Εικόνες σελίδας
Ηλεκτρ. έκδοση







say fifteen

80 feet long I do not feel very strongly either but in no sense was there any

exclusive possesone way or the other ; but, if I were compelled sion, as I read the facts, and the arbitrator there to give a judgment upon it, I think I should found there was no exclusive possession calcuhold that the plaintiff originally possessed it. I lated to make the possession of the land change am afraid I am more influenced perhaps than I so as to put it in him, and dispossess the real ought to be by the exact coincidence of the

But such

such a piece of land and measurements. I do not know whether there such

to to have was or was not originally a drain there, and I relation at all to such a thing as we are now place no reliance at all upon any supposed pre discussing. The true nature of this particular sumption that arises from the position of the piece of land is that it is inclosed. It cannot hedge and the ditch. I do not know whether be denied that, according to the ordinary it was a ditch or not. Very likely it was a course of procedure, the person who now says small grip formed by the lie of the land, and he owns it could not get to it. I do not deny that the wash of the rain water rushing down grad- he could have crept through the hedge, or, if it nally enlarged it until it became what people i had been a brick wall, that he could have climbed agreed to call a ditch ; but the undoubted fact over the wall, but that is not the ordinary and remains that at one period the plaintiff's prede- usual mode of access. That is the exclusion—the cessor in the title did cover it in and did make dispossession, which seems to me to be so ima drain, although that fact also is qualified by portant in this case. It is true that for a certhis, that, in making the drain, it was made a

tain number of years

years drain for both houses, and one perhaps might which is, I think, the longest period of which infer that it was done at the joint instance of there is actual evidence, the owner of the adboth parties, as it undoubtedly did drain both joining garden (perhaps the original owner of houses. We do not know anything at all about this piece of land) was in the habit, by his agent, the facts except that it was done by the plain- of going into the other garden and clipping the tiff's predecessor in title, and it might possibly hedge. But the very same witness who proves have been done by him at the expense, or with that, proves that he had at some time deposited the assent, of the defendant's predecessor in the clippings on the midden belonging to the title. But, coupling the description on the de- defendant, and that sometimes he left them at fendant's conveyance with the undoubted fact other parts of the ground; but, as was very that it was the plaintiff that in fact did cover candidly and fairly admitted, he was doing acts in this thing which has now become a sewer (I

which by no possibility could be acts done as of hardly know how to describe it), the inclination right. Neither, as far as I can see, was there of my opinion undoubtedly is that it did once any right to go through the gate. belong to the plaintiff. But then the question fact that he could have got through the hedge arises whether, under the Statute of Limitations,

indicates, to my mind, that there could have the occupation of it since that time has not been no right to go through the gate, which adbeen such as to exclude the plaintiff and to mittedly belongs to the present defendant. Then give it to the defendant. I come to the con

are we to infer, although it is accompanied by clusion that it has. It is impossible, I think, to a request to be allowed to go through the gate speak with exact.precision about the degree of the present defendant, accompanied by acts of possession or dispossession that will do which undoubtedly are done by permission, unless you have regard, as Cotton. L. J. said in that there is still a possession in the plaintiff Leigh v. jack (ubi sup.), to the nature of the which entitles him to say he has never been disproperty. In that case, which the Vice-Chan- possessed, because he did clip this hedge? I cellor himself quoted, the person who set up a confess that does not appear to me to be a reapossession inconsistent with the rights of the sonable inference. When one comes to see what person to whom the property originally be the property of the defendant is that part of longed, had a strip of land on either side of an this piece of land is covered with cobble stones intended road, and he incumbered that in- and made a part of the yard; that over part of tended road with various articles of his trade, I it trees have been planted; that over another

The very


part of it a rose garden, or a portion of a rose

The unions are active, and often aggarden, has been made; when one considers the gressive, bodies; they control and direct the continuity of the pathway which is cindered and operations of numerous agents, and support treated as part of the defendant's garden, it their actions by the aid of the large funds at seems to me it is about as strong an aggregate their disposal; but they have no legal corporate of acts of ownership as you can well imagine for existence, and, consequently, no general legal the purpose of excluding the possession of any responsibility. No successful litigant can hold body else.

I think the letter from the solicitors their funds liable for costs or damages. Thus in 1893 does possess an importance which I had the union embarks on litigation with a limitanot at first attached to it, because it is plain that tion upon its risks which no other litigant enfrom whoever the solicitors who wrote that let- joys; it may be guilty of maintenance, as a soter got their information, the belief on the part ciety, without responsibility, and its officers and of the plaintiff and his advisers was, that the servants, acting in the scope of their employhedge was the boundary and that the com ment, may commit torts without entailing any plaint was of injury done to the hedge. liability upon it. Its actual existence as an inTheir belief would not perhaps be in itself very stitution is, of course, perfectly well known, important, but I think their belief reflects light and is, for certain purposes, recognized by law. upon what must have been the character of the Its control over its agents, who are often indeed entering into the defendant's garden from time its directors, and its normal acquiescence in or to time during the fifteen years relied on. If

concurrence with their acts, not only in cases the plaintiff believed the hedge was the bound where these are legal, but also where they ary he would naturally do what I have a strong chance to overstep the limit of the law, are nosuspicion he did do, namely, get permission to go torious. But, unlike every other principal, it through the gate and also to throw the clippings is not answerable for the acts of its agents, beupon the midden. Under these circumstances

cause it is not a corporation, and has no legal I come to the conclusion that, whatever may personality. have been the original state of the title, there “ The anomalies of this position are not, it has been complete dispossession of the plaintiff appears, the result of accident. They were dehere, and that, subject to the right, which is also signed when the unions were formally legalized left in obscurity, for the joint occupation and by the Trade C'nion Act, 1871, by the promotuser of the drain pipes themselves for the pur ers of the act on the workmen's behall, for the pose of carrying the drainage from both houses, protection of the union funds. The act, in the defendant is now entitled to the possession providing that the purposes of a trade union of this piece of land in dispute.

shall not be deemed to be unlawful merely beIt will be of interest in this State, as well as stipulated that nothing in its provisions should

cause they are in restraint of trade, expressly in the other parts of the l'nited States to read

enable any court to entertain legal proceedings the article of the Legal Immunities of Trades

to enforce agreements between the members of Unions which recently appeared in the Lund

a union, or certain other specified agreements. Journal, and which discusses the decisions and It stopped short of the obvious step of incorpostatutes in England. The article in question is rating the union, and, while vesting the union's as follows:

property in trustees for the protection of the “Several incidents arising out of recent members' interests, it constituted payments out strikes and labor troubles have called attention of the funds by the trustees for any purposes to the strange and anomalous position in which other than those directed by the union rules a trades unions at present stand as regards the penal offense. It follows that the union canlaw, and the accession to office of the Duke of not, as a principal, be held accountable for the Devonshire, who appended a valuable supple- acts of its agents. And there does not appear ment dealing with the matter to the report of to be any means whatever by which a collective the royal commission on labor, over which he responsibility can be brought home to its mempresided, gives ground for expectation that it bers. (See Temperton 1. Russell, 62 Law J. will soon receive the attention of the govern- | Rep. (9. B. 300.)

“It can hardly be doubted that the facility duced into the late Parliament to require the thus afforded to a trade union to direct or trade union as a term of the submission of any maintain the operations of the active partisans question as to future wages to arbitration to in a trade dispute with immunity is conducive give security for its observance of the award by to infractions of the law. Its pickets will care making a deposit of money. But this device little for the risk of fines when they know the for the partial and indirect solution of the diffidefense will be conducted at the union's cost, culty would rarely commend itself to the offi. and the amount of the fine will usually be cials of a union for adoption, even if they hapmeasured by the poverty of the prisoner, al- pened to have sufficient funds available for the though it is paid out of the war chest of his

purpose. backers. Its agitators will be reckless in pub

“There can be no doubt that, just and exlishing libels, or in urging workmen to break pedient as the alteration of the law here sugtheir contracts, if they also are defended by gested appears to be, it would not be agreeable union funds, and are too poor to fear a judg- to many of the trade union leaders. 'The bare ment for damages or costs. The apparent un- legalization ’ (by which, it is presumed, is meant fairness of forcing an employer, competent and the incorporation of the unions) 'would have compellable to pay if he is in the wrong, to pro- brought trade unionists under the general law ceed against or to answer proceedings by work and subjected them to the constant and harassmen who have nothing to pay with, and behind ing interference of courts of justice. The whom their union stands to provide funds so spirit of the law and the prejudice of lawyers long as it pleases, and no longer, it is not neces

were and are alien to the purposes and collectsary here to dwell upon. But there are other live action of trade societies,' say Mr. and Mrs. considerations which suggest that the incorpo- Webb. And in a minority report of Messrs. Abraration of the unions would be for the public ham, Austin, Mawdsley and Tom Mann, atbenefit. Collective bargaining between the tached to the report of the royal commission on union, representing the workmen of a trade, labor, these gentlemen state that, in their opinand an employer or group of employers, is regarded by many observers as the most hopeful This suggestion,' they say, "is, that it would be

ion, the proposal is open to the gravest objection. proposal for the determination of industrial quarrels. The modern trade union has alway's desirable to make trade unions liable to be declared this to be one of its primary objects. the action of their officers or agents.

sued by any person who had a grievance against But effective bargaining is impracticable, and

trade union were liable to be perpetually haeffective contract is out of the question, unless

rassed by actions at law on account of the doeach party can be made responsible to the

ings of individual members; if trade union other if he attempts to break the agreement. funds were to be depleted by lawyer's fees and And, further, if the experiment of arbitrationwhether optional or compulsory- is ever to be costs, if not even by damages and fines, it

would go far to make trade unionism impossifairly tried, the incorporation of the unions is an essential condition of the undertaking. To ble for any but the most prosperous and experi

enced artisans.' allow the authority of a union to be exerted, and its funds to be employed for the purpose

“No doubt it would be advisable to mainof urging or aiding its members to disregard tain the rule of the act of 1871, which denies the award of the referee, would be to strike his the court's jurisdiction over agreements bejurisdiction with impotence. No employer tween the members in regard to membership, would continue to submit to the chances of ar or in respect of sick fund and other benefits. bitration if, in the event of a determination in Perhaps it would also be necessary to require his favor, his real opponent were permitted to the sick and insurance funds to be separated disobey it with impunity. The obvious inap- from the strike and other funds of the unions, plicability of this peaceful method of settle and to protect the former from liability. But ment for industrial disputes to the present legal | the exemption of the union and its funds from positions of the parties has led Sir John Lub- liability to the law which its officials have bock in the Arbitration Bill, which he intro- I broken on its behalf ought not to commend it

If every

self to the law-abiding sections of the com such an agreement was made to depend upon munity.

actual proof of public prejudice or injury, it

would be very difficult in any case to establish In People v. Sheldon, 139 N. Y. 251; 34 N. E. 785, certain coal dealers organized a com

the invalidity, although the moral evidence

might be very convincing.” pany known as the Lockport Coal Exchange. The object of the organization was to prevent Undoubtedly there is a peculiar prejudice on competition in the price of coal among the re- the part of many Americans against individuals tail dealers in that city, by constituting the ex who either have titles thrust on them or who change the sole authority to fix the price which earnestly seek them. Their is no particular should be charged by the members for coal sold stigma attached to the numerous military and by them. Sheldon and others, members of the political titles in this country which many have exchange, were indicted, charged with the prefixed to their names. The article on the offense of doing an art injurious to trade or Anomalies of Law Peerages which appeared in commerce. The trial judge submitted the case the Low Time's was as follows: to the jury upon the theory that, if the defend The fact that the peerages to be conferred on ants entered into the organization for the pur- Sir Henry James and Mr. Matthews are to be pose of controlling the price of coal and man- granted in special remainder, and will descend aging the business of the sale thereof, so as to respectively to the brother of Sir Henry James prevent competition in the price between the and the nephew of Mr. Matthews, may render members of the exchange, the agreement was it of interest to note that in the last and present illegal. The jury found the defendants guilty: centuries several peerages granted to legal perIt was held that the principle upon which the sonages have been in special remainder. Thus, case was submitted to the jury was sanctioned in the last century,


peerages of Lord Mansby the authorities.

field (lord chief justice), of Lord Thurlow (lord Andrew, C. J., in delivering the opinion of chancellor), and of the Earl of Rosslyn, better the court, said: “The question is, was the known as Lord Loughborough, the immediate agreement, in view of what might have been successor of Lord Thurlow in the lord chandone under it, and the fact that it was an agreecellorship, were all granted in special remainder; ment, the effect of which was to prevent com- while, in the present century, the peerage petition among the coal dealers, one upon granted to Lord Brougham on becoming lord which the law fixes the brand of condemnation? | chancellor, and to Sir Edmund Beckett, Q. C. It has hitherto been an accepted maxim in po- | (Lord Grimthorpe), were likewise in special litical economy that competition is the life of remainder. trade. The courts have acted upon and

In one instance, at least, i peerage granted adopted this maxim in passing upon the valid-in special remainder has raised questions of the ity of agreements, the design of which was to highest legal and constitutional interest. Thus, prevent competition in trade, and have held in 180o, an Irish peerage was granted to Mr. such agreements to be invalid.” Again, he | Blake, limited to him and to his heirs male, and says: "Agreements to prevent competition in "in default thereof to the heirs male of his trade are, in contemplation of law, injurious father." Mr. Blake died without male issue, to trade, because they are liable to be injuri- and predeceased his father, to whose heirs the ously used. The present case may be used as peerage was limited, but Nemo hure's est cientis. an illustration. The price of coal now fixed by The editor of the Cornwallis Correspondence the exchange may be reasonable in view of the thus wrote, fifty years after this creation: “At interests, both of dealers and consumers, but | Lord Wallscourt's death his father was still the organization may not always be guided by alive with an heir apparent only in the person the principle of absolute justice.

It of a grandison. Doubts arose as to whether in agreements and combinations to prevent com law the peerage was not therefore extinet, and, petition in prices are or may be hurtful to trade, although the young man succeeded to his the only sure remedy is to prohibit all agree uncle's title, neither he nor any subsequent ments of that character. If the validity of I Lord Wallscourt has ever brought the question


to issue by claiming to vote for an (Irish) repre- Baron, and Lord Russell, the Lord Chief Jussentative peer.”

tice of England, would not have, as an ex-Lord Then, too, it has not been unusual to confer of Appeal in Ordinary, a seat in the House of a peerage on the wife of a law officer of the Lords. Crown whose services in the House of Commons could not be spared to his party. Thus,

In line with much that we have said in regard the wife of John Wolfe (afterwards Viscount to simplicity in legal procedure and the steps Kilmardon and Lord Chief Justice of Ireland) in the right directions is the adoption by the was, during his Attorney-Generalship in 1795, Illinois Legislature of the Torrens act, which created Baroness Kilmardon ; so to the wife of this winter became a law. The Chicago Legal John Toler (Earl of Norbury and Lord Chief | News, in speaking of this statute, says: Justice of the Common Peas in Ireland) was,

'One of the most important acts passed by while he was Solicitor-General, created Baroness the Legislature of this State at its session which Norwood. In England the wife of Sir John ended the 14th of June, is the “Act concern(Lord Campbell) was, in 1836, when her hus-ing Land Titles," commonly called the Torrens band was Attorney-General, created Baroness law, after Sir Robert Torrens, who first proStratheden. She died a year before her hus- posed the system for South Australia, where it band, who was also elevated to the peerage,

had been in operation since 1858. Illinois is and on her death her son, the present Lord

the first in this country to put that system upon Stratheden and Campbell, in the lifetime of his its statute books. It will be found in the Legal father, became a peer of the realm.

Neius edition of the session laws of 1895, which It is, moreover, a curious circumstance that will appear in a few days. By the terms of the all efforts at the reform or modification of the act, however, it is not to take effect in any constitution of the peerage have been made in county until it is adopted in that county by a the cases of peerages conferred on legal person

vote of the people. The friends of the act ages. Thus, in 1856, when an attempt was

believe it will be adopted in Cook county by an made to create life peerages, Sir James Parke, overwhelming vote at the next November eleca baron of the Exchequer, was created by

tion. letters patent, under the title of Lord Wensley

"Under this act the title is registered in condale, a peer for life only. The House of Lords, traclistinction to the registration of the evidences at the instance of Lord Lyndhurst, an ex-Lord of title. The central principle of the act is that Chancellor, whose speech, full of quotations every question, whether of form or substance, from black-letter authorities, repeated from that may affect the title or interest intended to memory, his sight being impaired, was regarded be conveyed, shall be settled once for all at the as one of the greatest of intellectual efforts, re

time of the transfer. fused admission to a life peer. The Crown “As a consequence there will be no going yielded to their pretensions, and Lord Wensley back of the certificate of title. The history of dale received a fresh creation by a patent re

the title back of this certificate is rendered of ferring to his heirs male, although he had no as little consequence as the history of the title male issue. Again, when the Lords of Appeal in to a share of stock in a corporation. There Ordinary were first constituted under the pro- will be no occasion to irquire into it. This visions of the Appellate Jurisdiction Act in will, in time, do away with abstracts of title 1876, they were to sit and vote so long only as altogether. The manner of keeping the books they held office, but they were to rank for life in the registrar's office is very simple. It is as Barons, with such titles as the Crown might like keeping a ledger account with each piece appoint. By an amending Act in 1887 Lords of property; but few books will be required. of Appeal in Ordinary, on vacating their By reference to the tract index, one will find on office, still continued to be Lords of Parlia- what page the account with a given piece of ment. Under the provisions of the original property is to be found, and by looking at that Act of 1876 we should have, in the case of page, the condition of the title will be seen at resignation or removal froin office of a Lord of a glance. No transfer can be made or lien put Appeals in Ordinary, a non-Parliamentary | upon the property except upon the record.

« ΠροηγούμενηΣυνέχεια »