THE

LAW QUARTERLY

REVIEW.

No. LXI. January, 1900.

NOTES.

THE current series of the Law Reports will henceforth be referred to by the full form of citation. No practical abbreviation of the new year's date, 1900, occurs to us, and it seems better to write those of the foregoing years in full for conformity's sake.

Many lawyers must have observed with regret a tendency in recent decisions of the Judicial Committee to dispose in a somewhat offhand manner of questions involving principles of general importance. We venture to think that the judgment in Cook v. Sprigg [1899] A.C. 572, 68 L. J.P. C. 144, will be found not only uninstructive but perplexing. The action was in substance a claim of title against the Crown, as represented by the executive government of the Cape Colony, by persons holding a 'concession' of certain rights in Eastern Pondoland from a native chief. After the concession'— a term, by the way, unknown to the common law, and not stated to be known to the Roman-Dutch law of the Colony-and, apparently, before the grantees had taken up their grant by acts of possession, Pondoland was annexed to the Cape Colony. The colonial Government refused to recognize the grant on several grounds of substance, and the Supreme Court of the Colony held that most of these grounds were good. One of them was that the 'concession' conferred no legal right before the annexation and therefore could confer none afterwards: which would bring the case exactly within Doss v. Secretary of State for India in Council (1875) L. R. 19 Eq. 509, where the claim was originally against the King of Oudh. Another ground which seems material, though noticed, so far as appears, only in argument, is that the 'concession' probably was, in the terms of our law, not a present grant of any estate, but a contract or licence, and thus the right existing at the date of the annexation, if any, would be merely personal, and the claimants had, at best, misconceived their remedy.

But the judgment of the Judicial Committee sweeps all these details aside. It says 'a more complete answer' to the claim is furnished by the fact that the acquisition of the territory was an act of State, and 'no municipal Court had authority to enforce such an obligation' as the duty of the new government to respect existing titles. We can read this only as meant to lay down that on the annexation of territory, even by peaceable cession, there is a total abeyance of justice until the will of the annexing Power is expressly made known; and that, although the will of that Power is commonly to respect existing private rights, there is no rule or presumption to that effect of which any Court must or indeed can take notice. With great submission, this doctrine appears to us neither sound nor convenient. It is contrary to the law of nations as generally understood, and we know of no warrant for it in the common law. The Indian cases relied on by their lordships were altogether distinguishable. On the other hand their lordships took no notice of a whole series of decisions in the Supreme Court of the United States, very properly and aptly cited in argument, in which a very different course was followed. Claims founded on old Spanish grants in Florida and Louisiana were examined and dealt with, as of right, according to the law under which the grants were made. The same principle was applied in Missouri, and later in California.

We humbly conceive that, according to all principles hitherto recognized (unless there be some very peculiar rule of Roman-Dutch law on the subject, which was not alleged), it was the business of the Supreme Court of the Cape of Good Hope to consider whether, on the day when the territory became British, the plaintiffs below had or had not a good title under the existing local laws and customs, whatever they were, and that the Court was quite right in doing so. If the Court had found them well entitled, as on the merits it did not, then only an act of legislation could have displaced their title. The reasons assigned by the Judicial Committee put all private rights in a newly-acquired territory at the mercy of the new executive power. We cannot think this correct.

If we are wrong, it is in Chief Justice Marshall's company. 'A cession of territory is never understood to be a cession of the property belonging to its inhabitants': U. S. v. Percheman, 7 Peters, 51, 87.

It seems rather strange that two of the three judges who compose the Supreme Court of Trinidad should have held that the stratum of 'pitch' lying underground in the neighbourhood of the Pitch Lake was to be treated, for legal purposes, as if it were water.

In fact, this curious deposit of crude asphalt, both underground and in the ‘lake' itself, is neither liquid nor solid, but viscous, with enough inclination to solidity at the ordinary temperature of the climate to allow of walking, riding, and driving carts over it, and to require the use of a pick-axe to get it by digging. The Chief Justice, on the other hand, observed that asphaltum is a mineral, not water; and the Judicial Committee agreed with him: Trinidad Asphalt Co. v. Ambard [1899] A. C. 594, 68 L. J. P. C. 114, and held the ordinary rules of law to be applicable, both as to support and as to the consequences of wrongful appropriation. As their Lordships justly remark,' The pitch, which is the peculiar product of this strip of land in the island of Trinidad, resembles water in one respect. At a certain temperature it becomes liquid.' So does iron.

McLeod v. St. Aubyn [1899] A.C. 549, 68 L. J. P. C. 137, determines in the main a mere matter of fact, viz. that X, who innocently lent a paper containing a scandalous attack upon a Court of Justice without knowing what the contents of the paper were, was not guilty of and could not rightly be committed for a contempt of Court. The importance of the case lies however not in the decision in favour of the appellant, but in the clear exposition by the Privy Council of the principle, which is sometimes forgotten, that a scandalous attack upon a Court after the delivery of judgment may amount to contempt. The judgment of the Privy Council is indeed in every way satisfactory. It warns the judges of subordinate Courts against undue use of the power to commit for contempt, and it reminds the public that the power of the Courts to enforce summarily that respect for their decisions which is absolutely necessary for the due administration of justice can rightly be extended as far as the necessity of the time requires.

X is a shipowner residing at Paris where he has his principal place of business. He has also an office in London where business is carried on for him by an agent. His ships trade between French ports and English ports, and other places. One of his ships comes on the high seas into collision with and damages a ship belonging to . Xis not in England. A under these circumstances wishes to bring in England an action in personam against X for the damage. The action is clearly not maintainable; and for the simple reason that as a general rule an action is not maintainable against a defendant who, at the time for the service of the writ, is not in England, and the case falls within none of the exceptions to this principle embodied in Rules of Court, Order XI, r. 1.

Let the case however be varied by one circumstance only, namely, that the ship causing the collision is owned not by X, an individual Frenchman, but by X & Co., a French company formed under French law whose head office is at Paris. A may then maintain an action in personam in the High Court against X & Co. It is possible, in short, to maintain an action against a foreign company where it would be absolutely impossible to maintain an action against an individual, whether an Englishman or a foreigner, who was not in fact in England. This is the effect of La Bourgogne [1899] A. C. 431, 68 L.J. P. 104, and must be now taken to be good law. All that a critic can say is that the decision in which the Probate Division, the Court of Appeal, and the House of Lords agree, establishes a curious anomaly which may lead to some inconvenient results.

Let it be particularly noted that with the general principle apparently established by La Bourgogne, namely, that a foreign corporation which does business in England in such a way as to be resident here may be sued here, and the writ may be served on its officer here, no one can quarrel. The point, if any, open to criticism is, that the Courts have in La Bourgogne treated the carrying on of business by a foreign corporation in England through an agent as equivalent to personal presence there, which it certainly is not in the case of an ordinary person. It is at least arguable that a corporation does business in England in such a way as to be resident there only when it has its head office in England.

Cases of fraudulent preference occupy or used to occupy a very large proportion of the time of the Court of Bankruptcy as everybody familiar with the proceedings there knows, and no small part of that time was spent over a psychological puzzle-debating the meaning of the words,' with a view of giving such a creditor a preference.' When, for instance, a fraudulent trustee on the eve of bankruptcy prefers the cestuique trust creditor he has wronged, is that a fraudulent preference? The answer is, ' Was his dominant motive to shield himself from a prosecution, or to favour the creditor?' If it was to shield himself, then the payment or conveyance was not a fraudulent preference (Sharp v. Jackson [1899] A. C. 419, 68 L. J. Q. B. 866). Evidently the unjust steward's transactions in the parable were not fraudulent preferences, for he was looking out, not for the creditors, but for himself-acting under the pressure of an anxious future. Of course a court of law has only to interpret the language which the Legislature has used to express or conceal-its meaning, but it seems rather a pity that the Legislature should have made the equitable distribution of a

bankrupt's estate depend on what motive was uppermost in his mind on the eve of his bankruptcy. A debtor's act in paying one creditor before the rest because he is dangerous may be only means to an end-self-protection; but the mischief, whatever the motive-immediate or ulterior-is the same. To have the law settled, however, for better or worse, is great gain. It will do much to clear the list of fraudulent preference cases.

It is difficult, at any rate for an Englishman, to feel certain that he fully grasps the facts of Scott v. Glasgow Corporation [1899] A.C. 470, 68 L.J. P.C. 98. They may, however, we submit, be thus broadly summed up. The respondents, the Corporation of Glasgow, are the local authority who under Acts of Parliament, and especially the Animals Diseases Act, 1894, and the Markets and Fairs Clauses Act, 1897, have the control and management of a public market for the sale of imported foreign cattle held at the Foreign Animals Wharf, Pointhouse, Glasgow. Under the orders of the Board of Agriculture, this wharf is the only place in Scotland at which foreign cattle can be imported and there sold alive. Scott and others, the appellants, are a body of Glasgow butchers who import foreign cattle to Scotland for sale. Their course of business is to sell their cattle by auction at certain sale rings appropriated to the sale of cattle on the said wharf. But the appellants, while offering their cattle for sale by auction, do not offer their cattle for sale to all comers, but only to a certain class of purchasers, viz. members of the trade. This kind of auction at which goods are offered only to a certain body of purchasers is in no way opposed to the law of Scotland nor, it is submitted, to the law of England. The Glasgow Corporation, however, as the local authority, have made a by-law to the effect that the sale rings on the wharf at Pointhouse shall not be used for sales in which any class of the public are excluded from bidding or buying.' The practical effect of the rule undoubtedly is to prevent the appellants from selling anywhere in Scotland cattle imported from abroad otherwise than at an auction open to the whole public. The appellants therefore have appealed to the Courts to declare the by-law invalid. Both the Quarter Sessions and the House of Lords have upheld the by-law, and most persons who are not members of the body represented by the appellants will probably agree with the decision of the Courts.

Scott v. Glasgow Corporation illustrates in more ways than one the difficulty of the questions which are inevitably raised whenever the State undertakes to regulate the course of trade, and whenever the State is called upon to fix the proper limits to the right of association.