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DECISIONS IN THE ENGLISH
Sheehan v. Dreamland, Margate Ltd.
REPARATION NEGLIGENCE JURIES TO PERSON VISITING SIDE-SHOW PLACE OF AMUSEMENT.-The defendants were
proprietors of a place of amusement at Margate known as Dreamland Park. The public were invited by the defendants' advertisements to frequent the park. The plaintiff on 13th August 1921 visited the park and obtained from the defendants at the price of 6d. a ticket of admission to a side-show called the Luna Ball. She averred that by the issue of this ticket the defendants impliedly undertook to protect her from unusual danger. The Luna Ball was a deflated balloon, upon which the plaintiff was invited by the person in charge to sit with her feet facing towards the centre. The balloon was then inflated and the plaintiff raised 12 or 13 feet from the ground. Thereafter the balloon was rapidly deflated and inflated again until the plaintiff was thrown off. She averred that no proper means of breaking her fall were provided. As a result of her fall she sustained a fracture of the vertebræ of the neck and other injuries. The case was tried before Avory J. and a special jury. The jury awarded the plaintiff £1000 as damages, for which sum Avory J. gave judgment. The defendants applied to the Court of Appeal for judgment or a new trial. Held that the plaintiff was an invitee and that as there was no evidence that the side
Basin, their refusal of all "self-determination to that region, and their subjection of the population to a despotic government by five Commissioners for a period of fifteen years, have produced a crop of juridical puzzles and political troubles which will test the statesmanship of Europe. The author of this little volume has shewn with great clearness how this illogical solution of the Saar problem resulted from the compromise of conflicting views at the Peace Conference, and how the troubles which have ensued followed naturally from the complete ignoring of the wishes of the people to be governed. Dr Bisschop's treatment of the whole subject is temperate mended to all who wish to have an intelligent and impartial; and his work can be recomunderstanding of what promises to be a storm centre of diplomacy for years to come.
show in question was intrinsically dangerous A nor any evidence of negligence on the part of the defendants or any of their servants, the defendants were not liable. Cox v. Coulson
( 2 K.B. 177) followed.-Court of Appeal (Bankes and Scrutton L.JJ. and Lush J.).— 29th November 1923.
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'SIR WALTER SCOTT'S INCOME TAX.
Politeness requires the assumption that the great majority of our readers are familiar with Lockhart's "Life of Scott," but even they may not object to be reminded of what is there disclosed regarding an attempt to exact income tax from the author of Waverley." But, indeed, the incident occurred in 1813 before the first of the novels had appeared, and what the taxing authorities had in view were the poems and the author's miscellaneous and very numerous and lucrative prose works. The matter is first mentioned in a letter dated 10th December 1813 to his friend Miss Joanna Baillie, then in London:
As to the taxing men I must battle them as I can; they are worse than the great Emathian conqueror who
'bade spare The house of Pindarus, when temple and tower Went to the ground.
Scott had other troubles at the time, and to add to these in the autumn of 1813 a demand was made upon him by the Commissioners of Income Tax to render a Return of the profits of his literary labours during the three preceding years. The language has still a familiar ring. Scott demurred. He consulted high Scottish authorities, by which we take it we are to understand some of his senior Parliament House friends in the actual practice of their profession, who had special experience of revenue cases.
David Hume and every lawyer here whom I have spoken to consider the demand as illegal.
From this we may safely infer that the consultations were on a friendly and not a professional basis, and that the opinions were verbal. Evidently it was felt that Scottish opinion must in such a case be buttressed by that of English lawyers, and so Scott wrote to his friend in London, Mr John Richardson, of Fludyer Street, Westminster, to prepare a "" Case for English counsel. The letter to Richardson contains the following:
1st, It is a patent right, expected to produce an annual, or at least an incidental, profit during the currency of many years; and surely it was never contended that if a man sold a theatrical patent, or a patent for machinery, property-tax should be levied, in the first place, on the full price as paid to the seller, and then on the profits as purchased by the buyer. I am not very expert at figures, but I think it clear that a double taxation takes place.
2d, It should be considered that a book may be the work, not of one year, but of a man's whole life; and as it has been found, in a late case of the Duke of Gordon, that a fall of timber was not subject to property-tax because it comprehended the produce of thirty years, it seems at least equally fair that mental exertions should not be subjected to a harder principle of measurement.
3d, The demand is, so far as I can learn, totally new and unheard of.
4th, Supposing that I died and left my manuscripts to be sold publicly along with the rest of my library, is there any ground for taxing what might be received for the written book, any more than any rare printed book which a speculative bookseller might purchase with a view to re-publication?
The English counsel consulted were Sir Sir William Alexander, and Chief Baron of the Samuel Romilly and Mr Alexander, afterwards Exchequer. They advised in favour of nonliability. The usual tedious correspondence ties at last decided to abandon the claim. with the Department followed, but the authoriLockhart says that they abandoned "their He may have had reason to put it in this broad claim upon the produce of literary labour." way, or he may have been misled into doing so by thinking exclusively of the numerous cases in which Scott sold the publication rights Even as to that, however, for a lump sum.
Sir Walter was usually careful about what he I wish you to lay before either the was doing. Thus when in 1816 he was negotiKing's Counsel or Sir Samuel Romilly ating, through James Ballantyne, with Murray and any other you may approve the of London and Blackwood of Edinburgh for point whether, a copyright being sold the production of "Tales of my Landlord," for the term during which Queen Anne's he wrote to John Ballantyne regarding the envoy's conversations as they would now Act warranted the property to the be called: author, the price is liable in payment of the property-tax. I contend it is not so liable, for the following reasons
James has made one or two important mistakes in [the pouparlers for] the
bargain with Murray and Blackwood. it was based upon the advice of Crown Counsel.
1stly, Having only authority from me to promise 6000 copies, he proposes they shall have the copyright for ever.
I will see their noses cheese first.
Whether the Scottish and English opinions obtained by the bard were wide enough to cover a case like that, we are not told. Turning back to the instructions to Richardson, we see how careful the writer was to make it clear that he was dealing only with out-and-out sales of the property in the copyright "for ever." He says that he is to be advised on the assumption of the "copyright being sold for the term during which the Act warranted the property to the owner," and the main reasons he gives are applicable only to a deal of that nature, and not to a licence for a limited period or for one edition. We can scarcely believe that the Department intimated, or ever acted on, a decision to treat authorship as being different in kind, from the taxation standpoint, from every other profession and occupation. If no sale at all, then Scott's query had no place. If a letting or licence for an annual fee or for a lump sum, again his query does not hold. In these cases we do not doubt that, back to 1813, income tax, when in force, has been exacted, but it would have been interesting if Lockhart had been in possession of, and had stated, more particulars. What he does say is not satisfactory. His statement of the official abandonment, as we have said, is far wider than was required to meet the one case put by Scott, and that statement is made by Lockhart without any sign that he perceives that he is going far beyond his book. He then adds: "I have thought it worth while to preserve some record of this decision, and of the authorities on which it rested, in case such a demand should ever be renewed hereafter." This is again rather loose and unsatisfactory. It would seem, however, to tell us that Scott never paid any income tax on the profits of any of his literary labours. But as to that it is to be remembered that the tax, which originated in 1803, was dropped after Waterloo, and was not revived till 1842. Further, Lockhart seems to say that the opinions of Sir Samuel Romilly and Mr Alexander had been produced to the Income Tax Department, and that it had been those opinions which had moved the officials. If so, that could only be on the effect of complete sales, for those opinions must have been limited to that, unless the London" Case " went far beyond Scott's instructions for its preparation. It may safely be assumed that, whatever was the decision of the Department,
Whatever was the extent of the victory won by Scott for himself and for his brethren of letters, let us congratulate him upon it. But it has long since ceased to hold. We are not aware that this severer régime turns on any change in the taxing words of the successive Acts. But for a long time back all profits of literature, in the widest application of that abused term, have been taxable, even including lump prices for the complete sale of the copyright "for ever." As regards those sales we are merely stating what is, without expressing any opinion on what ought to be. As to that we think Royal Commissions, whether aware or not of Sir Walter's first argument in his letter to Richardson, have conceded that it admits of no logical answer. But the fact is that, while royalties from both patents and copyrights are assessed to income tax, lump prices for sales of patents are treated as capital, while lump prices for sales of copyright are treated as assessable income. The present writer once tried to explain this apparent anomaly to an enquirer on the view of the official doctrine that literature is or may be made a steady occupation, the author turning out so much bulk per day after the manner of Goldsmith, and indeed, of Sir Walter himself, while invention comes by inspiration, to which the reception recorded was-Nonsense! If there is a better explanation we concur with Royal Commissions in saying that we do not know it. So, argumentatively, Sir Walter is unanswered and apparently unanswerable. Logic counts for little in this country, and it is significant that even the latest Royal Commission-that which reported in 1920-abstained from recommending that the law-or it may be only the practice-should be changed.
It may be added that copyright royalties score over patent royalties in respect that the former are treated as earned income when payable to the author, while the latter, even when payable to the inventor, are taken as investment income.
As we go to press we note that the King has been pleased, on the recommendation of the Secretary for Scotland, to whom the name was submitted by the Lord Justice-General, to approve of the rank and dignity of King's Counsel to His Majesty in Scotland being conferred on Mr Robert Macgregor Mitchell, advocate.
EDINBURGH, 27th February 1924.
The sittings of the Second Division of the Court for the trial of causes by jury in the ensuing vacation will begin on Friday, 21st
EDINBURGH, 27th February 1924.
Note. With regard to the transmission of causes for trial at these sittings, agents are referred to the Codify
and was for some time in Largs, where he held several public appointments, including that of Procurator-Fiscal. He returned to Aberdeen about twelve years ago, and for a few years was in partnership with Mr John Middleton under the firm name of Stuart M'Kay & Middleton.
MR A. B. NICOLSON, W.S., a partner of the firm of Davidson & Garden, advocates, Aberdeen, and the proprietor of Glenbervie, Kincardineshire, died at Glenbervie, on 25th February, aged fifty-eight years. Mr Nicolson succeeded to the estate in 1899 on the death of Ahis father. He took a prominent part in the public work of Kincardineshire, was Deputy Lieutenant, member of the County Council, chairman of the Glenbervie Parish Council, and represented Kincardineshire on the Board of Governors of the North of Scotland College of Agriculture. Mr Nicolson was a B.A. of University College, Oxford, and qualified as a Writer to the Signet in 1891. He is survived by his widow, a daughter of the late Mr A. J. Napier, W.S., Heriot Row, Edinburgh, and by a son and two daughters.
ing Act of Sederunt, Book F, chapter i., section 5. copy of the Lord Ordinary's interlocutor allowing the trial to proceed at the sittings, along with a print of the closed record and of the adjusted issue or issues, must be handed to the Keeper of the Rolls of the Division in which the cause is to be tried, and that not later than twelve o'clock noon on Wednesday, 5th March, other wise the cause will not be taken at the sittings.
BOX-DAYS-SPRING VACATION, 1924.-Edinburgh, 27th February 1924.-The Lords of Council and Session appoint Thursday, 10th April, and Thursday, 1st May, to be the Boxdays in the ensuing vacation.
J. A. CLYDE, I.P.D.
THE Lord Ordinary officiating on the Bills will sit in Court on Wednesday, 16th April, and Wednesday, 7th May, each day at eleven o'clock forenoon, for the, disposal of motions and other business falling under the 93rd section of the Court of Session Act, 1868, and the 3rd section of chapter i., Book A, Codifying Act of Sederunt; and Rolls will be taken up on Monday, 14th April, and Monday, 5th May, between the hours of eleven and twelve o'clock.
EDINBURGH, 27th February 1924.
A SPECIAL meeting of the Faculty of Procurators in Glasgow was held last week in the Faculty Hall, St George's Place, for the purpose of appointing an auditor of accounts in succession to the late Mr John Fraser Orr. On a ballot, Mr William Stirling, writer, 184 West Regent Street, Glasgow, was elected auditor. The following law agents were admitted members of Faculty: John Rankin, B.L., 138 West Regent Street, Glasgow; Alexander Moncrieff Mitchell, jun., LL.B., 160 West George Street, Glasgow; Charles Batchelor, 50 West Regent Street, Glasgow ; and John Drummond Strathern, Procurator-Fiscal, County Buildings, Glasgow.
MR R. STUART M'KAY, solicitor, has died suddenly at his residence, 2 Orchard Place, Aberdeen. He had not been in good health for some time. He was fifty-one years of age,
DECISIONS IN THE ENGLISH
Sutton v. New Tabernacle (Old Street
SOCIETY-RIGHT ΤΟ EXPEL-PREGNANCY OF
have the right to remain a member of the and against the owners of the lorry. The
Rex v. Devon Justices.
CRIMINAL LAW-QUARTER SESSIONS- -JURISDICTION-LARCENY COMMITTED ON ONE OF THE KING'S SHIPS LYING ABOVE THE FORTH BRIDGE
-ARREST IN ENGLAND—LARCENY ACT, 1861 (24 & 25 VICT. CAP. 96), SECTION 115 LARCENY ACT, 1916 (6 & 7 GEO. V. CAP. 50); SECTION 17 (1) (A).-This was a rule nisi calling upon the Justices of the County of Devon to shew cause why they should not proceed with an indictment against Roderick William Castle whereby he was charged with larceny contrary to section 17 (1) (a) of the Larceny Act, 1916, upon the ground that there was jurisdiction to try the said Roderick William Castle by virtue of section 115 of the Larceny Act, 1861. On 3rd October 1923, at the Devon Quarter Sessions, a true bill was found by the Grand Jury, charging Roderick William Castle with larceny on the high seas.' The offence was alleged to have taken place on 10th July 1923 on board H.M.S. Princess Margaret,' then stationed in the Firth of Forth at a point opposite Rosyth, above the Forth Bridge, but at a place to which the largest ships in the Navy could go. The justices declined to proceed with the indictment on the ground that section 115 of the Larceny Act, 1861, did not extend to offences committed in estuaries in Scotland, and that the accused ought to be tried in the Scottish Courts. Held that the offence being committed in one of His Majesty's ships was committed within the jurisdiction of the Admiralty of England, and the Quarter Sessions for the County of Devon had jurisdiction to try the indictment.-K.B. Div. (Lord Hewart C.J., Sankey and Swift JJ.).
-21st December 1923.
Pratt v. Patrick and Others.
PRINCIPAL AND AGENT—NEGLIGENCE-LIABILITY OF OWNER OF MOTOR FOR NEGLIGENCE OF FRIEND WHO IS DRIVING HIM.—On 17th May 1923 the defendant James Patrick, the owner of a motor car, was being driven therein by one Essex, a friend of his. Arthur James Pratt, a bookmaker, who was a gratuitous passenger in the car, was seated in the back seat, while Patrick was in front beside Essex. Near Tewkesbury the car came into collision with a motor lorry, and Pratt was so seriously injured that he died on 18th May 1923. Pratt's widow brought an action against Patrick under the Fatal Accidents Act, 1846, on behalf of herself and her four infant children,
his servant or agent, and the owners of the motor lorry pleaded, inter alia, that the accident was due to the negligence of the defendant Patrick's servant or agent. Held (1) on the evidence Essex, and not the driver of the motor lorry, was in fault; (2) that Patrick was bound to exercise due and reasonable care towards his
passenger, Pratt; (3) that if the defendant Patrick had been driving and had driven as Essex drove he would have been liable in damages; (4) that as the defendant Patrick was in the car and in control of it, he was no less liable by reason of the fact that he had entrusted the actual physical management of the car and its mechanical control to Essex,
whose negligence caused the collision; and (5) that the defendant Patrick was liable for the costs of the successful defendants, the owners of the motor lorry. Wheatley v. (6 L.J., N.S., Ex. 193) and Samson v. Aitchison J.).—21st December 1923. ( A.C. 844) followed.-K.B. Div. (Acton
It will be a matter of regret to the many users of "Buckley's Company Law" that this new edition lacks, for the first time, the author's own editorship. It is, as Lord Wrenbury informs us in his preface, more than fifty years since he published the first edition, and all subsequent issues until this one have been the work of his own hand. The author has, however, been fortunate in the hands to which he has entrusted the work; and readers may rely on the care and diligence with which the later modifications of the law and practice of companies have been incorporated. The method of treatment of a branch of law in the form of a commentary of one or more statutes is one which is open to many objections. It tends to be unscientific and illogical in arrangement. But if ever the method is excusable, it is in dealing with a department of law which is entirely the creation of statute. This was the reason given by the author of this work in the preface to his first edition, and the remarkable success which the book has achieved may offer further justification.