Maugham K.C., Gordon K.C., and Fairfax Luxmoore for the plaintiff, on the question of the defendants being accusers and judges, and therefore biassed, referred, inter alia, to R. v. Allan, (1864) 4 B. & S. 915; Leeson v. General Council of Medical Education and Registration, (1889) 43 Ch. D. 366; R. v. Gaisford, [1892] 1 Q. B. 381; and Allinson v. General Council of Medical Education and Registration, [1894] 1 Q. B. 750. Clayton K.C. and Cecil Whiteley for the defendants. Admiralty on July 27, 1915. H. made no complaint against After discussion the President decided that all members of the plaintiff for the user of the design. The provisional the Council should sit, though one member said he would specification settled by the plaintiff contained a description not vote. In view of this decision the plaintiff and of this adaptation of the fuse, but no drawing. Both the his counsel and solicitor retired from the meeting. plaintiff and L. were unaware that there was any secret Most of the Council had been members of the Discias to the fuse. By a letter of December 20, 1915, the pline Committee. The Council then proceeded, in the Admiralty wrote to the plaintiff, objecting to this hydro- absence of the plaintiff, to pass resolutions to the static fuse being embodied in the apparatus on the ground effect that two of the allegations against him had been that it was a secret Admiralty invention confidentially com- proved, and that he had been guilty of acts discreditable to municated to H., and they required it to be excluded from a patent agent, and should be excluded from membership the application for a patent. This was subsequently done of the defendant Institute. On December 24, 1917, the after further correspondence. By a confidential letter of plaintiff commenced this action, claiming a declaration that April 25, 1916, the Admiralty reported the matter to the the resolutions were invalid and ultra vires, and for an Chartered Institute, stating the facts of which they com- injunction restraining the defendant Institute from acting plained, and imputing that the plaintiff had been guilty of thereon. a grave breach of trust. This letter was considered at a meeting of the Council, who resolved, in accordance with rule 31 of their Charter, that the case be referred to the Board of Trade, and that a Discipline Committee should be formed to instruct solicitors to prepare the case for the Board and to conduct the same. By rule 31 of the Charter it was provided that if the name of any member of the Institute should, by order of the Board of Trade, be erased from such register by reason of his having been, after due inquiry, proved to the satisfaction of the Board to have been guilty of disgraceful professional conduct, such person should de EVE J., in the course of a considered judgment, said that facto cease to be a member of the Institute. On the plaintiff claimed that the resolutions of the Council June 16, 1916, the solicitors of the Chartered Institute were invalid on three grounds: (1) Because the Council, sent to the plaintiff and to the Board of Trade a document having unsuccessfully applied to the Board of Trade under containing four specific allegations as to the plaintiff's con- rule 31 of the Charter, could not rehear the matter on the duct, based upon the letter from the Admiralty, and apply- same complaint under rule 32; (2) because the Council, coming, under rules 17 and 19 of the Register of Patent Rules, posed in part of persons who had taken a substantial share 1908, for the appointment of a Committee upon the ground in the previous proceedings, were disqualified from adjudithat the plaintiff had been guilty of disgraceful professional cating on allegations substantially brought forward by conduct. On April 18, 1917, the Board of Trade notified the themselves; and (3) because there was no evidence by which plaintiff that they had considered the report of the Com- the Council's conclusion could be reasonably supported. mittee, and were satisfied that the first and second allega- His Lordship held that the first and third objections to tions had been substantiated, and that the plaintiff had been the resolutions could not be maintained. With regard to the guilty of disgraceful professional conduct deserving of the second, the investigation under rule 32 involved an inquiry severest censure, but that, if he apologised to the Admiralty, of a judicial nature. Each member of the Council, in his name would not be erased from the register. The Presi- adjudicating on a complaint thereunder, was performing a dent of the Board of Trade was applied to, and, after re-judicial duty, and must bring to the discharge of that duty considering the matter himself, expressed his opinion that the plaintiff's conduct was deserving of severe censure, but that the circumstances did not require the removal of the plaintiff's name from the register, and the President did not find him guilty of disgraceful professional conduct. The Council of the Institute then proceeded under rule 32 of the Charter, which provided that if any person while a member of the Institute was held by the Council, on the complaint of any member of the Institute, or of any person aggrieved, and after having had an opportunity of being heard by the Council, to have been guilty of any act or default discreditable to a patent agent, he should be liable to be excluded rom membership by a resolution of the Council passed at a specially convened meeting. On December 20, 1917, the meeting of the Council was held, and objection was taken by plaintiff's counsel to the jurisdiction of the Council in 1 so far as it was composed of members who had taken any active or substantial part in the previous proceedings. an unbiassed and impartial mind. As Bowen L.J. said in Leeson v. General Council of General Medical Education and Registration, (1889) 43 Ch. D. 384: "If he is an accuser, he must not be a judge," and the question whether he had not been an accuser was one of fact to be determined in each particular case. Lord Esher M.R. put it thus: "The crucial question is whether in substance and in fact one of the judges has in truth also been an accuser (Allinson v. General Council of Medical Education and Registration, [1894] 1 Q. B. 758). In the present case the tribunal was largely made up of members who, in substance and in fact, constituted themselves prosecutors and accusers when they applied to the Board of Trade and deputed to their agents the formulation of the charges and the conduct of the proceedings. It was argued for the defendants that the Council, if accusers at all, were accusers before another tribunal and in an inquiry involving different consequences, and that these factors distinguished the present case from the reported decisions relied on. But he could not accept that Solicitors for plaintiff: Guedalla & Jacobson. Astbury J. G. M. that no goods shall be liable to be taken by virtue of any F. K. Archer for the liquidator. ASTBURY J. said that it was contended on behalf of the liquidator, first, that the word "due" in the statute of Anne meant legally recoverable, and that the rent was not legally recoverable by the landlord owing to the restriction on his right of distress contained in the Companies (Consolidation) Act, 1908; and, secondly, that the statute of Anne only applied by way of substitution for the landlord's right of distress, and that, as the landlord had no such right at the time of the sale by the sheriff, the statute had no application. His Lordship was unable to adopt this view of the law on the facts of the present case. Here the sheriff was in possession of the goods from July 10, five days before the presentation of the petition, and on July 19, four days after the presentation of the petition, the Court reApril 8. fused to interfere with the sheriff in carrying out the execution, and thereby authorised him in effect to proceed with the execution according to law-that is to say, in accordance with the statute of Anne. It could not be disputed that on July 10 there was due to and recoverable by the landlord 621. 10s. for rent. It was true that, if there had been no execution and if the landlord had done nothing further, the landlord would, after the winding up, have been in a different position; but, as matters stood, the sheriff was authorised to proceed with the execution, and the sheriff could not proceed with the execution according to law without paying the rent due to the landlord at the date of the seizure, and so fulfilling the obligation imposed on him by On In re BRITISH SALICYLATES, LIMITED. [00144 OF 1918.] Company Winding up- Execution Seizure by sheriff before presentation of petition-Rent paid to landlord by sheriff-Claim to be repaid by liquidator-Landlord and Tenant Act, 1709 (8 Anne, c. 14), s. 1-Companies (Consolidation) Act, 1908 (8 Edw. 7, c. 69), ss. 139, 140, 142, 211. On July 10, 1918, a writ of fi. fa. issued out of the King's Bench Division at the suit of the plaintiff for a judgment debt of 1091. 8s. 6d., and 1l. 14s. costs of execution, and on the same day the sheriff seized certain goods, the property of the company, on premises at Banner Street. On July 15 a petition was presented to wind up the company. July 16 the company issued a summons for a stay of proceedings under the fi. fa. until after hearing of the windingup petition. On July 19 this summons was dismissed with costs on the ground that the execution was put in force prior to the presentation of the petition. On July 22 a notice of claim for 621. 10s., for a quarter's rent due to the landlords of the premises was served upon the sheriff. On July 23 the sheriff sent to the plaintiff's solicitors a notice informing them of the landlord's claim, and requiring the plaintiff to pay the same. On July 25 the sheriff received the plaintiff's cheque for 62l. 10s., and on July 30 the sheriff paid this sum to the landlord's agents, who held a distress warrant for the said rent. On the same day a compulsory order for winding up the company was made, and the goods were sold by the sheriff for 3321. 8s. 10d. This summons was taken out by the liquidator for an order that the sheriff should pay to the liquidator the sum of 621. 10s., which the liquidator contended was wrongly paid by the sheriff to the landlord. The Landlord and Tenant Act, 1709, s. 1, enacts the statute of Anne. The result was that the 621. 10s. had been rightly paid by the sheriff to the landlord, and the summons must be dismissed. Solicitors for applicant: Peter Thomas & Clark. KING'S BENCH DIVISION. A. C. K. B. D. * STEWART, APP. v. SIMPSON, RESP. April Emergency Legislation-Beer-Maximum price-Mixture c two beers-Original gravity-Beer (Prices and Descrip tion) Order, 1918. Special case stated by the Recorder of Bristol. The appellant appealed to quarter sessions against a co viction for having, on November 14, 1918, at an ale-hous unlawfully sold by imperial measure in a public bar ha a pint of beer of an original gravity of 1030 deg., at the rate of 6d. per imperial pint, contrary to the Beer (Prices and Description) Order, 1918. By clause 1 of that Order: "A person shall not on or after April 1, 1918, sell any beer of the gravities mentioned in clause 3, or any beverage containing any beer of such gravities, in any part of any licensed premises having a public bar . . unless . . (b) such beer when sold by imperial measure in the public bar . . . is sold at prices not exceeding the maximum prices provided by this Order." Clause 3: "Where beer is sold by imperial measure in a public bar, the maximum price for beer of an original gravity not exceeding 1030 deg. shall be at the rate of 4d. per imperial pint, and for beer of an original gravity not exceeding 1034 deg. and not less than 1030 deg. shall be at the rate of 5d. per imperial pint.” On November 14, 1918, the respondent was served in the public bar of the appellant's ale-house with half a pint of "old and bitter," a mixture of old beer and bitter beer in approximately equal portions, for which he paid 3d. A sample of the half-pint of beer was subsequently analysed by the public analyst for the purpose of ascertaining its The Recorder held that the mixture of the two kinds of heer was beer within the meaning of clause 3 of the Order, and that the mixture could have an original gravity of its own, and he accordingly dismissed the appeal. Foote K.C. and F. E. Weatherly for the appellant contended that the original gravity of beer was the original gravity of the liquor before fermentation, and by s. 15 of the Inland Revenue Act, 1880, it was arrived at by ascertaining the original gravity of the worts. It followed, therefore, that a mixture of two beers was not capable of having an original gravity within the meaning of this Order, and if one of the two beers constituting the mixture was not a controlled beer, the mixture could be sold at such price as the publican chose to ask for it. The phrase, "original gravity" was meaningless when applied to a ïùixture. Rayner Goddard for the respondent contended that a mixture of two kinds of beer was beer within the meaning of the Order, for by clause 12 "beer" included any description of beer. Original gravity meant the strength of the beer as ascertained by analysis, and the object of the Order was to regulate the price according to the strength of the beer. By the Order of 1919, now in force, all beers were controlled beers, and if the contention of the appellant were correct, the Order could always be evaded by mixing two kinds of beer together. appeal. DARLING J. said that the mixture which had been sold to the respondent was not a beverage containing beer," but was beer, just as much as a mixture of hot and cold water was water. Being a compound of two different kinds of beer, it never had, as a compound, an original gravity; but each of the beers constituting the compound had an original gravity, and thus the actual gravity of the compound could be ascertained, and, as it had been proved to be 1030 deg., it was not permissible to sell it at more than 5d. per pint, and therefore the offence charged had been committed. BRAY J. said that, in his opinion, a mixture of two kinds of beer was "beer" within the meaning of clause 3 of the Order. It was clear from s. 38 of the Inland Revenue Act, 1880, that the original gravity of beer could be ascertained when it was actually beer, and not merely a liquor in process of manufacture into beer. If that could be done in the case of one kind of beer, it could also be done where the beer was a mixture of two kinds of beer. AVORY J. agreed, though he had been much impressed with the argument that it was impossible to ascertain the original gravity of a mixture of beers; but it had been established that the original gravity of beer could be ascertained after the beer had fermented, and the analyst had in fact ascertained the original gravity of this mixture. It followed that the mixture could not be lawfully sold at more than 5d. a pint. Appeal dismissed. Solicitors for appellant: Wansbroughs, Robinson, Tayler & Taylor, Bristol. Solicitors for respondent: Robins, Hay, Waters & Hay, for Edmund J. Taylor, Bristol. K. B. D. F. O. R. OATEN, APP. v. AUTY, RESP. April 10. Justices-Appeal-Case stated-Person aggrieved by conviction, order or determination-Offence proved, but information dismissed-Summary Jurisdiction Act, 1857 (20 & 21 Vict. c. 43), s. 2-Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 33-Probation of Offenders Act, 1907 (7 Edw. 7, c. 17), s. 1. Case stated by Yorkshire (West Riding) justices. An information was preferred by the respondent against the annallant alleging that to have been duly enlisted under the Military Service Acts, 1916 and 1918, failed, without lawful excuse, to appear at the time and place at which he was required upon being called out to attend. At the hearing it was admitted or proved that the appellant was, by virtue of the Military Service Acts, deemed to have been duly enlisted in the Army, unless he came within the exception from the provisions of those Acts of "men in holy orders or regular ministers of any religious denomination." The appellant was duly called out, and failed to appear, he claiming to be exempted by reason of being the regular minister of а religious denomination called "Spiritualists." Evidence was given as to the body known as the Spiritualists' National Union, as to their churches and doctrine, and as to the position and duties of the appellant; and upon that evidence the justices said they were not satisfied that the appellant was a 66 man in holy orders or a regular minister of any religious denomination," or that the union or any church connected therewith was a religious denomination within the meaning of the exceptions, and therefore they considered that the appellant must be deemed to have been duly enlisted in His Majesty's regular forces or in the reserve, and to have been forthwith transferred to the reserve. They further said: "We were of opinion that the offence was proved, but were of opinion that it was inexpedient to inflict any punishment, and therefore, under the Probation of Offenders Act, 1907, we dismissed the said information." In the register of the court, under the heading, "Minute of Adjudication," was this entry: "Offence proved, dismissed under the Probation of Offenders Act, inexpedient to punish." The question for the opinion of the Court was whether the justices came to a correct decision in point of law. The case came in the first instance before a Divisional Court, consisting of Darling, Bray and Avory JJ., when the point was raised whether in the circumstances the appellant could appeal by way of case stated. That question was ordered to be argued before a court consisting of five judges, and now came on for argument. Hawke K.C. and Valentine Ball for the appellant contended that an appeal by way of case stated was competent in the circumstances. Sect. 2 of the Summary Jurisdiction Act, 1857, enabled a party, if dissatisfied with the justices' determination," as being erroneous in point of law, to apply for a case to be stated for the opinion of the High Court. That provision was extended by s. 33 of the Summary Jurisdiction Act, 1879, which enabled a person aggrieved who desired to question a "conviction, order, determination, or other proceeding of a court of summary jurisdiction," on the ground of being erroneous in point of law or in excess of jurisdiction, to apply to have a case stated. In this case the appellant was aggrieved by the justices' "determination" or "order" finding the offence proved. Branson for the respondent submitted that the finding of the justices had to be taken as a whole, and it amounted to the dismissal of the information. An appeal did not lie at the instance of the party in whose favour the dismissal was pronounced. The real difficulty had been occasioned by the justices applying the Probation of Offenders Act, 1907 to a case to which it obviously had no application. THE COURT (Darling, Bray, A. T. Lawrence, Avory and Lush JJ.) held that there had been a determination" by the justices from which the appellant was entitled to appea by way of case stated. The appeal was then heard on the merits by the Court that there was evidence upon which the justices could com as originally constituted, and was dismissed on the ground to the conclusion that the appellant was not "a regular minister of any religious denomination." Appeal dismissed. Solicitors for appellant: Upton, Britton & Lumb, for Wilmshurst & Stones, Huddersfield. Solicitor for respondent: Treasury Solicitor. Restitution of conjugal rights—Non-compliance with order -Periodical payments-Payments secured by deedPower to vary-Matrimonial Causes Act, 1884 (47 & 48 I ict. c. 68), ss. 2, 4. A wife obtained, in 1915, an order for restitution of con jugal rights, and, on her husband disobeying it, presented a petition under the Matrimonial Causes Act, 1884, for periodical payments, upon which her husband, whose fixed income was a little over 2001. a year, was ordered to pay he 90. a year, to be secured by a deed which, if the partie did not agree, was to be settled by conveyancing counsel t the Court. The parties agreed upon and executed a deed whereby investments belonging to the husband were trans ferred to the Public Trustee upon trust to pay 901. out of th income to the wife and the residue to the husband. After wards the wife's father died, having left her by will a income of 700l. a year for her life. The husband the presented a petition under s. 4 of the Act asking that th deed should be cancelled. The wife opposed. Disturnal K.C. and Le Bas for the husband. LORD COLERIDGE J. said that the deed was executed solel to carry out the order for payment, which was necessaril subject to variation under s. 4 of the Act. The Court ha therefore the same power to vary the deed that it had vary the order. He made an order that the payment 901. a year to the wife should be temporarily suspended, an the Public Trustee should, until further order, pay th income of the investments comprised in the deed to t husband. Solicitors for husband: Bartlett & Gregory. J. R. B. NOTICE TO SOLICITORS. With the view of insuring the greatest possible accuracy and rapidity in the various publications connected with the LAW REPORTS the Council will be obliged if the Solicitors to whom application is made by any reporter acting for the Council will as noon as possible after application furnish the necessary papers, together with any information in their power as to the names of the various Solicitors engaged in the case. At the same time, the Council thankfully acknowledge the assistance they have already received from so many members of the Profession in furnishing the papers required to prepare accurate reports. PAGE K. B. D. 132 K. B. D. 127 K. B. D. K. B. D. 130 133 K. B. D. 129 OF BEDFORD COLLEGE, CHAIRMAN, COUNCIL AND V. Guest (SURVEYOR OF TAXES) WE, EARL v. COMMISSIONERS OF INLAND REVENUE "ETT, APP. v. HENRY, RESP. E-CAREW AND ANOTHER v. CRADDOCK WILLIAMS г. SINGER AND OTHERS Income tax-Ferry-Exemption-Future tax-30 Geo. 3, c. lxi., ss. 15, 20-Income Tax Act, 1842 (5 & 6 Vict. c. 35), s. 60, Sched. (A), No. III., r. 3-Customs and Inland Revenue Act, 1866 (29 Vict. c. 36), s. 8 Income tax-Foreign possessions-Dividends not remitted to United Kingdom-British trustees for foreign beneficiaries-Liability to income tax-Finance Act, 1914 (4 & 5 Geo. 5, c. 10), s. 5 Income tax-Office or employment of profit-Winding up to unpaid of company-Present by shareholders secretary and liquidator-Income Tax Act, 1842 (5 & 6 Vict. c. 35), s. 146, Sched. (E), rr. 1, 3—Income Tax Act, 1853 (16 & 17 Vict. c. 34), s. 2, Sched. (E) Super-tax-Deductions-Premiums on policies of life assurance-Income Tax Act, 1842 (5 & 6 Vict. c. 35), ss. 163, 164, 190, Sched. (G.), r. 17-Finance (1909-10) Act, 1910 (10 Edw. 7, c. 8), s. 66, sub-s. 2 K. B. D. 127 Super-tax-Method of computation-Sources of incomeContinuance in existence during year of assessmentIncome Tax Act, 1842 (5 & 6 Vict. c. 35), s. 164-Finance (1909-10) Act, 1910 (10 Ewd. 7, c. 8), s. 66-Finance Act, 1916 (6 & 7 Geo. 5, c. 24), s. 24 K. B. D. C. A. K. B. D. 131 126 128 K. B. D. 129 C. A. 126 130 132 131 |