177
THE ESTATES GAZETTE
February 4, 1899.
a small State forest, which should serve three or four principal ends. First, they desired to prove in this small State forest what• the application of sylvicultural methods could do, and what would be their monetary results ; (2) a State forest would present to landowners and people engaged in practical forestry work an object-lesson, showing them, if the experiment was successful, how it was done ; (3) they desired to have an efficient training-ground for students ; and (4) they desired to have a State forest in order that researches might there be carried on, and it would aid them in the compilation of accurate forest statistics for this country. Unfortunately, the Minister of Agriculture did not see his way at present to grant their request. As to the third point, there was, perhaps, no ■subject which was less capable of being taught efficiently without practical demonstrations than scientific forestry, and that was one of the reasons why they were anxious to have a State forest. They were, however, fortunate in having around Edinburgh proprietors of lands and woods who had made them welcome to visit their estates. But there was no doubt whatever that the consumption of timber in the world was increasing by leaps and bounds. It looked as if in the future there might be a wood famine. They should, therefore, set about organising their woods on a sound and practical basis, by applying to them working plans, which would be continuous in their operation, under changes either of proprietorship or management. Colonel Bailey explained what had recently been done in this respect with the woods at Baith, about 800 acres in extent, and what was to be done at Novar, which would have a far-reaching effect on forestry generally in Scotland, and answer the question whether forestry in Scotland would pay (applause). In conclusion, Colonel Bailey introduced his! successor in the chair—the Earl of Mansfield (applause). His Lordship was the owner of extensive woodlands, and interested in the work and objects of the society.
The Earl of Mansfield, who took the chair amid applause, thanked them for their kindness in electing him.
Colonel Bailey, Mr. Malcolm Dunn, and Mr. A. Milne were elected vice-presidents. Mr. Munro Ferguson was re-elected hon. secretary, and Mr. Robert Galloway treasurer and secretary. Both gentlemen were thanked for past services.
The secretary read the letter the Council recently received from the Board of Agriculture regretting that they could not see their way to approach the Treasury for a grant to form a forest area. Colonel Bailey expressed regret that the Board of Agriculture had not seen its way to give practical effect to the sympathy they had expressed.
The Council suggested that the excursion in the autumn should be to Ross-shire and Suther-Lndshire, the Novar, Skibo and Lovat Estates being mentioned. This was generally approved of.
A letter was read from Sir James Gibson-Oraig, giving particulars of a large Scotch fir— one of the best on Riccarton—which had been recently blown down. It was believed to be 270 years old.
At the close of the business meeting, Colonel Bailey gave an account of a recent visit to Canada. He explained that Britain imported annually eighteen million pounds’ worth of timber, of which four million pounds’ worth came from ^ Sweden, four million pounds’ worth from Russia, three and a half from Canada, and two and a half from the United States. The time was not far distant when the States would require and take every surplus stick of wood that Canada could afford to export. Canada had great resources in timber, and if they put their forests under effective control it was not too late to ensure plenty of wood for themselves, and ■some for export to this country. The lecture was illustrated by lime-light views.
The annual dinner was held at the North British Hotel in the evening, under the presidency of the Earl of Mansfield. Colonel Bailey acted as croupier, and among those present were Lord Kyllachy, Mr. Munro Ferguson of Novar, M.P. ; Bailies Mackenzie and Hay ; the Hon. Waldegrave Leslie, the Rev. Arch. Fleming, Mr. James Wylie, Mr. Isaac Connell, Mr. John Hunter, Mr. Malcolm Dunn, Mr. D. P. Laird, Mr. R. V. Mather, Kelso; and Mr. Fraser, Dalziel. The toast of “ The Lord Provost, Magistrates and Council” was proposed by Mr. John Methven, who said Edinburgh possessed no fewer than 16 parks, extending to 583 acres, and costing the ratepayers no more than Id. in the £1. In proposing the toast of the evening, “ The Royal Scottish Ar-boricultural Society,” Lord Kyllachy said there was a largely increasing class of persons beginning to take a really intelligent interest in the growing of wood for commercial purposes. That, so far, was very encouraging, but it had to be acknowledged that the public generally and the newspapers were not alive to the importance of the work the society was doing. Although planting for profit was perhaps the main thing which as a society they looked for, still the planting of trees should be for shelter, for amenity, and for cover. The Chairman, Mr. Munro Ferguson, and Colonel Bailey also spoke.
ton remarked that during “the temporary absence of the man in possession the goods remained in the custody of the law,” and the man might therefore return, “not to retake (for he had not abandoned) but to retain possession of the goods distrained,” whilst Mr. Justice Blackburn added that “Eagleton v. Gutteridge ” was a conclusive authority that a person in constructive possession of goods distrained might use force for the purpose of reobtaining actual possession.
MR. A. W. NEATE.
beginning and a certain ending, otherwise it is not a perfect lease, and a contract for a lease must, in order to satisfy the Statute of Frauds, contain those elements.” In “Humphrey v. Conybeare,” Lord Halsbury said that he considered “Marshall v. Berridge” dead in point, and both on authority and principle the judgment of Mr. Justice Wright in the Court below was affirmed.
A word of notice is called for by the action in which Messrs. Edgar Sales and Clarke were suing a Mr. Bell in respect of damages incurred by them in connection with the withdrawal by him of 12 houses which were to have been
Mr. Arthur Whistler Neate, who passed at the head of the list in the recent preliminary examination of the Surveyors’ Institution, is 18 years of age, and is the son of Mr. A. W. Neate, who has for many years carried on business as a land agent, valuer and auctioneer, at Hungerford and Newbury, and has acquired the agencies of several local estates. Shortly after removing to Newbury, Mr. A. W. Neate, jun., then nine years of age, was placed at the
Grammar School under the Rev. J. Atkins, M.A., LL.B., and remained there until Christmas, 1896, when he at once entered his father’s office. It is perhaps hardly surprising to find him so successful in the recent examination when the following list ■of his earlier successes among junior students is seen:—Cambridge, third class honours, 1894; College of Preceptors, first class, honours division, with distinctions in English, French and Latin (being bracketed first in a competition of 6,342 candidates, when 5,106 passed); Oxford local, first-class of the honours list, with distinctions in English, Latin, French and heat; South Kensington elementary pass in chemistry; all in 1896, taking also the following school prizes: — A special prize for the boy who had distinguished himself most during the year, and first prizes for each of the following: English, French and divinity ; and was head boy of the school.
THE ROYAL SCOTTISH ARBORICULTURAL SOGIETY.
The annual general meeting of the Royal Scottish Arboricultural Society was held on Tuesday of last week, at Edinburgh. Colonel Bailey, president, occupied the chair, supported by the Earl of Mansfield, Mr. Munro Ferguson of Novar, M.P., and the Hon. George Waldegrave Leslie, together with the hon. secretary, Mr. R. Galloway.
Thirty-eight new members were elected. The secretary reported that the number of members was now 802—59 having been elected during the year. In the report special reference was made to the gift of £30 as a Forestry bursary by Mr. Munro Ferguson, M.P., and to his kindness in allowing students to visit the woods at Raith. The treasurer’s report showed that there was a balance at the credit of the society of £124 6s. 9d. The reports were approved.
In the president’s retiring address, Colonel Bailey said it was a common thing to say that forestry did not pay in Scotland, although it was well known that the growing of woods for profit was successful in other countries. People said it was the soil and climate that were responsible for their woods not paying. He thought there was little the matter with the soil when it could produce those magnificent specimen trees which they so often admired in the parks and policies of country mansions. The truth was that their woods were owned privately, and were managed not so much for profit as for ornament and game preserves; and both of these objects militated against the application to them of practical and profitable methods of sylviculture. For more than 30 years this society had been desirous of demonstrating to what extent well-known sylvicultural methods could be satisfactorily applied to the woodlands of this country. They were anxious also that the younger race of foresters should be trained in such methods. During the current year the society addressed a memorial to the Minister of Agriculture, urging that he should establish
sold by auction by the John-street auctioneers. As a general rule, if a principal withdraws a matter from the hands of his agent, and so prevents him earning what he would otherwise have earned, the principal is liable to compensate the agent. But the point in Messrs. Sales’s case was that a reserve of £2,800 had been fixed in connection with the property. Would that reserve have been reached at auction! Mr. Commissioner Kerr refused to pose as GMipus. He declined to estimate the chances, and only gave the plaintiffs judgment for an agreed guinea and their out of pocket expenses. His decision seems quite in accordance with that in “ Chinnock and Galsworthy v. Sainsbury,” but it does not really touch the important general rule to which we have referred.
Builders and contractors might do well to make a note of “Ward and Co. v. The ‘Western Mail,’ Limited,” which was recently before Mr. Justice Wright. The plaintiffs, who were described at some length as “ specialists in granite eoncrete paving and woodblock flooring,” and carry on their business at 15, Great George-street, Westminster, claimed for the price of work done and materials supplied at the defendants’ premises in Cardiff. It appeared that they had laid down some granite concrete paving and wood-block flooring for the defendants under a contract in writing whereby they undertook to do the work “ in a good and workmanlike manner to the satisfaction of the defendants.” The defendants declared they were not satisfied with the work, as cracks and holes had appeared in tin paving and many of the blocks in the flooring had come loose. They therefore refused to pay, and the learned Judge thought they were right, and decided in their favour with costs The fact is that in an important contract or letter it is advisable to weigh every expression and word in diamond scales, as it were. “ In any ordinary case,” said Mr. Justice Wright, “defects in work would only entitle the defendant to some reduction in the amount to be paid. But in this case the contract was1 of a peculiar nature, and the plaintiffs must have known what was implied in the words ‘ to the satisfaction of the defendants.’ The defendants had acted reasonably in rejecting the flooring and paving altogether.”
In commenting in this column (Estates Gazette, October 29, 1898) on “ Jones v. Bernstein,” we alluded at length to other well-known walking or constructive possession cases, and to the statutes which deal with the impounding of goods seized under a distress. After our full report of the proceedings in the County Court (Estates Gazette, October 15, 1898), and of the appeal (which appears in the present issue), a repetition Of the facts here is unnecessary. The point at issue, indeed, was a simple though not exactly an easy one, namely, whether, when goods have been impounded under a distress, and are consequently in the custody of the law, it is necessary that a man should be left in actual and continuous possession of them? Judge Addison thought that it was, but in our previous notice of the litigation we intimated that in our view the correctness of his opinion was very doubtful, and it will now be seen that Mr. Justice Lawrance and Mr. Justice Channell dissented from it and reversed hie Honour’s judgment.
Leave to appeal was given, but we do not think that there is much likelihood of the decision of the Queen’s Bench Division being disturbed. The question did not arise in the same way as it did in “ Duncombe v. Hinks ” and “ Lumsden v. Burnett ” (see Daniels’s “Handbook of the Law of Distress,” p. 45, 3rd ed.), but in an action for treble damages for pound breach. Both Mr. Justice Lawrance and Mr. Justice Channell admitted that there was a strange dearth of authority on the delicate question as to what constitutes an impounding. In the case before them, however, the fact that there had been an impounding was assumed, and the only point left ־was as to the necessity of actual unbroken possession. That point had not been actually decided in “ Kemp v. Christmas,” which was before the Court of Appeal in Midsummer last, but th6 case is an indirect authority for the view taken by the learned Judges last week, and they considered that the matter was put beyond all doubt by the old case of “ Bannister v. Hyde and Collins.” In that case, Mr. Justice Cromp
ífnpírs.
By a Barrister.
The maxim, Aqua curret et debet currere ■— water flows and should be allowed to flow—■is almost as old as the hills from which the running water comes. It was interesting to see the common law rule prevail against the arguments drawn from modern statutes which were opposed to it■ in the case before Mr. Justice Kekewich, which we report in another column, and in which a mill owner was applying for an injunction against a district council to restrain them from interfering with the stream which worked his mill. A very curious point in the dispute was that so far from the proposed interference injuring the plaintiff he would (in the opinion of Mr. Justice Kekewich) be better off in the future than in the past, inasmuch as the flow of water to his mill would be more constant than before. But, as the learned Judge added, that was not the question. “ A riparian owner is entitled to say that the water which flows by his property and is used by him for ordinary or, it may be, extraordinary purposes, shall be allowed to flow in the future as in the past, and he is entitled to insist on that.” Legally speaking, in fine, one is not allowed to do a man good without his consent.
Whether the rule as to running water is always as convenient and proper a one in these days of high civilisation and complicated interests as it was in remote and simple times, might, under some circumstances, be arguable. The subject could only be dealt with by statute, and, as we have intimated, his Lordship thought that the provisions of the Public Health Act, 1875, and the Lands Glauses Act, 1845, quoted on behalf of the District Council, in no way affected the prima facie common law rights of the mill owner. The law on the subject of the rights of upper and lower riparian owners has been thrashed out again and again, said Mr. Justice Kekewich, repeating a remark which Lord Cairns made just a quarter of a century ago in “ The Swindon Waterworks Company v. The Wilts and Berks Canal Navigation Company,” in which case, however, the then Lord Chancellor thought there had been “ a user of the stream which could not be called a reasonable user by the upper owner; it is a confiscation of the rights of the lower owner .	. and
that is done, not for the sake of the tenement of the upper owner, but that the upper owner may make gains by alienating the water to other parties, who have no connection whatever with any part of the stream.”
All leases for years, whether they begin in preesenti or in futuro, must be certain, that is, they must have a certain beginning and a certain ending; otherwise, says that respectable authority, Blackstone, they are not good. There is practically little, if any, difference between a lease and an agreement for a lease nowadays, and with regard to a written agreement for a lease the writing must state the term to be granted, and particularly the time from which the term is to commence; though it will be sufficient if such time can be inferred, as, for instance, if a day be fixed for the payment of a first rent, or if it is connected with a prior writing by which a day is fixed, or even if a date orally agreed on at the time of the agreement be specifically agreed on in writing afterwards (See Woodfall’s “Landlord and Tenant,” p. 96, 16th ed. ; Daniels’s “ Leases: Principles and Points, p. 44). In “ Humphrey ׳!>. Oony-beare,” the agreement for a lease set up by the plaintiff was contained in letters in which the only specification of a date for the commencement of the term was “ say, the 20th of July.” The Court of Appeal held that this was not a certain date, and that consequently the letters did not constitute a sufficient memorandum in writing to satisfy the Statute of Frauds. We hope that we may be allowed to say that it is incomprehensible to us how the plaintiff’s legal advisers could distinguish, or could think that they could distinguish, this case from that of “ Marshall v. Berridge,” not to mention the numerous other authorities which exist upon the subject.
The head note to that case, which was decided in 1881, is “ An executory agreement for a lease does not satisfy the Statute of Frauds unless it can be collected from it on what day the term is to begin, and there is no inference that the term is to commence from the date of the agreement in the absence of language pointing to that conclusion.” Here again, it was a question of endeavouring to piece out an agreement from a series of letters and documents, which very commonly proves a hazardous and expensive experiment. “ The case,” said Lord Justice Baggallay, “ is to my mind disposed of by the fact that no time is limited in writing for the commencement of the term.” “It is essential,” said Lord Justice Lush, “to the validity of a lease that it shall appear either in express terms or by reference to some writing which would make it certain, or by reasonable inference from the language used, on what day the term is to commence. There must be a certain