account Days-Sept. 11th and 25th, 1890. Business commences at 1 30 p.m.

BIRTHS, MARRIAGES, AND DEATHS.

MARRIAGES.

BLOOD and D'ELSA-August 16, at St. John's Parish Church, Bognor, Sussex, by the Rev. Henry Layton, M.A., Vicar of St. Stephen's, Hounslow, W., Adam Lloyd Blood, solicitor, son of John Lloyd Blood, of Monkstown, Co. Dublin, to Helena, widow of Max. J. d'Elsa. CROTTY and REA-August 20, at Duncairn Church, Belfast, by the Rev. R. J. Lynd, D.D., Richard D. Crotty, B.A., barrister-at-law, Resident Magistrate, Fortwilliam, Virginia, Co. Cavan, to Agnes Whyte, daughter of the late Hugh Rea, Esq., of Belfast and Londonderry.

DEATHS.

GREENE-August 27, at Morehampton-road, Sarah, last surviving daughter of the late Sir Jonas Greene, Recorder of Dublin, aged 90.

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