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i;,-^:.
'^'^ THE DIGEST
OF
ENGLISH CASE LAW
CONTAINING THE
REPORTED DECISIONS
OF THE
SUPERIOR COURTS,
AND
A SELECTION FROM THOSE OF THE SCOTTISH AND
IRISH COURTS
REPORTED DURING THE YEARS
1911 TO 1915
UNDEK THE GEXERAI, EniTORSHIP OF
JOHN MEWS
BARRISTER-AT-LAW.
rt' 4l
^\3
LONDON :
SWEET AND MAXWELL, Limited. i STEVENS AND SONS, Limitkd,
8 CHANCERY LANE. ! 119 & 120 CHANCERY LANE.
191G.
PUBLISHERS' PREFACE.
This work contains a Digest of the cases reported during the years
1911 to 1915, botli inclusive, in all the current series of English
Reports, a list of which is printed overleaf, and of such cases in the
Law Reports, Ireland, the Court of Session Cases, and Law Reports
(Indian Appeals) as affect English Law.
It continues Mews' Digest of English Case Law. This standard
Digest was published in 1898, and contains in 16 volumes the whole
body of living case law to the end of 1897.
In 1911 there was published a Supplement containing a Digest of
the cases from 1897 to 1910. This Digest Avas so arranged that it
could be bound up in the appropriate volumes of the main work, thus
bringing the cases in each volume down to the end of 1910, or could be
bound as a separate Digest in three volumes. At the same time a new
index of cases, containing under one alphabet all the cases in the main
work and the supplement, was published to take the place of the original
index volume.
Mews' English Digest System therefore consists of :
(1) The Digest of English Case Law to 1910, in 16 volumes.
(2) This Quinquennial Digest covering 1911 to 1915.
It will, as previously, be continued by Annual Digests with Quarterly
cumulative advance issues, and a separate " Noter-up " on gummed
paper.
SWEET & MAXWELL, Ltd.
STEVENS & SONS, Ltd.
JaniKirij 1916.
REPORTS COMPRISED IN THIS VOLUME.
Reports.
Abbreviations. i
Courts.
Aspinall's Maritime Cases
Asp. M.C.
All.
British and Colonial Prize C
ases
' P. Cas
All.
Commercial Cases
1 Com. Cas.
CoiiimercjHl Cases.
Court of Justiciary Cases
' [19101— ri915] S.C. (J.) .
Court of Justiciary.
Court of Session Cases
[1910] — [1915] S.C. .
Court of Session
Cox's Criminal Cases
Cox C.C.
Central Criminal and Crown.
Hansen's Bankruptcy Reports
ri915]H.B.R. .
Bankruptcy and Company Cases.
Irish Reports
[19111 — [1915] l&2Ir. K.
All.
Justice of the Peace .
J. P.'
Law Journal
L. J
Law Reports
[3915]A.C.;P. ;Ch. ;K.B.
■
Ind. App.
Privy Council.
Law Times (n.s.)
; L- T
All.
Local Government Reports
L. G. R.
Manson ....
Manson ....
Bankruptcy and Company Cases.
Patent, Design, and T
radf
Mark Cases .
i R. P. C
All.
Railway and Canal Traffic C
ases
I Ry. & Can. Traff. Cas.
Railway Commissioners.
Smith (in continuation of
Fos
and Smith)
1 Smith ....
Registration Cases.
Solicitors' Journal
. S. J
All.
Tax Cases
Tax Cas
Revenue Cases.
Times Law Reports .
. T. L. R
All.
"Weekly Notes .
. W. N
All.
Workmen's Compensation
anc
1
Insurance Reports .
[1912]— [19151 W.C. & I.
All.
Rep
1
ABBREVIATIONS
App. Cas. or A.C., Appeal Cases (Laiv Reports)
Bk., Bankruptcy.
C.A.. Court of Appeal.
C.C.A., Court of Criminal Appeal.
C.C.R., Crown Cases Reserved.
Ch., Chancery.
Ch. D., Chancery Division.
D., Divisional Court.
E., England.
Ex. D., Exchequer Division.
H.L., House of Lords.
It., Ireland.
JJ. and J., Justices, Justice.
K.B., King's Bench.
K.B. D., King's Bench Division.
L.C., Lord Chancellor.
Ij.JJ. and L.J., Lords Justices, Lord Justice.
L. J. N.C. (Law Journal, Notes of Cases).
L. R., Law Reports.
L T. J., Law Times Journal.
M.C, Magistrates' Cases {Law Journal).
M.R.. Master of the Rolls.
P.C, Privy Council.
P. D., Probate. Divorce and Admiralty Division.
Prob. or P., Probate.
Q.B., Queen's Bench.
Q.B. D., Queen's Bench Division.
Sc, Scotland.
S.P., Same Point or Principle.
W. N., Weekly Notes (Law Reports).
TABLE OF CASES
COL.
Aarons, In re; Trustee, ex parte (1914) 129
A. B., In the goods of (1914) 1775
Abbey v. Gutteres (1911) 1670
Abbott & Co., In re ; Abbott v. The Com-
pany (1913) 278
Abchurch Steamship Co. v. Stinnes
(1911) 1460
Abenheim, In re; Abenheim, ex parte
(1913) 113
Aberdonia Cars, Lim., v. Brown, Hughes
& Strachan, Lim. (1915) 328
Abrahams, In re; Abrahams v. Bendon
(1911) 1830
V. Campbell (1911) 337
■ V. Dimmock (1915) 1029
Ackerley, In re; Chapman v. Andrew
(1913) 1144
Ackworth School v. Betts (1915) 1301
Actien-Gesellschaft fiir Anilin Fabrika-
tion V. Levinstein, Lim. (1915) ... 15, 1692
Actien-Gesellschaft Hommel's Haema-
togen V. Hommel (1912) 1602
Adam v. Fisher (1914) 506
V. Ward (1915) 495
Adam Steamship Co. v. London Assur-
ance Corporation (1914) 511
Adams v. Adams (1914) 661
V. Thrift (1915) 235
V. Ursell (1913) 1079
Adamson, In re; Public Trustee v.
Billing (1913) 32, 325
V. Anderson & Co. (1913) 1910
Adcock's Trustee v. Budge Rural Council
(1911) 1881
Addie's Trustees v. Jackson (1913) 1784
Admed Musaji Saleji v. Hashim
Ebrahim Saleji (1915) 1095
Adriatic, The (1914) 1505
, , and The Wellington (1914) ... 1478
Affleck V. Hammond (1912) 137, 1174
Ahmedbhoy Habbibhoy v. Bombay Fire
and Marine Insurance Co. (1912) 718
Aiken v. Caledonian Railway (1913) 496
Ainsworth v. Cheshire County Council
(Clerk) (1911) 540
, In re ; Finch v. Smith (1915) ... 575, 1320
Aird V. Bristol Corporation (1912) 50
Aitken v. Finlavson, Bousfield & Co.
(1914) :. 1914
Akers v. Daubney (1915) 993
Aktiebolaget Robertsfors and Soci^t^
Aaonyme des Papeteries, In re (1911) 1185
Aktieselskabet Adalands v. Whitaker
(1913) 1463
COL.
Aktieselskabet Dampskibet Forto v.
Orkney Harbour Commissioners (1915) 1515
Aktiesselskabet Dampskib " Hercules "
V. Grand Trunk Pacific Railway (1912) 1163
Alderson v. Bishop Auckland Urban
Council (1913) 925
Aldridge v. Merry (1913) 1910
Aldworth, The (Cargo ex) (1914) 1699
Alexander v. Curragh (1913) 382
V. Tracy (1915) 886
Alexandra Docks and Railway Co. v. Taff
Yale Railway (1912) 734
Alfred Nobel, The (1915) 1700
Allardice v. Allardice (1912) 216
Allen, In re; Shaw, ex parte (1914) 87
V. Francis (1914) 707, 1969
V. Great Eastern Railway (1914) ... 1957
V. Hyatt (1914) 252
V. Inland Revenue Commissioners
(1914) 1315
V. King (1915) 850
V. London County and Westminster
Bank (1915) 1031
V. London Guarantee and Accident
Co. (1912) 715
Allis Chalmers Co. v. Fidelity and
Deposit Co. of Maryland (1914) 721
Allison V. Independent Press Cable
Association (1911) 1162
Allix, In re; Trustee, ex parte (1914) ... 133
All Saints, Westbury, In re (1914) 526
Allsop, In re; W^hittaker v. Bamford
(1913) 1654
Amalgamated Properties of Rhodesia,
Lim., In re (1914) 314, 367
Amalgamated Society of Engineers v.
Jones (1913) 1626
Amalgamated Society of Railway Ser-
vants, In re; Addison v. Pilcher (1911) 1185
Amber Size and Chemical Co. v. Menzel
(1913) 957
Ambrose's Estate, In re (1914) 1041
American Surety Co. v. Wrightson (1911) 721
American Thread Co. v. Jovce (1913) ... 1277
Amerika, The (1914) " 1481
Amorduct Manufacturing Co. v. Defries
& Co. (1914) 12, 318
Amorette v. James (1914) 1580
Amys V. Barton (1911) 1913, 1975
Ancora, The (1915) 1507
Anderson, In re; New Zealand Official
Assignee, ex parte (1911) 110
V. Britcher (1913) 909
V. Dickie (1915) 1383
6
TABLE OF CASES.
Anderton Co. v. River Weaver Trustees
(1911) 1251
Andrew v. Kuehnrich (1913) 1616, 1618
Andrews v. Abertillery Urban Council
(1911) 547
Angel V. Jay (1911) 384, 489, 812
Angell V. John Bull, Lim. (1915) 502
Anglesey (Marquess) v. Inland Revenue
Commissioners (1913) 1317
Anglo-American Oil Co. v. Port of
London Authority (1913) 1514
Anglo-American Telegraph Co., Lim., In
re (1911) 232
Anglo-Hellenic Steamship Co. v. Dreyfus
(1913) 1456
Anglo-Newfoundland Development Co.
V. Newfoundland Pine and Pulp Co.
(1914) 487
Anne, The (1914) 389
Anuess v. Grivell (1915) 908
Anselma de Larrinaga, The (1913) 1483
Anson, In re; Buller v. Anson (1914) ... 1331
Anstey v. Ocean Marine Insurance Co.
(1913) 1535
Anstruther's Trustees v. Inland Revenue
(1912) 1316
Antares, The (1915) 1709
Ant Jurgens Margarinefabricken v.
Dreyfus & Co. (1914) 1207, 1355, 1369
Ape, The (1915) 1490
Appleyard v. Baugham (1913) 1750
Arbuthnot, In re; Arbuthnot v. Arbuth-
not (1915) 1834
Archer's Estate, In re (1914) 1047
" Arden " Steamship Co. v. Mathwin
(1912) 1461
Argyll (Duke) v. Inland Revenue Com-
nnssioners (1913) 1283
Argylls, Lim. v. Ritchie & Whiteman
(1914) 315
, V. Coxeter (1913) 319
Ariadne. The (1911) 1496
Arlidge v. Hampstead Urban Council
(1915) 893
V. Scrase (1915) 890
Armitage ti. Borgmann (1915) 15
V. Nicholson (1913) 920
Armorduct Manufacturing Co. v. General
Incandescent Co. (1911) 318
Armour v. Duff & Co. (1912) 1209
Armstrong v. Dickson (1911) 1047, 1051
V. Eegem (1914) 220
Arnold, In re; Hext, ex parte (1914) ... 125
V. Jeffreys (1914) 1176
V. King-Emperor (1914) 219
V. Morgan (1911) 788, 1223
Arnott V. Fife Coal Co. (1911) 1979, 2014
V. (1912) 2020
Aronson v. Liverpool Corporation (1913) 1188
Arran (Earl) and Knowlsden, In re
(1912) 1400, 1680
Ash, In re; Hatt, ex parte (1913) 130
V. Invicta Manufacturing Co. (1911) 1602
Ashanti Development, Lira., In re (1911) 239
Ashburnham, In re; Gaby v. Ashburn-
ham (1912) 1797
Ashburton (Lord) v. Nocton (1915) 567
( ) V. Pape (1913) 687
Ashley v. Blakcr (1911) 1135
Ashover Fluorspar Mines, Lim. v.
Jackson (1911) 483
COL.
Ashton, Ex parte (1912) 805
Ashwell, In re; Salaman, ex parte (1912) 122
Associated Newspapers, Lim. v. London
Corporation (1913) 1267
Associated Portland Cement Manufac-
turers V. Ashton (1915) 1425
V. Cory & Son, Lim.
(1915) 1683
Astell V. Barrett (1911) 536
Aston V. Kelsey (1913) 1199
Atherton, In re (1912) 130
Atkins V. Agar (1913) 781
V. Atkins (1913) 648
V. Fulham Borough Council (1915) 1179
Atkinson, In re; Atkinson v. Atkinson
(1911) 1819
V. Jeffreys (1915) 1010
V. Morgan (1915) 1010
V. Shaw (1915) 1010
Atkinson's & Horsell's Contract, In re
(1912) 1677
Attenborough c. Solomon (1913) 576
Attkins, In re ; Life v. Attkins (1913)
553 983
Attlay V. Attlay (1912) 'l824
Att.-Gen., Ex parte (1913) 367
V. Birmingham, Tame, and Rea
District Drainage Board (1912)
37, 43, 689, 1717
V. Boden (1911) 1323
V. Bradford Corporation (1911) 1735
V. Caledonian Railway (1911) 1340
V. Derbyshire County Council
(1915) 627
V. Dorin (1912) 877
V. East Barnet Urban Council
(1911) 934
V. Exeter Corporation (1911) 1338
V. Foundling Hospital (1914) 159
V. Godstone Rural Council (1912) ... 1729
V. Great Central Railway (1912) ... 1224
V. Great Northern Railway (1915)
1224, 1759
V. Horner (No. 2) (1913) 562, 949
- V. Ilford Urban Council (1915) 546
V. Kerr (1914) 890, 90i
V. Leicester Corporation (1911) 545
V. Lewes Corporation (1911)
896, 1219, 1718
V. Lindsay-Hogg (1912) 1732
V. London Corporation (1913) 1332
V. McCarthy (1911) 1386
V. Meyrick (1915) 562, 1733
V. Milne (1914) 1332
V. North-Eastern Railway (1915)
1575, 1759
V. Parish (1913) 888
V. Peek (1913) 524, 1321
V. Pelly ; Avenon's Charity, In re
(1912) 176
V. Plymouth Fish-Guano and Oil
Co. (1912) 1079
- V. Price (1911) 173, 1380
V. Reynolds (1911) 222
V. Roe (1915) 1082, 1737
V. Rowley (1911) 889
V. Seccombe (1911) 1322
V. Sheffield Corporation (1912) 646
V. Shoreditch Borough Council
(No. 1) (1914) 898
V. (No. 2) (1915) ... 898
TABLE OF CASES.
COL.
Att.-Gen. v. Storey (1912) 509
V. Thomson (1913) 760
V. Thynne (1914) 133
V. Vitagraph Co. (1914) 180
u. Warren Smith (1912) 853
V. Watford Rural Council (1912) ... 1731
V. West Ham Corporation (1911)
873, 1218
Att.-Gen. for Alberta v. Att.-Gen. for
Canada (1914) 194
Att.-Gen. for Australia v. Adelaide
Steamship Co. (1914) 184
V. Colonial Sugar Eefin-
ing Co. (1914) 184
Att.-Gen. of British Columbia v. Att.-
Gen. of Dominion of Canada (1913) ... 192
Att.-Gen. for Canada v. Fedorenko (1911) 191
Att.-Gen. for Dominion of Canada v.
Standard Trust Co. of New York (1911) 259
Att.-Gen. for New South Wales v.
Williams (1915) 187
Att.-Gen. for Nigeria v. Holt & Co.
(1915) 1386
V. Maclver & Co. (1915) 1386
Att.-Gen. for Ontario v. Canadian
Niagara Power Co. (1912) 548
Att.-Gen. for Province of Ontario v.
Att.-Gen. for Dominion of Canada
(1912) 191
Att.-Gen. for Quebec v. Att.-Gen. for
Ontario (1911) 204
Attwood V. Chapman (1914) 493, 756
Auld V. Pearson (1914) 1745
Auster, Lim. v. London Motor Coach
Works (1914) 1033
Austin & Whiteley v. Bowley (1913) ... 54
Austin Friars Steamship Co. v. Spillers
& Bakers, Lim. (1915) 1471
Australian Widows Fund Life Assur-
ance Society v. National Mutual Life
Association of Australasia (1914) 697
Avenon's Charity, In re; Att.-Gen. v.
Pelly (1913) 166
Avery, In re; Pinsent v. Avery (1912) ... 1328
Avery, Lim. v. Charlesworth (1914) 1209
Ayers v. Hanson (1912) 840
Aynsley, In re; Kyrle v. Turner (1915) ... 1825
B. (a Solicitor), In re; Law Society, ex
parte (1911) 1550
Babcock & Wilcox v. Young (1911) 1996
Backhouse, In re; Salmon v. Backhouse
(1915) 1793
Badger, In re; Badger v. Badger (1915)
681, 1641
Bagley, In re (1911) 92, 565
V. Furness, Withy & Co. (1914) ... 2025
V. Maple (1911) 1549
Bagots Hutton & Co., In re (1915) 1613
Bailey v. Co-operative Wholesale Society
(1914) 705
Bailey & Son v. Holborn & Frascati,
Lim. (1914) 521
Bailey & Whites, Lim. v. House (1915) 1022
Baillie v. Oriental Telephone and Electric
Co. (191.5) 286
Bain v. Compstall Co-operative Society
(1911) 894
Bainbridge v. Chertsey Urban Council
(1915) 1080
COL.
Baird & Co. v. Ancient Order of Foresters
(1914) 1982
Baker, In re (1912) 1561
V. Ellison (1914) 154, 899
V. Ingall (1912) 1628
V. Landport and Mid-Somerset
Benefit Building Society (1912) 64
Baker Motion Photographic Co. v. Hulton
(1912) 367
Balfour v. Tillett (1913) 508
Ball V. Hunt (1912) 1899, 1979, 1993
Ballantyne & Co. v. Paton & Hendry
(1912) 1469
Ballinrobe and Claremorris Light Rail-
way and Kenny, Ex parte (1913) 844
Balmukand v. King-Emperor (1915) 220
Banfield v. Picard (1911) 1572
Banknock Coal Co. v. Lawrie (1912) ... 960
Bank of Australasia v. Clan Line
Steamers (1915) 1440
■ V. Sydney Municipal
Council (1915) 186
Bank of England v. London Corporation
(1915) 78
V. Slattery (1911) 1041
Bank fiir Handel und Industrie, In re
(1915) 20,1692
Bank of Montreal v. Stuart (1911) 666
Bank of Scotland v. Macleod (1914) ... 115
B.Morrison (1911) ... 81, 1214
Banks, In re; Weldon v. Banks (1912) 332
Bannerman's Trustees v. Bannerman
(1915) 1143
Barbeary v. Chugg (1915) 1895, 1920
Barbour ». M'Douall (1914) 833, 835
Barclay v. Harris (1915) 1552
Barharn v. Huntingfield (Lord) (1913) ... 505
Barhamdeo Prasad v. Tara Chand (1913) 675
Barker & Co., In re (1915) 129
Barker v. Arnold (1911) 799
V. Herbert (1911) 1081
V. Lewis & Peat (1913) 1178
Barnard v. Foster (1915) 1190, 1578
Barnard-Argue-Roth Stearns Oil and Gas
Co. V. Farquharson (1912) 205, 488
Barnes v. Fox (1914) 974
V. Lawson (1911) 1176
V. Nunnery Colliery Co. (1911) ... 1936
V. Wilson (1913) 353
Barnett v. Port of London Authority
(No. 1) (1913) 1995, 1999
V. (No. 2)
(1913) 2011
Barns v. St. Mary, Islington, Guardians
(1912) 1206
Barnsley British Co-operative Society v.
Worsborough Urban Council (1915) ... 1750
Baron Cigarette Machine Co., In re
(1912) 315
Barr v. Musselburgh Merchants Associa-
tion (1912) 495
Barratt, In re; Barratt v. Coates (1915) 1797
Barrett v. Barrett (1913) 645
Barron v. Potter (1914) 144, 249
V. Seaton Burn Coal Co.; East
Walbottle Coal Co., Ex parte (1913) ... 1955
Barry v. Minturn (1913) 990
Bartlett v. Inland Revenue Commis-
sioners (1914) 1299
613
— V. Parker (1912)
IV
TABLE OF CASES.
COL.
Barton , In re ; Holland v . Kerslev
(1912) ". 680
Harwell v. Newport Abercarn Black Vein
Steam Coal Co. (1915) 1017, 1018
Bass V. Bass (1914) 649
V. Hendon Urban Council (1912)
681, 961
Bastable v. North British Railway (1912) 1231
Batchelour v. Gee (1914) 907
Bateman, In re; Wallace v. Mawdsley
(1911) 1776
Bates V. Batey & Co. (1913) 1062
V. Gordon Hotels, Lim. (1913) ... 394
Bath V. Standard Land Co. (1911) 251
Bath's (Marquisy Settlement, In re;
Thynne v. Shaw Stewart (1914) 1329
Batt V. Metropolitan Water Board (1911) 1722
Battersby's Estate, In re (1911) ... 862, 1414
Battersea Borough Council v. County of
London Electric Supply Co. (1913) ... 548
Baxter, In re; Mailing v. Addison (1911) 31
Baylis v. London (Bishop) (1912) 1021
c. ( ) (1913) 528
Beadon v. Capital Syndicate (1912) 1167
Beal V. Horlock (1915) 1422
Beard v. Moira Colliery Co. (1914) 522, 1006
Beard & Co., In re; Trustee, ex parte
(1915) 1089
Beare v. Garrod (1915) 1913, 1975
Beauchamp's Trusts, In re; Cadge v.
Barker Hahlo (1914) 1391
Beaufort (Duke) v. Inland Eeyenue Com-
missioners (1913) 1317
Beaumont, In re; Bradshaw v. Packer
(1913) 1820
Beavan, In re; Davies, Banks & Co. v
Beayan (1912) 941, 1550
, In re; v.
(1913) 573
Bebb V. Law Society (1913) 1546
Bechstein , In re ; Berridge v . Bechstein
(No. 1) (1914) 15
, In re; v. (No. 2) (1914) 328
Becker v. Earl's Court, Lim. (1912) 40, 1079
V. Riebold (1913) 515
Becker, Gray & Co. v. London Assurance
Corporation (1915) 1534
Bedeburn, The (1914) 1474
Bedford v. Leeds Corporation (1913) ... 1079
Bedford (Duke) v. London County Coun-
cil (1911) 1337
Beecham, Ex parte (1913) 1749
" Beechgrove " Steamship Co. v.
Aktieselskabet "Fjord" (1915) 1491
Beer, In re; Brewer v. Bowman (1915) 316
Beesley, In re (1914) 89
V. Midland Railway (1914) 1240
Beeston Foundry Co. v. Midland Railway
(1911) 1237
Beeton & Co., In re (1913) 310
Behrend's Trust, In re; Surman v.
Bidden (1911) 103
Beirne r. Duffy (1914) 767
Beldam's Patent, In re (1911) 1107
Belgia, The (1915) 1698
Bell, In re; Wright v. Scrivener (1914) 1787
V. Butterly (1911) 579
V. Girdlestone (1913) 1568
V. Great Crosby Urban Council
(1912) 881
V. Park (1914) 1822
COL
Belsize Motor Supply Co. r. Cox (1914) 1353
Belton, In re (1913)' 97
Bendle v. United Kingdom Alliance
(1915) 493
Bennett, In re; Greenwood v. Bennett
(1913) 942
Bennett Steamship Co. v. Hull Mutual
Steamship Protecting Society (1914) ... 1530
Bennett v. Houldsworth (1911) 1816
V. National Amalgamated Society
of Operatiye House and Shop Painters
and Decorators (1915) 1627
V. Stepney Corporation (1912) 1219
Bentley, In re ; Podmore v. Smith (1914) 1785
, ■ ; Public Trustee v.
Bentley (1914) 1659
Benz & Co.'s Application, In re
(1913) 1609
Benzon, In re ; Bower v. Chetwynd (1914)
103, 856
Beresford v. White (1914) 565
Beresford's Settlement, In re; Iryine v.
Beresford (1914) 1140
Berlin, The (1914) 1694, 1699
Berna Commercial Motors, Lim., In re
(1915) 1607
Berry v. Farrow (1913) 1297
V. Humm & Co. (1915) 1074
Berry & Co. v. Star Brush Co. (1915) ... 1347
Berryman, In re; Berryman v. Berry-
man (1913) 1780
Berthoud v. Schweder & Co. (1915) ... 1578
Besant v. Narayaniah (1914) 671,673
Bessemer v. Gould (1912) 920
Best & Best, In re (1915) 1561
Besterman v. British Motor Cab Co.
(1914) 375
Betts V. Steyens (1911) 1126
Bey an v. Energlyn Colliery Co. (1911) 1994
- — V. Shears (1911) 1375
Bewick, In re; Ryle v. Ryle (1911) 1115
Beyfus v. Westminster City Council
(1914) 986
Bhagabati Barmanya v. Kali Charan
Singh (1911) 676
Bibby & Baron v. Strachan (1911) 1103
Bickley v. Browning, Todd & Co. (1913) 1195
Bien, The (1911) 1519
Biggs, Atkinson & Ryan's Contract, In
re (1913) 1667
Biggs V. Eyans (1912) 392
Bijraj Nopani v. Pura Sundary Dassee
(1914) 576
Bilbster, The (1915) 1706
Billericay Rural Council v. Poplar Guar-
dians (1911) 1752
Birchal v. Crisp & Co. (1913) 503
Bird V. Samuel (1914) 1087
Birkbeck Building Society v. Birkbeck
(1913) 151
Birkbeck Permanent Benefit Building
Society, In re (1914) 151
, In re (No. 2)
(1915) 152
V. Licensees'
Insurance Corporation and Guarantee
Fund, Lim. (1913) 723
Birks V. Stafford Coal and Iron Co.
(1913) 1981
Birmingham City Tramways Co v. Law
(1911) 1631
TABLE OF CASES.
COL.
Birmingham Corporation v. Midland
Eailway (1911) 1247, 1252
Birmingham and Midland Motor Omni-
bus Co. V. London and North-Western
Railway (1913) 509
Biscoe, In re; Biscoe v. Biscoe (1915) ... 1408
Bishop, In the goods of (1913) 1771
Bitinia, The (1913) 1508
Blackburn Philanthropic Assurance Co.,
In re (1914) 230, 600
Blacker v. Lake & Elliott (1912) 1061
Blackett v. Ridout (1915) 225, 862
Blackledge v. Blackledge (1912) 659, 662
Blacklock & Co. v. Pearsons, Lim. (1915) 362
Blackwell v. Derby Corporation (1911) ... 51
Bladon, In re; Dando v. Porter (1911) ... 761
Blair v. Holcombe (1912) 1027
V. Johnstone (1914) 1029
Blair & Co. v. Chilton (1915) 1929
Blair Open Hearth Furnace Co., In re
(1914) 237
(1913) 245, 287
Blake v. Blake (1913) 1405
V. Head (1912) 1891, 1902
Blaker v. Hawes (1913) 1198
Blakey v. Harrison (1915) 769
V. Robson, Eckford & Co. (1912) ... 1914
Bland v. Yates (1914) 1079
Blow, In re; St. Bartholomew's Hospital
V. Cambden (1914) 571, 854
Blow Boat, The (1912) 1481, 1488
Boaler, In re (1914) 434, 1168
Boam, In re; Shorthouse v. Annibal
(1911) 1810
Board of Education v. Rice (1911) 1382
Board of Trade v. Anglo-American Oil
Co. (1911) 1423
V. Employers' Liability
Assurance Corporation (1911) 120
V. Roberts (1915) 956
Bobbey v. Crosbie & Co. (1915) ... 1954, 1970
Boddington, In re; Salaman, ex parte
(1915) 144
Bodega Co. v. Martin (1915) 751
V. Read (1914) 751
Bodman v. Bodman (1913) 630
Boehm v. Goodall (1911) 1175
Bolam V. Allgood (1913) 530
Bolton V. Everett (1911) 883
Bolton Corporation v. Scott (1913) 930
Bombay Burmah Trading Corporation v.
Aga Mahomed Khaleel Shirazee (1912) 1347
Bombay Cotton Manufacturing Co. v.
Matilal Shivlal (1915) 35
Bonacina, In re; Le Brasseur v. Bona-
cina (1912) 100
Bond, In re; Capital and Counties Bank,
ex parte (1912) 90
Bonnefoi, In re; Surrey v. Perrin (1913) 1168
Bonnett & Fowler, In re (1913) 836
Bonner v. Basset Mines (1913) 1291
Bonney v. Hoyle & Sons, Lim. (1914)
1970, 1983, 1990, 2012
Bonvilston, The (1914) 1424
Booth V. Helliwell (1914) 912
Borland v. Watson, Gow & Co. (1912) ... 1945
Bothamley v. Jolly (1915) 902
Bosanquet, In re; Unwin v. Petre (1915) 1814
Bottcmley, Ex parte (1911) 794
, In re ; Brougham, ex parte (1915)... 129
V. Bell (1915) 123
CGI,.
Bottomley v. Director of Public Prosecu-
tions (1914) 614
Boulcott's Settlement, In re; Wood v.
Boulcott (1911) 29
Boulton V. Hunt (1913) 616
Bourne v. Bourne (1913) 640, 641
Bowden v. Amalgamated Pictorials, Lim.
(1911) 367
Bowen, Ex parte (1911) 399
Bower v. Caistor Rural Council (1911) ... 897
V. Chapel-en-le-Frith Rural Council
(1911) 926, 1886
Bowles V. Att.-Gen. (1911) 1298
V. Bank of England (No. 1) (1912) 1294
V. (No. 2) (1912) ... 1294
Bowman, In re; Secular Society v. Bow-
man (1915) 169
Bowron, In the estate of (1914) 1772
Boyd & Forrest v. Glasgow and South-
western Railway (1914) 1887
Boyle V. Ferguson (1911) 975
Bracchi v. Rees (1915) 607
Braddell v. Baker (1911) 1337
Bradley v. Wallaces (1913) 22, 2031
Bradley & Cohn v. Ramsay (1912) 1352
Bradley and Essex and Suffolk Accident
Indemnity Society, In re (1912) 715
Bradshaw v. McMullen (1915) 1169
V. Waterlow & Sons, Lim. (1915) ... 946
Braintree Union v. Rochford Union
(1911) 1133, 1134
Brake v. Inland Revenue Commissioners
(1915) 1316
Brame v. Commercial Gas Co. (1914) ... 621
Brammall v. Mutual Industrial Corpora-
tion (1915) 69, 1184
Brandon Hill, Lim. v. Lane (1914) 148, 558
Brandy v. "Raphael " Steamship (1911) 1946
Branson, In re ; Moore, ex parte ; Trustee
V. Branson (1914) 105, 118
, In re; Trustee, ex parte (1914) ... 120
Braunstein & Marjalaine, Lim., In re;
Philipson v. The Company (1914) 276
Bravo, The (1912) 1488
Brazier Creagh's Trusts, In re; Holmes
V. Langley (1913) 1143
Brazilian Rubber Plantations and
Estates, In re (No. 1) (1911) 254
, In re (No. 2) (1911) 40
Brenes & Co. v. Downie (1914) 252
Brentano, In the goods of (1911) 1774
Briggs, In re; Richardson v. Bantoft
(1914) 1329
V. Mitchell (1911) 1951
Brinsmead v. Brinsmead (No. 1) (1913) 1604
V. (No. 2) a913) 1181
Brinson v. Davies (1911) 1194
Bristol Corporation v. Aird (1913) 50
Bristol Guardians v. Bristol Waterworks
Co. (1914) 1724
Bristow r. Piper (1914) 769
British Association of Glass Bottle
Manufacturers v. Nettlefold (1912) 230,501
British Berna Motor Lorries, Lim. v.
Inter-Transport Co. (1915) 1023
British Chartered Co. of South Africa v.
Lennon, Lim. (1915) 1062
British Columbia Electric Railwav v.
Gentile (1914) "202, 1074
V. Stewart (1913)
202, 1573
Tl
TABLE OF CASES.
500
1103
British Columbia Electric Railway v.
Vancouver, Victoria and Eastern Rail-
way (1914) 198
British Drug Houses' Trade Mark, In re
(1913) 1617
British Dominions General Insurance Co.
V. Duder (1914) 1527
British Economic Lamp Co. v. Mile End
Empire (1913)
British, Foreign and Colonial Automatic
Light Controlling Co. v. Metropolitan
Gas Meters, Lim. (1912)
British Glanzstoff Manufacturing Co. v.
General Accident, Fire and Life Assur-
ance Corporation (1912) 1882
British Guiana Bank v. British Guiana
Ice Co. (1911) 85
British Legal and United Provident
Assurance Co. C.Sheffield (Baron) (1911) 1171
British and Mexican Shipping Co. v.
Lockett (1912) 14.51,1456
British Milk Products Co.'s Application,
In re (1915) 1611
British Murac Syndicate v. Alperton
Rubber Co. (1915) 234, 244
British Oil and Cake Mills v. Port of
London Authority (1915) 1513
British Portland Cement Manufacturers,
Lim. V. Great Eastern Railway (1914) 1237
British Red Cross Balkan Fund, In re;
British Red Cross Society v. Johnson
(1914) 162, 1639
British Thomson-Houston Co. v. Duram,
Lim. (1914) 1102
British Union and National Insurance
Co., In re (1914) 734
British Westinghouse Electric and Manu-
facturing Co. V. Electrical Co. (1911) 1101
V. Under-
ground Electric Railways (1911) 481
• V. Under-
ground Electric Railways (1912) ... 86, 38
Broad, In re; Official Receiver, ex parte
(1911) 573
V. Meyer (1912) 364
Broadwood, In re; Edwards v. Broad-
wood (1912) 1571
, In re; Lyall v. Broadwood (1911) 1819
Brock & Co. V. Pain (1912) 1605
Brocklebank v. Brocklebank (1911) 657
Bromsgrove, The (1913) 1506, 1507
Brook, In re ; Brook v. Hirst (1914) 323
Brooke v. Brooke (No. 1) (1912) 642
V. (No. 2) (1912) 643
Brookes, In re; Brookes v. Taylor (1914) 1651
Brooking Phillips v. Brooking Phillips
(1913) 637
Brookman v. Mather (1913) 610
Brooks V. Billingham (1912) 333
Brougham v. Dwyer (1913) 151
Broughton v. Knight (1915) 1765
Brown v. Burt (1912) 1278
V. Brown (1915) 654
V. Croseley (1911) 1747
V. Kent, Lim. (1913) 1898
V. Lambeth Borough Council (1915) 1064
V. Mackenzie (1913) 856
V. Turner, Brightman & Co. (1912) 1431
V. Watson, Lim. (1914) 1894, 1907
Brown & Co., In re (1914) 232
Browne v. Barber (1913) 1568
V. Black (1911) 1567
COL.
Browne v. Black (1912) 1142,1599
— ^ V. Browne (1912) 1821
V. Flower (1911) 522, 823
V. Thomson & Co. (1912) 491
Browne's Will Trusts, In re; Landon v.
Brown (1915) 1831
Browning v. Browning (1911) 641
Bruce v. McManus (1915) 178
Bruen's Estate, In re (1911) 1392
Brunner, Mond & Co. v. Cheshire Lines
Committee (1911) 1241
Brunton v. Commissioner of Stamp
Duties for N. S. Whales (1913) 180
Bryant v. Bryant (1914) 661
Buchanan, In re; Stephens v. Draper
(1915) 29
Buchan v. Ayre (1915) 378
Buckingham, In re; Howell, In re;
Liggins V. Buckingham (1915) 1787
Buckley v. Buckley (1912) 637
V. National Electric Theatres, Lim.
(1913) 386
Bull V. Lord (1911) 903
Bullock V. Bullock (1911) 644
Bullock's Will Trusts, In re; Bullock v.
Bullock (1915) 1120
Buls D. " Teutonic " (Owners) (1913) ... 1969
Bunt V. Kent (1913) 1376
Bur Singh v. Uttam Singh (1911) 1764
Burchell v. Gowrie and Blockhouse
Collieries (1911) 1194
Burden v. Rigler (1911) 1739
Burdett v. Home (1911) 669
Burge, W^oodall & Co., In re; Skyrme,
ex parte (1912) 104, 1201
Burgess v. 0. H. N. Gases, Lim. (1914) 1034
Burgess's Policy, In re; Lee v. Scottish
Union and National Insurance Co.
(1915) 666, 693
Burgess's Trustees v. Crawford (1912) ... 174
Burghes v. Att.-Gen. (1911) 1181
V. — (1912) 1302
Burke, In re; Wood v. Taylor (1914) ... 1803
Burkitt, In re; Hancock v. Studdert
(1915) 1814
Burman v. "Zodiac" Steam Fishing
Co. (1914) 1949
Burmester v. Burmester (1913) 650
Burnett v. Samuel (1913) 1087
Burnham v. Hardy (1915) 708, 1970
Burnock, The (1914) 1476
Burns v. North British Railway (1914) 1054
V. Summerlee Iron Co. (1913) 1934
Burrard Power Co. v. Regem (1911) 199
Burrell v. Burrell's Trustees (1915) 1643
t,. Green & Co. (1915) 1461
Burrows v. Thomas (1912) 1259
Burton, In re ; Tongue, In re ; Higginson
V. Burton (1915) 532
Burwash v. Leyland & Co. (1912) 1915
Bush V. Rogers (1915) 373, 375, 378
Butchers' Hide, Skin and Wool Co. v.
Seacome (1913) 901
Butland V. Butland (1913) 636
Butler V. Burton-on-Trent Union (1912) 1912
V. Fife Coal Co. (1912) 962, 1007
Butler's Will, In re; Metropolitan Board
of Works, ex parte (1912) 844
Byrne v. "Statist" Co. (1914) 352
Bythway, In re; Gough v. Dames (1911) 575
TABLE OF CASES.
COL.
C, V. C. (1911) 652
C. (a Solicitor), In re; Law Society, ex
parte (1911) 1553
Cabab6 v. Walton-upon-Thames Urban
Council (1914) 1730
, In re; Cababe v. Cababe (1914) ... 3
Cadbury, In re (No. 1) (1914) 1611, 1615
, In re (No. 2) (1914) 1611
Cadenhead v. Ailsa Shipbuilding Co.
(1911) 1948
Cadogan Settled Estates, In re; Eich-
mond and Gordon (Duke) v. Cadogan
(1915) 1410
Cadogan's (Earl) Settlements, In re;
Richmond v. Lambton (1911) 1153
Cairnbahn, The (No. 1) (1913) ... 1482, 1486
, (No. 2) (1913) 1483, 1487
Cairns v. Walker, Lim. (1914) 478
Caithness (Earl) v. Sinclair (1912) 322
Caldbeck v. Caldbeck (1911) 1781
Caldwell v. Bethell (1912) 774
V. Hague (1915) 1745
V. Leech (191.3) 433
Caldwell & Co. v. Caldwell (1915) 243
Caledon (Earl), In re; Alexander v.
Caledon (191.5) 1789
Caledonian Railway v. Glenboig Union
Fireclay Co. (1911) 1004
V. Heriot's Trust (Governors)
(1915) 1385
■;;. Lanarkshire Coalmasters'
Association (1911) 1248
Calico Printers' Association v. Booth
(1913) 2026
V. Higham (1911) 2026, 2027
Caliph, The (1912) 1508
Callaway v. Regem (1913) 778
Calne Union v. Wilts County Council
(1911) 1137
Calyx, The (1911) 1472
Cambric, The (1912) 1508
Cambridgeshire County Council v. Pepper
(1912) 1751
Cameron v. Cuddy (1914) 49
Cameron's Trustees v. Mackenzie (1915) 164
Campania, The (1914) 1490
Campbell, In re; Seal, ex parte (1911) 1025
V. Kerr (1912) 619
V. Paddington Borough Council
(1911) 1082, 1737
Campbell's Trustees v. Sweeney (1912) ... 1712
Canadian Northern Railway v. Robinson
(1911) 195
Canadian Pacific Railway v. British
American Oil Co. (1914) 196, 197
— V. Canadian Oil Com-
panies (1914) 196, 197
V. Fr&hette (1915) 207, 961
V. McDonald (1915) 207
V. Toronto City (1912)
197, 219
V. Toronto Corporation
(1911) 197,219
Cannell v. Lawther, Latta & Co. (1914)
1424, 1492
Cannon, In re; Cannon v. Cannon (1915) 32
V. Jefford (1915) 1742
Cantiere Meccanico Brindisino v. Con-
stant (1913) 1347,1863
V. Janson (1912) 1538
Cap Blanco, The (1913) 47,52,1521
Cape Corse, The (1915) 1704
COL.
Capel, In re; Arbuthnot v. Capel (1915) 1800
Capel & Co. V. Souledi (1915) 1429
Cardiff Corporation v. Hall (1911) 2016
Cardwell, In re; Att.-Gen. v. Day (1912) 475
Carew's Trusts, In re; Gellibrand v.
Carew (1911) 324
Caribonum Co. v. Le Couch (1913) 347
Carill-Worsley, In re; Trustee, ex parte
(1915) 129
Carlberg v. Wemyss Coal Co. (1915)
1442, 1462
Carleton, In the goods of (1915) 1765
Carlin v. Stephen (1911) 2015
Carlisle and Cumberland Banking Co. v.
Bragg (1911) 559, 1211
Carlisle and Silloth Golf Club v. Smith
(1913) 1281
Carlisle (Earl) v. Northumberland County
Council (1911) 899
Carl Lindstroem Aktiengesellschaft's
Application, In re (1914) 1608
Carlton v. Sinclair, Lim. (1914) 1922
Carlton Illustrators v. Coleman (1911) ... 366
Carolan v. Harrington (1911) 1982
Carr v. Carr (1912) 561
Carruthers (;. Peake (1911) 597
Carshalton Urban Council v. Burrage
(1911) 1737
Carson v. Carson (1915) 1588
Carter v. Apfel (1912) 380
V. Hungerford (1915) 1168, 1169
V. United Society of Boiler Makers
(1915) 1627
Cartland v. British and South American
Steam Navigation Co. (1912) 504
Cartwright v. Hoogstoel (1911) 1571
V. Russell (1912) 831
Carver & Sassoon, In re (1912) 1360
Casey v. Humphries (1913) 1928
Cassell V. Jones (1913) 922
Cassils & Co. V. Holden Wood Bleaching
Co. (1915) 8.51
Castello V. London General Omnibus Co.
(1912) 288
Catchpole v. Minster (1914) 24, 1066
Cathcart (Earl), In re (1912) 1789
V. Chalmers (1911) 833
Caton, In re; Vincent v. Vatcher (1911) 1547
Cattell, In re ; Cattell v. Cattell {or Dodd)
(1914) 4
Cavan County Council v. Kane (1913) ... 1739
Cave V. Horsell (1912) 828
Cavendish v. Cavendish (1913) 650
Cavendish and Arnold's Contract, In re
(1912) 576
Cavendish Settlement, In re; Grosvenor
V. Butler (No. 1) (1912) 1412
, In re; v. (No. 2)
(1912) 1410
Cedar Rapids Manufacturing Co. v.
Lacoste (1914) 192
Central Argentine Railway v. Marwood
(1915) 1458
Centrifugal Butter Co., In re (1913) 317
Century Bank of New York v. Young
(1915) 727
Challis V. Watson (1913) 387
Chance & Hunt v. Great Western Rail-
way (1915) 1253, 1254, 1255
VUl
TABLE OF CASES.
COL.
Chandler v. Great Western Kailway
(1912) 1894
Channel Collieries Trust, Lim. v. St.
Margaret's, Dover, and Martin Mill
Light Railway (1914) 246
Chantrey v. Dav (1912) 361
Chaplin v. Barnett (1912) 1175
V. Hicks (1911) 480
Chaplin, Milne, Grenfell & Co., In re
(No. 1) (1915) 1655
, In re (No. 2) (1915) 1040
Chapman v. Sage & Co. (1915) 2002
V. Westerby (1914) 335
Chappel & Co. v. Columbia Graphophone
Co. (1914) 363
Chappell V. Harrison (1911) 511
Charing Cross, \Yest End, and City Elec-
tric Supply Co. V. London Hydraulic
Power Co. (1914) .'.. 1080, 1573
Charlesworth, In re; Tew v. Briggs
(1911) 1327
Charleton, In re; Bracey v. Sherwin
(1911) 321
Charlton & Bagshaw v. Law & Co. (1913) 1443
Charrington & Co. c. Wooder (1914) 776
Chatterton v. City of London Brewery
Co. (1915) 125
V. Glanford Brigg Rural Council
(1915) 926
V. Parker (1914) 1754
Cherry, In re; Robinson v. Weslevan
Methodist Chapel Trustees (1913) .'.... 1658
Chertsey Union v. Metropolitan Water
Board (1915) 1263, 1720
Chesham Automobile Supply v. Beresford
Hotel (1913) 691
Cheshire Lines Committee v. Heaton
Norris Urban Council (1912) 881
Chester, In re; Servant v. Hills (1914) ... 1784
Chesterfield's (Lord) Settled Estates, In
re (1911) 594
Chesterton v. Gardom (1911) 538
Chetwynd's Trustees v. Boltons Library
(1913) ...\ 90
Cheverton v. Oceanic Steam Navigation
Co. (1913) 2012
Child V. Osment (1914) 1776
Chile, The (1914) 1696, 1698
Chisholra v. Grant (1914) 492
Chivers v. Hand (1914) 1581
Christie v. Leven (Magistrates) (1912) ... 149
Christineville Rubber Estates, In re
(1911) 236
Chrystal's Trustee v. Chrvstal (1912)
665, 1043
Chunilal Parvatishankar v. Bai Samrath
(1914) 1793
Church of England Curates' Employ-
ment, In re (1913) 700
Churner v. Churner (1912) 642
Chute's Estate, In re (1914) 1044
V. Freeth & Pocock (1911) 911
Chuter v. Ford & Sons, Lim. (1915) 1940
Ciampa v. British India Steam Naviga-
tion Co. (1915) 1445
City of Dublin Steam Packet Co. v.
O'Brien (1913) 1293
City of Glasgow Life Assurance Co., In
re; Clare's Policy (1915) 698
City of Liverpool. The (1913) 1504
Civil Service Co-operative Society v.
Chapman (1914) 303
COL
Clandown Colliery Co., In re (1915) 306
Clan Grant, The (1915) 1708
Clanricarde (Marquess) v. Congested Dis-
tricts Board for Ireland (1915) 842
Clapp V. Carter (1914) 1960
Clare v. Dobson (1911) 822
Clare & Co. c. Dresdner Bank (1915) ... 78
Clare County Council v. Wilson (1913) ... 1165
Clarissa Radcliffe, The (1914) 1517
Clark, In re; Pope, ex parte (1914) 87
V. North British Railway (1912) ... 1056
Clarke v. Brovendra Chowdhry (1912) ... 676
V. Clarke (1911) 648
V. (1913) 647
V. West Ham Corporation (1914) ... 392
Clarke & Co., In re (1911) 244, 287
. In re (1912) 288
Clarke, Nicholls & Coombs v. Ejiox (1913) 2019
Clarke's Settlement, In re (1911) 1564
Clarkson, In re; Public Trustee v. Clark-
son (1915) 1816
V. Wishart (1913) 205
Clayton v. Hardwick Colliery Co. (1915) 1904
V. Le Rot (1911) 950, 1637
Clayton & Shuttle worth v. Great Central
Railway (1912) 1254
Cleary v. Brazil Railway (1915) 1169
V. London and North- Western Rail-
way (1915) 1075
Clegg V. Metcalfe (1914) 531
Cleland v. Cleland (1913) 644
Clemens Horst & Co. v. Biddell (1912) ... 1349
Clements v. Conrov (1911) 1666
Clerke, In re: Clowes v. Clerke (1915) ... 1806
25. St. Helen's Corporation (1915) ... 1217
Clifford, In re; Mallam v. McFie (1911)
171, 1115, 1823, 1824
V. Battlev (1915) 909
V. King Emperor (1914) 220, 673
Clinton v. Lvons (1912) 22, 1074
Cloutte r. Storey (1911) 320, 1150, 1186
Clunies-Ross, In re: Stubbings v.
Clunies-Ross (1912) 1795
Clutterbuck v. Clutterbuck (1913) 638
V. (1915) 645
Clyde Navigation Trustees r. Wilhelm-
sen (1915) 1502
Clydebank and District Water Trustees
V. Fidelity and Deposit Co. of Mary-
land (1915) 724
Clydesdale Bank v. Schroder (1912) 1022
Coaker v. Willcocks (1911) 27, 223, 515
Coaks, In re ; Coaks v. Bayley (1911) 579, 1589
Coal Merchants' Society v. Midland Rail-
way (1911) 1240
Coaster, Lim., In re (1911) 300
Coats, Lim. v. Disconto Gesellschaft
(1915) 1031
Cobb V. Saxby (1914) 1739
Cockburn v. Newbridge Sanitary Steam
Laundry Co. (1915) 253, 304
Cockrell's Estate, In re; Pinkey v.
Cockrell (1911) 1565, 1566
Codling V. Mowlem & Co. (No. 1) (1914) 20U8
Coffee V. McEvov (1912) 840
Cohen, In re: Brookes v. Cohen (1911) 1150
V. Arthur (1912) 54
Cointat v. Mvham (1913) 479
V. ^' (1914) 1358
Coker v. Bolton (1912) 1536,1542
Colbeck V. Whitwham (1912) 1009
TABLE OF CASES.
COL.
Colchester Brewery Co. v. Essex Licen-
sing Justices (1915) 757
Colchester Corporation v. Gepp (No. 1)
(1912) 1752
V. (No. 2) (1912) 1752
Cole V. Booker (1913) 156
V. Harrop (1915) 1742
Coleman v. Smith (1911) 1616
V. — — ; " Carvino " Trade Mark,
In re (1911) 1616
Colgate & Co.'s Trade Mark, In re (1913) 1608
Colley's Patents, Lim. v. Metropolitan
Water Board (1912) 1723
Collins, In re (1915) 105
V. Barrowfield United Oddfellows
(1915) 602
Collis Estate, In re (1911) 1399
Collman v. Stokes (1911) 1335
Colonial Gold Reefs, Lim. v. Free State
Rand, Lim. (1913) 284
Coltman v. Morrison & Mason, Lim.
(1914) 1957
Colquhoun v. Woolfe (1912) 1948
Colquhoun's Trustees v. Abercromby
(1913) 1325
Colvile, In re; Colvile v. Martin (1911) ... 1779
Commercial Cable Co. v. Att.-Gen. of
Newfoundland (1912) 214
Commissioners of Stamp Duties v. Broken
Hill South Extended, Lim. (1912) 188, 1338
V. Byrnes (1911) 186
Commissioners of Taxation of New South
Wales V. Adams (1912) 187
Commissioners of Taxes v. Melbouime
Trust (1914) 1283
Compania Sansinena v. Houlder (1911) ... 1155
Company, In re (1915) 20
Company (0,022 of 1915), In re ; Company
(0,023 of 1915), In re (1915) 1191
Compton, In re ; Vaughan v. Smith (1914) 1820
Condrin, In re ; Colohan v. Condrin (1914) 669
Congregation of Jews v. Inland Revenue
(1915) 1306
Conlan v. Carlow County Council (1912) 62
Conlin v. Patterson (1915) 439
Connell's Settlement, In re; Benett's
Will Trusts, In re; Fair v. Connell
(1915) 1640
Connolly. In re; Walton r. Connolly
(1914) 168, 1801
Connolly Brothers, Lim., In re; Wood v.
Connolly Brothers, Lim. (1911)
261, 1169, 1175
Consolidated Diesel Engine Manufac-
turers, In re (1914) 312
Consolidated Goldfields of South Africa
V. Simmer and Jack East, Lim. (1913) 281
Consolidated London Properties, Lim. v.
St. Marylebone Assessment Committee
(1913) 1257
Consolidated Nickel Mines, Lim., In re
(1914) 255
Continental Tyre and Rubber Co. v.
Daimler Co. '(1915) 10, 13
V. Heath (1913) ... 343
V. Tilling. Lim.
(1915) 10, 13
Conway v. Pumpherstoii Oil Co. (1911) ... 1933
Coode, In re; Coode v. Foster (1913) ... 1641
Cooden Beach Estate, In re (1912) 1404
Cook V. Hobbs (1911) 1334
V. " Montreal " (Owners) (1913) ... 1917
COL.
Cook V. Stockwell (1915) 772
V. Trevener (1911) 606
V. Vancouver City (1914) 202
Cooke V. Bolton Justices (1912) 764
V. Cooper (1912) 764
V. London County Council (1911) ... 841
V. Rickman (1911) 544
V. Wilson (1915) 154
Cooke's Settlements, In re; Tarry v.
Cooke (1913) 1645
Coomber, In re (1911) 623
Coomes v. Hayward (1913) 1175
Cooney v. Wilson (1913) 1165
Cooper, In re; Curtis v. Beaney (1911)
508, 1775
, In re; Cooper v. Cooper (1913) ... 682
, In re; Debtor, ex parte (1911) .... 93
V. Cook's Depositories (1914) 1222
V. Micklefjeld Coal and Lime Co.
(1912) 63
V. N.E. Railway (191-5) 1903
V. Swift (1914) 1221
V. Wales, Lim. (1915) 1972
Cooper's Estate, In re (1911) 1295
Cope V. Bennett (1911) 1774
V. Sharpe (1912) 1635
Cope & Sons, Lim., In re; Marshall v.
The Company (1914) 262
Copestake v. West Sussex County Council
(1911) 1732
Corbin v. Stewart (1911) 979
Corcoran v. O'lvane (1913) 1788
Corea v. Appuhamy (1912) 209
Corelli v. Gray (1913) 362
Corfield v. Buchanan (1913) 734
Corinthe v. St. Sulpice Montreal Semi-
nary (1912) 208
Corke t). Rainger (1911) 526
Cornell v. Harrison (1915) 679
V. May (1915) 145
Corrie v. MacDermott (1914) 846
Corsican Prince, The (191.5) 1711
Cory, In re; Kinnaird v. Cory (1912) ... 623
V. France, Fenwick & Co. (1911) ... 2030
V. Hughes (1911) 2018
V. Reindeer Steamship, Lim. (1915) 287
Cosford Guardians v. Poor Law Guaran-
tee Association (1911) 869, 1129
Costello V. Kelsall (1913) 1948
Cotter, In re; Jennings v. Nye (1915) ... 1640
Cotton, In re; Cooke, ex parte (1913) ... 108
V. Regem (1913) 198
Cotton's Trustees v. Inland Revenue
(1913) 1300
Coulson V. South Moor Colliery Co.
(1915) 1966
Counsellor, The (1913) 1496
Couper V. Balfour of Burleigh (Lord)
(1913) 497
V. ( ) (1914) 498
Coverdale v. Coverdale (1913) 645
Coward & Co., In re (1914) 1041
Cowden v. McEvoy (1914) 971
Cowern v. Nield (1912) 678
t,. (1914) 395
Cowley (Countess) r. Cowley (Earl)
(1913) ■ 653
Cox V. Bowen (1911) 748
V. Coulson (1915) 1597
V. Dublin City Distillery (1915) .... 268
Cozen, In re; Green v. Brisley (1913) ... 1638
TABLE OF CASES.
COL.
Crabtree, In re; Thomas v. Crabtree
(1912) 1594
V. Commercial Mills Spinning Co.
(1911) 966
Craig V. " Calabria " (Owners) (1914) ... 1920
V. Eoyal Insurance Co. (1915) 2004
Craig (Kilmarnock), Lim. v. Inland
Revenue (1914) 1286
Craighill, The (1911) 1509
Crane v. Xaughten (1912) 70, 332
V. South Suburban Gas Co. (1915) 1067
V. Wallasey Corporation (1912) 880
Cranston v. Mallow & Lien (1912) 1356
Craven, In re; Watson v. Craven (1913)
1645, 1834
Crawford v. Allan Line Steamship Co.
(1912) 1469
V. White City Rink (1913) 828
Crawford (Earl) v. Paton (1911) 1196
Creaser v. Hurley (1915) 46
Credito Italiano v. Swiss Bank-Verein
(1915) 1032
Creed v. Creed (1913) 6
Cresswell, In re; Linehain v. Cresswell
(1914) 2
V. Jeffreys (1912) 513
V. Jones (1912) 390
Crichton's Settlements, In re; Sweetman
V. Batty (1912) 1115, 1144
Crighton v. Law, Car, and General In-
surance Corporation (1911) 55
Crippen, In the goods of (1911) 456, 562, 1770
Crittall Manufacturing Co. v. Loudon
County Council (1911) 1879
Crompton & Co., In re; Player v. Cromp-
ton & Co. (1914) 276
Cronin, In re (1914) 859
V. Connor (1913) 223
Crook's Trade Mark, In re (1914) 1614
Crookston v. Inland Revenue (1912) 1276
Cropley, In re; Fox, ex parte (1911) ... 123
Crosfield v. Techno-Cheniical Labora-
tories (1913) 1099
Cross 0. Rix (1912) 389, 1219
Cross's Trusts, In re; Cross v. Cross
(1915) 552
Crother's Trusts, In re (1915) 1796
Crouch V. Crouch (1912) 663
Crow V. Hilleary (1913) 540, 544
Croydon, In re; Hincks v. Roberts (1911) 854
Croydon Rural Council v. Betts (1914) ... 925
Croxon, In re; Ferrers v. Croxon (1915) 31
Cruden v. Wemyss Coal Co. (1913) 1979
Crumpe, In re; Orpen v. Moriarty (1912) 323
Crumplin v. London Joint Stock Bank
(1913) 142
Crutchley, In re ; Kidson v. Marsden
(1912) 1778
Crystal Palace Co., In re; Fox v. The
Company (1911) 281
Cue V. Port of London Authority (1914) 1995
Cuff V. London and County Land Build-
ing Co. (1912) 255
Cumberland, The (1915) 1710
Cummings v. Stewart (1911) 1106
V. (1913) 1107
Cundiff V. Fitzsimmons (1911) 1043
Cunningham, In re (1915) 683
-, In re; Dulcken v. Cunningham
(1914) 171
Curates Employment in the Church of
England, In re (1912) 700
COL.
Curran, The (1911) 1504
Curtis V. B. U. R. T. Co. (1912) ... 311, 332
Curzon, In re; Martin v. Perry (1912) ... 1790
, In re; Trustee, ex parte (1915) ... 118
Customs and Excise Commissioners v.
Curtis (1914) 754
Cutsford V. Johnson (1913) 2030
D. V. D. (1911) 652
V. (1913) 632
D. (a Solicitor), In re; Law Society, ex
parte (1911) 1554
Da Costa, In re; Clarke v. St. Peter's
Collegiate School (1912) 163, 1122
Dacre, In re; Whittaker v. Dacre (1915)
1643, 1656
D'Arcy v. Adarason (1913) 182
Daff V. Midland Colliery Owners' Mutual
Indemnity Co. (1913) 2005
Dairymen's Foremen, In re (1912) 702
Dairy Supply Co. v. Houghton (1911) ... 917
Dakin & Co. v. Lee (1915) 356, 1886
Dale V. Powell (1911) 1092
Dalgleish v. Edinburgh Roperie and Sail-
cloth Co. (1913) 1995
Dallimore v. Williams (1914) 1624
Dalziel School Board v. Scotch Education
Department (1915) 1383
Damiens v. Modern Society, Lim. (1911) 1155
Dampskibsselskabet Danmark v. Poulsen
& Co. (1913) 14.57
Dampskibsselskabet Skjoldborg v. Calder
(1912) 1428
Dampskibsselskabet Svendborg v. Love &
Stewart, Lim. (1915) 1459
Daniels, In re; Weeks v. Daniels (1912) 1396
V. Trefusis (1914) 334, 1665
Dann v. Curzon (1911) 339. 392
Danzey v. Metropolitan Bank (1912) .... 1553
Darby, In re; Brougham, ex parte (1911) 113
Dare v. Bognor Urban Council (1912) ... 3-53
Darroll v. Glasgow Iron and Steel Co.
(1913) 2020
Date V. Gas Coal Collieries, Lim. (1914) 1012
Davey, In re; Brisk v. Mitchell (1915) ... 1119
David & Johnson, In re; Whinney, ex
parte (1914) 121
Davidson v. New Tabernacle Approved
Society (1915) 711
Davies, In re; Lloyd v. Cardigan County
Council (1915) 163, 176
V. Burrell (1912) 904, 91(i
V. Davies; Watts, In re (1913) ... 1568
V. Ebbw Vale Urban Council (1911)
955, 1374
V. Gillespie (1911) 1921
V. Glamorgan Coal Co. (1913) 1011
V. James Bay Railway (1914)... 193, 205
V. London Corporation (1913) 986
V. Wrexham and Acton Collieries
(1914) 1015
Davies' Trust, In re (1915) 1656
Davis V. London County Council (1914) 1381
V. Marrable (1913) 52(i
V. Morton (1913) 793
Davis's Estates, In re (1912) 1413
Davison's Settlement, In re; Davison v.
Munby (1913) 1418
Davys v. Buswell (1913) 1212
DaWlish, Tlie (1911) 58
Dawnay v. Cheesum (1915) 1673
TABLE OF CASES.
Dawson, In re; Pattisson v. Bathurst
(1915) 177
V. Bingley Urban Council (1911) ... 936
V. Dover and County Chronicle
(1913) 506
V. Eeid (1915) 1386
Deacon v. Evans (1911) 1418
V. Quayle (1912) 1419
Dealtry, In re; Davenport v. Dealtry
(1913) 1395
Dean v. Eubian Art Pottery, Lim. (1914) 1937
Deards v. Edinburgh Assessor (1911) ... 1264
Dearne Valley Railway v. Great Northern
Eailway (1914) ....." 1243
De Beers Consolidated Mines v. British
South Africa Co. (1912) 1036
Debenhams, Lim. v. Excess Insurance
Co. (1912) 722
Debi Mangal Prasad Singh v. Mahadoe
Prasad Singh (1912) 674
Debtor (No. 7 of 1910), In re ; Petitioning
Creditors, ex parte (1911) 124, 130
(No. 20 of 1910), In re (1911) 120
(No. 68 of 1911), In re; Judgment
Creditors, ex parte (1911) 112
(No. 305 of 1911), In re; Debtor,
ex parte (1911) 93
(No. 1,838 of 1911) (1912) 94
, In re (1912) 95
(No. 2 of 1912), In re (1912) 93
, In re; Powell, ex parte (1912) 125
(No. 211 of 1912), In re; Debtor,
ex parte (1913) 90
(No. 837 of 1912), In re (1913) 93
(No. 14 of 1913), In re (1913) 1215
(No. 1 of 1914), In re; Debtor, ex
parte (1914) 1548
(No. 30 of 1914), In re (1914) 95
(No. 37 of 1914), In re (1914) 94
De Crespigny's Settled Estate, In re
(1914) 1403
Deddington Steamship Co. v. Inland
Revenue Commissioners (1911) 1342
Dee Estates, In re; Wright v. Dee
Estates, Lim. (1911) 1567
Dee V. Yorke (1914) 26
Deeley v. Lloyds Bank (No. 1) (1912) 85, 1109
V. (No. 2) (1912) 382
Deering v. Targett (1912) 1424
Defries v. Milne (1912) 62
De Gasquet James (Countess) v. Meck-
lenburg Schwerin (Duke) (1914)
629, 634, 637, 736
Deighton v. Cockle (1912) 1179
De Jager v. Foster (1911) 216
De Keyser's Royal Hotel v. Spicer (1914) 1079
De la Rue & Co., In re (1911) 241
De la Warr's (Lord) Settled Estates, In
re (1911) 1404
De la Warr's (Earl) Cooden Beach Es-
tate, In re (191.3) 1404
De Lisle v. Union Bank of Scotland
(1914) 1048
Dellar v. Drury (1912) 902
Demerara Rubber Co., In re (1913) 317
De Montaigu v. De Montaigu (1913) ... 739
Dempsey v. Caldwell & Co. (1914) 2001
Dempster, In re; Borthwick v. Lovell
(1915) 31, 321
Denaby and Cadeby Main Collieries v.
Anson (1911) 1515
Denaby and Cadeby Main Collieries v.
Great Central Rai'lway (1915) 1236
Denman v. Finchley Urban Council
(1912) 924
Dennis v. Tunnard (1911) 9.59
V. Cork Steamship Co. (1914) 1468
Denny v. Conklin (1913) 66
Denny, Mott & Dickson, Lim. v. Standard
Export Lumber Co. (1912) 56
Dennys v. Dennys (1912) 654
" Den of Airlie " S.S. Co. v. Mitsui
(1912) 14.36
" Den of Airlie " S.S. Co. v. Mitsui
(1913) 48
Dental Manufacturing Co. v. De Trey &
Co. (1912) 1604
D'Epinoix's Settlement, In re ; D'Epinoix
V. Fettes (1914) 1647
Derby (Earl) v. Aylmer (1915) 1292
Derby (Earl) and Ferguson's Contract,
In re (1912) 1667
Derby Motor Cab Co. v. Crompton and
Evans' Union Bank (1913) 828
(1915) 828
Derham v. Strickland (1911) 370
Dering, In re; Neall v. Beale (1911) ... 1783
De Sommery, In re; Coelenbier v. De
Sommery (1913) 579, 1143
De Soysa v. De Pless Pol (1911)
211, 826, nil
Despard v. Wilcox (1911) 1128
Dettingen, The (1914) 1505
Deutsch - Australische Dampfschiffs-
Gesellschaft v. Sturge (1913) 1529
Deveraux, In re; Toovey v. Public
Trustee (1911) 1659
De Virte, In re; Vaiani v. De Virte
(1915) 532, 742
Devlin v. Chapel Coal Co. (1915) 2024
Devons v. Anderson (1911) 1966
Devonshire, The (1912) 1484, 1489, 1509
, , and St. Winifred (1912) ... 1478
Dewar v. Mintoft (1912) 70, 333
Deyes v. Wood (1911) 281
Diamond Coal Cutting Co. v. Mining
Appliances Co. (1915) 1105
Di Carlo v. M'Intyre (1914) 608
Dick V. Alston (1911) 1551
(or Learoyd) v. Alston's Trustees
(1913) 1551
Dickens v. National Telephone Co. (1911) 1584
Dickinson v. Dickinson (1913) 632
V. Ead (1914) 606
Dickson v. Scott, Lim. (1914) 1063
V. Stevenson (1912) 1745
Diggle V. Ogston Motor Co. (1915) 958
Dight V. " Craster Hall " (Owners)
(1913) 1967
Dingwall v. Burnett (1912) 356, 1112
Director of Public Prosecutions v. Ball
(No. 1) (1911) 471
V. (No. 2) (1911)
432, 472
V. Blady (1912) 450
V. Christie (1914) 446
V. Witkouski (1911) 616
Disconto Gesellschaft v. Brandt & Co.
(1915) 19
Dixon, In re; Dixon v. Dixon (1912) ... 1808
V. Brown (1915) 397
Xll
TABLE OF CASES.
COL.
Dixon Hartland. In re; Banks v. Hart-
land (1911) 485, 1326
Djambi (Sumatra) Rubber Estates, In re
(1912) 560
Dobbie v. Egypt and Levant Steamship
Co. (1913) .". 1951
Dobie V. Edwards; Hammer, In the
goods of (1911) 1819
Dobson V. British Oil and Cake Mills
(1912) 1996
V. Horslev (1914) 839
Dodd V. Cattell (1914) 1088
V. Pearson (1911) 902
Dodds V. Cosmopolitan Insurance Cor-
poration (1915) 300
Doecham Gloves, Lim., In re (1913) ... 240
Doherty v. Kennedy (1912) 266
Doleman v. Ossett Corporation (1912) ... 58
Dominion Cotton Mills Co. v. Amyot
(1912) 260
Dominion of Canada General Trading
and Investment Syndicate v. Brig-
stocke (1911) ." 292
Dominion of Canada v. Province of
Ontario (1911) 206
Domira, The (1914) 1475
Donaghue v. Mclntyre (1911) 774
Donaghy v. Walsh (1914) 608
Donaldson, In re; Watson v. Donaldson
(1915) 1813
Don Bros., Buist & Co. v. Scottish In-
surance Commissioners (1913) 710
Doncaster Union v. Woolwich Union
(1915) 1131
Donkin v. Pearson (1911) 387
Donoughmore's Estate, In re (1911) ... 1123
Dooley v. Dooley (1911) 656
Dooner v. Odium (1914) 815
Dotesio V. Bliss (No. 1) (1912) 1675
V. (No. 2) (1912) 1555
Douglas V. Sanderson (1911) 5.34
Douglass V. Ehyl Urban Council (1913) 870
Dover Picture Palace v. Dover Corpora-
tion (1913) 888
Dowling, In re; Dowling v. Fenwick
(1913) 1325
Down (bounty Council v. Irish Insurance
Commissioners (1914) 704
Doyle V. Craig (1911) 539
Draupner, The (1911) 1448
Drawmer's Estate, In re (1913) 1768
Drayton, In re ; Francis v. Drayton (1912)
28, 32
Drew V. Drew (1912) 630
Drumlanrig, The (1911) 1485
Drummond, In re; Ashworth v. Dnim-
mond (1914) 161, 1122
V. Collins (1914) 1280
V. Nicholson (1915) 921
Drylie v. Alloa Coal Co. (1913) 1894
Dablin City Distillery v. Doherty (1914)
146, 266, 312
Dublin Corporation and Baker, In re ;
Thompson, ex parte (1912) 845
Dublin Corporation v. Regem (1911) 473
Dublin and Manchester Steamship Co.
V. London and North- Western Railway
(1912) 1250
Duchesne v. Finch (1912) 792
Du Cros's Application, In re (1912) 1611
Du Cros V. Gold (1913) 1604
Dudderidge v. Rawlings (1913) 1740
Dunbar t). Harvey (191.3) 1005
Duncan v. Lockerbie & Wilkinson (1912) 1104
Duncan, Fox & Co. v. Schrempt (1915)
1367, 1684
Duncannon (Viscount) v. Manchester
(Duke); Manchester (Duchess), In re
(1912) 1322
Duncanson v. Scottish County Invest-
ment Co. (1915) ." 1883
Dundas v. Phyn (1914) 27
Dundas Trustees v. Dundas Trustees
(1912) 1331, 1408
Dundee Harbour Trustees v. Nicol (1915)
1576, 1760
Dunford v. Corapania Maritima Union
(1912) 1428
Dunlop Pneumatic Tyre Co. v. New
Garage and Motor Co. (1913) .39
(1914) '. Ill
V. Self ridge & Co.
(1915) 335, 336, 1111
Dunn, In re; Simmons v. Liberal
Opinion (1911) 1553
V. Morgan (1915) 1793
Dunne v. Byrne (1912) 164
Dunnigan v. Cavan and Lind (1911) 1597
Dunning v. Dunning (1911) 662
V. Maher (1912) 626
V. Swetman (1911) 615
V. Trainer (1911) 796
Dupleix, The (1911) 1481
Duppa, In re; Fowler v. Duppa (1912) ... 1319
Durell V. Gread (1914) 815, 1034
Durga Prasad Singh v. Rajendra Nara-
yan Bagehi (1914) 488
Durham Collieries Electric Power Co.,
In re ; Poole v. The Company (1913) ... 288
Duris V. W^ilsons and Clyde Coal Co.
(1912) 1979, 2017
Dyer v. Wilsons and Clyde Coal Co.
(1915) 1975
Dyhouse v. Great Western Railway
(1913) 1909
Dysart (Earl) v. Hammerton (1914) 1181
Dvson, Ex parte (1915) 1683
— — V. Att.-Gen. (1911) 474, 1188
V. (1912) 1302
East, In re ; London and County Banking
Co. V. East (1914) 570
East Asiatic Co. v. Toronto S.S. Co.
(1915) 1445
East V. Bennett Bros., Lim. (1911) 280
V. Berkshire County Council (1912) 1733
East Kent Colliery Co., In re (1914) 306
East Indies Commercial Co. v. Nilambur
Rubber Estates (1915) 238, 337, 354
East London Railway Joint Committee
V. Bermondsev Assessment Committee
(1913) ' 125
V. Greenwich
Assessment Committee (1913) 1265
V. Stepney
Assessment Committee (1913) 1265
Eastern Construction Co. v. National
Trust Co. (1914) 207
Eastern Trust Co. v. McKenzie, Mann &
Co. (1915) 184,327,473,688
Eastes v. Russ (1914) 343
Easton v. Hitchcock (1912) 354, 1196
I
TABLE OF CASES.
COL.
Eastwood V. Ashton (1915) 1669
V. McNab (1914) 827
Eaton V. Buchanan (1911) 1653
Ebbw Vale Steel Iron and Coal Co. v.
Macleod & Co. (1915) 1367
Eccles V. Louisville and Nashville Kail-
road Co. (1911) 45, 565
Eccles Provident Industrial Co-operative
Society v. Griffiths (1912) 677
Ecclesiastical Commissioners v. Page
(1911) 761
t. Upjohn (1913) 529
Edgar, Ex parte (1913) 791
■ V. Hector (1912) 1368
V. Lamont (1914) 1072
Edge tJ. Gorton (1912) 1998
V. Niccolls (1911) 1604
Edgerton v. Moore (1912) 1958
Edgeworth v. Inland Kevenue Commis-
sioners (1912) 1330
Edinburgh Corporation v. British Linen
Bank (1912) 290
Edinburgh Life Assurance Co. v. Y.
(1911) 564
Edinburgh Magistrates v. Lord Advocate
(1912) 474
Edinburgh Parish Council v. Edinburgh
Magistrates (1912) 1262
V. Leith Magistrates
(1912) 1265
V. Local Government
Board of Scotland (1915) 1136
Edmondson v. Copland (1911) 1048
Edmunds v. " Peterston " (Owners)
(1911) 1921
Edwards v. Perry (1915) 374
V. Wingham Agricultural Imple-
ment Co. (1913) 1924
E. D. S., In re (1914) 939
E. G., In re (1914) 940
Egmont's (Earl) Settled Estates, In re;
Lefroy v. Egmont (1911) 1321, 1401
Eke V. Hart-Dyke (1911) 1892
Eley V. Moreland (1915) 2028
Elkington v. Cooke-Hill (1914) 140
V. London Association for Protection
of Trade (1911) 495, 1172
Ella, The (1914) 1520
Ellard v. Phelan (1914) 1320, 1788, 1823
EUerman Lines v. Clyde Navigation
Trustees (1911) 1479
Ellice V. Invergarry and Fort Augustus
Railway (1913) 1255
Elliott V. Roberts (1912) 332, 1065
Ellis V. Allen (1914) 1180
V. Banyard (1912) 24,1065
V. Fairfield Shipbuilding and En-
gineering Co. (1913) 1960
V. North Metropolitan Theatres
(1915) 179
Ellis & Co. V. Cross (1915) 131
Elson V. Crookes (1912) 695
Ely (Bishop) v. Close (1913) 523
Elysia, The (1912) 1491
Emanuel & Co. u. Weir & Co. (1914) ... 1525
Embiricos v. Reid & Co. (1914) ... 1432, 1433
Embury, In re; Page v. Bowyer (1913)... 1783
, In re; Bowyer v. Page (1914) 1782
Empire Guarantee and Insurance Co.,
In re (1912) 1181
Empire Guarantee and Insurance Cor-
poration, In re (1911) 732
Empire Guarantee and Insurance Cor-
poration (Liquidators) v. Owen & Sons,
Lim. (1915) 734
Empress of Britain, The (1913) 1483
Enever's Trusts, In re; Power v. Power
(1912) 1150
English V. ClifiE (19i4) 1115, 1598
Engravers, In re; Lithographic Artists,
In re (1913) 702
Enterprise, The (1912) 1480
Equitable Life Assurance Society of
United States and Mitchell, In re
(1911) 666
Equitable Life Assurance Society of
United States v. Reed (1914) 215
Eric County Natural Gas and Fuel Co.
V. Carroll (1911) 476, 482
Errington v. Birt (1911) 830
Esberger v. Capital and Counties Bank
(1913) 267
Etheridge v. Central Uruguay Northern
Extension Railway (1913) 259
Eumaeus, The (1915) 1685, 1705, 1709
Euman v. Dalziel & Co. (1912) 2009
V. (1913) 1898
Eustace, In re; Lee v. McMillan (1912)
581, 1036
Evans, In re; Jones v. Evans (1912) 301, 1587
t-. Edinburgh Magistrates (1915) ... 1068
V. Gwauncaegurwen Colliery Co.
(1912) 2010
V. Gwendraeth Anthracite Colliery
Co. (1914) 1008
V. Main Colliery Co. (1915) 1190
V. Morris (1913) 361
V. Rival Granite Quarries Co.
(1911) 68, 271
Evans & Co. v. Astley (1911) 1909
■ V. London County Council
(1914) 968
Evans and Glamorgan County Council,
In re (1912) 900
Evanson v. Crooks (1911) 694
Evan-Thomas v. Neath Corporation
(1912) 1715
Exeter (Archdeacon) v. Green (1912) ... 523
Ezardian. The (1911) 1480
F. V. F. (1911) 631
Faberge v. Goldsmiths Co. (1911) 1336
Factories Insurance Co. v. Anglo- Scottish
General Commercial Insurance Co.
(1913) 1161
Fagot V. Fine (1911) 1025
Fairbanks v. Florence Coal and Iron Co.
(1915) 1018
Fairclough v. Swan Brewery Co. (1912) 1037
Fairfield Shipbuilding Co. v. Gardner,
Mountain & Co. (l9ll) 1544
Fairhurst v. Price (1911) 749, 771
Fairport, The (1912) 1475
Falkirk Magistrates v. Russell (1912) ... 620
Falkner's Estate, In re (1915) 1773
Famatina Development Corporation, In
re (1914) 958, 1199
Fane, In re; Fane v. Fane (1913) 1120
Fanny, The (1912) 1488
Faraker, In re ; Faraker v. Durell (1912)
173, 476
Paris, In re; Goddard v. Goddard (1911)
1767, 1800
TABLE OF CASES.
COL
Farmer v. Cotton's Trustees (1915) 1300
V. Edinburgh Juridical Society
(1915) 1276
V. Scottish North American Trust,
Lim. (1912) 1288
Farmers' Mart, Lim. v. Milne (1914) ... 338
Farnot, Eades, Irvine & Co., In re; Car-
penter V. The Company (1915) 274
Farrer & Gilbert's Contract, In re (1913) 1668
Fauntleroy v. Beebe (1911) ... 367, 581, 1088
Faux, In re; Taylor v. Faux (1916) ... 1791
Fawcett v. Smethurst (1914) 680
Fawke v. Miles (1911) 560
Fear v. Yickers (1911) 1715
Federal Supply and Cold Storage Co. v.
Angehrn (1911) 959
Feliciana, The (1915) U
Felstead v. Director of Public Prosecu-
tions (1914) 465
Fengl V. Fengl (1914) 564, 660
Fenner v. McNab (1912) 1677
Fenning's Film Service, Lim. v. Wol-
verhampton, Walsall, and District
Cinemas, Lim. (1914) 363
Ferguson v. North British Railway (1916) 1228
Fernando v. De Silva (1913) 6, 210
Fernde v. Gorlitz (1915) 1553
Fiat Motors' Application, In re (1911) ... 1097
Field V. Grady (1913) 33
Finlay, In re ; Wilson & Co. v. Finlay
(1913) 1198
Finlay's Estate, In re (1913) 1807
Finlay v. Tullamore Union (1914) 1911, 1942
Finlayson tj. " Clinton " (Owners) (1915) 1978
Firman v. Firman (1915) 646
Firth, In re; Firth v. Loveridge (1912) 1658
, In re; Loveridge v. Firth (1914) ... 1811
Fisher, In re; Robinson v. Eardley (1915) 1815
Fisher & Sons, In re (1912) 1089, 1092
Fisher v. Great Western Railway (1911) 847
Fitzgerald, In re (No. 1) (1915) 119
, In re (No. 2) (1916) 1561
Fitzwilliam (Earl) v. Inland Revenue
Commissioners (1914) 1313
Flach V. London and South-Western
Bank (1915) 1030
Flamenco, The (1915) 1708
Fleet V. Johnson (1913) 1926
Fleetwood and District Electric Light
and Power Syndicate, In re (1915) ... 318
Fleming v. London County Council (1911) 987
Fletcher v. " Duchess " Steamship
(Owners) (1912) 1917
V. Fletcher (1915) 636
Flood V. Smith & Leishman (1915) 1961
Flude, Lim. t;. Goldberg (1915) 747
Flynn v. Harte (1913) 620
Foley V. Foley (1911) 667
Folkestone Corporation v. Brockman
(1914) 1729
Foote V. Greenock Hospital Directors
(1912) 1072
Foran v. Att.-Gen. (1915) 1316
Forbes v. Samuel (1913) 564, 1086
Ford, In re; Myers v. Molesworth (1911)
46, 1803
V. Leetham (1915) 1364
Ford Motor Co. (England) v. Armstrong
(1915) nil
Forrest v. Scottish County Investment
Co. (1916) 1886
Forrester v. Norton (1911) 368, 545
Forster-Brown, In re; Barry v. Forster-
Brown (1914) 1836
Forster v. Forster (1912) 663
Forsyth v. Manchester Corporation (1912) 977
Fortescuet;. Bradshaw (1911) 1028
V. McKeown (1914) 328
Foss, Bilbrough, Plaskitt & Foss, In re
(1912) 1560, 1568
Foster v. Richmond (1911) 518
Foucar & Co., In re (1913) 239
Foundling Hospital (Governors) v. Crane
(1911) 486
Fowke V. Berrington (No. 1) (1914) 561
V. (No. 2) (1914) 525
Fowler, In re ; Fowler v. Booth (1914) ... 168
Fox, The (1914) 1456
, In re ; Brooks v. Marston (1913)
859, 1035
V. Barrow Hematite Steel Co.
(1915) 1963
V. Central Silkstone Collieries (1912) 393
V. Jolly (1915) 818
France, Fenwick & Co. v. Merchants
Marine Insurance Co. (1915) 1631
, V. Spackman (1913) ... 1464
Francis Day & Hunter v. Feldman & Co.
(1914) 364
Franklin v. Dawson (1913) 1200
V. Franklin (1916) 1168
Frankly n, In re; Franklyn v. Franklyn
(1914) 580
Frank's Estate, In re (1915) 553
Eraser v. Fear (1912) 693
V. Riddell & Co. (1914) 1905
Eraser's Settlement, In re; Ind v.
Eraser (1913) 1411
Frazer v. Riversdale (1913) 1148
Free & Sons, In re (1911) 315
Freeman v. Chester Rural Council (1911) 60
V. Freeman (1911) 644
V. Fox (1911) 1547
Freeman-Mitford, Ex parte (1914) 399
Fremantle v. Fremantle (1915) 646
Freme, In re; Samuel v. Freme (1912) ... 1395
French v. French (1914) 653
Frengley, In the goods of (1916) 1773
Freshwater, Yarmouth, and Newport
Railway, In re (1913) 1266
Frewen v. Hays (1912) 1666
Fridland, The (1915) 1700
Friend v. Brehout (1914) 692
Frith V. " Louisianian " (Owners) (1912)
1917, 1918
Fruit and Vegetable Growers' Associa-
tion V. Kekewich (1912) 284
Fry, In re; Fry v. Fry (1912) 1818
V. Cheltenham Corporation (1911) 1219
- V. Smellie (1912) 1201
Fuller, In re; Arnold v. Chandler (1915) 1798
t,. Chippenham Rural Council (1915) 1729
V. Glyn, Mills & Co. (1913)
83, 303, 559, 1201
Funnell, In re; Dyne v. Funnell (1912) 574
Furtado v. City of London Brewery Co.
(1914) 1297
G. (a solicitor). In re; Law Society,
ex parte (1911) 1554
G. V. G. (1912) 631
I
TABLE OF CASES.
XV
COL.
Gabriel v. Churchill & Sim (1915) 1193, 1209
Gadd V. ThompsoQ (1911) 350, 677
Galbraith's Stores, Lim. v. M'lntyre
(1912) 1761
Galileo, The (1913) 1443
"Galileo," The; Wilson, Sons & Co. v.
"Galileo" Cargo Owners (1914) 1443
Gallant v. " Gabir " (Owners) (1913) ... 1920
Gallivan v. Killarney Urban Council
(1912) 1883
Galloway v. Halle Concerts Society (1915) 298
r. Galloway (1914) 1022
(Earl) V. McClelland (1915) 834
V. Schill, Sebobm & Co. (1912) ... 289
Galula V. Pintus (1911) 1109
Gamage, Lim. v. Spalding (1915) 1098
Gamble v. Jordan (1913) 1222
Gannon, In re; Spence v. Martin (1914) 1808
Gardner, In re; Eoberts v. Fry (1911) ... 582
V. Iredale (1912) 285, 294
Gardiner & Co. ?;. Dessaix (1915) 1807
Gardom, In re; Le Page v. Att.-Gen.
(1914) 169
Garnant Anthracite Collieries v. Eees
(1912) 1939
Garrett v. Waddell (1911) 1982
Garston Overseers v. Carlisle (1915) 1280
Garwood v. Garwood (1911) 1094
Gaskell v. Lancashire and Cheshire
Miners' Federation (1912) 1625
Gaston v. United Newspapers, Lim.
(1915) 1172
Gateshead Corporation v. Lumsden
(1914) 1296
Gaudig & Blum, In re; Spalding v.
Lodde (1915) 15
Gaunt V. Inland Revenue Commissioners
(1913) 1299
Gavacan, In re; O'Meara v. Att.-Gen.
(1913) 1641
Geary v. Ginzler (1913) 1901
Gee V. Liddell (1913) 1050
Geiger, In re (1913) 130
, In re; Geiger, ex parte (1915) 128
Geikie, In re; Robson v. Paterson (1911) 175
Gelmini v. Moriggia (1913) ... 140, 853, 1187
Genders v. London County Council (1914)
843, 987
General Electric Co. v. Evans (1911) ... 1236
V. Great Western Rail-
way (1912) 1254
General Estates Co. v. Beaver (1912) ... 387
V. (1914) 1760
General Hydraulic Power Co. v. Hancock
(1914) 1289
General Motor Cab Co., In re (No. 1)
(1912) 288
, In re (No. 2) (1912) 274
General Steam Navigation Co. v. Com-
mercial Union Assurance Co. (1915) ... 1534
V. Janson (1915) ... 1534
General Trading Co. and Van Stolk's
Conmiissiehandel, In re (1911) 1360
Genforsikrings Aktieselskabet v. Da
Costa (1911) 1523
Genn v. Winkel (1912) 1352
George v. Davies (1911) 959
V. James (1914) 970
V. Thomas (1911) 799
German v. Yates (1915) 64
Germania, The (1915) 1696
COL.
Gershon & Levy, In re; Coote &
Richards, ex parte (1915) Ill
Ghaswala v. Secretary of State for India
(1911) 673
Giannetti v. Giannetti (1913) 633
Gibbons v. Lenfestey (1915) 212
Gibson & Co. t). Gibson (1913) 745
__ c. Wishart (1914) 2025
Gilbert, In the goods of (1911) 1768
V. Cossey (1912) 813
Gilbey v. Cossev (1912) 813
Giles V. Randall (1914) 379
Gillespie, In re; Knapman v. Gillespie
(1914) 122, 598
Gillow V. Durham County Council (1913) 13R2
Gilmour v. Dorman, Long & Co. (1911) 1923
Gilroy v. Gilrov (1914) 653
Ginn v. Robey (1911) 379
Glamorgan Coal Co. v. Glamorgan Quar-
ter Sessions and County Council Joint
Committee (1915) 1345
V. Glamorganshire County
Council (1915) 1125
Glamorgan County Council v. Barry
Overseers (1912) 1271
V. Cardiff Corporation
(1914) 876
Glamorgan County Council v. Cardiff
Union (1911) 1137
Glasgow, The (1915) 34
Glasgow Assurance Corporation (Liquida-
tors) V. Welsh Insurance Corporation
(1914) 733
V. Symondson (1911) 1545
Glasgow Corporation v. Lorimer (1911) 978
V. Smithfield and Argentine
Meat Co. (1912) 904
Glasgow Court House Commissioners v.
Glasgow Parish Council (1913) 12-59
Glasgow and Govan Parish Councils v.
Glasgow Assessor (1911) 1260
Glasgow Insurance Committee v. Scottish
Insurance Commissioners (1915) 709
Glasgow Parish Council v. Glasgow
Assessor (1912) 1259
V. (1914) 1260
V. Martin (1911) ... 685, 697
Glasgow Society for Prevention of Cruelty
to Animals v. National Anti- Vivisection
Society (1915) 175
Glasgow and South- Western Railway v.
Ayr (Provost) (1912) 1384
V. Boyd & Forrest
(1915) 356, 1880
Glaskie v. Griffin (1914) 1029
V. Petry (1914) 1033
Glass V. Inland Revenue (1915) 1307
Gleeson, In re; Smyth v. Gleeson (1911) 140
Glegg V. Bromley (1912) ... 63, 64, 156, 597
Glenmorven, The (1913) 1474, 1479
Glensloy Steamship Co. v. Inland
Revenue (1914) 1284
Glenville v. Selig Polvscope Co. (1911) ... 363
Globe Trust, In re (1915) 305, 1190
Glossop V. Bulay, Lim., Ex parte; Rex
V. Hull Licensing Justices (1913) 755
Glover v. Robertson (1912) 25
Goby V. Wetherill (1915) 1176
Godbold V. London County Council (1914) 1984
Goddard, In re ; Hooker v. Buckley (1912) 1045
V. Goddard (1915) 645
Godden v. Cowlin (1913) 2000
TABLE OF CASES.
Godding, In re; Partridge, ex parte
(1914) 116
Godfree, In re ; Godfree r. Godfree (1914) 1591
Godman v. Crofton (No. 1) (1914) 713
v. (No. 2) (1914) 802
Godsell V. Lloyd (1911) 137
Godwin V. Admiralty Commissioners
(1913) 1956
GofF, In i-e ; Featherstonehaugh v.
Murphy (1914) 1823
Goldburg, In re; Page, ex parte (1912)
101, 278
, In re; Silverstone, ex parte (1912) 100
Golden Horseshoe Estates Co. v. Eegem
(1911) 190
Golders Green Amusement and Develop-
ment Co. V. Eelph (1915) 482, 1596
Goldfoot V. Welch (1914) 810
Golding r. Royal London Auxiliary In-
surance Co. (1914) 717
Goldsoll V. Goldman (1915) 347, 478
Goldstein v. Sanders (1915) 824
Gompertz's Estate, In re; Parker v.
Gompertz (1911) 582
Gonville's Trustee v. Patent Caramel Co.
(1912) 598
Goodbody v. Poplar Borough Council
(1915) 550, 1081
Goodfellow V. Nelson Line (1912) 273
Gooding v. White (1913) 1539
Goodisson v. Goodisson (1913) 1766
Goodsell V. "Lloyds" (Owners) (1914) 1986
Gordon v. Hanson (1914) 591
V. Holland (1913) 1090
V. Love (1911) 907. 911
V. Mackenzie (1913) 21
V. Smith (1913) 1187
Gordon & Adams's Contract, In re (1914) 1398
Gordon Cumming v. Houldsworth (1911) 1679
Gordon Steamship Co. v. Moxey (1913) 1431
Gorenstein v. Feldmann (1911) 615
Gorman v. Moss Empires, Lim. (1913) ... 496
Gosweirs Trusts, In re (1915) 3-59
Gotobed v. Petchell (1914) 2025
Gould V. Curtis (1913) 1293
Gracie v. Clyde Spinning Co. (1915)
1977,1980
Grafton Club, Ex parte (1912) 805
Graham v. Barr & Thornton (1913) 1923
V. Tanner (1913) 1107
Grahamston Iron Co. v. Inland Revenue
(1915) 1288
Gramophone Co. v. King (1914) 1034
V. Magazine Holder Co. (1911) 1621
Grand Hotel, Eastbourne v. White (1914) 519
Grand Lodge of Freemasons v. Inland
Revenue (1912) 1333
Grand Trunk Pacific Railway v. Fort
William Landowners (1911) 195
V. Regem (1911) ... 196
Grand Trunk Railway v. Barnett (1911) 1054
V. Robinson (1915) 196, 1229
Grand Trunk Railway of Canada v.
McAlpine (1913) 197, 1055
Grant, In re; Nevinson v. United King-
dom Temperance and General Provi-
dent Institution (1915) 1326
V. Fleming & Co. (1914) 1063
Gratia, The (1911) 1521
, (1912) 1522
Gray v. Caledonian Railway (1912) 1054
V. Gray (1915) 1778
COL.
Gray t'. North British Railway (1915) ... 2009
V. Shotts Iron Co. (1913) ... 1979, 2021
Gray, Dawes & Co. v. Reed (1913) 2017
Great Central Railway r. Balby-with-
Hexthorpe Urban Council (1912) 1224
V. Lancashire and York-
shire Railway (1911j 1235
V. Midland Railway (1914) 1226
Great Cobar, Lim., In re; Beeson v. The
Company (1915) 280
Great Northern Railway v. Hunslet
Union (1911) 1266
Great Southern and Western Railway,
Ex parte (1914) 1239
V. City of Cork
Steam Packet Co. (1912) 1242
V. Wallace (1913) 1248
Great Western Railway and Metropolitan
Railway, In re (1911) 1227
Great Western and Metropolitan Rail-
ways V. Hammersmith Assessment
Committee (1915) 1266
V. Kensington
Assessment Committee (1915) 1266
Green, In re; Bath v. Cannon (1914) 1785
, In re ; Green v. Meinall (1911) 631
V. Brisley (1913) 1638
V. Cammell, Laird & Co. (1913) ... 2003
V. Garbutt (1912) 1172
V. Green (1913) 654
V. Hackney Corporation (1911) 986
V. Morris '(1914) 624
V. Reinberg (1911) 1040
V. Tughan (1913) 1197
Green's Application, In re (1911) 1097
Greenberry, In re ; Hops v. Daniell (1911) 1800
Greene v. Shaw (1912) 1908
Greenlands, Lim. v. Wilmshurst (1913)
494, 1177, 1179
Greenslade, In re; Greenslade v.
McCowen (1914) 682, 1152
Greenwich Borough Council v. London
County Council (1912) 1000
Greenwood, In re; Greenwood v. Firth
(1911) 1653
, In re ; Greenwood v . Sutcliffe
(1912) 1795
V. Lutman (1915) 664, 1146
V. Nail & Co. (1915) 2000
Gregg V. Kennedy (1911) 544
Gregory v. Torquay Corporation (1912) ... 388
• V. Traquair (1912) 536
V. Walker (1912) 1009
Gregson v. Taplin & Co. (1915) 261
Grenfell, In re; Plender, ex parte (1915) 120
Gresham Life Assurance Society v.
Crowther (1915) 808, 1013
Greslev, In re; Willoughby v. Drum-
mond (1911) 1794
Greville-Smith v. Tomlin (1911) 866
Grey & Co. c. Tolme (No. 1) (1915) 54
V. (No. 2) (1915) 1365
Greyvensteyn v. Hattingh (1911) ... 807, 1636
Grierson v. National Provincial Bank of
England (1913) 1046
Griffith V. Clay (1912) 521
Griffiths, Ex parte; Rex v. Allen (1911) 540
TABLE OF CASES.
Griffiths, III re; Griffiths v. Waghorne
(1911) 1781, 1803
V. Atkinson (1912) 1957
V. Benn (1911) 4'2, 492
V. Gilbertson & Co. (1915) 1999
V. Griffiths (1912) '547
Griggs, In re; London School Board,
ex parte 845
Grimble & Co. r. Preston (1913) 913
Grime v. Fletcher (1915) 1965
Grimwade v. B. P. S. Syndicate (1915) ... 249
Groom, Lira. v. Barber (1914) 1349
Groos, In re; Groos v. Groos (1915) 740
Grosvenor v. Butler; Cavendish Settle-
ment, In re (No. 1) (1912) 1412
V. ; , In re (No. 2)
(1912) 1410
Grosvenor Chapel, South Audlev Street,
In re (No. 1) (1913) .'. 526
, , In re (No. 2)
(1913) 528
Grovehin-st, The (1911) 1498
Groves v. Cheltenham and East Glouces-
tershire Building Societv (1913) .597
r. Webl) (1915) '. 73
Gruudt, In the estate of (1915) ... 1772, 1774
Guaranty Trust Co. of New York v.
Hannay & Co. (1915) 1160
Guest's Estates r. Milner's Safes (1911 1 .520
Guiard v. De Clermont (1914) 745
Guildford Corporation v. Brown (1914) ... 1222
Guillet V. Guillet (1911) 630
Gullan V. Gullan (1913) 633
Gun, In re; Sheehy v. Nugent (1915) ... 1147
Gunatilleke v. Fernando (1912) 209
Gundry v. Dunham (1915) 1275
Gunyon v. South-Eastern and Chatham
Eailway (1915) 1230
Guthrie v. Kinghorn (1913) 1910
Haas V. Atlas Insurance Co. (1913) 700
Habra v. Habra (1914) (544
Hackney Furnishing Co. v. Watts (1912) 511
Hackney Union v. Kingston-upon-Hull
Incorporation (1912) 1133
Haddington Island Quarry Co. v. Hudson
(1911) 1051
Haddon & Co. v. Bannerman (1912) ... 1622
Hadham Rural Council v. Crallan (1914 1
871. 922, 1668
Hadsley v. Dayer-Smith (1914) 341. 349
Hailsham Cattle Market Co. v. Tolman
(1914) 951
Hale, In the goods of (1915) 1765
V. Hale (1915) (345
V. Morris (1913) 1338
Hales V. Buckley (1911) 772
Halifax City v. Novia Scotia Car Works
(1914) 203
Halifax Theatre de I^uxe v. (iledhill
(1915) 179
Hall, In re; Hall v. Hall (1915) 168
, In re; Hall v. Knight (1913) 1779
, In re; Watson v. Hall (1912) 1798
V. Burneli (1911) 1675
V. Hall (1911) 668
V. (1914) 649
V. (1915) 650
V. Havman (1912) 1543
V. Jones (1915) o43
COL.
Hall V. Manchester Corporation (1915) ... 891
V. Seisdon Union (1913) 1261
V. Tamworth Colliery Co. (1911) ... 1952
V. Whiteman (1912) 148
Hall, Bros., Steamship Co. v. Paul, Lira.
(1914) 1427
Hall's Charity, In re (1912) 1758
Halliday v. Taffs (1911) 1419
Halsev v. Wolfe (1915) 1028
V. Lowenfleld (1915) 11
Halstou, In re; Ewen v. Halston (1912)
1186, 1777
Halvorsen v. Salvesen (1912) 1918
Hamabai Framjee Petit v. Secretary of
State for India (1915) 842
Hambledon Union v. Cuckfield Union
(1915) 1131
Hamilton v. Bryant (1914) 355
V. Clancy (1914) 1582
Hamilton's Executor v. Bank of Scotland
(1913) 1214
Hammerton v. Dysart (1915) 1759
Hammond, In re; Burniston v. White
(1911) 1780
V. Jackson (1914) 389
Hamp Adams v. Hall (1911) 1166
Hampson v. Hampson (1914) 645
Hampstead Garden Suburb Trust v.
Denbow (1913) 1739
Hampton v. Glamorgan Countv Council
(1915) ". 1880
V. Toxteth Co-operative Societv
(1915) .". 731
Hanau v. Ehrlich (1912) 334
Hanbury v. Llanfrechfa Upper Urban
Council (1911) 1716
Hanbury's Settled Estates, In re (1912) 1404
, In re (No. 2) (1913) 1397
Hancock v. Stephens (1915) 525
Hanif-un-nisa v. Faiz-un-nisa (1911) ... 563
Hanley v. Edinburgh Corporation (1913) 935
V. Pease & Partners, Lim. (1915) 957
Hann v. Plymouth Corporation (1911) ... 1372
Hans V. Graham (1914) 1108
Happe V. Manasseh (1915) 1032
Harben v. Gordon (1913) 381
Harberton, The (1913) 1506
Harcourt's Trusts, In re; White v. Har-
court (1911) 1408
Harding v. Brynddu Colliery Co. (1911) 1935
Hardy's Crown Brewerv, In re (No. 2)
(1911) ■. 760
Hares f. Curtin (1913) 1375
Hargreave v. Haughhead Coal Co. (1912) 2022
Hargrove, In re; Hargrove v. Pain (1915) 532
Harley v. Samson (1914) 1182
Harman, In re (1915) 1558
Harmer & Co. v. Gibb (1912) 1210
Harnett & Co. (or liaw), In re (1914) ... 1556
Harper, In re ; Plowman v. Harper (1913) 1792
V. Evjolfsson (1914) 1569
V. Keller, Brvant & Co. (1915) 1208
Harper & Co. v. Bland & Co. (1915) 1451
Harper's Ticket Issuing and Recording
Co., In re (1912) 247
Harpur v. Swansea Corporation (1913) ... 1720
Harrington v. Pearl Life Assurance Co.
(1914) <i99
Harris, In re; Davis v. Harris (1914) ... 572
, In re; Harris v. Harris (1912) ... IS.'.O
V. Chesterfield (Earl) (1911) 592
C
TABLE OF CASES.
COL.
Harris v. Harrison (1914) 227
V. Taylor (1914) 746
Harris Calculating Machine Co., In re;
Sumner y. Harris Calculating Machine
Co. (1914) 275
Harrison, In re; Harrison v. Att.-Gen.
(1915) 169, 321
V. Bull (1912) 156, 388
V. Dodd (1914) 1422
Harrison, Lira. v. Dowling (1915) 1974
Hart, In re; Green, ex parte (1912) 104, 105
, In re; Hart v. Arnold (1913) 1839
V. Cory Bros. (1915) 2022
V. Marylebone Borough Council
(1912) 997, 1219
u. Rogers (1915) 837
Harter, In re; Harter v. Harter (1913) 1644
Hartlepool Electric Tramways Co. v.
West Hartlepool Corporation (1911) ... 1031
Hartshorne v. Coppice Colliery Co. (1912)
1983, 1984
Harwood v. Wyken Colliery Co. (1913) ... 1899
Hatfield (Owners) v. Glasgow (Owners)
(1915) 34, 35, 1472
Hatton V. Car Maintenance Co. (1914) ... 851
Hatzfeldt v. Alexander (1911) 1570,1664
Havana Exploration Co., In re (1915) ... 318
Havercroft v. Dewev (1915) 541
Haward v. Rowseir(1915) 1964
Hawke, The (1912) 41
, H.M.S. (1913) 499
V. Hulton (1911) 615
Hawkes, In re; Reeve v. Hawkes (1912) 1817
Hawkins, In re; Hawkins v. Argent
(1914) 1802
V. Powell's Tillery Steam Coal
Co. (1911) 1913
Hawkins & Co., In re; Brieba v. Haw-
kins & Ca. (1915) 273
Hawley, In re ; Ridgwav, ex parte (1915) 96
Haworth v. Pilbrow (1912) 41
Haxby v. Wood Advertising Agency
(1914) '.. 44
Hay, In re (1913) 98
, In le; Stanley Gibbons, Lim. v.
Hay (1915) 124
Haydon v. Haydon (1911) 484
Havgarth, In re; Wickham c. Haygarth
(1913) 1836
, In re; r. Holmes (1912) ... 1118
Haylett v. Thompson (1911) 1420
Hayllar v. Inland Revenue Commis-
sioners (1913) 1309
Haynes v. Davis (1915) 914
V. De Beck (1915) 376
V. Ford (1911) 952
Hayward v. Farabee (1915) 39
V. West Leigh Colliery Co. (1915) 1964
Hazlemere, The (1911) 1501
Hazlette, In re (1915) 863
Healey v. Healey (1915) 669, 1414
• V. Wright (1912) 134
Heard v. Gabbett (1915) 782
V. Pickthorne (1913) 704
Hearn, In re; De Bertodano v. Hearn
(1913) 1186
Hearts of Oak Assurance Co., In re
(No. 1) (1914) 732
, In re (No. 2)
(1914) 732
COL.
Heath's Garage, Lim. v. Hodges (1915) 1066
Heath's Patent, In re (1912) 1097
Heathcote, In the goods of (1913) 1769
Heathcote & Rawson's Contract (1913) 360
Hebert v. Royal Society of Medicine
(1911) 43
Heerman, In the goods of (1911) 1771
Heilbut, Symons & Co. v. Buckleton
(1913) 291
Helliwell v. Haskiiis (1911) 906
Helsby, In re; Neate v. Bozie (1912) ... 1789
Helsham-Jones v. Hennen & Co. (1915) 1598
Hemsoth, Lim. (1915) 1693
Henderson's Nigel Co., In re (1911) ... 320
Henderson's Trustees v. Inland Revenue
Commissioners (1913) 1342
Hendon Paper Works Co. v. Sunderland
Union (1915) 1269
Hendon Parish Church (1912) 526
Henneberry v. Doyle (1912) 1944
Henry v. Hammond (1913) 853-855
Henty & Gardners, Lim . v. Beckett
(1914) 502
Herbert v. Fox & Co. (1915) 1931
V. Herbert (1912) 1088
Herd v. Weardale Steel. Coal, and Coke
Co. (1914) 945
Herman, In re: Pharaoh & Co., ex parte
(1915) 98, 101
Hero, The (1911) 1503
Heron v. Lord Advocate (1914) 467
Herron v. Martin (1911) 817
Hertslet's Case; Sly, Spink & Co., In re
(1912) 245
Hession v. Jones (1914) 44, 397
Hewett V. Hattersley (1912) 1000
Hewett's Settlement, In re; Hewett v.
Eldridge (1915) 1116
Hewitt V. Inland Revenue Commissioners
(1914) 1306
V. Stanley (1913) 1914
V. Wilson (1915) 1539
Hewitt's Settlements, In re; Hewitt v.
Hewitt (1915) 738, 1657
Hewson v. Shelley (1914) 570,1769
Heyne v. Fischel & Co. (1914) 561
Hickey, In re; Hickey v. Hickey (1913) 1819
Hickman v. Kent {or Romney Marsh)
Sheep Breeders' Association (1915) 48, 234
V. Roberts (1913) 1888
Hickton V. Hodgson (1914) 803
Higgins V. Beauchamp (1914) 1089, 1090
V. Poulson (1912) 2003
V. Richards (1912) 326
Higginson v. Blackwell Colliery Co.
(1913) 1014
V. (1915) 390
Higgs & Hill, Lim. v. Stepney Borough
Council (1914) 993
, — V. Unicume (1913) 2020
Highland District Committee of Perth
County Council v. Rattray (1913) 1753
Highland Loch, The (1912) 1480
Hildesheira, In re (1914) 1559, 15(i0
Hill, In re; Fettes v. Hill (1914) 1646
V. Beckett (1915) 703
V. Black (1914) 308
TABLE OF CASES.
COL.
Hill V. Gregory (1912) 1296
• V. Inland Revenue (1912) 1300
, Lim. V. Lane (1914) 148,558
. V. Mathie; Whitfield, In re (1911) 664
V. Phoenix Veterinary Supplies,
Lim. (1911) 918
Hills, In re; Lang, e.x parte (1912) Ill
V. Hills (1915) 653
Hilo Manufacturing Co. v. Willianason
(1912) 295
Hinde v. Power (1913) 1185
Hirachand Punamcliand v. Temple (1911) 2
Hitchings & Coulthurst Co. v. Northern
Leather Co. of America (1914) ... 139, 563
Hoare v. British Columbia Development
Association (1913) 266
V. Hove Bungalows (1912) 568
V. Kingsbary Drban Council (1912) 870
Hobson, In re; Barwick v. Holt (1912) ... 1832
V. Leng & Co. (1914) 378
Hockley v. West London Timber &
Joinery Co. (1914) 1954
Hodge V. Matlock Bath Urban Council
(1911) 871
Hodgson, In re; Weston v. Hodgson
(1912j 1146
V. Macpherson (1913) 618, 619
• V. Bobbins, Hay, Waters & Hay
(1914) 1963
Hodgson's Settled Estates, In re; Alta-
mont (Countess) v. Forsyth (1912) 1403
Hoggart's Settlement, In re (1912) 15-56
Holborn & Frascati, Lim., Ex parte
(1914) 765
Holland, In re; Holland v. Clapton
(1914) 1152
V. Peacock (1912) 802, 1135
Holland Gulf Stoomvaart Maatschappij
V. Watson, Munro & Co. (1915) 1428
Holliday & Greenwood, Lim. v. District
Surveyors' Association (1914) 993
Hollidge i;. Ruislip-Northwood Urban
Council (1913) 802
Hollinshead v. Egan, Lim. (1914) 106
V. Hazelton (1915) 67
Hollis, In re ; Lawrence, ex parte (1915) 88
Holloway v. Crow (1911) 1376
Holme V. Fieldsend (1911) 1047
Holmes v. Pipers, Lim. (1913) 1619
Holtam, In the estate of (1913) 1763
Hoi well Iron Co. v. Midland Railway
(1911) 1251
Holywood Urban Council v. Grainger
(1913) 895
Home and Foreign Investment and
Agencv Co., In re (1911) 296, 298
Homer v. Gough (1912) 2006
Homing Pigeon Publishing Co. v. Racing
Pigeon Publishing Co. (1913) 498
Hong-Kong and China Gas Co. v. Glen
(1914) 295
Hooley, In re; Trustee, ex parte (1915) ... 110
V. Butterley Colliery Co. (1915) 1013
Hope, In re; Tarleton v. Hope (1911) ... 1402
V. Cowan (1913) 810
V. Devaney (1914) 685
V. Glendinning (1911) 1200, 1577
V. Hope (1915) 662
I'. Osborne (1913) 222
Hopkins v. Collier (1913) 1162
V. Hopkins (1914) 659
cou.
Hopkinson v. Richardson (1913) ... 359, 1088
Hopper Barge "W. H. No. 1 " and The
Knight Errant (1911) 1489
Hopper V. St. John's College, Cambridge
(1915) 524
Hordern v. Hordern (1911) 1093
Horlick's Malted Milk Co. v. Summerskill
(1915) 1604
Horn V. Admiralty Commissioners (1911)
1955, 1956
V. Beard (1912) 814
Hornchurch Union v. London, Tilbury,
and Southend Railway (1912) 1268
Horridge v. Makinson '(1915) 1739, 1756
Horsfall, In re; Hudleston v. Crofton
(1911) 486, 1147
Horst Martini, The (1915) 1710
Horton v. Mead (1913) 1662
Horwich v. Symond (1915) 108
Hosegood V. Wilson (1911) 2025
Hosking, In re; Hosking, ex parte (1912) 127
Houghton, In re; Houghton v. Houghton
(1915) 748, 1780
V. Fear (1913) 183, 1573
V. Pilkington (1912) 977
House Property and Investment Co.,
In re (1912) .." 242
V. Grice (1911) ... 997
House Property Co. v. London County
and Westminster Bank (1915) 141
House Property Co. of London v. White-
man (1913) 377, 393
Howard v. Miller (1915) 200
Howard Street Congregational Chapel
(Sheffield), In re (1913) 530
Howarth v. Knowles (1913) 1956
V. Pioneer Life Assurance Co. (1912) 695
V. Samuelson (1911) 2013
Howden v. Powell Duffryn Steam Coal
Co. (1912) 48, 1888
Howe V. Botwood (1913) 820
V. Fernhill Collieries (1912) 1927
Howell, In re (1915) 96
, In re ; Buckingham, In re ; Liggins,
V. Buckingham (1915) 1787
V. Bradford (1911) 2007
V. Dering (1914) 375
Howley Park Coal Co. v. London and
North- Western Railway (1912) ... 522, 1007
Hoyles, In re; Row v. Jagg (No. 1)
(1911) 176, 741
, In re; v. (No. 2) (1911)
1649, 1652
Hubbard v. Woodfield (1913) 689
Hudson, In re; Spencer v. Turner (1911) 1327
V. Fulford (1913) 527
Hudsons, Lim. v. De Halfort (1913) ... 392
Hughes, In re ; Ellis v. Hughes (1913) ... 831
V. Bett (1915) 1906
V. Dublin United Tramways Co.
(1911) 1178
V. Hughes (1915) 652
V. Liverpool Victoria Legal Friendly
Society (1915) 697
V. Oxenham (1912) 1164, 1185
V. Robertson (1913) 979
Hughes & Co., In re (1911) 1095
Huish V. Liverpool Justices (1914) ... 182, 800
Hull Corporation v. North-Eastern Rail-
way (1915) 895
Hulse V. Hulse (1911) 663
TABLE OF CASES.
COl..
Huniber Conservancy Board v. Bates
(1914) 1283
Hume, In re; Public Trustee v. Mabey
(1912) 1114, 1116
Hume Nisbet's Settlement, In re (1911) 1587
Humphrey v. Peare (1913) 1281
1-. Tudgav (1915) 779
Humphreys. Iii re; Wren v. Ward (1915) 1824
Hunter r". Brown & Co. (1912) 1971
V. Coleman (1914) 60
V. Inland Reyenue Commissioners
(1914) 1306
Huntinjr v. Matthews (1913) 183
Huntley v. Backworth Collieries (1911) 502
Huntsman. The (1911) 1502
Hurlbatt. In re; Hurlbatt v. Hurlbatt
(1911) 4
Hurlock V. Shinn (1912) 708, 712
Hurlstone r. London Electric Railway
(1914) 1073
Hurst & Middleton, In re (1912) ... 1556, 1568
Hurst V. Picture Theatres, Lim. (1914)
849, 1597
Huscroft V. Bennett (1914) 1945
Hussey v. Hussey (1913) 640
Hutchins r. London County Council
(1915) 1634
V. Royal Exchange Assurance
(1911) 1.5.35
Hutchinson & Sons, Lim., In re; Thorn-
ton V. The Company (1915) 283
Hutchinson's Trusts.' In re (1914) 167
Huth f. Huth (1915) 490
Hutlev V. Peacock (1913) 143, 679
Huxley v. Wootton (1912) 680
Hyanis v. Coombes (1912) 611
Hyde Park Place Charity, In re (1911) 172
Hydraulic Power and Smelting Co., In
re (1914) 242
Hyman v. Rose (1912) 818
Ibrahim v. Regem (1914) 212, 220, 442
Idroos Lebbe Azeez v. Mohamed Ismail
Mudliyar (1912) 209
Imperial Paper Mills of Canada v.
(Quebec Bank (1914) 191, 1039
Imperial Tobacco Co.'s Trade Marks, In
re (1915) 1618
Imprisoned Debtors' Discharge Society,
In re (1912) 176
Income Tax Commissioners; Rex v.
Essex Hall, Ex parte (1911) 1276
Ind, Coope & Co., In re; Fisher v. The
Company (1911) 261, 1042
Independent Newspapers, Lim. v. Great
Northern Railway (Ireland) (1913) ... 1230
Ing V. Higgs (1914) 1962
Ingle f. Mannheim Continental Insurance
Co. (1914) 8, 1585
Ingrain & Royle, Lim. v. Services Mari-
times du Treport (No. 1) (1914) 1445, 1466
(No. 2) '(1914) .." 378
Inland Revenue v. Edinburgh Juridical
Society (1914) 1276
V. Miller (1915) 1309
V. Shiel's Trustees (1915) ... 1284
Inland Revenue Commissioners v. Angle-
sey (Marquess) (1913) 1311
V. Brooks (1915) 1299
V. Buchanan (1914) 1307, 1309
Inland Revenue Commissioners v. Cam-
den (Marquis) (1915) 1313
V. Clay (1914) .... 1807, 1309
V. Derby (Earl) (1914)... 1311
V. Devonshire (Duke)
(1914) ; 1314
V. Fitzwilliam (1913) ... 1313
r. Gribble (1913) 1313
r. Herbert (191.3) 1305
V. Hewett (1914) 1306
V. Hunter (1914) 1308
V. Joicey (No. 1) (1913) 1318
V. (No. 2) (1913) 1318
V. St. John's College,
Oxford (1915) 1312
V. Smyth (1914) 1304
V. Southend-on-Sea Es-
tates Co. (1915) 1314
V. Sheffield and South
Yorkshire Navigation Co. (1915) 1309
r. Truman, Hanbury,
Buxton & Co. (191.3) 750
V. Walker (1915) 1306
r. Whidborne's Execu-
tors (1915) 1308
Inman, In re; Inman v. Inman (1914) 1588
International Correspondence Schools v.
Ayres (1912) 353
V. Irving (1915) 480
International Sponge Importers v. Watt
(1911) 1202
lolo, The (191.5) 1706
Irish Agricultural Wholesale Society v.
McCowan (1913) 503
Irish Provident Assurance Co., In re
(1913) 254, 258, 259, 1654
Irish Society v. Fleming (1911) 593
V. Harold (1912) 593
Irving V. Burns (191.5) 1210, 1212
Irwin V. Waterloo Taxicab Co. (1912) ... 975
Ivey V. Ivey (1912) 2014
J. (an infant). In re (1913) ...: 681
Jackling v. Carter (1912) 915
Jackson, In re (1915) 44, 1557
V. Denton Collieries Co. (1914) 1929
V. Hunslet Engine Co. (1915) 2002
V. Knutsford Urban Council (1914) 894
V. London County Council (1912) ... 1069
V. Mahon (1911) 540
V. Mulliner Motor Body Co. (1911) 966
V. Rotex Motor and Cycle Co. (1911) 1358
V. Scotstoun Estate Co. (1911) 1979
V. Yeats (1912) 573
Jadu Lai Sahu v. Maharani Janki Koer
(1912) 675
Jager v. Tolme (1915) 1364
Jamal v. Moolla, Dawood, Sons & Co.
(1915) 477
James, In re; James v. Jones (1912) ... 581
V. Mordev, Carney & Co. (1913)
1977, 1994
V. Rockwood Colliery Co. (1912) ... 247
V. Tudor (1913) 884
Jameson v. Union Bank of Scotland
(1914) 84
Jamshed Khodarain Irani v. Burjorji
Dhunjibhai (1915) 1570
Jane, In re; Trustee, ex parte (1914) ... 1093
Janson v. Poole (1915) 1525
TABLE OF CASES.
CO I,.
Janson v. Property Insurance Co. (1913) 1158
Jarrott v. Ackerley (1915) 812, 1159
Jarvis v. Hammings (No. 1) (1912j 815
V. (No. 2) (1912J 1184
Jay's Furnishing Co. v. Brand & Co.
(1915) 512
Jeffery, In re; Nussey f. Jeffery (1913)... 1777
Jefferson r. Paskell (1915) ....'. 634
Jeffreys v. Jeffreys (1912) r355
Jenkins, In re; Williams r. Jenkins
(1915) 45, 324
V. Great Central Railway (1911)
1232, 1573
V. Great Western Railway (1912) 1057
V. Standard Colliery (1911) 1926
V. Thomas (1911) ..' 954
Jenner v. South-Eastern Railway (1911) 1U55
Jensen c. Wilson (1912) " 591
Jevons V. Public Trustee (1915) 1819
Jibb V. Chadwick (1915) 1922
Jinks, In re; Trustee, ex parte (1914)
2004, 2011
V. Jinks (1911) 656
John Deere Plow Co. v. Wharton (1914)
191, 199
Johnson, In re ; Cowley v. Public Trustee
(1915) ■ 1394
, In re; Ellis, ex parte (1914) 116
, In re; Johnson v. Johnson (1914)
1391, 1411
, In re; Pitt v. Johnson (1914) 1119
V. Newton Fire Extinguisher Co.
(1913) 2010
V. Rees (1915) 145
V. Refuge Assurance Co. (1912) ... 40
V. Wootton (1911) 19(i5
Johnson's Settled Estates, In re (1913) 1400
Johnston, In re ; Mills v. Johnston (1912) 1658
V. Chestergate Hat Manufacturing
Co. (1915) 255, 257
V. Lalonde (1912) 963
V. McKenzie (1911) 1565
V. O'Neill (1911) 590
V. Saxon Queen Steamship Co.
(1913) 1427
Johnston's Trustees v. Glasgow Corpora-
tion (1912) 893
Johnstone v. Lochgelly Magistrates
(1913) 1070
Joicey, In re; Joicey v. Elliot (1915) ... 1151
Joint Stock Trust and Finance Corpora-
tion, In re (1912) 489
Jolly V. Brown (1913) 818
Jones, In re; Goatly, ex parte (1911) ... 120
, In re; Last v. Dobson (1915) 1778
, In re ; Newnes and Associated
Newspapers, ex parte (1912) 96
, In re; Peak v. Jones (1914) 575
, In re; Williams v. Att.-Gen. (1912) 1786
V. Anderson (1914) ... 1980, 1992, 2022
V. Canadian Pacific Railway (1913)
193, 962
V. Davies & Sons, Lim. (1914) ... 1978
V. Guest, Keen & Nettlefolds, Lim.
(1915) 1939
V. Jones (No. 1) (1912) 657
V. (No. 2) (1913) 655
V. (1915) 492
: V. Lee (1911) 24, 10(56
V. Llanrwst Urban Council (No. 1)
(1911) 380, 874, 1716
V. (No. 2) (1911) ... 42
Jones V. Mersey Docks and Harbour
Board (1913) 1520
V. Merthyr Tydfil Union (1911) ... 135
V. New Brynmally Colliery Co.
(1912) 1939
V. North Vancouver Land and Im-
provement Co. (1911) 302
V. Pacaya Rubber and Produce Co.
(1911) 295
V. Phoenix Colliery Co. (1912) 1017
V. W^atney, Combe, Reid & Co.
(1912) 1075
V. Winder (1914) 2012
Jones' Settlement, In re; Stunt v. Jones
(1915) 697,1153
Jones and Cardiganshire County Council,
In re (1913) 899
Jordeson & Co. v. London Hardwood Co.
(1914) 1208
Joseph i;. Joseph (1915) 660
V. Law Integrity Insurance Co.
(1912) 730
V. London County Council (1914) ... 831
Josselsohn v. Weiler (1911) 1735
Jowitt V. Union Cold Storage Co. (1913) 75
Juno, The (1915) 1706
Jureidini v. National British and Irisn
Millers' Insurance Co. (1915) 718
Jury V. " Atlanta " S.S. (Owners) (1912) 1997
Kacianoff v. China Traders' Insurance
Co. (1914) 1533
Kaffir Prince, The (1915) 1475
Kaleten, The (1914) 1522
Kali Bakhsh Singh v. Ram Gopal Singh
(1913) 675
Kanawha, The (1913) 1509
Kane v. Merry & Cunninghame (1911) ... 1936
V. Stein & Co., Lim. (1915) 1984
Kanhava Lai v. National Bank of India
(1913) 675
" Karaniea " (Owners) v. " Marie
Gartz " (Owners) (1914) 1508
Karbeg & Co. v. Blythe, Green, Jourdain
& Co. (1915) '. 1350, 1337
Karmali Abdulla Allarakhia t. Vora
Karimji Jiwanji (1915) 1091
Kates V. Jeffery (1914) 802
Katherine, The (1913) 1516
Katwyk, The (1915) 1797
Kauri Timber Co. v. Commissioners of
Taxes (1913) 214, 1290
Kay V. Kay (1913) 660
Kearney v. Kearney (1911) 1796
Keary 'v. Russell, Lim. (1915) 1936
Keates v. Lewis Merthyr Consolidated
Collieries (1911) ". 968
Keeffe v. McMahon (1915) 865
Keen v. Price (1914) 610, 1090
Keevans v. Mundy (1914) 2018
Kedwell & Flint, In re (1911) 835
Keith, '[Am. v. Kirkwood (1914) 963
Kelaghan v. Daly (1913) 1676
Kellcher, In re (1911) 598
Keller, In re; Rose, ex parte (1913) 107
Kelly V. Auchenlea Coal Co. (1911) 1892
V. Enderton (1913) 1193, 1674
V. " Miss Evans " (Owners) (1913) 1952
V. National Society of Operative
Printers' Assistants (1915) 1626
xxu
TABLE OF CASES.
COL.
Kelsey v. Donne (1912) 1175
Kemp V. Lewis (1914) 1942
Kemp Welch v. Kemp Welch (1912) 655
Kendall & Gent v. Pennington (1912) ... 2026
Kennard v. Kennard (1915) 658
Kennedy v. Dixon (1913) 1978
V. Kennedy (1915) 658, 1115
V. Shotts iron Co. (1913) 840
Kennet, The (1912) 1506
Kensington Income Tax Commissioners
V. Aramayo (1915) 1279
Kent V. Fittall (No. 4) (1911) 535, 537
B. (No. 5) (1911) 535
Kent County Council v. London County
Council (1915) 943
Kent County Gas, Light, and Coke Co.,
In re (19i2) 114
K'Eogh t;. K'Eogh (1911) 1814
Kerr (or Lendrum) v. Avr Steam Shipping
Co. (1914) ■; 1916
V. Baird (1911) 1934
Kerr's Estate, In re (1913) 1796
Kerrison v. Glvn, Mills, Currie & Co.
(1911) : 79, 1020
Kershaw v. Paine (1914) 996
V. Smith (1913) 995
Keymer v. Eeddy (1912) 1171
Khoo Sit Hoh p. Lira Thean Tong (1912) 35
Kidner v. Daniels (1911) 1749
Kierson v. Thomson & Sons, Lim. (1913)
1991, 2010
Kilmer v. British Columbia Orchard
Lands, Lim. (1913) 1112,1664
Kim, The (1915) 1700, 1710
Kinahan v. Parrv (1911) 1203
King Alfred. H. M.S. (1914) 1500
King. The (1911) 1497
King V. Brown, Durant & Co. (1913) ... 222
V. Cadogan (1915) 752
V. King (1915) 646, 656
V. Dopson (1911) 328
V. Hay Currie (1911) 1028
V. Phoenix Assurance Co. (1911) ... 2006
King & Duveen, In re (191.3) 57
Kingsland, The (1911) 1456
Kingston, Miller & Co. v. Kingston & Co.
(1912) 1602
Kinnear v. Brander (1914) 712
Kinnell v. Walker (1911) 376
Kipping, In re; Kipping v. Kipping
(1914) 1646
Kirby v. Chessum (1914) 1636
V. Cowderoy (1912) 201
V. Paignton Urban Council (1913)
878, 1732
Kirkpatrick v. Maxwelltown Town Coun-
cil (1912) 891
Kirsopp V. Highton (1911) 602
Kish V. Taylor (1911) (1912) 1435
Kishen Parshad v. Har Narain Singh
(1911) 674
Kitchenham r. " Johannesburg " Steam-
ship (1911) 1917
Kitson, In re; Sugden & Son, Lim., ex
parte (1911) 126
Klawanski v. Premier Petroleum Co.
(1911) 372
Kleinert v. Abbosso Gold Mining Co.
(1913) 1368
Knapp V. Harvey (1911) 507
Knight V. Bucknill (1913) 1941
COL.
Knight V. City of London Brewery Co.
(1912) 760
V. Bucknill (1913) 1941
V. Wilson (1915) 1765
Knillc. Dumergue (1911) 1113
Knollv's Trusts, In re; Saunders v.
Haslam (1912) 1303
Knott V. Strides (1913) 950
Knowles & Sons, Lim., In re (1913) 244
Knox, In re; Von Scheffler v. Shuldham
(1912) 322
Knox & Robb v. Scottish Garden Suburb
Co. (1913) 1881
Koenigs, In the estate of (1914) 1771
Koffyfontein Mines, Lim. v. Mosely
(1912) 238
Konski v. Peet (1915) 348
Korkis v. Weir & Co. (1914) 501
Kreglinger v. New Patagonia Meat and
Cold Storage Co. (19L3) 1036
V. Samuel (1915) 8, 12, 14
Kreglinger & Co. «. Cohen (1915) 1685
Kregor v. Hollins (1913) 340
Kronprinzessin Cecilia, The (1915) 1701
Krzus V. Crow's Nest Pass Coal Co.
(1912) 201
Kuala Pahi Rubber Estates v. Mowbray
(1915) 272
Kuhlirz v. Lambert (1913) 1091
Kwasind, The (1915) 1510
Kyle V. Jewers (1915) 919
" Kynance" Co. v. Young (1911) 1528
Kynoch, Lim. v. Rowlands (1911) 861
L. V. L. (No. 1) (1911) 662
Lacey v. Mowlem & Co. (1914) 1963
Lacon's Settlement, In re; Lacon v.
Lacon (1911) 1400
Ladbroke & Co. v. Todd (1914) 141
Ladenburg v. Goodwin, Ferreira & Co.
(1912) 265
Laing, In re; Laing v. Morrison (1912) 1826
V. PauU & Williamsons (1912) 1068
Lakew. Smith (1912) 1387
Lamb v. Keeping (1914) 382
Lambert v. Great Eastern Railway (1911) 1224
V. Home (1914) 504
V, Rowe (1914) 952
V. Thomas (1911) 1259
V. (1912) 1259
Lamont v. Rodger (1911) 905, 907
Lamson Paragon Supply Co. v. MacPhail
(1914) 339
Lanark County Council v. Motherwell
Magistrates (1913) 876
Lancashire Plate Glass, Fire, and Bur-
glary Insurance Co., Lim., In re (1911) 732
Lancashire and Yorkshire Bank's Lease,
In re; Davis v. Lancashire and York-
shire Bank (1914) 817
Lancashire and Yorkshire Railway v.
Hull and Barnsley Railway Co. (1912) 1242
V. Liverpool Corporation
(1914) 931
Lancaster and Burnley Corporation, In re
(1914) 892
Lancastrian, The (1915) 1519
Landauer v. Craven (1912) 1351
Land Tax Commissioners v. Central Lon-
don Railway (1913) 1301
Lane v. Lusty (1915) 1901
TABLE OF CASES.
XXlll
COL.
Lang V. Lang (1915) 639
Langham Steamship Co. v. Gallagher
(1911) 1457, 1468
Langlaagte Proprietary Co., In re (1912) 290
Lanier v. Regem (1913) 218
Lansbury v. Riley (1913) 790
Lanston Monotype Corporation v. Ander-
son (1911) 1285
Lapointe v. Larin (1911) 207
Larkin v. Long (1915) 1624
Last V. Hucklesby (1914) 334
Latham v. Johnson (1912) 807, 1064
V. Spillers & Bakers, Lim. (1913) ... 911
Laughton v. Port Erin Commissioners
(1911) 871, 1570
Lavelle, In re; Concannon v. Att.-Gen.
(1914) 170
Law V. Baird (1914) 1992
Law (or Harnett & Co.), In re (1914) 1556
Law Car and General Insurance Corpora-
tion, In re (1911) 265
, In re (No. 1)
(1912) 298
, In re (1914) 725
, In re ; King
& Sons, Lim., Claim (No. 2) (1913) 311
Law Guarantee Trust and Accident
Society, In re (No. 1) (1913) 316
— , In re (No. 2)
(1913) 722
, In re ; God-
son's Claim (1915) 270, 723
V. Munich Re-
insurance Co. (1911) 729
(1915) ■ 730
Iiawes-Wittenronge, In re; Maurice v.
Bennett (1915) 1802
Lawley, In re; Jackson v. Leighton
(1912) 577
Lawrence (Lord), In re; Lawrence v.
Lawrence (1914) 1809
Tjawson, In re; Wardley v. Bringloe
(1914) 1787
V. Marlborough Guardians (1912) ... 1130
Lawton's Petition, In re (1912) 651
Laye, In re; Turnbull v. Laye (1913) 325
Layard, In re; Layard v. Bessborough
(1915) J779
Layland v. Boldy (1913) 1096
Lazarus v. Cairn Line (1912) 354
Lea, In re; Wells v. Holt (1911) 1798
Lea's Trade Mark, In re (1913) 1609
Leach, In re; Leach v. Leach (1912) ... 1806
V. Director of Public Prosecutions
(1911) 450
V. Royal Mail Steam Packet Co.
(1911) 1468
Loader, Plunkett & Leader v. Disconto
Gesellschaft (1914) 1164
Ij(!ader v. Disconto Gesellschaft (1915) 18
licaf V. Furze (1914) 1940, 1955
Learoyd (or Dick) v. Alston's Trustees
(1913) 1551
Leaver v. Pontypridd Urban Council
(1912) 1058
Leavett v. Clark (1915) 411
Lecky v. Walter (1914) 597
Lecture League, Lim. v. London County
Council (1913) 999
Ledbury Rural Council v. Colwall Park
Quarries Co. (1913) 1753
COL.
Ledbury Rural Council r. Somerset (1915) 1750
Lee V. Aykroyd (1915) 780
V. "Bessie" (Owner) (1911) 1950
V. Stage Line (1912) 1915
V. Taylor (1913) 768
V. Wallocks (1914) 953
Leeds and Liverpool Canal tJ. Wigan
Union (1913) 1263
Leeke v. Portsmouth Corporation (No. 1)
(1912) .507
V. (No. 2) (1912) 149
Leek Urban Council v. North Stafford-
shire Railway (1913) 1233
Leeming, In re; Turner v. Leeming
(1912) 1823
Lees V. Dunkerley (1911) 2030
V. Lovie (1912) 779
Lee's Trustees v. Dun (1913) 1385
Leete & Sons, Lim. v. Disconto Gesell-
schaft (1915) 79
Leetham v. Rank (1912) 498
Lefroy v. Egmont (1912) 1321, 1401
Le Gros, Ex parte (1914) 625
Leicester Guardians v. Trollope (1911)
871, 1881
Leigh V. Pantin (1914) 1656
Leigh- White v. Ruttledge (1914) 1406
Leith Docks Commissioners v. Leith
Magistrates (1911) 149, 1267
Leith Magistrates v. Bertram (1915) ... 921
Lemm v. Mitchell (1912) 555, 1578
Lemy v. Watson (1915) 1619
Lendrum ior Kerr) v. Ayr Steam Ship-
ping Co. (1914) 1918, 2010
Leng & Co. v. Mackintosh (1914) 617
Lennard's Carrying Co. v. Asiatic Petro-
leum Co. (1915) 1466
Leonard v. Hoare & Co. (1914) 885
Leon Blum, The (1914) 1474
Le Page v. Gardom (1915) 1639
Leslie v. Leslie (1911) 649
Leslie, Lim. v. Reliable Advertising and
Addressing Agency (1915) 478
, V. Shiell (1914) 679
Leslie & Co. v. Works Commissioners
(1914) 350
Leslie's Hassop Estates, In re (1911) ... 1657
L 'Estrange v. Winniett (1911) 1139
Levesley, In re ; Goodwin v. Levesley
(1915) 860
Lever v. Masbro' Equitable Pioneers'
Society (No. 1) (1912) 1603
V. (No. 2) (1912) 383
Levine v. Sterling (No. 1) (1914) 207
V. (No. 2) (19141 220
Levy V. Johnson (1913) 371
Lewis V. Davies (1914) 511, 816
V. Harris (1913) 443
V. Lewis (1912) 654
V. Meredith (1913) 1714
V. Mills (1914) 1029
V. Port of London Aluthority (1914)
1896, 1912
Lewis & Allenbury v. Pegge (1913) 825
Lewisham Corporation v. Avery (1912) 1258
Leworthy v. Rees (1913) 605
Librace, Lim. v. Shaw, Walker, Lim.
(1913) 3(i2
Tviebraml, Ex parte (1914) 327
Lightfoot V. Mayberv (1914) 1786
Lillv V. Tilling (1912) 1060
TABLE OF CASES.
COL.
liimond, In re: Limonrl v. Cunliffe
(1915) 1764
Linaria, The (1915) 1705
Lind, In re; Industrials Finance Syndi-
cate V. Lind (1915) ". 1045
Linder & Co., In re (1911) 244
Lindrea, In re; Lindrea v. Fletcher
(1913) 352
Lindsay v. Dempster (1913) 912
v'. Klein (1911) 1471
Lindsay's Trustees, In re (1911) 4
Lindstroem Application, In re (1914) ... 1608
L'Industrie Verriere, Lira., In re (1914) 305
Lingke v. Christchurch Corporation
(1912) 937
Linlithgow (Marquis) v. North Britisli
Railway (1913) 1004
(— — ) V. (1914)
1004, 1714
Lipman v. Lipnian (1915) 641
Lisle & Co. v. Works Commissioners
(1914) 350
Lister's Judicial Factor v. Syme (1914) 738
Liston V. " Carpatliian " (Owners)
(1915) 1422
Lithfield, In re; Horton v. Jones (1911) 1809
Lithographic Artists, In re; Engravers,
In re (1913) 702
Liverpool and London and Globe Insur-
ance Co. V. Bennett (1913) 1279
Liverpool Compensation Authority v.
Inland Revenue Commissioners (1913) 760
Liverpool Corporation v. Chorley Assess-
ment Committee (1913) '. 1263
Liverpool Society for Prevention of
Cruelty to Children v. Jones (1914) ... 684
Llanelly, The (1913) 1497, 1505
Llewellyn, In re; Llewellyn v. Llewellyn
(1911) 1390
V. Kasintoe Rubber Estates (1914) 289
Ijloyd V. Bermondsey Guardians (1912) 1128
V. Coote & Ball (1915) 856, 1550
^. Grace, Smith & Co. (1912) 1205
V. Midland Railway (1914) 1997
V. Powell Duffryn Steam Coal Co.
(1913) .' 2001
■ V. (1914)
560, 1952
V. Ross (1913) 1748
V. Shrewsbury (Town Clerk) (1914) 545
Lloyd's Estate, In re; Waters v. Lloyd
(1911) 863
Lloyds Bank v. Colston (1912) 1050
V. Swiss Bankverein (1913)
83, 1076, 1091
Ijloyds Bank & Lillington, In re (1912) ... 1667
Lloyds & Dawson Brothers v. Lloyds,
Southampton (1912) 1602
Tjocal Government Board v. Arlidge
(1914) 893
Ijochgelly Iron and Coal Co. v. Inland
Revenue (1913) 1288
Lock V. Array, Navy, and General Assur-
ance Alssociation ' (1915) 50, 699
Tjocke it Smith, Lim., In re; Wigan v.
The Company (1914) 264, 273
Lockwood V. Chartered Institute of
Patent Agents (1913) 1108
Lodge's Patent, In re (1911) 1103
Lofthouse Colliery v. Ogden (1913)
1019, 1160
COL.
Logan V. Davis (1911) 248
Loke Yew v. Port Swettenham Rubber
Co. (1913) 213
London, H.M.S. (1914) 1484
London (Bishop) v. Mliiteley (1911) 162
London Corporation v. Associated News-
papers, Lim. (No. 1) (1915) 1271
V. Horner (1914) 1189
London & Counties Assets Co. v.
Brighton Grand Concert Hall and
Picture Palace (1915) 248
London County Council v. Allen (1912) 1336
-' V. (1914) 1673
V. Bermondsey Bioscope
Co. (1911) ; 179
V. Bermondsey Borough
Council (1915) 984
V. Cannon Brewery Co.
(1911) 991
V. Clark (1912) 991
V. Clode (1915) 988
V. Fairbank (1911) 1336
V. Great Eastern Rail-
way (1911) 1255
V. Hall of Arts and
Sciences Coi-poration (1913) 991
V. Hankins (1914) 1000
V. Houndle (1911) 1337
V. Hughes (1911) 1735
V. Islington Assessment
Committee (1915) 1002
V. Jones (1912) 994
V. Kirk (1912) 1333
V. Lee (1914) 1742
V. Leyson (1914) 967
V. Perry (1915) 1336
V. Port of London Autho-
rity (1914) 984
' V. St. Botolph Without
Bishopsgate, Churchwardens (1914) ... .528
V. Shoreditch Borough
Council (1911) 1002
V. Turner (1911) 1744
V. Welford's Surrey
Dairies (1913) .". 973
London Electric Supply Corporation v.
Westminster Electric Supply Corpora-
tion (1913) 549
London Furnishing Co. r. Solomon
(1912) 512
London General Omnibus Co. v. Hollo-
way (1912) 1213
London. Gloucestershire, and North
Hants Dairy Co. v. Morley (1911) ... 990
London Joint-Stock Bank v. British
Amsterdam Maritime Agency (19111 ... 1449
London and Manchester Plate Glass
Insurance Co. v. Heath (1913) 726
London and Northern Estates v.
Schlesinger (1915) 11
London and Northern Steamship Co. v.
Central Argentine Railway (1913) 1458
V. Farmer (1914) 294
London and North-Western Railway v.
Beeslv (1913) 753
': V. Duerdin (1915)... 385, 1248
V. Jones (1915) 1249
V. Societv of Motor
Manufacturers (1911) .". 1236
V. South - Eastern Rail-
way (1911) 1253
TABLE OF CASES.
COl..
London and North- Western Eailway v.
Thrapston Union (1912) 1265
London and Provinces Discount Co. r.
Jones (1913) 14fi
London Quarter Sessions v. London
County Council (No. 1) (1911) 805
V. (No.
2) (1911) 80(5
London and South- Western Canal Co.,
In re (1911) 243
London Theatre of Varieties v. Evans
(1914) 1597
London, Tilbury, and Southend Railway
V. Paterson (1913) .". 1055
London Traders Shipping Co. v. General
Mercantile Shipping Co. (1914) 14(M
London and Westminster Loan and Dis-
count Co. V. Bilton (1911) 1660
Long, In re; Medlicott v. Long (1915) 33
V. Gray (1913) 1672
Long Eaton Urban Council v. Att.-Gen.
(1915) 546
Longfield Parish Council v. Robson
(1913) 1197
Long Sutton, In the goods of (1912) ... 1770
Longton v. Winwick Ateylum Committee
(1911) 1716
Loraine v. Loraine (1913) 648
Lord Advocate v. Huron and Erie Loan
and Savings Co. (1911) 229
11. Hetherington 11915) 1691
r. Innes (1915) 1691
V. Montgomery's Trustees
(1914) .' 1324
V. Nicol (1915) 772, 773
V. Walker Trustees (1911)
1383, 1573
Love V. Amalgamated Society of Litho-
graphic Printers (1912) ...." 1623
Lovell & Christmas v. Wall (1911) 349
Lowery v. Walker (1911) 21. 390
Lowther v. Times Cold Storage Co.
(1911) 388
Luby V. Warwickshire Miners' Associa-
tion (1912) 1627
Lucan v. Barrett (1915) 787
Luckie v. Merry (1915) 1967
Luckwill r. Auchen Steamship Co.
(1913) 1953
Lucy r. Bawden (1914) 838
Lumsden v. Inland Revenue Commis-
sioners (1914) 1305, 1306
Lupton, In re ; Bankrupt, ex parte (1911) 109
, In re; Lupton, ex parte (1911) ... 91
Lurcott r. Wakelev (1911) 821
Lnsh & Co., In re "(1913) 267
Lyell V. Hothfield (Lord) (1914) ... 221. 522
Lyons v. Gulliver (1914) 1736
V. O'Brien (1911) 75
Lyons & Co. v. Houghton (1915) 76
Lyric Theatre v. L. T., Lim. (1914) 38. 1191
Lysons, In re; Beck r. Lysons (1912) ... 1826
Maas V. Gas, Liglit and Coke Co. (1911i •50(;
Macalister v. Steedinan (1911) 374
Macandrew v. Gilhoolev (1911) 1968
McArdle r. Kane (191.5) 384
V. Swansea Harbour Trust (1915) 1900
McBean, Ex parte (1911) 948
McCabe v. North (1913) 192
€01..
McCallum v. Doughty il915( 1619
M'Cartan v. Belfast Harbour Commis-
sioners (1911) 961
McCarthy v. Capital and Counties Bank
(1911) 373
McCaughey v. Stringer (1914) 1183
McClelland v. Manchester Corporation
(1911) 1755
Macclesfield Corporation v. Great Central
Railway (1911) 1754
M'Conneil & Reid v. Smith (1911) 49
McCord V. "City of Liverpool" (Owners)
(1914) .". 1949
McCormick, In re; Hazlewood v. Foot
(1915) 1121
M'Daid v. Steel (1911) 1933
MacDermott's Estates, In re (1912) ... 382
McDermott v. " Tintoretto " Steamship
(1911) 1991
M'Diarmid v. Ogilvie (1913) 1928
Macdonald. Deakin & Jones, In re;
Trustee, ex parte (1914) 129
Macdonald r. Macbrayne, Lim. (1915)
479, 1063
V. Wilsons and Clyde Coal Co.
(1912) .' 1979, 2017
Macdonald 's Case; Sly, Spink & Co.
(1912) ; .' 245
M'Dougall V. M'Dougall (1911) 1941
McEacharn, In re; Gambles v. Mc-
Eacharn (1911) 1642
McEneaney v. Shevlin (1912) 79
McEuen, In re; McEuen v. Phelps
(1913) 583
McEwan & Co., In re (1912) 1609
McFarland v. Bank of Montreal (1911) 204
Macfarlane v. Shaw (Glasgow), Lim.
(1915) 1903
Macfarlane, Strang & Co., In re (1915) 231
M'Feetridge v. Stewarts & Jjloyds
(1913) 743, 2007
McGeehen v. Knox (1913) 785
M'Ghee r. Summerlee Iron Co. (1911) 2022
MacGillivray v. Northern Counties Blind
Institute "(1911) 1942
M'Ginn v. Udston Coal Co. (1912) 1981
M'Ginty r. Kyle (1911) 19.51. 1968
McGlade t\ Royal London Mutual Insur-
ance Society' (1911) 600
McGlynn, In" re (1913) 1128
M'Gowan v. Citv of Glasgow- Friendly
Society (1913)"' 603
V. Merry & Cunninghainc (1915) ... 1938
M'Gown V. Henderson (1914) 1094
MacGregor v. Clamp (1913) 1344
McGregor v. Telford (1915) 134
M'Guire r. Paterson it Co. (1913i
1986, 1990
M'Guirk, In the goods of (1912) 1770
McHugh r. I'liion Bank of Canada
(19131 191, 203
Mcllwaine r. Stewart's Trustees ll914) 839
Mclnaily v. Blackledge (1911) 396
Macintyre v. Smith (1913) .57
McTntyre r. Mclntce (1915) (^I",
V. Wilson (1915) 890
M'Intvre v. Morton (1912) 1661
V. Persichini (1914) 894
Mackay, In re (1915i 107
, In re; Griessemann r. Carr (1911) 1652
V. Rosie (1911) 2011
XXVI
TABLE OF CASES.
COL.
McKenna v. McCarten (1915) 1813
McKenzie v. Chilliwack Corporation
(1912) 1072
Mackenzie. In re ; Mackenzie v. Edwards
Moss (1911) 737, 741
r. Johnstone (1912) 1384
McKerrell, In re; McKerrell v. Gowans
(1913) 698
Mackie v. Fox (1911) 603
Mackinlay, In re; Scrimgeour v. Mac-
kinlay (1912) 1810
McKinnon v. Hutchinson (1915) 1915
Mackinnon v. North's Navigation Col-
lieries (1913) 1018
Mackinnon 's Trustee v. Bank of Scotland
(1915) 82
Maclaren v. Att.-Gen. for Quebec (1914) 498
M'Laren v. Caledonian Railway (1911) 1932
McLaren v. Public Trustee; Robinson,
In re (1911) 854
M-Lauchlan v. Anderson (1911) 1910
V. Hogarth (1911) 1953
— V. Renton (1911) 618
McLaughlin v. Pumpherston Oil Co.
(1915) 1988
M'Lean v. Allan Line Steamship Co.
(1912) 1985
V. Johnston (1913) 606
Macleod v. Edinburgh and District Tram-
ways Co. (1913) 1059
McLoughlin v. Warrington Corporation
(1911) 1070
M-Luckie v. Watson, Lim. (1913) 1895
.\rcMahon, In re; Wells v. Tyrer (1911) 1829
MacMahon v. Hastings (1913) 680
V. MacMahon (1913) 663
M'Millan v. Singer Sewing Machine Co.
(1913) 1894
McNair v. Terroni (1914) 904
.McNallv V. Furness, Withy & Co. (1913)
1946, 1969
Macnamara, In re; Hewitt r. Jeans
(1911) 167, 321
M'Neice v. Singer Sewing Machine Co.
(1911) 1907
MacPhail v. Jones (1914) 792
M'Phee's Trustees v. M'Phee (1912) ... 165
Macpherson v. Inland Revenue (1913) ... 1277
McPherson v. Temiskaming Lumber Co.
(1912) 205, 207
M'Quater v. Fergusson (1911) 834
McQuiban v. McQuiban (1913) 636, 663
M'Robert v. Reid (1914) 1217
McTaggart v. Barr (1915) 1938
Mactavish's Judicial Factor v. Michael's
Trustees (1912) 138
M'Vie V. Tavlor & Co. (1914) 1987
McVittie r. Turner (1915) 181
M' Williams v. Great North of Scotland
Railway (1914) 1932
Madden v. Guest's Executors (1915) .... 1984
Magneta Time Co., In re; Molden v.
The Company (1915) 1047
Magnus, In re; Salaman, ex parte (1911) 106
Magrath, In re: Histed v. Belfast Uni-
versity (1913) 159
Maguire v. Quinn (1911) 617
Mah Nhin Bwin v. U Schwe Gone (1914) 672
Mahomed Jan v. Ganga Bishun Singh
(1911) 1109
Maidlow v. Maidlow (1914) 650
COL.
Mair v. Rio Grande Rubber Estates
(1913) 236
Maisel v. Financial Times, Lim. (No. 1)
(1915) 498
V. , (No. 2) (1915) ... 498
Major, In re; Taylor v. Major (1914)... 1827
V. South Kirkby, Featherstone, and
Hemsworth Collieries (1913) 1973
Malcolm v. Spowart & Co. (1913) 2025
Mallam v. Rose (1915) 521
Mallinder v. Moores & Son, Lim. (1912) 2032
Mailing Abbev Trusts, In re ; Beaumont
V. Dale (1915) 1642
Malone v. Belfast Banking Co. (1912) ... 1205
Malzy V. Eicholz (1915) 832
Manchester (Duchess), In re; Ducannon
(Viscount) 15. Manchester (Duke) (1912) 1322
Manchester Ship Canal Co. v. Horlock
(1914) 1418
V. London and
North-Western Railway (1911) 1241
Manks v. Whiteley (1913) 36
Manley v. Berkett (1912) 71,1388
Mann, In re; Ford v. Ward (1912) 1799
Manningtry, The (1915) 1704
Manson v. Forth and Clyde Steamship
Co. (1913) 1920
Manu Kapua v. Para Haimona (1913) ... 216
Maples V. Inland Revenue Commissioners
(1914) 1339,1341
Mapleson v. Sears (1911) 351, 1595
Marconi v. British Radio-Telegraph and
Telephone Co. (1911) 1099
V. Helsbv Wireless Telegraph Co.
(1914) ' 1100
Marcovitch v. Liverpool Victoria Friendly
Society (1912) 694
Marcus v. Crook (1914) 916
Marechal Suchet, The (1911) 1472
Margate Corporation v. Pettman (1912) 1265
Margerison v. Wilson (1914) 972
Marie Gartz, The (1913) 1508
Marie Glaeser, The (1914) 1694, 1697
Mariette, In re; Mariette v. Aldenham
School (1915) 171
Marigold v. Marigold (1911) 634
Markt v. Knight Steamships Co. (1911) 1159
Marlay, In re; Rutland (Duke) v. Bury
(1915) 359
Marmion, The (1913) 1504
Marriage Legislation in Canada, In re
(1912) 193
Marron v. Cootehill Rural Council (1915) 782
Marsden & Sons, Lim. v. Old Silkstone
Collieries (1915) 688
Marshall, In re; Marshall v. Marshall
(1914) 1644
V. Brinsmead & Sons (1912) 353
V. Price, Wills & Reeves (1914) .... 2003
V. Prince (1914) 2028
V. Skett (1913) 905
V. Spicer (1911) 753
I,. *• Wild Rose " Steamship (1911) 1916
Marshall & Murray v. Jones (1913) 348
Marshall, Sons & Co. v. Prince (1914) ... 2028
Martin, In re; Dixon, ex parte (1912) 123, 1679
V. Great Eastern Railway (1912)... 1228
V. Lovibond & Sons, Lini. (1914)... 1908
V. Manchester Corporation (1912).. 1911
I,. White (1911) 1746
TABLE OF CASES.
COL.
Martineaus v. Royal Mail Steam Packet
Co. (1912) 1441.1448
Marylebone Assessment Committee v.
Consolidated London Properties, Lim.
(1914) 1001
Marylebone Borough Council v. White
(1912) 997
Maryon-Wilson's Estates, In re (1912)... If54(j
Maryon-Wilson's Settled Estates, In re;
Maryon- Wilson v. Du Cane (1915) ... 1398
Mash V. Darley (1913) 135
V. (1914) 456
Maskell v. Horner (1915) 1021
Mason v. Bolton's Library (1912) 90
V. Provident Clothing and Supply
Co., Lira. (1913) .342
Masters v. Hampshire County Council
(1915) 1757
Master's Settlement, In re (1911) 1409
Master Tailors as Outworkers, In re
(1913) 702
Mathers v. Penfold (1914) 1661
Mathew v. " Times " Publishing Co.
(1913) 491
Matsoukis v. Priestman & Co. (1915) ... 1360
Matsuda v. Waldorf Hotel Co. (1911) ... 691
Matthews v. Inland Revenue Commis-
sioners (1914) 1303
- V. Matthews (1912) 660
V. Ruggles Brise (1911) 1650
Maw V. Holloway (1914) 593
Mawson Shipping Co. v. Berger (1914) 1454
Marxey Drainage Board v. Great Northern
Railway (1912) 808
Maxwell v. Galashiels Assessor (1915)... 1264
V. Grunhut (1914) 13
V. Nathan (1915) 1344
May V. Beeley (1911) 798
V. Borup (1915) 817
V. Ison (1914) 1901
V. Mills (1914) 55
Mayell, In re; Foley v. W^ard (1913) ... 1805
Mayhew v. Tripp (1914) 1418,1423,1512
Mayne, In re; Stoneman v. Woods (1914) 1801
Mayner v. Pavne (1914) 1671
Mead v. BairdQll) 256
Meade-King, Robinson & Co. v. Jacobs
& Co. (1915) 1431
Mears, In re; Parker v. Mears (1914) ... 1791
Measures Bros.. Lim. v. Measures (1911) 251
Mechan v. North-Eastern Railway (1912) 1379
Meehan v. Tynan (1915) 1184
Megantic, The (1915) 1504
Mehta v. Sutton (1913) 1207
Meier v. Dublin Corporation (1912) 1953,1965
Meister Ijucius v. Briining, Lim., In re
(1914) 20
Melhuish v. London County Council
(1914) 971
Mellon V. Henderson (1914) 838
Mellor, In re; Dodgson v. Ashworth
(1912) 1788
V. Lydiate (1914) 771
Mendl v. Ropner (1912) 1433
Menell, Lira., In re; Regent Street Fur
Co. V. Diamant (1915) .307
Mentors, Lim. v. Evans (1912) 393
Mercedes Daimler Motor Co. v. Mauds-
ley Motor Co. (1915) 14
Merchiston Steamship Co. v. Turner
(1911) 1284
COL.
Merrick, In re; Joyce, ex parte (1911)... 1560
Merrifield v. Liverpool Cotton Associa-
tion (1911) 688,746
Merriman v. Geach (1912) 35.44
Mersey Docks and Harbour Board v.
Birkenhead Corporation (1915) 932
Merten's Patents, In re (1915) 8,12,14
Merryweather & Co. v. Pearson & Co.
(1914) 1435
Meter Cabs, Lim., In re (1911) 1566
Meters, Lim. v. Metropolitan Gas Meters,
Lim. (1911) 1100
Metford v. Edwards (1914) 779
Metropolis and Counties Permanent In-
vestment Building Society, In re (1911) 859
Metropolitan Asylums Board v. Sparrow
(1913) 1176
Metropolitan District Railway v. Earls
' Court, Lim. (1911) 689
Metropolitan Gas Meters, Lim. v.
British, Foreign, and Colonial Auto-
matic Light Controlling Co. (1912) ... 1103
Metropolitan Police Commissioner v.
Hancock (1915) 1124
Metropolitan Railway v. London County
Council (1911) 987
V. (1913) 989
Metropolitan Water Board v. Adair
(1911) 1727
c. Avery (1914) 1723
-— V. Bibbey (1911) 1727
V. Brooks (1911) 1726
V. Bunn (1913) 1727
V. Colley's Patents, Lim.
(1911) 1723
V. Johnson (1913) 1725
— V. Phillips (1913) 1727
Metropolitan Water Board and London,
Brighton and South Coast Railway,
In re (1915) 1225
Meyer v. Sze Hai Tong Banking and
Insurance Co. (1913) 142
Meyers v. Hennell (1912) 1373
Meynell v. Morris (1911) 382
Meyrick v. Pembroke Corporation (1912) 923
Mickel V. M'Coard (1913) 841
Middle Age Pension Friendly Society,
In re (1915) 600
Middleton v. Hall (1913) 838
"Midland Express," Lim.. In re;
Pearson v. "' Midland Express," Lim.
(1913) 260
Midgley, In re (1915) 94, 95
Midlothian County Council v. Mussel-
burgh Magistrates (1911) 874
Milbourn v. Lyons (1914) 1672
Milch V. Coburn (1911) 827
Millar v. Refuge Assurance Co. (1912)
1908, 1959
Millar & Co. v. Taylor & Co. (1915) ... 341
Millard v. Allwood (1912) 918
Miller, In re; Baillie v. Miller (1914) ... 742
, In re; Furniture and Fine Arts
Depositories, ex parte (1912) 92
V. Field (1914) 894
V. Richardson (1915) 1954
Millers, Lim. v. Steedman (1915) 345
Milligan v. Henderson (1915) 22
Milligan & Co. v. Ayr Harbour Trustees
(1915; 14(;4
Mills r. United Counties Bank (1912) 1037
TABLE OF CASES.
COL.
Milne v. Douglas fl912) 539
Minford v. Carse (1912) 814
Minister for Lands v. Coote (1915) 185
Minister of Public Works of Alberta v.
Canadian Pacific Railway (1911) 196
Mintv V. Glew (1914) ". 1335
V. Sylvester (1915) 615
Miramichi', The (1915) 1700
Mir Sarwarjan v. Fakaruddin Mahomed
Chowdhry ('l911) 673
Mist V. Metropolitan Water Board (1915) 1722
Mitcham Common Conservators v. Banks
(1912) 226
V. Cole (1911) 226
V. Cox (1911) 226
Mitchell, In re; Freelove v. Mitchell
(1913) 1211
In re: Mitchell v. Mitchell (1913) 1806
V. Croydon Justices (1914) 759
V. East Sussex County Council
(1913) ". 1372
V. Egyptian Hotel. Lim. (1915) ... 1279
V. Mosley (1914) 816, 860
Mitchell's Trustees v. Eraser (1915) ... 3
Mitchinson v. Day (1913) 1903
Mitsui & Co. V. Mumford (1915) 728
Modena, The (1911) 1438
Moel Tryvan Steamship Co. v. Weir
(1911) ■ 1431
Mold and Denbigh Junction Railway v.
London and North-Western Railway
(1915) 1227
Monckton v. Gramophone Co. (1912) 362
V. Pathe Freres Pathephone, Lim.
(1913) 362
Monckton 's Settlement, In re: Monckton
V. Monckton (1913) 1403. 1413
Monica, The (1912) 1509
Monkman v. Stickney (1913) 1632
^lonolithic Building Co.. In re; Tacon
V. The Company (1915) 262
Monro v. Bognor Urban Council (1915) 51
V. Central Creamery Co. (1912) ... 912
Montague v. Davies, Benachi & Co.
(1911) 567
Montreal City v. Montreal Street Rail-
way (1912) 195
Montreal Light, Heat, and Power Co.
V. Sedgwick (1911) 1542
Montgomery v. Gray (191oj 687
Moor Line, Lim. v. Distillers Co. (1912) 1458
Moore v. Lawson (1915) 1189
V. Leicester Insurance Committee
(1915) 706
V. Naval Colliery Co. (1912) 1966
V. Stewarts & Lloyds, Lim. (1915) 1288
Moore & Co. v. Inland Revenue (1915) 1289
Moore and Hulme's Contract, In re
(1911) 1040, 1677
Moosa Goolam Ariff v. Ebrahim Goolani
Ariff (1912) 672
Moosbrugger v. Moorsbrugger (No. 1)
(1913) 6.53
V. (No. 2) (1913) 646
Moran v. Jones (1911) 1661
Morgan, In re; Vachell i'. Morgan
(1914) 1005, 1397
r. Dixon. Lim. (1911) 1972
V. Hart (1914) 568
„. Kenyon (1914) 884
Morgan & Co., In re (1915) 1564
COL.
Morison v. Kemp (1912) 141
V. London Countv and Westminster
Bank (1913) ." 142
V. (1914) 978
Morison & Co., In re (1912) 310
Morpeth Rural Council v. Bullocks Hall
Colliery Co. (1913) 1753
Morrell v. Studd (1913) 330, 350, 1598
Morrell & Chapman's Contract, In re
(1914) 1678
Morris, In re (1912) 940
V. Ashton (1912) 708, 712
V. Godfrey (1912) 609
V. Morris" (1915) 658
V. ; Kennard v. Kennard
(1915) 658
Morris, Lim. v. Saxelby (1915) 344
Morrison v. Inland Revenue Commis-
sioners (1915) 1307
Morrison, Jones & Taylor, Lim., In re;
Cookes V. The Company (1914) ... 263, 1354
Mortimer v. Wisker (1914) 1948
Moser, Ex parte (No. 2) (1915) 585
Moses V. Midland Railway (1915) 594
V. Raywood (1911) 594
Mosley's Settled Estates, In re (1912)... 1403
Moss Steamship Co. v. Whinney (1912) 1451
Mount Edgcumbe (Earl) v. Inland
Revenue Commissioners (1911) 1342
Mountgarret (Viscount), In re; Ingilby
V. Talbot (1913) 580
Mountgarret & Moore's Contract, In re
(1915) 1393
Mowats V. Hudson (1911) 595, 821
Mowe, The (1914) 1698
Mowbray (Lord) v. Att.-Gen. (1912) ... 1302
Mowlem & Co. v. Dunne (1912) 2004
Moyes v. Perth Assessor (1912) 1264
Mudge, In re (1914) 1407
Mudlark, The (1911) 1488
Muir V. Jenks (1913) 1182
Muir's Executors v. Craig's Trustees
(1913) 1202
Mulhern v. National Motor Cab Co.
(1913) 376
Mulraj Khatau v. Vishwanath Prab-
huram Vaidya (1912) 674
Mullingar Rui'al Council v. Rowles
(1913) 1282
Munday v. South Metropolitan Electric
Light Co. (1913) 1155
Munday, Lim. v. London County Council
(1915) 389
Muniandy Chetty v. Muttu Caruppen
Chetty (1913) 210
Munro v. Bennet (1911) 1355
V. Didcott (1911) 217
V. Mallow Urban Council (1911)... 869
Muntz Metal Co. v. London and North-
western Railway (1911) 1246, 1252
Munzer v. Munzer (1912) 643
Murphy, In re; Prendergast v. Murphy
(1913) 943
V. Bandon Co-operative Society
(1911) 832
V. Cooney (1914) 1919
V. Regem (1911) 1113
^. Wilcocks (1911) 59
Murphy & Co. v. Crean (1915) 778
Murray v. Denholra (1911) 1890, 1891
TABLE OF CASES.
XXIX
COL.
Murrayfield Real Estate Co. v. Edin-
burgh Magistrates (1912) 889
Musainmat Bilas Kunwar v. Desraj
Ranjit Singli (1915) (572
Musammat Remeshwar Kurnar v. Gaya
(Collector) (1913) 672
Myers v. Bradford Corporation (1914) ... 1219
N. (a solicitor), In re (1912) 15G0
N. t'. N. (1913) 647
Nagindas Bhugwandas v. Bachoo
Hurkissondas (1915) 672
Napier v. Napier (1915) 632
V. Williams (1911) 553, 820
Nash V. Layton (1911) 505
V. ■' Raniatira '" (Owners) (1914) ... 1918
Natal Bank v. Rood (1911) 217
National Bank v. Behan (1913) 590
National Bank of Scotland v. Shaw
(1913i (31
National Insurance Act, In re (Officers
of South Dublin Union) (1913) 701
, In re (Pupil Teachers
and Monitors) (1913) 701
National Park Bank v. Berggren & Co.
(1914) 136
National Phonograph Co. of Australia v.
Menck (1911) 1104
National Protector Fire Insurance Co. v.
Nivert (1911) 719
National Provincial Bank of England v.
Glanusk (Baron) (1913) 82, 1214
National Provincial Insurance Corpora-
tion, In re; Cooper v. The Corporation
(1912) 304
National Society for Prevention of Cruelty
to Children v. Scottish National Society
for Prevention of Cruelty to Children
(1914) 161, 1777
National Standard Life Assurance Cor-
poration, In re (1911) 296
National Telephone Co., In re (1913) ... 299
V. Hythe Corporation
(1911) 1584
V. Postmaster-General
(No. 1) (1913) 1585
V. (No. 2) (1913)
37, 1585
National Trust Co. v. Whicher (1912) ... 282
Natural Color Kinematograph Co. v.
Bioschemes, Lim. (1915) 1098
Neal, In re ; Trustee, ex parte (1914) 107
Neale v. Birmingham Tramways Co.
(1911) 241
Neall V. Beadle (1912) 813
Neate v. Wilson (1912) 1419
Nelson v. Nelson & Sons, Lim. (1914) ... 248
Nesfield, In re; Barber & Cooper (1914)... 1326
Nettleingham v. Powell (1913) 2029
Neuchatel Asphalte Co.'s Application,
In re (1913) 1612, 1615
Neumann v. Neumann (1913) 635
Nevanas & Co. t; . Walker (1914) 346
Neville v. Dominion of Canada News Co.
(1915) 339
Newberry v. Bristol Tramways and Car-
riage Co. (1913) 1059
Newbould, In re; Carter v. Newbould
(1914) 358
Newburgh and North Fife Railway v.
North British Railway (1913) 238
COL.
Newcastle Grain Co. v. North-Eastern
Railway (1911) 1245
Newcastle-on-Tyne Electric Supply Co. v.
Newcastle-on-Tyne Corporation (1911) 5-50
Newcombe v. Yewen and Croydon Rural
Council (1913) 1U75
Newdigate Colliery Co. , In re ; Newde-
gate V. Newdigate Colliery Co. (1912) 279
Newell V. King (1913) 703
Newey, In re ; Whiteman, ex parte (1913) 96
New Fenix Compagnie v. General Acci-
dent, Fire, and Life Assurance Corpora-
tion (1911) 1174
New Haw Estate Trust, In re (1912) ... 1659
New Imperial and Windsor Hotel Co. v.
Johnson (1912) 1079
Newman v. Bourne & Hollingsworth
(1915) 1011
V. Oughton (1911) 1023
New Mining and Exploring Syndicate v.
Chalmers & Hunter (1912) 1091
New Monckton Collieries v. Keeling (1911) 1950
V. Toone (1913) 2019
Newquay Urban Council v. Rickeard
(1911) 925
New South Wales Railways (Chief Com-
missioner) V. Hutchinson (1914) 187
Newson v. Burstall (1915) 1925
V. Law Society (1912) 1547
Newton v. Marylebone Borough Council
(1915) '. 985
Newton Abbot Rural Council v. Wills
(1913) 807
New Tredegar Gas and Water Co., In re
(1914) ■. 239
New Westminster Brewery Co., In re
(1911) 231
New York Life Assurance, In re (1915)... 733
New York Taxicab Co., In re; Seguin v.
The Company (1912) 275, 282
New Zealand Shipping Co. v. Duke (1914) 1537
V. Stephens (1912) 1278
Nicholas v. Davies (1914) 763, 801
Nicholls V. White (1911) 1351
V. Evans (1913) 612
Nickson v. Dolphin (1911) 523
Nicol V. Young's Paraffin Light Co.
(1915) 1923
Nicola vBelozwetow, The (1915) 1493
Nicoir^-. Strachan (1913) 605
Nightingale v. Parsons (1914) 1194
Niland v. Niland (1913) 635
Nimmo v. Lanarkshire Tramways Co.
(1912) 1634
Ningchow. The (1915) 1705
Nisbet V. Rayne (1911) 1893, 1904
Nitrate Securities Trust v. Williams
(1912) 1188
Nocton V. Ashburton (Lord) (1914) 596
Noden v. Galloways, Lim. (1911) 1891
Nolan, In re ; Sheridan v. Nolan (1912)... 1816
Nordberg, Lim., In re (1915) 243
Norman, Ex parte (1915) 1684
, In re; Thackray v. Norman (1914) 487
— V. Great Western Railway (1915) ... 1056
Norris v. Great Central Railwav (1915)... 1232
North V. Wood (1914) ' 22
North Britisli Distillerv Co. v. Edinburgh
As.sessor (1911) ...."! 1264
North British Railway v. Coltness Iron
Co. (1911) 1252
V. Wilson (1911) 1888
XXX
TABLE OF CASES.
COL.
North British Railway r. Wingate (1913) 1223
North-Eastern Insurance Co., In re (1915) 312
North-Eastern Eailway v. Ferens (191i) 1249
V. Reckitt (1913) 1237
Northern Assurance Co. v. Farnham
United Breweries (1912) 282
Northfield Steamship Co. v. Union des
Gaz (1912) 1460
North Staffordshire Railway v. Waters
(1913) 25
Northumberland (Duke) v. Inland
Revenue Commissioners (1912) 1343
North-Western Salt Co. v. Electrolytic
Alkali Co. (1914) 338,342,345
Norton, In re; Norton v. Norton (1911)... 1122
Notley V. London County Council (1915) 992
Nunburnholme (Lord), In re; Wilson v.
Nunburnholme (1911) 1811
Nunnery Colliery Co. v. Stanley (1914) ... 713
Nutfs Settlement, In re; McLaughlin v.
McLaughlin (1915) 1148, 1414
Nuttall V. Pickering (1912) 1740
Oakey v. Jackson (1913) 684
O'Brien v. Killeen (1914) 68
V. Oceanic Steam Navigation Co.
(1914) 1512
V. McCarthy (1912) 538
O'Callaghan v. Irish Insurance Commis-
sioners (1915) 701
Ocean Accident and Guarantee Corpora-
tion V. Collum (1913) 858, 1043
Oceana Development Co., In re (1912) ... 242
O'Connell v. Blacklock (1912) 539
V. Oceanic Steam Navigation Co.
(1914) 1512
O'Connor, In re ; Grace v. Walsh (1913) 1647
V. O'Connor (1911) 1798
Oddenino v. Metropolitan Water Board
(1914) 1724
Oddy, In re (1911) 1648, 1659
Odessa, The (1915) 1704
O'Driscoll V. Manchester Insurance Com-
mittee (1914) 67
V. Sweeney (1915) 706
Oelkers v. Ellis (1914) 857
Oesterreichische Export vorm Janowitzer
V. British Indemnity Co. (1914) 1156
Oetl, In the estate of "(1915) 1772, 1774
O'Gorman v. 0"Gorman (1912) 655
O'Grady, In re; O'Grady v. Wilmot
(1915) 1328
Oilfields Finance Corporation, In re
(1915) 306
O'Keefe v. Edinburgh Corporation (1911) 1068
Okehampton, The (1913) 1427, 1485
Okura v. Forsbacka Jernverks Aktiebolag
(1914) 1163
O'Leary v. Deasy (1911) 830
Oliver, In re (1914) 121
Olivieri, In re; Hamill v. Rusconi (1912) 1829
Oilier V. Oilier (1914) 648
Olpherts v. Corvton (1913) (No. 1) 572
V. (1913) (No. 2) 574
Olympia Oil and Cake Co. v. North-
Eastern Railway (1914) 1253
Olympia Oil and Cake Co. and Produce
Brokers Co., In re (No. 1) (1914) 1362
, In re
(No. 2) (1915) 58
Olympic, The (1912) 1421
Olympic, The, and H.M.S. Hawke
(1915) 1499
O'Mara, Lim. v. Dodd (1912) 1165
Omnium Electric Palaces, Lim. v. Baines
(1914) 235
O'Neill V. Brown & Co. (1913) 2021
V. Belfast County Council (1912) ... 417
V. Drohan and Waterford County
Council (1914) 936
V. McGrorty (1915) 580
Openshaw v. Pickering (1913) 1734
Ophelia, The (1914) 1493, 1511
(1915) 1695
Oppenheim, In re; Oppenheim v. Oppen-
heim (1914) 1797
Oram v. Hutt (1914) 1629
Orangemoor, The a915) 1476
Orcoma, The (1915) 1712
Orenstein & Koppel v. Egyptian Phos-
phate Co. (1915) 20
Orient Co. v. Brekke (191.3) 1363
Orleans Motor Co., In re; Smyth v. The
Company (1911) 207
Ormskirk Union v. Lancaster Union
(1912) 1134, 1136
Orphan Working School and Alexandra
Orphanage, In re (1912) 158
Orton V. Bristow (1915) 602
Osborn & Osborn, In re (1913) 1558
Osborne v. Amalgamated Society of Rail-
way Servants (1911) 1626
V. Tralee and Dingle Eailway
(1913) 2019
Osgood V. Sunderland (1914) 857
O'Shea, In re ; Lancaster, ex parte (1911) 612
„. Cork Rural Council (1914) 935
Osmondthorpe Hall Freehold Garden and
Building Allotment Society, In re
(1913) 309
Osram Lamp Works, Lim. v. Gabriel
Lamp Co. (1914) 507
Otago Farmers' Co-operative Association
V. Thompson (1911) 1542
Ounsworth v. Vickers, Lim. (1915) 1292
Outram v. London Evening Newspapers
Co. (1911) 1601
Outremont Corporation v. Joyce (1912) ... 879
Owen, In re; Slater v. Owen (1912) 1591
V. Parry (1914) 969
Owner v. Bee Hive Spinning Co. (1913)... 965
Oxley, In re; Hornby v. Oxley (1914) ... 570
V. Link (1914)" 1183
Pacaya Rubber and Produce Co., In re
(1912) 304
, In re; Burns 's
Case (1914) 236
Pacific Coast Syndicate, In re; British
Columbian Fisheries, ex parte (1913)... 316
Pacuare, The (1912) 503, 504, 1510
Padbury v. Halliday & Greenwood (1912) 978
Paddington Borough Council v. Kensing-
ton Borough Council (1911) 986
Paddington Union v. Westminster Union
(1915) 1132
Paice & Cross, In re (1914) 1562
Paine (a Solicitor), In re (1912) 1548
V. Bevan (1914) 140
Palace Billiard Rooms, Lim. v. City Pro-
perty Investment Trust Corporation
(1912) 242
1
TABLE OF CASES.
XXXI
COI,.
Palace Hotel, Lim., In re (1912) 243
Palace Kestaurants, Lim., In re (1914)
316, 1559
Palfreeman, In re; Public Trustee v.
Palfreeman (1914) 1830
Pallin u. Buckland (1911) 1135
Palliser v. Dover Corporation (1914) 820
Palmer, In re; Leventhorpe v. Palmer
(1912) 1328
, In re ; Palmer v. Cassel (1912) 1586
, In re; Thomas v. Marsh (1911) ... 942
V. Emerson (1911) 1649
V. Palmer (1914) 657
Panagotis v. " Pontiac " (Owners) (1911)
396, 2012
Panariellos, The (1915) 1690, 1703
Pankhurst v. Jarvis (1911) 1127
Papworth v. Battersea Borough Council
(1914) 998
V. (No. 2) (1915) ... 999
Paratt, In re; Paratt v. Paratt (1914) ... 380
Parchim, The (1915) 1702
Park V. Lawton (1911) 253
- V. Royalties Syndicate, Lim. (1912) 290
Park's Settlement, In re; Foran v. Bruce
(1914) 1119
Parker r. " Black Rock " (Owners) (1915) 1919
V. Hambrook (1912) 1929
V. Pout (1911) 1922
Parkes v. Dudley Justices (1912) 756, 763
Parnell v. Portsmouth Waterworks (1911) 1721
Parr v. Lancashire and Cheshire Miners'
Federation (1913) 1625
Parrish v. Hackney Borough Council
(1912) 1001
Parry v. Ocean Coal Co. (1912) 1975
Parsons v. Nesbitt (1915) 856
V. Sovereign Bank of Canada (1912)
204, 279
Paspati V. Paspati (1914) 501, 633
Pastoral Finance Association v. The
Minister (1914) 187
Pate V. Pate (1915) 208
Paterson v. Norris (1914) 1064
Pathe Freres Cinema v. United Electric
Theatres (1914) 1167
Paton V. Dixon, Lim. (1913) 1898
Patrick, In re; Hall & Co., ex parte
(1912) 128
Patten v. Hamilton (1911) 1196
Paul V. Robson (1914) 521
Paul's Trustee v. Justice (1913) 302
Payne v. Ecclesiastical Commissioners
(1913) 360
V. Fortescue (1912) 1971
Pearce, In re ; Alliance Assurance Co. v.
Francis (1914) 1782
, In re; Eastwood v. Pearce (1912)... 1790
Peaks, Ex parte; Rex v. Davies (1911)
541,877
Pearks V. Cullen (1912) 345
Pears v. London County Council (1911)... 989
V. Pears (1912) 652
Pearse, In re; Bankrupt, ex parte (1913) 99
Pearson v. Babcock & Wilcox (1913) 1985
Peel, In re ; Honour, ex parte (1913) 114
V. Lawrence (1912) 1911
Peel's Settlement, In re; Biddulph v.
Peel (1911) 1140, 1147
Pcizer v. Lefkowitz (1912) 1024
Pelegrin v. Coutts & Co. (1915) 80, 742
V. Messel & Co. (1915) 80
^ , COL.
Pemberton & Cooper, In re (1913) 481
Pena Copper Mines v. Rio Tinto Co.
(1912) 743
Penang Foundry Co. v. Gardiner (1914) 297
Penarth Pontoon Shipways and Ship
Repairing Co., Lim., In re (1911) 285
Pennington, In re; Pennington v. Pen-
nington (1913) 1.586
V. Cayley (No. 1) (1912) 1157
V. (No. 2) (1912) 1157
Peninsular and Oriental Steam Naviga-
tion Co. V. Leetham & Sons, Lim.
(1915) 1470
Pepper v. Sayer (1914) 1930
Pereira, In re; Worsley v. Society for
Propagation of Gospel (1912) 1767
Perkeo, The (1914) 1695
Perkins v. Jeffery (1915) 453
Perkins' Settlement, In re; Warren v.
Perkins (1912) 324
Perrin v. Perrin (1914) ... 564, 635, 636, 736
Perry v. Fitzgerald (1915) 1191
V. Hessin (1911) 1603
V. (1912) 564
V. Ocean Coal Co. (1912) 1975
Perry & Co. v. Hessin & Co. (1913) 379
Persse, In re (1911) 93
Perth Gas Co. v. Perth Corporation (1911) 622
Peruvian Amazon Co., In re (1913) 317
Peruvian Railway Construction Co.. In
re (1915) 313
Pessers v. Catt (1913) 607
Peter Benoit, The (1914) 1486, 1505
Peters v. Jones (1914) 973
Pethick Dix & Co., In re; Burrows v.
The Company (1914) 2005
Petschett v. Preis (1915) 1958
Pettey v. Parsons (1914) 372, 520, 1168
Pharmaceutical Society v. Jacks (1911) ... 981
V. Nash (i911) 981
Pharaon, In re (1915) 1693
Phelon & Moore v. Keel (1914) ... 1741, 1744
Phesse v. Fisher (1914) 1634
Phillimore v. Watford Rural Council
(1913) 896
Phillips, In re (1914) 110
V. Batho (1913) 744
V. Manufacturers Securities, Lim.
(1915) 233
V. Royal London Mutual Insurance
Co. (1911) 694
V. Vickers, Son & Maxim (1911)
1983, 1984
Phoenix Assurance Co. v. Earl's Court,
Lim. (1913) 66
Piccadillv Hotel, In re; Paul v. Picca-
dilly Hotel (1911) 263
Pickard, In re; Official Receiver, ex parte
(1911) 124, 128
Pickering v. Belfast Corporation (1911)... 1058
Pickersgill v. London and Provincial
General Insurance Co. (1912) 1543
Pickles V. Foster (1912) 1297
Pierce v. Provident Clothing and Supply
Co. (1911) 1906
V. Wexford Picture House Co.
(1915) 307
Piggin. In re; Mansfield Railway, ex
parte (1913) 844
Pilet, In re; Toursier & Co., ex parte
(1915) 132
Pilgrim v. Simmonds (1911) 1743
TABLE OF CASES.
Pilkington r. Ross (1914) 774
Pink, In re; Pink v. Pink (1912) 1822
V. Sharwood (No. 1) (1913) 501
V. (No. 2) (1913) Ifilfi
Pinkerton v. Pratt (1915) 553
Pitchford v. Blackwell Colliery Co. (1915) 104
Pitgaveney, The (1911) 1493," 1494. 1499. 1502
Pitman v. Cruni Ewing (1911) 531
Pitner Lighting Co. v. Geddis (1912) ... 1110
Pitts V. Plymouth Corporation (1912) ... 1726
Plant V. Collins (1913) 391, 747
Plasycoed Collieries Co. v. Partridge
(1911) 387
V. Partridge, Jones &
Co. (1912) .514
Piatt V. Casey's Drogheda Brewery Co.
(1912) : 273
Plowright V. Burrell (1913) 916
Plumb r. Cobden Flour Mills Co. (1914) 1930
Plumbers Co. v. London County Council
(1913) 1333
Poad V. Scarborough Union (1914) 1130
Pocock V. Carter (1912) 810, 1090
V. Thacker & Co. (1915) 355
Point Grey Corporation v. Stewart (1913) 1573
Pollard »." Turner (1912) 77
Pollurian Steamship Co. r. Young (1915)
1533. 1540
Pontefract Corporation v. Lowden (1915) 369
Pontypridd Urban Council v. Jones (1911) 929
Poole V. Stokes (1914) 684
Poole Corporation v. Bournemouth Cor-
poration (1911) 1295
Pooley V. O'Connor (1912) 1182
Poona. The (1915) 1688, 1693, 1699
Pope and Easte's Contract, In re (1911)
1394, 1648
Pope's Electric Lamp Co.'.s Application,
In re (1911) 16l0
Pope V. Hill's Plymouth Co. (1912) 1931
Popham, In re; Buller v. Popham (1914) 1591
Popple V. Frodingham Iron and Steel Co.
(1912) 1988
Port of London Authority v. Cairn Line
(1913) 1518
V. Midland Eailway
(No. 1) (1912) 1244
— V. (No. 2)
(1912) 1244
Port Hunter, The (1911) 1476
(1915) 1491
Porte V. 'Williams (1911) 1328
Porters. Eraser (1912) 1552
V. Freudenberg (1915) 8, 12, 14
V. Tottenham Urban Council (1915)
355, 1885
Porter, Amphlett & Jones, In re (1912) 1562
Portman v. Griffin (1913) 690
Portsmouth, The (1912) 53, 1439
Postmaster-General v. Croydon Corpora-
tion (1911) 1584
V. Darlington Corporation (1914) 1582
V. Hendoii Urban Council (1913) 1582
t\ Nenagh Urban Council (1913) ... 1726
V. Tottenham Urban Council
(1911) 1583
Potter V. Berry (1914) 144,249
V. Challans (1911) 25
V. 'Watt (1914) 180
V. 'V\'elsh & Sons, Lim. (1914)
1960, 2007
Potts (or Young) v. Niddrie and Benhar
Coal Co. (1913) 1951
V. Sanderson (1911) 534
Poulter, In re ; Poul,ter v. Poulter
(1915) 1212
Poultney, In re; Poultney v. Poultney
11912) 1792
Poulton V. Anglo-American Oil Co.
(1911) 1369
r. Kelsall (1912) 1902
V. Moore (1918) 44, 371, 396, 557
V. (1915) 518
Powell Duifryn Steam Coal Co. v.
Glamorganshire County Council (1915) 1125
Powell V. Powell (1914) 635, 636, 736
Power's Estates, In re (1913) 854
Prager v. Prager (1913) 630
Prance v. London County Council (1915) 972
Pratt V. Martin (1911) 605
Premier Rinks v. Amalgamated Cine-
matograph Theatres (1912) 825
Premier Underwriting Association, In
re; Cory, ex parte (1913) 309
, In re; Great Britain
Mutual Marine Insurance Association,
ex parte (1913) 309
President Lincoln, The (1911) 1497
Pressley v. Burnett (1914) 1060
Prested Miners' Gas Indicating Electric
Lamp Co. v. Garner (1911) ... 335, 1351
Preston v. Redfern (1912) 906
Pretty v. Pretty (1911) 644
Price V. Att.-Gen. (1914) 173, 1380
V. Price (1911) 642
V. Tredegar Iron and Coal Co.
(1914) 1925
V. Webb (1913) 711
V. Westminster Brymbo Coal and
Coke Co. (1915) 1989
Pridgeon v. Mellor (1912) 474, 566
Priest V. Manchester Corporation (1915) 1738
Prigoshen, In re; Official Receiver, ex
parte (1912) 104
Princess Marie Jos^, The (1913) 1510
Printing Machinery Co. v. Linotype and
Machinery, Lim. (1912) " 52, 811
Printz V. Sewell (1912) 1747
Pritchard v. Couch (1913) 388
V. Torkington (1914) 1933
Pritchard's Settled Estates, In re (1914) 1398
Pritt, In re; Morton v. National Church
League (1915) 160
Proctor V. Robinson (1911) 2016
V. "Serbino" (Owners) (1915) ... 1916
V. Tarry (1915) 752
Produce Brokers' Co. v. Furness, Withy
& Co. (1912) 1471
Property Insurance Co., In re (1914) ... 312
V. National Protector In-
surance Co. (1913) 1528
Proyincial Motor Cab Co. v. Dunning
(1911) 1747
Pryce, In re; Lawford v. Pryce (1911) 739
Pryde v. Moore & Co. (1913) 1985, 2019
Public Trustee v. Laurence (1912) 1042
Pugh V. Riley Cycle Co. (1912) 1621
Pullan V. Koe (1912) 1407
Pulleyne v. France (1913) 1671
Pumford v. Butler & Co. (1914) ... 777, 1396
Pupil Teachers and Monitors, In re
(1913) 701
TABLE OF CASES.
COL.
Purchase v. Lichfield Brewery Co. (1916) 819
Purdie v. Regem (1914) 1297
Pursell V. Clement Talbot, Lim. (1915) 968
Purser v. Purser (1913) 663
Pyke, In re; Birnstingl v. Birnstingl
(1912) 1593
Pyman Steamship Co. v. Hull and
Barnsley Railway (1915) 1518
Pwllbach Colliery Co. v. Woodman
(1915) 1077
Quartermaine v. Quartermaine (1911)
655, 658
Queenborough Corporation v. Sheppey
Rural Council (1915) 873
Quirk V. Thomas (Executor of) (1915)
577, 63-1
R. V. S. (1914) 499
Radeke, In re; Jacobs, ex parte (1915)
97,1191
Radford v. Risdon (1912) 1764
V. Williams (1913) 768
Radium Ore Mines, In re (1913) 1005
Radley v. London County Council (1913) 976
Raggi, In re; Brass v. Young & Co.
(1913) 858
Raggow V. Scougall & Co. (1915) 337
Ragnhild, The (1911) 1498, 1501
Raja Srinath Roy v. Dinabandhu Sen
(1914) 673
Rakusen v. Ellis, Munday & Clarke
(1912) 1549
Ramel Syndicate, In re (1911) 307
Ramoneur v. Brixey (1911) 350
Ramos v. Ramos (1911) 639, 738
Ramsay, In re; Deacon, ex parte (1913) 122
V. Ramsay (1913) 633
Ramsden v. Chessum (1914) 1879
V. Inland Revenue Commissioners
(1913) 1310
Ramuz v. Leigh-on-Sea Conservative
and Unionist Club (1915) 1672
Randle v. Clay Cross Co. (1913) 1017
Rangoon Botatoung Co. v. Rangoon
Collector (1912) 672
Rankine v. Fife Coal Co. (1915) 1968
Ranson v. Piatt (1911) 74
" Raphael " Steamship v. Brandy (1911) 1991
Raulin v. Fischer (1911) 744
Raven, In re; Spencer v. National
Association for Prevention of Con-
sumption (1915) 159, 161
■ , In re; Spencer v. Raven (1915) ... 1801
Rawlings v. Smith; Surfleet's Estate,
In re (1911) 167
Ray V. Flower Ellis (1912) 1095
V. Newton (1912) 1557
Rayer, In re; Rayer v. Rayer (1913) ... 1396
Rayner v. Stepney Borough Council
(1911) 890
Rea V. London County Council (1911) ... 990
Read, Halliday & Sons, Lim. v. Great
Central Railway (1915) 1244
Reading Industrial Co-operative Society
V. Palmer (1912) 1673
Red " R " Steamship Co. v. Allatini
(1911) 1450
COL.
Recher & Co. v. North British and Mer-
cantile Insurance Co. (1915) 57
Reddall v. Union Castle Mail Steamship
Co. (1915) .^ 1371
Reddawav & Co.'s Application, In re
(1914) ' 1613
Redhill Gas Co. v. Reigate Rural Council
(1911) 621
Reeves v. Pope (1914) 65, 816, 1040
Reference by Governor-General of
Canada to Supreme Court, In re (1912) 193
Regent's Canal and Dock Co. v. London
County Council (1912) 842
Registrar of Trade Marks v. Du Cros
(1913) 1611
Reichardt v. Shard (1914) 1060
Reid V. Cupper (1914) 381
Reid Newfoundland Co. v. Anglo-
American Telegraph Co. (1911) 213
V. (1912) 213
Reliance Marine Insurance Co. v. Duder
(1912) 1523
Reliance Taxicab Co., In re (1912) 307
Remorquage a Helice (Soci^t^ Anonyme)
V. Bennetts (1911) 481
Rendall v. Morphew (1915) 64
Renfrew v. M'Crae, Lim. (1914) 1909
Renison, In re; Greaves, ex parte (1913) 90
Renee Hyalfil (1915) 1448
Rennie v. Boardman (1914) 1378
Republic of Bolivia Exploration Syndi-
cate, Lim., In re (No. 1) (1914) 735
, , In re (No. 2)
(1914) 256
Retail Dairy Co. v. Clarke (1912) 915
Reversion Fund and Insurance Co. v.
Maison Cosway (1912) 1203
Revie v. Cumming (1911) 1909
Rex V. Abramovitch (1912) 402
V. (1914) 415
V. Acaster (1912) 451
V. Ahlers (1915) 423, 1651
V. Albany Street Police Superinten-
dent; Carlebach, ex parte (1915) ... 9, 736
V. Alberta Railway and Irrigation
Co. (1912) 199
V. Albutt (1911) 563
V. Alexander (1912) 402, 469
V. Allen; Griffiths, Ex parte (1911) 540
V. ; Hardman, Ex parte (1912) 800
V. Amendt (1915) 155
V. (No. 2); Rex v. Taylor
(1915) 755
V. Amphlett (1915) 1019
V. Andover Rural Council (1913)
868, 948
V. Armagh Justices (1913) 786
V. Asiiton ; WalktT, Ex parte
(1915) 804
V. Astor; Isaacs, Ex parte (1913) 327
V. Austin (1913) 16(52
V. Baggallay (1913) 712
V. Baird (1915) 454
V. Baker (1912) 438
V. Banks (1911) 439, 453
V. Barron (No. 1) (1914) 453
V. (No. 2) (1914) 438. 471
■ — — V. Barton and Immingham Light
Railway; Simon, Ex parte (1912) 847
V. Bates (1912) 435
V. Batty (1912) 468
d
XXXIV
TABLE OF CASES.
COL.
Eex V. Beacontree Justices (1915) ... 784, 912
V. Beckett (1913) 417
V. Beech (1912) 418
V. Beesley ; Hodson, Ex parte
(1912) 754
V. Bell (1914) 432
V. Berger (1915) 415
V. Best (1911) 443
V. Be.xhill Corporation; Cornell, Ex
parte (1911) 887
V. Birchall (1913) 419
V. Birmingham Justices; Hodson,
Ex parte (1912) 754
V. Birtles (1911) 426
V. Bloomsbury Income Tax Com-
missioners ; Hooper, Ex parte (1915) 1293
V. Blumenfeld ; Tupper, Ex parte
(1912) 326
V. Board of Trade (1915) 1225
V. Bono (1913) 563
V. Bow County Court (Eegistrar) ;
Scottish Shire Line, Ex parte (1914) 1987
V. Bowman (1912) 60
V. Bovle (1914) 410, 453
V. Bradford (1911) 461
V. Brentford Justices; Long, Ex
parte (1911) 796
V. Bristol Recorder; Bristol Water-
works Co., Ex parte (1913) 1270
V. Brixton Income Tax Commis-
sioners (1913) 1344
V. Brixton Prison (Governor) ;
Mehamed Ben Romdan, Ex parte
(1912) 584
V. ; Savarkar, Ex
parte (1911) 38, 586
V. ; Servini, Ex
parte (1913) 586
V. ; Sjoland, Ex
parte (1912) 609
V. ; Stallman, In
re (1912) 586, 625
V. ; Tompson, Ex
parte (1911) 587
V. ; Wells, Ex
parte (1912) 584
V. Broad (1915) 215
V. Brooks (1913) 462
V. Brounhill (1913) 461
V. Brown (1913) 421
V. Bros; Hardy, Ex parte (1911) 444
V. Bruce (1911) 462
V. Bundy (1911) 468
V. Byles; Hollidge, Ex parte (1913) 786
V. Cade (1914) 408
V. Campbell (1911) 453
t,. (1913) 467
V. Canadian Pacific Railway (1911) 196
V. Cargill (1913) '. 451
c. Carlow Justices (1911) 807
V. Caroubi (1912) 401
V. Carpenter (1912) 406
V. Casey (1914) 865
V. Castiglione (1912) 424
V. Cavan Justices (1914) 1749
- V. Cawthron (1913) 422, 459, 1599
V. Chainey (1913) 434, 468
V. Chandler (1912) 404
V. Chapman (1911) 450
V. (1912) 444
Rex V. Cheshire Justices; Heaver, Ex
parte (1912) 761
V. Chester Licensing Justices;
Bennion, Ex parte (1914) 759
V. Chitson (1911) 447
u. Christie (1913) 467
V. Churchman (1914) 435, 806
V. City of London Justices (1912) 1271
V. Coelho (1914) 402
V. Cohen (1914) 446, 450
V. Colbeck (1915) 1688
V. Connor (1914) 462, 795
V. Cooke (1912) 762
- V. Cooper (1911) 461
V. Cork Countv Council (1911) 948
V. Cork Justices (1911) 793
V. (1912) 784, 797
V. (1913) 789, 807
V. Cork (Recorder) (1913) 803, 893
V. Costello (or Connolly) (1911) ... 959
V. County of London Insurance
Committee; Salter, Ex parte (1914) ... 705
V. Crane (1911) 470
V. (1912) 470
• V. Crewe Licensing Justices;
Bricker, Ex parte (1914) 762
V. Crippen (1911) 439, 452
V. Crisp (1912) 458
V. Crowley (1913) 432
■ V. Crown Office Master (1913) 948
V. Culliford (1911) 431
V. Cumock (1915) 415, 443
V. Curtis (1913) 468
V. Daly; Newson, Ex parte (1911) 515
V. Davidson (1911) 463
V. Davies ; Peake, Ex parte (1911)
541, 877
V. (1912) 418, 460, 463
V. (No. 1) (1913) 413
V. (No. 2) (1913) 418
V. Davison (1913) 458, 787
V. de Grey; Fitzgerald, Ex parte
(1913) 1377
V. Dickinson; Davis, Ex parte
(1911) 804
V. Dimes (1912) 432
V. Durham County Council ;
Graham, Ex parte (1912) 368
V. Dymock (Vicar); Brooke, Ex
parte (1914) 527
V. ; Oulton, Ex parte (1913)... 1379
V. ; , Ex parte (1913) ... 1379
V. Edgar (1913) 439
V. Edwards (1913) 413
V. Ellis (1911) 447
- V. Ellson (1911) 446
V. Emerson (1913) 787
V. Epsom Urban Council; Course,
Ex parte (1912) 924
V. Ettridge (1911) 463
V. Evans (1914) 795
V. (1915) 1662
V. Everitt (1911) 431
V. Fidler (1914) 1663
V. Fine (1912) 459
V. Fisher (1911) 406, 409
v. Foots Cray Urban Council (1915) 886
V. Fowler (1913) 431
V. Eraser (1912) 452
V. Fryer (1915) 402
TABLE OF CASES.
COI,.
Bex p. Gainsford (1913) 965
V. Gardner a915) 442
V. Garland (1911) 416
V. Garrett-Pegge (1911) 792
V. Gaskell (1912) 469
V. Gilbert (1913) 413
t,. (1915) 421, 464
V. Gill; McKim, Ex parte (1911) 1747
V. Godinho (1911) 442
V. Godstone Rural Council (1911) 867
V. Golathan (1915) 437
V. Goodspeed (1911) 457
V. Green (1912) 460
t,. (1913) 402
V. Greening (1913) 419
V. Grizzard (1914) 436
V. Gross (1913) 418
V. Grosvenor (1915) 406, 423
V. Grubb (1915) 411
V. Gutwith (1914) 436
V. Halkett (1911) 1580
V. Hammond & Co.; Robinson, Ex
parte (1914) 69, 327
V. Hampton (1915) 410
V. Hancox (1913) 442, 443
V. Hanley Revising Barrister
(1912) 543
V. Harrison (1913) 462
V. Hay (1911) 402
V. Heard (1912) 430
V. Hedderwick (1913) 712
V. Hemingway (1912) 468
V. Hemming (1912) 463
V. Herion (1912) 1662
V. Hertfordshire Justices (1911) ... 795
V. Hertford Union; Pollard, Ex
parte (1914) 1129, 1220
V. Hewitt (1912) 416
V. Hickey (1911) 469
V. Hill (1911) 470
V. (1914) 435, 806
V. Hilliard (1914) 412
V. Holden (1912) 408
V. Hopkins ; Lovejoy, Ex parte
(1911) 1761
V. Hopper (1915) 421, 439, 464, 471
V. Horn (1912) 470
V. Howse (1912) 408
V. Hudson (1912) 449
V. (1915) 710
V. Hull Licensing Justices;
Glossop & Bulay, Lim., Ex parte
(1913) 755
V. Humphreys; Ward, Ex parte
(1914) 134
V. Hunton (1911) 866, 876
V. Hyde Justices (1912) 762
V. Income Tax Commissioners;
Essex Hall, Ex parte (1911) 1276
V. Ingleson (1915) 438
V. Ireland (1911) 465
V. Jackson; Pick, Ex parte (1918) 868
V. Jakeman (1914) 407
V. Joachim (1912) 416
V. Johnson (1911) 414
V. Jones (1911) 461
V. (1913) 483
V. Josephson (1914) 459
V. Jowsey (1915) 462
V. Keane (1912) 449
V. Keating (1911) 463
Rex V. Kensington Income Tax Com-
missioners ; Aramayo, Ex parte (1914) 1279
V. Ketteridge (1914) 440
V. King (No. 1) (1914) 411
V. - — ■ (No. 2) (1914) 446
V. Knight (1912) 462
V. Kuepferle (1915) 1651
V. Kupfer (1915) 1867
V. Kurasch (1915) 448
V. Landow (1913) 433
V. Larkins (1911) 465
V. Leach (1912) 466
V. ; Fritchley, Ex parte (1913)
774, 776, 798
V. Lee (1913) 462
V. Lee Kun (1915) 452
V. Lesbini (1914) 419
V. Levy (1911) 403
V. Lewis (1911) 441, 466
V. Leycester; Greenbaum, Ex parte
(1915) 7
V. Light (1915) 405
V. Light Railway Commissioners
(1915) 1225
V. Lilley ; Taylor, Ex parte (1911)... 793
V. Lincolnshire Justices (1912) 804, 1270
V. Little; Wise, Ex parte (1911) ... 791
V. Local Government Board (1911) 1114
V. ; Thorp, Ex parte
(1915) 897
■ V. Locke; Bridges, Ex parte
(1911) 872
V. Lockett (1914) 436
V. Lomas (1913) 403
V. London County Council; Keys,
Ex parte (1914) 472
V. ; London and
Provincial Electric Theatres, Ex parte
(1915) 178, 510
V. ; Thornton, Ex
parte (1911) 947
V. London County Justices (1912)... 1271
V. Londonderry Justices (1912)
789, 790, 797
V. Londonderry Recorder (1911) ... 151
V. Louth Justices (1914) 767
V. Lovitt (1911) ..: 203
V. Lowden (1914) 409, 1344
V. Lumley (1912) 420
V. Lydford (1914) 414, 458
V. M. (1915) 1682
V. Macaskie ; West Hartlepool Cor-
poration, Ex parte (1914) 542
V. McDonald (1913) 1114
V. Machardy (1911) 465
V. Mackenzie (1911) 433, 434
V. McLean (1911) 459
V. Madge; Isaacs, Ex parte (1913) 327
V. Manchester City Council; Batty,
Ex parte (1912) 972
V. Manchester Corporation; Wise-
man, Ex parte (1911) 947
V. Mann (1914) 422
V. Marriott (1911) 445
V. Marsham ; Pethick Laurence,
Ex parte (1912) 794
V. Martin ; Smythe, Ex parte (1911) 797
■ V. Mason (1912) 450, 455
V. Maxfield (1912) 429
V. May (1912) 421
TABLE OF CASES.
COL.
Eex V. Mellor (1914) 385
V. Messer (1912) 412, 413
V. Metcalfe (1913) 444
V. Metropolitan Police Commis-
sioner; Holloway, Ex parte (1911) ... 626
V. ; Pearce, Ex parte
(1911) 625
V. ; Randall, Ex
parte (1911) 625
V. Middlesex (Clerk of the Peace)
(1914) 845
V. Metz (1915) 1690
V. Mitchell (1912) 430
V. ; Livesey, Ex parte (1913)... 795
V. Molloy (1914) 407
V. Monaghan Justices (1914) 790
V. Monmouthshire Justices ; Neville,
Ex parte (1913) 761
V. Moran (1911) 430, 461
V. Moreton (1913) 406
V. Morrison (1911) 452
V. Mortimer (1911) 618
V. Murray (1914) 451
V. Myland (1911) 460
V. Neilson (1913) 428
V. Newell (1911) 877
V. Newington Licensing Justices ;
Makemson, Ex parte (1914) 758
V. Newton (1912) 469
V. (1914) 406
V. Noel (1914) 414
V. Norman (1915) 436
- V. O'Brien (1911) 457
V. O'Connor (1913) 434
V. Offlow Income Tax Commission-
ers (1911) 947
V. Olsson (1915) 424
V. Oppenheimer (1915) 1688
V. Palmer (1913) 418
V. Park (1915) 461
- V. Pavitt (1911) 433
V. Payne (1913) 446
V. Perry (1911) 445
V. Plowden; Braithwaite, Ex parte
(1911) 1746
V. Porter (1911) 423, 472
V. Preston Rural Council ; Long-
worth, Ex parte (1912) 887
V. Pridmore (1913) 403
V. Pritchard (1914) 415
V. Propert; Jones, Ex parte (1911) 930
V. Puck & Co. (No. 1) (1912) 435
V. (No. 2) (1912) 999
- V. Rabjohns (1913) 460
V. Radcliffe (1915) 943
V. Registrar of Companies; Paul.
Ex parte (1912) 229
V. Registrar of Joint-Stock Com-
panies; Bowen, Ex parte (1915) ... 229, 980
V. Rhodes; McVittie, Ex parte
(1915) 793
V. Richards (1911) 410, 595
V. ; Llanelly Corporation, Ex
parte (1915) 542. 544
V. Richardson (1913) 441
V. ■; Sherrv, Ex parte (1911) ... 661
V. Ridley (1911) 472
V. Rimes (1912) 470
V. Roberts ; Battersea Borough
Council, Ex parte (1913) 1256
V. Roberts; Stepney Borough Coun-
cil, Ex parte (1915) 1257
COL.
Rex V. Robinson (1915) 405
V. Rodley (1913) 454
V. Rogers (1915) 422
V. Rowland (1911) 447, 456
V. Rowlands; Beesley, Ex parte
(1911) •. 865
V. Ruffino (1912) 468
V. Ryan (No. 1) (1914) 424
V. (No. 2) (1914) 440
V. Sagar (1914) 407
V. St. Giles and St. George's
Bloomsbury Income Tax Commis-
sioners; Hooper, Ex parte (1915) 1293
V. Salford Hundred Justices;
Bolton Justices , Ex parte (1912) 765
V. Sanderson (1915) 456
V. Savidge (1912) 471
V. Schama (1914) 415
V. Seham Yousry (1914)
425, 436, 457, 468
V. Shaw (1911) 425
V. Shellaker (1914) 456
V. Shershewsky (1912) 471
V. Shoreditch Assessment Commit-
tee; Morgan, Ex parte (1911) 1003
V. Silverman (1914) 436
V. Simpson (1911) 464, 786
V. (1915) 420
V. ; Smithson, Ex parte
(1913) 785
V. Smith (1914) 425, 435, 450
■ V. (1915) 420
- V. ; Rex v. Weston (1911) 461, 466
V. ; c. Wilson (1911) 460, 466
V. Solomons (1911) 407
V. South Shields Licensing Justices
(1911) 7.36, 770, 775
V. Spencer (1915) 1691
V. Spokes; Buckley, Ex parte
(1912) 805
V. Spratling (1911) 806
■ V. Stafford Prison (Governor) (1911) 437
V. Staffordshire Justices; Ormskirk
Union, Ex parte (1912) 1138
V. Stephenson (1912) 422
V. Stoke-on-Trent (Town Clerk)
(1912) 543
V. Stubbs (1913) 462
V. Sullivan (1913) 432
— — V. Sunderland Corporation (1911)
369, 545
V. Sunderland Customs and Excise
Commissioners (1914) 749, 754
V. Sussex Justices; liangham, Ex
parte (1912) 766
V. Swifte (1913) 558
V. Syme (1911) 458
V. (1914) 441, 467
V. Taylor (1911) 409
V. (1915) 755
V. ; Rex v. Amendt (No. 2)
(1915) 755
V. Templer ; Howarth, Ex parte
(1912) 2013
V. Thetford County Court Regis-
trar; Brandon Gas Co.. Ex parte
(1915) 1989
V. Thomas; O'Hare, Ex parte
(1914) 791, 799
V. Thompson (1911) 443
V. (1914) 436
V. Thomson (1912) 445
TABLE OF CASES.
XXXVll
COL.
Bex V. Threlfall (1914) 425
V. Tonks (1915) 439
V. Totty (1914) 467
V. Trafford-Rawson (1911) 798
V. Tralee Urban Council (1913) ... 876
V. Trewholm (1913) 462
— — c. Tribunal of Appeal ; London
County Council, Ex parte (1912) 989
V. Trueman (1913) 425
V. Turner (1911) 427, 428, 429
V. Tynemouth Corporation ; Cowper,
Ex parte (1911) 878
V. Tyrone Justices (1912) 793
V. (1915) 60
v. Underwood; Beswick, Ex parte
(1912) 762
V. Vine Street Police Superin-
tendent (1915) 9
c. Walker (1912) 683
V. Waller (1911) 427
V. Walton (1911) 1377
V. Wann (1912) 469
V. Ward (1915) 405
V. Watson (1913) 449
V. Webber (1912) 427
V. Westfall (1912) 449
V. W'eston (1911) 426
V. Westwood (1913) 431
V. Whitaker (1914) 422,426
V. White (1911) 420
V. (1912) 415
V. Wigand; Wigand, In re (1913)... 684
V. Wilberforce (1915) 712
V. Williams (1913) 451, 466
V. (1914) 542, 544
V. ; Phillips, Ex parte (1914)... 786
V. Willmont (1914) 442
tj. Wilson (1912) 431
V. Wilts and Berks Canal Co. ;
Berkshire County Council, Ex parte
(1912) 947
V. Wiltshire Justices; Jay, Ex
parte (1912) 39,805
V. Winkel (1912) 443, 445
V. Wood (1912) 405
V. Wright (1915) 912
V. Yorkshire (W. E.) Justices;
Shackleton, Ex parte (1911) 1745
V. Young (1913) 430
Reynolds, In re; White, Lim., ex parte
(1915) 89
Richard Murray Hospital, In re (1914) ... 157
Richards, In re (1912) 1563
V. Bostock (1914) 1547
V. Morris (1914) 1925
V. Pitt (1915) 1943
V. Starck (1911) 613
V. Wrexham and Acton Collieries
(1914) 1015
Richardson, In re; Mahony v. Treacy
(1915) 33
1, In re; Richardson v. Richardson
(1915) 1828
, In re ; St. Thomas's Hospital, ex
parte (1911) 101, 823
c. Denton Colliery Co. (1913) 1936
Richmond v. Branson (1914) 1188, 1548
V. Richmond (1914) 942
Rickards v. Lothian (1913) 838
Rickerly v. Nicholson (1912) 165
Ricketts v. Tilling, Lim. (1914) 97(5
Ridge V. English Illustrated Magazine
(1913) 491
Ridgway Co. v. Amalgamated Press
(1912) 1601
Ridley's Agreement, In re; Ridley v.
Ridley (1911) 1408
Riera v. Riera (1914) 647
Rievaulx Abbey, The (1911) 1509
Rigel, The (1912) 1482
Rigney v. Peters (1915) 77
Riley u. Holland (1911) 1924
Risdale v. " Kilmarnock " (Owners)
(1914) 1900, 1905
Ritchie v. Kerr (1913) 1896
Ritson V. Dobson (1911) 601
Rix, In re; Rix v. Rix (1912) 1652
Robert v. Marsh (1914) 140
Roberts v. Battersea Borough Council
(1914) 1217
V. Gray (1912) 678
V. Thorp (1911) 1808
Roberts & Ruthven v. Hall (1912) 2017
Robertson v. Hawkins (1912) 980
V. Wilson (1913) 1740
Robin Electric Lamp Co. (No. 1), In re
(1914) 1104
, In re (No. 2) (1915) 1104
Robinson, In re; Clarkson v. Robinson
(No. 1) (1911) 1024
, In re; v. (No. 2) (1911) 1026
, In re ; McLaren v. Public Trustee
(1911) 854
, In re; McLaren v. Robinson (1911) 1655
, In re; Sproule v. Sproule (1912) ... 1646
, Ex parte (1912) 785
V. Beaconsfield Urban Council
(1911) 936, 1206
V. Benkel (1913) 143
■ V. Fenner (1914) 744
V. Morewood (1914) 713
V. Smith (1915) 1179
Settlement, In re; Gaunt v. Hobbs
(1912) 117, 338, 1025, 1643
Robinson & Co. v. Mannheim Insurance
Co. (1914) 12
Robl V. Palace Theatre (1911) 363
Robson V. Premier Oil and Pipe Line
Co. (1915) 10, 284, 1689
Roby, In the goods of (1912) 1768
Rochford Rural Council v. Port of
London Authority (1914) 1717
Rodger v. Paisley School Board (1912) ... 1912
Rodmell, In re; Safford v. Safford (1913) 1799
Roger V. Stevenson (1913) 1009
Rogers, In re; Public Trustee v. Rogers
(1915) 1590
, In re; Sussex (Sheriff), ex parte
(1911) 127
V. Holborn Borough Council (1914) 383
V. Martin (1911) 574
Roland, The (1915) 1699, 1706
Roles V. Pascall (1911) 1967
Rombach v. Rombach (1914) 16
Rombach Baden Clock Co. r. Gent (1915) 17
Romney, Lim., In re; Stuart v. The
Company (1915) 1184
Roney & Co., In re (1914) 1663
Roper V. Freke (1915) 1947
V. Works and Public Buildings
Commissioners (1914) 473
TABLE OF CASES.
COL.
Kopner & Co. c. Ronnebeck (1915) 1464
Rosalia, The (1912) 1486
Roscoe, Lim. v. Winder (1914) 1655
Rose, In re; Rose v. Rose (1915) 30
V. Kempthorne (1911) 417
■ V. Morrison & Mason, Lim. (1911) 1930
Rosefield v. Provincial Union Bank (1911) 147
Rosenbaum v. Metropolitan Water Board
(1911) 1069
Rosin V. Rank (1912) 391
Ross V. Eason (1911) 1164
V. Helm (1913) 913
Ross Urban Council v. Daniels (1913)... 930
Rothersand, The (1914) 10, 1693, 1697
Roumania, The (1915) 1704, 1711
Rourke v. Robinson (1911) 1047
Rouse V. Ginsberg (1911) 1664
Rowe, In re; Merchant Taylors Co. v.
London Corporation (1914) 162
V. Crosslev (1912) 51
Rowell V. Rowell & Son, Lim. (1912) ... 302
Rowley v. Tottenham Urban Council
(1914) 1730
Rowsell V. Metropolitan Water Board
(1915) 1728
Royal Albert Hall v. London County
Council (1911) 1596
Royal Bank of Canada v. Regem (1913) 194
Royal Bank of Scotland v. Greenshields
(1914) 1213
Roval College of Veterinary Surgeons v.
Kennard (1914) 981
Royal Exchange Buildings, Glasgow, In
re (1912) 231, 233
Royal Mail Steam Packet Co. v. Mac-
intyre (1911) 1467
Royal Masonic Institution v. Parkes
(1912) 964
Royal National Lifeboat Institution v.
Turver (1915) 160
Royal Warrant Holders' Association v.
Deane (1911) 1605
— V. Sullivan (1914) 1606
Rubber and Produce Investment Trust,
In re (1915) '. 314
Ruben, In re (1915) 1693
Rubens (or Monckton) v. Pathe Freres
Pathephone (1913) 362
Ruck V. Ruck (1911) 654
Rudd V. Bowles (1912) 489, 557, 810
V. Skelton Co-operative Society
(1911) 910
Ruoff V. Long & Co. (1915) 1067
Rushton V. Skey & Co. (1914) 706
Russell, In re; Public Trustee v. Camp-
bell 1787
V. Amalgamated Society of Carpen-
ters and Joiners (1912) 1624
Russon V. Dutton (No. 1) (1911) 922
V. (No. 2) (1911) 775
Rutherford v. Acton Adams a915) 1571
Ryall V. Kidwell (1914) 839
Ryan v. Hartley (1912) 1987
V. Oceanic Steam Navigation Co.
(1914) 1512
V. Thomas (1911) 351
V. Tipperary County Council (1912) 1755
Ryder, In re; Burton v. Kearsley (1914) 1815
Ryland's Glass Engineering Co. v.
Phoenix Co., Lim. (1911) 1182
COL.
S. V. S. (1912) 651
Saccharin Corporation v. Chemische
Fabrik von Heyden Actiengesellschaft
(1911) 1162
Sadler, In re; Furniss v. Cooper (1915) 1792
V. Roberts (1911) 965
Safford's Settlement, In re; Davies v.
Burgess (191-5) 1145
Sage & Co. V. Spiers & Pond, Lim.
(1915) 852
Sahler, In re (1914) 95,1034
Saint John Barony (1914) 1085
St. Anne, Limehouse (1915) 531
St. Catherine's College, Cambridge v.
Greensmith (1912) 225
St. Helens, The (1915) 1711
St. Matthew, Bethnal Green, Guardians
V. Paddington Guardians (1913) 1132
St. Paul, Bow Common (1912) 526
St. Stephen's, Hampstead (1912) 525
Saks V. Tilley (1915) 1352
Salaman v. Blair (1914) 1029
Salbstein v. Isaacs & Sons, Lim. (1915) 391
Sale, In re; Nisbet v. Philo (1913) 1587
Sales, In re; Sales v. Sales (1911) 641
V. Crispi (1913) 1195
Salford Corporation v. Eccles Corporation
(1912) 1632
Salmen, In re; Salmen v. Bernstein
(1912) 1830
Salt V. Tomlinson (1911) 902
Salter, In re; Rea v. Crozier (1911) 165
Salvin, In re ; Worsley v. Marshall (1912) 32
Samaradiwakara v. De Saram (1911) ... 210
Saminathan v. Palaniappa (1914) 211
Samson v. Aitchison (1912) 1205
Samuel's (Sir Stuart) Seat, In re (1913) 1086
Sanday & Co. v. British and Foreign
Marine Insurance Co. (1915) 1531
Sandbrook, In re; Noel v. Sandbrook
(1912) 323
Sandeman v. Tj'zack and Branfoot
Steamship Co. (1913) 1441, 1446
V. (1914) 1468
Sanders v. Sanders (1911) 657
Sanderson, In re; Sanderson v. Sander-
son (1915) 1145
V. Wright, Lim. (1914) 1910
Sandford v. Porter (1912) 1548
Sandow's Application, In re (1914) 1614
Sandwell Park Colliery Co., In re (1914) 287
Santen v. Busnach (1913) 1629
Saqui & Lawrence v. Stearns (1911) ... 726
Sarason v. Frenay (1914) 1106
Sardar Kirpal Singh v. Sardar Balwant
Singh (1912) 675
Sargant v. East Asiatic Co. (1915) 1442
Sargasso, The (1912) 1495
Sarpen, The (1915) 1475
Sassoon & Co. v. Western Assurance Co.
(1913) 1529
Saunders v. Bevan (1912) 281
Saunderson & Co. v. Clark (1913) 264
Savill V. Dalton (1915) 124, 390
Savory, Lim. v. World of Golf, Lim.
(1914) 366, 371
Scanlon v. Oceanic Steam Navigation Co.
(1914) 1512
Scarpetta v. Lowenfeld (1911) 744
Schaffenius v. Goldberg (1915) 12
Schawel v. Reade (1913) 1356
Schicht's Trade Mark, In re (1912) ... 1614
TABLE OF CASES.
COL.
Schiff, In the goods of (1915) 1772
Schlesien, The (1914) 1696, 1703
Schmitz V. Van der Veen & Co. (1915) 1687
Schneider & Co. v. Burgett & Newsam
(1915) 1349, 1367
Schofield V. Schofield (1915) 645
Schofield & Co. v. Clough & Co. (1913) 1990
Schuch V. Banks (1914) "..... 968
Schulze V. Tod (1913) 1385
Schwartz v. India Rubber, Gutta
Percha, and Telegraph Works, Lim.
(1912) 1890, 1940
Schweder v. Worthing Gas Co. (1911) 620
V. Worthing Gas, Light, and Coke
Co. (No. 2) (1912) 620
Schweppes, Lim., In re (1914) 240
Scott, In re; Paris Orleans Railway,
ex parte (1913) 97
, In re; Scott v. Scott (1911) 1810
, In re; v. (1914) 575
, In re; v. (No. 1) (1915)
39, 1319
, In re; v. (No. 2) (1915) 1802
, In re; v. (No. 3) (1915)
1323, 1326
V. Director of Public Prosecutions
(1914) 614
V. Jack (1913) 905
■ • V. Jameson (1915) 1746
V. Long Meg Plaster Co. (1915) 2023
V. Sanquhar and Kirkconnel Col-
lieries (1915) 1986
V. Scott (1911) 1810
V. (No. 1) (1913)
327, 632, 1797, 1798
V. (No. 2) (1913) 646, 1802
Scottish Insurance Commissioners v.
Church of Scotland (1914) 700
V. Edinburgh Royal In-
firmary (1913) 701
• V. McNaughton (1914) 702
Scottish National Insurance Co. v.
Poole (1912) 1526
Scottish Provident Institution v. Inland
Revenue (1912) 1278
Scottish Shire Line v. Inland Revenue
(1912) 1291
V. London and Provin-
cial Marine and General Insurance Co.
(1912) 1586, 1538
Scottish Widows Fund Life Assurance
Society v. Blennerhassett (1912) ... 36, 782
Scriven v. Hindley (1913) 71
Scullion V. Cadzow Coal Co. (1914) ... 1936
Seabrook, In re; Gray v. Baddeley
(1911) 1144
Seacombe, The (1912) 1509
Seal V. Alexander (1912) 963
V. British Orphan Asylum (1911)... 964
V. Gimson (1914) 1035
V. Turner (1914) 308
V. (1915) 380
Searle, In re; Brooke v. Searle (1912)... 818
, In re; Ryder v. Bond (1912) 940
V. Staffordshire County Council
(Clerk) (1911) 539
Seaton, In re; Ellis v. Seaton (1912) ... 1815
Sebright, In re; Sebright v. Brownlow
(Earl) (1914) 1394
Secretary of State for India v. Moment
(1913) 671
COL.
Seldon v. Wilde (1911) 1658
Seymour, In re ; Fielding v. Seymour
(1913) 486
Shackleton v. Swift (1913) 941
Shaffer v. Sheffield (1914) 1026
Shaftesbury Union v. Brockway (1913) 1134
Shamu Potter v. Abdul Kadir Ravuthan
(1912) 675
Shandon Hydropathic Co., In re (1911) 282
Shanley v. Ward (1913) 824
Sharer, In re; Abbott v. Sharer (1912) 554
Sharpe v. Durrant (1911) 619
V. Haggith (1912) 377
Sharpe, Lim. i;. Solomon, Lim.;
Sharpe, Lim.'s Trade Mark, In re
(1915) 1608, 1612
Sharpies v. Eason (1911) 1164
Sharpness New Docks and Gloucester
and Birmingham Navigation Co. v.
Worcester Corporation (1913) 1758
Shaw, In re; Public Trustee v. Little
(1914) 1658
, In re; Williams v. Pledger (1912) 1790
- V. Allen (1915) 87
• V. Crompton (1911) 862
V. Halifax Corporation (1915) 933
V. Holland (1913) 138
V. Royce, Lim. (1911) 268
V. Shaw (1914) 1808
V. Tati Concessions, Lim. (1913) ... 283
Shearburn v. Chertsey Rural Council
(1914) 1731
Shears v. Mendeloff (1914) 678
Shelfield (Earl), In re; Ryde v. Bristow
(1911) 1786
Sheffield District Railway v. Great Cen-
tral Railway (1911) 1227
Sheldon v. Needham (1914) 1906
Shepherd, In re; Mitchell v. Loram
(1914) 1804
V. Croft (1911) 896, 1674
V. Essex County Council (1913) ... 1371
Sheppard, In re; De Brimont v. Harvey
(1911) 1651
Sherry, In re; Sherry v. Sherry (1913) 1589
Shields, In re (1912) 99
, In re; Corbould-Ellis v. Dales
(1912) 1825
Shiers v. Stevenson (1911) 1376
Shillington v. Portadown Urban Council
(1911) 171
Shipley, In re ; Middleton v. Gateshead
Corporation (1913) 1814
Shipp V. Frodinghara Ii-on and Steel
Co. (1913) 1999
Shipton, Anderson & Co. v. Harrison
Brothers & Co. (1915) 13(56
V. Weil Brothers & Co.
(1912) 1361
Short V. Hammersmith Corporation
(1911) 1756
Shorter u. Shorter (1911) 1769
Shortt V. Wright (1911) 538
Shottland v. Cabins, Lim. (1915) 1033
Shotts Iron Co. v. Thomson (1915) 1011
Showell's Brewery Co., In re (1914) 244
Shrager, In re (1913) 105
Shreeve's Trade Mark, In re (1913) ... 1615
Shrimpton v. Hertfordshire County
Council (1911) .". 1378
xl
TABLE OF CASES.
COL.
Shuttleworth, In re; Lilley v. Moore
(1911^ 1563
Siam (King) Estate, In re (1912) 1773
Sidney v. North-Eastern Railway (1914) 846
Sier v. Bullen (1915) 131
Silber, In re (No. 1] (1915) 96, 1191
, In re (No. 2j (1915) 99
Silcock V. Golightly (1915) 2016
Silverman v. Hunt (1915) 7
Simcoe, In re; Vowler-Simcoe v. Fowler
(1913) 1807
Simla, The (1915) 1699
Simmons v. Liberal Opinion, Lim. ;
Dunn, In re (1911) 1553
Simner v. Watney (1912) 816
Simpson, In re; Clarke v. Simpson
(1913) 1401
V. Inland Bevenue Commissioners
(1914) 1304
Sims V. Midland Railway (1912) 1229
Sinclair v. Brougham (1914) 150
V. Fell (1912) 1409
Singer & Co. v. Fry (1915) 102
Sinnott V. Bowden (1912) 720
Sirrell v. Sirrell (1911) 662
Sitwell. In re; Worsley v. Sitwell (1913) 1818
Skailes v. Blue Anchor Line (1911) 1946
Skeate v. Slaters, Lim. (1914)... 42, 1176, 1181
Skelton v. Baxter (1915) VMO
Skrim, The (1914) 1494
Skrme v. Gould (1912) 331
Slack V. Hancock (1912) 1672
Slater, In re; Slater v. Jonas (1915) 1590
Slatford v. Erlebach (1912) 373
Sleath, In re; Loftus Shoe Co., ex parte
(1913) 127
Slee V. Meadows (1911) 923
Slingsby v. Att.-Gen. (1915) 631
V. Slingsby (1912) 1165
" Slogger " Automatic Feeder Co., In re ;
Hoare v. The Company (1915) 277
Sly, Spink & Co., In re; Hertslet's Case;
Macdonald's Case (1911) 245
Smeed, Dean & Co. v. Port of London
Authority (1913) 1512
Smelting Corporation, In re; Seaver v.
The Company (1915) 272
Smerkinich v. Newport Corporation
(1912) 1379
Smith, In re; Johnson v. Bright-Smith
(1914) 168
, In re; Smith v. Smith (1913)
578.583,1828
, In re; Wilson, ex parte (1911) ... 121
V. Buxton (191.5) 1944
V. Cock (1911) 357,1642
V. Colbourne (1914) 1679
V. Cooke (1915) 788
V. Davis & Sons, Lim. (1915) 1973,2003
- V. Fife Coal Co. (1914) 1935
V. General Motor Cab Co. (1911)... 1972
f. Horlock (1913) 1942
V. Incorporated Council of Law
Reporting (1914) 1289
V. Lion Brewery Co. (1911) 1286
V. Macnally (1912) 1372
V. Martin (1911) 1374,1.379,1381
V. Newman (1911) 541
V. Pickering (1914) 1743
V. Scottish Legal Life Assurance
Society (1912) 603
Smith V. Selwvn (1914) 5, 404
■ V. Smith' (1914) 630,642
V. Streatfeild (1913) 497
Smith-Bosanquet's Settled Estates, In re
(1912) 1303,1309
Smith, Coney & Barrett v. Becker, Gray
& Co. (1915; 53
Smith's Dock Co. v. Readhead (1912) ... 2031
Smith & Jones, Lim. v. Service, Reeve
& Co. (1914) 371,1102,1622
Smith, Stone & Knight v. London and
North- Western Railway (1914)
1237,1238,1255
Smollen's Trade Mark, In re (1912) ... 1017
Smyth V. Byrne (1914) 939
Snape, In re; Elam v. Phillips (1915) ...
1320,1329
Snell V. Bristol Corporation (1914) 1996
Snelling v. Norton Hill Colliery Co.
(1913) 1962
Sobey v. Sainsbury (1913) 1671
Societa Anonima Ungherese di Arma-
menti Marittimo v. Hamburg South
American Steamship Co. (1912) 1427
Societe Anonyme Beige des Mines
d'Aljustrel v. Anglo-Belgian Agency
(1915> 1689
Societe Anonyme Remorquage a Helice
V. Bennetts (1911) 481
Societe Coloniale Anversoise v. London
and Brazilian Bank (1912) 81
Societe des Hotels Reunis v. Hawker
(1914) 143,370,1577
Societe le Ferment's Application, In re
(1912) 1608
Softlaw V. Morgan (1914) 1031
Solicitor, In re (1915) 329
, In re (1915) 1555
, In re; Law Society, ex parte (1911) 1554
, In re; , ex parte (1913) 1554
Solomon, In re; Nore v. Meyer (1911)... 1648
Solway Prince, The (1914) .". 1520
Soper, In re; Naylor v. Kettle (1912)... 1790
Sorensen v. Gaff & Co. (1912; 1991
Sorfareren. The (1915) 1708
Sorrentino v. Buerger (1915) 1426
Soutar V. Reid (1913) 1008
South African Breweries v. Durban Cor-
poration (1912) 216,812
South Australia (State) v. Victoria
(State) (1914) 189
South Dublin Union Officers, In re (1913) 701
South-Eastern Railway v. London County
Council (1915) 846
South-Eastern and London, Chatham and
Dover Railway, Ex parte (1913) 1238
South-Eastern and Chatham Railway v.
Postmaster-General (1911) 1141
Southern Marine Insurance Association
V. "Gunford" Ship Co. (1911) 1538
South of England Natural Gas and Petro-
leum Co., In re (1911) 237
Southfield, The (1915) 1699
Southport and Lytham Tramroad Act,
In re; Hesketh, ex parte (1911) 1084
Southsea Garage. In re (1911) 305
South Wales and Liverpool Steamship
Co. V. Nevills Dock Co. (1913) 1516
Southwell, In re; Carter r. Hungerford
(1915) 1593
TABLE OF CASES.
xli
COL.
South-West Suburban Water Co. v.
Hardy (1913) 1721
Spain, In re (1915) 1766
Spalding V. Gamage (No. 1) (1914) 378
V. Gamage, Lim. (No. 2) (1915) ... 1600
Spanish Prospecting Co., In re (1911)... 258
Sparenborg v. Edinburgh Life Assurance
Co. (1911) 693
Sparkes, In re; Kemp- Welch v. Kemp-
Welch (1911) 1839
Sparrow v. Sparrow (1913) 651
Speak V. Speak (1912) 1781
Speke, In re; Speke v. Deakin (1913)... 1776
Spence v. Baird & Co. (1912) 1893
Spencer v. Registrar of Titles (1911) ... 483
Spiers & Pond v. Green (1912) 911
Spiers & Son, Lim. v. Troup (1915) ... 995
Spillers & Bakers, Lim. v. Great Western
Railway (1911) 1234
Spink, In re; Slater, ex parte (No. 1)
(1913) 119
, In re; , ex parte (No. 2) (1913) 119
Spottiswoode, Dixon & Hunting, Lim.
In re (1912) 320
Spring V. Fernandez (1911) 386
Spurge, In re; Culver v. Collett (1911) 761
Squire Cash Chemists, Lim. v. Ball,
Baker & Co. (1912) 256
Squire v. Hammond (1912) 327
Stacey v. Sherriu (1913) 1740
V. Metropolitan Water Board (1911) 1722
Stacey & Co. v. Wallis (1912) ... 137,258,1739
Staffordshire and Worcestershire Canal
Navigation v. Bradley (1911) 592
Stait V. Fenner (1912) 817,824
Stamford, Spalding, and Boston Banking
Co. V. Keeble (1913) 1042
Stamford and Warrington (Earl), In re;
Payne v. Grey (1912) 1117,1754
Standard Ideal Co. v. Standard Sanitary
Manufacturing Co. (1911) 198,1606
Standing v. Eastwood & Co. (1912) 1945
Stanley v. Bond (1913) 1796
V. Nuneaton Corporation (1913) ... 1020
Stanley and Nuneaton Corporation, In re
(1914) 59
Stansfeld v. Andrews (1911) 770
Stapleton v. Dinnington Main Coal Co.
(1912) 1927
Star Steam Laundry Co. v. Dukas (1913) 246
Statham v. Statham (1912) 639,671
Stathatos v. Stathatos (1912) 639,738
Stead (a Solicitor), In re (1911) 1559
, In re; Smith v. Stead (1913) 1562
V. Aykroyd (1911) 613,619
V. Smith (1912) 1559
Steele v. DowHng (1914) 537
V. Rogers (1912) 26
Steinberger v. Atkinson & Co. (1915)
1363, 1369
Stephen v. Allen Line Steamship Co.
(1911) 1480
Stephens v. Junior Army and Navy
Stores (1914) 830
Stephenson, In re; Poole v. The Com-
pany (1912) 262
V. Rossall Steam Fishing Co. (1915) 1949
Stephenson & Co., In re; Poole v. The
Company (No. 2) (1915) 825
COL.
Stepney and Bow Educational Founda-
tion (Governors) v. Inland Revenue
Commissioners (1913) 1312
Stepney Spare Motor Wheel Co. v. Hall
(1911) 1099
Stevens, In re; Stevens v. Stevens (1915) 1832
V. Cassell & Co. (1913) 1601
V. Hince (1914) 566
V. Insoles, Lim. (1911) 1958
V. National Telephone Co. (1914) 1583
V. Taverner (1912) 1548
Stevenson v. Brownell (1912) 746
V. Roger (1915) 1012
V. Stevenson (1911) 642
Stewart, In re; Stewart v. Bosanquet
(1913) 682
Stewart Precision Carburettor Co., In re
(1912) 240
Stewart v. M'Lean, Baird & Neilson
(1915) 1551
V. Williamson (1911) 834
Stickney v. Keeble (No. 1) (1915) 1675
t,. (No. 2) (1915) 37
Stirling v. Burdett (1911) 1215
V. Lord Advocate (1911) 429
V. Musgrave (1913) 1027
V. North (1913) 554
V. Norton (1915) 1189
V. Rose (1913) 1028
Stock V. Central Midwives Board (1915) 982
Stocks V. Wilson (1913) 146, 679
Stoddart v. Union Trust, Lim. (1912) ... 65
Stoke-upon-Trent Corporation v. Cheshire
County Council (1915) 683
Stoker and Morpeth Corporation, In re
(1915) 927
Stokes V. Stokes (1911) 556,659
Stone V. Burn (1911) 1618
Stoodley, In re; Hooson v. Stoodley
(1915) 1767
Storey v. Inland Revenue Commissioners
(1913) 1318
Stott (Baltic) Steamers, Lim. v. Marten
(1913) 1530
Stott, Ex parte (1915) 181
Stowe V. Marjoram (1911) 606
Strass V. Spillers & Bakers, Lim.
(1911) 1350
Stratford-on-Avon Corporation v. Parker
(1914) 569,577,822
Stratford Co-operative and Industrial
Society v. East Ham Borough (1915)... 686
Strathlorne S.S. Co. v. Baird & Sons,
Lim. (1915) 1439,1469
Street v. Royal Exchange Assurance
(1913) 1526
V. Williams (1914) 955
Strong V. Hadden (1915) 1766
Strutt V. Clift (1911) 1334
V. Strutt (1915) 645
Struve's Trusts, In re (1912) 1656
Stuart V. Halstead (1911) 342
Stubbings v. Chmies-Ross (1911 1 1767
Stubbs, Lim. v. Russell (1913) 491
Studley v. Studlcy (1913) 658
Sturges V. Warwick (Countess) (1913) ... 1183
Sturmey Motors, Lim., In re; Rattray
V. Sturmev Motors, Lim. (1912) 816
Sturmey 's Trustee v. Sturmey (1913)... 109
Sudlow, In re; Smith v. Sudlow (1914) 1()47
Sugden v. Leeds Corporation (1913) 1294
xlii
TABLE OF CASES.
COL.
Sullivan v. Sullivan (1912) 555
Summerlee Iron Co. v. Freeland (1913) ... 1971
V. Thomson (1913) 956
Sumner's Settled Estates, In re (1911) ... 1391
Sun Insurance Office v. Clark (1912; ... 1285
V. Galinsky (1914) 747
Sunderland, In re; Leech & Simpkinson,
ex parte (1911) 97
V. Glover (1914) 384
Sunderland (Duchess), In re; Bechoff,
David & Co. v. Bubna (1915) 15
Sunderland (Dowager Duchess), In re;
Michell V. Bubna (Countess) (1914) ... 573
Sunderland Corporation v. Charlton il913) 887
Sunderland Orphan Asylum v. Wear
(River) Commissioners (1912) 819
Surfleet's Estates, In re; Eawlings v.
Smith (1915) 167
Sutton, In re; Sutton v. Sutton (1912) ... 1648
V. Bowden (1913) 164, 526
Suzor V. Buckingham (1914) 496
Swan, In re; Eeid v. Swan (1911) 1787
, In re; Witham v. Swan (1915) 1-594
Swan Brewery Co. v. Regem (1914) 190
Swan & Edgar v. Mathieson (1911) 668
Swansea Vale " (Owners) v. Rice
(1911) 1915
Swavthling (Lord), In re; Samuel v.
Swaythling (1913) 1323
Swift T. David (1912; 291
Swifte r. Att.-Gen. for Ireland (No. 1)
(1912) 630, 783
V. (No. 2) (1912) ... 171
Swiss Bankverein v. Greaves (1915) 1181
Svdnev Municipal Council r. Fleary
"(1911) .*. 189
Svme V. Victoria Commissioner of Taxes
"a914j 189
Svmes, Ex parte (1911'. 1748
--- V. BrowQ (1913) 1375
Symington r. Caledonian Railway (1912) 1004
Symon r. Palmer's Stores (1912; 1167
V. Wemyss Coal Co. (1912) 1932
Tackey r. McBain (1912) 596
Taff Vale Railway v. Jenkins (1912) 1073
Tailors Cutters, In re (1912;' 702
Talbot de Malahide (Lord) v. Dunne
(1914) 789
Talbot V. Von Boris (1911) 138
Tamplin Steamship Co. v. Anglo-Mexican
Petroleum Products Co. (1915) ... 1435, 1437
Tamworth Colliery Co. t. Hall (1912) ... 1952
Tangj-e v. Tangve (1914) 638
Tarr, In re; DaVley r. Tarr (1912; 581
Tarrant v. Woking' Urban Council (1914) 880
Tarry v. Witt (1915) 391
Tate, In re; Williamson v. Gilpin (1913) 1794
Taunton and West of England Perpetual
Benefit Building Society and Robert's
Contract, In re (1912) 1668
Tavler v. Tayler (1912) 781
Taylor, In re (1912) 329, 408, 536
, Id re; Shaw t. Shaw (1914) 1808
, In re; Tavlor v. White (1911) ... 1784
V. Cripps (1914) 1975
V. Dawson (1911) 967
c. Denny, Mott & Dickson (1913) 56
V. London and North-Western Rail-
way (1912) 2013
COL.
Taylor v. Oil and Ozokerite Co. (1913) ... 237
V. Monk (1914) 616
V. National Amalgamated Approved
Society (1914) 395
V. Steel-Maitland (1913) 833
V. Western Valleys (Monmouth-
shire) Sewage Board (1911) 50
V. Wilson (1911) 768, 803
V. Wylie & Lochhead (1912) 1348
V. Yielding (1912) 48
v. Yorkshire Insurance Co. (1913) 1204
Taylor & Co. v. Clark (1914) 1895
Taylor, Plinston Brothers & Co. v. Plin-
ston (1911) 69, 328
Taylor's Patent, In re (1912) 1098
Taylor's Trusts, In re; Taylor v. Blake
(1912) 1783
Teale. In re; Blackburn, ex parte (1912; 117
V. Williams (1914) 883
Tean Friendly Society, In re (1914) ... 602
Tehran (Johore) Rubber Syndicate v.
Farmer (1912) 1282
Tekait Krishna Prasad Singh v. Moti
Chand (19]3) 676
Templeman v. Cocquerel (1913) 1622
Tempus, The '1913) 1503
Tennant v. Allardice (1915) 1011
Tennenf s Estate, In re (1913) 558
Teofani & Co.'s Trade Mark, In re (1913) 1610
Tergestea, The (1915) 1698
Termagant, The (1914) 1440
Terrill v. Parker (1915) 978
Terrv v. Moss'.^ Empires, Lim. (1915) ... 1596
—"v. Terry (1915) 651
Tewkesbury Gas Co., In re ; Tysoe v. The
Company (1911) 270
Tewkesbury Union n. Upton-on-Severn
Union (1912) 1133
Thames Conservators v. Kent (1915) 39
Thames Iron Works Co., In re ; Farrer v.
The Company (1912) 280
Thames and Mersey Marine Insurance
Co. V. British and Chilian Steamship
Co. (1915) 1.544
V. " Gunford "
Ship Co. (1911) 1538
V. Societa di
Navigazione a Vapore del Lloyd Aus-
triaco (1914) 1163
Thomas & Co., In re: The Company v.
Sully (1915) 232
Thomas, In re; Bartley v. Thomas (1911)
581, US')
, In re; Sutton, Carden & Co. v.
Thomas (1912) 484, 578
, In re ; Warner, e.x parte (1911) 114, 119
, In the goods of (1912) 1775
V. Ashbrook (1913) 1027
V. Harrowing S.S. Co. (1915) 1450
V. Hendon Rural Council (1911) ... 926
V. Portsmouth Ship Construction
Association (1912) 1624
Thomas, Lim. v. Houghton (1911) 917
Thomas Shipping Co. v. London and
Provincial Marine and General Insur-
ance Co. (1913) 1541
Thompson v. Bradford Corporation (1915)
1585, 1757
V. Dibdin (1912) 525
V. Equity Fire Insurance Co. (1911) 719
— — V. Johnson & Nephew, Lim. (1914) 1997
TABLE OF CASES.
xliii
COL.
Thompson v. Nelson, Lim. (1913) 1420
V. North-Eastern Marine Engineer-
ing Co. (1914) 1960
Thompson & Co. v. Pitt Taylor (1913) 1984
Tliomson v. Bent Colliery Co. (1912) ... 1573
V. Flemington Coal Co. (1911) ... 1929
V. Mutter, Howey & Co. (1913) ... 1897
Thomson's Estate, In re (1912) 1039
Thorman v. Dowgate Steamship Co.
(1911) 1453
Thorn v. Humm & Co. (1915) 1904
Thorne v. Sandow (1912) 1607
Thome & Son, Lim., In re (1914) 115
Thorneycroft v. Archibald (1913) 1008
Thornhill v. Steele-Morris (1911) 326
V. Weeks (No. 1) (1913) 867
^ P. (No. 2) (1913 867
- V. (No. 3) (1914) 867
i liorngate's Settlement, In re; Churcher
V. Att.-Gen (1915) 782
Thornton-Smith v. Motor Union Insur-
ance Co. (1913) 727
Thurn & Taxis (Princess) v. Moffitt
(1915) 7, 11
Thurrock, Grays, and Tilbury Joint
Sewerage Board v. Goldsmith (1915) ... 896
Thynne, In re; Thynne v. Grey (1911) 145
Ticehurst and District Water and Gas
Co. V. Gas and Waterworks Supply and
Construction Co. (1911) 1576
Tierney v. Tough (1914) 604
Tilt Cove Copper Co., In re; Trustees,
Executors, and Securities Insurance
Corporation v. The Company (1913) ... 275
Times Cold Storage Co. v. Lowther (1911) 388
Timpson v. Mowlem & Co. (1915) 1937
Tinline, In re; Elder v. Tinline (1912) ... 1823
Tipperary County Council v. Irish Insur-
ance Commissioners (1915) 704
Titterton v. Kingsbury Collieries (1911) 937
Todd V. Anderson (1913) 561
Todd, Burns & Co. v. Dublin Corporation
(1913) 969
Tofts V. Pearl Life Assurance Co. (1914) 695
Tolputt V. Mole (1911) 395
Tombs V. Bomford (1912) 1944
Tommi, The (1914) 10, 1093, 1697
Tongariro, The (1912) 1492
Tongue, In re ; Burton, In re ; Higginson
V. Burton (1915) 532
Toole, In the goods of (1913) 1769
Toppin's Estate, In re (1915) 552, 983
Toronto and Niagara Power Co. v. North
Toronto Corporation (1912) 194, 205
Toronto Power Co. v. Paskwan (1915) ... 962
Toronto Railway v. National British and
Irish Millers' Insurance Co. (1914) 719
Toronto Suburban Railway v. Toronto
Corporation (1915) 206
Torrington (Viscountess), In re (1913) ... 1324
Toscani, In the goods of (1911) 1771, 1773
Tottenham Urban Council v. Metropoli-
tan Electric Tramways (1913) 931
V. Nielson & Co. (1915) ... 929
Tough V. North British Railway (1914) 1056
Towndrow, In re; Gratton v. Maciien
(1911) 1643
Townsend v. Arnold (1911) 768
V. Lord Advocate (1914) 421
Townshend (Marquess), In re (1911) 639
Trade Mark No. 312065, In re (1912) 1610
COL.
Trafford's Settled Estates, In re (1915)
1390, 1392
Transvaal Lands Co. v. New Belgium
(Transvaal) Land and Development Co.
(1914) 249
Tratt V. Good (1915) 384, 752
Travers & Sons, Lim. v. Cooper (1914) 73, 155
Traynor c. Macpberson (1911) 617
V. (1914) 617
Tredegar Hall, The (1915) 1708
Tredegar Iron and Coal Co., In re (1915) 232
Tredegar (Lord) v. Roberts (1913) 1161
Trevanion, In re; Trevanion v. Lennox
(1910) 5
Trevor-Battve's Settlement, In re; Bull
V. Trevor-Battye (1912) 1592
Tribe, In re; Tribe v. Truro Cathedral
(Dean and Chapter) (1915) 1799
Trim Joint District School v. Kelly (1914) 1891
Trinder, In re; Sheppard v. Prance (1911) 1804
Trollope, In re; Same v. Trollope (1915) 1838
Tubbs. In re ; Dyke v. Tubbs (1915) 1402, 1593
Tucker v. Oldbury Urban Council (1912) 1976
Tuff V. Drapers Co. (1912) 529
Tugela, The (1913) 1483
Tullis & Son, Lim. v. North Pole Ice Co.
(1915) 44
Tumin v. Levi (1911) 1170
Turnbull v. Foster (1913) 1278
Turner v. Holder (1911) 77
V. Midland Railway (1911) 859
V. Port of London Authoritv (1913) 1998
V. Sampson (1911) ". 1207
V. Turner (1911) 573
Tustin V. Arnold (1915) 716
Tweddle & Co., In re (1911) 119, 313
Tydeman v. Thrower (1914) 686
Tyne Tees Shipping Co. t'. Whilock
(1913) 2013
Umona, The (1914) 1487
Umsinga, The (1911) 1419, 1507
, (1912) 1492
Underground Electric Railways v. Inland
Revenue Commissioners (1914) 1339
Union of Londoia and Smiths Bank v.
Swiss Bankverein (1913) 83
Union Steamship Co. of New Zealand r.
Wellington Harbour Board (1915) 214
United Buildings Corporation v. Van-
couver City (1914) 202
United London and Scottish Insurance
Co., In re; Brown's Claim (1915) ... 696, 714
, In re ;
Newport Navigation Co.'s Claim (1915) 716
V. Omnium
Insurance Corporation (1915) 732
United Machine Tool Co. v. Great Wes-
tern Railway (1914) 1233
United Methodist Church Ministers, In re
(1912) 700
United Mining and Finance Corporation
V. Becher (1911) 1556
United States Steel Products Co. v. Great
Western Railwav (1915) 153
Upcerne, The (1912) 1521
Upfill V. Wright (1911) 341,813
Upjohn V. Willesden Urban Council
(1913) 882, 929
xliv
TABLE OF CASES.
COL.
Upton-Cottrell-Dormer, In re; Upton v.
Upton (1915) 360, 533
Upton V. Henderson (1912) 340
Urban v. Inland Eevenue Commissioners
(1913) 1341
Ursula Fischer, The (1913) 1508
Usher's Wiltshire Brewery v. Bruce
(1914) 1287
Ussher v. Ussher (1912) 629
Utley, In re; Russell v. Cubitt (1912) ... 1659
Uxbridge Urban Council, Ex parte (1914) 530
Vacher v. London Society of Compositors
(1912) 37, 133, 1188, 1629
Vacuum Oil Co. v. Ellis (1914) 1046
Vaithinatha Pillai v. Regem (1913) ... 220, 672
Valdes, The (1915) 1495
Vancouver City v. Vancouver Lumber Co.
(1911) 200, 474
Van der Leeuw's Trade Mark, In re
(1911) 1614
Van Druten, Ex parte (1914) 1175
Vatcher v. Paull (1915) 219, 1150
Velazquez, Lira. v. Inland Revenue Com-
missioners (1914) 1340
Venner's Heating and Cooking Appli-
ances, Lim. V. Thorpe (1915) 308
Verrall, In re (1915) 168, 177, 1573
Vic Mill Co., Lim., In re (1913) 476
Vickerson v. Crowe (1913) 1423
Victor V. Victor (1912) Ill
Victor Mill, Lim. v. Shackleton (1911) ... 2027
Victoria Pier Syndicate v. Reeve (1912) ... 180
Victoria (Malaya) Rubber Estates, In re
(1914) 244
Victoria Society; Knottingley, In re
(1912) 305
Vincentelli v. Rowlatt (1911) 1348
Vine and General Rubber Trust, In re
(1913) 239
Vine V. National Motor Cab Co. (1913) ... 375
V. Wenham (1915) 1735
Vines v. Inglis (1915) 963
Ving ti. Robertson & Woodcock, Lira.
(1912) 297
Viola V. Anglo-American Cold Storage Co.
(1912) 278
Virginia Carolina Chemical Co. v. Nor-
folk and North American Steam Ship-
ping Co. (No. 1) (1911) 1443, 1465
(No. 2) (1912) ... 1444, 1465
Vissanji v. Shapurji Burjorji Bharoocha
(1912) 1210
Vogel, In re; Anglo-Eastern Contract
Co., ex parte (1913) 91
Volkl V. Rotunda Hospital (1914) 7, 11
Von Hatzfeldt-Wiklenburg (Princess) v.
Alexander (1912) 1570, 1664
Von Hellfeld v. Rechnitzer (1914) 1166
Von Taysen v. Baer, Ellissen & Co.
(1912) 1578
Voss and Saunders's Contract, In re
(1911) 848
Vulcan Car Agency v. Fiat Motors, Lim.
(1915) 1195
W. V. W. (1912) 631
Waite's Executors v. Inland Revenue
Commissioners (1914) 1305
COL.
Wake V. Dyer (1911) 953
W^akefield v. Duckworth (1914) 1551
Wakefield Rural Council v. Hall (1912) 1281
Wakelin v. London and South- Western
Railway (1912) 1074
Walford, Baker & Co. and Macfie, In re
(1915) 55
Walford, In re ; Kenyon v. Walford (1911) 1820
V. Walford (1912) 1820
Walker, In the estate of: Watson v.
Treasury Solicitor (1912) 1763
V. Cummings (1912) 1375
V. Gaskill (1914) 1765
V. Manchester and Liverpool Dis-
trict Banking Co. (1913) 86
V. Morgan (1912) 795, 797
V. Murphy (1913) 223, 224
V. Murray (1911) 1900
V. Reid (1911) 619
V. Retter (1911) 515
V. Sur (1913) 1159
V. Walker (1913) 651
Walker & Sons, Lim., In re (1914) 231
Wall V. Rederiaktiebolaget Luggude
(1915) 1429
Wall, Lim. v. Steel (1915) 2023
Wallace v. Bergius (1915) 1061
V. Midland Great Western Railway
(1912) 1250
Waller v. Stevenson (1912) 1139
Wallis V. Pratt (1911) 1357
V. Soutter & Co. (1915) 1974
Walmslev's Settled Estates, In re (1911) 1391
Walsh ^j.^Lock & Co. (1914) 1977
Walter, In re; Turner v. Walter (1912) 1826
Walters v. Smith (1913) 944
V. Staverlev Coal and Iron Co.
(1911) .". 1923
Walton V. South Kirkly, Featherstone,
and Hemsworth Colliery Co. (1912) ... 2014
Walton de Dale Urban Council v. Green-
wood (1911) 1262
Wandsworth Borough Council v. Golds
(1911) 987
Ward V. Brown (1915) 1812
V. Smith (1913) 969
Warde, In re; Warde v. Ridgway (1914) 1836
Wareham, In re; Wareham v. Brewin
(1912) 1804
Warham v. Selfridge & Co. (1914) 1179
Waring & Gillow v. Thompson (1913) ... 1571
W^arner Engineering Co. v. Brennan
(1914) 293
Warner v. Couchman (1911) 1907
Warner International and Overseas En-
gineering Co. V. Kilburn, Brown & Co.
(1914) 292
Warren v. Perkins (1912) 324
- V. Roxburgh (1912) 1988
Wartski v. Meaker (1914) 830
Warwick, In re; Warwick v. Crisp (1912)
80, 680
f. Cochrane (1915) 1077
Wassail V. Russell & Sons, Lim. (1915) 1963
Wassaw Exploring Syndicate v. Africa
Rubber Co. (1914) 211
Wasserberg, In re; Union of London and
Smiths Bank v. Wasserberg (1915) 623
Water of Leith Sewerage Commissioners
V. Midlothian (Assessor) (1914) 1259
Waters v. Braithwaite (1913) 25
TABLE OF CASES.
xlv
COL.
Waters v. Eddison Rolling Car Co. (1914) 1742
Watkin, In the goods of; Whitlark v.
White (1914) 1770, 1771
Watkins v. Cottell (1915) 153
V. Guest, Keen & Nettlefolds (1912) 1932
V. Naval Colliery Co. (1912) 1007
Watkins' Settlements, In re; Wills v.
Spence (1911) 29
Watkinson v. Wilson (1911) 351
Watling V. Lewis (1911) 398, 487
Watney, In re; W^atney v. Gold (1911) 1839
Watnev, Combe, Reid & Co. v. Berners
(1915) 751
Watson, In re; Schipper, ex parte (1913) 109
V. Beardmore & Co. (1914) 2024
V. Caledonian Railway (1910) 1235
V. Midland Railway (1911) 1241
• V. Treasury Solicitor; Walker's Es-
state (1912) 1763
Watson & Co.'s Application, In re (1911) 1185
Watson & Co. v. Joyce (1915) 1191
Watson, Laidlow & Co. v. Pott, Cassels
& Williamson (1913) 1100
Watson Steamship Co. v. Merryweather
(1913) 1430
Watts, In re; Davies v. Davies (1913) ... 1568
Wauthier v. W'ilson (1912) 137, 1211
Weaver & Co., Lim. v. Great Western
Railway (1911) 1246
Webb, In re; Board of Trade, ex parte
(1914) 98
V. Baldwin (1911) 1733
Webbe v. Crosse (1911) 1049
Webber v. Wansborough Paper Co.
(1913) 1919
Weber, Ex parte (1915) 8
Webster, In re; Pearson v. W^ebster
(1911) 170, 174
V. Bosanquet (1912) 1110
V. Cohen (1913) 19-59
V. Metropolitan Water Board (1912) 1728
V. Terry (1913) 1741
Wedgwood, In re; Allen v. Wedgwood
(1914) 170, 1639
, In re; Sweet & Cotton (1914) 160, 1788
Weekes v. Stead, Lira. (1914) 1902
Weeks v. Ross (1913) 1.511
Weightman's Settlement, In re; Astle v.
Wainwright (1915) 1153
Weiner v. Wilsons and Furness Leyland
Line (1911) 1438
Weir, Ex parte (191.3) 467
V. Fermanagh County Council
(1913) 879
V. North British Railway (1912) ... 2024
V. Thomas (1915) 1072
Weir and Pitt's Contract, In re (1911) ... 1322
Weldon c. " Times " Book Co. (1912) ... 490
V. Weldon (1911) 1813
Wellington, The (1915) 1478
Wells V. Smith (1914) 67, 596
V. Wells (1914) 133
Welsh V. Glasgow Coal Co. (1915) 1907
Wenge, In re (1911) 1769
Wentworth Loan Co. v. Lefkowitz (1911) 1024
Wernham v. Regem (1914) 765
Wertheim v. Chicoutimi Pulp Co. (1911)
477, 482
Wertheimer, In re ; Groves c. Read (1912) 571
Wesserberg, In re ; Union of London and
Smith's Bank v. Wesserberg (1915) ... 623
West, In re; Westhead v. Aspland (1913) 1831
West Cock, The (1911) 1477
West End Hotels Syndicate v. Bayer
(1912) 11.57
West India Electric Co. v. Kingston
Corporation (1914) 842
West V. Gwynne (1911) 826
V. West (1911) 565
W^estergaard v. Westergaard (1914) 740
Wester Moffat Colliery Co. v. Jeffrey
(1911) 1204
Western Electric Co. v. Great Eastern
Railway (1913) 1232
Western Steamship Co. v. Amaral,
Sutherland & Co. (1913) 1462
Westgate and Birchington Water Co. v.
Powell Cotton (1915) 1574
West Kent Main Sewerage Board v.
Dartford Assessment Committee (1911) 1261.
Westminster Motor Garage Co., In re;
Boyers v. The Company (1915) 279
Westminster School v. Reith (1914) .300
Westport Port and Harbour Commis-
sioners t). Irish Insurance Commis-
sioners (1915) 701
West Yorkshire Bank v. Isherwood
(1912) 1889
West Yorkshire Darracq Agency, Lim.
V. Coleridge (1911) 336
West Yorkshire Tramways Bill, In re
(1912) 1085
Wetherman v. London and Liverpool
Bank of Commerce (1914) 74
Weymouth Waterworks Co. v. Coode
(1911) 300
Whaley v. Great Northern Railway (1913) 931
Whatling v. Rees (1915) 902
Wheatley v. Part (1911) 1028
Wheeler tJ. Morris (1915) 1071
V. Stratton (1912) 1884
Wheeler, Ridley & Co. v. Dawson (1912) 2014
Whenman v. Clark (1915) 1269
Whitaker, In re ; Pender v. Evans (1911) 582
White, In re (1914) 1775
, In re; Theobald v. White (1913)
46, 1802
, In re; White v. White (1914) 584
V. Bown (1912) 534, 544
V. Jackson (1915) 1748
V. London General Omnibus Co.
(1914) 1083, 1158
V. Paine (1914) 1803
V. St. Marylebone Borough Council
(1915) 889
V. South Stoneham Union (1915) ... 1267
V. Steadman (1913) 23
V. Stenning (1911) 390
V. Victoria Lumber and Manufac-
turing Co. (1911) 219
V. W^illiams (1912) 1347, 1427, 1436
V. Wiseman (1912) 1998
Whitefield v. Lambert (1915) 1906
Whiteford's Settlement, In re; White-
ford V. Whiteford (1915) 1121
Whitehead, In re; Whitehead v. Street
(1913) 1829
V. Wellington (1911) 366
Whitehorn v. Davison (1911) 412, 1353
Whiteley, In re; London (Bishop) v.
Whiteley (1911) 162
V. Delaney (1914) 1044
Whiteman v. Director of Public Prosecu-
tions (1911) 1025
xlvi
TABLE OF CASES.
COL.
Whiteman v. Newev (1912) 611
V. Sadler (1911) 1023
Whiter, In re; Windsor v. Jones (1911) 1779
Whitfield, In re ; Hill v. Mathie (1911) ... 664
V. Lambert (1915) 1906
Whiting, In re ; Ormond v. de Launay
(1913) 1805
V. Ivens (1915) 26
Whittaker v. London County Council
(1915) 977, 1633
Whittington Gas Co. v. Chesterfield Gas
and Water Board (1913) 621
Wiebalck r. Todd (1913) 568
Wiehe v. Dennis (1913) 74
Wiffen V. Bailey (1915) 945
Wigan, In re; Extraordinary Tithe
Eedemption Act, 1886, ex parte (1911) 529
Wigglesworth v. Wigglesworth (1911) ... 655
Wilberforce, In re; Wilberforce v.
Wilberforce (1914) 1676
Wilcox V. Wallis Crown Cork and Syphon
Co. (1914) 398
Wild V. Tucker (1914) 99, 123, 341
Wilder v. Wilder (1912) 670
Wild Eose, The, and the J. M. Stubbs
(1915) 1522
Wiles V. Ocean Steamship Co. (1913) ... 1448
Wilkes V. Spooner (1911) 1670
Wilkie r. King (1911) 1628
Wilkie's Settlement, In re; Wade v.
Wilkie (1913) 1402
Wilkins, Lim. v. Weaver (1915) 974
Wilkinson v. Car and General Insurance
Corporation (1913) 725
V. City of Glasgow Friendly Society
(1911) 600
Wilkinson Sword Co., In re (1913) 294
Will V. United Lankat Plantations Co.
(1913) 299
Willesden Urban Council v. Morgan
(1915) 969
Williams' Settlement, In re; Williams
V. Williams (1911) 1810
Williams, In re; (1911) 1187, 1407
, In re; Cunliffe v. Williams (1914)
533, 1818
, In re; Metcalf v. Williams (1914) 1793
, In re: Williams v. Williams (1912) 579
V. Agius, Lim. (1914) 477
V. Assheton Smith (1913) 1908
V. Baker (1911) 918
V. Biddle (1915) 128
V. Bwllfa and Merthyr Dare Steam
Collieries (1914) 2026
c. " Duncan " (Owners) (1914) ... 1950
V. Delohery (1913) 185
V. Evans (1911) 1768
V. Friend (1912) 908
V. Giddy (1911) 188
V. Gosden (1913) 973
V. Jones (1911) 1052
V. Lewis (1915) 837
D. Linotype and Machinery, Lim.
(1915) 961
V. Lister & Co. (1914) 1198
V. Llandudno Coaching and Car-
riage Co. (1915) 1905
c. " Maritime " (Owners) (1915) ... 1947
V. Moss Empires, Lim. (1915) 331
V. Wallis (1914) 836
V. Williams- Wynn (1915) 983
V. Wood (1914) 1743
COL.
Williams & Agius, In re (1913) 477
Williams & Co., In re; Official Eeceiver,
ex parte (1913) 118
Williamson v. Stewart (1912) 835
Willis, In re; Spencer v. Willis (1911)
1647, 1805
Willis, Faber & Co. v. Joyce (1911) ... 1203
Willis V. Eotherham Corporation (1911) 928
Willmott V. London Road Car Co. (1911) 824
Willoughby, In re ; V/illoughby v. Decies
(1911) 1837
Wills, In re; Wills v. Hamilton (1915) 1689
V. Great Western Eailway (1915)... 1231
V. Mc Sherry (1912) 800, 802, 1421
— , The (No. 66) (1914) 1489
Wilmerson v. Lynn and Hamburg Steam-
ship Co. (1913) 1941, 2011
Wilson, In re; Marum, ex parte (1915) 14
, In re (1915) 132
, In re; Twentyman v. Simpson
(1913) 175
, In re; Wilson v. Clark (1915) 664
V. Amalgamated Society of En-
gineers (1911) 372, 1622
V. Church (1912) 1187
V. Conolly (1911) 610
V. Delta Corporation (1913) 201
V. Glasgow and South-Western
Eailway (1915) 1063
V. Hodgson's Kingston Brewery
Co. (1915) 1067
V. Nunburnholme (1912) 1811
V. Otto Thoresen's Linie (1911) ... 1452
V. Eagosine Co. (1915) 16, 1684
V. Scottish Typographical Associa-
tion (1912) 1623
V. Shepherd (1913) 688
V. Wilson (1911) 672
Wilson Brothers, Bobbin & Co. v. Green
(1915) 1541
Wilson, Sons & Co. v. " Galileo " (Cargo
Owners) (1914) 1443
Wilsons and Clyde Coal Co. v. Cairnduff
(1911) 2012
Wimble v. Eosenberg (1913) 1361
Wimperis, In re; Wicken v. Wicken
(1914) 664, 1826
Windham's Settled Estate, In re (1912) 1404
Windlesham Urban Council v. Seward
(1913) 1752
Windschuegl v. Irish Polishes, Lim.
(1914) 277
Windsor, In re ; Public Trustee v. Wind-
sor (1913) 1799
Windsor, Essex and Lake Shore Eapid
Eailway v. Nelles (1915) 190
Winnipeg Electric Eailway v. Winnipeg
City (1912) 192
Winter v. Wilkinson (1915) 604
Winterbottom v. Allwood (1914) ... 909, 910
Winters v. Addie & Sons' Collieries
(1911) 1982
Wise, In re; Smith v. Waller (1912) ... 1139
Witham v. Notley (1913) 653
Witty, In re; Wright v. Eobinson (1913) 1151
Wixon V. Thomas (1912) 1269
Woking Urban Council (Basingstoke
Canal) Act, 1911, In re (1913) 1713
Wolenberg v. Eoyal Co-operative Collect-
ing Society (1915) 696
Wolf V. Carr, Parker & Co. (1915) 1685
Wolf & Son, Lim., In re (1912) 243
TABLE OF CASES.
xlvii
COL.
Wolfe V. Lowther (1915) 1030
Wolfenden v. Mason (1913) 1337
Woltereck v. Woltereck (1912) 643
Wood, In re; Leslie, Lim., ex parte
(1915) 99
, In re Wodehouse v. Wood (1913) 1837
V. Boulcott (1911) 29
X,. Clydesdale Bank (1914) 80
V. Conway Corporation (1914) 1078
V. Lewis (1914) 667
V. Prestwich (1911) 1374
V. Victoria Pier and Pavilion (1913) 355
Wooda, The (1915) 1505
Woodbridge v. Bellamy (1911) 349, 1547
Woodcock V. London and North- Western
Eailway (1913) 2009
V. Woodcock (1915) 648
Woodhouse v. Hooney (1915) 857
V. Midland Eailway (1914) 1993
Woodhouse & Co. ». Woodhouse (1914) ... 508
Woodman v. Pwllbach Colliery Co. (1914) 1738
Woodroff, In re (1915) 96
Woods V. Wilson, Sons & Co. (1915)
1896, 1974
c. Winskill (1913) 310
Woodward, In re; Kenway v. Kidd
(1913) 562
V. Battersea Borough Council (1911) 687
Woodward, Lira., In re; Woodward,
Lim. V. Boulton Macro, Lim. (1915) ... 1017
Woolley, In the goods of (1911) ... 1772, 1774
Woolstanton United Urban Council v.
Tunstall Urban Council (1911) 933
Wootton V. Lichfield Brewery Co. (1915) 777
V. Sievier (No. 1) (1913) 1173
P. (No. 2) (1913) 374
c. (No. 3) (1915) 41
Worcester College, Oxford v. Oxford
Canal Navigation (1911) 399
Worcester County Council v. Notley
(1914) 920
Wordie's Trustees v. Wordie (1915) 169
World of Golf, Lim., In re (1914) 306
Worthington, In re; Path^ Frferes, ex
parte (1914) 293
Wray v. Taylor Brothers & Co. (1913) ... 1914
Wrigglesworth v. Kegem (1911) 750
Wright V. Kerrigan (1911) 1976
V. Lindsay (1912) 2009
V. Sneyd Collieries (1915) 1974
Wrottesley's Settlement, In re; Wrottes-
ley V. Wrottesley (1911) 1412
Wyatt V. Att.-Gen. of Quebec (1911) ... 590
Wylie V. Inland Revenue (1913) 1291
Wynn v. Conway Corporation (1914) 812
X. L. Electric Co., In re; Wiener v.
X. L. Electric Co. (1913) 41
X's Petition of Right, In re (1915) 1681
Yager v. Guardian Assurance Co. (1912) 717
Yap Hon Chin v. Jones-Parry (1911) ... 218
Yeatman v. Homberger (1912) 1604
Yorke, In re; Barlow v. Yorke (1911) ... 1392
V. Regem (1915) 473
Yorkshire (N. R.) County Council and
Middlesborough County Borough Coun-
cil, In re (1913) 875
Yorkshire Insurance Co. v. Metropolitan
Amalgamated Estates, Lim. (1912) ... 1052
Yorkshire (W. R.) Rivers Board v. Heck-
mondwike Urban Council (1914) 1719
( ) V. Linthwaite
Urban Council (No. 1) a915) 687, 1718
(No. 2) (1915) ". 1719
Young, In re; Brown v. Hodgson (1912) 28
, In re; Fraser v. Young (1913)
1412, 1833
, In re; Young v. Young (1914) 666, 1833
V. Brownlee & Co. (1911) 250
V. Gentle (1915) 781
V. Liverpool Assessment Committee
(1911) 1258
(or Potts) V. Niddrie & Benhar Coal
Co. (1913; 1951
V. Peck (1912) 1630
V. White (1911) 1879
Youngs, Crawshay & Youngs, Lim. v.
Brooke (1915) 1287
Zamco V. Hammerstein (1913) 1595
Zamora, The (1915) 1698
Ziman v. Komata Reef Gold Mining Co.
(1915) 274, 1190
Zinc Corporation v. Hirsch (1915) 11
V. Skipwith (No. 1) (1914)... 10
(No. 2) (1914) 12
A DIGEST
ALL THE CASES REPORTED
DUEING THE YEAKS
1911 TO 1915
ACCIDENT.
See MASTEE AND SEKVANT ; NEGLI-
GENCE; WOEKMEN'S COMPENSATION.
ACCORD AND
SATISFACTION.
See also Vol. I. 5, 1070.
Debt— Offer by Third Party to Creditor of
Smaller Sum in Satisfaction — Acceptance by
Creditor of Smaller Sum— Right of Creditor to
Sue Debtor for Balance of Debt.] — The defen-
dant, an officer of the British Army, when on
service in India gave to the plaintiffs, who
were a firm of money-lenders there, a promis-
sory note for 1,500 rupees and interest, to
secure repayment of a sum advanced by them
to him. The father of the defendant, in re-
sponse to an application by the plaintiffs,
made them an offer of a less sum " in full
settlement " of their claim against the defen-
dant. The plaintiffs declined that sum, and
again asked for what amount the defendant's
father would " settle " his son's debt. The
father replied offering 650 rupees, and inclosing
a draft for that amount. The plaintiffs cashed
the draft and retained the proceeds. The
plaintiffs then brought an action against the
defendant on the promissory note, claiming the
amount thereof and interest, less the amount
of the draft -.—Held, that the plaintiffs having
made a settlement with the father could not
recover from the defendant, whose debt was
thereupon extinguished. Hirachand Punam-
chand v. Temple, 80 L. J. K.B. 1155; [1911]
2 K.B. 330; 105 L. T. 277; 55 S. J. 519;
27 T. L. E. 430— C.A.
Observations in Cook v. Lister (32 L. J.
C.P. 121; 13 C. B. (N.s.) 543) considered and
adopted. Day v. McLea (58 L. J. Q.B. 293;
22 Q.B. D. 610) distinguished. Goddard v.
O'Brien (9 Q.B. D. 37} questioned by
Fletcher Moulton, L.J. lb.
ACCUMULATIONS.
See also Vol. I. 144, 1074.
Accumulation Directed during Lives of An-
nuitants— Period Defined by Will not Ex-
tended by Codicil giving Further Annuity.] —
By his will a testator directed his trustees to
pay annuities to five persons named therein,
and to accumulate the surplus income of his
estate during their lives and the life of the
survivor. By a codicil he directed a sixth
annuity to be paid. The testator died in 1868,
the last survivor of the will annuitants in 1882,
and the codicil annuitant in 1911 -.—Held, that
the codicil could not be read into the earlier
part of the will so as to extend the period of
accumulation beyond 1882, and that the
accumulations of surplus income made since
that date were not undisposed of, but fell into
residue. Cressicell, In re; Lineham v.
Cresswell, 58 S. J. 360— C.A.
ACCUMULATIONS.
Death of Last Annuitant — Accumulations
Beyond the Statutory Period — Residuary Gift.]
— A testator gave five annuities to be paid
" out of the residuary estate and my bank
shares " and " subject as aforesaid " directed
the surplus income to be accumulated until
the death of the last annuitant, and disposed
of the residue. One annuitant lived beyond
the period of accumulation allowed by the
Thellusson Act : — Held, that there was an in-
testacy as to the income accumulated beyond
the period. Pope, In re; Sharp v. Marshall
(70 L. J. Ch. 26 : [1901] 1 Ch. 64). not followed
on the question of the bank shares. Cababe,
In re; Cababe v. Cababe, 59 S. J. 129—
Neville, J.
Accumulation Due to Trustees' Inability to
Find Proper Objects of a Discretionary Trust.]
— A testator, after providing for the disposal
of the greater part of his estate among his '..
children in the form of legacies, directed his
trustees " from time to time, as they think
proper, to make such special payments out of
the free residue and remainder of my estate to
such of my children or children's children as
they may think most deserving, with special
instructions to relieve any of them who may
appear to be in want, provided always that
the}' have not brought themselves into such
circumstances by their own misconduct. My
great desire is to assist merit and thrift, and
not to acknowledge indolence or folly." The
will contained no further directions as to the
disposal of the residue. For a period of
twenty-one years from the testator's death the
income of the residue was accumulated, no
distribution thereof being made by the trustees,
owing to the fact that they were not satisfied
that among the testator's children and grand-
children any cases existed which warranted
payments out of the trust funds. In proceed-
ings by the trustees, in which the children
maintained that the direction as to the residue
was void for uncertainty, or, otherwise, that
further accumulation of the income was pro-
hibited by the Thellusson Act. — Held, first,
that the word " deserving " in the clause !
quoted meant deserving of pecuniary assist- !
ance, and accordingly that that clause com-
mitted an intelligible and workable discretion
to the trustees, and was not void for uncer-
tainty; and secondly, that as the accumulation
of the income was due, not to the direction,
express or implied, of the testator, but to the
extraneous circumstance that no occasion for
payment out of income had, in the opinion of
the trustees, as yet arisen, the Thellusson Act
did not apply. Whether the trust as to the
residue was " charitable," qucere. Mitchell's
Trustees v. Eraser, [1915] S. C. 350—
Ct. of Sess.
Savings out of Income — Thellusson Act.] —
A testator conveyed the residue of his estate to
trustees and directed them to apply the annual
income in forming an " Institute " for the
town of L.. consisting of a library, reading
room, &c. The trustees were " authorised and
empowered to set apart and accumulate " the
balance of income from such residue for the
purpose of erecting a suitable building for the
institute, but no power was given to them to
employ the capital for this purpose. The
trustees accordingly accumulated the income.
More than twenty-one j^ears after the testa-
tor's death the trustees applied for authority
to uplift capital and apply it for the purpose
of erecting such an institute : — Held, that as
the Thellusson Act strikes at accumulations,
the directions of the trust, so far as they
necessitated accumulations, were gone after
twenty-one years, but that the Thellusson Act
does not prevent savings out of income, and
accordingly that the trustees might still con-
tinue to make savings out of income.
Lindsay's Trustees, In re, [1911] S. C. 584
— Ct. of Sess.
Trust to Accumulate During Minority —
Minor who, if of Full Age, would be Entitled
to the Rents and Profits — Minor Born after
Testator's Death.] — Section 1 of the Accumu-
lations Act, 1800, renders void any direction
by a settlor or testator for the accumulation of
the income arising from a fund for a longer
term than (frjfer alia) during the minority of
any person who would for the time being, if of
full age, be entitled to the income of the fund.
Under this provision a testator may validly
direct accumulation during the minority of a
person not born until after his death. The
dictum to the contrary in Haley v. Bannister
(4 Madd. 275, 277) disapproved. The decision
in Haley v. Bannister (supra) was on the
special facts of that case, and is not an autho-
rity for the general principle laid down in the
headnote. Cattell, In re; Cattell v. Cattell
or Dodd, 83 L. J. Ch. 322; [1914] 1 Ch. 177 ;
110 L. T. 137; 58 S. J. 67— C.A.
In determining the validity of a direction to
accumulate, the Court is not concerned to
consider what might have happened under it,
but only whether the direction has caused or
is about to cause accumulation for a longer
term than is allowed by the Accumulations Act,
1800. Jagger v. Jagger (53 L. J. Ch. 201;
25 Ch. D. 729) discussed and not followed. lb.
■Will — Leaseholds — Reserve Fund for Dilapi-
dations— Validity.] — Where there is a direc-
tion in a will that a certain portion of the rents
of leasehold property should be invested every
year, so as to accumulate for the purpose of
creating a fund to protect the trustees against
uncertain claims for dilapidations under the
leases, the trust to accumulate is valid and does
not come within the Accumulations Act, 1800.
Varlo V. Faden (29 L. J. Ch. 230: 27 Beav.
255) followed. Hurlbatt, In re; Hurlbatt v.
Hurlbatt, 80 L. J. Ch. 29; [1910] 2 Ch. 553;
103 L. T. 585— Warrington, J.
Settlement in Tail — Persons who " shall
be entitled to possession and enjoyment " —
" Under the trusts and limitations of this my
will" — Estate Tail in Possession — Disentail-
ing Assurance — Cesser of Accumulations. i —
Testator devised his real estate in strict settle-
ment with an estate tail to the first and other
sons of H. A. T., and directed the trustees to
accumulate the rents and profits and the in-
come of residuary personalty upon trust for
the persons who at the end of the term during
which accumulation was directed should
" under the trusts and limitations of this my
ACC UMULATIOXS— AFFIDAVIT.
will be entitled to the possession and enjoy-
ment " of the real estate devised by the will.
The first estate tail had vested in possession
in the plaintiff, and he had barred the entail
before the end of the period during which
accumulation was directed : — Held, that the
interest of the trustees was not an estate prior
to the estate tail and that the plaintiff was
still in possession under the will, although
now owner in fee ; that at the end of the
period of accumulation the plaintiff, his heirs
or assigns, could be the only persons entitled
to possession of the realty, and that there-
fore the Court would not enforce the trust for
accumulation, but that the plaintiff was
entitled to be let into possession of the rents
and profits at once. Trevanion, In re;
Trerayiion v. Lennox. 80 L. J. Ch. 93; [1910]
2 Ch. 538; 103 L. T. 212; 54 S. J. 749—
Joyce, J.
ACQUIESCENCE.
Loss of Rights under Covenant." — See
Covenant.
ACTION.
See also Vol. I. 178.
Cause of — Criminal Offence — Felony — Ap-
plication to Dismiss Action — Stay of Proceed-
ings until Defendant Prosecuted.1 — Where a
statement of claim is based on a felony alleged
to have been committed by the defendant
against the plaintiff, the Court will stay further
proceedings in the action until either the
defendant has been prosecuted for the felony
or a reasonable excuse has been shewn for
his not having been so prosecuted. Smith v.
Selwyn. S3 Ij. J. K.B. 1339; [1914] 3 K.B. 98;
111 L. T. 195— C.A.
Whether Retrospective — Crov?n Grant of
Land — Waiver of Rights of Crown.]— The
respondent, who held land under a grant from
the Crown by which all mines and minerals
were expressly reserved to the Crown, brought
an action against the appellants for the
removal of minerals from under his land.
After the commencement of the action he
obtained a statement in writing from the
Crown that no claim was made on the part of
the Crown to the minerals in question : — Held,
that this statement had no retrospective effect
so as to vest in the respondent a title to the
minerals at the commencement of the action,
and that the action would not lie. Fernando
V. De Silva, 82 L. J. P.C. Ill; 107 L. T. 670
— P.C.
No Title at Date of Issue of Writ — Subse-
quent Acquirement of Title — Amendment.]
A, believing that X died intestate, took out
administration to him, and commenced an
action as administrator against C. C, who had
been aware that X left a will appointing him
executor, declared that fact for the first time
in his defence, and thereupon A took out
administration with the will annexed (C
having renounced), and sought to amend the
pleadings accordingly : — Held, that A's appli-
cation must be refused, as at the date of the
issue of the writ she had no title to sue.
Creed v. Creed, [1913] 1 Ir. K. 48— Barton, J.
ADEMPTION.
See WILL.
ADMINISTRATION.
See EXECUTOR; TRUST AND TRUSTEE:
WILL.
ADMINISTRATION
BOND.
See WILL.
ADMIRALTY.
See SHIPPING.
ADULTERATION.
See LOCAL GOVERNMENT.
ADVANCEMENT.
See SETTLEMENT.
ADVOWSON.
See ECCLESIASTICAL LAW,
AFFIDAVIT.
See EVIDENCE.
AGEICULTUEAL HOLDINGS— ALIEN.
8
AGRICULTURAL
HOLDINGS.
See LANDLORD AND TENANT.
ALIEN.
I. Registration, 7.
II. Expulsion, 7.
in. Status of Alien Enemies, 8.
IV. Contracts by and with Alien Enemies, 10.
V. Proceedings by and against, 11.
I. REGISTRATION.
Omission to Give Full Name.] — The Aliens
Restriction Order made under the Aliens
Restriction Act, 1914, contains a provision
requiring aliens to register their names, and
non-compliance with this requirement is an
offence : — Held, that, if in registering his
name, an alien, for the purpose of concealing
his identity, does not give his full name, he
commits an offence, even if he gives the name
by which he is generally known. Silverman
V. Hunt, 31 T. L. R. 410—0.
Effect of Registration — Right to Sue in
Courts of this Country.] — The effect of the
registration of an alien enemy under the Aliens
Restriction Act, 1914, and the Aliens Restric-
tion Order, 1914, is that the registered alien
not only has licence to remain in this country,
but is forbidden to leave it without special
permission. A registered alien enemy can
therefore enforce a personal right in the Courts
of this country, notwithstanding the existence
of the state of war, as being allowed to remain
in this country and exonerated from the dis-
abilities of enemies, on the principle stated in
HalVs International Law (6th ed.), p. 388.
Thurn and Taxis (Princess) v. Moffitt, 84 L. J.
Ch. 220; [1915] 1 Ch. 58; 112 L. T. 114;
59 S. J. 26; 31 T. L. R. 24— Sargant, J.
S. P. Volkl V. Rotunda Hospital, [1914]
2 Ir. R. 543— K.B. D.
II. EXPULSION.
Expulsion Order — Pauper — Medical Assist-
ance— Ordinary Relief — Magistrate's Certifi-
cate.]— Evidence that an alien, who arrived
in England from Russia in July, 1913, became
chargeable to the Guardians of the Mile End
Union on November 19, and was admitted to
the workhouse infirmary for treatment, and
took his discharge uncured on December 15,
1913, and was, according to the medical certi-
ficate, suffering from diabetes, which would
produce in him permanent disability, was held
sufficient to support an expulsion order of a
Secretary of State made under section 3 of
the Aliens Act, 1905. Rex v. Leycester ;
Greenbaum, Ex parte, 79 J. P. 14 ; 13 L. G. R.
159— D.
Further, upon the above facts, it is open to
the magistrate who grants the certificate upon
which the expulsion order is made to hold
that such poor relief had been given to the
alien as would disqualify him from exercising
the Parliamentary franchise and deprive him
of the benefit of section 2 of the Medical Relief
Disqualification Removal Act, 1885. The
magistrate's certificate need not follow the
precise form given by the Summary Jurisdic-
tion (Aliens) Rules, 1906, provided the facts
appear in the body of it. lb.
Recommendation for Expulsion.] — See post,
col. 4.59.
III. STATUS OF ALIEN ENEMIES.
German Company with Branch in England.]
— At common law the question whether a man
is to be treated as an alien enemy for the pur-
pose of his contracts, rights of suit, and the
like, does not depend upon his nationality, or
even upon his true domicil, but upon whether
he carries on business in this country or not.
If he does, it is not illegal, even during war,
to have business dealings with him in this
country in respect of the business which he
carries on here. The same thing is true of a
company which has a head office in Germany,
but a branch office here, in respect of business
transactions with such branch office. Ingle,
Lim. V. Mannheim Continental Insurance
Co., 84 L. J. K.B. 491; [1915] 1 K.B. 227;
112 L. T. 510; 59 S. J. 59; 31 T. L. R. 41—
Bailhache, J.
Whether a person is an alien enemy depends
on the place where he resides and carries on
business, and not on his nationality ; and a
person who voluntarily resides in and carries
on business in an enemy's country must be
regarded as an alien enemy. Porter v.
Freudenberg. Kreglinger y. Samuel. Merten's
Patents, In re, 84 L. J. K.B. 1001; [1915]
1 K.B. 857; 112 L. T. 313: 20 Com. Cas.
189 ; 32 R. P. C. 109 ; 59 S. J. 216 ; 31 T. L. R.
162— C.A.
Alleged Alien Enemy — Habeas Corpus —
Refusal of Writ.] — The appellant was born in
Germany in 1883, and about the age of fifteen
went to South America, and after living there
two or three years came to England in 1901,
where he alleged that he had since lived.
Owing to the war between England and
Germany he was interned as an alien enemy.
On an application by the appellant to a
Divisional Court for a writ of habeas corpus
on the ground that he was not an alien enemy
and had no nationality, evidence was given
that by a German law of 1870 Germans who
left the territory of the Confederation and
resided abroad for ten years uninterruptedly
ipso facto lost their nationality. There was
also evidence that by a German statute of
1913 a person who had lost his nationality
might recover it, and the Divisional Court
refused the application : — Held, without decid-
ing whether an appeal lay to the Court of
Appeal, that as the statute of 1913 shewed
that the appellant had not entirely lost his
nationality of origin, he had failed to satisfy
the Court" that he had ceased to be of German
nationality, and therefore he was not entitled
to a writ of habeas corpus. Weber, Ex parte,
59 S. J. 692; 31 T. L. R. 602— C.A.
ALIEN.
10
Internment.]— An alien enemy resident
in the United Kingdom, who in the opinion
of the Executive Government is a person
hostile to the welfare of this country and is
on that account interned, may properly be
described as a prisoner of war, although
neither a combatant nor a spy, and no writ
of habeas corpus will be granted in the case of
Buch a prisoner. A person who is by birth
a German subject and who has obtained his
discharge from German nationality under the
German laws of 1870 and 1913, under which
he is entitled to recover back his German
nationality without returning to Germany,
but who has taken no steps to naturalise him-
self in this country, is, during the war
between Great Britain and Germany, an alien
enemy, inasmuch as he has not become entirely
divested of the rights of a natural-born
German. Rex v. Vine Street Police Super-
intendent, 32 T. L. E. 3— D.
Nationality — Person Born Abroad whose
Father had Previously Become a Naturalised
British Subject — Internment as Alien Enemy
— Habeas Corpus.] — A German subject be-
came denationalised in Germany, and in
1869 became a naturalised British sub-
ject, and he was again naturalised as a
British subject in 1877 under the Naturalisa-
tion Act, 1870. He was at that time a
member of the London Stock Exchange, and
remained a member until his death in 1908.
Some time prior to 1884 he went to reside at
Frankfort-on-Main in Germany, where his son,
the present applicant for a writ of habeas '
corpus, was born in September, 1884, the birth
being registered at the British consulate. The
son resided there with his parents until he
was sixteen and a half years of age, when he
removed with his parents to Brussels. He
lived there about seven years, when he left
his parents and went to Berlin. In October,
1909, he came to England, where he had since
resided. The applicant had never served in
the German army, and had never been called
upon to do military service in the German
army. On the outbreak of war between Great
Britain and Germany the applicant registered
himself as an alien enemy. Subsequently,
however, he unsuccessfully tried to get his
name removed from the register. Having been
interned as an alien enemy, he obtained a
rule nisi for a writ of habeas corpus on the
ground that, being the son of a British sub-
ject, he was himself a British subject : — Held,
that the applicant, having been born out of
the King's dominions and allegiance before
the commencement of the British Nationality
and Status of Aliens Act, 1914, had not
obtained the status of a natural-born British
subject merely by reason of the fact that his
father was at the time of his birth a natural-
ised British subject. Rex v. Albany Street
Police Superiyitendent ; Carlebach. Ex parte,
84 L. J. K.B. 2121; [1915] 3 K.B. 716;
113 L. T. 777 ; 31 T. L. R. 634— D.
English Limited Company with Alien
Enemy Shareholders.]— A limited liability
company, incorporated under the Companies
Acts, carrying on business and having its
registered office in England, but practically
the whole of whose shares are held by alien
enemies, is not an alien enemy. Continental
Tyre and Rubber Co. v. Daimler Co. ; Same v.
Tilling, Lim., 84 L. J. K.B. 926; [1915]
1 K.B. 893; 112 L. T. 324; 20 Com. Cas. 208;
59 S. J. 232 ; 31 T. L. R. 159— C. A.
Ownership of British Ship,] — Qucere,
whether an English company^ consisting
entirely of aliens, can own a British ship.
The Tommi; The Rothersand, 84 L. J. P. 35;
[1914] P. 251; 1 P. Cas. 16; 112 L. T. 257;
59 S. J. 26; 31 T. L. R. 1-5- Evans, P.
Right of Voting— Foreign Bank— Branch
in England— Exercise of Right on Behalf of
Branch.] — An alien enemy who is a share-
holder in an English company is not entitled,
during the war, to exercise the right of voting
by employing a British subject as proxy at a
meeting of the shareholders of the company,
and where the alien enemy is a banking com-
pany with a branch in England such right of
voting is not within clause 6 of the Trading
with the Enemy Proclamation No. 2, and
cannot be exercised during the war on behalf
of the branch. Robson v. Premier Oil and
Pipe Line Co., [1915] 2 Ch. 124; 59 S. J. 475;
31 T. L. R. 420— C. A.
Decision of Sargant, J. (31 T. L. R. 385),
affirmed. lb.
IV. CONTRACTS BY AND WITH ALIEN
ENEMIES.
Effect of Outbreak of War on Contract.] —
The plaintiff company contracted before the
war to supply zinc concentrates to a firm,
which on the outbreak of war became alien
enemies. The contracts provided that in
certain events, including acts of God, force
majeure, and any cause beyond the control
of sellers or buyers preventing or delaying the
carrying out of the agreement, the agreement
should be suspended : — Held, that the effect
of the war was not to abrogate the contracts,
but to suspend all obligations thereunder
during its continuance. Zinc Corporation v.
Skipworth (No. 1), 31 T. L. R. 106—
Sargant, J.
By an agreement made between the plain-
tiffs, who were an English company, and the
defendants, who carried on business in Ger-
many, the defendants agreed to buy from the
plaintiffs a certain quantity of zinc concen-
trates in each year from 1910 to 1919, and it
was agreed that so long as the agreement
should be in force the plaintiffs should not sell
any zinc concentrates to any persons other
than the defendants and that " in the event
of any cause beyond the control of either the
sellers or the buyers preventing or delaying
the carrying out of this agreement, then this
agreement shall be suspended during the
continuance of any and every such dis-
ability." War broke out between Great
Britain and Germany on August 4, 1914,
and the plaintiffs brought an action against
the defendants for a declaration that the
agreement was thereby dissolved : — Held,
that the agreement only provided for the
suspension of deliveries, and under it there
still remained rights the exercise of which
11
ALIEN.
12
would be illegal after the outbreak of the
war, and therefore the contract was dissolved
on August 4, 1914. Zinc Corporation v.
Hirsch, 32 T. L. R. 7— Bray, J.
Alien Enemy Lessee — Residence Prohibited
in District — Whether Lessee Relieved from
Liability under Lease.] — The fact that an alien
enemy has been prohibited under the Aliens
Restriction (Consolidation) Order, 1914, from
residing in a particular district, where a house
of which he is lessee is situated, does not
relieve him from liability under the lease.
London and Northern Estates v. Schlesinger,
32 T. L. R. 78— D.
Liability for Rent.]— The liability of an
alien enemy lessee for rent accruing due after
the outbreak of war is not thereby extinguished
or suspended. An alien enemy defendant is
not entitled to claim an indemnity by the use
of third party procedure. Halsey v. Lowen-
feld, 32 T. L. R. 13&— Ridley, J.
British Steamer — Cargo Sold by Neutrals —
Alien Enemy — Stoppage in Transitu.] —
Semble, the failure of an alien enemy firm
to meet their acceptances given for the price
of goods shipped to such alien enemy firm by
a neutral in a British ship does not constitute
insolvency, so as to give the neutral a right
of stoppage in transitu. The Feliciana,
59 S. J. 54&— Evans, P.
" Deemed to be insolvent " — Sale of Goods.]
— It is very doubtful whether the act of declin-
ing to pay an acceptance through bankers
because of the outbreak of war could be inter-
preted as ceasing to pay debts in the ordinary
course of business, so as to give the right to
say that the firm could be " deemed to be
insolvent " within the meaning of section 62,
sub-section 3 of the Sale of Goods Act, 1893.
76.
Trading with Enemy.] — See War.
V. PROCEEDINGS BY AND AGAINST.
Right of Alien Enemy to Sue in Courts of
this Country.] — The effect of the registration
of an alien enemy under the Aliens Restriction
Act, 1914, and the Aliens Restriction Order,
1914, is that the registered alien not only has
licence to remain in this country, but is for-
bidden to leave it without special permission.
A registered alien enemy can therefore enforce
a personal riglit in the Courts of this country,
notwithstanding the existence of the state of
war, as being allowed to remain in this
country and exonerated from the disabilities
of enemies, on the principle stated in Hall's
International Law (6th ed.), p. 388. Thurn
and Taxis (Princess) v. Moffitt, 84 L. J.
Ch. 220; [1^15] 1 Ch. 58; 112 L. T. 114;
59 S. J. 26; 31 T. Tj. R. 24— Sargant, J.
S. P. Volkl V. Rotunda Hospital, [1914]
2 Ir. R. 543— K.B. D.
Interned Alien.] — The fact that a subject of
an enemy State who is resident in this
country has been interned as a civilian
prisoner of war does not preclude him from
maintaining an action. Schaffenius v.
Goldberg, 60 S. J. 105; 32 T. L. R. 133— C. A.
Liability to be Sued — Right to Appear
and Defend — Right to Appeal.] — An alien
enemy, who is not within the realm by the
licence of the King, cannot sue, but may be
sued, in the King's Courts. An alien enemy
who is sued can appear and be heard in his
defence, and may take all steps necessary for
his defence ; and if judgment proceed against
him he has the right to appeal ; but an alien
enemy who is plaintiff in an action, which
commenced before the outbreak of war, has no
right of appeal during the war, his right of
appeal being suspended till peace is concluded.
Porter v. Freudenherg. Kreglinger v. Samuel.
Merten's Patents, In re, 84 L. J. K.B. 1001;
[1915] 1 K.B. 857; 112 L. T. 313; 20 Com.
Cas. 189; 32 R. P. C. 109; 59 S. J. 216;
31 T. L. R. 162— C.A.
Action against Alien Enemy — Cause of
Action Arising Prior to War.] — The rule that
an alien enemy cannot sue or prosecute his
action during hostilities is confined to cases
in which the alien enemy is plaintiff, or to a
case in which a defendant alien enemy is
seeking to prosecute a counterclaim, and does
not apply to a case where the alien enemy is
defendant. There is no rule at common law
which prevents an alien enemy who is a
defendant from appearing and defending his
case. Robinson d Co. v. Mannheim Insurance
Co., 84 L. J. K.B. 238; [1915] 1 K.B. 155;
112 L. T. 125; 20 Com. Cas. 125; 59 S. J. 7 ;
31 T. L. R. 20— Bailhache, J.
Outbreak of War — Effect — Action for De-
claration— Absence of Party to Contract.] —
An action by one party to a contract for a
declaration as to its construction will not lie
in the absence of the other party, where there
is no third party whose interests make it
necessary to determine its construction. Zinc
Corporation v. Skipicorth {No. 2), 31 T. L. R.
107— C.A.
Appeal from decision of Sargant, J.
(31 T. L. R. 106), allowed. lb.
Right of Company to Sue — Registration in
England — Shares Held by Alien Enemies.] —
A company registered under the Companies
Acts is not precluded from suing by reason of
the fact that some of its shareholders are alien
enemies residing in any enemy State with
which this country is at war. Amorduct
Manufacturing Co. v. Defries d- Co., 84 L. J.
K.B. '586: 112 L. T. 131; 59 S. J. 91; 31
T. L. R. 69-D.
An action was brought by a company to
recover the price of goods sold and delivered.
The company was registered in England under
the Companies Acts about eight years ago,
having its office in London and its factory in
Birmingham. Of its shares 380 were held by
a naturalised German living in this country,
and 1,435, being practically the whole of the
remaining shares, were held by Germans
resident in Germany. It was not disputed at
the trial that the sum claimed was owing by
the defendants, but the Judge of the City of
London Court decided that owing to the com-
13
ALIEN.
14
position of the plaintiff company it -was not
entitled, during the continuance of a state of
war between this country and Germany, to sue
in respect of the debt : — Held, reversing his
decision, that when once the company was
registered according to English law it became
resident in this country, and was consequently
entitled to judgment for the sum claimed. lb.
English Company with German Share-
holders — Debt Contracted with Company
before Beginning of War — Right to Payment.]
—A limited liability company, incorporated
under the Companies Acts, carrying on
business and having its registered office in
England, but practically the whole of whose
shares are held by alien enemies, is not an
alien enemy, and can claim immediate pay-
ment of a debt contracted with it by an
English company (also carrying on business in
England) before the beginning of the present
war. Neither the Trading with the Enemy
Act, 1914, nor the Trading with the Enemy
Proclamation of September 9, 1914, contain
any prohibition against such payment. Con-
tinental Tyre and Rubber Co. v. Daimler Co.
Same v. Tilling, Lim., 84 L. J. K.B. 926
[1915] 1 K.B. 893: 112 L. T. 324; 20 Com
Cas. 208; 59 S. J. 232: 31 T. L. R. 159— C.A
The plaintiffs, an English company, incor
porated and carrying on business and having
its registered office in England, in the second-
named case sold and delivered certain goods
to the defendants before the beginning of the
war between England and Germany. The
plaintiff company was one of many branches
in different countries of a German company
called the " parent company," and had a
capital of 25,000 1/. shares, the bulk of these
shares being held by the German company.
All the remaining shares, except one, were
held by Germans resident in Germany, the
managing director and other directors also
residing there. The remaining one share was
held by a naturalised German, the secretary
of the company, who took part in the manage-
ment of its business and resided in England.
In an action for the price of the goods the
defendants contended that payment to the
company of the debt before the termination of
the war would be aiding and benefiting alien
enemies and was prohibited at common law
and by the proclamation of September 9. 1914,
and the Trading with the Enemy Act, 1914.
In the first-named case the same plaintiffs
were the holders of bills accepted by the defen-
dants for goods supplied before the war. The
bills matured and were presented for payment
after the declaration of war. Scrutton, J.,
gave leave to sign final judgment under
Order XIV. :— HeW (Buckley, L.J. .dis-
senting), that, first, payment to the plaintiff
company was not payment to the enemy share-
holders of the company or for their benefit ;
secondly, the payment "to or for the benefit
of an enemy " forbidden by the proclamation
did not include payment to a company incor-
porated and registered in this country under
the Companies Acts; thirdly, the right of the
company to recover payment did not depend
on whether the majority of the shareholders
were enemies or not; fourthly, that to allow
the company to recover debts during the war
was not contrary to public policy; fifthly, the
defendants could not succeed on the ground
that the secretary of the company could not in
the circumstances have any authority from
the directors to bring the action ; and sixthly,
the company were therefore entitled to pay-
ment, lb.
Decision of Lush, J. (31 T. L. E. 77),
affirmed. lb.
Creditor in Bankruptcy — Proof — German
Subject Resident in Germany — Rejection of
Proof — Right to be Heard.] — An alien enemy,
a German subject resident in Germany,
cannot be heard during the war in support
of a motion to revise or vary the decision of
the trustee in bankruptcy rejecting his proof,
and the motion must be dismissed. Porter
V. Freudenberg (84 L. J. K.B., p. 1001; [1915]
1 K.B. 857) applied. Wilson, In re; Marum,
e.r parte, 84 L. J. K.B. 1893; [1915] H. B. R.
189— Horridge, J.
Alien Principal — Action by Agent against
Principal — Claim for Receiver,] — An agent in
this country of a principal, who is an alien
enemy, is not entitled to bring an action
against him for a declaration that the agent is
entitled to collect debts due to the principal
and to pay debts due from the principal, or
for the appointment of a receiver of the assets
of the principal's business in this country.
Ma.TiveU v. Grunhut, 59 S. J. 104 ; 31 T. L. R.
79— C.A.
Service of Writ on Alien Enemy.] —
Where an action is brought against an enemy
resident in the enemy's country, who carries
on a branch business in this country by means
of an agent, leave may be given to issue a con-
current writ and to make substituted service
of the notice of the writ upon the agent, and
such further terms as to advertisement or other
means of communication and as to the period
to be given to the defendant for appearance
should be imposed in chambers on the plaintiff
as may seem proper. Porter v. Freudenberg.
Kreglinger v. Samuel. Merten's Patents, In
re, 84 L. J. K.B. 1001 ; [1915] 1 K.B. 857 ;
112 L. T. 313; 20 Com. Cas. 189; 32 R. P. C.
109; 59 S. J. 216; 31 T. L. R. 162— C.A.
Joinder as Co-plaintiff — Application to Sus-
pend.]— A patent was vested jointly in the
plaintiffs, an English company and a German
company, by a deed providing that the English
company should have the sole right of bring-
ing actions for infringement and might join
the German company as co-plaintiffs. The
English company brought an action for in-
fringement and joined the German company
as co-plaintiffs -.—Held, that as the English
company had the sole right of bringing the
action, the fact that the German company was
an alien enemy was not a ground for suspend-
ing the action. Mercedes Daimler Motor Co.
V. Maudslay Motor Co., 32 R. P. C. 149;
31 T. L. R. 178— Warrington, J.
Person Carrying on Business in Allied
Country — Action by — Whether Maintainable.]
— (;)n an application l>y tlic defiMulants in an
action for a stay on the ground that one of the
15
ALIEN.
16
plaintiffs was an alien enemy, Warrington, J.,
held that the action could be maintained
as the plaintiff in question, though a subject
of an enemy State, was neither residing nor
carrying on business in an enemy State, and
he therefore dismissed the application {vide
31 T. L. R. 248). On appeal, further evidence
as to the plaintiff's status having been pro-
duced, the Court held that it could be more
conveniently given at the trial, and made no
order except as to costs. Sutherland (Duchess) ,
In re; Bechoff, David it Co. v. Bubna,
31 T. L. R. 394— C.A.
Two Co-plaintiffs — Appeal — One Plaintiff
an Alien Enemy — Suspension of Appeal,] —
Where two co-plaintiffs have given notice of
appeal before the outbreak of war between
Great Britain and another country, and one of
them has on the outbreak of war become an
alien enemy, the appeal must be suspended
during the war. Actien-Gesellschaft filr Anilin-
Fabrikation v. Levinstein, Lim., 84 L. J. Ch.
842; 112 L. T. 963; 32 R. P. C. 140;
31 T. L. R. 225— C.A.
Business of Alien Enemies — Application by
Manager for Receiver — Jurisdiction.] — The
plaintiff, who was the London manager of a
business carried on in various parts of the
world by alien enemies of this country, applied
for the appointment of a receiver and manager
to carry on the business of the London
branch : — Held, that the Court had no juris-
diction to make such an appointment. Max-
well V. Grimhut (31 T. L. R. 79) followed and
applied. Gaudig and Blum, In re; Spalding
V. Lodde, 31 T.' L. R. 153— Warrington, J.
London Branch — British Workmen — English
Assistant Manager Appointed Receiver and
Manager,] — \\'here a large firm of alien
enemies had a London branch employing a
hundred British workmen the Court appointed
the English assistant manager of that branch
to be receiver and manager on his undertaking
(1) not to remit goods or money forming assets
of the defendants" business to any hostile
country ; (2) to endeavour to obtain a licence
from the Crown to trade. Bechstein, In re;
Berridge v. Bechstein {No. 1), 58 S. J. 863—
Shearman, J.
Partnership — Articles — Partner Recalled to
Serve in German Army — Deed of Accession —
Licence to Trade Granted by Crown — Appoint-
ment of Receiver and Manager.] — A deed
constituting a partnership, which consisted of
English and German partners, contained a
clause making provision for the event of the
two German partners, or either of them, being
called out to serve in the German Army. On
the German partners being so called out before
the outbreak of war between England and
Germany, all the partners executed a deed
of accession purporting to carry out the clause
and to substitute other partners for the
German partners : — Held, that a receiver and
manager of the business should be appointed
for the purpose of carrying on the business for
a limited time. Armitage v. Borgmann,
84 L. J. Ch. 784; 112 L. T. 819; 59 S. J. 219;
— Sargant, J.
English and German Partners — Business
in Germany — Dissolution before War —
English Assets Made Over to English Partner
— Action on Contracts Made before War."
— The plaintiff, who was a British subject and
before the war between Great Britain and
Germany was in partnership with a German
in business in Germany, made, on the eve of
the war, an agreement with his partner, by
which the assets and liabilities of the business
were made over to the plaintiff, the intention
being that the German partner should take
over the German and Austrian assets and
liabilities and that the plaintiff should take all
the rest and carry on the business in London,
the partnership being dissolved. The trans-
action diverted a balance of 6,000L, together
with the business, from Germany to England.
In an action by the plaintiff on a bill of
exchange given to the firm for goods supplied
before the war and to recover a further sum,
for goods supplied by the firm before the war,
— Held, that in the circumstances the plaintiff
was not precluded by sections 6 and 7 of the
Trading with the Enemy Amendment Act,
1914, from recovering on the bill and for the
goods supplied. Wilson v. Ragosine & Co.,
84 L. J. K.B. 2185 ; 113 L. T. 47 ; 31 T. L. R.
264— Scrutton, J.
Partnership Business — One of the Partners
an Alien Enemy — Collecting Outstanding
Moneys — Receiver.] — The Court will appoint
a receiver of a partnership business, of which
one of the owners is an alien enemy, if the
business is an ordinary commercial enterprise,
and not within section 3 of the Trading with
the Enemy Act, 1914. Rombach v. Rombach,
59 S. J. 90— Eve, J.
Partnership Firm Carrying on Business in
England — Member of Firm Alien Enemy —
Dissolution of Partnership Proceedings — Ap-
pointment of Receiver — Recovery of Partner-
ship Debts — Partnership Claim by Receiver.]
— The plaintiffs, a father and his two sons,
carrying on business in partnership in
England, claimed 53L 19s. 9d. for goods sold
and delivered. The father, who was a
German subject resident in Germany, had,
prior to May, 1914, carried on the business
as sole proprietor, the sons managing the busi-
ness for him. On May 9, 1914, he took his
sons into partnership. One of the sons was a
naturalised Englishman, denationalised in
Germany, and the other was a German
subject, but registered under the Aliens
Restriction Act, 1914; both being resident in
England. After the outbreak of war between
Great Britain and Germany the naturalised
Englishman commenced proceedings for the
dissolution of the partnership, and was ap-
pointed receiver of the partnership assets, with
liberty to sue for the debts owing to the
partnership. In an action by him and his
two partners for the foregoing claim the
defendants admitted liability, but contended
they were prohibited from paying the claim
under the Trading with the Enemy Acts. Part
of the claim was for goods supplied prior to
the partnership : — Held, that the plaintiffs
could not succeed as to that portion of the
claim, but that they were entitled to judgment
r
ALIEN.
18
for the price of goods supplied by the partner-
ship. Boussmaker. Ex parte (13 Yes. 71),
and Mercedes Daimler Motor Co. v. Maudslay
Motor Co. (31 T. L. E. 178) followed. Rom-
bach Baden Clock Co. v. Gent, 84 L. J. K.B.
1558; 31 T. L. R. 492— Lush, J.
German Bank — Head Office at Berlin —
Branch in London Trading under Licence of
Home Secretary — Refusal of Head Office to
Honour Cheque of English Customer — Action
against Bank — Service of Writ on London
Branch — Judgment — Right to Execution
against Branch." — The plaintiffs, an English
firm with a branch office at Berlin, had an
account at Berlin with a German bank whose
head office was in that town, and who also
had a branch in London. Shortly before the
declaration of war between Great Britain and
Germany on August 4, 1914, a sum of money
was standing to the plaintiffs' credit at
Berlin. On July 30, 1914, the plaintiffs drew
a cheque for the sum in question, and payment
was refused by the defendants' head otJice at
Berlin. After the declaration of war the
Secretary of State in England, acting under
powers conferred upon him by the Aliens
Restriction Act, 1914, and an Order in Council
made pursuant thereto, granted a licence to
the defendants' branch in London to carry on
business in this country, subject to certain con-
ditions. By the terms of the licence the
permission granted by it was expressed to
extend only to the completion of the trans-
actions of a banking character entered into
before August 5, 1914, so far as those trans-
actions would in ordinary course have been
carried out with the London establishment,
and not to extend to any operations for the
purpose of making available assets which would
ordinarily be collected b}', or of discharging
liabilities which would ordinarily be dis-
charged by, an establishment of the bank
other than its London establishment. It was
further provided that the business to be trans-
acted under the permission should be limited
to such operations as might be necessary for
making the realisable assets of the bank avail-
able lor meeting its liabilities, and for dis-
charging those liabilities as far as might be
practicable. All transactions carried out under
the permission were to be subject to the super-
vision and control of a person to be appointed
for the purpose by the Treasury, and any assets
of the bank which might remain undisturbed
after its liabilities had so far as possible in
the circumstances been discharged, were to be
deposited with the Bank of England to the
order of the Treasury. The plaintiffs issued a
writ against the defendants to recover the sum
standing to their credit at Berlin, and served
it upon the manager of the London branch of
the bank, in accordance' with the provisions
of section 274 of the Companies (Consolida-
tion) Act, 1908. At the trial the plaintiffs
recovered judgment for the sum claimed and
costs, and levied execution under a writ of
/). fa. upon the goods and chattels of the
defendants at their London branch. The
defendants thereupon took out a summons
before Ridley, J., at chambers for an order
staying proceedings under the writ of fi. fa.
upon the ground that the effect of the licence
granted to the defendants was to deprive the
plaintiffs of their right to levy execution.
Ridley, J., refused to stay proceedings under
the writ of fi,. fa. : — Held, that the effect of the
statute, the Order in Council, and the licence
was to direct that such assets of the bank in
London as were subject to the control of the
controller appointed by the Treasury should
be applied in a particular manner, which was
inconsistent with the exercise by the plaintiffs
of their common law right to levy execution
upon them, and that all proceedings under the
writ of fi. fa. so far as regarded such assets
should be stayed. Leader v. Disconto
Gesellschaft, 84 L. J. K.B. 1806; [1915]
3 K.B. 1.54; 113 L. T. 596; 59 S. J. 544;
31 T. L. R. 464— C. A.
Alien Banking Company — Action on Bill —
Licence to Trade.] — A bill payable to the
order of the B. Bank of Rio de Janeiro ninety
days after sight was drawn there on July 11,
1914, upon the defendants, who were merchants
in London, and was bought by the B. Bank.
The plaintiffs were a banking company incor-
porated in Germany and having a head office
in Berlin and a branch in London, and the B.
Bank, in order to provide funds to meet certain
bills drawn by them and accepted by the
plaintiffs' London branch under arrangement
with the plaintiffs' Berlin office, sent to the
plaintiffs in London on July 13 the first of
exchange unindorsed, and asked them to obtain
acceptance. The first of exchange was marked
" for acceptance only." On the same day the
B. Bank sent to the plaintiffs in Berlin the
second of exchange indorsed, and on July 16
the B. Bank sent to the plaintiffs in London
the third of exchange indorsed. On July 31
the defendants accepted the first of exchange
payable in London. On August 4 war broke
out between Great Britain and Germany. A
few days later the plaintiffs in London
received the third of exchange. On August 8
the plaintiffs in Berlin received the second of
exchange. On September 19 the Home Secre-
tary, acting under the Aliens Restriction
(No. 2) Order, 1914, which was made in
pursuance of the Aliens Restriction Act, 1914,
granted to the plaintiffs and two other German
banks a licence to carrj- on banking business
in the United Kingdom, subject as follows :
(1) The permission shall extend only to the
completion of the transactions of a banking
character entered into before the 5th day of
August, 1914, 80 far as those transactions
would, in ordinary course, have been carried
out through or with the London establish-
ments. The permission does not extend to any
operations for the purposes of making available
assets which would ordinarily be collected by,
or of discharging liabilities which would ordin-
arily be discharged by, establishments of the
banks other than the London establishments.
No new transactions of any kind save such
as may be necessary or desirable for the
purpose of the completion of the first-mentioned
transactions shall be entered into by or on
behalf of the London establishments of the
banks. (2) The business to be transacted
under this permission shall be limited to such
operations as may be necessary for making
the realisable assets of the banks available for
19
ALIEN.
20
meeting their liabilities, and for discharging
their liabilities as far as may be practicable."
The defendants dishonoured the first and
third of exchange at maturity — namely, on
October 31. On January 8, 1915, the plain-
tiffs in Berlin sent the second of exchange to
the plaintiffs in London and asked them to
credit the proceeds of collection to the Berlin
office. The plaintiffs had with the Bank of
England arrangements which bound the
plaintiffs to pay to the Bank of England the
amount of the bills when paid. The plaintiffs
having brought an action against the defen-
dants on the bill, the latter pleaded that the
plaintiffs were alien enemies, and that the
licence did not authorise the plaintiffs" London
branch to present and receive payment of the
bill : — Held, that the transactions permitted
by the licence were not limited to transactions
with the plaintiffs' London branch, that the
transaction would in the ordinary course have
been carried out in London, that the present-
ment or collection was not a new transaction,
and that in the circumstances the plaintiffs
were entitled to recover on the bill. Disconto
GeseUschaft v. Brandt & Co., 31 T. L. K. 586
— Bray, J.
Payment of Money "to or for the benefit of
an enemy" — "Branch" Situated in British
Territory — "Transaction."] — A German com-
pany, having its head office in Berlin and
having manufacturing works in different parts
of Germany, had also an office in London, in
charge of a manager who had authority to
enter into contracts and to sue and be sued
on behalf of the company. In respect of this
office the company was registered under the
Companies Act, 1908, as a foreign company
having a place of business in the United
Kingdom. The company having entered into
a contract, through their London manager,
with a Glasgow firm, brought an action
against that firm in the Sheriff Court at
Glasgow for payment of certain sums alleged
to be due under the contract. The Sheriff
having granted decree in favour of the
defenders, the company appealed to the Court
of Sessions. Before the hearing of the appeal
war was declared against the German Empire,
and the proclamation of September 9, 1914,
was issued which prohibited the payment of
money to or for the benefit of an enemy, but
contained the following exception : " Provided
always that where an enemy has a branch
locally situated in British . . . territory . . .
transactions by or with such branch shall not
be treated as transactions by or with an
enemy." Thereafter the company presented
a note to the Court in which they averred
that the matter in dispute fell within the
above-quoted exception in respect that it
was a " transaction " entered into with a
" branch " in British territory, and craved a
hearing in ordinary course : — Held, first, that
the company's office in the United Kingdom
was not a " branch " in the sense of the
exception in the proclamation ; secondly (per
the Lord President and Lord Johnston),
that the payment of money after the date of
the proclamation in fulfilment of a previous
contract was not a " transaction " within the
exception ; and thirdly, in respect that no
effective decree in favour of the company
could be pronounced, the proceedings were
staved. Orenstein d- Koppel v. Egyptian
Phosphate Co.. [1915] S. C. 55— Ct. of Sess.
Appointment of Controller — Mode of Appli-
cation— Requisite Evidence — Form of Order —
Trading with the Enemy.] — An application by
the Board of Trade to the Chancery Division
for the appointment of a controller of a firm
or company under section 3 of the Trading
with the Enemy Act, 1914, need not be made
by petition, but may be made by originating
motion. On such an application all the evi-
dence that the Court ought to require is some
evidence that the information of the Board of
Trade in reference to the state of things laid
down by the section as a condition precedent
to the application has some reasonable founda-
tion. A controller so appointed ought to be
ordered to give the usual security given by
a receiver, and to keep and vouch the accounts
of the company in such manner as the Judge
in chambers may from time to time direct and
such other accounts as the Judge in chambers
may from time to time order, and he ought to
make periodical reports as to the position of
the business and the result of carrying it on.
Meister Lucius and Briining, Lim., In re,
59 S. J. 25; 31 T. L. E. 28— Warrington, J.
Vesting of Enemy Property — Service on
Alien Enemy — Motion — Originating Sum-
mons.] — Where notice of motion had been
served before the rules under the Trading with
the Enemy (Amendment) Act. 1914, were
promulgated in the London Gazette, — Held,
that an originating summons must now be
issued, in pursuance of the rules, and the
matter must come on first in chambers, leave
being given to use the affidavit evidence filed
on the motion. Company, In re, 59 S. J. 217
— Sargant, J.
Where the alien enemy is interned in an
internment camp a letter should be sent to
him inclosing a copy of the originating
summons. lb.
Vesting Order — German Bank's Running
Account with English Bank — Disputed Credit
Balance — Application by Creditor of German
Bank for Order Vesting Bank Balance in
Custodian.] — Where a German bank had a
running account with an English bank and
the English bank disputed that they had in
their hands a balance belonging to the German
bank, the Court refused an application under
section 4 of the Trading with the Enemy
Amendment Act, 1914, by a creditor of the
German bank, for an order vesting the credit
balance of the German bank in the custodian.
Such an order would place the custodian in
the position of an assignee of a disputed debt,
and that result was not intended by the Act.
Bank fur Handel und Industrie. In re, 84 L. J.
Ch. 435; [1915] 1 Ch. 848; 31 T. L. E. 311—
Warrington, J.
Parties to Summons — Debtor to Enemy
Respondent.1 — A debtor to an enemy is no*- a
person holding or managing property alleged
to belong to the enemy within rule 2 C4l of
the Trading with the Enemy (Vesting and
21
ALIEN— ANIMALS.
22
Application of Property) Eules, 1915, and
therefore is not a proper respondent to a
summons taken out by a creditor of an enemy
under section 4 of the Act. 7b.
ANIMALS.
I. Mischievous Animals. 21.
II. Anim.^ls on Highw.^ys, 23.
HE. Animals Causing Infection, 24.
rv. Cruelty to Animals, 25.
V. Other Points, 26.
I. MISCHIEVOUS ANIMALS.
See also Vol. I. 199, 1085.
Injury to Trespasser — Acquiescence in Tres-
pass— Liability of Owner.] — The owner of
land who, knowing that persons are in the
habit of crossing it, and acquiescing in the
practice, puts a dangerous beast on his ground
without warning of the danger is guilty of
negligence and liable in damages to a person
traversing the field who is injured by the
beast. Loicery v. Walker. 80 L. J. K.B.
138; [1911] A.C. 10; 103 L. T. 674; 58 S. J.
62; 27 T. L. E. 83— H.L. (E.)
Vicious Dog — Contributory Negligence —
Patting Unknown Dog.' — In an action of
damages brought against the owner of a dog
for personal injuries caused by its biting the
pursuer, the defender maintained that the
pursuer had been guilty of contributory negli-
gence in that he, although the dog was
unknown to him, had patted it : — Held, that
this did not amount to contributorv negligence.
Gordon v. Mackenzie, [1913] S. C. 109—
Ct. of Sess.
Proof of Dog's Conduct Subsequent to
Commencement of Action." — Per the Lord
Justice-Clerk : Evidence of attacks made by
the dog on other persons after the date of the
raising of the action for damages for personal
injury caused by the dog is admissible for the
purpose of shewing that the dog was of a
vicious disposition. Ih.
Dog Kept by Daughter in Father's
House — Daughter's Custody and Control —
Scienter — Injuries Inflicted by Dog — Liability
of Daughter.! — The defendant's daughter,
aged seventeen, was the owner of a dog for
which she took out a licence in her own name
and the food for which she paid for out of her
own earnings, the defendant consenting to the
dog living in his house. The dog, which had
previously attacked other dogs to the know-
ledge of the defendant and his daughter, whilst
so kept killed a valuable dog belonging to the
plaintiff. The County Court Judge found as
a fact that the daughter had control of the
dog : — Held, that, as the daughter was of a
sufficient age to exercise control over the dog,
and did in fact exercise such control, the
defendant was not liable for the loss of the
plaintiff's dog. M'Kone v. Wood (5 Car. &
P. 1) distinguished. Xorth v. Wood, 83 L. J.
K.B. 587: [1914] 1 K.B. 629; 110 L. T. 708;
30 T. L. R. 258— D.
Dog Running into Bicycle.] — A lady
cycling on a public road was about to pass
a waggonette which was coming towards her
when a dog belonging to the owner of the
waggonette ran out from behind it in front
of her bicycle, causing her to fall and sustain
injuries. In an action against the owner of
the dog, — Held (Lord Johnston diss.), that
as the dog had never shewn, and as the
defender accordingly could not have any know-
ledge of any vicious or dangerous propensities,
he was not liable in damages for the result
of its behaviour on the occasion of the accident.
Milligan v. Henderson, [1915] S. C. 1030.
— Ct. of Sess.
Cat Rearing Kittens — Vicious towards Dogs
— Attacks Owner of Dog — Duty of Owner of
Cat to take Reasonable Care to Provide for
Safety of Customers.] — The plaintiff and her
husband went into a teashop belonging to the
defendants accompanied by a dog with (as the
jury found) the defendants' permission or
acquiescence. A cat belonging to the shop,
which was rearing kittens, came out of a
cupboard and attacked the dog. The plaintiff
picked up the dog and handed it to her
husband. The cat then sprang upon the
plaintiff and bit her. The plaintiff brought
an action claiming damages for the injury
done to her and also for the injury done to
the dog. The jury found that the cat had.
to the knowledge of the defendant, whilst
rearing kittens a disposition to attack a dog
and a person holding a dog ; that the cat
attacked the dog unprovoked ; and that the
defendants had not taken reasonable precau-
tions for the safety of their customers. On
an appeal by the defendants, — Held, that a
cat did not cease to be a domestic animal and
become dangerous to mankind merely because,
when it had kittens, it attacked a dog and, by
accident, a person who happened to be there;
and secondly, that, though the defendants were
under a duty to take reasonable care to provide
for the safety of their customers, they were not
liable for what happened, because it was not
the ordinary consequence of their act in keep-
ing a cat on the premises, and was not such as
would have been foreseen by a person of
ordinarv sense and prudence. Clinton v.
Lyons,''Sl L. J. K.B. 923; [1912] 3 K.B. 198;
106 L. T. 988; 28 T. L. R. 462— D.
Owner's Liability — Kick of Horse —
Scienter.' — In the case of a horse not known
to be vicious it is not the natural consequence
of leaving it unattended in a yard that it
should kick a workman employed there : the
owner is therefore not liable therefor, as the
damage is too remote. Cox v. Burbidge,
(32 L. J. C.P. 89; 13 C. B. (n.s.) 430) fol-
lowed. Bradley v. Wallaces. 82 L. J.
K.B. 1074 ; [1913] 3 K.B. 629 : 109 L. T. 281 ;
29 T. L. E. 705— C. A.
Dangerous Horse Let out by Owner —
Injury to Person Hiring Horse and to another
— Liability of Owner to Person other than
23
ANIMALS.
24
}
Hirer.] — The duty of a person who lets out a
horse of known vicious propensity is the same
as that which any person is under who allows
others to use, or come in contact with, an
animal or chattel that is dangerous in itself ;
he is under a duty to warn not only the person
who hires it, but any person who he knows or
contemplates or ought to contemplate will use
it.. The duty is not dependent on, and is not
created by, the contract ; it exists indepen-
dently of the contract. Wliite v. Steadman,
8-2 L. J. K.B. 846; [1913] 3 K.B. 340;
109 L. T. 249; 29 T. L. R. 563— Lush, J.
The male plaintiff hired a horse and landau
from the defendant, a livery-stable keeper, for
the purpose of a drive. The defendant provided
the driver as well as the horse and landau. The
female plaintiff, the wife of the male plaintiff,
was one of the party who went in the landau.
During the drive the horse shied at a traction
engine and the landau was upset and the
plaintiffs were injured. In an action claiming
damages in respect of their injuries, the jury
found that the defendant ought to have known,
if he had used proper care, that the horse was
not safe at the time the landau was let out to
the male plaintiff : — Held, that the defendant
was liable in damages, not only to the male
plaintiff, but also to the female plaintiff, first,
inasmuch as he was, in view of his means of
knowledge as to the character of the horse,
under a duty to warn not only the person
who hired it, but any person he knew or con-
templated or ought to have contemplated
would use it; and secondly, inasmuch as the
defendant, who kept control of the landau,
accepted the female plaintiff as a traveller or
passenger, and was therefore bound to use
due care to see that she was safely carried. 75.
n. animaijS on highways.
Cattle on Highway — Open Gate — No EyI-
dence as to by Whom Opened — Burden of
Proof.] — The jjlaintiff was riding on a bicycle
at 10.30 P.M. along a highway adjoining a field
in which the defendant kept a hundred cows.
The field in question communicated by a gate
with the highway, and at the time when the
plaintiff was passing the gate was open, and
she saw some cows coming through it. A
little further along were other cows which
had come from the field, some of which threw
the plaintiff down and injured her. At the
trial no evidence was given as to by whom
the gate had been opened. The learned
Judge held that, in the circumstances, the
fact that the defendant's gate was open and
that his cows had strayed on to the road
through the open gate and had caused the
accident to the plaintiff afforded evidence of
negligence, and that it was for the defendant
to displace this evidence by shewing that the
gate was not left open by reason of any negli-
gence on his part or on that of his servants.
LJpon the evidence he held that the defendant
had not displaced this prima farie case, and
gave judgment for the plaintiff for 75Z. : —
ileld, that there was no evidence upon which
the County Court Judge could find that the
defendant, either by an act of his own or by
the neglect of a duty which he owed to the
public, produced an obstruction of the highway
by his cattle, and that judgment therefore
should be entered for the defendant. Ellis v.
Banyard, 106 L. T. 51; 56 S. J. 139;
28 T. L. E. 122— C. A.
Horse Straying on Highway — Damage to
Cyclists — Obligation of Owner or Occupier of
Land Adjoining Highway.] — A young horse
which had been placed by the defendant in
a field adjoining a highway escaped owing to
a defective hedge and strayed upon the high-
way. The plaintiffs were riding a tandem
bicycle along the highway, and on seeing the
horse they slowed down, but the horse turned
round suddenly and ran across the road,
coming in contact with the bicycle. The
horse fell down, and then, jumping up, lashed
out and injured one of the plaintiffs and
damaged the bicycle. In an action for
damages by the plaintiffs the learned County
Court Judge found that there was no evidence
that the horse was vicious or in the habit of
trespassing or attacking bicycles or any one
upon the high road. He also found that the
defendant was guilty of negligence in turning
the horse into a field of which the hedges were
defective, but that, as the act of the horse
was not one which it was in the ordinary
nature of a horse to commit, the defendant was
not liable : — Held, that the injury to the
plaintiffs not being the natural consequence
of the defendant's negligence, if any, the
plaintiffs were not entitled to recover. Jones
V. Lee, 106 L. T. 123: 76 J. P. 137;
28 T. L. E. 92— D.
Per Bankes, J. : The County Court Judge
was wrong in law in holding that there had
been negligence on the part of the defendant
in turning the horse into a field with defective
hedges, inasmuch as at common law there is
no duty on the owner or occupier of land
adjoining the highway to keep his animals off
the highway. lb.
Sheep.] — There is no rule of law that to
drive sheep along the highway at night without
a light is a negligent act. Catchpole v.
Minster, 109 L. T. 953; 11 L. G. R. 280;
30 T. L. R. Ill— D.
III. ANIMALS CAUSING INFECTION.
See also Vol. I. 206, 1086.
Diseases — Imported Sheep — Meaning of
"brought from a port."] — Article 2 of the
Foreign Animals Order, 1910, made under
section 30, sub-section 1 of the Diseases of
Animals Act, 1894, makes it unlawful unless
by licence from the Board of Agriculture and
Fisheries to bring into a port in Great Britain
any cattle, sheep, goats, or swine brought
from a port in a scheduled country. The First
Schedule to the order provides that France
shall be a country to which the order shall
apply. The respondent, the master of a ship
homeward bound, who had put on board in the
East certain live sheep for food for the crew,
had put into the port of Marseilles with one
sheep still alive, and subsequently arrived in
the Port of London, where the sheep was
slaughtered on board for food. The respon-
dent had obtained no licence in respect of the
sheep : — Held, that no offence had been com-
■25
ANIMALS.
26
mitted against the above article, for the sheep
had not been " brought from " the port of
Marseilles within the meaning of the article,
but had been imported from the East. Glover
V. Robertson, 106 L. T. 118; 76 J. P. 135;
10 L. G. E. 230; 22 Cox C.C. 692— D.
IV. CEUELTY TO ANIMALS.
See also Vol. I. 210, 1088.
Carrying Cows by Rail — Infirmity — Un-
necessary Suffering — Permitting to be Carried
— Person in Charge.] — A railway company to
which cows are delivered for transit, and which
conveys them by rail, does not "permit them
to be carried," and is not " the person in
charge " of them, within the meaning of
clause 12 of the Animals (Transit and General)
Order, 1912, made under the Diseases of
Animals Act, 1894, and is not liable to be
convicted of " carrying " them when owing to
infirmity and fatigue they cannot be carried
without unnecessary suffering. North Stafford-
shire Railway v. Waters, 110 L. T. 237;
78 J. P. 116 : 12 L. G. E. 289 ; 24 Cox C.C.
27 ; 30 T. L. E. 121— D.
Overstocking — Cow — Custom.] — Where un-
necessary suffering is caused to an animal by
the owner an offence is committed against
section 1, sub-section 1 of the Protection of
Animals Act, 1911, even if the act is done in
pursuance of a custom and for commercial
reasons. The respondent held liable for allow-
ing a cow to be overstocked with milk before
offering her for sale. Waters v. Braithtoaite,
110 L. T. 266: 78 J. P. 124; 24 Cox C.C. 34;
30 T. L. E. 107— D.
Sheep — Wounds not Attended to — Suffi-
ciency of Evidence.] — The respondent was
summoned for causing a sheep to be ill-treated.
Evidence was given for the prosecution that a
sheep belonging to the respondent, which had
been attacked by flies, was seen in one of his
fields, that two days later it was found dead
with a large wound on the back, that it
must have died from exhaustion owing to its
being eaten by maggots, that it must have
suffered great pain, and that there was no sign
that the wound had been treated or dressed.
Evidence was also given that the respondent
when spoken to about it said that he knew
some of his sheep were affected with fly, and
that he had sent a man to dress the wounds.
The Justices without calling on the respondent
dismissed the summons, being of opinion that
there was not sufficient evidence that he had
unlawfully and cruelly caused the sheep to be
ill-treated. — Held, that it could not be said
that the Justices had taken a wrong view or
that they had misdirected themselves. Potter
V. Challans, 102 L. T. 325; 74 J. P. 114;
22 Cox C.C. 302— D.
Stranded Whale — Animal in Captivity.]^
The respondent caused unnecessary pain and
suffering to a whale which had been stranded
and so was unable to escape for a time, but
which would have floated off with the incom-
ing tide : — Held, that the whale was not in
captivity or close confinement within section 2
of the Wild Animals in Captivity Protection
Act, 1900, and therefore that the respondent
had not committed an offence under that Act.
Steele v. Rogers, 106 L. T. 79; 76 J. P. 150;
28 T. L. E. 198 ; 22 Cox C.C. 656— D.
Ill-treatment of Horse — Proceedings against
Owner — Evidence of Permitting.] — The
respondent was charged with permitting his
horse to be cruelly ill-treated. Evidence was
given on behalf of the prosecution that the
respondent said to the appellant, an inspector
of the Society for the Prevention of Cruelty
to Animals : "I am the boss, but I have
nothing whatever to do with the horses. In
fact, I know no more about them than an
infant. My man Floyd, the driver of the horse
in question, is wholly responsible for the
horses. I pay him a good wage in order that
he should be responsible. My proper horse-
keeper has enlisted, and I have had my best
i horses commandeered by the military. Floyd
bought this horse on October 15 last for 15L I
saw the horse and made a remark to my man
i that it was in a poor condition, but Floyd told
me that it was a good horse and a good worker,
and so I left it to him " : — Held, that upon
I this evidence there was a case for the respon-
I dent to answer on the charge made against
! him. Whiting v. Ivens, 84 L. J. K.B. 1878;
79 J. P. 457; 13 L. G. E. 965; 31 T. L. E.
i 492— D.
I Causing Unnecessary SufiFering.] — The re-
spondent, who was the director of a research
' laboratory and was licensed by the Home
! Secretary under the Cruelty to Animals
Act, 1876, to perform experiments on living
animals, in the course of experiments to find
a cure for sleeping sickness administered to
an ass a drug which had the effect of bringing
on gradual paralysis without pain. He then
had the ass put in a field, where after some
days it was found lying down and unable to
rise and protect itself from flies. As soon
as the experiment was completed the ass was
painlessly destroyed. On a summons against
the respondent for causing unnecessary suffer-
I ing to the ass by omitting to give it proper
I care and attention when in a suffering state,
I the Justices found that the ass did not suffer
unnecessary pain when lying in the field, and
they dismissed the summons : — Held, that the
question was a question of fact for the Justices,
and therefore their decision must be affirmed.
Dee V. Yorke. 78 J. P. 359 ; 12 L. G. E. 1314 ;
30 T. L. E. 552— D.
V. OTHEE POINTS.
See also Vol. I. 216, 1093.
Distress — Damage Feasant — Right to Im-
pound— Cattle Driven to Pound more than
Three Miles.]— The statute 1 & 2 Ph. & M.
c. 12, s. 1, provides that "... no distress of
cattle shall be driven out of the hundred, rape,
wapentake, or lathe where such distress is or
shall be taken, except that it be to a pound
overt within the same shire, not above three
miles distant from the place where the said
distress is taken ..." : — Held, that on the
true construction of this section the word
27
ANIMALS— ANNUITY.
28
"not" should not be read as "nor"; and
that the section means that the distress may
be driven to any pound within the hundred or
similar area where the distress was taken,
even though more than three miles from the
place where the distress was taken, but may
not be driven outside that area except to a
pound within the same shire and not more
than three miles from the place where the
distress was taken. Berdsley v. Pilkmgton
(Gouldsb. 100) followed. Coaker v. Willcocks,
80 L. J. K.B. 1026; [1911] 2 K.B. 124;
104 L. T. 769; 27 T. L. E. 357— C. A.
Prohibition against Selling Alive or Per-
mitting Sale of Animals Delivered to Knackers
— Sale by Knacker's Assistant — " Permis-
sion " of Knacker — "Delivery" of Animal. 1
— A knacker's assistant, in the absence and
without the knowledge of the knacker, pur-
chased a horse at a market three miles from
the knackery for the sum of 11., and tied it
to the knackery cart. While the horse was
standing there he sold it for IL 10s. to a
person who subsequently despatched it for
exportation to Antwerp. There was no evi-
dence as to the purpose for which the
knacker's assistant purchased the horse. The
knacker's assistant and the knacker having
been convicted of a contravention of section 5,
sub-section 2 of the Protection of Animals
(Scotland) Act, 1912 [corresponding to
section 5, sub-section 1 of the Protection of
Animals Act, 1911], by respectively selling
and permitting the sale of the horse alive : —
Held, first (Lord Salvesen dissenting), that the
conviction of the assistant was right, inasmuch
as Regulation 9 of Schedule I. applied not
only to knackers, but also to their assistants,
and although it would not be a contravention
of the section to sell a horse that was proved
to have been delivered for other than knackery
purposes, yet in the absence of such proof the
horse must be presumed to have been delivered
for knackery purposes; and secondly, that the
conviction of the knacker must be quashed,
as in the absence of proof that he knew of or
authorised the sale, or had failed to exercise a
reasonable supervision over his assistant, he
could not be said to have " permitted " the
sale. Dundas v. Phyn, [1914] S. C. (J.) 114
— Ct. of Just.
ANNUITY.
I. Construction and Nature.
1. Persons Entitled, 27.
2. On what Property Chargeable, 28.
3. Real or Personal Estate, 31.
4. Duration, 31.
II. Rights and Remedies in Respect of, 32.
I. CONSTRUCTION AND NATURE.
1. Persons Entitled.
See also Vol. I. 219, 1094.
Pur autre Vie — Duration — Death of the
Annuitant before Cestui que Yie.— Payment
" during the widowhood of my said wife . . .
out of the income of my trust fund " of " the
following yearly sums of money ; ... to my
said daughter, Ellen Alice Francis, lOOZ."
gives an annuity to Ellen Alice Francis,
which continues to be payable after her death
to her legal personal representative during
the widowhood of the testator's widow.
Drayton, In re; Francis v. Drayton, 56 S. J.
258— Neville, J.
See also Cannon, In re; Canyion v. Cannon,
post, 4. Duration.
2. On what Property Chargeable.
See aha Vol. I. 227, 1094.
Trust to Pay out of Income — Gift of Corpus
"subject nevertheless to the said annuities"
— Charge upon Corpus.] — A testator devised
and bequeathed all his real and personal estate
to trustees upon trust for sale and conver-
sion, and after payment of debts, &c., for
investment of the residue of the proceeds of
sale (hereinafter called " the residuary trust
funds ") upon trust out of the income thereof
to pay an annuity of 150Z. to G. and an annuity
of 52Z. to L. during their respective lives, and
upon further trust to accumulate the residue
of the income of the residuary trust funds until
the youngest child of J. should attain twenty-
one or until the expiration of twenty-one years
from the testators death, whichever event
should first happen, and from and after the
attainment of that age or the expiration of
that term, whichever should first happen, to
stand possessed of the residuary trust funds
and accumulations, " subject nevertheless to
the said annuities," in trust for the child or
children of the said J. then living and the
children of any deceased children per stirpes.
The will also gave the trustees a discretionary
power to apply the income of the share of a
child or grandchild of the said J. in the resi-
duary trust funds " subject to and after
payment of the annuities " for the mainten-
ance of such a child or grandchild, and,
" subject to providing for the said annuities,"
to raise any part or parts not exceeding one
moiety of such a share for the advancement of
such a child or grandchild : — Held, following
Howarth, In re; Howarth v. Makinson
(78 L. J. Ch. 687; [1909] 2 Ch. 19), that the
annuities were charged upon corpus. Held,
further, that Taylor v. Taylor (43 L. J. Ch.
314; L. R. 17 Eq. 324) must be treated as
having been overruled by Howarth, In re;
Howarth v. Makinson (supra). Young, In re;
Brown v. Hodgson, 81 L. J. Ch. 817; [1912]
2 Ch. 479; 107 L. T. 380— Parker, J.
Qumre, whether there is any difference
between a charge on corpus and a continuing
charge on income. 7b.
Subsequent Trusts "subject thereto" —
Power of Sale — Proceeds Charged with
Annuity — Charge on Corpus.] — By a marriage
settlement the liusband conveyed certain real
and personal property to trustees upon trust,
after his death, out of the rents and profits
and income of the trust premises to pay the
clear annual sum of 400/. per annum to his
29
ANNUITY.
30
widow for her life, and " subject thereto
upon the trusts therein mentioned. The
settlement empowered the trustees to sell,
exchange, or partition the real property free
and discharged from " the said annual sum of
400i., which shall thereupon become charged
upon the proceeds thereof as aforesaid " :
— Held, that the words " subject thereto "
meant subject to the annuity of 400Z., and
therefore subject to the full and complete pay-
ment of the annuity, and that consequently
the annuity was a charge upon the corpus.
Birch V. Sherratt (36 L. J. Ch. 925; L. K.
2 Ch. 644) followed. Bigge, In re; Granville
V. Moore (76 L. J. Ch. 413, 415; [1907]
1 Ch. 714), overruled. Watkins' Settlement,
In re: Wills v. Spence, 80 L. J. Ch. 102;
[1911] 1 Ch. 1; 103 L. T. 749; 55 S. J. 63
— C.A.
Direction to Pay out of Income — Cliarge on
Corpus.] — The trustees of a settlement were
directed to pay an annuity out of income, or
such of it as should exist, and subject thereto
to stand possessed of the trust funds in trust
for the persons therein named absolutely. The
income was insufficient to pay the annuity : —
Held (following Boden, In re; Boden V.
Baden, 76 L. J. Ch. 100; [1907] 1 Ch. 132),
that the annuity could not be charged on
corpus, nor was it a continuing charge on the
income. BoulcotVs Settlement, In re; Wood
V. Boulcott, 104 L. T. 205; 55 S. J. 313—
Parker, J.
A testator by his will devised and be-
queathed to trustees certain houses upon trust
to receive the rents and profits thereof, and to
pay thereout the head rent and other outgoings,
and as to the residue of the rents and profits,
after payment of the above, upon trust to pay
a number of annuities to certain persons for
their lives, and after their deaths to hold the
annuities on trust for testator's son R., and
after payment of such annuities to pay out of
the residue of such rents and profits as the
same should come to their hands a certain debt
due by the testator. All the residue of his
real and personal estate he devised and be-
queathed to his son R. The rents and profits
were insufficient to pay the annuities in full :
— Held, that the annuities were a charge on
the corpus. Phillips v. Gutteridge (32 L. J.
Ch. 1; 3 De G. J. & S. 332) applied and
followed. Buchanan, In re; Stephens V.
Draper, [1915] 1 Ir. R. 95— C.A.
Gift over — Arrears of Annuity Payable out
of Corpus — Continuing Charge on Income or
Charge on Income for Particular Year.] —
By a will there were gifts of small annuities
and then a trust for sale of residue and a
gift " upon trust in the first place with and
out of the annual income thereof, including
the profits which .shall accrue to my estate
from any partnership business in which I
shall be engaged at tlie time of my decease
and which my trustees or trustee shall con-
tinue to carry on under the discretionary
power in that behalf hereinafter contained and
which profits are hereinafter directed to be
considered annual income for the purposes of
this my will, to pay to my said wife during
such time as she shall continue my widow a
clear annual sum of 1,500/., or in case the
clear rentals derived from my said freehold
warehouses and leasehold wharf shall, to-
together with interest calculated at the rate of
21. per cent, per annum on the cash value of
the corpus or capital of the remainder of my
general residuary estate, including the capital
in my partnership business or businesses,
amount to more than 1,500L, then upon trust
to pay to my said wife during such time as
she shall continue my widow a clear annual
sum equal to the amount of the said rentals,
together with interest calculated as aforesaid,
but not exceeding an annual sum of 2,000/.,
and subject thereto upon trust out of the sur-
plus annual income of my general residuary
estate, but so far only as such surplus annual
income will from time to time extend or per-
mit, to pay to her my said wife during her
widowhood (in addition to the annual sum for
the time being payable to her as aforesaid) a
further annual sum of 100/. in respect of each
of my children who shall for the time being
be under the age of twenty-three years." And
after this payment had been satisfied there
was a further provision as to the surplus, and
in the language of the ultimate gift of capital
there was nothing to indicate a fresh start or
to create any trusts which were in any way
inconsistent with the continuance of any
arrears of the annuities as a charge on the
future income. The words were : " My said
general residuary estate and all moneys and
property directed to fall into and form part
thereof and the said surplus income and the
accumulations thereof shall be divided or con-
sidered as divided into so many equal shares
as the number of my sons and daughters who
either shall be living at my death and shall,
whether within my lifetime or after my
decease, attain the age of twenty-three or
marry under that age." The will contained,
among other provisions, a declaration by the
testator that the widow was to be paid in
full ; a provision that accumulations were only
to be made " subject to such payments here-
out as aforesaid"; and a declaration that no
portion of corpus or capital was to be made
over to the testator's children or issue so as
to prejudice or affect the due payment of the
annual sums bequeathed by the will : — Held,
that the widow's annuity formed a continu-
ing charge on income. Boden, In re; Boden
V. Boden (76 L. J. Ch. 100; [1907] 1 Ch.
132), discussed. Rose, In re; Rose v. Rose,
85 L. J. Ch. 22; 113 L. T. 142— Sargant, J.
Tenant for Life and Remainderman — Charge
on Settled Real and Personal Estate — Defi-
ciency of Income — Deficiency Paid out of
Corpus — Recoupment out of Income. 1 — A testa-
tor gave and devised his real and personal
estate to trustees upon tnist to pay certain
annuities, and subject to such annuities the
real estate was to be held upon trust for the
testator's son for life, with remainder to his
sons successively in tail male, with remainders
over. The income of the estate was insufficient
to pay the annuities, and the deficiency was
made up out of capital. On the death of one
of the annuitants, the income was more than
sufficient to satisfy the remaining annuities :
— Held, that, the annuities being charged on
31
AXN'UITY.
32
capital as well as income, there was no right
to have moneys expended out of capital in
making up the annuities recouped to capital
out of income. Playfair v. Cooper (23 L. J.
Ch. 343; 17 Beav. 187) followed. Croxon, In
re; Ferrers \. Croxon, 84 L. J. Ch. 845;
[1915] 2 Ch. 290; 59 S. J. 693— Eve, J.
Pecuniary Legacies — Insufficiency of
Assets to Set Aside Sum by its Income to
Meet Annuities — Purchase of Annuities.] —
The testatrix, after giving certain pecuniary
legacies and two annuities to servants,
directed that her trustees should provide for
the annuities by setting aside and appro-
priating a portion of her estate sufficient to
answer them by the income thereof, and that
upon the cesser of an annuity a proportion of
the capital so set aside and appropriated
should sink into, and form part of, her resi-
duary estate, which she gave in trust for other
persons. The estate was not sufficient to
make the provision contemplated by the will,
but was sufficient to pay all the pecuniary
legacies in full, and to provide sums enough
to purchase annuities of the amounts given by
the will : — Held, that sums sufficient to buy
the annuities mentioned in the will should be
invested by the trustees in the purchase of
such annuities, to be paid to the annuitants
for their lives or until they should assign,
charge, or incumber them. Cottrell. In re;
Buckland v. Bedingiield (79 L. J. Ch. 189;
[1910] 1 Ch. 402l. applied. Sinclair, In re;
Allen V. Sinclair (66 L. J. Ch. 514; [1897]
1 Ch. 921), distinguished. Dempster, In re;
Borthwick v. Lovell, 84 L. J. Ch. 597 : [1915]
1 Ch. 795; 112 L. T. 1124— Sargant, J.
3. Eeal or Personal Estate.
See also Vol. I. 238, 1098.
Annual Payment Charged on Easements
and Chattels — Realty or Personalty.] — The
tenant for life of one eighth share in certain
realty and personalty constituting the C.
Waterworks joined with the owners of the
other seven shares in conveying such water-
works to a company incorporated by Act of
Parliament, in consideration of an annual sum
to be payable for ever to the grantors, their
respective executors, administrators, and
assigns, and there was a covenant by the
company to pay such annual sum. The pro-
perty granted consisted mainly of easements
or rights in the nature of easements, and of
personal chattels : — Held, that such annual
payment was personalty and not realty.
Baxter. In re; Mailing v. Addison, 104 L. T.
710; 27 T. L. R. 425— C. A.
4. Duration.
See also Vol. I. 245, 1100.
Married Woman — Forfeiture on Assigning,
Disposing of, or Charging, whether under Dis-
ability or not.]— By the terms of a will, by
which an annuity was given to a married
woman, it was provided that the annuitant
should be restrained from anticipating any
property coming to her thereunder, and,
further, that " if she should assign, dispose
of, or charge the annuity, whether under dis-
ability or not," the annuity should cease.
The married woman (the annuitant) purported
to charge the annuity : — Held, that as she
could not create a valid charge there was no
forfeiture of the annuitv. Adamson, In re;
Public Trustee v. Billing, 109 L. T. 25;
57 S. J. 610; 29 T. L. R. 594— C. A.
Pur autre Vie — Death of Annuitant before
Cestui que Yie.] — Payment " during the
widowhood of my said wife . . . out of the
income of my trust fund " of " the following
vearly sums of money ; ... to my said
daughter, Ellen Alice Francis, lOOZ.," gives
an annuity to Ellen Alice Francis, which con-
tinues to be payable after her death to her
legal personal representative during the
widowhood of the testator's widow. Drayton,
In re; Francis v. Drayton, 56 S. J. 253 —
Neville, J.
A testator left his estate to trustees upon
trust during his wife's widowhood to pay out
of the income certain annuities from his death,
including annuities to his wife during widow-
hood, and to certain of his children (among
them James Arthur Cannon). He directed
that the rest of the income should be applied
in paying off certain mortgages, and that
when they had been redeemed the trustees
should divide during the widowhood of his
wife the remainder of the income among his
said children equally : and that after the death
or re-marriage of the testator's wife the
trustees should hold the residue and the income
thereof upon trust (subject to a special pro-
vision for one of the sons) for all his other
sons and daughters equally. James Arthur
Cannon survived the testator, but died intes-
tate during the widowhood of the testator's
wife. Held, that James Arthur Cannon's
annuity continued to be payable to his adminis-
tratrix during the remainder of the widowhood
of the testator's wife. Cannon, In re; Cannoji
V. Cannon, 60 J. P. 43; 32 T. L. R. 51—
Sargant, J.
II. RIGHTS AND REMEDIES IN
RESPECT OF.
See also Vol. I. 283, 1101.
Arrears — Interest — Administration of Estate
of Grantor,] — In a foreclosure or redemption
action as between incumbrancers and as
against the property charged, no interest will
as a rule be allowed on arrears of an annuity.
But in the administration of the estate of the
grantor, and as against his general assets,
an annuitant is, in respect of arrears, in the
same position as other creditors and is en-
titled to interest on his debt. Mansjield
(Earl) V. Ogle (28 L. J. Ch. 422; 4 De G. &
J. 38) explained. Salvin, In re ; Worsley
V. Marshall, 81 L. J. Ch. 248; [1912] 1 Ch.
332; 106 L. T. 35; 56 S. J. 241; 28 T. L. R.
190— Eve, J.
Annuity for 'Wife to Arise on Certain
Events during Life of Husband and Jointure
33
ANNUITY— APPEAL.
34
after his Death— Statute of Limitations.] —
By marriage settlement, lands held under
freehold and chattel leases were conveyed to
trustees on trust to permit the wife to receive
and take out of the rents, issues, and profits
thereof a yearly rentcharge or annuity of lOOZ.
sterling during her life, in case she should
survive the husband, or in case the husband
should during her life become bankrupt, or
assign, charge, or incumber the said premises
or suffer something whereby the said premises
or some part thereof would through his act or
default, or by operation or process of law,
become vested in some other person or persons,
and subject thereto in trust for the husband.
The husband, without the knowledge of the
trustees or the wife, deposited the leases by
way of equitable mortgage, and died more
than twelve years afterwards. One of the
leases contained a strict covenant against
alienation : — Held (a) that the annuity, which
arose when the husband incumbered the pre-
mises by depositing these leases with the bank,
was barred; {b) that, at the husband's death,
the widow became entitled to an annuity " in
case she should survive her husband," which
was in effect an independent annuity ; and
(c) that no estate passed by the settlement
in the premises comprised in the lease which
contained a covenant against alienation.
Field V. Grady, [1913] 1 Ir. R. 121—
Barton, J.
Annuity Determinable on Re-Marriage —
Deficiency of Assets — Valuation.] — A testator
by his will bequeathed two annuities, one of
which was payable to the testator's widow
during her life while she remained a widow,
and the other payable to the annuitant for
life. The estate was solvent qua creditors,
but was insufficient to pay the two annuities
in full. In administration proceedings one of
the enquiries directed was what was the value
of the widow's annuity : — Held, that the value
should be ascertained as if the annuity was
a life annuity, and that after the amount
representing such value had been rateably
abated it should be invested in the purchase
of a life annuity to be paid to the widow until
her re-marriage. Carr v. Ingleby (1 De G. &
S. 362) followed; Sinclair, In re (66 L. J.
Ch. 514; [1897] 1 Ch. 921) distinguished.
Richardson, In re; Mahony v. Treacy, [1915]
1 Ir. R. 39— Barton, J.
Practice — Administration Action — Enquiry in
Chambers — Presumption of Death — Form of
Certificate.] — It is not for a Master, on an
enquiry before him whether an annuitant is
living or dead, either to presume the death or
to state that there is no evidence before him
to shew whether the annuitant is living or
dead. His certificate should take the form of
finding that the only evidence on the point
before him is the evidence mentioned in the
certificate, and submitting to the Court the
question whether the annuitant ought to be
presumed to be living or dead, and, if dead,
on what date the death ought to be presumed
to have taken place. Long, In re; Medlicott
V. Long, 60 S. J. 59— Sargant, J.
APPEAL.
I. General Pkixciples, 34.
II. To House of Lords, 35.
III. To Court of Appeal.
1. Jurisdiction, 37.
2. In what Cases Appeal Lies, 38.
3. Parties to Appeal, 39.
4. Time Within which Appeal must be
brought, 39.
5. Staying Proceedings, 40.
6. Evidence on Appeal, 41.
7. Application to Single Judge of Court
of Appeal, 41.
8. Hearing of Appeal, 41.
9. Costs of the Appeal, 42.
10. Poioer to Re-hear, 43.
IV. To Divisional Court, 43.
Y. From Judge in Chambers, 45.
VI. In Other Cases.
1. In Bankruptcy. — See Bankruptcy.
2. hi Interpleader. — See Interpleader.
3. From County Court. — See County
Court.
I. GENERAL PRINCIPLES.
See also Vol. I. 326, 1104.
Concurrent Findings in Courts Below —
Jurisdiction on Appeal to Review Con-
clusions Resting upon Probabilities.] — The
rule that concurrent findings should not be
disturbed on appeal does not apply where on
appeal there is tolerably clear evidence which
satisfies the Court that the findings are
erroneous, and the principle is especially
applicable to a case in which the conclusion
sought to be set aside rests upon the
consideration of probability. " Hatfield "
(Owners) v. " Glasgow " {Owners), 84 L. J. P.
161; 112 L. T. 703— H.L. (E.)
A vessel, the H., while rendering assistance
to another vessel, the G., was rammed by the
latter, and all her hands with one exception
were lost. In the Court of first instance both
vessels were held to blame — the H. owing to
want of skilful navigation and the G. owing to
the fact that she did not reverse her engines
in time to avoid the collision ; but the Court of
Appeal reversed that decision, and held that
the H. was alone to blame. The owners of
the H. appealed : — Held, that this case was
not a true example of concurrent findings in
the Courts below ; that there was jurisdiction
to review the concurrent findings in the Courts
below; and that on the facts judgment would
be entered for the H. and the G. pronounced
alone to blame. lb.
Rule laid down by Lord Herschell and Lord
Watson in "The P. Caland" (Owners) v.
Glamorgan Stea7n,ihip Co. (62 L. J. P. 41 ;
[1893] A.C. 207), as to concurrent findings,
considered. 76.
35
APPEAL.
36
Oral Evidence — Conflict of Evidence —
Credibility of Witnesses — Opinion of Trial
Judge/ — A Court of Appeal, in forming an
opinion on the credibility of confiicting wit-
nesses, where there has been plain perjury on
one side or the other, must be greatly in-
fluenced by the opinion of the trial Judge,
who has seen and heard the witnesses. Khoo
Sit Hoh V. Lim Thean Tong, 81 L. J. P.C.
176; [1912] A.C. 323; 106 L. T. 470— P.C.
The Court of Appeal of the Supreme Court
of the Straits Settlements, reversing the judg-
ment of the trial Judge, had held that the
respondent's mother was the natural daughter,
born in wedlock, of the testator, and that the
respondent, as one of the testator's next-of-
kin, was entitled to share in the testator's
undisposed-of property. The Judge of first
instance had held that she was only an adopted
daughter, and therefore that the respondent
was not so entitled. Decision of the Court of
Appeal reversed and that of the trial Judge
restored. lb.
Generally speaking it is undesirable for an
Appellate Court to interfere with the findings
of fact of the trial Judge, who sees and hears
the witnesses and has an opportunity of noting
their demeanour, especially in cases where
the issue is simple and depends on the credit
which attaches to one or other of conflicting
witnesses. The view of the trial Judge as to
the credibility of the witnesses should not be
put aside on a mere calculation of probabilities
by the Appellate Court. Bombay Cotton
Manuiacturing Co. v. MotilaJ Shivlal, L. E.
42 Ind. App. 110— P.C.
Leave to Appeal in Forma Pauperis —
" Reasonable grounds for proceeding " with
Appeal — Necessity for Counsel's Opinion.] —
A defendant to an action, who is appealing from
a judgment against him, and is desirous of
proceeding in forma pauperis, must, in addi-
tion to proving that he is not worth 251., his
wearing apparel and the subject-matter of the
cause or matter only excepted, obtain the
opinion of counsel that he has " reasonable
grounds for proceeding " with the appeal.
Merriwan v. Geach, 82 L. J. K.B. 87; [1913]
1 K.B. 37; 107 L. T. 703; 57 S. J. 146— D.
II. TO HOUSE OF LOEDS.
See also Vol. I. 327. 1105.
Findings of Fact in Courts Belov? not Con-
current." — In an action arising out of a
collision between the steamships H. and G.,
the Judge at the trial found laoth vessels to
blame. On appeal, the Court of Appeal found
the H. alone to blame : — Held, on appeal to
the House of Lords, that there were not con-
current findings of fact in the Courts below,
and that the House of Lords was not debarred
from finding the G. alone to blame on the
evidence before it. " Hatfield " (Owners) v.
" Glasgow " (Owners). The Glasgow, 84L. J.
P. 161'; 112 L. T. 703— H.L. (E.)
Ireland — Sale under Land Purchase Acts.]
— No appeal lies to the House of Lords from
an order of the Court of Appeal in Ireland
with respect to the distribution of the purchase
moneys of lands sold under the Land Purchase
Acts." Scottish Widows' Fund Life Assur-
ance Society v. Blennerhassett, 81 L. J. P.C.
160; [1912] A.C. 281; 106 L. T. 4:
28 T. L. E. 187— H.L. (Ir.)
Decision of the Court of Appeal in Ireland
([1911] 1 Ir. E. 16j sub nom. Blennerhassett' s
Estate, In re) affirmed. lb.
Order of Court of Appeal Fixing Time — Time
not of Essence of Order — Appeal to House of
Lords — Jurisdiction of Court of First Instance
to Extend Time Pending Appeal.] — Where a
time has been fixed by an order of the Court of
Appeal for the doing of some act, but the time
is not an essential part of the order, but is
fixed merely for the purpose of working out
complicated details, the Court of first instance
has jurisdiction under Order LXIV. rule 7 to
modify by extending the time the order of the
Court of Appeal, pending an appeal to the
House of Lords. Manks v. Whiteley, 82 L. J.
Ch. 267; [1913] 1 Ch. 581; 108 L. T. 450;
57 S. J. 391— Sargant, J.
Arbitration — Special Case — Consultative
Opinion of High Court — Avsrard Incorporating
Opinion of Court — Error on Face of Avifard —
Refusal of Application to Set Aside Award —
Competency of Court of Appeal and House cf
Lords to Review Opinion of High Court. 1 —
An arbitrator having stated a Special Case for
the opinion of the King's Bench Division —
which Court expressed their opinion, answering
the question in the affirmative — subsequently
made his award incorporating the opinion so
expressed by the Court, and adjudicating in
favour of the respondents in accordance with
that opinion. An application by the appel-
lants to the King's Bench Division for an
order to set aside the award on the ground
that the opinion was wrong and constituted
error on the face of the award having been
dismissed, the Court of Appeal (Buckley.
L.J., and Kennedy, L.J. ; Vaughan Williams.
L.J., dissenting) held that, though the deci-
sion of the King's Bench Division expressing
their consultative opinion on the Special Case
could not have been appealed against, yet their
decision refusing to set aside the award which
incorporated that opinion was open to review
in the Court of Appeal : — Held, by the House
of Lords, that the decision of the Court of
Appeal was right, and that both the Court of
Appeal and also the House of Lords were, in
the circumstances, competent to review the
consultative opinion which the arbitrator, as
he was bound to do, had adopted, and had set
out in his award. British Westinghouse Elec-
tric and Manufacturing Co. v. Underground
Electric Railways, 81 L. J. K.B. 1132; [1912]
A.C. 673; 107 L. T. 325; 56 S. J. 734—
H.L. (E.)
Costs — Interest.] — A decision in favour of a
plaintiff was reversed by the Court of Appeal
and restored by the House of Lords. No order
was made as to the plaintiff's costs of the
appeal to the Court of Appeal prior to the
judgment in the House of Lords : — Held, that
the plaintiff was entitled to interest at the
rate of 4 per cent, per annum on his costs of
the appeal to the Court of Appeal as from the
37
APPEAL.
38
date of the judgment of that Court. Stickney
V. Keeble (No. 2), 84 L. J. Ch. 927; 112 L. T.
1107; 31 T. L. R. 221— Joyce. J.
Obligations of Counsel in Appeals to House
of Lords.] — Observations by the Lord Chan-
cellor as to the obligation of counsel engaged
in appeal to House of Lords to attend the
House in priority to other Courts. Vacher
V. London Society of Compositors , 29 T. L. R.
73— H.L. (E.)
III. TO COURT OF APPEAL.
1. Jurisdiction.
Sec also Vol. I. 373, 1107.
Right of Appeal — Statute — Reference to
Railway and Canal Commission.] — Where
by statute any matter is rcferi-ed to the deter-
mination of a Court of record -with no further
provision, the necessary implication is that
the Court is to determine the matter as a
Court, with the ordinary incidents of the
procedure of that Court, including any general
right of appeal from its decisions. Therefore,
when by the Telegraph (Arbitration) Act,
1909, any difference between the Postmaster-
General and any body or person was referred
to the Railway and Canal Commission, such
reference must be taken to be to the Com-
mission as a Court and not as arbitrators,
and an appeal lies from their decision to the
Court of Appeal, as provided bv section 17 of
the Railway and Canal Traffic Act, 1888.
National Telephone Co. v. Postmaster-General
(No. 2), 82 L. J. K.B. 1197; [1913] A.C. 546;
109 L. T. 562 ; 57 S. J. 661 ; 29 T. L. R. 637 ;
1j Ry. & Can. Traff. Cas. 109— H.L. (E.)
Injunction — Power to Direct Reference.] —
Where an injunction was rightly granted by a
Court of first instance under the cu'cumstances
of the case then before the Court, the Court of
Appeal has power to direct a reference to an
expert to enquire and report as to whether
the circumstances have changed, and, on his
reporting that the circumstances existing at
the time when the injunction was granted have
changed, to dissolve the injunction. Att.-
Gen. V. Birmingham, Tame, and Rea District
Drainage Board, 82 L. J. Ch. 45; [1912] A.C.
788; 107 L. T. 353; 11 L. G. R. 194; 76 J. P.
481— H.L. (E.)
Arbitration — Special Case — Consultative
Opinion of High Court — Award Incorporating
Opinion of Court — Error on Face of Award —
Refusal of Application to Set Aside Award —
Competency of Court of Appeal and House of
Lords to Review Opinion of High Court.] —
An arbitrator having stated a Special Case for
the opinion of the King's Bench Division —
which Court expressed their opinion, answering
the question in the affirmative — subsequently
made his award incorporating the opinion so
expressed by the Court, and adjudicating in
favour of the respondents in accordance with
that opinion. An application by the appel-
lants to the King's Bench Division for an
order to set aside the award on the ground
that the opinion was wrong and constituted
error on the face of the award having been
dismissed, the Court of Appeal (Buckley, L.J.,
and Kennedy, L.J. ; Vaughan Williams, L.J..
dissenting) held that, though the decision of
the King's Bench Division expressing their
consultative opinion on the Special Case could
not have been appealed against, yet their deci-
sion refusing to set aside the award which
incorporated that opinion was open to review
in the Court of Appeal : — Held, by the House
of Lords, that the decision of" the Court of
Appeal was right, and that both the Court of
Appeal and also the House of Lords were,
in the circumstances, competent to review the
consultative opinion which the arbitrator, as
he was bound to do, had adopted, and had set
out in his award. British Westinghouse Elec- ,
trie and Manufacturing Co. v. Underground
Electric Railways, 81 L. J. K.B. 1132; [1912]
A.C. 673; 107 L. T. 325; 56 S. J. 734—
H.L. (E.)
2. Ix WHAT Cases Appeal Lies.
See also Vol. I. 376, 1107.
Discretion of Judge — Courts (Emergency
Powers) Act, 1914.] — Though there may in
some cases be an appeal from an order made
under the Courts (Emergency Powers) Act,
1914, yet the Court of Appeal will be very
slow to interfere with the Judge's exercise cf
the wide discretion conferred upon him by
section 1, sub-section 2 of the Act. Lyric
Theatre v. L. T. Lim., 31 T. L. R. 88— C. A.
"Criminal cause or matter" — Committal
under Fugitive Offenders Act, 1881 — Order
Nisi for Habeas Corpus.] — A decision of the
King's Bench Division dischai'ging an order
nisi for a writ of habeas corpus to bring up
the body of a person committed to prison by
a magistrate under the Fugitive Of enders Act,
1881, is a decision in a " criminal cause or
matter " within the meaning of section 47 of
the Supreme Court of Judicature Act, 1873,
and therefore no appeal lies from it to the
Court of Appeal. Rex v. Brixton Prison
(Governor) ; Savarhar, Ex parte, 80 L. J. K.B.
57; [1910] 2 K.B. 1056; 103 L. T. 473;
54 S. J. 635; 26 T. L. R. 561— C. A.
"Criminal cause or matter" — Appeal to
Quarter Sessions from Conviction — Appellant
not Appearing Ordered to Pay Costs.! — The
applicant was convicted at petty sessions for
wilfully damaging certain property and for
trespassing on a railway. Against these con-
victions he gave notices of appeal to quarter
sessions, but these notices were in various
respects defective. At quarter sessions the
respondents to the appeals were represented,
but the appellant neither appeared nor was
represented ; and the quarter sessions there-
upon made an order on the applicant to pay
the costs of the appeals. Thereafter the
applicant applied ex parte for a rule nisi for
a writ of certiorari to bring up for the pur-
pose of being quashed the order of quarter
sessions ordering the applicant to pay the
costs. A rule was refused by the King's
Bench Division, but was afterwards granted
by the Court of Appeal. On the rule coming
39
APPEAL.
40
on, objection ■was taken that, being a
" criminal cause or matter " within section 47
of the Judicature Act, 1873, the Court of
Appeal had no jurisdiction to entertain the
case : — Held, that the objection must prevail.
Rex V. Wiltshire Justices; Jay, Ex parte,
81 L. J. K.B. 518; [1912] 1 K.B. 566;
106 L. T. 364 ; 76 J. P. 169 ; 10 L. G. R. 353 ;
56 S. J. 343 ; 28 T. L. R. 255 ; 22 Cox C.C. 737
— C.A.
"Criminal cause or matter" — Contempt of
Court — Hearing in Camera — Subsequent Pub-
lication of Evidence — Nullity Suit.] — In a
suit for nullity of marriage an order was made
that the cause should be heard in camera.
One of the parties aftern^ards obtained a
transcript of the shorthand notes of the
evidence, and sent copies to certain persons
in good faith : — Held, that such conduct did
not amount to a contempt of Court, and
further that such a contempt, if any, was
not a " criminal cause or matter " within
section 47 of the Judicature Act, 1873, but
that an appeal lay to the Court of Appeal
against a finding of a Judge that there had
been a contempt of Court. Scott v. Scott
(No. 1). 82 L. J. P. 74; [1913] A.C. 417;
109 L. T. 1; 57 S. J. 498; 29 T. L. R. 520
— H.L. (E.)
Reference to Master to Ascertain Damages
in Action — Decision of Master — Appeal,
whether to Court of Appeal or Divisional
Court.] — An appeal from the decision of a
Master on a reference to him by a Judge to
assess the amount of the damages in an action
pursuant to Order XXXA^I. rule 57 lies to
the Court of Appeal and not to the Divisional
Court. Dunlop Pneumatic Tyre Co. v. New
Garaqe and Motor Co., 82 L. J. K.B. 605;
[1913] 2 K.B. 207 ; 108 L. T. 361 ; 57 S. J.
357 ; 29 T. L. R. 344— C.A.
3. Parties to Appeal.
See also Vol. I. 400, 1111.
County Court — Appeal to Court of Appeal
from Divisional Court — Death of Respondent
Pending Appeal — Jurisdiction.]— Where an
appeal against a decision of a Divisional Court
has been set down, but before the hearing of
the appeal the respondent dies, application for
leave to add the legal representative of the
deceased party can properly be made to the
Court of Appeal. Blakeivay v. Patteshall
([1894] 1 Q.B. 247) followed. Haywood v.
Farabee, 59 S. J. 234— C.A.
4. Time Within which Appeal must be
Brought.
See also Vol. I. 404, 1112.
Date from which Running — Date of Sealing
Judgment.] — The time for bringing an appeal
to the Court of Appeal from a judgment in
an action is six weeks from the date when
it is perfected by being sealed, and not six
weeks from the date when it is pronounced.
Thames Conservators v. Kent, 59 S. J. 612 —
C.A.
Extension — Winding-up of Company — Mis-
feasance Summons Dismissed.] — A mis-
feasance summons taken out against directors
by the liquidator of a company was dismissed
on November 29, 1910. The liquidator received
the opinion of counsel as to the chance of the
success of an appeal on December 16, and on
December 21 sent a circular to the share-
holders and creditors acquainting them with
the opinion and asking for funds to prosecute
the appeal. In response to this circular an
insufficient sum was promised, and on
January 5, 1911, he sent a second circular
and applied to the Court to extend the time
for appealing to January 31, the time for
appealing having expired on December 13,
1910 : — Held, that the liquidator had taken a
proper course in consulting the creditors and
shareholders, and under the circumstances the
time for appealing ought to be extended.
Brazilian Rubber Plantations and Estates,
In re (No. 2), 103 L. T. 882— C.A. M
Final Order — Time for Appealing — Action —
Appeal from County Court — Decision of Divi-
sional Court.] — An order of the Divisional
Court dismissing an appeal from a judgment
of a County Court in a County Court action
commenced by plaint is a final order in an
action, and not in a " matter not being an
action," and the time, therefore, for appealing
therefrom to the Court of Appeal is under
Order LVIII. rule 15, three months and not
fourteen days only. Johnson v. Refuge Assur-
ance Co., 82 L. J. K.B. 411; [1913] 1 K.B.
259; 103 L. T. 242; 57 S. J. 128; 29 T. L. R.
127— C.A.
Per Buckley, L.J. : The word " action "
in section 100 of the Judicature Act, 1873,
includes a County Court action, it being a
civil proceeding commenced in manner " pre-
scribed by Rules of Court." 7b.
5. Staying Proceedings.
See also Vol. I. 431, 1116.
Refusal of Respondents' Solicitors to Give
Personal Undertaking.] — The plaintiff suc-
ceeded in an action in which nominal damages
and an injunction were claimed on the ground
of an alleged nuisance by noise. At the trial
the defendants did not ask for a stay, but
subsequently objected to pay the taxed costs
except on the personal undertaking of the
plaintiff's solicitors. This undertaking the
solicitors declined to give. Application for a
stay was then made to the Judge, but he
refused to make an order : — Held, dismissing
the application, that the matter was one in
the absolute discretion of the Court, and that
no special circumstances were shewn which
would prima facie entitle the respondents to
the order they sought. Att.-Gen. v. Emerson
(59 L. J. Q.B. 192 ; 24 Q.B. D. 56) considered.
Becker v. Earls Court, Lira., 56 S. J. 206
—C.A.
Discretion of Judge — Verdict for Farthing
— Application to Disallow Costs — Refusal —
Opinion of Jury.]— By Order LVIII. rule 16,
" An appeal shall not operate as a stay of
execution or of proceedings under the decision
41
APPEAL.
42
appealed from, except so far as the Court
appealed from, or any Judge thereof or of the
Court of Appeal, may order; and no inter-
mediate act or proceedings shall be invalidated,
except so far as the Court appealed from may
direct " : — Held, that where in a libel action
the jury find a verdict for the plaintiff for a
farthing, and at the conclusion of the trial
the Judge refuses to deprive the plaintiff of
costs, and on a subsequent day it appears
from communications which have taken place
with the jurymen since the trial that it was
the opinion of the majority of the jury that
the plaintiff should not be deprived of costs,
the Judge is not entitled, in deciding whether
he will grant a stay of execution pending an
appeal, to take into consideration the opinion
of the jury on the question of costs. Wootton
V. Sievier (No. 3), 30 T. L. E. 165— C.A.
6. Evidence on Appeal.
See also Vol. I. 442, 1116.
Further Evidence after Trial— Eyidence de
Bene Esse.] — Circumstances in which after a
trial the Court of Appeal gave leave for
certain fresh evidence to be taken de bene
esse before an examiner in view of the hearing
of an appeal from the judgment after the trial.
The Hawke, 28 T. L. R. 319— C.A.
7. Application to Single Judge of Couet
OF Appeal.
Yacation Court — Notice of Original Motion
to One Judge of the Court of Appeal.] —
Where an application is made under section 52
of the Judicature Act, 1873, a notice of motion
stating the nature of the application should
be sent, together with the notice of appeal, to
the Lord Justice to whom the application is
made, and such notice of motion should also
be served on the other side, together with the
notice of appeal. X. L. Electric Co., In re;
Wiener v. The Company, 57 S. J. 792 —
Swinfen Eady, L.J.
8. HE.4RING OF Appeal.
See also Vol. I. 448, 1117.
Hearing before Two Judges — Absence of
Parties — ^Filed Consent of Counsel.] — Under
section 1 of the Supreme Court of Judicature
Act, 1899, an appeal must be heard and deter-
mined by two Judges of the Court of Appeal
upon the filed consent of the respective counsel
for the parties, notwithstanding that the
parties themselves are not present. Haworth
V. Pilbrow, 28 T. L. E. 143— C.A.
Disagreement of Jury — Entering Judgment
for Either Party on the Evidence — Slight Evi-
dence— No Evidence — Possibility of Adducing
Additional Evidence at a Re-trial.] — At the
conclusion of a plaintiff's case the defendants
applied for judgment on the ground that there
was no evidence to go to the jury. The Judge
refused to enter judgment, saying that there
was some evidence, though very weak. The
case was left to the jury and they disagreed.
The defendants again applied for judgment,
but the Judge again refused to enter judgment,
saying that he could not alter his previous
opinion that there was some evidence, though
it was very weak : — Held, that the Judge had
power to alter his opinion and enter judgment
for the defendants if he would have been
justified in directing the jury to find a verdict
for the defendants. Skeate v. Slaters, Lim.,
83 L. J. K.B. 676; [1914] 2 K.B. 429;
110 L. T. 604; 30 T. L. E. 290— C.A.
Semble, under Order LVIII. rule 4 the
Court of Appeal has power to enter judgment
for the defendant where a verdict has been
found for the plaintiff, if the evidence on which
that verdict was found was so weak and
insufficient that the Court of Appeal would not
have allowed the verdict to stand. But this
power should only be exercised where the
Court of Appeal is satisfied that it has all the
necessary materials before it and that no
evidence could be given at a re-trial which
would in the Court of Appeal support a verdict
for the plaintiff. lb.
Per Buckley, L.J. : Where a case has been
tried and the jury have disagreed, if upon the
whole of the evidence of the case the Court of
Appeal are of opinion that no twelve reason-
able men could give a verdict for the plaintiff,
the Court of Appeal has power and is bound
to enter judgment for the defendant. lb.
Millar v. Toulmin (55 L. J. Q.B. 445;
17 Q.B. D. 603), Allcock v. Hall (60 L. J.
Q.B. 416; [1891] 1 Q.B. 444), and Paquin,
Lim. V. Beauclerk (75 L. J. K.B. 395; [1906]
A.C. 148) approved. Peters v. Perry d Co.
(10 T. L. E. 366) explained. lb.
9. Costs of the Appeal.
See also Vol. I. 454, 1118.
Payment on Solicitors' Undertaking to Re-
pay if Appeal Successful.] — The Court of
Appeal will not, unless in most exceptional
circumstances, order that the costs payable to
the successful litigant should only be paid on
his solicitor's undertaking to repay same in
the event of an appeal to the House of
Lords being successful. Griffiths v. Benn,
27 T. L. E. 346— C.A.
Shorthand Note — Joint Note — Transcript —
Agreement to Use in Court of Appeal — Costs
in Cause.] — At the trial of an action the soli-
citors for both parties agreed that a joint
shorthand note of the proceedings should be
taken. No arrangement was made as to
taking a transcript, but it was agreed that if
the case went to the Court of Appeal the
transcript of the shorthand note of the evidence
should be used as a substitute for the Judge's
note. Both sides took transcripts, and they
were printed and used by the Judge. The
plaintiff obtained judgment in the action, with
costs. Upon a motion bj' the plaintiff that the
costs of the shorthand note and of the tran-
script should be paid by the defendants as
costs in the cause, — Held, that as the case
was one where there was no great technical
difficulty, and one where in the absence of
an arrangement to the contrary the Judge
would have refused to allow the costs upon
taxation, the motion must be refused. Jones
V. Llanrwst Urban Council {No. 2), 80 L. J.
43
APPEAL.
44
Ch. 338: [1911] 1 Ch. 393; 104 L. T. 63;
75 J. P. 98— Parker, J.
Note Taken by Agreement of Parties to
the Knowledge of Judge at Trial.] — Where
Hie parties agree at the trial that a shorthand
note shall be taken, and thereupon intimate
that agreement to the presiding Judge, so that
he is thereby relieved from taking a note, as
the shorthand, by consent, is to be the record
of what took place for the guidance of the Court
of Appeal, the cost of such note to the success-
ful party will be allowed on taxation. Hebert
V. Royal Society of Medicine, 56 S. J. 107
— C.A.
10. Power to Re-hear.
See also Vol. I. 462, 1120.
Duty on Re-hearing.]— The Court of Appeal
is entitled and ought to re-hear a case as at
the time of re-hearing, and on a re-hearing
such a judgment may be given as ought to
be given if the case came at that time before
the Court of first instance. Att.-Gen. v.
Birmingham, Tame, and Rea Drainage Board,
82 L. J. Ch. 45; [1912] A.C. 788; 107 L. T.
353; 76 J. P. 481 ; 11 K G. R. 194— H.L. (E.)
Power to Refer Question to Expert,] — The
Court of Appeal has jurisdiction, without the
consent of parties, to refer questions to an
expert to enquire and report thereon. The
parties may waive formalities of procedure and
conduct the enquiry in a practical way, and
the Court is at liberty, but not bound, to adopt
wholly or partially the report of the referee. lb.
Injunction — Discharge — Evidence.] —
The Court of Appeal may discharge an injunc-
tion originally granted on good grounds, and
may receive further evidence even as to
matters which have occurred after the decision
appealed from. lb.
IV. TO DIVISIONAL COURT.
See also Vol. I. 464, 1121.
"Practice and procedure" — Order made by
Judge at Chambers Directing Solicitor to Pay
Money — Non-payment — Attachment.] —A writ
was issued by a firm of solicitors, H. and C,
purporting to act for the plaintiff. The plain-
tiff got this writ set aside and the action
stayed on the ground that he had not
authorised the issue of the writ, and the
solicitors, H. and C, were ordered to pay
the plaintiff's costs. An appeal against this
order was dismissed with costs against H.
and C. The costs not having been paid, the
plaintiff applied for a writ of attachment
against H., who alleged that he was not a
partner with C. A Judge a*^ chambers made
an order that the plaintiff should be at
liberty to issue a writ of attachment against
H. on the ground that he, being a solicitor,
had not complied with the orders for the
payment of the costs by the firm. Against
this order H. appealed to the Divisional
Court: — Held (on the authoritv of Marchant
In re (77 L. J. K.B. 695; [1908] 1 K.B.
998) ), that the appeal was not a matter
of practice and procedure, and that it was
rightly brought to the Divisional Court.
Haxby v. Wood Advertising i4genci/, 109L. T.
946— D.
Matter of Practice and Procedure — Solicitor
— Agreement in Writing — Summons to Set
Aside — Appeal from Chambers.] — Where a
summons is taken out at chambers, under
section 8 of the Attorneys and Solicitors Act,
1870, to set aside two agreements with regard
to payment for a solicitor's services, and for
delivery of a bill of costs, the matter is not
one of "practice and procedure" within the
meaning of section 1, sub-section 4 of the
Supreme Court of Judicature (Procedure) Act,
1894, and an appeal from the order of a Judge
at chambers lies to the Divisional Court, and
not direct to the Court of Appeal. Jackson,
In re, 84 L. J. E.B. 548; [1915] 1 K.B. 371;
112 L. T. 395; 59 S. J. 272; 31 T. L. R. 109
— D.
Appeal in Forma Pauperis — Defendant in
Court Below — Conditions Precedent.] — A de-
fendant in the Court below, to appeal to the
Divisional Court m forma -pauperis, must first
obtain a certificate of counsel that he has
reasonable grounds for so proceeding in addi-
tion to his affidavit as to lack of means.
Merrirnan v. Geach, 82 L. J. K.B. 87; [1913]
1 K.B. 37; 107 L. T. 703; 57 S. J. 146— D.
Court Divided in Opinion — Discretion of
Junior Judge to Withdraw Judgment.] —
Where, on an appeal to the Divisional Court
from a County Court, the Judges differ in
opinion, it is within the discretion of the
junior Judge, in accordance with the old
common law practice, to withdraw his judg-
ment. Per Lush, J. : Apart from the ques-
tion of practice, when once a litigant has
obtained a judgment in any Court, that
judgment ought to stand, unless a Court of
Appeal unanimously or by a majority decides
that the judgment of the Court below was
wrong. Poulton v. Moore, 83 L. J. K.B. 875 ;
109 L. T. 976 ; 58 S. J. 156 ; 30 T. L. R. 155
— D. See S. C. in C.A. 31 T. L. R. 43.
Absence of Respondent — Judgment — Appli-
cation to Re-enter— Jurisdiction.] — Where a
Divisional Court has allowed an appeal in
the absence of the respondent, a Divisional
Court has no power, on a subsequent applica-
tion by the respondent, to order the appeal
to be re-entered and re-argued. Hessian v
Jones, 83 L. J. K.B. 810; [1914] 2 K.B. 421;
110 L. T. 773; 30 T. L. R. 320— D.
Misdirection.]— By Order LIX. rule 7, no
motion by way of appeal from an inferior
Court " shall succeed on the ground merely
of misdirection . . . unless, in the opinion
of the Court., substantial wrong or miscarriage
has been thereby occasioned in the Court
below " -.—Held, that in the above rule " mis-
direction " does not only mean misdirection to
a jury, but covers a case where a Judge sitting
without a jury has misdirected himself.
Tullis d- Son. Lim. v. 'North Pole Ice Co.,
32 T. L. R. 114— D,
45
APPEAL— ARBITRATION, REFERENCE AND AWARD.
46
V. FROM JUDGE IN CHAMBERS.
See also Vol. I. 466, 1122.
Writ of Attachment — Refusal by Witness
to Produce Documents.]— A witness refused to
produce certain documents at an examination
under the Foreign Tribunals Evidence Act,
1856, whereupon an application was made in
chambers for leave to issue a writ of attach-
ment against him. The Judge refused to make
the order : — Held, that the Judge's order was
not made* in a criminal matter, inasmuch as
what was sought to be done by the writ of
attachment was to compel the witness to pro-
duce the documents, and not merely to punish
him, and therefore that an appeal lay from
the Judge's decision. Eccles v. Louisville
and Nashville Railroad Co., 56 S. J. 74;
28 T. L. R. 36— D.
APPOINTMENT.
See POWER.
APPORTIONMENT.
See also Vol. I. ill. 1123.
Provision against Alienation — Life Interest
— Income Accruing but not Received by
Trustees at Date of Alienation — Apportion-
ment Act, 1870.] — A testator gave a share in
his estate to trustees upon trust to pay the
income thereof to his son for life, but directed
that any income for the time being payable
to him " shall only be paid to him so long as
he shall not attempt to assign or charge the
same." The son by deed purported to assign
his life interest by way of mortgage to secure
t.-ioney lent. At the date of the mortgage the
trustees had in their hands a sum of 3561.
representing income of the son's share received
by them before that date, and they subse-
quently received a sum of S931. representing
income of the share received by them after
the date of the mortgage, of which sum 254?.
represented the apportioned part up to that
(];ite -.—Held, that the Apportionment Act,
1870, did not apply; that the effect of the
clause was to prevent the destination of the
income being finally determined until it had
actually accrued— that is, become payable to
the tenant for life; and that, although the
son or his mortgagee was entitled to the 356L.
neither of them was entitled to the 254i.
Sampson, In re; Sampson v. Sampson
(65 L. J. Ch. 406; [1896] 1 Ch. 630), applied.
Jenkins, In re; Williams v. Jenkins, 84 Ij. J.
Ch. 349; [1915] 1 Ch. 46— Sargant, J.
Bequest of " Arrears of rent " — Apportion-
ment— Gross or Net Rents.] — Bequest of all
arrears of rents due to testatrix at the time of
her death held to include the proportion of
rents for the current quarter, as apportioned
under the Apportionment Act, 1870, up to
March 4, the date of death, and to mean gross
rents without any deduction for outgoings
or otherwise. Dictum of Jessel, M.R., in
Hasluck V. Pedley (44 L. J. Ch. 143, 144;
L. R. 19 Eq. 271, 273), followed on the first
point. Ford, In re; Myers v. Molesworth,
80 L. J. Ch. 355; [1911] 1 Ch. 455; 104 L. T.
245 — Swinfen Eady, J.
Restriction upon Bequest of Company's
Articles— Private Company— Apportionment of
Dividends — " Public company."] — Notwith-
standing that section 5 of the Apportionment
Act, 1870, applies the Act to the dividends of
"public companies" only, the provisions of
the Act apply to companies which restrict the '
right to hold and transfer their shares, and,
under section 121 of the Companies (Consoli-
dation) Act, 1908, are classed as "private
companies," the expression " private com-
panies " in the later Act being only a
convenient way of referring to a particular
class of public companies. White, In re;
Theobald v. White, 82 L. J. Ch. 149; [1913]
1 Ch. 231; 108 L. T. 319; 57 S. J. 212—
Neville, J.
APPRENTICE.
See also Vol. I. 493, 1125.
Auctioneer — Absence of Licence — Avoidance
of Deed.] — An auctioneer who takes an appren-
tice under a deed, in which he describes
himself as an auctioneer, thereby impliedly
represents that he is licensed as an auctioneer,
and his failure to take out a licence avoids
the deed. Creaser v. Hurley, 32 T. L. R. 149
— D.
See also INFANT; MASTER AND
SERVANT.
APPROPRIATION.
Of Payments.]
Co. ; P.'iYMENT.
■ See Banker and Banking
ARBITRATION,
REFERENCE & AWARD.
I. The Submission.
1. In General, 47.
2. Stay of .Action as to Matters Referred A9.
II. The Arbitrator, 54.
III. The Umpire, 57.
IV. The Award, 57.
V. Costs, 59.
VI. St.atutory References, 59.
47
AKBITEATION, EEFERENCE AND AWARD.
48
I. THE SUBMISSION.
1. In General.
See also Vol. I. 519, 1126.
Bill of Lading — Disputes Concerning Inter-
pretation to be Decided Abroad.] — A clause in
a bill of lading provided that any disputes
concerning the interpretation of the bill of
lading were to be decided in Hamburg accord-
ing to German law : — Held, that this clause
must be treated as a submission to arbitration
within the meaning of section 4 of the Arbitra-
tion Act, 1889, and that, although a tribunal
at Hamburg was not specified, the contract
meant that disputes as to its interpretation
were to be tried by the competent Court in
Hamburg and in accordance with German law.
The Cap Blanco, 83 L. J. P. 23; [1913] P.
130; 109 L. T. 672; 29 T. L. E. 557—
Evans, P. Appeal withdrawn: see 83 L. J.
P. 23— C.A.
Charterparty— Bills of Lading— Assignment
— Cesser of Shipowner's Liability — Sub-
mission to Arbitration.] — The plaintiffs, who
were the owners of the steamship Den of
Mains, chartered her by charterparty dated
April 26, 1911, to the defendants M. & Co.,
to load a cargo of beans at Vladivostock, and
to proceed to a port in the United Kingdom and
there deliver the cargo " agreeably to bills of
lading." On June 10 a cargo of about 6,000
tons was loaded, and bills of lading made out
to the order of M. & Co. or their assigns were
signed by the master and handed to M. &
Co.'s representative. M. & Co. had, by a
contract dated April 27, 1911, sold the cargo
to the defendants the B. Co. on the terms
of a " basis delivered " contract, by clause 10
of which the contract was to be void as
regarded any portion shipped which might not
arrive. On June 12 the defendants M. & Co.,
under the contract of April 27, declared to the
B. Co. that the beans had been shipped by
steamship Den of Mains. On arrival of the
vessel at Liverpool, the port of discharge,
M. & Co. handed to the B. Co. the bills
of lading indorsed against a payment.
When the discharge had been completed it
was alleged that there was a shortage of
171 bags, and, the B. Co. having paid only in
respect of the quantity actually delivered,
M. & Co. instructed them to make a corre-
sponding deduction from the freight, but the
plaintiffs refused to acknowledge the claim
for short delivery. A dispute having thus
arisen, M. & Co. gave notice that they de-
manded an arbitration imder a clause in the
charterparty which provided for arbitration
" by arbitrators, one to be appointed by each
of the parties to this agreement, if necessary
the arbitrators to appoint a third," and for-
mally required the plaintiffs within seven clear
davs to appoint their arbitrator. The plain-
tiffs did not appoint an arbitrator, and the
defendants after the expiry of the seven days
gave notice of the appointment of a gentleman
to act as sole arbitrator. On a summons for
directions taken out by the plaintiffs. — Held,
first, that there was nothing in the contract
or the circumstances of the case to satisfv the
Court that it was the intention of the ship-
owners and charterers that the responsibility
of the former under the charterparty had
ceased; and secondly, that the submission to
arbitration came within section 6 of the Arbi-
tration Act, 1889. " Den of Airlie " Steamship
Co. V. Mitsui, 106 L. T.'451; 17 Com. Cas.
116; 12 Asp. M.C. 169— C.A.
Arbitration or Valuation — Construction of
Agreement.] — By an agreement the value of
certain shares was to be determined by two
valuers appointed by the parties or an umpire
appointed by the valuers in accordance with
the Arbitration Act, 1899 : — Held, that this
constituted an agreement to arbitrate as to
value, and not a mere agreement to have a
valuation. Taylor v. Yielding, 56 S. J. 253 —
Neville, J.
Construction of Arbitration Clause.] — A
contruct for the supply of certain machinery
to a company by the manufacturers contained
a clause referring disputes and differences to
arbitration, with a proviso that no dispute or
difference should be deemed to have arisen or
to be referred to arbitration " unless one party
has given notice in writing to the other of the
existence of such dispute or difference within
seven days after it arises." By a letter to the
manufacturers the company's engineer gave
notice of rejection of part of the machinery
supplied. After more than seven days' interval
the manufacturers wrote that they could not
accept the rejection. No formal notice was
given by either party of the existence of a
dispute. Objection having been taken to the
application of the arbitration clause, in respect
that no notice of the existence of a dispute had
been timeously given : — Held, that the proviso
with regard to notice had been duly complied
with and that the arbitration clause was
applicable, in respect that no dispute had
arisen until the manufacturers wrote refusing
to accept the rejection, and that their letter
of refusal itself constituted notice of the exist-
ence of a dispute. Howden v. Powell Duffryn
Steam Coal Co., [1912] S. C. 920— Ct. of Sess.
Arbitration Clause in Articles of Associa-
tion — Action Commenced by Member] —
Where the articles of association of a company
provide for differences to be referred to arbitra-
tion, this is to be treated as a statutory
agreement between the company and its
members, and constitutes a submission to
arbitration within the Arbitration Act, 1889.
Baker \. Yorkshire Fire and Life Assurance
Co. (61 L. J. Q.B. 838; [1892]' 1 Q.B. 144)
applied. Hickman v. Kent or Romney Marsh
Sheep Breeders' Association, 84 L. J. Ch. 688:
[1915] 1 Ch. 881 ; 113 L. T. 159 ; 59 S. J. 478
— Astbury, J.
The contract contained in the plaintiff's
application for membership of the company
also constituted a submission to arbitration,
and accordingly a stay of the action was
granted. Willesford v. Watson (42 L. J.
Ch. 447; L. E. 8 Ch. 473) applied. lb.
Condition Referring Disputes to Arbitration
— Reasonable Notice of Condition — Sale.] — A
member of the Glasgow Flour Trade Associa-
49
AR]:!ITKATIOX, KEFEEENX'E AXD AWARD.
50
tion sold flour to a purchaser (who was not a
member of the association), the terms of the
contract being contained in sale notes delivered
to and accepted by the purchaser. Each sale
note contained on the margin these words :
'"Any dispute under this contract to be settled
according to the rules of the Glasgow Flour
Trade Association." One of the rules of the
association provided that all disputes should
be referred to arbitration. No copy of the
rules was sent to the purchaser, and it did
not appear that he was aware of their terms :
— Held, that the purchaser had not received
reasonable notice of the condition referring
disputes to arbitration, and accordingly that
he was not bound by that condition. M'Connell
d- Reid V. Smith, [1911] S. C. 635— Ct. of
Sess.
Arbitration Clause in Contract — Failure of
Arbitration — Duty of Court.] — Where an arbi-
tration has become abortive it is the duty of a
Court of law, in working out a contract of
which such arbitration was part of the
machinery, to supply the defect. Cameron v.
Cuddy, 83 L. J. P.C. 70; [1914] A.C. 651;
110 L. T. 89— P.C.
Therefore, where in a contract for the sale
of goods it was agreed that the purchaser
should be entitled to deduct from the price
the value of any goods not delivered, such
value to be determined by arbitration, and
the arbitrators appointed were unable to
agree, the purchaser was entitled in an action
brought by the vendor to recover the contract
price, to apply to the Court to fix the value
of the goods not delivered and to deduct it
from the price due, without bringing a cross-
action, lb.
2. Stay of Action as to Matters Eeferred.
See also Vol I. 571, 1128.
Contract with Local Authority — Keference
to Engineer Carrying out Work — Action by
Contractor.'' — A local authority entered into a
contract with contractors for the execution of
certain sewage works which provided for the
works being completed to the satisfaction of
a named engineer and maintained for six
months afterwards, and which contained a
wide arbitration clause referring all disputes
to the same engineer. Disputes arose, and
the contractors alleged that the engineer had
in effect admitted that the works had long
since been completed to his satisfaction (which
the engineer denied), and that the mainten-
ance period had expired, and brought this
action for the balance of the contract price
against the local authority. On the summons
by the local authority to stay proceedings
under section 4 of the Arbitration Act, 1889,
— Held, that the action ought to be allowed
to proceed — per Cozens-Hardy, M.R., on the
ground that the cross-examination of the
engineer was essential to the determination of
the questions between the parties ; per Buckley,
L.J., on the ground that section 4 is permis-
sive only, and that the fact that the other
niember of the Court was of opinion that the
matter should not be referred was sufficient
reason to enable him to concur, though if it
had rested with himself alone he should have
directed a stay. Freeman v. Chester Rural
Council, 80 L. J. K.B. 695; [1911] 1 K.B.
783; 104 L. T. 368; 75 J. P. 132— C. A.
Claim for Extras — Whether within Arbi-
tration Clause.] — Held, on the construction of
a sewerage contract that a claim in respect of
extras did not fall within the scope of the
arbitration clause, and that consequently an
action brought to recover the amount of such
extras should not be stayed. Taylor v.
Western Valleys (Monmouthshire) Sewerage
Board, 75 J. P. 409— C.A.
Reference of Dispute to Building Owners'
Engineer — Dispute Arising on Settlement of
Final Account — Probable Conflict of Evidence
— Referee in Position of Judge and Witness
- Disqualiflcation of Referee — Action to
Recover Amount Due.] — The respondents exe-
cuted certain dock works for the appellants,
the owners of the dock, under a contract which
provided that disputes between the parties to
the contract were to be referred to the appel-
lants' engineer. After the completion of the
works, negotiations ensued between the respon-
dents and the engineer with reference to the
settlement of the final account, and a bona fide
dispute of a substantial character arose be-
tween the respondents and the engineer which
involved a probable conflict of evidence
between them. The respondents having
broken off the negotiations commenced an
action against the appellants to recover the
amount due to them under the contract. An
application by the appellants to stay the action
having been refused, on appeal, by the Court
of Appeal, — Held, that the fact that the
engineer, although by no fault of his own,
must necessarily be placed in the position of
judge and witness, was a suSicient ground why
the dispute should not be referred to him
under the contract; and that the Court could,
under the circumstances and in the exercise of
the discretion vested in it by section 4 of the
Arbitration Act, 1889, refuse to stay the action.
Bristol Corporation v. Aird, 82 L. J. K.B.
684; [1913] A.C. 241; 108 L. T. 434; 77 J. P.
209; 29 T. L .R. 360-H.L. (E.)
Questions of Law — Life Insurance Policy .1
— A life insurance policy provided that
it should not cover death by war, and the
policy contained an arbitration clause. The
assured lost his life by the explosion which
caused the loss of H.M.S. Bulwark, and his
executrix brought an action on the policy
against the insurance company. The defen-
dants applied to have the action stayed. The
plaintiff contended that as serious questions of
law were involved the case ought not to be
sent to arbitration : — Held, that the Court was
not justified in refusing the application merely
because there were important questions of law
to be considered, and that as no sufficient
reason had been shewn why the contract to
submit to arbitration should not be observed
the action must be stayed. Lock v. Army,
Navy, and General Assurance Association,
31 T. L. R. 297— Astburv. J.
51
ARBITEATIOX. REFERENCE AND AWARD.
52
Questions of Law Unsuited for Arbitration
— Discretion of Court.] — Where a contract
contains an agreement to refer disputes to
arbitration, the Court will, as a rule, stay pro-
ceedings in an action on the contract, even
though difficult questions of law are involved,
provided such questions cannot be dealt with
until the facts have been ascertained. The
action may be allowed to proceed so far as
regards matters which are outside the scope
of the arbitration clause, and do not involve
substantially the same facts and rights as fall
to be determined by the arbitrator. Roive v.
Crossley, 108 L. T. 11; 57 S. J. 144— C.A.
Arbitrator Acting Unreasonably — Engineer
of Works. — Whore in a contract for the
execution of works there is a clause referring
disputes to an officer — for example, the en-
gineer— of the local authority, and where facts
subsequent to the contract have given rise to a
substantial dispute in which there are allega-
tions of continued unreasonableness on the
part of the engineer, and that is the real dis-
pute between the parties, the Court will not
order an action on the contract by the con-
tractor to be stayed under the arbitration
clause. Blackwell v. Derby Corporation,
75 J. P. 129— C.A.
Submission to Arbitration — Contract for
Construction of Works — Action for Fraudulent
Misrepresentation Inducing Contract.] — A con-
tract for the construction of sewerage works
for an urban district council contained a clause
referring to arbitration any dispute which
might arise between the contractor and the
council upon or in relation to or in connection
with the contract. The contractor brought an
action against the council, alleging that he
had been induced to enter into the contract
by a fraudulent misrepresentation on the part
of the defendants as to the nature of the soil
on the site of the works, and he claimed
damages for such fraudulent misrepresentation,
and also claimed for work and labour done :—
Held, that the action was not one which could
be stayed and referred to arbitratitm under the
arbitration clause. Monro v. Bognor Urban
Council, 84 L. J. K.B. 1091; [1915] 3 K.B.
167 ; 112 L. T. 969 ; 79 J. P. 286 ; 13 L. G. R.
431; 59 S. J. 348— C.A.
Lease Containing Arbitration Clause —
Action by Lessors Claiming Rectification.]^ —
A lease contained a clause providing that "any
dispute, difference, or question which may at
any time arise . . . touching the construction,
meaning, or effect of these presents, or any
clause or thing herein contained, or the rights
or liabilities of the said parties respectively,
or any of them under these presents or other-
wise howsoever in relation to these presents "
should be referred to arbitration. An action
was commenced by the lessors against the
lessees claiming (inter alia) rectification of the
lease. The lessees moved, pursuant to
section 4 of the Arbitration Act, 1889, that all
proceedings in the action should be stayed and
that the matters in difference should be re-
ferred to arbitration under the terms of the
lease : — Held, that a claim for rectification
did not fall within the arbitration clause, and
therefore that the Court would not stay the
action and refer the question to arbitration.
Printing Machinery Co. v. Linotype and
Machinery, Lim., 81 L. J. Ch. 422; [1912]
1 Ch. 566; 106 L. T. 743; 56 S. J. 271;
28 T. L. R. 224— Warrington, J.
Berth Note — StcYedoring Rate — "Dispute"
— "Arising at loading ports."] — The plain-
tiffs' steamer loaded grain at a foreign port
under a berth note which provided that the
defendants, the freighters, should be in effect
the ship's agents, and should do the stevedor-
ing at a certain rate, and that " in case of
any dispute arising at loading ports " it should
be submitted to arbitration in the foreign
country. The account for the stevedoring was
submitted to the master of the steamer, who
signed it without objection, and it was sent
by the defendants to the plaintiffs, and the
amount was deducted from the advance freight
due to the plaintiffs. The plaintiffs com-
plained to the defendants in London that the
stevedoring rate as shewn in the account was
not reckoned in the customary way, and
brought an action to recover the amount which
they alleged to be overcharged : — Held, that
" dispute " meant not " disputation," but
" matter in dispute," and therefore that the
dispute was one " arising " at the loading
port, and should be submitted to arbitration,
and the proceedings must be stayed under
section 4 of the Arbitration Act, 1889. The
Datvlish, 79 L. J. P. Ill; [1910] P. 339;
103 L. T. 315; 11 Asp. M.C. 496— D.
Bill of Lading — Arbitration Clause.] — A
case of gold coin belonging to the plaintiffs was
shipped on board the defendants' German
steamship at Hamburg for delivery at a port
in South America. The bill of lading, by
clause 14, provided that disputes " concerning
the interpretation " of the document were to
be decided in Hamburg according to German
law. The vessel called at Southampton on
the outward voj'age, failed to deliver the case
on arrival in South America, and called again
at Southampton on her return voyage, when
the plaintiffs arrested her and brought their
action in rem in the Admiralty Division. The
defendants alleged that the claim was covered
by the exceptions in the bill of lading :—
Held, that the action involved a dispute "con-
cerning the interpretation " of the bill of
lading under clause 14, and must therefore be
staved under section 4 of the Arbitration Act,
1889. The Cap Blanco, 83 L. J. P. 23 ; [1913]
109 L. T. 672; 12 Asp. M.C. 399; 29 T. L. R.
557 — Evans, P. Appeal withdrawn; see
83 L. J. P. 23— C.A.
Charterparty — Arbitration Clause — Bill
of Lading — Conditions as per Charterparty —
Incorporation of Arbitration Clause — Action
for Demurrage.] — A charterparty for the car-
riage of a cargo of timber stipulated for the
discharge of the cargo with customary dispatch
and for payment of demurrage in the event
of the ship being longer detained, and pro-
vided that any dispute or claim arising out
of any of the conditions of the charterparty
should be settled by arbitration. The bill of
lading given for the cargo contained the words
r)3
AEBITEATIOX, EEFERENXE AND AWARD.
54
" all other terms and conditions and excep-
tions of charter to be as per charterparty."
The shipowners having brought an action for
demurrage against the holders of the bill of
lading to whom the cargo had been consigned,
— Held, that the arbitration clause of the
charterparty was not incorporated into the
bill of lading so as to entitle the defendants
to have the action stayed. Hamilton v.
Mackie (5 T. L. R. 677) followed. The
Portsmouth, 81 L. J. P. 17; [1912] A.C. 1;
105 L. T. 257; 12 Asp. M.C. 23; 55 S. J. 615
— H.L. (E.)
Contract — Outbreak of War — Impossibility
of Performance — Avoidance of Contract.] — A
contract was entered into on August 1, 1914,
for the purchase of beetroot sugar to be
delivered in the month of August at Hamburg.
The contract provided for the reference of all
disputes thereunder to arbitration, and it was
also provided that in the event of Germany
being involved in war with England the con-
tract should be deemed to be closed at the
average quotation of the sugar and the accounts
made up, and that all differences should be
due immediately from one party to the other.
On July 31 the German Government had
placed an embargo on the exportation of beet-
root sugar, and on August 4 war was declared
between England and Germany. The sellers
contended that the contract had become illegal
and void and could not be enforced by either
party, and that the arbitration clause there-
fore could not be applied : — Held (affirming
Warrington, J.), that as the outbreak of war
had been expressly provided for by the con-
tract, and as in that event there was no
obligation to deliver the sugar, but instead of
that an obligation to pay an ascertainable sum
of cash, the contract had not been avoided by
the outbreak of war, and any dispute under
it must be referred to arbitration. Held, also,
that the embargo on the export of sugar did
not render the contract illegal or release the
parties to it from the obligation of perform-
ance, as it was not necessary for its perform-
ance that the sugar should be delivered on
board, and it might have been warehoused
under the contract. Smith, Coney i Barrett
V. Becker, Gray d- Co., 84 L. J. Ch. 865;
112 L. T. 914; 31 T. L. R. 151— C. A.
Contract — Outbreak of War — Impossibility
of Delivery — Arbitration Clause — Action.] —
Before the outbreak of war between England
and Germany the plaintiffs contracted to buy
from the defendants a quantity of sugar which
was in Hamburg and which was to be shipped
by the defendants. The contracts provided
that in the event of Germany being involved
in war with England they should be deemed
to be closed, and that if war should prevent
shipment any party should be entitled to go to
arbitration. Owing to the outbreak of war
the defendants were unable to ship the sugar,
and the plaintiffs brought an action against
the defendants, claiming a declaration that
the contracts were suspended or dissolved and
an injunction restraining the defendants from
proceeding with arbitration. On an applica-
tion by the defendants for an order that the
action be stayed under section 4 of the Arbi-
tration Act, 1889, the Judge refused to make
the order : — Held, that as the question between
the parties was whether the contracts were
alive or dead, it was in the Judge's discretion
to say that it was not a proper question to be
submitted to arbitration. Grey <f- Co. v.
Tolme (Xo. 1), 59 S. J. 218; 31 T. L. R. 137—
C.A.
"Step in the proceedings" — County Court
— Notice of Intention to Defend.] — The plain-
tiffs had supplied the defendants with certain
goods under a contract which contained a term
that disputes between the parties should be
submitted to arbitration. A sum of money
being alleged to be due to the plaintiffs for
goods so supplied, proceedings were taken in
the County Court for its recovery, and a default
summons was served upon the defendants,
who filled up the slip attached to the sum-
mons giving notice of their intention to defend
the action. The defendants subsequently ap-
plied to the learned Judge for a stay of the
action under section 4 of the Arbitration Act,
1889. The section provides that : " If any
party to a submission . . . commences any
legal proceedings in any court against any
other party to the submission ... in respect
of any matter agreed to be referred, any party
to such legal proceedings may at any time
after appearance, and before delivering any
pleadings or taking any other steps in the pro-
ceedings, apply to that court to stay the
proceedings, and that court . . . may make an
order staying the proceedings." It was con-
tended on behalf of the plaintiffs that the state-
ment by the defendants on the slip attached
to the default summons of their intention to
defend was a step in the proceedings, since it
entitled them to raise any defence other than
a special defence, of which notice must be
given, and that, consequently, they were not
entitled to apply for a stay of the proceedings.
The learned Judge gave effect to this conten-
tion, and refused to stay the action : — Held,
that the giving notice of an intention to defend
by filling up the slip attached to the default
summons was merely the equivalent of entering
appearance in the High Court, and that the
defendants had not taken any step in the pro-
ceedings after appearance which disentitled
them to applv for a stav. Austin and Whiteley
V. Bowley, 108 L. T. 921— D.
Application for Stay.] — Attendance
before the Master and acquiescence without
protest in an order which is made subject to
the production of a certain document to the
Master which is ultimately produced is taking
a step in the proceedings within the meaning
of section 4 of the Arbitration Act, 1889, and
the defendant is thereby precluded from mov-
ing to stay proceedings under that section.
Cohen v. Arthur, 56 S.'J. 344— Neville, J.
II. THE ARBITRATOR.
See also Vol. I. 587, 1132.
Jurisdiction — Award — Condition Precedent —
" Dispute arising during tenancy " — Finding
of Fact.] — .\n arbitrator cannot give liimself
jurisdiction by a wrong decision, collateral to
ARBITRATION, REFERENCE AND AWARD.
56
the merits, as to facts on which the limits to
his jurisdictiou depends. In a case where it
was a condition precedent to the arbitrator's
jurisdiction tliat the dispute should have arisen
during a tenancy between the plaintiff and
the defendant, and where the arbitrator was
not authorised by the submission to decide this
preliminary question : — Held, that the arbi-
trator could not clothe himself with jurisdic-
tion by finding this preliminary fact in favour
of the plaintiff, so as to bind the defendant.
May V. Mills, 30 T. L. R. 287— Lord
Coleridge, J.
Powers of Arbitrator — Submission of all
Matters in Difference — New Ground of Defence
— Amending Points of Defence.] — Where
points of claim and points of defence have been
delivered by the parties to an arbitration, the
arbitrator is not bound to allow an amendment
by the defendant setting up a defence not dis-
closed by the points of defence. It is within
the discretion of the arbitrator to admit or
refuse to allow such an amendment, but he must
exercise his discretion on judicial principles.
Crighton v. Law Car and General Insurance
Corporation, 80 L. J. K.B. 49; [1910] 2 K.B.
738 ; 103 L. T. 62— D.
Admission by Arbitrator of Inadmissible
Evidence — Legal Misconduct — Inconclusive
Award.] — A contract for the sale of sugar
contained no provision for the suspension of
deliveries " if the production by the sellers
was prevented or lessened by causes beyond
their control," nor any similar clause. Owing
to a cause beyond their control, the production
by the sellers was " prevented or lessened,"
and they suspended delivery. Disputes having
arisen, recourse was had to arbitration. A
former contract between the parties containing
such a suspension clause as the above was
produced to the arbitrator by the sellers. The
arbitrator made an award simply that " the
sellers are entitled to suspend delivery under
this contract." The Court were satisfied that,
in making this award, the arbitrator was in-
fluenced by the terms of the earlier contract :
— Held, the award must be set aside, the
arbitrator having been guilty of legal mis-
conduct, inasmuch as he had, in making the
award, looked to a document other than the
contract, which was the only matter before
him, or, in other words, had allowed to be
given, and had acted upon, evidence which
was wholly inadmissible, and which went to
the root of the question submitted to him for
decision. Held, further, that the award was
inconclusive, and on that ground could not
stand. Walford, Baker d Co. v. Macfie,
84 L. J. K.B. 2221 ; 113 L. T. 180— D.
Refusal of Arbitrators to Appoint Umpire —
Parties — Service on Arbitrators.] — A dispute
iirose upon a cimtract of sale which the parties
submitted to arbitration. Arbitrators were
appointed who were to appoint an umpire
under section 5 of the Arbitration Act, 1889.
The purchasers under the contract served a
notice on the arbitrators to appoint an umpire,
hut the arbitrators failed to do so. The pur-
chasers then applied to the Court to appoint
an umpire. The arbitrators were made
respondents, but the vendors under the con-
tract were not respondents as they were resi-
dent outside the jurisdiction. The vendors'
arbitrator contended that he was not a proper
party to the summons, and that the vendors
ought to be made parties. The Master and
the Judge in chambers made orders appoint-
ing an umpire, with liberty to the vendors to
apply to discharge the order, costs to be costs
in the arbitration : — Held, that the objection
as to the form of the summons was not a valid
objection and that the arbitrators were pro-
perly brought before the Court. Taylor v.
Denny, Mott d- Dickson, 82 L. J. K.B. 203;
[1912] A.C. 666; 107 L. T. 69; 76 J. P. 417
— H.L. (E.)
Decision of Court of Appeal, sub nam.
Denny, Mott d- Dickson, Lim. v. Standard
Export Lumber Co. (81 L. J. K.B. 811 ; [1912]
2 K.B. 542), affirmed. 76.
Proceedings Subsequent to Arbitration — Oral
Evidence by Arbitrator Amplifying Award —
Liability to Cross-examination — Admittance of
Evidence in Rebuttal.] — In June, 1913, the
claimants, E. & Co., effected an insurance
with the respondents, an insurance company,
whereby the insurance company agreed that,
if at any time during the period covered by
the policy the premises of the claimants should
be destroyed by fire and their business should
be thereby interfered with or interrupted, they
would pay to the claimants monthly until such
time as the reduction in turnover in conse-
quence of the fire should have ceased (but not
exceeding in all nine months), on account of
annual net profit and charges as therein set
forth, the same percentage on the amount by
which the turnover in each month should in
consequence of the fire be less than the turn-
over for the corresponding month of the year
preceding the fire as the sum or sums thereby
insured should bear to the total of the turn-
over for the last financial year. It was
provided that the amount of the losses under
the policy should be assessed by the claimants'
auditors, Messrs. L. & G. A condition on the
back of the policy provided for reference to
arbitration of all differences arising out of the
policy. The premises of the claimants were
destroyed by fire on July 22, 1913, a date
within the period covered by the policy. G.,
a member of the firm of L. & G., duly assessed
the amount of the loss suffered by the claim-
ants in respect of profits for the period of nine
months succeeding the fire. Differences having
arisen in regard to the payments under the
policy, the parties went to arbitration. G.
was called as a witness by the claimants at
the arbitration proceedings, and stated that
although it did not appear on the face of the
assessments he was at the time of signing the
same satisfied that the losses of the turnover
respectively therein stated were in fact sus-
tained in consequence of the fire. There was
no suggestion of any fraud on the part of the
assessor : — Held, that as G., whether regarded
as an arbitrator or an assessor, had been
called to give oral testimony he could be cross-
examined on all relevant issues, and conse-
quently could be cross-examined here to shew
that he had failed to take into account certain
considerations necessary for arriving at the
ARBITRATION, REFERENXE AND AWARD.
53
reduction in the turnover of the claimants due
solely to the fire. Held, also, that the insur-
ance company were entitled to give evidence
for the purpose of establishing the same con-
tention. Held, also, that upon the construc-
tion of the policy the assessors, if they had
properly directed themselves in law, were
empowered to determine the amount payable
to the assured under the policy, and that such
determination would be conclusively binding
on the insurance company. Recher v. North
British and Mercai^tile Insurance Co., 84 L. J.
K.B. 1813; [1915] 3 K.B. 277— D.
Buccleuch (Duke) v. Metropolitan Board of
Works (41 L. J. Ex. 137 ; L. E. 5 H.L. 418)
considered and distinguished. lb.
Professional Man Acting as Arbitrator —
Right to Remuneration.] — A professional man
undertaking the duties of an arbitrator without
any stipulation as to payment cannot be pre-
sumed to be giving his services gratuitously,
and is therefore entitled to remuneration.
Macintyre v. Sinith, [1913] S. C. 129— Ct. of
Sess.
in. THE UMPIEE.
See also Vol. I. 629, 1137.
Refusal of Arbitrators to Appoint.] —
See Taylor v. Denny, Mott & Dickson, supra.
IV. THE AWARD.
See also Vol. I. 687, 1137.
Power to Set Aside Award — Submission —
Specific Question of Law — Erroneous Deci-
sion.]— ^^'here a specific question of law has
been submitted to an arbitrator and he has
answered it, his award cannot be set aside on
the ground that his decision is wrong in point
of law. King and Duveen, In re, 82 L. J.
K.B. 733; [1913] 2 K.B. 32; 108 L. T. 844
-D.
Clause that all Disputes Arising out of
Contract be Referred to Arbitration —
Jurisdiction of Arbitrators to Find that
Custom Exists and Applies to Contract.] —
By a contract made in May, 1912, the P. Com-
pany sold to the O. Company a specified
quantity of Soya beans to be shipped from an
Oriental port to Hull, and it was provided that
■' in case of re-sales copy of original appro-
priation shall be accepted by buyers," and,
further, that all disputes arising out of the
contract should be referred to arbitration. By
a similar contract made in September, 1912,
the P. Company contracted to purchase from
the E. Company a like quantity of the same
commodity with a view to the fulfilment of the
earlier contract. In February, 1913, the
E. Company made a tender or appropriation
to the P. Company of a shipment by a speci-
fied ship, and shortly thereafter the P. Com-
pany made a tender of the same shipment to
the O. Company. At the time of the tender
by the E. Company it was not known, but at
the time of the tender by the P. Company it
was known as a fact that the ship and cargo
were lost. A question arose between the P.
Company and the 0. Company whether the
tender or appropriation by the P. Company
was valid, seeing that at the time it was made
it was known that the cargo was lost. The
question was referred to arbitration, and came
before an arbitration committee of the parti-
cular trade, w^hich stated a Case raising the
question. The Divisional Court, expressing
a consultative opinion only, answered the
question in the negative, and held that the
tender was not valid (see 84 L. J. K.B. 281 ;
[1915] 1 K.B. 233). The matter then went
back to the committee, which, notwithstanding
the opinion of the Divisional Court, made an
award finding that, by the custom of the trade
in case of re-sales, buyers impliedly agreed
with their sellers to accept the original appro-
priation, and determining that the tender was
valid. The 0. Company moved to set aside
the award on the ground that it was bad on
the face of it. The Divisional Court took the
view that it was not competent for the arbi-
tration committee to find conclusively whether
or not the custom existed and formed part of
the contract, and that if on enquiry it
appeared that the custom did not exist, the
award ought to be set aside as having been
made without jurisdiction, and that Court
accordingly made an order adjourning the
motion with a view to hearing evidence as to
the existence of the custom : — Held, with
reluctance and as being bound by authority,
that the order of the Divisional Court was
right. Hutcheson v. Eaton (13 Q.B. D. 861)
and North-Western Rubber Co. and Hutten-
bach ,f Co., In re (78 L. J. K.B. 51; [1908]
2 K.B. 907). discussed and followed. Olympia
Oil and Cake Co. and Produce Brokers Co.,
In re (No. 2), 84 L. J. K.B. 1153: 112 L. T.
744_C.A. Reversed in H.L.. 85 L. J. K.B.
160; 60 S. J. 74; 32 T. L. R. 115.
Arbitration Clause in Contract — Dispute —
Reference to Arbitrator — Subsequent Action —
Award after Action Brought — Plea of Award
in Bar of Action — Ouster of Jurisdiction.] —
The award of an arbitrator purporting to
determine a dispute is no bar to an action
pending at the date of the award in respect
of the same dispute, where the agreement for
arbitration has been entered into before the
action was brought and the award has been
made without notice to the plaintiff and with-
out his knowledge or consent, and where an
order to stay the action has not been obtained
under section 4 of the Arbitration Act, 1889 :
— So held by Fletcher Moulton, L.J., and
Farwell, L.J. Doleman v. Ossett Corpora-
tion, 81 L. J. K.B. 1092 : [1912] 3 K.B. 257 ;
107 L. T. 581; 76 J. P. 457; 10 L. G. R. 915
— C.A.
A contract between the plaintiffs and the
defendants contained a clause providing that
any dispute thereunder should be referred to
and decided by the defendants' engineer, who
should be competent to act without formal
reference or notice to the parties or either of
them, and whose awards should be final and
binding upon the parties Disputes within
the scope of that clause arose between the
parties. The plaintiffs brought an action
against the defendants in respect of these
disputes, and no order to stay the action was
59 ARBITRATIOX, REFERENX'E AND AWARD— ARMY AXD XAVY. 60
obtained under section 4 of the Arbitration
Act, 1889. Subsequently, during the pend-
ency of the action, without previous notice to
the" plaintiffs, and without their knowledge or
consent, an award was made by the engineer
determining the disputes. The action pro-
ceeded, and the pleadings raised questions of
fact which were substantially the sarne as
those that had been decided by the engineer,
and also the question of law whether in the
circumstances the award was conclusive and
binding on the plaintiffs and prevented them
from maintaining the action. An order was
made that the question of law should be tried
before the other questions in the action, and
the Judge who tried it decided that the award
of the engineer was binding on the parties,
though made after writ -.—Held, by the Court
of Appeal, that this decision was wrong and
should be reversed, and that the action should
proceed to trial. lb.
V. COSTS.
See also Vol. I. 753, 1142.
Costs of and Incident to Arbitration — Case
Remitted to Arbitrator to Deal with such Costs
— Death of Arbitrator.] — An arbitrator stated
a Special Case, and directed that if any of his
alternative awards in favour of the claimants
were upheld by the Court, the parties to the
arbitration were to pay the costs of and inci-
dental to the arbitration in certain proportions.
The Court of Appeal decided that the claimants
bad no right to the return of any money, and,
allowing the appeal of the corporation with
costs, remitted the Case to the arbitrator for
him to deal with the costs of and incidental to
the arbitration. The arbitrator having died,
a summons was taken out by the corporation
to tax these costs according to the award : —
Held, that either intentionally or per in-
curiam, no costs were given in the award in
the events which had happened, and therefore
there could be no order to tax under the
award. Stanley and Nuneaton Corporation,
In re, 59 S. J. 104— C.A.
VI. STATUTORY REFERENCES.
Under Lands Clauses Act.] — See Lands
Clauses Act.
ARCHITECT.
See WORK AND LABOUR.
ARMY AND NAVY.
See also Vol. I. 794, 1147.
Incitement to Mutiny — Indictment. 1 — It is
not necessary in an indictment under section 1
of the Incitement to Mutiny Act, 1797, to
designate any particular person in His
Majesty's forces who is sought to have been
seduced from his duty and allegiance by the
accused. Rex v. Bowman, 76 J. P. 271;
22 Cox C.C. 729— Horridge, J.
It is for the jury to say whether a publica-
tion by the accused was an inducement to
soldiers to disobey their officers in the event
of a strike, or whether it was merely a
comment upon armed military force being
used by the State for the suppression of
industrial riots. lb.
Summons Charging that Defendant did
"buy. detain, or receive military property" —
One Offence.] — A summons under the Army
Act, 1881, s. 156, sub-s. (a), which charges
that the defendant did unlawfully " buy,
detain, or receive from soldiers, or other
persons acting on their behalf," military pro-
perty, does not charge several offences, but
one offence, under the statute, and a general
conviction on such summons is not bad for
uncertainty. Rex v. Tyrone Justices, [1915]
2 Ir. R. 162— K.B. D.
Bribery of Army Officer to Shew Favour in
Matter of Canteen Contracts.] — It is a
common law misdemeanour for an officer who
has a duty to do something in which the
public are interested to receive a bribe either
to act in a manner contrary to his duty or to
shew favour in the discharge of his functions.
It is therefore a misdemeanour at common
law for the colonel of a regiment to receive
a bribe to shew favour in the matter of a
canteen contract for the regiment. Rex v.
Whitaker, 84 L. .J. K.B. 225 : [1914] 3 K.B.
1283 ; D2 L. T. 41 ; 79 J. P. 28 ; 58 S. J. 707 ;
24 Cox C.C. 472; 30 T. L. R. 627— CCA.
Prohibition of Importation of Arms — Pro-
clamation— Seizure — Forfeiture.] — Section 43
of the Customs Consolidation Act, 1876.
provides that " The importation of arms,
ammunition, gunpowder, or any other goods
may be prohibited by proclamation or Order
in Council" : — Held (by Cherry, L.C.J. , and
Dodd, J.; Kenny, J., diss.), that in a pro-
clamation under the section the area into
which importation is prohibited may be
limited, and that a Royal proclamation pro-
hibiting the importation of arms, ammunition,
and the component parts of arms, empty cart-
ridge cases, explosives and combustibles for
warlike purposes into Ireland, was valid under
the authority of the section. Held, also
(by Cherry, L.C.J. , and Dodd, J.), that
where goods are imported in violation of such
a proclamation, the fact that a Customs officer
who seizes the goods causes or permits them
to be destroyed before proceedings are taken
to have them condemned, does not give the
owner of the goods any right of action against
him. Hunter v. Coleman, [1914] 2 Ir. R. 372
—K.B. D.
Liability of Commanding Officer of Yolun-
teer Forces for Bank Overdraft.] — In October,
1906, on the instructions of the commanding
officer of a Volunteer regiment, an account
was opened with a bank, headed " R.S.F.
2nd Volunteer Battalion Finance Committee.
61
ARMY AND NAVY— ASSIGNMENT.
62
Cheques to be signed by any two members of
the Committee." The sums paid to the credit
of the account consisted mainly of sums paid
directly to the bank by the War Office, while
the drafts upon the account were made by
cheques stamped " On his Majesty's Service,"
and signed by two members of the finance
committee, one of whom was, as a rule, though
not in every instance, the commanding officer.
On the transference of the corps to the Terri-
torial Force in 1908 there was a large debit
balance on the accoimt, for which the War
Office and the county association refused to
accept liability. The bank sued the conmiand-
ing officer for the amount of the overdraft : —
Held, that the defender was not liable as,
first, neither section 25 of the Volunteer Act,
1863, nor the Volunteer Regulations of 1901
(which vested the property of the regiment
in the commanding officer) imposed any liabi-
lity upon him for such a debt ; and secondly,
it was not proved that he had as an individual
entered into any contract with the bank which
could infer personal liability against himself.
National Bank of Scotland v. Shaic, [1913]
S. C. 133— Ct. of Sess.
Territorial Forces — Occupation of Premises
— Rateability.] — See Poor Law.
ARRANGEMENT,
DEEDS OF.
See BANKRUPTCY.
ARREST IN CIVIL CASES.
See ATTACHMENT ; CONTEMPT OF
COURT.
ARREST IN CRIMINAL
CASES.
See CRIMINAL LAW.
ARTICLES.
Of Association.]— 5ee Company.
For Settlement.] — See Settlement.
Of Partnership.]— See Partnership.
Of Peace. 1— See Criminal Law.
ASSAULT.
Tramway Authority — Liability for.]— See
Master and Servant.
ASSESSED TAXES.
See REVENUE.
ASSETS.
See COMPANY; EXECUTOR AND
ADMINISTRATOR.
ASSIGNMENT.
1. Property Assignable, 62.
2. WJiat Amounts to an Assignment, 64.
3. Construction and Validity, 64.
4. Rights and Liabilities of Assignee, 65.
1. Propeety Assignable.
See also Vol. I. 825, 1155.
Of Part of a Debt.]— Part of a debt is not
assignable within the provisions of the Judi-
cature Act. Opinion of Bray, J., in Forster
V. Baker (79 L. J. K.B. 664; [1910] 2 K.B.
636) concurred in. Decision of Darling, J.,
in Skipper a- Tucker v. Holloway (79 L. J.
K.B. 91 ; [1910] 2 K.B. 630) dissented from.
But the assignee of part of a debt may main-
tain a common law action in respect of such
part, where all persons interested in the debt
or in resisting it are parties to the action.
Conlan v. Carlow County Council, [1912]
2 Ir. R. 635— K.B. D.
Assignability of Right to Damages for
Waste.] — An assignment of the right to re-
cover damages for voluntary waste is void
both at law and in equity. Defries v. Milne,
82 L. J. Ch. 1; [1913] 1 Ch. 98; 107 L. T.
593; 57 S. J. 27— C.A.
By deed dated November 9, 1906, the plain-
tiff obtained a lease of premises for a term of
some 41^ years. One of the lessee's covenants
was substantially to repair and maintain the
premises. The plaintiff took the lease as
trustee for a company, and the company at
once went into occupation of the premises. In
1909 the company went into voluntary liquida-
tion, and on May 2, 1911, the licjuidator agreed
to sell the tenant's fixtures on the premises
to the defendant, and by clause 14 of the
agreement the company granted him a licence
to go into occupation of the premises until
September, 1911, upon certain conditions,
which included provisions that the defendant
63
ASSIGNMENT.
64
was not to do anything vrhich if done by the
lessee would be a breach of any of the
covenants and conditions in the lease, and
that he was to make good to the satisfaction
of the lessor all damages done in removing the
tenant's fixtures. On November 6, 1911, the
company released its interest in the premises
to the plaintiff, and assigned to him the benefit
and advantage of clause 14 of the agreement
of May 2, 1911, and the full power and
authority to enforce the obligations of the
defendant under that clause. In an action by
the plaintiff claiming damages from the defen-
dant for breaches of clause 14 and for wilful
waste, Warrington, J., dismissed so much of
the action as related to the claim for wilful
waste : — Held, by the Coui-t of Appeal — first,
that the plaintiff had no direct claim against
the defendant because he had not himself
sustained any damage through the alleged acts
of wilful waste ; and secondly, that he had no
indirect claim in respect of damages sustained
by the company because the deed of Novem-
ber 6, 1911, did not contain an assignment of
the company's right to such damages, and
because such an assignment would in any case
be void as being an assignment of a right to
recover damages in respect of a tort. lb.
Damages when Recovered in Pending
Action of Tort.^ — An assignment for valuable
consideration by the plaintiff in a pending
action of tort to one of his creditors of the
sum of money to which he may become entitled
by virtue of the action, inasmuch as it is not
an assignment of a mere right of action, but
of property to come into existence in the
future, is not invalid as savouring of cham-
perty or maintenance. Glegg v. Bromley,
81 L. J. K.B. 1081 ; 106 L. T. 825— C. A.
Contract to Supply Goods — Rights of Seller
and Assignee.] — By a contract in writing the
defendants agreed to supply B. H. with 10,000
tons of coal for delivery between July, 1911,
and June 30, 1912, in about equal monthly
quantities. The defendants had had business
dealings with B. H. for some years, knew the
class of business he was carrying on, and for
personal reasons had fixed a specially low
price for the coal in question. On Feb-
ruary 13, 1912, B. H. assigned to the plaintiff
this contract, together with his business of a
coal merchant, but the defendants refused to
recognise the assignment or make further
deliveries under the contract : — Held, that the
contract was not one which was assignable at
law. Cooper v. Mickleiield Coal and Lime
Co., 107 L. T. 457 ; 56 S.' J. 706— Hamilton, J.
Covenant — Mortgage — Transfer by Execu-
tors of Deceased Mortgagor — Covenant of
Indemnity by Transferee — Assignment of
Benefit of Covenant — Action against Trans-
feree by Assignee of Benefit of Covenant —
Liability.] — The executors of a mortgagor whr)
died insolvent assured the mortgaged property
to a transferee, who covenanted to pay to the
mortgagees the principal moneys secured to
them, and to indemnify the executors and the
estate and effects of the deceased mortgagor
against all proceedings in respect of the non-
payment of the mortgage debts : — Held,, that
a deed by which the executors purported
without consideration to assign the benefit of
the covenant of indemnity to an assignee was
inoperative, and that the covenant was not
capable of assignment. Rendall v. Morphew,
84 L. J. Ch. 517 ; 112 L. T. 285— Eve, J.
2. What Amounts to an Assignment.
See also Vol. I. 880, 1157.
Equitable Assignment — Loan to Building
Society — Charge on Property — Action for Re-
ceiver— Secured Creditor.] — The plaintiff ad-
vanced money to a building society for the
repayment of which the funds and property
of the society were made liable, and brought
an action for a receiver and declaration of
charge. The society alleged that the plaintiff
had no cause of action as a secured creditor,
and moved to stay proceedings : — Held, that
the funds of the society being appropriated
for the repayment of the loan, there was a
good equitable assignment, and therefore a
good cause of action. Baker v. Landport and
Mid-Somerset Benefit Building Society,
56 S. J. 224— Eve, J.
Assignment — Equitable Assignment — Exist- .
ing Rights — Whether Consideration Required.! I
— The plaintiff's wife, having lent S. 100/. and 1
taken from her an I 0 U, afterwards asked
S. to pay M. the 1001. when due. S. agreed
and the plaintiff's wife tore up the I 0 T',
and S. gave M. a new I 0 U for 100?. payable
to M. The plaintiff's wife then died, and the i
plaintiff, as the administrator of her estate, I
brought an action against S. and M. to recover ■
the amount : — Held, that there was a good
equitable assignment of the lOOZ. as there was
sufiicient consideration to support it, and there-
fore the action failed, Senible, the rule that
for every equitable assignment there must be
consideration applies only to rights of pro-
I perty which are not yet in existence, and
' though such an assignment of existing rights,
if it is made without consideration, is revoc-
able by the assignor, yet, if he dies without
revoking it, it is binding on his executor.
German v. Yates, 32 T. L. E. 52— Lush, J.
3. CONSTKUCTION AND VALIDITY.
See also Vol. I. 844, 1159.
Validity — Consideration — Antecedent Debt —
Forbearance to Sue.] — Though the mere exis-
tence of an antecedent debt is not of itself
valuable consideration for an assignment by
a debtor to his creditor, yet such a debt,
coupled with a promise, express or implied, by
the assignee of some benefit to the assignor,
such as forbearance to sue or a fresh advance,
connected with the assignment, will constitute
such valuable consideration. In the absence of
evidence to the contrary, the law will presume
from the fact of such an assignment a promise
by the assignee of forbearance to sue for his
debt. Glegg v. Bromley, 81 L. J. K.B. 1081 ;
106 L. T. 825— C. A.
Intention to Defeat and Delay Creditors
— 13 Eliz. c. 5."' — A deed of assignment made
65
ASSIGNMENT— ATTACHMENT.
66
faith by a debtor in favour of his
:reditor is not rendered invalid under the statute
13 Eliz. c. 5, by reason of its being made -with
the express intention of defeating some other
particular creditor or creditors of the assignor.
lb.
A wife who was in debt to her husband for
a large advance executed a deed of assignment
by which she assigned to him the sum of
money to which she might become entitled by
virtue of a pending action of slander in which
she was plaintiff. Her husband then made a
further advance to enable her to prosecute the
notion. The wife subsequently recovered a
verdict in the action for damages. A judg-
ment creditor of the wife thereupon served a
garnishee order nisi attaching the damages
which she had recovered : — Held, that the deed
of assignment was not invalid either for want
of consideration or as savouring of champerty,
or under the statute 13 Eliz. c. 5, and that the
husband, as assignee under the deed, was
entitled to the damages recovered by the wife
as against the execution creditor. 76.
4. Rights and Liabilities of Assignees.
See also Vol. I. 851, 1161.
Contract Debt — Action by Assignee — De-
fence — Claim to Unliquidated Damages
against Assignor.] — The plaintiff was the
assignee of the unpaid balance of the price of
a newspaper sold by one P. to the defendants.
The sale had been induced by misrepresenta-
tions of P. as to the value of the newspaper
by which the defendants had sustained damage
equal to the sum sued for : — Held, that the
defendants were not entitled to avail them-
selves of such damage by way of defence to
the plaintiff's claim. Young v. Kitchin
(47 L. J. Ex. 579; 3 Ex. D. 127) and New-
foundland Government v. Newfoundland
Railwaij (57 L. J. P.C. 35 ; 13 App. Cas. 199)
distinguished. Stoddart v. Union Trust,
Lim., 81 L. J. K.B. 140: [1912] 1 K.B. 181;
105 L. T. 806— C.A.
Set-ofF — Mortgagee of Reversion and Tenant
— Action by Mortgagee for Rent — Counter-
claim by Lessee for Damages against Lessor
— Damages for Breach of Covenant in Build-
ing Agreement.] — The rule that an assignee
of a chose in action can set off a claim for
damages against the assignor arising out of
the same transaction has no application as
between a lessee and a mortgagee of the rever-
sion. The rule that a purchaser or mortgagee
is bound by the equities of a tenant in pos-
session does not apply to the right of a tenant
to damages for breach of a covenant in a build-
ing agreement. Reeves v. Pope, 83 L. J.
K.B. 771; [1914] 2 K.B. 284; 110 L. T. 503;
58 S. J. 248— C.A.
Assignment by One Party — Right of Other
Party to Set off against Assignee.]— The de-
fendants, who wcn^ tenants of an exhibition
ground, entered into a contract with C. by
which C. undertook to equip part of the ground
and was to receive half of certain takings. C.
was also to pay part of the cost of advertising,
and if the defendants had to pay any part of
C.'s share thereof they were to have a lien on
his share of the receipts for admission, but this
lien was not to operate until payment of a
mortgage by which C. mortgaged to the plain-
tiffs his share in the profits. The defendants
were also to supply C. with electricity, for
which he was to pay, the accounts to be
rendered weekly. On a motion by the plain-
tiffs to restrain the defendants from parting
with moneys received for admission the defen-
dants claimed to set off from the share of
receipts due to the plaintiffs as C.'s mortgagees
money due from C. to the defendants for elec-
tricity : — Held, that, although as a general
principle a claim arising under the same con-
tract might be set off against an assignee of
a party thereto, yet as the defendants recog-
nised the mortgage as part of the venture, and
as the lien was not to operate till after the
discharge of the mortgage, the defendants had
no right of set-off against the plaintiffs until
after its discharge. Pha:nix Assurance Co.
V. EarVs Court, Lim., 30 T. L. R. 50— C.A.
Notice of Assignment of Debt — Yalidity of
Notice — Chose in Action.] — The defendant
owed money to one D. in respect of money lent.
D. in December, 1907, entered into a deed of
arrangement by which he made an absolute
assignment of all his property both real and
personal to trustees for the benefit of his credi-
tors. In April, 1908, the solicitors for the
trustees of the deed of arrangement wrote the
following letter to the defendant : " Ee Your-
self and Walter Derham. The trustees of the
deed of arrangement dated the 5th December,
1907, and executed by Mr. Walter Derham,
have instructed us to apply to you for an
account showing all dealings between yourself
and Mr. W^alter Derham. The reason of this
application is that there appears from Mr.
Derham 's books to be a considerable debt due
from you to him for money advanced " : —
Held, that the letter gave to the defendant
express notice in writing of the deed of
arrangement under which the debt was abso-
lutely assigned to the trustees, within the
meaning of section 25, sub-section 6 of the
Judicature Act, 1873, so as to entitle the
trustees to sue the defendant for the debt due
from him to D. Denneij v. Conklin, 82 L. J.
K.B. 953; [1913] 3 K.B. 177; 109 L. T. 444;
29 T. L. E. 598— Atkin, J.
ASSURANCE.
See INSURANCE.
ATTACHMENT.
I. Attachment of Debt.
1. What can be Attached and what not, 67.
2. Practice, 67.
II. Attachment of Persons, 68.
And see Contempt of Court; Debtors Act.
3
n
67
ATTACHMENT.
68
I. ATTACHMENT OF DEBT.
1. What can be Attached and what not.
See also Vol. I. 873, 1167.
Barrister's Fees — Whether a Debt.] — Fees
received by a solicitor for payment to a
barrister for professional services are not a
debt, and therefore garnishee proceedings can-
not be used to attach them in the hands of the
solicitor. Where a garnishee order nisi has
been obtained by a judgment creditor from a
Registrar of the Probate, Divorce, and Admi-
ralty Division, attaching debts alleged to be
owing to the judgment debtor from the
garnishees, there is a right of appeal to a
Judge not only on the part of the garnishee,
but also on the part of the judgment debtor
and of an assignee to whom the alleged debts
have been assigned by the judgment debtor.
Wells V. Wells, 83 L. J. P. 81; [1914] P.
157 ; 111 L. T. 399 ; 58 S. J. 555 ; 30 T. L. R.
546— C.A.
Yearly Income or Salary Voted to M.P.
out of the Public Funds — Irish Member a
Bankrupt when Elected.*^ — The respondent, a
b;inkrupt on his own petition, was elected
M.P. for an Irish constituency, and received
the 400/. a year voted to be paid to Members
of Parliament by resolution of the House of
Commons. The appellant, as the official
assignee in his bankruptcy, obtained an order
in the King's Bench (Bankruptcy) Ireland,
that the respondent should, out of his Parlia-
mentary salary, pay 200/. a year to the
appellant for the benefit of his creditors : —
Held, that the payment to members was not
in the nature of a dole, and was attachable
for the benefit of creditors. Diffei'ence between
Irish and English bankruptcy law on this
point considered and explained. Hollinshead
V. Hazleton. fiO S. J. 139— H.L. dr.)
National Insurance — Panel Doctor's Fees —
Public Policy.] — Where an insurance com-
mittee under the National Insurance Act, 1911,
has received from the National Insurance Com-
missioners funds for distribution among the
doctors on the panel, there is a debt due and
accruing to each of the doctors who have done
the work, and such debt may be attached by
garnishee proceedings inasmuch as it is not
against public policy that it should be attach-
able. O'Driscoll V. Manchester Insurance
Committee, 84 L. J. K.B. 734; [1915] 1 K.B.
811; [1915] W.C. & I. Rep. 263; 112 L. T.
594; 59 S. J. 235; 31 T. L. R. 103— Rowlatt,
J. Affirmed. 85 L. J. K.B. 83 : [1915] 3 K.B.
499; 113 L. T. 683; 79 J. P. 5-53; 13 L. G. R.
11.56; 59 S. J. 597; 31 T. L. R. 532— C.A.
2. Practice.
See also Vol. I. 889. 1172.
Debenture-holder — Judgment Creditor —
No Appointment of Receiver — Garnishee Order
— Priority.] — The plaintiff, a creditor of the
defendant company, having recovered judg-
ment against them, obtained on April 24, 1909,
a garnishee order nisi against the company's
bankers attaching the sum of 611. On May 14
following, the claimant, who was a debenture-
holder of the defendant company, and who
had given them notice to pay off the deben-
ture, gave notice to the plaintiff, the company,
and the bank, claiming to be entitled to the
sum which the plaintiff had garnished. The
claimant did not, however, obtain the appoint-
ment of a receiver or take any other step to
enforce his security : — Held, that the plaintiff
was entitled to have the garnishee order nisi
made absolute. Evans v. Rival Granite
Quarries Co., 79 L. J. K.B. 970; [1910]
2 K.B. 979; 18 Manson, 64; 54 S. J. 580;
26 T. L. R. 509— C.A.
Garnishee Order — No Cause Shewn by Gar-
nishee Owing to Mistake — Order Absolute —
Jurisdiction to Set Aside Order.] — The plain-
tiff had obtained a garnishee order attaching
a debt alleged to be due to the defendant by
a county council and calling on the county
council to shew cause why it should not be
paid to the plaintiff. This order was served on
the county council. Prior to the date of the
order the debt had been assigned for value by
the defendant to third parties, and notice of
the assignment given to the county council.
Owing to a mistake on the part of the secre-
tary of the county council, no cause was shewn
against the conditional order and it was made
absolute : — Held, that the Court had jurisdic-
tion to set aside the absolute order, and that
in the special circumstances it should be set
aside. O'Brien v. Killeen, [1914] 2 Ir. R. 63
—K.B. D.
Judgment Debt Payable on a Certain Date
— Issue of Garnishee Proceedings before that
Date — Judgment "Unsatisfied."] — A judg-
ment in the ordinary County Court form
adjudging that the plaintiff recover from the
defendant a certain sum, and ordering that
the defendant pay that sum to the Registrar
of the Court on a specified future date, cannot,
before that date has arrived, be properly
described as " still unsatisfied " within the
meaning of Order XXVI. rule 1 of the County
Court Rules, 1903-1909, and therefore the
plaintiff is not, before that date, entitled under
that rule to take garnishee proceedings for the
purpose of obtaining payment to him of a debt
due from another person to the defendant.
White V. Stenning, 80 L. J. K.B. 1124;
[1911] 2 K.B. 418; 104 L. T. 876; 55 S. J.
441 ; 27 T. L. R. 395— C.A.
II. ATTACHMENT OF PERSONS.
See also Vol. I. 892, 1174.
Wilful Disobedience to Restraining Order —
No Limit of Time in Judgment.] — The Court
granted an injunction restraining the defen-
dant in the action from residing in the house
of the plaintiff. No time was limited by the
judgment within which the terms of the in-
junction were to be complied with, nor was
there any memorandum of indorsement on the
copy of the judgment served on the defen-
dant, as provided by the Irish Order XLI.
rule 4 [corresponding to the English Order
XLI. rule 5]. The defendant, in disobedience
to the injunction, continued to reside in the
i
09
ATTACHMENT— AUCTION AND AUCTIONEER.
70
house of the phiintiff : — Held, that Order XLI.
rule 4 [Order XLI. rule 5] did not apply to a
prohibitive order of the kind, and that the
defendant should be attached for his dis-
obedience. Murphy v. Willcocks, [1911]
1 Ir. R. 402— Barton, J.
Grounds of Application — Service.] — Upon
motion for attachment against two directors
of a company, for disobedience to an order
appointing a receiver of certain profits of the
company, the grounds of the application must
be stated in accordance with Order LII.
rule 4 ; it is not sufficient compliance with
the rule merely to serve a copy of the order
of Court with the notice of motion. The order
might be disobeyed in several ways, and the
particular breach alleged must be specified.
BrammaU v. Mutual Industrial Corporation,
84 L. J. Ch. 474 ; 112 L. T. 1071 ; -59 S. J. 382
— Astbury, J.
Limited Company — Rule Nisi — Infliction of
Fine.] — Where a rule nisi has been granted
calling upon a limited company to shew cause
why a writ of attachment should not issue
against it for contempt of Court, the company,
though incapable of being imprisoned, may in
a proper case be punished by the infliction of
a fine. Rex v. Hammond <f Co.; Robinson,
E.r parte, 83 L. J. K.B. 1221; [1914] 2 K.B.
866; 111 L. T. 206; 58 S. J. 563; 30 T. L. R.
491— D.
Committal — Necessity for Service of Copy
of Affidavit virith Notice of Motion.] —
Order LTI. rule 4 does not apply to a motion
to commit. Under the rule, therefore, a copy
of the affidavit on which a motion to commit
is founded need not be served with the notice
of motion. Taylor, Plinston d Co. v. Plinston,
[1911] 2 Ch. 605: 105 L. T. 615; 56 S. J.
33: 28 T. L. R. 11— C.A.
ATTORNEY-GENERAL.
See CROWN.
AUCTION AND
AUCTIONEER.
See also Vol. I. 909, 1179.
Sufficiency of Memorandum.] — The plaintiff
instructed an auctioiuHT to put up for sale
by public auction the grazing of a portion of
her lands for a period of six months. The
auctioneer duly offered the grazing for sale,
and accepted the hid of the defendant, making
at the same time the following entry in his
book : " Miss Crane's meadows-Bernard
Naughten. 131. lO.?." -. — Held, that if the
Statute of Frauds applied to such a contract.
the above note or memorandum was insuf-
ficient to satisfv the statute. Crane v.
Naughten, [1912] 2 Ir. R. 318-K.B. D.
Sale of Land — Auction — Entry by Auc-
tioneer of Name of Purchaser on Margin of
Particulars of Sale.] — An auctioneer at a sale
of land entered on the margin of his copy of
the particulars and conditions of sale, against
the lot, the name of the highest bidder for the
lot and the amount of the bid, but there was
nothing to indicate that he was the purchaser
of the lot. The bidder did not sign the
memorandum of agreement contained in the
particulars or pay any deposit : — Held, that
the entry by the auctioneer was not a suffi-
cient note or memorandum in writing to
satisfy the requirements of section 4 of the
Statute of Frauds. Deicar v. Mintoft,
81 L. J. K.B. 885; [1912] 2 K.B. 373;
106 L. T. 763; 28 T. L. R. 324— Horridge , J.
Sale by Auction — Prior Agreement with
Auctioneer as to Disposal of Proceeds of Sale —
Subsequent Agreement by Seller with Pur-
chaser to Set off Price of Goods Purchased
against Debt — Refusal of Purchaser to Pay
Price to Auctioneer — Action by Auctioneer to
Recover Whole of Purchase Price — Equitable
Defence of Set-off— Right of Purchaser to Sur-
plus only of Total Amount Realised by Sale.]
— The plaintiffs, who were auctioneer's, were
employed by F. to sell certain cattle for him
by auction. Prior to the sale F. had given
orders to certain of his creditors directing the
plaintiffs to pay these creditors out of the
proceeds of the intended sale, and the plain-
tiffs agreed to act upon these orders. Pendincf
the sale F. had also become indebted to the
plaintiffs for money lent and paid and for
services rendered upon the terms that they
should repay themselves out of the proceeds of
the sale. The sale was held upon the con-
dition {inter alia) that the price of any cattle
bought was to be paid to the plaintiffs. Whilst
the sale was proceeding an arrangement was
entered into between F. and the defendant, to
whom F. was indebted to a considerable
extent, that the price of any cattle bought
by the defendant might be set off against F.'s
debt to the defendant, but this arrangement
was not communicated to the plaintiffs either
during, or directly after, the sale. The defen-
dant bought a number of cattle at the sale,
the purchase price of which exceeded the
amount of F.'s debt to him, and being known
to the plaintiffs was allowed to remove the
cattle without having paid for them. Exclud-
ing the amount of the defendant's purchases,
the plaintiffs received sufficient money to
satisfy their lien for commission and charges
in respect of the sale, but not sufficient to
pay F.'s creditors or their own debt; but,
including the amount of the defendant's
purchases, the sale realised sufficient to satisfy
all claims, leaving a small surplus. The
defendant having refused to pay the plaintiffs
the price of the cattle which he had bought,
upon the ground that he was entitled to rely
on the arrangement with F. as to set-off,
the plaintiff i)rought an action to recover the
whole of the price of the cattle bought by the
defendant. Before action the defendant ten-
71
AUCTION AND AUCTIONEEE— BAILMENT.
72
dered and subsequently paid to the plaintiffs
the difference between the amount of F.'s debt
to him and the price of the cattle whicb he
had bought : — Held, that the defendant was
not entitled, under the circumstances, to set
up as an equitable defence to the plaintiffs'
claim the arrangement as to set-off made
between him and F., inasmuch as such
arrangement could not defeat the previous
agreement between F. and the plaintiffs as to
the disposition of the proceeds of the sale, on
the faith of which agreement the plaintiffs
had acted, and that the defendant was only
entitled to be paid by the plaintiffs the sur-
plus remaining after deducting from the total
amount realised by the sale the debts owing
to the other creditors, as well as what was-
owing to the plaintiffs in respect of F.'s debt
to them and their commission and charges for
conducting the sale, this surplus being the
only amount which the plaintiffs would have
been bound to pay over to F. Manley v.
Berkett, 81 L. J. K.B. 1232; [1912] 2 K.B.
329— Bankes. J.
Sale by Auction — Auctioneer Intending to
Sell one Commodity — Purchaser Intending to
Bid for a Different Commodity — Parties to
Sale not ad Idem — Validity of Contract.] —
The plaintiffs employed an auctioneer to sell
a quantity of Eussian hemp and tow, samples
of which were on view at certain show rooms.
The catalogue prepared by the auctioneer
contained the shipping mark " S.L." and the
numbers of the bales in two lots, one being
hemp and the other tow, but the catalogue
did not disclose this difference in the nature
of the commodity. At the show rooms bales
from each lot were on view, and on the floor
in front of the bales was written in chalk
" S.L. 63 to 67 " opposite the samples of
hemp, and "S.L. 68 to 79" opposite the
samples of tow. The defendants' manager
inspected the samples of hemp, but not the
samples of tow. The defendants' buyer bid
for the first lot, which was knocked down to
him. He then bid for the second lot, the tow,
under the belief that it was hemp, and it was
knocked down to him. In an action brought
by the plaintiffs to recover the price of the
tow, the jury found that the auctioneer
intended to sell tow; that the defendants'
buyer intended to bid for hemp ; that the
auctioneer believed that the bid was made
under a mistake, but that the mistake was
merely as to value ; that the form of the
catalogue and the negligence of fhe defendants'
manager in not more closely examining and
identifying the goods contributed to the mis-
take : — Held, that the parties were never ad
idem as to the subject-matter of the alleged
sale ; that there was therefore no valid con-
tract, and that the plaintiffs were not entitled
to recover. Scriven v. HindJey, 83 L. J. K.B.
40; [1913] 3 K.B. 564; 109 L. T. 526—
A. T. Lawrence, J.
Apprentice of Auctioneer.] — See Apprentice.
AUSTRALIA.
See COLONY.
AUTHOR.
See COPYRIGHT.
AUTREFOIS ACQUIT
AND CONVICT.
See CRIMINAL LAW.
AVERAGE.
See SHIPPING.
AWARD.
See ARBITRATION.
AUDITOR.
See COMPANY.
BAILMENT.
.See also Vol. I. 940, 1185.
Wharfinger — Lighterman — Loss of Goods
while in Custody of Bailee — Proof of Negli-
gence on Part of Bailee — Causal Connection
between Negligence and Loss — Burden of
Proof — Terms of Contract of Lighterage —
Exemption from Liability — "Loss of or
damage to goods however caused which can
be covered by insurance."] — The defendant,
who was a wharfinger, contracted to lighter
goods of the plaintiffs from a vessel lying in
the Thames to a wharf. By the terms of the
contract the defendant was not to be respon-
sible "for any loss of or damage to goods
however caused which can be covered by insur-
ance." The defendant's barge with the goods
on board was lying at the wharf, when, in the
absence of the man whose duty it was to look
after the barge, from some unexplained cause
the barge was submerged and part of the goods
was washed away and part damaged. The
plaintiffs having brought an action to recover
damages for negligence, Pickford, J., at the
trial found that there had been negligence on
the part of the defendant's servant, but he
gave judgment for the defendant on the ground
that the plaintiffs had failed to shew that that
BAILMENT.
74
negligence was the cause of the loss : — Held,
by the Court of Appeal, that, the defendant
being bailee of goods, and the goods having
been lost while in the custody of the defendant,
and the plaintiffs having proved negligence on
the part of the defendant which might have
contributed to the loss, the burden was on the
defendant to shew that tiie negligence was not
the cause of the loss. But held (Buckley, L.J.,
dissenting), that the defendant was entitled to
retain the judgment in his favour on the ground
that by the terms of the contract he was
relieved from liability for negligence. Price (d
Co. V. Union Lighterage Co. (73 L. J. K.B.
222; [1904] 1 K.B. 412) distinguished.
Travers <£■ Sons, Lim. v. Cooper, 83 L. J.
K.B. 1787; [1915] 1 K.B. 73; 111 L. T.
1088; 20 Com. Cas. 44; 30 T. L. E. 703—
C.A. Affirming, 12 Asp. M.C. 444— Pick-
ford, J.
Warrants for Cargo — Owners' Request to
Warehousemen to Issue Warrants — Lighter-
age by Owners — Sale — Damage to Cargo —
Liability of Warehousemen to Purchasers —
Indemnity from Owners.] — The plaintiffs
agreed with the defendants to store a cargo
of wheat which belonged to the defendants
and was on board a steamer in dock. The
defendants employed the lightermen, and after
a small portion had been delivered to the
plaintiffs the defendants requested the plain-
tiffs to issue three warrants for the wheat on
the steamer and to make them deliverable to
the defendants or their indorsees, in order
that the defendants might sell the wheat.
The plaintiffs made out the warrants and the
defendants sold the wheat, but when it was
delivered to the purchasers it was found to be
unsound, owing to the leakiness of a barge
and exposure to weather, and consequently
the plaintiffs became liable to the purchasers
for damages for failure to satisfy their war-
rants to deliver sound wheat. In an action
by the plaintiffs against the defendants for
an indemnity : — Held, that as the plaintiffs
had issued the warrants at the request of the
defendants, there was an implied contract by
the defendants to indemnify the plaintiffs for
loss to which the plaintiffs were subjected in
consequence of their having issued the war-
rants, and that the plaintiffs were entitled to
the indemnity claimed. Groves v. Webb,
31 T. L. R. 548— Scrutton, J.
Pony Left in Custody of Vendor — Injury
Caused to Pony — Vendor Unable to Explain
how Injuries Occurred — Liability of Vendor.]
— An agreement was made for the purchase
of a pony by the plaintiff from the defendants,
and it was arranged that the pony should be
left in the custody of the defendants for some
days. While the pony remained in the
custody of the defendants it was injured, and
the plaintiff claimed to recover damages in
respect thereof. The defendants did not shew
how the injuries were caused or establish that
they had taken reasonable care of the pony : —
Held, that the defendants were liable,
inasmuch as they were, as gratuitous bailees,
under an obligation to take such care of the
pony as a reasonably prudent owner would
take of his own property, and they had failed
to shew that they had taken such care of the
pony. Wiehe v. Dennis, 29 T. L. E. 250—
Scrutton, J.
Shares — Right to Delivery to Owner — Posi-
tion of Bailee.] — The plaintiff, a British sub-
ject, instructed his London bankers to transfer
certain shares to the defendants " to the order
of " a German bank, which had arranged to
transfer them to New York. The shares were
accordingly handed over to the defendants " to
the order of " the German bank, but the latter
failed to give directions for their transfer to
New York, and when war broke out between
England and Germany the shares were still
in the defendants' hands. The plaintiff
claimed them back from the defendants and
brought an action for their delivery to him.
The German bank had no lien upon the
shares : — Held, that as the plaintiff had a
right, as against the German bank, to the
delivery of the shares, the defendants were
bound to hand them over to the plaintiff.
W ether mayi v. London and Liverpool Bank
of Commerce, 31 T. L. E. 20— Scrutton, J.
Goods Claimed by Person other than Bailor
— Order of Magistrate to Deliver up Goods —
Duty of Bailee to Give Notice of Claim to
Bailor — Negligence of Bailee.] — A married
woman, who had been deserted by her
husband, deposited some goods and chattels,
which were her own property, with the defen-
dant to warehouse for her for reward. A
short time afterwards the husband claimed the
goods from the defendant, who refused to give
them up without the consent of the wife or a
magistrate's order. A representative of the
defendant accompanied the husband to a police
Court, and, when the husband applied to the
magistrate for a summons, the representative
informed the magistrate that the goods had
been deposited with the defendant by the wife.
The magistrate granted a summons, and at
the hearing four days afterwards made an
order under section 40 of the Metropolitan
Police Courts Act, 1839, for delivery up of
the goods by the defendant to the husband,
who thereupon removed the goods. The
defendant, although he knew the wife's
address, did not inform her of the claim made
by her husband to the goods, or of the
summons, until after the order had been
made. The wife sued the defendant to
recover possession of the goods or their value.
The County Court Judge directed the jury
that the defendant would be responsible to
the plainitff for the loss if he by his negli-
gence allowed the order to be made without
giving any notice to the plaintiff. The jury
found that the magistrate's order was obtained
through the negligence of the defendant, and
the County Court Judge gave judgment for
the plaintiff : — Held, that judgment had been
rightly given for the plaintiff. Ranson v.
Piatt, 80 L. J. K.B. 1138; [1911] 2 K.B.
291 ; 104 L. T. 881— C.A.
Money Wrongfully Appropriated — Ratifica-
tion of Wrongful Act by True Owner —
Liability to Refund.] — A volunteer receiving
money, belonging to another, from a person
who luvs obtained such money by a wrongful
BAILMENT— BAKER.
76
act, made rightful by imputed consent, result-
ing retrospectively from such ratification, can-
not hold the money as against the true owner.
Such volunteer is liable, like the person from
whom he obtained the money, and cannot be
in a better position than he would have been
m had the person, through whom the money
was obtained, been the agent of the true
owner to apply the money to a specific pur-
pose other than that of giving it to such
volunteer. Lyons v. O'Brien, [1911] 2 Ir. R.
539— K.B. D.
Warehousemen — Lien — General Lien.] — A
company imported frozen meat from Australia
to England. The plaintiffs procured a credit
for the company with a bank by putting their
names as drawers on bills of exchange drawn
on the company, which the bank discounted.
With the money thus raised the plaintiffs paid
for frozen meat shipped from Australia to
England under bills of lading which made the
meat deliverable to the order of the company.
These bills of lading were pledged with the
bank as security for the bills of exchange being
met. The meat when landed in this country
was, by arrangement with the bank, stored
by the company with the defendants, whose
landing receipts contained the following con-
dition : " Goods are only received subject to
a general lien for all charges accrued and
accruing against the storer or for any other
moneys due from the owners of the goods.
..." The company having failed to meet
certain of the bills of exchange, the plaintiffs,
as drawers of the bills, had to pay them. The
plaintiffs then received the bills of lading from
the bank and claimed delivery of the meat
from the defendants : — Held, that as the bank
consented to the storage of the meat with the
defendants upon terms which included a
general lien, the defendants were entitled to
enforce as against the plaintiffs, as succeeding
to the rights and obligations of the bank, their
general lien on the meat in their store for the
whole of the charges due to the defendants
from the company. Joicitt v. Union Cold
Storage Co.. 82 L." J. K.B. 890; [1913] 3 K.B.
1; 108 L. T. 724; 18 Com. Cas. 185; 57 S. J.
560; 29 T. L. R. 477— Scrutton, J.
BAKER.
See also Vol. I. 972, 1190.
Sale of Bread Otherwise than by Weight —
Sale of Loaf of Common Shape — Loaf Put in
Bag — Notice on Bag that Loaf Weighed
If lb. — Notice not Brought to Attention of
Purchaser.' — Bv section 4 of the London
Bread Act. 1822." all bread sold within the
limits of the Act must be sold by weight,
and any baker or seller of bread selling or
causing to be sold bread " in any other
manner than by weight " is subject to a
penalty. The appellants' servant, who was in
charge of a baker's cart, was asked for a loaf
of bread, for which the purchaser paid 2|d.
The servant put a loaf of bread into a bag on
which was printed a notice that the appel-
lants sold the loaves as weighing If lb. He
did not weigh the loaf, nor was he asked by
the purchaser to do so. The purchaser was
not told the exact weight of the loaf, nor was
his attention called to the notice on the bag,
and the purchaser, who had not previously
bought bread of the appellants, never read it.
The purchaser, however, expected to receive a
21b. loaf, the current price of which in that
neighbourhood was 2|(/. The loaf which he
received was of a common shape sold by every
baker. The loaf when weighed by the respon-
dent was found to weigh nearly three ounces
short of two pounds. The practice at the
appellants' bakery was for the dough to be
weighed at 21b. 3oz. before baking, and after
baking each loaf was weighed at a weight
well over 1| lb. The loaf that was sold had
been weighed that morning before leaving the
bakery : — Held (Lush, J., dissenting), that,
as the bread was not weighed at the time of
sale nor the notice on the bag brought to the
attention of the purchaser, the bread was not
sold by weight, in accordance with the London
Bread Act, 1822, notwithstanding that the loaf
had been weighed before it left the appellants'
bakery. Held further, that the Justices were
entitled, on the evidence, to hold that an
offence had been committed, as selling by
weight within the Act of 1822 means selling
by the true weight of the bread sold. Lyons
d- Co. V. Houghton, 84 L. J. K.B. 979; [1915]
1 K.B. 489; 112 L. T. 771; 79 J. P. 233;
13 L. G. R. 605 ; 31 T. L. R. 135— D.
Sale of Bread — Delivery by Bicycle — Duty
to Carry Beam and Scales — "Carriage."" —
By the Bread Act, 1836, s. 7, " Every baker
or seller of bread . . . and every journeyman,
servant, or other person employed by such
baker or seller of bread, who shall convey or
carry out bread for sale in and from any cart
or other carriage, shall be provided with and
shall constantly carry in such cart or other
carriage a correct beam and scales with proper
weights ... in order that all bread sold by
every such baker or seller of bread, or by his
or her journeyman, servant, or other person,
may from time to time be weighed in the
presence of the purchaser or purchasers thereof
. . . ; and in case any such baker or seller of
bread, or his or her journeyman, servant, or
other person, shall at any time carry out or
deliver an}' bread without being provided with
such beam and scales with proper weights
. . . then and in every such case every such
baker or seller of bread shall for every such
offence " be liable to a penalty. The appel-
lant, a baker, sent out one of his servants to
deliver bread on a bicycle to which was at-
tached by means of a strap a basket containing
loaves. The appellant's servant sold one of
the loaves to a purchaser, but not having been
provided with scales and weights was unable
to weigh it. Upon an information under the
above enactment, the Justices convicted the
appellant : — Held, that there was evidence on
which the Justices were entitled to find that
the bicycle and basket, as used by the appel-
lant's servant, was a " carriage " within the
meaning of section 7, and that the conviction
BAKER— BANKEK AND BANKING COMPANY.
rs
must therefore be afi&rmed. Pollard v. Turner,
82 L. J. K.B. 30; [1912] 3 K.B. 625;
107 L. T. 792; 77 J. P. 53; 11 L. G. R. 42;
23 Cox C.C. 233; 29 T. L. R. 3J— D.
Obligation to Carry Weights Suited to
Weigh the Bread Purported to be Sold.] —
The respoudcut earned out lor sale iu his cart
loaves each of which was reputed to weigh
2 lb. To enable him to weigh the bread he
was provided with a beam-scale and a 2 lb.
weight only, and if a customer asked for a
loaf to be weighed and it was found to be
under 2 lb. his custom was to cut off and
supply a piece from another loaf sufficient to
make up the weight to 21b. : — Held, that the
respondent had contravened section 7 of the
Bread Act, 1836, in failing to carry with him
proper weights which would shew the exact
weight of the bread he purported to sell.
Turner v. Holder, 80 L. J. K.B. 895; [1911]
2 K.B. 562; 105 L. T. 34 ; 9 L. G. R. 979;
75 J. P. 445; 22 Cox C.C. 484; 27 T. L. R.
472— D.
Sale from Van on Road.] — Section 4 of the
Bread (Ireland! Act, 1838, which requires that
all bread (with certain exceptions) sold in
Ireland shall be sold by weight only, and not
by measure, applies to sales from a van on
the public road as well as to sales in a shop.
A prosecution for an offence under the section
may be brought bv a common informer.
Rigney v. Peters, '[1915] 2 Ir. R. 342—
K.B. D.
BANK OF ENGLAND.
See BANKER.
BANKER AND
BANKING COMPANY.
T. Bank of England, 77.
TI. Other Bankers. 78.
in. Customers' Accounts.
1. Relation to Customer, 78.
2. Pledge and Mortgage of Securities, 82.
3. Appropriation and Set-off, 84.
4. Pass Book, 85.
IV. Cheques. See Bills of Exchange.
V. Bankers' Books as Evidence. See
Evidence.
I. BANK OF ENGLAND.
See also Vol. I. 979. 1193.
Poor Rate — General Rate — Local Acts —
Special Provisions— Whether Still Applicable.]
— Under the local Acts bv virtue of which
the Bank of England acquired its property in
the late parish of St. Christopher-le- Stock, in
the City of London, the Bank is no longer
entitled to a partial exemption from either the
poor rate or the general rate, but is liable to
be charged to these rates in the same way as
an ordinary ratepayer. Bank of England v.
London Corporation, 85 L. J. K.B 47-
112 L. T. 1088; 13 L. G. R. 1369; 31 T. L. r'
197— D.
n. OTHER BANKERS.
See also Vol. I. 989, 1195.
Power of Building Society to Carry on
Banking Business.]— 5ee Building Society.
in. CUSTOMERS' ACCOUNTS.
1. Relation to Customer.
See also Vol. I. 1007, 1195.
Account at Branch of a Bank Abroad —
Demand for Payment at Branch in this Coun-
try—Refusal to Pay — Claim by Customer
against Bank.^— The plaintiffs had a current
account with the Berlin branch of the defen-
dant bank, the head of&ce of which was in
Germany, and which also had a branch in
London. Without having applied to the
Berlin branch of the bank for payment of the
amount standing to their credit, the plaintiffs
demanded payment of the sum in question from
the branch in London, and upon payment being
refused brought an action to recover the sum
due : — Held, that the plaintiffs, having made
no demand for payment from the Berlin
branch, were not entitled to demand payment
of the sum standing to their credit there from
the London branch. Clare d Co. v. Dresdner
Bank, 84 L. J. K.B. 1443; [1915] 2 K.B.
576; 113 L. T. 93; 21 Com. Cas. 62;
31 T. L. R. 278— Rowlatt. J.
Foreign Bank— English Customer— Request
for Remittances — Procurability of Drafts
on London — Obligations of Bank. —The
plaintiffs, an English company, had before the
war an account in Berlin with the defendants,
a German banking company, which had its
head office in Berlin and a branch in London.
The plaintiffs were in the habit of requesting
the defendants to send a named sum to London
by cheque, and the defendants then sent a
cheque in sterling usually on their London
branch, charging brokerage and the cost of
the cheque stamp and debiting the plaintiffs'
account with marks calculated at the exchange
of the day. On July 29. 1914. the plaintiffs
had nearly 5.000/. to their credit, and wrote
to the defendants a letter asking for 4.0(X)/.
by a cheque on London. On July 31 the
defendants telegraphed to the plaintiffs that
they could not send the remittance as no rate
of exchange had been fixed that day. In an
action by the plaintiffs to recover from the
defendants the 4,000/., the evidence was that
it was the invariable course of business for
banks requested to remit money from one
country to another to cover their remittances
by purchasing exchange, drafts, or cheques
79
BANKER AND BANKING COMPANY
80
payable in the foreign country, so as to pro-
vide funds to meet their drafts. After the
outbreak of war on August 4, 1914, the defen-
dants' London branch was not allowed by the
British Government to pay any draft on them
by the head ofi&ce if it were sent : — Held,
that no inference could be drawn from the
course of business that the defendants were
under an absolute obligation to remit on
request by the plaintiffs a cheque in English
sterling currency, if when the request arrived
no exchange was procurable in Berlin and no
drafts on London could be purchased, but that
the defendants were merely under an obliga-
tion to use reasonable care to purchase and
forward remittances to London at the plain-
tiffs' risk and expense, and that the case
should be adjourned to give the defendants an
opportunity of proving that drafts on London
could not be purchased on July 31. 1914.
Leete <f Sons, Lim. v. Disconto Gesellschaft,
32 T. L. E. 1.58— Scrutton, J.
Money Paid under Mistake of Fact —
Liability of Banker to Refund.]— The position
of a banker does not differ from that of any
other recipient of money acting as factor or
agent ; and money paid to a banker under a
mistake of fact can be successfully re-
demanded from the banker by the person who
so paid it. Kerrison v. Glyn, Mills, Currie d
Co. , 81 L. J. K.B. 465 ; 105 L. T. 721 ; 17 Com.
Cas. 41; 56 S. J. 139; 28 T. L. K. 106—
H.L. (E.)
The appellant, who lived in England, was
the English manager of a mine in Mexico.
By a system of revolving credit, he agreed
to pay to the respondents moneys paid to the
New York bankers of the mine. For this pur-
pose he had paid 500/. to the respondents.
The New York bank stopped payment, and
the appellant immediately demanded repay-
ment of the 500Z. The New York bank was
largely indebted to the respondents, who
claimed to retain the 500L : — Held, that the
appellant was entitled to be repaid the 500L
7b.
Decision of the Court of Appeal (15 Com.
Cas. 241) reversed. 7b.
Deposit Receipt — Transfer of Beneficial In-
terest.^— In order to transfer the beneficial
interest in a deposit receipt, a written assign-
ment is unnecessary. It is sufficient if the
deposit receipt is surrendered to the bank,
and a new deposit receipt taken out, with in-
tent to pass the beneficial interest, in the
names of the persons to whom the depositor
intends to pass the beneficial interest.
McEneaney v. Shevlin. [1912] 1 Ir. R. 32—
Ross, J. Affirmed. [1912] 1 Ir. R. 278—
C.A.
S., the owner of a deposit receipt for 9001.,
8\irrendered the same to the bank, and
directed a new deposit receipt to be made out
in the names of himself, and his two nephews,
with the intention that the interest in the
same should at his own death pass to his
nephews. S. subsequently died : — Held, that
there had been an effectual transfer of the
beneficial interest, and that at the death of S.
the same passed to the two nephews. 7b.
Payment to Wrong Person Induced by
Fraud — Liability to make Repayment to
Depositor.] — A, who had placed 100/. on
deposit receipt with a Scottish bank wrote
from abroad to the bank requesting them to
pay 60/ . out of the 100/. to his brother (who
was unknown to the bank) on presentation of
the indorsed receipt. At the same time A
wrote to his brother, inclosing the indorsed
receipt, and also inclosing a letter addressed
to the bank in similar terms to the letter sent
direct to them. The letter sent to the bank
was duly delivered, but the letter to the brother
was stolen in the course of post. Thereafter
a person, pretending to be the brother, pre-
sented the indorsed receipt and letter to the
bank, and after having been required to in-
dorse the receipt himself, which he did in the
brother's name, received payment of the
money. A having brought an action against
the bank for payment of the amount to him-
self, the defenders pleaded that, having paid
the sum to the person having A's authority to
receive it, they were not liable : — Held, that
the bank, being authorised to pay the money
only to A's brother and having in fact paid it
to some one else, were liable to A. Wood V.
Clydesdale Bank, [1914] S. C. 397— Ct. of
Sess.
Deposit in Joint Names of Father and
Daughter — Presumption of Resulting Trust
Rebutted.] — Where money is placed on
deposit by a father in the joint names of him-
self and his daughter, and to be paid out to
the survivor, the relationship of father and
child, in the absence of special circumstances,
rebuts the ordinary presumption of a resulting
trust for the owner, and raises the presumption
that the child was meant to take beneficially
if she survived her father. Warivick, In re:
Warwick v. Chrisp, 56 S. J. 253— Parker, J.
Bankers and Brokers Holding Property of
Foreign Lunatic — Refusal to Transfer Pro-
perty to Provisional Administrator Appointed
by Foreign Court without Order of English
Court — Right to Costs.! — The defendants held
securities and moneys on behalf of a domiciled
Frenchman who had had business relations
with them as bankers and stockbrokers respec-
tively. He became of unsound mind, and P.
was appointed provisional administrator of his
property by the French Court. P. requested
the defendants to transfer the property to him,
offering to prove the orders of the French Court
appointing him administrator in any manner
satisfactory to the defendants ; but they
declined to transfer the property without an
order of an English Court : — Held, that the
case was governed bv Didisheim v. London
and Westmin.'iter Bank (69 L. J. Ch. 443:
[1900] 2 Ch. 1.5). and that in view of that
decision the defendants had shewn an undue
and unreasonable excess of caution in the
attitude which they had assumed, and were
not entitled to costs in proceedings by P. and
the lunatic for an order for the delivery of the
property to P. Pelegrin v. Coutts d Co. ;
Pelegrin v. Messel .f Co.. 84 L. J. Ch. 576;
[1915] 1 Ch. 696; 113 L. T. 140— Sargant, J.
I
81
BANKER AND BANKING COMPANY
82
Money Placed with Bank for Agent's Use —
Determination of Agency — Right of Principal
to Claim Balance.] — Principals placed iiioncy
in a bank to be used by their agent for the
purposes of the business. The bank paid the
money into an account which they opened in
the name of the agent, and on the revocation
of the agency refused to transfer the balance
to the principals : — Held, that the instruc-
tions given by the principals to the bank,
as appearing from the correspondence between
them, were not to open an account in the
name of the agent, but to hold the money
for the principals with leave to the agent to
draw upon it, and that the principals were
entitled to recover the balance from the bank.
Societi Coloniale Anversoise v. London and
Brazilian Bank, 80 L. J. K.B. 1361; [1911]
2 K.B. 1024; 105 L. T. 658; 17 Com. Cas. 1;
28 T. L. R. 44— C. A.
Creditor's Suspicion that Debtor Guilty of
Forgery — Obligation to Inform Surety J — In
security for advances to be made by a bank
to a customer, the customer's father-in-law
in 1899 guaranteed payment of the premiums
on certain policies of insurance assigned to
the bank, and payment of interest on an
account for advances to the customer. In
December, 1906, circumstances came to the
knowledge of the manager of the bank which
afforded ground for the strongest suspicion,
short of actual proof, that the customer had
forged a bill for 3,000Z. That information
was not communicated to the surety, and the
bank continued to deal with the customer
(though without making any further advances
to him) until November, 1907, when his
estates were sequestrated. He was shortly
afterwards convicted on his own confession
of several acts of forgery, but it was never
ascertained whether or not he had forged the
bill for 3,000L The liability of the surety
under the guarantee was no greater in Novem-
ber, 1907, than it had been in December, 1906.
The surety having repudiated liability under
the guarantee, on the ground that the bank
should have communicated their suspicions to
him in December, 1906, — Held, that in the
circumstances, there was no duty on the bank
to communicate their suspicions, and that the
surety was not freed from his liability. Bank
of Scotland v. Morrison., [1911] S. C. 593—
Ct. of Sess.
Guarantee of Bank Overdraft to Agent of
Guarantor — Alleged Misappropriation of
Money by Agent — Suspicions of Bank — Non-
communication to Guarantor — Release of
Guarantor.^ — The defendant guaranteed the
payment of all sums due on any account from
C. to a bank up to 5,000Z. C. was at that
time the agent of the defendant's estate and
the guarantee was given in order to raise
money to be expended for the benefit of the
estate. C, however, without the knowledge
of the defendant, opened another account with
the bank by means of the guarantee, the
nioney so advanced by the bank on the security
of the guarantee being used by C. for other
purpoass than those of the defendant's estates.
The defendant alleged that the bank knew or
ought to have known that C. was misappro-
priating the money, and that as they did not
communicate their suspicions to him he was
discharged from his guarantee : — Held, that
the defendant had not proved that the bank
had suspicions that C. was defrauding him,
and that therefore he was not discharged from
his guarantee. Held, further, that even if
the bank were suspicious that C. was defraud-
ing the defendant they were under no duty
to communicate their suspicions to the defen-
dant. National Provincial Bank of England
V. Glanusk (Baron), 82 L. J. K.B. 1033;
[1913] 3 K.B. 335 ; 109 L. T. 103 ; 29 T. L. R.
593— Horridge, J.
Bank of Scotland v. Morrison ([1911] S. C.
693) followed. Ih.
Letter of Guarantee — Payment by Surety to
Creditor before Bankruptcy of Debtor —
Amount for which Creditor Entitled to Rank
on Bankrupt's Estate.] — A. granted to a bank
a letter of guarantee whereby he guaranteed
due payment of all sums for which M. was
or might become liable to the bank, the
amount, however, for which A. could be called
upon to pay not to exceed 2,500?. and interest.
After the guarantee had been in existence for
over four years. A., wishing to terminate his
liability, paid to the bank the whole sum for
which he was liable at that date — namely, the
principal sum of 2,500Z., together with 3001.
of interest. The bank thereupon delivered up
to A. the letter of guarantee with a receipt
for the payment indorsed on it containing a
reservation of the bank's right to claim on the
estate of M. for the full amount of his indebted-
ness to it. A. had obtained the whole sum
which he paid to the bank, with the exception
of 400L, by realising property belonging to
M. which had been assigned to him in security
for the sums due under his guarantee ; and
on receiving back from the bank the letter of
guarantee he destroyed it. The bank placed
the money received from A. in a special account
in name of its agent, and treated the interest
on it as extinguishing pro tanto the interest
falling due to the bank on the principal debt.
A year and a half afterwards M. became bank-
rupt, and the bank claimed on his estate for
the full amount of his indebtedness to it
without deducting the sums paid by A. : —
Held, that the payment by A. having been
made before the bankruptcy of M., the bank
was only entitled to rank on M.'s estate for
the balance of the principal debt after deduc-
tion of that pavment. Commercial Bank of
Australia v. Wilson f62 L. J. B.C. 61;
[1893] A.C. 181) considered and distinguished.
Mackinnon's Trustee v. Bank of Scotland,
[1915] S. C. 411— Ct. of Sess.
2. Pledge and Mortg.age of Secukities.
See also Vol. I. 1018, 1200.
Pledge of Certificates— Blank Transfer-
Estoppel. ^ — The plaintiff employed a firm of
stockbrokers to buy for him shares in a
Colonial railway, and the brokers did so. The
shares were registered in the name of one H.,
the certificates were in his name, and the
transfers on the back had been signed by
him in blank. On the brokers' suggestion the
83
BANKEE AND BANKING COMPANY.
84
plaintiff left the certificates with them and
subsequently consented to the shares being
put into other names. The brokers deposited
the shares with the defendant bank as
security for loans, and at the broker's request
the shares were put in the names of the bank's
nominees. The defendant bank took the
shares in good faith. In an action by the
plaintiff against the defendant bank to recover
the share certificates : — Held, that the bank
was not put upon enquiry by the mere fact
of the brokers depositing the shares as security
for their own account, that the transfer from
H.'s name was not an intimation to the bank
that the shares did not belong to the brokers
and did not put the bank upon enquiry, that
the principle of Colonial Bank v. Cady
(60 L. J. Ch. 131; 15 App. Cas. 267), that
any one who signs a transfer on a certificate
in blank and hands it to another person knows
that third persons would think that that person
had authority to deal with it, extends to a
person who without having had such a certi-
ficate in his possession leaves it in the hands
of his broker, and that therefore the plaintiff
was estopped from recovering the certificates
from the defendants. Fuller v. Glyn, Mills,
Currie £ Co., 83 L. J. K.B. 764; [1914]
2 K.B. 168; 110 L. T. 318; 19 Com. Cas. 186;
58 S. J. 235 ; 30 T. L. E. 162— Pickford, J.
Bearer Bonds Deposited by Bill Broker as
Security for Loan — Re-delivery of Bonds by
Banker in Exchange for Cheque — Whether
Bonds Impressed with Trust in Favour of
Banker until Cheque Honoured.] — The plain-
tiff bankers lent money on bearer bonds to a
firm of bill brokers. They called in these
loans, and, in accordance with the general
practice in such cases, the bill brokers on the
morning that the loans were repayable went
to the plaintiffs, gave each of them a cheque
for the amount of the call, and received in
exchange the bonds that had been deposited
as security. The cheques having been dis-
honoured, the plaintiffs sued the defendants,
who had received in the course of the same
day the bonds in question from the bill
brokers, the plaintiffs alleging that the bonds
were impressed with a trust in tlieir favour
until the cheques were honoured : — Held, that
it was repugnant to the nature of negotiable
instruments to impress them with a vendor's
lien or an implied trust, and that therefore
the plaintiffs' claim could not be sustained.
Burra v. Ricardo (1 Cab. & E. 478) ques-
tioned. Lloyds Bank v. Swiss Bankverein;
Union of London and Smiths Bank v. Same,
108 L. T. 143; 18 Com. Cas. 79; 57 S. J. 243;
29 T L It 219 C A
Decision of Hamilton, J. (28 T. L. R. 501;
17 Com. Cas. 280), affirmed. 76.
Deposit by Solicitor of his Client's Securi-
ties — Fiduciary Relationship — Notice —
Enquiry." — On Sciiteml)er 29, 1904, the plain-
tiff was a customer of the Union Bank of
London, where she had a current account and
a loan account. On the loan account 1,900/.
was advanced, and there were certain securities
deposited to secure that amount. The plain-
tiff, being anxious to change her account for
family reasons, consulted her solicitor, C,
who had acted for her for many years. As a
result, C. informed the plaintiff that he had
arranged with the defendant bank to grant
the loan on the same terms as she had had
with the Union Bank of London, and asked
her to sign certain documents in connection
with the transaction. The material document
was on the common printed form of the
defendant bank, and was as follows : " At the
request of Messrs. Rose Innes, Son, and Crick
I have transferred or caused to be transferred
. . .'" — then the shares were mentioned and
the names of the manager and sub-manager
of the defendant bank — " or their nominees
as trustees for you to be held as collateral
security for your advance to Rose Innes, Son,
and Crick." With this document C. went to
the defendant bank after the securities were
transferred, obtained an addition to the loan
of 1,900Z., and effected the transfer of the
securities in such a way as to make them
available to secure his general indebtedness to
the defendant bank, which amounted to some
16,000Z. which he had from time to time
obtained upon other securities. In the year
1911 the plaintiff required the return of her
securities from C, which he promised to do,
but they were never in fact returned, as C.
absconded. In these circumstances the plain-
tiff brought this action to have her securities
delivered to her by the defendant bank subject
to her paying the 1,900/. which she admitted
having received. It appeared that the general
nature of the transactions between C. and the
defendant bank were that advances were made
by the defendant bank to C. upon securities
which belonged to third parties who were
clients of C. in the ordinary sense, and that
this was known to the defendant bank, though
in a number of cases it might be that the
clients were clients in respect of a mere finan-
cial business carried on by C. independent of
his solicitor's business. It was contended for
the plaintiff (inter alia) that the defendant
bank had such notice of the fiduciary relation-
ship of C. to the plaintiff as to prevent their
acting on the document : — Held, that there
was here sufiicient notice of the relationship
existing or that probably existed between the
plaintiff and C. to have put the defendant
bank upon enquiry, and that accordingly they
could not claim to be in a better position than
they would have been if they had made
enquiries, and that therefore the plaintiff was
entitled to redeem the securities upon payment
of 1,900/. Jameson v. Union Bank of Scot-
land, 109 L. T. 850— Sargant, J.
3. Appropriation and Set-off.
See also Vol. I. 1024. 1202.
Appropriation of Payments — Rule in Clay-
ton's Case — Mortgage to Secure Current
Account — Subsequent Mortgage with Notice
to the Bank.] — After notice to a bank holding
a security from its customer of a subsequent
mortgage by the customer, the debit of the
customer is stnick at the date of notice ; and
where a current account is merely continued
and no specific appropriation of fresh payments
85
BANKER AND BANKING COMPANY— BANKRUPTCY.
86
is made, such payments are credited to the
earliest items on the debit side of the account,
and continue to be so credited until the first
mortgage is extinguished. Deeley v. Lloyds
Bank {No. 1), 81 L. J. Ch. 697; [1912] A.C.
756 ; 107 L. T. 465 ; 56 S. J. 734 ; 29 T. L. R. 1
— H.L. (E.)
A customer of the respondent bank mort-
gaged his property to the bank to secure an
overdraft limited to 2,500?. He then mort-
gaged the same property to the appellant for
3,500L subject to the bank's mortgage. The
bank on receiving notice of this further mort-
gage did not open a new account, but continued
the old current account. The customer there-
after paid in moneys which at a particular
date, if they had been appropriated in
accordance with the rule in Clayton's Case
(1 Mer. 572), would have extinguished the
bank's mortgage. The customer's property
was sold by the bank for a sum sufficient to
satisfy the bank's debt, but not that of the
appellant : — Held, that the evidence did not
exclude the operation of the rule in Clayton's
Case (1 Mer. 572), which must be applied. lb.
Decision of the Court of Appeal (79 L. J.
Ch. 561; [1910] 1 Ch. 648) reversed. lb.
Right of Set-off.] — In 1905 a company was
indebted to the appellant bank to the extent
of $4,985 on current account. In that year
they opened another current account with the
bank on a written agreement that the bank
would not appropriate any of the funds which
might at any time be lying at the credit of
the new account in reduction of the debt then
due to the bank without the company's know-
ledge and consent. In 1909 the company was
wound up. There was then owing to the bank
$2,991 on the original account. On the second
account the bank held $2,769 belonging to the
company : — Held, that the agreement of 1905
was an ordinary business agreement intended
to be operative as long as the accounts were
alive, but no longer, and that there was
nothing in it to exclude the right of the bank
to set off the one sum against the other.
British Guiana Bank v. British Guiana Ice
Co., 104 L. T. 754; 27 T. L. R. 454— P. C.
4. Pass Book.
See also Vol. I. 1045, 1206.
Cheque — Forgery by Customer's Clerk —
Non-examination of Pass Book by Customer —
Right of Customer to Recover.] — The clerk of
a customer of a bank forged the customer's
signature to three cheques and obtained pay-
ment of same from the bank. The customer
claimed to recover from the bank the amounts
so paid : — Held, that the fact that the
customer did not examine his pass book when
it was periodically returned to him by the
bank did not preclude him from recovering.
Kepitiqalla Rubber Estates v. National Bank
of India (78 L. J. K.B. 964; [1909] 2 K.B.
1010) followed. Walker v. Manchester and
Liverpool District Banking Co., 108 Tj. T. 728;
57 S. J. 478; 29 T. L. R. 492— Channell, J.
BANKRUPTCY.
A. — Act of Bankruptcy to Discharge.
I. Persons Liable to Bankruptcy, 87.
II. Acts of Bankruptcy.
1. .■issi(]n))ieiit for Benefit of Creditors, 89.
2. E.recution Levied, 89.
3. Non ■ compliance with Bankruptcy
Notice, 90.
a. Who may Issue Notice.
b. Conditions of Issue.
i. Final Judgment, 92.
ii. Form and Contents of Notice, 93.
c. Practice, 94.
4. Notice of Suspension of Payment, 94.
III. Petitioning Creditor, 95.
IV. Petitioning Creditor's Debt, 96.
V. Petition, 96.
YI. Receiving Order ant) its Consequences,
97.
VH. Composition and Scheme of Arrange-
ment, 98.
yiii. ad.judication, 98.
IX. Discharge, 99.
B. — Property and Administration.
I. Property Passing to Trustee.
1. Generally, 100.
2. Real and Personal Property, 102.
3. Various Kinds of Property, 103.
4. Property Included in Voidable Settle-
)nents, 104.
5. Property in the Order and Disposition
of the Bankrupt, lOS.
6. Exceptions.
a. Trust Property, 108.
b. Pensions and Allowances, 108.
7. Rights to Property of Trustees in
Successive Bankruptcies, 109.
II. Relation of Trustee's Title, 110.
III. Proof of Debts, 111.
lY. Mutual Credits, Debts and Dealings,
114.
\. Secured Creditors, 115.
YI. Effect of Bankruptcy upon Executions,
115.
VII. Protected Transactions, 116.
VIII. Disclaimer, 118.
C— Official Receiver, 118.
D.— The Trustee, 119.
E.— The Bankrupt, 121.
F. — Jurisdiction and Courts, 123.
G. — Practice and Procedure.
I. Practice.
1. .iffidarits, 124.
2. Amendment, 125.
3. Appeal, 125.
4. Costs, 127.
87
BANKRUPTCY.
5. Service of Petitioyis, Orders, and other
Process, 128.
6. Various Matters, 129.
II. Evidence, 129.
H. — Deeds of Arrangement, 130.
A. ACT OF BANKRUPTCY
TO DISCHARGE.
I. PEESONS LIABLE TO BANKRUPTCY.
See also Vol. II. 21, 1945.
Married Woman — Unsatisfied Judgment —
Action on Judgment.] — Where a judgment
has been given before 1913 against a married
woman, execution being limited to her
separate property, and no stay has been
granted, and the judgment remains unsatis-
fied, it is open to the plaintiff to bring a fresh
action on the judgment and to recover judg-
ment thereon for the purpose of founding
bankruptcy proceedings against the married
woman under section 12 of the Bankruptcy
and Deeds of Arrangement Act, 1913. Semble,
however, that section 12 of that Act is retro-
spective so as to make such fresh action
unnecessary. Shaw v. .Ulen, 30 T. L. R. 631
— Lush, J.
Married Woman Carrying on "a trade or
business" — Negligence of Servant in Course
of Trade — Liability in Tort — Business Debt.]
— A married woman continues to carry on a
business so long as any business debt remains
unpaid, and a judgment against her in tort
for a liability incurred in carrying on the
business is a business debt, and is therefore
available for bankruptcy proceedings against
her under the Bankruptcy and Deeds of
Arrangement Act, 1913, s. 12. Allen, In re;
Shaw, ex parte, 84 L. J. K.B. 271; [1915]
1 K.B. 285; 112 L. T. 194; [1915] H. B. R.
39; 69 S. J. 130— C.A.
Debts Incurred before April 1, 1915 —
Judgment after April 1, 1914— Validity.] —
A married woman carrying on a trade or
business is amenable to bankruptcy pro-
ceedings under section 12 of the Bankruptcy
and Deeds of Arrangement Act, 1913, in
respect of a judgment obtained against her
after the date on which the Act came into
operation on a debt incurred by her before that
date. For the purposes of the Bankruptcy and
Deeds of Arrangement Act, 1913, a married
woman does not cease to carry on a trade or
business until all the debts incurred by her
in carrying on the trade or business have been
paid. Daqnall, In re: Sloan (f Morley, ex
parte (65 L. J. Q.B. 666; [1896] 2 Q.B. 407),
and WoTsley, In re; Lambert, ex parte
(70 L. J. K.B. 93 ; [1901] 1 K.B. 309), applied.
Clark, In re ; Pope, ex parte, 84 L. J. K.B. 89 ;
[1914] 3 K.B. 1095; 112 L. T. 873; [1915]
H. B. R. 1; 59 S. J. 44— C.A.
On May 7, 1914, judgment was obtained
against the debtor, who was a married woman,
in respect of debts incurred by her in 1911
and 1912, and on June 4, 1914, a bankruptcy
notice was issued in respect of the judgment
debt. It appeared that prior to 1906 the debtor
had carried on an hotel, and that she then
sold it to a limited company of which she
became the managing director. Soon after-
wards she started a new hotel, and transferred
it to the same company in 1910. In the same
year she had to do with the formation of a
second hotel company of which she was the
managing director and the holder of the bulk
of the preference shares. In June, 1912, a
third hotel company was formed to acquire
property, in which the debtor had acquired
interests during the preceding two years, and
erect an hotel thereon. It was in connection
with this venture that the debtor had ob-
tained the above-mentioned loans. It appeared
from a prospectus issued by this company
that the debtor had sold her interests in the
property to the company for 289,000L, pay-
able in cash and shares, and that she had
guaranteed the interest on an issue of prefer-
ence shares during the period of construction
of the proposed hotel, and had become the
managing director of the company. This ven-
ture proved a failure, and the hotel had not
been built. In connection with all these
transactions the debtor had used a name which
she had taken in 1906, and had continued to
use for this purpose after her second marriage
in 1910 : — Held, that the debtor was liable to
bankruptcy proceedings under section 12 of
the Bankruptcy and Deeds of Arrangement
Act, 1913, as being a. married woman carrying
on the "business" of a company promoter;
and that the bankruptcy notice was a valid
notice. lb.
Receiving Order — Judgment after Aprill,
1914 — Goods Supplied Previously.] — By
section 12, sub-section 2 of the Bankruptcy
and Deeds of Arrangement Act, 1913, which
came into operation on April 1, 1914, " Where
a married woman carries on a trade or
business and a final judgment or order has
been obtained against her. whether or not
expressed to be payable out of her separate
property, for any amount, that judgment or
order shall be available for bankruptcy pro-
ceedings against her by a bankruptcy notice
as though she were personally bound to pay
the judgment debt or sum ordered to be
paid " : — Held, that where a married woman
is carrying on business after April 1, 1914, a
receiving order can be made against her upon
a judgment obtained against her after that
date for goods supplied to the business,
although the goods were supplied before that
date and the writ was issued before that date.
Hollis, In re; Lawrence, ex parte, 112 L. T.
135 ; 58 S. J. 784 ; 30 T. L. R. 680— D.
Business Commenced before Marriage.] — A
woman continued to carry on the business of a
hay and corn merchant carried on by her
father, who died in 1912. as his administratrix.
On July 1. 1914. she sold the business and the
greater part of the assets, but not including
certain hay and outstanding trade debts. She
married on July 25, 1914, and after the mar-
riage the hay was sold and the outstanding
debts were got in. A petition was presented
by a creditor on October 27, 1914, whose debt
• I
89
BANKEUPTCY.
90
had been incurred before the marriage, on an
act of bankruptcy which took place after the
marriage : — Held, that, as the debtor had con-
tinued to trade after the marriage, under
section 12, sub-section 1 of the Bankruptcy
and Deeds of Arrangement Act, 1913, she could
be made bankrupt on the debt contracted before
the marriage. Reynolds, In re; White, Lim.,
ex parte, 84 L. J. K.B. 1346; [1915] 2 K.B.
186; 112 L. T. 1049; [1915] H. B. E. 174;
59 S. J. 270; 31 T. L. K. 216— C.A.
Decision of Divisional Court (31 T. L. E.
150) reversed. lb.
II. ACTS OF BANKEUPTCY.
1. Assignment for Benefit of Creditors.
See also Vol. II. 27, 1947.
What Conduct Precludes Creditor from
Relying on Deed as Available.] — On July 22,
1913, B. executed a deed of assignment for the
benefit of his creditors, and on August 12 called
a meeting of his creditors to approve the deed.
At this meeting J. H., the secretary of J. S.,
Limited, one of the creditors, and N., solicitor
for J. S., Limited, were present, but they did
not vote upon the resolutions, and expressed
themselves dissatisfied with the deed. Subse-
quently J. S., Limited, on being requested to
assent to the deed, notified the trustee on
September 2 that they declined to assent ;
and on October 18 they presented a petition
against B., alleging as the act of bankruptcy
the deed of July 22 -.—Held, that there had
been no assent, express or implied, on the part
of the petitioning creditors, such as to disentitle
them to set up the deed as an available act
of bankruptcy, upon which a petition could
be founded. Held, further, by Eowlatt, J.,
that, in view of the decision in Day, In re;
Hammond, ex parte (86 L. T. 238), the case of
Carr, In re; Jacobs, ex parte (85 L. T. 552),
could no longer be relied upon as an authority
for the proposition that an unexplained delay
in presenting a petition might amount to
acquiescence in a deed. Beesley. In re,
109 L. T. 910— D.
2. Execution Levied.
See also Vol. II. 83, 1951.
Seizure of Goods — Interpleader Summons —
Final Order on Summons — No Interpleader
Issue Ordered — Goods in Hands of Sheriff for
Twenty-one Days — Allowance for Interpleader
Summons — " Time elapsing."] — The words
" any interpleader issue ordered thereon is
finally disposed of " in the proviso to section 1
of the Bankruptcy Act, 1890, are technical,
and must be construed strictly. Where,
accordingly, goods were seized under a writ of
fieri facias, and were in the hands of the sheriff,
and, an interpleader summons having been
taken out by him, the Master made an order by
consent by which the interpleader proceedings
were finally disposed of, but by which no inter-
pleader issue was ordered, — Held, that this
order was not equivalent to an order by which
any interpleader issue ordered thereon is
finally disposed of " within the meaning of the
proviso; and that accordingly the interval
between the issue of the interpleader summons
and the making of the order in question could
not be deducted in calculating the period of
twenty-one days during which the goods should
be in the hands of the sheriff that was neces-
sary in order to constitute an act of bankruptcy
by virtue of section 1 on the part of the bank-
rupt. Chetwynd's Trustee v. Boltons Library,
82 L. J. K.B. 217 ; [1913] 1 K.B. 83; 107 L. T.
673; 20 Mansou, 1 ; 57 S. J. 96— C.A.
Decision of Phillimore, J. (81 L. J. K.B.
821; [1912] 2 K.B. 520), reversed. lb.
Garnishee Order Absolute Obtained by
Judgment Creditor.] — The obtaining by a
judgment creditor of a garnishee order absolute
on a debt due to the debtor does not preclude .
the creditor from issuing execution, or from
issuing a bankruptcy notice against the
debtor ; nor ought the amount of the judgment
debt to be reduced by the value of the garnishee
order, since a judgment creditor's right to issue
a bankruptcy notice is not affected by his
holding a security for the debt. Renison, In
re; Greaves, ex parte, 82 L. J. K.B. 710;
[1913] 2 K.B. 300 ; 108 L. T. 811 ; 20 Mansou,
115 ; 57 S. J. 445— D.
Sedgwick, In re; Sedgwick, ex parte
(5 Morrell. 262), and Bond, In re; Capital and
Counties Bank, Lim., ex parte (81 L. J. K.B.
112; [1911] 2 K.B. 988), applied. Raijmond,
In re; Raymond, ex parte (9 Morrell, 108n. ;
66 L. T. 400), distinguished. 7b.
3. Non-Compliance with Bankruptcy
Notice.
a. Who may Issue Notice.
See also Vol. II. 84, 1952.
Bankruptcy Notice by Creditor — Creditor
Himself Guilty of Act of Bankruptcy —
Validity of Notice.] — A creditor who had him-
self committed an act of bankruptcy served a
bankruptcy notice upon his debtor : — Held
(Buckley, L.J., dissenting), that the bank-
ruptcy notice was invalid, inasmuch as such
a notice must be given by a person competent
to receive and give a good discharge for the
debt in respect of which the notice is given,
and inasmuch as the creditor, in view of his
own act of bankruptcy, was not such a person.
Debtor {No. 211 of 1912), In re; Debtor,
ex parte, 81 L. J. K.B. 1169; [1912] 2 K.B.
533; 107 L. T. 3 ; 19 Manson, 309; 56 S. J.
689— C.A.
Judgment Creditor — Stay of Execution —
Receiver by Way of Equitable Execution.] —
Where a judgment creditor has obtained the
appointment of a receiver by way of equitable
execution, but the debtor is not thereby
prevented from paying the judgment debt, the
existence of the receiver is not a " stay " of
execution within the meaning of section 4,
sub-section 1 (fy) of the Bankruptcy Act, 1883,
and the judgment creditor may serve a bank-
ruptcy notice upon the debtor in respect of
his judgment. Bond, hi re; Capital and
Counties Bank, ex parte, 81 L. J. K.B. 112;
[1911] 2 K.B. 988; 19 Manson, 22— D.
91
BANKRUPTCY,
92
A creditor who has obtained a receivership
order by way of equitable execution against
the debtor is not thereby precluded from
issuing a bankruptcy notice during the
receivership, as he would be in the case of
a pending execution by fi. fa. Lupton„ In re;
Lupton, ex parte, 55 S. J. 717 — D.
Balance of Debt Unpaid — Fresh Agree-
ment— Dismissal of Petition — Appeal.] — A
company obtained a judgment against V. for
440L and 8/. costs on November 25, 1910,
and on May 25, 1911, the debtor paid 200Z.
under the judgment. The balance remaining
unpaid, the company instituted bankruptcy
proceedings, and thereupon the debtor's soli-
citor wrote to the company on December 9,
1911, inclosing a cheque for 136Z. : "It is
understood that this payment includes your
agreed costs of 20 guineas, and that the
balance of debt, amounting to 149L 5s. 6d., is
to be paid with interest at 10 per cent., on
the 1st April next. It is further understood
that the petition against Mr. V. shall be
dismissed." The balance of debt was not
paid on April 1, and further time was given
by the company. On May 18, 1912, a further
sum of 46L 175. was paid on account of the
balance of debt and interest, and in considera-
tion thereof the time for payment was further
extended to August 6. The balance remained
unpaid, and on January 1, 1913, the company
issued a fresh bankruptcy notice for 105Z.
9s. 8d., being the amount of the balance of
debt together with interest at 4 per cent. The
petition was heard on March 18, 1913, and
was dismissed by the Registrar on the ground
that the agreement of December 9, 1911, and
the payment of May 18, 1912. constituted a
fresh agreement, and that a bankruptcy notice
could not be issued in respect of the unpaid
balance of the old judgment debt. The peti-
tioning creditors appealed : — Held, that the
creditors by the agreement of December 9,
1911, had not waived their judgment, but had
merely postponed their recourse to it, and
that, on the debtor's default in payment of
the balance due on April 1, 1912, the creditors'
rights revived and they were entitled to issue
a bankruptcy notice for the balance of the
judgment debt, and that therefore the appeal
succeeded and a receiving order ought to be
made against the debtor. Vogel, In re; Anglo-
Eastern Contract Co., ex parte, 109 L. T. 325
— D.
Person Entitled to Enforce Final Judgment
— Charge of Interest — Leave to Issue Execu-
tion without Formal Addition of Party —
Garnishee Order. ^ — The trustee in bankruptcy
of the judgment creditor who has obtained
leave under Order XLII. rule 23, to issue
execution against the judgment debtor, though
without having been added as a party to the
action under Order X\'TI. rule 4, is a person
entitled to enforce a final judgment within
section 1 of the Bankruptcy Act, 1890. Dicta
of Wright, J., in Clements, hi re; Davis,
ex parte (70 L. J. K.B. 58 ; sub nom. Clements,
In re; Clements, ex parte, [1901] 1 K.B. 260),
disapproved. Dicta of Court of Appeal in
Woodall, Ex parte; Woodall. in re (53 L. J
Ch. 966; 13 Q.B. D. 479), followed. Bagley,
In re, 80 L. J. K.B. 168; [1911] 1 K.B. 317;
103 L. T. 470 ; 18 Manson, 1 ; 55 S. J. 48— C.A.
The trustee in bankruptcy of the judgment
creditor who has obtained leave as aforesaid
can serve a valid bankruptcy notice on the
judgment debtor in respect of the judgment
debt without taking any steps to discharge a
previous garnishee order absolute, the effect
of the receiving order being by section 45 of
the Bankruptcy Act, 1883, to put an end to
a garnishee order not completed by actual
receipt of the debt. 7b.
County Court — Judgment Debt for more
than 50/. — Payment of Instalment — Reduction
below 50/. — Bankruptcy Notice for Whole
Original Debt. — A creditor recovered judg-
ment in the County Court for more than 50L,
and the debtor thereupon paid such a sum to
the Registrar as reduced the debt below 50/.
Subsequently the creditor served a bankruptcy
notice on the debtor for the whole original
sum : — Held, that, whether the Registrar was
or was not justified in accepting the instal-
ment, yet, inasmuch as the instalment had
de facto been paid to the Registrar, and
inasmuch as the Court of Appeal, sitting as a
Court of Appeal in Bankruptcy, had no juris-
diction to review the validity of the payment,
it was not competent to serve a bankruptcy
notice for the whole original sum, but only for
that unpaid balance in respect of which alone
the creditor was now in a position to issue
execution. Miller, In re ; Furniture and Fine
Arts Depositories, ex parte, 81 L. J. K.B.
1180; [1912] 3 K.B. 1; 107 L. T. 417;
19 Manson, 354; 56 S. J. 634— C.A.
Semble (per Cozens-Hardy, M.R., and
Kennedy, L.J.), that the Registrar was justi-
fied, under County Court procedure, in accept-
ing the instalment. lb.
b. Conditions of Issue.
i. Final Judgment.
See also Vol. II. 87, 1952.
Bankruptcy Notice — Final Judgment — Stay
of Execution — Action for Specific Performance
— "Final judgment or order."] — An order by
consent in the Chancery Division, in an action
for specific performance, directed that a certain
sum of money should be paid on a date to
be ascertained in the future subject to the
performance of certain conditions precedent.
The conditions were performed, and the date
was ascertained, but the money was not paid
at the time in question. The judgment creditor
thereupon served a bankruptcy notice on the
judgment debtor in respect of the debt. The
notice spoke of the consent order as a " final
judgment or order," and added, " whereon
execution has not been stayed " : — Held, that
the order by consent was a final judgment
within the meaning of section 4, sub-
section 1 (g) of the Bankruptcy Act, 1883 ; that
the phrase " whereon execution has not been
stayed " was not, under the circumstances,
inaccurate ; and that the description of the
consent order as a " final judgment or order,"
whether or not technicalfy correct, was not
of a nature to invalidate the notice. Held,
accordingly, that the bankruptcy notice was
I
I
93
BANKEUPTCY.
94
good. Debtor (No. 837 of 1912), In re, 81 L. J.
K.B. 1225; [1912] 3 K.B. 242; 107 L. T. 506;
19 Manson, 317; 56 S. J. 651— C. A.
ii. Form and Contents of Notice.
See also Vol. II. 93, 1955.
Judgment Debt — Claim of Interest without
any Deduction of Income Tax — Validity.] — A
bankruptcy notice requiring payment of a judg-
ment debt with interest thereon under the
Judgments Act, 1838, s. 17, at 4 per cent.,
is not invalid because it claims payment of
the interest in full without deducting the
income tax payable thereon under the Income
Tax Acts of 1842 and 1853. Cooper, In re ;
Debtor, ex parte, 80 L. J. K.B. 990; [1911]
2 K.B. 550; 105 L. T. 273; 18 Manson, 211;
65 S. J. 554— C. A.
Part Payment of Judgment Debt — Bank-
ruptcy Notice for Balance — Sum Claimed
Correct — Notice not Invalidated by Marginal
Note.] — Where j^art of a judgment debt has
been extinguished and a bankruptcy notice has
been issued for the balance, the notice is not
invalidated by reason of a variation from the
terms of the judgment to be found in a
marginal note thereto, provided that the sum
claimed in the notice is the correct amount
owing. Debtor (No. 2 of 1912), In re; Debtor,
ex parte, 106 L. T. 895— D.
Final Judgment Obtained by Firm against
Debtor — Direction to Pay Judgment Creditors
or their Solicitors.] — A firm of stockjobbers
recovered a final judgment against a stock-
broker. Thereupon their solicitors obtained
the issue of a bankruptcy notice which
directed the judgment debtor to pay the judg-
ment debt to the judgment creditors "or to
their solicitors," and contained a statement by
the solicitors suing out the notice that they
had full authority to receive payment of the
debt and to act for such creditors in respect
of all matters specified in the notice : — Held,
that the bankruptcy notice was not a good
foundation for a receiving order, inasmuch as
it did not require the debtor to pay the judg-
ment debt " in accordance with the terms of
the judgment," as provided by section 4. sub-
section 1 (gr) of the Bankruptcy Act, 1883.
Debtor (No. 305 of 1911), In re: Debtor, ex
parte, SOL. J. K.B. 1264; [1911] 2 K.B. 718;
105 L. T. 125; 18 Manson, 318; 55 S. J. 553
-C.A.
Address of Judgment Creditor — Absence from
House.] — A judgment creditor, having two
houses in different parts of England, inserted
in a bankruptcy notice the address of the
house from which he was absent diiring the
currency of tlie bankruptcy notice. His butler
was at the address given in the notice, and
was authorised to receive payments on behalf
of his master, or could have sent for him at
any time during the currency of the notice : —
Held, that the address given was sufficient,
and that the bankruptcv notice was good.
Persse, In re, 55 R. J. 314— C.A.
Foreign Creditor — Notice to Pay Outside
the Realm — Right of Authorised Agent to
Receive Payment — Invalid Notice.] — A bank-
ruptcy notice requiring a debtor to pay a
judgment debt at a place outside the realm
is invalid ; but a bankruptcy notice may
properly require the debtor to make payment
to the creditor at an address within the juris-
diction where not the creditor, but his properly
authorised agent, is in attendance to receive
payment. Debtor (No. 305 of 1911), In re;
Debtor, ex parte (80 L. J. K.B. 1264 ; [1911]
2 K.B. 718), explained. Persse, In re (55 S. J.
314), followed. Debtor (No. 1,838 of 1911),
In re, 81 L. J. K.B. 107; [1912] 1 K.B. 53;
105 L. T. 610; 19 Manson, 12; 56 S. J. 36;
28 T. L. K. 9— C.A.
c. Practice.
See also Vol. II. 97, 1959.
Counterclaim for Amount Exceeding Debt —
Not Available in Action — Assignment to
Debtor after Action of then Existing Debt.] —
The counterclaim equalling or exceeding the
amount of the judgment debt which, under
section 4, sub-section 1 (g) of the Bankruptcy
Act, 1883, a debtor can set up in answer to a
bankruptcy notice is one which, as matters
stood at the time of the action in which judg-
ment was obtained, he could not in law have
set up in that action, even though he might
have taken steps which would have rendered it
available to him in the action. Where, there-
fore, after the service on him of a bankruptcy
notice, a judgment debtor obtained the assign-
ment to himself of a debt due from the
judgment creditors to his firm, which debt was
in existence at the time of the action : — Held,
that he was entitled to set up the debt in
answer to the bankruptcy notice, although it
was not shewn that, as a matter of fact, he
could not have obtained an assignment of it in
time to set it up by way of counterclaim in
the action. Debtor (No. 37 of 1914), In re,
84 L. J. K.B. 133; [1914] 3 K.B. 726;
111 L. T. 412; [1915] H. B. R. 16; 58 S. J.
784-D.
4. Notice of Suspension of Payment.
See also Vol. II. 107, 1959.
Circular to Trade Creditors — Proposals for
Carrying on the Debtor's Business — State-
ment at Creditors' Meeting.] — A circular
issued by a trader to his creditors, in which
they are invited to attend a meeting to be
held for the purpose of discussing the position
of affairs and of deciding upon methods for
continuing the business, may be a sufficient
notice of suspension of payment of debts to be
a good act of bankruptcy within section 4, sub-
section 1 (/;). And a proposal, laid before the
creditors' meeting, by which creditors are to
be paid in full by instalments, partly in cash
and partly in shares, may also be a good act
of bankruptcv within the meaning of the sec-
tion. Midgl'ey, In re, 108 L. T. 45; 67 S. J.
247— D.
Non-trader — Doctor.] — The debtor, a doctor,
sent through his solicitor a circular letter to
all his creditors in the following form :
" Dr. C. . . . physician and surgeon, has
95
BANKEUPTCY.
96
consulted me with reference to his financial
position, and I shall be glad if you will attend
a meeting of his creditors to be held here on
Priday next. . . ."" The meeting was held and
a proposal was made thereat to, but was not
accepted by, the creditors. The debtor was
then asked if he would file his own petition
in bankruptcy, but he refused to do so, and
stated that he should go on. A creditor then
presented a bankruptcy petition against the
debtor, alleging that the above circular was
equivalent to a notice that the debtor had
suspended, or was about to suspend, payment
of his debts, within the meaning of section 4,
sub-section 1 (/;) of the Bankruptcy Act,
1883 -.—Held, that the circular did not con-
stitute an act of bankruptcy within the sub-
section. Debtor, hi re, 106 L. T. 812 : 56 S. J.
482 ; 28 T. L. K. 386— D.
Debt Payable at a Certain Future Time —
Moratorium.] — A debtor gave notice that he
had suspended payment on September 9, 1914,
and a petition was presented against him on
September 12. At that time the Moratorium
Proclamation of September 1. 1914, was in
fo]^ce extending the time for payment of debts
to October 4 -.—Held, that a receiving order
ought to be made upon the petition, for the
debt was payable at a certain future time —
namely, October 4 — and that there was nothing
in the Moratorium Proclamations to prevent
a debtor from committing an act of bankruptcy
by giving notice of suspension of payment.
Sahler, In re. 84 L. J. K.B. 1275; 112 L. T.
133; [1915] H. B. R. 119; 59 S. J. 106— D.
III. PETITIONING CEEDITOE.
See also Vol. II. 114, 1960.
Petition Presented by Secretary of a Com-
pany.]— Semble, in the case of a company
presenting a petition by an officer authorised
in that behalf it is unnecessary that the resolu-
tion of the board to delegate its authority
should be under seal, provided that the seal of
the company is affixed to the authority.
Midglerj, In re, 108 L. T. 45 ; 57 S. J. 247— D.
Authority of Company to Present.] — An
authority given by a company, under sec-
tion 148 of the Bankruptcy Act, 1883, to its
secretary to present a bankruptcy petition
against a debtor only extends to a petition
on an act of bankruptcy available at the date
of the authority, and does not include an option
to present a petition on an act of bankruptcy
committed subsequently to the date of the
authority. Debtor (No. 30 of 1914), In re;
Petitioning Creditors, ex parte, 84 L. J. K.B.
254; [1915] 1 K.B. 287; 112 L. T. 310; [1915]
H. B. R. 18; 59 S. J. 130— D.
Proposed Deed of Assignment — Assent of
Creditor — Revocation of Assent before Execu-
tion of Deed.l — A creditor may revoke his
assent to a proposed deed of assignment for the
benefit of creditors at any time before the deed
is actually executed. His having so assented
will not preclude him from founding a petition
on the acts of bankruptcy which led to the
proposed deed of assignment. Jones, In re;
Newnes and Associated Newspapers, ex parte,
81 L. J. K.B. 1178; [1912] 3 K.B. 234; 107
L. T. 236; 19 Manson, 349; 56 S. J. 751— D.
Joint Petitioning Creditors — Estoppel.] —
Where one of joint petitioning creditors is
estopped from relying on the alleged acts of
bankruptcy, the petition of the other creditor
or creditors may succeed, provided that the
debt of those not estopped is sufficient for the
grounding of the petition. Hawley, In re;
Rid g way, ex parte (4 Manson, 41), and
Woodroff, In re; Woodrojf, ex parte (4 Man-
son, 46), distinguished. lb.
IV. PETITIONING CEEDITORS' DEBT.
See also Vol. II. 129, 1962.
Petition on Judgment Debt Founded on
Award — Going Behind Judgment.] — Where a
petition is based on a judgment debt, founded
on an award, and there is no allegation of
fraud or improper conduct made against the
arbitrator, the Court of Bankruptcy will not go
behind the judgment and re-open the award for
the purpose of re-trying what has already been
adjudicated upon by the arbitrator. Newey,
In re; Whiteman, ex parte, 107 L. T. 832;
57 S. J. 174— D.
Judgment not by Consent or Default — Dis-
cretion of Registrar.] — There is no power in
the Bankruptcy Court on the hearing of a peti-
tion to go behind a judgment obtained in open
Court against a person represented there — no
fraud being suggested. The Registrar should
only go behind a judgment obtained by default
or compromise, or where fraud or collusion is
alleged. The Registrar having refused in the
exercise of his discretion to re-open a judg-
ment obtained after trial in the presence of
the defendant, the Court declined to interfere.
Flatau, In re; Scotch Whiskey Distillers,
ex parte (22 Q.B. D. 83), applied. Howell,
In re, 84 L. J. K.B. 1399; 113 L. T. 704;
[1915] H. B. R. 173-D.
Y. PETITION.
See also Vol. II. 148, 1965.
Staying Proceedings — Jurisdiction .] — The
Court of Bankruptcy has exclusive jurisdiction
under section 1, sub-section 3 of the Courts
(Emergency Powers) Act, 1914, as to staying
proceedings on a bankruptcy petition which
is not within the purview of section 1, sub-
section 1 (a) of the Act. Silber, In re {No. 1),
84 L. J. K.B. 971; [1915] 2 K.B. 317; [1915]
H. B. R. 95 ; 113 L. T. 763 ; 59 S. J. 271— C. A.
Bankruptcy — Petition — Receiving Order —
Debtor Subject of State at War viith His
Majesty — Discretion to Stay Proceedings —
"Remedy."] — The Court has no power to
exercise, in favour of a debtor who is a " sub-
ject of a Sovereign or State at war with His
Majesty " within sub-section 7 of section 1 of
the Courts (Emergency Powers) Act, 1914, the
discretion to stay proceedings under a bank-
ruptcy petition conferred by sub-section 3 of
' section 1. A bankruptcy petition is a
97
BANKRUPTCY.
98
" remedy " within sub-section 7. Radeke, In
re; Jacobs, ex parte, 84 L. J. K.B. 2111;
[1915] H. B. R. 185; 31 T. L. R. 584— D.
VI. RECEIVING ORDER AND ITS
CONSEQUENCES.
See also Vol. 11. 17(), 19(i7.
Receivership Order in Lunacy against
Debtor.] — An order was made by a master in
Ijunacy appointing a person receiver of the
dividends and income of the debtor's property :
— Held, that this did not prevent the Court
from making a receiving order in bankruptcy
against the debtor. Belton, In re, 108 L. T.
344; 57 S. J. 343; 29 T. L. R. 313— D.
"Sufficient cause" for Making no Order —
Deed of Assignment — Subsequent Act of Bank-
ruptcy — Conduct of Petitioning Creditor.] —
The petitioning creditors, at a time when the
debtor was to his own knowledge, insolvent,
had delivered goods to him on credit, and at a
preliminary meeting of creditors they refused
to assent to a deed of assignment by the
debtor for the benefit of his creditors unless
these goods or their value were returned to
them. The other creditors would not agree to
ihis, and a resolution was passed by a
majority that the debtor should be requested
to execute a deed of assignment and for the
appointment of a committee of inspection.
The petitioning creditors did not vote on this
resolution, but they did suggest the name of a
person to act on the committee. They refused,
however, to execute the deed, and repeated
their request to the debtor for the return of
the goods or their value, stating that other-
wise they would issue a writ. This they did,
and recovered judgment against the debtor, on
which they served a Ijankruptcy notice, which
was not complied with. They then presented
a bankruptcy petition, alleging the non-com-
pliance with the bankruptcy notice as the act
of bankruptcy : — Held, that no " sufficient
cause " within the meaning of section 7, sub-
section 3 of the Bankruptcy Act, 1883, had
been shewn why no receiving order should be
made. Sliaw, In re; Gill, ex parte (83 L. T.
487, 754), and Debtor, In re; Debtor, ex parte
(91 L. T. 664; affirmed, sub noni. Goldberg.
In re, 21 Times L. R. 139), distinguished.
Sunderland, In re; Leech £ Simpkinson,
ex parte, 80 L. J. K.B. 825; [1911] 2 K.B.
658; 105 L. T. 233; 18 Manson, 123; 55 S. J.
568; 27 T. L. R. 454— C.A.
Existence of Yalid Deed of Assign-
ment— No Assets.] — Even in a case where the
debtor has assigned all his assets to a trustee
for the benefit of creditors by a deed which has
become unimpeachable by lapse of time, the
Court will not refuse to make a receiving order
unless clearly convinced, not only that there
are, but also that there will be, no assets in
the bankruptcy. Scott, In re; Paris-Orleans
Railwaij, ex parte, 58 S. J. 11 — C.A.
Extortion — Possible Appointment of Seques-
tration of Benefice — Futility of Bankruptcy
Proceedings.] — A creditor who was a mort-
gagee presented a bankruptcy petition against
the incumbent of a benefice, and having
withdrawn it on a payment by the debtor's,
relatives, presented another petition for the
balance, and it was also withdrawn on their
making another payment. The creditor then
presented another petition for the remaining
balance and the debtor gave evidence that he-
believed there would be a surplus. A receiving
order was made against the debtor : — Held.,
first, that the circumstances did not shew that
there was any extortion ; and secondly, that the
possibility of the bishop appointing a seques-
trator of the benefice did not prove that the
bankruptcy proceedings would be futile ; and
that therefore the receiving order must be
affirmed. Hay, In re, 110 L. T. 47;
30 T. L. R. 131— D.
Form of Receiving Order.] — A receiving
order recited an act of bankruptcy as having
been committed " on or about " August 31 : —
Held, that a receiving order should state with
certainty the date of the act of the bankruptcy
committed. The introduction of such words as
"on or about " introduces an undesirable
vagueness. Herman, In re; Pharaoh tC Co.,
ex parte, [1915] H. B. R. 41— C.A.
Meeting of Creditors — Adjournment.] — See
Silber, In re {No. 2), infra, sub tit.
Adjudication.
VII. COMPOSITION AND SCHEME OF
ARRANGEMENT.
See also Vol. II. 194, 1971.
Scheme of Arrangement — Approval by Court
— " Reasonable security " for Payment of
7s. 6d. in the Pound.] — In a case coming
within section 3, sub-section 9 of the Bank-
ruptcy Act, 1890, the Court has no discretion
to approve a scheme of arrangement proposed
by a debtor unless satisfied that the scheme
provides reasonable security for payment of not
less than 7s. 6d. in the pound on all the
unsecured debts. It makes no difference that
the creditors are themselves in favour of the
scheme and have approved it. Paine, In re;
Paine, ex parte ([1891] W. N. 208), followed.
Webb, In re; Board of Trade, ex parte,
83 L. J. K.B. 1386; [1914] 3 K.B. 387;
111 L. T. 175; 21 Manson, 169; 58 S. J.
581— C.A.
VIII. ADJUDICATION.
See also Vol. II. 227, 1974.
Meeting of Creditors — Creditors Desiring
Adjournment — Discretion of Registrar,] —
At the first adjournment of the first meeting
of the creditors of the debtor, the official
receiver declined further to adjourn the meet-
ing, and did not put a resolution that the
debtor should be adjudged bankrupt, but stated
his intention to apply. The application for
adjudication was subsequently made and sup-
ported by creditors for 14(),000/. Certain credi-
tors and the debtor opposed the application,
and desired an adjournment thereof in order
to call a new meeting of creditors and formu-
late a scheme. The Registrar declined to
adjourn the application, and made the order
99
BANKEUPTCY.
100
for adjudication : — Held, that he had exercised
his discretion rightly. Silber, In re (No. 2),
[1915] H. B. R. 97— C.A.
IX. DISCHARGE.
See also Vol. II. 246, 1976.
Jurisdiction — Allegations that Bankrupt has
Committed Criminal Offences.] — On a bank-
rupt's application for his discharge, the Court
has not jurisdiction to try whether he has
been guilty of criminal offences. The proviso
in section 8, sub-section 2 of the Bankruptcy
Act, 1890, that the Court shall refuse the dis-
charge in all cases where the bankrupt has
committed any misdemeanour under the
Debtors Act or the principal Act, or any mis-
demeanour of felony connected with his bank-
ruptcy, applies only to cases where the
bankrupt has been tried and found guilty by
a competent tribunal of any of the offences
referred to. Wood, In re; Leslie, Lim., ex
parte, [1915] H. B. R. 53; 59 S. J. 334— C.A.
Lapse of Time may be a New Fact — Dis-
cretion.]— ^Yhere a bankrupt applies for his
discharge the Judge may take into considera-
tion other offences and other facts than those
disclosed in the official receiver's report, and
his discretion is unlimited. Shields, In re,
106 L. T. 345— D.
Semble, lapse of time and good conduct on
the part of the bankrupt may be such new
facts as will justify a Judge in reviewing his
decision on a subsequent application. lb.
Unconditional Refusal — Appeal — Order
Varied — Suspension Dating from Application
for Discharge.] — A bankrupt's application for
discharge will only be unconditionally refused
in very exceptional circumstances. Delay in
applying for a discharge, in the absence of
fraud, will not justify such refusal. If an
order made on an application for discharge is
varied on appeal, the order so varied shall be
dated of the day on which the application was
made, and shall take effect from the day on
which such order was drawn up. Pearse,
In re; Bankrupt, ex parte, 107 L. T. 859— D.
Undischarged Bankrupt — Contract — Con-
sideration— Policy of Bankruptcy Law — Debt
Provable in Bankruptcy — Agreement by Bank-
rupt to Pay in Full — Validity.] — An agree-
ment by an undischarged bankrupt that he
will pay in full a debt provable in the bank-
ruptcy, in consideration of an advance then
made to him by the creditor, is not an agree-
ment which is contrary to the policy of the
bankruptcy law, but may be enforced by the
creditor against the bankrupt. Wild v.
Tucker, 83 L. J. K.B. 1410; [1914] 3 K.B.
36; 111 L. T. 250; 21 Manson, 181;
30 T. L. R. 507— Atkin. J.
Discharge of Debt — Subsequent Acknow-
ledgment of Debt by Foreign Document —
Absence of Consideration — 'Valid Agreement
according to Italian Law — Conflict of Laws —
Valid Claim."! — A debtor, who was an Italian
subject carrying on business in London, be-
came bankrupt in 1897 and obtained his dis-
charge in 1901. Prior to the bankruptcy he
had borrowed money from a creditor, who was
an Italian subject, residing in Italy, and owed
him 1,350Z. at the date of the bankruptcy.
The debtor did not disclose this debt in the
bankruptcy, and the creditor became aware of
the bankruptcy for the first time in 1908, after
the debtor's death. In 1906 the debtor, while
in Italy, signed a document called a privata
scrittura, in which he acknowledged his indebt-
edness, and undertook to pay the debt off
within five years, with interest. The estate
of the debtor was being administered by the
Court, and the creditor's claim against the
estate for some 1,758L was disallowed by the
Master. Eve, J., dismissed a summons to
vary the Master's certificate. On an appeal
from that decision, — Held, that the privata
scrittura was a valid agreement according to
Italian law, although not entered into for
valuable consideration, and that the creditor
was entitled to enforce his claim under it
notwithstanding the provisions of section 30,
sub-section 3 of the Bankruptcy Act, 1883.
Bonacina, In re; Le Brasseur v. Bonacina,
81 L. J. Ch. 674; [1912] 2 Ch. 394; 107 L. T.
498 ; 19 Manson, 224 ; 56 S. J. 667 ; 28 T. L. R.
508— C.A.
Jakeman v. Cook (48 L. J. Ex. 165; 4 Ex.
D. 26) and Aylmer, In re; Aylmer, ex parte
(70 L. T. 244; sub nom. Aylmer, In re; Crane,
ex parte, 1 Manson, 391), applied. lb.
B. PROPERTY AND ADMINIS-
TRATION.
I. PROPERTY PASSING TO TRUSTEE.
1. Gexek.\lly.
See also Vol. II. 292. 1979.
InsolTent Trader — Secured Creditor —
Fraudulent Transfer — Exchange of Mortgage
on Business for Debentures in Company.] — A
trader who fraudulently transferred his busi-
ness to a company induced a mortgagee of the
business to accept debentures in the company
in exchange for the mortgages he held prior
to the formation of the company. On the
transfer to the company being set aside, —
Held, that the mortgagee was not entitled to
be put back into his original position, but that
he could prove against the debtor's estate for
damages he had sustained by reason of the
debtor's fraud. Slobodinsky, In re; Moore,
ex parte (72 L. J. K.B. 883; [1903] 2 K.B.
517), considered. Goldburg, In re: Silver-
stone, ex parte. 81 L. J. K.B. 382; [1912]
1 K.B. 384; 105 L. T. 959; 19 Manson, 44—
Phillimore, J.
Fraudulent ConYeyance — Part of Property.]
— A debtor who was hopelessly insolvent car-
ried on business till August, 1914, when he
gave his manager P. notice to leave. P. con-
ceived the idea of forming a private company,
and consulted one G., who was invited to come
in, while the debtor agreed to lend his name.
Discussion took place, and the result was that
on August 31, 1914, a private company was
formed, of which the signatories and first
101
BANKEUPTCY.
102
directors were the debtor, P., and G., the
debtor being managing director at a salary of
300/. per annum. The company had its offices
at the debtor's business premises. At a board
meeting on September 7, 1914, G. stated that
the debtor (who was absent) was willing to
sell to the company the whole of the machinery
on his premises, which was worth about
l.OOOZ., for 400L in fully paid shares of the
company, and the greater part of his stock for
600Z. in cash, and resolutions were passed
accordingly accepting these terms : — Held,
that the sale of the machinery by the debtor
to the company on September 7 was a fraudu-
lent conveyance of part of his property within
section 4, sub-section 1 (6) of the Bankruptcy
Act, 1883. Herman, In re; Pharaoh d Co.,
ex parte, [1915] H. B. E. 41— C. A.
Assignment of Beneficial Interest in Lease
— Trustee and Cestui que Trust — Damages for
Breach of Covenant — Bankruptcy of Lessee —
Recovery of Judgment Debt from Beneficial
Owner under Indemnity — Bights of Trustee in
Bankruptcy and Landlord.] — A lessee became
trustee of the leasehold premises for his wife
by reason of the purchase by her of the bene-
ficial interest therein, and the wife as such
beneficial owner was liable to indemnify her
husband against any claim by the landlord
under the covenants in the lease. On the
expiration of the lease the landlord obtained
judgment against the lessee for 711/. for rent
and damages for breach of covenant, but before
the amount of the lessee's liability was ascer-
tained the lessee was adjudicated a bankrupt.
The landlord obtained leave in the bankruptcy
to commence an action in the joint names
of the trustee in bankruptcy and himself to
recover the 711Z. from the wife under the
lessee's right of indemnity, but without
prejudice to the question whether the money
so recovered should be treated as assets in the
bankruptcy or be retained by the landlord.
The action was brought and was compromised
by the payment by the wife of 520Z. : — Held,
that the trustee in bankruptcy could only
avail himself of the right of indemnity for the
purpose of passing on the money to the
principal creditor, and that consequently the
landlord was entitled to retain the money
on account of his debt. Richardson, In re;
St. Thomas's Hospital, ex parte, 80 L. J.
K.B. 1232 ; [1911] 2 K.B. 705 ; 105 L. T. 226 ;
18 Manson, 327— C. A.
Assignment of Debtor's Business to Com-
pany — Bankruptcy of Debtor — Business
Carried on by Receiver of Debenture-holders
— Assignment Set Aside as Fraudulent —
Liability of Receiver to Trustee in Bank-
ruptcy.]— Where the transfer of a debtor's
business to a company is subsequently set aside
as an act of bankruptcy to which the title of
the trustee in bankruptcy relates back, and the
business of the company has in the meantime
been carried on by a receiver appointed by
the debenture-holders of the company, the
receiver is liable as a trespasser to account to
the trustee for the assets (if any) of the debtor
which may have come to his hands or for the
value of them. Goldburg, In re; Page, ex
parte, 81 L. J. K.B. 663; [1912] 1 K.B. 606;
106 L. T. 431 ; 19 Manson, 138— Phillimore, J.
Equitable Execution — Priority as between
Judgment Creditor and Trustee in Scottish
Bankruptcy.]— The plaintiffs in 1911 recovered
judgment against a Mrs. W., who had a
furnished flat, which was let to the defendant.
The plaintiffs obtained the appointment of a
receiver of Mrs. W.'s interest in the flat, and
notice of the receivership order was served
upon the defendant with a request to pay the
rent to the plaintiffs, but nothing further was
done to enforce the order. In 1913 Mrs. W.
became bankrupt in Scotland, and the trustee
appointed in such bankruptcy claimed the rent
due from the defendant to Mrs. W. in respect
of the flat. The receiver appointed on behalf
of the plaintiffs also claimed the rent. In an
interpleader issue as to whether the receiver or
the trustee was entitled to the money, — Held,
that the rights of the parties had to be deter-
mined under the Bankruptcy (Scotland) Act,
1856, and not under the Bankruptcv (Scotland)
Act, 1913, and that under the Act of 1856 it
was not necessary, in order for a judgment
creditor to succeed in his claim against the
trustee in the Scottish bankruptcy, to shew
that he was a secured creditor ; it was sufficient
for him to shew that he had obtained a re-
ceivership order, which prevented the assets
which were being claimed being assigned by
the judgment debtor, and that therefore the
title of the plaintiffs under the receivership
order was preferable to that of the trustee in
bankruptcy. Galbraith v. Grimshaw (79 L. J.
K.B. 1011; [1910] A.C. 508) and .Anglesey
(Marquis), In re; De Galve iCountess) v.
Gardner (72 L. J. Ch. 782; [1903] 2 Ch. 727),
applied. Singer d Co. v. Fry, 84 L. J. K.B.
2025; 113 L. T. 552; [1915] H. B. E. 115—
Bailhache, J.
2. Eeal and Personal Property.
See also Vol. II. 294, 1983.
Undischarged Bankrupt — Appointment by
Will of Bankrupt under General Power —
Assets for Payment of Bankrupt's Debts —
Claim by Creditors in Bankruptcy in Adminis-
tration of Bankrupt's Estate.] — A debtor,
under a will, took a life interest in 15,000/.
subject to a trust over for accumulation in
case of his bankruptcy, and was given a
general power of appointment over the
accumulated fund by will. The debtor was
adjudicated bankrupt in 1890 and 1892. A
dividend of 5^. 2d. was paid in the first bank-
ruptcy and nothing in the second. The debtor
never obtained his discharge in either bank-
ruptcy. The debtor exercised his power of
appointment by his will, and died on July 20,
1911. In an action in the Chancery Division
an order was made for the administration of
the debtor's estate, which consisted practically
only of the appointed fund. Creditors in the
two bankruptcies claimed to prove in the
administration for the balance of their claims
in the bankruptcies. Warrington. J., fol-
lowing Cruedalla. In re; Lee v. Guedalla's
Trustee (75 L. J. Ch. 52; [1905] 2 Ch. 331),
held that the fund, though assets for the pay-
103
BANKKUPTCY.
104
ment of the debtor's debts, did not pass to the
trustees in bankruptcy, and that the creditors
were precluded by section 9 of the Bankruptcy
Act, 1883, from claiming on the fund. On
appeal, — Held, that the fund did not pass
to the trustees in bankruptcy, and that the
claims were barred by the Statute of Limita-
tions. Benzon, In re; Bower v. Chetwynd,
83 L. J. Ch. 658; [1914] 2 Ch. 68; 110 L. T.
926; 21 Manson, 8 ; 58 S. J. 430; 30 T. L. K.
435— C. A.
After-acquired Property — Chose in Action —
Settlement on Marriage — Bona Fides — Yalua-
able Consideration — Notice — Non-inter¥ention
of Trustee in Bankruptcy.] — The rule laid
down m Cohen v. Mitchell (59 L. J. Q.B. 409,
411 ; 25 Q.B. D. 262, 267), that until the trustee
intervenes all transactions by a bankrupt after
his bankruptcy, with any person dealing with
him bona fide and for value, in respect of his
after-acquired property, whether with or with-
out knowledge of the bankruptcy, are valid
against the trustee, applies to a chose in action
the title to which accrued to the bankrupt after
his bankruptcy and before his discharge.
Behrend's Trust, In re; Surman v. Biddell,
80 L. J. Ch. 394 ; [1911] 1 Ch. 687 ; 104 L. T.
626; 18 Manson, 111; 55 S. J. 459— Swinfen
Eady, J.
A settlement by the bankrupt upon his
second marriage of a chose in action of this
description consisting of his right to a fund in
the hands of the trustees of a settlement
executed upon his first marriage, if a bona
fide transaction, is such a transaction as is
contemplated by the rule, notwithstanding that
the trustees holding the fund have notice of
the bankruptcy prior to the assignment to the
trustees of the settlement made on the second
marriage, provided that there has been no
active intervention on the part of the trustee
in bankruptcy. lb.
3. Various Kinds of Property.
See also Vol. II. 366, 1986.
Client's Securities Pledged to Bank by
Brokers — Sale of Securities by Pledgee —
Secured Creditor — Marshalling Securities.] —
A firm of stockbrokers purchased various shares
for a client and lent him part of the purchase
money on the security of the shares so pur-
chased, and for that purpose deposited the
shares with a bank, who held the securities
not merel}' against the loans made to the
client through the brokers, but against the
brokers' general loan account with the bank.
The brokers became bankrupt, and the bank
realised as much of the security in its hands
as was necessary to satisfy its claim against
them. The client's securities pledged to the
bank and realised by it exceeded the amount
of the client's liability to the brokers. On
application being made by the client for the
trustee in bankruptcy to hand over the surplus
securities remaining after the bank had paid
itself in full, — Held, that the brokers could not
pass to the bank a greater interest in the
client's securities than that which they them-
selves possessed, and that, on the analogy of
the equitable doctrine of " marshalling," the
client, his own securities having been realised,
was entitled to such others as remained in the
hands of the trustee in part satisfaction of his
claim. Burge, Woodall cf Co., In re; Skyrme,
e.T parte, 81 L. J. K.B. 721; [1912] 1 K.B.
393; 106 L. T. 47; 20 Manson, 11— Philli-
more, J.
Deed of Assignment — Possession of Property
in Deed by Trustee — Bankruptcy of Debtor —
Liability of Trustee of Deed to Account to
Trustee in Bankruptcy.] — A debtor executed
a deed of assignment and, in order to avoid a
threatened distress, handed the key of his
business premises to the trustee of the deed.
The trustee executed the deed of assignment,
accepted the key, valued the stock-in-trade
on the premises, and subsequently, on the
authority of the creditors, handed back the key
to the debtor, who disposed of the stock-in-
trade and became bankrupt within three
months : — Held, that the trustee had taken
possession of the property and was accountable
for its value to the trustee in the bankruptcy.
Prigoshen, In re; Official Receiver, ex parte,
81 L. J. K.B. 1199; [1912] 2 K.B. 494;
106 L. T. 814; 19 Manson, 323; 56 S. J. 554
— Phillimore, J.
4. Property Included in Voidable
Settlements.
See also Vol. II. 418, 1991.
Voluntary Settlement — Subsequent Bank-
ruptcy of Settlor — Transfer by Voluntary
Donee after Act of Bankruptcy for Valuable
Consideration and without Notice.] — A trans-
fer, for valuable consideration and without
notice, from a donee under a voluntary settle-
ment is valid as against the trustee in the
subsequent bankruptcy of the voluntary settlor,
even although the act of bankruptcy on the
part of the voluntary settlor has been com-
mitted within two years of his making the [_
settlement, and even although the transfer
from the voluntary donee has taken place after
the act of bankruptcy. Hart, In re; Green,
ex parte, 81 L. J. KB. 1213; [1912] 3 K.B.
6; 107 L. T. 368; 19 Manson, 334; 56 S. J.
615; 28 T. L. E. 482— C. A.
Assignment of Life Insurance Policy
— Bankruptcy of Assured — Subsequent
Payments by Insurance Company to Bank-
rupt— Conversion of Lapsed Policy into
Paid-up Policy — Notice — Title of Trustee.] —
J. S. effected a policv of insurance on his own
life with the N. B." & M. I. Co. for 60,000
rupees in June. 1903. This policy he subse-
quently assigned to his wife in April, 1905, but
such assignment was to be revoked in the
event of his wife predeceasing him. Within
seven months of such assignment the assured
was adjudicated bankrupt, and in June, 1906,
the policy lapsed. In December, 1906, certain
sums, in respect of bonus and refund of
premiums, on the lapsed policy, were paid by
the insurance company to the bankrupt. In
June, 1910, at the request of the bankrupt and
his wife, the old policy was converted into a
paid-up non-participating policy for 12,000
rupees, and against this policy the insurance
105
BANKRUPTCY,
IOC
company advanced two sums of 4,000 rupees
and 3,500 rupees to the bankrupt's wife. Upon
application by the trustee in bankruptcy to set
aside the assignment to the bankrupt's wife,
and to have the policy handed over to him free
from incumbrances, and for the payment to
him of the sum paid to the bankrupt by the
insurance company, it was agreed that the
question whether the insurance company had
notice of the English bankruptcy in December,
1906, or at any material time should stand
over until after further discovei-y : — Held, that,
whether or not the insurance company had
notice of the English bankruptcy, the trustee
was entitled to the various sums paid by the
insurance company to the bankrupt. Held
also, that, if the insurance company had notice,
the trustee was entitled to have the converted
policy handed over to him free from incum-
brances; but that, if the company had no
notice, the trustee, following the decision in
Hart, In re: Green, ex parte (81 L. J. K.B.
1213; [1912] 3 K.B. 6), must take the policy
subject to such incumbrances. Shrager, In re,
108 L. T. 346— Phillimore, J.
Gift for Special Purpose — No " transfer
of property " to Donee — Purchaser for
Value.] — A bankrupt within two years of
his bankruptcy, in order to assist his
nephew to obtain a lease of a public house,
purchased a clock and had it fixed on to the
public house. The lessors of the public house,
in consideration of the clock being affixed to
the premises as landlord's fixtures, granted a
lease of the premises to the nephew at a
reduced rent. The trustee in bankruptcy
claimed the clock or its value as a gift to the
nephew constituting a voluntary settlement
within section 47 of the Bankruptcy Act,
1883 : — Held, that the clock having been
transferred to the lessors for value could not
be claimed by the trustee; that there was no
gift of the clock as a chattel to the nephew ;
that the reduction of rent did not amount to
a retention of any property in the clock by
the nephew, and that its value could not
therefore be claimed by the trustee. Branson,
In re; Moore, ex parte; Trustee v. Branson,
83 L. J. K.B. 1673; [1914] 3 K.B. 1086;
111 L. T. 741; 21 Manson, 229; 30 T. L. E.
604— C. A.
Valuable Consideration.] — The release of
a right to sue for a breach of trust is valuable
consideration within the meaning of section 47.
Pope, In re; Dicksee, ex parte (77 L. J. K.B.
767; [1908] 2 K.B. 169), approved. Parry,
In re; Trustee, ex parte (73 L. J. K.B. 83;
[1904] 1 K.B. 129). distinguished. Collins,
In re, 112 L. T. 87— Horridge, J.
Marriage Settlement — Furniture — Covenant
by Husband to Settle After-acquired Furniture
— Subsequent Purchase of Furniture — Use of
Same at Family Residence — No Formal Trans-
fer to Trustees of Settlement — Bankruptcy of
Husband — Claim by Trustee in Bankruptcy —
"Actually transferred."] — By a marriage
settlement in 1H99 the husband settled the
furniture and household effects in his private
residence upon trust for the separate use and
enjoyment of his wife for her life, and after
her death upon trusts for the benefit of himself
and the children of the marriage, and
covenanted that any household effects pur-
chased by him during the life of his wife
should form part of the trust property and
should be transferred to the trustees of the
settlement. The husband and wife frequently
changed their residence, and in 1908 moved
into a large house, where they lived until the
husband became a bankrupt. On that occasion
he purchased a large quantity of furniture,
which was used in the house. No part of the
furniture was formally transferred to the
trustees of the settlement and no inventory was
taken of the same, but the sole acting trustee
was in the habit of visiting at the house, and
saw the furniture there. In December, 1909,
a receiving order was made against the hus-
band, and he was adjudicated a bankrupt in
March, 1910. In January, 1910, he sent all
the furniture from his house to a warehouse.
The trustee in his bankruptcy claimed the
purchased furniture on the ground that it had
not been " actually transferred " to the trustee
of the settlement pursuant to the covenant
within the meaning of the Bankruptcy Act,
1883, s. 47, sub-s. 2. -.—Held, that the words
" actually transferred " in section 47, sub-
section 2, must be read with reference to the
nature of the property; that, inasmuch as the
furniture in question passed by delivery, in
the view of the law there had been under the
circumstances an actual transfer of such furni-
ture by the husband to the trustee of the
settlement and a handing back of the same
by the trustee to the wife to be used by her
in accordance with the trusts of the settlement,
and that consequently the claim of the trustee
in bankruptcy failed. Dictum of Wright, J.,
in Reis, In re; Clough, ex parte (73 L. J. K.B.
929, 932; [1904] I'K.B. 451, 456), overruled.
Magnus, In re: Salaman. ex parte, 80 L. J.
K.B. 71; [1910] 2 K.B. 1049; 103 L. T. 406;
17 Manson, 282— C. A.
5. Property in the Order and Disposition
OF THE Bankrupt.
See also Vol. II. 434, 1995.
Bill of Sale — Grantor.] — Where the grantor
of a bill of sale remains in possession of the
goods comprised in such bill of sale under the
provisions of section 7 of the Bills of Sale
(Ireland) Act, 1879, Amendment Act, 1883, and
becomes bankrupt before any instalment has
become due under the bill of sale, the goods are
in his possession, order, or disposition with the
consent of the true owner within the meaning
of the " reputed ownership " section 313 of the
Irish Bankrupt and Insolvent Act, 1857, and
the assignee in the bankruptcy is entitled to
retain the goods as against the grantee under
the bill of sale. HoUinshead v. Egan, Lim.,
83 L. J. B.C. 74; [1913] A.C. 564; 109 L. T.
681 ; 20 Manson. 323 ; 57 S. J. 661 ; 29 T. L. R.
640— H.L. dr.)
Ginger, In re; London and Universal Bank,
ex parte (66 L. J. Q.B. 777; [1897] 2 Q.B.
461), approved and followed. Stanley, In re
(17 L. R. Ir. 487), disapproved. lb.
Decision of Court of Appeal in Ireland,
sub nom. Harvey, In re ([1912] 2 Ir. R. 170),
reversed. lb.
107
BANKKUPTCY.
108
Mortgage of Book Debts — Bankruptcy of
Mortgagor.] — The appointment of a receiver
by mortgagees of a bankrupt's book debts,
unless follo'wed by notice to the debtors within
reasonable time, is not sufficient to take the
goods out of the bankrupt's order and disposi-
tion. Rutter V. Everett (64 L. J. Ch. 845;
[1895] 2 Ch. 872) discussed. Neal, In re;
Trustee, ex parte, 83 L. J. K.B. 1118; [1914]
2 K.B. 910; 110 L. T. 988; 21 Manson, 164;
58 S. J. 536— Horridge, J.
Goods Lying in Warehouse.] — Goods which
would not pass to the trustee as being in the
order or disposition of the bankrupt, if they
were upon the bankrupt's premises, will not
pass to the trustee if they are lying in the
warehouse of a third party in the name of the
bankrupt. Keller, In re; Rose, ex parte,
109 L. T. 880; 58 S. J. 155— Horridge, J.
Deposit of Shares between Act of Bank-
ruptcy and Adjudication.] — By section 313 of
the Irish Bankrupt and Insolvent Act, 1857,
if a bankrupt, at the time he becomes bank-
rupt, shall, by the consent and permission of
the true owner thereof, have in his possession,
order, or disposition, any goods or chattels
whereof he was reputed owner, the Court has
power to order the same to be sold for the
benefit of the creditors under the bankruptcy.
M. was adjudicated bankrupt on August 21,
1914, upon an act of bankruptcy committed
on June 21, 1914. Between these dates he
had deposited certain share certificates and a
policy of insurance with a bank as security
for his account : — Held, that M. had become
bankrupt within the meaning of section 313
at the date of the act of bankruptcy, and that,
as at that date he himself was the true owner
of the shares, the section did not applv. Lyon
V. Weldon (2 Bing. 334) and The Ruby
(83 L. T. 438) followed. Mackay, In re,
[1915] 2 Ir. R. 347— C. A.
Deposit of Policy of Insurance — Notice to
Insurance Company after Adjudication, but
before Order of Sale.l— In April, 1914, M.
deposited two policies of insurance with a bank
as security for his account. On August 15 he
executed a legal mortgage of them to the
bank. On August 21 he was adjudicated bank-
rupt, and on the same day notice of the
mortgage was sent by the bank to the insur-
ance company. In November, 1914, an order
was made ex parte under section 313 of the
Irish Bankrupt and Insolvent Act, 1857, for
the sale of the policies for the benefit of the
creditors under the bankruptcy : — Held, that
the policies were, by the consent of the true
owner, in the order and disposition of the
bankrupt, and that the bank should be ordered
to deliver them to the assignees in bankruptcy.
Malet's Trusts, In re (17 L. R. Ir. 424), and
Bradley v. James (It. R. 10 C. L. 441) con-
sidered. Mackay, In re, [1915] 2 Ir. R. 347
— C.A.
Chattels Personal — Fixtures Separately
Assigned by Bill of Sale — Shop Furniture —
Attachment to Premises — Action by Grantee
of Bill of Sale against Trustee in Bankruptcy
of Grantor.] — The tenant of a chemist's shop
placed certain articles of shop furniture on the
premises for the purposes of his business, and,
except so far as was to be inferred from the
degree of annexation, without any intention
of permanently making them part of the free-
hold. In consideration of money lent he gave
a bill of sale to the plaintiff, by which bill of
sale the articles in question were separately
assigned, and on his making default under
the bill of sale the plaintiff took possession of
the scheduled goods. The tenant having be-
come bankrupt, the defendant, as trustee in
bankruptcy, claimed the articles under the
reputed ownership clause of the Bankruptcy
Act, 1883 (section 44), contending that they
were chattels, and disposed of them in the
bankruptcy. The plaintiff brought an action
against the defendant for conversion, contend-
ing that the articles were fixtures. At the
trial the Judge found that the articles were
annexed to the premises, but only in the slight-
est possible degree, and that that degree of
annexation was only adopted for the more effi-
cient use of the articles as chattels, and he
held that, inasmuch as they remained chattels,
the defendant was entitled to them : — Held,
that there was no ground for interfering with
the Judge's decision. Horwich v. Symond,
84 L. J. K.B. 1083 ; 112 L. T. 1011 ; [1915]
H. B. R. 107 ; 31 T. L. E. 212— C.A.
6. Exceptions.
a. Trust Property.
See also Vol. II. 539, 2000.
Property Held by Bankrupt on Trust for
any other Person.] — ^Yhere an auctioneer
makes himself personally liable to pay those
whose goods he sells, irrespective of whether
he has been paid or not by the buyers, the
money which he receives from the buyers is
not impressed with any trust in favour of the
sellers, but is divisible upon his bankruptcy
among the general body of creditors. Cotton,
In re; Cooke, ex parte, 57 S. J. 174 — D.
Reversed on further evidence, 108 L. T. 310;
57 S. J. 343— C.A.
b. Pensions and Allowances.
See also Vol. II. 549, 2002.
Seizure by Sheriff under Writ of Fi. Fa. —
Ransom of Goods by Third Party — Money
Advanced for Specific Purpose.] — Under a
writ of fi. fa. the sheriff seized scenery and
theatrical costumes lying at a railway station
in the name of a judgment debtor, but not be-
ing in fact his property. The debtor had a few
days previously been adjudicated bankrupt,
although the sheriff had no notice of the fact
at the time. To release this property for a
performance which the bankrupt was under a
contract to present, a sum of money was paid
over to the sheriff by a third party, who took
a receipt from the bankrupt and deducted the
amount so paid from a share of the takings
at the theatre to which the bankrupt became
entitled under the contract at the end of the
week : — Held (Farwell, L.J., dissenting),
that the money was paid for the specific pur-
pose of releasing goods which were not the
109
BANKEUPTCY.
110
property of the bankrupt, and the ofi&cial
receiver was not entitled to the goods seized
or the money. Watson, In re; Schipper,
ex parte, 107 L. T. 783— C. A.
Decision of the Divisional Court (107 L. T.
96) affirmed. lb.
"Property" of Bankrupt — CIylI Servant of
Crown — Pension — Commuted Pension — " Com-
pensation granted by Treasury " — Gratuity.]
— A Civil servant of the Crown, who was an
undischarged bankrupt, was, on his retirement
in 1911, granted a pension of 1051. and a lump
sum of 312/. 4s. as an " additional allowance "
under the Superannuation Act, 1909, s. 1 : —
Held, that the lump sum did not vest in the
trustee in the bankruptcy under section 44 of
the Bankruptcy Act, 1883, but was " com-
pensation granted by the Treasury " within
the meaning of section 53, sub-section 2 of that
Act, and belonged to the bankrupt subject to
the provisions of this sub-section. Lupton, In
re; Official Receiver, ex parte, 81 L. J. K.B.
177; [1912] 1 K.B. 107; 105 L. T. 726;
19 Manson, 26 ; 56 S. J. 205 ; 28 T. L. K. 45—
C.A.
Assignment in Fraud of Creditors — Good
Consideration for Part of Property Assigned
— Apportionment of Benefit of Contract —
13 Eliz. c. 5.] — A debtor, in receipt of a con-
ditional life pension, assigned the same to his
sister, in consideration of her taking over, in
the first place, the liability for the payment of
an annuity of 50/. to a third party ; and
secondly, in consideration of her covenanting
to maintain the debtor and provide him with a
home. The debtor subsequently became bank-
rupt, and the assignment was impeached by
the trustee as a fraud on the creditors : — Held,
that the taking over of the liability for pay-
ment of the annuity of 50/. was good con-
sideration, and to that extent the deed must
stand ; but that after discharging the liability
for the annuity, the assignee must pay over
the remainder of the pension to the trustee.
Sturmey's Trustee v. Sturmey, 107 L. T. 718
— Phillimore, J.
7. Rights to Property of Trustees in
Successive Bankruptcies.
See also Vol. II. 551, 2003.
New Zealand Bankruptcy — Reversionary In-
terest in England — Subsequent English Bank-
ruptcy— Domicil — Title of Official Assignee in
Bankruptcy of New Zealand — Statutory
Assignees — Notice.] — In September, 1898, a
debtor was adjudicated bankrupt in New Zea-
land and obtained his discharge in New
Zealand in December, 1900. In January,
1904, he was adjudicated a bankrupt in
England, and the official receiver became the
trustee in bankruptcy. The debtor at the date
of his New Zealand adjudication and also of
his English adjudication was entitled to a
reversionary interest in personalty comprised
in the marriage settlement of his parents. The
debtor did not disclose this reversionary in-
terest in either bankruptcy, but in August,
1909, it was discovered by the official receiver
in the English bankruptcy, and he immedi-
ately gave notice to the persons in possession
of the trust funds claiming any interest which
was vested in the debtor : — Held, that, not-
withstanding the fact that the official receiver
in England was the first to give notice of his
title to the trustees of the fund, the official
assignee in New Zealand was entitled as
against the official receiver in bankruptcy in
England to the reversionary interest. David-
son's Settlement, In re (42 L. J. Ch. 347;
L. R. 15 Eq. 383), and Lawson's Trusts, In re
(65 L. J. Ch. 95; [1896] 1 Ch. 175), followed.
Anderson, In re; New Zealand Official
Assignee, ex parte, 80 L. J. K.B. 919; [1911]
1 K.B. 896 ; 104 L. T. 221 ; 18 Manson, 216
— Phillimore, J.
Life Policy Effected by Bankrupt before
Discharge — Premium Paid by Bankrupt with-
out Knowledge of Trustee — Discharge — Second
Bankruptcy — Death of Bankrupt— Claim by
Trustee in Second Bankruptcy to Amount Paid
in Premiums.] — An undischarged bankrupt,
unknown to the trustee in bankruptcy, effected
a policy on his own life and paid the first
premium thereunder. Subsequently he was
discharged and continued to pay the premiums
until his death, which occurred in a motor-
car accident. Less than a month before his
death he had again been adjudicated bank-
rupt : — Held, that the trustee of the first bank-
ruptcy, although an officer of the Court, was
under no legal, equitable, or moral obligation
to allow the trustee in the second bankruptcy
out of the policy moneys a sum equal to the
amount of the premiums paid in respect of the
policy. Tyler, In re; Official Receiver, ex
parte (76 L. J. K.B. 541; [1907] 1 K.B. 865),
distinguished. Tapster v. Ward (101 L. T.
503) followed. Phillips, In re, 83 L. J. K.B.
1364 ; [1914] 2 K.B. 689 ; 110 L. T. 939 ; 21
Manson, 144; 58 S. J. 364— Horridge, J.
II. RELATION OF TRUSTEE'S TITLE.
.See also Vol. II. 554, 2004.
Advance to Pay off Petitioning Creditor —
"Money impressed with a trust."] — A sum
of money was advanced by a debtor's stock-
broker to him in order to pay off a pressing
petitioning creditor, the understanding being
that the money was to be used for that pur-
pose. The petitioning creditor's solicitors had
already refused a cheque, and had notice of an
available act of bankruptcy, but accepted pay-
ment of the money advanced by the stock-
broker, which was brought by the debtor's
secretary later on the same day on which the
cheque had been refused : — Held, that the
money had never been under the debtor's con-
trol, and was so impressed with a trust as to
prevent the trustee in bankruptcy from recover-
ing the amount by virtue of the relation back
of his title. Drucker, In re; Basden, ex parte
(No. 1) (71 L. J. K.B. 686; [1902] 2 K.B.
237 ; 9 Manson, 237), followed. Hooley, In re;
Trustee, ex parte, 84 L. J. K.B. 1415; [1915]
H. B. R. 181— Horridge, J.
Partnership Action — Judgment Creditors —
Order by Consent During Period of Relation
— Subsequent Adjudication — Secured Creditors
Ill
BANKEUPTCY.
112
— Notice of Act of Bankruptcy.] — An order
in a partnership action was made by consent
after petitions in bankruptcy had been pre-
sented against the debtors, but before adjudi-
cation. The debtors (who were the plaintiff
and defendant in the action), a receiver of the
partnership assets, and two firms of solicitors
who had acted respectively for the defendant
and the receiver in the action, were among
the parties to the order, and all had notice of
available acts of bankruptcy against the
debtors. The order directed the taxed costs
of the two firms of solicitors to be paid out
of the partnership assets by the receiver. The
debtors were subsequently adjudicated bank-
rupts, and the two firms of solicitors respec-
tively moved the Court for payment of the
taxed costs under the order to them, as secured
creditors, by the trustee in bankruptcy : —
Held, that, although the consent order had
the effect of creating equitable charges in
favour of the applicants, the trustee, not
having been a party to the order, could not
be bound thereby, and that the effect of the
relation back of the trustee's title to a date
anterior to the date of the order was to make
the applicants merely unsecured creditors, and
that they, having notice of available acts of
bankruptcy against the debtors, could not
claim the protection of section 45 of the Bank-
ruptcv Act, 1914. Potts, In re; Taylor, ex
parte' m L. J. Q.B. 392; [1893] 1 Q.B. 648;
10 Morrell, 52), distinguished. Gershon d
Levy, In re; Coote d Richards, ex parte,
84 L. J. K.B. 1668; [1915] 2 K.B. 527;
[1915] H. B. R. 146; 59 S. J. 440— Horridge,
III. PROOF OF DEBTS.
See also Vol. II. 584, 2008.
Separation Deed — Covenant to Pay Annuity
— Provable Debt— Discharge from Obligation.]
— The contractual obligation of a husband
under a separation deed to pay an annuity to
his wife is a liability provable in his bank-
ruptcy, and if not proved for by the wife no
action can afterwards be maintained against
the husband in respect thereof. Pannell, In
re; Bates, ex parte (48 L. J. Bk. 118;
11 Ch. D. 914), and Neal, Ex parte; Batey,
in re (14 Ch. D. 579), followed. Linton v.
Linton (54 L. J. Q.B. 529; 15 Q.B. D. 239)
distinguished. Victor v. Victor, 81 L. J.
K.B. 354; [1912] 1 K.B. 247; 105 L. T. 887;
19 Manson, 53; 56 S. J. 204; 28 T. L. R. 131
— C.A.
By Company— Company Dissolved— Substi-
tution of Proof by Sole Debenture-holder —
Equitable Assignment — Bona Vacantia.] — An
equitable assignee of a debt may substitute a
proof in bankruptcy for that of the assignor
in the same way as a legal assignee was
allowed to substitute a proof in Iliff, In re
(51 W. R. 80). As the Crown may be a
claimant of the debt as bona vacantia, notice
of such an order must be given to the Crown.
Hills, In re; Lang, ex parte, 107 L. T. 95
— D.
By Alien Enemy.]— See Alif.n.
Contingent Liability — Provable Debt — Un-
successful Action by Debtor — Order for New
Trial — Costs of First Trial to Abide Event of
Nev? Trial.] — An action for wrongful dismissal
tried before a Judge and a special jury was
dismissed with costs. On the application of
the unsuccessful plaintiff the Court of Appeal
made an order for a new trial and that the
costs of the first trial should abide the event
of the new trial. The plaintiff became bank-
rupt, but a composition scheme having been
approved by the Court the bankruptcy was
annulled. The defendants in the action were
not the petitioning creditors, nor were they
parties to the scheme. After the annulment
the new trial took place, when judgment was
ordered to be entered for the defendants with
costs, and that they should recover against
the plaintiff the taxed costs of the first trial
and the costs of the second trial to be taxed.
The defendants served on the plaintiff a bank-
ruptcy notice to pay them the taxed costs of
the first trial, the other costs not having been
taxed. The plaintiff applied to set aside the
notice on the ground that the amount of the
taxed costs was a provable debt in the bank-
ruptcy that had been annulled : — Held, that
at the date of the annulled bankruptcy there
was only a possibility of having to pay costs ;
that the order of the Court of Appeal did not
create any contingent liability which gave rise
to a provable debt in that bankruptcy within
the meaning of section 37, sub-sections 3 and 8
of the Bankruptcy Act, 1883, and that there-
fore the bankruptcy notice was valid. Ob-
servations of Lindlev, M.R., in Vint v.
Hudspeth (54 L. J. Ch. 844; 30 Ch. D. 24)
and in British Gold Fields of West Africa,
In re (68 L. J. Ch. 412; [1899] 2 Ch. 7),
applied. Debtor (No. 68 of 1911), In re ; Judg-
ment Creditors, ex parte (80 L. J. K.B. 1224;
[1911] 2 K.B. 652: 104 L. T. 905;
18 Manson, 311— C.A.
Fraudulent Company Promoter — Issue of
Debentures — Real Promoter not Disclosed —
Secret Profits — Bankruptcy of Promoter.] — A
corporation, consisting only of the seven signa-
tories to its memorandum of association, was
formed by D. and G., two of the signatories,
to conceal their identity of promoting com-
panies. D. and G., who were then undis-
charged bankrupts, had a controlling interest
in the shares of the corporation, were its only
directors, and divided its profits between
themselves in an agreed proportion. In 1904
the corporation contracted to buy a Welsh
quarrying interest for a small sum, and pro-
moted a company to purchase the same from
it at a greatly enhanced price in cash and
shares. The seven signatories to the memo-
randum of association of this company and its
directors were found by D. and G. and were
their creatures. These signatories and the
corporation were the only shareholders, and
no issue of shares was made to the public, but,
immediately after the incorporation of the
company, D. and G. prepared prospectuses,
which were issued by the company to the
public, inviting subscriptions for an issue of
debentures. Out of sums subscribed on the
faith of these prospectuses, the company paid
the corporation some 9,000/. on account of the
113
BANKRUPTCY.
114
purchase price of the quarrying interest, and
D. and G. divided this sum between them-
selves. The prospectuses disclosed that the
corporation was the promoter of and vendor
to the company and was making a large profit,
but did not disclose the fact that D. and G.
were the real promoters and vendors and were
receiving the profit through the corporation.
Early in 1906 the company was ordered to be
wound up compulsorily, and in 1908 D. and G.
were again adjudicated bankrupt and also pro-
secuted and convicted for fraudulent mis-
representations in the prospectuses : — Held,
that the corporation was a mere alias of D. and
G., and that the liquidator of the company
could prove in D.'s bankruptcy for the secret
profit received by D. and G. through the
corporation. Darby, In re; BrougJiam, ex
parte, 80 L. J. K.B. 180; [1911] 1 K.B. 95;
18 Manson, 10— Phillimore, J.
Loan to Trading Firm — Share of Profits of
a Trading Venture — "Business" within
Meaning of Partnership Act — Failure of Pro-
posed Company — Subsequent Alteration of
Terms.] — A. m December, 1910, lent to a firm
sums amounting to 13.325/. for the purposes
of a commercial adventure in Mexico, upon
the terms that the loan was repayable with
interest at 5 per cent, or, at the option of the
lender, together with a share in the profits
of the venture. A. decided in lieu of interest
to receive shares in the proposed company.
The company was never formed, and in April,
1911, the terms of the agreement were varied,
A. continuing to lend the money in considera-
tion of 5 per cent, interest and a proportion
of any profits realised out of the Mexican
venture. No profits were ever realised there-
from, and in August, 1911, the firm became
financially embarrassed. Thereupon A. under-
took to release the firm from their liability
in consideration of the individual members of
the firm accepting bills for the amount of the
loan, and an ultimate guarantee being given
by the firm for their due payment. In the
ensuing bankruptcy A. claimed to prove for
the full amount of his debt against the joint
estate of the firm : — Held, that the release of
the firm's liability in August, 1911, and the
substitution therefor of the liability of the
several partners, constituted a new agreement,
and that A. under the guarantee of August,
1911, could prove for his debt against the joint
estate of the bankrupt firm in competition with
the other creditors. — Abenheim, In re; Aben-
heim, ex parte, 109 L. T. 219— Phillimore, J.
Scriible, the transaction, although originally
within the mischief of sections 2 and 3 of the
Partnership Act, ceased to be so when in April,
1911, the source of any intended profits failed
and the advance became a mere loan at interest.
The term " business " in the Partnership Act,
1890, s. 2, sub-s. 3 td), applies not merely to a
lifelong or universal business, but to any
separate commercial venture in which a trader
or firm of traders embarks. lb.
Double Proof — Partnership — Misfeasance —
Breach of Trust— Joint and Several Liability
— Proof against Individual Partner's Estate —
Claim to Set off Debt Due to Joint Estate-
Right of Election— " Distinct contracts."! —
Where a firm, while in fiduciary relation to a
company, has secretly profited to the extent of
14,000L of the company's funds, and afterwards
become bankrupt, the partners are jointly and
severally liable for that sum. But where the
liquidator of a company had elected to prove in
the separate estate of one of the partners, it
was held that he could not afterwards, by the
provisions of rule 18, Schedule II. of the
Bankruptcy Act, 1883, set off a debt due to
the estate of the firm by the company against
the balance of his claim, as neither of the
partners had been an express trustee, and the
fiduciary relationship did not constitute a
" distinct contract " under the rule. Parkers,
In re; Sheppard, ex parte (56 L. J. Q.B. 338;
19 Q.B. D. 84), distinguished, and dictum of
Cave, J., not followed. Kent County Gas
Light and Coke Co., In re, 82 L. J. C'h. 28;
ri913] 1 Ch. 92; 107 L. T. 641; 19 Manson,
358; 57 S. J. 112— Neville, J.
Debt Contracted after Act of Bankruptcy —
Notice of Act of Bankruptcy — Onus of Proof.]
— When a tnistee in bankruptcy rejects a proof
of debt on the ground that the debt was con-
tracted with notice of an available act of bank-
ruptcy, the onus is upon him to prove that the
creditor had notice of such act of bankruptcy
— Retell, Ex parte: ToUetnache, in re (No. 2)
(13 Q.B. D. 727), distinguished. Peel, In re;
Honour, ex parte, 109 L. T. 223; 57 S. J. 730
— Phillimore, J.
First Meeting of Creditors — Quorum — Per-
sons Entitled to Vote at Meeting.' — In calcu-
lating a quorum of creditors present at a first
meeting of creditors only those who have
lodged proofs can be calculated ; consequently,
if there is only one creditor present who has
lodged a proof he forms a quorum, and can
carry a resolution for the appointment of the
trustee. Thomas. In re; Warner, ex parte,
55 S. J. 482— Phillimore, J.
IV. MUTUALCREDITS, DEBTS, AND
DEALINGS.
See also Vol. II. 851. 2023.
Set-off — Mortgage of Company's Plant —
Insurance in Name of Secured Creditor — In-
surance Money Paid to Creditor Prior to
Winding-up — Surplus over Secured Debt —
Set-off against Unsecured Debt.] — A company
borrowed money from tiie respondents, with
whom they had business dealings, giving them
as a security for the loan bills of sale on their
machinery, which in accordance with the
provisions of the bills of sale was insured ; but
at the request of the company the respondents
insured and paid the premiums, which were
repaid to them by the company. In July,
1910, a fire occurred on the premises of the
company, and the machinery was destroyed.
In September, 1910, a resolution having been
passed and duly confirmed to wind up the
company, the company went into liquidation
and was insolvent. Two weeks prior to the
commencement of the winding-up the insurance
moneys were paid over to the respondents,
who, having paid themselves the loan made
by them to the company, had in their hands a
115
BANKKUPTCY.
116
surplus, which they claimed they were entitled
to retain and set off in the liquidation against
certain unsecured book debts due to them from
the company : — Held, that there had clearly
been mutual dealings and no contract to apply
the money for a specific purpose so as to
prevent the operation of section 38 of the
Bankruptcy Act, 1883, as applied to insolvent
companies by section 207 of the Companies
(Consolidation) Act, 1908, and that the mutual'
dealings having resulted in a money claim
some time before the date of the winding-up
section 38 was applicable and a set-off must
be allowed. Thome dt Son, Lim., In re.
84 L. J. Ch. 161; [1914] 2 Ch. 438; 112 L. T.
30; [1915] H. B. E. 19; 58 S. J. 755—
Astbury, J.
Eberles Hotels and Restaurant Co. v. Jonas
(56 L. J. Q.B. 278; 18 Q.B. D. 459) applied.
Pollitt, In re; Minor, ex parte (62 L. J. Q.B.
236; [1893] 1 Q.B. 455i. and Mid-Kent Fruit
Factory, In re (65 L. J. Ch. 250; [1896] 1 Ch.
567). distinguished. Talhot v. Frere (9 Ch. D.
568), Greqson, In re: Christison v. Bolam
(57 L. J. Ch. 221 : 36 Ch. D. 223), and Gedney,
In re; Smith v. Grummitt (77 L. J. Ch. 428;
[1908] 1 Ch. 804), commented on. 76.
V. SECUEED CEEDITOES.
See also Vol. II. 885, 2026.
Creditor's Right to a Security — Obligation
to Assign Debenture as Security for Debt —
Assignment not Completed at Date of Liquida-
tion, j — A company which was indebted to the
appellant bank entered into an arrangement
whereby it was agreed that upon the bankr
surrendering certain goods, the property of the
company, which the bank held as security,
the company should obtain from one J., who
was indebted to them, a debenture or floating
charge over his assets, and should assign it to
the bank in lieu of the security so surrendered.
The property was surrendered to the company,
and the debenture was obtained from J., but
before it had been assigned to the bank the
company went into liquidation. The bank
claimed the debenture on the ground that the
company held it as trustees for them : — Held,
that as the assignment was not completed at
the date of the liquidation the bank had no
title to the debenture as against the liquidators
of the company. Heritable Reversionary Co.
V. Millar ([1892] A.C. 598) distinguished.
Dictum of Lord Westbury in Flee7ning v.
Howden (6 Macph. (H.L.) 113, 121) explained.
Bank of Scotland v. Macleod, 83 L. J. P.C.
250; [1914] A.C. 311; 110 L. T. 946—
H.L. (Sc.)
VI. EFFECT OF BANKEUPTCY UPON
EXECUTIONS.
See also Vol. II. 938, 2027.
Judgment Creditor — Execution — Payment to
Judgment Creditor of Debt and Costs — With-
drawal of Sheriff — Receiving Order against
Debtor — Execution, whether " completed " —
Claim by Trustee to Money Paid.] — Execution
being levied upon the goods of a judgment
debtor, he paid the debts and costs direct to
the execution creditors, who thereupon with-
drew the sheriff. Within less than fourteen
days from this date the debtor had a receiving
order made against him : — Held, that the
execution had not been completed within the
meaning either of section 45 of the Bankruptcy
Act, 1883, or of section 11 of the Bankruptcy
Act, 1890, and that the execution creditors
must hand over to the trustee in the bank-
ruptcy the money so paid to them. Jenkins,
In re; Trustee, ex parte (90 L. T. 65;
20 Times L. R. 187), distinguished. Pollock
and Pendle, In re; Wilson d Mathieson, Lim.,
ex parte f87 L. T. 238), discussed. Godding,
In re; Partridge, ex parte, 83 L. J. K.B. 1222;
[1914] 2 K.B. 70; 110 L. T. 207; 21 Manson,
137; 58 S. J. 221— Horridge, J.
VII. PROTECTED TRANSACTIONS.
See also Vol. II. 974, 2031.
Assignment by Debtor to his Solicitor of
Sum Due to Him from Commissioners of
Inland Revenue for the Purpose of Opposing
Bankruptcy Proceedings — Notice to Assignee
of Available Act of Bankruptcy — Adjudication
—Title of Trustee.]— On February 14, 1912,
J., against whom a bankruptcy petition had
been presented by W. and various judgments
had been obtained, requested T., his solicitor,
who had acted for him since September, 1911,
to oppose this petition and to act for him in
the other proceedings then pending. T., who
was owed a considerable sum for professional
services, declined to act unless the debtor pro-
vided funds for the purpose. Thereupon J.
gave T. a letter authorising the Commissioners
of Inland Revenue to pay T. a sum of
42Z. 15s. od. then due from them to J. This
letter T. immediately took to Somerset House,
but the money was not paid over to him till
March 20. T. acted for J. from February 14
till May 29, when the retainer was withdrawn,
and, by making payments amounting to
38L 17s. 2d., succeeded in getting two adjourn-
ments of W.'s petition and of a subsequent
petition by K. After May 29 J. employed
another solicitor, and, although W.'s petition
was dismissed, a receiving order was made
against J. on K.'s petition, and he was subse-
quently adjudicated bankrupt. E., the trustee
in J.'s bankruptcy, now applied for an order
that T. should pay over to him the sum of
42/. los. od. as being money received by him
with notice of an available act of bankruptcy.
It was admitted that T. had notice of an avail-
able act of bankruptcy when he received the
letter of authority from J. on February 14 : —
Held, that the money was paid by the debtor
to his solicitor for the purpose of opposing bank-
ruptcy proceedings and protecting the debtor's
estate, and that what the solicitor did was for
the benefit of the debtor's estate, and that he
was entitled to retain out of the sum of
42L 15s. 5d. the sum of 38L 17s. 2d. actually
expended, and that the trustee was only
entitled to the balance of 31. 18s. 3d. Sinclair,
In re: Payne, ex parte (15 Q.B. D. 616;
53 L. T. 767), followed. Johnson, In re ; Ellis,
ex parte, 111 L. T. 165 — Horridge, J.
Petition Dismissed — Receiving Order made
on Appeal — Relation Back of Order — Dealings
with Bankrupt in Interval — Interests of Third
117
BANKEUPTCY.
118
Parties Protected — Time between Receiving
Order and Adjudication.] — After the dismissal
of a bankruptcy petition against him a debtor
continued to carry on business, paid in sums
to his banking account, and drew cheques
against them. On appeal, three months later,
a receiving order was made and dated as of
the date when the petition was wrongly dis-
missed. The sums paid into the bank during
this period were claimed by the trustee for the
benefit of the creditors : — Held, that the receiv-
ing order was rightly antedated, but that the
rights of innocent third parties were not
affected thereby in regard to dealings with the
debtor between the date when the receiving
order ought to have been made and the date
when it was in fact made. Teale. In re;
Blackburn, ex parte. 81 L. J. K.B. 1243;
[1912] 2 K.B. 367 ; 106 L. T. 893 ; 19 Manson,
327 ; 56 S. J. 553; 28 T. L. R. 415— D.
Semble, the doctrine of Cohen v. Mitchell
(59 L. J. Q.B. 409; 25 Q.B. D. 262) does not
apply to transactions between receiving order
and adjudication. Montague, In re; Ward,
ex parte (76 L. T. 203; 4 Manson, 1), discussed
and explained. lb.
Mortgage — Trustees of Settlement — Bank-
ruptcy of Settlor — Bona Fide Transaction
without Notice — Covenant by Trustees, "as
such trustees but not otherwise," to Repay
Principal — Effect of Covenant.] — By a settle-
ment made in 1903 on the marriage of E., a
sum of 200,OOOL, charged on his share in his
father's residuary estate, was settled on trusts
for E. and his wife and the issue of the
marriage, with an ultimate trust for E. The
settlement contained a power to the trustees
to apply any part of the trust fund on R.'s
request in writing in paying debts incurred by
him, for which purpose they were to have full
power of sale or mortgage. On November 18.
1906, E. committed an act of bankruptcy, and
on December 18 E. made a request in writing
to the trustees, in pursuance of which they
applied to the plaintiff for a loan to pay off
E.'s debts. The plaintiff advanced SOOf., to
secure which a mortgage dated February 19,
1907, was executed, and by it the trustees,
" as such trustees but not otherwise," cove-
nanted to pay the 800L with interest, and they
assigned to the plaintiff the property subject
to the settlement of 1903 in exercise of the
power contained in it. On January 16. 1907.
a receiving order was made against E., and
in April, 1907, he was adjudicated bankrupt.
In an action by the plaintiff to enforce the
mortgage, — Held, first, that the request by
E. to the trustees in December, 1906, before
the date of the receiving order, was a bona fide
transaction without notice within section 49
of the Bankruptcy Act, 1883, and that the
mortgage made in pursuance of it was valid
and effectual, though made after the date of
the receiving order; secondly, that the words
in the covenant, " as such trustees but not
otherwise," did not protect the trustees from
liability; and thirdly, that the plaintiff was
entitled to judgment. Robinson, In re; Gant
V. Hobbs, 28 T. L. E. 121— Warrington, J.
Gift for Special Purpose — No "transfer of
property" to Donee — Purchaser for Value.] —
A bankrupt within two years of his bank-
ruptcy, in order to assist his nephew to obtain
a lease of a public house, purchased a clock and
had it fixed on to the public house. The lessors
of the public house, in consideration of the
clock being afSxed to the premises as landlord's
fixtures, granted a lease of the premises to the
nephew at a reduced rent. The trustee in
bankruptcy claimed the clock or its value as a
gift to the nephew constituting a voluntary
settlement within section 47 of the Bankruptcy
Act, 1883 -.—Held, that the clock having been
transferred to the lessors for value could not be
claimed by the trustee ; that there was no gift
of the clock as a chattel to the nephew ; that
the reduction of rent did not amount to a reten-
tion of any property in the clock by the
nephew, and that its value could not there-
fore be claimed by the trustee. Branson, In
re; Moore, ex parte; Trustee v. Branson,
83 L. J. K.B. 1673; [1914] 3 K.B. 1086;
111 L. T. 741; 21 Manson, 229; 30 T. L. E.
604— C.A.
YIII. DISCLAIMEE.
See also Vol. II. 1009, 2037.
Leasehold Properties in Belgium and
Berlin — Service of Notices in Country in Occu-
pation of Enemy.] — Where a trustee in bank-
ruptcy was desirous of disclaiming leasehold
properties in places in Belgium in the occupa-
tion of alien enemies and in Berlin in the
enemy's country, and applied for directions as
to service therein of notices of intention to
disclaim, — Held, that the notices might be
served by sending them by ordinary post to the
last known addresses of the respective landlords
and giving them twenty-eight days' notice
within which to require the matter to be
brought before the Court. Curzon, In re ;
Trustee, ex parte, 84 L. J. K.B. 1000; [1915]
H. B. E. 77 ; 59 S. J. 430 ; 31 T. L. E. 374
— Horridge, J.
C. OFFICIAL RECEIVER.
See also Vol. II. 1038, 2040.
Costs — Official Receiver — Receiving Order
against Firm — Partner — Unsuccessful Appli-
cation for Adjudication.] — The official receiver
is under no statutory obligation to apply for an
adjudication in bankruptcy, and the Court has
jurisdiction therefore to order him to pay the
costs of an unsuccessful application, although
in making the application he was not guilty
of any misconduct and did not exceed his
powers. Williams it Co., In re; Official
Receiver, ex parte, 82 L. J. K.B. 459; [1913]
2 K.B. 88; 108 L. T. 585; 20 Manson, 21;
57 S. J. 285; 29 T. L. E. 243— C.A.
A receiving order was made against a firm
in the firm name, and, believing M. to be a
partner, the official receiver applied for his
adjudication. There was a serious conflict of
evidence, but ultimately M. was held not to be
a partner, and the application was dismissed :
— Held, that it was within the jurisdiction of
the Court to order the official receiver to pay
the costs personally in the first instance, and
119
BANKRUPTCY.
120
that the Registrar had rightly exercised his
discretion in ordering him to do so. Tweddle
rf- Co., hi re (80 L. J. K.B. 20; [1910] 2 K.B.
697), applied. 7b.
Motion — Consent of Official Receiver in
Writing.] — Although not so prescribed by the
Kules. it is desirable that the consent of the
official receiver to the use of his name by a
third party in launching a bankruptcy motion
should be in writing. Fitzgerald, In re
{No. 1), 112 L. T. 86— Horridge, J.
D. THE TRUSTEE.
See also Vol. II. 11141, 2041.
Resolution for Appointment of.] — In calcu-
lating a quorum of creditors present at a first
meeting of creditors only those who have
lodged proofs can be calculated ; consequently,
if there is only one creditor present who has
lodged a proof he forms a quorum, and can
carry a resolution for the appointment of the
trustee. Thomas, In re; Warner, ex parte,
55 S. J. 482— Phillimore, J.
Sale of Bankrupt's Business to a Private
Company — Company Promoted by the Trustee
and Committee of Inspection — Sanction of the
Court.] — The trustee in bankruptcy niay, with
the leave of the Court, sell the bankrupt's busi-
ness to a private company, notwithstanding
that such company has been promoted by the
trustee and the committee of inspection, and
that such persons are interested in such com-
pany as shareholders or directors or officers of
the companv. Spink, In re; Slater, ex parte
(No. 1), 108 L. T. 572; 57 S. J. 445;
29 T. L. E. 420— Phillimore, J.
Trustee Carrying on Bankrupt's Business —
Goods Supplied to the Business by Firms in
which a Member of the Committee of Inspec-
tion was a Partner — Payments out of the
Estate — Sanction of Court.] — Where the
trustee in bankruptcy is carrying on the busi-
ness of the bankrupt and orders goods from
firms with which a member of the committee
of inspection is connected, although this fact
was not known to the trustee at the time
when such orders were given and executed, the
Court will sanction the payment by the trustee
out of the bankrupt's estate of the cost price
of goods so supplied. Spink, In re; Slater,
ex parte (No. 2), 108 L. T. 811— Phillimore, J.
Proceedings by Trustee in Bankruptcy — No
Sanction of Committee of Inspection — No
Defence to Action.] — The obtaining of the con-
sent of tlie committee of inspection to the
taking of proceedings by a trustee in bank-
ruptcy which is required by section 22, sub-
section 9, and section 57 of the Bankruptcy
Act, 1883, and section 15, sub-section 3 of the
Bankruptcy Act, 1890, is merely a provision
for the protection of the estate, and is not one
which the respondent or defendant in any pro-
ceedings by the trustee is entitled to avail
himself of in answer to those proceedings.
Lee V. Sangster (26 L. J. C.P. 151; 2 C. B.
(n.s.) 1) and Angerstein, Ex parte; Anger-
stein, in re (43 L. J. Bk. 131; L. R. 9 Ch.
479), applied. Branson, In re; Trustee, ex
parte, 83 L. J. K.B. 1316; [1914] 2 K.B.
701; 110 L. T. 940; 21 Manson, 160; 58 S. J.
416 — Horridge, J.
Default of Trustee — Improper Retention of
Money — Statutory Interest — Non-payment of
Interest — Fidelity Bond — "Loss or damage"
to Estate — Loss by " Default " of Trustee —
Liability of Surety.] — Non-payment by a
trustee in bankruptcy of the interest at 20 per
cent, per annum imposed by section 74, sub-
section 6 of the Bankruptcy Act, 1883, upon a
trustee who improperly retains for more than
ten days a sum exceeding 50/., is not a loss
or damage to the estate of the bankrupt by
the default of the trustee within the meaning
of a bond given by the trustee and his surety
for the due performance of his duties by the
trustee, conditioned to be avoided if the surety
should make good any such loss or damage
occasioned by any such default. Board of
Trade v. Employers' Liability Assurance Cor-
poration, 79 L. J. K.B. 1001; [1910] 2 K.B.
649; 102 L. T. 850; 17 Manson, 273; 54 S. J.
581; 26 T. L. E. 511— C. A.
Right to Costs Incurred with Sanction of
Committee — Proofs of Majority of Creditors
and Committee Expunged — Annulment of
Adjudication.] — A trustee who has been up-
pointed by creditors and permitted to incur
costs by a committee of inspection, whose
proofs have subsequently been expunged, with
the result that the adjudication has been
annulled and a new trustee appointed, is, in
the absence of fraud on his part, entitled to
have such costs out of the estate. Jones, In
re; Goatly, ex parte, 56 S. J. 17 — Philli-
more, J.
Committee of Inspection.1 — A creditor is
qualified for appointment to the committee of
inspection by section 5 of the Bankruptcy Act,
1890, even before he has tendered a proof. lb.
Leave to Use Trustee's Name — Indemnity.]
— Where a secured creditor, who relies on his
security, wishes to exercise his power of sale
and to enforce a contract made by the bank-
rupt, and applies to the trustee in bankruptcy
for the use of his name, he must give a full
and proper indemnity, and an indemnity
limited to assets received by the creditor as
receiver and manager is not wide enough.
Grenfell, In re; Pleyider, ex parte, [1915]
H. B. R. 74— Horridge, J.
Taxation — New Trustee — Taxation of
Trustee's Solicitor's Bill of Costs without
Notice to New Trustee — Allocatur Signed —
Re-taxation.] — " The trustee," who under
rule 120 of the Bankruptcy Rules, 1886 and
1890, is entitled to not less than seven days'
notice of the appointment to tax, is the person
who is trustee at the time when the taxation
takes place ; so that where a new trustee in
bankruptcy had been appointed and the soli-
citor to the original trustee did not give him
notice of the appointment to tax the solicitor's
bill of costs, and tlie taxation proceeded in his
absence and the allocatur was signed, a re-
121
BANKRUPTCY.
122
taxation was ordered, and in the meantime the
allocatur was suspended. Smith, In re;
Wilson, ex parte, 80 L. J. K.B. 16; [1910]
2 K.B. 346; 102 L. T. 861; 17 Manson, 290;
26 T. L. R. 492— Phillimore, J.
E. THE BANKRUPT.
See also Vol. II. 1095, 2016.
Insolvent Traders — Proposal to Transfer
Business to Private Company — Debentures in
Satisfaction of Debts — Restriction on Deben-
tures— Approval of Creditors — Valuable Con-
sideration— Bona Fides — Defeating or Delay-
ing Creditors — Fraudulent Conveyance — Act of
Bankruptcy.] — An assignment of their busi-
ness assets to a private company by insolvent
traders is not void under the statute 13 Eliz.
c. 5, if the assignment is for valuable con-
sideration, and is not in any way tainted by
fraud. Where, however, the object and effect
of the transaction is to enable the insolvent
traders to carry on their business without
interruption by creditors, and where the prin-
cipal consideration for the assignment consists
of debentures, which are not available as
assets for creditors generally, but are handed
to specific creditors, with a restriction against
their being enforced during a term of years ;
then the assignment is void, as calculated to
" defeat or delay creditors," and is an act of
bankruptcy within the meaning of the Bank-
ruptcy Act, 1883, s. 4, sub-s. 1 (b). David d
Johnson, In re; Whinney, ex parte, 83 L. J.
K.B. 1173; [1914] 2 K.B. 694; 110 L. T. 942;
21 Manson, 148; 58 S. J. 340; 30 T. L. E.
366 — Horridge, J.
Payment by Cheque on Eve of Bankruptcy-
Cheque Given in Substitution for Former Un-
cashed Cheque.] — 0. acted as agent for W. in
the selling of cattle. On January 30 0. sent
to W. in England a cheque for the proceeds of
certain sales, which cheque W. omitted to
cash, and he came to Ireland leaving the un-
cashed cheque in England. On February 4 W.
met 0., who informed him of his insolvency,
and at W.'s request O. gave him a cheque for
the same amount and bearing the same date
as the former, and in substitution therefor.
This cheque W. immediately cashed. Earlier
that day 0. had instructed his solicitor to file
a petition in arrangement on his behalf, and
the petition was filed later in the same day
and protection granted : — Held, that the
giving of the second cheque did not amount
to a fraudulent preference of W. under
section 53 of the Bankruptcy (Ireland) Amend-
ment Act, 1872. Oliver, In re, [1914] 2 Ir. E.
356— C. A.
Innocent Receipt — Misleading Representa-
tion — Estoppel.] — Owing to tlie doctrine of
relation back that is formulated in section 43
of the Bankruptcy Act, 1883, by which the
property of a bankrupt becomes the property
of the trustee in liis bankruptcy as from the
date of committal of the act of bankjruptcy
on wliich the receiving order is founded, it is
impossible for the trustee to be prejudiced in
any way whatever in dealing with the bank-
rupt's property by any representation concern-
ing the property made by the bankrupt himself
after the act of bankruptcy, even though such
representation might have estopped the bank-
rupt himself from dealing witii the property in
any particular fashion. Where, accordingly,
a bankrupt makes a preferential payment to
one of his creditors on the representation that
the payment is really being made by some
third person, and where the creditor believes
in and acts on the representation, the trustee
in bankruptcy will not be estopped from re-
covering the money thus paid on behalf of
the bankrupt's estate. Ashtvell, In re;
Salaman, ex parte, 81 L. J. K.B. 360; [1912]
1 K.B. 390; 106 L. T. 190; 19 Manson, 49;
56 S. J. 189; 28 T. L. E. 166— Phillimore, J.
Return of Goods to Creditor — Evidence of
other Acts of Fraudulent Preference — Admissi-
bility.]— A debtor returned goods to the value
of 1,808L to a creditor on March 22, 1912, the
debtor being to his own knowledge insolvent
at that date. No threats of legal proceedings
were made by the creditor. On May 29 a
receiving order was made against the debtor
on a creditor's petition, based on an act of
bankruptcy committed on May 2. The trustee
in bankruptcy claimed the return of these
goods or the payment of 1,808Z. on the ground
that the transaction was a fraudulent prefer-
ence. In support of the application evidence
was tendered of other acts of fraudulent prefer-
ence by the debtor shortly before and shortly
after the transaction in question, to shew the
intent of the debtor : — Held, that the trans-
action was fraudulent, and further, that the
evidence of other acts of fraudulent preference
was admissible. Ramsay, In re; Deacon, ex
parte, 82 L. J. K.B. 526; [1913] 2 K.B. 80;
108 L. T. 495; 20 Manson, 15; 29 T. L. E.
225— Phillimore, J.
Post-nuptial Settlement — Recital of Ante-
nuptial Agreement — Intention to Defeat or
Delay Creditors.] — A recital in a post-nuptial
deed of settlement that the settlement is made
in pursuance of a parol ante-nuptial agreement
is a memorandum in writing sufficient to
satisfy the Statute of Frauds ; but it does not
dispense with the necessity of proving that the
recited ante-nuptial agreement was actually
made. Validity of a post-nuptial settlement
under 13 Eliz. c. 5, and section 47 of the
Bankruptcy Act, 1883, considered. Gillespie,
In re; Knapman v. Gillespie, 20 Manson, 311
— Horridge, J.
Agreement by Undischarged Bankrupt to
Pay Debt Incurred Prior to Bankruptcy —
Validity.] — The plaintiff recovered judgment
against the defendant for 913Z. lis., and sub-
sequently a receiving order was made against
the defendant, and he was adjudicated bank-
rupt. No part of the 913Z. lis. had been paid,
but the plaintiff lodged no proof in the bank-
ruptcy. While the defendant was still undis-
charged, the plaintiff lent 15/. to the defendant
in consideration of a promise by the defen-
dant to pay what he owed prior to the receiving
order just as if such receiving order had not
been made. In an action by the plaintiff
against the defendant to recover the 9131. lis.
123
BANKKUPTCY,
124
it was admitted that no dividend could be paid
by the defendant's state : — Held, that the con-
tract was valid, and that therefore the plaintiff
was entitled to recover. Wild v. Tucker,
83 L. J. K.B. 1410; [1914] 3 K.B. 36;
111 L. T. 250; 21 Manson, 181; 30 T. L. E.
507— Atkin, J.
Undischarged Bankrupt — Proceeding
against Trustee — Maintenance.] — An undis-
charged bankrupt is not entitled to bring an
action for damages for maintenance in respect
of proceedings brought against his trustee in
bankruptcy. Bottomley v. Bell, 59 S. J. 703;
31 T. L. E. 591— C. A.
Arrest of Debtor— High Bailiff's Man's Fee
—Mileage— Scale of Fees.]— Under Table C
of the Scale of Fees and Percentages under the
Bankruptcy Acts, which prescribes 5d. per
mile for the high bailiff's man travelling " to
execute a warrant of or order of commit-
ment," he is entitled to mileage for the whole
journey up to delivery of the debtor to prison.
Cropley, In re; Fox, ex parte, 80 L. J. K.B.
822; [1911] 2 K.B. 309; 104 L. T. 720;
18 Manson, 119; 27 T. L. E. 391— Philli-
more, J.
F. JURISDICTION AND COURTS.
See also Vol. II. 1169, 2052.
Hearing of Matter not Arising out of the
Bankruptcy.] — Where a dispute has arisen in
respect of a title on a contract for the sale of a
lease, the matter would, as a general rule, be
decided in the Chancery Division on a vendor
.md purchaser summons, but where the estate
of the vendor has subsequently become vested
in a trustee in bankruptcy a Judge of the
King's Bench Division sitting in Bankruptcy
may, for the convenience of the parties and
with their consent, hear the application.
Martin, In re; Dixon, ex parte, 106 L. T.
381— Phillimore, J.
Administration — Probable Insolvency of
Estate — Application to Transfer Proceedings
from the Chancery Division to the Court of
Bankruptcy.] — Where an administration order
had been made in the Chancery Division on the
application of a creditor of a testator, and the
advertisements had been issued stating that
creditors' claims must be sent in by a certain
day, and a date had been fixed for adjudicat-
ing on them, and where the solicitors for the
executrix had written stating that so many
claims had reached them that they did not
know whether there would be sufficient to pay
all the creditors in full, on an application
made for the prcKeedings to be transferred to
the Bankruptcy Court, under section 130, sub-
section 3 of the Bankruptcy Act, 1914, — Held,
that there was not sufficient evidence to satisfy
the Court that the estate was insufficient to
pay its debts, and that, however that might
he, there were no such considerations of con-
venience, delay, or expense as would justify
the Court in making the order for transfer.
York, In re; Atkinson v. Poioell (56 L. J.
Ch. 552; 36 Ch. D. 233), and Kenward, In re;
Hammond v. Bade (94 L. T. 277), dis-
tinguished. Hay, In re; Stanley Gibbons,
Lim. V. Haij, 84 L. J. Ch. 821; [1915] 2 Ch.
198; [1915] H. B. E. 165; 59 S. J. 680—
Sargant, J.
Qucere, whether an order for transfer under
section 130, sub-section 3 of the Bankruptcy
Act, 1914, can be made after judgment in an
administration action. lb.
Bankruptcy Order of County Court Judge
for Payment of Money — Action in High Court
of Order.] — A married woman executed a deed
of assignment of her property for the benefit
of her creditors, and appointed the defendant
trustee. A bankruptcy petition founded on
that act of bankruptcy was presented against
her in the County Court, and she was adjudi-
cated a bankrupt, and the official receiver
appointed trustee in the bankruptcy. An order
was obtained in the County Court that (the
official receiver having elected to treat the
defendant as a trespasser) the defendant
should pay to the official receiver the amount
which might be found due from him in respect
of the bankrupt's property and book debts.
The Eegistrar found that a sum of 178/.
12s. Id. was due from the defendant to the
official receiver, who thereupon instituted an
action in the High Court to recover that
amount from the defendant : — Held (Bray, J.,
dissenting), that the action was maintainable.
Savill V. Dalton, 84 L. J. K.B. 1583; [1915]
3 K.B. 174; 113 L. T. 477; [1915] H. B. E.
154; 59 S. J. 562— C.A.
County Court Order for Payment of Salary
— Default in Payment — Committal — Attach-
ment— Personal Service.] — The County Court
sitting in bankruptcy has the power to commit
for contempt, and it is therefore not neces-
sary, when proceeding against a bankrupt who
has disobeyed an order made in pursuance of
section 53 of the Bankruptcy Act, 1883, for the
payment to his trustee of a portion of his
salary, that the requirements of Order XXA''.
rule 58 of the County Court Eules, 1903 and
1904, which regulate the practice as to attach-
ment, shall have been complied with. Pickard,
In re; Official Receiver, ex parte, 81 L. J.
K.B. 330 ; [1912] 1 K.B. 397 ; 105 L. T. 832 ;
19 Manson, 58; 56 S. J. 144— D.
G. PRACTICE AND PROCEDURE.
I. PEACTICE.
1. Affidavits.
See also Vol. II. 1200, 2056.
The affidavit in form 12 in the Appendix to
the Bankruptcy Eules, 1886 to 1890, verifying
the truth of the statements in a bankruptcy
petition must be confined to the facts which
are true to the knowledge of the petitioner.
Debtor (No. 7 of 1910), In re; Petitioninq
Creditors, ex parte, 79 L. J. K.B. 1065 ; [1910]
2 K.B. 59; 102 L. T. 691; 17 Manson, 263;
54 S. J. 459 ; 26 T. L. E. 429— C.A.
125
BANKRUPTCY.
126
2. Amendment.
See also Vol. II. 1200, 205(3.
Receiving Order Varied by Striking out
Finding Complained of without Prejudice to
any Question.] — A receiving order was made
against a debtor on a petition alleging two acts
of bankruptcy, one of which was the giving
of a bill of sale. The grantee of the bill of
sale was not a party to the bankruptcy proceed-
ings in the County Court, and had no oppor-
tunity of disputing the allegation of fraud.
The grantee appealed to the Divisional Court
to annul the adjudication order and rescind
the receiving order and, if necessary, to dis-
miss the petition, or, alternatively, to amend
the orders by striking out all reference to the
particular act of bankruptcy complained of : —
Held, that the receiving order ought to be
amended by striking out all reference to the
finding complained of, and that the trustee
should within fourteen days give notice of
motion in the County Court to set aside the bill
of sale. Debtor, In re; Potvell, ex parte,
106 L. T. 344— D.
3. Appeal.
See also Vol. II. 1206, 2057.
Order of Court of Appeal Supporting
Receiving Order — No Leave to Appeal —
Appeal to House of Lords — "Bankruptcy
matters."] — Matters coming within the juris-
diction of the Bankruptcy Court are " bank-
ruptcy matters " within the meaning of
section 104, sub-section 2 (c.) of the Bank-
ruptcy Act, 1883, and therefore an appeal will
not lie to the House of Lords from an order
of the Court of Appeal, supporting a receiving
order, without the leave of the Court of Appeal.
Chatterton v. City of London Brewery Co.,
84 L. J. K.B. 667 ; [1915] A.C. 631 ; 112 L. T.
1005; [1915] H. B. E. 112; 59 S. J. 301—
H.L. (E.)
From County Court — Money or Money's
Worth Involved not Exceeding 50/. — Leave to
Appeal — Appeal from Part of Order — Property
Involved in Proceedings as a Whole — Costs.]
— Kulc 120 (1/ [rule 1 of 1905] of the Bank-
ruptcy Eules, 1886 to 1914, which provides that
no appeal shall be brought, without the leave of
the Court, or of the Court of Appeal, from any
order relating to property when it is apparent
from the proceedings that the money or
money's worth involved does not exceed 50Z.,
means, first, to exclude costs, which do not
come into consideration in the amount
involved; and secondly, that the money or
money's worth involved in the appeal does not
exceed 501. ; and not that the same did not
exceed 501. when the proceedings were
originally taken in the County Court. In order
to ascertain the amount involved in the appeal
the Court is entitled to look at all the proceed-
ings. Arnold, In re; Hext, ex parte, 84 L. J.
K.B. 110; [1914] 3 K.B. 1078; [1915]
H. B. R. 11; 21 Hanson, 319; 59 S. J. 9;
30 T. L. R. 691— C.A.
Ihe occupier of a farm was adjudicated a
bankrupt. He had sold the stock and effects.
The official receiver, as trustee in the bank-
ruptcy, applied in the County Court for a
declaration that the effects, which on a sale
by the purchaser had realised upwards of 126Z..
were in the order and disposition of the
bankrupt, and that 13/. odd, part of that sum
which had been paid to the purchaser, was a
fraudulent preference. The County Court
Judge refused the motion so far as it related
to the question of order and disposition, but
he declared that the payment of the 13/. was
a fraudulent preference, and ordered the pur-
chaser to pay the costs, which with the 13/.
exceeded 50/. The purchaser, without obtain-
ing leave, appealed from the part of the order
directing payment of the 13/., and the Divi-
sional Court (Horridge, J., and Atkin, J.)
overruled a preliminary objf^ction by the official
receiver that, under rule 129 (1) of the Bank-
ruptcy Rules, 1886 to 1914, leave to appeal
was necessary, and allowed the appeal : — Held,
reversing the Divisional Court, that, as the
value of the property involved in the only part
of the order under appeal did not exceed 50/.
there could be no appeal without leave, and
that in dealing with that question the Court
could not take the costs into consideration.
Everson, In re; Official Receiver, ex parte
(74 L. J. K.B. 38; [1904] 2 K.B. 619),
distinguished. lb.
Order of Divisional Court Granting Exten-
sion of Time for Appealing — Not Subject to
Appeal.] — Section 1, sub-section 1 (a) of the
Judicature (Procedure) Act, 1894, which enacts
that no appeal shall lie from an order allowing
an extension of time for appealing from a
judgment or order, is perfectly general in its
terms, and applies to an appeal against an
order of the Divisional Court, of which the
Judge to whom bankruptcy matters are
assigned is a member, granting an extension
of time for appealing against an order in
Bankruptcy of a County Court, notwithstand-
ing section 104, sub-section 2 (6) of the
Bankruptcy Act, 1883, and section 2 of the
Bankruptcy Appeals (County Courts) Act, 1884.
Debtor (No. 20 of 1910), In re, 80 L. J. K.B.
508; [1911] 1 K.B. 841; 104 L. T. 233;
18 Hanson, 107— C.A.
Right to Appeal — Administration — "Person
aggrieved" — Debt Incurred since Death of
Debtor.] — A creditor who has taken out a
summons for administration of the estate of
a deceased person in the Chancery Division
is " aggrieved " by an order for the ad-
ministration of such estate in bankruptcy,
and has therefore a right to appeal against
such order under section 104 of the Bankruptcy
Act, 1883. Kitson, In re; Sugden cf Son.
Lim., ex parte, 80 L. J. K.B. 1147; [1911]
2 K.B. 109; 18 Hanson, 224; 55 S. J. 443— D.
A petition for the administration of the
estate of a deceased debtor in bankruptcy
under section 125 can only be presented by a
creditor whose debt was incurred during thf
life of the debtor. lb.
Appeal against Making of Receiving Order
— Stay of Proceedings — Official Receiver not
Served viith Notice of Appeal — Appeal Heard
de Bene Esse.] — Notice of ai)peal to the Court
of Appeal or to the Divisional Court in Bank-
127
BANKRUPTCY.
128
ruptcy against the making of a receiving order
must in every case, whether proceedings under
the order have been staj'ed or not, be served
upon the official receiver within the time limited
by the Rules for service on the petitioning
creditor. But in special circumstances the
Court may extend the time for appealing in
order that the official receiver may be served,
or may hear the appeal de bene esse, and if
necessary then adjourn the matter for a like
purpose. Sleatli. In re; Lotus Shoe Co., ex
parte, 109 L. T. 222— D.
Order for Administration in Bankruptcy —
" Person aggrieved."] — An administratrix
who will be put to expense in complying with
an order for administration in bankruptcy
under section 125, rule 278 of the Act is a
" person aggrieved " within the meaning of
section 104 of the Act. The apparent absence
of any available assets is not of necessity a
ground for refusing administration in bank-
ruptcy under section 125. Hashing, In re;
Hosking, ex parte, 106 L. T. 640— D.
4. Costs.
See also Vol. II. 1232, 2059.
Execution — Seizure under Fi. Fa. — Inter-
pleader— Sheriff's Costs — Sale by Leave of
Official Receiver — " Costs of the execution."]
The sheriff's costs of interpleader are not
" costs of the execution " within section 11 of
the Bankruptcy Act, 1890. Rogers, In re;
Sussex (Sheriff), ex parte, 80 L. J. K.B. 418;
[1911] 1 K.B. 641 : 103 L. T. 883; 18 Manson,
22; 55 S. J. 219; 27 T. L. E. 199— C.A.
Security for Costs — Nominal Plaintiff —
Action by Undischarged Bankrupt for Com-
mission— Personal Earnings of Bankrupt —
Earnings Necessary for Maintenance of Bank-
rupt— Intervention of Trustee.] — The plain-
tiif, an undischarged bankrupt, brought an
action against the defendants claiming a sum
of 60L alleged to be due to him on a commis-
sion note given by them to him during the
bankruptcy, by which, in consideration of his
obtaining for them a certain loan, they agreed
to pay liim that sum as commission. The
trustee in bankruptcy of the plaintiff wrote to
the defendants claiming any moneys that
might become payable to him. The defendants
made an application for an order that the
plaintiff should give security for the costs of
the action on the ground that he was a mere
nominal plaintiff suing for the benefit of his
trustee in bankruptcy. The evidence shewed
that for the year preceding the bringing of the
action the plaintiff's total earnings, including
the sum sued for, had not exceeded lOOZ. : —
Held, that the sum sued for was personal
earnings of the plaintiff necessary for his
maintenance within the exception which
excludes such earnings of a bankrupt from the
general rule that the property of the bankrupt
vests in the trustee in bankruptcy; and,
consequently, that the plaintiff was not a mere
nominal plaintiff, and should not be ordered to
give the security asked for. Affleck v. Ham-
mond, 81 L. J. K.B. 565; [1912] 3 K.B. 162;
106 L. T. 8; 19 Manson, 111— C.A.
Whether a trustee in bankruptcy who has
given notice of intervention can afterwards
withdraw it, qucere. lb.
Taxation of Costs of Trustee's Solicitors —
Right of Bankrupt to Attend — Authorisation
of Trustee to Employ Solicitor — Solicitor's
Retainer.] — A man was adjudicated bankrupt.
There was only one creditor. This creditor's
general proxy purported to appoint himself
committee of inspection, and as such committee
authorised the trustee to employ solicitors.
Under the Bankruptcy Act, 1883, s. 22, sub-s. 1,
a committee must not consist of less than
three persons; under section 22, sub-section 9,
if there is no committee the Board of Trade
have their powers; under section 57, sub-
section 3, the trustee may, with the permission
of the conmiittee, employ solicitors; under
section 73, sub-section 3, the taxing officer is
to satisfy himself that the employment of
solicitors has been duly sanctioned. The debt
was paid in full, and the bankruptcy annulled.
The trustee under the above authority, and
not under the authority of the Board of Trade,
employed solicitors, whose costs were taxed and
paid. The solicitors, although applied to by
the late bankrupt, gave him no information as
to costs until they had been taxed. The late
bankrupt thereupon applied to re-open the
taxation and for leave to attend. The taxing
officer refused the application. The Divisional
Court sent the matter back to him to be re-
opened : — Held, that the taxing officer had
jurisdiction in a proper case to allow a bankrupt
to attend taxation, and that this was such a
case ; and that the trustee had not been duly
authorised under the Bankruptcy Acts to retain
solicitors, and that the sums paid for costs
must be disallowed. Geiger, In re; Geiger,
ex parte. Williams v. Biddle, 84 L. J. K.B.
589: [1915] 1 K.B. 439; 112 L. T. 562; [1915]
H. B. R. 44; 59 S. J. 250— C.A.
5. Service of Petitions, Orders, and Other
Process.
See also Vol. II. 1260, 2063.
Petition — " Person carrying on business
under a partnership name."] — When a peti-
tion has been presented against a debtor who,
to the knowledge of the creditor, carries on
business alone under a partnership or trade
name, it nmst be served personally against the
debtor, and it is not sufficient to serve it upon
a person having at the time of service the
control or management of the business.
Patrick, In re ; Hall d Co., ex parte, 107 L. T.
624; 57 S. J. 9— D.
Committal for Disobedience to Order of
Court — Mode of Service of Order Disobeyed.]
— Where it is sought to commit a bankrupt for
disobedience to an order made under section 53
of the Bankruptcy Act, 1883, it is not necessary
that such order shall have been personally
served upon the bankrupt or indorsed with a
warning of the consequences of non-compliance
therewith. Pickard, In re; Official Receiver,
ex parte, 56 S. J. 144— D.
129
BANKKUPTCY.
130
6. Various Matters.
See also Vol. II. 1274, 2064.
Joint and Separate Estates— Intermixture
of Partnership — Consolidation.] — The Court
will not sanction a consolidation of the joint
and separate estates of bankrupt partners
merely because the estates are so intermixed
that the investigation of proofs and distin-
guishing claims against the joint and separate
estates may be attended with difficulty and
expense. Kriegel, In re; Trotman, ex parte
(68 L. T. 588; 10 Morrell, 99), followed.
Barker d Co., In re, 21 Hansen, 238—
Horridge, J.
II. EVIDENCE.
See also Vol. II. 127.5, 206-5.
Private Examination of Witness — Sum-
mons.]— The Court will not refuse to issue a
summons for the attendance of a witness for
examination by the trustee under section 27 of
the Bankruptcy Act, 1883, either upon the
ground that the bankrupt knows as much about
the matters to be enquired into as the witness,
or upon the ground that the witness is the
arbitrator under a contract entered into by
the bankrupt as to which the trustee wishes to
make enquiries. Macdonald, Deakin d' Jones,
In re; Trustee, ex parte, 58 S. J. 798 — D.
Service of Notice of Motion on Person to
be Examined — Special Circumstances.] — The
trustee claimed that certain money in the bank-
ing account of a stranger formed part of the
property of the bankrupt. In order to prevent
the stranger from dealing with the money, he
served notice of motion upon her, and obtained
an interim injunction before examining her
under section 27 : — Held, that the above facts
constituted such special circumstances as to
entitle the trustee to proceed with the examina-
tion of the respondent under section 27,
although he had already commenced proceed-
ings against her. Aarons, In re; Trustee, ex
parte. 111 L. T. 411 ; 58 S. J. 581— Horridge, J.
Notice of Intention to Read Private Exam-
ination of Party to Motion — Copy to be
Supplied to Other Side.] — Where on a notice
of motion notice is given of intention to read
against a party his deposition taken under
section 25 of the Bankruptcy Act, 1914, the
solicitor giving such notice ought to supply
the party against whom the deposition is to
be read with a copy thereof, on being paid
for it. It will then be for the taxing officer
to say whether such a copy was necessary.
Carill-Worsleij, In re; Trustee, ex parte,
84 L. J. K.B. 1414; [1915] 2 K.B. 534;
[1915] H. B. R. 190; 59 S. J. 428— Horridge,
J.
Public Examination — Evidence against
Third Parties.] — The public examination of a
bankrupt is not evidence against his trustee
in bankruptcy, at all events so far as it con-
sists of statements as to what the bankrupt
says or does after the commencement of the
bankruptcy. Bottomley, In re: Brougltam, ex
parte, 84 L. J. K.B. 1020; [1915] H. B. R.
75; 59 S. J. 366— Horridge, J.
Affidavit — Cross-examination.] — Where
notice is given of intention to cross-examine
on an affidavit, that affidavit cannot be read
in the absence of the deponent. The exhibits
to an affidavit ought to be served with it. lb.
Questions Tending to Incriminate —
Debtor Charged with Offence Abroad.] —
Where a debtor prior to the filing of his own
petition has been arrested in London on a
charge of robbery in Canada, and at his public
examination under section 17 of the Bank-
ruptcy Act, 1883, the official receiver put
questions to him to which he objected as tend-
ing to incriminate him in reference to the
offence with which he was charged, the debtor
was ordered to answer the questions. Ather-
ton, In re, 81 L. J. K.B. 791; [1912] 2 K.B.
251 ; 106 L. T. 641 ; 19 Hanson, 126 ; 56 S. J.
446; 28 T. L. R. 339— Phillimore, J.
Discovery of Debtor's Property — Order to
Produce for Inspection — Jurisdiction of
Registrar.] — The procedure of section 27 of
the Bankruptcy Act, 1883, is primarily in-
tended to apply to the case of a recalcitrant
witness, and is only one of the methods by
which the official receiver or trustee is enabled
to obtain discovery of the debtor's property.
Geiger, In re, 109 L. T. 224— D.
The Registrar has jurisdiction to order a
person to produce for the inspection of the
trustee all documents and papers relating to
the estate of the debtor. 7b.
Discovery and Interrogatories — Application
before Receiving Order.] — A petitioning credi-
tor, upon an application by him under rule 72
of the Bankruptcy Rules before a receiving
order has been made, cannot obtain an order
for discovery and interrogatories against the
debtor to enable the petitioner to prove the
allegations in the petition. X. Y., In re;
Haes, ex parte (71 L. J. K.B. 102; [1902]
1 K.B. 98), distinguished. Debtor {No. 7 of
1910), In re: Petitioning Creditors, ex parte,
79 L. J. K.B. 1065; [1910] 2 K.B. 59;
102 L. T. 691; 17 Hanson, 263; 54 S. J. 459;
26 T. L. R. 429— C.A.
Production of Documents — Custody.] —
Where a witness is summoned before the Court
for examination under section 27 of the Bank-
ruptcy Act, 1883, and required to produce
documents in his custody relating to the debtor,
his dealings or property, the Court has no
jurisdiction to order the witness to give up
such documents to the official receiver or
trustee for the purpose of removing them out
of the custody of the Court in order to take
copies of them. Ash, In re; Hatt, ex parte,
110 L. T. 48; 21 Hanson, 15; 58 S. J. 174;
30 T. L. R. 194— D.
H. DEEDS OF ARRANGEMENT.
See also Vol. II. 1406, 2027.
Resolution at Creditors* Meeting — Deed
Executed in Pursuance thereof — Absence of
131
BANKEUPTCY,
132
Communication to Creditors — Revocability.] —
A deed of assignment executed by a debtor
for the benefit of liis creditors is revocable
until the fact of its execution has been com-
municated to them. Until such communication
the trustee under the deed has no title to the
property comprised in it, as against an execu-
tion creditor of the assignor. Garrard v.
Lauderdale [Lord) (2 Euss. & M. 451) applied.
Ellis <f Co. V. Cross, 84 L. J. K.B. 1622;
[1915] 2 K.B. 654; 113 L. T. 503— D.
Alleged Verbal Assent to Deed by Landlord
— Subsequent Distress for Rent — Action by
Trustee for Illegal Distress." — A debtor made
a deed of assignment for the benefit of his
creditors generallj'. At the time he owed his
landlord, the defendant, two years' rent. The
defendant attended a meeting of creditors, and
was there informed by the plaintiff, the trustee
of the deed, that if he assented to the deed he
would receive six months' rent in full, and that
he could claim with the other creditors for the
balance. The deed, however, contained no
provision to this effect, and the other creditors
did not assent to this payment. The defen-
dant used certain words at the meeting which
the plaintiff alleged amounted to a verbal
assent to the deed. The defendant subse-
quently distrained for the two j^ears' rent
owing to him, and the plaintiff thereupon
brought an action against him claiming
damages for illegal distress. At the close of
the plaintiff's case the County Court Judge
found that the remark made by the defendant
did not amount to an assent to the deed, and
that it gave no cause of legal action. On
appeal by the plaintiff, — Held, first (Atkin, J.,
dubitante), that there was some evidence to
support that finding ; and secondly, that in any
event a new trial would be bound to end in
favour of the defendant, on the ground that
his assent to the deed, if any, was conditional
on his right to receive six months' rent in full,
and that he acquired no such right, and that
therefore a new trial ought not to be ordered.
Sier V. Bullen, 84 L. J. K.B. 1288; [1915]
H. B. R. 132: 113 L. T. 278— D.
Previous Bankruptcy and Receiving Order —
Composition and Discharge of Receiving Order
— Debts not Proved in Previous Bankruptcy —
Creditors Scheduled in Deed — Estoppel.^ — In
1910 a debtor had a receiving order in bank-
ruptcy made against him. He subsequently
paid a composition, and the receiving order
was discharged. A and B, who were creditors,
did not prove under the receiving order, and
did not receive the composition. In 1912 the
debtor, being again in difficulties, executed a
deed assigning property to a trustee on trust
to pay the creditors scheduled thereto their
debts, including A and B. The trustee declined
to pay A and B with the other scheduled
creditors on the ground that their debts were
barred by the discharge of the receiving order
and the payment of the composition, and that
they were in law not creditors at all : — Held,
that the trustee was bound to investigate the
claims and to pay only the real creditors under
the deed ; that there was no new consideration
which could be enforced against the debtor to
pay A and B ; and that the trustee was not
estopped by the deed from denying that A and
B were in fact creditors entitled to the benefit
of the deed. Lancaster v. Elce (31 L. J. Ch.
789; 31 Beav. 325) distinguished. Pilet's
Deed, In re; Toursier <{• Co., ex parte;
Berkeley's Executors, ex parte, 84 L. J. K.B.
2133; [1915] 3 K.B. 519; [1915] H. B. R.
149; 31 T. L. R. 558— D.
Execution by Attorney — Registration —
Affidavit by Attorney — Assent of Majority of
Creditors — Declaration of Invalidity of Deed —
Jurisdiction.' — By section 23 of the Deeds of
Arrangement Act, 1914, " Any application by
the trustee under a deed of arrangement,
which either is expressed to be or is in fact
for the benefit of the debtor's creditors
generally, or by the debtor or by any creditor
entitled to the benefit of such a deed of arrange-
ment, for the enforcement of the trusts or the
determination of questions under it, shall be
made to the Court having jurisdiction in
bankniptcy in the district in which the debtor
resided or carried on business at the date of
the execution of the deed." A debtor gave
his sister a power of attorney to execute a
deed of arrangement for the benefit of his
creditors generally and she executed it and
swore the affidavit in support. Afterwards
the debtor applied under section 23 of the
Deeds of Arrangement Act, 1914, to a County
Court having jurisdiction in bankruptcy for a
declaration that the deed was void on the
grounds, first, that under sections 1 to 5 of
the Act the deed should have been executed
and the affidavit sworn by the debtor person-
ally; secondly, that the power of attorney was
a deed of arrangement under section 1, sub-
section 2 (e) and not being registered was void ;
and thirdly, that the assent of the majority
of the creditors had not been obtained as
required by section 8. The Judge decided
against the debtor's contentions : — Held, that
as the application was neither for the enforce-
ment of the trusts of the deed nor for the
determination of questions under it, but was
for a declaration that there was no valid deed
under which an application could be made,
the above section gave the Court of Bankruptcy
no jurisdiction to entertain the application.
Decision of Divisional Court (32 T. L. E. 75)
affirmed on a different ground. Wilson, In re,
32 T. L. R. 86— C.A.
Non-registration of Deed — Scheduled Credi-
tors— Void Deed.] — By a deed of arrangement
expressed to be made between the debtor,
certain sureties, a trustee, and " the several
persons whose names and seals are hereunto
subscribed and affixed . . . being respectively
creditors of the debtor (who are hereinafter
called the creditors)," the debtor assigned
certain future property upon trust to pay the
debts of the creditors, in consideration of a
covenant not to sue the debtor during the life
of his mother. There was evidence shewing
that the deed was intended to benefit eighteen
only out of twenty-two creditors, and that, of
these eighteen, only thirteen executed the deed,
their names being scheduled to the deed : —
Held, that a deed in which the creditors are
described as in this case must be construed as
a deed for the benefit of creditors generally,
133
BAXKEUPTCY— BASTARDY.
134
and is therefore void if not registered. Allix,
In re; Trustee, ex parte, 83 L. J. K.B. 665;
[1914] 2 K.B. 77 ; 110 L. T. 592; 21 Hansen,
1; 58 S. J. 250— Horridge, J.
Construction of Deed — Admissibility of Evi-
dence.]— Seiuhle, If a deed is in form a deed
for the benefit of creditors generally, evidence
is not admissible to shew that it is in fact
intended for the benefit of particular creditors
only. lb.
General Furnishing and Upholstery Co. v.
Venn (32 L. J. Ex. 220; 2 H. & C. 153)
followed. Saumarez, In re; Salaman, ex
parte (76 L. J. K.B. 828; [1907] 2 K.B. 170),
explained and distinguished. lb.
BARRISTER-AT-LAW.
See also Vol II. 1409, 2072.
Obligations of Counsel in Appeals to House
of Lords.] — Observations by the Lord Chan-
cellor as to the obligation of counsel engaged
in appeal to House of Lords to attend the
House in priority to other Courts. Vacher v.
London Society of Compositors, 29 T. L. E.
73— H.L. (E.)
Counsel's Fees — Money Received by Solici-
tors from Lay Client — Attachment of Debt —
Garnishee Order — Fees not a Debt.] — Fees
owing to counsel are not debts and cannot be
sued for ; neither can money received by soli-
citors on account of such fees be sued for as
money had and received. Such fees cannot
therefore be attached or garnisheed even when
the money on account of them has been
received by the solicitors. The Court has
power to order its officers to make payments
which are honest and just, although such pay-
ments may not be recoverable either at law
or in equity as between litigant parties. The
decisions of the Court in Colquhoun, Ex parte;
Clift, in re (38 W. E. 688), James, Ex parte;
Condon, in re (43 L. J. Bk. 107 ; L. E. 9 Ch.
609), Rivett-Carnac, In re; Simmonds, ex
parte (55 L. J. Q.B. 74; 16 Q.B. D. 308),
Brown, In re; Dixon v. Brown (55 L. J. Ch.
556; 32 Ch. D. 597), and Tyler, In re; Official
Receiver, ex parte (76 L. J. K.B. 541; [1907]
1 K.B. 865), are based on this principle, on
which alone Hall, In re (2 Jur. N.S. 1076),
can be supported. Wells v. Wells, 83 L. J.
P. 81 ; [1914] P. 1.57 ; 111 L. T. 399 ; 58 S. J.
555; 30 T. L. E. 545— C. A.
BASTARDY.
See also Vol. II. 1430, 2073.
Application for Summons — Woman Married
at Date of Application — Order for Maintenance
of Child.] — A bastardy summons issued under
section 3 of the Bastardy Laws Amendment
Act, 1872, upon an application by the respon-
dent (then a single woman) against the
appellant could not be served owing to the
appellant having left the neighbourhood. He
subsequently returned, and the respondent
thereupon applied to the clerk to the Justices
to amend the date of hearing and to serve the
summons. At the date of this application the
respondent was a married woman living with
her husband. The summons, having been
altered and served on the appellant, came on
for hearing before the Justices, who made an
order against the appellant to contribute to the
maintenance of the respondent's bastard child :
— Held, that the alteration of the summons by
the clerk to the Justices was equivalent to the
issuing of a fresh summons, and that as the
respondent was a married woman at the date
of such alteration the Justices had no power
to make the order. Tozer v. Lake (4 C.P. D.
322) followed. Healey v. Wright, 81 L. J.
K.B. 961; [1912] 3 K.B. 249; 107 L. T. 413;
76 J. P. 367; 23 Cox C.C. 173; 28 T. L. E.
439— D.
Child Born in New South Wales — Jurisdic-
tion of Justices to make Affiliation Order.] —
An English woman went to Australia, and
was there delivered of a bastard child. She
returned to England, and applied within twelve
months from the birth of the child for an
affiliation order against the putative father : —
Held (Avory, J., dissenting), that under the
Poor Law Amendment Act, 1844, and the
Bastardy Laws Amendment Act, 1872, the
Justices had jurisdiction to make the order
upon the putative father notwithstanding that
the child was born out of England or Wales.
Reg. V. Blane (18 L. J. M.C. 216 ; 13 Q.B. 769)
discussed and distinguished. Rex v. Hum-
phreys; Ward, Ex parte, 84 L. J. K.B. 187:
[1914] 3 K.B. 1237; 111 L. T. 1110; 79 J. P.
66 ; 30 T. L. E. 698— D.
Right of Applicant to Re-hearing — Effect of
Applicant's Right of Appeal to Quarter
Sessions.] — Where a Court of summary juris-
diction has heard an application for an order
of affiliation, and refused to make any order on
the ground that the evidence of the mother was
not corroborated in some material particular,
the mother is not barred from making a second
application within the period limited by the
Bastardy Acts by any of the provisions of
section 37, sub-section 2 of the Criminal Justice
Administration Act. 1914. Reg. v. Machen
(18 L. J. M.C. 213; 14 Q.B. 74) explained.
McGregor v. Telford, 84 L. J. K.B. 1902;
[1915] 3 K.B. 237 ; 113 L. T. 84 ; 79 J. P. 485 ;
31 T. L. E. 512— D.
Corroboration of Evidence of Mother —
Evidence of Conduct — Conviction of having
had Unlawful Carnal Knowledge — Mode of
Proof of Conviction.]— On the hearing of a,
complaint preferred by the respondent against
the appellant under section 4 of the Bastardy
Laws Amendment Act. 1872. the only evidence
given before the Justices as corroborative of
the evidence of the respondent was that of a
witness who deposed as follows : that he was
present in the police Court when the appellant
135
BASTARDY— BILL OF EXCHANGE.
136
■was committed for trial on a charge of having
had unlawful carnal connection with the
respondent, she being under the age of sixteen
years ; that the appellant then gave evidence
which suggested that the respondent was a
fast girl ; that he (the witness) was also
present at the assizes when the appellant was
tried for the said offence ; that no suggestion
was then made by the defence that the respon-
dent was a fast girl, nor did the appellant
repeat the evidence on this point which he
had given in the police Court ; and that the
appellant was convicted of the said offence.
No certified copy of the conviction under
section 13 of the Evidence Act, 1851, was
produced : — Held, that the evidence as to the
conduct of the appellant was evidence which
the Justices were entitled to treat as corrobor-
ating the evidence of the respondent in some
material particular within the meaning of
section 4. Mash v. Darley, 83 L. J. K.B.
1740; [1914] 3 K.B. 1226: 111 L. T. 744;
79 J. P. 33; 24 Cox C.C. 414; 58 S. J. 652;
30 T. L. R. 585— C. A.
QuiBTe, whether the evidence of the convic-
tion itself was admissible. Qucere, whether
the conviction was sufficiently proved. lb.
Judgment of Divisional Court (88 L. J. K.B.
78; [1914] 1 K.B. 1) af&rnied on different
grounds. 76.
Enforcement of Affiliation Order by Guar-
dians when Mother is Living Abroad.] — The
mother of an illegitimate child, having
obtained an affiliation order upon the putative
father, allowed the child to become chargeable
to a union and went to reside permanently in
America. The putative father objected that
since the mother was alive, and of sound
mind, and not in any gaol or prison, nor
under sentence of transportation, she was the
only person who could enforce the order against
him, and that the guardians could not enforce
it in her absence : — Held, that section 7 of the
Bastardy Laws Amendment Act, 1872, em-
powered the guardians to enforce the order
against the putative father and recover the
weekly payments and arrears under it when
the mother was living abroad. Jones v.
Merthyr Tydfil Unio7i, 105 L. T. 203;
9 L. G. R. 767; 75 J. P. 390; 22 Cox C.C.
551— D.
BEER HOUSE.
See INTOXICATING LIQUORS.
BENEFICE.
See ECCLESIASTICAL LAW.
BENEFIT SOCIETY.
Building.] — See Building Society.
Friendly.] — See Friendly Society.
Industrial.] — See Industrial Society.
BETTING.
See GAMING.
BILL OF COSTS.
See SOLICITOR.
BILL OF EXCHANGE.
A. Form and Operation, 136.
B. Liabilities of Parties, 137.
C. Actions on, 138.
D. Cheques, 140.
A. FORM AND OPERATION.
See also Vol. II. 1462, 2077.
Unaccepted Bill — Purchase — Subsequent Ac-
ceptance — Action by Purchaser against
Acceptor — Holder in Due Course.] — The P. Co.
sold some turpentine to the defendants and in
respect of the purchase price drew upon them
a bill payable to the order of the P. Co.'s
bankers, to w^hom the P. Co. then handed the
bill. Subsequently the plaintiffs bought the
bill from agents of the P. Co.'s bankers. It
had not then been accepted by the defendants,
but it was eventually accepted by them uncon-
ditionally in the usual way. A dispute then
arose between the defendants and the P. Co.,
and the defendants refused to meet the bill.
The P. Co. thereupon requested the plaintiffs
to sue the defendants in their (the plaintiff's)
own name, and guaranteed the expenses and
agreed to pay the bill if the plaintiffs failed to
recover the amount from the defendants : —
Held, in an action brought by the plaintiffs
against the defendants on the bill, first, that
the bill was a complete bill when purchased
by the plaintiffs, though it had not then been
accepted, and that therefore the plaintiffs
were holders in due course; and secondly, that
the plaintiffs were not suing as trustees for the
P. Co., and that therefore the defendants were
not entitled to set up the same defences as
they would have been entitled to set up against
the P. Co., and consequently the plaintiffs
were entitled to recover. National Park Bank
137
BILL OF EXCHANGE.
138
V. Berggren .(• Co., HO L. T. 907 ; 19 Com. Cas.
234; 30 T. L. R. 387— Pickford , J.
Acceptance on Behalf of Limited Company
— Name of Company Repressed in Address of
Bill — "Ltd." for " Limited."]— It is a suffi-
cient compliance with, the requirements of
section 63 of the Companies (Consolidation)
Act, 1908, that in a bill of exchange addressed
to a limited company the company's name is
correctly stated in the address without being
also stated in the acceptance ; and the com- j
pany's name is correctly stated although the
abbreviation "Ltd." is used instead of the
complete word " Limited." Stacey d Co. v.
Wallis, 106 L. T. 544; 28 T. L. E. 209—
Scrutton, J.
B. LIABILITIES OF PAETIES.
See also Vol. II. 1595, 2085.
Husband and Wife Joint Makers of Note —
Wife Signing Note for Accommodation of
Husband — Accommodation Indorser — No
Knowledge by Indorser that Wife Signed to
Accommodate Husband — Liability of Wife.] —
A husband and wife were parties to a promis-
sory note as makers, and the husband's brother
was the payee who indorsed the note for the
accommodation, as he believed, of both hus-
band and wife. In fact, the wife only signed
the note for the accommodation of her husband.
The note having been dishonoured, — Held, that
the wife and the payee were co-sureties, and
that as between them the wife was only liable
for half the amount of the note. Godsell v.
Lloyd, 27 T. L. R. 383— Scrutton, J.
Joint and Several Promissory Note by Infant
and Father — Liability of Father.] — The plain-
tiff sued the defendants, father and son, on a
promissory note given in respect of a loan to
the son, who was under age when the money
was advanced to him. The father joined in
the note in order to facilitate the transaction,
understanding that the debt would be paid
when the son came of age. It appeared that
in all probability the plaintiff knew that the
son was under age : — Held, that the true
meaning of the transaction was that the father
acted as principal borrower, and therefore,
although by the Infants' Relief Act the son
was not liable, the father was liable as prin-
cipal. Wauthier v. Wilson, 28 T. L. R. 239—
C.A.
Indorser — Waiver of Statutory Requirement
as to Presentment and Notice of Dishonour —
Onus of Proof.] — A bill which had been in-
dorsed was not presented for payment at
maturity, nor was notice of dishonour given to
the indorser, as required by statute, to avoid
discharge of the indorser's liability. After the
bill was due a payment on account was made
by the indorser, under the erroneous belief, as
she alleged, that slie was not an indorser, but
a joint acceptor, and so liable in payment. In
an action for payment of the balance due under
the bill, — Held, that the presumption, arising
from the payment on account, that the indorser
had waived the statutory requirements, had
been rebutted by proof that that payment had
been made in error, and that in consequence of
the failure of the holder to observe these
requirements the indorser was freed from
liability. Mactavish's Judicial Factor v.
Michael's Trustees, [1912] S. C. 425— Ct. of
Sess.
Observations as to the presumptions and
the onus of proof with regard to waiver of
the statutory requirements. lb.
Bill Payable to Drawer's Order — Indorse-
ment by 'Way of Guarantee — Subsequent
Indorsement by Drawer — Irregular Bill —
Guarantee — Memorandum in Writing Signed
by Party to be Charged.] — The plamtiffs
agreed to supply goods to a company against
drafts accepted by the company and indorsed
personally by the two defendants, who were
directors of the company, by way of guarantee.
The plaintiffs accordingly drew a bill and sent
it to the company, who signed as acceptors.
The two defendants having thereupon signed
their names at the back, the bill was sent back
to the plaintiffs, who indorsed it by putting
their signature below that of the defendants.
The bill not having been met at maturity, the
plaintiffs sued the defendants as indorsers or
alternatively as guarantors : — Held, that, as
the plaintiffs had failed to make the bill a
complete and regular bill, they could not main-
tain their action against the defendants as
indorsers of the bill of exchange under sec-
tion 56 of the Bills of Exchange Act, 1882, nor
on the contract of guarantee, as there was no
note or memorandum in writing, signed by the
parties to be charged, sufficient to satisfy the
Statute of Frauds. Jenkins v. Comber
(67 L. J. Q.B. 780; [1898] 2 Q.B. 168)
approved and followed. Shaw v. Holland,
82 L. J. K.B. 592 ; [1913] 2 K.B. 15 ; 108 L. T.
543; IS Cora. Cas. 153; 29 T. L. R. 341— C.A.
C. ACTIONS ON.
See also Vol. II. 1651, 2088.
Promissory Note — Signature Obtained by
Duress — Action by Original Party to Instru-
ment— Burden of Proof.] — Section 30, sub-
section 2 of the Bills of Exchange Act, 1882,
provides that "if in an action on a bill it is
admitted or proved that the acceptance, issue
or subsequent negotiation of the bill is affected
with fraud, duress, or force and fear, or ille-
gality, the burden of proof is shifted, unless
and until the holder proves that, subsequent to
the alleged fraud or illegality, value has in
good faith been given for the bill " : — Held,
that the sub-section does not apply where the
holder of the negotiable instrument who brings
the action is the person to whom it was origin-
ally delivered and in whose hands it still re-
mains; the burden of proof in such a case not
being shifted from, but remaining on, the
defendant. Talbot v. Von Boris, 80 L. J. K.B.
661; [1911] 1 K.B. 854; 104 L. T. 524;
55 S. J. 290; 27 T. L. R. 266— C.A.
In an action on a joint and several promis-
sory note the defendant pleaded that her sig-
nature to the note had been obtained by duress
on the part of her husband. At the trial the
defendant gave evidence in support of duress,
and in cross-examination stated that she did
139
BILL OF EXCHANGE
140
not think that the plaintiff himself had any
knowledge of it ; but the plaintiff did not go
into the witness box, and there was no evidence
to negative knowledge on his part of the
duress : — Held, that the burden of proof lay on
the defendant, and was not under section 30,
sub-section 2 of the Bills of Exchange Act,
1882, shifted from her to the plaintiff, and that
the defendant was not entitled to succeed in
her defence. Ih.
Note given by Makers in Payment for
Goods — Signed by Indorser as Surety — Ad-
missibility of Oral Agreement that Surety was
not to be Liable if Goods not up to Sample —
Liability of Surety.] — -The defendant com-
pany bought certain leather goods from the
plaintiffs and gave the plaintiffs in payment
therefor a promissory note of which they were
the makers, and which the defendant D. at the
request of the plaintiffs indorsed as surety.
The plaintiffs delivered the goods to the
defendant company, who kept them. The
plaintiffs subsequently sued the defendant
company as the makers, and the defendant
D. as indorser of the promissory note.
The defendant company did not appear at the
trial, but the defendant D. pleaded that he
signed the note as surety, and proved an oral
agreement with the plaintiffs, contemporaneous
with the promissory note, that if the goods
when received by the defendant company
should not be equal to sample, he was not to
be called upon to pay the promissory note. He
also proved that the goods, were in fact not
equal to sample : — Held, that evidence of the
oral agreement relied upon by D. was not
admissible, as it was not an agreement sus-
pending the coming into force of the contract
contained in the promissory note, but was an
agreement in defeasance of that contract, and
that therefore the defendant D. was liable on
the promissory note. Hitchings and Coulthurst
Co. V. Northern Leather Co. of America.
83 L. J. K.B. 1819; [1914] 3 K.B. 907;
111 L. T. 1078; 20 Com. Cas. 25; 30 T. L. E.
688— Bailhache. J.
Date when Cause of Action Arises —
Calculation of the Six Years — Limit Expiring
on Sunday— Order LXIY. rule 3.]— The time
for payment of a pron.issory note, including
the days of grace, expired on Saturday, Sep-
tember 22, 1906. The writ in the action to
recover the amount due on the note was issued
on Monday, September 23, 1912 -.—Held, that
the action on the note was barred by the
Statute of Limitations, as the cause of action
was complete on the expiration of Septem-
ber 22, 1906, the day on which payment w'as
due, and the six years next after the cause
of such action, within which the action must
be brought in order to comply with the Limita-
tion Act, 1623, expired on Sundav, Septem-
ber 22, 1912. Held, further, that Order LXTV'.
rule 3 of the Rules of the Supreme Court,
which provides that, " Where the time for
doing any act or taking any proceeding expires
on a Sunday, or other day on which the offices
are closed, and by reason thereof such act or
proceedings cannot be done or taken on that
day, such act or proceeding shall, so far as
regards the time of doing or taking the same.
be held to be duly done or taken if done or
taken on tlie day on which the officss shall
next be open," has no effect on the operation
of the Statute of Limitations, and that there-
fore the writ, which was issued on Monday,
September 23, 1912, could not be considered as
having been issued on Sunday, September 22,
1912. Gelmini v. Moriggia, 82 L. J. K.B.
949; [1913] 2 K.B. 549; 109 L. T. 77;
29 T. L. R. 486— Channell, J.
D. CHEQUES.
See also Vol. II. 1674, 2090.
Consideration.] — In December, 1912, the
plaintiff lent to the defendant 1,500^ on the
security of a promissory note payable three
months after demand. In March, 1914, the
plaintiff became uneasy about his money and
saw the defendant, who promised to repay in
April. In the latter month the defendant gave
the plaintiff a post-dated cheque for l,500i.,the
plaintiff agreeing that during the currency of
the cheque he would not claim payment under
the note. When this cheque was presented it
was dishonoured : — Held, in an action on the
cheque, that the cheque was only a collateral
security and did not discharge the liability
under the note, that the plaintiff's agreement
was a consideration for the cheque, and that,
therefore, the plaintiff w^as entitled to recover.
Elkington v. Cooke-Hill, 30 T. L. R. 670—
Darling, J.
Signature in Blank — Clerk's Authority to
Fill in Name of Payee — Wrong Name Filled
in — Holder — No Value Given — Estoppel —
Action by Drawer against Holder.] — A person
who signs a blank cheque and then hands it
to a confidential clerk to fill in the name of the
payee is not estopped as against a holder of the
cheque who has not given value for it from
saying that it was wrongly filled up as regards
the name of the payee. In such circumstances,
if the holder has obtained payment of the
cheque from the bank on which it was drawn,
the drawer can recover back from the holder
the amount of the cheque. Paine v. Bevan,
110 L. T. 933; 30 T. L. R. 395— Bailhache, J.
Addition of Words "To be retained" —
Whether an "unconditional" Order.] — The
defendant gave to the plaintiffs a cheque for
100/., drawn by him upon his bankers and
payable to the plaintiffs. The cheque was
made out upon a sheet of blank paper, and
the defendant had written on the face of it
the words " To be retained." In an action
on the cheque the defendant gave evidence to
the effect that these words implied that the
cheque was not to be presented, and that, in
the event of a certain agreement between the
parties being approved by the defendant's
solicitors, the defendant was to exchange the
cheque for another of equal value in his
bankers' ordinary printed form : — Held, that
the words upon the cheque did not prevent
it from being an " unconditional " order in
writing within the meaning of section 3 of the
Bills of Exchange Act, 1882, inasmuch as they
did not render it conditional as regards the
bankers upon whom it was drawn. Robert d
141
BILL OF EXCHANGE.
142
Co. V. Marsh, 84 L. J. K.B. 388; [1915]
1 K.B. 42; 111 L. T. 1060; 30 T. L. E. 609
— C.A.
" Account payee only " — Customer — Negli-
gence.]— A person becomes a customer of a
bank when he goes to the bank with money
or a cheque and asks to have an account
opened in his name and the bank accepts the
money or cheque and is prepared to open an
account in the name of that person. When
the drawer of a cheque crosses it " Account
payee only " a bank is guilty of negligence
towards the drawer if without making any
enquiries it allows a person who is unknown
to them to open an account with it and collects
the money for it. Ladbroke it Co. v. Todd,
111 L. T. 43; 19 Com. Cas. 256; 30 T. L. R.
433— Bailhache, J.
Crossed Cheque — " A/c Payee " — Collection
by Bank for Customer — Negligence.] —
A cheque drawn in favour of " F. S. Hanson,
Esq., and others or Bearer," crossed with the
words "a/c payee," was collected by a bank
and credited to a customer, the bearer of the
cheque : — Held, that the bearer was not the
payee, and that the bank was negligent in not
making enquiry as to the circumstances in
which the customer was the bearer of the
cheque. House Property Co. v. London
County and Westminster Bank, 84 L. J. K.B.
1846; 31 T. L. R. 479— Eowlatt, J.
Procuration Signature — Effect of.] — A, a
manager in the service of the plaintiffs, who
were insurance brokers, gave cheques drawn
per pro the plaintiffs to the defendant in pay-
ment of his (A's) racing debts. A had autho-
rity to sign cheques per pro the plaintiffs for
the purposes of the latter's business : — Held,
that the plaintiffs were entitled to recover the
amount of the cheques from the defendant
inasmuch as the defendant must be taken to
have had notice that the cheques were signed
for purposes outside the plaintiffs' business and
that A had only power to draw cheques con-
fined to that business, and inasmuch as there
was no evidence that the plaintiffs had held
out A as having authority to draw the cheques
in question. M orison v. Kemp, 29 T. L. R.
70— Darling, J.
Addition of Words "Not negotiable" —
Notice of Limited Authority — Bank in Good
Faith Receiving Payment for Customer — Con-
version — Liability of Bank — Negligence —
Forgery — Ratification.] — A banker who col-
lects for a customer cheques which are the
property of another is prima facie liable to
the true owner for the conversion. The effect
of section 25 of the Bills of Exchange Act,
1882, which says that a signature per pro is
notice that the authority of the agent so signed
is limited, is that if the agent has exceeded
his authority the principal may refuse pay-
ment of the bill, and persons taking it do so
subject to this risk. Where, however, the bill
has once been paid, the transaction is com-
plete, and the section does not confer a right
to recover the proceeds. By section 82 of the
Bills of Exchange Act, 1882, a banker who
has collected a crossed cheque for a customer
whose title was defective is relieved from
liability provided that he acted in good faith
and without negligence. Therefore in the
case of a cheque signed per pro issued without
authority, but duly honoured by the bank
upon which it is drawn, section 25 does not
operate to deprive the collecting banker of the
protection given by section 82. Neither is
that protection affected by the addition of the
words " not negotiable," or " not negotiable,
a/c payee." Morison v. London County and
Westminster Bank, 83 L. J. K.B. 1202;
[1914] 3 K.B. 356; 111 L. T. 114; 19 Com.
Cas. 273; 58 S. J. 453; 30 T. L. R. 481— C.A.
A document cannot be a forgery in the hands
of one person and valid in those of another.
If it be genuine for one purpose it is genuine
for all. Ih.
"Not negotiable" — Payment into Cus-
tomer's Account — Customer not Payee —
Forged Indorsement — Liability of Bank.] — A
series of cheques crossed " Not negotiable "
and drawn in favour of a person other than the
customer were paid by the customer into his
banking account with the defendants, the
indorsements being forged : — Held, that the
fact that the cheques were crossed " Not
negotiable " and drawn in favour of a person
other than the customer did not impose an
obligation on the defendants to make enquiry
so as to make them negligent in receiving the
cheques and crediting their customer's account
therewith. Held, also, that the fact that some
of the cheques were signed " per pro " the
plaintiff merely operated as a notice that the
drawer of the cheques had a limited right to
sign them. Cruwplin v. London Joint Stock
Bank, 109 L. T. 856; 19 Com. Cas. 69;
30 T. L. R. 99— Pickford, J.
Payment of Crossed Cheque by Banker
not through Bank — Fraud of Agent.] — By sec-
tion 79 of the Bills of Exchange Act, 1882
(which is reproduced in a Singapore Ordi-
nance), " where the banker on whom a cheque
is drawn . . . pays a cheque crossed generally
otherwise than to a banker ... he is liable
to the true owner of the cheque for any loss
he may sustain owing to the cheque having
been so paid." The appellants' cashier had
for some time made a practice, instead of
receiving cash for cheques drawn on the respon-
dents, of obtaining cheques of corresponding
amounts drawn by them on another bank in
favour of the appellants or bearer and crossed
generally. The cashier misappropriated some
of these cheques, and paid the amounts to his
own account. The appellants sued the respon-
dents for the amount of these cheques : — Held,
that the handing over of fresh checjues drawn
by the respondents on another bank amounted
to payment of the cheques drawn on them,
but that the loss sustained was not owing to
the action of the respondents, but to the mis-
conduct of the appellants' cashier, and that
the respondents were not liable. Meyer v. Sze
Hai Tong Banking and Insurance Co.,
83 L. J. P.C. 103; [1913] A.C. 847;
109 L. T. 691: 57 8. J. 700— P.C.
Post-dated Cheque — Issue of Cheque Affected
vtfith Illegality — Value Given in Good Faith.]
143
BILL OF EXCHANGE— BILL OF SALE.
144
— To an action by the plaintiff to recover the
amount of two cheques drawn to self or order
and indorsed by the defendant the defendant
pleaded, first, that the cheques were originally
given for gaming and wagering transactions,
and so the burden of shewing that he was a
holder in due course was on the plaintiff ; and
secondly, that as the cheques were post-dated
they were not payable on demand and ought
to have been stamped as bills of exchange.
The plaintiff cashed the two cheques for one
H., who, the plaintiff knew, had been bank-
rupt about twelve months previously, and for
whom he had cashed several other cheques
within the previous few months, which cheques
had all been met. It was admitted that the
issue of the cheques in question was affected
with illegality : — Held, that the plaintiff was
entitled to recover, inasmuch as on the evi-
dence he had discharged the onus of proving
that subsequent to the illegality he had given
value in good faith for the cheques, and inas-
much as the two post-dated cheques became
cheques payable on demand when the due date
arrived and were therefore sufficiently stamped
as cheques. Robinson v. Benkel, 29 T. L. E.
475— Hor ridge, J.
Infant — Holder for Value — Action on
Cheque.] — The defendant, who was an infant
at the time, drew a cheque on a date prior to
July 29, 1913, making it payable to one Bell,
and post-dating it August 14. The cheque
was not given for necessaries. On July 29
the defendant came of age. On August 11
the plaintiff cashed the cheque for Bell, and
on August 14 presented it, but it was returned
marked "Account closed " : — Held, in an
action on the cheque, that the plaintiff could
not recover. Hutley v. Peacock, 30 T. L. R.
42— Scrutton, J.
Cheque Obtained by Duress in France —
Liability of Drawer.] — The plaintiffs, hotel
keepers in France, obtained from the defen-
dant, a young Englishman of twenty-two years
of age, who had been staying at the plaintiffs'
hotel, an English cheque payable in England,
by a threat of criminal proceedings in France
if it was not given, and a suggestion that
no such proceedings would be taken if the
cheque were given : — Held, that payment of
the cheque could not in these circumstances
be enforced in an English Court. Kaufman
V. Gerson (73 L. J. K.B. 320; [1904] 1 K.B.
591) applied. Societe des Hotels Reunis v.
Hawker, 29 T. L. E. 578— Scrutton, J.
See S. C. in C.A. on question of costs,
30 T. L. E. 423— C.A.
BILL OF SALE.
See also Vol. II. 1715, 209fi.
Registration — Occupation of Grantor —
Description — Baptist Minister — Director of
Public Companies.] — The grantor of a bill of
sale given in 1913 was described therein as a
Baptist minister, living at an address in Essex.
Until 1909 he had held a pastorate as a Baptist
minister near his residence, relinquishing it in
that year. Since then he had preached for fees
and visited the poor, but not in connection
with any particular church. His name was
still on a register of Baptist ministers. He
also carried on a business in London as pro-
moter and director of public companies : —
Held, that the grantor's occupation was not
sufficiently described within the Bills of Sale
Act, 1878, s. 10, sub-s. 2, and that the bill
of sale was therefore void. The definitions of
" occupation " by Kelly, C.B., and Martin, B.,
in Luckin v. Hamlyn (21 L. T. 366) explained.
Barron v. Potter; Potter v. Berrif, 84 L. J.
K.B. 2008; [1915] 3 K.B. 593; 59 S. J. 650
—C.A.
Decision of the Divisional Court (84 L. J.
K.B. 751) reversed. Ih.
Misdescription of Grantor's Occupation —
Gentleman of no Occupation — Partner in
Business — Bankruptcy of Grantor.] — The
grantor of a bill of sale was described therein
and in the affidavit filed on registration thereof
as a gentleman of no occupation. In fact at
the date of the bill of sale, November 3, 1913,
he was in partnership with another in a
business of soap manufacturers and agents : —
Held, that this description in the bill of sale
and affidavit was erroneous and misleading,
and that the bill of sale was void as against
the grantor's trustee in bankruptcy. Decision
of Atkin, J., in Barron v. Potter (84 L. J.
K.B. 751), and of the Court of Appeal (84 L. J.
K.B. 2008) applied and followed. Feast v.
Robinson (63 L. J. Ch. 321) not followed.
Boddington, In re; Salaman, ex parte, 84 L. J.
K.B. 2119; [1915] H. B. E. 183— Horridge, J.
Hire-purchase Agreement — Colourable
Transaction — Inference from Facts.] — S.
wished to buy some goods which were to be
offered for sale by auction. He approached
B., a money-lender, and asked for a loan to
enable him to do so. B. refused. Subse-
quently B. attended the sale and bought the
goods. A hire-purchase agreement, contain-
ing a licence to seize, was then entered into
between B. and S. in respect of the goods,
and the goods were delivered to S. An execu-
tion being levied against S., the goods were
seized by the execution creditors. B. put in
a claim. In interpleader proceedings in the
County Court the Judge held that the true
inference from the facts was that the trans-
action between B. and S. was merely a loan
upon the security of the hire-purchase agree-
ment, and that the hire-purchase agreement
was a bill of sale and void for want of regis-
tration, and therefore barred the claim. B.
appealed : — Held (per Lush, J.), that the
transaction between B. and S. was a bona fide
hire-purchase, and that the claim should have
been allowed. Per Atkin, J., that there was
evidence upon which the County Court Judge
could hold that the transaction was really a
loan by B. to S. upon the security of the hire-
purchase agreement and in barring the claim.
Decision of the County Court Judge affirmed.
MeUor's Trustees v. Maas d- Co. (71 L. J.
K.B. 26: [1902] 1 K.B. 137: in the Court of
Appeal, 72 L. J. K.B. 82; [1903] 1 K.B. 226;
in the House of Lords, sub nom. Maas v.
Pepper, 74 L. J. K.B. 452; [1905] A.C. 102),
discussed and applied. Jolnison V. Rees,
84 L. J. K.B. 1276; 113 L. T. 275— D.
145
BILL OF SALE.
146
Assignment — Yarying Original Bill of
Sale — Defeasance.] — By a bill of sale made
on August 15, 1913, the defendant M. assigned
her household furniture to a firm of money-
lenders for securing the repayment of 700Z.
and interest at the rate of 60 per cent, per
annum. On March 7, 1914, the money-lenders,
by indenture, declared to be supplemental to
the bill of sale, assigned to the claimant P.
the principal sum of 700/. secured on the bill
of sale, and the chattels and things included
therein. By an indenture of the same date
■which recited the above-mentioned deeds, and
that the parties M. and P. had agreed on the
interest for the future being at the rate of
27| per cent, per annimi, and not as men-
tioned in the bill of sale of August 15, 1913,
and that the repayment of the mortgage debt
should be made by instalments at regular
periods, M. agreed to pay off the principal
and interest as thereinbefore mentioned. The
original bill of sale was filed at the Central
Office in 1913, but the assignment and the
contemporaneous deed were refused registra-
tion, on the ground that the original bill of
sale was still in existence. The plaintiff in
the above action levied execution on the goods
comprised in the bill of sale, and in the inter-
pleader proceedings in the County Court
judgment was given against P., the claimant,
and in favour of the plaintiff, the execution
creditor. On appeal, — Held, that whether or
not the second deed, varying the terms of the
original bill of sale, was a defeasance within
section 10, sub-section 3 of the Bills of Sale
Act, 1878, the true terms were not in the form
required by section 9 of the Bills of Sale Act,
1882, as the original bill of sale no longer
expressed the true intent and meaning of the
parties thereto. Cornell v. Maij, 112 L. T.
1085— D.
Mortgage — Heirlooms Settled in Trust —
Equitable Chose in Action.] — Personal chattels
were given to trustees upon trust for a certain
tenant for life, and, after his death, upon
trust for his sons successively in tail male :
— Held, that the interest in the chattels of
the first tenant in tail male in remainder dur-
ing the lifetime of the tenant for life was an
equitable chose in action; and, accordingly,
that a mortgage of his interest in the chattels
by this tenant in tail did not require registra-
tion under section 8 of the Bills of Sale Act
(1878) Amendment Act, 1882, inasmuch as the
operation of that statute was limited to mort-
gages of " personal chattels " by section 3 of
the Bills of Sale Act, 1878, and inasmuch as
" personal chattels " were expressly defined
by section 4 of the same statute so as to ex-
clude choses in action. Tritton, In re; Single-
ton, ex parte (61 L. T. 301), applied. Thynne,
In re; Thynne v. Grey, 80 L. J. Ch. 205;
[1911] 1 Ch. 282; 104 L. T. 19; 18 Manson,
34— Neville, J.
Pledge of Goods— Warrant.]— A distil-
lery company gave, as security for advances,
warrants making the whiskey therein men-
tioned deliverable to the holder of such
warrant. The name of the holder was entered
in the books of the company opposite the
numbers and particulars of the casks of
whiskey, which still remained in the possession
of the company, and were dealt with by them.
When they sold the whiskey they cancelled the
warrant and erased the holder's name from
their books, and substituted another warrant
over other whiskey as security to the creditor :
— Held, that this transaction did not create a
valid pledge at common law, and, if it did, the
warrants were void as not being registered
under the Bills of Sale (Ireland) Act, 1879,
s. 4. Dublin City Distillery v. Doherty,
83 L. J. P.C. 265 ; [1914] A.C. 823; 111 L. T.
81; 58 S. J. 413— H.L. (Ir.)
"Consideration" — Sum Received by
Grantor under 30/. — Deduction of Costs of
Preparation of Deed — Validity.] — A bill of
sale was granted in consideration of the sum
of SOI. less the sum of 21. 2s. retained there-
out by the mortgagees with the consent of the
mortgagor and paid to the mortgagees' solicitor
towards the costs of the preparation of the
deed : — Held, that the bill of sale was not
void under section 12 of the Bills of Sale Act,
1882, inasmuch as the total consideration for
the bill was a sum not under 30L London
and Provinces Discount Co. v. Jones, 83 L. J.
K.B. 403; [1914] 1 K.B. 147; 109 L. T. 742;
21 Manson, 18; 58 S. J. 33; 30 T. L. E. 60
— D.
Contract — Goods Obtained by Fraud —
Necessaries — Liability of Infant.] — An action
was brought by the plaintiff to recover from
the defendant the price of certain furniture
and effects. The goods were transferred to
the defendant by an agreement containing a
licence to the plaintiff to resume possession of
the goods if the price was not paid on a certain
date. The defendant sold some of the goods
for a sum of 30/., and, with the plaintiff's
assent, transferred the remainder by bill of
sale as security for an advance of 100/. by the
grantee : — Held, that the agreement by which
the goods were transferred by the plaintiff to
the defendant was a bill of sale which was
governed by the Bills of Sale Act, 1878, and
not by the Bills of Sale Act, 1882, and was
not therefore void for not complying with the
requirements of the later Act. Stocks v.
Wilson, 82 L. J. K.B. 598; [1913] 2 K.B.
235; 108 L. T. 834; 20 Manson, 129;
29 T. L. R. 352— Lush, J.
Payment by Equal Instalments — Bargain
that Instalments should Include Interest —
Covenant for Payment of Interest on Unpaid
Instalment — Ambiguity.] — By a bill of sale
the grantor, in consideration of the sum of
30/. paid to the grantor by the grantee,
assigned unto the grantee the chattels com-
prised therein by way of security for the pay-
ment of the sum of 30/. and interest thereon
at the rate of lOd. in the pound per month.
And the grantor agreed that he would duly pay
to the grantee the principal sum aforesaid,
together with the interest then due, by monthly
payments of 2/., and that in default of pay-
ment of any instalment of the said principal
sum he would pay interest on such instalment
at the rate aforesaid from the date when the
same should become due until payment thereof.
By the bargain made between the parties
147
BILL OF SALE— BOUNDAEIES.
148
immediately before the giving of the bill of
sale the grantor was to pay instalments of
21. per month, including interest. In an
action brought by the grantor for a declara-
tion that the bill of sale was void on the
grounds that it did not set out the real bargain
between the parties, and that it was so
ambiguous as not to be in accordance with
the statutory form, — Held (Fletcher Moulton,
L.J., dissenting), that there was no ground
for avoiding the bill of sale. Rosefleld v.
Provincial Ujiion Bank, 79 L. J. K.B. 1150;
[1910] 2 K.B. 781; 103 L. T. 378;
17 Manson, 318— C.A.
Per Vaughan Williams, L.J., and Buckley,
L.J. : On the true construction of the bill of
sale the instalments were to consist partly of
principal and partly of interest, each instal-
ment of 21. going in the first place to pay the
interest due and the balance going towards
repayment of the principal. There was
nothing in Goldstrom v. Tallerman (56 L. J.
Q.B. 22: 18 O.B. D. 1) to prevent the Court
from so construing the bill of sale. The bill
of sale therefore was in accordance with the
real bargain between the parties, and it was
not void on the ground of being unintelligible.
lb.
Per Vaughan Williams, L.J. : The fact that
the bill of sale did not expressly state how
much of each instalment was to be appropri-
ated to principal and how much to interest did
not amount to an ambiguity such as would
entitle the grantor to have the bill of sale
declared void. lb.
Per Fletcher Moulton, L.J. : The bill of
sale was not in accordance with the real bar-
gain between the parties. For Goldstrom v.
Tallerman (supra) was a binding decision that
in a bill of sale in the statutory form, as this
bill of sale was, the instalments were instal-
ments of principal only. The existence of the
statutory form, however, did not prevent
parties from making provision for repayment
in other ways. lb.
Defeasance or Condition — Separate Docu-
ment.]— Prior to and as a condition of making
the advance, the grantee under a bill of sale
given as a security for money obtained a letter
from the grantor stating that the grantor had
obtained the advance on the faith of his
representation that the chattels comprised
therein were his own property free from any
charge, and undertaking not to mortgage the
same nor borrow from any other loan office
until the whole of the advance had been repaid.
The bill of sale was in the usual form, but
contained no reference to the above letter : —
Held, that the letter and the bill of sale were
one transaction, and that, as the contract
ought to have been inserted in the bill of sale,
and if so inserted would have operated as a
defeasance, the bill of sale was absolutely void
under section 9 of the Bills of Sale Act (1878)
Amendment Act, 1882. Smitli v. Whiteman
(78 L. J. K.B. 1073; [1^)09] 2 K.B. 437)
followed. Hall v. Whiteman, 81 L. J. K.B.
660; [1912] 1 K.B. 683; 105 L. T. 854;
19 Manson, 143; 28 T. L. R. 161— C.A.
Deviation from Statutory Form — Joinder of
Wife of Grantor — Recitals — Estoppel.] — A
husband and wife were parties to a bill of
sale and joined in executing it, but the wife
did not purport to grant the chattels, the
subject of the bill of sale, the husband alone
actually assigning those chattels. The bill of
sale also contained recitals stating how the
liability, in respect of which the security was
given, arose : — Held, that the bill of sale was
valid, as the joining of the wife was mere
surplusage, and did not give the bill of sale a
legal consequence other than that which would
attach to it if drawn in the form required by
the Bills of Sale Act (1878) Amendment Act,
1882, s. 9, and schedule, and that it would
not prevent a borrower understanding the
nature of the security, nor a creditor, searching
the register, understanding the position of the
borrower; and further, that the recitals could
not operate against the wife by way of estoppel,
as she had not entered into any contract.
Brandon Hill, Lim. v. Lane, 84 L. J. K.B.
347; [1915] 1 K.B. 250; 112 L. T. 346;
69 S. J. 75— D.
BILLS OF LADING.
See SHIPPING.
BIRDS.
See WILD BIRDS.
BOARDING HOUSE.
See LANDLORD AND TENANT.
BOND.
Administration.] — See Will.
BOROUGH.
See CORPORATION.
BOUNDARIES.
See a/50 Vol. II. 1850, 2112.
Low-water Marli — Artificial Structures
Erected below Low-water Mark.] — In an
action regarding liabilitv for assessments, held
149
BOUNDAEIES— BUILDING SOCIETY.
150
that the boundary of a burgh, fixed by statute
as " low-water mark " of the sea, followed that
mark as it varied from time to time through
natural fluctuation or was altered by artificial
operations; and that, accordingly, piers which
had been erected so as to extend below the
natural low-water mark were situated wholly
within the burgh. Leitk Docks Commissioners
V. Leith Magistrates, [1911] S. C. 1139— Ct.
of Sess.
Sea Boundary — High-water Mark.] — The
boimdary of the administrative area of a
burgh fixed as " the line of high-water mark "
is a fluctuating boundary, and accordingly
land from which the sea has receded is within
the administrative area. Leith Dock Commis-
sioners V. Leith Magistrates ([1911] S. C.
1139) followed. Christie v. Leven (Magis-
trates), [1912] S. C. 678— Ct. of Sess.
Action to Recover Possession — Strip of Land
by Side of Highway — Waste of Manor —
Evidence of Acts of Ownership over Con-
tiguous Land — Reputation.] — The plaintiffs,
as lords of a manor, claimed a strip of land by
the side of a highway as part of the waste
of the manor. They did not prove acts of
ownership over the land in dispute, but ten-
dered evidence of acts of ownership over the
contiguous land : — Held, that the plaintiffs,
having failed to prove that the disputed land
was within the manor, could not adduce as
evidence of their title acts of ownership over
the contiguous land, and therefore the action
failed. Leeke v. Portsmouth Corporation
(No. 2), 107 L. T. 260 ; 56 S. J. 705— Eve, J.
Contracts.
BUILDING.
1 — See Work and Labour.
BREACH OF
PROMISE.
See HUSBAND AND WIFE.
BRIDGE.
See WAY.
BRITISH COLUMBIA.
See COLONY.
BROKER.
See PRINCIPAL AND AGENT; STOCK
EXCHANGE.
In Metropolis.! — See Metropolis.
Under Public Health Acts.] — See Local
Government.
BUILDING SOCIETY.
See aho Vol. 11. 1866, 2116.
Rules — Borrowing Powers — Banking Busi-
ness— Ultra Yires — Action for Money Had
and Received — Tracing Money.] — A buildmg
society, formed under the Building Societies
Act, 1836, with powers of borrowing, in addi-
tion to the legitimate business of a building
society, established and developed a banking
business on a large scale, which was admitted
to be ultra vires. A winding-up order was
made, and the assets of the society, after
payment of the outside creditors and the costs,
were more than sufficient to pay the members
in full, but were not sufficient to pay them and
also the depositors in the bank in full : — Held,
that the depositors could not maintain an action
for money had and received in respect of the
money borrowed by the society ultra vires,
but that they could recover money which they
could trace into the hands of the society as
actually existing assets, and that on this footing
the members of the society and the depositors
were entitled to rank pari passu in the distri-
bution of the assets, in proportion to the
amounts properly credited to them in respect
of their advances. Sinclair v. Brougham,
83 L. J. Ch. 465; [1914] A.C. 398; 111 L. T.
1; 58 S. J. 302; 30 T. L. E. 315— H.L. (E.)
Blackburn and District Benefit Building
Society v. Cunliffe. Brooks if Co. (54 L. J. Ch.
1091; 29 Ch. D. 902^ disapproved. HalletVs
Estate, In re: Knatchbull v. Hallett (49 L. J.
Ch. 415 : 13 Ch. D. 696|. explained. Guardian
Permanent Beyiefit Building Society, In re;
Crace-Calvert's Case (52 L. J. Ch. 857;
23 Ch. D. 440), distinguished. lb.
Judgment of the Court of Appeal, sub nom.
Birkbeck Permanent Benefit Building Society,
In re (81 L. J. Ch. 769;' [1912] 2 Ch. 183),
varied. lb.
Banking Business — Ultra Yires — Premises
Occupied by Customer of Society — Set-off of
Balance on Current Account against Claim
for Rent.] — The defendant occupied officea
belonging to the plaintiff society, and he was
also a customer of the plaintiffs in the banking
business carried on by them. The plaintiff
society went into liquidation in June, 1911,
and at that time there was rent for two quarters
due by the defendant for the offices occupied
by him. An arrangement was made in Sep-
tember, 1911. by the liquidator of the plaintiff
society and the defendant for a set-off, against
the amount of rent due, of 38Z. 3s. 3d. the
amount of the dividends in the liquidation to
151
BUILDING SOCIETY— CANADA.
152
which the defendant was entitled on his
current account. In November, 1911, it was
decided by the High Court that the banking
business carried on by the plaintiff society was
ultra vires, and that consequently none of their
customers could rely on any legal liability on
the part of the society towards them. After
this decision the official receiver refused to
allow any set-off against the rent due from
the defendant and sued for the full amount.
The defendant set up the arrangement of
September, 1911, as a defence. The County
Court Judge held that there was no considera-
tion for an agreement by way of set-off, since
by the decision of November, 1911, there was
no debt due from the plaintiff society to the
defendant at the time the arrangement was
made : — Held, that the decision of the County
Court Judge was right. Birkbeck Building
Society v. Birkbeck, 29 T. L. E. 218— D.
Ultra Yires — Right to Recover Overdraft
from Customer.] — The liquidator of the Birk-
beck Building Society sued the defendant in
the County Court to recover the amount of an
overdraft due to the society in the banking
business it had carried on. It having been
decided by the Court of Appeal in Birkbeck
Permanent Building Society, In re (81 L. J.
Ch. 769; [1912] 2 Ch. 183), that the banking
business carried on by the society was ultra
vires, the County Court Judge, treating that
as a decision that the banking business was
illegal, held that the action by the liquidator
was not maintainable : — Held, that, although
the banking business carried on by the society
was ultra vires, it was not illegal, and there-
fore that the liquidator was entitled to main-
tain the action as for money had and received
bv the defendant to the use of the society.
Brougham v. Divyer, 108 L. T. 504;
29 T. L. E. 234— D.
Winding-up.] — Per Kenny, J.: The enact-
ments and practice in force at any time in the
Chancery Division for the winding up of com-
panies apply to the winding up of building
societies in the County Court, even though
such provisions may be the result of enact-
ments passed since 1874. Rex v. Londonderry
(Recorder), [1911] 2 Ir. E. 553— K.B. D.
Pensioners — Claim against Assets — Em-
ployment Ultra Vires.] — Where the servant of
a company was employed in matters ultra vires
the company, and therefore illegal, he cannot,
on a winding-up, make any claim against the
assets of the company in respect of a pension
which he was granted upon his retirement.
Birkbeck Permanent Benefit Building Society,
In re, 82 L. J. Ch. 232; [1913] 1 Ch. 400;
108 L. T. 211; 20 Mansou, 159; 29 T. L. R.
256— Neville, J.
Class of Shareholders Paid in Full in
Liquidation under Judgment of Court of
Appeal — Decision of Court of Appeal Reversed
— Money Paid by Mistake — Right of Liquida-
tor to Recover Money Overpaid.! — .\ building
society went into liquidation. The " A " and
" B " shareholders of the society and the
depositors in an unauthorised banking business
carried on by the society had conflicting claims
on the assets of the society. Neville, J.,
decided that the shareholders had priority over
the depositors, and this decision was affirmed
by the Court of Appeal. In the meantime a
scheme of arrangement had been entered into
between the " A " shareholders and the deposi-
tors, and the scheme was sanctioned by
Neville, J., and the Court of Appeal, in spite
of the opposition of the "B" shareholders,
who were not parties to the scheme. The
depositors appealed, as against the " B " share-
holders, to the House of Lords from the deci-
sion of the Court of Appeal which gave the
shareholders priority over the depositors. The
House of Lords reversed the Court of Appeal,
and held that the depositors were entitled to
be paid pari passu with the shareholders.
After the judgment of the Court of Appeal,
but before the appeal in the House of Lords,
the liquidator of the society paid the " B "
shareholders in full. The liquidator now
sought to recover the money overpaid : — Held,
that the liquidator was entitled to have the
money which had been overpaid returned.
Birkbeck Permanent Benefit Building Society,
In re {No. 2), 84 L. J. Ch. 189; [1915] 1 Ch.
91; 112 L. T. 213; [1915] H. B. E. 31;
59 S. J. 89 ; 31 T. L. E. 51— Neville, J.
BURGLARY
INSURANCE.
See INSUEANCE.
BURIAL GROUND.
See CHAEITY; ECCLESIASTICAL LAW.
BURMA.
See INDIA.
BY-LAW.
See COMMONS; COEPOEATION ; LOCAL
GOVEENMENT.
CAMPBELL'S (LORD) ACT.
See NEGLIGENCE.
CANADA.
See COLONY.
153
CANAL— CAERIER .
154
CANAL.
See WATER.
CAPE COLONY.
See COLONY.
CAPITAL AND INCOME.
See TENANT POR LIFE AND
REMAINDERMAN.
CARGO.
See SHIPPING.
CARRIER.
See also Vol. III. 1, 2171.
By Railway.] — See Railway.
By Tramway.] — See Tramway.
Removal of Furniture — Liability of Remover
— "Whether that of a Common Carrier.] — The
defendant, who was a furniture remover and
was not a common carrier, having inspected
certain furniture belonging to the plaintiff,
agreed with him to remove it from one place
to another for a named sum, no other special
terms being fixed. On the way a fire broke
out in the van, and the furniture was damaged.
The fire was not caused by any negligence of
the defendant or by the plaintiff's putting any
improper articles in the van. The plaintiff
sued the defendant for the loss, and the Judge
held that the defendant, though not a common
carrier, did business on the terms of receiving
an order from anybody and therefore had con-
tracted on the footing of a common carrier and
was accordingly liable : — Held, on appeal, that
there was no evidence of the defendant's doing
business on the terms of receiving an order
from anybody and consequently no evidence of
his having contracted on the footing of a
common carrier, and that therefore he was not
liable. Watkins v. Cottell, 32 T. L. R. 91
— D.
Passenger — Motor Omnibus — Riding on Top
— Order Prohibiting — Refusal to go Inside —
Delay of Omnibus — Wilful Obstruction.T— A
borough corporation, which owned motor
omnibuses, made an order owing to tlie camber
of a certain road that passengers should not
travel on the top between a point L. and the
terminus. The appellant, who had paid his
fare and was a passenger on the top of an
omnibus, on the top of which notice of the
order was exhibited, was asked by the con-
ductor, on reaching the point L. to stand
inside. The appellant refused, the result being
that the omnibus was delayed for twenty
minutes, at the end of which time he left the
omnibus. The appellant was convicted under
a by-law of wilfully obstructing the servants
of the corporation in the execution of their
duty : — Held, that the conviction was right.
Baker v. Ellison, 83 L. J. K.B. 1835; [1914]
2 K.B. 762; 111 L. T. 66; 78 J. P.' 244;
12 L. G. R. 992 ; 24 Cox C.C. 208 ; 30 T. L. R
426— D.
Carriage by Sea — Notice of Conditions.
— The plaintiff applied to the defendants for
a passage by their line of steamers from Hull
to Archangel, and was given a ticket which
had on its face a condition that the defendants
would not be responsible for any loss or
damage of luggage or for personal injuries
arising from any neglect of the master.
Through the negligence of the master the
vessel failed to keep to the route prescribed
by the Admiralty for vessels crossing the
North Sea, and in consequence she struck a
mine and foundei-ed. As a result the plain-
tiff lost her luggage, and she suffered from
nervous shock. In an action by the plaintiff
against the defendants for damages, the jury
found (Ij that though the plaintiff was aware
generally that there were conditions relating
to contracts of travel, there was no evidence
that she was aware that they were printed
on her ticket, and (2) that the defendants did
not do what was reasonably sufficient to give
the plaintiff notice of the conditions, and they
awarded the plaintiff damages : — Held, that
the defendants had done all that was reason-
ably necessary on their part to give the
plaintiff reasonable notice of the conditions
and therefore were entitled to judgment.
Cooke V. Wilson, 60 S. J. 121; 32 T. L. R.
160— C. A.
Goods — General Lien — Stoppage of Goods
in Transitu by Unpaid Vendor — Whether
Lien Exercisable by Unpaid Yendor.] —
Goods were consigned bv the plaintiffs from
the United States to T.'& Co., in England.
The goods were shipped upon a through bill
of lading which provided that they were to
be carried to Manchester and from there to be
forwarded to T. & Co. via the defendant rail-
way, " and the carrier is authorised by the
owner to forward by a connecting carrier and
upon such conditions as the latter may exact."
The defendants had the following condition
on their consignment note : " All goods
delivered to the company will be received and
held by them subject to a lien for money due
to them for the carriage of and other charges
upon such goods, and also to a general lien for
other moneys due to them from the owners of
such goods upon any account." Before the
goods in question were delivered to T. it Co.
that firm became insolvent, whereupon the
plaintiffs claimed to stop the goods in transitu.
The defendants were paid the charges for the
155
CAERIEK— CHAEITY.
156
conveyance of the goods in question, but as
T. & Co. owed them in respect of the convey-
ance of other goods the defendants claimed
to exercise their general lien as against the
plaintiffs on the goods in question : — Held,
that they were not entitled to do so. United
States Steel Products Co. v. Great Western
Raihi-ay, 85 L. J. K.B. 1; 59 S. J. 648;
21 T. L. R. 561— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 1650; [1914] 3 K.B. 567) reversed. lb.
Lighterman — Contract — Damage Cover-
able by Insurance — Exemption from Responsi-
bility — Liability for Negligence.] — The
defendant contracted with the plaintiffs that
he would lighter certain goods from the import
ship to a wharf on the Thames. The goods,
when on the defendant's barge, were damaged,
and the plaintiffs brought an action against
the defendant alleging negligence of the defen-
dant's servants. The defendant denied
negligence, and relied on the following notice :
" The rates charged by me for lighterage are
for conveyance only. I will not be responsible
for any damage to goods, however caused,
which can be covered by insurance. Merchants
are advised to see that their policies cover risk
of craft and are made without recourse to
lighterman " : — Held (Buckley, L.J., dissent-
ing), that the notice protected the defendant
from liability for loss by negligence. Travers
<f Sons, Lim. v. Cooper, 83 L. J. K.B. 1787;
[1915] 1 K.B. 73; 111 L. T. 1088; 20 Com.
Cas. 44; 30 T. L. R. 703— C.A. Affirming,
12 Asp. M.C. 444— Pickford, J.
CERTIORARI.
Application for Writ on Fiat of Attorney-
General— Limit of Time.]— Rule 21 of the
Crown Office Rules, 1906 (which provides that
" No writ of certiorari shall be granted,
issued or allowed to remove any judgment,
order, conviction, or other proceeding had or
made by or before any justice or justices of
the peace . . . unless such writ of certiorari
be applied for within six calendar months next
after such judgment, order, conviction, or
other proceeding shall be so had or made,
. . ."), does not apply to the application for
a writ of certiorari on the fiat of the Attorney-
General acting on behalf of the Crown. Rex
V. Amendt, 84 L. J. K.B. 12.59; [1915] 2 K.B.
276; 113 L. T. 35; 79 J. P. 324; 59 S. J. 363;
31 T. L. R. 287— C.A.
Decision of Divisional Court (83 L. J.
K.B. 1398; [1914] 3 K.B. 222) reversed. 7b.
Removal of Action from County Court to
High Court — Consent of Parties — Obligation
of Plaintiff to Proceed with Action. ]^W here
in a County Court action an order has been
made by consent of the parties for the
removal of the action into the High Court
by a writ of certiorari, and subsequently, on
the application of the defendants, a writ of
certiorari has been granted removing the
action into the High Court, the plaintiff is
under no obligation to proceed with the action
in the High Court. Carton v. Great Western
Railway (28 L. J. Q.B. 103; 1 E. & E. 2-58)
followed. Harrison v. Bull, 81 L. J. K.B.
6.56; [1912] 1 K.B. 612; 106 L. T. 396;
56 S. J. 292 ; 28 T. L. R. 223— C.A
CEYLON.
See COLONY.
CHAMPERTY.
See also Vol. III. 201, 2215.
Charity — Maintenance.] — If a person makes
a bargain with another to assist him in bring-
ing an action, upon the terms that he is to
receive part of the proceeds, that bargain
amounts in law to champerty, although the
person rendering the assistance would not have
done so to a stranger or to any one other than
a friend in needy circumstances. Charity may
be indiscreet, but must not be mercenary. The
plaintiff out of charity lent a sum of 326Z. IO5.
to the defendant to enable him to bring an
action for malicious prosecution. The defen-
dant agreed that if he succeeded in the action
he would repay this loan, and also pay 601.
out of any damages he might recover. The
defendant, having succeeded in his action for
malicious prosecution, repaid to the plaintiff
272Z., but he refused to repay the balance of
54L 10s. or to pay the 601., whereupon the
plaintiff sued him to recover these sums : —
Held, that the plaintiff was entitled to recover
the 54L IO5., but not the 60Z. Cole v. Booker,
29 T. L. R. 295— Bailhache, J.
Damages when Recovered in Pending
Action of Tort.] — An assignment for valuable
consideration by the plaintiff in a pending
action of tort to one of his creditors of the sum
of money to which he may become entitled
by virtue of the action, inasmuch as it is
not an assignment of a mere right of action,
but of property to come into existence in the
future, is not invalid as savouring of cham-
perty or maintenance. Glegg v. Bromley,
81 L. J. K.B. 1081 ; 106 L. T. 825— C.A.
CHARITY.
I. Jurisdiction and Powers, 157.
II. Charitable Gifts.
1. Construction in General, 159.
2. Indefinite or Uncertain Objects, 164.
3. To Particular Objects, 164.
III. Administration of Charities, 171.
IV. Mortmain Acts, 176.
157
CHAEITY
158
I. JURISDICTION AND POWERS.
See also Vol. III. 220, 2218.
Charity Commissioners — Hospital — Endow-
ment— Foundation Deed — One Original Con-
tribution.]— A founder by deed of gift gave
rciil and personal property to trustees for the
purpose of founding a hospital. The deed of
gift provided for the sale of the property, and
that 10,000?. of the capital and income thereof
should be applied for or towards the erection
and equipment of the hospital, and the residue
of the capital and income towards the general j
purposes of the charity. The hospital had ;
been erected, and had been partly equipped out j
of the sums realised by the sale of part of the !
property. No other donations or subscriptions :
had been received by the trustees of the
charity. The Charity Commissioners claimed
the right to have the accounts of the charity
submitted to them : — Held, that, as at present
the charity derived its support entirely from
the property which it received from the original
donation, it was not a charity " wholly main-
tained by voluntary contributions," and there-
fore it was not exempt, under section 62 of
the Charitable Trusts Act, 1853, from the
jurisdiction of the Charity Commissioners.
Richard Murray Hospital, In re, 84 L. J.
Ch. 184; [1914] 2 Ch. 713; 111 L. T. 710;
79 J. P. 2; 58 S. J. 670; 30 T. L. R. 600
— Joyce, J.
Endowment — Voluntary Subscriptions —
Vendor and Purchaser — Sale of Charity Land
— Trust Deed — Implied Authority to Declare
Trusts for General Purposes.] — In 1771 a
charity purchased certain freehold land and
erected thereon a school building. The funds
for the purchase and the building were pro-
vided partly out of the general funds and
subscriptions of the charity and partly by
special subscriptions given for the purpose.
Subsequently the land thus purchased and the
building were conveyed to trustees to be held
upon trust for the use, benefit, and service of
the charity, and to be conveyed and disposed
of from time to time in such manner as should
be ordered and directed for that purpose at any
general court or meeting of the subscribers of
the said charity for the time being, and to or
for no other use. trust, intent, or purpose what-
soever. In 1848 the charity was incorporated
by Act of Parliament, and that Act was
amended and superseded by an Act of 1905.
The charity was one deriving its funds partly
from voluntary subscriptions and partly from
income arising from property held on trust for
it, and had power by one section of the Act
of 1905 to sell its land ; a later section of the
same Act, however, provided that this power
of sale should be exercisable as regards pro-
perty forming an endowment for charitable or
educational purposes and not exempted from
the jurisdiction or control of the Charity Com-
missioners or the Board of Education, with
the consent of the Charity Commissioners or
of the Board of Education, as the case might
be. ^On a sale of a portion of the land bought
in 1771, — Held, first, that the provision in the
Act of 1905 meant that where but for that Act
the consent of the Charity Commissioners or of
the Board of Education would have to be
obtained, it must be obtained notwithstanding
the power of sale given in the earlier section.
Held, secondly, that under the trusts declared
the land was conveyed for the general pur-
poses of the charity ; that the subscriptions to
the building fund were not, within the mean-
ing of section 62 of the Charitable Trusts Act,
1853, appropriated by the donors upon any
special trust ; that they were applicable for
income as well as capital purposes of the
charity, and that the land was therefore
exempt from the jurisdiction and control of the
Charity Commissioners or the Board of Educa-
tion, and could be sold without their consent.
Held, further, applving the principle of Att.-
Gen. V. M athieson'il 6 1j. J. Ch. 682; [1907]
2 Ch. 383) and following Church Army, In re
(75 L. J. Ch. 467), that, in the absence of
evidence to the contrary, the trusts declared
in respect of the subscriptions to the building
fund must in the circumstances be taken to
carry out the true intent and meaning of the
subscribers who gave money in the first in-
stance to that fund. Orphan Working School
and Alexandra Orphanage, In re, 81 L. J.
Ch. 627 ; [1912] 2 Ch. 167 ; 107 L. T. 254—
Parker, J.
Board of Education — Land Transfer — Volun-
tary Subscriptions — Investment in Land —
Gift of Land — Mixed Charity — Endowment —
Power of Sale.] — The Foundlmg Hospital was
a charity incorporated by Royal charter in
1739, with power to buy. hold, and sell land.
Prior to 1750 certain land in Bloomsbury was
conveyed to the governors of the charity in fee-
simple and paid for out of voluntary contribu-
tions liable to be expended as income, although
some of the contributions were made with the
idea of purchasing property to produce income
for the maintenance of the charity. On part
of this land, among other buildings, a chapel
was built, which was partly paid for out of
money specially contributed for the purpose.
Under a private Act of Parliament of 1885
certain sales and leases of the charity land
were enacted to be valid notwithstanding
certain Acts of Elizabeth, which had been sug-
gested to have the effect of invalidating them,
but not so as to make valid any act not autho-
rised by the charter. In 1744 certain property
in the City of London was conveyed by two
donors to the charity without any express trust.
The income of the charity consisted partly,
though only to a small extent, of annual sub-
scriptions, " annual benefactions," and of
legacies and donations received from time to
time, in addition to the income from lands.
The income from land at the present time
exceeded the whole annual expenditure of the
charity. In an action for a declaration that
the lands of the charity could not be disposed
of except in accordance with the provisions of
section 29 of the Charitable Trusts Amendment
Act, 1855 — that is, not without the consent of
the Board of Education,— ffeW, that the
charity was at the time of the passing of the
Charitable Trusts Act, 1853, and had ever
since been, maintained partly by voluntary
subscriptions and partly by income arising
from endowment, and that the exemption in
the latter part of section 62 of that Act (with
159
CHAEITY.
160
reference to donations, bequests, and subscrip-
tions legally liable to be applied as income
and to investments thereof) applied both to
the Bloomsbury estate and to the City pro-
perty ; that the charity was therefore by virtue
of section 48 of the Charitable Trusts Amend-
ment Act, 1855, exempted from the operation
of section 29 of that Act, and could dispose
of its property without the consent of the Board
of Education. Charity for Poor Widows dc.
and Skinner, In re (62 L. J. Ch. 148; [1893]
1 Ch. 178). and Church Army, In re (75 L. J.
Ch. 467), followed and applied. Att.-Gen. v.
Fonndlinq Hospital, 83 L. J. Ch. 673; [1914]
2 Ch. 154; 110 L. T. 894; 78 J. P. 233;
12 L. G. R. 500; 58 S. J. 398; 30 T. L. E. 372
— Joyce, J.
II. CHARITABLE GIFTS.
1. Construction in General.
See also Vol. III. 292, 2223.
Provision in Will that Doubts as to Identity
of Legatees be Decided by Trustees — Juris-
diction of Court.]— It is not competent for a
testator to confer legal rights by the gift of
legacies, and at the same time to provide that
questions whether or not those legal rights
are to be enjoyed are to be determined by a
tribunal indicated by the testator, and not by
the Courts. Such a provision is an attempt
to deprive the legatees of one of the incidents
of their rights; and it is, further, unlawful
and inoperative on grounds of public policy,
as being an attempt to deprive persons of
resort to the ordinary tribunals to determine
their legal rights. Massy v. Rogers (11 L. R.
Ir. 409) followed. Raven, In re; Spencer v.
National Association for Prevention of Con-
sumption, 84 L. J. Ch. 489; [1915] 1 Ch. 673;
113 L. T. 131— Warrington, J.
Legacy to Charitable Institution already
Dissolved — Institution in Existence of Similar
Name and Identical Purpose.] — By her will
made in 1910 a testatrix gave a legacy of
3,000i. to Queen's College, Belfast, to found
a Scholarship bearing her name. Her husband
had been educated at the college. The college
had, however, been dissolved in 1909 under the
provisions of the Irish Universities Act, 1908,
whereby its property had been transferred to
the Queen's t^niversity of Belfast, founded in
pursuance of the Act. There was no evidence
whether the testatrix knew of the dissolution
of Queen's College : — Held, that it could not
be assumed that she was ignorant of what
had taken place, and that the Queen's Univer-
sity of Belfast, being an existing society of
similar name and identical purpose, and suffi-
ciently described, was entitled to the legacy.
Coldwell V. Holme (23 L. J. Ch. 594; 2 Sm.
& G. 31) followed. Magrath, In re; Histed
V. Belfast University, 82 L. J. Ch. 532; [1913]
3 Ch. 331 ; 108 L. T. 1015 ; 29 T. L. E. 622
— Warrington, J.
Legacy to Society — Amalgamation — New
Society.] — A legacy to a charitable society
which, subsequent to the date of the will,
amalgamated with another society to form a
new society with similar objects, held to be
payable to the new society. Pritt, In re;
Morton v. National Church League, 113 L. T.
136; 31 T. L. R. 299— Eve, J.
Institution — Local Branches — Receipt of
Legacies by Branch — Whether Institution
Entitled to Payment Over.] — A Royal Charter
governing an institution empowered the
governors to make by-laws for the management
of its affairs, and they make a by-law provid-
ing that " in the event of a legacy being
received by a branch it must at once be trans-
ferred, with the necessary particulars, to the
institution." Various testators left legacies to
or for the purposes of the Blackpool branch,
which was not a separate charitable body : —
Held, that in the case of legacies which were
within the by-law the institution was entitled,
on their receipt by the branch, to have them
paid over and the central committee was
entitled to control the expenditure of the
money, subject to its being restricted to the
area of the branch, but that where a legacy
had been left to the local committee, to be
applied in their discretion in connection with
the branch, or had been left to be applied
by the local committee for the relief of sailors,
the legacy not being within the by-law should
not be sent to the institution, but should be
administered by the local committee. Royal
National Life-boat Institution v. Turver,
31 T. L. R. 340— Sargant, J.
Charitable Legacy — Misdescription — Change
in Address — Change of Management — Con-
firmation by Codicil — Validity — Gift for
Particular Charitable Object.] — By her will,
dated in 1908, a testatrix gave a legacy of
1,000/ . to " Saint Mary's Home for Women
and Children of 15 Wellington Street, Chel-
sea." By her codicil, dated March 20, 1911,
she revoked so much of the legacy as exceeded
500L and in other respects confirmed the
bequest. At the date of the will the P.
Association conducted St. Mary's Home at
15 Wellington Square, Chelsea, with separate
management. In 1909 the home was handed
over to the C. Association, but under the same
separate management. Later in 1909 the
home was moved to another house in the neigh-
bourhood. The legacy was claimed by the
C. Association : — Held, that, having regard to
tlie confirmation of the bequest by the codicil,
the inaccuracy of the local description did not
invalidate the bequest and that it was a good
charitable legacy, not to the C. Association,
but for the charitable objects of St. Mary's
Home. Wedgwood, In re; Sioeet v. Cotton.
83 L. J. Ch. 731 ; [1914] 2 Ch. 245; 111 L. T.
436; 58 S. J. 595; 30 T. L. R. 527— Joyce, J.
Legacy to Society — Two Societies of Similar
Names — Accurate Use of Name — Presump-
tion.]— A domiciled Scotsman made in Scots
form a will, prepared in Scotland by a Scottish
solicitor, and in the midst of a series of
legacies to Scottish charities he left a legacy
to the " National Society for the Prevention of
Cruelty to Children." The society of this
name had its head office in England and did
not operate in Scotland, but there was in
Scotland a society called the " Scottish
161
CHAEITY.
162
National Society for the Prevention of Cruelty
to Children " -.—Held, that though there was
no rigid rule that where a legatee was
accurately named there could be no enquiry
with regard to the person to take the legacy,
yet the accurate use of a name in a bequest
afforded a strong presumption against the claim
of any one who was not the possessor of the
name mentioned in the will and that as it had
not been proved that the testator meant some-
thing different from what he said, the English
society was entitled to the legacy. National
Society for Prevention of Cruelty to Children
V. Scottish National Society for Prevention of
Cruelty to Children, 84 L. J. P.C. 29; 58 S. J.
720; 30 T. L. E. 657— H.L. (Sc.)
Gift to Charity Incompletely Named —
Ambiguity — Evidence of Intention.l — A
testator gave, among other charitable legacies,
one to " The National Association for the
Prevention of Consumption." He directed that
if any doubt should arise in any case as to the
identity of the association intended to benefit,
the question should be decided by his trustees,
whose decision should be final and binding on
all parties. There was no institution entitled
" The National Association for the Prevention
of Consumption," but there was one, having
its office in London, entitled " The National
Association for the Prevention of Consumption
and other Forms of Tuberculosis." There was
also an independent branch of this association
in the locality where the testator lived : — Held,
that the question which institution was
entitled to the legacy must be decided by the
Court and not by the trustees of the will.
Held, also, that the description in the will
applied to the National Association only : that
evidence of intention could not be admitted ;
and that the National Association and not the
branch was therefore entitled to the legacy.
Raven, In re; Spencer v. National Association
for Prevention of Consumption. 84 L. J. Ch.
489; [1915] 1 Ch. 673; 113 L. T. 131—
Warrington, J.
Charitable Trust — Perpetuity — Gift for Con-
tribution to Workpeople's Holiday — Gift to
Club — To be Used as Committee should Think
Best.] — A testator gave a legacy for the pur-
poses of contribution to the holiday expenses of
workpeople employed in a business in such
manner as the directors should think fit ; and
he gave the residue of his estate to a club, and
by a codicil declared that he desired the money
to be utilised by the club for such purposes as
the committee might determine : — Held, that
the gift to the workpeople was not a good
charitable gift either as being for poor persons
or for general public purposes, and was there-
fore void as infringing the rule against per-
petuities. Held, also, that the gift to the club
was a good gift for such purposes as the
committee might determine. Drummond. In
re; Ashicorth v. Drummond, 83 L. J. Ch. 817 ;
n914] 2 Ch. 90; 111 T;. T. 156; 58 S. J. 472;
30 T. L. E. 429— Eve, J.
Gift to Found Homes for Aged Poor— Site
to be in Western Suburb of London or in
Adjacent Country — "Western suburb" —
"Adjacent."] — A testator gave a large sum
of money to found homes for aged poor, and
directed his trustees to lay out a sufficient part
thereof in the purchase of a site " in some or
one of the western suburbs of London or in
the adjacent country." The trustees proposed
to purchase a very eligible site for the purpose
near Croydon : — Held, that the site was not
in a western suburb or in the adjacent country.
Whiteley, In re; London (Bishop) v. Whiteley,
55 S. J. 291— Eve, J.
Residue of Rents — Meaning of "employed
and bestowed."] — A testator gave land to a
City Company subject to a direction to distri-
bute 40/. a year in charity and with a provision
that the residue of the rents should be
■' employed and bestowed " according to their
discretion, and in the event of his will not
being carried out for the space of a year there
was a gift over : — Held, that there was no
direction in the will to hold the surplus rents
above 40L for any purposes which would in law
be charitable. Rowe,In re ; Merchant Taylors'
Co. V. London Corporation, 30 T. L. E. 528 —
Astbury, J.
Invitation of Subscriptions — Excess over
Expenditure — Proper Destination of Balance.]
— A Eed Cross Society, believing that they had
no power to expend their funds in a war in
which British troops were not engaged, invited
and received subscriptions to a special fund
to be expended in aiding the sick and wounded
in the war which broke out in 1912 between
the Balkan Allies and the Turks. At the end
of the war a large balance of the special fund
was still unexpended, and in reply to a circular
from the society stating that the war was
concluded a large majority of the subscribers
consented that the balance of their subscrip-
tions should be used for the general purposes of
the society, a very few refused their consent,
and a considerable number did not reply.
Shortly after this a war broke out between the
Balkan Allies, and the society expended a
further sum in this war : — Held, that on the
construction of the invitation and circular the
subscriptions for the war against Turkey could
not be used for the war between the Allies,
and that those who subscribed after the date
at which the society had received subscriptions
sufficient to cover all the expenditure incurred
in the war against Turkey and who desired the
return of their subscriptions were not entitled
to the return of their subscriptions in full, but
only to the return of such proportion as the
amount unexpended on the war against Turkey
bore to the total sum subscribed. British Red
Cross Balkan Fund, In re; British Red Cross
Society v. Johnson, 84 L. J. Ch. 79; [1914]
2 Ch. 419; 58 S. J. 755; 30 T. L. E. 662—
Astbury, J.
Validity of Bequest — Common Law Condi-
tion Subsequent — Gift Over.- — A testator
devised all his land in Australia, subject to cer-
tain life interests, to the council of the Church
of England Collegiate School of St. Peter, at
Adelaide, for the general purposes of that
institution, but on the express condition that
the council should publish annually a state-
ment of payments and receipts, and in case
default should be made for six months in the
6
163
CHAKITY
164
publication of such statement of accounts the
gift should cease and determine and should
go over and enure for the sole benefit of such
persons and for such public purposes as the
Governor for the time being of South Aus-
tralia should in writing direct : — Held, first,
that the gift over was not a good charitable
gift ; secondly, that the condition was a
common law condition subsequent and was
void as being obnoxious to the rule against
perpetuities; and thirdly, that the council of
the collegiate school were therefore entitled
to a conveyance of the land freed from the
condition. Da Costa, In re; Clarke v. St.
Peter's Collegiate School, 81 L. J. Ch. 293;
[1912] 1 Ch. 337; 106 L. T. 458; 56 S. J. 240;
28 T. L. R. 189— Eve, J.
Hospital — Ecclesiastical Law — Conse-
crated Chapel — Rebuilding — New Chapel —
Consecration of New Chapel — Effect of Con-
secration/— An unincorporated society con-
sisting of a large number of governors was in
possession of an infirmary, held by them on
charitable trusts. The infirmary contained a
consecrated chapel with an endowed chaplaincy
attached and with statutes and rules providing
for services of the Church of England only
therein. It becoming expedient to build a new
and enlarged infirmary upon a new site the
governors accepted a gift of a large sum, given
on condition that the subscriptions to the new
infirmary building fund became available for
the general purposes of the institution. The
new buildings included a chapel, the cost of
which came out of the subscribed funds gener-
ally, but the organ, altar, pulpit, and general
fittings were provided by special donations
made by members of the Church of England.
The general administration and management
of the infirmary was carried on by a house
committee appointed by the governors. Shortly
before the opening of the new infirmary, the
house committee invited the bishop of the
diocese to consecrate the new chapel, which
he shortly afterwards did upon the formal
petition of the trustees, to whom the new
site and building had been conveyed. The
petition stated that the new infirmary buildings
included a chapel which had been erected " in
substitution for the present Eoyal infirmary
and the consecrated chapel thereof, which is
intended to be pulled down." In an action by
certain of the governors for a declaration that
the new infirmary and the site thereof were
vested in the trustees upon trust notwithstand-
ing the dedication service above-mentioned to
permit the chapel to be used for the general
purposes of the charity, including the holding
therein of religious services other than those
of the Church of England for the benefit of the
objects of the charity, — Held, first, that,
inasmuch as the trustees had a bare legal
estate with no powers at all, and the house
committee's functions were confined to the
administration and management of the infir-
mary, their action in inviting the bishop to
consecrate would have been ultra vires but for
the fact that the old infirmary was consecrated,
and that it must be presumed to have been the
prima facie intention of all parties to reproduce
as nearly as might be the state of things exist-
infT in the old infirmary. Held, secondly, that
inasmuch as the consecration had been duly
performed, there would in any event have been
no jurisdiction in a secular Court to interfere
or to make the declaration asked for. Sutton
V. Bowden, 82 L. J. Ch. 322; [1913] 1 Ch.
518; 108 L. T. 637; 29 T. L. R. 262—
Farwell, L.J.
2. Indefinite or Uncertain Objects.
See also Vol. III. 302, 2229.
Residue Given to Archbishop and Successors
— To be Used Wholly or in Part as Arch-
bishop may Judge most Conducive to the
Good of Religion.]— The gift by will of a
residue to the Catholic Archbishop of Brisbane
and his successors '"to be used and expended
wholly or in part as such Archbishop may
judge most conducive to the good of religion
in this diocese," — Held, not to be a good
charitable bequest and to be void for lack of
certainty in the words " wholly or in part,"
the wideness of the discretion in the legatee,
and the vagueness of the words " most con-
ducive to the good of religion in this diocese."
Dunne v. Bijrne, 81 L. J. P.C. 202; [1912]
A.C. 407; 106 L. T. 394; 56 S. J. 324:
28 T. L. R. 257— P.C.
" Charitable institutions, persons, or
objects."] — A testatrix left the residue of her
estate to her trustees " with power to them to
distribute the same amongst such charitable
institutions, persons or objects, as they may
think desirable " : — Held (Lord Skerrington
diibitante), that the bequest was not void for
uncertainty, the words " charitable persons
falling to be construed as meaning persons in
need of charity. Cameron's Trustees v. Mac-
kenzie, [1915] S. C. 313— Ct. of Sess.
Police Superannuation Fund — Uncertainty
— Perpetuity. 1 — The testator gave the residue
of his property to " the superannuation fund
of the Cardiganshire constabulary." The only
fund of this kind in the district was the
" police pension fund " created by the Police
Act, 1890, which is administered in the case
of a county by the county council. No person
is authorised by that statute to receive
augmentations to the fund; but by section 18.
sub-section 3, surplus income may be invested,
and (section 22, sub-section 1) where there is
an excess of income over expenditure the police
authority may apply to the Secretary of State
for a provisional order authorising payment
out of the fund for such purposes as may
seem expedient : — Held, that even if the
" police pension fund " were intended by the
testator, the destination of that fund was
uncertain, and the gift was invalid as not
being to a proper charitable object. Davies.
In re; Lloyd v. Cardigan County Council.
84 L. J. Ch. 493 : [1915] 1 Ch. 543 ; 13 L. G. R.
437; 59 S. J. 413— Neville. J.
3. To Particular Objects.
See also Vol. III. 309, 2234.
"Charitable or religious purposes."! — By
his will a testator devised and bequeathed the
residue of his property real and personal to
165
CHARITY.
160
W., the Bishop of Ossory, or other the bishop
of that diocese for the time being, and F.,
the incumbent of the parish of Carlow, or
other the incumbent of that parish for the
time being, upon trust to pay the interest,
dividends, or annual proceeds of his residuary
estate to his three sisters, and the survivors
and survivor of them for life, " and from and
after the decease of such survivor in trust to
apply and dispose of such interest, dividends,
or annual proceeds from time to time for the
use of the Protestant Orphan Society of the
county of Carlow, or for or towards the relief
and benefit of such poor and necessitous
Protestant widows and widowers resident in
the county of Carlow, or to both of such
objects or purposes, or to such other merely
and purely charitable or religious purpose or
purposes for the benefit of or advantage of
members of the Church of Ireland, or other
Protestant denomination within the said
count}' of Carlow, in such shares and propor-
tions, and in such manner as my said trustees
shall in their uncontrollable discretion think
fit " : — Held, that the testator, in the words
" charitable or religious " had not shewn an
intention to enable the trustees to apply the
gift to purposes religious, but not charitable,
and that the gift was a valid charitable gift.
Davidson, In re; Minty v. Bourne (78 L. J.
Ch. 437; [1909] 1 Ch. 567), distinguished.
Salter, In re; Rea v. Crozier, [1911] 1 Ir. E.
289— Barton, J.
A gift to be applied " for such religious or
charitable purposes " as the donor shall think
fit is not void for uncertainty. Rickerby v.
Nicholson, [1912] 1 Ir. R. 343— Eoss, J.
"Religious and charitable institutions in
Glasgow and neighbourhood."] — A testator
directed his trustees to " pay and divide "
a sum of 250/. " among such religious and
charitable institutions in Glasgow and neigh-
bourhood as they may select, and in such
proportions as they may think proper " : —
Held, that the bequest was to be construed
as a bequest to institutions in the locality of
which it could be predicated that they were
both religious and charitable, and that it was
not void for uncertainty. M'Phee's Trustees
V. M'Phee, [1912] S. C. 75— Ct. of Sess.
Religious Purposes — Provision for Annual
Sermon in Parish Church — Revenues in Excess
of Requirements — Application of Surplus
Cy-pr^s — Scheme — Payment of Stipends of
Assistant Curates — Applying Income to Reli-
gious Purposes only — Subdivision of Old
Ecclesiastical Parish — Confining Benefit to
Ancient Parish Church. 1 — In 1580 A. conveyed
lands in West Ham in trust to employ part of
the rents and profits for or towards the charges
of a sermon to be made annually in the parish
church. The rents and profits subject to this
trust had now increased to upwards of 300/.
per annum. The ancient parish had been
divided into nineteen ecclesiastical parishes,
of one of which the ancient parish church was
the parish church ; and the borough of West
Ham, which was coterminous with the ancient
parish, had now a population of about 300,000.
A scheme having been directed for the applica-
tion cy-pris of the income, so far as it was
not required for the annual sermon, — Held,
that A.'s object was a distinctly religious one,
and that no part of the income ought to be
applied to the delivery of lectures or to any
non-religious purpose. Held, also, that the
object nearest to that expressed in the deed
was the payment of the stipends of assistant
curates ; that the application of the income
ought to be confined to the ecclesiastical parish
now attached to the ancient parish church ;
and that any money not required for the pay-
ment of curates' stipends ought to be applied
by the trustees in or towards the expenses
incurred by the vicar in providing for the due
conduct of the services of the church, the
visitation of the poor, or the religious instruc-
tion of the parishioners, with power to the
trustees to pay any particular part of the
income to the vicar, to be applied by him to
one or more of those objects and accounted for
accordingly. Avenon's Charity, In re; Att.-
Gen. V. Pelly, 82 L. J. Ch. 398; [1913] 2 Ch.
261; 109 L. T. 98; 57 S. J. 626— Warring-
ton, J.
Dissenting Protestants — Unitarians — " Con-
gregation."] — An annuity charged on land
was granted by deed made in 1761 to trustees
on trust to pay it to the Eev. J. P. or such other
persons as for the time being should have the
pastoral care of the congregation of dissenting
Protestants of the town of C, for or towards
the support of such pastor. The congregation
of which the Eev. J. P. was then pastor were
Presbyterians, and had a church in Nelson
Street, C. A subsequent minister adopted
Unitarian doctrines, and in 1827 the majority
of the congregation seceded and built a church
of their own in C, which was carried on in
connection with the General Assembly of the
Presbyterian Church in Ireland. The rest of
the congregation continued to attend the
church in Nelson Street, in which, thence-
forth. Unitarian doctrines were preached. The
Unitarian congregation of C. was one of the
three congregations — namely, Dublin. Cork,
and Clonniel — forming the Synod of Munster.
The annuity was paid to the Unitarian
minister for the time being of the church,
without question. There was a resident
minister down to 1882, after which date the
services were conducted by visiting ministers.
In 1911 the land on which the annuity was
charged was sold under the Purchase of Land
(Ireland) Acts, the annuity was redeemed, and
the redemption price paid into Court. A claim
was then made to the redemption price on
behalf of the Presbyterian congregation in C.
The only persons then attending service in
the Nelson Street church were three members
of the family of the late resident minister,
and one other person : — Held, that, inasmuch
as no particular religious doctrines were
required by the trust deed to be taught, the
provisions of the Dissenters' Chapels Act, 1844,
applied, and that the usage for twenty-five
years and upwards preceding the claim was
conclusive evidenc(> that Unitarian doctrines
and mode of worship might properly be taught
and observed in the church, and that the right
of the minister to the annuity could not be
called in question ; that there still was a con-
gregation of Unitarians attending the church ;
167
CHAEITY.
168
and that the income of the trust fund should
be paid to the minister for the time being of
the Unitarian congregation in C. Hutchin-
son's Trusts, In re, [1914] 1 Ir. R. 271—
M.R.
Chapel Building Fund — Reversionary Be-
quest to Same — Immediate Bequest Held
Invalid in 1876 under then Existing Statute
of Mortmain — Claim to Reversionary Bequest
— Res Judicata.] — A will proved in 1874 gave
an iiiunediate legacy of 200L to a chapel
building fund, and also a reversionary be-
quest, payalile after the death or re-raarriage
of the testator's widow. The executors
believed that these legacies transgressed the
then operative Statutes of Mortmain, and an
order was made in chambers, dated May 8,
1876, directing that the 200L should fall into
the residue. The testator's widow died in
1909 : — Held, that the representatives of the
building fund were entitled to the reversionary
bequest, inasmuch as the fund had other
objects than those involving the purchase of
land to which the money might be applied.
Held, further, that the order of 1876 did not
constitute an estoppel by res judicata, as such
order had been in respect of another bequest,
and had been based on a belief which was
erroneous. SurfleeVs Estate, In re; Rawlings
V. Smith, 105 L. T. 582; 56 S. J. 15—
Parker, J.
Augmentation Fund for Benefice — Condition
— " Never be held in plurality " — De-
feasance.]— A clergyman who had for many
years down to shortly before his death been
rector of K., by his will bequeathed 1,000Z.
"as an augmentation fund " for that benefice
" upon condition that the benefice or rectory
never be held in plurality by any neighbouring
clergyman." Steps towards the union of the
rectory of K. with a neighbouring rectory and
vicarage were commenced by the bishop of
the diocese in the year preceding the testa-
tor's death, and subsequently, in the year of
his decease, the rectory of M. with the
vicarage of S. and the rectory of K. were
united into one benefice for ecclesiastical pur-
poses, the defendant, incumbent of M.-cum-
S., being presented to the rectory of K. : —
Held, that the testator having used " plu-
rality," which was a technical expression in-
volving the holding of a benefice by some
clergyman who at the same time holds one
or more other benefices, the rector of the one
united parish or benefice was not holding in
plurality, and the event contemplated by the
condition of defeasance had not arisen. Mac-
namara. In re; Heioitt v. Jeans, 104 L. T.
771; 55 S. J. 499— Eve, J.
Legacy to Pay off Debt on Church and
Schools — Legacy Exceeding Debt — General
Charitable Purposes.] — J. C. bequeathed to
Father W. of St. A., for his own use, lOOL,
and to the same Father W. or to the priest
in charge for the time being of the said church,
to pay off the debt on the church and boys'
schools " of St. A., 5001. payable in one sum
or five annual instalments. At the date of
the testator's will there was a mortgage debt
of 2001. on the church, but at the date of his
death there was a debt of 63Z. on the schools
only : — Held, that the bequest of 500Z. was for
a general charitable purpose of maintaining
the church and schools and valid in respect of
the amount not required for the particular
purpose of paying off the debt. Connolly, In
re; Walton v. Connolly, 110 L. T. 688—
Eve, J.
Historic Interest.] — The National Trust
for places of historic interest or natural beauty
is a charity. Tests in Income Tax Commis-
sioners V. Pemsel (61 L. J. Q.B. 265; [1891]
A.C. 53) and Foveaux, In re; Cross v. London
A nti- Vivisection Society (64 L. J. Ch. 856;
[1895] 2 Ch. 501) satisfied. Verrall, In re,
60 S. J. 141— Astbury, J.
Bequest to "General" of Salvation Army
— Corps Purposes — Religious Branch of
Army.] — A testatrix by her will directed her
trustee to stand possessed of the residue of
her estate in trust for the " General " of the
Salvation Army for the time being, to be used
for corps purposes in Liverpool : — Held, that
the gift of residue was a good charitable be-
quest, as the evidence shewed that " corps pur-
poses " meant the purposes of the religious
branch of the Army. Fowler, In re; Fowler
V. Booth. 31 T. I,. R. 102— r,. A.
Community of Friars — Absolute Bequest —
Yalidity — Gift to Individuals — Public Policy.]
— Bequest of residue of proceeds of conversion
of realty and personalty " in trust for the
society or institution known as the Franciscan
Friars of Clevedon in the county of Somerset
absolutely " : — Held, first, an immediate
absolute bequest to the several members of the
community of Franciscans at Clevedon at the
date of the testator's death ; and secondly, that
the policy of the Roman Catholic Relief Act,
1829, ss. 28 to 37, which is aimed at the
suppression of religious orders of the Church
of Rome in this country, has no operation upon
such a bequest. Cocks v. Manners (40 L. J.
Ch. 640; L. R. 12 Eq. 574) followed. Sims v.
Quinlan (16 Ir. Ch. Rep. 191; 17 Ir. Ch.
Rep. 43), and other Irish cases, considered.
Smith, In re; Johnson v. Bright-Smith,
88 L. J. Ch. 687 ; [1914] 1 Ch. 937 ; 110 L. T.
898 ; 58 S. J. 494 ; 30 T. L. R. 411— Joyce, J.
" City Mission cause in London " —
Whether Valid.] —A legacy to "The City
Mission cause in London " was a legacy for
the cause of Christian missions in London,
and was valid as a charitable gift, and, there
being no objection by the Attorney-General,
that the legacy should be paid to the London
City Mission. Hall, In re; Hall v. Hall,
31 T. L. R. 396— Eve, J.
Gift to Secular Society.] — A testator
bequeathed the residue of his estate to a
society called the Secular Society, which was
registered as a limited company, the memo-
randum of association stating that one of its
objects was to promote the principle that
human conduct should be based upon natural
knowledge and not upon supernatural belief,
and that human welfare in this world was the
proper end of all thought and action. There
169
CHAEITY.
170
was nothing to shew that the rule against
perpetuities was infringed : — Held, that as
there was nothing subversive of morality or
contrary to law in the memorandum or articles,
the gift was valid. Bowman, In re ; Secular
Society v. Bowman, 85 L. J. Ch. 1 ; [1915]
2 Ch. 447; 59 S. J. 703; 31 T. L. K. 618— C.A.
To Found Scholarship — According to Scheme
"or as near as may be" — Undesirable Con-
dition — Discretion of Legatees.] — A testator
gave a legacy to two institutions to be applied
according to, " or as near as may be," in the
discretion of the legatees to a scheme for
the founding of a scholarship. The legatees
refused to accept the legacy unless certain
modifications were made in the scheme : —
Held, that the legacy should be applied as
nearly in accordance with the scheme in the
will as the legatees might think desirable.
Harrison, In re; Harrison v. Att.-Gen.,
85 L. J. Ch. 77; 113 L. T. 308; 31 T. L. K.
398— Eve, J.
Maintenance of House of Residence for
Ladies of Limited Means — Poverty,] — A
testatrix by her will, made in 1900, bequeathed
her residuary estate upon trust to sell such
portions thereof as the trustees in their discre-
tion should think necessary or desirable " for
the maintenance of a temporary house of
residence for ladies of limited means " : —
Held, that there was a good charitable bequest
of so much of the estate as should be necessary
and such further portion as in the discretion
of the trustees might be desirable for the main-
tenance of a home for ladies of limited means.
Gardom, In re; Le Page v. Att.-Gen., 83 L. J.
Ch. 681; [1914] 1 Ch. 662; 108 L. T. 955—
Eve, J.
Charitable Institutions for Benefit of
Women and Children — No Express Power of
Selection — Uncertainty.] — A testator directed
his trustees "' to pay over the balance or residue
of my estates to and for behalf of such charit-
able purposes as I may think proper to name
in any writing, however informal, which I
may leave ; but failing my leaving such writ-
ings, then to such charitable institutions or
societies which exist for the benefit of women
and children requiring aid or assistance of
whatever nature, but said institutions and
societies to be under the management of Pro-
testants." The testator died without leaving
any such writing : — Held, that the bequest of
residue was not void for uncertainty, in respect
that its object was charitable, and that the
description of the beneficiaries was sufficiently
definite to enable the trustees to exercise a
power of selection which must be held to have
been impliedly conferred upon them. Wonhe's
Trustees v. iVordie, [1915] S. C. 310— Ct. of
Sess.
Bequest to " Ormond Home for Nurses" —
Maternity Nurses for Poor People — Home
Carried on by Testatrix — Fees Received from
Patients and Pupils — Charitable Intent —
Validity.]— By her will the testatrix gave a
bequest to the " Ormond Home for Nurses,"
and directed that, if necessary, a committee
of management should be formed to carry on
the home. The Ormond Home for Nurses
was a private residence which the testatrix
used as a home for midwives and for training
midwives. The testatrix and the nurses
under her charge attended maternity cases
among the working classes for a small fee.
The testatrix also received pupils, who paid
her a fee, and for whom she provided
lectures. The testatrix maintained the home
out of her own income of 30L per annum,
together with the sums she received from
patients and pupils : — Held, that the bequest
was a good charitable bequest. Webster, In
re; Pearson v. Webster, 81 L. J. Ch. 79;
[1912] 1 Ch. 106; 105 L. T. 815; 56 S. J. 90
— Joyce, J.
Education of Testator's Relations.] — A
testator bequeathed to St. J. College, Tuam,
the sum of 600L, the interest on which was
to go for ever towards the education of his
relations in that college, preference to be given
to the most eligible and best conducted, the
selection to be given to the archbishop for the
time being, to a conscientious layman, and
to the parish priest of the boys to be con-
sidered. There were no trustees of St. J.
College, nor any deed of foundation. The
affairs of the college were managed by a
council : — Held, that the bequest was a valid
charitable bequest. Att.-Gen. v. Sidney Sussex
College (38 L. J. Ch. 656; L. R. 4 Ch. 722)
followed. Lavelle, In re; Concannon v. Att.-
Gen., [1914] 1 Ir. R. 194— M.R.
Tomb, Trust to Repair — Gift 0¥er.] — A
bequest of income to the vicar of a parish and
his successors, with a direction that the testa-
tor's grave should be kept in repair, and a
gift over upon failure to comply with this
direction, is a valid gift as an accretion to the
endowment of the living. Tyler, In re ; Tyler
V. Tijler (60 L. J. Ch. 686; [1891] 3 Ch. 252),
followed. Davies, In re; Lloyd v. Cardigan
County Cou7icil, 84 L. J. Ch. 493; [1915]
1 Ch. 543; 112 L. T. 1110; 79 J. P. 291;
13 L. G. R. 437; 59 S. J. 413— Neville, J.
Trust " for the protection and benefit of
animals."] — A bequest of a fund upon trust
" for the protection and benefit of animals,"
to be applied for their use as the trustee should
think fit, two particular methods of doing so
being indicated by the donor — namely, the
humane slaughtering of animals and the provi-
sion of municipal abattoirs : — Held, a good
charitable trust. Wedgivood, In re; Allen v.
Wedgwood, 84 L. J. Ch. 107; [1915] 1 Ch.
113; 112 L. T. 66; 59 S. J. 73; 31 T. L. R.
43— C.A.
Society for Benefit of Animals — Cats'
Home.] — A testatrix bequeathed to the Com-
missioners of Charitable Donations and Be-
quests 4,000/. New Consols " upon trust to
apply the income for the exclusive mainten-
ance of the D. home for starving and forsaken
cats . . . including the maintenance of the
chloroform chamber now existing, or any other
painless method of putting an end to cases of
hopeless suffering, and the maintenance of
the boarding department, but for no other pur-
pose, as the D. Society for the Prevention of
171
CHAEITY.
172
Cruelty to Animals are bound, under deed
... to provide for rent, taxes, repairs, care-
taker's wages, and all other expenditure " : —
Held, that the bequest in favour of the home
for starving and forsaken cats vpas a valid
charitable gift. Sioifte v. Att.-Gen. for
Ireland (No. 2), [1912] 1 Ir. R. 13^-
Barton, J.
Angling and Preservation Society.] — A gift
to a society having for its immediate object
the preservation and improvement of angling
in certain parts of the river Thames for the
benefit of its members, — Held, not to be a
good charitable bequest, although some bene-
fit might enure from its operations to the
public generally. Clijford, In re; Mallam v.
McFie, 81 L. J. Ch. 220; 106 L. T. 14;
56 S. J. 91 ; 28 T. L. R. 57— Swinfen Eady, J.
" Purposes of healthy recreation."] — A
testator directed that the balance of the in-
come of his estate should be applied by his
trustees " for the purpose of fostering, en-
couraging and providing the means of healthy
recreation, including the teaching of singing in
classes or choruses for the residents of the
town of P. and the surrounding districts, and
for the purpose of providing music and instru-
ments (in so far as my trustees think advis-
able) for the town band, in such manner and
form as my trustees in their absolute discre-
tion consider best, but in no case shall my
trustees pay away any moneys derived out
of my estate for prizes for football or rowing
for speed " : — Held, that this was a valid
charitable bequest. Shillington v. Portadown
Urban Council, [1911] 1 Ir. R. 247—
Barton, J.
Charitable Bequest — Validity — Gift to
School for the Erection of Fives Courts.] — A
gift to the governing body of a school, which
is admittedly a charity, " for the purpose of
building Eton fives courts or squash racket
courts or for some similar purpose," is a good
charitable bequest. Mariette, In re; Mariette
V. Aldenham School, 84 L. J. Ch. 825; [1915]
2 Ch. 284; 59 S. J. 630: 31 T. L. R. 536—
Eve, J.
Gift to Provide a Prize for School Sports.]
— A gift to the head master of a school for the
time being to provide a prize for some event
in the school athletic sports is also a good
charitalile bequest. lb.
Considerations Affecting.] — In considering
whether a gift to a charity is charitable one
must have regard not only to the character of
the gift, but also to the character and objects
of the charity which is the recipient of the
gift. lb.
III. ADMINISTRATION OF CHARITIES.
See also Vol. III. 287. 2249.
Scheme — Practice — Parties — Metropolis —
Burial Ground — Land Purchased out of
Ecclesiastical Funds — Leases of Unconse-
crated Portion — Application by Rector and
Churchwardens for Scheme — Ecclesiastical or
Secular Purposes — City Council — Leave to
Intervene before Order for Scheme — Proper
Person to Represent Secular View.] — Where
trustees of a charity apply to the Court by
originating summons for a scheme and make
the Attorney-General a party, that is a pro-
perly constituted proceeding, and no applica-
tion to be added as a party ought to be listened
to before an order has been made for the
scheme. Hyde Park Place Charity, In re,
80 L. J. Ch. 593; [1911] 1 Ch. 678; 104 L. T.
701; 75 J. P. 361; 9 L. G. R. 887— C.A.
In 1757 land was purchased by the vestry
of St. George, Hanover Square, out of eccle-
siastical funds, for a burial ground, and was
by a private Act vested in the rector and
churchwardens of the parish for the use and
benefit of the inhabitants thereof. Part of
the land was used as a burial ground and the
same was closed in 1854 by an Order in
Council. The unconsecrated portion was let
on long building leases, on the expiration of
which fresh leases were granted and new
buildings were erected. Under the Burial
Act, 1857, the surplus income was to be ap-
plied for the benefit of the parish as the
vestry should direct. The Council of the
City of Westminster, as the successors of the
vestry under the London Government Act,
1899, brought an action against the rector
and churchwardens of the parish, in which
it was ultimately decided by the House of
Lords {St. George, Hanover Square (Rector)
V. Westminster Corporation, 79 L. J. Ch. 310;
[1910] A.C. 225) that the land was Church
property and that no rights or interest in
respect of the property passed to the city
council under the Act of 1899. The House,
however, deliberately refrained from deciding
for which purposes the income of the property
was applicable. An originating summons was
thereupon taken out by the rector and church-
wardens, to which the Attorney-General alone
was a respondent, for the establishment of a
scheme for the administration of the charity
trusts. Before any order was made the city
council applied by summons for liberty to
intervene in the proceedings to contend that
the purposes for which the charity was applic-
able were secular and not ecclesiastical pur-
poses : — Held, that the application of the city
council was premature and must be dismissed.
Warrington, J., expressed the opinion that
when the time arrived for the determination
of the question raised the city council would
not be the proper person to represent the
secular view ; but the Court of Appeal decided
that that point must be left entirely open. 7b.
School — Grant of Land for Purposes of
School to be Conducted According to Princi-
j pies of Church of England — Use as Sunday
! School — Discontinuance as Weekday School —
Power of Trustees to Let School.] — Land was
conveyed in 1867, under the authority of the
School Sites Act, 1841, to the minister and
chapel wardens of C, upon trust to permit the
land and buildings to be erected thereon to be
for ever appropriated and used as and for a
school for the education of children and adults
of the poorer classes of the district, and for no
other purpose. School buildings were erected
and a school was carried on as a public elemen-
173
CHAEITY.
174
tary school till 1905, when it was closed by
reason of the inability of the trustees to satisfy
the requirements as to repairs and improve-
ments. In an action for the administration
of the trusts affecting the school and for a
scheme for the regulation and management of
the charity, a scheme was prepared by the
Attorney-General which provided that the
buildings should be used in the first instance
for Church of England educational purposes,
and that so far as they were not used for such
purposes they should be used for educational
purposes of a secular and strictly undenomina-
tional character. On objection by the trustees,
Swinfen Eady, J., modified the scheme by
giving the trustees power to let the buildings
and apply the net receipts for church edu-
cational purposes. The Attorney-General
appealed : — Held (Buckley, L.J.. dissenting),
that the order appealed against should be dis-
charged, and that subject to certain modifica-
tions in form the scheme should be approved.
Att.-Gen. v. Price, 81 L. J. Ch. 317; [1912]
1 Ch. 667; 106 L. T. 694; 76 J. P. 209;
10 L. G. R. 416 : 28 T. L. E. 283— C. A.
Appeal settled by agreement, and form of
scheme for administration of educational
charity in connection with the Church of
England approved. Price v. Att.-Gen.,
83 L. J. Ch. 415: [1914] A.C. 20; 109 L. T.
7.57; 78 J. P. 1.53: 12 T.. G. R. 8.5— H.L. (E.)
Alteration of Objects of Charity — Lapse —
Continued Existence of Charity.] — A testatrix
by w^ill made in 1908 bequeathed a legacy " to
Mrs. Bailey's Charity, Rotherhithe." There
formerly existed a charity in Rotherhithe,
known as Hannah Bayly's Charity, founded
in 1756, the income of which was applicable in
providing pensions for widows in Rotherhithe.
In 1905, under a scheme of the Charity Com-
missioners, the endowments of Hannah Bayly's
Charity and thirteen other charities in Rother-
hithe were consolidated, and it was provided
that they should be administered by trustees
under the title of " the Consolidated Charities."
The income was to be applied for various
charitable purposes, including pensions for
poor persons in Rotherhithe, without mention-
ing widows as special objects of the trust : —
Held, that, notwithstanding the scheme of
1905, Hannah Bayly's Charity was not extinct
and the legacy had not lapsed, but took effect
although widows were no longer a special
object of this charitv. Faraker, In re ; Faraker
V. Durell, 81 L. J."Ch. 635; [1912] 2 Ch. 488;
107 L. T. 36; 56 S. J. 668— C.A.
Semble, no scheme of the Charity Com-
missioners can destroy an existing endowed
charity. 7b.
Attorney-General — Right to Appeal.] —
The Court gave leave to the Attorney-General
to appeal from the decision of Neville, J.,
although he was not a party to the proceedings
in the Court below. //).
Action against Unincorporated Charity —
Defendants.] — Where an unincorporated
charity is sued, the proper practice is to sue
a responsible official of the charity on its
behalf. Royal National Lifeboat Institution
V. Turver, 31 T. L. E. 340— Sargant, J.
Cy-pres — Legacy for Charitable Object —
Failure of Object — Lapse.] — A testator
directed his trustees in a certain event to apply
the residue of his estate " in founding, erect-
ing, and endowing in Paisley an industrial
school for females." At the date of the
testator's death it was open to a private
individual to found or to contribute to an
industrial school, but when the residue became
available the effect of supervening legislation
had been to make individual foundation or
contribution impossible. The trustees asked
for an order that they might administer the
fund under a cy-pres scheme : — Held, that, as
the terms of the bequest did not disclose any
general charitable intention, but only the
favouring of the particular object that had
failed, there was no room for the application
of the doctrine of cy-pres, and that the bequest
had accordingly lapsed. Burgess's Trustees v.
Crawford, [1912] B. C. 387— Ct. of Sess.
Gift to Named Institution — Institution
Ceasing at Death of Testatrix — General
Charitable Intention.] — A testatrix bequeathed
her property to the Ormond Home for Nurses,
an institution founded and controlled solely by
herself for nursing the working classes. The
institution charged small fees, payable by
instalments, and was entirely self-supporting.
On the death of the testatrix the work ceased
to be carried on, and the premises were dis-
posed of : — Held, that the bequest was for the
continuance of the work carried on by the
home, which was a charitable work, and was
therefore a good charitable gift, for the
purposes of which there must be a scheme
cy-pres. Webster, In re ; Pearson 'w. Webster,
81 L. .J. Ch. 79; [1912] 1 Ch. 106; 105 L. T.
815; 56 S. J. 90— Joyce, J.
Annuity — Express Purpose — Lapse.] —
A testatrix bequeathed a leasehold house to
trustees to be used for the widows and orphan
daughters of the clergy. She then gave her
real and personal estate to trustees upon trust
{inter alia) to pay three annuities, one being to
the treasurer of a named charitable society
" for the maintenance and expenses of main-
taining " the above house for the purpose
named ; then followed a gift over to other
charities " after the final expiration of the
aforesaid trusts." At the testatrix's death the
house was used as a home for the widows and
orphans of the clergy, but within a year of her
death the house was sold by the trustees in
accordance with the Mortmain and Charitable
Uses Act, 1891, and the home was subse-
quently discontinued : — Held, that the annuity
was still subsisting, that there was a general
charitable intention, and the annuity was
applicable to general charitable purposes
according to the doctrine of cy-pres. Slevin,
In re; Slevin v. Hepburn (60 L. J. Ch. 439;
[1891] 2 Ch. 236), and Mann, In re; Hardy v.
Att.-Gen. (72 L. J. Ch. 150; [1903] 1 Ch. 232),
applied. Cunningham, In re; Dulcken v.
Cutiningham, 83 L. J. Ch. 342; [1914] 1 Ch.
427; 110 L. T. 371— Astbiiry, J.
Impracticability of Particular Object —
No General Charitable Intention — Lapse.] —
On the construction in a will of a charitable
175
CHAKITY.
176
gift for a particular purpose, which purpose
it was impracticable to carry out, — Held, that
there was no paramount intention shewn in
the will to benefit any particular class of
charitable objects, and that, inasmuch as the
particular directions given in connection with
the gift failed, the gift itself failed, and no
scheme should be directed. Biscoe v. Jackson
(56 L. J. Ch. 93, 540; 35 Ch. D. 460) discussed
and distinguished. Wilson, In re; Twenty-
man V. Simpson, 82 L. J. Ch. 161; [1913]
1 Ch. 314; 108 L. T. 321; 57 S. J. 245—
Parker, J.
Principles applying to the construction of
bequests for charitable purposes which fail
stated. 7b.
Preference of Scottish Charity.] — A
Scottish testatrix left a legacy to a Scottish
society for the prevention of cruelty to animals
"to be devoted by them specially towards the
total and absolute prohibition of vivisection."
The society, finding it impossible, owing to
differences of opinion w"ithin their body on
the subject of vivisection, to administer the
legacy themselves, petitioned the Court for
approval of a scheme whereby it was proposed
that the trust funds should be paid over in
equal shares to two anti-vivisection societies,
one Scottish and the other English. The Court
amended the scheme by excluding the English
society, and approved a scheme for the paying
over of the whole funds to the Scottish society.
Mirrlees' Charity, In re (79 L. J. Ch. 73;
[1910] 1 Ch. 163), commented on. Glasgow
Society for Prevention of Cruelty to Animals
V. National Anti-Vivisection Society, [1915]
S. C. 757— Ct. of Sess.
Charitable Purposes in Existence at
Testator's Death — Specific Purposes Ceasing
to Exist before Distribution of Estate.] —
Where a gift is left by will to trustees to apply
the income for charitable purposes which are
in existence at the death of the testator, but
the specific purposes cease to exist before it is
paid over, the gift is applicable to charitable
purposes, cy-pres. Geikie, In re; Robson v.
Paterson, 27 T. L. E. 484— Neville, J.
Voluntary Charitable Society — Applica-
tion of Surplus Income — Discretion of
Governors.] — On a petition for the approval
of the Court, under the Imprisoned Debtors
Discharge Society's Act, 1856, to the applica-
tion of a certain part ol the society's income by
way of donation to ninety charitable institu-
tions, Parker, J., declined to sanction the
projiosed application on the ground that it
frittered away the fund among too many
objects, and expressed the view that the
Court had to be satisfied on each occasion
that a proper cy-pre's application of the fund
was being made. On appeal, held, allowing
th(^ appeal, that under the Act of 1856 it was
not for the Court to say in the first instance
what institutions should be assisted by the
governors of the society, unless the Court
found that the application was in some way
corrupt or that assistance was being given to
an institu*^ion of such a nature that it could
not hav(> been intended by Parliament to be
aided ; tliat the practice wliich had been
adopted during many years, for the Judge to
whom the petition was presented to adopt
the institutions approved by his predecessors
and to enquire only as to the propriety of new
institutions proposed to be assisted, should be
followed ; and that the doctrine of cy-pris had
no application. Imprisoned Debtors Discharge
Society, In re, 56 S. J. 596; 28 T. L. E. 477
-C.A.
Scheme — Distributive Charities — Elee-
mosynary Gift — Increased Profits — Appor-
tionment.]— A gift to distribute a fixed sum
weekly in loaves to the poor, and " the residue
of the profits thereof, if any shall arise or grow
out of the said premises over and above the
said sum of two shillings weekly, the same to
be employed for or towards the charges of a
sermon once in every year to be made," must
be applied, first, in paying the fixed sum for
the purpose stated, and the residue, regardless
of its great increase, must be applied cy-pres
to the preaching of a sermon, and cannot be
apportioned between the two objects. Att.-
Gen. V. Pelly ; Avenon's Charity, In re,
106 L. T. 295 ; 56 S. J. 241— Parker, J.
IV. MOETMAIN ACTS.
See also Vol. III. 386, 2260.
Testator Domiciled in England — Mortgages
on Freeholds in Ontario — Movables or
Immovables — Impure Personality — Lex Rei
Sitae — Invalidity of Bequest.] — A testator who
died in 1888, domiciled in England, bequeathed
property, which included mortgages on free-
holds in Ontario, for charitable purposes. The
mortgages contained covenants to pay the
moneys thereby secured. At the date of the
testator's death the Charitable Uses Act, 1735,
then in force, extended to Ontario, and would
admittedly have invalidated the bequest of the
mortgages had the testator been domiciled
there -.—Held (Fletcher Moulton, L.J., doubt-
ing), that mortgages on land are deemed to be
immovables and not movables, and governed
by the lex rei sitce, and that therefore the
bequest of the mortgages was a gift of impure
personalty and was invalid. Jerningham v.
Herbert (6 L. J. (o.s.) Ch. 134; 4 Euss. 388)
and Fitzgerald. In re; Siirman v. Fitzgerald
(73 L. J. Ch. 436; [1904] 1 Ch. 573), applied.
Hoyles, In re ; Row v. Jagg, 80 L. J. Ch. 274 ;
[1911] 1 Ch. 179; 103 L. T. 817; 55 S. J. 169;
27 T. L. E. 131— C.A.
The terms " movable " and " immovable "
are not technical terms in English law,
though they are often used, and conveniently
used, in considering questions between English
law and foreign systems which differ from
that law. But where the two systems are
identical, qucerc whether the terms are appro-
priate— per Cozens-Hardy, M.E. The divi-
sion into movable and immovable property is
no part of the law either of England or of
Canada, and is only called into operation in
England when the English Courts liave to
determine rights between domiciled English-
men and persons domiciled in countries which
do not adopt the English division into real
and personal ])roi)erty — per Farwell, L.J. lb.
177
CHARITY— CINEMATOGRAPH.
178
Debentures Charged on Real and Personal
Property — Company's Leasehold Offices —
Apportionment — Quantum.] — A testator, who
died before the corning into operation of the
Mortmain and Charitable Uses Act, 1891, gave
so much of his residuary estate as might by
law be applicable to charitable legacies to two
charities. Part of his residuary estate con-
sisted of debentures in two Australian land
companies. In the case of one company the
debentures were charged on all the real and
personal property of the company at maturity,
and in the case of the other by way of floating
security on all its undertaking and all its
real and personal property. By Australian
law money charged on land can be validly
given to charities. At the testator's death the
only interests in land in England which the
companies possessed were leasehold offices of
no appreciable value : — Held, that the deben-
tures could not be given to charity as, being
charged upon the English leaseholds, they
were " an interest in land " within the Mort-
main and Charitable Uses Act, 1888; that the
doctrine of " de miynnus von curat lex " was
not applicable, and that there could be no
apportionment. Brook v. Badley (37 L. J.
Ch. 884; L. R. 3 Ch. 672) followed. HilVs
Trusts, hi re (50 L. J. Ch. 134 ; 16 Ch. D. 173),
overruled. Dawson, In re; Pattisson v.
Bathurst, 84 L. J. Ch. 476; [1915] 1 Ch. 626;
113 L. T. 19 ; 59 S. J. 363 ; 31 T. L. E. 277
— C.A.
Decision of Neville, J. (84 L. J. Ch. 187;
[1915] 1 Ch. 168), affirmed. 76.
Private Act — Statutory Trust.] — A
private Act will not set aside the provi-
sions of the Mortmain and Charitable Uses
Acts, 1888 and 1891, unless language is used
in the private Act which makes the appli-
cation of those Acts impossible. Webster v.
Soutkey (56 L. J. Ch. 785; 36 Ch. D. 9|
followed. Verrall. In re, 60 S. J. 141—
Astburv. J.
The National Trust Act, 1907, s. 21, sub-s. 2,
was inconsistent with and overrode the pro-
visions of the Mortmain and Charitable Uses
Act, 1891. by which land acquired by will by
a charity must be sold in twelve months, but
that did not exonerate tlie trustees from com-
plying with the terms of the Mortmain and
Charitable Uses Act, 1888, relating to con-
veyances inter vivos. Robinson v. London
Hospital (22 L. J. Ch. 754; 10 Hare, 19)
applied. 76.
CHARTERPARTY.
See SHIPPHsTi.
CHILDREN.
See CRIMINAL LAW; INFANT; IN-
SURANCE (LIFE) ; INTOXICATING
LIQUORS.
CHEQUE.
See BILL OF EXCHANGE.
CHURCH.
See ECCLESIASTICAL LAW.
CINEMATOGRAPH.
Licence — Renewal — Application by Com-
pany — Enemy Nationality — Licensing
Authority — Discretion to Refuse Renewal. t —
Where an application is made by a limited
company for the renewal of a music licence
under the Disorderly Houses Act, 1751, or for
the renewal of a cinematograph licence under
the Cinematograph Act, 1909, the licensing
authority have a discretion to refuse the
renewal on the ground that some of the direc-
tors and the majority of the shareholders are
alien enemies. Rex v. London County
Comicil ; London and Provincial Electric
Theatres, Ex parte, 84 L. J. K.B. 1787 ; [1915]
2 K.B. 466; 113 L. T. 118; 79 J. P. 417;
13 L. G. R. 847 ; 59 S. J. 382 ; 31 T. L. R. 329
— C.A.
Decision of the Divisional Court (31 T. L. R.
249) affirmed. 75.
Company Owners of Theatre — Licence to
manager — Appointment of New Manager —
No Transfer of Licence — "Occupier" of
Premises.] — The manager of a cinematograph
theatre, owned by a limited liability com-
pany, is not, by virtue of his position as their
manager, the " occupier " of the premises
within the meaning of section 3 of the Cine-
matograph Act, 1909. Bruce v. McManus.
84 L. J. K.B. 1860; [1915] 3 K.B. 1;
113 L. T. 332; 79 J. P. 294; 13 L. G. R. 727 ;
31 T. L. R. 387— D.
A licence under the Cinematograph Act,
1909, to use a picture theatre for the purpose
of giving cinematograph exhibitions was
granted to the manager of the theatre in the
employment of a limited company, the owners
of the theatre. Their name appeared in the
poor rate book as occupiers of the theatre.
Afterwards the appellant was appointed by
t!ie company as their manager of the theatre
in lieu of the licensee, and he for a certain
period superintended the cinematograph exhibi-
tion without having the licence transferred
to him. An information was preferred 'against
iiim for that, being the occupier of the premises
I the theatre) he during the aforesaid period
unlawfully allowed them to be used, in con-
travention of the Act, for an exhibition of
pictures by means of a cinematograph without
having first obtained a licence for some person
so to use the said premises, and he was
179
CINEMATOGEAPH.
180
convicted and fined : — Held, on appeal, that
he was not the " occupier " of the premises
within the meaning of section 3 of the Act,
and that the conviction must be quashed. lb.
Condition in Licence Prohibiting Open-
ing on Sundays — Power of Licensing
Authority to Impose Conditions.] — A county
council in issuing a licence under section 2 of
the Cinematograph Act, 1909, authorising the
user of premises for the purpose of exhibiting
pictures by means of a cinematograph, is en-
titled to insist that the licence shall contain
a condition prohibiting the opening of the
premises on Sundays, Good Friday, and
Christmas Day. London County Council v.
Bermondseij Bioscope Co., 80 L. J. K.B. 141;
[1911] 1 K.B. 445; 103 L. T. 760; 75 J. P.
53; 9 L. G. R. 79; 27 T. L. E. 141— D.
Restrictive Condition — Power of Licens-
ing Authority.! — A licensing authority under
the Cinematograph Act, 1909, has no power,
in granting a licence, to impose on the
licensee a condition that no child under four-
teen years of age shall be allowed to enter
into or be on the licensed premises after nine
o'clock in the evening unaccompanied by a
parent or guardian, and that no child under
ten years of age shall be allowed on the
licensed premises under any circumstances
after that hour — per Lush, J., and Eowlatt, J.
(Atkin, J., dissenting). Halifax Theatre de
Luxe V. GledhiU, 84 L. J. K.B. 649; [1915]
2 K.B. 49; 112 L. T. 519; 79 J. P. 238;
13 L. G. R. 541 ; 31 T. L. R. 138— D.
By section 1 of the Cinematograph Act, 1909,
the exhibition of pictures by means of a cine-
matograph for the purposes of which inflam-
mable films are used is prohibited unless
{inter alia) it is given in premises licensed
under the Act. By section 2, sub-section 1,
a county council may grant licences to such
persons as they think fit to use the premises
specified in the licence for the purposes afore-
said, on such terms and conditions as the
council may determine. A licence was granted
to the respondents to use certain premises
"for public cinematograph or other similar
exhibitions to which the Cinematograph Act,
1909, applies " upon each weekday (with
certain specified days excepted). Attached to
the licence was a condition that the premises
should not be opened for cinematograph or
other exhibitions on Sunday. The respondents
gave an exhibition on Sunday at which non-
inflammable films were used, the audience
present on that occasion having paid for
admission. In proceedings against the respon-
dents for breach of the condition subject to
which the licence was granted, — Held, that,
although no licence was required under the
Cinematograph Act, 1909, for an exhibition at
which non-inflammable films were used, a
condition attached to a licence granted under
section 2 was not ultra vires by reason of the
fact that it prohibited the use of the licensed
premises on a particular day, irrespective of
the character of the films used ; nor because in
the case of a six-day licence it prohibited the
use of the premises upon Sunday, to which day
the licence did not extend. Ellis v. North
Metropolitan Theatres, 84 L. J. K.B. 1077;
[1915] 2 K.B. 61; 112 L. T. 1018; 79 J. P.
297 ; 13 L. G. R. 735 ; 31 T. L. R. 201— D.
Regulations — Obstructions to Gangways
Leading to Exits — Persons Standing in Gang-
ways— Persons Present not Exceeding Num-
ber for which Theatre was Licensed.]— Under
section 1 of the Cinematograph Act, 1909, "An
exhibition of pictures ... by means of a
cinematograph . . . shall not be given unless
the regulations made by the Secretary of State
for securing safety are complied with." The
regulations made by the Secretary of State
provided that " the gangways and the stair-
cases, and the passages leading to the exits,
shall, during the presence of the public in
the building, be kept clear of obstruction."
All the seats for which the respondent's cine-
matograph theatre was licensed had not been
installed. At a certain performance a number
of persons were standing in the gangways
and passages, so that persons going to or
from seats had to pass through them, but
the number of persons present did not exceed
the number for which the theatre was licensed :
— Held, that the persons standing in the
gangways and passages leading to the exits
constituted an obstruction within the meaning
of the regulations, and the fact that if the
theatre had contained all the seats for which
it was licensed all the people present could
have been seated was no answer to the charge.
Potter V. Watt, 84 L. J. K.B. 394; 112 L. T.
508; 79 J. P. 212; 13 L. G. R. 488;
31 T. L. R. 84— D.
"Inflammable" Films.] — Senible, the word
" inflammable " in reference to films as used
in the Cinematograph Act, 1909, is not limited
to films which are inflammable only while be-
ing used in a cinematograph. Victoria Pier
Syndicate v. Reeve, 76 J. P. 374 ; 10 L. G. R.
967 ; 28 T. L. R. 443— D.
Unlicensed Premises — Dealer or Manufac-
turer— Display to Prospective Customers
only.] — The Cinematograph Act, 1909, s. 1,
provides that an exhibition of pictures by
means of a cinematograph for the purposes of
which inflammable films are used, shall not
be given unless the regulations made by the
Secretary of State for securing safety are com-
plied with, or, save as expressly provided for
by the Act, elsewhere than in premises licensed
for the purpose in accordance with the provi-
sions of the Act : — Held, that the statute does
not apply to cases where a dealer or manufac-
turer in the exercise of his trade runs films
through a cinematograph machine in the
presence of prospective customers. Att.-Gen.
V. Vitagraph Co., 84 L. J. Ch. 142; [1915]
1 Ch. 206; 112 L. T. 245; 79 J. P. 150;
13 L. G. R. 148; 59 S. J. 160; 31 T. L. R. 70
— Astbury, J.
Constable or any other Oflicer Appointed by
a County Council — Right of Entering Building
— " Reason to believe " that the Act was being
Infringed — Alleged Trespass.] — Section 4 of
the Cinematograph Act, 1909, provides that
" a constable or any officer appointed for the
purpose by a county council, may at all
181
CINEMATOGRAPH— COALS.
182
reasonable times enter any premises whether
licensed or not, in which he has reason to
believe that such an exhibition as aforesaid "
(that is, one in contravention of the provisions
of the Act or regulations made thereunder)
" is being, or is about to be, given, with a
view to seeing whether the provisions of this
Act, or any regulations made thereunder and
the conditions of any licence granted under
this Act have been complied with, and if any
person prevents or obstructs the entry of a
constable or any officer appointed as aforesaid,
he shall be liable, on summary conviction, to
a penalty not exceeding 20L" The plaintiff
was the proprietor of premises which were
not licensed for cinematograph exhibitions,
and, therefore, inflammable films could not
lawfully be exhibited. He alleged that the
police resorted to the building not with the
bona fide object of seeing whether the provi-
sions of the Cinematograph Act were being
infringed, but for the purpose of getting him
convicted for not having a music licence. In
an action against the police for trespass he
was awarded lOOL damages : — Held (while
ordering a new trial on the grounds that the
verdict of the jury was against the weight
of evidence and that there was misdirection),
that the word " constable " in the above
section meant any police constable, and not
merely a constable or other officer appointed
by the local authority, and that where a
constable enters the premises with a view of
seeing whether the provisions of the Cinema-
tograph Act, or regulations made under it,
are being contravened the requirements of the
Act are complied with, and the fact that he
tnay have entered for other purposes also does
not make the entry a trespass. McVittie v.
Turner, 85 L. J. K.B. 23; 13 L. G. R. 1181
-C.A.
Exhibition of Film — Condition — Justices'
Riglit to Prohibit — Interest of Party other than
Licensee — Refusal of Certiorari.] — A cinemato-
graph licence was granted by Justices and
accepted by the licensee, subject to a condition
that no film should be exhibited at the theatre
if notice had been given to the licensee that
the Justices objected to it. The applicants,
who had the sole right of exhibiting a certain
film in the district, agreed to let the film be
(exhibited at the theatre for a week, and the
cinematograph committee of the Justices
having viewed the film gave notice to the
theatre manager that they objected to it
and it must not be produced. The applicants
thereupon applied for a rule yiisi for a certiorari
to quash the Justices' order prohibiting the
exhibition of the film : — Held, that as the
applicants had no interest entitling them to
make the application, and as the evidence did
not establish that the film was of so innocent
a nature that no Justices exercising an honest
jurisdiction could object to it, the application
must be refused. Stott, Ex parte, 32 T. L. R.
84— D.
Whether Licensing Authority have Power
to State Case — Power of County Council
Delegated to "Justices sitting in petty
sessions."] — County Councils and, in the
case of county boroughs, borough councils
are empowered by section 2 of the Cine-
matograph Act, 1909, to license premises
for the purpose of cinematograph exhibitions.
By section 5 of that Act county councils or
borough councils are empowered to delegate
the powers conferred upon them by the Act
to Justices sitting in petty sessions : — Held,
that Justices sitting in petty sessions for the
purpose of exercising the powers delegated to
them under section 5 of the Cinematograph
Act, 1909, are not a Court of summary juris-
diction, and therefore have no power to state
a Case for the opinion of the High Court
Boulter v. Kent Justices (66 L. J. Q.B. 787 ;
[1897] A.C. 446) followed. Huish v. Liver-
pool Justices, 83 L. J. K.B. 133; [1914]
1 K.B. 109; 110 L. T. 38; 78 J. P. 4-5;
12 L. G. R. 15; 58 S. J. 83; 30 T. L. R. 25
— D.
Copyright in Films — Infringement.] — See
Copyright.
CLUB.
See also Vol. III. 445, 2265.
Expulsion of Member — Quasi-judicial Func-
tions of Committee — Proper Application of
Rules— Right of Member to be Heard.]— The
committee of a club, having power to expel
a member whose conduct should be injurious
to the character and interests of the club, pur-
ported to expel a member on the ground that
he had failed to pay certain fines with punc-
tuality. It was proved at the trial that the
real reason of the expulsion was the alleged
failure on the part of the member to comply
with a rule requiring that no debts should be
incurred at the club. The member was not
invited to be present when the committee con-
sidered his case : — Held, that the committee
of a club is bound to exercise its powers in a
judicial manner, and that the ostensible reason
for the expulsion of a member must be the real
reason. Held, further, that a member has a
right to have his case heard by the committee
of a club before they come to a decision against
him. D'Arcy v. .'Idamson, 57 S. J. 391;
29 T. L. R. 367— Warrington, J.
Registration of.
Liquors.
— See Intoxicating
COALS.
See also Vol. III. 453.
Sale — Non-provision of Perfect Weighing
Machine in, on, or under Waggon — Whether
Provisions of Coal Duties Acts as to Vending
of Coal still in Force — Abolition of Coal
Duties.]— Section 52 of 1 &: 2 \Yill. 4. c. Ixxvi.
(as amended by section 5 of 1 it 2 Yict. c. ci.),
which requires every waggon used for the
delivery of coal to a purchaser in the Cities of
London and Westminster and within twenty-
183
COALS— COLONY.
184
five miles of the General Post-Office to be pro-
vided with a perfect weighing machine, is still
in force, inasmuch as, being a permanent pro-
vision of the Act, it is not affected by the
erroneous recital and enactment in section 1
of 1 & 2 Vict. c. ci., and in the subsequent
Acts recited in the London Coal Duties Aboli-
tion Act, 1889. Houghton v. Fear, 82 L. J.
K.B. 650; [1913] 2 K.B. SiS; 109 L. T. 177;
77 J. P. 376; 11 L. G. R. 731; 23 Cox C.C.
491 ; 29 T. L. R. 110— D.
By-law — Not Carrying Scales and Weights
— " Carrying coal for sale " — Coals for
Delivery.] — A by-law made by a local
authority under the Weights and Measures
Act, 1889, provided that " the person in charge
of every vehicle carrying coal for sale shall
carry therewith a weighing instrument of a
form approved by the local authority, together
with correct weights," and a penalty was fixed
for contravention of the by-law : — Held, that
a person did not carry coal for sale within the
meaning of the by-law if be carried it for the
sole purpose of fulfilling specific orders pre-
viously given, even though there had been no
unconditional appropriation of specific coal to
the customers. Hunting v. Mattheivs,
108 L. T. 1019; 77 J. P. 331; 11 L. G. E.
723; 23 Cox C.C. 444 ; 29 T. L. E. 487— D.
CODICIL.
See WILL.
COLLIERY.
See MINES AND MINERALS.
COLLISION.
See SHIPPING.
COLONY.
I. Generally, 184.
II. Particular Colonies.
1. Australia.
a. Common wealtli of Australia,
h. New South Wales, 185.
c. South Australia, 189.
d. Victoria. 189.
e. Western Australia, 189.
2. British North America.
a. Dominion of Canada, 190.
b. Alberta, 199.
184.
c. British Columbia, 199.
d. New Brunswick, 203.
e. Nova Scotia, 203.
/. North- West Territories, 203.
g. Ontario, 204.
h. Quebec, 207.
3. Ceylon, 208.
4. Gold Coast, 211.
5. Guernsey, 212.
6. Hong-Kong, 212.
7. Malay States, 212.
8. Newfoundland, 213.
9. New Zealand, 214.
10. South African Colonies.
a. Cape of Good Hope, 216.
b. Natal, 216.
c. Transvaal, 217.
11. Seychelles, 218.
12. Straits Settlements, 218.
III. Appeals to Privy Council, 219.
I. GENERALLY.
See also Vol. III. 461, 2271.
Rights of Executive GoYcrnment.] — Where
the right to money is sub judice, and the
money is held in medio by the Court, the
Executive Government has no discretion to
dispose of such money without the order of
the Court, and the fact that no procedure
analogous to a petition of right exists in a
colony does not authorise the interference by
the Crown with private rights ; but where a
question of legal right is in doubt, the Execu-
tive Government should apply to the Court to
determine the question. Eastern Trust Co. v.
McKenzie, Mann £ Co., 84 L. J. P.C. 152;
[1915] A.C. 750; 113 L. T. 346— P.C.
II. PARTICULAR COLONIES.
1. Australia.
a. Commonwealth of Australia.
See also Vol. III. 2271.
Powers of Australian Legislature — Common-
wealth Parliament — States Legislatures.] —
The Royal Commissions Act, 1902-1912, is
ultra vires the Commonwealth Parliament of
Australia so far as it purports to enable a Royal
Commission to compel answers to questions, or
to order the production of documents, or other-
wise to enforce compliance with its requisitions.
Att.-Gen. for Australia v. Colonial Sugar
Refining Co., 83 L. J. P.C. 154; [1914] A.C.
237 ; 110 L. T. 707 ; 30 T. L. R. 203— P.C.
Before federation such powers were vested
in the Legislatures of the individual States,
and they have not been transferred to the
Commonwealth Parliament. lb.
Contract in Restraint of Trade — Illegality
— Injury to Public — Enhancing of Prices —
Evidence of Intention.] — A contract is not
an offence at common law, even if unenforce-
185
COLONY.
186
able, merely because it is in restraint of trade ;
to make any such contract or combination
unlawful it must amount to a criminal con-
spiracy. Att.-Gen. for Australia v. Adelaide
Steamship Co., 83 L. J. P.O. 84; [1913] A.C.
781; 109 L. T. 258; 12 Asp. M.C. 361;
29 T. L. R. 743— P. C.
A contract in restraint of trade which is un-
enforceable at common law is not necessarily
detrimental to the public within the meaning
of the Australian Industries Preservation Acts,
and the parties to such contract will not be
tiiken to have intended a detriment, either
because they intended to limit competition, or
to raise prices. lb.
An intention to charge excessive or un-
reasonable prices must be proved, and the onus
of shewing that any contract is calculated to
raise prices t.o an unreasonable extent lies on
the party alleging it. lb.
b. New South Wales.
See also Vol. III. 480, 2272.
Civil Servant — Retirement — Superannua-
tion Allowance.] — Under the Civil Service
Act, 1884, and the Public Service Act,
1895, of New South Wales, members of
the Civil Service have an absolute right to
retire upon the statutory superannuation allow-
ance provided by the Acts at any time after
attaining the age of sixty. Therefore, where a
member of the Civil Service was appointed
shortly after attaining the age of sixty to a
salaried office under the Crown which was
incompatible with his remaining in the ser-
vice,— Held, that on ceasing to be a member
of the service he became entitled as of right
to a superannuation allowance under the Acts,
and that this allowance was not in abeyance
while he held the other office to which he was
appointed, and that his position was not
affected by section 2, sub-section (d) of the
Public Service (Superannuation) Act, 1903.
Williams v. Deloliery, 82 L. J. P.C. 73;
[1913] A.C. 172; 107 L. T. 775; 29 T. L. R.
161— P.C.
Crown Lands — " Homestead grant " — Con-
version into "original conditional purchase"
— Residence by Applicant. 1 — For the purpose
of the provision for the reduction of residence
contained in section 3, sub-section 3 of the
Crown Lands Amendment Act, 1908, of New
South Wales, the term " applicant " does not
include the predecessors in title by successive
transfers of the person who actually applies for
the conversion of a " homestead grant " into
an " original conditional purchase " under the
Act. Walsh V. Alexander (16 Commonwealth
L. R. 293) not followed. Minister for Lands
V. Coote. 84 L. J. P.C. 112; [1915] A.C. 683;
112 L. T. 1098— P.C.
Rating — Land without Buildings —
Exemption from Rate — Betterment Charge
Imposed on Ratepayers — Sale by Crown —
Whether Purchasers Liable for Charge. 1 — By
the Sydney Corporation Act, 1879, the Crown
is rateable in respect of buildings in the city
of Sydney, but not in respect of lands on
which there are no buildings. By the Moore
Street Improvement Act, 1890, the corporation
was authorised to make certain improvements,
and part of the cost, in a proportion to be
determmed, was to be defrayed out of a
betterment charge, payable by such owners
of property within the improvement area as
were liable to the city rate. When the
assessment was made in 1891, certain lands
in the improvement area were the property
of the Crown, and there were no buildings
upon them. Afterwards the Crown sold
portions of these lands, and buildings were
subsequently erected thereon : — Held, that
under the Act of 1890 the assessment to the
betterment charge was to be made once for
all in accordance with the then existing facts,
and as the Crown was not then liable to the
charge the subsequent purchasers were not
liable to it either. Bank of Australasia v.
Sydney Municipal Council, 32 T. L. R. 147
—P.C.
Duties on Estates of Deceased Persons —
Rate of Duty — Aggregations of Estates not
Allowed.]— The Stamp Duties (Amendment)
Act, 1904, of New South Wales does not pro-
vide for any aggregation of estates of persons
deceased for the purpose of determining the
rate of duty. Therefore where a testator dies
leaving free estate, and also estate subject to
a special testamentary power of appointment,
such estates ought not to be aggregated for
the purpose of the assessment of duty as on the
death. Where a schedule provides for duties
the rate of which varies with " the total value
of the estate," these words must be taken to-
mean the total value of each estate chargeable,
not the total value of all the estates charge-
able. Brunton v. Commissioner of Stamp
Duties for New South Wales, 82 L. J. P.C.
139; [1913] A.C. 747; 108 L. T. 932;
29 T. L. R. 607— P.C.
Gift by Father to Sons — Presumptive Ad-
vancement— Trust — "Intent to evade pay-
ment of duty."] — A father made gifts of
property to his sons. There was no arrange-
ment or implied agreement between the father
and either of the sons. The father received
the rents and paid the rates and repairs : —
Held, on the evidence, that the transactions
were not colourable or made with intent to
evade duty ; but that they were out-and-out
gifts to the sons to the exclusion of any interest
to the father, and that the duty was not pay-
able. Grey v. Grey (2 Swanst. 594) followed.
Commissioner of Stamp Duties v. Byrnes,
80 L. J. P.C. 114 ; [1911] A.C. 386 ; 104 L. T.
515; 27 T. L. R. 408— P.C.
Government House — Crown Property —
Waste Lands — Dedication to Public Purpose
— Right of Colonial Government to Vary
Purpose — Information by Attorney-General.]
— A house and grounds in New South Wales,
the property of the Crown, had for many years
been used as a personal residence for the
Governor of the Colony. The Colonial Govern-
ment provided another residence for the
Governor, and proposed to throw open the
grounds of the former residence to the public,
and to use some of its buildings for public
purposes : — Held, that whether or not the
^' 187
COLONY.
188
house and grounds were " waste lands of the
Crown " within the Constitution Act, 1855,
B. 2, the Government had power to deal with
them without any legislative act, and that an
information by the Attorney-General asking
for a declaration and an injunction to restrain
them was incompetent. Att.-Gen. for New
South Wales v. Williams, 84 L. J. P.C. 92;
[1915] A.C. 573; 112 L. T. 785; 31 T. L. E.
171— P.C.
Income Tax — Assessment — "Taxable in-
come."]— In the assessment of income tax in
cases where there was no taxable income for
the year preceding the year of assessment, the
rule laid down in section 27 (vi.) of the Land
and Income Tax Assessment Act, 1895
(No. 15), is to be observed, and the taxable
amount is to be the total amount of " taxable
income " arising or accruing from all sources
during the year of assessment, except to the
extent of the exemptions provided by section 17
of the Act of 1895. Commissioners of Taxation
of New South Wales v. Adams, 81 L. J. P.C.
185; [1912] A.C. 384; 106 L. T. 307;
28 T. L. E. 263-P.C.
In order to ascertain the amount of taxable
income, section 27 of the Act of 1895 (No. 15)
is to be read as if section 3, sub-section 2 of
the Amendment Act of 1904 (No. 17) were
substituted for sub-section 1 of section 27 of
the Act of 1895. lb.
Land Compulsorily Taken by Crown — Com-
pensation— Value of Land — Elements to be
Considered.] — When land is taken compul-
sorily for public purposes the compensation
payable to the owner is to be calculated on the
value of the land to him, taking into account
the suitability of the land for any special
business for which he proposes to use it,
though he has not actually begun to do so, not
only on the market value of the land ; but the
capitalised amount of the additional business
profits and savings which he expects to make
from the use of the land should not be taken
into account in arriving at such value.
Pastoral Finance Association v. The Minister,
84 L. J. P.C. 26; [1914] A.C. 1083; 111 L. T.
1047— P.C.
Arbitration — Costs.] — Section 118 of the
Public Works Act, 1912, of New South Wales,
dealing with the costs of an arbitration to
settle the compensation payable for lands com-
pulsorily acquired for public purposes, provides
by sub-section 1 that all the costs shall be borne
by the constructing authority, unless the sum
awarded by the arbitrators is the same or a
less sum than was offered by the constructing
authority, in which case each party shall bear
his own costs; and by sub-section 2, if the sum
awarded is one-third loss than the amount
claimed, the whole costs shall be borne by the
claimant. In a case in which the arbitrators
awarded a sum which was larger than that
offered by the constructing authority, but more
than one-third less than the amount claimed
by the claimant, — Held, that the whole costs
of the arbitration should be borne by the con-
structing authority. New South Wales Rail-
ways (Chief Commissioner) v. Hutchinson.
83 L. J. P.C. 181 ; [1914] A.C. 581 ; 110 L. T.
915— P.C.
Public Service — Gratuity on Retirement —
Discretion of Government — Illusory Exercise
of Discretion.] - — The appellant was in the
public service of New South Wales from
December 9, 1875, to September 16, 1905. On
his retirement the Public Service Board
awarded him a gratuity based on his service
up to December 23, 1895. By section 4 of the
Public Service Superannuation Act, 1903, the
appellant became " entitled to a gratuity not
exceeding one month's pay for each year of
service from the date of his permanent employ-
ment." He claimed this statutory gratuity
from December 23, 1895, to the commencement
of the Public Service Act, 1902. The Public
Service Board, in exercise of their discretion,
awarded him one penny a year for the seven
years : — Held, that this was an illusory award
and was tantamount to a refusal by the Board
to exercise its discretion, and that the appellant
was entitled to the full amount prescribed by
the statute for the further seven years.
Williams v. Giddy, 80 L. J. P.C. 102; [1911]
A.C. 381 ; 104 L. T. 513 ; 27 T. L. E. 443— P.C.
Stamp Duty — Sale of Old Company to New
Company — Consideration in Shares of Old
Company Partly or Wholly Paid up — Date of
Assessment.] — When a company purchases
the undertaking of another company in con-
sideration of partly and wholly paid-up shares
of the former, the stamp duty on transfer must
be assessed on the value of the shares not at
the date of the provisional agreement, before
the new company had come into existence, but ■
at the date of the adoption of that agreement, I
and evidence is admissible to shew that the 1
real value was not identical with the face
value or the value attributed to the share
consideration by the purchasing company.
Commissioner of Stamp Duties v. Broken Hill
South Extended, Lim., 80 L. J. P.C. 130;
[1911] A.C. 439; 104 L. T. 755— P.C.
Street — Effect of Assessment on Owners
within the Improvement Area — Liability of
Owner for Time Being.] — The New South
Wales Moore Street Improvement Act, 1890,
authorised the appellants to make street
improvements, the cost thereof (see sections 4
and 6) to be divided between the whole body
of ratepayers under a special street improve-
ment rate and the owners of property within
the improvement area. In a suit by the
appellants to enforce liability for the unpaid
amounts assessed in respect of three properties
within the improvement area the Judge ordered
its dismissal on the ground that with regard
to two of the houses they ought to have been
separately assessed, and in regard to the third
that the defendants were not the successors in
title of the person originally assessed : — Held,
that the appellants were not required to assess
each house separately, but only the properties
of owners, and that, the improvement having
been duly commenced, and the assessment on
owners duly completed according to the
requirements of sections 4 and 6, the owner
for the time being was liable for the amount
assessed upon his property and for arrears not
189
COLONY.
190
exceeding three years before suit. Sydney
Municipal Coujicil v. Fleay, 81 L. J. P.C. 1;
[1911] A.C. 371— P.C.
c. South Australia.
See also Vol. III. 496, 2283.
Boundary of — Determination — Re-opening. J
— By au Act of Parliament pa.s.se(i in 1834
(4 & 0 Will. 4. c. 95) and letters patent issued
under the powers given by the Act, the Colony
of South Australia was erected into a British
province and its eastern boundary was fixed at
" the 141st degree of east longitude." A
survey was carried out at the joint expense
of the Colony of South Australia and the colony
lying to the east of it by which the 141st
meridian of east longitude was fixed as
accurately as was possible with the scientific
knowledge and appliances then available, and
the result of such survey was adopted and
proclaimed as the boundary by both colonies.
It was afterwards discovered that the boundary
so laid down was about two miles and a quarter
to the west of the true meridian of 141 degrees
of east longitude, whereby a strip of land of
about 340,000 acres, which should have been
included in South Australia, was excluded
from it : — Held, that the letters patent im-
plicitly gave to the executives of the two
colonies power to do such acts as were necessary
for fixing the boundary between them, and
such acts having been done with all due care,
the boundary must be taken to have been
finally and permanently fixed and could not be
re-opened. South .Australia (State) v. Victoria
(State), 83 L. J. P.C. 137; [1914] A.C. 283;
110 L. T. 720: .30 T. L. E. 262— P.C.
d. Victoria.
See also Vol. III. 498. 2284.
Income Tax — Rate — Vvliether Income Pro-
duce of Property or Derived from Personal
Exertion.] — Income derived by a beneficiary
under a will from a business carried on by
the trustees of the testator under the provisions
of the will is taxable at the rate prescribed
for " income from personal exertion," and not
as " income from the produce of property,"
under the Income Tax Acts of the State of
Victoria. Webb v. Syme (10 Commonwealth
L. R. 482) disapproved. Syme v. Victoria
Commissioner of Taxes, 84 L. J. P.C. 39;
[1914] A.C. 1013; 111 L. T. 1043; 30 T. L. R.
689— P.C.
e. Western Australia.
See also Vol. III. 508, 2288.
Company — New Shares — Dividend —
"Profit, advantage, or gain."] — The Divi-
dend Duties Act. 1902. of Western Australia
imposes duties on the dividends or profits of
incorporated companies, and by section 2
"dividend" includes every dividend, profit,
advantage, or gain intended to be paid or
credited to or distributed among any members
of any company. A company increased its
capital hy crea^^ing new fully paid shares which
were allotted to the existing shareholders in
proportion to their holdings of old shares.
No money passed, but a sum was taken from
the reserve fund and transferred to the share
capital account : — Held, that this was a " divi-
dend " within the meaning of the Act and
liable to duty. Swan Brewery Co. v. Regem,
83 L. J. P.C. 134; [1914] A.C. 231; 110 L. T.
211; 30 T. L. E. 199— P.C.
Duties on Dividends — "Deducted and
paid" Construed as "deducted or paid."] —
By sections 5 and 6 of the Dividend Duties
Act, a duty is imposed on dividends declared
by a company carrying on business in Western
Australia and not elsewhere. The company
imder section 13 " may deduct and retain "
for their own use the sums payable in dis-
charging these duties from the dividends. By
section 15, " when a dividend is distributed
before the duty payable in respect thereof is
deducted and paid, the duty shall be a debt
due by the person receiving the dividend to
his Majesty " : — Held, that the words " de-
ducted and paid " in section 15 must be read
as meaning " deducted or paid," and that
where the duty has been paid by the company
on dividends declared, but no deduction made
from the amounts paid to the shareholder, no
further duty is payable to the Crown. Golden
Horseshoe Estates Co. v. Regem, 80 L. J. P.C.
135: [1911] A.C. 480; 105 L. T. 148— P.O.
2. British North America.
a. Dominion of Canada.
See also Vol. III. 513, 2290.
Appeal — Action for Specific Performance —
Enquiry as to Damages — Judgment whether
Interlocutory or Final.] — The Supreme Court
Act of Canada by section 38 (c) gives an
appeal to that Court from any judgment,
whether final or not, " in any action, suit,
cause, matter or judicial proceeding, in the
nature of a suit or proceeding in equity."
W^here, therefore, in an action for specific per-
formance of a contract with an alternative
claim for damages, an appeal has not been
brought against the judgment within the time
limited by the Supreme Court Act, and the
Court has refused to extend the time for
appealing, the judgment cannot be questioned
in subsequent proceedings. Before the passing
of the statute 3 & 4 Geo. 5. c. 51 a judgment
in a common law action in Canada finding
liability and directing an enquiry into damages
was held to be interlocutory, and therefore no
appeal as of right lay against it. Wiyidsor,
Essex, and Lake Shore Rapid Railway v.
Nelles, 84 L. J. P.C. 54; [1915] A.C. 355;
112 L. T. 180— P.C.
Bank Act — Vagueness in Description of Pro-
perty Included in Mortgage — Validity of
Mortgage.! — Section 88, sub-section 1 of the
Banlc Act of Canada, allowing a bank to
" lend money to any . . . dealer in products
of . . . the forest," and sub-section 3, allow-
ing it to lend to " any person engaged in
business as a wholesale manufacturer of any
goods . . . upon the security of the goods,"
enable a bank to make advances to a company
191
COLONY.
192
upon the security of timber cut by it, and a
difficulty in ascertaining all the things included
in a general assignment will not affect the
assignee's right to those things which can be
ascertained and identified. hyiperial Paper
Mills of Canada v. Quebec Bank, 83 L. J.
P.C. 67; 110 L. T. 91— P. C.
Interest — Legal Rate.] — The Canadian
Bank Act, 1906, s. 91, provides that a bank
shall not be able to recover interest at a higher
rate than 7 per cent., and the Interest Act,
1906, provides by section 3 that where no rate
of interest is fixed the rate of interest shall be
5 per cent. : — Held, that where a bank in a
mortgage deed had stipulated for interest at
the rate of 8 per cent., accounts should be
taken on the basis of interest at 5 per cent.
only. McHngh v. Union Bank of Canada,
82 L. J. P.C. 65; [1913] A.C. 299; 108 L. T.
273; 29 T. L. R. 305— P.C.
Company — Registration — Ultra Vires.] —
The exclusive power conferred by section 91,
sub-section 2 of the British North America
Act, 1867, on the Dominion Parliament, of
making laws for " The Regulation of Trade
and Commerce," enables that Parliament to
prescribe to what extent the powers of com-
panies, the objects of which extend to the
entire Dominion, shall be exercisable, and
what limitations shall be placed on those
powers ; and therefore a provincial Legislature
has no power under section 92, sub-section 11
of the Act, which gives power to make laws
for " The Incorporation of Companies with
Provincial Objects," to pass an Act requiring
a Dominion company to be licensed or regis-
tered under the Act before it can carry on
business in the province. Citizens Insurance
Co. V. Parsons (51 L. J. P.C. 11 ; 7 App. Cas.
96) followed. John Deere Plow Co. v.
Wharton; Same v. Duck, 84 L. J. P.C. 64;
[1915] A.C. 330; 112 L. T. 183; 31 T. L. R.
35— P.C.
Constitutional Powers — Questions of Law
Submitted to the Supreme Court — Ultra Vires.]
—An Act of the Dominion Parliament autho-
rising questions either of law or of fact to be
put to the Supreme Court, and requiring the
Judges of that Court to answer them on the
request of the Governor in Council, is a valid
enactment within the powers of that Parlia-
ment. Att.-Gen. for Province of Ontario v.
Att.-Gen. for Dominion of Canada, 81 L. J.
P.C. 210; [1912] A.C. 571; 106 L. T. 916;
28 T. L. R. 446— P.C.
Extradition — Preliminary Requisition not
Obligatory.] — A preliminary requisition on
behalf of the power requiring extraditions is
not obligatory on the authorities before issuing
a warrant under section 10 of the Extradition
(Canada) Act. 1906, for the arrest of a fugitive
criminal. Att.-Gen. for Dominion of Canada
V. Fedorenko, 81 L. J. P.C. 74; [1911] A.C.
735; 105 L. T. 343; 27 T. L. R. 541— P.C.
Fishery — Right of Fishing in Tidal and
Non-tidal Waters — Rights of Dominion and
Province.] — By the British North America
Act, 1867, s. 91, sea coast and inland fisheries
are among the matters to which the exclusive
authority of the Dominion Parliament extends ;
and therefore a provincial Legislature has no
power to grant exclusive rights of fishing in
the open sea within three miles of the coast
of the province or in any arm of the sea, or
estuary of a river, or other tidal waters, the
right of fishing in such waters being a public
right which can be dealt with only by the
Dominion Parliament. Att.-Gen. for British
Columbia v. Att.-Gen. for Canada, 83 L. J.
P.C. 169; [1914] A.C. 153; 110 L. T. 484;
i 30 T. L. R. 144— P.C.
j Where land has been granted absolutely
by a province to the Dominion such grant
j includes the right of fishing in non-tidal waters
i within such land, and the provincial Legisla-
1 ture has no power to deal with fishing rights
in such waters. lb.
i Land Compulsorily Acquired — Compensa-
I tion — Value of Land — Advantages.] — The law
I of Canada as regards the principles upon which
compensation for land taken compulsorily is
to be awarded is the same as the law of
England; that is to say, the value to be paid
for is the value to the owner as it exists at
the date of taking, not the value to the taker;
and this value consists in the present value
of all such advantages as the land possesses,
present or future. Cedar Rapids Manufactur-
ing Co. V. Lacoste, 83 L. J. P.C. 162; [1914]
A.C. 569; 110 L. T. 873; 30 T. L. R. 293
—P.C.
Where, therefore, there is a value above the
bare agricultural value of the land, consisting
in a possibility of use for a certain undertak-
ing, the price is not to be calculated as a
proportional part of the whole value of such
undertaking, but is such price above the bare
agricultural value as possible intending under-
takers would give. lb.
Light, Heat, and Power Companies —
Powers of Restriction on Importation of Elec-
tric Energy — Implied Powers — Relations
between City and Supply Company.] — A
statutory power to do certain things is not to
be read as not extending to other things ancil-
lary thereto, such as in an electric system the
erection of poles whereon to hang the wires.
Where a number of companies are amalga-
mated by statute, a restriction of the powers
of one of the companies — for example, in the
importation of energy from outside the city —
is not to be held as applying to the amal-
gamated concern. It is not open to a muni-
cipality to object to the details of a system,
established at great expense, in which it has
for many years co-operated and from which it
has derived advantage. Winnipeg Electric
Railway v. Winnipeg City, 81 L. J. P.C. 193;
[1912] A.C. 355 ; 106 L. T. 388— P.C.
Master and Servant — Common Employ-
ment— Breach of Statutory Duty by Employer
— Accident Caused by Breach.] — The breach
of a statutory duty by an employer is not one
of the risks which a servant must be assumed
to have undertaken to run when he entered
the employers' service, and therefore, where
an employer has employed an unqualified
person in breach of his statutory duty he
193
COLONY.
194
cannot rely on the defence of "common
employment " in the case of an accident to a
servant caused, or contributed to, by the con-
duct of such unqualified person. Jones v.
Canadian Pacific Railway, 83 L. J. P.C. 13;
110 L. T. 83; 29 T. L. E. 773— P.C.
A railway company employed a person who
had not passed the tests required by an order
of the Railway Commissioners, which had the
force of a statute, to work a train. He allowed
the train to run past danger signals, and an
accident resulted -.—Held, that there was evi-
dence that the breach of the statutory duty
caused, or contributed to, the accident. lb.
Minerals under Railway Line — Compensa-
tion to Owner for not Working.] — By the
common law both of England and Ontario,
except so far as altered by legislation, when
land is sold with a reservation of the minerals
to the vendor, he cannot, in the absence of a
special bargain, so work them as to let down
the surface. But under the Canadian Railway
Act a railway company which has acquired
the surface is not, as by the English Railways
Clauses Consolidation Act, 184.5, deprived of
the natural right of support from subjacent and
adjacent minerals, but is put on terms to com-
pensate the mineral owner at once for the loss
of value caused by the liability to support
which rests on him after the titles to the
minerals and the surface have been severed,
and, in the absence of agreement, the entire
amount of compensation is to be ascertained
by arbitrators once for all, as at the date of
the deposit of the plans ; and upon payment
of the compensation the mineral owner is
restrained from working his minerals except-
ing under such conditions as may be imposed
by the Railway Board. Davies v. James Bay
Raihcay, 83 L. J. P.C. 339; [1914] A.C.
1043; 111 L. T. 946; 30 T. L. R. 633— P.C.
Parliament — Proyincial Legislatures —
Legislative Powers — Marriage Law.] — By
section 91 of the British North America Act,
1867, the exclusive legislative authority of the
Parliament of Canada includes marriage and
divorce ; and by section 92 the Legislature in
each province may exclusively make laws with
relation to the solemnisation of marriage in
the provinces. Upon the true construction of
these sections, the jurisdiction of the Dominion
Parliament does not cover the whole field of
validity of marriage, for section 92 operates by
way of exception to the powers conferred as
regards marriage by section 91, and enables
provincial Legislatures to enact conditions as
to solemnisation of marriage which may affect
the validity of the contract. Rejerence by
Governor -General of Canada to Supreme Court,
In re, or Marriage Legislation in Canada, In
re, 81 L. J. P.C. 237; [1912] A.C. 880;
107 L. T. 330: 28 T. L. R. 580— P.C.
A bill by which it was proposed that every
ceremony or form of marriage heretofore or
hereafter performed by any person authorised
thereto by the laws of the place where it is per-
formed shall be valid everywhere in Canada
notwithstanding any differences in the religious
faith of the persons married, and without
regard to the religion of the celebrant, is ultra
vires of the Dominion Parliament, and the
Parliament of Canada has not authority to
enact that marriages not contracted before a
Roman Catholic priest of persons both or only
one of whom is a Roman Catholic shall be
legal and binding. lb.
Powers of Dominion and Provincial
Legislatures — Provincial Act Affecting
Dominion Railways — Ultra Vires.] — A pro-
vision in an Act of a provincial Legislature
empowering a provincial railway company to
" take possession of, use or occupy any lands
belonging to " a Dominion railway company,
" in so far as the taking of such lands does not
unreasonably interfere with the construction
and operation of " such railway, is ultra vires
of the provincial Legislature ; and the omission
of the word " unreasonably " will not make
such legislation intra vires. Ait. -Gen. for
Alberta v. Att.-Gen. for Canada, 84 L. J.
P.C. 58; [1915] A.C. 363; 112 L. T. 177;
31 T. L. R. 32— P.C.
"Property and civil rights in the pro-
vince" — Ultra Yires.] — Under the British
North America Act, 1867, s. 92, a provincial
Legislature has the exclusive power of legis-
lating as to "property and civil rights in the
province." A sum of money was subscribed
by bondholders resident outside the province
for the construction of a railway in a province
of Canada, under a scheme which afterwards
proved abortive. The money was lying at a
bank in the province. The provincial Legis-
lature passed an Act providing that the money
should form part of the general revenue fund
of the province free from all claims of the
railway company or their assigns, and should
be paid over to the treasurer of the province :
— Held, that as the bondholders had a right
to recover back their money as having been
paid for a consideration which had failed, the
legislation was not restricted to dealing with
property and civil rights in the province, and
was ultra vires. Royal Bank of Canada v.
Regem, 82 L. J. P.C. 33; [1913] A.C. 283;
108 L. T. 129 ; 29 T. L. R. 239— P.C.
Railway — Statute — Construction — Special
Act — General Act — Inconsistency.] — By sec-
tion 3 of the General Railway Act, 1906
(R. S. C. 1906, c. 37), the general Act is to
be construed as incorporated with any special
Act, and where the provisions of the general
Act and " of any special Act passed by the
Parliament of Canada, relate to the same
subject-matter, the provisions of the special
Act shall ... be taken to override the pro-
visions of " the general Act : — Held, that the
power given by the General Railway Act,
1906, with the consent of the local authority,
to enter upon any public place or highway
and break up the ground did not curtail the
larger powers without such consent to enter
upon property required for their undertaking
which were given by the appellant's Act of
incorporation, 1902 (2 Edw. 7. c. 107).
Toronto and Niagara Power Co. v. North
Toronto Corporation, 82 L. J. P.C. 14; [1912]
A.C. 834; 107 L. T. 182; 28 T. L. R. 563
—P.C.
Section 247 of the General Railway Act,
1906, applies only to companies within the
7
195
COLONY.
196
definition clause — that is, to railway com-
panies, lb.
Depriyation of Facilities — Finding of
Fact by Railway Board — Limitation of Time
for Bringing Actions.] — The appellant rail-
way in 1888, at the request of the respon-
dents, constructed a spur track or siding into
the respondents' yard. In 1904 the appel-
lants gave notice to the respondents to dis-
continue this facility, which was afforded under
section 253 of the Railwaj' Act of Canada,
1903; and in November, 1904, cut it off. The
Railway Board, whose order was affirmed by
the Supreme Court of Canada, in 1906 ordered
the restoration of the facility. In an action
of damages for the deprivation of the facility
brought in 1908, — Held, that the facility of
the siding was a facility to which the respon-
dents were entitled, as it had so been found
by the Railway Board and the Supreme
Court, whose decision on a question of fact is
under section 42 of the Railway Act, 1903,
conclusive. Held, also, that the special pro-
visions for limiting the time of bringing
actions of certain classes to a period of a year
do not apply to a refusal or discontinuance
of facilities such as were involved. Canadian
Northern Railway v. Robinson, 81 L. J. P.C.
87 ; [1911] A.C. 739 ; 105 L. T. 389— P.C.
Agreement with Corporation — Powers of
Railway Commissioners — Damages for Loca-
tion of Railway.] — It is beyond the powers of
the Board of Railway Commissioners for
Canada, in expressing approval of the location
of a railway along a street, to impose the
condition that " the Company shall do as little
damage as possible and make full compensa-
tion to all persons interested for all damage
by them sustained by reason of the location
of the said railway," inasmuch as such a
condition is not authorised either by section 47
or by section 237, sub-section 3 of the
Dominion Railway Act, 1906. Grand Trunk
Pacific Railivay v. Fort William Land Invest-
ment Co., 81 L. J. P.C. 137; [1912] A.C. 224;
105 L. T. 649; 28 T. L. R. 37— P.C.
Federal and Provincial Railways —
Tlirough Traffic — Jurisdiction of Railway
Commissioners.] — The effect of sub-section 10
of section 92 (" Exclusive Powers of Provincial
Legislature ") of the British North America
Act, 1867, is to transfer the excepted works
mentioned in subheads (a), (b), and (c) into
section 91, and thus to place them under the
exclusive jurisdiction of the Dominion Parlia-
ment. The Board of Railway Commissioners
for Canada have no jurisdiction over a pro-
vincial railway in respect of its through traffic.
Montreal City v. Montreal Street Railicay,
81 L. J. P.C. 145; [1912] A.C. 333; 105 L. T.
970; 28 T. L. R. 220— P.C.
Bond Issue — Guarantee.] — By a con-
tract of July, 1903. confirmed by Act of
Parliament, the Government guaranteed
an issue of bonds to be made by the
appellant company for an amount equal to
75 per cent, of the cost of construction of a
portion of the appellant railway. The Grand
Trunk Railway of Canada guaranteed a second
series of bonds as a second charge on the
appellants' undertaking, to rank next after
the Government bonds. In a supplemental
contract dated February, 1904, and confirmed
by statute, the Government agreed to imple-
ment its guarantee of the bonds of the appel-
lants, which had fallen in value, " in such
manner as may be agreed upon, so as to make
the pi-oceeds of the said bonds so to be
guaranteed a sum equal to 75 per cent, of the
cost of construction " of the above-mentioned
portions of the railway : — Held, that it was
not competent for the Government to guarantee
other bonds than those authorised by the
contract of July, 1903, as to do so would be a
breach of faith with the Grand Trunk Railway
of Canada by letting in a further charge in
priority to the bonds guaranteed by that
company, and that the Government might
implement their guarantee either in cash or in
any manner not imposing further liability on
the appellants. Grand Trunk Pacific Railway
V. Regem, 81 L. J. P.C. 134; [1912] A.C. 204';
105 L. T. 645— P.C.
Contract Restricting Liability to Pas-
senger.]— In Canada no contract restricting a
railway company's liability is valid unless it
has been approved by the Board of Railway
Commissioners under section 340 of the Rail-
way Act (Rev. Stat. 1906, c. 37). Grand
Trunk Railway v. Robinson, 84 L. J. P.C.
194; [1915] A.C. 740; 113 L. T. 350;
31 T. L. R. 395— P.C.
Freight Classification — Supplement —
Powers of Railway Company.] — A railway
company in Canada has no power by introduc-
ing a supplementary tariff to use a freight
classification for through traffic with the United
States which is not a classification in use in
the United States, nor a classification autho-
rised by the Railway Board. Canadian Pacific
Railway v. Canadian Oil Companies ; Canadian
Pacific Railway v. British American Oil Co.,
83 L. J. P.C. 347 ; [1914] A.C. 1022 ; 111 L. T.
950— P.C.
Land Subsidy — Railway — Exemption
from Taxation — Period of Exemption.] — By
clause 16 of the construction contract of the
Canadian Pacific Railway, lands of the com-
pany were to be exempt from taxation " until
they are either sold or occupied," or "for
twenty years after the grant thereof from the
Crown " : — Held, that there must have been
a completed sale under which the property
passed out of the company and vested in the
purchaser before property became liable to
taxation. Minister of Public Works of Alberta
V. Canadian Pacific Railway; Rex v. Canadian
and Pacific Railway, 80 L. J. P.C. 125; [1911]
A.C. 328; 104 L. T. 3; 27 T. L. R. 234— P.C.
The period of exemption from taxation
should be reckoned from the date of the con-
veyance of the lands to the company by letters
patent under the Great Seal, not from the date
of the survey by which the lands were identi-
fied as those to which the company was entitled
under their contract. North Cypress v.
Canadian Pacific Raihcay (35 Can. S. C. R.
550) approved and followed. lb.
19"
COLONY
198
Breach of Statutory Duty — Level Cross-
ing — Accident — Proximate Cause — Negli-
gence.1 — By section 274 of the Canadian
Railway Act, when any train is approaching a
level crossing " the engine whistle shall be
sounded at least eighty rods before reaching
such crossing " : — Held, that this section did
not apply to an engine engaged in shunting,
which did not in the course of its work ever
get eighty rods away from a level crossing.
Grand Trunk Railway of Canada v. McAlpine,
83 L. J. P.C. 44; [1913] A.C. 838; 109 L. T.
698; 29 T. L. R. 679— P.C.
By section 276, whenever in any city, town,
or village a train moving reversely is passing
over a level crossing " the company shall
station on that part of the train, or of the
tender " of the engine " which is then foremost
a person who shall warn persons standing on,
or crossing, or about to cross the track of such
railway " : — Held, that if a warning was given
in proper time, such as would be apprehended
by a person possessed of ordinary faculties, the
company would not be liable for an accident
occurring to a person w^ho did not hear, or did
not act upon, such warning. lb.
In the case of an accident a company is not
liable for a negligent breach of a statutory
duty unless it is proved that the accident was
caused by such negligence, and not by the folly
and recklessness of the person injured. lb.
Special Act — Same Subject-matter —
Ratifying Agreement.! — Section 3 of the Cana-
dian Railway Act, 1906, provides that where its
provisions and those of any special Act passed
by the Parliament of Canada relate to the
same subject-matter, the provisions of the
special Act are to override the provisions of
the Act of 1906 : — Held, that an Act ratifying
an agreement between the two railway com-
panies was a special Act within the meaning
of the words of section 3 of the Railway Act,
1906. The subject-matter of this special Act
and that of section 238 of the Railway Act,
1906, are not the same, and there is no con-
flict between them. Canadian Pacific Railway
V. Toronto City. 81 L. T. P.C. 5; [1911] A.C.
461 ; 104 L. T. 724 ; 27 T. L. R. 448— P.C.
Railway Board — Jurisdiction of — Declara-
tory Order.] — The Board of Railway Commis-
sioners for Canada has jurisdiction, under
section 26 of the Railway Act, to make a
declaratory order. Canadian Pacific Railway
V. Canadian Oil Companies ; Canadian Pacific
Railway v. British American Oil Co., 83 L. J.
P.C. 347; [1914] A.C. 1022; 111 L. T. 950
—P.C.
The Railway Board constituted by the
Railway Act, 1903, ordered the appellant and
the respondent railway companies to construct
a bridge and an elevated viaduct for the pur-
pose of carrying their railways through the
city of Toronto : — Held, that under the
Canadian Railway Act, 1906, s. 238, and the
Amending Act, 1909, ss. 237, 238, the Railway
Board had jurisdiction to make these orders.
Canad%an Pacific Railway v. Toronto City,
81 T>. J. P.C. 5; [1911] A.C. 461; 104 L. T.
724; 27 T. L. R. 448— P.C.
Railway Board — Powers of — Viaduct over
Railway — Cost of Construction.] — The Rail-
way Board have no power under the Canadian
Railway Act to order that a local tramway
company, whose lines run along streets which
cross a railway track by level crossings, shall
contribute to the cost of the construction of
viaducts to carry the streets over the railway,
in place of the level crossings. British Colum-
bia Electric Railway v. Vancouver, Victoria,
and Eastern Railway, 83 L. J. P.C. 374;
[1914] A.C. 1067; 111 L. T. 686— P.C.
Rivers Navigable and Floatable — Loose
Logs — Crown Domain — Private Property.] —
A river down which only loose logs can be
floated is not a " navigable and floatable "
river within the meaning of article 400 of the
Civil Code of Lower Canada. Tanguay v.
Canadian Electric Light Co. (40 Can. Sup.
Ct. Rep. 1) approved. Maclaren v. Att.-Gen.
for Quebec, 83 L. J. P.C. 201; [1914] A.C.
258 ; 110 L. T. 712 ; 30 T. L. R. 278— P.C.
Riparian Proprietor — Presumption of
Ownership ad Medium Filum Aquae.] — The
English rule of law that a conveyance of land
expressed to be bounded by a river must be
presumed to confer the ownership ad medium
filum aqua, in the absence of words of exclu-
sion, holds good in Canada. lb.
Succession Duty — "Direct taxation within
the Province" — Ultra Yires.] — A direct tax
within the meaning of section 92 of the British
North America Act, 1867, is a tax which is
demanded from the very persons who it is
intended or desired should pay it, and there-
fore it is ultra vires a provincial Legislature
to impose a succession duty, such duty not
being " direct taxation within the Province,"
but being payable in the first instance by a
person entitled to recover the amount paid from
the assets of the estate. Cotton v. Regem,
83 L. J. P.C. 105 ; [1914] A.C. 176 ; 110 L. T.
276 ; 30 T. L. R. 71— P.C.
Trade Mark — Registration — Distinctive
Word — Passing off.] — Distinctiveness is of
the essence of a trade mark, and the word
" Standard," though registered, is not a valid
trade mark within the Canadian Trade Mark
and Design Act, 1879 -.Standard Ideal Co. v.
Standard Sanitary Manufacturing Co., 80 L. J.
P.C. 87; [1911] A.C. 78; 103 L. T. 140;
27 R. P. C. 789: 27 T. L. R. 63— P.C.
Extra-provincial Corporation.] — Where
an extra-provincial corporation which has
obtained a licence carries on its business only
by means of travellers who send the goods
direct to the purchasers, and the name of the
goods has not acqiiired a secondary meaning,
in the absence of evidence of deception no
action for passing off will lie, and an injunc-
tion will not be granted to restrain such sale.
7b.
Water Rights— Land Conveyed by Province
to Dominion — Power of Province to Legis-
late.]— Under the British North America Act,
1867, and the Articles of I^nion incorporating
British Columbia in the Dominion, lands
199
COLONY.
200
known as the " Railway Belt " became the
property of the Dominion. By the Water
Clauses Consolidation Act, 1897, of British
Columbia, all unrecorded water in any river,
lake, or stream in the province was declared
to be vested in the Crown in right of the
province : — Held, that the lands in the Rail-
way Belt, and consequently the waters therein,
which before the Articles of Union were the
property of the Crown in right of the
province, had become the property of the
Crown in right of the Dominion, that no Act
of the provincial Legislature could affect such
waters, and that in fact the Water Clauses
Act, 1897, did not purport to affect them.
Burrard Poicer Co. v. Regem, 80 L. J. P.C.
69 ; [1911] A.C. 87 ; 103 L. T. 404 ; 27 T. L. E.
57— P.C.
b. Alberta.
Road Allowances — Statutory Authority to
Company to Cross Road Allowances — Canals
Intersecting Road Allowances — Duty of
Company to Build Bridges at Points of Inter-
section.'— The respondents obtained authority
under the North- West Irrigation Act, 1898, to
cross the road allowances, which were strips
of Crown lands reserved from public sale and
settlement for the purpose of making roads
where required : — Held, that the respondents
and not the provincial Government were bound
to construct the necessary bridges with proper
and sufficient approaches thereto at the points
where the respondents' canals intersected the
road allowances reserved throughout the
province of Alberta under the Dominion Lands
Act, R. S. C. 1886. Rex v. Alberta Railway
and Irrigation Co., 82 L. J. P.C. 40; [1912]
A.C. 827 ; 107 L. T. 185 ; 28 T. L. E. 574—
P.C.
c. British Columbia.
See also Vol. III. 513, 2299.
Company — Requirement of Licence to carry
on Business.] — The provision in Part VI. of
the British Columbia Companies Act, that a
company incorporated under the laws of the
Dominion of Canada and duly authorised to
carry out any of the purposes to which the
authority of the British Columbia Legislature
extends must obtain a licence from the British
Columbia Registrar of Companies authorising
it to carry on business within the province, is
ultra vires the provincial Legislature. John
Deere Plow Co. v. Wharton, 31 T. L. R. 35
—P.C.
Ejectment — Dominion Possessory Lease —
Title — Inconsistent Grants — Deceit Notice —
Practised upon the Crown.] — The respondents
brought an action against the appellants to
recover possession of an island in Burrard Inlet
near the city of Vancouver. The appellants
claimed to have been in possession since June,
1887, under a grant from the Dominion
Government, subsequently cancelled, of land
contiguous thereto as a park, and under a lease
from the Dominion, for ninety-nine years,
dated November, 1908, which did not express
the island in suit, and was made " subject
until their determination to any existing lease
of portions of the said land." The respondents
based their title on a Dominion lease dated
February, 1899 : — Held, that the appellants
as defendants in possession could not object
that the respondents' lease was not granted
under the Great Seal as that objection was not
raised in the Courts below, or that deceit had
been practised on the Crown by the respondents
as the latter had had no notice, actual or con-
structive, of any previous inconsistent grant.
Vancouver City v. Vancouver Lumber Co.,
81 L. J. P.C. 69; [1911] A.C. 711; 105 L. T.
464— P.C.
Land — Title to — Registration of Title — Un-
registered Deed — Admissibility in Evidence —
Action for Specific Performance.] — By sec-
tion 75 of the British Columbia Land Registry
Act, 1906, an unregistered instrument affecting
land shall not be receivable as evidence or
proof of the title of any person to such land,
as against the registered title of any person to
the same land, except in an action questioning
the registered title to such land on the ground
of fraud. S. applied for a certificate of title
to certain land. At the time of her application
she took to the Land Registry Office a deed
the effect of which was to shew that she was
the owner of a part of the land only, and that
the other part belonged to the appellant's
predecessor in title. This deed was deposited
in the office, but was not registered, and S.
obtained a certificate of title to the whole of
the land in her own name. Afterwards she
contracted to sell the land to the respondents.
In an action by the purchasers against S. and
the appellant to obtain specific performance
of the contract, S. admitted the appellant's
title to part of the land : — Held, that the
appellant was improperly joined as a defen- y
dant in the action, and that the unregistered
deed was admissible in evidence, not as
disproving the respondents' title, but as a
material circumstance which the Court must
take into account in deciding the extent to
which specific performance ought to be granted.
The only operation of section 75 of the Act
is to impose a penalty on the non-registration
of an instrument by making such instrument
inadmissible in evidence in certain cases.
Howard v. Miller, 84 L. J. P.C. 49 ; [1915]
A.C. 318 ; 112 L. T. 403— P.C.
Limitations, Statute of — Possession of Land
— Possession for More than Twenty Years by
Grantee as Mortgagee — Payment of Taxes
only Act of Possession.] — In 1889 the appel-
lant lent money to the respondent, who, by
way of security for the loan, conveyed to the
appellant certain wild land which was then of
no value. For more than twenty years before
the respondent brought a suit to redeem the
appellant paid the taxation upon the land, and
so performed the only act of possession of which
it appeared to be capable. The respondent,
who was aware that these payments were
being made by the appellant, made no pay-
ments whatever in the way of interest on, or
repayment of, the loan, and left the property
severely alone : — Held, that his right to redeem
was barred by the British Columbia Statute of
Limitations (Rev. S. 1897, c. 123), s. 40.
201
COLONY.
202
Kirby v. Cowderoy, 81 L. J. P.C. 222; [1912]
A.C. 599; 107 L. T. 74— P.C.
The words of Lord O'Hagan on possession
in Lord Advocate v. Lovat {Lord) (5 App. Cas.
273, 288), cited by Lord Macnaghten in
Johnston v. O'Neill (81 L. J. P.C. 35; [1911]
A.C. 583), adopted. 76.
Master and Servant — Workmen's Compen-
sation— Extra-territoriality of Statute — Death
by Accident of Alien Workman — Non-resident
Alien Dependant.] — The legal personal repre-
sentative of an alien workman who was killed
by accident arising out of and in the course
of his employment, — Held, under the British
Columbia Workmen's Compensation Act, 1902,
Schedule II. s. 8, to be entitled to compensa-
tion, to be held for the benefit of the deceased
man's widow, who was herself an alien resid-
ing in Austria. Baird d Co. v. Birsztan
(8 Fraser, 438) approved. Krzus v. Crow's
Nest Pass Coal Co., 81 L. J. P.C. 227 ; [1912]
A.C. 590; 107 L. T. 77; 56 S. J. 632;
28 T. L. E. 488— P.C.
Municipality — Yalidity of By-law. 1 — The
Municipal Act, 1892, of British Columbia,
s. 146, provides that " When debentures have
been issued by a municipal council under a
statute or under a by-law, and the interest
on such debentures . . . has been paid for the
period of one year or more by the municipality,
the statute and the by-law, and the debentures
issued thereunder . . . shall be valid and
binding on the corporation, and shall not be
quashed or set aside on any ground what-
ever " : — Held, that the effect of the enact-
ment was not confined to making valid the
debentures so issued, but that the by-law
under which they were issued could not, after
the lapse of a year, be quashed or set aside on
the ground of any irregularity in the procedure
bv which it was obtained. Wilson v. Delta
Corporation, 82 L. J. P.C. 52; [1913] A.C.
181; 107 L. T. 778— P.C.
Limitation of Actions against Muni-
cipality.]— By section 243 of the Municipal
Clauses Act, 1897, " all actions against any
municipality ... for the unlawful doing of
anything purporting to have been done . . .
under powers conferred by any Act of the
Legislature . . . shall be commenced within
six months after the cause of such action shall
have first arisen"; and by section 244 all
other actions against a municipality shall be
commenced within one year after the cause of
action has arisen : — Held, that the sections
applied to an action brought in respect of con-
tinuing damage alleged to have been caused
to land of the plaintiff by works constructed
and maintained by a municipality, and for an
injunction. lb.
Stopping up Lane — Lease of Disused
Highway — "Giving a bonus."] — A municipal
corporation professing to act under the powers
as to public health conferred on them by
statute, passed a by-law to divert a lane in the
city, and leased the disused part of it at a
nominal rent. Their Act of incorporation gave
them power, under the head of " Public
Health," to pass by-laws for (inter alia)
" stopping up lanes " : — Held, that they had
power to divert the lane, though it was not
shewn to be necessary on grounds of health,
and that it was not outside their powers be-
cause steps taken in the public interest were
accompanied by a benefit specifically accruing
to private persons ; and that enacting a by-law
which benefited some persons more than others
was not " giving a bonus " within section 194
of the Municipal Act, 1906. United Buildings
Corporation v. Vancouver City, 83 L. J. P.C.
363; [1915] A.C. 345; 111 L. T. 663— P.C.
Negligence — Damages for Injury Causing
Death — Action by Administrator — Nature of
Action.) — An action by the administrator of a
deceased person under the Families Compensa-
tion Act of British Columbia, which is practi-
cally identical with Lord Campbell's Act, to
recover, on behalf of the father and mother,
damages for negligence causing the death of
the deceased, is not a suit " for indemnity for
damage or injury suffered by the plaintiff,"
inasmuch as the Families Compensation Act,
like Lord Campbell's Act, gives a new cause
of action and does not merely remove the
operation of the maxim Actio personalis
jnoritur cum persona ; and therefore such an
action is not barred by section 60 of the Con-
solidated Kailway Act of British Columbia at
the end of six months from the death of the
deceased. British Columbia Electric Railway
V. Gentile, 83 L. J. P.C. 353; [1914] A.C.
1034 ; 111 L. T. 682 ; 30 T. L. K. 594— P.C.
Street Railway — Statutory Powers — Agree-
ment with Corporation — "Right, franchise,
or privilege" — Ultra 'V^ires.] — Where a street
railway company had by statute power to
construct lines of railway along such of the
streets, roads, and highways within the limits
of a municipality as the corporation should
direct, and the corporation made an agreement
with the company consenting to the exercise by
the company of their powers over certain
streets, and covenanting that in certain events
they would consent to the company exercising
their powers over other streets, such agree-
ment does not confer " a right, franchise, or
privilege " on the company within the meaning
of section 64 of the Municipal Clauses Act,
1896, of British Columbia, and does not
require the assent of the electors in accordance
with that section to render it valid. British
Columbia Electric Railway v. Stewart; Point
Grey Corporation v. Stewart. 83 L. J. P.C.
53; [1913] A.C. 816; 109 L. T. 771— P.C.
Water Rights — Riparian Proprietor —
Recorded Water.] — A riparian projirietor hold-
ing land under a Ci"own grant made after the
passing of the Water Privileges Act, 1892, of
British Columbia (c. 47 of 1892), can only
acquire water rights by obtaining a record
under the Acts which provide for such grants
by the Crown, or by a special statutory title,
all water unrecorded and unappropriated at
the date when the Act came into force being
vested in the Crown in right of the province.
Cook V. Vancouver City, 83 L. J. P.C. 383;
[1914] A.C. 1077; 111 L. T. 684— P.C.
203
COLONY.
204
d. New Brunswick.
Succession Duty — Domicil of Testator —
Local Administration.] — Succession duty is
payable in respect of property locally situate
in a St. John's, New Brunswick, bank, and
belonging to a testator who was domiciled in
Nova Scotia, under the New Brunswick Suc-
cession Duty Act, 1896 (Consolidated Statutes,
1908), s. 5, sub-s. 1, which enacts that " All
property, whether situate in this province or
elsewhere, . . . shall be subject to a succes-
sion duty, to be paid to the use of the province
over and above the fees provided by the chapter
of these Consolidated Statutes relating to Pro-
bate Courts." Rex v. Lovitt, 81 L. J. P.C.
140; [1912] A.C. 212; 105 L. T. 650;
28 T. L. E. 41— P.C.
e. Nova Scotia.
Taxation — Exemption — Cost of Construction
of Sewers.] — By an agreement made between
the appellant and the respondent, in considera-
tion that the respondent company would
establish a manufactory in the city of Halifax,
it was agreed that " the City will grant to the
company a total exemption from taxation for
ten years on its buildings, plant and stock,
and on the land on which its buildings used
for manufacturing purposes are situated . . .
the foregoing exemption not to apply to the
ordinary water rate " : — Held, that under the
agreement the company were exempt from
contributing to the cost of the construction of
public sewers, constructed before the expira-
tion of the period of ten years from the date
of the agreement, in the streets in which its
buildings were situated. Halifax City v.
Nova Scotia Car Works, 84 L. J. P.C. 17;
[1914] A.C. 992; 111 L. T. 1049— P.C.
f. North-West Territories.
Chattel Mortgage — Costs and Charges in
Respect of Seizure — Statutory Scale — Penalty
for Excess — Discretion of Court.]— Section 2
of the Xorth-West Territories Consolidated
Ordinances, 1898, c. 34, provides that in
respect of seizures under chattel mortgages and
bills of sale, the costs and charges shall be
such as are fixed in the schedule to the
Ordinance ; and section 3 provides that if
greater or other costs be taken by the person
making the distress, the Court may order him
to pay treble the amount taken in excess to
the party aggrieved. The Interpretation
Ordinance (c. 1 of 1898) by section 8, sub-
section 2, provides that the expression "may"
shall be construed as permissive : — Held, that
the schedule was not inclusive and dealt only
with the costs of what were the ordinary and
universal features of realisation by seizure and
sale, but did not refer to the costs of other
acts which might be agreed upon as necessary
and proper in the particular case, as between
mortgagor and mortgagee, for the proper
realisation of the property seized, and that in
any case the Court had a discretion as to the
infliction of the penaltv. McHugh v. Union
Bank of Canada, 82 L. J. P.C. 65; [1913]
A.C. 299 ; 108 L. T. 273 ; 29 T. L. R. 305— P.C.
g. Ontario.
See also Vol. III. 513, 2301.
Assignment of Chose in Action.] — The
Ontario statute dealing with the assignment
of Glioses in action is substantially in the same
terms as section 25 of the Judicature Act, 1873,
and only enables such assignment to be made
subject to existing equities. Parsons v.
Sovereign Bank of Canada, 82 L. J. P.C. 60;
[1913] A.C. 160: 107 L. T. 572; 20 Manson,
94; 29 T. L. K. 38— P.C.
Bank — Agreement between Two Banks —
Construction — Purchase or Assignment for
Limited Purposes.] — By a deed made in con-
formity with a resolution passed by the
directors of the Ontario Bank, now in liquida-
tion, that the Bank of Montreal should be
asked to re-discount the loans of the Ontario
Bank and to undertake to meet the demands
of its depositors, in consideration whereof the
Ontario Bank should transfer such loans and
all documents relating thereto and should
transfer to the Bank of Montreal all the right,
title, and interest in all its debts and choses
in action, the Bank of Montreal agreed to
purchase by way of discount and re-discount,
at the rate mentioned, all the call and current
loans and overdue debts of the Ontario Bank,
the Bank of Montreal to be entitled to the
benefit of such transfer, and on the final
adjustment of accounts to pay the sum men-
tioned in the deed : — Held, that the deed did
not constitute an out-and-out sale of the
goodwill and assets of the Ontario Bank, but
a transfer of assets for the limited purposes
specified in the deed. McFarland v. Bank of M
Montreal, 80 L. J. P.C. 83; [1911] A.C. 96; 1
103 L. T. 436 ; 27 T. L. R. 55— P.C.
Common School Lands Fund — Liability to
Account for Money Constructively Received —
Jurisdiction of Arbitrators.] — An award was
made in an arbitration constituted in pur-
suance of Dominion and Provincial Acts of
Parliament for the distribution of the revenues
derived from lands set apart by Parliament
for common school purposes among the several
provinces : — Held, that the arbitrators had
only jurisdiction to deal with the sums actually
received in respect of each province, and were
not competent to deal with any question of
constructive receipt of moneys which were
not, but might or ought to have been received
but for the negligence or omission of any pro-
vince. Att.-Gen. for Ontario v. Att.-Gen. for
Quebec (72 L. J. P.C. 9; [1903] A.C. 39)
followed. Att.-Gen. for Quebec v. Att.-Gen.
for Ontario, 80 L. J. P.C. 35 ; [1910] A.C. 627 ;
103 L. T. 328; 26 T. L. R. 679— P.C.
Electric Power Company — Power to Erect
Poles to Carry Power Lines without Leave of
Municipality.] — The powers given to the
appellants by their Act of incorporation passed
in 1902 to enter upon streets for the purpose of
erecting poles to carry power lines for the con-
veyance of electricity, without first obtaining
the leave and licence of the municipality
are not restricted by the provisions of the
Railway Acts. Toronto and Niagara Power
205
COLONY.
206
Co. V. North Toronto Corporation. 82 L. J.
P.C. 14; [1912] A.C. 834; 107 L. T. 182;
28 T. L. E. 563— P.C.
Mining Claim Recorded but not Patented —
Tenant at Will — Execution.] — By section 68
of the Ontario Mining Act a licensee " until he
obtains a patent shall be a tenant at will of
the Crown in respect of the mining claim " : —
Held, that this referred only to the relations of
the claimant to the Crown before the Crown
had parted with its rights by patent, and did
not affect the position of the claimant as
against other subjects of the Crown ; and
therefore the interest in a mining claim duly
recorded, but not yet patented, is exigible for
a judgment debt due from the claimant.
McPherson v. Temiskaming Lumber Co.
(82 L. J. P.C. 113; [1913] A.C. 145) followed.
Clarkson v. Wishart, 83 L. J. P.C. 59; [1913]
A.C. 828; 109 L. T. 775; 29 T. L. R. 778—
P.C.
Section 123 of the Ontario Mining Act,
1908, gives the Mining Commissioner power to
dispense with a transfer in writing executed
by the claimant. lb.
Natural Gas — Conveyance of Land in Fee
— Exception of Reservation — Mines and
Minerals — Springs of Oil.] — A reservation or
exception in a conveyance of land to the
respondent in 1867 of " all mines and quarries
of metals and minerals, and all springs of oil
in or under the said land, whether already dis-
covered or not,"' — Held, not to include natural
gas. Barnard-.4rgue-Roth Stearns Oil and Gas
Co. V. Farquharson. [1912] A.C. 864 ; 107 L. T.
332; 57 S. J. 10; 28 T. L. E. 590— P.C.
Railway — Minerals under Line — Compensa-
tion to Owner for not Working.] — By the
common law both of England and Ontario,
except so far as altered by legislation, when
land is sold with a reservation of the minerals
to the vendor, he cannot, in the absence of a
special bargain, so work them as to let down
the surface. But under the Canadian Eailway
Act a railway company which has acquired the
surface is not, as by the English Railways
Clauses Consolidation Act, 1845, deprived of
the natural right of support from subjacent
and adjacent minerals, but is put on terms to
compensate the mineral owner at once for the
loss of value caused by the liability to support
which rests on him after the titles to the
minerals and the surface have been severed,
and, in the absence of agreement, the entire
amount of compensation is to be ascertained
by arbitrators once for all, as at the date of
the deposit of the plans ; and upon payment
of the compensation the mineral owner is
restrained from working his minerals excepting
under such conditions as may be imposed by
the Eailwav Board. Davies v. James Bay
Raihcay. 83"L. J. P.C. 339; [1914] A.C. 1043;
111 L. T. 946: 30 T. L. E. 633— P.C.
Railway and Municipal Board — Powers
— "Tracks" — Agreement to Keep Road in
Proper Repair — Reconstruction.] — A street
railway company, by an agreement confirmed
by Act of Parliament, were bound where their
rails were " laid upon the travelled portion of
the road " to " keep clean and in proper repair
that portion of the travelled road between the
rails, and for eighteen inches on each side of
the rails : — Held, that there was no obligation
on them to reconstruct this space so as to make
it a roadway of an improved character such
as the road authority proposed to make of the
rest of the road ; and that the Ontario Eailway
and Municipal Board Amendment Act, 1910,
s 3, which gives the Board power to order
repairs or improvements or changes in any
"tracks," did not give the Board jurisdiction
to make an order directing the company to
carry out such reconstruction of the roadway.
Toronto Suburban Railway v. Toronto Corpora-
tion, 84 L. J. P.C. 108; [1915] A.C. 590;
112 L. T. 788— P.C.
Salteaux Indians — Treaty with — Extinction
of Indian Interest in Lands — Repayment by
Ontario to the Dominion of Outlay in Respect
of Lands in Ontario.] — In 1873 the interest in
an extensive tract of land of an Indian tribe
was extinguished in return for certain pay-
ments and the grant of certain rights by the
Crown. It was subsequently discovered that
the greater part of the land was in Ontario.
The Dominion claimed contribution from
Ontario in relief of the burden undertaken by
the Dominion in respect of the Indians : —
Held, that the Dominion Government was not
entitled to such contribution, as in concluding
the treaty the Dominion was not acting on
behalf of or as trustee for Ontario, but for the
benefit of the whole Canadian nation. Dictum
of Lord Watson in St. Catherine's Milling and
Lu77iber Co. v. Reg. (58 L. J. P.C. 54;
14 App. Cas. 46) disapproved. Dominion of
Canada v. Province of Ontario, 80 L. J. P.C.
32; [1910] A.C. 637; 103 L. T. 331;
26 T. L. R. 681— P.C.
Timber — Right to Timber Growing on
Mining Locations — Trespass — Subsequent Per-
mission to Trespasser to Retain Timber —
Rights of Mining Owner.] — By section 39 of
the Mines Act of Ontario all pine trees on
Crown lands sold or granted as mining lands
are reserved to the Crown, subject to the right
of the lessees to cut such trees as are necessary
for building, fencing, and fuel, or working the
mines, and licensees under the Crown may
enter on such lands to cut and remove the
timber ; and the rights of the Crown in such
timber are not affected by the provisions of
section 2 of the Crown Timber Act (Rev. Stat.
Ont. 1897, c. 32). The Crown granted per-
mission to the appellant company to cut
timber upon certain lands. M. and D., sub-
contractors under the appellants, trespassed
upon certain other Crown lands held by the
respondents under mining leases, and cut
timber thereon. The Crown timber agent,
upon being informed of the trespass, stopped
M. and D. from cutting any more timber on
the respondents' lands, but allowed them to
remove the timber already cut by them, and
received payment for it : — Held, that the
property in the timber so unlawfully cut
207
COLONY.
208
remained in the Crown, and though the
respondents might have had a title to it as
against a trespasser they could not recover
the value from the appellants after the Crown
had allowed them to remove it. Eastern Con-
struction Co. V. National Trust Co., 83 L. J.
P.C. 122 ; [1914] A.C. 197 ; 110 L. T. 321—
P.O.
Timber Licence — Interest in Land —
Execution — Seizure.] — A licence under the
Crown Timber Act of Ontario, 1897, to occupy
land and fell timber thereon and remove it
confers upon the licensee an interest in land
liable to seizure and sale under a writ of
execution. Glenioood Lumber Co. v. Phillips
(73 L. J. P.C. 62; [1904] A.C. 405) approved.
Canadian Pacific Railway v. Rat Portage
Lumber Co. (10 Ont. L. R. 273) disapproved.
McPherson v. Temiskaming Lumber Co.,
82 L. J. P.C. 113; [1913] A.C. 145; 107 L. T.
664 ; 29 T. L. R. 80— P.C.
h. Quebec.
See also Vol. III. 513, 2306.
Accident — Contributory Negligence.] — By
the law of Quebec contributory negligence on
the part of a plaintiff is no defence in an action
for damages for injury caused by the negligence
of the defendant, but is only a ground for the
reduction of damages; but in Quebec, as in
England, a plaintiff cannot recover damages if
his own negligence is the sole effective cause
of the injury complained of. Canadian Pacific
Railway v. Frechette, 84 L. J. P.C. 161;
[1915] A.C. 871; 31 T. L. R. 529— P.C.
Limitation of Amount Recoverable.] —
Article 7322 of the Revised Statutes of Quebec
(1909) provides for the payment of " rents "
or annuities to workmen injured in the course
of their employment calculated with reference
to the wages which they were earning at the
time of the injury; and by sub-section 2, " The
capital of the rents shall not, however, in any
case except in the case mentioned in article
7325 " (which relates to accidents caused by
" the inexcusable fault " of the employer)
" exceed two thousand dollars " : — Held, that
this sub-section applies only to the case in
which the workman has exercised the option,
given to him by article 7329, of having the
capital of the rent due to him paid to an insur-
ance company. Decision of the Court of
King's Bench for the Province of Quebec
(22 Quebec L. R. K.B. 207) affirmed.
Canadian Pacific Railway v. MacDonald,
84 L. J. P.C. 243; [1915] A.C. 1124;
31 T. L. R. 600— P.C.
Action against a Minor.]— By the law of
the Province of Quebec minority is an absolute
bar to an action, and a minor is incapable of
suing or being sued, and if he is sued and
served as a defendant he is not thereby made
a party to the action at all, and there is no
properly constituted action against him.
Levins v. Serling (No. 1), 83 L. J. P.C. 295;
[1914] A.C. 659; 111 L. T. 355— P.C.
Montreal City Charter — Authorised Ex-
penditure.] — Expenditure authorised by the
city council of Montreal, or expenditure under
the instructions of the council and carried into
effect through the finance committee of the
council, is not invalidated by a departure from
ordinary routine or infraction of a by-law ; nor
is a person who takes part in such expenditure
liable to the penalties attached by section 14,
article 338 of the Montreal City Charter, to
acts and defaults of a very different description.
Lapointe v. Larin, 81 L. J. P.C. 66; [1911]
A.C. 520; 105 L. T. 263— P.C.
Seigniory — Title — Trust — Aboriginal Title
or Prescription.] — By an Act of 1840 of Lower
Canada — now contained in the Consolidated
Statutes of Lower Canada, 1861 — the respon-
dents were declared to be a corporation, and
the corporation's title to the seigniory of the
Lake of Two Mountains was confirmed, and it
was enacted that the corporation should hold
it as fully as their predecessors for the purposes
therein specified and for the support of such
other religious, charitable, and educational
institutions as might from time to time be
approved by the governor of the province : —
Held, that the Act placed beyond question the
title of the respondents to the seigniory, and
that the appellants could not establish an
independent title to possession or control in the
administration. Corinthe v. St. Sulpice, Mon-
treal, Seminary, 82 L. J. P.C. 8; [1912] A.C.
872 ; 107 L. T. 104 ; 28 T. L. R. 549— P.C.
3. Ceylon.
See also Vol. III. 567, 2315.
Partnership — Dissolution — Suit for Partner-
ship Accounts — Parol Evidence of Partnership.]
—The Ceylon Ordinance No. 7 of 1840, s. 21,
provides that " No . . . agreement, unless it
be in writing and signed by the party making
the same, . . . shall be of force or avail in
law for any of the following purposes : . . .
(4) For establishing a partnership where the
capital exceeds one hundred pounds. Pro-
vided that this shall not be construed to pre-
vent third parties from suing partners, or
persons acting as such, and offering in evidence
circumstances to prove a partnership existing
between such persons, or to exclude parol
testimony concerning transactions by or the
settlement of any account between partners " :
— Held, that the Ordinance applied to cases
where the parties had acted as if they were
partners in fact, and some dispute bad arisen
as to their partnership rights or property ; and
therefore a suit for partnership accounts after
the dissolution of a de facto partnership could
not be maintained in the absence of any agree-
ment in writing between the partners, and that
this Ordinance was not affected by Ordinance 22
of 1866, which enacted that the English law
of partnership was the law of Ceylon.
Anonymous Case (Vander Straaten's Rep. 195)
overruled. Judgment of the Supreme Court of
Ceylon (11 Ceylon New L. R. 254) reversed.
Pate V. Pate, 84 L. J. P.C. 234; [1915] A.C.
1100; 31 T. L. R. 590— P.C.
209
COLONY
210
Possessory Action — Trustee and Manager of
Mosque — Forcible Possession.] — The trustee
or manager of a mosque •who has been in
possession for more than the requisite period of
a year and a day is entitled under the Ceylon
Ordinance 22 of 1871 to bring a possessory
action, and to an injunction against persons
■who have forcibly dispossessed him. Idroos
Lebbe Azeez v. Mohamed Ismail Mudliyar,
81 L. J. P.O. 123; [1911] A.C. 746; 105 L. T.
417; 27 T. L. E. 580— P. C.
Title — Grant of Land with Restraint on
Alienation — Conveyance by Grantor and
Grantee.] — By a deed of gift made in 1882
the donor gave to the respondent a certain
property as a gift " absolute and irrevocable,"
subject to the condition that the donor should
have possession and enjoy the income thereof
until the donee should reach the age of twenty-
five. Then, after the donee should have
attained twenty-five, if the donor should be
living, the donee was not to be at liberty to
alienate the property. The donee attained
twenty-five in 1891 and died unmarried and
without issue in 1896. By a deed dated
December 5, 1893, and registered on Decem-
ber 7, which recited that the donee had attained
twenty-five and had been in possession and
enjoyment of the property since 1891, the donor
granted " liberty power and licence " to the
donee to sell and convey the property to the
respondent, and a conveyance was executed
accordingly. In October, 1893, the respondent
bound himself within twelve calendar months
to sell to W. "free from all incumbrances
whatsoever," the aforesaid premises : — Held,
that as the donee under the deed of 1882 was
precluded from alienating the property, the
deed of October, 1893, was in excess of his
rights, and could not stand in the way of
the rights effectively given by the deed of
December, 1893. Gunatilleke v. Fernando,
81 L. J. P.O. 191: 106 L. T. 306— P.O.
Possession by Co-parceners of Intestate —
Presumption of Ouster — Adverse Possession
— Prescription of Actions.] — The law of Ceylon
by the Limitations Ordinance No. 22 of 1871
is the same as that which prevailed before the
Statute of Limitations. 3 & 4 Will. 4. c. 27,
by which the possession of any one co-parcener
is the possession of the others, and cannot be
put an end to by anything short of ouster or
its equivalent ; and such possession must be
adverse to or independent of the title of the
other co-owners. Corea v. Appuhamy, 81 L. J.
P.C. 151; [1912] A.C. 230; 105 L. T. 836—
P.C.
The brother of an intestate who died in
1878 took sole possession of the intestate's
property, which he settled upon himself and
his son. The co-heirs, his sisters, sold their
rights and interest to the appellant, who
brought an action claiming to be co-owner : —
Held, that the brother's possession was by
descent, and enured for the benefit of himself
and the co-parccners. lb.
Joint Will of Husband and Wife — Com-
munity of Property — Life Usufruct — Fidei-
commissum.] — Under a joint will made in
1878 by a husband and wife, who were
married in community of property, after
bequests to children on marriage or the attain-
ment of twenty-five, it was directed that
certain properties, including a synagogue and
cottage therein described, were not to be
alienated or incumbered, but should devolve
on " the lawful heirs of the above-named
devisees : in the absence of any such lawful
heirs, on the persons whom we institute heirs,
or his or her lawful heirs." Upon the death
of both of the testators it was stated " The
synagogue and Barandeniya Cottage, in Col-
petty, to vest in Edwin." The testator died
in 1878, the testatrix in 1907. The son Edwin
died in 1882 intestate. He was one of the
instituted heirs. The testatrix adiated the
inheritance and accepted benefits under the
will. In an action by Edwin's widow and her
second husband, — Held, that the testatrix took
a usufruct, and not the dominium in synagogue
and cottage, and that Edwin took a vested
interest transmissible to liis heirs. Held, also,
that under the Ceylon Ordinance 15 of 1876
Edwin's widow took by inheritance half of
Edwin's property. Samaradiicakara v. De
Saram, 81 L. J. P.C. 75; [1911] A.C. 753;
105 L. T. 345— P.C.
Minerals — Action by Surface Owner to
Restrain Removal of — Waiver of Rights of
Crown after Commencement of Action — Effect
of Waiver.] — The respondent was the owner
of land under a grant from the Crown which
expressly reserved to the Crown all mines and
minerals in or upon the said lands, and he
brought an action against the owner of adjacent
land to restrain him from trespassing on his
land and taking minerals from under it, and
for the value of the minerals so taken. After
the commencement of the action he obtained a
written statement from the Crown that no
claim was made on the part of the Crown to
the minerals in question, " anything in the
wording of the Crown grant notwithstanding" :
— Held, that this waiver of the rights of the
Crown had no restrospective effect so as to
vest the title to the minerals in the respon-
dent, and that the action would not lie.
Fernando v. De Silva, 82 L. J. P.C. Ill;
107 L. T. 670— P.C.
Evidence — True Copy — Whether Use of
Word "Certify" Necessary.] — The provisions
of the Ceylon Evidence Ordinance, 1905,
relating to the admissibility in evidence of
certified copies of public documents ought to be
read as applicable to certificates given before
the date of the Ordinance, but in such cases
the use of the word " certify " is not essential,
provided that it appears that the officer
intended to attest the accuracy of the copy.
Muniandy Chetty v. Muttu Caruppen Chetty,
30 T. L. R. 41— P.C.
District Court — Jurisdiction."; — The District
Court of Kandy has power to award damages
for a continuous breach of agreement in
respect of the time both before and after action
211
COLONY
212
brought. De Soysa (Lady) v. De Pless Pol,
81 L. J. P.C. 12; [1912] A.C. 194 105 L. T.
642— P.C.
Practice — Inclusion in Claim of Different
Causes of Action.] — Section 34 of the Civil
Procedure Code, 1889, of Ceylon makes it
incumbent on a plaintiff to include the whole
of his claim in his action, and to ask for the
whole of his remedies, but its object is not to
compel the inclusion in one action of different
claims arising from the same transaction.
Therefore where an action was settled upon the
terms that the defendant should give to the
plaintiff two promissory notes for the amount
which an arbitrator found to be due to him,
and the plaintiff afterwards sued upon the
notes, but failed upon a point of form, — Held,
that it was open to him to bring a new action
on his original claim. Saminatlian v. Palani-
appa, 83 L. J. P.C. 131; [1914] A.C. 618;
L. R. 41 Ind. App. 142; 110 L. T. 913— P.C.
4. Gold Coast.
Concessions Court — Certification of Validity
of Concession — Priority of Certificate — Exclu-
sive Demise.] — By section 8 of the Gold Coast
Concessions Ordinance No. 14 of 1900, " No
proceedings shall ... be taken to give effect
to any concession " by a native chief " unless
such concession has been certified as valid by
the Court " ; and by section 23, " a certificate
of validity shall be good and valid from the
date of such certificate as against any person
claiming adversely thereto." The respondent
company obtained a concession of land with
all surface rights, with full and exclusive
powers to collect rubber, make clearings, con-
struct farms, and grow rubber and other
produce, with liberty to cut and carry away
trees and timber ; the concession also included
all mines, &c. The appellant company ob-
tained a concession of land, which included a
part of the land the subject of the respondents'
concession, with all mines and minerals, with
full and exclusive liberty to sink pits, take and
carry away minerals, and cut timber and trees
for the use of the mines and the erection of
buildings. The respondents' concession was
earlier in date than the appellants' concession,
but the certificate of the Court validating their
concession was later in date than the appel-
lants' certificate : — Held, that the Court below
was wrong in dismissing the opposition of the
appellants to the grant of a certificate to the
respondents, but that, notwithstanding the use
of the word " exclusive," the appellants' rights
were confined to those of mining lessees with
a right to such timber as they required for
purposes ancillary to such mining; and that,
subject to such rights, they had no power to
prevent the respondents from developing the
overlapping part of the land as an agricultural
and arboricultural property, and that the con-
cessions should be modified by the Court
accordingly. Waxsaw Exploring Syndicate v.
African Rubber Co., 83 L. J. P.C. 316; [1914]
A.C. 626; 111 L. T. 54— P.C.
An actual demise of land is not a " con-
cession" within the meaning of the Concessions
Ordinances. lb.
5. Guernsey.
See also Vol. III. 576, 2317.
Easement — Grant — Obligation of Owner of
Lower Ground to Receive Water Flowing
Naturally from Higher Ground.] — The law of
Guernsey does not allow of the constitution of
a servitude or easement except by express
grant, and a contract must be registered in
order to affect land in the hands of a successor.
But this rule does not apply to the natural
right of the proprietor of higher land to have
the water which naturally falls on his land
discharged on to the contiguous lower land of
another proprietor. Gibbons v. Lenfestey,
84 L. J. P.C. 158; 113 L. T. 55— P.C.
6. Hong-Kong.
See also Vol. III. 575, 2317.
Supreme Court — Jurisdiction — China and
Corea Order in Council, 1904 — British Subject
— British Protected Person — Soldier in Indian
Regiment — Criminal Charge — Evidence — Con-
fession— Admissibility.] — An alien who has
enlisted in a British Indian regiment stationed
in China is a person who " enjoys his Majesty's
protection " by virtue of the Foreign Juris-
diction Act, 1890, and is therefore subject to
the jurisdiction of the Supreme Court of China
and Corea. Ibrahim v. Regem, 83 L. J. P.C.
185; [1914] A.C. 599; 111 L. T. 20;
24 Cox C.C. 174 ; 30 T. L. E. 383— P.C.
A private in an Indian regiment murdered
one of the officers. Shortly afterwards, while
he was in custody, the commanding officer
asked him, " Why have you done such a sense-
less act? " and he replied, " Some three or
four days he has been abusing me, and without
doubt I killed him." At the trial the Judge
admitted this statement, which was objected
to by counsel for the defence. The prisoner
was convicted : — Held, that even if the evi-
dence was inadmissible — which semble that it
was not — there being ample undisputed evidence
aliunde of the guilt of the prisoner, and it being
very improbable that the statement influenced
the verdict of the jury, there was no such mis-
carriage of justice as would justify the Judicial
Committee in advising an interference in the
matter. lb.
7. Malay States.
Registration of Title — Effect — Rectification
of Register — Trustee.] — By section 4 of the
Registration of Titles Regulation, 1891, of the
Malay States, no instrument is effective to
convey any estate in land unless it is regis-
tered ; and by section 7 a certificate of title
issued by the Registrar to any purchaser of
land is made conclusive evidence that the
person named therein as proprietor of the land
is the absolute and indefeasible owner thereof,
and tlie title shall not be subject to challenge
except on the ground of fraud or of adverse
possession. By the Specific Relief Enactment,
1903, a " trustee " includes every person hold-
ing expressly, by implication, or constructively,
a fiduciary character. The appellant was in
possession of land under a grant which had
never been registered. The respondent com-
213
COLONY.
214
pany bought from the grantor land which in-
cluded the land so granted to the appellant,
with notice of his title, and informed the vendor
that they would make a separate arrangement
with him. They made no such arrangement,
and had all the land registered in their own
name : — Held, that they were in the position of
trustees for the appellant, that their registered
title having been obtained by fraud was not
conclusive as against his equitable title, and
that he was entitled to a rectification of the
register. Loke Yew v. Port Swettenham
Rubber Co., 82 L. J. P.O. 89; [1913] A.C.
491 ; 108 L. T. 467— P.C.
8. Newfoundland.
See also Vol. III. 591, 2320.
Contract — Construction — Telegraph —
Exclusive Right to Enter on Lands and Work
Telegraph,] — By an agreement between the
appellants and the respondents, the appellants
granted to the respondents the exclusive right
to enter on the lands of the railway and to
construct, maintain, and operate telegraphs for
the respondents' purposes. The respondents
further agreed to erect and maintain a wire
for the use of the railway for railway purposes
only : — Held, that the appellant company was
not precluded from the establishment and
working of a telegraph system on their own
land and for the purposes only of their own
business. Reid Newfoundland Co. v. Anglo-
American Telegraph Co., 80 L. J. P.C. 20;
[1910] A.C. 560; 103 L. T. 145; 26 T. L. E.
614— P.C.
Unauthorised User of Special Wire —
Account — Lapse of Time — Statute of Limita-
tions.]— The appellants, who were incor-
porated by an Act of the Newfoundland Legis-
lature, were assignees of a contract under
which they were entitled to use a special wire
erected and maintained by the respondents,
over which they were " not to pass or transmit
any commercial messages . . . except for the
benefit and account " of the respondents. In
fact they used the special wire for all the pur-
poses of their business, including the new and
extended lines of railway, their shipping busi-
ness, and other commercial undertakings : —
Held, that in respect of the unauthorised user
of the special wire the appellants were account-
able as trustees to the respondents for the
profits made by such unauthorised user, and
were not entitled to the protection of the
Limitation Acts, as the Newfoundland Trustee
Act, 1898, withholds such protection from a
trustee when proceedings are taken to recover
property retained by the trustee. Reid-New-
foundland Co. v. Anglo-American Telegraph
Co., 81 L. J. P.C. 224; [1912] A.C. 555;
106 L. T. 691 ; 28 T. L. E. 385— P.C.
Telegraph Cables — Company Carrying on
Telegraph Business in or from the Colony —
Taxation.] — By an Act passed in 1905 to
increase the revenue by imposing taxes upon
business transacted by telegraph companies
within and in transit through the colony the
Newfoundland Legislature imposed upon every
company " carrying on any telegraph business
in or from the colony " a certain annual tax in
respect of every telegraphic cable between the
colony and any place outside the colony for the
time being belonging to or worked by or on
behalf of the company, landed on, extended to,
or established in the colony. The appellants
were a telegraph company to which by a New-
foundland Act a right of landing cables was
given, but which was prohibited from compet-
ing with the Government or transporting or
receiving business from or to the colony without
the permission of the Government unless and
until the privilege was granted to some other
cable company. No such permission had been
given to the appellants or privilege granted to
any other cable company : — Held, that the
appellants were not liable to taxation under the
Act as a company carrying on any telegraph
business in or from the colony. Commercial
Cable Co. v. Att.-Gen. of Newfoundland,
82 L. J. P.C. 5; [1912] A.C. 820; 107 L. T.
101; 28 T. L. E. 537— P.C.
9. New Zealand.
See also Vol. III. 592, 2321.
Steamship Carrying Mails under Contract
with Postmaster-General — Exemption from
Harbour DuesJ — By section 116, sub-
section 1 of the Harbours Act, 1908, " Nothing
in this Act shall charge with any dues — . . .
(d.) Any steamship carrying mails under any
contract made with the Postmaster-General,
in cases where it is provided by the terms of
such contract that such steamships shall be
exempt therefrom." By a contract made
between the appellant company and the Post-
master-General of New Zealand the company
was bound to carry mails between New Zealand
and San Francisco, and the contract provided
that no charge was to be made or levied under
the Act of 1908 at New Zealand ports " for any
of the steamships employed in the services
under this contract." Under a clause of the
contract the company obtained leave to extend
their service from New Zealand to Australia,
but they were not paid by the Postmaster-
General for this extended service : — Held,
that a steamship employed on the extended
service between Australia and New Zealand
was not employed under the contract, and was
not entitled to exemption from harbour dues ;
but that a ship was " carrying mails " under
the contract, so as to be entitled to exemption,
as soon as she was ready and willing to receive
the outgoing mails on board, subject only to
coaling and necessary repairs. Union Steam-
ship Co. of Netc Zealand v. Wellington Har-
bour Board, 84 L. J. P.C. 169; [1915] A.C.
622; 113 L. T. 203; 31 T. L. E. 292— P.C.
Income Tax — Deductions — Value of Stand-
ing Timber Cut during Year,] — A company
occupying laud, and carrying on the business
of saw millers and timber merchants, is not
entitled in its assessment for income tax to
deduct from the gross proceeds of its business
the value of the standing timber cut during
the year of assessinent. Kauri Timber Co. v.
Commissioner of Taxes, 83 L. J. P.C. 6;
[1913] A.C. 771; 109 L. T. 22; 29 T. L. R.
671— P.C.
215
COLONY.
216
Life Assurance — Paid-up Endowment.] — By
section 64 of the New Zealand Insurance Act,
1908, " No policy shall become void for non-
payment of premium so long as the premiums
and interest in arrear are not in excess of the
surrender value as declared by the company
issuing the same : — Held, that neither assured
nor assurer can contract himself out of this
section, or waive its effect, but that it has no
application to a policy bj' which the assurer
does not contract to pay any cash surrender
value, but to give a fully paid-up endowment.
Judgment of the Court below affirmed. Equit-
able Life Assurance Society of United States
V. Reed, 83 L. J. P.C. 195; [1914] A.C. 587;
111 L. T. 50; 30 T. L. E. 415— P.C.
Railway — Level Crossing over Highway —
Rights of Public.]— By section 191, sub-
section 2 of the New Zealand Public Works
Act, " Where a road or street crosses a railway
on a level the public right of way at such
crossing shall cease whenever any engine or
carriage on the railway is approaching and
within a distance of half a mile from such
crossing " -.—Held, that on the specified
approach of a train the public absolute
right to pass v.'as suspended, leaving
unaffected the question of other rights if
persons do in fact pass ; that a person attempt-
ing to pass was not in the position of a
trespasser or a bare licensee, and that the
section was no answer to a finding by a jury
that a person killed while crossing a level
crossing was killed by the negligence of the
railway authority. A by-law which requires
that " No person shall drive or attempt to drive
any vehicle or animal on any part of a public
road where the same crosses over or upon a
railway on the same level otherwise than at a
walking pace, and every person shall before
crossing the lines of rail comply with the direc-
tions upon the notice boards, ' Stop ! Look out
for the Engine,' " is unreasonable and cannot
be sustained. Decision of the Court of Appeal
of New Zealand affirmed. Rex v. Broad,
84 L. J. P.C. 247; [1915] A.C. 1110;
31 T. L. E. 599— P.C.
Settlements — Colonisation — Order in Council
— Effect — Native Title to Land — Crown
Grant.] — By an Order in Council dated
September 2, 1865, and made under the New
Zealand Settlements Act, 1863, the Governor
of New Zealand declared that certain lands
were " a district " within the meaning of the
Act, and further declared that such lands were
required for the purposes of the Act, and
ordered that such lands should be " set apart
and reserved as sites for settlements for
colonisation agreebly to the provisions of the
Act" and further provided that " no land of
any loyal inhabitant within the said district,
whether held by native custom or under Crown
grant, will be taken, except so much as may
be absolutely necessary for the security of the
country, compensation being given for all land
80 taken." On October 24, 1874, a Crown
grant of a portion of the lands was made to
certain loyal natives whose claims had been
approved by a Compensation Court : — Held,
that the Order in Council did not operate to
extinguish the native or any other title of any
loyal inhabitant, and that the effect of the
Crown grant was only to convey the legal
estate out of the Crown, and to transform the
native customary title into a freehold title.
Te Teira v. Te Roera Tareha (71 L. J. P.C.
11; [1902] A.C. 56) distinguished. Manu
Kapua V. Para Haimona, 83 L. J. P.C. 1;
[1913] A.C. 761; 108 L. T. 977— P.C.
Will — Insufficient Provision for Wife,
Husband, or Children — Discretion of the Court
in Ordering such Provision.] — In a case where
a man worth from 20,000/. to 30,000/., whose
first wife had obtained a divorce, had left his
whole property for the benefit of his second
wife and her children, and the Court in the
exercise of its discretion under the New
Zealand Family Protection Act, 1908, awarded,
with regard to the children by the first wife,
60Z. a year to one of the married daughters
and 40/. a year to each of the other two, the
sons being able to maintain themselves and
having maintained themselves for some years
before their father died, their Lordships
declined to interfere with the discretion so
exercised. Allardice v. Allardice, 81 L. J. P.C.
80; [1911] A.C. 730; 106 L. T. 225— P.C.
10. South Afbican Colonies.
a. Cape of Good Hope.
See also Vol. III. 561, 2328.
Will — Construction — Codicil to Mutual Will
— Fideicommissum.] — A codicil to a mutual
will executed by a husband and a wife in the
Cape of Good Hope bequeathed property to
their two sons, with a provision against aliena-
tion, on the understanding that the property
" shall remain in the first place for both of
them ; in the second place the eldest son of
our grandchildren shall always have the same
right thereto, and after the decease of their
parents remain in possession thereof, with this
understanding, however, that the other heirs
who may still be born shall enjoy equal share
and right thereto ... so that always the
eldest son of our grandchildren has the
privilege " : — Held, that after the death of the
two sons of the testators each of the two eldest
grandsons was entitled to his father's share
absolutely, and not subject to a fideicommissum
or restraint on alienation. De Jager v. De
Jager (55 L. J. P.C. 22; 11 App. Cas. 411)
followed. De Jager v. Foster, 80 L. J. P.C.
138; [1911] A.C. 450; 104 L. T. 721— P.C.
b. Natal.
See also Vol. III. 589, 2330.
Lessor and Lessee — Ultra Yires — Consent
of the Governor — Claim for Rescission of Con-
tract— Acquiescence in Action of Lessee.] — It
is not open to a lessee who has known for years
of operations which he alleges constitute a
trespass to make such operations subsequently
the ground for an action for rescission of the
contract of lease. South Africaii Bretveries v.
Durban Corporation, 81 L. J. P.C. 217; [1912]
A.C. 412; 106 L. T. 385— P.C.
The respondents brought an action to recover
certain rents and rates in respect of lands
217
COLONY.
218
leased or contracted to be leased by them to
the appellants. The lease was advertised for
sale by auction subject to certain conditions,
and by section 77 of the Natal Municipal
Corporations Act, 1872, the consent of the
Lieutenant-Governor of the colony was required
to the conditions on which such a lease was
put up for sale. One of the conditions of sale
made provision as to the erection and non-
erection of buildings, and certain penal conse-
quences were attached if the main provisions
as to buildings were not complied with. The
conditions as a whole were presented to the
Lieutenant-Governor, who, by letter, gave his
general consent thereto. The appellants set up
as a defence (inter alia) to the action that the
agreement itself was ultra vires of the respon-
dents by reason of the lease which was tendered
having been granted without the consent of the
Lieutenant-Governor, and claimed rescission of
the lease : — Held, that the provisions of sec-
tion 77 of the Act of 1872 had been sufficiently
complied with even if in the letter of consent
the above condition was not specifically men-
tioned, and that the appellants were not
entitled to rescission of the lease. lb.
The Government of the colony by agreement
with the respondents, the city of Durban,
executed certain works "for the public good and
benefit " on the land leased to the appellants,
such works following on arrangements made
upon public grounds with the colonial Govern-
ment, and upon colonial legislation, but the
appellants took no objection to the execution
of the works : — Held, that the action of the
respondents did not amount to a breach of their
agreement with the appellants so as to entitle
the latter to rescission of the lease. lb.
Mining Lease — Equitable Mortgage — Regis-
tration— Priority.] — A mining lease, which
contains power to enter upon the land and
work and dispose of the minerals under the
land is a lease within the meaning of Act
No. 19, 1884, of Natal, and requires regis-
tration. In the absence of registration there
can be no valid equitable mortgage by deposit
of title deeds, and the holder of such mort-
gage acquires no priority over the unsecured
creditors of the mortgagor. Munro v. Didcott ,
80 L. J. P.O. 65; [1911] A.C. 140; 103 L. T.
682; 27 T. L. R. 176— P.C.
c. Transvaal.
See also Vol. III. 2333.
Mutual Will — Construction — Surviving
Spouse Executor of Joint Estate — Rights of
Children.] — By the principle established in
Denyssen v. Mostert (41 L. J. P.C. 41 ; L. E.
4 P.C. 236) mutual wills. " notwithstanding
their form, are to be read as separate wills,
the dispositions of each spouse being treated
as applicable to his or her half of the joint
property." Natal Bank v. Rood. 80 L. J.
P.C. 22; [1910] A.C. 570; 103 L. T. 229;
26 T. L. R. 622— P.C.
Under such a will there is in the surviving
spouse, who is also appointed executor and
administrator, no community of property
between such spouse and the children after
the dissolution of the marriage by death. The
children are not liable for losses suffered or
incumbrances effected by the surviving spouse.
The administrator is not entitled to make a
profit out of the deceased spouse's estate. Any
profit is held on trust for the beneficiaries. lb.
By the Roman-Dutch law the children's
share is not limited to the legitima portio.
Under the law and settled practice of the
Transvaal the surviving spouse is entitled to
half the estate of the spouse first dying, plus
a child's portion. 76.
11. Seychelles.
Criminal Procedure — Embezzlement — Mis-
carriage of Justice.] — Section 216 of the
Seychelles Penal Code, which makes it a
criminal offence in any person entrusted for
any purpose with the property of another to
" embezzle, squander away, or destroy " any
such property to the prejudice of the true
owner, is not to be restricted to cases of failure
to restore the property in specific form, but
extends to ordinary cases of breach of trust
and wilful appropriation of the property of
another, but should not be extended to a mere
case of the mixture of the funds of another
with the funds of the bailee without any
criminal intention. To extend it to such a case
amounts to a grave miscarriage of justice.
Lanier v. Regem, 83 L. J. P.C. 116 [1914]
A.C. 221: 110 L. T. 326; 24 Cox C.C. 53;
30 T. L. R. 53— P.C.
12. Str.\its Settlements.
See also Vol. III. 595, 2333.
False Imprisonment — Want of Reasonable
and Probable Cause — Onus of Proof.]— The
appellant, who was born in Malacca and was a
British subject, went to a Chinese temple
and took part in a ceremony in connection
with a charm against sickness. The police,
thinking that the temple was the headquarters
of a secret society, on that day made a raid
upon it. One of the respondents laid an
information against the appellant under the
provisions of the Banishment Enactment, 1900,
in force in the Federated Malay States, and
the other respondent arrested him on a war-
rant in connection with the disturbance in
the temple. The appellant was confined in
prison for a fortnight, but ultimately no charge
was made against him. The appellant there-
upon brought an action for false imprisonment
against the two respondents. He gave evi-
dence describing his arrest, denying the
existence of any evidence against him, and
his ignorance of the reasons for his arrest : —
Held, that the appellant had not satisfied the
burden of proof imposed upon him by sec-
tion 18 of the Banishment Enactment. 1900,
inasmuch as mere innocence was not even
prima facie proof of want of reasonable and
probable cause, the burden of which proof lay
on the appellant in accordance with the terms
of the enactment. Yap Hon Chin v. Jones-
Parry, 28 T. L. R. 89— P.C.
219
COLONY,
220
III. APPEALS TO PER^Y COUNCIL.
See also Vol. III. 604, 2335.
Prerogative Right to Appeal to the Crown
— Final Order.] — An ai:)peal lies to the Crown
by its special prerogative from orders either
of a provincial Court of Appeal or of the
Supreme Court of Canada, even although they
are by statute declared to be final, and
although they are expressed in the form of an
opinion upon which the Courts appealed from
are to make the proper orders. Canadian
Pacific Railway v. Toronto City, 81 L. J. P.C.
5 ; [1911] A.C. 461 ; 104 L. T. 724 ; 27 T. L. E.
448— P.C.
Misdirection — New Trial — Objection Taken
for the First Time on Final Appeal — Negli-
gence— Contributory Negligence.] — It is not
open to a party who has not used his oppor-
tunity in the Court of Appeal to state for the
first time before the Judicial Committee an
objection to the verdict of a jury on the ground
of misdirection. White v. Victoria Lumber
and Manufacturing Co., 80 L. J. P.C. 38;
[1910] A.C. 606 ; 103 L. T. 323— P.C.
In an action for damages for the death
of the appellant's son, the jury awarded
damages. The majority of the Supreme
Court ordered a new trial — one Judge on the
ground of contributory negligence on the part
of the dead man, the others being of opinion
that the damages were excessive. Before the
Judicial Committee the further ground was
taken of misdirection : — Held, that it was too
late to put forward a plea of misdirection, not
previously suggested, on the final appeal. lb.
Re-opening Case — Concurrent Findings of
Fact — Fraud — Evidence — Depositions
— Death of Persons whose Conduct is
Impeached.] — In the case of transactions
which have stood unchallenged for many years,
there is a general presumption in favour of
good faith and validity, and the Court will not
draw inferences against the integrity of
deceased persons if the known facts and
existing documents are capable of a reasonable
explanation. "^ATaere there have been con-
current findings of fact in the Courts below,
but all the evidence before those Courts was
taken on depositions, not orally, the Judicial
Committee will allow the facts to be re-opened
on appeal. Vatcher v. Paull. 84 L. J. P.C.
86; [191.5] A.C. 372: 112 L. T. 737— P.C.
Criminal Appeal.] — The Crown has
authority by virtue of the prerogative to review
the decisions of all colonial Courts, whether
the proceedings are of a civil or a criminal
character, unless such authority has been
expressly parted with ; but the Judicial Com-
mittee will not interfere with the course of
criminal justice in a colony unless it is clearly
established that there has been a violation
of the natural principles of justice in its
very foundations. Arnold v. King-Emperor,
83 L. J. P.C. 299: [1914] A.C. 644; L. E. 41
Tnd. App. 149; 111 L. T. 324; 24 Cox C.C.
297; 30 T. L. E. 462— P.C.
A charge to a jury must be read as a whole,
and the Judicial Committee will not interfere
in the region of fact, unless something gross,
amounting to a misdescription of the whole
bearing of the evidence, has occurred, though
some portions of it may be the subject of
difference of opinion. Falkland Islands Co. v.
Reg. (1 Moore P.C. (n.s.) 299) approved. lb.
The Judicial Committee of the Privy
Council is not in the position of a Court of
Criminal Appeal and does not advise the
Crown to interfere in a criminal case unless
there has been a violation of the principles of
natural justice or a gross violation of the rules
of procedure. Special leave to appeal from a
conviction for murder refused on the above
ground, where it was alleged that the jury
had been in communication during the trial
with persons who were not their custodians.
Armstrong v. Regem, 30 T. L. E. 215— P.C.
The Judicial Committee of the Privy
Council have no power to sit as a Court of
Criminal Appeal. They can only interfere
in a criminal case if what has been done in
the Court below is grossly contrary to the
forms of justice, or violates fundamental
principles. Where there is evidence to go to
the jury in a criminal case they will not express
any opinion as to the propriety of the verdict,
or of the summing-up of the Judge who tried
the case. Clifford v. King-Emperor, 83 L. J.
P.C. 152; L. E. 40 Ind. App. 241— P.C.
Stay of Execution — Prerogative of
Pardon.] — The Judicial Committee is not a
Court of Criminal Appeal, and has no poMer
to stay the execution of a sentence. The
tendering of advice to His Majesty as to the
exercise of his prerogative of pardon is not
within the province of the Judicial Committee,
but is a matter for the Executive Government.
Balmukand v. King -Emperor. 84 L. J. P.C.
136 ; [1915] A.C. 629 ; L. E. 42 Ind. App. 133 ;
113 L. T. 55— P.C.
Admission of Evidence — Miscarriage of
Justice.] — The Privy Council will not inter-
fere with a conviction on the ground of the
admission of evidence of a statement made by
the prisoner, when in custody, in reply to a
question by his superior officer, if the admission
of such evidence has not caused any mis-
carriage of justice. Ibrahim v. Regem, 83 L. J.
P.C. 185; [1914] A.C. 599; 111 L. T. 20;
24 Cox C.C. 174; 30 T. L. E. 383— P.C.
Costs — Crown.] — The rule laid down in
Johnson v. Regem (73 L. J. P.C. 113; [1904]
A.C. 817), that the Crown neither pays nor
receives costs unless the case is governed by
some local statute or there are exceptional
circumstances justifying a departure from the
ordinary rule, applies to criminal as well as to
civil cases. Vaithinatha Pillai v. Regem,
29 T. L. E. 709— P.C.
Leave to Appeal in Forma Pauperis —
Costs.] — An order for leave to appeal in
forma pauperis takes effect only from the date
at which it is made ; costs therefore incurred
before that date are not affected thereby.
Levine v. Serling (No. 2). 83 L. J. P.C. 295;
[1914] A.C. 665; 111 L. T. 355— P.C.
221
COMMISSION— COMMONS.
222
COMMISSION.
Of Agents." — See Principal and Agent.
COMMISSIONERS.
Charity.] — See Charity.
COMMITMENT.
Under Debtors Act.] — See Debtors Act.
For Contempt of Court.] — See Contempt of
COUBT.
By Magistrates.] — See Justice of the
Peace.
COMMON
EMPLOYMENT.
See MASTER AND SERVANT.
COMMONS.
I. Rights, 221.
II. Incloscre, 224.
III. Metropolitan Commons, 225.
I. RIGHTS.
See also Vol. III. 651, 2344.
Claim of Right by Prescription — Enjoy-
ment in Pursuance of Claim of Right to Soil.]
— The claim to a right of common or profit
referred to in section 1 of the Prescription
Act, 1832, means a claim to such right, and
not a claim to the soil upon which the right is
to be exercised. Consequently no right by
prescription to a right of common or profit can
be established by proof of enjoyment thereof
for the period specified in section 1, under a
claim of right to the soil. Lyell v. Hothfield
(Lord), 84 L. J. K.B. 251 ; [1914] 3 K.B. 911 ;
30 T. L. R. 630— Shearman, J.
Turbary — Estovers — Destruction of House
to which Rights were Appurtenant — Re-erec-
tion of House not on Old Foundations —
Intention to Preserve Rights — Continuation
of Rights.] — Where an ancient house, to
which rights of common of turbary and estovers
are appurtenant, is pulled down, and another
house is erected in substitution for and in
continuance of the old house with the intention
of preserving the rights of common, those
rights will continue as appurtenant to the new
house, even although it is not erected on the
foundations of the old house but on a site
adjacent thereto, provided that no greater
burden is imposed by the new house upon the
lands over which the right is enjoyed than was
imposed by the old house. Att.-Gen. v. Rey-
nolds, 80 L. J. K.B. 1073; [1911] 2 K.B. 888;
104 L. T. 852— Hamilton, J.
Waste of Manor — Turbary — Estovers —
Nuisance — Right of Commoners to Abate —
Injunction — Damages.] — The plaintiff, who
was lord of the manor of H., had a right to
the soil of two heaths, each of which was two
hundred acres in extent, subject to the rights
of commoners, including rights of turbary and
estovers. Trees had grown up on the heaths,
and the defendants, who were commoners,
believing that they were acting within their
rights, felled the trees : — Held, that the plain-
tiff was entitled to an injunction and damages
for trespass, even if it was assumed that the
trees constituted a nuisance. Hope v. Osborne,
82 L. J. Ch. 457 ; [1913] 2 Ch. 349 ; 109 L. T.
41 ; 77 J. P. 317 ; 11 L. G. R. 825 ; 57 S. J.
702 ; 29 T. L. R. 606— Neville, J.
Commoners are not entitled to exercise the
right of abatement unless, owing to the
nuisance, they are completely excluded from
the enjoyment of their rights. Unless this is
the case, they ought to resort to the Courts
for the purpose of ascertaining their rights and
enforcing them. lb.
Interference with Rights of Fellow Com-
moner — Right of Action by Fellow Com-
moner.1 — Anything by which a commoner's
right of common is disturbed, any unlawful
consumption or destruction of the herbage, is
actionable, even when done by one of the
other persons having a right of common. King
V. Brown, Durant d- Co., 82 L. J. Ch. 548';
[1913] 2 Ch. 416; 109 L. T. 69; 57 S. J. 754;
29 T. L. E. 691— Joyce, J.
Certain owners of an enfranchised copyhold,
entitled to common of pasture for their cattle
levant and couchant over the waste of the
manor, damaged the herbage on the waste by
conveying goods to and from their premises
over the waste : — Held, that the plaintiff, a
fellow commoner, was entitled to an injunction
to restrain such interference with his rights
of common and to damages. lb.
Obligation to Fence against Animals of
Peculiar Disposition — Exceptional Animals. 1
— The plaintiff was a farmer having common-
able rights on the forest of Dartmoor, and
the defendant was the occupier of a new take
inclosed from the forest which he was ad-
mittedly under an obligation to fence against
commonable animals. Certain Scotch sheep
belonging to the plaintiff escaped from the
forest into the defendant's new take by
leaping over or breaking through the defen-
dant's fences, and were distrained by the
defendant as cattle damage feasant. The
223
COMMONS.
224
plaintiff brought an action against the defen-
dant for illegal distress, alleging that the
sheep had escaped into the new take owing to
the defendant's fences being of an insufficient
character. A referee to whom questions of
fact were referred by consent found, expressly
or in effect, that Scotch sheep possessed greater
activity and jumping power than the ordinary
moorland sheep of Dartmoor ; that the defen-
dant's fences were sufficient in height and
strength to keep out ordinary moorland sheep,
but not to keep out Scotch sheep ; and that in
this respect the defendant's fences resembled
the fences on Dartmoor generally, which were
all of one and the same character : — Held, that
the defendant's obligation to fence was not an
absolute obligation to provide fences which
would keep out all kinds of sheep including
those which, like Scotch sheep, possessed
exceptional powers of jumping, but was only
a limited obligation to provide such fences as
were usual on Dartmoor ; and that the defen-
dant was not liable. Coaker v. Willcocks,
80 L. J. K.B. 1026; [1911] 2 K.B. 124;
104 L. T. 769; 27 T. L. R. 357— C.A.
Damage by Cattle of Owner of Soil to Turf
of Owner of Turbary Rights.] — An action for
trespass will lie for damage caused by the
cattle of the owner of the soil and freehold of a
bog to turf, cut, and spread on a plot of
such bog (not fenced or divided from the
residue) by the owner of other lands who
enjoys the right to cut and save turf on such
plot, where such cattle are depastured by the
owner of the soil upon the bog without provi-
sion by him for the prevention of such injury
by his cattle to the turf. The depasturage of
cattle by the owner of the soil of the servient
tenement, without such provision against injury
to the turf of the dominant tenant so situated
is under such circumstances a user by such
owner of the soil of his natural rights which
is unreasonable in relation to the dominant
tenant as prejudicing the value of the incor-
poreal hereditament in the nature of a profit
a prendre enjoyed by the dominant tenant, by
endangering the saving of the turf. Cronin v.
Connor, [1913] 2 Ir. R. 119— K.B. D.
Town Moor — Rights of Freemen to Herbage
— Holding of Fairs — Temperance Festival.] —
Interlocutory injunction granted at the instance
of the plaintiffs restraining the defendants
from bringing roundabouts and shows on to
the Newcastle town moor during a temperance
festival, such festival not being a " fair "
within the meaning of the Newcastle Town
Moor Acts, 1774 and 1870. Walker v. Murphy,
77 J. P. 365— Neville, J.
"Fair" — "Stint tickets" — Sale of
Stint Tickets to Inhabitants not Freemen —
Injury to Herbage — Measure of Damages.] —
The Corporation of Newcastle-upon-Tyne were
the owners in fee of the soil of the Town
Moor. By special Acts of 1774 and 1870 the
resident freemen and widows of freemen were
granted the right of depasturing two milch
cows per annum on the moor, for which
purpose they were entitled to " stint tickets ''
in April of each year. These tickets were
transferable to anv resident inhabitant. The
Act of 1774 authorised the corporation at
the request of the stewards and wardens of the
companies of the town to grant leases for the
improvement of the moor, but section 7 pro-
vided that no lease should be granted of a
part of the moor called the Cowhill where
fairs called the Cowhill Fairs were held, nor
of another part of the moor called the race-
course, but that they should be preserved for
fairs and races as before. The Act of 1870,
by section 6, authorised a committee of the
stewards and wardens to act for the freemen
and widows of freemen " for all purposes
relating to the Town Moor," and by section 8
authorised the corporation and the committee
to let parts of the moor for agricultural shows
or other public purposes. Before 1882 race
meetings with accompanying shows were held
on the racecourse. In that year they ceased
to be held on the racecourse, and instead a
temperance festival was annually held thereon,
parts of it being let to showmen by the corpora-
tion with the assent of the committee. In 1912
the committee, while assenting to the holding
of the festival for 1913 on the racecourse,
refused to agree to let any part of it to show-
men. The corporation nevertheless granted a
licence to the defendants, who were showmen,
to bring their show on to the racecourse at the
festival for that year by which the herbage was
damaged. Many of the holders of stint tickets
for the year 1912 to 1913 were transferees of
freemen. In an action by the committee
against the defendants for an injunction and
damages, — Held, upon the construction of the
Acts, that the show was not a " fair " within
section 7 of the Act of 1774, that the corpora-
tion had no power by itself to grant the licence ;
that the committee were entitled to guard the
interests of all the stint-ticket holders, whether
freemen or not ; and that the measure of
damages was the amount of injury done to the
herbage of the moor. Walker v. Murphy,
83 L. J. Ch. 917 ; [1915] 1 Ch. 71 ; 112 L. t.
189; 79 J. P. 137; 13 L. G. R. 109; 59 S. J.
88— C.A.
II. INCLOSURE.
See also Vol. III. 682, 2345.
Inclosure Act — Recitals — Manorial Right to
Mines and Minerals — Allocation of Inclosed
Lands — Allotments — Ownership of " Soil " in
Allotments — Mines and Minerals Reserved.] —
The preamble to an Inclosure Act recited that
the lords of the manor were owners of the soil
of the commons and waste within that manor
and of the mines and minerals therein. The
Act then provided that the lords of the manor
should be allotted one eighteenth part of the
inclosed lands " as a full and sufficient recom-
pense for their right to the soil of the said
commons," and, in subsequent clauses, enacted
that certain encroachments upon the land
should thereafter be held by the encroachers
" as freehold in fee simple," and that the Com-
missioners might hold certain lands and defray
the expenses of carrying out their award " by
sale of the fee simple thereof." The Com-
missioners in their award declared that all
the allotments were " of the nature or tenure
of freehold " : — Held, that the words of the
225
COMMONS.
226
preamble drew a distinction between the
ownership of the soil and the ownership of
the mines and minerals ; that the word
■' soil " was used in the Act in the restricted
sense of the surface of the soil ; that the
allottees took a fee-simple only in the surface
of the lands allotted to them, and that the
lords of the manor were entitled to the mines
and minerals underlying the allotments. St.
Catherine's College, Cambridge v. Greensmitli,
81 L. J. Ch. 555; [1912] 2 Ch. 280; 106 L. T.
1009; 56 S. J. 551— Neville, J.
Award — " Ancient inclosure " — Jurisdiction
of Valuer to Determine. ^ — Although section 49
of the Inclosure Act. 1845, provides that
nothing in the Act shall extend to enable the
valuer or the Inclosure Commissioners to
determine the title of any lands, the effect of
the exception of encroachments in that section
is to vest solely in the valuer and the commis-
sioners the decision of the question whether
a particular encroachment is or is not an
■■ ancient inclosure " within the meaning of
section 52, and whether therefore it is to be
" deemed parcel of the land subject to be
inclosed" within the meaning of section 50;
and as by section 105 every allotment speci-
fied and set forth in an inclosure award made
by the valuer and confirmed by the commis-
sioners is " binding and conclusive on all
persons whomsoever," the defence that the
allotment at the time it was dealt with by
the valuer was an " ancient inclosure " within
section 52 affords no answer to an action by
the allottee to recover possession of it. Blackett
v. Ridout. 84 L. J. K.B. 1-535; [1915] 2 K.B.
415; 113 L. T. 267— C. A.
Allotment of Land to Ecclesiastical Cor-
poration Sole — Sixty Years' Possession Partly
Before and Partly After Award — Title against
Allottee.] — Where, therefore, by an inclosure
:iward made in 1866 a piece of land was
allotted to the rector of the parish in com-
pensation for rights of turbary possessed by
him as such rector, and the land was then in
the occupation of a person who had encroached
upon it some years before, — Held, in an
action in 1913 by the rector of the parish to
recover possession of the land from the
successor of the person who had originally
encroached upon it, that the defendant, could
not set up the defence that the encroachment
in question was an " ancient inclosure " at
the date of the award ; that the plaintiff had
made out a good prima facie title by pro-
duction of the award of 1866; and that, as the
plaintiff was an ecclesiastical corporation sole,
and as the defendant and his predecessor had
not been in possession for sixty years since
the award, the plaintiffs' right to recover
possession was not barred by section 29 of the
Real Property Limitation Act, 1833. Chilcote
V. Youldon ('29 L. J. M.C. 197; 3 E. & E. 7)
and Jacomh v. Turner ([1892] 1 Q.B. 47)
discussed. 76.
III. METROPOLITAN COMMONS.
Sec nlso Vol. III. 733. 2348.
Conservators — Statutory Authority — Right
of Inhabitants to Turn out Beasts — User —
Prescription — Manorial Rights — Uninterrupted
Enjoyment.] — A fluctuating and uncertain
body, such as the inhabitants of a manor,
cannot prescribe for profits a prendre through
immemorial user. An inhabitant and rate-
payer of a parish cannot claim that he is
entitled to rights of common without stint, or
alternatively for all beasts levant and couchant,
by reason of immemorial user on the part of
the inhabitants, unless he can shew that such
rights had a legal origin. Mitcham Common
Conservators v. Banks, 10 L. G. K. 183;
76 J. P. 413— Swinfen Eady, J.
A claim to rights of common of pasture for
cattle levant and couchant on the claimant's
lands by prescription in respect of the occu-
pation of lands in the manor, can only be sub-
stantiated by shewing that there was unin-
terrupted enjoyment during thirty years, and
that the enjoyment was in respect of common-
able beasts, levant and couchant, on the lands
in respect of which the claim is made. 76.
By-laws — Regulations — Breach — Right of
Conservators to Grant Preferential Treat-
ment.]— A by-law made by the Conservators
of Mitcham Common provided that " no person
shall play at cricket or any other game . . .
except at such times and under such regula-
tions as the conservators may from time to
time prescribe." In virtue of this by-law the
conservators made a regulation that " for the
safety of the public and the preservation of
the turf no one shall play golf . . . unless
accompanied by a caddie duly authorised and
licensed by the conservators or Prince's Golf
Club." The respondents played golf on the
common without being accompanied by a
caddie : — Held, that the regulation requiring
players to be accompanied by a caddie was
valid, and that the respondents were liable to
a penalty for a breach of the by-law. Mitcham
Common Conservators v. Cox; Same v. Cole,
80 L. J. K.B. 1188; [1911] 2 K.B. 854;
104 L. T. 824; 75 J. P. 471; 9 L. G. K. 843;
27 T. L. E. 492— D.
Per Phillimore, J., and Hamilton, J. : If
the conservators of a common have not funds
to lay out a golf course, or to make, roll, and
water proper cricket pitches or bowling greens,
and clubs are willing to go to the initial and
continuous expense necessary to make and
maintain them, there may be circumstances
in which the conservators may for the sake of
all players give some preference to those who
will make and keep the playgrounds. But the
preference must be so temporary or so dis-
continuous as to leave substantial and ample
opportunities to the non-preferred and not
unduly to interfere with the non-playing
public. Further, conservators cannot by
requiring licences or permits to be taken out
create a preference indirectly w^hich could not
be justified directly. Licences or permits are
unobjectionable so far as they are part of the
machinery of legitimate regulation ; as soon
as they become mere means of discrimination
or hindrances in the way of one class from
which other classes are free they cease to be
justifiable and cannot be required. Ijawful
preferential treatment is the exception and
is a question of degree. Per Scmtton, J. :
The conservators of a common have power to
8
22-
COMMONS— COMPANY
228
grant preferential treatment to clubs who
make and maintain playgrounds on the
common. !b.
Requirement of Caddie — Refusal of
Caddie Master to Supply. j — By section 19 )f
the Metropolitan Commons (Mitcham) Supple-
mental Act, 1891, the conservators were
empowered to frame by-laws and regulations
for the preservation of order upon the com-
mons. The conservators made a by-law that
" no persons shall obstruct or interfere with
or annoy any persons who are playing or have
made preparation for playing at cricket or any
other lawful game,'" and they made regulations
for playing golf, providing that no person who
was not a member of the Prince's Golf Club
and was not playing with a member should
start playing between certain times, that no
one should play without a caddie, and that
caddies must be obtained through the caddie
master. The appellant was caddie master of
the club, and the respondent, who was not a
member, applied to him, during the time
referred to in the first regulation, for a caddie,
but the appellant refused to supply a caddie
because of the regulation : — Held, that the
appellant was not liable to be convicted under
the by-law for obstructing the respondent — per
Ridley, J., and Darling, J., on the ground
that the regulation was valid : per Rowlatt, J.,
on the ground that there was no duty on the
appellant to supply caddies to the public.
Harris v. Harrison. Ill L. T. 534; 78 J. P.
398; 12 L. G. R. 1304: 30 T. L. E. 532— D.
COMPANY.
I. Formation and Constitxttion.
1. Registration, 228.
2. Memorandum of Association, 230.
3. Articles of Association. 233.
4. Promoters, 234.
5. Prospectus, 235.
II. Capital.
1. Generally, 237.
2. Increase of, 238.
3. Picorganisation of, 239.
4. Return of, 241.
5. Reduction of, 241.
III. Directors.
1. .Appointment and Removal.
a. Appointment, 244.
b. Disqualification, 246.
2. .Authority and Powers, 248.
3. Contracts by Directors with Company.
250.
4. Liability, 251.
5. Remuneration, 254.
IV. Auditors, 255.
V. Manager, 257.
VI. Contracts by Companies, 257.
VII. Debentures and Mortgages.
1. Priorities, 260.
2. Registratioyi, 264.
3. Issue of, 267.
4. Remedies of Debenture-holders .
a. Generally, 269.
b. Eight to Eepayment, 274.
c. Eeceiver and Manager, 275.
d. Sale. 281.
5. Redemption, 281.
6. Conversion and Exchange on Sale of
Assets, 282.
VIII. Meetings of Shareholders, 283.
IX. Eeconstructiox, 287.
X. Eeturns to Eegistrar of Companies, 289.
XI. Stocks and Shares.
1. Rights of Shareholders, 290.
2. Agreemey^t to Take.
a. Underwriting Agreements, 292.
b. Payment, 293.
3. Rescission of .Agreement, 294.
4. Issue, 295.
5. Calls, 298.
6. Preference Shares, 298.
7. Certificate, 299.
8. Dividends, 300.
9. Forfeiture, 301.
10. Lien of Company, 302.
11. Surrender, 302.
12. Mortgage of Shares, 302.
XII. Proceedings Against, 303.
Xin. Winding-up by Court.
1. The Court, 304.
2. Companies which may he Wound up,
305.
3. Petition, 305.
4. Proceedings under Winding-up Order,
306.
5. Assets, 307.
6. Stay of Actions and Proceedings, 308.
7. Contributories , 308.
8. Creditors, 309.
9. Liquidator, 311.
10. Costs, 315.
XIV. Voluntary Winding-up, 317.
XV. Dissolution, 319.
I. FOEMATION AND CONSTITUTION.
1. Eegistr.^tion.
Discretion of Registrar to Register — " The
United Dental Service, Limited."] — Applica-
tion was made to the Eegistrar of Joint-Stock
Companies to register the memorandum and
articles of association of a company called
'■ The United Dental Service, Limited," which
proposed to carry on the business of practi-
tioners in dentistry. The signatories to the
memorandum and articles were all unregistered
practitioners in dentistry. The Eegistrar re-
fused to register, on the ground that the object
229
COMPANY.
230
of the company was not lawful : — Held, that
the words " United Dental Service " were not
a description implying that the persons using
it were qualified by diploma, &c., to be or
were registered under the Dentists Act, 1878,
and that, consequently, the object of the com-
pany was not unlawful. Held, further, that
the registrar had no discretion to refuse to
register on the ground that, even though not
unlawful, the title of the company was calcu-
lated to mislead the public into the belief that
the persons using the title were so qualified.
Bellerby v. Heyworth (79 L. J. Ch. 402;
[1910] A.C. 377) and Minter v. Snow (74 J. P.
257) applied. Panhaus v. Brown (68 J. P. 435)
commented on. Rex v. Registrar of Joint-
Stock Companies ; Bowen, ex parte, 84 L. J.
K.B. 229; [1914] 3 K.B. 1161; 112 L. T. 38;
30 T. L. E. 707— D.
Refusal to Register Name as being Calcu-
lated to Deceive — Discretion of Registrar,] —
The Registrar of Companies having refused to
register a company under the name of the
Water Softening Materials Company (Sofnol),
Limited, on the ground that the name so
nearly resembled that of a company already on
the register — Water Softeners, Limited — as to
be calculated to deceive, the subscribers to the
memorandum of the Water Softening Materials
Co. (Sofnol), Lim., applied for and obtained
a rule nisi for a mandamus culling upon the
Registrar to shew cause why he should not
register the companj' under that name : — Held,
that the rule should be discharged, as the
Court would not interfere by mandamus with
the Registrar's decision. Rex v. Registrar of
Companies; Paul, Ex parte, 81 L. J. K.B.
914; [1912] 3 K.B. 23; 107 L. T. 62;
19 Manson, 280; 28 T. L. R. 457— D.
Foreign Company — Obligation to File Docu-
ments with Registrar — Company Establish-
ing a " place of business " within the United
Kingdom.] — A land investment company,
incorporated and having its head office in
Canada, employed as agents in the United
Kingdom certain Scottish legal firms who
issued advertisements inviting applications for
investment in the comi3an}''s debentures to be
lodged with them, the agents, and instructing
that money invested should be paid into a
Scottish bank. The debentures were executed
in Ontario and issued to investors in this
country through the agents. Attorneys of the
company in Scotland exercised on its behalf
certain powers with regard to transfers of
debentures, confirmation, and probate. The
company did not own or pay rent for any
office, or pay salary to any official, in the
United Kingdom, the remuneration of its
representatives here being derived solely from
commissions and fees of transference : — Held,
that the company had not established a place
of business in the United Kingdom within
the meaning of section 274 of the Companies
(Consolidation) Act, 1908. Lord Advocate v.
Huron and Erie Loan and Savings Co., [1911]
S. C. 612-Ct. of Sess.
Conclusiveness of Certificate — Power to
Enter into Arrangement to Regulate Output
and Prices— Trade Union.]— Section 1 of the
Companies Act, 1900, does not make the certifi-
cate of the Registrar of Companies conclusive
that the company in respect of which he has
granted a certificate is validly registered and
is not in reality a trade union. The section
only deals with ministerial acts. The mere
fact that in its memorandum and articles of
association a company has power to enter into
an arrangement for the regulation of the output
of, and the price to be obtained for, goods —
this not being one of the main objects of the
company — does not constitute the company a
trade union, and as such incapable of registra-
tion under the Companies Act. Edinburgh
and District Aerated Water Manufacturers'
Defence Association v. Jenkinson (5 Praser,
1159) distinguished. British Association of
Glass-Bottle Manufacturers v. Nettlefold,
27 T. L. R. 527— Hamilton, J.
Restoration to Register.] — See Langlaagte
Proprietary Co., In re, post, col. 290.
2. Memorandum of Association.
See also Vol. III. 760, 2355.
Life Assurance — Policies in Relation to
Life Ultra Yires.] — A limited company, which,
by its memorandum of association was pro-
hibited from carrying on the business of life
insurance, issued policies in two different
forms. By one of these policies it undertook
in consideration of a certain weekly premium
to pay the policy-holder the respective sums
of &l., 11. 105., and 9/. at the end of five, ten,
and fifteen years respectively ; but, in the event
of his death before the end of the fifteen years,
all premiums paid since the last payment made
by the company were to be returned to his
personal representatives. By a second policy
it undertook, in consideration of a certain
premium, to pay the policy-holder a certain
sum at the termination of a certain number
of years; but, in the event of his death before
the end of the term, a certain percentage of the
premiums already actually paid was to be
returned to his personal representatives : —
Held, that policies made in either of these two
forms were policies of life assurance, and there-
fore, as such, ultra vires the company. Joseph
V. Laio Integrity Insurance Co., 82 L J Ch
187 ; [1912] 2 Ch. 581 : [1913] W.C. & I. Rep.
337; 107 L. T. 538; 20 Manson, 85— C.A.
Friendly Society— Conversion into Limited
Company — Members — Validity of Special
Resolution.] — It was decided to convert a
friendly society registered under the Friendly
Societies Act, 1896, into a limited company
under section 71 of the Act, and this was
effected in 1913 by special resolution. No
names were subscribed to the memorandum of
association, and no shares had been allotted to
any persons. In 1914 the company purported
to pass and confirm a special resolution by
which the objects clause of the memorandum
was altered and extended : — Held, that upon
the conversion of a friendly society, under
section 71 of the Friendly Societies Act, 1896,
into a limited company, the members of the
society are not simultaneously converted into
members of the company ; that at the date of
the resolution of 1914 no persons had so far
agreed to become members of the company,
and that the resolution was not effectively
231
COMPANY.
232
passed. Blackburn Pliilanthropic Assurance
Co., In re, 84 L. J. Ch. 145 : [1914] 2 Ch. 430;
21 Manson, 342; 58 S. J. 798— Eve, J.
Conversion of Unlimited Company into
Limited Company.] — A company registered
as an unlimited company, passed a special
resolution resolving that the company should
be registered as a limited company, and
approving of a memorandum of association
altering its existing constitution. The memo-
randum was headed " Company Limited by
Shares " ; it set forth the name of the company
as concluding with the word " Limited "; and
it expressly provided that " The liability of
the shareholder is limited." In a petition for
confirmation of this memorandum, — Held, that
the petition was premature in respect that the
company must be re-registered as a limited
company under section 57 of the Companies
(Consolidation) Act, 1908, before the Court
could confirm a memorandum embodying the
limitation of liability. Royal Exchange Build-
ings, Glasgow, In re, [1911] S. C. 1337— Ct.
of Sess.
Alteration of — Sanction of Court — Power to
Purchase other Undertakings — Power of
Amalgamation — Power of Sale.] — The Court
under section 9 of the Companies (Consolida-
tion) Act, 1908, may in its discretion sanction
very wide alterations of the objects of a com-
pany, including a power to purchase other
undertakings, a power of amalgamation with
other concerns, and a power of sale of the
whole of the company's undertaking. New
Westminster Brewery Co., In re, 105 L. T.
946; 56 S. J. 141— Joyce, J.
A limited company, which by its memo-
randum of association had power to amal-
gamate with any other company carrying on
business within the objects of the company,
presented a petition for confirmation of a
special resolution by which it was proposed
to alter its memorandum by adding certain
powers, including a power to carry out such an
amalgamation by sale of the undertaking of
the company. The Court granted the prayer
of the petition. Macfarlane, Strang <£• Co.,
In re, [1915] S. C. 196— Ct. of Sess.
Power to Acquire Similar Businesses.] —
A limited company presented a petition for
confirmation of a special resolution by which it
was proposed to alter its memorandum of
association by adding powers to acquire similar
businesses ; to sell the undertaking of the com-
pany; or to amalgamate with any other firm,
person, or company. The Court, while con-
firming the power to acquire similar businesses,
refused to confirm the other alterations on the
ground that they were not within the altera-
tions which a company was authorised to make
by section 9, sub-section 1 of the Companies
(Consolidation) Act, 1908. Walker d Sons,
Lim., In re, [1914] S. C. 280— Ct. of Sess.
Power to Sell Branch Business to
another Company for Debentures or Shares —
Power to Pay for Debentures or Shares.] —
Among the objects of a company as defined
by its memorandum of association were the
selling of all or any part of its property in
such manner and on such terms and for such
purposes as the company should think proper ;
the making and carrying into effect of arrange-
ments with respect to the union of interests or
amalgamation, in whole or in part, with any
other company having objects similar to those
of the company ; and the doing of all such other
things as were incidental or conducive to the
attainment of the company's objects : — Held,
that these provisions empowered the company
to sell a branch business to a new company
formed for the purpose of purchasing it and
the business of another company of the same
character, in consideration of debentures or
shares of the new company ; and also to apply
its assets in order to provide working capital
for the new company, and for that purpose to
pay for debentures or shares. Thomas d Co.,
In re; The Company v. Sully, 84 L. J. Ch.
232; [1915] 1 Ch. 325; 112 L. T. 408—
Warrington, J.
Extension of Principal Objects — Addition
of Objects Incidental to Principal Objects —
Company Desiring at Future Time to Carry on
New Business — Principles upon which Court
will Sanction Alterations in Memorandum —
Advertisement of New Objects.] — J. B. & Co.,
Lim., carried on an extensive business in ship-
building and the manufacture of armaments,
and the T. Co., Lim., carried on an extensive
colliery business. Both companies desired to
extend greatly the objects of the company as
stated in their respective memorandums, and
presented petitions under section 9 of the Com-
panies (Consolidation) Act, 1908, for the
approval by the Court of certain proposed
alterations in the memorandum : — Held, that
if a company is considering the present
expansion of its principal business by the
adoption of other businesses, the Court will
consider the desirability of altering its memo-
randum, but the Court will not meet the pos-
sibility of the company some day or other
desiring to carry on another principal business,
because the company can always come again
to the Court when they have a reasonable
intention of so doing. Held also, that, as
regards subsidiary businesses, every facility
would be given, but that it must not be within
the discretion of the directors to treat subsi-
diary objects as principal objects. Brown
d Co., In re; Tredegar Iron and Coal Co.,
In re, 84 L. J. Ch. 245; 112 L. T. 232;
59 S. J. 146— Neville, J.
Proposed alterations in memorandum sanc-
tioned when reduced in number and simplified,
and with a clause inserted to the effect that
none of the additional objects should be under-
taken except as subsidiary objects unless by
sanction of a special resolution of the company.
Power to Lease Undertaking.] — The
Court under section 9 of the Companies (Con-
solidation) Act, 1908, may in its discretion
sanction alterations of the objects of a com-
pany, including a power to lease the whole
undertaking of the company. Anglo-American
Telegraph Co., In re, 105 L. T. 947; 56 S. J.
141 — Joyce, J.
233
COMPANY.
234
Statement of Objects of Company.] — In
a petition for confirmation of a memorandum
embodying alterations in the constitution of
an unlimited company which was about to
become a company limited by shares, — Held,
that the proposed memorandum must state
the objects of the company ad longum, and
not by a mere reference to the document which
set forth the original constitution of the com-
pany. Royal Exchange Buildings, Glasgow,
In re, [1911] S. C. 1337— Ct. of Sess.
3. Articles of Association.
See also Vol. III. 786, 2363.
Power in Articles to Sell Member's Shares
— Fixed Price — Less than Market Yalue —
Injunction.] — ■ The defendant company's
articles empowered the company to determine
that the shares of any member should be
offered for sale to the other members at not
less than Is. a share. The plaintiff was a
director and shareholder, and in August, 1914,
the company resolved, in spite of the plaintiff's
protest, to increase the price of certain articles
to the Admiralty and the hospitals. The
resolution was afterwards modified, but the
plaintiff resigned his membership, and was
removed from the directorate, and the com-
pany resolved to sell at Is. a share the plain-
tiff's 11. shares, although their market value
was IZ. each : — Held, that the plaintiff was
entitled to an injunction to restrain the defen-
dant company from acting in pursuance of the
resolution. Phillips v. Manufacturers' Secu-
rities, Lim., 31 T. L. R. 451— Eve, J.
Arbitration Clause — Action by Member —
Application to Stay — Contract between Com-
pany and Members — Submission to Arbitra-
tion.]— The plaintiff, in 1905, signed a form
of application for membership to the defendant
company by which lie agreed to conform to
the rules and regulations of the association,
and was informed by a letter from the secretary
that he had been elected a member. Article 49
of the articles of association provided that
differences between the association and any of
the members relating to any of the affairs of
the asociation should be referred to the deci-
sion of an arbitrator. In 1914 the plaintiff
issued a writ against the association and its
secretary, claiming injunctions and declara-
tions in respect of matters which related solely
to the affairs of the association, and seeking
to enforce his rights under the articles of
association of the defendant company. The
defendants issued a summons to have the
proceedings in the action stayed, pursuant to
section 4 of the Arbitration Act, 1889, and
to refer the matters in dispute to arbitration
in accordance with the terms of article 49 : —
Held, that general articles dealing with the
rights of members as such should be treated
as a statutory agreement between the mem-
bers and the company, as well as between
themselves inter se, and article 49 constituted
a submission to arbitration within the mean-
ing of the Arbitration Act, 1889; and that
being so, there was a prima facie duty on the
Court to act upon such an agreement, and
therefore the proceedings in the action must
be stayed pursuant to section 4 of that Act.
Hickman v. Kent or Romney Marsh Sheep-
Breeders' Association, 84 L. J. Ch. 688;
[1915] 1 Ch. 881; 113 L. T. 159; 59 S. J. 478
— Astbury, J.
Tavarone Mining Co., In re; Pritchard's
Case (42 L. J. Ch. 768; L. R. 8 Ch. 956),
Melhado v. Porto Alegre and New Hamburg
and Brazilian Railway (43 L. J. C.P. 253;
L. R. 9 C.P. 503), Eley v. Positive Govern-
ment Security Life Assurance Co. (45 L. J.
Ex. 451; 1 Ex. D. 88), and Browne v. La
Trinidad (57 L. J. Ch. 292; 37 Ch. D. li
distinguished. lb.
In construing section 14, sub-section 1 of
the Companies (Consolidation) Act, 1908, the
company should be treated as a party to its
own articles, and the covenants by the mem-
bers as covenants with the company ; and if
a submission is in writing, and is binding on
both parties as their agreement or as the
equivalent in law to an agreement between
them, sections 4 and 27 of the Arbitration
Act, 1889, are satisfied. Baker v. Yorkshire
Fire and Life Assurance Co. (61 L. J. Q.B.
838; [1892] 1 Q.B. 144) applied. lb.
Held, further, that the application form for
membership, signed by the plaintiff and
accepted by the company, constituted a con-
tract between the plaintiff and the company,
and was a submission in writing within the
meaning of the Arbitration Act, 1889. lb.
Altering so as to Commit Breach of Con-
tract.]— A company cannot alter its articles
so as to commit a breach of contract ; and
therefore if a contract between the company
and another party involves as one of its terms
that a particular article is not to be altered,
the company is not at liberty to alter that
article, and will be restrained by injunction
from doing so. Allen v. Gold Reefs of West
Africa (69 L. J. Ch. 266; [1900] 1 Ch. 6-56)
followed. British Murac Syndicate v. Alperton
Rubber Co., 84 L. J. Ch. 665; [1915] 2 Ch.
186; 113 L. T. 373; 59 S. J. 494; 31 T. L. R.
391— Sargant, J.
Punt V. Symons d Co. (72 L. J. Ch. 768;
[1903] 2 Ch. 506) was overruled by the Court
of Appeal in Baily v. British Equitable
Assurance Co. (73 L. J. Ch. 240: [1904]
1 Ch. 374) ; and the reversal of the latter
decision bv the House of Lords (75 L. J.
Ch. 73; [i906] A.C. 35) was not due to any
dissent from the principle enunciated by the
Court of Appeal, which indeed was recognised
by the House of Lords. lb.
4. Promoters.
See also Vol. III. 791, 2366.
Purchase by Promoter to Re-seli to Com-
pany— Sale by Promoters of " benefit of lease "
to Company — Promoters having no Binding
Agreement for Lease — Promoters not Trustees
of Lease for Company.] — On January 10,
1912, tile defendants commenced negotiations
for the acquisition of a lease of certain pre-
mises with a view to selling them to a
company which they intended to promote. By
January 31, 1912, the main terms of the lease
had been arranged, but the settling of plans,
235
COMPANY.
236
Ac, delayed completion, so that the lease was
not granted to the defendants until May 13,
1912. At no time prior to this date was there
any enforceable agreement for the grant of
the lease to the defendants. On March 28,
1912, the company, which had been incor-
porated on March 25, 1912, by a board of
directors who were not independent, affirmed
a contract whereby the defendants agreed to
sell to the company " the benefit of the lease
agreed to be granted " to them with the
benefit of certain plans and arrangements,
and to pay the preliminary expenses of the
formation of the company in consideration of
1,500L in cash and shares. The memorandum
and articles of the company stated that the
company was to enter into this contract. The
company paid the consideration, took posses-
sion of the premises, and had the lease
assigned to them on June 4, 1912. The com-
pany claimed that the defendants were liable
as promoters to make good to the company
such part of the consideration as was attri-
butable to " the benefit of the lease agreed to
be granted " to them, on the ground that
at the date of the contract the defendants had
no beneficial interest in the lease and had
subsequently acquired it as trustees for the
company : — Held, that the defendants had
not obtained the lease as trustees for the com-
pany and had made no secret profit, and that,
the company having obtained what it bar-
gained for, the action failed. Omnium
Electric Palaces, Lim. v. Baines, 83 L. J.
Ch. 372: [1914] 1 Ch. 332; 109 L. T. 964;
21 Manson, 94 ; 58 S. J. 218 ; 30 T. L. E. 213
— C.A.
Decision of Sargant, J. (82 L. J. Ch. 519),
afi&rmed. lb.
5. Prospectus.
See also Vol. III. 807, 2370.
Untrue Statements — Directors' Liability —
" Reasonable ground " for Believing State-
ments to be True — Uncorroborated Statements
of Vendor and Promoter^ — The uncor-
roborated statements of a vendor-promoter of
a company afford by themselves no " reason-
able ground " to the directors for believing
such statements in a prospectus issued by
them to be true, so as to relieve the directors
from liability to persons subscribing for shares
on the faith of the prospectus for the loss or
damage sustained by reason of such state-
ments if untrue, .idams v. Thrift. 84 L. J.
Ch. 729; [1915] 2 Ch. 21; 113 L. T. 569—
C.A.
What may be " reasonable ground " for
believing an untrue statement in a prospectus
within the meaning of section 84 of the Com-
panies (Consolidation) Act, 1908, considered.
lb.
Misrepresentation — Non-disclosure — Re-
pudiation of Shares — Motion to Rectify
Register — Laches and Acquiescence — Explana-
tion of Delay.'— In Fel.niary, 1910, the
applicant was allotted shares in a company.
In the middle of May, or at latest by the
end of July, the applicant became fully aware
of misrepresentations in the prospectus. In
December he moved to have his name removed
from the register : — Held, that the unex-
plained delay of five months precluded him
from obtaining relief. Christineville Rubber
Estates, hi re, 81 L. J. Ch. 63; 106 L. T.
260; 19 Manson, 78; 56 S. J. 53; 28 T. L. R.
38— Eve, J.
When a shareholder comes to the Court to
be relieved of his shares on the ground of
misrepresentation arising from non-disclosure,
it is not enough for him to say that had he
known the fact he would not have applied
for shares ; he must be prepared to put his
finger on the statements which he relies upon
as contradictor^.- of or inconsistent with the
facts not disclosed. Brookes v. Hansen
(75 L. J. Ch. 450; [1906] 2 Ch. 129) followed.
lb.
Agreement to Take Shares — Rectification
of Register — Fraud.] — Any person who
authorises another to act for him in the
making of any contract undertakes that the
authority so given should not be executed
fraudulently, as much as if he had made the
contract himself. Therefore, where a share-
holder was induced to take shares in a com-
pany on the faith of a report made by one of
the directors to the company, and published by
them in a prospectus, which was not true in
fact, and was alleged to have been made
fraudulently, he was held entitled to bring an
action to have his name removed from the list
of shareholders on the ground of fraud, every
director being the agent of the company to
make the representations contained in the
prospectus. Mair v. Rio Grande Rubber
Estates, 83 L. J. P.C. 35; [1913] A.C. 853;
20 Manson, 342 ; 57 S. J. 728 ; 29 T. L. R. 692
— H.L. (Sc.)
Statements Founded on Report of Ex-
pert— Share Contract — Removal from List of
Contributories.] — The prospectus of a rubber
and produce company contained — First,
extracts from an expert's report as to the
nature of the company's property; secondly,
statements by directors purporting to be based
on the report ; and thirdly, estimates of profits
by the directors based upon the report. The
prospectus was in many respects inaccurate,
and was as a whole calculated to mislead : —
Held, that the case was not within the excep-
tion laid down by Turner, L.J., and Cairns,
L.J., in their judgments in Reese River Silver
Mining Co., In re: Smith, ex parte (36 L. J.
Ch. 618, 620, 622; L. R. 2 Ch. 604, 611, 615),
and affirmed in British Burma Lead Co., In
re; Vickers, ex parte (56 L. T. 815); for the
directors had asked for subscriptions on the
faith of their own statements, had given credit
to the report, and had represented as facts
what was stated therein : — Held, conse-
quently, that the holder of partly paid shares
in the company who had subscribed for them
in reliance on the prospectus was entitled to
have his name removed from the list of con-
tributories in the winding-up of the company.
Pacaya Rubber and Produce Co.. In re : Burns'
Case, 83 L. J. Ch. 432; [1914] 1 Ch. 542;
110 L. T. 578; 21 Manson, 186; 58 S. J. 269;
30 T. L. R. 260— Astbury, J.
Bentley <f Co. v. Black (9 T. L. E. 580)
distinguished. Metropolitan Coal Consumers'
231
COMPANY.
238
Association, In re; Karberg's Case (61 L. J.
Ch. 741; [189'2] 3 Ch. 1), Lynde v. Anglo-
Italian Hemp-Spinning Co. (65 L. J. Ch. 96;
[1896] 1 Ch. 1781. and Mair v. Rio Grande
Rubber Estates, Lim. (83 L. J. P.C. 35;
[1913] A.C. 853). followed. 75.
Repudiation of Contract to Take shares —
Rescission.] — Contract h\ the plaintiff to take
shares in the defendant company rescinded on
his application on the ground of serious mis-
statements in the prospectus, upon the faith
of the accuracy of which he had agreed to take
the shares. Taylor v. Oil and Ozokerite Co.,
29 T. L. R. 515— Joyce, J.
Second or Subsequent Prospectus — Omission
to Refer to Previous Offer of Shares — Remedy
for Non-compliance with Statute — Rescis-
sion.]— Eescission is not a remedy available
to a person who has applied for and obtained
shares in a company upon the footing of a
prospectus which failed to comply with the
requirements, in the case of a second or sub-
sequent offer of shares, of clause (d) of sec-
tion 81, sub-section 1 of the Companies (Con-
solidation) Act, 1908. The applicant's remedy
(if any) is an action for damages against the
directors or other persons responsible for the
prospectus. Wimbledon Ohjmpia, Lim., In re
(79 L. J. Ch. 481; [1910] 1 Ch. 630), followed.
South of England Natural Gas and Petroleum
Co., In re, 80 L. J. Ch. 358; [1911] 1 Ch.
573; 104 L. T. 378; 18 Manson, 241; 55 S. J.
442 — Swinfen Eady, J.
Statement in Lieu of Prospectus — Inac-
curate Statement of Required Particulars —
Issue of Shares not Yoid.] — Where a com-
pany which does not issue a prospectus on its
formation files with the Registrar of Com-
panies a statement in lieu of prospectus as
required by section 82, sub-section 1 of the
Companies (Consolidation) Act, 1908, in the
form set out in the Second Schedule to the Act,
and which in form is reasonably complete,
the subsequent issue of shares and debentures
of the company will not be void, notwithstand-
ing that the particulars contained in the state-
ment are in fact inaccurate and incomplete,
unless the statement is so insufficient as to be
illusory and amount to no statement at all.
Blair Open Hearth Furnace Co.. In re,
83 L. J. Ch. 313; [1914] 1 Ch. 390; 109 L. T.
839; 21 Manson, 49— C. A.
Decision of Warrington, J. (109 L. T. 149),
affirmed. lb.
II. CAPITAL.
1. Generally.
See also Vol. III. 869, 2378.
" Paid-up share Capital."] — The promoters
of the X. Railway Co. oljtained an Act which
incorporated the Companies Clauses Consolida-
tion (Scotland) Act, 1845, the Companies
Clauses Act, 1863, and Acts amending the
same. A schedule to the Act contained an
agreement between the company and tlie N. B.
Co.. whereby the latter company guaranteed
a fixed dividend upon " the paid-up share
I capital " of the N. Co. The N. Co., having
failed to obtain sufficient subscriptions to their
sliares, entered into an agreement with a
syndicate whereby the company undertook to
issue to the syndicate their whole unissued
capital, and the syndicate undertook to con-
struct the railway. It was established by
proof that the cost of construction was about
60 per cent, of the face value of the capital
issued to the syndicate, and that the syndicate
disposed of the shares so issued at less than
par : — Held (diss, the Lord President, Lord
Kinnear, and Lord Dundas), that the capital
so issued to the syndicate was not "' paid-up
share capital " of the N. Co. in the sense of
the agreement with the N. B. Co., and that
the N. B. Co. were only bound to contribute
to the dividend on so much of the capital of
the N. Co. as was issued in consideration of
cash or the equivalent of cash. Held, further
(diss. Lord Johnston), that it was competent
for the Railway and Canal Commissioners,
sitting as arbiters, to determine what amount
of the capital was issued in consideration of
cash or the equivalent of cash. Neicburgh
and North Fife Railway v. North British
Railivay. [1913] S. C. 1166— Ct. of Sess.
Semble (per Lord Johnston, Lord Salvesen,
and Lord Skerrington), a company incor-
porated under the Companies Clauses Acts is
not entitled to issue its original shares at a
discount. Whether such a company is entitled
to issue shares for a consideration other than
cash or the equivalent of cash, qucere. lb.
Statharn v. Brighton Marine Palace and Pier
Co. (68 L. J. Ch". 172 ; [1899] 1 Ch. 199) and
Webb V. Shropshire Railways (63 L. J. Ch.
80; [1893] 3 Ch. 307) doubted. lb.
Sale Contract — New Issue — Refusal of
Sanction of Treasury — Contract for Sale at
an End — Motion by Purchaser.] — Where a
(contract between two companies shewed that
it was to be performed in a short time, and
provided for sale, so much to be paid in cash
on or before April 15, 1915, " or at a date not
being later than one calendar month after
the sanction of the Treasury has been obtained
to the issue " of certain capital, and there
had been an unconditional refusal by the
Treasury to sanction the new issue : — Held,
that the purchasing company were not entitled
to have their contract performed. East Indies
Commercial Co. v. Nila)nbur Rubber Estates,
59 S. J. 613 ; 31 T. L. R. 500— Sargant, J.
2. Increase of.
See also Vol. III. 872, 2379.
Power to Increase Given to Directors —
Power to Issue to Company in General
Meeting.] — Held, on the construction of the
articles of association of the appellant com-
pany, that, although the directors had power
by their own resolution alone to create new
shares, such new shares could not be issued
without a resolution of the company in general
meeting. Koffyfontein Mines, Lim. v.
Mosely. 80 L. J. Ch. 668; [1911] A.C. 409;
105 L. T. 115; 18 Manson, 365; 55 S. J. 551;
27 T. L. R. 501— H.L. (E.)
239
COMPANY.
240
Table A — Additional Capital Authorised by
Provisional Order — No Special Resolution for
Increase — Right of Holders to Share in Dis-
tribution of Surplus Assets.] — Where the
articles provided that the capital of a certain
gas and water company might be increased by
special resolution, and Provisional Orders
were made under the Gas and Waterworks
Facilities Act, 1870, purporting to effect such
increase of capital : — Held, that the issue of
such additional capital was valid, and that
the holders thereof were entitled to be treated
as members in the distribution of the surplus
assets, although no special resolution had in
fact been passed authorising such issue. New
Tredegar Gas and Water Co., In re. 59 S. J.
161— Neville. .J.
3. Ee-okg.\nisation of.
Petition — Advertisement.] — It is not neces-
sary to advertise a petition for re-organisation
of share capital. Ashanti Development, Lim.,
In re, 27 T. L. R. 498— Eve, J.
Resolution for Effecting Modification of
Memorandum.] — Section 45, sub-section 1 of
the Companies (Con.solidation) Act, 1908, pro-
vides that " a company limited by shares may,
by special resolution confirmed by an order
of the Court, modify the conditions contained
in its memorandum so as to reorganise its
share capital, whether by the consolidation of
shares of different classes or by the division
of its shares into shares of different classes :
" Provided that no preference or special privi-
lege attached to or belonging to any class of
shares shall be interfered with except by a
resolution passed by a majority in number of
shareholders of that class holding three-fourths
of the share capital of that class, and confirmed
at a meeting of shareholders of that class in
the same manner as a special resolution of
the company' is required to be confirmed, and
every resolution so passed shall bind all share-
holders of the class " : — Held, that to comply
with the above proviso a majority of three-
fourths in value of the shareholders of the
particular class must be present or repre-
sented when the resolution is passed ; that the
resolution must be passed at a meeting ; and
that voting by proxy is allowable when voting
by proxy at general meetings is allowed by the
articles of association. Foucar & Co., In re,
29 T. L. R. 350— Sargant, J.
Partly Paid Shares — Subdivision — Division
of Unissued Preference Shares.] — In a re-
organisation of share capital, in accordance
with the provisions of section 45 of the Com-
panies (Consolidation) Act, 1908, a company
may divide each of its 1?. preference shares,
on which 15.s. is paid, into two different
shares of 10.5., called respectively the A prefer-
ence shares and the B preference shares, and
may treat the A preference shares as being
fully paid and the B preference shares as being
5.S. paid and 5s. uncalled. Vine and General
Rubber Trust, In re, 108 L. T. 709; 57 S. J.
010— Neville, J.
Scheme of Arrangement — Alteration of
Memorandum — Interference with Preferential
Rights.] — The Companies (Consolidation)
Act, 1908, s. 45, gives power inferentially to
modify preferential rights created by the
memorandum of association, so that a prefer-
ence given to any class of shareholders by the
memorandum cannot be interfered with except
upon the conditions laid down in that section.
Section 120 does not give express authority
to alter capital or interfere with preferential
rights, and compliance with its conditions in
such cases is insufficient. Palace Hotel, Lim.,
In re (81 L. J. Ch. 695; [1912] 2 Ch. 438),
not followed. Doecham Gloves, Lim., In re,
82 L. J. Ch. 165; [1913] 1 Ch. 226; 107 L. T.
817; 20 Manson, 79— Neville, J.
Interference with Privileges Attached to a
Class of Shares.] — By a company's memoran-
dum of association the ordinary shares were
limited to 300,0OOL, with certain preferences
and privileges attached thereto by the articles,
and the memorandum of association forbade
any increase of capital which would prejudice
such preferential rights. It was proposed by
a scheme of arrangement between the com-
pany and its ordinary shareholders to issue
100,000 new ordinary shares to the existing
ordinary shareholders, such shares to have
similar rights and priorities to those of the
ordinary shares of the initial capital and to
rank pari passu therewith : — Held, that the
new issue of shares would in no way prejudice
the preferential rights of the existing ordinary
shareholders, and therefore that the proposals
in the scheme were consistent with the memo-
randum of association; and held, that the
scheme could in any case be sanctioned under
section 120 of the Companies (Consolidation)
Act, 1908, without compliance with the re-
quirements of section 45, which only applied
when it was desired to modify the conditions
of the memorandum so as to reorganise the
share capital, either (a) by the consolidation
of shares of different classes, or (b) by the
division of shares into shares of different
classes. Palace Hotel, Lim., In re (81 L. J.
Ch. 695; [1912] 2 Ch. 438), followed. Doe-
cham Gloves, Lim., In re (82 L. J. Ch. 165;
[1913] 1 Ch. 226), overruled. Schtveppes,
Lim., In re, 83 L. J. Ch. 296; [1914] 1 Ch.
322; 110 L. T. 246; 21 Manson, 82; 58 S. J.
185 ; 30 T. L. R. 201— C.A.
Decision of Astbury, J. (58 S. J. 139;
30 T. L. R. 96), reversed. 76.
Meetings of Shareholders.] — A company,
whose capital was divided by its memorandum
into ordinary and preference shares, proposed
to convert certain unissued preference shares
into ordinary shares, and to attach to the
preference shares a right to participate pari
passu with the ordinary shareholders in the
surplus profits. A resolution to that effect
was passed and confirmed at a general meet-
ing, and also at meetings of the preference
shareholders, but there were no separate meet-
ings of the ordinary shareholders. The Court
confirmed the special resolution, holding that
it was unnecessary that there should have
been separate meetings of the ordinary share-
holders. Stewart Precision Carburettor Co.,
In re, 56 S. J. 413; 28 T. L. R. 335— Eve, J.
241
COMPANY.
242
4. Return ov.
Accumulated Profits — Prosperous Company
—Resolution for Return on Fully Paid Shares
only.] — The issued capital of a limited com-
pany consisted of 40,000 preference and (50,000
ordinary shares, all of ol. each. The former
and 6,047 of the latter were fully paid, but
only 11. per share was paid on the remainder.
The company had paid 10 per cent, dividends
on its ordinary shares, and had accumulated
a large reserve out of undivided profits ; and
a special resolution was passed and confirmed
to return thereout 4/. per share on the 6,047
shares. Two of the holders of those shares
having moved to restrain the company from
acting on the resolution : — Held, that the pro-
posed return was authorised by section 40
of the Companies (Consolidation) Act, 1908.
Neale v. Birmingham Tramways Co., 79 L. J.
Ch. 683; [1910] 2 Ch. 464; 103 L. T. 59;
18 Manson, 100 ; 54 S. J. 651 ; 26 T. L. R. 588
— Swinfen Eady, J.
5. Reduction of.
See also Vol. III. 876, 2380.
Scheme — Payment off of Part of Class of
Shares — Payment by Debentures. 1 — A scheme !
for reduction of capital which involves the pay- ^
iiient off of some only and not all of one class j
of shares, and imposes on the shareholders j
whose shares are to be extinguished the !
obligation to accept debenture stock in lieu of
cash, may, if equitable, be a scheme for the !
reduction of a company's share capital within
section 46 of the Companies (Consolidation)
Act, 1908, which may be confirmed by the
Court. Nixon's Navigation Co., In re,
(66 L. J. Ch. 406; [1897] 1 Ch. 872), followed.
De la Rue <f Co., In re, 81 L. J. Ch. 59;
[1911] 2 Ch. 361; 105 L. T. 542; 19 Manson,
71 ; 55 S. J. 715— Eve, J.
Costs of Dissentient Shareholder.] — It
may be made a term of confirmation of the
scheme that the company should pay the costs
of a dissentient shareholder who has assisted
the Court by his criticism. Ih.
Debentures to Bearer — Extraordinary
Resolution — Trust Deed — Power to Modify
Rights in General Meeting — Consent of
Creditors — Sanction of Court.] — A scheme for
reduction of capital provided for the transfer
of the undertaking from the old company to a
new, and (inter alia) that the holders of bearer
debentures in the old company should give up
half their holding and accept debentures of
the new company in satisfaction. The scheme
was duly approved, and the usual advertise-
ments published as to creditors. The deben-
ture trust deed provided that the holders in
general meeting should have power to modify
their rights against the company, and that a
resolution passed by a three-fourths majority
at a meeting duly summoned should bind all
the debenture-holders. A resolution with the
requisite majority was accordingly passed
approving the scheme. The names of the
holders, however, were not included in the list
of creditors settled under section 49, sub-
section 2 of the Companies (Consolidation)
Acts, 1908, and some of the holders were not
known. The debenture-holders had surren-
dered half their holding in accordance with
the scheme and the new debentures had been
issued : — Held, that the resolutions passed at
the debenture-holders' meeting, and the sur-
render of their holding in accordance with the
scheme, were together sufficient evidence of
consent within the meaning of the Companies
(Consolidation) Act, 1908, s. 50, and of rule 17
of the General Order (Reduction of Capital),
1909. Hydraulic Potcer and Smelting Co.,
In re, 83 L. J. Ch. 753: [1914] 2 Ch. 187;
111 L. T. 451; 21 Manson, 288— Astbury, J.
Objecting Creditor — Security for Creditor's
Debt — Debt Due for Future Rent — Whether
Debt Contingent.] — A company occupying
premises under a lease of which four years had
still to run presented a petition for confirma-
tion of a resolution to reduce its capital. The
landlords of the premises objected to the reduc-
tion of capital unless provision was made to
secure the payment of their rent during the
remainder of the lease. The company offered
to appropriate in security a sum less than the
full amount of the rents to become due, and
maintained that, the landlords' debt being
contingent, the Court should approve of the
offer as sufficient : — Held, that, as the com-
pany admitted the full amount of the debt,
and as that amount was neither contingent nor
unascertained, the case fell under section 49,
sub-section 3 (i) of the Companies (Con-
solidation) Act, 1908, and the company was
bound to provide security for the full amount
of the debt ; and on the company stating that
they were not prepared to do so, the Court
dismissed the petition. Palace Billiard
Rooms, Lim. v. City Property Investment
Trust Corporation, [1912] S. C. 5— Ct. of Sess.
Capital Consisting of Stock only.] — "When
the capital of a company consists only of stock,
a reduction of the capital of the company
can be effected by cancelling a part of the
stock. House Property and Investment Co.,
In re, 106 L. T. 949; 56 S. J. 505— Neville, J.
Minute — Shares Paid up in Different
Amounts — Numerous Groups of Shares.] —
The minute for reduction of capital, drawn up
in accordance with section 51 of the Companies
(Consolidation) Act, 1908, must contain,
among other particulars, the denoting num-
bers of the shares referred to in it, but the
notice of the registration of such minute need
not contain such denoting numbers ; but may
be in such shortened form as the Court may
direct. Oceana Development Co., In re,
56 S. J. 537— Swinfen Eady, J.
Minute — Number of Forfeited Shares.]— A
company had power under its articles to re-
issue forfeited shares as paid up to the amount
which had been paid or as wholly unpaid.
The company resolved to reduce its capital by
writing off lost capital, including five shares
on each of which 2s. 6(/. had been paid, but
which had been forfeited for non-payment of
calls : — Held, that the numbers of these five
shares must be set out in the minute confirm-
243
COMPANY.
244
ing the reduction of capital. Oceana Develop-
ment Co.. In re (56 S. J. 537), followed. Wolf
d Son, Lim., In re, 57 S. J. 146— Neville, J.
Preference and Ordinary Shares — Altera-
tion of Preferential Rights Defined by
Memorandum.] — Where a company, acting
under the provisions of section 120 of the Com-
panies (Consolidation) Act, 1908, reduces its
capital by a compromise between different
classes of shareholders, whereby each class of
share is written down in value and the divi-
dend due to the preference shareholders is
reduced, such compromise is not a consolidation
of shares of different classes, or division of
shares into shares of different classes, within
the meaning of section 45 of the same Act, and
the formalities required by the latter section
need not be observed. Palace Hotel, Lim.,
In re, 81 L. J. Ch. 695; [1912] 2 Ch. 438;
107 L. T. 521 ; 19 Manson, 295 ; 56 S. J. 649—
Swinfen Eady, J.
Section 45 of the Companies (Consolidation)
Act, 1908, is not an enabling section, but a
section limiting the general power to make
arrangements under section 120 of that Act.
Its application is confined to the two cases
mentioned in the section — namely, where it is
proposed to alter the memorandum of associa-
tion eitlier (a) by the consolidation of shares
of different classes, or (b) by the division of
shares into shares of different classes. In
other cases where a scheme of arrangement
interferes with rights conferred by the
memorandum compliance with section 120 of
the Act is sufficient. Palace Hotel, Lim.,
In re (81 L. J. Ch. 695; [1912] 2 Ch. 438),
and dictum of Cozens-Hardy, M.R., in
Schweppes, Lim.. In re (83 L. J. Ch. 296,
301; [1914] 1 Ch. 322, 330), followed, tiord-
berg, Lim., In re, 84 L. J. Ch. 830; [1915]
2 Ch. 439; 59 S. J. 717— Neville, J.
Discretion of Court to Enquire into Reasons
of Reduction.] — The Court confirmed a reso-
lution for reduction of the capital of a company
which proceeded on the statement that capital
had been lost, although from the report of an
accountant, to whom the Court had remitted
the matter, it appeared that no capital had in
fact been lost. Caldwell d Co. v. Caldicell,
[1915] S. C. 527— Ct. of Sess.
Per Lord Skerrington : Although under the
Companies (Consolidation) Act, 1908, the Court
has an absolute discretion to confirm or refuse
to confirm a reduction of capital, yet the
question whether capital has been lost is
regarded by tlie statute as one which is to be
disposed of by the company. There may
possibly be cases where it would be the duty
of the Court to enter into an enquiry on the
subject, but thev would be very exceptional.
lb.
Shares Forfeited after Part Payment —
Power to Treat as Unissued.l — It was pro-
vided by one of the articles of association of
a company that every share which should be
forfeited should thereupon become the property
of the company, and the directors might sell,
re-allot, or otherwise dispose of the same upon
such terms and in such manner as they sliould
think fit. On a petition for reduction of
capital, — Held, that the forfeited shares could
be treated as unissued and with nothing paid
thereon, although the sum of 821. 7s. 6d. had
in fact been paid in respect of them. The
principle of Oceayia Development Co., In re
(56 S. J. 537), applied. Victoria (Malay)
Rubber Estates, In re, 58 S. J. 706—
Astbury, J.
Assent of Shareholders — Jurisdiction of
Court.] — Circumstances in which the Court
has jurisdiction to sanction a scheme for the
reduction of the capital of a company with
the assent of the majority of the shareholders.
ShoweU's Breicery Co., In re, 30 T. L. R. 428
— Astbury, J.
Dispensing with Words " and reduced " —
Company Carrying on Business Abroad.] —
It is not the general practice to allow the use
of the words " and reduced " to be dispensed
with in the case of companies carrying on
business abroad. Lindner i(- Co., [1911]
W. N. 66— Joyce, J.
Common Seal.] — On a petition to confirm
a reduction of the capital of a company, the
Court dispensed with the use of the words
and reduced " on the common seal of the
company. Knowles <{• Sons, Lim., In re,
57 S. J. 212— Neville, J.
Failure to Insert Words " and reduced."]
— Petition for confirmation of reduction of
capital refused in respect of the omission, on
and from the presentation of the petition, to
add the words " and reduced " as part of the
name of the company, in accordance with
section 48 of the Companies (Consolidation)
Act, 1908. Clark d. Co., In re, [1911] S. G.
243— Ct. of Sess.
III. DIRECTOES.
1. Appointment and Removal.
a. Appointment.
See also Vol. III. 893, 2390.
Agreement that Particular Body may
Nominate Directors — Specific Performance —
Contract of Service — Injunction.] — An agree-
ment that a shareholder, so long as he con-
tinues to hold shares, shall have the right of
appointing or nominating a director of the
company is not unenforceable specifically as a
contract of service, but is capable of being
enforced by injunction ; though the Court will
not by injunction force the company to accept
on its board persons who are unfit or
thoroughly unacceptable as directors. Bain-
bridge V. Smith (41 Ch. D. 462) distinguished.
British Murac Syndicate v. Alpertoji Rubber
Co., 84 L. J. Ch. 665; [1915] 2 Ch. 186;
113 L. T. 373; 59 S. J. 494; 31 T. L. R. 391
— Sargant, J.
Whether Appointment by Board or at
Meeting of Company.] — Tlie articles of
association of a company provided that " the
directors may from time to time appoint addi-
tional directors, but so that the total number
245
COMPANY.
246
of directors shall not exceed the prescribed
maximum " : — Held, that the company had
delegated to the board of directors the power
of appointing additional directors, and there-
fore that the purported appointment by the
company at an extraordinary general meeting
of the defendants as additional directors was
invalid. Blair Open Hearth Furnace Co.
V. Reigart. 108 L. T. 665; 57 S. J. 500:
29 T. L. R. 449— Eve. J.
Named First Directors — Provision for
"Continuing" Directors to Act — Acts by
Less than Minimum Number of Directors —
Validity.^ — The articles of association of a
company provided that the number of directors
should not be less than four; that two named
persons should be the first directors ; that these
two named directors should have power to
appoint further directors; and that "con-
tinuing " directors should be empowered to
act, notwithstanding any vacancy in their
body, provided that they constituted a certain
fixed quorum : — Held, that all these provisions
must be read together ; but that the provision
that the directors should not be less than
four was imperative; that the two named first
directors were accordingly not capable of acting
by themselves (except to appoint the necessary
two additional directors) ; and that these two
named first directors, and a third whom they
had appointed, were not " continuing " direc-
tors within the meaning of the articles, so as
to be capable, in the absence of the appoint-
ment of a fourth director, of acting on behalf
of the company. Sly. Spink d- Co., In re;
Hertslets Case; Macdonald's Case, 81 L. J.
Ch. 55; [1911] 2 Ch. 430; 105 L. T. 364;
19 Manson. 65 — Neville. J.
Occasional Vacancy — Less than Prescribed
Number of Directors Remaining — Power of
Election by Sole Remaining Director — Allot-
ment of Shares — Irregularity." — A light rail-
way company was incorporated by an Order
which was confirmed by the Board of Trade
nnder the Light Railways Act, 1896. The
Order incorporated the Companies Clauses
Consolidation Act, 1845. and provided that the
number of directors should be five, but that
it might be varied so as not to be less than
three, and that there should be a share quali-
fication of directors, and that the quorum of a
meeting of the directors should be three, but
that if the number of directors was reduced
to three the quorum should be two. Three
persons were named in the Order as the first
directors, together with two other persons to
be nominated by them. These latter were
never nominated, but the number of the direc-
tors was properly reduced to three, and the
three named dii-octors were continued in office.
Two of them subsequently ceased to be direc-
tors. The sole remaining director thereupon
purported to appoint two other persons to be
directors who had not the necessary quali-
fication as shareholders at the time of their
appointment. At the same meeting or sub-
sequently on the same day the necessary quali-
fication shares were duly allotted to the newly
appointed directors, all the parties honestly
believing that it was sufficient that, if con-
temporaneously with, although in point of time
immediately after, the appointment the quali-
fying shares were obtained : — Held, that,
having regard to the interpretation clause,
section 3 of the Companies Clauses Consolida-
tion Act, 1845, which provides that " words
importing the plural number only shall include
the singular nuuiber," the only remaining
director could exercise the powers conferred on
" the remaining directors " by section 89 of
the Act, and could validly elect new directors
to fill up the vacancy caused by the retirement
of his two colleagues; but that, as he could
only appoint persons who had the requisite
qualification as shareholders at the time of
their appointment, the subsequent obtaining
of the qualification shares did not validate
the purported appointment of the two new
directors. Held, however, that, as all the
parties in the transaction were acting in good
faith, their acts as directors or de facto
directors were protected by section 99 of the
Act, and that therefore, notwithstanding the
subsequent discovery of the defect in the
appointment of the new directors, the allot-
ment of the shares to them was valid. Channell
Collieries Trust v. St. Margaret's, Dover, and
Martin Mill Light Railway, 84 L. J. Ch. 28;
[1914] 2 Ch. 506 ; 111 L. T. 1051; 21 Manson,
328 ; 30 T. L. R. 647— C.A.
Decision of Sargant, J. (83 L. J. Ch. 417;
[1914] 1 Ch. 568), affirmed. Ih.
Dawson v. African Consolidated Land and
Trading Co. (67' L. J. Ch. 47; [1898] 1 Ch. 6)
and British Asbestos Co. v. Boyd (73 L. J.
Ch. 31; [1903] 2 Ch. 439) applied. Stafford-
shire Gas and Coke Co., In re; Nicholson,
ex parte (66 L. T. 413), overruled. lb.
b. Disqualification.
See also Vol. III. 914, 2392.
Vacating Office — "If concerned in or
participates in profits of any contract with
company."] — By the articles of association of
a company it was provided that the office of
director should be vacated in certain events,
one of which was : " If he is concerned in or
participates in the profits of any contract with
the company " : — Held, that under this pro-
vision a director vacated his office if he was
concerned in any contract with the company,
although he might not have participated in
any profits therefrom ; and further, that the
provision was not confined to cases where the
director was personally concerned in contracts
with the companv. Star Steam LauJidry Co.
V. Dukas, 108 L. T. 367; 57 S. J. 390;
29 T. L. R. 269— Farwell. L.J.
Acceptance of any other Office in Company
— Solicitor of Company Appointed Director.]
— The articles of association of a company
provided that the directors wore to be not more
than five or less than three in number, and
that a director should ipso facto vacate his
office if he accepted or held any other office of
the company except that of managing director
or manager. A resolution having been passed
that a firm of solicitors, two of whom were
directors of the company, should be solicitors
to the company : — Held, that the resolution to
appoint two of the directors to act as solicitors
to the company did not disqualify those direc-
247
COMPANY
248
tors, and therefore that a debenture issued to
the plaintiff by the directors was not void as
being issued without authority. Harper's
Ticket Issuing and Recording Machine, In re,
57 S. J. 78; 29 T. L. R. 63— Eve, J.
If Holder becomes Bankrupt, Lunatic,
or "Insolvent."] — By one of the articles of
association of the defendant company it was
provided that " the office of a director shall
ipso facto be vacated if he become bankrupt,
lunatic, or insolvent. ..." In June, 1910,
the plaintiff, who was at that time a director
of the defendant company, was financially
involved. He had three principal creditors to
whom he owed considerable sums, and he
wrote to them asking them to accept a com-
position, holding out as an inducement to them
to do so the statement that his other creditors
had agreed to accept a composition of about
one-seventh of their claims. The claims of
these three creditors were settled in August,
1910, upon the terms suggested : — Held, that
the plaintiff had in June, 1910, become insol-
vent within the meaning of the article of
association, and therefore that he had ceased
to be a director of the defendant company.
James v. Rockicood Colliery Co., 106 Li. T.
128; 56 S. J. 292; 28 T. L. R. 215— D.
Insolvency — Notorious and Avowed In-
solvency.]— By the articles of association of
the defendant company, which was incor-
porated in February, 1912, the office of a
director was to be vacated if he (inter alia)
became bankrupt or insolvent or compounded
with his creditors or became of unsound mind.
C. was one of the first directors, and was
appointed chairman, and was entitled to a
salary at the rate of 1501. a year as director
and chairman. C. assigned to the plaintiffs
his salary as director and chairman for the
quarter ending February 1, 1913. The
plaintiffs having sued as assignees of the debt,
the defendants alleged that C. had become
insolvent before the beginning of the quarter,
and had thereby ceased to be a director. It
was proved that between 1908 and 1912
seventeen bankruptcy petitions were presented
against C. in the London Bankruptcy Court,
and between 1909 and 1913 twelve bankruptcy
petitions were presented against him in the
County Court, all of which were dismissed by
consent, though C. paid nothing in respect of
any of them. C. was called as a witness, and
admitted that in the summer of 1912 he did
not meet his liabilities immediately as and
when they became due, but he said that he
never instructed his solicitor to settle with his
creditors, nor did he ever have a meeting of
his creditors. He was cross-examined on a
letter written by his solicitor to a creditor in
December, 1912, stating that C.'s affairs were
very embarrassed, and that it was intended
to ask his creditors to give him time, and also
on an affidavit made by himself in the same
month stating that he intended to make an
offer to his creditors. The Judge of the City
of London Court found that C. was in fact and
within the meaning of the articles of associa-
tion insolvent during the whole of 1912 and
the early part of 1913, and he gave judgment
for the defendants : — Held, that, assuming
the word " insolvent " in the articles of
association to refer to such a notorious or
avowed insolvency as was spoken of in Reg.
V. Saddlers' Co. (32 L. J. Q.B. 337; 10 H.L.
C. 404), there was evidence on which the
Judge of the City of London Court could find
that C. was at the relevant time insolvent
within the meaning of the articles of associa-
tion. London and Counties Assets Co. v.
Brighton Grand Concert Hall and Picture
Palace (84 L. J. K.B. 991 ; [1915] 2 K.B. 493 ;
112 L. T. 380; [1915] H. B. R. 83— C.A.
2. Authority and Powers.
See also Vol. III. 917, 2394.
Appointment of Managing Director.] — The
directors of a company were empowered by the
99th article of association to appoint a manag-
ing director, and by the 113th article to carry
on the management of the business of the
company, subject to such regulations as might
be prescribed by the company in general meet-
ing. The directors appointed one of their
number as managing director, contrary to the
wishes of a majority of the shareholders, who
at a general meeting carried a resolution that
another should be appointed : — Held, that the
appointment of a managing director was vested
in the directors, and was outside the provisions
of article 113. Logan v. Davis, 104 L. T.
914; 55 S. J. 498— Warrington, J. Appeal
dismissed, 105 L. T. 419— C.A.
Power to Revoke Appointment — Appoint-
ment without Reservation of Power to Revoke
— Ultra Vires — Dismissal of Managing Direc-
tor.]— By the articles of association of the
defendant company the directors might
appoint one or more of their number to be
managing director or managing directors on
such terms as to remuneration and for such
period as they might deem fit, and might
revoke such appointment. In 1908 the direc-
tors entered into an agreement with the
plaintiff by which they appointed him a
managing director of the company. The
agreement provided that the plaintiff should
hold the office so long as he should remain
a director of the company and retain his due
qualification and should efficiently perform the
duties of the said office. The plaintiff was to
have the right of resigning his office at any
time on giving six calendar months' notice in
writing, but no corresponding right was given
to the company. In 1912 the directors revoked
the appointment of the plaintiff as managing
director, notwithstanding that he was still
director of the company and retained his due
qualification and had efficiently performed the
duties of his office. The plaintiff claimed
damages from the company for breach of the
agreement and for wrongful dismissal : — Held,
that the plaintiff was entitled to recover ; for
the directors were not empowered by the
articles of association to revoke the appoint-
ment at will or otherwise than in accordance
with the terms of the agreement. Nelson v.
Nelson £ Sons, Lim., 83 L. J. K.B. 823;
[1914] 2 K.B. 770; 110 L. T. 888; 30 T. L. R.
368— C.A.
Judgment of Scrutton, J. (82 L. J. K.B.
827; [1913] 2 K.B. 471), affirmed. Ih.
249
COMPANY
250
Board Meeting — Converting Casual Meet-
ing of Directors into Board Meeting.] — If
directors of a company are willing to hold a
meeting of the board they may hold one under
any circumstances ; but a casual meeting of
the two directors, even at the company's office,
cannot be converted into a board meeting if
one of them denies that it is a board meeting,
and has not received a notice sent by the
other as chairman of the board calling a board
meeting. Barron v. Potter; Potter v. Berry
{No. 1), 83 L. J. Ch. 646: [1914] 1 Ch. 895;
110 L. T. 929; '21 Manson, 26U ; 58 S. J. 516;
30 T. L. R. 401— Warrington, J.
Directors Unable or Unwilling to Exercise
Powers — Deadlock — Right of Company to
Exercise Powers.] — Although in cases where
there is a board of directors ready and willing
to act a limited company cannot, except by an
alteration of the articles of association, over-
ride powers conferred on the directors by the
articles, the company can itself exercise those
powers if a deadlock exists owing to the fact
that the directors are unable or unwilling to
exercise them, and are for practical purposes
a non-existing body. Observations of Cotton,
L.J., and Fry, L.J., in Isle of Wight
Railwaij v. Tahourdin (53 L. J. Ch. 353;
25 Ch. D. 320) applied. lb.
Contract with Another Company in which
Director Holds Shares — Shares Held as
Trustee — Conflict of Duties and Interests —
Notice — Rescission.] — Where a director of a
company is a shareholder in another company,
whether beneficially or as a trustee, he is
precluded, without regard to the quantum of
his holding, from dealing on behalf of the
company of which he is a director with the
other company, unless and so far as he is
authorised so to do by the articles. If the
other company has notice of the irregularity,
a contract so entered into may be rescinded
if rescission be possible. Transvaal Lands Co.
V. Neio Belgium (Transvaal) Land and Deve-
lopment Co.. 84 L. J. Ch. 94; [1914] -2 Ch.
488; 112 L. T. 965 ; 21 Manson, 364 ; 59 S. J.
27; 31 T. L. R. 1— C.A.
Preventing Director from Performance of
Duties — Interlocutory Injunction.] — Circum-
stances in which the Court will grant an inter-
locutory injunction restraining interference
with the director of a limited company in the
performance of his duties as such director.
Grirmoade v. B.P.S. Syndicate, 31 T. L. R.
531— Eve, J.
Management — Balance Sheet Containing
Under-valuation of Assets — Creation of Secret
Reserve Fund — Ultra Vires.] — A shareholder
in a limited company brought an action against
the company and the directors for a declara-
tion that the defenders were not entitled to
issue balance sheets in which the stock on
hand was entered at less than its true value
with the object and result of concealing that
profits had been earned in excess of those
shewn in the balance sheets ; and for interdict
against the issuing of such balance sheets.
The pursuer did not charge the directors with
fraud, and he admitted that the balance sheets
had been passed by the auditors and approved
by general meetings of the company, but he
averred that the actings complained of were
ultra vires : — Held, that the action must be
dismissed on the ground that the valuation of
the stock was a matter within the discretion
of the directors subject to the approval of
the shareholders, and that there was no
relevant averment that the company or the
directors had acted ultra vires. Newton v.
Birmingham Small Arms Co. (75 L. J. Ch.
627 ; [1906] 2 Ch. 378) distinguished. Young
V. Brownlee A Co., [1911] S. C. 677— Ct. of
Sess.
Per Lord Kinnear : The purpose of the
balance sheet is primarily to shew that the
financial position of the company is at least
as good as there stated, not to say that it is
not, or may not be, better. lb.
Semble (per Lord Dundas) : It is not illegal
for directors to make a low valuation of stock
or other assets, in order to create a reserve
in view of future and contingent liabilities. lb.
3. Contracts by Directors with Company.
See also Vol. III. 937, 2401.
Contract of Service for Term — Fixed
Salary — Negative Covenant Restraining
Trading — Breach — Interdependent Obliga-
tions— Winding-up Order — Specific Perform-
ance— Injunction.] — A director of a company
in July, 1903, entered into a contract of
service with the company. By clause 1 he
became bound and entitled to hold office as
director for seven years at a fixed salary, and
by clause 5 he covenanted that he would not
at any time thereafter, while he should hold
the office of director or within seven years
after ceasing to hold such office, either solely
or jointly wath, or as manager or agent for,
any other person or persons or company,
directly or indirectly carry on the businesses
of engineers or ironfounders that would com-
pete with or be detrimental to the business
carried on by the company. In April, 1909, a
receiver and manager was appointed in a
debenture-holders' action against the com-
pany, and in November, 1909, a compulsory
winding-up order was made. The receiver
gave notice to the director that the company
no longer required his services. The director
thereupon set up business as an engineer and
ironfounder close to the company's premises,
and sent out circulars asking for orders from
the customers of the company. Prior to the
winding-up he had had copies made of the
lists of such customers for his own purposes,
and he had made use of them in issuing the
circulars. The receiver in the name of the
company brought an action against him for
an injunction to restrain him from carrying
on business in breach of clause 5 of the con-
tract and for an order for the delivery up by
him of all copies of lists of customers in his
possession or under his control : — Joyce, J.,
held that the obtaining of the lists of custoraere
by the defendant for his own private purposes
was a gross breach of his duty towards the
plaintiff company, and he made the order
asked for by them. Held, also, by Joyce, J.,
and the Court of Appeal (Buckley, L.J., dis-
251
COMPANY.
252
senting), that the contract on the part of the
plaintiff company had been broken by the
winding-up order ; that they were not entitled
against the defendant to specific performance
of clause 5 without performing clause 1 in his
favour, which they could not do; and that
consequently the restrictive covenant was not
binding upon him, and the plaintiff company
could not obtain against him the equitable
relief by injunction which they claimed.
Principle of General Bill-posting Co. v.
Atkinson (78 L. J. Ch. 77; [1909] A.C. 118)
applied. Measures Brothers, Lim. v. Measures,
79 L. J. Ch. 707; [1910] 2 Ch. 248; 102 L. T.
794; 18 Manson, 40; 54 S. J. 521; 26 T. L. R.
488— C. A.
Buckley, L.J., was of opinion that clauses 1
and 5 were not interdependent contracts ; that
the performance of clause 1 was not a condition
precedent to the continuance of the restriction
in clause 5 ; and that therefore in thg events
which had happened that clause remained
binding upon the defendant, and the plaintiff
company were entitled to an injunction. lb.
4. Liability.
See also Vol. III. 946, 2402.
Fiduciary Position — Land Company —
Property Held to Manage and Realise for
Client — Costs of Keeping Accounts — Directors
Employed as Solicitor, Auctioneer, &c.] — A
limited company agreed with the plaintiff to
manage, develop, and realise the plaintiff's
property, on terms under which the company
was to become entitled to one-third of the
ultimate profit. In the course of such manage-
ment the company paid a special salary to
their secretary for keeping the books of account
of the property. The company also (as the
articles of association allowed), first, employed
a firm of solicitors, of which one of the direc-
tors was a member, to act professionally in
connection with the property, and paid their
bills of costs, including profit items; secondly,
employed another director, who was an estate
agent, to manage at a salary the working of
some sand and gravel pits; and thirdly,
employed another director, who was an
auctioneer, to conduct the sales of the pro-
perty at usual commission. In an action for
account brought by the plaintiff impeaching
these disbursements, — Held, that on the true
construction of the agreement the company
were bound to keep the accounts at their own
expense as part of the consideration moving
from the company, and that the secretary's
salary must be accoi-dingly disallowed. Held
also (dissentiente Fletcher Moulton, L.J.),
that if the employment and remuneration were
in other respects proper, the payments made
by the company to the three directors ought
not to be disallowed on the mere ground that
the company employed their own directors,
who stood in no fiduciary relation to the
plaintiff and were entitled to be paid remunera-
tion for these services as between themselves
and the company. Bath v. Standard Land
Co., 80 L. J. Ch. 426; [1911] 1 Ch. 618;
104 L. T. 867; 18 Manson, 258; 55 S. J. 482;
27 T. L. R. 393— C. A.
Kavanagh v. Workingman's Benefit Build-
ing Society ([1896] 1 Ir. E. 56) disapproved
by Cozens-Hardy, M.E., and Buckley, L.J.,
but approved by Fletcher Moulton, L.J. lb.
Purchase of Shares — Amalgamation —
Rights of Shareholders.] — The appellants,
the directors of a company, represented to the
respondents, who were shareholders in the
company, that it was necessary for the direc-
tors to secure the consent of the majority of
the shareholders in order to effect an amal-
gamation with another company and induced
the respondents to give them options to
purchase their shares. The appellants exer-
cised these options, and the amalgamation took
place and the appellants made a profit : —
Held, that the appellants were trustees of this
profit for the benefit of the respondents.
Allen V. Hyatt, 30 T. L. R. 444— B.C.
Personal Liability — Breach of Trust — Sums
Paid to Company for Specified Purpose
Applied to Another Purpose.] — A limited
compaii}', which consisted of two shareholders
only who were also its sole directors, received
from their foreign correspondents a sum of
IjOOOL for the purpose, expressed in a covering
letter, of meeting three named bills drawn by
them upon the company which were shortly
to become due. The company did not meet
the bills at maturity, but the 1,000Z. was
applied, to the extent of 600L, in repaying to
one of the directors outlays averred to have
been incurred by him on behalf of the company.
In an action by the foreign correspondents
against the two directors personally, to which
the company were not called as defenders, —
Held, that the dii'ectors' actings constituted
not merely breach of contract, but breach of
trust, for which they were personally liable,
and decree pronounced against them, jointly
and severally, for pavment of the 600Z. claimed.
Brenes d- Co. v. Downie, [1914] S. C. 97—
Ct. of Sess.
Observations {per Lord .Johnston) on the
difference in the matter of responsibility
between directors of merely nominal com-
panies consisting of two members and directors
of ordinary companies consisting of a large
number of members. lb.
Action against Director and Company —
Contract made by Director for Work to be
done by the Company — Retention of Money
Received — Agreement with Co-directors not
to Account — Internal Management.] — The
managing director of a limited company
carrj'ing on a laundry business entered into
contracts for laundry work in his own name,
on behalf of the company, with a customer.
The work was done by the company, and the
director received the amounts due under the
contracts, and paid over a portion to the com-
pany', but did not account for the amounts
received by him. This was in consequence of
an alleged arrangement with his co-directors
that he was not to account for profits. The
company declined to call upon the director
for an account, whereupon two shareholders
brought an action against the company and
the director, claiming that the director was a
trustee for the company of all moneys received
under the contracts, and asking for an account.
253
COMPANY.
254
The company pleaded that the complaiut was
conversant with a matter of internal manage-
ment, over which the Court had no juris-
diction. The defence of the director was that
if there was any cause of complaint against
him, which he did not admit, it was only
enforceable at the suit of the company : —
Held, that the transaction was illegal and
ultra vires, and that the action was main-
tainable and the plaintiffs entitled to the relief
sought. Cockburn v. Newbridge Sanitary
Steam Latmdry Co., [1915] 1 Ir. K. 237— C.A.
Penalty — Failure to Hold General Meeting
During Year — Failure to Forward to Regis-
trar List of Members — Default of Directors.]
— The direction in section 26. sub-section 1
of the Companies (Consolidation) Act, 1908,
to every company to make out and forward
to the Registrar of Companies " a list of all
persons who, on the fourteenth day after the
first or only ordinary general meeting in the
year, are members of the company," and also
a summary as to the capital and shares of the
company, is mandatory; and the obligation to
forward the list every year is independent of
whether or not the ordinary general meeting
of the company is held in the year. There-
fore, where the directors of a company are
summoned under section 26, sub-section 5 of
the Act of 1908, for knowingly and wilfully
permitting default to be made by the com-
pany in complying with the requirements of
section 26, it is no defence for them to set
up that the holding of the ordinary general
meeting of the company is a condition pre-
cedent to the obligation to send in the list
arising, and that as the meeting had not been
held the list of members could not be sent
in, when they were themselves parties to the
meeting not being held. Park v. Lawton,
80 L. J. K.B. 396; [1911] 1 K.B. 588;
104 L. T. 184: 75 J. P. 163; 18 Manson, 151;
27 T. L. R. 192— D.
Misfeasance — Qualification Shares — Shares
Received to Hold in Trust for Promoter —
Blank Transfers. ^ — Articles of association of
a company provided that the qualification of
a director should be '" the holding of at least
100 shares in the company." Some of the
directors accepted their qualifying shares from
the promoter of the company on the terms
that they should hold them in trust for him
and should execute (as they in fact did) blank
transfers so that he might deal with the shares
as he might require : — Held, that they were
guilty of misfeasance, and that each must
contribute to the assets of the company (which
had gone into liquidation) a sum equal to the
par value of his shares, shares having been
allotted to other parties at par. London and
South-Western Canal Co., In re, 80 L. J.
Ch. 234; [1911] 1 Ch. 346; 104 L. T. 95;
18 Manson, 171 — Swinfen Eady, J.
Breach of Trust — Liability for Negligence
— Independent Enquiries — Adopting an Agree-
ment to Carry out which the Company was
Formed — Discretion.] — When a company is
formed to carry out a particular contract, a
director who has a discretion given to him by
the articles is bound to exercise his discretion
before adopting the contract. Brazilian Rubber
Plantations and Estates, In re (No. 1),
80 L. J. Ch. 221; [1911] 1 Ch. 425; 103 L. T.
697; 18 Manson, 177; 27 T. L. R. 109—
Neville, J.
In estimating whether directors have given
a proper price for property, a great distinction
may be drawn between a cash price and a
price to be paid in shares, for in the latter
case the value of the consideration paid to
the vendors depends upon the success of the
company. lb.
A director is not bound to bring any special
qualifications to his office. He may undertake
the management of a rubber company in com-
plete ignorance of everything connected with
rubber, without incurring responsibility for
the mistakes which may result from such
ignorance. He is not bound to take any
definite part in the conduct of the company's
business, but so far as he does undertake it he
must use reasonable care in its dispatch. lb.
Where a prospectus discloses all the facts,
which are proved to have been before the
directors, and the directors accept a position
on the basis of which, with notice of the facts,
all its shareholders join the company, there
is a difficulty in saying that the position was
one which no reasonable man would accept. 76.
Articles of Association — " Directors not
to be liable for loss, unless occasioned by
own dishonesty,"] — An article of association
provided that : " No director shall be liable
. . . for any loss, damage, or misfortune
whatever, which shall happen in the execution
of the duties of his office or in relation thereto,
unless the same happens through his own
dishonesty": — Held, that an action by the
company against its directors for negligence,
where no dishonesty was alleged, could not,
in view of the article, have succeeded. lb.
Liability of Director by Summary Pro-
cedure.]— The misfeasance section (215) of
the Companies (Consolidation) Act, 1908,
creates no new right, and only provides, as
did section 165 of the Companies Act, 1862.
a summary procedure for enforcing against
directors or other officers of a company liability
for breach of trust or other misconduct which,
prior to the Act, might have been enforced by
action ; and to bring a case within the section
it is essential to shew that pecuniary loss
resulted to the company from the acts or
defaults constituting the alleged misfeasance.
Canadian Land Reclaiming and Colonizing
Co.; Coventry and Dixon's Case (14 Ch. D.
660, 668), followed; Cavendish Bentinck v.
Fenn (57 L. J. Ch. 552; 12 App. Cas. 652)
applied. Irish Provident Assurance Co., In re,
[1913] 1 Ir. R. 352— C.A.
5. Remtjneration.
See also Vol. III. 1000, 2408.
Winding-up — Provision for Retirement of
Directors at Ordinary General Meeting —
Failure to Hold such Meeting — Proof for
Fees.] — \\'h('rc a company sold all ifs under-
taking and assets in consideration of receiving
255
COMPANY.
256
shares in another company, and charged the
shares so received as security for certain money
advanced : — Held, that, although after the
sale the duties of the directors were diminished,
they did not altogether cease, and that the
directors were entitled to continue to receive
the remuneration fixed by the articles of
association. Consolidated Nickel Mines, Lim.,
In re, 83 L. J. Ch. 760; [1914] 1 Ch. 883;
111 L. T. 243; 21 Manson, 273; 58 S. J.
556; 30 T. L. R. 447— Sargant, J.
Articles of association of a company provided
that general meetings should be held once in
every year, and that at the ordinary general
meeting in 1906 all the directors should retire
from office. Section 49 of the Companies Act,
1862 (which was at the time in force), also
provided that a general meeting should be held
once at the least in every year. No general
meeting of the company was held or called in
the years 1906 and 1907, but the directors of
the company continued to act as such : —
Held, that the directors vacated office on
December 31, 1906, that being the last day on
which a meeting of the company for that year
could have been held, and that they were not
entitled to remuneration from thence onward
until they were duly re-elected. lb.
IV. AUDITORS.
See also Vol. III. 1010. 2414.
Conclusiveness of Certificate.] — Where a
certificate of auditors is based on a wrong
principle it is not conclusive and binding on
the parties. Johnston v. Chestergate Hat
Manufacturing Co., 84 L. J. Ch. 914; [1915]
2 Ch. 338; 59 S. J. 692— Sargant, J.
Alleged Negligence — Right of Access to
Company's Books by Auditors — Refusal of
Directors to Allow Access — Action by Auditors
— Application by Auditors for Interim Injunc-
tion against Directors.] — Where the directors
of a registered company allege that a loss
sustained by the company might have been
avoided but for negligence on the part of the
auditors of the company, and refuse to allow
the auditors to see any of the company's books,
and the auditors bring an action against the
company and the directors claiming access to
the books, the Court will not on an inter-
locutory application in the action by the
auditors make an order requiring the defen-
dants to give the auditors access to the books,
at all events before a general meeting of the
company has been held at which the share-
holders have had an opportunity of stating
whether or not they desire that the auditors
should continue to act as such. Ciijf v. London
and County Land and Building Co., 81 L. J.
Ch. 426; [1912] 1 Ch. 440; 106 L. T. 285;
19 Manson, 166; 28 T. L. R. 218— C. A.
Examination of Books — Extent of Obliga-
tion.!— An auditor who is appointed to
investigate the condition of a business is bound
to make a reasonable and proper investigation
of the accounts and stock sheets, and if, as a
rensonably prudent man, he ought to conclude
on that investigation that something is wrong,
it is his duty to call his employer's attention
to the fact. In making his investigation he is
entitled to rely on documents vouched by ser-
vants of the business, unless he has reason for
believing those servants to be dishonest.
Squire Cash Chemist, Lim., or Mead v. Ball,
27 T. L. R. 269— Lord Alverstone, C.J. See
s.c. in C.A., infra.
An action was brought by the plaintiff
against the defendants claiming to recover
damages in respect of their alleged negligence
in the performance of their duties as account-
ants in the examination of the accounts of a
business in which he was then proposing to
invest money, and in which he subsequently
did so invest : — Held, that the plaintiff had
failed to shew that the alleged negligence of
the defendants had induced him to invest his
money in the business, and had thus caused
the loss that he had sustained. Squire Cash
Chemist, Lim.. v. Ball, Baker d- Co.. 106 L. T.
197 ; 28 T. L. R. 81— C.A.
Per Cozens-Hardy, M.R. : Although it is
not the duty of accountants to take stock in
auditing the accounts of a business, they may
well call for explanations of particular items
in the stock sheets. lb.
Balance Sheet — Responsibility — Commis-
sion for Obtaining Subscriptions — Un-
authorised Payment — Solicitor-Director —
Profit Costs.] — Auditors of a company are
bound to make themselves acquainted with
their duties under the Companies Acts and
under the articles of the company whose
accounts they are auditing. If the balance
sheet which they have audited does not shew
the true financial condition of the company
and the company thereby suffers damage, the
onus is upon the auditors of shewing that such
damage is not the result of any breach of duty
on their part. Republic of Bolivia Exploration
Syndicate, Lim., In re (No. 2), 83 L. J. Ch.
235; [1914] 1 Ch. 139; 110 L. T. 141;
21 Manson, 67; 58 S. J. 321; 30 T. L. R. 146
— Astbury, J.
Semble, adequate warning or identification
in the audited accounts as to wrongful pay-
ments appearing in the accounts, bringing
such wrongful payments to the notice of the
company, will free the auditors from further
liability. 7b.
A company was incorporated in March,
1907, and V. was appointed the solicitor to
the company. One of the objects of the
company, mentioned in the memorandum of
association, was to pay commissions for pro-
curing the subscription of its shares, but
Table A applied to the company, which con-
tains no power to pay commission as required
by section 89 of the Companies (Consolidation)
Act, 1908; and no power was given to the
directors to contract with the company. In
June, 1907, V. was appointed a director. In
November, 1907, auditors of the company were
appointed. Payments between March and
December, 1907, were made by the company
to V. as agreed costs for incorporation, of
which 150?. represented profit costs. At a
meeting of the directors on March 16, 1908,
it was resolved that a commission of 10 per
cent, should be paid to X. for introducing sub-
scribers, and 338L was subsequently so paid
by the company. Between December, 1907,
257
COMPANY.
258
and September, 1911, further sums were paid
by the company to V. for costs, of which 50L
represented profit costs. The first balance
sheet was produced at a general meeting, and
contained the item of 338/. paid by way of
commission. The auditors had passed this
balance sheet with the usual note at the foot
stating that the balance sheet represented a
true and correct view of the company's
accounts. The balance sheet was, after dis-
cussion, passed by the shareholders. A
subsequent balance sheet containing further
sums paid to Y. for costs, and approved by the
auditors, was passed by the shareholders. In
the winding-up of the company the liquidator
claimed to recover the sums of 150Z., 338L, and
50/. from the auditors : — Held, as to the sum
of 338/. paid for commission, that the auditors
had not failed in their duty, especially as the
balance sheet clearly stated for what purpose
the sum had been paid and the shareholders
approved the balance sheet after discussion ;
and as to the sums representing profit costs
paid to v., that in the special circumstances
the auditors had not failed in their duty in this
case either. 76.
Semble, as to the sums paid for commission
and profit costs, since it did not appear that,
if their attention had been called to the
illegality of those payments, the shareholders
would have taken proceedings against the
directors to recover them, therefore no damage
had resulted to the company. lb.
Auditor's Report — Publication.] — See
Copyright.
V. MANAGEE.
See also Vol. III. 1009, 2413.
Remuneration — Commission — Percentage on
Annual "Net" Profits — Deduction of Income
Tax.] — Income tax is part of the " net
profits available for dividend, and where a
manager was to have a percentage of " the net
profits (if any) of the company for the whole
year" and "net " profits were defined in the
agreement to mean " the net sum available for
dividends as certified by the auditors of the
company after payment of all salaries, rent,
interest at the rate of 5 per cent, per annum
upon capital, and after making such allow-
ances for depreciation as the auditors of
the company may advise," — Held, that the
manager was entitled to be paid his percentage
on the net profits before deduction of the tax.
The principle of Ashton Gas Co. v. Att.-Gen.
(75 L. J. Ch. 1; [1906] A.C. 10) applied.
Johnston v. Chestergate Hat Manufacturing
Co., 84 L. J. Ch. 914; [1915] 2 Ch. 338;
59 S. J. 692— Sargant, J.
VI. CONTRACTS BY COMPANIES.
See also Vol. III. 1011, 2414.
Agreement of Service — Cumulatiye Salary
—Payment only out of " Profits (if any)
arising from the business " — Debentures in
another Company — Value not Estimated in
Balance Sheet — Realisation by Liquidator —
Proceeds — Undrawn Profits.]— Two persons
entered into an agreement of service with a
company as its technical advisers at a fixed
salary, which they were not to be entitled to-
draw " except only out of profits (if any)-
arising from the business of the company
which ma}' from time to time be available for
such purpose, but such salary shall neverthe-
less be cumulative, and accordingly any arrears-
thereof shall be payable out of any succeeding
profits available as aforesaid." The agree-
ment was to determine ipso facto on the
winding-up of the company. The business of
the company included the buying and selling
of debentures, and in the course of such busi-
ness it acquired debentures in another com-
pany, which were included in the yearly
balance sheets, but their value was not therein
estimated. The company was wound up
voluntarily and the liquidator realised all its
assets, including the debentures. There was
no goodwill and no fixed capital. All the
creditors, other than the two technical ad-
visers, whose salary was in arrear, were paid
in full, and after repayment to the share-
holders of their subscribed capital there
remained a surplus in the hands of the
liquidator : — Held, that the debentures were
profits arising from the business of the com-
pany, that the entire proceeds realised by the
liquidator ought to be treated as undrawn
profits arising from such business, and that
consequently the surplus in his hands was
available for the payment of the arrears of
salary. Bridgeicater Navigation Co., In re
(60 L. J. Ch. 415; [1891] 2 Ch. 317), applied.
Frames v. Bultfontein Mining Co. (60 L. J.
Ch. 99; [1891] 1 Ch. 140) and Rishton v.
Grissell (L. E. 5 Eq. 326) explained. Spanish
Prospecting Co., In re, 80 L. J. Ch. 210;
[1911] 1 Ch. 92; 103 L. T. 609; 18 Manson,
191; 55 S. J. 63; 27 T. L. E. 76— C.A.
The meaning of " profits " discussed by
Fletcher Moulton, L.J. lb.
Bill of Exchange — Acceptance on Behalf
of Limited Company — Name of Company
Repressed in Address of Bill — " Lid." for
" Limited."] — It is a sufficient compliance
with the requirements of section 63 of the
Companies (Consolidation) Act, 1908, that in a
bill of exchange addressed to a limited com-
pany the company's name is correctly stated
in the address without being also stated in the
acceptance; and the company's name is cor-
rectly stated although the abbreviation
" Ltd." is used instead of the complete word
" Limited." Stacey <f Co. v. TFa//i.s, 106 L. T.
544; 28 T. L. E. 209— Scrutton, J.
Compromise of Managing Director's Claims.]
— A }>(ina fide coiiiproinise of reasonable claims
made by a managing director against the com-
pany, by payment of a sum of money out of
capital of the company, is not illegal. Irish
Provident Assurance Co., In re, [1913]
1 Jr. E. 352— C.A.
A bona fide transaction with a company im-
peachable only on tlie ground of being ultra
vires will be set aside only on the terms that
both parties be restored to their original rights.
76.
9
259
COMPANY
260
Company Purchasing its Own Shares.] — It
is ultra vires for a company to purchase its
own shares, or to advance capital of the com-
pany to a director to do so. Trevor v. Whit-
worth (57 L. J. Ch. 28; 12 App. Cas. 409)
applied. Irish Provident Assurance Co., In re,
[1913] 1 Ir. E. 352— C.A.
Sale of Assets to New Company for Shares
— Distribution of Consideration — Memoran-
dum of Association — Objects — Articles of
Association — Resolution — Special Resolution —
Dissentients." — Where the memorandum of
association of a company gives power to sell
its business and property to another company
in consideration of shares and power to distri-
bute such shares among its members, a resolu-
tion to sell in consideration of shares is not a
sufficient compliance with section 192, sub-
section 1 of the Companies (Consolidation) Act,
1908, unless passed as a special resolution,
even where special resolutions have been
passed for voluntary liquidation and to pre-
scribe the mode of distribution among the
members of the shares to be received as con-
sideration. The rights given to dissentients
by section 192, sub-section 3, necessitate the
passing as a special resolution of some resolu-
tion authorising the liquidator to receive shares
as consideration for a sale. Etheridge v.
Central Uruguay Northern Extension Rail-
way, 82 L. .1. Ch. 333; [1913] 1 Ch. 425;
108 L. T. 362: 20 Manson, 172; 57 S. J. 341;
29 T. L. E. 328— Joyce, .J.
Semble, where the Companies (Consolida-
tion) Act, 1908, requires a resolution to be
passed as a special resolution, so long as the
course of procedure expressly indicated by
section 69 is followed the resolution is not
invalidated by the omission of any further
formality required by the articles of the parti-
cular company in regard to special resolutions.
lb.
Bisgood v. Henderson's Transvaal Estates,
Lim. (77 L. J. Ch. 486; [1908] 1 Ch. 743),
applied. lb.
Sale of Company by Promoters — Promotion
of another Company by Same Promoters —
Promoters only Persons Interested — Amal-
gamation— Sale of Amalgamated Companies
— Promoters' Claim as Creditors — Ultra
Vires.' — A syndicate of four persons pur-
chased bonds of a railway company which had
become bankrupt, and was not being worked.
The syndicate spent a substantial sum in im-
proving the railway and bought up a judgment
against the company. They then procured the
incorporation of another company with power
to acquire and construct railways, in which all
the shares really belonged to the members of
the syndicate. The original company was
transferred to the company thus incorporated
and the amalgamated company was sold. The
respondents, to whom the syndicate had
assigned their rights, claimed to rank as credi-
tors against the purchase money : — Held, that
the members of the syndicate were entitled to
rank above the unsecured creditors and were
not in a fiduciary position, and that the claim
must be allowed. Att.-Gen. for Dominion of
Canada v. Standard Trust Co. of New York,
80 L. J. P.C. 189; [1911] A.C. 498; 105 L. T.
152— P. C.
Lease by Company of its Property —
Approval of Lease by Majority of Share-
holders — Power of Majority to Bind
Minority.] — Where a dissentient minoritj- of
shareholders in a company seek redress against
the action of the majority they must shew that
such action is ultra vires, or that the majority
have abused their powers or are depriving the
minoritv of their rights. Dominion Cotton
Mills Co. V. Amyot, 81 L. J. P.C. 233; [1912]
A.C. 546; 106 L. T. 934; 19 Manson, 363;
28 T. L. E. 467— P.C.
Two shareholders in a cotton company
brought an action to set aside a lease of
the company's mills. The company was in-
corporated by letters patent, which were
afterwards superseded by an Act of the Parlia-
ment of Canada, which in express terms
authorised the company to dispose of its mills.
The lease was approved by a resolution of the
company in a general meeting : — Held, that
the lease was not ultra vires of the company,
being expressly authorised by the Act of Parlia-
ment, and that its terms were intended to be.
and in fact were, fair, and based on a fair and
liberal valuation. Burland v. Earle (71 L. J.
P.C. 1; [1902] A.C. 83) followed. lb.
VII. DEBENTUEES AND MOETGAGES.
1. Priobities.
See also Vol. III. 1098, 2430.
Assets Insufficient — Floating Security —
"Without any preference or priority" —
Payment of Interest to Some Debenture-
holders to Later Date than to Others — Other
Holders not Entitled to Preferential Payment
of Arrears.^ — Where debentures ranking pari
passu without anj- preference or priority are
secured by a floating charge on the under-
taking and property of a company, and the
assets are insufficient to pay in full the prin-
cipal of the debentures and arrears of interest,
the assets ought to be distributed rateably in
accordance with the amounts due for principal
and interest, although some of the debenture-
holders have been paid interest down to a
later date than others. Those others are not
entitled to any preferential payment of their
arrears. Midland Express, Lim., In re;
Pearson v. Midland Express, Lim., 83 L. J.
Ch. 153; [1914] 1 Ch. 41; 109 L. T. 697;
21 Manson, 34; 58 S. J. 47; 30 T. L. E. 38
Q ^
Decision of Sargant, J. (82 L. J. Ch. 291;
[1913] 1 Ch. 499), affirmed. lb.
Assignment of Book Debts — Rights of
Mortgagee — Rents in Arrear — Floating
Charge — Customs " Drawbacks " — Notice.] —
A brewery company created debenture stock
secured by a trust deed. By that trust deed
the company specifically mortgaged to the
trustees certain freehold and leasehold pro-
perties and created a general charge on the
assets of the company. In the course of busi-
ness they shipped through shipping agents beer
for foreign ports and became entitled to
261
COMPANY.
262
certain drawbacks provided for by the Inland
Eevenue Act, 1880. Those drawbacks be-
came a debt due from the Crown to the firm
of brewers, and they were assigned by them
to the trustees for their bankers. No notice
of this assignment was given to the Crown
authorities by the assignees. A receiver for
the debenture-holders took possession and
gave notice to the Crown authorities having
at that time knowledge of the previous assign-
ment to the trustees for the bank : — Held
(following Ward V. Royal Exchange Shipping
Co., 58 L. T. 174), that as the company had
power by their contract with the debenture-
holders to deal with the drawbacks, the de-
benture-holders could not with notice of the
assignment obtain priority to the assignees
by giving notice to the Crown authorities.
Ind, Coope & Co., In re; Fisher v. The Com-
pany, 80 L. J. Ch. 661; [1911] 2 Ch. 223;
105 L. T. 356; 55 S. J. 600— Warrington, J.
Charge on Specific Articles — Usual "float-
ing charge " — Condition — Fixed Charge not
Altered thereby."! — Where a debenture gave
a charge on specific articles, but one condition
contained the words commonly used in refer-
ence to floating charges, " but so that the
company is not to be at liberty to create any
mortgage or charge in priority to or pari passu
with the said debentures " : — Held, that these
words could not be constructed as implying the
creation of a floating charge contrary to the
specific charge already given by the debenture.
Gregson v. Taplin d- Co., 112 L. T. 985;
59 S. J. 349— Sargant, J.
Charge on Present and Future Assets —
Property Subsequently Acquired — Loan to
Effect Purchase — Equitable Charge.] — In
1901 the defendant company issued a series
of debentures secured by way of floating
charge on its property both present and future.
By a condition indorsed on the debentures the
company was precluded from creating any
other mortgage or charge to rank equally with
or in priority to these debentures. In 1904
the company, being unable to find the purchase
money to effect a purchase of some new works,
obtained the promise of a loan of 1,000Z. from
R. on the condition that the loan was to be
secured by a first charge on the works. There-
upon the company entered into an agreement
to purchase the property for 1,100/. and paid
a deposit of 150L The same solicitor acted for
all parties, and on the date fixed for comple-
tion R. gave a cheque for 1,000/. to the com-
pany, which paid it into its own account and
drew 950/. in cash to complete the purchase.
At the completion tlie solicitor took possession
of the title deeds on R.'s behalf, and a few
days later the company executed an equitable
charge on the works in R.'s favour to secure
the loan. The solicitor never knew of the
debentures, and made no enquiry on R.'s be-
half as to whether the company was precluded
from granting a first charge : — Held, that R."s
equitable charge was entitled to priority over
the debentures because in equity the company
had only acquired the equity of redemption in
the works subject to R.'s charge of 1,000/.
Connolly Brothers, Lim., In re; Wood v.
Connolly Brothers, Lim., 81 L. J. Ch. 517;
[1912] 2 Ch. 25; 106 L. T. 738; 19 Manson,
259— C. A.
Mortgage of Land of Company — Notice —
Debenture Issued to Director having Notice
of Prior Mortgage." — The equitable doctrine
of notice is not applicable to section 93 of the
Companies (Consolidation) Act, 1908. Conse-
quently a debenture which has been duly
registered under section 93 of the Companies
(Consolidation) Act, 1908, takes priority over
a prior unregistered mortgage even in a case
where the debenture-holder took his debenture
with notice of the prior mortgage. Edwards
V. Edwards (45 L. J. Ch. 391 ; 2 Ch. D. 291)
applied. Greaves v. Tofield (50 L. J. Ch. 118;
14 Ch. D. 563) distinguished. Monolithic
Building Co., In re; Tacon v. The Company,
84 L. J. Ch. 441; [1915] 1 Ch. 643; 112 L. T.
619 ; 59 S. J. 332— C. A.
Decision of Astbury, J. (84 L. J. Ch. 134j,
reversed. Ih.
Specific Mortgage by Debenture — Floating
Charge — No Power to Create Further Charge
in Priority to Debentures.] — By a debenture
trust deed dated August 21, 1899, a company
gave a specific charge on certain properties and
a floating charge on all its assets present and
future to secure an issue of debentures, but
reserved power to dispose of its assets in the
ordinary course of its business, but not " to
create any further charge on or over its under-
taking or property generally to rank pari passu
with or in priority to or otherwise than
subject to and in subordination to the secu-
rity " thereby constituted. On September 7,
1903, the company gave a specific charge {inter
alia) on property which it had acquired since
the date of the deed of August 21, 1889, to
secure another issue of debentures, and it also
gave a floating charge on all its assets both
present and future subject to the first issue of
debentures : — Held, that once the floating
charge created by the deed of August 21, 1899,
had crystallised, the debenture-holders under
that deed obtained a charge on all the pro-
perty, including that acquired subsequently,
ranking in priority to the security of the
debenture-holders under the deed of Septem-
ber 7, 1903. Stephenson d Co., In re; Poole
V. The Company, 83 L. J. Ch. 121; [1913]
2 Ch. 201; 107 L. T. 33; 20 Manson, 358;
56 S. J. 648— C. A.
Second Series of Debentures Purported to
be Issued to Rank Pari Passu with First
Series — Priority.] — In the absence of any
special provision to the contrary, a limited
company cannot create a second floating charge
ranking in priority to or pari passu with a
first floating charge. Cope d Sons, Lim., In
re; Marshall v. The Company, 83 L. J. Ch.
699: [1914] 1 Ch. 800; 110 L. T. 905;
21 Manson, 254; 58 S. J. 432— Sargant, J.
Fixtures — Hire-purchase Agreement — Sub-
sequent Issue of Debentures — Appointment
of Receiver.] — By an agreement made
between the applicants and the defendant
company the applicants agreed to erect and
complete a sprinkler installation for the pro-
tection of the defendants' premises from fire.
263
COMPANY.
264
By the agreement the sprinkler was to be
paid for by instalments ; in default of pay-
ment of any one instalment the whole of the
unpaid instalments were to become payable ;
and it was agreed that the sprinkler should
remain the property of the vendors until the
entire sum should have been paid. Sub-
sequenth' to the date of this agreement the
defendant company issued debentures, and
thereafter a receiver was appointed on behalf
of the debenture-holders. The applicants not
having been paid the full amount of the
sprinkler installation claimed to be entitled to
enter upon the defendant company's premises
and remove the installation : — Held, that the
applicants were entitled to remove the installa-
tion, notwithstanding the appointment of the
receiver. Morrison, Jones d Taylor, Lim.,
In re; Cookes v. The Company, 83 L. J. Ch.
129 ; [1914] 1 Ch. 50 ; 58 S. J. 80 ; 30 T. L. E.
59— C.A.
Trustees' Remuneration — First Charge
therefor upon Sale by Trustees — Sale under
Order of Court — Payment into Court — Lien.]
— Trustees for first debenture stockholders
were by their deed of trust empowered, upon
their security becoming enforceable, to sell the
mortgaged premises and to hold the moneys to
arise from any such sale upon trust thereout,
first to pay costs and expenses " including the
remuneration of the trustees," and then to dis-
tribute among the stockholders ; and the
trustees were to be paid " in each and every
year during the continuance of this security as
and by way of remuneration for their services
as trustees " 250 guineas per annum. The
security became enforceable. A receiver was
appointed. In an action by prior lien deben-
ture-holders the mortgaged premises were sold
and the proceeds of sale paid into Court.
The trustees joined in the conveyance, but
they did not themselves sell the property or
receive the purchase money. After satisfying
the prior lien debenture-holders a surplus
remained in Court : — Held, that the rights of
the trustees were not to be prejudiced by the
order for payment into Court, and that they
were entitled to a first charge on the funds in
Court for their full remuneration in priority
to the first debenture stockholders until the
trusts of their deed should be finally wound up.
Piccadilly Hotel, Lim., In re; Paul v.
Piccadilly Hotel, Lim., 81 L. J. Ch. 89;
[1911] 2 Ch. 534; 105 L. T. 775; 19 Manson,
85; 56 S. J. 52— Swinfen Eady, J.
Debentures — Trust Deed — Payment into
Court — "Continuance of security" — Re-
muneration only while SerYices Rendered —
Work Done by Trustee's Solicitor.] — By a
trust deed securing the debenture stock of a
company the trustees were to hold the proceeds
of conversion of the property charged upon
trust in the first place to pay or retain the
costs and expenses incurred in the execution of
the trust, " including therein their own
remuneration." The deed provided that the
company should " during the continuance of
this security " pay to the trustees as and by
way of remuneration for their services an
annual sura. In an action by debenture stock-
holders a receiver was appointed and the pro-
perty was sold in the action and the proceeds
paid into Court : — Held, that the trustee was
entitled to remuneration out of the proceeds
of sale, but only down to the appointment of
the receiver, after which date there were, in
substance, no services rendered by the trustee
other than work done by his solicitor and in-
cluded in his costs of the action, for which no
remuneration could be allowed to the trustee.
Locke d- Smith, Lim., In re; Wigan v. The
Company, 83 L. J. Ch. 650; [1914] 1 Ch. 687 ;
110 L. T. 683; 21 Manson, 267; 58 S. J. 379
—Eve, J.
2. Registration.
-See also Vol. III. 1114, 2436.
Assignment of Debt.] — A limited company,
in consideration of an advance from their
bankers, executed an assignment which, after
reciting that the company were entitled to
80Z. 7s. from the defendant, that it had been
agreed that that debt should be assigned to
the bankers, and that by a letter of even date
the defendant had been directed by the com-
pany to pay the debt in question to the
bankers, assigned unto the bankers so much
of the defendant's debt " as may be necessary
to indemnify the assignees " for the amount
advanced by them to the company. After
executing that deed the company wrote to the
defendant requesting him to pay the debt due
to them to the bankers. A few days later the
company went into voluntary liquidation. The
assignment to the bankers was not registered.
The liquidator claimed to recover the debt
from the defendant on the ground that the
assignment to the bankers, being unregistered,
was void as against him, but the defendant
insisted upon paying the debt to the bankers :
— Held, that the liquidator was entitled to
recover, inasmuch as by section 93 of the
Companies (Consolidation) Act, 1908, the un-
registered assignment was void as against
him. Saunderson d Co. v. Clark, 29 T. L. R.
579 — Lush, J.
It is impossible for the parties to a trans-
action by way of mortgage or charge to alter
the effect of section 93 of the Companies
(Consolidation) Act, 1908, by adopting a form
which does not accord with the real transaction
between them. lb.
Charge on Book Debts — Re-insurance Con-
tract.]— On May 5, 1909, a re-insurance
contract was entered into between an insurance
corporation (re-insurers), the applicants (re-
insured), and a third party. The contract
contained elaborate provisions for the payment
of premiums and recoupment of losses and
claims under which no premiums were payable
direct to the re-insurers, but the aggregate
premiums, less the aggregate losses and
claims, were made payable to the third party,
who was to pay them into a joint account.
The current balances to the credit of the joint
account were to be held on trust to recoup the
re-insured losses and claims. No part of the
balance was payable to the re-insurers until
1913, when the actual profit for the year 1910
was to be ascertained and paid to the re-
insurers, less a sum held in reserve to provide
265
COMPANY.
•266
for unascertained liabilities, and not paid over
until all risks had run off. The liquidator
of the Law Car Corporation contended that
the contract was a charge on book debts of the
corporation within section 93, sub-section 1 (c),
and, not having been registered, was void
against him : — Held, that the contract on its
true construction created no charge on the book
debts, and therefore did not require registra-
tion. Law Car and General Insurance Cor-
poration, In re, 55 S. J. 407 — Swinfen Eady, J.
Letters of Hypothecation on Shipments
or the Proceeds thereof — bhipment of Goods by
Company on Bills of Lading to Customers'
Order.] — The plaintiffs made advances to the
defendant company by accepting their drafts.
The company shipped goods to their customers
abroad and gave the plaintiffs duplicates of
the bills of lading, copies of the invoices, and
in each case a letter hypothecating " the
shipments or the proceeds thereof." The
goods shipped were sold on six months' credit
and on the terms of all charges from the ware-
house in this country being paid by the
customers. The bills of lading were made out
to the customers' order, and the customers
had no notice of the letters of hypothecation.
The defendant company having gone into
liquidation, the plaintiffs claimed to be secured
creditors in respect of the drafts accepted by
them, and to be entitled to the proceeds of
the goods hypothecated to them by the defen-
dant company : — Held, that each letter of
hypothecation gave a mortgage or charge, not
on the goods comprised in the shipment, but
on the proceeds thereof, and that it constituted
a charge on the book debts of the defendant
company within section 93 of the Companies
(Consolidation) Act, 1908, and as it was not
registered it was void as against the liquidator
within that section. Ladenburg v. Goodwin,
Ferreira <t Co., 81 L. J. K.B. 1174; [1912]
3 K.B. 275; 107 L. T. 587; 18 Com. Cas. 16;
19 Manson, 383; 56 S. J. 722; 28 T. L. R. 541
— Pickford, J.
Deed Securing Bonus to Allottees of
Debentures Stock.^ — In order to give addi-
tional benefits to the allottees of an issue of
its debenture stock, a company also issued
" bonus certificates " to them secured by a
trust deed. The trust deed recited that the
company was negotiating an arrangement for
certain dealings in land, and by clause 1 the
company covenanted to pay the trustees one-
fourth of all profits therefrom not exceeding
the nominal amount of debenture stock issued.
Clause 2 provided that meanwhile one-fourth
of all such profits in each year should be paid
to the trustees before September 30 following,
with interest thereon in default ; and by
clause 4 the company charged all its rights and
interests both present and future under or by
virtue of such arrangement, and all profits
from time to time received or derived there-
from, with the payment of all moneys from
time to time payable under clauses 1 and 2,
and as a security for the due performance by
the company of all the obligations imposed
upon it by "that deed. Clause 5 provided for
the issue of bonus certificates to the allottees
of stock and for transfers and dealings there-
with : — Held, that the trust deed constituted
a mortgage or charge for the purpose of secur-
ing an issue of debentures, and was also a
floating charge on the undertaking or property
of the company, and therefore required regis-
tration under the Companies Act, 1900, s. 14,
sub-ss. 1 (a) id). Hoare v. British Columbia
Development Association, 107 L. T. 602 —
Neville, J.
Agreement for Pledge of Goods — Construc-
tive Delivery.] — A distillery company, with
power to create debentures and to borrow on
mortgage, having issued a first series of deben-
tures, proceeded to issue a second series of de-
bentures which provided that, although nothing
therein contained should be taken to authorise
the creation of any mortgage or charge on the
property of the company in priority to such
debentures, the company might by delivery
warrant or other means pledge to their bankers
or others their manufactured whisky, to secure
advances for the purposes of the company's
business. The plaintiff advanced moneys to
the company on the security of their manufac-
tured whisky lying in the bonded warehouse of
the company as follows : On the occasion of
each advance the name of the plaintiff was
entered in the company's stock book opposite
the particulars of whisky intended to be
pledged, and a delivery warrant and invoice,
each containing particulars of such whisky,
were delivered to the plaintiff. The assets of
the company, including the whisky pledged to
the plaintiff, were realised by the receiver
appointed in an action brought on behalf of the
first debenture-holders, and proved insufiicient
to pay the plaintiff's claim and those of the
second debenture-holders in full. In an action
by the plaintiff against the trustees for the
second debenture-holders and the company, —
Held (Cherry, L.J., dissenting), first, that the
agreement to pledge, followed by the transfer
of specific whisky into the plaintiff's name in
the books of the company, effected a valid
pledge of the whisky so transferred, indepen-
dently of the warrants, and that the plaintiff
was entitled to the security so obtained in
priority to the second debenture-holders ; and
secondly, that the warrants delivered to the
plaintiff did not require registration as bills
of sale under section 14 (c) of the Companies
Act, 1900, and section 4 of the Bills of Sale
Act. Dohertij v. Keimedy, [1912] 1 Ir. R.
349— C.A. See S. C. in H.L., sub nom. Dublin
City Distillery v. Doherty {infra}.
Lien for Advances.] — A company issued
debentures which purported to create a floating
charge on the general assets of the company,
and were further secured by a trust deed ; the
debentures were not registered under section 14
of the Companies Act, 1900 -.—Held, that the
debentures were void for want of registration
so far as they purported to create a general
floating charge on the general assets of the
company, but that the holders were entitled,
as cestuis que trust under the trust deed, to
a valid lien on the debentures, so far as they
affected the freehold and leasehold properties
comprised in that deed, for the amount of
the advances made by them. Dublin City
Distillery v. Doherty, 83 L. J. P.C. 265;
267
COMPANY.
268
[1914] A.C. 823; 111 L. T. 81; o8 S. J. 413
— H.L. (Ir.)
Time for Registration — Deposit to Secure
Overdraft — Date of Creation of Charge.] —
The period of twenty-one days within which
under section 93 of the Companies (Consolida-
tion) Act, 1908, every mortgage or charge
created by a company must be registered,
begins to run from the date of the execution
of the instrument creating the mortgage or
charge and not from the date of the first
advance made under the instrument. Esberger
V. Capital and Counties Bank, 82 L. J. Ch.
576; [1913] 2 Ch. 366; 109 L. T. 140;
20 Manson, 252 — Sargant, J.
In September, 1910, a company obtained
an overdraft from their bankers upon deposit
of title deeds and execution of a memorandum
of charge. The memorandum was executed
in due form by the company, but was left
undated. The overdraft continued, and subse-
quently the manager of the bank filled in the
date in the memorandum as June 14, 1911.
The memorandum was not registered with
the registrar of companies until July 3, 1911.
The company eventually went into voluntary
liquidation : — Held, that the memorandum of
charge was not registered in due time as
provided by section 93 of the Companies (Con-
solidation) Act, 1908, and was consequently
void as against the liquidator and creditors of
the company.' lb.
Extension of Time for — Repeal of Act of
1900." — Section 15 of the Companies Act,
1900, empowered the Court to extend the
time for the registration of debentures in
certain cases. Section 286 of the Companies
(Consolidation) Act, 1908, repealed the Com-
panies Act, 1900 : — Held, that the right given
by section 15 of the Act of 1900 to apply to
the Court for an extension of time was
preserved, notwithstanding the repeal of that
Act bv the operation of section 38, sub-section 2
of the Interpretation Act, 1889. Lush ct Co.,
In re, 108 L. T. 450; 57 S. J. 341— Farwell,
L.J.
3. Issue of.
See also Vol. III. 1119, 2442.
Insolvent Company — Floating Charge
Created within Three Months of Winding-up
— Validity. 1 — Section 212 of the Companies
(Consolidation) Act, 1908, precludes an insol-
vent company from creating floating charges
within three months of the commencement of
its winding-up. except for money actually paid
which comes into the assets of the company
and is available for creditors. In 1904 direc-
tors of a companv guaranteed its overdraft
at the bank up to 2,000/. In February, 1910,
the bank was pressing the company and
directors in regard to the overdraft then
existing and the guarantee ; and at a meeting
of directors it was resolved that the company
should pay the bank 1,500?. in respect of the
overdraft. It was further agreed, though the
agreement did not appear in the minutes,
that in consideration of the guaranteeing
directors finding the 1..500Z. they should receive
debentures to cover them in respect of the
payment, in addition to debentures already
held by them ; and three of them accordingly
sent the company cheques for 500Z. each,
whereupon the company sent its cheque to the
bank. In March, 1910, at a further directors'
meeting, a resolution was passed for the issue
of debentures for 500L to each of the three
directors ; but the debentures were never
actually issued, nor was there any entry in
the register regarding them. In April, 1910,
a resolution for the voluntary winding-up of
the company was passed : — Held, without
deciding whether the charge (if any) created
by the agreement required registration, that it
was invalid under section 212. Orleans Motor
Car, In re; Smyth v. The Company, 80 L. J.
Ch. 477; [1911] 2 Ch. 41; 104 L. T. 627;
18 Manson, 287— Parker, J.
Guarantee of Issue — Release of Guarantor
— Majority Binding Minority — " Arrange-
ment or compromise." — An arrangement
whereby the guarantors of an issue of deben-
tures are released from their guarantee, the
interest on the debenture debt is increased,
new trustees of the trust deed securing the
debentures are appointed, and the sinking
fund discontinued, is an " arrangement or
compromise " which the Court has jurisdiction
to sanction under the Joint-Stock Companies
Arrangement Act, 1870. Shaw v. Royce. Lim.,
80 L. J. Ch. 163; [1911] 1 Ch. 138; 103 L. T.
712; 18 Manson, 159; 55 S. J. 188— Warring-
ton, J.
A resolution making such an arrangement
and carried by the requisite majority at a
meeting of the debenture-holders of a company
is binding upon the minority. lb.
Resolution to Issue Debentures — Effect of
Interested Directors Voting.] — By a deed
executed in 1895 property of a company was
conveyed to trustees for the holders of second
debentures to be thereafter issued. The articles
of association of the company provided that
no director should vote in respect of any
matter in which he was individually interested.
They fixed the quorum of directors at two.
At a meeting of directors held on May 12,
1903, at which three directors (two of them
being D. and K.) were present, it was resolved
that certain second debentures should be issued
in trust for D. and K. as security for advances
made by them to the company, which deben-
tures were subsequently issued : — Held, that
as D. and K. were interested parties there
was no quorum competent to vote on the
resolution, and the resolution was invalid.
Greymouth Point Elizabeth Railway cfc. Co.,
In re (73 L. J. Ch. 92; [1904] 1 Ch. 32),
followed. Cox V. Dublin City Distillery
{No. 2), [1915] 1 Ir. R. 345— C. A.
At a meeting of directors held on May 16,
1903, at which five directors (including C. and
T.) were present, each of the directors present
agreed to advance a certain sum to provide
new plant, and it was resolved to issue certain
second debentures in trust for those making
such advances as security for the sums. At
a meeting of directors held on June 25, 1903,
at which C. and T. were not present, these
debentures were issued : — Held, that the
resolution of May 16 was invalid, and that
269
COMPANY.
270
the debentures issued to C. and T., having
been issued in pursuance of that resolution,
were void, notwithstanding that C. and T.
were not present at the meeting at which the
debentures were issued. lb.
At a meeting of directors lield on January 20,
1904, at which K., D., and H. were the
directors present, it was resolved to issue
certain second debentures in trust for persons
making advances to the company as security
for such advances, and in pursuance of this
resolution second debentures were issued in
trust for C. and T. (directors). In pursuance
of the same resolution second debentures were
also issued to K. and D. : — Held, that the
resolution of January 20, 1904, was invalid,
and that the debentures issued to C. and T.
in pursuance of it were void. Held also,
that the holders of the void debentures could
not claim the benefit of the trust deed of 1895.
The effect of the decision in Doherty v.
Kennedy or Dublin Distillery v. Doherty
([1912] 1 Ir. R. 349, 363; 83 L. J. P.C. 265;
[1914] A.C. 823) as to the right of a holder
of invalid debentures to rely on the trust deed
securing them considered. lb.
In pursuance of the resolutions of May 16,
1903, and January 20, 1904, certain second
debentures were issued in trust for persons
who were outsiders and had no notice of any
irregularity in the resolutions : — Held, that
such debentures were valid, and that their
validity could not be questioned either by the
company or the holders of other second deben-
tures. County of Gloucester Bank v. Rudry
Merthyr Steam and House Coal Colliery Go.
(64 L. J. Ch. 451; [1895] 1 Ch. 629) followed.
Mowatt V. Castle Steel and Iron Works Co.
(34 Ch. D. 58) distinguished. lb.
In the course of the present action, which
was brought by a holder of first debentures,
D. and K. applied to the Judge for liberty
to institute a joint action to establish their
rights in respect of (inter alia) the second
debentures issued to them. An order was
made on this application, giving D. liberty to
proceed with an action against the trustees
of the second debenture holders and the com-
pany for the purpose of establishing the rights
of the applicants. The action was brought
by D. in his own name alone, and dealt with
his rights only. It resulted in a judgment
in his favour as regarded his debentures.
The validity of the debentures issued to K.,
C, and T. having been challenged in the
present proceedings by the other second
debenture holders and by the liquidator of
the company : — Held, that K., C, or T. could
not rely on this judgment by way of estoppel.
What is necessary to constitute a test action
considered. lb.
4. Remedies of Debenture-Holders.
a. Generally.
See also Vol. III. 1122, 2446.
Covenant to Pay On or After Named Day
— Debentures to be Paid to be Determined
by Ballot— Right of Holder to Payment-
Construction — Reference to Prospectus.] — In
1892 a company issued a scries of debentures.
The prospectus stated that the debentures
would be redeemable at the option of the
company on or after January 1, 1898, on the
company giving six months' notice of its
intention. The debentures to be repaid would
be determined by ballot. The accompanying
application form contained an agreeuient to
accept the debentures allotted on the terms
of the prospectus. Each debenture contained
a covenant by the company to pay, on or
after January 1, 1898, the amount secured to
the party therein named or other the regis-
tered holder for the time being, and a provision
that the debentures to be paid off would be
determined by ballot, and six months' notice
would be given by the company of the deben-
tures drawn for payment. The company not
having paid off any of the debentures, or held
any ballot, the plaintiff, who was the trans-
feree and registered holder of a debenture,
in 1909 gave the company notice demanding
payment of the sum thereby secured within
six months, and on the company's failing to
pay brought an action to enforce payment : —
Held (following Chicago and North-West
Granaries Co., In re, 67 L. J. Ch. 109; [1898]
1 Ch. 203), that the Court could not, in
construing the debenture, refer to the pros-
pectus ; that on the true construction of the
covenant the sum covenanted to be paid was
presently due and payable ; and that the
provision respecting a ballot did not relieve
the company from liability to pay unless it
elected to hold a ballot, since a covenant to
pay, with a proviso that it should be enforced
only at the covenantor's option, would be void
for repugnancy. Watling v. Letvis (80 L. J.
Ch. 242; [1911] 1 Ch. 414) applied. Tewkes-
bury Gas Co., In re; Tysoe v. The Company,
80 L. J. Ch. 723; [1912] 1 Ch. 1 ; 105 L. T.
569 ; 18 Manson, 395 ; 56 S. J. 71 ; 28 T. L. R.
40— C. A.
Guarantee — Re-insurance by Guarantors —
Winding-up — Security Enforceable — Guaran-
tors Trustees for Debenture-holders — Right
of Debenture-holders to Insurance Moneys.]
— A guarantee society entered into a guarantee
with the debenture-holders of a limited com-
pany for the payment of the principal and
interest due to them. The society were also
appointed trustees for the debenture-holders
at an annual remuneration. The company
went into liquidation, and the society went
into possession of the security on behalf of the
debenture-holders. Sul)sequently the society
also went into liquidation, and a scheme of
arrangement was agreed to by ci'editors and
confirmed by the Court. The society had
previously re-insured their liability upon the
debentures, and were entitled to payment of
the full amount due under this contract : —
Held, that the debenture-holders had no claim
to the money received by the society under
the re-insurance contract, but that it nmst be
applied as part of the general assets of the
society. Law Guarantee Trust and .Accident
Society, In re; Godso)i's Claim, 84 L. J. Ch.
510; [1915] 1 Ch. 340; 112 L. T. 537; [1915]
H. B. R. 103; 59 S. J. 234 -Neville, J.
Floating Charge — Judgment Creditor —
Garnishee Order Nisi — Garnished Debt
271
COMPANY.
272
Claimed by Debenture-holder — No Appoint- \
ment of Receiver — Interpleader — Right of
Judgment Creditor to have Garnishee Order
made Absolute.] — A limited company, to
secure the repayment of money advanced to
them, issued a debenture whereby they
charged with such repayment all their under-
taking and all their property and assets. A
creditor of the company having commenced
an action against the company in the County
Court, the debenture-holder gave notice to the
company to pay off the debenture, which
notice was not complied with. Judgment
having been given against the company in the
County Court action, the judgment creditor
obtained a garnishee order nisi attaching the
balance standing to the credit of the com-
pany in their account with their bankers.
The debenture-holder gave notice to the
bankers, and also to the company and to the
judgment creditor, claiming tliat he was
entitled to have the bank balance paid to him ;
but he did not take any other step to enforce
his security. The bankers interpleaded, and
the County Court Judge gave judgment in the
interpleader proceedings for the judgment
credi*^or against the debenture-holder and
directed that the garnishee order nisi should
be made absolute : — Held, that, as nothing
had happened to convert the debenture-
holder's floating charge into a specific charge,
the garnishee order nisi was rightly made
absolute. Evans v. Rival Granite Quarries
Co., 79 L. J. K.B. 970; [1910] 2 K.B. 979;
18 Manson, 64; 54 S. J. 580; 26 T. L. E.
509— C. A.
Unpaid Calls — Specific Performance.] — The
plaintiffs were a limited company, and the
defendant an allottee of certain debentures
created by them. The debentures were issued
on the terms of a debenture prospectus, which
contained provisions that the debentures
should be payable " on application 11., on
allotment IL, and the balance as required in
calls not to exceed 4Z. per debenture at inter-
vals of not less than four months," and that
non-payment of any instalment would render
all previous payments liable to forfeiture
" in the same manner as under articles 36
to 45 of the company's articles of association
shares are forfeitable on which calls are in
arrear." The debentures were allotted on
May 26, 1913. On June 23, 1913, the plain-
tiffs made a first call payable on July 5, and
on October 23, 1913, a second call payable
on November 8. The defendant failed to pay
these calls. Subsequently, the company for-
feited the debentures standing in his name.
Article 43 of the articles of association, one
of the articles mentioned above dealing with
the forfeiture of shares for non-payment of
calls, provided that a shareholder whose
shares had been forfeited should nevertheless
be liable for all calls made and not paid at
the time of the forfeiture. The plaintiffs
under this article claimed the amount of the
calls as being specific performance of the
contract between them and the defendant.
The defendant argued that no action could lie
for an agreement to advance money such as
this. South African Territories, Lim. v.
Wallincjton (67 L. J. Q.B. 470; [1898]
A.C. 309), and on the terms of the debenture
prospectus the calls and forfeiture were bad,
the first call having been made within four
months after allotment : — Held : First, that
the plaintiffs, having forfeited the debentures,
were not in a position to ask for specific
performance; secondly, that on the authority
of South African Territories, Lim. v.
Wallington (67 L. J. Q.B. 470; [1898]
A.C. 309) they had here no right to recover
with respect to the debentures apart from
specific performance; thirdly, that in order to
make article 43 apply to the debentures clearer
language should have been used than the
general words above quoted ; and fourthly, that
the first call was bad, as being at a less
interval than four months after May 26,
1913 ; the second call was good. Kuala Pahi
Rubber Estates v. Mowbray, 111 L. T. 1072
— Horridge, J.
Distribution of Assets — Debenture Stock
Partly Paid up — Right of Holders to Parti-
cipate Rateably in Assets — Obligation First
to Pay up in Full — No Legal Debt.] — A
debenture stock trust deed made in 1902
provided that the trustees for the debenture-
holders should hold the proceeds arising from
any sale or conversion of the property com-
prised in or charged by the trust deed after
payment of costs and expenses in payment
of arrears of interest; and secondly, in paying
back to the stockbrokers pari passu in propor-
tion to the stock held by them respectively
all the principal moneys owing in respect of
the stock held by them respectively. The
trustees in 1906 took possession of all the
property comprised in the trust deed and
realised it. Certificates were issued to the
stockholders on payment by them of the
amount payable on application, but some of
the stockholders had not paid up the full
amount on tlieir stock, all instalments having
become payable prior to 1904. On the distri-
bution of the proceeds by the trustees the
question arose whether those holders who had
not paid up in full, against whom no pro-
ceedings bad been taken, were entitled to
participate rateably in the distribution without
first paying all instalments due on the stock
held by them : — Held, that the partly paid-
up stockholders were entitled, without first
making their stock fully paid-up stock, to
participate in the assets rateably with the
stockholders who had paid up in full, as the
contract to take up and pay for debentures
was made prior to the Companies Act, 1907,
s. 16, and could not be enforced by an order
for specific performance, the company being
entitled to damages only. The principle,
therefore, of Cherry v. Boultbee (9 L. J. Ch.
118; 4 Myl. & Cr. 442) was not applicable, that
principle having been applied only where the
obligation to contribute was a legal obligation
in the sense of a debt. RJiodesia Goldfields,
In re ; Partridge v. Rhodesia Goldfields
(79 L. J. Ch. 133; [1910] 1 Ch. 239),
distinguished. Abrahams' Estate, In re;
Abrahams v. Abrahams (77 L. J. Ch. 578;
[1908] 2 Ch. 69), applied. Smelting Corpora-
tion, In re; Seaver v. Smelting Corporation,
84 L. J. Ch. 571; [1915] 1 Ch. 472; 113 L. T.
44; [1915] H. B. E. 126— Astbury, J.
273
COMPANY.
274
Moneys Overpaid by Mistake to Certain
Debenture-holders — Order to Bring Back into
Court Moneys Overpaid.] — In a debenture-
holder's action brought by trustees for deben-
ture-hoklers against an insolvent company,
the realised assets were insufficient to pay
debenture-holders in full. The allocation
schedule was, by mistake, framed on the basis
that certain banking companies, who held
debentures as security for advances made by
them to the company, should receive dividends
on the amounts of the debts due to them,
instead of on the face value of their deben-
tures. As a result the amount allocated to
the banking companies was less than it should
have been, and certain debenture-holders,
directors of the company and parties to the
action, were consequently overpaid. Upon
motion by the plaintiff, who had carriage of
the suit, the directors were ordered to bring
back into Court the amounts by which they
had been overpaid. Piatt v. Caseii's Drogheda
Brewery Co., [1912] 1 Ir. E. 279— Barton, J.
Scheme Affecting Rights of Holders —
Making Special Provision for Special Interests
— Right of Interested Debenture-holder to
Yote on Scheme — Bribe. 1 — While the powers
conferred by a trust deed on a majority of
debenture-holders must be exercised bojia fide,
and the Court will interfere to prevent unfair-
ness or oppression, each debenture-holder may
vote with regard to his interests, though they
be individual and peculiar to himself ; and
where there is a diversity of interest as
between different debenture-holders the making
of special provision for special interest may be
necessary and fair. Such a provision, if
made openly, is not a bribe; and a debenture-
holder is not precluded from voting on a
scheme containing it merely because he is in-
terested thereunder. Goodfellow v. Nelson
Line, 81 L. J. Ch. 564; [1912] 2 Ch. 324;
107 L. T. 344; 19 Manson, 26-5; 28 T. L. K.
461— Parker, J.
Remuneration of Trustee — Debentures -
Trust Deed — Payment into Court — "Con-
tinuance of security " — Remuneration only
while Services Rendered — Work Done by
Trustee's Solicitor.] — By a trust deed
securing the debenture stock of a company the
trustees were to hold the proceeds of conver-
sion of the property charged upon trust in the
first place to pay or retain the costs and
expenses incurred in the execution of the trust,
including therein their own remuneration."
The deed provided that the company should
" during the continuance of this security " pay
to the trustees as and by way of remuneration
for their services an annual sum. In an action
by debenture stockholders a receiver was
appointed and the property was sold in the
action and the proceeds paid into Court : —
Held, that the trustee was entitled to remun-
eration out of the proceeds of sale, but only
down to the appointment of the receiver, after
which date there were, in substance, no
services rendered by the trustee, other than
work done by his solicitor and included in his
costs cf the action, for which no remuneration
could be allowed to the trustee. Locke d
Smith, Lim., In re; Wigan v. The Company,
83 L. J. Ch. 650 ; [1914] 1 Ch. 687 ; 110 L. T.
683; 21 Manson, 267 ; 58 S. J. 379— Eve, J.
Foreclosure — Appointment of Receiver and
Manager — No Previous Application to Court.]
— Section 1, sub-section 1 (b) of the Courts
(Emergency Powers) Act, 1914, which forbids
any person to " foreclose " except after appli-
cation to the Court, does not apply to the
commencement of a foreclosure action or a
debenture-holder's action; nor does the sub-
section preclude the Court from appointing a
receiver and manager if no such application
has been made. Farnot, Eades, Irvine & Co.,
In re; Carpenter v. The Company, 84 L. J.
Ch. 129; [1915] 1 Ch. 22; 112 L. T. 151;
21 Manson, 395 — Warrington, J.
Realisation — Mortgagee in Possession —
Consent of Mortgagor — Emergency Powers. |
— By section 1, sub-section 1 (b) of the Courts
(Emergency Powers) Act, 1914, " No person
shall . . . realise any security (except by way
of sale by a mortgagee in possession) " except
after an application to the Court : — Held, that
the words " mortgagee in possession " are not
limited to mortgagees in possession of real
estate, or to mortgagees who have obtained pos-
session without the consent of the mortgagor.
Ziman v. Koniata Reef Gold Mijiing Co.,
84 L. J. K.B. 1162; [1915] 2 K.B. 163;
113 L. T. 17; 31 T. L. K. 274— C.A.
b. Right to Payment.
See also Vol. III. 1123, 2450.
Right of Company to Compel Payment —
Interest to Date only.] — Where debentures
become enforceable on the happening of certain
events, the debenture-holders have a right to
require payment on the happening of those
events, but they do not put the debenture-
holders in a position of being compelled to
accept payment. Where the events are
entirely within the control of the company to
determine whether they shall happen or not,
the company cannot by determining the event
compel the debenture-holder to accept his
money at a moment's notice. General Motor
Cab Co., In re {No. 2), 56 S. J. 573— Eve, J.
Principal Payable "on presentation at
Lloyds Bank " — Default — Condition Pre-
cedent— Pleading.] — A company had borrow-
ing powers up to 3,000Z., and in July, 1913,
its bank account was overdrawn by that
amount. Thereupon the plaintiff and two
others, in pursuance of a previous agreement
and at the request of the directors, each
handed to the chairman of the company a
cheque for 1,000L to be paid into the bank
in reduction of the overdraft ; each received
in exchange a debenture for 1,000Z., subject
to the following conditions indorsed thereon :
" (3) The principal moneys hereby secured
shall immediately become payable ... if the
registered holder shall serve notice upon the
company requiring payment of the principal
moneys and interest (if any) and the company
has made default . . . for three days after
such service : " " (12) the principal moneys
. . . will be paid at Lloyds Bank Limited,
275
COMPANY.
276
222 Strand, W.C, or other the company's
bankers for the time being, on presentation of
this debenture, which must be surrendered on
payment." On July 22, 1913, the plaintiff
gave notice to the company requiring payment
of principal and interest within three days, but
neither principal nor interest was paid, and the
plaintiff in November, 1913, commenced a
debenture-holder's action claiming the usual
relief. The defence stated in general terms
that the money was not due : — Held, that there
had been default in payment of interest under
condition 3, and that therefore compliance with
condition 12 as to presentation for payment was
not necessary in order to render the principal
payable ; but that if presentation had been
requisite, it was a condition precedent and
should have been pleaded in defence. Held,
also, that the cheque was handed by the
plaintiff to the company as a conditional pay-
ment for the purpose of reducing the overdraft
at the bank, and that the borrowing had not
been in excess of the powers of the company.
Wrexham, Mold, and Connah's Quay Railway,
In re (68 L. J. Ch. 270; [1899] 1 Ch. 440),
followed. Harris Calculating Machine Co., In
re; Smnner v. Harris Calculating Machine
Co., 83 L. J. Ch. 545; [1914] 1 Ch. 920;
110 L. T. 997; 58 S. J. 455— Astbury, J.
c. Receiver and Manager.
See also Vol. III. 1127, 2453.
When Assets are in Jeopardy.] — In a de-
benture-holders' action for the appointment of
a receiver on the ground of jeopardy, where the
security is not yet enforceable upon other
grounds, it is not sufficient for the plaintiff to
shew that the proceeds of the assets if realised
will not be sufficient to pay off the debentures.
The assets are not in jeopardy unless they are
likely to be seized by creditors to pay claims
not having priority to the debentures. Victoria
Steamboats, Lim.. In re: Smith v. Willcinson
(66 L. J. Ch. 21: [1897] 1 Ch. 158), dis-
tinguished. New York Taxicab Co., In re;
Seguin v. The Company, 82 L. J. Ch. 41;
[1913] 1 Ch. 1 ; 107 L. T. 813 ; 19 Manson,
389; 57 S. J. 98— Swinfen Eady, J.
The business of a company having come to
an end, the directors proposed to distribute a
reserve fund consisting of accumulated profits
by way of dividend among the shareholders.
The company's assets were of little value, and
were quite insufficient to pay debenture-holders
who had a floating charge on the assets : —
Held, upon motion by the debenture-holders
for a receiver, that the applicants had a lien
on the fund in question, and that, although
under the express terms of the debenture trust
deed the security was not enforceable, they
were entitled to the appointment of a receiver
upon the ground of jeopardy. New York Taxi-
cab Co., In re; Seguin v. The Company
(82 L. J. Ch. 41; [1913] 1 Ch. 1), dis-
tinguished. Tilt Cove Copper Co., In re;
Trustees, Executors, and Securities Insurance
Corporation v. The Company, 82 L. J. Ch.
545; [1913] 2 Ch. 588; 109 L. T. 138;
20 Manson, 288; 57 S. J. 773— Neville, J.
Jeopardy — Wliat is.l — There is jeopardy,
entitling to the appointment of a receiver,
where, at a directors' meeting, the auditor's
unchallenged statement was that, if the
amount of the principal secured by the deben-
tures could be realised after clearing off the
company's liabilities, that was as much as
could be hoped for ; and where the evidence
also went to shew that, just prior to the meet-
ing, the plaintiff in this debenture-holders'
action had been informed by one of the
directors that the company's funds and credit
were exhausted, but that the creditors were
being held off temporarily by the personal
credit of that director, and that the employees
at one of the branches of the business had
been, or were about to be, dismissed, and had
heard aliunde that the premises of that branch
had been put into agents' hands for the
purpose of letting them. Tilt Cove Copper
Co., In re; Trustees, Executors, and Securities
Corporation v. The Company (82 L. J.
Ch. 545; [1913] 2 Ch. 588), and Victoria
Steamboats, In re; Smith v. Wilkinson
(66 L. J. Ch. 21 : [1897] 1 Ch. 158) followed.
Braunstein d Marjolaine, Lim., In re;
Philipson v. The Company, 112 L. T. 25;
58 S. J. 755— Sargant, J.
Where judgments have been recovered
against a company and execution is likely to
issue, there is jeopardy within the meaning
of Neio York Taxicab Co., In re; Seguin v.
The Company (82 L. J. Ch. 41 ; [1913] 1 Ch. 1.
Grigson v. Taplin d: Co., 85 L. J. Ch. 75;
112 L. T. 985; 59 S. J. 349— Sargant, J.
The amount of property contained in the
specific charge being ample, — Held, that the
fact of jeopardy did not of itself entitle the
plaintiff to the appointment of a receiver and
manager of the whole of the assets and
business of the company, but only to have a
receiver appointed of the assets specifically
charged. lb.
Condition in Debentures — "Voluntary Wind-
ing-up — Reconstruction — Principal Moneys
Due — Immediately Payable.' — Where one of
the conditions indorsed on a series of deben-
tures issued by a company was that the
principal moneys thereby secured should be-
come immediately payable if an order was
made or an effective resolution was passed for
winding up the company otherwise than for
the purposes of reconstruction and the com-
pany passed a resolution for the voluntary
winding-up of the company for the purposes of
reconstruction : — Held, that, notwithstanding
the condition, the principal moneys became due
at the commencement of the winding-up and
that the debenture-holders were entitled to the
appointment of a receiver. Hodson v. Tea
Co. (49 L. J. Ch. 234; 14 Ch. D. 859) and
Wallace v. Automatic Machines Co. (63 L. J.
Ch. 598: [1894] 2 Ch. 547) applied. Crompton
(f Co.. In re; Player v. Crompton d- Co.,
83 L. J. Ch. 666; [1914] 1 Ch. 954; 110 L. T.
759: 21 Manson, 200; 58 S. J. 433— Warring-
ton, J.
Condition for Appointment — Consent of
Majority in Value of Debenture-holders —
Equitable Mortgagee — "Majority in value"
— Power of Court.] — Deben^^ures issued by a
company contained a condition that at any
time after the principal moneys had become
277
COMPANY.
278
due any debenture-holder, with the consent in
writing of the holders of a majority in value
of the debentures, might appoint by writing
a receiver and manager of the business of the
defendant company. Two hundred debentures
had been issued, of which the plaintiffs held
sixty, C. held fifty-five, L. held sixty-five,
and T. held twenty. L. had deposited sixty-
four of his debentures with the plaintiffs as
security for a loan. C. appointed a receiver
and manager with the consent of T. and L.
but without the consent of or notice to the
plaintiffs : — Held, in a debenture-holder's
action, that as the plaintiffs were registered
holders of sixty debentures and equitable
mortgagees of sixty-four debentures, the
receiver and manager had not been properly
appointed without their consent, and that a
receiver and manager should be appointed by
the Court. " Slogger" Automatic Feeder Co.,
In re: Hoare v. TJie Company, 84 L. J. Ch.
587; [1915] 1 Ch. 478; 112 L. T. 579; [1915]
H. B. R. 138; 59 S. J. 272— Neville, J.
Applications to Court.] — Where a receiver
is appointed by the Court in an action, and a
difficulty arises in the execution of his duties,
he ought, as a general rule, to submit the
matter to the party having carriage, who is
the proper person to bring it before the Court.
The receiver should not himself bring the
matter before the Court except under special
circumstances. Windschuegl v. Irish Polishes,
Lim., [1914] 1 Ir. R. 33— Barton, J.
Defendant a Debenture-holder — Receiver
for Debenture-holder Appointed by the Court
— Leave to Carry on Proceedings — Discretion
of Court— Rights of Mortgagees.]— The first
mortgagees of a trading company's property
purported in exercise of their power of sale
to sell the mortgaged property to a rival
company. The company and a debenture-
holder (who was in the position of second
mortgagee) then commenced an action against
the purchasers and the first mortgagees to set
aside the sale, on the ground that it was not
bona fide and was at grossly inadequate price.
Thereupon the purchasers bought up this
debenture and instituted a debenture action in
the name of the holder for the appointment of
a receiver, so as to deprive the company, if
possible, of the means of prosecuting the
action. A receiver was duly appointed by the
Court, and upon the application of the pur-
chasers the Court then ordered the company
to give security for the costs of the action
which had been brought against them. It was
further ordered in chambers that the receiver
should be at liberty to carry on the action and
to have his costs of proceedings out of the
company's assets. The purchasers moved to
discharge this order on the ground that the
receiver would be using assets, upon which
as debenture-holders they had a first charge,
to pay for proceedings brought against them-
selves : — Held, that where a receiver has been
appointed by the Court neither mortgagor nor
mortgagee has any right to say whether pro-
ceedings shall be carried on by the receiver
or not ; the matter is in the discretion of the
Court, and in sanctioning such proceedings
by the receiver the Court will have regard to
the interests of all parties ; and that the order
made in chambers was right. Viola v. Anglo-
American Cold Storage Co., 81 L. J. Ch. 581;
[1912] 2 Ch. 305; 107 L. T. 118; 19 Manson,
287— Swinfen Eady, J.
Liability of Receiver and Manager to
Account to Trustee in Bankruptcy.^ — A
debtor, having sold his business to a company,
shortly afterwards became bankrupt, with the
result that eventually the sale was set aside
as fraudulent and void. Some months before
the sale was set aside a receiver and manager
had been appointed at the instance of the
debenture-holders of the company, and he car-
ried on the business until the date of the order
setting aside the sale, when, by order of the
Court, he transferred the business to the
trustee in bankruptcy of the bankrupt vendor :
— Held, upon the application of the trustee in
bankruptcy, that the debenture-holders and
their receiver and manager were jointly and
severally liable as trespassers to pay to the
trustee in bankruptcy the value of any pro-
perty of the bankrupt of which they were in
possession, or of which they had taken posses-
sion, and which they had converted, and that
they must deliver to the applicant all such
property of the bankrupt as remained in their
possession unconverted. Vaiighan, Ex parte;
Riddeough, in re (14 Q.B. D. 25), followed.
Ely, In re; Ely ,f- Co., ex parte (82 L. T.
501), distinguished. Goldburg, In re; Page,
ex parte, 81 L. J. K.B. 663; [1912] 1 K.'B.
606; 106 L. T. 431; 19 Manson, 138—
Phillimore, J.
Order for Goods — Personal Liability —
Summons for Payment.] — In a debenture-
holders' action against a company a receiver
and manager was appointed, and he was em-
powered by an order made in the action to
borrow not more than 300Z. to carry on the
business. The receiver and manager gave an
order for goods on the understanding that he
was not to be personally liable. In giving
this order he was contracting in excess of the
sum of 300Z. During the proceedings in the
action a summons was taken out by the creditor
for an order that the receiver and manager
should pay him out of the assets or out of his
own moneys. The creditor knew that it was
doubtful whether his and similar debts could
be paid in full out of the assets : — Held, that
the creditor was not entitled to an order for
payment on the summons. Hawkins cf Co.,
In re: Brieba v. Hawkins cf- Co., 31 T. L. R.
247— Astbury, J.
Liability of Receiver for Rent.] — The
receiver of a company's assets, who has been
appointed in a debenture-holders" action, is not
liable, where premises have been leased to the
company and he has sold the assets, including
the tenancy, to pay rent for the period sub-
sequent to that during which he has been in
beneficial occupation. Abbott d- Co., In re;
Abbott V. The Company, 58 S. J. 30;
30 T. L. R. 13— Sargant. J.
An under-lease was granted to E. as trustee
for a company. The company issued deben-
tures to B. to secure money advanced, and
gave him an equitable mortgage of the pro-
279
COMPANY.
280
perty. B. brought a debenture-holders' action,
in which a receiver was appointed, who took
possession. The lessor brought an action
against the lessee for possession and rent, and
obtained judgment. The judgment was staj-ed
upon terms which were not complied with,
and the receiver remained in possession for
some time. The lessor applied in the deben-
ture-holders' action for an order that the
receiver should pay the rent for the period
during which he was in possession, either out
of assets in his hands or personally as a tres-
passer : — Held, that the effect of the judgment
while subsisting was to prevent the lessor
from asserting any rights against the persons
in possession, and the receiver was not liable
for the rent. Westminster Motor Garage Co.,
In re; Bayers v. The Company, 84 L. J. Ch.
753; 112 L. T. 393— Eve, J.
Position of Receiver — Officer of Court to
Discharge Certain Duties.] — The receiver and
manager of a company appointed by the Court
in a debenture-holders' action is an officer of
the Court put in to discharge certain duties,
and is not the agent either of the debenture-
holders or of the company, which still remains
in existence. Parsons v. Sovereign Bank of
Canada, 82 L. J. P.C. 60; [1913] A.C. 160;
107 L. T. 572 ; 20 Manson, 94 ; 29 T. L. E. 38
—P.C.
Assignment of Debt by Receiver — Breach
of Contract— Right of Set-off.]— A receiver,
having delivered goods to a customer of the
company under a contract made by the com-
pany before his appointment, assigned the
amounts due for such goods to a bank, and
afterwards cancelled the contract made by the
company. Notice of the assignment to the
bank was not given to the customer until after
the contract had been cancelled : — Held, that
in an action brought by the bank against the
customer to recover the debt so assigned the
customer was entitled to set off damages sus-
tained by the cancellation of the contract. lb.
Existing Contracts — Onerous Contracts —
Duties of Receiver and Manager.] — A holder
of debentures in a colliery company, having
commenced an ordinary debenture-holders'
action, obtained an interlocutory order for the
appointment of a receiver and manager of the
property and undertaking of the company.
Before this date the company had entered into
a number of forward contracts for the supply
of coal during 1912 at prices below the exist-
ing market price, and the performance of these
contracts would practically exhaust the whole
output of the colliery. In these circumstances
the plaintiff applied for leave for the receiver
and manager to disregard these contracts : —
Held, that the Court would not make a general
order allowing its officers to abandon the whole
of the company's contracts merely because the
property of the company could then be sold to
greater advantage. Newdigate Colliery Co.,
In re; Newdegate v. The Company, 81 L. J.
Ch. 235; [1912] 1 Ch. 468; 106 L. T. 133;
19 Manson, 155 ; 28 T. L. K. 207— C. A.
It is the duty of the receiver and manager
of a company's property and undertaking to
protect both alike from injury, and he is not
entitled to act so as to injure the goodwill
of the undertaking simply because he will
thus enhance the value of the property apart
from the undertaking. lb.
Completion of Contracts Entered into by
Company.] — The Court refused to sanction
the borrowing of money by a receiver and
manager in order to complete a contract
entei'ed into by the company, where no
direct profit could result from its completion
and where there was no evidence that any
indirect profit could ensue. Neicdigate Col-
liery Co., In re (supra), considered. Tha^nes
Iromnorks Co., In re; Farrer v. The Company,
106 L. T. 674 ; 56 S. J. 413 ; 28 T. L. K. 273—
Parker, J.
A holder of debentures in a mining
company, having commenced an ordinary
debenture-holders' action, obtained the usual
order for the appointment of a receiver and
manager of the property and undertaking of
the company. Before the date of issue of the
debentures the company had entered into an
agreement with certain agents by which it
was agreed that they should for a period of
fifteen years be the sole agents of the company
for the whole world for the sale of copper and
silver from the company's mines which the
company might desire to sell on certain terms
as to commission. The debentures were in the
form of a charge on the undertaking of the
company, but were in no way subject to the
performance of the agreement. The goodwill
of the company was of no value, and the assets
of the company were insufficient to satisfy the
claims of the debenture-holders. In these
circumstances the plaintiff applied for leave for
the receiver and manager to disregard the
agreement : — Held, that as the agreement in
no way affected the value of the goodwill of
the business there was no obligation on the
receiver to carry it into effect, and that the
application ought to be granted. Newdigate
Colliery Co., In re; Newdegate v. The Com-
pany (81 L. J. Ch. 235; [1912] 1 Ch. 468),
distinguished. Great Cobar, Lim., In re;
Beeson v. The Company, 84 L. J. Ch. 468;
[1915] 1 Ch. 682; 113 L. T. 226; [1915]
H. B. E. 79— Warrington, J.
Receiver Appointed under Power in Deben-
ture— Right to Remuneration — Liability of
Debenture-holders.] — A condition indorsed on
debentures of a company gave a power to the
holders of the majority of the debentures to
appoint a receiver who should have power to
take possession of the property charged, to
carry on the business of the company, to sell
the property charged, and to make any
arrangements in the interest of the debenture-
holders. The condition also provided that all
moneys received by such receiver should, after
providing for the matters specified in the first
three paragraphs in clause 8 of section 24 of
the Conveyancing and Law of Property Act,
1881, and for the purposes aforesaid, be
applied in or towards satisfaction pari passu
of the debentures ; and the foregoing provi-
sions of the condition were to take effect as and
by way of variation and extension of the pro-
visions of sections 19 and 24 of that Act, which
281
COMPANY.
282
provisions so varied and extended were to be
regarded as incorporated in the condition : —
Held, that a receiver appointed under the
power was the agent of the debenture-holders
and not of the company, and that he was
entitled to maintain an action for reasonable
remuneration against the debenture-holders
who had appointed him. Vimbos, Lim., In
re (69 L. J. Ch. 209; [1900] 1 Ch. 470), and
Robinson Printing Co. v. Chic, Lim. (74 L. J.
Ch. 399; [1905] 2 Ch. 123), followed. Deyes
V. Wood, 80 L. J. K.B. 553; [1911] 1 K.B.
806 ; 104 L. T. 404 ; 18 Manson, 229— C.A.
d. Sale.
See also Vol. III. 1134, 2459.
Sale of Undertaking — Company in which
Public have an Interest.] — The Crystal
Palace Co. is not a company formed for public
purposes within the principle of Gardner v.
London, Chatham, and Dover Railway
(L. R. 2 Ch. 201). Therefore, when the com-
pany issued debenture stock giving a charge
on its undertaking and property, — Held, that
the Court had power, on the application of
holders of the debenture stock, to order a sale
of the propertv and undertaking. Saunders
V. Bevan, 107 L. T. 70; 56 S. J. 666;
28 T. L. R. 518— H.L. (E.) Affirming S. C.
in C.A., sub noni. Crystal Palace Co., In re;
Fox V. The Company.
5. Redemption.
See also Vol. III. 2460.
Principal Immediately Payable.]— Where
the principal moneys secured by debentures
have become immediately payable according to
a condition indorsed on the debentures, on the
ground that an order has been made for the
winding-up of the company, the company or
the guarantors of the loan are entitled to
redeem the securit}', and the debenture-holders
have no option to refuse payment unless the
debenture itself so provides. General Motor
Cab Co., In re (56 S. J. 573), explained. Con-
solidated Goldfields of South Africa v. Simmer
and Jack East, Lim., 82 L. J. Ch. 214;
108 L. T. 488; 20 Manson, 142; 57 S. J. 358
— -Swinfen Eady, J.
Contract by Advertisement — Breach of
Trust.] — The appellants were trustees for the
bondholders of a copper company under a
mortgage deed by which a certain sum was set
aside for the redemption or retirement of bonds
of the company, for which they were trustees.
The appellants having received $170,000 from
the copper company for the redemption of
bonds, advertised in accordance with the terms
of the mortgage deed inviting tenders, stating
amount offered, and price of bonds for sale to
them. The respondent offered bonds for
$10,000 at $82 per bond of $100. This offer
was declined, and the appellants succeeded in
obtaining bond.s for $200.000— namely. S39.400
at rates less than $80 per cent., and $160,600
at a rate exceeding $86 per cent. — costing
exactly $170,000. In an action by the respon-
dent for breach of trust, or alternatively for
breach of contract in refusing to purchase the
bonds offered for sale in response to the
advertisement inviting tenders of bonds under
the terms of the mortgage deed, — Held, that
the appellants, having acted in good faith and
in the exercise of an honest judgment and in
the interest of the bondholders as a whole, had
not been guilty of a breach of trust, and were
not bound to accept the lowest tender for a
comparatively small number of bonds.
National Trust Co. v. Whicher, 81 L. J.
P.C. 182; [1912] A.C. 377; 106 L. T. 310—
P.C.
Sale of Assets by Company — Redeeming
Debentures at Lowest Tender — Dissentients'
Rights.] — A company has no power to sell the
assets charged by its debentures and with the
proceeds to redeem such of the debentures as
are offered at the lowest price, even though
it is empowered to do so by a majority of the
debenture-holders at a meeting held in accord-
ance with the terms of the debenture trust
deed. New York Taxicab Co., In re; Seguin
V. The Company, 82 L. J. Ch. 41; [1913]
1 Ch. 1; 107 L. T. 813; 19 Manson, 389;
57 S. J. 98— Swinfen Eady, J.
6. Conversion and Exchange on Sale
OF Assets.
Conversion of Terminable Debentures into
Perpetual Debenture Stock — Arrangement
between Company and Creditors.] — On a
petition under section 120 of the Companies
(Consolidation) Act, 1908, at the instance of a
company which was being wound up, the Court
sanctioned an arrangement whereby debentures
and debenture bonds, repayable at periods of
from three to five years, were converted into
debenture stock, repayable only on the occur-
rence of certain contingencies. Shandon
Hydropathic Co., In re, [1911] S. C. 1153—
Ct. of Sess.
Conversion of Redeemable into irredeem-
able or Perpetual Debentures — Resolution by
Majority of Debenture-holders — Power of
Majority to Bind Minority.! — Where a
debenture trust deed provides that the deben-
ture-holders shall have power, exercisable by
extraordinary resolution, to sanction any
modification of the rights of the debenture-
holders against the company or against its
property whether such rights should arise-
under the debentures or under the trust deed,
a majority of the debenture-holders may, by
extraordinary resolution passed in accordance
with the terms of the trust deed, convert
redeemable debentures into irredeemable or
perpetual debentures. Northern Assurance
Co. V. Farnham United Breweries, 81 L. J.
Ch. 358; [1912] 2 Ch. 125; 106 L. T. 527;
19 Manson, 178; 56 S. J. 360; 28 T. L. R.
305— Joyce, J.
Sale of Assets — Exchange for Debenture
Stock in Purchasing Company.] — The deben-
ture stock deed of a company contained a
majority clause giving a general meeting of
the stockholders " power to agree to accept
any other property or securities instead of the
stock, and in particular any debentures or
283
COMPANY.
284
debenture stock of the company," and
" power to sanction any scheme for the recon-
struction of the company or for the amalgama-
tion of the company with any other company."
The company agreed to sell its assets to
another company, the debenture stock of the
vendor company to be exchanged for deben-
ture stock of the purchasing company, and
the agreement being conditional on its
approval by the stockholders. A resolution of
approval was passed by them : — Held, that
the proposed scheme came within the majority
clause and the trustees of the deed could pro-
perly act on it. Hutchijxson d Sons, Lim.,
In re; Thornton v. The Company, 31 T. L. E.
324— Sargant, J.
VIII. MEETINGS OF SHAEEHOLDERS.
See also VoJ. III. 1190, 2469.
Proxy — Lodgment at Office — Poll not an
Adjournment.] — Where the articles of asso-
ciation of a company require that proxies be
lodged at the office forty-eight hours before the
time fixed for holding the meeting or adjourned
meeting at which they are to be used, and at
the meeting a poll is demanded and fixed for a
later date, then proxies obtained after the
meeting cannot be used for voting on the poll.
Shaw V. Tati Concessions, Lim., 82 L. J.
Ch. 159; [1913] 1 Ch. 292: 108 L. T. 487;
20 Manson, 104; 57 S. J. 322; 29 T. L. E.
261— Swinfen Eady, J.
A poll is not an adjournment, but a continua-
tion of the meeting for voting purposes, but for
nothing else. lb.
Objections to Votes to be Made at
Meeting Only — Appointment of Proxy by
Corporation to be under its Common Seal —
Foreign Corporation having no Common Seal
— Representative of a Company — Admitting
Votes on Production of Copy of Resolution.]
— The articles of association of a company pro-
vided that no one should be entitled to act as
proxy for other shareholders unless he was
himself a shareholder, but that no objection
was to be made to the validity of any vote
except at the meeting or poll at which it was
tendered, and that every vote, whether given
personally or by proxy, not disallowed at the
meeting or poll was to be deemed valid for all
purposes. The articles also provided that the
instrument appointing a proxy should be in
writing under the hand of the appointer or his
attorney duly authorised, or, if such appointer
were a corporation, under its common seal.
At a general meeting of the company the
chairman admitted votes rendered under a
proxy to C, who was not a shareholder, and
failing him to D., who was a shareholder. No
objection was taken at the meeting to these
votes. The chairman also admitted votes
tendered by W. as the representative of
another company, under a resolution passed
pursuant to section 68 of the Companies (Con-
solidation) Act, 1908, on the prodtiction of a
copy of the resolution signed by W. as chair-
man of the other company and by its secretary.
The chairman of the meeting rejected, how-
ever, votes by proxy appointed under a power
of attorney signed by two directors of a foreign
company which had no common seal : — Held,
that the votes tendered under the proxy to C.
and D., and those tendered by W., were
rightly admitted ; but that the provision of the
articles requiring the appointment of a proxy
by a corporation to be under its common seal
was limited to English corporations, and did
not extend to foreign corporations which have
no common seal, and that these votes therefore
ought to have been admitted. Colonial Gold
Reefs, Lim. v. Free State Rand, Lim.,
83 L. J. Ch. 303; [1914] 1 Ch. 382: 110 L. T.
63; 21 Manson, 42; 58 S. J. 173; 30 T. L. E.
88— Sargant, J.
Alien Enemy Shareholder — Right of
Voting — Foreign Bank — Branch in England
— Exercise of Right on Behalf of Branch.] —
An alien enemy who is a shareholder in an
English company is not entitled, during the
war, to exercise the right of voting by employ-
ing a British subject as proxy at a meeting
of the shareholders of the company, and where
the alien enemy is a banking company with
a branch in England such right of voting is
not witliin clause 6 of the Trading with the
Enemy Proclamation No. 2, and cannot be
exercised during the war on behalf of the
branch. Rohson v. Premier Oil and Pipe
Line Co., [1915] 2 Ch. 124; 59 S. J. 475;
31 T. L. E. 420— C. A.
Decision of Sargant, J. (31 T. L. E. 385),
affirmed. lb.
Extraordinary General Meeting — Requisi-
tions for— Validity.] —The holders of 690
shares in a company, upon which shares all
calls then due had been paid, sent in requisi-
tions to the directors of the company requesting ^
them, in accordance with section 66 of the ^
Companies (Consolidation) Act, 1908, to call
an extraordinary general meeting. The issued
share capital of the company was 22,357
shares, but it was admitted that the number
of shares upon which all calls or other sums
then due had been paid did not exceed
5,094 : — Held, that the words " upon which
all calls or other sums then due have been
paid " in section 66, sub-section 1, refer to
the " issued share capital," and therefore that
the requisitions had been sent in by " the
holders of not less than one-tenth of the
issued share capital of the company upon
which all calls or other sums then due " had
been paid, and that the directors were bound
to call a meeting. For the purpose of satis-
fying the requirements of sub-section 2 of
section 66 it is not necessary that the
requisitions should be in identical form. Fruit
and Vegetable Groioers' Association v. Keke-
ivich, 81 L. J. Ch. 499; [1912] 2 Ch. 52;
! 106 L. T. 1007; 19 Manson. 206; 56 S. J.
502; 28 T. L. R. 411— Warrington, J.
Statutory Meeting — Notice — Shares — Allot-
I ment as Fully Paid — Consideration.] — The T.
I company, a private company incorporated
j under the Companies (Consolidation) Act,
1908, entered into a contract with the L.
company, under which the L. company
assigned to it an agreement for a lease of a
building site and undertook to build and
equip a theatre thereon in consideration of J
285
COMPANY.
286
9,000/., which was to be satisfied by the allot-
ment to the L. company of 36,000 fully paid
five-shilling shares in the T. company. The
L. company went into voluntary liquidation
before completing the theatre, and did not
complete it, and the landlord re-entered upon
the land, and the agreement for a lease was
thereby terminated. The liquidator of the
L. company agreed to sell to the defendants
some of these 36,000 shares, and the agreement
provided that the defendants might avoid it
if it should be found that the requirements
of the Companies (Consolidation) Act, 1908,
had in any way been infringed by the T.
company. The articles of the T. company
provided for the holding of the statutory
meeting within the statutory limit ; they also
provided that the notices convening general
meetings should state tte nature of the busi-
ness to be transacted thereat. The T. com-
pany held only one meeting which could in
point of date have been the statutory meeting,
but the notice convening it referred only to
the business of confirming a special resolution
passed at an earlier meeting. The defendants
eventually avoided the agreement to purchase
the shares. In an action brought by the
liquidator for specific pei-formance they con-
tended (inter alia) that the T. company had
infringed section 65 of the Companies (Con-
solidation) Act, 1908, by not holding a
statutory meeting, and that the building
agreement with the L. company was ultra
vires the T. company, inasmuch as it pro-
vided for the issuing of fully paid shares in
prtesenti in consideration of a contract to be
carried out in futuro, and thereby substituted
for the statutory liability of the shareholder
in respect of payment for the shares an action
sounding in damages only : — Held, that if the
only meeting which in point of date could
have been the statutory meeting was intended
to be such, it was not properly convened for
the purpose, since the notice convening it did
not state it was to be the statutory meeting,
and that the T. company never in fact held
its statutory meeting; and that, inasmuch as
it thereby failed to comply with section 65 of
the Companies (Consolidation) Act, 1908, the
defendants were justified in avoiding the con-
tract to purchase the shares. Gardner v.
Iredale, 81 L. J. Ch. 531; [1912] 1 Ch. 700;
106 L. T. 860; 19 Manson, 245— Parker, J.
Form of Notice of Special Resolution —
Extraordinary Resolution.] — It is not neces-
sary that the notice convening a meeting at
which a special resolution is to be passed
should state that such resolution is to be
proposed as an extraordinary resolution. Sub-
section 2 (a) of section 69 of the Companies
(Consolidation) Act, 1908, only refers to the
passing of the resolution, not to the calling
together of the meeting for the purpose of
passing it. Penarth Pontoon Shipway and
Ship Repairing Co.. Lim., In re, 56 S. J. 124
— Swinfen Eady, J.
Misleading Notice of.] — The defendant
company held nearly all tlie shares in a sub-
sidiary company. Four of the five directors
of the defendant company were also directors
of the subsidiary company. In 1907 the
subsidiary company increased their directors'
remuneration from 2,500L a year to 2,o00Z. a
year and a sum equal to 20 per cent, of the
net profits, after paying 10 per cent, to the
ordinary shareholders. The directors of the
defendant company exercised its voting powers
to pass the article giving this increased
remuneration without obtaining the sanction
of the shareholders of the defendant com-
pany. In 1914 the defendant company issued
notice of an extraordinary general meeting to
pass resolutions — first, ratifying the payments
which had been made to the directors of the
subsidiary company; and thirdly, to insert an
article authorising their directors, as directors
of subsidiary companies, to receive remunera-
tion without accounting for it, and to exercise
the voting power of the defendant company
as they should think fit. The notice stated
the article of the subsidiary company giving
the increased remuneration, but gave no
information as to the amount which had been
received thereunder. At the meeting, the
chairman stated that the directors' fees from
the two companies since 1881 and 1883 had
averaged 320Z. per annum for each director.
This statement was untrue. The total amount
for fees and percentages received by the
directors of the subsidiary company for the
previous seven years was 44.876L The reso-
lutions were duly passed and confirmed as
special resolutions. The plaintiff, a share-
holder of the defendant company, in an action
on behalf of himself and all other shareholders
for a declaration that these special resolutions
were not binding upon the defendant com-
pany, moved for an injunction to restrain
the directors of the subsidiary company from
acting upon them : — Held, that the notice was
misleading and was not such a satisfactory
statement of the facts as the shareholders
were entitled to, and that the plaintiff could
maintain the action without joining the com-
pany as plaintiff, and that the injunction must
be granted. Baillie v. Oriental Telephone and
Electric Co., 84 L. J. Ch. 409; [1915] 1 Ch.
503; 112 L. T. 569; 31 T. L. R. 140— C. A.
Issue of New Shares — One Person a
"Meeting."] — Where the memorandum and
articles of a company provided that no new
shares should be issued so as to rank equally
with 10,000 original preference shares unless
such issue was sanctioned by an extraordinary
resolution of the holders, and all the preference
shares passed at a separate " meeting " of
such holders, and that a modification or
variation of the rights of any class of shares
might be effected when sanctioned by an
extraordinary resolution of the holders of the
shares of such class passed as a separate
" meeting " of such holders, and all the
preference shares were held by one person, —
Held, that on the true construction of the
memorandum and articles the sole preference
shareholder could constitute a " meeting " to
consent to a modification of the rights of
preference shareholders. Sharpe v. Dawes
(46 L. J. Q.B. 104; 2 Q.B. 26) and Sanitary
Carbon Co., In re (12 L. J. N.C. 183: [1877]
W. N. 223), distinguished. East v. Bennett
Brothers, Lim., 80 li. J. Ch. 123; [1911]
287
COMPANY.
288
1 Ch. 163; 103 L. T. 826; 18 Manson, 145;
55 S. J. 92; 27 T. L. R. 103— Warrington, J.
Voting — Special Resolution.] — At an extra-
ordinary general meeting of a company,
convened to consider a proposed special reso-
lution to reduce capital, the resolution was
passed by less than the requisite statutory
majority, but the minute of meeting bore
that the chairman declared the resolution
carried : — Held, that the resolution could not
receive eii'ect notwithstanding the terms of
section 69 of the Companies (Consolidation)
Act, 1908, as it was plain on the face of the
proceedings that the resolution had not been
carried by the requisite majority. Clark it
Co., In re, [1911] S. C. 243— Ct. of Sess.
Resolutions — Mode of Putting.] — The
putting of two resolutions before an extra-
ordinary general meeting en bloc and not
separately is irregular. Blair Open Hearth
Furnace Co. v. Reigart, 108 L. T. 665;
57 S. J. 500; 29 T. L. E. 449— Eve, J.
Resolutions Carried on Show of Hands —
Opposition by Owners of Majority of Shares —
Joint Holdings — Inability to Demand Poll —
Interlocutory Injunction.] — A company's
articles provided that at general meetings
resolutions were to be decided by a numerical
majority of votes unless a poll was demanded
by three members, and that when two or
more persons were entitled to a share the one
whose name stood first on the register should
be the only one entitled to vote. The plain-
tiffs, who numbered more than three, held a
majority of shares, and they opposed certain
resolutions, which were, however, carried on
a show of hands. Owing to some of the
plaintiffs' shares being jointly held, they only
counted as two persons, and so did not amount
to the three persons necessary for the demand
of a poll. The plaintiffs brought an action to
restrain the carrying out of the resolutions,
and asked for an injunction until the trial : —
Held, that without prejudice to the question
whether the plaintiffs would be entitled to an
injunction at the trial, they should have an
interlocutory injunction. Cory v. Reindeer
Steamship. Lim., 59 S. J. 629; 31 T. L. R.
530— Sargant, J.
IX. RECONSTRUCTION.
See also Vol. III. 1238, 2478.
Classes of Shareholders — Sale to New Com-
pany for Shares — Provision for Dissentient
Shareholders.] — A scheme for reconstruction
and arrangement as between the company and
the various classes of members, which makes
due provision for the rights of dissentient
shareholders, may be sanctioned by the Court
as well under section 120 as under section 192
of the Companies (Consolidation) Act, 1908.
Canning Jarrah Timber Co., In re (69 L. J.
Ch. 416; [1900] 1 Ch. 708), and Tea Corpora-
tion, In re; Sorsbie v. Tea Corporation
(73 L. J. Ch. 57; [1904] 1 Ch. 12), followed.
General Motor Cab Co., In re (81 L. J. Ch.
505; [1913] 1 Ch. 377), distinguished. Sand-
xcell Park Colliery Co., In re, 83 L. J. Ch.
549; [1914] 1 Ch. 589; 110 L. T. 766;
21 Manson, 212; 58 S. J. 432— Astbury, J.
" Compromise or arrangement " — Sale of
Assets to New Company — Payment in Shares
of New Company — Power to Impose Scheme
i on Dissentient Shareholders — Sanction of
I Court.] — A scheme which provides that a new
company should be formed to which the whole
undertaking of an existing company is to be
sold in consideration of the discharge by the
new company of the debentures of the existing
company and the allotment to the holders of
shares in the existing company of shares in the
new company, but without making any pro-
vision for dissentient shareholders of the
existing company, is not a " compromise or
arrangement " that can be sanctioned by the
Court under section 120 of the Companies
(Consolidation) Act, 1908. Canning Jarrah
Timber Co., In re (69 L. J. Ch. 416; [1900]
1 Ch. 708), explained. General Motor Co.,
In re (No. 1), 81 L. J. Ch. 505; [1913] 1 Ch.
377: 106 L. T. 709; 19 Manson, 272;
28 T. L. R. 352— C. A.
Receiver in Debenture-holder's Action — Con-
ditional Contract for Sale — Petition by Liqui-
dator to Sanction Scheme of Arrangement —
Summons by Receiver to Approve Conditional
Contract of Sale.] — Where a company is in
liquidation and a receiver has also been
appointed in a debenture-holder's action, and
where there is before the Court both a petition
by the liquidator to sanction a scheme of
arrangement and also a summons by the
receiver to approve a conditional contract of
sale, — Held, that one order can be made on
the two applications. Durham Collieries
Electric Power Co., hi re; Power v. The
Compatiy, 57 S. J. 558 — Neville, J.
Rights of Majority against Minority — Sanc-
tion of Court.] — Where there was no mala
fides or fraud in a proposed scheme of recon-
struction of a company, nor was it a sham
or device, although the result would be that
the majority of the shareholders would obtain
control of the undertaking of the company
and compel the minority to accept a cash
payment in lieu of shares in a new company
to which that undertaking was to be sold,
it was held that the scheme was one that
ought not to be interfered with by the Court.
North-West Transportation Co. v. Beatty
(56 L. J. P.O. 102: 12 App. Cas. 589) con-
sidered and applied. Castello v. London
General Omnibus Co., 107 L. T. 575— C.A.
Arrangement — Voluntary Liquidation —
Sanction of Court — Form of Order.] — When
it is desired to obtain the sanction of the
Court to a scheme of arrangement under
section 120 of the Companies Consolidation
Act, 1908, the practice is to obtain upon
originating summons an order convening the
requisite meeting or meetings to consider the
scheme; if the necessary majority is obtained,
the sanction of the Court may then be sought
on petition. Form of order, in the case of a
company in voluntary liquidation, sanctioning
a composition with creditors. Clarke d Co.,
In re, [1912] 1 Ir. R. 24— M.E.
289
COMPANY.
290
Deceased Shareholder — " Member " — Rights
of Executors not Registered as Members. 1 —
The term " member "' in section 192 of the
Companies (Consolidation) Act, 1908, includes
the estate of a deceased member; and, where
due notice of the death and probate is given
to the company, the executors, though not
registered as members, are entitled to execute
the right of dissent from a proposed recon-
struction scheme which is given to members
under sub-section 3. Llewellyn v. Kasintoe
Rubber Estates, 84 L. J. Ch. 70; [1914]
2 Ch. 670; 112 L. T. 676; 21 Manson, 349;
58 S. J. 808; 30 T. L. E. 683— C.A.
Articles of Association — Effect of.] — The
articles of association of a company provided
that a " person entitled to a share in conse-
quence of the death or bankruptcy of a
member shall not be entitled to . . . exercise
the rights and privileges of a member, unless
and until he shall have elected to be and shall
have been registered as the holder of the
share " : — Held, that the article in question
did not interfere with the rights of deceased
shareholders as such, but only with the rights
of executors and others in a representative
capacity to exercise the privileges of members
in their own behalf. lb.
James v. Buena Ventura Xitrate Grounds
Syndicate (65 L. J. Ch. 284 ; [1896] 1 Ch. 456)
applied. Bowling and Wilby. In re (64 L. J.
Ch. 427; [1695] 1 Ch. 663), distinguished by
Astbury, J. lb.
X. EETURNS TO EEGISTRAE OF
COMPANIES.
Annual Returns — Summary in Form of
Balance Sheet — Liabilities and Assets — Values
of "Fixed assets" — Goodwill, Trade Marks,
Machinery, Furniture, and Fixtures Included
in one Item.] — The statement in the form of .a
balance sheet forwarded by the respondents,
a public company, to the Eegistrar of
Companies, in purported compliance with
section 26, sub-section 3 of the Companies
(Consolidation) Act, 1908, contained under
the heading " Assets " the following entry :
" Goodwill, trade marks, machinerv, furni-
ture and fixtures 100,007Z. 16s. 5d.— Goodwill
and trade marks at the sum at which they
were taken over by the company. Machinery,
furniture and fixtures at cost, less deprecia-
tion " : — Held, that the statement in this
form was defective, and did not comply with
the requirements of section 26, sub-section 3,
as it did not state separately the value of the
goodwill and trade marks and the value of
the machinery, furniture, and fixtures. Gallo-
way V. Schill, Seebohm £ Co., 81 L. J. K.B.
852; [1912] 2 K.B. 354; 106 L. T. 875;
76 J. P. 298; 19 Manson, 199; 28 T. L. R.
400— D.
Per Lord Alverstone, C.J. : It was not a
compliance with the requirements of the
section to include in one item assets part
of which was valued on one principle, and
the remainder was valued on a different prin-
ciple. Per Pickford, J. : It was not a com-
pliancf witli the requirements of the section
to include in one item tangible and intangible
assets. 76.
" Private company " — Articles of Associa-
tion— Provision for Limitation of Number of
Members to Fifty — Number of Members in
Fact Exceeding Fifty — Failure to Forward to
Registrar Audited Balance Sheet.] — Under
section 121 of the Companies (Consolidation)
Act, 1908, a " private company " is a company
" which by its articles " {inter alia) limits
the number of its members (exclusive of
persons who are in the employment of the
company) to fifty. Such a company does not
cease to be a " private company," merely
because the number of its members in fact
exceeds fifty, so as to render the company
liable to a penalty for not forwarding to the
Eegistrar of Companies a statement in the
form of a balance sheet audited by the com-
pany's auditors, as is required by section 26,
sub-section 3, to be done by all companies
except private companies. Park v. Royalties
Syndicate, Lim., 81 L. J. K.B. 313; [1912]
1 K.B. 330; 106 L. T. 185; 76 J. P. 93:
19 Manson, 97— D.
Restoration of Name to Register.] — Circum-
stances in which the Court made an order
restoring the name of a company to the register
on the solicitors for the petitioner undertaking
forthwith to cause a petition for its winding-up
to be presented. Langlaagte Proprietary Co.,
In re, 28 T. L. E. 529— Swinfen Eady, J.
XI. STOCKS AND SHAEES.
1. Eights of Shareholders.
See also Vol. III. 12-56, 2488.
Stock — Issue by Municipal Corporation —
" Redeemable."] — By the Edinburgh Corpora-
tion Stock Act, 1894, the Corporation of
Edinburgh, where they had any unexhausted
statutory borrowing power, were authorised
to exercise such power by the creation of
redeemable stock ; and by the Edinburgh
Improvement and Tramways Act, 1896, the
corporation, in addition to the powers contained
in the Act of 1894, were authorised to create
and issue a new class of stock to be " redeem-
able at the option of the Corporation at one
and the same period to be fixed by the
Corporation but not exceeding sixty years from
the first issue of such stock." In pursuance
of this power the corporation issued stock tn
a period of thirty years from May 15, 1897 : —
Held, that the corporation were not bound, on
the application of the holders, to redeem the
stock immediately on the expiration of that
period, but had merely an option to do so.
Edinburgh Corporation v. British Linen Bank,
82 L. J. P.C. 25; [1913] A.C. 133; [1913]
S. C. (H.L.) 4; 107 L. T. 567; 29 T. L. E.
25— H.L. (Sc.)
Decision of the Extra Division of the Court
of Session ([1912] S. C. 139) reversed. 76.
Sale of Shares — Warranty — Breach — War-
ranty or Representation.] — The respondent
asked the local manager of the appellants, a
firm of rubber merchants, who had under-
written a large number of shares in a rubber
and produce company then in the course of
formation, whether his firm were bringing out
10
^291
COMPANY,
292
a rubber company. He replied that they were.
'The respondent then asked him whether the
company was all right. The manager replied
that his firm were bringing it out, to which
'the respondent rejoined that that was good
enough for him. In answer to further
enquiries the manager told the respondent that
lie could let him have 5,000 shares at a certain
premium. The respondent agreed to take the
•shares, which were subsequently allotted to
"him. The shares having fallen in value, the
respondent brought an action against the firm
for fraudulent misrepresentation and for breach
of warranty, the alleged warranty being that
the company was a rubber company. The
jury found that the company could not be
properly described as a rubber company ; that
there was no fraudulent misrepresentation ;
but that the manager had given a warranty
as alleged : — Held, that there was no evidence
upon which the jury could properly find that
the appellants gave any such warranty as
alleged. Heilbut, Symons d- Co. v. Buckleton,
82 L. J. K.B. 245 ; [1913] A.C. 30 ; 107 L. T.
769; 20 Manson, 54— H.L. (E.)
The dictum of Baylev, J., in Cave v. Cole-
7nan (7 L. J. (o.s.) K.B. 25; 3 Man. & Ey. 2),
that a representation made verbally during the
sale of a horse, being made in the course of
dealing, and before the bargain was com-
plete, amounted to a warranty, and that of
A. L. Smith, M.K., in De Lassalle v. Guild-
ford (70 L. J. K.B. 533, at p. 536; [1901]
2 K.B. 215, at p. 221), that in determining
whether or not a representation was intended
to amount to a warranty " a decisive test is
whether the vendor assumes to assert a fact
of which the buyer is ignorant, or merely
states an opinion or judgment upon a matter
of which the vendor has no special know-
ledge, and on which the buyer may be expected
also to have an opinion and to exercise his
judgment," cannot be supported — per Lord
Moulton ; the Lord Chancellor (Viscount
Haldane) concurring. lb.
Agreement to Sell Shares — Construction —
" Timber."] — The respondent agreed to sell to
the appellants at an agreed price shares in a
saw mills company which had extensive rights
of cutting timber over a large area of ground
for long periods of time. The agreement
contained a provision to the eifect that the
vendor was to give a satisfactory guarantee to
the purchasers " that the quantity of timber
on the different tracts of land as shewn by the
statement . . . attached hereto ... is true
and accurate " ; and in the event of the
quantity of timber on the said various tracts
failing, on verification, to reach the quantity
represented in the attached statement, the
vendor was to repay to the purchasers the
amount of shortage : — Held, that the word
" timber " must be held to mean all timber
trees growing on the land which were reason-
ably fit for use in such a business as that
carried on by the company, and should not
be restricted to such trees as were at the
date of the agreement capable of being felled
and sold at a profit at the then current prices.
Swift V. David, 107 L. T. 71— P. C.
2. Agreement to Take.
a. Underwriting Agreements.
See also Vol. III. 1334, 2494.
Prohibition of Payment of Commission —
Private Company.] — The prohibition in sec-
tion 89, sub-section 2 of the Companies
(Consolidation) Act, 1908, of payment of
commission by a company to any person in
consideration of his subscribing or procuring
subscriptions for shares in the company (except
in the cases enumerated in sub-section 1),
applies to private as well as to public com-
panies. Dominion of Canada General Trading
and Investment Syndicate v. Brigstocke,
80 L. J. K.B. 1344; [1911] 2 K.B. 648;
105 L. T. 894; 18 Manson, 369; 55 S. J. 633;
27 T. L. E. 508— D.
Underwriting Letter — Clause Allowing
Variation — Material Variations in Prospectus
as Drafted and as Settled and Published —
Alteration of Risk — Discharge of Under-
writers.^ — The defendants signed an under-
writing letter undertaking to apply for five
hundred shares in a company which was being
promoted. By clause 8 of the letter the
obligation thereunder was to hold good
notwithstanding any variation between the
draft prospectus submitted to the defendants
and the prospectus as finally settled and pub-
lished. The draft prospectus stated that the
minimum subscription on which the directors
might proceed to allotment was 15,000/., which
had been underwritten at a commission of
5 per cent, thereon, and an overriding com-
mission of 2i per cent., payable by the
company. The prospectus as finally settled
and published stated that the minimum sub-
scription was fixed by the articles of association
at the nominal sum of lOOZ., and that as 5,000
shares had been underwritten the directors
would proceed to allotment, and it was con-
siderably varied or altered from the draft
prospectus in other respects : — Held, that, not-
withstanding the provisions of clause 8 of the
underwriting letter, the defendants were not
bound to take up and pay for the shares, as
the alterations made in the prospectus as
finally published had created an essentially
different risk from that which the defendants
had undertaken. Warner International and
Overseas Engineering Co. v. Kilburn, Brown
<t Co., 84 L. J. K.B. 365; 110 L. T. 456;
30 T. L. E. 284— C.A.
Decision of Pickford, J. (29 T. L. E. 322),
reversed. 7b.
Allotment of Shares by way of Commis-
sion— Death of Promoter before Completion of
Contract — Personal Services — Validity of
Contract.! — By an agreement dated Novem-
ber 30, 1912, a promoter agreed to form an
English company to acquire the English
trading rights of a French company and to
place the ordinary shares of the English
company at par by three fixed dates, in con-
sideration whereof the French company agreed
to sell these rights to the English company
in terms of an agreed draft, and that the
promoter should be at liberty to stipulate for
293
COMPANY.
294
the issue to him of 5 per cent, of the ordinary
shares of the English company fully paid.
The capital of the English company was to be
105,000/. divided into 100,000 ordinary shares
of 11. each and 100,000 participation shares of
Is. each. By an agreement of December 9,
1912, the promoter agreed with the English
company to procure the French company to
sell the said rights to the English company
in the terms of the agreed draft, in considera-
tion of his being allotted 5,000 ordinary shares
in the English company fully paid. By a
second agreement of December 9, 1912, the
French company agreed to sell the said rights
to the English company in the terms of the
agreed draft in consideration of receiving the
100,000 participation shares fully paid and
10 per cent, of the ordinary shares as and when
subscribed, and upon the express condition
that the ordinary shares were subscribed by
the dates specified in the agreement of Novem-
ber 30, 1912. The English company was
incorporated on December 10, 1912, with the
above-mentioned capital and with the object
of carrying out the two agreements of Decem-
ber 9, 1912, and by its articles was empowered
to pay a commission not exceeding 10 per cent.
to any person procuring subscriptions for its
ordinary shares. The prospectus of the same
date stated, " No underwriting commission has
been or will be paid." It also stated the
consideration which the French company were
to receive and that the promoter was to be
allotted 5,000 ordinary shares fully paid. The
promoter placed the first lot and part of the
second lot, but died in February, 1913, without
having placed the remainder. The French
company claimed to prove against his estate in
bankruptcy for damages for breach of the
agreement of November 30, 1912 : — Held, that
the agreement was not for personal services
by the promoter and was enforceable against
his estate. Held, also, that the three agree-
ments did not form one tripartite agreement.
Semble, that if they did they did not contra-
vene section 89 of the Companies (Consolida-
tion) Act, 1908. Worthington, In re; Path6
Freres, ex parte, 83 L. J. K.B. 885; [1914]
2 K.B. 299; 110 L. T. 599; 21 Manson, 119—
C.A. Affirming, 58 S. J. 252— Horridge, J.
Liability of Executor — Remoteness of
Damage. 1 — The liability on a contract to apply
for shares under an underwriting agreement
passes to the executors of the person con-
tracting, as the contract is not one involving
personal skill, and if the person contracting
had notice that the object of the other party
to the contract was that he might be enabled
to perform another underwriting agreement
the damages are not too remote to be recover-
able. Warner Enqiyieering Co. v. Brennan,
30 T. L. E. 191— t).
b. Payment.
See also Vol III. 1310, 2497.
Shares not Paid for in Cash — Contract in
"Writing — Leave to File Memorandum with
Registrar.] — The Court gave leave to file with
the Registrar of Joint-Stock Companies a
memorandum in writing specifying the con-
sideration for which the seven signatories'
shares in a company were issued in 1889, and
ordered that on such memorandum being filed
it should, in relation to such shares, operate
as if it were a sufficient contract in writing
within the meaning of section 25 of the Com-
panies Act, 1867, and had been duly filed
before the issue of such shares. Wilkinson
Sword Co., In re, 57 S. J. 340; 29 T. L. R.
242— Swinfen Eady, J.
Payment in Advance of Calls — Loans — No
Power to Repay.] — A company was authorised
by its articles of association to receive from
any member willing to advance the same all
or any part of the moneys due upon his shares
beyond the sums called for, and to pay interest
thereon. The company issued ordinary shares
on several occasions, on each issue the share-
holders being given the option of paying the
balance due on their respective shares in anti-
cipation of calls, such balance to bear interest
at 4 per cent. Some of the shareholders
exercised this option : — Held, that the moneys
so paid in advance of calls were not to be
regarded as a loan to the company, and could
not be repaid to the shareholders by the
company. London and Northern Steamship
Co. V. Farmer, 111 L. T. 204; 58 S. J. 594—
Joyce, J.
Allotment as Fully Paid — Consideration.] —
There is no objection to an agreement by a
limited company that a debt which it presently
owes shall be satisfied by the allotment of
fully paid shares of the same nominal amount.
If a building agreement between two com-
panies can be read as a contract to build a
theatre in consideration of 9,000/. payable
upon the sealing of the agreement, with a
provision that the 9,000/. should be satisfied
by the issue of fully paid shares to that
amount, it will be valid. Gardner v. Iredale,
81 L. J. Ch. 531; [1912] 1 Ch. 700; 106 L. T.
860; 19 Manson, 245— Parker, J.
3. Rescission of Agreement.
Misrepresentation by Director — Liability of
Company for Misrepresentation.] — In an
action by the plaintiff company for a call on
5,000 shares, the defendant denied liability,
and counterclaimed a rescission of her contract
to take shares and a return of the sum she
had paid on her application for shares and
on their allotment to her. In answer to
questions left to them the jury found — first,
that the defendant was induced to apply for
shares by representations fraudulently made
by one L., a director of the plaintiff company;
secondly, that the representations were made
both before and after the company had been
incorporated and L. had become a director;
and thirdly, that they were made for the
purposes of the company and in its supposed
interests. It appeared that after the forma-
tion of the company all the interested parties
— directors and signatories — well knew that
L. was continuing what he had been doing
previously — namely, endeavouring to raise
money on behalf of the company : — Held
(Kennedy, L.J., dissenting), that in these
circumstances L/. was the agent of the com-
295
COMPANY.
296
pany, that the company was bound by his
acts, and that the defendant was entitled to
judgment on the claim and counterclaim.
Hilo Manufacturing Co. v. Williamson,
28 T. L. E. 164— C. A.
Unpaid Calls — Notice to Forfeit Shares —
Practice — Interim Injunction to Restrain
Forfeiture."! — Where the plaintiff in an action
to rescind a contract to take shares in a
company receives notice from the company
that his shares are liable to be foi-feited if
a call in respect of them is not paid, he is
entitled to an interim injunction until the
trial of the action to restrain the company
from forfeiting tlie shares. Ripley v. Paper
Bottle Co. (57 L. J. Ch. 327) overruled.
Jones V. Pacaya Rubber and Produce Co.,
80 L. J. K.B. 155; [1911] 1 K.B. 455;
104 L. T. 446; 18 Manson, 139— C.A.
4. Issue.
See also Vol. III. 1390, 2507.
Sale of Concession to Company — Payment
by Fully Paid-up Shares of Issued Capital
and Agreement to Allot Proportion of Future
Issue of Shares as Fully Paid up — Validity.]
— A limited company cannot for a fixed
present consideration validly contract that an
indefinite amount of future share capital shall
from time to time be issued upon the terms
that all liability thereon for calls shall be
at once extinguished without any contem-
poraneous payment by the allottees. Hong
Kong and China Gas Co. v. Glen, 83 L. J.
Ch. 561; [1914] 1 Ch. 527; 110 L. T. 859;
21 Manson, 242; 58 S. J. 380 ; 30 T. L. E. 339
— Sargant, J.
A company, registered under the Joint-
Stock Companies Act, 1856, in consideration
of receiving a concession for supplying gas,
contracted in 1862 to allot to the vendor 400
shares of 101. each of the company's capital
and to provide 4,000/. to be immediately
applied in paying up the 400 shares in full.
It further agreed that if and whenever the
company should increase its capital the com-
pany would allot to the vendor, his executors,
administrators, or assigns, such further number
of shares as should be equal to one fifth part
of the increased capital so from time to time
actually paid up, and would pay to the vendor
or his executors, administrators, or assigns, a
sum equal to the nominal amount of the shares
so from time to time allotted to him or them,
which sum or sums so paid should be im-
mediately applied in paying up in full the
shares so allotted. In an action raising the
question whether such part of the agreement
as referred to increases of capital was binding
upon the company, — Held, that the agreement
was valid in so far as it created an obligation
to allot to the vendor, his executors, adminis-
trators, or assigns, one-fifth of the increased
capital from time to time of the company,
but that it was void, as being contrary to the
requirements of the Joint-Stock Companies
Act, 1856, in so far as it purported to relieve
the allottee or allottees from liability to pay
up all or any part of the nominal amount of
such share capital. Wragg, Lim., In re
(66 L. J. Ch. 419; [1897] 1 Ch. 796),
considered and distinguished. lb.
Issue to "company or to its nominees" —
Exercise of Option.] — A company sold its
business, and all its assets, except uncalled
capital, to another company, and the latter
company agreed to issue to the former or to
its nominees certain shares which were to be
in a precisely corresponding position as the
shares of the selling company in respect of
being fully paid or of having an uncalled
liability. The purchasing company purported
to issue the shares, on most of which there
was a large liability, to the selling company
without giving it an opportunity of naming
any nominees : — Held, that the allotment of
the shares in these circumstances was not
warranted. National Standard Life Assurance
Corporation, In re, 27 T. L. E. 271 — Swinfen
Eady, J.
Power to Convert Shares into Stock — Direct
Issue of Stock — Issue of Stock at a Discount —
Reduction of Rate of Interest on Preference
Shares — Issue of Bonus Stock to Compensate
for Reduction — Validity of Issues.] — A com-
pany, v.hich had power to convert its paid-up
shares into stock, created new fully paid
stock that had not thus been converted from
shares, and issued it directly for equivalent
valuable consideration to a certain class of
its members. To another class of its members
it issued stock directly, only 50 per cent, of
which was paid up. It also, as part of a
scheme for the re-adjustment of its capital,
issued directly a certain amount of new fully
paid-up stock as a bonus to certain of its
preference shareholders in order to compensate
them for the loss that they would otherwise
have incurred by the reduction of the former
rate of interest on their preference shares.
A considerable period (amounting in the case
of the 50 per cent, paid-up stock to at least
twelve years) had elapsed since the commis-
sion of these irregularities, and dividends had
been paid on all the various kinds of stock.
The company was afterwards voluntarily
wound up, and a sum of money remained for
division among its members after the payment
of all its creditors : — Held, that the direct
issue for equivalent valuable consideration of
new fully paid-up stock, though irregular in
form, was substantially the same as a prior
issue of fully paid-up shares and their subse-
quent conversion into stock ; and that this
irregularity had been waived by lapse of time,
so that the stock was now entitled to rank
in the distribution of assets exactly as though
it had been first issued as shares and then
converted. Held, however, that the issue of
the 50 per cent, paid-up stock was ultra vires
the company, and thus wholly invalid, and
that its holders could now, accordingly,
neither be called on to contribute the remain-
ing 50 per cent., nor share in the distribution
of the assets of the company. Held also,
that its holders could not now claim as
creditors in the winding-up for the return
of the money that they had actually paid,
inasmuch as any claim that they might other-
wise have had was now barred by the Statute
of Limitations. Home and Foreign Invest-
297
COMPANY.
298
mettt and Agency Corporation, In re, 81 L. J.
Ch. 364; [1912] 1 Ch. 72; 106 L. T. 259;
19 Manson, 188; 56 S. J. 124— Swinfen
Eady, J.
Semble, whether it would not anyhow be
now too late for them to assert any such claim
(whatever might otherwise be its validity),
having reference to the fact that the claims
of creditors had already been dealt with in
the winding-up. lb.
Held, further, that the issue of the bonus
stock was wholly ultra vires the company,
and that its holders were now neither liable
to be called upon to pay for it, nor entitled
to share in the distribution of assets, on
the footing that they held a corresponding
number of shares in the company. lb.
Issue of Shares to Directors at a Price Below
their True Value — Resolution of the Company
— Right of Directors to Yote.^ — By a resolu-
tion passed at an extraordinary general
meeting of the company, it was resolved that
certain unissued shares should be issued to
the directors at par, though the true value of
the shares was much greater. The directors
held a majority of the shares in the company,
and the resolution was carried by their votes :
— Held, that, although the value of the portion
of the assets of the minority was decreased
and the value of the portion of the assets of
the majority was increased by an amount
greater than the sum paid for the new shares,
the resolution was binding on the minority
and could not be set aside. Vitig v. Robertson
d Woodcock, Lim., 56 S. J. 412—
Warrington, J.
Allotment of Shares at a Discount — Certi-
ficate Stating that Shares Fully Paid."— The
partners in a foundry, with the object of
forming a syndicate to acquire the business,
obtained deposits of sums of money from a
number of persons. The project of forming
the syndicate having failed, the partners
floated a limited company, proposed to the
depositors that their deposits should be applied
in taking shares, and offered to each of them
a number of shares in proportion to. but of
greater face value than, the amount of his
deposit. The company having gone into
liquidation, one of the depositors who had
been allotted shares and had received from
the company share certificates which stated
that the shares allotted to him were fully
paid, though in fact they were not, was sued
by the liquidators for the price of his shares : —
Held, that as the defender had accepted the
shares in bona fide reliance on the statements
in the certificates that they were fully paid,
the company was barred from maintaining
that they were not fullv paid. Penang
Foundry 'Co. v. Gardiner, [1913] S. C. 1203
— Ct. of Sess.
Irregular Issue.] — (1) The irregularity com-
mitted by a company in issuing fully paid
6tock without first issuing shares is an
irregularity which docs not affect the real
substance of the transaction, and will not
in equity be held to avoid the transaction,
but can be ignored, and the stock will accord-
ingly be deemed to have been properly issued.
(2) A company in certain circumstances has
power to convert its shares into stock. (3) The
issue of bonus shares being wholly ultra vires
in this case such shares were treated as
non-existent, and the holders thereof were
accordingly neither liable to pay calls thereon
nor entitled to rank as creditors against the
; company. Home and Foreign Investment and
i .igency Co., In re, 56 S. J. 124 — Swinfen
i Eady, J.
5. Calls.
See also Vol. III. 1398, 2510.
i
I Making Calls on Certain Members Exclu-
' sively of Others — Validity — Difficulty of
Recovering Previous Calls — Implied Equality
between Members.] — There is prima facie an
implied condition of equality between share-
■ holders in a company, and it is priyna facie
■ entirely improper for directors to make a call
on part of a class of shareholders without
: making a similar call on all the members of
i that class. Preston \. Guyon or Grand Collier
i Dock Co. (10 L. J. Ch. 73; 11 Sim. 327)
I followed. Galloway v. Halle Concerts Society,
84 L. J. Ch. 723; [19151 2 Ch. 233; 59 S. J.
I 613; 31 T. L. R. 469— Slrgant, J.
j Even if under the articles of association calls
[ can be so made, the power is exercisable only
in a proper case : and the fact that the mem-
! bers in question have been dilatory in paying
■ previous calls, and have caused the company
j trouble and expense in enforcing them, is not
a sufficient reason. lb.
Unpaid Calls — Winding-up — Bank Overdraft
of Company — Director's Personal Guarantee —
Payments under Guarantee — Satisfaction of
I Future Calls— Set-off.] —The director of a
company agreed to obtain an overdraft from
I a bank, in favour of the company, upon his
! personal security. The board passed a reso-
I lution that any payments made by the direc-
! tor under his guarantee might be treated by
I him as payments in advance of any future
! calls upon his shares. The company going
I into liquidation, the director paid the amount
of the overdraft : — Held, that a claim by the
director to deduct the payment made by him
from calls against him made by the liquidator
was indistinguishable from a claim to set off
debts against calls, and was inadmissible.
Paraguassu Steam Tramroad Co., In re;
Black d- Co.'s Case (42 L. J. Ch. 404; L. E.
8 Ch. 254), discussed and followed. Law Car
and General Insurance Corporation, In re
{No. 1), 81 L. J. Ch. 218; [1912] 1 Ch. 405;
106 L. T. 180; 19 Manson, 152; 56 S. J. 273
— Neville, J.
6. Preference Shares.
See also Vol. III. 1432, 2515.
Right to Participate in Profits — Articles of
Association — Construction." — The articles of
association of tlie respondent company pro-
vided that " subject to any priorities which
may be given upon the issue of any new
shares, the profits of the company available
for distribution shall be distributed as divi-
dend among the members in accordance with
299
COMPANY.
300
the amounts paid on the shares held by them
respectively." In accordance with a power
given by the articles of association fully paid
preference shares were issued entitled to a
cumulative preference dividend at the rate of
10 per cent., to rank both as regards capital
and dividend in priority to the other shares.
In an action brought by a preference share-
holder for a declaration that the" preference
shares were entitled to rank for dividend pari
passu with the ordinary shares in the distribu-
tion of any profits of the company, after
providing for a cumulative dividend of 10 per
cent, on the ordinary shares, — Held, that upon
the true construction of the articles of associa-
tion the preference shareholders were not
entitled to anything beyond a cumulative
dividend of 10 per cent. Will v. United
Lankat Plantations Co.., 83 L. J. Ch. 195;
[1914] A.C. 11; 109 L. T. 754; 21 Manson,
24; 58 S. J. 29; 30 T. L. R. 37— H.L. (E.)
Judgment of the Court of Appeal (81 L. J.
Ch. 718; [1912] 2 Ch. 571) affirmed. lb.
Uncapitalised Surplus — Distribution as
between Preference and Ordinary Shares after
Return of Paid-up Capital.] — The express gift
or attachment to preference shares, on their
creation, of preferential rights, whether in
respect of dividend or return of capital, is
prima facie a definition of the whole of their
rights in these respects, and negatives any
further or other right to which, but for the
specified rights, they would have been entitled.
The canon of construction applied in Will v.
United La^ikat Plantations Co. (81 L. J. Ch.
718; [1912] 2 Ch. 571) to the rights of pre-
ference shares with regard to dividend applied
to the rights of such shares in a winding-up.
Espuela Land and Cattle Co., In re (78 L. J.
Ch. 729; [1909] 2 Ch. 187), discussed and
distinguished. National Telcphoixe Co., In re,
83 L. J. Ch. 552; [1914] I Ch. 755 ; 109 L. T.
389; 21 Manson, 217; 58 S. J. 12; 29 T. L. R.
682— Sargant, J.
7. Certificate.
See also Vol. III. 1441, 2517.
Estoppel.] — A partnership applied to a
limited company for the allotment to them
of a thousand shares, and forwarded a cheque
in satisfaction of all existing and future calls
in respect of these shares. This cheque,
however, was wrongly credited in the books of
the company, without the knowledge and
consent of the partnership, in part payment
of four thousand shares allotted to a promoter
of the company. Subsequently a member of
the partnership was elected a director of the
company ; and after his election a certificate
for a thousand fully paid-up shares was issued
to the partnership. This certificate was signed
by the director who was also a member of the
partnership ; and the numbers of the shares
comprised in this certificate were identical
with the numbers of one thousand out of the
four thousand shares already allotted (as
partly paid up) to the promoter of the com-
pany. Ultimately these last thousand shares
were transferred by the promoter to the part-
nership. These particular thousand shares
were entered on the register of the company
as being only partly paid up. The company
having been wound up, and the partnership
having been placed on its list of contributories
as the owners of one thousand shares only
partly paid up, — Held, that the company was
estopped by the certificate issued to the part-
nership (in which the shares were described
as being fully paid up) from now setting up
that the shares were not in fact fully paid up ;
and this in spite of the facts that one of the
directors who signed the certificate was also a
member of the partnership ; that (had he
investigated the books of the company) he
might have discovered the actual facts of the
case, and that the partnership had subse-
quently accepted from the promoter the
transfer of the thousand shares in question.
Coasters, Lim., In re, 80 L. J. Ch. 89; [1911]
1 Ch. 86; 103 L. T. 632; 18 Manson, 133—
Neville, J.
" Default or unnecessary delay " in Regis-
tering Transfer — Company on Eve of Liqui-
dation.] — A holder of shares in a limited
company executed a transfer of his shares,
and forwarded it to the company with a
request that it should be registered. The
transfer was received and acknowledged by
the company two days afterwards. On the
day on which the transfer was dispatched the
company sent a notice to the transferor inti-
mating that a general meeting of the company
was to be held ten days later for the purpose
of considering a resolution that the company
should be wound up in respect that by reason
of its liabilities it was unable to continue its
business. At the general meeting it was
resolved that the company should be wound
up, and as the directors had not removed the
shareholder's name from the register his name
was included by the liquidator in the list of
contributories. The shareholder having pre-
sented a petition under section 32 of the
Companies Act, 1908, for rectification of the
register by removal of his name therefrom, and
also for removal of his name from the list of
contributories, the Court refused the petition,
holding that the directors had not been guilty
of default or unnecessary delay in refraining
from removing his name from the register.
Dodds V. Cosmopolitan Insurance Corporation,
[1915] S. C. 992— Ct. of Sess.
Opinions expressed that, in the circum-
stances, the directors would have committed
a grave breach of duty if they had removed
the petitioner's name from the register. lb.
8. Dividends.
See also Vol. III. 1452, 2521.
Different Classes of Shareholders— Different
Maximum Rates — Making up Deficiencies of
Previous Dividends — Preserving Proportions of
Rates.] — Section 75 of the Waterworks
Clauses Act, 1847, and the other sections
following it and relating to the payment of
dividends, have reference to the maximum
amount which a company may distribute in
dividend, and have no reference to the rights
of shareholders inter se. Weymouth Water-
works Co. V. Coode, 81 L. J. Ch. 11; [1911]
301
COMPANY.
302
2 Ch. 520; 104 L. T. 587; 18 Manson, 385—
Parker, J.
A waterworks company was incorporated by
Acts of 1797 and 1855, the later Act incor-
porating the Waterworks Clauses Act, 1847,
and authorising the issue of a capital of
40,000i. The Act did not prescribe any
ma,ximum rate of dividend. By an Act of
1897 the company was authorised to raise
additional capital to the amount of 6O,00OL
The Act provided that, except as otherwise
in it provided, the new capital and its holders
were to be subject and entitled to the same
liabilities, rights, and privileges as if it were
part of the existing capital ; but the Act con-
tained a provision limiting the dividend on the
new capital to 5 per cent, per annum unless
a larger dividend should at any fime be
necessary to make up deficiencies of previous
dividends. There were such deficiencies on
both classes of capital, and an anticipated
annual surplus available towards making them
up : — Held, that in making up deficiencies
the company must preserve between the total
amounts paid by way of back dividends to the
holders of the two classes of capital the pro-
portion of 10 per cent, and 5 per cent, pre-
scribed by section 75 of the Waterworks
Clauses Act, 1847, and the Act of 1897, as
the maximum dividends on the two classes
respectivelv, until all the arrears were wiped
off. lb.
Bonus Dividend out of Reserve Fund — Issue
of New Shares — Option to Take New Shares or
Retain Dividend — Capital or Income — Inten-
tion of Company.] — A limited company distri-
buted its reserve fund, consisting of undivided
profits, amongst its shareholders by means of
a bonus dividend. The shareholders had the
option of retaining the dividend or applying it
in the purchase of new shares of the company.
The intention of the company was, however,
that the dividend should be applied in taking
up the new shares, and should not be retained.
Trustees had trust moneys invested in the
company. They had no power to invest in the
new shares, but they applied their dividend in
purchasing them pending a decision as to
whether, as between tenant for life and
remainderman, it was capital or income : —
Held, that the bonus dividend was capital, the
intention of the company being the deciding
factor, notwithstanding the option given to
the shareholders. Held, further, that, as
between tenant for life and remainderman,
trustee shareholders have no option, but must
take the greatest benefit offered by the com-
pany. Bouch V. Sproule (56 L. J. Ch. 1037;
12 App. Cas. 385) followed. Evans, In re;
Jones V. Evans, 82 L. J. Ch. 12; [1913]
1 Ch. 23; 107 L. T. 604; 19 Manson, 397;
57 S. J. 60— Neville, J.
9. FoRrElTURE.
See also Vol. III. 1469, 2-526.
Non-payment of Calls — Forfeiture — Com-
plaining Shareholder Himself Party to
Forfeiture— Lapse of Time.-- A shareholder
who is a director and present at and party
to proceedings by which his shares were
declared to be forfeited for non-payment of
calls cannot after the lapse of several years
dispute the validity of the forfeiture, or be
heard to complain of the informality of notice
or other irregularity connected with the for-
feiture. Jones V. North Vancouver Land and
Improvement Co., 79 L. J. P.C. 89;
[1910] A.C. 317; 102 L. T. 377; 17 Manson,
349— P.C.
Interim Injunction to Restrain Forfeiture.]
— See Jones v. Pacaya Rubber and Produce
Co., ante, col. 295.
10. Lien of Company.
See also Vol. III. 1535.
" Holder " of Shares — Person Owning Right
in Shares, but not on Register.] — The articles
of association of a limited company stated
that the company should have a lien on shares
for debts due to it by " the holder ' ' of the
shares. A shareholder, in security for debts
due by him to two banks, transferred to
nominees of the banks certain shares of which
he was the registered holder, and they were
registered in the names of the banks'
nominees ; and he also purchased certain other
shares and registered them in the names of
the same nominees. After the shareholder's
death his estates were sequestrated. The
banks, having recovered payment of the debts
due to them from other securities, were
prepared to transfer the shares in question to
the trustee in the sequestration, whereupon
the company claimed a lien over the shares
in respect of a debt due to it by the deceased :
— Held, that " holder " in the articles of asso-
ciation meant "registered holder"; and, as
the deceased was not the registered holder of
the shares, that the company had no lien over
them for his debt. PauVs Trustee v. Justice,
[1912] S. C. 1303— Ct. of Sess.
11. Surrender.
See also Vol. III. 1484, 2528.
Surrender of Fully Paid Shares — Terms as
to Re-issue — Issue of New Shares in Ex-
change.]— A company can accept, on terms
which permit of their being re-issued, a sur-
render of fully paid shares, and can issue in
exchange other shares credited as fully paid
up. County Palatine Loan and Discount Co.,
In re; Teasdale's Case (43 L. J Ch. 578;
L. R. 9 Ch. 54), and Eichbaum v. City of
Cliicago Grain Elevators, Lim. (61 L. J.
Ch. 28; [1891] 3 Ch 459), followed. Bellerby
V. Rotvland and Marioood's Steamship Co.
(71 L. J. Ch. 451; [1902] 2 Ch. 14) dis-
tinguished. Rowell V. Rowell ,(■ Son, Lim.,
81 L. J. Ch. 759; [1912] 2 Ch. 609;
107 L. T. 374; 19, Manson, 371; 56 S. J. 704
— Warrington, J.
12. Mortgage of Shares.
See also Vol. III. 1498, 2530.
Pledge of Certificates — Blank Transfer —
Estoppel.] — The plaintiff employed a firm of
stockbrokers to buy for him shares in a
Colonial railway, and the brokers did so. The
shares were registered in the name of one H.,
the certificates were in his name, and the
303
COMPANY.
304
transfers on the back had been signed by him
in blank. On the brokers' suggestion the
plaintiff left the certificates with them and
subsequently consented to tlie shares being put
into other names. The brokers deposited the
shares with the defendant bank as security
for loans, and at the broker's request the
shares were put in the names of the bank's
nominees. The defendant bank took the
shares in good faith. In an action by the
plaintiff against the defendant bank to recover
the share certificates : — Held, that the bank
was not put upon enquiry by the mere fact of
the brokers depositing the shares as security
for their own account ; that the transfer from
H.'s name was not an intimation to the bank
that the shares did not belong to the brokers
and did not put the bank upon enquiry ; that
the principle of Colonial Baiik v. Cady
(60 L. J. Ch. 131; 15 App. Cas. 267), that
any one who signs a transfer on a certificate
in blank and hands it to another person knows
that third persons would think that that per-
son had authority to deal with it, extends to
a person who without having had such a cer-
tificate in his possession leaves it in the
hands of his broker, and that therefore the
plaintiff was estopped from recovering the
certificates from the defendants. Fuller v.
Glyn, Mills, Currie d Co., 83 L. J. K.B.
764; [1914] 2 K.B. 168; 110 L. T. 318;
19 Com. Cas. 186 ; 58 S. J. 235 ; 30 T. L. R.
162— Pickford, J.
XII. PROCEEDINGS AGAINST.
See alw Vol. III. 1633, 2540.
Sale of Goods— Limited Company— Order-
Name of Company not Mentioned — Personal
Liability — " Holder of order for goods."] — By
section 63, sub-section 3 of the Companies
(Consolidation) Act, 1908, if any person, on
behalf of a limited company, signs on behalf
of the company any bill of exchange or order
for goods, wherein its name is not mentioned,
he shall be personal!}- liable to the " holder "
of such bill of exchange or order for goods : —
Held, that, though the word " holder " was
not appropriate to orders for goods, as it was
in the case of bills of exchange, it meant in
the case of orders for goods the person to
whom the orders had been given. Civil
Service Co-operative Society v. Chapman,
30 T. L. R. 679— Bankes, J.
Action by Shareholder against Director and
Company — Contract made by Director for
Work to be done by the Company— Retention
of Money Received — Agreement with Co-
directors not to Account — Internal Manage-
ment.!— The managing director of a limited
company carrying on a laundry business
entered into contracts for laundry work in his
own name, on behalf of the company, with a
customer. The work was done by the com-
pany, and the director received the amounts
due under the contracts, and paid over a
portion to the company, but did not account
for the amounts received by him. This was
in consequence of an alleged arrangement with
his co-directors that he was not to account for
profits. The company declined to call upon
the director for an account, whereupon two
shareholders brought an action against the
company and the director, claiming that the
director was a trustee for the company of all
moneys received under the contracts, and
asking for an account. The company pleaded
that the complaint was conversant with a
matter of internal management, over which the
Court had no jurisdiction. The defence of the
director was that if there was any cause of
complaint against him, which he did not
admit, it was only enforceable at the suit of
the company : — Held, that the transaction was
illegal and ultra vires, and that the action
was maintainable and the plaintiffs entitled
to the relief sought. Cockburn v. Neiobridge
Sanitary Steam Laundry Co., [1915] 1 Ir. R.
237— C. A.
Sequestration against Company.] — See
Contempt of Court.
XIII. WINDING-UP BY COURT.
1. The Court.
See also Vol. III. 1667, 2543.
Jurisdiction to Transfer Action in King's
Bench Division to Chancery Division — Discre-
tion.] — Rule 42 (1) of the Companies
(Winding-up) Rules, 1909, provides that
" Where an order has been made in the High
Court for the winding-up of a company the
Judge shall have power, without further con-
sent, to order the transfer to him of any
action, cause or matter pending in any other
Court or Division brought or continued by or
against the company." Certain shareholders
of a company brought an action in the King's
Bench Division to set aside an agreement of
compromise entered into between the plaintiffs
and the defendant company and its directors,
upon the ground that it had been obtained by
fraud and misrepresentation, and for other
relief. The company was subsequently ordered
to be compulsorily wound up, and, the
liquidator having applied that the action
should be transferred to the winding-up Judge
in the Chancery Division, the Judge, being of
opinion that he had jurisdiction under rule
42 (1) to do so, although the directors were
added as defendants, ordered the action to be
transferred to him. On appeal by the plaintiffs
from that order, — Held, that the object of
rule 42 being to give to the winding-up Court
control over the whole assets of a company, the
Judge had jurisdiction to make the order in
question, and that, as it was in the circum-
stances a proper one, the Court of Appeal
would not interfere with the discretion exer-
cised by the Judge. Pacaya Rubber and
Produce Co., In re, 82 L. J. Ch. 134; [1913]
1 Ch. 218; 108 L. T. 21; 20 Manson, 37;
57 S. J. 143; 29 T. L. R. 129— C.A.
Leave to Commence Fresh Action in Scot-
land— Fruits of Previous Action. ^ — Leave was
granted under section 142 of the Companies
(Consolidation) Act, 1908, to the applicants to
bring a fresh action in Scotland after the
winding-up order had been made, when it was
shewn that such fresh action was in reality
only a method of obtaining the fruits of a
previous action. National Provincial Insur-
ance Corporation, In re; Cooper v. The Cor-
poration, 56 S. J. 290— Swinfen Eady, J.
305
COMPANY.
306
Jurisdiction of County Court — Proceedings
in Wrong Court.] — At the date of the presenta-
tion of a petition in the Southsea County
Court for ti^e winding up of a company, and
for the greater part of the six months preceding
that date, the company's registered office was
in London. All its assets were in Portsmouth,
and the office of the company had been there
for a considerable time during the six months
preceding the petition for winding-up : —
Held, that by virtue of sub-section 7 of sec-
tion 131 of the Companies (Consolidation) Act,
1908, the Judge of the Southsea County Court
had jurisdiction to hear the petition.
Southsea Garage, in re, 55 S. J. 314;
27 T. L. R. 295— D.
2. COMPAXIES WHICH MAY BE WoUND T"P.
See also Vol. III. 1668, 2544.
Unregistered Friendly Society — "Unregis-
tered company."] — A friendly society which
has not been registered under the Friendly
Societies Acts or any other Acts may be
compulsorily wound up by the Court as "an
unregistered company " under the Companies
Consolidation Act, 1908, ss. 267 and 268, and
an order will be made, if a great majority of
members desire it, although an action is pend-
ing in which the society could be wound up.
Victoria Society, Knottingley, In re, 82 L. J.
Ch. 176; [1913] 1 Ch. 167; 107 L. T. 755;
20 Manson, 76 ; 57 S. J. 129 ; 29 T. L. R. 94—
Neville, J.
3. Petition.
See also Vol. III. 1680, 2546.
Company's Name, Slight Error.] — Although
it is an old-standing rule that an error in the
name of a company in the winding-up adver-
tisement renders the advertisement absolutely
void, and although it is desirable that in
almost every case this old-standing rule
should be adhered to, there are cases where the
mistake is of such a very trifling character
that no one could possibly be misled by it,
and in such a case the Court can exercise the
discretion of waiving the formal defect under
rule 217. L'Industrie Verriere, Lim., hi re,
58 S. J. 611— Astbury, J.
Discretion — Emergency Powers. — Where
the only assets of a company are unrealisable
owing to the war, and a judgment creditor
presents a petition to wind up the company,
no creditors opposing the petition, an order to
wind up the company was made, the Court
deciding that it had no discretion under the
circumstances, and that the Courts (Emergency
Powers) Act, 1914, was not applicable; there-
fore the petitioner was entitled to the order
ex debito justiticB. Company (0,022 of 1915),
In re ; Company (0,023 of 1915), In re (84 L. J.
Ch. 382; [1915] 1 Ch. 520). applied. Western
of Canada Oil, Lands, and Works Co., In re
(43 L. J. Ch. 184; L. R. 17 Eq. 1, 7), followed.
Globe Trust Lim., In re, 84 L. J. Ch. 903;
113 L. T. 80; 59 S. J. 529; 31 T. L. R. 280
— Astbnry, J.
Opposition of Minority of Creditors —
Opponents Interested in Preservation of Com-
pany.]— A petition to wind up a company on
the ground of its inability to pay its debts
ought not to be refused or ordered to be stayed
until after the war merely because it is opposed
by creditors representing a minority in amount,
and the less weight should be given to the
wishes of such creditors where it appears that
they are interested in preventing a forced
realisation of the assets of the debtor com-
pany. Oilfields Finance Corporation, In re,
59 S. J. 475— C. A.
Majority of Unsecured Creditors Opposing —
Business Carried on by Debenture-holder —
"Just and equitable."] — The Court is not
bound to exercise its discretion by refusing to
make a winding-up order merely on the ground
that a majority in number and value of
creditors oppose the petition. Clandown
Colliery Co., In re, 84 L. J. Ch. 420; [1915]
1 Ch. 369; 112 L. T. 1060; [1915] H. B. R.
93; 59 S. J. 350— Astbury, J.
A creditor's petition against a colliery
company was supported by three trade
creditors, their debts amounting to 4851., but
was opposed by the company, the chairman,
and sixteen other trade creditors whose debts
amounted to 1,169Z. The evidence shewed
that creditors had been induced by the com-
pany to part with goods without being aware
of the company's insolvency. The business
had been for some time carried on in the
interests of the chairman, who held debentures
covering all the assets. No reasons for their
opposition were given by creditors opposing
the petition. : — Held, following Melson d Co.,
In re (75 L. J. Ch. 509; [1906] 1 Ch. 841),
that it was " just and equitable " under
section 129, sub-section vi. of the Companies
(Consolidation) Act, 1908, that a winding-up
order should be made. Ih.
Dismissal of Petition — Creditors' Opposition
— Proposed Scheme."' — A petition for the com-
pulsory winding up of a company was dis-
missed by the Court on the ground that it was
opposed by nearly all the creditors and that a
reconstruction scheme was in course of pre-
paration, and an order for the petition to
stand over might interfere with the company's
chances of obtaining the capital it required.
East Kent Colliery Co., In re, 30 T. L. R. 659
— Astbury, J.
4. Proceedings under Winding-up Order.
See also Vol. III. 1752, 2555.
" Execution " — Taxed Costs — Emergency
Powers. 1 — An order for compulsory winding-up
is not an execution within the meaning of
section 1, sub-section (1) (a) of the Courts
(Emergency Powers) Act, 1914, nor are taxed
costs a sum of money within the meaning of
the latter part of sub-section (b) of that sec-
tion to which the Act applied. World of Golf,
Lim., In re, 59 S. J. 7— Neville, J.
Director — Refusal to Answer Question at
Examination before Registrar — Obligation to
Answer.! — In windmg-iip proceedings against
a company of which he had been a director,
the respondent refused to answer a question
307
COMPANY.
308
at his examination before the Registrar re-
lating to a statement in the prospectus. The
respondent objected to answer on the ground
that there were certain actions pending against
him alleging misrepresentation in the pros-
pectus, and that he ought not to be called upon
to answer any questions relating to the issues
in those actions. On report by the Registrar,
under rule 72 of the Winding-up Rules, of
such refusal to answer, — Held, that the
respondent was bound to answer, as in the
circumstances there was no reasonable risk
of any information obtained being improperly
used, and the mere fact that proceedings
were pending against the respondent by
shareholders was no reason why he should
refuse to answer. Reliance Taxicab Co., In
re, 28 T. L. R. 529— Swinfen Eady, J.
5. Assets.
See also Vol. III. 1763, 2559.
Guarantee of Dividend — Winding-up —
Security — Deposit of Part of Purchase Money
— General Assets.] — Where on the sale of a
business to a company a contract was entered
into whereby the vendors guaranteed that the
net profits of the purchasing company in
respect of the business should amount to not
less than 10 per cent, per annum upon the
paid-up capital of the shares subscribed for by
the public, and the purchasing company paid
a sum equal to 10 per cent, upon the total
amount of the shares subscribed as aforesaid
into a bank to form a guarantee fund, such
sum to be deemed as a payment on account
of the purchase money, — Held, on the winding-
up of the purchasing company, that the
guarantee fund formed part of the general
assets of the purchasing company. South
Llanharran Colliery Co., In re; Jegon, ex
parte (12 Ch. D. 603), distinguished. Menell,
Lim., hi re; Regent Street Fur Co. v.
Diamant, 84 L. J. Ch. 593; [1915] 1 Ch. 759;
113 L. T. 77; [1915] H. B. R. 141;
31 T. L. R. 270— Warrington, J.
Surplus Assets — Division among Different
Classes of Shareholders — Yoluntary Winding-
up.] — Where preference shares are given with
a fixed preferential dividend at a specified rate,
or with an express provision as to the right to
a return of their paid-up capital, the right to
take any further dividend or to a further share
in surplus assets is in effect negatived.
National Telephone Co., In re, 109 L. T. 389;
68 S. J. 12; 29 T. L. R. 682— Sargant, J.
The term " surplus assets " used in
articles of association, in itself ambiguous,
means, in the case of division in a winding-up
between different classes of shares without
reference to the nominal amounts or to the
amounts paid on the shares, assets remaining
after recouping capital as well as discharging
debts and costs of liquidation, unless there be
special words in the articles indicating that
such is not the intention. Ramel Syndicate,
In re, 80 L. J. Ch. 455; [1911] 1 Ch. 749;
104 L. T. 842; 18 Manson, 297— Neville, J.
6. Stay of Actions and Proceedings.
See also Vol. III. 1777, 2565.
A pursuer, without having obtained the
leave of the Court, brought an action against
a company in liquidation, and also against
the liquidator and certain secured creditors.
Decree in absence was granted against the
company and the liquidator. The secured
creditors were the only defenders who
appeared, and they did not plead on record
any objection to the competency of the action.
In an appeal at the instance of the secured
creditors : — Held, that as the company and
the liquidator had waived any objection to the
competency, it was not pars judicis for the
Court to enforce the provisions of section 142
of the Companies (Consolidation) Act, 1908,
which enacts that " when a winding-up order
has been made, no action or proceeding shall
be proceeded with or commenced against the
company except by leave of the Court, and
subject to such terms as the Court may
impose." Hill v. Black, [1914] S. C. 913—
Ct. of Sess.
Distress Three Days before Commencement
of Winding-up — Motion to Restrain Sale.] — A
limited company held their business premises
on lease for fourteen years, commencing
June 25, 1914, which provided that the rent
should be payable each year fifteen months in
advance. The rent due March 25, 1915, for
the period June 25, 1915, to June 25, 1916,
was not paid, and on July 2, 1915, the land-
lord levied a distress on the premises. On
July 5, 1915, the company went into voluntary
liquidation. The liquidator brought an action
to restrain the landlord from proceeding with
the distress : — Held (affirming Neville, J.),
that there were no special reasons rendering it
inequitable to allow the landlord to enforce his
legal right of distress. Venner's Cooking and
Heating Appliances , Lim. v. Thorpe, 84 L. J.
Ch. 925; [1915] 2 Ch. 404; 60 S. J. 27— C.A.
Costs.] — Where, under section 140 of the
Companies (Consolidation) Act, 1908, an appli-
cation is made by notice of motion to stay
an action against a company on the ground
that a petition has been presented for its
winding-up, the plaintiff in the action is
entitled to receive from the applicant his costs
of appearing in the action. Pierce v. Wexford
Picture House Co., [1915] 2 Ir. R. 310—
K.B. D.
7. Contributories.
See also Vol. III. 1812, 2566.
Company Limited by Guarantee and not
having its Capital Divided into Shares —
Mutual Insurance — Past Members — Liability
of, to Contribute in Winding-up.] — Where a
company limited by guarantee and not having
its capital divided into shares is being wound
up, section 123, sub-section 1 (iii.) of the
Companies (Consolidation) Act, 1908 (which
replaces section 38, sub-section 3 of the Com-
panies Act, 1862), applies, and past members
are not liable to contribute unless it appears
309
COMPANY.
310
to the Court that the existing members are
unable to satisfy the contributions required
to be made by them in pursuance of the Act.
Accordingly it is proper for the liquidator to
prepare separate lists of past and present
members, and not to include both in one list
of contributories. Premier Underwriting Asso-
ciation, In re; Great Britain Mutual Marine
Insurance Association, ex parte, 82 L. J. Ch.
383; [1913] 2 Ch. 29; 108 L. T. 824;
20 Manson, 189; 57 S. J. 594— Neville, J.
The memorandum and articles of associa-
tion of a mutual insurance company defined
the members as being those who had any
ships insured in the company, and fixed their
liabilities in the event of winding-up. It was
also provided that the directors should be
ex officio members. Certain directors who held
no policies of the company having been placed
on the list of contributories in their capacity
as directors, an order was made that their
names be removed therefrom, but without
prejudice to the right of the liquidator to put
them on the list in any other capacity.
Premier Underwritiyig Association, In re;
Cory, ex parte, 82 L. J. Ch. 378; [1913]
2 Ch. 81; 108 L. T. 826; 20 Manson, 183;
57 S. J. 694— Neville, J.
Unregistered Company — Association Consti-
tuted by Deed.] — An unregistered allotment
society, which did not contemplate making any
profit, had a balance of 500Z. in hand. By the
rules, when the money borrowed by the
trustee of the land had been paid off. and each
member had had his piece conveyed to him,
the association was to terminate. When an
allotment was conveyed to a member, all his
liabilities (except as to completing, maintain-
ing, and dedicating roads and sewers, if any)
were to cease, and he would cease to be a
member of the association. Three of the
members who had had their allotments con-
veyed to them presented a petition to wind up
the association : — Held, on the analogy of the
case of the holders of fully paid shares being
treated as contributories within the meaning
of that word in section 137 of the Companies
(Consolidation) Act, 1908, that these three
persons were contributories, and that there
was jurisdiction in the Court to make the
order. Without an express declaration in the
rules it would be inequitable for the Court to
hold that this was an arrangement by way of
tontine in which those who paid their instal-
ments last took all the profits. Anglesea Col-
liery Co., In re (35 L. J. Ch. 546, 809;
L. K. 1 Ch. 555), applied. Osmondthorpe
Hall Freehold Garden and Building Allotment
Society, In re, 58 S. J. 13— Neville, J.
8. Creditors.
See also Vol. III. 1886, 2671.
Preferential Claims in Winding-up — " Clerk
or servant" — Director and Editor of
Periodical.! — The director of a publishing com-
pany who has a separate contract of service to
act as editor of a periodical published by the
company is, on a winding-up, entitled to pre-
ferential payment of his salary as editor within
the provisions of the Companies (Consolida-
tion) Act, 1908, s. 209, sub-s. 1 (b). Beeton
dt Co., In re, 82 L. J. Ch. 464; [1913] 2 Ch.
279; 108 L. T. 918; 20 Manson, 222; 57 S. J.
626— Neville, J.
Contributors to Periodical — Fixed Salary.]
— Persons who receive a fixed salary for con-
tributing articles or sketches to a periodical,
but have no seat in the company's office, no
supervision, and no fixed hours of employment,
are not " clerks or servants " within the mean-
ing of the section and enjoy no such preference.
lb.
Duty and Liability of ReceiYer and
Manager — Claim under Workmen's Compensa-
tion Acts — Statutory Duty of Receiver to Pay
Preferential Debts " forthwith."] — Where
debenture-holders of a company, whose security
is a floating charge on the assets of the com-
pany, appoint a receiver and manager, he must
satisfy the preferential claims (such as claims
by workmen under the Workmen's Compensa-
tion Acts) " forthwith " — that is, he must pay
them out of any assets in his hands before
paying the general creditors or any principal
or interest on the debentures. If the receiver
and manager proceeds to carry on the business
of the company before satisfying these prefer-
ential claims and incurs a loss he will be liable
in damages for a breach of his statutory duty
under section 107 of the Companies (Consolida-
tion) Act, 1908. Woods v. Winskill, 82 L. J.
Ch. 447; [1913] 2 Ch. 303; 109 L. T. 399;
20 Manson, 261: 57 S. J. 740— Astbury, J.
Analytical Chemist — "Clerk or servant."]
— B. was a chemist, and in July, 1910, was
engaged by M. & Co. for nine months at a
weekly wage to produce a specified series of
formulae for the manufacture of soaps and
perfumes. The contract was to be considered
as completed the moment B. had produced all
the formulas, and if completed before the end
of nine months B. was still to be paid all his
wages for the remainder of the nine months.
B. had to attend on only three specified days
of each week, but for regular hours, the
remainder of the week being at his disposal,
and he had in fact another regular engagement
with another firm ; and there were other special
terms in the contract. B.'s wages fell into
arrear, and in March, 1911, a winding-up order
was made against M. & Co., and at that date
there was due to B. 93/. for arrears of wages.
B. claimed 50Z. from the liquidator as a
preferential creditor under section 209, sub-
section 1 of the Companies (Consolidation)
Act, 1908 -.—Held, that under the terms of this
contract B. was a clerk or servant within
section 209, sub-section 1 of the Act, and was
a preferential creditor for 50/. Morison <t
Co., In re, 106 L. T. 731— Neville, J.
Insurance Company — Insolvent Company —
Employers' Liability Policy — Policy Current at
Date of Winding-up Order — Liability which
Emerges after Date of Winding-up Order —
Valuation of Policy.] — Holders of an em-
ployers' liability policy of an insurance com-
pany which became insolvent and had been
ordered to be wound up, in a proof making
claims in respect of accidents to their work-
311
COxMPANY.
312
men which had occurred after the date of the
winding-up order, but while the policy was still
current, — Held (Buckley, L.J., dissenting),
that the mode of valuation of a policy pre-
scribed by the Assurance Companies Act, 1909,
8. 17, and Schedule 6 (D), excluded claims in
respect of liabilities under a policy which
emerge subsequently to the date of the wind-
ing-up order. Lata Car and General Insur-
ance Corporation. In re; Kinq (f Sons'. Lirn.,
Claim tXo. 2), 82 L. J. Ch. 467 ; [1913] 2 Ch.
103; 108 L. T. 862: 20 Manson, 227; 57 S. J.
556; 29 T. L. R. 532— C. A.
The principle of valuation adopted in
'Northern Counties of England Fire Insurance
Co., In re (50 L. J.' Ch. 273; 17 Ch. D. 337),
is negatived in the case of companies within
the Assurance Companies Act. 1909. 7b.
Per Buckley, L.J. : The value as at the date
of the winding-up order of liabilities under a
current policy which emerge after the date of
the winding-up order and before proof may be
included in the value of the policy under the
Assurance Companies Act, 1909, Schedule 6
(D). 76.
Scheme of Arrangement — Claim for Breach
of Contract not Put Forward.] — The plaintiff
had a contract of employment for seven years
with the respondent company, commencing in
1910. In May, 1911, the plaintiff was given
a week's notice to leave, but he refused to
leave, and was then told he would have to
leave in three months. At the expiration of
that time he was sent away. In May, 1911,
a petition to wind up the company was pre-
sented, and a scheme being proposed the
plaintiff attended a meeting of creditors and
approved a deed of arrangement under which
he and other creditors were to receive 10s. in
the pound. At the date of the meeting there
was a sum due to the plaintiff for commis-
sion, and he approved and voted for the
scheme with reference to that sum only, and
not with reference to his claim under the agree-
ment of employment for seven years. The
scheme of arrangement was subsequently
approved by the Court under section 120 of the
Companies (Consolidation) Act, 1908. In an
action claiming damages for breach of the
agreement of employment the jury found a
verdict in favour of the plaintiff for 2251. : —
Held, that, although the plaintiff did not put
forward a claim for the breach of the agree-
ment under the deed of arrangement, he was
not barred from claiming damages in respect
of the breach and that he was entitled to
judgment for 112/. 10.9., being 10.5. in the
pound on the amount found bv the jury.
Curtis V. B.U.R.T. Co., 28 T. L. R. 585— C.A.
9. LiQODATOR.
See also Vol. III. 1945, 2578.
Powers of — Appointment of Solicitor.] — In a
winding-up by the Court, a liquidator who
proposes to employ a solicitor in matters con-
nected with the winding up of the company
should have regard to the wishes of the com-
mittee of inspection. If he disagrees with
them his proper course is to call a meeting of
contributories and creditors in accordance with
the Companies (Consolidation) Act, 1908,
s. 158, sub-s. 1. He should not under such
circumstances make an application ex parte
for the sanction of the Court to the employ-
ment of the firm in question, and an order
obtained upon such an application will be
discharged. Consolidated Diesel Engine Manu-
facturers, In re, 84 L. J. Ch. 325: [1915]
1 Ch. 192; 112 L. T. 535; [1915] H. B. R.
55 ; 59 S. J. 234 ; 31 T. L. R. 91— Neville, J.
Powers in Ireland.] — The provision in sec-
tion 151 of the Companies Consolidation Act,
1908, giving a liquidator in a winding-up in
Ireland power, with the sanction of the Court,
to bring or defend any action or other legal
proceeding in the name and on behalf of the
company, does not confer on third parties any
right to object to proceedings brought by a
liquidator in the name of the company, on the
ground that no such sanction has been
obtained. Dublin City Distillery v. Doherty,
83 L. J. P.C. 265; [1914] A.C. 823; 111 L. T.
81; 58 S. J. 413— H.L. (Ir.)
Report — Public Examination of Officers —
Registrar's Order — Jurisdiction — Discretion.]
— It is only in exceptional circumstances, if at
all, that an order should be made in the
winding up of a company for a public exam-
ination of its officers to be held in open Court
under section 174 of the Companies (Consolida-
tion) Act, 1908. Property Insurance Co., In re,
83 L. J. Ch. 525 ; [1914] 1 Ch. 775 ; 110 L. T.
973; 58 S. J. 472— Astbury, J.
A company was in voluntary liquidation and
a report was made by the liquidator alleging
grave irregularities in the conduct of the com-
pany's business, and suggesting the examina-
tion of certain of the directors as necessary to
an investigation, but making no charge of
fraud against them. An order was made on
the application of the liquidator directing a
public examination of these directors in open
Court : — Held, that the part of the order
which directed the examination to be held in
open Court must be discharged. 7b.
Semble, that under proper circumstances
there is power to order an examination in open
Court under section 174, having regard to the
Companies (Winding-up) Rules, 1909, rule 5.
7b.
Call — Refusal of Committee of Inspection
— Leave by Court.] — Where in the winding-up
of a company the committee of inspection, of
which the majority was composed of contri-
butories, refused to sanction a call on the
shares, the Court, on the ground that the
creditors' claims must have first consideration,
granted to the liquidator leave to make the
call. North -Eastern Insurance Co., In re,
59 S. J. 510; 31 T. L. R. 428— Sargant, J.
Death of Insolvent Shareholder — Debt due
to Company — Deceased's Share in Surplus
Assets — Claim for Retention by Liquidator.] —
A shareholder in a limited company died insol-
vent and indebted to the company, and in an
administration action the company were
found to be creditors for 2,6331. The com-
pany subsequently went into liquidation, and
the liquidator obtained an order in the action
313
COMPANY.
314
striking out his name as a creditor in order
that he might claim to deduct the ascertained
debt from the amount payable to the deceased's
estate in respect of his shares, which were fully
paid. The articles gave the company no lien
on the shares for the debt : — Held, that the
liquidator was not entitled to retain the
deceased's share in surplus assets against more
than the proper dividend on the ascertained
debt. Peruvian Railway Construction Co.,
In re, [1915] 2 Ch. 144; 59 S. J. 579;
31 T. L. E. 464— Sargant, J. Affirmed,
[1915] 2 Ch. 442; 60 S. J. 25; 32 T. L. E. 46
— C.A.
Public Examination — County Court — Official
Receiver and Liquidator — Report Charging
Fraud — Director — Subsequent Exculpation —
Costs of Proceeding — Official Receiver Ordered
to Pay Costs Personally — Jurisdiction.] — A
company having been ordered to be wound up
in the County Court, the official receiver, acting
as liquidator, made a preliminary report under
section 8, sub-section 1 of the Companies
(Winding-up) Act, 1890, and subsequently
made a further report under sub-section 2, in
which he stated that he was of opinion that
the facts set out in the report constituted a
fraud committed in the promotion or formation
of the company, and that the persons named
in the schedule (of whom a director of the
company was one) were parties to such fraud.
The County Court Judge, under sub-section 3,
ordered a public examination of the persons
named, and after it had been held the director
in question applied for an order exculpating
him from the charge of fraud made in the
report. Notice of the application was served
on the official receiver, and he appeared at the
hearing and opposed the application. The
Judge, however, made the order, and further
ordered the official receiver to pay to the
director the costs of his public examination
and of the application for exculpation. The
company having no available assets, the order
in effect was that the official receiver should
personally pay the costs. The Divisional
Court discharged the order on the ground that
the County Court Judge had no jurisdiction to
make it : — Held, that in regard to the exam-
ination the official receiver was merely dis-
charging a duty of a judicial character cast
upon him by section 8 of the Act ; and that the
proviso in sub-section 7 of that section enabling
the Court in its discretion to " allow " the
exculpated person costs meant that the Court
might allow such costs out of the assets of the
company and did not impose any personal
liability upon the official receiver, and that
therefore there was no jurisdiction to order
him to pay the costs of the public examination.
But held, that in regard to the application for
exculpation the official receiver had accepted
the position of litigant, and had by his action
become a party to a proceeding in the County
Court, and that consequently the Judge had
jurisdiction to order him to pay the costs of
the application ; and that as the Judge had
exercised his discretion, that was not a matter
for appeal. Raynes Park Golf Club, In re
(68 L. J. Q.B. 529; [1899] ' 1 Q.B. 961),
doubted by Farwell, L.J. Tiveddie d Co.,
In re, 80 L. J. K.B. 20; [1910] 2 K.B. 697;
103 L. T. 257 ; 26 T. L. R. 583— C.A.
Removal of Liquidator.]— On an application
by a shareholder in a limited company under
section 186 (ix.) of the Companies (Con-
solidation) Act, 1908, for the removal of the
liquidator on the alleged ground that he was
not in an independent position so as to be able
to make the strict investigation which the
affairs of the company were said to require, the
Court refused the application on the ground
that the directors impeached were no longer
directors and that the applicant had no
support from the other shareholders. Amal-
gamated Properties of Rhodesia, Lim., In
re, 30 T. L. E. 405— Astbury, J.
On a petition presented by a shareholder
alleging acts of misfeasance against the direc-
tors, a compulsory winding-up order was made
by the Court on the ground that there were
grave circumstances requiring investigation ;
and a liquidator and committee of inspection,
consisting of contributories, were appointed,
the assets at that date being more than suffi-
cient to pay the creditors of the company.
Subsequently, however, a creditor for a large
amount was admitted, and the assets then
were not more than enough to pay the
creditors. The liquidator, against whom no
personal allegations were made, admitted he
was administering the assets on behalf of the
contributories. Disputes arose as to the con-
duct of the liquidation, the liquidator intend-
ing to prosecute actions against the directors
with a view to increase the assets, as he con-
tended he ought to do under the order appoint-
ing him liquidator, the creditors objecting on
the ground that nothing could be recovered
from them as they had no means, and a
summons was taken out on behalf of the
creditors to remove the liquidator and have a
liquidator appointed on behalf of the creditors,
and also for the removal of the committee of
inspection on the ground that the liquidation
had become a creditors' liquidation, and that
the liquidator was administering the assets
on behalf of the contributories only : — Held,
that the liquidation having become a creditors'
liquidation since the order to compulsorily
wind up the company, the creditors were the
sole persons interested, and were entitled to
decide whether the small remaining assets
should be used in misfeasance proceedings
against the directors, and " due cause " had
been shewn for the removal of the liquidator
within the meaning of section 149, sub-
section 6 of the Companies (Consolidation)
Act, 1908, and there should be a reference to
chambers to appoint some one in his place.
Sir John Moore Gold Mining Co., In re
(12 Ch. D. 325). and Eyton d- Co., In re
(57 L. J. Ch. 127: 36 Ch. D. 299), applied.
Rubber and Produce Investment Trust. In re,
84 L. J. Ch. .534 : [1915] 1 Ch. 382: 112 L. T.
1129; [1915] H. B. E. 120; 31 T. L. E. 253—
Astbury, J.
Though there was no direct power under the
Act for the Court to remove the committee of
inspection, the Court could act on the sugges-
tion in Radford d Bright, Lim., In re C70 L. J.
Ch. 78, 352; [1901] 1 Ch. 272, 735K and order
the first meetings of creditors and contribu-
315
COMPANY.
316
tories to be re-summoned, and if then the
creditors appointed members from their own
body and the contributories re-appointed their
members to the committee, could decide in
favour of the creditors' nominees in the best
interests of the liquidation. lb.
Where Liquidator the Nominee of Credi-
tors— Neutral Liquidator.] — A motor manufac-
turing company, having resolved to go into
voluntary liquidation and having appointed its
chairman, who was also its managing director,
to be liquidator, petitioned the Court for an
order that the liquidation should be continued
under the supervision of the Court and that
the liquidator should be allowed to carry on
the business of the company for a certain
period. At a meeting of creditors of the com-
pany subsequently held it was decided by a
majority that application should be made to
the Court for the appointment of the auditor
of the company to act jointly with the
liquidator already appointed, and the peti-
tioners made an application to this effect. The
appointment of the auditor as joint liquidator
was opposed by certain of the creditors on the
ground (inter alia) that, as both liquidators
proposed were connected with the company
there would be no independent officer to in-
vestigate its affairs in the interests of the
creditors. The Court directed the liquidation
to proceed under the supervision of the Court
and appointed the auditor to be liquidator,
but conjoined with him a chartered accountant
who had no connection with the company, and
superseded the appointment of the managing
director, holding that, while it was desirable
that effect should be given to the wishes of the
creditors and that one of the liquidators should
be versed in the affairs of the company, it was
not desirable that both liquidators should be
men who had been closely associated with the
company. Arqylls Lim. V. Ritchie d White-
man, [1914] S. C. 91.5— Ct. of Sess.
Appointment of New Liquidator.] — Circum-
stances in which the Court, being satisfied that
it would be in the best interests of all con-
cerned, directed the appointment of a new
liquidator of the company. Baron Cigarette
Machine Co., In re, 28 T. L. E. 394— Swinfen
Eady, J.
10. Costs.
See also Vol. III. 1994, 2584.
Action Brought against the Company before
Winding-up — Judgment under Appeal.]— The
mere fact of the judgment obtained against a
liquidator being under appeal does not affect
the application of the rule laid down in
Wenborn, In re (74 L. J. Ch. 283; [1905]
1 Ch. 413), that the successful defendant is
entitled to have his costs in full out of the
assets of the company of an action brought or
defended by the company and continued after
winding-up by the liquidator. Free d Sons,
Lim., In re, 56 S. J. 175— Swinfen Eady, J.
Unsuccessful Action by Company in Liquida-
tion— Priority of Payment out of Assets.l —
Where a company in liquidation is ordered to
pay costs as an unsuccessful litigant, such
costs rank in priority before the liquidator's
costs ; and this is so whether the liquidation
is voluntary or compulsory, and whether the
order made is that the other party recover his
costs, or that the liquidator pay them out of
the assets or pay them and retain them out
of the assets. Pacific Coast Syndicate, In re;
British Columbian Fisheries, ex parte, 82 L. J.
Ch. 404; [1913] 2 Ch. 26; 108 L. T. 823;
20 Manson, 219; 57 S. J. 518— Neville, J.
Set-off — Respondent to Winding-up Petition
Subsequently Added as Contributory — Applica-
tion to Remove Name from List,] — Where a
limited partner was joined as a respondent to
a petition to wind up and did not oppose, and
his costs were ordered to be paid out of the
assets of the limited partnership, and he was
subsequently placed on the list of contribu-
tories and incurred costs payable to the
liquidator on an application to have his name
removed from such list, — Held, that the
liquidator could not set off such two sets of
costs one against the other, because the costs
of the winding-up stand on a different footing
from other costs in being incurred for the
benefit of everybody concerned. Principle
enunciated by Lord Romilly, M.E., in General
Exchange Bank, In re CL. R. 4 Eq. 138),
applied. Beer, In re; Brewer v. Bowman,
59 S. J. 510; 31 T. L. E. 428— Sargant, J.
Guarantee Policy — Contract to Pay Amount
of Principal and Interest Due on Mortgage on
Default of Mortgagor — Mortgagee's Costs
Added to His Principal.] — Where a guarantee
society contracted to pay the principal and
interest due on a mortgage on the mortgagor
making default in payment thereof, it was
held that the guarantee society did not con-
tract to indemnify the policy-holder against
any loss under her security, and, accordingly,
that in the winding-up of the guarantee
society the costs of valuing her security and
proving her claim came under the heading of
mortgagee's costs or costs of proof, and must
be disallowed because under the winding-up
rules creditors are not entitled to the costs of
proving their claim. Late Guarantee Trust
and Accident Society, In re (No. 1), 108 L. T.
830; 57 S. J. 628— Neville, J.
Taxation — Costs Incurred before Winding-
up — Assets of the Company in the Hands of
the Solicitors — Taxation in the Winding-up or
under the Solicitors Act, 4843.] — Where
solicitors to a company in compulsory liquida-
tion submit, on a summons intituled in the
matter of the winding-up, to an order for
delivery of their bill of costs, the bill when
delivered may be ordered to be taxed in the
winding-up proceedings. This is so although
the bill is in respect of costs incurred before
the liquidation and the solicitors are not
making a claim against the assets of the com-
pany, because they have money of the companv
in their hands more than enough to satisfy
their costs. Palace Restaurants, Lim., In re,
83 L. J. Ch. 427 ; [1914] 1 Ch. 492 ; 110 L. T.
534 ; 21 Manson, 109 ; 58 S. J. 268 ; 30 T. L. E.
248— C. A.
Semble, if the summons were intituled in
the matter of the Solicitors Act, 1843, and in
317
COMPANY.
318
the matter of the winding-up, the Judge
making the order for the delivery of the bill,
though sitting in winding-up, would have
power to order the taxation under the Solicitors
Act. lb.
XIV. VOLUNTAEY WINDING-UP.
See also Vol. III. 2004, 2586.
Order for Compulsory Winding-up.] — Cir-
cumstances in which the Court made an order
for the compulsory winding up of a company
where by reason of the way in which the busi-
ness had been carried on and the position of
the vendor (who had been appointed liquidator
in the voluntary winding-up) the fullest in-
vestigation was necessary by a liquidator other
than the vendor. Peruvian .Amazon Co., In re,
29 T. L. R. 384— Swinfen Eady, J.
Reconstruction — Dissentient Shareholder —
Notice — Validity.] — Where in a voluntary
winding up of a company a shareholder gives
notice to the liquidator of his dissent from the
resolution for winding-up and reconstruction
under section. 192, sub-section 3 of the Com-
panies (Consolidation) Act, 1908, such notice
is not valid if it merely calls upon the
liquidator to purchase the dissentient's hold-
ing. By the terms of the section, the notice
must give the liquidator the option of either
purchasing the holding of the dissentient
shareholder, or of abstaining from proceed-
ing with the winding-up. Demerara Rubber
Co., In re, 82 L. J. Ch. 220; [1913] 1 Ch. 331;
108 L. T. 318; 20 Manson, 148— Swinfen
Eady, J.
Summons by Liquidator for Rescission of
Contract — Jurisdiction of Court.] — In accord-
ance with a clause in its articles a company
entered into a contract with two of its directors
to purchase their option of the lease of a butter
factory in France, and 6,000 shares were
allotted to them as part of the purchase con-
sideration. The option was declared void by
the local French Court, and, its main object
having failed, the company went into volun-
tary liquidation. The liquidators issued a
summons asking that the contract might be
rescinded and the allotment of 6,000 shares
cancelled : — Held, that the proper remedy of
the liquidators was by action for rescission and
not by summons, and that, even if the Court
had jurisdiction to decide the question upon a
summons, this was not a matter in which its
discretion should be so exercised. Centrifugal
Butter Co., In re, 82 L. J. Ch. 87; [19i3]
1 Ch. 188; 108 L. T. 24; 20 Manson. 34;
57 S. J. 211— Neville, J.
Judgment Creditor — Execution Postponed by
Trickery — Leave to Proceed with Execution.]
— Where a judgment creditor of a company
has been induced by conduct of officers of the
company amounting to trickery to refrain
from issuing execution on his judgment until
after a resolution has been passed for the
voluntary winding up of the company, the
Court will, in the exercise of its discretion,
allow him to proceed with his execution. Vron
Colliery Co., In re (51 L. J. Ch. 389;
20 Ch. D. 442), distinguished. Amorduct
Manujacturing Co. v. General Incandescent
Co., 80 L. J. K.B. 1005; [1911] 2 K.B. 143;
104 L. T. 805 ; 18 Manson, 292— C.A.
Preferential Claim for Salary — Voluntary
Winding-up — Subsequent Compulsory Wind-
ing-up— "Commencement of winding-up."] —
Section 208 of the Companies (Consolidation)
Act, 1908, provides : " (1) In a winding-up
there shall be paid in priority to all other
debts ... (6) salary of any clerk ... in
respect of services rendered to the company
during four months before the said date not
exceeding 50Z. ... (5) The date hereinbefore
in this section referred to is (a), in the case
of a company ordered to be wound up com-
pulsorily, which had not previously com-
menced to be wound up voluntarily, the date
of the winding-up order ; and ib) in any other
case the date of the commencement of the
winding-up." In this case, in the voluntary
winding-up, which commenced on June 23,
1913, a claim for preferential payment under
this section was admitted by the voluntary
liquidator ; but on July 9 there was a petition
for compulsory winding-up, on which an order
for compulsory winding-up was made on
July 21, and in this winding-up the official
receiver, who was the liquidator under the
compulsory order, disallowed the claim on his
interpretation of what the words " commence-
ment of the winding up " meant in the
section : — Held, that the commencement of
the winding-up meant the time of the pre-
sentation of the petition for compulsory
winding-up, and not the resolution to wind
up voluntarily, and that, accordingly, the
preferential claim must be disallowed. Havana
Exploration Co., In re, [1915] H. B. R. 187;
59 S. J. 666— Neville, J.
Order for Application of Assets " in a due
course of administration " — Propriety of Pay-
ment to Statute-barred Creditors.! — Share-
holders opposing the payment of statute-barred
creditors in the voluntary winding-up of a
company, an order was made that the liqui-
dator should apply the assets " in a due course
of administration," and subsequently statute-
barred creditors were paid by the liquidator.
The company was not insolvent unless statute-
barred debts were admitted as liabilities : —
Held, that under these circumstances such
payment was an improper payment. General
Rolling Stock Co., In re; Joint Stock Discount
Co.'s Claim, ex parte (41 L. J. Ch. 732; L. R.
7 Ch. 646), and River Steamer Co., In re;
Mitchell's Claim (L. R. 6 Ch. 822), applied.
Fleetwood and District Electric Light and
Power Syndicate, In re, 84 L. J. Ch. 374;
[1915] 1 Ch. 486; 112 L. T. 1127; [1915]
H. B. R. 70; 59 S. J. 383; 31 T. L. R. 221—
Astbury, J.
Liquidator — Failure to Pay Creditor — Dis-
solution of Company — Costs of Action against
Company Thrown Away — Liability.] — The
plaintiffs sued a limited company called
Coxeter & Sons, Lim., for the price of goods
sold and delivered. During the progress of
that action Coxeter k Sons, Tjim., went into
voluntary liquidation, the present defendants
319
COMPANY— CONDITION.
320
being appointed liquidators, and later that
company was dissolved. The plaintiffs were
not aware of the liquidation and dissolution till
a later date, and when they became aware
thereof they sued the defendants to recover
from them as damages the price of the goods
which had been supplied to the company, the
plaintiffs alleging that the defendants as
liquidators had committed a breach of their
statutory duty in allowing the company to be
dissolved before the company's debts had been
paid. The plaintiffs also claimed to recover
from the defendants the amount of the costs
that had been thrown away in the action
against Coxeter & Sons, Lim., that action
having abated on the dissolution of the com-
pany : — Held, first, that the defendants had
committed a breach of their statutory duty in
allowing the company to be dissolved before its
debts had been paid and that they were liable
in damages to the plaintiffs in respect of the
claim for goods sold to the company ; but
secondly, that the defendants were not in the
circumstances liable for the costs thrown away
in the action against Coxeter & Sons, Lim.,
as the incurring of those costs was not the
natural consequence of the defendants' breach
of statutory duty. Argylls. Lim. v. Coxeter,
29 T. L. K. 355— Pickford, J.
XV. DISSOLUTION.
See also Vol. III. 2004.
Reconstruction — Agreement of New Com-
pany to Take over Assets ana Liabilities of Old
Company — Omission to Take over Liabilities —
Dissolution Declared Void.] — A limited com-
pany was reconstructed, it being agreed be-
tween the new company and the liquidator of
the old company that the former should take
over all the assets and liabilities of the old
company. The new company, however, ulti-
mately agreed with the liquidator not to take
over certain shares in a third company that
belonged to the old company, and were liable
to certain calls. The old company was then
dissolved under section 195 of the Companies
(Consolidation) Act, 1908. The third company
(having vainly called upon the new company
to take over the shares in question) moved the
Court that the dissolution of the old company
might under the circumstances be declared void
under section 223, sub-section 1 of the Act : —
Held, that this was a proper case for the Court
to exercise its discretion under section 223, and
to declare the dissolution of the old company
to be void. Spottiswoode. Dixon d- Hunting,
Lim., In re, 81 L. J. Ch. 446; [1912] 1 Ch.
410; 106 L. T. 23; 19 Manson, 240; 56 S. J.
272; 28 T. L. E. 214— Neville, J.
Assets Recovered after Dissolution — Motion
to Revive Company — Rights of Crown — Bona
Vacantia J — After the automatic dissolution of
a company in accordance with section 195 of
the Companies (Consolidation) Act, 1908, cer-
tain assets were realised by the liquidator.
Upon motion by the liquidator to declare the
dissolution void, the Court ordered that the
Attorney-General be served with notice of the
motion in order that the rights of the Crown
to the money as bona vacantia might be con-
sidered. At the adjourned hearing the Crown
waived its claim, and leave was given to the
liquidator, after payment of the costs to all
parties, to distribute the residue of the money
in the usual way, submitting his accounts to
the Board of Trade for approval. Henderson's
Nigel Co., In re, 105 L. T. 370— Neville, J.
COMPENSATION.
See INTOXICATING LIQUOES; LANDS
CLAUSES ACT; LOCAL GOVEEN-
MENT; NEGLIGENCE; WOEKMEN'S
COMPENSATION.
COMPROMISE.
Agreement — Construction.] — Deeds of com-
promise of ascertained specific questions will
not be construed so as to deprive any party
thereto of any right not then in dispute and
not in contemplation by any of the parties to
the deed. Cloutte v. Storey, 80 L. J. Ch.
193; [1911] 1 Ch. 18; 103 L. T. 617— C. A.
COMPULSORY PILOTAGE.
See SHIPPING.
COMPULSORY
PURCHASE.
See LANDS CLAUSES ACT.
COMPULSORY
REFERENCE.
See ARBITEATION.
CONDITION.
See also Vol. III. 2050, 2.596.
Bequest for Augmentation of Benefice — Not J
to be Held in Plurality— Union of Benefices.] |
—Where there is a bequest to a benefice on
condition that it shall never be held in
plurality, the condition is not broken by the
321
CONDITION.
322
union of the benefice with another benefice
under an Order in Council. Macnamara,
hi re; Hewitt v. Jeans, 104 L. T. 771;
55 S. J. 499— Eve, J.
Gift by Will to Married Woman while
Living Apart from Husband — Public Policy.]
— A gift to a married woman, during such
time as her husband should be living apart
from her, with a limitation over away from
her in the event of their living together again,
is not necessarily invalid, as being against
public policy, if she was at the date of the
testator's will already deserted by her
husband. Moore, In re; Trafford v.
Maconochie (57 L. J. Ch. 936; 39 Ch. D. 116),
distinguished. Charleton, In re; Bracey v.
Shenvin, 55 S. J. 330 — Joyce, J.
Annuities Forfeitable — Gift Over.] — A testa-
trix provided that certain annuitants should
not be allowed to have the value of their
annuities in lieu thereof, and if they should
do or suffer any act or thing whereby the
annuity should be assigned, charged, or incum-
bered, the annuity should thenceforth cease to
be payable : — Held, that the provision for
cesser was not repugnant to the previous gift
of the annuities, but there was a good gift
over, on such an event happening to the
residuary legatees. Dempster, In re; Borth-
wick V. Lovell, 84 L. J. Ch. 597; [1915]
1 Ch. 795; 112 L. T. 1124— Sargant, J.
Legacy — Conditions — Discretion of
Trustees.] — A testator directed his trustees to
pay to two institutions for instruction in music
a legacy, subject to certain conditions, for the
foundation of a scholarship to enable the holder
to continue his studies at a Continental con-
servatoire, and directed that the regulations
for the scholarship should be in the discretion
of the governors of the institutions. The
governors intimated to the trustees of the will
that they declined to accept the bequest if it
was essential that it should be administered
strictly in accordance with the terms of the
will : — Held, that the particular method in
which a student might enjoy the scholarship
was left to the governors of the institutions,
and that the application of the gift should be
as nearly in accordance with the scheme in the
will as they thought desirable. Harrison,
In re; Harrison v. Att.-Gen.. 85 L. J. Ch. 77;
113 L. T. 308; 31 T. L. R. 398— Eve, J.
Impossible Condition — Condition Subsequent
— Effect of Disentailing Assurance on Subse-
quent Limitations.] — A testator devised his
real estate to A. (a German subject) and the
heirs of his body on the express condition that
he should within two years from the date of
the testator's death become a British subject,
and take upon himself the testator's name,
and should not afterwards divest himself of
his status as a British subject, or of such
name. The testator further provided that if
A. refused or neglected to comply with the
said condition his said real estate should go
(subject and upon the same conditions) to A.'s
sister (who was also a German subject) and
the heirs of her body, with similar remainders
over. On the testator's death A. executed a
disentailing assurance of the lands : — Held,
first, that, notwithstanding the provisions of
the Naturalisation Act, 1870, requiring five
years' residence as a condition of naturalisa-
tion, the condition as to naturalisation was
not an impossible condition, as it was not
impossible to obtain a private Naturalisation
Act within two years of the testator's death ;
but secondly, that the conditions as to
naturalisation and taking the testator's name
were conditions subsequent, and that the
effect of the disentailing assurance executed
by A. was to defeat subsequent estates which
would otherwise have taken effect after the
determination of, or in defeasance of, the
estate tail devised to A. ; and thirdly, that
A. was accordingly entitled to an estate in
fee-simple in the lands freed from the condi-
tions. KnoT, In re; Von Scheffler v.
Shuldham. [1912] 1 Ir. R. 288— Barton, J.
Validity — Public Policy.] — A clause in a
mortis causa disposition of heritage provided
that each of the heirs who should succeed to
the lands should be obliged in all time to use
the disponer's name and arms, and that " in
case anj' of the said heirs shall succeed to a
peerage, then, when the person so succeeding,
or having right to succeed, to my said lands
shall also succeed to a peerage, they shall be
bound and obliged to denude themselves of all
right " in the lands, and the same should
devolve on the next heir : — Held, that this
clause was not void as against public policy,
and that it applied to, and excluded, an heir
who, prior to the opening of the succession to
the lands, had succeeded to a peerage.
Egerton v. Broxonlow {Earl) (4 H.L. C. 1)
distinguished. Caithness (Earl) v. Sinclair,
[1912] S. C. 79— Ct. of Sess.
Vested Interest — Condition Subsequent —
Not to Live ¥fith or be under Control of Father
— Public Policy — Uncertainty.] — A testatrix
gave three-fourths of her residuary estate upon
trust to pay the income thereof to her two
grandchildren up to December 31, 1927. and
immediately after that date to divide the
capital thereof between them. After providing
for the event of the death of the said grand-
children or either of them before that date,
the testatrix declared as follows : " I declare
that if at any time on or before December 31,
1927, either one or both of my grandchildren
shall live with or be or continue under the
custody guardianship or control of their father
or be in any way directly under his control
all benefits profits and income provided to be
given under this my will to both or either one
of them as the case may be shall thereby cease
and determine and it shall be at all times and
under all circumstances an absolute condition
of either one or both of them receiving any
income benefit or legacy under this my will
that he or she or both of them shall separately
and individually continue to live free from his
direct influence and control." The will then
provided that in case either one or both of
them should forfeit any interest under this
condition their shares or his or her share were
to go over as if they or either of them had
died before December 31, 1927 -.—Held, first,
that the condition was in defeasance of an
11
323
CONDITION.
324
interest previously given; secondly, that it was
bad as against public policy (a) by operating to
restrain a father from doing his duty and
exercising his parental authority, and {b) by
tending to limit the Court's discretion with
regard to the custody and maintenance of its
wards; and thirdly, that, upon the principles
stated in Clavering v. Ellison (29 L. J. Ch.
761; 7 H.L. C. 707), it was void also for
uncertainty. Sandbrook, In re; Noel v.
Sandbrook, 81 L. J. Ch. 800; [1912] 2 Ch.
471 ; 107 L. T. 148 ; 56 S. J. 721— Parker, J.
Forfeiture Clause — After-acquired Property
not Settled — " Possessed of or entitled to " —
Alternative, not Cumulative Clause — Kever-
sionary Interest — Vesting in Possession —
Property Subject to Clause.] — Where there
was a clause of forfeiture of beneiits under
her father's will if the daughter did not settle
after-acquired property which she should be-
come " possessed of or entitled to " over the
value of 1,000Z., the words "possessed of or
entitled to " were held to be not cumulative,
but alternative, and separate meanings must
accordingly be found for them, and accordingly
property of over the value of 1,000Z. in respect
of which the daughter had before her father's
death a vested reversionary interest was held
to be subject to the clause of forfeiture.
Bland's Settlement, In re; Bland v. Perkin
(74 L. J. Ch. 28; [1905] 1 Ch. 4), dis-
tinguished. Brook, In re; Brook v. Hirst,
111 L. T. 36; 58 S. J. 399— Sargant, J.
Conditional Gift of Annuity — " To cease
on return to England."] — A testator be-
queathed an annuity to his nephew C. sub-
ject to the condition that " should the said
C. return to Ireland, England, or Scotland,"
the annuity was to cease. C, who resided in
New Zealand, took a passage to and landed in
England, alleging that he was on his way to
Jersey. The facts proved were consistent with
his statement, and it was in evidence that the
usual way of travelling to Jersey from New
Zealand was through England. Shortly after
landing in England he committed murder and
was convicted in England, but was found to
be insane, and was detained in a criminal
lunatic asylum : — Held, that C. had forfeited
the legacy. Crurnpe, In re; Orpen v.
Moriarty, [1912] 1 Ir. R. 485— Barton, J.
Settlement— Bankruptcy— Life Interest
until Event whereby if Income Payable
Absolutely Beneficiary would be Deprived " of
the right to receive the same or any part
thereof" — Order of Probate Division Setting
Apart Whole Income for Tenant for Life's
Children.] — In 1887 F. C, on his marriage,
settled the proceeds of property as to the
income upon himself for life, determinable on
his bankruptcy or until he suffered any act or
thing or any event happened whereby, if pay-
able to him absolutely, he would be deprived
of the right to receive the income or any part
thereof. By an order in 1895 after the dissolu-
tion of F. C.'s marriage, the President of the
Probate Division ordered that the trustees
should set apart the whole of the income of the
settled funds which was then payable to him,
and apply it for the children of the marriage
until majority. F. C. became bankrupt in
1904, and his youngest child attained twenty-
one in 1910 : — Held, that the order of the
Probate Division was an act or event ante-
cedent to his bankruptcy by which F. C.'s
interest in the whole income was determined
for a substantial period, and that therefore a
forfeiture took place at the time the order was
made and nothing passed to the trustee in his
bankruptcy. Careiv's Trusts, In re; Gelli-
brand v. Careic, 103 L. T. 6.58— Eve, J.
Gift of Life Interest— Apportionment-
Income Accrued Due at Date of Alienation,
but not Actually Received.] — A testator gave
one-fifth of his residuary estate on trust to pay
the income to his son W. during his life, but
with a direction that the same should only be
paid to him so long as he should not attempt
to assign or charge the same or do or suffer any
act whereby the same might become vested in
or payable to any other person. W. executed
an assignment of the income by way of mort-
gage. At that date the trustees had in hand
income already received by them, and they
subsequently received further moneys, some
of which represented the apportioned part of
the income up to the date of the mortgage : —
Held, that W. or his mortgagee was entitled
to the income received before the mortgage,
but that they were not entitled to the moneys
representing the apportioned part of the
income up to the date of the mortgage, since,
although the moneys would have been ulti-
mately payable to W. if the Apportionment
Act, 1870, had applied, the provision in the
will prevented income becoming payable to
W. after he had attempted to assign or charge
it. Sampson, In re; Sampson v. Sampson
(65 L. J. Ch. 406; [1896] 1 Ch. 630), followed.
Jenkins, In re; Williams v. Jenkins, 84 L. J.
Ch. 349; [1915] 1 Ch. 46— Sargant, J.
Settlor's Own Property Settled on Him-
self.]— A settlor made a settlement of his
property by which certain income was to be
paid to himself for life or until he should
attempt to alienate it. Subsequently he
executed a mortgage upon the income payable
to him under the settlement : — Held, that the
settlor's life intei-est in the fund was forfeited
by operation of the charge. Perkins' Settle-
ment, In re; Warren v. Perkins, 56 S. J. 412
— Warrington, J.
Receiving Order — Liquidation by Ar-
rangement—Discharge of Receiving Order—
" Become payable to some other person."] —
A testator who died in September, 1883, gave
the income of a fund to his son until he should
have his affairs liquidated by arrangement or
should do something whereby the income be-
came payable to some other person. In 1910
a receiving order was made against the son,
but shortly afterwards a scheme of arrange-
ment was approved by the Court and the
receiving order was discharged. While the
receiving order was in operation income came
to the hands of the trustees : — Held, that the
scheme of arrangement was not a " liquidation
by arrangement " within the meaning of the
clause. Held, also, that the receiving order
operated to make the income payable to some
325
CONDITION— CONTEMPT OF COURT
326
other person, and therefore determined the life
interest. Sartoris, In re; Sartoris v. Sartoris
(61 L. J. Ch. 1; [1892] 1 Ch. 11), applied.
Laye, In re; TurnhuU v. Laye, 82 L. J. Ch.
218; [1913] 1 Ch. 298: 108 L. T. 324;
20 Manson, 124; 57 S. J. 284— Eve, J.
Queer e, whether the same result would
follow if no income had come to hand while
the receiving order was operative. 76.
Married Woman.] — By the terms of a
will, h_y which an annuity was given to a
married woman, it was provided that the
annuitant should be restrained from anticipat-
ing any property coming to her thereunder,
and, further, that '" if she should assign, dis-
pose of, or charge the annuity, whether under
disability or not," the annuity should cease.
The married woman (the annuitant) purported
to charge the annuity : — Held, that as she
could not create a valid charge there was no
forfeiture of the annuitv. Adamson, In re;
Public Trustee v. Billing, 109 L. T. 2-5;
57 S. J. 610; 29 T. L. R. 594— C.A.
CONDITIONS.
In Contracts.
-See Contract.
Of Sale.l — See Vendor and Purchaser.
CONFESSIONS.
See CRIMINAL LAW.
CONFLICT OF LAWS.
See INTERNATIONAL LAW.
CONSIDERATION.
Bills of Exchange, &c.] — See Bill of
Exchange.
Bills of Sale.] — See Bill of Sale.
CONSIGNEE.
Under Bill of Lading.]— See Shipping.
Under Contracts of Sale.l — See Sale of
Goods.
In Carriage of Goods and Animals.] — See
Carrier ; Railway.
CONSPIRACY.
See CRIMINAL LAW.
CONTAGIOUS
DISEASES.
See ANIMALS.
CONTEMPT OF COURT.
See also Vol. III. 2136, 2615.
Comments Pending Trial — Comments not
Referring to Subject-matter of Action. j^ — It is
not a sufficient answer to a motion to commit
a defendant for commenting adversely on the
character of the plaintiff during the pendency
of an action for the defendant to shew that
the comments had no reference to the subject-
matter of the action if it is clear that the
trial of the action will be prejudiced by the
publication of those comments. Higgins v.
Richards, 28 T. L. R. 202— D.
Libel Action — Plea of Justification.] —
Where the defendant in a libel action swears
that he is going to justify the words of the
alleged libel the Court will not issue a writ
of attachment against him in respect of com-
ments made by him after the issue of the writ
unless it is satisfied that the plea of justifica-
tion is not genuine, or unless the comments
are made near the time of trial or made at a
place near where the trial is to take place and
are calculated to deter witnesses from coming
forward and speaking their minds freely, or
are calculated to warp the minds of jurymen.
Per Lush, J. : Where the plaintiff in a libel
action seeks to stop the defendant from making
comments while continuing to make comments
himself, the Court ought not to interfere. Rex
V. Blumenfeld ; Tupper, Ex parte, 28 T. L. R.
308— D.
It is a contempt of Court for a news-
paper to refer to an action pending in the
King's Court in any manner that may tend in
any degree to interfere with the course of
justice, and it cannot be pleaded in excuse
either that the reference was only made for
political purposes, or that the names of the
parties in the action were not mentioned.
Thornhill v. Steel-Morris, 56 S. J. 34—
Swinfen Eady, J.
The publication together of two items of
news, the first relating to private proceedings
in a pending action in connection with a share
transaction, and the second giving a report of
criminal proceedings (not yet finished) relating
to the same transaction, held to tend to pre-
judice the jury trying the criminal case.
Scmble, per Scrutton, J., a newspaper ought
not, before a case comes on for trial, to publish
in full the private proceedings, such as the
statement of claim or an affidavit charging
fraud or a writ containing similar char£fes.
327
CONTEMPT OF COUET.
328
Rex V. AstoT ; Isaacs, Ex parte; Rex v.
Madge; Isaacs, ex parte, 30 T. L. E. 10 — D.
Injunction against Receiving Money.] —
A receipt from the Government of money
which the recipient has been restrained from
receiving is a contempt of Court. Eastern
Trust Co. V. McKenzie, Mann <f: Co., 84 L. J.
P.C. 152; [1915] A.C. 750; 113 L. T. 346
— P.C.
Hearing in Camera — Publication of Details.]
— An order for a hearing in camera extends
only to the hearing, and does not prohibit the
subsequent publication of what passed at such
hearing, provided that such publication be
made in good faith and without malice. Scott
V. Scott {No. I), 82 L. J. P. 74; [1913] A.C.
417; 109 L. T. 1; 57 S. J. 498; 29 T. L. R.
520— H.Ij. (E.)
Application — Motion or Order Nisi.] — Where
a person against whom an attachment for con-
tempt of Court is sought is a party to an action
in connection with which the alleged contempt
is committed, the case falls within Order LII.
rule 2, whatever the nature of the contempt,
and the motion should be upon notice to the
other side and not for an order yjisi. Squire
V. Hammond, [1912] W. N. 200— D.
Application in Person.] — The Court will
not hear an application by an applicant in
person for a rule nisi for a writ of attachment
for contempt of Court against the proprietors,
editor, and manager of a newspaper. An
application for a writ of attachment can only
be made by counsel. Fenn, Ex parte (2 Dowl.
P.C. 527) followed. Liebrand, Ex parte,
[1914] W. N. 310— Lawrence, J.
Rule Nisi for Writ of Attachment — Limited
Company.] — Although a limited company
cannot be committed to prison, the Court has
jurisdiction, on the return to a rule yiisi calling
upon a limited company to shew cause why a
writ of attachment should not issue against it
for contempt of Court, to inflict an appro-
priate penalty other than imprisonment. Rex
V. Hammond <£- Co.; Robinson, Ex parte,
83 L. J. K.B. 1221; [1914] 2 K.B. 866;
111 L. T. 206; 58 S. J. 563; 30 T. L. R.
491— D.
Order of Court of First Instance Reversed
by Court of Appeal — Jurisdiction of Court of
First Instance to Enforce by Attachment Order
of Court of Appeal.] — By an order of the
Master of the Rolls the defendants were
restrained from proceeding further with the
erection and completion of a building which
the plaintiff alleged obstructed the light coming
through his ancient windows. The plaintiff
appealed from this order on the ground that
it did not include a mandatory injunction
commanding the defendants to pull down the
building complained of. The Court of Appeal
discharged the order of the Master of the Rolls,
and ordered the defendants to have the building
pulled down forthwith. The defendants dis-
obeyed this order, and the plaintiff thereupon
applied to the Master of the Rolls for a writ
of attachment for contempt of Court to issue
against them. The Master of the Rolls refused
the application, being of opinion that the con-
tempt of which the defendants had been guilty
was a contempt of the Court of Appeal, and
that he accordingly had no jurisdiction to
punish it. On appeal from this decision to the
Court of Appeal, — Held, that the Master of the
Rolls had jurisdiction to make the order sought
for, and that, as the plaintiff was entitled to
the order, the issue of a writ of attachment
should be directed by the Court of Appeal,
not in the exercise of an exclusive jurisdiction,
but by way of reversal of the order of the
Master of the Rolls. Fortescue v. McKeown,
[1914] 1 Ir. R. 30— C. A.
Interference virith Receiver and Manager of
Business — Competing Business.] — "When a
receiver and manager of a partnership busi-
ness has been appointed, a partner who starts
a competing business in such a manner as
to be likely to injure the original business
(for example, by issuing circulars that the
original business is no longer carried on) may
be punished by committal for contempt of
Court. King v. Dopson, 56 S. J. 51 —
Joyce, J.
Receiver of Business of Alien Enemy —
Licence to Trade Obtained on Petition.] — The
English assistant manager of alien enemies'
business of manufacturing pianos, having been
appointed receiver and manager of such busi-
ness on his undertaking (1) not to remit goods
or money forming assets of the business to any
hostile country, and (2) to endeavour to obtain
a licence from the Crown for the continuance
of the defendants' business, moved to commit
the president of the Piano Manufacturers'
Association for writing a letter describing it
as an unpatriotic act to do business with such
firm, before such receiver had in fact obtained
such licence — which he subsequently obtained
— but after he had petitioned to obtain it : —
Held, that the president must give an under-
taking not to circulate in future any such
letters during the continuance of the licence.
Bechstein, In re; Berridge v. Bechstein
(No. 2), 58 S. J. 864— Sankey, J.
Motion to Issue Writ of Sequestration —
Company — Order Disobeyed — Personal Ser-
vice.]— A motion to sequestrate, which is the
only remedy against a company which disobeys
a prohibitive order of the Court, will not be
invalidated by reason of the order disobeyed
not having been personally served upon the
company, although duly served upon the soli-
citors of the company. In the case of an
individual, committal would have been the
proper remedy for breach of a prohibitive
order, and such committal could be had with-
out personal service of the order disobeyed.
Tuck, In re; Murcli v. Loosemore (75 L. J.
Ch. 497; [1906] 1 Ch. 696), not applicable
to such a case as this. The principle of D. v.
A. .{• Co. (69 L. J. Ch. 882; [1900] 1 Ch. 484)
applied. Aberdonia Cars, Lim. v. Brown,
Hughes <f Strachan, Lim., 59 S. J. 598—
Neville, J.
Breach of Injunction — Committal — Affidavit
— Service with Notice of Motion.] — Order LII.
rule 4, requiring a copy of any affidavit in-
tended to be used on the motion to be served
with a notice of motion for attachment, does
not apply to a motion for committal. Litch-
field V. Jones (25 Ch. D. 64; 32 W. R. 288)
explained. Taylor, Plinston Brothers £ Co. v.
329
CONTEMPT OF COUET— CONTRACT.
330
Plinston, 81 L. J. Ch. 34: [1911] 2 Ch. 605;
56 S. J. 33; 28 T. L. R. 11— C. A.
Legal Practitioner — Application for Warrant
— Civil and Criminal Courts — Striking off the
Rolls.] — Where ;i lej^al practitioner applied for
a warrant in a civil Court for the detention
of a man alleged to be on the point of leaving
the colony, and the vcarrant was refused, and
then appeared in a criminal Court in respect
of the same matter and, on evidence to which
the civil Court attached no credence, obtained
a warrant, — Held, that no punishable con-
tempt of the civil Court had been committed,
as the client was not by law confined to a
simple form of remedy, but was entitled to
all the remedies available. Taylor, In re,
81 L. J. P.C. 169; [1912] A.C. 347; 105 L. T.
973; 28 T. L. R. 206— P.C.
Charge against Solicitor of Professional
Misconduct — Destruction of Material Docu-
ments.]— After an application had been made
to the committee of the Incorporated Law
Society to hear a charge of misconduct against
a solicitor, and before the report of the com-
mittee had been presented to the Lord Chan-
cellor, the solicitor destroyed the documents
on which the charge of misconduct was
founded. Semble, that this amounted to con-
tempt of Court. Solicitor, In re, [1915]
1 Ir. R. 152— L.C.
See also ATTACHMENT.
CONTINGENT
REMAINDER.
See WILL.
CONTRACT.
A. Formation of Contract.
1. Agreement, 330.
2. Statute of Frauds, 331.
B. Parties to Contract, 335.
C. The Matter of Contract.
1. Consideration, 335.
2. Impossible Contracts, 337.
3. Illegal Contracts.
a. Generally, 337.
b. Contrary to Public Policy, 338.
c. Contrary to Statute, 341.
d. Contrary to Morality, 341.
e. In Restraint of Trade.
i. General Principles, 341.
ii. Reasonableness, 342.
iii. Dealings with Particular Per-
sons, 348.
iv. What Constitiutes a Breach, 348.
D. Interpretation of Contracts, 350.
E. Discharge and Breach of Contract, 355
F. Rescission, 356.
G. With Corporations. — See Corporation.
H. With Companies. — See Company
I. With Infants. — See Infant.
J. W'lTH Married Woman. — See Husband and
Wife.
K. With Agent, &c. — See Principal and
Agent.
L. On Sale of Goods. — See Sale of Goods.
M. On Sale of Lands. — See Vendor and Pur-
chaser.
N. Damages for Breach. — See Damages.
O. Theatrical Contracts. — See Theatre.
A. FORMATION OF CONTRACT.
1. Agreement.
See also Vol. IV. 3, 1953.
Verbal or Implied Agreement to Treat
Acceptance out of Time as Valid or to Extend
Time — Agent for Acceptance — Ratification of
Acceptance by Subsequent Conduct — Parol
Variation of a Written Contract.] — B. wrote
to A. accepting A.'s offer, " subject to the
purchase money being secured to my satisfac-
tion." This acceptance was dated October 18,
the last day of the lunar month in question,
and was sent by B. to S., a house agent, and
received by S. on October 19. S. sent a copy
of the letter to A. the same day. S. had no
previous authority from A. to receive the
acceptance; but held, that the subsequent
conduct of A. ratified S.'s acceptance and
constituted S. A.'s agent for that purpose, so
that the acceptance was in time. Morrell v.
Studd, 83 L. J. Ch. 114; [1913] 2 Ch. 648;
109 L. T. 628; 58 S. J. 12— Astbury, J.
Semble, even if the acceptance had not been
in time the subsequent conduct of A. in con-
tinuing to negotiate with B. for three months
after B.'s acceptance with reference to the
details of the contract, such as the securing of
the purchase money, without having suggested
that the acceptance was out of time, was suffi-
cient to shew an implied agreement either to
enlarge the time for acceptance or to treat the
actual acceptance as a proper acceptance. Such
an implied agreement need not he in writing
to satisfy the Statute of Frauds ; because it
is not a verbal alteration of an agreement
required to be in writing, since the agreement
required to be in writing is not complete, and
therefore not an agreement till a proper accept-
ance is given, and before an acceptance out
of date can be treated as proper the implied
or verbal agreement must of necessity be come
to. Bruner v. Moore (73 L. J. Ch. 377;
[1904] 1 Ch. 305) applied. Coss v. Nugent
(Lord) (2 L. J. K.B. 127; 5 B. & Ad. 58)
distinguished. 7().
Term of Contract Left Open.] — Although a
term, such as the securing of the purchase
I Muiiiey, was left open in tlie contract, that
331
CONTEACT.
332
did not prevent the contract from being com-
plete and sufficient if the parties intended it
should be and so treated it. Hussey v. Payne
(48 L. J. Ch. 846 ; 4 App. Cas. 311) applied.
lb.
Waiver of Term Solely in his Favour by
Vendor/ — The provision in the contract as to
securing the purchase money, being a term
solely for the benefit of B., the vendor, might
be waived by B. at the Bar. Hawksley v.
Outram (61 L. J. Ch. 429; [1892] 3 Ch. 359)
applied. lb.
Ticket — Conditions — Whether Conditions
Brought to Purchaser's Notice — Negligence.
— The plaintiff purchased a ticket and went
to a football ground where a match was being
played. On the ticket purchased by him there
was a note to the effect that it was agreed
between him and the defendants, who were
the members of the committee of a football
union, that the defendants should not be liable
for any injury caused to him through the
overcrowding of the stand or the conduct of
the spectators ; and a large number of red
posters exhibiting a notice to that effect were
placed in conspicuous positions inside the
entrances to the ground. While the match
was in progress there was a considerable
amount of swaying to and fro of the people
crowded on the stand, and the plaintiff was
thereby carried over the place where a post
forming part of the barrier had been snapped
off, leaving a hole, and his foot was caught in
the hole and his leg injured. In an action
claiming damages in respect of that injury,
the jury found — first, that the plaintiff knew
that there was printed matter on the ticket
purchased by him ; secondly, that the plaintiff
did not know that the printing contained con-
ditions upon which he was allowed to enter
the ground: thirdly, that the defendants did
not do what was reasonably sufficient to give
the plaintiff notice of the conditions : and
fourthly, that the accident happened owing to
the negligence of the defendants : — Held, that
the questions whether the defendants had taken
reasonable care to give the plaintiff notice of
the conditions of the contract, and whether
there had been negligence on the part of the
defendants, were entirely for the jury, and
that the Court could not interfere with the
verdict. Skrine v. Gould. 29 T. L. E. 19—
C.A.
2. Statute of Frauds.
See <iUo Vol. IV. 32, 19.5G.
Not to be Performed within Space of One
Year — Required by Law to be in Writing —
Variation by Parol Agreement — Rescission.]
— A contract required by law to be in writing
may be varied by a parol agreement, provided
that the whole of the terms of the new parol
agreement, including those incorporated from
the original agreement, are such that it is not
necessary that they should be in writing, the
variation in effect amounting to a rescission of
the original agreement. If, however, the new
parol agreement is, by reason of its terms,
required by law to be in writing, it is of no
effect, and the original agreement is still
binding. Williams v. Moss's Empires, Lim.,
84 L. J. K.B. 1767; [1915] 3 K.B. 242;
113 L. T. 560 ; 31 T. L. R. 463— D.
Agreement for Service — Time for Com-
mencement— Part Performance.] — The defen-
dant engaged the plaintiff as medical assistant,
at the rate of 2001. a year for the first year,
and afterwards at a rate to be agreed upon,
with the use, rent free, of a house. The
defendant wrote a letter to the plaintiff in
which these terras were embodied, but the
letter did not state the date when the services
to be rendered by the plaintiff were to com-
mence, although it was clear from the letter
that they were not to commence until a future
date : — Held, first, that as the letter did not
shew the date at which the services were to
commence, it was not a sufficient memorandum
in writing to satisfy the Statute of Frauds ;
and secondly, that as the contract was in
substance for personal service, the occupation
of the house by the plaintiff being merely to
be enjoyed by him with a view to his rendering
those services, it was a contract to which the
doctrine of part performance did not apply to
take the case out of the Statute of Frauds.
Elliott V. Roberts, 107 L. T. 18; 28 T. L. E.
436 — Lush, J.
The plaintiff, who was in the service of
the defendants in one capacity, received a
letter from them offering him a new engage-
ment in another capacity for seven years, the
letter concluding with the words " acceptance
of the above will oblige." The plaintiff wrote
in reply accepting the offered terms in their
entirety, and saying he would start " as from
now " in his new employment. In an action
by the plaintiff to recover damages for breach
of this agreement the defendants contended
that as no date was mentioned in writing at
which the engagement was to begin or end
there was no sufficient written contract to
satisfy section 4 of the Statute of Frauds : —
Held, that section 4 of the Statute of Frauds
was sufficiently complied with, as there was
a continuing offer of immediate employment,
which offer was accepted from the date of
the plaintiff's letter of acceptance. Curtis V.
B.U.R.T. Co., 28 T. L. R. 585— C.A.
Interest in Land — Contract not to be Per-
formed Within a Year.] — A verbal agreement
by a wife to keep her husband indemnified in
respect of the rent of a house is not an agree-
ment or contract to which section 4 of the
Statute of Frauds applies. Banks, In re;
Weldon v. Banks. 56 S. J. 362— Neville, J.
Sufficiency of Memorandum.] — The plain-
tiff instructed an auctioneer to put up for
sale by public auction tho grazing of a por-
tion of her lands for a period of six months.
The auctioneer duly offered the grazing for
sale and accepted the bid of the defendant,
making at the same time the following entry
in his book : " Miss Crane's meadows — Ber-
nard Naughten, 13/. 10s." -.—Held, that if
the Statute of Frauds applied to such a
contract, the above note or memorandum
was insufficient to satisfy the statute. Crane
V. Naughten, [1912] 2 Ir. E. 318— K.B. D.
333
CONTEACT.
384
Auction — Entry by Auctioneer of Name
of Purchaser on Margin of Particulars of Sale.]
— An auctioneer at a sale of land entered on
the margin ol' his copy of the particulars and
conditions of sale, against the lot, the name
of the highest bidder for the lot and the amount
of the bid, but there was nothing to indicate
that he was the purchaser of the lot. The
bidder did not sign the memorandum of agi-ee-
ment contained in the particulars or pay any
deposit : — Held, that the entry by the
auctioneer was not a sufficient note or
memorandum in writing to satisfy the require-
ments of section 4 of the Statute of Frauds.
Dewar v. Mintoft, 81 L. J. K.B. 885 ; [1912]
2 K.B. 373; 106 L. T. 763; 28 T. L. K. 324—
Horridge, J.
Letter by Purchaser Repudiating Con-
tract, but Containing Terms of Contract.] —
The bidder subsequently wrote letters to the
vendor and his agent in which he repudiated
his liability under the contract, but in which
he, at the same time, set out all the terms of
the bargain and referred to the particulars of
sale : — Held, that the letters contained a
sufficient memorandum in writing to satisfy
the statute. lb.
Purchaser's Name Written by a Third
Person at the Instance of the Purchaser.] — A
ijiemorandum of a transaction of purchase,
•v^ ritten at the time when and the place where
such transaction took place, and at the pur-
chaser's dictation, by a relative of the vendor,
who was present when the transaction was
entered into, is a sufficient memorandum or
note of the agreement in writing signed by
tiie party to be charged therewith, or some
nther person thereunto by him lawfully
authorised, to satisfy the 4th section of the
Statute of Frauds. Brooks v. Billingham,
56 S. J. 503— Neville, J.
Signature by Agent — Sufficiency.] — On
I'^ebruary 11, 1911, the defendant verbally
agreed with G. for the purchase of certain
property for 700L, and paid 50/. by way of
deposit. G. was then acting on behalf of the
plaintiff as an undisclosed principal, but he
s-ubsequently set up that he had agreed to buy
the property from the plaintiff for 600Z., and
that in the transaction with the defendant he
was acting on his own account. In this state
of things much correspondence and negotiation
took place between the plaintiff's solicitors and
the defendant's solicitors, in the course of
which it was arranged that the plaintiff should
defend the action brought by G. for the specific
performance of the alleged contract between
them, and that the defendant should help the
plaintiff by giving evidence in that action for
him. G.'s action against the plaintiff was
hoard on November 28, 1911, "and in the result
it was dismissed with costs. The defendant
having declined to complete the purchase, the
plaintiff brought this action for specific per-
formance. To this action the defendant
pleaded that there was no sufficient memo-
randum or note signed by him or any one
authorised by him to satisfy the Statute of
Frauds. It appeared that during the corre-
spondence over the action of G. against the
plaintiff the plaintiff's solicitors had approached
the defendant, through his solicitors, for a
statement, with a view to his giving evidence
for the plaintiff in his action against G. The
defendant had accordingly prepared a state-
ment and also some answers to questions asked
by the plaintiff's solicitors, and had sent them
to his solicitors, who had forwarded them on to
the plaintiff's solicitors. These were now relied
upon by the plaintiff as a sufficient note or
memorandum to satisfy the Statute of Frauds.
Further, the plaintiff was allowed at the trial
to amend his claim and to allege part perform-
ance. It was contended for the defendant that,
first, his solicitors were not acting as his
agents, but as agents for the plaintiff in
obtaining a proof from him ; and secondly, that
in any case the authority to his solicitors did
not extend to signing a note or memorandum
of the contract on his behalf : — Held, that the
first contention was untenable. That as to
the second contention, the authority given by
the defendant to his solicitors was an authority
to forward to the plaintiff's solicitors certain
particular documents, and although the defen-
dant might not have been contemplating that
those documents would form a note or
memorandum sufficient to satisfy the Statute
of Frauds, that did not invalidate the authority
to forward the documents or prevent all the
legal consequences flowing from the forwarding
of them which would undoubtedly have flowed
from it had the defendant forwarded the state-
ments himself and signed the letters inclosing
the statements himself. Held, further, that
there was sufficient evidence of part perform-
ance. Daniels v. Trefusis, 83 L. J. Ch. 579;
[1914] 1 Ch. 788; 109 L. T. 922; 58 S. J. 271
— Sargant, J.
Letter Inclosed in Envelope Addressed to a
Party.] — Where it is proved or admitted that
a letter has been sent to and received by a
party inclosed in an envelope addressed to
that party, the letter and envelope together
constitute one document or memorandum in
writing sufficient to satisfy the Statute of
Frauds. Pearce v. Gardner (66 L. J. Q.B.
457; [1897] 1 Q.B. 688) applied. Last v.
Hucklesbtj, 58 S. J. 431— C.A.
Agreement not to be Performed Within a
Year.] — A contract of service for a period of
more than a year terminable at any time by
six months' notice on either side is within
section 4 of the Statute of Frauds, and cannot
be enforced unless there be a memorandum
thereof in writing. Hayiau v. Ehrlich, 81 L. J.
K.B. 397; [1912] A.C. 39; 106 L. T. 1;
56 S. J. 186; 28 T. L. K. 113— H.L. (E.)
Decision of the Court of Appeal (81 L. J.
K.B. 162; [1911] 2 K.B. 1056) affirmed. /{).
Dobson V. Collis (25 L. J. Ex. 267;
1 H. & N. 81) and Acramaji, Ex parte;
Pentrcquinea Fuel Co.. in re (31 L. J. Ch. 741 ;
4 De G. F. & J . 541), followed. Peter v. Comp-
ton (Skinner, 353) distinguished. McGregor
V. McGregor (57 L. J. Q.B. 591; 21 Q.B. D.
424) considered and explained. Observations
in Fenton v. Emblers (3 Burr. 1278) and Wells
V. Horton (5 L. J. (o.s.) C.P. 41; 4 Bing. 40)
disapproved. 76.
835
CONTEACT.
336
Sale of Goods — Acceptance of Part of the
Goods by Purchaser.] — A contract for the sale
of goods which is not in writing signed by the
party to be charged therewith, and which is
not to be performed within the space of one
year from the making thereof, is unenforceable
under section 4 of the Statute of Frauds,
notwithstanding that it comes within section 4
of the Sale of Goods Act, 1893, by reason of
the acceptance by the buyer of part of the
goods so sold. Prested Miners Gas Indicating
Electric Lamp Go. v. Garner, 80 L. J. K.B.
819; [1911] 1 K.B. 425; 103 L. T. 750;
27 T. L. R. 139— C.A.
B. PAETIES TO CONTRACT.
See also Vol. IV. 79, 1965.
Persons Entitled to Sue — Sale of Goods —
Conditions as to Sale at Minimum Price.] —
The plaintiffs agreed with D. as a middleman
to sell Dunlop tyres. T>. was to get certain
discounts, and bound himself not to sell below
certain prices, and not to sell to purchasers
who would not give a similar undertaking
maintaining prices. By an agreement, the
parties to which were D. and the defendants,
the latter agreed not to alter, remove, or
tamper with the marks or numbers on Dunlop
motor tyre covers or tubes, and not to sell
such covers or tubes below list prices. This
agreement also contained the following clause :
'■ We [the defendants] agree to pay to the
Dunlop Company the sum of 5/. as liquidated
damages " for every tyre sold below list price;
" without prejudice to any other remedies
which you or the Dunlop Company may have."
The defendants having sold two tyres below list
prices, the plaintiffs claimed an injunction and
damages : — Held , that there was no considera-
tion given by the plaintiffs to the defendants,
or at the defendants' request, and consequently
there w'as no enforceable contract between the
plaintiffs and the defendants, and that there-
fore the plaintiffs were not entitled to the relief
claimed. Dunlop Pneumatic Tijre Co. v.
Selfridge <f Co., 84 L. J. K.B. 1680; [1915]
A.C. 847; 113 L. T. 386; 59 S. J. 439;
31 T. L. R. 399— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 923; 30 T. L. R. 250) affirmed. 76.
Contract for Personal Service — Agreement to
Devote Whole Time — Breach of Contract —
Negative Stipulation — Injunction.] — A skipper
contracted to devote the whole of his time,
attention, ability, and energies to the perform-
ance of his duties as skipper in a trawler, the
property of his employers, and not to give his
time to any other business or occupation : —
Held, that an injunction could not be granted
to restrain him from obtaining other employ-
ment, as that would practically amount to
enforcing a specific performance of the contract.
Chapman v. Westerly, 58 S. J. 50 —
Warrington, J.
C. THE MATTER OF CONTRACT.
1. CONSIDER.'VTIOX.
See also Vol. IV. 90, 1967.
Agreement between Directors of Company to
Forego Fees — Liquidator of Company Party
to Agreement — Subsequent Claim by Director
for Fees — Right of Company to Set up Agree-
ment.]— By a verbal agreement between the
liquidator, on behalf of the plaintiff company,
and the directors of the company, including
the defendant, and by the directors mutually
with each and all the others, it was agreed
that each of the directors, including the defen-
dant, should forego any claim to any unpaid
balance of directors' fees. Subsequently, on
being sued by the plaintiff company for goods
sold and delivered and for work done, the
defendant counterclaimed for director's fees
earned previously to the above-mentioned
agreement : — Held, that the agreement was
binding, and was a good answer to the counter-
claim. Slater v. Jones (42 L. J. Ex. 122;
L. R. 8 Ex. 186) applied. West Yorkshire
Darracq Agencr), Lim. v. Coleridge, 80 L. J.
K.B. 1122 ; [1911] 2 K.B. 326 ; 105 L. T. 215 ;
18 Manson, 307— Horridge, J.
Sale of Goods — Price Maintenance Agree-
ment— Re-sale — Similar Agreement — Re-sale
by Original Purchaser — Principal or Agent for
Undisclosed Principal.] — By a contract made
between D. ifc Co. and the appellants, in con-
sideration of the appellants allowing them
certain discounts off their list prices for their
goods, D. & Co. agreed to purcliase goods to a
certain amount from the appellants, and
undertook not to re-sell such goods to private
customers at less than the list prices of the
appellants, and to pay a penalty for any breach
of such undertaking ; but they were at liberty
to sell such goods to persons in the trade at
less than the list prices on obtaining from
them a similar undertaking as to re-sales.
D. & Co. sold some of the goods to the respon-
dents, who were in the trade, at discounts less
than they had themselves obtained from the
appellants, and obtained a similar undertaking
from them as to re-sales. The respondents
afterwards, in breach of their undertaking, sold
some of the goods to a private customer at
less than the appellants' list prices, and the
appellants brought an action against them for
penalties : — Held, that, assuming that the
undertaking of the respondents as to re-sales
was given to D. & Co., not as principals, but
on behalf of the appellants as undisclosed
principals, there was no consideration moving
from the appellants to the respondents to
support that undertaking, and that the action
could not be maintained. Dunlop Pneumatic
Tyre Co. v. Selfridge .£• Co., 84 L. J. K.B.
1680 ; [1915] A.C. 847 ; 113 L. T. 386 ; 59 S. J.
439; 31 T. L. R. 399— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 923) affirmed. /{).
Employment at Certain Salary for Fixed
Period — New Agreement During Period for
Less Salary.] — By an agreement in writing
the plaintiff entered the defendants' employ-
ment for a period of two years at a certain
salary, and it was provided that if the defen-
dants' business was discontinued during that
period the agreement should cease to be of any
effect. When war broke out the defendants'
business diminished, and they had to consider
whether they would close it altogether. Conse-
quently the parties made a new written
agreement, by which the plaintiff agreed to
337
CONTRACT.
338
accept a less salary during the war provided
that after the war the old agreement should
be revived. For some time the plaintiff
accepted the reduced salary, and then brought
an action for salary at the old rate : — Held,
that there was consideration for the new
agreement, and the action failed. Raggow v.
Scougall d Co., 31 T. L. E. 564r-D.
Sale of Estate — Shares in New Company —
Issue — Sanction of Treasury — Condition as to
Time of Payment.] — The defendant company
contracted to sell certain estates to the
plaintiff company, in return for a sum in cash
and shares in a company agreed to be formed,
the consideration to be paid by a fixed date or
not less than a month after the sanction of the
Treasury should have been obtained for the
issue of the capital of the new company. The
terms of the contract shewed that it was to be
performed in a short time. The Treasury
refused to sanction the issue : — Held, that the
plaintiff company was not entitled to have the
contract performed, as the contract did not
contemplate an ultimate sanction by the
Treasury after refusals extending over an
unlimited time. East Indies Commercial Co.
V. Nilambur Rubber Estates, 59 S. J. 613;
31 T. L. R. 500— Sargant, J.
2. Impossible Contracts.
See also Vol. IV. 141, 1969.
Impossibility of Performance.] — In 1907 a
tradesman agreed with an advertising con-
tractor to take six advertisement slides on
the cars " running at Dumbarton," for a
period of five years at a weekly rent. At the
date of the contract the tramways in Dum-
barton belonged to the X company, and there
were only sis cars, and these ran at frequent
intervals backwards and forwards in the town
of Dumbarton. The tramways were after-
wards taken over by the Y company, which,
in June, 1908, extended the tramway routes
into the country beyond the burgh of Dum-
barton, and increased the number of the cars
to thirty, and thereafter the six cars on which
the tradesman's advertisement appeared were
only used at infrequent intervals, and ran not
only in Dumbarton, but over the whole
extended routes. The tradesman having
refused to pay the rent under the contract
after June, 1908, the advertising contractor
sued him to recover payment : — Held, that
after the date on which the tramway system
was taken over and extended by the Y com-
pany the contractor was not in a position to
implement the contract, as the cars on which
the tradesman's advertisements appeared were
no longer " running at Dumbarton " within
the meaning of the contract ; that the contract
accordingly came to an end at that date ; and
that the contractor could not recover rent from
the tradesman after that date. Abrahams v.
Campbell, [1911] S. C. 358— Ct. of Sess.
As to Effect of War.]— 5ee War.
3. Illegal Contracts.
a. Generally.
See also Vol. IV. 150, 1975.
Duty of Court.] — Where the person invoking
the aid of the Court is himself implicated in
the illegality, the Court will not allow itself
to be made an instrument to enforce an illegal
agreement, whether the defendant has pleaded
the illegality or not. Robinson's Settlement,
In re ; Gant v. Hobbs, 81 L. J. Ch. 393 ; [1912]
1 Ch. 717; 106 L. T. 443; 28 T. L. R. 298
— C.A.
If a contract and the surrounding circum-
stances are fully before the Court it must
pronounce on the legality of the transaction,
but if all the circumstances are not before the
Court it may not do so unless the contract is
unlawful upon the face of it. North-Western
Salt Co. V. Electrolytic Alkali Co., 83 L. J.
K.B. 530; [1914] A.C. 461; 110 L. T. 852;
58 S. J. 338; 30 T. L. R. .313— H.L. (E.)
Contract Void at Common Law — Trustee in
Bankruptcy — Agreement to Share Fees with
Creditor.] — The test whether a claim con-
nected with an illegal agreement can be
enforced is whether the plaintiff requires any
aid from the illegal agreement to establish his
case. Farmers' Mart v. Milne, 84 L. J. P.C.
33; [1915] A.C. 106; [1914] S. C. (H.L.) 84;
111 L. T. 871 ; [1915] H. B. R. 33— H.L. (Sc.)
The respondent was manager for the appel-
lants, who carried on business as auctioneers,
valuers, livestock salesmen, and land surveyors.
By an agreement made between the appellants
and the respondent it was agreed that the
respondent should be entitled, with the consent
of the appellants, to undertake any trusteeship
or ofiice involving the management of any
estate, the fees receivable, after the deduction
of out-of-pocket expenses, to be pooled with all
fees and commissions derived by the appellants
from any sales or valuations in connection with
such estate, and to be divided as therein
agreed, " provided always that before any such
division shall take place there shall out of the
said proceeds be paid to the " appellants " the
balance of any debt remaining due to them
from such estate after giving credit for all
sums received or falling to be received on
account of such debt." In an action brought
by the appellants against the respondent under
the agreement for an account of fees received,
— Held, that the agreement was void as being
a fraud upon the Bankruptcy Acts, and that
the action could not be maintained. lb.
Decision of the Court of Session in Scotland
([1914] S. C. 129) affirmed. lb.
As to Effect of War.]— See War.
b. Contrary to Public Policy.
See also Vol. IV. 154, 1975.
Newspaper Advising Canadian Investors —
Covenant not to Comment on Particular Cana-
dian Company.] — Where a newspaper purports
to give advice to persons desirous of dealing in
Canadian land and other Canadian invest-
ments, and comments for this purpose upon
Canadian companies, a covenant by its pro-
prietors with a person interested in and a
director of a Canadian land company not to
comment upon that company, its directors,
business, or land, or any company with which
the proprietors have notice that that company
is connected or concerned, is void as being
unreasonably in restraint of trade. Such a
covenant is in those circumstances also void
as being contrary to public policy. So held by
339
CONTEACT.
340
Pickford, L.J.. and Warrington, L.J. Deci-
sion of Atkin. J. (31 T. L. E. 84), affirmed.
Neville v. Dominion of Canada News Co.,
84 L. J. K.B. 210.5; [1915] 3 K.B. 556;
31 T. L. E. 542— C. A.
Agreement for Adyertisement of Theatre —
Fictitious Legal Proceeding.] — The plaintiffs,
a husband and wife, entered into agreements
for reward with the defendant, who was the
lessee of a theatre, to carry out a scheme for
the purpose of advertising the theatre. The
scheme was as follows : The female plaintiff
and another lady were to occupy stalls at a
matinee performance at the theatre attired in
ultra-fashionable hats calculated to interrupt
the view of other members of the audience.
A seat immediately behind them was to be
occupied by a gentleman who was to request
the ladies to remove their hats, and, upon
their refusing to do so, the defendant was to
be summoned and to invite the parties into the
corridor. He was then to request the ladies
either to remove their hats or to leave the
theatre, and. upon their refusing to accede to
either request, he was to eject them by com-
mitting the technical assault of laying his hand
upon the shoulder of one of them. The ladies
were then to summon the defendant for an
assault, and he was to defend himself upon
the ground that he was justified in acting as
he had for the purpose of protecting the con-
venience of his audience. The soheme was
duly carried out, and the summons was dis-
missed by the magistrate. Actions were
brought by the plaintiffs to recover the
amounts due from the defendant for their
services in connection with the carrying out of
the scheme : — Held, that the agreements were
illegal and unenforceable as being against
public policv. Dann v. Curzon. 104 L. T. 66:
55 S. J. 189 : 27 T. L. E. 163— D.
Agreement to Refrain from Prosecution.l —
In an action brought by a firm against a
former employee to recover a sum which he
was alleged to have embezzled, the pursuers
founded on a promissory note granted by him
to them for this sum, and on a letter from
him admitting that he had used the firm's
money and acknowledging their kindness in
not prosecuting him. The defender averred
that the pursuers had induced him to sign
these documents by threatening that other-
wise they would prosecute him ; and pleaded
that this was a pactum ilUcitum. and, accord-
ingly, that the documents could not be
founded on against him : — Held, that even if
an agreement to refrain from prosecuting the
defender would have been unlawful, no such
agreement had been relevantly averred.
Opinion reserved as to whether such an agree-
ment would be a pactum illicitum. Lamson
Paragon Supply Co. v. MacPhail, [1914] S. C.
73— Ct. of Sess.
Covenant by Co-respondent in Divorce Suit
not to Come within a Radius of Ten Miles of
Petitioner's Residence — Breach — Injunction. ^
—The plaintiff presented a petition for divorce
from his wife on the ground of adultery, and
the defendant was made a co-respondent.
Subsequently an arrangement was come to
by which the petition was to be dismissed
on the defendant's covenanting not to go
within ten miles of the plaintiff's residence.
Accordingly a deed of May 1, 1911, was exe-
cuted by which the defendant covenanted that
he would not during fifteen years go within a
radius of ten miles of the plaintiff's residence
upon any pretext whatever without the plain-
tiff's consent. The sum of 3,000Z. was paid
by the defendant to the trustees of the
deed to be held by them in trust for
the plaintiff in case of a breach of the
covenant, and the petition was dismissed.
The defendant having committed a breach of
the covenant by going within the area, the
plaintiff claimed an injunction to restrain the
breach of the covenant, and also payment of
the 3,000L : — Held, that the covenant was not
void as being against public policy, or as
infringing the liberty of the subject, and that
the plaintiff was entitled to an injunction and
also to an order on the trustees of the deed
to pay to him the 3,000i. Upton v. Hender-
son, 106 L. T. 839; 56 S. J. 481; 28 T. L. E.
398— Eve, J.
Payment to Director to Promote Interests of
Particular Shareholder.] — A company, having
spent all its money, applied to the defendant
to supply additional capital by taking shares.
.The defendant agreed to do so on terms, one
of which was that he should have representa-
tives on the board. The company having ap-
proved this agreement in general meeting,
the defendant appointed the plaintiff to act
as his representative to look after his (the
defendant's) interests, for which services the
defendant was to pay the plaintiff 2001. a
year out of his own pocket so long as the
plaintiff remained a director. In an action
brought by the plaintiff to recover remunera-
tion calculated at the rate of 200L a year,
the jury found that the defendant had agreed
to pay the plaintiff 200Z. a year so long as
he remained a director, and they further found
that the agreement did not contemplate that
the plaintiff should promote the interests of
the defendant, even though such interests were
not identical with those of the whole body
of shareholders : — Held (Vaughan Williams,
L.J., dissenting), upon those findings, that
the bargain was not corrupt, the company's
assent to and approval of the agreement
between the plaintiff and the defendant being
sufficient to divest the transaction between
the parties of any character of illegality, and
that the plaintiff was therefore entitled to
recover his remuneration. Kregor v. Hollins,
109 L. T. 225— C. A.
Undischarged Bankrupt — Agreement to Pay
Debt Incurred Prior to Bankruptcy — Validity.]
— The plaintiff recovered judgment against the
defendant for 913L lis., and subsequently a 1
receiving order was made against the defendant I
and he was adjudicated bankrupt. No part of ^
the 913/. lis. had been paid, but the plaintiff
lodged no proof in the bankruptcy. While the
defendant was still undischarged, the plaintiff
lent 15/. to the defendant in consideration of a
promise by the defendant to pay what he owed
prior to the receiving order just as if such
receiving order had not been made. In an
341
CONTEACT.
342
action by the plaintiff against the defendant to
recover the 913Z. lis. it was admitted that
no dividend could be paid by the defendant's
estate : — Held, that the contract was valid and
that therefore the plaintiff was entitled to
recover. Wild v. Tucker, 83 L. J. K.B. 1410;
[1914] 3 K.B. 36; 111 L. T. 250; 21 Manson,
181; 30 T. L. R. 507— Atkin, J.
Effect of War on Contracts." — See War.
c. Contrary to Statute.
See also Vol. IV. 159, 1976.
The plaintiffs were confectionery manufac-
turers, and the defendants ordered from them
confectionery to be delivered during August
and September, 1914, for export. No time
was specified in the contracts, and the usual
course of business between the parties was
that goods should be delivered within six or
eight weeks. It was an implied term of the
contracts that the goods should be exported,
so that the plaintiffs would get the benefit of
a drawback to which the goods were subject.
On August 10 a proclamation prohibited the
export of sugar, and on August 14 the plain-
tiffs cancelled the contract. On August 20
the embargo on the export of sugar was
removed by a further proclamation : — Held,
that the plaintiffs ought to have waited a
reasonable time after August 10 to see
whether they could carry out the contracts
and that as they had not done so the
defendants were entitled to recover against
them damages for failure to perform them.
Miller <f Co. v. Taylor .f- Co., 60 S. J. 140;
32 T. L. R. 161— C.A. Reversing, 112 L. T.
995— Rowlatt, J.
d. Contrary to Morality.
See also Vol. IV. 173, 1977.
Agreement for Letting Premises to Kept
Mistress — Right of Landlord to RecoYer Rent.]
—The plaintiff let a flat to the defendant, a
spinster. At the time of letting the plaintiff's
agent knew that the defendant was the mis-
tress of a certain man who visited her at the
flat ; that the rent of the flat would come
through the defendant being a kept woman ;
and that the man whose mistress she was
would find the money for the rent. Certain
rent not having been paid by the defendant,
the plaintiff sued her to recover it : — Held,
that, the flat being let for an immoral pur-
pose, the plaintiff was not entitled to recover.
Upfill V. Wright, 80 L. J. K.B. 2.54; [1911]
1 K.B. 506; 103 L. T. 834; 55 S. J. 189;
27 T. L. R. 160— D.
e. In Restraint of Trade.
i. General Principles.
See also Vol. IV. 189, 1978.
In construing a covenant in restraint of
trade the true object of the prohibition must
be discovered by looking at the whole con-
tract, and the particular clause in question.
Hadsley v. Dayer-Smith, 83 L. J. Ch. 770;
[1914] A.C. 979; 111 L. T. 479; 58 S. J. 554;
30 T. L. R. 524— H.L. (E.)
Trading Corporation — Action to Enforce Con-
tract— No Plea of Illegality — Right to Raise
Question of Illegality.] — If a contract and the
surrounding circumstances are fully before the
Court it must pronounce on the legality of the
transaction, but if all the circumstances are not
before the Court it may not do so unless the
contract is unlawful upon the face of it.
North -Western Salt Co. v. Electrolytic Alkali
Co., 83 L. J. K.B. 530; [1914] A.C. 461;
110 L. T. 852; 58 S. J. 338; 30 T. L. R. 313
—H.L. (E.)
Therefore in an action on a contract, where
the defendant had deliberately abstained from
raising the question of the legality of the
contract on the pleadings, the Court is not
justified in holding the contract bad, simply
as being in restraint of trade, in the absence
of evidence that the restrictions imposed were
unreasonable, or that it was contrary to public
policy as being injurious to the interests of the
community. lb.
ii. Reasonableness.
See also Vol. IV. 191, 1982.
Advertising Agent — Manager — Covenant not
to Engage in Similar Business in United
Kingdom — Restraint too Wide.] — A covenant
by an employee of an advertising agent that
he would not carry on, or be engaged directly
or indirectly in, any similar business in any
part of the United Kingdom is too wide, and
therefore void. Stuart v. Halstead, 55 S. J.
598— Eve, J.
Agreement not to be Engaged for Three
Years after Termination of Employment in
Similar Business within Twenty-five Miles of
London.^ — The test of the validity of a cove-
nant in restraint of trade is whether it is
reasonable in reference to the interests both
of the parties concerned and of the public.
Mason v. Provident Clotliing and Supply Co.,
Lim.. 82 L. J. K.B. 1153: [1913] A.C. 724;
109 L. T. 449; 57 S. J. 739: 29 T. L. R. 727
—H.L. (E.)
A covenant in an agreement between a
master and servant, in a case in which the
servant was employed in a limited district
as a canvasser and collector, and had not
any special training or knowledge of trade
secrets, that the servant should not within
three years after the termination of his em-
ployment be engaged in any similar business
within twenty-five miles of London, or within
twenty-five miles of any place where he had
been employed by the master, was held to be
invalid as imposing restrictions greater than
were reasonably necessary for the protection
of the master in his business. lb.
Consultant Physicians — Lifelong Restraint
— Special Area — Prohibited Area.^ — The plain-
tiff carried on a pathological laboratory as a
consultant physician in the Harley Street
area of London, the principal quarter of the
consultant branch of the medical profession.
In 1906 the defendant, also a physician,
343
CONTKACT.
344
entered the plaintiff's employment as patholo-
gist and microscopist under an agreement by
which the defendant was " not to engage in
similar work within a distance of ten miles "
from the plaintiff's laboratory under a penalty.
In 1912 the defendant left the plaintiff's em-
ployment and commenced practising as a
pathologist on his own account within the
prohibited radius : — Held, upon the construc-
tion of the agreement, that the restriction
was for the life of the defendant. Held,
further (Swinfen Eady, L.J., dissenting), that
it was not necessary or reasonable that the
defendant should be restrained for his whole
life from carrying on his business in the
quarter where it could most profitably be
carried on, and that the restriction was there-
fore invalid. Bastes v. Russ, 83 L. J. Ch.
329; [1914] 1 Ch. 468; 110 L. T. 296;
58 S. J. 2.34; 30 T. L. E. 237— C. A.
Dealing in Indiarubber Goods.] — The defen
dant was employed by the plaintiffs as a
traveller in their solid tyre department under
an agreement which contained the following
clause : " On the termination by any means of
this agreement the [defendant] shall not for
a period of one year from the date of such
termination either alone or jointly or in part-
nership, or in the service of any other person
or persons, firm, or company whatsoever,
directly or indirectly, either by himself or as
agent, or otherwise, carry on or manage, or be
concerned, employed, or interested in the sale,
purchase, manufacture or other dealings in
indiarubber goods, whether wholesale or retail,
in any part of the United Kingdom, Germany,
or France." The defendant within one year
after leaving the plaintiffs' employment entered
the service of another company which was
engaged in the sale of indiarubber goods in the
'United Kingdom, whereupon the plaintiffs
claimed an injunction : — Held, that the
covenant, considering the duration of the
restriction, was not too wide or unreasonable
for the protection of the plaintiffs' business,
except that part of it which related to Germany
and France, in which countries the plaintiffs
sold no indiarubber goods, but that that part
of the covenant could be severed from the
other part ; and therefore that the plaintiffs
were entitled to an injunction on that footing.
The decision in Baines v. Geary (56 L. J. Ch.
935; 35 Ch. D. 154) is not reconcilable with
the decision in Baker v. Hedgecock (57 L. J.
Ch. 889 ; 39 Ch. D. 520) ; the view expressed
in the latter case is the correct one. Continental
Tyre and Rubber Co. v. Heath, 29 T. L. R.
308— Scrutton , J.
Contract of Service — Manufacturers of
Specialised Form of Maciiinery — Restriction in
United Kingdom — Skill and Experience
Acquired.! — The defendant was from 1901 to
1913 in the employment of the plaintiffs, who
were engaged in the manufacture of a highly
specialised form of machinery. Their business
was the leading one in the United Kingdom
in this class of machinery, and was spread
over a large part of the kingdom. In 1911
the plaintiffs and the defendant entered into an
agreement by which the defendant covenanted
that he would not at any time during a period
of seven years from the date of his ceasing to
be emploj'ed by the plaintiffs within the United
Kingdom carry on or be concerned in the sale
or manufacture of the class of machinery made
by the plaintiffs, or any business connected
with it : — Held (Phillimore, L.J., dissenting),
that to enforce this restriction against the
defendant would be to deprive him and the
public of much of the benefit of his skill and
experience which he had gained in the
plaintiffs' employ, and that the restriction was
greater than was reasonably necessary for the
protection of the plaintiffs in their business
and could not be enforced. Morris, Lim. v.
Saxelby, 84 L. J. Ch. 521; [1915] 2 Ch. 57;
112 L. T. 354; 59 S. J. 412; 31 T. L. R. 370
— C.A.
Interest of Covenantor — Public Policy —
Reasonableness.] — In considering whether con-
tracts in restraint of trade are enforceable
regard must be had to the interest of the
covenantor and not solely to the interest of
the covenantee. Different considerations will
arise in regard to the enforceability of such
contracts in cases between vendors and pur-
chasers of a business and cases between
employers and employees. lb.
Trading in West Africa — Acquisition of Trade
Secrets — Reasonableness of Restriction.! — The
defendant entered into an agreement with the
plaintiffs to serve them for five years as super-
vising agent at certain of their stations in
West Africa. The plaintiffs were export and
import merchants engaged in the West African
trade, bankers, and agents. The agreement
contained the following restrictive clause :
(8) The agent agrees that he will not, either
in Africa or in Europe or elsewhere, at any
time during the five years next following the
termination for any reason of his employment
under this agreement, directly or indirectly,
either alone or in partnership with or as agent,
manager, clerk, servant, or director, of any
person or persons or company or companies or
otherwise howsoever, and whether for his own
benefit or for the benefit of any other person
or persons, or company or companies (a) assist
or engage in the business of a trade or
merchant competing in any way with any
business at any time during his employment
carried on by the company within a radius of
fifty miles from a trading station in West
Africa now or during his employment estab-
lished, owned, or managed by the company, or
(b) trade or deal in relation to or in connection
with any such competing business with any
person or persons, company or companies now
or at any time hereafter during his employment
a customer or customers of the company or
otherwise dealing with the company, or solicit
or endeavour to obtain the custom or con-
nection of any such person or persons, company
or companies so far as concerns goods, mer-
chandise, or produce supplied, bought, or dealt
with in the course of the business of the com-
pany. Provided that this clause shall only be
enforceable so long as the company or its
assigns enforcing the same shall continue to
carry on or be carrying on such business or
part thereof": — Held, that the restriction
imposed by the clause was necessary for the
345
CONTEACT.
346
protection of the plaintiffs' business, and was
not void as being in restraint of trade.
Millers, Lini. v. Steedman, 84 L. J. K.B.
2057; 113 L. T. 538; 31 T. L. R. 413— C. A.
Shop Assistant.] — The defendant was em-
ployed by the plaintiff company as shop
assistant in their branch shop at Southend
under an agreement by which the defendant
agreed that he would not, for a period of two
years subsequent to his leaving the employ-
ment, " establish, carry on, or be engaged in,
or interested in ... a business of a similar
character to the business of the company
within the distance of two miles of any shop
for the time being belonging to the company
at which he has been employed wuthin the
twelve months prior to his leaving their
employ, nor solicit any of the customers of
the company." The defendant's duty was to
serve at the grocery counter in the plaintiffs'
shop, although for a short time he canvassed
for orders at the houses of the plaintiffs' regular
customers. Shortly after leaving the plaintiffs'
service, the defendant entered the employ-
ment in the like capacity of another company,
whose business was of a similar character to
that carried on by the plaintiffs, and whose
shop was within two miles of the plaintiffs'
shop. In an action by the plaintiffs to restrain
the defendant from continuing in the service
of this other firm in breach of the restrictive
covenant entered into by him, — Held, that the
defendant was " engaged " with the other firm
within the meaning of that expression in the
agreement, but that, having regard to the
nature of the defendant's employment, the
restrictive covenant was not reasonably neces-
sary for the protection of the plaintiffs'
business, and therefore could not be enforced.
Pearks v. Cullen,2% T. L. R. 371— Hamilton, J.
Monopoly.] — By a contract in writing the
plaintiffs agreed to buy from the defendants
72,000 tons of salt to be manufactured by the
defendants and delivered by them in about
equal monthly quantities over a period of four
years from January 1, 1908, to December 31,
1911. It was a term of the contract that
defendants should not manufacture salt beyond
the amount agreed to be delivered to the
plaintiff's, and a certain yearly quantity which
had to be delivered under an existing contract
to a third party and such further quantity as
the defendants might require for their own
use, but not for sale. The defendants had the
option of re-purchasing from the plaintiffs up
to 3,000 tons per annum of their own make
of table sale at the plaintiffs' then current
selling price for table salt, and, if they did
so re-purchase, thej' were to be elected distri-
butors of such quantity on certain terms which
prescribed limitations and restrictions, both as
to the class of buyers and as to price, packing,
and delivery charges. The defendants also
bound themselves during the four years not to
sell or dispose of land which they possessed
for salt-making purposes : — Held, that the
contract had not been shewn to be in unreason-
able restraint of trade, and that it was
therefore enforceable by the plaintiffs. North-
western Salt Co. V. Electrolytic Alkali Co.,
83 L. J. K.B. 530 ; [1914] A.C. 461 ; 110 L. T.
852; 58 S. J. 338; 30 T. L. R. 313— H.L. (E.)
Decision of the Court of Appeal ([1913]
3 K.B. 422) reversed. 76.
Part of Covenant Admittedly too Wide —
Severing Covenant.] — In 1908 the plaintiffs
and the defendant F. entered into an agree-
ment of employment and service, under which
F. was to be employed for a term of five years
as manager at Liverpool of the plaintiffs,
who were importers of and dealers in meat.
Their importing business was concerned with
Australian and New Zealand meat only,
though they also did a considerable general
wholesale meat business, which was not
confined to Australasian meat, but included
American meat. The area of the business was
limited almost entirely to Liverpool, Man-
chester, Nottingham, and other towns in the
Midlands and North of England. There was
practically no business at all in the South of
England, Wales, or Ireland, and very little
in Scotland. By the agreement of 1908 the
defendant F. covenanted that he would not,
for a period of one year from the determination
of the agreement, directly or indirectly carry
on or be concerned in carrying on within the
United Kingdom the trade or business of an
importer of meat or agent for importers of
meat, or any other trade or business similar
to any trade or business carried on during his
employment by the plaintiffs : — Held, that the
fact that the latter part of the covenant was
admittedly too wide did not invalidate the
former part, but that the covenant was sever-
able. Observations of Lord Moulton in Mason
V. Provident Clothing and Supply Co. (82 L. J.
K.B. 1153; [1913] A.C. 724) distinguished.
Netanas d- Co. v. Walker, 83 L. J. Ch. 380;
[1914] 1 Ch. 413 ; 110 L. T. 416 ; 58 S. J. 235 ;
30 T. L. R. 184— Sargant, J.
But held, that the limitation of the period
of restraint to one year was not sufficient to
validate the covenant if the area of restraint
was unreasonable. Ward v. Byrne (9 L. J.
Ex. 14; 5 M. & W. 548) followed. lb.
Held, also, that the covenant was unam-
biguous, and would not be construed so as
to limit it to the importation of Australian or
Australasian meat ; that both in this respect
and as to the area of restraint it was wider
than was required for the reasonable protection
of the plaintiffs ; and that it could not therefore
be enforced. 7b.
A covenant not to carrj' on or be interested
in the business of vendor of or dealer in real
or imitation jewellery for the period of two
years in the County of London. England,
Scotland, Ireland, "Wales, or any part of the
United Kingdom of Great Britain and Ireland
and the Isle of Man, or in France, the United
States of America, Russia, or Spain, or within
twenty-five miles of Potsdamerstrasse, Berlin,
or St. Stefan's Kirche, Vienna, is severable
both in respect of the nature of the business
and the area covered by it. Where therefore
the Court was of opinion that it was reasonably
necessary for the protection of the covenantee's
business it granted an injunction against the
covenantor's carrying on during the period
mentioned the business of a vendor of or dealer
in imitation jewellery in the County of London,
347
CONTKACT.
348
England, Scotland, Ireland, Wales, or any
part of the United Kingdom of Great Britain
and Ireland and the Isle of Man. Goldsoll v.
Goldma7i, 84 L. J. Ch. 228; [1915] 1 Ch.
292; 112 L. T. 494; 59 S. J. 188— C.A.
Order of Neville, J. (84 L. J. Ch. 63 ; [1914]
2 Ch. 603), varied. lb.
Qualified Covenant — Severable Contract —
Onus of Proof.] — The defendant entered the
employment of the plaintiffs, who employed
secret processes, under an agreement by which
he was to acquire knowledge of their manu-
factures in accordance with their secret
processes and to hold as confidential their
secrets or secret processes, and not at any
time to communicate any of the plaintiffs'
formulas, processes, or machinery to any
person, and not " within the British Empire
or the Continent of Europe for five years "
after leaving their employment, directly or
indirectly enter into or be engaged in the
business of manufacturing or selling carbon
papers and ribbons or in any business which
for the time being might be carried on by the
plaintiffs. After leaving the plaintiffs' employ-
ment the defendant, who had obtained parti-
culars of a secret machine of the plaintiffs' and
formulae and of materials used by them,
became manager to a company which manu-
factured goods similar to those of the plaintiffs :
— Held, on a motion for an interlocutory
injunction in an action to enforce the agree-
ment, that the defendant had made an
improper use of the plaintiffs' secret formulae
or processes of manufacture within the first
branch of the agreement, which did not extend
to processes in common use and to which
considerations of time and space did not apply,
and his breach of that part of tlie covenant
ought to be restrained. Caribonum Co. v.
Le Couch, 109 L. T. 587— C.A.
The covenant restraining the defendant from
engaging for five years in any business which
the plaintiffs might carry on would be too wide,
but was severable from the rest of the second
part of the agreement. The covenant in that
part being qualified both as to time and space,
the onus of proving that it was unreasonable
lay upon the defendant, and, the evidence
shewing that the covenant was necessary for
the proper protection of trade, this part of the
covenant was held not to be unreasonable, and
an interlocutory injunction granted in the
terras of the covenant down to the words
"carbon papers and ribbons." lb.
Covenant too Wide to be Reasonable — Repu-
diation of Contract Disentitling Master to Sue
on Covenant Contained in Contract.] — A
saleswoman covenanted with her employer
" not at any time during or after the deter-
mination of the employment . . . directly or
indirectly either on her own account or for
any other person or firm or company " to
solicit or entice away from the master " any
customer of, or any person or persons in the
habit of dealing with the master." There
were alleged breaches of this covenant, and
the master sued for an injunction. There was
a weekly agreement between the saleswoman
and employer, and the employer had dismissed
her with a week's wages in lieu of notice.
refusing to allow her to work out the week's
notice, which the saleswoman alleged to be a
repudiation of the contract disentitling him to
sue on the covenant forming part of it : —
Held, that the employer had fulfilled all his
obligation under the contract by paying a
week's wages, and had not therefore repudiated
his contract so as to disentitle him to sue.
General Bill-posting Co. v. Atkinson (78 L. J.
Ch. 77; [1909] A.C. 118) discussed. Konski
V. Peet, 84 L. J. Ch. 513; [1915] 1 Ch. 580;
112 L. T. 1107; 59 S. J. 383— Neville, J.
Held, also, that the covenant referred to any
customer — future or past — and was too wide to
be reasonable, and therefore not enforceable.
lb.
iii. Dealings with Particular Persons.
See also Vol. IV. 198, 1989.
Covenant not to Interfere vtfith Trade or
Customers Served from Particular Dairy —
Removal of Dairy to other Premises.] — The
defendant was engaged as a servant by B.,
a dairyman, of Evelyn's Dairy, 160 Edward
Street, New Cross, and the defendant agreed
with B., his assigns and successors that after
quitting the service he would not " interfere
with the trade and the customers served by
and from the dairy aforesaid." The plaintiffs
purchased B.'s business, it being part of the
agreement that B. should introduce the plain-
tiffs to his customers. The premises at 160
Edward Street being found unsuitable, the
plaintiffs moved the business to 95 High Street,
Deptford, which was about the same distance
from B.'s customers' houses as was 160
Edward Street. After being in the plaintiff's
service for some time, the defendant left them
and thereafter served customers of the plain-
tiffs who had been introduced by B. The
plaintiffs claimed to restrain the defendant
from committing a breach of his covenant by
interfering with the plaintiffs' trade or the
customers served by and from the plaintiffs'
dairy at 95 High Street, Deptford -.—Held,
that the action failed, as the covenant by the
defendant only related to customers served by
and from the premises at 160 Edward Street,
and none of those who had been served by the
defendant after leaving the plaintiffs' service
could be so described. Marshall £ Murray v.
Jones, 29 T. L. E. 351— Pickford, J.
iv. What Constitutes a Breach.
See also Vol. IV. 212, 1989.
Carrying on " the profession of a solicitor "
vifithin Prohibited Radius.]— On April 4, 1902.
the plaintiffs, a firm of solicitors, wrote
engaging the services of the defendant as
solicitor's clerk for advocacy and conveyancing.
By an undertaking signed April 16 the defen-
dant agreed not at any time during his
employment by the plaintiffs, or after the
determination thereof, to carry on within a
radius of five miles of B. the " profession of
a solicitor." In 1909 the defendant left the
service of the plaintiffs and took an office out-
side the prohibited radius. Thence he wrote
on behalf of a former client of the plaintiffs
living within the radius to a person also living
349
CONTRACT.
350
within the radius demanding payment of a
debt, and he subsequently drew an assign-
ment of the debt : — Held, by Eve, J., that
the madertaking formed part of the original
contract of service or was a condition of the
continuation of the service so that there was
consideration for it ; that to restrain the
defendant from carrying on " the profession
of a solicitor " was not too wide a restriction,
although he had been engaged specifically for
advocacy and conveyancing ; that the defen-
dant's acts were a " carrying on " of his
profession within the prohibited radius in
breach of the undertaking, and that the
injunction must be granted : — Held, by the
Court of Appeal, that the defendant had not
carried on the profession of a solicitor within
the prohibited radius. Edmundson v. Render
(74 L. J. Ch. 585; [1905] 2 Ch. 320) dis-
tinguished. Woodbridge v. Bella7ntj, 80 L. J.
Ch. 265; [1911] 1 Ch. 326; 103 L. T. 852;
55 S. J. 204— C. A.
Covenant not to Carry on Business of " Pro-
vision merchant " — Manufacture and Sale of
Margarine/ — A covenant not tt) carry on or
to be interested in the business of a provision
merchant within a certain area is not broken
by the manufacture and sale of margarine in
the prohibited area. Lovell if Christmas v.
Wall, 104 L. T. 85 ; 27 T. L. R. 236— C.A.
Improper Use of former Employer's Secret
Process.] — See Caribonum Co. v. Le Couch,
ante, ii. Reasonableness.
Outgoing Partner — Covenant not to Carry
on Business within a Radius of One Mile from
the Premises of the Partnership — Breach.] —
In articles of partnership between the appel-
lant and the respondent, who carried on the
business of house agents in London, there was
a clause that, on the dissolution of the partner-
ship for any cause, the outgoing partner should
not for a period of ten years carry on, directly
or indirectly, a similar business " within a
radius of one mile from the premises of the
said partnership." The partnership was dis-
solved, and the appellant, the outgoing partner,
opened an office at a distance of more than
one mile from the office of the partnership,
and acted as agent for the selling and letting
of houses within the radius : — Held, that the
respondent was entitled to an injunction to
restrain him from so acting. Turner v. Evans
(22 L. J. Q.B. 412; 2 E. & B. 512) approved
and followed. Hadsley v. Dayer-Smith,
83 L. J. Ch. 770; [1914] A.C. 979; 111 L. T.
479; 58 S. J. 554; 30 T. L. R. 524— H.L. (E.)
Sweep — Servant.] — B., a chimney sweep,
entered into an agreement for his employment
by a company engaged in the business of
chimney sweeping which contained the follow-
ing undertaking : " That he will give the
whole of his time and services to the company,
will not undertake any work or orders of any
kind except for the company and in their
name and on their behalf, nor carry on or
be concerned in carrying on the business of
a chin ney sweep, either by himself or in
conjunction with any other person or persons
now or at any time within a radius of three
miles of the above-mentioned station." After
leaving the employment of the company B.
was employed as a servant by a chimney
sweep, competing with the company within
the district specified in the clause : — Held,
that the clause did not apply to the engage-
ment of B. as a servant. Semble, Hill (t Co.
V. Hill (55 L. T. 769) differed from. Ramoneur
V. Brixey, 104 L. T. 809; 55 S. J. 480— D.
Apprenticeship Deed — Covenant by Appren-
tice to take Effect after Termination of
Apprenticeship — Breach — Right of Master to
Injunction.] — A covenant in an apprenticeship
deed, made while the apprentice is an infant,
to do or abstain from doing something after
the apprenticeship shall have terminated,
which covenant is reasonable and for the
benefit of the apprentice, is enforceable against
him. Gadd v. Thompson, 80 L. J. K.B. 272;
[1911] 1 K.B. 304: 103 L. T. 836; 55 S. J.
156 ; 27 T. L. E. 113— D.
An apprentice, an infant, covenanted that
he would not, after the apprenticeship should
have terminated, carry on the same trade as
his master within a specified area during a,
specified time. After the termination of the
apprenticeship he committed a breach of this
covenant. There was evidence that he could
not have been apprenticed except on the terms
of the covenant : — Held, that as the covenant
was a reasonable one, and for the benefit of
the apprentice, an injunction restraining him
from committing further breaches of it should
be granted. lb.
D. INTEEPEETATION OF COXTEACTS.
See also Vol. IV. 230, 1997.
Letter Putting Certain Construction on Con-
tract not Answered.] — Persons are not
estopped from denying the true construction
of a contract by failing to answer a letter in
which the other party states that the contract
bears a certain meaning. Leslie d- Co. v.
Works Commissioners, 78 J. P. 462 — Shear-
man, J.
"Month."] — A. wrote to B. offering to buy
land of B. at a certain price, specifying the
date for completion, and that the purchase
money should be paid as to a part down and
as to the residue within two years. " and to
be secured to your satisfaction." The offer
further stated that for the space of a month
B. was to be at liberty to accept the offer,
and if not accepted conditionally or otherwise
within that time the offer was to be considered
as withdrawn. The offer was dated Septem-
ber, but omitted the day : — Held, in an
action for specific performance, that " month "
meant " lunar month," and that the offer ran
from the day on which the offer was in fact
made. Morrell v. Studd, 83 L. J. Ch. 114;
[1913] 2 Ch. 648; 109 L. T. 628; 58 S. J. 12
— Astbury, J.
'* About four years."] — The appellant agreed
to sell liis interest in certain leasehold premises
to the respondent, the premium to be paid by
the latter to the former being at the rate of
\5l. a vear for " each and everv vear of the
351
CONTKACT.
352
existing term " of a certain under-lease held
by the appellant of other business premises,
which term the appellant, by a mistake, but
in perfect good faith, told the respondent was
" about four years." The appellant, the
mistake being discovered, claimed that the
premium should be 105i., as the lease of the
other premises was not " about four years,"
but seven years unexpired : — Held, that the
words " about four years " were dominant
words, and were not inserted in the agree-
ment merely as a statement of belief which
the respondent was not entitled to rely on.
Watkinson v. Wilson, 55 S. J. 617— H.L. (E.)
Agreement to Give "First option" of Pur-
chasing Premises.] — The plaintiffs, the free-
holders of certain property, entered into an
agreement with the defendants to give them
the " first option " of purchasing any premises
that might be designated for dairy purposes
on the said property : — Held, that this agree-
ment was void through uncertainty as to the
intention of the parties as to the meaning of
the words "first option." Manchester Ship
Canal Co. v. Manchester Racecourse Co.
(70 L. J. Ch. 468; [1901] 2 Ch. 37') distin-
guished. Ryan v. Thomas, 55 S. J. 364 —
Warrington, J.
Music-hall Artist — Engagement for Week —
Whether Salary Due before Completion of
Week.] — A music-hall artist was engaged to
perform for one week at 180Z. per week.
Clause 8 of the agreement provided that " in
case the artiste shall, except through illness
... or accident . . . fail to perform at any
performance the artiste shall pay to the
management as and for liquidated damages a
sum equal to the sum which the artiste would
have received for such performance ..."
Clause 12 provided that " the artiste shall
not assign, mortgage, or charge the artiste's
salary nor permit the same to be taken in
execution. No salary shall be paid for days
upon which the theatre is closed by reason
of national moui-ning. . . . No salary shall
be payable for any performance at which the
artiste may not appear through illness or his
own default. ..." Clause 16 provided (inter
alia) that " if the artiste shall commit any
breach of any of the terms and conditions of
this contract or of the rules, the manage-
ment . . . may forthwith determine this con-
tract, and the artiste shall have no claim upon
them for salary other than a proportion for
performances played, expenses, costs, or other-
wise " : — Held, that the agreement provided
for a salary for the week, and that unless some
of the events, mentioned in the foregoing
clauses, happened, no portion of the salary
became due to the artist until the end of the
week and until he had fully completed all the
performances contemplated. Mapleson v. Sears,
105 L. T. 639; 56 S. J. 54; 28 T. L. E. 30
— D.
" I agree to give 150/. a year, and I hope a
bit more " — Annuity or Allowance — Expression
of Intention.] — ()n the day before his daugh-
ter's wedding the father wrote to his future
son-in-law and said, " My dear Bert, — "When
you marry my daughter Lydia I agree to give
150L a year, and I hope a bit more." The
marriage took place, and the 1501. was paid
each year till the death of the testator, whose
executors now applied to have the document
construed by the Court : — Held, that the
document was only an expression to his
prospective son-in-law of an intention on the
part of the father that he would make his
daughter an allowance of 150L a year, to be
payable during the joint lives of the father and
daughter. Annandale, Ex parte; Curtis, in re
(4 Deac. & C. 511), followed. Llanelly Raihvay
V. London and 'North-Western Railway
(45 L. J. Ch. 539; L. E. 7 H. L. 550) distin-
guished. Lindrea, In re; Lindrea v. Fletcher,
109 L. T. 623; 58 S. J. 47— Sargant, J.
Contract Subject to Conditions — Strike
Clause in Small Print — Party Ignorant of
Strike Clause.] — A contract for fitting up a
shop was expressed to be subject to the
conditions set out in the specification, which
was typewritten and which contained a strike
clause in very small print as part of the
heading. The shop owners did not see the
strike clause and their attention was never
drawn to it until a dispute arose as to the
contract. In an action on the contract by
the contractors against the shop owners, —
Held, that in the circumstances the shop-
owners ought to have noticed the strike clause
and therefore they were bound by it. Sage d Co.
V. Spiers d- Pond, Lim., 31 T. L. E. 204r—
Eowlatt, J.
Grant of Right to Place Seats for Hire —
Derogation from Grant — Free Seats Placed
near Bandstand by Corporation.] — The plain-
tiff agreed with the defendants to supply a
band to perform on the sea front. It was a
term of the contract that the defendants should
hire out to the plaintiff, for a certain period at
a fixed rental, five hundred chairs, which the
plaintiff could let out to the public and was
bound to keep in repair and deliver up in good
order at the end of the term. The plaintiff
alleged that many of the chairs as delivered
to him were unfit for use, and further that the
defendants had been guilty of a breach of an
implied term in the contract in providing free
seats near the bandstand. He brought an
action for damages and the defendants counter-
claimed for damages for non-repair of the
chairs. The jury found that iome of the chairs
supplied by the defendants were unfit for use ;
that the plaintiff had suffered damage from
the proximity of the free seats ; and that the
plaintiff had failed to repair some of the chairs.
And they assessed the damages under these
three heads at 75/., 60/., and 3/. 4s. respec-
tively : — Held, by Avory, J., that the plaintiff
was entitled to judgment for the 75/. and for
the 60/., and that the defendants were entitled
to judgment on the counterclaim for the 3/. 4s.
But held, by the Court of Appeal, that as to
that part of the judgment which awarded the
plaintiff the 75/. the appeal must be dismissed ;
but that as to that part which awarded him
the 60/. the appeal must be allowed, as it could
not be laid down as a universal rule that
whenever something was done by the grantor
which had the effect of preventing or reducing
the profits which the grantee might reasonably
353
CONTRACT.
354
have expected to get out of the contract, there
was p. good cause of action, for in each case the
contract itself must be looked at and con-
sidered. Dare v. Bognor Urban Council,
76 J. P. 425 ; 10 L. G. K. 797 ; 28 T. L. E. 489
— C.A.
Termination — Notice.] — An agreement pro-
vided that it should continue until Decem-
ber 31, 1911, and should continue thereafter
subject to determination by twelve months'
previous notice. A notice was given in 1910
to determine the agreement on December 31,
1911 : — Held, that the notice was invalid and
of no effect. Marshall v. Brinsmead d Sons;
Brinsmead <£ Sons, In re, 106 L. T. 460;
56 S. J. 253— Eve, J.
Death — Agreement to Re-purchase
Shares " at such times as suit my convenience
and at no other times."] — \V. agreed to re-
purchase from the plaintiff certain shares for
1501. The agreement contained a provision that
W. should re-purchase them " at such times
as suit my convenience and at no other times,"
and a further provision that he should at the
date of the agreement hand to the plaintiff a
sum of 20L, and subsequently a further sum
of an unspecified amount, the 201. to be the
first of the payments towards the loOZ. W.
paid the plaintiff 20Z. and a further sum of
15/., but died before paying anything more.
In an action on the contract by the plaintiff
against W.'s administratrix, — Held, that the
contract was not put an end to by the death
of W., and that the plaintiff was entitled to
recover out of his assets llol., the balance of
the 150/. Barnes v. Wilson, 29 T. L. E. 639
— Pickford, J.
Course of Tuition — Inclusive Fee for Course
— Fee Payable by Instalments — Refusal of
Pupil to Receive Instruction or Pay Instal-
ments.]— The defendant entered into a con-
tract with the plaintiffs, who carried on a
system of education by correspondence, for a
course of tuition. The contract provided —
first, that the fee to be paid by the defendant
was to cover all instruction until he was
qualified for a diploma, provided he completed
the course of instruction in five years, and,
secondly, that the defendant should pay
14/ . 10s. for the course, 10s. at the time of
signing the application, and 10s. every month
thereafter imtil the fee was paid in full. The
defendant paid the deposit of 10s. on signing
the application, and one further instalment of
10s. Thereafter he informed the plaintiffs that
he would not go on with the course, and in
fact he did not go on with it. The plaintiffs
brought an action to recover 5/. 10s., being the
balance, after deducting the IZ. actually paid,
of the instalments in arrear at the time the
action was brought : — Held, that the plaintiffs
were entitled to sue for the instalments as
they became due, notwithstanding that the
defendant refused to receive the instruction,
and that they were not merely entitled to
damages for breach of the contract. Inter-
national Correspondence Schools v. Ayres,
106 L. T. 845; 28 T. L. E. 408— D.
Implied Term — Agency — Appointment of
Sole Agent on Commission for a Fixed Period
— Ceasing to Carry on Business.] — In deter-
mining whether under a contract by which a^
person is appointed sole agent on commission
for a fixed period, there is to be implied a term
that the principal will continue to carry on
business for that period, the first thing to be
considered is the language the parties them-
selves have used in the contract. A term
which is not expressed will not be implied
because the Court thinks it is a reasonable
term, but only if the Court thinks it is neces-
sarily implied in the nature of the contract
the parties have made. Where there is a
principal subject-matter in the power of one
of the parties, and an accessory or sub-
ordinate benefit arising by contract out of its
existence to the other party, the Court will
not, in the absence of express words, imply
a term that the subject-matter shall be kept
in existence merely in order to provide the
subordinate or accessory benefit to the other
party ; but where there is an express term
requiring the continuance of the principal
subject-matter, or giving the plaintiff a right
to a continuing benefit, the Court will not
imply a condition that the plaintiff's right in
this respect shall cease on certain events not
expressly provided for. By an agreement in
writing the plaintiff was appointed sole agent
for the defendants in a particular district for
a period of three years : — Held, on the con-
struction of the contract, that a term could not
be implied that the defendants would carry on
the business for the period of three years.
Lazarus v. Cairn Line, 106 L. T. 378;
17 Com. Cas. 107; 56 S. J. 345; 28 T. L. E.
244^Scrutton, J.
Warranty of Secrecy — Private Enquiry
Agent.] — A private enquiry agent in being
employed to watch a particular person does not
impliedly warrant the secrecy of those who
have been in, but have afterwards left, his
service. Easton v. Hitchcock, 81 L. J. K.B.
305 ; [1912] 1 K.B. 535 ; 106 L. T. 126 ; 56 S. J.
254 ; 28 T. L. E. 208— D.
Sale of Estate — Consideration — Shares in
New Company — Issue — Sanction of Treasury —
Condition as to Time of Payment.] — The
defendant company contracted to sell certain
estates to the plaintiff company, in return for
a sum in cash and shares in a company agreed
to be formed, the consideration to be paid
by a fixed date or not less than a month after
the sanction of the Treasury should have
been obtained for the issue of the capital of
the new company. The terms of the contract
shewed that it was to be performed in a short
time. The Treasury refused to sanction the
issue : — Held, that the plaintiff company was
not entitled to have the contract performed, as
the contract did not contemplate an ultimate
sanction by the Treasury after refusals
extending over an unlimited time. East Indies
Commercial Co. v. Nilambur Rubber Estates,
59 S. J. 613; 31 T. L. E. 500— Sargant, J.
Building Contract — Interference by Tres-
passer— Delay.] — In a building contract the
building owner does not insure that prompt
possession and use of the site shall be given
to the builder : he merely undertakes that so
12
355
CONTEACT— CONTEIBUTION.
356
far as his own acts are concerned it shall be
given, and he is not liable for damages in
respect of delay caused by the interference of a
mere trespasser. Porter \. Tottenham Urban
Council, 84 L. J. K.B. 1041; [1915] 1 K.B.
776; 112 L. T. 711; 79 J. P. 169;
13 L. G. E. 216; 31 T. L. R. 97— C.A.
Decision of Divisional Court (83 L. J.
K.B. 566; [1914] 1 K.B. 663) affirmed. lb.
Performances by Military Band —
Exigencies of Military Service.] — Semble, in
a contract by which a military band is engaged
to play at civilian entertainments there is an
implied term that the engagement is subject
to any claims upon the band as to their military
duties. Wood v. Victoria Pier and Pavilion,
29 T. L. E. 317— Scrutton, J.
Termination — Reasonable Notice —
Mental Specialist — Quarterly Payments —
Yearly Rate.^ — By an agreen:ient dated May 15,
1899, the defendant agreed to pay to the plain-
tiff, who was a mental specialist, 500L a year
for the care and maintenance of her daughter,
payment to be made once a quarter. On April 7 ,
19i3, the plaintiff gave the defendant three
months' notice terminating the agreement. In
an action by the plaintiff for damages for
breach of contract, it was contended that the
agreement could only be terminated on May 14
of any year by reasonable notice previously
given or that it was terminable of itself at the
end of any year. The jury found that the
defendant had given reasonable notice : — Held,
that a right to give a reasonable notice was
implied in the agreement, and that therefore
the plaintiff was not entitled to damages.
Hamilton v. Bryant, 30 T. L. E. 408— Atkin, J.
Termination — Notice — Page for Adver-
tisements."i — The defendants' agent offered to
one W. at a certain rate a full page in a
weekly publication, to be used exclusively for
publishers' advertisements, no publishers'
advertisements to be inserted except on this
page. The first order was to be for twelve
weeks. After the offer had been acted on by
W. for about two years, he assigned the con-
tract to the plaintiff, and the defendants
terminated it by three months' notice. The
plaintiff sued the defendants for damages for
terminating the contract : — Held, that there
was no binding contract between the parties
for an unlimited time, and the plaintiff was
not entitled to recover. Pocock v.' Thacker
d Co., 31 T.L. E. 388— C.A.
E. DISCHAEGE AND BEEACH OF
CONTEACT.
See also Vol. IV. 259, 2007.
Lump Sum — Variations — Right to Recover
— Quantum Meruit.] — Where a plaintiff has
contracted to do work for a lump sum, and
substantially, though not completely, executes
the work, he is entitled to recover the lump
sum for his services, subject to a deduction
of the sum necessary to make the work
correspond with that contracted to be done.
But he is not entitled to recover anything if —
first, the work is of no benefit to the defendant ;
secondly, the work done is entirely different
from the work contracted for; or thirdly, the
plaintiff has abandoned the work and left it
unfinished. Dakin d Co. v. Lee, 84 L. J. K.B.
894 ; 112 L. T. 645 ; 59 S. J. 36.5— D. Affirmed,
84 L. J. K.B. 2031; 59 S. J. 650— C.A.
Mutual Obligations — Breach by One Party.]
— Two persons agreed for the lease of an hotel
and stipulated that the tenant should take over
the furniture and stock at a valuation, and
should deposit 2001. in a bank in their joint
names to account of the valuation price. After
the money had been deposited, but before the
furniture and stock had been taken over, the
tenant intimated that he did not intend to
carry out the contract, and brought an action
against the landlord for delivery of the deposit
receipt. The defender counterclaimed damages
for breach of agreement : — Held, that thp
pursuer, having declined to perform his part of
the contract, could not call upon the defender
to fulfil his obligations until the latter had had
an opportunity of constituting his claim of
damages, and accordingly that the pursuer
was not entitled, hoc statu, to delivery of
the deposit receipt. Dingwall v. Burnett,
[1912] S. C. 1097— Ct. of Sess.
F. EESCISSION.
Misrepresentation without Fraud — Restitutio
in Integrum.^ — Contractors brought an action
against a railway company for the rescission
of a contract for the construction of a branch
line, on the ground that the contract had been
entered into under essential error, induced by
the innocent misrepresentation of the engineer
of the company as to the nature of the strata
through which the line had to pass : — Held.
that as restitutio in ir^tegrum had become
impossible, by reason of the completion of the
line by the contractors after full knowledge of
the facts, the action for rescission of the con-
tract could not be maintained. Glasgoio and
South-Western Railioay v. Boyd d Forrest.
84 L. J. P.C. 157 ; [1915] A.C. 5526— H.L. (Sc.)
Decision of the Court of Session in Scotland
([1914] S. C. 472) reversed. 76.
CONTRIBUTION.
Trustees under Two Different Wills — Dis-
cretionary Power to Provide Maintenance for
the Same Legatee — Separate and Independent
Obligation — No Right of Contribution.] — Dis-
cretionary power was given to the appellants
as trustees under a will to pay to the testator's
daughter 800L a year, the unpaid portion
thereof to fall into the residue of his estate.
A like power was given to one of the appellants
and a respondent as trustees under the will
of her sister to pay such sums as they might
think fit in and toward her maintenance, the
residue of the income of the testatrix's estate
to be paid to her nephew, the corpus to go in
equal shares to his children on his death. The
trustees under the first will paid 400L a year
to the daughter, but on the death of the testa-
357 COXTEIBUTIOX— COXVEESION AND EECOXVEESION
358
trix they reduced the allowance to lOQl. a year,
while the trustees of the second will paid
from TOOL to 800/. a year. In a suit by the
said nephew and the trustee of his insolvent
estate for an order that the said daughter's
maintenance should be provided for by a pro-
portionate contribution from the two estates, —
Held, that there was no common obligation
and no right to contribution. The trusts were
different in their terms to be exercised at the
discretion of different trustees, and the result-
ing obligations were separate and independent.
Smith V. Cock, 80 L. J. P.C. 98; [1911] A.C.
317; 104 L. T. 1— P.C.
Between Partners.] — See Partnership.
Between Sureties.] — See Principal and
Surety.
CONVERSION.
Of Chattels.]— 5ee Trover.
CONVERSION AND
RECONVERSION.
See also Vol. IV. 274, 2011.
Will— Real Estate— Power of Sale to Satisfy
Mortgages — Administration Suit — Absolute
Order for Sale of Real Estate— Part not Sold—
Conversion from Date of Order." — An absolute
order for the sale of an estate rightfully made
in an administration suit operates as an
immediate conversion from the date of the
order. Fauntleroy v. Beebe, 80 L. J. Ch. 654 ;
[1911] 2 Ch. 257; 104 L. T. 704; 55 S. J.
497— C. A.
A testator who died in 1872 specifically
devised certain real estate which was subject
to mortgages to trustees with a power of sale
thereof to satisfy such mortgages, and subject
thereto upon trust for his four children in
equal shares. In a suit for the administration
of the testator's real and personal estate an
order was made in 1883 for the sale of the
specifically devised real estate with the appro-
bation of the Judge free from the incum-
brances of such of the incumbrancers as should
consent to a sale, and subject to the incum-
brances of such of them as should not consent.
One of the testator's children, a daughter,
died in 1887, when part only of the estate
had been sold under the order : — Held, that
the part remaining unsold, although not con-
verted in fact, had been converted notionally
by the order for sale and was to be enjoyed in
its notional state as personalty, and that con-
sequently the share of the daughter therein
vested in her legal personal representative and
not in her heir-at-law. 76.
Amcld V. Dixon (L. R. 19 Eq. 113), Hyett
V. Mekin (53 L. J. Ch. 241; 25 Ch. D. 735),
and Dodson, In re; Yates v. Morton (77 L. J.
Ch. 830; [1908] 2 Ch. 638), approved and
followed. Stinson's Estate, In re ([1910]
1 Ir. R. 13), considered. lb.
Gift of Real and Personal Estate upon Trust
to Sell Real Estate — Directions — Real Estate
to be Sold as and when Trustees Think Proper
— Trustees Sole Beneficiaries — Real Estate in
Fact Unsold.] — A testator by his will ap-
pointed his wife and daughter trustees and
executrices and gave his real and personal
estate to his trustees upon trust to sell the
real estate as and when they thought proper,
and to pay the net income of his real and
personal estate to his wife for her life, and
after her death he gave his real and personal
estate and the proceeds of sale of such of his
real estate as should have been sold to his
daughter absolutely. The daughter survived
the testator, but predeceased the widow, —
Held, that the will did not create an impera-
tive trust for sale, but gave to the trustees a
discretionary power of sale, and, inasmuch as
they had not exercised that power, the real
estate was not converted and passed to the
heir-at-law of the daughter. Newbould, hi re;
Carter v. Newbould, 110 L. T. 6— C.A.
Devise of Real Estate in Ireland — Contracts
for Sale under Irish Land Acts — Conditional
on Sanction of Land Commission — Contracts
Entered into by Testator before Date of Will
or Codicil — Sanction not Obtained before
Testator's Death — Incidence of Estate Duty.]
—By his will dated September 18. 1911, and
a codicil thereto dated May 29, 1912, which
in all material respects confirmed his will, a
testator devised and bequeathed certain of his
estates in Ireland to B. absolutely, and then
went on to provide that if after the date of
his will and prior to his death he should
receive any capital moneys in respect of the
sales of any parts of these estates, or if any
money should be owing at his death in respect
thereof which did not pass under the previous
devise and bequest, then he bequeathed to B.
a legacy equal in amount to the aggregate of
the net capital moneys so received by or owing
to him. Prior in some instances to the date
of the will, and in any case to the date of
the codicil, the testator had entered into con-
tracts with tenants of these estates for the
sale to them of their holdings under the Irish
Land Acts. These contracts were all con-
ditional upon the sanction of the Land Com-
mission, and at the testator's death this
sanction had not yet been given : — Held, that
at the death of the testator the estates vested
in B. as realty for an estate in fee-simple
defeasible on the sanction of the Land Com-
mission being given, and did not pass under
the gift of capital moneys owing to the testator,
and that, if the sanction was given, it would
only operate to convert the realty into person-
alty as from that date. Held, therefore, that
the estate duty was not payable out of the
residuary personal estate, but was a charge
on the land itself under section 9 of the
Finance Act, 1894, and that under section 16
of the Irish Land Act, 1903, this charge would
be shifted from the laud on to the proceeds of
359
CONVEESIOX AND EECOXVEKSION— COPYHOLDS.
360
sale in the event of the sales being completed.
Lawes v. Bennett (1 Cox 167) explained.
Marlay, In re; Rutland iDuke) v. Bury,
84 L. J. Ch. 706; [1915] 2 Ch. 264; 113 L. T.
433; 59 S. J. 494; 31 T. L. E. 422— C. A.
Deed of Family Arrangement — Real Estate
Conveyed to Trustees — Trust for Sale upon
Request in Writing of Parties to Deed — No
Request for Sale of Properties Remaining
Unsold.] — A trust for sale, with a direction
that it shall not be exercised unless a parti-
cular person shall in writing consent to or
request a sale, is not an absolute and impera-
tive trust to sell, but gives to the person
required to consent a right to have the property
retained unsold. GosiceU's Trusts, In re,
84 L. J. Ch. 719; [1915] 2 Ch. 106; 113 L. T.
319; 59 S. J. 579— Younger, J.
Where by a deed of family arrangement
certain freehold messuages, lands, and here-
ditaments were conveyed to trustees to be held
by them in fee-simple upon the trusts in the
deed declared, and the deed provided that the
trustees should " upon the request in writing
of the said parties hereto of the first second
and third parts respectively," sell the freehold
hereditaments thereby conveyed, and hold the
proceeds of sale upon certain trusts, and where
no request had been made to the trustees to
sell the properties, — Held, that the real estate
comprised in the deed remaining unsold had
not been converted in equity into money, but
still retained its character of real estate.
Thornton v. Haicley (10 Yes. 129) and Taylor's
Settlement, In re (22 L. J. Ch. 142; 9 Hare,
596), considered. lb.
Partition Action — Sale — Payment into Court
of Infant's Share — Request for Sale — Sale for
Benefit of Infant — Death of Infant — Heir-at-
Law — Next-of-Kin.] — A fund in Court repre-
senting an infant's share of proceeds of a sale
ordered in a partition action is subject to the
equity to reconvert into realty, is impressed
with the character of real estate, and at the
infant's death under age will go to his heir-at-
law. This rule holds good notwithstanding
the facts that the infant, by his next friend,
requested a sale, and that the sale was certified
to be for the infant's benefit. Hopkinson v.
Richardson, 82 L. J. Ch. 211; [1913] 1 Ch.
284; 108 L. T. 501; 57 S. J. 265— Swinfen
Eady, J.
Personalty to be Held upon same Trusts as
Proceeds of Sale — Power to Jointure —
Election.] — A testator, after devising his land
in strict settlement, gave his trustees a power
of sale, and declared that the moneys arising
from any such sale should, subject to a power
of interim investment, be re-invested in land.
He then bequeathed all his residuary personal
estate to his trustees upon the trusts and with
and subject to the powers and provisions
applicable to moneys to arise from a sale
under the power of sale thereinbefore con-
tained : — Held, that the residuary personal
estate must be treated as realty, though not
actually laid out in the purchase of land.
Cleveland (Duke), In re: Barnard v. Wolmer
(62 L. J. Ch. 955; [1893] 3 Ch. 244), followed.
Held also, that the devisees being put to elec-
tion in respect of the devised real estate, such
election, on the true construction of the will,
extended so as to include the residuary per-
sonal estate. Upo7i-Cottrell-Dormer, In re;
Upton V. Upton, 84 L. J. Ch. 861; 112 L. T.
974 ; 31 T. L. R. 260— Eve, J.
Trust to Convert.] — See Gresharn Life
Assurayice Society v. Crowther, post. Land.
CONVICTION.
Evidence of.] — See Criminal Law.
Validity.] — See Criminal Law; Justice of
THE Peace.
COPYHOLDS.
See also Vol. IV. 357, 2015.
Alleged Right of Fishing— Copyhold Tenants
— Immemorial Usage — Custom — Reasonable-
ness.]— ^The tenants on certain ancient copy-
hold messuages within a manor had since 1599
asserted a custom for them to fish in certain
waters within the manor, but there were con-
tinual protests by the lord of the manor. As
far back as living memory went the tenants
had habitually fished without interruption by
the lord of the manor, and some of them had
let the fishing and did not regard their rights
as limited to catching fish for their own con-
sumption. In an action by the owner of two
of the messuages, which had been turned into
fee-simple, against the lords of the manor and
their fishing tenant, for a declaration that the
plaintiff had a right of fishing for consumption
of the occupants of the messuages, — Held, that
on the evidence the plaintiff had to prove the
existence of an immemorial usage amounting
to a legal custom, and that as the alleged
usage had been without reference to the needs
of the occupants of the messuages the plaintiff
had failed to prove a reasonable usage, and
therefore he was not entitled to the declaration
asked for. Payne v. Ecclesiastical Commis-
sioners, 30 T. L. R. 167— Warrington, J.
Trustees Selling under their Power of Sale
— Right to have Purchaser Admitted.] — A
testator who died in 1883 by his will declared
limitations of his freehold and copyhold
estates, and gave an overriding power of sale
to his trustees. The will vested a term of
1,000 years in the trustees, but contained no
express power to revoke uses. The trustees
were now selling under their power of sale,
and proposed to nominate the purchaser for
admittance. The lord claimed that the
trustees must be admitted : — Held, that the
lord was bound to admit the purchaser on
payment of a single fine. Beal v. Sheppard
(Cro. Jac. 109) followed. Qucere, whether the
lord and steward of the manor could properly
appear and be heard on a vendor and pur-
chaser summons. Heathcote and Ratoson's
Contract. In re, 108 L. T. 185; 57 S. J. 374
— Farwell, L.J.
361
COPYEIGHT.
362
COPYRIGHT.
A. Books, 361.
B. Musical and Dramatic Copyright, 363.
C. Engravings, Pictures, Photographs, &c.,
365.
A. BOOKS.
See also Vol. IV. 459, 2021.
Effect of Act of 1911 on that of 1842.]—
No one is entitled to sue under the Copyright
Act, 1911, except for infringements of copy-
right under that Act ; and although the
plaintiffs' remedies for the infringement of
copyright under the Copyright Act, 1842, were
preserved by the Interpretation Act, 1889,
they were so preserved with the disadvantage
that registration must be proved before action
brought. Evans V. Morris, [1913] W. N. 58
— D.
Auditor's Report — Preparation for and Pub-
lication in Newspaper — Right to Republish.] —
The plaintiffs, a firm of accountants, acting on
the instructions of the proprietor of a news-
paper, examined the securities possessed by
the defendant, and made a report thereon,
which was to be, and was in fact, published
in the next issue of the newspaper. The
plaintiffs were paid for their services in the
matter by the proprietor of the newspaper.
The defendant having republished the report
was sued by the plaintiffs, who claimed an
injunction : — Held, that the sole and exclusive
rights of publishing and multiplying the report
had passed to the proprietor of the newspaper,
and therefore that the plaintiffs' action
failed. Chantrey v. Dey, 28 T. L. E. 499—
Warrington, J.
Translation made under Contract — Transla-
tion Published as Advertisement in Newspaper
— Publication of Advertisement in another
Newspaper — Right of Translator to Copyright
— Knowledge of Infringer as to the Existence
of the Copyright.] — The manager of a finan-
cial newspaper arranged with the Governor of
the State of Bahia that his message to the
Legislative Assembly of the State should be
printed and paid for as an advertisement in
that paper. The plaintiff, who was per-
manently employed on the staff of that paper,
was employed to translate the speech from
the Portuguese language. The translation was
not made by him in the course of his employ-
ment as one of the staff of the paper ; it was
done entirely in his own time and under an
independent engagement outside his ordinary
duties. The plaintiff, in making the transla-
tion, cut down the speech, omitted the less
material parts, divided it into suitable para-
graphs, and supplied appropriate headlines.
The translation made by the plaintiff appeared
as an advertisement in the paper together with
the following words : " Translated from the
Portuguese by F. D. Byrne." The defen-
dants, on seeing the advertisement, following
the ordinary practice of managers of news-
papers, obtained permission from the Bahia
Government to reproduce it as an advertise-
ment in their paper for a certain sum. The
defendants accordingly published in their paper
an advertisement which was in every way a
copy of the advertisement in the other paper.
The plaintiff brought an action in respect of
the infringement of his copyright : — Held, that
the translation made by the plaintiff was an
" original literary . . . work " within the
meaning of section 1 of the Copyright Act,
1911, and that as it was first published in
England, and the plaintiff was the author of
it, and it was not made in the course of
his employment, he was the owner of the
copyright therein ; that the defendants could
not rely upon section 8 of the Act of 1911,
as there was reasonable ground for them to
suspect that there was copyright in the trans-
lation, having regard to the intimation con-
tained on the face of the advertisement that
it was translated by the plaintiff, and section 8
afforded no protection to a person who, knowing
or suspecting that copyright subsists, makes
a mistake as to the owner of the copyright
and obtains permission to publish from a
person who is in fact not the owner of the
copyright. Byrne v. " Statist " Co., 83 L. J.
K.B. 625: [1914] 1 K.B. 622; 110 L. T. 510;
58 S. J. 340; 30 T. L. E. 2-54— Bailhache, J.
Stock Incidents — Combination — Repro-
duction — No Similar Sentence.] — Under
section 1 of the Copyright Act, 1911, the
person who is the author and the owner of
the copyright in a novel is entitled to an
injunction to restrain the performance of a
dramatic sketch containing a series of stock
incidents in combination which have been
taken from the plaintiff's book, even though
no sentence used in the sketch is similar to
anv sentence used in the book. Corelli v.
day, 30 T. L. E. 116— C.A.
Index to Railway Guide — List of Names of
Stations Used for Guessing Competition —
Names Taken from Index.] — A book which
consists of a specification of the conditions at
the present moment of a constantly changing
subject-matter is a new work, even though
some of the particulars may, and have not
altered from what they were, and were stated
to be at some prior date ; and to publish and
sell a portion of such work, even though for
an entirely different purpose, is an infringe-
ment of the copyright in such work. It is
therefore an infringement of copyright to
publish an extract from the index of stations
in Bradshaic's Railicay Guide published in
1914, although the names of stations taken
m.ay have appeared in an edition of the guide
published in 1902, such list of names having
been issued and sold in connection with a
railway-station guessing competition carried
on bv the infringing partv. Blacklock d Co.
V. Pearson, Lim., 84 L. "j. Ch. 785; [1915]
2 Ch. 376; 113 L. T. 775; 31 T. L. E. 526—
Joyce, J.
Card-Index System.] — The plaintiffs in-
vented an outfit consisting of a box in which
cards of different colours and with different
headings were inserted, the object being to
enable an employer to get readily at the
insurance card of a particular servant. The
cards merely had on them the words " name "
363
COPYRIGHT.
364
and " address " and other words that might
be used by anybody : — Held, that the cards
were not an original " literary work '" within
section 35 of the Copyright Act, 1911, and
therefore were not the subject of copyright
within section 1. Libraco, Lim. v. Shaw
Walker. Lim., 58 S. J. 48: 30 T. L. R. 22—
^Yarrington, J.
Publication of Story under Plaintiff's Name.]
— See Defamation.
B. MUSICAL AND DRAMATIC
COPYRIGHT.
See also Vol. IV. 512, 2028.
Musical Composition — Common Law Right
of Property — Reproduction by Gramophone
Records.] — After the publication of the music
of a song the composer has no remedy at
common law against a person who, without
the composer's consent, makes and sells
gramophone records by which the music is
reproduced. Moncktori v. Gramophone Co.,
106 L. T. 84; 56 S. J. 270; 28 T. L. R. 205
— C.A.
Copyright Song with Pianoforte Accom-
paniment— Record for Mechanical Performance
- Manuscript Orchestral Arrangement for
Graphophone.] — The making of a single manu-
script orchestral arrangement of a copyright
song with pianoforte accompaniment is an
infringement of copyright and cannot be justi-
fied, even though it is made for the purpose
only of producing graphophone records by a
person who has given the notice and paid the
royalties requisite under the Copyright Act,
1911, s. 19, to entitle him to make mechanical
records of the copyright song. Chappell a:
Co. V. Columbia Graphophoyie Co.. 84 L. J.
Ch. 173; [1914] 2 Ch. 745; 112 L. T. 63;
59 S. J. 6; 31 T. L. R. 18— C.A.
Decision of Neville, J. (83 L. J. Ch. 727;
[1914] 2 Ch. 124), affirmed. 76.
Payment of Royalties — Gramophone
Records — Records Made and Sold before Copy-
right Act came into Operation.] — The plaintiff
in the early part of the year 1911 composed
and published an original musical work called
the " Mousme Waltz." At some date before
the Copyright Act, 1911, came into operation
— namely, July 1, 1912 — the defendants, who
were manufacturers and sellers of gramophone
records, manufactured abroad and imported
into England gramophone records of the waltz,
and since July 1, 1912, sold such records in
England without the plaintiff's consent and
without paying him any royalty : — Held, that
the defendants had infringed the plaintiffs'
copyright in the waltz within the meaning
of section 1, sub-section 2 (d) of the Copy-
right Act, 1911, under which " copyright
for the purposes of the Act includes for the
first time the sole right " in the case of a
literary, dramatic, or musical work, to make
any record, perforated roll, cinematograph
film, or other contrivance by means of which
the work may be mechanically performed or
delivered." Monckton v. Pathi Frkres Pathe-
phone, Lim., 83 L. J. K.B. 1234; [1914]
1 K.B. 395; 109 L. T. 881; 58 S. J. 172;
30 T. L. R. 123— C.A.
The Board of Trade under the provisions
of section 19, sub-section 6 of the Copyright
Act, 1911 — which empowers the Board to
make regulations prescribing " the mode, time,
and frequency of the payment of royalties,
and any such regulations may, if t'ne Board
think fit, include regulations requiring pay-
ment in advance or otherwise securing the
payment of royalties " — made a regulation
that " Unless otherwise agreed, royalties
shall be payable by means of adhesive labels
purchased from the owner of the copyright
and affixed in the manner provided by these
regulations," and the regulations further pro-
vided that no contrivance should be delivered
to a purchaser until such label or labels
denoting the amount of royalty had been
affixed thereto : — Held, that the regulation
was not ultra vires, but was one for " securing
the payment of royalties " within the meaning
of the sub-section. lb.
Popular Song — Reply Song — Publication
Abroad — Simultaneous Publication in this
Country — " First publication " — " Colourable
publication."] — A popular song was published
in America on May 5, 1913, and prior to that
date twelve copies of the song were sent to
a firm in this country. On May 5, 1913, this
firm deposited five copies officially, filed one
copy for reference, and placed the remaining
copies on sale. No further attempt was made
to bring the song to the notice of the public
in this country until it was publicly performed
in July, 1913. No copy of the song was sold
until after the public performance. The sub-
sequent popular demand was first supplied by
copies of the song obtained from America, but
afterwards the English firm obtained an
assignment of the copyright and published
their own copies : — Held, that there had been
a sufficient first publication in this country on
May 5, 1913, within the meaning of section 1,
sub-section 3, and section 35, sub-section 3 of
the Copyright Act, 1911. Held, also, on the
facts, that a reply song published by the
defendants was not an infringement of the
plaintiffs' copyright. Francis. Day d Hunter
V. Feldman d Co., 83 L. J. Ch. 906; [1914]
2 Ch. 728; 111 L. T. 521 ; 59 S. J. 41— C.A.
Stage Play— Title .1— The plaintiff was the
owner of the copyright of a play entitled
Where there's a Will there's a Way. The
defendant produced a play entitled Where
there's a Will . There was no allegation
of an infringement of copyright with regard
to the substance of the plays, but in each
the progress of the plot gave to the word
" will " in the title the peculiar meaning of
testament : — Held, that the peculiar signifi-
cance of the words did not render a common
phrase a subject of copyright. Broad or
Broemel v. Meyer. 57 S. J. 145 ; 29 T. L. R.
148 — Warrington, J.
Similarity between Two Pieces merely a
Coincidence.] — The representation of a
dramatic piece in which the similarities to a
piece previously produced are due to mere
coincidence — both plays being derived inde-
365
COPYEIGHT.
366
pendently from the common stock of dramatic
ideas — is not an infringement of the rights
given by the Dramatic Copyright Act, 1833,
to the author of the play first produced.
Robl V. Palace Theatre, 28 T. L. E. 69—
Hamilton, J.
Cinematograph — "Place of dramatic enter-
tainment"— Show Room.] — The defendants,
who were producers of cinematograph films,
had a room at their place of business fitted
up with a cinematograph apparatus, and they
issued advertisements inviting the public to
see films shewing certain scenes of a play
which the plaintiffs alleged to be an infringe-
ment of their rights : — Held, without deciding
whether the exhibition of the films constituted
an infringement of the plaintiffs' rights, that
the room where the films were shewn on the
cinematograph was not a place " of dramatic
entertainment " within the meaning of sec-
tion 2 of the Dramatic Copyright Act, 1833,
inasmuch as the public were merely invited
with the object of getting them to purchase
the films. Glenville v. Selig Polyscope Co.,
27 T. L. R. 554— Channell, J.
Exhibition of Films — Contract to Exhibit
at Certain Places on Certain Days — Adver-
tising Intention to Exhibit Film at Place not
within Contract.] — The defendants entered
into an agreement with the plaintiffs by which
they hired a certain cinematograph film, the
copyright of which belonged to the plaintiffs,
for exhibition in certain specified theatres on
certain days, and the defendants agreed that
they would not exhibit the film in any other
theatre than those specified in the agreement.
The defendants in fact exhibited the film in
two other theatres and advertised their inten-
tion of exhibiting the film at a place at which
they were not authorised by the agreement
to exhibit it : — Held, that the defendants had,
besides committing a breach of contract, also
infringed the Copyright Act, 1911, by adver-
tising their intention to exhibit the film at a
place at which they were not authorised to
exhibit the film, and that for that tort they
must pay damages. Fenniiig Film Service,
Lim. V. Wolverhampton, Walsall, and Dis-
trict Cinemas, Lim., 83 L. J. K.B. 1860;
[1914] 3 K.B. 1171; 111 L. T. 1071—
Horridge, J.
C. ENGRAVINGS, PICTURES,
PHOTOGRAPHS, &c.
See also Vol. IV. 534, 2032.
Drawing — Infringement — Copy on Wood
Block — Registration.]— The plaintiff was the
owner of the copyright of a drawing, the princi-
pal features of which the defendant had copied
on to a wood block, so that in the reproduc-
tions printed therefrom the said features were
transposed, and faced in the opposite direc-
tion : — Held, that the block and reproductions
printed therefrom were copies or colourable
imitations and infringements of the copy-
right. The plaintiff registered himself as co-
owner of a copyright with Y., who, in fact,
had no interest in the copyright. Subse-
quently he registered himself as sole owner,
but entered on the register an assignment to
himself of all V.'s interest in the said copy-
right, whereas V. had in fact no interest : —
Held, that the first registration was bad, but
that the second was valid, and could sustain
an action for infringement. Whitehead v.
Wellington, 55 S. J. 272 — Warrington, J.
Sale by Author — Alteration and Publica-
tion by Purchaser without Author's Consent as
and for Unaltered Work of Author — "Altera-
tion"— Action to Recover Penalties — Injunc-
tion.]— The object of section 7, clause 4 of
the Fine Arts Copyright Act, 1862, is to
protect the character and reputation of the
author or maker of a painting, drawing, photo-
graph, or negative of a photograph who has
parted with the possession of it, by forbidding
the making, sale, or publication by another
person, without the consent of the author or
maker, of an altered copy thereof as and for
the latter "s unaltered work. An alteration,
therefore, to be within clause 4, must be such
an alteration as might affect such character or
reputation. Such making, sale, or publication
need not be fraudulent ; it is sufficient if it is
done knowingly. Carlton Ulustrators v.
Coleman, 80 L. J. K.B. 510; [1911] 1 K.B.
771; 104 L. T. 413— Channell, J.
The maker or author is entitled under sec-
tion 8 of the Act to bring an action for the
recovery of the penalty imposed by section 7
for a breach of clause 4 of section 7. He is
also entitled to an injunction to restrain future
breaches of the clause. lb.
Cooper V. Whittingham (49 L. J. Ch. 752;
15 Ch. D. 501) followed. lb.
Assignment before 1911 — No Registration
— Substituted Copyright.] — A person entitled
to copyright at the date of the passing of the
Copyright Act, 1911, is entitled to the substi-
tuted copyright mentioned in the First
Schedule to that Act and can sue for an in-
junction, damages, and consequential relief,
although the copyright was not registered as
acquired bv the Copyright Act, 1862. Savory,
Lim. V. ""World of Golf," Lim., 83 L. J. Ch.
824 ; [1914] 2 Ch. 566 ; 111 L. T. 269 ; 58 S. J.
707— Neville, J.
Sufficiency of Memorandum. T — The plain-
tiffs claimed to be assignees of the copyright
in a picture of a golfer entitled " Thirteen
Down — Great Scott."" The assignment was in
the form of a receipt bearing date March 28,
1910, and in the following terms : " Received
of Messrs. Savory, Lim., Bristol, the sum of
2L 6s. 6d. for five original card designs inclu-
sive of all copyrights : subjects — four golfing
subjects ; one Teddy Bear painting. (Signed)
W. Fletcher Thomas." The copyright was
not registered. The defendants on Decem-
ber 4, 1913, reproduced this picture in their
magazine The World of Golf. Upon this in-
fringement being brought to their notice by
the plaintiffs they offered all that the plaintiffs
could have obtained by action. This offer was
refused and the action proceeded. At the trial
tlie plaintiffs proved the sale of one copy subse-
quently to the offer in question : — Held, that
there was a sufficient written memorandum
" signed at or before sale " to pass the copy-
367
COPYEIGHT— CORPOEATIOX.
368
right in the drawing, and that parol evidence
was admissible to identify the drawing in
question as one of those referred to in the
memorandum. Shardlow v. Cotterill (50 L. J.
Ch. 613; 20 Ch. D. 90) and Plant v. Bourne
(66 L. J. Ch. 643 ; [1897] 2 Ch. 281) followed.
lb.
Picture — Infringement — Copies made before
Registration — Subsequent Registration — Sale
after Registration.] — A certain photograph was
taken by the agent of the plaintiffs of an
incident at the Delhi durbar, and the plaintiff
subsequently saw a similar photograph appear
in an illustrated paper. He thereupon regis-
tered his photograph under the Copyright Act,
and proceeded to the office of the paper which
contained the photograph, and sued the pub-
lishers and proprietors of the paper, and
purchased two copies of the paper, claiming
an injunction and damages for infringement of
his copyright : — Held, that he was entitled to
an injunction and an enquiry as to damages.
Baker Motion Pliotographic Co. v. Hulton,
56 S. J. 632; 28 T. L. E. 496— Neville, J.
Photographs — Supplying for Reproduction in
Newspapers — Termination of Arrangement —
Subsequent Publication of Photographs, Copy-
right in which Registered — Right to Publish
others, Copyright in which not Registered —
Common Law Rights of Proprietor.] — The
plaintiffs supplied photographs for reproduction
in newspapers belonging to the defendants, at
agreed charges for each occasion on which a
photograph was used. After the plaintiffs had
terminated the arrangement the defendants
published in the newspapers photographs in
which the plaintiffs had registered their copy-
right, and claimed the right to publish others
the copyright in which had not been regis-
tered : — Held, that the termination of the
arrangement by the plaintiffs amounted to a
withdrawal of all open offers, and that there-
after the defendants could not, without the
plaintiffs' licence, use or re-use any of the
photographs theretofore supplied by the
plaintiffs; and that the plaintiffs, notwith-
standing the non-registration of their statiitory
copyright in the unpublished photographs,
were entitled to an injunction to protect their
common law rights, as well as to relief in
respect of the infringement of their statutory
copyright. Mansell v. Valley Printing Co.
(77 L. J. Ch. 742 ; [1908] 2 Ch. 441) applied.
Bowden v. Amalgamated Pictorials, Lim.,
80 L. J. Ch. 291; [1911] 1 Ch. 386; 103 L. T.
829— Parker, J.
CORONER.
See also Vol. IV. 560, 2038.
Order for Second Inquest.] — Order made
directing second inquest to be held on the body
of a person where the facts shewed that further
investigation as to the circumstances attending
the death of that person was necessary. Att.-
Gen., Ex parte, 29 T. L. R. 199— D.
Concurrent Inquests — Fees to Jurors.] — An
explosion occurred in a colliery pit which
caused the death of 166 persons, and several
days elapsed before all the bodies were
brought to the surface. The coroner of the
district instructed the local inspector of
county constabulary to act as coroner's officer
and summon a jury of twenty inhabitants of
the district. This jury was sworn 166 times,
and the coroner paid them fees as for a
corresponding number of inquests. He also
paid the constable acting as his officer fees
as for 166 inquests : — Held, that the inquests
were concurrent and not separate or conse-
cutive, and that by the schedule of the fees,
allowances, and disbursements to be paid by
coroners on the holding of inquests, made by
the county council of the county in which
the colliery was situate, under section 25 of
the Coroners Act, 1887, the jurors were only
entitled to fees as for one inquest. Rex v.
Durham County Council; Graham, Ex parte,
106 L. T. 949: 10 L. G. R. 384; 76 J. P. 219;
28 T. L. R. 360— D.
Fees to Police Constable Acting as Coroner's
Officer.] — Further, that by the operation of
section 23 of the Police Act, 1890, the county
schedule is applicable only to a person acting
as coroner's officer who is not a police con-
stable, and that police constables acting as
coroners' officers are not entitled to fees
under that schedule, but only to such fees
as may have been approved under the last-
mentioned section. lb.
CORPORATION.
See also Vol. IV. 568, 2039.
Election as Mayor and as Alderman — Quali-
fication— " Councillor " — Disqualification of
Councillor having Interest in Contract —
" Being."] — A person elected a member of a
borough council, although disqualified under
the provisions of section 12, sub-section 1 (c)
of the Municipal Corporations Act, 1882, for
being elected or for being a councillor by
reason of his having an interest in a contract
with the council, is nevertheless a councillor
within the meaning of section 14, sub-
section 3, and section 15, sub-section 1, and
qualified to be elected alderman and mayor
of the borough where, under the provisions
of section 73, his election is to be deemed to
all intents good and valid because it has not
been questioned within twelve months thereof.
And within the meaning of the above sub-
sections he is " qualified to be a councillor."
Forrester v. Norton, 80 L. J. K.B. 1288;
[1911] 2 K.B. 953; 105 L. T. 375; 76 J. P.
510 ; 9 L. G. R. 991 ; 55 S. J. 668 ; 27 T. L. E.
542— D.
" Being " in section 12, sub-section 1 (c),
means " holding the office of." lb.
Mayor — Interest in Employment of Officer
of Corporation — Receipt of Sums Paid out of
Salary of Officer — Right of Corporation to
Recover.] — S. L. owned a private business as
accountant, and also held certain appointments
369
COEPORATION— COSTS.
370
under the corporation of a borough. As he was
disqualified while he held these appointments
from being elected mayor of the borough, he
made an arrangement wth those who had con-
trol of the appointments, in pursuance of which
he resigned them in favour of his son and
another as joint holders thereof, and he became
a candidate for the office of mayor. He was
shortly afterwards elected mayor and held that
office for a year, continuing thereafter to be a
councillor for upwards of five years. He had
taken no part in the appointment of his
successors to, or their continuance in, the
aforesaid appointments. Subsequently by deed
S. L., whilst mayor, sold to the joint holders
of these appointments his private business as
accountant in consideration of their paying
him {inter alia) an annual sum for five years
out of their official salaries. They accordingly
paid him that annual sum for the stipulated
period. The corporation of the borough
brought an action against the executors of
S. L. to recover the sums so paid to him as
money had and received by him to the use of
the corporation : — Held, that there was no
foundation for the claim. Pontefract Corpora-
tion V. Lowden, 84 L. J. K.B. 1800; 113 L. T.
272; 79 J. P. 392; 13 L. G. R. 721; 59 S. J.
398— C. A.
By the Court : Under the deed S. L. had an
interest in an employment with the corpora-
tion, and was therefore disqualified for being
mayor or councillor by section 12, sub-
section 1 (c) of the Municipal Corporations
Act, 1882. Ih.
Member of Committee — Power to Resign.^
— A member of a borough council appointed
member of a committee of the council under
the powers of section 22, sub-section 2 of the
Municipal Corporations Act, 1882, does not
hold a public office within the operation of
the common law rule that a person qualified
and duly elected to serve in a public office
cannot refuse to serve, and consequently such
member of a committee may resign. Rex v.
Sunderland Corporation, 80 L. J. K.B. 1337;
[1911] 2 K.B. 458; 105 L. T. 27; 75 J. P.
365 ; 9 L. G. R. 928 ; 27 T. L. R. 385— D.
Person Entitled to be Enrolled as Burgess.]
— See Lloyd v. Shrewsbury {Town Clerk),
ante, col. 545.
By-laws — Prohibition of Touting for Hack-
ney Carriages in Public Thoroughfare — Ground
Open to Street.] — In the borough of B. a
small triangular piece of garden ground at a
street corner had been thrown into the foot-
path for the purpose of rounding off the corner,
and had been made up by the corporation,
who afterwards declared the street a highway.
The soil belonged to the owners of a hotel,
and the Justices were of opinion that it was
private property, although open to the street.
Upon this piece of ground a livery-stable
keeper, whose premises were close by, took up
his stand, either by himself or his employees,
and touted for passengers to hire his vehicles :
■ — Held, that in so doing he had committed a
breach of a by-law of the B. Corporation
" that a person shall not in any public
thoroughfare in the district tout for hackney
carriages" ; and that the Justices were wrong
in dismissing a summons against him for such
breach. Derham v. Strickland, 104 L. T.
820; 9 L. G. R. 528; 75 J. P. 300— D.
Power to Supply Electric Fittings.] — See
Electric Lighting.
CORPORATION DUTY.
See REVENUE.
COSTS.
A. Generally, 370.
B. After Trial by Jury, 374.
C. Taxation of Costs, 377.
D. Effect of County Courts Act, 381.
E. Set-off of Costs, 381.
F. Interest on Costs, 382.
G. Appeal for Costs, 382.
H. Security for Costs. See Appeal;
County Court ; Practice.
A. GENERALLY.
See also Vol. IV. 677, 2054.
Conduct of Defendant — Extraneous Matter —
Discretion.] — The plaintiffs, hotel keepers in
France, obtained from the defendant, a young
Englishman, of twenty-two years of age, who
had been staying at the plaintiffs' hotel, an
English cheque payable in England, by a threat
of criminal proceedings in France if it was not
given, and a suggestion that no such proceed-
ings would be taken if the cheque were given.
The Judge held that payment of the cheque
could not in these circumstances be enforced
in an English Court and gave judgment for the
defendant, but deprived him of costs on the
ground that he had been very foolish throughout
and that he had applied for two substantial
amendments at the trial : — Held, on an appeal
as to costs, that though the foolishness of the
defendant was an extraneous matter which the
Judge was not entitled to take into account in
exercising his discretion as to costs, yet there
were, apart from this, ample materials on
which he was entitled to exercise his discretion
by depriving the defendant of costs. SocietS
des Hdtels Reunis v. Hawker, 58 S. J. 515;
30 T. L. R. 423— C. A.
Appeal from decision of Scrutton, J.
(29 T. L. R. 578), dismissed. Ih.
Depriving Successful Defendant of Costs —
Plea of Gaming Act.] — In an action for a sum
due on a bet the defendant pleaded the Gaming
Act. On the case coming on for trial, the
plaintiff admitted that, in view of the plea of
the Gaming Act, he could not succeed, and he
therefore consented to judgment for the defen-
dant. The defendant applied for judgment
371
COSTS.
372
with costs : — Held, that the Court had a dis-
cretion as to awarding costs, and in the
circumstances would refuse to award them in
favour of the defendant. Levy v. Johnson,
29 T. L. R. 507— A. T. Lawrence, J.
Joinder of Additional Defendant under
Misapprehension of Law.] — The plaintiff
obstructed the user of a right of way, and the
defendants having removed the obstruction the
plaintiff brought an action of trespass against
them, and joined R. as a party, claiming as
against him damages for breach of covenant for
title or for quiet enjoyment if it should be
helJ that the other defendants were entitled
to the right of way. The County Court Judge
held that the plaintiff was entitled to damages
against the first defendants for trespass on the
ground that they had no right of way, but that
the plaintiff was not entitled to damages
against R. for breach of covenant. He ordered
the plaintiff to pay R.'s costs, and on the
authoritv of Bullock v. London General Omni-
bus Co. "(76 L. J. K.B. 127 ; [1907] 1 K.B. 264)
further ordered that the plaintiff should be at
liberty to add R.'s costs to his own and recover
both sets of costs from the unsuccessful defen-
dants : — Held, that the order made by the
learned Judge as to costs was wrong, the
principle of Bullock v. London General
Omnibus Co. (supra) not applying to a case in
which a second defendant is joined by the
plaintiff under a misapprehension of his legal
rights. Poulton v. Moore, 83 L. J. K.B. 875;
109 L. T. 976— D.
Copyright — Design — Infringement — Con-
sent to Order in Chambers — Motion in Court.]
— Cases of infringement of patent or copyright
should be in open Court, and therefore, even
where the defendant's solicitor has consented
to an injunction being granted in chambers,
the plaintiff, if he moves in Court, is entitled
to the costs of the motion and is not limited to
the costs of a summons. Smith d Jones, Lim.
V. Service, Reeve d Co., 83 L. J. Ch. 876;
[1914] 2 Ch. 576; 111 L. T. 669; 31 R. P. C.
319 ; 58 S. J. 687 ; 30 T. L. R. 599— Sargant, J.
Innocent Infringement — Offer before
Action — Right to Sue — Costs.] — An offer
made by a defendant before action in an action
for infringement of copyright is not sufficient
to deprive a plaintiff of his legal remedy by
action; but, semble, if the offer includes all
that the plaintiff is entitled to, and it is
repeated after action brought, then the plain-
tiff, if he persists with his action, must pay all
costs incurred in the action subsequently to the
offer. Savory, Lim. v. World of Golf, Lim.,
83 L. J. Ch. 824; [1914] 2 Ch. 566; 111 L. T.
269; 58 S. J. 707— Neville, J.
Offer in Defence Delivered — Plaintiff's Right
to Subsequent Costs.] — The plaintiff, a mem-
ber of the defendant trade union, having
brought the action against the union and its
trustees for relief in the form of the judgment
in Osborne v. Amalgamated Society of Rail-
way Servants (79 L. J. Ch. 87; [1910] A.C.
87), the defendants, by their defence, offered a
perpetual undertaking not to spend the funds
of the union on the collection of voluntary
subscriptions for purposes outside the union's
powers, to make it clear that all such sub-
scriptions were voluntary, and to charge
as arrears against any member any sum in
respect of them, and to pay the plaintiff's
costs up to the defence : — Held, that, notwith-
standing this offer, the plaintiff was entitled
to his other costs of the action. Wilson v.
Amalgamated Society of Engineers, 80 L. J.
Ch. 469; 104 L. T. 715; 55 S. J. 498;
27 T. L. R. 418— Parker, J.
Payment into Court with Denial of Liability
— Mandatory Injunction — Costs.1 — The defen-
dant had erected on his land a pilaster which,
at a height of some twelve feet above the
private road, projected about twenty inches
over. The plaintiff asked for a mandatory
injunction for the removal of the pilaster, but
the defendant, while denying liability, paid
51. into Court, and pleaded that that was
enough to satisfy the plaintiff's claim in respect
of the projection : — Held, that damages should
be awarded in lieu of a mandatory injunction,
and that, as damages to the amount of more
than 5/. had not been shewn, and the Judge
was not satisfied that there were reasonable
grounds for not accepting the sum paid in,
the plaintiff must, under Rules of the Supreme
Court, 1883, Order XXII. rule 6, pay the costs
of the issue as to liability in respect of the
pilaster. Pettey v. Parsons. 84 L. J. Ch. 81;
[1914] 1 Ch. 704 ; 30 T. L. R. 328— Sargant, J.
Third Party and Fourth Party Notices-
Third Party's Right to Indemnity against
Fourth Party Admitted — Action Dismissed
with Costs — Whether Third Party's Costs to
Include Costs Paid to Fourth Party.] — In an
action against defendants who claim indemnity
against a third party who obtains an order
in the presence of the plaintiffs against a
fourth party, directing delivery of pleadings
and that the fourth party be at liberty to
appear at the trial and be bound by the result,
the Court has jurisdiction under the third-party
procedure in part 6 of Order XVI. to decide
all questions of costs as between the parties
to the action and the third and fourth parties,
the rules applying not only to third parties, but
further parties : — Held, therefore, that the
plaintiffs in the circumstance of having
endeavoured to perpetrate a fraud on the fourth
party must pay his costs. No order against
the plaintiffs as to third party's costs, the
claim against them being one of indemnity.
Also, that in the circumstances there ought
to be no order as to costs as between the third
and fourth parties in the fourth-party proceed-
ings. Klawanski v. Premier Petroleum Co.,
104 L. T. 567; 55 S. J. 408— Eve, J.
Notice of Act of Bankruptcy — Refusal to
Pay Debt on Ground of Notice — Action to
Recover Debt — Application by Defendant for
Direction to Pay into Court — Right of Defen-
dant to Costs.] — The plaintiff, having a sum
standing to his credit on his banking account
with the defendants, demanded payment
thereof after he had given them notice that he
had committed an act of bankruptcy. The
defendants refused to pay, and, the plaintiff
having commenced an action to recover the
373
COSTS.
374
sum, the defendants immediately obtained an
order directing tiiem to pay the money into
Court. A summons by the plaintiff for judg-
ment under Order XIV. was adjourned until
the expiration of three months from the date
of the acts of bankruptcy, and then, no bank-
ruptcy proceedings having been instituted, an
order was made that the plaintiff should be
at liberty to sign final judgment, and that
the amount paid into Court should be paid
out to the plaintiff : — Held, that the defen-
dants were entitled to be allowed their costs
of the action. McCarthy v. Capital arid
Counties Bank, 81 L. J. K.B. 14; [1911]
2 K.B. 1088; 105 L. T. 327; 18 Manson, 343
— C.A.
ScYcral Issues — Finding for Plaintiff on One
Issue, but for Defendant on Overriding Issue —
Judgment for Defendant with Costs — Judg-
ment Silent as to Costs of Issue on which
Plaintiff Succeeded — Right of Plaintiff to
Costs of that Issue — "Issue" — "Event" —
" Unless the Judge . . . shall, for good cause,
otherwise order."] — The plaintiff, a builder,
brought an action against the defendant on a
building contract claiming 427Z. 95. 3d. as the
balance due to him thereunder. The defen-
dant pleaded that the work done by the
plaintiff under the contract was unsatisfac-
tory and of inferior quality, so that no balance
was due thereunder, and that the claim was
barred by the Statute of Limitations. The
action having been referred, the official referee
found that 247/. 7s. was due from the defen-
dant to the plaintiff, but that the plaintiff's
right to recover the amount was barred by
the Statute of Limitations ; and, pursuant to
his direction, judgment was entered for the
defendant, with his costs of the action except
so far as these had been increased by the
defence other than the Statute of Limitations :
— Held, that the question as to the existence
and amount of the debt due under the contract
was an " issue," and that the finding of the
official referee was an " event," within the
meaning of Order LXV. rule 1 ; that the mere
fact that the judgment did not state that the
plaintiff was entitled to the costs of that issue
on which he succeeded did not imply that it
did " for good cause, otherwise order," within
the meaning of that rule ; and consequently
that the plaintiff was entitled to his costs of
that issue. Slatford v. Erlebach, 81 L. J.
K.B. 372; [1912] 3 K.B. 155; 106 L. T. 61
—C.A.
Separate Issues — Absence of Direction by
Judge as to Costs — Jurisdiction of Taxing
Master.] — In every case, whether tried by a
jury or not, the judgment should contain a
direction as to the costs to which each party
is entitled. It is for the Judge who tries a
case to say whether there is any separate issue
upon which the unsuccessful party is entitled
to costs. In the absence of any direction a
Taxing Master has no jurisdiction to allow
such costs. Bush v. Rogers, 84 L. J. K.B.
686; [1915] 1 K.B. 707; 112 L. T. 945—
Bankes, J.
Petition — Funds in Court in an Action —
Payment Out — Plaintiff in the Action made
Respondent to the Petition — Such Respondent
Entitled to Separate Set of Costs out of the
Fund.] — Where five of the plaintiffs m an old
action commenced by bill of complaint in
equity petitioned the Court for payment out of
funds to the credit of that action, and made
the sixth plaintiff and certain defendants to
the bill and certain incumbrancers of the sixth
plaintiff respondents to the petition, — Held,
that the plaintiff respondent was entitled to
have a separate set of costs of the petition.
Edtvards v. Perry, 112 L. T. 1119; 59 S. J.
302— Sargant, J.
B. AFTER TEIAL BY JURY.
See also Vol. IV. 690, 2057.
Verdict for One Farthing Damages —
Opinion of Jury.] — A Judge in determining
whether he should deprive a plaintiff, who has
obtained a verdict of one farthing damages, of
his costs, ought to consider what was the view
of the jury in arriving at their verdict.
Wootton V. Sievier (No. 2), 29 T. L. R. 724
— Darling, J.
Slander.] — In an action for slander the
jury found the main issue in favour of the
plaintiff, but returned a verdict for one
farthing damages only : — Held, that the plain-
tiff was entitled to the costs of the action.
Macalister v. Steedman, 27 T. L. R. 217—
Bucknill, J.
"Issue" — "Event,"] — The plaintiff
brought an action against the defendants
claiming damages for loss sustained by him in
consequence of his having subscribed for shares
in a company in reliance on the faith of a
prospectus, of which, as he alleged, the defen-
dants had authorised the issue and which to
their knowledge contained material misstate-
ments and omissions of fact. The defendants
denied these allegations. The jury found that
the defendants did not authorise the issue of
the prospectus, and that they believed that it
was true; but they also found, in answer to
two other questions, that the prospectus con-
tained untrue statements and omissions of
fact, and that the plaintiff relied on its truth.
The Judge directed judgment to be entered for
the defendants with costs. The judgment as
drawn up purported to adjudge that the
plaintiff should recover nothing against the
defendants, and that, except as therein other-
wise adjudged, the defendants should recover
their costs against the plaintiff ; but further,
that, the jury having found that the prospectus
contained untrue statements or omissions of
fact, and that the plaintiff relied on its truth,
and the Judge having made no order as to the
costs of these issues, the plaintiff should have
his costs of these issues against the defen-
dants : — Held, that neitlier of the two above-
mentioned questions was a separate " issue,"
and that the finding of the jury on neither of
them was an " event " within the meaning of
Order LXV. rules 1 and 2. and therefore that
the plaintiff was not entitled to his costs of
eitlier of these questions against the defen-
dants, and that so much of the judgment, aa
drawn up, as purported to adjudge that the
375
COSTS.
376
plaintiff should have the costs of these issues
should be set aside. Hoioell v. Dering,
84 L. J. K.B. 198: [1915] 1 K.B. 54:
111 L. T. 790; 58 S. J. 669— C.A. See also
Quirk V. Thomas, [1915] W. N. 147—
Lush, J.
Separate Issues — Absence of Direction by
Judge as to Costs — Jurisdiction of Taxing
Master.] — In every case, whether tried by a
jury or not, the judgment should contain a
direction as to the costs to which each party
is entitled. It is for the Judge who tries a
case to say whether there is any separate
issue upon which the unsuccessful party is
entitled to costs. In the absence of any direc-
tion a Taxing Master has no jurisdiction to
allow such costs. Rush v. Rogers, 84 L. J.
K.B. 686; [1915] 1 K.B. 707; 112 L. T. 945—
Bankes, J.
Two Defendants — Plaintiff Successful
against One Defendant — Costs Payable to
Successful Defendant Recoverable from Un-
successful Defendant.] — The plaintiff sued the
two defendant companies to recover damages
for personal injuries sustained by him owing
to the negligence of the defendants' servants or
the servants of one of them. At the trial the
jury found that the accident was solely due
to the negligence of the servants of the first
defendants, and they exonerated the servants
of the second defendant company from all
blame : — Held, that the plaintiff with his
limited knowledge of the facts was entitled
to bring his action against both defendants,
that the first defendants when they were
applied to by the plaintiff ought to have said
whether they alleged negligence against the
second defendants, or not, and that, as they
had not done so, the plaintiff, although he
was liable to the second defendants for costs,
was entitled to recover those costs from the
first defendants. Vine v. National Motor Cah
Co.. 29 T. L. E. 311— Bucknill, J.
The plaintiff sued a cab company and an
onmibus company for damages in respect of a
collision, alleging negligence on the part of the
defendant companies or of one or other of
them. The cab company did not before the
issue of the writ suggest to the plaintiff that
the omnibus company were to blame for the
collision, nor did they so allege in their
defence. But as between themselves each of
the companies threw the blame on the other,
and at the trial each of them contended that
the collision was due to negligence on the
part of the other. The jury found that the
collision was due to the negligence of the cab
company alone : — Held, that, as it was reason-
able in the circumstances of the case for the
plaintiff to join both companies as defendants,
the plaintiff was entitled to an order allowing
him to add to the costs payable to him from the
cab company the costs payable by him to the
omnibus companv. Bestermann v. British
Motor Cab Co., 83 L. J. K.B. 1014; [1914]
3 K.B. 181; 110 L. T. 754; 58 S. J. 319;
30 T. L. R. 319— C.A.
Decision of Lord Coleridge, J. (29 T. L. R.
324), P.ffirmed. 76.
The plaintiff sued a motor-cab company
and an omnibus company for damages for
personal injuries. Before action the plaintiff
first applied to the omnibus company for com-
pensation, but they denied liability and said
that the accident was caused solely by the
negligence of the motor-cab company's servant.
On the refusal of the omnibus company to
admit liability, the plaintiff applied to the
motor-cab company, and they, while denying
any liability on their part, did not throw the
responsibility on to the omnibus company. At
the trial the jury found that the accident
causing the plaintiff's injuries was entirely
due to the negligence of the motor-cab com-
pany's servant, and judgment was accordingly
entered against that company and in favour
of the omnibus company : — Held, that the
plaintiff was entitled to add to the costs which
he could recover from the motor-cab company
the costs which he had to pay to the omnibus
company. Mulhern v. National Motor Cah
Co., 29 T. L. R. 677— Bankes, J.
Libel — Newspaper — Wholesale Newspaper
Agents — No Joint Publication — Acting Inno-
cently.]-— A firm of wholesale newspaper agents
which has distributed copies of a journal con-
taining defamatory matter is not liable to pay
damages in respect thereof if they did not
know that the copies distributed by them con-
tained the defamatory matter, and if their
ignorance was not due to negligence, and if
they neither knew nor were likely to know
that the journal was likely to contain defama-
tory matter. In a libel action against the
editor and the printers of a journal, and
against a firm of wholesale newspaper agents
which had distributed the journal, the Judge
directed the jury to the above effect, and ruled
that there was no joint publication by the
agents with the other defendants, and the jury
found that the newspaper agents had not acted
innocently, and awarded Is. damages as
against them. The Court thereupon deprived
the plamtiff of costs as against the newspaper
agents on the ground that the amount of
damages shewed that the jury considered that
there was no moral obliquity on their part.
Haynes v. De Beck. 31 T. L. R. US-
Darling, J.
Slander — Payment into Court — Verdict for
Smaller Sum.] — The plaintiff sued the defen-
dant for slander in respect of a statement that
the plaintiff had at a Parliamentary election
voted twice in one division. The defendant
admitted publication, and paid lOZ. ICs. into
Court in respect of the words complained of
without the meanings alleged in the innuendo,
which he denied, and pleaded in mitigation of
damages certain letters of apology which he
had written. At the trial the jury found a
verdict for the plaintiff with one farthing
damages, and Darling, J., held that the plain-
tiff was entitled to the costs of the action. On
appeal, held that there was no reason shewn
for interfering with the exercise of the Judge's
discretion in making the order that he did.
Kiimell V. Walker, 27 T. L. R. 257— C.A.
Claim for Damages for Fraudulent Mis-
representation on Sale of Business — Credit
Given for Price of Stock-in-Trade — Counter-
claim by Defendant for Stock-in-trade.]— The
377
COSTS.
378
plaintiff claimed damages for fraudulent mis-
representation whereby she was induced to
purchase a business. The stock-in-trade taken
over was valued at 90L 15s. 9d., for which
sum the plaintiff in her statement of claim
stated that she was willing to give credit in
account against the damages she claimed.
The defendant denied the alleged fraud and
counterclaimed for the 90L 15s. 9d. The jury
awarded the plaintiff 50L on her claim, and
found for the defendant on the counterclaim :
— Held, that, notwithstanding the form of the
pleadings, the claim and counterclaim must
be treated as separate actions, and that the
plaintiff was entitled to the costs of her claim
and the defendant to the costs of his counter-
claim. Sharpe v. Haggith, 106 L. T. 13;
28 T. L. K. 194— C. A.
C. TAXATION OF COSTS.
See also Vol. IV. 739, 2067.
Double or Treble Costs — " Full and reason-
able indemnity" instead thereof — Costs "in
and about" Action — Duty of Taxing Officer.]
— By section 2 of the Limitation of Actions
and Costs Act, 1842, a successful plaintiff who,
previously to that Act, would have been
entitled to double or treble costs or costs other
than the ordinary costs between party and
party, is, in lieu thereof, to be entitled to a
" full and reasonable indemnity " as to all
costs incurred " in and about " the action : —
Held, that in taxing the costs the taxing
officer must apply the appropriate scale of the
Court in which they were incurred to the costs
" in " the action, and, in addition, may allow
such costs as he thinks were reasonably in-
curred otherwise than " in " the action — that
is, " about " the action. House Property Co.
of London v. Whiteman, 82 L. J. K.B. 887;
[1913] 2 K.B. 382; 109 L. T. 43; 77 J. P. 319
— D.
Costs Payable out of a " fund or estate " or
the Assets of a Company in Liquidation — One-
Sixth of Bill Taxed off — Trustee Declared
Entitled to Indemnity for Costs out of Pro-
perty.]— Order LXV. rule 27, sub-rule 38b,
which provides that if, on the taxation of a
bills of costs payable out of a fund or estate
(real or personal) or out of the assets of a
company in liquidation, the amount of the
bill is reduced by one-sixth, no costs shall be
allowed to the solicitor leaving the bill for
taxation for drawing and copying it, nor for
attending the taxation, refers to something
in the nature of administration for the benefit
of a class of persons. The reference to the
assets of a company in liquidation does not
apply to orders made in hostile litigation, but
has come down from the period when com-
panies were wound up in the Chancery Courts ;
and the reference to a fund or estate does not
apply to a case where, as the result of an
individual contract, a party has become entitled
to be paid, if necessary, by means of the
realisation of or enforcement of a charge
against particular property. Where, there-
fore, a trustee of certain leases obtained a
declaration that he was entitled to be indemni-
fied out of the property in respect of his
personal liability and his costs, charges, and
expenses, with liberty to apply for the purpose
of giving effect to the indemnity : — Held, that
the sub-rule had no application to the case,
the costs not being payable out of a " fund
or estate " within its meaning. Buchan v.
Ayre, 85 L. J. Ch. 72; [1915] 2 Ch. 474;
60 S. J. 45— Sargant, J.
Action of Tort against Two Defendants- -
Several Defences — Severance of Costs.] — In
an action of libel against two defendants one
pleaded justification and the other did not.
The jury found a verdict against both defen-
dants for 750L, and judgment was entered for
the plaintiff against the defendants for 750Z.
and costs to be taxed : — Held, that the plain-
tiff was entitled to be allowed his costs of the
issue of justification only against the defen-
dant who had pleaded that issue and not
against the defendant who had not. Hobson
V. Leng <f Co., 83 L. J. K.B. 1624; [1914]
3 K.B. 1245; 111 L. T. 954; 59 S. J. 28;
30 T. L. R. 682— C.A.
Separate Issues — Issue of Fact and Question
of Law Decided in Favour of Plaintiffs —
Appeal on Question of Law — No Appeal on
Issue of Fact — Judgment for Defendants with
Costs — Taxation — Costs of Proving Issue of
Fact.] — When one of the parties to an action
has obtained a judgment of the Court in his
favour with general costs of the action, it is
not open to the Taxing Master upon taxation
to consider the fact that the unsuccessful party
has succeeded upon one or more particular
issues, and to allow him the costs of proving
those issues. Slatford v. Erlebach (81 L. J.
K.B. 372; [1912] 3 K.B. 155) distinguished.
Ingram d- Royle, Lim. v. Services Maritimes
du Treport (No. 2), 83 L. J. K.B. 1128;
[1914] 3 K.B. 28; 110 L. T. 967;
12 Asp. M.C. 493— C.A.
Absence of Direction by Judge as to
Costs — Jurisdiction of Taxing Master.] — In
every case, whether tried by a jury or not, the
judgment should contain a direction as to the
costs to which each party is entitled. It is
for the Judge who tries a case to say whether
there is any separate issue upon which the
unsuccessful party is entitled to costs. In the
absence of any direction a Taxing Master has
no jurisdiction to allow such costs. Bush v.
Rogers, 84 L. J. K.B. 686; [1915] 1 K.B.
707 ; 112 L. T. 945— Bankes, J.
Separate Defences and Appearances — Allow-
ance or Disallowance by Taxing Master of
Costs — Jurisdiction of Court to Review
Decision — Final Order as to Costs.] — The allow-
ing or disallowing, under sub-rule 8 of rule 27
of Order LXV., of the costs of separate
defences and aj)pearances is not a matter
purely in the discretion of the Taxing Master.
The Court has jurisdiction, under sub-rule 41
of rule 27, to review his decision upon the
question. Ager v. BJacklock if Co. (56 L. T.
890) followed. Beattie v. EhurJi (Lord)
(43 L. J. Ch. 80: [1873] W. N. 194) not
followed. Bostoell v. Coals (36 Ch. D. 444)
distinguished. Spalding v. Gamagc. Lim.
(No. 1), 83 L. J. Ch. 855; [1914] 2 Ch. 405;
379
COSTS.
380
111 L. T. 829 ; 31 R. P. C. 421 ; 58 S. J. 722—
Sargant, J.
Sub-rule 8 is not confined to interlocutory
proceedings, but applies to final orders as to
costs also. 7b.
Costs as between Solicitor and Client — Pay-
able by Third Party — Basis of Taxation.] —
The second part of Order LXV. rule 27, sub-
rule 29, provides that : " save as against the
party who incurred the same no costs shall
be allowed which appear to the taxing master
to have been incurred or increased through
over-caution, negligence or mistake, or by pay-
ment of special fees to counsel or special
charges or expenses to witnesses or other
persons, or by other unusual expenses " : —
Held, that this provision applies not only to
costs as between party and party, but also to
each of the several cases of costs as between
solicitor and client, which are distinguished
in practice, except only the case where the
costs are paj'able to the solicitor by the client
himself, that case being excluded from the
provision by the saving words at its com-
mencement; and, consequently, that where a
judgment directed that the plaintiff should
recover against the defendant a sum as
damages and also costs as between solicitor
and client, the case came within the above
provision, and the Taxing Master on taxation
had rightly disallowed special fees to counsel
and other special expenses. Cavendish v.
StTutt (73 L. J. Ch. 247 ; [1904] 1 Ch. 524)
judgment corrected. Giles v. Randall,
84 L. J. K.B. 786; [1915] 1 K.B. 290;
112 L. T. 271; 59 S. J. 131— C.A.
Counsel's Fees — Two Counsel — Short Cause
List." — The fact that an action is ordered to
be put in the short cause list has no effect
upon the taxation of costs, and is not a ground
for saying that the costs of two counsel ought
not to be allowed. Although the Court has
jurisdiction to interfere with the discretion
of the Taxing Master, it is the rarest thing
for the Court to interfere except where the
Taxing Master has gone wrong on a matter of
principle. The question whether the fees of
two counsel should be allowed is not purely a
question of quayitum, but is a question which
the Taxing Master must decide, and prima
facie the Court will not interfere in such a
case. Ginn v. Robey, [1911] W. N. 28— C.A.
Three Counsel — Special Circumstances —
Country Solicitor — Attendance at Trial in
London.] — In a passing-off action the plain-
tiffs alleged fraud against the defendants.
There was a large amount of evidence, includ-
ing a great number of exhibits, and the action
lasted ten days. On taxation the Taxing
Master disallowed the costs of three counsel
and of the attendance of the country solicitor
at the trial in London. On a summons to
review the taxation, — Held, that the Court
ought not to overnile the discretion of the
Taxing Master, and that the summons must be
dismissed on both points. Perry d Co. v.
Hessin d- Co., 108 L. T. 332; 30 R. P. C. 193;
57 S. J. 302— Eve, J.
Shorthand Notes Agreed to be Used as
Record of Evidence — Transcript — Costs in the
Action.] — Where at the trial of an action it
is agreed by both sides that a joint shorthand
note shall be taken of the evidence, to be used
if need be on appeal, but there is no arrange-
ment made as to making the costs costs in the
action or as to taking transcripts, the success-
ful party is not to be entitled to include the
expenses of the shorthand notes in his bill of
costs. Osmond v. Mutual Cycle and Manufac-
turing Co., Lim. (68 L. J. Q.B. 1027; [1899]
2 Q.B. 88), distinguished. Jones v. Llanrwst
Urban Council (No. 2), 80 L. J. Ch. 338;
[1911] 1 Ch. 393; 104 L. T. 53; 75 J. P. 98
— Parker, J.
In an action in which allegations of fraud
were made, and which lasted over seven days,
judgment was given for the defendant with
costs. On taxation of the defendant's costs
the Master allowed the costs of taking and of
transcribing a shorthand note of the proceed-
ings, and of copies for the Judge and for the
defendant's counsel. At the trial the parties
had agreed that a shorthand note of the pro-
ceedings should be taken and transcribed, and
a copy thereof supplied to the Judge. There
was no further agreement between the parties,
and nothing was said about the costs of the
shorthand note being costs in the cause. The
Judge gave no direction that they should be
costs in the cause : — Held, that these costs
were not costs in the cause, and could not be
allowed as such on taxation ; but that upon
the agreement arrived at each party must pay
one-half of the cost of taking and transcribing
the note and of the Judge's copy. Herbert v.
Royal Society of Medicine (56 S. J. 107) ex-
plained and distinguished. Seal v. Turner,
84 L. J. K.B. 1658; [1915] 3 K.B. 194;
113 L. T. 769; 59 S. J. 649— C.A.
Charge for Preparing Brief.] — A charge for
instructions for brief is in the discretion of the
Taxing Master and cannot be reviewed by
the Court unless the Taxing Master has pro-
ceeded on a wrong principle. Carter v. Apfel,
57 S. J. 97— Eve, J.
Copies of Documents for Use of Court.] —
The costs of copies of all relevant parts of
wills and other original documents for the use
of the Judge are to be allowed on taxation.
The Court ought not to be expected to use the
original documents. Parratt. In re; Parratt
V. Parratt, 58 S. J. 580— Astbury, J.
"Witnesses — Conduct Money.] — Witnesses
served with suhprmas to attend the trial of an
action are entitled to be paid conduct money
unless served prematurely, and it is the prac-
tice to allow these payments on taxation.
Carter v. Apfel, 57 S. J. 97— Eve, J.
Disallowance of Costs of Third Expert "Wit-
ness Called by Successful Party.] — Where a
successful party to an action has called three
expert witnesses without protest from the
other side, and the Court has listened to their
evidence, the costs of the third expert witness
ought not to be disallowed by the Taxing
Master unless there is some very special
reason. Maxim v. Godson, 85 L. J. Ch. 66;
60 S. J. 77— Neville, J.
381
COSTS.
382
Successful Plaintiff Attending Trial as
Witness — Plaintiff's Expenses as Witness.] —
Where the successful party to an action has
attended the trial as a witness in support of
his own case, thereby sacrificing time and in-
curring hotel and travelling expenses, the
Taxing Master, on taxation, as between party
and party, of that party's bill of costs, is
entitled to require as a condition of the inclu-
sion in his allocatur of an allowance to that
party of an amount in respect of these items,
production by the solicitor of that party either
of a voucher signed by the party acknowledg-
ing that the amount has been paid to him by
the solicitor (though such a voucher could only
be required where the amount had in fact
been paid to him by the solicitor), or of a
letter from the party intimating that he has
knowledge that the amount is being allowed
to him : — So held by Buckley, L.J., and
Kennedy, L.J. ; Yaughan Williams, L.J., dis-
senting. Harben v. Gordon, 83 L. J. K.B.
322; [1914] 2 K.B. 577; 109 L. T. 794;
58 S. J. 140— C. A.
Until the Taxing Master has issued his allo-
catur there is no concluded taxation which can
properly be made the subject of an application
to review taxation, and the Court ought not
to entertain such an application. 7b.
Observations in Sellman v. Boom (10 L. J.
Ex. 433 ; 8 M. & W. 552) and Le Brasseur and
Oakley. In re; Turrell, ex parte (65 L. J.
Ch. 763; [1896] 2 Ch. 487), adopted. lb.
Between Solicitor and Client.] — See
Solicitor.
D. EFFECT OF COUNTY COUETS ACT.
See also Vol. IV. 814. 2079.
Remitted Action — Payment by Defendant to
Plaintiff after Action Brought — Defendant
Ignorant of Writ when Payment Made —
Sum "recovered in the action."] — The day
after a writ had been issued in an action of
contract for 77L 5s. 2d., the defendant, who
was ignorant of the issue of the writ, paid the
plaintiffs 72Z. 10s., the amount for which he
considered he was liable. Subsequently the
writ was served and the action was remitted to
the City of London Court, where the plaintiffs
obtained judgment for 41. 15s. 2d., the balance
of their claim. The costs were taxed on
scale C : — Held, following Pearce v. Bolton
(71 L. J. K.B. 558: [1902] 2 K.B. Ill), that
the taxation was right, as the sum recovered
in the action within the meaning of section 116
of the Countv Court Act, 1888. was 77L 5s. Q,d.
Lamb v. Keeping, 111 L. T. 527; 58 S. J.
596— D.
E. SET-OFF OF COSTS.
See also Vol. IV. 836, 2084.
Discretionary Power of Court.] — The
Court, when exerci.sing common law juris-
diction, has, apart from any Rules of the
Supreme Court, a discretionary power, which
was formerly possessed by the superior Courts
of common law, to set off against one another
judgments for coats in separate independent
actions. Reid v. Cupper, 84 L. J. K.B. 573;
[1915] 2 K.B. 147; 112 L. T. 573; 59 S. J.
144; 31 T. L. R. 103— C. A.
At the trial of an action for assault the
plaintiff obtained a verdict against the defen-
dant. In a previous action brought by the
same plaintiff against the same defendant and
liis wife for slander, judgment had been entered
for the defendants with costs. Judgment was
directed to be entered in the assault action in
accordance with the verdict, with costs, and
on the application of the defendants the Judge
ordered that the defendants' costs in the
slander action should be set off against the
plaintiff's costs in the assault action : — Held,
that the Judge had a discretion to order the
set-off of costs, notwithstanding the plaintiff's
solicitor's lien, and that he had rightly exer-
cised his discretion. David v. Rees (73 L. J.
K.B. 729; [1904] 2 K.B. 435) considered. lb.
Appeal to House of Lords — Issues Decided
against Appellant — Appeal as to One Issue
only — Costs Ordered to be Paid at Trial.] — On
a motion to make a decree of the House of
Lords an order of the High Court when the
decree appears on its face to deal with all the
costs of the action, the Court has jurisdiction
to set off from the costs payable to the success-
ful appellant under the decree the costs of
issues upon which he failed at the trial, and
which he did not raise upon the appeal.
Deeley v. Lloyds Bank {No. 2), 57 S. J. 58—
C.A.
Costs against Damages — Discretion.1 — It is
in the discretion of the Court to allow a
set-off of damages against costs, and such
set-off will be allowed where it works no
injustice between the parties. Meynell v.
Morris, 104 L. T. 667; 55 S. J. 480— Eve, J.
F. INTEREST ON COSTS.
See also Vol. IV. 8-52, 2086.
Costs Charged by Order of Court on Estate.]
— Costs directed by a judgment or order to be
charged on land bear interest from the date
on which they become a charge. Drax, In re;
Savile v. Drax (72 L. J. Ch. 505; [1903]
1 Ch. 781), followed. MacDermott's Estate,
In re, [1912] 1 Ir. R. 166— C.A.
Interlocutory Order Directing Payment of
Costs — Interest as from Date of Order.! — An
interlocutory order directing the payment of
costs by one person to another carries interest
on the costs thereby awarded as from the date
of such order. Taylor v. Roe (63 L. J. Ch.
282; [1894] 1 Ch. 413) followed and applied.
Alexander v. Curragh, [1915] 1 Ir. R. 273—
Barton, J.
See also Stickney v. Keeble {No. 2), ante,
col. 37.
G. APPEAL FOR COSTS.
See also Vol. IV. 853, 2087.
Appeal — Discretion of Judge.] — Where
costs are in the discretion of the .Judge, the
Court of Appeal, if satisfied that he has not
applied some rule which in fact has excluded
the exercise of his discretion, will not enter-
tain an appeal from his order as to costs
383
COSTS— COUNTY COURT.
884
unless it is shewn that there was no proper
exercise of his discretion. Lever v. Masbro'
Equitable Pioneers Society {No. 2), 29 R. P. C.
225; 28 T. L. R. 294— C. A.
H. SECURITY FOR COSTS.
See Appeal ; County Coubt ; Practice.
COUNSEL.
See BARRISTER.
COUNTERCLAIM.
See PRACTICE.
COUNTY COURT.
A. Right of Audience, 383.
B. JUBISDICTION.
1. Generally, 384.
2. Admiralty. — See Shipping.
3. Workmen's Compensatioji. — See Work-
men's Compensation.
C. Transfer of Actions and Matters from
High Court, 385.
D. Transfer of Actions and Matters from
County Court to High Court, 387.
E. Practice.
1. Parties, 388.
2. Defences, 388.
3. Payment into Court, 388.
4. Trial and Judgment, 389.
5. Eyiforcing Judgment, 390.
6. Interpleader, 390.
7. 'New Trial, 391.
8. Costs, 392.
F. Appeal, 395.
A. RIGHT OF AUDIENCE.
Managing Clerk.] — A solicitor's managing
clerk, even though he is himself an admitted
solicitor, cannot appear for a party in a
workmen's compensation case in the County
Court without the special leave of the Judge.
The only solicitor with an unqualified right of
audience is the solicitor on the record, and for
this purpose there is no distinction between
an arbitration and interlocutory proceedings.
Rogers v. Holborn Borough Council, 58 S. J.
656— C.A.
B. JURISDICTION.
1. Generally.
See also Vol. IV. 883, 2091.
To Cancel Lease — " Value of the property."]
— In an action brought on the Equity side
of a County Court for rescission of a lease of
certain premises, objection was raised that the
Court had no jurisdiction, on the ground that
the value of the premises exceeded 500L : —
Held, that the words " value of the property "
in section 67, sub-section 4 of the County
Courts Act, 1888, mean the value of the free-
hold of the land the lease of which has been
granted, and not the value of the leasehold
interest which is the subject-matter of the
transaction to be dealt with by the County
Court, and therefore that the Court had no
jurisdiction to rescind the lease. Angel v.
Jay, 80 L. J. K.B. 458; [1911] 1 K.B. 666;
103 L. T. 809; 55 S. J. 140— D.
Suit for Specific Performance of Agreement
to Grant Right of Way.] — The jurisdiction
conferred on the County Court by section 33 (d)
of the County Officers and Courts (Ireland)
Act, 1877 [cf. section 67, sub-section 4 of the
County Courts Act, 1888], in suits for specific
performance includes a suit for the specific
performance of an agreement in writing for
good consideration to grant a right of way as
appurtenant to a holding. Reg. v. Westmore-
land County Court Judge (36 W. R. 477) dis-
tinguished. McArdle v. Kane, [1915] 1 Ir. R.
259— M.R.
Equity Jurisdiction — Administration Action
— Value of Subject-matter — Evidence — Trans-
fer of Action to Chancery Division.] — Where
an administration action is brought in the
County Court, and there is nothing on the face
of the proceedings to shew that the value of
the estate is above 500L, and its value can only
be ascertained by determining the question in
dispute between the parties, it is the duty of
the Judge to try that question, and, if in so
doing it transpires that the value of the estate
is above 500Z., to transfer the action to the
Chancery Division of the High Court, under
section 68 of the County Courts Act, 1888.
Sunderlayjd v. Glover, 84 L. J. K.B. 266;
[1915] 1 K.B. 393; 112 L. T. 128; 59 S. J.
91— D.
Licence Duty — Proportion Recoverable by
Lessee from Lessor — County Court — Extent of
Jurisdiction.] — The jurisdiction of a County
Court to determine, under section 2 of the
Finance Act, 1912, how much of the increase
of the duty pavable in respect of a licence by
virtue of the Finance (1909-10) Act, 1910, is
recoverable by the lessee from the grantor of
the lease, only arises where the conditions
imposed by the section are fulfilled — namely,
that the lease was granted before the Act of
1910 and that it does not contain a covenant
that the lessee shall obtain his intoxicating
liquor from the grantor only. If the grantor
of the lease disputes that those conditions have
been fulfilled, the County Court has no juris-
diction. Tratt V. Good, 84 L. J. K.B. 1550;
385
COUNTY COUET.
386
[1915] 3 K.B. 59 ; 113 L. T. 556 ; 79 J. P. 413 ;
31 T. L. K. 441— D.
Siding and Shunting Charges — Private
Waggons.] — The respondent, who was a coal
merchant, owned railway waggons which ran
over the appellants" railway, and when they
fell out of repair they were shunted on to a
siding of the appellants and the respondent
sent a man to repair them. The appellants
brought a County Court action against the
respondent for siding and shunting charges in
respect of the waggons shunted on to their
sidings for repair. The respondent had had
notice of the company's charges for these
services. The Judge held that he had no juris-
diction and that the matter should go before
an arbitrator : — Held, on appeal, that the
Judge had jurisdiction. London and North-
western Railway v. Dnerden. 85 L. J. K.B.
176 ; 113 L. T. 285 ; 31 T. L. E. 367— D.
C. TEANSFEE OF ACTIONS AND
MATTEES FEOM HIGH COUET.
See also Vol. IV. 922, 2094.
Refusal of Judge to Try Remitted Action —
Question of Jurisdiction — Duty of Judge —
Costs.] — Section 65 of the County Courts Act,
1888, provides : " Where in any action of
contract brought in the High Court the claim
indorsed on the writ does not exceed lOOL . . .
it shall be lawful for either party to the action
... to apply to a Judge of the High Court
at chambers to order such action to be tried
in any Court in which the action might have
been commenced, or in any Court convenient
thereto ; and on the hearing of the application
the Judge shall, unless there is good cause
to the contrary, order such action to be tried
accordingly " : — Held, that the words " in
any Court convenient thereto " meant any
County Court which the Judge at chambers
might deem to be convenient to the parties,
and that the Judge had a discretion to exercise
upon the question of convenience which must
vary according to the circumstances of each
case. Rex v. Mellor. 83 L. J. K.B. 996;
[1914] 2 K.B. 588; 110 L. T. 802; 58 S. J.
361; 30 T. L. E. 355— C. A.
An order having been made under the above
section by a Master at chambers remitting an
action to a County Court, and the Judge having
refused to try the action, the Divisional Court
made absolute a rule 7175/ to the Judge to hear
the action and ordered him to pay the costs
(including the costs thrown away in the County
Court) : — Held, that the County Court Judge
had no jurisdiction to enquire into what cir-
cumstances were taken into account when the
order was made or into the question whether
his Court was a convenient Court or was con-
venient to the parties, or whether any other
Court would be more convenient, or the like.
His duty was to obey the order and try the
action in due course in its proper turn, as if it
had been an action originally commenced in
his Court. Having regard to the above inter-
pretation of section 65, it could onlv occur in
some exceptional case that an order mitrht
possibly be made without jurisdiction : and if
the County Court Judge was of opinion that
the order was invalid for want of jurisdiction
it was his dutj' to give a judgment on the points
with reasons stating fully the grounds upon
which he had coiue to the conclusion that
the order was made without jurisdiction. He
should then adjourn the hearing to enable
either party to raise the question of juris-
diction in the High Court if he should desire
to do so. Held, further, that the Divisional
Court had no jurisdiction to order the Judge
to pay the costs thrown away in the County
Court. CJiurcliward v. Coleman (36 L. J.
Q.B. 57 ; L. E. 2 Q.B. 18) followed. 76.
Order of Master Remitting Action — Expira-
tion of Time for Appealing against Order of
Master — Action Set Down in County Court —
Jurisdiction of High Court to Entertain
Application for Leave to Appeal against Order
of Master,] — An action of contract having been
brought in the High Court, the Master made
an order under section 65 of the County
Courts Act, 1888, remitting the action for
trial to the County Court. After the time for
appealing against that order had expired the
plaintiffs under that section lodged the writ
and the order with the Eegistrar of the County
Court. The defendants subsequently appealed
against that order, and the High Court Judge
made an order extending the time for appeal-
ing and setting aside the order of the Master
remitting the action : — Held, that, as the
order of the Master remitting the action to
the County Court had not been appealed
against within the proper time, and the docu-
ments in the action had been lodged in the
County Court, the action had been effectually
transferred to the County Court and had
become a County Court action ; that the High
Court Judge had no longer jurisdiction to
make any order in respect of it ; and that the
order of the High Court .Judge should be set
.aside and the order of the Master restored.
Buckley v. National Electric Theatres, Lim.,
82 L. J. K.B. 739; [1913] 2 K.B. 277;
108 L. T. 871— C. A.
Contract — Amendment of Particulars — Claim
in Respect of Tort — Power of County Court
Judge to Try Action.] — In an action of con-
tract commenced in the High Court and
remitted to the Countv Court under section 65
of the County Courts' Act, 1888, the plaintiff
filed amended particulars of claim containing
a claim in respect of a tort : — Held, that the
County Court Judge had jurisdiction to try
the action upon the particulars as amended,
but that it was open to him, in the exercise
of his discretion under Order XIV. rule 12
of the County Court Eules, 1903, for any
sufficient cause to disallow the amendment.
Sprinq V. Fernandez, 81 L. J. K.B. 201 ;
[1912] 1 K.B. 294: 105 L. T. 792; 56 S. J.
110-D.
Security for Costs.] — Where an action for
tort has been remitted to the County Court
under section 66 of the County Court Act,
1888, on the plaintiffs, a limited liability
company, failing to give full security for the
defendants' costs or to satisfy a .Tud£fe of the
High Court that their cause of action is fit
to be prosecuted in the High Court, the
18
387
COUNTY COUET.
388
County Court Judge is not deprived of his
jurisdiction to make an order for the security
of the defendants' costs under section 278 of
the Companies (Consolidation) Act, 1908, as
by section 66 the remitted action and all the
proceedings therein are to be tried and taken
in the County Court as if the action had
originally been commenced therein. Plasy-
coed Collienes Co. v. Partridge, 104 L. T.
807 ; 55 S. J. 481— D.
D. TEANSFER OF ACTIONS AND
MATTERS FROM COUNTY
COURT TO HIGH COURT.
See also Vol. IV. 940, 2097.
Remittal from Chancery Division to County
Court — Power to Order Re-transfer to High
Court — Action for Infringement of Franchise.,
—The Court has power under section 126 of
the County Courts Act, 1888, to order the
re-transfer from the County Court to the
High Court of an action which has been
originally commenced in the Chancery Divi-
sion and has been remitted to the County
Court under section 69 of the County Courts
Act, 1888. General Estates Co. v. Beaver,
81 L. J. K.B. 761; [1912] 2 K.B. 398;
106 L. T. 793— D.
Discretion of Judge — " Shall deem it
desirable."" — Section 126 of the County Courts
Act, 1888. provides that an action commenced
in the County Court may be removed into
the High Court "if the High Court or a Judge
thereof shall deem it desirable that the action
or matter shall be tried in the High Court " :
— Held, that the question whether an action
should be removed into the High Court
depends upon whether the action is one which
in the opinion of the Judge is more fit to be
tried in the High Court than in the County
Court. The rule in Banks v. Hollingsworth
(62 L. J. Q.B. 239: [1893] 1 Q.B. 442)
followed. Donkin v. Pearson, 80 L. J. K.B.
1069; [1911] 2 K.B. 412; 104 L. T. 643— D.
Under section 126 of the County Courts
Act, 1888, which authorises the High Court,
if it " shall deem it desirable " that the action
or matter shall be tried in the High Court,
to order the removal into the High Court of
an action commenced in the County Court,
the jurisdiction of the Court to make the order
is not confined to cases in which it considers
that the case is in itself more fit to be tried
in the High Court than in the County Court,
but extends to cases where it thinks that for
any reason it is better that it should be tried
in the High Court. Challis v. Watson,
82 L. J. K.B. 529: [1913] 1 K.B. 547;
108 L. T. 505; 57 S. J. 285; 29 T. L. E.
271— D.
Action Removed to High Court by Certiorari
— Obligation on Plaintiff to Proceed.] — An
action in a County Court was by agreement
between the parties removed into the High
Court by certiorari on the application of the
defendants under section 126 of the County
Courts Act. 1888. As the plaintiff did not
proceed with the action, the defendants applied
that he might be ordered to proceed or that
the action should be dismissed for want of
prosecution : — Held, that the application must
be refused, as the plaintiff was not, in view
of the procedure that had been followed,
bound to proceed with the action. Garton v.
Great Western Railway (28 L. J. Q.B. 103;
1 E. & E. 258) followed. Harrison v. Bull,
81 L. J. K.B. 656; [1912] 1 K.B. 612;
106 L. T. 396 ; 56 S. J. 292 ; 28 T. L. R. 233
— C.A.
E. PRACTICE.
1. Parties.
See also Vol. IV. 933.
Joinder of Third Party as Defendant to
Counterclaim — Claim for Alternative Relief.]
— A third person cannot be joined as a defen-
dant to a counterclaim under Order X. rule 22
of the County Court Rules, 1903, 1904, against
whom an alternative cause of action is alleged
in the counterclaim by the defendant in the
action ; he can only be joined when the counter-
claim raises questions between the defendant
in the action and the plaintiff along with such
third person. Times Cold Storage Co. v.
Lowther ; Lowther v. Times Cold Storage Co.,
80 L. J. K.B. 901; [1911] 2 K.B. 100;
104 L. T. 637 ; 55 S. J. 442— D.
2. Defences.
See also Vol. IV. 938, 2096.
Statute of Limitations — Public Authorities
Protection Act.] — The Public Authorities Pro-
tection Act, 1893, is a statute of limitations
within the meaning of Order X. rule 14 of the
County Court Rules. Therefore, where a
public body are sued in the County Court and
give notice that they intend to rely on the
special defence that the plaintiff's claim " is
barred by a statute of limitations," they are
entitled under that notice to rely upon the
Public Authorities Protection Act, 1893.
Gregory v. Torquay Corporation, 81 L. J.
K.B. 385; [1912] 1 K.B. 442; 105 L. T. 886;
76 J. P. 73; 10 L. G. R. 179— C.A.
Decision of Divisional Court (80 L. J.
K.B. 981; [1911] 2 K.B. 556) affirmed. 76.
Promissory Note Payable at a Particular
Place — Presentment.] — In an action on a
promissory note in the County Court the defen-
dant wished to take the point that the note
was payable at a particular place and that
it had not been duly presented for payment.
The County Court Judge held that this was a
statutory defence, and that, as no notice had
been given of it, the defendant could not take
the point : — Held, that by virtue of section 87
of the Bills of Exchange Act, 1882, due pre-
sentment for payment was of the essence of
the plaintiff's cause of action, and so was not
a statutory defence of which the defendant
need give notice. Pritchard v. Couch,
57 S. J. 342— D.
3. Payment into Cottrt.
See also Vol. IV. 938, 2096.
Action for Negligence — Admission of Negli-
gence— Denial of Damage — Payment into
389
COUNTY COUET.
390
Court — Costs — County Court Rules — Order IX.
rule 12.^ — The plaintiffs brought a County
Court action against the defendants for injuries
caused to a horse by the negligence of the
defendants' servants in driving a tramway car.
The defendants paid a sum into Court with a
notice that they admitted the accident had
occurred through the negligence of their driver,
but that they denied the alleged damage. At
the trial the Judge found that the sum paid
in was sufficient to satisfy the plaintiffs'
claim : — Held, that as the plaintiffs were not
entitled to recover without proof of actual
damage the defendants' notice complied with
Order IX. rule 12 of the County Court Eules,
and the defendants were entitled to judgment
with costs as from the date of payment in.
Munday, Lim. v. London County Council,
32 T. L. R. 128— D.
4. Trl^l and Jcdgmext.
See also Vol. IV. 944, 2098.
Adjournment of Trial — High Court Action
Involving Similar Issue — "Good cause."] —
Bv Order XII. rule 16 of the Countv Court
Eules, 1903 and 1904, '• the Court may, in its
discretion, on the application of any party
. . . make an order postponing or adjourning
for good cause the trial of any action or matter
upon such terms, as to costs or otherwise, as
may be just ..." : — Held, that the pendency
of an action in the High Court involving an
issue similar to that raised in an action in the
County Court may be " good cause " for the
making of an order by the County Court Judge
under the above Eules adjourning the trial of
the County Court action until after the trial
of the action in the High Court. But the
County Court Judge should exercise a judicial
discretion in regard to the making of such an
order. Hammond v. Jackson, 83 L. J. K.B.
380; [1914] 1 K.B. 241; 110 L. T. 110— D.
Amendment — Salvage Action — No Salvage
Proved — Award for Toarage.l — In an action
brought by the owners, master, and crew of a
steamer against the owners of a ketch, her
cargo and freight for salvage, the Judge found
that no salvage services were in fact rendered,
but on the application of the plaintiffs he
directed the pleadings to be amended by sub-
stituting the word " towage " for " salvage,"
and awarded to the plaintiffs a sum in respect
of towage services : — Held, that in the absence
of consent to an amendment the Judge ought
to have given judgment for the defendants.
The Anne, 30 T. L. E. 544— D.
Nonsuit after Opening of Case and before
Evidence Called.] — In an action in the County
Cnurt, the Judge nonsuited the plaintiff at the
close of the opening of his case, without his
consent, and without giving him an oppor-
tunity of calling evidence : — Held, that the
County Court Judge had, in those circum-
stances, no power to nonsuit the plaintiff.
Cross V. Rix, 77 J. P. 84; 11 L. G. E. 151;
29 T. L. R. 85— D.
Power of Judge to Enter Judgment for Less
than Verdict.] — Where a verdict in the County
Court is wrong only by being in excess of
the amount recoverable in the County Court,
the Judge has jurisdiction to reduce it to such
an amount as the jury could properly give.
Cresswell V. Jones, 106 L. T. 797 ; 28 T. L. R.
395— D.
Power of Judge to Alter Note of Judgment
after Delivery.] — A County Court Judge is
entitled to make an alteration in his note of a
judgment subsequently to the delivery thereof
for the purpose of explanation or the clearing
awav of a possible misunderstanding. Lowery
V. iValker, 80 L. J. K.B. 138; [1911] A.C.
10; 103 L. T. 674; 55 S. J. 62; 27 T. L. E.
83— H.L. (E.)
Verbal Expression of Judicial Opinion —
Different Form Subsequently in Writing.l —
Consideration of the question what constitutes
the judgment of a County Court Judge where,
after having tried a case, he expresses his
judicial opinion upon it at first verbally and
afterwards in a different form in writing.
Higginson v. Blackwell Colliery Co. ; Pitchford
V. Same, 84 L. J. K.B. 1189; 112 L. T. 442;
31 T. L. E. 95— C.A.
5. Enforcing Judgment.
See also Vol. IV. 951, 2098.
Order of County Court Judge — Action on
such Order.] — An action is maintainable upon
an order of a County Court Judge made in
the exercise of his bankruptcy jurisdiction
(Bray, J., dissentiente). Savill v. Dalton,
84 L. J. K.B. 1583; [1915] 3 K.B. 174;
113 L. T. 477; [1915] H. B. E. 154; 59 S. J.
562— C.A.
Attachment of Debts — Judgment Debt Pay-
able on a Certain Date — Issue of Garnishee
Proceedings before that Date — Judgment
" Unsatisfied."! — A judgment in the ordinary
County Court form adjudging that the plain-
tiff recover from the defendant a certain
sum, and ordering that the defendant pay
that sum to the Eegistrar of the Court on
a specified future date, cannot, before that
date has arrived, be properly prescribed as
" still unsatisfied " within the meaning of
Order XXVI. rule 1 of the County Court
Eules, 1903-1909, and therefore the plaintiff
is not, before that date, entitled under that
rule to take garnishee proceedings for the
purpose of obtaining paj'ment to him of a
debt due from another person to the defen-
dant. White V. Stemiing, 80 L. J. K.B.
1124; [1911] 2 K.B. 418: 104 L. T. 876;
55 S. J. 441; 27 T. L. E. 395- C.A.
6. Interpleader.
See also Vol. IV. 9.58, 2103.
Claim to Proceeds of Goods Taken in Execu-
tion and Sold — Claim by Assignee of Execution
Creditor — Assignment of Debts Owing or to
Become Owing — Absence of Title to Goods
themselves.] — A claimant in an interpleader
sunmions issued under section 157 of the
County Courts Act, 1888, to the proceeds of
goods taken in execution and sold under the
provisions of section 156 of the Act, must, in
order to succeed, shew that he had a good title
391
COUNTY COUET.
392
to the goods themselves. Therefore, where
the claimant is the assignee of all the book
and other debts of the execution creditor, and
his real object is to enforce under the assign-
ment his right to the particular judgment
debt, a summons under section 157 is not his
appropriate remedy. Plant v. Collins, 82 L. J.
K.B. 467: [1913] 'l K.B. 242; 108 L. T. 177;
29 T. L. R. 129— C. A.
Judgment of Divisional Court (Ridley, J.,
and Lush, J.) (81 L. J. K.B. 868; [1912]
2 K.B. 459) affirmed. 76.
Remitted Interpleader Issue — Jurisdiction
to Try therewith Claim for Damages.] —
Order XXXIII. rule 11 of the County Court
Rules, 1914, which prohibits a claim for
damages in a remitted interpleader issue, is
not ultra vires, having regard to the County
Courts Act, 1888, ss. 157 and 164. Salbstein
V. Isaacs ,{ Sons, Lim., 85 L. J. K.B. 109;
60 S. J. 106— D.
Qucere, per Lush. J. — Whether Order XXVII.
rule 8, under which a claim for damages by
the claimant against the execution creditor or
the high bailiff in interpleader proceedings in
the County Court must be made in those pro-
ceedings, applies to a claim against a stranger
to the proceedings: for example, the solicitor
of the execution creditor who gives instructions
for the seizure of the goods, and whether a
claim for damages against the latter can
therefore be brought by the claimant inde-
pendently of the interpleader proceedings. lb.
Scale of Costs."— Bv Order LIII. rule 15 of
the County Court' Rules, 1903 and 1914, " The
' subject matter ' in an interpleader proceed-
ing shall mean (1) in the case of a claimant
the amount of the value of the goods his claim
to which is allowed, plus the amount of the
damage (if any) adjudged, ..." -.—Held,
that the above rule applies to all interpleader
proceedings in the County Court, and that
therefore the value of the goods seized, and
not the amount paid into Court, determines
the scale on which the costs of a successful
claimant must be taxed. Brown v. Lilley
(7 T. L. R. 427) discussed and held not to
be good law now. Tarrij v. Witt. 84 L. J.
K.B. 950 : 112 L. T. 1034 : 31 T. L. R. 207— D.
7. New Trial.
See also Vol. IV. 962. 2104.
Action under 21. Heard by Registrar —
Jurisdiction.] — A County Court Judge has
jurisdiction under section 93 of the County
Courts Act, 1888, to entertain an application
for a new trial in a matter heard before the
Registrar of the County Court sitting by virtue
of "the powers conferred by section 92 of the
Act. Rosin v. Rank, 81 L. J. K.B. 854;
ri912] 2 K.B. 228; 106 L. T. 986; 56 S. J.
597; 28 T. L. R. 449— D.
Verdict for Plaintiff— Power of County Court
Judge to Grant New Trial on Ground of No
Evidence."! — A County Court Judge who has
entered judgment for the plaintiff on a verdict
of the jury in his favour, has no power to grant
a new trial on the ground that there was no
evidence to go to the jurv. Clarke v. West
Ham Corporation. 83 L. j". K.B. 1306; [1914]
2 K.B. 448; 110 L. T. 1007; 78 J. P. 309;
12 L. G. R. 744; 58 S. J. 496; 30 T. L. R.
389— D.
Trial by Jury — Intimation by Jury During
Defendant's Case that they haa Heard Enough
Evidence — Verdict for Plaintiff — Misconduct of
Jury." — An action was brought by the plain-
tiff, who was the tenant to the defendants of
certain premises, for interfering with his water
supply. The defence was that the shortage
of water was not due to any defect in the
supply, but to the waste of the water by
the plaintiff. The plaintiff's case having been
closed, three witnesses were called for the
defendants to prove the defence alleged. The
jury then interposed and said that they had
' heard enough evidence of that class, and
I asked that the defendants' expert might be
called. Thereupon the defendants' counsel,
I thinking that the jury were in his favour,
I although he had six other witnesses to the
facts in dispute in Court, called his expert
j and closed his case. The jury returned a
verdict for the plaintiff. The learned Judge,
upon the application of the defendants,
granted a new trial upon the ground of mis-
conduct on the part of the jury : — Held, that
the intimation of the jury having misled the
defendants" counsel and also the learned
Judge as to the view which they took of the
case, there were materials upon which he
was entitled to order a new trial upon the
ground that the jury had misconducted them-
selves and had procured a miscarriage of
justice; and that, as the exercise of his dis-
cretion in ordering a new trial was based
upon proper materials, no appeal lav from his
decision. Biggs v. Evans. 106 L. t. 796— D.
8. Costs.
See also Vol. IV. 964, 2104.
Discretion.] — A County Court Judge has a
discretion to deprive a successful defendant
of costs where he has been party to a trans-
action that is held to be contrary to public
policy. Dann v. Curzon, 104 L. T. 66;
27 T. L. R. 163— D.
Scale."' — The plaintiffs commenced an action
in the High Court claiming to recover
130/. 10s. lOii. After the writ was issued
the defendant paid into Court the sum of
98Z. 75. 6d., and the action was then remitted
to the County Court. In that Court the
plaintiffs claimed 32L 3s. id., but the de-
fendant denied all liability. The County
Court Judge gave judgment for the plaintiffs
for 16/., which amount, added to the amount
recovered in the High Court, ■^t'ould have
entitled the plaintiffs to costs upon scale in
the County Court ; but the Judge only
allowed the plaintiffs costs on Scale A, on
the ground that the evidence given by the
plaintiffs' managing director was not satis-
factory : — Held, that the County Court Judge
was not entitled upon this ground to deprive
the plaintiffs of their costs on the proper
scale. Hudsons. Lim. v. De Halfort,
108 L. T. 416; 29 T. L. R. 257— D.
393
COUNTY COUET.
394
Judgment for Part of Claim under
Order XI Y. — Judgment for Defendant in
County Court — Costs of Proceedings under
Order XI Y. — Discretion of County Court
Judge.] — In an action founded on contract,
brought in the High Court, the plaintiflfs took
out a summons for judgment under Order
XIV. An order was made on the summons
that if the defendant did not pay to the
plaintiffs within two days the sum of 31. they
should be at liberty to sign final judgment
for that amount ; that the defendant should
have liberty to defend the action as to the
residue of the claim ; and that the action
should be tried in the County Court. The
defendant paid the sum of 31. in conformity
with the order, and at the trial the County
Court Judge gave judgment for him with
costs on Scale B. Upon taxation of the
defendant's costs, the Registrar allowed him
certain items relating to the proceedings in
the High Court under Order XIV., and the
Judge upheld the taxation : — Held, that the
costs in question were in the discretion of the
County Court Judge, and that he had juris-
diction to allow them to the defendant.
Mentors, Lim. v. Evans, 81 L. J. K.B. 1111;
[1912] 3 K.B. 174; 107 L. T. 82; 56 S. J.
502— C. A.
Taxation — Limitations of Actions and Costs
Act, 18*2 — Indemnity as to Costs Incurred " in
and about any action."' — Where an action is
brought in the County Court for a matter in
respect of which the plaintiff, if successful,
is entitled under the Limitations of Actions
and Costs, Act, 1842, to receive a " full and
reasonable indemnity as to all costs, charges,
and expenses incurred in and about any
action," the plaintiff's costs, so far as they
are incurred " in the action," ought to be
taxed according to the County Court scale ;
but the plaintiff is further entitled, under the
indemnity against costs incurred " about the
action," to recover all costs reasonably in-
curred by him as preliminary to the action,
including the costs of taking counsel's opinion
as to whether the action would lie. House
Property Co. of London v. Whiteman,
82 L. J. K.B. 887; [1913] 2 K.B. 382;
109 L. T. 43; 77 J. P. 319— D.
Claim and Counterclaim — Both Parties Suc-
cessful— Taxation.] — In an action in the
County Court, where the plaintiff" succeeds
on the claim and the defendant on the
counter-claim, each claim, for the purpose of
taxation of costs, must be treated as a
separate action, and each item of costs
allowed in each action, according to the
scale applicable to the amount therein re-
covered, must be divided into the part
referable to the prosecution of the claim and
counterclaim respectively and the part refer-
able to the resisting of the counterclaim and
claim respectively, each party paying to the
other that part as to which he is unsuccessful.
Fox V. Central Silkstone Collieries, 81 L. J.
K.B. 989; [1912] 2 K.B. 597; 107 L. T. 85;
56 S. J. 634— D.
Payment into Court Admitting Liability but
Denying Damage.] — See Munday. Lim. v.
London County Council, supra, 3. Payment
INTO Court.
Taxation Between Party and Party — Fees to
Two Counsel.] — Un a taxation between party
and party in the County Court fees to two
counsel cannot be allowed except in proceed-
ings under the Rivers Pollution Prevention
Acts, which are specially dealt with by Order
LIII. rule 45 (2) (6). Bates v. Gordon
Hotels, Lim., 82 L. J. K.B. 441; [1913]
1 K.B. 631; 108 L. T. 510; 57 S. J. 303;
29 T. L. R. 298— D.
On a party and party taxation in the
County Court in a case not under the Rivers
Pollution Prevention Acts, the Registrar
allowed fees to two counsel, and the County
Court Judge refused to review his taxation
in this respect. The plaintiffs, who were
unsuccessful in the County Court, appealed
and specifically objected to two items only —
namely, the brief fee allowed to senior
counsel for the defendants and the fee to him
for a conference. The Divisional Court
having held that there was no jurisdiction to
allow fees to two counsel, the defendants
applied to have the case remitted to the
County Court to allow the Registrar to
exercise his discretion as to the proper fee to
allow to one counsel only : — Held, that as the
plaintiffs had only objected to the specific
items, and the defendants had not carried in
cross-objections, the Court could not send the
case back to the County Court, but could
only allow the appeal simpliciter. lb.
Costs of Taxation — Registrar of County
Court — Practising Solicitor — Successful Defen-
dant in Action in his own Court — Appearance
in Person — Taxation by Himself of his Bill of
Costs — Right to Costs as Solicitor.] — A Regis-
trar of a County Court, a practising solicitor,
was sued by a company in his own Court for
negligence in his capacity as Registrar and
high bailiff. He defended in person, but was
represented by counsel at the hearing, and
judgment was given in his favour with costs.
He brought in his bill of costs for taxation,
and gave notice of a taxation before himself.
On the taxation, which was attended by the
plaintiffs' solicitor under protest, the de-
fendant disallowed certain items. The County
Court Judge, on the plaintiffs' application,
reviewed the taxation and struck off certain
other items. The Divisional Court, in dis-
missing an appeal by the plaintiffs, decided
(80 L. J. K.B. 232; [1911] 1 K.B. 87) that
section 41 of the County Courts Act, 1888,
which pi-ovides that no Registrar of any Court
shall be engaged as solicitor for any party in
any proceeding in his Court, did not debar
the defendant from appearing in person to
defend himself ; that he was entitled to the
same costs as if he had employed a solicitor,
except in respect to items which the fact of
his acting directly rendered unnecessary ; that
as the plaintiffs, although by section 43 of
the Act they had a choice of Courts, had
elected to sue the defendant in his own Court,
and as section 118 requires all costs to be
taxed by the Registrar of the Court in which
they were incurred, the defendant was of
necessity the oflicer to tax liis own bill of
395
COUNTY COUKT.
396
costs ; and that the County Court Judge had
not taxed on a wrong principle : — Held, by
the Court of Appeal, approving of the judg-
ment of the Divisional Court, that the only
person who could tax the defendant's costs
was of necessity the defendant himself ; that
his costs as solicitor defendant had been
rightly taxed in accordance with the County
Court Eules, 1903-1908, Order LIII. rule 25;
and, further, that after what had taken place
in the County Court and in the Divisional
Court it was not open to the plaintiffs to
object to the jurisdiction of the Eegistrar to
tax the costs. Tolputt v. Mole, 80 L. J.
K.B. 686; [1911] 1 K.B. 836; 104 L. T. 148;
55 S. J. 293— C. A.
Order for Costs — "Judgment,"] — An order
for costs is a " judgment '" within the mean-
ing of Order XXXII. rule 2 of the County
Court Eules. Cotcern v. Nield [1914] W. N.
349— D.
F. APPEAL.
See also Vol. IV. 968, 2109.
No Request to Judge to take Note — No Note
taken — Point of Law taken by Judge.] — A
County Court Judge raised a point of law
himself at a trial, heard some discussion and
some authorities cited on the matter, and
came to a conclusion contrary to the opinion
he had first expressed : — Held, that, for the
purposes of an appeal, the point of law had
been raised at the trial. Abrahams v. Dim-
7nock, 84 L. J. K.B. 802; [1915] 1 K.B. 662;
112 L. T. 386; 59 S. J. 188; 31 T. L. E. 87—
C.A.
It is not a condition precedent to an appeal
under section 120 of the County Courts Act,
1888, that the Judge should have taken a note
of the point of law raised, or that he should
have been requested to take the note, or, if
he has not taken a note, that he should certify
to that effect. The Court, where the Judge
has not taken a note, has, under Order LIX.
rule 8, power to determine the appeal on the
materials that it deems sufficient. Cook v.
Gordon (61 L. J. Q.B. 445) considered. lb.
Special Defence to Jurisdiction — Point of
Law not taken at Hearing.^ — Every question
of law upon which it is desired to appeal from
a County Court must be raised at the trial,
and this rule applies when the ground of
appeal is that the jurisdiction of the County
Court has been ousted by statute. Taylor v.
National Amalgamated Approved Society,
83 L. J. K.B. 1020: [1914] 2 K.B. 352;
110 L. T. 696; 78 J. P. 254; 12 L. G. E. 525
— D.
Section 67, sub-section 1 of the National
Insurance Act, 1911, provides that every dis-
pute between an approved society and an
insured person who is a member of such
society relating to anything done or omitted
to be done by such person or society shall be
decided in accordance with the rules of the
society subject to appeal to the Insurance
Commissioners. Section 27 of the National
Insurance Act. 1913. provides that any dispute
between an approved society and any person
as to whether that person is or was at any
date a member of that society shall be decided
in like manner as a dispute between an
approved society and an insured person who
is a member thereof, and section 67 of the
Act of 1911 is to apply accordingly. By
rule 43 of the defendant society disputes
between insured members and the society
were to be decided by arbitration. The
plaintiff claimed to be a member of the
defendant society and entitled as such member
to a sum of money under a contract of insur-
ance with them, but they denied that he was
a member. He accordingly brought an action
in the County Court. The defendants gave
notice of a special defence under section 67,
sub-section 1 of the National Insurance Act,
1911, to the effect that the Court had no juris-
diction to try the case, and asking that the
claim should be referred to arbitration in
accordance with the rules of their society.
The objection to jurisdiction under section 27
of the Act of 1913 was not, however, taken
at the hearing. The County Court Judge
decided in favour of the plaintiff, holding that
section 67 of the Act of 1911 applied only to
disputes between the society and persons who
were admittedly members, and did not apply
to a case where the real dispute was whether
the claimant was a member of the society or
not. The defendants appealed on the ground
(inter alia) that the jurisdiction of the
County Court was ousted by section 27 of the
Act of 1913 -.—Held, that, although the
matter was one touching the jurisdiction of
the County Court, as the objection was not
taken at the hearing it could not be raised by
wav of appeal. Smith v. Baker (60 L. J.
Q.B. 683; [1891] A.C. 325) followed. lb.
Claim Exceeding Two Pounds Heard by
Registrar by Consent of Parties.] — The Eegis-
trar of a County Court purported to sit as
deputy for the County Court Judge, at the
request of the Judge and with the consent of
the parties, in order to hear and determine
a claim for the sum of three guineas : — Held,
that no appeal lav from his decision.
Mclnally v. Blackledge, 80 L. J. K.B 882;
[1911] 2 K.B. 432; 104 L. T. 642— D.
Compensation for Injuries by Accident —
Order for Detention of Ship.] — No appeal lies
directly to the Court of Appeal from an order
for the detention of a ship made by a County
Court Judge under section 11 of the Work-
men's Compensation Act, 1906 : — So held by
Cozens-Hardy, M.E., and Fletcher Moulton,
L.J. : Farwell. L.J., dissenting. Panagotis
V. ""Pontiac'' (Owners), 56 S. J. 71;
28 T. L. E. 63- C.A.
Right to Appeal Without Leave — Action for
Damages for Trespass not Exceeding 20/. and
an Injunction — Claim for Injunction With-
drawn.]— The plaintiff claimed 201. damages
for trespass to a party wall, and a mandatory
injunction to remove the building erected by
the defendant upon the party wall. At the
hearing before the County Court Judge the
plaintiff withdrew the claim for an injunction
after the Judge had intimated that he never
granted mandatory injunctions, and judgment
397
COUNTY COURT— COVENANT.
398
was entered for the plaintiff for 15/. damages.
The defendant appealed without having
obtained the leave of the County Court Judge :
— Held, that the proviso to section 120 of the
County Courts Act, 1888, prohibiting an
appeal without the leave of the County Court
Judge in an action where the debt or damage
claimed does not exceed 201., except where
the title to a corporeal or incorporeal heredita-
ment has come into question, only applies
where the claim is solely one for debt or
damage which does not exceed 20/., and that
it does not apply where an injunction is
claimed in the particulars of claim, even
though such claim is subsequently withdrawn.
Dixon V. Brown, 84 L. J. K.B. 1248;
[1915] 2 K.B. 294; 112 L. T. 1033— D.
Refusal to Nonsuit — Eyidence Subsequently
Given for Defendant — Appeal by Defendant —
Right of Court to Consider Appeal on all the
Evidence."^ —A County Court Judge refused, at
the close of the plaintiff's case, the defendant's
application for a nonsuit on the ground of
no evidence. The defendants then called
evidence, judgment being eventually given
for the plaintiff. The defendants appealed,
and contended that the Court could not con-
sider the appeal on the whole of the evidence,
but only the question whether the nonsuit had
been rightly refused : — Held, that the Court
could decide the case on the whole of the
evidence, and that on the evidence given by
both parties in the present case the appeal
should be allowed. Great Western Railway
V. Rimell (27 L. J. C.P. 201; sub notn. Great
Northern Railway v. Rimell, 18 C.B. 575),
considered. Groves v. Cheltenham and East
Gloucestershire Building Society, 82 L. J.
K.B. 664; [1913] 2 K.B. 100; 108 L. T. 846
— D.
Judges Differing in Opinion.] — Where on an
appeal to the Divisional Court from a County
Court the Judges differ in opinion, it is in
the discretion of the junior Judge to with-
draw his judgment. Poulton v. Moore,
83 L. J. K.B. 875; 109 L. T. 976; 58 S. J.
156; 80 T. L. E. 155— D. See s.c. in C.A.,
84 L. J. K.B. 462: [1915] 1 K.B. 400:
112 L. T. 202; 31 T. L. E. 43— C. A.
Hearing in Absence of Respondent — Judg-
ment — Jurisdiction to Re-hear Appeal.] —
Where a Divisional Court has heard an
appeal from a County Court in the absence
of the respondent and has given judgment
for the appellant, the Court has no juris-
diction, after the judgment has been drawn
up and perfected, to reinstate and re-hear
the appeal. Hession v. Jones. 83 L. J.
K.B. 810; [1914] 2 K.B. 421; 110 L. T. 773;
30 T. L. E. 320— D.
Appeal by Next Friend of Infant — Security
for Costs.] — An infant plaintiff by her next
friend brought an action in the County Court
under the Employers' Liability Act, 1880,
when judgment was given for the defendants.
The plaintiff by her next friend gave notice
of appeal, and the defendants applied to the
Divisional Court for an order for security for
costs, giving evidence on affidavit that the
next friend would be unable, if unsuccessful,
to pay the defendants' costs. Counsel for the
plaintiff contended that the Court should look
into the merits, and, if they thought there
were reasonable grounds for the appeal, should
not order security. The Court, following
Swain v. Follows d Bate, Lim. (56 L. J.
Q.B. 310; 18 Q.B. D. 585), without examining
into the merits, made an order for security
for costs. Wilcox v. Wallis Crown Cork and
Syphon Co., 58 S. J. 381— D.
COUNTY RATE.
See POOE LAW.
COVENANT.
See also Vol. IV. 1019, 2119.
Repugnancy — Words Negativing Personal
Liability of Covenantors — Rejection of Repug-
nant Words — Limitation of Personal
Liability.] — A., holdmg as executor of P. an
undivided share of certain houses which had
been mortgaged to secure 2,000/. and interest,
conveyed and released the share to B., C, D.,
and E. (who held the other undivided share as
trustees of H.j, subject to the mortgage. By
the deed of conveyance B., C, D., and E.,
" as such trustees, but not so as to create any
personal liability on the part of them or either
of them," covenanted with A. to pay the
2,000/. and interest and to keep him indemni-
fied from all claims on account thereof. The
mortgagees subsequently sold the houses for
less than the sums due to them, and they
demanded the deficiency from A., who paid it
to them after notice to B., C, D., and E., and
then claimed repayment of it from B., C, D.,
and E. : — Held, that as the words in the
covenant with reference to the personal
liability of the covenantors would, {f given
effect to, destroy and not merely qualify any
personal liability under the covenant, they
were repugnant to the covenant, and must be
rejected, and that therefore B., C, D., and E.
were personally liable under the covenant to
repay to A. the moneys he had paid to the
mortgagees. Wailing v. Lewis, 80 L. J.
Ch. 242; [1911] 1 Ch. 414: 104 L. T. 132 —
Warrington, J.
Joint and Several Covenants — Lessee Cove-
nanting with Himself and Others — Invalidity
of Covenants — Covenants Running with Land
— Assignees not Bound." — A covenant by one
with himself and otiiers jointly is void.
Therefore, if a lessee purports to covenant with
himself and other lessors jointly, although the
covenant if valid is of such a kind as to run
with the land, yet an assignee of the term is
not bound in law or in equitv. Ellis v. Kerr
(79 L. J. Ch. 291: [1910]" 1 Ch. 529) fol-
lowed. Napier v. Williams, 80 L. J. Ch.
399
COVENANT— CEIMIXAL LAW.
400
298 ; [1911] 1 Ch. 361 ; 104 L. T. 380 ; 55 S. J.
235 — Warrington, J.
Performance Rendered Impossible by Acts
of Covenantees — Lapse of Time.^ — By an
agreement, made in 1788, the defendants cove-
nanted to maintain and keep in good repair a
drain or culvert, used for draining a meadow
belonging to the plaintiffs. In 1843 the plain-
tiffs had a new culvert made for draining
the meadow, since when, until the commence-
ment of this action, they had not called on
the defendants to perform the covenant. As
the result of work done in 1901 by the local
authority, at the request and expense of the
plaintiffs, the original culvert was entirely
blocked up, and could not be reinstated : —
Held, that the plaintiffs were not entitled to
a declaration that the defendants were liable
under the agreement. Worcester College,
Oxford, V. Oxford Canal Naviqation. 81 L. ,7.
Ch. 1: 105 L. T. 501; 55 S. J. 704— Joyce, J.
Appeal compromised, 81 L. J. Ch. 405— C. A.
In LeasesJ — See IjAndlord and Tenant.
Restrictive Covenant — User of Premises."! —
See Vendor and Purchaser.
In Restraint of Trade.! — See Contract.
CRIMINAL
INFORMATION.
Assault.] — The Court declined to grant a
rule for a criminal information against a
superintendent of police, being of opinion —
first, that the affidavits did not establish any
personal connection of the superintendent with
assaults alleged to have been committed by
police officers under his control; and secondly,
that, as there was nothing to shew that
ordinary proceedings for assault would be an
insufficient remedy, there was no prima facie
case made out for the granting of a criminal
information. Bowen, Ex parte, 27 T. L. E
179— D.
Application by Private Person."— The Court
will not grant a rule nisi for a criminal
information for libel on tlie application of a
private person who does not hold a public
office or position. Freeman-Mitford, Ex parte,
30 T. L. R. 693— D.
CRIMINAL LAW.
A. Persons, Liability of.
I. Persons Capable of Committing Offences.
1. Persons under Coercion and Compulsion,
401.
2. Insane Persons, 402.
II. Degrees of Criminality, 402.
B. Offences Generally, 404.
C. Particular Offences.
I. Against Property of Individuals.
A. Burglary and Housebreaking, 404.
B. False Pretences, 405.
C. Falsification of Accounts, 407.
D. Forgery. 407.
E. Larceny and Receivers.
A. Larceny.
1. The Offence.
a. The Taking, 409.
b. Demanding Money with
Menaces, 409.
2. What are the Subjects of
Larceny, 410.
3. Persons icho may Commit, 411.
4. Taking in Particular Methods,
41-2.
0. Indictment, 413.
6. Trial.
i. Evidence, 413.
ii. Sentence, 414.
B. Receivers of Stolen Property,
414.
F. Malicious Injury and Damage to
Property, 416.
II. Against the Persons of Individuals.
A. Assault, Battery, Wounding, dc, 417.
B. Murder and Manslaughter, 418.
C. Rape and Indecent Assaults on Women
and Children, 421.
D. Suicides, 422.
III. Conspiracy, 422.
IV. Against King and Government, 423.
V. Against Public Justice, 424.
Yl. Against Public Peace.
A. Libel, 425.
B. Riding or Going Armed, 425.
VII. Against Public Morals and Police.
A. Bigamy, 426.
B. Bribery, 426.
C. Habitual Criminals, 426.
D. Incest, 432.
E. Keeping Brothel, 432.
F. Offences under Prevention of Crimes
Act, 1871, 433.
G. Offences under Vagrancy Act — See
Vagrant.
H. Procuration, 433.
D. Procedure and Practice.
I. Jurisdiction, 434.
n. Indictment, 435.
III. Trial.
1. .Arraignment, 437.
2. Pleas, 437.
3. Summing-up, 439.
4. Recognizances, 439.
401
CRIMINAL LAW.
402
IV. Jdries, 440.
V. Evidence.
1. Confessions and Admissions, 442.
2. Depositions, 444.
3. Statements by Deceased Persons, 445.
4. Accomplices, 445.
5. Competency of Witnesses.
a. Prisoners, 446.
/). Other Witnesses, 450.
6. Evidence to Credit, 451.
7. Practice at Trial, 451.
8. Evidence of other Acts and Offences,
453.
9. Previous Convictions, 456.
10. Proof and Effect of Convictions, 456.
11. Documents, 456.
VI. Veedict, 457.
\LL. Judgment and Punishment.
1. Sentence of Hard Labour, 458.
2. Sentence of Whipping, 458.
3. Recommendation for Expulsion, 459.
4. Length of Sentence, 459.
5. Alteratio7i of Sentence, 461.
VIII. Appeal.
1. WJien Appeal Lies, 464.
2. Legal Aid, 436.
3. Hearing, 466.
4. Fresh Evidence, 467.
6. Grounds of Appeal, 467.
6. Effect of Quashing of Conviction, 471.
IX. Bail, 472.
X. Costs, 472.
A. PERSONS, LIABILITY OF.
I. PEESONS CAPABLE OF COMMITTING
OFFENCES.
1. Persons under Coercion and Compulsion.
See also Vol. IV. 1105, 2125.
Marital Compulsion — Larceny — Misdirec-
tion.]— Conviction of married woman, who was
indicted jointly with her husband for larceny
quashed on the ground that her defence, that
she acted under the coercion of her husband,
was not left to the jury with such a direction
as would enable them to apply their minds to
the true legal position. Rex v. Caroubi,
107 L. T. 415 ; 76 J. P. 262 ; 23 Cox C.C. 177 ;
28 T. L. R. 248— CCA.
Acts done by Wife in Presence of
Husband — No Evidence of Relationship —
Conviction — Subsequent Ascertainment of
Relationship — Appeal — Benefit of Presumption
of Coercion.] — Where a iiusband and wife are
indicted jointly, and it appears at the trial
that the wife's acts were all done in the
presence of her husband, but there is no evi-
dence of the prisoners' relationship and the
prisoners are convicted, the wife is entitled,
on its being subsequently established that she
was the wife of the other prisoner, to have the
benefit of the presumption that she was acting
under the coercion of her husband, if her acts
were in fact done in his presence, and to
have the conviction quashed. Rex v. Green,
110 L. T. 240; 78 J. P. 224; 24 Cox C.C. 41;
30 T. L. R. 170— CCA.
2. Insane Persons.
See also Vol. IV. 1111, 2126.
Insanity — Uncontrollable Homicidal Im-
pulse.]— Where the prisoner knew the nature
and quality of his act, and knew that it was
wrong, but through disease of the mind was
unable to control a homicidal impulse, he was
found to be insane, so as not to be responsible,
according to law, for his actions at the time
when the act was done. Rex v. Hay, 75 J. P.
480; 22 Cox C.C. 268— Darling, J.
Murder — Defence of Insanity — Direction
to Jury.] — On a trial for murder, where the
defence is insanity, the prisoner must be pre-
sumed to be sane and possessed of sufficient
reason to be conscious of his crime unless he
establishes the contrary and proves that he
was suffering from such a disease of the mind
as to be unconscious of the nature and quality
of his act, or if so conscious, not to be con-
scious of the diilerence between right and
wrong. Rex v. Coelho, 30 T. L. R. 535—
CCA.
It is not sufficient in all cases where the
defence is " insanity " to direct the jury that
they should consider merely whether the
prisoner at the time of the commission of the
act charged knew the nature and quality of his
act, and whether or not he was doing wrong.
Rex V. Fryer, 24 Cox C.C. 403— Bray, J.
They may be directed to consider further
whether he was in such a state of mental
disease or natural mental infirmity as to
deprive him of the capacity to control his
actions. lb.
Medical Evidence as to Sanity of Prisoner
— Time wrhen such Evidence may be Given.] —
On the trial of the appellant it was indicated
by his counsel in cross-examination that the
defence of insanity was to be set up, but while
the case for the Crown was still proceeding
it was ascertained that no evidence would be
called for the defence. At the end of the case
for the Crown a medical witness was called to
say that the prisoner was sane : — Held, that
such evidence was properly given at the time
it was. Rex v. Abramovitch, 76 J. P. 287;
23 Cox C.C 179— CCA.
Mental Deficiency — Recommendation to
Mercy.] — Evidence of mental deficiency
accepted by a jury does not necessarily entitle
them to return a special verdict on the ground
of insanity. Rex v. Alexander, 109 L. T.
745 ; 23 cJx C.C. 604— CCA.
II. DEGREES OF CRIMINALITY.
See also Vol. IV. 1116, 2126.
Common Purpose — Shooting vffith Intent to
Murder— Two Night Poachers— Shot Fired by
One of the Poachers.] — The ai>pellant and
another man were engaged in night poaching,
403
CKIMIXAL LAW.
404
one of them having a gun and the other a
stick. Finding that they ■were followed by
three keepers, the two men turned round, one
of them saying " Stand back, stand back,"
and the other, putting the stick that he was
carrying on his shoulder, continued to retire
facing the keepers. One of the keepers then
ran forward to the poacher who carried the
gun ; the other two ran towards the poacher
with the stick. The poacher with the gun
fired at one of the keepers, injuring him
seriously. On the trial of the two poachers
for shooting with intent to murder, the jury
found both prisoners guilty ; they said they
were unable to say which of the two fired the
shot, but that they were agreed that the inten-
tion was to prevent arrest at all costs, even to
the extent of murder, and that the prisoners
were acting with a common purpose. Ko
evidence was offered by the prosecution of
any actual arrangement made between the
prisoners to act with a common purpose other
than their actions and conduct when they be-
came aware of the keepers approaching them :
— Held, that the jury could infer the common
purpose from the actions and gestures of the
prisoners. Rex v. Pridmore, 77 J. P. 339;
29 T. L. R. 330— CCA.
Accessory before the Fact — Burglarious
Entering — Special Verdict.] — The appellant
and one King were convicted of burglariously
entering a dwelling house, the jury having
found in the case of the appellant that he had
handed a jemmy to King with the knowledge
that it was wanted for a burglary, though he
did not know that it was wanted for this parti-
cular burglary : — Held, that on this finding
the appellant was not an accessory before the
fact to the burglary, and therefore his convic-
tion must be quashed. Rex v. Lomas,
110 L. T. 239 : 78 J. P. 152 : 23 Cox CC 765 ;
58 S. J. 220; 30 T. L. R. 125— CCA.
Accessory after the Fact — "Receive, har-
bour, and maintain " Principal Felon —
Evidence.^ — The appellant was charged, as an
accessory after the fact, in an indictment
which alleged that she did feloniously
"receive, harbour, and maintain" one G.,
who was charged with the felonious possession
of a mould for coining counterfeit money.
There was evidence that the appellant, a day
or two after G. s arrest, for the purpose of
preventing his conviction, removed from G.'s
workshop a number of fragments of other
coining moulds, which were adducible, and
were in fact produced, in evidence against G.
The jury were directed that if they were satis-
fied that the appellant removed the things
from G.'s workshop knowing that he was
guilty of committing the felony charged
against him, and did so for the purpose of
assisting him to escape conviction, they should
find her guilty. The jury having convicted
the appellant, — Held, that the indictment pro-
perly charged the appellant as an accessory
after the fact, and that the conviction was
right. Rex v. Levy, 81 L. J. K.B. 264;
[1912] 1 K.B. 158: i06 L. T. 192: 76 J. P.
123: 22 Cox CC 702: 28 T. L. R. 93— CCA.
Aiding and Abetting.] — See Chivers v.
Hand, post, Sunday.
B. OFFENCES GENERALLY.
See also Vol. IV. 1133.
Felony — Cause of Action — Stay of Proceed-
ings until Defendant Prosecuted.] — An action
for damages based upon a felonious act on the
part of the defendant committed against the
plaintiff is not maintainable so long as the
defendant has not been prosecuted or a reason-
able excuse shewn for his not having been
prosecuted, and the proper course for the Court
to adopt in such a case is to stay further pro-
ceedings in the action until the defendant has
been prosecuted. Smith v. Selwyn, 83 L. J.
K.B. 1339; [1914] 3 K.B. 98; 111 L. T. 195
— CA.
C. PARTICULAR OFFENCES.
I. AGAINST PROPERTY OF
INDIVIDUALS.
A. Burglary and Housebreakino.
See also Vol. IV. 1158, 2128.
Entering Premises by Opening Door with
False Key — Knowledge of Occupier —
" Breaking."] — The appellant induced a pawn-
broker's assistant to let him have the key of
his employer's shop. Having obtained the
key, the appellant took an impression of it,
and from it had a false key made with which
he opened the outer door of and entered the
shop, intending to steal therein. The pawn-
broker's assistant, in allowing the appellant to
have the key, was acting with the knowledge
of the police and of the pawnbroker in order
to secure the arrest of the appellant. The
appellant having been convicted of breaking
and entering the shop with intent to steal
therein, — Held, that the conviction was right,
inasmuch as there was a breaking into the
shop against the will of the pawnbroker, not-
withstanding that the latter, though his
assistant, had, with the object of securing the
appellant's arrest, furnished the means
whereby the appellant had obtained admittance
to the premises. Reg. v. Johnson (Car. & M.
218) distinguished. Rex v. Chandler, 82 L. J.
K.B. 106; [1913] 1 K.B. 125; 108 L. T. 352;
77 J. P. 80; 23 Cox CC 330; 57 S. J. 160;
29 T. L. R. 83— CCA.
Breaking into Dwelling House — Intent.] —
The appellant was indicted under section 57
of the Larceny Act, 1851, for having broken
into a house with intent to commit a felony
therein. There was ample evidence that the
appellant broke and entered the house. In
summing up to the jury the Recorder said,
" When a man is found in another man's house
the duty is cast upon him of giving an account
of how he came there ; and it is for you to
say whether his statement sounds like an
honest statement, or whether it is a dishonest
statement made up on the spur of the moment
when he is caught." The appellant was con-
victed : — Held, that the statement by the
Recorder in his summing-up was to be taken,
not as a direction of law and a statement as
to the onus of proof, but as merely a state-
405
CEIMINAL LAW.
406
ment of common sense as to what would be
expected of a man found in such circum-
stances ; and therefore that there had been
no misdirection. Rex v. Wood, 76 J. P. 103
—CCA.
Possession of Housebreaking Implements
by Night — Tools of Prisoner's Trade — Lawful
Excuse — Onus of Proof.] — It is a lawful
excuse within the meaning of section 58 of
the Larceny Act, 1861, on a charge of being
in possession of housebreaking implements by
night, that the implements in question were
the tools of the trade followed by the prisoner,
and his own property. If, however, other cir-
cumstances are proved in evidence from which
it is open to the jury to infer that he intended
to use the tools for a felonious purpose, they
may properly convict him. Rex v. Ward,
[1915] 3 K.B. 696; 60 S. J. 27— CCA.
B. False Pretences.
See also Vol. IV. 1211, 2130.
Attempt to Obtain Money by False Pre-
tences— Insurance against Burglary — Intention
to Defraud — Pretended Burglary — No Applica-
tion for Insurance Moneys — Preparation to
Commit Offence not an Attempt.] — A jeweller,
with the intention of defrauding underwriters
with whom he was insured against burglary,
represented to a police sergeant that a burglary
had taken place upon his premises, and that
he had been robbed of 1,500Z. worth of jewel-
lery. For the purpose of carrying out his
scheme he had secreted the jewellery on his
premises, and was found by the police sergeant
tied up in his shop as if by burglars. He had
made no application for the insurance moneys,
but was convicted of the offence of attempting
to obtain them by false pretences : — Held, that
there was no attempt to commit the offence,
but only a preparation for the commission
thereof, and that the conviction must be
quashed. Dictum of Parke, B., in Reg. v.
Eagleto7i (24 L. J. M.C 158, 166; Dear CC
515, 538) approved and followed. Rex v.
Robinson, 84 L. J. K.B. 1149; [1915] 2 K.B.
342; 113 L. T. 379; 79 J. P. 303; 59 S. J.
366; 31 T. L. R. 313— CCA.
Effect of False Pretences on Mind of
Prosecutor.] — It is not an essential element in
the offence of attempting to obtain goods by
false pretences that the mind of the prosecutor
shall have been affected by the false pretences.
Rex V. Light, 84 L. J. K.B. 865 ; 112 L. T.
1144; 59 S. J. 351; 31 T. L. R. 257— CCA.
Persons Acting Together — Money Obtained.]
—If money is obtained as the result of a false
pretence made by two persons acting together,
both are liable to be convicted of obtaining
money by false pretences. Rex v. Grosvenor,
111 L. T. 1116; 24 Cox CC. 468— CCA.
By Conduct — False Representation —
Assent.] — If a person tacitly assents to a false
representation made by another, in conse-
quence of which money is obtained, he may be
guilty of false pretences by conduct. Rex v.
Grosvenor, 111 L. T. 1116; 24 Cox CC. 468—
CCA.
Credit — Fraud other than False Pretences —
Intent to Defraud.] — If a man makes state-
ments of fact which he knows to be untrue, and
makes thein for the purpose of inducing persons
to deposit with him money which he knows
they would not deposit but for their belief in
the tnith of his statements, and if he intends
to use the money so obtained for purposes
different from those for which he knows the
depositors understand from his statements that
he intends to use it — then, although he may
intend to repay the money if he can, and
although he may honestly believe, and may
even have good reason to believe, that he will
be able to repay it, he has an intent to
defraud. Rex v. Carpenter, 76 J. P. 158;
22 Cox CC. 618— Channell, J.
Continuing False Pretence — Question as to
False Pretences or Obtaining Credit.] — Though
goods are obtained under a contract, if the
contract is induced by a false pretence, and
the false pretence is a continuing one and
operates on the mind of the prosecutor, the
goods so obtained are obtained by false pre-
tences. The question of how long the false
pretences continue to operate is for the jury.
Reg. V. Martin (36 L. J. M.C. 20; L. E.'l
CCR. 56) followed. Reg. v. Moreton,
109 L. T. 417; 23 Cox CC. 560— CCA.
Representations as to Price of Property Sold
— Materiality of Evidence as to Value.] — On
a charge of obtaining money by false pre-
tences, the question whether evidence as to the
value of the property, in respect of which false
pretences are made, is or is not material to the
charge must be decided according to the
circumstances of each case ; the general test to
be applied is whether the prosecutor was in-
duced by deceit to act to his injury. Dictum
of Buckley, J., in London and Globe Finance
Corporation, In re (72 L. J. Ch. 368; [1903]
1 Ch. 728), cited with approval. Rex v.
Newton, 109 L. T. 747; 23 Cox CC. 609—
CCA.
Evidence — Proof of other Fraudulent Trans-
actions— Admissibility.] — Upon the trial of an
indictment charging the prisoner with having
obtained goods and credit by false pretences,
and also with having obtained credit by fraud
other than false pretences, evidence was
admitted that, on two previous occasions, the
prisoner had obtained goods from other persons
on credit by false pretences. The jury having
convicted the prisoner, — Held, that evidence
of the previous frauds by the prisoner was
inadmissible as it did not tend to shew that
he was guilty of the offences charged in the
indictment, and that the conviction must there-
fore be quashed. Rex v. Fishrr. 79 L. J.
K.B. 187; [1910] 1 K.B. 149: 102 L. T. Ill:
74 J. P. 104; 22 Cox CC 270: 26 T. L. R.
122— CCA.
False Pretence that Defendant was Carrying
on a Genuine Business — Evidence — Receipts
for Payments made by Defendant — Banker's
Pass Books — Admissibility.] — Upon an indict-
ment charging the defendant with obtaining
goods by false pretences, the issue at the trial
was whether he was, at the time of the alleged
407
CRIMINAL LAW.
408
offence, carrying on a genuine and bona fide
business : — Held, that receipts given to him
by firms who had sold him goods were relevant
to the issue and admissible in evidence on his
behalf. Held, further, that entries in the
defendant's banker's pass books shewing pay-
ments made by him were also relevant, and
were properly receivable in evidence. Rex v.
Sagar, 84 L. J. K.B. 303; [1914] 3 K.B. 1112;
112 L. T. 135: 79 J. P. 32— CCA.
Advertisement for Sale of Pigs — Leave Given
to Call Further Evidence.] — An indictment for
false pretences in connection with the sale of
pigs alleged (in effect) that the appellant
falsely pretended that he was carrying on a
bona fide business as a pig dealer; that he had
a certain class of pigs for sale ; and that he
was then able to supply the prosecutor with
pigs of a specified age and description. On
the hearing of the appeal, leave was given
to call additional evidence (which was accepted
by the Court) that, in accordance with custom,
pigs sold by the appellant were delivered direct
by the farmers to his customers : — Held, that
the fact of the appellant not having then in his
possession the pigs advertised by him for sale
was not in itself suflScient to establish the false
pretences alleged in the indictment. Rex v.
Jakeman, 110 L. T. 832; 24 Cox CC 153—
CCA.
C Falsification of Accounts.
See also Vol. IV. 1251, 2135.
Falsifying Motor-Cab Taximeter — Taximeter
not in Operation during Journey.] — The
prisoner was the driver of a motor cab belonging
to a motor cab company. According to the
ordinary practice of the company, upon a
driver's applying at the office a cab was
allotted to him, and he received a taximeter
sheet. When he returned to the yard the taxi-
meter clerk took the readings of the taximeter
which were entered upon the driver's sheet,
and after the clerk had made up the account
the driver signed the sheet. The driver was
required to hand over 75 per cent, of his
takings to the company and was allowed to
retain 25 per cent. On four different days the
prisoner drove two persons in the motor cab
and was paid a fare. During these journeys
he kept the flag up and the taximeter was not
therefore in operation. Upon an indictment
under section 1 of the Falsification of Accounts
Act, 1875, charging that the prisoner, being a
servant to the company, unlawfully made
a false entry in a certain account, to wit, a
taximeter attached to a motor cab, the prisoner
was convicted : — Held, that the section applied
to the falsification of a mechanical contrivance
for recording the amount of money received,
such as a taximeter, and that the prisoner was
therefore properlv convicted. Rex v. Solo7nons,
79 L. J. K.B. 8 ;" [1909] 2 K.B. 980 ; 101 L. T.
496 ; 73 J. P. 467 ; 22 Cox CC 178 ; 25 T. L. R.
747— CCA.
D. Forgery.
See also Vol. IV. 1252, 2136.
Bill of Exchange — Acceptance by Member of
Firm — Acceptance in Name of Firm — Absence
of Authority — Acceptance by Procuration —
"Person."] — Upon an indictment under sec-
tion 24 of the Forgery Act, 1861, charging
the prisoner with having, with intent to
defraud, written an acceptance to a bill of
exchange in the name of a firm of which he
was a member, the jury found that he had no
authority to accept the bill in the firm's name,
that he had no honest belief that he had such
authority, and that he had an intent to
defraud : — Held, that there had been an
acceptance of the bill by the prisoner in the
name of another person in a manner similar
to an acceptance by procuration, and that he
was properly convicted of the offence charged
in the indictment. Rex v. Holden, 81 L. J.
K.B. 327: [1912] 1 K.B. 483; 106 L. T. 305;
76 J. P. 143: 22 Cox G.C. 727; 56 S. J. 188;
28 T. L. E. 173— CCA.
Obtaining Money by "Forged instrument"
— Letter by Servant Asking for Advance of
Money for Benefit of Master — Business
Letter.] — The prisoner pleaded guilty to an
indictment under section 7 of the Forgery Act,
1913, charging him with obtaining certain
money by means of " a certain forged instru-
ment, to wit, a forged request for the payment
of one pound." The document containing the
request was a letter purporting to come from,
and to be signed by, a man in the employment
of the prosecutor, to whom the letter was
addressed. This letter requested the prosecutor
to hand to the bearer the sum of IL, stating
that it was required for the purpose of hiring
a drain machine to clear out a drain on
premises belonging to the prosecutor. On a
Case being stated, — Held, that the letter was
an " instrument " within the meaning of sec-
tion 7. Reg. v. Rileij (65 L. J. M.C 74:
[1896] 1 Q.B. 309) followed. Rex v. Cade,
83 L. J. K.B. 796; [1914] 2 K.B. 209;
110 L. T. 624 ; 78 J. P. 240 : 24 Cox CC. 131 ;
58 S. J. 288; 30 T. L. E. 289— CCA.
Letter with False Postmark.] — An
envelope bearing a false postmark and con-
taining a betting slip which purports to have
been made out before the race to which it
relates has been run, whereas in fact it has
been made out after the race, — Held to be a
" forged instrument " within section 38 of the
Forgery Act, 1861. Rex v. Hoicse, 107 L. T.
239; 76 J. P. 151; 23 Cox CC 135; 56 S. J.
225; 28 T. L. E. 186— CCA.
Alteration of Names in Subpoena.] — Where
a practitioner obtained subpoenas for the
attendance of witnesses, and, finding that the
witnesses could give no evidence, substituted
other names in the subpcenas, — Held, that,
though he had committed an irregularity, he
had not been guiltv of forgerv. Taylor, In re,
81 L. J. P.C 169;' [1912] A.C. 347; 105 L. T.
973; 28 T. L. E. 206— P.C.
Selling Forged Stamps — Obliterated
Stamps. — By section 13 of the Stamp Duties
Management Act, 1891, " Every person who
does, or causes or procures to be done . .
any of the acts following ; that is to say . .
(8) Knowingly sells or exposes for sale or
utters or uses any forged stamp, or any stamp
409
CEnilXAL LAW
410
which has been fraudulently printed or
impressed from a genuine die . . . shall be
guilty of felony ..." : — Held, that the word
" stamp " in the above section is used in its
ordinarj' meaning, and includes a stamp which,
at the time of the sale, has been obliterated.
Rex V. Loicden, 83 L. J. K.B. 114; [1914]
1 K.B. 144; 109 L. T. 832; 78 J. P. Ill;
23 Cox C.C. 643 ; 58 S. J. 157 ; 30 T. L. K. 70
—CCA.
E. Larceny and Receivers.
A. Larcexy.
1. The Offence.
a. The Taking.
See also Vol. IV. 1318, 2137.
Larceny from the Person — Simple Larceny
— Asportation.] — The prosecutor was on the
platform of a railway station, when the
prisoner came behind him, put his hand into
his trousers pocket, took hold of his purse and
pulled it up to the edge of the pocket, when the
purse caught in a belt worn by the prosecutor,
who then grasped the purse and put it back
in his pocket. Upon an indictment charging
the prisoner with larceny from the person and
also with simple larceny, — Held, that there
had been no sufficient asportation of the purse
to constitute larceny from the person, but
that the prisoner could be properly convicted
of simple larceny. Rex v. Taylor, 80 L. J.
K.B. 311; [1911] 1 K.B. 674; 75 J. P. 126;
27 T. L. R. 108— CCA.
Passing of Property .1 — The appellant took
two bicycles to an auctioneer and put them
in for sale by auction at a reserve price of
21. 3s. By a fraudulent arrangement between
the appellant and one S., the latter was to
bid the reserve price at the auction. S. did
so bid, and the bicycles were knocked down
to him, but he did not pay the price to the
auctioneer. The appellant, taking advan-
tage of the auctioneer's practice to pay over
the money for which an article was sold at
the auction before he received the money
from the bidder, went to the auctioneer and
obtained payment of the 21. 3s. The appel-
lant having been indicted for and convicted
of larceny of the 21. 3s., — Held, that the
conviction must be quashed, inasmuch as the
auctioneer having intended to part not only
with the possession of, but with the property
in, the 21. 3s., the offence was not larceny.
Semble, the offence committed was obtaining
the monev by false pretences. Rex v.
Fisher, 103 L. T. 320; 74 J. P. 427;
22 Cox C.C 340; 26 T. L. R. 589— CCA.
b. Demanding Money with Menaces.
Srr also Vol. IV. 1380.
Threat to Publish Attacks upon Commercial
Company — Demand of Money to Avoid Pub-
lication.t— Section 45 of the Larceny Act. 1861,
enacts that whosoever shall with menaces
demand any money of any person, with
intent to steal the same, shall be guilty of
felony. The appellants, by their agent,
threatened the chairman of a company that
attacks upon the company would be published
in a paper which would have the effect of
ret ing the market price of the shares of
th' ^ompany, and the agent demanded 600L
in gold as the price of refraining from pub-
lishing those attacks : — Held, that the appel-
lants could properly be convicted of the
offence of demanding money with menaces,
with intent to steal the same. Rex v. Boyle,
83 L. J. K.B. 1801; [1914] 3 K.B. 339;
111 L. T. 638; 78 J. P. 390; 58 S. J. 673;
24 Cox C.C 406; 30 T. L. R. .521— CCA.
2. What are the Subjects of Larceny.
See also Vol. IV. 1350, 2138.
Cheques — Evidence of Misappropriation of
eeds — Direction to Jury.] — The appellant
w ■ indicted for the larceny as a servant of
three cheques, drawn by his employers and
made payable to him or order for the purpose
of their being used in the discharge of their
debts. For reasons of convenience the appel-
lant had opened a private account, out of
which he paid his employers' liabilities,
recouping himself by paying into this private
account moneys received on their behalf. He
alleged that this practice was known to his
employers, and that it was in pursuance
thereof that he paid in the above-mentioned
cheques. The employers proved facts shew-
ing that the proceeds of these cheques had
been misappropriated to the appellant's own
use. In summing-up, the Recorder directed
the jury that they must be satisfied that the
appellant intended to and did deprive his
employers of " these three sums " : — Held,
a misdirection, as the jury ought to have
been told that they must be satisfied that the
appellant had misappropriated the cheques
themselves, and not the proceeds. Rex v.
Hampton, 84 L. J. K.B. 1137; 113 L. T. 378
—CCA.
Fixtures — Tenancy Agreement Entered into
with Intention to Steal Fixtures.! — Where a
person enters into an agreement for the lease
of a house with the fraudulent intention of
stealing the fixtures on getting into posses-
sion, and where in fact he steals the fixtures
on entering into possession, he is guilty of
larceny under section 31 of the Larceny Act,
1861. ' Rex V. Munday (2 Leach C.C 991)
followed. Rex v. Richards, 80 L. J. K.B.
174; [1911] 1 K.B. 260; 104 L. T. 48;
75 J. P. 144; 22 Cox C.C 372— CCA.
Lead Fixed in or to a Building. 1 — Con-
viction of the appellant for the simple larceny
of lead piping quashed on the ground that
the facts given in evidence did not prove that
offence, though they might prove an offence
under section 31 of the Larceny Act, 1861, of
stealing lead fixed in or to a building. Rex
V. Molloy, 111 L. T. 166; 78 J. P. 216;
24 Cox C.C. 226— CCA.
Winkles — "Pish."] — Section 24 of the
Larceny Act, 1861. enacts that " WTiosoever
shall unlawfully and wilfully take . . . any
fish in any water ... in which there shall be
411
CEBIIXAL LAW.
412
any private right of fishery " shall, on sum-
mary conviction, be liable to certain penalties :
" Provided, that nothing hereinbefore con-
tained shall extend to any person angling
between the beginning of the last hour before
sunrise and the expiration of the first hour
after sunset ; ..." A corporation had a right
of several fishery in a part of a tidal river.
The appellant, at a time of low water, collected
winkles from small pools of water left by the
ebbing tide on mud banks of the river within
the limits of the fishery : — Held, first, that the
proviso in the section did not restrict the
general words thereof to the offence of taking
fish by angling, and that winkles were " fish "
within the meaning of the section ; and
secondly, that there was evidence upon which
the Justices could find that the pools from
which the winkles were taken were " water "
within the meaning of the section. Caygill v.
Thwaite (49 J. P. 614; 33 W. E. 581) con-
sidered and followed. Leavett v. Clark.
84 L. J. K.B. 2157; [1915] 3 K.B. 9:
113 L. T. 424: 79 J. P. 396; 13 L. G. E. 894;
31 T. L. E. 424— D.
3. Persons who may Commit.
See also Vol. IV. 1361, 2140.
Larceny of Wife's Property by Husband —
"About to leave or desert his wife."" — If a
man steals his wife's property, intending tc
leave or desert her when the theft is dis-
covered, or at some other time convenient to
himself, he steals the property when " about
to leave or desert " his wife, although a con-
siderable time may have elapsed between the
act of larceny and actual desertion. Rex v.
King (No. 1), 110 L. T. 783; 24 Cox C.C. 146
—CCA.
Person " Entrusted " — Person Having
" Beceived " Property for or on Account of
Another — Company."^ — The appellant was con-
victed upon an indictment under section 1 of
the Larceny Act. 1901. charging him with
having fraudulently converted to his own use
or benefit property entrusted to him for certain
specified purposes, and property received by
him for or on account of another person. The
appellant alleged that the property had been
" entrusted " to or " received " by a company
of which he was a director : — Held, afi&rming
the conviction, that a person may be
" entrusted " with property, or may " receive "
it " for or on account of " another person
within the meaning of the section, notwith-
standing that the property is not delivered to
him directly by the owner, and that the owner
does not know of his existence and has no
intention of entrusting the property to him.
If the accused has obtained or assumed the
control of the property of another person under
circumstances whereby he becomes entrusted,
or whereby his receipt becomes a receipt for
or on account of another person, and fraudu-
lently converts it or the proceeds, he commits
an offence within the section. Rex v. Grubb,
84 L. J. K.B. 1744; [1915] 2 K.B. 683;
113 L. T. 510: 79 J. P. 430; 59 S. J. 547;
31 T. L. E. 429— CCA.
Taxi-cab Driver — Agreement with Owner
Respecting Hire of Cab — Failure to Pay to
Owner Proportion of Cab Fares.] — The appel-
lant, who was the driver of a taxi-cab, hired
a taxi-cab upon the terms that he should
pay 75 per cent, of the receipts to the owner
of the cab and retain 25 per cent, on his own
account. There was, however, no written
contract between him and the owner of the
cab, although the sheet which the appellant
signed when he took the cab out shewed that
the driver's proportion of the receipts was
25 per cent, and that the balance of the receipts
was due from the driver to the owner. The
appellant kept the taxi-cab out for seven
days, and when it was returned to the owner "s
yard the meter registered the total receipts
during that period as 81. is. 8d., of which
sum the proportion due from him to the
owner amounted to 61. 3s. 6d. The appellant,
having failed to pay that amount to the
owner of the cab after a demand had been
made upon him for payment, was arrested
and charged under section 1 of the Larceny
Act, 1901, with fraudulently misappropriating
that sum : — Held, that there was evidence
upon which the jury could find that the appel-
lant had received the 61. 3s. 6d. for and on
behalf of the owner of the cab, and that he
had unlawfully and fraudulently converted
the same to his own use. Rex v. Messer,
82 L. J. K.B. 913; [1913] 2 K.B. 421;
107 L. T. 31: 76 J. P. 124; 23 Cox C.C 59;
28 T. L. E. 69— CCA.
4. Taking in Particular Methods.
See also Vol. IV. 1372, 2140.
Larceny by a Trick — Goods on Sale or
Return — Power Given to Pass Property in
Goods.] — Semble that, where the owner of an
article is induced, by a false representation
made by another with fraudulent intent that
he has a customer who desires to purchase
such an article, to deliver the article to that
other on sale or return for the purpose of
his endeavouring to get the supposed cus-
tomer to buy it from him, the case is one
not of larceny by a trick, but of obtaining
goods by fraud. WJiitehorn v. Davison,
80 L. J. K.B. 425; [1911] 1 K.B. 463;
104 L. T. 234— CA.
Card Playing — Drugging of Prosecutor —
Payment of Losses under Influence of Drug —
Omission to Direct Jury — Misdirection.] — At
the trial of an offence of larceny by a trick
the jury should be fully directed as to the
legal requisites of the offence. Rex v.
Hilliard, 83 L. J. K.B. 439; 109 L. T. 750;
23 Cox C.C. 617— CCA.
The prosecutor and the appellant were
fellow passengers in a compartment of a
corridor carriage on a journey from Padding-
ton Station. After getting into conversation
with the appellant, the prosecutor, at the
invitation of the appellant, drank some
whisky (which he alleged was drugged) out
of a bottle. Shortly afterwards a third man
appeared and produced a pack of cards, and
the prosecutor testified that at the suggestion
of the appellant, and under the influence of
413
CEIMINAL LAW.
414
the drug, he played cards with the third man
and lost 10/. : — Held, that ou the facts the
jury could draw the inference that the appel-
lant was guilty of the offence of larceny by
a trick, but that as the summing-up did not
contain a sufficient direction as to the legal
requisites of the oii'ence, there must be an
acquittal. Reg. v. Buckmaster (57 L. J.
M.C. 25, 27; 20 Q.B. D. 182, 187) approved
and followed. 76.
Taxi-cab Driver not Paying over Percentage
of Takings.] — Conviction of the appellant, a
taxi-cab driver, for misappropriating 61. 3s. 6d.
" had and received for and on account of "
the taxi-cab owner, by failing to pay over
75 per cent, of his takings, according to the
arrangement under which he took out the
cab, affirmed. Rex v. Messer, 82 L. J. K.B.
913; [1913] 2 K.B. 421; 107 L. T. 31;
76 J. P. 124; 23 Cox C.C. 69; 28 T. L. E.
69— CCA.
5. Indictment.
See also Vol. IV. 1392, 2140.
Treasurer of Friendly Society — Fraudulent
Conversion of Funds — Prosecution — Sanction
of Attorney-General,] — Before commencing a
prosecution against a person for fraudulent
conversion of property entrusted to him for a
specific purpose, it is not necessary to obtain
the sanction of the Attorney-General unless he
is a trustee, technically so-called, appointed
under a deed or will. Rex v. Davies (No. 1),
82 L. J. K.B. 471; [1913] 1 K.B. 573;
108 L. T. 576 ; 77 J. P. 279 ; 23 Cox C.C. 351 ;
57 S. J. 376; 29 T. L. E. 300— CCA.
Quaere, whether the sanction is necessary in
the case of a trustee, technically so-called,
appointed by an instrument in writing other
than a deed or will. Ih.
Two Distinct Acts of Larceny — Joinder of
Two Accused Persons in Second Count. 1 —
Section 5 of the Larceny Act, 1861, which
provides that " It shall be lawful to insert
several counts in the same indictment against
the same person for any number of distinct
acts of stealing, not exceeding three, which
may have been committed by him against the
same person within the space of six months
from the first to the last of such acts," does
not authorise the joinder of a count against one
person with a second count against him and
another person. If such a joinder has been
made, and objection has been duly taken
thereto at the trial, the Court cannot treat the
case as coming within the proviso to section 4
of the Criminal Appeal Act, 1907, and therefore
will quash the conviction on such an indict-
ment. Rex V. Edivards (or Gilbert). 82 L. J.
K.B. 347 ; [1913] 1 K.B. 287 ; 108 L. T. 815 :
77 J. P. 135; 23 Cox C.C. 380; 57 S. J. 187 ;
29T. L. K. 181— CCA.
6. Trial.
i. Evidence.
See also Vol. IV. 1406, 2142.
Fraudulent Misappropriation of Property —
Act First Disclosed by Voluntary Witness in
Court of Law — "Compulsory process" — Pro-
tection from Prosecution.]— Section 85 of the
Larceny Act, 1861, provides that no person
shall be entitled to refuse to answer any
question in any civil proceeding in any Court
concerning certain misdemeanours, and that
he shall not be liable to be convicted of any of
those offences by any evidence whatever in
respect of any act done by him, if he shall at
any time previously to his being charged with
such offence have first disclosed such act on
oath, in consequence of any compulsory process
of any Court of law or equity, in any action,
suit, or proceeding which shall have been bona
fide instituted by any party aggrieved : — Held,
that the disclosure of such act by a voluntary
witness in a civil action on cross-examination
and without objection to answer the questions
being taken is not a disclosure " in consequence
of any compulsory process " of any Court of
law or equity within the meaning of the sec-
tion, and that he is liable to be convicted of
an offence under the Larceny Act, 1901, in
respect of the act so disclosed. Rex v. Noel,
84 L. J. K.B. 142; [1914] 3 K.B. 848;
112 L. T. 47— CCA.
ii. Sentence.
Cliild — Power of Court to Order Whipping. !
— The power of the Court under section 4 of
the Larceny Act, 1861, to order a male person
under sixteen years of age convicted under
that section to be whipped as well as
imprisoned is not taken away in the case where
such person is a child within the meaning of
the Children Act, 1908, and has been com-
mitted to custody in a place of detention under
section 106 of the Act in lieu of being sentenced
to imprisonment. Rex v. Lydford, 83 L. J
K.B. 589; [1914] 2 K.B. 378; ilO L. T. 781
78 J. P. 213; 24 Cox C.C. 142; 58 S. J. 363
30 T. L. E. 349— CCA.
Person to Execute Sentence.] — The
proper person to execute the sentence is the
sheriff or the deputy he appoints for that
purpose. lb.
B. Eeceivers of Stolen Property.
See also Vol. IV. 1417, 2146.
No Guilty Knowledge at Time of Receipt —
Subsequent Knowledge.] — The appellant was
charged with having on April 24, 1911, received
a horse knowing it to have been stolen. It
appeared that at the time he received it he
did not know that it had been stolen, but that
subsequently on being told the fact he refused
to give it up unless he was repaid the amount
he had paid to the person from whom he got
it. The appellant was convicted : — Held, that
the conviction must be quashed. Rex v.
Johnson, 75 J. P. 464; 27 T. L. E. 489— CCA.
Goods Picked up on Prosecutor's Land.] —
The appellant was convicted of receiving pig
iron which had been picked up from the bed
or bank of a canal. The property was laid in
the canal proprietors, but there was no evidence
as to how the pig iron came to be where it was
or to whom it in fact had belonged : — Held,
that the conviction must be quashed on the
415
CEIMINAL LAW.
416
ground that there was no direction to the
jury to consider the case on the basis that
the picking up of the iron was not necessarily
larceny. Rex v. White, 107 L. T. 528;
76 J. P. 384; 23 Cox C.C. 190— CCA.
Recent Possession of Stolen Property —
Onus of Proof. ^ — In the absence of any reason-
able explanation by the appellant as to his
recent possession of the stolen goods, the con-
viction upheld on appeal. Reg. v. Langmead
(10 L. T. 350) followed. Rex v. Curnock,
111 L. T. 816; 24 Cox C.C. 440— CA.
Indictment of Husband and Wife — Receipt
of Goods by Wife while Husband Absent —
Misdirection.] — Stolen goods were received by
a wife in her husband's absence. There was
evidence shewing knowledge on the part of
the husband when he returned home that the
goods were stolen, but no evidence of any
dealing by him with the goods. In the
summing-up at the trial no distinction was
drawn between the respective positions of the
husband and wife with regard to the stolen
property : — Held, that, in the absence of
evidence shew'ing a preconcerted arrangement
between husband and wife, the receipt by the
wife did not constitute her husband a receiver :
and that, as in the summing-up to the jury at
the trial no distinction was drawn between the
case of the husband and that of the wife, the
jury were insufficiently directed, and the appeal
of the husband against his conviction must be
allowed. Rex v. Pritchard, 109 L. T. 911;
23 Cox C.C. 682— CCA.
Direction to Jury.] — Upon the trial of an
indictment for receiving stolen goods well
knowing the same to have been stolen, the
onus always remains upon the prosecution.
The Judge, in directing the jury, should tell
them that, upon the prosecution establishing
that the person charged was in possession of
goods recently stolen, they might, in the
absence of any explanation by the accused of
the way in which the goods came into his
possession, which might reasonably be true,
convict the prisoner: but that, if an explana-
tion were given which the jury thought might
reasonably be true, although they were not
convinced of its truth, the prisoner was entitled
to be acquitted, inasmuch as the Crown would
have failed to discharge the duty cast upon it
of satisfying the jury beyond reasonable doubt
of the guilt of the accused. Rex v. Schama;
Rex V. Ahramovitch, 84 L. J. K.B. 396;
112 L. T. 480: 79 J. P. 184; 59 S. J. 288;
31 T. Jj. E. 88— CCA.
Wliere a prisoner is charged with receiving
stolen goods, the jury should be directed that,
to justify a verdict of " Guilty," they must
be satisfied that the goods have been in the
possession and under the control of the
prisoner. Dictum of Patteson, J., in Reg v.
Wiley f20 L. .J. M.C 4,9:4 Cox C.C 414, 421)
approved. Rex v. Berqer, 84 L. J. K.B. 541;
31 T. T.. P. 159— CCA.
Indictment — Facts Shewing Felonious
Receiving — Omission of "feloniously" in
Indictment — Common Law Misdemeanour —
Validity of Conviction.l — An indictment
charged a receiving of goods " unlawfully "
(omitting the words " and feloniously ") well
knowing them to have been feloniously stolen.
The facts shewed that the stealing was
felonious at common law : — Held, that,
although the facts shewed a felonious receiving
under section 91 of the Larceny Act, 1861, the
indictment was good as for the common law
misdemeanour of receiving goods well knowing
them to have been feloniously stolen, which
still subsisted, and that by reason of sec-
tion 12 of the Criminal Procedure Act, 1851,
the appellant was not entitled to be acquitted
on the ground that the evidence shewed that
he was guilty of the felonious receiving under
section 91. Rex v. Garland, 79 L. .7. K.B.
239; [1910] 1 K.B. 154; 102 L. T. 2.54;
74 J. P. 135 ; 22 Cox C.C. 292 ; 26 T. L. K. 130
—CCA.
F. Malicious Injuey akd Damage to
Property.
See also Vol. IV. 1427, 2150.
Two Persons Acting under Direction of
Others.] — The appellant and another were
jointly indicted for committing wilful damage
to plate-glass windows to an amount exceed-
ing 51. The appellant broke a small window
of a less value than 51., but a few yards away
the other defendant broke other windows, the
value of which, added to the value of that
broken by the appellant, exceeded 5L Both
defendants belonged to the same organisation.
The appellant in cross-examination refused to
say whether she was acting under the direction
of the organisation. She denied that she and
the other defendant were acting in concert : —
Held, that it was a question for the jury
whether on the whole evidence the defendants
were acting in concert, and that it was
unnecessary that each should know of the
existence of the other if they were both acting
under the direction of the organisation. Rex v.
■Joachim, 28 T. L. R. 380— CCA.
Damage over 5L — Salvage.] — The appellant
was convicted under section 51 of the Malicious
Damage Act, 1861, of having committed wilful
damage to plate-glass windows to an amount
exceeding 5?. On appeal it was contended that
if the undamaged portions of the glass were
taken into account the loss would be reduced
to less than 51. : — Held, that if to put the
damage right it was proper to replace the
windows at a cost of more than 51., it was
no answer to say that the owner would still
have on his hands a quantity of broken glass
which he might be able to utilise for other
purposes. Rex v. Hewitt, 76 J. P. 360;
28 T. L. R. 378— CCA.
Breaking of Windows on Successive Days —
Continuous Act — Damage over 57.] — C, on
being refused drink in O.'s public house on a
certain evening, went outside, and. after
maliciously throwing a weight through one
plate-glass window of the house, was about
to break a second window with a hatchet when
he was stopped by O.'s assistant, whereupon he
ran awav. C returned at twelve o'clock on
the following day and maliciously broke the
417
CHIMIN AL LAW.
418
second -window. The value of each window
was under, but the aggregate value of the two
windows exceeded, 51. : — Held (Holmes, L.J.,
dissenting), that the wrongful acts of C. con-
stituted one continuous transaction, for which
he could be indicted under section 51 of the
Malicious Damage Act, 1861. O'Neill v. Belfast
County Council. [1912] 2 Ir. R. 310-C.A.
Yalue of Property Damaged — EYidence —
Hearsay.] — The appellant was charged with
maliciously committing damage to a plate-
glass window in a post office to an amount
exceeding 51. At the trial a witness was called
who stated that the damage was 8L In cross-
examination the witness said he was not a
glass expert, and that he had been told by the
clerk of works who examined the window that
81. was the amount of the damage. On appeal
it was contended for the appellant that there
was nothing but hearsay evidence as to the
amount of the damage done : — Held, dismissing
the appeal, that there was evidence of a witness
who gave it as his own opinion that the
value was considerablv more than 51. Rex v.
Beckett, 29 T. L. R." 332— CCA.
n. AGAINST THE PERSONS OF
INDIVIDUALS.
A. Assault, Battery, Wounding, &c.
See also Vol. IV. 1450, 2153.
Process Server Putting Document Inside
Coat of Person Served.] — The respondent, who
was the defendant in a County Court action,
was met in the street by the appellant, who,
acting on behalf of the solicitor to the plaintiff
in the action, tendered to the respondent an
order for discovery which had been made in
the action. The respondent declined to accept
the document, whereupon the appellant thrust
it into the inner fold of the respondent's coat,
which was unbuttoned at the time, and as the
respondent opened his coat the document fell
on to the street, where he left it. On an
information preferred by the respondent
against the appellant for assault in so touching
him, the Justices were of opinion that the order
of the County Court would have been effectually
served by the appellant drawing the respon-
dent's attention to the document and by
dropping it on to the street in his presence
upon his declining to accept it. and that the
appellant was not justified in laying hands
upon him. They accordingly convicted the
appellant : — Held, that the appellant was
entitled to serve the document on the
respondent personally, and that as there was
no evidence that the appellant touched the
respondent further than was necessary to bring
the document home to him, the Justices were
wrong in convicting the appellant. Rose v.
Kempthorne, 103 L. T. 730: 75 J. P. 71;
22 Cox CC 356 ; 55 S. J. 126 : 27 T. L. R. 132
-D.
Grievous Bodily Harm — Injuries Caused in
Attempting to Escape from Accused.] — The
appellant was indicted for causing grievous
bodily harm to the prosecutrix. He went to
her house late at night when she was in bed.
and not getting in in the ordinary way broke
and entered by a winoow and went to the
door of her room, which he threatened to burst
in. He nearly burst the door open, whereupon
the prosecutrix jumped from her window and
was injured. In his direction to the jury the
Judge said : " Will you say whether the
conduct of the prisoner amounted to a threat
of causing injury to this young woman ; was
the act of jumping the natural consequence of
the conduct of the prisoner and was the
grievous bodily harm the result of the conduct
of the prisoner? If you answer these three
questions in the affirmative, your verdict will
be one of Guilty. If you answer them or any
one of them in the negative, your verdict
will be one of Not Guilty " : — Held, a proper
direction. Rex v. Beech, 107 L. T. 461;
76 J. P. 287; 23 Cox CC 181— CCA.
Shooting with Intent to Resist Lawful
Apprehension — Defence of Accident.] — The
prisoner was indicted for shooting with intent
to resist his lawful apprehension. The defence
was that the prisoner's gun went oS acciden-
tally. In his summing-up the Judge directed
the jury that a man must be taken to intend
the natural consequences of his acts, and that
it was for the prisoner and not for the prosecu-
tion, to satisfy them that the gun went off
accidentally. The prisoner was convicted : —
Held, that the conviction must be quashed, as
the Judge's direction might have been under-
stood by the jury as laying down a proposition
of law which was not correct — namely, that a
person must be taken to intend the conse-
quences, not only of his intentional, but also
of his accidental, acts. Rex \. Davies (No. 2),
29 T. L. R. 350— CCA.
B. MUEDER AND MANSLAUGHTER.
See also Vol. IV. 1487, 2158.
Murder or Manslaughter — Intending to Kill
One Person but Accidentally Killing Another.]
— If a person feloniously fires at another in
such circumstances as would make the killing
of that other person manslaughter, but by
accident he hits and kills a third person whom
he never intended to hit at all, he is guilty of
manslaughter. Rex v. Gross, 77 J. P. 352;
23 Cox CC. 455— Darling, J.
Provocation by Words — Wife's Confes-
sion of Adultery.] — Words alone, unless in
very exceptional circumstances, are not
sufficient provocation to reduce homicide from
murder to manslaughter, the only exceptional
circumstances to have that effect being cases
relating to adultery. Thus, where a man. on
suddenly discovering, by his wife's confession,
that she has been guilty of adultery, kills her,
the crime may be reduced from murder to
manslaughter. Rex v. Palmer. 82 L. J. K.B.
531 ; ri913] 2 K. B. 29 ; 108 L. T. 814 : 77 J. P.
340 : 23 Cox CC. 377 ; 29 T. L. R. 349— CCA.
The prisoner, while walking with the young
woman to whom he was engaged to be married,
told her that as he could not obtain work in
this country he intended going abroad to make
a home for her. The woman thereupon said
that if he did she would go on the town as she
1 I
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CRIMINAL LAW
420
had done before. The prisoner then asked if
she meant that, and when she said she did he
killed her : — Held, that the words used by the
woman were not sufficient provocation to re-
duce the crime from murder to manslaughter.
ib.
Unmarried Persons Living Together —
Woman Found Visiting House of 111 Fame —
Provocation/ — The prisoner who was living
witli a woman as his wife found her visiting
a house of ill fame, and thereupon fired at her
with a revolver and killed her : — Held, that
the mere fact of a man discovering a woman
with whom he i.s living as his wife visiting a
disorderly house is not such a provocation as
will reduce the crime of killing her from murder
to manslaughter, and that the prisoner was
properlv convicted of murder. Rex v. Palmer
(82 L.'J. K.B. 531; [1913] 2 K.B. 29) dis-
cussed. Rex V. Greening. 83 L. J. K.B. 19.5:
ri913] 3 K.B. 846:' 109 L. T. 720;
28 Cox C.C. GOl : 29 T. L. R. 732— CCA.
Suspicion by Prisoner of his Wife's
Adultery with Deceased/ — The prisoner, while
under the influence of drink, and under an
unfounded impression that his wife had com-
mitted adultery with his brother, accused his
brother of the adultery suspected, and receiving
an answer which he considered evasive, he
s*^abbed the brother and killed him. The
prisoner was convicted of murder : — Held, that
the circumstances under which the prisoner
committed the crime did not reduce it from
murder to manslaughter. Reg. v. Rothwell
(12 Cox C.C 145) was an extreme case, and
should not be extended. Rex v. Birchall,
109 L. T. 478; 23 Cox C.C. 579: 29 T. L. R.
711— CCA.
Provocation Necessary to Reduce to Man-
slaughter— Degree of Mental Ability Short of
Insanity.^ — Tn considering tlie amount of pro-
vocation wliich is necessary to reduce the crime
of murder to that of manslaughter, no regard
should be paid, in the absence of insanity on
the part of the accused, to the fact that bv
reason of deficient mental balance and self-
control he might be affected by a slight degree
of provocation, the test being whether the
provocation alleged would be such as to deprive
a reasonable man of his self-control. Reg. v.
Welsh (11 Cox C.C 336) and Rex v. Alexander
(109 L. T. 745) followed. Rex \. Leshini.
84 L. .T. KB. 1102; [1914] 3 K.B. 1116:
112 L. T. 175— CCA.
Provocation by Wife's Neglect of Sick
Child— Killing of Child— Direction of Judge."!
— The prisoner, a soldier home on a few days'
leave, in great distress of mind owing to the
neglect by his wife of one of his children who
was at the point of death, and having been
informed of his wife's infidelity, cut the child's
throat " because he could not see it suffer and
have to leave it." At the trial the Judge
directed the jury that if they found the
prisoner intended to kill the child the offence
was murder, and that they were not at liberty
to find a verdict of manslaughter. They found
the prisoner ffuilty of murder : — Held, that the
direction of the Judge was right, that provoca-'
tion of this indirect kind did not reduce the
crime to manslaughter, and that he had
properly refused to leave this as a question
for the jury. Rex v. Simpson, 84 L. J. K.B.
1893; 31 T. L. R. 560— CCA.
Abortion — Death of Woman — Direction
to Jury.] — Where a person feloniously uses an
instrument, or other means, with intent to
procure the miscarriage of a woman, and the
woman dies in consequence of his felonious
act — then, if, when he did the act, he must as
a responsible man have contemplated that
death or grievous bodily harm was likely to
result, he is guilty of murder; but if, when he
did the act, he had not at the time in contem-
plation, and could not as a reasonable man
have contemplated either of those consequences,
he is guiltv only of manslaughter. Rex v.
Lumley, 76 J. P. 208; 22 Cox C.C 635—
Avory, J.
Conviction for Attempted Murder — Common
Lavf Attempt — Statutory Attempt — Sentence
of Penal Servitude. ^ — The completion or
attempted completion of one of a series of acts
intended to result in killing is an attempt to
murder, even although the completed act would
not, unless followed by the other acts, result
in killing. Rex v. White, 79 L. J. K.B. 854 ;
[1910] 2 K.B. 124; 102 L. T. 784; 74 J. P.
318 ; 22 Cox C.C. 325 ; 54 S. J. 523 ; 26 T. L. R.
466— CCA.
A conviction of attempted murder, under
the provisions of section 9 of the Criminal
Procedure Act, 1851, on an indictment for
murder, is punishable as an attempt under
sections 11 to 15 inclusive of the Offences
Against the Person Act, 1861. 76.
Reg. V. Connell (6 Cox C.C 178) distin-
guished. Observations of Kennedv, J., in Rex
V. Linneker (75 L. J. K.B. 385; [1906] 2 K.B.
99) questioned. Ih.
Theories by Trial Judge as to Cause of
Death. 1 — At the trial of a prisoner for wilful
murder the question for decision by the jury
is whether or not, upon the whole of the evi-
dence before them, the death of the deceased
person was caused by the designed act of the
prisoner. Where, therefore, only circum-
stantial evidence has been adduced by the
prosecution, and the prosecution and the
defence have both advanced theories as to the
way in which the deceased person met his
death, it is not improper, although it is
inadvisable, for the Judge in his summing-up
to make further suggestions and advance
further theories of the way in which the
prisoner could have committed the offence
alleged against him, with which suggestions
and theories counsel for the defence has no
opportunity of dealing. Rex v. Smith, 84 L. J.
K.B. 21.53; 59 S. J. 704: 31 T. L. R. 617—
CCA.
Conviction for Murder — Substitution of
Verdict of Manslaughter.] — The appellant had
been convicted of murder, the defence having
been that the affair was an accident or at most
manslaughter, and the Judge at the trial
having ruled that the defence of manslaughter
was not open to the appellant : — Held, on the
421
CKIMINAL LAW.
422
facts, that the verdict of murder should be
quashed and a verdict of manslaughter sub-
stituted. Rex V. Hopper, 84 L. J. K.B. 1371 ;
[1915] 2 K.B. 431; 113 L. T. 381; 79 J. P.
335; 59 S. J. 478; 31 T. L. R. 360— CCA.
Murcjer — Question of Insanity — Sentence
of Death— Substituted Verdict.]— The Court
of Criminal Appeal, if satisfied that the appel-
lant was guilty of the offence charged, but
insane when the offence was committed, will
quash the sentence and order the appellant to
be kept in custody as a criminal lunatic. Rex
V. Jefferson (24 t. L. R. 877) followed. Rex
V. Gilbert, 84 L. J. K.B. 1424; 112 L. T. 479
—CCA.
C Rape and Indecent Assaults on Women
AND Children.
See also Vol. IV. 1547, 2164.
Attempted Rape — Conviction of Statutory
Offence.] — The power conferred by section 9
of the Criminal Law Amendment Act, 1885,
to convict of an offence under sections 3, 4, or 5
of that Act, or of an indecent assault, applies
jOnly where the accused is charged on an indict-
ment for rape or an offence made felony by
section 4, and does not apply where he is
merely charged with an attempt to commit
any of those offences. Townsend v. Lord
Advocate, [1914] S. C (J.) 85— Ct. of Just.
Indecent Assault — Consent — Defence of
Consent not Raised by Defendant in His
Evidence — Misdirection — No Direction to
Jury.] — In cases of indecent assault and cases
of the same kind where consent is a defence,
if the facts of the case are such that the jury
may reasonably infer that the prosecutrix con-
sented to the acts alleged, there ought to be
a direction to the jury by the Judge both as to
the onus which is on the prosecution to prove
non-consent, and also as to the evidence given
on the question of consent. But if the facts
are not such as that the jury may reasonably
infer consent, and particularly if the case has
been conducted by counsel so as to make the
question of consent an entirely secondary issue,
there is no necessity for such a direction. Rex
V. May, 82 L. J. K.B. 1; [1912] 3 K.B. 572;
108 L. T. 351; 77 J. P. 31; 23 Cox CC 327;
29 T. L. R. 24— CCA.
The appellant was charged with indecent
assault. In his evidence he did not say that
the prosecutrix consented, but that her story
was untnie. His counsel set up the defence of
consent before the jury, but his main defence
was that the story of the prosecutrix was
untrue. The chairman, in his summing-up,
gave no direction on the question of consent or
non-consent : — Held, that as, in the opinion of
the Court on the evidence, the jury, even if
they had received a direction on the question,
would not have found that the prosecutrix con-
sented, no such direction was necessary. 7b.
Girl Assaulted under Thirteen — Necessity of
Averment of Age in Indictment.] — The apju'l-
lant was indicted for indecently assaulting a
girl. The girl was in fact under the age of
thirteen years. The age of the girl was not
averred in the indictment : — Held, that the
indictment was not bad on the ground that
the age of the girl was not averred. Rex v.
Stephenson, 82 L. J. K.B. 287 ; [1912] 3 K.B.
341; 107 L. T. 656; 76 J. P. 408; 23 Cox CC.
214; 56 S. J. 765— CCA.
The Court pointed out that, having regard
to the provisions of section 123, sub-section 2,
and Schedule I. of the Children Act, 1908, the
prosecution would gain an advantage by aver-
ring the age of the girl in the indictment, and
that as a matter of good drafting this might
be done. lb.
Carnal Knowledge of Girl under Thirteen —
Certificate of Birth — No Evidence of Identity.'
— On a charge of having unlawful carnal know-
ledge of a girl under the age of thirteen years
the age of the girl must be strictly proved, and
if her certificate of birth is produced evidence
must be given positively identifying her with
the child whose birth is registered in such
certificate. Rex v. Rogers. Ill L. T. 1115;
79 J. P. 16; 24 Cox CC 465— CCA.
Accused under Sixteen when Offence
Committed, but over Sixteen when Convicted
— " Offender whose age does not exceed sixteen
years" — Whether Liable to Punishment of
Whipping.] — A person who at the time of
committing the offence of carnally knowing a
girl under the age of thirteen is under the age
of sixteen, but who at the time he appears in
Court to answer the indictment charging him
with the offence is over the age of sixteen, is
not a person " whose age does not exceed six-
teen years " within the meaning of the proviso
to section 4 of the Criminal Law Amendment
Act, 1885. In such a case, therefore, the Court
has no power under that proviso to order the
offender to be whipped. Rex v. Cawthron,
82 L. J. K.B. 981: [1913] 3 K.B. 168;
109 L. T. 412 ; 77 J. P. 460 ; 23 Cox CC. 548 ;
29 T. L. R. 600— CCA.
Procuration.] — See Offences against
Public Mor.als and Police, post. col. 433.
D. Suicides.
See also Vol. IV. 1564, 2167.
Attempted Suicide — Sentence — Power to
Inflict Hard Labour — "Attempt to commit
felony."] — Felo de se is a felony, and an
attempt to commit suicide is therefore an
attempt to commit felony, and under the
provisions of the Hard Labour Act, 1822,
punishable by imprisonment with hard labour.
Rex V. Mann. 83 L. J. K.B. 648; [1914]
2 K.B. 107; 110 L. T. 781; 78 J. P. 200;
24 Cox CC. 140; 58 S. J. 303; 30 T. L. R.
310— CCA.
III. CONSPIRACY.
See also Vol. IV. 1565. 2167.
Nature of Acts Necessary to Support.1— To
establish a charge of conspiracy it is sufficient
to prove that the act to be done by the
conspirators was in some wav fraudulent or
corrupt. Rex v. Whitaker, 84 L. J. K.B. 225 ;
423
CRIMINAL LAW.
424
[1914] 3 K.B. 1283 ; 112 L. T. 41 ; 79 J. P. 28;
24 Cox C.C. 472 ; 58 S. J. 707 ; 30 T. L. B. 627
—CCA.
To Defraud.] — If two persons conspire a
criminal offence is committed, although in fact
no false pretence is made and no money is
obtained. Rex v. Grosvenor, 111 L. T. 1116;
24 Cox C.C. 468— CCA.
Act Tending to Public Mischief — Agreement
to Indemnify Bail.] — An agreement between a
person against whom a criminal charge is
pending and another, that if the latter will
go bail for him he will indemnify him against
the consequences of his recognisance being
estreated in consequence of such person not
surrendering in accordance with the conditions
thereof, is an indictable offence as tending to
produce a public mischief. Reg. v. Broome
(18 L. T. (o.s.) 19) disapproved. Rex v.
Porter, 79 L. J. K.B. 241; [1910] 1 K.B.
369; 102 L. T. 255 ; 74 J. P. 159; 22 Cox C.C.
295; 26 T. L. E. 200— CCA.
lY. AGAINST KING AND
GOVERNMENT.
See also Vol. IV. 1600, 2173.
Treason — Outbreak of War — Alien Enemies
of Military Age — Assistance to Return Home
— Intent.] — The appellant, who was born in
Germany but had become naturalised in this
country and was German Consul at Sunder-
land, took steps on August 5, the day after
the outbreak of war between England and
Germany, to assist German subjects to return
to Germany, in order that they might perform
military duties when they arrived in their
own country. On the same day, in pursuance
of an Order in Council made under the Aliens
Eestriction Act, 1914, a notice was issued by
order of the Home Secretary limiting the
time of departure of alien enemies from this
country to the period between that date and
August 11. The appellant was indicted for
high treason, and there was evidence at the
trial that at some time on August 5 he knew
that war had begun. The appellant knew
nothing of the Aliens Restriction Act, 1914,
or of the Order in Council, but he stated in
evidence that he believed that there was a
rule of international law which gave a margin
of time for alien enemies to leave, even if
they were going to perform military service.
The appellant was convicted : — Held, that the
conviction must be quashed, as the jury had
not been directed that in order to convict they
must be satisfied that the appellant was
guided by an evil intention of aiding and com-
forting the King's enemies, and that his object
was not merely to carry out his duty by
assisting German subjects to return to their
own country without injurinjr this country's
interests. Rex v. Ahler.'!. 84 L. J. K.B. 901;
[19151 1 K.B. filfi: 112 L. T. 558; 79 J. P.
255 : 31 T. L. R. 141— CCA.
Obtaining Information Useful to Enemy
— Attempt."" —The appellant, who had been
convicted under section 1, sub-section 1, and
section 4 of the Official Secrets Act, 1911, of
attempting, for a purpose prejudicial to the
safety or interests of the State, to obtain
information calculated to be useful to an
enemy, appealed against his conviction on the
grounds, first, that evidence of a conversation
which he had had after the date of yie offence
had been wrongly admitted ; secondly, that the
trial was prejudiced by a suggestion as to the
contents of a document which was not put in
evidence; and thirdly, that the Judge had
unfairly questioned the prisoner and misunder-
stood his answers. The Court dismissed the
appeal on all three grounds. Rex v. Olsson,
31 T. L. R. 559— CCA.
Defence of the Realm.] — See War.
Mutiny.] — See Army and Navy.
V. AGAINST PUBLIC JUSTICE.
See also Vol. IV. 1610, 2174.
Perjury — Judicial Proceeding — Action
against Non-existent Person.] — The defendant
P. was charged with perjury for swearing in
an affidavit that he had personally served a
certain defendant in a civil action with the
writ in that action. The defendant C was
charged with aiding and abetting and suborn-
ing P. to commit perjury. The affidavit in
question was sworn in an action commenced
by C against a non-existent person. It was
contended that by reason of the fact that the
defendant in the civil action was not a real
person the affidavit had been sworn in a
matter which was not a judicial proceeding.
The defendants P. and C having been con-
victed, appealed : — Held, first, that an offence
had been committed within the terms of
section 7 of the Commissioners for Oaths Act,
1889; and secondly, that the affidavit had been
sworn in a judicial proceeding ; and there-
fore that the conviction was right. Rex v.
Castiglione, 106 L. T. 1023; 76 J. P. 351;
23 Cox C.C. 46 ; 28 T. L. R. 403— CCA.
False Death Certificate — Intention with
which Given.] — By section 4, sub-section 1 (b)
of the Perjury Act, 1911, if any person
" wilfully makes any false certificate or
declaration under or for the purposes of any
Act relating to the registration of births or
deaths, or, knowing any such certificate or
declaration to be false, uses the same as true
or gives or sends the same as true to any
person," he commits a misdemeanour : — Held,
that it is an offence under the above provision
for a person to give a certificate which pur-
ports to be a certificate under an Act relating
to the registration of births and deaths and
which can be used under such an Act, and
it is not necessary for the prosecution to prove
that the defendant gave the certificate with
the intention that it should be used under
such an Act. Rex v. Ryan (No. 1), 110 L. T.
779: 78 J. P. 192: 24 Cox C.C 135; 58 S. J.
251: 30 T. L. R. 242— CCA.
Competency of Justices to Administer
Oath.l — The defendant was indicted for the
common law misdemeanour of taking a false
425
CRIMINAL LAW.
426
oath in connection with the proposed transfer
of a licence, before Justices, on April 12, 1910,
on which date there was an informal meeting
of the Justices for the purpose of expediting
licensing business when the special sessions,
which had been fixed for May 18, 1910, came
on. The defendant was convicted : — Held,
that the conviction must be quashed, inasmuch
as at the meeting on April 12 the Justices had
no authority to administer an oath. Rex v.
Shaw, 104 L. T. 112 ; 75 J. P. 191 ; 22 Cox C.C.
376; 27 T. L. E. 181— CCA.
Subornation — Question as to Corrobora-
tion Necessary.] — On a charge of subornation
of perjury the corroboration necessary to
sustain a conviction may be afforded by the
facts and circumstances of the case. Under
section 13 of the Perjury Act. 1911, one witness
is sufficient to prove that the accused made
certain statements on oath, but additional
evidence is required to establish the falsitv of
the oath. Rex v. Threlfall. Ill L. T. 168;
24 Cox C.C 230— CCA.
VI. AGAINST PUBLIC PEACE.
A. Libel.
See also Vol. IV. 16-55, 2174.
Sentence — Imprisonment and Direction to
Find Surety and in Default Further Term of
Imprisonment.] — A person convicted under
section 5 of the Libel Act, 1843, may, in
addition to being sentenced to the maximum
term of imprisonment mentioned in the section
— namely, one year — be ordered, at the expira-
tion of that imprisonment, to find sureties to
keep the peace for a specified period, and, in
default of so doing, be further imprisoned for
the period during which he is so ordered to
find sureties. Rex v. Trueman, 82 L. J. K.B.
916; [1913] 3 K.B. 164; 109 L. T. 413;
77 J. P. 428; 23 Cox C.C. 550; 29 T. L. E.
599— CCA.
Plea of Justification — Replication Filed
during Trial — Effect upon Verdict. 1 — The
prisoner, who was charged with publishing a
defamatory libel, pleaded (inter alia) justifi-
cation. A replication to the plea was filed
during the course of the trial : — Held, that
the prisoner was not entitled to be acquitted
on the ground that the plea of justification
had not been traversed, and must therefore
be taken to be a good plea. Rex v. Seham
Yousnj, 84 L. J. K.B. 1272 ; 112 L. T. 311 ;
31 T. L. E. 27— CCA.
B. EiDiNG OR Going Armed.
Indictment.] — An indictment for riding or
going armed against the form of the Statute
of Northampton (3 Edw. 3. c. 3), which omits
to negative lawful occasion, is bad, as omitting
an essential ingredient of the offence, and will
not be cured bv verdict. Rex v. Smith, [1914]
2 Ir. E. 190— CCE.
Counts in an indictment (diarging that the
acc'ised went about on a public road without
lawful occasion, in such a manner as to be a
nuisance to, and to alarm the public lawfully
using the road, and charging that the accused
on the public road unlawfully discharged a
revolver to the great danger of the public,
even assuming that the omission of the words
" lawfully using the highway " does not make
the latter count bad, cannot be sustained
where it appears that none of the public
were present or capable of being alarmed or
endangered. 76.
Where the omission of the averment that
the acts were done in ierrorem populi would
be aided or cured by verdict, qucere. lb.
VII. AGAINST PUBLIC MOEALS AND
POLICE.
A. Bigamy.
See also Vol. IV. 1681, 2176.
Evidence — Identification.] — On the trial of
the appellant for bigamy the evidence by the
prosecution to prove the first marriage con-
sisted of the marriage certificate, the fact that
he cohabited as her husband with the woman
he was alleged to have married, and the fact
that he spoke of her as his wife : — Held, that
there was sufficient identification of the appel-
lant with the man who was married to the
woman named in the certificate. Rex v.
Birtles, 75 J. P. 288; 27 T. L. E. 402— CCA.
B. Bribery.
Public Officer.] — A person who discharges
any duty in which the public are interested,
and who receives payment from public moneys,
is a " public officer." The colonel of a regi-
ment in the army is both a public and a
ministerial officer. Rex v. Whitaker, 84 L. J.
K.B. 225; [1914] 3 K.B. 1283; 112 L. T. 41;
79 J. P. 28; 24 Cox C.C. 472; 58 S. J. 707;
.30 T. L. E. 627— CCA.
Bribe to Induce Defendant to Shew Favour
I in Regard to Catering Contracts.] — It is a
j common law misdemeanour for the colonel of
I a regiment in the army to conspire with other
! persons for the payment to him of bribes to
induce him to shew favour to such persons in
' respect of catering contract for his regiment.
lb.
I C Habitual Criminals.
; See also Vol. IV. 2177.
I Indictment — No Averment that Prisoner is
I Habitual Criminal.] — It is not necessary that
an indictment under which a prisoner is
charged with being a habitual criminal should
contain an averment that he is a habitual
criminal, but as a matter of pleading it is
better that it should do so. Rex v. Smith;
Rex V. Weston, 79 L. J. K.B. 1; [1910]
1 K.B. 17; 101 L. T. 816; 74 J. P. 13;
22 Cox C.C 219; 54 S. J. 137; 26 T. L. R.
23-C.CA.
Proof of Consent of Director of Public
Prosecutions.] — On the trial of a person
cliarged with being a habitual criminal, the
consent of the Director of Public Prosecutions
42^
CEIMIXAL LAW.
428
to the insertion in the indictment of such a
charge must be proved. It is not, however,
necessary that some one should be called to
prove the handwriting of the Director ; it is
sufficient if a witness is called who can depose
to having been in correspondence with the
Director on the subject and having received
in the ordinary course the document purporting
to be his consent. Rex \. Turner, 79 L. J.
K.B. 176: [1910] 1 K.B. 346; 102 L. T. 367;
74 J. P. 81: 22 Cox C.C. 310; 54 S. J. 164;
26 T. L. E. 162— CCA.
Where a charge under the Prevention of
Crime Act, 1908, of being a habitual criminal
is inserted in the indictment against an
accused person the prosecution need not prove
as part of their case that the consent of the
Director of Public Prosecutions has been
given to the insertion of such charge, unless
the fact is challenged by the accused, in
which case the fact may be proved as deter-
mined bv the Court in Rex v. Turner
(79 L. J."^ K.B. 176). The clerk of assize or
the clerk of the peace — or, if any question
arises, the Judge — should satisfy himself that
such consent has been given before the indict-
ment goes before the grand jury. Rex v.
Waller, 79 L. J. K.B. 184: [1910] 1 K.B.
864: 102 L. T. 400: 74 J. P. 81: 22 Cox C.C
319; 54 S. J. 164: 26 T. L. R. 142— CCA.
Proof of Receipt of Notice — "Not less than
seYen days' notice" — Clear Days.] — It is not
necessary that the proper officer of the Court
— for example, the clerk of the peace — should
himself be called to testify to the receipt of
the notice mentioned in section 10. sub-sec-
tion 4 (b) of the Prevention of Crime Act,
1908, but there must be proof of the receipt
of such notice, and that may be given by the
officer or clerk of the clerk of the Court, or by
the person who gave the notice. Such notice,
and also the notice served on the accused,
must be a seven clear davs' notice. Rex v.
Turner. 79 L. J. K.B. 176; [1910] 1 K.B.
346 ; 102 L. T. 367 ; 74 J. P. 81 : 22 Cox C.C
310; 54 S. J. 164: 26 T. L. R. 162— CCA.
Contents of Notice — Grounds — Evidence.] —
The notice served on the accused, although
it need not state the evidence upon which the
prosecution intend to rely as establishing that
he is a habitual criminal, must state the
grounds upon which it is intended to found
the charge: it is not enough to state in the
notice that the accused is leading persistently
a dishonest or criminal life. Evidence of the
three previous convictions of the accused
relied iipon by the prosecution is inadmissible
unless it is proved that those convictions
were specified in the notice served upon the
accused. If such notice is not produced by
the accused secondary evidence may be given
of its contents. lb.
The notice served upon an accused
person under section 10. sub-section 4 of the
Prevention of Crime Act, 1908, need not. in
addition to specifying the previous convictions
of the accused, also state other grounds for
founding the charge that he is leading per-
sistently a dishonest or criminal life, unless
the prosecution intend to rely upon other
grounds than the previous convictions. Rex
V. Turner (79 L. J. K.B. 176) explained.
Rex V. Waller, 79 L. J. K.B. 184; [1910]
1 K.B. 364; 102 L. T. 400; 74 J. P. 81;
22 Cox C.C 319; 54 S. J. 164; 26 T. L. R.
142.
Grounds upon which Charge is Founded —
Sufficiency of Notice.] — A notice given to a
prisoner in pursuance of section 10, sub-
section 4 of the Prevention of Crime Act,
1908, stated that it was intended to insert
in the bill of indictment to be preferred
against him a charge under that Act, " that
you are a habitual criminal and are leading
persistently a dishonest and criminal life."
One of the grounds upon which the charge
was founded was " that when you were asked
to give some account of yourself, in order
that you might have an opportunity of shewing
that you had since the date of your last
release from prison been following some
honest employment, you declined to give any
information which could be verified on the
subject " : — Held, that, although the ground
was not one on which a person could be con-
victed of being a habitual criminal, its
insertion in the notice did not make the notice
bad, inasmuch as it was merely notice of the
evidence that would be used against the
prisoner on his trial, and there was no obli-
gation on the prosecution under the statute
to state the evidence that would be produced.
Rex V. Webber, 82 L. J. K.B. 108; [1913]
1 K.B. 33; 108 L. T. 349; 76 J. P. 471;
23 Cox C.C. 823— CCA.
Specific Notice.] — By section 10, sub-sec-
tion 4 of the Prevention of Crime Act, 1908,
a charge of being a habitual criminal shall
not be inserted in an indictment unless seven
days' notice has been given to the offender,
" and the notice to the ofifender shall specify
the previous convictions and the other grounds
upon which it is intended to found the
charge." On an indictment for being a
habitual criminal, evidence was given that
the prisoner since his last release had asso-
ciated with a well-known thief. No specific
notice of this ground for the charge had been
given to the prisoner : — Held, that in the
absence of specific notice the conviction must
be quashed. Rex v. Neihon. 109 L. T. 912;
78 J. P. 158; 23 Cox C.C 685; 30 T. L. R.
125— CCA.
Proof of Prisoner's Age.] — There must be
evidence before the Court that the accused
had attained the age of sixteen at the date
of the first conviction alleged against him.
If the jury cannot act upon their view as to
the accused's age, the fact may be proved by
a prison official deposing that the age of the
accused as stated in the calendar was so stated
from information given by the accused him-
self. Rex V. Turner, 79 L. J. K.B. 176;
[1910] 1 K.B. 346; 102 L. T. 367; 74 .7. P.
81 : 22 Cox C.C. 310 : 54 S. J. 164 : 26 T. L. R.
162— CCA.
Trial — Sentence.] — It is not necessary that
sentence on the main charge in an indict-
ment should have been pronounced before the
429
CKIMIXAL LAW
430
accused is placed upon his trial as a habitual
criminal. lb.
Trial — Swearing Jury."! — Where an indict-
ment charges a person with having committed
an offence, and also, under section 10 of the
Prevention of Crime Act, 1908, with being a
habitual criminal, and the accused pleads
guilty to the main charge, but pleads not
guilty to the charge of being a habitual
criminal, it is sufficient that the jury should
be sworn to try the latter question as if on
a trial for a misdemeanour, although the
main charge to which the prisoner has
pleaded guilty is a felony. It is no objection,
however, to the trial that the jury has been
sworn as on a trial for felony. Rex v.
Turner, 79 L. J. K.B. 176; [1910] 1 K.B.
346; 102 L. T. 367; 74 J. P. 81; 22 Cox C.C.
310; 54 S. J. 164; 26 T. L. K. 162— CCA.
Evidence — Leading Dislionest or Criminal
Life.] — In order to establish that the prisoner
is leading persistently a dishonest or criminal
life, the evidence is not necessarily to be
confined to the period since the accused's last
conviction. It must depend upon the circum-
stances of each case whether evidence as to
the period prior to such conviction is admis-
sible or not ; but in all cases the evidence
must be brought down to the date when the
accused is charged. Rex v. Turner, 79 L. J.
K.B. 176; [1910] 1 K.B. 346; 102 L. T. 367;
74 J. P. 81; 22 Cox C.C. 310; 54 S. J. 164;
26 T. L. K. 162— CCA.
Observations on the evidence required to
prove that an accused " is leading persistently
a dishonest or criminal life." Stirling v.
Lord Advocate, [1911] S. C (J.) 84— Ct. of
Just. See also Heron v. Lord Advocate,
[1914] S. C. (J.) 7— Ct. of Just.
Sentence of preventive detention quashed
on the ground that evidence that the prisoner
had been leading persistently a dishonest life
was given by shewing that since his last
conviction he had associated with a man who
had been convicted of coining offences, with-
out notice of intention to give such evidence
having been served on the prisoner. Rer v.
Maxfield, 28 T. L. R. 404— CCA.
Two prisoners were jointly indicted for
housebreaking and pleaded guilty ; they were
then separately tried on charges of being
habitual criminals : — Held, that though in
some cases so long an interval as six months
between a prisoner's last release from prison
and the commission of the offence with which
he is charged, coupled with the fact of his
doing some honest work in that interval, may
be sufficient to negative his persistently lead-
ing a dishonest or criminal life, yet the
nature of the particular offence with which
he is charged must be taken into considera-
tion. If it is one which does not involve any
premeditation, but is such as may be the
result of sudden temptation, it is not neces-
sarily inconsistent with a desire to amend his
mode of life. But where it is obvious that
he intends to return to his criminal courses,
the existence of a six months' interval
between the release from prison and the
commission of the crime cannot affect the
question. Rex v. Keane ; Rex v. Watson,
[1912] W. N. 205— CCA.
No hard-and-fast rule can be laid down
as to what length the interval of time must
be between the last release of an accused
from prison and his next subsequent arrest
in order to require evidence that he has been
leading persistently a dishonest or criminal
life within the meaning of section 10 of the
Prevention of Crime Act, 1908. Where the
interval is considerable it is desirable, and
probably necessary, that the attention of the
jury should not only be drawn to it, but
some evidence should be given that the
accused was relapsing into crime because it
was his natural disposition to do so. Con-
viction of the appellant for being a habitual
criminal affirmed, although the interval be-
tween his last release and subsequent arrest
was nine months. Rex v. Heard, 106 L. T.
304; 76 J. P. 232; 22 Cox C.C. 725;
28 T. L. E. 154— CCA.
Foreign Conviction — Admissibility.] — A
conviction in a foreign country for an offence
which is a crime in all civilised countries is
admissible on the question as to whether an
accused has been leading persistently a dis-
honest or criminal life. lb.
Failure by Convict on Licence to Report
Himself to Police.] — The mere fact that a
convict on licence has not reported himself to
the police is not sufficient to establish that he
is leading persistently a dishonest or criminal
life. Conviction of the appellant for being a
habitual criminal quashed where the sole
evidence against him on the question of lead-
ing persistently a dishonest or criminal life
consisted in the fact that during the period
intervening between his last release from
prison on licence and the commission of a new
offence — a period of five and a half months —
he had failed to report himself to the police.
Rex V. Mitchell. 108 L. T. 224; 76 J. P. 423;
23 Cox C.C 284; 28 T. L. R. 484— CCA.
Onus of Proof.] — The onus of "proving
that the prisoner " is leading persistently a
dishonest or criminal life " rests upon the
prosecution, and the jury ought to be directed
that it is for the Crown to establish that the
prisoner is still leading a dishonest or criminal
life. Rex v. Youyig, 109 L. T. 753; 78 J. P.
80 ; 23 Cox C.C. 624 ; 58 S. J. 100 ; 30 T. L. E.
69— CCA.
Evidence Given of Facts not Stated in
Notice to Accused.^ — Conviction of the accused
as a habitual criminal quashed on the ground
that evidence was given at the trial that the
accused had lived by thieving and had done no
honest work for ten years, whereas the no^^ice
served upon him under section 10 of the Pre-
vention of Crime Act, 1908. merely specified
the three statutory and certain other convic-
tions, and did not mention any other groimd
upon which it was intended to base the charge
of being a habitual criminal. Rex V. Moran,
75 J. P. 110— CCA.
Conviction of the appellant as a habitual
criminal quashed where evidence was given
against him of facts not included in the notice
431
CEIMINAL LAW.
432
served upon him. It is not the case that
evidence as to the mode of life of a prisoner,
on the question whether he is leading per-
sistently a dishonest and criminal life, must
be confined to the period between his last
release from prison and the commission of
the new offence. Rex v. Wilson, 28 T. L. E.
561— CCA.
Conviction of the appellant as a habitual
criminal quashed where evidence was given
against him of certain offences alleged to have
been committed by him, which were not in-
cluded in the notice served upon him. Rex
V. Fowler, 77 J. P. 379; 29 T. L. K. 422—
CCA.
Conviction of the appellant as a habitual
criminal affirmed where, although evidence
was given against him of matters not included
in the notice served upon him under the Pre-
vention of Crime Act, 1908, no substantial
miscarriage of justice had occurred. Rex v.
Westwood, 77 J. P. 379; 29 T. L. R. 492—
CCA.
Fugitive from Justice — Employment while
in Hiding.] — Where a criminal succeeded in
evading arrest for some considerable period,
and meanwhile obtained honest employment,
the jury were told that they could convict the
prisoner of being a habitual criminal because
he was a fugitive from justice : — Held, that
this amounted to a misdirection. Rex v.
Briwn, 109 L. T. 749; 78 J. P. 79; 23 Cox
CC. 615; 58 S. J. 69; 30 T. L. E. 40— CCA.
Only Three Statutory Convictions Proved.] —
It is no objection in law to the conviction of
a person for being a habitual criminal that
only the three statutory convictions stated
in the notice served on the accused under
section 10 of the Prevention of Crime Act,
1908, are alleged against him. A great deal
depends upon the nature of the offences for
which the accused has been convicted. If the
three convictions alleged were not in respect
of offences shewing deliberation or system,
it may not be right to take them as being of
themselves sufficient to establish the charge
of being a habitual criminal ; if, on the other
hand, the three convictions are in respect of
offences requiring system, planning, and
deliberation, and if they have been repeated
almost at the first opportunity after the
accused's release from a previous sentence,
they may well be sufficient for the jury arriv-
ing at the conclusion that the accused intended
to live by crime. Rex v. Everitt, 27 T. L. E.
570— CCA.
Mention in Summing-up of Convictions
which had not been Proved. 1 — Conviction as
a habitual criminal quashed on the ground
that in his summing-up the Judge mentioned
other convictions than those proved against
the appellant. Rex v. Culliford, 75 J. P. 232
—CCA.
Preventive Detention — " Not exceeding ten
nor less than five years" — Discretion of
Judge.] — SocHon lU, sub-section 1 of the Pre-
vention of Crime Act, 1908, provides that " the
Court, if of opinion that by reason of his
criminal habits and mode of life it is expedient
for the protection of the public that the
offender should be kept in detention for a
lengthened period of years, may pass a further
sentence ordering that on the determination
of the sentence of penal servitude he be de-
tained for such period not exceeding ten nor
less than five years, as the Court may deter-
mine " : — Held, that the period of preventive
detention, within the statutory limits, is a
matter for the discretion of the Judge in
passing sentence, having regard to the evidence
adduced before him in the case. Rex v.
Hamilton (9 Cr. App. Eep. 89) considered.
Rex V. Crowley, or Sullivan, 83 L. J. K.B.
298; no L. T. 127; 24 Cox CC 13;
30 T. L. R. 94— CCA.
Sentence of Preventive Detention — Increase
of Sentence to Enable Court to Pass.] — By
section 10, sub-section 1 of the Prevention of
Crime Act, 1908, where a person is convicted
on indictment and is found by the jury to be
a habitual criminal and the Court passes a
sentence of penal servitude, the Court may
pass a further sentence of preventive deten-
tion : — Held, that the Court ought not, in
order to obtain power to pass a further sen-
tence of preventive detention, to pass a sen-
tence of penal servitude, if they consider that
a sentence of imprisonment only, quite apart
from any question of preventive detention, is
adequate to the offence of which the prisoner
has been convicted. Rex v. Bell, 30 T. L. E.
645— CCA.
D. Incest.
Offence by Woman — What must be Proved.]
— Per Hamilton, J. : To constitute the offence
of incest on the part of a woman under sec-
tion 2 of the Incest Act, 1908, there must be
something in the nature of permission by her,
and not merely submission to the act of the
man. Rex v. Dimes, 76 J. P. 47— CCA.
Evidence of the Existence of a Guilty Passion
and of Previous Acts.] — On an indictment for
incest under the Punishment of Incest Act,
1908, evidence is admissible to prove the
existence of a guilty passion between the
accused persons and of carnal intercourse
before the Act was passed. Director of Public
Prosecutions v. Ball (No. 2), 80 L. J. K.B.
691; [1911] A.C 47; 103 L. T. 738; 75 J. P.
180 ; 22 Cox CC 366 ; 55 S. J. 139 ; 27 T. L. E.
162— H.L. (E.)
E. Keeping Brothel.
One Woman Using Premises for Purposes
of Prostitution.] — The respondent was charged
under section 13, sub-section 1 of the Criminal
Law Amendment Act, 1885, with managing a
brothel. The respondent was the wife of the
occupier of the premises and she allowed her
sister, a prostitute, to use the premises on
various dates for the purpose of prostitution
with different men. No other woman used the
premises for the purpose of prostitution. The
stipendiary magistrate dismissed the charge,
being of opinion that premises could not be
held in law to be a brothel unless at least two
433
CKIMINAL LAW.
434
women used the premises for the purpose of
prostitution : — Held (Ridley, J., dissenting),
that the magistrate was right in so holding.
Singleton v. Ellison (64 L. J. M.C. 123 ; [1895]
1 Q.B. 607) followed. Caldwell v. Leech,
109 L. T. 188; 77 J. P. 254; 23 Cox C.C. 610;
29 T. L. R. 457— D.
F. Offences under Prevention of Crimes,
Act, 1871.
Being Found in Public Place about to
Commit Felony.] — Per Lord Coleridge, J. :
The provisions of section 7 of the Prevention
of Crimes Act, 1871, being very stringent,
must not be invoked on mere suspicion. There
must be positive testimony to enable the police
to bring a prosecution. Rex v. Pavitt, 75 J. P.
432— CCA.
G. Offences under Vagrancy Act.
See Vagrant.
H. Procuration.
Girl Brouglit from Scotland — Continuing
Offence— Trial in England.]— The offence of
procuration under section 2 of the Criminal
Law Amendment Act, 1885, is a continuing
offence, and if any part of it takes place within
the jurisdiction of the English Courts, those
Courts have jurisdiction to trv it. Rex v.
Mackenzie, 75 J. P. 159; 27 T. L. R. 1-52—
CCA.
" Girl or woman under twenty-one years of
age" — Indictment.] — By section 2, sub-sec-
tion 1 of the Criminal Law Amendment Act,
1885, " Any person who procures or attempts
to procure any girl or woman under twenty-one
years of age, not being a common prostitute or
of known immoral character, to have unlawful
carnal connexion either within or without the
Queen's Dominions with any other person or
persons " shall be guilty of a misdemeanour.
An indictment under this sub-section charged
the defendant with the procuration of a
" girl " without stating her age or stating that
she was " under twenty-one years of age " : —
Held, that the indictment was good, and that
the words in the sub-section, " under twenty-
one years of age," qualify the word " woman "
only and not the word " girl." Rex v. Jones,
106 L. T. 1024; 76 J. P. 8 ; 23 Cox C.C. 48;
55 S. J. 754— CCA.
Attempt to Procure — Insufficient Direction
as to what would Constitute Attempt.] — Con-
viction of the appellant for attempting to
procure his wife to leave her usual place of
abode with intent that she should become an
inmate of a brothel outside the King's
Dominions quashed on the ground that the jury
were not properly directed as to the difference
between an attempt and an intention or a
mere idle threat. Rex v. Landow, 109 L. T.
48 ; 77 J. P. 364 ; 23 Cox C.C. 457 ; 29 T. L. R.
375— CCA.
Girl under Age of Sixteen — "Causing or
encouraging seduction " — " Allowing girl to
consort with persons of known immoral
character" — Evidence — Verdict of Negligence.]
— The appellant was charged under section 17,
sub-sections 1 and 2 of the Children Act, 1908,
as amended by section 1 of the Children Act
(1908) Amendment Act, 1910, with causing and
encouraging the seduction of his daughter by
knowingly allowing her to consort with persons
of known immoral character. His wife was
also charged with the offence. The jury found
that the appellant was guilty of negligence and
that his wife was guilty of criminal negligence.
The wife did not appeal from her conviction : —
Held, on the facts, that there was not sufficient
evidence on which the jury ought to have been
asked to say whether the appellant was guilty
of the offence with which he was charged ; and
further that the jury, by their verdict, never
intended to find him guilty of such offence.
Rex V. Chainey, 83 L. J. K.B. 306; [1914]
1 K.B. 137; 109 L. T. 752; 78 J. P. 127;
23 Cox C.C. 620; 30 T. L. R. 51— CCA.
Procuring Woman to Become a Common
Prostitute — Punishment of Whipping — Ap-
plicability of Statute Authorising Whipping —
Not Applicable to " proceedings pending at the
commencement of this Act" — Arrest Previous
to Commencement.] — By section 8 of the
Criminal Law Amendment Act, 1912, the Act
is not to apply to " proceedings pending at the
commencement of this Act." The appellant
was arrested on December 7, 1912, and the
Act came into force on December 13 following :
— Held, that the proceedings against the
appellant were " proceedings pending " at such
commencement, and that the Act did not
apply, so that on the trial and conviction of
the appellant on indictment after the com-
mencement of the Act the Court had no power
to pass the sentence of whipping authorised
by section 3. Rex v. O'Comior, 82 L. J. K.B.
335: [1913] 1 K.B. 557; 108 L. T. 384;
77 J. P. 272; 23 Cox C.C 334; 57 S. J. 287;
29 T. L. R. 245— CCA.
D. PROCEDURE AND PRACTICE.
I. JURISDICTION.
See also Vol. IV. 1717, 2185.
Procuration — Girl Brought from Scotland —
Continuing Offence — Trial in England.]— The
offence of procuration under section 2 of the
Criminal Law Amendment Act, 1885, is a con-
tinuing offence, and if any part of it takes
place within the jurisdiction of the English
Courts, those Courts have jurisdiction to try it.
Rex V. Mackenzie, 75 J. P. 159; 27 T. L. R.
152— CCA.
Vexatious Actions — Prohibition of Institu-
tion of Legal Proceedings — Criminal Proceed-
ings.]— The Vexatious Actions Act, 1896,
which empowers the Court to make an order
prohibiting a person from instituting '" legal
proceedings " without the leave of the Court or
a Judge, is confined to civil proceedings, and
has no application to tlie institution of criminal
proceedings : — So held by Kennedy. L.J.. and
Rcrutton. J. (Buckley. L.J., dissenting).
Boaler, In re, 83 L. J. K.B. 1629; [1915]
435
CEIMINAL LAW.
436
1 K.B. 21: 111 L. T. 497: 24 Cox C.C. 335;
58 S. J. 634: 30 T. L. R. 580— C. A.
Decision of Divisional Court (83 L. J. K.B.
139: [1914] 1 K.B. 122i affirmed. 7b.
Absence of Consent of Attorney-General to
Proceedings. — The appellant was convicted
under section 2 of the Explosive Substances
Act, 1883, for causing an explosion of a
nature likely to endanger life or to cause
serious injury to propertv. The consent of
the Attorney-General, which is required by
section 7 to proceedings under the Act, had
not been obtained: — Held, first, that the con-
viction must be quashed, as the absence of
Buch consent invalidated the proceedings : and
secondly, that the proviso to section 4, sub-
section 1 of the Criminal Appeal Act, 1907, has
no application where the Court by which a
prisoner is tried has no jurisdiction to entertain
the proceedings. Rex v. Bates. 80 L. J. K.B.
507; [1911] 1 K.B. 964; 104 L. T. 688;
75 J. P. 271: 22 Cox C.C. 459; 55 S. J. 410:
27 T. L. R. 314— CCA.
Removal of Indictment into High Court —
Charge against Limited Company,] — The
Court, without deciding that a limited com-
pany could not plead to an indictment at the
Central Criminal Court, made absolute a rule
for the removal from that Court to the High
Court of the indictment against the company.
Bex V. Puck .1- Co. (A'o. 1). 28 T. L. R. 197
— D.
Jurisdiction of Quarter Sessions — Indictment
for Living on Earnings of Prostitution. —
An indictment under sub-section 5 of section 7
of the Criminal Law Amendment Act, 1912,
for the offence of knowingly living on the
earnings of prostitution, can be tried by a
Court of quarter sessions. Rex v. Hill: Rex
V. Churchman, 83 L. J. K.B. 820; [1914]
2 K.B. 386: 110 L. T. 831: 78 J. P. 303;
24 Cox C.C. 150— CCA.
Validity of Indictment.] — In an indict-
ment for this offence a person can properly be
charged with having committed the offence on
one specified day only. lb.
II. INDICTMENT.
See also Vol. IV. 17.31. 2186.
"Riding or going armed" — Indictment.] —
An indictment for riding or going armed
against the form of the Statute of Northampton
(3 Edw. 3. c. 3), which omits to negative lawful
occasion, is bad, as omitting an essential
ingredient of the offence, and will not be
cured by verdict. Rex v. Smith, [1914]
2 Jr. R. 190— CCR.
Counts in an indictment charging that the
accused went about on a public road, without
lawful occasion, in such a manner as to be a
nuisance to and to alarm the public lawfully
using the road, and charging that the accused
on the public road unlawfully discharged a
revolver to the great danger of the public, even
assuming that the omission of the words " law-
fully using the highway " does not make the
latter count bad, cannot be sustained where it
appears that none of the public were present
or capable of being alarmed or endangered. lb.
Whether the omission of the averment that
the acts were done in terrorem populi would be
aided or cured by verdict, quare. lb.
Several Counts — Obtaining Chattels —
Obtaining Credit.] — Where a prisoner is
charged on an indictment containing several
counts, some charging him with obtaining
chattels, and some charging him with obtaining
credit, on false pretences, the prosecution
should be called on to proceed on one count
at a time, and the prisoner should not be tried
upon all the counts at the same time. Rex v.
Korman. 84 L. J. K.B. 440; [1915] 1 K.B.
341 : 112 L. T. 784 : 79 J. P. 221 : 31 T. L. R.
17.3— CCA.
Joinder of Offences in One Count — Time for
Taking Objection — No Miscarriage of Justice.]
— The appellant was indicted in two counts for
incest. Each count charged the offence as
having been committed "' on divers days "
between certain dates. Objection to the
indictment on the ground of duplicity was
taken after the appellant had pleaded : — Held,
that the indictment was bad : but that in the
circumstances no miscarriage of justice had
taken place, and that under the proviso in
section 4, sub-section 1 of the Criminal Appeal
Act, 1907, the appeal should be dismissed.
Rex V. Thompson. 83 L. J. K.B. 643; [1914]
2 K.B. 99: 110 L. T. 272: 78 J. P. 212;
24 Cox C.C. 43; 30 T. L. R. 223— CCA.
Qucere as to whether the objection should
have been taken before plea. 76.
Joinder of Counts for Separate Felonies —
Quashing Indictment — Putting Prosecution to
Election — Discretion of Judge. ^ — There is no
rule of law that various distinct felonies cannot
be charged in separate counts in one indict-
ment. But if the Judge thinks that the
prisoner will be embarrassed by being put upon
his trial on an indictment in which there are
several counts for distinct felonies, he may
either quash the indictment, if he thinks fit,
if the application is made before plea, or he
may make the prosecution elect upon which
of the counts they will proceed. It is, however,
solely in the discretion of the Court whether
or not either one or other of those courses
should be pursued. In determining whether or
not he should exercise his discretion, the Judge
ought to consider whether the overt acts relied
upon in support of the offences charged in the
various counts of the indictment are in sub-
stance the same for each offence. Rex v.
Lockett. Grizzard. Gutxcirth. and SUverm.an,
83 L. J. K.B. 1193; [1914] 2 K.B. 720;
110 L. T. 398: 78 J. P. 196; 24 Cox C.C. 114;
30 T. L. R. 233— CCA.
Two Counts — Libel — Discretion of Judge.]
— Where an indictment contains two counts,
one charging libel and the other charging
publication of the libel for the purpose of
extorting money, it is for the Judge at the
trial in his discretion to decide whether the
prosecution must proceed on one count of the
indictment. Rex v. Seham Yousry, 84 L. J.
437
CRIMINAL LAW.
438
K.B. 1272; 112 L. T. 311; 31 T. L. R. 27—
CCA.
III. TRIAL.
See also Vol. IV. 1763, 2188.
1. Arraignment.
Prisoner Standing Mute — Incapacity to
Understand Proceedings — Insanity — Order for
Prisoner's Detention — Jurisdiction.] — A
prisoner who was totally deaf and unable to
read or write, on being arraigned upon a charge
of felony, stood mute, and a jury impanelled
in that behalf found that he was mute by the
visitation of God, and, further, that he was
incapable of pleading to and taking his trial
upon the indictment, and of understanding and
following the proceedings, by reason of his
inability to communicate with and be com-
municated with by others. The Judge there-
upon made an order under section 2 of the
Criminal Lunatics Act, 1800, that the prisoner
should be treated as non-sane and kept in
custody during his Majesty's pleasure : — Held,
that the finding of the jury, although not an
express finding that the prisoner w'as insane,
amounted in substance to such a finding, and
was sufficient to entitle the Judge to make the
order. Rex v. Stafford Prison (Governor),
78 L. J. K.B. 629 ; [1909] 2 K.B. 81 ; 100 L. T.
993 ; 73 J. P. 284 ; 22 Cox CC. 143 ; 25 T. L. E.
440— D.
2. Pleas.
Plea of " Guilty " Wrongly Entered — New
Trial — Discretion of the Court,] — A prisoner
is not to be taken to admit an offence with
which he is charged unless he pleads guilty
to the charge in unmistakable and unam-
biguous terms. Rex v. Golathan, 84 L. J.
K.B. 758: 112 L. T. 1048; 79 J. P. 270;
31 T. L. R. 177— CCA.
Where the Court holds that the proceedings
which have culminated in the conviction
appealed against are abortive and void the
Court may at its discretion direct that the
appellant shall be tried for the offence with
which he was charged, and may order that
he shall be kept in custodv until such trial.
lb.
Plea of " Guilty " to Feloniously Receiving
— Written Statement Disclaiming Felonious
Intention — Entry of Plea of " Guilty " — Duty
of Court to Enter Plea of " Not guilty."] —
Where a prisoner formally pleads guilty to a
felony, but accompanies the plea by a state-
ment disclaiming any felonious intention, it
is the duty of the Court to enter a plea of
"Not guilty." The appellant pleaded guilty
to a charge of receiving certain horses knowing
them to have been felonioush' stolen, and
handed to the Court a written statement which
concluded with these words : " I am guilty of
taking the horses not knowing them to have
been stolen." A plea of " Guilty " was there-
upon entered on the record, and sentence was
passed ; — Held, that the appellant had not
pleaded guilty, and that no legal sentence had
been passed; that the case must go back, and
the appellant be called upon to plead afresh
to the indictment. Rex v. Ingleson, 84 L. J.
K.B. 280; [1915] 1 K.B. 512; 112 L. T. 313—
CCA.
Coinage Offence — Possession of Mould with-
out Lawful Excuse — Plea by Prisoner that he
had Possession of Mould — E£fect of Plea.] —
The appellant was charged with being unlaw-
fully m possession of a coining mould without
lawful excuse. When called upon to plead,
he said that he was guilty of having the
mould in his possession. This was entered
as a plea of " Guilty." Later, when sentence
was about to be passed, the appellant set up
what he regarded as a lawful excuse for the
possession of the mould. No effect was,
however, given to this statement of the
appellant, who was then sentenced : — Held,
that the appellant had not pleaded " Guilty " ;
that no legal sentence had been passed ; and
that the case must go back and the appellant
called upon to plead to the indictment. Rex
V. Baker, 28 T. L. R. 363— CCA.
Autrefois Acquit.] — The plea of autrefois
acquit is not proved unless it is shewn that
the verdict of acquittal on the previous charge
necessarily involved an acquittal of the charge
to which the plea of autrefois acquit is pleaded,
or that the accused could have been convicted
of the latter charge on the trial of the previous
charge. Rex v. Barron (No. 2), 83 L. J.
K.B. 786; [1914] 2 K.B. 570; 78 J. P. 311;
58 S. J. 557 ; 30 T. L. R. 422— CCA.
The appellant was acquitted on a charge
of sodomy. He was then indicted for com-
mitting an act of gross indecency with the
same male person, to which he pleaded autre-
fois acquit : — Held, that as the verdict of
acquittal on the charge of sodomy did not
involve an acquittal on the charge of gross
indecency, because neither the act of penetra-
tion, which is an essential element of the
charge of sodomy, nor the intention to pene-
trate, which is an essential element of an
attempt to commit that offence, is an essential
element of the offence of gross indecency, and
that as it was conceded that the appellant
could not in law have been convicted of gross
indecency on the more serious charge, the
plea of autrefois acquit was not proved. 7b.
Admissibility after Plea of " Not
guilty."] — The appellant was charged with
murder on a coroner's inquisition, and on
indictment with the manslaughter of the same
person, to both of which charges he pleaded
" Not guilty." No evidence was offered by
the prosecution on the inquisition, and the jury
found a verdict of " Not guilty " upon it.
Before the trial of the indictment the
appellant's coiinsel handed in a written plea
of autrefois ac(/uii, additional to the above plea
of " Not guilty." which was accepted by the
Judge. The Judge then directed the jury that
there was no evidence in support of the plea,
and the jury consequently found that the
appellant had not been autrefois acquit. He
was then tried on this plea of " Not guilty "
and convicted : — Held, that, whether the
Judge was right or not in directing the jury
that there was no evidence in support of the
plea of autrefois acquit, the appellant, having
439
CEIMINAL LAW.
440
pleaded " Not guilty," was not entitled to
plead autrefois acquit in addition as long
as the plea of " Not guilty " stood on the
record, and that therefore he could not rely
on that plea as a ground for quashing the
conviction. Rex v. Banks, 81 L. J. K.B.
120; [1911] 2 K.B. 1095; 106 L. T. 48;
75 J. P. 567; 22 Cox C.C. 653; 55 S. J. 727;
27 T. L. R. 575— CCA.
Plea of Autrefois Convict — Manslaughter of
Child — Previous Conviction for Wilful
Neglect, 1 — By section 12, sub-section 4 of the
Children Act, 1908, " Upon the trial of any
person over the age of sixteen indicted for the
manslaughter of a child or young person of
whom he had the custody, charge or care, it
shall be lawful for the jury, if they are satis-
fied that the accused is guilty of an offence
under this section in respect of such child or
young person, to find the accused guilty of
such offence." The appellant was convicted
before Justices, under section 12 of the above
Act, of neglecting her children. After this
conviction one of the children died, and the
appellant was then indicted for manslaughter
and was convicted : — Held . that on the indict-
ment for manslaughter the plea of autrefois
convict was not available to the appellant, as
the child did not die until after the first
conviction and as the above enactment did not
enable the jury to find a verdict of wilful
neglect in a case where on the facts they
came to the conclusion that the accused was
guilty of manslaughter. Rex v. Tonks,
60 S. J. 122; 32 T. L. E. 137— CCA.
Conviction Quashed on Certiorari — Accused
again Charged with Same Offence — Res
Judicata.] — Where a conviction by Justices
is quashed on certiorari on the ground that
it is bad on its face by reason of the sentence
pronounced being one which the Justices had
no justification to award, the case is to be
treated as if the conviction had not been
made. The accused may be put on trial
again on the same charge, and he cannot
successfully avail himself of the objection of
autrefois convict or autrefois acquit, either of
which must have for its basis an adjudication
in fact within jurisdiction. Conlin v. Patter-
son. [1915] 2 Ir. R. 169— K.B. D.
3. Summing-up.
Whatever line of defence is taken by
counsel at a trial, it is for the Judge to leave
to the jury all the questions which appear to
him to arise upon the evidence, whether they
have been raised bv counsel or not. Rex v.
Hopper. 84 L. J. K.B. 1371: [1915] 2 K.B.
431 ; 113 L. T. 381 ; 79 J. P. 335 : 59 S. J. 478;
31 T. L. R. 360— CCA.
The Court must not exclude from considera-
tion any view of the facts of a case other
than that presented by the prisoner in giving
evidence. lb.
4. Recogxisances.
Defendant not Bound Over for Definite
Period.^ — The defendant was convicted of
publishing a libel, and was bound over to be
of good behaviour, but the recognisance con-
tained no time limit : — Held, without deciding
whether there was power to order a person
to enter into a recognisance to be of good
behaviour for an indefinite time, that the old-
established practice should be followed and
a definite time should be fixed. The Court
accordingly fixed a period of five years. Rex
V. Edgar, 109 L. T. 416; 77 J. P. 356;
23 Cox C.C 558; 57 S. J. 519; 29 T. L. R.
512— CCA.
IV. JURIES.
See also Vol. IV. 1791, 2190.
Application to Quash Jury Panel.] — Where
the record of a criminal trial has been moved
into the King's Bench, the Divisional Court
will not entertain an application made to its
inherent jurisdiction to quash the panel on
the ground that the jurors' book is irregular.
Rex V. Ryan [No. 2), [1914] 2 Ir. E. 283—
K.B. D.
Illness of Juryman — Separation from Re^t
of Jury — Sworn Jury Bailiff.] — Upon a trial
for murder one of the jurymen was taken
ill. He left the jury box and was taken out
of Court, accompanied by two medical men
and a jury bailiff, who, however, was not
sworn for that purpose. After an absence
of three-quarters of an hour, during which
time no one but the doctors spoke to him,
the juryman rejoined the rest of the jury and
the trial proceeded. The prisoner having been
convicted, — Held, that as the evidence shewed
that there had been no opportunity of tam-
pering with the juryman, the fact that he
had left the Court in charge of an unsworn
bailiff did not establish that there had been
a mistrial. Rex v. Crippen, 80 L. J. K.B.
290: [1911] 1 K.B. 149: 103 L. T. 705;
75 J. P. 141; 22 Cox C.C. 289; 27 T. L. R.
69— CCA.
Separation of Juror from Colleagues after
Summing-up — Abortive Trial — Admissibility
of Juror's Explanation.] — If a juror, after the
Judge has summed up in any criminal trial,
separates himself from his colleagues, and, not
being under the control of the Court, converses
or is in a position to converse with other
persons, it is an irregularity which renders the
whole proceedings abortive. Hence, where a
juror, when the jury retired to consider their
verdict, separated himself from them and left
the precincts of the Court for a short time,
and then rejoined them, the conviction was
quashed. But the prosecution were at liberty
to recommence the proceedings. An explana-
tory letter of the juror was not admissible in
evidence in the Court of Criminal Appeal.
Rer V. Ketteridqe, 84 L. J. K.B. 352; [1915]
1 K.B. 467; 112 L. T. 783: 79 J. P. 216;
59 S. J. 163: 31 T. L. R. 11.5 -CCA.
Evidence as to Bias — Appeal. 1 — On an
appeal where suggestions were made as to the
probability of bias on the part of two of the
jurvmen who tried the case, the Court allowed
evidence to be called in reference to those
suggestions, but intimated that the granting
441
CRIMINAL LAW
442
of such leave must not be taken as a precedent.
Rex V. Hancox, 29 T. L. K. 331— CCA.
Juryman — Alleged Misconduct.] — On an
appeal against a conviction the appellant
applied for leave to call evidence that one of
the jury had stated on the evening of the
first day of the trial that all the jury were
friendly with the police, and it made no
difference what the appellant said. In the
grounds of appeal there was nothing as to
the misconduct of a juryman : — Held, that the
Court ought not to accede to the application.
Rex V. Syme, 112 L. T. 136; 79 J. P. 40;
30 T. L. R. 691— CCA.
Discharge of Jury — Effect of Subsequent
Trial before Another Jury.] — Where a prisoner
has been put upon his trial, given in charge
to the jury, and, after the case has been
opened, some of the witnesses are found not
to be present owing to some unforeseen acci-
dent, it may be proper to adjourn the trial
generally, but where the witnesses are absent
owing to some mistake — for example, as to
the date of trial — the proper practice is to
adjourn the case for a reasonable time for the
prisoner to be tried by the same jury, and,
if that cannot be done, a verdict should be
taken on the evidence as it stands. The
jury should not be discharged and the case
adjourned merely to enable the prosecution to
establish a stronger case against the prisoner.
Rex V. Lewis, 78 L. J. K:B. 722; 100 L. T.
976: 73 J. P. 346: 22 Cox CC 141;
25 T. L. E. 582— CCA.
Prisoners Tried in one Court — Discharge of
Jury when Unable to Agree by Chairman of
other Court — Discretion of " presiding Judge "
— Presence of Prisoners when Jury Dis-
charged."— At quarter sessions, where two
Courts had been formed, the appellants were
tried in the second Court. The jury retired
to consider their verdict, and the second Court
then adjourned. During the adjournment, and
in the absence of the chairman of the second
Court, the chairman of the first Court, ascer-
taining that the jury, who were considering
their verdict in the appellants' case, were
unable to agree, sent for them and discharged
them, and then tried the appellants with
another jury. It did not appear whether the
appellants were present in Court when the
first jiiry were discharged : — Held, that as the
whole body of Justices constituted the Court
of quarter sessions, and that as it must be
assumed that the first Court was properly
constituted of two or more Justices, the chair-
man of the first Court could competently
discharge the jury; and query, whether it was
necessary, in order to constitute a valid dis-
charge of the jury, that the appellants should
then have been present in Court. Rex v.
Richardson. 82 L. J. K.B. 333: [1913] 1 K.B.
395 : 108 L. T. 384 : 77 J. P. 248 ; 23 Cox CC.
332; 57 S. J. 247; 29 T. L. R. 228— CCA.
Discussion of Clerk of Assize with Jury.l —
On the trial of a prisoner at assizes, some
time after the jury had retired to consider
their verdict, the clerk of assize went to their
room and asked if they had agreed or were
likely to agree. The jury then put some
questions to him, and he answered them and
a discussion took place. Later he visited the
jury again, and a further discussion took place.
Eventually the jury found the prisoner guilty :
— Held, that evidence from the jurymen to
prove the above facts was inadmissible, but
that the Court could act upon a report made
by the clerk of assize, and that as it was
impossible to say that but for the discussions
and the advice given by him the jury would
have come to a unanimous conclusion, the con-
viction must be quashed. Rex v. Willmont,
78 J. P. 352; 30 T. L. R. 499— CCA.
V. EVIDENCE.
1. COXFESSIONS .'VXD ADMISSIONS.
See also Vol. IV. 1811, 2192.
Confession — Admissibility.] — A private in an
Indian regiment murdered one of the officers.
Shortly afterwards, while he was in custody,
the commanding officer asked him, " Why
have you done such a senseless act?" and he
replied, " Some three or four days he has been
abusing me, and without doubt I killed him."
At the trial the Judge admitted this state-
ment, which was objected to by counsel for
the defence. The prisoner was convicted : —
Held, that even if the evidence was inadmis-
sible— which semble that it was not — there
being ample undisputed evidence aliunde of
the guilt of the prisoner, and it being very
improbable that the statement influenced the
verdict of the jury, there was no such mis-
carriage of justice as would justify the
Judicial Committee in advising an inter-
ference in the matter. Ibraliim v. Regem,
83 L. J. P.C 185; [1914] A.C 599; 111 L. T.
20; 30 T. L,. E. 383— P.C.
Statement by Prisoner in Nature of Con-
fession."— A statement in the nature of a
confession was made by a prisoner to a police
officer. The police officer had not introduced
the subject or held out any hope of pardon
to the prisoner : — Held, that such statement
was properly admitted in evidence against the
prisoner. Rex v. Godinho, 76 J. P. 16;
55 S. J. 807; 28 T. L. R. 3— CCA.
Prisoners in Adjoining Cells — ConYcrsation
— Prisoners Charged Jointly — Statement by
One — Implication of Other — Admissibility.] —
Where two persons are charged with being
concerned in the same offence and are put in
adjoining cells and the police overhear a con-
versation between them, evidence of the
conversation is admissible at the trial. Rex v.
Gardner, 85 L. J. K.B. 206; 32 T. L. R. 97
—CCA.
Where two persons have been separately
arrested and separately charged with an offence
and have subsequently been put in the dock
together and charged jointly, a statement
made previously by one of them behind the
back of the other and implicating him ought
not to be read in the presence of that other.
Nevertheless, any material statement or con-
fession by the other in answer to such state-
ment is admissible in evidence, but the Judge
443
CEIMINAL LAW.
444
ought to reject it if he is satisfied that it was
read over to the prisoner for the mere purpose
of getting an admission from him. Rex v.
Hancox, 85 L. J. K.B. 206; 60 S. J. 76;
32 T. L. E. 97— CCA.
Accused Questioned by Police Officer.] — No
police oiScer has a right to put any question
to an accused person when he is once in
custody. To say to him "It is alleged so
and so " is only a subtle form of cross-
examination. Rex V. Winkel, 76 J. P. 191
— Avory, J.
The fact that a prisoner is in custody
does not necessarily make a statement made
by him in reply to a question by a police
constable inadmissible in evidence. Reg v.
Gavin (15 Cox CC 656) disapproved. Rex
V. Best, 78 L. J. K.B. 658; [1909]
1 K.B. 692; 100 L. T. 622; 22 Cox CC 97;
25 T. L. E. 280— CCA.
Statements made by an accused person
to a constable in reply to an enquiry are not
inadmissible on the ground that the constable
did not previously caution him, provided that
the constable did not, before making the
enquiry, make up his mind to take the person
into custodv or to take proceedings against him.
Lewis V. Harris, 110 L. T. 337; 78 J. P. 68;
24 Cox CC. 66; 58 S. J. 156; 30 T. L. E. 109
— D.
Two Persons Jointly Charged — Written
Statement by One Prisoner — Admissibility
against the Other.] — A written statement
made by one of two persons jointly charged
with a criminal offence may be admissible in
evidence against the other, notwithstanding
that the latter, when the statement was read
over to him, said that it was false. Reg v.
Smith. (18 Cox CC. 470; 61 J. P. 120) dis-
sented from. Rex v. Thompson , 79 L. J.
K.B. 321: ri910] 1 K.B. 640; 102 L. T. 257;
74 J. P. 176; 22 Cox CC 299; 26 T. L. E.
252— CCA.
Statement by One Prisoner Implicating
Another — Denial of Truth of Statement —
Direction to Jury.] — The jury should be
directed that a statement made by one
prisoner implicating another and immediately
denied, although strictly admissible as evi-
dence, must not be accepted as evidence of the
facts contained in such statement. Notwith-
standing the lack of such a direction to the
jury by the presiding Judge at the trial, the
Court will act under the proviso to section 4
of the Criminal Appeal Act, 1907, if they are
satisfied that no substantial miscarriage of
justice has taken place. Rex v. Curnock,
111 L. T. 816; 24 Cox CC. 440— CCA.
Evidence of Previous Convictions — State-
ments in Calendar.] — The appellant was con-
victed of larceny. He had been previously
convicted, but the convictions were not form-
ally proved. The Eecorder. addressing him,
said, " You have a long list against you,"
and the appellant replied, "Yes, sir": —
Held, that the way in which the appellant
was treated with regard to his previous con-
victions was irregular, and that the sentence
imposed upon him should be reduced. Per
Avory, J. : The admission that there was a
long list against the appellant was not an
admission by him that the list was true. The
habit of acting on statements appearing in
the calendar is irregular. Rex v. Metcalfe,
29 T. L. E. 512— CCA.
2. Depositions.
See also Vol. IV. 1835, 2195.
Person Charged with Indictable Offence —
Material Witness Dangerously 111 — Duty of
Magistrate to take Depositions at Residence
of Witness.] — A magistrate before whom a
person charged with an indictable offence is
brought is bound under section 17 of the
Indictable Offences Act, 1848, to go to the
residence of a witness who is so dangerously
ill that he is unable to appear in Court, in
order to take the deposition of the witness in
the presence of the accused person, provided
that it is practicable for him to do so. The
question wliether or not it is practicable for
the magistrate to take the deposition must be
decided by the magistrate in his discretion,
which he must exercise in a judicial manner.
This obligation exists whenever a person is
charged with any indictable offence, and not
merely in cases of murder or manslaughter,
and does not depend on whether the magistrate
is asked by a superior officer of the police to
take the deposition. If it is not practicable
for that magistrate to take the deposition
application may be made under section 6 of
the Criminal Law Amendment Act, 1867, to
another Justice to take the deposition. Rex v.
Bros; Hardy, Ex parte, 80 L. J. K.B. 147;
[1911] 1 K.B. 159; 103 L. T. 728; 74 J. P.
483 ; 22 Cox CC 352 ; 55 S. J. 47 ; 27 T. L. E.
41— D.
Deposition of Accused before Justices on
Charge of Misdemeanour — Admissibility of
Deposition at Trial for Felony.] — The prisoner
was indicted under section 4 of the Criminal
Law Amendment Act, 1885, for the felony of
carnally knowing, in March, 1911, a girl
under the age of thirteen years. He was also
indicted under section 5 of the same Act for
the misdemeanour of carnally knowing the
same girl in April, 1912, she then being above
the age of thirteen years and under the age
of sixteen years. When before the Justices
the prisoner, who was then only charged with
the misdemeanour under section 5, gave evi-
dence, in the course of which he admitted
having had intercourse with the girl in March,
1911, and at Christmas, 1911, but not at any
later date. At the trial the prosecution pro-
ceeded with the indictment for the felony
under section 4 of the Act and tendered in
evidence the prisoner's deposition before the
Justices when before them on the mis-
demeanour charge under section 5 : — Held,
that the deposition was admissible in evidence.
Rex V. Chapman, 29 T. L. E. 117—
Channell, J.
Deposition of Accused before Coroner —
Admissibility of Deposition at Trial of
Accused.] — At the trial of M. for manslaughter
445
CRIMINAL LAW.
446
the prosecution proposed to put iu as evidence
against him his deposition at the inquest
before the coroner : — Held, that the deposition
was admissible under the Coroners Act, 1887,
and that it could be proved by any person
present at the inquest who could prove the
coroner's handwriting and that the deposition
was read over to and was signed by M. Rex
V. Marriott, 75 J. P. 288; 22 Cox C.C. 211—
Avory, J.
Contradiction by Witness at Trial of
Deposition at Police Court — Hostile Witness.]
— See Rex v. ]V!lUa)iis. po^t . col. 451.
3. Statements by Deceased Persons.
Statements by Deceased Woman as to her
Intention to Perform Operation on Herself.]
— The appellant was indicted for having used
an instrument on a woman with intent to
procure her miscarriage. The woman upon
whom the operation was alleged to have been
performed had died although not as the result
of the operation. At the trial counsel for the
appellant proposed to ask in cross-examination
a witness (a) whether the deceased had said
to her some time previously to the date of the
alleged illegal operation by the appellant that
she intended to perform an illegal operation
upon herself; and (b) whether the deceased
had said about a week after the date of the
alleged illegal operation by the appellant that
she had in fact performed, or had attempted
to perform, upon herself an illegal operation.
The Judge refused to allow this evidence to
be given. The appellant was convicted : —
Held, that the evidence was rightly rejected.
Rec). V. Gloster (16 Cox. C.C. 47lf approved.
Rex V. Thomson, 81 L. J. K.B. 892; [1912]
3 K.B. 19; 107 L. T. 464; 76 J. P. 431;
23 Cox C.C. 187; 28 T. L. R. 478— CCA.
Admissibility as Dying Declaration.] — In
order that a statement of a deceased person
should be admissible as a dying declaration it
must be proved that at the time the statement
was made death was imminent and that the
person making the statement was under a
settled hopeless expectation of death. The
real test is not that the person making the
statement should believe that he was at the
immediate point of death, but that he should
have given up every hope of life. Rex v.
Perry, 78 L. J. K.B. 1034; [1909] 2 K.B.
697:' 101 L. T. 127: 73 J. P. 456; 53 S. J.
810: 22 Cox C.C. 154: 25 T. L. R. 676—
CCA.
4. Accomplices.
See aho Vol. TV. 1852, 2197.
Corroboration.! — The kind of corroboration
necessary to corroborate the evidence of an
accomplice must depend upon the nature of
the particular charge which is being enquired
into. Rex v. Winkel, 76 J. P. 191— Avory, J.
It is the practice of the Court of Criminal
Appeal to require corroboration of the evidence
of an accomplice in cases where it is not
necessary by statute. Rex v. Everest
(2 Cr. App. Rep. 130) and Rex v. Wilson
(6 Cr. App. Rep. 125) followed. Rex v. Cohen,
111 L. T. 77; 24 Cox C.C. 216— CCA.
Whether Corroboration Necessary — Living
on Earnings of Prostitution — Evidence of
Woman.] — There is no rule of law that on a
charge against a man of living on the earnings
of prostitution the evidence of the woman must
be corroborated, but in such a case the Judge
is justified in warning the jury not to accept
the woman's evidence without most careful
scrutiny. Rex v. King (No. 2), 111 L. T. 80;
24 Cox C.C 223: 30 T. L. R. 476— CCA.
Child — Statement Made in Presence of
Accused.] — The respondent was charged with
an indecent assault on a child of tender years.
At the trial the child was called as a witness
and gave evidence not on oath, under the
provisions of the Children Act, 1908, s. 30.
Evidence of witnesses as to statements made
by the child shortly after the commission of
the offence, identifying the accused, and giving
particulars of the offence charged, was
admitted, and the prisoner was convicted : —
Held, that such statements were not admis-
sible as part of the res gestce, and if they
were admissible either as part of the act of
identification or as statements made in the
presence of the accused, which semble that
they were, they did not amount to corrobora-
tion of the testimony of the child given in
Court, as required by the statute, and that
the conviction must be quashed. Rex v.
Norton (79 L. J. K.B. 756; [1910] 2 K.B.
496) discussed and explained. Director of
Public Prosecutions v. Christie, 83 L. J.
K.B. 1097; [1914] A.C 545; 111 L. T. 220;
78 J. P. 321; 24 Cox C.C 249; 58 S. J. 515:
30 T. L. R. 471— H.L. (E.)
Judgment of the Court of Criminal Appeal
(30 T. L. R. 41: 9 Cr. App. Rep. 169) affirmed.
lb.
Wife of Accomplice.] — Whether the testi-
mony of the wife of an accomplice can be
corroboration of his statements, quare. Rex
V. Payne, 29 T. L. R. 250— CCA.
Misdirection as to Corroboration.] — Con-
viction for murder quashed on the ground of
misdirection by the Judge as to the extent
of corroboration of a witness whose character
and whose part in the transaction were such
that his evidence required corroboration. Rex
V. Ellson, 76 J. P. 88; 28 T. L. E. 1—
CCA.
5. Competency of Witnesses.
See also Vol. IV. 1855, 2198.
a. Prisoners.
Prisoner Giving Evidence on Behalf of Co-
prisoner — Cross-examination as to his own
Guilt.] — A prisoner who refuses to give
evidence on his own behalf, but who gives
evidence on behalf of a fellow-prisoner, is
liable under section 1, sub-section (e) of the
Criminal Evidence Act. 1898, to be cross-
447
CRIMINAL LAW.
448
examined in order to shew that he himself is
guilty of the offence charged. Rex v.
Rowland, 79 L. J. K.B. 327; [1910] 1 K.B.
458; 102 L. T. 112; 74 J. P. 144; 22 Cox
C.C. 273; 26 T. L. E. 202— CCA.
Questions Tending to Shew Commission of
Another 0£fence — Admissibility — " Proof."] —
The appellant was charged with having had
carnal knowledge of a girl under sixteen years
of age. The prosecutrix stated that at the
time of the commission of the offence charged
he had told her of his immoral relations with
another girl, also alleged to be under sixteen
years of age, and had said that he hoped that
the prosecutrix would be as loving to him as
this other girl had been. The appellant gave
evidence on his own behalf, and in cross-
examination was asked whether he had had
such immoral relations, and letters alleged
to have been written by him to the other girl
were put to him : — Held, that, although they
tended to shew that he had committed an
offence other than that with which he was
then charged, the questions were admissible
on the ground that they were relevant to the
charge then being tried as tending to estab-
lish a fact consistent only with his guilt, and
that they came within the exception contained
in section 1 (/) (i) of the Criminal Evidence
Act, 1898. Rex v. Chitson, 79 L. J. K.B.
10; [1909] 2 K.B. 945; 102 L. T. 224;
73 J. P. 491; 22 Cox C.C. 286; 53 S. J. 746;
25 T. L. E. 818— CCA.
Semble, " proof " in the above sub-section
is equivalent to " evidence." lb.
In considering whether, within sec-
tion 1 (/) of the Criminal Evidence Act, 1898,
a question put to a prisoner in cross-examina-
tion tends to shew that he has committed an
offence other than that charged in the parti-
cular indictment, it must be judged by the
light of the other questions put to him. Any
question or series of questions which would
reasonably lead the jury to believe that it is
being imputed to the prisoner that he has
committed another offence tends to shew that
he has committed that other offence. The
object of the enactment is that, except in the
specified cases, it should not be suggested to
the minds of the jury by means of any ques-
tions put to the prisoner that he has com-
mitted another offence. Where a question of
this nature is improperly put, it is the duty of
the Judge not to wait for any objection from
the prisoner's counsel, but to stop such ques-
tion himself; and if. by mischance, the ques-
tion is put, it is the duty of the Judge to
direct the jury to disregard it, and not to let
it influence their minds. Rex v. Ellis,
79 Jj. J. K.B. 841: [1910] 2 K.B. 746;
102 L. T. 922; 74 J. P. 388; 22 Cox C.C.
330: 26 T. L. E. 535— CCA.
Clause 2 of section 1 (/) of the Criminal
Evidence Act, 1898. is intended to apply to
cases where witnesses to character are called,
or where evidence of the good character of the
prisoner is sought to be elicited from the wit-
nesses for the prosecution. It does not apply
to mere assertions of innocence, or repudiation
of guilt, on the part of the prisoner, nor to
reasons given by him for such assertions or
repudiation. lb.
The appellant was convicted of obtaining
money from D. by false pretences. It was
alleged by the prosecution that various articles
of china referred to in the indictment were
sold by the appellant to D. under an agree-
ment that he was to charge D. the cost price
plus 10 per cent, profit or commission ; that
the appellant represented to D. that the cost
was much in excess of the real cost ; and that
by this means he had obtained from D. much
larger sums than he was entitled to. The
appellant gave evidence on his own behalf,
and in cross-examination questions were put
to him suggesting that in other transactions
he had obtained money from D. by alleging
that certain china figures were genuine pieces
of old Dresden china, whereas he must have
known that they were not : — Held, that, as
evidence that the appellant had committed
frauds in connection with those other trans-
actions was not admissible to shew that lie
was guilty of the frauds charged, the ques-
tions put in cross-examination were impro-
perly allowed, inasmuch as they tended to
shew that the appellant had committed an
offence other than that with which he was
charged, and that the conviction must be
quashed, as the jury must have been influenced
by such evidence. 76.
Question Tending to Shew Bad Character —
Relevant Matter.] — A question put in cross-
examination to a person charged with an
offence is admissible if it is relevant to the
issue which is being tried, notwithstanding
that it tends to shew that such person is of
bad character, and notwithstanding the pro-
visions of section 1 (f) of the Criminal Evidence
Act, 1898. Rex v.' Kurasch, 84 L. J. K.B.
1497; [1915] 2 K.B. 749; 113 L. T. 431;
79 J. P. 899— CCA.
The appellant and four other men were
tried and convicted for conspiring by means
of false pretences to defraud the prosecutor,
the false pretences alleged being tlie holding
of a mock auction. The defendants denied
the false pretences, and also alleged that they
were all merely the servants of a woman who
was the proprietress of the auction business.
Evidence was given for the prosecution that
the appellant had said at the time of his arrest
that one of the other defendants was employed
by him. The appellant gave evidence, and
was asked in cross-examination whether it
was not the fact that he and the proprietress
of the business were at the date of the offence
living together as man and wife. The appel-
lant answered the question in the affirmative.
The appellant appealed against his conviction
on the ground that this question was a con-
travention of the Criminal Evidence Act, 1898,
s. 1 (f). in that it tended to shew that he was
a person of bad character : — Held, that, the
defence having raised the issue that the defen-
dants were only the servants of the pro-
prietress of the business, it was material to
shew what were the real relations existing
between her and the appellant, and that the
question was therefore admissible. Principle
of law laid down in Rex v. Fif^her (79 L. J.
K.B. 187: [1910] 1 K.B. 149) and Rex v.
Rodney (82 L. J. K.B. 1070: [1913] 3 K.B.
468) approved and applied. 16.
449
CKIMINAL LAW.
45a
Conduct of Defence — Imputations on
Character of Witness for Prosecution — Cross-
examination of Prisoner.] — Circumstances in
which the Court held that the cross-examina-
tion of the appellant as to character was
justified in view of the questions put by him
in cross-examination to one of the witnesses
for the prosecution. Rex v. Watsoii, 109 L. T.
335; 23 Cox C.C. 543; 29 T. L. E. 450—
CCA.
A prisoner on his trial for robbery with
violence, in giving evidence on his own behalf,
stated that a detective had coached the pro-
secutor as to the amount he was to say he
was robbed of, and that a police inspector
had struck him in the face when he protested
against the coaching of the prosecutor. Neither
of these police officers was a witness in the
case. The prisoner also said in his evidence
that the prosecutor was a habitual drunkard,
and further that the police constable who
arrested him had used improper violence in
doing so : — Held, that those statements did
not involve imputations upon the character
of the prosecutor or the witnesses for the pro-
secution within section 1 if) of the Criminal
Evidence Act, 1898, so as to justify the cross-
examination of the prisoner as to his previous
convictions. Rex v. Westfall, 107 L. T. 463;
76 J. P. 335; 23 Cox C.C. 185; 28 T. L. E.
297— CCA.
The excepting words of section 1 (/) (ii) of
the Criminal Evidence Act, 1898, which section
enacts that a person charged and called as a
witness in pursuance of the Act shall not be
required to answer any question tending to
shew that he has committed or been convicted
of or been charged with any offence other than
the one then charged against him, "unless . . .
(ii) . . . the nature or conduct of the defence
is such as to involve imputations on the
character of the prosecutor or the witnesses for
the prosecution," must receive their ordinary
and n^atural interpretation, and must not be
qualified by adding or inserting the words
"unnecessarily" or "unjustifiably" or "for
purposes other than that of developing the
defence," or other similar words. Hence,
where the prisoner's counsel cross-examined
witnesses for the prosecution to shew that it
was they who had committed the offence with
which the prisoner was charged, it was held
that the conduct or nature of the defence
involved imputations on their character within
the meaning of the above section, and that he
could be cross-examined as to a previous con-
viction. Rex V. Bridgicater (74 L. J. K.B.
35; [1905] 1 K.B. 131) and Rex v. Preston
(78 L. J. K.B. 335; [1909] 1 K.B. 568) dis-
tinguished. Rex V. Hudson. 81 L. J. K.B.
861 ; [1912] 2 K.B. 464 ; 107 L. T. 31 ; 76 J. P.
421 ; 23 Cox C.C. 61 ; 56 S. J. 574 ; 28 T. L. E.
459— CCA.
On the hearing of a charge of subornation
of perjury a witness for the prosecution was
put forward as an accomplice and a man of
bad character. He was cross-examined on
behalf of the accused as to a suggested charge
of fraud to which no reference had been made :
— Held, that this amounted to an imputation
on the character of the witness which entitled
the prosecution to cross-examine the accused
as to a previous conviction. Rex v. Cohen ^
111 L. T. 77; 24 Cox C.C 216— CCA.
Comment by Judge on Fact of Person not
Giving Evidence.] — If a prisoner elects not to-
take advantage of the provisions of section 1
of the Criminal Evidence Act, 1898 (61 &
62 Vict. c. 36), and does not offer himself as
a witness on his own behalf, it is entirely
in the discretion of the Judge to comment on
that fact in whatever way and to whatever
extent he thinks fit. Rex v. Smith, 84 L. J.
K.B. 2153; 59 S. J. 704; 31 T. L. E. 617—
CCA.
b. Other Witnesses.
Identification.] — Observations as to methods
of identification of accused persons. Rex v.
Chapman, 28 T. L. E. 81— CCA.
Opinion of Medical Witnesses — Admissi-
bility.]— The opinion of medical witnesses on
any matter is admissible in evidence, if the
giving of such opinion entails the exercise of
their professional skill and knowledge. Rex
V. Smith, 84 L. J. K.B. 2153; 59 S. J. 704;
31 T. L. E. 617— CCA.
Murder — Expert Giving Evidence as to
whether Wound Self-inflicted or not — Expert
not having seen Body of Deceased — Admissi-
bility.]— In a trial for nmrder an expert who
has not seen and examined the body of the
deceased, but who has heard a description given
by a doctor or other witness who has seen the
body and the wounds thereon, may be called
as a witness and may competently be asked
whether in his opinion, assuming the facts
described by the witness who has seen the body
to be true, the wounds could have been self-
inflicted or not. Rex v. Mason, 76 J. P. 184;
28 T. L. E. 120— CCA.
Confldential Communication between Pri-
soner and Solicitor.] — Evidence of a con-
fidential communication between a prisoner
and his solicitor is admissible if the consulta-
tion with the solicitor, in the course of which
such communication was made, was sought by
the prisoner for the purpose of ascertaining
how to commit the offence charged against
him, or whether it was necessary or expedient
to commit it in order to obtain a desired end.
Reg. V. Cox (54 L. J. M.C 41; 14 Q.B. D.
153) followed. Rex v. Smith, 84 L. J. K.B.
2153; 59 S. J. 704; 31 T. L. E. 617— CCA.
Husband or Wife — Competent or Compellable
Witness.] — By section 4, sub-section 1 of the
Criminal Evidence Act, 1898, the wife or hus-
band of a person charged with an offence under
any enactment mentioned in the schedule to
that Act is a competent but not compellable
witness against the person charged. Leach v.
Director of Public Prosecutions, 81 L. J. K.B.
616; [1912] A.C 305; 106 L. T. 281;
22 Cox C.C. 721 ; 76 J. P. 201 ; 56 S. J. 342 ;
28 T. L. E. 289— H.L. (E.)
Living on Earnings of Wife's Prostitu-
tion— Admissibility of Wife's Evidence.] —
Upon an information against the prisoner
15
451
CEIMINAL LAW
452
under section 1 of the Vagrancy Act, 1898,
for knowingly living on the earnings of the
prostitution of his wife, the prosecution
tendered the prisoner's wife as a witness
against him, but the magistrate refused to
receive her evidence : — Held (Lush, J., dis-
senting), that that evidence was inadmissible,
and that the magistrate was right in excluding
it. Director of Public Prosecutions v. Blady,
81 L. J. K.B. 613 ; [1912] 2 K.B. 89 ; 106 L. T.
302; 76 J. P. 141; 22 Cox C.C. 715;
28 T. L. R. 193— D.
Whether Objection to Give Evidence
Taken by Wife.] — On a prosecution of the
appellant for an offence under the Criminal
Law Amendment Act, 1885, his wife was
called as a witness by the prosecution before
the Justices, and she gave evidence. She had
not been w^arned that she was not bound to
give evidence unless she wished, but in the
course of giving her evidence she said, " I
wish to shield my husband." The appellant
was committed for trial, and at the assizes,
his wife being then ill, her deposition was
read to the jury. The appellant was con-
victed : — Held, that, although the appellant's
wife was not a compellable witness, her state-
ment in the course of her evidence, " I wish
to shield my husband," could not be regarded
as equivalent to a statement that she did not
wish to give evidence ; and therefore that her
deposition was properly admitted at the trial.
Rex V. Acaster, 106 L. T. 384; 76 J. P. 263;
22 Cox C.C. 743; 28 T. L. R. 321— CCA.
Semble. in a case where a wife, although
a competent, is not a compellable, witness
against her husband, it may be proper, in
view of observations by the House of Lords
in Leach v. Director of Public Prosecutions
(supra), that she should be warned by the
Judge that she is not bound to give evidence.
lb.
Children — Unsworn Evidence — Requirement
of Corroboration — Direction to Jury. — Where
on a criminal prosecution the prosecutrix is a
child of tender years and evidence is given by
her under section 30 of the Children Act, 1908,
without being sworn, the Judge ought to point
out to the jury that they must not act on the
evidence of the child unless it is corroborated.
Rex V. Murray, 30 T. L. R. 196— CCA.
Deposition at Police Court — Contradiction by
Witness at Trial — Hostile Witness.] — On
appeal from a conviction for murder. — Held,
on the facts, that there had been no misdirection
by the Judge at the trial in reference to the
evidence of a witness for the prosecution who
withdrew on one material point the evidence
she gave at the police Court and was allowed
to be treated by the counsel for the prosecution
as a hostile witness. Rex v. Williams,
77 J. P. 240; 29 T. L. R. 188— CCA.
6. Evidence to Credit.
Evidence of Good Character of Prosecutrix —
Evidence in Contradiction — Admissibility.] —
The appellant was charged with an offence
against the Criminal Law Amendment Act,
1885. In opening the case counsel for the
Crown told the jury that the prosecutrix had
been seduced by the appellant, and she swore
the same thing in evidence. Evidence ten-
dered by the defence to shew that previous to
the alleged offence she had been a girl of bad
character was rejected : — Held, that it was
rightly rejected. Rex v. Cargill, 82 L. J. K.B.
655; [1913] 2 K.B. 271; 108 L. T. 816;
77 J. P. 347 ; 23 Cox C.C. 382 ; 29 T. L. R. 382
—CCA.
7. Practice at Trial.
See also Vol. IV. 18G0, 2204.
Submission at Close of Case for Prosecution
that no Case to go to Jury.] — Semble, the
Court of Criminal Appeal will not follow the
decision in Re.r v. Joiner (74 J. P. 200) in view
of the decisions in Rex v. Pearson (72 J. P.
449) and Rex v. George (73 J. P. 11), as to
evidence called for the defence after an un-
successful submission being made at the close
of the case for the prosecution that no evidence
to go to the jury. Rex v. Fraser, 76 J. P. 168
—CCA.
Prisoner Unable to Understand English —
Evidence at Trial not Interpreted — Prisoner
Defended by Counsel — No Application to Have
Evidence Interpreted.] — Where a prisoner
who understands little or no English is tried
for a criminal offence, and is undefended by
counsel, all the evidence at the trial should be
interpreted to him. If he is defended by
counsel, the safe course is that the evidence
should be interpreted unless the prisoner or
his counsel are willing to dispense with the
interpretation and the Judge assents to such a
course. He should not assent unless he is
satisfied that the prisoner knows the nature of
the case which is made against him, and in
any case any substantial departure from, or
addition to, the evidence appearing on the
depositions should be interpreted to the
prisoner, even if his counsel does not apply
for it to be done. Rex v. Lee Kun, 60 S. J.
158— CCA.
The appellant, a Chinaman, who understood
hardly any English, was convicted of murder.
He was defended by counsel at the trial, who
did not apply that the evidence should be
interpreted, nor was this done : — Held, that,
as the evidence at the trial did not differ from
that given at the police court, which had been
interpreted, no substantial miscarriage of jus-
tice had occurred. The appeal was therefore
dismissed under section 4, sub-section 1 of the
Criminal Appeal Act, 1907. lb.
Calling Fresh Evidence during Final
Speech.] — The Court granted leave to the
accused to call fresh evidence after counsel for
the Crown had commenced his final speech to
the jury. Rex v. Morrison, 75 J. P. 272;
22 Cox C.C 214— Darling, J.
Rebutting Evidence — Admissibility.] — The
question whether upon a criminal trial the
prosecution shall be allowed to call rebutting
evidence, after the close of the case for the
453
CRIMINAL LAW.
454
defence, is a question for the discretion of
the Judge presiding at the trial. Rex v.
Crippen, 80 L. J. K.B. 290; [1911] 1 K.B.
149 ; 103 L. T. 705 ; 75 J. P. 141 ; 22 Cox C.C
289; 27 T. L. R. 69— CCA.
Statements by Police Officer after Convic-
tion of Prisoner.] — Where, after a prisoner has
been convicted, a police officer makes a state-
ment to the Judge as to the prisoner's
antecedents, and the prisoner does not challenge
the accuracy of that statement, the Judge is
entitled to take it into consideration on the
question of sentence, notwithstanding that
sorae parts of the statement may be hearsay.
If, however, the prisoner challenges any part
of the statement, the Judge should then enquire
into it, and if he thinks it of sufficient import-
ance that it ought to be proved by legal evi-
dence he can, if necessary, adjourn the case
for such proof to be forthcoming ; or, instead of
doing this, he can disregard the disputed part
of the statement altogether. Re.r x. Campbell,
75 J. P. 216; 55 S. J. 273; 27 T. L. R. 256
—CCA.
8. EVIDEN'CE OF OTHER ACTS AXD OFFENCES.
See also Vol. IV. 1874, 2204.
Previous Charge — Admissibility.] ^On a
criminal prosecution evidence as to a previous
charge on which the prisoner has not yet been
tried is inadmissible. Rex v. Barron (No. 1),
110 L. T. 350; 78 J. P. 184; 24 Cox C.C. 83;
30 T. L. E. 187— CCA.
Previous Similar Offence — Admissibility.] —
On a charge against the appellants of demand-
ing money with menaces at the trial evidence
was admitted to prove that a few months
previously a similar transaction bad been
carried out by the same agent on behalf of the
appellants and a sum of u oney paid to him
in gold : — Held, that the evidence was properly
admitted. Rex v. Boyle, 83 L. J. K.B. 1801;
[1914] 3 K.B. 339; 111 L. T. 638; 78 J. P.
390; 58 S. J. 673; 30 T. L. R. 521— CCA.
J. was charged with having exposed his
person in a place of public resort with intent
to insult the complainant, a female, on July 16,
1914. He gave evidence on his own behalf,
and in cross-examination was asked if he had
not exposed himself to the complainant at the
same place in May, 1914. He denied that he
had done so. The Justices ruled that this
question should not have been put as being not
relevant to the issue before them and contrary
to the provisions of the Criminal Evidence Act,
1898. Subsequently the solicitor for the prose-
cution asked leave to recall the complainant in
order to rebut this denial by the respondent,
and also to call other witnesses to shew that
the respondent had been guilty of a systematic
course of conduct by indecently exposing him-
self with intent to insult females on other
occasions at the same place and about the
same hour. T1iis application was refused : —
Held, that the question put to the respondent
in cross-examination and the evidence of the
complainant in rebuttal of his denial were
admissible for the purpose of shewing that
the complainant was not mistaken in her
identification of the respondent, and that the
act of the respondent was done not accident-
ally, but wilfully, and with intent to insult
the complainant. Held, further, that the
evidence of other witnesses to prove a
systematic course of conduct on the part of
the respondent was not admissible unless it
appeared clearly and definitely that the
defence of accident, mistake, or absence of
intention to insult was going to be relied
upon, and that the other occasions which
would be referred to therein were sufficiently
proximate to the alleged offence to shew "a
systematic course of conduct. Perkins v
Jeffeni, 84 L. J. K.B. 1554; [1915] 2 K.B.
702 ; 113 L. T. 456 ; 79 J. P. 425 ; 31 T. L. R.
444— D.
Observations in Rex v. Bond (75 L. J
K.B. 693; [1906] 2 K.B. 389) considered. 76.
Obtaining Credit by Fraud — Admis-
sibility.]— The appellant v/as charged with
obtaining credit by fraud. Evidence was
given of two previous occasions upon
which he had obtained credit and had not
paid : — Held, that, as the Court thought that
those transactions could not properly have
been the subject of a criminal charge, they
were not transactions of a similar nature with
the transaction in question, and therefore
could not be given in evidence to shew fraud
on the latter occasion. Rex v. Baird, 84 L. J.
K.B. 1785; 113 L. T. 608— CCA.
See also Rex v. Fisher, ante, col. 406.
Subsequent Act — Breaking into House with
Intent to Commit Rape — Evidence of Accused
having Connection with Another Woman
shortly Afterwards — Admissibility.] — The
appellant was charged with having bur-
glariously broken and entered a dwelling house
with intent to commit rape on a certain woman
therein. At the trial the defences really in
issue were — first, that the appellant did not
break into the house at all; secondly, that he
did not break into the house with any intention
to commit rape; and thirdly, that the prose-
cutrix's story as to what occurred in the house
was untrue. Evidence was tendered by the
prosecution, and, although objected to by
counsel for the appellant, was admitted, to
shew that after leaving the prosecutrix's house
the appellant went to another house about
three miles distant, gained access to a woman's
bedroom by getting down the chimney, and
had connection with that woman with her
consent. The appellant was convicted : — Held,
that the evidence which had been objected to
was improperly admitted, and as the Court was
unable to say that the jury might not have
been influenced by that evidence, the con-
viction nmst be quashed. Rex v. Rodleij,
82 L. J. K.B. 1070; [1913] 3 K.B. 468;
109 L. T. 476 : 77 J. P. 465 : 23 Cox C.C 574;
58 S. J. 51; 29 T. L. R. 700— CCA.
Other Criminal Acts.] — At the trial on
indictment of a jirisoncr the nrosecution may,
in order to prove the quality of the act charged
in the iiulictment, give evidence of subsequent
criminal acts by the prisoner, and the facts
and circumstances surrounding the same,
455
CRIMINAL LAW.
456
other than that covered by the indictment,
when a prima facie case in law has been
established against the prisoner of the act
charged in the indictment. Rex v. Smith,
84 L. J. K.B. 2153 ; 59 S. J. 704 ; 31 T. L. E.
617— CCA.
Forging and Uttering Deed — Evidence of
other Forged Deeds at a Later Date.] — On
the trial of a charge for forging and uttering
a forged deed, evidence was admitted as to
other deeds forged by the appellant which were
dealt with by him at a date subsequent to the
charge preferred : — Held, that evidence as to
the other forged deeds was connected with the
principal charge ; and that the evidence was
admissible to prove guilty knowledge on the
part of the appellant, whether relating to
previous or subsequent transactions. Rex v.
Mason, 111 L. T. 336; 78 J. P. 389;
24 Cox CC 305— CCA.
Evidence of Offence other than that Charged
— Corroborative Evidence.] ^ — In a prosecution
commenced on May 7, 1913, the appellant was
indicted, under the Criminal Law Amendment
Act, 1885, for having unlawful carnal know-
ledge of a girl, over the age of thirteen and
under the age of sixteen years, in the months
of November and December, 1912. By the
conjoint effect of section 5, sub-section 1 of the
Act and section 27 of the Prevention of Cruelty
to Children Act, 1904, no prosecution for the
offence can be commenced more than six
months after the commission thereof. Evi-
dence was given by the girl that the appellant
had sexual intercourse with her in December,
1912, and that in the previous November she
was two months gone with child. Further
evidence, consisting of her testimony that in
April, 1913, when the appellant discovered
that she was pregnant, he and his wife per-
suaded her to throw all the blame on a farm
labourer who had been in the appellant's
employment prior to November 5, 1912, was
admitted, and also the testimony of other
persons to the effect that the appellant about
the same time bribed this man to leave the
country. This further evidence was objected
to, first, on the ground that it was irrelevant to
the issue and tended to shew that the appellant
was guilty of offences other than that charged
in the indictment; and secondly, because by
the statutes a prosecution could not be com-
menced more than six months after the
commission of the offence, and such evidence
would shew that other offences under the Act
of 1885 had been committed prior to the period
of limitation. Very slight evidence, other
than the above, corroborating the girl's story,
was given at the trial : — Held, on appeal, that
the further evidence was properly admitted.
First, it was relevant to the issue as being
corroborative of the girl's account of what took
place in December, 1912, according to the
general principle that the relationship between
the appellant and the girl prior to the period
of limitation would be likely to continue. Such
evidence was admissible not because it tended
to shew that other offences had been com-
mitted, but notwithstanding that in the
particular case it might happen to do bo.
Secondly, the provision in the statutes as to
time did not affect the admissibility of evi-
dence ; it merely limited the time for launching
a prosecution. Rex v. Shellaker, 83 L. J.
K.B. 413; [1914] 1 K.B. 414; 110 L. T. 351;
78 J. P. 159 ; 24 Cox CC 86 ; 30 T. L. E. 194
n n j^
Reg. V. Ollis (69 L. J. Q.B. 918; [1900]
2 Q.B. 758) and Director of Public Prosecutions
or Rex v. Ball (No. 2) (80 L. J. K.B. 691;
[1911] A.C 47) followed. Reg. v. Beighton
(18 Cox CC 535) overruled. lb.
9. Previous Convictions.
Evidence of Previous Conviction Involving
Fraud — Receiving Stolen Goods — Guilty Knov\r-
ledge — " Stolen property has been found in his
possession."] — Upon the trial of a prisoner for
receiving stolen property, evidence having
been given that the stolen property was
found in the possession of pawnbrokers
with whom the prisoner had pawned them,
evidence was admitted, with a view of shewing
guilty knowledge, that the prisoner had been
convicted within the preceding five years of
an offence involving fraud or dishonesty : —
Held, that the evidence of such previous con-
viction was admissible under section 19 of the
Prevention of Crimes Act, 1871. Rex v.
Rowland, 79 L. J. K.B. 327; [1910] 1 K.B.
458 ; 102 L. T. 112 ; 74 J. P. 144 ; 22 Cox CC.
273; 26 T. L. E. 202— CCA.
Police Court Proceedings — Reports in
Nevsrspapers.] — Where evidence of previous
convictions is given at a police Court in
a case which is committed for trial, such
evidence ought not to be referred to by a
newspaper in its report of the proceedings.
Rex V. Sanderson, 31 T. L. E. 447— CCA.
10. Proof and Effect of Convictions.
No Certified Copy of Conviction.] — A
superintendent of police deposed that he
was present at assizes and that the appellant
had been convicted on a certain charge. No
certified copy of the conviction under section 13
of the Evidence Act, 1851, was produced : —
Held, that the conviction was sufficiently
proved. Mash v. Darley, 83 L. J. K.B. 78;
[1914] 1 K.B. 1; 109\L. T. 873; 78 J. P. 4;
23 Cox CC. 661— D. Affirmed on other
grounds ante, Bastardy.
Effect of Conviction as Evidence — Res inter
Alios Acta.] — A certified copy of the convic-
tion is admissible evidence not merely as
proving the conviction itself, but also as
presumptive proof of the commission of the
crime in question. Leyman v. Latimer
(47 L. J. Q.B. 470; 3 Ex. D. 352), as followed
in Yates v. Kyffin-Taylor ([1899] W. N. 141),
doubted. Crippen, In the goods of, 80 L. J. P.
47; [1911] P. 108; 104 L. T. 224; 55 S. J.
273; 27 T. L. E. 258— Evans, P.
11. Documents.
See also Vol. IV. 1881, 2206.
Inadmissible Document — Suggestion as to
Contents.] — Counsel for the prosecution has no
457
CEIMINAL LAW
458
right, directly or indirectly, to suggest in the
hearing of the jury what the contents of an
inadmissible document are, but the Court will
not, on the ground of such a suggestion, inter-
fere with a verdict of "Guilty," unless the
jury have been thereby influenced to give a
verdict which otherwise they would not have
given. Rex v. Seham Yousry, 84 L. J. K.B.
1272; 112 L. T. 311; 31 T. L. K. 27— CCA.
VI. VERDICT.
See also Vol. IV. 1891, 22G6.
Conviction as Accessory before Fact to a
Burglary and of Receiving — Inconsistency.] —
The appellant was convicted of being accessory
before the fact to a burglary and of receiving
the stolen goods : — Held, following Reg. v.
Hughes (Bell CC 242), that there was no
inconsistency in the verdict. Rex v. Good-
speed, 75 J. P. 232; 55 S. J. 273; 27 T. L. R.
255— CCA.
Riot — Conviction for Assault.] — The appel-
lant and ten others were indicted for that they
" unlawfully, riotously, and routously did
assemble and gather together to disturb the
peace of . . . the King, and being so assem-
bled ... in and upon (A. B.) . . . then and
there being, unlawfully, riotously, and
routously did make and assault," &c. : — Held,
that on this indictment the jury could convict
the appellant of an assault. Statement of
the law in Archbold's Criminal Pleading
(24th ed.), at p. 228, that " at common law
a defendant may be convicted of a less
aggravated felony or misdemeanour on an
indictment charging a felony or misdemeanour
of greater aggravation, provided that the
indictment contains words apt to include
both offences," approved. Rex v. O'Brien,
104 L. T. 113; 75 J. P. 192; 22 Cox CC 374;
55 S. J. 219; 27 T. L. R. 204— CCA.
Special Verdict — Effect of — Sending Letter
Threatening to Murder.] — The appellant was
indicted under section 16 of the Offences
Against the Person Act. 1861, for sending
a letter to Mr. Ramsay MacDonald, M.P.,
threatening to murder one Alfred Reed. At
the trial the Judge left the following ques-
tions to the jury : " (1) Is defendant guilty
or not guilty of maliciously sending the letter
threatening to murder Alfred Reed? (2) Did
he intend to miirder Reed, or was the threat
' bluff ' and made in order to call attention
to his grievances ? (3) Did the defendant
send the letter of June 15 with the intention
of so alarming Mr. Ramsay MacDonald as to
the safety of Reed's life that Mr. MacDonald
and his friends would support defendant's
claims against the Home Secretary and the
police authorities?" The jury did not reply
directly to the questions, but returned the
following verdict : " We are of opinion that
defendant wrote the letter of June 15 with
the object of pressing Mr. Ramsay Mac-
Donald and his friends to support his claims
against the Home Secretary and the police
authorities. We are further of opinion that
he did not intend to murder Reed, and that
the threat was ' bluff ' and made in order to
call attention to his grievances." The Judge
considered this finding equivalent to a verdict
of guilty, and ordered a verdict of guilty to
be entered : — Held, that the Judge was right
in treating the verdict as one of guilty. Rex
V. Syme, 75 J. P. 535; 55 S. J. 704;
27 T. L. R. 56^-C.CA.
Reconsideration.] — The appellant was in-
dicted for attempting to commit suicide. At
the trial the jury returned the following ver-
dict : " Guilty, but of unconscious mind."
The Judge thereupon asked them to recon-
sider their verdict, and then brought to their
attention certain evidence which had been
given and which shewed that the appellant
knew what he was doing. The jury havinc
reconsidered the matter, found the appellant
guilty : — Held, that the jury not having in-
sisted upon their first verdict being received,
the Judge was entitled to ask them to recon-
sider it, and that the verdict of Guilty was
rightly recorded. Rex v. Crisp, 76 J. P. 304;
28 T. L. R. 296— CCA.
VII. JUDGMENT AND PUNISHMENT.
See also Vol. IV. 1901, 2206.
1. Sentence of Hard Labour.
Common Law Misdemeanour.] — Where a
prisoner is convicted of a comman law mis-
demeanour, he cannot be sentenced to a term
of imprisonment with hard labour. Rex v.
Davidson, 100 L. T. 623; 22 Cox CC. 99;
25 T. L. R. 352— CCA.
2. Sentence of Whipping.
Child — Power of Court to Order Whipping.]
— The power of the Court under section 4 of
the Larceny Act, 1861, to order a male person
under sixteen years of age convicted under
that section to be whipped as well as
imprisoned is not taken away in the case
where such person is a child within the
meaning of the Children Act, 1908, and has
been committed to custody in a place of deten-
tion under section 106 of the Act in lieu of
being sentenced to imprisonment. Rex V.
Lydford, 83 L. J. K.B. 589; [1914] 2 K.B.
378 ; 110 L. T. 781 : 78 J. P. 213 : 24 Cox CC.
142; 58 S. J. 363; 30 T. L. R. 349— CCA.
Person to Execute Sentence.] — The proper
person to execute the sentence is the sheriff
or the deputy he appoints for that purpose. 76.
Carnal Knowledge of Girl under Thirteen —
" Offender whose age does not exceed sixteen
years."] — A person who at the time of com-
mitting the offence of carnally knowing a
girl under the age of thirteen is under the
age of sixteen, but who at the time he appears
in Court to answer the indictment charging
him with the offence is over the age of sixteen,
is not a person " whose age does not exceed
sixteen years " within the meaning of the
proviso to section 4 of the Criminal Law
Amendment Act, 1885. In such a case, there-
fore, the Court has no power under that
proviso to order the offender to be whipped.
459
CEIMINAL LAW.
460
Rex V. Cawthron, 82 L. J. K.B. 981; [1913]
3 K.B. 168; 109 L. T. 412; 77 J. P. 460;
23 Cox C.C. 548; 29 T. L. E. 600— C.A.
3. Eecommendation for Expulsion.
Alien— Discretion of Judge.]— In 1893 the
appellant, who was an alien, was convicted of
administering a drug with intent to rob, and
in 1905 he was convicted of conspiracy. In
1913, on a charge of indecent assault, the
appellant pleaded guilty to a common assault,
and the Judge accept this plea and passed a
sentence of imprisonment and recommended
the appellant for expulsion under the Aliens
Act, 1905 : — Held, that the question of
recommendation for expulsion was a matter
for the Judge's discretion, and that on the
facts his decision to make such recommenda-
tion ought not to be reversed. Rex v.
Josephson, 110 L. T. 512; 24 Cox C.C. 128;
30 T. L. E. 243— CCA.
Circumstances in which the Court quashed
so much of the sentence on the apipellant as
recommended her expulsion from this country.
Rex V. Fine, 77 J. P. 79; 29 T. L. E. 61—
CCA.
4. Length of Sentence.
Conviction for one offence — Admission by
Prisoner of Different Offence for which he is
not being Tried — Sentence for Offence on
which Convicted — Consideration in Passing
Sentence of Admission of other Offence.] —
Where a prisoner on being found guilty for one
offence admits that he has committed another
offence for which he has not yet been tried, and
asks the Court to consider that other offence in
fixing his sentence, the Court may properly
take that other offence into consideration, if it
is of the same nature as that for which the
prisoner has been found guilty, whether there
has been a committal in respect of that other
offence or not. If there has been a committal
the Court should ascertain whether the authori-
ties prosecuting for the other offence are willing
that it should be taken into consideration. If
they are unwilling, the Court should not take
the other offence into consideration as a matter
of course. If the other offence is of a different
nature, and has been committed in another
county, the Court should not take the other
offence into consideration without the consent
of the authorities prosecuting the prisoner in
respect of it, and without considering whether
the public interest does not require a separate
investigation. Rex v. McLean, 80 L. J. K.B.
309; [1911] 1 K.B. 332; 103 L. T. 911;
75 J. P. 127; 22 Cox C.C 362; 27 T. L. E.
138— CCA.
Remanet of Previous Penal Servitude —
Licence Forfeited by Conviction for Fresh
Offence — Sentence to Commence after Remanet
of Previous Sentence — Sentence to Run Con-
currently with Unexpired Term of Previous
Sentence — Jurisdiction.] — Where a person has
been convicted and sentenced to a term of
penal servitude, but has been liberated during
the currency of such sentence on licence under
the Penal Servitude Acts, and the licence is
forfeited or revoked through the licence holder
being subsequently convicted for a new offence.
the Court before which the licence holder is
tried for the new offence has no power to order
that the sentence for the new offence shall
commence after or run concurrently with the
unexpired term of the previous sentence ; it
has no power to interfere at all with the
remanet of the previous sentence, and can only
impose a sentence in respect of such new
offence, inasmuch as under section 9 of the
Penal Servitude Act, 1864, the person whose
licence is forfeited or revoked must, after
undergoing the punishment to which he may
be sentenced for the new offence, further
undergo a term of penal servitude equal to the
unexpired term of penal servitude at the time
the licence was granted. Rex v. Smith ;
Rex V. Wilson, 79 L. J. K.B. 4; [1909]
2 K.B. 756; 101 L. T. 126; 73 J. P. 407;
22 Cox C.C 151— CCA.
Prisoner Bound over in Respect of New
Offence — "Conviction" — Effect on Unexpired
Term of Previous Sentence — Validity of
Circular Issued by Prison Commissioners.] —
A convict on licence who, in respect of a new
offence conunitted by him, is found guilty by a
jury or pleads guilty and is bound over to come
up for judgment if called upon, has been
" convicted " of that offence within sections 4
and 9 of the Penal Servitude Act, 1864, and his
licence is thereby forfeited and he is bound to
serve the unexpired term of his previous
sentence. Rex v. Rabjohns, 82 L. J. K.B. 994 ;
[1913] 3 K.B. 171; 109 L. T. 414; 77 J. P.
435 ; 23 Cox C.C. 553 ; 57 S. J. 665 ; 29 T. L. E.
614— CCA.
The circular L. P. 15, 1712, dated
November 8, 1912, issued by the Prison Com-
missioners to governors of prisons, to the
contrary effect, is not justified by the provisions
of the statutes regulating licences to convicts.
lb.
Considerations as to.] — While the offence
of larceny for which a prisoner is indicted may
be a very bad one notwithstanding that the
sum stolen is small — as, for instance, where
the prisoner has obtained small amounts from
a number of different persons — nevertheless, in
dealing with one particular case of larceny, the
small amount stolen may properly be taken
into consideration on the question of sentence.
W^here there is evidence that a prisoner has
shewn willingness to work and persons have
been willing to employ him, it may not be
advisable to inflict a severe sentence upon him
merely because he has had many previous
convictions. Rex v. Myland, 27 T. L. E. 256
—CCA.
The prevalence of a particular crime in a
particular neighbourhood, and the necessity for
severe measures for its repression, are matters
which may properly be taken into consideration
in passing sentence. Rex v. Green, 76 J P.
351; 28 T. L. E. 380— CCA.
Commencement of Sentence.] — Whether a
sentence can be made to antedate the first day
of sessions or assizes, qumre. Rex v. Davies,
28 T. L. E. 431— CCA.
The Court of Criminal Appeal, on dismissing
an application for leave to appeal, may, not-
withstanding that the prosecution is not repre-
461
CKIMINAL LAW.
462
Bented, order that the sentence imposed on the
applicant shall run from the date of conviction.
Rex V. Brownhill. 29 T. L. R. 156— CCA.
Date from which Sentence should Run.] —
Where an application for leave to appeal is
deferred to suit the convenience of counsel
and is afterwards heard and dismissed, the
Court will not order the sentence to date from
the conviction. Rex v. Park; Rex v. Hill,
32 T. L. R. 157- CCA.
PreYentive Detention.] — A sentence of the
maximum term of preventive detention is not
desirable except in very bad cases. Rex v.
Moran, 75 J. P. 110— CCA.
Jurisdiction — Crime Committed between
Passing and Coming into Operation of Act —
"Committed after the passing of this Act."]
—The Prevention of Crime Act, 1908, applies
to crimes committed after the date of its
passing but before the date fixed for its coming
into operation, so far as regards the power
of the Court of trial to pass a sentence of pre-
ventive detention. Rex v. Smith ; Rex v.
Weston, 79 L. J. K.B. 1; [1910] 1 K.B. 17;
101 L. T. 816; 74 J. P. 13; 22 Cox CC 219;
64 S. J. 137 ; 26 T. L. R. 23— CCA.
Power of Court to Impose more Severe Sen-
tence in Order to Give Sentence of Preventive
Detention.] — The length of sentence imposed
upon a prisoner should depend upon the nature
of the offence of which he has been convicted
or to which he has pleaded guilty, and the
Court cannot impose a more severe sentence
than the offence merits in order to give itself
the power to pass a sentence of preventive
detention. Rex v. Jones, 75 J. P. 125;
27 T. L. R. 108— CCA.
Excessive Sentence — Accused under Sixteen
Years of Age — Sentence of Four Months' Im-
prisonment.]— Sentence of four months' im-
prisonment imposed upon the appellant, a lad
under sixteen years of age, quashed on the
ground that under the Children Act, 1908,
detention could not exceed one month. Rex
\. Bradford, 105 L. T. 752; 76 J. P. 46;
28 T. L. R. 26; 22 Cox CC. 627— CCA.
Incorrigible Rogue.] — Where a person is
convicted as an incorrigible rogue for begging
and there are no aggravating circumstances,
the maximum sentence of twelve months'
imprisonment should not be imposed. Rex v.
Cooper, 75 J. P. 125— CCA.
5. Alteration of Sentence.
Reduction — Application for Leave to Appeal
against Sentence — Absence of Prosecution.] —
If on an application for leave to ain)eal against
a sentence the Court of Criminal Appeal is of
opinion that the sentence ought to be varied
to a slight extent, and the alteration is one
against which nothing could be urged by the
prosecution if present, the Court will deal with
the question of such alteration on the applica-
tion for leave to appeal, notwithstanding that
the prosecution are not represented at such
application. Rex v. Jowsey, 84 L. J. K.B.
2118; 31 T. L. R. 632— CCA.
Reduction.] — Sentence of three years" penal
servitude passed upon the appellant for man-
slaughter caused by the negligent driving of
a motor car reduced to one of twelve months'
imprisonment with hard labour. Rex V.
Stubbs, 29 T. L. R. 421— CCA.
Sentence of five years' penal servitude passed
upon the appellant for warehouse breaking
reduced to one of eighteen months' imprison-
ment with hard labour, on the ground that the
case was an isolated one and was the first con-
viction of the appellant. Rex v. Trewholm,
77 J. P. 344; 29 T. L. R. 530— CCA.
Sentence of two years' imprisonment under
the modified Borstal system reduced to one of
four months' imprisonment, on the ground
that the chairman of quarter sessions, in
imposing the sentence of two years, was under
the erroneous impression that if the authorities
saw fit the prisoner could be released on
licence in the sanie wav as under the Borstal
system. Rex v. Lee, 30 T. L. R. 1— CCA.
Where a person sentenced as an incorrigible
rogue had not been guilty of any dishonesty or
violence, but had been guilty only of constantly
begging, the Court reduced his sentence from
one of eight to one of three months" imprison-
ment. Rex V. Harrison, 30 T. L. R. 1 —
CCA.
Sentence of ten years" penal servitude
reduced to six years' penal servitude on the
ground that a statement by the police as to
the prisoner's antecedents was taken into
consideration, and there was nothing to shew
that the prisoner admitted the accuracy of
such statement. Rex v. Brooks, 29 T. L. R.
152— CCA.
Sentence of five years' penal servitude
imposed upon the appellant for receiving
reduced to one of three years' penal servitude,
on the ground that it did not appear that the
appellant was habitually a receiver or that
he kept any place for the deposit of stolen
property. Rex v. Knight, 28 T. L. R. 481
CCA.
Held, that on the form of the verdict the
conviction of the appellant on the counts of
the indictment charging him with shooting
with intent to murder should be quashed, but
that his conviction on the count charging
wounding with intent to do grievous bodily
harm should stand. Held, further, that the
sentence on the appellant should be reduced
to one of three vears' penal servitude. Rex
V. Connor, 77 J." P. 247; 29 T. L. R. 212—
CCA.
The appellant was sentenced to three years'
penal servitude for an offence committed by
him. When charged with that offence he
desired that certain other offences which he
had committed should all be taken into con-
sideration. This was done except as to one
charge, which, at the request of the police,
was not then dealt with. In respect of this
latter charge the appellant was at the subse-
quent sessions sentenced to four years' penal
servitude to run concurrently with and to date
from the commencement of the sentence of
three years' penal servitude imposed at the
previous sessions. The Court reduced the
463
CEIMINAL LAW.
464
sentence of four years' penal servitude to one
of one day's imprisonment, and expressed dis-
approval of the practice adopted by the police
in holding over the one charge against the
appellant. Whether a sentence can be made
to antedate the first day of sessions or assizes,
qucBre. Rex v. Davies, 28 T. L. E. 431—
CCA.
Concurrent Sentences.] — The appellant
was convicted of forgery and false pretences,
and was sentenced to seven years' penal servi-
tude and twelve months' hard labour, the two
sentences to run concurrently : — Held, that
the sentence of twelve months' hard labour
should be reduced to a nominal sentence of one
day, as it was doubtful whether it was present
to the mind of the Judge that the effect of the
sentences imposed would be that the appel-
lant would have to spend a longer period in
hard labour at the commencement of his
sentence than would otherwise be the case,
and would not be able to earn as many remis-
sion marks. Rer v. Bruce, 75 J. P. Ill;
27 T. L. K. 51— CCA.
PreventiYC Detention Commuted by Home
Secretary to Imprisonment with Hard Labour,]
— Under section 4, sub-section 3 of the
Criminal Appeal Act, 1907, the Court of Appeal
can only deal with the sentence passed upon
a prisoner at his trial ; it has no power to deal
with the commutation by the Home Secretary,
under section 7 of the Prevention of Crime
Act, 1908, of the unexpired residue of a term
of preventive detention into a term of impri-
sonment. Rex V. Keating, 103 L. T. 322;
74 J. P. 452; 22 Cox CC 343; 26 T. L. E.
686— CCA.
Power of Court to Pass Sentence in Substi-
tution— " Warranted in law by the verdict."]
— On an appeal against a sentence passed as
the result of a plea of guilty, the Court of
Criminal Appeal have power, under section 4,
sub-section 3 of the Criminal Appeal Act, 1907,
if they quash such sentence, to pass such other
sentence, appropriate to the offence charged,
and in substitution therefor, as they think
ought to have been passed. Rex v. Davidson
(infra) not followed. Rex v. Ettridge,
78 L. J. K.B. 479; [1909] 2 K.B. 24;
100 L. T. 624; 73 J. P. 253; 53 S. J. 401;
22 Cox CC. 101; 25 T. L. E. 391— CCA.
Where a prisoner appeals against a sentence
passed upon him at the trial in respect of an
offence to which he has pleaded guilty, the
Court of Criminal Appeal has no power, if it
is necessary to set that sentence aside, to sub-
stitute another in its place under section 4,
sub-section 3 of the Criminal Appeal Act, 1907.
Rex V. Davidson, 100 L. T. 623; 22 Cox
CC. 99; 25 T. L. E. 352— CCA.
Sentence of three years' penal servitude
reduced to twenty-one months' imprisonment
with hard labour on the ground that it was
undesirable that the sentence of penal servi-
tude should run concurrently with a sentence
of imprisonment which was being served by
the appellant at the time the sentence of penal
servitude was imposed. Rex v. Hemming,
28 T. L. E. 402— CCA.
Murder — Conviction — Appeal — Insanity
— Order for Detention of Appellant as a
Criminal Lunatic] — The appellant was con-
victed of murder and sentenced to death. He
appealed against the conviction. The Court
of Criminal Appeal, being of opinion that the
evidence shewed that at the time of commit-
ting the act charged against him he was
insane, — Held, that the proper course for the
Court to pursue was that provided by section 5,
sub-section 4 of the Criminal Appeal Act, 1907
— namely, to quash the sentence passed at the
trial, and to order the appellant to be kept in
custody as a criminal lunatic under the Trial
of Lunatics Act. 1883. Rex v. Gilbert,
84 L. J. K.B. 1424; 112 L. T. 479— CCA.
Alternative Defences — Direction to Jury
— Evidence of the Prisoner — Substitution by
the Court of Verdict of Manslaughter.] — The
appellant was tried and convicted on a charge
of wilful murder. At the trial the defence
mainly relied upon was that of accident, but
the appellant's counsel did not relinquish the
defence of manslaughter in the event of his
not being able, by his main defence, to secure
an acquittal. The Judge directed the jury
that they must either acquit the appellant on
the ground of accident or convict him of
murder : — Held, on appeal, that, there being
evidence on which the jury might have found
the appellant guilty of manslaughter, and the
defence of manslaughter not having been left
to them, the conviction must be quashed. In
these circumstances the Court, in exercise of
the powers conferred on it under section 5,
sub-section 2 of the Criminal Appeal Act, 1907,
ordered a verdict of manslaughter to be
entered, and sentenced the appellant to four
years' penal servitude. Rex v. Hopper,
84 L. J. K.B. 1371; [1915] 2 K.B. 431;
113 L. T. 381; 79 J. P. 335; 59 S. J. 478;
31 T. L. E. 360— CCA.
Whatever line of defence is taken by counsel
at a trial, it is for the Judge to leave to the
jury all the questions which appear to him
to arise upon the evidence, whether they have
been raised by counsel or not. lb.
The Court must not exclude from considera-
tion any view of the facts of a case other
than that presented by the prisoner in giving
evidence. 7b.
Increase.] — The Court increased the
sentence of twelve years' penal servitude
passed upon the appellant at the trial for
attempted murder, to fifteen years' penal servi-
tude. Rex V. Simpson, 75 j". P. 56— CCA.
Vin. APPEAL.
1. When Appeal Lies.
See also Vol. IV. 2212.
Special Verdict of Jury — " Guilty, but in-
sane " — "Conviction."] — Where a jury have
returned a special verdict under section 2 of
the Trial of Lunatics Act, 1883, that the
accused was guilty of the act or omission
charged against him in the indictment, but
was insane at the time when he did the act
465
CRIMINAL LAW.
466
or made the omission, and the Court has
ordered the accused to be kept in custody as a
criminal lunatic, such person has been " con-
victed " within the meaning of section 3 of
the Criminal Appeal Act, 1907, and may there-
fore appeal against his conviction upon the
grounds set out in that section. Rex v.
Ireland, 79 L. J. K.B. 338; [1910] 1 K.B.
654; 102 L. T. 608; 74 J. P. 206; 22 Cox
C.C. 322; 54 S. J. 543; 26 T. L. E. 267—
CCA.
Where the jury, under section 2, sub-
section 1 of the Trial of Lunatics Act, 1883,
have returned a verdict that the prisoner is
guilty of the act charged, but was insane at
the time he committed it, an appeal lies to
the Court of Criminal Appeal under section 3
of the Criminal Appeal Act, 1907. Rex v.
Ireland (79 L. J. K.B. 338; [1910] 1 K.B.
654) approved. Rex v. Machardjj, 80 L. J.
K.B. 1215; [1911] 2 K.B. 1144; 105 L. T.
556; 76 J. P. 6 ; 55 S. J. 754; 28 T. L. E. 2;
22 Cox C.C. 614— CCA.
But the appeal lies only against that part
of the verdict which finds the prisoner guilty
of the act charged, and not against that part
which finds that he was insane. The order
for the prisoner's detention as a criminal
lunatic until His Majesty's pleasure shall be
known is no part of the conviction. lb.
A person charged with a criminal offence
against whom a special verdict of " Guilty,
but insane," has been found under the Trial
of Lunatics Act, 1883, has no right of appeal
to the Court of Criminal Appeal against that
part of the verdict which finds him to have
been insane at the time of doing the act.
Felstead v. Director of Public Prosecutions,
83 L. J. K.B. 1132; [1914] A.C. 534;
111 L. T. 218 ; 78 J. P. 313 ; 24 Cox C.C 243 ;
58 S. J. 534; 30 T. L. E. 469— H.L. (E.)
Judgment of the Court of Criminal Appeal
(30 T. L. E. 143; 9 Cr. App. Eep. 227)
affirmed. Ih.
Case Stated. "I — A person charged with a
criminal offence against whom a special verdict
of " Guilty, but insane," has been found under
the Trial of Lunatics Act, 1883, has no right
of appeal to the Court of Criminal Appeal
against that part of the verdict which finds
him to have been insane at the time of doing
the act, whether he proceeds on a Case stated
under the Crown Cases Act, 1848, or under
the procedure set up by the Criminal Appeal
Act, 1907. Felstead V. Director of Public
Prosecutions or Regem. (83 L. J. K.B. 1132 ;
[1914] A.C. 534) applied. Rex v. Taylor,
84 L. J. K.B. 1671: [1915] 2 K.B. 709;
113 L. T. 513; 79 J. P. 439; 59 S. J. 530;
31 T. L. E. 449— CCA.
Person Found Insane and Unfit to Plead —
"Convicted on indictment."! — A person who
is indicted, but who is found by the jury to be
insane and unfit to plead, has not been " con-
victed on indictment " within section 3 of the
Criminal Appeal Act, 1907. Therefore no
appeal to the Court of Criminal Appeal lies
ir such a case. Rex v. Larkins, 105 L. T.
3R4; 75 J. P. 320; 22 Cox C.C. 598; 55 S. J.
501 ; 27 T. L. E. 438— CCA.
Judge's Bu\ing.]—Semble, no appeal lies to
the Court of Criminal Appeal from the ruling
of the Judge at the trial allowing a witness
to be treated as a hostile witness. Rex v.
Williams, 77 J. P. 240; 29 T. L. E. 188—
CCA.
Discharge of Jury by Judge.]— The Court
of Criminal Appeal has no power to review the
decision of the Judge at the trial of a prisoner
that a necessity has arisen for discharging the
jury without giving a verdict and adjourning
the case to be heard before another jury. Such
a decision is entirely within the discretion of
the Judge, and even if the discretion has been
wrongly exercised, no objection can be taken
in respect thereof at the second trial. Reg. v.
Charlesworth (31 L. J. M.C 25; 1 B. & S. 460)
and Winsor v. Reg. (35 L. J. M.C. 121. 161;
L. E. 1 Q.B. 289, 390) followed. Rex v.
Letvis, 78 L. J. K.B. 722; 100 L. T. 976;
73 J. P. 346; 22 Cox C.C. 141; 25 T. L. E.
582— CCA.
Reference by Home Secretary to Court —
Extent of Appeal.] — Prisoners who have peti-
tioned the Home Secretary against their
sentence, and whose petitions are referred to
the Court of Criminal Appeal under section 19
of the Criminal Appeal Act, 1907, must be
deemed to be appellants in respect of their
sentence onlv. Rex v. Smith; Rex v. Wilson,
79 L. J. K.B. 4; [1909] 2 K.B. 756; 101 L. T.
126; 73 J. P. 407; 22 Cox C.C. 151— CCA.
Sentence of Penal Servitude and PreventiYe
Detention — Appeal against Both Sentences —
Leave to Appeal against Sentence of Penal
Servitude — "Sentence" — Sentence of Preven-
tiYe Detention.] — Where a prisoner appeals
against a sentence of preventive detention and
also appeals against the preceding sentence of
penal servitude, the latter appeal will be
treated as if the leave to appeal required by
section 3 (c) of the Criminal Appeal Act, 1907,
had been granted. Rex v. Smith ; Rex v.
Weston, 79 L. J. K.B. 1; [1910] 1 K.B. 17;
101 L. T. 816; 74 J. P. 13; 22 Cox C.C 219;
54 S. J. 137; 26 T. L. E. 23— CCA.
2. Legal Aid.
See also Vol. IV. 2213.
On Appeal to House of Lords.] — The Court
of Criminal Appeal, sitting as a single Judge,
has power to grant an appellant legal aid
under section 10 of the Criminal Appeal Act,
1907, on an appeal from a decision of the
Court of Criminal Appeal to the House of
Lords, where the Attorney-General has
granted his certificate under section 1, sub-
section 6 of that Act. Rex v. Leach, 76 J. P.
246; 56 S. J. 311— CCA.
3. Hearing.
See also Vol. IV. 2213.
Shorthand Notes — Transcript — Application
for, by Appellant whose Appeal has been Dis-
missed.^ — Having regard to rule 39<' of the
Criminal Appeal Eules, 1908, the Court of
Criminal Appeal has no power subsequently to
467
CRIMINAL LAW.
468
grant to a person who had appealed to the
Court, and whose appeal was dismissed, a copy
of the transcript of the shorthand notes of the
proceedings at the trial to enable such person
to petition the Home Secretary. Weir, Ex
parte, 108 L. T. 350; 77 J. P. 56; 23 Cox
C.C. 326— CCA.
Comparison of Admitted Handwriting with
the Notice of Appeal.] — On a question of dis-
puted handwriting the Court will compare a
document alleged to be written by the appel-
lant with tlie notice of appeal written and
signed by him. Rex v. Tothj, 111 L. T. 167;
24 Cox C.C. 227— CCA.
Habitual Criminal — Review.] — In an appeal
to the Court of Criminal Appeal against a
conviction for being an habitual criminal, it
is the duty of the Court to consider the case
on its merits, and not merely to consider
whether there was evidence upon which the
jury could reasonably return the verdict
appealed against. Heron v. Lord Advocate,
[1914] S. C (J.) 7— Ct. of Just.
Observations as to the evidence which may
legitimately be taken into consideration by a
jury in dealing with such a charge, and by
the Court of Criminal Appeal in disposing of
such an appeal. 76.
Per Lord Mackenzie : The Judge who pre-
sided at the trial should not sit as a member
of the Court of Criminal Appeal. lb.
4. Fresh Evidence.
See also Vol. IV. 2213.
J ury man — Alleged M isconduct — Application
to Call Evidence.] — On an appeal against a
conviction the appellant applied for leave to
call evidence that one of the jury had stated
on the evening of the first day of the trial
that all the jury were friendly with the police,
and it made no difference what the appellant
said. In the grounds of appeal there was
nothing as to the misconduct of a juryman : —
Held, that the Court ought not to accede to
the application. Rex v. Syme, 30 T. L. E.
691— CCA.
5. Grounds of Appeal.
See also Vol. IV. 2214.
Improper Admission of Evidence.] — Where
evidence has lieen improperly admitted, an
appeal will not be dismissed under section 4,
sub-section 1 of the Criminal Appeal Act, 1907,
on the ground " that no substantial mis-
carriage of justice has actually occurred,"
unless the Court feels certain that the jury
would have come to the same conclusion if
the evidence had been rejected. Rex v.
Christie, 109 L. T. 746; 78 J. P. 141;
30 T. L. R. 41— CCA.
Hearsay Evidence Wrongfully Admitted.]
— Conviction for burglary quashed on the
ground that the chairman of quarter sessions
had admitted hearsay evidence which refuted
an alibi set up by the prisoner. Rex v.
Campbell, 77 J. P. 95— CCA.
The Court quashed the conviction of the
appellant for larceny on the ground of the
improper admission of hearsay evidence, and
also on the ground that the Judge in dealing
with the defence of an alibi set up, said,
" I do not wish to bias you in any way what-
ever, but here is a man who has set up an
alibi, which is no shadow of an alibi from
anv possible point of view." Rex v. Ruffino,
76"J. P. 49— CCA.
Irregularity — Reference to Inadmissible
Documents.] — The fact that, m the course of
the trial, counsel for the prosecution referred
to the contents of certain documents which
were not admissible in evidence afforded no
ground for quashing the conviction, as the
irregularity could not, in the circumstances of
the case, have influenced the verdict of the
jury. Rex v. Seham Yousry, 84 L. J.
K.B. 1272; 112 L. T. 311; 31 T. L. R. 27—
CCA.
Jury Inadvertently Informed of Previous
Conviction.] — Conviction of the appellant for
burglary quashed where the Judge had in-
advertently caused him to admit that he had
been previously convicted. Rex v. Heming-
way, 77 J. P. 15; 29 T. L. R. 13— CCA.
Previous Conviction Wrongly Admitted —
Misdirection.] — Conviction of the appellant
quashed where evidence of a previous convic-
tion was wrongly admitted. Rex v. Curtis,
29 T. L. E. 512— CCA.
Insufficient Evidence.] — The appellant was
an engine driver and was obliged to be much
away from home, and his wife was addicted
to drink. Their daughter took to going about
with women of bad character and the appellant
reproved her, but eventually she was seduced.
The appellant and his wife were both charged
under section 17 of the Children Act, 1908,
as amended by section 1 of the Children Act
(1908) Amendment Act, 1910. The jury found
that the appellant was guilty of negligence
and that his wife was guilty of criminal
negligence : — Held, that the conviction of the
appellant must be quashed, as there was not
enough evidence to support it and as the jury
did not by their verdict intend to find him
guilty of the offence charged. Rex v. Chainey,
30 T. L. R. 51— CCA.
Conviction of the appellant for receiving
quashed where the only evidence suggested
to connect him with the crime was that the
stolen property had been found in a house
which had been in his occupation up to a week
previous to the property being taken there,
and that he had some months before taken the
tenancy of this house in his wife's name. Rex
V. Baity, 76 J. P. 388; 28 T. L. R. 485—
CCA.
Conviction quashed, on the grounds — first,
of the insufficient nature of the evidence of
identification, and, secondly, because the case
had not been properly left to the jury. Rex
V. Bundy, 75 J. P. Ill— CCA.
Statement Incriminating Prisoner made by
Fellow-prisoner.] — Conviction of the appellant
469
CRIMINAL LAW.
470
quashed where substantially the whole of the
evidence against him was a statement by the
police that a fellow-prisoner on his arrest made
a statement incriminating the appellant, and
where the appellant denied the truth of such
statement and that he was present at the time
it was made— Rex v. Hickey, 27 T. L. R. 441
—CCA.
Verdict Arrived at upon Consideration of
Matters not in Evidence.] — The Court quashed
a conviction where it appeared that the jury
had arrived at their verdict, not upon a strict
consideration of the evidence, but upon a con-
sideration of other matters. Rex v. Newton,
28 T. L. R. 362— CCA.
Misstatement of Law.] — Conviction of the
appellant for the abduction of a girl under
the age of sixteen quashed on the ground that
the appellant had pleaded guilty upon the
faith of an erroneous statement of the law
from the presiding Judge. Rex v. Alexmider,
107 L. T. 240; 76 J. P. 215; 23 Cox CC 138;
28 T. L. R. 200— CCA.
A mere omission or misstatement in a
summing-up is not in itself a misdirection
where the case has been fully heard by the
jury ; but there is a miscarriage of justice
within section 4 of the Criminal Appeal Act,
1907, where the omission or misstatement is
such that the jury mav probably have been
misled bv it. Rex v. iVann, 107 L. T. 462;
76 J. P. 269 ; 23 Cox CC. 183 ; 28 T. L. R. 240
—CCA.
No Proper Direction to Jury — Perjury —
Several Assignments — Evidence Consisting of
Oath against Oath — Certificate by Judge.] —
The appellant was indicted for perjury. The
indictment contained several assignments of
perjury, one of them being that in a certain
conversation between the appellant and the
prosecutrix the latter had said she had had a
miscarriage and that she was afraid it was by
her lodger. The jury were not directed that
before they could convict they must be satisfied
that there was something more than oath
against oath upon each assignment. The jury
returned a general verdict of '" Guilty "' : —
Held, that, having regard to the fact that the
several assignments were before the jury and
within their general verdict, and that it was
impossible to say whether they would have
found the verdict they did if they had had a
proper appreciation of the necessity of proof
being given other than the mere oath of the
prosecutrix as against that of the appellant,
the conviction must be quashed. Where a
case is one proper for the consideration of the
jury and the jury are properly directed, the
mere opinion of the Judge who tries the case
that he would have found the other way or
that the verdict is unsatisfactory will not of
itself justify the Court of Criminal Appeal
interfering with the verdict of " Guiltv."
Rex V. Gaskell, 77 J. P. 112; 29 T. L."R.
108— CCA.
Receiving — No Direction to Jury as to
Possession.] — A sack of meal was stolen by
one S. from his employer, and taken by him
to a^ table in the appellant's yard, where the
appellant was standing. Before a few seconds
had passed a police officer followed and took
the sack away. The appellant was convicted
of receiving the sack : — Held, that the convic-
tion must be quashed, as there was no
direction to the jury as to what constituted
receipt bv the appellant of the sack. Rex v.
Crane, 76 J. P. 261— C.C.A.
Indecent Assault — Misdirection on Ques-
tion of Consent. — Conviction of the appellant
for indecent assault quashed on the ground
that the summing-up might have misled the
jurj' into believing that because the appellant
had not raised the question of consent on the
part of the woman alleged to have been
assaulted they must convict although there
was consent. Rex v. Horn, 76 J. P. 270;
28 T. L. R. 336— C.C.A.
Defence not Put to Jury — Wounding — Self-
Defence.] — The appellant was convicted of
felonious wounding. At the trial he did not
deny the wounding, but said that he acted in
self-defence. This defence was not put to the
jury, the only question left to them being
whether or not the appellant was insane : —
Held, that as the appellant's defence had not
been left to the jury, the conviction must be
quashed. Rex v. Hill, 105 L. T. 751;
76 J. P. 49; 28 T. L. R. 15; 22 Cox CC 625
—C.C.A.
M isdirection — Conspiracy — Defrauding Credi-
tors.]— The appellants — husband and wife and
two sons — were convicted of a conspiracy to
cheat and defraud the creditors of the wife.
Substantially the case for the prosecution was
that the mother sold to the sons a number of
bicycles under value. The evidence shewed
that the bicycles were sold to the sons for
less than similar bicycles were sold to other
agents : — Held, that the conviction must be
quashed, inasmuch as there might, from the
language of the summing-up, be the misappre-
hension in the minds of the jury that they
were entitled to convict the appellants if the
bicycles were sold to the sons at less than
was paid by other agentts, although the sales
were at sums over cost price. Rex v. Crane,
75 J. P. 41.5— C.C.A.
Statements not in Evidence Put before
Jury — Shorthand Notes of Evidence — Judge's
Notes. ^ — Where in his suiiiining-up to the
jury the deputy-chairman of quarter sessions
laid stress on certain evidence which had been
given at the police Court against the appellant,
but as to which it was doubtful whether it
was given before the jury, as it did not appear
either on the shorthand notes of the proceed-
ings at the trial or on the deputy-chairman's
own note, the Court quashed the conviction.
Where it is uncertain whether certain evidence
has been given before the jury, the Court will
be guided by the shorthand notes, especially
when combined with the Judge's own notes,
unless there are grave reasons for departing
from this practice. Rex v. Rimes. 28 T. L. R.
409— CCA.
Mistake as to Witnesses who had Given
Evidence."" — Conviction of the appellant for
471
CRIMINAL LAW— CROWN.
472
manslaughter quashed on the ground that the
Judge at the trial had erroneously told the
jury that none of the witnesses for the defence
at the trial except the appellant himself had
given evidence before the coroner or the police
magistrate, and therefore that there had been
no opportunity of testing their evidence, the
fact being that some of the witnesses had been
called before the coroner, the Court not being
satisfied that the jury would have returned
the verdict they did if this erroneous statement
had not been made. Rex v. Savidge,
76 J. P. 32— CCA.
Conviction for Murder — Substitution of
Verdict of Manslaughter.] — The appellant had
been convicted of murder, the defence having
been that the ailair was an accident or at most
manslaughter, and the Judge at the trial
having ruled that the defence of manslaughter
was not open to the appellant : — Held, on the
facts, that the verdict of murder should be
quashed and a verdict of manslaughter sub-
stituted. Rex V. Hopper, 84 L. J. K.B. 1371 ;
[1915] 2 K.B. 431; 113 L. T. 381; 79 J. P.
335; 59 S. J. 478; 31 T. L. R. 360— CCA.
Sentence — Principles on wliich Court Acts.]
— Principles upon which the Court of Criminal
Appeal acts, when asked to review sentences,
stated. Rex v. Shershewsky, 28 T. L. E. 364
—CCA.
6. Effect of Quashing of Conviction.
The quashing of a conviction by the Court
of Criminal Appeal puts the accused in the
same position for all purposes as if he had
been acquitted by the jury. Rex v. Barron,
(No. 2), 83 L. J. K.B. 786 ; [1914] 2 K.B. 570 ;
78 J. P. 311 ; 58 S. J. 557 ; 30 T. L. R. 422—
CCA.
Conviction Quashed — Appeal to House of
Lords — Detention or Bail of Appellant.] —
Where the Court of Criminal Appeal quashes
a conviction it has no power to order that the
appellant be detained in custody or admitted
to bail pending the decision of the Attorney-
General whether he will give a certificate
under section 1, sub-section 6 of the Criminal
Appeal Act, 1907, that it is desirable that a
further appeal should be brought to the House
of Lords, or, after such certificate has been
granted, pending the hearing of the appeal;
the appellant, on the conviction being quashed,
is entitled to be released at once. Director of
Public Prosecutions v. Ball (No. 1), 80 L. J.
K.B. 689; [1911] A.C 47; 104 L. T. 47;
22 Cox CC 364; 55 S. J. 190— CCA.
Order Reversed in House of Lords — Proce-
dure.]— Where an order of the Court of
Criminal Appeal quashing a conviction had
been reversed in the House of Lords, on an
application subsequently made to the Court of
Criminal Appeal, — Held, that the proper pro-
cedure in applying the decision of the House
of Lords was by application to the Court of
Criminal Appeal to amend its record by
expunging the order setting aside the verdict,
and to make an order for the arrest of
the accused persons. Director of Public
Prosecutions v. Ball (No. 2), 80 L. J.
K.B. 691; [1911] A.C. 47; 104 L. T. 48;
75 J. P. 180 ; 22 Cox CC 370 ; 27 T. L. R. 162
—CCA.
IX. BAIL.
See also Vol. IV. 1933, 2222.
Notice of Application to Prosecution.] —
While the Court of Criminal Appeal cannot on
its own initiative lay down a general rule that
notice must be given to the prosecution when
an application for bail is intended to be made,
it is very desirable that a Judge or the Court
in the exercise of his or its discretion should
direct such notice to be given. In cases where
the Director of Public Prosecutions is con-
cerned the application for bail should be
refused where no notice has been given of
the intended application. Rex v. Ridley,
100 L. T. 944; 22 Cox CC. 127; 25 T. L. R.
508— CCA.
Agreement to Indemnify Bail.] — An agree-
ment between a person against whom a
criminal charge is pending and another, that
if the latter will go bail for him he will
indemnify him against the consequences of his
recognisance being estreated in consequence of
such person not surrendering in accordance
with the conditions thereof, is an indictable
offence as tending to produce a public mischief.
Reg. V. Broome (18 L. T. (o.s.) 19) dis-
approved. Rex V. Porter, 79 L. J. K.B. 241 ;
[1910] 1 K.B. 369; 102 L. T. 255;
74 J. P. 159 ; 22 Cox CC 295 ; 26 T. L. R. 200
—CCA.
X. COSTS.
See also Vol. IV. 1938, 2223.
OfFence of Bigamy — Committed in one
County, Tried in another County — Costs of
Prosecution Payable by County where Offence
Committed.] — Where a person is apprehended
and tried in one county for the offence of
bigamy which has been committed in another
county, the costs of the prosecution are payable
under the Costs in Criminal Cases Act, 1908,
out of the county fund of the administrative
county in which the offence is committed, or
is supposed to have been committed, and not
out of the county fund of the county where the
offender is tried. Rex v. London County
Council; Keys, Ex parte, 83 L. J. K.B. 1381;
[1914] 3 K.B. 310; 111 L. T. 254;
78 J. P. 302; 12 L. G. R. 1210; 24 Cox
CC 263; 30 T. L. R. 504— D.
CROWN.
Commissioners of Works and Public Build-
ings— Liability to Action for Breach of Con-
tract.]— An action will lie against His
Majesty's Commissioners of Public Works and
473
CROWN.
474
Buildings for damages for breach of contract.
Graham v. Works and Public Buildings Com-
missioners (70 L. J. K.B. 860; [1901] 2 K.B.
781) applied. Roper v. Works and Public
Buildings Commissioners, 84 L. J. K.B.
219; [1915] 1 K.B. 45; 111 L. T. 630—
Shearman, J.
Liability to be Sued in Tort.] — The Com-
missioners being servants of the Crown, an
action is not maintainable against them, in
their official capacity, for damages in respect
of wrongful acts committed by their agents
or servants. The fact that the Commissioners
are incorporated by statute makes no differ-
ence in this respect. Raleigh v . Goschen
(67 L. J. Ch. 59; [1898] 1 Ch. 73) and
Bainbridge v. Postmaster-General (75 L. J.
K.B. 366; [1906] 1 K.B. 178) applied. lb.
Construction of Contract — Duty of Execu-
tive to Ascertain Law.] — Where the Crown
cannot be sued, either by petition of right or
through an appointed officer, it is the duty of
the Executive, in cases of doubt, to ascertain
the law by application to the Court in order
to act in accordance with it. Eastern Trust
Co. V. McKenzie, Mann d Co., 84 L. J.
P.C. 152; [1915] A.C. 750; 113 L. T. 346—
P.C.
The respondents agreed to pay 195,000
dollars as part of the purchase price for all
the stock and bonds of a company owning a
partly constructed railway in Nova Scotia.
The contract provided that the Government of
Nova Scotia had the right to be satisfied that
all claims for labour and supplies furnished in
connection with the construction of the railway
had been paid, and that the amount of those
claims might be paid out of the subsidies
payable by the Government, and that all sums
paid in liquidation of such claims should be
considered as payments on account of the
195,000 dollars : — Held, that the contract did
not oust the jurisdiction of the Court to deter-
mine whether a payment by the Government
out of the subsidies was in respect of " labour
and supplies " within the meaning of the
contract. 7b.
Injunction against Receiving Money — Pay-
ment by Executive — Contempt of Court.] —
Held, further, that a receipt from the Govern-
ment of money which the recipient has been
restrained from receiving is a contempt of
Court. lb.
Petition of Right.] — The view expressed by
the Lord Chief Baron in Kildare County
Council V. Regem ([1909] 2 Ir. E. 199) as to
the cases in which a petition of right is
the proper remedy approved and followed.
Dublin Corporation v. Regem, [1911]
1 Ir. R. 83— C.A.
Civil Servant — Pension — Basis of Calcula-
tion.]— A petition of right by a retired Civil
servant with respect to a claim for a pension
or to the basis on which his pension should
be calculated cannot be entertained by the
Courts, but is a matter for decision by the
Treasury. Yorke v. Regem, 84 L. J.
K.B. 947; [1915] 1 K.B. 852; 112 L. T. 1135;
31 T. L. R. 220— Lush, J.
Grant by Crown — Inconsistency with Pre-
vious Grant — Validity — Knowledge of
Grantee.] — A grant by the Crown which is
wholly or in part inconsistent with a previous
grant is void, unless the previous grant is
recited in it; but if the grantee had no notice,
actual or constructive, of the previous grant,
the second grant will be good to the extent
to which it may be consistent with the first
grant, though void as to the rest. Alcock v.
Cooke (7 L. J. (o.s.) C.P. 126; 5 Bing. 340)
explained. Vancouver City v. Vancouver
Lumber Co., 81 L. J. P.C. 69; [1911] A.C.
711; 105 L. T. 464— P.C.
Restrictions in Local Acts.] — Observations
per the Lord President and Lord Kinnear on
the extent to which the Crown is bound by
restrictions contained in local Acts. Edin-
burgh Magistrates v. Lord Advocate,
[1912] S. C. 1085— Ct. of Sess.
Writ of Extent — Seizure under Writ — Writ
Set Aside — Liability of Treasury Solicitor in
Trespass.] — The plaintiff's goods were seized
under a writ of extent, which was subse-
quently set aside on the ground that the
affidavit upon which the fiat of the Judge was
obtained for the issue of the writ was defective
in not alleging that fthe plaintiff was in-
solvent. In an action against the defendants
— the Treasury Solicitor and his assistants —
for the trespass to the plaintiff's goods by
their seizure under the writ, — Held, that as
there was a judicial determination interposed
between the filing of the affidavit upon which
the writ was obtained and the issue of the
writ, and as such issue was in consequence of
that interposition, the defendants were pro-
tected from liability. Pridgeon v. Mellor,
28 T. L. E. 261— Pickford, J.
Attorney - General — Liability to Penal
Action.] — The Court has jurisdiction to enter-
tain an action by a subject against the
Attorney-General as representing the Crown,
although the immediate and sole object of the
action is to affect the rights of the Crown in
favour of the plaintiff. Hodges v. Att.-Gen.
(8 L. J. Ex. Eq. 28; 3 Y. & C. 342) followed.
Dyson v. Att.-Gen., 80 L. J. K.B. 531;
[1911] 1 K.B. 410; 103 L. T. 707; 55 S. J.
168; 27 T. L. E. 143— C.A.
Declaratory Judgment.] — A declaratory
judgment may, under Order XXV. rule 5, be
sought against the Attorney-General as
representing the Crown. 76.
The plaintiff claimed a declaration against
the Attorney-General that he was not bound
to comply with certain notices served upon
him as an owner and occupier of land under
section 26, sub-section 2 of the Finance
(1909-10) Act, 1910 -.—Held, that the action
was one which was maintainable by the
plaintiff, and should be allowed to go to
trial. 7fc.
Costs — Proceedings to Determine Con-
struction of Charitable Legacies — Right of
Attorney-General to Costs.] — The rule that
475
CROWN— DAMAGES.
476
inasmuch as the Attorney-General cannot be
ordered to pay costs he ought not to receive
them does not apply, at all events in a Court
of first instance, to proceedings instituted by
the Attorney-General, pursuant to a certificate
of the Charity Commissioners under section 20
of the Charitable Trusts Act, 1853, to deter-
mine the construction of charitable gifts in a
will. In such a case the Attorney-General
represents all the objects of the charity, who
are plaintiffs through him ; and he is entitled
to be put in the same position as to costs
as any other plaintiff. Cardicell, In re;
Att.-Gen. v. Day, 81 L. J. Ch. 443;
[1912] 1 Ch. 779; 106 L. T. 753; 56 S. J.
361; 28 T. L. R. 307— Warrington, J.
Semble, that if the executors have distri-
buted the estate and paid the charitable
legacies in question they ought not to be made
parties to the proceedings. 7b.
Charitable Bequest — Crown Representing
Charities — No Party Below — Right to Appeal.]
In a case relating to a charitable bequest the
Court gave leave to the Attorney-General, as
representing the Crown, to appeal to the Court
of Appeal although he was not a party to the
proceedings in the Court below. Faraker,
In re; Faraker v. Durell, 81 L. J. Ch. 635;
[1912] 2 Ch. 488; 107 L. T. 36; 56 S. J. 668
— C.A.
Injunction on Behalf of Crown — Claim
to Foreshore — Right to Production of Con-
veyances Constituting Defendant's Title.] —
See Att.-Gen. v. Storey, post, col. 509.
Prerogative — Taking Land.] — See War.
CRUELTY.
To Animals.] — See Animals.
In Divorce Cases. ^ — See Husband and Wife.
CUSTOMS.
See REVENUE.
CYPRES APPLICATION.
See CHARITY.
DAMAGES.
1. Measure of Value and Loss.
a. Where no Market, 476.
b. Market Value, 476.
c. Nature of Right, 477.
d. Mitigation and Reduction, 481.
e. Prospective, 482.
2. Costs of Action, ichen Recoverable, 482.
3. Practice, 483.
4. In Particular Cases.
a. Work and Labour — See Work and
LABOrR.
b. Penalty or Liquidated Damages —
See Penalty.
c. On Sale of Goods — See Sale of
Goods.
d. On Collisions at Sea— See Ship-
ping.
1. Measltie of Value and Loss.
See also Vol. V. 274, 1628.
a. Where no Market.
Refusal to Accept Goods — Prospective
Profits.^ — A company entered into a contract
with a firm of engineers for the supply of
certain machines for the company's use.
Before the machines were delivered the com-
pany went into voluntary liquidation and the
liquidator refused to accept delivery. The
firm claimed to prove as creditors in the
winding-up for their full loss of profit. At
the commencement of the winding-up the
articles which the company was still under
contract to buy consisted of (a) machines
which the creditors had manufactured but
not delivered ; (b) machines which the
creditors had not commenced to manufacture.
The former were altered and then sold else-
where for a price less than that which the
company had contracted to pay. It was not
proved that the creditors' works were not
sufficiently ample to have enabled them to
perform their contract with the company in
addition to other contracts which they actually
performed for other customers : — Held, as to
items (a), that, there being no available market
for the goods as originally made, the measure
of damage was the whole loss of profit which
the creditors had suffered, and not merely the
loss on re-sale plus the costs of alterations ; as
to items (b), that the measure of damages
was the full amount of prospective profits
which the creditors had lost by non-fulfilment
of their contract. Vic Mill Co., Lim., In re,
82 L. J. Ch. 2.51; [1913] 1 Ch. 465;
108 L. T. 444; 57 S. J. 404— C.A.
b. Market Value.
Breach of Contract.] — In a contract, where
the seller reserves to himself so much of the
produce of the land as he may need for his
own purposes, and the purchaser breaks his
contract, the measure of damages for the
breach is the cost to the seller of procuring
the substituted article and not the price at
which such article could be sold by the person
who has procured it. Erie Courtty Natural
Gas and Fuel Co. v. Carroll, 80 L. J. P.C. 59;
[1911] A.C. 105; 103 L. T. 678— P.C.
In cases of breach of contract, in the assess-
ment of damages the party complaining
should, so far as it can be done by money,
477
DAMAGES.
478
be placed in the same position as he would
have been in if the contract had been per-
formed. Wertheim v. Chicoutimi Pulp Co.,
80 L. J. P.C. 91; [1911] A.C. 301;
104 L. T. 226; 16 Com. Cas. 297— P.C.
Where the delivery of goods has been de-
layed, the proper damages are the difference
between the full market price at the time and
place at which they ought to have reached the
purchaser and the rate at which they were
sold when they actually reached him — that is,
the loss actually sustained. lb.
Where a contract provided for the delivery
of goods at a place where there was no market
for them, damages for non-delivery should be
calculated with reference to the market at
which the purchaser, as the vendor knew,
intended to sell them, with allowance for the
cost of carriage. 7b.
In a contract for the sale of negotiable
securities the measure of damages for a breach
is the difference between the contract price and
the market price at the date of the breach,
with an obligation on the part of the seller
to mitigate the damages by getting the best
price he can at the date of the breach, and
the seller is not bound to reduce the damages,
if he can, by subsequent sales at better prices.
Jamal v. MooUa Daicood Sons d Co.,
85 L. J. K.B. 29; 60 S. J. 139: 32 T. L. E.
79— P.C.
Sale of Goods — Non-delivery — Re-sale by
Purchaser.] — The rule that the damages to
which a purchaser is entitled for non-delivery
of goods is the difference between the contract
price and the market price at the time when
they ought to have been delivered is not
affected by the fact that before the date of
delivery the purchaser had re-sold the goods
for less than the market value. Rodocanachi,
Sons d Co. V. Milburn (56 L. J. Q.B. 202
18 Q.B. D. 67) approved and followed
Williams v. Agius, Lim., 83 L. J. K.B. 715
[1914] A.C. 510; 110 L. T. 865
19 Com. Cas. 200; 58 S. J. 377
30 T. L. E. 351— H.L. (E.)
The law as laid down in Rodocanachi, Sons
S Co. V. Milburn (supra) is not affected by
section 51, sub-section 2 of the Sale of Goods
Act, 1893. lb.
c. Nature of Right.
Ship Steward Supplied with Articles to be
Smuggled — Fine Imposed on Ship — Liability
of Person Supplying Goods to Steward to
Repay Fine.] — A British ship, trading between
Grangemouth and South America, was fined
on arriving at Buenos Ayres by the Customs
authorities in respect that certain dutiable
articles on board had not, as required by
Argentine law, been declared in the ship's
manifest and had been found concealed in the
steward's cabin. These articles had, unknown
to the shipowners but with the connivance
of the captain, been supplied to the steward
by a firm of merchants at Grangemouth in the
knowledge that they were to be carried on
board the ship and traded with by him, and
thit for the purpose of successful trading
they would have to be smuggled into the port
of destination. They were supplied on credit,
and were to be paid for by the steward out of
the proceeds of the trading. The shipowners
having brought an action against the mer-
chants to recover in name of damages the
amount of the fine levied on the ship, — Held,
that the merchants, having been accessory to
the wrongful and illegal use of the vessel for
carrying goods on a smuggling adventure, were
liable for the loss and damage thereby occa-
sioned to the owners. Cairns v. Walker,
Lim., [1914] S. C. 51— Ct. of Sess.
Inducing Breach of Contract — Damages.] —
Where a stranger to a contract has induced
a party thereto to break a covenant in the
contract in such a way that the breach must
in the ordinary course inflict damage upon
the covenantee, no proof of special damage is
necessary to enable the covenantee to succeed
in an action against the stranger. Exchange
Telegraph Co. v. Gregory d Co. (65 L. J.
Q.B. 262 ; [1896] 1 Q.B. 147) followed on this
point. Goldsoll v. Goldman, 84 L. J. Ch. 63;
[1914] 2 Ch. 603; 112 L. T. 21; 59 S. J. 43—
Neville, J. See s.c. in C.A., ante. Contract :
e. In Restraint of Trade: ii. Eeasonableness.
Negligence of Advertising Agency in Address-
ing Circular to Minor — Sending by Money-
lender of Addressed Circular to Minor —
Conviction of Criminal Offence — Claim for
Indemnity against Advertising Agency." —
Where a person, relying on the performance
of a contract not illegal in itself, but
ignorant of the breach thereof by the other
contracting party, commits a criminal offence,
he cannot claiin from that contracting party,
by way of indemnity for damage caused by
the breach, the penalty or costs of prosecution
or defence incurred by him by reason of the
criminal prosecution and conviction. Leslie,
Lim. V. Reliable .Advertising and Addressing
Agency, 84 L. J. K.B. 719: [1915] 1 K.B. 652;
112 L. T. 947; 31 T. L. E. 182— Eowlatt, J.
A firm of money-lenders contracted with a
firm of advertising agents that the latter should
address a number of circulars inviting applica-
tions for loans with the names and addresses
of a large section of the public given in a
certain handbook, but omitting therefrom all
the names of minors appearing in the hand-
book. By an oversight the advertising agency
addressed one of the circulars to a minor, with
the result that the money-lenders sent the same
to the addressee. They and their manager
were prosecuted under the Betting and Loans
(Infants) Act, 1892. and the Money-lenders
Act, 1900, for having " knowingly " circu-
larised an infant. They were convicted and
fined, and claimed in a civil action against
the advertising agency, as damages for breach
of the contract or the negligence in wrongly
addressing the circular, the penalties and costs
of prosecution and defence incurred by them
and their manager : — Held, first, tliat the
whole of the claim must fail, as the money-
lenders could not rely on their contract with
the advertising agency for the purpose of shew-
ing that they had reasonable grounds to believe
the addressee to be of full age; and secondly,
that, if the claim could be maintained, the
damages were not too remote. Colburn v.
479
DAMAGES.
480
Patmore (3 L. J. Ex. 317 ; 1 Cr. M. & E. 73)
and BuTTOics v. RJiodes (68 L. J. Q.B. 545 ;
[1899] 1 Q.B. 816) considered. lb.
Volenti non fit Injuria.] — A merchant,
whose store was burnt as the result of the
negligence of a firm of carriers, received
injuries through falling from a roof on which
he had climbed with a hose for the purpose
of extinguishing the fire. In an action at his
instance against the carriers, — Held, that these
injuries were too remote to found a claim for
damages. Macdonald v. Macbrayne, Lim.,
[1915] S. C. 716— Ct. of Sess.
Sale of Article of Food for Purpose of Re-sale
—Implied Warranty that Article Fit for
Human Food— Breach of Warranty — Convic-
tion of Buyer — Loss of Business.] — The
plaintiff, a butcher, purchased the carcass of a
pig from the defendants, who were meat sales-
men; and, in ignorance of the fact that it was
tuberculous and unfit for food, he exposed it
for sale, but on the same day it was seized by
a sanitary inspector, was adjudged by a
Metropolitan police magistrate to be unfit for
human food, and was ordered to be, and it
was, destroyed. Thereupon the plaintiff was
charged under section 47, sub-section 2 of the
Public Health (London) Act, 1891, with haying
the carcass exposed for sale on his premises,
and was fined 20L In an action for breach of
an implied warranty that the carcass was
merchantable and reasonably fit for food, the
plaintiff claimed as damages from the defen-
dants the amount of the fine which had been
imposed upon him and the costs of the pro-
ceedings before the magistrate, and also for
loss of custom in his business. The jury found
that the carcass was unfit for human food, that
the plaintiff had impliedly made known to the
defendants the purpose for which the carcass
was required, and that he did so in such a
way as to shew that he relied on their skill and
judgment. The jury assessed the damages in
respect of the fine and costs at 36L 16s. 2d.,
and the damages in respect of loss of custom
at 200Z. : — Held, that these damages were not
too remote, and that the plaintiff was
entitled to recover them from the defendants.
Fitzgerald v. Leonard (32 L. R. Ir. 675) not
followed. Cointat v. Myham, 82 L. J. K.B.
551; [1913] 2 K.B. 220; 108 L. T. 556;
77 J. P. 217; 11 L. G. R. 770; 29 T. L. R.
387— Lord Coleridge, J.
New trial ordered, 84 L. J. K.B. 2253;
110 L. T. 749 ; 78 J. P. 193 ; 12 L. G. R. 274 ;
30 T. L. R. 282— C.A.
Possibility of Assessment — Selection for
Theatrical Engagement — Contingency.] — The
defendant, an actor and theatrical manager,
published in a newspaper an offer which was
substantially as follows : That any lady in
the United Kingdom who wished to become
an actress might send in to the newspaper an
application, together with her photograph and
the sum of one shilling ; that the United
Kingdom had been divided into ten districts ;
that the photographs of the applicants living
in each district would be given on request to
readers of the newspaper, who were invited to
vote for those whom they considered to be
the most beautiful in each district ; that from
the five ladies in each district (fifty in all)
for whom were received the greatest number
of votes the defendant would himself person-
ally select twelve, and that to four of these
twelve he would give a three years' engage-
ment each at five pounds a week, to other four
a three years" engagement each at four
pounds a week, and to the remaining four a
three years' engagement each at three pounds
a week. The plaintiff accepted the offer by
sending in an application, together with her
photograph and the sum of a shilling, and by
the votes of the readers of the newspaper she
was given the first place in the district in
which she resided. The defendant failed to
give the plaintiff a reasonable opportunity of
appearing before him as one of the fifty candi-
dates from whom he was to select the twelve
to whom the engagements were to be given.
The plaintiff brought an action against the
defendant for damages for breach of contract
in depriving her of the chance of being
selected by him for one of the engagements,
and the jury awarded her substantial
damages : — Held, that, though the plaintiff's
chance of obtaining one of the appointments
depended upon the contingency of the defen-
dant selecting her, the damage sustained by
her through being deprived of that chance
was neither too remote nor incapable of assess-
ment, and that the verdict should stand.
Chaplin v. Hicks, 80 L. J. K.B. 1292; [1911]
2 K.B. 786; 105 L. T. 285; 55 S. J. 580;
27 T. L. R. 458— C.A.
Course of Tuition — Payment by Instalments
— Breach.] — A student entered into a contract
with a correspondence school, by which it was
agreed that he should receive a certain course
of instruction by correspondence and should
pay therefor a fixed sum, payment to be made
by monthly instalments until the whole sum
was paid up. After pursuing the course for
some time and paying the instalments as they
fell due during that period, the student
declined to continue the course, and refused to
make any further payments. In an action
brought against him by the school for payment
of the balance of the fixed sum the student
maintained that the school could only recover
such damages as they could prove that they
had suffered through his breach, if any, of the
contract : — Held, on the construction of the
contract that the agreement was for a definite
course of instruction on one side and for a
lump sum payment on the other, and accord-
ingly that the pursuers, who were willing to
complete the instruction they had contracted
to supply, were entitled to recover the unpaid
balance of that sum. International Corres-
pondence School V. Irving, [1915] S. C. 28—
Ct. of Sess.
Remoteness — Towage Contract — Collision —
Sinking of Tow by Collision — Loss of Towage
Remuneration by Tug Owner — Right of Tug
Owner to Recover Loss from Colliding
Vessel.] — The plaintiffs' tug was engaged in
towing a ship from Antwerp to Port Talbot,
under a contract which contained the clause
" Sea towage interrupted by accident to be paid
pro rata of distance towed." During the
481
DAMAGES.
482
towage the defendant's vessel, by the negli-
gence of those on board, collided with and sank
the tow. The tug was uninjured. The plain-
tiffs sued the defendant to recover the amount
of towage remuneration so lost : — Held, that
the damage sustained by the plaintiffs by
reason of the towage contract being no longer
performable, in consequence of the sinking of
the tow, gave the plaintiffs no cause of action
against the defendant. Cattle v. Stockton
Waterworks Co. (44 L. J. Q.B. 139; L. E.
10 Q.B. 453) followed. Remorquage a Helice
{Soci6t6 Anonyme) v. Bennetts, 80 L. J. K.B.
228; [1911] 1 K.B. 243; 16 Com. Cas. 24;
27 T. L. R. TT^Hamilton. J.
Ploughing up Pasture Land — Injunction
— Damage to Tenant Caused thereby.] — The
tenants of a pasture farm upon which they
maintained a flock of sheep proposed to plough
up part of the pasture land and plant corn.
The landlord obtained an interim injunction
restraining them from doing so, with the result
that the tenants were compelled to maintain
the farm as a pasture farm. They kept their
sheep on the land, and in consequence of a
drought the sheep became depreciated in value.
The interim injunction obtained by the land-
lord was dissolved at the hearing of the action,
and in arbitration proceedings the tenants
claimed as damages the net profit they would
have made if they had ploughed the land and
planted corn, and also the amount by which the
sheep had deteriorated in value. It was con-
tended for the landlord that the damages
arising under the second head were too remote
and could not be allowed : — Held, that the
tenants were entitled to damages under both
heads of their claim. Pemberton and Cooper,
In re, 107 L. T. 716— Bankes, J.
For Breach of Promise.] — See Husband and
Wife.
d. Mitigation and Reduction.
Profit Accruing by Acts Done in Mitigation
of Damages — Relevancy.] — In assessing
damages for breach of contract the funda-
mental basis is compensation for pecuniary loss
naturally flowing from the breach ; but this is
qualified by the plaintiff's duty to take all
reasonable steps to mitigate the loss consequent
on the breach, and he cannot claim any part
of the damage which is due to his neglect to
take such steps ; and if the action which he has
taken has actually diminished his loss, such
diminution may be taken into account, even
though there was no duty on him to act. A
jury or arbitrator may properly look at the
whole of the facts, and, by balancing loss and
gain, estimate the quantum of damage. British
Westinghouse Electric and Manufacturing Co.
V. Underground Electric Railways, 81 L. J.
K.B. 1132; [1912] A.C. 673; 107 L. T. 325;
56 S. J. 734— H. I.. (E.).
The appellants contracted to provide the
respondents with a number of machines. The
machines failed to satisfy the provisions of the
contract, and the respondents claimed damages
for breach of contract. They also replaced the
defective machines by improved machines.
The question was submitted to an arbitrator,
who in the Special Case stated that the appel-
lants' claim was in substance for the balance
of the price of the machines supplied by them,
and that the respondents counterclaimed for
the loss and damage arising out of the defects
of the appellants' machines. The arbitrator
found as a fact that the purchase by the respon-
dents of the substituted machines was to their
pecuniary advantage, and would have been so
even if the original machines had complied with
the contract : — Held, that the appellants were
entitled to have the pecuniary advantages to
the respondents arising from the use of the
improved machines brought into account in
ascertaining the damages sustained by the
respondents by reason of the appellants' breach
of their contract. 76.
Erie County Natural Gas and Fuel Co. v.
Carroll (80 L. J. P.C. 59 ; [1911] A.C. 105) and
Wertheim v. Chicoutimi Pulp Co. (80 L. J.
P.C. 91; [1911] A.C. 301) approved. lb.
Alteration of Contract — Subsequent Arrange-
ment— Music-hall Contract.] — Before the war
the defendant agreed to perform twice every
evening as a comedian at the plaintiffs' music
hall for one week beginning on October 12,
1914, at a salary of 1501. The contract pro-
vided that " in case the artist shall, except
through illness ... or accident . . . fail to
perform at any performance, he should pay to
the management as and for liquidated damages
a sum equal to the sura which the artist would
have received for such performance, in addition
to costs and expenses incurred by the manage-
ment through the default of the artist." After
the outbreak of war an arrangement was come
to between the managements of the various
music halls and the artistes, including the
defendant, that the gross receipts of the halls
during the war should be divided into two
equal parts, of which the management should
take one part and the performers at the hall
the other part, sharing that part in the propor-
tion of their respective salaries. The defendant
having failed to perform at the plaintiff's hall,
they brought an action for damages against
him : — Held, that in order to ascertain the
measure of damages the sum fixed in the con-
tract had to be altered in view of the subse-
quent arrangement, and that the plaintiffs were
entitled to recover such proportion of the
artistes' share in the receipts which would
probably have been received if the defendant
had performed his agreement, as the defendant
would have been entitled to. Golder's Green
Amusement and Development Co. v. Relpli,
31 T. L. R. 343— Bailhache, J.
e. Prospective.
See Vic Mill, Lim., In re, supra, sub tit.
(a) Where no Market and Chaplin v. Hicks,
supra, sub tit. Nature of Right.
2. Costs of Action when Recoverable.
See Leslie Lim. v. Reliance Advertising and
Addressing Agency and Cointat v. Myham,
supra, sub tit. Nature of Right.
16
483
DAMAGES— DEBTS.
484
3. Practice.
Enquiry as to — Interest — Referee — Report —
Date from which Interest Payable.] — An action
for damages for trespass to mines was com-
promised on July 18, 1910, by an order re-
ferring it to a special referee to ascertain
damages on an agreed basis, the defendants
to pay the sum so found. On June 1, 1911,
the referee reported that 1,515Z. was payable.
On motion that the report be adopted, the
plaintiff company claimed interest from
July 18, 1910 -.—Held, that the order of
July 18, 1910. was not an order within the
Judgments Act. 1838, s. 18, since a further
order was necessary to enforce it, and that
interest was not payable from that date.
Borthwick v. Elderslie Steamship Co. (No. 2)
(74 L. J. K.B. 772; [190-5] 2 K.B. 516) dis-
tinguished. But held, that the order con-
stituted an agreement to pay the damages
when found, and that 4 per cent, interest
was payable from June 1, 1911, the date of
the referee's report. Ashover Fluorspar Mines,
Lim. V. Jackson, 80 L. J. Ch. 687; [1911]
2 Ch. 355; 105 L. T. 334; 55 S. J. 649;
27 T. L. E. 530— Eve, J.
" Order "—Judgments Act, 1838.]— Where
an order directs an enquiry as to damages in
an action of trespass and gives liberty to
apply after the result is certified, it is not
an order within the provisions of section 18
of the Judgments Act, 1838. Where an order,
after directing such an enquiry, orders pay-
ment of the amount so to be certified it ia
an order within that section. lb.
Action for Recovery of Land — Interest.] —
The appellant, who alleged that he was
entitled to certain land in fee-simple under
the trusts of a settlement, brought an action
against the respondent for wrongfully issuing
a certificate of title to the land to another
person. In this action he established his title
to the land, and it was held that the measure
of damages was the value of the land with the
buildings thereon at the date when his title
fell into possession on the death of the previous
tenant for life : — Held, that the appellant was
not entitled to interest on the value of the land
and buildings from the date when his title fell
into possession. Spencer v. Registrar of Titles,
103 L. T. 647— P.C.
Set-oflF against Costs.] — See Costs.
DEATH DUTIES.
See REVENUE.
DEATH.
Caused by Negligence — Damages.] — See
Negligence.
Presumption of.] — See Will.
Of Annuitant.] — See Annuity.
DEBENTURES.
See COMPANY.
DEBTORS ACT.
Attachment — Fiduciary Capacity of Executor
to Creditors Terminated when a Personal
Judgment Recovered.] — Sole creditors of a
testator on evidence that the executor had
received assets, took an order on him to pay
personally, and afterwards on an admission
that he had had a sum in his hands represent-
ing part of the testator's estate, obtained a
four-day order to pay the sum into Court,
followed by attachment for non-compliance : —
Held, that by taking a personal order the
plaintiffs had terminated the fiduciary relation-
ship which had until then existed between
them and the executor, and therefore could
not rely on such relationship to bring the
defendant within the third exception in
section 4 of the Debtors Act, 1869, and entitle
them to an order attaching him for non-
payment. Thomas, In re: Sutton, Garden d
Co. V. Thomas, 81 L. J. Ch. 603; [1912] 2 Ch.
348; 106 L. T. 996; 56 S. J. 571— C.A.
Judgment Summons — Order for Payment of
Money — Default — Summons for Order of Com-
mitment— Necessity for Service of Order for
Payment.] — The defendant having made
default in payment of a sum of money in com-
pliance with an order made against him on a
judgment summons, the plaintiff took out a
further judgment summons calling upon the
defendant to shew cause why be should not be
committed to prison for such default. This
summons was personally and duly served upon
the defendant, but the order made on the first
summons was not personally served upon him.
though he was present when that order was
made : — Held, that it was not necessary, in
order to found jurisdiction to make an order
of commitment, that the defendant should have
been personally served with the order made on
the first judgment summons. Haydon v.
Haydon, 80 L. J. K.B. 672; [1911] 2 K.B.
191 ; 104 L. T. 477 ; 27 T. L. R. 321— C.A.
DEBTS.
Assignment of.] — See Assignment.
Attachment of.] — See Attachment.
485
DECEIT— DEED.
486
DECEIT.
See FRAUD.
DECISIONS.
Court of Session.] — In a case arising on
the construction of a statute equally applicable
to England and Scotland, it is the duty of an
English Court of first instance to follow a
unanimous decision of the Court of Session.
Dixon Hartland, In re: Banks v. Hartland,
80 L. J. Ch. 305; [1911] 1 Ch. 459: 104 L. T.
490; 55 S. J. 312— Swinfen Eady, J.
DEDICATION.
Of Highway,] — See Way.
Of Public Park.] — See Local Government.
DEED.
See also Vol. V. 341, 1639.
Assignment — Delivery Necessary to Consti-
tute Delivery as Deed or Escrow — Delivery to
Grantor's Solicitor — Deed to be Completed on
Further Instructions from Grantor — Document
to take Effect on Death of Grantor — Non-
execution of Document as Will.] — In
September, 1905, H., the assignee of the lease
of certain premises, having signed and sealed
an assignment of the residue of the term to
one Mrs. B., handed the assignment to his
solicitor. The assignment was not attested in
the way provided by the Wills Act. On the
same day as that on which the assignment,
which was not dated, was handed by H. to
his solicitor, the latter's firm wrote the follow-
ing letter to H. : "We acknowledge that you
have to-day executed the assignment of your
lease to Mrs. B. as an escrow, and that we
are to retain it on your behalf until you send
us instructions to complete the deed. In the
event of your dying before the deed is com-
pleted, we understand that we are to consider
the deed as having been completed before your
death and to take what steps are necessary
to vest the lease in Mrs. B. should she wish
it. In the event of Mrs. B. dying before the
assignment is completed you will, of course,
send us further instructions as to what is to
be done with the premises. ..." The assign-
ment in question — which was also, but at some
date unknown, executed by Mrs. B. — re-
mained in the possession of H.'s solicitor up
to H.'s death on September 22. 1909. and
subsequently the blank was filled in by dating
the assignment September 20. 1909; but the
title deeds were retained by H., who con-
tinued to pay the rent, rates, and taxes.
Mrs. B. survived H. In an action by the
lessors against H."s executors to recover pos-
session of the premises and other relief, on the
ground that the residue of the term was vested
in H. at his death, in which action the
defendants set up as a defence the above-
mentioned assignment, — Held, that the plain-
tiffs were entitled to succeed, inasmuch as in
the event which happened there was no such
delivery by H. as made the assignment capable
of taking effect either as an escrow or as a
deed ; and held further, that even if the deed
had been delivered on condition that it should
take effect on the death of H., it would
operate as a will, and not having been attested
in accordance with the Wills Act was a
nullitv. Foundling Hospital (Governors) v.
Crane, 80 L. J. K.B. 853; [1911] 2 K.B.
367; 105 L. T. 187— C. A.
Execution by Attorney — Invalid Power of
Attorney — Deed Void — Acknowledgment by
Donor — Redelivery.]— On February 26, 1896,
a lady by her attorney executed a voluntary
deed of gift of chattels in favour of her
daughter. The attorney's power did not
authorise him to execute such a deed. On
June 9, 1898, the lady's solicitor at her request
produced and read to her the deed of gift, when
she desired him to retain it on her daughter's
behalf. A month later the lady sent to her
solicitor an inventory of the chattels with a
note on it in her handwriting stating that
they were " now the property " of her
daughter : — Held, that there had been such an
acknowledgment of the deed by the lady in
1898 as amounted then to a delivery or re-
delivery of the deed. Seymour, In re ;
Fielding v. Seymour, 82 L. J. Ch. 233; [1913]
1 Ch. 475; 108 L. T. 392; 57 S. J. 321— C.A.
To establish re-delivery of a deed by ac-
knowledgment it is not necessary to shew that
the party making the acknowledgment is aware
that without the acknowledgment the deed
would be invalid. lb.
Construction — Joinder of Party for Limited
Purpose — No Inference of Joinder for other
Purposes — Erroneous Recital — Erroneous In-
clusion of Parcels in Schedule.] — A party who
joins in a deed for a specific purpose cannot
be treated as having joined for a totally
different purpose, or as having thereby dealt
with any property, unless a clear intention to
do so appears. Horsfall, In re; Hudleston v.
Crofton, 80 L. J. Ch. 480; [1911] 2 Ch. 63;
104 L. T. 590— Parker, J.
E., under the will of her father, T., who
died in 1861, was tenant for life, with a power
of appointment among her issue, of lands
specifically devised, and of part of his residuary
estate. She had married in his lifetime, and
he had then settled on her and her children
part of the lands specifically devised by his
will. Some of those lands, not included in
the settlement, were in 1871 sold by the
trustees of the will, and the proceeds invested.
In 1891 E. became a trustee of the will. In
1896, on the marriage of her daughter. S..
E. appointed to her a share in T.'s residuarv
estate, the deed of appointment reciting
487
DEED.
488
erroneously that all the specifically devised
lands had been comprised in E.'s marriage
settlement. S., by her own marriage settle-
ment, settled her share of T.'s residuary estate
and of the investments representing the same,
those investments being stated to be specified
in the schedule. The schedule, however, in-
cluded investments representing the proceeds
of the specifically devised lands which had been
sold. E. was a party to S.'s marriage settle-
ment, whereby she covenanted to pay an
annuity : — Held, that, notwithstanding the
erroneous recital in the appointment to S.,
E. exercised her power thereby only over T.'s
residuary estate, and not over the proceeds of
sale; and that E.'s joinder in S.'s marriage i
settlement did not amount to an appointment
or settlement by her of any of those proceeds.
Minchin v. Minchin (5 Ir. E. Eq. 178, 258)
and Griffith-Boscawen v. Scott (53 L. J.
Ch. 571; 26 Ch. D. 358) followed. lb.
Charge on Real Estate — " Die seised " —
Seisin — Copyhold — Unadmitted Owner.] — A.
covenanted to pay certain annuities, with
power of distress, or entry for the recovery of
the same, upon the real estate of which he
might die seised. At the time of his death A.
was in receipt of the rents and profits of
certain copyholds of which he had never been
admitted tenant, but as to which the admitted
tenant had declared that he stood possessed
of the same in trust for A. and his heirs and
assigns : — Held, that A. had not died
" seised " of the copyhold premises. Norman,
In re; Thackray v. Norman, 111 L. T. 903;
58 S. J. 706— Joyce, J.
Licence — Reservation to Licensors, "their
assigns and nominees" — Reading-in Words —
Derogation from Grant.] — In certain cases
the word " assigns," when not expressed, may
be read into a document, but whether it is
proper to do so depends on the context in each
case. In a case of a licence where the exten-
sion of a reservation by the licensors to their
" assigns and nominees " would destroy the
only effective limitation on the scope of the
reservation, and make it possible for the
licensors to derogate very seriously from their
grant, the Court will not supply such words
where they are not expressed in the licence in
question. Anglo-N ewjoundland Development
Co. V. Netofoundland Pine and Pulp Co.,
83 L. J. P.C. 50; 110 L. T. 82— P.C.
Covenant — " As trustees but not so as to
create any personal liability" — Effect — Re-
pugnancy.]— A covenant (by the trustees of
a deceased mortgagor) " as such trustees but
not so as to create any personal liability " (to
pay the mortgage debt and indemnify the
estate of a deceased co-mortgagor) involves the
personal liability of the covenantors. Fiirni-
rall V. Coombes (12 L. J. C.P. 265; 5 Man.
& G. 736) followed. Williams v. Hathaway
C6 Ch. D. 544) distinguished. Watling v.
T.eu-is, 80 L. J. Ch. 242: [1911] 1 Ch. 414;
104 Tj. T. 132— Warrington, J.
The words " but not so as to create any
personal liability " are, in effect, a proviso
destroying, and not qualifying, the covenant
entered into bv the covenantors " as trustees " ;
that covenant is an absolute one and imports
personal liability ; the subsequent words are
repugnant to it and must be rejected ; and the
personal liability therefore remains. lb.
Grant of Fee-simple — Reservation of
"mines, quarries of metals and minerals and
springs of oil" by Grantor — Natural Gas not
vtrithin Reservation.] — In an exception in a
conveyance of land of " all mines and quarries
of metals and minerals and all springs of oil
in or under the said land, whether already
discovered or not," — Held, that natural gas,
which at the date of the conveyance possessed
no commercial value, was not included, but
passed to the grantee. Barnard-Argue-Roth-
Stearns Oil and Gas Co. v. Farqiiharson,
82 L. J. P.C. 30; [1912] A.C. 864; 107 L. T.
332; 57 S. J. 10; 28 T. L. R. 590— P.C.
Mining Lease — Parcels — Area Stated within
Specified Boundaries — Alleged Deficiency —
Abatement of Rent.] — The appellant was
lessor and the respondents lessees under a
mining lease, the terms of which were con-
tained in a kabuliyat, granting the rights of
cutting, raising, and selling coal beneath
" 400 bighas of land, described in the schedule
below, in mauza Dobari "; the schedule speci-
fied boundaries and added " right in the coal
underneath the 400 bighas of land within these
boundaries." In a suit to recover arrears of
rent the respondents alleged that they were
in possession of less than 400 bighas and
claimed to be entitled to an abatement of rent :
— Held, first, that the construction of the
kabuliyat as to the land included in the lease
could not be varied by evidence of the negotia-
tions which led to the contract or by evidence
that there were not 400 bighas within the
specified boundaries ; and secondly, further,
that the respondents had failed to prove what
was the area in fact contained within the
boundaries or that of which they had been
given possession. Durga Prasad Singh v.
Eajendra Narayan Bagchi, L. R. 40 Ind. App.
223 P.C.
Alteration of Date — Parcels — Plan — Implied
Right of Way.l — A lessor granted a lease of
certain plots of land on which had been erected
certain then nearly finished houses. The
grant was defined by reference to a plan in the
margin, which shewed a narrow strip of
ground, coloured brown, at the rear of the
plots, and running along other land that be-
longed to the lessor, but was not included in
the lease. The lease contained no express
grant of any right of way along this strip, nor
indeed further reference to it ; but the evidence
shewed that the use of the strip was essential
to the tenants of the new houses for the con-
venient ingress of coal and manure, and for
the egress of garden rubbish. At the time
of the original granting of the lease the dates
of the day and month were left in blank, but
subsequently there was an alteration of the
year (with the consent of all parties), and the
blanks were also filled in. At the date of the
original granting of the lease the plots were
not yet fenced on the side towards the strip ;
but at the time of the alteration they were so
fenced, and the position was indicated for gates
489
DEED— DEFAMATION.
490
communicating between the plots and the
strip : — Held, that the alteration of the lease
did not avoid it, and that the lessor was
estopped from shewing that the date inserted
by himself was not the date from which the
demise operated, so as to prevent any one
claiming under the lease from relying upon the
circumstances existing at the date that the
lease finally bore. Held, further, that, under
those circumstances, an implied right of way
over the strip in question had passed under
the lease from the lessor to the lessee. Rudd
V. Bowles, 81 L. J. Ch. 277; [1912] 2 Ch. 60;
105 L. T. 864— Neville, J.
Release — Effect of — Proceedings not Con-
templated by the Release.] — It is not compe-
tent for a respondent on a summons against
him for misfeasance to set up as a bar to the
proceedings that a release had been given him
by the company which included a general
clause of release, unless such relief is shewn
to have contemplated the matters actually in
question on the summons. Joint-Stock Trust
and Finance Corporation, In re, 56 S. J. 272
— Swinfen Eady, J.
Lease — Innocent Misrepresentation by Lessor
Inducing Contract — Right of Tenant to Can-
cellation of Lease.] — A lease by deed which
has been executed by the lessee on the faith
of an innocent misrepresentation on the part
of the lessor, and under which the lessee has
gone into possession, will not be rescinded by
the Court upon the ground that the execution
of the deed was induced by such misrepresenta-
tion. Angel v. Jay, 80 L. J. K.B. 458 ; [1911]
1 K.B. 666; 103 L. T. 809; 55 S. J. 140— D.
DEED OF ARRANGEMENT.
See BANKRUPTCY.
DEFAMATION.
A. What is and what is not Actionable.
1. In General, 490.
2. In Respect of Trade or Profession, 491.
3. Comments on Matters of Public
Interest, 493.
B. Privilege.
1. Absolute, 493.
2. Qualified, 494.
3. Rebuttal of Privilege by Evidence of
Malice, 496.
C. Procedure and Practice, 497.
A. WHAT IS AND WHAT IS NOT
ACTIONABLE.
See also Vol. V. 532, 1649.
1. In General.
Publication — Letter in Unsealed Halfpenny
Envelope — Unlawful Opening by Third
Person. J — The respondent sent a letter to his
wife containing words alleged to be a libel on
their children, the plaintiffs. This was in-
closed in an open envelope, bearing a halfpenny
stamp, addressed to her in her maiden name,
and sent through the post. It was opened by
the wife's butler out of curiosity, and he read
the letter : — Held, that there was no evidence
of publication to him by the respondent, as his
act was unauthorised and could not reason-
ably be anticipated by the respondent. Huth
V. Huth, 84 L. J. K.B. 1307; [1915] 3 K.B.
32; 113 L. T. 145; 31 T. L. R. 350— C. A.
Right of Postal Authorities to Open such
Letters — Presumption of Opening by Them.]
— Although the postal authorities iiad the right
to examine the contents of envelopes under a
halfpenny stamp, a presumption that they had
in fact done so did not arise, and evidence to
shew that they had done so in fact would be
necessary to shew publication to them. lb.
Publication — Liability of Circulating
Library.] — The defendants, who were book
distributors, sold two books which were pub-
lished in the French language in Paris, and
which the plaintiff alleged contained libellous
statements regarding her. In an action by
the plaintiff claiming damages from the defen-
dants in respect of the publication of these
statements, the jury found that the defendants
did not know of anything libellous contained
in the books, that it was not through their
negligence that they did not know, and that
the books were not of such a character as to
put them on enquiry : — Held, that the defen-
dants were not liable. Per Cozens-Hardy,
M.R. : While as to some books there may be
a duty on distributing agents to examine them
carefully, because of their titles or because of
the recognised propensity of their authors to
scatter libels abroad, there is no general obliga-
tion on distributing agents to read every book
they sell in order to ascertain whether or not
it contains any libellous statements. Weldon
V. Times Book Co., 28 T. L. R. 143— C. A.
Publication of Story in Magazine under
Plaintiff's Name — Plaintiff not the Writer of
the Story — Passing off.' — The plaintiff, a
writer of reputation, sued the defendants for
damages for publishing in their magazine a
story under the plaintiff's name of wliich he
was not the writer. The plaintiff alleged that
the story was of inferior quality, and, being
published as by him, was damaging to his
reputation. In summing up the Judge directed
the jury that if they came to the conclusion
that any one reading the story would think the
plaintiff a mere commonplace scribbler they
could give him damages for libel, and, further.
that on the claim for passing off, if they
thought the facts proved and that damage
491
DEFAMATION.
492
must certainly ensue, though it was not
capable of present proof, they could find for
the plaintiff with damages. Ridge v. English
Illustrated Magazine, 29 T. L. K. 592—
Darling, J.
Innuendo — Necessary Inference from Lan-
guage Used.] — In order to support an action
for libel the innuendo must represent the
reasonable, natural, or necessary inference
from the words complained of, regard being
had to the occasion and circumstances of their
publication. It is not enough that the words
may be made to bear a defamatory meaning
by putting upon them a strained and impro-
bable construction. Crabbe tf Robertson v.
Stubbs (22 Rettie. 860) discussed and ex-
plained. Stubbs. Lim. v. Russell. 82 L. J.
P.C. 98: [1913] A.C. 386; [1913] S. C.
(H.L.) 14; 108 L. T. 529; 29 T. L. E. 409
— H.L. (Sc.)
Publication of Translation of Papal Bull.] —
The translation of a Papal bull and its publica-
tion in a newspaper simply for the information
of readers is not a contravention of 13 Eliz.
c. 2. The words of the statute, " publish
or . . . put in use " mean publishing so as to
make the bull operative in this country.
Matheic v. Times Publishing Co., 29 T. L. R.
471— Darling, J.
Libel on a Class.] — A newspaper pub-
lished an article on Ireland, stating that in
Queenstown instructions were issued by the
Roman Catholic religious authorities that all
Protestant shop assistants should be dis-
charged, and that a shopkeeper who had
refused so to act had had his shop proclaimed
and had been forced to close it. The Roman
Catholic Bishop of Queenstown and six of his
clergy (who averred that they were the Roman
Catholic religious authorities referred to) sued
as individuals to recover separate sums of
damages on account of the accusations in the
article. The article was innuendoed as
charging the pursuers with abusing their reli-
gious influence to procure the indiscriminate
dismissal of Protestant shop assistants, and
with ruining a shopkeeper's business : — Held,
first, that the pursuers were entitled to sue for
damages as individuals; secondly, that it was
for the jury to determine whether they or any
of them were the Roman Catholic religious
authorities referred to; and thirdly, that the
article could bear the defamatory meaning put
upon it. Browne v. Thomson d- Co., [1912]
S. C. 359— Ct. of Sess.
2. In Respect of Tkade or Profession.
Slander — Words Spoken in Relation to a
Person's Office. Trade, or Profession.] — An
action for a slander upon a person in the
way of his office, trade, or profession will lie
without proof of special damage when, from
the nature of the office held by the person
slandered, the words uttered will in the
ordinary course caused him damage, although
the person uttering the slander did not in
terms connect the misconduct imputed to the
plaintiff with the office held by him. Authori-
ties on the subject discussed. Jones v. Jones,
84 L. J. K.B. 1140 ; 113 L. T. 336 ; 31 T. L. R.
245— Lush, J. Reversed, 60 S. J. 140;
32 T. L. R. 171— C.A.
Certificated Teacher and Head Master of
a County Council School — Imputation of
Adultery — No Special Damage Alleged or
Proved — Words Actionable per se.] — A certifi-
cated teacher and head master of a county
council school brought an action against a man
and his wife to recover damages for a slander
uttered concerning the plaintiff in the way of
his business by the female defendant. The
words spoken imputed that the plaintiff had
been guilty of moral misconduct with a certain
woman, but when they were spoken no refer-
ence was made by the female defendant to the
plaintiff's position as a head master, and it did
not appear that she knew that he held that
office. No special damage was alleged or
proved. The jury found that the words spoken
were calculated to imperil the plaintiff's reten-
tion of his office, and awarded him damages :
— Held, that the words were actionable per se,
and that consequently the plaintiff was entitled
to judgment. lb.
Disparagement of System Worked under a
Patent — Imputation on Patentee.] — To dis-
parage a trader's goods does not give ground
for an action of libel, although, if special
damage is proved, the plaintiff may recover in
an action on the case. If, however, the words
used, though directly disparaging goods, also
impute carelessness, misconduct, or want of
skill in the conduct of his business by the
trader, they may give grounds for an action
of libel. An attack upon the system worked
under a patent does not necessarily involve an
imputation upon the person who supplies the
parts and licenses the use of the system.
Griffiths V. Benn, 27 T. L. R. 346— C.A.
Allegation of Professional Incapacity —
"Quack."] — In an action for slander at the
instance of C, the superintendent of a district
lunatic asylum (who was admittedly not a
qualified medical practitioner), complaining
that the defender had said of him, " What
does that mannie C. know about treating
lunatics? He is just a quack. We will sack
him yet " : — Held, that the words were capable
of meaning that the pursuer was unfit for his
duties as superintendent, that he did not know
his work, was not properly qualified for the
work in which he was engaged, and ought
to be dismissed from his post, and therefore
that the question must be left to the jury.
Chisholm v. Grant, [1914] S. C. 239— Ct. of
Sess.
Justification — Failure to Prove — Defamatory
Meaning.] — The plaintiffs were the proprietors
of a wine, known as " Bendle's Meat-Port
Nutrient," and the defendants published a
statement which in substance was that the
wine, though it was advertised as a really
genuine nutritive meat wine, did not contain
highly nutritive properties. In an action by
the plaintiffs against the defendants for libel
the defendants pleaded justification. The
Judge found that the plaintiffs' advertisement,
493
DEFAMATION.
494
if fairly read, was substantially true, and he
awarded the plaintiffs damages : — Held, on the
evidence (Phillimore, L.J., dissenting), that
the words would be understood by reasonable
men as imputing to the plaintiffs dishonesty or
fraudulent incapacity in the way of conducting
their business, and the Judge's decision must
be affirmed. Bendle v. United Kingdom
Alliance, 31 T. L. R. 403-C.A.
3. Comments on Matters of Public Interest.
Innuendo.] — A ratepayer having made cer-
tain charges against the matron of a hospital,
an enquiry was held in which evidence was
given by the matron and by other members
of the hospital staff. The commissioner who
conducted the enquiry reported adversely on
the credibility of certain members of the staff,
but stated his belief in the truthfulness of the
matron, and exonerated her from the charges
made against her. On this report being sent
to the ratepayer, he acknowledged receipt of
it in a letter, in which he said " I have but a
languid interest in the question of which
member of the staff lied the most." In an
action of damages for defamation brought by
the matron against the ratepayer the pursuer
sought to innuendo these words as represent-
ing that she had lied in giving evidence at
the enquiry : — Held, that the words w'ould not
bear this innuendo. Couper v. Balfour of
Burleigh (Lord), [1914] S. C. 139— Ct. of Sess.
B. PEIVILEGE.
See also Vol. V. 571, 1659.
1. Absolute.
Annual Meeting of Licensing Justices —
" Court in law or recognised by law " —
Application for Renewal of Licence — Notice of
Objection — Defamatory Statement.] — The rule
of law that defamatory statements made in
the course of proceedings before a Court of
justice or a Court having similar attributes
are absolutely privileged does not apply in the
case of licensing Justices when dealing with
an objection to the renewal of an old on-
licence. They are not in such case a "Court
in law or a Court recognised by law " within
the meaning of the rule. Atttoood v. Chapman,
83 L. J. K.B. 1666; [1914] 3 K.B. 275;
111 L. T. 726; 79 J. P. 65; 30 T. L. E. 596
— Avory, J.
The plaintiff was the holder of an old on-
licence of an inn, and applied for the renewal
thereof at the general annual meeting of the
licensing Justices. The defendant, a book-
maker, gave written notice of his intention to
oppose the application, and alleged various
grounds of objection to the effect that the
plaintiff was not a fit and proper person to
hold the licence. He served copies of this
notice on the plaintiff, on the clerk to the
licensing Justices, on the superintendent of
police, and on a firm of brewers, owners of the
inn. The plaintiff brought an action claiming
damages for libel in respect of the statements
contained in the notice, and the defendant
pleaded that he was taking a necessary and
proper step in a judicial proceeding in serving
the notices, and that the publication thereof
was absolutely privileged : — Held, first, that
the licensing Justices were not a Court of law
to which the privilege attached ; secondly,
that, assuming they were, the defendant, as
objector, being neither a party nor a witness
in the proceedings, was not a person on whose
behalf the privilege could be claimed ; and
thirdly, that, assuming the defendant was such
a person, the privilege did not extend to the
notices served on the superintendent of police
and on the brewers. lb.
Dictum of Lord Halsbury, L.C., in Boulter
V. Kent Justices (66 L. J. Q.B. 787, 789;
[1897] A.C. 556, 561), and adopted by the
Court of Appeal in Rex v. Howard (71 L. J.
K.B. 754; [1902] 2 K.B. 363), followed. lb.
2. Qualified.
Privileged Occasion — Communication Made
in Discharge of Duty — Public Interest — Trade
Protection Association — Confidential Report to
Subscriber in Answer to Enquiry.] — An alleged
defamatory communication made by a trade
protection association to one of its subscribers,
in answer to an enquiry by the latter, — Held by
the Court of Appeal (Vaughan Williams, L.J.,
and Hamilton, L.J. ; Bray, J., dissenting),
having regard to the constitution and method
of business of the association, not to have been
made on a privileged occasion. Greenlands,
Lim. V. Wilmshurst, 83 L. J. K.B. 1; [1913]
3 K.B. 507; 109 L. T. 487; 57 S. J. 740;
29 T. L. R. 685— C.A.
Action for Joint Tort — Separate Defences —
Improper Severance of Damages — Unity of
Verdict and Judgment.] — Where an action has
been brought against several defendants for
an alleged joint tort for which all are found
liable, then, notwithstanding that they have
severed in their defences, only one joint verdict
can be found and one joint judgment can be
entered against them all. 76.
A trade protection association existed for
the purpose of providing for its subscribers, in
answer to their enquiries, confidential informa-
tion as to the credit and financial position of
persons with whom they contemplated dealing,
its work being carried on under the supervision
of a committee of the subscribers, by a
secretary, a solicitor, and various local
correspondents, and its surplus income from
subscriptions being accumulated in the hands
of its trustees and not distributed among the
subscribers. The plaintiffs brought an action
for libel against the association and one of its
correspondents in respect of a communication
sent to a subscriber in answer to his enquiry.
The defendants delivered separate defences,
each pleading (inter alia) that the communica-
tion was published on a privileged occasion
without malice. The jury found express malice
against the correspondent, and they returned
si'parate verdicts against the correspondent for
750/. damages and against the association for
1,000/. damages. The Judge held that the
occasion was not privileged, and gave judg-
ment against the defendants for the above
amounts respectively. The association ap-
pealed : — Held, by Vaughan Williams, L.J.,
and Hamilton. L.J., that the occasion was not
495
DEFAMATION.
496
privileged, but that the damages had been
improperly severed, and further that they
were excessive as against the association, and
therefore that judgment should not be entered
for the plaintiffs, but that there must be a new
trial of the action. Held, by Bray, J., that
the occasion was privileged, that the malice
of the correspondent could not be attributed to
the association, and that judgment should be
entered for the association; but, if this view
were wrong, that for the reasons given by the
other members of the Court there should be a
new trial. Macintosh v. Dun ill L. J.
P.C. 113; [1908] A.C. 390) followed by
Vaughan Williams, L.J., and Hamilton, L.J.,
but distinguished by Bray, J. Ih.
Enquiries involving imputations on the
solvency of persons contained in a paper issued
only to its members by a voluntary society for
the protection of trade are not published on a
privileged occasion. Ellxington v. London
Association for Protection of Trade, 28 T. L. E.
117— Darling, J.
Representation that Person Unworthy of
Commercial Credit — FriYilege.T — A local
association of traders issued to its members a
list of the names and addresses of cei-tain
persons in the district. The list boi'e no title
and contained no comment on the persons
whose names were included ; but it was
admittedly compiled from the " black lists."
A person whose name appeared in the list
brought an action of damages for libel against
the association, in which he averred that the
list was known in the district as the " black
list," and that the defenders by inserting his
name in it had represented that he was
unworthy of business credit : — Held, first, that
the publication of the pursuer's name in the
list was defamatory; but secondly, that the
defenders were privileged in issuing the list,
and as facts inferring malice were not averred
the action must be dismissed. Macintosh v.
Dun (77 L. J. P.C. 113); [1908] A.C. 390)
considered. Barr v. Musselburgh Merchants
Association, [1912] S. C. 174— Ct. of Sess.
Matter of Public Interest — Duty to Com-
municate.]— A publication is made on a
privileged occasion if the matter published is
of public interest and if the party who pub-
lishes it owes a moral, though not necessarily
a legal, duty to communicate it to the public.
The plaintiif publicly attacked an officer of the
Army in his character as such, and the Army
Council, having investigated the matter, found
that the attack was wholly unjustifiable.
Thereupon the defendant, who was at the time
Permanent Under-Secretary for War, pub-
lished, under the instructions of his superiors
in the War Office, an official communique,
including a letter to the officer who had been
attacked by the plaintiff. This letter the
plaintiff alleged to mean that he (the plaintiff)
had been guilty of dishonourable conduct and
had in consequence thereof been removed from
his regiment : — Held, that the letter was pub-
lished on a privileged occasion. Adam v.
Ward, 31 T. L. R. 299— C. A.
Accusation of Dishonesty.] — A cashier, who
had been dismissed from his employment.
brought an action of damages for slander
against the manager of the business. The
pursuer averred that, having discovered short-
ages in the cash, he reported these to his
employer; that the same afternoon, in the
presence of his employer, the defender charged
him with having taken the money, and the
same evening dismissed him from the employ-
ment. Two days later the defender called on
him at his house and, in the presence of his
wife, said to him, " I have come to ask for
explanations ; you must have taken the
money " : — Held, that, on the pursuer's aver-
ments, the occasion when the slander was
uttered in the pursuer's house was not
privileged. Suzor v. Buckingham, [1914]
S. C. 299~Ct. of Sess.
Master's Liability for Servant's Slander.] —
In an action of damages for slander, brought
against a limited company owning a music
hall, the pursuer averred that, while he was
present at a performance in the hall he was
falsely accused by an attendant of indecent
conduct towards a member of the audience,
and that he was taken to a private room where
the slander was repeated by the attendant of
the hall and by the manager. He averred that
these slanderous statements " were made and
persisted in most recklessh', pertinaciously, and
maliciously " : — Held, that the occasion was
privileged, and that as there was no sufficient
averment of facts inferring malice, the action
was irrelevant. Finburgh v. Moss' Empires.
Lim. ([1908] S. C. 928), distinguished.
Gorman v. Moss' Empires, Lim., [1913]
S. C. 1— Ct. of Sess.
3. Rebuttal of Privilege by Evidence of
Malice.
Personal Malice of Servant.] — In an action
of damages brought against a railway company
on account of a slander uttered by the manager
of one of their station bars, the pursuer, who
had been employed as a barmaid at this bar,
averred that, on the occasion of her dismissal
from this post, the manager (who had the
control of the servants employed at the bar)
uttered the slander complained of — a charge of
appropriating the company's funds — knowing it
to be false and with the object of gratifying
his private ill will towards her. The occasion
was admittedly privileged : — Held, that the
action was irrelevant, in respect that the
pursuer's averments disclosed that the malice
alleged as actuating the slander was personal
to the manager and in no way connected with
the business of the defenders, and accordingly
that the defenders could not be held responsible.
Citizeyis' Life Assurance Co. v. Brojon (73 L. J.
P.C. 102; [1904] A.C. 423) and Finhurgh v.
Moss' Empires, Lim. [1908] S. C. 928),
distinguished. Aiken v. Caledonian Railway,
[1913] S. C. 66— Ct. of Sess.
Sufficiency of Averments of Malice — Com-
plaint by Ratepayer to Local Authority —
Refusal to Withdraw Statement.] — The matron
of a hospital belonging to certain local
authorities brought an action of damagCB
against a ratepayer within the hospital district
for defamatory statements contained in two
497
DEFAMATION.
498
letters. The first of these letters was sent by
him to the clerk of one of the local authorities,
reporting certain information received by him
as to the pursuer's conduct as matron (which
he stated, if true, pointed, in his opinion, to
criminal conduct;, and demanding an enquiry.
An enquiry was accordingly held by the
hospital authorities, and thereafter, on the
instigation of the defender, a second enquiry
was held by the Local Government Board. In
both of these enquiries the pursuer was
absolved of blame. The second letter was then
sent by the defender to the Local Government
Board, in which he expressed dissatisfaction
with the result of these enquiries and made
another charge, based on fresh information,
against the pursuer and asked for a further
enquiry. A third enquiry was held, in which
the pursuer was again absolved. The defender,
however, refused to apologise or withdraw the
charges. The defender's letters were admit-
tedly privileged, but the pursuer maintained
that malice sufficiently appeared from — first,
the violent terms in which the statements in
the letters were couched ; secondly, the fact
that they were made without prior enquiry ;
thirdly, the reiteration of them; and fourthly,
the defender's adherence to them and refusal
to apologise : — Held, that these facts and
circumstances were not sufficient to infer
malice, and action dismissed as irrelevant.
Couper V. Balfour of Burleigh (Lord), [1913]
S. C. 492— Ct. of Sess.
Observed, that the defender as a ratepayer
was entitled to lay the facts reported to him
before the proper authorities for investigation,
and was under no duty to enquire into them
before doing so; and that, although the facts
were disproved, he was not bound to apologise
or to withdraw the statements made to the
authorities, although a duty of future reticence
might be imposed on him. lb.
Privilege of Author Destroyed by Malice —
Printers of Libel not Actuated by Malice —
Liability of Printers." — The defendants jointly
published a pamphlet containing libellous
statements concerning the plaintiff. One of the
defendants was the author and the other
defendants were the printers of the pamphlet.
It was admitted that, so far as the author
was concerned, the pamphlet was published
on a privileged occasion. The jury found
that the author was actuated by malice, but
that the printers were not actuated by malice :
— Held, that the privilege of the author
extended also to the printers, but that the
printers were liable as well as the author, inas-
much as that privilege was defeated by the
malice of the author, the publication being a
joint publication, and the author and printers
being joint tortfeasors each tortfeasor was
liable for the malice of the other. Smith v.
Streatfeild, 82 L. J. K.B. 1237; [1913]
3 K.B. 764 ; 109 L. T. 137 ; 29 T. L. K. 707
— Bankes, J.
C. PROCEDURE AND PRACTICE.
See also Vol. V. 611, 1666.
Function of Judge and Jury — Libel — Fair
Comment.] — In an action for libel in which
the defendant pleads fair comment, the
Judge, before leaving the question of fair
comment to the jury, must be satisfied that
the defamatory inference can reasonably be
drawn from the stated facts; if it can, it is
for the jury to say whether it ought to be
drawn. Homing Pigeon Publishing Co. \.
Racing Pigeon Publishing Co., 29 T. L. E.
389— Scrutton, J.
Words not Actionable per se — Malicious
Falsehoods — Special Damage — Loss of Busi-
ness.]— In an action for damage to a business
caused by malicious falsehoods, where the
words are not defamatory nor actionable
per se, the plaintiff must prove actual loss of
customers to whom the words were spoken,
and cannot as a rule give evidence of a general
decline of business. RatcUffe v. Evans
(61 L. J. Q.B. 535; [1892] 2 Q.B. 524)
applied. Leetham v. Rank, 57 S. J. Ill —
C.A.
Quare, whether on proof of actual loss the
jury might award damages in excess of such
actual loss, by way of punishment or example.
76.
Plea of Justification — Particulars.] — In an
action for libel in which the plaintiff by his
statement of claim alleges that the libel means
that he had acted dishonestly in a certain
matter, and, further, that he was a person of
dishonest character, and not fit to hold a
position of trust, and the defendant pleads
justification, he will be allowed to give par-
ticulars of other dishonest acts of the plaintiff
besides those referred to in connection with
the special matter mentioned. Decision of the
Court of Appeal affirmed. Maisel v. Financial
Times, Lim. (No. 1), 84 L. J. K.B. 2145;
112 L. T. 953; 59 S. J. 248; 31 T. L. R. 192
— H.L. (E.)
Acts Subsequent to Publication of Libel.]
— Particulars in support of a plea of justifi-
cation of a libel upon character and reputation,
which allege acts occurring after the publica-
tion of the libel, may be admissible, if the
acts have occurred within a reasonable time
after its publication. In an action for libel
by innuendo that the plaintiff was of a
character and reputation such that he was
likely to have misappropriated the funds of
companies with which he was connected, that
he would have misappropriated the funds of
a certain company if he had had the oppor-
tunity, and that he was an unfit person to be
director of any company, the defendants
pleaded justification, and in support of their
plea delivered particulars of certain alleged
acts of the plaintiff's of a financial nature
which took place two or three months after
the publication of the libel : — Held, that these
acts having taken place within a reasonable
time of the publication of the libel, the par-
ticulars were admissible. Maisel v. Financial
Times, Lim. (No. 2), 84 L. J. K.B. 2148;
[1915] 3 K.B. 336; 113 L. T. 772; 59 S. J.
596 ; 31 T. L. R. 510— C.A.
Falsity of Slanderous Statement Admitted in
Letter of Apology — Subsequent Action for
Repetition of same Statement — Plea of Veritas
499
DEFAMATION— DISCO VEEY.
500
— Bar.] — The defender in an action of
damages for defamation, held (Lord Dundas
dissenting) not barred from pleading Veritas
by having, on a former occasion, written a
letter of apology, admitting that similar state-
ments then made by her were false, and
undertaking not to repeat them. R. v. S.,
[1914] S. C. 193— Ct. of Sess.
Discovery.] — See Discovery.
DEFENCE.
See COUNTY COURT ; PRACTICE.
DEMURRAGE.
See RAILWAY: SHIPPING.
DENTIST.
See MEDICINE.
DEPOSITIONS.
See CRIMINAL LAW.
DESIGNS.
See PATENT.
DETINUE.
Re-entry by Lessors — Electric-light Fila-
ment Lamps Left on Premises by Lessees —
Fixtures.^ — The plaintiffs let electric-light
filament lamp.s on hire to the lessees of a
theatre. The lamps were affixed to their
brackets by the bayonet attachment in
common use for this purpose. The defendants,
who were the owners of the theatre, re-entered
for non-payment of rent, the lamps being then
still on the premises and no demand being
then made for them by the plaintiffs. Shortly
afterwards the plaintiffs claimed them from
the defendants, and as the latter did not give
them up the plaintiffs sued them in detinue :
— Held, that the plaintiffs were not entitled
to recover. British Economical Lamp Co. v.
Mile End Empire, 29 T. L. R. 386— D.
DIRECTOR.
See COMPANY.
DISCLAIMER.
In Bankruptcy.] — See Bankruptcy.
In Specification.]— 5ee P.\tent.
DISCOVERY.
A. Documents.
1. Discovery.
a. In what matters, 500.
b. Who compelled to make, 501.
c. Affidavits of Documents, 501.
d. What Documents, 502.
2. Production, 502.
3. Inspection-, 504.
B. Interrogatories, 504.
C. Objections to Disclosure.
1. Legal Professional Confidence, 508.
2. Evidence of Party's Title, 509.
A. DOCUMENTS.
See also Vol. V. 693, 1678.
1. Discovery.
a. In what Matters.
Order for Account — Special Referee — Motion
for Receiver after Judgment — Discovery in Aid
of Motion — " Documents relating to any
matters in question."] — The defendants and
the plaintiff had business relations together
and the plaintiff commenced an action alleging
a partnership and claiming a receiver of the
assets of the firm and an account. Upon a
motion for a receiver, a consent order was
made for the taking of the account between
the parties by a special referee. The account
was taken before the referee, who ordered
discovery. The plaintiff then alleged that the
defendants were acting improperly in getting
in the debts owing to the firm, and gave notice
of motion for the appointment of a receiver,
which motion was ordered to be heard with
witnesses. The plaintiff then applied to the
501
DISCO VEEY.
502
Court for an order for further discovery and
inspection of documents for the purposes of
the motion : — Held, that, if the order of the
special referee for discovery were insufficient,
application should have been made to the
referee for a further order ; that if the matters
to which the discovery claimed related arose
out of the judtrment, a sufficient order could
be made by the special referee ; if such matters
did not arise out of the judgment, they should
be the subject of a new action. Korkis v.
Weir d Co., 110 L. T. 794— C. A.
b. Who Compelled to Make.
Guardian Ad Litem to Person of Unsound
Mind — Order.] — The guardian ad litem of a
person of unsound mind, but not so found by
inquisition, can be ordered to give discovery
of documents in a suit for nullity of marriage
or for restitution of conjugal rights. Paspati
V. Paspati, 83 L. J. P. 56; [1914] P. 110;
110 L. T. 751; 58 S. J. 400; 30 T. L. E. 390
—Evans, P.
c. Affidavit of Documents.
Person of Unsound Mind not so Found —
Next Friend.] — The High Court has no
jurisdiction to order the next friend of a
person of unsound mind not so found by
inquisition to make an affidavit as to docu-
ments. Dyke v. Stephens (55 L. J. Ch. 41;
30 Gh. D."l89) followed. Higginson v. Hall
(48 L. J. Ch. 250; 10 Ch. D. 235) dissented
from. Pink v. Sharwood (No. 1), 82 L. J.
Ch. 542; [1913] 2 Ch. 286; 108 L. T. 1017;
57 S. J. 663— Eve, J.
Further Affidavit.] — Although as a general
rule it is not permissible to go behind the
affidavit of documents in an application for
discovery, in the absence of an admission
either in the affidavit itself or in some other
document shewing that there are other
documents which ought to have been included,
the rule is qualified where the basis on which
the affidavit of documents has been made turns
out to have been wrong. If the party making
the affidavit has misconceived his case, so
that the Court is practically certain that if
he had conceived it properly and had acted
upon a proper view of the law he would have
disclosed further documents, then the Court
can refuse to recognise an affidavit as con-
clusive and order a further affidavit. British
Association of Glass-Bottle Manufacturers,
Lim. V. Nettlefold, 81 L. J. K.B. 1125 ; [1912]
A.C. 709; 107 L. T. 529; 56 S. J. 702—
H.L. (E.)
In an action for calls, brought by the appel-
lants against the respondent, the respondent
alleged that the ajjpellants were really a trade
union, and their registration was void ; and
secondly, that they were an illegal combination
in restraint of trade. The respondent obtained
an order against the appellants for an affidavit
of documents. An affidavit of documents was
delivered. In the particulars the respondent
alleged the existence of a certain contract
between the appellants and a foreign company.
The appellants alleged that no such contract
was relevant. The Court of Appeal, revers-
ing the order of Scrutton, J., ordered produc-
tion of the contract. On the appellants
declining to file a further affidavit, the Court
of Appeal, reversing the order of Bucknill, J.,
ordered a further and better affidavit of dis-
covery, and the House affirmed this decision.
lb.
Specific Document — Application made Ex
parte.] — An application under the Irish
Order XXXI. rule 20 (3) [corresponding to
Order XXXI. rule 19a (3)] for an order
requiring a party to state by affidavit whether
a specific document is or has at any time been
in his possession or power may be made
ex parte. Henty d Gardners, Lim. v.
Beckett, [1914] 2 Ir. R. 206— Molony, J.
d. What Documents.
Newspaper Competition — Failure to Obtain
Prize — Action for Damages — Successful
Coupons.] — The plaintiff was a competitor in a
prize competition which was advertised in a
newspaper belonging to the defendants and
which consisted in constructing the most clever,
apt, and original sentences in accordance with
certain rules. The prizes were to be awarded
after careful consideration by competent judges
and the editor's decision was to be final. The
plaintiff, not having been awarded a prize,
brought an action against the defendants for
breach of contract and applied for discovery of
the coupons in respect of which prizes had
been awarded : — Held, that as these docu-
ments were not relevant to any question in
issue, the plaintiff was not entitled to discovery
of them. Angell v. John Bull. Lim., 59 S. J.
286; 31 T. L. E. 175— C. A.
Affidavit — Further Affidavit — " Specific
documents."] — To justify an application for
discovery of documents under rule 19a (3) of
Order XXXL, the party making the applica-
tion must in his affidavit name and specify,
so that they can be identified, the particular
documents of which he desires discovery ; a
general allegation that certain classes of docu-
ments— for example, telegrams from A to B
between 1900 and 1906 containing instructions
or requests or comments, as to enquiries upon
specified subjects — are in the possession of
the opposite party and ought to be produced
is not sufficient. Per Fletcher Moulton. L.J.
— Eule 19a (3) is not a process of discovery,
but only a process in aid of discovery, and
documents must be so specified that they can
at once be identified. Huntley v. Backworth
Collieries, [1911] W. N. 34— C. A.
2. Production.
As between Co-defendants — Rights to be
Adjusted.] — The plaintiff claimed to be
entitled to a fractional share of certain com-
missions alleged to be due to one defendant J.
from his co-defendants, C. & Co., and asked
for a declaration accordingly and for payment
of his share. By their defence C. & Co. denied
all liability and alleged that they had a claim
against J. for damages for misrepresentation
which could be set off against any claim for
commission by J. or any persons claiming
503
DISCOVEEY.
504
under him. The plaintiff having obtained
discovery from J., C. & Co. applied under
Order XXXI. rule 14 for production to them
of the documents stated in J.'s affidavit of
documents to be in his possession or power : —
Held (Swinfen Eady, L.J., dissenting), that
there were not any rights to be adjusted
between J. and C. & Co. in the action, in the
sense that there was any matter in issue
between J. and C. & Co. which the decision
of the action would render res judicata as
between them ; and held therefore that C. &
Co. were not entitled to an order for produc-
tion. Sharo v. Syyiith (56 L. J. Q.B. 174;
18 Q.B. D. 193) explained and applied.
Birchal v. Crisp d Co., 82 L. J. Ch. 442;
[1913] 2 Ch. 375; 109 L. T. 275— C. A.
Slander Action — Imputations of Insolvency
and Mismanagement against Trading Com-
pany.]— In an action of slander brought by a
limited company trading on a co-operative
system and registered as a friendly society,
tile defendant pleaded {inter alia) the truth
in their ordinary sense of the words spoken
so far as they were allegations of fact, and
fair comment as regards expression of opinion.
The defamatory matter was contained in a
speech delivered by the defendant, and the
only allegation of fact in it were statements
of the assets and liabilities of the society on
the expiration of three several years. Under
an order for discovery the society's secretary
and manager made an affidavit, the schedule
to which disclosed the balance sheets for these
years, and also the society's ledgers, books of
account, and bank books, claiming no privi-
lege. In accordance with notice by the
defendant the society produced the balance
sheets for his inspection, but declined to
produce the remaining scheduled documents.
The balance sheets agreed with the figures
quoted by the defendant in his speech. On
the society admitting on the order the truth
of the figures quoted by the defendant and
of the balance sheets, the Court declined to
order the production of the society's books.
Kent Coal Concessions: v. Dncjitid (79 L. J.
K.B. 423. 872: [1910] 1 K.B. 904: [1910]
A.C. 452) distinguished. Irish Agricultural
Wholesale Society v. McCowan, [1913]
2 Ir. R. 313— C. A.
Owners' Books — Collision — Value of Sunken
Lightship.! — The plaintiffs' lightship, while
at her station in the Mersey, was run into
and sunk by the defendants' steamship. The
defendants admitted liability, agreed to a
reference, and applied for an order to inspect
the plaintiffs' books with a view to ascertain
the figures upon which the plaintiffs based the
value they set upon their vessel : — Held, that
the defendants were entitled to an order for the
production of the books forthwith, as the only
material question was the value of the light-
ship at the date of the casualty, and it would
assist the defendants if, before going to the
reference, they were in possession of the
figures relating to the original cost, and
subsequent depreciation in value, of the light-
ship. The Pacuare. 81 L. J. P. 143;
[1912] P. 179; 107 L. T. 252; 12 Asp. M.C.
222— C.A.
3. Inspection.
Action against Company — Effect of Articles
of Association.] — Article 83 of the articles of
association provided that the managers should
from time to time determine whether, and to
what extent, and at what time and place,
and under what conditions or regulations the
accounts and books of the company or any of
them shall be open to the inspection of the
members, and no member should have any
right of inspecting any account or book or
document of the company, except as conferred
by statute or authorised by the managers.
In an action against the company, — Held,
that an order for discovery must be made.
The above article, in such a case as the pre-
sent, could not be utilised adversely, and to
allow such an article to prevail over the Eules
of Court might, in some cases, be allowing it
to be an engine of dishonesty. Cartland v.
British and South American Steam Naviga-
tion Co., [1912] W. N. 110— Eve, J.
Transcript of Shorthand Note of Proceedings
in Actions — Note Taken for Purpose of Future
Action.] — The defendant to an action in the
High Court had caused a shorthand note of
the proceedings in two prior actions in the
County Court, to which he had been a party,
to be taken and a transcript made. The note
related to matters in question in the High
Court action, and had been made expressly
for the purposes of such an action. Upon
application by the plaintiff for inspection of
the transcript, — Held (Channell, J., dissent-
ing), that the transcript, being a mere repro-
duction of material which was publici juris,
was not privileged, and must be produced
for inspection. Nordon v. Defries (51 Ij. J.
Q.B. 415; 8 Q.B. D. 508) overruled. Lambert
V. Home. 83 L. J. K.B. 1091; [1914] 3 K.B.
86; 111 L. T. 179; 58 S. J. 471; 30 T. L. R.
474— C.A.
Owners' Books — Collision — Value of Sunken
Lightship. 1 — The plaintiffs' lightship, while
at her station in the Mersey, was run into
and sunk by the defendants' steamship. The
defendants admitted liability, agreed to a
reference, and applied for an order to inspect
the plaintiffs' books with a view to ascertain
the figures upon which the plaintiffs based the
value they set upon their vessel : — Held, that
the defendants were entitled to an order for
the production of the books forthwith, as the
onlv material question was the value of the
light.ship at the date of the casualty, and it
would assist the defendants if, before going
to the reference, they were in possession of
the figures relating to the original cost, and
subsequent depreciation in value, of the light-
ship. The Pacuare. 81 L. J. P. 143;
[1912] P. 179; 107 L. T. 252; 12 Asp. M.C.
222— C.A.
1 B. INTERROGATORIES.
I
I See also Vol. V. 804. 1682.
Action to Enforce Charge to Secure Loan —
Defence that Plaintiff was an Unregistered
Money-lender — Facts Relevant to the Issue —
505
DISCOVEEY.
506
Disclosure of other Loan Transactions, but not
of Borrowers' Names.] — A London tailor
brought au action to enforce a ciiarge to
secure a loan with interest at 10 per cent.
The charge, which was in 1906 given to the
plaintiff by the borrower, was upon certain
moneys belonging to the borrower in the
hands of the trustees of a private Act of
Parliament, passed in 1904, being the balance
of a sum which they were by such Act
authorised to raise for the payment of his
then existing debts. The trustees, the defen-
dants to the action, disputed the charge, and
by their defence alleged that the plaintiff was,
and at the date of the alleged charge was,
a money-lender within the meaning of the
Money-lenders Act, 1900, s. 6, and was not
registered under the Act, and that by reason
thereof his alleged charge was illegal and
could not be enforced. Interrogatories ad-
ministered by the defendants to the plaintiff
in reference to his other loan transactions
were held by Joyce, J., to be inadmissible : —
Held (Fletcher Moulton, L.J., dissenting),
that the defendants were entitled to interro-
gate the plaintiff as to any, and if so what,
other loans he had made, and on what securi-
ties, during the period of twelve months before
the date of the loan in question in the action,
and as to the dates of such loans and the
dates for repayment and the amount made
payable on each security, and the actual
amounts paid in cash in respect thereof and
the rate of interest payable and commission
(if any) charged or deducted, and also whether
any of such loans were renewals of previous
loans, and, if so, the dates of the renewals ;
but that the defendants were not entitled to
require the plaintiff to disclose the names of
the borrowers, all these enquiries being
directed to facts substantially relevant to the
existence or non-existence of the fact whether
the plaintiff was carrying on at the critical
period the business of a money-lender, which
was the fact directly in issue. Observations
of Lord Esher. M.K., in Marriott v. Chamber-
lain (5.5 L. J. Q.B. 448; 17 Q.B. D. 154)
applied. Nash v. Layton. 80 L. J. Ch. 636;
[1911] 2 Ch. 71; 104 L. T. 834— C.A.
Action for Defamation — Allegation of Publi-
cation to Unnamed Person — Right of Plaintiff
to Interrogate Defendant in Support of Allega-
tion.]— As a general rule the plaintiff in an
action of defamation is not allowed to allege
a specific publication to a named person and
further publications t-o unnamed persons, and
then to interrogate the defendant as to whether
there have been any such further publications.
Russell V. Stubbs, Lim. (52 S. J. 580), con-
sidered. Barham v. Huntingiield (Lord),
82 L. J. K.B. 752; [1913] 2 K.B. 193;
108 L. T. 703— C.A.
Newspaper — Fair Comment — Fair and
Accurate Report of Proceedings of a Public
Meeting — Interrogatories to Prove Malice. 1 —
The plaintiff claimed damages for an alleged
libel contained in the defendants' newspaper.
The defendants pleaded, first, fair comment;
and secondly, that the alleged libel formed
part of a fair and accurate report of a public
meeting within the meaning of section 4 of
the Law of Libel Amendment Act, 1888; the
I matter published was of public concern and
for the public benefit, and the newspaper waa
! a newspaper within the above section. The
plaintiff did not deliver a reply alleging
express malice. He sought to interrogate the
j defendants as to whether they had been
I requested to attend the said meeting, and
I whether they had received rem.uneration for
i reporting the proceedings. The interrogatories
were consistent with the plaintiff having in
I fact no information on which to found his
interrogatories. The Judge, at chambers,
affirming the Master, refused to allow the
interrogatories : — Held, that, although the
i interrogatories were not necessarily inadmis-
I sible, the Court would not interfere with the
I discretion of the Judge at chambers. Dawson
V. Dover and County Chronicle, 108 L. T. 481;
' 29 T. L. R. 373— C.A.
Defence of Privilege — Allegation of
Express Malice — Defendant's Sources of Infor-
mation— Nature of Information." — It is a
proper exercise of the discretion of the Judge
in chambers for him to refuse to allow the
defendant in a libel action to be interrogated
as to the sources of his information if that
information is of interest to a large number
of persons and the defendant occupies a con-
fidential and responsible position. Adam v.
Fisher, 110 L. T. 537 ; 80 T. L. E. 288— C.A,
Malicious Prosecution — Information which
Induced Defendant to Prosecute Plaintiff —
Facts Shewing Reasonable or Probable Cause.]
— In an action for malicious prosecution the
plaintiff sought to administer to the defen-
' dants the following, among other, interroga-
! tories : "4. What information (if any) had
you that induced you to prosecute the plain-
j tiff for stealing gas? What steps (if any) had'
you taken before commencing the said prose-
cution to ascertain whether the charge was
true or not? What grounds (if any) had you
j for supposing that the plaintiff had committed
1 the offence charged? Did you before yon
j commenced the said prosecution take any and
j what precautions or make any or what
j enquiries as to the truth of the said charge,
; and what was the result of each such enquiry?
, 5. What are the facts and circumstances on
I which you rely as shewing that you had
I reasonable and proper cause for the said
I prosecution?" — Held (Kennedy, L.J., dissent-
ing), that the interrogatories ought not to be
allowed ; interrogatory 4 being one of a kind
which, as a general rule, and in the absence
of special circumstances, should not be allowed
in an action for malicious prosecution, as
otherwise it would become very difficult to get
persons having reason to suppose that a crime
had been committed to give information with
a view to its detection and punishment ; and'
interrogatory 5 being clearly inadmissible.
Maass v. Cas Light and Coke Co., 80 L. J.
K.B. 1313: [19li] 2 K.B. 543: 104 L. T.
767: 55 S. J. 566: 27 T. L. R. 473— C.A.
Facts not Directly in Issue, but Relevant to
Facts in Issue — Action for Infringement of
Patent — Names of Manufacturers.^ — In an
action to restrain the infringement of patents--
507
DISCOVERY.
508
relating to the manufacture of incandescent
electric lamps the plaintiffs delivered interro-
gatories. The defendants in answer admitted
selling certain alleged infringing lamps, but i
objected to say by whom the lamps were i
manufactured and supplied. The plaintiffs \
sought this information to enable them to
identify the process of manufacture, of which
the defendants were ignorant and which the
plaintiffs alleged could not be ascertained by
analysis : — Held, that the information sought
was relevant to the existence or non-existence
of the fact of infringement which was directly
in issue, and that the interrogatories must
therefore be answered. Osram Lamp Works,
Lim. V. Gabriel Lamp Co., 83 L. J. Ch. 624;
[1914] 2 Ch. 129; 111 L. T. 99; 31 E. P. C.
230; 58 S. J. 535— C.A.
Object of Interrogatories to Obtain Names i
of Opposite Party's Witnesses.] — A party is i
not entitled to administer interrogatories to
his opponent when the object of the interro-
gatories is to ascertain the names of the
persons whom his opponent proposes to call
as witnesses in support of his case. Per
Vaughan Williams, L.J. : A party, in order
to obtain by means of interrogatories the i
names of persons whom his opponent intends
to call as his witnesses, must shew that it is
necessary for him to have these names for
the purpose of establishing some material fact,
not necessarily essential to the issue in the
case, but some fact that is necessary to the |
proof of his case. Knapp v. Harvey, 80 L. J. j
K.B. 1228; [1911] 2 K.B. 725; 105 L. T. 473
—C.A.
Recovery of Possession of Land — Roadside
Strips — Acts of Ownership."! — In an action to
recover possession of two strips of land forming
part of one continuous strip lying on one side
of a road, and alleged to be waste within the
plaintiffs' manor, the plaintiffs intimated that
at the trial they intended to shew acts of
ownership by them over parts of the strip
contiguous to and at greater distance from
the parts of the strip in dispute in the action.
They proposed to interrogate the defendants
as to facts concerning the defendants' acquisi-
tion of other parts of the strip not in dispute
lying between inclosures of the defendants
and the road : — Held, that the interrogatories
ought to be allowed, the answers to be admis-
sible when the plaintiffs had established that
they were the owners of the manor, and that
the whole strip lay within the manor, and
was of one continuous character. LeeTce v.
Portsmouth Corporation (No. 1). 106 L. T. 627
—Eve, J.
Documents in Possession of Secretary of
Trade Union.] — The defendant in an action
for libel being called upon to give discovery of
documents, made an affidavit in which he
gave in a schedule a list of documents which
he said were in the possession and custody
of the trade union of which he was general
secretary, and as to which he stated that he
had no power to produce them as they belonged
to the trade union. The plaintiff applied for
an order that he might be at liberty to inter-
rogate the defendant as to the contents of the
documents scheduled to his affidavit : — Held,
that the application must be refused, inasmuch
as a person in the position of a servant cannot
be required to answer an interrogatory asking
him to give the contents of documents in the
possession of his master. Balfour v. Tillett,
57 S. J. 356 ; 29 T. L. E. 332— C.A.
No Personal Knowledge — Objection to Seek
Information — Confidential Documents — Suffi-
ciency of Answer.] — The plaintiff, who was
a shareholder in a guarantee society, having
brought an action against the chairman for
false representations alleged to have been
made b}' the defendant to the plaintiff at a
general meeting, administered to the defendant
an interrogatory as to whether at the date of
the meeting the society had taken over certain
properties. The defendant answered that
certain of the properties had been taken over,
and that certain others had been taken
possession of owing to failure of the mort-
gagors, and he gave the names of these two
sets of properties, but he said that he had no
personal knowledge with regard to the remain-
ing properties and submitted that he was not
bound to seek information about them from
confidential documents obtained for the pur-
pose of his defence : — Held, that this was a
sufficient answer. Seal v. Turner, 30 T. L. E.
227— C.A.
C. OBJECTIONS TO DISCLOSUEE.
See also Vol. V. 882, 1687.
1. Legal Professional Confidence.
Action by Company against Shareholder —
Counterclaim — Opinion of Counsel.] — The rule
that where a company takes the opinion of
counsel and pays for it out of the funds of
the company a shareholder has a right to see
it does not apply where the company has
brought an action against the shareholder,
even although the shareholder has set up a
counterclaim alleging the invalidity of the
resolution authorising the action. Woodhouse
d Co. V. Woodhouse, 30 T. L. E. 559— C.A.
Briefs in Previous Proceedings — Probate.]
— In a probate suit, the defendants, alleging
that the deceased was not of sound memory
and understanding, asked for production of
the briefs which had been prepared by one
of the plaintiffs as solicitor for the deceased
in certain proceedings which had been taken
against her, and which the defendants alleged
contained matter material to the issue of the
deceased's state of mind : — Held, that the
defendants were not entitled to production
of the briefs, which had been confidentially
prepared by a solicitor for counsel to use or
not as thev might think fit. Cooper, In re;
Curtis V. 'Beaney, 80 L. J. P. 87; [1911]
P. 181; 105 L. T. 303; 27 T. L. E. 462—
Bargrave Deane, J.
Affidavit of Documents brought into Exis-
tence for Purpose of Litigation.] — In an action
on a policy of marine insurance to recover a
constructive total loss the underwriters, in
making discovery of documents, claimed
509
DISCOVERY— DISTRESS.
510
privilege from production in respect of certain
cables and correspondence which passed
between the Salvage Association and their
agents abroad after notice of abandonment had
been given and refused and before the com-
mencement of the action, " such cables and
correspondence being with regard to the
subject-matter of this litigation and expressing
or for the purpose of obtaining advice or
evidence to be used in it or for the purpose of
leading to the obtaining of evidence to enable
the defendants' solicitors properly to conduct
the action on their behalf " : — Held, a good
claim of privilege. Birmingham and Midland
Motor Omnibus Co. v. London and North-
western Railway (83 L. J. K.B. 474 ; [1913]
3 K.B. 850) followed. Adam Steamship Co.
V. London Assurance Corporation, 83 L. J.
K.B. 1861; [1914] 3 K.B. 1256; 111 L. T.
1031; 12 Asp. M.C. 559; 20 Com Cas. 37;
59 S. J. 42— C.A.
Sufficiency of Claim of Privilege — Extent
of Privilege.] — In an action against a railway
company to recover damages for the loss by
fire of goods stored with the company, an
affidavit of documents filed on behalf of the
defendants stated that the defendants objected
to produce certain documents on the ground
that they were " privileged and came into
existence and were made after this litigation
was in contemplation and in view of such
litigation for the purpose of obtaining for and
furnishing to the solicitor of the defendant
company evidence and information as to the
evidence which could be obtained and other-
wise for the use of the said solicitor to enable
him to conduct the defence in this action and
to advise the defendants " : — Held, that the
language used in the affidavit brought the case
within Southwark and Vauxhall Water Co. v.
Quick (47 L. J. Q.B. 258; 3 Q.B. D. 315),
and not within Anderson v. British Bank of
Columbia (45 L. J. Ch. 449; 2 Ch. D. 644),
and stated a good claim of privilege ; and that
the privilege was not limited to documents
which came into existence after the plaintiffs
first claimed compensation from the defen-
dants. Birmingham and Midland Motor
Omnibus Co. v. London and 'North-Western
Railway, 83 L. J. K.B. 474; [1913] 3 K.B.
850; 109 L. T. 64; 57 S. J. 752— C.A.
2. Evidence of Party's Title.
Privity of Title — Attorney-General.]— The
defendants to an injunction on behalf of the
Crown claiming part of the foreshore alleged
a title derived by various mesne conveyances
from a grantee from the Crown. In their
affidavit of documents the defendants claimed
privilege for these conveyances as solely relat-
ing to their own title : — Held, that as the
Crown was prima facie entitled to the fore-
shore, the Attorney-General could insist on the
production, in order to see that the alleged
grant was vested in the defendants. Semble,
the same rule holds good as between two sub-
jects where one claims by privity of title from
the other. Att.-Cen. v. Storey, 107 L. T. 430;
56 S. J. 735-C.A
DISORDERLY HOUSE.
Music Licence — Cinematograph Licence —
Application by Company — Nationality of
Shareholders — Alien Enemies — Discretion of
Licensing Authority.]— While a state of war
existed between Great Britain and Germany
and between Great Britain and Austria the
London County Council, acting as the licensing
authority under the Disorderly Houses Act,
1751, and the Cinematograph Act, 1909, re-
fused applications for a renewal of music and
cinematograph licences made by an English
company, on the ground that at the outbreak
of war the majority of the shares of the com-
pany were held by German or Austrian subjects
resident abroad, and that three out of the six
directors were German subjects resident abroad.
The company obtained rules nisi for writs of
mandamus directed to the London County
Council, commanding them to hear and deter-
mine the applications for such licences accord-
ing to law, on the ground that in determining
the applications they had been actuated by
extraneous considerations — namely, the share-
holding and nationality of the shareholders
and directors of the company : — Held, by the
Court of Appeal, affirming the decision of the
Divisional Court, discharging the rules, that,
whether or not the alien enemy shareholders
had a right to vote by proxy in the affairs of
the company, the London County Council were
entitled to take into consideration the fact
that the majority of the shares were held by
alien enemies, and in the exercise of their
discretion to refuse to renew the licences on
that ground. Rex v. London County Council;
London and Provincial Electric Theatres,
Ex parte, 84 L. J. K.B. 1787; [1915] 2 K.B.
466 ; 113 L. T. 118 ; 79 J. P. 417 ; 13 L. G. R.
847 ; 59 S. J. 382 ; 31 T. L. R. 329— C.A.
The decision in London County Council v.
Bermondsey Bioscope Co. (80 L. J. K.B. 141 ;
[1911] 1 K.B. 445), to the effect that the
terms and conditions which, by section 2,
sub-section 1 of the Cinematograph Act, 1909,
a county council may impose on the grant of
a cinematograph licence, are not confined to
provisions for securing safety, approved. lb.
DISTRESS.
A. For Rent and Charges on Land.
1. Persons Distraining , 511.
2. What Goods Distrainable and what not,
511.
3. How Goods Disposed of, 513.
4. Declarations under Law of Distress
Amendmeiit Act, 1908, 514.
B. Damage Feasant, 514.
C. Costs of Distress, 515.
D. Remedy for Wrongful, Irregular, or
Excessive Distress, 615.
E. For Rates. See Rates.
F. Restraining Distress where Comi-any in
IjIQuid.^tion. See Company (Winding-up).
511
DISTEESS.
512
A. POR RENT AND CHARGES ON L/AND.
See also Vol. V. 976, 1694.
1. Persons Distraining.
Surrender of Tenancy — Tenant Remaining
in Possession — Execution — Claim by Land-
lord for Rent/ — Sections 6 and 7 of 8 Anne,
c. 14, do not apply to a case of the seizure of
goods by an execution creditor, but are con-
fined to cases between landlord and tenant.
Section 160 of the County Courts Act, 1888,
has no application to sections 6 and 7 of
8 Anne, c. 14. Lewis v. Davies, 83 L. J.
K.B. 598; [1914] 2 K.B. 469; 110 L. T. 461;
30 T. L. R. 301— C.A.
Decision of the Divisional Court (82 L. J.
K.B. 631; [1913] 2 K.B. 37) reversed. lb.
2. Wh.'\t Goods Distr.ainable and what not.
Piano Hired by Lessee of Theatre — Trade
Custom — Goods in Possession, Order, or
Disposition of Lessee — Reputed Ownership —
Liability of Piano to Distress.] — In the
absence of evidence establishing a custom that
pianos are so constantly hired to lessees of
theatres for theatrical purposes as to exclude
the doctrine of reputed ownership, the Court
cannot assume as a matter of law that the
lessee of a theatre is not the true owner of a
piano which is in the theatre. In such a case
the piano is not exempted by the Law of Dis-
tress Amendment Act, 1908, from liability to
distress by the landlord of the theatre.
Chappell V. Harrison, 103 L. T. 594;
75 J. P. 20; 27 T. L. R. 8.5— D.
Goods Comprised in Hire-purchase Agree-
ment— Notice by Owner Purporting to Ter-
minate Agreement — Demand for Possession
of Goods — Subsequent Seizure by Landlord —
Declaration by Owner." — Goods which are
in the possession of a tenant under a hire-
purchase agreement are comprised in a
hire-purchase agreement within the meaning
of section 4 of the Law of Distress Amend-
ment Act, 1908, notwithstanding that a
demand for possession of the goods has been
made by their owner upon the tenant, and
consequently such goods are not exempt from
being distrained at the instance of the landlord
for arrears of rent. London Furnishing Co.
V. Solomon iiiifra) not followed. Hackney
Fvrnishing Co. v. Watts, 81 L. J. K.B. 993;
[1912] 3 K.B. 225 ; 106 L. T. 676 ; 28 T. L. R.
417— D.
The plaintiffs let furniture to one L. under
a hire-purchase agreement which by clause 6
provided that the hirer should regularly and
punctually pay the rent of the house where the
furniture was and should " keep the articles
of furniture . . . free and exempt from all
legal process"; and by clause 8 it provided
" that if the hirer do not duly perform and
observe this agreement the owners may re-
take possession of the said furniture." L.
became in arrears with her rent to the
defendant, her landlord, and thereupon the
plaintiffs wrote to L. that in consequence of
her non-compliance with the terms of the
agreement they had decided to terminate the
same. They sent a carman to remove the
furniture, but he was informed that rent was
in arrear, and the furniture was not allowed
to be removed. The plaintiffs thereupon
served a declaration on the defendant under
section 1 of the Law of Distress Amendment
Act, 1908, claiming the furniture. Notwith-
standing such declaration, the defendant dis-
trained upon the furniture : — Held, that from
the time the plaintiffs gave notice terminating
the agreement L. had no property or bene-
ficial interest in the furniture, and that as the
plaintiffs had served a declaration under sec-
tion 1 of the Law of Distress Amendment Act,
1908, the defendant was not entitled to dis-
train on the furniture. London Furnishing
Co. V. Solomon. 106'L. T. 371; 28 T. L. R.
265— D.
Provision Determining Agreement ipso
Facto on Breach by Hirer — Power on such
Determination to Enter and Re-take Goods —
Continued Existence of Agreement — Goods
"comprised" therein.] — A hire-purchase
agreement provided that the hirer of the goods
therein comprised should pay punctually the
weekly rent commencing on a specified date
and all expenses incurred in the collection of
any arrears thereof ; that if the hirer did not
duly perform and observe the agreement, it
should ipso facto be determined, and the hirer
should return the goods to the owners, and the
owners should be entitled to re-take possession
of the same and for that purpose to enter upon
the premises ; and that the hirer should remain
liable for arrears of hire up to the date of the
determination of the agreement. The hirer
committed a breach of the agreement by
failing to pay punctually an instalment of
rent, and the owners gave him notice
terminating the agreement, and then en-
deavoured to enter and re-take possession of
the goods. These had been distrained for rent
by the hirer's landlords. The owners, having
served the landlords with a declaration under
section 1 of the Law of Distress Amendment
Act, 1908, that the goods belonged to them,
brought an action against them for illegal
distress under section 2 of the Act : — Held,
that by reason of the provision conferring on
the owners the right of entering and re-taking
the goods, and of the provisions relating to
the hirer's continued liability for arrears, and
for expenses in the collection thereof, the
agreement did not determine on the breach
by the hirer, but was in existence at the date
of the distress, and that, consequently, the
goods were then comprised in a hire-purchase
agreement within the meaning of section 4,
sub-section 1 of the Act, and by virtue of
that sub-section not within the provisions of
the Act exempting from distress the goods of
persons other than a tenant. Jay's Furnish-
ing Co. v. Brand d Co., 84 L. J. K.B. 867;
[1915] 1 K.B. 4.58; 112 L. T. 719; 59 S. J.
160: .31 T. L. R. 124— C.A.
Decision of the Divisional Court (83 L. J.
K.B. 505; [1914] 2 K.B. 132) affirmed. lb.
Statement by Bailiff that Plaintiff's Cattle
not Distrainable — Subsequent Seizure of
Cattle — Estoppel." — The defendant J. was
the landlord of a farm the tenant of which
was in arrear with his rent. On the farm the
513
DISTRESS.
514
plaintiff had cattle grazing. J. instructed the [
defendant D., a bailiff, to distrain for the rent
due, and the fact that a distress was likely to
be levied came to the knowledge of the plain-
tiff, who thereupon had a conversation with
the defendant D. and said that he would move
his cattle off the farm. D. said, " Don't be
such a fool; I can't touch your cattle, because
you took the keep by auction." On that the
plaintiff, believing the cattle to be safe, took
no steps to remove them ; but when a distress
was subsequently levied four of the plaintiff's
cattle were seized. In an action for wrongful
distress the jury found that D. or J. led the
plaintiff to believe that he was not going to,
and had no right to, levy distress on the
plaintiff's cattle : — Held, that the statement
by D. was either a misstatement of law or
a declaration of intention to abandon a legal
right to distrain, and that in neither case
could it create an estoppel. Cressivell v.
Jeffreys, 28 T. L. R. 413— D. Reversed on
other grounds, 29 T. L. R. 90— C. A.
3. How Goods Disposed of.
Purchase of Goods Distrained by Landlord
at Appraised Value — User of Goods by Land-
lord— CoHYersion by Landlord.] — The defen-
dants in 1902 granted to one J. a yearly
tenancy of a certain seam of coal, together
with the right to take and work all the coal
in that seam upon payment quarterly of cer-
tain royalties. The agreement contained a
provision that if the royalties were unpaid for
thirty days after the stipulated quarter days
the landlord might distrain. In 1908 J.
assigned to the plaintiffs all the plant and
machinery used in the colliery, together with
the right to get coal in his name, under the
agreement upon payment of all such sums of
money as should become due in respect of
the royalties. The plaintiffs hired from a
waggon company two colliery waggons at a
certain rent payable quarterly. The defen-
dants in August, 1910, distrained upon the
colliery for money due from J. in respect of
royalties under the agreement, and seized the
two colliery waggons, and also five pit ponies,
the property of the plaintiffs. The ponies
and waggons were duly appraised, and the
defendants purported to buy them at their
appraised value. The defendants subse-
quently used the ponies for their own pur-
poses, but they returned the waggons to the
waggon company on a demand being made by
that company for them. At the time of the
seizure no rent was due by the plaintiffs to
the waggon company for the hire of the
waggons : — Held, that the user by the defen-
dants of the ponies for their own purposes and
the return by them of the waggons were not
irregularities or unlawful acts committed after
the distress by the party distraining within
section 19 of the Distress for Rent Act, 1737,
so as to entitle the plaintiffs to recover only
compensation for the special damage which
they had sustained thereby, but were acts
done by the defendants in their capacity as
owners and not as distraining landlords; and
that, inasmuch as the purported purchase by
the defendants of the ponies and waggons was
void, such acts constituted a conversion by the
defendants of the ponies and waggons which
entitled the plaintiffs to recover their full value
from the defendants. Plasycoed Collieries Co.
V. Partridge, Jones d- Co., 81 L. J. K.B. 723;
[1912] 2 K.B. 345; 106 L. T. 426; 66 S. J.
327— D.
4. Declarations under Law of Distress
Amendment Act, 1908.
Rent in Arrear — Hire-purchase Agreement
by Wife of Tenant — Declaration by Owner of
Goods Hired — Action by Owner of Goods for
Illegal Distress.] — It is not essential to the
validity of a declaration under section 1 of the
Law of Distress Amendment Act, 1908, that
it should be a statutory declaration in the
form prescribed by the Statutory Declarations
Act, 1835. Rogers v. Martin, 80 L. J. K.B.
208 ; [1911] 1 K.B. 19 ; 103 L. T. 527 ; 75 J. P.
10; 55 S. J. 29; 27 T. L. R. 40— C.A.
A declaration under the Law of Distress
Amendment Act, 1908, may be properly made
on behalf of a firm by one partner signing in
his own name. lb.
In that part of section 4, sub-section 1 of the
Law of Distress Amendment Act, 1908, which
provides that the Act shall not apply to goods
comprised in " any bill of sale, hire-purchase
agreement, or settlement made by such
tenant," the words " made by such tenant "
are not limited to " settlement," but apply also
to " bill of sale " and " hire-purchase agree-
ment," and consequently that part of the sub-
section does not except from the protection
given by the Act goods comprised in a hire-
purchase agreement made by the wife of a
tenant. lb.
That part of section 4, sub-section 1 of the
Law of Distress Amendment Act, 1908, which
provides that the Act shall not apply to " goods
belonging to the husband or wife of the
tenant . . . nor to goods in the possession,
order, or disposition of such tenant by the con-
sent and permission of the true owner under
such circumstances that such tenant is the
reputed owner thereof," does not except from
the protection of the Act goods comprised in a
hire-purchase agreement made by the wife of
the tenant and permitted by their owner to
remain on the demised premises. lb.
B. DAMAGE FEASANT.
Right to Impound — Cattle Driven to Pound
more than Three Miles.] — The statute
1 & 2 Ph. & M. c. 12, s. 1, provides that
" . . .no distress of cattle shall be driven out
of the hundred, rape, wapentake, or lathe where
such distress is or shall be taken, except that
it be to a pound overt within the same shire,
not above three miles distant from the place
where the said distress is taken ..." : —
Held, that on the true construction of this
section the word " not " should not be read as
" nor," and that the section means that the
distress may be driven to any pound within
the hundred or similar area where the distress
was taken, even though more than three miles
from the place where the distress was taken,
but may not be driven outside that area except
to a pound within the same shire and not
more than three miles from the place where
17
515
DISTRESS— EASEMENTS AND PEESCRIPTION.
516
the distress was taken. BerdsJey v. Pilking-
ton (Gouldsb. 100) followed. Coaker v. Will-
cocks, 80 L. J. K.B. 1026; [1911] 2 K.B. 124;
104 L. T. 769; 27 T. L. R. 357— C.A.
C. COSTS OF DISTRESS.
See also Vol. V. 1038, 1700.
Sura not Exceeding Twenty Pounds-
Charges — Man in Possession.] — The charges
contained in the Distress for Rent Rules, 1888,
made under section 8 of the Law of Distress
Amendment Act, 1888, have superseded the
charges in the schedule to the Distress (Costs)
Act, 1817, and in the case of a distress for rent
w-here the sum due does not exceed 20/. the
proper charge for a man in possession is that
prescribed bv Appendix II. Scale II. of the
Rules. Walker v. Better, 80 L. J. K.B. 623;
ri911] 1 K.B. 1103: 104 L. T. 821; 75 J. P.
331— D.
D. REMEDY FOR WRONGFUL,
IRREGULAR. OR EXCESSIVE DISTRESS.
See also Vol. V. 1039, 1700.
Illegal Distress — Sale — Retention of Proceeds
by Landlord — Ratification.] — A landlord who,
knowing that it is alleged that his bailiff has
made an illegal distress, retains the proceeds
of the sale of the things distrained, thereby
ratifies the act of the bailiff, and if the distress
was in fact wrongful is liable to the tenant in
damages. Becker v. Riebold , 30 T. L. R. 142
— Horridge, J.
Excessive Charges — Order by Justices for
Payment of Treble Amount — Penalty.] — An
order made by Justices under section 2 of the
Distress (Costs) Act, 1817, for the payment of
treble the amount of moneys unlawfully taken
on the levying of a distress is enforceable by
imprisonment in default of sufficient distress,
such sum being a penalty and not a civil
debt. Rex v. Daly: Neivson, Ex parte,
104 L.T. 892; 75 J. P. 333; 22 Cox C.C.
461— D.
E. FOR RATES.
See Rates.
F. RESTRAINING DISTRESS WHERE
COMPANY IN LIQUIDATION.
See Company (Winding-up).
DOCTOR.
See MEDICINE.
DIVORCE.
See HUSBAND AND WIFE.
DOCKS.
See SHIPPING.
DOCUMENTS.
See DISCOVERY ; EVIDENCE ;
INJUNCTION.
DOG.
See ANIMALS.
DOMICIL.
See INTERNATIONAL LAW.
DONATIO MORTIS
CAUSA.
See GIFT; REVENUE (ESTATE DUTYf.
DOWER.
See HUSBAND AND WIFE.
EASEMENTS AND
PRESCRIPTION.
I. Private Ways, 516.
II. Light and Air, 520.
III. Right of Support, 521.
IV. Drains and Watercourses. See Water.
V. Other Easements, 522.
I. PRIVATE WAYS.
See also Vol. V. 1082, 1703.
Sale of Land with Right of Way over
Adjoining Land of Vendor — Mortgage of
Dominant Tenement together with Right of
Way — Sale of Servient Tenement Released
517
EASEMENTS AND PRESCRIPTION.
518
from Right of Way — Reconveyance by
Mortgagee — Sale of Dominant Tenement —
No Notice to Purchaser of Release of
Right of Way — Extinction of Right of
Way — Estoppel.] — By :in indenture of
May 7, 1897, W., who was the owner of two
adjoining pieces of land lying respectively to
the east and west of their common boundary
line and of a cottage on the western land close
to that line, conveyed the western land and
the cottage together with a right of way along
certain paths over the eastern land to his wife
in fee-simple. On May 8, 1897, Mrs. W. mort-
gaged the western land and cottage with the
right of way to certain persons in fee-simple.
In April, 1907, in contemplation of the sale of
the eastern land by W. to the plaintiff, an
agreement was made between Mrs. W. and
the plaintiff that a window in the cottage
which overlooked that land should be built up,
and it was built up accordingly. By an inden-
ture of May 25, 1907, W. conveyed the eastern
land to the plaintiff in fee-simple, and in a
subsequent part of the indenture it was recited
that under the indenture first above mentioned
Mrs. W. ■' is entitled "' to a right of way over
the said paths, and that it had been agreed for
her to join in the reciting indenture for the
purpose of releasing the land conveyed from
the right of way, and it was then witnessed
that she thereby released the land conveyed
from the right of way. The plaintiff had no
notice or knowledge of the mortgage by Mrs.
W. On December 10, 1910, Mrs. W. died,
and on November 18, 1909, W. died, E. being
executor and trustee of them both. On
March 14, 1910, the mortgagees, who had never
taken possession, reconveyed the mortgaged
premises to R., as executor of Mrs. W., in fee-
simple discharged from the mortgage debt.
By an indenture of March 25, 1910, R. con-
veyed to the defendant the western land and
cottage, together with a right of way over the
aforesaid paths, in fee-simple. In this inden-
ture the release by Mrs. W. of the right of
way was not mentioned, and the defendant
had no notice or knowledge of it. Subse-
quently, the defendant entered upon the said
paths and re-opened the window. The plain-
tiff thereupon brought an action in the County
Court against the defendant claiming a declara-
tion that the defendant was not entitled to the
right of way or of light, an injunction to
restrain the defendant from exercising the
right of way and damages. The County Court
Judge gave judgment for the plaintiff. In the
Divisional Court, Bray, J., was of opinion
that the judgment of the County Court Judge
should be reversed, while Lush, J., who was
of opinion that it should be affirmed, withdrew
his judgment, with the result that the appeal
was allowed : — Held, by the Court of Appeal,
that the defendant had no right of way, seeing
that Mrs. W., who, at the date of the inden-
ture of May 25, 1907, as mortgagor in posses-
sion of the western land, was the only person
entitled to the right of way, had by that
indenture released the eastern land from that
right, subject only to the contingency of the
mortgagees taking possession and exercising
the right of way ; that the mortgagees, by
reconveying the western land to R. as the
representative of Mrs. W., without having
taken possession, had finally determined that
contingency; and that, therefore, no interest
in the right of way had passed from R. to the
defendant. Poulton v. Moore, 84 L. J. K.B.
462; [1915] 1 K.B. 400; 112 L. T. 202;
31 T. L. R. 43— C. A.
Held, further, that the defendant was
estopped from claiming the right of way,
inasnmch as the recital in the indenture of
May 25, 1907, contained so clear, precise, and
unambiguous a statement that Mrs. W. was
entitled to the entire interest in the right of
way as to estop her and those claiming under
her from denying that by that indenture she
had wholly released the eastern land from the
right of way. lb.
Held, also, that the defendant had no right
of light for the window, seeing that Mrs. W.,
by the agreement between her and the
plaintiff as to building up the window, and of
her joining in the indenture of May 25, 1907,
had abandoned that right subject to the con-
tingency of the mortgagees taking possession
and re-opening the window, which contingency
had been determined as in the case of the
right of way. lb.
Decision of Divisional Court (83 L. J. K.B.
875) reversed. 76.
Removal of Refuse — Removal by Local
Authority — Lost Grant.] — The owners of
adjoining houses A and B had an easement of
depositing house refuse in a dustbin on land C,
and for twenty years before 1902 the refuse
was periodically removed from the dustbin by
the local authority across land C, and down a
pasage D into E Street. The owners of C had
a right of way over D, and a tenant of A had
permission to use D from its owner ; but there
was no evidence of permission to use a way
across C. The passage D was kept locked,
and the dustmen of the local authority always
applied to the owner for the key. In and
after 1902 the refuse was not taken through D,
but over another part of C into a back road.
The owners of C having in 1908 erected a
building between the dustbin and D, the owner
of A and B brought an action against them,
claiming a right of way by presumption of a
lost grant, and an injunction against obstruc-
tion of such way : — Held, that though the
plaintiff had an easement of depositing the
refuse, it was for the defendants to remove it;
that the removal carried out by the local
authority was not carried out by them as
agents of the plaintiff ; and that a lost grant
of a right of way over C could not be pre-
sumed. Foster v. Richytiond, 9 L. G. R. 65
^Swinfen Eady, J.
Verbal Agreement — Construction.! — In 1883
F. the appellants' predecessor in title and P.
the respondent's predecessor in title, who were
owners of adjacent properties, made a verbal
agreement by which F. agreed to set back a
party wall which bounded his property in
order to give P. a more convenient access by
widening a private road on his property, and
P. agreed to give F. a right of way along the
road to a gate nine feet wide to be made in
the wall to give access to the back of his
property. In 1911 the appellants widened the
gate to fifteen feet, and set back the party
519
EASEMENTS AND PEESCRIPTION.
520
wall : — Held, that under the agreement they
had no right of access except by a gate of the
original width in the original place. Decision
of the Court of Appeal (82 L. J. Ch. 57;
[1913] 1 Ch. 113) affirmed. Grand Hotel,
Eastbourne, Lim. v. White, 84 L. J. Ch. 938;
110 L. T. 209; 58 S. J. 117— H.L. (E.)
Reservation — Easement in Future — Covenant
to " make and provide " — Crossing over Tram-
way— Perpetuity — Personal Covenant.] — In
1889 the defendant conveyed to the plaintiff's
predecessors in title a strip of land for a tram-
way, the deed containing a reservation by the
vendors of the right to cross the line at two
points to be selected by them, and a covenant
by the purchasers to " make and provide "
crossings at the points selected by the vendors
on notice being given. In 1892 the defendants
gave notice of one point selected, and from
that date crossed the line there from time to
time, but no crossing was ever constructed. In
1910 the plaintiff obstructed the crossing, and
sought to restrain the defendant from using
it : — Held, that the reservation was void as
breaking the rule against perpetuities, but that
the covenant contained an implied personal
obligation not to interfere with the defendants'
crossing, which obligation became fixed and
attached to the land as soon as the point was
selected, and that the plaintiff had notice
thereof, and was bound thereby. Sharpe v.
DurraJit, 55 S. J. 423 — Warrington, J.
Obstruction by Gate — No Substantial Inter-
ference vifith Right — Right of Entry into Side
of Road from Dominant Tenement — Unreason-
able Opening.] — The defendant conveyed to
the plaintiff a piece of land, the plaintiff
covenanting to make and maintain as a private
road a strip of this land ten feet wide. This
strip was on the northern boundary of the
land conveyed to the plaintiff, running east
and west, and connected two roads running
north and south, the western being a private
lane and the eastern a highway. Land which
the defendant retained, and which was open,
adjoined the strip all along its northern side.
The conveyance reserved to the defendant the
right to pass and repass " over and along "
the private road, and the plaintiff granted the
right of way to the defendant as appurtenant
to the defendant's land " and every part of
it." The plaintiff duly laid out the strip as
a private road, and the defendant placed a
wooden fence along its northern side. Subse-
quently the defendant removed this fence and
built shops on his land abutting on the north-
ern side of the private road, except that at
about sixteen feet from the eastern end they
were curved back so as to leave a triangular
strip of the defendant's land vacant and open
to the highway and along the sixteen feet of
the private road. The plaintiff thereupon put
up a fence along the sixteen feet, and a ten-
foot gate across the entrance of the private
road into the highway. The defendant knocked
down the fence and the ten-foot gate. The
plaintiff claimed the right to erect and main-
tain the gate, and also the fence with a small
gate in it. Sargant, J., held that the plaintiff
was not entitled to put up the fence or the
gate. On appeal, — Held, that the plaintiff was
entitled to put up a gate across the private
way, but that it must be without a lock and
be kept open during business hours, such a
gate not being a substantial interference with
the right of way as granted ; and that the
plaintiff was also entitled to put up the fence
as claimed, as such fence would not interfere
with the defendant's reasonable right of access
to the way. A gate is not necessarily an
obstruction to a private right of way. Pettey
V. Parsons, 84 L. J. Ch. 81; [1914] 2 Ch. 653;
111 L. T. 1011 ; 58 S. J. 721 ; 20 T. L. E. 655
— C.A.
Holdings under Common Landlord.] —
The plaintiff and the defendant were tenants
of holdings held iinder a common landlord.
The defendant had acquired a right of way
over the plaintiff's holding. Across the end
of this way, where it entered the county road,
the plaintiff erected a gate for the convenient
use of his holding. The defendant was
allowed free ingress and egress through the
gate : — Held, no obstruction of the right of
way. Flynn v. Harte, [1913] 2 Ir. E. 322—
Dodd, J.
The law as to the acquisition of a right of
way as between tenants of a common landlord
considered. lb.
Locking Gates — Offer to Provide Keys.]
— It is an obstruction to a person's free right
of way if another person locks gates across
such way, and it is no answer to the complaint
as to the obstruction to say that keys for the
gates will be supplied. Guest's Estates v.
Milner's Safes, 28 T. L. E. 59— Swinfen
Eady, J.
II. LIGHT AND AIE.
See also Vol. V. 1129, 1710. .
Variation of Direction of Light — Equal
Amount of Light — Future Obstruction.] — In
an action for obstruction of ancient lights, it
appeared that the defendants' building had
been so altered as to greatly diminish the
amount of light coming to the plaintiff's
window from the east, while allowing it a
largely increased access of light from the
west : — Held, that the action failed, as the
plaintiff was not entitled to any particular rays
of light coining from any particular direction,
but only to the same quantum of light that he
had enjoyed for twenty years. Colls v. Home
and Colonial Stores (73 L. J. Ch. 484; [1904]
A.C. 179) discussed. Davis v. Marrable,
82 L. J. Ch. 510; [1913] 2 Ch. 421; 109 L. T.
33; 57 S. J. 702; 29 T. L. E. 617— Joyce, J.
Acquiescence by Dominant Owner in
Abstraction of Light over Adjoining Property
— Easement of Light over other Adjoining
Property not Entirely Negatived — Rights of
Dominant Owner as to that Property.] — An
abstraction or diminution of light coming over
adjoining property acquiesced in or consented
to by the owner of the dominant tenement
does not negative entirely his right to an ease-
ment of light in respect of the same openings
over other adjoining property, though he does
not acquire any further right entitling him to
521
EASEMENTS AND PEESCRIPTION,
522
prevent the erection on that other property
of a building which he could not have prevented
had he not assented to the prior abstraction
of light over the first adjoining property.
Ankerson v. Connelly (76 L. J. Ch. 402;
[1907] 1 Ch. 678) applied. Bailey <l- Son,
Lim. V. Holborn and Frascati, Lim., 83 L. J.
Ch. 515; [1914] 1 Ch. 598; 110 L. T. 574;
58 S. J. 321— Sargant, J.
Obstruction — Incidental Injury — Site Yalue
— Measure of Damages.] — In estimating the
damages due for the wrongful obstruction of
ancient lights, it is proper to consider not
only the injury done to the dominant tenement
as it actually exists, but also to the dominant
tenement as it is capable of being developed
in the future. Griffith v. Clay (£■ Sons,
81 L. J. Ch. 809; [1912] 2 Ch. 291; 106 L. T.
963— C.A.
Where, accordingly, the owner of two small
houses possessing ancient lights towards the
street was also the owner of a separate plot of
land at the rear of these two houses that
possessed no ancient lights, — Held, that, in
assessing the damages due to him for the
obstruction of his ancient lights, it was proper
to take into consideration the injury inflicted
on him by this obstruction with respect to
the site value of the two houses and of the
separate plot as a whole, in view of the possi-
bility of their future development as a single
property. lb.
Interference with Light and Air — Nuisance.]
— In an action for interference with light and
air the owner of the dominant tenement is
entitled to the miinterrupted access of a
quantity of light measured by what is required
for the ordinary purposes of the use of his
tenement, and the test is whether the obstruc-
tion complained of amounts to a nuisance.
Colls V. Home and Colonial Stores (73 L. J.
Ch. 484; [1904] A.C. 179) and Jolly v. Kine
(76 L. J. Ch. 1; [1907] A.C. 1) discussed
and explained. Paul v. Robson, 83 L. J.
P.C. 304; L. R. 41 Ind. App. 180; 111 L. T.
481; SOT. L. E. 533— P.C.
Interruption — Verbal Agreement of Tenancy
— Tenancy of Dominant Tenement under
Person Occupying Servient Tenement.] — The
access of light during a verbal agreement for
a tenancy is not " enjoyed by some consent or
agreement expressly made or given for that
purpose by deed or writing " as required by
section 3 of the Prescription Act, 1832, and
the existence of such a tenancy agreement
with a person who was also during the tenancy
the occupier of the servient tenement does not
prevent the owners of the dominant tenement
from acquiring the right to access of light
through their windows. Harbridge (or Har-
bidge) v. Warwick (18 L. J. Ex. 245: 3 Ex.
552) explained. Mallam v. Rose, 84 L. J.
Ch. 934; [1915] 2 Ch. 222— Sargant, J.
III. RIGHT OF SUPPORT.
See also Vol. V. 1178, 1720.
Grant of Land Reserving Minerals — Right
to Work them "in as full and ample a way "
as before Grant — No Express Reservation of
Right to Let Down Surface — Necessary Impli-
cation of Right.l — In 1829 a vendor who was
then owner in fee of certain lands conveyed
them to a purchaser, but excepting and
reserving all the minerals thereunder and the
means and power of working them "in as full
and ample a way and manner as if these
presents had not been made and executed."
There was a compensation clause, but only for
damage by surface workings. The deed gave
no express right in terms to let down : — Held,
that by necessary implication from the words
"in as full and ample a way and manner"
the right to let down the surface in working
the minerals was reserved. Beard v. Moira
Colliery Co., 84 L. J. Ch. 155; [1915] 1 Ch.
257; 112 L. T. 227; .59 S. J. 103— C.A.
Restricted Interpretation of Words "in as
full and ample a way" in Inclosure Acts —
Not Applicable to Construction of Deeds.] —
The restricted interpretation of such words in
the construction of Inclosure Acts is not applic-
able to the construction of deeds. lb.
Support of Railway. — The mining sec-
tions (77 to 85) of the Railways Clauses
Consolidation Act, 1845, relate to mines within
forty yards of a railway, and do not apply to
mines outside that limit. A railway company
has therefore a common law right of lateral
support for its railway from mines lying outside
the forty yards limit. Hoivley Park Coal Co.
V. London and North-W ester n Railway,
82 L. J. Ch. 76; [1913] A.C. 11; 107 L. T.
625; 57 S. J. 42; 29 T. L. R. 35— H.L. (E.)
IV. DRAINS AND WATERCOURSES.
See Water.
V. OTHER EASEMENTS.
See also Vol. V. 1188, 1721.
Prospect or Privacy.] — The law does not
recognise anv easement of prospect or privacy.
Browne v. Flower, 80 L. J. Ch. 181 ; [1911]
1 Ch. 219; 103 L. T. 557; 55 S. J. 108—
Parker, J.
Prescription — Right of Common — User for
Sixty Years — No Acquiescence — Claim to Soil
only — Lost Grant.] — Under section 1 of the
Prescription Act, 1832, a right of common
appurtenant is not taken and enjoyed by the
claimant for sixty years within the meaning of
that section, if the user has not been acquiesced
in by the owner of the servient tenement, or if
the claim has not been a claim to a profit, but
only a claim to a title in the soil. The doctrine
of lost grant only applies where the enjoyment
cannot otlierwise be reasonably accounted for.
Lycll V. Hothfield (Lord), 84 L. J. K.B. 251;
[1914] 3 K.B. 911; 30 T L. R. 630—
Shearman. J.
523
ECCLESIASTICAL LAW.
524
ECCLESIASTICAL LAW.
I. Chl'rch of England.
1. Archdeacons, 523.
2. Discipline, 523.
II. Nonconformist Minister, 523.
III. Advowson, 523.
IV. Churches and Chapels, 524.
V. Divine Service, 525.
VI. Faculties, 525.
VII. Churchwardens, 527.
VIII. Sexton, 527
IX. Church and Chapel Rates, 527.
X. Practice and Procedure in Ecclesiastical
Matters, 528.
XI. Tithe. 528.
XII. Burial. 530.
I. CHURCH OF ENGLAND.
See also Vol. V. 1196, 1724.
1. Archdeacons.
Archdeacon's Fees — Procuration. 1 — The
Ecclesiastical Fees Act, 1867, and the table
of fees settled thereunder in 1908, have not
substituted a fee of two shillings for the old
customary procuration. The customary pro-
curation is still annually due and payable to
the archdeacon irrespective of whether his
visitation is held in respect of grouped parishes
or in respect of an individual parish. Exeter
(Archdeacon) v. Green, [1913] P. 21;
28 T. L. R. 8— Consist. Ct. of Exeter.
2. Discipline.
"Immoral act" — Sending Indecent Letter
to Female Parishioner.] — The sending by a
clergyman of an indecent letter to a female
parishioner is an " immoral act " within the
meaning of that term in the Clergy Discipline
Act, 1892. Ely (Bishop) v. Close, [1913] P.
184: 29 T. L. R. 668— Arches Ct. of Canter-
bury.
II. NONCONFORMIST MINISTER.
Baptist Minister — Termination of Employ-
ment— Effect of Resignation as from a Future
Date — Right to Withdraw Resignation.] — A
Baptist minister, who expresses his intention
to resign his ministry on or before a certain
date, at a formal meeting of the communicants
of his church, does not thereby terminate
his employment. If a Baptist minister does
definitely resign his appointment as from a
future date, he may, before that date arrives,
withdraw his resignation at a formal meeting
of the communicants of the church, although
the meeting is not such as would have power to
appoint a new minister. Nickson v. Dolphin,
56 S. J. 123— Warrington, J.
III. ADVOWSON.
See also Vol. V. 1226, 1728.
Settlement — Power of Appointment among
a Class — Failure to Appoint — Gift Over a
Power — Refusal by all Members of the Class
— Whether "failure" within the Settlement.]
— An advowson was conveyed in strict settle-
ment with a declaration of trust that only the
Fellows of a certain college should be presented
to the benefice. On " failure " of the donees
of the power of appointment to make such
presentation the advowson was to be for the
benefit of the Master and Senior Fellows of
the college for ever. The plaintiff, who was a
donee of the power, ordered the benefice, which
was vacant at the time, to each of the Fellows,
but they all refused it, and he appointed him-
self : — Held, that there had been no " failure "
within the meaning of the settlement, and
therefore the advowson was still vested in the
plaintiff, subject to a trust on future occasions
to appoint a Fellow in accordance with the
deed. Hopper v. St. John's College, Cam-
bridqe, 31 T. L. R. 139— Astbury, J.
Estate Duty — Proceeds of Sale — Charge-
ability.] — By section 15, sub-section 4 of the
Finance Act, 1894, " Estate duty shall not be
payable in respect of any advowson or church
patronage which would have been free from
succession duty under section twenty-four of
the Succession Duty Act, 1853." By sec-
tion 24 of the Succession Duty Act, 1853, " A
successor shall not be chargeable with duty in
respect of any advowson or church patronage
comprised in his succession, unless the same
. . . shall be disposed of by or in concert with
him for money or money's worth, in which
case he shall be chargeable with duty upon
the amount or value of the money or money's
worth, for which the same . . . shall be so
disposed of at the time of such disposal." A
testator, who died in 1898, by his will left
property, including two advowsons, to three of
the defendants as trustees, to the use of his
son C. for life, with remainder to the use of
his grandson W., the other defendant, for life,
with remainders over. C. died in 1901, and in
1905 W. attained the age of twenty-one, and
in 1909. under the powers vested in him by
the Settled Land Acts. 1882 to 1890, sold the
two advowsons. Upon an information by the
Attorney-Oeneral claiming a declaration that
the defendants, upon the death of either the
testator or his son, became liable to pay estate
duty and settlement estate duty in respect of
the advowsons. — Held, that upon the true con-
struction of the above enactments these duties
were not payable. Att.-Cen. v. Peek. 82 L. J.
K.B. 767 ; [1913] 2 K.B. 487 : 108 L. T. 744
— C.A.
Decision of Hamilton. J. (81 L. J. K.B. 574:
[1912] 2 K.B. 192). affirmed. 7b.
IV. CHURCHES AND CHAPELS.
See also Vol. V. 1295, 1732.
Parish Church — Conventual Church — Per-
petual Curate — Churchwardens — Non-repair.]
— The perpetual curate and one of the two
churchwardens of a parish church instituted
an action against the lay rector to restrain him
from preventing them resuming possession of
certain ruined aisles adjoining the church for
the purpose of restoring them : — Held, that
' one only of two churchwardens could not sue,
525
ECCLESIASTICAL LAW
526
but that the perpetual curate, though having
no seisin of anything appertaining to the
church, had sufficient possession to sue for any
interference with his right and duty to hold
services. Fowke v. Berrington {No. 2),
83 L. J. Ch. 878; [1914] 2 Ch. 308; 111 L. T.
440; 58 S. J. 610— Astbury, J. .
A church building may be partly parochial
and partly conventual. If the vicar of the
parochial part sues to recover the other part,
claiming that it is all parochial, the onus lies
upon the vicar to shew that the other part was
parochial. The fact that the parish has never
contributed to the repairs of the other part is
strong evidence to shew that it was not
parochial. lb.
Private Chapel — Absence of Dedication —
Rights of Public] — No person can intrude
into a private chapel against the will of the
owner in the absence of such a dedication as
would give the public a legal right to go there.
Hancock v. Stephens, 31 T. L. E. 434— C.A.
V. DIVINE SEEVICE.
See also Vol. V. 1314, 1733.
Repulsion from Holy Communion — Marriage
with Deceased Wife's Sister — " Open
and notorious evil liver."] — Section 1 of thq
Deceased Wife's Sister's Marriage Act, 1907,
makes a marriage between a man and the
sister of his deceased wife valid for all
purposes, notwithstanding the proviso in the
same section, and such a marriage does not
now constitute a lawful cause justifying a
clergyman in refusing to admit the married
persons to Holy Communion. Thompson v.
Dibdin, 81 L. J. K.B. 918; [1912] A.C. 533;
107 L. T. 66: 56 S. J. 647; 28 T. L. R. 490
— H.L. (E.)
Decision of the Court of Appeal, sub norn.
Rex V. Dibdin ; Thompson, Ex parte (79 L. J.
K.B. 517; [1910] P. 57), affirmed. lb.
VI. FACULTIES.
See also Vol. V. 1328, 1735.
Tflfishes of Parishioners — Discretion of
Court.] — -Where, on an application for a
faculty, a Chancellor has all the materials
before him, it is open to him, if in the exercise
of his judicial discretion he comes to the
conclusion that he ought to do so, to grant or
refuse the faculty in opposition to the wishes
of a majority of the parishioners. St. Stephen's,
Hampstead, 28 T. L. E. 584— Consist. Ct. of
London.
Erection of Non-provided School on Const-
crated Ground — Discretion.] — The Ecclesias-
tical Courts have jurisdiction in their discretion
to grant faculties authorising the erection on
consecrated ground of tlie buildings of public
elementary schools not provided by the local
education authority in cases where it is proved
that in the buildings so to be erected religious
instruction will be given according to the
principles of the Church of England, and that
interments have never taken place in the
ground upon which it is proposed that the
school buildings shall be erected. Rettison,
In re (L. E. 4 A. & E. 294), followed. Corke
V. Rainger, [1912] P. 69; 76 J. P. 87;
28 T. L. E. 130— Arches Ct. of Canterbury.
Consecrated Ground — Powers of Secular and
Ecclesiastical Courts.] — When ground is once
consecrated and dedicated to sacred purposes
no secular Court has power to sanction the use
of it for secular purposes. Ecclesiastical
Courts, however, have discretionary jurisdic-
tion to grant faculties for the erection of
buildings and the like in consecrated ground
under certain circumstances. Bideford Parish,
In re ([1900] P. 314), and Corke v. Rainger
([1912] P. 69) approved. Campbell v.
Paddington Parishioners (2 Eob. Ecc. 558)
criticised. Sutton v. Boicden, 82 L. J. Ch.
322; [1913] 1 Ch. 518; 108 L. T. 637;
29 T. L. E. 262— Farwell, L.J.
Baldacchino.] — The Court, holding itself
bound by the decision in White v. Bowron
(43 L. J. Ecc. 7; L. E. 4 Ad. & E. 207),
declined to grant a faculty for the erection of
a baldacchino over a Communion table.
Grosvenor Chapel, South Audley Street, In re
(No. 1), 29 T. L. E. 286— Consist. Ct. of
London.
Chancel Screen with Figures — Holy Table
— Choir Stalls.] — Faculty granted for the
erection of a chancel screen surmounted by a
figure of the crucified Saviour in the centre,
with figures of the Blessed Virgin on one side
and St. John on the other. Wherever, on an
application to the Court for a faculty, it is
proposed to place the holy table on a raised
platform, the Court will require that there
should be standing room on the platform at
the ends as well as at the front of the holy
table, and that there should be no fixed cur-
tains at the sides cutting off access to those
ends. The Court in granting a faculty for
alterations in the arrangement of the chancel
required that all choir stalls should run from
east to west, and none from north t^ south.
Hendon Parish Church, 28 T. L. E. 438—
Consist. Ct. of London.
Rood Beam with Figures — Inscription.! —
The Court granted a faculty for the removal
from a rood beam of the inscription " 0 Lord
God, Lamb of God, Son of the Father, that
takest away the sins of the world." and when
that was done authorising the retention of the
figures of the Savionr, St. Mary, and St. John
on the rood beam. St. Paul, Bow Common,
28 T. L. E. 584— Consist. Ct. of T^ondon.
Rood Screen — Discretion.] — Where *he
erection of a chancel screen, with a rood loft
and beam surmoimted by the ficures of Our
Lord upon the Cross, the Virgin Mary, and St.
John, is proposed as an architectural decora-
tion and there is no probability of the figures
being subjected to superstitious reverence, the
Consistory Court is entitled, in its discretion,
to grant a facultv for the erection. .AU Saints.
Wesfhuni. In re. 30 T. L. R. 389— Consist.
Ct. of Salisbury.
Parish Church — Picture of Crucified Saviour
— Opposition of Parishioners — Faculty for
527
ECCLESIASTICAL LAW
528
Removal.] — The rector of a parish placed a
picture of the crucified Saviour near the pulpit
in the parish church without consulting the
churchwardens or the congregation. The
vestry resolved by 37 votes to 27 that the
parishioners should apply for a faculty to
remove the picture : — Held, on an application
for a faculty to confirm the rector's action,
that as the introduction of such a picture had
not been sanctioned by authority, and as it
had not been shewn by the petitioners that
there was a general desire on the part of the
church-going parishioners for its introduction.
a faculty must be decreed for the removal of
the picture. Hudson v. Fulford, 30 T. L. E.
32 — Consist. Ct. of London.
VII. CHUECHWAEDENS.
Action by One of Two Churchwardens and
Perpetual Curate against Lay Rector .1 — See
Fowke V. Berrington [No. 2), ante, IV.
VIII. SEXTON.
See also Vol. V. 1356.
Ancient Parish — Freehold Office — Presump-
tion of Law.] — The office of sexton in an
ancient parish is not by presumption of law
a freehold office. Where, therefore, a man
chiims to be restored to the office of sexton
in a particular parish, the Court will not grant
a mandamus for that purpose unless there is
evidence that the office of sexton in that parish
is a freehold office, which the person elected
thereto is entitled to hold for life. He's Case
(Vent. 158), Merrick's Case (2 Peck. 91), and
Rex V. Thame (Churchioardens) (1 Str. 115)
discussed and applied. Rex v. Dymock (Vicar) ;
Brooke, Ex parte, 84 L. J. K.B. 294; [1915]
1 K.B. 147; 112 L. T. 156; 79 J. P. 91;
13 L. G. E. 48; 31 T. L. E. 11— D.
IX. CHUECH AND CHAPEL EATES.
See also Vol. V. 1362, 1750.
Rate made under Authority of Local Act —
Rate made in Consideration of Extinguish-
ment of Tithes — Rate Partly for Ecclesiastical
and Partly for other Purposes.] — Section 5 of
the Compulsory Church Rate Abolition Act,
1868, which saves church rates authorised by
any local Act to be made or levied in considera-
tion of the extinguishment of tithes, is not
limited to church rates as defined by section 10
— that is to say, to rates for ecclesiastical pur-
poses— but applies to any rate so authorised to
be made or levied as a church rate, even
though it is in part applicable to purposes
other than ecclesiastical. By a local Act of
Parliament passed in 1825, expressed to be an
Act for extinguishing tithes within a certain
parish and making compensation to the rector
for the time being in lieu thereof, it was
enacted as follows : By section 1 the church-
wardens for the time being were from time
to time for ever thereafter to pay to the rector
for the time being a fixed annual sum in lieu,
satisfaction, and discharge of all tithes within
the parish ; by section 7 all tithes within the
parish were to cease and be for ever extin-
guished ; and by section 14 the churchwardens
were to make an assessment, to be called " the
church rate," for raising from time to time
the said annual sum and such further sum as
should be necessary for repairing the church
and churchyard and for the payment of all
necessary and proper salaries and disburse-
ments relative to the church and churchyard.
In 1912 the churchwardens made a rate under
the above Act " for provision of the rector's
stipend and for other purposes authorised by
that Act " : — Held, that the whole of the
rate, and not only that part of it which was
applicable to the rector's stipend, was a church
rate authorised to be made by a local Act in
consideration of the abolition of tithes within
the meaning of section 5 of the Compulsory
Church Eate Abolition Act, 1868, and was
therefore enforceable, notwithstanding section 2
of that Act. London County Council v. St.
Botolph-without-Bi.shopsgate Churchwardens,
83 L. J. K.B. 9.53; [1914] 2 K.B. 660;
110 L. T. 737 ; 78 J. P. 161 ; 12 L. G. E. 168
— C.A.
X. PEACTICE AND PEOCEDUEE IN
ECCLESIASTICAL MATTEES.
See also Vol. V. 1386, 1751.
Application for Leave to Intervene after
Expiration of Time for Appealing from Grant
of Faculty.] — The Consistory Court of London
granted a faculty for the erection of a rood
screen, a new altar, and certain structural
alterations in Grosvenor Chapel, but refused a
faculty for a proposed baldacchino. After the
time for appealing from that decision had
expired an application was made by a
parishioner for leave to intervene and to be
added as a respondent for the purpose of
appealing to the Court of Arches from the
decision of the Consistory Court : — Held, that
the application must be refused, as the faculty
had issued and there was no case before the
Court in which an appearance could be entered.
Grosvenor Chapel. South Audley Street, In re
(No. 2), 29 T. L. E. 411— Consist. Ct. of
London.
XL TITHE.
See also Vol. V. 1415, 1755.
Tithe Rentcharge — Bankruptcy of Incumbent
— Sequestration — Tithes Paid by Mistake of
Fact — Right to Recover from Bishop — Money
Had and Received — Principal and Agent.] —
Tithe rentcharge paid in mistake of fact to the
sequestrator of a benefice appointed by the
bishop under the Bankruptcy Act, 1883, s. 52,
may be recovered from the bishop as money
had and received, even after, in ignorance of
the mistake, the bishop has paid the money
over to the trustee in bankruptcy of the incum
bent or otherwise duly accounted for it to him
Sadler v. Evans (4 Burr. 1984) considered
Baijlis V. London (Bishop), 82 L. J. Ch. 61
[1913] 1 Ch. 127 ; 107 L. T. 730; 57 S. J. 96;
29 T L E 59 C A
Decision of Neville, J. (81 L. J. Ch. 586;
[1912] 2 Ch. 318), affirmed. lb.
529
ECCLESIASTICAL LAW
530
Recovery of — Portion of Land Let on
Long Lease — Joint Owners — Whole of Land
not in Occupation of same Owner — Proceed-
ings for Recovery — Appointment of Receiver —
Distress.] — The respondent U. was the owner
in fee-simple of a building estate out of which
tithe rentcharge amounting to 21. 14s. 4rf.
issued. A portion of the land was let on long
leases to various lessees who were in occupa-
tion of their respective plots. An application
having been made to the County Court for an
order for the recovery of the tithe rentcharge
issuing out of tlie land, the County Court
Judge made an order, under section 2, sub-
section 3 of the Tithe Act, 1891, for the
recovery of the tithe rentcharge by the appoint-
ment of a receiver to receive the rents and
profits of the lands out of which the tithe
rentcharge issued : — Held, that sub-section 2
of section 2 of the Tithe Act, 1891, under
which a County Court Judge may make an
order for the recovery of tithe rentcharge by
means of distress, only applies where the
whole of the lands which are the subject of
the application are in the occupation of the
owner thereof, and that where the owner is
only in occupation of a portion of the lands
out of which the tithe I'entcharge issues the
proper order to be made is an order for the
appointment of a receiver under sub-section 3
of section 2 of the Tithe Act, 1891.
Ecclesiastical Commissioners v. Upjohn,
82 L. J. K.B. 435; [1918] 1 K.B. 501;
108 L. T. 417— D.
Covenant by Tenant to Pay Landlord
such Sums as Landlord shall Expend for
Tithe Rentcharge — Validity.] — The provision
in section 1, sub-section 1 of the Tithe Act,
1891, that " any contract made between an
occupier and owner of lands, after the passing
of this Act, for the payment of the tithe rent-
charge by the occupier shall be void," is not
limited to a contract between an occupier and
owner of lands for payment of the tithe rent-
charge by the occupier to the tithe owner, but
extends also to a contract between an occupier
and owner of lands for payment by the former
to the latter of such sums as the latter shall
expend in payment of tithe rentcharge to the
tithe owner. Tuff v. Drapers' Co., 82 L. J.
K.B. 174; [1913] 1 K.B. 40; 107 L. T. 635;
57 S. J. 43; 29 T. L. K. 36— C.A.
Ludlow (Baron) v. Pike (73 L. J. K.B. 274;
[1904] 1 K.B. 531) approved by Vaughan
Williams, L.J., and Kennedy, L.J. ; dis-
approved by Buckley, L.J. lb.
Extraordinary Tithe Rentcharge — Redemp-
tion— Money in Court — Costs of Application
to Invest.] — The costs of an application to
invest money paid into Court under the Extra-
ordinary Tithe Redemption Act, 1886, s. 5,
sub-s. 4, in redemption of an extraordinary
charge on land, ordered to be paid by the
landowner. Extraordinary Tithe Redemption
Act, 1886, Ex parte; Wiqan, in re, 80 L. J.
Ch. 670; [1911] 2 Ch. 438] 105 L. T. 405—
Neville, J.
Scheme for Transfer of Townships from One
Parish to Another — Provision as to Fees for
"marriages, churchings, and burials, and
other ecclesiastical dues, offerings, and
emoluments."] — In 1909 it was proposed for
ecclesiastical purposes to transfer certain town-
ships from the parish of E. to the parish of I.,
and a scheme was accordingly drawn up under
section 26 of the Pluralities Act, 1838, and
subsequently approved by Order in Council.
The scheme provided that " the incumbent of
the said parish of I. shall have exclusive cure
of souls w'ithin the limits of the said districts
now part of the parish of E., and proposed to
be annexed to the parish of I., and the fees for
marriages, churchings, and burials, and other
ecclesiastical dues, offerings, and emoluments
arising from the said districts, shall hence-
forth belong to the incumbent of the said
parish of I., to which such districts shall have
been so annexed. That no alteration shall be
made as to the patronage or (save as aforesaid)
the endowments of any of the benefices affected
by this scheme " : — Held, that the words of
the scheme, " other ecclesiastical dues, offer-
ings, and emoluments," did not include tithes.
Bolam V. Allgood, 110 L. T. 8; 58 S. J. 46;
30 T. L. R. 46— C.A.
XII. BURIAL.
See also Vol. V. 1433, 1757.
Burial Ground — Proposed Sale — Approval of
Charity Commissioners — Authority of Act of
Parliament.] — A sale of a disused chapel and
burial ground, although authorised by the
Board of Charity Commissioners under sec-
tion 24 of the Charitable Trusts Act, 1853, is
not a sale under the authority of an Act of
Parliament within section 5 of the Disused
Burial Grounds Act, 1884, and therefore the
burial ground cannot by virtue of that
authority be sold free from restrictions as to
building. Hoivard Street Congregational
Chapel (Sheffield), In re, 83 L. J. Ch. 99;
[1913] 2 Ch. 690 ; 109 L. T. 706 ; 58 S. J. 68 ;
30 T. L. R. 16— Astbury, J.
Portion of — Widening Highway — Faculty
— Exercise of Discretion.] — The power to
sanction the use of part of a burial ground for
widening a highway is one which must be
exercised with great discretion and reserve,
and where the proposal involves an extensive
disturbance of graves and is reasonably
obnoxious to many of the relatives of the
persons buried there, and where there has been
no approval by the vicar, churchwardens, and
parishioners, such use ought not to be sanc-
tioned unless there is urgent and immediate
necessity. Uxbridge Urban Council, Ex parte,
30 T. L. R. 448— Consist. Ct. of London.
Disused Burial Ground — Acquirement by
Public Authority for Street Widening —
Statutory Authority to Acquire Freehold.] —
— On an application by tlie rector and church-
wardens, and by the London County Council,
for a faculty authorising an agreement by
which tlie Council was to ac(]uire a strip of a
disused burial ground for widening a road,
the Court declined to decide whether the
Council has statutory authority to acquire
the freehold of consecrated land, and deter-
mined to deal with the case in its discretion.
531
ECCLESIASTICAL LAW— ELECTION (IN EQUITY j.
532
under the usual procedure, which is to grant
a user of the land. St. Anne, Limehouse,
31 T. L. E. 539— Consist. Ct. of London.
Extension of Churchyard — Interment
within One Hundred Yards of Dwelling
House.] — The extension of a churchyard, even
if situate in an area in which an Order in
Council has been made enacting that no new
burial ground shall be opened without the
previous approval of the Local Government
Board, does not come within the purview of
section 9 of the Burial Act, 1855, and the con-
sent in writing of the owner, lessee, and
occupier of a dwelling house within one
hundred yards of such extension is therefore
not required before it can be used for burials.
Section 9 of the Burial Act, 1855, applies only
to land used as or appropriated for a burial
ground, or an addition to a burial ground, by
burial boards under the Burial Acts. Green-
toood V. Wadsworth (43 Tj. J. Ch. 78; L. E.
16 Eq. 288^ not followed. Clegg \. Metcalfe,
83 L. J. Ch. 743: [1914] 1 Ch. 808; 111 L. T.
124; 78 J. P. 251; 12 L. G. R. 606; 58 S. J.
516; 30 T. L. R. 410— Sargant, J.
EDUCATION.
See SCHOOL.
ELECTION (IN EQUITY).
See also Vol. V. 1531, 1763.
English Doctrine — Scots Law — " Approbate
and reprobate."'' — The Scottish doctrine of
" approbate and reprobate " is in principle
identical with the English doctrine of election.
It is that no person can accept and reject the
same instrument. Where a deed or will pro-
poses to make a general distribution of property
for the benefit of a person named in it, such
person cannot accept a benefit under the in-
strument without at the same time conforming
to all its provisions and renouncing every right
inconsistent therewith. Pitman v. Crum-
Ewing, 80 L. J. P.C. 178; [1911] A.C. 217;
104 L. T. 611— H.L. (Sc.)
A testator bequeathed to his daughter the
life rent of a fund with a power of appoint-
ment among her children, and in default of
appointment among the children equally. The
daughter, massing together her own property
with the fund bequeathed by her father, pur-
ported, by an exercise (which was invalid) of
her power of appointment, to bequeath the
whole to her children in life rent and then to
the children's children in fee : — Held, that
these grandchildren were put to their election
between their rights under their grandfather's
will and their rights under their mother's will,
of which they could not accept part and reject
part. lb.
Foreign Will — Devise of Real Estate in
England — Defective Execution — Invalidity —
Devolution — Residuary Legatee Heir.] —
Where by a foreign will, not so executed as
to pass real estate in England, real estate in
England is devised away from the heir and
personal estate is bequeathed to the heir, the
heir is not bound to elect between the real and
personal estates, but takes both. Hearle v.
Greenbank (3 Atk. 695, 715) applied. De
Virte, In re; Vaiani v. De Virte, 84 L. J.
Ch. 617; [1915] 1 Ch. 920; 112 L. T. 972
— Joyce. J.
A testatrix resident and domiciled in Italy
in 1899 made an Italian will purporting to give
real estate in England to V. absolutely, and
her residuary real and personal estate to R.
The will was not so executed as to be effectual
to pass real estate in England. E. was the
testatrix's heiress-at-law. In 1901 the testa-
trix by deed settled the English real estate
upon trust for V. for life, with remainder for
his children in tail, and an ultimate remainder
to the use of herself in fee. V. died, not
having had children : — Held, that R. was
entitled to both the English realty as heiress-
at-law and the personalty as residuary legatee,
and was not put to her election between the
two. lb.
Restraint on Anticipation — Power in Trus-
tees to Yary Trusts — Intention — Spinsters.] —
The doctrine of election is not excluded in the
case of a spinster who takes a settled interest
under a will merely because a restraint on
anticipation is attached to her interest while
under coverture or because her trustees have
powers in certain events to revoke or alter the
trusts declared in her favour. Haynes v.
Foster (70 L. J. Ch. 302 ; [1901] 1 Ch. 361)
distinguished. Hargrove, In re : Hargrove v.
Pain, 84 L. J. Ch. 484; [1915] 1 Ch. 398;
112 L. T. 1062; -59 S. J. 364— Astbury, J.
Spinster — Will — Restraint on Anticipation.]
— In the case of a spinster, to whom an interest
with a restraint on anticipation during cover-
ture attached thereto is given by the same
instrument as that which gives rise to the
question of election, the doctrine of election
applies. The fact that she would be restrained
from anticipation, if and when she married,
is immaterial, and she will accordinglv be
put to her election. Haynes v. Foster
(70 L. J. Ch. 302; [1901] 1 Ch. 361)
distinguished. Tongue, In re: Burton, In re;
Higqinson v. Burton. 84 Tj. J. Ch. 378;
ri915] 1 Ch. 390: 112 L. T. 685— Warring-
ton. J. Affirmed, 84 L. J. Ch. 933; [1915]
2 Ch. 283— C. A.
Mortgage by Testator of Property Belonging
to His Wife— Election by Wife to Take under
Will— Liability of Property Brought in by
Election for Debts — Contribution towards
Deficiency.] — A testator gave all his estate
upon trust for his wife for life, and after
her death he gave his leasehold property in
.Tames Street upon trust for his daughter for
life, and after her death for her children; and
after the death of his wife he gave his villa
known as " Birchfield " to his niece. The
testator died in 1913. The James Street
533
ELECTION (IN EQUITY)— ELECTION LAW
534
property was assigned to the testator's -wife
in 1888, and on August 25, 1909, the testator
purported to mortgage the same for 400Z. The
" Birchfield " villa was assigned to the testator
and his wife jointly, and on August 15, 1905,
they mortgaged it for 400Z. The widow elected
to take under the will : — Held, that as to the
James Street property it was not primarily
liable for payment of the mortgage debt, and
what the widow brought in under her election
was the property free from the incumbrance ;
but as to the " Birchfield "' property, the Real
Estate Charges Act, 1854, applied, and there-
fore the mortgage debt was primarily payable
out of it. Held also, that, the residue of the
estate being insufficient for the payment of
debts, the property brought in by reason of
the widow's election was liable to contribute
pari passu with the testator's property in dis-
charging his debts. Cooper v. Cooper
(U L. J. Ch. 6, 14; L. E. 7 H. L. 53, 69)
applied. Williams, In re; Cunliffe v.
Williams. 84 L. J. Ch. 578; [1915] 1 Ch.
450— Eve, J.
Personalty to be Held on same Trusts as
Proceeds of Sale.]^ — A testator, after devising
his land in strict settlement, gave his trustees
a power of sale, and declared that the moneys
arising from any such sale should, subject to
a power of interim investment, be re-invested
in land. He then bequeathed all his residuary
personal estate to his trustees upon the trusts
and with and subject to the powers and pro-
visions applicable to moneys to arise from a
sale under the powers of sale thereinbefore
contained : — Held, that the residuary personal
estate must be treated as realty, though not
actually laid out in the purchase of land.
Held, also, that the devisees being put to
election in respect of the devised real estate,
such election, on the true construction of the
will, extended so as to include the residuary
personal estate. Upton-Cottrell-Dornier, In
re; Upton V. Upton, 84 L. J. Ch. 861;
112 L. T. 974; 31 T. L. E. 260— Eve, J.
ELECTION LAW.
A. Parliamentary.
1. Registration of Voters.
a. Ownership, 534.
b. Occupiers, 535.
c. Service Franchise, 537.
d. Lodgers, 538.
e. Successive Occupation, 540.
/. Eating, 541.
g. Making, Publication, and Delivery
of Lists, 541.
h. Notice of Objections. 542.
t. Revising Barrister, 543.
/. Appeals, 544.
2. Election of Members, 544.
B. Municipal.
1. Burgesses, 544.
2. Election to Corporate Offices, 545.
C. Local Boards. See Local Government.
A. PAELIAMENTAEY.
1. Eegistratiok of Voters.
See also Vol. VI. 3, 1900.
a. Ownership.
County Yote — Ownership Qualification — Re-
ceipt of Rents and Profits.] — Four persons
claimed to have their names inserted in the
list of ownership voters for the parish of
Trowbridge. The houses which formed the
qualifying property were devised to the
mother of the four claimants. At her death
it was believed that her husband, the father
of the claimants, took a life estate in the
houses, and the trustee for some years paid
the rents to him. It was afterwards found
that he had no life interest, and that the
property had passed to his children, and they
thereupon authorised the trustee to pay the
money direct to their father as before. The
Revising Barrister having disallowed the
claims, — Held, that under the circumstances
there had been a " receipt " by the claimants
" of the rents and profits " of the property
'■ for their own use " within the meaning
of section 26 of the Representation of the
People Act, 1832, and that they were entitled
to be registered as ownership voters. White
V. Bown, 82 L. J. K.B. 89: [1913] 1 K.B. 78 ;
108 L. T. 159; 77 J. P. 78: 11 L. G. E. 23;
2 Smith, 386; 29 T. L. E. 63— D.
Freehold Premises in Parliamentary
Borough — Occupation by Freeholder of Flat
in Freehold Premises — " House ... or other
building occupied by himself."^ — The appel-
lants claimed the county franchise in respect
of their ownership in each case of a freehold
house situate in a Parliamentary borough.
Each house was divided into two flats — an
upper and a lower — each appellant respec-
tively occupying the upper flat, and being
registered as a voter in respect of such
occupation in Division I. of the occupiers*
list for the parish in the said borough in
which the flats were situate. In one case
the lower flat was in the occupation of a
tenant, who w'as also in Division I., while
in the other it was vacant : — Held, that each
of the four flats was a separate freehold for
the purposes of the county franchise ; that
the appellants were not in occupation of the
lower flats within the meaning of section 24
of the Eepresentation of the People Act, 1832,
and, consequently, that each was entitled to
the county franchise in respect of his freehold
interest in such lower flats respectively.
Douglas v. Sanderson : Potts v. Sanderson,
80 L. J. K.B. 294; [1911] 1 K.B. 166;
103 L. T. 841; 75 J. P. 108: 9 L. G. R. 1 ;
2 Smith. 2.34: 55 S. J. 94: 27 T. L. R. 81
— D.
535
ELECTION LAW.
536
b. Occupiers.
" Inhabitant occupier " — Dwelling House —
Tenant of Part of House — Landlord's Residence
in House — Landlord's Control — Evidence to
Rebut. ^ — The tenant of rooms forming part
of a dwelling house in a borough, in which
dwelling house the landlord resides, is not
entitled, in virtue of his occupation of the
rooms, to the borough franchise as an
inhabitant occupier of a dwelling house under
section 3 of the Representation of the People
Act, 1867, unless he rebuts the presumption
of the landlord's right of control over the
rooms arising from the latter's residence in
the house ; and he does not rebut that pre-
sumption by merely proving that the landlord
has never expressly claimed any right to enter
into or exercise control over the rooms, or in
fact entered or exercised any control over
them, the circumstances not having been such
as to require the latter to claim such right
or exercise any control, and that no services
have been rendered to him in the rooms by
the landlord. Kent v. Fittall (No. 4),
81 L. J. K.B. 82; [1911] 2 K.B. 1102;
103 L. T. 668: 9 L. G. R. 27; 75 J. P. 113;
2 Smith, 279; 27 T. L. R. 79— D. See s.c. in
C.A. (infra).
Objection — Prima Facie Proof — Evidence —
Rebuttal.] — At the Court of a Revising
Barrister an objector proved that a person,
whose name appeared in a list of voters as the
inhabitant occupier of a dwelling house,
occupied rooms in a house which itself would
ordinarily be described as a dwelling house,
that the landlord resided in the house, and
that the landlord was rated for the whole
house. The name of the same person had, in
the previous year, appeared in the similar list
for the same qualifying property, the same
objector had then made the same objection
and proved the same facts, the person objected
to had given evidence and been cross-
examined, and the same Revising Barrister
had retained his name in the list. The
Revising Barrister refused to require the
person objected to to adduce evidence or to
be cross-examined, and held that the objec-
tion failed, upon the ground that in the
circumstances prima facie proof of the
objection had not been given : — Held, that
the decision of the Revising Barrister was
wrong, inasmuch as prima facie proof of the
objection had been given and there was no
evidence before him to rebut it. Kent v.
Fittall (No. 5), 105 L. T. 428; 9 L. G. R.
1186— C.A.
Evidence of Parting v?ith Control — Hearsay
— Question of Fact — Admissibility of Evidence,]
— The name of A. B. appeared on the occupa-
tion list in respect of his occupation of a
dwelling house at No. 20 W. Street. Notice
of objection was given, and it was admitted
that the house in which A. B.'s rooms were
situate was an ordinary dwelling house ; that
the landlady resided in the house and paid
rates for the whole house. The Revising
Barrister then held that prima facie proof of
the objection had been given so as to satisfy
the Registration Act, 1878, s. 28, sub-
ss. 10, 11. In order to ascertain the facts,
the Revising Barrister proceeded to examine
the person employed by the town clerk for
the purpose of verifying the accuracy of the
entry on the list. He was one of a staff of
official canvassers whose duty it was to call
at the several houses and obtain from the
resident landlord, or some other person com-
petent to give it, all necessary information as
to the terms of the occupation of the respective
inmates. The canvasser produced his canvass
book containing his notes made at the actual
time of each enquiry, and reading therefrom
deposed on oath that he had been expressly
informed by the landlady of the house in
question that the premises occupied by A. B.
were let to him unfurnished ; that he had
separate and exclusive occupation ; that she
performed no services whatsoever for him and
exercised no control over the premises. On
this evidence, which was uncontradicted, the
Revising Barrister decided that the prima
facie evidence was rebutted, and he retained
the name of the voter on the list of voters : —
Held, that it could not be said that the
evidence so given was directed to a question
of fact solely within section 65 of the Parlia-
mentary Voters' Registration Act, 1843, so
that there was no appeal from the decision of
the Revising Barrister : and that there was
not sufficient or proper evidence to establish
the relinquishment by the landlady of the
right to control, and therefore the objection
had not been rebutted. .Astell v. Barrett.
103 L. T. 905 ; 9 L. G. R. 253 : 75 J. P. 225 :
2 Smith, 256; 55 S. J. 237; 27 T. L. R. 205
— D.
A widower was enrolled as a county voter
as tenant of a house which consisted of
three rooms and a kitchen. He, however,
only occupied one of the rooms, the rest of
the house being occupied by his daughter
and her husband and family. The daughter
cooked her father's meals in the kitchen, but
he partook of them in his own room. His
son-in-law paid him half the total rent and
taxes, and owned the furniture in the portion
of the house occupied by himself and his
family. All the apartments and the street
door were fitted with locks and keys, the key
of the street door being left in the lock, and
the last person coming in at night locking the
door : — Held, that the inference from these
facts was that the father-in-law retained the
control of the house, and accordingly that the
son-in-law was not entitled to the franchise
as an inhabitant occupier of a separate
dwelling. Gregory v. Traquair, [1912] S. C.
637— Ct. of Sess.
Tenant not Separately Rated — Constructive
Rating.! — The tenant of rooms forming part
of a dwelling house in a borough, in which
dwelling house the landlord resides, is not
entitled, in virtue of his occupation of the
rooms, to the borough franchise as an inhabi-
tant occupier of a dwelling house under
section 3 of the Representation of the People
Act, 1867, unless he or some other person is
separately rated and pays separate rates for
the rooms ; and he cannot avail himself of the
fact that the landlord is rated for the house
as a whole, the cases of constructive rating
537
ELECTION LAW.
538
of the occupier where rates are paid by the
owner being limited to the case of a dwelling
house or tenement wholly let out in apart-
ments or lodgings under section 7 of the above
Act, and the case of small tenements under
sections 3 and 4 of the Poor Rate Assessment
and Collection Act, 1869. Kent v. Fittall
(No. 4), 81 L. J. K.B. 82 ; [1911] 2 K.B. 1102 ;
105 L. T. 422; 9 L. G. E. 999; 75 J. P. 378;
2 Smith, 279; 55 S. J. 687; 27 T. L. R. 564
— C.A.
c. Service Franchise.
Married Soldiers Living in Barracks.] —
Married officers and non-commissioned officers
occupied during the qualifying period, with
their wives and families, quarters in barracks
allotted to them. They took their meals in
their quarters; each had a key, and could go
in and out of his quarters during the day
without hindrance. The quarters consisted of
a sitting room, with one or more bedrooms
and scullery. The barracks were subject to
military control. The commanding officer,
who lived outside the barracks, could move an
officer to other quarters. Quarters were liable
to inspection, and non-commissioned officers
could not be out of barracks after midnight
without a pass, and lights in quarters were to
be out at a certain hour : — Held, that each
officer or non-commissioned officer occupied his
quarters as a dwelling house by virtue of
service, and was entitled to the franchise.
McDaid v. Barton (4 Lawson, 61) distin-
guished. Steele v. Bowling, [1914] 2 Ir. E.
432— C.A.
Attendant in Lunatic Asylum.] — An atten-
dant in a lunatic asylum had the separate and
exclusive use and occupation of a room in an
asylum, primarily used as a bedroom. There
were in the asylum a dining room and
recreation room for the attendants, but each
attendant was at liberty to receive guests in
his own room, and it was the practice for the
attendant when off duty to read in his private
room, and to provide himself there with food
or delicacies in addition to the meals supplied
in the dining room. Each attendant had a
key to his room, but the same key opened all
the rooms in the block. He could not light a
fire in his room without leave of the medical
superintendent. The attendants had no con-
tractual right to any special rooms, but in
practice they were never moved from one to
another. They used the rooms as sitting as
well as bedrooms. The furniture belonged to
the asylum, but any decorations belonged to
the attendants. The outer gate of the asylum
was closed at a particular hour at night, after
which no attendant was allowed in or out
without special leave. The Eevising Barrister
found as a fact that the room occupied by an
attendant, whose name appeared on the list
of registered voters and was objected to, was
a dwelling house, and occupied as such by
the attendant during the qualifying period : —
Held (Cherry, L.J., dissenttente). that there
was no evidence on which the Eevising
Barrister could properly act that the occupa-
tion of the room by the attendant was as a
dwelling or dwelling house within section 3
of the Representation of the People Act, 1884,
or otherwise than as a bedroom merely.
Stribling v. Halse (55 L. J. Q.B. 15;
16 Q.B. D. 246) disapproved. O'Brien v.
M'Carthy, [1912] 2 Ir. R. 17— C.A.
" Person under whom " Claimant " serves."]
— The supreme authority in an asylum was
the^ chief medical superintendent, who con-
trolled, with power of appointment and
dismissal, an assistant medical superintendent
and the attendants. The assistant medical
superintendent had, under the chief, wide
powers of suspension and control, the atten-
dants in the asylum being subject to his
orders, and in the chief's absence he exercised
full power of control. The chief lived in a
separate house, but the assistant occupied
rooms in the asylum, and in respect of this
occupation was enrolled as a Parliamentary
elector under the service franchise. An atten-
dant in the asylum, who also occupied a
bedroom there, having claimed the service
franchise, it was objected that he was not
entitled thereto in respect that the asylum
was inhabited by a person — namely, the
assistant medical superintendent — " under
whom " the claimant served within the mean-
ing of section 3 of the Eepresentation of the
People Act, 1884 : — Held, that the person
under whom the claimant served in the sense
of the Act was the chief, and not the assistant
superintendent, and that, accordingly, he was
entitled to be put upon the roll. Shortt v.
Wright, [1911] S. C. 489— Ct. of Sess.
Rating and Payment of Rates — Rating and
Payment of Master.] — In order to qualify a
servant to be put on Division II. (Service) of
the Occupation List of Parliamentary Voters,
the rating of and payment of rates by the
master for the premises in respect of which
the servant claims is sufficient, and he is, by
the operation of section 3 and section 9, sub-
section 8 of the Eepresentation of the People
Act, 1884, to be deemed to be an inhabitant
occupier of such premises as a tenant, and to
be rated and to have paid the rates within
the meaning of section 3 of the Eepresentation
of the People Act, 1867. Chesterton v.
Gardom. 81 L. J. K.B. 198; [1912] 1 K.B.
176; 105 L. T. 300; 9 L. G. R. 1274; 76 J. P.
78: 2 Smith, 353; 56 S. J. 92; 28 T. L. R. 55
-D.
d. Lodgers.
Occupation as Sole Tenant — Wife and
Children of Occupier Sleeping in Rooms
Occupied — Lodgings Occupied "separately
and as sole tenant."! — An appellant, who
had claimed the lodger francliise, occupied
during tlie requisite qualifying period two
bedrooms in a house. He and his wife slept
in one of the rooms and his three daughters
slept in the other room. If let unfurnished
the two rooms jointly were of sufficient value
tc. confer the lodger franchise, but the room
in which the appellant and his wife slept was
not of sufficient value. The appellant in
another case occupied with his wife and two
children during the qualifying period one bed-
room in a house, the children sleeping in the
539
ELECTION LAW
540
room : — Held, that the appellant occupied
" separately and as sole tenant " the room in
which his daughters slept, and in the second
case the room which he occupied with his
wife and children, and that the appellant in
each case was entitled to the lodger franchise.
Searle v. Staffordshire County Council (Clerk),
104 L. T. 61; 75 J. P. 116; 9 L. G. E. 24;
2 Smith, 244— D.
Occupation "separately and as sole
tenant " — Room Occasionally Shared with
Guest.] — A son paid for and had the sole right
to occupy a bedroom in his father's house : —
Held, that the fact that during the period of
qualification for the lodger franchise he had
occasionally ex gratia allowed a young brother
(who could have had a bed of his own) to sleep
in the room with him did not prevent him
from having occupied the room separately and
as sole tenant. Milne v. Douglas, [1912]
S. C. 635— Ct. of Sess.
Occupation of Rooms in Part Remuneration
for Lodger's Services.] — An assistant priest,
who was provided with board and lodging in
the rectory of the priest to whom he was
assistant, and whose salary was fixed on
the basis that he was so provided, — Held,
entitled to the lodger franchise, the rooms
occupied exclusively by him being of the
requisite value. Doyle v. Craig, [1911] S. C.
493— Ct. of Sess.
Member of Brotherhood Occupying Room in
College.] — A member of a voluntary associa-
tion or brotherhood, which devoted itself to
teaching, occupied a bedroom in a college
belonging to the brotherhood. He was not
paid for his services, but was provided with
board, lodging, clothing, and everything
necessary for his maintenance : — Held, that
he was not a lodger for the purposes of the
franchise, in respect that there was no con-
tract, either express or implied, between him
and the brotherhood, under which he had a
right to occupy the room. Doyle v. Craiq
([1911] S. C. 493) distinguished. O'Connell
V Blacklock, [1912] S. C. 640— Ct. of Sess.
Occupier or Lodger.] — See cases under (b)
(supra).
Rateable Value of House — Rebutting Decla-
ration.]— The appellant, in due form and with
the proper declaration, claimed to have his
name inserted in the list of lodger voters.
The declaration stated that the appellant paid
5s. a week for a furnished bedroom. The
rateable value of the hous'e in which the
appellant lodged was less than 14?. per annum.
The appellant did not appear at the Bevision
Court to support his claim, although notice
had been served that his claim would be
opposed. The Revising Barrister held that
the prima facie case established by the declara-
tion attached to the claim had been rebutted,
and disallowed the claim : — Held, that the
Revising Barrister was entitled to weigh the
prima facie case made by the declaration
against the rebutting case furnished by the
rate book, and in the absence of further
evidence to hold that the claim was not
established. Ainsworth v. Cheshire County
Council (Clerk), 104 L. T. 62; 75 J. P. 117;
9 L. G. R. 21; 2 Smith, 248; 27 T. L. R. 82
— D.
The rateable value of a house in which
lodgings are let is an admissible but not con-
clusive test of the sufficiency or otherwise of
the annual value of the lodgings to support
the lodger's claim to a vote; and a Revising
Barrister may properly entertain such evi-
dence of rateable value so long as he does
not treat it as conclusive, to the exclusion
of other evidence for or against the claim.
Rex V. Allen; Griffiths, Ex parte, 74 J. P.
454; 8 L. G. R. 979; 2 Smith, 227— D.
e. Successive Occupation.
Occupation of Part of House — Subsequent
Occupation of Entire House.] — J.'s name
appeared on the list of voters as " inhabitant
householder " of part of a house. J. had
during portion of the qualifying period in fact
occupied part of the house, a sub-tenant of
J.'s occupying the remaining part; but on
the determination of the sub-tenancy J. went
into possession of and occupied the entire
house during the remainder of the qualifying
period : — Held (Lord O'Brien, L.C.J. , dissent-
ing), that the claimant was entitled to
a vote, and that it was unnecessary that the
qualifying premises should have been set out
in the list of voters as a house in succession
from part to the whole of the premises.
Jackson v. Mahon, [1911] 2 Ir. R. 318— C. A.
f. Rating.
Borough Franchise — Inhabitant Occupier —
Rating — Tenant not Separately Rated — House
" wholly let out in apartments or lodgings."]
— By section 7 of the Representation of the
People Act, 1867, where a dwelling house is
" wholly let out in apartments or lodgings not
separately rated, the owner of such dwelling
house . . . shall be rated in respect thereof to
the poor rate." The appellant claimed to be
put on Division I. of the occupiers' list of
voters in respect of his occupation of certain
premises as tenant under section 3 of the
Representation of the People Act, 1867. He
occupied separately one-half of an ordinary
dwelling house — which was not structurally
divided — on the " half-house " system, the
other half being similarly occupied by another
tenant, the passages, front door, &c., being
used by them in common, the landlord not
residing in nor reserving to himself any part
of the house. The appellant was not rated
in respect of his occupation : — Held, that the
house was "wholly let out in apartments";
that the landlord ought, consequently, to have
been rated in respect thereof by virtue of
section 7; and that, therefore, under section 19
of the Poor Rate Assessment and Collection
Act. 1869, and section 14 of the Parliamentary
and Municipal Registration Act, 1878, the
appellant must be deemed to be rated, and.
being otherwise properly qualified, was entitled
to have his claim allowed. Croin v. Hilleary.
82 L. J. K.B. 380; [1913] 1 K.B. 385;
108 L. T. 300; 77 J. P. 164; 11 L. G. R. 226;
2 Smith, 410; 29 T. L. R. 147— D.
541
ELECTION LAW
542
Landlord not Residing in House — Rates
Paid by Landlord — Qualification of Occupier.]
— The appellant had during the whole of the
qualifying period been the inhabitant occupier
as tenant of a dwelling house which was
separately rated, the rateable value being 12/.
The landlord, who did not reside in the house,
paid all the rates under an arrangement
entered into with the rating authority. His
name, as well as that of the appellant,
appeared in the rate book, but there was
evidence that the rating authority considered
that the ultimate liability for the rates rested
upon the appellant, and that in case the
landlord made default they would have
enforced payment against the appellant. The
overseers having inserted the appellant's
name in Division I. of the occupiers list, —
Held, that the appellant was the rated occu-
pier of the house, and had paid the rates
through his landlord, and that his name must
therefore be retained in the list. Kevt V.
Fittall (81 L. J. K.B. 82 ; [1911] 2 K.B. 1102)
distinguished. Smith v. Neivman, 81 L. J.
K.B. 183; [1912] 1 K.B. 162; 105 L. T. 631;
9 L. G. R. 1254; 76 J. P. 25: 2 Smith, 327;
56 S. J. 16; 28 T. L. E. 19— D.
Occupier of Separate Floor of House — Land-
lord Rated in Respect of Whole House.] —
The appellant occupied part of an ordinary
house, the whole of which was rented by a
doctor, who was the rated occupier, who used
the ground floor and paid the rates for the
whole house. The top floor was occupied by
the appellant, and the first floor by another
claimant. The appellant's name did not
appear in the occupiers' column of the rate
book, but for part of the qualifying period
only it did appear in the column headed "Repre-
sentation of the People Act, 1884," as follows :
"Josh Havercroft. Top floor." The appellant
contended that he was entitled to be put on the
occupiers' list either as a householder or as a
10/. occupier : — Held, following Kent v.
Fittall (81 L. J. K.B. 82; [1911] 2 K.B. 1102),
that the appellant was not entitled to be put
on the register, inasmuch as the premises
occupied by him had not been rated as a
separate hereditament and no rates had been
paid in respect of them. Havercroft v. Detvey.
108 L. T. 296; 77 J. P. 115; 11 L. G. R. 28;
2 Smith, 393; 29 T. L. E. 62— D.
g. Making, Publication, and Delivery of Lists.
See aho Vol. VI. 69. 1912.
Yestry Clerk — Obligation in Making Out
Lists of Yoters.1 — Under section 7 of the
Vestries Act. 1850, the obligation imposed
upon the vestry clerk to " prepare, make out,
and publish " lists of voters does not extend
to cover the verification at his own expense
of the accurac}' of the returns made by owners.
Rex V. Davie.'!; Peake, Ex parte, 80 L. J.
K.B. 993; [1911] 2 K.B. 669; 104 L. T. 778;
75 J. P. 265 ; 9 L. G. R. 564— D.
Parliamentary Borough — More than One
Municipal Borough within its Boundaries —
Creation of New Municipal Borough — New
Borough having Largest Population — Lists of
Parliamentary Voters — Delivery to Town Clerk
of Original Municipal Borough.] —Under the
Representation of the People Act, 1867, the
Parliamentary borough of The Hartlepools
comprised the municipal borough of Hartlepool
and three townships. The municipal borough
of West Hartlepool was created in 1887, and
the Parliamentary borough of The Hartlepools
then consisted of the municipal boroughs of
Hartlepool and West Hartlepool and portions
of three townships. According to the last
census, the municipal borough within the.
Parliamentary borough of The Hartlepools
having the largest population was the muni-
cipal borough of West Hartlepool. On the
completion of the revision of the lists of voters
the town clerk of West Hartlepool claimed
that the revised lists of voters should be
delivered to him. The Revising Barrister
decided that the town clerk of Hartlepool was
the proper person to receive the revised lists
of Parliamentary voters, as the writs of elec-
tion had on the occasion of every Parliamen-
tary election since 1867 been directed to the
mayor of Hartlepool : — Held, that, inasmuch
as the writs of election for all the Parlia-
mentary elections since 1867 had always been
directed to the mayor of Hartlepool, he was
entitled under section 12, sub-section 4 of the
Redistribution of Seats Act, 1885, to be the
returning officer for the Parliamentary borough
of The Hartlepools, and that, therefore, the
town clerk of Hartlepool was the proper person
to receive the revised lists of Parliamentary
voters from the Revising Barrister. Rex v.
Maca.skie ; West Hartlepool Corporation, Ex
parte. 83 L. J. K.B. 1158; [1914] 3 K.B. 62;
111 L. T. 160; 78 J. P. 333; 12 L. G. R. 964;
2 Smith, 427— D.
Municipal Borough a County of itself —
Two Mayors in One Parliamentary Borough.]
— The provisions of the Municipal Corpora-
tions Act, 1882, s. 224, sub-s. 1, which
provides that " In boroughs, other than cities
and towns being counties of themselves, the
mayor shall be the returning officer at par-
liamentary elections; . . ." and sub-section 2,
which enacts that " If there are more mayors
than one within the boundaries of a parlia-
mentary borough, the mayor of that borough
to which the writ of election is directed shall
be the returning officer," taken in conjunction
with section 12, sub-section 4 of the Redistri-
bution of Seats Act, 1885, have no application
where one of such boroughs is a city or town
being a county of itself ; and where the writ
of election has formerly been directed to the
sheriff of such borough, he still remains the
returning officer, and the town clerk of such
borough is entitled to receive the revised list
of voters. Rex v. Richards ; Rex v. Williams;
Llanelly Corporation, Ex parte, 84 L. J.
K.B. 2217; [1915] 3 K.B. 402; 31 T. L. R.
581— C. A.
Decision of Divisional Court (84 L. J. K.B
484; [1915] 1 K.B. 299) affirmed. 7b.
h. Notice of Objections.
See also Vol. VI. 76, 1913.
Objector's Place of Abode — List upon which
Name of Objector Appears.^ — A notice of
objection to the name of a person being
543
ELECTION LAW.
544
retained on a list of electors for a parish is not
invalid by reason of the omission of the
parish from the statement of the objector's
place of abode if it can reasonably be inferred
that the place of abode stated is within the
parish. Hall v. Jones, 84 L. J. K.B. 973;
112 L. T. 693; 13 L. G. R. 622; 3 Smith, 8;
31 T. L. R. 125— D.
Where a Parliamentary borough is divided
into two divisons, it is not necessary for an
objector to state, in his notice of objection,
for which of the two divisions he is registered
as an elector. The only requirement is that
he should state that he is on the list of
electors for the parish. lb.
i. Revising Barrister.
See also Vol. VI. 93, 1914.
Lists of Voters — Omission through Inad-
vertence to Expunge Names of Persons
Successfully Objected to — Lists with Names
not Expunged Handed to Town Clerk —
Register Printed from Lists Containing Names
Successfully Objected to — Power of Court to
Order Revising Barrister to Correct Mistake —
Lists Lost or Destroyed — Mandamus.] — A
Revising Barrister in the course of revising
the list of voters of a Parliamentary borough
decided that the names of 316 persons who had
been duly objected to should be expunged from
the lists of voters, and be duly read out in
open Court the names so expunged. In conse-
quence, however, of an accident, the Revising
Barrister was unable to write, and had to
avail himself of clerical assistance in striking
off the lists of voters the names of persons
successfully objected to. The lists of voters,
which were copied and printed by the town
clerk of the borough from the revised lists of
voters delivered to him by the Revising
Barrister, and which formed the register of
electors for the borough, contained, as printed,
the names of the 316 persons which had been
directed by the Revising Barrister to be
expunged, those names having been retained
on the lists of voters through some mistake or
inadvertence. In July of the following year
the mistake was discovered, a Parliamentary
election being then pending. The original
lists of voters handed to the town clerk were
then either lost or destroyed : — Held, that the
Court had power, notwithstanding the lapse of
time and the fact that the original lists were
destroyed, to order the Revising Barrister to
correct the mistake by making on a •-•opy of
the register the alterations which ought to have
been made in the original lists of voters —
namely, by striking off the register the names
of those 316 persons, and to direct the town
clerk to insert those corrections in his copies
of the register. Rex v. Hanley Revising
Barrister; Rex v. Stoke-on-Trent (Town
Clerk), 81 L. J. K.B. 1152 ; [1912] 3 K.B. 518 ;
76 J. P. 438; 10 L. G. R. 842; 2 Smith, 361;
28 T. L. R. 531— D.
Power to Amend — Bona Fide Mistake not
Tending to Mislead.] — Where the name of a
voter, otherwise duly qualified, appeared in
the supplemental list of inhabitant house-
holders for the registration unit of A, polling
district of B, and the qualifying premises were
situate in the same unit, polling district of C,
and the Revising Barrister, being satisfied that
the error arose from a bona fide mistake, and
that no person had been thereby misled or
prejudiced, transferred the name from the list
for B to the list for C, — Held, that he had
power to make such amendment. Gregg v.
Kennedy, [1911] 2 Ir. R. 196— C. A.
j. Appeals.
See also Vol. VI. 105, 1919.
Person to Sign Case — Person Interested in
Appeal— Person Signing as Agent.]— Where a
Revising Barrister states a Case upon appeal,
the person signing as appellant should be a
person really interested in the appeal, and not
a person who merely signs as agent. White
V. Bown, 82 L. J. K.B. 89; [1913] 1 K.B. 78;
108 L. T. 159; 77 J. P. 78; 11 L. G. R. 23;
2 Smith, 386; 29 T. L. R. 63— D.
Jurisdiction of Court to Consider Point not
Stated.] — Only points of law reserved by the
Revising Barrister in the Case stated by him
can be considered by the Court. Crow v.
Hilleary, 82 L. J. K.B. 380; [1913] 1 K.B.
385; 108 L. T. 300; 77 J. P. 164; 11 L. G. R.
226; 2 Smith, 410; 29 T. L. R. 147— D.
2. Election of Members.
See also Vol. VI. 113, 1919.
Returning Officer — Municipal Borough a
County of itself — Two Mayors in One Parlia-
mentary Borough.]— The provisions of the
Municipal Corporations Act, 1882, s. 244,
sub-s. 1, which provides that " In boroughs,
other than cities and towns being counties of
themselves, the mayor shall be the returning
officer at parliamentary elections " . . ., and
sub-section 2, which enacts that " If there are
more mayors than one within the boundaries
of a parliamentary borough, the mayor of that
borough to which the writ of election is directed
shall be the returning officer " — taken in con-
junction with section 12, sub-section 4 of the
Redistribution of Seats Act, 1885 — have no
application where one of such boroughs is a
city or town being a county of itself ; and
where the writ of election has formerly been
directed to the sheriff of such borough, he still
remains the returning officer. Rex v.
Richards; Rex v. Williams; Llayielly Corpora-
tion, Ex parte, 84 L. J. K.B. 484; [1915]
1 K.B. 299; 112 L. T. 496; 79 J. P. 140;
13 L. G. R. 86 ; 31 T. L. R. 57— D. Affirmed,
84 L. J. K.B. 2217; [1915] 3 K.B. 402;
31 T. L. R. 581— C.A.
B. MUNICIPAL.
See also Vol. VI. 157, 1923.
1. Burgesses.
Residence " in the borough or within seven
miles thereof" — Residence for Part of Qualify-
ing Period Within Seven Miles of, but
Outside, and for Residue of the Period Within,
a Borough.] — Section 9, sub-section 2 (c) of
the Municipal Corporations Act, 18S2, provides
545 ELECTION LAW— ELECTRIC LIGHTING AND SUPPLY.
546
that a person shall not be entitled to be en-
rolled as a burgess unless he has during the
whole of the twelve months then last preceding
July 15 in any year resided in the borough,
or within seven miles thereof : — Held, that
residence for part of the twelve months within
seven miles of, but outside, and for the residue
of the twelve months within, the borough of
which a person claims to be enrolled as a bur-
gess, is a proper qualification therefor by
reason of residence within the meaning of the
section. Lloyd v. Shrewshunj (Town Clerk),
84 L. J. K.B. 446; [1915] 1 K.B. 195;
112 L. T. 456; 13 L. G. R. 265; 3 Smith, 1;
31 T. L. R. 55— D.
2. Election to Corporate Offices.
Election as Mayor and as Alderman — Qualifi-
cation — " Councillor " — Disqualification of
Councillor having Interest in Contract —
"Being."] — A person elected a member of a
borough council, although disqualified under
the provisions of section 12, sub-section 1 (c)
of the Municipal Corporations Act, 1882, for
being elected or for being a councillor by reason
of his having an interest in a contract with
the council, is nevertheless a councillor within
the meaning of section 14, sub-section 3, and
section 15, sub-section 1, and qualified to be
elected alderman and mayor of the borough
where, under the provisions of section 73, his
election is to be deemed to all intents good
and valid because it has not been questioned
within twelve months thereof. And within the
meaning of the above sub-sections he is
"qualified to be a councillor." Forrester v.
}^orton, 80 L. J. K.B. 1288: [1911] 2 K.B.
953; 105 L. T. 375; 75 J. P. 51U ; 9 L. G. R.
991; 55 S. J. 668; 27 T. L. R. 542— D.
" Being " in section 12, sub-section 1 (c),
means " holding the ofBce of." Ih.
Borough Council — Member of Committee —
Power to Resign.] — A member of a borough
council appointed member of a committee of
the council under the powers of section 22,
sub-section 2 of the Municipal Corporations
Act, 1882, does not hold a public office within
the operation of the common law rule that a
person qualified and duly elected to serve in
a public office cannot refuse to serve, and con-
sequently such member of a committee may
resign. Rex v. Sunderland Corporation,
80 L. J. K.B. 1337; [1911] 2 K.B. 458;
105 L. T. 27; 75 J. P. 365; 9 L. G. R. 928;
27 T. L. R. 385— D.
ELECTRIC LIGHTING
AND SUPPLY.
See aUo Vol. VI. 219. 1930.
" Supply " of Electricity — Sale of Electric
Fittings— Ultra Yires.]— There is nothing in
the Electric Lighting Act, 1882 (even when
read in conjunction with the Electric Lighting
■ Act, 1909), to justify undertakers, who have
' obtained powers to " supply " electric energy
j under a Provisional Order made under that
statute, to engage in the sale, or hire, of
apparatus for the use of the energy thus sup-
plied by them. On the contrary, the powers
bestowed upon them under the statute are
completely exhausted the moment that they
have supplied electric energy at the consumer's
terminals. Att.-Gen. v. Leicester Corporation,
80 L. J. Ch. 21; [1910] 2 Ch. 359; 103 L. T.
214 ; 74 J. P. 385 ; 9 L. G. R. 185 ; 26 T. L. R.
568— Neville, J.
Common Law Powers of Municipal Cor-
poration.]— Under the Electric Lighting Acts
and Provisional Orders made thereunder a
municipal authority has no power to carry on
the trade or business of supplying electric
fittings and wires for use by those to whom
they supply electrical energy or by others.
While a municipal corporation may have a
common law right to carry on such a trade or
business, it has no power to use for that pur-
pose funds raised under statutory authority
for the purpose of supplying electrical energy.
Att.-Gen. v. Leicester Corporation (80 L. J.
Ch. 21; [1910] 2 Ch. 359) followed. Att.-
Gen. V. Sheffield Corporation, 106 L. T. 367;
76 J. P. 185; 10 L. G. R. 301; 56 S. J. 326;
28 T. L. R. 266— Eve, J.
Differentiation by Undertakers in Charges
to Different Consumers — " Similar circum-
stances " — "Undue preference."] — Under-
takers for the supply of electricity, subject to
the provisions of the Electric Lighting Act,
1882, proposed to make a higher charge for the
supply of power to those consumers who took
a supply for power only, or for power and
partial lighting, than to consumers who took
from them exclusively for both power and
lighting : — Held, that this proposal was a
breach of section 19 of the Act, which provides
that every consumer is to be entitled to a
supply on the same terms on which any other
consumer is entitled under similar circum-
stances to a corresponding supply; and that
it was an " undue preference " within
section 20 of the Act. Long Eaton Urban
Council V. Att.-Gen., 84 L. J. Ch. 131; [1915]
1 Ch. 124; 111 L. T. 514; 79 J. P. 129;
13 L. G. R. 23; 31 T. L. R. 45— C. A.
Decision of Sargant, J. (83 L. J. Ch. 774;
[1914] 2 Ch. 251), affirmed. Ih.
To carry on the trade or business of provid-
ing, selling, or letting on hire electric lamps,
electric heating apparatus, electric motors, or
other electric fittings, appliances, or apparatus,
is tiltra vires of a local authority. A reduction
by the local authority in the price for electricity
in respect of houses electrically lighted
throughout constitutes an " undue preference "
within the meaning of sections 19 and 20 of
the Electric Lighting Act, 1882. Long Eaton
Urban Council v. Att.-Gen. (84 L. J. Ch. 131:
[1915] 1 Ch. 124) applied. Att.-Gen. v. Word
Urban Council, 84 L. J. Ch. 860; 13 L. G. R.
441— Sargant, J.
Provisional Order — Laying Mains — Board of
Trade Sanction to Overhead Mains — Erection
of Standard on Highway — Street or Part of a
18
547
ELECTRIC LIGHTING AND SUPPLY.
548
Street — Portion not Repairable by Inhabitants
at Large — No Consent of Owner of Soil —
Mandatory Injunction/ — The plaintiff was the
owner and occupier of a hotel which fronted
on a street. The hotel was erected on land
which, at the time when the hotel was erected,
was bounded by an old parish road. It was
set back four or five feet from the boundary of
the road, a pavement being laid in front by
the plaintiff's predecessor in title (his father)
upon his own land. The defendants (a local
authority) having obtained a Provisional
Order (duly confirmed) for the supply of elec-
trical energy, which empowered and required
them to lay distributing mains in the street
on which the hotel fronted, subsequently
obtained the sanction of the Board of Trade
to a supply by means of overhead mains in
that street. For the purposes of that supply,
but without the consent either of the plaintiff
or of the Board of Trade, they erected a
standard on the pavement in front of, and
close to, the hotel, and fixed it below the soil
into the footings of the hotel wall. The paved
strip of land had never been acquired by the
defendants ; it had become a highway as
having been dedicated by the plaintiff's father
to the use of the public ; but it was not repair-
able by the inhabitants at large. It remained
the property of the plaintiff, who, although
not legally liable to repair the pavement, had
done so from time to time. The plaintiff
having brought an action for a mandatory in-
junction to compel the defendants to remove
the standard. — Held, by Warrington, J.,
applying Escott v. Newport Corporation
(73 L. J. K.B. 693; [1904] 2 K.B. 369), that,
the defendants having, under clause 21 of the
schedule to the Electric Lighting (Clauses)
Act, 1899, and the corresponding section of
their Provisional Order, power to lay mains in
the street, and the pavement being part of the
street, they were entitled to place the standard
on the pavement, as being necessary and
incidental to the work they had to carry out,
and that the plaintiff's remedy (if any) was
a claim for compensation under section 68
of the Lands Clauses Consolidation Act, 1845.
Held, by all the members of the Court of
Appeal (reversing Warrington, J.), that the
plaintiff was entitled to a mandatory injunc-
tion for the removal of the standard on the
ground that the fixing of the standard into
the footings of the hotel wall without the
plaintiff's consent was a breach of section 7 of
the Gasworks Clauses Act, 1847, which was
incorporated in the Electric Lighting Act,
18R2; and also (by Cozens-Hardy, M.E., and
Buckley, L.J. ; Kennedy, L.J., dissenting) on
the ground that, upon the true construction
of section 13 of the Electric Lighting Act, 1882,
and section 12, sub-section 2 of the schedule
to the Electric Lighting (Clauses) Act, 1899—
which prohibit the breaking up or interference
with any street or part of a street not repair-
alile by the local authority without the consent
of the person by whom the same is repairable,
or of the Board of Trade after notice to such
person — it was not competent to the defen-
ants under the circumstances to break open
any portion of the pavement opposite the
plaintiff's hotel. Kennedy, L.J.. considered
that these latter sections had no application,
inasmuch as there was no person by whom the
pavement in question was repairable, and con-
sequently there was no person whose consent
could be obtained. Andrews v. Abertillery
Urban Council, 80 L. J. Ch. 724; [1911] 2 Ch.
398; 105 L. T. 81; 75 J. P. 449; 9 L. G. E.
1009 — C. A. Reversing, 55 S. J. 347 —
Warrington, J.
Connection between Authorised Areas — More
than One Connection between Same Areas.] —
The London Electric Supply Act, 1908, s. 4,
sub-s. 2, which provides that authorised under-
takers or specified companies may " by means
of electric mains make a connection " between
any two or more of their areas of supply or
between any such area and a generating
station, empowers such undertakers or com-
panies to lay more than one connecting main
between any two of their areas. Battersea
Borough Council v. Counttj of London Electric
Supply Co., 82 L. J. Ch. 500; [1913] 2 Ch.
248 ; 108 L. T. 938 ; 77 J. P. 325 ; 11 L. G. E.
1126 ; 29 T. L. R. 561— C. A.
Contract — Construction — Agreement to Grant
Licence to Take Water — Rent Varying with
Certain Contingencies.] — In an agreement for
a licence to take water from a river within
defined limits for the purpose of constructing
works and generating and supplying elec-
tricity, the respondent company agreed to pay
a fixed rental of fifteen thousand dollars a
year, and a rental varying in amount by
reference to the electricity generated and used
and sold or disposed of by the respondent com-
pany : — Held, that in ascertaining the amount
of the varying rent the true standard was the
highest amount or quantity of electricity
generated and used and sold or disposed of
which the accommodation and facilities
afforded enabled the respondents to attain, and
remained the standard until a higher point
was reached. Att.-Gen. for Ontario v. Cana-
dian Niagara Poicer Co., 82 L. J. P.C. 18;
[1912] A.C. 852; 107 L. T. 629— P.C.
Construction and Effect of Agreement
between Two Electric Supply Companies.] —
By the London Electric Supply Act, 1908,
electrical supply companies were authorised to
enter into and carry into effect, with the
approval of the Board of Trade, any agreement
for mutual assistance or for association with
each other in regard to (inter alia) the giving
and taking of a supply of electrical energy and
the distribution and supply of the same so
taken and for the management and working of
anj' part of their undertakings. Two electrical
supply companies obtained statutory powers
to supply electrical energy within the City of
Westminster, and at the expiration of a cer-
tain period the City of Westminster had the
right to acquire the undertakings of the respec-
tive companies. One of the two companies
(the respondents) supplied within the district
of their operations electricity on the system of
continuous current : the other company (the
appellants) supplied electricity on the principle
of alternating current. In 1910 an agreement
was come to by which the respondent com-
pany was to manage the appellants' under-
549
ELECTEIC LIGHTING AND SUPPLY.
550
taking in the Westminster area, receiving and
retaining all amounts due for energy consumed
by the appellants' customers therein. The
appellants were to supply the respondents all
alternating current required by the appellants'
customers in Westminster. The respondents
were to pay to the appellants a fixed annual
sum until the year 1931, when the undertakings
of both parties might be acquired by the
London County Council, and in the event of
the purchase price of the appellants' under-
taking being less than a certain sum the
respondents were to make up the deficiency.
The question between the parties was — first,
whether on the construction of that agreement,
in view of the powers granted by the Electric
Lighting Acts, the respondents were entitled
to reduce the working of the appellants' under-
taking by soliciting persons, who were entitled
to apply and did apply to the appellants to
supply them with electricity, to take their sup-
ply from the respondents instead ; and
secondly, whether under the terms of the
appellants' Provisional Order, 1889, the re-
spondents were entitled to claim a supply from
the appellants, and having acquired the right
to manage the appellants' undertaking as well
as their own had an option to dictate to con-
sumers which supply they should have : —
Held, that the respondents were under a statu-
tory obligation so to manage the appellants'
undertaking as not to lessen its receipts nor
interfere with the consumers' right to be sup-
plied with alternating current ; and further
that they could do nothing which would be
likely to decrease the value of the appellants'
undertaking whenever it should be acquired by
the City of Westminster, although they had
contracted with the appellants that if the pur-
chase price paid was below a certain sum they
should be answerable to make up the price
paid by the City of Westminster to that sum.
London Electric Stipply Corporation v.
Westminster Electric Supply Corporation,
11 L. G. R. 1046— H.L. (E.)
Exclusive Right of Company to Supply
Electrical Energy in Urban District — Tram-
ways— Inclusion of District in Adjoining City.]
^By an Electric Lighting Order of 1899 the
W. Council obtained power to supply electrical
energy in their own district. In 1900 the
council agreed with a company to take their
supply of energy from the company for a
period of ten years ending August 6, 1910. In
1902 the corporation of N. agreed with the
council to take energy for its tramways in the
W. district from the council through the com-
pany during the period of ten years; and that
afterwards (clause 4) it would take the energy
from " the council or their contractors," and
would not itself supply it without the consent
of the council. In 1903 the council assigned
to the company their undertaking under the
1899 Order, with the benefit of the 1902 agree-
ment, and undertook to appoint the company
to be the council's contractor and to do any-
thing necessary to enable the company to enjoy
the full benefit of clause 4 of the 1902 agree-
ment. Clause 9 of the deed of assignment
provided that the council should not sanction
or consent to the taking of any steps by any
person or body other than the company with
the object (inter alia) of supplying electricity
in the council's district, and the clause then
proceeded : " But nothing in this clause shall
prevent the Council after the sixth day of
August, 1910, entering into any agreement
with the N. Corporation in respect of the
laying or placing of electric mains and lines
and the transmission and user of energy in
connection with their tramways undertaking."
By the Newcastle-upon-Tyne (Extension)
Order, 1904, confirmed by a Provisional Order
Confirmation Act of that year, the boundaries
of N. were enlarged so as to include the dis-
trict of W. ; and it was provided that " all the
property, powers, duties, and liabilities "
attaching to the Council under the 1899 Order
should be transferred to the corporation. As
from August 6, 1910, the corporation declined
to take from the company electricity for its
tramways in the former district of the council :
— Held, on the construction of the documents,
that the proviso to clause 9 of the deed of 1903
only reserved to the council a right to consent
as to " the transmission and user " of the elec-
tricity, but not as to its " supply " ; and that,
in view of the assignment of the benefit of the
1902 agreement, neither the council nor the
corporation as their successors, could give
the consent required by clause 4 of the 1903
agreement. And therefore that the corpora-
tion was bound to take from the company the
energy for its tramways in the former district
of W., and that an injunction must go to
restrain the corporation from itself supplying
such energy. Newcastle-upon-Tyne Electric
Supply Co. v. Newcastle-upon-Tyyie Corpora-
tion, 9 L. G. R. 161; 75 J. P. 97— Swinfen
Eady, J.
Negligence — Electrical Supply in Street —
Escape of Electric Spark into Electric
Chamber — Escape of Gas from Main — Leakage
of Gas into Electric Chamber — Explosion —
Injury to Foot Passenger — Liability of Elec-
trical Undertaker." — The prmciple enunciated
in Rylands v. Fletcher (37 L. J. Ex. 161;
L. R. 3 H.L. 330), that a person who brings
into being, or collects on bis premises, an agent
likely to do damage if it escapes, is liable for
the consequences of such escape, does not
apply where, in the absence of negligence or
nuisance, the consequences are the result of a
combination between that agent and another
agent over which the owner or possessor of the
first agent has no control. Goodbody v.
Poplar Borough Council, 84 L. J. K.B. 1230;
79 J. P. 218; 13 L. G. R. 166— D.
A local authority, authorised under the
Electric Lighting Acts to supply electricity
within their district, had, as part of their
system, a brick-built chamber under the pave-
ment of a street within their district, inclosing
a box containing electric cables or wires and
a fusing apparatus which acted as a kind of
safety valve whenever the electric current was
overloaded. The construction of the chamber
and box was that generally adopted by sup-
pliers of electricity. When the " fusing "
took place, electric sparks were emitted from
the " fuse." Near the chamber were the gas
mains of two gas companies, and gas fre-
quently escaped from, the mains and foiind its
way into the chamber. This chamber was
551
ELECTEIC LIGHTING AND SUPPLY— ESTATE.
552
periodically examined, but it was found
impossible to prevent the gas entering therein.
An explosion occurred in this chamber, caused
by a spark from the fusing (which took place
at the time) coming into contact with a mix-
ture of air and gas in the chamber, with the
result that the plaintiff, who was walking
on the pavement close to the chamber, was
injured. In an action brought by him against
the local authority for damages for personal
injuries, the jury found, in answer to ques-
tions put to them by the County Court Judge
with the consent of both parties, that the
chamber did not constitute a nuisance, and
that the defendants were not guilty of negli-
gence in having the chamber improperly con-
structed, and they assessed the damages (if
recoverable) at 2ol. The Judge entered judg-
ment for the defendants : — Held, on appeal,
that his decision was right. lb.
Midivood ((■ Co. v. Majichester Corporation
(74 L. J. K.B. 884; [1905] 2 K.B. 597) and
Charing Cross, West End, and City Electricity
Supply Co. V. London Hydraulic Power Co.
(83 L. J. K.B. 116, 1352; [1913] 3 K.B. 442;
[1914] 3 K.B. 772) distinguished. lb.
ELEGIT.
See EXECUTION.
EMERGENCY
POWERS.
See PRACTICE.
EMPLOYERS' LIABILITY.
See MASTER AND SERVANT; WORK-
MEN'S COMPENSATION.
EQUITABLE
ASSIGNMENT.
See ASSIGNMENT.
ESCROW.
See DEED.
ESTATE.
See also Vol. VI. 222, 1943.
Equitable Estate in Fee — No Words of
Inheritance — Estate for Life or in Fee-simple
— Intention.] — A limitation in a deed of an
equitable estate without words of limitation
may confer the equitable fee where the
intention to do so appears from the deed.
Cross's Trust, In re; Cross v. Cross, [1915]
1 Ir. R. 304— M.R.
By deed, reciting that C. had agreed, in
consideration of B. paying off certain debts
of C, to convey certain lands held in fee-
farm to a trustee in trust for B. and his wife
during their lives, with remainder to C. and
his wife during their lives, with remainder,
subject to a sum of 600L charged in favour of
the eldest son of C. and his issue, in trust for
the children of C. and his wife as he should
appoint, and in default of appointment for all
the children save the eldest son, C. conveyed
the lands unto, and to the use of, a trustee
and his heirs upon the trusts so agreed upon,
the ultimate trust being for the children of
C. as he, or in default his wife, should appoint,
and in default of such appointment " then
to such issue save the eldest son, share and
share alike." The lands were not of very
great value : — Held, that there was sufficient
evidence on the face of the instrument to shew
that it was the intention of the settlor to
dispose of his whole estate, and that the
younger children, notwithstanding the absence
of words of inheritance in the limitation to
them in default of appointment, took an
equitable estate in fee-simple, as tenants in
common in equal shares, in the lands.
Trincjhains Trusts (73 L. J. Ch. 693; [1904]
2 Ch. 487), Houston, In re ([1909] 1 Ir. R.
319), and Stinson's Estate ([1910] 1 Ir. R. 47)
followed. Meyler v. Meyler (11 L. R. Ir.
522) and Bennett's Estate, In re ([1898]
1 Ir. R. 385), not followed. 7b.
Estate for Life and Ultimate Remainder in
Fee — Contingent Remainder Interposed —
Merger of Life Estate and Remainder —
Extinguishment of Charge on Inheritance.] —
A., by her mother's will, was given a life
estate in realty, which, subject thereto, was
to be settled on her issue in such way as she
might desire. In default of issue she was
given a general power of appointment with
remainder to herself in fee. A., at the time
of her mother's death, was entitled to a charge
on the estate. She died at the age of seventy
without having been married, and without
having done any act indicating a desire to
keep the charge alive : — Held, that A. took
under the will an estate in fee, subject to be
re-opened if the contingent estate to the issue
became vested in interest, and that the charge
had become extinguished. Toppin's Estate,
In re, [1915] 1 Ir. R. 198— Ross, J.
Devise to Widow for Life — Remainder to
Son — Executory Gift over on Death of Son —
Conveyance of Life Interest to Son — Death of
Son in Lifetime of his Mother.] — A testator
devised a farm to his widow for life, with
remainder to his son in fee, with an executory
553
ESTATE— ESTOPPEL.
554
gift over in case his son died unmarried in the
lifetime of his mother. The widow conveyed
her life interest to her son, who afterwards
died immarried in the lifetime of his mother :
—Held, that the fact that the executory gift
over took etTect before the determination of the
life interest did not prevent a merger, and that
there had been a merger both at law and in
equity. Attkius, In re; Life v. Attkins,
83 L. J. Ch. 183; [1913] 2 Ch. 619 ; 109 L. T.
155; 57 S. J. 785— Eve, J.
Barring of Estate Tail — Common RecoYcry —
Tenant to the Praecipe.] — In order that a
common recovery should have been effective to
bar an estate tail, the tenant to the prcecipe
must have been seised of the lands for an
estate of freehold, either by right or by wrong.
The presumption of law is that seisin follows
the title, and the Court will not presume
disseisin of a tenant for life for the purpose of
upholding a recovery purporting to have been
suffered by a tenant in tail in remainder.
Witham v. Notley, [1913] 2 Ir. E. 281— C. A.
Grant by Settlor of Rentcharge de Novo to
Trustee and his Heirs in Trust for Persons in
Tail — Ultimate Remainder to Use of Settlor
to Attend Inheritance — Effect of Barring
Entail.] — A, the tenant in fee-simple of cer-
tain lands, granted a rentcharge issuable out
of the lands to a trustee and his heirs upon
trust for successive tenants in tail, with
ultimate remainder to the use of A, his heirs
and assigns, to attend upon the inheritance or
be disposed of as A, his heirs and assigns,
should think proper : — Held, that an equitable
tenant in tail in possession could, by a valid
disentailing assurance, bar the subsequent
limitations, and thereby acquire for himself an
absolute equitable estate in fee-simple in a
perpetual rentcharge. Chaplin v. Chaplin
(3 P. Wms. 229) and Drew v. Barry (Ir. E.
8 Eq. 260) considered. Franks's Estate, In re,
[1915] 1 Ir. E. 387— C. A.
Two tenants in tail of equitable rentcharges,
which had been granted to them de novo
without remainders over, executed a dis-
entailing deed : — Held, that the disentailing
deed created merely a base fee in each rent-
charge determinable on failure of the issue in
tail. Chaplin v. Chaplin (3 P. Wms. 229)
applied. Franks's Estate. In re (supra), dis-
tinguished. Pinkerton v. Pratt, [1915] 1 Ir. E.
406— Barton, J.
Joint Tenancy — Severance.] —Senible, the
demise by three joint tenants to one of them-
selves severs the joint tenancy during the
term, and the lessee is entitled to two-thirds
of the land by virtue of the lease, remaining
seised of his original one-third for his original
estate in fee. Napier v. Williams. 80 L. J.
Ch. 298; [1911] 1 Ch. 361; 104 L. T. 380;
55 S. J. 235— Warrington, J.
Implication of Equitable Assignment of a
Share of an Estate.] — If A e.xecutes an
equitable aHsigniiiciit of his reversionary
interest under the will of B, and such rever-
sionary interest is an interest as joint tenant
with others expectant on the death of the then
tenant for life, such assignment will operate
by implication to create a severance of the
joint tenancy, for it could not have been the
intention of the parties thereto that the
security should be void if A should predecease
any of the joint tenants in reversion.
Sharer, In re; Abbott v. Sharer, 57 S. J. 60
— Neville, J.
ESTATE DUTY.
See EEVENUE.
ESTOPPEL.
A. By Eecord, 554.
B. By Deed, 556.
C. By Matters in Pais, 558.
A. BY EECOED.
See also Vol. VI. 377, 1967.
Action to RecoYcr Money Lent — Writ
Issued before Two Instalments Due — Objec-
tion not taken on Application for Judgment
under Order XI Y.] — The plamtiffs sued the
defendant to recover the amount of three
promissory notes signed by him, amounting
in all to 960L By mistake, the writ was
issued before the second and third notes
were due. A summons for judgment under
Order XIV. was taken out, on the hearing of
which the defendant was represented by a
solicitor who did not raise the defect in the
writ in the defence. The Master gave judg-
ment for the plaintiffs for 600L and gave leave
to defend as to the balance. At the trial of
the action, — Held, that as the defendant had
not set up the premature issue of the writ as
a defence on the hearing of the summons
under Order XIV. the judgment then obtained
cured the defect in the writ. Stirling v.
North, 29 T. L. E. 216— Bucknill, J.
Res Judicata — Action for Arrears of Rent
under Agreement — Action for Further Arrears
— Consideration.] — The rule in Howlett v.
Tarte (31 L. J. C.P. 146; 10 C. B. (n.s.) 813)
— namely, that if the defendant to a second
action attempts to put on record a plea incon-
sistent with any traversable allegation in the
declaration in the first action he will be
estopped from doing so — does not apply to
a plea in confession and avoidance, or to a
special plea necessitating proof by the defen-
dant. Dictum of Farwell, L.J., in Hum-
phries V. Humphries (79 L. J. K.B. 919, at
p. 920; [1910] 2 K.B. 531, at p. 535), followed.
Cooke V. Hickman. 81 L. J. K.B. 38; [1911]
2 K.B. 1125; 105 L. T. 896; 55 S. J. 668— D.
Per Bankes, J. : Where a necessary traver-
sable allegation is omitted from the statement
of claim in the first action, and the defendant
does not then taken advantage of the omission,
ooo
ESTOPPEL.
556
he cannot in a second action allege that there
was no traversable allegation in the statement
of claim in the first action. lb.
Action for Criminal ConYcrsation —
Judgment that Action not Maintainable — Sub-
sequent Ordinance Restoring Jurisdiction in
Action for Criminal Conversation — New Action
after Ordinance on Same Facts.] — The
respondent in 1907 brought an action in
Hong-Kong against the appellant for criminal
conversation. That action was dismissed on
tbe ground that by the effect of certain
ordinances such actions had been abolished in
Hong-Kong. In 1908 a new ordinance was
promulgated restoring the jurisdiction of the
Hong-Kong Courts in such actions, and that
ordinance had a retro-active effect to the extent
of enabling actions to be brought in respect of
criminal conversation during the period when
the right of action in such cases had ceased to
exist in the colony. After the promulgation
of the new ordinance the respondent com-
menced a fresh action against the appellant
in respect of the same acts of misconduct as
he had alleged in the former action. The
appellant pleaded res judicata : — Held, that
the judgment in the first action brought by
the respondent was a final determination of
the rights of the parties ; that the ordinary
principle that a man was not to be vexed twice
for the same alleged cause of action applied,
unless it was excluded by the Legislature in
unmistakable terms : and that there was
nothing in the new ordinance to indicate that
the Legislature intended not merely to alter
the law. but to alter it so as to deprive the
appellant of the subsisting judgment in his
favour. Lemm v. Mitchell. 81 L. J. P.O.
173; [1912] A.C. 400; 106 L. T. 359;
28 T. L. E. 282— P.C.
Compromise of Divorce Proceedings —
Costs of Wife's Solicitor — Judgment against
Wife for Costs — Subsequent Action against
Husband." — "Where a divorce suit in which
the wife was petition was settled without
notice to her solicitors, who thereupon brought
an action against her in which they recovered
judgment on which nothing was realised, and
they afterwards applied for an order that the
husband should pay them the wife's costs, —
Held, that the judgment obtained against the
wife was a bar to any claim against the
husband. Priestley v. Fernie (3i L. J. Ex.
172: 3 H. & C. 977) followed and applied to
the case of a debt incurred by a wife as agent
for her husband. Sullivan v. Sullivan. [1912]
2 Ir. E. 116— C. A.
Desertion — Dismissal of Summons —
Adjournment — Second Summons for same
Cause of Complaint — Res Judicata."^ — A wife,
whose summons against her husband for
desertion under the Summary Jurisdiction
("Married Women) Act, 1895. has been dis-
missed, cannot obtain an order on a second
summons for the same cause of complaint.
It is immaterial that desertion is a continuing
offence ; its commencement must be referable
to some particular date, and if the evidence
of it is incomplete or unavailable on the
return of a summons complaining of it, the
wife should apply for, and be allowed, an
adjournment for the purpose of completing
her case. When the complaint has been once
disposed of by the Justices, the matter is
res judicata. Stokes v. Stokes, 80 L. J. P.
142 ; [1911] P. 195 ; 105 L. T. 416 ; 75 J. P.
502; 55 S. J. 690; 27 T. L. E. 553— D.
Bequest to Chapel Building Fund — Rever-
sionary Bequest to Same — Immediate Bequest
Held Invalid in 1876 under then Existing
Statute of Mortmain — Claim to Reversionary
Bequest — Res Judicata.] — A will proved in
1874 gave an immediate legacy of 200L to a
chapel building fund, and also a reversionary
bequest, payable after the death or re-marriage
of the testator's widow. The executors
believed that these legacies transgressed the
then operative Statutes of Mortmain, and an
order was made in chambers, dated May 8,
1876, directing that the 200Z. should fall into
the residue. The testator's widow died in
1909 : — Held, that the representatives of the
building fund were entitled to the reversionary
bequest, inasmuch as the fund had other
objects than those involving the purchase of
land, to which the money might be applied.
Held, further, that the order of 1876 did not
constitute an estoppel by res judicata, as such
order had been in respect of another bequest,
and had been based on a belief which was
erroneous. Surfleet's Estate, In re; Rawlings
V. Synith, 105 L. T. 582; 56 S. J. 15—
Parker, J.
B. BY DEED.
See also Vol. VI. 423, 1974.
Implied Right of Way — Deed — Alteration of
Date — Parcels — Plan." — A lessor granted a
lease of certain plots of land on which had
been erected certain then nearly finished
houses. The grant was defined by reference
to a plan in the margin, which shewed a
narrow strip of ground, coloured brown, at the
rear of the plots, and running along other
land that belonged to the lessor, but was not
included in the lease. The lease contained no
express grant of any right of way along this
strip, nor indeed further reference to it; but
the evidence shewed that the use of the strip
was essential to the tenants of the new houses
for the convenient ingress of coal and manure,
and for the egress of garden rubbish. At the
time of the original granting of the lease the
dates of the day and month were left in blank,
but subsequently there was an alteration of
the year (with the consent of all parties), and
the blanks were also filled in. At the date of
the original granting of the lease the plots
were not yet fenced on the side towards the
strip ; but at the time of the alteration they
were so fenced, and the position was indicated
for gates communicating between the plots
and the strip : — Held, that the alteration of
the lease did not avoid it, and that the lessor
was estopped from shewing that the date in-
serted by himself was not the date from which
the demise operated, so as to prevent any one
I
557
ESTOPPEL.
558
claiming under the lease from relying upon
the circumstances existing at the date that the
lease finally bore. Held, further, that under
those circumstances, an implied right of way
over the strip in question had passed under
the lease from the lessor to the lessee. Rudd
V. Boicles, 81 L. J. Ch. 277; [1912] 2 Ch.
60; 105 L. T. 864— Neville, J.
By Recital — Applicability of Doctrine to
Easement.]— On May 7, 1897, W. sold a plot
of land, on which was situated a cottage, to
his wife, and by the deed effecting the sale
granted to her, her heirs and assigns, a right
of way over an adjoining plot of land belonging
to him. By a deed dated May 8, 1897,
Mrs. W. mortgaged the cottage, and on
May 25, 1907, whilst the mortgage was still
in force, W. sold the adjoining plot of land to
the plaintiff, and with a view to extinguishing
the right of way Mrs. W. joined in the deed
of conveyance. The deed contained a recital
to the effect that under and by virtue of the
deed of conveyance to her of May 7, 1897, she
was entitled to the right of way for herself,
her heirs and assigns, and that it had been
agreed for her to join in the deed of conveyance
to the plaintiff for the purpose of releasing the
hereditament thereby conveyed from such
right of way. The mortgagees were not
parties to the deed, and the mortgage was not
recited or referred to in it. Mrs. W. died on
December 10, 1907, and W. died on Novem-
ber 18, 1909, the second defendant R. being
the executor of both. After the death of W.
and his wife the mortgagees were paid off,
and the mortgage premises reconveyed to B.
by a deed of March 14. 1910. By a further
deed of March 25, 1910, R. conveyed the
cottage to the defendants Mr. and Mrs. M.,
and by the same deed granted to them the
same right of way over the plaintiff's land
which had been released by Mrs. W., the
release not being mentioned in the deed, and
none of the defendants having notice of it.
The defendants Mr. and Mrs. M. claimed
to have and use the right of way : —
Held, that they had no such right; that
the doctrine of estoppel by recital applied to
the case of an easement, and that the words
of the recital in the deed of May 25, 1907,
was eufficiently precise and particular to
estop Mrs. W. and her successors in title from
asserting that the right of way was not
extinguished, and that the plaintiff was accord-
ingly entitled to maintain an action of trespass.
Poulton V. Moore, 84 L. J. K.B. 462; [1915]
1 K.B. 400; 112 L. T. 202; 31 T. L. R. 43
— C.A.
Deviation from Statutory Form — Joinder
of Wife of Grantor.! — A husband and wife
were parties to a bill of sale and joined
in executing it, but the wife did not purport
to grant the chattels, the subject of the bill
of sale, the husband alone actually assigning
those chattels. The bill of sale also contained
recitals stating how the liability, in respect of
which the security was given, arose : — Held,
that the bill of sale was valid, as the joining
of the wife was mere surplusage, and did not
give the bill of sale a legal consequence other
than that which would attach to it if drawn
in the form required by the Bills of Sale Act
(1878) Amendment Act, 1882, s. 9, and
schedule, and that it would not prevent a
borrower understanding the nature of the
security, nor a creditor, searching the register,
understanding the position of the borrower ;
and further, tliat the recitals could not operate
against the wife by way of estoppel, as she
had not entered into any contract. Brandon
Hill, Lim. v. Lane, 84 L. J. K.B. 347; [1915]
1 K.B. 250; 112 L. T. 346; 59 S. J. 75— D.
C. BY MATTERS IN PAIS.
See also Vol. VI. 444, 1978.
Owner by Estoppel.] — The secretary of a
club put a caretaker into possession of a
cottage on grounds belonging to the club, the
legal estate in which was vested in trustees
for the club : — Held, that the secretary was
owner by estoppel and was also the known
agent of the actual owners, and as such was
entitled to take summary proceedings for
recovery of the premises after reasonable notice
to the caretaker to give up possession. Rex
V. Swifte, [1913] 2 Ir. R. 113— C.A.
Invalid Exercise of Power to Appoint by
Will — Entry of Tenant for Life under the
Will — Acquisition of Statutory Title — Position
of Remainderman.] — Where a person enters
as tenant for life under a will, which purports
to be an exercise of a power to appoint lands,
whether rightfully as a proper appointee or
wrongfully under a void appointment, he is
not estopped from saying as against the
remainderman that the devise over to him is
void as being an invalid exercise of the power.
Paine v. Jones (43 L. J. Ch. 787; L. R. 18
Eq. 320), Stringer's Estate, In re (46 L. J.
Ch. 633; 6 Ch. D. 1), and Anderson, In re
(74 L. J. Ch. 433; [1905] 2 Ch. 70), considered
and applied. Board v. Board (43 L. J.
Q.B. 4 ; L. R. 9 Q.B. 48) and Dalton v. Fitz-
gerald (66 L. J. Ch. 604: [1897] 2 Ch. 86)
distinguished. Tennent's Estate, In re, [1913]
1 Ir. R. 280— Wylie, J.
Misrepresentation as to Character of Docu-
ment— Signature to Document Obtained by
Misrepresentation — Document Amounting to
Guarantee — Defence to Action on Guarantee.]
— One R., a customer of the plaintiffs, who
were bankers, having overdrawn his account,
was pressed by them to give a guarantee for a
larger simi than was secured by a guarantee
which they then held. R. thereupon went to
the defendant, and, having produced a paper,
induced him to sign it upon the misrepresen-
tation that it was an insurance paper, whereas
it was a guarantee of R.'s account at the bank
up to a certain amount. R. had so folded the
paper that only the space for the defendant's
signature was visible. Subsequently R.,
having fraudulently affixed the name of a
certain person as attesting witness, gave the
paper to the plaintiffs, who thereupon allowed
559
E STOPPEL— EVIDENCE .
560
K. to increase his overdraft. In an action
against the defendant as guarantor the jury
found that the defendant was induced to sign
the guarantee by R.'s fraud; that he did not
know that the document he signed was a
guarantee ; and that he was negligent in
signing the document : — Held, that in the
circumstances the finding of negligence on the
part of the defendant in signing the document
was immaterial, and that the defendant, not
being prevented by that finding from setting
up the defence that the signature on the docu-
ment sued on by the plaintiffs was not his
signature by reason of its having been obtained
by the misrepresentation of R, was entitled to
judgment. Foster v. Mackinnon (38 L. J.
C.P. 310; L. E. 4 C.P. 704) considered.
Carlisle and Cumberland Banking Co. v.
Bragg, 80 L. J. K.B. 472 ; [1911] 1 K.B. 489 ;
104 L. T. 121— C. A.
Pledge of Certificates — Blank Transfer.] —
The plaintiff employed a firm of stockbrokers
to buy for him shares in a Colonial railway,
and the brokers did so. The shares were
registered in the name of one H., the certifi-
cates were in his name, and the transfers on
the back had been signed by him in blank.
On the brokers' suggestion the plaintiff left
the certificates with them and subsequently
consented to the shares being put into other
names. The brokers deposited the shares with
the defendant bank as security for loans, and
at the broker's request the shares were put in
the names of the bank's nominees. The
defendant bank took the shares in good faith.
In an action by the plaintiff against the defen-
dant bank to recover the share certificates, —
Held, that the bank was not put upon enquiry
by the mere fact of the brokers depositing the
shares as security for their own account, that
the transfer from H.'s name was not an
intimation to the bank that the shares did not
belong to the brokers and did not put the bank
upon enquiry, that the principle of Colonial
Batik V. Cad\j (60 L. J. Ch. 131 ; 15 App. Cas.
267), that any one who signs a transfer on a
certificate in blank and hands it to anoth.^r
person knows that third persons would think
that that person had authority to deal with it,
extends to a person who without having had
such a certificate in his possession leaves it in
the hands of his broker, and that therefore
the plaintiff was estopped from recovering the
certificates from the defendants. Fuller v.
Crlyn. Mills, Currie <f- Co., 83 L. J. K.B. 764;
[1914] 2 K.B. 168; 110 L. T. 318;
19 Com. Cas. 186; 58 S. J. 235; 30 T. L. R.
162-Pickford, J.
ESTOVERS.
See COMMON.
EVIDENCE.
I. Admissions and Declarations, 560.
II. Presumptions, 561.
III. Documentary Evidence.
a. Public, Official, and Other Docu-
ments, 561.
b. Parol Evidence as to Documents,
563.
IV. Production and Admission of Evidence,
563.
V. Attendance and Examination of Wit-
nesses, 564.
VI. Evidence on Affidavit, 565.
VII. In Criminal Cases. See Criminal Law.
I. ADMISSIONS AND DECLARATIONS.
See also Vol. VI. 521, 1988.
Statements by Deceased against Interest.]
— In a probate suit it was alleged that the
testatrix destroyed her will at a time when
she was not of sound mind, memory, or under-
standing. Under the will which had been
destroyed her husband took a life interest in
her estate, whereas under an ante-nuptial
settlement he was, in the events that had
happened, entitled absolutely to her estate : —
Held, that a statement by the husband, who
had died before the suit was brought, that
he did not think the testatrix was of sound
mind when she destroyed her will, was admis-
sible in evidence as being in disparagement
of his own title by limiting it to a life estate.
Fawke v. Miles, 27 T. L. R. 202— Evans, P.
Statements by Deceased as to Paternity of
Posthumous Illegitimate Child.] — In proceed-
ings taken under the Workmen's Compensa-
tion Act, 1906, on behalf of the posthumous
illegitimate child of a workman who was killed
by an accident, statements made by the
deceased man to the effect that he admitted
that he was the father of the child, and would
marry the mother before its birth, and would
provide a home for her, are admissible in
evidence on the issues of paternity and depen-
dence. Lloyd V. Poivell Duffryn Steam Coal
Co., 83 L. J. K.B. 1054: [1914] A.C. 733;
[1914] W.C. & I. Rep. 450; 111 L. T. 338;
58 S. J. 514; 30 T. L. R. 456— H.L. (E.)
Judgment of the Court of Appeal (82 L. J.
K.B. 533; [1913] 2 K.B. 130; [1913] W.C.
& I. Rep. 355) reversed. lb.
Report by Agent — Death of Agent — Admissi-
bility of Report — Shares — Action for Rescission
on Ground of Misrepresentation in Prospectus.]
— In an action for rescission of a contract to
take shares in a company on the ground of
misrepresentations contained in the prospec-
tus, the plaintiff tendered as evidence of the
misrepresentations a confidential report as to
the property in question made to the company
by an agent since deceased. The report had
not been drawn up for more than a month
after the inspection of the property by the
agent had taken place : — Held, that the
report, not having been made contemporane-
ously with the inspection by the agent, was
not admissible in evidence. Djambi (Sumatra)
561
EVIDENCE.
562
Rubber Estates, In re, 107 L. T. 631; 57 S. J.
43; 29 T. L. E. 28— C. A.
Duty of Historian.] — When a matter of
history which is not of general importance is
in issue, a statement bearing on the point in
issue made by a particular person (since
deceased) under no duty to make it is not
admissible unless the statement purported to
be made from reputation. As to whether or
not a church is a parish church is not a matter
of general importance. Fowke v. Berrington
(No. 1), 83 L. J. Ch. 820; [1914] 2 Ch. 308;
111 L. T. 440; 58 S. J. 379— Astbury, J.
II. PRESUMPTIONS.
^ee also Vol. VI. 566, 1990.
Against Cliild-bearing.] — A fund in Court,
a moiety of which in the event of a spinster
lady then aged fift\"-one years having children
attaining twenty-one years would belong to
them, but which otherwise belonged to the
petitioners, of whom she was one, was ordered
to be paid out to the petitioners upon a policy
at a single premium being taken out in an
approved office for the value of the moiety
payable in the event of the spinster lady
having a child. Carr v. Carr, 106 L. T. 753
— Warrington, J.
III. DOCUMENTARY EVIDENCE.
See also Vol. VI. 606, 1992.
a. Public, Official and other Documents.
Regulations for Territorial Force.] — The
Regulations for the Territorial Force and for
County Associations fall within section 163
of the Army Act, 1881 (as amended by the
Army Annual Acts to 1911), and may accord-
ingly be proved by production of a copy pur-
porting to be printed by a Government printer,
without other evidence ; but the Court does not
take judicial notice of the Regulations. Todd
V. Anderson, [1912] S. C. (J.) 105— Ct. of
Just.
Post Office — Telegrams — Times of Delivery
— Written Records — Admissibility.] — The
documents kept by the Post Office shewing
the times of the receipt and delivery of tele-
grams are not admissible in evidence as public
records, inasmuch as they are kept only a
short time, are not accessible to the public,
are not the result of a public enquiry, and do
not deal with a general public right, but are
merely kept for the purpose of regulating the
pay and the work of Post Office servants.
Heyne v. Fischel rf- Co., 110 L. T. 264;
30 T. L. R. 190— Pickford, J.
Tithe Map.] — A tithe map certified by the
Tithe Commissioners as a first-class map is
not admissible as evidence of the extent of a
public right, though it may be evidence that
at the date the map was made certain land
was not inclosed or was not titheable.
Copestake v. West Sussex County Council,
80 L. J. Ch. 673; [1911] 2 Ch. 331 ; 105 L. T.
298: 75 J. P. 465 : 9 L. G. R. 905— Parker. J.
Ancient Maps — Public Highways — Reputa-
tion.]— Ancient maps produced from the
custody of the British Museum and Guildhall
Library, there being no evidence that the map
makers were competent or had any special
duty to perform in making the maps or that
the maps had been received and acted on by
the public, are not admissible as evidence of
reputation of public highways. Att.-Gen. v.
Horner {No. 2), 82 L. J. Ch. 339; [1913]
2 Ch. 140; 108 L. T. 609; 77 J. P. 257;
11 L. G. R. 784; 57 S. J. 498; 29 T. L. R.
451— C. A.
Per Hamilton, L.J. : Trafford v. St. Faith's
Rural Council (74 J. P. 297) doubted. State-
ment of Lord Alverstone, C.J., in Vyner v.
Wirrall Rural Council (7 L. G. R. 628;
73 J. P. 242) that the competence of the map
maker goes more to the weight of the evidence
than to its admissibility disapproved of.
Statement of Cave, J., in Reg. v. Berger
(63 L. J. Q.B. 529; [1894] 1 Q.B. 823), that
a map if made by one of the public cannot
be excluded on a question of highway, con-
sidered too wide. lb.
Ordnance Survey Map.] — An Ordnance
survey map of 1841 held admissible to shew
what physical features the persons employed
to make the survey did or did not see at the
time of the survey. Att.-Gen. v. Meyrick,
79 J. P. 515— Scrutton, J.
Certificate of Conviction.] — Where a con-
victed felon, or the personal representative of
a convicted murderer who has been executed,
brings any civil proceedings to establish claims
or to enforce rights which result to the felon
or to the convicted testator from his own
crime, the conviction is admissible in evi-
dence, not merely as proof of the conviction,
but also as presumptive proof of the commis-
sion of the crime. Crippen, In the goods of,
80 L. J. P. 47; [1911] P. 108; 104 L. T.
224; 55 S. J. 273; 27 T. L. R. 2-58- Evans, P.
Non-parochial Registers — Society of Friends
— Entries Prior to 1837 — Extracts from Digest
— Copies.] — The Non-parochial Registers
Act, 1840, provides (section 6) that all registers
deposited in the General Register Office by
virtue of that Act shall be deemed to be in
legal custody, and (section 9) that certified
copies thereof under the seal of the office shall
be receivable in evidence. In 1840 the
registers of the Society of Friends, prior to
18.37, were duly deposited in accordance with
that Act, but a digest of all births, deaths,
and marriages recorded therein was retained
at the central office of the society : — Held,
that the registers were only admissible in evi-
dence by virtue of the above Act and in the
manner there provided : and that extracts
from the digest relating to births, deaths, and
marriages before 1837, certified by the record-
ing clerk of the society, were inadmissible.
Woodward. In re: Kenway v. Kidd, 82 L. J.
Ch. 230; [1913] 1 Ch. 392; 108 L. T. 635;
57 S. J. 426— Swinfen Eady, J.
Bankers' Books — Copy made by Person not
an Official of Bank — "Some person."] — The
words " some person " in section 5 of the
563
EVIDENCE.
564
Bankers' Books Evidence Act, 1879, are not
limited to a partner or officer of a bank ; they
include any person who has examined the copy
of the books which it is proposed to give in
evidence with the books themselves. Rex v.
Albutt, 15 J. P. 112— CCA.
Application for Inspection in Case of
Criminal Libel."] — In proceedings for criminal
libel, in which they proposed to put in a plea
of justification, the defendants applied for an
order under the Bankers' Books Evidence
Act, 1879, to inspect the banking account of
the person they were alleged to have
libelled : — Held, that an order would not be
made in those circumstances. Rex v. Bono,
29 T. L. K. 635— D.
b. Parol Evidence as to Documents.
To Vary the Effect of a Deed of Sale.] —
Under section 92 of the Indian Evidence Act
extrinsic evidence is admissible to shew that
a deed which was in form a deed of sale with
a receipt for the consideration was in reality
intended to operate as a deed of gift. Hanif-
un-nisa v. Faiz-un-nisa, L. E. 38 Ind. App.
85— P. C
Promissory Note GiYen by Makers in Pay-
ment for Goods — Note Signed by Indorser as
Surety — Admissibility of Oral Agreement that
Surety was not to be Liable if Goods not up
to Sample — Liability of Surety.] — The
defendant company bought certain leather
goods from the plaintiffs and gave the plain-
tiffs in payment therefor a promissory note of
which they were the makers, and which the
defendant D. at the request of the plaintiffs
indorsed as surety. The plaintiffs delivered
the goods to the defendant company, who
kept them. The plaintiffs subsequently sued
the defendant company as the makers, and
the defendant D. as the indorser of the pro-
missory note. The defendant company did
not appear at the trial, but the defendant D.
pleaded that he signed the note as surety, and
proved an oral agreement with the plaintiffs,
contemporaneous with the promissory note,
that if the goods when received by the defen-
dant company should not be equal to sample,
he was not to be called upon to pay the pro-
missory note. He also proved that the goods
were in fact not equal to sample : — Held,
that evidence of the oral agreement relied upon
by D. was not admissible, as it was not an
agreement suspending the coming into force
of the contract contained in the promissory
note, but was an agreement in defeasance of
that contract, and that therefore the defendant
D. was liable on the promissory note.
Hitchinqa and Coulthurst Co. t. Northern
Leaflier Co. of America, 83 L. J. K.B. 1819;
ri914] 3 K.B: 907: 111 L. T. 1078: 20 Com.
Cas. "25: .30 T. L. R. 688— Bailhache. J.
Cp. Motabhoy MuUa Essahhoy v. Mulji
Haridas, L. R. 42 Ind. App. 103— P.C.
IV. PRODUCTION AND ADMISSION
OF EVIDENCE.
See alxn Vol VT. 797, 1998.
Documents — Production of Partnership Deed
by One of Several Partners.] — Each of several
members of a firm signed a copy of the part-
nership deed and each partner retained a copy
of the deed. In an action for penalties against
one of the partners, — Held, that a partner of
the defendant was compellable to produce his
copy of the partnership deed upon a subpoena
duces tecum. Forbes v. Samuel, 82 L. J.
K.B. 1135; [1913] 3 K.B. 706; 109 L. T.
599; 29 T. L. R. 544— Scrutton, J.
Bundle of Copy Correspondence — Taken as
Put in — Agreement by Parties — Indorsement
on Bundle.] — \Yhere at the trial parties agree
that a bundle of copy correspondence shall be
taken as put in, saving all just exceptions,
it is desirable that the agreement should be
indorsed on the bundle and signed by the
parties or their solicitors. The Registrar
ought not to be called upon to say whether
the whole of the bundle is put in. Perry v.
Hessin, 56 S. J. 345— Eve, J.
Res inter Alios Acta — Frauds in other Case
as Evidence of Systematic Course of Dealing.]
— An action was brought by a life insurance
company claiming to have a policy set aside
on the ground of fraud. There was no aver-
ment in the statement of claim that the
alleged fraud was part of a fraudulent system,
nor any allegation that the defendant had
been a party to any similar acts of fraud. At
the trial it was proposed, without previous
notice to the defendant, to adduce evidence
connected with the effecting of other policies
by the defendant luider similar fraudulent
circumstances as evidence of a system of
fraud : — Held, that the evidence of the similar
frauds would be admissible if the substance
of the allegation that the fraud was part of a
system were stated in the statement of claim.
Edinburgh Life Assurance Co. v. Y.. [1911]
1 Ir. R. 306— Barton, J.
Unstamped Document.] — A document which
the Stamp Act, 1891, requires to be stamped
cannot, except in criminal proceedings, be
received in evidence for any purpose whatever,
if unstamped, whether for the purpose of
enforcing it, or for any collateral purpose.
Fengl v. Fengl, 84 L. J. P. 29; [1914] P.
274: 112 L. T. 173: 59 S. J. 42; 31 T. L. R.
45— D.
V. ATTENDANCE AND EXAMINATION
OF WITNESSES.
See also Vol. VI. 854, 902. 2001.
Examination at Request of Foreign Court —
Production of Documents — Documents in Pos-
session of Servant — No Instructions from
Master as to Production — Right of Servant to
Refuse to Produce — Attachment.] — Pursuant
to letters rogatory addressed to it by a foreign
Court in an action pending in that Court, the
English Court made an order under the
Foreign Tribunals Evidence Act, 1856, requir-
ing a witness who was resident within the
jurisdiction of the latter Court to attend before
an examiner to be examined and to produce
certain documents alleged to be relevant. The
witness was a salaried managing clerk in the
employment of an English firm, and the docu-
565
EVIDENCE— EXECUTION.
566
ments were the property of the firm, and were
only in the possession, custody, or control of
the witness as such managing clerk. The
witness had never received from the firm any
instructions either to produce the documents
or not to produce them. At a previous exam-
ination held by agreement between the parties
the witness had voluntarily produced some of
the documents and promised to produce others,
and had answered some questions regarding
them; but at the examination held pursuant
to the order of the Court he refused to produce
the documents or to answer any questions
regarding them. The plaintiffs in the action
obtained an order for the issue of a writ of
attachment against the witness for his refusal
to comply with the order for examination and
production : — Held (Kennedy, L.J., dissent-
ing), that the witness, in the absence of in-
structions from his employers in that behalf,
could not without violating his duty towards
his employers, produce the documents and
answer the questions, and was therefore
entitled to refuse to do so, and consequently
that the order for his attachment should be
set aside. Eccle.i v. Louisville and Nashville
Railroad Co., 81 L. J. K.B. 445; [1912]
1 K.B. 135; 105 L. T. 928; 56 S. J. 107;
28 T. L. E. G7— C.A.
Privilege of Witness — Preliminary Examina-
tion by Solicitor.] — The preliminary examina-
tion of a witness by a solicitor is within the
same privilege as that which the witness would
have if he had said the same thing in his
sworn testimony in Court. Beresford v.
White, 68 S. J. 607; 30 T. L. E. 591— C.A.
Public Policy — Affairs of State — State-
ments to Lord Chamberlain.] — The Lord
Chamberlain cannot be compelled to disclose
in evidence communications made to him in
his official capacity. West v. West,
27 T. L. E. 476— C.A.
VI. EVIDENCE ON AFFIDAVIT.
See also Vol. VI. 1050, 2004.
Affidavit Sworn before Solicitor of any of the
Parties to the Proceeding — Deed of Arrange-
ment— Validity of Registration.] — A commis-
sioner for oaths who is acting as solicitor for
any of the parties on the registration of a deed
of arrangement under the Deeds of Arrange-
ment Act, 1887, is disabled by the Commis-
sioners for Oaths Act, 1889, s. 1, sub-s. 3,
from administering an oath to the debtor and
from taking the debtor's affidavit mentioned
in section 6 of the Deeds of Arrangement Act,
1887 ; and inasmuch as the filing of such
affidavit is an essential constituent of a valid
registration, the fact that the affidavit was
sworn before a commissioner acting as solicitor
for any of the parties is not an irregularity
which is cured by registration, but on the con-
trary renders the registration bad and the
deed void. Baker v. /l?n/)ro.se (65 L. J. Q.B.
589; [1896] 2 Q.B. 372) approved. Bagley,
In re, 80 L. J. K.B. 168; [1911] 1 K.B. 317:
103 L. T. 470; 18 Manson, 1; 55 S. J. 48
—C.A.
EXCISE.
See EEVENUE.
EXECUTION.
A. Extent, 566.
B. FiEKi Facias, 566.
C. Elegit, 567.
D. Sequestration', 567.
E. Equitable Execution, 588.
A. EXTENT.
See also Vol. VI. 2007.
Seizure under Writ — Writ Set Aside —
Liability of Treasury Solicitor in Trespass.] —
The plaintiff's goods were seized under a writ
of extent, which was subsequently set aside
on the ground that the affidavit upon which
the fiat of the Judge was obtained for the
issue of the writ was defective in not alleging
that the plaintiff was insolvent. In an action
against the defendants — the Treasury Solicitor
and his assistants — for the trespass to the
plaintiff's goods by their seizure under the
writ, — Held, that as there was a judicial
determination interposed between the filing of
the affidavit upon which the writ was obtained
and the issue of the writ, and as such issue
was in consequence of that interposition,
the defendants were protected from liability.
Pridgeon v. Mellor, 28 T. . L. E. 261—
Pickford, J.
B. FIEEI FACIAS.
See also Vol. VI. 1132, 2007.
Chattels — Equitable Interest — Vesting of
Whole Interest— Rights of Creditor.]— Though
as a general rule a judgment creditor may not
be entitled under a writ of fi. fa. to seize
goods which are only at the equitable disposi-
tion of the judgment debtor, yet where the
whole of the beneficial interest in the chattels
is vested in the judgment debtor, the trust ia
no defence to an execution at the instance
of the judgment creditor. Stevens v. Hince,
110 L. T. 935; 58 S. J. 434; 30 T. L. E. 419
— Bailhache, J.
Sheriff's Fees — Execution Withdrawn under
Order of Court — Liability of Execution
Creditor.] — By the Order as to Fees made
under section 20, sub-section 2 of the Sheriffs
Act, 1887, where an execution is withdrawn,
satisfied, or stopped, the fees under the Order
are to be paid " by the person issuing the
execution, or the person at whose instance the
sale is stopped, as the case may be. ..."
The defendants, having obtained a judgment
against a certain company, issued a writ of
fi. fa., under which the sheriff seized the
goods of the company. On the day on which
the sheriff went into possession a resolution
567
EXECUTION— EXECUTOE AND ADMINISTRATOR.
568
to wind up the company voluntarily had been
passed, and a summons was afterwards issued
by the liquidator asking that the defendants
should be restrained from selling the goods.
An order was made in accordance with the
summons, and the sheriff was subsequently
ordered to withdraw. He thereupon brought
an action in the County Court to recover from
the defendants the amount of his fees, but the
County Court Judge gave judgment for part
only of the fees claimed : — Held, that, under
the law as existing at the time when the
Order as to fees was made, the execution
creditors would, under the circumstances,
have been liable to pay the sheriff's fees ;
that the Order did not affect such liability ;
and that the sheriff was therefore entitled to
judgment for the full amount of his claim.
Montague v. Davies, Benachi if Co., 80 L. J.
K.B. 1131; [1911] 2 K.B. 595; 104 L. T.
645— D.
C. ELEGIT.
.See also Vol. VI. 1159, 2014.
Judgment Creditor — Land in Mortgage —
Registration of Writ or Order Affecting the
Land — Arrangement between Debtor and
Tenant — Subsequent Appointment of Receiver.]
—Under the Judgments Act, 1838, s. 13, and
the Land Charges Act, 190U, s. 2, a judgment
creditor obtains a charge on the land of the
judgment debtor upon the registration of a
writ of elegit under section 5 of the Land
Charges Registration and Searches Act, 1888,
even though the judgment debtor's interest in
the land is not of a nature which is capable
of being extended under a writ of elegit : —
So held by Lord Cozens-Hardy, M.R., and
Swinfen Eady, L.J. (Kennedy, L.J., dissent-
ing). Ashburton (Lord) v. Nocton, 84 L. J.
Ch. 193; [1915] 1 Ch. 274; 111 L. T. 895;
59 S. J. 145; 31 T. L. R. 122— C.A.
After the registration by a judgment creditor
of writs of elegit, but before the appointment
of a receiver, the judgment debtor, whose land
was subject to a legal mortgage, entered into
an arrangement with a tenant by which the
tenant paid him rent in advance. The judg-
ment creditor obtained the appointment of a
receiver before the rent became due. The
tenant made the arrangement bona fide and
without notice of the judgment creditor's
claim : — Held (Kennedy, L.J., dissenting),
that the arrangement was not binding on the
judgment creditor, and that he was entitled
to payment of the rent bv the tenant. lb.
Decision of Sargant, J.' (83 L. J. Ch. 831;
[1914] 2 Ch. 211). reversed. 76.
D. SEQUESTRATION.
See aho Vol. VI. 1169, 2014.
Liability of Sequestrators for Costs.] — A
writ of sequestration issued tn enforce an order
of Court, the defendants being the sequestra-
tors. Under the writ they claimed certain
property which had been purchased by the
plaintiff, they alleging fraud and mala fides
in the plaintiff. On the trial of an issue the
jury found in favour of the plaintiff : — Held,
that although the defendants, as sequestrators,
had acted under the direction of the Court,
that did not justify them in taking action as
to property to which they had no right, and
therefore that thev were liable for the costs
of the action. Wtebalck v. Told, 29 T. L. R.
741— Bucknill, J.
E. EQUITABLE EXECUTION.
See aho Vol. VI. 1199, 2017.
Rent of House and Furniture — Apportion-
ment— Lump Sum Payable to Debtor's
Mortgagee — Creditor Entitled to have Rent
of Furniture Apportioned.] — A mortgagor and
mortgagee of houses joined in making a lease
of the houses and of furniture in them which
belonged to the mortgagor at an inclusive
rent payable to the mortgagor until the mort-
gagee should give notice to the contrary. The
mortgagee entered into receipts of the rents,
and a judgment creditor of the mortgagor
obtained the appointment of a receiver of the
interest of the mortgagor in the rent reserved
by the lease. The mortgagor was under
covenant not to remove the furniture from the
houses without the mortgagee's consent : —
Held, that the creditor was entitled to have
the rent apportioned as between the houses
and the furniture, so that the receiver could
recover the amount apportioned to the
furniture, and that it must be referred to a
Master to make the apportionment. Hoare v.
Hove Buvgalows, .56 S. J. 686— C.A.
Sheriff Unable to Identify Property.]— The
Court has no jurisdiction to appoint a receiver
by way of so-called equitable execution in aid
of a judgment at law, except in cases where,
by reason of the nature of the property, execu-
tion cannot be levied in the ordinary way,
and in which the Court of Chancery would,
before the Judicature Act, 1873, have had
jurisdiction to make the order. Harris v.
Beauchamp (63 L. Q.B. 480; [1894] 1 Q.B.
801) followed. Morgan v. Hart, 83 L. J. K.B.
782; [1914] 2 K.B. 183; 110 L. T. 611;
30 T. L. R. 286— C.A.
EXECUTOR AND
ADMINISTRATOR.
I. Title of Executor or Administrator, 569.
II. Rights, Powers, and Duties.
a. Allowances and Indemnity, 570.
b. Right of Retainer, 571.
c. Respecting Creditors, 574.
d. Respecting Legacies, 575.
e. Power to Pledge Assets, 575.
/. Powers as to Realty, 576.
III. Liabilities, 576.
IV. Administration.
o. Debts, Liabilities, and Priorities, 578.
b. Practice. 580.
V. DiSTRIBfTION, .582.
569
EXECUTOR AND ADMINISTEATOR.
570
I. TITLE OF EXECUTOR OR
ADMINISTRATOR.
See also Vol. VI. 1226, 2022.
Executor de Son Tort — Liability — Repairing
Covenant in Lease — Death of Assignee
Intestate.] — The plaintiffs sued the defendant
as executor de son tort for breaches of covenant
in a lease of which they were the lessors and
the defendant's mother had been assignee.
The defendant's mother died in 1910 intes-
tate. No letters of administration were taken
out. From that date onwards the defendant,
who had collected the rents in his mother's
lifetime, collected them for her sister. The
sister died in 1912. The defendant continued
to collect the rents, and, after paying ground
rent to the plaintiffs, held the balance for
the owners, whoever they might be. In
December, 1912, the plaintiffs first discovered
that the defendant's mother was dead, and,
acting on the defendant's suggestion, they
took possession of the premises. Subse-
quently they brought this action. There were
no assets of the mother's estate : — Held, that
the defendant was not liable by privity of
estate since the term had not vested in him,
and he was not liable by estoppel. Position
of a lawful executor distinguished. Stratford-
upon-Avon Corporation v. Parker, 83 L. J.
K.B. 1309; [1914] 2 K.B. 562; 110 L. T.
1004; 58 S. J. 473— D.
Grant of Letters of Administration — Subse-
quent Discovery of Will — Sale of Property by
Administratrix — Action by Executors to Set
Aside Sale.] — H. died in 1899 without issue,
but leaving a widow. No will being found,
letters of administration were granted to the
widow, who sold part of the estate to the
defendant and conveyed it to him. Of the
proceeds of sale one-third was invested as
dower for the widow, and the remainder was
divided among three co-heiresses of the
deceased. After the widow's death in 1911
her executor discovered the will of her husband
H., and by it H. appointed the plaintiffs his
executors, and left the property which had
been sold to the defendant to the widow for
life, and after her death to one of the plaintiffs,
whom he exhorted to hold the property " as
an heirloom and on no account to sell it, but
should such occur " the proceeds were to be
equally divided among certain named persons.
The letters of administration granted to the
widow were revoked and probate of the will
was granted to the plaintiffs, and they now
sought to set aside the sale of the property
to the defendant : — Held, that the plaintiffs
were not entitled to recover possession of the
estate, as the person for the time being
clothed by the Court of Probate with the
character of legal personal representative
had all the powers of a legal personal
representative until the grant of administra-
tion was revoked or had determined, and as
section 2 of the Tjand Transfer Act, 1897,
conferred upon the legal personal representa-
tive for the time being the same powers (with
certain immaterial exceptions) with reference
to real estate as he would have with refer-
ence to personal estate. Held, further, that
the title of the purchaser was protected under
section 70 of the Conveyancing Act, 1881, even
if the grant of administration could be held
void. Heioson v. Shelley, 83 L. J. Ch. 607 ;
[1914] 2 Ch. 13 ; 110 L. T. 785 ; 58 S. J. 397 ;
30 T. L. R. 402— C.A.
Decision of Astbury, J. (82 L. J. Ch. 551;
[1913] 2 Ch. 384), reversed. 76.
II. RIGHTS, POWERS, AND DUTIES.
See also Vol. VI. 1239, 2024.
a. Allowances and Indemnity.
Executors Carrying on Business of Testator
— Right of Indemnity Subject to Satisfaction
of Liability to Estate — Priority.] — A testator
by his will directed his executors to carry on
his business as long as they should think fit.
At his death there was a considerable balance
of assets over liabilities. The executors, with
the financial assistance of the testator's bank
and the assent of some creditors, carried on
the business for three years, when it had
become insolvent. In an administration action
commenced by the bank against the executors,
— Held, that the executors' right of indemnity,
to which the bank claimed to be subrogated,
was subject to the satisfaction of their own
liability to the estate, and that creditors of
the testator who had not assented were entitled
to be paid out of the available assets in priority
to the bank and other creditors of the execu-
tors. Form of order for accounts and
enquiries in administration discussed. East,
In re; London and County Banking Co. v.
East, 111 L. T. 101; 58 S. J. 513— C.A.
Assets of Testator — Bights of Creditors
of Testator and Subsequent Creditors of
Executors — Right of Executors to Indemnity —
Acquiescence of Original Creditors.] — A
testator who carried on a business died in 1908,
leaving all his property to his widow and
appointing her and a son his executors. He
died solvent. There was no provision in
his will for the carrying on of the business,
but his executors carried it on for four years
after his death, his widow drawing money
from it, and his sons being employed in it.
At his death there were certain creditors of
his estate. These creditors knew that the
business was being carried on by the execu-
tors and did not interfere, but there was no
agreement or arrangement with them. In
1912 the executors became bankrupt, where-
upon the creditors brought an action for
administration of the testator's estate. They
did not claim the business assets so found.
Now creditors of the business since the
testator's death claimed that the executors
were entitled, in priority to the old creditors,
to be indemnified out of the testator's estate
against their business debts, and that they
ought to have the benefit of such indemnity :
— Held, that the old creditors had not assented
to the business being carried on by the execu-
tors, who were not therefore entitled to be
indemnified. Orley. In re; Hornby v. Oxley,
83 Tj. J. Ch. 442: [1914] 1 Ch. 604": 110 L. t.
626; 58 8. J. 319; 30 T. L. R. 827— C.A.
Decision of Kekewich, J., in Brooke, In re;
Brooke v. Brooke (64 L. J. Ch. 21; [1894]
571
EXECUTOR AND ADMINISTEATOE.
572
2 Ch. 600j, that non-interference coupled with
knowledge amounts to assent within Dowse
V. Gorton (60 L. J. Ch. 745; [1891] A.C. 190),
followed in Hodges, In re; Hodges v. Hodges
([1899] 1 Ir. E. 480), overruled. lb.
Account against Executor at Suit of Creditor
— Right to be Allowed Payments made to
Beneficiaries more than Six Years before
Action Brought— Trustee Act, 1888.]— In 1902,
on the death of a testator, his two executors
distributed all his estate except a leasehold
property which they held upon trust for bene-
ficiaries under the testator's will. One of the
executors died in 1906. In 1909 the rack
rents of the leasehold property became insuffi-
cient to keep down the head rents. In 1911
the lessors commenced an action for an
account against the surviving executor and
the executors of the deceased executor : —
Held (Pbillimore, L.J., dissenting), that in
taking the account the executors must be
allowed the sums which had been honestly
paid away to the beneficiaries more than six
years before procedings were commenced, as
they were protected by the Trustee Act, 1888,
8. 1, sub-s. 1 (b), executors being as much
entitled to plead the statute against credi-
tors as against beneficiaries. Blow, In re;
St. Bartholomew's Hospital (Governors) v.
Ca7nbden, 83 L. J. Ch. 185; [1914] 1 Ch.
233; 109 L. T. 913; 58 S. J. 136; 30 T. L. E.
117— C.A.
Dictum of Fletcher Moulton, L.J., in
Lacons v. WarmoU (76 L. J. K.B. 914, 920;
[1907] 2 K.B. 350, 364) approved. How v.
Winterton (Earl) (65 L. J. Ch. 832; [1896]
2 Ch. 626) and Croyden, In re; Hincks v.
Eoberts (55 S. J. 632), followed. lb.
Per Swinfen Eady, L.J. : An action for an
account is "an action to recover money "
within the Trustee Act, 1888, s. 8, sub-s. 1 (b).
lb.
Decision of Warrington, J. (82 L. J. Ch.
207; [1913] 1 Ch. 358), reversed. 7b.
Right of Executor to Commission for Pro-
fessional Services — Art Expert.] — By his will
the testator declared that any executor or
trustee for the time being of his will engaged
in any profession or business should be
entitled to charge and be paid all usual pro-
fessional or other charges for any business
done by him in the premises, whether in the
ordinary course of his profession or business
or not. The testator had a large and valuable
collection of works of art, and in the sale of
this collection the defendant, who was one of
the executors and was a well-known art expert
and keeper of mediaeval antiquities at the
British Museum, priced the various articles
and gave valuable advice as to their sale : —
Held, that the defendant was carrying on a
profession or business within the meaning of
the clause of the will, and was entitled to be
paid a commission of lO.s. per cent, on the
sale prices. Wertheimer. In re; Groves v.
Read. 106 L. T. 590: 28 T. L. E. 337—
Neville, J.
b. Right of Retainer.
Specialty and Simple Contract Creditors.] —
An executor may retain liis simple contract
debt as against both specialty and simple
contract creditors, inasmuch as by Hinde
Palmer's Act both classes of creditors are made
of equal degree as regards priority of payment
in the administration of estates. The ratio
decidendi in Samson, In re (76 L. J. Ch. 21;
[1906] 2 Ch. 584), and in Jennes, In re
(53 S. J. 376), applied in support of the execu-
tor's right of retainer. Wilson v. Coxwell
(52 L. J. Ch. 975; 23 Ch. D. 764) and Jones,
In re; Calver v. Laxton (55 L. J. Ch. 350;
31 Ch. D. 440), not followed. Olpherts v.
Coryton (No. 1), [1913] 1 Ir. E. 211—
Barton, J.
Retaining Simple Contract Debt against
Specialty Creditors.] — It follows from the
decision of the Court of Appeal in Samson,
In re; Bobbins v. Alexander (76 L. J. Ch.
21; [1906] 2 Ch. 584), that the effect of the
Administration of Estates Act, 1869, has been
to enlarge the right of retainer of a legal
personal representative, by enabling him to
retain his simple contract debt against
specialty as well as simple contract creditors.
Olpherts v. Coryton ([1913] 1 Ir. E. 211)
followed. Harris, In re; Davis v. Harris.
83 L. J. Ch. 841: [1914] 2 Ch. 395; 111 L. T.
666; 58 S. J. 653— Sargant, J.
Letters of Administration Granted to
Undischarged Bankrupt — Debt Due from
Deceased to Administrator. — Letters of
administration of the estate of a deceased
person were granted to the defendant, who
was an undischarged bankrupt. The deceased
at the time of his death was indebted to the
defendant for money lent, but the defendant
was adjudicated a bankrupt after the debt was
contracted : — Held, that the defendant was
not entitled as administrator to retain out of
the assets collected by him the amount of the
debt due to him from the deceased, the proper
person to sue for the debt being the trustee in
the bankruptcy. Wilson v. Wilson, 80 L. J.
K.B. 296; [1911] 1 K.B. 327; 104 L. T. 96:
18 Manson, 18— Channell, J.
Covenant in Marriage Settlement — Legal
Personal Representative and Beneficiary —
Trustees' Right of Action.] — A testator by his
marriage settlement covenanted that he would
by deed or will, or his heirs, executors, or
administrators would within twelve months
after his decease, transfer to the trustees
3,000L in trust for his then intended wife for
life, with remainders over for the children of
the marriage. By his will he appointed his
wife sole executrix, and directed that in
accordance with the covenant the 3,000Z.
should be realised and paid to the trustees of
the settlement within six calendar months after
his decease. There was one child only of the
marriage, a daughter. The wife appointed
the daughter to be one of the executors of her
will. Upon the death of the wife, the 3,OO0L
not having been paid, the daughter claimed to
be entitled to retain that sum out of the estate
of her mother, as a debt due from her mother
to herself -.—Held, that the 3.000Z. was not a
simple debt due to the daughter, but was a
debt due to the trustees of the marriage settle-
ment, who were the only persons capable of
573
EXECUTOR AND ADMINISTEATOR.
574
giving a discharge for the money, and that
the daughter had no right of retainer in
respect thereof. Cockroft v. Black (2 P.
Wms. 298) discussed. Sutherland (Dowager
Duchess), In re; Michell v. Bubna (Countess),
84 L. J. Ch. 126; [1914] 2 Ch. 720; 112 L. T.
72— Joyce, J.
Partnership Debt — Legacies to Individual
Partners.) — The doctrine of Cherrij v. BouUbee
(9 L. J. Ch. 118; 4 Myl. & Cr. 442)— namely,
that executors may retain out of a legacy or
share of residue a deht owing to their testator
by the legatee — does not entitle them to retain
a joint debt owing from a firm out of legacies
or a share of residue given to the individual
partners. Smith v. Smith (31 L. J. Ch. 91 ;
3 GifF. 263) explained and distinguished.
Turner v. Turner, 80 L. J. Ch. 473; [1911}
1 Ch. 716 ; 104 L. T. 901— C. A.
Legatee Indebted to Testator's Firm —
Executor not Entitled to Retain Legacy.] —
An executor cannot, as a general rule, retain
a legacy in satisfaction of a debt which was
due by the legatee, not to the testator, but
to a firm in which the testator was a partner.
Jackson v. Yeats, [1912] 1 Ir. E. 267—
Barton, J.
Administration of Insolvent Estate.] — An
executor can retain the whole of his testator's
chattels for the payment of a debt due to him
from his testator, and is not obliged to appro-
priate chattels of the exact amount of his debt.
When the chattels are realised the balance
over (if any) goes to the other creditors.
Broad, In re; Official Receiver, ex parte,
105 L. T. 719; 56 S. J. 35— D.
The exercise of the right of retainer by an
executor, after an administration order under
section 125 of the Bankruptcy Act, 1883, of
chattels in his possession before the making
of the order, to which he had not signified his
election, is not forbidden by sub-section 9 of
that section. lb.
Receiver — Executor Surety for Testator —
Right of Indemnity.] — There can be no
retainer by an executor-surety in respect of a
right to indemnify out of the testator's estate.
The right of retainer only arises when there
is a debt, and a surety has no debt against his
principal until he has paid off the principal
debt. When an executor-surety has paid off
the principal debt his right of retainer arises,
but only in respect of assets actually in his
hands at the time he pays off the debt or
assets coming to hia hands thereafter. Orme,
In re; Evans v. Maxwell (50 L. T. 51).
followed. Giles, In re; Jones v. Pennefather
(65 L. J. Ch. 419; [1896] 1 Ch. 956), not
followed. Beavan, In re; Davies, Banks tt
Co. V. Beavan. 83 L. J. Ch. 109; [1913]
2 Ch. 595; 109 L. T. 538; 58 S. J. 31—
Neville, J.
Retainer by Executor Jointly Guilty with
Testator of Breach of Trust — Innocent Co-
executor Appointed Trustee in Place of
Testator. 1 — An executor who has been guilty,
jointlv with his testator, of a breach of trust
cannot retain assets against the trust liability
to the prejudice of the other creditors ; nor
are the beneficiaries claiming through him in
any better position. Sander v. Heathfield
(44 L. J. Ch. 113; L. E. 19 Eq. 21) and
Faithfull, In re (57 L. T. 14), distinguished.
lb.
His co-executor, however, being himself
innocent of the breach of trust, may, on being
appointed trustee in place of the testator, even
after the latter 's death, exercise the right of
retainer in respect of the trust liability.
Barratt, In re; Whitaker £ Co. v. Barratt
(59 L. J. Ch. 218; 43 Ch. D. 70), followed.
Jones V. Evans (45 L. J. Ch. 751; 2 Ch. D.
420) distinguished. lb.
Executor of Executor — One Estate Liable to
Account to Other — Creditor's Application to
Enforce Exercise of Right.] — The defendant
was the executor of the will of F., deceased,
who, as executor of the will and legal personal
representative of M., deceased, had got in and
received assets of M.'s estate, which was in-
solvent : — Held, that the defendant could not
be compelled to exercise his right of retainer
over the assets of F.'s estate coming into his
possession in favour of the creditors of M.'s
estate. Funnell, In re; Dyne v. Funnell,
107 L. T. 145— Joyce, J.
Tvifo Estates.] — The estates of A and B
were administered in one action. The estate
of B (who was A's executor) was entitled to
the residue of the estate of A when ascertained.
B's executor, who was a creditor of B, brought
the action as executor and creditor on behalf
of himself and all other creditors ; and asserted
his right of retainer in the statement of claim,
and throughout the proceedings. A's estate
was realised, and the money representing the
proceeds was brought into Court. The executor
of B died pending the suit, which was
continued by substituting his executors as
plaintiffs. After A's estate had been realised
an order was made, upon the application of
the plaintiffs, directing an enquiry to ascertain
what part of the funds in Court represented
the residue of A's estate, and ordering the
same to be transferred to the credit of B's
estate, and it was declared that the plaintiffs
were entitled to exercise their right of retainer,
as the executors of B's executor in respect of
the amount so ascertained, in discharge of the
debt due to them from B's estate. Olpherts
V. Coryton (No. 2), [1913] 1 Jr. E. 381—
Barton, J.
c. Respecting Creditors.
Preference — Money Advanced to Estate for
Payment of Debts — Insolvent Estate — Repay-
ment of Executor in Full — Assets in Hands
of Executor.] — An executor of an insolvent
estate who himself advances money to the
estate for the purpose of paying the debts of
the testator, looking to the estate to repay
him at some future time, is entitled to prefer
creditors and to be allowed the amounts so
paid by him in full when assets fall in ; he
need not establish that at the time he made
the payments he had assets of the testator in
his hands, if at that time there was an out-
EXECUTOE AND ADMINISTEATOE.
576
standing reversionary interest of the testator.
Jones, In re; Peak v. Jones, 83 L. J. Ch. 568;
[1914] 1 Ch. 742; 58 S. J. 579— Warrington,
J .
d. Respecting Legacies.
Sole Executor a Beneficiary — Legacy —
Appropriation of Securities — Ademption.] — A
sole executor who is also a beneficiary cannot
validly appropriate towards his own legacy or
share of residue any securities which have no
market value and at his own price. Bythway,
In re; Gough v. Dames, 80 L. J. Ch. 246;
104 L. T. 411; 55 S. J. 235— Joyce, J.
A sole executrix was entitled to pecuniary
legacies of 10,O00L and 1,000/. under the will.
By her own will she specifically bequeathed
those legacies, describing them as " the two
several sums of 10,000/. and 1,000/." During
her life she purported to appropriate certain
shares and debentures towards her legacies : —
Held, that she had made no valid appropria-
tion, and that therefore her bequest of these
legacies was not pro tanto adeemed. Barclay
V. Owen (60 L. T. 220) distinguished. lb.
Specific Legacy — French Duties.] — In the
case of a specific legacy of chattels situate in
France, inasmuch as the droits de mutation
par deces are by French law a debt due by
the legatee, they are not charges and expenses
of the executors payable out of the general
estate unless the legatee can shew that the
will imposes on the executors the duty of
paying them. Scott, In re; Scott v. Scott,
83 L. J. Ch. 694 ; [1914] 1 Ch. 847 ; llO L. T.
809; 30 T. L. E. 345— Warrington, J.
Legacy Duty on Life Interest — Administra-
tion— Mistaken Payment out of Capital —
Executors Beneficially Entitled — Recoup-
ment.]— A testator bequeathed a sum of
20,000/. to M. S. for life, and directed that
on her death such sum should fall into his
residuary estate, and he appointed special
trustees of the fund. Under the provisions of
section 12 of the Legacy Duty Act, 1796, the
legacy duty was payable by four equal annual
payments out of the income derived from the
fund. By inadvertence the executors, two of
whom were residuary legatees, paid this duty
out of capital, and transferred the residue of
the 20,000/. to the special trustees -.—Held,
that the error must be rectified, the sum paid
as legacy duty upon all proper adjustments
being made being retained out of the future
payments of income to M. S. Home, In re:
Wilson V. Cox-Sinclair (74 L. J. Ch. 25;
[1905] 1 Ch. 76), considered. Ainsworth, In
re; Finch v. Smith, 84 L. J. Ch. 701: [1915]
2 Ch. 96; 113 L. T. 368; 31 T. L. K. 392—
Joyce, J.
e. Power to Pledge Assets.
Pledge by One of Two Executors and
Trustees — Validity — Payment of Debts —
Passing of Residuary Account — Lapse of
Time — Assent to Trusts of Will.]— A testator
by his will, after appointing two persons
executors and trustees and giving pecuniary
legacies, gave his residuary estate to his
trustees upon trust for sale and distribution
as therein mentioned. Fourteen years after
the testator's death one of the executors,
without the knowledge of his co-executor,
pledged certain plate, forming part of the
testator's residuary estate, with a firm of
pawnbrokers, who had no notice that he was
not the absolute owner thereof, and misapplied
the money so raised. All the debts and
legacies, so far as was known, were paid,
and the residuary account was passed, within
one year of the testator's death, but the
residuary estate had not been completely dis-
tributed. On the death of the pledgor the
transaction was discovered, and an action was
brought by the co-executor and a new trustee
against the pawnbrokers to recover the plate :
— Held, that the proper inference to be drawn
from the facts was that at the date of the
pledge the executors had assented to the trust
dispositions taking effect, and held the plate
as trustees; that, therefore, the deceased
executor had no power to pledge the plate, and
the existing trustees were entitled to recover
it. Attenborough v. Solomo7i, 82 L. J. Ch.
178; [1913] A.C. 76; 107 L. T. 833; 57 S. J.
76 ; 29 T. L. E. 79— H.L. (E.)
Decision of the Court of Appeal (81 L. J.
Ch. 242; [1912] 1 Ch. 451) affirmed. lb.
f. Powers as to Realty.
Sale of Surface — Minerals Reserved —
Sanction of Court — When Necessary.] — The
power of an executor over the real estate of
his testator is, since the Land Transfer Act,
enlarged, and he has now the same power in
dealing with it as he previously had in dealing
with the personal estate. His power of
realising the estate for the benefit of creditors
is paramount to the provisions of the will.
The phrase trustee " or other person " in
section 44 of the Trustee Act, 1893, does not
include an executor. Cavendish and Arnold's
Contract, In re, 56 S. J. 468 — Neville, J.
Conveyance by Executor — " All estate, right
and title" — Interpretation of Deed — Pur-
chasers for Value.] — An executor, who had a
beneficial interest in the testator's estate,
joined with other beneficiaries in the sale and
conveyance of a part of the estate to bona fide
purchasers for value. The executor did not
purport to convey in his capacity as executor,
but the deed stated that all the estate, right,
and title of the vendors were conveyed : — Held,
that the deed conveyed the whole title vested
in the executor, and that it was not proper to
infer from the conduct of the parties and from
indications in the deed that the intention was
only to convey the beneficial interest, since
that inference was contrary to the terms of
the conveyance. Bijraj Nopani v. Pur a
Sundary Dassee, L. E. 41 Ind. App. 189— P. C.
III. LIABILITIES.
See also Vol. VI. 1344, 2036.
Leaseholds — Assignment — " Purchaser."] —
Where a testator's residuary estate comprises
leaseholds of so onerous a nature that they
can only be assigned on the executors paying
577
EXECUTOR AND ADMINISTEATOR.
578
the assignees a sum of money to accept the
assignments, such assignees are not " pur-
chasers " within the meaning of section 27
of the Law of Property Amendment Act, 1859,
and consequently the executors ought to set
apart out of the residuary estate a sufficient
sum to meet future liabilities in respect of
the rents reserved by and the covenants con-
tained in the leases. Lawley, In re; Jackson
V. Leighton, 81 L. J. Ch. 97; [1911] 2 Ch.
630; 105 L. T. 571; 56 S. J. 13— Swinfen
Eady, J.
Executor de Son Tort — Repairing Covenant
in Lease — Death of Assignee Intestate.] —
The plaintiffs sued the defendant as executor
de son tort for breaches of covenant in a lease
of which they were the lessors and the
defendant's mother had been assignee. The
defendant's mother died in 1910 intestate. No
letters of administration were taken out.
From that date onwards the defendant, who
had collected the rents in his mother's life-
time, collected them for her sister. The
sister died in 1912. The defendant continued
to collect the rents, and, after paying ground
rent to the plaintiffs, held the balance for the
owners, whoever they might be. In December,
1912, the plaintiffs first discovered that the
defendant's mother was dead, and, acting
on the defendant's suggestion, they took
possession of the premises. Subsequently they
brought this action. There were no assets of
the mother's estate : — Held, that the defen-
dant was not liable by privity of estate since
the term had not vested in him, and he was
not liable by estoppel. Position of a lawful
executor distinguished. Stratford-upon-Avon
Corporation v. Parker, 83 L. J. K.B. 1309;
[1914] 2 K.B. 562; 110 L. T. 1004; 58 S. J.
473— D.
Breach of Promise of Marriage — Death of
Defendant — Action Continued against
Executor — Damages — Special Damage —
Giving up Millinery Business — Survival of
Action.] — Pecuniary loss sustained by a
woman through giving up an employment or
business in consideration of a promise of
marriage, or any similar loss suffered in such
circumstances, is not special damage flowing
from the breach of the promise to marry so as
to be recoverable by her in an action against
the personal representative of the promisor.
Quirk V. Thomas {Executor of), 84 L. J.
K.B. 953; [1915] 1 K.B. 798; 113 L. T. 239;
69 S. J. 350; 31 T. L. E. 237— Lush, J.
Quaere, whether an action for damages for
breach of promise will in any circumstances
lie against the personal representative of a
deceased promisor. Ih.
Attachment — Executor and Creditor of
Estate — Fiduciary Relation — Personal Judg-
ment against Executor — Determination of
Fiduciary Relation.] — Where the only creditor
of a deceased debtor has obtained in ar\
administration action a personal order against
the executor for payment of his certified debt,
the fiduciary relation which previously existed
between the creditor and executor is deter-
mined, and the creditor cannot subsequently
pursue any remedy depending on the continued
existence of this fiduciary relation. He is not
entitled, therefore, to an order against the
executor for payment into Court of money in
his hands as such executor, or to the subse-
quent attachment of the executor under the
punitive jurisdiction reserved to the Court
under the third exception to section 4 of the
Debtors Act, 1869. Thomas, In re; Sutton,
Garden d Co. v. Thomas, 81 L. J. Ch. 603;
[1912] 2 Ch. 348; 103 L. T. 996 ; 56 S. J. 571
— C.A.
IV. ADMINISTEATION.
See also Vol. VI. 1418, 2039.
a. Debts, Liabilities and Priorities.
Gift of Specific Foreign Realty and
Personalty Subject to Legacies and Debts —
No Express Exoneration of Residuary Estate
— Foreign Personalty Primarily Liable —
Foreign Realty not so Liable — Mixed Fund.]
A testator appointed executors and gave
legacies free of duty and, subject to the pay-
ment of the said legacies and duty and his
funeral and testamentary expenses and debts,
he gave all his real estate situate in the
Argentine Eepublic, together with certain
personal property in or about the same, to his
trustees upon trust to sell and to pay the
proceeds to certain nephews in equal shares,
and he gave all the residue of his real and
personal estate to the plaintiff. On the ques-
tion whether the testator had charged his
specifically given real and personal estate in
the Argentine Eepublic with the payment of
his legacies, duties, expenses, and debts in
exoneration of his residuary estate, — Held,
first, that, as a matter of construction, the
charge was confined to the Argentine property.
Secondly, that the rule that something must
be found in the will to shew that the testator
intended not only to charge the realty, but
to discharge the personalty, applies to land
outside the jurisdiction. Thirdly, that, since
there was no trust for conversion for the pur-
poses of satisfying the charge upon the
specifically given property, it was not a
" mixed fund " within the authority of
Roberts v. Walker (1 Euss. & M. 752).
Fourthly, that the specifically given personalty
was charged in exoneration of the residuary
estate. Fifthly, that the legacies, duties,
expenses, and debts were therefore payable
out of the several funds in the following order
of administration : (a) the specifically given
personalty, (b) the residuary estate, and
(c) the specifically given realtv. Smith, In re;
Smith V. Smith, 83 L. J.'Ch. 13; [1913]
2 Ch. 216; 108 L. T. 952— Eve, J.
Proceedings by Beneficiaries — Clause
Throwing Costs on Plaintifif — Repugnancy —
Claim for Wilful Default.]— A festator by a
clause in his will provided that " in case any
action or other proceedings for the administra-
tion of my estate shall be commenced in the
High Court of Justice in the name of any son
or daughter or grandchild or reputed grand-
child of mine of full age, as plaintiff or
plaintiffs, then my trustees shall henceforth
stand possessed of moneys to which such
19
579
EXECUTOR AND ADMINISTRATOR.
580
plaintiff or plaintiffs would otherwise have
been entitled under this my will in trust to
pay thereout in the first place the costs as
between solicitor and client of all parties
having liberty to attend such action or pro-
ceedings and that this present trust shall have
priority over all trusts herein declared in
favour of such plaintiff.'" The testator died
in 1886, and in 1910 certain grandchildren of
the testator commenced proceedings against the
trustees for administration on the ground of
wilful default. At the hearing, the defendants
admitted liability, but contended that they
were not liable for costs up to and including
the hearing, having regard to the above clause
in the will : — Held, that the above clause did
not apply to the present action, the gist of
which was lawful default ; and that in any
case the clause was repugnant to the gift.
Williams. In re: Williams v. Williams,
81 L. J. Ch. 296 ; [1912] 1 Ch. 399 : 106 L. T.
584; 56 S. J. 325— Swinfen Eady, J.
Estate Consisting Partly of Mortgage Debts
— Interest in Arrear at Death — Tenant for
Life and Remainderman — Rents of Mortgaged
Premises, how Applicable/ — A testator gave
an estate consisting partly of mortgage debts
to trustees for beneficiaries for life and after-
wards for others. Mortgage interest was in
arrear at his death. His trustees continued,
as he had been, in receipt of the rents of the
mortgaged premises : — Held, that the rents
were applicable, first, in discharge of the
arrears due to the e.state ; next, in payment to
the tenants for life of sums not exceeding the
mortgage interest ; and lastly, as capital.
Coaks. In re; Coaks v. Bayley, 80 L. J.
Ch. 136; [1911] 1 Ch. 171; 103 L. T. 799—
Warrington, J.
Insolvent Estate — Realisation of Assets —
Separate Account — Priority." — In a creditor's
administration suit, in which the general
assets turned out to be insufficient to pay the
costs of suit in full, the defendants, the
executors of the deceased, claimed priority for
their costs of suit, as against a secured
creditor who had established a charge upon
a fund which had been realised in connection
with a sale in another suit and had been
brought into Court and carried to a separate
account : — Held, that they could only claim
priority for such of their costs of suit as were
relative to the separate account. Bell v.
Butterly, [1911] 1 Ir. R. 312— Barton, J.
Specific Gift of French Assets — Executors
and Trustees — Sale of French Assets by
Trustees — French Succession Duty — Costs
Incurred in France — Incidence of Duty and
Costs.l — Where trustees of a will incurred
costs and paid duties abroad in respect of
foreign property specifically bequeathed, they
having as executors assented to the bequest, —
Held, that both the foreign costs and the
foreign duty must be borne by the specifically
bequeathed property and not by the residue.
Brewster, In re; Butler v. Southam. (77 L. J.
Ch. 605; [1908] 2 Ch. 365). followed. Perry
V. Meddowcroft (12 L. J. Ch. 104; 4 Beav.
197, 204) doubted. De Sommery, In re;
Coelenbier v. De Sommery, 82 L. J. Ch. 17;
[1912] 2 Ch. 622 ; 107 L. T. 253 ; 57 S. J. 78—
Parker, J.
Promise by Testator to Pay for Alterations
in Chapel — Contract Entered into on Faith of
Promise — Liability of Testator's Estate.] — A
testator promised to defray the cost of certain
alterations in a chapel in which he was
interested, provided the total expense did not
exceed a certain amount. Estimates were
obtained and submitted to the testator, and
thereafter the provost of the chapel entered
into a formal contract for the work. The
testator died after some of the work had been
executed, but before a contract for the
remainder had been entered into : — Held, that
the testator's estate was liable for the cost of
so much only of the work in respect of which
a contract had been entered into before the
testator's death. Mountgarret (Viscount), In
re; Ingilby v. Talbot. 29 T. L. E. 325—
Pwinfen Eady, .7.
Fraud by Broker — Transactions in Stocks
— Claim against Broker's Estate.] — One
Frauklyn, who carried on business as an out-
side stockbroker, induced a client to enter into
transactions by fraudulent statements that he
was buying for her when in fact he was him-
self selling to her. None of the transactions
were genuine purchases or sales, as Eranklyn
never intended to deliver, and the client never
intended to accept, delivery of the stocks. In
the result the client incurred a considerable
loss : — Held, in an action for the administra-
tion of Franklyn's estate, that the client's
executor was entitled to prove against
Franklyn's estate for the amount which the
client had placed in Franklyn's hands — first,
because the transactions were induced by
fraud; and secondly, because Franklyn was in
a fiduciary position and the representatives of
a deceased trustee were never allowed to say
that they could not pay a cestui que trust the
amount which their testator ought to have
paid. Franklyn, In re; Franklyn v. Franklyn,
30 T. L. R. i87— C.A.
b. Practice.
Manager Appointed by Court to Carry on
Testator's Business — Indemnity.] — A manager
appointed by the Court in an administration
action to carry on the business of a testator
in the place of the executor, who had an
implied power to carry it on, no particular
assets being devoted by the will for that
purpose, is entitled to be indemnified by the
general assets against liabilities incurred by
him in carrying on the business, and the trade
creditors are consequently entitled to resort
to such assets for payment of their debts.
The fact that funds have been carried to the
separate credits of legatees does not free such
funds from liability in this respect. The
effect of carrying funds to a separate credit
considered. O'Neill v. McGrorty, [1915]
1 Ir. R. 1— M.E.
Sale of Land — Approval of Master — Order
not Entered — Judge's Refusal to Confirm.] —
In an administration suit an estate was
ordered to be sold. A contract was entered
581
EXECUTOE AND ADMINISTKATOK.
582
into, subject to confirmation by the Court, and
approved by the Master, but before the order
was passed and entered a third party, a
creditor of the estate, offered to purchase the
property at a higher price. Upon summonses
by the third party for liberty to attend pro-
ceedings under the administration order, and
by the purchaser for the passing of the
Master's order, — Held, that the Master's con-
firmation was ineffective until the order had
been passed and entered, and that the Judge
had power to re-open the matter and refuse
confirmation. Bartlett, In re; Newman v.
Hook (50 L. J. Ch. 205; 16 Ch. D. 561), con-
sidered. Thomas, In re; Bartley v. Thomas,
80 L. J. Ch. 617 ; [1911] 2 Ch. 389; 105 L. T.
59; 55 S. J. 567 — Warrington, J.
Order for Sale of Real Estate —
Conversion.] — An absolute order for sale of
real estate made within the jurisdiction of the
Court in an administration action operates as
a conversion of such real estate into personalty
from the date of the order. Fauntleroy v.
Beebe, 80 L. J. Ch. 654; [1911] 2 Ch. 257;
104 L. T. 704; 55 S. J. 497— C. A.
Following Assets — Secured Creditor —
Equitable Right — Acquiescence — Lapse of
Time — Delay — Not Amounting to Laches.] —
Where mortgagees of a deceased mortgagor
have neither actively assented to the distribu-
tion of the estate nor prejudiced by their
conduct the beneficiaries in realisation, mere
delay is not in itself a bar to their com-
mencing a creditors' administration action to
enforce their security by following the assets.
Eustace, In re; Lee v. McMillan, 81 L. J.
Ch. 529; [1912] 1 Ch. 561; 106 L. T. 789;
56 S. J. 468~Swinfen Eady, J.
Insolvent Estate — Transfer to Bankruptcy
Court — Discretion.] — The jurisdiction to
transfer administration proceedings from the
Chancery Division to the Bankruptcy Court
under section 125 of the Bankruptcy Act, 1883,
may be exercised at any stage of the proceed-
ings, and therefore after judgment. Such an
order will be made where the principal ques-
tions to arise will be outside the administration
action. Tarr, In re: Darley v. Tarr, 57 S. J.
60— Eve, J.
Parties — Summons — Real Estate — Creditors'
Action by Single Creditor as Individual.] —
Since the Land Transfer Act, 1897, it is no
longer necessary for a creditor, in order to
obtain an order for the administration of real
estate, to sue on behalf of himself and all
other creditors. James, In re: James v.
Jones, 80 L. J. Ch. 681; [1911] 2 Ch. 348;
106 L. T. 214— Warrington, J.
Costs — Order virithout Reservation of Costs —
Further Consideration.] — In an action against
an executor or trustee where the Court, after
hearing the facts, makes an order for adminis-
tration without any reservation of costs, it is
not in accordance with the practice to enter-
tain an application on further consideration
that the executor or trustee should be ordered
to pay costs down to the judgment ; but this
practice does not extend to a case where the
order is made without evidence on both sides,
or full discussion, either for the sake of con-
venience or to save expense, or otherwise in
circumstances in which the Court has not a
sufficient knowledge of the facts. Gardner,
In re; Roberts v. Fry, [1911] W. N. 155—
Eve, J.
Trust Fund — Division into Thirds —
Ultimate Subdivision of a Third into Moieties
— Direction to Pay Testamentary Expenses
ont of Personalty — Costs of Ascertaining
Beneficiaries.] — A testatrix (after giving a
general direction for the payment of her testa-
mentary expenses, &c., out of personalty)
divided her real and personal residuary estate
into thirds, with a direction that, on the
happening of certain events (which had
occurred), one of these shares should be further
subdivided into moieties. The trusts of this
last third having been administered by the
Court, — Held, that each moiety of the third
(and not the third as a w^hole) constituted a
share within the meaning of Order LXV.
rule 14b ; that there were no special circum-
stances in the case (notwithstanding the
presence of the general direction for the
payment of testamentary expenses out of
personalty) to justify the Court in interfering
with the ordinary operation of the rule ; and
that, accordingly, the costs of ascertaining the
beneficiaries of each separate moiety must be
borne by each moiety respectively. Whitaker,
In re; Pender v. Evans, 80 L. J. Ch. 63;
[1911] 1 Ch. 214; 103 L. T. 657— Neville, J.
V. DISTRIBUTION.
See also Vol. VI. 1582, 2051.
Express Trustee — Earmarking Entries.] —
The mere fact that an executor, who is not
also appointed a trustee by the will, retains
a fund to answer the claim of a particular
next-of-kin, is not enough to turn the executor
into an express trustee of the fund, but if, in
addition, he earmarks the fund as the fund of
the particular next-of-kin, and uses express
words which shew that he intends to hold
the fund, not for himself, but for the persons
entitled to it, he does become an express
trustee of the fund. Gompertz Estate, In re:
Parker v. Gompertz, 105 L. T. 664; 56 S. J.
11 — Warrington, J.
Personal Estate — Settled Residue — Pay-
ments by Executors — Adjustment of Accounts
between Tenant for Life and Remainderman.]
— Where executors at various dates long before
the expiration of one year from the death of
the testator paid out sums amounting to many
thousands of pounds in respect of estate duty,
legacy duty, and legacies, — Held, that, on
taking the account of the share of income due
to the tenants for life during the year succeed-
ing the testator's death, the proper mode of
adjustment was to charge against them in
respect of the sums so paid interest on the
capital sum which would with siicli interest
make up the sums so paid, such interest being
calculated only from the time of the death of
the testator until the respective dates when
the payments were in fact made. McEuen,
583
EXECUTOR AND ADMINISTRATOR— EXTRADITION.
584
In re; McEuen v. Phelps, 83 L. J. Ch. 66;
[1913] 2 Ch. 704; 109 L. T. 701; 58 S. J. 82;
30 T. L. R. 44— Sargant, J.
The rule laid down in AUhusen v. WhitteU
(36 L. J. Ch. 929; L. R. 4 Eq. 295), that in
adjusting accounts between tenant for life and
remainderman the executors must be taken to
have paid debts and legacies not out of capital
only, nor out of income only, but with such
portion of capital as, together with the income
of that portion for one year, was sufficient for
the purpose, is not to be slavishly followed in
every case where residue is settled, and should
not be applied in a case where large sums have
been expended in clearing an estate at
intervals considerably prior to the end of the
first year. Lambert v. Lambert (43 L. J.
Ch. 106; L. R. 16 Eq. 320) observed upon. lb.
Gift of Specific Foreign Realty and
Personalty Subject to Legacies and Debts —
No Express Exoneration of Residuary Estate
— Foreign Personalty Primarily Liable —
Foreign Realty not so Liable — Mixed Fund.]
— A testator appointed executors and gave
legacies free of duty and, subject to the pay-
ment of the said legacies and duty and his
funeral and testamentary expenses and debts,
he gave all his real estate situate in the
Argentine Republic, together with certain
personal property in or about the same, to his
trustees upon trust to sell and to pay the pro-
ceeds to certain nephews in equal shares, and
he gave all the residue of his real and personal
estate to the plaintiff. On the question
whether the testator had charged his speci-
fically given real and personal estate in the
Argentine Republic with the payment of his
legacies, duties, expenses, and debts in
exoneration of his residuary estate, — Held,
first, that, as a matter of construction, the
charge was confined to the Argentine property.
Secondly, that the rule that something must
be found in the will to shew that the testator
intended not only to charge the realty, but to
discharge the personalty, applies to land out-
side the jurisdiction. Thirdly, that, since
there was no trust for conversion for the pur-
poses of satisfying the charge upon the
specifically given property, it was not a
" mixed fund " within the authority of
Roberts v. Walker (1 Russ. & M. 752).
Fourthly, that the specifically given personalty
was charged in exoneration of the residuary
estate. Fifthly, that the legacies, duties,
expenses, and debts were therefore payable out
of the several funds in the following order of
administration : (a) the specifically given
personalty, (b) the residuary personal estate,
and (c) the specificallv given realtv. Smith,
In re: Smith v. Sm'ith, 83 L. J. Ch. 13;
[1913] 2 Ch. 216; 108 L. T. 952— Eve, J.
Intestacy — Children Taking by Representa-
tion Debt of Parent to the Intestate — Original
Title of the Children.] — Where a father had
covenanted with his brother to pay off a mort-
gage debt, and had died without carrying out
such covenant, leaving four children, and the
brother had subsequently died intestate, —
Held, that the four children were entitled to
receive their share of the personal estate of the
intestate without first making good to the
estate of the intestate the moneys secured by
the mortgage ; for although they did in fact
take a distributive share between them as the
persons who legally represented their father,
yet they nevertheless took by original title,
and not under or through their father. Gist,
In re; Gist v. Timbrill (75 L. J. Ch. 657;
[1906] 2 Ch. 280), followed. White, In re;
White V. White, 111 L. T. 274; 58 S. J. 611
— Sargant, J.
EXTENT, WRIT OF.
See EXECUTION.
EXTRADITION.
I. Extradition Acts and Treaties, 584.
II. Fugitive Offenders Act, 1881, 587.
I. EXTRADITION ACTS AND TREATIES.
See also Vol. VII. 1, 1655.
British Subject — Offence Committed in
France — Requisition by French Diplomatic
Agent.] — Where, under the Extradition Act,
1870, and the treaties with France of 1876 and
1908, a British subject is sought to be
extradited from England to France, the only
requisition necessary is a requisition by the
French diplomatic agent. It is not necessary
that there should also be a requisition by the
diplomatic agent of the British Government.
Rex V. Brixton Prison (Governor) ; Wells,
Ex parte. 81 L. .J. K.B. 912; [1912] 2 K.B.
578; 107 L. T. 408: 76 J. P. 310; 23 Cox C.C.
161; 28 T. L. R. 405— D.
France — Time within which Surrender to
Take Place — Fugitive "committed to prison"
— " Two months after such committal " —
Lapse of Two Months from Arrest of Fugitive.]
— Article X. of the Extradition Treaty with
France, signed August 14, 1876, provides that
" if the fugitive criminal who has been com-
mitted to prison be not surrendered and con-
veyed away within two months after such
committal, or within two months after the
decision of the Court upon the return to a writ
of habeas corpus in the United Kingdom, he
shall be discharged from custody, unless suffi-
cient cause be shewn to the contrary " : — Held,
that the words " committed to prison " in the
article mean committed to prison by the
magistrate to await surrender to the French
Government, and that therefore the period of
two months within which the fugitive criminal
must be surrendered runs from the date of such
committal and not from the date of the arrest.
Rex V. Brixton Prison (Governor) ; Mehamed
Ben Romdan, Ex parte, 81 L. J. K.B. 1128;
585
EXTRADITION,
586
[1912] 3 K.B. 190; 76 J. P. 391; 28 T. L. R. I
530— D. I
Treaty Expressed in Two Languages.] — [
Where the articles of an extradition treaty I
with a foreign country are expressed both in i
the English language and in a foreign
language, the English Courts, in construing
the treaty, can only look at the English
version of the treaty. lb.
French Subject — Robbery with Violence —
Conviction and Sentence in France — Prison
Breach — Flight to England — " Fugitive
criminal ' ' — Extradition Order — Validity —
Habeas Corpus. ^ — M., a French subject, was
convicted and sentenced in France for robbery
with violence, a crime for which, by the
Extradition Treaty, 1876, between Great
Britain and France, extradition is to be
granted. While he was serving his sentence
he broke prison, and fled to England. The
French police applied for his extradition on
the ground that he was a fugitive criminal who
had been convicted of an extradition crime,
and the magistrate made an order of com-
mittal under section 10 of the Extradition Act,
1870. An application was then made on his
behalf for a rule nisi for a writ of habeas
corpus on the ground that, his crime of robbery
with violence having become merged in his
conviction, the crime for which he was now
sought to be extradited was that of prison
breach, which was not an extradition crime;
and, further, that he was not a " person who
had been convicted of a crime " within the
meaning of Article I. of the Extradition Treaty
between Great Britain and France, 1876 : —
Held, refusing the rule, that M. was a
fugitive criminal " within the meaning of
section 10 of the Extradition Act, 1870, and
also a " person who had been convicted of a
crime " within the meaning of Article I. of
the Extradition Treaty between Great Britain
and France, 1876, and that therefore the order
of committal was good. Held, further, that
the words " poursuivi pour vol," as used in the
documents sent from France, meant " prose-
cuted to conviction for," and not merely
"charged with " robbery, and that the magis-
trate, in committing the applicant on the
ground that he had been convicted, had not
therefore made an order in respect of an offence
for which the extradition had not been
demanded. Moser, Ex parte, 84 L. J. K.B.
1820; [1915] 2 K.B. 698; 113 L. T. 496;
31 T. L. R. 384, 438— D.
Germany — Grounds for Refusing Extradition
— "Tried and discharged."] — Article IV. of
the Extradition Treaty with Germany of 1872
provides that " The extradition shall not take
Dlace if the person claimed . . . has already
been tried and discharged or punished ... in
the United Kingdom . . . for the crime for
which his extradition is demanded " : — Held,
that, in order to claim the benefit of that
article, there must have been a trial of the
person for the crime alleged against him,
accompanied by an acquittal or a sentence of
punishment ; and that the discharge of the
person owing to some informality in the pro-
cedure on a preliminary enquiry in which the
charge could not have been finally decided was
not sufficient to enable him to escape extra-
dition. Rex V. Brixton Prison (Governor) ;
Stalhnann, In re, 82 L. J. K.B. 8; [1912]
3 K.B. 424; 107 L. T. 553; 77 J. P. 5;
23 Cox C.C. 192 ; 28 T. L. R. 572— D.
Obtaining Money by Cheating at Cards —
False Pretences." — Section 17 of the Gaming
Act, 1845, provides that " Every person who
shall by any fraud ... in playing at or with
cards, . . . win from any other person to him-
self, or any other or others, any sum of money
or valuable thing, shall be deemed guilty of
obtaining such money or valuable thing from
such other person by a false pretence, with
intent to cheat or defraud such person of the
same, and, being convicted thereof, shall be
punished accordingly." A person, therefore,
who obtains money or a valuable security by
cheating at cards can be extradited under the
Extradition Treaty with Germany of 1872 for
obtaining money or goods by false pretences,
notwithstanding that the offence under sec-
tion 90 of the Larceny Act, 1861. of inducing
a person by a false pretence, with intent to
defraud, to accept or indorse a valuable
security, was only made an extradition crime
by the Extradition Act, 1873, and therefore
does not come within the Extradition Treaty
with Germany of 1872. Rex v. Brixton Prison
(Governor) : Stallman, In re, 82 L. J. K.B. 8;
[1912] 3 K.B. 424; 107 L. T. 553; 77 J. P. 5;
23 Cox C.C. 192; 28 T. L. R. 572— D.
Italy — Order in Council — No Formal Proof
of Order — Committal — Habeas Corpus — Juris-
diction of Committing Magistrate.] — Where a
foreign State demands the surrender of a
criminal fugitive and an Order in Council is
in existence applying the Extradition Acts to
that State, a writ of habeas corpus will not be
granted for his discharge, after committal for
extradition, on the mere ground that the Order
in Council was not formally proved before the
committing magistrate. Rex v. Brixton Prison
(Governor) ; Servini, Ex parte, 83 L. J.
K.B. 212; [1914] 1 K.B. 77; 109 L. T. 986;
78 J. P. 47; 23 Cox C.C. 713; 58 S. J. 68;
30 T. L. R'. 35— D.
A prisoner, who had been arrested in
England on the requisition of the Italian
Government, was brought before a Metro-
politan police magistrate and committed by
him to Brixton Prison for the purpose of
extradition on charges of forgery and other
offences alleged to have been committed in
Italy. The Order in Council applying the
Extradition Acts to Italy, although in exist-
ence, in accordance with the general practice
of the police Court in extradition cases was
not formally proved before the committing
magistrate, nor was any objection taken on
behalf of the prisoner to this omission. A
rule nisi to shew cause why a writ of habeas
corpus should not be issued on tlie ground
(inter alia) that no proof of the Order in
Council was given having been obtained, —
Held (by Ridley, J., and Scrutton, J.;
Bailhache, J., dubitante), that a writ of habeas
corpus ought not to be granted, as there had
merely been an omission to give formal
evidence on a matter necessary to give juria-
587
EXTRADITION— FALSE IMPEISONMENT.
588
diction to the committing magistrate, although
there was in fact no question as to the exist-
ence of such jurisdiction. lb.
Per Scrutton, J. : It was desirable that in
future in every case the Order in Council
should be formally proved, because it might
be of importance to the prisoner to know
whether it contained any provisions which
might assist him. 7b.
Requisition for Surrender not in Form Pre-
scribed by Treaty — Order by Home Secretary
to Arrest — Jurisdiction of Magistrate.] — A
warrant for the arrest of a French subject who
was in England was issued by a French
magistrate, but the depositions accompanying
the requisition for surrender were taken
before a Belgian official. The treaty
between this country and France required
that the requisition for the surrender of the
accused should be accompanied by depositions
taken before the same magistrate as had
issued the warrant of arrest. Nevertheless,
the Home Secretary issued an order to a
London magistrate requesting him, if there
were due cause, to issue a warrant of arrest.
The magistrate, after hearing evidence, issued
the warrant : — Held, that, as the requirements
as to depositions were procedure only, the
magistrate had jurisdiction to issue the
warrant, and that it was not essential to the
validity of the order of the Home Secretary
that the procedure in France should have been
regular. Rex v. Brixton Prison (Governor) ;
TJwynpson, Ex parte, 80 L. J. K.B. 986;
ri9H] 2 K.B. 82; 105 L. T. 66; 75 J. P. 311;
22 Cox C.C. 494; 27 T. L. E. 350— D.
II. FUGITIVE OFFENDEES ACT, 1881.
See also Vol. VII. 1658.
Committal — Order Nisi for Habeas Corpus
Discharged by High Court — Original Applica-
tion to Court of Appeal for Relief — Res
Judicata.! — A native of India having, under
section 5 of the Fugitive Offenders Act, 1881,
and in pursuance of an Indian warrant
charging him with certain offences, been com-
mitted to prison by a Metropolitan police
magistrate to await his return to India, an
application was made on his behalf to the
King's Bench Division of the High Court of
Justice for an order nisi for a writ of habeas
corpus addressed to the governor of the prison.
The King's Bench Division made an order nisi
calling upon the governor of the prison to shew
cause why a writ of habeas corpus should not
issue directed to him to bring the body of the
applicant before the Court. This order was
expressed to be made on various grounds, one
of which was that (following the words of
section 10 of the Fugitive Offenders Act, 1881)
it would be " unjust or oppressive or too severe
a punishment to return " the applicant to
India, because the alleged offences were of a
" trivial nature," and because the application
for his return was not " made in good faith
in the interests of justice." On the hearing of
the argument on cause being shewn before the
King's Bench Division questions arising under
section 10 of the Fugitive Offenders Act were
discussed by counsel and were considered by
the Judges in their judgments, but the order
of the Court as drawn up and perfected was
simply an order that the order nisi should be
discharged. The Court of Appeal having dis-
missed an appeal by the applicant from that
decision on the ground that it was a decision
in a criminal cause or matter, the applicant
made an original application to the Court of
Appeal to exercise in his favour the powers
conferred on the Court by section 10 of the
Fugitive Offenders Act, which empowers a
" superior Court " in the circumstances therein
mentioned to discharge the applicant or make
such other order as to the Court seems just.
The objection was taken on the part of the
Crown that, assuming the Court of Appeal to
be by virtue of section 39 of the Fugitive
Offenders Act a " superior Court " within the
meaning of section 10, having concurrent juris-
diction with the High Court, this application
could not be entertained, for the matter of the
application was res judicata between the appli-
cant and the Crown : — Held, that, inasmuch
as the only matter which the records of the
Court shewed to have been adjudicated by the
King's Bench Division was that the order nisi
for a writ of habeas corpus should be dis-
charged, the matter of tliis application was not
res judicata, and therefore the Court of Appeal
had jurisdiction to entertain the application.
Rex V. Brixton Prison (Governor) ; Savarkar,
Ex parte, 80 L. J. K.B. 57 ; [1910] 2 K.B.
1056 ; 103 L. T. 473 ; 26 T. L. E. 561— C.A.
FACTORS ACT.
See PEINCIPAL AND AGENT.
FACTORY.
See MASTEE AND SEEVANT.
FACULTY.
See ECCLESIASTICAL LAW.
FAIR.
See MAEKET.
FALSE IMPRISONMENT.
See MALICIOUS PEOCEDUEE.
589
FALSE PRETENCES— FISH AND FISHERIES
590
FALSE PRETENCES.
See CRIMINAL LAW.
FATAL ACCIDENTS ACT.
See NEGLIGENCE.
FENCE.
Duty of Owner of Land.] — See Commons.
FERRY.
See WAY.
FERTILISERS AND
FEEDING STUFFS.
See LOCAL GOVEENMENT.
FINE.
See REVENUE.
FINES AND RECOVERIES.
See SETTLEMENT.
FIRE.
See INSURANCE; RAILWAY.
Liability for Death of Prisoner.] — See
Negligence.
Liability of Stiipowner.] — See Shipping
(Bill of Lading).
FISH AND FISHERIES.
1. Public Rights, .590.
2. Fishery Acts, 591.
3. Private Fisheries, 592.
4. Salmon Fishery, 593.
5. Larceny of Fish. See Criminal Law.
1. PUBLIC RIGHTS.
See also Vol. VII. 84, 1665.
River Navigable and Floatable — Exclusive
Right of the Crown to Fishing — Letters
Patent — Construction.] — The appellants were
grantees of lands on both sides of a river which
was shewn by the evidence to be navigable
and floatable at such locality and from thence
to its mouth : — Held, that the right of fishing
in the river vested exclusively in the Crown,
and that, as the letters patent to the appel-
lants in 1883 granting the said lands were
plain and unambiguous in their terms and did
not specifically grant rights of fishing in the
river opposite thereto, the patentees could not
claim such rights under previous or subsequent
correspondence as enlarging the terms of the
grants, or by reason of such rights having been
exercised by them continuously from the date
of the patents without hindrance or inter-
ference. Wyatt V. Att.-Gen. of Quebec,
81 L. J. P.C. 63; [1911] A.C. 489;' 105 L. T.
259— P. C.
Navigable Non-tidal Lake — Public User for
Centuries — Prescription — Documentary Title —
Evidence.] — The Crown is not of common
right entitled to the soil or waters of an inland
non-tidal lake, and no right can exist in the
public to fish in such waters. One and the
same law applies to inland non-tidal waters
whatever may be the area of the water space.
Johnston v. &Neill, 81 L. P. P.C. 17; [1911]
A.C. 552; 105 L. T. 587; 55 S. J. 686;
27 T. L. R. 545— H.L. (Ir.)
The respondents claimed the exclusive right
of fishing for eels in lough Neagh and over a
great stretch of the river Bann, under grants
from the Crown to their predecessors in 1605
and later documents ; that the Crown had a
title to make the grants; that they and their
predecessors had continuously possessed and
enjoyed the fishery in the river and possessed
the fishery on the lough, and that their pre-
decessors had also received rents from others
for the fishery in the lough itself, and that,
although the public had in fact always fished
in the lough, they had done so by indulgence
and not of right. The appellants claimed that
the public can in law have a right of fishery
in non-tidal waters, and that the respondents
had not established their documentary title,
and the action of the respondents did not lie : —
Held (The Lord Chancellor, I^ord Shaw, and
Lord Robson dissenting), that the respondents
had established their documentary title, and
were entitled to an injunction to restrain the
appellants from fishing. lb.
591
FISH AXD FISHEKIES.
592
2. Fishery Acts.
See also Vol. VII. 90, 1667.
Fishing within " exclusive fishery limits of
the British Islands" — Foreigner not Subject
of a Power Signatory to Convention.] — The
Sea Fisheries Act, 1883, enacts that no person
on board a foreign sea-fishing boat shall fish
within " the exclusive fishery limits of the
British Islands"; these limits being defined
in the Act as that portion of the sea within
which British subjects have, by international
law, the exclusive right of fishing or, where
such portion is defined by any convention
with any foreign State, as regards the sub-
jects of that State, the portion so defined.
By Article II. of a convention between Great
Britain and certain States (of which Norway
is not one) which appears in a schedule to,
and is incorporated with, the Act, it is pro-
vided that the fishermen of each country shall,
as regards bays, have the exclusive right of
fishing within three miles of a straight line
drawn across the bay at a point described. A
Norwegian subject, the master of a trawler
registered in Norway, having been convicted
on a complaint which set forth that, contrary
to the Act, he had fished " witliiu the exclusive
fishing limits of the British Islands as defined
by Article II." of the schedule — namely, at a
point within three miles of the line drawn
across a certain bay, — Held, that the accused,
not being the subject of a signatory nation,
was not bound by the provisions of the con-
vention, and that, accordingly, as the locus
of the offence was defined in the complaint by
reference to these provisions, the complaint
was bad, and the conviction must be quashed.
Jejisen v. IFiVson, [1912] S. C. (J.) S— Ct. of
Just.
Powers of Sea Fishery Officer — Power to
"take" Offending Trawler to Nearest Port —
Trawler Ordered to "go" to Nearest Port.]
— A sea fishery ofi&cer, who had reasonable
grounds for believing that he had detected a
trawler fishing within the three mile limit,
ordered the captain to go with his vessel to C,
which was the nearest and most convenient
port. At the time the sea was too rough to
permit of a boat being sent to the trawler to
put any one on board : — Held, that the order
to go to C. was a lawful order, although the
only express authority given by section 12 of
the Sea Fisheries Act. 1883, was authority to
" take " the offender to port, and that the
master of the trawler by refusing to comply
was guilty of a contravention of section 14,
sub-section 2 of the Act. Seinble. the order
would have been lawful even if the weather
had permitted of a boat being sent to the
trawler. Held, further, that, as the officer
had reasonable grounds for believing that the
master had been trawling within the three-
mile limit, the lawfulness of the order was
not affected by the fact that the charge against
the master was subsequently found to be not
proved. Gordon v. Hanson', [1914] S. C. (J.)
131_Ct. of .Tu.st.
Trawling — Prohibition — By-law — Yali-
dity.] — Tender the Sea Fisheries Regulation
Act, 1888, s. 2, the Devon local committee
made a by-law which prohibited trawling
within a certain area. The by-law was made
for the protection of a crab fishery : — Held,
that the by-law was not ultra vires. Friend
V. Brehout, 111 L. T. 832; 79 J. P. 25;
58 S. J. 741; 30 T. L. R. 587— D.
3. Private Fisheries.
See also Vol. VII. 91, 1667.
Unlimited Commercial Right of Fishing in
Alieno Solo — Freeholders of Manor — Presump-
tion of Charter,] — An unlimited commercial
right of fishing in alieno solo cannot pass aa
appurtenant to a freehold, and in the absence
of evidence a grant to a corporation cannot
be presumed from the assertion and exercise
of such an alleged right, for however long a
period, by individual freeholders. Harris v.
Chesterfield (Earl), 80 L. J. Ch. 626; [1911]
A.C. 623; 105 L. T. 453; 55 S. J. 686;
27 T. L. R. 548— H.L. (E.)
Canal — Reservation to Landowners of Bight
to Fish— Right to Fish from Towing Path-
Appurtenant or in Gross — General Words in
Conveyance — Lease of Fishery to Angling
Club — Estoppel.] — By a canal Act it was
provided that the owners of land through which
the canal was made should be entitled to a
right of fishery in the canal, but so that the
towing path should not be thereby prejudiced
or obstructed. Part of the land was in 1845
conveyed without any mention of the fishery
to a purchaser who leased the fishery to an
angling club of which the defendant was a
member : — Held, that the right to fish carried
with it the right to use the towing path, but
that the fishery was a right in gross and did
not pass under the general words in the
conveyance of 1845, and therefore the defen-
dant had no right to use the towing path.
Chesterfield (Earl) v. Harris (77 L. J. Ch. 688 ;
[1908] 2 Ch. 397) applied. Staffordshire and
Worcestershire Canal Navigation v. Bradley,
81 L. J. Ch. 147 ; [1912] 1 Ch. 91 ; 106 L. T.
215; 56 S. J. 91— Eve, J.
Disturbance of — Penalties — Action for
Damages.] — The lessee of a dwelling house
and premises and of certain rights of fishing
attached to the demised premises sued the
occupiers of a mill on the stream in which the
fishing rights were enjoyed in respect of certain
acts which the plaintiff alleged obstructed the
free passage of salmon to and from the sea
and destroyed large numbers of young fish.
An objection was taken that an action for
damages for the injury to the fishery and for
an injunction restraining the continuance or
repetition of the acts complained of would not
lie in view of the penalties imposed by the
Salmon Fishery Acts : — Held (Kennedy, L.J.,
dubitante), that the Legislature had provided
means for enforcing the prohibitions in the
Acts, and that was the proper mode to deal
with such a case as the present ; and that,
although an illegal act causing special and
peculiar damage to the property of another
person might justify an action to abate the
mischief, it could not be said that any and
593
FISH AND FISHERIES— FIXTUKES.
594
every person having fishery rights in the river
in question could maintain an action against
the mill owners, but some special and definite
damage clearly attributable to the illegal act
must be established. Stevens v. Chown
(70 L. J. Ch. 571 ; 1901] 1 Ch. 894) approved.
Fraser v. Fear, 107 L. T. 423; 57 S. J. 29
— C.A.
Held, also (Farwell, L.J., dissentiente), that
the plaintiff had failed in proving that any
property right had been substantially interfered
with. lb.
4. Salmon Fishery.
See also Vol. VII. 103, 1670.
Device for Catching — Device for Catching
Fish Placed on Apron of Weir.] — Sluice gates
or hatches extended over the entire width of a
salmon river, which were raised or lowered
from a platform above. When lowered the
passage of the water was entirely barred, and
it flowed off elsewhere. When a hatch was
opened the water dropped down sloping
masonry and then up and along a wooden
platform, the entrance to which rested on the
slope at two points, which led to a trap for
taking eels. The water flowed into culverts
with hard, smooth flat bottoms, and thence into
a pool below : — Held (Rowlatt, J., dubitante) ,
that the above structure was a weir and the
aprons of the hatches were the apron of the
weir, and that the wooden platform was a
device for taking fish placed upon the apron
of a weir within section 15 of the Salmon
Fishery Act, 1873. Spent or injured salmon
had at times been found in the trap : — Held,
that it was a device for catching salmon within
the meaning of section 36 of the Salmon
Fishery Act (1861) Amendment Act, 1865,
although intended only to catch eels. Lyne
V. Leonard (37 L. J. M.C. 55; L. R. 3 Q.B.
156) followed. Maio v. HoUoway. 84 L. J.
K.B. 99; [1914] 3 K.B. 594; 111 L. T. 670;
78 J. P. 347— D.
Drift Net — " Fixed engines " — Nuisance at
Common Law J, — The use of drift nets in a
tidal channel for the capture of salmon by
night from boats which are not moored or
anchored, the nets moving with the tide and
the salmon becoming enmeshed in the nets,
is not illegal, such nets being licensed under
the Irish Fishery Acts and regulated in many
districts by by-laws under those Acts. Such
nets are not an obstruction to the free passage
of fish, and are not a nuisance at common law
as " fixed engines " prohibited by the Acts.
Irish Society v. Harold, 81 L. j'. P.O. 162;
ri912] A.C. 287: 106 L. T. 130; 28 T. L. B.
204--H.Ti. (Ir.)
Wedderburn v. Atholl (Duke) ([1900] A.C.
403) distinguisilied as being an exclusively
Scottish decision, inapplicable to Ireland. lb.
Decision of the Court of Appeal in Ireland.
sub nom. Irish Society v. Fleming ([1911]
1 Ir. R. .323). affirmed.' Ih.
Using Net without Licence — Net not
Actually Put into Water.] — In order to con-
stitute the off(>nc<" (if " using " a net for catch-
ing salmon witliout having a proper licence
under section 36 of the Salmon Fishery Act,
1865, it is not necessary that the net should
have been actually put into the water. If the
Justices are of opinion that the person charged
was on the river for the purpose of catching
salmon, and had the net with him for that
purpose, it is sufficient to justify them in con-
victing him under the section. Moses v.
Raywood, 80 L. J. K.B. 823; [1911] 2 K.B.
271; 105 L. T. 76; 75 J. P. 263; 22 Cox C.C.
516— D.
Pollution — Private Owner's Tank Waggon —
Leakage of Creosote — " Causing " Creosote to
Flow into Stream.] — By section 5 of the
Salmon Fishery Act, 1861, " Every person who
causes or knowingly permits to flow, or puts
or knowingly permits to be put, into any
waters containing salmon, or into any tribu-
taries thereof, any liquid or solid matter to
such an extent as to cause the waters to poison
or kill fish, shall incur " certain penalties.
Whilst a tank waggon, belonging to a private
owner, which contained creosote, was travelling
on the respondents' railway, the creosote,
owing to a defective tap, leaked from the
waggon through the permanent way into a
stream which was a tributary of a salmon
river, and killed fish. The waggon shewed no
defect on examination before the train started,
and there was no neglect or default on the
part of the respondents : — Held, that the
respondents had not " caused " the creosote to
flow into the stream within the meaning of
section 5 of the Act. Moses v. Midland Rail-
way, 84 L. J. K.B. 2181; 113 L. T. 451;
79 J. P. 367 ; 31 T. L. E. 440— D.
FIXTURES.
See also Vol. VII. 119, 1673.
Carvings — Settlement — Sale under Settled
Land Acts — Will — Construction — " Pictures
and other works of art or curiosity " — Legatee
and Devisees in Remainder. 1 — A testator
devised his mansion house in strict settlement,
and bequeathed to the first life tenant (subject
to a bequest of certain personalty upon trusts
to follow the settled estate) all his " pictures
and other works of art or curiosity " abso-
lutely. The house contained certain carvings
in wood fixed to the walls by nails, screws,
or pegs, serving as overmantels or as frames
to pictures, which had been in the house, and
(with a few exceptions) in their original
positions, even since it was rebuilt about two
hundred years before. The first tenant for
life sold one of these pieces of carving, and
claimed the proceeds of sale under the bequest
to him. On a summons by the trustees of
the settlement, — Held, that the carvings were
fixtures and formed part of the mansion house,
and that they were not included in the bequest,
and that the proceeds of sale were capital
money subject to the settlement. Chesterfield's
(Lord) Settled Estates. In re, 80 L. J. Ch.
186: [1911] 1 Ch. 237; 103 L. T. 833—
Joyce, J.
595
FIXTUEES— FEAUD AND MISEEPEESENTATION.
596
Covenant by Tenant to Complete Fittings to
Shop — Covenant to Deliver up Demised
Premises in Good Repair — Tenant's Right to
Remove Trade Fixtures Affixed in Pursuance
of Covenant." — By the lease of an unfinished
shop the lessees covenanted at their own
expense to "' complete and finish ... all
necessary fittings for the carrying on of the
trade of a provision merchant," and also to
deliver up the demised premises in good repair
at the end of the term. In pursuance of their
covenant the lessees affixed certain fittings to
the premises which became " trade fixtures,"
and they removed them shortly before the end
of the term : — Held (Yaughan Williams, L.J.,
dissenting), that the covenant in the lease did
not take away the right of the lessees during
the term to remove the fittings as trade
fixtures. Moicats v. Hudson, 105 L. T. 400
— C.A.
Larceny — Tenancy Agreement Entered into
with Intention to Steal Fixtures."! — Where a
person enters into an agreement for the lease
of a house with the fraudulent intention of
stealing the fixtures on getting into possession,
and where in fact he steals the fixtures on
entering into possession, he is guilty of larceny
under section 31 of the Larcenv Act. 1861.
Rex V. Munday (2 Leach C.C. 991) followed.
Rex V. Richards. 80 L. J. K.B. 174: [1911]
1 K.B. 260: 104 L. T. 48; 75 J. P. 144;
22 Cox C.C. 372— CCA.
FOOD.
See LOCAL GOVERNMENT;
METROPOLIS.
FOREIGN JUDGMENT.
See INTERNATIONAL LAW.
FORESHORE.
See SEA AND SEASHORE.
FORGERY.
See CRIMINAL LAW.
FRANCHISE.
See ELECTION LAW.
FRAUD AND MIS-
REPRESENTATION.
See also Vol. VII. 159, 1679.
Action of Deceit — False Statements to
Parties other than the Plaintiff — Plaintiff
Acting on False Statement to his Detriment —
Intention of Defendant to Induce Persons to
Sell Shares — Direction to Jury.] — -The appel-
lant brought an action of deceit against the
respondent for damages for causing the
appellant to sell certain shares in a company
at an undervalue. The respondent, under
pressure and not of his own motion, had made
an untrue statement to a third party, a broker,
and subsequently voluntarily to other parties,
with the effect of depressing the shares in the
market to the detriment of the appellant,
who had acted on such statement. At the
trial, the Judge directed the jury that to
render the respondent liable they must find
that there must have been a direct intention
on his part that people should be induced to
sell shares, and that he must have had the
intention when he made his statement of
making people sell. The jury having absolved
the respondent from fraud, — Held, that there
had been no misdirection on the part of the
Judge, and therefore no ground for granting
a new trial. Tackey v. McBain, 81 L. J.
P.C 130; [1912] A.C 186; 106 L. T. 226
— P.C
Misrepresentation without Fraud — Confi-
dential Relation — Solicitor and Client —
Negligence.] — Nothing short of proof of a
fraudulent intention in the strict sense will
suffice to maintain an action of deceit, but an
action for damages for negligence may lie,
without evidence of an actual intention to
deceive, where a confidential relationship
exists, such as that of solicitor and client, so
that the person to whom a representation was
made was entitled to rely, and did in fact rely,
upon it, and sustained damage in consequence.
The necessity of proving moral fraud in order
to succeed in an action of deceit has not
narrowed the scope of this remedy. Derry v.
Peek (58 L. J. Ch. 864; 14 App. Cas. 337)
discussed and explained. Nocton v. Ashburton
(Lord), 83 L. J. Ch. 784; [1914] A.C. 932;
111 L. T. 641; 30 T. L. R. 602— H.L. (E.)
Letting of House — Untrue Representation by
Defendant Made to Landlord's Agents as to
Character of Tenant — Knowledge of Agents as
to Tenant's Character — Notice to Landlord —
Reliance by Landlord on Representation.] —
Where a defendant has made a statement
untrue to his knowledge to induce another,
whom he does not believe to know its untruth,
to act upon it, and that other has acted upon
it in ignorance and to his damage, the maker
of the false representation cannot protect him-
self by proving that the agent of the other
knew of the untruth. Wells v. Smith, 83 L. J.
K.B. 1614; [1914] 3 K.B. 722; 111 L. T. 809;
30 T. L. R. 623— Scrutton, J.
The knowledge of an agent, not acquired in
the course of his employment for the principal,
cannot be imputed to the principal. 7b.
597
FRAUD— FKAUDULENT CONVEYANCE.
598
Sale of Bonds — Rescission — Innocent Mis-
representation.]— Bonds of a Dutch company,
having property in America, were purchased
on the faith of a representation that they were
a charge on the property. They were not in
fact a charge on the property, but the repre-
sentation was made innocently : — Held, that
the sale would not be set aside. Seddon v.
North-Eastern Salt Co. (74 L. J. Ch. 199;
[1905] 1 Ch. 326) followed. Lecky v. Walter,
[1914] 1 Tr. R. 378— M.R.
FRAUDS, STATUTE OF.
See CONTEACT ; TEUST AND TEUSTEE.
FRAUDULENT
CONVEYANCE.
Ante-nuptial Settlement — Intent to Defeat
or Delay Creditors — Inference of Intent —
Interest to Daughter by Previous Marriage.]
— A voluntary settlement may be declared void,
as against the settlor's trustee in bankruptcy,
without proof of actual intention to defeat or
delay creditors if the circumstances of the
particular case be such that the settlement
must necessarily have that effect. A settle-
ment by a widower on re-marriage is voluntary
as regards a daughter by a previous marriage
interested therein. Freemayi v. Pope (39 L. J.
Ch. 689; L. E. 5 Ch. 538) followed. Carru-
thers V. Peake. 55 S. J. 291 — Warrington, J.
Intention to Defeat and Delay Creditors —
13 Eliz. c. 5.] — A deed of assignment made in
good faith by a debtor in favour of his creditor
's not rendered invalid under the statute
13 Eliz. c. 5, by reason of its being made
with the express intention of defeating some
other particular creditor or creditors of the
assignor. Glegg v. Bromley, 81 L. J. K.B.
1081; 106 L. T. 825— C. A.
A wife who was in debt to her husband for
a large advance executed a deed of assignment
by which she assigned to him the sum of money
to which she might become entitled by virtue
of a pending action of slander in which she was
plaintiff. Her husband then made her a further
advance to enable her to prosecute the action.
The wife subsequently recovered a verdict in
the action for damages. A judgment creditor
of the wife thereupon served a garnishee order
nisi attaching the damages which she had
recovered : — field, that the deed of assignment
was not invalid either for want of consideration
or as savouring of champerty, or under the
statute 13 Eliz. c. 5, and that the husband, as
assignee imder the deed, was entitled to the
damages recovered by the wife as against the
execution creditor. Th.
Post-nuptial Settlement — Recital of Ante-
nuptial Agreement — Intention to Defeat or
Delay Creditors.] — A recital in a post-nuptial
deed of settlement that the settlement is made
in pursuance of a parol ante-nuptial agreement
is a memorandum in writing sufficient to
satisfy the Statute of Frauds ; but it does not
dispense with the necessity of proving that the
recited ante-nuptial agreement was actually
made. Validity of a post-nuptial setlement
under 13 Eliz. c. 5, and section 47 of the Bank-
ruptcy Act, 1883, considered. Gillespie, In re;
Knapman v. Gillespie, 20 Manson, 311 —
Horridge, J.
Judgment against Partner — Transfer of
Business to Company — Consideration — Shares
and Debentures — Notice to Company — Setting
Aside.] — On November 27, 1907, an injunction
was granted, at the suit of H. & Co., who were
former partners of G. , restraining G. from
manufacturing under a certain patent in
breach of an agreement. G. was then in
partnership with J., in a business of the same
character. On November 29, 1907, G. and J.
entered into an agreement to sell to a com-
pany, which was formed for the purpose, the
goodwill of their business, and all their
interest in the business, and all the assets to
which they were entitled in relation to it.
The consideration for the sale was 1,050L,
paid by allotting to G. and J. 793 fully paid
ordinary shares of 1/. each in the company,
paying them 11. in cash, and issuing two
debentures for 125L each to their nominees.
The nominal capital of the company was
8(X)L, in 800 IZ. ordinary shares. The same
solicitor acted in the promotion of the com-
pany and for J. in reference to the transaction.
J. was by the agreement to be first managing
director of the company, at a minimum salary
of 150Z. per annum. In September, 1908, G.
was adjudicated a bankrupt. H. & Co. were
the principal creditors : — Held, that the com-
pany had notice of the character of the
transaction ; that an object of the formation of
the company, and of the assignment to it of
the property of the partnership under the
agreement, was to defeat and delay the credi-
tors of G., as well as to avoid the consequences
of the injunction granted against him ; and
that the transaction must be set aside as
fraudulent and void under 13 Eliz. c. 5.
Gonville's Trustee v. Patent Caramel Co.,
81 L. J. K.B. 291; [1912] 1 K.B. 599;
105 L. T. 831: 19 Manson, 37— Phillimore, J.
Whether Conveyance a Fraud on Creditors —
Existing Creditors Paid off— Future Creditor.]
— In the absence of any express intention to
defraud, a voluntary deed will not be set aside
at the instance of a creditor whose debt comes
into existence after its date, if all creditors
existing at the date of the deed have been paid
off. Kelleher, In re, [1911] 2 Ir. E. 1— C.A.
Voluntary Conveyance — Subsequent Pur-
chaser for Value — Onus of Proving that
Conveyance was made Bona Fide.l — Where a
voluntary conveyance of lands is impeached
by a subsequent purchaser for value, the onus
of proving that such conveyance was made
bona fide and without fraudulent intent, so as
to luring it within the protection of section 2
of the Voiuntarv Conveyances Act, 1893, lies
599
FEAUDULENT CONVEYANCE— FRIENDLY SOCIETY.
600
on the party seeking to uphold such voluntary
conveyance — National Bank v. Behan, [1913]
1 Ir. E. 512— M.R.
FRAUDULENT
PREFERENCE.
See BANKEUPTCY.
FREIGHT.
See SHIPPING.
FRIENDLY SOCIETY.
A. Societies withix the Acts, 599.
B. Rules, 599.
C. Rights and Liabilities of Members, 602.
D. Arbitr.-vtioxs, 603.
E. Actions by Friendly Society, 604.
F. Jurisdiction of the County Court, 604.
G. Dissolution, 604.
H. Building Societies. 5ee Building Society.
I. Industrial Provident Societies. See
Industrial Society.
A. SOCIETIES WITHIN THE ACTS.
See also Vol. VII. 433, 1691.
Enlargement of Objects — Special Resolution
— Memorandum of Association — Parties to
Proceedings.] — A friendly society registered
under the Friendly Societies Act, 1896, passed
a special resolution under section 71 to
convert itself into a limited company having a
memorandum of association with enlarged
objects, so that, according to the decision of
the Court in Blythe v. Bhtley (79 L. J. Ch.
315; [1910] 1 Ch. 228) the resolution was
invalid. On July 31, 1908, the Registrar of
Joint- Stock Companies issued a certificate of
Incorporation of the company. In 1910 the,
plaintiff, suing on behalf of himself and all
other shareholders of the company, moved for
an injunction to restrain the company from
carrying out any of the powers stated in the
memorandum of association which were in
excess of the powers possessed by a friendly
society : — Held, that whatever relief the plain-
tiff might be entitled to in properly constituted
proceedings, he could not while suing as a
member of the company claim to restrain the
company from carrying on any of the objects
stated in its memorandum of association, and
that the injunction must therefore be refused.
McGlade v. Pioyal London Mutual Insurance
Society, 79 L. J. Ch. 631; [1910] 2 Ch. 169;
103 L. T. 155; 17 Manson, 358; 54 S. J. 505;
26 T. L. R. 471— C. A.
Conversion into Limited Company —
Members — Yalidity of Special Resolution.] —
It was decided to convert a friendly society
registered under the Friendly Societies Act,
1896, into a limited company under section 71
of the Act, and this was effected in 1913 by
special resolution. No names were subscribed
to the memorandum of association, and no
shares had been allotted to any persons. In
1914 the company purported to pass and con-
firm a special resolution, by which the objects
clause of the memorandum was altered and
extended : — Held, that upon the conversion of
a friendly society, under section 71 of the
Friendly Societies Act, 1896, into a limited
company, the members of the society are not
simultaneously converted into members of the
company ; that at the date of the resolution of
1914 no persons had so far agreed to become
members of the company, and that the resolu-
tion was not effectively passed. Blackburn
Philanthropic Assurance Co., In re, 84 L. J.
Ch. 145: [1914] 2 Ch. 480; 21 Manson, 342;
58 S. J. 798— Eve, J.
Consent of Members.] — By the rules of
a registered friendly society it was provided
that meetings for the " management of the
society " should consist of " delegates " elected
by the members : — Held, that a resolution for
the conversion of the society into a limited
company, in terms of section 71 of the Friendly
Societies Act, 1896, passed by a general meet-
ing of " delegates," was ultra vires, in respect
that under that Act a resolution for conversion
could only be carried by a certain majority
of the members of the society at a general
meeting of members, and that that requirement
was not affected by the rule of the society
providing that meetings should consist of
"delegates." Wilkinson v. City of Glasgow
Friendly Society, [1911] S. C. 476— Ct. of
Sess.
Payment of Pensions Ultra Yires the Rules
— Society which "exists for an illegal pur-
pose"— Cancellation of Registry of Society.]
—The Friendly Societies Act, 1896, s. 77,
provides that upon proof " that a society exists
for an illegal purpose " the Chief Registrar
may cancel the registry of the society : — Held,
first, that the time to be considered in deter-
mining whether a society is one which exists
for an illegal purpose is the date on which
the order is made cancelling the registry.
Secondly, that the illegal purpose must be one
which exists independently of the rules, and
the mere fact that payments are made by the
society which are ultra vires the rules does not
make the society one which exists for an illegal
purpose within the meaning of section 77 of
the Act. Middle Age Pension Friendly Society,
In re, 84 L. J. K.B. 378; [1915] 1 K.B. 432;
112 L. T. 641— D.
60]
FEIENDLY SOCIETY.
602
B. EULES.
See also Vol. VII. 435, 1693.
Effect of Alteration of Rules.] — An action
was brought by the phiiiitiff, the widow of
a member of a friendly society, against the
defendant, who was the statutory officer of
the society, to recover a benefit to which she
claimed to be entitled under the rules.
Kule 20 of the society's rules of 1908 provided
that disputes between members or persons
claiming through or on account of a member
and the society should be decided by arbi-
tration, and prescribed certain formalities to
be observed. It further provided that each
dispute should be decided by three arbitra-
tors, the first elected by the claimant, the
second by the society, and the third to be
a County Court Judge or other person agreed
on by the parties, who should act as umpire.
The Friendly Societies Act, 1896, s. 68.
sub-s. 6, provides that " Where the rules [of
a friendly society] contain no direction as to
disputes, or where no decision is made on a
dispute within forty days after the applica-
tion to the society . . . for a reference under
its rules, the member or person aggrieved may
apply either to the County Court or to a
court of summary jurisdiction, and the court
to which application is so made may hear
and determine the matter in dispute." On
March 11. 1910, the plaintiff applied for
benefit under the rules. On April 2 the
society passed a resolution refusing the plain-
tiff's application as being contrary to rule.
On April 18 the plaintiff made an application
for arbitration under the rules. This was
assented to by the society, but the parties
were unable to agree as to an umpire, and,
after the expiration of forty days, the plain-
tiff in January, 1911, commenced proceedings
in the County Court by virtue of section 68,
sub-section 6 of the Friendly Societies Act.
1896. In September, 1910, the society had
amended its rules, and by rule 20 as so
amended it was provided that disputes should
in the first instance be referred to the general
committee, from whose decision there should
be an appeal to an appeal committee. It was
contended before the learned Judge that, the
plaintiff not having complied with these regu-
lations, he had no jurisdiction to entertain the
action. To this contention he gave effect and
declined to hear the case : — Held, that the
learned .Judge was wrong, and that the altera-
tion in the rule could not affect the right of
the plaintiff, which had become vested, to go
to the County Court, and that the learned
Judge accordinglv had jurisdiction to try the
case. Ritson v. Dobson. 104 L. T. 80^— D.
Alteration — Calendar Month's Notice —
Whether Lunar Month Sufficient — Resolution
— Invalidity.] — The plaintiff was a memlier of
a branch of a friendly society, and by the
rules of 1906 he was entitled to certain
benefits. The rules provided that before they
could be altered a calendar month's notice
must be given by the central committee to
the local meeting. In 1914 a lunar month's
notice of a proposed alteration, which would
have prevented the plaintiff from being entitled
to the benefits in question, was given by the
central committee to the local meeting, and
resolutions were passed purporting to alter
the rules and the tables of payments. In an
action by the plaintiff for a declaration that
he was entitled to the benefits fixed by the
rules of 1906, — Held, that as a calendar
month's notice was required by the rules, a
lunar month's notice, even if reasonable, was
insufficient, but on the facts with regard to
the adoption of the new tables of payments
the resolution was bad, and that therefore the
plaintiff was entitled to the benefits in ques-
tion. Orton V. Bristow, 32 T. L. R. 129—
Sargant, J.
Transfer of Sura to Pension Fund — Validity.]
— The transfer by a friendly society of 50,00OL
out of its actuarial surplus to the fund for
providing pensions on retirement for those en-
gaged in the active service of the society, —
Held, not to be ultra vires of the societv.
Kirsopp V. Highton, 56 S. J. 750; 28 T. L. R.
493— C.A.
No Power to Resolve to Wind up
■Voluntarily — Alteration of Rules — Evidence of
Acquiescence Necessary for Alteration — Ultra
Yires.] — Where by its original rules a friendly
society was unable to pass a resolution for a
voluntary winding-up, but where at a subse-
quent meeting it was purported by the
unanimous vote of those present to create a
new rule that a resolution for voluntary
winding-up could be carried if passed by a
majority of two-thirds, and where subse-
quently such a resolution was passed by such
a majority under the alleged new rule, — Held,
that in the absence of evidence that the new
rule was ratified by the acquiescence of all
the members of the society, such new rule
was ultra vires, and an order for compulsory
winding-up was accordingly made. Tean
Friendly Society, In re, 58 S. J. 234—
Astbury, J.
C. RIGHTS AND LIABILITIES OF
MEMBERS.
See also Vol. VII. 441, 1694.
Action to Enforce Decision of Society.] —
A member of a friendly society, who had been
expelled by decree of his lodge and had had
that decree reversed on appeal by a superior
court of the society, brought an action in the
Sheriff Court for declarator that he was a
member of the society and entitled to certain
benefits : — Held, that the action was com-
petent, and decree of declarator and payment
granted. Gall v. Loyal Glenhogie Lodge of
the Oddfelloios Friendly Society (2 Eraser,
1187) distinguished. Collins v. Barrowfield
Vnited Oddfellows, [1915] S. C. 190— Ct. of
Sess.
Misapplication of Property — Time for Taking
Proceedings.! — By section 87, sub-section 3 of
the Friendly Societies Act, 1896, if any person
wilfully applies any property of the society to
purposes other than those expressed or
directed by the rules, he is liable on com-
plaint to be summarily convicted and fined,
and ordered to deliver up such property or to
603
FKIENDLY SOCIETY
604
repay sums of money applied improperly. By
section 9 of the Friendly Societies Act, 1908,
where, on such a complaint, it is not proved
that he acted with any fraudulent intent, he
may be ordered to repay any sum of money
applied improperly, hut shall not be liable to
conviction, and the order is to be enforceable
as an order for the payment of a civil debt : —
Held, that the period of six months imposed
by section 11 of the Summary Jurisdiction
Act, 1848, wuthin which a complaint or infor-
mation must be made or laid applies to sum-
mary proceedings for an order for repayment
of a sum of money under the Friendly
Societies Act, 1896, vphich was misapplied
more than six months before the laying of the
information. Mackie v. Fox, 105 L. T. 523;
75 J. P. 470; 22 Cox C.C. 610— D.
Rights under Rules.
B (supra).
- See cases under
D. ARBITEATIONS.
See also Vol. VII. 450, 1696.
Rule for Settlement of Disputes by
Arbitration — Election of Member to Board of
Management Contrary to Rule — Competency
of Action for Declaration that Election Void.]
— In an action by a member of a friendly
society against the society for a declaration
that the appointment of another member to
the board of management was void in respect
that under the rules of the society he was
ineligible for election, it was pleaded by the
defendants that the action was excluded by a
rule of the society that " all disputes between
the society and any member as such . . . may
be determined by arbitration." The rule was
passed under the Friendly Societies Act, 1896,
which provides that every dispute between a
member and the society shall be decided in
manner directed by the rules of the society
" without appeal, and shall not be removable
into any Court of law ..." : — Held, that the
action was competent in respect that the juris-
diction of the Court was not excluded in a
case where the averment was that the society
had acted in violation of its rules and con-
stitution. M'Goivan v. City of Glasgow
Friendly Society, [1913] S. C. 991— Ct. of
Sess.
Queer e (per Lord Salvesen), whether the
society's rule as to the settlement of disputes
was in effect imperative, though in form merely
permissive. lb.
Case Stated — Competency of Stated Case
after Judgment in Inferior Court.] — Under
section 68, sub-section 7 of the Friendly
Societies Act, 1876 (which provides that the
Court or arbitrator to whom any dispute is
referred under the rules of a friendly society
may state a Case for the opinion of the Court),
a Case must be stated during the progress of
the reference, and cannot be stated after the
Court or arbitrator has given judgment.
Smith V. Scottish Legal Life Assurance
Society, [1912] S. C. 611— Ct. of Sess.
E. ACTIONS BY FRIENDLY SOCIETY.
See also Vol. VIL 452, 1697.
Against Registered Branch.] — An action
can be maintained b}- the trustees of a friendly
society against the trustees, secretary, and
treasurer of a registered branch in respect of
their breach of trust in applying the funds of
the branch in a manner not authorised by the
rules of the society; for, in such a case, the
trustees, secretary, and treasurer of the branch
are not sued as members, but in the character
of persons standing in a fiduciary relationship,
and the provision of section 68 of the Friendly
Societies Act, 1896, that a dispute between
" an officer of " a " registered branch and the
society of which that registered branch is a
branch shall be decided in manner directed
by the rules," does not apply. Winter v.
Wilkinson, 84 L. J. Ch. 237; [1915] 1 Ch.
317 ; 112 L. T. 482 ; 79 J. P. 241 ; 13 L. G. R.
425 ; 31 T. L. E. 121— C. A.
F. JURISDICTION OF THE COUNTY
COURT.
See Ritson v. Dobson, ante, col. 601.
G. DISSOLUTION.
Unregistered Friendly Society — Unex-
pended Funds.] — A society was established
by a canal company for the benefit of its
boatmen and workmen. Each member contri-
buted a weekly sum, which was supplemented
by a weekly contribution from the company.
The society was not registered. The manage-
ment of the society was entrusted to a com-
mittee, which consisted of three elected
members and three officials of the company.
This committee was given the regulation of
the affairs of the society, and the power to
frame or amend the rules when requisite.
The contributions to the funds were lodged
to the credit of the society and the company
was trustee for it. The funds of the society
were applied, pursuant to the rules, in pay-
ment of sick and mortality benefits to
members and their families. When the
National Insurance Act, 1911, came into force
it was found impossible to carry on the busi-
ness of the society, and it was resolved to
wind it up, and an action for that purpose
was brought on behalf of the members against
the committee of the company, the Attorney-
General being afterwards made a party. The
unexpended funds amounted to 1,170L : —
Held, first, that the society was not a charity
to which the doctrine of cy-prds could be
applied, neither was the Crown entitled to the
funds as bona vacantia; secondly, that the
contributions of the company were absolute
gifts to the society, and that there was no
resulting trust in favour of the company ; and
thirdly, that the funds were the property of
the society, and were divisible amongst the
existing members at the time when the busi-
ness of the society ceased to be carried on, in
proportion to the amounts contributed by
them. Cunnack v. Edwards (65 L. J. Ch.
801; [1896] 2 Ch. 679) distinguished.
Printers and Transferors' Amalgamated
605
FEIENDLY SOCIETY— GAMING AND WAGEEING.
6(X)
Trades Protection Society, In re (68 L. J.
Ch. 637; [1899] 2 Ch. 184), considered.
Tierney v. Tough, [1914] 1 Ir. R. 142— M.R.
FUGITIVE OFFENDER.
See EXTRADITION.
GAMBLING.
See GAMING AND WAGERING.
GAME.
See also Vol. VII. 466, 1699.
Ground Game — Setting Spring Traps in
Open — Person Authorised by Owner and
Occupier of Land.] — The prohibition in the
Ground Game Act, 1880, against laying
spring traps, except in rabbit holes, for killing
ground game, does not extend to a person
who is duly authorised by the owner and
occupier of land to take the ground game on
his land. Authorisation by deed is not
essential for this purpose. Letvorthy v. Rees,
109 L. T. 244; 77 J. P. 268; 23 Cox C.C. 522;
29 T. L. R. 408— D.
Trespass in Pursuit of Game — Sending Dog
on Land in Pursuit of Game — "Entering or
being " upon Land.] — The words " entering or
being " upon land in " search or pursuit of
game " in section 30 of the Game Act, 1831,
mean entering or being on such land person-
ally ; and a person who sends his dog on to
such land in search or pursuit of game, and
shoots game put up by such dog, cannot be
convicted under that section of trespassing in
pursuit of game. Dicta in Reg. v. Pratt
(24 L. J. M.C. 113; 4 E. & B. 860) followed.
Pratt V. Martin, 80 L. J. K.B. 711; [1911]
2 K.B. 90; 105 L. T. 49; 75 J. P. 328;
22 Cox C.C. 442; 27 T. L. R. 377— D.
Retrieving Dead or Wounded Game.] —
A rabbit after being shot on the public road
ran into private ground, and there fell dead
or moribund. The shooter thereupon sent his
dog into the private ground to retrieve it : — -
Held, that he did not thereby commit a tres-
pass " in search or pursuit of " game within
the meaning of section 1 of the Game
(Scotland) Act, 1832 [corresponding to
section 30 of the Game Act, 1831]. Nicoll v.
Strachan, [1913] S. C. (J.) 18— Ct. of Just.
Alleged Permission — Bona Fide Belief
— Reasonable Grounds — Poaching.] — On a
summons under section 2 of the Poaching
Prevention Act, 1862, for obtaining game by
unlawfully going on land in search or pursuit
of game, it is a good defence to prove that
the defendant had a bona fide belief that he
had permission to go on the land, together
with reasonable grounds for that belief.
Dickinson v. Ead, 111 L. T. 378; 78 J. P.
326; 24 Cox C.C. 308; 30 T. L. R. 496— D.
Tame Pheasants Bought for Breeding Pur-
poses— Seller and Purchaser not Licensed to
Deal in Game — Liability of Purchaser to
Penalty.] — The word "game" in section 27
of the Game Act, 1831, applies to live as well
as to dead game ; it applies also to game which
has never been wild — for example, to
pheasants reared in captivity and kept for
breeding purposes. If, therefore, a person
who is not licensed to deal in game purchases
tame pheasants for breeding purposes from a
person not licensed to deal in game he com-
mits an offence against section 27 of the Act.
Harnett v. Miles (48 J. P. 455) and Loome
V. Baily (30 L. J. M.C. 31; 3 E. & E. 444)
followed. Cook v. Trevener, 80 L. J. K.B.
118; [1911] 1 K.B. 9; 103 L. T. 725; 74 J. P.
469; 27 T. L. R. 8— D.
Dealing in Game without a Licence — Time
within which Proceedings to be Taken.] — The
limitation of time for proceedings against a
person for dealing in game without a licence
in contravention of the Game Licences Act,
1860, is that prescribed by section 3 of the
Excise Act, 1848 — namely, six months, and
not three months as prescribed by section 41
of the Game Act, 1831. M' Lean v. Johnston,
[1913] S. C. (J.) 1— Ct. of Just.
Unlawful Possession of Eggs — Evidence. ] —
The appellant having been summoned for
being in possession of game eggs unlawfully
obtained, evidence was given on behalf of the
prosecution that a constable, having seen the
appellant in the month of May under circum-
stances of suspicion with other men, searched
the appellant's cart and found a large number
of game eggs which the appellant stated came
off his own farm. No evidence was called on
behalf of the appellant : — Held, that the
appellant was rightly convicted of an offence
within section 2 of the Poaching Prevention
Act, 1862. Stoive v. Marjoram, 101 L. T.
569; 73 J. P. 498; 22 Cox C.C. 198— D.
GAMING AND
WAGERING.
A. Lawful and Unlawful Games, 607.
B. Waoers. 609.
C. Races, 613.
D. Statutory Offences.
1. Lotterii, 613.
2. .Advertisements of Gaming and
Betting, 615.
607
GAMING AND WAGEEING.
608
3. Sending Money-lending Circulars to
Infants, 615.
4. Keeping a Place for Betting and ,
Gaming, 616. J
5. Betting in a Public Place, 619. j
E. Betting on Licensed Premises — See 1
Intoxicating Liquors. j
A. LAWFUL AND UNLAWFUL I
GAMES. [
See also Vol. VII. 494, 1704. j
Game Played in Refreshment House —
"Whether "unlawful game" — Question of '
Fact.] — Section 32 of the Refreshment Houses j
Act, 1860, provides that "Every person |
licensed to keep a refreshment house under |
this Act who shall . . . knowingly suffer any \
unlawful games or gaming therein . . . shall,
upon conviction thereof . . ." be liable to a
penalty. Whether a game is or is not a game
of chance, and, consequently, an unlawful
game within the meaning of this section, is a
question of fact to be decided in each particular
case. Bracchi v. Rees, 84 L. J. K.B. 2022;
79 J. P. 479; 13 L. G. R. 1365— D.
Penny-in-the-slot Machine.] — By an agree-
ment the plaintiffs let certain automatic
machines to the defendant. To an action for
three weeks' rent of the machines the defen-
dant pleaded that the use of the machines by
the public constituted an unlawful game, and
that the plaintiffs, in order to induce the
defendant to enter into the agreement, had
represented to him that the use of the
machines constituted a game of skill and not
a game of chance. The nature of the work-
ing of the machines was this : By means of
the insertion of a penny in a slot a ball was
set in motion and worked its way down
among a number of pins, and the object of the
player was to catch the ball, as it emerged
from the pins, in a cup attached to a sliding
bar. Witnesses for the plaintiffs gave evi-
dence that skill in the game was improved
by practice : — Held, that there was evidence
of a governing element of skill in the game,
and therefore that the plaintiffs were entitled
to recover the amount claimed. Pessers v.
Catt, 11 J. P. 429; 29 T. L. R. 381— C.A.
The appellant was convicted of using his
premises for the purpose of "unlawful gaming"
being carried on thereon. Proof was given of
the user on the appellant's premises of an
automatic machine. On the insertion of a
halfpenny in the machine, a marble was re-
leased, which by the operation of a trigger
manipulated by the player, was shot up to the
top of the machine, whence it descended
through a series of pins which deflected its
course. The player, while the marble was
falling, tried to bring beneath it a cup in the
machine. The cup was fixed to a movable
lever which could be moved laterally right or
loft at the option of the player. The object of
the player was to catch the marble in the cup.
If he succeeded, by an automatic action, a disc
was released which entitled him to a penny-
worth of the appellant's goods; if he failed,
the halfpenny inserted became the property
of the appellant without any return to the
player. The appellant was convicted under
section 4 of the Gaming Houses Act, 1854,
the Justices finding that the game played with
the machine was predominantly one of chance ;
that skill did not enter substantially into the
game ; that having regard to the players con-
templated by the appellant as using the
machine the chances were not alike equal to
all the players including the appellant ; that
the chances were in the appellant's favour;
and that the game could not be converted from
one of chance to one of skill : — Held, that the
findings of the Justices as to the character of
the game played with the machine were ques-
tions of fact and consequently not reviewable
by the Court, and that the finding that the
game was one of chance and one in which the
chances were not equal alike to all the players,
including the appellant, brought the game
within section 2 of the Gaming Act, 1845, and
consequently that the game played with the
machine was unlawful gaming within section 4
of the Gaming Houses Act, 1854, and that the
appellant was rightly convicted. Fielding v.
Turner (72 L. J. K.B. 542 ; [1903] 1 K.B. 867)
applied and followed. Donaghy v. Walsh,
[1914] 2 Ir. R. 261— K.B. D.
In a prosecution under a local Act for
exposing in a shop " a lottery " consisting of
a machine, it was proved that the machine
was actuated by placing a penny in a slot,
that this enabled a spring to be worked which
projected a ball to the top of the machine,
whence it descended through a number of
irregularly placed pins and emerged at any
one of five openings, where it might be inter-
cepted by a sliding cup operated by the
manipulator, whose object was to catch the
ball in the cup. There was no part of the
machine where the ball could emerge that was
not within reach of the sliding cup. The
manipulator, if successful, received a metal disc
entitling him to twopence worth of goods in
the shop ; if unsuccessful he forfeited his
penny : — Held (Lord Johnston dissenting),
that although, in the hands of an ordinary
member of the public, success depended largely
on chance, yet, as the desired result might be
attained on every occasion by the exercise of
skill, the machine was not a lottery. Forte
V. Dewar (1 F. (J.) 82) overruled. 'Di Carlo
V. M'Intyre, [1914] S. C. (J.) 60— Ct. of Just.
" Three-card trick " — " Fraud or unlawful
device or ill practice in playing at or with
cards. ""^ — The applicants were charged with
obtaining money by false pretences within
section 17 of the Gaming Act, 1845, which
makes it an offence to win money of another
by fraud " in playing " at cards, and enacts
that it shall be deemed an obtaining of money
by a false pretence. They won money from
the prosecutor at a game substantially identical
with the "three-card trick." The false pre-
tences or fraud suggested were that the appli-
cants pretended they were strangers to each
other, and that the game to be played with
the prosecutor would be played in the same way
as a previous game between the applicants, at
which latter game one of them, purporting to
be the prosecutor's friend, won : — Held, that
609
GAMING AND WAGERING.
610
there was no evidence of fraud " in playing "
at cards, but only in inducing the prosecutor to
play; that the game, as played, was one of
skill only; and that, consequently, no offence
had been committed. Rex v. Brixton Prison
{GovernoTj ; Sjoland, Ex parte, 82 L. J.
KB. 6; [1912] 3 K.B. 568; 77 J. P. 23;
29 T. L. R. 10— D.
" ProgressiYe whist."] — The appellant was
the occupier of certain premises which were
let to him, together with the use of one
hundred tables with accompanying chairs, for
21. 10s. per occasion, for the purpose of carry-
ing on a game of cards known as " progressive
whist," and otherwise as "whist drives."
The appellant advertised these whist drives,
which were to be held at the said premises
weekly through the winter season, by issuing
posters inviting the public to attend on pay-
ment of fid. per ticket, which would admit one
person. The poster stated that ten valuable
prizes would be given each week. The admis-
sion tickets were obtainable on or off the
premises by any one who applied for them,
and were ultimately exchanged for cards on
which were marked the score obtained while
playing progressive whist, but did not entitle
the holder to refreshments. Having obtained
these cards, the players were shewn to tables
and proceeded to play the ordinary game of
whist. There was no choice of partners, but
the winning couple on the termination of each
hand proceeded to the next tables, one to the
table higher up the room and the other to
the table down the room, and the couple who
had lost remained at the same table, one of
them changing his or her seat, so as not to
play with the same partner in the next hand.
After about twenty hands had been played in
this manner the scores were totalled up and
the five ladies and five gentlemen returning the
highest scores were presented with prizes
varying in value from 3s. to 18.?., which were
provided by the appellant out of the proceeds
of the ticket money, the balance of such ticket
money, after paying all expenses, being re-
tained by the appellant for his personal profit.
The appellant having been convicted of using
the premises for the purpose of unlawful
gaming contrary to section 4 of the Gaming
Houses Act, 18.54. — Held, that on the facts
the element of skill in the game was so slight
and that of chance so predominant, that the
game must be considered as one of pure
chance, and that, as the appellant had allowed
a game of chance to be carried on for money,
he had been rightly convicted. Morris v.
Godfrey, 106 L. T. 890; 76 J. P. 297;
23 Cox C.C. 40; 28 T. L. R. 401— D.
B. WAGERS.
See also Vol. VII. 496, 1706.
Partnership — Bookmakers — Accounts.] —
In 1908 the plaintiff and the defendant entered
into a partnership to carry on a betting
business. No money was subscribed at the
time, but money was found by the plaintiff
for the conduct of the business as required. In
1910 the partnership was dissolved by mutual
consent, and on an account being taken the
defendant agreed that lOOZ. was due to the
plaintiff, and he gave the plaintiff an 1 0 U
for that amount. Subsequently he paid 71. on
account, but as he did not pay the balance of
93/. he was sued for that amount by the plain-
tiff. It was proved in evidence that 173/. had
been drawn out of the partnership account by
the defendant for private purposes ; that S5l.
was standing to the credit of the partnership
at the date of the dissolution ; and that the
100/. for which the 1 0 U was given was a
rough estimate of the share due to the plain-
tiff : — Held, first, that there was no evidence
that the partnership business was carried on
in a manner that was illegal within the
Betting Act, 1853; secondly, that the lOU
was not a promise, express or implied, to pay
a sum to the plaintiff within the Gaming Act,
1892, and that the plaintiff was entitled to
recover. Brookman v. Mather, 29 T. L. R.
276— Avory, J.
A partner in a bookmaker's business may
sue his co-partner for an account of partner-
ship dealings, and may recover so much of
any capital advanced by him for the purposes
of the business as has not been applied in
payment of bets, although he cannot recover
anything which represents profits of the busi-
ness. Thomas v. Dey (24 T. L. R. 272) not
followed. Brookman v. Mather (29 T. L. R.
276) followed. Keen v. Price, 83 L. J. Ch.
865; [1914] 2 Ch. 98; 111 L. T. 204; 58 S. J.
495; 30 T. L. R. 494— Sargant, J.
Forbearance to Make Defendant's Default
Public — New Contract.] — The plaintiff and
defendant were bookmakers, and as the result
of certain betting transactions between them
a sum of 30/. 10s. was due from the defendant
to the plaintiff. In an action to recover this
amount the plaintiff stated that when the debt
became due the defendant asked for time to
pay, and requested that the matter might be
kept absolutely confidential, as if it got about
it would do him a lot of harm. The plaintiff
agreed to give defendant time, and promised
to keep the matter confiden*-ial. He stated in
his evidence that, if the matter had got about,
the defendant would have been finished as a
bookmaker. The County Court Judge gave
judgment for the plaintiff, holding that a new
contract had been entered into between the
parties by which the plaintiff forbore to sue
the defendant or declare him a defaulter in
consideration of the defendant's promise to
pay the debt at a future time : — Held, that
there was evidence upon which the Couhty
Court Judge could come to that conclusion.
Wilson V. Conolly, 104 L. T. 94; 27 T. L. R.
212— C.A.
The plaintiff was a bookmaker, and as the
result of betting transactions the defendant
owed him 138/. The plaintiff instructed his
solicitor to proceed against the defendant,
whereupon the defendant wrote saying he was
trying to carry out a financial arrangement,
and as soon as it was completed he would
attend to the plaintiff's claim. He asked the
plaintiff to withdraw the matter from the
hands of his solicitor, as if anything leaked
out to shew that he had lost money, and
had been gambling, the financial arrangements
would become impossible. The plainh'ff there-
20
611
GAMING AND WAGERING.
612
upon instructed his solicitor not to proceed
at that time against the defendant, but the
debt not having been paid, the plaintiff subse-
quently sued the defendant, contending that
the letter constituted a valid and binding con-
tract to pay : — Held, that the action failed,
as on the facts there was a mere request for
and obtaining further time for the payment
of a debt which the plaintiff could not in
any circumstances have enforced. Hyams v.
Coomhes, 28 T. L. E. 413— Lush, J.
Agreement to Submit Question of Account
to Committee of Tattersall's.] — The plaintiff,
a bookmaker, made bets with the defendant,
and a dispute arising as to the amount owing
to the plaintiff, the parties agreed to go before
the committee of Tattersall's, and the defen-
dant further agreed that if the committee
decided against him he would send the plain-
tiff a cheque for the amount found due. The
committee decided that 37Z. lis. Brf. was due
from the defendant to the plaintiff. As the
defendant did not pay this amount the plaintiff
sued him to recover same. At the trial the
defendant set up the Gaming Acts : — Held,
that upon the facts there was a new promise
to pay by the defendant founded upon a fresh
consideration which was sufficient to prevent
the operation of the Gaming Acts ; and there-
fore that the plaintiff was entitled to recover.
Whiteman v. Newey, 28 T. L. E. 240— D.
Guarantee to Bank to Enable Debtor to Pay
Lost Bet — Money Paid under Guarantee.] —
In March, 1904, a bookmaker borrowed 1,000Z.
to enable him to make bets on horse races, and
upon the terms that the lender should have
half of all the profits made by the betting. In
April, 1903, the lender guaranteed an overdraft
to the extent of 1,000/. at his debtor's bank
for the purpose of the bookmaking business,
and the whole of the money having been lost
the lender guaranteed a further 500L at the
bank to enable the debtor to pay another book-
maker lost debts to that amount, and which
were duly paid. In September, 1906, the
lender paid the bank 1,633/. under the two
guarantees, and on his death in 1907 his
executors obtained final judgment in default
of defence against the debtor for 3,019/. odd
and costs. A bankruptcy petition having been
presented against the debtor, in which the
act of bankruptcy alleged was that he had
failed to comply with the requirements of a
bankruptcy notice founded upon the judgment,
the Eegistrar dismissed the petition on the
ground that the case was within the mischief
of the Gaming Acts, and that there was no
valid debt to support the petition : — Held
(reversing the Eegistrar), that, irrespective
of the other parts of the transaction, the
guarantee for 500/. was not invalid under the
law prior to 1892 ; that under such law the
debt resulting from money lent to enable the
borrower to pay a bet already lost by him,
not being a debt for an illegal consideration,
could be proved in his bankruptcy ; that the
law had not been altered by section 1 of the
Gaming Act, 1892, but prevailed, and that the
500/. was not money paid by the lender under
or in respect of any contract rendered null
and void by the Gaming Act, 1845, within the
language of section 1 of the Act of 1892 : —
Held, also, that, the guarantee having been
given in 1903, but no payment having been
made in respect thereof until 1906, although
the banking account still continued, the pre-
sumption was, having regard to the rule in
Clayton's Case (1 Mer. 572), that the original
transaction in respect of any vice attaching
to it by reason of the Gaming Acts must have
been wiped out, so that no question arose
with regard to it, and consequently that there
was a good debt to support the petition.
O'Shea, In re; Layicaster, ex parte, 81 L. J.
K.B. 70; [1911] 2 K.B. 981; 105 L. T. 486;
18 Manson, 349— C. A.
Lister, In re; Pike, ex parte (47 L. J.
Bk. 100; 8 Ch. D. 754), applied. Tatham v.
Reeve (62 L. J. Q.B. 30; [1893] 1 Q.B. 44)
and Saffery v. Mayer (70 L. J. K.B. 145;
[1901] 1 K.B. 11) distinguished. 7b.
Cheques Given for Racing Bets — Cheques
Paid by Payee into his Bank — Claim by
Drawer to RecoYer from Payee as "Holder"
Amount of Cheques — Whether Banker an
"Indorsee."] — By the conjoint effect of
section 1 of the Gaming Act, 1710, and sec-
tion 1 of the Gaming Act, 1835, all securities
(including bills) given for gaming considera-
tions shall be deemed and taken to have been
made, drawn, given, or executed for an illegal
consideration. By section 2 of the Gaming
Act, 1835, if any person shall make, draw,
give, or execute (inter alia) any bill for such
gaming consideration, and such person shall
actually pay to any indorsee, holder, or assignee
of such bill the amount of the money thereby
secured, or any part thereof, such money so
paid shall be deemed and taken to have been
paid for and on account of the person to whom
such bill was originally given for such gaming
consideration, and shall be deemed and taken
to be a debt due and owing from such last-
named person to the person who shall so have
paid such money, and shall be recoverable by
an action at law. The plaintiff gave the de-
fendant five cheques in payment of certain
racing bets. These cheques were made payable
to the defendant or order and crossed, and
were paid by the defendant into his bank. The
plaintiff afterwards sued the defendant for the
amount of the cheques, under section 2 of the
Gaming Act, 1835. There was no evidence
that the defendant's banking account was over-
drawn : — Held, that the action failed, as the
defendant was not the " holder " of the cheques
within the meaning of section 2, and it must
be inferred that the bankers to whom the
defendant paid the cheques merely collected
them for the defendant, and were therefore not
" indorsees " within the meaning of the sec-
tion. Nicholls V. Evans, 83 L. J. K.B. 301;
[1914] 1 K.B. 118; 109 L. T. 990; 30 T. L. E.
42— Channell, J.
Quare, whether the plaintiff could have
recovered under the section if the defendant
had paid the cheques to his bankers in the
character of holders in their own right and not
in the character of agents merely for collection. ■
Ih. 1
Deposit of Money to be Used for Speculation
in Stocks — Sums Deposited to be Repaid in
613
GAMING AND WAGERING.
614
Full if no Profit made — Loss of Interest on
Deposit.] — The defendant sent out a circular
in which he stated that if the persons receiving
it would contribute certain sums to a three
months' " Trust " he was about to open, he
would operate in specified stocks, and if at
the end of ninety days those stocks stood at
a higher figure than at the opening of the
" Trust," he would divide the profit, less 10
per cent., among the contributors; and that
the amount of the subscription to the " Trust "
would in any event — that is, whether there
was a profit or a loss on the stocks — be repaid
at the end of the ninety days. The plaintiff
paid a sum to the defendant on the terms of
the circular, and, profits having been made on
the specified stocks, he sued the defendant to
recover the same. He also claimed to recover
the amount of his contributions to three other
" Trusts " of similar kind, each of which had
resulted in a loss : — Held, that the contract
between the parties was a wagering contract,
and that the plaintiff was therefore not entitled
to recover. Richards v. Starck, 80 L. J. K.B.
213; [1911] 1. K.B. 296; 103 L. T. 813;
27 T. L. E. 29— Channell. J.
Definition of a gaming and wagering trans-
action formulated by Cotton, L.J., in Thacker
V. Hardy (48 L. J. Q.B. 289; 4 Q.B. D. 685)
considered and applied. lb.
C. RACES.
See also Vol. VII. 516, 1714.
" Racecourse " — Inclosed Field — Athletic
Sports — Horse Races.] — In an inclosed field,
to which admission was obtained by payment,
athletic sports were held. The programme
included two horse races and ten other events,
consisting of foot races, jumping, and other
athletic competitions. At the entrance to the
field there was, conspicuously exhibited, a
notice prohibiting betting : — Held, that the
field was not a " racecourse " within section 2
of the Street Betting Act. 1906, and therefore
a conviction of the appellant under section 1
of that Act for betting in the field was right.
Stead V. Aykroyd, 80 L. J. K.B. 78; [1911]
1 K.B. 57 : 103 L. T. 727 : 74 J. P. 482— D.
D. STATUTOEY OFFENCES.
1. Lottery.
See also Vol. VII. 522, 1716.
Sale of Tickets — Publication of Scheme —
Prize not Purchased out of Money Paid for
Tickets. 1 — The sale of tickets which give the
holders a chance of winning a prize is an
offence under section 41 of the Lotteries Act.
1823, as being the sale of tickets in a lottery,
notwithstanding tha*' the prize has been pre-
sented and has not been purchased out of the
money paid by the ticket holders for the tickets.
Bartlett v. Parker. 81 Jj. J. K.B. 8-57: [1912]
2 K.B. 497; 106 L. T. 869; 76 J. P. 280;
23 Cox C.C. 16— D.
Newspaper Article.] — Bv the Lotteries
Acu, 1823, s. 41, any person who " shall pub-
lish any proposal or scheme for the sale of any
, ticket " in any lottery not authorised by Act
j of Parliament " shall, for every such offence,
forfeit and pay the sum of fifty pounds, and
shall also be deemed a rogue and a vagabond.
..." : — Heidi, that an article in a news-
paper favourably criticising a proposal for a
sweepstake upon a horse race, and giving in-
formation as to from whom, and at what price,
tickets could be purchased, was not the " publi-
cation of a proposal or scheme for the sale of
tickets in an unauthorised lottery " within the
meaning of section 41 of the Lotteries Act.
1823 ; and that, consequently, neither the editor
nor the printer of the newspaper were guilt v
of the offence created by that section.
Bottomley v. Director of Public Prosecutions,
84 L. J. K.B. 354; 112 L. T. 458; 79 J. P.
153; 31 T. L. E. 58— D.
Per Darling, J. : The editor and printer
might have been proceeded against under the
Lotteries Act, 1836, because the article in
question advertised the lottery. 75.
Offer of Prize for Composing Sentence —
Chance — Skill.] — The proprietors of a news-
paper offered prizes of 500?., lOOL, 50/.,
twenty of 51., two hundred of IZ., and one
hundred of lOs. each, aggregating l.OOOZ. By
the conditions a competitor had to select one
from a list of given words, and, subject to
certain rules as to initial letters, compose a
sentence having some bearing on the word
selected, write it on a coupon, and send it in,
together with the sum of 'Sd. Specimen words
and sentences and the winning sentences of
the preceding competition were given. The
editor undertook that every answer reaching
him should receive careful consideration, and
his decision as to the prizewinners was to be
final. The result was to be announced ten
days after the latest date for sending in the
coupons : — Held, that this was not a lottery on
the face of it, the result not being dependent
on chance only. Scott v. Director of Public
Prosecutions, 83 L. J. K.B. 1025; [1914]
2 K.B. 868; 111 L. T. 59; 78 J. P. 267;
24 Cox C.C. 194; 30 T. L. E. 396— D.
The alderman held that as it must be
assumed that the competition was not in-
tended to be conducted at a loss, he assumed
that the proprietors contemplated at least
40,000 coupons at &d. each, equivalent to the
1,000/. prize money; that on that footing it
would be impossible to consider each of these
on its merits in the ten days allotted for con-
sideration, and that therefore the distribution
must be by chance only : — Held, that the
above facts did not constitute evidence upon
which the alderman could find that the com-
petition had been in fact conducted as a
lottery. lb.
Distribution of Postal Orders — Destination
Determined by Chance — Exercise by Donor
of Honest Judgment.] — The respondent,
the proprietor of a variety entertainment,
in the course of a performance distributed
a number of postal orders to various persons
in the audience. The respondent controlled
to some extent the action of his assistants
in making the distribution, but there was
no evidence that he exercised any honest
judgment as to the persons who were to
615
GAMING AND WAGERING.
616
receive the orders : — Held, that the destina-
tion of the orders was determined by chance,
and that the distribution was therefore a
lottery within section 2 of the Lotteries Act,
1699. Minty v. Sylvester, 84 L. J. K.B. 1982 ;
79 J. P. 543; 13 L. G. R. 1085; 31 T. L. R.
589— D.
Company Publishing Chances in Lottery —
"Rogues and vagabonds."] — A body cor-
porate cannot be convicted as rogues and
vagabonds under section 41 of the Lotteries
Act, 1823. Whether an action will lie in the
name of the Attorney-General to recover the
penalty of 50L imposed for the offence created
by the section, qucere Hawke v. HuJton,
78 L. J. K.B. 633; [1909] 2 K.B. 93;
100 L. T. 905 ; 73 J. P. 295 ; 16 Manson, 164 ;
22 Cox CO. 122; 25 T. L. R. 474— D.
Action to Recover Share in Lottery.] — The
plaintiff alleged that she bought from the
defendant one-eighth of a ticket in the
Hamburg State Lottery ; that the ticket had
won a prize in the lottery ; that the prize
money had been paid to the defendant ; but
that the defendant refused to pay over to the
plaintiff the share to which she was entitled :
— Held, that the action being in respect of a
sum of money alleged to be due as the pro-
ceeds of a lottery was not maintainable.
Gorenstein v. Feldmann, 27 T. L. R. 457 —
Lord Coleridge, J.
2. Advertisements of Gaming and Betting.
See also Vol. VII. 1719.
Distribution of Handbills Containing Offers
by Another to Bet. — A person who distri-
butes to people in the street handbills which
contain an offer by another person named
therein to bet with any recipient thereof, the
events of which he is prepared to bet, the odds
offered, and the means whereby a bet can be
made, can be convicted of loitering in the street
for the purpose of betting within the meaning
of section 1 of the Street Betting Act, 1906.
Dunning v. Swetmayi, 78 L. J. K.B. 359;
[1909] 1 K.B. 774; 100 L. T. G04 ; 73 J. P.
191; 22 Cox C.C. 93; 25 T. L. R. 302— D.
3. Sending Money-lending Circulars to
Infants.
Reasonable Ground for Believing that
Circular only Sent to Persons of Full Age.] —
The respondent, who was a money-lender, was
summoned for having sent a circular to an
infant inviting him to borrow money contrary
to the Betting and Loans (Infants) Act, 1892.
The respondent had given instructions to his
clerk to send out circulars to captains and
lieutenants in the Army, but, knowing that
many second lieutenants were minors, he
directed the clerk to send no circulars to
second lieutenants. Without his knowledge
the clerk sent a circular to a second lieutenant
who was in fact under twenty-one. The
magistrate held that as the respondent had
distinctly told his clerk not to send the circular
to second lieutenants he did not send or cause
to be sent the circular in question, and that
even if he were bound by the act of his clerk
he had reasonable ground for believing that
all persons to whom the circulars were sent
were of full age ; he accordingly dismissed the
summons : — Held, that there was evidence
upon which the magistrate could so find.
Director of Public Prosecutions v. Witkowski,
104 L. T. 453; 75 J. P. 171; 22 Cox C.C. 425;
27 T. L. R. 211— D.
4. Keeping a Place for Betting and
Gaming.
See also Vol. VII. 526, 1721.
"Using" House for the Purpose of Betting
virith Persons "Resorting" thereto.] — Sec-
tion 1 of the Betting Houses Act," 1853,
declares that any house used by any person
for the purpose of betting with any persons
resorting thereto shall be a common nuisance
and contrary to law, and section 3 of the Act
imposes penalties on any person so using the
same. The appellant employed a man to
stand on the footway outside the door of a
house to receive betting slips and money from
persons passing along the highway, and
another man to stand inside the doorway of
the house and receive the bets from the first
man and send them on to the appellant else-
where. He also gave the occupier of the
house various sums of money for the privilege
of his employees using the house in this
manner. The Justices convicted the appel-
lant of " using the house for the purpose of
betting with persons resorting thereto : — Held,
that there was evidence of a "user of the
house " and of " persons resorting thereto "
within the meaning of the Act, although the
persons making the bets did not enter the
house, and that the Justices were entitled on
the evidence to convict the appellant of the
offence charged. Reg. v. Brown (64 L. J.
M.C. 1; [1895] 1 Q.B. 119) distinguished.
Taylor v. Monk, 83 L. J. K.B. 1125; [1914]
2 K.B. 817; 110 L. T. 980: 78 J. P. 194;
24 Cox C.C. 156; 30 T. L. R. 367— D.
" Receiving" Money as a Deposit on Bet.]
— Under section 4 of the Betting Act, 1853,
it is not necessary in order to constitute a
receiving of money as a deposit on a bet by
the occupier of premises that such deposit
should be physically received in the premises
from the persons making the bet. It is an
offence if the money is handed to the occupier
of the premises outside and is then taken by
him into the premises. Boulton v. Hunt,
109 L. T. 245 ; 77 J. P. 337 ; 23 Cox C.C. 427
— D.
"Deposit."] — A person makes a deposit
within section 4 not only where he hands over
a sum smaller than the stake, but where he
hands over the full amount of the stake
(Avory, J., dissenting). lb.
Newspaper Offering Prizes for Forecasts of
Football Matches.! — The proprietors of a
weekly newspaper inserted in certain issues of
their paper a notice offering a money prize to
the person who, on a coupon cut from the
paper and sent to their office, should give a
617
GAMING AND WAGERING.
618
correct forecast of the result of certain football
matches. The papers were sold by the pro-
prietors at 9d. a dozen to newsagents, who
retailed them to members of the public at Id.
each. No papers were sold directly to the
public by the proprietors, and no coupons were
sold apart from the papers. A certain number
of papers were bought by members of the
public from the newsagents solely for the sake
of the coupons : — Held, that the proprietors of
the paper used their premises solely for the
selling of newspapers, and not for the receipt
of money on a promise to pay on a contingency,
and accordingly that they had not contravened
section 1 of the Betting Act, 1853. Leng d
Co. V. Mackintosh, [1914] S. C. (J.) 77—
Ct. of Just.
Evidence of User.] — M., with the assistance
of her brother P., kept a shop nominally for
the sale of chandlery, tobacco, and stationery.
The police observed that on days when the
newspapers announced that horse races would
take place numbers of persons visited the
shop, including a man known to the police
to be a bookmaker's tout, who on such days
was seen to visit the shop several times a day.
On making a raid the police found M. behind
the counter and three men in the shop, one
of whom was writing out a betting docket on
the counter. Two other betting dockets were
found on the floor beside another of the men,
and M. was seen to crush up and throw
behind the counter two slips of paper which
were found to be betting dockets. Betting
newspapers were found on the counter, and
betting literature behind the counter and in
the back parlour. M. was charged with using
the shop for the purpose of betting with
persons resorting thereto, and P. with " assist-
ing in the conduct and management of the
shop." The only evidence against P. was a
statement that he " assisted M. in the shop,"
made by the prosecutor in giving evidence
before the magistrate. Both M. and P. were
convicted and fined : — Held, that the shop
presented all the indicia of a " betting estab-
lishment," and that on the evidence the
magistrate was justified in convicting in both
cases. Maguire v. Quinn, [1911] 2 Ir. R. 216
— K.B. D.
A local Act provided that " any constable
having reason to suspect that any house . . .
is kept or used as a gambling or betting house
may enter such house . . . and take into cus-
tody every person who shall be found there-
in. .. ." A bookmaker occupied premises at
which he carried on his business. No persons
resorted to the premises for the purpose of
betting, the bookmaker communicating with
his customers only by letter, telegram, or tele-
phone. No money was deposited when the bet
was made, but accounts were rendered weekly,
and the balance remitted to or by the book-
maker according to the result of the events on
which the bets were made, and the state of
the customer's account : — Held, that the pre-
mises were not kept as a " betting house "
within the meaning of the local Act. Traynor
V. Macpherson, [1911] S. C. (J.) 54—
C^ of Just.
The appellant, a bookmaker, received from
E. by post at his house postal orders in order
that B. might open a deposit account with
him for the purpose of making future bets.
Shortly afterwards E. backed horses with him,
portions of the deposit being appropriated for
that purpose. The appellant's house was
entered by the police a few days later, and a
large number of slips and account books relat-
ing to betting were found therein. It was not
shewn that any of these related to illegal bets,
and the appellant had, in fact, a large credit
betting business : — Held, that there was evi-
dence upon which the jury could find that the
appellant used the house for the purpose of
money (assuming the postal orders to be
money) being received by him in consideration
for his promise to pay thereafter money on
the event of horse races within the meaning
of section 1 of the Betting Act, 1853. Rex
V. Mortimer, 80 L. J. K.B. 76; [1911] 1 K.B.
70; 103 L. T. 910; 22 Cox C.C. 359; 75 J. P.
37; 27 T. L. R. 17— CCA.
Queer e, whether postal orders are " money "
within the above section. Ih.
An accused was charged with, and convicted
of, contravening the Betting Acts by keeping
a room at an address and a room at another
address " for the purpose of money . . .
being received ... as the consideration for
an undertaking ... to pay thereafter money
on events . . . relating to games ..." : —
Held, that the conviction was good, although
all the money was received and all the corre-
spondence relating to bets was conducted at
one room, while the other was used exclusively
for settling up accounts. Stoddart v. Haivke
(71 L. J: K.B. 133; [1902] 1 K.B. 353)
applied. Hodgson v. Macpherson, [1913]
S. C (J.) 68— Ct. of Just.
Ready Money or Credit Betting.] — A book-
maker occupied premises where he carried on
his business by receiving communications from
his clients by telephone, the client subse-
quently sending by post a note of the bet
along with a postal order for the sum staked.
In a prosecution of the bookmaker for a con-
travention of the Betting Act, 1853, no
nuisance was proved of money being received
by the bookmaker before the race on which it
was staked was run, but it was proved that
clients did not receive their winnings until
after their money had been received by the
bookmaker : — Held (Lord Salvesen dissent-
ing), that the bookmaker had committed a
contravention of the Act. Traynor v.
Macpherson, [1914] S. C (J.) 174— Ct. of
Just.
Whether a credit system of betting would
be an infringement of the Act, queere. lb.
Search of Suspected House — Seizure of
Documents — Unopened Letters.] — Section 11
of the Betting Act, 1853, empowers a Justice
of the peace in certain circumstances to
authorise any constable by special warrant to
enter any house or premises suspected of being
used as a betting house " and to seize all lists,
cards, or other documents relating to racing
or betting found in such house or premises " :
field, that " documents " does not cover un-
opened letters found on the premises.
M'Lauchlan v. Renton, [1911] S. C (J.) 12
— Ct. of Just.
619
GAMIXCi AXJ) WAGERING-(1AS AND GASWORKS.
620
" Lists, cards, and other documents
relating to betting." —Postal orders are
covered by the words "lists, cards, or other
documents relating to betting" within
section 11 of the Betting Act, 1853. There-
fore they may be seized under a search
warrant granted under that section, and are
admissible in evidence against the person
charged with being the keeper of the betting
house. Hodgson v. Macpherson, [1913]
S. C. (J.I 68— Ct. of Just.
5. Betting in a PrBLic Place.
Place to which Public have Restricted Right
of Access — Railway Depot.] — A mineral depot
belonging to a railway company was an
irregularly shaped piece of ground surrounded
by a fence except for a distance of about
213 yards, where it was bounded by and open
to the main line of the company's railway.
The railway system of the company was in-
closed by walls or fences except where it con-
nected with other railway systems. The only
persons who had a right to enter the depot
were railway servants and persons who had
business with the railway company -.—Held
{duhitante the Lord Justice-Clerk), that the
depot was an " inclosed place " to which the
public had a " restricted right of access "
within the meaning of section 1, sub-section 4
of the Street Betting Act, 1906. Walker v.
Reid, [1911] S. C. (J.) 41— Ct. of Just.
Open Shed on Quay.] — On a quay belonging
to a harbour trust there was a shed in the
sides of which there were large openings with-
out gates or doors. The public had free access
to both quay and shed : — Held, that the shed
was " uninclosed ground," and was a "public
place " within the meaning of the Street Bet-
ting Act, 1906. Campbell v. Kerr, [1912]
S. C. (J.) 10— Ct. of Just.
" Racecourse " — Inclosed Field — Athletic
Sports — Horse Races.] — In an inclosed field,
to which admission was obtained by payment,
athletic sports were held. The programme
included two horse races and ten other events,
consisting of foot races, jumping, and other
athletic competitions. At the entrance to the
field there was, conspicuously exhibited, a
notice prohibiting betting : — Held, that the
field w^as not a " racecourse " within section 2
of the Street Betting Act, 1906, and therefore
a conviction of the appellant under section 1
of that Act for betting in the field was right.
Stead V. Aykroijd, 80 L. J. K.B. 78: [1911]
1 K.B. 57 ; 103 L. T. 727 ; 74 J. P. 482— D.
GARNISHEE.
See ATTACHMENT.
GAS AND GASWORKS.
1. Supphj, 620.
2. Laying doicn Pipes, 620.
3. Purchase of Undertaking, 622.
1. Supply.
See also Vol. VII. 539, 1733.
Gas Supplied by Meter — Improper Use.] —
A manufacturer, who was supplied with gas
for power purposes at a certain rate, the
quantity used being ascertained by a meter,
was charged with an offence under section 18
of the Gasworks Clauses Act, 1847. in respect
that he improperly used and burned such gas
for lighting purposes, for which a higher rate
was exigible : — Held, that the complaint was
irrelevant as the improper using and burning
of gas prohibited by section 18 referred only
to gas not ascertained by meter. Falkirk
Magistrates v. Russell, [1911] S. C. (J.) 99—
Ct. of Just.
2. Laying Down Pipes.
See also Vol. VII. 545, 1736.
In Highway — Tunnel under Highway —
Laying Pipes through Tunnel — " Building" —
"Tunnel" — Re-instating Tunnel.] — The
owner of land on both sides of a highway made
a tunnel under the road in order to connect his
two properties. A gas company having power
to lay pipes in the highway laid them through
the tunnel, and in doing so removed part of
the roof of the tunnel : — Held, that the tunnel
was a " building " within the meaning of sec-
tion 7 of the Gasworks Clauses Act, 1847, and
therefore the company had no power to lay
pipes through it. Held also, that the tunnel
in question was not a "tunnel" within the
meaning of section 6 of the Act with which
they could interfere, and that, even if it were,
they had not re-instated the tunnel in accord-
ance with the provisions of the Act. Schtceder
V. Worthing Gas Light and Coke Co. (No. 1),
81 L. J. Ch. 102: [1912] 1 Ch. 83: 105 L. T.
670: 76 J. P. 3; 10 L. G. R. 19: 56 S. J. 53;
28 T. L. R. 34— Eve, J.
The word " tunnel " in section 6 is used to
describe something ejiisdem generis with
sewers and drains. Ih.
Power to Break up Roads — Land Dedicated
to Public — Extent of Dedication — Depth of
Soil — Laying Pipes Five Feet Below Surface.]
— Although only so much of the soil of a high-
way is dedicated to the public as is necessary
to support the road, yet under the Gasworks
Clauses Act, 1847, a gas company can lay their
pipes below the stratum necessary for that
purpose. The dedication of the road to public
use brings it within section 6 of that Act, and
no part of the soil underlying the road is
" land not dedicated to public use " within
the meaning of section 7 of the Act. Schweder
V. Worthing Gas Light and Coke Co. (No. 2),
82 L. J. Ch. 71 : [1913] 1 Ch. 118: 107 L. T.
844; 77 J. P. 41 ; 11 L. G. E. 17 ; 57 S.J. 44—
Eve, J.
I
621
GAS AND GASWORKS— GIFT.
622
Highway not Repairable by Inhabitants
at Large — Notice to Local Authority.] — By
section 8 of the Gasworks Clauses Act, 1847,
" Before the undertakers proceed to open or
break up any street . . . they shall give to the
persons under whose control or management
the same may be, or to their clerk, surveyor
or other officer, notice in writing of their
intention to open or break up the same, not
less than three clear days before beginning
such work ..." The appellants, for the
purposes of their undertaking, broke up a
road in the respondents' district without
having given notice under the above section
of their intention to break up the same. The
road had been dedicated to the public by the
landowner, but had not been taken over or
repaired by the respondents : — Held (Bankes,
J., dissenting), that the road being a highway
not repairable by the inhabitants at large, the
respondents had not such a " control or man-
agement " of it as to entitle them to receive
notice from the appellants under the section.
Redhill Gas Co. v. Reigate Rural Council,
80 L. J. K.B. 1062; [1911] 2 K.B. 565;
105 L. T. 24; 75 J. P. 358; 9 L. G. E. 814
— D.
Prohibition against Extending " Mains " —
Service Pipes.] — By a local Act it was provided
that it should not be lawful for the defendants
to extend their existing '" mains '" for the
supply of gas unless with the previous consent
in writing of the plaintiffs. The defendants,
without such consent, laid a two-inch pipe
eighty-eight yards in length from their fifteen-
inch main to supply a foundry with gas for
power and lighting purposes. The pipe was
laid alongside the road and was not of any
greater capacity than was required for the
present purposes of the foundry : — Held, that
the pipe was not a " main " within the mean-
ing of the Act, either by reason of its position
or capacity or otherwise. Whittington Gas
Light and Coke Co. v. Chesterfield Gas and
Water Board, 83 L. J. Ch. 662; [1914]
2 Ch. 146; 111 L. T. 422; 78 J. P. 379;
12 L. G. E. 892 ; 58 S. J. 577 ; 30 T. L. E. 519
Q ^
Decision of Eve, J. (83 L. J. Ch. 390;
[1914] 1 Ch. 270), affirmed. 7b.
Duty to Re-instate after Breaking up Street
to Lay Pipes.] — A gas company are not
released from their liability under section 10
of the Gasworks Clauses Act, 1847, to re-instate
the soil and pavement of a street, after break-
ing up the street for the purpose of re-laj'ing
gas pipes, although the local authority have
passed a resolution, under the powers given
them by section 114 of the Metropolis Manage-
ment Act, 1855, that they will in all such cases
do the work of re-instatement themselves. To
transfer the duty from the gas company to
the local authority, together with consequent
liability for negligence, it is necessary tbtii
the local authority should have actually
entered upon and taken over the control of
the work of re-instatement. A Metropolitan
borough coimcil passed a resolution that they
would, in all cases where any pavement was
opened by a gas company in their borough,
do the work of re-instatement themselves.
The defendants, having subsequently opened
the pavement of a street for the purpose of
re-laying gas pipes, temporarily re-instated
the soil and pavement, and gave notice to the
local authority of such temporary re-instate-
ment. The plaintiff, a foot passenger,
sustained personal injuries by reason of the
negligent re-laying of one of the paving stones.
There was evidence that just before and after
the accident the defendants' servants exercised
acts of re-instating the paving stones : — Held,
that the mere resolution of the local authority
did not, after the expiration of a reasonable
time after receipt of the notice of temporary
re-instatement, ipso facto release the defen-
dants from their liability under the Gasworks
Clauses Act, 1847, and that they were
responsible for the plaintiff's injuries. Brame
V. Commercial Gas Co., 84 L. J. K.B. 570;
[1914] 3 K.B. 1181; 111 L. T. 1099; 79 J. P.
55 ; 12 L. G. E. 1270— D.
3. Purchase of rxDEETAKiXG.
Purchase by Corporation — Statutory Powers
— Basis of Price.] — By section 50 of the Perth
Gas Company's Act, 1886, it was made lawful
for the Perth Corporation " to purchase all the
land, buildings, works, hereditaments, lamps,
pipes, stock and appurtenances of and belong-
ing to the company in the name and on behalf
of the corporation . . . upon such terms and
conditions as shall or may be mutually agreed
upon . . . but in case of any dispute or dis-
agreement between the directors and the
corporation respecting such purchase as afore-
said, then it shall be lawful for the directors
or the corporation, if they or either of them
think fit, to require that it shall be left to
arbitration to determine what amount of pur-
chase money shall be paid to the directors " : —
Held, that the price to be paid was the value
of the commercial undertaking of the company
as a going concern, not only the physical
apparatus by which the company carried on
their business, but their powers to use that
apparatus for the purposes of carrying it on.
Perth Gas Co. v. Perth Corporation, 80 L. J.
P.C. 168; [1911] A.C. 506; 105 L. T. 266;
27 T. L. E. 526— P.C.
GENERAL AVERAGE.
See SHIPPING.
GIFT.
See also Vol. VII. 556, 1741.
Imperfect Gift — Contractual Obligation.^ —
At the death of the testator certain promises
by him of donations to various institutions
remained unredeemed : — Held, that th'^se
promises created no contractual obligation
between the parties, and therefore that there
623
GIFT— HABEAS CORPUS.
624
was no legal debt due from the testator's
estate to the institutions. Cory, In re;
Kinnaird v. Cory, 29 T. L. R. 18— Eve, J.
Undue Influence — Parent and Child —
Manager of Business.] — It is not every fidu
ciary relation existing between donor and donee
which raises a presumption that the gift was
made under undue influence. Coomber, In re ;
Coomber v. Coomber, 80 L. J. Ch. 399; [1911]
1 Ch. 723; 10-1 L. T. 517— C.A.
For several years prior to his father's death
a son assisted his father in the business of an
ale-store keeper, and after his father's death
in July, 1905, acted as manager of the same
business for his mother, who was sole execu-
trix and universal legatee under the father's
will. In September, 1905, the mother, being
fully advised as to the nature and conse-
quences of her act bj' an independent solicitor,
executed a voluntary assignment of the ale
stores in favour of the son, being actuated by
affection for her son and a desire to carry out
what she believed to have been a wish of the
father. The mother died in 1906, having by
her will given her residuary estate between her
three children equally. In an action impeach-
ing the voluntary assignment, — Held, that the
son stood in no such fiduciary relation to the
mother as to throw upon him the burthen of
shewing that the gift was not made under
undue influence. Held, also, that in any case
any presumption of undue influence was suffi-
ciently rebutted by the facts. 7b.
Independent Advice — Duty of Solicitor.] —
Per Fletcher Moulton, L.J. — An independent
solicitor advising a competent adult donor in
the matter of an intended gift should fully
explain to the donor the nature and conse-
quences of his act, but it is no part of his duty
to express his approval or disapproval of the
donor's intentions. lb.
Donatio Mortis Causa — Sufficiency — Chat-
tels — Bearer Bonds — Partial or Inchoate
Delivery — Handing over of Key of Receptacle
of Property.] — A valid donatio mortis causa
of chattels may be made by a partial or in-
choate delivery of them, effected by delivery of
the means, or part of the means, of obtaining
possession of the property. W., when about
to undergo a serious operation, from the effects
of which he died, placed a number of bearer
bonds in a parcel, and wrote his wife's name
on the parcel. He then left the parcel at his
bank in a locked box, of which he retained the
key. He handed a list of the bonds to his
wife, and afterwards gave her the key of the
box; and she, under his direction, then locked
the list and the key in a drawer in her own
room, of which she always kept the key : —
Held, that this constituted an effectual donatio
mortis causa of the bonds to the wife. Jones
V. Selby (Pr. Ch. 300), Taylor, In re; Taylor
V. Taylor (56 L. J. Ch. 597). and Mustapha,
In re; Mustapha v. Wedlake (B T. L. R. 160),
followed. Wesserberg, In re; Ujuon of London
and Smiths Bank v. Wasserberg, 84 L. J.
Ch. 214; ri915] 1 Ch. 195; 112' L. T. 242;
59 S. J. 176— Sargant. J.
GOODS.
Assignment of.] — See Bill of Sale.
Converting.] — See Trover.
Sale of.] — See Auction and Auctioneeb;
Sale op Goods.
GOODWILL.
Sale and Transfer — Soliciting Customers of
Old Firm — Sale by Trustee under Deed of
Assignment for Benefit of Creditors.] — The
rule of Trego v. Hunt (65 L. J. Ch. 1; [1896]
A.C. 7), which precludes the vendor of the
goodwill of a business from soliciting the
customers of the old firm, does not apply to the
case of a sale not by the man carrying on the
business, but by the trustee of a deed of
assignment for the benefit of his creditors.
Walker v. Mottram (51 L. J. Ch. 108;
19 Ch. D. 855) applied. Green v. Morris,
83 L. J. Ch. 559; [1914] 1 Ch. 562; 110 L. T.
508; 58 S. J. 398; 30 T. L. R. 301—
Warrington, J.
GUARANTEE.
See BILL OF EXCHANGE; INSURANCE
(FIDELITY) ; PRINCIPAL AND SURETY.
HABEAS CORPUS.
Previous Extradition Proceedings in India
v?ith Respect to Same Charge — Applicant
Discharged Owing to Informality in Proceed-
ings— Prima Facie Case.] — Section 6 of the
Habeas Corpus Act, 1679, which provides that
" no person or persons which shall be delivered
or set at large upon any habeas corpus, shall
at any time hereafter be again imprisoned or
committed for the same offence by any person
or persons whatsoever, other than by the legal
order and process of such Court wherein he
or they shall be bound by recognizance to
appear, or other Court having jurisdiction of
the cause," only applies when the second arrest
is substantially for the same cause as the first
arrest, so that the return to the second writ of
habeas corpus raises for the opinion of the
Court the same question with reference to the
validity of the grounds of detention as the
first. The fact, therefore, that a person who
had been committed for extradition in India
upon the report of a magistrate was, owing
to some informality in the procedure before the
magistrate, released by the High Court at
625
HABEAS CORPUS— HEALTH INSURANXE.
626
Calcutta on a write in the nature of a habeas
corpus, notwithstanding that there was evi-
dence of a prima facie case against him, is
no bar to his being re-arrested in England
and committed for extradition to Germany
upon the same charge as that preferred against
him in India. Rex v. Brixton Prison (Gover-
nor) ; Stallmann. In re, 82 L. J. K.B. 8 ; [1912]
3 K.B. 424; 107 L. T. 553; 77 J. P. 5;
23 Cox C.C. 192; 28 T. L. R. 572— D.
Refusal of Rule Nisi by Divisional Court —
Court of Appeal — Jurisdiction.] — Where a
Divisional Court has refused to grant a rule
nisi for a habeas corpus in the case of a
prisoner who has been committed with a view
to extradition, the Court of Appeal has no
original jurisdiction to grant such a rule.
Le Gros, Ex parte, 30 T. L. R. 249— C. A.
Jurisdiction of Committing Magistrate.] —
See ExTBADiTiox.
Internment of Alien Enemy.] — See Alien.
HABITUAL CRIMINAL.
See CRIMINAL LAW.
HABITUAL DRUNKARD.
See INTOXICATING LIQUORS.
HACKNEY CARRIAGE.
See also Vol. VII. 596, 1747.
Application for Licence — Discretion of Com-
missioner of Police to Refuse.] — The Com-
missioner of Police is not entitled to lay down
and act upon a general rule to refuse a licence
for a cab where the applicant for the licence
holds his cab under a hire-purchase agreement.
Rex V. Metropolitan Police Commissioner;
Randall, Ex parte, 75 J. P. 486; 55 S. J. 726;
27 T. L. R. 505— D.
Under the regulations dated December 30,
1907, made by the Secretary of State in pur-
suance of sections 6 and 11 of the Metropolitan
Public Carriage Act, 1&59, the Commissioner
of the Metropolitan Police has a discretion in
regard to the granting of a licence for a cab or
a stage carriage. This discretion is not limited
to the excepted cases set out in clauses (a)
and (b) of regulation 1, but is a general dis-
cretion in regard to all applications. Rex v.
Metropolitan Police Commissioner ; Pearce,
Ex parte, 80 L. J. K.B. 223: 104 L. T. 135;
75 J. P. 85— D.
Under the regulations in the Order dated
December 80, 1907, and made by the Secretary
of State in pursuance of sections 6 and 11 of
the Metropolitan Public Carriage Act, 1869,
the Commissioner of Metropolitan Police has
not a general discretion in regard to the
granting or refusing of a licence for a cab or
stage coach, but such discretion is limited to
the excepted cases set out in clauses (a) and
(6) of regulation 1 of the Order. Rex v. Metro-
politan Police Commissioner; Pearce, Ex
parte (80 L. J. K.B. 223), overruled. Rex v.
Metropolitan Police Commissioner ; Holloway,
Ex parte, 81 L. J. K.B. 205; [1911] 2 K.B.
1131; 105 L. T. 532; 75 J. P. 490;
55 S. J. 773; 27 T. L. R. 573— C. A.
By-laws — Validity — Certainty and Reason-
ableness— Light on Dial of Taxi-cab.] — The
L. Corporation made the following by-law :
" The owner of every motor hackney carriage
shall have fitted on such carriage an efficient
lamp solely for the purpose of illuminating
the dial of the taximeter whenever it is neces-
sary in such a manner that the amount of
fare recorded can be clearly seen from the
inside of the carriage at all times, and every
driver shall see that the lamp is properly
lighted and adjusted and so kept." On a
summons against a driver for breach of this
by-law, the learned stipendiary magistrate
declined to convict the driver, being of opinion
that the by-law was invalid for uncertainty
and unreasonableness, since it imposed two
duties, one on the owner and one on the
driver; that although the duty on the owner
was to fit an efficient lamp for illuminating
the dial " whenever it was necessary," these
words did not appear in the part of the by-law
relating to the driver ; and further, that the
by-law did not contain adequate information as
to the driver's duties : — Held, that the words
" whenever it was necessary " applied both to
the driver and the owner ; that it required the
lamp to be fitted by the owner and kept alight
by the driver ; that it was not unreasonable
that the lamp should be solely for the purpose
of lighting the dial ; and therefore that the
by-law was valid. Dunning v. Maher,
106 L. T. 846 ; 76 J. P. 255 ; 10 L. G. R. 466 ;
23 Cox C.C. 1— D.
HARBOUR.
See SHIPPING.
HAWKER.
Licence.] — See Lee v. Wallocks, post.
Market.
HEALTH INSURANCE.
See INSURANCE.
627
HEALTH (PUBLIC)— HUSBAND AND WIFE.
628
HEALTH (PUBLIC).
See LOCAL GOVERNMENT;
METROPOLIS.
HEIRLOOMS.
See BILL OF SALE ; SETTLED LAND.
HIGHWAY.
See WAY.
HOMICIDE.
See CRIMINAL LAW.
HOSPITAL.
Hospital District — Committee — Establish-
ment by County Council — Constitution — Power
to Alter.]— He/d (Lord Cozens-Hardy, M.R.,
dissenting), that where a county council have
by an order established a committee for ai
hospital district under the Isolation Hospitals
Act, 1893, they have power by a subsequent
order to alter the constitution of the com-
mittee. Att.-Gen. v. Derbyshire County
Council, 60 S. J. 74; 32 T. L. R. 93— C. A.
Reversing, 79 J. P. 489; 13 L. G. R. 1309—
Sargant, J.
HOTCHPOT.
See WILL.
HOUSE.
Inhabited-house Duty.] — See Revenue.
HOUSE AGENT.
See PRINCIPAL AND AGENT.
HOUSE OF LORDS.
See APPEAL.
HOUSING AND TOWN
PLANNING.
See LOCAL GOVERNMENT.
HUSBAND AND WIFE.
I. Marriage.
1. Validity.
a. Petition for Declaration of Validity,
629.
b. Solemnisation, 629.
c. Evidence, 630.
2. Legitimacy of Children, 631.
3. Suits for Nullity.
a. Grounds for, 631.
b. Procedure, 632.
4. Action for Breach of Promise of
Marriage, 634.
5. Restitution of Conjugal Rights.
a. Jurisdiction, 634.
b. Demand, 635.
c. When Decree will be Granted, 635.
d. Procedure and Practice, '636.
II. Divorce.
1. Jurisdiction and. Duty of Court, 639.
2. Cruelty, 641.
3. Desertion, 641.
4. Bars to.
a. Generally, 642.
b. Condonation, 646.
c. Collusion, 646.
5. Custody of and Access to Children, 646.
6. Judicial Separation, 647.
7. Variation of Settlements, 647.
8. Alimony and Maintenance, 649.
9. Proceedings for.
a. Petition, 651.
b. Particulars, 652.
c. Discovery, 652.
d. Delay in Prosecuting Suit, 652.
e. Intervention of King's Proctor,
652.
/. Other Interveners, 653.
g. Evidence, 653.
h. Co-respondent, 655.
i. Trial, 655.
;'. The Decree, 655.
k. Costs.
i. Wife's Petition, 656.
ii. Husband's Petition, 656.
I
629
HUSBAND AND WIFE.
630
iii. Against Co-respondent, 657.
iv. Of King's Proctor and other
Interveners, 658.
10. Summary Proceedings.
a. In what Cases, 659.
b. Practice and Procedure, 660.
c. Appeal, 661.
III. Separation Deeds, 662.
rv. Wife's Eights and Property.
1. Doicer, 664.
2. Jointure, 664.
3. Power to Disclaim, 664.
4. Effect of Deceased Wife's Sister's
Marriage Act on Property, 664.
5. Policies of Insurance , 664.
6. Receipt by Husband, 666.
7. Dealings with, 666.
8. Restraint on Anticipation, 667.
9. Mortgages, 667.
Y. Husband's Liabilities, 668.
VI. Gifts between Husband and Wife, 669.
\JI. Actions between Husband and Wife,
669.
I. MARRIAGE.
See also Vol. VII. 625, 1752.
1. Validity.
a. Petition for Declaration of Validity.
Apart from special statutory provision, such
as the Legitimacy Declaration Act, 1858
(21 & 22 Vict. c. 93), the Court has no power
to entertain a petition for or pronounce a
declaration of the validity of a marriage.
Such power, being absent in tlie Ecclesiastical
Courts, is not supplied by the operation of
Order XXV. rule 5. De Gasquet James
(Countess) v. Mecklenburg-Schicerin [Duke),
83 L. J. P. 40: [1914] P. 53; 110 L. T. 121;
58 S. J. 341; 30 T. L. R. 329— Evans, P.
Marriage Void by Law of Roman Catholic
Church.] — A marriage effected in accord-
ance with the law of the land, and followed
by cohabitation, is not invalidated by the
fact that such marriage is void by the law
of the Roman Catholic Church, and that the
parties, had they known this, would not have
entered into the marriage contract. Ussher v.
Ussher, [1912] 2 Ir. R. 445— K.B. D.
b. Solemnisation.
Marriage Celebrated in Austria between
Irish Protestant and Austrian Catholic] —
Section 1 of an Irish statute of 1745 —
19 Geo. 2. c. 13 — provided that every marriage
after the year 1746 celebrated between a
Papist and any person who hath been, or liath
professed himself or herself to be, a Pro-
testant at any time within twelve months
before such celebration of marriage, if cele-
brated by a Popish priest, is to be null and
void : — Held, that a marriage celebrated in
1833 in Austria between a domiciled Irish
Protestant and an Austrian Catholic by a
Catholic priest in accordance with the cere-
monies of the Catholic Church, was a valid
marriage, inasmuch as section 1 of the Act
of 1745 while it was in force had no extra-
territorial operation. Swifte v. .itt.-Gen. for
Ireland (No. 1), 81 L. J. P.C. 158; [1912]
A.C. 276; 106 L. T. 3: 28 T. L. R. 199—
H.L. (Ir.).
Decision of the Court of Appeal in Ireland,
sub nom. Swifte v. Swifte ([1910] 2 Ir. R.
140), affirmed. lb.
c. Evidence.
Marriage after Banns — Evidence of Non-
residence.^ — In a suit for nullity on the ground
that the marriage, a marriage after banns,
was null and void because at the time the
parties were not resident in the parish in
which the banns had been published, no evi-
dence of such non-residence can be given.
Bodman v. Bodman, 108 L. T. 383; 57 S. J.
359; 29 T. L. R. 348— Bargrave Deane, J.
Jewish Marriage — Certificate Signed by
Secretary of Synagogue — Necessity for Adding
Statement that Secretary also Registrar.] —
A certificate of a Jewish marriage was signed
by Z., the secretary of the synagogue. Z.
was also the properly constituted registering
officer, but he did not state this fact on the
certificate. Observed, per Bargrave Deane, J.,
that the certificate should have been signed by
Z. as secretary and registrar, and that this
course must be adopted in future. Prager v.
Prager, 108 L. T. 734; 29 T. L. R. 556—
Bargrave Deane, J.
Marriage in Register Office in Ireland —
Certificate." — A marriage which has been duly
celebrated in a register office in Ireland may
be proved by the certificate of such marriage.
Guillet V. Guillet, 27 T. L. R. 416— Bargrave
Deane, J.
" Irregular " Marriage in Scotland — Extract
from Register Book.^ — The validity of a
marriage in Scotland by declaration in
presence of two witnesses, afterwards duly
registered pursuant to warrant of the Sheriff-
Substitute, is sufficienth' established in an
English Court by production of a copy of the
entry in the register, duly signed by the
Registrar, pursuant to section 2 of the
Marriage Law (Scotland) Amendment Act,
1856, without expert evidence of the law of
Scotland. Dreic v. Drew, 81 L. J. P. 85;
[1912] P. 175; 107 L. T. 528; 28 T. L. R.
479— Evans, P.
Parties Married in Hong Kong.l — Where a
marriage has been solemnised in Hong Kong
in accordance with the provisions of section 20
of No. 7 of the Ordinances of Hong Kong,
1875. it can be proved by the production of a
copy of the certificate of marriage whicli has
been signed and certified by the Registrar-
General as a true copy, and sealed and
stamped with his official seal. Smith v.
Smith, 109 L. T. 744— Bargrave Deane, J.
631
HUSBAND AND WIFE.
632
2. Legitimacy of Children.
Children of Marriage Validated by Deceased
Wife's Sister's Marriage Act.] — Notwith-
standing the fact that one of the parties to a
marriage with a deceased wife's sister has
died before the passing of the Deceased Wife's
Sister's Marriage Act, 1907, the children of
that marriage are legitimated by that Act.
Green, In re; Green v. Meinall, 80 L. J. Ch.
623 ; [1911] 2 Ch. 275 ; 105 L. T. 360 ; 55 S. J.
552; 27 T. L. E. 490— Warrington, J.
The spes successionis which the brother of
a person has during his lifetime to a share in
his property is not a right, title, estate, or
interest in expectancy in, to, or in respect of
property protected by section 2 of the Act. lb.
Legitimacy Suit — Costs — Successful Peti-
tioner— Attorney-General's Costs — Costs of
other Parties.] — In a legitimacy suit the
Attorney-General neither receives nor pays
costs, but the Court in view of all the circum-
stances of this suit, although giving judgment
in favour of the petitioner, ordered each of the
other parties to pav his own costs. Slingshy
V. Att.-Gen., 31 "T. L. R. 246— Bargrave
Deane, J.
3. Suits for Nullity.
a. Grounds for.
Incapacity — Non-consummation — Absence
of Cohabitation. 1 — Circumstances in which the
Court inferred the incapacity of the wife by
her persistent refusal to consummate the
marriage. F. v. F., 55 S. J. 482 ; 27 T. L. E.
429— Bargrave Deane, J. S.P. C. v. C,
27 T. L. E. 421— Bargrave Deane, J.
No Cohabitation — Wife's Persistent Refusal
to Cohabit and Refusal to take Medical Advice
or to Submit to Inspection — Inference of
Physical Impediment.! — The persistent refusal
of a wife, respondent to a petition for nullity
on the ground of physical incapacity, to
cohabit, coupled with her refusal to avail
herself of medical advice, entitles the Court
to draw the inference that there is more than
wilful refusal on her part and that physical
impediment also exists, and in the absence
of submission on her part to the usual order
for inspection, the husband being reported as
capable by the inspectors, to pronounce a
decree nisi annulling the marriage. W. v.
W., 81 L. J. P. 29; [1912] P. 78— Evans, P.
Impotence — Admitted Non-consummation —
No Apparent Defect in Either Party.] — If the
Court is satisfied that a marriage has not been
and that, quoad hanc et quoad hunc, it cannot
be consummated by the spouses, although
no impediment to consummation is clear or
apparent in either of them, the Court is justi-
fied in annulling the marriage. In a case of
this description, where there are cross-prayers
for relief, a decree nisi may be pronounced at
the suit of both parties, leaving both or
either of them to apply for the decree to be
made absolute. G. v. G., 81 L. J. P. 90;
[1912] P. 173; 106 L. T. 647; 28 T. L. R.
481 — Bargrave Deane, J.
Non-consummation — Incapacity not Inferred
— Wilful Refusal.] — The contract of marriage
implies not merely the ability, but also the
willingness, to consummate it. There is no
good reason why mere wilful refusal on the
part of a woman to consummate marriage
should not be a ground for annulling the
marriage — provided that such wilful refusal is
not a mere temporary unwillingness due to a
passing phase or the result of coyness, a feel-
ing of delicacy affected or real, or a nervous
ignorance which might be got rid of or cured
by patient forbearance, care, and kindness,
but a wilful, determined, and stedfast refusal,
likely or threatened to be persistent, to per-
form the obligations and to carry out the
duties which the matrimonial contract in-
volves. D. V. D. (or Dickinson v. Dickinson) ,
82 L. J. P. 121; [1913] P. 198; 109 L. T.
408; 58 S. J. 32; 29 T. L. E. 765— Evans, P.
A wilful and determined refusal to consum-
mate of a like kind on the part of a man
would confer the same right to relief on a
woman with whom he had passed through the
ceremony of marriage. 7b.
If either incapacity or unwillingness to carry
out the contract exists, and the Court finds a
suit for that purpose to be brought in good
faith, the contract is voidable at the suit of
the party conceiving himself or herself to be
wronged, and the parties are not to be left
bound by the tie until one of them is guilty
of matrimonial misconduct, giving the other
party a right to relief upon that ground. lb.
Wilful and persistent refusal to allow any
marital intercourse is not sufficient ground for
a decree of nullity of marriage where no
inference of incapacity is drawn. D. v. D.
(or Dickinson v. Dickinson) (82 L. J. P. 121;
[1913] P. 198) overruled. Decision of Sir
Samuel Evans, P. (84 L. J. P. 77; [1915]
P. 65), affirmed. Napier v. Napier, 84 L. J.
P. 177; [1915] P. 184; 113 L. T. 764;
59 S. J. 560; 31 T. L. E. 472— C.A.
b. Procedure.
Power of Court to Hear Case in Camera —
EfiFect of Order — Subsequent Publication of
Evidence.] — Courts of justice in this country
must administer justice in public. To justify
an order for a hearing in camera it must be
shewn that the paramount object of securing
that justice should be done would be rendered
doubtful of attainment if such order were not
made. It cannot be dealt with by the presiding
Judge as a matter resting in his individual
discretion as to what is expedient. The
Court established by the Matrimonial Causes
Act, 1857, for the hearing of matrimonial
causes was a new Court constituted with the
ordinary incidents of other English Courts
of justice, and therefore had no greater power
of hearing cases in camera than any other
Court, whatever may have been the previous
practice of the Ecclesiastical Courts abolished
by that statute. Scott v. Scott (No. 1),
82 L. J. P. 74 : [1913] A.C. 417 ; 109 L. T. 1 ;
57 S. J. 498; 29 T. L. R. 520— H.L. (E.)
In any case an order for a hearing in camera
extends only to the hearing, and does not pro-
633
HUSBAND AND WIFE.
634
I
hibit the subsequent publication of what
passed at such hearing, provided that such
publication be made in good faith and -without
malice. 76.
Decision of the Court of Appeal (81 L. J.
P. 113; [1912] P. 241) reversed. lb.
DiscoYcry — Liability of Person of Unsound
Mind not so Found, or his Guardian ad
Litem.] — A person prosecuting a suit for
nullity of marriage in this Division on behalf
of a person of unsound mind not so found by
inquisition is as compellable to disclose docu-
ments as the person on whose behalf the suit
is brought would be if he himself were pro-
secuting the same and of sound mind.
Paspati V. Paspati, 83 L. J. P. 56; [1914]
P. 110; 110 L. T. 751; 58 S. J. 400;
30 T. L. R. 390— Evans, P.
Decree Absolute — Delay.] — Semble, delay
in application is in the absence of other
reasons no ground for refusing a decree
absolute, where the only result would be to
put the petitioner to the expense of commenc-
ing proceedings de novo and filing a fresh
petition. Giannetti v. Giannetti, 82 L. J.
P. Ill; [1913] P. 137; 108 L. T. 1037;
57 S. J. 774; 29 T. L. R. 654— Evans, P.
Maintenance — Application by Respondent
" Wife " — " Husband's " Petition — Bigamy
of "wife" — "Marriage" Declared Null and
Void.] — It is enacted by section 1, sub-
section 1 of the Matrimonial Causes Act,
1907, that " The court may, if it thinks fit, on
any decree for dissolution or nullity of
marriage, order that the husband shall, to
the satisfaction of the court, secure to the
wife such gross sum of money or such annual
sum of money for any term not exceeding her
life as, having regard to her fortune (if any),
to the ability of the husband, and to the con-
duct of the parties, it may deem reasonable,
and for that purpose may refer the matter to
any one of the conveyancing counsel of the
court to settle and approve of a proper deed
or instrument to be executed by all necessary
parties, and the court may, if it thinks fit,
suspend the pronouncing of its decree until
such deed shall have been duly executed." A
petitioner obtained a decree for nullity of
marriage on the ground that at the time of
the ceremony the respondent had a husband
still living. An application was made that
he should be ordered to pay maintenance to
the respondent. The contention of the peti-
tioner, who opposed the application, was that
the Matrimonial Causes Act, 1907, under
which it was made, did not apply to marriages
that were void ah initio : — Held, that the
Court had power to order maintenance.
Ramsay v. Ramsay, 108 L. T. 382 — Bargrave
Deane, J.
Allowance for Woman — Amount —
Security.] — Section 1 of the Matrimonial
Causes Act, 1907, gives the Court power, after
a decree of nullity on the ground of impotence,
to order the man to make an allowance to the
woman, although there has been a finding
against both of them, and, where security
can be given, to order the whole or any part
of such allowance to be secured. Gtillan v.
Gullan, 82 L. J. P. 118; [1913] P. 160;
109 L. T. 411— Evans, P.
Semble, the amount of the allowance is in
the discretion of the Court on the facts of each
case, but will not be regulated by the scale
obtaining in cases of dissolution. lb.
Permanent Maintenance — Dum Sola
Clause — Reduced Amount on Re-marriage. ^ —
The Court has power in nullity suits to fix
permanent maintenance dum sola, and to
reduce amount on re-marriage. Marigold v.
Marigold, 55 S. J. 387— Evans, P.
4. Action fob Breach of Promise of
Marriage.
Special Damage — Giving up Business —
Pecuniary Loss — Liability of Executor.] — A
pecuniary loss suffered by a woman through
giving up an employment or business in con-
templation of marriage, or any similar loss
sustained by her in such circumstances, can-
not properly be treated as special damage
flowing from a breach of the promise to marry
her, and cannot be recovered in an action
against the executor of the promisor. Quirk
V. Tliomas {Executor of), 84 L. J. K.B. 953;
[1915] 1 K.B. 798; 113 L. T. 239; 59 S. J.
350; 31 T. L. R. 237— Lush, J.
Belief that Plaintiff Unfit for Marriage —
Whether a Defence.] — In an action for breach
of promise of marriage the plea that the
defendant honestly and on reasonable grounds
believed the plaintiff to be unfit for marriage
is no defence in law if the plaintiff was not
in fact unfit for marriage, but such a belief
may affect the amount of the damages.
Jefferson v. Paskell, 32 T. L. R. 69— C.A.
5. Eestitdtion op Conjugal Eights.
a. Jurisdiction.
The Matrimonial Causes Act, 1884, has
altered the consequences of disobedience to a
decree for restitution of conjugal rights, but
does not affect the question of service out of
the jurisdiction of a petition in that form.
The jurisdiction to decree restitution arises
from the Matrimonial Causes Act, 1857. The
joint operation of sections 41 and 42 of that
Act negatives jurisdiction to order service
out of the jurisdiction of the petition and
citation where this class of relief is claimed.
Semble, the domicil of the respondent is imma-
terial. Firebrace v. Firebrace (47 L. J. P. 41 ;
4 P. D. 63) approved and followed. Dicks v.
Dicks (68 L. J. P. 118; [1899] P. 275)
dissented from. De Gasquet James (Countess)
V. Mecklenburg-Schwerin (Duke), 83 L. J. P.
40 ; [1914] P. 53 ; 110 L. T. 121 ; 58 S. J. 341 ;
30 T. L. R. 329— Evans, P.
Apart from the question of service out of
the jurisdiction the Court has no jurisdiction
to entertain a suit for restitution against a
respondent not domiciled in England and not
635
HUSBAND AND WIFE.
636
resident in England at the time of the insti-
tution of the suit. lb.
Qufere, whether after due service, and where
jurisdiction exists to pronounce a decree, that
decree can be served upon the respondent out
of the jurisdiction. lb.
The principle of the decision in De Gasquet
James (Countess) v. Mecklenburg-Schwerin
(Duke) (83 L. J. P. 40; [1914] P. 53),
negativing power in the Court to order service
of process out of the jurisdiction in a suit for
restitution of conjugal rights, is restricted to
the case of a respondent not domiciled or
resident in England at the time of the institu-
tion of the suit, or, sembJe, who had not a
matrimonial home in England at the date when
cohabitation ceased. Where it appears from
the petition that the parties were domiciled in
England at the time of the institution of the
suit, or that they had a matrimonial home in
England at the date when cohabitation ceased,
or that they were both resident in England
at the time of the institution of the suit, the
petition and citation may be served either
within or without his Majesty's dominions,
and in any event a decree for restitution of
conjugal rights may be so served if made in a
suit which there was jurisdiction to entertain.
Additional Divorce Rules 221 and 222 will
regulate the practice so laid down. Perrin v.
Perrin; Powell v. Powell. 83 L. J. P. 69;
[1914] P. 135 ; 111 L. T. 335; 30 T. L. R. 497
— Evans, P.
b. Demand.
Written Demand by Solicitor.] — With
reference to petitions for restitution of conjugal
rights, Divorce rule 175 runs : " The affidavit
filed with the petition, as required by rule 2,
Bhall further state sufficient facts to satisfy
one of the Registrars that a written demand
for cohabitation and restitution of conjugal
rights has been made by the petitioner upon the
party to be cited, and that, after a reasonable
opportunity for compliance therewith, such
cohabitation and restitution of conjugal rights
have been withheld." The " written demand
in accordance with the above rule should be
conciliatory in tone and devoid of any threat :
the spirit and not the letter of the rule should
be observed. Neumann v. Neumann^ 108 L. T.
48; 57 S. J. 228; 29 T. L. R. 213— Bargrave
Deane. J.
c. When Decree will be Granted.
Previous Order Obtained from Magistrate on
Account of Husband's Desertion — Non-cohabi-
tation Clause — Whole Order Subsequently
Discharged on Wife's Application.] — In 1904
a wife, who had been deserted by her husband,
obtained a summary order for maintenance.
The usual non-cohabitation clause was inserted
in the order, but without the knowledge
or approval of the applicant. In 1912 the
entire order was discharged upon the wife's
application. Subsequently she petitioned in
the High Court for restitution of conjugal
rights. The Court granted her a decree for
restitution. Niland v. Niland. 108 L. T. 50;
57 S. J. 248— Evans, P.
Petitioner Guilty of Physical Violence,
but not of Cruelty.] — In a suit by a wife for
restitution of conjugal rights the husband
alleged that the petitioner drank to excess,
and, further, that she had been guilty of
cruelty towards him. The jury found — first,
that the petitioner had been guilty of physical
violence to the respondent , but not of cruelty ;
secondly, that the petitioner drank to excess;
thirdly, that it was not unsafe at the time the
respondent left the petitioner for the parties
to live together : — Held, that a decree of resti-
tution of conjugal rights should be refused.
Butland v. Butland, 29 T. L. R. 729—
Bargrave Deane, J.
Petition by Wife — No Adultery by Petitioner
— Opposition to Decree on Ground of Wife's
Conduct — Grant of Decree.] — In a suit by a
wife for restitution of conjugal rights, where
the husband alleged that the wife's conduct,
though she had not been guilty of adultery,
had been such as to disentitle her to a decree,
the Court declined, on a consideration of all
the circumstances, to exercise its discretion
by refusing to grant a decree. Fletcher v.
Fletcher, 31 T. L. R. 306— Evans, P.
Separation Deed — Subsequent Bankruptcy
of Husband.] — A husband and wife entered
into a deed of separation which included a
covenant that neither party should endeavour
to compel the other to live with him or her
by any proceeding for restitution of conjugal
rights, and a further covenant by the husband
to pay the wife 300Z. a year for her maintenance
and support. Subsequently the husband
became bankrupt and obtained his discharge :
— Held, that in these circumstances the wife
was not precluded by the covenant in the deed
from instituting a suit for restitution of
conjugal rights. McQuiban v. McQuiban,
83 L. J. P. 19: [1913] P. 208; 109 L. T. 412;
29 T. L. R. 766— Evans, P.
d. Procedure and Practice.
Service of Process and Decree — Domicil —
Residence — Matrimonial Home — New Divorce
Rules. 1 — The principle of the decision in
De Gasquet James (Countess) v. Mecklenburg-
Schwerin (Duke) (infra), negativing power in
the Court to order service of process out of
the jurisdiction in a suit for restitution of con-
jugal rights, is restricted to the case of a
respondent not domiciled or resident in Eng-
land at the time of the institution of the suit,
or, semble, who had not a matrimonial home
in England at the date when cohabitation
ceased. Where it appears from the petition
that the parties were domiciled in England
at the time of the institution of the suit, or
that they had a matrimonial home in England
at the date when cohabitation ceased, or that
they were both resident in England at the
time of the institution of the suit, the petition
and citation may be served either within or
without his Majesty's dominions, and in any
event a decree for restitution of conjugal rights
may be so served if made in a suit which there
was jurisdiction to entertain. Additional
Divorce Rules 221 and 222 will regulate the
practice so laid down. Perrin v. Perrin;
Powell V. Powell, 83 L. J. P. 69; [1914]
P. 135; 111 L. T. 335; 30 T. L. R. 497—
Evans, P.
637
HUSBAND AND WIFE.
638
The Matrimonial Causes Act, 1884, has
altered the consequences of disobedience to a
decree for restitution of conjugal rights, but
does not affect the question of service out of
the jurisdiction of a petition in that form.
The jurisdiction to decree restitution arises
from the Matrimonial Causes Act, 1857. The
joint operation of sections 41 and 42 of that
Act negatives jurisdiction to order service out
of the jurisdiction of the petition and citation
where this class of relief is claimed. Sernble,
the domicil of the respondent is immaterial.
Firebrace v. Firebrace (47 J. P. 41 ;
4 P. D. 63) approved and followed. Dicks v.
Dicks (68 L. J. P. 118; [1899] P. 275)
dissented from. De Gasquet James (Countess)
V. Mecklenburg-Schiverin (Duke), 83 L. J. P.
40 : [1914] P. 53 ; 110 L. T. 121 ; 58 S. J. 341 ;
30 T. L. K. 329— Evans, P.
Apart from the question of service out of
the jurisdiction the Court has no jurisdiction
to entertain a suit for restitution against a
respondent not domiciled in England and not
resident in England at the time of the institu-
tion of the suit. lb.
Qucere, whether after due service, and where
jurisdiction exists to pronounce a decree, that
decree can be served upon the respondent out
of the jurisdiction. 76.
Apart from special statutory provision, such
as the Legitimacy Declaration Act, 1858
(21 & 22 Vict. c. 93), the Court has no power
to entertain a petition for or pronounce a
declaration of the validity of a marriage.
Such power, being absent in the Ecclesiastical
Courts, is not supplied by the operation of
Order XXV. rule 5. lb.
Where a sealed copy of a petition for the
restitution of conjugal rights and a copy of
the citation had been duly served upon the
respondent in Ireland, the Court granted a
decree, although no leave had been previously
obtained, for service out of the jurisdiction.
Bateman v. Bateman (70 L. J. P. 29; [1901]
P. 136) not followed. Buckley v. Buckley, 107
L. T. 590; 67 S. J. 9— Evans, P.
Answer by Husband Alleging Wife's Adultery
— Reply by Wife Alleging Husband's Adultery
— Relevancy — " Compensatio criminis."] —
Where a wife petitions for restitution of con-
jugal rights and the husband by his answer
alleges adultery by the wife but does not
himself ask for any relief, an allegation by
the wife in her reply that the husband has
committed adultery is irrelevant by way of
rebuttal of the husband's answer, is no ground
in support of her petition, and should be struck
out. Brooking Phillips v. Brooking Phillips,
82 L. J. P. 57: [1913] P. 80; 108 L. T. 397;
29 T. L. R. 288— C. A.
The doctrine of compensatio criminis is not
now recognised by the law, and the rule laid
down in Seaver v. Seaver (2 Sw. & Tr. 665)
has no longer any application in England since
the Matrimonial Causes Acts, 1857 and
1884. lb.
Petition by Wife — Refusal of Compliance by
Husband — Periodical Payments by Husband —
For " joint lives " or "for life of vtfife " —
Discretion.] — Bv section 2 of the Matrimonial
Causes Act, 1884, it is enacted : " From and
after the passing of this Act a decree for
restitution of conjugal rights shall not be
enforced by attachment, but where the applica-
tion is by the wife the Court may, at the time
of making such decree, or at any time after-
wards, order that in the event of such decree
not being complied with within any time in
that behalf limited by the Court, the respon-
dent shall make to the petitioner such periodical*
payments as may be just, and such order
may be enforced in the same manner as an
order for alimony in a suit for judicial separa-
tion. The Court may, if it shall think fit,
order that the husband shall, to the satisfaction
of the Court, secure to the wife such periodical
payment, and for that jrarpose may refer it
to any one of the conveyancing counsel of the
Court to settle and approve of a proper deed or
instrument to be executed by all necessary
parties." A wife, aged forty-two, having
obtained a decree for restitution of conjugal
rights, petitioned for periodical payments to be
secured to her by the respondent. The
Registrar by his report submitted that the
husband, who was seventy-seven years of age,
should be ordered to secure periodical payments
at the rate of 60/. per annum "' during their
joint lives." On a motion to vary the report
to the effect that the periodical payments should
be secured to the wife for her life, — Held,
that the Court had a discretion as to the dura-
tion of time for the payments, and that,
having regard to the respective ages of the
parties, the report should be varied as prayed.
Clutterbuck v. Clutterbuck, 108 L. T. .573;
57 S. J. 463; 29 T. L. R. 480— Bargrave
Deane, J.
Non-compliance with Decree — Periodical
Payments — Analogy to Alimony — Duration of
Payments.] — An order for periodical payments
made under the Matrimonial Causes Act, 1884,
s. 2, is a personal order against the respondent
who has failed to comply with a decree for
restitution of conjugal rights, and enforceable
in the same manner as an order for alimony
in a suit for judicial separation. The pay-
ments are analogous to alimony, depending on
the means of the parties, and the Court has
power by section 4 to modify them. These
considerations shew that it was not the inten-
tion of the statute to make the payments under
section 2 to extend for a longer period than
that of the alimony, which would be a conse-
quence of proceeding for a judicial separation
as a remedy for the same non-compliance
under section 5, and which would be limited
to the joint lives of the jiarties. The power of
the Court to order security to be given for the
payments does not alter their character, which
the statute expresses to be variable as that
of alimony. Clutterbuck v. Clutterbuck
(29 T. L. R. 480; 108 L. T. 573) disapproved.
Tangye v. Tangye, 83 L. J. P. 164; [1914]
P. 201; 111 L. T. 944; 58 S. J. 723;
30 T. L. R. 649— Evans, P.
Wife's Suit — Decree — Husband Serving with
Army Abroad — Decree to Lie in Office.] —
In :i wife's suit for restitution of conjugal
rights, wliere it was shewn that the respon-
dent, who was in the Army, was serving
abroad at the time of the hearing of the suit,
639
HUSBAND AND WIFE.
640
the Court pronounced a decree and directed
that it should remain in the office and should
not be served till further order. Lang v.
Lang, 59 S. J. 561; 31 T. L. E. 467—
Evans, P.
II. DIVORCE.
See also Vol. VIL 730, 1772.
1. JUKISDICTION AND DuTY OF COURT.
Co-respondent an Indian Native Prince —
Extra-territoriality — Status of Sovereign.] —
The native princes of India, falling within the
class referred to in section 18, sub-section 5
of the Interpretation Act, 1889, though not
independent, but subject to the suzerainty of
His Majesty, are reigning sovereigns to the
extent that they are immune from the juris-
diction of an English Court. An Indian prince,
coming within this category and sued as co-
respondent in a suit for divorce, was on his
application struck out of the proceedings.
Statham v. Statham, 81 L. J. P. 33; [1912]
P. 92; 105 L. T. 991; 28 T. L. R. 180—
Bargrave Deane, J.
Marriage in England between Englishwoman
and Domiciled Mexican — Irregularity by
Mexican Law.] — The petitioner, an English-
woman, married in England a domiciled
Mexican. By Mexican law a marriage is not
valid in Mexico unless it is registered by one
or other of the parties to it. The marriage of
the petitioner and respondent had not been
registered in Mexico. The petitioner, by
registering the marriage in Mexico, could have
obtained a judicial separation, a decree of
divorce not being granted in that country.
The petitioner having brought a suit for
divorce in this country on the ground of the
respondent's adultery, cruelty, and deser-
tion : — Held, that as the respondent's domicil
was Mexican, the Court had no jurisdiction
to entertain the suit. Ramos v. Ramos,
27 T. L. R. 515— Bargrave Deane. J.
Marriage in England of Domiciled Greek
and Englishwoman — Marriage Invalid by
Greek Law — Change of Domicil — Original
Status.'' — A wife, before her marriage domiciled
in England, who has contracted in England
a marriage valid in English law with a
domiciled foreigner, and has thereby acquired
the domicil of her husband, is nevertheless,
upon the marriage being annulled by the Court
of her husband's domicil, for a cause unknown
to English law, remitted to her original
domiciU and thereby obtains the right to sue
in the English Court for breaches of matri-
monial obligations, recognised by English law,
in the same manner as if her domicil had
remained unchanged. Stathatos v. Stathatos,
82 L. J. P. 34; [1913] P. 46: 107 L. T. 592;
56 S. J. 114; 29 T. L. R. 54— Bargrave
Deane, J.
A domiciled Englishwoman validly married
in England to a domiciled Greek, who later
deserted her and obtained from the Court of
his (Greek) domicil a decree of nullity on the
ground that no Greek priest had been present
at the ceremony, was held thereby remitted to
her English domicil, entitling her to a divorce
in England on the grounds of the desertion
and adultery of her husband, who had married
and cohabited with a second wife in Greece.
The suggestion of the Court of Appeal in
Ogden v. Ogden (77 L. J. P. 34, at p. 51;
[1908] P. 46, at pp. 82, 83) adopted and
followed. lb.
See also De Montaigu v. De Montaigu,
post, col. 739.
Deed of Separation — Covenant not to Sue —
Provision for Avoidance of Deed by Subsequent
Judicial Separation or Dissolution on Ground
of Subsequent Misconduct of Husband — Effect
of Subsequent Misconduct on Covenant not to
Sue — Circuity of Proceedings.] — A husband
was guilty of cruelty and adultery. He and
his wife then separated under the provisions
of a deed which contained a mutual covenant
for the condonation of antecedent offences, with
a covenant not to sue in respect of them, and
a further provision that all the covenants of
the deed should be avoided by any further
misconduct of the husband resulting in a
judicial separation or dissolution of the
marriage : — Held, that, although subsequent
adultery of the husband could not per se
revive his expressly condoned offences so as
to permit his wife to sue in respect of them,
nevertheless, as he did not set up the deed,
his wife need not be put to the circuitous
method of obtaining redress by first suing for
a judicial separation on the ground of the
subsequent adultery and then suing for dis-
solution from which the covenant in the deed
debarred her previous to a judicial separation,
and that she could proceed at once for dissolu-
tion. Bourne v. Bourne, 82 L. J. P. 117 ;
[1913] P. 164; 108 L. T. 1039; 29 T. L. R.
657— Evans, P.
Bowling v. Dowling (68 L. J. P. 8; [1898]
P. 228) followed ; the ratio decidendi of the
same case doubted. lb.
Desertion.] — The Court granted a decree
nisi for divorce at the instance of a wife on
the ground of her husband's adultery and
desertion where, after the parties had lived
apart under a deed of separation, the husband,
by his conduct, repudiated the deed. Hussey
V. Hussey, 109 L. T. 192; 29 T. L. R. 67^—
Evans, P.
"Wife's Petition for Divorce — Clause in
Separation Deed — Bar to Relief — Grant of
Judicial Separation.] — On a wife's petition
for divorce on the grounds of her husband's
cruelty and adultery it was proved that the
parties had entered into a separation deed,
and evidence of cruelty before the deed, and
of adultery after it, was given. The deed
provided in clause 3 that neither party should
bring against the other any proceedings relat-
ing to their relationship of husband and wife,
and in clause 9 that in the event of a divorce
or judicial separation by reason of misconduct!
occurring after the date of the deed the provi-
sions thereinbefore contained should become
void, but without prejudice to any act pre-
viously made or done thereunder or to any
pledges on the part of either party in respect
of any then antecedent breach of any covenant
or provision therein contained. As the wife
was debarred by the deed from relying on
641
HUSBAND AND WIFE.
642
antecedent cruelty, the Court only granted her
a judicial separation on the ground of adultery.
Lipman v. Lipman, 60 S. J. 157 ; 32 T. L. R.
173 — Horridge, J.
2. Cruelty.
Communication of Venereal Disease — Com-
munication Knowingly, Wilfully, or Recklessly
— Onus of Proof.] — In order to establish a
charge of cruelty arising from the communi-
cation of a venereal disease, it is sufficient to
prove in the first instance that the petitioner
has had no intercourse with a third person
and has in fact suffered from the disease.
The onus then lies upon the respondent to
prove that he was ignorant or innocent or
otherwise not guilty of the legal cruelty con-
stituted by the communication of the disease.
Morphett v. Morphett (38 L. J. P. 23;
L. R. 1 P. & D. 702) disapproved. The dis-
senting judgment of Willes, J., in that case
adopted. Broicning v. Browning, 80 L. J. P.
74; [1911] P. 161; 104 L. T. 750; 55 S. J.
462; 27 T. L. R. 404— Evans, P.
Pleading.] — Allegations in pleading that
the respondent knowingly, wilfully, or reck-
lessly communicated the disease are unneces-
sary. 76.
Covenant Prohibiting Proceedings for Prior
Matrimonial Offences — Husband's Subsequent
Adultery — Petition for DiYorce by Wife —
Cruelty Revived — Deed not Set up by
Husband.] — A wife, who had entered into a
deed of separation with her husband by which
both parties covenanted not to institute pro-
ceedings in respect of matrimonial offences
committed prior to the deed, petitioned for a
divorce on account of the husband's subse-
quent adultery. It was contended that the
condoned cruelty of the husband was thereby
revived and that she was entitled to a decree :
— Held, that as the husband had not set up
the deed a decree could be granted to the wife.
Dou-ling v. Bowling (68 L. J. P. 8 ; [1898]
P. 228) considered and followed. Bourne V.
Bourne, 82 L. J. P. 117; [1913] P. 164;
108 L. T. 1039; 29 T. L. R. 657— Evans, P.
3. Desertion.
Petition for Judicial Separation — Adultery
and Desertion — Supplemental Petition for
Dissolution — Two Years' Desertion not Com-
plete at Date of Petition.] — A wife presented
a petition for judicial separation on the
ground of her husband's adultery. Before the
petition was heard she presented a supple-
mental petition for dissolution of marriage on
the ground of her husband's adultery and
desertion for two years. At the date of the
presentation of the original petition the deser-
tion had been for eighteen months only : —
Held, that there had not been desertion with-
out reasonable excuse for two years, as the
presentation of the original petition for
judicial separation prevented the subsequent
desertion being without excuse. Lapinqton V.
Lapinnton (58 L. J. P. 26; 14 P. D. 2i), Kay
V. Kay (73 L. J. P. 108; [1904] P. 382), and
Harriman v. Harriman (78 L. J. P. 62;
[1909] P. 123) followed. Stevenson v.
Stevenson, 80 L. J. P. 137; [1911] P. 191;
105 L. T. 183; 27 T. L. R. 547— C. A.
Deed of Separation — Failure of Husband in
Payment of Allowance.] — A husband having
threatened to break up the home, which led to
the execution of a deed of separation, failed to
keep up the payments under the deed. In the
circumstances of the case, having also com-
mitted adultery, he was held guilty of desertion.
But queer e, whether in all cases mere failure
to pay will avoid the consequences of a deed.
Smith V. Smith, So L. J. P. 16; [1915] P. 288 ;
60 S. J. 25 ; 32 T. L. R. 43— Horridge, J.
Separation Order by Justices — Two Years'
Desertion before Order — Subsequent Adultery
by Husband.] — A wife obtained from Justices
an order under the Summary Jurisdiction
(Married Women) Act, 1895, in respect of her
husband's desertion for over two years, and
that order contained a non-cohabitation clause.
Subsequently she discovered that her husband
had committed adultery. She then filed a
petition for divorce : — Held, that as there had
been desertion for more than two years at
the time when the separation order was made,
and as the husband had committed adultery,
the wife was entitled to a decree. Churner v.
Churner, 28 T. L. R. 318— Evans, P.
Statutory Desertion — Revival of Condoned
Adultery.] — The offence of statutory desertion
arising under section 5 of the Matrimonial
Causes Act, 1884, for non-compliance with a
decree for restitution of conjugal rights has
for the purpose of revival the same effect as
desertion in fact for two years and upwards
and will revive antecedent adultery which has
been condoned. Price v. Price, 80 L. J. P. 145 ;
[1911] P. 201 ; 105 L. T. 441 ; 55 S. J. 689 ;
27 T. L. R. 560— Evans, P.
Separation Deed — Repudiation.] — See
Hussey \. Hussey, ante, col. 640.
4. Bars to.
a. Generally.
Suppression of Material Facts — Intervention
of King's Proctor — Fresh Allegations by
Petitioner in Answer to King's Proctor's Plea
— Discretion of Court to Rescind or Suspend
Decree Nisi or Adopt Intermediate Course —
Further Enquiry — Definition of " Material
facts" — Purpose of Exercise of Discretion.! —
On an intervention by the King's Proctor,
even where material facts have been withheld
or deliberately suppressed at the original hear-
ing of the petition, the Court must consider
all the facts then established by either the
King's Proctor or the petitioner before deciding
whether it will rescind the decree nisi or
exercise a discretion under section 31 of the
Matrimonial Causes Act, 1857, or adopt some
intermediate course which would necessitate
a further enquiry in order to ascertain the
true facts. Brooke v. Brooke (No. 1),
81 L. J. P. 75: [1912] P. 136: 106 L. T. 766;
56 S. J. 882; 28 T. L. R. 314-Evans, P.
21
643
HUSBAND AND WIFE.
644
The suppression of material facts is of grave
importance, and even when innocent may bring
about the rescission of a decree nisi. lb.
All facts are material which the Court ought
to know and weigh when determining how its
discretion should be exercised. The Court has
to deal with cases as justice may require,
not regarding merely the parties themselves
and other persons, such as issue whose in-
terest is more remote, but what is right in the
interests of public decency and the State.
To this end the Court may rescind the decree
nisi or suspend its operation or direct that
notice of any fresh allegations made by a
petitioner in answer to the King's Proctor's
plea should be served upon the respondent to
enable the King's Proctor to make further
investigation and to lay before the Court all
that it should know to guide the exercise of
its discretica. Roche v. Roche (74 L. J. P. 50;
[1905] P. 142) disapproved. 7b.
Adultery of Petitioner — Application for
Exercise of Discretion of Court.] — Although
the discretion given to the Court by section 31
of the Matrimonial Causes Act, 1857, is
unfettered, the Court ought to be extremely
careful in exercising that discretion, not only
with respect to the parties concerned in the
particular case, but also in the interests of
public morality. Circumstances in which the
Court exercised its discretion in favour of a
petitioner who had not disclosed the fact of
her own adultery. Brooke v. Brooke (No. 2).
81 L. J. P. U7n. ; [1912] P. 205j!. ; 107 L. T.
202: 28 T. L. R. 577— Evans, P.
Where it is shewn that the misconduct of a
petitioner has been fully forgiven and com-
pletely condoned by the respondent, the Court
ought to exercise its discretion in favour of
the petitioner, unless there are special or
aggravating circumstances in the case or unless
strong overriding public reasons exist for
denying the relief claimed. The Court refused
to exercise its discretion in favour of a
petitioner where it was not satisfied as to the
fact of condonation, and where it was satisfied
that the petitioner had given false testimony
on oath. Munzer v. Munzer. 81 L. J. P.
148ti. ; 107 L. T. 203: 57 S. .J. 45 : 28 T. L. E.
596— Evans. P.
On an undefended petition filed by the wife
on the grounds of the cruelty and misconduct
of the husband, consisting of an isolated act
after his wife had left him, a decree nisi was
pronounced, but was subsequently rescinded
on the intervention of the King's Proctor
alleging the adultery of the wife. Condonation
and re-cohabitation followed. On further and
subsequent misconduct on the part of the wife
a decree nisi was pronounced upon the petition
of the husband, the Court exercising the dis-
cretion conferred on it by section 31 of the
Matrimonial Causes Act, 1857, in his favour
upon the facts as stated, and expressly laying
down that each case should be dealt with on
its own merits and that the exercise of the
discretion of the Court should be fettered by
no strict rule of law. Woltereck v. Woltereck,
81 L. J. P. 145 : ri912] P. 201 ; 107 L. T. 27 :
66 S. J. 706; 28 T. L. R. 532— Evans, P.
In exercising the discretion given it by
section 31 of the Matrimonial Causes Act.
1857, to pronounce a decree of dissolution at
the instance of a petitioner guilty of adultery,
the Court does not treat the sexes on an equal
footing. That which would not be excusable
in the man may be excusable in the woman,
and when the adultery has resulted from her
husband's treatment she may retain a decree
obtained on the ground of his misconduct, even
although she has concealed her own fault from
the Court and committed perjury in denying
it, provided that the Court is of opinion on
the facts that leniency towards the erring
petitioner mav result in her moral re-instate-
ment. Pretty v. Pretty. 80 L. J. P. 19;
[1911] P. 83: 104 L. T. 79; 27 T. L. R. 169
— Bargrave Deane, J.
A wife petitioner obtained a decree nisi for
the dissolution of her marriage on the grounds
of the adultery and cruelty of her husband.
At the hearing of her petition, she was
advised, in view of her denial of actual mis-
conduct, that no disclosure was to be made
of circumstances communicated by her to her
solicitor, in consequence of which, on the sub-
sequent hearing of an intervention by the
King's Proctor, a jury, disbelieving her denial
on oath, found her guilty of adultery and of
suppression of material facts : — Held, never-
theless, that, having regard to her future in
life, and to the fact that her misconduct had
been brought about by the treatment of her
husband, the case was one fit for the exercise
of the discretion of the Court in her favour.
The Court expressed disapproval of the course
adopted at the original hearing. lb.
In the exercise of its discretion under sec-
tion 31 of the Matrimonial Causes Act, 1857
(20 & 21 Vict. c. 85), the Court is not bound
by any rigid rules, but will consider every
case entirely upon its own merits. Bullock v.
Bullock, 103 L. T. 847— Evans, P.
The Court, while allowing an intervention
by the King's Proctor, exercised its discretion
in favour of the petitioner, who had been guilty
of desertion, but ordered him to pay a weekly
sum to the respondent, with liberty to apply
to rescind or vary that order. Freeman v.
Freeman, 105 L. T. 383; 27 T. L. R. 523—
Evans, P.
The Court exercised its discretion in favour
of a husband guilty of misconduct which he
had not kept back from the Court, when his
guilty wife had condoned such misconduct and
had by her persistent refusal to cohabit con-
duced to it. Habra v. Habra, 83 L. J. P. 54;
[1914] P. 100 ; 110 L. T. 991 ; 30 T. L. R. 391
— Bargrave Deane, J.
On a wife's petition for divorce, the Court,
being satisfied that but for the husband's
gross misconduct she would not have com-
mitted adultery, exercised its discretion by
granting her a decree nisi, notwithstanding
her adultery. Cleland v. Cleland, 109 L. T.
744 ; 58 S. J. 221 ; 30 T. L. R. 169— Bargrave
Deane, J.
In the special circumstances of the case, on
the promise to marry her of the man with
whom she had misconducted herself, a wife's
decree for divorce was allowed to be made
absolute, the Court exercising its discretion in
her favour, in spite of the intervention of
the King's Proctor, on the grounds that the
petitioner had suppressed material facts and
645
HUSBAND AND WIFE.
646
I
denied the misconduct on oath, being thereby
guilty of perjury. The Court intimated that
in future the discretion would only be exercised
in favour of petitioner's making full dis-
closure. Harnpson v. Hampson, 83 L. J. P.
53; [1914] P. 104: 110 L. T. 992; 58 S. J.
474; 30 T. L. li. 392— Bargrave Deane, J.
Semhle, misconduct of a petitioner should
not only be disclosed at the hearing, but also
admitted in the petition. Ih.
Circumstances in which the Court will
exercise its discretion by refusing to rescind
a decree nisi on the ground that material
facts have been withheld from the knowledge
of the Court. Barrett v. Barrett, 30 T. L. R.
C3— Evans, P.
Circumstances in which the Court will
exercise its discretion in favour of a guilty
petitioner considered. Coverdale v. Coverdale,
30 T. L. R. 20— Evans, P.
A petitioning wife who had herself been
guilty of adultery was granted a decree nisi for
divorce in the exercise of the discretion of the
Court upon evidence being given that a man
with whom she had lived was willing to marry
her. Hale v. Hale, 32 T. L. R. 53— Bargrave
Deane, J.
On a divorce petition by a husband who
had been guilty of adultery which tad been
condoned, the Court granted a decree nisi on
the terms that the petitioner's father should
enter into a deed making an allowance to the
wife. Strutt v. Strutt, 31 T. L. R. 156—
Evans, P.
The Court, in the exercise of its discretion,
granted a decree nisi to a petitioning husband,
though he had himself been guilty of adultery
on two isolated occasions. CUitterhuck v.
Clutterbuck, 31 T. L. R. 614— Horridge, J.
On the hearing of a wife's petition for a
divorce from her husband on the ground of his
desertion and adultery, where it appeared that
the petitioner had herself been living in
adultery with a man who was now willing
to marry her, the Court came to the conclusion
that the husband's conduct ought not to have
conduced to the wife's adultery, and refused
to exercise its discretion in her favour.
Goddard v. Goddard, 31 T. L. R. 616—
Horridge, J.
After a long separation from his wife, her
husband, the present petitioner for dissolution
on the ground of her adultery, himself com-
mitted an isolated act of misconduct, resulting
in the birth of a child. There had been no
condonation on the wife's part by reason of
the separation, and the husband believed him-
self a widower. On the intervention of the
King's Proctor the Court, although there had
been no disclosui-e at the hearing, exercised its
discretion on the grounds of public morality,
and in the interest of the woman with whom
misconduct had been committed and her child,
and allowed the decree nisi to stand. Schofield
V. Schofield, 84 L. J. P. 186; [1915] P. 207;
112 L. T. 1000; 31 T. L. R. 236— Evans, P.
Where a wife had obtained a decree nisi for
a divorce on the ground of her husband's
cruelty and adultery, and the King's Proctor,
on the ground of the wife's adultery, inter-
vened to shew cause why the decree should not
be made absolute, but was satisfied that the
husband's conduct had conduced to the wife's
adultery, the Court exercised its discretion in
favour of the petitioner and made the decree
absolute. Firman v. Firman, 32 T. L. R. 50
— Evans, P.
Terms.] — The petitioning husband had
been guilty of adultery, which had been con-
doned, and the Court exercised its discretion in
the petitioner's favour on the terms that before
the decree nisi was made absolute he should
secure a weekly allowance to the respondent.
Fremantle v. Fremantle, 31 T. L. R. 180—
Evans, P.
No Admission in Petition — Pleading — Dis-
cretion of the Court to Grant Relief.]— In
cases where the Court is asked to exercise its
discretion under the Matrimonial Causes Act,
1857, s. 31, to grant a decree to a petitioner
who has been guilty of misconduct, that guilt
must be expressly admitted in the petition and
the exercise of the discretion specifically asked
for in the prayer of the petition. King v.
King, 84 L. J. P. 80; [1915] P. 88; 112 L. T.
1047 ; 59 S. J. 334 ; 31 T. L. R. 240— Bargrave
Deane, J.
b. Condonation.
Condonation not Pleaded — Powers of Judge. 1
Where in a suit for divorce condonation is not
pleaded, but becomes an issue in the course of
the trial, the Judge and not the jury can find
whether there has been condonation or
not. Moosbrugger v. Moosbrugger (No. 2),
109 L. T. 192; 29 T. L. R. 71-5- Evans, P.
c. Collusion.
Collusion is an improper act done by a
petitioner with another person, or an improper
refraining from an act with a dishonest pur-
pose. It amounts to misconduct which will
deprive a party of a decree to which he or
she would otherwise on the facts be entitled.
Scott V. Scott (No. 2), 82 L. J. P. 39; [1913]
P. 52 ; 108 L. T. 49 ; 57 S. J. 227 ; 29 T. L. R.
206— Bucknill, J.
A petitioning wife, who had already obtained
a decree of judicial separation on the ground
of her husband's desertion, accepted his offer
of a sum of money to be paid at once, a further
like sum on decree absolute, and an increase
of her allowance if she would proceed for a
dissolution of marriage on the further ground
of her husband's adultery, the means of
proving which were furnished to her : — Held,
that there was no collusion. lb.
5. Custody of and Access to Children.
See also Vol. VII. 789, 1793.
Right of Access of Divorced Mother — Age
of Child — Discretion — Mother Living in
Adultery.] — Although the former rule that a
guilty mother who has been divorced by her
husband cannot be allowed access to the child
of the marriage against the husband's wish
is no longer the law, the Court has a discre-
tion to permit such access. Where the child
was a boy eight years of age, about to be
sent to school, and the mother was living
647
HUSBAND AND WIFE.
648
in adultery with the co-respondent, the Court
refused to order that she should be allowed
access. Mozley Stark v. Mozley Stark
(79 L. J. P. 98; [1910] P. 190) distinguished.
Clarke v. Clarke, 57 S. J. 644— C.A.
6. Judicial Separation.
.See aho Vol. VII. 798, 1795.
Jurisdiction — Act on Petition — Summons to
Strike out — Procedure.^ — A wife, who was
living within the jurisdiction, filed a petition
for judicial separation on the ground of
adultery, alleging that her husbands residence
was in England and that his domicil was
either Spanish or English. The petition was
served on the husband in England, and he
appeared under protest and filed an action on
petition, alleging that his domicil of origin
was Spanish and that he had never acquired
an English domicil or had a permanent resi-
dence in this country, and that he was only
temporarily within the jurisdiction. On a
summons to strike out the act on petition on
the ground that it did not shew that the
Court had no jurisdiction, — Held, that the
act on petition should not be struck out by an
order made on the summons, but should be
tried along with the wife's suit for judicial
separation. Riera v. Riera, 112 L. T. 223;
59 S. J. 206; 31 T. L. E. 50— Bargrave
Deane, J.
Countercharge of Adultery against Wife
Petitioner — Claim for Damages in Answer.!
— A husband countercharging his wife with
adultery in her suit for judicial separation
may also by his answer claim damages against
the alleged adulterer. N. v. A^, 82 L. J.
P. 56; [1913] P. 75; 108 L. T. 271; 57 S. J.
343; 29 T. L. R. 321— Evans, P.
No Appearance by Respondent — Application
by Respondent to Dismiss Petition for Non-
prosecution — Decree Nisi Rescinded and
Decree for Judicial Separation Granted at
Petitioner's Instance.] — A wife petitioned for
dissolution of marriage or in the alternative
far a judicial separation. The husband did
not enter an appearance and filed no answer.
On June 11, 1909, a decree visi for dissolu-
tion was granted. In 1912 the respondent
applied by summons that the decree nisi
should be rescinded and the petition dismissed
for want of prosecution on the ground that
the decree had never been made absolute. The
petitioner opposed that application and asked
for a rescission of the deci'ee nisi and for a
decree of judicial separation in lieu thereof :
— Held, that the decree nisi should be
rescinded and a decree of judicial separation
pronounced. Griffiths v. Griffiths, 106 L. T.
646; 56 S. J. 364; 28 T. L. R. 281— Evans, P.
7. Variation of Settlements.
See also Vol. VII. 806. 1796.
Petition before Decree Absolute — Jurisdic-
tion.]— There is no jurisdiction under section 5
of the Matrimonial Causes Act. 1859, to take
any proceedings to vary a settlement until
! the decree for dissolution of marriage has
I been made absolute. The Court, however,
j may allow a petition for variation of a settle-
I ment to remain on the file, but only in order
i that it may take effect the moment the decree
is made absolute. Const arttinidi v. Corir
I staniinidi (73 L. J. P. 91: [1904] P. 306)
I considered. Clarke v. Clarke, 80 L. J. P.
135; [1911] P. 186; 105 L. T. 1 ; 55 S. J. 535
j —C.A.
Insertion of Fresh Power of Appointment
I among Children of Future Marriage — Protec-
tion of Interest of Existing Child.] — The
Court varied a marriage settlement by the
insertion of a power to a petitioning husband,
who was sole contributor of the settled funds,
i of appointment to the extent of three-fourths
of the capital and income of the funds in
favour of a second wife and the children of a
second marriage respectively, with provision
for a minimum interest for the existing child
of the dissolved marriage, .■itkins v. Atkins,
83 L. J. P. 18; [1913] P. 211; 109 L. T. 640
—Evans, P.
Wife Guilty of Adultery — Allowance to
Wife — " Dum sola et casta."] — Where a
decree for dissolution of marriage has been
pronounced on the ground of the wife's
adultery, and application is made for varia-
tion of the marriage settlement, any allowance
directed to be paid to the wife should be made
payable only while she remains sola et casta.
Squire v. Squire (74 L. J. P. 1 ; [1905] P. 4)
followed. Oilier v. Oilier, 84 L. J. P. 23;
[1914] P. 240: 111 L. T. 697; 58 S. J. 7-54
—C.A.
Moiety of Income to Wife of Property
Brought into Settlement by Husband — Bargain
— Discretion of Court.i — There is nothing in
an agreement — even assuming it to be a valid
one — between a husband and wife that in pro-
ceedings by the husband for dissolution of
their marriage their marriage settlement shall
in no circumstances be so varied as to deprive
the wife of a certain portion of the income
of the settled propertj' that will have the
effect of fettering the judicial discretion of the
Court as to the insertion of the dum sola et
casta vixerit clause in an order made for the
dissolution of the marriage. Oilier v. Oilier
(supra) considered and applied. Woodcock v.
Woodcock, 111 L. T. 924— C.A.
Scheme for Settlement of Property of
Guilty Wife — Property subject to Forfei-
ture on Alienation and to Restraint on
Anticipation — Jurisdiction.] — The Court has
no power under section 45 of the Matrimonial
Causes Act, 1857, to make such a settlement
of the property of a divorced woman as will
involve the removal of a restraint on antici-
pation ; and this is true even in a case in
which the petition for a settlement under
section 45 has been presented whilst the
divorced woman was still unmarried, but in
which she has married again prior to the hear-
ing of the petition. Constantinidi v. Con-
stantinidi (73 L. J. P. 91; [1904] P. 306)
distinguished. Loraine v. Loraine, 82 L. J.
649
HUSBAND AND WIFE.
650
P. 29; [1912] P. 222; 107 L. T. 363; 56 S. J.
687; 28 T. L. E. 534— C. A.
Decision of the President (81 L. J. P. 22;
[1912] P. 86) reversed. lb.
8. Alimony and Maintenance.
See also Vol. VII. 828, 1806.
Alimony Pendente Lite — Allegation by
Husband that Wife Cohabiting with and
Maintained by Co-respondent — Denial by Wife
on Oath — Right to Cross-examine.] — A wife
petitioned for alimony pendente lite in divorce
proceedings brought against her by her
husband on the ground of adultery. The
husband alleged in answer to this petition that
the wife was cohabiting with and being main-
tained by the co-respondent. The wife made
an affidavit in reply denying this : — Held, that
the husband ought to be allowed to cross-
examine the wife on her affidavit and to file
evidence as to her means of support, but only
on condition that no question was put in cross-
examination and no affidavit filed which would
go directly or indirectly to the issue of adul-
tery, so as not to deprive her of the protection
afforded by the Evidence Further Amendment
Act, 1869, s. 3. Bass v. Bass, 84 L. J. P. 53;
[1915] P. 17; 112 L. T. 70; 31 T. L. R. 49
—C.A.
Alimony — Conduct of Petitioning Wife, short
of Matrimonial Misconduct — Proportion to
Joint Means of Amount of Alimony to be
Ordered.] — In considering a wife's claim to
alimony, her conduct, short of matrimonial
misconduct, should be looked to. If she has
no means, her husband must make her some
allowance, but the Court is not bound in the
quantum of its order to observe any fixed
proportion to the joint means of the parties.
Leslie v. Leslie, 80 L. J. P. 139; [1911]
P. 203; 104 L. T. 462; 55 S. J. 386;
27 T. L. E. 316— Evans, P.
Application to Reduce — Means of Husband
— Irrelevant Allegations.] — Upon a husband's
petition for the reduction of the amount of
alimony payable to a wife under an absolute
order, the only material matter for the con-
sideration of the Court is the ability of the
husband to pay, and allegations in the petition
with respect to the past conduct of the parties
will be struck out as irrelevant, although the
conduct of the parties is a material matter to
be considered when the order for alimony is
made. Hall v. Hall, 111 L. T. 403— C. A.
Permanent Maintenance — Consent Order for
Payment to Wife " for her life " — Jurisdiction
to Vary Order — Wife's Subsequent Petition for
Increase — Husband's Cross-petition for
Decrease — Withdrawal of Wife's Petition.] —
In 1908 a wife olitained a decree for divorce,
and filed a petition for permanent mainten-
ance. The Registrar reported that the
amount to be paid was agreed by both parties
at 90/. a year for the wife and 30Z. a year
for the only issue of the marriage, a daughter,
until twenty-one ; ho submitted that the
husband should be ordered to pay the agreed
amount of 90^ a year to the wife for her life
and 30Z. a year to the daughter till she was
twenty-one. In June, 1908, an order was
made confirming the report and ordering the
payment in the terms of the Registrar's sub-
mission. In 1913 the wife petitioned for an
increase of maintenance, and the husband
cross-petitioned for a decrease. At the hearing
before the Registrar the wife's petition was
withdrawn on the ground that as the order of
June, 1908, was a consent order the Court
had no power to vary it. The Registrar dis-
missed the cross-petition, and the President
affirmed his order. The husband appealed : —
Held, by the Court of Appeal, dismissing the
appeal, that, if there had been an order by
consent for the payment of maintenance to
the wife during the joint lives of the husband
and wife, the mere fact that the parties had
agreed the amount to be paid would not have
prevented an application under section 1, sub-
section 2 (a) of the Matrimonial Causes Act,
1907, for an increase or decrease of the sum
if the circumstances of the parties afterwards
changed, but that as the consent order was
for the payment to the wife " for her life "
there was no jurisdiction, and that the pre-
sentation and withdrawal of the wife's petition
for increase of maintenance did not affect her
position, there having been no fresh agree-
ment. Maidlow v. Maidlow, 84 L. J. P. 20;
[1914] P. 245; 112 L. T. 804— C. A.
Registrar's Report Recommending Quar-
terly Payments during Joint Lives — Decree
not made Absolute — Order Nunc pro Tunc for
Monthly Payments.] — ^An order under sec-
tion 1, sub-section 2 of the Matrimonial Causes
Act, 1907, for the payment by a husband to
his wife during their joint lives of a weekly
or monthly sum of money may be made before
decree absolute by way of confirmation of the
usual Registrar's report recommending such
an order, such confirmation to be nunc pro
tunc and the order operative as from the date
of the decree absolute. Cavendish v.
Cavendish, 82 L. J. P. 112; [1913] P. 138;
108 L. T. 1039; 57 S. J. 741; 29 T. L. E. 653
— Evans, P.
Restraining Dealings with Property — No
Subsisting Order for Payment of Fixed Sum.]
— The principle laid down in Newton v.
Newton (55 L. J. P. 13; 11 P. D. 11)— that
the Court will not restrain from dealing with
his property a husband against whom no order
has yet been made — is of general application
and not confined to the case of alimony pend-
ing suit. The Court will not, in order to pro-
tect a wife's right to permanent maintenance,
restrain a husband against whom no order
for a fixed sum has been made. Noakes v.
Noakes (47 L. J. P. 20; 4 P. D. 60) com-
mented on. Burmester v. Burmester, 82 L. J.
P. 54; [1913] P. 76; 108 L. T. 272; 57 S. J.
392; 29 T. L. R. 323— Evans, P.
Petition for Reduction — Consent Order
"until further order" — Power to Vary.] — On
February 5, 1906, a wife obtained a decree
absolute for the dissolution of her marriage,
and on February 26, 1906, she obtained a con-
sent order for maintenance, under which the
husband was ordered to pay her maintenance
651
HUSBAND AND WIFE.
652
at the rate of 120L per annum " out of his
present income and until further order." On
March 26, 1914, the husband petitioned for a
reduction of the maintenance on the grounds,
first, that since the date of the order he had
been compelled to commute a part of his army
pension for the purpose of paying legal
costs and expenses incurred through illness,
and had thereby reduced his pension, -which
was his sole source of income, from 420Z. to
320L per annum; and secondly, that the wife's
means had increased since that date : — Held,
that the Court had power to reduce the
amount of the maintenance, and that in a
case where the original order for maintenance
was made until further order the decrease in
the husband's income and the increase in the
wife's means were both matters which might
be taken into account as grounds for granting
a reduction. Dictum of Bargrave Deane, J.,
in Sharpe v. Sharps (78 L. J. P. 21, at p. 22 ;
[1909] P. 20. at p. 23), discussed and dis-
tinguished. Hall V. Hall, 84 L. J. P. 93;
[1915] P. 105; 113 L. T. 58: 59 S. J. 381
— C.A.
9. Proceedings for.
See also Vol. VII. 860, 1810.
a. Petition.
No Addresses Given — Refusal of Certificate
of Completion — Application to Enter Case." —
Where a Eegistrar had refused a certificate
owing to a petition not setting out the
addresses where the parties thereto had
cohabited, and had thereby caused the case
to be too late for insertion in the next term's
list, the Court, while refraining from laying
down any rule, ordered the case to be entered
as on the date when the certificate was
refused. Lawton's Petition, In re, 107 L. T.
591; 57 S. J. 61— Bargrave Deane, J.
Pleading — Venereal Disease.] — Where a
petitioner relies upon a charge of wilfully
communicating a venereal disease it should
be specifically pleaded in the petition. E. v.
E. m T. L. R. 364) distinguished. Walker
V. Walker, 107 L. T. 655; 57 S. J. 175—
Bargrave Deane, J. But see Broicning \.
Broioning , ante, col. 641.
'Wife's Petition — Bigamy with Adultery
— Specific Plea of Bigamy — General Charge of
Adultery." — Where a case of bigamy is
specifically pleaded, adultery with the same
woman ought to be specifically pleaded, in
order to entitle the petitioner to relief for
bigamy with adultery, and a general charge
of adultery with divers women will not suffice
for this purpose. Sparrow v. Sparrow,
30 T. Tj. M. 47— Bargrave Deane, J.
Answer — Cross-relief — Claim for Nullity
— Trial." — The answer to a petition for disso-
lution of marriage may set up a claim for a
decree of nullity on the ground of the impo-
tence of the petitioner, and the issue as to
nullity will be tried first. S. v. S., 81 L. J.
P. 16; [1912] P. 16; 106 L. T. 464— Bargrave
Deane, J.
b. Particulars.
Explanatory Affidavit in Default of Further
and Better Particulars — Sufficiency.] — In a
petition for divorce the petitioner alleged
adultery by the respondent at two addresses
between various dates. On an application for
further and better particulars, the Eegistrar
ordered particulars of " dates and times of
day, or explanatory affidavit." The peti-
tioner's solicitor filed an affidavit that he per-
sonally or through his agent had caused the
witnesses who would be subpoenaed to be care-
fully questioned and that they were unable to
fix the dates : — Held, that a person who
swears an explanatory affidavit must himself
have seen and questioned the witnesses ; and
therefore that the affidavit sworn by the peti-
tioner's solicitor was insufficient. C v. C,
27 T. L. R. 161— Bargrave Deane, J.
c. Discovery.
Notes Made by Medical Man.] — Where a
husband, respondent in a divorce suit, asked
for discovery of notes made by a medical man
who had attended the wife petitioner, the
Court refused to make an order. D. v. D.,
55 S. J. 331— Evans, P.
d. Delay in Prosecuting Suit.
Motive for Presenting Petition — Refusal of
Decree — Discretion — Appeal.] — Where there
has been great delay in instituting proceedings
for a divorce, the motive for commencing the
suit may be taken into consideration when
deciding whether there has been unreasonable
delay in presenting the petition within sec-
tion 31 of the Matrimonial Causes Act, 1857;
and where the Judge in the exercise of his
discretion under that section has refused to
grant a divorce on the ground of unreasonable
delay, the Court of Appeal will not interfere
unless he has decided the case on some wrong
principle of law. Pears v. Pears, 107 L. T.
505; 56 S. J. 720; 28 T. L. R. 568— C.A.
On a petition by a husband for divorce on
the ground of his wife's adultery, the Court
refused a decree for the reason that the peti-
tioner had been guilty of three years' delay
without any excuse. Hughes v. Hughes,
31 T. L. E. 631— Horridge, J. Affirmed,
32 T. L. R. 62— C.A.
e. Intervention of King's Proctor.
Striking out Petitioner's Answer on Ground
of his Silence.] — In a matrimonial suit, where
the King's Proctor shewed cause against the
decree being made absolute, the petitioner's
solicitors were directed to communicate with
their client with a view to ascertaining whether
he still defended the proceedings, and whether
he would agree to certain evidence being taken
on affidavit. For several months communica-
tions passed between the petitioner and his
solicitors, but the solicitors were left without
instructions. On a summons being taken out,
the Court directed the petitioner's answer to
the King's Proctor's plea to be struck out,
and subsequently on motion rescinded the
653
HUSBAND AND WIFE.
654
decree. Forster v. Forster, 29 T. L. E. 22—
Bargrave Deane, J.
Discretion of Court to Grant Relief notwith-
standing Intervention of King's Proctor.] —
See cases under B.^Rs to Divorce, ante, cols.
642 et seq.
f. Other Interveners.
Person not a Party to Suit — Allegation of
Adultery.] — In a divorce suit, between the
decree nisi and the application to make it
absolute, the Court, on terms, allowed the
intervention of a lady who was not a party
to the suit, but with whom the respondent was
alleged by the petition to have committed
adultery. French v. French, 30 T. L. E. 584
— Evans, P.
Decree Nisi — No Evidence Adduced — Inter-
vention by Stranger — Order to Try Issue of
Wife's Adultery — Security for Wife's Costs —
Jurisdiction.] — A husband presented a petition
for divorce against his wife. She presented
a cross-petition for divorce against him. The
suits were heard together. No evidence was
given in support of the husband's petition,
which was dismissed, but the wife obtained
a decree nisi on her petition. Before it was
made absolute a stranger intervened, and the
issue of the wife's adultery w^as ordered to be
tried. No terms as to costs were then imposed,
but a fortnight later the wife applied that the
intervener should be ordered to give security
for her costs of the intervention : — Held, that
the Court had no jurisdiction to order the
intervener to give security. Gilroy v. Gilroy,
83 L. J. P. 49; [1914] P. 122; 110 L. T. 601;
58 S. J. 378; 30 T. L. E. 365— C.A.
g. Evidence.
Power to Hear in Camera.] — See Scott
V. Scott {No. 1), ante, col. 632.
Evidence Taken in Camera.] — In cross-suits
for divorce, the case for the wife having been
opened in public, and the wife, on being called
as a witness, finding it almost impossible to
give her evidence by reason of the presence
of people in Court, the President directed
this part of the case to be heard in
camera. Moosbruggerv. Moosbrugger (No. 1),
29 T. L. E. 658— Evans, P.
Identification of Petitioner — Photograph.] —
Circumstances in which the Court is justified
in acting on a photograph of a party to a
divorce suit as evidence of identification.
Hills V. Hills, 31 T. L. E. 541— Horridge, J.
Factum of Marriage Established in Previous
Suit for Restitution of Conjugal Rights.] —
When the factum of marriage has been estab-
lished in a suit for restitution of conjugal
rights it is unnecessary to give further proof
of it in a subsequent suit between the same
parties for dissf)lution of marriage unless upon
any grounds the validity of tlie marriage is
then put in issue. Cowley (Countess) v.
Cowley (Earl), 82 L. J. P. 120; [1913] P. 159;
109 L. T. 48; 29 T. L. E. 690— Evans, P.
Incestuous Adultery with Wife's Sister —
Proof of Relationship.] — In a suit by a wife
for divorce on the ground of her husband's
incestuous adultery with her sister, a certi-
ficate of birth to prove the relationship should,
as a rule, be produced. Green v. Green,
29 T. L. E. 357— Bargrave Deane, J.
Cross-examination as to Adultery.] — Not-
withstanding the provisions of section 3
of the Evidence (Further Amendment) Act,
1869, a wife respondent who countercharged
her husband with conduct conducing to her
adultery and connivance at it was allowed to
be cross-examined as to her relations with
the co-respondent upon her electing to give
evidence in support of her countercharges.
Ruck V. Ruck, 80 L. J. P. 17; [1911] P. 90;
104 L. T. 462; 27 T. L. E. 191— Evans, P.
It is contrary to the intention of the Evi-
dence Further Amendment Act, 1869, that a
witness, party to the suit, should be questioned
concerning adultery which has not been alleged
in the pleadings. Brown v. Brown, 84 L. J.
P. 153; [1915] P. 83; 113 L. T. 190;
59 S. J. 442; 31 T. L. E. 280— Evans, P.
A husband, respondent to a petition for
dissolution of marriage on the ground (inter
alia) of several alleged acts of adultery, was
asked in cross-examination whether he had
committed adultery on another and earlier
occasion not charged in the petition. The
question was objected to and disallowed. lb.
Where cruelty is alleged to have consisted
in part of the making by one spouse against
the other of a charge of adultery which is
stated to be false and the truth or falsity of
the charge is therefore material on the ques-
tion of cruelty, the party alleging the cruelty
in a suit for judicial separation may be cross-
examined as to her or his adultery, although
she or he may not have already given evidence
in denial of such adultery. Lewis v. Lewis,
81 L. J. P. 24; [1912] P. 19; 106 L. T. 191;
56 S. J. 189; 28 T. L. E. 174— Bargrave
Deane, J.
" Proceedings instituted in consequence of
adultery."] — Semble, the consolidation for
purposes of hearing of a suit for judicial
separation with a cross-suit for dissolution of
marriage on the ground of adultery does not
have the effect of making the consolidated suits
a " proceeding instituted in consequence of
adultery " within the meaning of section 3 of
the Evidence Further Amendment Act,
1869. lb.
Plea of Connivance — Cross-examination as
to Adultery.] — Where in a divorce suit a
respondent made a counter-charge of con-
nivance against her husband, the Court per-
mitted her to be cross-examined as to her own
adultery, although she had previously not
denied it. Deunys v. DriinJis. 107 Tj. T. 591;
57 S. J. 61 — Bargrave Deane. J.
Corroboration — Previous Statement Admitted
to Corroborate Testimony in the Box — Circum-
stances Precluding Motive to Misrepresent.] —
The co-respondent, liaving given evidence that
he had not committed adultery with the respon-
dent, a letter written by him to the respondent,
655
HUSBAND AND WIFE.
656
at a date subsequent to that on which adultery
was now alleged to have taken place, but
previous to any charge having been made, in
which he referred to the fact that he had not
held her in his arms " since her marriage
was relied on to prove the truth of the fact
stated in corroboration of the testimony of the
co-respondent in the box. O'Gorman v.
0' Gorman, 56 S. J. 634— Evans, P.
h. Co-respondent.
Lea¥e to Proceed without Naming Co-respon-
dent.]— Circumstances in which the Court, in
the exercise of its discretion, gave leave to a
petition to proceed without naming a co-
respondent. Jeffreys v. Jeffreys, 28 T. L. E.
504— Evans, P.
Death of Co-respondent after Appearance —
Order Dismissing Co-respondent from Suit —
Charge of Adultery with Co-respondent Pro-
ceeded with.] — lu a husband's petition for
divorce an appearance was entered for the co-
respondent L. Shortly thereafter L. died, and
an order was made that he should be dis-
missed from the suit : — Held, that, notwith-
standing that order, the charge of adultery
by the respondent with L. could be gone into
at the trial. Wigglesworth v. Wigglesworth,
27 T. L. K. 463— Horridge, J.
Rescission of Decree — Dismissal of Petition
— Fresh Order Condemning Co-respondent in
Costs.] — \Vhere on the reconciliation of the
petitioner and the respondent the decree nisi
is rescinded and the petition is dismissed, the
co-respondent remains liable for the costs of
the suit in which he has been condemned by
the decree nisi. The decree nisi will not be
severed, retaining that portion of it which deals
with the costs, but the order rescinding the
decree and dismissing the petition will con-
tain a provision condemning the co-respondent
in the costs. Quartermaine v. Quartermaine,
80 L. J. P. 89 ; [1911] P. 180 ; 105 L. T. 80 ;
55 S. J. 522; 27 T. L. R. 458— Bargrave
Deane, J.
i. Trial,
Discharge of Jury.] — Before a jury can be
discharged it is necessary that all parties
should express their consent. Jones v. Jones
(No. 2), 108 L. T. 1038— Evans, P.
j. The Decree.
Decree Nisi — No Application for New Trial —
Decree Absolute — Motion by Co-respondent to
Set Aside both Decrees and Verdict on Ground
of Alleged Fraud." — After decree absolute the
Court has no jurisdiction at the instance of
a co-respondent, upon motion made for that
purpose, to rescind that decree and the decree
nisi or to set aside the verdict of a jury against
the co-respondent which these decrees have
followed, although fraud is alleged by him in
the obtaining of that verdict and decree nisi,
the co-respondent having had time and
opportunity for applying for a new trial after
the decree nisi and having failed to do so.
Kemp-Welch v. Kemp-Welch, 81 L. J. P. 25;
[1912] P. 82; 106 L. T. 643; 28 T. L. R. 185
— Evans, P.
Rescission.] — On the intervention of the
King's Proctor the Court, on the ground that
the petitioning wife had concealed material
facts, rescinded the decree rn'si. which, although
the wife had committed adultery, the Court
had granted in its discretion (vide King v.
King (No. 1), 84 L. J. P. 80; [1915] P. 88).
King v. King (No. 2), 32 T. L. R. 78—
Bargrave Deane, J.
k. Costs.
i. Wife's Petition.
Costs Incurred by Wife Unpaid — Rever-
sionary Interest — Injunction." — In a suit at
the instance of the wife for divorce an order
was made on the husband to pay a certain
sum in respect of the wife's costs, and to
give security for a further sum. The order
was served on the husband's solicitor, but it
was not possible to serve the husband himself
as he had gone out of the jurisdiction. The
husband had no property in this country on
which execution could be levied to pay those
costs, but he had a reversionary interest under
his father's will which he had partially
charged and which he had expressed his
intention of further charging. On an appli-
cation by the wife to restrain the trustees
of the husband's father's will from paying
over, and the husband and his agents from
receiving, charging, or dealing with the
property in question, — Held, that an injunc-
tion should be granted. Dooley v. Dooley,
56 S. J. 207; 28 T. L. R. 113— Bargrave
Deane. J.
Wife's Costs — Change of Solicitor — Resump-
tion of Cohabitation — Application to Dismiss
Petition — Remedy of Discharged Solicitor —
Stay of Proceedings.] — A wife client in the
Divorce Division cannot by simply giving
notice of change of solicitors deprive the
solicitor, who has hitherto acted for her, of
the right to tax his costs in that Division or
drive him to his remedy by an action against
the husband for necessaries at common law.
In spite of the parties in a matrimonial suit
returning to cohabitation, an immediate order
need not be made for the dismissal of the
petition without provision being made for the
costs of a discharged solicitor of the wife,
but the proceedings may be stayed pending
the taxation of his bill of costs. Jinks v.
Jinks, 80 L. J. P. 84; [1911] P. 120;
104 L. T. 655; 55 S. J. 366; 27 T. L. R. 326
— Evans, P.
Jurisdiction of Divorce Division to Decide
Reasonableness of Solicitor's Charges and to
Tax." — The liability for, or the reasonableness
of, the charges in the bill can be determined
in the Divorce Division without the necessity
of instituting an action against the husband
at common law. lb.
ii. Husband's Petition.
Husband's Petition Dismissed — Second
Petition — Stay of Proceedings till Wife's Costs
657
HUSBAND AND WIFE.
658
of First Petition Paid.] — The husband's first
petition for dissolution of marriage on the
ground of the adultery of the wife was dis-
missed with costs. Some of the wife's costs
of this petition had not yet been paid. The
husband now presented a second petition for
dissolution of marriage on the ground of the
adultery of the wife with another co-respon-
dent, the acts of adultery alleged being all
prior in date to the first petition : — Held, that
the principle of Kemp-Welcli v. Kemp-Welch
(79 L. J. P. 92; [1910] P. 23'2) applied to
the case, and that the wife was entitled to a
stay of proceedings in the second petition until
her costs of the first petition had been paid
by the husband. Yeatman v. YeaUnan
(39 L. J. P. 37) not followed. Sanders v.
Sanders, 80 L. J. P. 44: [1911] P. 101;
104 L. T. 231; 55 S. J. 312— C. A.
Wife's Costs — Guilty Wife — Duration of
Trial Exceeding Estimate — Further Taxation
of Wife's Costs — Party and Party Costs —
Discretion of Judge at Trial.] — When after a
a trial exceeding the duration anticipated on
the Registrar's estimate of her costs a respon-
dent wife is found guilty of adultery and
obtains the " usual " order for her costs, she
is not, in the absence of special application
on behalf of the petitioning husband, limited
to the sum previously fixed by the Registrar
and ordered to be secured before the trial, but
is entitled to such further sum (if any) as in
the opinion of the taxing Registrar would
have been allowed if the duration of the trial
had been known at the time of the previous
order, and these further costs will be taxed
as between party and party. Robertson v.
RobeHson (51 L. J. P. 5; 6 P. D. 119)
followed. Palmer v. Palmer, 83 L. J. P. 58;
[1914] P. 116; 110 L. T. 752; 58 S. J. 416;
80 T. L. R. 409— Evans, P.
Secus, if the Judge at the trial is applied
to and exercises the discretion given to him
by statute, and by the Divorce Rules — Butler
V. Butler (15 P. D. 126). lb.
Wife's Costs — Husband's Petition — Wife's
Cross-charges and Claim for Relief — Non-com-
pliance by Husband with Order for Security for
Costs — Attachment.] — Tlie wife, respondent in
the original suit, who puts cross-charges upon
the record and claims relief becomes in fact a
petitioner in respect of her cross-charges, and
may move for a writ of attachment on failure
to get her costs of the suit secured pursuant
to an order. Clarke v. Clarke (60 L. J. P.
97; [1891] P. 278) dissented from. Jones
V. Jones (No. 1), 82 L. J. P. 16: [1912] P.
295; 107 L. T. 590; 57 S. J. 10; 29 T. L. R.
22— Bargrave Deane, J.
iii. Against Co-respondent.
Infant Co-respondent.] — Where a petitioner
obtained a decree of divorce against the
respondent and co-respondent, — Held, that
the fact that the co-respondent was an infant
and had not appeared was no reason for not
making an order against him for costs.
Brockelbank v. Brockelbank, 55 S. J. 717;
27 T. L. R. 569— Evans, P.
Rescission of Decree — Dismissal of Petition
— Fresh Order Condemning Co-respondent in
Costs. ^ — Where on the reconciliation of the
petitioner and the respondent the decree nisi
is rescinded and the petition is dismissed, the
co-respondent remains liable for the costs of
the suit in which he has been condemned by
the decree J!i.si. The decree nisi will not be
severed, retaining that portion of it which
deals with the costs, but the order rescinding
the decree and dismissing the petition will
contain a provision condemning the co-respon-
dent in the costs. Quartermaine v. Quarter-
niaine, 80 L. J. P. 89; [1911] P. 180;
105 L. T. 80; 55 S. J. 522; 27 T. L. R. 458
— Bargrave Deane, J.
iv. Of King's Proctor and other Interveners.
Decree Nisi — Rescission — Petitioning Wife —
No Separate Estate.] — Where the Court on
the intervention of the King's Proctor rescinds
a decree nisi obtained by a wnfe, the Court
will not condemn the wife in costs unless it
is proved that the wife has separate estate.
Morris v. Morris, 112 L. T. 999; 31 T. L. R.
217 — Bargrave Deane, J.
Discretion — Order for Costs against Married
Woman — Evidence of Separate Estate.] —
The general rule that a wife shall not be
condemned in the costs of litigation with her
husband in the Divorce Division without evi-
dence of her having separate estate does not
extend to cases in which she is party to inter-
vention proceedings in that division. In
intervention proceedings the Court has an
absolute discretion as to costs. This discretion
is conferred by the Matrimonial Causes Act,
1878, s. 2, which is silent as to separate estate,
and the Court exercises its power as it may
think proper in intervention proceedings to
make orders for costs against a married woman
without evidence of her having separate estate.
Kennard v. Kennard. Morris v. Morris,
84 L. J. P. 172; [1915] P. 194; 59 S. J. 630:
31 T. L. R. 534— Bargrave Deane, J.
Wife's Petition— Charge of Adultery against
Husband — Intervention of Woman Charged
vifith Adultery — Costs of Intervener.]— Where
a wife presents a petition for divorce against
her husband on account of his alleged adultery
and cruelty, and the person with whom he
is alleged to have committed adultery inter-
venes under section 28 of the Matrimonial
Causes Act, 1857, or section 3 of the Matri-
monial Causes Act, 1907, such person is an
" opposite party " within the meaning of
section 2 of the Married Women's Property
Act, 1893, and on the petition being dis-
missed an order may be made for payment of
her costs out of property of the wife which is
subject to a restraint on anticipation.
Studlexi V. Studleij, 82 L. J. P. 65; [1913]
P. 119; 108 L. T. 657; 57 S. J. 425— C. A.
The " property " out of which payment of
costs may be ordered under section 2 of the
Married Women's Property Act. 1893. is the
whole property which is subject to a restraint
on anticipation, and not merely that portion
of the property which is for the time being
659
HUSBAND AND WIFE.
660
effectively restrained from anticipation. An
order for payment of costs thereout need not
therefore be limited to the period during
which the married woman is under coverture,
and the restraint applies. lb.
10. Summary Proceedings.
See also Vol. VII. 823, 1832.
a. In what Cases.
Desertion — Dismissal of Summons — Adjourn-
ment— Second Summons for same Cause of
Complaint — Res Judicata.]— A wife, whose
summons against her husband for desertion
under the Summary Jurisdiction (Married
Women) Act, 1895, has been dismissed, can-
not obtain an order on a second summons for
the same cause of complaint. It is immaterial
that desertion is a continuing offence ; its
commencement must be referable to some
particular date, and if the evidence of it is
incomplete or unavailable on the return of a
summons complaining of it, the wife should
apply for, and be allowed, an adjournment for
the purpose of completing her case. AVhen
the complaint has been once disposed of by
the Justices, the matter is res judicata.
Stokes V. Stokes, 80 L. J. P. 142; [1911]
P. 195; 105 L. T. 416; 75 J. P. 502; 55 S. J.
690; 27 T. L. E. 553— D.
After the dismissal of a summons under the
Summary Jurisdiction (Married Women) Act,
1895, for desertion at the instance of a wife
who has left her husband, it must be taken
that she has left him voluntarily, and the
charge of desertion is res judicata ; she can-
not afterwards prosecute a second summons
against him on the same ground of complaint,
on the suggested subsequent discovery by her
of fresh evidence in support of it which has
not been brought forward upon the hearing
of the first summons — for example, of the
husband having suffered from a venereal
disease ; and his refusal to maintain her, on
the footing that since that discovery she is
not bound to return to him, does not constitute
desertion by him as from the date of such
refusal. Blackledge v. Blackledge, 82 L. J.
P. 13; [1913] P. 9; 107 L. T. 720; 77 J. P.
427: 23 Cox C.C. 230; 57 S. J. 159;
29 T. L. E. 120— D.
The withdrawal by a wife of a summons
under the Summary Jurisdiction (Married
Women) Act, 1895, does not necessarily
render the subject-matter of complaint res
judicata or dispose of her right to take further
proceedings on similar facts. The with-
drawal may be conditional ; but if it is uncon-
ditional, it is an estoppel, barring the same
cause of complaint in subsequent proceedings
before Justices, though the complaining wife
may be able to raise the same subject-matter,
coupled with adultery, to obtain relief in the
Superior Court. Pickavance v. Pickavance
(70 L. J. P. 14: [1901] P. 60) commented on.
Hopkins v. Hopkins, 84 L. J. P. 26; [1914]
P. 282 : 112 L. T. 174— D.
Persistent Cruelty — Time within which
Proceedings to be Taken.] — A married woman
took out a summons in October, 1912, under
the Summary Jurisdiction (Married Women)
Act, 1895, for a maintenance order on the
ground of her husband's desertion since April,
1900. At the hearing the Justices held that
the husband had been guilty of cruelty to-
wards his wife, and that on April 2, 1900, he
struck her in the eye ; they considered that
he had persisted in that conduct with the view
of forcing her to leave him, and that she was
obliged to and did actually leave him on
April 2, 1900; and they held that such cruelty,
coupled with such intention, amounted to
desertion from that date. They accordingly
made an order for maintenance : — Held, that
such order could not stand as there was no
evidence of desertion in April, 1900, and that
the proceedings were out of time in respect
of the charge of cruelty. Katj v. Kay,
108 L. T. 813; 77 J. P. 128— D.
b. Practice and Procedure.
Desertion — Evidence — Complaint by Wife
of Desertion — Finding as to Date of Com-
mencement of Desertion.] — Courts of summary
jurisdiction, purporting under the Summary
Jurisdiction (Married Women) Act, 1895, to
find desertion established, should insert in
their finding of fact, or in the order drawn up
afterwards, the date on which they held that
desertion commenced. Fengl v. Fengl,
84 L. J. P. 29; [1914] P. 274— D.
Corroboration.] — The Court will not act
upon the uncorroborated evidence of a party,
contradicted by the other party, alleging
marital intercourse at a material date, upon
a summons taken out under the Summary
Jurisdiction (Married Women) Act, 1895, com-
plaining of desertion. Joseph v. Joseph,
84 L. J. P. 104; [1915] P. 122; 112 L. T.
170— D.
Separation Order — Weekly Payments — Effect
of Resumption of Cohabitation — Discharge of
Order — Arrears of Weekly Payments — Limita-
tion as to Number Recoverable.] — Where an
order has been made by a Court of summary
jurisdiction under section 5 of the Summary
Jurisdiction (Married Women) Act, 1895,
that a wife be no longer bound to cohabit
with her husband and that the husband should
make weekly payments to his wife, the pay-
ment of arrears of such weekly sums which
can be enforced is, by virtue of section 9 of
the Act of 1895, section 4 of the Bastardy
Laws Amendment Act, 1872, section 54 of
the Summary Jurisdiction Act, 1879, and
section 11 of the Summary Jurisdiction Act,
1848, limited to the arrears which accrued due
within six months before the date when the
application to enforce payment of such arrears
was made. Matthews v. Matthews, 81 L. J.
K.B. 970; [1912] 3 K.B. 91; 107 L. T. 56;
76 J. P. 315; 23 Cox C.C. 65; 28 T. L. E.
421— D.
Semble, per Lord Alverstone, C.J., and
Pickford. J. (Avory, J., dissenting), an order
for separation and for maintenance made
under section 5 of the Act of 1895 is not ipso
facto discharged by the voluntary resumption
by the wife of cohabitation with her husband ;
it remains in force until it is discharged under
661
HUSBAND AND WIFE.
662
section 7 of the Act by a Court of summary
jurisdiction acting within the district in which
the order was originally made, upon a proper
application made to the Court for that purpose.
7b.
Failure to Comply with Maintenance Order
— Jurisdiction to Commit Defendant — No
Evidence of Means.] — An order for the pay-
ment of maintenance money to a wife under
the Summary Jurisdiction (Married Women)
Act, 1895, may be enforced in default of suffi-
cient distress by committal to prison, although
no affirmative evidence of means is given by
the person applying for such committal. Rex
V. Richardsoyi ; Sherry, Ex parte, 79 L. J.
K.B. 13; [1909] 2 K.B. 851; 101 L. T. 541;
73 J. P. 434; 22 Cox C.C. 182; 25 T. L. E.
711— D.
Justices' Separation Order — Evidence Re-
quired— Allowance of Wife's Costs.] — On this
appeal by a husband from a maintenance order
made by Justices under the Summary Juris-
diction (Married Women) Act, 1895, the Court
made some observations on the evidence which
Justices ought to require before making such
an order, and allowed the appeal, but granted
the respondent her costs. Terry v. Terry,
32 T. L. E. 167— D.
c. Appeal.
Refusal to Enforce Payment of Arrears under
Justices' Order.] — An appeal from the refusal
of a Court of summary jurisdiction to enforce
arrears under an order for maintenance made
under the Summary Jurisdiction (Married
Women) Act, 1895, lies to the King's Bench
Division under section 9 of the Summary
Jurisdiction Act, and not to the Probate.
Divorce, and Admiralty Division under
section 11 of the Act. Ruther v. Ruther
(72 L. J. K.B. 826; [1903] 2 K.B. 270)
followed. Adams v. Adams, 83 L. J. P. 151 ;
[1914] P. 155; 111 L. T. 414; 58 S. J. 613
— D.
Aggravated Assault — Conviction — Grounds
of Conviction.] — In the case of a conviction
under the Offences Against the Person Act,
1861, s. 43, of a husband of an aggravated
assault upon his wife as a ground for entitling
the Court, so convicting, to make an order
for separation on the application of the wife,
pursuant to the proviso concluding the
Summary Jurisdiction (Married Women)
Act, 1895, s. 4, and to section 8 of the same
Act, there is no appeal under section 11 of the
later Act to the Probate, Divorce, and
Admiralty Division against the merits of the
conviction. In such a case the order for a
separation is complete in itself without
reference to the conviction or its grounds or
their sufficiency. Bryant v. Bryant, 84 L. J.
P. 30; [1914] P. 277: 112 L. T.' 171; 59 S. J.
75; 31 T. L. E. 36— D.
Appeal of Husband — Poor Person — Wife's
Costs.] — The fact that a husband, successfully
appealing from an order of Justices under the
Summary Jurisdiction (Married Women) Act,
1895, has been admitted to appeal as a poor
person is no ground for departing from the
usual practice to allow the wife respondent her
costs of supporting the order made in the
Court below. Order XVI. rule 29 is in point.
Hope V. Hope, 84 L. J. P. 176 ; [1915] P. 125 ;
113 L. T. 377; 79 J. P. 320; 59 S. J. 457— D.
Security for Costs — Appeal by Husband to
Divisional Court.] — Where a husband,
possessed of means, appealed from an order
of a Court of summary jurisdiction, the
President granted the application of the wife,
without means, that the husband should find
security for her costs of appeal. L. v. L.
{No. 1), 55 S. J. 330— Evans, P.
Stay of Husband's Appeal.] — On the
appeal of a husband from an order made at
the instance of his wife under the Summary
Jurisdiction (Married Women) Act, 1895, the
wife made an application in chambers, sup-
ported by an affidavit as to the means of the
parties, for security for her costs of the
appeal. The Judge in chambers, considering
the application fit for a Divisional Court, con-
sulted the other Judge of the Division, and
afterwards announced their decision in Court
without the Divisional Court being actually
constituted to sit. The application was
allowed, the husband being ordered to pay
into Court a sum fixed, or give security to the
satisfaction of a Eegistrar, and the hearing
of the appeal being in the meanwhile stayed.
Sirrell v. Sirrell, 80 L. J. P. 8; [1911] P.
38; 104 L. T. 79; 27 T. L. E. 155— D.
Striking out Non-cohabitation Clause.] — In
proceedings before Justices under the Sum-
mary Jurisdiction (Married Women) Act,
1895, a married woman obtained an order by
which it was adjudged that her husband had
deserted her, and it was ordered that she was
no longer bound to cohabit with him. The
husband unsuccessfully appealed, but on his
application the Court varied the Justices'
order by striking out the non-cohabitation
clause. Dunning v. Dunning. 55 S. J. 650;
27 T. L. E. 534— D.
Res Judicata — Wife's Costs. 1 — SembJe. a
wife whose ground of complaint is held by
the Court of Appeal to be res judicata is
not, when that point has been taken before
the Justices, entitled to costs against her
husband either in the Court of Appeal or
before the Justices. Blachledge v. Blackledqe,
82 L. J. P. 13; [1913] P. 9: 107 L. T. 720;
77 J. P. 427: 57 S. J. 159; 23 Cox C.C. 230;
29 T. L. E. 120— D.
III. SEPAEATION DEEDS.
See also Vol. VII. 986. 1842.
Agreement Providing for Immediate Recon-
ciliation and for Contingency of Future
Separation.] — An agreement entered into
between a husband and wife while living
separate and apart, providing for their resum-
ing cohabitation, and further that, in the event
of a future separation, provision should be
made for the wife, is legal and enforceable.
663
HUSBAND AND WIFE.
664
MacMahon v. MacMahon ; Purser v. Purser,
[1913] 1 Ir. R. 428— C. A.
Covenant by Husband for Allowance to
Wife — Consideration — Wife Refraining from
taking Legal Proceedings against Husband.] —
A deed of separation was entered into
between a husband and wife after the latter
had been subjected to treatment at the hands
of her husband which would have justified
her in taking proceedings for assault against
him before a magistrate. Such proceedings
were not in fact taken. By the terms of the
deed of separation the husband agreed to
make his wife a weekly allowance. In an
action by the wife to recover arrears of the
allowance due to her, — Held, that the fact
that the wife refrained from taking proceed-
ings against her husband when she was legally
entitled to do so was sufficient consideration
to support the agreement for separation,
which was accordingly not void as being
against public policy, and that the defendant
was liable thereunder upon his covenant to
make his wife an allowance. Hulse v. Hulse,
103 L. T. 804— D.
Recital of Agreement that Husband is to
Pay Weekly Sum to Wife while she Remains
Chaste — Covenant by Husband to Pay Weekly
Sum in General Terms — Recital Controlling
Covenant.] — By a deed of separation, alter a
recital that the husband had " agreed to
allow " the .wife " the sum of five shillings
per week for her maintenance during her life
60 long as she shall remain chaste, such
weekly payments to commence as from
February 5, 1910," it was witnessed that
" for effectuating the said agreement and in
consideration of the premises " the husband
" doth hereby covenant that he . . . will
duly and punctually pay or cause to be paid
the said sum of five shillings per week to "
the wife "or to such person as she shall from
time to time authorise to receive the same on
Saturday in each week " : — Held, that the
covenant was controlled by the recital and
that the weekly sum of five shillings was only
payable to the wife while she remained
chaste. Hesse v. Albert (3 Man. & Ry. 406)
followed. Crouch v. Crouch, 81 L. J. K.B.
275: [1912] 1 K.B. 378; 106 L. T. 77;
56 S. J. 188; 28 T. L. R. 155— D.
Validity of Deed of Separation as Bar to
Suit for Restitution.] — Where a deed of
separation contains covenants not to sue for
restitution of conjugal rights and for the pay-
ment by the husband of an allowance to his
wife, it is of the essence of the agreement that
the allowance be maintained. As the allow-
ance is provable in bankruptcy, and an action
cannot after discharge in bankruptcy be main-
tained on the covenant, it is clear, after the
husband has made default in payment, been
adjudicated a bankrupt and received his dis-
charge, and the wife has proved in the bank-
ruptcy, that the deed and the covenant not to
sue cannot be set up in bar of proceedings by
the wife for restitution of conjugal rights.
McQuiban v. McQuiban. 83 L. J. P. 19;
[1913] P. 208; 109 L. T. 412; 29 T. L. R.
766— Evans, P.
IV. WIFE'S RIGHTS AND PROPERTY.
See also Vol. VII. 1022, 1847.
1. Dower.
Sale of Land — Purchase Money — Claim of
Doweress.] — (Jn tlie sale of lands out of
which dower is payable the doweress is not
entitled, as of right and against the heir, to
have an apportioned part of the purchase
money paid to her in satisfaction of her claim
to dower, but is only entitled to payment of
the dower as it accrues due. Wilson, In re;
Wilson V. Clark, 32 T. L. R. 150— Sargant, J.
2. Jointure.
Prima facie a jointure is an estate to the
wife for life to take effect on the death of the
husband. De Hoghton v. De Hoghton
(65 L. J. Ch. 667; [1896] 2 Ch. 385) followed.
Greenwood v. Lutman, [1915] 1 Ir. R. 266 —
Barton, J.
3. Power to Disclaim.
Gift by Will of Annuity for Separate Use —
Restraint on Anticipation.] — A married woman
may, since the Married Women's Property
Act, 1882, disclaim a gift to her by will of
personal estate although it is given to her
with a restraint on anticipation. Wimperis,
In re; Wicken v. Wilson, 83 L. J. Ch. 511;
[1914] 1 Ch. 502 ; 110 L. T. 477 ; 58 S. J. 304
— Warrington, J.
4. Effect of Deceased Wife's Sister's
Marriage Act on Property.
Gift of Interest during Widowhood —
Marriage with Deceased Sister's Husband —
Subsequent Validation — Right to Retain
Interest.] — The effect of section 2 of the
Deceased Wife's Sister's Marriage Act, 1907,
is that no rights of property, whether of the
so-called husband and wife or of third parties,
depending on the invalidity of a marriage with
a deceased wife's sister contracted before the
Act, are to be altered or interfered with by
the validation of the marriage, as a civil con-
tract, by section 1 : — Held, therefore, that a
widow who, being entitled to an interest during
widowhood, had before the passing of the Act
married her deceased sister's husband, was
entitled to retain the interest notwithstanding
the validation of her second marriage by the
Act. Whitfield. In re ; Hill v. Mathie, 80 L. J.
Ch. 263; [1911] 1 Ch. 310; 103 L. T. 878;
55 S. J. 237 ; 27 T. L. R. 203— Parker, J.
5. Policies of Insurance.
Policy "for the benefit of" Wife.]— A
married man effected with a life assurance
society a policy of assurance, described as an
" endowment bond," in terms of which the
society undertook, in consideration of the
payment of certain annual premiums, to pay
to liim the principal sum assured, with interest
and profits, on the expiry of twenty years.
The societv also undertook, in the event of the
665
HUSBAND AND WIFE.
666
husband's death before the expiry of the
twenty years, to pay the principal sum assured
to his widow, whom failing, to the husband's
executors, administrators, or assigns. The
husband having died within the twenty years,
survived by his widow, and his estate having
been sequestrated, — Held (dub. the Lord
President), that the policy in question was a
policy " for the benefit of his wife " within
the meaning of section 2 of the Married
Women's Policies of Assurance (Scotland) Act,
1880 (c/. section 11 of the Married Women's
Property Act, 1882), and accordingly that the
proceeds thereof fell to the widow and not to
the husband's creditors. Chrystal's Trustee v.
Chrystal, [1912] S. C. 1003— Ct. of Sess.
Trust for Wife and Children — Tontine
Dividends — Assignment by Husband for
Benefit of Creditors — Rights to Benefits under
Policy.] — By a policy effected by a husband
on his own life, the insurance company con-
tracted to pay to E. M., the wife of the
insured, for her sole use, " if then living,"
and, if not living, to the children of the in-
sured or their trustees for their use, or if
there should be no such children surviving,
then to the executors, administrators, or
assigns of the insured, the sum of 1,0001. On
the back of the policy were various conditions,
from which it appeared that the policy was
issued on the semi-tontine plan ; that the ton-
tine dividend period expired on June 20,
1910 ; that no dividend was to be allowed
unless the insured survived the completion of
that period and the policy should be then in
force ; that the surplus or profits derived from
semi-tontine policies not in force when their
respective tontine dividend periods expired were
to be apportioned among such as completed
their periods; and that on June 20, 1910, the
insured in question, if the policy was then in
force, would have the option of — first, with-
drawing in cash the policy's entire share of
the assets ; secondly, of converting the same
into a paid-up policy for an equivalent amount ;
thirdly, of withdrawing in cash the share of
accumulated surplus and continuing the policy
on the ordinary plan ; or fourthly, of continuing
the assurance for the original amount and
applying the entire dividend to the purchase
of an annuity payable together with the annual
dividends in cash to the insured or his assigns.
The insured's wife died before the completion
of the dividend period, leaving one daughter.
In 1905 the insured assigned his property to
a trustee for the benefit of his creditors, and
the terms of the assignment were wide enough
to include the policy if capable of assignment.
On the expiration of the dividend period the
insured was still alive, and the trustee for his
creditors claimed the right to exercise the first
option and of receiving the entire assets for
the creditors : — Held, that the options under
the policy could only be exercised for the
benefit of the persons for whom the trust was
created ; that so long as any objects of the
trust remained unperformed the trusts could
not be defeated ; that the options must be
exercised in the best manner for the benefit of
those entitled, and that the proper course was
for the insurance company to issue a paid-up
policy within the meaning of option 2 for the
benefit of the child or children surviving the
insured, and if there should be none the benefit
of it would fall into his estate. Equitable Life
Assurance Society of United States and
Mitchell, In re, 27 T. L. R. 213— Swinfen
Eady, J.
Insurance by Married Woman for Benefit
of Children.] — On August 2, 1872, a married
woman effected a policy of insurance on her
own life for the benefit of her children. By
her will she bequeathed the policy moneys to
her four daughters equally. She survived her
husband and died in November, 1914, leaving
four daughters and five sons, all of whom were
born before the date of the policy : — Held,
that the testatrix had no power, under the
Married Women's Property Act, 1870, s. 10,
to take out a policy for the benefit of her
children, and that the four daughters were
entitled to the policy moneys as legatees under
the will. Burgess's Policy, In re; Lee v.
Scottish Union and National Insurance Co.,
113 L. T. 443; 59 S. J. 546— Eve, J.
6. Receipt by Husband.
Whether Gift to Husband by Wife.]— Where
husband and wife are living together in amity,
and the husband, with the wife's consent,
receives her separate income, he is, in the
absence of an agreement express or to be in-
ferred from the circumstances, taken to receive
it in his capacity as head of the family and
is entitled to deal with it as he pleases and is
not liable to account for it to his wife or to
repay any part of it to her. It is a ques-
tion of fact whether an agreement has been
arrived at which rebuts the presumption
arising from the receipt of the wife's money
by the husband. A wife's separate income
was, with her consent, received by her hus-
band : — Held, on the evidence, that the money
was only paid to the husband for the purpose
of investment and that it remained the wife's
propertv. Young, In re; Young v. Young,
29 T. L. R. 391— Warrington, J.
7. Dealings with.
Undue Influence — Common Solicitor for
Husband, Wife, and Creditor — Surrender of
Wife's Property — No Independent Advice.] —
A married woman living with her husband,
at her husband's request and with the know-
ledge of her husband's solicitor, who was also
the solicitor of the appellant bank, in a long
series of transactions surrendered to the bank
her whole fortune as guarantee for the com-
pany of which the solicitor was a director and
shareholder, but was himself unwilling to
guarantee the liabilities : — Held, that the
transactions must be set aside ; that the
solicitor ought to have plainly informed the
lady of the whole situation and the risks which
she was incin-ring, and ought to have insisted
on her taking independent advice. Bank of
Montreal v. -Stuart, 80 L. J. P.C. 75; [1911]
A.C. 120; 103 L. T. 641; 27 T. L. R. 117—
P.C.
Transfer of Wife's Money into Joint Names
of Husband and Wife — Intention — Joint
667
HUSBAND AND WIFE.
668
Tenancy.] — A, who carried on business in a
small shop and was possessed of l,200i. in
money, married B, a workman earning wages.
According to evidence accepted by the Court,
A, both before and after marriage, announced
her intention, in the presence of B, of putting
the l,200i. in their joint names, to become the
property of the survivor; and she did, in fact,
a few days after the marriage, without any
solicitation or pressure by B, lodge the money
on deposit receipt, in the joint names of A and
B; and in answer to the question. "Whose
was the money to be? " she said in her
evidence, " On both our names to work on it
as husband and wife should." After the
marriage B paid his wages to A. and the
money on deposit receipt was drawn on from
time to time as required for the shop or other
expenses, the profits of the shop being lodged
from time to time on deposit receipt, in the
names of A and B : — Held, that the money so
lodged on deposit receipt was the joint property
of A and B during their joint lives, and would
become the absolute property of the survivor
of them. Foley v. Foley, [1911] 1 Ir. E. 281
— C.A.
8. Eestraixt ox Akticipatiox.
Restraint on Anticipation at Time of
Entering into Contract — Judgment against
Married Woman — Instalments of Annuity
Accruing Due before Judgment — Money in
Hands of Trustee." — A contract entered into
by a married woman can, under section 1 of
the Married Women's Property Act. 1893, be
enforced only against such of her separate
property as neither at the time when she
entered into the contract nor at any subse-
quent time has been subject to restraint
against anticipation. Wood v. Lewis, 83 L. J.
K.B. 1046; [1914] 3 K.B. 73; 110 L. T. 994
—C.A.
A bill of exchange was accepted by a married
woman at a time when she was entitled to the i
benefit of a deed of covenant, by the terms of i
which a sum of money was to be paid quarterly
to a trustee in trust to pay the same to her
for her separate use without power of anticipa-
tion. After the commencement of an action
against her on the bill a sum of money was
under the covenant paid to the tnistee. and five
days later judgment was entered against her
in default of defence. In garnishee proceedings
taken by the judgment creditor against the
trustee, — Held, that the sum of money in the
hands of the trustee was not attachable to
answer the judgment debt. Barnett v.
Hoicard (69 L. .T. Q.B. 9.55 : [1900] 2 Q.B. 784)
followed. lb.
9. Mortgages.
Mortgage of Wife's Estate — Money
Expressed to be Paid to Husband and Wife —
Inference — Exoneration of Wife's Estate —
Rebutting Evidence." — The law as stated by
Wood, Y.C., in Hudson v. Carmichael
(2S L. J. Ch. 893, at p. 894: Kay, 613, at
p. 620) — that " Whenever the wife's estate is
mortgaged, and the money is paid to the
husband, or " Cin a case arising before 1883)
' ' to the husband and wife ... If the deed
expresses that it was paid to the husband and
the wife ... it may be shewn by extrinsic
evidence that the payment was in fact for the
benefit of the wife. If it was not, then, the
estate of the wife being a surety for the
husband's debt, she has the advantage of that
position as against all persons except the
husband's other creditors " — and to the same
effect bv Hardwicke. L.C., in Kinnoul (Earl)
V. Money (3 Swanst. 202n., at p. 208»i.), is
not, and was not intended to be, overruled
or dissented from by Lindley, L.J. (in
delivering the judgment of the Court of
Appeal) in Paget v. Paget (67 L. J. Ch. 266,
at p. 270; [1898] 1 Ch. 470, at pp. 474, 475).
Hall V. Hall, 80 L. J. Ch. 340; [1911] 1 Ch.
487; 104 L. T. 529— Warrington, J.
To prevent an inference being drawn that
the wife was a surety only, it must be shewn
by affirmative evidence either that the money
was applied for her benefit, or that, when
raised, it became, by assent or agreement of
the husband, her separate property and was
afterwards given by her to him. 7b.
V. HUSBAND'S LIABILITIES.
See also Vol. VII. 1198. 1865.
Authority of Wife to Pledge Husband's
Credit after Leaving Him — Ostensible
Authority.] — A wife who was living with her
husband received authority from the latter to
order goods from the plaintiffs. The goods
so ordered were booked to the " account
address," that being the house at which the
wife was living with her husband, and the
bills therefore were settled by the husband.
The defendant's wife left him and went to
live with another man. Between the date
when she left her husband and the time when
he discovered her whereabouts the wife
ordered goods from the plaintiffs, which she
directed to be booked to the account address
and forwarded to the place where she was
living. On learning where his wife was, t'ne
defendant inserted an advertisement in the
newspapers stating that he would not be
responsible for her debts. In an action by
the plaintiffs against the defendant to recover
the amount due for the goods supplied to his
wife after she had left him, — Held, per
Darling, J., that the ostensible authority given
by the defendant to his wife to pledge his
credit only continued whilst she was living
with him as a virtuous wife, and did not con-
tinue after she had left him to live with
another man. Held, per Bucknill, J., that
the ostensible authority given to the wife by
her husband to order goods on his behalf was
subject to the limitation that it only applied
to such goods as were to be sent to the house
where she was living with her husband. Swan
rf- Edgar v. Mathieson, 103 L. T. 832;
27 T. L. R. 153— D.
Wife's Tort — Husband's Liability — Decree
of Judicial Separation."' — The plaintiff sued
the defendants, who were husband and wife,
to recover 3,o90Z.. which he alleged he had
been induced to pay by reason of certain false
and fraudulent statements of the female defen-
dant. The defendants were living together at
669
HUSBAND AND WIFE— INCOME TAX.
670
the time the money was so paid by the plain-
tiff, but subsequently the male defendant
obtained a judicial separation from his wife.
At the trial the jury found — first, that the
alleged misrepresentations were made b}' the
female defendant to the plaintiff; secondly,
that the alleged misrepresentations were not
made by her as agent for her husband, that
they were not made at his instigation, but that
they were made with his knowledge, authority,
and acquiescence ; thirdly, that the male
defendant derived benefit by receiving 240Z.
from his wife knowing it to be derived from
the swindle ; fourthly, that the motive of the
male defendant in petitioning for a decree of
judicial separation from his wife was to avoid
liability : — Held, that the male defendant was
in the position of an independent tortfeasor ;
that his liability extended to all money ob-
tained in consequence of the frauds in which
he took part ; and that he was liable to the
plaintiff for the full amount claimed. Burdett
V. Home, 28 T. L. R. 83— C. A.
VI. GIFTS BETWEEN HUSBAND AND
WIFE.
See also Vol. VII. 1269, 18fi9.
Presumption of Advancement — Resulting
Trust — Deposit Receipt in Names of Husband,
Wife, and Third Party.] — A placed on deposit
receipt with his bankers the sum of 1,200Z.,
his own money, in the names of himself, his
wife, and his brother. By his will, made
shortly afterwards, he left all his property to
his wife and his brother for their lives, and
after their deaths for charitable purposes.
There was no evidence beyond the fact of the
deposit to shew A's intention in making it in
the joint names : — Held, that the presumption
of advancement in favour of the wife was not
affected by the insertion of the name of the
brother in the receipt, and that he was trustee
of the fund for her. Eykyn's Trusts (6 Ch. D.
115) followed. Condrin, In re; Colohan v.
Condrin, [1914] 1 Ir. E. 89— M.R.
See also Foley v. Foley, ante, col. 667.
VII. ACTIONS BETWEEN HUSBAND
AND WIFE.
See also Vol. VII. 1272, 1871.
Marriage Settlement — Chattels Assigned to
Trustees — Wife Entitled to User — Detention
by Husband — Action by Wife — Trustees not
Joined.] — By a marriage settlement a husband
assigned to trustees certain chattels upon trust
to allow them to be used by the wife during
her life free from the control of her husband.
In an action by the wife against her husband
for the wrongful detention of the chattels, — ■
Held, that the action could be maintained by
the wife without joining the trustees of the
settlement as parties. Healey v. Healey,
84 L. J. K.B. 1454: [1915] 1 K.B. 938;
113 L. T. 694— Shearman, J.
Dispute as to Property — Reference to
Registrar to Report — Conclusiveness of
Report. 1 — Where in proceedings by a husband
to recover property from his wife under sec-
tion 17 of the Married Women's Property Act,
1882, the Judge refers the question to a
Registrar for report, it is not necessary for the
claimant to move to adopt the report, but
either party may move to vary the report, and
unless so varied the report must be taken to
be correct in subsequent proceedings. When
the report did not fnnd that the property in
dispute was in the wife's possession, an order
on the wife to deposit it in Court within
three days cannot be supported. On proof of
possession such an order may be made under
Order L. rule 3, with a view to the interim
preservation of the property pending the deter-
mination of the right of ownership. Wilder
V. Wilder, 56 S. J. .571— C.A.
ILLEGALITY.
See CONTRACT ; GAMING.
See
AND
ILLEGITIMATE
CHILDREN.
BASTARDY ; INFANT (CUSTODY
RESPONSIBILITY FOR CARE OF).
IMPRISONMENT.
Of Criminals.] — See Cuiminal L.\w.
Of Debtors.] — See Debtors Act.
INCLOSURE.
See COMMONS.
INCOME TAX.
See REVENUE.
671
INDIA.
672
INDIA.
1. AdministTation and Government, 671.
2. Jurisdiction — Courts, 671.
3. Legal Decisions, 671.
1. Administration and Government.
See also Vol. VII. 1310, 1876.
Native Prince — Extra-territoriality — Status
of Sovereign — " India,"]— The native princes
of India, falling within the class referred to
in section 18, sub-section 5 of the Interpre-
tation Act, 1889, thougli not independent, but
subject to the suzerainty of His Majesty, are
reigning sovereigns to the extent that they
are immune from the jurisdiction of an English
Court. An Indian prince, coming within this
category and sued as co-respondent in a suit
for divorce, was on his application struck out
of the proceedings. Statham v. Statham,
81 L. J. P. 33; [1912] P. 92; 105 L. T. 991;
28 T. L. K. 180— Bargrave Deane, J.
Legislative Power — Jurisdiction of Civil
Court — Claim against Government.] — The
Government of India cannot by legislation take
away the right to proceed against it in a Civil
Court in respect of any right over land.
Secretary of State for India v. Moment,
L. E. 40 Ind. App. 48; 29 T. L. R. 140— P.C.
2. Jurisdiction — Courts.
See also Vol. VII. 1313, 1877.
Jurisdiction as to Infants.] — The High
Court of Madras has no jurisdiction to make
an order directing a guardian of Hindu infants,
who are residing in England, to hand the
infants over to their father in India. Besant
V. Naraijaniah, L. R. 41 Ind. App. 314;
30 T. L. R. 560— P.C.
3. Legal Decisions.
See also Vol. VII. 1314, 1878.
Administration — Inventory Required by Law
— Approximate Lump Figure — Motion for
Enquiry — Time Limit.] — By section 98 of the
Probate and Administration Act, 1881, as sub-
stituted in tliat Act by section 15 of the
Probate and Administration Act, 1889 (Acts
of the Governor-General of India in Council),
" An executor or administrator shall, within
six months from the grant of probate or letters
of administration, or within such further time
as the Court which granted the probate or
letters may from time to time appoint, exhibit
in that Court an inventory containing a full
and true estimate of all the property in
possession ..." By section 2, sub-section 4
of the Court Fees Amendment Act, 1889 (also
an Indian Act), " If the petitioner does not
amend the valuation to the satisfaction of the
Collector, the Collector may move the Court
before wliich the application for probate or
letters of administration was made to hold an
inquiry into the true value of the property :
provided that no such motion shall be made
after the expiration of six months from the
date of the exhibition of the inventory required
by . . . section 98 of the Probate and Ad-
ministration Act, 1881 " : — Held, that the time
limited in this proviso only ran from the date
of the lodging of the inventory required by
law, and that it could not run from the deposit-
ing of a document which omitted the details
of a full and true estimate and only gave an
estimated lump figure of the approximate
value. Musammat Rameshwar Kumar v.
Oaya (Collector), L. R. 40 Ind. App. 236;
30 T. L. R. 65— P.C.
Adoption — Partition — Share of Adopted
Son.] — In certain instances, according to
Hindu law, on the distribution of family pro-
perty by partition, an adopted son is only
entitled to a reduced share, but those instances
do not include cases where there is no com-
petition between an adopted son and a
subsequently born legitimate son of the same
father. Nagindas Bhugwandas v. Bachoo
Hurkissondas, 32 T. L. R. 132— P.C.
Benami Transaction — Purchase of Bungalow
— Registration in Name of Purchaser's
Mistress.] — Held, on the facts, that the
purchase by a Rajput of a bungalow, of which
the deed of sale was registered in the name of
his mistress, was a benami transaction, which
resembled the doctrine of English law that the
trust of the legal estate results to the person
who pays the purchase money. Musammat
Bilas Kunwar v. Desraj Ranjit Singh,
31 T. L. R. 562— P.C.
Burma — Appeal to Privy Council — Award of
Compensation for Land Compulsorily Taken.]
— A special and limited appeal is given by the
Indian Land Acquisition Act, 1894, from the
award of "the Court" to the High Court,
but no appeal lies under the Act from the
Higli Court to the Judicial Committee of the
Privy Council. Rajigoon Botatoung Co. v.
Rangoon Collector, L. R. 39 Ind. App. 197 ;
28 T. L. R. 540— P.C.
Succession — Relatives — Preference.] —
According to the Burmese Buddhist law of
succession, where a family does not continue
to live together the brothers and sisters of the
deceased succeed to his property in preference
to the parents. Mah Nhin Bwin v. U Schwe
Gone, L. R. 41 Ind. App. 121; 30 T. L. E. 353
—P.C.
Company — Conclusiveness of Registrar's
Certificate.] — Tlie certificate of incorporation
of a company given by the Registrar under the
Indian Companies Act, 1882, is conclusive for
all purposes. Moosa Goolam Ariff v. Ebrahim
Goolam Ariff, L. R. 39 Ind. App. 237;
28 T. L. R. 505— P.C.
Criminal Law — Improper Admission of
Evidence.] — The Judicial Committee allowed
an appeal from a conviction for murder on the
ground that a body of wholly inadmissible
evidence had been admitted in the Indian
Court, and that when admitted it was used to
the grave prejudice of the accused. Vaithinatha
673
INDIA.
674
PiUai V. Reyem, L. E. 40 Ind. App. 193;
29 T. L. R. 709— P. C.
Special Leave to Appeal — Limit of
Jurisdiction.] — Leave to appeal from convic-
tions and sentences on the grounds of alleged
irregular conduct of the proceedings, mis-
direction of tlie jury, and misreception of
evidence refused, the case not coming within
the principle as laid down in Dillet, In re
(12 App. Cas. 459). Clifford v. King-Emperor,
83 L. J. P.C. 152; L. R. 40 Ind. App. 241—
P.C. And see Colony.
Ejectment — Land in Cantonment — Proprietor
or Licensees.] — Held, that certain land within
the Poona Cantonment was only held hy the
appellants on military or cantonment tenure,
and that the Government could resume it at
their pleasure, subject to making compensa-
tion for buildings erected by the licensees
thereon. Gliaswala v. Secretary of State for
India, 27 T. L. R. 521— P.C.
Fishery in Ganges — Shifting Channel —
Right to Follow.] — By the law of Bengal the
grantee from the Crown of a several fishery
in the river Ganges, in which new channels
are frequently formed, can follow the shifting
river for the enjoyment of his exclusive fishery
so long as the waters form part of the river
system within the upstream and downstream
limits of his grant, whether the Government
owns the subjacent soil or whether it is still
in a riparian proprietor as being the site of a
recent encroachment of the river. Raja
Srinath Roy v. Dinabandhu Sen, L. E.
41 Ind. App. 221; 30 T. L. R. 662— P.C.
Infants — Guardianship — High Court of
Madras — Jurisdiction.] — By Hindu as well as
by English law the father is the natural
guardian of his children during their minori-
ties, but this guardianship is in the nature of
a sacred trust, and he cannot therefore during
his lifetime substitute another person to be
guardian in his place. If he affects to do so,
the authority conferred upon the substituted
guardian is revocable, and the question
whether the father is entitled to revoke it
depends on the infants' interests, welfare,
parentage, and religion. The High Court of
Madras has no jurisdiction to make an order
directing a guardian of Hindu infants, who
are residing in England, to hand the infants
over to their father in India. Besant v. Nara-
yaniah, L. R. 41 Ind. App. 314; 30 T. L. R.
SiW— P.C.
Specific Performance.] — It is not within
the competence of a manager of a minor's
estate, or within the competence of a guardian
of a minor, to bind the minor or the minor's
estate by a contract for the purchase of
immovable property. Therefore such a con-
tract, if entered into, cannot be specifically
enforced. Mir Sarwarjan v. Fakaruddin
Mahomed Chowdhry, 28 T. L. R. 56— P.C.
Joint Hindu Family — Widow's Share of
Immovables on Partition — Succession.) — The
members of a joint Hindu family effecting a
partition may agree that a portion of the
property shall be transferred to the widow by
way of absolute gift as part of her stridhan
so as to constitute a provision for her stridhan
heirs ; but in the absence of such an agree-
ment the property acquired by a widow on a
partition of the joint estate is on the same
footing as property coming to her by way of
inheritance. Debi Mangal Prasad Singh v.
Mahadeo Prasad Singh, L. R. 39 Ind. App.
121; 28 T. L. R. 219— P.C.
Contract by Managing Members of
Family — Power to Sue.] — The managing
members of a Hindu joint family, who are
entrusted with the management of a business
carried on in the interests of the family, are
entitled to enforce at law the ordinary business
contracts entered into by them without join-
ing the other members of the family as
plaintiffs. Kishen Parshad v. Har Narain
Singh, L. R. 38 Ind. App. 45; 27 T. L. R.
243— P.C.
Life Insurance— Policy— Right of Assignee
as against Depositary of Policy.]— The appel-
lant and respondent each claimed to be en-
titled to the proceeds of a policy of insurance
on the life of one D. deceased. The appellant
based his claim on an assignment in writing
by D. ; the respondent based his claim upon
a deposit with him by D. of the policy as
security for the repayment of a debt : — Held,
that as by virtue of section 130 of the Indian
Transfer of Property Act, 1900, a transfer of
an actionable claim can only be effected by
an instrument in writing, the respondent
acquired no right to the policy or its proceeds,
and that the appellant, who claimed under an
instrument in writing conforming to the pro-
visions of the section, was entitled to the
proceeds of the policy. Mulraj Khatau v.
Vishwanath Prabhuram Vaidya, 29 T. L. R.
89— P.C.
Limitations, Statute of — Immovables —
Mortgage — Sale — Proceeds in Hands of
Wrongdoer— Suit against Wrongdoer— Period
of Limitation.]— By article 132 of the Second
Schedule to the Indian Limitation Act, 1877
(Indian Statute), a suit "to enforce payment
of money charged upon immovable property "
must be brought within twelve years from
the time when the money becomes due. By
article 120 a " suit for which no period of
limitation is provided elsewhere in this
schedule " must be brought within six years
from the time when the right to sue accrues.
The appellants advanced money on mortgage
of immovable property in India, and the re-
spondents advanced money on a second mort-
gage. The appellants having subsequently
obtained a decree for the sale of the property,
the property was sold, and the appellants
wrongfully obtained a balance over and above
the amount due to them, with knowledge that
such balance was affected with a charge to
the respondents. The respondents, at a date
more than six but less than twelve years after
the money became due to them, brought a
suit against the appellants to recover the sur-
plus sale proceeds : — Held, that the suit was
a suit " to enforce payment of money charged
upon immovable property " within article 162
675
INDIA— IXDUSTEIAL SOCIETY.
676
and was therefore brought in time. Bar-
hamdeo Prasad v. Tara Chand, L. E.
41 Ind. App. 45 ; 30 T. L. E. 143— P.C.
Money Paid to Prevent Compulsory Sale —
Coercion.] — The appellant's mill having been,
as he alleged, wrongfully attached by the re-
spondents, the appellant paid under protest
the sum claimed, and thereafter sued for a
return of the money so paid : — Held, that
although the payment under protest of the sum
demanded by the respondents was not the
only course open to the appellant to rid himself
of the alleged unlawful interference with his
property, it was an involuntary payment pro-
duced by coercion, and that the appellant was
entitled to maintain an action for its recovery.
Kanhaya Lai v. National Bank of India,
29 T. L. E. 314— P.C.
Mortgage — Instrument to be "attested" by
Two Witnesses."^ — Section 59 of the Indian
Transfer of Property Act, 1882, provides that
in a certain class of cases a mortgage " can
be effected only by a registered instrument
signed by the mortgagor and attested by at
least two witnesses " : — Held, that this pro-
vision requires that the witnesses should be
actually present at and witness the execution
of the mortgage, and that attestation upon the
acknowledgment of the mortgagor is not suffi-
cient. Shamu Patter v. Abdul Kadir Ravu-
than, L. E. 39 Ind. App. 218; 28 T. L. E.
583— P.C.
Pardanishin Women — Deed of Gift — Proof
of Intelligent Execution — Independent Advice. 1
— Where a person claims under a deed of gift
from a Pardanishin woman, the onus is on
the claimant to shew that the transaction had
been explained to her and that she under-
stood it, but there is no rule of law that such
a gift cannot stand unless the woman had
independent advice. If the giving of inde-
pendent advice would not really have made
any difference in the result, the deed ought to
stand. Kali Bakhsh Singh v. Ram Gopal
Singh, L. E. 41 Ind. App. 23; 30 T. L. E.
138— P.C.
Pre-emption.] — The right of pre-emption
held to exist among the Hindus of Behar.
Jadu Lai Sahu v. Maharani Janki Koer,
28 T. L. E. 369— P.C.
Punjab — Custom of Agriculturists — Sale of
Ancestral Lands — Necessity — " Just debt."]
— By the custom of the agriculturists of the
Punjab the male proprietor of lands may
validly, as against reversioners, alienate ances-
tral lands in payment of a just debt : — Held,
that a " just debt " means a debt which is
actually due and is not immoral, illegal, or
opposed to public policy, and has not been
contracted as an act of reckless extravagance
or of wanton waste, or with the intention of
destroying the interests of the reversioners.
Sardar Kirpal Singh v. Sardar Balwant
Singh, 29 T. L. E. 69— P.C.
Sale of Property — Irregularities in Publish-
ing and Conducting Sale.] — Sale of property
set aside on the ground of material irregu-
larities within the meaning of section 311 of
the Indian Code of Civil Procedure, 1882, in
publishing and conducting the sale. Tekait
Krishna Prasad Singh v. Moti Chand, L. E.
40 Ind. App. 140; 29 T. L. E. 345— P.C.
Trespass — Search of Premises Ordered by
District Magistrate in Course of Enquiry into
Disturbance — Action of Trespass against
Magistrate.] — A serious disturbance having
taken place in a district in India, the appel-
lant, a district magistrate, in the course of
his enquiry into same, ordered a search of
(inter alia) the respondent's cutcherry. The
respondent's cutcherry being locked, and there
being no one on the ground to open it, the
doors were forced and the contents of the
buildings were searched, but nothing of an
incriminating nature was found. The respon-
dent having sued the appellant for trespass
in respect of the search and obtained judg-
ment, the appellant appealed : — Held, allow-
ing the appeal, that the appellant was
warranted by the provisions of the Code of
Criminal Procedure in directing the search of
the respondent's cutcherry. Clarke v. Bro-
jendra Chowdhry, L. E. 39 Ind. App. 163;
28 T. L. E. 486— P.C.
Will — Hindu Lavf — Bequest to a Class —
Unborn Persons.] — By Hindu law, where there
is a gift to a class some of whom may be
incapacitated from taking because not born at
the time of the testator's death, and where
there is no other objection to the gift, it
enures for the benefit of those members of the
class who are capable of taking. Observations
of Wilson, J., in Ram Lai Sett v. Kanai Lai
Sett (12 Ind. L. E., Calcutta Series, 663)
approved. Bhagabati Barmanya v. Kali
Charan Singh, L. E. 38 Ind. App. 54;
27 T. L. E. 267— P.C.
INDUSTRIAL SCHOOL.
See INFANT (OFFENCES BY).
INDUSTRIAL SOCIETY.
Nomination of Property by Members — Limit
of Amount — Time of Ascertaining Amount —
Date of Nomination.] — By section 25, sub-
section 1 of the Industrial and Provident
Societies Act, 1893, a member of a registered
society is enabled to nominate a person or
persons to or among whom his property in
the society shall be transferred at his decease,
" provided the amount credited to him in the
books of the society does not then exceed 1001.
sterling " : — Held (Lord Shaw dissenting),
that as the word " then " in the proviso to the
sub-section refers to the date of nomination
and not of death, a nomination is valid if at
its date the sum standing to the credit of the
member in the books of the society does not
exceed lOOZ. , although at the date of the death
677
INDUSTKIAL SOCIETY— INFANT.
678
of the member it does exceed that sum.
Eccles Provident Industrial Co-operative
Society v. Griffiths, 81 L. J. K.B. 594; [1912]
A.C. 483; 106 L. T. 465; 56 S. J. 359;
28 T. L. E. 299— H.L. (E.)
Decision of the Court of Appeal (80 L. J.
K.B. 1041 ; [1911] 2 K.B. 275) affirmed. lb.
Life Assurance Business.] — See Hampton v.
Toxteth Co-operative Society, post, col. 731.
INEBRIATE.
See INTOXICATING LIQUORS.
INFANT.
I. Rights and Liabilities, 677.
II. Ward of Court, 681.
III. Guardianship and Maintenance, 681.
rv. Custody and Responsibility for Care
OF, 683.
V. Street Trading, 685.
VI. Offences by, 686.
I. RIGHTS AND LIABILITIES.
See also Vol. VII. 1331, 1891.
Apprenticeship Deed — Covenant by Appren-
tice to take Effect after Termination of
Apprenticeship — Breach — Right of Master to
Injunction.] — A covenant in an apprenticeship
deed, made while the apprentice is an infant,
to do or abstain from doing something after
the apprenticeship shall have terminated,
which covenant is reasonable and for the
benefit of the apprentice, is enforceable against
him. Gadd v. Thompson, 80 L. J. K.B. 272;
[1911] 1 K.B. 304; 103 L. T. 836; 55 S. J.
156 ; 27 T._ L. R. 113— D.
An apprentice, an infant, covenanted that
he would not, after the apprenticeship should
have terminated, carry on the same trade as
his master within a specified area during a
specified time. After the termination of the
apprenticeship he committed a breach of this
covenant. There was evidence that he could
not have been apprenticed except on the terms
of the covenant -.^Held, that as the covenant
was a reasonable one, and for the benefit of
the apprentice, an injunction restraining him
from committing further breaches of it should
be granted. lb.
See also Apprentice.
Contract for Employment and Instruction —
Breach — Liability for Infant for Damages —
Executory Contract — Necessaries.] — An infant,
who had acquired a reputation as a billiard
player, entered into a contract with a well-
known and ex-champion billiard player to go
for a tour with him round the world as billiard
players. The tour was to be for eighteen
months and the net earnings were to be
divided between them. The tour was to be
under the sole control and arrangement of the
adult billiard player. The infant having acted
under this contract for three weeks refused to
continue it : — Held, that the contract was one
for the employment and instruction of the
infant, and being for his benefit was binding
upon him as a contract for necessaries ; and
that he was therefore liable in damages for
its breach notwithstanding that the breach
took place at an early stage when the contract
was still to a large extent executory. Roberts
V. Gray, 82 L. J. K.B. 362; [19i3] 1 K.B.
520 ; 108 L. T. 232 ; 57 S. J. 143 ; 29 T. L. R.
149— C. A.
Professional Boxer — Enforceability.] —
An agreement by which the defendant, an
infant, who was a professional boxer, ap-
pointed the plaintiff his sole manager on com-
mission, and agreed not to take engagements
under any other management without the
plaintiff's consent for three years, held unen-
forceable against the infant, as it was a
trading contract and as it could not be con-
strued as being beneficial to him. Shears v.
Mendeloff, 30 T. L. R. 342— Avory, J.
Trading Contract — Benefit of Infant —
Liability — Claim ex Delicto — Money Had and
Received.] — An infant is not liable upon a
contract made in the course of a trade in
which he is engaged, and money paid to him
under such a contract cannot be recovered
back. But if in an action against an infant
for money had and received it can be shewn
that in substance the plaintiff's claim is a
claim ex delicto, the action is maintainable.
Cowern v. Nield, 81 L. J. K.B. 865 ; [1912]
2 K.B. 419; 106 L. T. 984; 56 S. J. 552;
28 T. L. R. 423— D.
Goods Obtained by Fraud — Necessaries —
Bill of Sale — Liability of Infant.] — In an
action brought by the plaintiff to recover from
the defendant the price of certain furniture
and effects, the defendant pleaded that at the
time he entered into the contract he was an
infant to the plaintiff's knowledge. The goods
were transferred to the defendant by an agree-
ment containing a licence to the plaintiff to
resume possession of the goods if the price
was not paid on a certain date. The defen-
dant sold some of the goods for a sum of 301.,
and, with the plaintiff's assent, transferred
the remainder by bill of sale as security for an
advance of lOOL by the grantee. The jury
found that the defendant represented that he
was of full age fraudulently to deceive the
plaintiff, and that the goods were necessaries :
— Held, that there was no evidence on which
the jury could find that the goods were neces-
saries, and that the agreement was therefore
void, and no action could be brought upon it.
But held, that in equity, where an infant has
wrongfully sold property acquired by a fraudu-
lent misrepresentation as to his age, he must
account for the proceeds of the sale to the
party defrauded, and that the plaintiff was
therefore entitled to recover the sums received
679
INFANT.
680
by the defendant in respect of the goods.
Held, further, that the agreement by which
the goods were transferred by the plaintiff to
the defendant was a bill of sale which was
governed by the Bills of Sale Act, 1878, and
not by the Bills of Sale Act, 1882, and was
not therefore void for not complying with the
requirements of the later Act. Stocks v.
Wilson, 82 L. J. K.B. 598; [1913] 2 K.B.
235; 108 L. T. 834; 20 Manson, 129;
29 T. L. E. 352— Lush, J.
Loan Obtained by Infant by Fraudulent
Misrepresentation that he was of Age —
Liability of Infant — Equitable Relief.] — An
infant obtained loans by a fraudulent mis-
representation that he was of full age : — Held,
that the infant was not liable to repay the
loans, either as damages for fraudulent
misrepresentation, or as " money had and
received," or on the ground that the infant
was compellable in equity to refund the moneys
which he had obtained bv fraud. Leslie, Lim.
V. Shiell, 83 L. J. K.b! 1145; [1914] 3 K.B.
607; 111 L. T. 106; 58 S. J. 453; 30 T. L. R.
460— C.A.
Decision of Horridge, J. (29 T. L. E. 554),
reversed. lb.
Marriage Settlement by Infant — Repudia-
tion — Reasonable Time.] — The reasonable
time within which an infant may exercise his
right to repudiate a settlement commences to
run, not from the time when the property,
the subject-matter of the settlement, falls into
possession, but from the time when the infant
attains twenty-one years of age. Jones, In re;
Farrington v. Forrester (62 L. J. Ch. 996;
[1893] 2 Ch. 461) not followed. Edwards v.
Carter (63 L. J. Ch. 100; [1893] A.C. 360)
and Carter v. Silber (61 L. J. Ch. 401 ; [1892]
2 Ch. 278) followed. Cornell v. Harrison,
60 S. J. 121— Neville, J.
Cheque — Liability on.]— The defendant, who
was an infant at the time, drew a cheque on
a date prior to July 29, 1913, making it payable
to one Bell, and postdating it August 14. The
cheque was not given for necessaries. On
July 29 the defendant came of age. On
August 11 the plaintiff cashed the cheque for
Bell, and on August 14 presented it, but it
was returned marked " Account closed " : —
Held, in an action on the cheque, that the
plaintiff could not recover. Hutley v. Veacock,
30 T. L. E. 42— Scrutton. J.
Necessaries — Hire of Motor-car for Specific
Journey — User beyond Limits Contracted for
— Damage to Car — Liability of Infant.] — The
defendant, an infant of twenty years of age
and in receipt of an allowance of 80Z. a year,
hired a motor car from the plaintiff for the
purpose of driving it to a place six miles off
to fetch his bag. It was alleged by the plain-
tiff, but not proved, that the car was hired on
the terms that it should be at the defendant's
risk. The defendant drove to the place where
his bag was, and meeting a friend drove him
to a place twelve miles further on. In the
course of this additional part of the journey
the car was damaged beyond repair without
negligence on the part of the defendant. In
an action by the plaintiff to recover the value
of the car, — Held, first, that the defendant was
not liable in tort, since his act in taking the
car for a longer journey than that contemplated
by the contract did not make him a trespasser
in regard to the car during the extended
portion of the journey, so as to render him
liable for damage done to the car without
default on his part; and secondly, that he was
not liable in contract, inasmuch as the mere
hiring of the car did not render him liable for
its loss owing to causes not depending upon any
want of skill or care on his part. Fawcett v.
Smeihurst, 84 L. J. K.B. 473; 112 L. T. 309;
59 S. J. 220; 31 T. L. E. 85— Atkin, J.
Although the hiring of the car for the
purpose in question by an infant in the position
of the defendant might be a necessary, it would
not be so if an onerous term, such as that the
car should be at the infant's risk, formed part
of the contract of hiring. 7b.
Entering on Infant's Estate with Notice
of Infant's Rights.] — A person entering upon
an infant's estate with notice of the infant's
rights becomes his bailiff, and continues to be
such bailiff, notwithstanding the infant's com-
ing of age, until the relationship is dissolved
by some other circumstance or combination of
circumstances. A demand of possession by
the infant will be such a circumstance, but if
made within six years before action brought it
affords no defence under section 3 of the Eeal
Property Limitation Act, 1874. McMahon v.
Hastings, [1913] 1 Ir. E. 395— M.E.
Deposit of Money in Joint Names of Father
and Daughter — Presumption of Resulting Trust
Rebutted.] — Where money is placed on deposit
by a father in the joint names of himself and
his daughter, and to be paid out to the
survivor, the relationship of father and child,
in the absence of special circumstances, rebuts
the ordinary presumption of a resulting trust
for the owner, and raises the presumption
that the child was meant to take beneficially
if she survived her father. Warwick, In re;
Warwick v. Chrisp, 56 S. J. 253— Parker, J.
Action by Infant Suing by Father as Next
Friend — Staying Action — Costs. 1 — The Court,
being of opinion that an action for an account
brought by an infant suing by his father as
next friend was instituted by the father w^ith
the sole object of extorting money and ought
never to have been commenced, stayed the
action on the application of the defendant and
ordered the next friend to pay the costs.
Huxley v. Wootton, 57 S. J. 145; 29 T. L. E.
132— Eve, J.
Administration Action — Infant Plaintiff —
Costs of Next Friend — Debt Due to Testator
by Next Friend — Set-off.] — The costs of a
next friend of an infant in an administration
action are treated as the costs of the infant,
and accordingly they cannot be set off against
a debt which the next friend owes to the estate.
Barton. In re: Holland v. Kersley, 56 S. J.
380— Neville, J.
Negligence of Fellow Servant — Common
Employment.] — The plaintiff, a boy of four-
<
681
INFANT.
682
teen, who had been invited by the defendants'
firemen to assist along with other boys in
pulling the defendants' fire escape home after
it had been used in fire drill, was injured in
so doing. In an action claiming damages
from the defendants the jury found, first, that
the defendants were not themselves guilty of
negligence; secondly, that the fire escape was
a fit and proper one for its purpose; thirdly,
that the defendants' servants were guilty of
negligence in the management of the fire
escape or in allowing the plaintiff to pull it ;
and fourthly, that the plaintiff was not aware
of the danger : — Held, that the doctrine of
common employment applied, and that judg-
ment should be entered for the defendants.
Bass V. Hendon Urban Council, 28 T. L. E.
317— C. A. Reversing 76 J. P. 13— Darling, J.
II. WARD OF COURT.
See also Vol. VII. 1354, 1895.
Removal Out of the Jurisdiction —
Committal.] — It is no answer to a motion for
committal to prison for contempt of Court in
removing a ward of Court out of the jurisdiction
to say that the act was done on the solicitation
of the ward, and that, although there was
knowledge that the girl was a ward of Court,
there was not full knowledge of the meaning of
that status. J. (an Infant), In re, 108 L. T.
654: 57 S. J. 500; 29 T.L. R. 456— Sargant, J.
Where there was no knowledge that the girl
was a ward of Court such ignorance of the
fact did not altogether exonerate the ignorant
parties, but constituted an alleviation of their
contempt. lb.
III.
GUARDIANSHIP AND
MAINTENANCE.
See also Vol. VII. 1424. 1899.
Vested Reversionary Interest in Realty —
Charging Order — Judgment — Registration.] —
An infant aged twelve was entitled to an
indefeasible vested interest in remainder in
real estate expectant on the death of a tenant
for life aged eighty-five years. The infant was
without any means of support. Upon applica-
tion by the infant's next friend for an order
charging the interest in remainder with the
repayment of such sums as might be advanced
for " necessaries," — Held, that the Court had
no power to make an order charging an interest
in land which is not in possession. Cadman
V. Cadman (55 L. J. Ch. 833 ; 33 Ch. D. 397)
followed. Badger, In re; Badger v. Badger,
82 L. J. Ch. 264; [1913] 1 Ch. 385; 108 L. T.
441; 57 S. J. 339— C.A.
A judgment could not formerly be enforced
against a reversionary interest in land under
the Judgments Act, 1864, because such an
interest could not be delivered in execution ;
and now a judgment cannot operate as a charge
on such a interest because, as no order to
enforce a judgment against the interest could
be made, no such order could be registered as
required by section 2 of the Land Charges Act,
1900. lb.'
In the absence of any property which it can
reach the Court will not express an opinion
that it would be right for an infant's guardian
to borrow for " necessaries." lb.
Power in Will to Apply Income of Daughter's
Share in Maintenance while an Infant and
Unmarried — Direction to Accumulate Rest
of Income — Power to Apply Income in
Maintenance between Marriage and Attaining
Twenty-one — "Contrary intention."] — A
testator gave his residuary estate on trust in
equal shares for his daughters for life, with
remainder to their issue. He empowered his
trustees to apply the whole or any part of the
income of a daughter's share for her main-
tenance while an infant and unmarried, and
directed that the residue of the income should
be accumulated and added to the share. One
of the daughters married some months before
attaining twenty-one, there being at the date
of her marriage large sums of accrued income
of her share in hand : — Held, that the will did
not express a " contrary intention " within the
meaning of section 43 of the Conveyancing Act,
1881, and that the trustees had power under
that section to apply income of the daughter's
share accruing due before her marriage for her
maintenance between the date of her marriage
and the date of her attaining twenty-one.
Cooper, In re; Cooper v. Cooper, 82 L. J. Ch.
222: [1913] 1 Ch. 350; 108 L. T. 293; 57 S. J.
389— Farwell, L.J.
Thatcher's Trusts, In re (53 L. J. Ch. 1050;
26 Ch. D. 426), followed. Order in Wise,
In re : Jackson v. Parrott (65 L. J. Ch. 281 ;
[1896] 1 Ch. 281), explained. lb.
Contingent Legacy — Legacy on Attaining
Twenty-one — Right to Interest During
Minority.] — A testator left certain specific
legacies to his children on their attaining the
age of twenty-one. He also left certain funds
to trustees to be applied for their benefit. In
a certain contingency, which had not happened,
this trust would determine : — Held, that so
long as this trust was in operation, there was
in existence a fund other than the contingent
legacy, which precluded the infant from being
entitled to the interest on that legacy as
maintenance. Steicart, In re; Steicart v.
Bosanquet, 57 S. J. 646 — Warrington, J.
Infants Contingently Entitled — Delegation
of Discretionary Power — Maintenance out of
Appointed Share.] — An attempt by the donee
of a power of appointment amongst children
to empower trustees to apply the income of
, expectant shares of the appointed fund towards
the maintenance of the children is void as
amounting to a delegation of the power.
Greenslade, In re; Greenslade v. McCotcen,
84 L. J. Ch. 235 ; [1915] 1 Ch. 155 : 112 L. T.
, 337; 59 S. J. 105— Eve. J.
Semble, the provisions for maintenance and
, education and for advancement usually inserted
in settlements do not in general apply to an
appointed share, such share being by the
appointment withdrawn from the general
i operation of the settlement. lb.
I
Jurisdiction to make Orders as to Guardian-
ship and Maintenance on Originating Sum-
mons.] — Tliere is jurisdiction upon an
originating summons to make an order as to
683
INFANT.
684
the guardianship and care, maintenance or
advancement, of infants, and thereby to make
them wards of Court. Cunninghams, In re,
[1915] 1 Ir. R. 380— C. A.
Children — Young Person — Conviction — Cost
of Maintenance — Liability.] — By section 74,
sub-section 1 of the Children Act, 1908,
" Where a youthful offender is ordered to be
sent to a certified reformatory school, it shall
be the duty of the council of the county or
county borough in which he resides ... to
provide for his reception and maintenance in
a certified reformatory school suitable to the
case, . . ." Sub-section 3: "For the pur-
poses of the foregoing provisions of this section
a youthful offender or child shall be presumed
to reside in the place where the offence was
committed, . . . unless it is proved that he
resided in some other place." Sub-section 7
empowers a local authority who are aggrieved
by the decision of a Court as to the place
of residence of a youthful offender, to apply
to a petty sessional Court, and that Court,
" on proof to its satisfaction that the youthful
offender . . . was resident in the area of
another local authority, and after giving such
other local authority an opportunity of being
heard, may transfer the liability to maintain
the youthful offender ... in a certified school
to that other local authority, ..." A boy
under sixteen years of age left his father's
residence and went into the employment of a
farmer in another county for several weeks.
He then left that employment, and entered
the service of another farmer in the same
county, where he worked for three days,
sleeping and having his meals at the farmer's
house. He was arrested, and was subse-
quently convicted and ordered to be sent to a
reformatory : — Held, that the boy was not,
at the time of his arrest, constructively resi-
dent with his parents, but that his place
of residence was the place where he was
employed, and that an order might properly
be made under section 74, sub-section 7 of
the Children Act, 1908, transferring the liabi-
lity to maintain him in a certified school to
the local authority of such place. Stoke-upon-
Trent Corporation v. Cheshire County Council,
85 L. J. K.B. 36; [1915] 3 K.B. 699;
113 L. T. 750; 79 J. P. 452; 13 L. G. R.
1077— D.
IV. CUSTODY AND RESPONSIBILITY
FOR CARE OF.
See also Vol. VII. 1504, 1904.
Custody — Illegitimate Child — Rights of
Mother — Interest of Child.]— Where an illegiti-
mate child had been adopted by the respondents
and been brought up by them for ten years,
the Court refused an application by the child's
parents for the delivery up to them of the
child, being of opinion that it would not be
for the benefit of the child to remove him from
the custody of the respondents. Rex v.
Walker, 28 T. L. R. 342— D. Compromised
on appeal, 28 T. L. R. 375— C.A.
Disobedience to Order as to Custody —
Attachment — Sequestration.] — By an order of
Court the custody of a child was given to the
mother, the father being given liberty of access
on certain days of the week. Both father and
mother gave an undertaking not to remove the
child out of the jurisdiction. The father, on
one of the days on which he had access to the
child, took her away and removed her out of
the jurisdiction. The mother applied for and
obtained a rule for habeas corpus and a rule
nisi for attachment against the father, but as
he had left the country personal service upon
him of the orders was impossible : — Held, that
the rule for attachment should be made abso-
lute, and that a writ of sequestration should
also issue notwithstanding the absence of
personal service upon the father. Rex v.
Wigand; Wigand, In re, 82 L. J. K.B. 735;
[1913] 2 K.B. 419 ; 109 L. T. Ill ; 29 T. L. R.
509— D.
After Divorce.] — See Husband and Wife.
Neglect of Children — Husband Separated
from Wife — Neglect by Wife — Liability of
Husband.] — A husband who is separated from
his wife by agreement, and who remits to her
sufficient money for the support of their
children, is nevertheless criminally liable for
neglect of the children if to his knowledge she
neglects them. Poole v. Stokes, 110 L. T.
1020; 78 J. P. 231; 12 L. G. R. 629;
24 Cox C.C. 169; 30 T. L. R. 371— D.
Illegitimate Child — Putative Father Co-
habiting with Child's Mother — Person having
"custody, charge, or care" of Child — No
Affiliation Order.] — Section 12 of the Children
Act, 1908, enacts that any person over the age
of sixteen years, who has " the custody,
charge, or care " of any child and wilfully
neglects such child in a manner likely to cause
such child unnecessary suffering or injury to
his health, shall be guilty of a misdemeanour :
— Held, that the putative father of a child,
who is cohabiting with the child's mother, but
against whom no affiliation order has been
made, may have the custody, charge, or care
of the child within the meaning of the section,
although the mother is the child's parent and
sole legal custodian or guardian, and although
the father may not be one of the persons
enumerated in section 38, sub-section 2 of the
Act as being presumed to have the custody,
charge, or care of the child. Liverpool Society
for Prevention of Cruelty to Children v. Jones,
'84 L. J. K.B. 222; [1914] 3 K.B. 813;
111 L. T. 806; 79 J. P. 20; 12 L. G. R. 1103;
24 Cox C.C. 434; 58 S. J. 723; 30 T. L. R.
584— D.
Wilful Neglect by Parent *' Causing
Injury to Health " — Failure to Provide
Adequate Medical Aid — Refusal to Permit
Operation.] — By section 12, sub-section 1 of
the Children Act, 1908, a parent is deemed to
have wilfully neglected his child in a manner
likely to cause injury to his health, if he fails
to provide {inter alia) adequate medical aid,
and is guilty of a misdemeanour : — Held, that
the question whether there has been such
failure is a question of fact in each case.
Oakey v. Jackson. 83 Ti. J. K.B. 712; [1914]
1 K.B. 216; 110 L. T. 41; 78 J. P. 87;
685
INFANT.
686
12 L. G. R. 248 ; 23 Cox C.C. 734 ; 30 T. L. R.
92— D.
The respondent's child was suffering in her
health through adenoids, for which the only
remedy was a surgical operation, which would
not be a dangerous one. This the respondent
refused to allow : — Held, that the Justices
might, on these facts, find that the respondent
had failed to provide adequate medical aid for
his child. 76.
Verminous Child — Service of Notice on
Parent.] — By a local Act the medical officer
of health was empowered to examine the person
and clothing of any school child, and if he
should be of opinion that the person or clothing
was infested with vermin or was in a foul or
filthy condition he should give notice to the
parent or guardian of such child to have him
or her cleansed within twenty-four hours. Any
notice was to be " deemed to be properly served
by giving it to the person to whom it is
addressed or leaving it for him with some
inmate of his residence " : — Held, that a notice
under the Act was properly served at the
parents' house by leaving it with the child to
whom it referred, and that the period of
twenty-four hours ran from the time of such
receipt by the child. Hope v. Devaney,
111 L. T. 571 : 78 J. P. 843 ; 12 L. G. R. 1286 :
24 Cox C.C. 393— D.
Children in Bar of Public House.] — See
Intoxicating Liquors.
Infant Life Insurance — Payment of Premiums
on Policy Effected Prior to Commencement of
Children Act, 1908.]— The Children Act, 1908,
makes it an offence for a person to insure the
life of an infant which he has undertaken to
nurse for reward : — Held, that the payment
of premiums upon a policy of insurance,
effected prior to the date when the Act came
into operation, was not an offence under the
Act. Glasgow Parish Council v. Martin,
[1910] S. C. (J.) 102— Ct. of Just.
V. STREET TRADING.
The appellants, a co-operative society, carried
on {inter alia) the business of bakers at
various establishments. They used to send
vans round daily to the houses of their mem-
bers, each in charge of a vanman assisted by
a boy. One of these boys, carrying a basket
of bread taken from the van, knocked at the
door of a member's house, which was opened
by the member, who asked for two loaves,
which she paid for. The boy, when he went
to the house, did not know whether any or
how much bread would be purchased by the
member. The vanman and boy had the appel-
lants' authority to sell to non-members on
their request, but in fact had never done so : —
Held (Atkin, J., dissentiente). that the boy
was not engaged in street trading within the
meaning of sections 2 and 13 of the Emplov-
ment of Children Act, 1903, and that the
appellants could not be convicted, under a
by-law made under that Act of employing the
boy in street trading. Held, further, that
street trading in the Act is not confined to
street trading by a person on his own account.
Stratford Co-operative and Industrial Society
V. East Ham Borough, 84 L. J. K.B. 645;
[1915] 2 K.B. 70 ; 112 L. T. 516 ; 79 J. P. 227 ;
13 L. G. R. 285; 31 T. L. R. 129— D.
Purchasing of "Article" from Child under
Fourteen.] — A local Act defined a "broker"
as a dealer in " second-hand goods or articles,
or in old metals, bones, or rags," and made
it an offence for a broker to purchase " any
article " from a person apparently under
fourteen years of age : — Held, that a com-
plaint charging a broker with purchasing from
such a person " 16 pounds or thereby in
weight of rags " was relevant, and was not
open to the objection that what the accused
was charged with purchasing was not an
" article " within the meaning of the Act.
Mlntyre v. M'Intee, [1915] S. C. (J.) 27—
Ct. of Just.
VI. OFFENCES BY.
Child " charged . . . with an offence
punishable in the case of an adult with penal
servitude or a less punishment" — Offence
Charged not Punishable with Penal Servitude
— Power to Send to Industrial School. —
Section 58, sub-section 3 of the Children Act,
1908, provides that " Where a child, ap-
parently of the age of twelve or thirteen years,
who has not previously been convicted, is
charged before a petty sessional Court with
au offence punishable in the case of an adult
by penal servitude or a less punishment . . .
the Court may order the child to be sent to a
certified industrial school." A boy between
twelve and thirteen years of age, who had not
been previously convicted, was charged before
a petty sessional Court with having committed
an indecent assault on a little girl. The
maximum punishment for such an offence in
the case of an adult is imprisonment for two
years, and not penal servitude : — Held, that
the Justices had power under section 58, sub-
section 3, to send the boy to a certified
industrial school, as the words " offence
punishable by penal servitude or a less punish-
ment " referred to two classes of offence —
namely, an offence punishable by penal servi-
tude, and an offence punishable by a less
punishment — and that they did not merely
refer to an offence punishable by penal servi-
tude or, as an alternative, by a less
punishment. Tydeman v. Thrower, 83 L. J.
K.B. 814; [1914] 2 K.B. 494; 110 L. T. 1018;
78 J. P. 182; 12 L. G. R. 739; 24 Cox C.C.
163; 30 T. L. R. 374— D.
Conviction — Child Sent to Reformatory —
Costs of Maintenance."^ — See Stnke-upon-
Trent Corporation v. Cheshire County Council,
ante, col. 683.
Proceedings against "young person" —
Attendance of Parent.] — The father of a
" young person " charged with theft was
served by a constable with a written notice
signed by the constable, stating that his son
had been summoned to appear at the Police
Court on a charge of theft, and that the father
or some other guardian must attend. The
notice also set out the powers of the Court
over the parent conferred by the Children Act,
687
INFANT— INJUNCTION.
688
1908 -.—Held, that the father had been suffi-
ciently notified that he must attend, and an
objection that in the case, at any rate, of a
" young person " (as opposed to a child) an
antecedent warrant of the Court citing the
parent to attend was necessary repelled.
Montgomery v. Gray, [1915] S. C. (J.) 94—
Ct. of Just.
INHABITED-HOUSE
DUTY.
See REVENUE.
INJUNCTION.
See also Vol. VII. 1527, 1907.
Mandatory Injunction — Contract for Main-
tenance of Structure bearing Defamatory
Inscription.] — The Court will not enforce by
mandatory injunction a contract to maintain a
structure which bears an inscription calculated
to hold up a public institution to execration
and to provoke a breach of the peace. Wood-
ivard V. Battersea Borough Council, 104 L. T.
51 ; 9 L. G. R. 248 ; 75 J. P. 193 ; 27 T. L. E.
196— Neville, J.
Legal Proceedings Necessary.] — Semble,
that an order in the nature of a mandatory
injunction, obedience to which will necessitate
the prosecution of legal proceedings, cannot be
made. Yorkshire (W. R.) Rivers Board v.
Linthwaite Urban Council (No. 2), 84 L. .T.
K.B. 1610; 113 L. T. 547; 79 J. P. 433;
13 L. G. R. 772— per Lawrence, J.
Documents — Privilege — Letters Improperly
Obtained — Copies Improperly Made — Right to
Use — Evidence.] — Where confidential docu-
ments are improperly obtained by a person who
has no right to the documents or the informa-
tion contained therein, and who has made
copies thereof, that person may be restrained
from using the originals and the copies and
from divulging their contents notwithstanding
pending litigation in which such person might
desire to use such documents as evidence by
production of the originals or by giving
secondary evidence of their contents. The
decision in Calcraft v. Guest (67 L. J. Q.B.
505; [1898] 1 Q.B. 759), that a litigant who
desires to prove particular documents, but, on
grounds of privilege cannot obtain production
of the originals, may produce copies as
secondary evidence of their contents, although
such copies have been obtained by improper
means, has no application to a case where
the subject-matter of the action is the right
to retain and make use of the originals or
copies of privileged documents improperly ob-
tained by the defendant. Ashhurton (Lord)
V. Pape. 82 L. J. Ch. 527; [1913] 2 Ch. 469;
109 L. T. 381; 57 S. J. 644; 29 T. L. R. 623
— C.A.
Pollution of Stream — Breach of Undertaking
— Motion to Sequestrate and for Injunction
— Jurisdiction to Pay Costs.] — Where the
defendants, on a motion for an injunction to
restrain them from polluting a stream, gave
an undertaking against discharging or allow-
ing to be discharged any noxious or offensive
matter so as to pollute the water of the stream,
and the plaintiffs subsequently moved to
sequestrate the defendant companies on the
ground that they had on several occasions
committed breaches of the undertaking, the
Judge, while holding that the facts strictly
entitled him to make the sequestration order,
decided that he had a discretion to grant an
injunction in the terms of the undertaking and
to penalise the defendants by ordering them to
pay all the costs of the application as between
solicitor and client, and he made such order
for an injunction and as to costs forthwith.
Marsden <f- Sons, Lim. v. Old Silkstone Col-
lieries, 13 L. G. R. 342— Sargant, J.
Restraining Receipt of Money — Contempt.!
— Where an injunction has been granted
restraining a party to an action from receiving
certain moneys, he is guilty of a contempt if
he receives the money while the injunction is
in force, although the payment was made to
him by the Government, who were not bound
by the injunction. Eastern Trust Co. v.
McKenzie, Mann <f- Co., 84 L. J. P.C. 152;
[1915] A.C. 750; 113 L. T. 346— P.C.
Property in Soda-water Bottles — Participa-
tion in Illegal Use of Property.] — An aerated-
water manufacturer sought to interdict a
drysalter from putting paraffin oil into bottles
belonging to the pursuer. The pursuer averred
that bottles belonging to him, and marked
with his name, were lent by him to his cus-
tomers in the course of his trade, and were
brought to the defender by persons coming to
purchase paraffin oil, and that at their request
the defender put paraffin oil into the bottles,
in the knowledge that the bottles were the
property of the pursuer, and that the pursuer
objected to such a practice since it injured
them for use in his business : — Held, that the
pursuer had relevantly averred participation by
the defender in a wrongful use of the pursuer's
property which, if proved, would form a good
ground for interdict against him. Wilson v.
Shepherd, [1913] S. C. 300— Ct. of Sess.
Trade Association — Expulsion of Member —
Rules— Ultra Yires.] — The Court will not
control the rules and regulations which a
majority of the members of an association
adopt for the conduct of their undertaking
unless satisfied that they are so oppressive as
to defraud the minority or violate some prin-
ciples of law. Merrifield v. Liverpool Cotton
Association, 105 L. T. 97 ; 55 S. J. 581— Eve, J.
Interlocutory Injunction — Breach of
Covenants in Lease — Parties to Action — Sub-
lessee not Added as Party by Plaintiff.] —
Where the lessor does not add the sub-lessee
as a party to his action for an injunction
against his lessee for breach of the covenants
contained in the lease, although he may be
entitled to an injunction against such lessee,
689
INJUNCTION— INNKEEPER .
690
the scope of the injunction must be confined
to the lessee, his servants and agents, and
must not extend to the sub-lessee. Metropolitan
District Railway v. Earl's Court, Lim.,
55 S. J. 807— Lush, J.
Interim Injunction against Persons not
Parties to Action.] — The Court has jurisdiction
to grant an injunction to restrain persons who
are not parties to an action from aiding and
abetting the defendant in the action in com-
mitting a breach of an injunction which has
been obtained from the Court against such
defendant by the plaintifif. The defendant in
this case was under order of the Court not to
sell certain meadow grass. He nevertheless
instructed some auctioneers to sell it. The
defendant could not readily be found, so the
plaintiff obtained an ex parte injunction
against the auctioneers : — Held, that there was
jurisdiction to continue that injunction without
adding the auctioneers as parties to the action.
Seward v. Paterson (66 L. J. Ch. 267 ; [1897]
1 Ch. 545) followed. Hubbard v. Woodjield,
57 S. J. 729— Neville, J.
Discharge — Undertaking.] — A Court of law
has no power to grant a dispensation from
obedience to an Act of Parliament and ought
not to substitute, for an injunction to obey a
statute, an undertaking by parties merely to
do their best to obey. Att.-Gen. v. Birming-
ham, Tame, and Rea Drainage Board, 82 L. J.
Ch. 45; [1912] A.C. 788; 107 L. T. 353;
76 J. P. 481 ; 11 L. G. E. 194— H.L. (E.)
The Attorney-General, at the relation of the
Tamworth Corporation and the Tamworth
Rural Council, obtained a perpetual injunction
restraining the respondents from discharging
sewage water into a river in breach of sec-
tion 17 of the Public Health Act, 1875. Upon
the appeal the respondents did not contest the
propriety of the injunction on the facts at the
trial, but obtained successive adjournments to
enable them to execute works in order to
comply with section 17. The works for this
purpose were completed, but there was a con-
flict of evidence as to their sufficiency, and
the Court referred the question to an expert,
who reported favourably to the respondents,
and the Court dissolved the injunction upon
an undertaking by the respondents to do their
best to prevent any future breach : — The
House held that, though the Court of Appeal
had jurisdiction to dissolve the injunction, it
ought not to have accepted in lieu thereof the
undertaking in its limited form, and they
inserted the words " and the defendants under-
taking that the results shall in the future be
secured, perpetuated, and maintained," and
subject to this variation affirmed the order of
the Court of Appeal. 7b.
Decision of Court of Appeal (79 L. J. Ch.
137; [1910] 1 Ch. 48) varied. lb.
INLAND REVENUE.
See REVENUE.
INNKEEPER.
See also Vol. VII. 1638, 1916.
Goods of Guest — Liability.] — The plaintiff,
who had been staying at the defendant's hotel,
paid his bill in the afternoon and directed that
his luggage should be brought from his room
and placed where he might get it without delay
when he returned later in the evening for it.
With his knowledge the luggage was placed in
the hall near where the hotel porter sat.
When the plaintiff called for the luggage later
in the evening it was missing, and he there-
upon sued the defendant, claiming in respect
of the loss. The County Court Judge held that
the relationship of innkeeper and guest had
ceased to exist when the plaintiff paid his bill,
and that there was contributory negligence on
the part of the plaintiff in the directions given
by him as to the place where the luggage
should be put. The plaintiff appealed : — Held,
that the questions whether the relationship of
innkeeper and guest had come to an end, and
whether there was contributory negligence on
the part of the plaintiff, were questions of fact,
and that as there was evidence to support the
findings of the County Court Judge the appeal
must be dismissed. Portman v. Grijfin,
29 T. L. R. 225— D.
Lien — Guest Living at Inn for Long Period
on Inclusive Terms — Motor-car Left by Guest
— Motor-car Sent by Innkeeper to Repairer
Preparatory to Sale before Lapse of Six Weeks
— Amount for which Lien Enforceable.] — In
the absence of an express or an implied
arrangement under which a visitor at an hotel
resides at the hotel in some different capacity
from that of other and ordinary visitors, an
hotel keeper cannot set up against such visitor
that he has ceased to be responsible as an
innkeeper for the loss of the guest's goods, and
equally the guest or visitor cannot set up
against the innkeeper that the latter has ceased
to have a corresponding right of lien ; and this
is so even though the visitor has been so long
at the hotel that the hotel proprietor could
refuse to keep him any longer. The mere fact
that the guest is staying at the hotel on
inclusive terms does not affect the liability or
rights of the innkeeper. A guest who had
been staying at the defendants' hotel left
there on December 21, 1910, leaving an hotel
bill unpaid, and leaving a motor car in the
hotel garage. About three weeks thereafter,
the defendants took steps to have the car sold
by auction, and for that purpose it was dis-
patched in charge of their servants to London
to a firm of auctioneers. On the way there it
broke down and had to be towed back, when it
was sent to a local repairer for the necessary
repairs. After being repaired it was taken to
the auctioneers, who advertised it in a London
and a local newspaper on January 10, 1913,
and catalogued it for sale. The sale was to
take place on February 13 — that is, more than
six weeks from December 21 : — Held, that by
sending the motor car off the premises in these
circumstances before the expiration of the six
weeks mentioned in the proviso to section 1
of the Innkeepers Act, 1878, the defendants
had not lost their lien, as they still retained
691
INNKEEPER— IN SUE ANCE.
692
charge of the car, and could have enforced
its delivery to the guest if necessary. Held,
further, that the defendants' lien only extended
to the expenses incurred by the guest in respect
of food and accommodation and the cost of
keeping his goods, and did not extend to sums
lent to, or disbursed for, him; but held that
the defendants were entitled to add to their
claim the cost of the repair of the car and the
cost of advertising it and arranging -with the
auctioneers for its sale. Chesham. Automobile
Supply V. Beresford Hotel, 29 T. L. E. 584—
Lush, J.
Money Lent by Innkeeper on Articles
Brought by Guest,] — The defendants, who
were innkeepers, lent money to a guest staying
at their hotel on the security of three railway
tickets which he had in his possession. The
tickets had been stolen from the plaintiff, who
now claimed them from the defendants. The
defendants set up that they were entitled to a
lien upon the tickets as innkeepers : — Held,
that the plaintiff was entitled to recover, as
the transaction between the defendants and the
guest was merely a money-lending transaction,
and no question of innkeeper's lien arose.
Matsuda v. Waldorf Hotel Co., 27 T. L. E. 153
— Bankes, J.
INNUENDO.
See DEFAMATION.
INQUEST.
See COEONEE.
INSOLVENCY.
See BANKEUPTCY.
INSPECTION.
Of Documents.] — See Discovery.
INSURANCE.
Marine Insurance.] — See Shipping, Marine
Insurance.
A.— Life.
I. Policy, 692.
II. Interest, 694.
III. EisK Insured, 696.
IV. Premiums, 697.
V. Mortgage and Assignment, 697.
YI. Actions on Policies, 698.
B. — National.
I. Insured Persons, 700.
II. Medical Benefits.
a. Administration of bv Approved Societies,
704.
b. P.anel Doctors, 705.
III. Contributors Entitled to Compensation
OR D.'Vmages, 706.
r\'. EeGULATIONS FOR ADMINISTRATION OP
National Insurance Act, 708.
V. Powers of Insurance Commissioners, 710.
VI. Unemployment Insurance, 710.
VII. Offences, 711.
C. — Accident, 714.
D.— Fire.
I. Contract, 716.
II. Conditions, 718.
III. Eebuilding Premises, 719.
E. — Guarantee, Plate Glass, Burglary, and
other Policies.
I. Guarantee, 720.
II. Plate Glass, 725.
III. Burglary, 726.
IV. Other Policies, 726.
F. — Insurance Companies.
I. Carrying on Life Assurance Business,
730.
n. Transfer of Business, 731.
ni. Deposit, 732.
rv. Winding-up, 733.
A. LIFE.
I. POLICY.
See also Vol. VIII. 6, 1656.
Insurance by Married Woman — Policy for
Benefit of Children.]— On August 2. 1872, a
married woman effected a policy of insurance
on her own life for the benefit of her children.
By her will she bequeathed the policy moneys
to her four daughters equally. She survived
her husband and died in November, 1914,
leaving four daughters and five sons, all of
whom were born before the date of the policy :
— Held, that the testatrix had no power.
i
693
INSURANCE.
694
under the Married Women's Property Act,
1870, s. 10, to take out a policy for the benefit
of her children, and that the four daughters
were entitled to the policy moneys as legatees
under the will. Burgess' Policy, In re; Lee
V. Scottish Union and National Insurance Co.,
113 L. T. 443; 59 S. J. 546— Eve, J.
Condition not to Travel Outside Specific
Limits without Licence — Breach of Condition
— Forfeiture of Premiums.] — A condition
indorsed on a policy of life insurance effected
in 1894 provided that if the assured should
go beyond certain geographical limits without
obtaining the insurance company's licence
" the assurance shall be void, and the
premiums paid shall be forfeited." In ignor-
ance or forgetfulness of this condition, the
assured in 1897 travelled to India, which was
outside the specified geographical limits, with-
out obtaining the company's licence. He con-
tinued to pay the premiums till 1911, when he
informed the company of his visit to India in
1897. The company thereupon replied that,
strictly speaking, the policy was void, but that
they were prepared to waive the breach of the
condition on payment of the extra premium
that would have been charged if he had in-
formed them at the time of his visit to India.
The company afterwards said that they would
waive any clairri to extra premium. The
assured, however, sued the company, claiming
the return of all the premiums paid since 1897
on the footing that the policy was void : — Held,
that, even on the assumption that the policy
became void on breach by the assured of the
condition indorsed on the policy, no action lay
for the return of the premiums as money paid
without consideration. Sparenborg v. Edin-
burgh Life Assurance Co., 81 L. J. K.B. 299;
[1912] 1 K.B. 195 ; 106 L. T. 567 ; 28 T. L. R.
51— Bray, J.
Condition that only One Policy to be in
Force on Life of Assured.! — A policy of
insurance effected by M. upon her life with the
defendant society contained the following
clause : " One policy only is allowed to be in
force on the life of the person assured and
named therein, unless special permission be
obtained from the committee of management
for any additional policy created, and should
any such additional policy be obtained without
the knowledge and consent of the committee
(which consent shall be evidence by an in-
dorsement on the policy signed by the secre-
tary of the society), such policy other than
the first shall if discovered during the life of
the assured be rejected, or if discovered after
death be null and void, and the sum or sums
assured forfeited to the society." During the
year preceding the issue of the policy in
question three other policies had been effected
on the life of M. by different persons. These
other policies were all treated by the defen-
dants as valid and the amounts due on them
had been paid. No indorsement had been
made by the defendants' secretary on the
policy in question as to the existence of the
other policies. M. having died, her executor
claimed the amount due under the policy : —
Held, that there might be a consent to the
existence of other policies without any indorse-
ment on the policy in question ; that in the
circumstances the burden of proof was on the
defendants to shew that they had not consented
to more than one policy on the life of M. being
in force ; and that as they had failed to shew
that they had not consented they were liable
on the policy in question. Marcovitch v. Liver-
pool Victoria Friendly Society, 28 T. L. R. 188
— C.A.
II. INTEREST.
See also Vol. VIII. 8, 1659.
Absence of Insurable Interest — Innocent
Misrepresentation by Insurance Agent —
Recovery of Premiums.] — Premiums paid
under a policy of life insurance which is void
by reason of the fact that the person paying
the premiums had no insurable interest in the
life of the person insured cannot be recognised
on the ground that the insurer was induced to
take out the policy on the faith of an innocent
misrepresentation by the agent of the insurance
company as to the validity of the policy.
British Workman's and General Insurance Co.
V. Cunliffe (18 T. L. R. 425) and Harse v.
Pearl Life Assurance Co. (73 L. J. K.B. 373;
[1904] 1 K.B. 558) discussed and reconciled.
Phillips V. Royal London Mutual Insurance
Co., 105 L. T. 136— D.
A policy of insurance was effected with a
friendly society on the life of a person in whom
the person effecting the policy had no insur-
able interest, and a number of premiuuas were
paid thereon. Subsequently it became known
that the policy was illegal and void for want
of insurable interest, and an action for the
return of the premiums was brought in which
it was alleged that fraudulent misrepresenta-
tions as to the validity of the policy were made
by the collector of the society. It having been
held that there was no evidence of fraud on
the part of the collector, — Held, that, fraud
not having been proved, the premiums paid
under the policy could not be recovered back,
either on the ground of money had and
received, or on the ground that the premiums
were paid for a consideration which had wholly
failed. The principles laid down in Harse v.
Pearl Life Assurayice Co. (90 L. T. Rep. 245 ;
[1904] 1 K.B. 558) applied to insurances
bv friendly societies. Evanson v. Crooks,
106 L. T. 264; 28 T. L. R. 123— Hamilton, J.
The plaintiff signed a proposal form for an
insurance with the defendants, an insurance
company, on the life of his mother, having in
fact no insurable interest in her life, and not
insuring to cover funeral expenses. The policy
proposed was one in favour of the plaintiff in
his own right, and not as agent for his mother.
No such policy was issued to the plaintiff, but
he received a policy purporting to insure his
mother on her own life and making the policy
moneys payable to her representative. The
plaintiff's mother had made no proposal for
a policy and had given no one authority to
make one for her, being in fact totally ignorant
of the matter. The plaintiff duly paid the
premiums under the policy in question. In an
action by the plaintiff to recover the premiums
so paid, the deputy County Court Judge found
that there had been no fraud on the part of
695
INSURANCE.
696
the agent of the company, but held that,
although if the plaintiff had received such a
policy as was contemplated in the proposal it
would have been illegal and the plaintiff, being
in pari delicto, would be debarred from recover-
ing the premiums, yet, since what he actually
obtained was not a policy of any kind, legal or
illegal, but a mere nullity, there was a total
failure of the consideration for which the
premiums were paid, and that the plaintiff was
entitled to recover them : — Held, allowing the
appeal, that the plaintiff was not entitled to a
return of the premiums. Elson v. Crookes,
106 L. T. 462— D.
Parties in Pari Delicto — Onus on Plaintiff
to Prove Absence of Fraud on his Part/ —
The plaintiff effected a policy of insurance with
the defendants upon the life of a person in
whom she had no insurable interest, and, for
the purpose of taking out the policies, signed a
card which contained untrue statements, filled
in by the defendants' agent, as to her relation-
ship to the person whose life was insured. The
policy contained a term to the effect that if any
material statement on the card was either
fraudulent or untrue the policy should be void
and the premiums forfeited. In an action by
the plaintiff to recover back the premiums paid
by her on the policy, — Held, first, that, in
the absence of a finding by the jury that she
was induced by the fraud of the defendants'
agent to sign the contract without knowing
its terms, she was not entitled to recover; and
secondly, that, the contract being an illegal
one, the parties were prima facie in pari
delicto, and that, in order to entitle the plain-
tiff to succeed, the onus was upon her to prove
not only that there had been fraud on the part
of the agent of the company, but also to obtain
a finding by the jury exculpating her from
participation in such fraud, and that, in the
absence of such a finding, the premiums were
not recoverable. Howarth v. Pioneer Life
Assurance Co., 107 L. T. 155 — D.
Policies on Lives of Parents — Mourning
Expenses — Fraudulent Representation by
Agent of Company.] — In 1902 the plaintiff
effected two policies with the defendants on
the lives of his father and mother respectively
to cover his expenses for mourning in the event
of their deaths. He was induced to do so by
the fraudulent misrepresentation of the defen-
dants" agent that such policies would be valid,
whereas the agent knew they were in fact
invalid for want of insurable interest. In
1909 the Assurance Companies Act, 1909, was
passed. Section 36, sub-section 2 of that Act
validated certain policies (within which the
policies in question came) effected before the
Act, which, apart from the Act, would have
been void for want of insurable interest : —
Held, that the sub-section did not validate
policies which would otherwise come within
its meaning, if such policies had been obtained
bv fraud. Tofts v. Pearl Life Assurance Co.,
84 L. J. K.B. 286; [1915] 1 K.B. 189;
112 L. T. 140; 59 S. J. 73; 31 T. L. R. 29—
C.A.
Funeral Expenses — Policies Effected with
Several Companies — Amount Assured in Excess
of that Expended by Assured — Capacity of
Assured to Recover Full Amount Assured.] —
Where a person effects several policies of
insurance with different insurance companies
against any funeral expenses he may incur on
the death of his mother, and, on the mother's
death, is paid by one or more of such companies
the full amount of such funeral expenses he
cannot maintain a further claim against
another of the companies which has failed to
pay him the amount of the policy he has
effected therewith. Neither can he, in the
absence of fraud or mistake of fact, obtain the
return of the premiums he has paid to this
latter company, the company having been
under a risk during the whole of the currency
of the policv. Wolenberg v. Royal Co-operative
Collecting "Society, 84 L. J. K.B. 1316;
112 L. T. 1036— D.
Semble, policies issued under section 36,
sub-section 1 of the Assurance Companies Act,
1909, are policies of indemnity. 7b.
III. RISK INSURED.
See also Vol. VIIL 15, 1661.
Exception — Death from Inhalation.] — A
life insurance policy provided that it did not
" insure against death or disablement by acci-
dent directly or indirectly caused to any extent
by medical or surgical treatment or fighting,
ballooning, racing, self-injury or suicide, or
anything swallowed or administered or in-
haled." The assured was found dead in a
house of which he was the sole occupant.
His body was in the lavatory, where the gas
was turned on but not lighted. The insurance
company repudiated liability on the ground
that death was caused by " inhalation " : —
Held, that the company were not liable on
the policy. United London and Scottish Insur-
ance Co., In re: Brown's Claim, 84 L. J. Ch.
620 ; [1915] 2 Ch. 167 ; [1915] W.C. & I. Rep.
485; 113 L. T. 397; 59 S. J. 529; .31 T. L. R.
419— C.A.
Decision of Astbury, J. (31 T. L. R. 202),
reversed. 7b.
Re-insurance — Conditions of Life Policy —
Settlement in Good Faith — Liability of Re-
insurers.]— The respondent society granted a
policy of insurance on the life of one M., which
recited that a declaration and statement made
by M. were the basis of the contract, and
that the policy should be void if any document
upon the faith of which it was granted should
contain any untrue statement. The respon-
dents afterwards effected a policy of re-
insurance on the life of M. with the appellant
society. The proposal form stated that in
accepting the risk the appellants did so on the
same terms and conditions as those on which
the respondents had granted a policy, " by
whom in the event of claim the settlement
will be made." The policy of re-insurance also
recited that the declaration and statement
relating to the original insurance were the
basis of the contract and were to be deemed to
be incorporated therewith. M. died, and the
respondent society paid the claim of his exe-
cutrix on the policy, acting reasonably and in
good faith in the honest exercise of their
697
INSURANCE.
698
discretion. Afterwards it appeared that M.
had made false statements as to his health, and
the appellant society refused to pay the claim
of the respondents on the policy of re-insurance :
— Held, that the policy of re-insurance was an
independent contract, not a contract of in-
demnity, conditional on the truth of the state-
ments which were made the basis of it, and
that the appellants were not liable under it,
notwithstanding that the respondents had
acted reasonably and in good faith in paying
the claim under the original policy. Australian
Widows' Fund Life Assurance Society v.
National Mutual Life Association of Austra-
lasia, 83 L. J. P.C. 289; [191-1] A.C. 634;
111 L. T. 353— P.C.
IV. PEEMIUMS.
See also Vol. VIIL 30, 1664.
Husband's Life Premiums Paid by Wife —
Lien.] — Where a wife, by reason of the
impecuniosity of her husband, paid the pre-
miums on the policies on his life to prevent
the policies from lapsing, it was held that she
could not be recouped for such payments out
of the policy moneys on his death. Leslie,
In re; Leslie v. French (52 L. J. Ch. 762;
23 Ch. D. 552), applied. Jones' Settlement,
In re; Stunt v. Jones, 84 L. J. Ch. 406;
[1915] 1 Ch. 373; [1915] W.C. & I. Kep.
277 ; 112 L. T. 1067 ; 59 S. J. 364— Astbury, J.
Recovery of Premiums — Payment Induced
by Fraud.] — Premiums paid on a life insur-
ance policy which is prohibited by statute
under a penalty cannot be recovered back,
even if the payment of the premiums was
induced by a fraudulent representation on the
part of the insurance company or their
employees. Hughes v. Liverpool Victoria
Legal Friendly Society, 31 T. L. E. 635—
Scrutton, J.
See also cases under II. Interest,, ante,
col. 694.
Infant Life Insurance — Payment of
Premiums on Policy Effected Prior to Com-
mencement of Children Act, 1908.] — The
Children Act, 1908, makes it an offence for a
person to insure the life of an infant which
he has undertaken to nurse for reward : —
Held, that the payment of premiums upon a
policy of insurance, effected prior to the date
when the Act came into operation, was not
an offence under the Act. Glasgow Parish
Council V. Martin, [1910] S. C. (J.) 102—
Ct. of Just.
V. MORTGAGE AND ASSIGNMENT.
See also Vol. VIII. 45, 1665.
Half Credit Policy — Ineffective Charge on
Policy — Equitable Sub-mortgage — Payment of
Premiums by Sub-mortgagee — Redemption on
Payment of Premiums.] — In 1858, C, a
married woman, effected a policy on her own
life which provided that if she elected to pay,
during the first seven years, one-half of the
annual premiums, the unpaid half premiums
were to be a debt at 5 per cent, interest due
to the insurance company, and the unpaid
premiums with interest should be " held as
a claim against the policy at settlement."
The assured availed herself of the option, and
in 1867 she deposited the policy with W. to
secure money advanced. In 1879 W. de-
posited the policy with Y. to secure money
advanced. Y. died in September, 1905. From
September, 1880, to the death of the assured
in November, 1913, the interest on the half
premiums and the renewal premiums had been
paid by Y'. or persons claiming under him.
The executor of C. now claimed the policy
moneys as against the representatives of Y'. :
— Held, that the policy being a reversionary
chose in action in personalty, neither W. nor
Y. could acquire any title from C, but that
as the relationship of mortgagor and mort-
gagee had been established by the keeping
down of the interest on the unpaid premiums,
the executor of C. could only redeem on pay-
ment of such interest, and of the renewal
premiums with interest on the latter at 4 per
cent. Citii of Glasgow Life Assurance Co.,
In re; Clare's Policy, 84 L. J. Ch. 684;
112 L. T. 550; [1915] W.C. & I. Rep. 481
—Eve, J.
Joint Tenancy — Payment of Premiums by
one Joint Tenant at Request of other — Assign-
ment by other Joint Tenant — Equity — Lien.]
— A wife and husband agreed that each should
pay one-half of the premiums on a policy of
insurance on their joint lives, payable on the
death of whichever died first. In several
years the wife at the husband's request paid
the whole of the premiums. Charges were
created on the policy by both jointly, and
subsequently the husband assigned all his
property to a trustee for the benefit of his
creditors. There was no specific mention of
the policy in the deed of assignment, and no
notice of the deed w^as given to the insurance
company. The husband died and one moiety
of the balance of the policy moneys (after
deducting the joint charges) proved less in
amount than the premiums paid by the wife
for her husband : — Held, that, the wife being
entitled to the policy moneys at law, the only
claim of the trustee was in equity, and that
he must do equity and allow the wife (as
against him) to set off her claim against her
husband. Held, further, that the wife was
entitled to a lien on the policy moneys for
premiums paid by her at the request of her
husband. McKerrell, In re; McKerrell v.
Gowans, 82 L. J. Ch. 22; [1912] 2 Ch. 648;
[1913] W.C. & I. Eep. 85; 107 L. T. 404
— Joyce, J.
Semble, that the assignment, in the circum-
stances, passed to the trustee no interest what-
ever, whether legal or equitable, in the policy
moneys, but that, if the husband had survived
the wife, it might have passed the right to all
the policy moneys. 76.
See also Harrington v. Pearl Life Assur-
ance Co., infra.
VI. ACTIONS ON POLICIES.
See also Vol. VIIL 73, 1668.
Proposal — Acceptance — Assignment of Policy
— Illness of Insured before Payment of
699
IXSUEANCE.
700
Premium — Action by Assignee.]— One Bent ley
signed proposals for the insurance of his life
with the defendants, an insurance company,
and their medical officer certified that his life
was a good one. The proposals were accepted,
but came to an end owing to the premiums
not being paid within the prescribed time.
Subsequently, on October 1, 1912, Bentley
made fresh proposals on the same terms, the
policies to begin from October 18, the appli-
cant declaring that there had been no material
change in his health since examination. The
fresh proposals were accepted by the defen-
dants, who stated that the policies would be
forwarded if the premiums were received
within thirty days. On November 4 Bentley
purported to assign one of the policies to the
plaintiff, and on November 6 was taken ill.
On November 8 the plaintiff paid the first
premium, and later on the same day Bentley
died. On November 12 the plaintiff handed
the assignment to the defendants' agent. In
an action on the policy it was submitted for
the defendants that until the first premium
was paid the warranties as to the health of
the insured remained in force : — Held, that
there was no real assignment by Bentley to
the plaintiff, that the policy if issued would
have been Bentley's, and that as the defen-
dants would never, with knowledge of the
facts, have issued the policy, the action must
fail. Harrington v. Pearl Life Assurance
Co.. 30 T. L. R. 613— C.A.
Decision of A. T. Lawrence, J. (30 T. L. E.
24), af&rmed. lb.
Arbitration Clause — Questions of Law — Life
Insurance Policy .1 — A life insurance policy
provided that it should not cover death by war,
and the policy contained an arbitration clause.
The assured lost his life by the explosion
which caused the loss of H.M.S. Bulwark, and
his executrix brought an action on the policy
against the insurance company. The defen-
dants applied to have the action stayed. The
plaintiff contended that as serious questions of
law were involved the case ought not to be
sent to arbitration : — Held, that the Court
was not justified in refusing the application
merely because there were important questions
of law to be considered, and that as no suffi-
cient reason had been shewn why the contract
to submit to arbitration should not be observed
the action must be stayed. Lock v. Army,
Navy, and General Assurance Association,
31 T. L. R. 297— Astbury, J.
Deceased Policy-holder Domiciled Abroad —
Foreign Executor — No Grant of Representation
from Court in United Kingdom — Right to
RecoYer Policy Moneys — " Receive."] — By
section 19 of the Revenue Act, 1889, where a
policy of life insurance has been effected (with
a British insurance company) by a person who
shall die domiciled elsewhere than in the
United Kingdom, the production of a grant
of representation from a Court in the United
Kingdom shall not be necessary to establish
the right to receive the money payable in
respect of such policy : — Held, that the pro-
duction of such grant was also not necessary
to establish the right of a foreign executor
of a testator who had died domiciled abroad
to recover as well as receive the policy moneys.
Haas V. Atlas Insurance Co., 82 L. J. K.B.
506; [1913] 2 K.B. 209; [1913] W.C. & I.
Rep. 375; 108 L. T. 373; 57 S. J. 446;
29 T. L. R. 307— Scrutton, J.
Consideration of the insurance company's
right to retain out of the policy moneys a sum
estimated to be sufficient to meet any claim
by the Revenue authorities to estate duty
payable on such moneys. lb.
B. NATIONAL.
I. INSURED PERSONS.
Curates in the Church of England.]— The
work and duties of a curate in the Church of
England, whether he be appointed under a
bishop's formal licence given under seal or
merely as a probationer under a bishop's
signed permit, are not employment " under
any contract of service " within the meaning
of Part I. of the National Insurance Act,
1911 ; and no curate is therefore compulsorily
insurable under that Act. Church of England
Curates' Employment, In re, 82 L. J. Ch. 8;
[1912] 2 Ch. 563; [1913] W.C. & I. Rep.
34; 107 L. T. 643; 28 T. L. R. 579—
Parker, J.
Assistant Missionaries — Student Missionaries
— Lay Missionaries.] — Assistant missionaries
in the Church of Scotland and United Free
Church of Scotland are not employed persons
within the meaning of the National Insurance
Act, 1911, in respect that they are persons
holding an ecclesiastical office and perform
the duties of that office subject to the general
laws of the Church, and not subject to the
control and direction of a master under a
contract of service. Student missionaries in
connection with the same Churches are not
employed persons, in respect that their services
are rendered as an incident in the course of
their studies and not as work done under a
contract of service ; but lay missionaries who
hold no ecclesiastical status and are appointed
by, and are subject to the control of, a
minister or kirk session or a committee, are
employed persons within the meaning of the
Act. Scottish Insurance Commissioners v.
Church of Scotland, [1914] S. C. 16— Ct. of
Sess.
United Methodist Ministers.1 — The em-
ployment of ministers of the United Methodist
Church and the employment of ministers
(^under probation) of the Wesleyan Methodist
Church by the conference of each of those
Churches, or by the circuits to which the
ministers are attached, is not employment
within the meaning of Part I. of the Insurance
Act. 1911. United Methodist Church
Ministers. In re, 107 L. T. 143; 56 S. J.
687; 28 T. L. R. 539— Joyce, J.
Medical Staff of Infirmary.] — Persons ap-
pointed to act in an infirmary — first, as
resident physicians and resident surgeons ;
secondly, as non-resident house physicians,
non-resident house surgeons, and clinical
assistants ; and thirdly, as supervisors of the
701
INSURANCE.
702
administration of anaesthetics, — Held, not to
be persons employed within the meaning of
the National Insurance Act, 1911, in respect
that, as the managers of the infirmary had no
control over the manner in which these
members of the staff carried out their treat-
ment of the patients, no contract of service
existed between them. Scottish Insurance
Commissioners v. Edinburgh Royal Infirmary,
[1913] S. C. 751; [1913] W.C. & I. Eep.
383— Ct. of Sess.
Pupil Teachers and Monitors.] — The em-
ployment of pupil teachers and monitors in
National schools in Ireland is an employment
wathin the meaning of the National Insurance
Act, 1911, and the Commissioners of National
Education are the employers. It is not a
contract of apprenticeship, because an essential
element of apprenticeship — the right to receive
instruction — is absent from the contract, but
is a contract of service within the meaning
of Part I. section 1, sub-section 1 of the Act.
Pupil Teachers and Monitors, In re, [1913]
1 Ir. E. 219; [1913] W.C. & I. Eep. 366—
Barton, J.
Officers of Poor Law Union.] — Officers of a
poor law union are not employed under a con-
tract of service within the meaning of Part I.
of Schedule I. to the National Insurance Act,
1911. South Dublin Union Officers, In re,
[1913] 1 Ir. E. 244; [1913] W.C. & I. Eep.
245— M.E.
School Attendance Inspector — " Employed
contributor."] — A person appointed as school
attendance inspector by a school attendance
committee under the provisions of the Irish
Education Act, 1892, is an " employed con-
tributor " within the meaning of the National
Insurance Acts, 1911 to 1913, and the com-
mittee is liable for the payment of the contri-
butions in respect of them. O'Callaghan v.
Irish Insurance Commissioners, [1915]
2 Ir. E. 262; [1915] W.C. & I. Eep. 412—
K.B. D.
" Employment under any local or other
public authority " — Pilots Appointed and
Licensed by Port Authority under Local Act.]
— Pilots appointed and licensed by the Port
Authority under a local Act, held (Dodd, J.,
dissenting), not to be employees of or under
the Port Authority, who were therefore not
liable to contribute to the insurance of the
pilots under the National Insurance Acts, 1911
to 1913. Westport Port and Harbour Com-
missioners V. Irish Insurance Commissioners,
[1915] 2 Ir. E. 283; [1915] W.C. & I. Eep.
406— K.B. D.
Share Fishermen.] — Share fishermen re-
munerated by shares in the profits of fishing
vessels, and under an obligation sanctioned
by custom to share any losses incurred, but
having no proprietary interest in the vessels,
nets, or gear; and also net share fishermen,
eimilarly situated except that they received
in addition to such share of profits a further
share thereof in respect of their ownership of
the nets used on board the vessels, held not
to be employed persons within the meaning
of the National Insurance Act, 1911. Scottish
Insurance Commissioners v. M'Naughton
[1914] S. C. 826— Ct. of Sess.
"Employment otherwise than by manual
labour " — Lithographic Artist — Engraver.] —
Lithographic artists and engravers engaged in
the correction or improvement of half-tone
engraved plates are employed otherwise than
by way of manual labour within Schedule I.
Part II. ig) of the National Insurance Act,
1911. Where, therefore, the remuneration of
such persons exceeds 160/. a year they are not
employed contributors within the meaning of
Part I. of the Act. Lithographic Artists, In
re; Engravers, In re, 108 L. T. 894; 57 S. J.
557; 29 T. L. E. 440— Warrington, J.
Dairyman's Foreman — Tailor's Cutter.] —
The question whether a person is employed
in manual labour within the meaning of
Schedule I. Part II. clause (g) of the National
Insurance Act, 1911, is to be determined by
considering whether any manual labour that
he may do in the course of his service is the
real substantial work for which he is engaged,
or whether it is only incidental or accessory
thereto. If it is the latter the employment is
not employment in manual labour. The em-
ployments of a dairyman's foreman and tailor's
cutter, — Held, not to be employment in
manual labour within the National Insurance
Act, 1911, inasmuch as, although those persons
did some manual work, their duties were
mainly supervisory. Dairymen's Foremen,
In re, and Tailor's Cutters, In re, 107 L. T.
342; 28 T. L. E. 587— Swinfen Eady, J.
Master Tailors — Outworkers.] — Master
tailors, who make up and finish garments for
merchant tailors or wholesale clothing manu-
facturers, the work being done at the house or
other premises of the master tailors, are em-
ployed as outworkers within Part I. (c) of
Schedule I. of the National Insurance Act,
1911, and persons engaged as such are
" employed contributors " within section 1 of
the Act unless they come within the excep-
tions in Part II. of Schedule I. or are
exempted by the Insurance Commissioners.
Master Tailors as Outworkers, In re,
29 T. L. E. 725— Warrington, J.
One Workman Employing Another — Non-
liability of Head Employers.] — Informations
were laid against the respondents, who were
the owners of silk mills, for non-payment of
contributions under the National Insurance
Act, 1911, in respect of two women, and it was
proved that a number of block printers were
employed by the respondents and that the two
women were " tierers " who assisted the block
printers. Each " tierer " was selected and
engaged by the workman whom she was to
assist, and the respondents had no voice in the
selection. The wages of each " tierer " were
paid by the workman who had engaged her,
and she could be dismissed from her work by
him. The Justices found that the " tierers "
were not under the general control and man-
agement of the respondents, and therefore
dismissed the summonses : — Held, that the
question was a question of fact for the Justices.
703
INSUKANCE.
701
Neicell V. King, 110 L. T. 76; 78 J. P. 23;
1-2 L. G. R. 132 ; 30 T. L. E. 34— D.
Workman Engaged by Foreman — Indepen-
dent Contractor — Relationship of Master and
Servant.] — A firm of coal merchants em-
ployed a yard foreman, for the purpose of
loading and unloading coal at the yard, who
was paid by the iirm weekly at a fixed rate
per ton of coal handled. His earnings
amounted to less than 27s. a week, and he
was an employed contributor under the
National Insurance Act, 1911. As the work
at the yard could not be done by one man
alone, the foreman, by the instructions of the
firm, engaged other men to assist. The fore-
man received from the firm the amount at the
fixed rate due for all coal handled at the yard,
which he divided between himself and the men
employed, all taking equal shares. If the
foreman was away, one of the other men
received the monej- and shared it equally
among those who had done the work. The
firm supervised the work of loading and
unloading, and exercised control over the men
in the performance of their duties. The fore-
man engaged and dismissed the men, but the
firm had the right to require the foreman to ,
dismiss a particular man. The firm was sum-
moned for not paying a contribution under the
National Insurance Act, 1911, in respect of ,
one of these man : — Held, that the man was a I
person employed by the firm within the mean- |
ing of the National Insurance Act, 1911, and !
that he was not employed by the foreman as '
an independent contractor, and that therefore
the coal merchants were liable to pay insurance
contributions in respect of him. Hill v. |
Beckett, 84 L. J. K.B. 458; [1915] 1 K.B.
578; [1915] W.C. & I. Rep. 1; 112 L. T. 505;
79 J. P. 190; 13 L. G. E. 530— D.
Repair of Roads Entrusted to Contractor —
Labourers Appointed by County Surveyor,
Paid by and Bound to Obey Orders of Con-
tractor as well as those of Surveyor.] — A
county council entrusted the repair of certain
roads to a contractor. The terms of the con-
tract provided that the contractor should
" keep " a surface man and pay him at a rate
of wages prescribed by the county council ;
that the surface labourers " will be appointed
by the county surveyor, and may be dismissed
by him at any time on just complaint from
the contractor, or for other causes." According
to the " instructions for surface labourers "
embodied in the contract, the surface men
were bound to attend closely to the orders of
the assistant surveyor and to those of the con-
tractor when the assistant had not given any
particular instructions. The Irish Insurance
Commissioners issued a summons against the
county council, as employers of the surface
men, for failure to pay the contributions under
the National Insurance Act in respect of the
surface men : — Held, that the contract of ser-
vice was between the contractor and the surface
men, and that accordingly the contractor, and
not the county council, was liable for payment
of the contributions. Held, also, that where
a county council enter into a contract for the
repair of roads, they cannot legally reserve for
the county surveyor, or for a person employed
by him, the performance of part of that repair.
Down County Council v. Irish Insurance Com-
missioners, [1914] 2 Ir. R. 110— K.B. D.
Workmen Employed on Roads under
System of Direct Labour — Power of County
Council as to Giving Disablement Benefits.]
— A county council has no power to give to
workmen employed on roads under a system of
direct labour terms of employment securing to
them provision in respect of disablement as
favourable as that conferred by Part I. of the
National Insurance Act, 1911, and a county
council cannot therefore, as regards such
workmen, bring itself within the exception in
Part II. of the First Schedule to the Act.
Tipperary County Council v. Irish Insurance
Commissioners, [1915] 1 Ir. E. 79— M.E.
II. MEDICAL BENEFITS.
a. Administration of by Approved Societies.
Proof of Disease — Rule of Society Requir-
ing Medical Certificate or other Sufficient
Evidence of Incapacity — Resolution Requiring
Certificate of Panel Doctor — Ultra Yires —
Action for Declaration — Dispute between
Society and Member — Arbitration in Accord-
ance with Rules. 1 — The plaintiff, being an
insured person under the National Insurance
Act, 1911, and a member of an approved
society, sent to the secretary of the society a
claim for sickness benefit, offering as proof of
sickness a certificate of a medical man who was
not on the panel of doctors specified in
section 15 of the Act. Payment of sickness
benefit was refused on the ground of a resolu-
tion passed by the society to the effect that in
every claim for sickness benefit the insured
person should send a certificate of a panel
doctor. By the rules of the society, which
had been approved by the Insurance Commis-
sioners, no member was entitled to sickness
benefit until he had sent to the secretary a
medical certificate or other sufficient evidence
of incapacity for work. In an action brought
by the plaintiff, suing on behalf of himself
and all other members of the society except
the defendants, against the trustees and the
secretary of the society on behalf of the society,
for a declaration that the resolution was illegal
and ultra vires. — Held, that the resolution was
illegal and ultra vires, and that, notwithstand-
ing section 67 of the Act, by which every
dispute between a society and a member was
to be decided by arbitration, the plaintiff was
entitled to a declaration as claimed. Heard v.
Pickthorne, 82 L. J. K.B. 1264; [1913]
3 K.B. 299; [1913] W. C. & I. Eep. 685;
108 L. T. 818; 11 L. G. E. 621; 57 S. J. 532;
29 T. L. E. 497— C.A.
Medical Certificate — Evidence of Incapacity
— Sufficiency of Certificate — Dispute between
Member and Society — Jurisdiction of Court.]
— By the rules of an approved society under
the National Insurance Act, 1911, it was
provided that, with regard to sickness and
disablement benefits, an illness should not be
deemed to commence or continue unless the
member was rendered incapable for work by
" some specific disease or by bodily or mental
1
705
INSUEANCE.
706
disablement," and that he should send notice
of illness to the local secretary . . . and
should not be entitled to sickness benefit until
he had sent to the local secretary ... a
medical certificate or other sufficient evidence
of incapacity and its cause ; also that disputes
arising between insured members and the
society should be decided by the general dele-
gates' meeting. The plaintiff, an insured
member of the society, sent to their local
secretary a claim for sickness benefit accom-
panied by a medical certificate which stated
that she was " suffering from debility and
unable to work." The society required the
certificate to be amended by a statement of
the cause of the debility, and refused to pay
unless this was done. The plaintiff thereupon
sued the society, claiming an injunction to
restrain them from refusing to accept and con-
sider the medical certificate as evidence of her
claim to sickness benefit and also a sum of
money representing three weeks' sickness
benefit : — Held, that the matter was a dispute
within section 67, sub-section 1 of the National
Insurance Act, 1911, that it must be decided
by the tribunal created by the society's rules,
and therefore that the Court had no juris-
diction to entertain the claim. Heard v.
Pickthorne (82 L. J. K.B. 1264; [1913] 3 K.B.
299) distinguished. Bailey v. Co-operative
Wholesale Society, 83 L. J. K.B. 948; [1914]
2 K.B. 233; 110 L. T. 816; 78 J. P. 285;
12 L. G. K. 545 ; 58 S. J. 304 ; 30 T. L. R. 299
— D.
b. Panel Doctors.
Panel — Requirement of Duplicate Prescrip-
tions — Refusal by Practitioner — Removal
from Panel.] — Where an insurance committee
under the National Insurance Act, 1911, have
made an agreement with a medical practitioner
which incorporates the Act and which does not
deprive him of his right to be removed from
the panel without an enquiry under section 15,
sub-section 2 (b), and have placed his name
on the panel, the committee have no power to
remove his name from the panel if he declines
to make out prescriptions in duplicate, inas-
much as the period of service can only be
terminated by the act of the practitioner or
after an enquiry into his alleged default. Rex
V. County of London Insurance Committee ;
Salter, Ex parte, 111 L. T. 835; 79 J. P. 36;
12 L. G. E. 1262; 30 T. L. E. 607— D.
Drug Fund — Deficit — Requirement of Con-
tribution from Doctors on Panel.] — A pharma-
ceutical committee under the National Insur-
ance Acts, in consequence of a deficit in the
drug fund, requested the panel committee for
an investigation into cases where panel doctors
had ordered drugs beyond the average
amount. This request was granted and the
panel committee reported to the insurance
committee that there was a deficit in the
drug fund and recommended them to make
it up by requiring any doctor who had
ordered drugs in excess of the average to
contribute in proportion to the amount of the
excess. The plaintiff was a panel doctor and
he had had no opportunity of attending the
investigation, but he received notice that in
his account with the insurance committee he
was to be debited with his share of the con-
tribution. In an action by the plaintiff
against the insurance committee for an
injunction restraining them from deducting
the amount from the money due to him
under the Act, — Held, that as the pharma-
ceutical conmiittee had not made a repre-
sentation to the panel committee in the
terms of regulation 40 of the National Health
Insurance (Medical Benefit) Eegulations
(England), 1913, and as the panel com-
mittee did not report to the insurance com-
mittee that any practitioner had been
extravagant in ordering drugs, and as the
report was therefore not a report within
the terms of the regulation, the plaintiff
was entitled to the injunction even if the
regulation was not ultra vires. Moore v.
Leicester Insurance Committee, 32 T. L. R. 80
— Eowlatt, J.
Fees of Panel Doctor — Moneys in Hands of
Insurance Committee — Debt " owing or
accruing."] — When an insurance committee
has received moneys from the Insurance Com-
missioners for the purposes of the National
Health Insurance Acts, a debt becomes due
from the committee to every panel doctor who
has done work within their area, although the
exact amount payable to him under his agree-
ment with the committee may not, as a
matter of calculation, have been ascertained.
O'Driscoll V. Sweeny, 84 L. J. K.B. 734;
[1915] 1 K.B. 811 ; 112 L. T. 594 ; 59 S. J.
235; 31 T. L. E. 103— Eowlatt, J. Affirmed,
85 L. J. K.B. 83; [1915] 3 K.B. 499;
113 L. T. 683 ; 13 L. G. E. 1156 ; 59 S. J. 597 ;
31 T. L. R. 532— C.A.
It is not contrary to public policy that such
a debt should be attached under Order XLV.
rule 1, as a debt " owing or accruing " from
the committee to the doctor. lb.
III. CONTEIBUTORS ENTITLED TO
COMPENSATION OR DAMAGES.
Right of Approved Society to take Proceed-
ings for Compensation in Name of Workman.]
— In the provision in section 11, sub-section 2
of the National Insurance Act, 1911, that,
where an insured person appears to be entitled
to compensation or damages under the Work-
men's Compensation Act, 1906, or otherwise,
" and unreasonably refuses or neglects to take
proceedings to enforce his claim," it shall be
lawful for his approved society to do so in his
name, the word " neglects " connotes a failure
to do something which is a matter of legal or
moral obligation, or a failure to comply with
a request made bv a person entitled to make
it. Rushton v. Skey d Co., 83 L. J. K.B.
1503; [1914] 3 K.B. 706; [1914] W. C. & I.
Rep. 497; 111 L. T. 700; 58 S. J. 685;
30 T. L. R. 601— C.A.
A workman met with an accident in
January, 1913, and was incapacitated until
February 3, 1913, receiving compensation
during this time from his employers at the
rate of 17s. 2d. a week. He was again in-
capacitated on July 6, 1913, from the same
trouble, and was away from work for over
two months. During this time he received
23
707
INSURANCE.
708
los. a week from his approved society, but
no compensation from his employers. On
September 2, 1913, the approved society sent
him a form asking questions as to his accident
and injury, and as to whether he proposed to
take proceedings to recover compensation.
The workman answered that he did not think
his present illness was due to the accident in
January, and that he did not propose to take
proceedings against his employers. In the
form there was a note that " In the event of
a member through lack of means or other
causes neglecting to enforce his claim, the
society, if of opinion there is a good claim,
will take proceedings on his behalf." In
November, 1913, the approved society brought
proceedings for compensation in the work-
man's name and satisfied the County Court
Judge that the accident was the cause of the
workman's Injury : — Held, that the workman
had not unreasonably refused or neglected
to take proceedings for compensation within
the meaning of the National Insurance Act,
1911, s. 11, sub-s. 2, and therefore that it was
not competent to the approved society to
maintain the proceedings for compensation
in the workman's name. lb.
Accident — Possible Claim to Compensa-
tion— Insured Workman — Whether Proceed-
ings by Workman or Approved Society —
Issue of Fact." — An insured workman desiring
to make a claim against his employer under
the Workmen's Compensation Act, 1906,
may be helped by his approved society. Allen
V. Francis, 83 L. J. K.B. 1814; [1914]
3 K.B. 1065; [1914] W.C. & I. Eep. 599;
112 L. T. 62; .58 S. J. 753; 30 T. L. R. 695
— C.A.
On September 5, 1913, a workman met with
an accident and applied for sickness benefit to
his approved society. The society thought
the workman to be entitled to recover com-
pensation from his employer under the
Workmen's Compensation Act, 1906, and on
January 31, 1914, their solicitor wrote to the
employer and threatened proceedings. The
employer denied liability, and thereupon the
society instructed their local solicitors to
investigate the case. These solicitors wrote
to the employer on February 11, 1914, that
they were instructed to act for the workman,
and the workman was in fact informed by the
society that, if he wished, these solicitors
would act for him free of charge in taking
proceedings for compensation. On March 26,
1914, the workman signed a retainer of the
solicitors, and on March 31. 1914, arbitration
proceedings were commenced in his name.
Before the County Court Judge the point was
taken that the proceedings were in fact
brought by the society in the workman's name
and were not maintainable, as the workman
had not unreasonably refused or neglected to
take proceedings within the meaning of the
National Insurance Act. 1911, s. 11. sub-s. 2.
The County Court Judge then asked counsel
for the applicant for whom it was that he
actually appeared, and on his refusal to
answer the question except by producing the
retainer, dismissed the application with
costs : — Held, that the case must go back to
be heard. The County Court Judge ought to
have heard the evidence and fully ascertained
the facts, and ought only to have dismissed
the application if he then came to the con-
clusion that the application was really being
brought by the society. lb.
Approved Society and Trade Union — No
Refusal on Part of Workman to take Pro-
ceedings — Reasonable Inference that Work-
man Insured Member of Approved Society —
Surprise.] — A workman having met with an
accident, two letters, dated April 23, 1914,
and May 2, 1914, were written on behalf of
an approved society, stating that it was
purposing to take proceedings for the work-
man against the employer to obtain com-
pensation under the Workmen's Compensation
Act, 1906. Proceedings were then brought,
and at the hearing the secretary of the local
branch of the approved society, who was called
to give expert evidence, said, in answer to
questions put in cross-examination, that his
society was an approved society and had taken
these proceedings in the name of the work-
man. He also said that the workman had
not refused to take proceedings, but, though
anxious to do so, had not the necessary money.
The County Court Judge thereupon dismissed
the application on the ground that under the
National Insurance Act, 1911, s. 11, sub-s. 2,
an approved society was not entitled to bring
proceedings in a workman's name unless he
had unreasonably neglected or refused to take
them himself. On appeal it was alleged on
the workman's behalf that he was not an
insured member of the approved society, but
was merely a member of it as a trade union,
and it was contended that in these circum-
stances the National Insurance Act, 1911, s. 11,
sub-s. 2, had no application, and that the pro-
ceedings were maintainable : — Held, that, on
the evidence as it stood, the County Court
Judge was entitled to draw the inference that
the workman was insured in the society under
the National Insurance Act, 1911, and that,
as no case of surprise had been made, the
County Court Judge's decision must stand.
Burnham v. Hardy, 84 L. J. K.B. 714;
[1915] W.C. & I. *Eep. 146; 112 L. T. 837
—C.A.
IV. REGULATIONS FOR ADMINISTRA-
TION OF NATIONAL INSURANCE ACT.
Provisional Regulations — Validity.] — The
National Health Insurance (Collection of
Contributions) Regulations, 1912, are valid,
notwithstanding that regulations were not at
the same time made for the provision of
medical and other benefits under the Act. The
Regulations are not rendered invalid by reason
of the fact that they are called " Provisional
Regulations." Hurlock v. Shinn, 82 L. J.
K.B. 391; [1913] 1 K.B. 290; [1913] W.C.
& I. Rep. 277; 108 L. T. 254; 77 J. P. 97;
11 L. G. R. 367 ; 23 Cox C.C. 288 ; 29 T. L. R.
133— D.
By section 83, sub-section 1 of the Act of
1911, a joint committee of the several bodies of
Commissioners is to be constituted in accordance
with regulations to be made by the Treasury ;
and by sub-section 2 the joint committee
709
INSURANCE.
710
" shall exercise and perform such powers and i
duties of the several bodies of commissioners i
under this part of this Act, either alone or
jointly with any of those bodies, as may be
provided by such regulations." Under the
powers conferred upon them by this section,
the Treasury made the National Insurance
(Joint Committee) Eegulations, 1912, regula-
tion 5 of which provided that the joint
committee should exercise jointly with the
Commissioners " (a) under sub-section (1.) of
section 4, and sub-section (1.) of section 5 of
the Act, the power of prescribing the intervals
at which contributions payable in respect of
employed contributors and voluntary con-
tributors respectively are to be payable . . .
(c) under section 7 of the Act, the power of
making regulations for matters incidental to
the payment and collection of contributions " :
— Held, that the regulation was not ultra vires
of the Treasury, and that the joint committee
were thereby empowered to join with the Com-
missioners in the making of the regulations.
Ih.
By regulation 6 (1) (a) of the National
Health Insurance (Collection of Contributions)
Regulations, 1912, the time for stamping the
card of a contributor shall be " (a) where
money payment is made by the employer in
respect of any employment — before the money
payment in respect of the period for which
the contribution is payable ..." : — Held,
that although section 4, sub-section 1 of the
Act of 1911 provides for payment at " weekly
or other prescribed intervals," the regulation
was not ultra vires. lb.
Regulations Made by Insurance Commis-
sioners under Statutory Powers — Power of
Court to Review.] — The National Insurance
Act, 1911, by section 65, authorises the
Insurance Commissioners to make regulations
for the purpose of carrying into effect Part I.
of the Act (which deals with National Health
Insurance), and provides that such regulations
shall be laid before both Houses of Parliament
and shall have effect as if enacted in the Act,
unless annulled by His Majesty in Council on
an address presented by either House : — Held
(Lord Johnston dissenting), that regulations
made by the Commissioners, which had not
yet been laid before Parliament, could not be
challenged in a Court of law as being ultra
vires of the Commissioners, provided they
dealt with matters falling within the scope of
Part I. of the Act, but could be set aside only by
means of the Parliamentary procedure provided
by the section. Glasgoio Insurance Committee
V. Scottish Insurance Commissioners. [1915]
S. C. 504; [1915] W.C. k I. Rep. 182— Ct.
of Sess.
Inclusion of Other Trades — Order of Board
of Trade — Ultra Yires — Commissioner
Appointed to Hold Enquiry — Powers of
Commissioner.] — By section 103 of the
National Insurance Act, 1911, " If it appears
to the Board " of Trade " that it is desirable
to extend the provisions of this Part of this
Act, to workmen in any trade other than an
insured trade, . . . the Board may, with the
consent of the Treasury, make, ... a special
order extending this Part of this Act to such
workmen . . . Provided that no such order
shall be made if the person holding the inquiry
in relation to the order reports that the order
should not be made, . . ." : — Held, that a
Commissioner appointed under the Act to hold
an enquiry with regard to a draft Order made
by the Board of Trade has no jurisdiction to
enquire as to whether the proposed Order is
or is not ultra vires, but only as to whether,
upon the facts, it is desirable that it should be
made. Rex v. Hudson, 84 L. J. K.B. 773;
[1915] 1 K.B. 838; [1915] W.C. & I. Rep.
227; 112 L. T. 852— C. A.
The Sixth Schedule contains a list of insured
trades for the purposes of Part H. of the Act,
one of which is " Sawmilling (including
machine woodwork) carried on in connection
with any other insured trade ..." The
Board of Trade made an Order extending the
provisions of Part II. of the Act to workmen
in the trade of " Sawmilling, including
machine woodwork, whether carried on in con-
nection with any other insured trade or not " :
— Held, that the Order was not ultra vires,
lb.
Decision of the Divisional Court (84 L. J.
K.B. 194; [1915] 1 K.B. 133) afdrmed. lb.
V. POWERS OF INSURANCE
COMMISSIONERS.
Whether Regulations made by Commis-
sioners are Open to Review by Court.] —
See Glasgow Insurance Committee v. Scottish
Insurance Commissioners, ante, col. 709.
Determination by Commissioners of Rates
of Contribution.] — The Court dismissed an
action for the setting aside of a determination
by the Insurance Commissioners under
section 66, sub-section 1 (c) of the National
Insurance Act, 1911. holding that in the
absence of averments that they had acted ultra
vires the Court had no jurisdiction to inter-
fere with their decision. Don Bros.. Buist d
Co. V. Scottish Insurance Commissioners,
[1918] S. C. 607; [1913] W.C. & I. Rep. 2.59
— Ct. of Sess.
VI. UNEMPLOYMENT INSURANCE.
Termination of Employment— Duty of Em-
ployer to Return Card and Book — Return
through Post— Failure to Obtain Fresh Em-
ployment by Reason of Non-return — Damages
— Remoteness.! — It is provided by regulations
made under the National Insurance Act, 1911,
that an employer must return health insurance
cards and unemployment insurance books
deposited with him to the workman on the
termination of the employment. An employer
unable to find the workman at the address he
had given, which he had quitted, posted his
health insurance card and unemployment in-
surance book, addressed to him at the above
address. Although the workman had given
due notice to the post-office that letters so
addressed should be forwarded to him at
another address, the card and book were lost
in the post. By reason of not being able to
produce them, the workman was unable to
obtain other employment, and preferred a
711
INSURANCE.
712
claim for damages against the employer under
the Employers and Workmen Act, 1875 : — ■
Held, that the claim could not succeed on the
ground (by Eidley, J., and Pickford, J.;
Avory, J., dubitante) that the above damages
were too remote; and {per Avory, J.) on the
ground that the employer had returned the
cards to the workman because, the post-office
under the Act being the agents of the owners
of the cards, the Insurance Commissioners,
the cards had been entrusted to their agent to
be given to the workman. Qucere, whether
such action would lie at all. Price v. Webb,
82 L. J. K.B. 720; [1913] 2 K.B. 367; [1913]
W.C. & I. Rep. 368 ; 108 L. T. 1024 ; 77 J .P.
338; 11 L. G. E. 602; 29 T. L. E. 478— D.
Married Woman — Temporary Unemploy-
ment after Marriage — " Person whose normal
occupation is employment " — Right to
Benefits.] — By section 44, sub-section 1 of the
National Insurance Act, 1911, " Where a
woman who has before marriage been an
insured person marries, she shall be suspended
from receiving the ordinary benefits under "
Part I. of the Act " until the death of her
husband . . . Provided that, where a woman
who has been employed within the meaning
of this Part of this Act before marriage, proves
that she continues to be so employed after
marriage, she shall not be so suspended so
long as she continues to be so employed, ..."
By section 79 : "A person whose normal
occupation is employment within the meaning
of this Part of this Act shall, for the purpose
of reckoning the number and rate of contri-
butions, be deemed to continue to be an
emplo^'ed contributor notwithstanding that he
is temporarily unemployed, ..." The appel-
lant, an insured person within the meaning
of the Act, was a member of the respondent
society. In August, 1913, she was married,
and gave up her employment. She was then
pregnant, and was physically incapable, until
after December 6, 1913, when her child was
born, of following her employment ; but at
the time of her marriage she bona fide intended
to return to it, and she continued to be a
person whose normal occupation was employ-
ment within the meaning of the Act. The
society having refused to allow her sickness
and maternity benefits,— HeW, that section 79
was applicable to the appellant, and that,
notwithstanding her temporary unemployment
after her marriage, she was entitled to claim
sickness and maternity benefits. Davidson v.
New Taberriade Approved Society, 85 L. J.
K.B. 124; [1915] 3 K.B. 569— Atkin. J.
Presentation of Unemployment Book.] —
See Nunnery Colliery Co. v. Stanley, post,
col. 713.
Vn. OFFENCES.
Non-payment of Contributions by Em-
ployer—Proceedings before Court of Summary
Jurisdiction— Separate Summonses for Each
Week's Non-payment — Combined Order for
Payment of Fine and Unpaid Contribution.]
The provisions of the Summary Jurisdiction
Acts are applicable to an information under
section 69, sub-section 2 of the National Insur-
ance Act, 1911, charging an employer with
having failed to pay a contribution which he
was liable to pay in respect of an employed
contributor, and the magistrate has power to
make a combined order for the payment of a
fine and of the amount of the contribution.
Hurlock V. Shinn; Rex v. Bag g allay ; Morris
V. Ashton ; Rex v. Hedderwick, 82 L. J. K.B.
391; [1913] 1 K.B. 290; [1913] W.C.
& I. Eep. 277; 108 L. T. 254; 77 J. P. 97;
11 L. G. E. 367 ; 23 Cox C.C. 288 ; 29 T. L. E.
133— D.
Under section 69, sub-section 2 of the Act of
1911, each failure by an employer to pay a
weekly contribution is a separate offence, and
separate summonses may be taken out against
him in respect of each failure to pay. lb.
Employment — Determination of Question —
No Decision by Commissioners — Jurisdiction
of Magistrate.] — The provision in section 66,
sub-section 1 of the National Insurance Act,
1911, that " If any question arises — (a) as to
whether any employment or any class of
employment is or will be employment within
the meaning of this Part of this Act . . . the
question shall be determined by the Insurance
Commissioners," does not oust the jurisdiction
of a magistrate, where the Commissioners
have not made any such determination, to
decide, on a summons against an employer
under section 69, sub-section 2 of the Act for
failure to pay contributions in respect of a
person alleged to be an employed contributor,
whether such person is an employed contri-
butor within the Act or not. Rex v. Wilber-
force, 32 T. L. E. 163— D.
Sufficiency of Evidence — Ordinary and
Emergency Cards.] — An emoloyer, charged
with failure to pay the contributions due by
him under the National Insurance Act, 1911,
in respect of two servants in his employment,
was convicted upon an admission in the
witness-box, by each of the servants, that he
did not get an insurance card — that is, an
ordinary card — stamped by the accused while
in his service, and upon proof that the accused
and the two servants had refused to give any
information when interrogated by the repre-
sentatives of the National Insurance Commis-
sioners : — Held, that the charge had not been
proved as, even assuming that the evidence
was sufficient to establish that no ordinary
cards had been stamped the prosecutor had
failed to prove that the accused had not
adopted the alternative course of stamping
" emergency " cards. Kinnear V. Brander,
[1914] S. C. (J.) 141— Ct. of Just.
Observations on the evidence required to
prove a charge of failure to pay contributions
under the National Insurance Act, 1911, and,
in particular, upon the question whether the
evidence of one servant that the employer had
not stamped a card for him was evidence sup-
porting a similar charge made against the
accused with regard to another servant. 76.
Card Handed to Head Gardener by Gar-
dener's Labourer — No Direct Dealings with
Employer — Failure to Affix Stamps to Card —
Liability of Employer. — A gardener's
labourer was employed by the respondent and
713
INSURANCE.
714
was paid wages weekly. The labourer handed
his National Health Insurance card to the head
gardener and had no direct dealings with the
respondent. No stamps were placed on the
card in respect of certain weeks : — Held, that
the respondent had committed a criminal
offence, inasmuch as though the duty of stamp-
ing the cards could be lawfully delegated, yet
if the duty was not performed the employer
was responsible. Godman v. Crofton (No. 1),
110 L. T. 387 : 78 J. P. 133 : 12 L. G. E. 330;
24 Cox C.C. 90; 30 T. L. R. 193— D.
Presentation of Unemployment Book —
Whether Condition Precedent— Fitter.^— The
appellants engaged one S. as a fitter to attend
to and repair plant and machinery in an
engineering workshop of their colliery pre-
mises. On a summons against the appellants
under section 101 of the National Insurance
Act, 1911, for non-payment of unemployment
contributions in respect of S., the magistrate
held that the presentation of an insurance
book by the workman to the employer was
not a condition precedent to the obligation of
the employer to get stamps and endeavour
to use them, and that as S. was employed
as above stated the appellants must be con-
victed. One of the insured trades under the
Act is that of mechanical engineering : —
Held, that on non-presentation of the unem-
ployment book to the employer by the work-
man it became the duty of the employer to
obtain an emergency book, and that there
was evidence that S. was employed in the
insured trade of mechanical engineering, and
therefore the magistrate's decision must be
affirmed. Nunnery Colliery Co. v. Stanley.
111 L. T. 843; 78' J. P. 422; 30 T. L. R. 549
— D.
Bricklayer's Labourer — Employment as
General Colliery Labourer — Employment in
Construction of Buildings.l — The respondent
engaged one ^\'., who was a bricklayer's
labourer, as a general colliery labourer, and
employed him to break up material for concrete
and to make concrete, which was used in the
alteration of a fan-house at a colliery. On a
summons by the appellant against the respon-
dent under section 101 of the National
Insurance Act, 1911, for failing to pay unem-
ployment contributions in respect of W., it
was contended for the appellant that W. was
employed in the construction, maintenance, or
repair of colliery buildings, and that therefore
he came within the list of insured trades set
out in the Sixth Schedule to the Act and in a
decision of the umpire. The Justices dis-
missed the summons on the ground that W.
was a general labourer and not a bricklayer's
labourer : — Held, that W. was employed in
an insured trade, and that therefore the
respondent ought to have been convicted.
Opinion reserved on the question whether, in
proceeding under section 101, in which a dis-
pute arises as to whether the employment is
in an insured trade, the Justices are bound,
if there has been no previous decision by the
umpire, to refer the matter to him. Robinson
V. Morewood. Ill L. T. 840; 78 J. P. 445;
30 T. L. R. 647— D.
C. ACCIDENT.
See also Vol. VIII. SI, 1669.
Exception in Policy — "Anything inhaled"
— Construction — Death of Assured from Gas
Fumes — Liability of Insurance Company." —
By a personal accident and sickness policy
the assured was insured against bodily injury
by " violent accidental external and visible
means," with an exception that the policy
was not to insure (inter alia) against death or
disablement by accident directly or indirectly
caused by " anything swallowed, adminis-
tered, or inhaled." The assured was found
dead in a room with the unlighted gas turned
on, and the cause of the death was certified
as suffocation from gas poisoning : — Held,
that the words " anything . . . inhaled "
were clear and unambiguous in their mean-
ing, and could not be construed as having the
restricted meaning " anything voluntarily
inhaled." The death of the assured was not
therefore due to a risk covered by the policy.
United London and Scottish Insurance Co.,
In re; Brown's Claim, 84 L. J. Oh. 620;
[1915] 2 Ch. 167 ; [1915] W.C. & I. Rep. 485 ;
113 L. T. 397 ; 59 S. J. 529; 31 T. L. R. 419
— C.A.
Third-party Policy — Limit of Liability for
any one Accident or Occurrence — Action
against Assured — Defence Conducted by
Insurance Company — Liability for Costs.] — ■
By a policy of insurance the defendants
insured the assured in respect of accidents
caused by his employees when in charge of
his horse-drawn vehicles. The total liability
of the defendants was limited to 300L for all
claims for compensation and costs, charges,
and expenses paid or payable in respect of or
arising out of any accident or occurrence, and
the defendants were to be entitled, in the
name and on behalf of the assured, to take
over and have the absolute control of all nego-
tiations and proceedings which might arise in
respect of any accident or claim. There was
a further provision that the defendants might
pav the maximum sum to the assured in the
case of any one accident or occurrence, and
thereupon their liability in respect of that
accident or occurrence should cease ; but if
the assured desired the defendants to continue
the defence he should pay and make good all
costs and expenses incurred thereby. Two
persons who had been injured by an accident
caused by a cart belonging to the assured
brought actions against him claiming damages.
The assured gave notice thereof to the defen-
dants, and they defended the actions, the
assured not being consulted nor having any-
thing to say as to the advisability of defending
the actions. The actions resulted in verdicts
against the assured for 200/. and 175/. respec-
tively. The costs in these actions recover-
able by the two plaintiffs against the assured
amounted to 218/. ; and as he did not pay
those costs an execution was levied on his
goods, and to get rid of this he had to pay the
218/.. which he now claimed to recover from
the defendants -. — Held, that although there
were two accidents there was only one
" occurrence " within the meaning of the
policy, and therefore that the defendants'
715
INSURANCE.
716
limit of 300/. applied ; but that the defendants
having denied the actions in the name of the
assured without his consent they incurred a
common law liability for the costs, and
were therefore liable to repay the 218L which
the assured had been compelled to pay. Allen
V. London Guarantee and Accident Co.,
28 T. L. R. 254— Phillimore, J.
Policy against Accidents to Employees —
Proviso for Keeping Wages Book — Condition
Precedent.] — A policy of msui-auce taken out
by a currier and small farmer against liability
for accidents under the Workmen's Compensa-
tion Act, 1906, contained a proviso that the
observance of the conditions of the policy
should be "a condition precedent to any
liability of the Society under this policy." A
number of conditions were stated, including
the following : " The first premium and all
renewal premiums that may be accepted are
to be regulated by the amount of wages and
salaries and other earnings paid to employees
by the insured during such period of insur-
ance. The name of every employee and the
amount of wages, salary, and other earnings
paid to him shall be recorded in a proper
wages book. The insured shall at all times
allow the society to inspect such books and
shall supply the society with a correct account
of all such wages, salaries, and other earn-
ings paid during any period of insurance,
within one month from the e.xpiry of such
period of insurance, and if the total amount
so paid shall differ from the amount on which
premium has been paid the difference in
premiums shall be met by a further propor-
tionate payment to the society or by a refund
by the society, as the case may be." The
insured employed one labourer only, who met
with an accident entitling him to compensa-
tion under the Act of 1906. He kept no
wages book or record of wages paid by him.
The society disputed his right to claim under
the policy on account of the omission to keep
a wages book : — Held (Fletcher Moulton, L.J.,
dissenting), that the policy in any case of
ambiguity ought to be construed against the
society and in favour of the claimant, and
that as a matter of construction the condition
as to keeping a wages book was not a condi-
tion precedent the omission to observe which
debarred the claimant from his right to
indemnity under the policy. Bradley and
Essex and Suffolk Accident Indemnity
Society, In re, 81 L. J. K.B. 523; [1912]
1 K.B. 415; 105 L. T. 919; 28 T. L. E. 175;
[1912] W.C. Rep. 6.
Policy of Indemnity — Condition against
Agent of Assured making Admission of
Liability — Admission of Negligence and
Responsibility by Agent not Authorised by
Assured — No Breach of Condition.] — An admis-
sion of liability, made by a driver of a traction
engine after a collision caused by his negli-
gence, is not a breach of a condition contained
in a policy of insurance made with his employer
that the assured shall not by his agent
make any admission of liability, unless the
admission is authorised by the employer.
Under a policy of insurance the defendants
were to be indemnified against damage for
which they might be liable by reason of a
collision with their traction engine, provided
that the assured should not, by himself or his
agent, make any admission of liability to any
person in respect of whom indemnity might
be claimed under the policy. After a collision
between the traction engine and the plaintiff's
motor car, caused by the negligence of the
defendants' driver, the plaintiff wrote out. and
the driver (who was illiterate) signed with a
cross, a document in which the driver admitted
that he was negligent and responsible for the
collision. In an action for damages brought
by the plaintiff against the defendants, and
which was settled by the defendants paying
him a reasonable sum therefor, the defendants
claimed from the insurers, as third parties,
indemnity for such payment, and the insurers
repudiated liability on the ground that the
driver's admission of liability was a breach of
the proviso in the policy : — Held, that as the
driver had not the defendants' authority to
make the admission of liability, and the docu-
ment signed by him was not part of the res
gestce and therefore was not admissible in
evidence against the defendants, the insurers
must indemnify the defendants in respect of
the moneys paid to the plaintiff. Semhie, that
an agent's admission of liability, if part of the
res gestce, would not be a breach of such
proviso, unless expressly authorised by the
principal. Tustin v. Arnold, 84 L. J. K.B.
2214 ; 113 L. T. 95 ; [1915] W.C. & I. Rep.
560; 31 T. L. R. 368— Bailhache, J.
D. FIRE.
I. CONTRACT.
See also Vol. VIII. 90, 1676.
Marine or Fire — Ship — Insurance against
"risk of fire only, including general average
and salvage charges arising therefrom " —
Insurance Company — Winding-up Order —
Subsequent Total Loss by Fire — Right of
Assured.] — A policy issued by an insurance
company insured a steamer while on the
Great Lakes of America " against the risk
of fire only, including general average and
salvage charges arising therefrom." The ship
was entirely destroyed by fire a few days after
a winding-up order had been made against
the insurance company : — Held, that the policy
was a fire policy within the Assurance Com-
panies Act, 1909, and that the assured could
only prove therefore for the unexpired portion
of the premium in accordance with section 17
and Schedule 6 (B) of that Act. United
London and Scottish Insurance Co., In re;
Newport Navigation Co.'s Claim, 84 L. J. Ch.
544; [1915] 2 Ch. 12; 20 Com. Cas. 300;
113 L. T. 400; 59 S. J. 529; 31 T. L. R. 424—
C.A.
Decision of Astbury, J. (31 T. L. R. 261),
affirmed. 7b.
Non-disclosure — Refusal by Another Com-
pany to Continue Insurance.] — The appellant
was insured against fire up to August, 1910,
with the L. Co. for 2,000L Desiring to be
insured for a further sum, negotiations took
717
INSURANCE.
71 ff-
place with the respondent company, who on
August 15, 1910, agreed to cover the appellant
for 1,600L for thirty days, and if the insurance
was not taken for a longer period the appellant
was to pay a proportionate part of the
premium. On September 21, 1910, the
respondents wrote to the appellant that they
would insure him for 3,6001. from Michaelmas,
1910, to Michaelmas, 1911, at a premium of
S6l. 16s., and would take the risk from
August 15 to Michaelmas on the 1,600Z. at a
premium of 11. 8s. At the foot of this docu-
ment was the following note : " No insurance
is in force until the premium is paid and a
printed receipt issued from the office," and
across it were the words " Held covered." On
September 27, 1910, the appellant knew that
the L. Co. had refused to continue his insur-
ance. On September 28 the appellant paid the
premium to the respondents, who issued their
policy for 3,6001., but he did not inform them
of the refusal by the L. Co. to continue the
insurance. The appellant having claimed for
a loss by fire which occurred on September 28,
1911, — Held, that the document sent by the
respondents to the appellant on September 21,
1910, was not a contract to insure for 3,600Z.,
but was an offer to insure and a statement
that the appellant was covered for 1,600Z. ;
that the insurance was not concluded till
September 28, 1910, when the premium was
paid ; that it was material to the respondents
to know that the L. Co. had refused to con-
tinue the appellant's insurance; that as the
fact of that refusal came to the appellant's
knowledge before the contract was concluded
it ought to have been disclosed by him to the
respondents ; and that as it had not been dis-
closed the respondents were not liable on the
policy. Yager and Guardian Assurance Co.,
In re, 108 L. T. 38; 29 T. L. R. 53— D.
Misstatement — Correction to Agent of Com-
pany— Duty of Agent — Previous Insurance —
PreYious Refusal.] — Where a person in
making a proposal to an insurance company
for an insurance against fire makes a bona fide
mistake in his answers to the questions on the
proposal form, but before the issue of a cover
note draws the attention of the agent of the
company to the mistake and corrects it, it is
the duty of the agent to convey to the com-
pany the correct answer, and if he fails to do
so the company are not entitled to refuse to
pay a claim under the cover note on the ground
that there was a misstatement in the answers
to the questions on the proposal form. A
question on a fire insurance proposal form as
to whether the proposer is or has been
" insured in this or any other office " does not
include all property ever occupied by the pro-
poser, but only refers to the particular premises
proposed to be insured, unless other premises
are distinctly referred to. The question
whether any other office has declined to
" accept " or " renew " the proposer's insur-
ance has no reference to a refusal to transfer
to the proposer a policy issued to another
person. Golding v. Royal London Auxiliary
Insurance Co., 30 T. Ti. R. 350— Bailhache, J.
Damage Caused by Fire and by Water in
Extinguishing Fire.] — A fire having occurred
in the appellant's cotton mill, which was
insured with the respondent company, the
machinery was seriously damaged, not only by
the fire, but by the effect of the water that
had been used to extinguish the fire, the injury
due to this latter cause being progressive —
that is, it was seriously increased by the
length of time during which the water was
allowed to lie on the machinery. Immediately
after the fire the respondents took possession
of the mill, under powers reserved to them by
the policy, and they retained possession for
a considerable time for salvage purposes.
Possession was ultimately given back to the
appellant, who then put forward his claim
under the policy : — Held, that the loss due to
fire and water under such a policy was to be
determined, not at the moment the fire was
extinguished, but when the respondents gave
up possession to the appellant after exercising
the powers given to them by the policy for
the purpose of enabling them to minimise the
damage. Ahmedbhoy Habbibhoy v. Bombay
Fire and Marine Insurance Co., L. R.
40 Ind. App. 10 ; 107 L. T. 668 ; 29 T. L. R. 96
— P.C.
Fire Policy — Arbitration Clause — Charge of
Fraud — Repudiation of Policy by Insurers —
Forfeit of all Benefit under it.] — The appel-
lant insured his stock-in-trade with the
respondent company against damage by fire.
The policy contained a condition making it a
condition precedent to any right of action on
the policy that the amount of the loss should
be first determined by arbitration. It also
contained a condition that if a claim was in
any respect fraudulent, or if the loss was
occasioned by the wilful act of the insured,
all benefit under the policy should be forfeited.
The goods insured were destroyed by fire, and
the appellant made a claim on the respon-
dents. The respondents rejected the claim,
and charged the appellant with fraud and
arson, but these issues were found against
them by a jury : — Held, that as the
respondents had repudiated the policy, and
had contended that all benefit under it was
forfeited, they could not set up the arbitration
clause as a bar to an action against them on
the policy. Scott v. Avery (25 L. J. Ex. 308;
5 H.L. C. 811) distinguished. Jureidini v.
National British and Irish Millers Insurance
Co., 84 L. J. K.B. 640: [1915] A.C. 499;
[1915] W.C. & I. Rep. 239; 112 L. T. 531;
59 S. J. 205; 31 T. L R. 132— H.L. (E.)
Consequential Loss — Assessment of Loss —
Arbitration.] — See Recher d Co. v. North
British and Mercantile Insurance Co., ante,
col. 57.
II. CONDITIONS.
See also Vol. VIII. 96. 1678.
"Gasoline — stored or kept."] — A condition
in a policy of fire insurance provided that the
company should not be liable for loss or
damage " occurring while . . . gasoline . . .
is . . . stored or kept in the building insured."
A fire broke out from a small quantity of
gasoline remaining in a cooking stove which
719
INSUEANCE.
720
was used on an emergency for a particular
purpose : — Held, that there was no breach of
the condition, as the gasoline was not within
the meaning of the condition " stored or kept
in the building," and that the respondents
were liable on the policy. Thompson v. Equity
Fire Insurance Co., 80 L. J. P.O. 13; [1910]
A.C. 592 ; 103 L. T. 153 ; 26 T. L. E. 616—
P.C.
Provision that " other policies should be
declared and mentioned and that insured
should not transfer his interest in the pro-
perty."]—A provision in a policy of insurance
against damage by fire that the existence
of further policies should be declared to
the insurers and mentioned in the policy or
indorsed on it is complied with by declaring
and mentioning the fact of the existence of
such further policies without specifying with
whom they were effected. National Protector
Fire Insurance Co. v. Nivert, 82 L. J. P.C. 95 ;
[1913] A.C. 507; [1913] W.C. & I. Rep. 363;
108 L. T. 390; 29 T. L. R. 363— P.C.
A provision that the insured should not
transfer his interest in the property does not
apply to a case in which the insured let the
property for one year and continued himself to
pay the premium on the policy. lb.
Action by Policy-holder — Condition Prece-
dent— Waiver by Course of Conduct.] — It was
a condition of a fire insurance policy that the
loss should not become payable until sixty
days after notice, ascertainment, estimate, and
satisfactory proof of the loss had been received
by the company, and that a magistrate or
notary public should, if the company required
it, certify that he had examined the circum-
stances and believed the insured had honestly
sustained the loss as appraised. The plaintiffs,
having suffered losses by fire, served notice of
a claim on the insurance company and
appointed an adjuster with the assent of the
company to ascertain the loss. A full report
of the adjustment having been sent to the
company, a long correspondence ensued, and
ultimately the company asked to be supplied
with a certificate of a magistrate or notary
public, and, further, they said that if that
information, in their opinion, was insufficient,
they would require the loss to be ascertained
by disinterested appraisers. In an action
brought by tlie plaintiffs to recover their losses
as ascertained by the adjuster : — Held, that
the defendant company had by their conduct
waived their right to insist on the above
stipulations in the policy as a condition
precedent to the plaintiffs' right of action.
Toronto Railway v. National British and Irish
Millers Insurance Co., Ill L. T. 555;
20 Com. Cas. 1— C.A.
III. REBUILDING PREMISES.
See also Vol. VIII. 110, 1680.
Mortgage — Premises Destroyed by Fire —
Right to have Insurance Money Applied in
Rebuilding. 1— Section 83 of the Fires Pre-
vention (Metropolis) Act, 1774, which
authorises and requires insurance offices, upon
the request of any person or persons interested
in or entitled to any house which may be burnt
down, to cause the insurance money to be laid
out and expended towards rebuilding, re-
instating, or repairing such house, is, not-
withstanding the doubt expressed by Lord
Watson in Westminster Fire Office v. Glasgow
Provident Investment Society (13 App. Cas.
699, 716), of general as opposed to local appli-
cation. Gorely, Ex parte; Barker, in re
(34 L. J. Bk. 1; 4 De G. J. & S. 477),
followed. Sinnott v. Bowden, 81 L. J. Ch.
832; [1912] 2 Ch. 414; [1913] W.C. & I. Rep.
464; 107 L. T. 609; 28 T. L. R. 594—
Parker, J.
The same section, notwithstanding the
doubt expressed by Lord Selborne in West-
minster Fire Office v. Glasgow Provident
Investment Society (supra) applies as between
mortgagor and mortgagee, and a mortgagee
may, therefore, under the section, require the
money to be spent in rebuilding, &c. 76.
" Insurance effected under the mortgage
deed."] — Where a mortgagor covenants in a
mortgage deed to insure and keep insured the
mortgaged property, and such property is
already prior to the date of the mortgage
insured by a yearly policy, and subsequent to
the mortgage the mortgagor renews the policy
in the ordinary course at the date when
renewal becomes due, the policy is "an
insurance effected under the mortgage deed "
within the meaning of section 23, sub-section 3
of the Conveyancing and Law of Property Act,
1881. lb.
Garnishee Order Nisi.] — A mortgagee's
statutory rights are not displaced by a
garnishee order nisi. On this point Evans v.
Rival Granite Quarries Co. (79 L. J. K.B. 970;
[1910] 2 K.B. 979), Cairney v. Back
(75 L. J. K.B. 1014; [1906] 2 K.B. 746), and
Norton v. Yates (75 L. J. K.B. 252; [1906]
1 K.B. 112) applied. Ih.
E. GUARANTEE, PLATE GLASS,
BURGLARY, AND OTHER
POLICIES.
I. GUARANTEE.
See also Vol. VIII. 120, 1681.
Fidelity — Policies Covering Loss by Defal-
cations of Employees — Twro Policies — Loss —
Contribution between Insurers.] — The plain-
tiffs, an American insurance company, issued
a policy by which they covenanted to pay an
American bank for any loss or damage occa-
sioned by the dishonesty of any of the
employees according to an amount appended
to each name in a schedule. Among the
employees guaranteed was one K., who was
guaranteed up to 2,500 dollars. The bank
also took out a policy at Lloyd's for 40,000/.,
by which the underwriters were to be liable for
loss caused by the dishonesty of employees,
and also for loss sustained by the loss or
destruction on the owners' premises of bonds,
banknotes, &c., owing to fire or burglary. K.
721
INSUEANCE.
722
made defalcations to the extent of 2,680
dollars, and the bank claimed from the plain-
tiffs the full amount of the insurance —
namely, 2,500 dollars, leaving a balance of 180
dollars. The bank claimed 180 dollars on the
Lloyd's policy, which was paid. The present
action was brought by the plaintiffs against
the defendant, who was one of the under-
writers on the Lloyd's policy, for contribution
in respect of the loss : — Held, first, that the
case was governed by English law ; and
secondly, that the defendant was liable to
pay a proportion of the whole loss of 2,680
dollars in the ratio of 2,680 to 2,500. American
Surety Co. v. Wrightson, 103 L. T. 663;
16 Com. Cas. 37 ; 27 T. L. E. 91— Hamilton, J.
Employee Insured "from issuance" of
Policy.] — The plaintiffs, who carried on
business in various towns, including Paris,
requested the defendants to issue a bond
guaranteeing the plaintiffs against loss through
the dishonesty of L., their Paris manager. On
the application form the plaintiffs, in answer
to the question " From what date is it [the
bond] to be in force and for what amount? "
answered thus : " From issuance, 1,000Z." On
March 7, 1912, the rate of premium was
arranged, and on March 8 the bond was drawn
up and executed at the defendants' London
ofiSce. It recited that in consideration of the
premium paid to the defendants they agreed to
reimburse the plaintiffs for any loss they might
sustain by the larceny or embezzlement of L.
" during the period from March 8, 1912, to
March 7, 1913." The premium had not then
been paid, nor by the terms of the bond was
its payment a condition precedent to liability
upon the bond. The bond was forwarded the
same day to the defendants' French agents,
who on March 9 sent it to the plaintiffs' Paris
office; it was, however, returned to the agents
with a request that they should deliver it at
the plaintiffs' London office, and this was done
on March 18, with a request for a cheque for
the premium. The plaintiffs' London manager
was then absent, and it was finally arranged
that the matter should stand over till his
return. On April 13 L. left his office in Paris,
and by April 18 the plaintiffs were in a state
of suspicion about him, although not sure that
his absence was incapable of a satisfactory
explanation. On that day the plaintiffs'
London manager returned, and on being
informed of the facts paid the premium to the
defendants and obtained the bond from them.
A few days later, the plaintiffs discovered
defalcations by L., and made a claim on the
bond, but the defendants repudiated liability
on the ground that the contract was not com-
plete till April 18, and that there had been
concealment of material facts : — Held (A. T.
Lawrence, J., dissenting), that at the date of
L.'s defalcations the plaintiffs were not
covered. Allis Chalmers Co. v. Fidelity and
Deposit Co. of Maryland, 111 L. T. 327;
30 T. L. R. 445— C. A.
Decision of Phillimore, J. (29 T. L. R. 606),
reversed. Jh.
Liability to Reimburse Assured for Loss
by Larceny or Embezzlement — Meaning of
"embezzlement."]— By a fidelity policy the
defendants undertook to reimburse the assured
in respect of loss sustained by any act pf
larceny or embezzlement upon the part of their
employee : — Held, that the word " embezzle-
ment " in the policy is to be construed in the
same way as it would be construed when used
in an indictment. Debetihams . Lim. v. Excess
Insurance Co., 28 T. Ij. R. 505— Hamilton, J.
Guarantee of Debenture Issue — Re-insur-
ance of Risk — Suretyship — Indemnity —
Liquidation of Insurer — Measure of Liability
of Re-insurer — Whether Amount Proved for
or Dividend Actually Paid in Liquidation.' —
On the i.ssue of del)entures by a firm a contract
in the form of a memorandum at the end of
each debenture was entered into between the
debenture-holders and an insurance society, by
which the society guaranteed to the debenture-
holders, in case the firm should make default,
payment of the principal and interest to
become due imder the debentures, the events
in which the society was to be liable to pay
not being in all respects the same as those in
which the firm was liable. Subsequently, a
contract, also in the form of a memorandum
added to each debenture, was entered into
between the society and an insurance company
which, in consideration of a premium, pro-
vided that the company guaranteed the society
to the extent of two-elevenths of the risk
assured by, and subject to the conditions of,
the within policy of debenture insurance
(meaning the contract first above mentioned),
and also the like proportion of all costs and
expenses incurred by the society, with the
consent of the giiarantors in respect of any
claim under the within policy. The debentures
of the firm became enforceable, and the risk
which the society had guaranteed became a
claim against the society. The society then
went into liquidation, and a proof for the claim
of the debenture-holders, so far as unsatisfied
by the assets of the firm, was admitted : —
Held, that, whether the above contracts were
contracts of insurance or of indemnity, the
company was liable to the liquidators of the
society for two-elevenths of the entire claim
for which the proof of the debenture-holders
had been admitted in the liquidation, and not
merely for two-elevenths of the dividend which
the estate of the society would be able actually
to pay to the debenture-holders. Held, further,
that the above contracts were contracts of
insurance rather than contracts of indemnity
or guarantee. Late Guarantee Trust and
Accident Society, In re {No. 2), 84 L. J. Ch. 1 ;
ri914] 2 Ch. 617 ; 111 L. T. 817 ; 58 S. J. 704 ;
30 T. L. R. 616— C. A.
Dane v. Mortgage Insurance Corporation
(63 L. J. Q.B. 144; [1894] 1 Q.B. 54), Finlay
V. Mexican Investmejit Corporation (66 L. J.
Q.B. 151; [1897] 1 Q.B. 517), and Eddystona
Marine Insurance Co., In re; Western
Insurance Co., ex parte (61 L. J. Ch. 362;
[1892] 2 Ch. 423), applied. Richardson, In re;
St. Thomas's Hospital Governors, ex parte
(80 L. J. K.B. 1232; [1911] 2 K.B. 705),
explained and distinguished. Ih.
Judgment of Neville, J. (83 T;. J. Ch. 25;
[1913] 2 Ch. 604), reversed. Order of War-
rington, J. (49 L. J. N.C. 196; [1914] W. N.
117), discharged. lb.
723
INSUEANCE.
724
Debentures — Liquidation of Guarantee
Society — Re-insurance — Debenture-holder's
Rights of Indemnity — Fiduciary Relation-
ship.] — \Yhere certain assets of a brewery
company were mortgaged to a guarantee
society as trustees for the debenture-holders,
and the guarantee society re-insured the
debentures with other companies, on an
application by the debenture-holders for a
declaration that they were entitled to the
benefit of all the re-insurances, — Held, that
the society were under no fiduciary relation to
the debenture-holders in respect of the money
resulting from the re-insurances, and that it
accordingly formed part of the general assets
of the society. Law Guarantee Trust and
Accident Society, In re; Godson's Claim,
84 L. J. Ch. 510; [1915] 1 Ch. 340; 112 L. T.
537; [1915] H. B. E. 103; 69 S. J. 234—
I^eville, J.
Mortgage Insurance — Condition — Building
Society — Liquidation — Assignment by
Liquidator without Consent of Insurers —
Transfer by Operation of Law.] — A building
society, which was registered under the
Building Societies Acts, lent a sum of money
upon mortgage and insured repayment of the
loan. The policy of insurance contained a
clause providing that the policy should cease
to be in force if the whole or any part of the
interest of the insured in the mortgage debt
or mortgaged property or any part thereof
should pass from the insured otherwise than
by will or operation of law, unless notice in
writing should be given to the insurers, and
the insurance should be declared to be
continued to a successor in interest by a
memorandum made on the policy by them ;
and the expression " the insured " was declared
to include a successor in interest to whom the
insurance should be so declared to be or be
otherwise continued. The building society was
ordered to be wound up by the Court, and the
official receiver, as liquidator, gave notice to
the insurers of his intention to assign the
mortgage together with the policy ; the insurers
claimed the right to refuse their consent : — ■
Held, that, upon the true construction of the
condition referred to, the insurers could not
withhold their consent to an assignment after
receipt of notice thereof ; and further, that the
official receiver being under an obligation to
assign, the policy would pass to the assignee
by operation of law, and that therefore the
consent of the insurers was not required.
Doe d. Goodbehere v. Bevan (3 M. & S. 353)
followed. Birkbeck Permanent Benefit Building
Society v. Licensees' Insurance Corporation
and Guarantee Fund, Lim., 82 L. J. Ch. 386;
[1913] 2 Ch. 34; [1913] W.C. & I. Eep. 566;
108 L. T. 664 ; 57 S. J. 559— Neville, J.
Insurance of Performance of Executory
Contract — Release of Insurers by Failure to
Notify Breaches of Contract.] — A firm of
contractors were employed to lay certain
water pipes, and, as required by their em-
ployers, they obtained from an insurance
company a policy insuring the employers
against loss arising out of failure duly to
complete the work. The policy contained a
clause declaring that it was executed " upon
the following express conditions, which shall
be conditions precedent to the right of the
employer to recover hereunder." The first of
these conditions was : " The surety shall be
notified in writing of any non-performance or
non-observance on the part of the contractors
of any of the stipulations or provisions con-
tained in the said contract, and on their part
to be performed and observed, which may
involve a loss for which the surety is
responsible hereunder." The pipe-laying con-
tract contained stipulations that the work
should be commenced on a specified date, that
a certain length of pipes should be laid each
week, and that the whole work should be
completed within eleven months. The con-
tractors did not commence the work until long
after the stipulated date, and during the
progress of the work they fell more and more
heavily behind the stipulated time-table, but
no notices of these breaches of the provisions
of the contract were sent to the insurance
company. After working for twelve months
only about half the contract was completed.
Shortly afterwards the contractors became
bankrupt, and the employers took over the
work and completed it themselves at consider-
able loss. In an action by them against the
insurance company for recovery of the sum
so lost, — Held (The Lord President dissenting),
that as the delays by the contractors were non-
observance of stipulations of the contract
which might reasonably involve the insurance
company in loss, the employers were bound to
give notice of them, and that, as they had
failed to do so, they were in breach of a
condition precedent to their right of recovery
under the insurance policy. Held, therefore,
that the defenders were not liable. Clydebank
and District Water Trustees v. Fidelity and
Deposit Co. of Maryland, [1915] S. C. 362—
Ct. of Sess.
Workmen's Compensation — Employee of
Company — Company in Liquidation.] — An
employee of a colliery company, which had
taken out a policy indemnifying it against all
sums payable under the Workmen's Compen-
sation Act, 1906, met with an accident
permanently injuring him in a mine on August
28, 1910. On December 20, 1910, the assur-
ance company went into liquidation. The
colliery company went into liquidation in
February, 1912. The employee claimed the
value of an annuity of 46L per annum, 979Z.
The liquidator admitted the claim as to
Ci97l. lis. Id., deducting 54Z. paid by the
colliery company before it went into liquida-
tion from 7511. lis. Id. the value of the
annuity after deducting 25 per cent, in accord-
ance with the Assurance Companies Act, 1909
(9 Edw. 7, c. 49), s. 17, which enacts that
where an assurance company is being wound
up the value of the policy shall be estimated
as provided by the Sixth Schedule, and in
the Sixth Schedule (D) as respects employers'
liability policies provides for the purchase of
an annuity equal to 75 per cent, of the annual
value of the weekly payment. The question
was whether the workman was entitled to the
725
IXSUEANCE.
726
full value of the annuity as from the date when
the colliery company went into liquidation, or
whether he was only entitled to 75 per cent,
from the date the assurance company went
into liquidation : — Held, that the liability of
the assurance company must be ascertained at
the date it went into liquidation, and that the
deduction of 25 per cent, was right, but that
the deduction of the 54?. was wrong. Law
Car and General Insurance Corporation, In re,
110 L. T. 27; 58 S. J. 251— Astbury, J.
Policy against Claims — Condition —
Assured to Give Notice of Claims — Request
for Arbitration.] — A policy of insurance
against claims arising under the Workmen's
Compensation Act provided that the assured
should forward to the insurance company every
notice of claim. A notice of claim accom-
panied by a request for arbitration was sent
to the assured, who forwarded the notice of
claim, but not the request for arbitration.
The company resisted liability on the ground
that the assured had not forwarded every
notice of claim : — Held, that the request for
arbitration was only a step in the proceedings
to obtain an award and was not a notice of
claim. Wilkinson and Car and General
Insurance Corporation, In re, 110 L. T. 468;
58 S. J. 233— C.A.
11. PLATE GLASS.
Perils — " Civil commotion or rioting" —
Windows Broken by Suffragists — Payment
under Former Policy — Estoppel.] — The plain-
tiffs, a plate-glass insurance company, took
out a policy of re-insurance with the defen-
dants, who were underwriters at Lloyd's, by
which the defendants bound themselves to
make good to the plaintiffs such loss as the
plaintiffs might sustain from damage to plate
glass " caused directly by or arising from civil
commotion or rioting." In the course of an
agitation for obtaining the political franchise
for women known as the militant suffragette
movement some of the windows insured by
the plaintiffs were broken, and the plaintiffs
having paid for the damage to these windows
brought an action against the defendants on
the re-insurance policy. It was proved in
evidence that some hundreds of women
appeared simultaneously in various streets in
London armed with hammers, and broke a
large number of plate-glass windows, including
those in question ; that in each case a woman
going alone and without assistance broke one
or more windows ; that a crowd then collected
and looked at the window without taking any
further part in the proceedings ; that the
woman was arrested without resistance or
attempt at rescue, and was convicted only of
doing malicious damage ; and it was admitted
that there migiit have been co-operation among
the women in the sense that they had all
agreed to break the windows at the same
time. It was further proved that under a
previous re-insurance policy in the same terms
the defendants had paid the plaintiffs in
reanect of a loss similarly caused : — Held, first,
that there was no evidence to go to the jury
that the windows had been brpken by " civil
commotion " or " rioting " within the mean-
ing of the policy; secondly, that proof of the
payment under the previous policy was not
evidence to shew that the defendants had
intended that the expression "civil commotion"
in the re-insurance policy sued on had a
meaning sufficiently wide to include such a
disturbance as that in question, or to estop
the defendants from denying that they had
intended that it should have such a meaning.
London and Manchester Plate-Glass Insurance
Co. V. Heath, 82 L. J. K.B. 1183; [1913]
3 K.B. 411; [1913] W.C. & I. Eep. 696;
108 L. T. 1009; 29 T. L. R. 581— C.A.
Definition of " civil commotion " by Lord
Mansfield in Lajtgdale v. Mason (Park on
Marine Insurance (7th ed.), p. 657; (8th ed,),
p. 965) adopted. 76.
Decision of Bucknill, J. (29 T. L. R. 103),
affirmed. lb.
III. BURGLARY.
See also Vol. VIII. 124, 1683.
Exception — Theft by Member of Assured's
Business Staff — Accessory before the Fact —
Principal in the Second Degree.] — The plain-
tiffs effected a Lloyd's burglary insurance
policy with the defendants, by which the
plaintiffs were insured against loss by theft
or robbery or burglary of the property therein
specified. There was a proviso that there
should be no claim on the policy for loss by
theft by members of the assured's business
staff. A porter in the plaintiff's employ,
having, in pursuance of a previously concocted
scheme, admitted a member of a gang of
thieves into the premises, a quantity of
jewellery belonging to the plaintiffs was stolen.
The porter took no part in the actual robbery
and was not present at the time, but he after-
wards received a share of the proceeds : — Held,
that the porter was a principal in the second
degree, and not (as Walton, J., had held) an
accessory before the fact to the theft, and that
he was actually guilty of the substantive
crime of theft under section 2 of the Accessories
and Abettors Act, 1861, and that the case
therefore fell within the terms of the proviso,
and the defendants were not liable upon the
policy. Cornwall's Case (2 Str. 881) applied.
Saqui d Lawrence v. Stearns, 80 L. J. K.B.
451; [1911] 1 K.B. 426; 16 Com. Cas. 32—
C.A.
IV. OTHER POLICIES.
See also Vol. VIII. 124, 1684.
Banker's Policy — Construction — "Coin
... in OP upon their own premises . . .
taken out of their possession or control by
any fraudulent means" — Forged Promissory
Notes Discounted for Customer — Money
Realised Subsequently Drawn by Customer's
Cheques.! — Under a policy dated March 16,
1913, a bank insured for twelve months against
loss occasioned to them " by reason of any
. . . currency, coin, or other similar securi-
ties .. . which during the said period of
727
INSUEANCE.
728
twelve months may be in or upon their own
premises, . . . being (while so in or upon such
premises . . .) lost, destroyed, or otherwise
made away with by robbery, theft, fire,
embezzlement, burglary or abstraction, or
taken out of their possession or control by
any fradulent means." A company having
opened an account with the bank, the bank
discounted five promissory notes for the com-
pany, on a representation that they were
drawn by customers of the company in pay-
ment of amounts due to them, and credited
the amount of the notes, less discount, to the
company's current account. The whole amount
was drawn out by the company by cheques
on the account honoured by the bank. The
bank subsequently discovered that the notes
were forgeries and worthless -.—Held, that the
loss so occasioned to the bank was not recover-
able, under the terms of the policy, from the
underwriters. Century Bank of New York v.
Young, 84 L. J. K.B. 385; 112 L. T 484-
20 Com. Cas. 90; 31 T. L. E. 127— C. A.
Decision of Pickford, J. (110 L. T. 261;
19 Com. Cas. 178), affirmed. lb.
Motor Car — Refusal to Renew— Disclosure
to Agent — Absence of Collusion— Validity of
Policy.]— The plaintiff insured a motor car
with an insurance company, but the company
refused to renew the insurance, and he
mentioned this fact to an agent of the defen-
dants, another insurance company. The
defendants" agent offered to propose him to
the defendants, and the plaintiff, on receiving
a proposal form, with the question whether
any company had refused to renew his
insurance, spoke about it to the defendants'
agent, who replied that he would make it all
right. The plaintiff did not fill in any answer
to the question. The company accepted the
proposal, and afterwards agreed that it should
cover a new Vauxhall car. Subsequently the
plaintiff insured a Siddeley car with the defen-
dants, and they had notice that the plaintiff
had had a previous insurance, but the spaces
for answers to the questions on the proposal
form were left blank. Accidents occurred to
both cars, and the defendants refused to pay
on the ground that the plaintiff had originally
represented that no insurance company had
refused to renew. The plaintiff brought an
action against the defendants for a declaration
that the policies on the Vauxhall and Siddeley
cars were valid. There was no evidence of
any collusion between the plaintiff and the
defendants' agent : — Held, that, as the plain-
tiff had made full disclosure to the defendants'
agent, and as there was no evidence of
collusion, the plaintiff was entitled to the
declaration. Thornton-Smith v. Motor Union
Insurance Co., 30 T. L. R. 139— Channell, J.
War Risks Policy for Three Months— Loss
of or Damage to Timber at Antwerp Caused
" by war . . . military or usurped power " —
Occupation of Antwerp by German Army
during Currency of Policy— Assured Unable
to Deal with Timber — Timber Intact at
Expiration of Policy.] —The plaintiffs, who
were a Japanese company carrying on business
in London and also at Antwerp, were insured
by a non-marine Lloyd's policy for a period of
three months from August 4, 1914, " against
loss of or damage to timber at Antwerp
directly caused by . . . war . . . military or
usurped power." The policy also provided
that no claim was to attach for delay or loss
of market. The city of Antwerp was occupied
by the German Army on October 9, 1914,
during the currency of the policy, and the
plaintiffs were unable to deal with the timber
or to sell it, and it remained under the custody
and control of the plaintiffs' agent in the same
warehouse at Antwerp as that in which it was
stored when the policy was taken out. On
November 3, 1914, when the policy expired,
the timber was still intact, although there
was considerable risk that the Germans might
seize it for military purposes, giving receipts
for it of doubtful value. The plaintiffs sued
one of the underwriters on the policy, alleging
that the timber had become a total and/or a
constructive total loss, and that they had
given notice of abandonment : — Held, that,
although there cannot be a constructive loss
under a policy which is not a policy of marine
insurance, yet the Court, in considering
whether there has been a loss under such a
policy, will take into account considerations
similar to those which would be taken into
account in determining a question of construc-
tive total loss under a policy of marine
insurance. Mitsui d Co. v. Mumford,
84 L. J. K.B. 514: [1915] 2 K.B. 27; [1915]
W.C. & I. Rep. 169; 112 L. T. 556; 20 Com.
Cas. 107; 59 S. J. 189; 31 T. L. R. 144—
Bailhache, J.
Held, further, that the fact that Antwerp
had become alien territory through its occupa-
tion by the Germans, and that the plaintiffs
were in consequence forbidden to have any
business relations with people in Antwerp, did
not constitute a loss of the timber within the
nolicy, and that, as the timber had not in
fact been seized by the Germans during the
currency of the policy, the actions failed. !b.
Re-insurance — Guarantee of Issue of Deben-
tures— Nature of Risk — Default of Company
— Deficiency in Security — Realisation at Dis-
cretion of Insurer.]— In 1903 the plaintiffs
and defendants entered into a contract under
which the defendants agreed to accept in re-
insurance 50 per cent, of risks, which the
plaintiffs agreed to re-insure, arising (among
other things) under debenture guarantees
given by the plaintiffs. The defendants'
liability was to commence simultaneously with
that of the plaintiffs and follow it in every
case. In 1904 the plaintiffs guaranteed an
issue of 4 J per cent, debentures made by
R. & Co. The principal of the debentures
was to become due on winding up. The
plaintiffs guaranteed the payment of interest
if R. & Co. made default, and also the prin-
cipal. The debentures were secured by a trust
deed, of which the plaintiffs were trustee.
The security was to become enforceable on
R. & Co.'s default in respect of principal or
interest, or on their winding up. The security
was then to be realised at the trustee's discre-
tion, with a power to postpone realisation,
the power to effect which was to be regarded
as conferred not only for the benefit of the
debenture-holders, but for the trustee's pro-
729
INSUKANCE.
730
tection and benefit as guarantor of the
debentures. The plaintiffs re-insured this risk
as to two-thirteenths with the defendants. In
1909 the plaintiffs went into liquidation ; and
under a scheme of arrangement sanctioned by
the Court the interest secured by the deben-
tures was to be payable at the rate of 3 per
cent, only ; the securities for the debentures
were to be realised under the direction of the
Court ; and the debenture-holders were placed
in the position of secured creditors. In 1911
E. & Co. went into liquidation, and made
default in payment of interest : — Held, that
the risk insured by the plaintiffs was the
default of E. & Co. in paying principal and
interest under the debentures, and not a
deficiency in the security for the debenture-
holders ; that the risk had therefore become
a claim ; and that there had been no such
alteration of the risk by reason of the liquida-
tion of the plaintiffs and the scheme of
arrangement as to relieve the defendants from
their liability as re-insurers, even if the risk
had been a deficiency in the security. Law
Guarantee Trust and Accident Society v.
Munich Re-insurance Co., 81 L. J. Ch. 188;
[1912] 1 Ch. 138; 105 L. T. 987; 56 S. J. 108
— Warrington, J.
Whether Creating Fiduciary Relation-
ship— What Risks Included — Liability of Re-
insurers.]— In November, 1897, a guarantee
society granted a policy of insurance of a
mortgage on a public house. By a treaty of
re-insurance made in June, 1898, between the
guarantee society and a re-insurance company,
and fixed to commence from May 16, 1898, the
company agreed, subject to certain stipula-
tions, to re-insure certain risks, including those
under mortgage insurance policies. The
liability of the company was to commence
simultaneously with that of the society, pro-
vided that advice of the issue of fresh policies
or cover notes was dispatched to the company
within a certain time, it being, however,
agreed that if through inadvertence re-insur-
ance was omitted the company would, on
certain conditions, hold the society covered for
twelve months. Notification of re-insurances
was to be forwarded to the company on a
certain form at least once a week, and notifica-
tion of renewals was to be forwarded to the
company on a similar form. In November,
1901, the original mortgagors of the public
house were released and a fresh mortgage to
the same mortgagees was executed by a new
mortgagor, there being several variations in
the new as compared with the old mortgage,
and a fresh policy of insurance of the new
mortgage was granted by the society. Ee-
insurance of the new policy was effected by the
society with the company, but all material
facts relating to the risk were not disclosed
by the society to the company. In 1908 the
mortgagees called in their mortgage and the
society became liable to make a payment under
the policy. In the following year the company
repudiated liability to the society : — Held, on
a case stated in an arbitration between the
society and the company, that the re-insurance
treaty was a contract of indemnity only, and
did not create a fiduciary relationship between
the parties, that the right of the society to
call for an indemnity did not include risks
undertaken before the date fixed for the com-
mencement of the contract, but that the sub-
stance of the insurance of November, 1901,
was not the same as that of the insurance of
November, 1897, and that therefore the com-
pany was liable under the treaty to pay their
quota of the loss due from the society to
the insured. Law Guarantee Trust and
Accident Society v. Munich Re-insurance Co.,
31 T. L. E. 572— Eve, J.
F. INSURANCE COMPANIES.
See also Vol. VIIL 124, 1686.
I. CAEEYING ON LIFE ASSUEANCE
BUSINESS.
Memorandum of Association — Life Assur-
ance — Policies in Relation to Life Ultra
Vires.] — A limited company, which, by its
memorandum of association was prohibited
from carrying on the business of life insur-
ance, issued policies in two different forms.
By one of these policies it undertook in con-
sideration of a certain weekly premium to pay
the policy-holder the respective sums of 61.,
11. 10s., and 9L at the end of five, ten, and
fifteen years respectively; but, in the event
of his death before the end of the fifteen years,
all premiums paid since the last payment made
by the company were to be returned to his
personal representatives. By the second
policy it undertook, in consideration of a
certain premium, to pay the policy-holder a
certain sum at the termination of a certain
number of years; but, in the event of his
death before the end of the term, a certain
percentage of the premiums already actually
paid was to be returned to his personal repre-
sentatives : — Held, that policies made in either
of these two forms were policies of life insur-
ance, and therefore, as such, ultra vires the
company. Joseph v. Law Integrity Insurance
Co., 82 L. J. Ch. 187; [1912] 2 Ch. 581;
[1913] W.C. & I. Eep. 337; 107 L. T. 538;
20 Manson, 85— C. A.
Industrial Society — Sums Payable to Mem-
bers on Death — Proportion of Average Pur-
chases— Life Assurance Business — " Policy
of life assurance."] — The defendants, an
industrial and provident society registered
under the Industrial and Provident Societies
Act, 1876, in 1911 amended their rules so as
to provide that they should have power to
carry on the business of insurance under
rule 14a, which empowered the committee of
management to invest or appropriate out of
investments or from the profits of the business
" a fund for insuring the building, fixtures,
and stock against losses by fire or otherwise,
also for providing a sum to be paid on the
death of a member, or the wife or husband of
a member, such sum to be proportioned to
one year's average purchases of the member
from the society during the three years imme-
diately preceding death." After the adoption
of this rule the society advertised " free life
insurance " and that it paid 4s. in the pound
731
IXSUEANCE.
732
on the average twelve months' purchases on
the death of a member or husband of a
member, and 2s. in the pound on the death
of a married woman member or wife of a
member, and sums were in fact paid on the
deaths of members and of the husbands and
wives of members. The plaintiff, a member
of the society, brought an action alleging that
the society was carrying on life insurance
business and was an assurance company
within the Assurance Companies Act, 1909,
and that the business was ultra vires, and in
any case could not be carried on without a
deposit of 20,000L in accordance with the Act,
and he asked for an injunction to restrain the
society from so doing. Members of the society
received share books, membership cards, pur-
chase books, and copies of rules of the society :
— Held (Phillimore, L.J., dissenting), that
the society was not carrying on life assurance
business within the Assurance Companies Act,
1909. The membership cards or other docu-
ments received by members did not constitute
policies of assurance within the Act, which,
by section 30 (a) provides that a " policy on
human life " means " any instrument by
which the payment of money is assured on
death ... or any instrument evidencing a
contract which is subject to payment of pre-
miums for a term dependent on human life."
Hampton v. Torteth Co-operative Society,
84 L. J. Ch. 633: [1915] 1 Ch. 721 ; 113 L. T.
62: [1915] W.C. & I. Eep. 488; 59 S. J. 397;
31 T. L. E. 314— C.A.
n. TEANSFER OF BUSINESS.
Competency of Application for Sanction to
Proposed Transfer.] — The directors of an
insurance company, which was conducting
{inter alia) an unprofitable life insurance
business, and which had power under its
memorandum and articles of association to
sell or dispose of the business and property of
the company or any part thereof in considera-
tion of payments in cash, or such other con-
siderations as the directors might deem proper,
entered into an agreement with another com-
pany, of greater financial stability, in terms
of which the life policies of the former com-
pany were to be cancelled and policies of the
latter company, on terms generally similar to
those of the cancelled policies, were to be
issued in lieu thereof. Non-profit policies were
to be issued in lieu of cancelled profit-bearing
policies, but the holders of such policies had
the option of obtaining profit-bearing policies
of the new company at an increased premium,
and an actuary reported that the future bonus
prospects of such insured would be greatly
improved under the new policies. None of the
policy-holders objected to the proposed trans-
fer. In a petition under section 13 of the
Assurance Companies Act, 1909, for sanction
of this arrangement, presented in name of the
company,— /ff?d, first (duh. Lord Johnston),
that the petition had been competently pre-
sented althouch it was in the name of the
company and not of the directors ; and
secondly {diss. Lord Johnston), that the pro-
posed arrangement, although it involved the
cancelling of the old policies and the issuing
of new policies, was a transfer of business
within the meaning of section 13 ; and, further,
that under the articles of the company it
was within the powers of the directors to
enter into such an arrangement. Empire
Guarantee and Insurance Corporation, In re,
[1911] S. C. 1296— Ct. of Sess.
Sale of Business of Insurance Company —
Specific Performance — Failure to Deliver —
Deposit under Assurance Companies Act,
1909.] — The respondent company agreed to sell
their business to the appellant company,
including a sum of 20,000L deposited with the
Paymaster-General under the provisions of
section 2 of the Assurance Companies Act,
1909, as a condition of carrying on employers'
liability insurance business : — Held, that such
deposit could only be transferred subject to the
outstanding liabilities on policies issued by the
respondents in respect of employers' liability
insurance business, and that the respondents
were entitled to specific performance of the
contract, although they could not give a clean
transfer of the 20.000L deposit. United
London and Scottish Insurance Co. v. Omnium
Insurance Corporation, 84 L. J. Ch. 777 —
H.L. (E.)
Judgment of the Court of Appeal af&rmed.
lb.
Dispensing with Notice to Policy-holders.]
— On an amalgamation or transfer under the
Assurance Companies Act, 1909, s. 13, the
Court will, where the policies are very
numerous and of small value, dispense with
the statutory notice to small policy-holders,
but this will only be done where other steps
are taken to inform the policy-holders of the
proposed arrangement, and to give them an
opportunity of objecting to the same. Hearts
of Oak Assurance Co., In re (No. 1), 58 S. J.
433— Eve, J.
Petition — Absence of Opposition — Duty of
Court.] — Under section 13 of the Assurance
Companies Act, 1909, the Court has the duty
of considering objections to the transfer of one
assurance company to another, whether there
is or is not any opposition to the petition for a
transfer. Hearts of Oak Assurance Co., In re
(No. 2), 30 T. L. R. 436— Eve, J.
"Subsidiary company."] — The fact that
one assurance company has acquired a con-
trolling interest in another assurance company
by the purchase of shares in that other com-
pany, and that the two companies have entered
into agreements for the guaranteeing of each
other's policies and for mutual re-insurance,
does not amount to a transfer of assurance
business so as to constitute one company a
subsidiary company and the other a principal
company within section 16 of the Assurance
Companies Act, 1909. Lancashire Plate-Glass
Fire, and Burqlary Insurance Co., In re,
81 L. J. Ch. 199; [1912] 1 Ch. 35: 105 L. T.
570; 19 Manson, 149; 56 S. J. 13— Swinfen
Eady, J.
in. DEPOSIT.
Application for Payment of Dividends — Sum-
mons or Petition.] — An application for pay-
733
INSURANCE— IXTEEEST.
784
ment of dividends on the deposit paid into
Court, under the Life Assurance Companies
Act, 1909, and the Board of Trade Order, 1910,
rules 2-4, may be made by summons under
Order LV. rule 2 (3) of the Rules of tlie
Supreme Court, 1883, and need not be made
by petition. Royal Exchange Assurance
Corporation, In re ([1910] W. N. 211) not
followed. New York Life Assurance, In re,
60 S. J. 106— Sargant, J.
See also British Union and National Insur-
ance Co., In re, post, col. 734.
IV. WINDING-UP.
Creditors — Policy-holder.] — A Scottish in-
surance company, carrying on employers'
liability insurance and other classes of insur-
ance business, entered into a contract of
re-insurance with a Welsh insurance company
whereby it undertook, in consideration of a
percentage of the premiums, to relieve the
Welsh company of claims arising under its
employers' liability insurance policies. The
Scottish company having gone into liquida-
tion at a date when it was indebted, under
the re-insurance contract, to the Welsh com-
pany in certain sums, the latter company
claimed to be ranked in respect of these sums
on the employers' liability fund of the Scottish
company along with its direct policy-holders :
— Held, first, that section 3 of the Assurance
Companies Act, 1909, did not give a preference
on the separate fund of a particular class of
business to the policy-holders over the ordinary
creditors of the company having claims in con-
nection with that class of business ; and
secondly, that the Welsh company as a creditor
of the Scottish company in its employers'
liability insurance business, was accordingly
entitled to be ranked, along with the direct
policy-holders, on that company's employers'
liability fund. Glasgow Assurance Cor-
poration (Liquidators) v. Welsh Insurance
Corporation, [1914] S. C. 320— Ct. of Sess.
Whether the Welsh company was a " policy-
holder " of the Scottish company within the
meaning of the Act, queer e. lb.
Employers' Liability Policies — Liabilities
"requiring to be valued" — Date at which
Valuation to be Ascertained.] — Employers
were insured against workmen's compensation
risks with an insurance company which went
into liquidation. At the date of the liquida-
tion the employers were making weekly
payments to two of their workmen, who had
been injured. After the date of the liquida-
tion, but before they had lodged a claim for
a ranking, they compromised these weekly
payments for a lump sum. Thereafter they
lodged a claim for a ranking for a sum made
up according to the Eules in the Schedule
to the Assurance Companies Act, 1909, for
valuing weekly payments. That sum was
greatly in excess of the amount actually paid
by them to compromise the workman's claims.
They maintained, however, that the valuation
of the liability under the policy fell to be
made as at the date of liquidation, and was
unaffected by the subsequent compromise of
the weekly payments. The Court rejected the
claim, holding that the provisions of the
Assurance Companies Act did not apply in
respect that the date when the valuation fell
to be made was the date of the claim, and
that, as the value of the weekly payments
had de facto been ascertained at that date,
there was no liability " requiring to be
valued." Empire Guarantee and Insurance
Corporation (Liquidators) v. Owen d; Sons,
Lim., [1915] S. C. 985— Ct. of Sess.
Contributories — Mutual Insurance Policies
— Fixed Premium Policies — Liabilities of
Policy-holders.] — Held, on the construction of
the P. Underwriting Association's memo-
randum, that the liability of holders of mutual
insurance policies issued by the association
was limited to bl. in respect of each policy.
Held, further, that the association could
validly issue fixed-premium policies, but that
the holders of these policies had not by taking
them out thereby agreed to become members
of the association, and therefore that they
were not properly put on the list of contri-
butories in the winding-up of the association.
Corfield v. Buchanan, 29 T. L. R. 258—
H.L. (E.)
Life Assurance Deposit — Priorities — Claim
of Fire and Accident Policy-holders. 1 — In the
winding-up of an insurance company trans-
acting life assurance and other business, —
Held, that the holders of fire and accident
policies had no claim upon the statutory
deposit of 20,000Z. made in respect of the life
assurance business in priority to the claims
of general creditors. British Union and
National Insurance Co., In re, 83 L. J. Ch.
596; [1914] 1 Ch. 724; 21 Manson, 297;
30 T. L. R. 290— Astbury, J.
Annuity Granted to Manager of Life
Department in Compromise of Claim for
Damages — Claim of Annuitant.] — The com-
pany by deed had agreed to pay an annuity
to a former manager of their life department
in satisfaction of a claim for breach of con-
tract to employ : — Held, that the manager was
an " annuitant " within the meaning of
section 30 (b) of the Assurance Companies Act,
1909, and could claim priority for his annuity
out of the statutory deposit as a life policy-
holder over the general creditors. British
Union and National Insurance Co.. In re,
83 L. J. Ch. 596: [1914] 2 Ch. 77; 111 L. T.
357; 21 Manson, 297: 30 T. L. E. 520— C. A.
INTEREST.
Claim for Sum Certain — Set-off. 1 — A claim
may be for a " sura certain " within the
meaning of section 28 of the Civil Procedure
Act, 1833, upon which interest may be claimed,
notwithstanding that a set-off is pleaded which
may cause a reduction in the amount which
may finally be found due to the plaintiff.
Alexandra Docks and Railway Co. v. Ta^ Vale
Railway, 28 T. L. R. 163— C.A.
735
INTEREST— INTERNATIONAL LAW
736
As Damages.]— ^ee Damages.
On Arrears of Annuity.] — See Annuity.
On Costs.]— See Costs.
On Legacies.] — See Will.
INTERNATIONAL LAW.
I. Sovereign States, their Rulers and
Officers, 735.
n. Persons.
a. British Nationality, 736,
b. Alienage — See Aliens.
c. Husband and Wife and Divorce.
1. Marriage, 736.
2. Marriage Settlement, 737.
3. Divorce, 738.
4. Other Matters, 739.
III. DoMiciL, 740.
IV. Property, 741.
V. Contracts, 743.
VI. Foreign Judgment, 743.
VII. Foreign Award, 746.
Vin. Prize Court. See War.
I. SOVEREIGN STATES, THEIR EULEES
AND OFFICERS.
See also Vol. VIII. 178, 1693.
Indian Native Prince — Extra-territoriality
— Status of Sovereign.] — The native princes
of India, falling within the class referred to
in section 18, sub-section 5 of the Interpreta-
tion Act, 1889, though not independent, but
subject to the suzerainty of his Majesty, are
reigning sovereigns to the extent that they
are immune from the jurisdiction of an English
Court. An Indian prince, coming within this
category and sued as co-respondent in a suit
for divorce, was on his application struck out
of the proceedings. Statham v. Statham,
81 L. J. P. 33; [1912] P. 92; 105 L. T. 991;
28 T. L. R. 180— Bargrave Deane, J.
Diplomatic Privilege — Waiver.] — A foreign
diplomatist is, by common law and statute,
absolutely exempt from the jurisdiction of the
English Courts. If the decision in Taylor v.
Best (23 L. J. C.P. 89; 14 C. B. 487) can be
maintained, and it is sought to shew that he
has waived his privilege, the waiver must be
strictly proved, and it must also be shewn
that he had at the time of the alleged waiver
a full knowledge of his privileged position and
a desire to waive it. Further, the privilege
being that of the sovereign State which he
represents, it is doubtful if a diplomatist can
waive his right to exemption and submit
himself to the jurisdiction of the English
Courts without first obtaining the sanction of
his own Government. Republic of Bolivia
Exploration Syndicate, Lim., In re {No. 1),
83 L. J. Ch. 226 ; [1914] 1 Ch. 139 ; 109 L. T.
741; 110 L. T. 141; 58 S. J. 173; 30 T. L. R.
78— Astbury, J.
II. PERSONS.
See also Vol. VIII. 196, 1694.
a. Britisli Nationality.
Son Born Abroad of Naturalized British
Subject.] — Prior to the coming into operation
of the British Nationality and Status of AUens
Act, 1914, a child born in a foreign State did
not, by the mere fact that his father was a
naturalized British subject, obtain the status
of British nationality. Rex v. Albany Street
Police Superintendent; Carlebach, Ex parte,
84 L. J. K.B. 2121; [1915] 3 K.B. 716;
113 L. T. 777; 31 T. L. R. 634— D.
b. Alienage. — See Aliens.
c. Husband and Wife and Divorce.
1. Marriage.
English Suit for Restitution of Conjugal
Rights — English Marriage — Parties Resident
and Domiciled Abroad — Foreign Court — Decree
of Nullity — Jurisdiction of English Court.] —
Where a marriage has been celebrated in
England between two persons, neither of
whom has ever possessed a domicil or a
residence in England, the English Court has
no power, in a suit for restitution of conjugal
rights, to serve the citation and petition upon
the respondent abroad or to grant a decree
of restitution, or to entertain a suit for a
declaration that the marriage is valid. De
Gasquet James (Couyitess) v. Mecklenburg-
Schwerin {Duke), 83 L. J. P. 40; [1914] P. 53;
110 L. T. 121 ; 58 S. J. 341; 30 T. L. R. 329
— Evans, P.
The principle of the decision in De Gasquet
James (Countess) v. Mecklenburg-Schwerin
{Duke) (83 L. J. P. 40; [1914] P. 53),
negativing power in the Court to order service
of process out of the jurisdiction in a suit for
restitution of conjugal rights, is restricted to
the case of a respondent not domiciled or resi-
dent in England at the time of the institution
of the suit, or, semble, who had not a matri-
monial home in England at the date when
cohabitation ceased. Where it appears from
the petition that the parties were domiciled in
England at the time of the institution of the
suit, or that they had a matrimonial home in
England at the date when cohabitation ceased,
or that they were both resident in England at
the time of the institution of the suit, the
petition and citation may be served either
within or without His Majesty's dominions,
and in any event a decree for restitution of
conjugal rights may be so served if made in a
suit which there was jurisdiction to entertain.
Additional Divorce Rules 221 and 222 will
regulate the practice so laid down. Perrin v.
Perrin; Powell V. Powell, 83 L. J. P. 69;
[1914] P. 135 ; 111 L. T. 335 ; 30 T. L. R. 497
—Evans, P.
737
INTEKNATIONAL LAW.
^38
2. Marriage Settlement.
Scottish Law — Scottish Domicil — English
Settlement — Husband's Contract as to
Separate Property — After-acquired Property
Clause — Jus Relicti and Legitim — Contract
"Affected."] — An Englishwumaii luarried to
a domiciled Scotchman made a will by which
she disposed, to the complete exclusion of her
husband and their only child, of all her movable
property, consisting of savings out of the
income of movable property to which she was
entitled for life for her separate use without
power of anticipation — (a) under an ante-
nuptial settlement made by her father in
English form (her husband being a party and
covenanting to settle in like manner her after-
acquired property, with a trust for its con-
version in common form), and (h) under the
wills of third parties. The husband and child
having claimed the jus relicti and legitim given
to surviving husbands and children by sec-
tions 6 and 7 of the Married Women's Pro-
perty (Scotland) Act, imi,— Held, that the
settlement, construed as it must be according
to English law, amounted to a contract by the
husband, binding on him and on the issue, that
the wife should have a power (inter alia) of
disposition by will — such being the effect of
saying that the property should belong to her
for her separate use ; that this power was not
lost by her acquiring on her marriage a
Scottish domicil; that, seeing she had exer-
cised the power, the rights given by the law
of the domicil were subject thereto ; that
savings out of income were as nmch separate
property as the income ; that savings out of
income derived under the wills were equally
within the contract, and were not liable to
conversion (the express wording of the trust
excluding them) or affected by the restraint on
anticipation — imposed, as this was held to be,
by the settlement itself and not merely by
third parties ; and that even if the settlement
were construed according to Scottish law the
result would be the same, since the power of
testamentary disposition was a par contractus ,
and, as such, was saved by section 8 of the
Act from being " affected " by the two previous
sections. Mackenzie, In re; Mackenzie v.
Edwards Moss, 80 L. J. Ch. 443; [1911] 1 Ch.
578; 105 L. T. 154; 55 S. J. 406; 27 T. L. R.
337— Swinfen Eady, J.
Destination to "next-of-kin" — Marriage
Contract Executed in Scotland — Spouses
Dying Domiciled in England.] — An ante-
nuptial contract of marriage was entered into
between an Englishman residing in Scotland
and a Scotswoman. The contract was pre-
pared by a Scottish solicitor, was in Scottish
form, and contained a provision that a fund
provided by the wife should after her death,
failing issue, belong to her " next-of-kin,
excluding her husband." Some years after
the marriage the parties moved from Scotland
to England, and the wife died domiciled there :
— Held (Lord Johnston dissenting), that it
was the intention of the parties to the contract
that the wife's next-of-kin entitled to succeed
to the fund should be ascert.ained according to
the law of Scotland, and accordingly that
brothers and sisters of the half-blood were
excluded. Lister's Judicial Factor v. SymCj
[1914] S. C. 204— Ct. of Sess.
Scottish Settlement — Beneficiaries and
Trustees Resident in England — Form.] —
The marriage settlement of an Englishman
and a lady of Scottish domicil, comprised
both English property of the husband and an
interest in reversion of the wife under a
Scottish settlement made in Scottish form, in
terms unknown to English law ; the bene-
ficiaries and the present trustees were now
all resident in England, and the whole of the
trust funds were now invested in English
securities : —//e/d, that the settlement still
remained a Scottish settlement, to be dealt
with in accordance with Scottish law, and
that the Public Trustee could not act as trustee
of a Scottish or foreign settlement. Hewitt's
Settlement, In re : Hewitt v. Hewitt, 84 L. J.
Ch. 358; [1915] 1 Ch. 228; 112 L. T. 287;
59 S. J. 177 ; 31 T. L. R. 81— Eve, J.
3. Divorce.
Marriage in England between English-
woman and Domiciled Mexican — Irregularity
by Mexican Law.] — The petitioner, an
Englishwoman, married in England a domi-
ciled Mexican. By Mexican law a marriage
is not valid in Mexico unless it is registered
by one or other of the parties to it. The
marriage of the petitioner and respondent had
not been registered in Mexico. The petitioner,
by registering the marriage in Mexico, could
have obtained a judicial separation, a decree
of divorce not being granted in that country.
The petitioner having brought a suit for
divorce in this country on the ground of the
respondent's adultery, cruelty, and desertion,
— Held, that as the respondent's domicil was
Mexican, the Court had no jurisdiction to
entertain the suit. Ramos v. Ramos,
27 T. L. R. 515— Bargrave Deane, J.
Marriage Solemnised in England between
Greek Subject and Domiciled Englishwoman
— Decree of Nullity in Greece at Instance of
Husband — Re-marriage of Husband — Suit by
Wife for Divorce in England.] — The peti-
tioner, a domiciled Englishwoman, was married
in England to the respondent, who was a
Greek subject domiciled in Greece. Subse-
quently the husband deserted the petitioner,
and obtained from a Greek Court a decree of
nullity of his marriage with the petitioner on
the ground that it had not been celebrated in
accordance with the rites of the Greek Church,
in that no priest of that Church was present at
the ceremony as required by Greek law. The
respondent thereafter married another woman
in Greece, with whom he was living. The
petitioner filed a petition for divorce on the
ground of the respondent's desertion and adul-
tery : — Held, that the Court had jurisdiction
to grant the relief claimed by the petitioner,
inasmuch as the respondent having gone
abroad and taken adverse advantage of his
own domicil, the petitioner had reverted to
her English domicil. Stathatos v. Stathatos,
82 L. J. P. 34; [1913] P. 46; 107 L. T. 592;
56 S. J. 114; 29 T. L. R. 54— Bargrave
Deane, J.
24
739
INTEENATIONAL LAW.
740
English Marriage Annulled by Domestic
Tribunal of Foreign Husband Domiciled
Abroad — Wife Left in Country where
Marriage Recognised as Valid — Wife Treated
as having Domicil of her Own — Capacity of
Wife to Sue in Court of her Domicil for
Causes there Recognised.] — The rule that the
domicil of the spouses, which is that of the
husband, is the test of jurisdiction in cases of
dissolution, is not without exception. In cer-
tain cases a wife may be treated as having a
domicil in her own country, which is not that
of the husband. The rule as to domicil
assumes the existence of a marriage the
validity of which is recognised in the country
where the suit is brought and that both parties
are domiciled there. If, however, the country
of the husband's domicil refuses to recognise
the marriage, and therefore will not entertain
a suit for divorce against him, the justice of
the rule as to domicil, which is international,
ceases to be apparent, and the wife, having no
right of suit against the husband in his
country, and being left in the country of her
original domicil, where the marriage was cele-
brated and is still recognised as binding upon
both parties, is entitled to sue in the latter
country for the dissolution of the tie, which is
recognised therein, though not in her hus-
band's country, in cases where the grounds of
suit would be sufficient for a divorce if the
husband had been domiciled in her country.
De Montaigu v. De Montaigu, 82 L. J. P. 125 ;
[1913] P. 154; 109 L. T. 79; 57 S. J. 703;
29 T. L. R. 654— Evans, P.
Dictum of Lord Gorell in Ogden v. Ogden
(77 L. J. P. 34, at p. 51; [1908] P. 46, at
p. 82) followed. Stathatos v. Stathatos
(82 L. J. P. 34; [1913] P. 46) approved. lb.
4. Other Matters.
General Power of Appointment under
English Will — Exercise by Domiciled
Foreigner — Operation of — Law of Domicil.] —
A domiciled Dutchwoman having under an
English will a general testamentary power of
appointment over personal property, made a
will in Dutch form, but executed and attested
as required by English law, whereby she
appointed her husband sole heir of all of which
the law in force at the time of her death should
allow her to dispose in his favour, and
appointed him her executor. According to
Dutch law the testatrix could not dispose of
more than seven-eighths of her own estate in
this way, the remaining one-eighth going to
her mother : — Held (reversing Parker, J.),
that, the effect of the will being to make the
appointed property assets of the testatrix for
all purposes, the disposition became subject to
the law of the domicil, and that the husband
was therefore beneficially entitled to no more
than seven-eighths of the appointed property,
the remaining one-eighth going to the mother.
Hadley, In re; Johnson v. Hadley (78 L. J.
Ch. 254; [1909] 1 Ch. 20), followed and
applied. Pouey v. Hordern (69 L. J. Ch.
231 ; [1900] 1 Ch. 492), Megret, In re ; Tweedie
V. Maunder (70 L. J. Ch. 451; [1901] 1 Ch.
547), and Bald, In re; Bald v. Bald (76 L. T.
462), considered. Pryce, In re; Lawford v.
Pryce, 80 L. J. Ch. 525; [1911] 2 Ch. 286;
105 L. T. 51— C. A.
Will of Domiciled Foreigner — Restriction on
Testamentary Capacity by Law of Domicil —
Subsequent Acquisition of English Domicil —
Extension of Power of Disposition — Effect on
FroYisions of Will.]— By her will made in
1868, in Dutch form, a domiciled Dutch-
woman appointed her husband heir of her
estate " with the reservation only of the
legitimate portion or the lawful share coming
to her relatives in a direct line." By Dutch
law she could only dispose by will of one-fourth
of her estate, the remaining three-fourths
passing to her children. In 1889 she and her
husband came to live in this country, and
acquired an English domicil. She died in
19()3, leaving her husband and several
children surviving her : — Held, that on the
true construction of the will the testatrix had
not made a gift of three-fourths of her estate
to her children, but had constituted her hus-
band her universal legatee so far as she could
so constitute him, while recognising the
possibility that her children would become
entitled to share in her estate, and that, her
testamentary power of disposition having been
extended to the whole of her estate by her
acquisition of an English domicil, the whole
of her residuary estate passed to her husband.
Bridget, In re ; Brompton Hospital v. Lewis
(63 L. J. Ch. 186; [1894] 1 Ch. 297), applied.
Groos, In re ; Groos v. Groos, 84 L. J. Ch. 422 ;
[1915] 1 Ch. 572; 112 L. T. 984; 59 S. J. 477
— Sargant, J.
Foreign Parents Divorced Abroad — Decree
of Foreign Court Regulating Access to
Children.] — The marriage of two domiciled
Danes was dissolved by decree under the law
of Denmark. By this decree the custody of a
son of the marriage was awarded to the father
and access to the child by the mother was
refused. Thereafter, both parents being resi-
dent in Scotland, the mother presented a
petition to the Scottish Courts for access to the
child " in respect of her natural rights as his
mother " : — Held, that the question of access
having been determined by the Court of the
parents' domicil, the Scottish Courts had no
jurisdiction to entertain an application based
on such grounds. Westergaard v. Wester-
guard, [1914] S. C. 977— Ct. of Sess.
Semble, the Scottish Courts have power to
protect the children of foreign parents resident
in Scotland, and may for this purpose intervene
in an application brought in the interests of
the children. lb.
III. DOMICIL.
See also Vol. VIII. 235. 1703.
Married Woman Entitled to Judicial
Separation — Separate Domicil.] — A married
woman who had left her husband, a domiciled
Scotchman, successfully defended a Scottish
suit brought by him, on the ground of
wilful non-adherence and desertion, for divorce
a vinculo, the House of Lords expressing the
opinion that she would be entitled to a decree
for judicial separation. She did not claim
741
INTEENATIONAL LAW
.742
such a decree, but lived apart till her death
under circumstances evincing an intention to
acquire an English domicil : — Held, on the
authority of Dolphin v. Robins (29 L. J.
P. 11; 7 H.L. C. 390), that she had no power
to acquire a new domicil independent of that
of her husband. Mackeyizie, In re; Mackenzie
V. Edwards-Moss, 80 L. J. Ch. 443; [1911]
1 Ch. 578; 105 L. T. 154; 55 S. J. 406;
27 T. L. E. 337— Swinfen Eady, J.
See also cases under Divorce, ante,
cols. 738, 739.
IV. PEOPEETY.
See also Vol. VIII. 257, 1706.
Charity — Mortmain — Bequest — Testator
Domiciled in England — Mortgages on Free-
holds in Ontario — Movables or Immovables —
Impure Personalty — Lex Rei Sitae — Invalidity
of Bequest.] — A testator, who died in 1888,
domiciled in England, bequeathed property,
which included mortgages on freeholds in
Ontario, for charitable purposes. The mort-
gages contained covenants to pay the moneys
thereby secured. At the date of the testator's
death the Charitable Uses Act, 1735, then in
force, extended to Ontario, and would ad-
mittedly have invalidated the bequest of the
mortgages had the testator been domiciled
there : — Held (Fletcher Moulton, L.J., doubt-
ing), that mortgages on land are deemed to be
immovables and not movables, and governed
by the lex rei sitce, and that therefore the
bequest of the mortgages w^as a gift of impure
personalty and was invalid. Jeringham v.
Herbert (6 L. J. (o.s.) Ch. 134; 4 Russ. 388)
and Fitzgerald, In re; Surman v. Fitzgerald
(73 L. J. Ch. 436; [1904] 1 Ch. 573), applied.
Hoyles, hi re; Row v. Jagg {No. 1), 80 L. J.
Ch. 274; [1911] 1 Ch. 179; 103 L. T. 817;
55 S. J. 169 ; 27 T. L. R. 131— C.A.
The terms " movable " and " immovable "
are not technical terms in English law, though
they are often used, and conveniently used, in
considering questions between English law and
foreign systems which differ from that law.
But where the two systems are identical,
qucere whether the terms are appropriate — per
Cozens-Hardy, M.E. The division into mov-
able and immovable property is no part of the
law either of England or of Canada, and is
only called into operation in England when
the English Courts have to determine rights
between domiciled Englishmen and persons
domiciled in countries which do not adopt the
English division into real and personal pro-
perty— Tper Farwell, L.J. 7b.
Disposition by One Instrument of Real
Estate in England and Scotland — Use of
Technical Expressions Creating Estate Tail
in England — Difference of Incidents of Estate
in England and Scotland — Giving Effect to
Estate as to English Realty according to
English Law.l — yi.. l>eing seised in fee-
simple of real estate in England, and entitled
to a disposable estate according to the law of
Scotland in lands in Scotland, made a trust
disposition and settlement in Scotch form
whereby he directed his trustees to hold his
heritable or real estate in Scotland, and the
real estate in England, for behoof of his eldest
son and the heirs male of his body in fee,
whom failing his second son and the heirs male
of his body in fee. By the law of Scotland
this disposition did not create a strict entail,
but gave the eldest son power to dispose of the
property. The eldest son died without issue
and without having disentailed, but leaving a
trust disposition and settlement effectual, by
Scotch law, to dispose of the property : — Held,
that the words " heirs male of his body in
fee " being technical and proper expressions
for the creation of an estate in tail male in
lands in England, that estate must take effect
as to the English real estate according to the
law of England, although the incidents of an
estate tail in Scotland were different from its
incidents in England. Observations of Lord
Selborne in Studd v. Cooh (8 App. Cas. 577)
applied. Miller, In re; Baillie V. Miller,
83 L. J. Ch. 457 ; [1914] 1 Ch. 511 ; 110 L. T.
505; 58 S. J. 415— Warrington, J.
Foreign Lunatic not so Found — Provisional
Administrator — Order of French Court —
Securities in Hands of English Bailees —
Refusal to Deliver without Order of the
English Court.] — A domiciled Frenchman
resident in Paris deposited securities for safe
custody with the defendants in London. He
afterwards became a person of unsound mind
not so found, and a provisional administrator
of his property was appointed by the French
Court with express power to receive the securi-
ties in question. The defendants, however,
when requested to do so, refused to act on the
order of the French Court, and insisted on an
action being brought in the English Court, in
which they submitted to act as the Court
should direct, but claimed to retain their costs
of the action. There were no lunacy proceed-
ings in England : — Held, that having regard
to the decision of the Court of Appeal in
DidisJieim v. London and Westminster Bank
(69 L. J. Ch. 443; [1900] 2 Ch. 15), the
defendants, in refusing to act on the order of
the French Court, had shewn an undue and
unreasonable excess of caution, and ought to
bear their own costs of the action. Piligrin
V. Coutts d Co.; PiUgrin v. Messel d Co.,
[1915] 1 Ch. 696 ; 113 L. T. 140— Sargant, J.
Domiciled Foreigner — Italian Holograph
Will— Gift of English Real Estate— Election.'
— Certain real estate at D. in England was
devised to A. by an Italian will by a testatrix
domiciled in Italy at the date of her death.
The testatrix also thereby nominated her
daughter, who was her heiress-at-law, the
residuary legatee of her real and personal
estate of whatsoever nature, but the will was
not executed so as to pass real estate according
to English law : — Held, that the daughter was
under no obligation by virtue of any actual
or implied contract to give up to A. the real
estate at D., nor was she, under the circum-
stances of the case, bound to elect between
the personalty bequeathed to her and the real
estate at D. Ilearle v. Greenbank (3 Atk.
695, 715) followed. De Virte. In re: Vaiani
V. De Virte, 84 L. J. Ch. 617; [1915] 1 Ch.
920; 112 L. T. 972— Jovce, J.
743
INTEKNATIOXAL LAW.
744
V. CONTRACTS.
See also Vol. VIII. 280, 1713.
By what Law Governed — Minor with
Foreign Domicil Contracting in Scotland.] —
A minor, whose domicil was Irish and whose
father resided in Ireland, took service as a
labourer with a firm in Scotland. He was
injured by an accident in the course of his
employment, for which he agreed, without
consulting his father, to accept compensation
under the Workmen's Compensation Act, 1906.
After compensation had been paid for some
time he brought an action claiming damages
at common law in respect of his injuries, con-
tending {inter alia) that being a minor he was
not bound by the agreement : — Held, that the
pursuer's capacity as a minor to enter into the
agreement fell to be determined not by the
lex domicilii (Irish law), but by the lex loci
contractus (Scots law). M'Feetridge v.
Stewarts and Lloyds, [1913] S. C. 773—
Ct. of Sess.
Contract made in England and in Accord-
ance with Law thereof — Agreement to Submit
to Arbitration — Proceedings Commenced in
Foreign Court in Breach of Contract —
Jurisdiction to Restrain.] — The Court has dis-
cretionary jurisdiction to restrain the prosecu-
tion of proceedings in a foreign Court by an
English person, if the bringing of those pro-
ceedings is in breach of a contract made in
this country. Where, therefore, a contract
provided that the same should be "construed
and take effect as a contract made in England
and in accordance with the law of England,"
and that the rights, duties, or liabilities of
the parties thereto should be referred to
arbitration in conformity with the provisions
of the Arbitration Act, 1889, the award of
the arbitrators to be a condition precedent to
any liability of either party, an injunction to
restrain one of the parties from continuing or
prosecuting (except under or in pursuance of
an award under the contract) proceedings
commenced by that party against the other in
a foreign Court was held to be rightly
granted. Hamlyn v. Talisker Distillery Co.
([1894] A.C. 202) applied. Pena Copper
Mines v. Rio Tinto Co., 105 L. T. 846— C. A.
VI. FOREIGN JUDGMENT.
See also Vol. VIII. 323, 1720.
French Law — Prosecution for Criminal
Offence — Intervention of Person Claiming
Damages — Judgment Awarding Damages and
Inflicting Penalties — Severability.] — By the
liiw of France, where a prosecution is instituted
for a criminal offence a person who has been
damaged by the act constituting the criminal
offence has the option, instead of instituting
separate civil proceedings, of intervening in
the prosecution and claiming damages from
the accused, and the Court may award him
damages and at the same time inflict a penalty
for the criminal offence : — Held, that for the
purpose of enforcing in this country the part
of the judgment awarding damages, that part
can be severed from the part inflicting the
penalty, and that such enforcement is not a
violation of the rule of international law that
the Courts of one country will not enforce the
penal laws of another. Raulin v. Fischer,
80 L. J. K.B. 811; [1911] 2 K.B. 93;
104 L. T. 849; 27 T. L. R. 220— Hamilton, J.
Rule of Foreign Law Excluding Evidence
of Parties — Whether Contrary to Substantial
Justice.] — The Court will not refuse to
enforce a judgment obtained in an Italian
Court merely because by Italian law neither
party to a litigation can be called as a witness
on his own behalf. The exclusion of such
evidence cannot be said to be contrary to sub-
stantial justice within the meaning of the rule
laid down by Lindley, M.R., in Pemberton
V. Hughes (68 L. J. Ch., at pp. 285 et seq.;
[1899] 1 Ch., at p. 790). Scarpetta v. Lowen-
feld, 27 T. L. R. 509— A. T. Lawrence, J.
Exclusion of Evidence in Foreign Court —
Whether Contrary to Natural Justice.] —
Where a foreign judgment has been pro-
nounced by a Court of competent jurisdiction,
and the parties have been duly summoned and
have had a hearing or an opportunity of being
heard, an English Court will not refuse to
enforce it as being contrary to natural justice
merely because the foreign Court has excluded
evidence tendered to shew that the written
contract in respect of which the action was
brought was induced by fraudulent verbal mis-
representation. Robinson v. Fenner, 83 L. J.
K.B. 81 ; [1913] 3 K.B. 835 ; 106 L. T. 542—
Channell, J.
Divorce Suit in India — Award of Damages
against Co-respondent — Co-respondent not
Resident in India where Suit Commenced or
Pending — Action against Co-respondent on
Indian Decree.] — The English Courts will
recognise and enforce the judgments as to
status of the Indian Courts in matters within
their jurisdiction, and will also recognise and
enforce the ancillary orders as to damages such
as they themselves make in similar cases.
Phillips V. Batho, 82 L. J. K.B. 882; [1913]
3 K.B. 25 : 109 L. T. 315 ; 29 T. L. R. 600—
Scrutton, J.
The plaintiff, who was domiciled in British
India, obtained in the Bengal High Court a
divorce from his wife on the ground of her
adultery with the defendant, and an award of
damages against the defendant, who was joined
in the suit as co-respondent. The defendant,
who was a British subject domiciled in Eng-
land, had resided in India, but had left and
returned to England before the divorce pro-
ceedings were commenced. He was served by
registered post in England, but did not appear
in the divorce proceedings. In an action
against the defendant to recover the damages
awarded against him in the divorce suit, —
Held, that the plaintiff was entitled to recover,
as the decree against the defendant in India,
being ancillary to the decree of divorce, which
was a judgment in rem, was enforceable in
this country. 7b.
Judgment of Colonial Court — Defendant
Native of Colony — Judgment Recovered in
745
INTEENATIONAL LAW— INTERPLEADER.
740
Defendant's Absence — Enforceability in
English Court.] — The defendant was born in
Victoria and lived at Melbourne for twenty-six
years until 1890, when he came to reside in
England. Since then he had lived chiefly in
London, but had visited Victoria during certain
periods down to 1906. The plaintiffs issued a
writ against the defendant in the Supreme
Court of Victoria to recover a sum of money
alleged to be due from him on accounts stated.
The writ was served upon the defendant in
London, but he did not appear to it, and the
plaintiffs signed judgment against him in the
Supreme Court of Victoria. They subsequently
brought an action against him in this country
upon the judgment so recovered. The defen-
dant pleaded that the Supreme Court of
Victoria had no jurisdiction over him or the
alleged cause of action : — Held, that the
defendant was not under the circumstances
domiciled in Victoria, and that the fact that
he was born there did not constitute him a
subject of the colony so as to make the judg-
ment binding upon him in an English Court.
Gibson (f Co. v. Gibson. 82 L. J. K.B. 1315;
ri913] 3 K.B. 379 ; 109 L. T. 445 ; 29 T. L. E.
665— Atkin. J.
Appearance of Defendant in Foreign Court
Voluntary Appearance — Enforceability of
Judgment in English Court. l — Proceedings
were commenced by the plaintiff, who carried
on business in Paris, in the Tribunal de
Commerce de la Seine against the defendants,
who were merchants in London, claiming
damages for breach of contract. Notification
of the proceedings was sent to the defendants.
but they declined to take up the documents.
Judgment by default was afterwards given by
the Tribunal de Commerce, and notification
was given to the defendants, who, however,
took no steps in regard to it. The plaintiff
thereupon obtained a saisie-arret, which is
analogous to a garnishee order, attaching a
small sum of money standing to the credit of
the defendants at the Credit Lyonnais. On
being informed of this, the defendants entered
an " opposition " in the Tribunal de Com-
merce asking to have the judgment by default
set aside. The Tribunal de Commerce re-
heard the case, and gave judgment for the
defendants. The plaintiff appealed, and the
Court of Appeal in Paris reversed the judgment
given for the defendants, and restored the
judgment by default in favour of the plaintiff.
In an action by the plaintiff upon the judg-
ment of the Court of Appeal, — Held, that the
judgment was enforceable against the defen-
dants, as their appearance in the French pro-
ceedings must, under the circumstances, be
taken to have been a voluntary one. Held,
further, that the judgment sued upon was not
a judgment by default, inasmuch as it derived
its whole force and validity not from the
original decision of the Tribimal de Commerce,
but from that of the Court of Appeal. Guiard
V. De Clermont. 83 L. J. K.B. 1407; [1914]
3 K.B. 145; 111 L. T. 293; 30 T. L. R. 511—
A. T. Lawrence, J.
Conditional Appearance — Voluntary Ap-
pearance— Submission to Jurisdiction.] — The
plaintiff, wlui was a domiciled Manxman,
brought an action of criminal conversation in
the High Court of the Isle of Man against the
defendant, who was a domiciled Englishman
residing in England. The action was com-
menced in accordance with the practice of the
Manx Court by the filing of a statement of
claim, and subsequently the plaintiff obtained
leave to issue a writ for service out of the
jurisdiction, and such writ was issued and duly
served on the defendant in England. On the
day on which the defendant was required by
the writ to appear his advocate appeared in
Court conditionally to set aside the writ, and
an entry was made in the Court book to the
effect that the defendant was to file a motion
to set aside the writ, and on a later day a
motion was accordingly filed by the defendant
to set aside the writ on various grounds, and
this motion was dismissed by the Court after
hearing argument on both sides. The defen-
dant taking no further part in the proceedings
in the Manx Court, the plaintiff obtained inter-
locutory judgment in default and, after the
damages had been assessed, final judgment
for the amount so found and costs. In an
action to enforce such judgment, — Held, that
the defendant had so acted that he must be
taken to have submitted to the jurisdiction of
the Manx Court, and that the plaintiff was
therefore entitled to enforce his judgment in
this countrv. Harris v. Taylor, 84 L. J. K.B.
1839; [1915] 2 K.B. 580; 113 L. T. 221— C.A.
VII. FOEEIGN AWAED.
Enforcement of.] — An award in a foreign
arbitration is not a decision which the Court
here ought to recognise as a foreign judgment,
and therefore cannot be enforced. Merrifield
V. Liverpool Cotton Association, 105 L. T. 97;
55 S. J. 581— Eve, J.
VIII. PEIZE COUET.— See War.
INTERPLEADER.
See also Vol. VIII. 347, 1723.
Judgment by Consent — Subsequent Applica-
tion for Interpleader Issue.] — The right to
commence interpleader proceedings under
Order LVII. is not without restriction as to
the time within which such proceedings must
be commenced. An applicant will not be
allowed to commence such proceedings after
judgment has actually been given against him,
and a fortiori if the judgment has been given
by his own consent. Stevenson v. Brownell,
81 L. J. Ch. 694 ; [1912] 2 Ch. 344 ; 106 L. T.
994; 56 S. J. 571— C.A.
Right to Relief — Adverse Claims — Fire
Insurance Company — Policy in Names of
Lessor and Lessee — Notice by Lessor to
Company to Lay out Insurance Money in Re-
instatement— Claim by Lessee to Payment of
Insurance Money — Insurance Company.] — In
74,
INTERPLEADER— IXTOXTCATIXG LIQUORS.
748
pursuaoec of a lessee's covenant to insure
against fire a policy of insurance on the
demised preriiises was effected in the names of
the lessors and the lessee. A fire having
occurred, the insurance money was adjusted
at a certain sum. The lessors served notice
on the insurance company under section 83 of
the Pircs Prevention (Metropolis) Act, 1774,
requesting them to cause the insurance money
to be laid out in rebuilding and reinstating
the premises. The lessee began to do the work
of rebuilding and reinstating himself, and
informed the company that he would not ask
for payment of the insurance money until the
work was completed. The insurance company
having taken out a summons for an order
calling upon the lessee and the lessors to
appear and maintain their respective claims,
— Held, that the insurance company were not
entitled to an interpleader order — per Vaughan
Williams, L.J., because there were not "two
or more parties making adverse claims
within the meaning of Order LVII. rule 1 fa),
the lessee not having made any claim at all ;
per Buckley, L.J., and Kennedy, L.J.,
because, assuming that the lessee had made
any claim at all, the lessors and the lessee
were not " making adverse claims " with
regard to any " debt, money, goods or
chattels." but were making inconsistent claims
as to the nature of the obligation owed by the
companv. Sun lyi^urance Office v. Galinsky,
83 L. "j. K.B. 633; [1914] 2 K.B. 545;
110 L. T. 358— C.A.
Claim to Proceeds of Goods Taken in
Execution and Sold — Claim by Assignee of
Execution Creditor — Assignment of Debts
Owing or to Become Owing — Absence of Title
to Goods Themselves.] — A claimant in an
interpleader summons issued under section 157
of the County Courts Act, 1888, to the pro-
ceeds of goods taken in execution and sold
under the provisions of section 156 of the Act,
must, in order to succeed, shew that he had a
good title to the goods themselves. Therefore,
where the claimant is the assignee of all the
book and other debts of the execution creditor,
and his real object is to enforce under the
assignment his right to the particular judgment
debt, a summons under section 157 is not his
appropriate remedy. Plant V. Collins, 82 L. J.
K.B. 467: [1913] 1 K.B. 242; 108 L. T. 177;
29 T. L. E. 129— C.A.
Judgment of Divisional Court (Ridley, J.,
and Lush, J.) (81 L. J. K.B. 868; [1912]
2 K.B. 459) affirmed. lb.
Proof of Part Ownership as Partner —
Right to Succeed. 1 — (jn an interpleader issue
in the County Court the question is whether
the goods taken in execution are those of the
claimant as against the execution creditors.
The claimant gave notice that the goods were
his. At the trial of the issue the jury found
that they were not, but were the property of
a partnership in which he and the execution
debtor were the partners : — Held, that as
between him and the execution creditors the
issue should be determined in his favour.
Welln V. Hughes (76 L. J. K.B. 1125; [1907]
2 K.B. 845) distinguished. Flude, Lint. v.
Goldberg, 84 L. J. K.B. 511; [1915] 2 K.B.
157 ; 59 S. J. 333— D. Reversed 59 S. J. 691
—C.A.
Appeal — Trial of Issue by Master — Order
Determining Rights of Parties — Right of
Appeal.] — Where an interpleader issue has,
under Order LVII. rule 7, been ordered to be
tried before a Master, and the Master makes
an order which, in addition to determining the
issue, finally disposes of the whole matter of
the proceedings, an appeal will lie to a
Divisional Court from so much of the crder as
determines the issue. Cox v. Bowen, 80 L. J.
K.B. 1149; [1911] 2 K.B. 611; 105 L. T. 141;
55 S. J. 581— D.
INTESTACY.
Indictment for Murder of Intestate Brother
and Father — Found Guilty of Murder of
Brother, but Insane — Indictment for Murder
of Father not Proceeded with — Right to
Share in Father's Estate.] — Where a son kills
his father, and is found insane, he can take
his proper share in his father's estate under his
father's intestacy. Houghton, In re; Hough-
ton V. Houghton, 84 L. J. Ch. 726; [1915]
2 Ch. 173; 113 L. T. 422; 59 S. J. 562;
31 T. L. R. 427— Joyce, J.
Qucere, where the father dies intestate,
whether the Statute of Distributions can be
disregarded, even if the son should not be
found insane. lb.
INTOXICATING LIQUORS.
A. Excise Licence, 749.
B. Licence Duty, 750.
C. Granting of Licences by Justices.
1. Jurisdiction, 753.
2. Original Licence, 15?i.
3. Reneioals.
a. Generally, 755.
b. Referring Renewal to Compensa-
tion Authority, 757.
c. Assessment and Division of Com-
pensation for Non-Renewal, 759.
d. Power of Compensation Authority
to State Case, 761.
4. Transfers, 762.
5. Confirmation, Appeal, and Costs, 762.
D. Compensation Fund, 765.
E. General Rights and Liabilities of
Licenser, 766.
F. Licensed Premises, 767.
G. Offencks.
1. Permitting Gaming, 767.
2. Permitting Drunkenness, 768.
3. Selling during Prohibited Hours, 769.
(49
INTOXICATING LIQUOKS.
750
4. SeUincj at Unlicensed Place, 709.
5. Selling without Licence, 771.
6. Selling Otherivise than by Standard
Measure. 773.
7. Alloiciiig Children to be in Bar of
Licensed Premises, 774.
H. Conviction and Punishment by Justices,
775.
I. Covenants and Agreements Respecting
Licensed Houses. 77fi.
J. Clubs, 778.
K. Offences by other
Holders, 780.
L. Habitual Drunkard, 781.
than Licence-
A. EXCISE LICENCE.
See also Vol. VIIL 397, 1726.
New On-licence — Conditions — Monopoly
Value — Capital Value — Grant of Justices
Licence for Annual Payments — Grant not " in
accordance with" Act.] — By section 14, sub-
section 1 of the Licensing Consolidation Act,
1910, " The licensing justices, on the grant of
a new justices' on-licence, may attach to the
grant of the licence such conditions ... as
they think proper in the interests of the
public; subject as follows: — (a) Such condi-
tions shall in any case be attached as . . . the
justices think best adapted for securing to the
public any monopoly value which is repre-
sented by the ditference between the value
which the premises will bear, in the opinion of
the justices, when licensed, and the value of
the same premises if they were not licensed."
On the grant of a new on-licence the Justices
ordered annual sums representing precentages
of trade takings to be paid as monopoly value
each year. The Excise collector refused to
grant the licence holder an Excise licence : —
Held, that " monopoly value " in section 14
means capital monopoly value, and is a lump
sum to be definitely fixed upon the grant of
the Justices' licence, to be paid as the Justices
may direct; that the Justices' licence had not
therefore been granted " in accordance with "
the Act within section 1, and that the Excise
licence had been rightly refused. Rex v.
Sunderland Customs and Excise Commis-
sioners, 83 L. J. K.B. 555; [1914] 2 K.B.
390; 110 L. T. 527 ; 78 J. P. 185 ; 12 L. G. R.
580; 30 T. L. R. 298— C. A.
Decision of the Divisional Court (83 L. J.
K.B. 51; [1913] 3 K.B. 483) affirmed. 76.
" Beer " — Liquor made of Glucose and Hops
containing 2 per cent, of Proof Spirit.] — The
incorporation by sections 92 and 96, sub-
section 3 of the Finance (1909-10) Act. 1910,
of the laws relating to Excises duties or licences,
together with the provision in the First
Schedule to that Act under the heading
" C. Retailers' Tjicenc^es " as to the " licence
to be taken out annually by a retailer of beer,"
imposes an obligation under the Act on a
person who sells by retail intoxicating liquor
to take out a licence. Where therefore a
person sells by retail such liquor without a
licence he is liable to the penalty provided in
section 50, sub-section 3 of the Finance (1909-
10) Act, 1910. Fairhurst v. Price, 81 L. J.
K.B. 320; [1912] 1 K.B. 404; 106 L. T. 97;
76 J. P. 110; 22 Cox C.C. 660; 28 T. L. R. 132
— D.
The appellant was summoned under the
Finance (1909-10) Act, 1910, for having sold
by retail beer, for the retail sale of which he
was required to take out a licence under that
Act, without having taken out such licence.
The following advertisements were exhibited
in the shop where the liquor was sold : " The
ales and stouts which are offered to the public
on these premises are manufactured at about
the same strength as ordinary ales and stouts,
guaranteed free from chemicals, and to con-
tain no preservatives." " Finlay's ales and
stouts brewed from the best malt and Kent
and Worcester hops." On analysis the liquor
in question had the ordinary gravity of beer
and contained 2 per cent, of proof spirit. It
was manufactured from liquid glucose and
hops, and was fermented with yeast. In
colour and appearance it was exactly like
ordinary beer. The Justices held that the
liquor so sold was " beer " within section 52
of the Finance (1909-10) Act, 1910; that the
clause in that section defining " beer " could
be subdivided ; and that it was necessary to
have an Excise licence for the sale of such
liquor. They accordingly convicted the appel-
lant : — Held, that the Justices had properly
construed the clause in section 52 defining
" beer," and that they were entitled to hold
on the evidence before them that the liquor
sold by the appellant was " beer " within that
section. lb
B. LICENCE DUTY.
Annual Value of Premises — Conclusiveness
of Valuation List as to Annual Value.] — The
valuation list for the time being in force under
the Valuation (Metropolis) Act, 1869, is not
conclusive evidence of the annual value of
licensed premises for the purpose of determining
the amount of the licence duties imposed by
the Finance (1909-10) Act, 1910. Wriggles-
worth V. Regeni, 104 L. T. 593; 75 J. P. 118;
9 L. G. R. 329; 27 T. L. R. 154— Channell. J.
Basis of Calculation — Ejusdem Generis
— " Increased value arising from profits not
derived from the sale of intoxicating liquor."]
— In ascertaining the " annual licence value "
of a licensed house, for the purposes of the
register of annual licence value established
by section 44, sub-section 2 of the Finance
(1909-10) Act, 1910. only the value arising
from the increased profits derived from the
sale of non-intoxicants owing to the fact that
they are sold on licensed premises, and not
all the profits derived from such sales, is to be
excluded from consideration under the last
paragraph of that sub-section. Inland Revenue
Commissioners v. Truman, Hanhury, Buxton
cf Co., 82 L. J. K.B. 1042; [1913] A.C. 650;
751
INTOXICATING LIQUOES.
752
109 L. T. 337; 77 J. P. 397; 57 S. J. 662;
29 T. L. E. 661— H.L. (E.)
The words " other premises " in section 44,
Bub-section 2 of the Act do not refer only to
premises ejusdem generis with " hotels " men-
tioned in the same sub-section. 7b.
Judgment of the Court of Appeal (82 L. J.
K.B. 474; [1912] 3 K.B. 377) reversed on the
first point and affirmed on the second. lb.
Free House — Licensed Premises held under
Lease — " Grantor of the lease " — Claim
against Person Receiving Rent for Proportion
of Increased Duty.] — In section 2 of the
Finance Act, 1912, the words " the grantor
of the lease " mean the person who actually
puts his signature and seal to the lease as
lessor, and do not mean persons who for the
time being are in receipt of the rent of the
licensed premises. The lessee of licensed
premises cannot, therefore, claim the relief in
respect of increased licence duty given by
section 2 of the Finance Act, 1912, from an
assignee of the original grantor. Bodega Co.
V. Read, 84 L. J. Ch. 36; [1914] 2 Ch. 757;
111 L. T. 884; 59 S. J. 58; 31 T. L. R. 17—
C.A.
" Grantor of lease."]— Where the owners of
licensed property contract to grant a lease and
the premises are subsequently conveyed to a
person absolutely as security for money
advanced by him on the faith of the per-
formance of such contract and the lender
afterwards executes a lease in order to give
effect to the contract, he is the " grantor of
the lease " within the meaning of section 2
of the Finance Act. 1912, and the lessee is
entitled under that section to recover from
him so much of anv increase of duty payable
un'ler the Finance '(1909-10) Act, 1910, as is
proportionate to any increased rent payable
in respect of the premises being let as licensed
premises. Bodega Co. v. Martin. 85 L. J.
Ch. 17; [1915] 2 Ch. 385; 60 S. J. 10;
31 T. L. E. 595— C.A.
Liability of Lessor to Pay Proportion of
Increase — " Licensed premises held under
lease."' — Section 2 of the Finance Act, 1912,
which provides that " Where the licensed
premises are held under a lease . . . made
before the passing of the Finance (1909-10)
Act, 1910, . . . the lessee under such lease
. . . shall be entitled. ... to recover . . .
from . . . the grantor of such lease ... so
much of any increase of the duty payable in
respect of the licence under the provisions of
the Finance (1909-10) Act. 1910, as may be
agreed upon as proportionate to any increased
rent or premium payable in respect of the
premises being let as licensed premises,"
applies where the lessee is not himself the
occupier of the premises, but has sub-let them
and is not the holder of the licence. Watney,
Combe, Reid ,(■ Co. v. Berners. 84 L. .J. K.B.
1.561 ; [1915] A.C. 885 ; 113 L. T. 518 ; 79 J. P.
497; 59 S. J. 492; 31 T. L. R. 449— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 1431 ; [1914] 3 K.B. 288) reversed. 7b.
Licensed Premises not being a " tied
house " — Lease — Increased Rent due to
Licence — Proportionate Increase in Duty
Recoverable by Lessee.] — By section 2 of the
Finance Act, 1912, where licensed premises are
held under a lease made before the passing of
the Finance (1909-10) Act, 1910, which does
not contain any covenant on the part of the
lessee to obtain a supply of intoxicating liquor
from the lessor, the lessee shall be entitled to
recover from the lessor so much of any increase
of the licence duty payable under the Act of
1910 as is proportionate to any increased rent
payable in respect of the premises being let as
licensed premises : — Held, that in order to
ascertain whether any, and what, increased
rent is payable in respect of the premises being
let as licensed premises, the question to be
determined is what annual rent a tenant might
be expected to give for the premises as they
stand, but without a licence. It is necessary
to compare the annual rent which could be
obtained for the same premises if let for the
same term without a licence, with the rent
reserved by the lease for the premises licensed.
The comparison should not be made upon the
assumption that the premises are altered so as
to secure the most profitable use of them by a
lessee under a lease for a long term of years.
Proctor T. Tarry, 84 L. J. K.B. 1096; [1915]
2 K.B. 242; 112 L. T. 1006; 79 J. P. 321;
31 T. L. E. 262— C.A.
Decision of the Divisional Court (83 L. J.
K.B. 1073; [1914] 2 K.B. 178) affirmed. 7b.
Increased Licence Duty — Lease Made before
Finance (1909-10) Act, 1910 — Liability of
Lessor to Contribute — Sums Spent in Rebuild-
ing by Lessor Pursuant to Agreement for Lease
— Surrender Yalue of Unexpired Lease —
"Premium,"] — Where, in pursuance of an
agreement for a lease of licensed premises, a
lessee has expended a sum of money in erect-
ing new buildings on the premises, and has
also surrendered a prior unexpired lease of the
premises, and a new lease has been made
before the passing of the Finance (1909-10) Act,
1910, neither the sum so expended nor the
surrender value of the old lease is a " rent or
premium " within the meaning of section 2 of
the Finance Act, 1912, and the lessor is not
therefore under any liability, in respect of
either amount, to bear a proportion of any
increase of duty payable in respect of the
licence under the Finance (1909-10) Act, 1910.
King v. Cadogan (Earl). 84 L. J. K.B. 2069;
[19i5] 3 K.B. 485: 59 S. J. 680— C.A.
Decision of the Divisional Court (84 L. J.
K.B. 779; [1915] 1 K.B. 821) affirmed. 7b.
Proportion Payable by Grantor of Lease —
Issue as to Liability of Grantor to Pay —
Jurisdiction of County Court.] — Under
section 2 of the Finance Act, 1912, when the
issue is raised as to the liability of the grantor
of a lease to pay any proportion of the increase
of licence duty, and is not merely as to the
amount payable, the County Court has no
jurisdiction to determine this issue, and the
grantor is entitled to a writ of prohibition to
the Judge from proceeding therein. Tratt v.
Good, 84 L. J. K.B. 1550; [1915] 3 K.B. 69;
113 L. T. 556; 79 J. P. 413; 31 T. L. R. 441
— D.
753
INTOXICATING LIQUORS.
754
C. GRANTING OF LICENCES BY
JUSTICES.
1. Jurisdiction.
See also Vol. VIII. 1728.
Appointment of Date for Annual Licensing
Meeting.] — It is not ultra vires for a borough
licensing committee appointed in 1911 to fix
the date of the general annual licensing meet-
ing for 1912. London and North-Western
Railway v. Beesly, 77 J. P. 21— D.
Alteration in Premises without Consent of
Justices — Exits — Premises Ill-conducted or
Structurally Unsuitable.] — In 1896 licensed
premises included two buildings, a hotel and a
restaurant, and, with the consent of the
licensing Justices, in 1903 part of the ground
was excluded from the licensed area and
various structures, including a theatre, were
erected on the excluded portion. At the
beginning of 1910 the construction of a stage
door communicating between the theatre and
the licensed area was commenced without the
knowledge or consent of the licensing Justices,
but there was no evidence that this door had
been used. In June, 1909, application was
made to the licensing Justices to exclude from
thi' licensed area a further portion of the
ground originally included therein, known as
the kitchen garden, for the purpose of erecting
a skating rink thereon. This application was
refused by the Justices, but, notwithstanding
such refusal, the appellant or certain lessees
of the owners of the premises proceeded to
build upon this portion of ground a skating
rink. No intoxicating liquors have been sold
or consumed thereon. Four exits from the
skating rink into portions of the licensed area
and a main entrance from a public street called
P. Avenue to the skating rink were made with-
out the knowledge and consent of the licensing
Justices. There was no evidence that the
exits had been used. The appellant or the
owners of the premises, also without the per-
mission and without the knowledge of the
licensing Justices, leased with an option of
purchase a portion of the ground forming part
of the area originally included in the licensed
area. The Justices at quarter sessions held
that the matters set out made the premises ill-
conducted within the meaning of section 1 of
the Licensing Act, 1904. They also further
held that, by reason of the hereinbefore men-
tioned alterations, the premises were not
structurally suitable : and that the Justices
of the licensing district had rightly refused
the renewal of the licence : — Held, that there
was evidence to support the finding of the
Justices. Marshall v. Spicer, 103 L. T. 902;
75 J. P. 138-D.
2. Original Licence.
See aho Vol. VIII. 410. 1730.
Off-licence — Power to Attach Condition to
Grant — Power to Demand Undertaking as
Condition Precedent to Grant. — Licensing
Justices h;ivc no pdwer to grant a licence for
the sale of into.xicating liquor off the premises
with a condition attached thereto ; but they
may demand from an applicant for the grant
of such a licence, as a condition precedent to
the grant, an undertaking as to matters
relevant to the question whether the licence
shall be granted or refused, although by such
undertaking the licensee undertakes not to
exercise some of the legal rights which the
licence, when granted, will confer on him.
Rex V. Birmingham Licensing Justices;
Hodson Ex parte, 82 L. J. K.B. 23; [1912]
3 K.B. 583; 77 J. P. 19; 29 T. L. R. 9— D.
New On-licence — Conditions — Monopoly
Value — Capital Value — Grant of Justices'
Licence for Annual Payments — Grant not " in
accordance with " Act — Refusal of Excise
Licence.] — By section 14, sub-section 1 of the
Licensing Consolidation Act, 1910, " The
licensing justices, on the grant of a new
justices' on-licence, may attach to the grant of
the licence such conditions ... as they think
proper in the interests of the public ; subject as
follows : — (a) Such conditions shall in any
case be attached as . . . the justices think
best adapted for securing to the public any
monopoly value which is represented by the
difference between the value which the
premises will bear, in the opinion of the
justices, when licensed, and the value of the
same premises if they were not licensed." On
the grant of a new on-licence the Justices
ordered annual sums representing percentages
of trade takings to be paid as monopoly value
each year. The Excise collector refused to
grant the licence holder an Excise licence : —
Held, that " monopoly value " in section 14
means capital monopoly value, and is a lump
sum to be definitely fixed upon the grant of
the Justices" licence, to be paid as the Justices
may direct; that the Justices' licence had not
therefore been granted " in accordance with "
the Act within section 1, and that the Excise
licence had been rightly refused. Rex v.
Sunderland Customs and Excise Commis-
si07iers, 83 L. J. K.B. 555 ; [1914] 2 K.B. 390;
110 L. T. 527 ; 78 J. P. 185 ; 12 L. G. R. 580 ;
30 T. L. R. 298— C.A.
Decision of the Divisional Court (83 L. J.
K.B. 51; [1913] 3 K.B. 483) affirmed. 76.
Beerhouse Licence Granted before 1904 —
Grant of Licence to Sell Spirits — Full
Licence. 1 — Where the holder of a beerhouse
licence granted prior to 1904 applies to the
Justices for a licence to sell spirits, the Jus-
tices, if they grant the licence, are not entitled
to grant one purporting to authorise him to
sell spirits only, but must grant a full pub-
lican's licence. Customs and Excise Commis-
sioners V. Curtis. 83 L. J. K.B. 931; [1914]
2 K.B. 335; 110 L. T. 584; 78 J. P. 173;
30 T. L. R. 232— D.
Monopoly Value.] — The monopoly value
which the holder of a beerhouse licence must
pay on the grant of a new publican's licence,
under section 14 of the Licensing (Consolida-
tion) Act, 1910, is not merely the difference
between the value of the premises with the new
full licence and their value with the beerhouse
licence, but the difference between the value of
the premises when licensed with the new full
/OO
INTOXICATING LIQUOES.
756
licence and the value they would bear if not
licensed at all. lb.
Similar Licence already in Force — Mono-
poly Yalue — Reduction of." — Section 12, sub-
section 1 of the Licensing (Consolidation) Act,
1910, provides that " for the purposes of this
Act a new Justices' licence is a Justices' licence
granted at a general annual licensing meeting
otherwise than by way of renewal or transfer
as defined by this Act." By section 16, sub-
section 1, " the renewal of a Justices' licence
means the grant of a Justices" licence at a
general annual licensing meeting by way of
renewal of a similar licence which is in force
in respect of the premises at the date of the
application " : — Held, upon the above sections,
that the words " a similar licence " in
section 16 mean a licence to sell the same
kind of intoxicating liquors as are being sold
at premises already licensed, and that where
a particular class of licence is in force the
Justices have no jurisdiction to grant what
purports to be a new licence of the same kind
in respect of the same premises with the
object of making an alteration of the monopoly
values subject to which the existing licence
was granted. Rex v. Taylor. Rex v. Ameyidt
(No. 2). 84 L. J. K.B. 1489: [1915] 2 K.B.
593 ; 113 L. T. 167 : 79 J. P. 382 ; 31 T. L. R.
317— D.
3. Renewals.
See also Vol. VIII. 417. 1733.
a. Generally.
Old On-licence — Premises of Insufficient
Yalue — "Disqualified premises" — Refusal to
Renew — Mandamus.; — Premises which by
reason of insufficient annual value are not,
under the provisions of section 37, sub-section 1
of the Licensing (Consolidation) Act, 1910,
qualified to receive a Justices' on-licence for
the sale of intoxicating liquor are " disquali-
fied premises " within the meaning of sec-
tions 34 and 36, so as to make an on-licence
granted in respect of them void ; and the
Court will not in such a case grant a mandamus
to Justices to hear and determine an applica-
tion for the renewal of the licence. Rex v.
Hull Licen.<<ing Justices; Glossop d Bulay,
Lim., Ex parte, 82 L. J. K.B. 946; [1913]
3 K.B. 425; 109 L. T. 184; 77 J. P. 303;
29 T. L. R. 500— D.
Appeal to Quarter Sessions — No Application
by Appellant to Licensing Justices — Jurisdic-
tion of Quarter Sessions to Grant Renewal to
Appellant. — L., the licence holder of an old
on-licence other than an old beerhouse licence,
agreed to transfer it to P. The latter "s appli-
cation to the Justices for the transfer to him
was adjourned to the general annual licensing
meeting. At that meeting P. also applied for
a renewal of the licence to himself. Notice of
opposition to a renewal to them had been
served on both L. and P., as to the former
alleging grounds none of which were personal
to him. At the general annual licensing meet-
ing the Justices refused P.'s application for a
transfer and also that for a renewal on the
ground iiriter alia] that the house was ill-
conducted. No application in form was made
by L. for a renewal to himself ; but the
Divisional Court held that the Justices' refusal
to P. on the above ground amounted to a
refusal to renew to anybody. L., P., and the
brewers, the owners, appealed to quarter
sessions, who found that there was no evidence
that the house was ill-conducted, but that the
Justices were right in refusing to grant a re-
newal to P. ; and they then granted a renewal
to L. On an appeal by the opponents of the
renewal of the licence, — Held, that quarter
sessions had jurisdiction to grant the renewal
to L. under the powers conferred on them by
section 29, sub-section 4 of the Licensing
(Consolidation) Act, 1910, which provides that
on an appeal they can grant the renewal of a
licence in the same manner as the licensing
Justices. Parkes v. Dudley Justices, 82 L. J.
K.B. 337; [1913] 1 K.B. 1; 107 L. T. 855;
77 J. P. 51 ; 29 T. L. R. 31— D.
Two Convictions on Same Day — " Second
offence " — Forfeiture of Licence.] — Two
informations were preferred against the appli-
cant, who was the holder of an off-licence for
the sale of beer, under section 3 of the
Licensing Act, 1872, for having sold beer at
places where he was not authorised by his
licence to sell the same, and for having at the
same time and places exposed beer for sale.
The two cases were heard together, and the
applicant was convicted and fined upon each
information. At the next general annual
licensing meeting the applicant applied for a
renewal of his licence, but the licensing Jus-
tices refused the application on the ground
that the applicant had been convicted of a
" second offence " under section 3, and that
therefore his licence had become forfeited : —
Held, that a " second offence " under the
section meant an offence committed after a
conviction for a previous offence, and that the
decision of the Justices was therefore wrong.
Rex V. South Shields Licensing Justices,
80 L. J. K.B. 809 ; [1911] 2 K.B. 1 ; 105 L. T.
41; 75 J. P. 299: 22 Cox C.C. 431; 55 S. J.
386 ; 27 T. L. R. 330— D.
Annual Meeting of Licensing Justices —
"Court in law or recognised by law" —
Application for Renewal of Licence — Notice of
Objection — Defamatory Statement.] — The
rule of law that defamatory statements made
in the course of proceedings before a Court of
justice or a Court having similar attributes are
absolutely privileged does not apply in the
case of licensing Justices when dealing with
an objection to the renewal of an old on-licence.
They are not in such case a " Court in law or
a Court recognised by law " within the mean-
ing of the rule. Atticood v. Chapman, 83 L. J.
K.B. 1666 : [1914] 3 K.B. 275 ; 111 L. T. 726 ;
79 J. P. 65; .30 T. L. R. 596— Avory, J.
The plaintiff was the holder of an old on-
licence of an inn, and applied for the renewal
thereof at the general annual meeting of the
licensing Justices. The defendant, a book-
maker, gave written notice of his intention to
oppose the application, and alleged various
grounds of objection to the effect that the
plaintiff was not a fit and proper person to
757
INTOXICATING LIQUORS.
758
hold the licence. He served copies of this
notice on the plaintiff, on the clerk to the
licensing Justices, on the superintendent of
police, and on a firm of brewers, owners of
the inn. The plaintiff brought an action
claiming damages for libel in respect of the
statements contained in the notice, and the
defendant pleaded that he was taking a neces-
sary and proper step in a judicial proceeding
in serving the notices, and that the publica-
tion thereof was absolutely privileged : —
Held, first, that the licensing Justices were
not a Court of law to which the privilege
attached; secondly, that, assuming they were,
the defendant, as objector, being neither a
party nor a witness in the proceedings, was
not a person on whose behalf the privilege
could be claimed; and thirdly, that, assuming
the defendant was such a person, the privi-
lege did not extend to the notices served on
the superintendent of police and on the
brewers. lb.
Dictum of Lord Halsbury, L.C., in Boulter
V. Kent Justices (66 L. J. Q.B. 787, 789;
[1897] A.C. 556, 561), and adopted by the
Court of Appeal in Rex v. Howard (71 L. J.
K.B. 754; [1902] 2 K.B. 363), followed. 76.
b. Referring Renewal to Compensation
Authority.
Evidence of Comparison with other Licensed
Premises — Power of Justices to Close House.]
— Where the renewal of an old on-licence is
referred by the licensing Justices to the com-
pensation authority, and the compensation
authority have evidence before them as to the
number of the licensed houses in the district,
the character and population of the locality,
and the respective situations and accommoda-
tion of the various licensed houses in the
district, they are entitled, in the exercise of
their honest judgment upon such evidence, to
hold that the particular licence referred to
them is redundant and to refuse the renewal
of such licence, notwithstanding that that
particular house, on the evidence, compares
favourably with other houses in the district.
Colchester Brewery Co. v. Essex Licensing
Justices, 84 L. J. K.B. 1500; [1915] 3 K.B.
48; 113 L. T. 460; 79 J. P. 428; 31 T. L. R.
439— D.
Award of Compensation — Reference to
Inland Revenue Commissioners — Reference
to County Court — Delay in Payment of Com-
pensation— Refusal of Licensing Justices to
Grant Further Provisional Renewal of
Licence.] — By rule 41 of the Licensing Rules,
1910, it is provided that where, under
section 19 of the Licensing (Consolidation)
Act, 1910, the renewal authority refer the
question of the renewal of a licence to the
compensation authority, the renewal authority
shall grant a provisional renewal of the
licence. Rule 42 provides that if the com-
pensation authority refuse the renewal of a
licence, the renewal of which is provisional,
the licence shall cease to have effect as from
the expiration of the seventh day after the
date fixed for the payment of the compensa-
tion money. Rule 43 provides that when
compensation becomes payable in the case of
a licence provisionally renewed, and it appears
to the renewal authority at the next general
annual licensing meeting after the licence has
been provisionally renewed that the compensa-
tion money has not been paid and is not likely
to be paid before the next 5th day of April,
they shall, on a proper application being made
for the purpose at that meeting, grant a
further provisional renewal of the licence in
accordance with the foregoing rules. The
licensee of a beerhouse applied for the renewal
of his licence to the licensing Justices, who
in February, 1911, referred the question to
the compensation authority, but granted him
a provisional renewal of his licence. In July,
1911, the compensation authority refused the
renewal, subject to the payment of compensa-
tion. In May, 1912, the compensation
authority decided as to the parties entitled to
the compensation money, but the amount of
compensation not being agreed upon by them,
the matter was referred to the Inland Revenue
Commissioners, who in April, 1913, issued
their award, and in May, 1913, referred the
question as to the division of the amount
awarded to the County Court. In January,
1914, the County Court Judge partly deter-
mined the question referred to him, but
adjourned the case to a future date for further
evidence. Meantime the licensing Justices
again provisionally renewed the licence in
February, 1912, and also in February, 1913.
As the compensation money was not likely to
be paid by April 5, 1914, the licensee applied
in February, 1914, to the licensing Justices
for a further provisional renewal of the licence,
but they refused the application, being of
opinion that the parties interested in the com-
pensation money had unreasonably delayed
the proceedings, and that but for the delay
the compensation money would have been
paid earlier and the application rendered
unnecessary. The licensee thereupon obtained
a rule nisi for a mandamus requiring the
licensing Justices to hold a further meeting
for the purpose of hearing and determining
the application for a further provisional
renewal : — Held, that rule 43 of the Licensing
Rules does not limit the power to grant a pro-
visional renewal to one further renewal after
the first grant by the renewal authority, but
empowers the grant of a provisional renewal
as often as may be necessary until the licence
is finally extinguished by payment of the com-
pensation money. Held, also, that the rule
nisi for a mandamus must be made absolute,
on the ground (per Bray, J., and Rowlatt, J.)
that, assuming there had been delay on the
part of the persons interested in the com-
pensation money, such delay did not entitle
the Justices to refuse the grant of a provisional
renewal, and (per Avory. J.) that there was
no evidence that there had been any wilful
delay by those persons. Rex v. Newington
Licensing Justices: Makemson, Ex parte,
83 L. J. K.B. 1367; [1914] 2 K.B. 710;
111 L. T. 72 ; 78 J. P. 271 ; 30 T. L. R. 426
— D.
Qucere, whether misconduct by a licensee
in carrying on his business on the licensed
premises after the question of the renewal of
759
INTOXICATING LIQUORS.
reo
his licence has been referred to the compensa-
tion authority entitles the licensing Justices
to refuse the grant of a further provisional
renewal. lb.
Prohibition to Compensation Authority.] —
Where licensing Justices have referred the
matter of the renewal of an old on-licence to
the compensation authority, together with
their report thereon, under section 19 of the
Licensing (Consolidation) Act, 1910, a writ
of prohibition will not lie to the compensation
authority to prohibit them from considering
the report so made to them, inasmuch as
sub-section 2 of section 19 provides that " the
compensation authority shall consider all
reports so made to them." Rex v. Chester
Licensing Justices: Bennion, Ex parte,
83 L. J. K.B. 12.59; [1914] 3 K.B. 349;
111 L. T. 57.5 : 78 J. P. 447— D.
Evidence by Magistrate Sitting on
Authority.] — A licensing committee referred
a licence to the compensation authority on
the ground that it was redundant. One of
the Justices who sat on the licensing com-
mittee sat on the compensation authority, and
this authority refused the licence, but subse-
quently re-opened the case and heard further
evidence, including that of the magistrate
above referred to, who, however, after the
case had been re-opened, did not adjudicate.
Ultimately the licence was again refused : —
Held, that though there was no authority for
saying that the evidence of the magistrate was
not good legal evidence, he ought not to have
combined the function of sitting on the com-
pensation authority with that of a witness,
but that as there was evidence to support the
decision to refuse the licence the decision must
be affirmed. Mitchell v. Croydon Justices,
111 L. T. 632; 78 J. P. 385;' 30 T. L. E.
526— D.
c. Assessment and Division of Compensation
for Non-renewal.
Assessment by Commissioners of Inland
Revenue — Discretion of Court to Order Com-
missioners to Pay Costs of Appeal.] — The
compensation payable under the Licensing
Act, 1904, in respect of the non-renewal of a
licence came to be determined by the Com-
missioners of Inland Revenue under section 2
of that Act, and tliey fixed the amount. On
appeal to the High Court by the persons
interested, the amount fixed by the Commis-
sioners was substantially increased, the
Commissioners appearing on such appeal to
support their decision in whole. A question
as to the jurisdiction of the Judge to order the
Commissioners to pay the appellant's costs
having arisen, counsel for the Commissioners
at the trial refused, though called upon, to
give any evidence on the matter, or to produce
any documents or reports which they had in
reference to it, or to give the name of the
person who would know what materials were
before the Commissioners, what enquiries
they had made, and what information they
had obtained. The Judge being of opinion
that the Commissioners in refusing to give this
information had acted unreasonably, and that
their conduct had led to the appeal, ordered
them to pay the costs of the appeal : — Held,
that there were proper materials before the
Judge upon which in the exercise of his discre-
tion he could hold that the Commissioners
had acted unreasonably in reference to the
appeal and could order them to pay the appel-
lant's costs, and that being so the Court
could not interfere with or review his decision.
Hardy's Crown Brewery, In re {No. 2),
103 L. T. 520; 75 J. P. 1; 55 S. J. 11;
27 T. L. E. 25— C. A.
Compensation Authority — "Persons
aggrieved" — Right of Appeal.^ — Where the
Inland Revenue Commissioners fix the amount
of compensation payable upon a refusal to
renew an old on-licence under section 20,
sub-section 2 of the Licensing (Consolidation)
Act, 1910, the compensation authority are not
" persons aggrieved " by the decision of the
Commissioners within the meaning of sec-
tion 10, sub-section 1 of the Finance Act,
1894, and have, therefore, no right of appeal
from their determination. Liverpool Com-
pensation Authority v. Inland Revenue
Commissioners, 82 L. J. K.B. 349; [1913]
1 K.B. 165; 108 L. T. 68; 29 T. L. E. 169—
Horridge, J.
Costs Incurred by Compensation Authority
in Performance of Duties — Compensation
Authority Supporting Validity of their
Decision for Non-renewal of Licence.] — An
application for the renewal of a licence was
referred by licensing Justices to the compensa-
tion authority, and when the matter came
before that authority the renewal was refused
subject to the payment of compensation.
Thereafter, certain facts came to the know-
ledge of the applicant which caused him to
apply for a mandamus to question the decision
of the compensation authority on the ground
that there was a probability of bias on the
part of one of the members. A rule nisi for
a mandamus was refused by the Divisional
Court, but granted by the Court of Appeal.
On the return to the rule the compensation
authority appeared by counsel and shewed
cause against the rule, which, however, was
made absolute. The compensation authority
thereafter passed a resolution that the costs
incurred by them in shewing cause against
the rule should be paid out of the compensation
fund, and this was accordingly done. In an
action to have it declared that such payment
was illegal, and to have the amount so paid
repaid to the compensation fund, — Held, that
the action failed, as the costs were incurred
in good faith and reasonably, and in the exer-
cise by the compensation authority of their
duties within section 21, sub-section 5 of the
Licensing (Consolidation) Act, 1910. Att.-
Gen. V. Thomson, 82 L. J. K.B. 673; [1913]
3 K.B. 198; 109 L. T. 234; 77 J. P. 287;
29 T. L. R. 510-Scrutton, J.
Apportionment among Persons Interested
— Alleged Erroneous Apportionment —
Mandamus.^ — Where a compensation autho-
rity has heard and determined an applica-
tion for the apportionment of compensation
money among the various parties interested,
761
INTOXICATING LIQUOKS.
762
mandamus will only lie if the compensation
authority have considered matters outside the
ambit of their jurisdiction. Rex v. M onmouih-
shire Justices; Neville, Ex parte, 109 L. T.
788; 78 J. P. 9; 30 T. L. K. 26— C. A.
Where a compensation authority has heard
and determined an application for the appor-
tionment of compensation money among the
various parties interested, mandamus will not
lie directing them to hear the matter again
merely because they may have come to an
erroneous decision on the questions of law and
fact submitted to them. Rex v. Cheshire
Justices; Heaver, Ex parte, 108 L. T. 374;
77 J. P. 33; 29 T. L. E. 2a— D.
" Persons interested in the licensed
premises " — Tenant for Life and Remainder-
man— Capital Money.] — The tenant for life of a
freehold public house forming part of a settled
estate received the sum of 450L, which was
paid to her as lessor in respect of the extinc-
tion of the licence under the Licensing Act,
1904. Subsequently she died : — Held, that
she must be taken to have received this sum
as trustee for all the persons interested in the
settled estate. Bladon, In re; Dando v.
Porter, 81 L. J. Ch. 117; [1912] 1 Ch. 45;
105 L. T. 729; 28 T. L. R. 57— C. A.
Per Fletcher Moulton, L.J. : Quarter
sessions ought to have apportioned the sum
between the tenant for life and remainderman
at the time when the compensation was
granted. 7b.
Lord of Manor.] — The appellants were
the lords of the manor of H., and the free-
hold of all the copyhold lands within the
manor was vested in them. They were also
entitled to all the manorial rights. The
appellants and the respondents were entered
as the registered owners of certain licensed
premises within the manor in the register of
licences kept pursuant to section 36 of the
Licensing Act, 1872. The compensation
authority having refused the renewal of the
licence of the premises subject to compensa-
tion,— Held, that the appellants were owners
of the licensed premises, and were therefore
" persons interested " therein within the
meaning of section 2, sub-section 1 of the
Act of 1904, and that they were accordingly
entitled to a share of the compensation
money. Ecclesiastical Commissioners v.
Page, 80 L. J. K.B. 1346; [1911] 2 K.B.
946; 105 L. T. 827; 75 J. P. 548— D.
Devise of Licensed Premises — Bequest of
Business — Right of Legatee of Business to
Participate.] — Where the owner of licensed
premises devises them to A, and bequeaths
the business there carried on to B, and the
business is discontinued before compensation
is awarded for non-renewal of the licence, B
has no claim to participate in the compensa-
tion. Spurge, In re; Culver v. Collett,
104 L. T. 669; 75 J. P. 410; 55 S. J. 499—
Eve, J.
d. Power of Compensation Authority to
State Case.
A determination by a compensation autho-
rity under section 2, sub-section 2 of the
Licensing Act, 1904, as to the division of
compensation money amongst the persons
interested in licensed premises is a judicial
determination, and the compensation autho-
rity have therefore power to state a Case for
the opinion of the High Court. Ecclesiastical
Commissioners v. Page, 80 L. J. K.B. 1346;
[1911] 2 K.B. 946; 105 L. T. 827; 75 J. P.
548— D.
4. Transfers.
See also Vol. VIII. 429, 1746.
Ante-1869 Beerhouse Licence — Fit and
Proper Person to Hold Licence — Consideration
of Extraneous Matters by Justices — Business
Relations between Tenant and Landlords.] —
On an application for a transfer of an ante-
1869 beerhouse licence the Justices are entitled
to enquire whether the applicant is a fit and
proper person to be the holder of such licence ;
but they cannot take into consideration the
terms of the agreement of tenancy between
the applicant and the brewers from whom the
premises are taken unless such terms neces-
sarily involve that the applicant will be unable
to keep the premises within the prescriptions
of the law. Rex v. Cooke (or Hyde Justices),
81 L. J. K.B. 363; [1912] 1 K.B. 645;
106 L. T. 152; 76 J. P. 117— D.
Refusal — Non-insertion in Agreement of
Tenancy of Provision for Payment of
Increased Licence Duty.] — The mere fact
that an agreement by the landlords to pay the
increased licence duty imposed by the Finance
(1909-10) Act, 1910, has not been inserted in
the agreement of tenancy of the licensed
premises does not justify the licensing Justices
refusing a transfer of an old on-licence. Rex
V. Underwood; Beswick, Ex parte, 76 J. P.
154— D.
Grant Subject to Undertaking.]— In 1896 a
licence holder, who was the owner of the
licensed premises, consented that the licence
should be held subject to an undertaking that
the house should be a free and not a tied
house. The licence holder died in 1907, and
ultimately, in 1914, the house was sold to a
firm of brewers, and they put in a tenant,
who applied for a transfer. The Justices
granted the transfer subject to the above
undertaking : — Held, that since the passing
of the Licensing Act, 1904, since re-enacted
by the Licensing (Consolidation) Act, 1910,
the Justices had no power to insist upon the
undertaking as the licence was an on-licence
which existed before 1904. Rex v. Creive
Licensing Justices; Bricker, Ex parte,
111 L. T. 1074; 79 J. P. 26; 30 T. L. R.
626— D.
5. Confirmation, Appeal, and Costs.
See also Vol. VIII. 436, 1749.
Confirming Authority — Order Declaring
District a "populous place" — Power to
Revise Order — Power of Quarter Sessions to
State Case.l — Sclu'dule 6 of the Licensing
(Consolidation) Act, 1910, provides that
763
INTOXICATING LIQUORS.
764
licensed premises in a populous place in
Wales may remain open until 11 p.m., but in
districts other than a populous place not later
than 10 P.M. By special provision 2 of the
schedule " populous place " means any area
with a population of not less than 1,000. which
by reason of the density of its population the
confirming authority of the county by order
determine to be a populous place. It pro-
vides that an order restrictive of a previous
order shall not be made except on a revision
after the publication of a census, and that as
soon as may be after the publication of each
census the confirming authority of the county
shall, at a meeting to be specially convened
for the purpose, revise orders then in force
within their jurisdiction, and may alter or
cancel any of those orders, or may make such
further orders, if any, as they shall deem
necessary to give effect to the provisions of
the Act. A licensing district in Wales was
some years ago declared to be a " populous
place," and its population had, subsequent to
such declaration, increased, but other adjacent
districts had, owing to the opening of new
collieries therein, increased in population to a
still greater extent. In 1913 the confirming
authority held that it was no longer a " popu-
lous place," and cancelled the previous order.
An appeal from their decision by way of a Case
stated by the confirming authority for the
opinion of the High Court was made, and a
preliminary objectiiontaken thatquarter sessions
had no power to state the same : — Held, that
quarter sessions were not dependent for their
power to state a Case on the Summary Jurisdic-
tion Acts, and, although acting in an administra-
tive capacity, could state the Case submitted.
Rex V. Southampiov Justicex : Cardii, Ex
-parte ilb L. J. K.B. 295: [19061 1 K.B. 446),
followed. Nicholas v. Davies, 83 L. J. K.B.
1137; ri914] 2 K.B. 705: 111 L. T. 56:
78 J. P. 207: 30 T. L. E. 388— D.
Held also, on the merits, that it was open
to the confirming authority to raise the
standard of a " populous place," and that the
Court would not consider whether their reasons
for so doing were or were not adequate. Ih.
Jurisdiction of Quarter Sessions to Grant
Renewal to Person other than Main Applicant
to Justices.] — In October, 1911, an applica-
tion was made to the licensing Justices for a
transfer of a licence from the appellant L. to
the appellant P., which application was
adjourned to the general annual licensing
meeting, 1912, a protection order being granted
to P. till that meeting. In January, 1912,
notice of opposition to a renewal was served
on L. and also on P., and in February. 1912,
the licensing Justices refused P.'s application
for a renewal on the ground that the premises
had been ill-conducted. L. and his solicitor
were present, but made no application. On
appeal by P., L., and the brewers against
the refusal of a renewal to P., quarter sessions
dismissed P.'s appeal, but granted a renewal
to L. : — Held, that quarter sessions had juris-
diction to do so under section 29, sub-section 4
of the Licensing (Consolidation) Act. 1910.
Parkes v. Dudley Justice.'!. 82 L. J. K.B. 337:
ri913] 1 K.B. l': 107 L. T. 855 ; 77 J. P. 51 ;
29 T. L. E. 31— D.
Reneval of Licence Refused — Appeal by
Licensee and Owners of Premises — Death of
Licensee before Hearing of Appeal — Termina-
tion of Licence — Right of Licensee's Repre-
sentative and of Owner to Prosecute Appeal
— "Any person . . . aggrieved."] — The
licensee and the owners of certain licensed
premises appealed to quarter sessions against
the refusal of the licensing Justices to renew
the licence of the house. Before the appeal
was heard the licensee died, and the licence
also came to an end by efiiuxion of time.
Letters of administration were duly granted
to the widow of the deceased licensee, who
continued the appeal. The Court of quarter
sessions dismissed the appeal on the ground
that the licence had become extinct by the
death of the licensee : — Held, that the widow
of the deceased licensee was entitled to main-
tain the appeal, as the licence, for the pur-
pose of enabling the representative of a
deceased licensee to obtain its renewal, must
be regarded as still in existence; and further,
that the owners of the premises could also
appeal against the refusal to renew the licence
as being persons aggrieved by the refusal of
the Justices to renew the licence within the
meaning of section 29 of the Licensing (Con-
solidation) Act, 1910. Cooke v. Bolton
Justices or Cooper, 81 L. J. K.B. 648 : [1912]
2 K.B. 248; 105 L. T. 818; 76 J. P. 67— D.
Objection by Licensing Justices to Hearing
of Appeal — Special Case Stated by Quarter
Sessions — Appeal Allowed and Licensing
Justices Ordered to Pay Costs — Refusal by
Quarter Sessions to make Indemnity Order in
Favour of Licensing Justices — Mandamus.] —
The renewal of a licence having been refused
by licensing Justices, the licensee appealed to
quarter sessions. When the appeal came on
for hearing, counsel for the licensing Justices
objected that, as since the notice of appeal
was given the licensee had died, the licence
had become extinct, and that therefore no
appeal lay from the refusal to renew the
licence, and that the owners had no right of
appeal. Quarter sessions upheld this objec-
tion and dismissed the appeal siibject to a
Special Case stated by them for the opinion
of the King's Bench Division. At the hear-
ing of the Special Case the licensing Justices
did not appear, and the King's Bench Division
reversed the order of quarter sessions, remitted
the Case for re-hearing, and ordered the
licensing Justices to pay the costs of the
appeal to the King's Bench Division. Sub-
sequently the appeal was re-heard and deter-
mined by quarter sessions and dismissed with
costs. An application was then made to
quarter sessions under section 23 of the
Licensing (Consolidation) Act, 1910, for an
order on the treasurer of the borough for
which the licensing Justices acted to pay to
them the costs they had had to pay in the
appeal by Special Case to the King's Bench
Division. Quarter sessions having refused to
make such order, the licensing Justices
obtained a rule nisi for a mandamus requiring
them to do so : — Held, that the licensing
•Justices were entitled under section 32 to the
order asked for, and that the costs of the rale
for the mandamus should be included with the
765
INTOXICATING LIQUORS.
(66
other costs in the order to be made upon the
borough treasurer. Rex v. Salford Hundred
Justices; Bolton Justices, Ex parte, 81 L. J.
K.B. 952; [1912] 2 K.B. 567; 107 L. T. 174;
76 J. P. 395; 23 Cox C.C. 110— D.
D. COMPENSATION FUND.
See also Vol. VIII. 1752.
Old On-licence — Forfeiture Prior to 1910 —
Grant of Licence at Special Sessions —
Renewal Thereof — "Old on-licence renewed."]
— By section 21, sub-section 1 of the Licensing
(Consolidation) Act, 1910, the compensation
authority shall impose charges for the pur-
poses of the compensation fund in respect of
all old on-licences renewed in respect of
premises within their area. By Schedule II.
Part I. an old on-licence is described as one in
force on August 15, 1904, and as including
renewals of such a licence whether it con-
tinues to be held by the same person or is or
may be transferred to another person. In
July, 1907, M., the holder of a licence of a
public house which was in force on August 15,
1904, was convicted of felony, and the licence
thereby became forfeited. In August, 1907,
the owners, under section 15 of the Licensing
Act, 1874, obtained authority for their repre-
sentative, J., to carry on the business until
the next special or transfer sessions. At those
sessions, in September, J., under the above
section 15, obtained a licence to remain in
force until the following April, when M.'s
licence, if not forfeited, would have expired
in the ordinary course. At the general annual
licensing meeting in February, 1909, the
Justices renewed this licence to J., and hence-
forth it was renewed annually to successive
occupiers, including, finally, the suppliant,
the present holder : — Held, that the licence
granted in September to J. was a transfer
to him of the licence forfeited by M., and was
therefore a licence granted to J. by way of
renewal of a licence in force on August 15,
1904, and eventually transferred to the sup-
pliant, within the meaning of Schedule II.
Part I. of the Act of 1910, and was therefore
an " old on-licence renewed " within the
meaning of section 21, sub-section 1 of the
Act, and that, consequently, the suppliant
was liable to pay the charges leviable by the
compensation authority under that sub-section.
Wernham v. Regem. 83 L. J. K.B. 395;
ri914] 1 K.B. 468: 110 L. T. Ill; 78 J. P.
74— Bailhache, J.
Restaurant — Rate of Levy — What Evidence
may be Required.^ — It is in the discretion of
the licensing Justices, when fixing the amount
of the compensation levy on a restaurant, to
require that the figures of the trade done by
the restaurant should be given to them, includ-
ing the gross receipts from the sale of alcohol
and all other goods, and they are not bound
to he satisfied with a statement shewing the
proportion of the receipts for liquor to the gross
receipts. Holhorv and Frascati, Lini.. Ex
parte, 30 T. L. R. 614— D.
Deduction from Rent — Reversionary Lease
to Commence on Determination of Lease —
Interest of Lessee in Premises.] — A brewery
couipany who were by assignment under-
lessees of a licensed house also acquired by
assignment the interest in two reversionary
under-leases which were expressed to be exten-
sions of the under-lease. The terms of years
created by the two reversionary under-leases
were to commence on the expiration of the
under-lease and the first reversionary lease
respectively, the second reversionary lease ex-
piring in 1951. The reversionary under-leases
were expressed to be subject to the like rent
and conditions as were reserved and contained
in the under-lease, and they also contained a
proviso that if the terms granted by the under-
lease and the first reversionary under-lease
respectively should be determined under the
proviso for re-entry, then the reversionary
under-leases should be absolutely void. A
compensation charge was imposed by quarter
sessions in respect of the house under section 3
of the Licensing Act, 1904, sub-section 3 of
which allows such deductions as are set out
in the Second Schedule to be made by a
licence holder who pays the charge, and also
by any person from whose rent a deduction
is made in respect of the payment of such
charge. The scale of deductions in the Second
Schedule varies according to the length of the
" unexpired term " of the person making the
deduction : — Held, that the deduction must be
calculated according to the unexpired term of
the under-lease without taking into account the
length of tlie two reversionary under-leases.
Llangattock (Lord) v. Watney. Combe. Reid
d- Co. (79 L. J. K.B. 559; [1910] A.C. 394)
followed. Knight v. City of London Brewery
Co.. 81 L. J. K.B. 194; [1912] 1 K.B. 10;
106 L. T. 564— A. T. Lawrence, J.
Proportion of Compensation Fund Payable
to New Borough.] — A section of the East-
bourne Corporation Act, 1910, provided that
" within six months after April 1, 1911, the
Court of quarter sessions for the county shall
pay to the Justices acting in and for the
borough out of the compensation fund of the
county established under the Licensing Act,
1904, such proportion of any sum standing to
the credit of that fund on the said day, after
deducting therefrom any sums due in respect
of compensation awarded prior to that day,
as the amount of the charges paid under that
Act during the year ending March 31, 1911,
in respect of premises situate within the area
of the borough may bear to the whole amount
of such charges paid during the same period
in respect of premises within their area : —
Held (Avory, J., dissenting), that the words
" sum standing to the credit of that fund on
the said day " meant the amount which ought
to stand to the credit of the fund on that day,
and therefore it included a sum which should
have been collected by that day, but was in
fact collected subsequently. Rex v. Sussex
Justices ; Langham. Ex parte, 76 J. P. 476 — D.
E. GENERAL RIGHTS AND
LIABILITIES OF LICENSEE.
See also Vol. VIII. 1755.
Licensed Person Abroad.] — Where a
publican is abroad, he ought to have on the
(67
INTOXICATING LIQUOKS.
768
premises a person who for the purposes of his
statutory obligations fully represents him, on
whom, in proceedings for an offence under the
Licensing Act, service of a summons can be
effected. Rex v. Louth Justices, [1914]
2 Ir. R. 54— K.B. D.
F. LICENSED PREMISES.
Business other than Sale of Intoxicating
Liquors Carried on — Structural Separation.] —
A sale of drink consists in the order for the
drink and the delivery of the drink in pur-
suance of the order. Where a publican carries
on upon the licensed premises a business other
than that of the sale of intoxicating liquors,
and that portion of the premises used for the
sale of such liquors is divided from the
portion used for the purposes of such other
business by a separation of such a character
that, notwithstanding its existence, an effective
order for drink can be given by a person in
the latter portion to, and be received by, a
person in the former portion of the premises,
and drink can be supplied in pursuance of
that order, such separation is not a " struc-
tural " separation within section 2 of the
Intoxicating Liquors (Ireland) Act, 1906.
Beirne v. Duffy, [1914] 2 Ir. R. 68— K.B. D.
A separation between the bar of an hotel
and a billiard room (which is not licensed,
but which is owned by the hotel proprietor
and used for the purposes of profit), if it con-
tains a glass portion through which a signal
for drink can be given and received, resulting
in the delivery of the drink ordered, by taking
out the drink from the bar to the billiard
room through a yard, is not a " structural "
separation within the section. 7b.
Alteration in Premises without Consent of
Justices — Premises Ill-conducted or Struc-
turally Unsuitable.] — See Marsliall v. Spicer,
ante, col. 753.
G. OFFENCES.
1. Permitting Gaming.
See also Vol. VIII. 446, 1756.
Betting — Connivance.] — The respondent G.,
the licensee of a public house, was charged with
having unlawfully suffered the house to be used
for the purpose of betting with persons resort-
ing thereto. The magistrate found as a fact
that on the material dates one T. used the bar
of the public house in question for the purpose
of betting with persons resorting thereto ; that
the prosecution had failed to prove that any
one in the house knew as a fact that betting
was being carried on therein ; and that the
respondent G. and his servants had ample
opportunity of seeing and ought to have seen
the passing of the betting slips and otherwise
becoming aware of the betting which vpas going
on, and had ample opportunity of seeing and
ought to have seen enough to bring to their
minds a reasonable suspicion that betting on
horse racing was going on in the house. Upon
these findings the magistrate dismissed the
information : — Held, that the case should be
remitted back to the magistrate with a direc-
tion to consider whether the respondent G. had
connived at betting being carried on. Lee v.
Taylor, 107 L. T. 682 ; 77 J. P. 66 ; 23 Cox C.C.
220; 29 T. L. R. 52— D.
Conviction of Bookmaker for Using Licensed
Premises for Betting — Subsequent Proceedings
against Licensee — Admissibility of Conviction
of Bookmaker.]— On May 4, 1911, a bookmaker
was convicted at petty sessions for having
unlawfully used the bar parlour of the
appellant's licensed premises on April 29, 1911,
for betting with persons resorting thereto.
On May 15, 1911, the appellant was summoned
for having suffered his premises to be so used
for betting on April 29, 1911. At the hearing
of the charge against the appellant he desired
to raise the question whether betting had in
fact taken place on April 29, in addition to
the question whether he had suffered betting
to take place, but the Justices ruled that they
were bound by the conviction of the bookmaker
on May 4 to hold that betting had taken place
on the premises on April 29, and that the
appellant could not, in view of that conviction,
seek to shew that no betting had taken place
on that date. The Justices having convicted
the appellant, — Held, that evidence of the con-
viction of the bookmaker on May 4 was
wrongly admitted and that the conviction of
the appellant must be quashed. Taylor \\
Wilson, 106 L. T. 44 ; 76 J. P. 69 ; 22 Cox C.C.
647; 28 T. L. R. 97— D.
2. Permitting Drunkenness.
See also Vol. VIII. 449, 1756.
Reasonable Steps to Prevent Drunkenness on
Premises.] — While two men, M. and P., were
on the premises of the respondent, a licensed
beerhouse keeper, P. handed to M. a bottle of
whisky, and M. drank some of the contents
without the knowledge or consent of the respon-
dent. Shortly thereafter M. became helplessly
drunk and utterly insensible. The respondent
caused him to be carried into a back room and
laid on a sofa, and provided him with tea in
order to bring him to his senses. Later on
the same evening, while M. was still in a
dazed condition, he was conducted home by
the respondent's daughter. The respondent
being summoned for having permitted drunken-
ness on her licensed premises, the Justices
dismissed the summons, being of opinion that
the respondent had taken all reasonable steps
for preventing drunkenness on the premises :
— Held, that there was evidence upon which
the Justices could so find. Toionsend v.
Arnold, 75 J. P. 423— D.
Two Drinks Ordered — Enquiry by Barman.]
— Where a sober person orders on licensed
premises two drinks at the same time it is a
reasonable step for preventing drunkenness on
the premises within the meaning of section 75
of the Licensing (Consolidation) Act, 1910, for
the barman to ascertain whether the second
drink is intended for consumption by a sober
person. Radford v. Williams, 110 L. T. 195;
78 J. P. 90; 24 Cox C.C. 22; 30 T. L. R. 108
— D.
769
INTOXICATING LIQUORS.
770
3. Selling dxtbing Prohibited Hours.
See also Vol. VIII. 451, 1757.
Beer Ordered and Paid for on Sunday Night
— Purchaser's Bottle Placed in Yard of
Premises — Beer Taken Away by Purchaser on
Monday during Prohibited Hours. j — A man
went to a public house on Sunday about 8 p.m.
and handed the publican a bottle, which he
aslied should be filled with beer and that
night put in the stable yard, so that he could
take it away the next morning before the house
opened. The beer was paid for when it was
ordered. The bottle was filled with beer by
the publican, and placed the same evening in
the stable yard, which was part of the licensed
premises. The purchaser came and took away
the bottle from the stable yard on the Monday
morning during prohibited hours : — Held
(Avory, J., dissenting), that the whole trans-
action of sale was complete during legitimate
hours on the Sunday evening, and that there
was no delivery on the Monday, and that
therefore the Justices were right in dismissing
an information preferred against the publican
under the Licensing (Consolidationj Act, 1910,
s. 61, for keeping open his licensed premises
during prohibited hours. Bristow v. Piper,
84 L. J. K.B. 607; [1915] 1 K.B. 271;
112 L. T. 426; 79 J. P. 177; 59 S. J. 178;
31 T. L. E. 80— D.
" Consumption " of Liquor during Prohibited
Hours — Bona Fide Guests of Licensee.] — By
an order made on February 5, 1915, under
section 1, sub-section 1 of the Intoxicating
Liquor (Temporary Eestriction) Act, 1914, by
the Licensing Justices for the City of Leeds,
it was directed that " thereafter the sale or
consumption of intoxicating liquor on all
premises to which a retail intoxicating liquor
licence is attached shall be suspended between
2.30 P.M. and 6 p.m. on Sunday." At 4 p.m.
on Sunday, February 21, the police entered the
premises of which the respondent was the
licensee (which premises were duly closed
according to law), and found the respondent
and three other men at a table in the bar
with glasses partly full of liquor before them.
The three men were bona fide the guests of
the respondent, and were being entertained by
him at his own expense -.—Held (Eidley, J.,
dubitante), that the consumption of the in-
toxicating liquor on the licensed premises in
these circumstances did not constitute an
offence under the order. Blakey v. Harrison,
84 L. J. K.B. 1886; [19151 8 K.B. 258;
113 L. T. 733; 79 J. P. 454; 31 T. L. E. 503
— D.
" Consumption " of intoxicating liquor under
the Licensing Acts defined. lb.
4. Selling at Unlicensed Place.
See also Vol. VIII. 461, 1760.
Sale by Brewer's Drayman — Liability of
Employer— Aiding and Abetting.]— By the
system in use in connection with the appellants'
brewery business each of their draymen had
a book called an " order and delivery book,"
which he took out each day, in which it was
his duty to enter, when received, orders for
beer, and hand in each evening to the
appellants' clerk at their office. Each evening
the drayman entered on a " load ticket " the
orders for next day's delivery, which would be
handed with the order and delivery book to
the appellants' clerk. From these the loads
for the next day's deliveries were made up,
and it was the duty of a foreman and certain
clerks to see that only a sufficient amount of
beer was loaded to satisfy each day's orders.
One of the appellants' draymen on May 1, 1908,
gave in his order and delivery book, which
contained the names of three persons, W., L.,
and F., the order for each being one crate of
bottled beer. On May 2 the drayman went
out with a horse and van containing crates
and bottled beer of the appellants. None of
the goods bore the name of any customer for
whom the goods were intended, and there was
no appropriation or identifying marks upon
any of the bottles or crates. The drayman
delivered a crate to F., two bottles to one B.,
one bottle to L., and one bottle to W. There
was no entry in the book of a single bottle as
the order of W. and L. The beer delivered
was paid for on delivery and the money was
duly accounted for to the appellants at the
end of the day. Draymen were warned not
to deliver beer unless an order had first been
taken to the licensed premises. The drayman
having been convicted of selling beer without
being duly licensed, the appellants were subse-
quently charged with aiding and abetting him
in committing the offence, and were convicted,
the Justices coming to the conclusion that no
sufficient appropriation of the bottles of beer
had taken place before they left the licensed
premises : — Held, that the conviction was
right. Stansfeld v. Andrews, 100 L. T. 529;
73 J. P. 167 ; 22 Cox C.C. 84; 25 T. L. E. 259
— D.
Two Convictions on Same Day — " Second
offence" — Forfeiture of Licence.] — Two in-
formations were preferred against the appli-
cant, who was the holder of an off-licence
for the sale of beer, under section 3 of the
Licensing Act, 1872, for having sold beer at
places where he was not authorised by his
licence to sell the same, and for having at the
same time and places exposed beer for sale.
The two cases were heard together, and the
applicant was convicted and fined upon each
information. At the next general annual
licensing meeting the applicant applied for a
renewal of his licence, but the licensing Jus-
tices refused the application on the ground
that the applicant had been convicted of a
" second offence " under section 3, and that
therefore his licence had become forfeited : —
Held, that a " second offence " under the
section meant an offence committed after a
conviction for a previous offence, and that
the decision of the Justices was therefore
wrong. Rex v. South Shields Licensing
Justices, 80 L. J. K.B. 809; [1911] 2 K.B. 1;
105 L. T. 41; 75 J. P. 299; 55 S. J. 386;
27 T. L. E. 330-D.
Sale to Members of Club.] — See cases under
sub tit. Clubs, post.
25
771
INTOXICATING LIQUOES.
772
5. Selling without Ijicence.
See also Vol. VIII. 1764. i
"Beer" — Liquor Manufactured from Glucose i
and Hops — Liquor Containing 2 per cent, of |
Proof Spirit.] — The appellant was summoned !
under section 5U, sub-section 3 of the Finance j
(1909-10) Act, 1910, for having sold by retail
beer, for the retail sale of which he was
required to take out a licence under that Act,
without having taken out such licence. On the
premises where the liquor was sold there were
exhibited the following advertisements : " The
ales and stouts which are offered to the public
on these premises are manufactured at about
the same strength as ordinary ales and stouts,
guaranteed free from chemicals, and to con-
tain no preservatives." " Finlay's ales and
stouts brewed from the best malt and Kent
and Worcester hops Ale IJd. per pint, stout
2d. per pint, to be consumed on or off the
premises." On analysis the liquor in question
had the ordinary gravity of beer and con-
tained 2 per cent, of proof spirit. It was
manufactured from liquid glucose and hops,
and was fermented with yeast. In colour and
appearance it was exactly like ordinary beer.
The Justices were of opinion that the liquor
so sold was " beer " within section 52 of the
Finance (1909-10) Act, 1910; that the clause
in that section defining " beer " could be sub-
divided ; and that it was necessary to have
an Excise licence for the sale of such liquor.
They accordingly convicted the appellant : —
Held, that the Justices had properly construed
the clause in section 52 defining " beer," and
that they were entitled to hold on the evi-
dence before them that the liquor sold by the
appellant was " beer " within that section.
Fairhurst v. Price, 81 L. J. K.B. 320; [1912]
1 K.B. 404; 106 L. T. 97; 76 J. P. 110;
22 Cox C.C. 660; 28 T. L. R. 132— D.
Sale by Owners of Licensed Premises by
their Manager — Manager Licensed — Owners
not Licensed.] — The appellants, a firm of
brewers, owners of licensed premises, put a
manager on those premises, who held the
licence, resided therein, personally conducted
the sale of intoxicating liquor thereon, and
was responsible for the management thereof.
The intoxicating liquor on the premises was
the property of the appellants, and they
received the profits derived from their sale : —
Held, that there had not been a sale by the
appellants without a licence of intoxicating
liquor within the meaning of section 65, sub-
section 1 of the Licensing (Consolidation) Act,
1910. Dunning v. Oiven (76 L. J. K.B. 796:
[1907] 2 K.B. 237) and Peckover v. Defnes
(71 J. P. 38) considered. Mellor v. Lydiate,
84 L. J. K.B. 8; [1914] 3 K.B. 1141;
111 L. T. 988; 79 J. P. 68; 24 Cox C.C. 443;
30 T. L. R. 704— D.
Aiding and Abetting.] — The appellant, a
brewer, was in the habit of supplying three of
his private customers, small cottagers, with
beer for their own consumption. Shortly after
war broke out between Great Britain and Ger-
many a brigade of Territorials was quartered
in a building whose principal entrance was
directly opposite the three cottages, and the
supply by the appellant of beer to the cottagers
increased considerably — in one case from two
gallons a week to twenty-five gallons a day.
The appellant was told by his carman that
these customers were selling beer to the
soldiers, when he said that they must not do
it, but that there was nothing to prevent the
soldiers giving the cottagers something for
their trouble in obtaining the beer. This
remark was communicated by the carman to
the cottagers, and the increased supply of beer
continued. The cottagers were charged with,
and pleaded guilty to, selling intoxicating
liquors without a licence to the soldiers, and
the appellant was charged with, and convicted
of, aiding and abetting them : — Held, that
there was evidence before the Justices which
would support such conviction. Cook v.
Stockicell, 84 L. J. K.B. 2187 ; 113 L. T. 426 ;
79 J. P. 394; 31 T. L. R. 426— D.
Passenger Vessel — Six-days Licence Held by
Steward — Sale on Sunday.] — A licence was
taken out in the name of the steward of a
passenger vessel for the sale of liquor on board
which was indorsed with a condition prohibit-
ing the sale of liquor on Sunday. On a
Sunday, when the steward was not on board,
sales of liquor were made by waiters employed
on the vessel. In an action against the owners
for the recovery of penalties under section 50,
sub-section 3 of the Finance (1909-10) Act,
1910, — Held, that the sales were sales without
licence by the owners, and not sales in breach
of his licence by the steward, and accordingly
that the owners were liable in the statutory
penalties. Lard Advocate v. Nicol, [1915]
S. C. 735— Ct. of Sess.
Selling by Retail — Wholesale Licence — Sale
of Wholesale Quantity — Delivery by Retail
Quantities.] — The respondent was not licensed
to sell beer by retail, but held a wholesale beer
dealer's licence under the Act 6 Geo. 4. c. 81,
which empowered him to sell beer in quantities
of not less than four and a half gallons. On
April 8, 1910, one J. B. bought at the licensed
premises eighteen quart bottles of stout. On
the same day J. B. paid to the respondent 6s.,
the price of the eighteen quart bottles of stout,
and the respondent agreed to store and deliver
the bottles as the purchaser from time to time
might require. The respondent gave on April 8
to J. B. a receipt, and in his presence put
aside eighteen quart bottles of stout, which
were placed in a locker under the counter in
the shop together with a billhead bearing
J. B.'s name. From time to time the stout
delivered was taken from the bottles which
had been set aside by the respondent on
April 8, and each delivery was recorded on the
billhead bearing J. B.'s name w'hich had been
placed with the bottles. On May 28, 1910,
the last two of the eighteen bottles paid for by
J. B. on April 8 were delivered at his house in
accordance with an order given by him : —
Held, that there was a complete sale on
April 8, 1910, and that the respondent had not
sold in respect of the last delivery the stout by
retail without a licence, contrary to section 3
of the Licensing Act, 1872. Hales v. Buckley,
104 L. T. 34; 75 J. P. 214— D.
773
TXTOXICATIXG LIQUORS.
774
Recovery of Penalty for each Sale of Liquor
without Licence — Power of Court to Modify
Penalty.] — An action having been brought by
the Commissioners of Inland Revenue against
the owners of a passenger vessel, for which a
six-days licence had been obtained, to recover
penalties under section 50, sub-section 3 of the
Finance (1909-lOj Act, 1910, for sales of liquor
■without a licence, which had taken place on
Sundays. — Held, first, that the Commissioners
were entitled to recover a separate penalty for
every separate sale, even though these sales
were to the same individual on the same day ;
and secondly, that the Court had no power to
modify the penalties. Lord Advocate v. Nicol,
[1915] S. C. 735— Ct. of Sess.
Proof.] — For proof in the Court of
Exchequer of the offence under section 50,
sub-section 3, the evidence of one credible
witness is, under the provisions of section 65
of the Excise Management Act, 1827, suffi-
cient, lb.
Conviction — Non-payment of Fine and no
Sufficient Distress — Term of Imprisonment.]
— Section 65, sub-section 1 of the Licensing
(Consolidation) Act, 1910, prohibits the sale of
any intoxicating liquor by retail except by a
licensed person, and sub-section 2 enacts that
" If any person acts in contravention of this
section, he shall be liable ... in the case of
the first offence to a fine not exceeding fifty
pounds, or to imprisonment with or without
hard labour for a term not exceeding one
month." Section 99, sub-section 1, provides
that, " Except as otherwise expressly provided,
any offence under this Act may be prosecuted,
and every fine or forfeiture may be recovered
and enforced in manner provided by the
Summary Jurisdiction Acts " : — Held, that as
no method of recovering a fine imposed for a
contravention of section 65 of the Licensing
(Consolidation) Act, 1910, is provided by that
Act, the provisions of section 5 of the Summary
Jurisdiction Act, 1879, apply; and therefore,
where a person is convicted under section 65,
and a fine exceeding 20L is imposed, he may,
on non-payment of the fine and in default of
sufficient distress, be sentenced, in accordance
with the scale provided by section 5 of the Act
of 1879, to a term of imprisonment not exceed-
ing three months. Reg. v. Hopkins (62 L. J.
M.C. 57; [1893] 1 Q.B. 621) applied. Rex v.
Leach; Fritchley, Ex parte, 82 L. J. K.B. 897 ;
[1913] 3 K.B. 40 ; 109 L. T. 313 ; 77 J. P. 255 ;
23 Cox C.C. 535 ; 29 T. L. R. 569— D.
6. Selling otherwise than by Standard
Measure.
Sale by Barman — "Person" — "Sells."] —
A barman, employed by the licensee of licensed
premises to sell his intoxicating liquor in the
usual way, without the knowledge of the
licensee sold the licensee's beer to a customer
in a measure not marked according to the
Imperial standards, in accordance with sec-
tion 69, sub-section 1 of the Licensing
(Consolidation) Act, 1910 -.—Held, that the
barmxn was a " person " who " sells " within
the meaning of sub-section 2 of section 69,
and therefore liable to the penalties imposed
thereby for a sale made in the above manner.
Caldwell v. Betliell, 82 L. J. K.B. 101; [1913]
1 K.B. 119; 107 L. T. 685; 77 J. P. 118;
23 Cox C.C. 225; 29 T. L. R. 94— D.
7. Allowing Children to be in Bar of
Licensed Premises.
Bar — Box Partitioned off from Bar.] — In
the corner of the main bar of certain licensed
premises a space about six feet square was
separated therefrom by wooden partitions seven
feet in height, which did not reach the ceiling
The box or apartment so formed had a door to
it, and inside were chairs and a table, liquor
and food being there supplied to customers.
It was not proved to be exclusively or mainly
used for the supply of intoxicating liquor : —
Held, that the box did not form part of the
" bar " of the premises within the meaning of
section 120 of the Children Act, 1908.
Donaghue v. M'Intyre, [1911] S. C. (J.) 61—
Ct. of Just.
" Part of the premises exclusively or mainly
used for the sale and consumption of intoxicat-
ing liquor " — Kitchen Used for Trade Purposes
during Portions of the Day and for Domestic
Purposes during other Portions of Day.] — The
Children Act, 1908, provides in section 120,
sub-section 1, that " The holder of the licence
of any licensed premises shall not allow a
child to be at any time in the bar of the
licensed premises, except during the hours of
closing." The term "bar of licensed pre-
mises " is defined in sub-section 5 as meaning
" any open drinking bar or any part of the
premises exclusively or mainly used for the
sale and consumption of intoxicating liquor."
The kitchen of the appellant's licensed
premises contained the ordinary fittings and
appliances of a kitchen, and was also fitted
up as a drinking room. A child, two years
old, was in the room while its mother was
drinking beer. The Justices found that the
room was extensively used for trade purposes
during certain portions of the day and for
domestic purposes during other portions of
the day, and they convicted the appellant of
an oifence under section 120 of the Children
Act, 1908 -.—Held, that the fact that the room
was used for domestic purposes during cei'tain
portions of the day did not preclude the
Justices from holding that the room was
"mainly used for the sale and consumption of
intoxicating liquor." Pilhington v. Ross,
83 L. J. K.B. 1402; [1914] 3 K.B. 321;
111 L. T. 282: 78 J. P. 319; 12 L. G. R. 944;
24 Cox C.C. 277 ; 30 T. L. R. 510— D.
Liability of Licensee for Act of his Wife.1
— The appellant, wlio was the licensee of a
public house, was charged, under section 120
of the Children Act, 1908, with having unlaw-
fully allowed a child under the age of fourteen
to be in the bar of his licensed premises while
the premises were open. The child in ques-
tion, a girl of ten, had gone to the licensed
premises in the evening with an elder sister
to see the appellant's wife — who was a dress-
maker and carried on business in a room on
the upper floor of the premises — about a dress
she was making for the elder girl. "^Tien the
775
INTOXICATING LIQUOES.
776
two girls entered the licensed premises the
appellant's wife saw them and, without
the appellant's knowledge, invited them to
wait in the bar parlour while she went to her
workroom to bring down the dress, so as to
avoid the necessity of lighting up the work-
room, which was almost in darkness. The
girls went into the bar parlour and waited
there for the dress to be brought. While they
were so waiting there were no customers in
the bar parlour, nor was any intoxicating
liquor sold there during that time. The appel-
lant did not see the two girls enter, nor did
he know they were in the bar parlour until
his attention was called to their presence by
police officers who had entered. The Justices
convicted the appellant, being of opinion that
he was responsible for the action of his wife
and so was guilty of an offence under the Act
in allowing the younger of the two girls to be
on the licensed premises while those premises
were open : — Held, that the conviction must
be quashed, as in the circumstances the appel-
lant was not responsible for the action of his
wife. Russon v. Duttoyi (No. 2), 104 L. T.
599: 75 J. P. 207; 22 Cox C.C. 487;
27 T. L. E. 198— D.
H. CONVICTION AND PUNISHMENT
BY JUSTICES.
See also Vol. VIII. 467, 1770.
Two Convictions on Same Day — " Second
offence" — Forfeiture of Licence.] — Two in-
formations were preferred against the appli-
cant, who was the holder of an off-licence for
the sale of beer, under section 3 of the
Licensing Act, 1872, for having sold beer at
places where he was not authorised by his
licence to sell the same, and for having at the
same time and places exposed beer for sale.
The two cases were heard together, and the
applicant was convicted and fined upon each
information. At the next general annual
licensing meeting the applicant applied for a
renewal of his licence, but the licensing Jus-
tices refused the application on the ground
that the applicant had been convicted of a
" second offence " under section 3, and that
therefore his licence had become forfeited : —
Held, that a " second offence " under the
section meant an offence committed after a
conviction for a previous offence, and that
the decision of the Justices was therefore
wrong. Rex v. South Shields Licensing
Justices, 80 L. J. K.B. 809; [1911] 2 K.B. 1;
105 L. T. 41; 75 J. P. 299; 22 Cox C.C. 431;
65 S. J. 386; 27 T. L. K. 330— D.
Sale by Unlicensed Person — Conviction —
Non-payment of Fine and no Sufficient Distress
— Term of Imprisonment.] — Section 65, sub-
section 1 of the Licensing (Consolidation) Act,
1910, prohibits the sale of any intoxicating
liquor by retail except by a licensed person,
and sub-section 2 enacts that " If any person
acts in contravention of this section, he shall
be liable ... in the case of the first offence
to a fine not exceeding fifty pounds, or to
imprisonment with or without hard labour for
a term not exceeding one month." Section 99,
sub-section 1, provides that, " Except as other-
wise expressly provided, any offence under this
Act may be prosecuted, and every fine or
forfeiture may be recovered and enforced, in
manner provided by the Summary Jurisdiction
Acts " : — Held, that as no method of recover-
ing a fine imposed for a contravention of
section 65 of the Licensing (Consolidation)
Act, 1910, is provided by that Act, the provi-
sions of section 5 of the Summary Jurisdiction
Act, 1870, apply; and therefore, where a person
is convicted under section 65, and a fine not
exceeding 20Z. is imposed, he may, on non-
payment of the fine and in default of sufficient
distress, be sentenced, in accordance with the
scale provided by section 5 of the Act of 1879,
to a term of imprisonment not exceeding three
months. Req. v. Hopkins (62 L. J. M.C. 57;
[1893] 1 Q.B. 621) applied. Rex v. Leach;
Frifchley, Ex parte, 82 L. J. K.B. 897 ; [1913]
3 K.B. 40: 109 L. T. 313; 77 J. P. 255;
23 Cox C.C. 535 ; 29 T. L. E. 569— D.
I. COVENANTS AND AGEEEMENTS
EESPECTING LICENSED HOUSES.
See also Vol. VIII. 470, 1770.
Lease — Covenant — Construction — Sale of
Goods " at fair market price " — Tied and Free
Public Houses — Two Market Prices.] — The
respondent was the lessee of a public house in
London of which the appellants, a firm of
brewers, were the owners. By his lease he
covenanted that he would deal exclusively
with them for all malt liquors which should
be sold or consumed on the premises, " pro-
vided they shall be willing to supply the same
at the fair market price." It was proved
that of the public houses in London about
93 per cent, were " tied " houses, and 7 per
cent, were " free " houses, and that the
London brewers supplied beers at standard
prices, fixed by agreement among themselves,
subject to discounts, and that the discounts
allowed to " free " houses were larger than
those allowed to " tied " houses. In an action
brought by the appellants to recover the
balance of an account for beer supplied to
the respondent, he counterclaimed for sums
which he alleged that he had paid to the appel-
lants in excess of the fair market price for
beer supplied to him. The jury found that there
were two market prices — one for " tied " and
one for " free " houses — and that the respon-
dent had been charged the fair market price
as applying to a " tied " house : — Held, that
the term "market price" in a contract had not
a fixed definite legal significance which at-
tached to it invariably, but that it must be
construed with reference to the context and
surrounding circumstances, and that the
respondent was not entitled to recover on the
counterclaim. Charrinqton i Co. v. Wooder,
83 L. J. K.B. 220; [1914] A.C. 71 : 110 L. T.
548— H.L. (E.)
Judgment of the Court of Appeal
(29 T. L. E. 145) reversed. Ih.
Compensation Charge — Covenant not to
Deduct from Rent — Willingness of Tenant not
to Deduct — Invalidity of Covenant — Best Rent
— Lease Yoid against Remaindermen.] — By
section 7, sub-section 2 of the Settled Land
777
INTOXICATING LIQUOKS.
778
Act, 1882, " Every lease shall reserve the best
rent that can reasonably be obtained, regard
being had to any fine taken, and to any money
laid out or to be laid out for the benefit of the
settled land, and generally to the circumstances
of the case." It was enacted by section 3,
sub-section 3 of the Licensing Act, 1904, that
a percentage of the compensation charge
might, " notwithstanding any agreement to
the contrary," be deducted from his rent by
any licence holder who pays such a charge.
A similar provision is contained in section 21,
sub-section 3 of the Licensing (Consolidation)
Act, 1910. A tenant for life demised licensed
premises to the defendant, who covenanted to
pay the compensation charge without making
any deduction from the rent, and the defen-
dants in fact paid the charge without making
any deduction : — Held, that the covenant was
invalid, and that as the defendants were will-
ing to pay the full rent without deductions
the rent minus the deduction was not the best
rent reasonably obtainable, and therefore the
lease was void as against the remaindermen.
Pumford v. Butler .f Co., 83 L. J. Ch. 858;
[19141 2 Ch. 353: 111 L. T. 408; 78 J. P.
457; 58 S. J. 655; 30 T. L. R. 556— Joyce, J.
Insurance of Licence — CoYenant by Lessee
— Loss or Forfeiture of Licence — Loss by
Reason of Redundancy.] — Where a lease of a
public house has been granted since the provi-
sions of the Licensing Act, 1904, for com-
pensation, in the event of the renewal being
refused on the ground of redundancy, came
into operation, a covenant by the lessee to
insure against the loss or forfeiture of the
licence is performed by his insuring merely
against loss or forfeiture through any act on
his part, but not against loss by reason of
redundancy. Wootton v. Lichfield Brewery
Co., 59 S. J. 744: 31 T. L. R. 615—
Astbury, J. Affirmed, 32 T. L. R. .50— C. A.
Attempt to Create Property in Licence
Apart from Premises.] — By an agreement
dated July 5, 1892, purporting to be made
between the plaintiffs, a brewery company,
and the defendant, the occupier of a house in
D. street in the borough of C, it was recited
that the company were beneficial owners of a
licence for a house in B. street, and that the
defendant had requested the company to allow
her to apply for a transfer of the licence to
the house in D. street to her own name, and
to sell thereunder, to which the company
agreed on her undertaking to pay them the
sum of 300L secured by a bond executed by
her contemporaneously, and the defendant
thereby agreed to take all necessary steps to
have the licence transferred to her own name,
and to the house in D. street, and to maintain
the licence in full force, and renew it. and to
indorse and deposit it with the company, to
be transferred by her to such other person and
house as the company might name, the SOOl.
to be repaid to defendant on such transfer
being obtained from the licensing authority.
The defendant further agreed, while licensed,
to deal exclusively with the company for all
porter and for all stout so long as tliey should
brew and vend stout, which she should sell
on the premises or elsewhere under colour of
the licence, and also to purchase from the
company four tierces of porter in every month,
and the company agreed to supply her while
licensed with such quantity of good merchant-
able porter, and, so long as the company should
brew and vend stout, such quantity of good
merchantable stout as she might require, on
being paid in cash therefor the price usually
charged to customers. The agreement was
executed by the defendant under seal, but was
not executed by the company. The company
had purchased the licence of the house in B.
street (apart from the house itself) for 160L
in 1891, and the defendant had obtained at
quarter sessions an interim transfer of this
licence to the house in D. street at the
licensing sessions in June, 1892, which was
confirmed at the annual licensing sessions in
October, 1892. The defendant dealt with the
company for porter, but only to a very small
extent for stout, which she procured almost
exclusively from another brewery, and in 1907
she entered into an agreement with this other
brewery to sell its bottled stout exclusively.
Throughout there was painted on the outside
of her shop "J. L. Murphy & Co.'s XX
Stout." The plaintiffs were aware for a long
time that the defendant was selling some stout
of the other brewery, but did not know that
she was selling it in large quantities till
shortly before bringing the present action,
which claimed damages for breach of the
agreement of July 9, 1892, and an injunction
to restrain the defendant from selling porter
and stout other than that manufactured by
the plaintiffs. The defendant pleaded want
of, and illegality of, consideration, unreason-
able restraint of trade, laches, and acqui-
escence. There was no plea that the agreement,
apart from the consideration, was illegal : —
Held, that the action should be dismissed.
Per O'Brien. L.C.. and Holmes, L.J. : The
dominant object of the agreement was an
attempt to create property in a licence apart
from the premises, in contravention of the
licensing laws, and the agreement was
therefore illegal and not enforceable. Per
Palles, C.B. : Illetrality pervaded the entire
agreement — both the consideration and the
promises. Held, further, that as the illegality
of the agreement appeared on its face it was
not necessary that such illegality should have
been pleaded. Murphy d- Co. v. Crean, [1915]
1 Ir. R. Ill— C.A.
J. CLUBS.
See also Vol. VIII. 1777.
Excise Duty — Intoxicating Liquor Supplied
in Registered Club — Basis on which Duty
Payable.! — The Excise duty of sixpence
imposed upon every registered club by
section 48, sub-section 1 of the Finance
(1909-10) Act, 1910, in respect of every pound
of intoxicating liquor purchased by the club
is to be paid on the actual price paid by the
club for such intoxicating liquor, notwith-
standing that in such price there may be in-
cluded a duty already paid by the merchant
from whom the club purchased the liquor.
Callaway v. Reqem, 108 L. T. 1029;
29 T. L. R. 603— Atkin. J.
779
INTOXICATING LIQUORS.
780
Club Struck off Register — Power to Re-
register— "Unregistered club."] — A club,
struck off the register of clubs under the pro-
visions of section 95, sub-section 1 of the
Licensing (Consolidation) Act, 1910, cannot be
re-registered, and therefore the sale of liquor
on the premises of such club is a sale on the
premises of an " unregistered club," as defined
in section 110, -within the meaning of
section 93, sub-section 1. Lees v. Lovie,
81 L. J. K.B. 978; [1912] 2 K.B. 425;
107 L. T. 165; 76 J. P. 372; 23 Cox C.C. 92;
28 T. L. R. 441— D.
Sale to Members of Club — Intoxicating
Liquor Property of Members of Club.] — The
appellants were the officers carrying on a club
which was duly registered under the Licensing
(Consolidation) Act, 1910, and the property
of which was by the rules vested in trustees
representing and acting for the whole of the
members of the club. The club was struck
off the register for twelve months on the
ground that it had not been conducted in good
faith as a club. The appellants were sum-
moned for selling intoxicating liquor by retail
which they were not licensed to sell on a date
before the club was struck off the register.
The magistrate found that the intoxicating
liquor formed part of the general property of
the club vested in trustees on behalf of the
members of the club. He also found that the
club was not a bona fide club, but was con-
ducted solely for the purpose of enabling
frequenters of the club to purchase intoxicating
liquors in a place other than in a licensed
house and during prohibited hours : — Held.
that, having regard to the finding of the
magistrate, there had been no sale by retail
by the appellants of intoxicating liquor within
the meaning of section 65 of the Licensing
(Consolidation) Act, 1910, but merely a dis-
tribution of the property of the club among
the members to whom it belonged. Metford
V. Edwards, 84 L. J. K.B. 161; [1915] 1 K.B.
172; 112 L. T. 78; 79 J. P. 84; 30 T. L. R.
700— D.
Distribution of Liquor, the Property of the
Club, among Members of the Club, at Place
other than Club Premises.] — A supper anl
smoking concert for the members of a club,
which was registered under section 91 of the
Licensing (Consolidation) Act, 1910, was held
at a place other than the club premises. A
supply of intoxicating liquor, belonging to the
club, was taken to that place by certain
members of the club, and there distributed
only to the members of the club, in the same
way as it was distributed at the club : — Held,
that the fact that the distribution of the liquor
among the members of the club took place at
a place other than the club premises did not
make the distribution a sale of intoxicating
liquor by retail, so as to constitute an offence
under section 65 of the Licensing (Consolida-
tion) Act, 1910. Qucere, whether an offence
had been committed under section 94 of the
Licensing (Consolidation) Act, 1910, if the
appellants had been prosecuted under that
section. Humphre^i v. Tudgay, 84 L. J. K.B.
242; [1915] 1 K.B. 119; 112 L. T. 152;
79 J. P. 93— D.
Sale, Supply, or Consumption of Intoxicating
Liquor — Suspension — Suspension "at an hour
earlier than nine at night" — Approval of
Order by Secretary of State.] — By section 1,
sub-section 1 of the Intoxicating Liquor (Tem-
porary Restriction) Act, 1914, " The licensing
justices for any licensing district may, . . .
by order direct that the sale or consumption
of intoxicating liquor on the premises of any
persons holding any retailers' licence . . . and
the supply or consumption of intoxicating
liquor in any registered club . . . shall be sus-
pended while the order is in operation, during
such hours and subject to such conditions or
exceptions (if any) as may be specified in the
order : Provided that, if any such order sus-
pends the sale, supply, or consumption of
intoxicating liquor at an hour earlier than nine
at night, the order shall not have effect until
approved by the Secretary of State." Licens-
ing Justices made an order under the above
section providing that the sale or consumption
of intoxicating liquor on the premises of
persons holding retailers' licences, and the
supply or consumption of such liquor in
registered clubs, should be suspended " in the
evening of each day after the hour of 10 o'clock
until 6 A.M. on the following day being a week
day and 12.30 p.m. on the following day being
a Sunday '" : — Held, that the object of the Act
was to put licensed premises and registered
clubs on the same footing with regard to re-
strictions on the sale and supply of intoxicating
liquor; that the order meant that, in regard
both to licensed premises and registered clubs,
there should be a suspension from 10 p.m. till
the normal opening hour of licensed premises
the next morning ; and that it did not come
within the proviso to section 1, and did not
therefore require the approval of the Secretary
of State. Lee v. Aykroyd, 84 L. J. K.B. 1831 ;
[1915] 2 K.B. 692; 113 L. T. 454; 79 J. P.
381; 31 T. L. R. 445— D.
K. OFFENCES BY OTHER THAN
LICENCE HOLDERS.
See also Vol. VIIL 1779.
Guest of Lodger — Using Licensed Premises
merely for Obtaining Liquor.] — By section 62,
sub-section 1 of the Licensing (Consolidation)
Act, 1910, "If, during any period during which
any premises are required under the provisions
of this Act, to be closed, any person is found
on those premises, he shall, unless he satisfies
the Court that he was an inmate, servant, or
a lodger on the premises, or a bona fide
traveller, or that otherwise bis presence on the
premises was not in contravention of the pro-
visions of this Act with respect to closing
hours, be liable in respect of each offence to a
fine not exceeding forty shillings." The
appellant's cousin was staying at licensed
premises as an ordinary hotel guest or lodger,
and he invited the appellant and some friends
to have a drink at the hotel during closing
hours. The appellant was found on the
premises after closing time drinking whisky
which had been ordered and paid for by his
cousin. Upon the hearing of an information
against the appellant charging him under the
above section with being unlawfully on licensed
781
INTOXICATING LIQUORS— lEELAND.
782
premises at a time when they were required 1
to be closed, he was convicted and fined by j
the Justices -.—Held, that the onus was on the
appellant of satisfying the Justices that his I
presence on the premises was not m contra- j
vention of the Act, and that they were justified |
on the evidence in convicting him. Atkins v.
Agar, 83 L. J. K.B. 265: [1914] 1 K.B. 26;
109 L. T. 891; 78 J. P. 7 ; 23 Cox C.C. 677;
30 T. L. E. 27— D.
Pine V. Barnes (57 L. J. M.C. 28 ; 20 Q.B.
D 221) distinguished. Jones v. Jones
(79 L. J. K.B. 762; [1910] 2 K.B. 262) ]
followed. lb. i
Person Found Drunk on Licensed Premises i
after Closing Hours— Lodger.]— A bona fide
lodger in licensed premises, who is found
drunk on such premises after closing hours,
cannot be convicted under section 12 of the
Licensing Act. 1872. Lester v. Torrens
(46 L J M.C. 280; 2 Q.B. D. 403) followed.
Youna v. Gentle, 84 L. J. K.B. 1570; [1915]
2 K.B. 661; 113 L. T. 322; 79 J. P. 347;
31 T. L. R. 409— D.
L. HABITUAL DRUNKAED.
See also Vol. VIII. 1779.
Definition— Order for Judicial Separation by
Justices. T-Justices are not entitled to find
that a person is a habitual drunkard within the
meaning of the Habitual Drunkards Act, 1879,
unless they are satisfied that by reason of the
habitual intemperance the person charged is
dangerous at times to himself or herself or to
others, or is incapable of managing himself
or herself and his or her affairs. It is neces-
sary to prove that, though a person may be
excessively intemperate and violent at times,
the acts of violence were brought about by
reason of the intemperance. Tayler v. Tayler,
56 S. J. 572— D.
INVENTION.
See PATENT.
INVESTMENT.
Powers of." — See Tucst.
IRELAND.
See aUo Vol. VIII. 484, 1781.
Bonus Payable under Irish Land Act—
Whether an Interest in the Lands.]— The
percentage or bonus payable under section 48
of the Irish Land Act, 1903, is a personal
thine given as an inducement to an owner
to sell lands. It is not an interest in the
lands sold, nor is it part of the proceeds of
sale of the lands. View of Eve, J., in
Tremayne v. RasJileigh ill L. J. Ch. 365;
[1908] 1 Ch. 681), that the bonus is an interest
in the lands, dissented from. Heard v.
Gabbett, [1915] 1 Ir. E. 213— Eoss, J.
Charitable Trusts— Bonus Percentage in the
Hands of Trustees— Capital or Income— Irish
Land Purchase.] — Where trustees of lands,
held after a life tenancy for charitable pur-
poses, sell the lands under the Irish Land
Purchase Acts, 1903 and 1904, the percentage
bonus received by them under section 48 of the
Act of 1903 is to be applied upon the trusts of
the settlement, but is capital, not income, and
is to be paid over as capital to the official
trustee with the rest of the purchase money.
Thornqates Settlement, In re; Churcher v.
itt.-Gen., 84 L. J. Ch. 561; 113 L. T. 483;
13 L. G. E. 901— Eve, J.
Land Purchase Acts — Appeal to House of
Lords.]— Section 24, sub-section 13 of the Irish
Land Act, 1903, does not of itself create or
enact a right of appeal to the House of Lords.
Scottish Widoics' Fujid Life Assurance Society
V Blennerhassett, 81 L. J. P.C. 160; [1912]
A.C. 281; 106 L. T. 4; 28 T. L. E. 187—
H.L. (Ir.)
Local Government- Improvement Scheme-
Letting of Cottages Erected under Scheme
— Preference to Labourer Signing Representa-
tion.]— The provision in section 29, sub-
' section 2 of the Labourers (Ireland) Act, 1906,
that, on the first letting of any cottage or
allotment comprised in an improvement scheme
under the Act, preference shall be given to
the agricultural labourers who have signed the
representation on which the scheme was
founded, does not give to any such labourer a
right to any particular cottage, but the district
council have a discretion in allotting cottages
among applicants. Marron v. Cootehill Rural
Council, 84 L. J. P.C. 125; [1915] A.C. 792;
79 J. P. 401— H.L. (Ir.)
Decision of the Court of Appeal in Ireland
([1914] 1 Ir. E. 201) af&rmed. 76.
Marriage — Celebration by a Roman Catholic
Priest— Whether Statute Extra-territorial in
Operation. I — The Irish statute 19 Geo. 2. c. 13,
which enacted that every marriage after the
year 1746 celebrated between a Papist and
any Protestant, or between two Protestants,
if celebrated by a Eoman Catholic priest,
should be null" and void, was not extra-
territorial in its operation, and did not, while
it was in force, affect a marriage celebrated
in a foreign country. Where, therefore,
while that Act was in force a marriage was
f-elebrated in Austria between A, a Protestant
and domiciled Irishman, and B, who was an
Austrian and a Eoman Catholic, by a Eoman
Catholic priest in facie ecclesice, the marriage
l)eing valid according to Austrian law,— Hf/f/,
that""the marriage in Austria was not avoided
hy 19 Geo. 2. c. 13, and therefore that A could
783
lEEL AND— JUSTICE OF THE PEACE.
784
not, while B was alive, contract a valid
marriage with another woman. Swifte v.
Att.-Ge7i. for Ireland (No. 1), 81 L. J. P.O.
158 ; [1912] A.C. 276 ; 106 L. T. 3 ; 28 T. L. E.
199— H.L. (Ir.)
Congested District Board — Compulsory
Powers.] — See Lands Clauses Act.
Salmon Fishery.] — See Fishery.
JOINT TENANCY.
See ESTATE; INSUEANCE (LIFE).
JOINTURE.
See HUSBAND AND WIFE; POWER.
JUDGMENT.
Foreign Judgment.] — See International
Law.
Practice Relating to.]— See Practice.
JUDICIAL SEPARATION.
See HUSBAND AND WIFE.
JUDICIAL TRUSTEE ACT,
1896.
See TRUSTEE.
JURY.
See CRIMINAL LAW; PRACTICE.
JUSTICE OF THE PEACE.
A. JUEISDICTION AND DuTY.
Generally, 784.
Where Disqualified from Acting, 785.
Where Claim of Right Set up, 787.
Matters Within, 790.
Withdratcal of Justice from Adjudi-
cating, 791.
B. Procedure Before.
1. Information, 792.
2. Summons, 792.
3. Hearing, 794.
4. Warrants, 796.
5. Orders, 797.
6. Convictions, 797.
7. Costs of Prosecution, 799.
C. Appeal.
1. To High Court, 800.
2. To Quarter Sessions, 803.
D. SiTTiN-GS OF Quarter Sessioxs, 805.
E. Jurisdiction of Quarter Sessions as to
Indictable Offences, 806.
F. Compelling Justices to Do Their Duty,
806.
G. Clerks to Justices, 807.
A. JUEISDICTION AND DUTY.
See also Vol. VIII. 543, 1784.
1. Generally.
Priority of Jurisdiction.] — The settled rule
as to the jurisdiction of Justices is, that in
each particular case it attaches to the first set
of Justices duly authorised who have possession
and cognisance of the facts. Rex v. Cork
Justices, [1912] 2 Ir. R. 151— K.B. D.
Justices for County — Petty Sessional Divi-
sions — Sale of Milk — Place of Delivery to
Purchaser.] — By section 20 of the Sale of
Food and Drugs Act, 1875, proceedings for the
recovery of a penalty for an offence against
a provision of the Act may be taken "before
any justices in petty sessions assembled having
jurisdiction in the place where the article or
drug sold was actually delivered to the pur-
chaser, in a summary manner " : — Held, that
where an article sold is actually delivered to a
purchaser in one petty sessional division of a
county. Justices who usually sit and act in
another division of that county have jurisdic-
tion to adjudicate upon an information for an
offence under the Act. Held, also, that a
county Justice who usually sits and acts in one
petty sessional division of the county has
jurisdiction to issue a summons for an offence
under the Act, although the article sold was
actually delivered to the purchaser in another
division of the county. Rex v. Beacontree
Justices; Rex v. Wright, 84 L. J. K.B. 2230;
[1915] 3 K.B. 388 ; 79 J. P. 461 ; 13 L. G. E.
1094; 31 T. L. E. 509— D.
785
JUSTICE OF THE PEACE.
(86
2. Where Disqualified from Acting.
See also Vol. VIII. 543, 1784.
Bias — Application for Renewal of Licence —
Justice a Member of Order of Rechabites.] —
The renewal of a licence having been refused
by the compensation authority by a majority,
one of the Justices wrote a letter to a news-
paper giving the names of those who voted
for and those who voted against the granting
of the renewal. Among those stated in that
letter to have voted for the granting of the
renewal was W. W. thereupon wrote a
letter to the same newspaper contradicting
this statement, and adding, " I should be
nothing less than a traitor, considering the
position I hold, if I had voted as he states
in his letter." It appeared that W. had been
for many years the secretary of a branch of
the Order of Eechabites, and as a member of
that society he had signed the following
declaration : "I hereby declare that I will
abstain from all intoxicating liquors ... I
will not engage in the traffic of them, but in
all possible ways will discountenance the use,
manufacture, and sale of them." On an
application for a rule nisi for a mandamus to
hear and determine the application for the
renewal according to law, on the ground that
there was evidence of bias on the part of
W. in considering the application, — Held
(Kennedy, L.J., dissenting), that the rule for
a mandamus must be made absolute, inasmuch
as the circumstances were such as to make
bias so probable that W. ought not to have
taken part in the case. Robinson, Ex parte,
76 J. P. 233; 28 T. L. R. 288— C. A.
Member Belonging to Society Pledged
to Prohibition Principles.] — The mere fact of
belonging to a temperance society pledged to
the principle of "no licence in any form under
any circumstances for the sale of liquors to
be used as a beverage," does not operate as a
disqualification for sitting as a member of a
licensing Court. M' Geelien v. Knox, [1913]
S. C. 688— Ct. of Sess.
Statutory Disqualification — Court of Sum-
mary Jurisdiction — Acquittal — Order —
Voidable, not Void — Certiorari to Quash
Acquittal.] — Two miners were charged before
a Court of summary jurisdiction with an
offence under the Coal Mines Act, 1911. An
order of acquittal was made by the Justices,
one of whom was disqualified from acting as
a member of the Court by section 103 of the
Coal Mines Act, 1911, as he was a person
employed in a mine : — Held, that the order
of acquittal could not be quashed on certiorari
— per Ridley, J., upon the ground that the
accused had stood in peril of conviction, the
order of the Justices being voidable only and
not void, and that therefore the maxim Nemo
debet bis vexari applied; per Scrutton, J.,
upon the ground that otherwise the accused
would be prevented from raising the plea of
autrefois acquit if subsequent proceedings
were taken against them; per T^ailhache, J.,
upon the ground that the acquittal was by a
competent tribunal notwithstanding that one
of its members was disqualified. Rex V.
S imps 071 ; Smithson. Ex parte, 83 L. J. K.B.
233 ; [1914] 1 K.B. 66 ; 110 L. T. 67 ; 78 J. P.
55 ; 23 Cox C.C. 739 ; 58 S. J. 99 ; 30 T. L. R.
31— D.
Certiorari — Affidavit in Support of Rule
— Sufficiency.] — By section 15 of the Bread
Act, 1836, " no person who shall follow or be
concerned in the business of a miller, mealman,
or baker shall be capable of acting or shall be
allowed to act as a justice of the peace under
this Act ..." The applicant for a rule for
a writ of certiorari had been convicted by a
Court of summary jurisdiction of selling bread
otherwise than by weight, contrary to sec-
tion 4 of the Bread Act, 1836. The affidavit
in support of the rule stated that, upon the
hearing of the information, one of the Justices
had sat and acted as chairman of the Court,
he being at the time concerned in the business
of a baker. It did not, however, state that
at the time of the hearing the applicant had
no knowledge of the alleged disqualification of
the Justice -.—Held, that as the affidavit did
not state that at the time of the hearing the
applicant was ignorant of the facts giving
rise to the disqualification he was precluded
from claiming a certiorari ex debito justitice ;
that the granting of a rule was therefore dis-
cretionary, and must, under the special
circumstances of the case, be refused. Rex
V. Williams; Phillips, Ex parte, 83 Ij. J.
K.B. 528: [1914] 1 K.B. 608; 110 L. T. 372;
78 J. P. 148— D.
Interest.] — If, on an application to bring
up, for the purpose of being quashed, a con-
viction on the ground that one of the Justices
was interested in the matter of the conviction,
it appears that the applicant for the certiorari,
or his solicitor, knew the Justice's position
and did not take objection to his sitting, the
Court will refuse to grant the writ. Rex v.
Byles: Hollidge, Ex parte, 108 L. T. 270;
77 J. P. 40; 23 Cox C.C. 314— D.
Interested Justice — Conduct Calculated to
Lead Public to Think he was Taking Part in
Adjudicating.] — U. was prosecuted before
Justices for having on his premises purloined
yarn. The prosecution was brought by the
direction of a linen trade association, and on
the complaint of their inspector. When the
case came on, U.'s solicitor objected to any
magistrate taking part in the proceedings who
was a member of the association. M., who
was one of the Justices, and was presiding as
chairman, stated that he was a member of the
association, but that he had no personal
interest and would adjudicate. At the close
of the statement of the complainant's case,
and before any evidence was given, M. left
the chair and took his seat on the bench some
distance from the other magistrates. After a
short time he left the bench and went into
the magistrates' room, and was there when
the other magistrates came in to consider their
decision, but at once retired. He took no part
in the adjudication. U. was convicted of the
offence charged -.—Held, that the conviction
must be quashed, with costs to be paid by M.
Rex V. Armagh Justices, [1913] 2 Ir. R. 410
—K.B. D.
787
JUSTICE OF THE PEACE.
788
Refusal of Admission to Court by Justice.]
— C. was arrested on a warrant charged with
an indictable offence, and brought before E.,
a Justice of the peace for the county of the
city of Belfast, who had been asked by the
Crown Solicitor to take the depositions. E.
sat in a room in the police station, and on the
request of the Crown Solicitor made an order
excluding all persons except representatives
of the accused. Several other Justices for the
county of the city of Belfast endeavoured to
enter the room, but were refused admission.
C.'s solicitor applied to E. to admit the other
magistrates, but E. refused to do so, giving
as a reason that he was guided by the Crown,
and directed by the Crown not to allow the
other magistrates to be present. C. having
applied for a writ of prohibition to prohibit E.
from proceeding further in the matter on
the ground of bias, — Held, while entirely
acquitting E. of any moral blame, that a
reasonable public might think that the
expression used by E. implied that in making
his order he was acting by the direction of
the Crown and not exercising his own dis-
cretion, and that the writ of prohibition should
be granted. Rex v. Emerson, [1913] 2 Ir. E.
377— K.B. D.
Costs.] — The case of E. having been taken
up on his behalf by the Crown, — Held, that
there was no power to give costs against the
Crown. 7b.
Function of Justices in Returning for Trial.]
— The function of Justices in returning for
trial is judicial, and prohibition will lie if bias
or want of jurisdiction is established. Rex v.
Davison, [1913] 2 Ir. R. 342— K.B. D.
3. Where Claim of Eight Set tip.
See also Vol. VIII. 553. 1789.
Assault — Claim of Title to Land — Title not
Disputed.] — The appellant, the chairman of
the managers of a voluntary school, ordered
one of the pupils to leave the school for alleged
disobedience, and directed the head mistress to
take her name off the register. Upon subse-
quently visiting the school the appellant found
the girl there, sitting at a desk in the room
of the head mistress. He told the girl to leave
the school, and as she did not obey, he forcibly
removed her from the school to the highway,
and locked the gate to prevent her from
rchjrning. T'pon an information charging the
appellant with assault, he contended that, after
the directions he had given, the girl had no
right in law to attend the school, and was a
trespasser; that he had sole control of the
school; that a question of title had arisen,
and that under section 46 of the Offences
against the Person Act, 1861, the jurisdiction
of the Justices was ousted : — Held, that,
assuming that the appellant was a trustee of
the school, and that in acting as he did he
was asserting a title to, or an interest in land,
yet it was a title which was not disputed, and
that therefore the jurisdiction of the Justices
was not ousted. Lucan v. Barrett, 84 L. J.
K.B. 2130; 113 L. T. 737; 79 J. P. 463;
13 L. G. E. 1361 ; 31 T. L. E. 508— D. •
Private Oyster Bed — Fishing — Right of
Public] — Under section 19 of the Ipswich
Fishery Act, 1867, the oyster fishery in the
river Orwell and the oysters in the river were
to be deemed to belong to the Ipswich
Corporation, and they were given power by
section 20 to demise and lease the oyster
fishery. The Act also provided that the
lessee under such lease should have the
exclusive right of depositing, propagating,
dredging, and fishing for and taking oysters
in the river ; and that all oysters in the river
should, during any such lease, be the absolute
property of the lessee and be deemed to be in
his possession. The Ipswich Corporation
demised the oyster fishery to the respondent,
who marked out the oyster beds by buoys. The
appellant, who had fished with a trawl within
the limits of the oyster bed so marked out,
was charged with an offence under section 53
of the Sea Fisheries Act, 1868, which forbids
any person other than the owner of a private
oyster bed, within the limits of such bed,
knowingly to use any instrument of fishing,
except a line and hook or a net adapted solely
for catching floating fish, and so used as not
to disturb or injure in any manner any oyster
bed. The appellant alleged that, as the river
was an arm of the sea, the members of the
public had the right to fish in the river, which
right was not defeated by the lease to the
respondent, and that therefore the jurisdiction
of the Justices was ousted by that claim of
right : — Held, that the right set up by the
appellant was one which could not exist in
law, having regard to the terms of the Ipswich
Fishery Act, 1867, and the Sea Fisheries Act,
1868, and that therefore the jurisdiction of
the Justices was not ousted; and further, that
the fact that the appellant honestly believed
that he had the right to fish in that manner
did not prevent his being convicted, as a
guilty mind was not a necessary ingredient
of the offence. Smith v. Cooke, 84 L. J. K.B.
959; 112 L. T. 864; 79 J. P. 245— D.
Railway — Right of Way.] — Where in a
case before Justices a claim of right is raised,
and, as part of the enquiry whether there is
such a right, a question of fact has to be
decided, and in the event of a certain finding
of fact there is a legal possibility of the exist-
ence of the right, the jurisdiction of the
Justices is ousted ; but if on the admitted facts
it appears certain that the right claimed cannot
legally exist, their jurisdiction is not ousted.
Arnold v. Morgan, 80 L. J. K.B. 955; [1911]
2 K.B. 314; 103 L. T. 763; 75 J. P. 105;
9 L. G. E. 917— D.
The respondent was summoned for tres-
passing on a railway, and, before the
Justices, claimed a right as a member of the
public to pass to and fro on the railway.
The railway was only used for goods traffic :
— Held, that, as the railway company had
the power to dedicate a right of way to the
public along their railway, provided that the
user of the right was not incompatible with
the user of the railway as a railway, and that
the question whether it was incompatible or
not was a question of fact depending on the
particular circumstances, and as it was legally
789
JUSTICE OF THE PEACE.
790
possible for such a right to exist if the facts
were found in favour of the respondent, the
jurisdiction of the Justices was ousted. lb.
Obstruction of Street.] — On a prosecution
for obstruction to the public street of the town
of M., there was evidence that the act com-
plained of as an obstruction was the exposing
for sale, during a public fair held in the streets
of M., of goods on the pavement; that the
same class of goods had been sold at such fairs
in the public street twenty years before ; and
that public fairs had been held in the streets
of the town for twenty years and upwards.
Tlie defendant in the prosecution claimed
before the Justices the right so to expose her
goods, but was convicted and fined. Upon
motion for certiorari, — Held, that on the evi-
dence it might be inferred that the dedication
of the street was subject to the right to hold
thereon public fairs at stated intervals, that
there was evidence that the defendant had the
right to sell her goods as a member of the
public at such public fair, and that there was
consequently a bona fide claim of right on her
part to do the acts complained of as an obstruc-
tion, which claim being material to their
decision ousted the jurisdiction of the Justices.
Rex V. Cork Justices, [1913] 2 Ir. R. 391—
K.B. D.
When there is a bona fide claim of right
material to the decision, as the Justices have
no jurisdiction to determine the existence of
the right, they have no jurisdiction to deter-
mine whether, in the case before them, there
has been an excessive user of the alleged right.
76.
Removing Shingle.]— The Board of Trade,
in pursuance of the powers conferred upon
them by the Harbours Act, 1814, as amended
by the Harbours Transfer Act, 1862, issued
an order prohibiting the taking or removing
of any shingle or ballast from the shores or
banks of the sea between certain points. The
appellant, the owner in fee of the locus in quo,
prosecuted the respondent, one of his agri-
cultural tenants, for having, in contravention
of the statute, removed ballast from the shore
within the points indicated in the order of the
Board of Trade. The defence set up by the
respondent was, that as tenant he had always
drawn gravel and sand off the foreshore and
that he enjoyed a right of property within the
meaning of section 28 of the Act of 1814. The
magistrates declined jurisdiction on the ground
that a bona fide question of title was involved :
— Held, that the magistrates were right in
declining jurisdiction. Burton v. Hudson
(78 L. J. K.B. 905; [1909] 2 K.B. 564)
followed. Anderson v. Jacobs (93 L. T. 17)
distinguished. Talbot de Malahide (Lord) v.
Dunne, [1914] 2 Ir. R. 125— K.B. D.
Order to Enter into Recognisances to Keep
the Peace.] — The question whether Justices
have power to order defendants to enter into
recognizances to keep the peace where a bona
fide question of title is raised, considered. Rex
V. Londonderry Justices, [1912] 2 Ir. R. 374
—K.B. D.
4. Matters Within.
See also Vol. VIIL 568, 1792.
Power to Order Person to Enter into Recog-
nisances and Find Sureties.] — Under the
statute 34 Edw. 3, c. 1, Justices have power
to make an order binding over a person, and
requiring him to find sureties for his good
behaviour, and, in default of his so doing,
to order him to be imprisoned ; and they make
that order notwithstanding that no com-
plainant has stated on oath that he is under
actual fear of bodily harm from the person
sought to be bound over. Lansbury v. Riley,
83 L. J. K.B. 1226; [1914] 3 K.B. 229;
109 L. T. 546: 77 J. P. 440; 23 Cox C.C. 582;
29 L. T. R. 733— D.
The fact that threats, or an assault, which
would authorise Justices in requiring sureties
for the peace and good behaviour, arose by
reason of a bona fide dispute as to title does not
oust the jurisdiction of the Justices to require
such sureties. Rex v. Monaglian Justices,
[1914] 2 Ir. R. 156— K.B. D.
An order of Justices, setting out a complaint
that the defendant used threatening language
to the complainant, thereby putting him in
fear and dread of the defendant, and ordering
the defendant to enter into recognizances to
keep the peace and be of good behaviour,
suificiently shews on its face jurisdiction to
make such order. Rex v. Londonderry Justices
([1912] 2 Ir. R. 374) explained. 7b.
The applicant was called upon on June 26,
1909, at the instance of the chief constable of
Liverpool to shew cause why he should not
be ordered to find sureties to keep the peace
and to be of good behaviour. The information
of the chief constable stated that the applicant
had informed him that he intended to lead
a parade of his Bible class through certain
streets of Liverpool on Sunday, June 27, and
that the chief constable apprehended and
believed that if the applicant did so the
natural consequence would be a breach of the
peace, riot, and disorder. Upon the applicant
undertaking at the hearing not to hold a pro-
cession on Sunday, June 27, he was released
on bail. At the adjourned hearing on July 1
the chief constable expressed his willingness
to withdraw the proceedings as the proposed
object had been attained — namely, the preven-
tion of the procession on June 27 — but the
magistrate refused to allow this unless the
applicant would enter into his own recog-
nizances to keep the peace and to be of good
behaviour, and he made an order accordingly,
or, in the alternative, that the applicant should
go to prison for four months. The applicant
refused to enter into the recognizances. A rule
nisi having been obtained calling upon the
magistrate to shew cause why he should not
state a Case, the magistrate filed an affidavit
in which he stated that the applicant had been
twice previously directed to find sureties to
keep the peace ; that serious sectarian riots had
taken place in Liverpool on June 5 and 20 in
connection with processions of the applicant's
Bible class ; that the chief constable had
reasonable grounds for anticipating a breach
of the peace if the procession had taken place
on June 27 ; that a few days previously the
791
JUSTICE OF THE PEACE.
792
applicant had, in addressing a meeting, used
insulting language with reference to Roman
Catholics ; that between the date of granting
the M-arrant against the applicant and his
decision he had had to hear charges against
numbers of rioters animated by sectarian
animosities ; and that he could not use any
discretion in favour of a person who had acted
as the applicant had done : — Held, that the
rule nisi must be discharged ; that the magis-
trate had ample grounds for saying that he
would not be satisfied with anything less
than the applicant entering into his recogni-
zances to be of good behaviour; and that he
was justified in refusing to state a Case. Rex
V. Little; Wise, Ex parte, 101 L. T. 859;
74 J. P. 7; 22 Cox C.C. 225; 26 T. L. R. 8
— D.
Criminal Libel — Civil Proceedings Pending
— Injunction Granted against Publication.] —
Proceedings were taken in the High Court in
which L. claimed an injunction restraining E.
from publishing certain defamatory statements.
An interim injunction was granted, and sub-
sequently E. gave an undertaking not to
publish any further defamatory statements in
relation to L. E. having afterwards published
further statements of the same character
alleged to be libellous, L. laid an information
before a Metropolitan police magistrate charg-
ing E. with publishing a criminal libel. E.
applied for a rule for a writ of prohibition
directed to the magistrate on the ground that
L., having chosen his civil remedy, was pre-
cluded from proceeding criminally in respect
of the same subject-matter : — Held, refusing
a rule, that the magistrate had jurisdiction to
enquire whether E. had published a criminal
libel. Edgar, Ex parte, 77 J. P. 283;
29 T. L. R. 278— D.
5. Withdrawal of Justice from
Adjudicating.
Court Consisting of Stipendiary Magistrate
and Justice of Peace — Court Differing in
Opinion — Acquiescence by Justice — Magis-
trate Adjudicating Alone.] — The applicant
appeared before a Court of summary juris-
diction on a charge under the Pawnbrokers
Act, 1872, the Court consisting of a stipendiary
magistrate and a Justice of the peace. After
the evidence had been heard the Justice dis-
cussed the matter privately with the magistrate
and said that the evidence, in his opinion,
would not justify a conviction. The magis-
trate was satisfied that the case for the
prosecution was made out, and expressed this
view to the Justice, adding that he would take
upon himself the burden of adjudicating alone
on the case. Thereupon the Justice said
" Very well," and the magistrate then con-
victed the applicant of the offence, saying that
he alone was responsible for the decision, and
that the Justice was not a party thereto : —
Held, that what took place amounted to a
withdrawal by the Justice from being a party
to the decision, and that the magistrate, having
jurisdiction to decide the case himself, the con-
viction was valid. Rex v. Thomas; O'Hare,
Ex parte, 83 L. J. K.B. 351 ; [1914] 1 K.B. 32 ;
109 L. T. 929; 78 J. P. 55; 23 Cox C.C. 687
— D.
B. PROCEDURE BEFORE.
1. Information.
See also Vol. VIII. 578, 1796.
Information on Behalf of Corporation —
Malicious Damage — Right of Private Indi-
vidual to Prosecute.] — The appellant, on
behalf of the Mayor and Corporation of
London, preferred an information against the
respondents under section 22 of the Malicious
Damage Act, 1861, for damaging a tree, the
property of the Corporation. The appellant
was not formally authorised by the Corporation
to prefer the information. Before the Justices
it was contended by the respondents that as
the information was laid on behalf of a
corporate body it could only be laid by an
attorney duly appointed under the common
seal or warrant of the Corporation. The
Justices upheld this contention and dismissed
the information : — Held, that an}' person could
prefer an information for such an offence, that
the words in the information " on behalf of "
the Corporation might either be treated as
surplusage or as shewing that the appellant
prosecuted because the property was that of
the Corporation, and therefore that the Justices
were wrong in dismissing the information.
Duchesne v. Fiyich, 107 L. T. 412; 76 J. P.
377; 10 L. G. R. 559; 23 Cox C.C. 170;
28 T. L. R. 440— D.
Husband and Wife Charged Jointly in one
Information — Old Age Pension — Making False
Representations for the Purpose of Obtaining
Old Age Pension.] — A husband and wife, who
make a false representation for the purpose
of obtaining an old age pension for the wife,
can be charged jointly in one information with
the offence, under section 9, sub-section 1 of
the Old Age Pensions Act, 1908, of making
a false representation for the purpose of
obtaining an old age pension, inasmuch as the
information does not charge two separate
offences, but merely charges two persons with
committing the same offence. MacPhail v.
Jones, 83 L. J. K.B. 1185 ; [1914] 3 K.B. 239 ;
111 L. T. 547 ; 78 J. P. 367 ; 12 L. G. R. 1237 ;
24 Cox C.C. 373; 30 T. L. R. 542— D.
2. Summons.
See also Vol. VIII. 581, 1797.
Absence of Seal — Objection to Yalidity.] —
The absence of a seal from a summons issued
by a Justice of the peace upon an information
or complaint is merely a defect in form, to
which, by section 1 of the Summary Juris-
diction Act, 1848, objection cannot be taken.
Rex V. Garrett-Pegge ; Brown, Ex parte,
80 L. J. K.B. 609; [1911] 1 K.B. 880;
104 L. T. 649 ; 75 J. P. 169 ; 22 Cox C.C. 445 ;
27 T. L. R. 187— D.
Per Hamilton, J. : A summons must, in
order to comply with the Summary Jurisdic-
tion Acts and Rules, have a seal af&xed to it.
'93
JUSTICE OF THE PEACE.
794
Per Avory, J. : Whether a summons need be
sealed in order to comply with the Summary
Jurisdiction Acts and Eules, quare. lb.
Service of — "Place of abode" — Estoppel. J
— " Place of abode " in section 1 of the
Summary Jurisdiction Act, 1848, does not
include a shop where the person sought to be
served does not reside. A shopkeeper in-
formed an inspector under the Sale of Food
and Drugs Act on the purchase of a sample
that the shop was his private address and he
lived there. As a fact he resided elsewhere,
and summonses were served by a police officer
on the wife of the tenant of one of the flats
in the building of which the shop formed the
ground floor. The shopkeeper had no know-
ledge of any proceedings until after he had
been convicted : — Held, that the service was
bad; and, further, that the shopkeeper was
not estopped from setting up such bad service,
as there was no evidence that he made the
statement to the inspector for the purpose of
avoiding service. Rex v. Lilley ; Taylor, Ex
parte, 104 L. T. 77; 75 J. P. 95— D.
Last or Usual Place of Abode — Lodger
only.] — The house where a defendant lodged
for a period of six weeks while temporarily
employed on work therein is not " his last or
most usual place of abode " within the mean-
ing of these words in section 12, sub-section 3
of the Petty Sessions (Ireland) Act, 1851
(c/. section 1 of the Summary Jurisdiction Act,
1848), and to leave a copy of a summons at
such house two days after the defendant has
ceased to reside there is not sufficient service.
Rex V. Cork Justices, [1911] 2 Ir. E. 258
— K.B. D.
The expression " place of abode " in sec-
tion 1 of the Summary Jurisdiction Act, 1848,
means the person's place of residence. Service
of a summons by leaving the same for him at
his lock-up office is therefore not good service.
Rex V. Rhodes; McVittie, Ex parte, 79 J. P.
527— D.
Withdrawal of Summons — Effect of.] — An
order of Justices permitting a summons for an
offence punishable on summary conviction to
be withdrawn does not amount to an acquittal
of the defendant, and a fresh summons may
subsequently be issued for the same offence.
Statement in Pickavance v. Pickavance
(70 L. J. P. 14, at p. 15; [1901] P. 60, at
p. 63), that the withdrawal of a summons
puts an end to the complaint, dissented from.
Rex V. Tyrone Justices, [1912] 2 Ir. E. 44
—K.B. D.
The withdrawal of a summons owing to a
technical informality in the proceedings is not
equivalent to a dismissal of the summons
which could be pleaded in bar to subsequent
proceedings for the same offence. Davis v.
Morton, 82 L. J. K.B. 665; [1913] 2 K.B.
479; 108 L. T. 677; 77 J. P. 223; 23 Cox C.C.
359; 29 T. L. E. 466— D.
The occupier of a beerhouse was charged
under section 1 of the Betting Act, 1853, with
using his house for the purpose of betting with
persons resorting thereto. During the hearing
of the information it was discovered that he
had not been informed at the commencement
of the hearing of his right to be tried by a
jury, and the summons was thereupon with-
drawn. A further information was subse-
quently preferred against the same person
under the same section for using his house
for the purpose of monej's being received by
him for the consideration of assurances to pay
sums of money on the happening of certain
events — namely, the winning of horse races.
The evidence on the hearing of the second
summons was substantially the same as that
given on the hearing of the first summons :
— Held, that the withdrawal of the first
summons was no bar to the subsequent
proceedings. lb.
3. Hearing.
See also Vol. VIII. 586, 1800.
Evidence — Enquiry Commenced before One
Magistrate and Completed before Another
Magistrate — Reading Depositions to Wit-
nesses.]— Where a preliminary enquiry on a
criminal charge has been commenced before
one magistrate and is completed before another
magistrate, the second magistrate, if in his
discretion he deems it advisable to do so, may,
instead of taking the evidence de novo, recall
the witnesses, have them re-sworn, read their
depositions over to them (including not only
their examination-in-chief, but also their cross-
examination and re-examination), with in-
structions that they should correct them if
necessary and then allow counsel further to
examine and cross-examine the witnesses.
Bottornley, Ex parte, 78 L. J. K.B. 547;
[1909] 2 K.B. 14; 100 L. T. 782; 73 J. P.
•246; 22 Cox C.C. 106; 25 T. L. E. 371— D.
Reception of Unsworn Evidence — Mis-trial
— Re-hearing of Case on Same Day — Second
Conviction — Validity of Second Hearing.] —
The applicant was charged before a Metro-
politan police magistrate with assaulting a
police constable in the execution of his duty.
The evidence of one of the two police constables
who gave evidence in support of the charge
was given without the police constable having
been sworn. No evidence was called on behalf
of the applicant, and the magistrate on this
evidence convicted the applicant. The atten-
tion of the magistrate having been called to
the fact that some of the evidence given
against the applicant had not been given on
oath, he, on the same day, and before the
conviction on the first hearing had been drawn
up, re-heard the case, when the police constable
was duly sworn and evidence given on behalf
of the applicant. The magistrate upon the
evidence before him on the second hearing
again convicted the applicant : — Held, that
the first hearing was a mis-trial, and that as
a conviction on the first hearing could have
been quashed owing to the improper recep-
tion of unsworn evidence, the applicant never
was in peril on that hearing, and was not
entitled to plead autrefois convict upon the
second hearing, and that therefore she was
properly convicted upon the second hearing.
Rex V. Marsham : Pethick Lawrence, Ex
parte, 81 L. J. K.B. 957; [1912] 2 K.B. 362;
107 L. T. 89; 76 J. P. 284; 23 Cox C.C. 77 r
28 T. L. R. 391— D.
795
JUSTICE OF THE PEACE.
796
Dealing with Case Summarily — Duty of
Justices.] — Semble, it is not necessary for
Justices when they ask a person charged with
an indictable offence whether he will be dealt
with summarily, to inform him that if he
elects to be dealt with summarily he thereby
loses his right of appeal. Walker v. Morgan,
76 J. P. 325— D.
Declaration of Objection by Accused to be
Tried by Court of Summary Jurisdiction —
Right to be Tried by Jury.] — Section '.) of the
Conspiracy and Protection of Property Act,
1875, gives to a person charged before a Court
of summary jurisdiction with an offence made
punishable by that Act, and for which a
penalty of 20/. or imprisonment may be
imposed, the right of making a declaration of
his objection to being tried by a Court of
summary jurisdiction to have such objection
entertained, and that thereupon the Court are
bound to exercise the power given to them
by the section and deal with the case in all
respects as if the person were charged with
an indictable offence and not an offence punish-
able on summary conviction. Rex v. Mitchell;
Liveserj, Ex parte, 82 L. J. X.B. 153; [1913]
1 K.B. 561; 108 L. T. 76; 77 J. P. 148;
23 Cox C.C. 273; 29 T. L. R. 157— D.
Right to Trial by Jury — Incorrigible
Rogue.] — Section 5 of the Vagrancy Act, 1824,
provides that Justices in petty sessions may
commit incorrigible rogues for detention with
hard labour until the next quarter sessions,
and by section 10 of the Act quarter sessions
may order such offenders to be further
imprisoned with hard labour. Section 17 of
the Summary Jurisdiction Act, 1879, provides
that a person charged before a Court of sum-
mary jurisdiction with an offence for which
he is liable to more than three months'
imprisonment and which is not an assault
may claim to be tried by a jury : — Held, that
section 17 of the Act of 1879 only applies when
the Justices at petty sessions can pass an
actual sentence of more than three months'
imprisonment, and therefore that a person
convicted as an incorrigible rogue at petty
sessions and committed until the next quarter
sessions is not entitled to claim a trial by jury,
although he may be liable to more than three
months' detention owing to the next quarter
sessions not being held within that time. Rex
V. Evans; Rex v. Connor, 83 L. J. K.B. 905;
110 L. T. 780; 24 Cox C.C. 138; 30 T. L. R.
326— CCA.
Decision by Justices to Try Case as Court
of Summary Jurisdiction — Decision during
Hearing to Commit for Trial — Jurisdiction to
Try on Indictment.] — Where Justices have a
discretion whether to deal summarily with an
accused person, or to commit him for trial,
they may exercise that discretion and commit
him for trial at any time after all the circum-
stances of the case are before them. Rex v.
Hertfordshire Justices, 80 L. J. K.B. 437;
[1911] 1 K.B. 612 ; 104 L. T. 312 ; 75 J. P.
91; 22 Cox C.C. 378; 27 T. L. R. 156— D.
The Justices decided to deal with the defen-
dant summarily, but, after all the evidence
had been given both for the prosecution and
the defence, being of opinion that the case
had assumed a serious aspect, they changed
their minds and committed him for trial : —
Held, that they had power to do so, and that
he could be tried on indictment. Ih.
Dismissal of Summons — " Extenuating cir-
cumstances."]— On an information laid by
the police against the respondent for placing a
stall on the footway of a certain street con-
trary to the provisions of a local Act, it was
proved that the stall projected over the foot-
way about sixteen inches, that in the same
street there were other stalls projecting over
the footpath causing more obstruction than
the respondent's stall, and that no proceedings
had been instituted against the owners of
those other stalls. The Justices dismissed the
information under the provisions of section 1,
sub-section 1 of the Probation of Offenders
Act, 1907, owing to the extenuating circum-
stances under which the offence was com-
mitted : — Held, that there were extenuating
circumstances, and that the Justices were
therefore justified in dismissing the informa-
tion.. Dunning v. Trainer, 101 L. T. 421;
73 J. P. 400; 7 L. G. R. 919; 22 Cox C.C.
170; 25 T. L. R. 658— D.
Withdrawal of Justice from Adjudicating.]
— See Rex v. Thomas; O'Hare. Ex parte,
ante, col. 791.
4. Warrants.
See also Vol. VIII. 596, 1805.
Appearance of Defendant by Counsel — Issue
of Warrant to Compel Defendant's Personal
Attendance — Jurisdiction.] — Where upon the
hearing of an information the defendant is
represented by counsel, and the Justices decide
to convict, they have no jurisdiction to issue
a warrant for the apprehension of the defen-
dant, for the purpose of his being identified by
witnesses for the prosecution in relation to
alleged previous convictions. Rex v.
Thompson, 78 L. J. K.B. 1085; [1909] 2 K.B.
614; 100 L. T. 970; 73 J. P. 403; 7 L. G. R.
979; 22 Cox C.C. 129; 25 T. L. R. 651— D.
A summons was taken out against the appli-
cant for exceeding the speed limit with his
motor car. The applicant did not appear
when the summons was returnable, but he
wrote to the prosecutor admitting the offence
and offering to pay the fine and all charges.
The Justices adjourned the hearing, and notice
was given to the applicant that unless he
attended a warrant would be granted for his
arrest. At the adjourned hearing the appli-
cant was not personally present, but he was
represented by a solicitor, who stated that the
applicant pleaded guilty and also admitted a
previous conviction which the police alleged
against him. The police inspector in charge
of the case having intimated that he required
the applicant's personal attendance, the
Justices granted a warrant for his arrest. A
rule nisi having been obtained by the applicant
to set aside the warrant, — Held, that there
was no justification for the issue of the
warrant, which therefore must be set aside.
Rex V. Brentford Justices; Long, Ex parte,
102 L. T. 325: 8 L. G. R. 234; 74 J. P. 110;
22 Cox C.C 304; 26 T. L. R. 225— D.
797
JUSTICE OF THE PEACE.
798
5. Orders.
See also Vol. VIII. fiOO, 1806.
Common Assault — Power to Require Defen-
dant to Find Sureties for Good Behaviour.]
— When Justices convict summarily of an
assault under section 42 of the Offences against
the Person Act, 1861, they may further order
the defendant to find sureties for good
hehaviour. Rex v. Cork Justices, [1912]
2 Ir. E. 64— K.B. D.
QucBre, per Lord O'Brien, L.C.J. , and
(ribson, J. : When the Justices acquit of the
assault, but direct the defendant to find sure-
ties, must the order state on its face facts
shewing jurisdiction to give such direction ?
Ih.
To Find Sureties for the Peace and Good
Behaviour — Shewing Jurisdiction on Face of
Order.] — An order of Justices requiring a
person to find sureties to keep the peace and be
of good behaviour must shew on its face facts
necessary to give the Justices jurisdiction to
make such order. Rex v. Londoyiderry
Justices, [1912] 2 Ir. E. 374— K.B. D.
6. Convictions.
See also Vol. VIII. 605, 1808.
No Appointment of Days for Trial of
Indictable Offences.] — Conviction of the appel-
lant, who was dealt with summarily on an
indictable charge, quashed on the ground that
no public notice had been given, in accordance
with section 20, sub-section 8 of the Summary
Jurisdiction Act, 1879, of days appointed by
the Justices for hearing indictable offences.
Walker v. Morgaji, 76 J. P. 325— D.
Power to Impose Consecutive Sentences.]
— Under section 25 of the Summary Juris-
diction Act, 1848, Justices before whom a
defendant is at one and the same time con-
victed on several charges have no jurisdiction
to impose more than two consecutive sentences.
Reg. V. Ctithush (36 L. J. M.C. 70; L. E.
2 Q.B. 379) considered. Rex v. Martin;
Smythe, Ex parte, 80 L. J. K.B. 876 : [1911]
2 K.B. 450; 105 L. T. 220; 75 J. P. 425;
22 Cox C.C. 560; 27 T. L. E. 460— D.
Informant not Present and not Represented
— Offer by Justices to Adjourn — Refusal by
Defendant's Solicitor — Waiver.] — Upon the
hearing of an information under section 1 of
the Motor Car Act, 1903, the defendant was
present with his solicitor, but the informant
was not present and was not represented by
counsel or solicitor. The informant's witnesses
were called in support of the charge, and
were examined by a police officer. The Court
thereupon announced that the case would be
adjourned, but the defendant's solicitor stated
that he preferred that it should go on.
The hearing accordingly proceeded and the
defendant was convicted : — Held, that, after
the refusal by the defendant's solicitor of the
Justices' offer to adjourn, it was not com-
petent to the defendant to object to the
conviction, under section 13 of the Summary
Jurisdiction Act, 1848, on the ground that the
informant was not present at the hearing.
Ma7j V. Beeley, 79 L. J. K.B. 852; [1910]
2 K.B. 722; 102 L. T. 326; 74 J. P. Ill;
8 L. G. E. 166; 22 Co.x C.C. 306— D.
Defendant Charged with One Offence — Four
Separate Convictions — Cruelty to Animals —
Jurisdiction." — Upon the hearing of an infor-
mation under section 2 of the Cruelty to
Animals Act, 1849, for ill-treating four ponies,
the defendant appeared, and the Justices,
after hearing the evidence, convicted him and
imposed a fine of 20/., being 5/. in respect of
each pony. Four separate convictions were
subsequently drawn up. It was not intimated
to the defendant when he was before the
Justices that he had to answer more than one
charge, nor that the fine was imposed in
respect of more than one conviction : — Held,
that, in the absence of notice to the defen-
dant that he was being tried for four offences,
the Justices had no jurisdiction to convict him
of more than one offence, and that three of the
convictions were therefore bad. Rex v.
Trafford-Rawson, 78 L. J. K.B. 1156; [1909]
2 K.B. 748; 101 L. T. 463; 73 J. P. 483;
22 Cox C.C. 173; 25 T. L. E. 785— D.
Sale by Unlicensed Person — Non-payment
of Fine and no Sufficient Distress — Term of
Imprisonment.] — Section 65, sub-section 1 of
the Licensing (Consolidation") Act, 1910, pro-
hibits the sale of any intoxicating liquor by
retail except by a licensed person, and sub-
section 2 enacts that "If any person acts in
contravention of this section, he shall be
liable ... in the case of the first offence to
a fine not exceeding fifty pounds, or to im-
prisonment with or without hard labour for
a term not exceeding one month." Section 99,
sub-section 1, provides that, " Except as other-
wise expressly provided, any offence under this
Act may be prosecuted, and every fine or for-
feiture may be recovered and enforced, in
manner provided by the Summary Jurisdiction
Acts " : — Held, that as no method of recovering
a fine imposed for a contravention of section 65
of the Licensing (Consolidation) Act, 1910, is
provided by that Act, the provisions of section 5
of the Summary Jurisdiction Act, 1879, apply;
and therefore, where a person is convicted
under section 65, and a fine exceeding 20L is
imposed, he may, on non-payment of the fine
and in default of sufficient distress, be sen-
tenced, in accordance with the scale provided
by section 5 of the Act of 1879, to a term of
imprisonment not exceeding three months.
Reg. V. Hopkins (62 L. J. M.C. 57; [1893]
1 Q.B. 621) applied. Rex v. Leach : Fritchley,
Ex parte. 82 L. J. K.B. 897 : [1913] 3 K.B. 40;
109 L. T. 313 ; 77 J. P. 255 : 23 Cox C.C. 535 ;
29 T. L. E. 569— D.
Defendant Called as Witness — Cross-
examination — Question as to Previous Con-
viction— Question not Answered — Conviction
of Defendant— Validity of Conviction.]— The
appellant was charged before a Court of
summary jurisdiction with unlawfully assault-
ing the respondent, and gave evidence on his
own behalf. In cross-examination he was
asked whether he had been previously convicted
of a similar offence. The question was dis-
799
JUSTICE OF THE PEACE.
800
allowed, but the respondent's solicitor stated
that he had a certified copy of the conviction.
The Justices convicted the appellant, but
stated that the above incident was entirely
ignored by them in arriving at their decision :
— Held, that, although the question ought not
to have been asked, yet as the decision of the
Justices was not affected by it, or by the
observation of the respondent's solicitor, the
conviction was valid. Barker v. Arnold,
80 L. J. K.B. 820; [1911] 2 K.B. 120;
105 L. T. 112 ; 75 J. P. 364 ; 22 Cox C.C. 533 ;
27 T. L. K. 374— D.
Court Consisting of Stipendiary Magistrate
and Justice of Peace — Court Differing in
Opinion — Acquiescence by Justice — Magis-
trate Adjudicating Alone.] — The applicant
appeared before a Court of summary jurisdic-
tion on a charge under the Pawnbrokers Act,
1872, the Court consisting of a stipendiary
magistrate and a Justice of the peace. After
the evidence had been heard the Justice dis-
cussed the matter privately with the magistrate
and said that the evidence, in his opinion,
would not justify a conviction. The magis-
trate was satisfied that the case for the
prosecution was made out, and expressed this
view to the Justice, adding that he would take
upon himself the burden of adjudicating alone
on the case. Thereupon the Justice said
" Very well," and the magistrate then con-
victed the applicant of the offence, saying that
he alone was responsible for the decision, and
that the Justice was not a party thereto : —
Held, that what took place amounted to a
withdrawal by the Justice from being a party
to the decision, and that the magistrate, having
jurisdiction to decide the case for himself, the
conviction was valid. Rex v. Thomas;
O'Hare, Ex parte, 83 L. J. K.B. 351; [1914]
1 K.B. 32; 109 L. T. 929; 78 J. P. 55;
23 Cos C.C. 687— D.
7. Costs of Pbosecution.
See also Vol. VIII. 619, 1814.
Borough Prosecutions — Borough with Sepa-
rate Commission of the Peace, but no Separate
Court of Quarter Sessions.] — A borough with
over 10,000 inhabitants had a separate com-
mission of the peace, but no separate Court
of quarter sessions. It had the right of
appointing and paying for its own police, and
it exercised that power by contracting with the
county in which the borough was situate for
the services of a certain number of police, for
whom it paid a fixed sum. Fines imposed by
tlie borough bench under certain statutes which
did not provide for their appropriation were
retained by the clerk to the Justices for the
borough, who, in rendering an account to the
county treasurer, deducted the costs of prosecu-
tions undertaken by the police before the
borough Justices in cases where such costs
were not remitted and were not paid by the
parties chargeable : — Held, that such costs
were not chargeable to the funds of the county,
but must be defrayed out of the borough fund.
George v. Thomas, 80 L. J. K.B. 7; [1910]
2 K.B. 951; 103 L. T. 456; 74 J. P. 398;
8 L. G. R. 849— Scrutton, J.
C. APPEAL.
1. To High Court.
See also Vol. VIII. 628, 1818.
Power to State Case — Claim for Seamen's
Wages— Order of Court— Final Order.]— Sec-
tion 33, sub-section 1 of the Summary Juris-
diction Act, 1879, empowers any person
aggrieved who desires to question a convic- J
tion, order, determination, or other proceeding ■
of a Court of summary jurisdiction, on the '
ground that it is erroneous in point of law, to
apply to the Court to State a Special Case
setting forth the facts and the grounds upon
which the proceeding is questioned. Sec-
tion 164 of the Merchant Shipping Act, 1894, J
provides that " A seaman . . . may as soon I
as any wages due to him, not exceeding fifty
pounds, become payable, sue for the same
before a Court of summary jurisdiction in or
near the place at which his service has ter-
minated, or at which he has been discharged
. . . and the order made by the Court in the
matter shall be final " : — Held, that, an order
made by a Court of summary jurisdiction
under section 164 of the Act of 1894 for the
payment of seamen's wages being a " final "
order, a " person aggrieved " is not entitled
to appeal by way of Special Case under the
provisions of section 33, sub-section 1 of the Act
of 1879. Westminster Corporation v. Gordon
Hotels (76 L. J. K.B. 482; [1907] 1 K.B. 910;
77 L. J. K.B. 520; [1908] A.C. 142) applied.
Wills V. McSherry (No. 2), 83 L. J. K.B. 596;
[1914] 1 K.B. 616 ; 110 L. T. 65 ; 78 J. P. 120 ;
12 Asp. M.C. 426— D.
Cinematograph — Licence.] — County
councils and, in the case of county boroughs,
borough councils are empowered by section 2
of the Cinematograph Act, 1909, to license
premises for the purpose of cinematograph
exhibitions. By section 5 of that Act county
councils or borough councils are empowered to
delegate the powers conferred upon them by
the Act to Justices sitting in petty sessions : —
Held, that Justices sitting in petty sessions for
the purpose of exercising the powers delegated
to them under section 5 of the Cinematograph
Act, 1909, are not a Court of summary juris-
diction, and therefore have no power to state a
Case for the opinion of the High Court. Boulter
V. Ke77t Justices (66 L. J. Q.B. 787; [1897]
A.C. 556) followed. Huish v. Liverpool Jus-
tices, 83 L. J. K.B. 133; [1914] 1 K.B. 109;
110 L. T. 38 ; 78 J. P. 45 ; 12 L. G. E. 15 ;
58 S. J. 83 ; 30 T L. R. 25— D.
Dismissal of Charge of Perjury — Order
on Prosecutor to Pay Costs.] — A charge of
perjury brought against two persons was dis-
missed by the Justices, who, being of opinion
that the charge was not made in good faith,
made an order under section 6, sub-section 3
of the Costs in Criminal Cases Act, 1908, that
the prosecutor should pay 51. 5s. as the costs
of the defence : — Held, that in making that
order the Justices were acting as a Court of
summary jurisdiction, and could be ordered to
state a Case for the opinion of the High Court.
Rex V. Allen; Hardman, Ex parte, 81 L. J.
801
JUSTICE OF THE PEACE.
802
K.B. 258; [1912] 1 K.B. 365; lOfi L. T. 101;
76 J. P. 95 ; 22 Cox C.C. 669 ; 28 T. L. R. 145
— D.
Confirming Authority — Order Declaring
District a "populous place" — Power to
Revise Order.] — Schedule 6 of the Licensing
(ConsGh(hition) Act, 1910, provides that
licensed premises in a populous place in Wales
may remain open until 11 p.m., but in districts
other than a populous place not later than
10 I'.M. By special provision 2 of the schedule
" populous place " means any area with a
population of not less than 1,000, which by
reason of the density of its population the
confirming authority of the county by order
determine to be a populous place. It provides
that an order restrictive of a previous order
shall not be made except on a revision after
the publication of a census, and that as soon
as may be after the publication of each census
the confirming authority of the county shall,
at a meeting to be specially convened for the
purpose, revise orders then in force within
their jurisdiction, and may alter or cancel any
of those orders, or may make such further
orders, if any, as they shall deem necessary to
give effect to the provisions of the Act. A
licensing district in Wales was some years ago
declared to be a " populous place," and its
population had, subsequent to such declaration,
increased, but other adjacent districts had,
owing to the opening of new collieries therein,
increased in population to a still greater extent.
In 1913 the confirming authority held that it
was no longer a " populous place," and can-
celled the previous order. An appeal from
their decision by way of a Case stated by the
confirming authority for the opinion of the
High Court was made and a preliminary
objection taken that quarter sessions had no
power to state the same : — Held, that quarter
sessions were not dependent for their power to
state a Case on the Summary Jurisdiction Acts,
and, although acting in an administrative
capacity, could state the Case submitted. Rex
V. Southampton Justices; Cardy, Ex parte
(75 L. J. K.B. 295; [1906] 1 K.B. 446),
followed. Nicholas v. Davies, 83 L. J. K.B.
1137; [1914] 2 K.B. 705; 111 L. T. 56;
78 J. P. 207 ; 30 T. L. R. 388— D.
Held also, on the merits, that it was open
to the confirming authority to raise the
standard of a " populous place," and that the
Court would not consider whether their reasons
for so doing were or were not adequate. Ih.
Special Case — Notice of Appeal — Disappear-
ance of Respondents — Impossibility of Service
of Notice of Appeal and Copy of Case —
Jurisdiction to Hear Appeal.] — On an appeal
by way of Special Case from an order by a
Court of summary jurisdiction the appellants
made every effort to give the notice of appeal
and the copy of the Case to the respondents
in the manner and within the time prescribed
by section 2 of the Summary Jurisdiction Act,
1857, but were unable to do so. Within the
same time they gave the notice and a copy of
the Case to thr; solicitor who had appeared for
the respondents before the Justices, and who
still had instructions from them to receive the
money payable to them by the appellants
under the above order and to remit it to them.
The respondents did not appear on the appeal,
nor were they represented : — Held, in the cir-
cumstances (Channell, J., hcesitante), that the
giving of the notice and the copy of the Case
could be dispensed with, and the appeal heard.
Syred V. Carruthers (27 L. J. M.C. 273;
E. B. & E. 469) followed. Foss v. Best
(75 L. J. K.B. 575 ; [1906] 2 K.B. 105) not
followed. Wills v. McSherry [No. 1), 82 L. J.
K.B. 71; [1913] 1 K.B. 20; 107 L. T. 848;
77 J. P. 65; 23 Cox C.C. 254; 29 T. L. R. 48
— D.
Service on Respondent's Solicitor —
Sufficiency of Service.] — On an appeal by way
of Special Case from an order by a Court of
summary jurisdiction, service of the notice of
appeal ajid the copy of the Case within the
prescribed time on the solicitors acting for the
respondent in those proceedings is sufficient
compliance with the requirements of section 2
of the Summary Jurisdiction Act, 1857, in the
absence of evidence that the retainer of the
solicitor has in fact been withdrawn by the
respondent ; and service on the respondent per-
sonally is not necessary. Pennell v. Uxbridge
Churchwardens (31 L. J. M.C. 92; 8 Jur. N.S.
99) followed and applied. Hill v. Wright
(60 J. P. 312) commented upon. Godman v.
Crofton (No. 2), 83 L. J. K.B. 1524; [1914]
3 K.B. 803; 111 L. T. 754; 79 J. P. 12;
12 L. G. R. 1330; 24 Cox C.C. 424— D.
Transmission of Case vfithin Three Days of
its Receipt from Justices — Case Left at Crown
Office after Office Hours on Third Day.] —
The provision of section 2 of the Summary
Jurisdiction Act, 1857, which requires the
appellant from a determination of Justices to
transmit the Case stated by them within three
days after its receipt from them, is sufficiently
complied with if the Case is left at the Crown
Ofiice before the expiration of the third day,
although after office hours. Holland v. Pea-
cock, 81 L. J. K.B. 2.56; [1912] 1 K.B. 154;
105 L. T. 957; 76 J. P. 68; 10 L. G. R. 123;
22 Cox C.C. 636— D.
Case Stated — Case Set Down before Notice
of Appeal Given.] — Where a Case stated by
Justices was set down for hearing before notice
of appeal was given or copy of the Case was
served on the respondents, — Held, that the
Court had no jurisdiction to hear the appeal in
consequence of the non-compliance with the
requirements of section 2 of the Summary
Jurisdiction Act, 1857. Hollidge v. Ruislip-
Northwood Urban Council, 77 J ! P. 126— D.
Point not Taken before Justices — Right to
Raise Point on Appeal.] — Upon an appeal
from Justices, the Court will not entertain a
point which was not taken before the Justices,
unless it is a point of law which could not have
been altered by evidence. Judgment of Ijord
Alverstone, C.J., in Gieblrr v. Manning
(75 L. J. K.B. 463, 469; [1906] 1 K.B. 709.
716) considered. Kates v. Jeffery. 83 L. J.
K.B. 1760: [1914] 3 K.B. 160; 111 L. T. 450;
78 J. P. 310 ; 12 L. G. R. 974 ; 24 Cox C.C. 324
— D.
26
803
JUSTICE OF THE PEACE.
804
Power of Court to Remit Case to Justices
for Re-trial.] — Semhle, where on a Case stated
it appears that Justices have convicted a person
on a wrong ruling of law, the Court will not
remit the Case to the Justices under section 6
of the Summary Jurisdiction Act, 1857, to be
re-tried, unless in the Case itself the Justices
request this to be done in the event of their
determination being held to be wrong. Taylor
V. Wilson, 106 L. T. 44; 76 J. P. 69;
22 Cox C.C. 647; 28 T. L. R. 97— D.
Case Stated by Quarter Sessions — Questions
of Fact.] — A public-house licence was
granted by way of transfer to one Davies, who
was the lessee of the premises under an agree-
ment with the owners, a firm of brewers.
Subsequently the terms of the agreement were
altered, and the owners received a proportion
of the takings for the purpose of paying off
Davies's liability to them. Ultimately the
owners put an end to the arrangement with
Davies and applied for a transfer to one
Hickton. The licensing Justices refused the
transfer on the ground that liquor was sold on
the premises by the firm, which was not
licensed, and that therefore the premises were
ill-conducted. On appeal to quarter sessions it
was admitted that the character of the house
was good, that Hickton was a fit and proper
person to hold a licence, and that he was in
possession. Quarter sessions held that Davies
was merely a manager, and that the house had
therefore been ill-conducted, and they dis-
missed the appeal : — Held, first, that section 2
of the Supreme Court of Judicature Act, 1894,
did not make every Case stated by quarter
sessions an appeal on the facts as well as on
law, although the High Court could decide
■whether the conclusions drawn by quarter
sessions from the facts were correct ; and
secondly, that there was no evidence that the
owners had been selling their own beer on the
premises, and therefore the decision of quarter
sessions was wrong. Hickton v. Hodgson.
110 L. T. 380; 78 J. P. 93; 30 T. L. R. 221
— D.
2. To Quarter Sessions.
See also Vol. VIII. 649. 1822.
Appeal to Quarter Sessions — Order to Take
Down or Repair Dangerous Wall.] — Sec-
tion 24 of the Petty Sessions (Ireland) Act,
1851, gives a right of appeal to quarter sessions
from (inter alia) an order of Justices for pay-
ment of any penal or other sum exceeding 20s.
or for the doing of anything at a greater
expense than 40.s. : — Held, that no appeal lies
under this section from an order of Justices
made under section 75 of the Towns Improve-
ment Clauses Act, 1847, ordering the owner of
a dangerous wall to take it down, rebuild or
repair it, even though the expense involved in
doing the work may exceed 40s. Rex \. Cork
(Recorder). [1913] 2 Ir. R. 35— K.B. D.
Notice — Successful Objector to Renewal
— " The party against whom the appeal
shall be brought " — Costs.] — Where an
appeal is brought from the refusal of the
renewal of a music licence the person who
successfully objected to the renewal is not,
within section 262 of the Manchester Police
Act, 1844, " the party against whom the
appeal shall be brought," and therefore notice
in writing of such appeal need not be served
upon him, and costs cannot be given against
him under section 263. For the purposes of
section 262 only the Justices who refused the
renewal are the parties against whom the
appeal is brought, but they are not parties in
the sense that costs can be given against them
under section 263. Rex v. Ashton ; Walker,
Ex parte, 85 L. J. K.B. 27: 113 L. T. 696;
79 J. P. 444— D.
Prisoner Consenting to Summary Trial —
Indecent Assault upon Child.] — By sec-
tion 128, sub-section 2 of the Children Act,
1908, " The First Schedule to the Summary
Jurisdiction Act, 1879, shall include the offence
mentioned in the Second Schedule to this Act
in the same manner as if that schedule formed
part of the First Schedule to the Summary
Jurisdiction Act, 1879." The offence referred
to is committing an indecent assault upon a
child or young person : — Held, that the effect
of the enactment is to place that offence in
the same category as the other offences men-
tioned in the First Schedule to the Act of
1879, and that where a person charged with
such an assault consents under section 12 to
be dealt with summarily he has no right of
appeal to quarter sessions. Rex v. Dickinson ;
Davis, Ex parte, 79 L. J. K.B. 256; [1910]
1 K.B. 469; 102 L. T. 48; 74 J. P. 76;
22 Cox C.C. 249— D.
Non-payment of Poor Rate — Issue of Dis-
tress Warrant — Levy — "Order of a Court of
summary jurisdiction" — Procedure on Appeal
— Recognisance.] — An appeal to quarter ses-
sions under section 7 of 17 Geo. 2. c. 38, by a
person aggrieved by a distress for non-payment
of a poor rate is not an appeal from an
" order " of a Court of summary jurisdiction
within section 31 of the Summary Jurisdiction
Act, 1879, and the appeal is therefore not
subject to the conditions and regulations
prescribed by that section. Rex v. London
Justices (68 L. J. Q.B. 383; [1899] 1 Q.B.
532) applied. Rex v. Lincolnshire Justices,
81 L. J. K.B. 967; [1912] 2 K.B. 413;
107 L. T. 170; 76 J. P. 311; 10 L. G. R. 703;
23 Cox C.C. 102— D.
Time within which Recognisances to be
Entered into.] — The applicants having been
convicted before a magistrate on May 21,
1912, desired to appeal to quarter sessions.
Under section 31, sub-section 2 of the
Summary Jurisdiction Act, 1879, they had till
May 28 within which to give notice of appeal,
but they in fact gave such notice on May 25.
On May 29 they attended before the magistrate
to enter into the recognisances as required by
section 31, sub-section 3 of the Act of 1879,
but the magistrate refused to take the recog-
nisances on the ground that, as more than
three days had elapsed since the date of the
notice of appeal was given, the time allowed
by section 31, sub-section 3, had expired. On
an application for a mandamus directing the
magistrate to take the recognisances. — Held,
805
JUSTICE OF THE PEACE.
8U6
that as the time prescribed by section 31, sub-
section 3, for entering into the recognisances
had expired, a rule must be refused. Grafton
Club or Ashton, Ex parte, 76 J. P. 383;
28 T. L. E. 473— D.
Death of Appellant before Hearing —
Whether Appellant's Personal Representa-
tives Liable for Costs.] — A person was charged
before Justices with being drunk on a high-
way while in charge of a motor car. He
pleaded guilty and was sentenced to fourteen
days' imprisonment. He gave notice of appeal
to quarter sessions and entered into a recog-
nisance to appear and prosecute the appeal.
Before the quarter sessions were held at which
the appeal would have been heard the appellant
died. Counsel appeared at quarter sessions
and informed the Court that the appellant had
died, and he also made a statement that the
appellant would have been able to put a
different complexion on the case if lie had been
alive. The quarter sessions made an order
that the appeal should be dismissed with costs
to be paid by the personal representatives of
the appellant : — Held, that the personal repre-
sentatives had not become parties to the
proceedings and that there was no jurisdiction
to order them to pay the costs. Rex v. Spokes ;
Buckley, Ex parte, 107 L. T. 290; 76 J. P.
354; 23 Cox C.C. 141; 28 T. L. E. 420— D.
Convictions for Wilful Damage and Tres-
pass— Notice of Appeal to Quarter Sessions —
Appeal not Entered or Prosecuted — Order for
Payment of Respondent's Costs of Appeal —
Certiorari — Refusal of High Court to Grant
Order Nisi — Jurisdiction — " Criminal cause or
matter."] — Where a Court of quarter sessions
has made an order under section 6 of the
Quarter Sessions Act, 1849, for the payment
to the respondent of the costs of an appeal
against a conviction by Justices in petty
se.ssions for trespass or for wilful damage,
imposing a fine and costs or in default of
payment to be imprisoned, the appellant not
having either entered or prosecuted such appeal
after having given notice of appeal, such order
for costs is one made in a " criminal matter,"
and under section 47 of the Judicature Act,
1873, no appeal lies to the Court of Appeal
from the refusal of the High Court to grant
an order nisi for a writ of certiorari to remove
such order for costs into the High Court. Rex
V. Wiltshire Justices; Jay, Ex parte, 81 L. J.
K.B. 518; [1912] 1 K.B. 566; 106 L. T. 364;
76 J. P. 169; 10 L. G. E. 353; 56 S. J. 348;
28 T. L. E. 255; 22 Cox C.C. 737— C.A.
D. SITTINGS OF QUAETEE SESSIONS.
Authority to Fix Place at which Courts
shall Sit.]— The London County Council, and
not the standing joint committee of quarter
sessions and County Council, has the duty to
decide at what place or places within the
County of London the Courts of quarter
sessions shall sit. London Quarter Sessions
V. London County Council {No. 1), 104 L. T.
923: 9 L. G. E. 1239; 75 J. P. 455;
27 T. L. E. 473-D.
Right to Determine Character of Accommo-
dation.]—While the London County Council
and not the standing joint committee of
quarter sessions and County Council, has the
duty to decide as to the site within the County
of London at which the Courts of quarter
sessions shall sit, the power and duty of
determining the character of the accommoda-
tion to be provided on that site are vested in
the joint committee, and when that committee
has come to a decision thereon the County
Council must provide the accommodation
demanded. London Quarter Sessions v. Lon-
don County Council (No. 2), 75 J. P. 459;
9 L. G. E. 1239; 55 S. J. 716; 27 T. L. E
567— D.
E. JUEISDICTION OF QUAETEE SES-
SIONS AS TO INDICTABLE OFFENCES.
Living on Earnings of Prostitution — Proce-
dure on Indictment — Charge in Respect of
One Specified Day only — Validity of Indict-
ment— Admissibility of Evidence of Similar
Offences on other Days.] — In an indictment
for the offence of knowingly living on the
earnings of prostitution a male person can
properly be charge with having committed the
offence on one specified day only, and evidence
of the offence having been committed on other
days is admissible to prove the offence on the
specified day. An indictment for such offence
after a previous conviction for a similar offence
can, under sub-section 5 of the Criminal Law
Amendment Act, 1912, be tried by a Court of
quarter sessions. Rex v. Hill; Rex v. Church-
man, 83 L. J. K.B. 820; [1914] 2 K.B. 386;
110 L. T. 831 ; 78 J. P. 303; 24 Cox C.C. 150
—CCA.
Recognisances — Felony — Conviction on
Indictment — Binding Over on Conditions to
Come up for Sentence — Breach of Condition
— Povirer to Sentence.] — A prisoner, convicted
of felony on indictment at quarter sessions,
was bound over in recognisances to come up
for judgment when called upon, and {inter
alia) to abstain from intoxicating liquor, but on
breach of the latter condition he was brought
before the Court of quarter sessions for sen-
tence : — Held, that, although it was probable
that there was no power to sentence him con-
ferred by section 6, sub-section 5 of the Proba-
tion of Offenders Act, 1907, which apparently
deals only with prisoners bound over by a
Court of summary jurisdiction to appear for
conviction and sentence, the Court of quarter
sessions, having duly bound the prisoner over
under section 1, sub-section 2 of the Act, had
an inherent power to pass the postponed
sentence on the prisoner so brought before it.
Rex V. Spratling, 80 L. J. K.B.'" 176; [1911]
1 K.B. 77; 103 L. T. 704; 75 J. P. 39:
22 Cox C.C. 348; 55 S. J. 31; 27 T. L. E. 31
—CCA.
F. COMPELLING JUSTICES TO DO
THEIE DUTY.
See also Vol. VIU. 676. 1825.
Dismissal of Complaint — Evidence on
Behalf of Defendant Improperly Admitted —
Refusal of Justices to State Case.) — Where
807
JUSTICE OF THE PEACE— LAND.
808
Justices have dismissed a complaint, the Court
will not grant a mandamus to compel them to
state a Case on the ground that evidence
tendered on behalf of the defendant, and
objected to by the complainant, was improperly
admitted, the evidence given on behalf of the
complainant being such as would have justified
the Justices in dismissing the complaint. Rex
V. Cork Justices, [1914] 2 Ir. E. 249— K.B. D.
G. CLERKS TO JUSTICES.
See also Vol. VIII. 691, 1829.
Appointment.] — The appointment of petty
sessions clerk is a ministerial and not a
judicial act, and it is not necessary that it
should be made in open Court. Rex v. Carlow
Justices, [1911] 2 Ir. R. 382— D.
LADING (BILL OF).
See SHIPPING.
LAND.
Adjoining Owners — Extraordinary Misfor-
tune— Right to Protect Land — Liability for
Damage to Adjoining Land.] — The owner or
occupier of land has a right to repel an extra-
ordinary misfortune coming to him by way of
his neighbour's land, though the effect may be
to transfer the mischief from his own land to
that of his neighbour. Therefore where the
respondent endeavoured to drive a swarm of
locusts, which were moving from the appel-
lant's land, away from his own land, and so
caused them to remain on the appellant's
land, — Held, that he was not liable for the
damage thereby caused to the appellant's
crops. Greyvensteyn v. Hattingh. 80 L. J.
P.O. 158; [1911] A.C. 355; 104 L. T. 860;
27 T. L. R. 358— P.C.
Licence — Injury to Infant from Heap of
Stones Deposited by Landowner — Infant mere
Licensee on Land — Non-liability of Land-
owner.]— A landowner who allows persons,
whether adults or children, to come on to his
land is not liable for an accident which happens
to one of them there unless the coming on to
the land was the result of allurement or invita-
tion, or unless the accident was due to some-
thing in the nature of a concealed trap or to
something dangerous and outside the ordinary
use of the land which the landowner brought
on to it without warning the licensee. Latham
V. Johnson, 82 L. J. K.B. 258; [1913] 1 K.B.
398; 108 L. T. 4; 77 J. P. 137; 57 S. J. 127;
29 T. L. R. 124— C. A.
A child of two and a half years of age came
unaccompanied on to land belonging to the
defendants, who were aware that children were
in the habit of coming there to play. Whilst
on the land the child was injured by the fall
of a stone from a heap of stones deposited there
by the defendants : — Held (reversing the deci-
sion of Scrutton, J.), that the child was not
entitled to recover damages from the defen-
dants for negligence. The child was at most
a mere licensee, while the use of the land by
the defendants had been perfectly normal, and
the heap of stones did not constitute a trap.
Cooke V. Midland Great Western Railway of
Ireland (78 L. J. P.C. 76; [1909] A.C. 229)
explained and distinguished. lb.
Tort — Embankment Raised by Owner to M
Protect against Flood — Consequent Damage ■
to other Land — Damnum absque Injuria.] —
Every owner of land is entitled, provided he
acts with reasonable care and skill, and pro-
vided he uses only reasonable and usual means
for that purpose, to do what is necessary to
protect himself or protect his land against
damage by anticipated flood. Accordingly,
where a landowner erects an embankment on
his own ground to prevent natural flooding
waters which by the lie of the ground would
come upon his land from doing so, and in
consequence the water floods other land and
does damage, it is a case of damnum absque
injuria. Maxey Drainage Board v. Great
Northern Railway, 106 L. T. 429; 10 L. G. R.
248; 76 J. P. 236; 56 S. J. -275-0.
Yorkshire — Registration — Mortgage —
Priority.] — An incumbrancer on an interest
in the proceeds of sale of real estate in York-
shire settled upon trust for sale but with power
to postpone conversion obtains no priority
over prior incumbrancers of such interest by
registering his mortgage deed, and the priori-
ties of such incumbrancers are determined by
the dates of their respective notices to the
trustees. This is so, although the land in fact
is not sold. Arden v. Arden (54 L. J. Ch. 655 ;
29 Ch. D. 702) followed. Gresham Life Assur-
ance Society v. Crowther, 84 L. J. Ch. 312;
[1915] 1 Ch. 214; 111 L. T. 887 ; 59 S. J. 103
— C.A.
Decision of Astbury, J. (83 L. J. Ch. 867 ;
[1914] 2 Ch. 219j, affirmed. lb.
Settlement — Trust for Sale — Power to
Postpone — Conversion.! — By a settlement real
property was conveyed to trustees upon trust
for sale and to hold the proceeds on certain
trusts with power to postpone conversion for
so long as the trustees should think fit, and a
direction that while it should remain unsold
the property should be held upon such trusts
as should, as nearly as the nature of the
property would admit, correspond with the
trusts thereinbefore declared concerning the
trust fund : — Held, that there was an impera-
tive trust to convert, and the property must be
treated as converted for the purposes of the
Yorkshire Registries Act, 1884, even although
no sale had in fact taken place, and a cestui
que trust was, subject to a mortgage, entitled
to the property absolutely. lb.
Trespass to Land.] — See Trespass.
809
LANDLORD AND TENANT.
810
LANDLORD AND
TENANT.
A Commencement of Term and Duration,
809.
B. Extent of Premises Included, 810.
C. Leases, 811.
D. Tenancies from Year to Year, 812.
1. Premises Let fur Immoral Purposes,
813.
2. Recovery of Rent.
a. By action, 813.
b. Recovery by Distress. See Dis-
tress.
3. Payment of Rent, 816.
F. Termination of the Contract.
1. Generally, 816.
2. Notice to Quit, 817.
3. Forfeiture, 818.
G. Assignment, 819.
H. Covenants.
1. That Run with the Land, 819.
2. To Repair, 820.
3. For Quiet Enjoyment and Title, 823.
4. Not to Assign or Under-let, 824.
6. .4.9 to Rates and Taxes, 826.
6. In Restraint of Trade, 827.
7. As to Building and Alteration, 830.
8. For Renewal. See under Leases, C,
ante.
9. Other Covenants, 831.
I. Other Rights and Liabilities of Land-
lord AND Tenant.
1. TenanVs Right to Compensation for
Improvements under Agricultural
Holdings Acts, 832.
2. TenanVs Obligation, 836.
3. Wrongful Acts and Nuisances.
a. Liability of Landlord.
i. To Tenant, 837.
ii. To Third Parties, 837.
b. Liability of Tenant, 840.
A. COMMENCEMENT AND DURATION
OF TERM.
See also Vol. VIII. 706, 1833.
Implied Right of Way— Deed— Alteration
of Date — Parcels — Plan.] — A lessor granted a
lease of certain plots of land on which had
been erected certain then nearly finished houses.
The grant was defined by reference to a pla,n
in the margin, which shewed a narrow strip
of ground, coloured brown, at the rear of the
plots, and running along other land that
belonged to the lessor but was not included
in the lease. The lease contained no express
grant of any right of way along this strip,
nor indeed further reference to it ; but the
evidence shewed that the use of the strip was
essential to the tenants of the new houses
for the convenient ingress of coal and manure,
and for the egress of garden ruhl)ish. At the
time of the original granting of the lease the
dates of the day and month were left in blank.
but subsequently there was an alteration of
the year (with the consent of all parties), and
the blanks were also filled in. At the date of
the original granting of the lease the plots
were not yet fenced on the side towards the
strip; but at the time of the alteration they
were so fenced, and the position was indicated
for gates communicating between the plots
and the strip -.—Held, that the alteration of
the lease did not avoid it, and that the lessor
was estopped from shewing that the date in-
serted by himself was not the date from which
the demise operated, so as to prevent any one
claiming under the lease from relying upon
the circumstances existing at the date that the
lease finally bore. Held, further, that under
those circumstances an implied right of way
over the strip in question had passed under
the lease from the lessor to the lessee. Rudd v.
Bowles, 81 L. J. Ch. 277; [1912] 2 Ch. 60;
105 L. T. 864— Neville, J.
Lease of Business Premises in Name of One
Partner— Rent Paid out of Profits— Nature of
Tenancy.] — In the absence of any provision
in the partnership articles, where the lease
of the business premises was acquired prior to
the commencement of the partnership and
stands in the name of one partner, but the
firm pays the rent, the inference is that the
tenancy exists during the continuance of the
partnership only, and is not a tenancy from
year to year. Pocock v. Carter, 81 L. J. Ch.
391; [1912] 1 Ch. 663; 106 L. T. 423; 56 S. J.
362— Neville, J.
See also cases under Termination of the
Contract, F. {infra).
B. EXTENT OF PREMISES INCLUDED.
See also Vol. VIII. 718, 1835.
Demise of First-floor Offices— Flower Boxes
Fixed to Window Sill— Demise of Both Sides
of Outside Wall.] — Where the owner of a
building demises a floor or a room bounded in
part by an outside wall, the floor or room so
demised comprises both sides of the wall, unless
there is something in the lease which excludes
the demise of the outside wall. The decision
of Byrne, J., in Carlisle Cafe Co. v. Muse
Brothers ,{• Co. (67 L. J. Ch. 53) followed.
Hope V. Cowan, 82 L. J. Ch. 439; [1913]
2 Ch. 312; 108 L. T. 945; 57 S. J. 559;
29 T. L. R. 520— Joyce, J.
Demise of Rooms — External Walls In-
cluded.]—The demise of a room includes the
external walls by which it is bounded, unless
there is anything in the document itself to
limit the demise. Carlisle Cafi Co. v. Muse
Brothers .('• Co. (67 L. J. Ch. 53) followed and
explained. Dictum in Hope v. Coican
(82 L. J. Ch. 439; [1913] 2 Ch. 312) followed.
Goldfoot V. Welch, 83 L. J. Ch. 360; [1914]
1 Ch. 213; 109 L. T. 820— Eve, J.
Parol Evidence — Admissibility.] — Parol
evidence that the demise of a room does
not include the external walls is not admissible
1 where the document itself is unambiguous. lb.
811
LANDLORD AX]^ TENANT.
812
C. LEASES.
See also Vol. VIII. 809, 1838.
Arbitration Clause in Lease — Action for
Rectification.] — A lease contained the follow-
ing clause : " Any dispute, difference, or ques-
tion which may at any time arise between all
or any of the parties hereto touching the
construction, meaning, or effect of these
presents or any clause herein contained or
the rights or liabilities of the said parties
respectively, or any of them, under these
presents or otherwise howsoever, in relation to
these presents, shall be referred to the arbitra-
tion of a single arbitrator if the parties so
agree, or otherwise of two arbitrators ..."
An action was brought by the lessors against
the lessees claiming (inter alia) rectification
of the lease. Upon a motion by the lessees
that, pursuant to section 4 of the Arbitration
Act, 1889, all proceedings in the action might
be stayed and that the matters in difference
therein between the parties be referred to
arbitration, — Held, that the claim for rectifi-
cation of the lease did not fall within the
arbitration clause, and that that was a
sufficient reason for refusing to stay the
proceedings. Printing Machinery Co. v. Lino-
type and Machinery, Lini., 81 L. J. Ch. 422;
[1912] 1 Ch. 566; 106 L. T. 743; 56 S. J. 271;
28 T. L. E. 224— Warrington, J.
Covenant for Renewal on Surrender and
Payment of a Fine — Right of Perpetual
Renewal." — A lease dated August 5, 1901, for
twenty-one years from September 29, 1901,
contained a covenant by the lessors, a muni-
cipal corporation, with the lessee, that " they
the lessors will at the expiration of the first
eleven years of the term hereby granted in
case the lessee shall surrender or resign these
presents and the term of twenty-one years
hereby granted to the lessors and upon such
surrender as aforesaid and paying to the
lessors at the e.Kpiration of eleven years afore-
said or upon the 29th day of September next
after the determination of the said eleven years
the sum of seven pounds and ten shillings for
a fine for the said premises that then the
lessors shall and will at the proper costs and
charges of the lessee grant unto the lessee
a new lease of the premises hereby demised
with the appurtenances for the term of twenty-
one years to commence from the expiration
of the said eleven years at with and under the
like rents covenants and agreements as are in
these presents mentioned expressed or con-
tained and so often as every eleven years of
the said term shall expire the lessors will grant
and demise unto the lessee such new lease of
the said premises upon surrender of the old
lease as aforesaid and paying such fine of seven
pounds and ten .shillings on the day or time
hereinbefore limited or appointed." Since the
year 1824 the predecessors in title of the lessee,
and subsequently the lessee himself, had been
lessees or lessee of the corporation under a
series of leases for twenty-one years, each
lease being in the same form and containing
a covenant in similar terms to that above
stated, and such leases had been regularly
renewed at the end of the first eleven years of
the term upon payment of a fine of 71. 10s.
The first eleven years of the term of twenty-
one vears granted by the lease of August 5,
1901 i expired on September 29, 1912, but the
corporation refused to grant the lessee a new
lease in the terms of the covenant. The
lessee brought an action for specific perform-
ance : — Held, that, on the fair construction of
the covenant, so often as every first eleven
years of the term of twenty-one years last
granted should expire, the lessors covenanted
to grant a similar new lease upon the sur-
render of the old lease, and consequently that
the covenant conferred upon the lessee a per-
petual right of renewal at the expiration of
every successive period of eleven years upon
payment of the fine of 71. 10s. Hare v.
Biirges (27 L. J. Ch. 86; 4 K. & J. 45) applied.
Wynn v. Conway Corporation, 84 L. J. Ch.
203; [1914] 2 Ch. 705; 111 L. T. 1016;
78 J. P. 380; 13 L. G. E. 137; 59 S. J. 43;
30 T. L. R. 666— C. A.
Cancellation of Lease — Innocent Misrepre-
sentation.]— A lease cannot be cancelled on
the ground that its execution was brought
about by means of an innocent misrepresenta-
tion. Legge v. Croker (1 Ball & B. 506)
followed. Angel v. Jay, 80 L. J. K.B. 458;
[1911] 1 K.B. 666; 103 L. T. 809; 55 S. J.
140— D.
Knowledge of Trespass — Rescission of
Lease.] — A lessee who has known for years
of operations on the part of his lessor which
he alleges constitute a trespass to his lands,
cannot make such operations the ground of an
action for the rescission of the contract of lease.
South African Breweries v. Durban Corpora-
tion, 81 L. J. P.C. 217; [1912] A.C. 412;
106 L. T. 385— P.C.
Society — Right to Sue — Under-lease to
Society — Forfeiture of Head-lease — Claim of
Society to a Vesting Order.] — A member of
an unregistered society purported to take an
under-lease for and on behalf of his society.
j On the head-lease being forfeited for breach of
covenant the trustees of the society, suing on
behalf of the members, brought this action for
an order vesting the premises in them for the
residue of the term of the under-lease under
section 4 of the Conveyancing Act, 1892 : —
Held, that the plaintiffs were not entitled to
sue. Jarrott v. Ackerley, 113 L. T. 371;
59 S. J. 509— Eve, J.
D. TENANCIES FEOM YEAR TO YEAR.
Holding over — Implied Tenancy — Agree-
ment by Tenant to Pay Tithe Rentcharge —
Non-payment of Rent — Statute of Limita-
tions.]— A lessee for a term held over after
the expiration of the term, paying no rent,
but paying the tithe rentcharge. In an action
brought by the landlord for recovery of
possession more than twelve years after the
expiration of the lease, — Held, that the rela-
tionship betwen the parties continued after
the expiration of the term, that a tenancy
from year to year must be implied, and there-
fore the plaintiff was entitled to recover
813
LANDLORD AND TENANT.
814
possession. Neall v. Beadle, 107 L. T. 646;
57 S. J. 77— Eve, J.
E. EENT.
See aho Vol. VIII. 902, 1846.
1. Premises Let for Immoral Purposes.
Agreement for Letting Premises to Kept
Mistress — Right of Landlord to Recover
Rent.T— The i)l;uiitiff let ;i Hat to the defeu-
dant, a spinster. At the time of letting the
plaintiff's agent knew that the defendant was
the mistress of a certain man who visited her
at the fiat ; that the rent of the flat would come
through the defendant being a kept woman ;
and that the man whose mistress she was
would find the money for the rent. Certain
rent not having been paid by the defendant,
the plaintiff sued her to recover it : — Held,
that the flat being let for an immoral purpose,
the plaintiff was not entitled to recover.
Upfill V. Wright, 80 L. J. K.B. 254: [1911]
1 K.B. 506; 103 L. T. 834; 55 S. J. 189;
27 T. L. R. 160- D.
2. Kecovery of Rent.
a. By Action.
Agreement to Let for Seven Years — No
Lease — Entry into Possession — Action for
Rent Commenced before Expiration of Term
— Hearing Subsequent.' — The plaintitT agreed
in writing to let certain premises to the defen-
dant for seven years. The defendant entered
in possession, but subsequently, with the con-
sent of the plaintiff, assigned his interest in
the agreement and premises. No lease of the
premises was ever granted. Shortly before the
expiration of the term the plaintiff commenced
an action against the defendant for three
quarters' rent, but this action was heard after
the expiration of the seven years : — Held,
that specific performance of the agreement
would have been granted, and that the action
was maintainable. Gilbert for Gilbey) v.
Cossey, 106 L. T. 607 ; 56 S. J. 863— D.
Liability of Executors for Rent.] — The
executors of a deceased lessee entered into
possession of the demised lands, the rent of
which was payable in advance on November 1
in each year. Within two months of the
lessee's death an order for the administration
of his estate was made in a creditor's suit, and
a receiver was appointed by the Court who
took possession and complete control of the
leasehold premises, accounting to the Court
for any profits arising therefrom. In an action
against the executors to recover one year's
rent, which became due in advance on the
following November 1, the executors pleaded
that the leasehold premises were of no value
and that they had been unable, and would
during the period in respect of which the rent
was claimed be unable, to derive any profit or
advantage out of the leasehold premises. The
jury were unable to say whether the executors
could have made any profit out of the premises.
and the Judge thereupon gave judgment for
the year's rent. No (juestion was left to the
jury as to the value of the premises, although
there was evidence that they were not value for
the rent : -Held (Cherry, L.J., dissentiente).
that the personal liability of an executor who
has entered into possession of a testator's
leasehold property is limited to the profits
which he makes, or by the exercise of due
care, skill, and diligence could make, out of
them ; and that the appointment of the
receiver, and the possession by him of the
premises, ^jrecluded the executors from making
any profit during the period for which the rent
claimed was payable, and that they were
consequently entitled to have a verdict entered
for them; and further, that the action was
premature, as it would be impossible at the
beginning of a year to ascertain by anticipa-
tion what profits could be made out of a
particular holding during the ensuing twelve
months. Minford v. Carse, [1912] 2 Ir. R.
245— C.A.
The protection afforded to an executor by
an order for the administration of the testa-
tor's estate considered and explained by the
Lord Chancellor. lb.
Liability of Alien for Bent.] — See Alien.
Premises Let for Immoral Purposes.] —
See UpfiU V. Wright, ante, col. 813.
Tenancy for Tiiree Years — Subsequent
Lease of Premises for Seven Years to Another
Person — Lease to Commence at once — No
Attornment of Tenant — Right of Lessee to
Sue Tenant for Rent.] — The defendant in
June, 1908, took a certain flat on a three years'
agreement expiring in June, 1911. During the
currency of the defendant's tenancy a lease of
the flat for twenty-one years was granted to the
plaintiff, to commence immediately, the plain-
tiff being aware of the existence of the tenancy
agreement. The defendant, however, never
knew of the existence of the lease till after the
termination of his tenancy, the rent both bi fore
and after the grant of the lease to the plaintiff
having been paid by the defendant to the same
firm of solicitors : — Held, that the plaintiff was
entitled to sue the defendant for unpaid rent
under the tenancy agreement which had
accrued due subsequent to the grant of the
lease, notwithstanding that the defendant had
not attorned tenant to the plaintiff, inasmuch
as the lease to the plaintiff opeiated under
4 & 5 Anne, c. 16, s. 9, to pass the reversion,
together with the right to the rent under the
tenancy agreement, without the necessity of
an attornment, the effect of the statute being
to create an immediate privity between the
grantee of the lease and the tenant. Horn v.
Beard, 81 L. J. K.B. 935; [1912] 3 K.B. 181;
107 L. T. 87— D.
Fee-farm Grant — Grantees Holding in
Severalty — Joint and Several Covenants by
Grantees to Pay Entire Rent — Liability of
Assignee of One of Grantees.; — A fee-farm
grant made under the Renewable Leasehold
Conversion Act to several persons contained a
joint and several covenant on the part of the
grantees to pay the entire rent reserved by the
grant. As between themselves the grantees
ludd their respective shares of the lands in
severalty, each paying an apportioned part of
the rent. All the estate and interest of one
of the grantees in the lands subsequently
became vested in the defendant, against whom
815
LANDLORD AND TENANT.
816
an action was brought as such assignee to
recover the entire rent : — Held, that the defen-
dant was liable only for such proportion oS
the rent as was applicable to the share of the
lands which had become vested in her. Dooner
V. Odium, [1914] 2 Jr. R. 411— K.B. D.
Tenant Remaining in Possession after Sur-
render of Tenancy — Judgment Creditor —
Claim by Landlord for Rent.] — A tenant sur-
rendered his tenancy of a farm to the landlord
on March 25, 1912. By a verbal agreement of
the same date it was arranged that the tenant
should continue in occupation of the farmhouse,
rent free, but subject to the liability to give up
possession at any time when required by the
landlord. Subsequently, on July 9, 1912, a
County Court execution was levied on the
tenant's goods. The landlord thereupon
claimed payment by the bailiff of the arrears
of rent due before the surrender, out of the
proceeds of the execution, under the provisions
of section 160 of the County Courts Act, 1888 :
- — Held, that the claim for rent by the landlord
was not good as against the execution creditor.
Cox V. Leigh (43 L. J. Q.B. 123; L. R. 9 Q.B.
333) followed. Lewis v. Davies, 83 L. J.
K.B. 598; [1914] 2 K.B. 469; 110 L. T. 461;
30 T. L. R. 301— C. A.
Decision of the Divisional Court (82 L. J.
K.B. 631; [1913] 2 K.B. 37) reversed. 76.
Rent of Immediate Tenant in Arrear —
Notice to Under-tenant to Pay Rent to
Superior Landlord — Service — Sufficiency of
Personal Service.] — The provision in sec-
tion 6 of the Ijaw of Distress Amendment Act,
1908, relating to tlie service by registered post
on the under-tenant of a notice requiring
future payments of rent to be made to the
superior landlord till arrears of the immediate
tenant's rent have ben paid, is inserted only
to enable the superior landlord to effect service
by registered post if he so desires. The object
of the section is that the notice should come
to the knowledge of the under-tenant, and
personal service is sufficient. Jarvis v. Hem-
mings (No. 1), 81 L. -J. Ch. 290; [1912] 1 Ch.
462; 106 L. T. 419; 28 T. L. R. 195—
Warrington, J.
Non-payment of Rent — Recovery of Pos-
session— Moratorium — Postponement of Pay-
ments Act, 1914.] — By section 1, sub-section 1
of the Postponement of Payments Act, 1914,
and a proclamation issued in pursuance
thereof, the payment of any sum due and pay-
able before the date of the proclamation in
respect of a contract made before that time
was postponed to a specified date : — Held,
that rent due and payable before the date of
the proclamation could not be recovered in an
action in which the writ was issued after the
proclamation and before the specified date,
because not due and payable at the date of
the writ; and that as the right, given by the
agreement of tenancy, to re-enter for non-
payment of rent was only a security for the
rent, it followed that that right also did not
exist at the date of the writ and could not be
enforced in the action. Durell v. Gread,
84 L. J. K.B. 130; 112 L. T. 126; 59 S. J. 7 ;
31 T. L. R. 22— Scrutton, J.
Set-off — Mortgagee of Reversion and Tenant
— Action by Mortgagee for Rent — Counter-
claim by Lessee for Damages against Lessor
— Damages for Breach of Covenant in Build-
ing Agreement.] — The rule that an assignee
of a chose in action can set off a claim for
damages against the assignor arising out of
the same transaction has no application as
between a lessee and a mortgagee of the rever-
sion. The rule that a purchaser or mortgagee
is bound by the equities of a tenant in
possession does not apply to the right of a
tenant to damages for breach of a covenant in
a building agreement. Reeves v. Pope,
83 L. J. K.B. 771; [1914] 2 K.B. 284;
110 L. T. 503; 58 S. J. 248— C.A.
b. Recovery by Distress. See Distress.
3. Payment of Rent.
First Quarter's Rent Payable " on the 25th
of December next."] — By a lease dated
December 23, 1910, but which had been
executed earlier by the lessor, the rent was
payable by equal quarterly payments to be
made on the usual quarter days " of which the
first shall be made on the 25th day of Decem-
ber next " : — Held, that the first quarterly
payment of rent was due on December 25, 1910.
Simmer v. Watney, 28 T. L. R. 162— C.A.
Deduction of Landlord's Property Tax —
Right of Tenant to Deduct after Paying Rent
without Deduction.] — A tenant is entitled to
deduct from his rent sums paid in respect of
landlord's property tax, although since such
payment he has made a payment of rent with-
out deduction. Sturmey Motors, Lim., In re;
Rattray v. Sturmey Motors, Lim., 82 L. J.
Ch. 68; [1913] 1 Ch. 16; 107 L. T. 523;
57 S. J. 44— Warrington, J.
Severance of Reversion — No Apportionment
— Payment to One Reversioner.] — Where a
lease is granted and there is afterwards a
severance of the reversion without the rent
being apportioned, and no notice of the sever-
ance is given to the lessee, payment of the
whole rent to one of the reversioners is not a
payment to a person wrongfully claiming it
within section 9 of the Real Property Limita-
tion Act, 1833, so as to bar the claim of the
other reversioner. Mitchell v. Mosley, 83 L. J.
Ch. 135: [1914] 1 Ch. 438; 109 L. T. 648;
58 S. J. 218; 30 T. L. R. 29— C.A.
F. TERMINATION OF THE CONTRACT.
See also Vol. VIH. 970, 1850.
1. Generally.
Proviso for Determination by Lessee —
Notice to Determine — Outstanding Legal
Estate.] — An assignee of a lease with an
equitable title only cannot exercise the right,
given by a proviso in the lease, to determine
the tenancy before the expiration of the full
term by giving six months' notice. Such
notice is only valid from the person possessing
the legal estate ; and the lessor is not estopped
from asserting this contention by having
817
LANDLORD AND Tf:XAXT.
818
licensed the assignment to and received rent
from the assignee, where he did so without
full knowledge of the facts and without know-
ing that the legal estate was outstanding in
another person. Dictum of Channel, J., in
Seaward v. Drew (67 L. J. Q.B. 322) not
followed. Stait v. Fenner : Fenner v. McNab,
81 L. J. Ch. 710; [1912] 2 Ch. 504; 107 L. T.
120; 56 S. J. 669— Neville. J.
Conditions Precedent before Determina-
tionJ — Where such notice of earlier deter-
mination is given, under a proviso requiring
the payment of all rent and performance of
all covenants by the lessee up to the determina-
tion, the performance of covenants to pay the
last quarter's rent in advance and put the
premises in repair before delivering up to the
lessor is a condition precedent, the non-
fulfilment of which will prevent the determina-
tion. Grey v. Friar (4 H.L. C. 565) distin-
guished. Seaward v. Dreii: (supra) not
followed. lb.
2. Notice to Quit.
See also Vol. VIII. 975, 1851.
Sufficiency of — Tenancy for Three Years
and so on from Year to Year.] — By an agree-
ment a farm was let to the defendants for a
period of three years commencing on March 25,
1907, and so on from year to year until the
tenancy should be determined by either party
giving to the other one year's notice in writing.
On March 21, 1910, the plaintiffs gave the
defendants a notice to quit on March 25, 1911 :
— Held, that the notice so given was good.
Herron v. Martin, 27 T. L. R. 431— Darling, J.
Six Months' Notice to be given "on the
1st of March or the 1st of September in any
year" — Notice to Quit "at the earliest
possible moment" — Sufficiency. — The defen-
dants were tenants of the plaintiff under an
agreement for a yearly tenancy, which pro-
vided that the tenancy might be determined
by six months' notice on either side, to be
given on March 1 or September 1 in any year.
The defendants on December 23, 1913, sent
the following letter to the plaintiff : " We very
much regret having to give you notice to quit
the studio at Deerhurst at the earliest possible
moment. We are hoping to effect a satisfactory
re-organisation of our iilm enterprise shortly
after Christmas, in which case the notice will
be cancelled ; but should our expectations not
be realised we naturally wish to relieve our-
selves of the studio at the earliest possible
moment, unless in the meantime we see some
other use for it " : — Held, a good notice to
quit determining the tenancy on August 31,
1914. May v. Borup, 84 L. J. K.B. 823;
[1915] 1 K.B. 830; 113 L. T. 694— D.
Lease Determinable " after expiration of
three years" — Notice to Determine —
Validity.] — A lease for five years contained a
provision that " after the expiration of the
first three years of the term," if the lessees
should desire to determine the lease, and
should give to the lessors six calendar months'
previous notice in writing, such notice to
determine on any quarter day. the lease should
determine on the expiration of such notice : —
Held, that no valid notice could be given until
the expiration of the first three years and that
the lease could not therefore be determined
until the expiration of a further six months.
Gardner v. Ingram (61 L. T. 720) followed.
Lancashire and Yorkshire Bank's Lease, In re;
Davis V. Lancashire and Yorkshire Bank,
83 L. J. Ch. 577 ; [1914] 1 Ch. 522 ; 110 L. T.
571— Eve, J.
Tenancy " for two years certain and there-
after from year to year" — When Determin-
able.^— A tenancy " for two years certain and
thereafter from year to year" is not termin-
able at the end of the second, but only, by
giving notice, at the end of the third or any
subsequent year. Searle, In re; Brooke v.
Searle, 81 L. J. Ch. 375; [1912] 1 Ch. 610;
106 L. T. 458; 56 S. J. 444— Neville, J.
3. FORFEITUBE.
See also Vol. VIII. 1000, 1854.
Notice of Breaches — Sufficiency.] — A notice
under section 14 of the Conveyancing and Law
of Property Act, 1881, ought to be such
as to enable the tenant to understand with
reasonable certainty what he is required to
do, so that he may have an opportunity of
remedying the things complained of before
an action to enforce a forfeiture of the lease
is brought against him, but it need not contain
a detailed specification of the work to be done.
Fox V. Jolhj, 84 L. J. K.B. 1927; 59 S. J.
665; 31 T. L. R. 579— H.L. (E.)
Where a block of similar houses is held on
one lease, and is bound by one covenant, and
it is alleged in general terms that the covenant
has been broken throughout, and the breaches
are specified generally in a schedule, without
reference to the separate houses in detail, it
is sufficient. A vague and indefinite descrip-
tion of one breach does not vitiate the precise
and accurate description of others. 7b.
Decision of the Court of Appeal, sub nom.
Jolly V. Brown (83 L. J. K.B. 308; [1914]
2 K.B. 109), affirmed. Ih.
Relief against Forfeiture for Breach —
Covenant to Repair and Keep in Repair —
Structural Alterations — Waste. 1 — The discre-
tion entrusted to the Court under section 14,
sub-section 2 of the Conveyancing Act, 1881,
for relief against forfeiture for breach of
covenant in a lease is wide in its terms, and it
is not advisable to lay down rigid rules for
guiding that discretion so as to fetter it by
limitations which have nowhere been enacted.
Hyman v. Rose, 81 L. J. K.B. 1062; [1912]
A.C. 623; 106 L. T. 907; 56 S. J. 535;
28 T. L. E. 432— H.L. (E.)
In the case of a building which for many
years had been used as a chapel, and was being
converted into a place of public entertainment
— certain extensive interior and external altera-
tions being made, which included the removal
of staircases and the construction of new ones,
the opening of a new door, and the removal
of iron railings — relief against forfeiture was
granted by the House of Lords on the deposit
819
LANDLORD AXD TENANT.
820
by the appellants of a sum sufficient to secure
the restoration of the building to its former
condition at the end of the lease. lb.
Decision of the Court of Appeal (80 L. J.
K.B. 1011 : [1911] 2 K.B. 234) reversed. lb.
G. ASSIGNMENT.
See also Vol. VIII. 1059, 1869.
Agreement for Lease not under Seal —
Assignment of Term by Deed to Mortgagees
— No Entry by Mortgagees — Claim by Lessor
against Mortgagees for Rent — Privity of Con-
tract— Privity of Estate.] — \Yhere there is
neither privity of contract nor privity of estate
between a lessor and an assignee of the lessee,
the assignee is not liable to the lessor for rent
of the demised premises. Purchase v. Lich-
field Brewery Co., 84 L. J. K.B. 742; [1915]
1 K.B. 184; 111 L. T. 1105— D.
A lessor, by an agreement in writing not
under seal, agreed to let certain premises to
a tenant for a term of fifteen years. The
tenant assigned the term by deed to mort-
gagees, who accepted the assignment, but
never executed the deed nor took possession
of the premises. The lessor sued the mort-
gagees for rent of the premises : — Held, that
they were not liable. Dowell v. Dew (12 L. J.
Ch. 158; affirming, 1 Y. & C. C.C. 345)
and Walsh v. Lonsdale (52 L. J. Ch. 2;
21 Ch. D. 9) distinguished. lb.
Yesting of Reversion by Private Act of
Parliament — Assignee of Reversion.] — By a
lease made in 1844 the Freemen and Stallingers
of the Antient Borough of Sunderland demised
unto the lessees certain pieces or parcels of
land, messuages, tenements, and heredita-
ments, for a term of ninety-nine years at a
yearly rent. The lease subsequently became
vested in the Secretary of State for War, and
was assigned h\ him to the defendants. By a
private Act of Parliament of 1853 made in
pursuance of the desire of the Freemen and
Stallingers of the Antient Borough of Sunder-
land the reversion of these lands ;ni(i heredita-
ments became vested in the plaintiiTs : — Held,
that the plaintiffs were assignees of the original
lease within the meaning of the statute
82 Hen. 8. c. 34, and so entitled to enforce
the covenants therein contained. Sunderland
Orphan .Isiilum v. Wear (River) Commis-
sioners. 81 L. J. Ch. 269; [1912] 1 Ch. 191;
106 L. T. 288 -Warrington. J.
H. COVENANTS.
1. That Rc.v with the Land.
See also Vol. VIII. 1091. 1872.
Covenant by Covenantor with Himself and
Others — Validity. — The three trustees of a
will, as lessors, leased to one of themselves,
as lessee, a freehold house for twenty-one
years; and the lessee covenanted for himself,
his executors, administrators, and assigns,
with the lessors, their heirs and assigns (inter
alia), to keep the property in repair and not
to assign without the lessor's consent. The
lessee entered into possession of the house
and carried on his business there until he
sold the business to a company and assigned
the term to them. The company issued deben-
tures which were secured by a trust deed. By
this deed the premises were assigned to the
trustees of the debenture trust deed for the
residue of the term. In an action by the lessors
against the trustees of the debenture trust
deed, — Held, that the lease was not void in
law, but that the covenants were by one person
with himself and others jointly and, following
Ellis V. Kerr (79 L. J. Ch. 291 : [1910] 1 Ch.
529), were void; and therefore that there was
no covenant which could run with the land
and impose any personal liability on the defen-
dants. Napier v. Williams, 80 L. J. Ch. 298;
[1911] 1 Ch. 361; 104 L. T. 380; 55 S. J. 235
— Warrington, J.
2. To Repair.
See also Vol. VIII. 1100, 1874.
Tenant to Pay all Outgoings — Landlord to
Keep Exterior of House and Buildings in
Repair — Outside Drain — Repair Necessarily
Involving Improvements.] — The plaintiff let
a house to the defendant, and by the lease
the defendant covenanted to " pay and dis-
charge all rates, taxes, assessments, charges,
and outgoings whatsoever which now are or
during the said term shall be imposed or
charged on the premises or the landlord or
tenant in respect thereof (land tax and land-
lord's property tax only excepted)." The
plaintiff, as landlord, covenanted to " keep
the exterior of the said dwelling house and
buildings in repair.'" During the tenancy an
outside drain was found to be defective, and
the local authority compelled the plaintiff to
put it in proper condition. To comply with
the local authority's requirements a certain
amount of reconstruction or improvement, such
as putting in inspection chambers and ven-
tilation pipes, was involved in doing the work.
The plaintiff paid for the woik and claimed
to be recouped by the defendant in respect of
that portion of it which was attributable to
reconstruction or improvement as distinct from
repairs : — Held, that the whole expense fell
upon the plaintiff inasmuch as he could not
perform his covenant to keep the exterior of
the house and buildings in repair without
executing the reconstruction or improvement.
Howe V. Botwood, 82 L. J. K.B. 569; [1913]
2 K.B. 387; 108 L. T. 767: 29 T. L. R. 437
— D.
Tenant to Complete Fittings to Shop —
Covenant to Deliver up Demised Premises in
Good Repair — Tenant's Right to Remove
Trade Fixtures Affixed in Pursuance of
Covenant." — By the lease of an unfinished
shop the lessees covenanted at their own
expense to " complete and finish ... all
necessary fittings for the carrying on of the
trade of a provision merchant," and also to
deliver up the demised premises in good repair
at the end of the term. In pursuance of their
covenant the lessees affixed certain fittings to
the premises which became " trade fixtures,"
and they removed them shortly before the end
of the term : — Held (Vaughan Williams, L.J.,
821
LAXDLOED AND TENANT.
822
dissenting), that the covenant in the lease did
not take away the right of the lessees during
the term to remove the fittings as trade
fixtures. Moicats v. Hudson, 105 L. T. 400—
C.A.
Lessee to Repair and Keep in Thorough
Repair and Good Condition — Old House —
Decay of Wall — Liability of Lessee.] — Under
a lessee's covenants in the lease of a house to
well and substantially repair and keep in
thorough repair and good condition the demised
premises, and in such repair and condition to
deliver them up at the end of the term, the
lessee is bound to renew and rebuild any
subsidiary part of the demised premises which
is past ordinary repair. Where, therefore, the
front wall of the demised premises, consisting
of an old house, had by natural decay at the
end of the term fallen into such a state that it
had been condemned as a dangerous structure,
the lessee was held liable under his covenant
to pull down and rebuild the same. Lurcott
V. Wakeley, 80 L. J. K.B. 713; [1911] 1 K.B.
905 ; 104 L. T. 290 ; 55 S. J. 290— C.A.
Per Fletcher Moulton, L.J. — A covenant to
keep a house in good condition involves an
obligation on the part of the covenantor to do
all that is necessarj' to maintain it as a liabit-
able house, and, if necessary, to put it in that
condition, whether the means to that end
consist of repair or renewal, though the nature
of the obligation will vary according to the
age and character of the house. lb.
Proudfoot V. Hart (59 L. J. Q.B. 389;
25 Q.B.D. 42) followed. Gutteridge v. Mun-
yard (1 Moo. & R. 334: 7 Car. & P. 129),
Lister v. Lane (62 L. J. Q.B. 583: [1893]
2 Q.B. 212), and Torrens v. Walker (75 L. J.
Ch. 645; [1906] 2 Ch. 166) explained and
distinguished. 76.
Under-lease — Similar Covenants to Repair
— Notice to Lessee to Repair — Notice by
Lessee to Under-lessee — Failure to Repair —
Costs of Relief against Forfeiture — Right of
Lessee to Recover from Under-lessee.] — The
plaintiff was the holder of a lease of certain
premises, granted to his predecessors in title,
containing a covenant to repair within three
months after notice in writing. His pre-
decessors had granted an under-lease of part
of the permises to the defendant, which con-
tained a covenant in similar terms. Notice to
repair was served on the plaintiff by the
superior landlord, and the plaintiff thereupon
served a similar notice on the defendant. The
notices were not complied with, and the
superior landlord brought an action against the
plaintiff to recover possession of the premises.
The defendant obtained leave to appear and
defend. The repairs having been executed,
the plaintiff obtained an order for relief against
forfeiture on payment of costs as between
solicitor and client. In an action by the plain-
tiff for damages for the breach of the defen-
dant's covenant to repair, — Field, that the
plaintiff was not entitled to recover such costs
from the defendant in the absence of a covenant
of indemnity by him or of a covenant to
perform the covenants of the head-lease.
Dictum of Lindlev. L.J., in Ebbetts v. Con-
quest (64 L. J. Ch. 702; 65 L. J. Ch. 808;
[1895] 2 Ch. 377; [1896] A.C. 490) followed.
Clare v. Dobson, 80 L. J. K.B. 158; [1911]
1 K.B. 35; 103 L. T. 506; 27 T. L. R. 22—
Ijord Coleridge, J.
Death of Assignee of Lease — Executor de
Son Tort — Personal Liability. — The mother
of the defendant, who was the assignee of a
lease which had been granted by the plaintiffs,
died intestate, leaving no estate. The defen-
dant continued to collect the rents, and, after
paying the ground rent to the plaintiffs in his
mother's name, paid the balance over to hig
sister until her death. He afterwards collected
the rents, and paid the ground rent to the
plaintiffs, retaining the balance on behalf of
the persons who might be found to be entitled
to it. The plaintiffs, who were not aware of
the death of the defendant's mother, sent a
notice calling upon her to execute certain
repairs to the premises, and upon subsequently
ascertaining the facts they took possession of
the premises, and brought an action against
the defendant as executor de son tort for breach
of the covenant to repair contained in the
lease, and in the alternative claiming damages
against him in his personal capacity. The
County Court Judge found that the defendant
had acted as agent for his mother and sister,
and that he had never taken possession of the
term as his own nor intended to act for him-
self, and gave judgment for the defendant : —
Held, that the decision of the County Court
Judge was right, as the term had never vested
in the defendant so as to make him liable by
reason of privitv of estate. WiUiams v.
Heales (43 L. J.'C.P. 80; L. R. 9 C.P. 177)
considered. Stratford-upon-Avon Corporation
V. Parker, 83 L. J. K.B. 1309: [1914] 2 K.B.
562 ; 110 L. T. 1004 ; 58 S. J. 473— D.
Action for Breach of Covenant — Judgment
for Damages — Subsequent Bankruptcy of
Assignee — Proof Lodged in Bankruptcy — No
Assets — Money Recovered from Cestui que
Trust under Indemnity — Whether Money
Assets Divisible amongst Creditors Generally
or Belonged to Lessors.] — The assignee of a
lease was trustee thereof for his wife, and
consequently had an equitable right to be
indemnified by her against any claim under
the covenants in the lease. On the expiration
of the lease the lessors brought an action
against the assignee for arrears of rent and
damages for breach of covenant, and recovered
judgment for the amount to be found to be
due to them by an official referee, and costs.
The certified sum was 711/., but before it had
been ascertained the assignee was adjudicated
a bankrupt and the lessors lodged a proof in
the bankruptcy for that amount. The proof
was not dealt with, as there were no assets.
The lessors then obtained liberty in the bank-
ruptcy to use the name of the trustee in
bankruptcy in an action to be brought by them
against the bankrupt's wife to recover the 7111.
under her indemnity as cestui que trust, one of
the terms being that the Court in bankruptcy
was to determine whether any sum to be so
recovered should be treated as assets divisible
amongst the creditors generally, or should be
retained by the lessors. The action was com-
menced and was compromised on the payment
823
LANDLORD AND TENANT.
824
by the wife of 520/. -.—Held, that the right
of indemnity which passed to the trustee in
bankruptcy could only be used by him for the
purpose of paying the claim of the lessors
against which the bankrupt's estate was
indemnified, and that as no such payment had
been made by him the 520/. did not form part
of the general assets of the bankrupt, but
belonged to the lessors and might be retained
by them on account of their judgment debt.
The proof lodged by them was directed to be
withdrawn, but without prejudice to their right
to lodge such other proof as they might be
advised. RichaTdson, In re; St. Thomas's
Hospital, ex parte, 80 L. J. K.B. 1232; [1911]
2 K.B. 705; 105 L. T. 226— C. A.
Sufficiency of Notice of Breaches.] — See
Fox V. Jolly, ante, col. 818.
3. For Quiet Enjoyment and Title.
See also Vol. VIII. 1136, 1878.
Derogation from Grant — Building Scheme —
Easement.] — The law does not recognise any
easement of prospect or privacy. There will
be assumed in favour of a purchaser or lessee
under the doctrine that no one can derogate
from his own grant, when a vendor or lessor
sells or lets land for a particular purpose, an
obligation not to do anything to prevent its
being used for that purpose ; but it will not
be assumed that the vendor or lessor has
undertaken restrictive obligations which would
prevent his using land retained by him for any
lawful purpose whatsoever merely because he
might thereby affect the amenities or comfort-
able occupation of the property he had sold or I
let. Browne v. Flower, 80 L. J. Ch. 181;
[1911] 1 Ch. 219 ; 103 L. T. 557 ; 55 S. J. 108
— Parker, J.
Covenant for Quiet Enjoyment — Privacy —
Comfort.] — To constitute a breach of a
covenant for quiet enjoyment there must be
some physical interference with the enjoyment
of the demised premises, and a mere inter-
ference with the comfort of persons using the
demised premises by the creation of a personal
annoyance such as might arise from noise,
invasion of privacy, or otherwise, is not enough.
Ih.
Implied Covenants for Title — Lessee and
Assignee — Third-party Notice to Indemnify —
Assignment as "beneficial owner" — Rectifi-
cation of Assignment.] — A lessee and sn
intending sub-assignee of the lease executed
an agreement for sale by which it was recited
that the legal interest in the lease was out-
standing in a third party. The agreement
provided that the lessee should not be required
to get it in, nor to obtain the consent of the
third party to the assignment. The lessee
assigned " as beneficial owner "' to the sub-
assignee. The sub-assignee having been pre-
vented from availing himself of one of the
conditions in the lease, through not having the
legal estate, and having been obliged to
indemnify the lessee against the rent and
covenants in the lease, claimed damages from
the lessee for breach of the covenants for title
implied under section 7, sub-section 1 (o) of
the Conveyancing Act, 1881 : — Held, that, in
view of the agreement between the parties,
the lessee was entitled to have the assignment
rectified by inserting a proviso that his
covenants for title should not be deemed to
imply that he had power to assign the out-
standing legal estate in the term or to render
him liable by reason of the fact that the said
legal estate was not effectually assigned. Stait
V. Fenner : Fenner v. McNab, 81 L. J. Ch.
710; [1912] 2 Ch. 504; 107 L. T. 120;
56 S. J. 669— Neville. J.
4. Not to Assign ob Under-let.
See also Vol. VIII. 1156, 1882.
Not to Assign without Consent — Consent
not to be Withheld in Respect of " respect-
able and responsible person" — Limited
Company. — A limited company may be a
" respectable and responsible person " within
the meaning of a covenant by a lessee not to
assign without the consent of the lessor (such
consent not to be withheld in the case of
a " respectable and responsible person ").
Harrisoyi, Ainslie & Co. v. Barroiv-in-Furness
Corporation (63 L. T. 834) overruled on this
point. Willmott v. London Road Car Co..
80 L. J. Ch. 1; [1910] 2 Ch. 525; 103 L. T.
447; 54 S. J. 873; 27 T. L. E. 4— C.A.
The plaintiff, who was the assignee of a
lease which contained a covenant not to assign
without the consent of the lessors, unless such
consent should be unreasonably withheld,
applied to the lessors for leave to assign to
certain persons. The lessors stated that they
would not grant any licence to assign, where-
upon the plaintiff's solicitors wrote that in
view of this attitude they would advise the
issue of a writ forthwith. Before the writ was
served the lessors wrote again that they were
taking up the proposed assignees' references.
Subsequently, the lessors wrote stating that
having taken up the references they could not
accept the proposed assignees. Thereupon the
plaintiff executed an assignment of the
premises, and in this action claimed a declara-
tion that the lessors had unreasonably withheld
their consent : — Held, that the lessors" consent
had not been unreasonably withheld and
that the action failed. Shanley v. Ward,
29 T. L. R. 714— C.A.
Where an agreement for a lease provided
that the lease should contain a covenant not to
assign without the written consent of the
lessor, such consent not to be unreasonably or
vexatiously withheld, — Held, that the lessor
was, on the facts justified in refusing to give
the consent, without stating any reason for
such refusal ; and that the covenant ran with
the land and bound the assigns of the lessee
although they were not mentioned therein.
Goldstein v. Sanders, 84 L. J. Ch. 386; [1915]
1 Ch. 549; 112 L. T. 932— Eve, J.
"Lessors" Including "their executors
administrators and assigns" — "Lessees"
Including " their executors and administra-
tors."]— Where there was a covenant in a
sub-lease for over seventy years as follows.
825
LANDLORD AND TENANT.
826
" the lessees will not at any time during the
said term assign or sublet the said demised
premises or any part thereof," and the
lease defined " lessors " as including " their
executors administrators and assigns " and
lessees as including "" their executors and
administrators," it was held, first, that a
covenant against assignment or under-letting
runs with the land, although " assigns " are
not mentioned if a contrary intention is not
shewn; and secondly, that there was not a
sufficient indication of an intention that the
covenant should be personal only and should
not run with the land, either (a) in the fact
that it was a long leasehold with an absolute
prohibition of consignment, or (6) in the
definition of "lessors" and "lessees."
Goldstein v. Sanders (84 L. J. Ch. 386; [1915]
1 Ch. 549; applied. Stephenson d Co., In re;
Poole V. The Company (No. 2), 84 L. J. Ch.
563; [1915] 1 Ch. 802 ; 118 L. T. 230; 59 S. J.
429; 31 T. L. E. 331— Sargant, J.
Not to Under-let without Consent — Consent
not to be Withheld in the Case of Respectable
and Responsible Person.] — Where there is a
covenant in a lease that the lessee shall not
assign or sub-let without the lessor's consent,
with the usual proviso that such consent shall
not be withheld in the case of a respectable
and responsible person, a withholding of the
consent when asked enables the lessee to assign
or under-let to a respectable and responsible
person without breach of covenant. Lewis <f
.Ulenhy, Lim. v. Pegge, 83 L. J. Ch. 387;
[1914] 1 Ch. 782 ; 110 L. T. 93 ; 58 S. J. 155—
Neville, J.
Withholding Consent — Reasonable Time —
Under-lease without Consent.] — Where the
consent was requested within eleven days,
and there were no special circumstances to
warrant a longer notice, a failure by the lessor
to give consent within that period was held
to amount to a withholding within the meaning
of the proviso. Ih.
Consent of Lessor not to be " Unreason-
ably" Withheld — Consent Refused, except on
Condition of Insertion of Restrictive CoYe-
nant.' — The defendants, who carried on
business as a cinematograph theatre, granted
a lease of premises adjoining their own, the
lessees not to assign their lease without con-
sent in writing of the lessors, such consent not
to be " unreasonably or vexatiously " refused.
The lessees desired to assign, but the lessors
refused to consent thereto, except on condition
of the insertion in the lease of a covenant not
to use the demised premises for the purposes
of a cinematograph theatre : — Held, that in
the circumstances the consent was " unreason-
ably " refused. Premier Rinks v. Amalga-
mated Cinematograph Theatres, 56 S. J. 536 —
Joyce, J.
Not to Assign or Sub-let — Implied Cove-
nant.]— A provision in an agreement for a
lease that the lessor shall not, save for
" exceptionally strong and good reasons,"
withhold assent to an assignment or sub-lease
did not amount to an implied covenant on the
part of the lessee not to assign or sub-let
without leave of the lessor. De Soysa (Lady)
V. De Pless Pol, 81 L. J. P.C. 126; [1912]
A.C. 194; 105 L. T. 642— P.C.
Not to Under-let without Lessor's Consent
— Lease made in 1874 — Licence to Under-let
— Money Payment as Condition — Statute —
Retrospective Operation — Action by Lessee —
Declaration merely Claimed — Costs.] — The
provisions of section 3 of the Conveyancing
and Law of Property Act, 1892 — that in all
leases containing a covenant against assigning
or under-letting without licence or consent,
such covenant shall, unless the lease contains
an expressed provision to the contrary, be
deemed to be subject to a proviso to the effect
that no fine or sum of money in the nature of
a fine shall be payable for or in respect of such
licence or consent — apply to all leases, whether
made before or after the commencement of the
Act. West V. Gwynne, 80 L. J. Ch. 578;
[1911] 2 Ch. 1; 104 L. T. 759; 55 S. J. 519;
27 T. L. E. 444— C.A.
A lease dated July 31, 1874, by which
certain premises were demised for ninety-
four and a half years from March 25, 1874,
at a yearly rent of 640Z., contained a covenant
by the lessees not to assign or under-let
without the lessor's consent, and also a
proviso for re-entry on default in the perform-
ance of any of the lessees' covenants, and the
usual covenant by the lessor for quiet enjoy-
ment. In 1906 the lease was duly assigned,
and in 1909 the lessor, in reply to an applica-
tion by the assignees, stated that he was
prepared to grant them a licence for a pro-
posed under-lease for twenty-one years of
part of the demised premises at a yearly rent
of 340L on condition that he should thence-
forth receive one-half of the surplus rental to
be obtained by the assignees over and above
the rent of 640Z. payable under the lease.
The assignees brought an action against him
merely for a declaration that he was not
entitled to impose any monetary condition in
respect of the licence, and that, in the events
which had happened, the plaintiffs were
entitled to grant, without any further consent
on the part of the defendant, an under-lease
on the term.s approved by him. The defen-
dant contended that section 3 of the Act of
1892 had not a retrospective operation : —
Held, that the section interfered with existing
rights, and that " retrospective operation "
was an inaccurate term to apply to it ; and
that the plaintiffs were entitled to the
declaration asked for, together with the costs
of the action. 76.
Dicta in Andrew v. Bridgman (77 L. J.
K.B. 272: [1908] 1 K.B. 596) affirmed and
followed. JenUns v. Price (76 L. J. Ch. 507 ;
[1907] 2 Ch. 229) and Evans v. Levy (79 L. J.
Ch. 383 ; [1910] 1 Ch. 452) in effect overruled
as regards costs. Ih.
5. As TO Rates and Taxes.
See also Vol. VIII. 1160, 1887.
Lessee to Pay all " assessments charged
on the premises " — Inhabited House Duty —
Assessment of Owner of House — No Appeal —
Payment of Duty by Owner — Action to
827
LANDLORD AND TENANT.
828
Recover Amount Paid from Lessee —
"Dwelling house brought into charge."] — A
lessor, before the making of the lease, was
assessed to landlord's property tax and
inhabited house duty. By a covenant in the
lease the lessee agreed to " pay, bear and
discharge all rates, taxes, duties, assessments,
charges, impositions and out-goings what-
soever of an annual nature, whether parlia-
mentary, parochial, or of any other description,
which now are or during the term shall be
imposed or charged on the premises or the
owner or occupier in respect thereof, except
landlord's property tax," &c. After the
making of the lease the lessor, who did not
appeal against the assessment, continued to
pay the tax and duty as before. In an action
by the lessor to recover from the lessee the
amount of inhabited house duty so paid by her
during the term : — Held, that inhabited house
duty was an assessment charged upon the
premises within the meaning of the covenant.
Held, also, that the lessor, not having appealed
against the assessment, was bound thereby
and liable to pay the duty, and that, having
paid it, she could recover the amount paid
from the lessee as upon an implied request by
the lessee to pay the same and an implied
promise by the lessee to repay the lessor the
amount so paid. Juson v. Dixon (1 M. & S.
601) and MacGregor v. Clamp (83 L. J. K.B.
240; [1914] 1 K.B. 288) followed. Eastwood
V. McNah, 83 L. J. K.B. 941; [1914] 2 K.B.
361 ; 110 L. T. 701 : 12 L. G. R. 517— D.
6. Ix Restraint of Trade.
See also Vol. VIII. 1214, 1899.
Absolute Covenant or Qualifying Clause.]
— An under-lease of a house contained the
following clause: "The tenant shall use the
said premises only for private residential
purposes, but shall be entitled to carry on
thereon a high-class boarding establishment " :
— Held, on construction, that the words " but
shall be entitled to carry on thereon a high-
class boarding establishment " were not an
absolute covenant for title by the under-lessor,
but merely a qualification of the preceding
words. Milch v. Cohurn, 55 S. J. 170;
27 T. L. R. 170— Jovce, J. Reversed, 55 S. J.
441; 27 T. L. R. 372— C. A.
Agreement to Let Premises for Dancing —
Restrictive Covenant against Use of Premises
for Dancing — Collateral Agreement."^ — The
plaintiff, in an action for damages for breach
of warranty in connection with the letting to
him of certain premises, alleged that, as a
basis of negotiations which culminated in an
agreement in writing whereby the defendants
agreed to let and the plaintiff agreed to take
the premises in question, the defendants
verbally warranted to let the premises for
dancing purposes. The defendants had no
power to let the premises for such purposes
without the consent of the superior landlord,
and such consent was never in fact obtained.
The plaintiff took possession under the agree-
ment and expended considerable sums in
alterations, and now claimed to recover the
amount of such expenses less the sums received
by him during his possession of the premises.
There was no fraudulent misrepresentation : —
Held, that the plaintiff had failed to establish
the alleged parol agreement, and that even if
the evidence had established that before the
contract was entered into the plaintiff had
asked whether the premises could be let for
dancing and had been answered in the
affirmative it would only have been evidence
as to the subject-matter of the contract, and
could not control, vary, or add to the terms of
the written contract. Craicford v. White City
Rink, 57 S. J. 357 ; 29 T. L. R. 318— Eve, J.
Not to Let as " motor garage."] — A
covenant not to let premises as a " motor
garage and office " is not infringed by letting
them as a shed or house where motor cars
may be taken for temporary storage, and for
no other purpose. Derby Motor Cab Co. V.
Crompton and Evans' Union Bank (No. 2),
31 T. L. R. 185— Eve, J.
Lessor not to Let any of Adjoining Shops
for Purposes of Certain Trades — Meaning of
word "Adjoining,"] — The defendant, who
was the owner of six shops in a terrace form-
ing part of the Limes estate and numbered 1
to 6 consecutively, let No. 4 for a term of
years to the plaintiffs, who covenanted not to
carry on any trade or business except certain
specially named trades or businesses, includ-
ing that of cabinet makers, without the
defendant's licence in writing. The defen-
dant also covenanted with the plaintiffs that
he would not at any time during the continu-
ance of the lease " let or agree to let any of
the adjoining shops belonging to him on the
Limes estate " for the purpose of certain
trades or businesses, including that of cabinet
makers. Subsequently the defendant let shop
No. 6 to G. for the purpose of carrying on the
business (inter alia) of a cabinet maker. In
an action to recover damages for breach of his
covenant by the defendant, — Held, that shop
No. 6 was an " adjoining " shop within the
meaning of the covenant, which extended to
all the shops, and that the defendant, by let-
ting that shop to G., had committed a breach
of his covenant with the plaintiffs, which
entitled them to damages. Cave v. Horsell,
81 L. J. K.B. 981; [1912] 3 K.B. 533;
107 L. T. 186; 28 T. L. R. 543— C.A.
The defendants in a lease of premises to
the plaintiffs covenanted not to let the
" adjoining " premises as a motor garage and
office without giving the plaintiffs the first
refusal. The defendants having let premises
which were near to, but not next door or
physically adjoining, those let to the plaintiffs
as a lock-up show room for motor cars with-
out giving the plaintiffs the first refusal, the
plaintiffs claimed an injunction : — Held, first,
on the evidence, that the premises were not
being used as a motor garage: and secondly,
that the premises were not " adjoining " those
let to the plaintiffs, and therefore on both
grounds the plaintiffs were not entitled to an
injunction. Cave v. Horsell (81 L. J. K.B.
981 ; [1912] 3 K.B. 533) distinguished. Derby
Motor Cab Co. v. Crompton and Evans Union
Bank {No. 1), 57 S. J. 701; 29 T. L. R. 673
—Eve, J.
829
LANDLORD AND TENANT.
830
Not to Demise Adjoining Land for Erection
of other tlian Specified Buildings — Height —
Erection of Bandstand.' — The plaintiff was
the owner and occupier of certain leasehold
premises in C. Crescent, which in 1842 had
been the subject of a demise for a term of
ninety-nine years by the predecessors in title
of the D. Harbour Board, whereby the lessors
covenanted not, during the continuance of the
term, to demise or lease any part of the ground
between C. Crescent and the sea for the erec-
tion of any building other than public baths,
with or without libraries, nor suffer any such
building to be erected thereon to exceed the
height of 15 feet 7 inches. In 1880 a band-
stand was erected on the land which had been
laid out as public gardens, and in 1893 an
agreement was entered into between the board
and the corporation for a yearly tenancy of
the gardens. In 1911 the corporation executed
improvements in the gardens, and erected a
new bandstand on the site of the old, exceed-
ing the height of 15 feet 7 inches. In an
action by the plaintiff for a mandatory order
to remove the bandstand, — Held, that, upon
the true construction of the covenant con-
tained in the lease of 1842, the board's prede-
cessors had covenanted only not to demise the
land in question for the erection of other than
the specified buildings, and not to permit such
buildings, if erected, to exceed the height of
15 feet 7 inches, and that there was no cove-
nant not to permit any buildings erected
thereon to exceed that height ; and that there
being no evidence that the board had leased,
for the purpose of, or authorised the erecting
of, the bandstand, there had been no breach
of the covenant. Palliser v. Dover Cor-
poration. 110 L. T. 619: 58 S. .1. 379—
Joyce, J.
Not to Carry on Business of Fishmonger —
Prohibition against Using Premises " other-
wise than as a restaurant" — Carrying on
Fried-fish Shop — Annoyance to Neighbours.!
— A lease of premises contained a covenant
restricting the lessee from carrying on on the
premises the business of a "fishmonger," or
any other trade which should be a nuisance or
an annoyance to the tenants or occupiers of
any messuage in the neighbourhood. The
lessee let a part of the premises to a tenant
who agreed not to use the premises " other-
wise than as a restaurant," and not to do
upon the premises any act or thing which
should or might be a " nuisance, annoyance,
or inconvenience " to the lessee or her tenants
or the occupiers of any adjoining houses or
the neighbourhood. The tenant set up and
carried on on the premises the business of a
fried-fish shop for the sale of cooked fish for
consumption on and off the premises. The
occupier of the adjoining house had com-
plained of the annoyance caused by the steam
and smell from the fish shop. In an action
by the lessee for an injunction to restrain the
tenant from using the premises otherwise than
as a restaurant, or so as to be an annoyance or
inconvenience to occupiers in the neighbour-
hood,— Held, that the carrying on of the busi-
ness of a fried-fish shop was not the carrying
on cf the business of a " fishmonger " within
the meaning of the covenant in the lease ; but
that the use of the premises as a fried-fish
shop was a use of the same " otherwise than
as a restaurant," and was an " annoyance or
inconvenience " to the occupiers of adjoining
houses and the neighbourhood, and that the
lessee was entitled to the injunction claimed.
Errington v. Birt, 105 L. T. 373— Avory, J.
Premises not to be Used except for Business
of Hosier.] — In a lease of certain premises
the lessees covenanted that the demised
premises should not, without the consent in
writing of the lessors, be used in any way
except for the purpose of carrying on therein
the business or businesses of a hosier or hatter
and mercer, including the «ale of fancy waist-
coats and mackintoshes : — Held, that the sale
of overcoats (not being mackintoshes) and
sports jackets on the premises was a breach
of the covenant. Wartski v. Meaker.
110 L. T. 473; 58 S. J. 339— Joyce. J.
Condition — Yearly Tenancy — Tied Public
House — Agreement to Continue Exclusive
Dealing with Assignees of Reversion — Notice
of Agreement to Assignee of Tenancy.] — M.,
a brewer in the town of S., let a public house
to Iv. as tenant from year to year on the
terms that K. would deal with M. exclusively
for draught porter. The house, with the
licence attached, was worth far more than the
yearly rent, and, in fact, the only profit M.
had out of it was the benefit of the agreement
for exclusive dealing. D. & Co., brewers in
the town of C, purchased M.'s reversion in
the house, but did not acquire his brewery at
S., which was discontinued. D. & Co. entered
into an arrangement with K. to continue the
yearly tenancy " on the same conditions as
K. had formerly held under M." K. after-
wards assigned the house to O'L. and in-
formed O'L. " of the arrangement to deal
with D. & Co. for draught porter." O'L. did
not take any draught porter from D. & Co..
liut dealt with a rival firm : — Held, that the
condition as to exclusive dealing with D. &
Co. for draught porter was valid and binding
on O'L. O'Leary v. Deasy, [1911] 2 Ir. R.
450— C. A.
7. As TO Building and Alteration.
See also Vol. VIII. 1231, 1905.
To Build — Waiver — Covenant to Repair-
Continuing Breach — Right of Re-entry.] —
Where in a lease there is an express cove-
nant to erect buildings by a certain date,
a further continuing covenant to erect these
buildings cannot be implied from a covenant
to repair them contained in the same docu-
ment. Dictum of Stirling, J., to the con-
trary effect in Jacob v. Doivn (69 L. J. Ch.
493: [1900] 2 Ch. 156) disapproved. Stephens
V. Junior Army and Navy Stores, 84 L. J.
Ch. 56; [1914]' 2 Ch. .516: 111 L. T. 1055;
58 S. J. 808: 30 T. L. R. 697— C.A.
Where, therefore, the right of forfeiture for
not erecting iiuildings pursuant to the l^uilding
covenant has been waived, any right or for-
feiture for not repairing these buildings has
nccossarilv been waived also. lb.
831
LANDLORD AND TENANT.
832
Lessor to Erect Buildings on Demised Pro-
perty — Death of Lessor before Complete
Performance — Incidence of Liability —
Lessor's General Estate or Specific Devisees.]
— A lease of premises used as pottery works
contained a covenant by the lessor to build,
if required by the lessees during the term, an
additional oven and cone, shed and workshops
according to a specified plan, though such a
plan did not then exist. The lessor died
during the term, having devised the property
specifically. Only the workshops had been
erected at his death. Disputes between the
lessees and his executors were referred to
arbitration, and the arbitrator's award directed
the executors to erect the remaining works,
and to pay the costs of the arbitration : —
Held, that the covenant was not incident to
the relation of landlord and tenant, but was
intended to be performed forthwith, and not
to remain attendant on the lease ; and that
the expenses of performing it must be dis-
charged primarily out of the lessor's general
estate, and not by the specific devisees.
Eccles V. Mills (67 L. J. P.O. 25; [1898]
A.C. 360) applied Hughes, In re; Ellis v.
Hughes, 83 L. J. Ch. 31; [1913] 2 Ch. 491;
109 L. T. 509— Warrington, J.
Covenant not to Alter Premises without
Landlord's Consent — "The like consent" —
Consent Reasonably Withheld.] — A lessee
covenanted with his lessor not to sub-let
without the lessor's previous consent in writ-
ing, such consent not to be unreasonably
withheld, and not " without the like consent "
to make any alteration to the demised
premises, which consisted of the gardens in
the centre of a London square. The lessee
subsequently proposed to erect a building in
the said square, to which the lessor refused
his consent : — Held, that the lessor was pre-
cluded from withholding his consent unreason-
ably to any proposed alteration by the lessee,
but that in the circumstances his consent to
the proposed alteration was reaaonablv with-
held. Cartwright v. Russell, 56 S. J. 467—
Joyce, J.
No Alteration in Elevation of Buildings —
Electric Light Advertisements.] — Electric
light advertisement held not to constitute a
breach of a covenant in a lease not to permit
" any alteration in the elevation of the build-
ings or in the architectural decoration
thereof," on the ground that the covenant
referred to an alteration in the fabric and
not to an alteration in appearance caused by
temporary advertisements and frameworks
which could be removed at any time. Joseph
V. London Countif Council, 111 L. T. 276;
58 S. J. 579; 30 t. L. K. 508— Astbury. J.
8. For Eenewal. — See ante, D.
9. Other Covenants.
Sec also Vol. Vin. 1241, 1905.
Exclusion of Implied by Express Covenant.]
— In 1903 the plaintiff demised to the defen-
dant company certain lands for a term of
years, subject as to part of the lands, to a
weekly tenancy created therein by the plaintiff,
together with "all the right, benefit, and
advantage '" of the plaintiff under a memo-
randum of agreement, by which the said
tenancy had been created. By the said
memorandum of agreement the payment of the
weekly rent had been guaranteed by two
sureties ; but prior to 1903 the sureties had
been released by the plaintiff. During the
negotiations for the lease of 1903 a copy of
the said memorandum of agreement was sent
to the defendant company, but the release of
the sureties was not disclosed by the plaintiff,
nor was any requisition in relation to the con-
tract of suretyship made by the defendant
company. The lease contained an express
covenant by the plaintiff for quiet enjoyment,
which did not make any reference to the con- J
tract of suretyship. The defendant company, i|
having failed to recover the weekly rent from
the tenant, sued the sureties, who successfully
relied on their release by the plaintiff. In
an action by the plaintiff against the defen-
dant company for rent due under the lease
of 1903, the defendant company counter-
claimed damages for breach of contract to
assign to them the full benefit of the contract
of suretyship and for non-disclosure of the
discharge of the sureties, but abandoned any
claim founded on fraudulent concealment or
misrepresentation : — Held, that the presence
in the lease of the above-mentioned express
covenant negatived the existence of any im-
plied covenant or warranty that at the date
when the lease was executed the contract of
suretyship was still valid and subsisting, even
assuming that such a covenant could otherwise
have been implied from the terms of the lease,
as to which qucere. Murphy v. Bandon
Co-operative Society, [1909] 2 Ir. E. 510.
Affirmed, [1911] 2 Ir. E. 631— C. A.
Covenant by Lessee — Implied Covenant by |
Lessor.] — Where a lessor who is the owner
of certain premises demises part of the
premises to a lessee who covenants that he
will conduct it as a restaurant, there is an
implied covenant by the lessor that he will
take all reasonable steps to prevent the lessee
from being prejudiced in the business, and if
the lessor demises to another lessee another
part of the same premises and if with the
knowledge and consent of the lessor dis-
turbances occur therein which interfere with
the first lessee's business, the lessor is liable
to an injunction and damages at the suit of the
first lessee. Malzy v. Eichhoh, 32 T. L. E.
152— Darling, J.
I. OTHEE EIGHTS AND LIABILITIES
OF IvANDLOED AND TENANT.
1. Tenant's Eight to Compensation for
Improvements under Agricultural
Holdings Acts.
See also Vol. VIII. 1258, 1917.
Statutory Notice of Intention to Execute
Improvements — Agreement to Dispense with
Notice.] — In a claim by tenants of a holding
for compensation under the Agricultural
Holdings (Scotland) Act, 1908, in respect of
833
LANDLOED AND TENANT.
834
drainage improvements, it appeared that no
notice in compliance with section 3, sub-
section 1 of the Act [section 3 is in the same
terms as section 3 of the Agricultural Holdings
Act, 1908] had been given by the tenants to
the landlord, but the tenants maintained that
there had been an agreement under section 3,
sub-section 4 to dispense with notice. It was
proved that, before the improvements were
executed, the tenants had interviews with the
landlord's factor, at which, although the ques-
tion of compensation or notice was never
specifically raised, the factor was informed of
the nature of the proposed work ; and that the
tiles were sujjplied to the tenants under orders
given by the landlord's factor and were paid
for by the landlord, while the cartage and the
laying of the drains were done by the tenants
at their own expense, and that this was the
custom on the estate : — Held, that an agree-
ment to dispense with the notice required by
section 3, sub-section 1 of the Act could not
be inferred. Barbour v. M'Douall, [1914]
S. C. 844— Ct. of Sess.
Whether such an agreement must be proved
by writing, qutere. lb.
Notice of Claim — Time for.] — A clause in
a lease by which an agricultural tenant can
make no claim for compensation for improve-
ments " later than one month prior to the
determination of the tenancy " is void under
section 36 of the Agricultural Holdings (Scot-
land) Act, 1883, as being inconsistent with
the provisions of section 2, sub-section 2 of
the Agricultural Holdings Act, 1900, under
which he is entitled to claim up to the last
day of his tenancy. Cathcart v. Chalmers.
80 L. J. P.O. 143; [1911] A.C. 246;
104 L. T. 355— H.L. (Sc.)
Improvements "then" Executed.] — The
Agricultural Holdings (Scotland) Act, 1908,
s. 29, sub-s. 2 [corresponding to section 42,
sub-section 2 of the Agricultural Holdings Act,
1908], begins with these words: "Where
under a lease current on the first day of
January, 1898, a holding was at that date
in use or cultivation as a market garden . . .
and the tenant thereof has then executed
thereon . . . any improvement " : — Held, that
the word " then " means thereafter. Smith
v. Callander (70 L. J. P.O. 53; [1901] A.C.
297) followed. Taylor v. Steel-M aitland ,
[1913] S. C. 562— Ct. of Sess.
Artificial Manure Applied in Terms of the
Lease — " Benefit " Given by Landlord —
Implied Benefit — Lower Rent.] — A lease con-
tained a provision by which the tenant was
bound to apply to the land a certain amount
of farmyard manure per acre, and, so far as
he had not sufiicient farmyard manure for the
purpose, to make up the amount with artificial
manure. On quitting his holding the tenant
claimed compensation for the unexhausted
value of artificial manure applied in terms of
that provision. The landlord maintained that
the tenant was not entitled to claim com-
pensation for manure applied in terms of the
lease, in respect that he had received a
"benefit" in the sense of section 1, sub-
section 2 (a) of the Agricultural Holdings
(Scotland) Act, 1908, the benefit of having to
pay less rent than he would otherwise have
to pay -.—Held, that such an implied benefit
was not a " benefit " in the sense of the
section. M'Quater v. Fergusson, [1911]
S. C. 640— Ct. of Sess.
Per The Lord President : A " benefit " must
be one specially mentioned and allowed. 7b.
Improvements Executed in Accordance with
Lease.] — A tenant is not entitled to com-
pensation under the Agricultural Holdings
(Scotland) Act, 1908, for making an improve-
ment comprised in Schedule I. to the Act, if
the improvement was one which he was bound
under his lease to execute. Galloway (Earl)
V. M-Clelland, [1915] S. C. 1062— Ct. of Sess.
Whether, in order to entitle the tenant to
compensation, it is necessary that the operation
executed by him should result in an improve-
ment in the condition of the holding at the
waygoing as compared with its condition at
the date of entry under the lease, qucere. lb.
"Benefit" Given by Landlord — Pasture
Handed Over at Entry to Holding.]— A tenant
under a lease entered into prior to the date of
the Agricultural Holdings (Scotland) Act, 1908,
claimed compensation under that Act for an
improvement, in respect of temporary pasture
laid down by him in carrying out the system
of cultivation imposed on him by the lease.
The landlord maintained that, if compensation
fell to be awarded, the arbitrator must set
against it the temporary pasture handed over
to the tenant free of charge on his entry as
being in terms of section 1, sub-section 2 (a)
of the Act a " benefit " which the landlord
had given or allowed to the tenant in con-
sideration of his executing the improvement.
There was no reference in the lease to the
temporary pasture received by the tenant on
his entry. Semble, that this temporary pas-
ture, although it was not specially mentioned
and allowed as a benefit, must be taken into
account as being a benefit under section 1,
sub-section 2 (a). M'Quater v. Fergusson
([1911] S. C. 640) discussed. Galloway
(Earl) V. M'Clelland, [1915] S. C. 1062—
Ct. of Sess.
Valuation of Stock.]— A valuation of stock
which is to be taken over by the owner or the
new tenant from the outgoing tenant is an
arbitration and must be made in the method
prescribed by section 11, sub-section 1 of the
Agricultural Holdings (Scotland) Act, 1908,
notwithstanding any agreement in the lease
providing a different method. [This section
corresponds to section 13, sub-section 1 of the
Agricultural Holdings Act, 1908.] Stewart
V. Williamson, 80 L. J. P.C. 29; [1910]
A.C. 455; 102 L. T. 551— H.L. (Sc.)
Basis of Valuation.] — A lease of a farm
provided that the tenant should, at the end of
the lease, leave the sheep stock on the farm
to the proprietor or incoming tenant at a
valuation to be fixed by arbitration. In a
Case stated under the Agricultural Holdings
(Scotland) Act, 1908, with regard to the basis
of valuation to be adopted by the arbitrator,
— Held, that it is the duty of the arbiter to
27
835
LANDLORD AND TENANT.
836
value the sheep upon the basis of their value
to an occupant of the farm in view of the
arbiter's estimate of the return to be realised
by such occupant from them, in accordance
■with the course of prudent management, in
lambs, wool, and price when ultimately sold;
and not upon the basis either, first, of market
value only or, secondly, of the cost and loss
which would be involved in the restocking of
the farm with a like stock if the present sheep
stock were removed. Held, further, that the
arbiter is entitled to take into account both
current market prices and the special qualities
of the sheep, both in themselves and in their
relation to the ground, which in his opinion
will tend either to enhance or to diminish
the return to be realised from them by an
occupant of the farm. Williamson v.
Stewart, [1912] S. C. 235— Ct. of Sess.
Compensation for Unreasonable Disturbance
— Reasonable Opportunity to Landlord of
Making Valuation of Tenants' Stock and
Implements." — The tenants of a holding gave
notice to their landlord on May 24, 1912, that
they intended to claim compensation under
section 10 of the Agricultural Holdings (Scot-
land) Act, 1908 [corresponding to section 11
of the Agricultural Holdings Act, 1908], and
thereafter without further notice or intima-
tion to the landlord, proceeded on February 13,
1913, to sell their stock and implements by
public auction : — Held, that the tenants had
given to the landlord a reasonable opportunity
of making a valuation in terms of the Act,
there being no obligation on a tenant, on his
own initiative, to make an offer to the land-
lord of such an opportunitv. Barbour v.
M'Douall, [1914] S. C. 844— Ct. of Sess.
Observed that, where there was a displenish-
ing sale, what the tenant would be entitled
to as compensation under the section would
include not merely the expense of the sale,
but also the loss through deterioration of the
-stock upon a sale. lb.
Market Garden — Compensation — Tenancy
from Year to Year — "Contract of tenancy
current at the commencement of the Act,""' —
A tenant from year to year under a contract
of tenancy current on .January 1, 1896. of a
holding which was at that date used to the
knowledge of the landlord as a market garden,
is not, in the absence of any agreement that
the premises should be let or treated as a
market garden, entitled to compensation for
improvements executed by him or his prede-
cessors after the earliest day on which, if
notice had been given immediately after
January 1, 1896. the tenancy could have been
determined. Kedwell and Flint, In re,
80 L. J. K.B. 707: [1911] 1 K.B. 797;
104 L. T. 151 ; 55 S. J. 311— C.A.
Termination of Tenancy by Notice to Quit
— "Good and sufficient cause" — "Reasons
inconsistent with good estate management "
— Demand of Increase of Rent — Reason for
such Demand — Value of Holding Increased
by Improvements.'' — A notice to quit given
by a landlord to the tenant of an agricultural
holding in order that a higher rent may be
obtained is a " good and sufficient cause "
and is not a reason " inconsistent with good
estate management " within the meaning of
section 11 (a) of the Agricultural Holdings
Act, 1908, and excludes the operation of the
section which gives a tenant a right to com-
pensation for disturbance. Observations of
the Lord President (Lord Dunedin) on this
point in Brown \. Mitchell ([1910] S. C. 369)
approved. Bonnett and Fowler, In re,
82 L. J. K.B. 713; [1913] 2 E.B. 537;
108 L. T. 497 ; 77 J. P. 281— C.A.
Burden of Proof.] — The burden of proot
prima facie lies on an agricultural tenant
under section 11 (6) of the Agricultural Hold-
ings Act, 1908, to shew, where an increase of
rent has been demanded, that such increase
was demanded by reason of an increase in the
value of the holding due to improvements
executed by or at the cost of the tenant and »
for which he has not, either directly or in- ■
directly, received an equivalent from the ■
landlord, and that such demand has resulted
in the tenant quitting the holding. lb.
Power of Court of Appeal to Draw
Inferences of Fact. — Quaere, whether the
Court of Appeal has power to draw inferences
of fact in an appeal from the decision of a
County Court Judge on a Case stated by an
arbitrator under the provisions of the Agricul-
tural Holdings Act, 1908. lb.
Application to County Court to Set Aside
Award on Ground of Misconduct of Arbitrator
— Refusal to Admit Material Evidence —
Appeal. 1 — On the termination of a tenancy
the landlord claimed damages for breach of a
covenant to deliver up the premises "in as
good and tenantable repair as they now are,"
and the claim was referred to an arbitrator
under the provisions of the Agricultural Hold-
ings Act, 1908. The tenant applied under
the Act to the County Court to have his award
set aside on the ground that he had miscon-
ducted himself by refusing to admit evidence
as to the condition of the premises at the
commencement of the tenancy. The County
Court held that this was not misconduct
within the meaning of the Act, and dismissed
the application. The tenant appealed to the
High Court -.—Held, that section 120 of the
County Courts Act, 1888, applied and that
the appeal lay. Held also, that refusal by an
arbitrator to admit material evidence is evi-
dence of misconduct bv him as arbitrator.
Williams v. Wallis. 83 L. J. K.B. 1296:
[1914] 2 K.B. 478; 110 L. T. 999; 78 J. P.
337; 12 L. G. R. 726; 58 S. J. 536— D.
2. Tenant's Obligation.
Implied Obligation of Tenant to Cultivate
Land in a Husbandlike Manner according to
the Custom of the Country — Measure of
Damages.^ — An agricultural farmer, occupy-
ing land as yearly tenant under a parol agree-
ment, impliedly agrees with his landlord to
cultivate the whole of the land in his occupa-
tion in a husbandlike manner, according to the
custom of the country, whether the land is or
is not in good condition at the commencement
837
LANDLORD AND TENANT.
838
of his tenancy, and the measure of damage
for breach of the implied agreement is the
injury to the reversion occasioned by the
breach. The diminution in the rent that the
landlord will get on re-letting, or the allowance
which he will have to make to the incoming
tenant, may be a fair indication of the loss
sustained by the landlord by reason of the
breach, but such loss must be proved in the
usual manner. Williams v. Lewis, 85 L. J.
K.B. 40; [1915] 3 Iv.B. 493; 32 T. L. E. 42
—Bray, J.
3. Wrongful Acts and Nuisances.
a. Liability of Landlord.
i. To Tenant.
See also Vol. VIII. 1268, 1921.
Damage by Escape of Water from Lavatory
— Negligence — Liability for Malicious Act of
Third Person,] — The landlord of a building
let out as offices to different tenants placed on
the top floor a properly constructed lavatory
basin for the use of his tenants. One night
water escaped from this lavatory and damaged
goods belonging to the tenant of a lower floor.
In an action by the tenant against the land-
lord it was proved that the overflow was
caused by the tap of the lavatory having been
turned on and the pipes intentionally choked,
and the jury found that the lavatory was in
proper order when the caretaker left the build-
ing in the evening, and that the overflow
was caused by " the malicious act of some
person " : — Held, that the landlord was not
liable for the consequences of a wrongful act,
■which he could not have reasonably antici-
pated, committed by a third person. Richards
V. Lothian, 82 L.' J. P.O. 42; [1913] A.C.
263; 108 L. T. 225; 57 S. J. 281; 29 T. L. E.
281— P.O.
Unfurnished Flat — Repair of Roof — Duty
of Lessor — Whether Absolute — Breach —
Claim for Rent— Whether a Defence.]— The
lessor of an unfurnished flat, where the roof
forms no part of the demise, but remains in
the control of the lessor, owes an absolute duty
to his lessee to keep the roof in repair and is
not merely under an obligation to use reason-
able care to keep it in repair. A breach of
this duty is, however, no answer to a claim
for rent, but is a matter for cross-action.
Miller v. Hancock ([1893] 2 Q.B. 177)
considered and applied. Hart v. Rogers,
32 T. L. E. 150— Scrutton, J.
ii. To Third Parties.
See also Vol. VIII. 12G9, 1924.
Wife of Tenant of House — Injured Owing
to Defect in Stair.l— The wife of the tenant
of a dwelling house on a common stair claimed
damages against the landlord for injuries sus-
tained by her owing to the defective condition
of the stair. The defender pleaded that the
pursuer had no title to sue as she was not a
party to the lease : — Held, that the pursuer
was entitled to sue. in respect that the stair
was not included in the lease, but remained
under the control of the landlord, who was
bound to keep it reasonably safe for tenants
and others using it as a means of access to
the hou-ses. Cameron v. Young (77 L. J.
P.C. 68; [1908] A.C. 176) and Cavalier v.
Pope (75 L. J. K.B. 609; [1906] A.C. 428)
distinguished. Mellon v. Henderson, [1913]
S. C. 1207— Ct. of Sess.
Dangerous Premises — Building Let out
in Flats — Building Approached by Flight of
Steps — Steps in Possession of Landlord —
Steps not Protected by Railing.] — The
defendant was the owner of a tenement house,
the rooms on each floor of which were
separately let out in flats. The house was
entered by a front door on the ground-floor
level, which was approached from the street
by a flight of six or seven steps, which were
only protected on each side by a coping about
eight inches high, and on either side of the
steps was an area. These steps remained in
the possession of the defendant. The plain-
tiff, who lived with her husband in two rooms
on the ground floor, of which her husband
was the tenant, alleged that she tripped in
consequence of a defect in one of the steps
and fell into the area owing to the steps being
insufficiently fenced, and was injured. She
sued the defendant for damages for negligence
1 in respect of the condition of the steps. The
jury found that the plaintiff was injured
through a defect in the flight of steps, which
: consisted not in the defective condition of the
steps, as alleged by the plaintiff, but in the
j absence of a railing at the side of the steps ;
I that the defect was due to the negligence of
the defendant, but that the plaintiff knew of
the existence of the defect prior to the acci-
dent : — Held, that although, under the cir-
cumstances, the defendant was under an
implied duty towards persons using the steps
to see that there was nothing in the nature
of a trap, yet as the plaintiff knew of the
absence of the railings prior to the accident,
and the danger, if any, was patent to every
one, she voluntarily took upon herself to bear
the risk, and therefore could not recover.
Huqgett v. Miers ill L. J. K.B. 710 ; [1908]
2 K.B. 278) followed. Miller v. Hancock
([1893] 2 Q.B. 177) distinguished. Lucy v.
Baivden. 83 L. J. K.B. 523: [1914] 2 K.B.
318 ; 110 L. T. 580; 30 T. L. E. 321— Atkin, J.
Defective Condition of House.] — The
wife of the tenant of a house to which the
Housing, Town Planning. &c. Act. 1909,
applies, has no cause of action against the
landlord in respect of injuries sustained by
her by reason of the premises being out of
repair. Middleton v. Hall, 108 L. T. 804;
77 J. P. 172— Bankes. .T.
Injury to Tenant's Daughter. 1 — The under-
taking implied by section 15 of the Housing,
Town Planning. &c.. Act, 1909. in a contract
for the letting for habitation of a house at a
rent not exceeding the sum therein mentioned,
that the house shall, during the holding, be
kept by the landlord in all respects reasonably
fit for human habitation, is a purely con-
tractual obligation, and gives the tenant of
the house alone a right to sue for a breach of
839
LANDLORD AND TENANT.
840
the undertaking. Ryall v. Kidwell, 83 L. J.
K.B. 1140; [1914] 3 K.B. 135; 111 L. T.
240; 78 J. P. 377; 12 L. G. K. 997;
30 T. L. E. 508— C.A.
The daughter of the tenant of a house to
which sections 14 and 15 of the Housing,
Town Planning, &c., Act, 1909, applied, was
injured through the failure of the landlord to
keep the house in all respects reasonably fit
for human habitation : — Held, that she was
not entitled to maintain an action against the
landlord for a breach of the statutory under-
taking. Cavalier v. Pope (74 L. J. K.B. 857 ;
75 L. J. K.B. G09 ; [1905] 2 K.B. 757 ; [1906]
A.C. 428) applied. lb.
Decision of the Divisional Court (82 L. J.
K.B. 877; [1913] 3 K.B. 123) affirmed. Ih.
Injury to Tenant's Child — Demise of Single
Room in House — Flight of Steps Giving
Access to House — Gap in Railings Protecting
Steps from Area.] — The defendant was the
owner of a house containing four rooms, one
of which she let to a tenant at a weekly rent.
The house was approached from the street by
a flight of steps, on each side of which was an
area, and the steps were protected from the
area on both sides by railings. From the
railing on one side one of the upright posts
was missing, so that there was a gap in the
railing on that side. The post had been so
missing from a time before the commencement
of the tenancy. The tenant's child, a boy of
the age of three and a-half years, while playing
on the steps fell through the gap into the area,
and was seriously injured. In an action by
the infant to recover damages for personal
injuries, and by the father to recover out-of-
pocket expenses, alleging negligence on the
part of the defendant in not keeping the
railings in a reasonable safe and fit state of
repair, thus causing a danger and a nuisance
to persons lawfully using the steps, — Held,
that, there being nothing in the nature of a
trap, the defendant was not liable. Miller v.
Hancock ([1893] 2 Q.B. 177) distinguished.
Dobson V. Horsley, 84 L. J. K.B. 399; [1915]
1 K.B. 634; 112 L. T. 101; 31 T. L. R. 12—
C.A.
Visitor Injured through Defect in Outside
Stair Giving Access to Premises.] — The only
access to premises let to a tenant was by an
outside stair and gangway which formed the
access to these premises alone. All the repairs
to the stair and gangway were executed by
the landlord and not by the tenant. A visitor
to the premises having been injured through
the defective condition of the stair and gang-
way, sued the landlord for damages : — Held
(Lord Skerriugton dub.), that the landlord was
not liable in respect that, in the circum-
stances, he could not be held to have retained
possession and control of the stair and gang-
way. M'llwaine v. Stewart's Trustees, [1914]
S. C. 934— Ct. of Sess.
Injuries Sustained by Trespasser — Holding
over by Tenant.] — In an action to recover
damages for personal injuries sustained
through the negligence of the defendants,
evidence was given that the plaintiff (who was
a minor of six years of age) resided with his
parents in two rooms on the first floor of a
tenement house ; that the parents had held
these rooms on a weekly tenancy from the
defendants ; that the stairs and landings were
kept by the defendants under their own con-
trol; that on August 8, 1910, the defendant
served a notice to quit upon the parents ;
that this notice expired on the 15th ; that on
the 16th demand of possession was made ; that
on the 17th a summons under the Summary
Jurisdiction (Ireland) Act, 1851, was issued
to recover possession of the premises ; that on
the 22nd the infant plaintiff fell through an
open window, on the same landing as the
rooms, to the yard below, a distance of some
twenty-four feet ; that on the 25th an order
for possession was obtained from the magis-
trate : — Held, on these facts, that the infant
plaintiff and his parents were trespassers, and
there was therefore no obligation on the land-
lord to maintain the premises in such a con-
dition as to prevent the child falling through
the window in question. Coffee v. McEvoy,
[1912] 2 Ir. R. 95— K.B. D. Affirmed, [1912]
2 Ir. R. 290— C.A.
Whether Freeholder or Tenant Liable to
Sub-tenant.] — A tenement of eight houses
was let by the proprietor to a company, and
the individual houses were sub-let by the com-
pany to their employees. A child visiting one
of the houses, which was approached by an
outside stair common to that and to another
house, fell from the stair in consequence of
a concealed defect in the railing, and was
injured. In an action for damages against
the proprietor and the company, — Held, that
the latter were alone liable on the ground that
they had possession and control of the stair
and railing, and that in consequence of their
contract with their tenant the child was to
be regarded as being on the stair on their
invitation. Kennedy v. Shotts Iron Co.,
[1913] S. C. 1143— Ct. of Sess.
Nuisance — Rabbit Coursing — Evidence —
— Judicial Notice — Pleading.] — An owner let
his field for the holding of rabbit-coursing
matches on Sundays and Wednesdays. The
holding of the meetings was a nuisance to the
adjoining owner : — Held, that the agreement
for the use of the field amounted to a letting
and not a mere licence ; that the landlord was
only liable for the nuisance if it was the
inevitable result of the purpose for which the
land was let. Held, further, that the fact that
the rabbit coursing was an inevitable nuisance
was a fact which ought to have been pleaded,
that the Court could not take judicial notice
of such a fact, but that it must be proved by
evidence. Ayers v. Hanson, 56 S. J. 735 —
Warrington, J.
b. Liability of Tenant.
See also Vol. VIII. 1272, 1927.
Tenant's Duty to Preserve Premises from
Injury — Duty to Turn off Water when
Leaving House Empty.] — The tenant of a
villa, who left it unoccupied for a month in
winter without having either turned off the
water or informed the landlord of her intended
841
LANDLORD AND TENANT— LANDS CLAUSES ACT.
842
absence, held liable to the landlord for damage
caused by the bursting of the water pipes
owing to frost. Mickel v. M'Coard, [1913]
S. C. 896— Ct. of Sess.
LANDS CLAUSES ACT.
I. Under Compulsory Powers.
A. Notice to Treat, 841.
B. What Lands or Interests.
1. For what Purposes, 841.
2. Houses, Buildings and Manufac-
tories, 842.
II. Purchase Money, Disposal of.
A. Payment out to Persons absolutely
entitled, 843.
B. Costs of Parjment out, 844.
III. Compensation.
A. In respect of what Injuries, 845.
B. In respect of what Interests, 845.
C. In respect of what Persons, 845.
D. Principles of Assessment, 846.
E. Settling Aryiount and Practice thereon.
1. Reference to Arbitration.
a. Award, 846.
b. Costs, 847.
I. UNDER COMPULSORY POWERS.
1. Notice to Treat.
See also Vol. VIII. 1317, 1932.
Mortgaged Property — Assessing Compensa-
tion in Absence of Mortgagee — Entry by
Promoters — Right to Serve Subsequent
Notice to Treat on Mortgagee.] — Promoters
of an undertaking who have proceeded to
assess the compensation in respect of mort-
gaged premises which they are empowered to
acquire in the absence of the mortgagee, and
have entered into possession, do not thereby
lose the right to serve a subsequent notice to
treat on the mortgagee, nor will they be
restrained from exercising their statutory
powers against him. Cooke v. London County
Council, 80 L. J. Ch. 423; [1911] 1 Ch. 604';
104 L. T. 540; 75 J. P. 309; 9 L. G. R. 593
— Parker, J.
2. What Lands or Interests.
See also Vol. VIII. 1328, 1933.
a. For what Purposes.
Building Necessary for the Working of
Tramway— Residences for Staff.]— The appel-
lant company had by statute compulsory
powers of taking land " in case the construc-
tion of any tramway, or of any works or
building necessary for the working thereof
pursuant to the terms of the licence granted,
involves the acquisition of " such land. The
licence required them to construct, maintain,
and work tramways " with all . . . necessary
and convenient . . . buildings . . . for the due
and efficient working of the said tramways " :
— Held, that their compulsory powers did not
extend to taking land for the erection of
residences for the housing of their staff. West
India Electric Co. v. Kingston Corporation,
83 L. J. P.C. 380; [1914] A.C. 986; 111 L. T.
1038— P. C.
Conditions of Lease — Public Purpose —
— Provision of Residences for Government
Officers — Right to Resume Possession.] — In
order to constitute a " public purpose " in
taking land it is not necessary that the land
when taken is to be made available to the
public at large. Hamabai Framjee Petit v.
Secretary of State for India, L. R. 42 Ind.
App. 44— P.C.
The Government had, under a lease, a right,
subject to giving notice and paying compensa-
tion, to resume possession of the land granted
if they desired to use it for a public purpose.
The Government gave notice of their intention
to resume possession with the object of using
the land for the provision of residences to be
let at moderate rentals to Government officers :
— Held, that the use to which it was proposed
to put the land was a " public purpose "
within the meaning of the lease. lb.
Exercise of Powers by Congested Districts
Board.] — Where an administrative body has
been authorised by statute to take land com-
pulsorily for specified purposes, the Court will
not interfere with the exercise of such powers
if the administrative body in its discretion
bona fide intends to take land for those pur-
poses and if the land is in fact capable of
being used for them. Clanricarde (Marquess)
V. Congested Districts Board for Ireland,
13 L. G. R. 415; 79 J. P. 481; 31 T. L. R.
120— H.L. (Ir.)
b. Houses, Buildings and Manufactories.
Part of " House or other building or manu-
factory " — Requiring Promoters to take Whole
— Undertaking of Canal Company — Meaning
of "Building."] — A "building" within the
meaning of section 92 of the Lands Clauses
Consolidation Act, 1845, is something in the
nature of a house, although in ordinary
language it would not be called a house.
Observations of Brett, L.J., in Richards v.
Swansea Improvement and Tramways Co.
(9 Ch. D. 425), followed -.—Held, therefore,
that the undertaking of a canal company,
though it included, besides the canal, a
number of houses and other buildings, was
not a " building " within the meaning of
section 92, and that promoters, who desired
to take under statutory powers some pieces
of land belonging to the company, could not
be required to take the whole undertaking.
Regeyit's Canal and Dock Co. v. London
Couyity Council, 81 L. J. Ch. 377; [1912]
1 Ch. 583; 106 L. T. 745; 76 J. P. 353;
10 L. G. R. 358; 56 S. J. 309; 28 T. L. R. 248
— Warrington, J.
843
LANDS CLAUSES ACT.
844
Power of Canal Company to Convey Whole
Undertaking.] — Semble, that the canal com-
pany could have conveyed the whole under-
taking under the provisions of the Lands
Clauses Consolidation Act, 1845. lb.
Power to Acquire Part of Property Subject
to Proviso against Interference with Main
Structure — Destruction of Access to Chapel.]
— By section 18 of the London County Council
(Tramways and Improvements) Act, 1913, the
Council were given power in connection with
certain street improvements to take the parts
of properties specified in the Third Schedule
to the Act without being required or compelled
to purchase the whole of such properties, but
there was a proviso that the section was not to
" entitle the Council to take or interfere with
the main structure of any house, building, or
manufactory." Under this section the Council
served notice to treat for the acquisition of the
" forecourt, walls, gates and railings " of a
Baptist chapel specified in the Third Schedule.
The result of the taking of this forecourt and
the lowering of its level for the purpose of a
street widening would be to make access to
the chapel impossible without extensive altera-
tions to the main structure : — Held, that the
taking of the forecourt amounted to an inter-
ference with the main structure of the chapel,
and that section 18 of the special Act was
therefore inapplicable and that the Council
could not acquire compulsorily the lands
specified in the notice without taking the whole
building. Genders v. London County Council,
84 L. J. Ch. 42; [1915] 1 Ch. 1 ; 112 L. T.
365 : 79 J. P. 121 ; 13 L. G. E. 14 ; 59 S. J. 58 ;
81 T. L. R. 34— C. A.
11. PURCHASE MONEY, DISPOSAL OF.
See also Vol. VIII. 1380, 1939.
A. Payment out to Pebsons Absolutely
Entitled.
Compensation Money Lodged in Court —
Words in Deed Sufficient to Pass.] — X was
tenant in tail in remainder, under an indenture
of settlement made in 1870, of considerable
estates in Galway and in other parts of
Ireland. In 1890 a railway company acquired
a small portion of the Galway lands under
their compulsory powers, and the compensation
monev was lodged and remained in Court. In
1901 " X mortgaged his estates by several
instruments in which they were variously
described as " all my estates in Galway and
wheresoever situate in Ireland," " all my
estate situate in Galway and elsewhere in
Ireland," and " all my lands, hereditaments,
and premises in county Galway, Ireland, and
other lands, hereditaments, and premises
wheresoever situate in Ireland." X was
adjudicated a bankrupt in England in 1902,
and the estate tail in remainder given to him
by the settlement having subsequently become
an estate in possession, the official receiver
and trustee of his estate duly executed a
disentailing assurance of the lands comprised
in and settled by the indenture of settlement
of 1870, and all other " if any, the tenements
and hereditaments of or to which the said X
was seised or entitled as tenant in tail whether
at law or in equity, under the said indenture
or otherwise howsoever." Upon a summons by
the official receiver in bankruptcy for payment
out of Court of the compensation moneys,
which was opposed by the mortgagee, — Held,
first, that the compensation moneys were not
included in the mortgage; and secondly, that
they were included in the disentailing assur-
ance and should be paid out to the official
receiver in bankruptcy. Ballinrobe and
Claremorris Light Railway and Kenny, Ex
parte, [1913] 1 Ir. R. 519— Barton, J.
B. Costs of Payment Out.
Trustees for Purposes of Settled Land
Acts — Petition by — Tenant for Life Respon-
dent— Costs.] — Where there is a petition for
payment out of Court of money paid in by a
railway company as the purchase money of
real estate settled by the will of a testator,
which the company had taken under their
compulsory powers, presented by the trustees
of the will for the purposes of the Settled
land Acts, and that petition is served upon
the tenant for life, the tenant for life is
entitled to be separately represented and to
have his costs paid by the railway company.
Piggin, In re; Mansfield Railway, ex parte,
82 L. J. Ch. 431 ; [19i3] 2 Ch. 326 ; 108 L. T.
1014 — Warrington, J.
Order for Transfer to Several Transferees —
Separate Fees for Requests and Attendance
before Paymaster.] — The allowance of two
fees for attendance before the Accountant-
General, on an application, under the new
rules for payment out of funds paid in under
the Lands Clauses Act, which originated when
under the practice in Chancery under the
old Consolidated Orders it was necessary for
the solicitor to attend both before the Registrar
and also before the Accountant-General, was
held to be common form to-day, and such fees
were accordingly not disallowed. Butler's
Will, In re; Metropolitan Board of Works,
ex parte. 106 L. T. 673; 56 S. J. 326—
Parker, J.
Costs Incidental to Application for Pay-
ment out — Letters of Administration — Tenant
for Life.] — Freehold premises, which were
devised to a widow for life, and after her
death to her children as tenants in common in
fee, were during the life tenancy taken com-
pulsorily and the purchase money paid into
Court. On the death of the life tenant, the
fund, which was divisible into six shares, was
ordered to be distributed and the costs paid
bv the promoters, in accordance with the
Tiands Clauses Consolidation Act, 1845, s. 80.
Upon taxation the Master disallowed (a) the
costs of taking counsel's opinion as to the
persons entitled, (b) the costs of an applica-
tion to the Probate Division for leave to pre-
sume the death of one child, and (c) the costs
of obtaining administration to the estates of
two children who predeceased the tenant for
life. The applicants appealed : — Held, by
Astbury, J., that the costs under heading
(a) were not payable by the promoters ; but
. held, by the Court of Appeal (affirming
845
LANDS CLAUSES ACT.
846
Astbury, J.), that the costs under headings
(b) and (c) were reasonable charges incident
to obtaining payment of the fund out of Court,
and were therefore payable by the promoters.
Lloyd and North London Railway {City
Branch) Act, 1861, In re (65 L. J. Ch. 626;
[1896] 2 Ch. 397), approved. Griggs, In re;
London School Board, ex parte, 83 L. J. Ch.
835; [1914] 2 Ch. 547; 111 L. T. 931;
13 L. G. R. 27 ; 58 S. J. 796— C.A. Affirming,
78 J. P. S95— Astbury, J.
III. COMPENSATION.
See also Vol. VIII. 1505, 1948.
I
A. In Respect of what Injtiries.
Mortgaged Lands— Mortgagee in Possession
—Part taken Compulsorily — Claim of Com-
pensation for Injurious Affection of Residue.]
—Mortgagees of lands in possession with a
power of sale are entitled under the Lands
Clauses Act, 1845, as being parties entitled to
sell and convey them, to the rights of owners
thereof. Where' part of the mortgaged lands
is taken they are also entitled, as being parties
interested in such lands, to claim compensa-
tion for damage by reason of the residue being
injuriously affected by the execution of the
works by the promoters of the undertaking.
Their rights in that respect are not restricted
bv the special provisions relating to mortgagees
in sections 108 to 114 of the Act. Rex v.
Middlesex {Clerk of the Peace), 83 L. J. K.B.
1773; [1914] 3 K.B. 259; 111 L. T. 579;
79 J. P. 7— D.
B. In Eespect of what Interests.
Lessee's Interest — Arrears of Rent.] — A
lessor cannot claim arrears of rent out of
money lodged in Court under the Lands
Clauses Act as compensation for the interest
of the lessee. Carey, Ex parte; Great Southern
and Western Railway, In re (10 L. T. (o.s.)
37), followed. Dublin Corporation and Baker,
In re; Thompson, ex parte, [1912] 1 Ir. R.
498— M.R.
C. In Respect of what Persons.
Mortgaged Lands— Mortgagee in Possession
— Part taken Compulsorily — Claim of Com-
pensation for Injurious Affection of Residue.]
— Mortgagees of lands in possession with a
power of sale are entitled under the Lands
Clauses Act, 1845, as being parties entitled to
sell and convey them, to the rights of owners
thereof. "Where part of the mortgaged lands
is taken they are also entitled, as being parties
interested in such lands, to claim compensa-
tion for damage by reason of the residue being
injuriously affected by the execution of the
works by the promoters of the undertaking.
Their rights in that respect are not restricted
by the special provisions relating to mort-
gagees in sections 108 to 114 of the Act. Rex
V. Middlesex (Clerk of the Peace), 83 L. J.
K.B. 1773; [1914] 3 K.B. 259; 111 L. T.
679; 79 J. P. 7— D.
D. Principles of Assessment.
Land Specially Adapted to Railway
Purposes.] — On the expiration of the lease of
a piece of land over which the main line of a
railway company passed, the company obtained
compulsory powers to purchase the land. This
railway was also the only means of conveying
coal from the neighbouring collieries to their
port of shipment -.—Held, that in assessing
compensation the arbitrator ought to take into
consideration the special adaptability of the
land for railway purposes, because had the
railway company not obtained compulsory
powers they would have had to compete with
the colliery companies for its acquisition ; but
that he ought not to consider its special value
to the railway company in respect of the fact
that a part of the passenger railway ran over
it, for there could be no competition with any
other for its purchase, as the railway company
alone could use it for the purposes of a
passenger railway, and in the absence of com-
petition the doctrine of special adaptability
had no application. Sidney v. North-Eastern
Railway, 83 L. J. K.B. 1640; [1914] 3 K.B.
629 ; 111 L. T. 677— D.
Restricted Use of Land.] — Where land is
taken compulsorily for public purposes the
value upon which compensation is to be
assessed is the value to the old owner who
parts with the property, not the value to its
new owner who takes it over. If, therefore,
I the old owner holds the property subject to
1 restrictions, the question of how far those
1 restrictions affect the value is to be considered
I in assessing the compensation. Hilcoat v.
Canterbury and York {Archbishops) (19 L. J.
I C.P. 376; 10 C. B. 327) and Stebbing \.
Metropolitan Board of Works (40 L. J.
Q.B. 1; L. R. 6 Q.B. 37) discussed and ex-
plained. Corrie v. MacDermott, 83 L. J.
P.C. 370; [1914] A.C. 1056; 111 L. T. 952
-P.O.
Owner of Two Contiguous Pieces of Land —
One Building Site— Purchase of Strip of one
Piece without Reference to other Piece —
: Valuation.] — Where the owner of two con-
' tiguous pieces of land, which he has separately
' acquired, sells under compulsion a strip of
I one piece without any reference to his interest
! in the other piece, the purchase price of the
strip must be ascertained without reference
to the other piece, although the vendor has,
after the purchase has been agreed upon, dealt
with the two properties as one building site.
South-Eastern Railway v. London County
Council. 84 L. J. Ch. 756; [1915] 2 Ch. 252;
, 113 L. T. 392 ; 79 J. P. 545 ; 13 L. G. R. 1302 ;
i 59 S. J. 508— C.A.
E. Settling Amount and Practice Thereon.
1. Reference to Arbitration.
a. .iicard.
Light Railway — Taking up Award —
Mandamus.] — The promoters of a light rail-
way under an Order made under the Light
Railways Act, 1896, incorporating the Lands
847
LANDS CLAUSES ACT— LEGACY.
848
Clauses Consolidation Act, 1845, are bound
under section 35 of the Lands Clauses Con-
solidation Act, 1845, to take up an award of
compensation in respect of land compulsorily
acquired by the company, and if they fail to
do so the Court ■will issue a mandamus to
compel them to take up the award. The pro-
visions of the Li^ht Eailways Act, 1896, are
only substituted for those of the Lands Clauses
Act as regards the manner of the determina-
tion of the compensation — the amount being
ascertained by a single arbitrator instead of
by the verdict of a jury, by arbitration, or by
two Justices, as under the Lands Clauses
Consolidation Act, 1845. Rex v. Barton and
Immingham Light RaiUcay; Simon. Ex parte,
81 L. J. K.B. 964; [1912] 3 K.B. 72; 76 J. P.
344— D.
Action on Award — Statute of Limitations.''
- — See Turner v. Midland Railwajj. -post,
col. 860.
b. Costs.
Award in Favour of Plaintiflf — Costs —
Sufficiency of Previous Offer.] — A r;iilway
company having, pursuant to compulsory
powers, diverted a public footpath, the owner
of adjoining land claimed compensation under
the Lands Clauses Consolidation Ac*^. 1845,
on the ground that the diversion of the foot-
path had injuriously affected his estate and
interest in such land, and the matter went to
arbitration. The company, before appointing
their arbitrator, wrote to the claimant stating
that they had arranged for the construction
of a road which would compensate him for
the diversion of the footpath, and, " on the
understanding that such road will be made,"
offering him 50L in settlement of his claim.
The proposed road was in fact completed before
the arbitration took place. The umpire
awarded the plaintiff 50L compensation and
his costs : — Held, that the company's offer was
not a valid offer under section 34 of the Act,
inasmuch as it was not a plain, clear, and
unconditional offer of a sum of money only,
but was an offer of either a sum of money and
the making of a road, or a sum of money con-
ditional upon the making of a road ; and
consequently, as in effect no sum had been
offered at all under the section, the plaintiff's
costs of and incident to the arbitration should
be borne by the company. Fisher v. Great
Western Railway, 80 L. J. K.B. 299; [19111
1 K.B. 551; 103 L. T. 885; 55 S. J. 76;
27 T. L. R. 96— C.A.
LAND TRANSFER.
Vendor and Purchaser — Leasehold Land —
Ninety-nine Years Term — Mortgage by Sub-
demise Less One Day — Registration of Term —
Sale by Mortgagee under Statutory Power —
Requisitions. ~ — Where leasehold land is regis-
tered under the Land Transfer Acts, after a
mortgage by sub-demise for the terms less one
day has been created (and not registered), the
mortgagee selling under the statutory power
of sale is not the vendor of registered land
within the meaning of section 16, sub-section 2
of the Land Transfer Act, 1897, and the pur-
chaser is not entitled to require him either to
be registered as proprietor of the land or of a
charge giving a power of sale over the land,
or to procure a transfer from the registered
proprietor to the purchaser. Voss and
Saunders' Contract, In re, 80 L. J. Ch. 33;
[1911] 1 Ch. 42; 103 L. T. 493; 55 S. J. 12
— Warrington, J.
Land held under a lease of ninety-nine years
was sub-demised, by way of mortgage, for
the residue of the term less the last day. The
mortgage contained no express power of sale,
but a provision that on a sale by the mort-
gagee under the statutory power the mortgagor
should stand possessed of the last day in trust
for the purchaser. Subsequently a purchaser
from the mortgagor was registered under the
Land Transfer Act, 1897, as the first pro-
prietor, with possessory title. The mortgage
having been transferred, the transferee's
executor contracted under the statutory power
of sale to sell. To a requisition by the pur-
chaser that the vendor must get himself put
on the register as the registered proprietor,
the vendor replied that he would not, as he
was not selling a registered title : — Held, that
the requisition had been sufficiently answered.
lb.
LAND TAX.
See EE VENUE.
LAND VALUES.
See REA'ENUE.
LARCENY.
See CRIMINAL LAW.
LEASE.
See LANDLORD AND TENANT.
LEGACY.
See WILL.
849
LEGACY DUTY— LIEN.
850
LEGACY DUTY.
See REVENUE.
LEGITIMACY.
See HUSBAND AND WIFE.
LETTERS.
Property in." — See Injunctiox.
LETTERS PATENT.
See PATENT.
LIBEL.
Generally.] — See Def.\mation.
Criminal.l — See Criminal Law
LICENCE.
Power to RcYoke Licence — Theatre — Ticket
for Seat— Effect of Purchase— Right to Retain
Seat — Mere Licence — Licence Coupled with
an Interest.] — The plaintiff was occupying a
seat, for which he had bought a ticket, in the
defendants' theatre during a cinematograph
exhibition, when he was forcibly removed by
the defendants' servants under the mistaken
belief that he had not obtained a ticket for his
seat. In answer to an action for assault, the
defendants, on the authoritv of Wood v. Led-
bitter (14 L. .T. Ex. 161;"l3 M. & W. 838)
asserted that the plaintiff had a mere licence
to be in the theatre, and claimed that they
had the power to revoke that licence at will at
any time : — Held (Phillimore, L.J., dissent-
ing), that since the Judicature Act, Wood v.
Ledbitter (supra) was no longer law, and that
the plaintiff was entitled to recover damages
for the assault. Hurst v. Picture Theatres,
Lim., 83 L. J. K.B. 1837: [1915] 1 K.B. 1:
111 L. T. 972; 58 S. J. 739; 30 T. L. R. 642
— C.A.
Right to Revoke — Assignment of Subject-
matter to which Licence Attached.] — By a
contract contained in an agreement not under
seal, entered into on July 1, 1913, between
the defendant, therein described as " the
licensor," and the plaintiffs, described as
" the licensees," the defendant granted to the
plaintiffs exclusive permission to afi&x posters
and advertisements to one of the walls of a
picture house proposed to be erected on his
property by a company about to be formed for
a term of four years from November 1, 1913,
or the first day the picture house should be
opened for business, at a rent of 12L per
annum. An agreement for a lease of the site,
dated August 29, 1913, and made between
the defendant and a trustee for the Picture
House Co., provided that the defendant should
assign to the trustee for the company his
interest under the agreement of July 1, and
that the trustee should, as soon as the com-
pany should be registered, obtain the ratifica-
tion bv the company of the said agreement.
On September 2. 1913, the Picture House Co.
was registered with articles of association
containing a provision for carrying the agree-
ment of August 29 into effect. The lease to
the company was executed on September 18,
1913, and at a meeting of directors on the
same day the agreement of August 29 was
ratified and adopted. Neither the articles of
association nor the lease contained any refer-
ence to the agreement of July 1. The Picture
House Co., having refused the permission
granted by the licence, the licensees brought
an action for damages for breach of contract
against the licensor : — Held (Kenny, J., dis-
senting), that the licensor was answerable in
damages for breach of the contract embodied
in the agreement of Julv 1. Hurst v. Picture
Theatres, Lim. (83 L. 'j. K.B. 1837; [1915]
1 K.B. 1), applied and followed. Allen v.
King, [1915] 2 Ir. R. 213— K.B. D.
For Music] — See Disorderly House.
Licence Duty.1 — See Intoxicating Liqcors.
For Cinematographs.] — See Cinematograph.
LICENSING LAW.
See INTOXICATING LIQUORS.
LIEN.
See also Vol. VIII. 1620, 1974.
Contract for Work to be Done upon Goods
— Sub-contract for Part of Work — Right of
Sub-contractor to Retain Goods as against
Owner — General Lien — Particular Lien —
Calico-printing Trade — Custom as to
Bleacher's Right of Lien." — The plaintiffs,
being possessed of a quantity of calico, sent
it'to some calico prmters to be printed. The
printers, without any express authority from
851
LIEN— LIMITATIONS (STATUTES OF).
852
the plaintiffs so to do, sent on the calico to
the defendants, who were bleachers, with in-
structions to them to bleach it. There was
nothing in these instructions to indicate to
whom the goods belonged, but each piece of
calico was marked with the plaintiffs' initials.
On the defendants' invoices and on their
correspondence paper was a printed notice
that all goods received by them would be
subject to a lien for the general balance of
account. After the defendants had bleached
all the calico, and while half of it remained
in their hands, the printers went into liquida-
tion, being indebted to the defendants in
respect of a general balance of account
between them. The plaintiffs demanded
delivery from the defendants of the calico
which remained in their hands, but the defen-
dants, relying on an alleged custom in the
calico-printing trade, claimed to be entitled
to retain the goods under a lien for the general
balance of account between themselves and
the printers. The defendants also asserted
such a general lien by virtue of an authority
from the plaintiffs to the printers to create
such a lien to be implied from the ordinary
course of business in the calico-printing trade.
In the alternative the defendants asserted a
particular lien for the price of bleaching the
plaintiffs' goods : — Held, such alleged custom
not being proved, and there being no evidence
of such implied authority, that the defendants
were not entitled to retain the goods under
either a general lien or a particular lien.
Cassils d- Co. V. Holden Wood Bleaching Co.,
84 L. J. K.B. 834: 112 L. T. 373-C.A.
Contract to Maintain Motor Car and Supply
Driver and Materials — Right to Lien for
Unpaid Moneys — Maintaining but not Im-
proving Article — Owner to be at Liberty to
RemoYe Article.] — If a repairer under a con-
tract to repair an article improves the article
by the repair, he has a lien on it for the
amount of his charges ; but if he merely main-
tains it in its former condition he gets no lien
on it for the amount spent on maintenance.
Even if in such circumstances the contractor
had a lien, it would be lost under an arrange-
ment by which the owner of the article was
to be at liberty to remove it at pleasure, and
did so remove it. Where, therefore, a com-
pany contracted with the owner of a motor
car to maintain it, supply all necessaries for
running it, and repair it if it broke down,
and to supply a driver, for a fixed annual sum,
and the company permitted the owner to
remove the car from their garage as often as
she pleased, — Held, that the company had no
lien on the car for moneys due from the
owner under the contract. Hatton v. Car
Maintenance Co., 84 L. J. Ch. 847; [1915]
Ch. 621; 110 L. T. 765; 58 S. J. 361;
30 T. L. R. 275— Sargant, J.
Of Carriers.] — See Carrier.
Of Solicitors.] — See Solicitor.
LIGHTERMAN.
See CARRIER.
LIMITATIONS
(STATUTES OF).
A. Actions on Simple Contract, Actions of
Tort, and other Personal Actions
AND Proceedings.
I. Computation of Period of Limitation,
852.
II. Application of Statutes to Particular
Persons.
1. Attorney-General, 853.
2. Trustee and Cestui que trust, 853.
3. Executors, Administrators, Devi-
sees, Legatees and Heirs, 864.
4. Principal and Agent, 855.
5. Bankrupt, 855.
6. Public Authorities — see Public
Authorities Protection.
III. Matters in Avoidance of the Statutes.
1. Acknowledgment, 856.
2. Concealed Fraud, 856.
B. Actions Relating to Land, and Actions
on Specialties.
I. Application of the Statutes to Particular
Persons.
1. Landlord and Tenant, 857.
2. Mortgagor and Mortgagee, 857.
3. Reversioners, 859.
4. Persons Claiming under Lands
Clauses Acts, 860.
5. Trustee, 860.
II. Possession, 860.
III. Charges on Land, 862.
IV. Acknoivledgment, 863.
A. ACTIONS ON SIMPLE CONTRACT,
ACTIONS OF TORT, AND OTHER
PERSONAL ACTIONS AND PRO-
CEEDINGS.
I. Computation of Period of Limitation.
See also Vol. IX. 9, 1875.
Bills of Exchange — Promissory Note —
Calculation of the Six Years — Limit Expiring
on Sunday— Order LXIY. rule 3.] — The time
for payment of a promissory note, including
the days of grace, expired on Saturday,
September 22, 1906. The writ in the action
to recover the amount due on the note was
issued on Monday, September 23, 1912 : —
Held, that the action on the note was barred
by the Statute of Limitations, as the cause of
action was complete on the expiration of
September 22, 1906, the day on which pay-
ment was due, and the six years next after
the cause of such action, within which the
action must be brought in order to comply
with the Limitation Act, 1623, expired on
Sunday, September 22, 1912. Held, further,
that Order LXIV. rule 3 of the Rules of the
Supreme Court, which provides that, " Where
the time for doing any act or taking any pro-
ceeding expires on a Sunday, or other day
on which the of&ces are closed, and by reason
653
LIMITATIONS (STATUTES OF).
851
thereof such act or proceeding cannot be done
or taken on that day, such act or proceeding
shall, so far as regards the time of doing or
taking the same, be held to be duly done or
taken if done or taken on the day on which
the ofiBces shall next be open," has no effect
on the operation of the Statute of Limitations,
and that therefore the writ, which was issued
on Monday, September 23, 1912, could not be
considered as having been issued on Sunday,
September 22, 1912. Gelmini v. Moriggia,
82 L. J. K.B. 949; [1913] 2 K.B. 549;
109 L. T. 77; 29 T. L. R. 486— Channell, J.
the trustee through a bona fide mistake of
fact, of which all parties were ignorant, can
be defeated by the Statute of Limitations
(21 Jac. 1. c. 16), where the claim is in the
nature of a claim for money, and not for a
specific trust fund impressed with the trust.
Harris v. Harris (No. 2j (29 Beav. 110)
explained. Robinson, In re; McLaren v.
Public Trustee, 80 L. J. Ch. 381; [1911]
1 Ch. 502; 104 L. T. 331; 55 S. J. 271—
Warrington. J.
See also Croydon. In re: Hincks v. Roberts,
infra.
II. Application of St.^tutes to P.articular
Persons.
1. Attorney-General.
Action at Relation of Attorney-General —
Lapse of Time.^ — To an action for an injunc-
tion by the Attorney-General, suing not e.r
officio, but at the relation of an individual or
individuals, lapse of time may be a sufficient
defence. Att.-Gen. v. Warren Smith, 76 J. P.
253— Joyce, J.
2. Trustee and Cestui que Trust.
See also Vol. IX. 40, 1878.
Express Trustee — Shipping Agent — Sale of
Cargo in Course of Business — Payment of
Salvage Claims — Balance Remaining in
Agent's Hands.] — The plaintiff was the sur-
vivmg partner of a firm who carried on the
business of average adjusters in Paris. In
the year 1883 a vessel called the Interjiational
became a total wreck near Ramsgate. The
bill of lading was sent by the plaintiff's firm,
who was acting for the insurers, to the
defendant, who was a shipping agent, with
instructions to sell the cargo on behalf of the
firm. The cargo was sold by the defendant.
and, after deducting salvage claims and other
expenses, there remained in his hands a sum
of 96L, which appeared for several years in
his books as owing in respect of the vessel.
The entry ceased to appear after the year 1888,
but the amount was not paid over to the
plaintiff's firm. In an action brought by the
plaintiff in 1912 to recover the sum of 961. the
defendant pleaded that the claim was barred by
the Statute of Limitations : — Held, that as
the defendant had been employed to sell the
cargo in the ordinary course of his business,
he was not bound to keep the proceeds of the
sale as a separate fund to be paid over to the
plaintiff's firm ; that the defendant was not
therefore an express trustee of the amount,
but only a debtor to the plaintiff in respect
of the ultimate balance of account as between
them, and that the claim was consequently
barred by the Statute of Limitations.
Henry v. Hammond, 82 L. J. K.B. 575;
ri913] 2 K.B. 515: 108 L. T. 729; 12 Asp.
M.C. 332; 57 S. J. 358: 29 T. L. R. 340~D.
Payment to Wrong Beneficiary — Mistake of
Fact— Right of Recovery— Lapse of Time.—
The right of a cestui que trust to recover a
trust fund from another cestui que trust, to
whom the fund has been wrongfully paid by
3. Executors, Administrators, Devisees,
Legatees and Heirs.
.See also Vol. IX. 47, 1879.
Assets Paid to Wrong Person by Legal
Personal Representative — Recovery by Person
Entitled — Lapse of Time.] — A legal personal
representative handed over assets to the wrong
person more than six years before the com-
mencement of proceedings by the person
entitled to recover the same : — Held, that the
claim was barred. Croyden, In re; Hincks v.
Roberts, 55 S. J. 632— Eve. J.
Equitable Charge on Lands Appointed in
Certain Shares — Interest." — Certain shares in
an equitable charge of 20,O0OZ. were appointed,
pursuant to a power contained in marriage
articles, to the daughters of the marriage,
and were by them assigned to the trustees of
their respective settlements. 8,O0OL, the share
appointed to one of the daughters, was after-
wards paid off by J. P. the father, who was at
the time tenant for life of the lands subject
to the charge, and was assigned to him for
his own benefit. Subsequentlv J. P. assigned
3,001Z., portion of this sum of 8.000L, to the
trustees of the settlement of another of the
daughters. On his death in 1877 the entire
charge became raisable. Since that time
interest had been regularly paid on the other
appointed shares and also on the 3,001Z., but
no payment of principal or interest had been
made since that time or acknowledgment
given in respect of the 4,999Z., the balance of
the 8,000L -.—Held, that the claim to the
4,999Z. was barred. Young v. Lord Waterpark
(8 L. J. Ch. 214) distinguished. Power's
Estates, In re, [1913] 1 Ir. R. 530— Wylie, J.
Account against Executor, at Suit of
Creditor — Right to be Allovfed Payments made
to Beneficiaries More than Six Years before
Action.] — Notwithstanding section 8 of the
Trustee Act, 1888, an order for an account
against an executor in a creditors' adminis-
tration action ought not to be so limited as
to entitle the executor to be allowed sums paid
to beneficiaries more than six years before the
commencement of the proceedings, the pro-
visions of the section being inapplicable to the
case. Dictum of Fletcher Moulton, L.J., in
Lacons v. WarmoU (76 L. J. K.B. 914; [1907]
2 K.B. 350) not followed. Croyden, In re;
Hincks v. Roberts (55 S. J. 632), distinguished.
Blow, In re; St. Bartholomew's Hospital v.
Cambden, 82 L. J. Ch. 207 : [1913] 1 Ch. 358;
108 L. T. 413; 57 S. J. 303; 29 T. L. R. 279
855
LIMITATIONS (STATUTES OF).
856
— Warrington, J. Reversed, 58 S. J. 136;
30 T. L. E. 117— C. A.
Residuary Devise of Real and Personal
Estate — Trust to Sell and Convert — Trust
to Pay Debts — Mixed Fund — Whether Debt
Barred so far as Attributable to the Personal
Estate." — A testator devised the residue of his
real and personal estate to trustees upon trust
for sale and conversion, and out of the moneys
produced by such sale and conversion to pay
his debts : — Held, that the testator by creating
a mixed fund and imposing a duty not on the
executors, but on the trustees, of paying his
debts out of that mixed fund, had created a
charge not of a part but of the whole of the
debts on the real estate, and that it could not
be said that any particular part of the debts
was attributable to the personal estate ; there-
fore no part of a claim for a debt was barred
by the Statutes of Limitation if brought within
twelve years of the testator's death. Query of
Kay, J., in Stephens, In re; Warhurton v.
Stephens (59 L. J. Ch. 109, 111; 43 Ch. D.
89, 45), answered in the negative. Raggi,
In re; Brass v. Young £ Co., 82 L. J. Ch. 396 ;
[1913] 2 Ch. 206; 108 L. T. 917—
Warrington, J.
4. Principal and Agent.
See also Vol. IX. 64, 1882.
Shipping Agent — Sale of Cargo in Course ol
Business — Payment of Salvage Claims —
Balance Remaining in Agent's Hands." — The
plaintiff was the surviving partner of a firm
who carried on the business of average
adjusters in Paris. In the year 1883 a vessel
called the International became a total wreck
near Ramsgate. The bill of lading was sent
by the plaintiff's firm, who were acting for the
insurers, to the defendant, who was a shipping
agent, with instructions to sell the cargo on
behalf of the firm. The cargo was sold by the
defendant and, after deducting salvage claims
and other expenses, there remained in his
hands a sum of 96L, which appeared for
several years in his books as owing in respect
of the vessel. The entry ceased to appear after
the year 1888, but the amount was not paid
over to the plaintiff's firm. In an action
brought by the plaintiff in 1912 to recover
the sum of 96Z. the defendant pleaded that
the claim was barred by the Statute of I
Limitations : — Held, that as the defendant \
had been employed to sell the cargo in the
ordinary course of his business, he was not
bound to keep the proceeds of the sale as a
separate fund to be paid over to the plaintiff's
firm; that the defendant was not therefore
an express trustee of the amount, but only a
debtor to the plaintiff in respect of the ultimate
balance of account as between them, and that
the claim was consequently barred by the
Statute of Limitations. Henry v. Hammond,
82 L. J. K.B. 575; [1913] 2 K.B. 515;
108 L. T. 729 : 12 Asp. M.C. 332 ; 57 S. J. 358 ;
29 T. L. E. 340— D.
5. Bankrupt.
Power of Appointment — Exercise — Effect of
Bankruptcy.] — Where a person has the abso-
lute power of appointing the capital of a trust
fund by will, the exercise of such power,
coupled with the death of the appointer, does
not give his creditors a new cause of action,
but merely a new remedy. Where a cause
of action has arisen and the Statute of
Limitations has begun to run, the subsequent
bankruptcy of the debtor does not prevent the
statute from continuing to run. Benzon. In
re; Bower v. Chetwynd, 83 L. J. Ch. 658;
[1914] 2 Ch. 68 : 110 L. T. 926 ; 21 Manson, 8 ;
58 S. J. 430; 30 T. L. R. 435— C. A.
III. Matters in Avoidaxce of the Statutes.
1. Acknovfledgment.
See also Vol. IX. 89, 1884.
Letter — Admission.] — The plaintiff sued the
defendant for money lent. To the defence
that the claim was barred by the Statute of
Limitations the plaintiff relied on the following
letter, written to him by the defendant as
being a sufficient acknowledgment to prevent
the operation of the statute : " I do not forget,
old friend, the debt I owe you, and which I do
wish I could wipe out. Why, it must be at
least six years since you cabled me promptly
the help I then needed " : — Held, that this
letter constituted a sufficient acknowledgment
to prevent the operation of the Statute of
Limitations. Tanner v. Smart (5 L. J. (o.s.)
K.B. 218; 6 B. & C. 603) distinguished.
Brown v. Mackenzie. 29 T. L. R. 310—
Lush, J.
In an action to recover a debt due under
a promissory note the defendant relied on the
Statute of Limitations. After the time fixed
by the statute had run, the defendant, in
answer to a demand for payment by the plain-
tiff's solicitors, wrote admitting the debt and
adding. " I have no means of any sort ... if
I could I should gladly pay " : — Held, that this
was a sufficient acknowledgment and uncon-
ditional promise to pay to take the case out of
the operation of the statute. Parson v. Nesbitt,
60 S. J. 89— Lord Coleridge, J.
Affidavit for Probate.] — A statute-barred
debt was set out in the schedule of debts of
a testator's estate in the Inland Revenue
affidavit for probate by the executors : Held,
that it was not a sufficient acknowledgment
within the Statute of Frauds Amendment Act,
1828, to take the debt out of the Statute of
Limitations. Smith v. Poole (10 L. J. Ch.
192 ; 12 Sim. 17) not followed. Principle that
the acknowledgment must be to the creditor
or his agent laid down by Lord Herschell in
Stamford, Spalding, and Boston Banking Co.
V. Smith (61 L. J. Q.B. 405; [1892] 1 Q.B.
765) applied. Beavan, In re; Davies, Banks d
Co. V. Beavan, 81 L. J. Ch. 113; [1912] 1 Ch.
196; 105 L. T. 784— Neville. J. S. P. Lloyd
V. Coote (f Ball, 84 L. J. K.B. 567; [1915]
1 K.B. 242; 112 L. T. 344— D.
2. Concealed Fraud.
See aho Vol. IX. 121, 1888.
Breach of Contract — Fraudulent Conceal-
ment.^— In a common law action for breach
of contract it is no answer to a plea of the
857
LIMITATIONS (STATUTES OF).
858
Statute of Limitations that the breach was
fraudulently concealed. Osgood v. Sunderland,
111 L. T. 529; 30 T. L. E. 530— Bailhache, J.
Trust.] — See Levesley, In re; Goodwin v.
Levenley, post, col. 860.
Right of Defrauded Party to Rescind
Contract.] — The plaintiff claimed to set aside
certain transactions which he had entered into
with the defendant, who was his stockbroker,
with regard to certain shares, on the ground
that the defendant had fraudulently repre-
sented that he would act in the plaintiff's
interest w"ith reference to the transactions,
whereas he had in fact acted as principal,
and had sold his own shares to the plaintiff.
The jury found that the plaintiff was induced
to purchase the shares by the false and fraudu-
lent representations of the defendant. The
transactions took place between November,
1905, and August, 1906, l)ut the plaintiff did
not discover the fraud till July, 1912. The
action was commenced in November, 1912 : —
Held, that when once fraud is established the
rights of the party defrauded are not affected
by the Statute of Limitations so long as he
remains, without any fault of his own, in
ignorance of the fraud, and that therefore the
plaintiff's claim was not barred by the statute.
Gibbs V. Guild (51 L. J. Q.B. 313; 9 Q.B. D.
59) considered. Oelkers v. Ellis, 83 L. J.
K.B. 658; [1914] 2 K.B. 139; 110 L. T. 332—
Horridge, J.
B. ACTIONS RELATING TO LAND, AND
ACTIONS ON SPECIALTIES.
I. Application of the Statutes to Particular
Persons.
1. Landlord and Tenant.
See also Vol. IX. 152, 1893.
Tenancy at Will — Determination.] — A
tenancy at will may be implied where a person
enters into and remains in occupation of lands
and the enjoyment of the profits, by arrange-
ment with the owner, without payment of
rent, and not as agent or under any express
contract of tenancy. If the owner visits the
lands in the character of owner and exercises
rights of ownership animo possidendi, such
visits may prevent the Statute of Limitations
from running in favour of the tenant at will.
Woodhouse v. Hooney, [1915] 1 Ir. R. 296—
Barton, J.
2. Mortgagor and Mortgagee.
See also Vol. IX. 206, 1895.
Claim for Account and Recovery of Rents by
Second Mortgagee against First Mortgagee.]
— The second mortgagee of lands claimed an
account against the first mortgagee of all rents
and profits of the lands received by the first
mortgagee after the first mortgagee had been
satisfied, and repayment by the first mortgagee
of any surplus of rents in his hands, and a
reconveyance of the lands. The first mort-
gagee, who had ceased to be in possession of
the lands and in receipt of the rents and profits
thereof for more than six years previous to
action brought, pleaded section 20 of the
Common Law Procedure (Ireland) Act, 1853,
which (inter alia) provides that all actions
of account (other than merchants' accounts)
must be commenced within six years, as a
bar to the action : — Held, that the action,
being one for redemption and other appropriate
remedies, was not barred by section 20.
Ocean Accident and Guarantee Corporation v.
Collum, [1913] 1 Ir. R. 32&— Ross, J.
Mortgage in Form of Trust — Building
Society — Entry of Mortgagee before whole
Mortgage Debt Payable — Possession by
Mortgagee after Mortgage Debt Satisfied —
Statutory Claim of Mortgagor for Surplus
Rents and Profits.] — A member of a building
society mortgaged certain leasehold property
to the society in order to secure repayment of
a sum of 400L within the period of ten years
by equal monthly payments. The mortgage
contained a clause enabling the society, on
failure of the mortgagor to keep down the
monthly payments, to enter into possession of
the rents and profits. This clause was in the
form of a trust, and provided that the society,
after satisfying all sums due to them on
account of the mortgage, should pay the surplus
(if any) to the mortgagor. Three years after
the date of the mortgage the society duly
entered into possession under the clause ; and
at the end of fifteen years they had received
sufficient from the rents and profits to satisfy
the whole of the mortgage debt. At this time
the mortgagor had left England, and for the
next eight years, or thereabouts, there was
no communication of any kind between him
and the society. At the end of this period,
however, when the society was being wound
up, the mortgagor appeared, and put in a claim
for the surplus rents and profits that had been
received by the society since the date of the
complete satisfaction of the mortgage debt.
The lease under which the mortgagor held
the property had by this time come to an end :
— Held, that the period of twelve years of
uncontested adverse possession on the part of
the society (required by section 7 of the Real
Property Limitation Act, 1874, to bar the
mortgagor's right to recover the surplus rents
and profits) began to run from the date at
which the society first entered into possession
of the rents and profits, and not from the date
when the whole mortgage debt first became
repayable — that is, at the end of the ten
years ; that the statutory annual statement
of the society's accounts that was made in
accordance with section 40 of the Building
Societies Act, 1874, did not amount to such
an acknowledgment within the meaning of
section 7 as was sufficient to exclude the
operation of the section; and that, accordingly,
inasmuch as the prescribed period of twelve
years had expired before the whole mortgage
debt had been completely satisfied, the claim
of the mortgagor to recover the surplus rents
and profits that had since accrued had been
thereby, once and for all, completely barred,
and could not afterwards be resuscitated by
the operation of the trust subsequent to such
complete satisfaction. Dictum of Walton, J.,
in Wilson v. Walton and Kirkdale Permanent
Building Society (19 Times L. R. 408) not
859
LIMITATIONS (STATUTES OF).
860
followed. Metropolis and Counties Permanent
Investment Building Society, In re, 80 L. J.
Ch. 387; [1911] 1 Ch. 698; 104 L. T. 382—
Neville, J.
Qucere, as to whether the mortgagor would
not have been entitled to recover the surplus
rents and profits had the period of twelve
years not expired prior to the complete satis-
faction of the mortgage debt. Ih.
Trust for Sale — Proceeds of Sale.] — A
mortgagor's interest in the proceeds of sale of
land held on trust for sale is an " interest
in land " as defined by the Eeal Property
Limitation Act, 1833, s. 1, and therefore,
under section 34 of the same Act and section 8
of the Keal Property Limitation Act, 1874,
after the lapse of twelve years, in the absence
of any payment or acknowledgment, the title
of the mortgagee is extinguished. Hazeldine's
Trusts, In re ill L. J. Ch. 97; [1908]
1 Ch. 34), and Kirkland v. Peatfield (72 L. J.
K.B. 355; [1903] 1 K.B. 756) followed. Fox,
In re; Brooks v. Marston, 82 L. J. Ch. 393;
[1913] 2 Ch. 75 ; 108 L. T. 948— Warrington,
J.
Inclusion in Deed of Power of Sale.] — In
1890, A by deed conveyed certain lands to B
and C, as tenants in common in fee-simple,
to secure a sum of 300Z., therein recited to
be due, with a proviso for redemption on pay-
ment of the principal money, the deed being
silent as to interest. There was a provision
that the powers and remedies conferred on
mortgagees by the Conveyancing and Law of
Property Act, 1881, were thereby given to B.
On the execution of the deed, B and C went
into possession, and had since remained in
possession, without accounting to A for the
rents and profits or having given any
acknowledgment in writing of his title : — •
Held, that the express inclusion in the deed
of a power of sale shewed that it was not
intended to operate as a Welsh mortgage,
and that A's right to redeem was barred by
the Statute of Limitations. Cronin, In re,
[1914] 1 Ir. B. 23— Madden, J.
3. Reversioners.
Mines and Minerals — Land Subject to
Mining Lease — Conveyance of Part of Land —
Conveyance of Reversion — Severance of Rever-
sion— Apportionable Rent.] — In 1740 the
defendant's predecessors in title granted a
mining lease of the coal under certain of their
lands for a term of two hundred years. By
deeds of 1791 and 1828 the defendant's pre-
decessors in title assured a part of these lands
to the plaintiff's predecessors in title. There
was no exception of minerals in either deed.
In the deeds of 1791 the mining lease was
only mentioned in the vendor's covenant
against incumbrances, from which it was ex-
cepted. In the deed of 1828 the grant was
expressly " subject to " the mining lease. No
apportionment was made of the rent of the
mining lease, and the whole of the rent had
been received by the defendant and his pre-
decessors in title. Upon action by the plaintiff
claiming the reversion on the mining lease in
respect of her part of the lands and an account,
upon apportionment, of what might be due to
her as rent for six years before the issue of
the writ, — Held, that the deeds of 1791 and
1828 conveyed the land and the minerals, so
that the reversion on the mining lease was
severed and the rent became apportionable ;
that no apportionment having been made there
had never been any wrongful receipt of rent
by the defendant's predecessors in title to
bring the case within section 9 of the Real
Property Limitation Act, 1833, and that the
plaintiff was therefore entitled to the account
as asked. Mitchell v. Mosleij, 83 L. J. Ch.
135 ; [1914] 1 Ch. 438; 109 L. T. 648; 58 S. J.
218; 30 T. L. E. 29— C.A.
4. Persons Claiming under Lands
Clauses Acts.
See also Vol. IX. 243. 1899.
Compensation — Arbitrator's Avrard — Cause
of Action.] — A railway company under the
powers conferred by their special Act, which
incorporated the Lands Clauses Consolidation
Act, 1845, stopped up a certain road in
October, 1902, thereby causing the plaintiff's
cottages to be injuriously affected. The
plaintiff made a claim for compensation in
August, 1909, under section 68 of the Lands
Clauses Consolidation Act, 1845, and the arbi-
trator made his award fixing the amount of
compensation in January, 1910 : — Held, that
the plaintiff had no cause of action under
section 68 of the Act of 1845 until the arbi-
trator had made his award, and therefore that
the plaintiff's claim was not statute-barred.
Turner v. Midland Railway. 80 L. J. K.B.
516; [1911] 1 K.B. 832 ;' 104 L. T. 347;
75 J. P. 283— D.
5. Trustee.
Trust— " Concealed fraud."]— In 1900 the
testator, a North Sea skipper, by a deed of
gift gave his sons W. and F. in fee-simple in
equal moieties certain land at P. and at S.
In July, 1901, he sold the land at S. and
bought additional land at P. In August, 1901,
W. died. The testator by his will, dated
1913, gave to F. all the land at P., and his
residue to the children of a deceased son.
The testator received the rents of the land at
P. down to his death in 1914, the sons never
having known of the deed of gift. F. died in
1915 : — Held, that as the testator might have
thought the deed non-effective until communi-
cated to his sons, there had been no " con-
cealed fraud " by him, and therefore he had
not become a trustee for W. and F., and in
the case of the land at P. section 26 of the
Real Property Limitation Act, 1833, did not
apply and the Statute of Limitations ran and
the representatives of W. and F. were not
entitled to the land at P. under the deed of
gift. Levesley, In re; Goodwin v. Levesley,
60 S. J. 142; 32 T. L. E. 145— Peterson , J.
II. Possession.
See also Vol. IX. 249, 1901.
Trespass — Claim of Right — Discontinuance
and Acquisition of Possession — Acts of Owner-
861
LIMITATIONS (STATUTES OF).
862
ship.] — A defendant in an action for an
injunction and damages for trespass was the
owner of land divided from the land of the
plaintiffs by a wall belonging to the plaintiffs,
and by a strip of land, on the defendant's
side of the wall, the ownership of which was
in dispute. The defendant had tipped rubbish
on his own land and also on the disputed strip
up to and against the wall. There was evi-
dence that the wall had been built in 1894 and
1895, and that the plaintiffs had since then
naade no further use of the strip except occa-
sionally in repairing and altering their wall ;
and there was some evidence that the defen-
dant or his tenant had grazed cows up to the
wall. The defendant contended that the
plaintiffs had discontinued possession and that
the defendant had acquired a good title under
the Eeal Property Limitation Acts, 1833 and
1874 -.—Held, that the plaintiffs were entitled
to succeed. Observations on discontinuance
and acquisition of possession under the Real
Property Limitation Acts. Kynoch, Lim. v.
Roiclamls. 55 S. J. 617— Joyce, J. See S. C.
in C.A., infra.
Adjoining Owners — Wall Within Boun-
dary Line — Strip Outside Wall — Abandonment
— Adverse Possession — Acts of Ownership.! —
\\Tiere a person claims to have acquired a
possessory title in law under the Real Pro-
perty Limitation Act, 1833. upon the aban-
donment of possession by the original owner,
he must prove not only a discontinuance of
possession by the original owner for the
statutory period, but also acts of possession
bv himself. Norton v. London and North-
Western Railway (13 Ch. D. 268) and
Marshall v. Taylor (64 L. J. Ch. 416 ; [1895]
1 Ch. 641) followed. Kynoch. Lim. v.
Roiclands, 81 L. J. Ch. 340: [1912] 1 Ch.
527 ; 106 L. T. 316— C.A.
The mere straying of cattle over a known
boundary by reason of there being no fence
is not an act of such exclusive possession as
will enable the trespasser whose cattle has
so strayed on to land of an adjoining owner
to acquire a statutory title as against the true
owner. Ih.
Inclosure Acts — Award — Allotment to
Ecclesiastical Corporation Sole — Action of
Ejectment Based on Award — Defence of
Sixty Years' Possession — Acts of Ownership
for Sixty Years, Partly Before and Partly After
Award — " Ancient inclosure " — Question for
Determination of Yaluer and Commissioners —
Conclusiveness of Award. 1 — The rector of a
parish brought an action in 1913 to recover
possession of a piece of land which had in 1866
been allotted to a former rector by an inclosure
award made by a valuer and confirmed by the
Inclosure Commissioners under the provisions
of the Inclosure Acts. The defendant set up
the defence that he and his predecessors in
title had been in possession of the land for
sixty years. The effect of the evidence was
that the defendant's father had encroached
upon the land in question and inclosed it, and
that acts of ownership had been exercised
thereon by the defendant's father and the
defendant for more than sixty years before
the commencement of the action : — Held.
first, that the defendant failed to establish a
sixty years' possessory title, because the sixty
years' possession required by section 29 of
the Real Property Limitation Act, 1833, would
not begin to run against the plaintiff, as an
ecclesiastical corporation sole, until 1866, the
date of the award ; and secondly, that it was
not open to the defendant to say by way of
defence to the action that the encroachment
was at the date of the award an ancient in-
closure under section 52 of the Inclosure Act,
1845, because by sections 49, 50, and 105 of
that Act the question whether an encroach-
ment was an ancient inclosure was a question
for the determination of the valuer and the
Commissioners, and the award itself must be
taken to be a decision binding and conclusive
on all persons that the encroachment was
not an ancient inclosure. Chilcote v. Youldon
f29 L. J. M.C. 197; 3 E. & E. 7) and Jacomb
V. Turner ([1892] 1 Q.B. 47) considered.
Blackett v. Ridout, 84 L. J. K.B. 1535;
[1915] 2 K.B. 415; 113 L. T. 267— C.A.
in. Charges on Land.
See also Vol. IX. 273. 1905.
Covenant to Pay — Remedy on Covenant
Barried — Remedy against Land.] — A personal
covenant to pay a rentcharge cannot be
enforced after the expiration without acknow-
ledgment of twelve years from the last pay-
ment, as the effect of section 1 of the Real
Property Limitation Act, 1874, is to reduce
the period of twenty years fixed by the Civil
Procedure Act, 1833, s. 3. to twelve years.
Shaw V. Crompton, 80 L. J. K.B. 52; [1910]
2 K.B. 370; 103 L. T. 501— D.
Joint Owners of Equitable Charge in Receipt
of Rents of Lands Subject to Charge — Con-
structive Payment of Interest on Charge.] —
Where the owners of an equitable charge on
land had, under an assumption of title to the
land as tenants in tail, entered into receipt of
the rents and profits, constructive payment of
interest on the charge will be presumed, so as
to prevent it being barred, it being for their
benefit to pay such interest until they had
acquired by statute a title to the lands.
Battersby's Estate, In re, [1911] 1 Ir. R. 453
— Wylie, J.
Legacy Charged on Land — Express Trust.l
— A testator left a farm to A, adding, " I
direct that he shall pay the following legacies
which I hereby charge upon my said farm,"
the legacies being set out. He appointed A
sole executor. The testator died in 1891. and
A proved the will and went into possession of
the farm. He subsequently purchased it imder
the Land Purchase Acts, and in 1905 was
registered in the Land Registry as owner,
subject to equities. A died, having devised
the lands to B. and appointed B executor.
No payment had ever been made on accotint
of the legacies or any acknowledgment given
in respect of them. There were no other
charges on the lands. B applied to the
registering authority to have the note as to
equities cancelled -.—Held, that the legacies
were not secured by an express trust; that,
even if they had been so secured, the claims
863
LIMITATIONS (STATUTES OF)— LOCAL GOVEENMENT. 864
of the legatees were barred as against the
lands by section 10 of the Eeal Property
Limitation Act, 1874, and that B was entitled
to have the note as to equities cancelled.
Hazlette, In re, [1915] 1 Ir. K. 285— C. A.
TV. ACKXOWLEPGMENT.
Acknowledgment of Mortgage.] — A claim by
a legal mortgagee for payment of principal
and interest due on his mortgage, brought
in in a suit for the administration of the real
and personal estate of a deceased owner of the
equity of redemption, is a proceeding to
recover money secured by a mortgage charged
upon or payable out of the land within sec-
tion 8 of the Eeal Property Limitation Act,
1874, and not an action or suit to recover the
land, within section 1 of that Act, and conse-
quently the mortgagee in such case can rely
upon an acknowledgment of his right given
in writing by the agent of the owner of the
equity of redemption, as keeping alive a mort-
gage debt, which would otherwise have
become statute-barred. Lloyd's Estate, In
re; Waters v. Lloyd, [1911] 1 Ir. E. 153
— C.A.
LOCAL GOVERNMENT.
A, — In Metropolis — See Metropolis.
B. — Outside Metropolis.
I. Authorities.
1. County Council, 854.
2. District Council.
a. Election, 865.
h. Members, 865.
c. General Powers and Duties, 866.
3. Parish Council, 868.
II. Contracts by and with Authorities, 869.
III. Borrowing Powers, 872.
IV. Transfer of Areas, Duties, and
Adjustment of Liabilities, 873.
Y. Officers, 876.
VI. Jurisdiction.
1. Streets and Roads.
a. Formation and Alteration of, 877.
b. Fencing Land Adjoining Street,
882.
c. Eegulating Traffic, 882.
2. Buildings.
a. Definition, 883.
b. General Eegulations, 887.
c. Eight of Entry on Premises, 890.
d. Closing Order, 890.
e. Demolition, 893.
/. By-laws, 894.
3. Sewers and Drains, 895.
4. Water Closets, 896.
5. Baths and Washhouses, 897.
6. Omnibuses, 898.
7. Small Holdings, 899.
8. Offensive Trades, 901.
9. Nuisances, 901.
10. Food and Drink.
a. Sale of Unsoxmd Meat, 902.
b. Adulteration of Food.
i. Offences Generally, 904.
ii. Analysis, 910.
iii. Persons Liable, 911.
iv. Prosecution, 912.
V. Defences to Prosecution, 915.
c. Margarine, 917.
d. Fertilisers and Feeding Stuffs, 918.
11. Smoke, 920.
12. Water Supply, 921.
13. Cinematograph. See title Cinemato-
graph.
14. Indecent or Profane Language, 922.
15. Foreshore, 922.
Vn. Expenses.
1. Notice to do Works, 923.
2. Apportionment, 924.
3. Arbitration, 926.
4. Proceedings for Recovery, 927.
Vm. Eates.
1. Liability.
a. Property Liable to Lower Eate,
930.
b. Exemption, 932.
2. Mandamus to Enforce, 933.
3. Misapplication of, 934.
4. Proceedings, 934.
IX. Liability of Authorities.
1. Action.
a. Generally, 935.
b. Negligence, 935.
2. Compensation for Damages, 937.
A. IN METROPOLIS.
See METEOPOLIS.
B. OUTSIDE METROPOLIS.
I. AUTHOEITIES.
1. County Council.
See also Vol. IX. 346, 1915.
Acting as Member of a County Council.] —
M., a member of a county council, was pre-
sent at a meeting of that body during the
reading of the minutes of the previous meet-
ing, and took part in a discussion on a matter
not on the agenda — namely, a circular draw-
ing attention to the disqualification of members
who directly or indirectly derived any financial
benefit from certain county schemes. At the
close of that discussion M. retired from the
meeting, having come to the conclusion that
865
LOCAL GOVEBNMENT.
866
he -was not qualified any longer to be a
member of the council. Per Cherry, L.C.J. :
M had acted as a member of the council.
Keeffe v. McMa}ion, [1915] 2 Jr. R. 312—
K.B. D.
2. District Council.
See also Vol. IX. 351, 1919.
a. Election.
Nomination Paper — Name of Candidate —
Misnomer.] — A candidate for election as rural
district councillor described himself in his
nomination paper as Michael B. Walsh, the
name in which he appeared in the register of
voters, and which he always assumed, and
signed in transactions requiring his signature.
His mother's name was Barry, and he had
added the initial " B."' to the Christian name
" Michael " to distinguish him from others in
the district named Michael Walsh. The
deputy returning officer rejected the nomina-
tion paper on the ground that it did not comply
with the terms of rule 4, sub-rule 2 of the
County and Rural District Councillors
(Ireland), No. 2, Election Order, 1889
[c/. rule 4, sub-rule 2 of the (English) Rural
District Councillors Election Order, 1898, and
the same rule of the (English) Urban District
Councillors Election Order, 1898], by setting
out the surname and other name or names in
full : — Held, that under the circumstances the
name of the candidate was properly stated
in accordance with rule 4, sub-rule 2; that,
even assuming there was a misnomer, it was
cured by rule 32 of the said Order [corre-
sponding to rule 38 of the English Rural
District Councillors Election Order and rule 32
of the English Urban District Councillors
Election Order] ; and that a peremptory writ
of mandamus shoiild issue to the deputy
returning officer directing him to include the
prosecutor's name in the list of candidates
validly nominated. Reg. v. Plenty (38 L. J.
Q.B. 205; L. R. 4 Q.B. 346) followed. Mather
V. Brown (45 L. J. C.P. 547: 1 C.P. D. 596)
distinguished. Rex v. Casey. [1914] 2 Ir. R.
243-K.B. D.
b. Members.
Chairman — First Meeting of Council — Right
of Chairman of Previous Council to Preside.]
— At the first meeting of a newly elected
urban district council, the chairman of the
previous council took the chair and gave a
casting vote upon the election of a chairman
for the ensuing year : — Held, that he was not
entitled to act as chairman at the meeting
merely by reason of his having been chairman
of the previous council. Held, further, that
the members of a council have an inherent
right to elect a chairman, and that the new
urban council should therefore have elected a
chairman for the purpose of carrying on the
business of the meeting, which would include
the election of a chairman for the ensuing
year. Held, further, that this course might
have been adopted under rule 5 of the rules
in Schedule I. of the Public Health Act, 1875,
which provides for the case of a chairman
being absent from a meeting. Rex v. Row-
lands; Beesly, Ex parte, 80 L. J. K.B. 123;
[1910] 2 K.B. 930; 103 L. T. 311; 74 J. P.
453 ; 8 L. G. R. 923 : 54 S. J. 750 ; 20 T. L. R.
658— D.
Combination of Urban District Council with
Another Authority to Provide Joint Hospital —
Officer of Joint Managing Hospital Committee
— Person Holding "paid office under"
Council.] — Under the jjowers of an enabling
statute a borough and a district council
entered into an agreement for the provision of
a joint hospital. Under that agreement a com-
mittee was formed, for administering the
hospital, consisting of twelve members, six
appointed by the borough and six by the
district council from their members respec-
tively. To this committee the parties to the
agreement delegated all their powers with
reference to the management, maintenance,
and otherwise of the hospital. The committee
appointed, paid, and dismissed its own officers,
including, as their paid clerk, the appellant,
who was also chairman of the district council.
The fund out of which his salary was paid
was provided by a pro rata contribution from
the borough and the district council : — Held,
that the appellant held a paid office under the
district council, and was consequently dis-
qualified from acting as such chairman by
section 46, sub-section 1 (d) of the Local
Government Act, 1894, and had committed an
offence under that Act in so acting. Greville-
Smith V. Tomlin, 80 L. J. K.B. 774;
[1911] 2 K.B. 9; 104 L. T. 816; 75 J. P. 314;
9 L. G. R. 598— D.
Disqualifications — Absence from Meetings —
Illness or Reason Approved by the Council or
Board.] — Illness in fact is a sufficient rea.^on
to prevent a member of a council of a parish,
or of a district other than a borough, or of a
board of guardians, who has been absent from
meetings of a council or board for more than
six months consecutively from being disquali-
fied by section 46, sub-section 6 of the Local
Government Act, 1894, for holding office; and
it is not necessary that the council or board
should " approve " of the reason of one of
their members for his absence from that
cause. Rex v. H union ; Hodgson, Ex parte,
9 L. G. R. 751 ; 75 J. P. 33-5- D.
c. General Powers and Duties.
Right of Way — Aid in Defence of Action —
Joinder of District Council as Defendants —
Claim for Declaration and Injunction —
Declaratory Judgment.! — A district council
who, under the provisions of section 26 of
the Local Government Act, 1894. elect to aid
members of the public in maintaining a right
of way action, may be properly joined ns
parties to the action. Where the council
assert the existence of a right of way.
although they have not by their servants or
agents entered on the land in question, the
landowner may allege that they threaten and
intend to do so, and may obtain a declaratory
judgment against them thnt the right of way
does not exist, together with an injunction to
restrain them from exercising any such alleged
28
867
LOCAL GOVEENMENT.
868
right. Shafto v. Bolckow . Vaughan d Co.
(56 L. J. Ch. 735; 34 Ch. D. 725) and Hext
V. Gill (L. E. 7 Ch. 699) followed. ThornhiU
V. Weeks {No. 1), 82 L. J. Ch. 299; [1913]
I Ch. 438; 108 L. T. 892; 77 J. P. 231;
II L. G. R. 362: 57 S. J. 477— Swinfen
Eady, J.
District Council Joined as Co-defendants
— Right of Way neither Claimed nor Denied —
Motion to Strike out — Embarrassing — Costs.]
— A district council who have elected, under
the provisions of section 26 of the Local
Government Act. 1894, to aid others in defend-
ing a right of way action, and who, though
unwilling to become active parties to the suit,
have themselves been joined as co-defendants,
may assert in their defence that the public
right of way is neither claimed nor denied
by them. Such a pleading does not embarrass
or fail to disclose an answer, within the mean-
ing of Order XIX. rule 27 or Order XXV.
rule 4. But semble, such a pleading would
not prevent the council being ordered to pay
the costs of the action if the plaintiff should
succeed. ThornhiU v. Weeks (No. 2), 82 L. J.
Ch. 485; [1913] 2 Ch. 464; 109 L. T. 146;
II L. G. E. 1183— C.A. Affirming, 77 J. P.
327; 57 S. J. 645— Neville, J.
Council's Resolution to Defend — Action —
Judgment for Plaintiff — Right to Costs
against Council.] — A district council, acting
under section 26 of the Local Government
Act, 1894, became co-defendants in a right of
way action, and in answer to a claim for a
declaration that there was no such right
asserted that a public right of way was neither
claimed nor denied by them. They then pro-
ceeded to take up the whole defence until the
trial, and failed to establish their case : —
Held, that the plaintiffs were entitled to a
declaration with costs against all the defen-
dants, including the district council. ThornhiU
V. Weeks (No. 2) (82 L. J. Ch. 485);
[1913] 2 Ch. 464) followed. Rex v. Norfolk
County Council (70 L. J. K.B. 575:
[1901] 2 K.B. 268) and Offin v. Rochford
Rural Council (75 L. J. Ch. 348: [1906] 1 Ch.
342) distinguished. ThornhiU v. Weeks
(No. 3), 84 L. J. Ch. 282; [1915] 1 Ch. 106;
III L. T. 1067 ; 78 J. P. 154 : 12 L. G. R. 597
— Astbury, J.
Whether Joinder of Attorney-General
Necessary. 1 — In an action by a rural district
claiming a declaration that a certain road was
a public right of way,— J/c/d, that it was not
necessary that the Attorney-General should be
joined as plainHff. Newton Abbot Rural
Council V. WiUs. 77 J. P. 333— Swinfen
Eady, J.
Right of Parochial Elector to Inspect Docu-
ments — Threatened Litigation — Opinion of
Counsel — "Documents" — Mandamus.^ —
A parochial elector threatened to take legal
proceedings against a district council, who
thereupon submitted a case for the opinion of
counsel, and an opinion was given. The
parochial elector claimed a right to inspect
the case and opinion under sub-division 5 of
section 58 of the Local Government Act, 1894 :
— Held, that the case and opinion were
" documents " within the meaning of the sub-
section, and that the parochial elector had a
right to inspect them ; but the Court in the
exercise of its discretion refused in the circum-
stances to enforce that right by mandamus.
Rex V. Godstone Rural Council, 80 L. J.
K.B. 1184 ; [1911] 2 K.B. 465 ; 105 L. T. 207 ;
75 J. P. 413 ; 9 L. G. R. 665 ; 27 T. L. E. 424
— D.
When the clerk to a rural district council
is absent from his office he should leave some
person in authority who can produce the
council's books to any person entitled to see
them. Rex v. .Andover Rural Council, 77 J. P.
296; 11 L. G. R. 996; 29 T. L. E. 419—
Eidley. J.
3. Parish Council.
See also Vol. IX. 367, 1924.
Chairman — Election of New Council —
Annual Meeting of Council — Election of New
Chairman — Right of Former Chairman to
Vote.] — Sub-section 1 of section 3 of the Local
Government Act, 1894, provides that "The
parish council for a rural parish . . . shall
consist of a chairman and councillors." Sub-
section 8 provides that " At the annual meet-
ing, tjie parish council shall elect, from their
own body or from persons qualified to be
councillors of the parish, a chairman, who
shall, unless he resigns, or ceases to be quali-
fied, or becomes disqualified, continue in office
until his successor is elected." The chairman
of the parish council of a rural parish, on the
termination of his year of office as chairman,
is entitled under section 3 of the Local Govern-
ment Act, 1894, and rules 9 and 10 of the rules
in Part II. of Schedule I. to the Act to preside
at the annual meeting of the parish council
until his successor is elected, and, being a
member of the parish council, to give an
original vote in the election of the new chair-
man as well as a second or casting vote in
case of an equal division of votes, notwith-
standing that he may have been an elected
councillor in the retiring parish council and
have failed to be re-elected as councillor.
Rex V. Jackson : Pick. Ex parte, 82 L. J.
K.B. 1215 ; [1913] 3 K.B. 436 ; 109 L. T. l75 ;
77 J. P. 443: 11 L. G. R. 1237; 29 T. L. E.
735— D.
Assistant Overseer Clerk to Parish Council —
Guarantee Policy.] — A was appointed assis-
tant overseer of the parish of H, and by
virtue of his appointment under section 17,
sub-section 2 of the Local Government Act,
1894, he became clerk to the parish council
of H. The defendants entered into a bond
guaranteeing the faithful performance of his
duties as assistant overseer. A committed
defalcations in respect of moneys received -by
him as clerk to the parish council. In an
action to recover the amount of such defalca-
tions under the guarantee given by the defen-
dants :— He?rf, that the defalcations of H in
relation to the parish council accounts were
not covered by the terms of the bond guarantee-
ing the faithful performance of his duties in
869
LOCAL GOVEENMENT.
870
the office of assistant overseer. Cosford
Guardians v. Poor Law Guarantee Association,
103 L. T. 4,53 ; 75 J. P. 30 ; 8 L. G. R. 995— D.
Clerk to — Quo Warranto.] — See Rex v.
Hunton; Hodgson, Ex parte, post, col. 876.
II. CONTRACTS BY AND WITH
AUTHORITIES.
See also Vol. IX. 369, 1925.
Contract Exceeding 50/. — Necessity for
Seal.J— The Public Health (Ireland) Act,
1878, s. 201, sub-s. 1 [corresponding to sec-
tion 174, sub-section 1 of the Public Health
Act, 1875], enacts that " every contract made
by a sanitary authority whereof the value or
amount exceeds 501. shall be in writing, and
scaled with the common seal of such
authority." The " value or amount " of a
contract within the meaning of this enactment
is the amount which, in the light of the facts
within the contemplation of the parties, and
in reference to which the contract is made,
would be recoverable by the contractor from
the sanitary authority on completion. Munro
V. Mallow Urban Council, [19111 2 Ir. R. 180
— K.B. D.
Contract to Make up Highway — Validity
— Part Performance — Specific Performance.]
• — The plaintiff was the owner of certain free-
hold land adjoining a highway known as Stag
Lane in a parish for which the defendants
were the urban authority. In 1908 the plain-
tiff submitted to the defendants plans for
the erection of thirty-six houses on this land
facing Stag Lane. The defendants approved
these plans, and they were signed by the
plaintiff and the chairman of the council. It
was also arranged between the plaintiff and
the chairman of the council that if the plaintiff
would throw a strip of his land twenty feet
wide and about one thousand feet in length
into Stag Lane, and level it, the council would
make up and adopt the same as a highway at
their own cost as the building of the houses
proceeded. A written agreement to this effect
was drawn up, dated May 26, 1909, and signed
by the plaintiff. It was not, however, signed
by or on behalf of the defendants, neither was
their common seal affixed. The plaintiff pro-
ceeded to erect the proposed houses, and gave
up and levelled the strip of land as part of
the highway according to the terms of the
agreement. The defendants then placed posts
and trees upon the strip, and exercised other
acts of ownership upon it. In 1912 the
plaintiff had nearly completed the erection of
the thirty-six houses, but the council had not
made up the road, and disregarded the requests
of the plaintiff to do so. In an action for
specific performance of the agreement of
May 26, 1909, — Held, that the agreement was
entered into by the defendants as an urban
authority under powers contained in the
Public Health Act, 1875, and not under the
powers of a highway board or surveyor of
highways ; and that as the power to purchase
land for widening a street contained in sec-
tion 154 of the Public Honlth Act, 1875,
includes power to pay in money's worth, an
agreement such as the present was within the
powers of the council. Held, also, upon the
construction of the agreement, that it was for
over 50Z. in value ; and that no conduct on the
part of the defendants having been proved
which could estop them from relying on the
fact that the agreement was not under seal,
as required by section 174 of the Public Health
Act, 1875, the original agreement was unen-
forceable, nor would any agreement to pay
quantum meruit be implied. Held, further,
that, although there was sufficient part per-
formance of the agreement to take it out of
the Statute of Frauds, the equitable doctrine
of part performance does not extend to con-
tracts by an urban authority so as to do away
with the necessity for obtaining the seal of
the authority in contracts falling under sec-
tion 174. Hoare v. Kingsbury Urban Council,
81 L. J. Ch. 666; [1912] 2 Ch. 452; 107 L. T".
492 ; 76 J. P. 401 ; 10 L. G. R. 829 ; 56 S. J.
704— Neville, J.
The equitable doctrine of part performance
discussed and distinguished from acquiescence.
lb.
Young if- Co. v. Royal Leamington Spa
Corporation (52 L. J. Q.B. 713; 8 App. Cas.
517) and Frend v. Dennett (27 L. J. C.P. 314;
4 C. B. (N.s.) 576) followed. 7b.
Work Done for Purposes of Local Govern-
ment Enquiry — Executed Consideration —
Benefit — Quantum Meruit.] — An urban
council, exercising the powers of the R.
Improvement Commissioners, applied to the
Local Government Board to sanction a loan
in order that they might, under powers con-
ferred by local Improvement Acts, purchase
and extend the pier at R. The Board directed
that a valuation and estimates should be
prepared by an independent expert for the
purposes of an enquiry. The council passed
and confirmed a resolution appointing the
plaintiff to value, estimate, and report, upon
agreed terms. His report was used for the
enquiry, but the Board refused to sanction
the loan and the scheme was not proceeded
with. The plaintiff claimed the amount of his
fees under a contract of employment or,
alternatively, on a quantum meruit. The
council refused payment on the ground that,
as there was no contract under seal, sec-
tion 174 of the Public Health Act, 1875, had
not been complied with : — Held, that the con-
tract was not made under the powers or for
the purposes of the Public Health Act, 1875,
but under the powers and for the purposes of
the Improvement Acts ; that section 174 of the
Public Health Act, 1875, had no application;
and that under the circumstances the plaintiff
was entitled to his fees on a quantum meruit.
Lawford v. BiUericay Rural Council (72 L. J.
K.B. 554; [1903] 1 K.B. 772) followed. Lea
V. Facey (55 L. .J. Q.B. 371; 17 Q.B. D. 139.
On app., 56 L. J. Q.B. 536; 19 Q.B. D. 352)
distinguished. Douglass v. Rhyl Urban
Council. 82 L. J. Ch'. 5-37; [1913] 2 Ch. 407;
109 L. T. 30; 77 .7. P. 373; 11 L. G. R. 1162;
57 S. J. 627 ; 29 T. T;. R. 605— Joyce, J.
Employment of Architect — Dismissal of
Architect before Work Completed — Right to
Recover on Quantum Meruit.] — At a meeting
871
LOCAL GOVERNMENT.
872
of the defendant council it was verbally
resolved that the plaintiff should be employed
as joint architect for the erection of a kursaal
which the defendants were authorised under
a private Act to erect. The plaintiff prepared
plans, and for some time did work in pursuance
of the resolution, but before the work was
finished he was dismissed. In an action
against the defendants, — Held, that, although
the contract was not under seal, the plaintiff
was entitled to recover on a quantum meruit
as the defendants had had the benefit of his
work in an employment within the scope of
their authority and for the purposes for which
they were created. Hodge v. Matlock Bath
Urban Council, 74 J. P. 374; 8 L. G. K. 958;
26 T. L. E. 617— A. T. Lawrence, J. Appeal
dismissed on terms, 75 J. P. 65 ; 8 L. G. E.
1127 ; 27 T. L. E. 129— C. A.
Agreement with Local Authority in Com-
promise of a Dispute — Necessity for Seal.] —
An agreement was made between a local
authority and an architect by which the
former agreed not to sue the latter in respect
of his alleged negligent supervision of a build-
ing contract on his agreeing to make the
defective work good :^Held, that this agree-
ment did not require to be under seal.
Leicester Guardians V. TroUope, 75 J. P. 197
— Channell, J.
"Concerned" in Contract.] — Certain com-
missioners agreed to purchase land for a public
purpose : — Held, that the fact that one of the
commissioners was the eldest son of a land-
owner whose property would be improved by
the proposed action of the commissioners, and
that he acted for his father in negotiations
with the commissioners, did not make him
" concerned " in the contract within the mean-
ing of section 286 of the Isle of Man Local
Government Act, 1886. Laughton v. Port
Erin Commissioners, 80 L. J. P.C. 73; [1910]
A.C. 565 ; 103 L. T. 148— P.C.
Public Water Supply — Covenant to Allow
Vendor's House a Reasonable Supply Free of
Charge — Enlargement of House — Presumed
Increased User — Lapse of Covenant — Covenant
to Supply Farm Buildings — Severable Con-
tracts— Motor House.] — A covenant by a local
authority to supply a small farmhouse with a
reasonable supply of water free of charge is
no longer binding if the house be so altered
and enlarged that the identity of the old
building is lost, and the measure of what
would have been a reasonable supply at the
date of the contract no longer ascertainable.
But a similar covenant, entered into at the
same time, to supply a reasonable amount of
free water to the farm buildings is still
enforceable, the covenants being severable;
and this is so, notwithstanding that the build-
ings have been let off to a neighbouring farmer.
A motor house, to which the water is carried
for the purpose of washing a car, is not, how-
ever, a " farm building " within the scope of
the covenant, and such user is unreasonable.
Hadham Rural Council v. Crallan, 83 L. J.
Ch. 717; [1914] 2 Ch. 138; 111 L. T. 154;
78 J. P. 361; 12 L. G. E. 707; 58 S. J. 635;
30 T. L. E. 514— Neville, J.
III. BOEEO\YING POWEES.
Credit of Fund or Rates — Mortgage — Money
Borrowed without Security — Payment of
Interest — Surcharge by Auditor.];— A municipal
corporation, having obtained the sanction of
the Local Government Board in accordance
with section 233 of the Public Health Act,
1875, to borrow a certain sum of money, pro-
ceeded to borrow the amount from their
bankers, and secured the repayment of the
advance by a mortgage of the rates. Subse-
quently they transferred their current account
and their loan account to other bankers, with
whom was deposited the sanction of the Local
Government Board, but who did not require
a mortgage or a transfer of the original mort-
gage. Certain members of the corporation
having signed cheques in payment of interest
on the loan, the district auditor surcharged
them in respect of such payment on the ground
that the corporation had borrowed money
without giving proper security for the sum
advanced — namely, by a mortgage of the rates.
A certiorari to bring up the certificate of sur-
charge was granted by the Court of Appeal,
on the ground that on the true view of the
facts the transaction was a transfer both of
the debt and of the mortgage by which it was
secured. Rex v. Locke; Bridges, Ex parte,
80 L. J. K.B. 358; [1911] 1 K.B. 680;
103 L. T. 790; 75 J. P. 145; 9 L. G. E. 103;
55 S. J. 139; 27 T. L. E. 148— C.A.
Qucure, whether section 233 of the Public
Health Act, 1875, prohibits a local authority
from borrowing money without securing the
repayment thereof by a mortgage of the rates.
lb.
Consolidated Loans Fund — Overdrafts on
Bank for Electrical Purposes — Repayments out
of Consolidated Loans Fund." — A corporation
possessed statutory powers to borrow moneys
(with the consent of the Local Government
Board) for the purposes of its electrical under-
taking. It also possessed various other
statutory powers to borrow moneys for various
other specific purposes. It further possessed
a consolidated loan fund for the purpose of
paying dividends upon its corporation stock
and of redeeming the same when redemption
became necessary, and it was entitled, in place
of exercising any statutory borrowing power,
to borrow money from this consolidated loans
fund, so far as the latter was not needed for
the time for the payments of dividends on
corporation stock. It did not, however, obtain
sanction from the Local Government Board to
borrow moneys for the purposes of its electrical
undertaking, but borrowed large sums for
these purposes by way of overdraft from its
bankers. Part of these sums was repaid from
time to time out of the consolidated loans
fund : — Held, that the overdrafts obtained
from the bank for the purposes of the electrical
undertaking in respect of borrowing powers
granted for other specific purposes were ultra
vires and illegal ; that the application of
moneys due to the consolidated loans fund in
repayment of these overdrafts was ultra vires
and illegal ; that the application of moneys due
to the consolidated loans fund in repayment
of these overdrafts was ultra vires and illegal ;
873
LOCAL GOVERNMENT.
874
and that the borrowing of moneys from the
bank for the purpose of the electricity account
otherwise than in the exercise of borrowing
powers with the sanction of the Local Govern-
ment Board was ultra vires and illegal.
Att.-Gen. v. West Ham Corporation, 80 L. J.
Ch. 105; [1910] 2 Ch. 560; 103 L. T. 394;
74 J. P. 406; 9 L. G. K. 433; 26 T. L. R. 683
— Neville, J.
IV. TEANSFER OF AREAS, DUTIES, AND
ADJUSTMENT OF LIABILITIES.
See also Vol. IX. 1932.
Alteration of Areas — Adjustment — Loan
Debt — Increase of Burden.] — By the Queen-
borough Extension Order, 1912 (confirmed by
the Local Government Board's Provisional
Orders Confirmation (No. 7) Act, 1912), cer-
tain portions of the rural district of Sheppey
were added to the borough of Queenborough.
An adjustment thereupon became necessary,
and reference was made to arbitration between
the corporation and the district council with
regard to certain matters, including a loan
debt incurred by the district council for the
purpose of constructing sewers and sewage
disposal works. No part of these works was
situated within the transferred area, but a
due proportion of the burden in respect of the
loan debt was upon the ratepayers of the
transferred area. The arbitrator found as a
fact that the ratepayers of the remaining area
derived no advantage from the fact that the
works remained in their area. The district
council claimed to be paid that part of the
debt outstanding which would have been borne
by the transferred area if the alteration of
area had not taken place. By the Local
Government Board's Provisional Orders Con-
firmation (No. 7) Act, 1912, s. 2 (which was
in effect the same as the Local Government
(Adjustments) Act, 1913, s. 1, sub-s. 1), it was
enacted that on any adjustment made other-
wise than by agreement in respect of matters
connected with this alteration of area provision
should be made for the payment to any council
or other authority affected by the alteration
of such sum as seemed equitable in respect of
any increase of burden properly thrown on the
ratepayers of the area of that council or other
authority in meeting the cost incurred by them
in the execution of any of their powers or
duties in consequence of the alteration of area :
— Held, that the increased rate which the rate-
payers of the remaining area would have to
pay as a result of the expenditure by the rural
district council in respect of the loan debt
remaining constant, while the number of rate-
payers had been diminished by the alteration
of area, was an increase of burden within the
meaning of section 2 of the Local Government
Board's Provisional Orders Confirmation
(No. 7) Act, 1912, and that therefore the claim
of the rural district council must succeed.
Queenborough Corporation v. Sheppey Rural
Council, 84 L. J. K.B. 337 ; [1915] 1 K.B. 356;
112 L. T. 305 : 79 J. P. 155 ; 13 L. G. R. 184
— Atkin, J.
Adjustment of Liabilities.] — A burgh
having extended its boundaries so as to
embrace part of the county area, the county
council, which had raised loans secured on the
county rates and repayable by instalments,
sought to recover from the burgh the amount
of these loans proportional to the assessable
area taken over by the burgh. The arbitrator
refused the claim on the ground that what was
sought was not an " adjustment of liabilities "
within the meaning of section 50 of the Local
Government (Scotland) Act, 1889 (of. sec-
tion 62 of the Local Government Act, 1888),
but compensation for loss of assessable area :
— Held, that such loans were " liabilities "
within the meaning of the section which
might be proper subjects for adjustment.
Caterham Urban Council v. Godstone Rural
Council (73 L. J. K.B. 589; [1904] A.C. 171)
distinguished. Midlothian County Council v.
Musselburgh Magistrates, [1911] S. C. 463 —
Ct. of Sess.
Observations on the nature of " liabilities "
which would be proper subjects for adjust-
ment, and on the considerations to be kept in
view in adjusting them. lb.
Guardians — Transfer of Duty — Rural Dis-
trict Council — Urban District Council.] —
Guardians who, as the sanitary authority, had
constructed sewers, were at common law under
a duty to dispose of their sewage so as not to
interfere with private rights and a liability to
others for injury caused by the escape of the
sewage : — Held, that this duty and liability
were transferred by section 25 of the Local
Government Act, 1894, to a rural district
council ; and the liability is also included in
a transfer to the urban district council, by an
order of the county council converting the
rural into an urban district, of the liabilities
attaching to the rural district council.
Glossop V. Heston and Isleworth Local Board
(49 L. J. Ch. 89; 12 Ch. D. 102) discussed and
distinguished. Jones v. Llanrwst Urban
Council (No. 1), 80 L. J. Ch. 145; [1911]
1 Ch. 393; 103 L. T. 751; 75 J. P. 68;
9 L. G. R. 222 ; 55 S. J. 125 ; 27 T. L. R. 133
— Parker, J.
Adjustment of Financial Relations — County
Borough — Contribution to County Expenses —
Grant of Court of Quarter Sessions to Borough
— Redemption of Liability of Borough to
Contribute.] — By section 32, sub-section 1 of
the Local Government Act, 1888, which pro-
vides for the adjustment of financial relations
between counties and county boroughs, it is
enacted that an equitable adjustment respect-
ing all financial relations between each county
and each county borough specified in the Third
Schedule to the Act shall be made by agree-
ment between the councils of each county and
each borough, and, in default of agreement,
by the Commissioners appointed under the
Act. By sub-section 3 (6) : "If the borough
is not at the passing of this Act a quarter
sessions borough, the borough council shall
contribute a proper share of the costs of and
incidental to the quarter sessions and petty
sessions of the county, and of and incidental
to the coroners of the county or any franchise
therein ; and if a grant of a Court of quarter
sessions is hereafter made to the borough, the
borough shall redeem the liabilitv to such con-
875
LOCAL GOVEENMEXT.
876
tribution on such terms as may be agreed
upon, or, in default of agreement, may be
determined by arbitration under this Act." A
grant of a Court of quarter sessions was made
to a county borough which was contributing
annually to the county in which it was situated
a share of the costs specified in section 32,
sub-section 3 (b) of the Local Government
Act, 1888. The county council having claimed
that the borough should redeem their liability
to such contribution under the provisions of
the section, and the borough having tendered
evidence before an arbitrator that the share
of the costs incurred by the county in respect
of the borough exceeded the amount of the
contribution. — Held, on appeal, that the words
" redeem the liability " in sub-section 3 (b)
did not mean that, although the county were
no longer to render services to the borough,
yet the annual payment was to be capitalised
for an amount which would bring in annually
the same sum as the county had been receiving
from the borough in respect of the services
which the county had been rendering, but had
ceased to render ; and that evidence was
rightly admitted to shew that in consequence
of the grant of quarter sessions to the borough
the county were relieved from incurring in
respect of the borough costs greater than the
sums they received for rendering the services.
Held, also, that where an arbitrator has
stated his award in the form of a Special Case
for the opinion of the Court, there is no power
to remit to the arbitrator otherwise than in
the terms of the Special Case. Yorkshire
(N. R.) County Council and Middlesbrough
Counhj Borough Council. In re. 83 L. J. K.B.
1004: [19141 2 K.B. 847; 110 L. T. 961;
78 J. P. 257'; 12 L. G. E. 555 ; 58 S. J. 431
— C.A.
Decision of Bailhache. J. (82 L. J. K.B. 308 :
[1913] 1 K.B. 93). varied. lb.
Between County Council and County
Boroughs — Powers of Arbitrator.] — An
arbitrator appointed under the Local Govern-
ment Act, 1888, to make a new equit-
able adjustment of the financial relations of
the county of Glamorgan and the county
boroughs of Cardiff and Swansea, by his award
apportioning the aggregate proceeds of the
local taxation licences and the estate duty
grant between these authorities directed that
out of such proceeds priority payments should
be made to the authorities representing the
payments which they were required to make
under section 23, sulD-section 2 (i.) (ii.) (iii.).
and section 34 of the Act, and that the
remainder of such proceeds should be divided
among them in the proportion of their respec-
tive rateable values. There were many main
roads in the county, few in the county borough
of Swansea, and none in the county borough of
Cardiff, and on an appeal by Case stated it
was contended on behalf of the county that the
arbitrator should have taken into account
among the priority payments the annual sums
expended by the authorities in respect of the
maintenance of their main roads. The Com-
missioners under the Act in making the
original adjustment had taken into account as
priority payments these last-mentioned sums.
There was no evidence that if these sums were
not taken into account the county would be
placed in a worse financial position within the
meaning of section 32, sub-section 3 of the
Act : — Held, that the duty of the arbitrator
was to make what he himself considered to be
an equitable adjustment, and that he was not
bound to follow the original adjustment of the
Commissioners ; that it could not be said that
the adjustment made by the arbitrator was
not an equitable adjustment because it did
not take the main road expenditure into account
as a priority payment ; and that the appeal
should be dismissed. Decision of Lawrence, J.
(12 L. G. K. 752), affirmed. Glamorgan
County Council v. Cardiff Corporation, 84 L. J.
K.B. 2073; [1915] 3 K.B. 438; 113 L. T. 356:
79 J. P. 905; 13 L. G. R. 1039— C.A.
" Property."] — A tramway company,
authorised by Act of Parliament to lay tram-
ways in a county, were bound, in every year
in which their profits sufficed to provide a
certain dividend, to pay the county 50L for
every mile of tramway laid in the county. A
portion of the county in which lines were
authorised but not laid having been transferred
to a burgh, — Held, that the contingent right
to payments from the tramway company was
not " property " within section 50 of the Local
Government (Scotland) Act, 1889, to be taken
into account in adjusting the financial
liabilities of the burgh and county. Lanark
County Council v. Motherwell Magistrates,
[1912] S. C. 1251— Ct. of Sess.
Y. OFFICEES.
See also Vol. IX. 1936.
Appointment of Town Clerk — Bight to
Prescribe Qualifying Examination.] — A resolu-
tion passed by an urban district council that
a candidate to be elected by the council at a
forthcoming election to fill the office, then
vacant, of town clerk, must have passed a
qualifying examination is valid. But a resolu-
tion the effect of w^hich is to interfere with the
discretion of the council at future elections in
making future appointments is ultra vires. Rex
V. Tralee Urban Council, [1913] 2 Ir. R. 59
—K.B. D.
Clerk to Parish Council.] — It is necessary,
on an application for a rule for a quo icarranto
information against a person appointed clerk
to a parish council or board, for the applicant,
if he relies upon the fact, to prove that the
members who voted for the person appointed
had not duly made the declaration required by
section 35 of the Municipal Corporations Act,
1835, as applied to rural district councillors
by the Rural District Councils Election Order,
1898 ; and the onus is not upon the person
appointed to prove that they had made such
declarations. Rex v. Hunton; Hodgson, Ex
parte, 9 L. G. R. 751; 75 J. P. 335— D.
Yestry Clerk — Duties — Preparation of Lists
of Voters — Checking Returns made by Owners
— Expense of Canvassing — Salary of Yestry
Clerk — Non-payment by Overseers — Remedy —
Mandamus.] — The proper remedy of the vestry
clerk of a parish against the overseers of the
LOCAL GOVERNMENT.
878
parish who have refused to pay his salary,
which by section 8 of the Vestries Act, 1850,
is chargeable upon and payable out of the
moneys raised for the relief of the poor, is by
writ of mandamus, and not by action of debt
or on the case. Rex v. Davies ; Peake, Ex
parte, 80 L. J. K.B. 993; [1911] 2 K.B. 669;
104 L. T. 778; 75 J. P. 265; 9 L. G. R. .564
— D.
The duties of a vestry clerk under section 7
of the Vestries Act, 1850, in regard to the
preparation of lists of voters do not include
the verification of the returns made by
owners to the overseers pursuant to section 9
of the Representation of the People Act, 1884,
and therefore the vestry clerk of a parish
cannot be called upon by the overseers to
undertake at his own expense the work of
making enquiries for the purpose of verifying
such returns. lb.
County Surveyor Attending by Direction of
County Council before House of Commons as
Expert Witness — Right to Special Fee.] —
Where a county survej'or attends the House of
Commons by direction of and on behalf of his
county council to give assistance as an expert
witness in opposing a bill before Parliament,
such attendance is not within his ordinary
duties, and he is entitled to a special fee
therefor in addition to his ordinary salarv.
Rex V. NeweU, [1911] 2 Ir. R. .535— K.B. D.
VI. JURISDICTION.
1. Steeets and Roads.
See also Vol. IX. 376, 1937.
a. Formation and Alteration of.
" New street " By-laws — Width and Con-
struction — Penal Character of By-laws — In-
tended Breach Abandoned — Injunction — " Lay-
ing out" Street — Nothing done on Street
Itself. 1 — The model l^y-laws of urban authori-
ties under section 157 of the Public Health
Act, 1875, with respect to the level, width,
and construction of new streets, are of a penal
character, and ought not to be construed so
as to impose on the party whose compliance
with them it is sought to enforce any greater
burden than the by-laws in their fair and
natural construction will allow. Att.-Gen. v.
DoTin, 81 L. J. Ch. 225; [1912] 1 Oh. 369;
106 L. T. 18; 76 J. P. 181; 10 L. G. R. 194;
56 S. J. 123; 28 T. L. R. 105— Warrington. J.
The by-laws refer, as regards the laying out
nf a new street, to a physical laying out.
and not to a metaphorical one ; and a person
does not " lay out " a new street within their
meaning merely by making a road a street
by building houses on the side of it, but only
if he does something on the street itself.
Observations of Collins, M.R., and Romer,
Tj.J., in Devonport Corporation v. Tozer
(72 L. J. Ch. 411; [1903] 1 Ch. 759) followed.
lb.
In 1907 the defendant bought a field sur-
rounded by a hedge, bordering on an occupa-
tion road about nineteen feet w'ide, which
had 1 een made up imder section 150 of the
Public Health Act, 1875, and on the other
side of which two houses had been built with
their sides turned towards the road. Ko
house fronted towards it. The defendant
submitted to the local authority, in whose
district the model by-laws were in force, plans
for building a row of houses on the field, to be
approached by a footpath a few feet wide,
leading from the road to the side of the houses
furthest from the road, and with an open space
of about sixteen feet between them and the
road. The local authority objected to the
plans on the ground of their non-compliance
with the by-laws ; and the defendant there-
upon removed the footpath, when it had
reached a length of about 150 feet, and in-
formed the authority that he had abandoned
the intention of laying it out. Instead, he
made the approaches to the houses on the
side of the road, putting gates in the hedge
opposite each house as it was completed, with
cement paths leading to the houses. He also
carried the drains under the road ; but he did
nothing on the road itself; nor had he made,
or proposed to make, the space between the
houses and the road part of the road : — Held,
that the footpath would have been a breach
of the by-laws, but that in view of the defen-
dant's abandonment of it there was no ground
for an injunction ; and that, while the defen-
dant by building the row of houses had made
the road a street, he had not laid out a street
within the meaning of the by-laws. lb.
Building Estate — Approval of Plans by
Local Authority — Right of Local Authority to
Consider Practicability.] — Where, under the
Public Health Act, 1875, a local authority have
the power to approve plans, they have power,
before approving them, to enquire into the
practicability of carrying them out. Rex v.
Tynemouth Corporation; Cowper, Ex parte,
80 L. J. K.B. 892; [191]] 2 K.B. 361;
105 L. T. 217; 75 J. P. 420; 9 L. G. R. 953
-D.
The applicant had submitted a plan to the
local authority shewing a proposed new street.
The local authority were aware of the exist-
ence of certain restrictive covenants enforce-
able by adjoining owners which might affect
the power of the applicant to carry out the
plan as submitted, and refused to approve
it : — Held, that the Court would not grant a
mandamus directed to the local authority to
hear and determine the application to approve
the plan. lb.
By-law Requiring Approval of Plans —
Right of Owner to Vary Deposited Plans." —
Where a local l)y-law requires that no person
shall commence to build in any new street
until the whole length of the street shall have
been defined to the satisfaction of the local
authority, and a plan for making a new street
has been deposited and approved and building
begun, but no order varying the position or
length of the street has been made imdcr
section 17 of the Public Health Acts Amend-
ment Act, 1907, then at any time if the rond
has not become a higinvay and the owner finds
that any part of it is not required for tlie
purpose of developing his building estate, he
may inclose such part and devote it to any
other purpose he pleases. Kirby v. Paignton
879
LOCAL GOVERNMENT.
880
Urban Council, 82 L. J. Ch. 198; [1913]
I Ch. 337; 108 L. T. 205; 77 J. P. 169;
II L. G. E. 305; 57 S. J. 266— Neville, J.
Resolution — Right of Ratepayer to Claim
Injunction without Joining Attorney-General.]
-^The plaintiff, a ratepayer in the rural dis-
trict of E., sought to restrain the county
council and the rural district council of E.
from acting on a resolution carrying into effect
a proposal of the latter council to make a new
road : — Held, that it was competent for the
plaintiff to sue without making the Attorney-
General a party. Weir v. Fermanagh County
Council, [1913] 1 Ir. R. 63— Eoss, J.
The proposal was defective as it omitted to
state the number of years within which the
money to be borrowed for the work should be
repaid : — Held, that this omission was fatal to
the proposal. lb.
The county council by resolution of January 13
approved of the proposal by resolution of
February 24, rescinded the resolution of Janu-
ary 13, and by resolution of May 15 rescinded
that of February 21 : — Held, that the county
council, in the absence of standing orders to
the contrary, had power to rescind the prior
rescinding resolution. 76.
Agreement to Give Land — Construction —
"Opening" of Street — Macadamising.] — The
respondent gave land to the appellant town to
form " a public street ... to be forthwith
opened by the said town for use as a public
street," and it was agreed between the parties
" that no special assessment shall be levied
upon the remainder " of the respondent's land
" to defray the cost of the opening of the "
street, " but this shall not be construed as
exempting the lands . . . from special assess-
ments for drains and macadamising such
street " : — Held, that the land of the respon-
dent was not liable to be assessed in respect
of the cost of grading and levelling and doing
other preliminary work in making the street.
Outremont Corporation v. Joyce, 107 L. T. 569
— P.C.
Approval of Plans Subject to Agreement
under Local Act — Estoppel.]— Section 32 of
the W. Local Board Act, 1890, provides that
" every undertaking or agreement in writing,
given by or to the board or by or on behalf of
any owner of property on the passing of plans
or for the removal of obstructions, or otherwise
in connection with the property of such an
owner, shall be binding upon the owner of the
property for the time being and upon his
successors in title and upon the board, and
may be enforced by either party in any Court
of summary jurisdiction by a penalty ..."
The appellant, in 1910, purchased a house
and garden, as to which his predecessor in
title had, in 1892, by agreement with the then
lo(.'al board under the above section, undertaken
whenever required by the board to give up so
much of the garden as the board might require
for widening a lane on which it abutted.
Before the completion of his purchase the
appellant had received a letter from the clerk
of the W. Urban District Council, in answer
to his enquiry, that the lane was a highway
repairable by the inhabitants at large, and
that the council had no outstanding charges
for private improvement expenses against the
property. In 1911 he received notice from the
respondent corporation (successors of the local
board and urban district council) to carry out
the agreement of 1892 in pursuance of section 32
of the Act. He objected that the agreement
was void for remoteness, that section 32 did
not apply, and that the council were estopped
by the letter of their clerk : — Held, that the
agreement of 1892 was enforceable against the
appellant ; that section 32 was not confined
to the removal of obstructions but applied to
the widening of highways, and was sufficient
to make the agreement binding upon the
successor in title of the owner who had entered
into it ; and that the letter of the town clerk
created no estoppel. Crane v. Wallasey Cor-
poration, 107 L. T. 150; 76 J. P. 326:
10 L. G. E. 523— D.
By-lavfs — Completion of Construction —
Private Road — Alteration after Completion.'
— A by-law of a local authority provided that
every person who should construct for use as :i
carriage road a new street intended to form
the principal approach or means of access to
any building should comply with certain
requirements as to the width of the carriage-
way and footways. In 1905 a portion of a
road on a building estate, then in the course of
development, was constructed as a new street,
in accordance with the by-law. The appellant
subsequently purchased the estate, and in 1910
continued the road by a section, which section
was also constructed as a new street in
accordance with the by-law. In 1911 he
further continued the road by another section,
which section was also constructed as a new
street in accordance with the by-law. The
whole, when completed, formed one road, and
terminated at each end in a public highway.
It had never been dedicated to the public, ami
remained a private road with buildings of a
residential nature abutting thereon. In 1913
the appellant, as owner of the road, and at
the request of the residents on the estate,
placed at one end of the road (the termination
of that section which was constructed in 1905 1
some piers and gates, which, when the gates
were open, limited the extent of the width of
the carriageway and footways to less than
that required by the by-law. He was sum-
moned before the Justices for unlawfully con-
structing a new street not in accordance with
the requirements of the by-law by reason of
the erection of the piers and gates, and was
convicted : — Held, that the conviction was
wrong. As the section of the road on which
the piers and gates were placed was completed
as a " new street " in 1905, it could not be
said that the placing of the obstruction in
1913 was in any way the construction of a
new street within the meaning of the by-law,
and there was nothing in the by-law to pre-
vent the appellant, as owner of a private road,
from making alterations in it which might
not have been permitted at the time of its
construction. Tarrant v. Woking Urban
Council, 84 L. J. K.B. 314 ; [1914] 3 K.B. 796 :
111 L. T. 800; 79 J. P. 22; 12 L. G. E. 1293
— D.
Whether section J 57 of the Public Health
Act, 1857, which empowers an urban authority
881
LOCAL GOVERNMENT.
882
to make by-laws with respect to the level,
width, and construction of " new streets,"
authorises the making of a by-law which
would constitute a reduction of the original
width of the street an offence, quare. lb.
"Part of a street" — Strip of Ground
Marked by Line of Pillars — Sufficiency of
Evidence.] — On an objection taken by the
appellants in pursuance of section 7 of the
Private Street Works Act, 1892, that a certain
strip of ground did not form part of the street
with which the urban district council were
dealing under the Act, the evidence shewed
that the strip in question had been shewn
upon a plan deposited in 1909 by the appellants'
predecessors in title, and approved by the
respondent council, in pursuance of the by-
laws as to new streets and buildings which
were in force in the district. On this plan the
strip was coloured green, and bounded on the
side adjoining the then existing street by a
dotted line, and on the other side by a proposed
corner shop which was to be set back in line
with existing buildings further along the
street. The shop had been built practically in
accordance with the plan; and a wall, which
had stood where the dotted line was marked,
had been taken down, and five large stone
pillars had been erected at intervals along its
site. The strip between the line of pillars and
the shop was partly asphalted in a similar
manner to the footpath of the main road round
the corner of the shop, and foot traffic passed
over it without interruption. The council had
previously purchased similar strips of ground
from the appellants' predecessors in title for the
purpose of widening the main road. After the
council had taken steps under the Private
Street Works Act, 1892, with respect to the
street, the appellants placed wooden rails
between the stone pillars and across the strip.
The Justices found that the strip of ground in
question was part of the street : — Held, that
there was sufficient evidence before the Justices
to support their finding. Bell v. Great Crosby
Urban Council, 108 L. T. 455; 77 J. P. 37;
10 L. G. E. 1007— D.
Footpath — Bank of Stream on which Foot-
path Ran being Eaten Away — Danger to
Public — Obligation to Protect.] — The appel-
lants were the owners of certain parts of the
bank of the river Mersey over which an ancient
footpath ran. There was no obligation on the
appellants to repair the footpath ratione
tenura. By the action of the weather and by
erosion caused by the Mersey eating away the
bank, portions of the bank, on which the
footpath ran, were washed away, and portions
of the footpath fell into the river, and further
portions were threatening to fall, and the way
was thereby rendered dangerous to persons
lawfully using the same The respondents,
the local authority for the district, called upon
the appellants under section 30 of the Public
Health Acts Amendment Act, 1907, to repair
and protect the bank, so as to prevent danger
therefrom : — Held, that section 30 did not
apply in such circumstances and tliat the
appellants were under no lial)ility to comply
with the notice served upon them. Cheshire
Lines Committee v. Heaton Norris Urban
Council, 81 L. J. K.B. 1119; [1913] 1 K.B.
325 ; 107 L. T. 348 ; 76 J. P. 462 ; 10 L. G. E.
972 ; 28 T. L. E. 576— D.
Per Darling, J. : The narrow strip of land
between the footpath and the river was not a
" bank " in the sense in which that expression
is used in section 30. Per Phillimore, J. :
The proper construction of section 30 is to
limit its application to artificially constructed
dangers. lb.
b. Fencing Land Adjoining Street.
Vacant Land Adjoining Street — Land Used
for "purpose causing inconvenience or annoy-
ance to the public " — Power of Local Authority
to Fence — Recovery of Expenses from Owner.]
— Section 32 of the Willesden Urban District
Council Act, 1903, provides that " If any land
in the district . . . adjoining any street is
allowed to remain unfenced or the fences
thereof are allowed to be or to remain out of
repair and such land is in the opinion of the
council owing to the absence or inadequate
repair of any such fence a source of danger to
passengers or is used for any immoral or
indecent purposes or for any purpose causing
inconvenience or annoyance to the public,"
then, after notice to the owner or occupier,
" the council may cause the same to be fenced
or may cause the fences to be repaired in such
manner as they think fit and the expenses
thereby incurred may be recovered from such
owner or occupier summarily as a civil debt."
The appellant erected, round some vacant land
belonging to him within the district of the
respondent council, a barrier consisting of posts
three feet four inches high and eight feet apart
with a rail along the top. This barrier was
not out of repair. The respondent council
served upon the appellant a notice stating that
the land, owing to the absence of a proper
fence, was used for a purpose causing incon-
venience or annoyance to the public and
requiring him forthwith properly to fence in
the land. The respondents subsequently erected
round the land an " economic " fence and sued
the appellant to recover the expenses thereby
incurred. The Justices held that it was for
the council and not for them to decide whether
the land was used for a purpose causing
inconvenience or annoyance to the public, and
that as the council had decided that the land
was being so used they could recover : — Held,
that the decision of the Justices was wrong ;
that the user of the land for a purpose causing
inconvenience or annoyance to the public must
be proved by evidence of the fact in the pro-
ceedings before the Justices ; and that the case
should be remitted to the Justices in order that
the respondents might have the opportunity of
giving such evidence. Upjohn v. Willesden
Urban Council, 83 L. J. K.B. 736; [1914]
2 K.B. 85; 109 L. T. 792; 78 J. P. 54;
11 L. G. E. 1215 ; 58 S. J. 81 ; 30 T. L. E. 62
— C.A.
c. Regulating Traffic.
Order by Local Authority Regulating Traffic
in Streets^" In any case when the streets are
thronged or liable to be obstructed " — Prohibi-
883
LOCAL GOVERNMENT.
884
tion of Hawkers Selling Fruit from Barrows
in Certain Streets during Certain Hours —
Validity of Order." — Section 21 of the Town
Police Clauses Act, 1847, enables the local
authority from time to time to make orders
" for preventing obstruction of the streets
in all times of public processions,
rejoicings, or illuminations, and in any case
when the streets are thronged or liable to be
obstructed." A local authority made an order
in which, after reciting that certain streets
specified in the schedule were, between the
hours of ten in the forenoon and eight in the
afternoon, thronged and liable to be obstructed
on all days except Sundays, prohibited coster-
mongers and hawkers from using those streets
during those hours for selling fruit, &c., from
barrows : — Held, that the local authority were
entitled under section 21 to make a general
order applicable to any street which was
usually or habitually thronged or liable to be
obstructed, and that the power of the local
authority to make an order was not limited
to a case similar to those of public pro-
cessions, rejoicings, or illuminations. Teale v.
Williams. 83 L. J. K.B. 1412; [1914] 3 K.B.
395; 111 L. T. 285: 78 J. P. 383: 24 Cox C.C.
283; 12 L. G. E. 958— D.
Meaning of " left or near side of the road."]
— A by-law of a borough council miposed a
penalty on any person who should drive any
carriage in the borough and should not keep
the same on the left or near side of the road,
except in cases when he should have occasion
to pass any other carriage, or of actual neces-
sity or some sufficient reason for deviation
therefrom. A lorry was driven for about
380 yards in a street from 29 J to 31 feet wide,
so that its near-side wheels were about ten
feet from the kerb on the near side, whilst
its off-side wheels were within a few inches
of the centre of the road, but never crossed
the centre line. There were two sets of
tramway lines in the street, and electric
tram cars passed every two or three minutes,
but none passed nor were there other vehicles
in the street at the time, and no one was
obstructed or inconvenienced : — Held, that so
long as the off-side wheels of the lorry were
kept within the centre line of the roadway
it was on the " left or near side of the road,"
notwithstanding the presence of the tramway
lines ; that the by-law did not require the
driver to keep his near-side wheels as near
as he conveniently could to the kerb on the
near side ; and that the Justices were wrong
in convicting him of having infringed th(j
by-law. Bolton v. Everett. 105 L. T. 830;
9 L. G. E. 1050: 75 J. P. 534; 22 Cox C.C.
632— D.
2. BlILDIXOS.
See also Vol. IX. 390. 1948.
a. Definition.
New Buildings — Conversion of Dwelling
Houses into Warehouse — Notice to Local
Authority — Deposit of Plans.] — Section 36 of
the Bolton Corporation Act, 1901, provided
that the conversion of a dwelling house into
any other building not intended for human
habitation " shall for all purposes of the
former Acts and this Act and of any by-law
made thereunder respectively be deemed to
be the erecting of a new building." By order
of the corporation two adjoining dwelling
houses were compulsorily closed as unfit for
habitation ; whereupon the owners let them
to tenants who used and occupied them for
two and a half years as separate warehouses.
The owners subsequently made certain in-
terior alterations so as to convert the two
warehouses into one, intending to occupy the
same themselves as a warehouse. They
failed, however, to give any notice of con-
version to the corporation, nor did they
deposit plans before making the alterations.
Upon proceedings against them by the cor-
poration for contravening the above section
Justices were of opinion that these premises
were warehouses and not dwelling houses at
the time of the alterations, that no offence
had been committed, and dismissed the in-
formation : — Held (Darling, .J., dissentiente) ,
that the case was one of the conversion of
one class of building — namely, a dwelling
house, into another class of building — namely,
a warehouse — and consequently the work
which was being done came within section 36
as the conversion of a dwelling house into
any other building not intended for human
habitation. It therefore became the erection
of a new building for which notices should
have been given and plans and details de-
posited in accordance with the by-laws.
Morgan v. Kenyan, 110 L. T. 197; 78 J. P.
66; 12 L. G. E. 140— D.
Erection and Occupation of New Building —
No Notice to Local Authority.] — The appellant
was summoned for erecting and occupying a
new building without having given notice to
the local authority and without having de-
livered plans, &c., contrary to the provisions
of the local authority's by-laws. It was
proved that the appellant had from 1909 till
April, 1912, occupied and used as a dwelling
house two vans standing at right-angles to
one another; that in April, 1912, he removed
these vans, and on the ground previously occu-
pied by them built a dwarf wall of brickwork ;
that he then brought back the vans, placed
them side by side, one of them standing partly
on blocks of wood and partly on the dwarf
wall ; that he cut part of the side of one of
the vans and caused it to be placed against a
brick chimney stack which was built into the
opening created in the side of the van ; that
new brickwork was added to the flue and a
chimney stack erected, this being built right
into the side of the van ; that a mortar joint
was made between the vans and the dwarf
wall ; that the appellant then occupied the
vans as a dwelling house. Upon these facts
the Justices found that the appellant had
erected a new building without having given
notice to the local authority and without
having delivered plans ; they further found
that he had occupied them before they had
been certified as fit for human habitation ;
they accordingly convicted the appellant : —
Held, that there was evidence which war-
885
LOCAL GOVERNMENT.
886
ranted this conclusion. James v. Tudor.
77 J. P. 130; 11 L. G. E. 452— D.
Re-erection of Buildings— Part of Old Build-
ing Pulled Down and New Part Erected —
"New building" — Notice of Intention to
Erect— Plans of Whole Building— By-laws of
Local Authority.] — The by-hiw of a local
authority, made and approved in 1905, pro-
vided that " Every person, who shall intend
to erect a building, shall give to the council
notice in writing of such intention . . . and
shall at the same time deliver or send . . .
complete plans and sections of every floor of
such intended building ..." Section 23 of
the Public Health Acts Amendment Act, 1907,
which came into force in the district of the
local authority in 1909, provides that, for the
purposes of the Act and the Public Health
Acts and any by-laws made thereunder, the
following operation — namely, the re-erection,
wholly or partially, of any building of which
an outer wall is pulled down or burnt down
to or within ten feet of the surface of the
ground adjoining the lowest storey of the
building shall be deemed to be the erection
of a new building. The owners of an old
building, which was erected before by-laws
came into existence, piilled down a part in-
cluding some of the outer walls, leaving the
remaining part of the premises standing, and
gave notice in writing to the local authority
of their intention to erect on the site of the
part pulled down a new part, the notice being
accompanied by plans and sections of the new
part, but they gave no notice as to, or plans
or sections of, the whole building : — Held,
that, under .section 23 of the Act, the whole
building — that is, the old part and the new
part — was to be deemed to be a new building,
and the owners were therefore bound to send
to the local authority notice as to, and plans
and sections of, the whole building. Leonard
V. Hoare rf; Co., 83 L. J. K.B. 1861; [1914]
2 K.B. 798; 111 L. T. 69; 78 J. P. 287;
12 L. G. R. 844; 30 T. L. R. 425— D.
The by-laws of a local authority, made and
approved in 1906, provided that every person
who intended to erect a building should give
notice in writing of such intention, and
deliver complete plans and sections of every
floor. Section 23 of the Public Health Acts
Amendment Act, 1907, provides that " for
the purposes of this Act and the Public Health
Acts, and any bye-laws made thereunder, (a)
the re-erection, wholly or partially, of any
building of which an outer wall is pulled
down to within ten feet of the surface . . .
shall be deemed the erection of a new build-
ing." The appellants pulled down part of a
very old inn, including certain outer walls,
but left the rest standing. They gave notice
in writing to the local authority of their inten-
tion to erect a new part on the site of the
old part pulled down. This new part was to
fit into the part left standing. With the
notice plans and section of the new part
were sent, but not of the whole of the building
— that is, the part left standing and the new
part. The local authority admitted that if
the portion of the old building left standing
was not, and should not be, treated as part of
a new building, by-law 104 had been com-
plied with by the building owners ; but on
the decision of Leonard v. Hoare d- Co.
(83 L. J. K.B. 1361; [1914] 2 K.B. 798), in
which it was held that the present appellants
were erecting what must be deemed a new
building, they refused to pass the plans.
Thereupon a rule nisi for a mandamus was
obtained : — Held, that, upon the true con-
struction of section 23 of the Act of 1907, only
such part of a building as had been pulled
down to be re-erected was to be deemed a
new building ; and as in that view the appel-
lants had conformed to the by-laws, the rule
must be made absolute. Rex v. Foots Cray
Urban Council, 85 L. J. K.B. 191; 113 L. T.
705 ; 79 J. P. 521 ; 13 L. G. R. 1027 ; 59 S. J.
597— C. A.
Conversion into more than one Dwelling
House — Rejection of Plans by Corporation —
Conversion nevertheless Completed — Failure of
Corporation to Determine which of New
Dwelling Houses Original Dwelling House —
Proceedings for Breach of By-law.] — Section 21
of the Liverpool Improvement Act, 1882,
enacts that " the conversion into more than
one dwelling-house of any building originally
constructed as one dwelling-house only shall
be deemed for the purposes of this Act and of
any . . . bye-law in force within the City to
be the erection of a new dwelling-house or
dwelling-houses and in cases of division or
conversion of a building into more than one
dwelling-house the Corporation shall determine
which (if any) one of the houses formed out
of the previously existing house shall be
deemed to be the old or original dwelling-
house " ; and by-law 4 of the Liverpool
Corporation By-laws with respect to New
Buildings, 1890, provides that " every new
dwelling-house . . . shall, . . . have at the
rear thereof an open space. ..." The
respondent deposited with the city authorities
a plan shewing a proposal to convert certain
premises into three separate dwelling houses.
The plan was disapproved, and notice to that
effect was sent to the respondents. The
respondents, nevertheless, proceeded with the
conversion of the premises and completed the
work. The new dwelling houses created by
the conversion did not comply with the re-
quirements of by-law 4 above, and the
respondents were summoned. They contended
that, as the corporation had failed to make
the determination required by section 21 of
the Liverpool Improvement Act as to which
(if any) of the houses formed out of the pre-
viously existing house should be deemed to be
the old or original dwelling house, the pro-
ceedings were irregular and should be dis-
missed : — Held, that, the corporation having
disapproved the plan submitted to them by
the respondents, their failure to make the
determination did not affect the proceedings.
Alexander v. Tracy, 84 L. J. K.B. 1890;
79 J. P. 458— D.
Addition to House — Porch on Wheels.] —
The respondent placed in the garden in front
of his house a wooden porch which stood on
wheels, and which projected beyond the front
main wall of the house six and a half feet.
On proceedings being taken against him by
887
LOCAL GOVERNMENT.
the local authority for a contravention of
section 3 of the Public Health (Buildings in
Streets) Act, 1888, the Justices dismissed the
information, being of opinion that the porch
in question did not constitute an addition to
the house within section 3 : — Held, that the
Justices could on the facts properly come to
that conclusion. Sunderland Corporation v.
Charlton, 77 J. P. 127 ; 11 L. G. R. 484— D.
b. General Regulations.
Disapproval of Plans on General Grounds —
By-laws — Mandamus to Approve Plans
Granted after Completion of the Work.l — A
local authority cannot refuse their approval
of plans of a proposed new building, deposited
with them in pursuance of their by-laws,
where such plans comply with the by-laws and
the general law, merely on general grounds,
such as that the situation of the building and
its cesspool for slop water would be so close
to the seashore that the cesspool would be
filled by sea water at spring tides. And a
mandamus may, in special circumstances, be
granted directing the local authority to
approve such plans, even though the building
has been completed. Rex v. Bexhill Cor-
poration; Cornell, Ex parte, 9 L. G. R. 640;
75 J. P. 385— D.
One Domestic Building.l — The local
authority refused to approve the plans for
the erection of a barn adjoining to and at the
back of a dwelling house, on the ground that
their by-laws required that there must be an
open space at tlie rear of a new domestic
building : — Held, that the dwelling house and
proposed barn constituted one domestic build-
ing, and therefore that the plans did not
infringe the by-laws. Rex v. Preston Rural
Council; Longtoorth, Ex parte, 106 L. T. 37;
10 L. G. R. 238; 76 J. P. 65— D.
Restraining Local Authority from Approving
Plans Contravening By-law — Attorney-
General — Inspection of Deposited Plans —
Amendment of Writ.1 — Ratepavers in a
borough issued a writ claiming an injunction
to restrain the borough council from approving
certain deposited plans, an injunction re-
straining them from refusing to allow the
plaintiffs to inspect the plans, and an injunc-
tion to restrain the persons who had deposited
the plans from carrying them out. They then
moved for interim injunctions in the terms of
the indorsement on the writ : — Held, on
appeal against the refusal of the Judge in
chambers to grant any relief on the motion :
First, with regard to the approval of the
plans by the defendant council, that as at
the time of the hearing of the appeal the
plans had in fact been approved, though only
on the day when the appeal was opened, no
injunction could be granted ; secondly, with
regard to the council's refusal to allow inspec-
tion of the plans, that an injunction to
restrain a refusal to allow inspection was
equivalent to a mandatory order to allow
inspection, and that such an order could not
be made on an interlocutory application ; and
thirdly, with regard to the carrying out of
the plans by the other defendants, that, as
the plaintiffs had not joined the Attorney-
General, and had not sued on behalf of them-
selves and all other ratepayers in the borough,
and had not shewn any special injury to
themselves beyond a mere grievance, they
could not succeed without amending their
writ, and that no leave to amend would be
given for the purpose of an interlocutory
application. Stockport District Water Works
Co. V. Manchester Corporation (9 Jur. N.S.
266) and Tottenham, In re; Tottenham v.
Tottenham (65 L. J. Ch. 549; [1896] 1 Ch.
628), considered. Dover Picture Palace v.
Dover Corporation, 11 L. G. R. 971— C.A.
Building Line — Notice — Compensation — Pay-
ment or Tender — Mandatory Injunction.] —
Where a local authority on a house being
pulled down in a street prescribes, under
section 155 of the Public Health Act, 1875, a
building line to which the house to be rebuilt
in the same situation is to conform, it is not
necessary that the authority should expressly
inform the owner that it is proceeding under
that section, or specify a building line only
for the particular house, provided it makes
it clear that it is in reference to that house
that the building line is to be compulsory.
Att.-Gen. v. Parish, 82 L. J. Ch. 562;
[1913] 2 Ch. 444 ; 109 L. T. 57 ; 77 J. P. 391 ;
11 L. G. R. 1134: 57 S. J. 625; 29 T. L. R.
608— C.A.
Section 155 does not require that compen-
sation for the damage sustained by the owner
in setting back his building should be paid
or tendered upon any particular date, or
make such payment or tender a condition
precedent to the prescription of the building
line. lb.
Where the local authority have acted in
good faith in prescribing a building line the
Court will not refuse to enforce their decision
by mandatory injunction because the matter
may appear trivial and unimportant and of
little public benefit. lb.
"Land laid out for buildings" — Covering
over Watercourse — "Adjoining land."] — A
local Act provided that : " If any watercourse
or ditch in the district situate upon land laid
out for buildings, or on which any such land
abuts, requires in the opinion of the Council
to be wholly or partially filled up or covered
over, the Council may by notice in writing
require the owner of such land, before any
building is commenced or proceeded with, to
execute such works as may in their opinion
be necessary for effecting the objects afore-
said. ..." A certain firm purchased land
abutting on such a watercourse, and con-
temporaneously they sold a strip of the land
to 0., a person in their employ. The strip,
which for the greater part of its length was
only some six feet wide, extended along the
watercourse and entirely separated it from
the rest of the land. The firm commenced
to erect a factory on the land retained by
them and disregarded a notice of the urban
district council requiring them in pursuance
of the local Act to cover over the watercourse
before proceeding with the building of the
factory. Thereupon an action was brought
by the Attorney-General at the relation of
889
LOCAL GOVEKXMENT.
890
the council against the firm and 0. to restrain
them from proceeding with the factory until
they had culverted the watercourse. Before
the action came on for hearing the factory
was completed, and at the hearing the plain-
tiffs asked for an order upon the defendants
to culvert the watercourse : — Held, upon the
construction of the section, that it only
enabled the council to compel the owners for
the time being of land, which w-as then laid
out for building, and also abutted on a
watercourse, to cover over the watercourse
before proceeding to build; and held that the
action failed as against the firm because they
were not owners of land abutting on the
watercourse by turning sewage. On the
other hand, and never had had any intention
of building on his strip. Att.-Gen. v. Rowley,
L. G. R. 121; 75 J. P. 81— Swinfen Eady, J.
" Back - to - back " Houses — "Working
classes."] — By section 43 of the Housing,
Town Planning, &c. Act. 1909, the erection of
back-to-back houses intended to be used as
dwellings for the working classes is prohibited.
Houses standing back to back, containing
garages on the ground floor and living rooms
on the first floor, which were separated by a
party wall on the ground floor and by an air
shaft on the first floor, were erected and
intended to be used as dwelling houses for
chauffeurs : — Held, that the questions whether
these were back-to-back houses, and whether
they were intended to be used as dwellings for
the working classes, were questions of fact,
the first being whether they were substantially
back-to-back houses; and that a chauffeur was,
in the ordinary and popular sense, a member
of the working classes, and it was therefore
open to the Local Government Board, as a
matter of law, to find that the houses in
question were intended to be used as dwellings
for the working classes. White v. St.
Marylebone Borough Council. 84 L. J. K.B.
2142; [1915] 3 K.B. 249; 113 L. T. 447;
79 J. P. 350; 13 L. G. R. 977— D.
It was proposed to erect a block of three-
storeyed tenements, each storey containing
four dwelling-houses, two to the front and two
to the back. It appeared from the plans that
in the centre of each tenement there was a
space or well containing a common stair which
was roofed over, and that all the houses in
each tenement entered from this well. It also
appeared that in each storey the division
between the front and back houses was formed
by the walls inclosing the well in the centre
and by an unbroken wall common to the front
and back houses on each side of the well : — -
Held, that the proposed houses were " back-to-
back houses " within the meaning of section 43
of the Housing, Town Planning, &c. Act, 1909,
which prohibits the erection of such houses
as dwellings for the working classes. Murray-
field Real Estate Co. v. Edinburgh Magis-
trates, [1912] S. C. 217— Ct. of Sess.
Bungalows — Seaside Encampment — Alleged
Public Nuisance.] — Al)out forty bungalows of
two or three rooms apiece, constructed on foot-
ings above the level of the ground, had been
erected for occupation in the spring and
summer months on some eleven acres of low-
lying land between a sea-wall and the sea
without notice to the rural district council.
They were erected on separate sites or plots
let at weekly rents. There were also a con-
siderable number of tents on these sites. The
laud lay below the level of high tides, and
no system of drainage was practicable. Sets
of closets at different parts of the land were
erected for men and women respectively, and
their contents were removed and emptied on
land at a distance from the residences. The
water supply was from stand-pipes. In an
action by the Attorney-General, at the relation
of the rural district council, for an injunction
to restrain the defendants from continuing an
alleged public nuisance, and from continuing
to maintain the bungalows in contravention
of by-laws and from erecting more, and by the
rural district council for specific performance
of an agreement to take down existing
bungalows, — Held, on the evidence, that the
plaintiffs had failed to establish that the
encampment was a nuisance to the public
health. Att.-Gen. v. Kerr, 79 J. P. 51;
12 L. G. R. 1277— Lush, J.
Refreshment House — Keeping Open Con-
trary to Law — Shop for Sale of Fruit.] — A
local Act subjected to a penalty any person
occupying " a building or part of a building,
or other place of public resort for the sale or
consumption of provisions or refreshments of
any kind " who failed to comply with the
regulations contained therein as to the hours
of opening and closing : — Held, that the Act
applied to a fruiterer's shop. M'Intyre v.
Wilson, [1915] S. C. (J.) l~Ct. of Just.
c. Right of Entry on Premises.
Preventing Officers of Local Authority from
Entering.] — Preventing medical or other
officers of a local authority from entering^
working-class dwelling houses for survey and'
examination under section 36 (c) of the Hous-
ing, Town Planning, &c. Act, 1909. to carry
into effect the provisions of Part 11. of the
Housing of the Working Classes Act, 1890,
is an offence under section 51 of the latter Act,
and an order may be made against the owner
for entry to examine and survey under that
section. Arlidge v. Scrase, 84 L. J. K.B.
1874 ; [1915] 3 K.B. 325 ; 79 J. P. 467— D.
d. Closing Order.
Validity — Insanitary Houses.] — The form of
closing order of houses provided by the Local
Government Board under the powers bestowed
upon them bv section 41 of the Housing, Town
Planning, &c. Act, 1910, (Form 5 of the
Statutory Rules and Orders, 1910, No. 2), is
not valid when served upon an owner of
property unless it embody the note as to his
right of appeal that is printed at the end of
the prescribed form. Rayner v. Stepney
Borough Council, 80 L. J. Ch. 678; [1911]
2 Ch. 312; 105 L. T. 362; 75 J. P. 468;
10 L. G. R. 307 ; 27 T. L. R. 512— Neville. J.
Houses "unfit for human habitation" —
Reason of Unfitness — Circumstances External.
891
LOCAL GOVERNMENT.
892
to House — Insufficient Ventilation.] — A build-
ing may be "' unfit for human habitation "
within the meaning of section 41 of the
Manchester Corporation Waterworks and
Improvements Act, 1867, if it is so unfit for
any reason, such as insufficient ventilation,
and not only if it is so unfit because of some
structural or other defect existing in the build-
ing itself. Whether it is so unfit or not is a
question of fact to be determined by the cor-
poration in a judicial spirit. Semble, the
standard of fitness or unfitness to be applied
is that of the ordinary reasonable man. Hall
V. Manchester Corporation, 84 L. J. Ch. 732;
113 L. T. 465 ; 79 J. P. 385 ; 13 L. G. E. 1105 ;
31 T. L. R. 416— H.L. (E.)
Decision of the Court of Appeal (111 L. T.
182; 12 L. G. R. 688) affirmed. lb.
Appeal to Quarter Sessions — Time for
Appealing.] — Semble, that the time for appeal-
ing to quarter sessions from an order made
under the above section declaring the building
unfit for habitation runs from the date when
such order is affixed to the building. lb.
" Dangerous or injurious to health."] — A
local authority, acting under section 17, sub-
section 2 of the Housing, Town Planning, &c.
Act, 1909, issued, upon a representation by
their medical officer, a closing order with
regard to a tenement of dwelling houses, as
being, in the words of the statute, a " dwell-
ing house ... in a state so dangerous or
injurious to health as to be unfit for human
habitation " : — Held, first, that a tenement
of dwelling houses was a dwelling house in
the sense of the Act, and that a closing order
was competently issued with regard to a whole
tenement generally; secondly, that a closing
order was competently issued without specifying
as between two alternatives whether the house
was " dangerous " or " injurious to health,"
these not being alternative grounds for an
order, but the second being exegetical of the
first; thirdly, that, the closing order being in
a statutory form which did not require a
statement of the grounds upon which it was
issued, non-disclosure of these grounds in the
order did not render it inept ; fourthly, that
the closing order was comj>etently issued with-
out previous exercise by the local authority of
their statutory powers under section 15 to
require remedial works, and without affording
to the owner of the house an opportunity of
being heard. Kirkpatrick v. Maxwelltown
Town Council, [1912] S. C. 288— Ct. of Sess.
Intention of Owner to Convert into Ware-
houses — Demolition Orders — Appeal to and
Powers of Local Government Board.] — Where,
under the Housing, Town Planning, &c. Act,
1909. s. 17, a closing order in respect of a
dwelling house has been made by the local
authority and has become operative, and the
local authority, on taking into consideration
the question of the demolition of the dwelling
house, are of opinion that the dwelling house
has not been rendered fit for human habitation,
and that the necessary steps are not being
taken with all due diligence to render it so
fit, it is the duty of the local authority to
order the demolition of the building, under
section 18, although they may be satisfied that
there is no intention on the part of the owner
to use the house as a dwelling house, or that
prior to the demolition order the house has
been so altered as to become incapable of use
as a dwelling house. But the Local Govern-
ment Board, in the exercise of their appellate
jurisdiction under section 39 of the Act, have
power, notwithstanding that the local authority
may be bound to make a demolition order, to
quash or vary such order or to make such
other order as they may consider equitable
in the circumstances of the particular case.
Lancaster v. Burnley Corporation, 84 L. J.
K.B. 181; [1915] 1 K.B. 259; 112 L. T. 159;
79 J. P. 123 ; 12 L. G. R. 1319 ; 31 T. L. R. 13
— D.
A local authority, being satisfied that certain
dwelling houses were unfit for human habita-
tion, made closing orders in respect of them*
and the appellant, after the orders had become
operative, purchased the houses with notice
of the closing orders, but with the intention
of converting them into warehouses. Subse-
quently he proceeded to convert some of the
dw'elling houses into warehouses with the
result that they could not be used as dwelling
houses, and he gave notice to the local
authority of his intention to convert all the
houses into warehouses, submitting plans for
their approval, which plans were, however,
disapproved. After due notice to the appel-
lant the local authority considered the question
of the demolition of the houses and made
demolition orders in respect of them, being
satisfied that the houses were then unfit for
human habitation, and that the necessary
steps w^ere not being taken with all due dili-
gence to render them so fit. The appellant
appealed to the Local Government Board, con-
tending that, under the circumstances, the
demolition orders ought not to have been made.
The Local Government Board gave no decision,
but, for the purpose of arriving at a decision,
stated a Case for the opinion of the Court
upon questions of law arising in the appeals :
— Held, first, that, on the facts as stated, the
local authority were bound to make the
demolition orders; but secondly, that, in the
exercise of the appellate jurisdiction given by
section 39 of the Housing, Town Planning, &c.
Act, 1909, the Local Government Board were
not restricted to making orders which the local
authority might have made, but that they
could, on the facts stated, quash or vary the
demolition orders. 76.
Refusal to Determine Closing Order —
Appeal to Local Government Board — Order of
Board Dismissing Appeal — Procedure — Right
of Appellant to See Report of Inspector —
Right to a Hearing before the Board. 1 — Where
the decision of a question in dispute between
parties has been entrusted by statute to an
administrative body, the enquiry must be
taken, in the absence of directions in the
statute, to be intended to be conducted in
accordance with the ordinary procedure of that
body; and therefore, although they must act
judicially and in good faith, and give to both
parties an opportunity of presenting their case,
they are not bound to treat such a question as
893
LOCAL GOVERNMENT.
894
if it were a trial inter partes. In the case of
an appeal against a refusal by a local authority
to determine a closing order, closing a dwelling
house as being unfit for human habitation,
which appeal is, bv the Housing, Town Plan-
ning. &c. Act, 1909, to the Local Government
Board, it is not contrary to the principles
of natural justice that the Board should, in
accordance with its ordinary procedure, under
rules made under the statute, dismiss the
appeal without disclosing to the appellant the
report of an inspector made after a public
enquiry at which the appellant was repre-
sented" and without giving the appellant an
opportunity of being heard orally before the
Board itself. Local Government Board v.
Arlidge. 84 L. J. K.B. 72; [1915] A.C. 120;
111 L T. 905 : 79 J. P. 97 ; 12 L. G. E. 1109 ;
30 T. L. R. 672— H.L. (E.)
Decision of the Court of Appeal, sub nom.
Rex V. Local Government Board; Arlidge,
Ex parte (83 L. J. K.B. 86; [1914] 1 K.B.
160), reversed. //).
Service of Order on Lessee— Freeholder not
Known— Service of Order on Freeholder by
Leaving Order with the Inmate of the
Premises." — Where the defendant council
made all the usual enquiries, but were unable
to discover the owner of the freehold, and
accordingly served a sealed copy of a closing
order addressed to the owner of the premises
bv leaving it with a woman who was in
occupation thereof,— FeZd. that such service
was sufficient, and that for the purposes of
section 17, sub-section 3 of the Housing, Town
Planning, &c. Act. 1909, it was not necessary
that the order should be served personally.
Arlidge v. Hampstead Urban Council. 59 S. .J.
717_lSreville, J. Affirmed, 60 S. J. 43— C.A.
Statement of Special Case.l— The Housing,
Town Planning, &c. Act. 1909. allows any
person aggrieved bv a closing order to appeal
in Scotland to the "Sheriff [in England to the
Local Government Board], and enacts by
section 39 that the Sheriff [Local Government
Board] may " at any stage of the proceedings
on appeal " state a Special Case on a question
of law for the opinion of the Court -.—Held,
that such a Case must be stated during the
progress of the appeal, and cannot be stated
after the Sheriff [Local Government Board]
has given judgment. Johriston's Trustees v.
GlasgoiD Corporation. [1912] S. C. 300—
Ct. of Sess.
e. Demolition.
Dangerous Wall.] — Semble, although
Justices in making an order under section 75
of the Towns Improvement Clauses Act, 1847,
ordering the owner of a dangerous wall to take
it down, rebuild, or repair it, have jurisdiction
to enquire who is the owner of the wall, in
order to ascertain whether the proper notices
have been given, that enquiry is one pre-
liminary to the exercise of their jurisdiction,
and their decision as to ownership is not
conclusive in a subsequent proceeding to
recover the expenses. Rex v. Cork (Recorder),
[1913] 2 Tr. R. .35— K.B. T>.
Insanitary Dwelling Houses — Obstructive
Building— " Any building " — Workshop.! —
The expression '" any building " in section 38
of the Housing of the Working Classes Act,
1890, which provides for the removal of
" obstructive buildings," includes buildings of
every description, such as a workshop, and is
not confined to dwelling houses. Section 38
contains a complete code for fixing the -com-
pensation for the removal of an " obstructive
building " which is not a dwelling house.
Jackson v. Knutsford Urban Council, 84 L. J.
Ch. 305; [1914] 2 Ch. 686; 111 L. T. 982;
79 J. P. 73; 58 S. J. 756— Eve, .1.
f. By-laws.
Room Used for Human Habitation —
Scullery.]— By By-law 69 of the B. and E.
Urban District Council, "' Every person who
shall erect a new building and shall construct
any room therein so that it may be used for
huinan habitation shall comply with the follow-
ing requirements : If such room is not intended
to be used as a sleeping room he shall construct
such room so that it shall not be less in any
part thereof than 9 feet in height." The
respondents erected three sculleries eight feet
by eight feet six inches in area and eight
feet three inches in height only : — Held, that
the sculleries were not rooms constructed so
that they " may be used for human habita-
tion " within the by-law. Bain v. Compstall
Co-operative Society, 103 L. T. 759; 75 J. P.
76; 9 L. G. R. 7-5— D.
Chimneys — Flues — Thickness of Back —
Party Wall.]— By one of the by-laws of the
borough of E. it was provided as follows :
" Every person who shall erect a new building
shall cause the back of every chimney opening
in a party wail to be at least 9 in. thick, and
he shall cause such thickness to be continued
at the back of the flue ; such person shall cause
the back of every other chimney opening to
be at least 4Jin. thick if such opening be
in an external wall and 9 in. thick if such
opening be elsewhere than in an external
wall, and he shall cause such thickness to be
continued at the back of the flue. Provided
that where flues are constructed back to back,
the thickness at the back of such flues may be
not less than 4iin." -.—Held, that the proviso
contained in the above by-law had no applica-
tion in the case of flues in a party wall which
divided two adjoining houses. Miller v. Field,
110 L. T. .36 ; 78 J. P. 5 ; 12 L. G. R. 284— D.
Keeping Premises Open Contrary to
By-law.' — A corporation by-law provided that
" a person registered ... to keep or use any
. . premises as a place for public refreshment
shall not keep such premises open, or suffer
them to be kept open " except during hours
specified -.—Held, that proof that an accused
person had kept his premises open, or had
suffered them to be kept open, after the hours
specified was sufficient per se to establish a
contravention of the by-law without any proof
as to the purpose for which they were kept
open. M'Intyre v. Persichini, [1914] S. C
I J.) 126-Ct. of Just.
895
LOCAL GOVEKNMENT.
896
3. Sewers and Drains.
See also Vol. IX. 412, 426, 19fil, 1973.
Single PriYate Drain.] — A pipe connected
with the drains of several dwelling houses,
owned by different owners, and constructed by
the owners of those dwelling bouses on private
ground, as, and used as, a common conduit to
receive and carry away the sewage from those
houses brought down by the connecting drains,
is not a " sewer," but is a " single private
drain." Holy wood Urban Council v. Grainger,
[1913] 2 Ir. R. 126— K.B. D.
Conduit Used for Drainage of Roadway
and Cottages Belonging to one Owner — Cul-de-
sac — Highway.^ — By section 49, sub-section 1
of the Kingston-upon-Hull Act, 1903, " Where
two or more houses or premises are connected
with a single private drain which conveys their
drainage into a public sewer, the Corpora-
tion shall have all the powers conferred by
section 41 of the Public Health Act, 1875."
Section 49, sub-section 2, provided that sec-
tion 19 of the Public Health Acts Amendment
Act. 1890, should cease to be in force in the
locality, and section 49, sub-section 3. that the
expression " drain " should include a drain
used for the drainage of more than one build-
ing, whether owned or occupied by the same
person or not. Section 4 of the Act provided
that words to which meanings were assigned
by the Public Health Acts should have those
meanings, unless there was something repug-
nant or inconsistent in the subject or context.
By section 4 of the Public Health Act. 1875,
the word " premises " includes " messuages
buildings lands easements and hereditaments
of any tenure." The defendants were the
proprietors of a roadway and of a row of
cottages on each side of it. The roadway was
a cul-de-sac. As the result of a notice under
section 23 of the Public Health Act. 1875,
served on the defendants in 1876, they laid a
conduit under the whole length of the roadway,
a great part of which was outside the limit
mentioned in that section of 100 feet from
the public sewer with which it connects. This
conduit was used for surface drainage only,
and was fed by conduits from gullies in the
backyards of the cottages and by other conduits
from gullies in the roadway : — Held, that
there was no sufficient evidence that the road-
way had been dedicated to the public ; but
that, whether it had or not, the conduit under
the roadway was a " single private drain "
within section 49 of the local Act, the conduit
being an exclusive and private system of
drainage for the defendants' cottages and land
on each side of the roadway and the roadway
itself, the soil of which was vested in the
defendants. Per Bankes, Li.J. : " Premises "
in section 49 of the local Act must be taken
to mean premises in the same ownership as
one or more of the houses connected with the
single private drain." Hull Corporation v.
North -Eastern Railway, 84 L. J. Ch. 905;
60 S. J. 58— C.A.
Sewer or Drain — Underground Culvert for
Water of a Natural Watercourse."' — The mere
fact that a natural watercourse is culverted
or piped by the several owners of the lands
which are intersected by it does not make it
a drain or sewer so as to vest it in the local
authority under the Public Health Act, 1875.
Shepherd v. Croft, 80 L. J. Ch. 170; 103 L. T.
874— Parker, J.
Sewer — Natural Stream — Pollution.] — The
mere pollution of a natural stream or water-
course by turning sewage into it does not
convert it into a sewer. On the other hand, if
it is substantially a sewer, the fact that at cer-
tain portions of the year clean water flows
into it does not prevent it being a sewer. In
each case it is a question of fact and degree.
Att.-Gen. v. Lewes Corporation, 81 L. J. Ch.
40; [1911] 2 Ch. 495; 55 S. J. 703;
27 T. L. R. 581— Swinfen Eady, J.
Sewage Farm — Disciiarge of Sewage
Effluent — " Natural stream or watercourse " —
" Sewer."] — An agricultural ditch or channel
constructed by a landowner on his land for
the purpose of carrying off surface water, but
in which there is no constant flow of water
is not a " natural stream or watercourse
within the meaning of section 17 of the
Public Health Act, 1875. Phillimore v. Wat-
ford Rural Council, 82 L. J. Ch. 514; [1913]
2 Ch. 434; 109 L. T. 616; 77 J. P. 453;
11 L. G. R. 980; 57 S. J. 741— Eve, J.
Such a channel is a " sewer " within sec-
tion 4, but it falls within the first of the
three classes of excepted sewers enumerated
in section 13, and is not therefore vested in
the local authority. Sykes v. Sowerby Urban
Council (69 L. J. Q.B. 464; [1900] 1 Q.B.
584) followed. 76.
Grant of Right of Passage to Local
Authority — Effect.] — The grant of a right of
" passage and running of water " through a
drain or watercourse does not entitle the
grantee to discharge sewage effluent into such
drain or watercourse. lb.
Grant of Land for Sewage Works — Access
to Sewer.] — The common predecessor in title
of the plaintiffs and of the defendants granted
to the plaintiffs' predecessors the right to lay
a sewer through certain land, and from time
to time to repair, maintain and renew the
same, the grantees to reinstate the ground as
soon as possible after disturbing the same : —
Held, that the right of access by the plaintiffs
to the sewer was a right of access to it in the
condition in which it was when it was first
laid down, and that the defendants were not
entitled to alter the condition of the ground
as by increasing the quantity of soil above
the sewer to impose a greater obligation on
the plaintiffs in the execution of their right.
Birkenhead Corporation v. London and
'North-Western Railway (55 L. J. Q.B. 48;
15 Q.B. D. 572) distinguished. Thurrock
Grays and Tilbury Joint Sewerage Board v.
Goldsmith, 79 J. P. 17— Eve, J.
4. Water Closets.
See also Vol. IX. 429, 1978.
Privies — Notice to Owner to Substitute
Water Closets — Notice to Owner that he would
897
LOCAL GOVERNMENT.
898
be Charged with Cost of Work — Decision of
Local Authority — Appeal of Owner to Local
Government Board/ — A local authority passed
a resolution in pursuance of section 36 of the
Public Health Act, 1875, that the privies of
four houses were insufficient, and notices
were served upon the owner requiring him to
provide a water closet for each of the houses.
As the work was not carried out by the owner,
the local authority decided that their engineer
should carry out the work, and that the owner
should be charged with the cost of carrying
out the work. Notices of these decisions
were given to the owner, who, deeming him-
self aggrieved by the decisions, addressed a
memorial by way of appeal to the Local
Government Board under section 268 of the
Act of 1875, stating the grounds of his com-
plaint. The Local Government Board refused
to hear the appeal. Upon a rule nisi for a
mandamus to the Local Government Board
to hear and determine the appeal, — Held,
that the only right of appeal given by sec-
tion 268 of the Public Health Act, 1875, was
against the decision of the local authority
that the expenses incurred by the local
authority should be recovered in a summary
manner instead of being declared private
improvement expenses, and that, as the local
authority had not come to such a decision,
the appeal was premature, and the Local
Government Board were entitled to refuse to
hear it. Reg. v. Local Government Board
(52 L. J. M.C. 4; 10 Q.B. D. 309) applied.
Rex V. Local Government Board; Thorp, Ex
parte, 84 L. J. K.B. 1184; 112 L. T. 860;
79 J. P. 248; 13 L. G. E. 402— D.
Enforcement of Provision of Earth Closets.]
— Undisputed evidence was given by the sur-
veyor of a rural district council that he had
reported to them the insanitary condition of
certain houses, that his report was considered
by them, and that they directed the subse-
quent proceedings — namely, to enforce the
substitution of earth closets for privies in
some of the houses ; the minutes were pro-
duced of resolutions of the sanitary conmiittee
recommending that the work be carried out
(the owners having failed to comply with
notices to execute it), and that the expenses
be recovered from such owners, and after-
wards that proceedings be taken for recovery
of the expenses (the work having then been
executed by the council) ; and the minutes
were also produced of a resolution of the
council adopting the last-mentioned resolution
of the committee : — Held, that this was suffi-
cient evidence that the condition of the houses
and the means to be taken to improve it had
been properly considered by the council, so
as to enable them to recover the expenses
of the work under section 36 of the Public
Health Act, 1875. Bower v. Caistor Rural
Council, 9 L. G. R. 448; 75 J. P. 186— D.
5. Baths and Washhouses.
Swimming Bath— Power of Borough Council
to Let — Healthful Recreation — Cinematograph
Entertainment.]— By section 5 of the Baths
and Washhouses Act, 1878, a borough council
may in winter close their public swimming
bath and allow it to be used for purposes of
" healthful recreation " or exercise : — Held,
that the letting of the bath for a cinemato-
graph entertainment was a letting for a
" healthful recreation " within the meaning
of the above provision. Att.-Gen. v. Shore-
ditch Borough Council (No. 1), 58 S. J.
415; 30 T. L. R. 382— Eve, J. See next
case.
A local authority fitted up and let a public
swimming bath for certain afternoons and
evenings every week during the winter season
of 1913-14 for the purpose of cinematograph
entertainments. At these entertainments
music was performed and money taken at the
doors. The authority had obtained a music
licence. The Baths and Washhouses Act,
1878, s. 5, empowers a local authority for five
months in any year, between November and
March, to allow a public swimming bath " to
be used as ' an empty building ' " for " pur-
poses of healthful recreation," subject to a
proviso that it was not to be used for music.
The Baths and Washhouses Act, 1896, s. 2,
repealed this proviso, but enacted, by sub-
section (a) of section 2, that before any such
bath was used for " music " a licence must be
obtained ; and sub-section (6) of section 2 pro-
vided that no portion of the premises for
j which such licence was granted should be let
I " otherwise than occasionally," and that no
1 money should be taken at the doors : — Held,
that the bath was not being used as "an
empty building," within section 5 of the
Baths and W^ashhouses Act, 1878; that the
" music " was not incidental merely, but re-
quired a licence ; that the prohibitions in
section 2, sub-section (b) of the Act of 1896
were therefore applicable and had been con-
travened, and that the letting was illegal.
Att.-Gen. v. Shoreditch Borough Council
(No. 2), 84 L. J. Ch. 769; [1915] 2 Ch.
154; 112 L. T. 626; 79 J. P. 369;
13 L. G. R. 1144; 59 S. J. 439: 31 T. L. R.
400— C. A.
Decision of Joyce, J. (13 L. G. R. 154),
affirmed. lb.
6. Omnibuses.
Regulation Prohibiting Passengers from
Riding on Top of Omnibuses on Section of
Route — Notice to Passenger — Refusal to
Descend from Top — Delay of Omnibus — Wilful
Obstruction of Corporation's Servants in
Execution of their Duty.] — A municipal cor-
poration, having statutory authority to run
motor omnibuses, in view of the camber of
the road on a section of the omnibus route
made an order prohibiting passengers from
riding on the top of their omnibuses whilst
travelling over the section. The order was
made in the interest of the passengers and
notice thereof was exhibited on the top of
each omnibus, but no reference thereto was
made on the passengers' tickets. One of the
corporation's by-laws provided that " No
passenger or other person shall wilfully
obstruct or impede any officer or servant of
the Council in the execution of his duty upon
or in connection with any motor omnibus."
29
899
LOCAL GOVERNMENT.
900
The appellant, who had previous knowledge
of the order and notice, was an outside pas-
senger on a motor omnibus on this route,
having paid his fare entitling him to travel
over the section ; and on the omnibus arriv-
ing at the beginning of the section, although
requested by the conductor and an inspector
to descend, and his attention having been
again called to the notice, he refused to do so,
stating that he had got his ticket and intended
to ride on the top to the terminus. The
appellant remained on top of the omnibus for
some twenty minutes, during which time the
inspector declined to allow the omnibus to
proceed, and it was consequently delayed.
The appellant was convicted of a breach of
the by-law : — Held, that, as the corporation
had not held themselves out as common
carriers of passengers on the top of their
onmibuses, or contracted to carry the appel-
lant on the top of their omnibus over the
section, he was not entitled to be carried as
an outside passenger over the section ; that his
conduct amounted to wilful obstruction of the
corporation's servants within the meaning of
the by-law ; and that therefore he was rightly
convicted. Baker v. Ellison, 83 L. J. K.B.
1335; [1914] 2 K.B. 762; 111 L. T. 66;
78 J. P. 244; 12 L. G. E. 992; 24 Cox C.C.
208 ; 30 T. L. E. 426— D.
7. Small Holdings.
Compulsory Purchase of Land — Reservation
of Minerals — Risk of Subsidence — Assessment
of Compensation.] — Where a county council
acquire the surface of land compulsorily
under section 7 of the Small Holdings and
Allotments Act, 1908, and the subjacent
minerals are retained by the landowner, the
arbitrator in estimating the compensation to
be paid by the county council for the acquisi-
tion of the surface may properly leave out of
consideration the risk of subsidence, because
the Legislature affords a sufficient remedy by
sections 77 and 78 of the Eailways Clauses
Consolidation Act, 1845 (incorporated in the
Small Holdings and Allotments Act, 1908),
which enable the council to require that the
minerals be left unworked on payment of
further compensation. The arbitrator may
also leave out of consideration the question
whether the county council is or is not in a
position to avail itself of such remedy.
Carlisle (Earl) and Northumberland County
Council, In re, 105 L. T. 797; 75 J. P. 539;
10 L. G. E. 50— Channell, J.
Petition for Payment out — Wilful Refusal
to Convey.] — After an order for compulsory
purchase of land had been duly confirmed
under section 39, sub-section 3 of the Small
Holdings and Allotments Act, 1908, the
solicitor for the owner wrote that he was
advised by counsel that the order might be
bad, and subsequently he wrote again refusing
to convey, alleging the same advice : — Held,
that there had been a wilful refusal to convey
within the meaning of section 80 of the Lands
Clauses Consolidation Act, 1845. Jones and
Cardiganshire County Council, In re, 57 S. J.
374— Farwell, L.J.
Compensation to Tenant — Loss or Expense
Directly Attributable to Quitting Holding.] —
A county council being desirous of acquiring
a certain holding for the purposes of the
Small Holdings Act, by an agreement of
January 24, 1912, agreed to pay the tenant
5001., being the estimated amount of one
year's profits of the farm, and also " to pay
to the tenant such compensation for the loss
or expense directly attributable to the quit-
ting which the tenant may unavoidably incur
upon and in connexion with the sale or
removal of his household goods and his imple-
ments of husbandry, produce, and farm stock
on or used in connexion with the land as he
would have been entitled to under the Small
Holdings Act, 1910, if his tenancy of the
said farm had been terminated by a notice to
quit as in the said Act stated." The tenant
sold his farm stock by public auction and
sent in his claim for compensation in connec-
tion therewith. Certain items of the claim
were disputed by the council, and the matter
eventually went to arbitration. The items
more particularly in dispute were : (a) cost
of refreshments at the sale, 34Z. lis. 8d. —
this item referred to lunches and drink pro-
vided for those attending the sale ; (b) valua-
tion of farming stock and tenant right,
73Z. 2s. 6d. ; (c) loss on compulsory auction
sale as against valuation, 442Z. Os. 6d. ; (d) fee
for settling the agreement of January 24,
21. 2s. The umpire disallowed item (a), but
found as a fact that it was reasonable in
amount, and that it was customary and desir-
able at agricultural auction sales to provide
refreshments for buyers and persons attending
the sale. With respect to item (b) he stated
that to make a valuation of the tenant's
farming stock prior to sale was, in his opinion,
a reasonable and prudent expenditure and one
which a tenant was absolutely justified in
incurring under the circumstances of the case,
and he awarded to the tenant in respect of
such valuation the sum of 21L, which he con-
sidered was fair and ample. He did not
award any sum for valuation of tenant right,
as tenant right was not a subject with which
he had authority to deal. With respect to
item (c), the umpire allowed the sum of 1811.
He allowed item (d), and found as a fact
that it was not a charge for legal work, but
was a charge made by the valuer for time and
services in arranging and agreeing the basis
of the agreement, and that it was a reason-
able charge. On a Special Case stated on
the award, — Held, that item (a), being found
by the umpire to be reasonable and the pro-
vision of refreshments being customary and
desirable at such sales, should be allowed;
that item (6) for valuation of the stock should
not be allowed ; that as to item (c) the tenant
was entitled to compensation for any loss or
expense which he unavoidably incurred by
the sale ; and that item (d) could not be
allowed, as a fee for settling the agreement
was not an unavoidable expense incurred in
connection with the sale. Evans and
Glamorgan County Council, In re, 76 J. P.
468; 10 L. G. E. 805; 56 S. J. 668;
28 T. L. E. 517— Joyce, J.
901
LOCAL GOVEENMENT.
902
8. Offensive Trades.
See also Vol. IX. 437, 1984.
Order of Local Authority Declaring Certain
Trade to be Offensive Trade — Establishment
of Trade before Making of Order. I — In order
that a person may commit the offence under
section 112 of the Public Health Act. 1875, as
amended by section 51 of the Public Health
Acts Amendment Act, 1907, of establishing an
offensive trade within the district of an urban
authority without their consent in writing, or
of carrying on an offensive trade so estab-
lished, the trade (which must have been
established after the passing of the Act of
1875) must be one of the six offensive trades
specified in section 112 of the Act of 1875, or
be a trade which at the time it was established
had been declared by order of the urban
authority duly confirmed by the Local Govern-
ment Board to be an offensive trade. Butchers'
Hide, Skin, arul Wool Co. v. Seacome, 82 L. J.
K.B. 726 ; [1913] 2 K.B. 401 ; 108 L. T. 969 ;
77 J. P. 219 : 11 L. G. R. 572 ; 23 Cox C.C. 400 ;
29 T. L. R. 415— D.
The appellants established in December,
1911, without the consent in writing of the
urban authority, the trade of dealers in raw
hides and skins. Such trade was subsequently
declared by au order of the urban authority,
duly confirmed by the Local Government
Board, to be an offensive trade : — Held, that
the appellants had not committed the offence of
carrying on an offensive trade within the
meaning of section 112 of the Act of 1875,
as amended by section 51 of the Act of 1907,
as their trade had been established before it
was declared to be an offensive trade. Ih.
9. NUIS.ANCES.
Bungalows — Seaside Encampment — Alleged
Public Nuisance.] — About forty bungalows of
two or three rooms apiece constructed on
footings above the level of the ground had been
erected for occupation in the spring and
summer months on some eleven acres of low-
lying land between a sea-wall and the sea
without notice to the rural district council.
They were erected on separate sites or plots
let at weekly rents. There were also a con-
siderable number of tents on these sites. The
land lay below the level of high tides, and no
system of drainage was practicable. Sets of
closets at different parts of the land were
erected for men and women respectively, and
their contents were removed and emptied on
land at a distance from the residences. The
water supply was from stand-pipes. In an
action by the Attorney-General at the relation
of the rural district council for an injunction
to restrain the defendants from continuing an
alleged public nuisance, and from continuing
to maintain the bungalows in contravention of
by-laws and from erecting more, and by the
rural district council for specific performance
of an agreement to take down existing
bungalows, — Held, on the evidence, that the
plaintiffs had failed to establish that the
encampment was a nuisance to the public
health. Att.-Gen. v. Kerr, 79 J. P. 51;
12 L. G. R. 1277— Lush, J.
Abatement — Sufficiency of Notice to Abate.l
— A notice was served on the owner of certain
premises under section 94 of the Public Health
Act, 1875, requiring him to abate a nuisance
arising from his allowing water to rise and
accumulate in his cellar. The water came
from a spring in the cellar. The notice con-
tinued : '■ and for that purpose to drain off the
water, and to fill up the cellar, and to execute
all such other works, and do all such other
things as may be necessary for the abatement
of the said nuisance " : — Held, that the notice
was bad — by Ridley, J., on the ground that,
although it need not set out the work to be
done in detail, it ought to set out the character
of the work to be done — namely, pumping, and
not draining; by Avory, J., and Lush, J., on
the ground that it was ambiguous in that it
might mean either that the owner was to
effectively drain the water from the cellar or
only to pump out the water then in the cellar.
Whatli7ig v. Rees, 84 L. J. K.B. 1122;
112 L. T. 512; 79 J. P. 209; 13 L. G. R. 274
— D.
10. Food and Drink.
a. Sale of Unsound Meat.
See also Vol. IX. 443, 1984.
Local GoYernment — Unsound Meat — Sale
without Exposure for Sale — Jurisdiction to
Inflict Penalty — " Sold or exposed for sale."]
— On a prosecution under section 117 of the
Public Health Act, 1875, as amended by sec-
tion 28 of the Public Health Acts Amendment
Act, 1890, for selling diseased meat intended
for the food of man, it is necessary to prove
that the meat has been exposed for sale by the
defendant, and that the defendant was the
owner of the meat at the time of the exposure
for sale. The word " sold " in section 28 of
the Act of 1890 gives jurisdiction to deal with
the article of food and with the defendant on
the termination of the exposure for sale by
a sale — per Rowlatt, J. The appellants sold
a diseased live bullock to a butcher, knowing
that he intended to use it for human food, but
they had not exposed it for sale. It was
seized on the butcher's premises, and con-
demned by a Justice : — Held, that the
appellants could not be convicted because they
had not exposed the meat for sale. The article
sold, the bullock, was not the same thing as
the article seized and condemned, the meat;
therefore the conviction was bad on that ground
also — per Avory, J. Bothamley v. Jolly,
84 L. J. K.B. 2223; [1915] 3 K.B. 425;
31 T. L. R. 626— D.
Seizure on other than Seller's Premises after
Sale — Condemnation — Jurisdiction to Inflict
Penalty — "So seized."! — In order to give
jurisdiction, under sections 116 and 117 of the
Public Health Act, 1875, and section 28 of
the amending Act of 1890, to inflict a penalty
for selling, exposing for sale, depositing for
the purpose of sale or of preparation for sale
meat intended for the food of man and unfit
for the food of man, it is not necessary that it
should have been seized at the time when so
sold or exposed. Salt v. Tomlinson, 80 L. J.
903
LOCAL GOVERNMENT.
904
K.B. 897; [1911] 2 K.B. 391; 105 L. T. 31;
75 J. P. 398 ; 9 L. G. E. 822 ; 22 Cox C.C. 479 ;
27 T. L. E. 427— D.
Meat was seized on the premises of the
medical officer of health for the district, who
had received it from a person who had pur-
chased it from the appellant on the previous
day, and it was subsequently condemned by
a Justice, it being found as a fact that it was
unfit for the food of man at the time of the
sale : — Held, that the appellant was rightly
convicted of selling the meat when so unfit. lb.
Possession of Diseased Meat — Proceedings
by Police Officer — Consent of Attorney-
General.] — A police officer is precluded by the
provisions of section 253 of the Public Health
Act, 1875, from taking proceedings, without
the consent of the Attorney-General, under i
section 117, against a person for unlawfully
having in his possession meat, for the purpose
of preparation for sale and intended for the
food of man, which is diseased. Dodd v.
Pearsoji, 80 L. J. K.B. 927; [1911] 2 E.B.
383; 105 L. T. 108; 75 J. P. 343; 9 L. G. E.
646; 2-2 Cox C.C. 526; 27 T. L. E. 376— D.
Evidence of Possession at the Time of
Seizure of Unsound Meat intended to be Sold
for Food." — Meat supplied for the use of a
regiment was delivered at their barracks and
rejected as unsound. It was subsequently
found by the inspector of nuisances in a
waggon on the premises of a slaughterer, and
was condemned by a Justice. The appellant
had after the seizure admitted his ownership
of the meat to the inspector, and had said to
him that it was perfectly fit for food. The
appellant had also requested the medical officer
of health to keep the meat for further examina-
tion on his behalf, and had told that officer
that if it had not been seized he was prepared
to sell it : — Held, that there was sufficient
evidence to justify the Justices in finding that
the meat was in the possession of the appellant
when it was seized, and in convicting him
under section 117 of the Public Health Act,
1875. Bull V. Lord, 9 L. G. E. 829— D.
Seizure of Meat Erroneously Alleged to be
Unsound — Claim for Compensation.] — A
veterinary surgeon, approved by the local
authority under the Public Health (Scotland)
Act, 1897, seized and carried away meat which
appeared to him to be diseased, but which
eventually did not prove to have been diseased.
The owners of the meat claimed compensation
from the local authority for the value of the
meat, and presented an application to the
Local Government Board, more than six
months after the seizure of the meat, for the
appointment of an arbiter to ascertain the
compensation due. The local authority there-
upon brought an action to interdict the applica-
tion from proceeding : — Held, first, that the
local authority were not relieved from liability
by virtue of section 166 of the Public Health
(Scotland) Act, the claim not being a claim of
damages for an " irregularity " in the sense of
that section, but a claim for compensation under
section 164; secondly, that the proceedings
were timeously taken, in respect that this was
not the case of an " action or prosecution "
for a " wrong " in the sense of section 166
of the Act which had to be brought within
two months, nor of an " action, prosecution,
or other proceeding " in the sense of section 1
of the Public Authorities Protection Act which
had to be brought within six months. Glasgow
Corporation v. Smithfield and Argentine Meat
Co., [1912] S. C. 364— Ct. of Sess.
Action against Medical Officer and Sanitary
Inspector — Non-communication of Condition of
Food.] — See Weir v. Thomas, post, col. 1073.
b. Adulteration of Food.
i. Offences Generally.
See also Vol. IX. 446, 1987.
Refusing to Sell to Inspector for Analysis —
Milk Kept in Counter Pan — Milk only Sold
Mixed with Something Else — "Exposed to
sale, or on sale by retail."] — The respondent,
who kept an eating house, had on the counter
in his shop a pan labelled " Pure milk." The
appellant, who was an inspector under the
Sale of Food and Drugs Acts, asked to be
supplied with a glass of milk from the counter
pan for the purpose of analysis. The respon-
dent's servant refused to serve him, as he did
not sell milk alone, the milk being on the
premises only for the purpose of being added
to cups of tea, coffee, cocoa, or glasses of soda
water : — Held, that the milk was " exposed to
sale, or on sale by retail " within the meaning
of section 17 of the Sale of Food and Drugs
Act, 1875, notwithstanding that it was only
sold mixed with something else, and that
therefore the respondent was guilty of the
offence under section 17 of the Act of 1875 of
refusing to sell to an inspector an article of
food " exposed to sale or on sale by retail " in
his shop. McNair v. Terroni, 84 L. J. K.B.
357 ; [1915] 1 K.B. 526 ; 112 L. T. 503 ; 79 J. P.
219 ; 13 L. G. E. 377 ; 31 T. L. E. 82— D.
Notification of Intention to Submit Article
to Analysis — Notification to " seller or his
agent selling the article " — Notification to
Agent other than Agent Selling the Article.]
— Section 14 of the Sale of Food and Drugs
Act, 1875, which requires that a person
purchasing an article with the intention of
submitting it to analysis shall, after the pur-
chase is completed, forthwith " notify to the
seller or his agent selling the article " his
intention to have the same analysed by the
public analyst, may be sufficiently complied
with by a notification to an agent of the seller
other than the agent who actually sold the
article : — So held by Lord Alverstone, C.J.,
and Avorv, J. ; Pickford, J., dissenting. Davies
v. Burreil, 81 L. J. K.B. 736; [1912] 2 K.B.
243 ; 107 L. T. 91 ; 76 J. P. 285 ; 10 L. G. E.
645 ; 23 Cox C.C. 81 ; 28 T. L. E. 389— D.
Milk not of the Nature, Substance, and
Quality Contracted to be Sold — Milk not
Tampered with.] — The respondent was charged
on an information with having consigned to a
purchaser milk which was not of the nature,
substance, and quality contracted to be sold,
the milk being deficient in fat to the extent
of 26 per cent, of the minimum amount fixed
905
LOCAL GOVERNMENT.
906
by the Sale of Milk Eegulations, 1901. At the
hearing the facts stated in the information
■were proved or admitted, and evidence was
also given and admitted that another consign-
ment of the same morning's milk from the
same cows shewed on analysis 3.1 per cent,
fat (being in excess of the said minimum), and
that the morning's milk from the same cows
seven days later shewed on analysis a deficiency
in fat below such minimum of 3 per cent,
only. The Justices, on this evidence, were of
opinion that, although the sample, the subject
of the summons, was not of the nature, sub-
stance, and quality contracted to be sold, yet
the respondent had not tampered with the milk
and that the milk was as it came from the
cows. They accordingly dismissed the informa-
tion : — Held, that the Case must be remitted
to the Justices to convict the respondent unless
further evidence was given before them bearing
upon the question whether or not the difference
between the quantities of fat in the two
consignments on the day in question was
consistent with there having been ordinary
milking. Marshall v. Skett, 108 L. T. 1001;
77 J. P. 173; 11 L. G. R. 259; 23 Cox C.C.
435; 29 T. L. E. 152— D.
Deficiency of Fat in Milk Due to Method of
Feeding.^ — J. was charged with selling " sweet
milk which was not of the nature, substance,
and quality of sweet milk, the article demanded
by the purchaser, in respect that " it did not
contain the percentage of milk fat and solids
required by the Eegulations, " contrary to the
Sale of Food and Drugs Act, 1875, s. 6, and
to the Sale of Milk Eegulations, 1901." It
was proved that the milk did not contain the
percentage of milk fat and solids required by
the Eegulations ; that it had not been tampered
with or adulterated, but had been sold in the
same condition as yielded by the cows ; and
that the deficiency of milk fat and solids was
due to the method of feeding, which had been
purposely adopted to produce quantity of milk
irrespective of quality : — Held, that the milk
was " genuine," and that the accused was not
guilty of the offence charged. Srnithies v.
Bridge (71 L. J. K.B. 555; [1902] 2 K.B. 13)
commented on. Scott v. Jack, [1912] S. C. (J.)
87— Ct. of Just.
Milk Deficient in Fat — Proof of Genuineness
—Onus.]— The Sale of Milk Eegulations, 1901,
provide that where a sample of milk contains
less than 3 per cent, of milk fat it shall be
presumed, " until the contrary is proved, that
the milk is not genuine, by reason of the
abstraction therefrom of milk fat, or the addi-
tion thereto of water '" : — Held, that the onus
of proof so imposed upon a seller of milk was
sufficiently discharged by the evid(>nce of the
accused himself and his mother and servants
(which was not disbelieved) that the milk had
not been tampered with, and that it was not
necessary for him to have the corroboration
of a neutral witness or witnesses. Lamont v.
Rodger, [1911] S. C. (J.) 24— Ct. of Just.
Deficiency in Milk Solids — 12 per cent, of
Added Water — Contents of Churn not Stirred
Prior to Purchase — Ofifence of Trivial Nature. 1
— The respondent was charged with selling
milk not of the nature, substance, and quality
demanded by the appellant. The milk pur-
chased was analysed, and the analyst stated
in his certificate that in his opinion the sample
contained 12 per cent, of added water. The
churn from which the milk was taken was not
stirred prior to the quantity purchased by the
appellant being taken therefrom. No evi-
dence was given, or called, by the respondent,
nor did he require the public analyst to be
called. The Justices stated that they were
of opinion from their own knowledge that the
sample taken by the appellant did not fairly
represent the whole contents of the churn,
and that the slight deficiency in the standard
prescribed by the Sale of Milk Eegulations,
1901, might be due to causes other than ab-
straction of solids or the addition of water,
and they did not feel justified in convicting
the respondent on so small a percentage of
water in excess of the Eegulations, having
regard to the fact that the milk supplied was
of good quality ; they were further of opinion
that, in any event, the offence was of so trivial
a nature that they were justified in dismissing
the information : — Held, that in view of the
findings of the Justices the Court could not
say that they were not entitled to come to the
conclusion at which they arrived. Preston v.
Redfern, 107 L. T. 410; 76 J. P. 359;
10 L. G. E. 717 ; 23 Cox C.C. 166 ; 28 T. L. E.
435— D.
Sample Taken " in course of delivery."] —
The respondent, a milkman, drew milk from
a can and delivered it to a customer who came
out of her house with a jug to get it. He
was under contract to deliver to the customer
pure milk from one cow. As soon as the
customer received the milk she went back with
it into her house and shut the door. The
appellant, an inspector under the Sale of Food
and Drugs Acts, then went to the respondent
and bought some milk from the same can,
being told by the respondent that the milk
was diluted. The appellant then knocked at
the door of the customer's house, and the
door was opened by the customer, who still
had the jug in her hand, and said that the
milk in the jug was exactly as she received
it. The appellant took a sample from the
milk in the jug and sent it, with the sample
bought from the respondent, for analysis.
The result of the analysis was the same as
to each sample, both being adulterated with
30 per cent, of water. In a prosecution
for selling to the customer milk which had
been adulterated the Justices held that the
sample taken from the milk supplied to her
had not been taken by the appellant while
the milk was " in course of deli%^ery " to the
customer within section 3 of the Sale of Food
and Drugs Act Amendment Act, 1879, and
they accordingly dismissed the charge : —
Held (Lord AlveVstone, C.J., dissenting), that
there was evidence upon which the Justices
could find that there was a complete delivery
of the milk before the sample was taken
by the appellant. HelUwell v. Haskins,
105 L. T. 438 ; 9 L. G. E. 1060 ; 75 J. P. 435 ;
27 T. L. E. 463; 22 Cox C.C. (503- D.
A consignment of forty-two gallons of milk
in six barrels, five of which contained eight
907
LOCAL GOVERNMENT.
908
gallons each and the remaining one two
gallons, was delivered at a milk shop. It was
there sampled by the sanitary inspector, the
method adopted being as follows : Four of
the five eight-gallon barrels were poured
separately into a ten-gallon dish, and a sample
of each taken, and the last of the five eight-
gallon barrels and the sixth barrel of two
gallons were poured together into the dish,
and a sample taken. Each of the five samples
was separately analysed, and the average of
these analyses was taken as representing the
quality of the whole consignment : — Held,
that this was a fair method of sampling.
Lamont v. Rodger, [1911] S. C. (J.) 24—
Ct. of Just.
Per Lord Ardwall. — It would have been
preferable to have mixed all the samples
together before the analysis. lb.
Skimmed Milk.l— The Sale of Food and
Drugs Act, 1899, s. 4, sub-s. 1, empowers
the Board of Agriculture to make regulations
determining what deficiency in the con-
stituents of " genuine milk, cream, butter, or
cheese,"' or what addition of extraneous
matter "' in any sample of milk (including
condensed milk), cream, butter, or cheese,"
shall raise a presumption that the same is
not genuine : — Held, that " milk " included
skimmed milk, and that " genuine " meant
merely "unadulterated"; and accordingly
that the Board of Agriculture had power
under the section to make regulations as to
skimmed milk. Gordon v. Love, [1911]
S. C. (J.) 75— Ct. of Just.
Cream — Sale of Mixture as Article of Com-
merce— Notice to Purchaser by Label.] —
Section 6 of the Sale of Food and Drugs Act,
1875, provides that any person selling an
article of food not of the nature, substance,
and quality of the article demanded by the
purchaser, shall be liable to a penalty, except
in the case of any matter or ingredient not
injurious to health being added to the food
because the same is required for the produc-
tion or preparation thereof as an article of
commerce, in a state fit for carriage or con-
sumption, and not fraudulently to increase the
bulk, weight, or measure of the food, or
conceal the inferior quality thereof. Section 8
of the Act provides that, in respect of the sale
of an article of food mixed with any matter
or ingredient referred to in section 6, no
person shall be guilty of an offence under
that section if at the time of delivering the
article he shall supply to the person receiving
the same a notice, by a label distinctly and
legibly written or })rinted on or with the
article, to the effect that the same is mixed.
A purchaser asked for cream and was sup-
plied with a mixture of cream and boric acid,
which mixture was poured from a can into
an earthenware pot. Attached to this pot
was a label on which were legibly printed
these words : " Preserved cream containing
boric acid not exceeding 0.5 per cent." After
filling the pot the vendor placed it in a plain
paper bag for the convenience of the pur-
chaser so quickly that the purchaser had no
opportunity of seeing the label, but there was
no intention on the part of the vendor of
concealing the label from him : — Held, that
the vendor had not supplied to the person
receiving the pot the notice required by sec-
tion 8 of the Act, inasmuch as he had omitted
to bring to his mind the fact that there was
a label thereon. Batchelour v. Gee, 83 L. J.
K.B. 1714; [1914] 3 K.B. 242; 111 L. T. 256;
78 J. P. 362; 12 L. G. E. 931; 24 Cox C.C
268; 30 T. L. K. 506— D.
Pearks, Gunston £ Tee v. Houghton
(71 L. J. K.B. 385 ; [1902] 1 K.B. 889) fol-
lowed. Jones V. Jones (68 J. P. 653) dissented
from. Ih.
Added Matter or Ingredient — Boron Pre-
servative— "Injurious to health" — Notice to
Purchaser.] — The appellant, a dairyman, sold
to a purchaser cream mixed with a preserva-
tive. Nothing was said by the appellant at
the time of the sale, but opposite to the
entrance of his shop a notice was exhibited
stating that all cream sold at the establish-
ment contained a small portion of boron pre-
servative to keep the cream " sweet and
wholesome." The purchaser read the notice
before he was supplied with the cream. Upon
an information under section 6 of the Sale of
Food and Drugs Act, 1875, charging the appel-
lant with having sold " to the prejudice of
the purchaser " an article of food which was
not of the nature, substance, and quality of
the article demanded by him, the Justices
found that the article sold was injurious to
health, and convicted the appellant : — Held,
that there was no evidence that the sale was
a sale " to the prejudice of the purchaser "
within the meaning of section 6, inasmuch
as he was informed by the notice that the
cream was mixed. Held, further, that for
the purposes of section 6 the fact that the
article was found to be injurious to health
was immaterial. Williams v. Friend,
81 L. J. K.B. 756; [1912] 2 K.B. 471;
107 L. T. 93 : 76 J. P. 301 ; 10 L. G. E. 494 ;
23 Cox C.C. 86; 28 T. L. E. 407— D.
Mixture of Butter and Margarine — Evidence
— Maximum Legal Proportion of Butter —
Proportion Relative thereto in Mixture —
"Quality."] — By section 8 of the Sale of
Food and Drugs Act, 1899, it is unlawful to
sell margarine containing more than 10 per
cent, of butter fat. Hence where the defen-
dant sold, as a mixture, a mixture of butter
and margarine which contained 4i per cent,
of butter fat, — Held, that there was no evi-
dence to justify a finding that it was merely
colourable, as the proportion to be considered
was that of the butter in the mixture to the
legal maximum of butter fat it could contain,
and not its proportion to the total quantity of
the mixture. " Quality," in section 6 of the
Sale of Food and Drugs Act, 1875, means
commercial quality. Anness v. Grivell,
85 L. J. K.B. 121; [1915] 3 K.B. 685;
79 J. P. 558: 13 L. G. E. 1215— D.
Admixture of Coffee and Chicory — Notice to
Purchaser by Label — " Supply ... a
notice. "1 — The appellant bought a<- the respon-
dent's shop some half-dozen articles, includ-
ing half a pound of coffee. These, in
accordance with trade custom and for the
909
LOCAL GOVERNMENT.
910
purchaser's convenience, the respondent
wrapped up together in a parcel, and handed
to the appellant. When the latter opened the
parcel he immediately saw a label on the
coffee bearing a notice, " This is sold as a
mixture of coffee and chicory." He had had
no opportunity of seeing this label before : —
Held (Avory, J., dissentiente), that the re-
spondent had complied with section 8 of the
Sale of Food and Drugs Act, 1875, which
enacts that where the article of food or drug
is mixed the seller " shall supply to the
person receiving the same a notice, by a
label," and that he had not sold to the pre-
judice of the purchaser an article of food
not of the nature, substance, and quality
demanded within the meaning of section 6 of
the Act. Jones v. Jones (58 J. P. 653) fol-
lowed. BatchelouT v. Gee (83 L. J. K.B.
1714; [1914] 3 K.B. 242) not followed.
Clifford V. Battley, 84 L. J. K.B. 615; [1915]
1 K.B. 531; 112 L. T. 765; 79 J. P. 180;
13 L. G. R. 505 ; 31 T. L. E. 117— D.
Sardines in Oil.] — The respondent requested
the appellant to supply him with nine tins of
sardines in olive oil. The tins sold to him
by the appellant, in fact, contained sardines
in cotton-seed oil, an oil which is not injurious
to health : — Held, that there had been a sale
by the appellant "' to the prejudice of the
purchaser " within the meaning of section 6
of the Sale of Food and Drugs Act, 1875.
Winterbottom v. Allwood, 84 L. J. K.B.
1225; [1915] 2 K.B. 608; 112 L. T. 590;
79 J. P. 161; 13 L. G. R. 551; 31 T. L. E.
68— D.
Sugar — Demerara Sugar — Coloured
Mauritius Sugar — Place of Origin.] — The
respondent was summoned, under section 6
of the Sale of Food and Drugs Act, 1875, for
selling as " Demerara sugar " crystallised
cane sugar grown in Mauritius and coloured
with an organic dye. Evidence was given
that the sugar was equal to the best West
Indian cane sugar and that the public expect
under the designation " Demerara sugar " a
yellow crystallised cane sugar without refer-
ence to its origin. The magistrate found that
" Demerara sugar " had become a generic
term referring to a process and not to a place,
and he dismissed the summons : — Held, that
although the sugar was not grown in
Demerara, yet as it was " Demerara sugar "
in every other respect, the magistrate's
decision must be affirmed. Anderson v.
Britcher, 110 L. T. 335; 78 J. P. 65;
12 L. G. E. 10; 24 Cox C.C. 60: 30 T. L. E.
78— D.
Lardine — Percentage of Water.] — The
respondents were sunnnoned for having sold
to the prejudice of the appellant ;i certain
article of food, to wit lardine, which was
not of the nature, substance, and quality
demanded by the appellant. It was proved
that the appellant having asked for one pound
of lardine was supplied with one pound of a
substance which contained the following per-
centages of ingredient.s : Fat,&c.,25 percent.,
■water 25 per cent. ; that lardine is a substitute
for, and is sold at a lower price than, lard
(which contains no water), but that there is
no statutory standard for lardine ; that during
the three months ending June 30, 1910,
twenty-six samples of lard substitutes were
analysed by the county analyst, of which
twenty-two samples contained no water and
that four samples did contain water ; that
during the three months ending September 30,
1910, eight samples or lard substitutes were
analysed, six of them containing no water
and two containing water. The Justices
were of opinion that, there being no statu-
tory standard for lardine, and the only
evidence before them of any commercial
standard being the composition of the samples
analysed by the county analyst, they were
not justified in holding that lardine must
contain no water; nor, in the absence of
evidence as to the percentage of water in such
samples, did they consider the evidence suffi-
cient to enable them to fix a percentage of
water permissible, and to say that what was
sold by the respondent was not lardine. The
Justices accordingly dismissed the summons :
— Held (Bray, J., dissenting), that the
Justices ought to consider whether there was
adulteration or not, and that the case must go
back to them for this purpose. Rudd v.
Skelton Co-operative Society, 104 L. T. 919 ;
75 J. P. 326; 22 Cox C.C. 469- D.
ii. Analysis.
See also Vol. IX. 453. 1995.
Notification of Intention to Submit Article
to Analysis — Notification to " seller or his
agent selling the article" — Notification to
Agent other than Agent Selling the Article.]
— Section 14 of the Sale of Food and Drugs
Act, 1875, which requires that a person pur-
chasing an article with the intention of
submitting it to analysis shall, after the pur-
chase is completed, forthwith " notify to the
seller or his agent selling the article " his
intention to have the same analysed by the
public analyst, may be sufficiently complied
with by a notification to an agent of the
seller other than the agent who actually sold
the article : — So held by Lord Alverstone,
C.J., and Avory, J.; Pickford, J., dissenting.
Davies v. Burrell, 81 L. J. K.B. 736; [1912]
2 K.B. 243; 107 L. T. 91; 76 J. P. 285;
10 L. G. R. 645; 28 T. L. E. 389— D.
Sample — Purchase for Analysis — Deteriora-
tion of Sample — Mode of Sealing up — Impossi-
bility of Analysis — Condition Precedent to
Prosecution.' — The sale of sardines in olive
oil is not a sale of two separate articles —
namely, sardines and oil — but of one article,
and it is not necessary, under section 14 of
the Sale of Food and Drugs Act, 1K75. for the
respondent to give the appellant a separate
sample of each. Winterbottom v. .Allwood,
84 L. J. K.B. 1225; [1915] 2 K.B. 608;
112 L. T. 590; 79 J. P. 161 ; 13 L. G. R. 551 ;
31 T. L. R. 68— D.
It is not a condition precedent to proceed-
ings under section 14 that each part of the
article shall be " sealed or fastened up " in
such a manner as to be capable of effective
911
LOCAL GOVERNMENT.
912
analysis at the date of the service of the
summons ; but the purchaser is bound to take
reasonable care in regard to the sealing up. lb.
Certificate.] — An analyst's certificate in
respect of certain skimmed milk was as
follows : Solids not fat, 7.35; fat, 1.31; water,
91.34. Total, 100.00. Ash, .59 : — Held,
that the certificate was not open to the objec-
tion that it was unintelligible because the
" solids " were not described as " milk
solids," or because the amount of the ash was
added. Gordon v. Love, [1911] S. C. (J.) 75—
Ct. of Just.
Serving of Certificate with Summons.] —
See Grimble d- Co. v. Preston, post, col. 913,
and Haynes v. Davis, post, col. 914.
iii. Persons Liable.
See also Vol. IX. 457, 2001.
Sale by "Person" — Limited Company.] —
A 1 united company are liable to be convicted,
under section 20, sub-section 6 of the Sale of
Food and Drugs Act, 1899, for giving to a
purchaser a false warranty in writing in
respect of an article of food or drug sold by
the company as principal or agent. Chuter v.
Freeth d- Pocock, 80 L. K.B. 1822; [1911]
2 K.B 832; 105 L. T. 238; 75 J. P. 430;
9 L. G. E. 1055 ; 27 T. L. E. 467 ; 22 Cox C.C.
673— D.
" Carrying on trade of purveyor of milk " —
Small Quantity of Milk Sold at Refresliment
Buffet — Necessity for Registration.] — The
appellants were the occupiers of a refreshment
buffet at a railway station in London, and
among other articles sold there by them was
milk, which they obtained from a firm of
F. & Sons, who undertook to supply it
guaranteed pure and to convey it to the appel-
lants as they might require. The sale of milk
by the appellants at the buffet in question was
extremely small, amounting to about three or
four glasses per week, the takings for milk
being about id. out of 50/. per week. In no
circumstances was milk sold for consumption
off the premises, but it was never refused
when asked for for consumption on the
premises : — Held, that the appellants did not
at the buffet in question " carry on the trade
of purveyors of milk " within the meaning of
the Dairies, Cowsheds, and Milkshops Order.
1885, and therefore that it was not necessary
for them to be registered as purveyors of milk
in respect of that buffet. Spiers <{■ Pond, Lim.
V. Green, 82 L. J. K.B. 26; [1912] 3 K.B.
576; 77 J. P. 11; 10 L. G. E. 1050;
29 T. L. E. 14— D.
Sale by Shop Assistant — Company Carrying
on Business — Liability of Director and
Principal Shareholder.! — Butter containing
margarine was sold to the respondent's repre-
sentative by an assistant at a shop of which
a limited company were the proprietors. The
appellant, a director of the company, was
practically the only shareholder. He was also
the secretary and general manager of the
company's business, but was not on the pre-
mises at the time of the sale. Upon an infor-
mation charging the appellant with an offence
under section 6 of the Sale of Food and Drugs
Act, 1875, the Justices found that the assistant
was a person employed by the appellant as a
salesman, and convicted the appellant of the
offence charged : — Held, that the assistant was
employed, not by the appellant, but by the
company, which was a separate entity, and
that the appellant was therefore improperly
convicted. Booth, v. Helliwell, 83 L. J.
K.B. 1548 ; [1914] 3 K.B. 252 ; 111 L. T. 542 ;
78 J.P. 223; 12 L. G. E. 940; 24 Cox C.C.
361; 30 T. L. E. 529— D.
Unauthorised Sale by Servant.] — In the
prosecution of a dairyman for selling, by the
hand of his servant, milk which was not
genuine, it was proved that the servant who
sold the milk had no authority to do so, his
duty being merely to deliver milk to his
master's customers — Held, that as the servant
had exceeded his authority in selling the milk,
there had been no sale by the accused, and
that he must therefore be acquitted. Lindsay
v. Demp.ster, [1912] S. C. (J.) 110— Ct. of
Just.
iv. Prosecution.
See also Vol. IX. 458, 2002.
Jurisdiction of Justices — Place of Delivery
— County — Petty Sessional Division.] —
The provision in section 20 of the Sale of Food
and Drugs Act, 1875, that proceedings may
be taken for an offence against the Act " before
any Justices in petty sessions assembled
having jurisdiction in the place where the
article or drug sold was actually delivered to
the purchaser," authorises the taking of pro-
ceedings in any part of the county in which
delivery took place, and does not require that
they should be taken in the particular petty
sessional division in which delivery took place.
Rex V. Beacontree Justices; Rex v. Wright,
84 L. J. K.B. 2230; [1915] 3 K.B. 388;
113 L. T. 727 ; 79 J. P. 461 ; 13 L. G. E. 1094 ;
31 T. L. E. 509— D.
Article Intended to be Used for Adultera-
tion of Butter — Sample Taken by Officer for
Analysis — Necessity for Division into Parts —
Limit of Time for Instituting Proceedings.]
— Where an officer acting under the powers
conferred by section 2, sub-section 1 of the
Butter and Margarine Act, 1907, enters regis-
tered premises and takes a sample for analysis
of any article capable of being used for the
adulteration of butter, margarine, margarine
cheese, or milk-blended butter, it is not a
condition precedent to the institution of a
prosecution of the occupier of the premises
under section 3 of the Act that the officer
should have notified the occujiier of his inten-
tion to have the sample analysed by the public
analyst, or shall have divided it into parts or
otherwise have complied with the provisions
of section 14 of the Sale of Food and Drugs
913
LOCAL GOVERNMENT.
914
Act, 1875; and section 19, sub-section 1 of the
Sale of Food and Drugs Act, 1899, which
prescribes a time limit for a prosecution, does
not apply to such prosecution. Principle laid
down in Rouch v. Hall (50 L. J. M.C. 6;
6 Q.B. D. 17) applied. Monro v. Central
Creamery Co., 81 L. J. K.B. 547; [1912]
1 K.B. 578; 106 L. T. 114; 76 J. P. 131;
10 L. G. E. 134 ; 22 Cox C.C. 682— D.
Information by Inspector — Proof of Appoint-
ment.'!— The iippelhint preferred an informa-
tion against the respondent under section 6
of the Sale of Food and Drugs Act, 1875, for
selling whisky which was not of the nature,
substance, and quality demanded by the appel-
lant. On tlie hearing before the Justices the
appellant stated that he was an inspector
under the Sale of Food and Drugs Act. He
was not cross-examined as to his appointment,
nor asked to produce it. The respondent's
solicitor thereupon contended that it was
necessary for the appellant to produce his
appointment as inspector, and that, as he had
not done so, the case should be dismissed. The
Justices were of opinion that it was necessary
that the appellant should have formally proved
his appointment, and dismissed the informa-
tion, refusing an application for an adjourn-
ment : — Held, that, assiiming that it was
necessary for the appellant to prove his
appointment as inspector, there was sufficient
prima facie evidence before the Justices that
he was an inspector, and that they were wrong
in dismissing the information. Ross v. Helm,
82 L. J. K.B. 1322: [1913] 3 K.B. 462;
107 L. T. 829: 77 J. P. 13; 11 L. G. R. 36;
23 Cox C.C. 248— D.
Semble (per Channell, J., and Avory, J.),
that upon an information under section 6 of
the Act of 1875 it is unnecessary for the infor-
mant to prove that he is an inspector. lb.
False Warranty — Where Given — Vinegar
— Jurisdiction.! — Where a false warranty in
respect of food or drugs is sent by post to a
purchaser or sent to him with the goods pur-
chased, the Justices of the place where the
warranty is received have jurisdiction to deal
with the offence. Grimble d Co. v. Preston,
83 L. J. K.B. 347; [1914] 1 K.B. 270;
110 L. T. 115; 78 J. P. 72; 12 T_i. G. E. 382;
24 Cox C.C. 1 ; 30 T. L. R. 119— D.
Analyst's Certificate not Served with
Summons — Waiver.] — An objection to the
jurisdiction of Justices, on the ground that
section 19, sub-section 2 of the Sale of Food
and Drugs Act, 1899 — which provides that in
any prosecution under the Sale of Food and
Drugs Acts there must be served with the
summons a copy of any analyst's certificate
obtained on behalf of the prosecutor — has not
been complied with, is waived by the defen-
dant's advocate cross-examining the witnesses
for the prosecution ; and he cannot take the
objection when he is called upon to open his
defence. 7b.
The appellants, brewers in Ijondon. on
receipt of an order from a grocer at Nuneaton.
Warwickshire, sent him by carrier some
vinega.- labelled " Guaranteed pure malt
vinegar, free from added acid, wiirranted
unadulterated," and also at the same time an
invoice by post containing these words : " All
our vinegar warranted unadulterated." A
summons to appear before the Justices at
Nuneaton on a charge of having given a false
warranty to the grocer in respect of the vinegar
was served on the appellants, but no copy of
the analyst's certificate obtained on behalf of
the prosecutor was served therewith. On the
hearing of the summons the appellants'
solicitor cross-examined the witnesses for the
prosecution, and at the end of the case for
the prosecution objected to the jurisdiction
of the Justices, on the grounds that, first, the
warranty was not given at Nuneaton, but in
London ; and "secondly, that no copy of the
analyst's certificate had been served with the
summons. The Justices overruled the objec-
tions : — Held, on a Case stated by the Justices,
that their decision was right. 7b.
Semble, that the omission to serve a copy
of the analyst's certificate together with the
summons could not have been cured, either by
amendment or adjournment, if a preliminary
objection had been taken thereto. 7b.
Dismissal of Summons — Issue of Second
Summons — Autrefois Acquit.] — The appellant
was summoned for an offence under the Sale
of Food and Drugs Act, 1875. At the hearing
of the summons it appeared that the analyst's
certificate had not been served on the appellant
with the summons, as required by section 19,
sub-section 2 of the Sale of Food and Drugs
Act, 1899, and the magistrate thereupon dis-
missed the case. Subsequently a fresh sum-
mons was issued in respect of the same offence
and based on the same facts, and on this
occasion was served on the appellant with the
certificate. At the liearing of this second
summons the appellant contended that the
matter was res judicata, and that the proceed-
ings were therefore bad. The magistrate con-
sidered that the appellant had not been in
peril on the first occasion, and that, conse-
quently, he could not raise a good plea of
autrefois acquit, and pi-oceeded to convict. The
appellant appealed : — Held, on the authority
of Grimble <{■ Co. v. Preston (83 L. J. K.B.
347; [1914] 1 K.B. 270), that the service
of the certificate with the summons was
not a condition precedent to the jurisdiction
of a magistrate to try a summons under the
Sale of Food and Drugs Acts. The appellant,
therefore, had been in peril at the hearing
of the first summons and could not be put on
his trial again for the same offence, and under
the circumstances the magistrate was wrong
in convicting him. Haynes v. Davis, 84 L. J.
K.B. 441 ; [1915] 1 K.B. 332 : 112 L. T. 417 ;
79 J. P. 187 ; 13 L. G. R. 497— D.
Per Eidley, J. : A man who has been in
peril and acquitted is entitled to protection
from any further proceedings with reference to
the same offence, whether the acquittal is by
the verdict of the jury on the merits, or on
some point of law. Rex v. Galtcay (Justices)
([1906] 2 Ir. R. 499) principle applied. 7b.
Per Lush, J. (dissenting) : The service of
Hie certificate with the summons was a con-
dition precedent to the magistrate having
jurisdiction. The appellant was therefore
never in peril on the first occasion. An
915
LOCAL GOVERNMENT.
916
acquittal of a charge on a purely technical
ground which operates as a bar to the adjudi-
cation does not entitle a defendant to raise a
successful plea of autrefois acquit. lb.
V. Defences to Prosecution.
See also Vol. IX. 460. 2005.
Written Warranty — Sufficiency.] — In pro-
ceedings under the Sale of Food and Drugs
Acts by an inspector against a retail milk
dealer for selling milk not of the nature, sub-
stance, and quality demanded, on the ground
that a certain percentage of water had been
added to the milk, the dealer relied upon the
warranty of his vendors, a limited company,
as a defence, and claimed, under section 25 of
the Sale of Food and Drugs Act, 1875, to be
discharged from the prosecution. The war-
ranty relied upon consisted of the following
agreement by the company : " The said S. S.
and G. Dairies Limited purchase all milk sold
by them under a warranty of its purity from
the farmers, and agree to put the same on rail
thoroughly well cooled over a refrigerator, and
guarantee it as such up to the time of delivery
at the above address " : — Held, that this was
a warranty of the purity of the milk as
delivered at the dealer's address, upon which
he was entitled to rely under section 25, and
not merely a guarantee that the milk should
arrive "thoroughlv well cooled over a refrigera-
tor." Jackling v. Carter, 107 L. T. 24;
76 J. P. 292: 10 L. G. R. 632: 23 Cox C.C. 54
— D.
Notice of Defence — " Sent to the purchaser "
— "Within seven days after service of
summons " — Notice Put into Post within Seven
Days — Notice Reaching Purchaser after
Expiration of Seven Days.] — Section 20 of
the Sale of Food and Drugs Act, 1899, pro-
vides that ■' A warranty or invoice shall not
be available as a defence to any proceeding
under the Sale of Food and Drugs Acts unless
the defendant has. within seven days after
service of the summons, sent to the purchaser
a copy of such warranty or invoice, with a
written notice stating that he intends to rely
on the warranty or invoice " : — Held, that the
word " sent '" simply meant despatched, and
that the section was complied with if the
defendant put the documents into the post
within seven days, even although they were
not received bj' the party to whom they were
sent until after the expiration of the seven
days. Retail Dairy Co. v. Clarke, 81 L. J.
K.B. 845: [1912] 2 K.B. 388; 106 L. T. 848;
76 J. P. 282 : 10 L. G. R. 547 : 23 Cox C.C. 6 :
28 T. L. R. 361— D.
Notice Sent by Defendant to Person Giving
Warranty of Intention to Rely upon Warranty
— Time within which Notice must be Sent. —
Section 20 of the Sale of Food and Drugs Act,
1899, provides that " A warranty or invoice
shall not be available as a defence to any
proceeding under the Sale of Food and Drugs
Acts unless the defendant has, within seven
days after service of the summons, sent to the
purchaser a copy of such warranty or invoice
with a written notice stating that he intends
to rely on the warranty or invoice, and
specifying the name and address of the person
from whom he received it, and has also sent a
like notice of his intention to such person " : —
Held, that the words " within seven days after
service of the summons " did not apply to the
notice to be sent to the person giving the
warranty, and that the words " within a
reasonable time " could not be read into the
section as applying to such notice ; it was
sufficient if, at the time the Court had to
decide whether a warranty or invoice was
available to the defendant as a defence, notice
had been given by the defendant to the person
giving the warranty or invoice of his intention
to rely on the warrantv or invoice as a defence.
Marcus v. Crook, 83 L. J. K.B. 1376; [1914]
3 K.B. 173; 111 L. T. 461; 78 J. P. 430;
12 L. G. R. 923 ; 24 Cox C.C. 328 ; 30 T. L. R.
538— D.
Semble, the Court were not bound to grant
an adjournment of the hearing in order to
enable the defendant to give notice to the
warrantor of his intention to rely on the war-
ranty as a defence. lb.
Written Warranty — Vendors' Responsi-
bility to Cease after Delivery other than under
Food and Drugs Act. — By an agreement made
between the appellant and a dairy company,
the company agreed to supply the appellant
with the whole of the new milk required by
him in his business as a milk seller. The
agreement contained the following provisions :
" The company hereby warrants each and
every consignment of milk delivered under this
contract to be pure, genuine new milk with all
its cream according to the conditions of the
Food and Drags Act . . . The company take
great precautions to obtain a supply of pure
milk with all its cream and to deliver the same
in that condition to the buyer. It is therefore
agreed that no responsibility is taken by the
company after delivery other than under the
Food and Drugs Act. and that for all other
purposes the buyer must satisfy himself at the
time of delivery that the milk is sweet, sound,
pure, and contains all its cream, and if the
milk is accepted by the buyer he shall not be
entitled to make any claim for compensation,
damages or costs upon the company afterwards
in respect of any milk which shall been
accepted by him under this contract" The
appellant sold certain milk in the same state
as that in which he purchased it from the
dairy company, and as, on analysis, it was
found to be deficient in fat, proceedings were
taken against him for selling to the prejudice
of the purchaser milk which was not of the
nature, substance, and quality demanded. The
appellant contended that the agreement under
which he purchased the milk constituted a
written warranty within section 25 of the Sale
of Food and Drugs Act, 1875. and that he was
entitled to the protection of that section. The
magistrate was of opinion that the agreement
was so qualified as not to amount to a written
warranty within section 25, and he accordingly
convicted the appellant : — Held, that the con-
viction was wrong, as the agreement constituted
a written warrantv within section 25. Wilson
V. Playle i88 L. t. 554) followed. Plowright
v. Burrcll, 82 L. J. K.B. 571; [1913] 2 K.B.
917
LOCAL GOVEKNMENT.
918
362 ; 108 L. T. 1006 : 77 J. P. 245 ; 11 L. G. R.
457; 23 Cox C.C. 438; 29 T. L. R. 398— D.
Selling with False Warranty — Time for
Laying Information. I — On August 9, 1910, the
appellants, wholesale milk dealers, agreed to
supply to a retail firm all the milk which tlie
firui might require at one of their branches,
and at the same time gave them a written
warranty by which they warranted that all
new milk which might thereafter be supplied
by the appellants should be pure new milk
with all its cream and unadulterated. On
January 17, 1911, the purchasers received from
the appellants a consignment of milk which
was not in accordance with the warranty. On
February 15, 1911, an information was laid
against the appellants charging them with
having given a false warranty in respect of the
milk, contrary to section 20, sub-section 6 of
the Sale of Food and Drugs Act, 1899 -.—Held,
that the warranty was a continuing one, and
therefore applied to all subsequent deliveries
of milk by the appellants to the purchasers ;
that the six calendar months limited by sec-
tion 11 of the Summary Jurisdiction Act,
1848, for laying such informations ran from
the date of each delivery, and not from the
date of the original warranty ; and that the
information laid against the appellants was
therefore in time. Thomas. Lim. v. Houqh-
ton, 81 L. J. K.B. 21; [1911] 2 K.B. 959;
105 L. T. 825 ; 75 J. P. 523 ; 9 L. G. R. 1142 ;
22 Cox C.C. 628— D.
Person Giving Warranty having Reason to
Believe that Statements in Warranty v?ere
True — Evidence.] — The appellants, wholesale
dealers in milk, who purchased their milk from
farmers in the country, w^ere charged with
having given to a purchaser from them a false
warranty in w'riting. The milk in respect of
which tiiey gave the warranty in question was
received from a farmer with w'hom they had
dealt for three years, and during that time
nothing had occurred to lead them to suppose
that the milk was not of the proper standard.
The farmer had given the appellants a war-
ranty with the milk in question. The appel-
lants having been convicted, — Held, on the
facts, that when the appellants gave the
warranty they had reason to believe that the
statements contained therein were true within
section 20, sub-section 6 of the Sale of Food
and Drugs Act, 1899, and that the conviction
must therefore be quashed. Daini Supply Co.
V. Hoiiqhton. 106 Tj. T. 220; 76 J. P. 43;
10 L. G. R. 208 ; 22 Cox C.C. 704 ; 28 T. L. R.
94-D.
c. Margarine.
See also Vol. IX. 464, 2011.
Printed Matter on Wrapper — Fancy or
Descriptive Name — "On" the Wrapper —
— "In" any Wrapper.' — The words " in any
wrapper " in section 8 of the Butter and
Margarine Act, 1907, are used advisedly; and
therefore that section which permits a person
dealing in margarine to describe it "in any
wrapper.- "' liy the name " margarine," either
alone or in combination with a fancy or other
descriptive name approved as therein pro-
vided, does not repeal section 6, sub-section 2
of the Sale of Food and Drugs Act, 1899,
which prohibits any printed matter other than
the word " margarine " to appear " on the
wrapper." Williains v. Baker, 80 L. J. K.B.
645; [1911] 1 K.B. 566; 104 L. T. 178;
75 J. P. 89; 9 L. G. R. 178— D.
Transparent Wrapper — Printed Words
Appearing through.] — The appellant sold to
the respondent a packet of margarine wrapped
in the following manner : The margarine was
first wrapped in a piece of plain paper. Next,
the parcel was inclosed in a cardboard case
upon the outside of which were the words
" Green Leaf Margarine," and around such
case was a transparent wrapper upon which
was printed the word " Margarine " only, the
wrapper being fastened at each end by means
of a circular gummed label upon which was
printed the words " id. per packet about
|lb." The words "Green Leaf" appeared
through the transparent wrapper. The
magistrate having convicted the appellant of
an offence under section 6 of the Margarine
Act, 1887, and section 6 of the Sale of Food
and Drugs Act, 1899, under which no other
printed matter than the word " Margarine "
shall appear on the wrapper, — Held, that the
fact that the words " Green Leaf " appeared
throngh the wrapper might constitute an
offence under the above sections, and that the
magistrate was not wrong in convicting the
appellant upon that ground. Held, further,
that the appellant had committed an offence
by attaching the printed circular labels to the
wrapper. Millard v. AUwood. 81 L. J. K.B.
514; [1912] 1 K.B. 590: 106 L. T. Ill;
76 J. P. 139; 10 L. G. R. 127; 22 Cox C.C.
676— D.
d. Fertilisers and Feeding Stuffs.
Sec also Vol. IX. 2014.
Food for Cattle — Failure to Give Invoice —
Liability of Seller — Fertilisers and Feeding
Stuffs.] — Bv section 6, sub-section 1 of the
Fertilisers and Feeding Stuffs Act, 1906, if
any person who sells any article for use as
food for cattle fails without reasonable excuse
to give, on or before or as soon as possible after
the delivery of the article, the invoice required
by the Act, he is liable to a penalty; and
by sub-section 3 " a prosecution for an offence
under this section shall not be instituted except
with the consent of the Board of Agriculture
and Fisheries. ..." The Department of
Agriculture and Technical Instruction for
Ireland instituted a prosecution against the
respondents for an offence committed in
England under section 6. sub-section 1 of the
Act without having obtained the consent of
the Board of Agriculture and Fisheries : —
Held, that such consent was necessary under
section 6, sub-section 3, notwithstanding that
certain preliminary steps had been taken in
Ireland, and that the magistrate had therefore
no jurisdiction to entertain the case. Hill v.
Phnnii.r Veterinary Supplies. Lim., 80 L. ,T.
K.B. 669: [l^H] 2 K.B. 217; 105 L. T. 73;
75 J. P. 321; 9 L. G. R. 731; 22 Cox C.C. 508
— D.
919
LOCAL GOVERNMENT.
920
InYoice — " Invoice required by this Act " —
Statement of Percentages of Oil and Albumi-
noids.]— By section 6, sub-section 1 la) of the
Fertilisers and Feeding; Stuffs Act, 1906, a
person who sells any article for use as food
for poultry is liable to a penalty if he fails
to give "the invoice required by this Act."
By section 1, sub-section 2, this, in the case
of any article artificially prepared otherwise
than by being mixed, broken, ground, or
chopped is an invoice stating " what are the
respective percentages (if any) of oil and
albuminoids contained in the article " : —
Held, on a sale of greaves, that an invoice
expressed as follows : " Greaves, not less than
15 per cent, albuminoids and 2i per cent, oil "
did not comply with the requirements of the
Act. Kyle v. Jeivers, 84 L. J. K.B. 255;
112 L. T. 422; 79 J. P. 176; 13 L. G. R. 260
— D.
Poultry Food — Article Artificially Prepared
— Preparation by Mixing — Invoice — Fertilisers
and Feeding Stuffs. 1 — The respondents sold a
quantity of poultry food without giving to the
purchaser an invoice stating what were the
respective percentages of oil and albuminoids
contained in it. The food was composed of
three substances — namely, (a) biscuits made
by the respondents by baking a cereal sub-
stance; (b) greaves, the refuse or sediment left
in making tallow or soap grease, purchased by
the respondents in blocks ; (c) oyster-shells
broken to a suitable size. The biscuits were
broken by the respondents' machinery to the
size required, and the greaves chopped to
pieces; the broken fragments of biscuits, the
pieces of greaves, and the broken pieces of
oyster-shells were then mixed together by the
machinery, and the resulting mixture formed
the poultry food : — Held, that the food was
an article artificially prepared " otherwise
than by being mixed, broken, ground, or
chopped " within the meaning of section 1,
Bub-section 2 of the Fertilisers and Feeding
Stuffs Act, 1906, and that the respondents
had therefore committed an offence in failing
to supply to the purchaser an invoice stating
the percentages of oil and albuminoids con-
tained in the food as required by that sub-
section. Latham v. Spillers if Bakers, Lim.,
82 L. J. K.B. 833; [1913] 2 K.B. 355;
108 L. T. 996; 77 J. P. 277; 11 L. G. R. 539;
23 Cox C.C. 422— D.
" Sharps " — Article Artificially Prepared
Otherwise than by Being Mixed, Broken,
Ground, or Chopped — Natural Substance Pro-
duced by Separation — Invoice Stating Per-
centages of Oil and Albuminoids.] — Section 1,
Bub-section 2 of the Fertilisers and Feeding
Stuffs Act, 1906, provides that every person
who sells for use as food for cattle or poultry
any article which has been artificially pre-
pared otherwise than by being mixed, broken,
ground, or chopped, shall give to the purchaser
an invoice stating what are the respective
percentages (if any) of oil and albuminoids
contained in the article. The respondents sold
for use as food for cattle or poultry a substance
known as " sharps," which contained oil and
albuminoids. Sharps are an offal of wheat,
being that part of the wheat which remains
after the flour and bran have been removed
by the following process : Wheat is taken in
the whole grain and passed by the miller
through his mill. The wheat-meal so made is
then by mechanical means passed by air
currents through a series of sieves, whereby
it is separated and divided into three sub-
stances— flour, sharps, and bran. The chemical
composition of each of these three substances,
when thus produced, differs from that of each
other and from that of the original wheat,
but no other chemical change is effected : —
Held by Avory, J., and Shearman, J.
(Rowlatt, J., dissenting), first, that sharps
are not an article artificially prepared within
the meaning of the section; and secondly, that,
assuming they are, they are not artificially
prepared otherwise than by being ground. The
respondents were, therefore, not compelled to
give to the purchaser an invoice stating the
percentages of oil and albuminoids in the
article sold. Worcestershire County Council
V. Notley, 83 L. J. K.B. 1750; [1914] 3 K.B.
330 ; 111 L. T. 382 ; 78 J. P. 340 ; 12 L. G. R.
874; 24 Cox C.C. 316; 30 T. L. R. 516— D.
11. Smoke.
See also Vol. IX. 474, 2017.
Emission of Black Smoke.] — The provisions
of Article II. (2) (a) of the Bolton Order, con-
firmed by the Local Government Board
Provisional Orders Confirmation (No. 15) Act,
1893, making it an offence to allow the emis-
sion of black smoke from any chimney not
being the chimney of a private dwelling house,
are not controlled by section 334 of the Public
Health Act, 1875. Bessemer v. Gould,
107 L. T. 298 ; 76 J. P. 349 ; 10 L. G. R. 744 ;
23 Cox C.C. 145— D.
Emission Caused by Negligence of Stoker —
Liability of Occupier of Premises.] — Sec-
tion 5, sub-section 2 of the Bradford Corpora-
tion Act, 1910, provides that if any person uses
or suffers to be used any furnace in any build-
ing used for trade or manufacture " which
shall not be constructed upon the principle
of consuming and so as to consume or bum
its own smoke, or if any person using or per-
mitting to be used any furnace so constructed
shall in the event of the smoke arising there-
from not being effectually consumed or burnt
fail to shew that such furnace has not been
negligently used, he shall, if he is the owner
or occupier of the premises or a foreman or
other person employed by such owner or
ocupier, be liable to a penalty not exceeding
5Z. . . ." : — Held, that under this provision
the owner or occupier of the premises is liable
to the penalty if the furnace has been used
negligently, whether by himself or by some
one else. Chisholm v. Doulton (58 L. J.
Q.B. 133; 22 Q.B. D. 736) distinguished.
Armitage v. Nicholson, 108 L. T. 993; 77 J. P.
239; 11 L. G. R. 547; 23 Cox C.C. 416;
29 T. L. R. 42.5— D.
Emission of Smoke from Furnace Con-
structed so as to Consume its Own Smoke —
Emission Due to Default of Stoker — Sufficiency
of Evidence.] — By section 53, sub-section 1 of
the Bradford Corporation Act, 1910, every
921
LOCAL GOVERNMENT.
922
furnace employed in any mill is to be con-
structed upon the principle of consuming, and
so as to consume or burn, the smoke arising
from such furnace. Sub-section 2 : "if any
person using or permitting to be used any
furnace so constructed shall in the event of
the smoke arising therefrom not being effect-
ually consumed or burnt fail to show that such
furnace has not been negligently used he shall
if he is the owner or occupier of the premises
... be liable to a penalty. ..." By sec-
tion 72, sub-section 3 of the Bradford
Corporation Act, 1913, no penalty is to be
inflicted on an owner or occupier under sub-
section 2 of section 53 of the Act of 1910
" where the furnaces are constructed in manner
provided by sub-section 1 of the said section
and the emission of smoke was due to the act
or default of a stoker, engineer or other person
employed by such owner or occupier."
Upon the hearing of an information under
section 53 of the Act of 1910 an expert witness
gave evidence that the emission of the smoke
could not have been caused otherwise than by
means of some act or default of the stokers
or engineer : — Held, that the Justices were not
bound to accept this evidence as conclusive,
but were entitled to exercise their own judg-
ment upon the whole of the evidence and to
convict the defendants. Held, further, that
the burden of shewing that they came within
the exemption in section 72, sub-section 3 of
the Act of 1913 lay upon the defendants.
Drummond v. Nicholson, 84 L. J. K.B. 2190;
79 J. P. 525; 13 L. G. E. 958— D.
No Mechanical Apparatus for Stoking.]
— The fact that the furnace of the boiler of a
steam engine is not fitted with any of the
S3'stems for mechanical stoking, which have
among their objects improved smoke consump-
tion, does not make the furnace a nuisance
within the meaning of section 16, sub-section 9
of the Public Health (Scotland) Act, 1897,
where mechanical stoking as contrasted with
stoking by hand is unsuitable for the particular
business. Leith Magistrates v. Bertram,
[1915] S. C. 1133— Ct. of Sess.
12. Water Supply.
See also Vol. IX. 474, 2017.
Covenant to Allow Vendor's House a
Reasonable Supply Free of Charge — Enlarge-
ment of House — Presumed Increased User —
Lapse of Covenant — Covenant to Supply Farm
Buildings — Severable Contracts — Motor
House.] — A covenant by a local authority to
supply a small farmhouse with a reasonable
supply of water free of charge is no longer
binding if the house be so altered and enlarged
that the identity of the old building is lost,
and the measure of what would have been a
reasonable supply at the date of the contract
no longer ascertainable. But a similar cove-
nant, entered into at the same time, to supply
a reasonable amount of free water to the farm
buildings is still enforceable, the covenants
being severable ; and this is so, notwithstand-
ing that the buildings have been let off to a
neighbouring farmer. A motor house, to
which the water is carried for the purpose of
washing a car, is not, however, a " farm
building " within the scope of the covenant,
and such user is unreasonable. Hadham
Rural Council v. Crallan, 83 L. J. Ch. 717;
[1914] 2 Ch. 138; 111 L. T. 154; 78 J. P.
361 ; 12 L. G. E. 707 ; 58 S. J. 635 ; 30 T. L. R.
514— Neville, J.
13. Cinematograph — See title
Cinematograph.
14. Indecent or Profane Language.
Street or Public Place — Annoyance of
Passengers — Public House.] — A by-law for-
bidding the use of profane, obscene, or indecent
language in any street or public place to the
annoyance of passengers cannot be held to
apply to language alleged to be indecent used
in a public house and only heard by persons
present therein. Russon v. Button (No. 1),
104 L. T. 601; 75 J. P. 209; 9 L. G. R. 558;
22 Cox C.C. 490; 27 T. L. R. 197— D.
15. Foreshore.
See also Vol. IX. 2020.
Regulation of Selling and Hawking Articles
— By-laws Restricting Selling and Hawking to
Portion of Shore Allotted by Notice — Convic-
tion.]— Under powers conferred by their local
Act the corporation of E. made a by-law that
where any part of the seashore had by notices
conspicuously affixed been set apart for the
hawking of specified articles, no person should
hawk such articles on any other part of the
seashore. The appellant had been convicted
by Justices of hawking on a prohibited portion
of the seashore : — Held, that as there was no
finding in the case which enabled the Court
to say that the portion set apart for hawking
was insufficient in fact, nor evidence that the
corporation had improperly made the by-law
for their own benefit, and nothing on the face
of the case to shew the by-law was unreason-
able, the conviction must be upheld. Cassell
V. Jones, 108 L. T. 806; 77 J. P. 197;
11 L. G. R. 488; 23 Cox C.C. 372— D.
Per Channell, J. : By-laws of public bodies
relating to seashores to which the public have
access stand on a different footing to other
by-laws of such bodies ; and the assigning of
one part for hawking of specified articles, and
allowing the erection of stalls (for which the
holders pay a rent to the local authority) for
the sale of the same articles on another, is
prima facie within their power so long as the
portion set apart for liawking is not so wholly
insufficient and obviously illusory as to be pro-
hibitive. The principle is that local authorities
are to decide local questions. lb.
Public Assemblages — Delivery of Addresses,
Sermons, Lectures, &c. — Restriction as to
Places and Hours.] — Under the provisions of
a local Act enabling a local authority to make
by-laws " for the preservation of order and
good conduct among persons frequenting the
parades, foreshores, &c." of a maritime town,
the local authority made a by-law prohibiting
the delivery of speeches or holding of public
assemblages except upon such portion or por-
tions of the foreshore as they should from time
to time appoint by notice affixed or set up
923
LOCAL GOVERNMENT.
924
thereon, and subject to such conditions and
regulations as they might from time to time
prescribe. Eegulations under this by-law
reserved certain specified places for orderly
public assemblages ; and the Salvation Army
had for years held services on one of these
reserved spots. Subsequently the local
authority abolished this particular spot as a
place for the delivery of public addresses and
the holding of public assemblages, substitut-
ing another, and by order prescribed a new
set of regulations and conditions in substitu-
tion for those previously in force. Proper
notice of this order was given, but no con-
firmation or allowance of the new regulations
and conditions by the Local Government
Board was considered necessary or obtained.
The appellant, however, continued to hold
orderly Salvation Army services on the
original spot, and was convicted of doing so,
and fined -.—Held, that the power given by
the special Act enabled the local authority to
prohibit that which would otherwise have been
a perfectly lawful act on the part of the appel-
lant. The by-laws were neither ultra vires
nor vitiated by the subsequent regulations and
conditions, which the Court did not consider
unreasonable. The allocation of particular
places for the holding of Salvation Army meet-
ings was not beyond the scope of the by-law,
and it was not intended that the Local Govern-
ment Board, who knew nothing of the locality,
should fix them. Slee v. Meadows, 105 L. T.
127; 9 L. G. R. 517; 75 J. P. 246; 22 Cox
C.C. 537— D.
Seaside Encampment — Alleged Public
Nuisance.] — See Att.-Gen. v. Kerr, ante, col.
901.
Vn. EXPENSES.
1. Notice to do Works.
See also Vol. IX. 490, 2042.
Notice to Make Drain and Provide Water
Closet.] — Where notice is given by a local
authority to a person to do work which he
cannot legally do without the permission of a
third party, and where there is a substantial
difficulty in the way of his obtaining such
permission, it is doubtful whether, when the
work is done by the local authority, the cost
can be recovered from the person to whom
notice was given, but it lies upon him to
shew that he could not obtain the necessary
permission. Meyrick v. Pembroke Corpora-
tion, 76 J. P. 365; 10 L. G. E. 710— D.
" House " within One Hundred Feet of
Sewer.] — A "house" may be within one
hundred feet of a sewer within the meaning
of section 23 of the Public Health Act, 1875,
although the main building is not within that
distance. Ih.
Notice to Execute Works within Specified
Time — Right of Frontager to Complete his
Share of the Work after Expiration of the
Time."! — Where a local authority has given
notice to a frontager under section 150 of the
Public Health Act, 1875, to execute works,
including the connection of drains from the
gullies with an existing surface-water sewer
in the street, within a specified time, and the
frontager has bona fide commenced but has
not finished his share of the work within the
time specified, he may, after the expiration
of that time, if the local authority have not
in the meantime intervened and taken over
the completion of the work, himself complete
it, and make the necessary connection of the
drains from the gullies with the sewer.
Denman v. Finchley Urban Council,
10 L. G. R. 697 ; 76 J. P. 405— Joyce, J.
Urgent Repairs to Private Streets — Notice by
Local Authority to Frontagers — Counter-
notice to Authority to Proceed under Private
Street Works Act, 1892— Withdrawal of
Original Notice.] — A local authority gave
notice under section 19, sub-section 1 of the
Public Health Acts Amendment Act, 1907, to
frontagers " to execute repairs in a street, not
being a highway repairable by the inhabitants
at large." This was met by a counter-notice
of a majority of the frontagers under sub-
section 4, requiring the local authority to
proceed under the Private Street Works Act,
1892. The local authority resolved to pro-
ceed accordingly, but subsequently abandoned
their resolution, and withdrew the notice they
had given under the first-mentioned sub-
section. A rule nisi for a mandamus requir-
ing the local authority to proceed forthwith
in relation to the street, under the Private
Street Works Act, 1892, was then obtained
by the frontagers : — Held, that, inasmuch as
questions had been raised — first, as to part of
the road being repairable by the inhabitants
at large; secondly, as to the work which the
local authority had, before they withdrew their
notice, resolved to execute under the Act of
1892 being excessive; and thirdly, as to some
of the persons served with that notice not
being frontagers, the Court, in the exercise
of its discretion, ought not to make the rule
absolute. Rex v. Epsom Urban Council;
Course, Ex parte, 76 J. P. 389; 10 L. G. R.
609— D.
Quare, whether a counter-notice under
section 19, sub-section 4 of the Act of 1907
does more than require the local authority, if
they proceed further in the matter at all, to
proceed under one or other of the enactments
mentioned in that sub-section. Qucere, whether
the application for the mandamus was barred
under the Public Authorities Protection Act,
1893 (56 & 57 Vict. c. 61), s. 1 (a), by the
lapse of more than six months since the alleged
default of the local authority. lb.
2. Apportionment.
See also Vol. IX. 493, 2043.
Private Street Works — Premises not
Abutting on Street— Access through '* court,
passage, or otherwise."] — By section 10 of the
Private Street Works Act, 1892, in a pro-
visional apportionment of expenses the
apportionment, unless the urban authority
otherwise resolve, is to be according to the
frontage of the respective premises ; but the
urban authority may, if they think just,
" include any premises which do not front,
925
LOCAL GOVERNMENT.
926
adjoin, or abut on the street or part of a street,
but access to which is obtained from the street
through a court, passage, or otherwise, and
which in their opinion will be benefited by
the works, and may fix the sum or proportion
to be charged against any such premises
accordingly -.—Held, that, in applying the
above section to a road or way giving access to
particular premises, the urban authority should
consider whether the road is substantially a
means of access from the street to the
premises in the same way in which a court
or passage gives access, or whether it is a road
made for other purposes and only incidentally
affording access to the premises. Neivquay
Urban Council v. Richard, 80 L. J. K.B.
1164; [1911] 2 K.B. 846; 105 L. T. 519;
9 L. G. E. 1042 ; 75 J. P. 382— D.
If the road is one along which houses may
be built, and which will probably become a
street, it is not within the section. lb.
Held, further, that the words "court, pass-
age, or otherwise " do not mean that the road
or way along which access to the premises is
obtained must necessarily be narrow. lb.
Premises Outside Urban District —
Insertion in Provisional Apportionment,] —
Premises situate outside a local district should
not be included in a provisional apportionment
under section 6 of the Private Streets Works
Act, 1892, of the expenses of making up a
street within the local district, although they
front, adjoin, or abut on the street. Heme
Bay Urban Council v. Payne (76 L. J. K.B.
685; [1907] 2 K.B. 130) explained. Alderson
V. Bishop Auckland Urban Council, 82 L. J.
K.B. 737; [1913] 2 K.B. 324; 76 J. P. 347;
10 L. G. E. 722— D.
Charge in Respect of Making up Roads —
Several Different Properties Belonging to
Same Owner in Road.] — Where an owner has
several premises in the same street, and the
local authority have incurred expenses in
executing street works under section 150 of
the Public Health Act, 1875, and such expenses
have not been recovered from the owner, the
expenses of such works must be apportioned
in respect of each of the separate premises
fronting on the street, and the local authority
is entitled under section 257 of that Act to a
charge in respect of each of such separate
premises and not to a charge for one sum in
respect of all the premises belonging to such
owner. Croydon Rural Council v. Belts,
83 L. J. Ch. 709; [1914] 1 Ch. 870;
12 L. G. E. 906; 58 S. J. 556— Warrington, J.
Notice in respect of Part only.] — It appeared
that the respondents, the local authority, had
put five earth closets into five houses of the
appellant, but had only given notice under
the section in respect of four of them, and
their surveyor accordingly took the total ex-
penditure on the five houses, divided it by
five, and charged the appellant with four-
fifths of the whole : — Held, that this operation
was merely a division of expenses between the
respondents on the one hand and the appellant
on the other, and not an apportionment of
expenses witliin the meaning of section 257 ;
and accordingly that the appellant was not
entitled to a lapse of three months' time before
the respondents could proceed to recover their
expenses in respect of the four houses : the
words in section 257 — " where such expenses
have been settled and apportioned by the
surveyor of the local authority as payable by
such owner " — having reference to an appor-
tionment between such owner and other
owners. Bower v. Caistor Rural Council,
9 L. G. E. 448; 75 J. P. 186— D.
Private Street Works — Apportionment of
Expenses — Premises not Abutting on Street —
Access through " court, passage, or other-
wise."]— Where works are executed under the
Private Street Works Act, 1892, by a local
authority, the expenses thereof can, under
section 6, sub-section 1, be apportioned on
premises fronting, adjoining, or abutting on
the street or part of the street in which the
works are executed; and, under section 10,
on premises access to which from such street
or part of street is obtained " through a court,
passage, or otherwise " : — Held, that the
words " or otherwise " refer to some means
of access of the same character as a court or
passage, and do not include access through a
private street. Dictum of Lord Alverstone,
C.J., in Newquay Urban Council v. Rickeard
(80 L. J. K.B. 1164, at p. 1168; [1911]
2 K.B. 846, at p. 851) to the contrary dis-
approved. Chatterton v. Glanford Brigg Rural
Council, 84 L. J. K.B. 1865; [1915] 3 K.B.
707 ; 113 L. T. 746 ; 79 J. P. 441 ; 13 L. G. E.
1352— D.
3. Arbitration.
See also Vol. IX. 496, 2046.
Omission of One of a Frontager's Houses
from Notice and Apportionment — Jurisdiction
of Arbitrator.] — The notice to execute certain
private street improvement works under
section 150 of the Public Health Act, 1875,
served on the owner of two houses, E. and F.,
the gardens of which adjoined each other and
abutted on the street, and also the apportion-
ment of the expenses incurred by the local
authority in executing the works on the default
of the owners, by mistake referred only to the
" garden of E.," though the length of frontage,
according to which the owner's share of the
expenses was apportioned, consisted of that of
the two gardens. The owner disputed the
apportionment, and the dispute was referred
to arbitration. The arbitrator having by his
award declared the apportionment of the
owner's share to be bad, and having adjudged
that such share should be reduced to a sum
which was proportionate to the frontage of the
" garden of E," — Held, that the award was
valid. Thomas v. Hendon Rural Council,
9 L. G. E. 234 ; 75 J. P. 161— D.
Withdrawal by Frontager of Notice Disput-
ing Apportionment — Award — Jurisdiction of
Arbitrator.] — A local authority, acting under
the provisions of the Public Health Act, 1875,
served on the owner of premises adjoining or
abutting on a certain street or yard a notice
requiring him within a specified time to level,
pave, flag, and channel that portion of the
927
LOCAL GOVEENMENT.
928
street or yard on which his premises abutted.
The notice not being complied with, the local
authority did the work themselves, and their
surveyor served upon the owner an apportion-
ment of his proportion of paving, &c., the
whole of the street or yard. Within the time
limited by the Act the owner disputed the
apportionment solely on the ground that the
larger portion of the area paved &c. was
private property, for which he contended he
was not liable : but he was willing to pay an
apportionment in respect of a small portion of
the area for which he admitted liability. The
local authority appointed their arbitrator to
determine the dispute, but the owner declined,
when requested, to appoint his arbitrator, and
within fourteen days, the time limited by
section 180 of the Act, withdrew his notice
disputing the apportionment. The arbitrator
appointed by the local authority thereupon,
after duly notifying both parties, proceeded to
hear and determine the dispute between them
in the absence of the owner who declined to
attend the reference. By his award he
declared (inter alia) that the said street or
yard was a street within the meaning of
section 4 of the Act, that the portion of such
street forming the subject of the reference was
not repairable by the inhabitants at large, that
the cost of making it up under section 150 of
the Act was properly payable by the owners
of premises fronting, adjoining, or abutting on
such street, and that the owner in question
was the owner of property fronting, adjoining,
or abutting on the said street to the extent
of 112 feet 10 inches, including the gateway.
He awarded that the contribution payable by
the owner in respect of his premises was
19L 16s. 3d., and that he should pay the
costs of the arbitration and the arbitrator's
charges and expenses. The Divisional Court
held — first, that the revocation by the owner
of his notice disputing the apportionment was
too late, and that the arbitrator was properly
appointed; but secondly, that the matters
determined by the arbitrator were unnecessary
for assessing the proper apportionment of the
owner, and therefore beyond the arbitrator's
province, and that the award was bad for
excess of jurisdiction : — Held, on appeal, that
as the owner had not appointed an arbitrator
to act on his behalf, he had the right to with-
draw his notice disputing the apportionment
within fourteen days, and that as he had with-
drawn his notice he had made no submission
to arbitration, and therefore the arbitrator was
not entitled to act as sole arbitrator, and the
award was a nullity, and must be set aside.
Held, further, that even if the arbitrator had
jurisdiction to make an award, he had no
jurisdiction to determine that the place was a
" street " within the meaning of the Act and
was not repairable by the inhabitants at large,
and for this reason also the award must be set
aside. Stoker and Morpeth Corporation, In re,
84 L. J. K.B. 1169: [1915] 2 K.B. 511;
112 L. T. 753; 79 J. P. 201; 13 L. G. E. 233
— C.A.
4. Proceedings for Eecovery.
See also Vol. IX. 498. 2047.
Works Executed on Default of Owner —
Notice — Authentication of Documents —
Signature of Rating Surveyor."! — Expenses
incurred under section 36 of the Public Health
Act, 1875, by a local authority in substituting
water closets for privies in houses were
demanded from the owner of the houses, who
had failed to carry out the work after having
been required to do so. The notice demand-
ing payment was signed on behalf of the local
authority by their rating surveyor. In sum-
mary proceedings for the recovery of the
amount expended the Justices found as a fact
that it was part of the duty of such rating
surveyor to prepare, sign, and serve all notices
demanding payment of moneys due to the local
authority, and to collect and receive payment
on their behalf of all such moneys : — Held,
that the notice of demand had been sufficiently
signed in compliance with section 266, and
that an objection to it on the ground that it
ought to have been signed by the clerk to the
local authority, or their surveyor or inspector
of nuisances, could not be maintained. Per
Lord Alverstone, C.J. : It is better upon
principle that a notice connected with a parti-
cular department should be signed by an officer
of that department. Willis v. Rotherham
Corporation, 105 L. T. 436: 9 L. G. E. 948;
75 J. P. 421— D.
Vacant Land Adjoining Street — Land Used
for " purpose causing inconvenience or annoy-
ance to the public " — Power of Local Authority
to Fence — Recovery of Expenses from Owner.]
—Section 32 of the Willesden Urban District
Council Act, 1903, provides that " If any land
in the district . . . adjoining any street is
allowed to remain unfenced or the fences
thereof are allowed to be or to remain out of
repair and such land is in the opinion of the
council owing to the absence or inadequate
repair of any such fence a source of danger to
passengers or is used for any immoral or in-
decent purposes or for any purpose causing
inconvenience or annoyance to the public,"
then, after notice to the owner or occupier,
" the council may cause the same to be fenced
or may cause the fences to be repaired in such
manner as they think fit and the expenses
thereby incurred may be recovered from such
owner or occupier summarily as a civil debt."
The appellant erected round some vacant
land belonging to him within the district of the
respondent council a barrier consisting of posts
3 feet 4 inches high and 8 feet apart, with a
rail along the top. This barrier was not out
of repair. The respondent council served upon
the appellant a notice stating that the land,
owing to the absence of a proper fence, was
used for a purpose causing inconvenience or
annoyance to the public and requiring him
forthwith properly to fence in the land. The
respondents subsequently erected round the
land an " economic " fence and sued the appel-
lant to recover the expenses thereby incurred.
The Justices held that it was for the council
and not for them to decide whether the land
was used for a purpose causing inconvenience
or annoyance to the public, and that as the
council had decided that the land was being
so used they could recover : — Held, that the
decision of the Justices was wrong ; that the
user of the land for a purpose causing incon-
venience or annoyance to the public must be
929
LOCAL GOVEENMENT.
930
proved by evidence of the fact in the proceed-
ings before the Justices ; and that the case
should be remitted to the Justices in order
that the respondents might have the oppor-
tunity of giving such evidence. Upjohn v.
Willesden Urban Council, 83 L. J. K.B. 736;
[1914] 2 K.B. 85; 109 L. T. 792; 78 J. P.
54 ; 11 L. G. R. 1215 ; 58 S. J. 81 ; 30 T. L. R.
62— C. A.
Action Claiming Charge in Respect of Appor-
tioned Expenses — Time for.] — An action by a
local authority claiming to be entitled to a
charge on premises under section 13 of the
Private Street Works Act, 1892, in respect of
apportioned expenses, and 5 per cent, interest
thereon, may be brought, although three
months have not elapsed from the date of the
notice served on the defendant requiring pay-
ment of such expenses. Pontypridd Urban
Council V. Jones, 75 J. P. 345 — Swinfen
Eady, J.
Charge on Property — Neglect to Answer —
Inquiry as to Incumbrances — Contempt of
Court — Attachment — Costs.] — Where an order
has been obtained by a local authority giving
them a charge in priority to other incum-
brances on property adjoining a road for their
costs of paving such road, and directing an
enquiry as to incumbrances, and the sole
partner of the defendant company neglects to
obey an order that he should answer such
enquiry on affidavit, and a subsequent order
that he should attend for examination : —
Held, on a motion to attach him, that an
order for attachment must be made, and the
costs of, and incidental to, the motion were
directed to be added to the charge. Tottenham
Urban Council v. Nielson cf Co., 79 J. P. 504;
69 S. J. 667— Neville, J.
Time Running from Demand, not from
Apportionment — Cumulative Remedies.] —
The B. Corporation Act, 1872, provided by
section 117 that all expenses incurred by the
corporation for private improvements expenses
under the Public Health Acts, for the payment
of which the owner of the land or buildings
concerned was liable, should, if not paid on
demand, be recoverable by the corporation
either as a debt in any Court of competent
jurisdiction, or by distress after summoning
the owner. In 1901 S. was served with notice
to execute certain improvements, which were
executed by the corporation, the apportionment
of expenses being in December, 1905. Notice
of the apportionment was served in February,
1906, and a demand for payment in June,
1906. In August, 1911, summary proceed-
ings were taken for recovery of the amount
due, but were dismissed as being out of time.
In March, 1912, proceedings were commenced
in the Salford Hundred Court for recovery
of the amount due as a civil debt : — Held, that
the remedies given by section 117 of the Act
were cumulative ; that the limitation of time
applicable to summary proceedings did not
apply to proceedings in a Court of competent
jurisdiction for the recovery of a sum as a
civil debt, which was six years, running from
the date of the demand for payment, and not
from the apportionment ; and that the plaintiffs
were entitled to the amount claimed. Bolton
Corporation v. Scott, 108 L. T. 406; 77 J. P.
193; 11 li. G. R. 352— C. A.
Vin. RATES.
1. Liability.
a. Property Liable to Lower Rates.
See also Vol. IX. 518, 2054.
Owner Rated instead of Occupier at Reduced
Amount — Owner Occupying his own House.] —
The power given to an urban authority by
section 211, sub-section 1 (a) of the Public
Health Act, 1875, to rate at a reduced amount
the owner instead of the occupier where the
rateable value of the premises does not exceed
the sum of ten pounds only applies where the
owner and occupier of the premises are
different persons. Rex v. Propert ; Jones,
Ex parte, 80 L. J. K.B. 98; [1911] 1 K.B. 83;
103 L. T. 844 ; 74 J. P. 474 ; 9 L. G. R. 38— D.
Owners of Properties, under the Net Annual
Yalue of 10/., Rated — Abatement or Com-
pensation Claimed by Owners.] — Prior to the
passing of the Public Health Act, 1875, the
R. Improvement Commissioners had under
section 65 of their special Act of 1865, which
Act incorporated section 181 of the Towns
Improvement Clauses Act, 1847, as to the
rating of owners instead of the occupiers of
property of lOL per annum and under, levied
a rate called "the R. Improvement Rate."
After 1875 the R. Improvement Commissioners
became the urban district council and con-
tinued to levy the rate as a local improvement
rate in the nature of a general district rate
under their special Act of 1865 and the Public
Health Act, 1875, ss. 207 and 227. Section 211
of the Public Health Act, 1875, allows pro-
perties of a rateable value not exceeding 101.
where the owner is rated instead of the
occupier, to be assessed on a reduced estimate.
In 1912 certain owners of properties in R. of
10/. per annum and under refused to pay the
rate in full and demanded the reductions or
compensation allowances given to owners of
such properties by section 211 of the Public
Health Act, 1875 -.—Held, that the rate was
an improvement rate in the nature of a general
district rate governed by the R. Improvement
Act, 1865, and the incorporated Towns
Improvement Act, 1847, s. 181; that the 10/.
property owners were liable to pay in full, and
were not entitled to reductions or allowances
under section 211 of the Public Health Act,
1875. Ross Urban Council v. Daniels,
109 L. T. 933; 77 J. P. 456; 11 L. G. R.
1225— D.
Land Used as Railway.] — Certain premises
alleged by a railway company to be " used as
a railway," and as such liable to be assessed
at one-fourth only of their net annual value,
were included in the valuation list under the
heading " buildings " and not under the
heading " railways, fisheries, &c.," and were
accordingly assessed by the urban council at
their full value. No objection was made by
the railway company to the valuation list prior
30
931
LOCAL GOVERNMENT.
932
to the making of the rate, and no appeal was
taken by them either against the valuation or
against this rate. The urban council having
sued the railway company for the disputed
rates, — Held, that the plaintiffs were entitled
to recover the full rate. Whaley v. Great
Northern Railway, [19131 2 Ir. R. 142— C. A.
Land at the Side of Railway — Necessary
Adjuncts of Conveyance J — Whether land is
'■ used as a railway " for the purposes of rating
is a question of fact in each particular case.
By the Liverpool Corporation Act, 1893, power
was given to levy a general rate on all property
assessed to the relief of the poor in the city,
and by section 36 (ii.) it was provided that
" No person occupying land used . . . only
... as a railway made under the powers
of any Act of Parliament for public conveyance
shall be rated in respect of the same to the
general rate in any greater proportion than
one-fourth part of the net annual value
thereof." The appellant company were the
ovsTiers and occupiers of two goods stations in
the city, which were made under the powers
of various Acts of Parliament. These stations
included, in addition to the lines of railway,
loading ways, platforms, and mounds for goods
and cattle, sidings and turntables, hoist houses,
capstans, and machinery, approach roads, and
other buildings, and roofs over the lines, load-
ing ways, and loading platforms : — Held, that
the exemption in the Act extended not only to
the actual lines of railway, but included land
at the side of the rails used for necessary
adjuncts of conveyance, but did not extend to
accommodation and appliances which, though
convenient, were not reasonably necessary for
the conveyance of public traffic ; and therefore
the loading ways, platforms, and mounds,
sidings and turntables, hoist houses, capstans,
and machinery were within the exemption, but
the approach roads, roofs, and other general
buildings used in connection with the railway
were not. Lancashire and Yorkshire Railway
V. Liverpool Corporation, 83 L. J. K.B. 1273;
[1915] A.C. 152; 111 L. T. 596; 78 J. P. 409;
12 L. G. R. 771 ; 58 S. J. 653 ; 30 T. L. R. 563
— H.L. (E.)
Decision of the Court of Appeal (82 L. J.
K.B. 1096; [1913] 3 K.B. 247) reversed. 7b.
Tramway — Not a "Railway."] — In public
legislation the word " railway " does not
include a tramway unless it is expressly made
to do so by the terms of the Act. Therefore
a tramway company is not entitled to the
exemption from rating given to railways by
section 211, sub-section 1 (b) of the Public
Health Act, 1875. Swansea Improvements and
Tramway Co. v. Swansea Urban Sanitary
Authority (61 L. J. M.C. 124; [1892]
1 Q.B. 357) approved. Wakefield Corporation
V. Wakefield and District Light Railway
(77 L. J. K.B. 692; [1908] A.C. 293) dis-
tinguished. Tottenham Urban Council v.
Metropolitan Electric Tramways, 83 L. J.
K.B. 60; [1913] A.C. 702; 109 L. T. 674;
77 J. P. 413; 11 L. G. R. 1071; 57 S. J. 739;
29 T. L. R. 720— H.L. (E.)
Judgment of the Court of Appeal (81 L. J.
K.B. 793; [1912] 2 K.B. 216) reversed. 7b.
Graving Dock — Entrance — " Land covered
with water."! — Bv section 211, sub-section 1
(b) of the Public Health Act. 1875, "the
occupier of any land covered with water " is
to be assessed in respect of it to the general
district rate at one-fourth only of its net annual
value. By an agreement made between the
parties an arbitrator was appointed to value
the dock estate of the Mersey Docks and
Harbour Board, a portion of which consisted
of graving docks, for the purpose of assess-
ment. The graving docks were excavations
with walls, quays, and gates having direct
access to the adjoining Birkenhead Docks, of
which they formed part. They were used for
the examination and repair of ships. The
ships were floated into them, and the water
was then pumped out. After the work was
carried out, the water was re-admitted and the
ships were floated out. The water was then
generally, but not always, pumped out and
the docks left dry. Each dock was approached
by an entrance, which was always covered
with water. The arbitrator held that the docks
with their entrances were not land covered
with water, and that they were therefore
assessable at their full value : — Held, that the
graving docks were not " land covered with
water " within the meaning of section 211,
sub-section 1 (b) of the Act of 1875, and must
therefore be assessed at their full net annual
value, but that the entrances were " land
covered with water," and were assessable at
one-fourth only of such value. Mersey Docks
and Harbour Board v. Birkenhead Corporation,
84 L. J. K.B. 1207; [1915] 2 K.B. 312;
113 L. T. 183 ; 79 J. P. 318 ; 13 L. G. R. 764 ;
31 T. L. R. 323— Scrutton, J.
b. Exemption.
See also Vol. IX. 521, 2057.
Building Exclusively Used for Purposes of
Public Charity — Borough Rate — General Dis-
trict Rate.] — The trustees of a will, acting
under their testator's directions, founded and
endowed a perpetual charity for the establish-
ment of an institution for ladies in reduced
circumstances. By the deed of foundation one
of the objects of the charity was to provide a
home for a limited number of such ladies, who
were to be called lady occupants, and for the
purpose of carrying out that object the trustees
were to build a number of houses, not exceed-
ing twenty-four, of such dimensions and in
such manner as they might from time to time
determine. The number of lady occupants was
to be the same as the number of houses, and
the trustees were from time to time to elect
as lady occupants such persons, being not less
than fifty years of age and being either
spinsters or widows, as they might consider
most deserving of the charity ; but a prefer-
ence was to be given to ladies who were born
in the parish in which the home was situate
or who had resided in that parish for five
years. Each lady occupant had to be in
possession in her own right of an income not
less than 201. per annum. No candidate was
to be ineligible by reason of her religious
profession or opinion. Any lady occupant
contracting marriage was to cease thenceforth
933
LOCAL GOVERNMENT.
934
to be entitled to any benefit under the charity.
In pursuance of the deed of foundation the
trustees built twelve houses with money left
by the testator augmented by bequests, twelve
in number, of varying amounts from other
persons. In each of the houses a lady occu-
pant resided under the conditions laid down
in the deed of foundation. All the lady
occupants possessed the qualifications required
by the deed of foundation. A small portion
of the furniture of each house was the property
of the trustees ; the rest of the furniture of
each house was the property of the lady
occupant of the house. All repairs were done
and all rates and taxes were paid by the
trustees ; but each lady occupant paid for the
gas and coals used by her and for medical
attendance : — Held, that the houses were
buildings exclusively used for the purposes
of public charity within the meaning of
section 168 of the Towns Improvement Clauses
Act, 1847, and that therefore neither the
trustees nor the lady occupants were liable to
be rated in respect of them. Shaiv v. Halifax
Corporation, 84 L. J. K.B. 761; [1915]
2 K.B. 170; 112 L. T. 921; 79 J. P. 257;
13 L. G. E. 316; 59 S. J. 315— C.A.
2. Mandamus to Enforce.
See also Vol. IX. 523, 2058.
Agreement for Joint User of Hospital —
Sharing of Expenses — Notice to Determine
Agreement — Validity — Arrears of Establish-
ment Expenses — Excusable Delay.] — Under
section 210 of the Public Health Act, 1875, a
general district rate may only be made and
levied retrospectively in order to raise money
to pay charges and expenses incurred within
six months before the making of the rate,
excluding from this period the time taken by
any proceedings to enforce the same ; but a
judgment obtained in any such proceedings
itself operates as a new charge within the
meaning of section 210, and in a case when
proceedings are not commenced until more than
six months after the liability accrued the
Court will grant a mandamus for the levying
of a rate to satisfy the judgment, if the delay
in commencing the proceedings was under the
circumstances excusable. Woolstanton United
Urban Council v. Tunstall Urban Council,
79 L. J. Ch. 522; [1910] 2 Ch. 347;
103 L. T. 98; 74 J. P. 353; 8 L. G. E. 870—
Neville, J. Varied, 80 L. J. Ch. 418; [1911]
1 Ch. 229; 103 L. T. 473; 75 J. P. 203;
9 L. G. E. 557— C.A.
By an agreement dated June 1, 1885, the
predecessors of the plaintiffs and of the
defendants and a corporation were to have the
use of a hospital and contribute rateably to
the expenses of the same. By an agreement
dated June 16, 1898, and made between the
same parties or their successors, the provisions
of the first agreement as to the management of
the hospital were varied, and this agreement
■was made determinable on six months' notice.
By the terms of a third agreement dated
August 2, 1905, made between the plaintiffs,
the defendants, and the corporation, and stated
to be supplemental to the previous agreements,
further alterations were made in the manage-
ment of the hospital and provisions were made
for discharging the corporation from all lia-
bilities under the agreements. In April, 1906,
the defendants gave notice under the second
agreement to determine the agreements, and
ceased to use the hospital. There were pro-
tracted negotiations between the parties which
lasted until November, 1909, and in Decem-
ber, 1909, the plaintiffs brought an action to
recover from the defendants their share of the
expenses of the hospital up to March 31,
1909 : — Held, first, that the notice was invalid
to determine the first and third agreement.s,
which w'ere still valid and subsisting ; and
secondly, that the third agreement constituted
an agreement adjusting the liabilities of the
parties within section 62 of the Local Govern-
ment Act, 1888, so that the defendants were
not entitled to resort to arbitration under that
section; and held, that the plaintiffs were
entitled to judgment as asked, and that, as
the delay in commencing proceedings was
excusable, a mandamus must go to enforce
the levying of a rate to satisfy the judgment.
Reg. V. Rotherham Local Board (27 L. J.
Q.B. 156; 8 E. & B. 906) and Worthington v.
Hulton (35 L. J. Q.B. 61; L. E. 1 Q.B. 63)
applied. lb.
3. Misapplication of.
See also Vol. IX. 525, 2061.
Expenses — Sanction of Local Government
Board to Expenditure in Connection with Royal
Coronation — Injunction.] — (Jn April IS, 1911,
the Local Government Board, in exercise of
their powers under the Local Authorities
(Expenses) Act, 1887, s. 3, made a general
order sanctioning any reasonable expenses to
be incurred by a local authority in connection
with the public local celebration of the
Coronation of King George 5. In May, 1911,
the defendants resolved to expend a sum not
exceeding a certain amount upon the
Coronation festivities in their district. On
June 20, 1911, an action was commenced by
the Attorney-General on the relation of two
ratepayers seeking to restrain the defendants
from making any order for payment out of
the general district rates of this or any other
sum towards the local Coronation festivities.
On motion for an interim injunction in similar
terms, it was contended that the only effect
of the general order of the Local Government
Board was to prevent the district auditor dis-
allowing these expenses, and that notwith-
standing that order the expenditure was
illegal as being for purposes not authorised
by statute : — Held, without deciding this
point, that it was not a case in which the
Court would interfere by injunction before
the trial of the action. Att.-Geyi. v.
Merthyr Tydfil Union (69 L. J. Ch. 299;
[1900] 1 Ch. 516) applied. Att.-Gen. v. East
Barnet Urban Council, 9 L. G. E. 913;
75 J. P. 484— Neville, J.
4. Proceedings.
Sec alw Vol. IX. 526, 2061.
Invalid Rate — Seizure under Distress —
Liability of Rate Collector and County
935
LOCAL GOVEKNMENT.
936
Council.] — Where a county council issues a
warrant to a rate collector authorising and
directing him to levy a rate which is invalid,
and the rate collector, in pursuance of the
warrant, levies the rate by distress in such
manner that the distress would have been
lawful had the rate been valid, the county
council, as well as the rate collector, is liable
to an action for damages in respect of the
illegal seizure. Held, however, on the facts
of the particular case, that the county council
was not liable as no evidence was given of
the issue of the warrant by them. O'Neill v.
Drohan and Waterford County Council, [1914]
2 Ir. E. 495— C. A.'
IX. LIABILITY OF AUTHORITIES.
1. Action.
a. Generally.
Action against Public Body — Naming Special
Defendants.] — When misconduct in the per-
formance of their duties is alleged against a
public body, and it becomes necessary to take
legal proceedings against them, the individual
members who are principally responsible ought
to be made special defendants for the purpose
of visiting them with the costs of the action.
O'Sliea V. Cork Rural Council, [1914]
1 Ir. E. 16— M.E.
b. Negligence.
See also Vol. IX. 528, 2064.
Damage by Flooding — Sewage Discharged
into Burn — Overflow — Liability.] — Held, that
the respondents, as the road and drainage
authority of Edinburgh, were not protected by
the provisions of the Edinburgh Corporation
Act, 1900, from liability to the appellant for
the flooding of his market garden by reason
of an insufficient culvert for carrying away
drainage. Hanley v. Edinburgh Corporation,
[1913] A.C. 488; [1913] S. C. (H.L.) 27;
77 J. P. 233; 11 L. G. E. 766; 57 S. J. 460;
29 T. L. E. 404— H.L. (Sc.)
Fire-Plug Notice — Erroneous Statement as
to Position of Fire Plug — Delay in Finding
Fire Plug — Consequent Damage by Fire —
Liability of Urban Council — Statutory Duty —
Misfeasance.]— The Public Health Act, 1875,
8. 66, requires every urban authority to provide
fire plugs, and to " paint or mark on the
buildings and walls within the streets words
or marks near to such fire-plugs to denote the
situation thereof." The defendants, an urban
council, provided a fire plug and affixed to
premises in the street a plate which purported
to indicate the position of the fire plug, but
did not in fact indicate its true position. The
fire plug was covered with earth as the result
of repairs to the street, but for this the defen-
dants were not responsible, as the street was
not vested in them and they had not done the
repairs. A fire having broken out in premises
of the plaintiffs fronting on the street, the fire
brigade, owing to the plate being incorrect,
were prevented for some time from finding
the fire plug, and the premises were more
seriously damaged than would otherwise have
been the case : — Held, that the defendants in
putting up the incorrect plate had been guilty
of a breach of their statutory duty under the
above section in the nature of a misfeasance,
and that they were liable to the plaintiffs for
the damage thereby done to the premises.
Observations of James, L.J., in Glossop v.
Heston and Isleivorth Local Board (49 L. J.
Ch. 89; 12 Ch. D. 102) held inapplicable.
Dawson v. Bingley Urban Council, 80 L. J.
K.B. 842; [1911] 2 K.B. 149; 104 L. T. 659;
75 J. P. 289; 9 L. G. E. 502; 55 S. J. 346;
27 T. L. E. 308— C. A.
Sewage Disposal — Liability of District
Council for Negligence of Contractor — Terms
of Contract — Emptying of Cesspools — Nuisance
from Contents of Cesspool Deposited on Land
by Contractor.] — An urban district council
having undertaken, under section 42 of the
Public Health Act, 1875, to empty the
cesspools in a part of their district, employed
a contractor for the purpose of emptying the
cesspools, he using for that purpose the
council's sewage van, but the disposal of the
contents was left to the contractor, no express
provision being made in the contract with
reference thereto. The contractor, without the
council's authority, deposited the contents of
certain cesspools over lands in the neighbour-
hood without the permission of the landowners.
In an action by the landowners claiming an
injunction and damages, — Held, that the duty
of the disposal of the sewage under the terms
of the contract remained with the council,
and that they were responsible for the
wrongful acts of the contractor. Robinson v.
Beaconsfield Urban Council, 80 L. J. Ch. 647 ;
[1911] 2 Ch. 188 ; 105 L. T. 121 ; 75 J. P. 353 ;
9 L. G. E. 789; 27 T. L. E. 478— C.A.
Per Buckley, L.J. : Even if the contract had
provided for the disposal of the sewage by the
contractor, the council would have been equally
liable on the ground that they were under a
statutory duty to dispose of the sewage and
could not escape from responsibility by delegat-
ing that duty to a contractor. lb.
Efiluent from Sewage Disposal Works —
Liability of Persons Controlling Works
although Sewer Vested in Local Authority.] —
The defendants were the lessees of a number
of cottages which drained into sewage disposal
works, of which a firm of builders were the
lessees. Sewage escaped from the disposal
works into a stream which flowed through a
farm belonging to the plaintiff, and injured
cattle and pasturage belonging to him. In
an action by the plaintiff for damages and an
injunction evidence was given that at the time
when the damage was caused the defendants
were in control of the sewage disposal works.
The local authority had passed the plans for
the sewers " subject to the drainage being
carried out to the satisfaction of the surveyor,"
but there was no evidence that the surveyor
had ever expressed such satisfaction. The
County Court Judge gave judgment for the
plaintiff for 50Z. : — Held, that, even assuming
that the sewage disposal works and the pipes
connected therewith were sewers vested in the
937
LOCAL GOVERNMENT— LUNATIC.
938
local authority under section 13 of the Public
Health Act, 1875, there being evidence upon
which the learned Judge could come to the
conclusion that it was by the act or default
of the defendants themselves that the sewage
was in fact being discharged into the brook,
his decision could not be interfered with.
Titterton v. Kingsbury Collieries, 104 L. T.
569 ; 75 J. P. 295 ; 9 l! G. E. 405— D.
2. Compensation for Damages.
See also Vol. IX. 548, 2075.
Construction of Sever in Street — Interference
with Access to Premises.] — Where a person
sustains damage by reason of an act done by
a local authority in the exercise of the powers
conferred upon them by the Public Health
Act, 1875, and done reasonably and without
negligence, that person is entitled to compensa-
tion under section 308 of the statute, notwith-
standing that the act so done is lawful, if the
act is one which, but for their statutory
powers, would have rendered the local
authority liable to an action at law. Liyigke
V. Christchurch Corporation, 82 L. J. K.B. 37 ;
[1912] 3 K.B. .595 ; 107 L. T. 476 ; 76 J. P.
433: 10 L. G. R. 773; 56 S. J. 735;
28 T. L. E. 536— C. A.
A person is not disentitled to compensation
under section 308 of the Public Health Act,
1875, by reason only that the state of matters
causing him damage is temporary and during
the construction of the works, provided it con-
tinues for more than a merely negligible
time. lb.
The defendants, a local authority, in exercise
of their powers under the Public Health Act,
1875, laid down a sewer in a public street in
which the plaintiff occupied premises consisting
of a house and a shop in which she carried on
the business of a furniture dealer. In the
course of the work the defendants reasonably
and without negligence opened the pavement
and the roadway in front of the plaintiff's
premises and threw up a heap of earth, thus
obstructing the access to her house and shop
and interfering with her business, and this
state of matters continued for about three
months : — Held, that the plaintiff was entitled
to recover compensation from the defendants
under section 308 of the Public Health Act,
1875, for the damage she liad sustained by
these acts. lb.
Herring v. Metropolitan Board of Works
(34 L. J. M.C. 224; 19 C. B. (n.s.) 510) dis-
tinguished by Yaughan Williams. L.J., dis-
approved by Fletcher Moulton, L.J., and held
not to be applicable by Buckley, L.J. 7b.
LOCOMOTIVE.
See WAY.
LODGER.
Franchise.] — See Election Law.
LODGING HOUSE.
By-laws as to.] — See Metropolis.
LONDON.
See METEOPOLIS.
LORDS, HOUSE OF.
See APPEAL; PAELIAMEXT.
LOTTERY.
See GAMING AXD WAGEEIXG.
LUGGAGE.
5ee CAEEIEE.
LUNATIC.
I. Lunatic so Found, 938.
II. Lunatic not so Found, 939.
III. Mentally Defective Person. 943.
IV. Pauper Lunatics — See Poor Law
(Pauper Lunatics).
V. Insanity in Relation to Crime — See
Criminal Law.
I. LUNATIC SO FOUND.
See also Vol. IX. 560, 2080.
Committee of Estate — Application by Person
Found Incapable of Managing his Affairs to
Attend Proceedings.]— In 1906 Lord T. was
939
LUNATIC.
940
found to be a person incapable of managing '
his affairs, but capable of managing himself.
A committee of the estate was appointed, and
the person who in default of issue male to
Lord T. was the next heir to the title and also
tenant for life in remainder of the settled
estates was given liberty to attend generally
upon the proceedings. Since the management
of the estate was taken over by the committee
the income received by Lord T. had increased
from a nominal sum to about 800i. per annum.
In 1911 Lord T. and his wife applied that
they or one of them might be at liberty to
attend the future proceedings in the matter
generally at the expense of the estate : —
HeJd, that the application must be refused.
Toicnshend (Marquess), In re, 28 T. L. E. 12
— C.A.
Power to Bar Lunatic's Estate Tail —
Jurisdiction of Master — Re-settlement of Pro-
ceeds of Sale.^ — Where a lunatic is tenant in
tail of land which it is desired to sell, the sale
cannot be carried out merely under clause (a)
of section 120 of the Lunacy Act, 1890, which
authorises the sale of a lunatic's property, but
it is competent for the Judge in Lunacy to
order the committee under clause (/) to bar
the entail with a view to sale, as the statutory
right to bar an entail conferred by the Fines
and Recoveries Act, 18.33. is a " power vested
in the lunatic for his own benefit." The order
may be made by a Master in Lunacy under
section 27 of the Lunacy Act, 1891, which
enables the Master to exercise the jurisdiction
of a Judge in Lunacy as regards administra-
tion and management. Where the sale has
taken place it should in ordinary cases be
referred to the Judge to make a re-settlement
of the proceeds of sale not applied under the
powers of the Act, so that they should remain
subject to trusts as if no disposition had been
made and the interests of remaindermen
should not be defeated. E. D. S., In re,
83 L. J. Ch. 505: [19141 1 Ch. 618; 110 L. T.
631; 58 S. J. 338— C.A.
Entry on Lands of Lunatics — New Letting.]
— The doctrine applicable to entry on the lands
of a minor applies also to entry on the lands
of a lunatic. A person entering on the lands of
a lunatic, with notice of the lunacy and of
the rights of the lunatic, becomes a bailiff in
respect of the lunatic's estate in the lands, and
where the lands are held by the lunatic under
a contract of tenancy, and a new tenancy
is subsequently made to the person so entering,
such new letting will be deemed a graft on
the old tenancv. Smyth v. Byrne, [1914]
1 Ir. R. 5a-C.A.
II. LUNATIC NOT SO FOUND.
See also Vol. IX. 636, 2084.
Appointment of Person to Act as Committee
— Two Sisters of Unsound Mind — Separate
Applications — Duplicate Evidence — Consolida-
tion of Proceeding — Costs. ^ — Where two sisters
are alleged to be of unsound mind, and appli-
cation is made for the appointment of a
receiver of their property and for directions
for their maintenance under section 116 of the
Lunacy Act, 1890, separate summonses are
properly issued in the case of each sister ; but
if the evidence on which the applications are
grounded is similar, it is improper to file
separate affidavits with separate undertakings
of the proposed receiver in each case, and
only such costs should be allowed as if there
had been only one set of affidavits and one
undertaking in the two cases. Morris, In re,
81 L. J. Ch. 451 ; [1912] 1 Ch. 730; 106 L. T.
553— C.A.
Receiver Appointed to Exercise Powers of
Committee — Solicitor Appointed by Receiver —
Liability for Costs Incurred — Statute of
Limitations.] — In 1900 an order was made
under section 116 of the Lunacy Act, 1890,
appointing F. G. (hereinafter called the
receiver) to exercise certain of the powers of
a committee of the estate of a person of
unsound mind not so found. The receiver
employed a solicitor, and certain costs were
incurred in 1904, 1905, and 1906 in respect of
the lunatic's estate. Some of these costs were
directed to be taxed and paid, and some had
not been taxed, but no payment had been
made as to any of them. The solicitor died
in 1906, and certain moneys having lately
fallen into the lunatic's estate, his executor
applied in lunacy for payment of the unpaid
costs due to him. It was objected that the
solicitor's proper remedy was to sue the
receiver personally, and that the executor was
not entitled to receive out of the lunatic's
estate any costs barred by the Statute of
Limitations as against the receiver : — Held,
that the lunatic and not the receiver was the
solicitor's client, and it was for the. Judge in
Lunacy to say what ought to be done. Even
if the Statute of Limitations could be pleaded
on behalf of the lunatic, this was not a case
in which the Judge should allow it to be
pleaded. The costs must therefore be paid out
of the lunatic's estate. PJumpton v. Burkin-
show (77 L. J. K.B. 961; ri90S] 2 K.B. 572)
followed. E. G., In re, 83 L. J. Ch. 586;
[1914] 1 Ch. 927 ; 111 L. T. 95 ; 58 S. J. 497
—C.A.
Receiver — Purchase of Freehold Reversion
of Lease under Order of Master in Lunacy —
Conversion — Realty or Personalty.] — It is
within the power of the Court in Lunacy to
alter the nature and consequent devolution of
the estate of a lunatic. Where a receiver of
a lunatic's estate, acting on an order of the
Master in Lunacy, purchases the freehold
reversion of leasehold premises belonging to
the lunatic the leasehold merges in the free-
hold reversion, and passes, on the death of the
lunatic intestate, to the heir-at-law of the
lunatic. Searle, In re : Ryder v. Bond,
81 L. J. Ch. 751 ; [1912] 2 Ch. 365 ; 106 L. T.
1005; 56 S. J. 613— Joyce, J.
Alleged Lunatic — Detention in Workhouse —
Order of Relieving Officer for Temporary
Detention — No Order of Justice — Certificate of
Medical Officer — Further Detention — No Want
of Good Faith or Reasonable Care — Action
against Workhouse Master — Stay of Action —
Legality of Further Detention.^ — A relieving
oflicer, acting under section 20 of the Lunacy
941
LUNATIC.
942
Act, 1890, removed the plaintiff as an alleged
lunatic to a workhouse of which the defendant
was the master, and she was received into it
under an order of the relieving officer which
required the defendant to receive and detain
her in the workhouse for a period of three
(lays. During that period she was visited and
examined hy a Justice, who made no order
under section 13 or otherwise in regard to her.
Tiie medical officer of the w^orkhouse, however,
during that period made a certificate in
writing under section 24 for the detention of
the plaintiff for fourteen days from its date.
The plaintiff was detained in the workhouse
for a further period of nearly six days beyond
the first three days, and was then discharged.
The plaintiff brought an action against the
defendant for false imprisonment, alleging that
her detention for the further period was
unauthorised, as no order of a Justice had been
made in regard to her : — Held, that, assum-
ing that, on the true construction of the Act,
the further detention was unauthorised in the
absence of a Justice's order, yet in the circum-
stances, and more particularly having regard
to the certificate of the medical officer purport-
ing to authorise the further detention, it could
not be said that the defendant, in detaining
the plaintiff, had acted otherwise than in good
faith and with reasonable care, and therefore
that the action should be stayed under sec-
tion 330 of the Act. Shackleton v. Swift,
82 L. J. K.B. 607; [1913] 2 K.B. 304;
108 L. T. 400; 77 J. P. 241; 11 L. G. R.
462— C. A.
Semhle, that the further detention was
authorised by the certificate of the medical
officer and that a Justice's order was unneces-
sary. Ih.
Necessaries — AdYances by Bank to Pro-
cure.]— A person lending money to provide
necessaries for a lunatic has an equitable
right to stand in the shoes of the lunatic's
creditors who have been paid out of the
moneys lent. Beavan, In re; Davies, Banks d
Co. V. Beavan, 81 L. J. Ch. 113; [1912] 1 Ch.
196; 105 L. T. 784— Neville, J.
A bank advanced money to a person who
had taken upon himself the management of
the affairs of a lunatic not so found. The
money being applied for the necessary main-
tenance of the lunatic and his family and for
the protection of his estate, — Held, that the
bank could prove against the lunatic's estate
for the money advanced, but not for interest
or bank charges. lb.
Will made before Lunacy — Specific Bequest
of Chattels — Chattels Sold under Order in
Lunacy — Recovery of Sanity shortly before
Death — Ademption.] — P., who was possessed
of considerable estate, by his will dated
April 4, 1910, after bequeathing all his motor
cars with their accessories to the defendant
M., gave the residue of his estate to a charity,
and appointed the plaintiff and the defendant
M. his executors. In May, 1910, the testator
became of unsound mind, and on an order
of two magistrates was placed in a private
asylum. On June 14, 1910, the Master in
Lunacy made an order appointing a receiver
of the income of the lunatic's estate, and
authorised the receiver to sell the motor cars
with their accessories. Under this order the
receiver sold the motor cars and accessories
and paid the proceeds into Court to a separate
account in the lunacy, and they were invested
in 1,014L Consols. On October 14, 1910, a
doctor certified that P. had recovered his
sanity; but he was very ill, and, without leav-
ing the asylum or resuming control of his
aliairs, he died at the asylum on November 5.
The executors proved the will, and this sum-
mons was taken out to determine whether the
specific bequest of the motor cars and acces-
sories to the defendant M. was adeemed by
the sale of those chattels under the order in
lunacy so that the proceeds passed to the
residuary legatee. The receiver did not pass
his final accounts until December, 1910 : —
Held, that these chattels were sold under the
order made under section 123 of the Lunacy
Act, 1890, and that that section applied; there
was no evidence that the testator, on recover-
ing his sanity, elected to take his property
into his own possession and management, and
therefore the operation of the section continued
until after his death, and that the specific
legatee is entitled to the sum of Consols which
represented the proceeds of sale of the chattels
in question. Palmer, hi re; Thomas v.
Marsh, [1911] W. N. 171— Neville, J.
Order to Divide Surplus Income amongst
Daughters — Death of Lunatic — Funds in
Hands of Committee — Income Accrued but
not Paid before Death — Claim by Daughters
— Residuary Estate.] — Under orders made in
Lunacy the net surplus income of the estate
of a lunatic so found was divided by the com-
mittee between the daughters of the lunatic.
Upon the death of the lunatic there was in
the hands of the committee a certain sum
representing surplus income which had not
been distributed amongst the daughters.
There was also a sum received by the
administrator with the will annexed of the
lunatic in respect of income accruing during
the life of the lunatic, but not paid till after
her death. The daughters claimed these sums
as due to them under the orders in Lunacy : —
Held, that the orders in Lunacy came to an
end on the death of the lunatic, and that both
these sums formed part of the capital of the
residuary estate of the testatrix. Way, In re
(30 L. J. Ch. 815; 3 De G. F. & J. 175), and
Marmans Trusts, In re (8 Ch. D. 256),
followed. Bennett, In re; Greenwood v.
Bennett, 82 L. J. Ch. 506; [1913] 2 Ch. 318;
109 L. T. 302— Warrington, J.
Capacity — Settled Account — Expert Wit-
ness— Function of the Court.] — Where a
married woman carries on a trade or business,
and an action is brought by her next friend
for an account against her trustee, who had
managed her property, and her trustee, in
defending the action, denied that she was of
unsound mind and pleaded settled account,
and the medical evidence as to her state of
mind was conflicting, — Held, that it is the
function of the Court in such a case to form
an independent opinion with regard to the
technical aspect. Riclnnoud v. Riclimond,
111 L. T. 273; 58 S. J. 784— Neville, J.
943
LUNATIC— MALICIOUS PEOCEDUKE.
944
Arrears of Maintenance in Asylum.] —
Arrears of maintenance of a lunatic in an
asylum are an ordinary debt of the lunatic,
to which the Statute of Limitations applies.
Murphy, In re; Prendergast v. Murphy,
[1913] 1 Ir. K. 504— Barton, J.
III. MENTALLY DEFECTIVE PERSON.
Petition for Order to Send to Institution-
Petition by Motlier— " The parent "—" With-
out visible means of support " — Jurisdiction as
to Costs.] — Either parent of a defective person
may, under section 2, sub-section 1 of the
Mental Deficiency Act, 1913, present a petition
for an order that the defective be sent to an
institution ; but where the mother presents the
petition and the father is alive, his written
consent must, under section 6, be produced
unless it is proved that such consent is un-
reasonably withheld, or that he cannot be
found. A defective is not " without visible
means of support " within the meaning of
section 2, sub-section 1 (h), merely by reason
of the fact that he has no property of his own,
and cannot earn his own living, and has no
legal right to compel his parents to maintain
him in their home. Where a judicial authority
makes an order under section 2, it has juris-
diction, in a proper case, to order the costs to
be paid by the local authority. Rex v. Rad-
cliffe, 84 L. J. K.B. 2196; [1915] 3 K.B. 418;
13 L. G. R. 1192; 31 T. L. R. 610— D.
Conviction — Residence — Authority Liable for
Care of Defective.] — H. L., a defective within
the meaning of the Mental Deficiency Act,
1913, was found guilty of an offence com-
mitted in September, 1914, within the area
of the London County Council. The county
in which H. L., had she been a pauper, would
have been deemed to have acquired a settle-
ment within the meaning of the law relating
to the poor was Kent. Subsequentl_y to 1910
H. L. was in the care of a rescue society, who
found situations for her, but she never retained
any situation for more than a short time. In
January and May, 1912, situations were found
for her in London. Evidence was also given
that in April, 1914, she was in service in
London, that from April till July, 1914, she
was living in London, and that after that
date she was seen several times in London :
— Held, that these facts did not constitute a
case of doubt within the meaning of section 44,
sub-section 4 of the Mental Deficiency Act,
1913, and that, therefore, H. L.'s residence
must, by virtue of section 44, sub-section 1,
be presumed to be within the County of
London. Kent County Council v. London
County Council, 84 L. J. K.B. 1781; 79 J. P.
486 ; 13 L. G. R. 1070-D.
MAINTENANCE.
Of Infants.] — See Infant.
Of Paupers.] — See Poor Law.
Of Suits.] — See Champerty.
MALICIOUS INJURY.
See CRIMINAL LAW.
MAGISTRATE.
See JUSTICE OF THE PEACE.
MALICIOUS PROCEDURE
AND
FALSE IMPRISONMENT.
A. False Imprisonment, 944.
B. Malicious Procedure, 945.
A. FALSE IMPRISONMENT.
See also Vol. IX. 702, 2093.
Person Given in Charge for a Particular
Felony — Failure of that Charge — Proof of
Committal of other Felonies — Reasonable and
Probable Cause for Suspicion — Whether suffi-
cient Justification for Imprisonment.] — In an
action for false imprisonment the defendants,
in order to justify the imprisonment, must
prove that the particular felony for which the
plaintiff was imprisoned has in fact been com-
mitted ; and if that particular felony has not
been committed, it is no justification for the
defendants to prove that at the time of the
plaintiff's arrest other felonies had been com-
mitted, and that they had reasonable and
probable cause for suspecting the plaintiff of
having committed them. Walters v. Smith,
83 L. J. K.B. 335; [1914] 1 K.B. 595;
110 L. T. 345; 78 J. P. 118; 58 S. J. 186;
30 T. L. R. 1.58— Sir Rufus Isaacs, C.J.
Detention in Coal Mine — Contract to Work
— Breach of Contract by Workman — Right to
be Conveyed to the Surface.] — It is not false
imprisonment to hold a man to conditions
which he has voluntarily accepted. A work-
man went down into a coal mine upon the
terms that he should work for a certain fixed
period, and then be conveyed to the surface by
machinery provided by the employers. Before
the termination of his period of work the
workman, in breach of his contract, refused to
continue his work, and came to the bottom of
the shaft and demanded to be conveyed to the
surface at once. The machinery was available,
but the employers refused to convey the work-
man to the surface immediately, and detained
945
MALICIOUS PROCEDUKE— MANDAMUS.
946
him in the mine for a certain time : — Held,
that an action for false imprisonment would
not lie against the employers. Herd v.
Weardale Steel, Coal and Coke Co., 84 L. J.
K.B. 121; [1915] A.C. 67; 111 L. T. 660;
30 T. L. R. 620— H.L. (E.)
There is nothing in the Coal Mines Regula-
tion Act, 1887, which gives a minor a right
to use the winding-up machinery whenever he
pleases. 7b.
Decision of the Court of Appeal (82 L. .7.
K.B. 1354; [1913] 3 K.B. 771) affirmed. lb.
B. MALICIOUS PROCEDURE.
See also Vol. IX. 714, 2095.
Notice to Abate Nuisance — Summons before
Justices — Dismissal — Criminal Offence —
Malice — Absence of Reasonable and Probable
Cause — Injury to Reputation or Liberty.] —
The plaintiff was the occupier of a house within
the Romford Urban District, and the defendant
Bailey, as sanitary inspector thereof, served
on the plaintiff a sanitary notice, under
section 94 of the Public Health Act, 1875,
requiring him to abate a nuisance in the house.
With this notice the plaintiff refused to
comply, alleging that it was the duty of his
landlord to abate the nuisance. The defen-
dant Bailey, on the instructions of the
defendant council, then preferred a complaint
before the Justices under section 95 of the
Act, but the Justices dismissed the summons
with costs. At the trial of an action for
malicious prosecution brought by the plaintiff
against the defendants, the Judge held on the
evidence that the defendants had no reason-
able and probable cause for preferring the
complaint, whilst the jury found that the
defendants had acted maliciously in so doing,
that the plaintiff's reputation was thereby
injured, and they awarded him 250Z. damages
as against the defendant council. On the
case coming on for further consideration,
Horridge, J., held that the co-defendants
were joint tortfeasors, and that there must be
judgment for 250Z. against both defendants : —
Held, on appeal, that a complaint under
section 95 of the Public Health Act, 1875, for
non-compliance with a notice to abate a
nuisance, is not in itself a proceeding of such
a nature as is calculated to involve damage
to the fair fame, or liberty through danger of
imprisonment, of the person against whom the
complaint is made, sufficient to support an
action by him for malicious prosecution, even
if such complaint has been preferred malici-
ously and without reasonable and probable
cause, and that consequently judgment must
be entered for the defendants. Rayson v.
South London Tramways (62 L. J. Q.B. 593 ;
[1893] 2 Q.B. 304) distinguished. Wiffen v.
Bailey, 84 L. J. K.B. 688; [1915] 1 K.B. 600;
112 L. T. 274 ; 79 J. P. 145 ; 13 L. G. R. 121 ;
69 S. J. 176; 31 T. L. R. 64— C. A.
Decision of Horridge, J. (83 L. J. K.B. 791 ;
[1914] 2 K.B. 5), reversed. lb.
Absence of Reasonable and Probable Cause
— No Evidence — Reasonable Care by Defen-
dants to Inform themselves — Leaving Ques-
tion to Jury.]— The plaintiff was a workman
at a weekly wage in the employment of the
defendants, and they were in the habit of
buying skins by measurement from one Miller,
by whom one Simmons was employed as
manager. Miller ceased to employ Simmons,
and the latter informed the defendants that
he had been bribing the plaintiff to pass skins
as of larger measurement and better quality
than they really were, and that the money
was obtained by an account being kept in
Miller's books in fictitious names, and cheques
being drawn in favour of these fictitious
payees and cashed by Miller. Simmons also
stated that the plaintiff used to go to Miller's
house to arrange these matters, and he pro-
duced a letter in support of this statement.
The plaintiff, on being sent for, denied
Simmon's allegations, but a large proportion
of the skins which should have been checked
by the plaintiff were found to be wrongly
marked. The defendants prosecuted Miller
and the plaintiff, but Miller was acquitted,
and the defendants then offered no evidence
against the plaintiff. In an action by the
plaintiff against the defendants for malicious
prosecution the plaintiff put in the depositions,
which shewed that the defendants had acted
on the above information. The Judge declined
to ask the jury whether the defendants took
reasonable care to inform themselves of the
facts and whether they honestly believed in
the charge, and he dismissed the action on the
ground that there was no evidence of the
absence of reasonable and probable cause : —
Held, that in the circumstances the Judge
was right in refusing to leave the above
questions to the jury, inasmuch as there was
no evidence of the defendants not having
made proper enquiries, and that there was no
evidence of the absence of reasonable and
probable cause, and therefore the Judge's
decision must be affirmed. Bradshaio v.
Waterlow <{■ Sons, Lim., [1915] 3 K.B. 527;
31 T. L. R. 556— C.A.
MANDAMUS.
Right to — Specific Legal Right — Clause In-
serted in Act of Parliament for Benefit of
Applicant — By-law not in Accordance with
Statute.] — In a bill promoted in Parliament
by a corporation for the acquisition of certain
tramways a clause was inserted at the instance
and for the benefit of an insurance company
requiring the corporation to make by-laws
prescribing the distance at which carriages
using the tramways should be allowed to
follow one after the other. The company,
however, was not mentioned in the Act : —
Held (Avory, J., doubting), that the insur-
ance company, although they were not
mentioned in the Act, had such an interest in
regard to the matter as entitled them to apply
for a mandamus ref|uiring the corporation to
comply witli the statute and to make by-laws
specifying the distance at which one tramcar
siiould follow anotlier. Rex v. Manchester
947
MANDA:\IUS— MAKINE INSURANCE.
948
Corporation : Wiseman. Ex parte, 80 L. J.
K.B. 263: [1911] 1 K.B. 560; 104 L. T. 54;
75 J. P. 73; 9 L. G. R. 129— D.
Alternative Remedy — Employment Agency
— Whether Mandamus Lies to London County
Council to Hear Application for Licence.] —
Whether a mandamus will lie to the London
County Council to hear and determine an
application for a licence to carry on an
employment agency, qucere. As section 22,
sub-section 5 of the London County Council
(General Powers) Act. 1910, provides a
remedy by appeal in the case of a person
aggrieved by the refusal of the London
County Council to grant a licence for an
employment agency, the Court discharged a
rule which had been obtained for a mandamus
requiring the Council to hear an application
for an employment agency licence. Rex v.
London County Council; Thornton, Ex parte,
27 T. L. E. 422— D.
Income Tax Commissioners — Refusal to
Hear Expert Evidence.] — The owner and
occupier of licensed premises appealed to the
Income Tax Commissioners against the assess-
ment of his premises. He attended and gave
evidence before the Commissioners, and his
solicitor then stated that he wished to call
an expert valuer. The Commissioners said
they already had all the facts before them
and did not think any further evidence
would assist them, and they declined to hear
the expert. A rule nisi was then obtained
calling upon the Commissioners to shew
cause why they should not hear and deter-
mine the appeal according to law : — Held,
that mandamus would not lie for the purpose
of appealing from the Commissioners' deci-
sion as to the non-necessity of hearing the
evidence tendered, and that the rule should
therefore be discharged. Rex v. Offlow Income
Tax Commissioners, 27 T. L. R. 358— D.
To Repair Dangerous Bridge — Disused
Canal.] — A canal company, the predecessors
in title of the defendants, acting under powers
conferred upon them by a private Act of Par-
liament, made a canal, and in so doing cut
through an old highway, which they carried
by a new bridge over the canal. The canal
under the bridge was no longer used for navi-
gation, and the bridge, owing to its steepness
and narrowness, was very inconvenient for the
traffic of the district. The bridge having fallen
into disrepair and become dangerous, the
Court granted a mandamus to compel the canal
company to repair the bridge. Rex v. Wilts and
Berks Canal Co.; Berkshire County Council,
Ex parte, 82 L. J. K.B. 3; [1912] 3 K.B. 623;
107 L. T. 765; 77 J. P. 24; 10 L. G. R. 1033
— D.
Variation between Writ and Order.] —
Where the command in a writ of mandamus
varies from that contained in the order allow-
ing the issue of such writ, it is a matter of
course to quash the writ so varying. There is
no jurisdiction to amend a writ of mandamus
that varies as aforesaid, unless the order
giving leave to issue it is similarly amended
either prior to or contemporaneously with the
amendment of the writ. Where a mandamus
commands several things the prosecutor must
shew that he is entitled to enforce every one
of such commands ; and, if he fails to establish
a right to enforce any one of such commands,
a peremptory mandamus cannot go. Rex v.
Cork County Council, [1911] 2 Ir. R. 206—
K.B. D.
Irregular Affidavit — Other Adequate
Remedy.] — A rule had been granted calling
upon the Master of the Crown Office to shew
cause why he should not summon a grand jury
of Middlesex in the King's Bench Division
under the Middlesex Grand Jury Act, 1872 : —
Held, that the rule must be discharged on the
ground that the affidavit on which it was
granted was irregular and because there was
another remedy open to the applicant. Rex v.
Croivn Office Master, 29 T. L. R. 427— D.
No Affidavit Stating Name of Prosecutor.]
— On an application for a mandamus, rule 65 of
the Crown Office Rules (which provides that no
order for the issuing of any writ of viand amus
shall be granted unless, at the time of moving,
an affidavit be produced, made by the applicant
himself or his solicitor, stating at whose
instance such motion is made as prosecutor)
must be strictly complied w"ith. Rex v.
Andover Rural "^ Council. 77 .7. P. 296;
11 L. G. R. 996; 29 T. L. R. 419— per
Avory, J.
Practice — Motion on Last Day of Term.] —
The Court will not hear a motion for a
mandamus on the last day of term. McBean,
Ex parte, 27 T. L. R. 401— D.
MANSLAUGHTER.
See CRIMINAL LAW.
MAPS.
See EVIDENCE.
MARGARINE.
See LOCAL GOVERNMENT JURISDIC-
TION—FOOD AND DRINK.
MARINE INSURANCE.
See SHIPPING (INSURANCE).
949
MARINER— MARKETS AND FAIRS.
950
MARINER.
See SHIPPING.
MARKET GARDENS.
See LANDLOED AND TENANT.
MARKETS AND FAIRS.
A. Generally, 949.
B. Disturbance of Market, 950.
C. Tolls, 953.
D. Hawker, 954.
E. Rating Markets and Tolls — See Rates
AND Rating.
A. GENERALLY.
See also Vol. IX. 759. •2102.
Franchise — Market Days — Lost Grant —
User of Streets — Obstruction — Legal Origin —
Injunction — Tolls — Reasonableness — Pay-
ment of Tolls by Buyers.] — In 1682 a charter
was granted by King Charles 2 for the hold-
ing of a market on Thursday and Saturday in
each week in or near Spittle Square. The
defendant was the lessee of the market lands
and premises and of the franchise rights, and
had for many years held markets and taken
tolls in the market place and certain adjoining
streets on every day of the week except Sunday.
In an action brought by the Attorney-General
at the relation of the City Corporation, — Held,
first, that the defendant was not entitled to
hold markets or take tolls on any days of the
week other than Thursday and Saturday,
seeing that a lost grant from the Crown to
hold markets on these other days of the week
could not be presumed in view of the decision
of the Court of Appeal in .itt.-Gen. v. Horner
{No. 1) (54 L. J. Q.B. 227; 14 Q.B. D. 245);
secondly, that except on Thursdays and
Saturdays the defendant had no right to use
or authorise the use of the streets in or about
the market for the sale of goods, and must be
restrained from so doing by injunction ; thirdly,
that the tolls charged by the defendant need
not be uniform, provided the amount charged
was in all cases reasonable; and fourthly, that
at common law tolls were payable by the
buyers and not by the sellers, and that, apart
from some contractual arrangement under
which any individual seller agreed with the
defendant to pay the tolls demandable from
the buyer, the defendant was not entitled to
obtain payment of tolls from the sellers instead
of the buvers, and must be restrained from so
doing. Att.-Gen. v. Horner (No. 2), 82 L. J.
Ch. 339; [1913] 2 Ch. 140; 108 L. T. 609;
77 J. P. 257; 11 L. G. R. 784; 57 S. J. 498;
29 T. L. R. 451— C.A.
Nature and limits of the presumption of a
lost grant or other legal origin of a long-
established usage considered. lb.
Decision of Warrington, J., affirmed except
in so far as he held that an arrangement by
sellers to pay the tolls in place of and on behalf
of the buyers could be inferred from the in-
variable practice of the market. lb.
Sale of Cattle — ProYision of Facilities for
Weighing.] — The respondents had the exclu-
sive use of a portion of the Chichester cattle
market as a cattle sale yard, such portion con-
sisting of a covered shed, inclosed from the
rest of the market. On a particular day there
was no weighbridge which could be used in
the respondents' portion of the yard, but there
was a weighbridge provided in the market by
the corporation, and any animal sold in the
respondents' sale yard could be weighed on the
market weighbridge on payment. The respon-
dents were summoned for selling cattle at a
mart, where cattle were periodically sold, with-
out providing facilities for weighing same as
required by the Markets and Fairs (Weighing
of Cattle) Acts, 1887 and 1891 -.—Held, that
the Acts only required weighing facilities to
be in or near the market, and as there were
weighing facilities close to the respondents'
premises the respondents had committed no
offence. Qucere, whether such an inclosure as
that occupied by the respondents, being within
a market, came within the Markets and
Fairs (Weighing of Cattle) Acts. 1887 and
1891. Knoii v. Strides. 109 L. T. 181 ; 77 J. P.
222; 11 L. G. R. 534; 23 Cox C.C. 505;
29 T. L. R. 41&— D.
Market Overt — Custom of City of London —
Sale in Auction Room.] — It is a question of
fact in each case whether premises in which
goods are sold constitute a " shop " within
the custom of market overt in the City of
London. A watch was sold in an auction
room which was on the first floor of a building
in the City of London. In the auction room,
sales, largely of unredeemed pledges, were
periodically held : — Held, on the facts, that
the auction room was not a " shop " and that
the sale of the watch there was not a sale in
market overt. Claiiton v. Le Roy, 81 L. J.
K.B. 49; [1911] 2 K.B. 1031; 104 L. T. 419;
75 J. P. 229; 27 T. L. R. 206— Scrutton, J.
Reversed on other grounds. See post, Trover.
B. DISTURBANCE OF MARKET.
See also Vol. IX. 765. 2104.
Disturbance — Prohibition against Sales —
Exception in Case of Sales " on any land or
in any building belonging" to a Seller or in
his Occupation.^ — By the Hailsham Cattle
Market Act, 1871, the plaintiffs were incor-
porated and empowered to carry on a market
for the sale of certain cattle and other live-
stock within the limits therein mentioned. By
section 2 of the Act the Markets and Fairs
Clauses Act, 1847, was incorporated with the
Act of 1871, except where expressly varied.
By section 42 of the Act every person who
951
MAEKETS AND FAIES.
952
Bhould on the days appointed for holding
markets sell or expose for sale at any place
within the market limits, " except on any land
or in any building belonging to him or in his
occupation," any animals in respect of which
tolls were by the Act authorised to be taken,
should forfeit and pay to the plaintiffs a sum
not exceeding 405. The defendant had
acquired land within the market limits, and
there erected buildings in which he held
auction sales of cattle and other livestock on
days other than market days. The defendant
or his clerks acted as auctioneers and sales-
men : — Held, that section 42 of the private
Act was an express variation of section 13 of
the Markets and Fairs Clauses Act, 1847, and
was alone applicable ; that upon the construc-
tion of the whole private Act the only pro-
tection given to the plaintiffs against sales
within the market limits was that contained
in section 42 thereof; and that, although, if
the plaintiffs' market had been an ancient
market by franchise the defendant's acts
would have been restrained as amounting to
a disturbance of the market, yet that these
acts came within the exception in section 42,
with the result that the defendant was
exempted not only from the penalty imposed
by the section, but also from the liability of
being restrained from doing them. Hailsham
Cattle Market Co. v. Tolman, 84 L. J. Ch.
607; [1915] 2 Ch. 1 ; 113 L. T. 254; 79 J. P.
420 ; 13 L. G. R. 926 ; 59 S. J. 493 ; 31 T. L. R.
401— C. A.
Decision of Sargant, J. (84 L. J. Ch. 299;
[1915] 1 Ch. 360), affirmed. lb.
Statutory exemptions are from any general
prohibition against the excepted acts that
would otherwise arise from the creation of a
statutory market, and not merely from the
penalties imposed by the Act and the prohibi-
tions implied in such penalties. Abergavenny
Improvement Commissioners v. Straker
(58 L. J. Ch. 717; 42 Ch. D. 83) followed.
Hailsham Cattle Market Co. v. Tolman,
84 L. J. Ch. 299; [1915] 1 Ch. 360; 79 J. P.
185 ; 13 L. G. R. 248 ; 59 S. J. 303 ; 31 T. L. R.
86 — Sargant, J.
Difference between Market Franchise at
Common Law and Statutory Markets.] — The
permissions given to statutory markets are not
subject to any vague overriding prohibition
arising from a monopoly ordinarily incident to
a grant of market rights or a franchise of
market at common law. lb.
Warehouse — Sale in "own shop."] — The
Southwark Market was originally founded by a
charter of Edward 6, granting the manor to
the Corporation of London with the right to
hold the market, and was confirmed by
29 Car. 2. c. 4. In 1754 the market had
become a nuisance to the traffic, and in that
year the old market was abolished by
28 Geo. 2. c. 9 ; and by another statute in
the same year (28 Geo. 2. c. 23) a new market
was granted to new grantees on a site provided
by them, section 4 of which made it unlawful
for any person " to erect or hold any other
market " within the borough. An amending
Act (30 Geo. 2. c. 31) by section 10 imposed
a penalty " if any poulterer, country chap-
man, lader, kidder, victualler, gardener,
fruiterer, fish-seller, or any other person or
persons, shall sell, utter, or put to shew or
sale, by way of hawking, or as a hawker, or
otherwise any . . . fruit, herbs ... or other
victuals or provision whatsoever, in any private
house, lane, alley, inn, warehouse, street, . . .
or other place . . . within 1,000 yards " of the
market, but excepted from this provision sales
by a person in his " own shop." For many
years the market had been carried on as a fruit
and vegetable market, where salesmen sold
goods wholesale, and where, besides selling
their own goods, they sold those of other
persons on commission. In 1909 the defen-
dant gave up his stalls in the market and
took large premises near the market on lease
for twenty-one years, where he carried on a
wholesale business similar to that of salesmen
in the market, using the greater part of his
premises to expose goods for sale and store
them with a view to a sale. In an action by
the market trustees for an injunction to
restrain him from so carrying on his business,
— Held, that the defendant was carrying on
business in his " own shop " within the per-
missive part of section 10 of 30 Geo. 2. c. 31,
and had therefore incurred no penalty under
the Act, and that no injunction ought to be
granted. Haynes v. Ford, 80 L. J. Ch. 490;
[1911] 2 Ch. 237 ; 104 L. T. 696 ; 75 J. P. 401 ;
9 L. G. R. 702; 27 T. L. R. 416— C.A.
Selling within Prescribed Limits — Tollable
Article — "Sell."] — By section 13 of the
Markets and Fairs Clauses Act, 1847, " After
the market place is open for public use every
person other than a licensed hawker who shall
sell or expose for sale in any place within the
prescribed limits, except in his own dwelling
place or shop, any articles in respect of which
tolls are by the special Act authorized to be
taken in the market, shall for every such
offence be liable to a penalty ..." The
appellant, who was a farmer, at his dwelling
house, which was within the prescribed limits
of the town of Ilfracombe, agreed to sell to a
butcher in Ilfracombe two pigs at the rate of
10s. 6(1. per score. They were to be at the
appellant's risk until delivered. The appel-
lant subsequently killed the pigs and delivered
the carcasses to the butcher at his shop, which
was within the prescribed limits of the town,
but outside the market, where they were
weighed, and the price ascertained. The
appellant, having refused to pay toll in respect
of the pigs, was convicted of an offence under
section 13 : — Held, that in construing the
section the niceties of the law relating to the
sale of goods must be disregarded ; that the
section applies to an agreement which would
popularly be called a sale ; that the sale of
the pigs was therefore at the appellant's
" dwelling place," and not at the shop where
the carcasses were subsequently delivered,
and that the appellant was wrongly convicted.
Lambert v. Roice, 83 L. J. K.B. 274; [1914]
1 K.B. 38; 109 L. T. 939; 78 J. P. 20;
12 L. G. R. 68; 23 Cox C.C. 696— D.
Sale in Street — Hawker's Licence — Licence
of Corporation — Exemption — Sale otherwise
than as Hawker.] — By section 53 of the Derby
953
MARKETS AND FAIRS— MASTER AND SERVANT.
954
Corporation Act, 1877 (40 & 41 Vict. c. 118)
it is provided that if any person sells or
exposes for sale, except in his own dwelling
house or shop, or in the dwelling house or
shop of the buyer or intended buyer, or carries
about for sale any article in respect of the
sale or exposure for sale whereof in any
market place or market hall, or fair, or in
respect of the user of any stall or other con-
venience for the sale or exposure for sale
whereof in any market place or market hall,
or fair, the corporation are entitled to take
any toll, stallage, or rent, he shall be liable
to a penalty unless he is duly licensed for that
purpose under the Act by the corporation. By
section 55 of the same Act it is provided that
nothing in the Act shall interfere with the
lawful exercise of their calling by pedlars and
hawkers duly licensed or certificated under any
Act relating to such calling. An information
was laid against the respondent under the
Derby Corporation Act, 1877, for selling
tomatoes from a hand-barrow in a street in
the county borough of D. without having
obtained a licence as required by the Act from
the corporation. Under the Act tomatoes were
included amongst the articles in respect of the
sale of which in a market place the corporation
were entitled to take a toll. The respondent
had taken out a licence under the Hawkers
Act, 1888 : — Held, that the mere fact that the
respondent had taken out a hawker's licence
under the Hawkers Act, 1888, was not suffi-
cient to relieve him from the necessity of taking
out a licence from the corporation of D. under
the local Act for the sale of the articles in
question, since in selling the same he was not
acting under his hawker's licence, and that
the exemption granted by section 55 of the
Act did not apply to hawkers as a class, but
only to hawkers in the lawful exercise of their
calling as hawkers. Lee v. Wallocks,
111 L. T. 573 ; 78 J. P. 365 ; 12 L. G. E. 1221 ;
24 Cox C.C. 398— D.
Sale by Agent — Unauthorised and Contrary
to Instructions — Liability of Principal.] — By
a market Act it was provided : " For prevent-
ing any encroachments ... on the said
market, be it further enacted . . . that it shall
not be lawful ... to vend or expose to sale
any . . . meat ... in any shop . . . and
every person who shall so vend or expose to
sale " such meat, on conviction shall forfeit
51. to be recovered by distress ; and in default
of distress imprisonment could be inflicted.
The respondent, who had only a pork licence
for his shop, brought some sheep carcasses to
such shop for storage, intending to remove
them to his stall in the market next morning.
His wife, contrary to his instructions, and
without his knowledge or authority express or
implied, sold some of the mutton to a customer
at the shop : — Held, that the respondent was
not liable to the penalty. Wake v. Dyer,
104 L. T. 448; 75 J. P. 210; 9 L. G. R. 348;
22 Cox C.C. 413— D.
C. TOLLS.
See also Vol. IX. 773, 2104.
Sale of Milk.]— By a table of tolls of a
certain market there was to be a toll " for
every cart containing milk, fish, or other
goods, provisions, marketable commodities, or
articles, 6d." The respondent sold milk from
a cart within the prescribed limits, and was
summoned under section 13 of the Markets and
Fairs Clauses Act, 1847, which was incor-
porated in the local Act, for unlawfully sell-
ing, within the prescribed limits, milk in
respect of which toll was duly authorised to
be taken in the market : — Held, that the toll
was a toll on every cart containing milk and
not on the sale of milk, and the respondent
could not be convicted for unlawfully selling
milk within the prescribed limits. Jenkins
V. Thomas, 104 L. T. 74; 75 J. P. 87;
9 L. G. E. 321— D.
See also Att.-Gen. v. Horner (No. 2), ante,
col. 949, and Lambert v. Rowe, ante, col. 952.
D. HAWKEE.
See Lee v. Wallocks, ante\, col. 953.
MARRIAGE.
See HUSBAND AND WIFE;
INTEENATIONAL LAW.
MARRIED WOMAN.
See HUSBAND AND WIFE;
BANKEUPTCY.
MASTER AND SERVANT.
I. Eights and Liabilities of Master and
Servant.
A. Contract of Hiring.
1. Wages and Eemuneration, 955.
2. Other Eights under the Contract,
956.
3. Termination of, 958.
B. Character of Servant, 959.
C. Injuries to Servant in Course of
Employment.
Under Employers' Liability Act, 959.
2. Acts of Fellow Servant ; Common
Employment, 960.
3. Master's Negligence, 962.
4. Under Workmen's Compensation
Act — See title Workmen's Com-
pensation.
955
MASTEE AND SEEVANT.
956
D. Under the Factory Acts.
1. Definition of Factory, Workshop,
and Manufacturing Process, 962.
2. Offences under the Acts, 965.
3. Liability to Actions, 967.
E. Under the Employers and Workmen
Act, 968.
F. Under the Shops Act.
1. Generally, 968.
2. Shops, 969.
3. Trading Elsewhere than in Shop,
970.
4. Shop Assistants, 971.
5. Exemptions, 972.
II. Rights and Li.\bilities of Master and
Third Parties.
A. Rights of Master, 973.
B. Liabilittj of Master, 974.
I. RIGHTS AND LIABILITIES OF
MASTER AND SERVANT.
A. Contract of Hiring.
1. Wages and Remuneration.
See also Vol. IX. 812, 2116.
Servant's Right to Salary when Absent
through Illness — Headmistress.] — The plain-
tiff, a married woman, was the headmistress
of one of the defendants' schools. By the
terms of her employment she was entitled in
case of absence through illness to full pay for
a month, after which time the defendants were
entitled to take into consideration the circum-
stances of the case as to whether she was
entitled to anything further : — Held, first,
that " absence through illness " was not con-
fined to a period of absence during actual
illijess, but included the period of convales-
cence and also absence occasioned by approach-
ing illness; but secondly, that the absence of
the plaintiff for a period of three months before
her child was born, because in the defendants'
view it was not desirable that the elder school
children should see the plaintiff in her then
condition, was not absence through illness,
and as such absence was due to the defen-
dants' request, they were liable for her salary
during that period. Davies v. Ebbw Vale
Urban Council, 75 J. P. 533; 9 L. G. R. 1226 ;
27 T. L. R. 543— Channell, J.
Wages — Trade Scheduled under Trade
Boards Act, 1909 — "Outworker" — Person
Employing Workmen.] — A person may be an
'■ outworker " within the meaning of the Trade
Boards Act, 1909, notwithstanding that he
himself employs workmen. Street v. Williams,
83 L. J. K.B. 1268; [1914] 3 K.B. 537;
111 L. T. 544 ; 24 Cox C.C. 365 ; 78 J. P. 442
— D.
Tailoring Trade — Occasional Employment in
Tailoring Work.]— The Board of Trade made
an Order under section 5, sub-section 2 of the
Trade Boards Act, 1909, making minimum
rates of wages obligatory for certain branches
of the tailoring trade engaged in making
garments for male persons. The schedule to
the Order provided that the rates were to
apply to all male workers who were " engaged
during the whole or any part of their time "
in any branch of the ready-made and whole-
sale bespoke tailoring trade which is engaged
in making garments to be worn by male
persons, but that they should not apply to
" persons engaged merely as clerks, messen-
gers, . . . and to others whose work stands
in a relationship to the trade similar to that
of the above excluded classes " : — Held, that,
where a worker is engaged for any substantial
part of his time in work in the tailoring trade,
he is entitled to be paid at the minimum
rate of wages for such part of his time,
notwithstanding that he may be employed in
other work for the rest of his time. Board
of Trade v. Roberts, 85 L. J. K.B. 79;
113 L. T. 739: 79 J. P. 465— D.
Wages of Miners.] — See Mines.
Truck Act — Payment of Wages in Coin —
Deduction for Rent.] — A company let to its
employees houses for the period of their em-
ployment with the company. At each fort-
nightly pay day the employees signed receipts
for their wages, which contained a clause
authorising the deduction of their house rent
from their future wages, and also this clause :
" In the event of my leaving your employment
I authorise you to retain whatever moneys are
in your hands until I remove from your house."
On March 1, 1912, the employees left the
employment owing to a strike, and from the
wages payable on that day the company, in
virtue of the authority granted in the receipts
signed on the preceding pay day, February 16,
withheld in the case of each employee a sum as
against what might thereafter become due for
the occupation of his house : — Held, that the
contract of February 16 and the retention of
part of the wages on March 1 were both illegal
in respect, first (following Williayns v. North's
Navigation Collieries, 75 L. J. K.B. 334;
[1906] A.C. 136), that they were in contraven-
tion respectively of sections 2 and 3 of the
Truck Act; and secondly (following M'Farlane
V. Birrell, 16 R. (J.) 28), that they did not
fall within the exception in section 23, seeing
that, the tenancies having determined with the
employment, any sums due after March 1 were
not rent, but damages for illegal occupation.
Summerlee Iron Co. v. Thomson, [1913]
S. C. (J.) 34— Ct. of Just.
2. Other Rights under the Contract.
See also Vol. IX. 825, 2121.
Confidential Employment — Trade Secrets —
Disclosure to New Employer — Contract to
Preserve Secrecy — Injunction — Nature of
Secret not Disclosed to Court.] — The Court
will restrain an ex-servant from publishing or
divulging anything which has been communi-
cated to him in confidence, or under a contract
by him, express or implied, not to do so; and
generally from making improper use of infor-
mation obtained in the course of a confidential
957
MASTER AND SERVANT.
958
employment; also from using, to his late
master's detriment, information and knowledge
surreptitiously obtained from him during the
term of service. The Court will grant an
injunction to restrain the disclosure of a secret
process although the process has not been dis-
closed to the Court, provided it is satisfied
that the process exists, and can be disclosed if
necessary. Amber Size and Cliemical Co. v.
Menzel, 82 L. J. Ch. 573; [1913] 2 Ch. 239;
109 L. T. 520; 30 R. P. C. 433; 57 S. J. 627;
29 T. L. R. 590— Astbury, J.
Misconduct of Servant — Suspension from
Work — Right of Master.] — The appellant was
a workman in the employ of the respondents
under a contract of service determinable by
fourteen days' notice on either side. On
Sunday, June 14, 1914, he absented himself
from work without the respondents' leave, and
as a result on Monday, June 15, the respon-
dents suspended him from work for that one
day. On June 29 the appellant preferred a
summons against the respondents under the
Employers and Workmen Act, 1875, on the
ground that he had been wrongfully dismissed
by the respondents on June 15 without having
given or received the necessary notice, and he
claimed damages : — Held, that the respon-
dents had a right either to dismiss the
workman for his misconduct in absenting him-
self from work without leave, and thus put
an end to the contract of service, or to treat
the contract as continuing (subject to their
right to claim damages against the workman),
but that they had no right to suspend the
workman for one day and thus prevent him
from earning wages for that period. Hartley v.
Pease and Partners, Lim., 84 L. J. K.B. 532;
[1915] 1 K.B. 698; [1915] W. C. & I. Eep.
178; 112 L. T. 823; 79 J. P. 230— D.
Powers of Court of Summary Jurisdic-
tion.] — A Court of summary jurisdiction,
when dealing with a dispute between master
and servant under the Employers and Work-
men Act, 1875, is not strictly confined to the
consideration of the claim made before it, but
can deal with all disputes which may appear
in the course of the hearing to have arisen
between master and workmen. lb.
Indemnity for Losses Incurred by Servant
in Performance of Duty — Employee of Com-
pany— Costs of Libel Action Brought in
Consequence of Report — Provision in Articles
for Indemnity of Officers and Servants.] — A
mining engineer was employed by a company,
on certain terms as to remuneration and travel-
ling and otlier expenses, to visit and report
on property of the company abroad. While
carrying out this commission he discovered
matters relating to the conduct of a director,
which matters he had not been employed to
investigate, but which, having discovered
them, it was his duty to report to the com-
pany. He made such a report and incurrc^d
large costs in defending successfully a libel
action brought against him in consequence by
the director. One of the company's articles of
association provided that its officers and ser-
vants should be indenmified by it against loss,
and that all costs, losses, and expenses which
any officer or servant might incur or become
liable to by reason of acts or deeds done by
him as such officer or servant should be paid
out of the company's funds. Sargant, J.,
held, distinguishing The James Seddon
(35 L. J. Adm. 117; L. R. 1 A. & E. 62), that
t)ie engineer as a servant of the company was
not entitled either at common law or under
the articles of association to be indemnified
by the company in respect of the costs : —
Held, by the Court of Appeal on the facts, that
the engineer was an agent of the company and
not a mere servant. On well settled principles
he was entitled as such agent to be indemnified
against all liability reasonably occasioned by
his employment. Famatina Development
Corporation, In re, 84 L. J. Ch. 48;
[1914] 2 Ch. 271 ; 30 T. L. R. 696— C. A.
3. Termination of.
See also Vol. IX. 828, 2126.
Engagement for a Year — Condition as to
"satisfaction of directors" — Honest Dissatis-
faction— Right of Dismissal Within the Year.]
— By an agreement in writing the defendants
engaged the plaintiff as shop superintendent.
The agreement provided that the engagement
should be for one year, subject to the plaintiff's
carrying out his duties " to the satisfaction
of the directors." Before the expiration of the
year the defendants dismissed the plaintiff on
the ground that he had not carried out his
duties satisfactorily. In an action brought by
the plaintiff to recover damages for wrongful
dismissal the jury found — first, that the defen-
dants were genuinely dissatisfied with the
plaintiff's discharge of his duties ; but, secondly,
that they had no good grounds for such dis-
satisfaction. The County Court Judge entered
judgment for the defendants : — Held, that
upon the findings of the jury judgment was
properly entered for the defendants, inasmuch
as genuine dissatisfaction was sufficient to
entitle them to terminate the agreement, and
their reasons for such dissatisfaction were
immaterial. Diggle v. Ogston Motor Co.,
84 L. J. K.B. 2i65 ; 112 L. T. 1029— D.
Domestic Service — First Month's Service —
Custom to Determine by Fortnight's Notice —
Judicial Notice of Custom — Right of Servant
to Wages for Month's Service.] — The plaintiff
entered the defendant's employment as a
domestic servant on November 3, 1910, at the
yearly wage of 231., payable monthly. No
special agreement was made as to the length
of notice required to determine the contract.
On November 17, 1910, the plaintiff gave the
defendant notice of her intention to leave at
the end of a month's service, and accordingly
she left on December 3. The defendant
having declined to pay the plaintiff any wages
upon the ground that she had broken the
contract by failing to give a month's notice,
the plaintiff sued the defendant in the County
Court to recover her wages for the month she
had served. At the trial the plaintiff relied
upon a custom that either master or servant
may determine such a contract at the end of
the first month by notice given at or before
the expiration of the first fortnight. No
959
MASTEE AND SERVANT.
960
evidence was given in support of this custom,
but the County Court Judge said he would
take judicial notice of it, adding that he had
done so upon previous occasions. He accord-
ingly gave judgment for the plaintiif for the
month's wages : — Held, first, that the County
Court Judge having had the question before
him on previous occasions was entitled to take
judicial notice of the custom; and secondly,
that in any view the plaintiff was entitled to
be paid for the month she had served. Moult
V. HaUiday (67 L. J. Q.B. 451 ; [1898] 1 Q.B.
125) considered. George v. Davies, 80 L. J.
K.B. 924; [1911] 2 K.B. 445; 104 L. T. 648;
55 S. J. 481; 27 T. L. R. 415— D.
Action for Wrongful Dismissal — Prima
Facie Case of Misconduct — Burden of Proof —
Condonation.] — ^Yhere a master dismissed his
servant on the ground of the servant taking a
secret commission, and established a prima
facie case, the burden of proof held to be
shifted and to lie on the servant to prove the
innocence of the transaction. A man cannot
condone a wrong which he does not believe
that servant to have committed, and of which
he accepts the servant's denial, without
making enquiries which would have disclosed
the truth. The master does not waive his
rights by postponing action until he is fully
satisfied of the servant's guilt. Federal Supply
and Cold Storage Co. v. Angehrn, 80 L. J.
P.C. 1; 103 L. T. 150; 26 T. L. R. 626— B.C.
Contract of Service — Restriction on
Trade — Dismissal.] — It is not competent for
a servant to contend that he has been wrong-
fully dismissed when, instead of being given a
week's notice to quit, in accordance with the
terms of his contract, he is paid a week's
salary and dismissed. Such a transaction does
not amount to a wrongful dismissal, coupled
with a tender of damages. Dennis v. Tunnard,
66 S. J. 162— Swinfen Eady, J.
B. Chakacter of Servant.
See also Vol. IX. 857, 2130.
Conspiracy to Give False Character to Ser-
vant— Oral Character.] — A false character,
not in writing, is within the operation of
sections 2 and 3 of the Characters of Servants
Act, 1792, and the giving of such false
character orally is an indictable offence. Rex
V. Costello (or Connolly), 79 L. J. K.B. 90;
[1910] 1 K.B. 28; 101 L. T. 784; 74 J. P. 15;
22 Cox C.C. 215; 54 S. J. 13; 26 T. L. R.
31— CCA.
C Injuries to Servant in Course of
Employment.
1. Under Employers' Liability Act.
See also Vol. IX. 860, 2134.
Action for Damages under Employers' Lia-
bility Act, 1880, or Alternatively at Common
Law — Remission for Trial — Scotland.] — An
action by the father of a deceased workman,
claiming damages for the death by accident
of his son, against the employers, based
upon common law or alternatively upon the
Employers' Liability Act, 1880, is not a claim
by an employee against his employers, and is
not within the exception in the Sheriff Courts
(Scotland) Act, 1907, s. 30, by which actions
for damages in the Sheriff Court may at the
suit of either party be remitted to the Court
of Session for jury trial. The effect of that
section is to repeal section 14 of the Workmen's
Compensation Act, 1906. Banknock Coal Co.
V. Lawrie, 81 L. J. P.C. 89; [1912] A. C
105 ; 106 L. T. 283 ; 28 L. R. 136 ; [191'^] W.C
Rep. 1— H.L. (Sc).
2. Acts of Fellow Servant; Common
Employment.
See also Vol. IX. 877, 2139.
Common Employment — Hiring for Particu-
lar Service — Control of Servant — Negligence
— Injury to Hirer's Servant.] — The Belfast
Harbour Commissioners have, under their
statutory powers, the control of the harbour
and of all piers, docks, and quays belonging to
it ; and it is their duty to assign a berth to a
vessel to be discharged in the port ; they have
power to provide cranes for the unloading of
such vessels, and it is their duty to provide
proper servants and labourers for working
such cranes for the use of the public. The
master of a vessel hired a crane from the com-
missioners for the purpose of her discharge.
He signed a request for its use, subject to
the commissioners' regulations, containing an
agreement that he was to be responsible for all
loss or damage arising from any improper use
of the crane while so employed. The crane
was put in position by the craneman, and the
vessel was moved to a berth opposite it. The
practice is that the buckets are filled by the
hirer's servants in the hold, one of whom
directs the craneman to raise and lower each
bucket and to swing round the arm of the jib.
The craneman regulates by a brake the speed
of ascent and descent of each bucket, and he
alone works the machine. While the plaintiff,
being employed for that purpose by the ship-
master, was filling a bucket in the hold, an
empty bucket, while being lowered by the
crane, descended with great speed and violence
and struck the plaintiff, who was seriously
injured. The craneman was employed and
paid by the commissioners, who alone could
dismiss him. Except in directing buckets to
be raised or lowered, neither the hirer nor his
servants had any control over the craneman.
If the shipmaster was dissatisfied, his only
remedy would be to direct the craneman to
stop working, and to apply to the commis-
sioners to send another in his place, which
they might or might not do. In no event
could the hirer employ a servant of his own
to work the crane, or procure a crane workable
on the pier from any one but the commis-
sioners. In an action by the plaintiff, against
the commissioners to recover damages for per-
sonal injuries, the jury found that the hirer
had no authority to control the craneman
otherwise than in respect of the time and
place of movement of the crane, and the time
of raising and lowering the buckets ; that the
bucket which injured the plaintiff got out of
961
:\IASTER AND SERVANT.
962
the control of the craneman through his
negligence ; and that this negligence was the
cause of the accident : — Held, that the plain-
tiff was entitled to a verdict ; that the agree-
ment of the hirer to be responsible for any
improper use of the crane afforded no defence
to the plaintiff's action, and that the plaintiff
and craneman were not at the time of the
accident fellow servants engaged in a common
employment. Donovan \. Laing (63 L. J.
Q.B. 25; [1893] 1 Q.B. 629) distinguished.
M'Cartan v. Belfast Harbour Commissioners,
[1911] 2 Ir. R. 143— H.L. (Ir.)
Negligence of Fellow Servant — Infant.]
— The plaintiff, a boy of fourteen, who had
been invited by the defendants' firemen to
assist along with other boys in pulling the
defendants' fire escape home after it had been
used in fire drill, was injured in so doing. In
an action claiming damages from the defen-
dants the jury found, first, that the defendants
were not themselves guilty of negligence ;
secondly, that the fire escape was a fit and
proper one for its purpose; thirdly, that the
defendants' servants were guilty of negli-
gence in the management of the fire escape
or in allowing the plaintiff to pull it ; and
fourthly, that the plaintiff was not aware of
the danger: — Held, that the doctrine of
common employment applied, and that judg-
ment should be entered for the defendants.
Bass V. Hendon Urban Council. 28 T. L. E.
317— C. A. Reversing 76 J. P. 13— Darling, J.
Licensee — Person Assisting Another in
Executing Work — Injury to Person Assisting
- Common Employment.] — The plaintiff's
employers engaged the defendants to repair a
linotype machine. The defendants sent one
of their servants to the premises of the plain-
tiff's employers for that purpose. The plaintiff,
at the request of the defendants' servant, was
assisting in the work when a chip of metal
flew into his eye and injured him. In an
action brought by the plaintiff to recover
damages from the defendants in respect of the
injury, the jury found that the defendants'
servant was guilty of negligence in executing
the work ; that the plaintiff did not voluntarily
assist the defendants' servant for the benefit
of the defendants, but that he assisted him
for the benefit of his own employers in order
to expedite the work : — Held, that, having
regard to the findings of the jury, the doctrine
as to common employment was not applicable,
and that the plaintiff was entitled to recover.
Williams v. Linotype and Machinery, Lim.,
84 L. J. K.B. 1620; 112 L. T. 558— Avory, J.
Plaintiff's Negligence Sole Effective
Cause of Injury.^ — Where an employer sup-
plies machinery reasonably effective for its
purpose, and causes the staff to be informed
that certain rules should be observed, he is
not liable for an injury caused by a rash and
reckless violation of a rule. Sword v. Cameron
(I Dunlop, 493) distinguished. Canadian
Pacific Raihcay v. Frdchette, 84 L. J. P.C.
161; [1915] A.C. 871; 31 T. Tj. R. 529— P.C.
Statutory Duty — Common Law Lia-
bility.]— The defence of common employment
cannot be pleaded to an action for breach of a
statutory duty. Butler or Black v. Fife Coal
Co., 81 L. J. P.C. 97; [1912] A.C. 149;
106 L. T. 161 ; 28 T. L. R. 150— H.L.. (So.)
Accident Caused by Breach of Statutory
Duty by Employer. ^ — The breach of a statu-
tory duty by an employer is not one of the
risks which a servant must be assumed to
have undertaken to run when he entered the
employer's service, and therefore, where an
employer has employed an unqualified person
in breach of his statutory duty, he cannot rely
on the defence of " common employment " in
the case of an accident to a servant caused, or
contributed to, by the conduct of such
unqualified person. Jones v. Canadian Pacific
Railway, 83 L. J. P.C. 13; 110 L. T. 83;
29 T. L. R. 773— P.C.
A railway company employed a person who
had not passed the tests required by an order
of the Railway Commissioners, which had the
force of a statute, to work a train. He allowed
the train to run past danger signals, and an
accident resulted : — Held, that there was
evidence that the breach of the statutory duty
caused, or contributed to, the accident. 76.
3. Master's Negligence.
See also Vol. IX. 886, 2141.
Condition of Plant — Failure to Use Safety
Appliance — Common Law Liability of
Master.] — At common law a master does not
warrant the condition of his plant, and is not
liable for an accident caused by a defect which
could not have been discovered by him by
reasonable diligence, and he is not bound to
adopt all the latest improvements and appli-
ances; but where an accident had occurred,
and the master had made enquiries as to safety
appliances which might have prevented such
an accident in the future, but had not adopted
any of them, and afterwards a similar accident
occurred, — Held, that there was evidence on
which a jury might find in the second case
that there was an absence of reasonable care
on the part of the master. Toronto Power Co.
V. Paskwan, 84 L. J. P.C. 148; [1915] A.C.
734; [1915] W.C. & I. Rep. 444; 113 L. T. 353
—P.C.
4. Under Workmen's Compensation Act.
See title Workmen's Compens.^tion.
D. Under the Factory Acts.
1. Definition of Factory, Workshot), and
Manufacturing Process.
See also Vol. IX. 894. 2.306.
" Non-textile factory " — Bottling Beer by
Machinery — " Bottle-washing works."! — On
the first floor of premises occupied by a firm of
wholesale and retail grocers, wine merchants,
and Italian warehousemen, there was a port-
able bottle-filling machine used for bottling
beer, and on the ground floor another machine
used for washing the firm's bottles, both
machines being worked by electricity : — Held,
31
963
MASTER AND SERVANT.
964
first, that the premises on the first floor were
not a " non-textile factory " within section 149,
Bub-section 1 of the Factory and Workshop
Act, 1901, in respect that the process of
bottling beer was neither an " adapting for
sale of any article " nor a " manufacturing
process"; and secondly, that the premises on
the ground floor were not " bottle-washing
works " within the meaning of the same
section and sub-section and Schedule VI.
Part II. (28). in respect that the bottle wash-
ing was merely incidental to the firm's proper
business. Keith, Lim. v. Kirkivood, [1914]
S. C. (J.) 150— Ct. of Just.
Workshop on One Floor — Factory on
Floor Above.] — A building was occupied by a
tenant who used the ground floor as a shop,
the first floor partly as a shop and stock room
and partly as a millinery room for the trim-
ming of hats, no mechanical power being used ;
the second floor as a factory for dressmaking,
where mechanical power was used ; and the
third floor as a storeroom. The floors were
connected by internal staircases : — Held, that
the millinery room was not a factory or part
of a factory within section 149, sub-section 1
of the Factory and Workshop Act, 1901. Vines
V. Inglis, [1915] S. C. (J.) 18— Ct. of Just.
Carpet-beating Works — " Manufacturing
process."] — By section 149, sub-section 1 (b)
of the Factory and Workshop Act, 1901,
" non-textile factory " means any premises or
places named in Part 11. of the Sixth Schedule
" wherein steam, water or other mechanical
power is used in aid of the manufacturing
process carried on there." Part II. of the
Sixth Schedule includes carpet-beating works.
The respondents carried on in a part of their
premises the business of carpet beaters,
carpets being there beaten by means of a
machine driven by a gas engine within the
premises : — Held, that the premises were a
" factory " within the meaning of the above
enactment. Johnston v. Lalonde, 81 L. J.
K.B. 1229; [1912] 3 K.B. 218; 76 J. P. 378;
10 L. G. R. 671— D.
Men's Workshop — Out-worker — Non-
furnishing of Statement of Rate of Wages
Applicable.] — By reason of the provisions of
section 157 of the Factory and Workshop Act,
1901, which enacts that the provisions of
section 116 of the Act shall not apply to men's
workshops, a Secretary of State has no power
under the provisions of sub-section 5 of
section 116 to apply the provisions of the
section to out-workers employed in connection
with a men's workshop; and in such a case
an employer, who carries on business as a
tailor, is under no obligation to furnish to
a person who is an out-worker a written or
printed statement of the particulars of the
rate of his wages applicable to the work to
be done by him. Seal v. Alexander, 81 L. J.
K.B. 628; [1912] 1 K.B. 469; 106 L. T. 121;
76 J. P. 156; 22 Cox C.C. 697; 28 T. L. R.
196— D.
" Manufacturing
process " — Cleaning
Machinery.] — See Crabtree v. Commercial
Mills Spinning Co., post, col. 966.
Laundries — Affixing of Abstract of Factory
and Workshop Act in Laundry — " Public
institution."] — An orphan asylum, although
it receives no Government grant, and is sub-
ject to no public control, but is maintained in
its own private premises and grounds by sub-
scriptions and donations, for which appeals
are made to the general public, is nevertheless
a " public institution " within section 1 of the
Factory and Workshop Act, 1907, and an
abstract of the Factory and Workshop Act,
1901, must accordingly be af&xed in the
laundry of the asylum, as prescribed by
section 128 of the last-mentioned Act. Seal
V. British Orphan Asylum, 104 L. T. 424;
9 L. G. R. 238; 75 J. P. 152; 22 Cox C.C.
392— D.
Laundry Carried on " incidentally to the
purposes of any public institution."] — The
Royal Masonic Institution for Boys is almost
entirely maintained by the subscriptions of
freemasons belonging to the English constitu-
tion of freemasons. No appeal is made to the
general public, though the trustees are ready
to accept and do receive voluntary contribu-
tions from persons other than freemasons.
The election of boys is confined to the sons
of subscribing freemasons and decided by
vote. The management and control are in
the board of management, consisting of thirty
freemasons who are life governors. In 1910
the institution received a grant from the
Board of Education as a secondary school.
Division A. The grounds and premises are
strictly private. A building on the premises
is used as a laundry with machinery driven
by mechanical power. Six resident servants
are employed in the laundry, but none of the
inmates of the institution is so employed.
Upon an information for not afi&xing at the
laundry the abstract prescribed by section 128
of the Factory and Workshop Act, 1901, —
Held, that the school was a public institution
within the meaning of section 1 of the Factory
and Workshop Act, 1907, and that the laundry
was carried on " incidentally to the purpose
of a public institution," and was therefore a
" factory " wuthin the meaning of the Factory
and Workshop Act, 1901, and that the trustees
had committed an offence in not having the
abstract affixed to the premises. Royal
Masoyiic Institution v. Parkes, 82 L. J. K.B.
38 ; [1912] 3 Iv.B. 212 ; 106 L. T. 809 ; 76 J. P.
218; 10 L. G. R. 376; 22 Cox C.C. 746;
28 T. L. R. 855— D.
Laundry Attached to Hotel — Necessity
of Compliance with Factory and Workshop
Acts — " Laundry carried on as ancillary to
another business."] — The respondent, the
occupier of a hotel where he carried on the
business of a hotel proprietor, on a certain
day employed two women in a laundry in such
circumstances as to constitute breaches of the
Factory and Workshop Acts if the laundry
was, within the meaning of section 1 of the
Factory and Workshop Act, 1907, carried on
as ancillary to the business of hotel proprietor.
The laundry was not used for the washing of
965
MASTER AND SERVANT.
966
visitors' linen, but was used only for washing
the table linen, sheets, &c., used in and for
the purposes of the hotel, for which purpose
two women were exclusively employed during
the summer and one during the winter. Upon
informations for offences under the Factory
and Workshop Acts. 1901 and 1907, the
Justices, being of opinion that the laundry
was not carried on as ancillary to the hotel
business, dismissed the informations : — Held,
that, assuming that the place was in fact a
laundry, as the Justices must be taken to have
found as a fact, the laundry was, within the
meaning of the section, carried on as " ancil-
lary " to the hotel business, and was a
" laundry " to which the section applied, and
that therefore the respondent ought to have
been convicted. Sadler v. Roberts, 105 L. T.
106; 75 J. P. 342; 22 Cox C.C. 520— D.
2. Offences under the Acts.
See also Vol. IX. 896, 2311.
"Occupier" of Factory — Limited Com-
pany.]— A limited company, as the occupier
of a factory, may be proceeded against for a
contravention of section 137 of the Factory and
Workshop Act, 1901, in employing persons
contrary to the Act. Rex v. Gainsford,
29 T. L. R. 359— D.
Proceedings against Master — Abstract of
Statute Affixed in Factory — No Notice to
Produce Abstract — Admissibility of Secondary
Evidence of Abstract.] — By section 128, sub-
section 1 of tlie Factory and Workshop Act,
1901, there shall be affixed in every factory
and be constantly kept so affixed the prescribed
abstract of the Act, including the notice re-
quired by section 32 specifying the period of
employment and times allowed for meals in
the factory. By sub-section 2 the occupier
of the factory is liable to a fine not exceeding
40.S. for contravention of the section. The
respondents were charged on an information
preferred by the appellant, an inspector of
factories, with allowing a young person in
tlieir employment to remain in a room in their
factory, in which a manufacturing process or
handicraft was being carried on, during a part
of the time allowed for meals in the factory.
On the hearing of the information the appel-
lant proposed to give secondary evidence of
the printed abstract of the Act and notice
affixed in the respondents' factory, although
no notice to produce it had been given. He
admitted that the abstract and notice was a
printed form hung up in the factory and was
movable. Objection being taken to the ad-
mission of such secondary evidence, the Justices
upheld the objection and dismissed the sum-
mons. On a Case stated, — Held, that as by
reason of the statute the abstract must be
continually affixed in the factory, and its
removal by the respondents would be a breach
of the statute subjecting them to a penalty,
this was an exception to the rule requiring
a notice to produce, and secondary evidence
was admissible of the contents of the abstract.
Mortimer v. M'Callan (9 L. J. Ex. 73;
6 M. & W. 58) followed. Owner v. Beehive
Spinning Co., 83 L. J. K.B. 282; [1914]
1 K.B. 105; 109 L. T. 800; 78 J. P. 15;
12 L. G. R. 42; 23 Cox C.C. 626; 30 T. L. R.
21— D.
Hoist or Teagle — Fencing of Macliinery —
Liability of Master to Fence.] — Section 10,
sub-section 1 iat of the Factory and Work-
shop Act, 1901, provides that " Every hoist or
teagle and every fly-wheel directly connected
with . . . mechanical power, . . . must be
securely fenced " : — Held, that the words
" directly connected with . . . mechanical
power " do not apply to the words " hoist or
teagle," and that there is an absolute obliga-
tion to fence every hoist in a factory whether
worked bv mechanical power or not. Jackson
V. Mulliner Motor Body Co., 80 L. J. K.B.
173: [19111 1 K.B. 546; 104 L. T. 181;
75 J. P. 103— D.
Employment of Women — Prohibited Hours
— Machine in Motion for Purpose of Cleaning
— Manufacturing Process also Carried on.] —
By section 24, sub-section 3 (b) of the Factory
and Workshop Act, 1901, the period of employ-
ment of women in a textile factory on a
Saturday must end at half-past eleven o'clock
in the forenoon '" as regards employment in
any manufacturing process," and at noon as
regards employment for any purpose. In the
respondents' cotton-spinning factory an in-
spector found at 11.50 a.m. on a Saturday two
women engaged in cleaning the machines at
which they were working, and which it was
their duty to tend and clean. The machines
had not been in motion from 11.30 a.m. till
immediately before 11.50 a.m., and they were
then in motion merely for the purpose of being
cleaned, and not for the purpose of manufac-
turing. The machines could not be properly
cleaned without setting them in motion for
that purpose ; and they performed the manu-
facturing process completely without the inter-
vention of the women, except for the purpose
of feeding, cleaning, and regulating. While
the women were cleaning the machines the
machines were apparently working and per-
forming the manufacturing process as if the
women had not been cleaning them. Upon
informations against the respondents for
employing the women in a " manufacturing
process " during the prohibited time, — Held,
that, inasmuch as the machines were in motion
merely for the purpose of being cleaned, and
not for the purpose of manufacturing, the
women were not employed in a " manufactur-
ing process " within the meaning of the sub-
section, and no offence thereunder had been
committed. Crabtree v. Commercial Mills
Spinning Co.. 103 L. T. 879: 75 J. P. 6— D.
Employment of Children — Cleaning
Machinery while in Motion.! — In the course
of spinning woollen yam part of the material
which is being spun is stripped off and becomes
a species of fluff which adheres to the revolving
rollers. Unless the fluff is removed — which
has to be done while the machine is in motion
by the aid of mechanical power — the rollers
become choked and the process stops : — Held,
that the removal of the fluff from the rollers
by a child is a cleaning of part of the
machinery within the meaning of section 13,
967
MASTER AND SEEVAXT.
968
sub-section 1 of the Factory and Workshop
Act, 1901, and therefore prohibited, notwith-
standing that the fluff which is removed has
a saleable value, and is in fact sold. Taylor v.
Dawson, 80 L. J. K.B. 102: [1911] 1 K.B.
145 ; 103 L. T. 508 ; 75 J. P. 5 : 27 T. L. E. 45
— D.
Fire Escape — Houses Belonging to Different
Owners Adapted by Tenant as One Factory —
"Owner."]— Four houses— 90, 88, 84, and 82
G. Road — had been adapted and were used by
one tenant as a boxraaking factory. The four
houses were let in sets of two by two different
owners, the respondent being the owner of
Nos. 90 and 88. To obtain fire escape facilities
for the factory workers by the provision of
an additional staircase, the London County
Council, under section 14, sub-section 2 of the
Factor}' and Workshop Act, 1901, summoned
the respondent as owner of the whole factory
to provide the required staircase : — Held, that
" owner " in section 14, sub-section 2, could
not be read as "owners." The prosecution
had been launched against the respondent as
owner of a factory consisting of four houses,
and it was sufficient to defeat it when it was
proved that he was only owner of part of the
factory. London Counhj Council v. Leyson,
110 L. T. 200; 78 J. P. 91; 12 L. G. R. 253
— D.
Per Darling, J. : Had the procedure been
taken, with the proper assents, under sec-
tion 149, sub-section 2, there was nothing to
prevent Nos. 90 and 88 being a separate fac-
tory, the owner of which, if it gave occupation
to more than forty people, could be compelled
to provide means of escape in case of fire. lb.
3. Liability to Actions.
See also Vol. IX. 899, 2314.
Injury to Servant — Negligence — Breach of
Statutory Duty — Liability of Factory Owner.]
— The Factory and Workshop Act, 1901, pro-
vides, by section 10, sub-section 1, that with
respect to the fencing of machinery in a
factory the following provisions shall have
effect :" Cc) All dangerous parts of the machinery
and every part of the mill gearing must either
be securely fenced or be in such position or of
such construction as to be equally safe to every
person employed or working in the factory as
it would be if it were securely fenced." A
workman in the employment of the defendants
was injured whilst working on a milling
machine in the defendants' factory. The
machine, which was constructed for working
downwards, was, on the direction of the defen-
dants' foreman, being worked by the plaintiff
in an upward direction, and no guard or fence
had been provided. In an action claiming
damages for negligence the jury found, in
answer to questions, that the milling machine
was in fact dangerous to the workman when
working upwards ; that it was so dangerous to
the knowledge of the defendants' authorised
agent ; that the accident was due to the
negligence of the defendants, and was due to
the dangerous part of the machinery not being
securely fenced : — Held, that the section im-
posed an unqualified obligation on the defen-
dants to provide proper fencing so as to make
the machinery safe to the workman in which-
ever direction it was used, and that as they
had failed to do so they were liable in damages.
Watkins v. Naval Colliery Co., Lim. (81 L. J.
K.B. 1056; [1912] A.C. 693), applied. Pursell
V. Clement Talbot, Lim., Ill L. T. 827;
79 J. P. 1— C.A.
E. Under the Employees and Workmen
Act.
See also Vol. IX. 901, 2318.
Breach of Contract by Workman — Claim by
Employer for Damages — Wages Due to Work-
man— No Claim put Forward by Workman —
Jurisdiction of Magistrate to Set off.] — A
Court of summary jurisdiction has power, under
the Employers and Workmen Act, 1875, to
adjust and set off damages awarded to an
employer against a workman against wages
due to the workman, although no " claim "
has been made for wages at the date of the
hearing of the summons. Keates v. Lewis
Merthyr Consolidated Collieries, 80 L. J. K.B.
1318 ; [1911] A.C. 641 ; 105 L. T. 450 ; 75 J. P.
505 ; 55 S. J. 667 ; 27 T. L. R. 550— H.L. (E.)
F. Under the Shops Act.
See also Vol. IX. 915, 2319.
1. Generally.
Limited Company Occupier of Shop.] — A
limited company which is the occupier of a
shop is liable to be convicted under section 4,
sub-sections 1 and 7 of the Shops Act, 1912,
for not closing the shop for the serving of
customers not later than one o'clock in the
afternoon on one weekday in every week.
Evans d Co. v. London County Council,
83 L. J. K.B. 1264; [1914] 3 K.B. 315;
111 L. T. 288 ; 78 J. P. 345 ; 12 L. G. R. 1079 ;
24 Cox CC. 290; 30 T. L. R. 509— D.
Two Closing Orders — Grocers and Provision
Dealers Closed on Thursdays — Butchers
Closed on Mondays — Dripping Sold both by
Butchers and by Grocers — Sale of Dripping
by a Butcher on a Thursday.] — Where an
article is sold in the ordinary course of two
different businesses having different closing
days under the Shops Act, 1912, the sale of
such article in the ordinary course of one
business on a day on which shops in which
the other class of business is carried on are
closed does not amount to a carrying on of
such other business by the vendor of the article
so as to render him guilty of an offence
against the Shops Act, 1912. Schuch v. Banks,
83 L. J. K.B. 1168; [1914] 2 K.B. 491;
111 L. T. 44; 78 J. P. 229; 12 L. G. R. 512;
24 Cox CC. 187 ; 30 T. L. R. 378— D.
No Day Fixed by Order of Local Authority
for Half-holiday — Day Agreed upon by Shop-
keepers— Change of Day.] — Where no weekly
half-holiday order has been made by a local
authority and the shopkeepers of a town have
themselves fixed the day and specified it in
notices affixed in their shops in accordance
969
MASTER AND SERVANT.
970
with section 4, sub-section 3 of the Shops
Act, 1912, a change of the day in one week
and the reversion in the subsequent week back
to the original closing day is a contravention
of the sub-section which goes on to enact that
" it shall not be lawful for the occupier of a
shop to change the day oftener than once in
any period of three months." Owen v. Parry,
79 J. P. 64; 12 L. G. R. 1228— D.
Bank Holiday — Christmas Day — Weekday
— Two Bank Holidays in One Week.] — H.
was employed as an assistant in the appellants'
shop on each weekday of the week ending
Saturday, December 21, 1912, after half -past
one. In the following week he was not em-
ployed on Christinas Day or the following day,
but was employed on every other weekday of
that week after 1.30 p.m. : — Held, it being
assumed that Christmas Day was a Bank
holiday within the meaning of the Shop Hours
Act, 1912, that the expression " Bank
holiday " in section 1, sub-section 1, must
be read in the singular only ; that the
expression " weekday " was used in contra-
distinction to Sunday, and not to holiday; and
that therefore the case came within the proviso
in sub-section 1, and the appellants could not
be convicted of the offence charged. Whether
Christmas Day is a Bank holiday within the
meaning of the Act, qucere. Todd, Burns <t
Co. V. Dublin Corporation, [1913] 2 Ir. R. 397
— K.B. D.
2. Shops.
Railway Bookstall.] — By section 1, sub-
section 1 of the Shops Act, 1912, '" On at least
one weekday in each week a shop assistant
shall not be employed about the business of
a shop after halt-past one o'clock in the after-
noon," and by sub-section 4, in case of any
contravention of the provisions of the section
the occupier of the shop is guilty of an offence
against the Act. The respondents were the
owners of a railway bookstall which was under
the control of one of their clerks. It was a
movable structure which would take an hour
and a half to take down and fix up again. It
was not separately rated. The respondents
had affixed to the bookstall the statutory notice
stating that Wednesday was taken as the half-
holiday. During a particular week the clerk
was engaged or otherwise employed at the
bookstall on every day of the week and did
not take the half-holiday, notwithstanding
tliat the respondents had sent him a notice
requiring him to do so : — Held (Phillimore J.,
and Bankes, J.; Avory, J., dissenting), that,
assuming the bookstall to be a " shop " within
tlie meaning of section 19 of the Act, an offence
had been committed under section 1, sub-
section 1, for which the respondents would be
liable unless they could bring themselves
within the provisions of section 14 by shewing
that the oilence had in fact been committed
by a " manager, agent, servant, or other
person." Ward v. Smith, 82 L. J. K.B. 941;
[1913] 3 K.B. 154; 109 L. T. 439; 77 J. P.
370; 11 L. G. R. 741; 23 Cox C.C. 562;
29 T. L. R. 536— D.
Sale by Automatic Machine.] — The shops
Act, 1912, enacts by section 4, sub-section 1,
that " Every shop shall, ... be closed for
the serving of customers not later than one
o'clock in the afternoon on one week day in
every week," and by section 9 that " It shall
not be lawful in any locality to carry on in
any place not being a shop retail trade or
business of any class at any time when it
would be unlawful in that locality to keep
a shop open for the purposes " of such retail
trade or business. The respondent, a dairy-
man, had had affixed to the door of his shop
an automatic machine, from which by the
insertion of a penny in a slot and the turning
of a handle any person in the street outside
the shop could obtain milk during the hours
in which under the Act the shop had to be
closed. The milk thus procured was con-
tained in a reservoir situated within the shop.
This reservoir was filled with a supply of milk
before the hour of closing, and the attendance
of a shop assistant after the closing hour was
unnecessary. The door of the shop was locked,
and no customer could obtain entrance to the
shop. The respondent was summoned for
offences, first, under section 4, sub-section 1,
and, secondly, under section 9 : — Held, that
the place where the sale of milk occurred was
a " shop " within the meaning of the Act, and
therefore that section 9 had no application.
Held, also (Avory, J., dubitante), that as
regards section 4, sub-section 1, there was
present no element of personal service on a
customer which, in view of the object of the
Act being to insure a weekly half-holiday for
shop assistants, would be necessary before
there could be a " serving of customers "
within the section, and that, consequently,
there was no offence under the section.
Willesden Urban Council v. Morgan, 84 L. J.
K.B. 373; [1915] 1 K.B. 349; 112 L. T. 423;
79 J. P. 166; 13 L. G. R. 390; 59 S. J. 148;
31 T. L. R. 93— D.
Employment about Business of Shop —
"A" Shop.] — Three assistants, employed in
one of the shops of Lipton, Lim., of which the
appellant was manager, volunteered to dis-
tribute handbills in the streets and at houses
" in their spare time." Their offer was
accepted and they were paid for this service.
They in fact distributed the bills on the weekly
half-holiday rendered obligatory by the Shops
Act, 1912. The bills advertised " Lipton 's
Margarine Overweight," and contained a state-
ment that " We sell " this margarine at
specified prices ; but they contained no address
of any particular shop or shops : — Held, that
the assistants were " employed about the busi-
ness " of the shop in question within the
meaning of section 1, sub-section 1 of the Act,
which prohibits such employment on the said
half -holiday, and that the words " a shop " in
the sub-section mean the shop in which the
assistant in question is an assistant within the
meaning of the Act. George v. James, 83 L. J.
K.B. 303; [1914] 1 K.B. 278; 110 L. T. 316;
78 J. P. 156 ; 12 L. G. R. 403 ; 24 Cox C.C. 48 ;
30 T. L. R. 230— D.
3. Trading Elsewhere than in Shop.
Carrying on Retail Trade in a Place not a
Shop at a Time when it would be Unlawful
971
MASTER AND SEEVANT.
972
to Keep a Shop Open.] — The respondent sold
groceries on Wednesday afternoon after 1 p.m.,
in her house, which on all the other days of
the week was used solely as an ordinary
dwelling house. Under an order made by the
local authority all shops to which the order
applied were obliged to close for serving
customers on Wednesday in each week from
1 P.M., but the order contained a proviso that
the occupier of a shop might elect to close his
shop for the weekly half-holiday on a Saturday
instead of Wednesday. No notice under the
Shops Act was affixed to the respondent's
house : — Held, that the respondent had com-
mitted the offence under section 9, sub-section 1
of the Shops Act, 1912, of carrying on a retail
trade in a place not a shop at a time when it
would be unlawful to keep a shop open for the
purposes of retail trade, and that the fact that
the occupier of a shop could elect to close
his shop on a Saturday instead of Wednesday
afforded no answer to the charge. Cowden v.
McEvoy. 83 L. J. K.B. 1249: [1914] 3 K.B.
108 ; 111 L. T. 549 : 24 Cox C.C. 377 ; 78 J. P.
336; 12 L. G. E. 1216— D.
Sale by Automatic Machine Fixed to Door
of Shop.] — See Wille.sden Urban Council v.
Morgan, ante, col. 970.
4. Shop Assistants.
Kitchen Maid in Restaurant — Employment
" in connection with the serving of customers "
— "Shop" — "Shop assistant."] — The appel-
lant kept a restaurant, and employed a kitchen
maid in the kitchen, W'hich was connected with
the restaurant and on the same level with it.
She attended to the fires, washed the china and
dishes, and prepared vegetables for cooking
for the customers : — Held, that there w-as
evidence upon which the magistrate could find
that the restaurant and the kitchen together
formed one shop, and that the kitchen maid
was a shop assistant employed about the
business of a shop within the meaning of
section 1, sub-section 1 of the Shops Act, 1912,
because employed therein in connection with
the serving of customers within the meaning
of section 19, sub-section 1. Melhuish v.
London Countjj Council, 83 L. J. K.B. 1165;
[1914] 3 K.B. 325 ; 111 L. T. 539 ; 24 Cox C.C.
353; 78 J. P. 441; 12 L. G. E. 1086;
30 T. L. R. 527— D.
Licensed Premises — Potman " Person . . .
mainly employed ... in connexion with the
serving of customers."] — The appellant, the
licensee of licensed premises, employed a pot-
man, who w-as mainly employed in putting up
tables for customers' dinners and taking them
down again ; cleaning knives in so far as they
were for subsecjuent use at the customers'
tables ; polishing pewter and copper measures
used thereafter for measuring or serving out
drinks to customers; collecting glasses, after
they had been used by customers, from various
parts of the liar for cleaning by the barmen ;
and cleaning and tidying the premises for use
for customers at various times of the day : —
Held, that each of these employments was
sufficiently proximate to the serving of cus-
tomers to justify the finding of the magistrate
that the potman was employed in connection
with the serving of customers, and was there-
fore a shop assistant within the meaning of
section 1, sub-section 1, and section 19, sub-
section 1 of the Shops Act, 1912, and conse-
quently that the appellant was bound to allow
him a half-holiday on one weekday in each
week. Prance v. London County Council,
84 L. J. K.B. 623; [1915] 1 K.B. 688;
112 L. T. 820; 79 J. P. 242; 13 L. G. E. 382;
31 T. L. R. 128— D.
5. Exemptions.
Area — Resolution of Local Authority that
Area not "unreasonably small" — Majority
of Shopkeepers in Favour of Exemption.] —
On April 3, 1912, a local authority resolved
that area A was unreasonably small for the
purposes of an exemption order under section 4,
sub-section 4 of the Shops Act, 1912. On
June 5 they resolved that area B, which was
smaller than and contained within area A,
should be exempted. In the latter part of
June a poll of the shopkeepers in area B was
taken, which resulted in a majority in favour
of exemption. On July 3 the local authority
rescinded the resolution of June 5, and no
exemption order was made. It was contended,
in support of a rule nisi ordering the local
authority to grant an exemption order, that,
there being a time when the two necessary
conditions precedent were fulfilled, the local
authority were bound to grant an exemption
order : — Held, that under the circumstance^
the Court in its discretion would not issue a
mandamus to the local authority to make an
exemption order. Rex v. Manchester City
Council: Batty, Ex parte, 107 L. T. 617;
77 J. P. 43; 10 L. G. E. 1081; 29 T. L. R. 28
-D.
Exempted Trade — Confectioners Making
and Selling Sausages as Incidental to their
Main Business — Pork Butchers.] — By the
Exempted Shops (Weekly Half-holiday) Brad-
ford Order, 1912, made by the council of that
city, the provisions of section 4 of the Shops
Act, 1912, were extended to such parts of
the retail trade or business of (among others)
pork butchers as were exempted by sub-sec-
tion (6) of that section and the Second Schedule
to the Act ; and pork butchers were ordered
to close their shops on and after 1 p.m. on
Wednesday in each week throughout the
year. The respondents were confectioners and
refreshment-room proprietors, and, besides sell-
ing confectionery on and off the premises, made
sausages composed of pork, bread, and other
materials. On a Wednesday afternoon they
sold some pork sausages to a customer, not
to be consumed on the premises, and were
summoned for keeping their shop open for
the trade or business of a pork butcher after
1 P.M., contrary to the statute and the Order :
— Held, that the respondents had not con-
travened the Order. The case was not one of
more than one trade carried on in their shop.
Upon the findings of the Justices their main
trade was that of confectioners — an exempted
trade — and as incidental to that trade they
sold sausages. By doing so they did not
become pork butchers. Margerison v. Wilson,
973
MASTER AND SERVANT.
974
112 L. T. 76; 79 J. P. 38; 12 L. G. R. 1098
— D.
Sale of Run Honey — " Confectionery " —
Sale of Butter — " Articles of a perishable
nature."] — By section 4, sub-section 1 of the
Shops Act, 1912, every shop, save as otherwise
provided by the Act, must be closed for the
serving of customers not later than one o'clock
in the afternoon on one weekday in every week.
By sub-section 6 of section 4 the section is not
to apply to any shop in which the only business
carried on is. under Schedule II., the sale of
{inter alia) " confectionery '" or "articles of
a perishable nature " : — Held, that butter is
an article of a perishable nature and
(Ridley, J., dissentienie) that run honey —
that is, honey which has been run from the
comb without mixture or any process except
extraction — is not confectionery within the
meaning of the schedule, and that a shop — in
which the notices required by section 10, sub-
section 1, and the Shops Regulation Order,
1912, have not been exhibited — selling both
these articles was not exempt under sub-
section 6. London County Council v. Welford's
Surrey Dairies, 82 L. J. K.B. 669; [1913]
2 K.B. 529; 108 L. T. 998; 77 J. P. 206;
11 L. a. R. 831 ; 23 Cox C.C. 428 ; 29 T. L. R.
438— D.
" Sale of motor, cycle, and aircraft supplies
and accessories to travellers."] — The words
" sale of motor, cycle, and aircraft supplies
and accessories to travellers " in the Second
Schedule of the Shops Act, 1912, refer to the
sale of supplies and accessories to travellers
relating to motors, cycles, or aircraft, and not
to the sale of all supplies and accessories to
travellers. Williams v. Gosden, 83 L. J.
K.B. 77; [1914] 1 K.B. 35; 109 L. T. 870;
77 J. P. 464; 11 L. G. R. 1174; 23 Cox CO.
655; 58 S. J. 49; 30 T. L. R. 4— D.
II. RIGHTS AND LIABILITIES OF
MASTER AND THIRD PARTIES.
A. Rights of Master.
See also Vol. IX. 916. 2320.
Seduction — Wife Living Yfith Husband —
Girl Adopted by Wife — Girl Rendering
Domestic Services — Right of Wife to Main-
tain Action.] — The plaintiff, a nuirried woman
living witli her husband, adopted a girl, w'ho
lived in the house and performed the ordinary
domestic services. The plaintiff gave the girl
5s. a week for pocket money and supplied her
with clothes, the plaintiff's husband providing
the money. In an action by the plaintiff
against the defendant for the seduction of the
girl, — Held, that in order to maintain an
action for seduction the relation of master
and servant must .subsist between the plaintiff
and the person seduced, that the domestic
services rendered by the girl must be taken
to have been rendered to the plaintiff's hus-
band, and that the i)laintiff was not entitled
to maintain the action. Hamilton v. Long
([1903] 2 Ir. R. 407: [1905] 2 Ir. R. 552)
approved and followed. Peters v. Jones,
83 L. J. K.B. 1115: [1914] 2 K.B. 781;
110 L. T. 937 ; 30 T. L. R. 421— Avory, J.
Loss of Service — Service at Time of
Seduction — Service at Time of Confinement.]
— In an action by a father to recover damages
for the seduction of his daughter, it appeared
that the daughter had been engaged by the
defendant's wife as a domestic servant, one of
the terms of the employment being that during
any absence from home of the defendant's wife
the girl was to return to her father's house
and remain there unless called on to perform
household duties in the defendant's house.
During one of these periods of absence she
was called to the house by the defendant and
there seduced by him. She was subsequently,
while in the service of the defendant's wife,
confined of a child, the confinement taking
place in the defendant's house : — Held, that
a verdict directed for the defendant was sus-
tainable— per O'Brien, L.C., on the ground
that the girl was not in the service of the
plaintiff at the time when the confinement
took place; per Cherry, L.J., on the ground
that she was not in the plaintiff's service at
the time of the seduction; per Holmes, L.J.,
on either of these grounds. Barnes v. Fox,
[1914] 2 Ir. R. 276— C.A.
Employing a Person in Breach of His Con-
tract of Service vfith another Employer —
Damages.] — Where A under a contract of
service with B for a term of years wrongfully
leaves and in breach of the obligation of such
contract before the end of the term enters the
service of C and is employed by him v.-ith a
knowledge of A"s contract with B, C is liable for
the damages occasioned by reason of A leaving
his employment and being employed by C,
in breach of his agreement with B. De Fran-
cesco V. Barnum {No. 2) (60 L. J. Ch. 63;
45 Ch. D. 430) followed. Wilkins, Lim. v.
Weaver, 84 L. J. Ch. 929; [1915] 2 Ch. 322
— Joyce, J.
B. Liability of Master.
See also Vol. IX. 928, 2324.
Negligence of Servant — Scope of Employ-
ment— Servant having General Authority to
take out Motor Cars belonging to Employer.]
— I., the manager of the department for the
sale of secondhand motor cars in the defendant
firm, while driving on a Saturday evening in a
secondhand motor car belonging to the defen-
dants, ran over and killed G. B. In an action
by G. B.'s widow against the defendants,
under Lord Campbell's Act, evidence was
given that I. frequently took out secondhand
cars from tlie department of the business of
which he was the manager without accounting
to any one for so doing, and that the petrol
used by I. in so taking out these cars was
charged to the secondhand department of the
business. I. admitted that he took out the
cars without accounting for so doing, and in
his evidence he stated that his being on the
road gave him better opportunities for doing
business for the firm : that on one or two
occasions, of which that of the accident was
not one, he had himself paid for the petrol he
975
MASTER AND SERVANT.
976
used in taking out the cars, but that upon the
occasion of the accident he was driving solely
for his own pleasure. The jury found that at
the time of the accident I. was acting within
the scope of his employment as the servant
of the defendants : — Held, that there was
evidence to justify the verdict, and that the
defendants were liable. Boyle v. Ferguson,
[1911] 2 Ir. E. 489— K.B. D.
Qucere, whether, where a servant has a
general authority to take out his master's
vehicles, not only for the purposes of the
master, but also for his own pleasure, it is to
be inferred that every user of the vehicles
under such general authority is a user by the
servant as such within the scope of his
employment. lb.
Servant under Control of Manager —
Unauthorised Order Given to Servant by
Manager — Duty of Servant to Obey Manager
— Act Done in Course of Employment.] — A
driver in the employment of the defendants,
who let out motor cars for hire, was ordered by
the defendants' manager to drive him in a car
to a named destination on his (the manager's)
private business. The manager had no autho-
rity, without the permission of the defendants,
to give the order in question. The driver was
not aware that the manager had given him an
order which the latter had no right to give,
but it was his duty to obey orders as to driving
given by the manager. The driver, whilst
carrying out the manager's order, caused injury
to the plaintiff by negligent driving. In an
action by the plaintiff to recover damages for
the injuries sustained by him, — Held, that, it
being the duty of the driver to obey an order
given by the manager with regard to driving,
the negligent act done by him was an act done
in the course of his employment, and conse-
quently the defendants were liable for his
negligence. Irwiyi v. Waterloo Taxicah Co.,
81 L. J. K.B. 998; [1912] 3 K.B. 588;
107 L. T. 288: 56 S. J. 720; 28 T. L. R. 567
— C.A.
Motor Omnibus Driven by Conductor —
Driver Seated beside Conductor — Duty to Con-
trol Driving.] — A motor omnibus belonging
to the defendants, having arrived at the end
of one of its journeys, was being driven by
the conductor to the point at which it was to
commence its return journey, and the driver
was sitting on the box beside the conductor.
Owing to the negligent driving of the con-
ductor the omnibus mounted the pavement
and caused personal injuries to the plaintiff,
who brought an action against the defendants
for damages for these injuries. At the trial
the Judge held that the fact that the conductor
was driving tlie omnibus was no evidence that
he had authority from the defendants to drive
it, that the fact that the driver was sitting
beside the conductor was no evidence that he
was exercising control over the driving within
the scope of his authority as driver, and that
there was thus no evidence that the accident
had been caused by the negligence of any
servant of the defendants acting within the
scope of his authority, and he therefore with-
drew the case from the jury and gave judgment
for the defendants : — Held, on appeal, that the
fact that the driver was sitting beside the
conductor was some evidence to shew that he
was exercising control over the driving within
the scope of his authority as driver, that the
questions ought to have been left to the jury
whether the driver was exercising such control,
and whether the accident arose from any failure
on his part to exercise such control properly,
and that there ought to be a new trial of the
action. Hicketts v. Tilling, Lini., 84 L. J.
K.B. 342; [1915] 1 K.B. 644; 112 L. T. 137:
31 T. L. R. 17— C.A.
Engelhart v. Farrant .f Co. (66 L. J. Q.B.
122; [1897] 1 Q.B. 240) considered and
applied. Beard v. London General Omnibus
Co. (69 L. J. Q.B. 895; [1900] 2 Q.B. 530)
and Gwilliam v. Tivist (64 L. J. Q.B. 474;
[1895] 2 Q.B. 84) considered and distinguished.
lb.
Assault by Tramway Conductor — Mis-
taken Impression.] ^ — A tramway conductor in
the employment of the defendants ran after
and injured the plaintiff, a boy of nine years
of age, under the mistaken impression that he
was one of several boys who had been in the
habit of jumping on to his car. It was ad-
mitted that the act of the conductor was done
not to prevent the plaintiff from there and then
entering the car or otherwise infringing the
defendants' by-laws, or to prevent other boys
from doing so, but to punish the plaintiff or
other boys who had broken the by-laws with
a view to prevent them doing so in the future.
The plaintiff sued the defendants to recover
damages for the injuries he had received : —
Held, that the act of the conductor was not
done within the scope of his authority, and
therefore that the defendants were not liable.
Abrahams v. Deakin (60 L. J. Q.B. 238;
[1891] 1 Q.B. 516) followed and applied.
Radley v. London County Council, 109 L. T.
162; 11 L. G. R. 1035; 29 T. L. R. 680— D.
Passenger in Tramcar Suspected of
Avoiding Payment of Fare — Ejected by Con-
ductor — Action for Assault — Liability of
Tramway Authority.] — The conductor of a
tramcar belonging to the respondents, a tram-
way authority, thinking that the appellant,
a passenger in the car, was attempting to
avoid payment of his fare, ejected him from
the car with such force that he suffered injuries.
The appellant brought an action in the
County Court against the respondents, claim-
ing damages for the assault committed on him
by their servant. The respondents denied
their liability on the ground that sections 51
and 52 of the Tramways Act, 1870, and their
by-laws gave them power to detain and bring
before a magistrate, who might impose a fine
on a person who had committed the offence
alleged against the appellant, but that they
had no power to eject such a person from a
car, and could not therefore delegate the power
to eject him to their servant, who had acted
outside the scope of his authority : — Held,
on appeal, that the remedies given to the
respondents by sections 51 and 52 of the
Tramways Act, 1870, being in addition to, and
not exclusive of, their common law right as
owners of the tramcar to eject a trespasser
from their property, using no more force than
977
MASTER AND SERVANT— MEASURE.
978
might be necessary for the purpose, the
respondents had power to eject from one of
their cars a person who refused to pay his
fare ; that they could delegate that power to a
servant ; that the tort of the conductor was
consequently committed in the course of his
service ; and that the appellant was therefore
entitled to recover his claim against the
respondents. Whittaker v. London County
Council, 84 L. J. K.B. 1446; [1915] 2 K.B.
67fi; 79 J. P. 437; 13 L. G. E. 950;
31 T. L. R. 412— D.
Knife Left About by Gas Inspector —
Injury to Infants.] — The plaintiff, a boy of
three or four, was injured while playing with
an open knife which had been left about by
y., who was a gas inspector and not a repairer
of meters, who had been called to the plaintiff's
father's house to remedy an automatic gas
meter, and had gone away to get proper tools
to repair it. In respect of his injuries the
plaintiff sued the defendants. The jury found
that the inspector ought not reasonably to have
anticipated that if he left the knife where he
did some such accident as happened might
result therefrom ; that it was negligence on
the inspector's part to leave the knife where he
did ; that the accident was caused by such
negligence ; that the act done by the inspector
was done by him in the course of his employ-
ment ; and that those in charge of the plaintiff
were not negligent : — Held, that there was no
evidence to support the finding that the in-
spector was acting in the course of his employ-
ment, and that the defendants were not liable
to the plaintiff. Forsyth v. Manchester Cor-
poration, 107 L. T. 600; 76 J. P. 465;
29 T. L. R. 15— C. A.
Person Injured while Assisting Servant
— Authority of Servant to Invite Assistance —
Emergency.] — The plaintiff, at the invitation
of the defendant's servant, got into a cart
belonging to the defendant for the purpose of
rendering assistance to another servant of the
defendant, who had l)een injured. The servant
tlien negligently caused the horse to start, and
the plaintiff was thrown out and injured. The
plaintiff claimed damages against the defen-
dant : — Held, that the servant had no implied
authority, as the result of the emergency which
had occurred, to invite the plaintiff into the
cart, and that the defendant was not liable.
Cox V. Midland Railway (18 L. J. Ex. 65 ;
sub nom. Cox v. Midland Counties Railway,
8 Ex. 268) followed. Houghton v. Pilkington,
82 L. J. K.B. 79; [1912] 3 K.B. 308;
107 L. T. 235; 56 S. J. 633; 28 T. L. E. 492
— D.
Contractor and Sub-contractor — Injury
by Negligent Act of Sub-contractor's Servant
—Liability of Contractor. 1— The defendants
were employed to en>ct certain premises, and
the contract involved the employment by the
defendants of sub-contractors to execute the
special work of putting metallic casements into
the windows. While one of these casements
was being put in, an iron tool was placed by a
servant of the sub-contractors on the window
sill ; and the casement having been blown to
by the wind, the tool fell and struck the plain-
tiff, who was passing along the street. The
tool was not placed on the window sill in the
normal course of doing the work which the sub-
contractors were employed to do. The plain-
tiff sued the defendants, claiming damages in
respect of his injuries : — Held, that the injuries
were caused to the plaintiff by an act of
collateral negligence on the part of a workman
who was a servant of the sub-contractors and
not of the defendants, and that the latter were
therefore not liable for the consequences of
that negligence. Padbury v. Holliday and
Greenwood, 28 T. L. R. 494— C. A.
Liability of Corporation for Slander by Ser-
vant— Scope of Employment — Relevancy of
Averments.] — An employer is not liable in
damages for the conduct of a servant which is
outside the scope of the servant's employment.
A rate collector of the appellants, in demand-
ing payment of an instalment of rates due by
the respondent's husband, requested the pro-
duction of the receipts of the previous instal-
ments. These were shewn, and the collector,
in the presence of a third person, said that
one of the receipts had been fraudulently
altered : — Held, that this statement was not a
relevant averment in an action for slander
against the corporation, it being no part of a
rate collector's duty to express an opinion of
the conduct of the persons with whom he had
to deal in the course of his work. Glasgow
Corporation v. Lorimer, 80 L. J. P.O. 175 ;
[1911] A.C. 209; 104 L. T. 854— H.L. (Sc.)
Fraud of Servant.] — A master is not liable
in respect of the fraudulent appropriation of
money by his servant unless the servant had
actual authority from the master to accept the
money, or the master has held out the servant
as having such authority and the person
entrusting the money to the servant reasonably
believed the servant to have authority and
relied upon it. Terrill v. Parker, 82 T. L. R.
48— Lush, J.
Dishonest Servant — Ratification of Acts.]
— Eatification of the acts of a dishonest ser-
vant must be presumed when the master has
had cause to suspect the servant's honesty and
has refrained from making full enquiry into
the facts. Morison v. London County and
Westminster Bank, 83 L. J. K.B. 1202 ; [1914]
3 K.B. 856; 111 L. T. 114: 19 Com. Cas. 273;
58 S. J. 453 ; 30 T. L. R. 481— C.A.
MAXIMS.
" Nemo debet bis vexari pro una et eadem
causa."] — See Rex v. Simpson; Smithson,
Ex parte, ante, col. 786.
MEASURE.
Of Damages.] — See Dam.^ges.
979
ME AT— MEDICINE .
980
MEAT.
Unsound Meat.] — See Local Government;
Metropolis.
MEDICINE.
A. Medical Practitioners.
1. Physicians and Surgeons, 979.
2. Dentists, 979.
B. Veterinary Surgeons, 980.
C. Pharmacy Acts. 981.
D. Midlives, 981.
A. MEDICAL PEACTITIONEES.
1. Physicians and Surgeons.
See also Vol IX. 999. 2341.
Unauthorised Post-mortem Examination.]
— In an action of damages brought against a
doctor by the widow and children of a deceased
miner the pursuers averred — first, that the
defender had made an unauthorised post-
morteni examination of the body of the
deceased; and secondly, that in consequence of
the method in which it had been performed
and of certain other actings of the defender,
difficulty, delay, and expense had been incurred
in prosecuting a claim under the Workmen's
Compensation Act. Some of the pursuers were
not persons entitled to compensation under the
Act : — Held, that while the action was com-
petent in so far as founded on the wrong done
to all the pursuers jointly by the unauthorised
post-mortem examination, it was incompetent
in so far as founded on the second wrong,
which affected certain of them only. Hughes
V. Robertson. [1913] S. C. 394— Ct. of Sess.
Fees — Custom to Attend Family of De-
ceased Medical Man without Fee.] — Although
there is not a binding custom, there is a very
general practice among medical men not to
charge the widow and children of a deceased
medical man for attendance. If, therefore, a
doctor intends to charge in such a case he
must say so, and thus give the patient the
opportunit}- of declining his services and of
going to another doctor who will not charge.
Corbin v. Steicart. 28 T. L. R. 99— Scrutton. J.
2. Dentists.
See also Vol. IX. 1000, 2342.
Unregistered Person — Description — Using
Name or Title Implying Registration.] — By
section 3 of the Dentists Act. 1878. " a person
shall not be entitled to take or use the name or
title of ' dentist "... or of ' dental practi-
tioner,' or any name, title, addition, or descrip-
tion implying that he is registered under this
Act or that he is a person specially qualified
to practise dentistry, unless he is registered
under this Act." The appellant, a school-
master under the London County Council,
went to a dental institute carried on by the
respondent, an unregistered person, and
shewed an operator there a form which he had
received from the Council stating that it would
be necessary for the appellant to obtain a
dental certificate shewing that his teeth were
in a satisfactory condition, and concluding with
the words " only the certificate of a Registered
Dentist can be accepted." The appellant had
some teeth extracted. Two days afterwards
he went again to the institute and saw
the respondent, to whom he handed the form.
The respondent stated that he had granted
hundreds of such certificates and that he would
give the appellant the certificate required when
he returned on a subsequent date. The respon-
dent did not in writing or orally use the name
or title of dentist. Upon an information charg-
ing the respondent with an offence under
section 3 of the Dentists Act. 1878, the magis-
trate declined to convict : — Held, that there
was evidence that the respondent had used a
name, title, or description implying that he
was registered under the Act, and that the
magistrate ought to have convicted him.
Robertson v. Hawkins, 82 L. J. K.B. 97;
[1913] 1 K.B. 57; 107 L. T. 795; 77 J. P. 63;
23 Cox C.C. 239; 29 T. L. R. 3^— D.
" The United Dental Service, Limited "
— Registrar of Joint-Stock Companies — Dis-
cretion to Register.] — Application was made
to the Registrar of Joint-Stock Companies to
register the memorandum and articles of
association of a company called " The United
Dental Service, Limited," which proposed to
carry on the business of practitioners in
dentistry. The signatories to the memorandum
and articles were all unregistered practitioners
in dentistry. The Registrar refused to register,
on the ground that the object of the company
was not lawful : — Held, that the words
" United Dental Service " were not a descrip-
tion implying that the persons using it were
qualified by diploma, &c., to be or were
registered under the Dentists Act, 1878, and
that, consequently, the object of the company
was not unlawful. Held, further, that the
Registrar had no discretion to refuse to register,
on the ground that, even though not unlawful,
the title of the company was calculated to
mislead the public into the belief that the
persons using the title were so qualified.
Bellerbji v. Heyworth (79 L. J. Ch. 402;
[1910] A.C. 377) and Minter v. Snow (74 J. P.
\ 257) applied. Panhaus v. Broicn (68 J. P. 435)
commented on. Rex v. Registrar of Joint-
j Stock Companies ; Botcen. E.r parte, 84 L. J.
K.B. 229; [1914] 3 K.B. 1161; 112 L. T. 38;
I 30 T. L. R. 707— D.
I
B. VETERINARY SURGEONS.
See also Vol. IX. 1009, 2345.
Description — Unqualified Person — Descrip-
tion of Business Premises — "Canine sur-
gery."]— By section 17, sul)-section 1 of the
Veterinary Surgeons Act, 1881, " If . . . any
person, other than a person who for the time
being is on the register of veterinary surgeons.
981
MEDICINE— MEEGEE ,
982
or who at the time of the passing of this Act
held the veterinary certificate of the Highland
and Agricultural Society of Scotland, takes or
uses . . . any name, title, addition, or descrip-
tion stating that he is a veterinary surgeon or
a practitioner of veterinary surgery or of any
branch thereof, or is specially qualified to
practise the same, he shall be liable to a
fine. ..." The respondent, who had neither
of the specified qualifications, exhibited over
the door of his premises a red-glass lamp on
which were the words " A. E. Kennard, Canine
Surgery " : — Held, that the words so used
were merely a description of the respondent's
premises, and did not amount to a statement
that he was " specially qualified to practise "
veterinary surgery within the meaning of the
sub-section. Boyal College of Veterinary Sur-
geons V. Kennard, 83 L. J. K.B. 267; [1914]
i K.B. 92; 109 L. T. 866; 78 J. P. 1;
23 Cox C.C. 645 ; 30 T. L. R. 3— D.
C. PHARMACY ACTS.
See also Vol. IX. 1009, 2346.
Poisons — Insecticide — Sale by Unlicensed
Assistant of Qualified Person.] — The effect of
section 2 of the Poisons and Pharmacy Act,
1908, is to add to the category of persons who
may sell poisons persons licensed by a local
authority under that section, but it does not
confer upon an unlicensed assistant of such a
licensed person the right to sell a poisonous
substance mentioned in the section on behalf
of his master. Pharmaceutical Society v.
Nash, 80 L. J. K.B. 416: [1911] 1 K.B. 520;
103 L. T. 802; 75 J. P. 151; 55 S. J. 156;
27 T. L. R. 147— D.
Sale in Unlabelled Receptacle by Person
Registered by Local Authority — Civil Lia-
bility of Person Selling.] — \\'liere a person
wlio is licensed by a local authority under the
Poisons and Pharmacy Act, 1908, to sell
poisonous substances to be used exclusively
in agriculture or horticulture sells such sub-
stances in breach of the regulations made
under section 2 of that Act, by selling them in
receptacles not duly labelled, he may be sued
in the County Court, under section 15 of the
Pharmacy Act, 1868, for the statutory penalty
or sum of 51. imposed by that section in
respect of the sale of poison by an unregis-
tered person. Pharmaceutical Society v. Jacks,
80 L. .J. K.B. 767; [1911] 2 K.B. 115;
104 L. T. 640; 75 J. P. 351; 27 T. L. R. 373
— D.
D. MIDWIYES.
See also Vol. IX. 2347.
Removal of Name from Roll — Midvifife
Alleged to be Living in Adultery — "Mis-
conduct " — Hearing by Central Midwives
Board — Evidence Considered in Breach of
Statutory Rules.] — Misconduct in a midwife
witliiii the iiicMiiing of section 3, V. of the
Midwives Act, 1902, justifying the removal
of her name from the roll of mi<lwivcs, is
not confined to misconduct in the discharge
of her duties as a midwife, but must be such
as in the opinion of the Central Midwives
Board tends to unfit her for the performance
of those duties. Hence, to live in adultery
may be such misconduct, and the board is
the body most fit to deal with each case as
it arises. Stock v. Central Midioives Board,
84 L. J. K.B. 1835; [1915] 3 K.B. 756;
113 L. T. 428 ; 79 J. P. 397 ; 13 L. G. R. 1227 ;
31 T. L. R. 436— D.
The board, in dealing with a charge of
misconduct against a midwife, considered
evidence in her absence which was not, as
required by the rules made by them under
section 3, I. (a) of the Act, verified by
statutory declaration, and of which no copy
had been served on her; and, influenced by
that evidence, removed her name from the roll
of midwives : — Held, that the decision could
not stand. 7b.
Semble, an appeal from the decision of the
board to the High Court under section 4 of
the Act is as full a right of appeal as is given
by any statute to the Court, and the Court is
absolutely unfettered in any investigations
it may think it right to make on such an
appeal. 76.
MEETING.
See WAY.
MENTAL DEFICIENCY.
See LUNATIC.
MERCHANDISE MARKS.
See TRADE MARK.
MERGER.
See also Vol. IX. 1013, 2348.
Devise to Widow for Life — Remainder to
Son — Executory Gift over on Death of Son —
Conveyance of Life Interest to Son — Death of
Son in Lifetime of his Mother.l — A testator
devised a farm to his widow for life, with re-
mainder to his son in fee, with an executory
gift over in case his son died unmarried in the
lifetime of his mother. The widow conveyed
her life interest to her son, who afterwards died
unmarried in the lifetime of his mother : —
Held, that the fact that the executory gift over
took effect before the determination of the life
estate did not prevent a merger, and that there
983
MERGEE— METROPOLIS.
984
had been a merger both at law and in equity.
Attkins, In re; Life v. Attkins, 83 L. J. Ch.
183 ; [1913] 2 Ch. 619 : 109 L. T. 155 ; 57 S. J.
785— Eve, J.
Extinguishment of Charge on Inheritance —
Estate for Life and Ultimate Remainder in
Fee — Interposed Contingent Remainder in
Favour of Issue — Possibility of Issue Extinct.]
— Lands were limited by will to A for life,
with remainder to her issue as she should
appoint, with remainder as she should appoint
generally, with an ultimate remainder to A
in fee. On the testator's death A also became
absolutely entitled to a charge on the lands.
A died a spinster, aged over seventy years,
having by her will devised her real estate
and bequeathed her personal estate to different
persons without mention of the charge, and
without having indicated any intention during
her life either to keep the charge subsisting
or to extinguish it : — Held, that A had, at the
date of her death, such an estate in the lands
as to admit of the making of the presumption
that the charge had become extinguished, and
that, as it was a matter of indifference to
her during her life whether the charge was
kept subsisting or not, the presumption of
extinguishment should be made. Toppins
Estate, In re, [1915] 1 Ir. E. 330— C.A.
Settled Land — Incumbrances — Payment ofif
by Tenant for Life out of Income — Intention
to Keep Charge Alive.] — In 1904 the plaintiff
became entitled as tenant in tail to the family
estates, which were subject to heavy incum-
brances. With his consent a considerable part
of the income was applied in the reduction of
the charges. In February, 1909, the plaintiff
came of age and disentailed and re-settled the
estate, becoming the first tenant for life. The
same course as to payment off of incumbrances
out of income was continued : — Held, that the
presumption in favour of a limited owner who
pays off incumbrances had not been rebutted,
and that the payments out of income were
a charge on the inheritance in favour of
the plaintiff. Williams v. Williams-Wynn,
84 L. J. Ch. 801— Eve, J.
METROPOLIS.
A. Authorities.
1. London County Council, 984.
2. Metropolitan Borough Councils, 984.
B. Transfer of Areas, 985.
C. Jurisdiction.
1. Streets. 986.
2. Buildings.
a. General Line, 987.
b. Notice to Set Back, 990.
c. Party Walls, 990.
d. Protection from Fire, 990.
e. Surveyor's Powers and Duties, 992.
/. Consent of Local Authority, 993.
g. Dangerous Structures, 994.
3. Sewers and Drains, 995.
4. Employment Agency, 999.
5. Unsound Food, 999.
6. Smoke, 1000.
7. Lodging Houses, 1000.
D. Eates, 1001.
A. AUTHOEITIES.
1. London County Council.
See also Vol. IX. 1042, 2356.
Powers — Drainage Works in, over, or under
the River Thames — Interference with Navi-
gation.]— The Metropolis Management Act,
1858, is a subsisting enactment relating to
the main drainage of London. The London
County Council are entitled, by virtue of the
Metropolis Management Amendment Act,
1858, to construct works in, over, or under the
Eiver Thames. London County Council v.
Port of London Authority, 84 L. J. Ch. 20;
[1914] 2 Ch. 362 ; 12 L. G. E. 911 ; 30 T. L. E.
406 — Warrington, J.
Offensive Business — Sanitary Authority —
Failure to Institute Proceedings — Proceedings
by London County Council — Liability of
Sanitary Authority for Expenses.] — Where a
borough council have made default in institut-
ing proceedings against a person for an offence
under section 19 of the Public Health (London i
Act, 1891, the London County Council may,
under section 100, take such proceedings, and
may, where the proceedings are successful,
recover from the borough council all such
expenses as they may incur and may not have
recovered from any other person. London
County Council v. Bermondsey Borough Coun-
cil, 84 L. J. K.B. 1699; [1915] 3 K.B. 305;
113 L. T. 743; 13 L. G. E. 987 ; 79 J. P. 449
— D.
2. Metropolitan Borough Councils.
See also Vol. IX. 2357.
Borough Council Officer — Superannuation —
Person " designated an officer in an estab-
lished capacity by a resolution of the Council "
— Warrant Officer — Absence of Resolution
"designating" him an Officer— Eligibility for
Pension.] — The St. Marylebone Borough
Council (Superannuation) Act, 1908, provides
a scheme under which every officer of the
council who shall have completed a certain
length of service or attained a certain age shall
be entitled to a superannuation allowance.
By section 2 : " Officer " is defined to mean
" every officer in the service of the Council
designated an officer in an established capacity
by a resolution of the Council passed or to
be passed." In 1876 the plaintiff was, by a
resolution of the vestry of the parish of
St. Marylebone, the defendants' predecessors,
appointed the broker to execute warrants of
985
METROPOLIS.
986
distress for the recovery of the parochial rates,
and acted in that capacity for many years.
In 1899 the powers of the vestry were trans-
ferred to the defendants by the London
Government Act, 1899, and the plaintiff passed
into their service as an officer to collect rates.
From time to time resolutions were passed
by the council, and entered in their minutes,
in which the plaintiff wa^ referred to as their
warrant officer. The plaintiff, on leaving the
defendants' employment, claimed to be entitled
to a pension under the Act of 1908, as being
an officer within the meaning of section 2 : —
Held, that the word " designated " in sec-
tion 2 did not mean " incidentally referred
to," but meant " pointed out with particu-
larity," and that, in the absence of any reso-
lution designating the plaintiff an officer in an
established capacity, he was not entitled to
participate in the superannuation scheme.
Newton v. Marylebone Borough Council,
84 L. J. K.B. 1721; 113 L. T. 531; 79 J. P.
410; 13 L. G. R. 711 ; 59 S. J. 493— C.A.
Decision of Channell, J. (12 L. G. R. 713),
affirmed. lb.
Liability for Expenses of Proceedings under
Section 19 of Public Health (London) Act,
1891.] — See London County Council v. Ber-
mondsey Borough Council (supra).
B. TRANSFER OF AREAS.
Adjustment — Transfer of Statutory Liability
to Contribute to Maintenance of Bridge.] —
By section 46 of the Metropolitan Street
Improvement Act, 1883, the expenses of the
maintenance, &c., of a certain footbridge over
the Grand Junction Canal in a detached por-
tion of the parish of St. Luke, Chelsea, were
to be borne as to three-sixths by the vestry
of that parish, as to two-sixths by the vestry
of the parish of Kensington, and as to one-
sixth by the vestry of the parish of Paddington.
Under the London Government Act, 1899, the
parishes became Metropolitan boroughs, and as
from the appointed day, November 9, 1900,
the property and liabilities of the vestries were
transferred to the borough councils. By the
London (Chelsea Detached) Order in Council,
1900, a portion of the detached part of Chelsea
in which the footbridge with its approaches
was situated was annexed to the Metropolitan
borough of Paddington, and the remainder was
annexed to the royal borough of Kensington.
In 1903 by a scheme of adjustment between
the Paddington and Chelsea Borough Council,
to which the Kensington Council was not a
party, and which did not refer to the foot-
bridge, all property belonging to the former
vestry of Chelsea within the area annexed to
the borough of Paddington was transferred
to the council of that borough : — Held, that
by section 4 of the London Government Act,
1899, which was distributive in its operation,
the property and liabilities in and relating to
the footbridge were, apart from the adjust-
ment scheme of 1903, transferred to the Pad-
dington Borough Council as from November 7,
1900 ; and consequently that the right to
receive contribution towards the expenses of
the footbridge was vested in the Paddington
Borough Council, and the liability of the
former Kensington Vestry to contribute two-
sixths of those expenses was transferred to
the Kensington Borough Council, and that the
latter council must therefore pay to the former
the same proportion of the expenses. Padding-
ton Borough Council v. Kensington Borough
Council, 105 L. T. 35; 9 L. G. R. 868;
75 J. P. 514— D.
C. JURISDICTION.
1. Streets.
See also Vol. IX. 1051, 2361.
Power to Take Part of a House for
Widening,] — Part only of a house cannot be
taken against the wish of the owner for the
purpose of street widening under the provisions
of the Metropolitan Paving Act, 1817, where
such taking will substantially interfere with
the enjoyment of the house by the owner and
destroy the identity of the premises. Where
the tenant is willing to allow a part to be
taken, but the freeholder wishes the whole
house to be taken, the wishes and intentions of
the freeholder must be taken into account by
the local authority. Gibbon v. Paddington
Vestry (69 L. J. Ch. 746; [1900] 2 Ch. 794)
followed. Beyfus v. Westminster Corporation,
84 L. J. Ch. 838 ; 112 L. T. 119 : 79 J. P. Ill ;
13 L. G. R. 40; 59 S. J. 129— Sargant, J.
House — Notice to Take Part — Injunc-
tion— " Necessary."] — When a local authority,
acting under the powers conferred upon it by
Michael Angelo Taylor's Act, is acquiring pro-
perty for the purpose of street widening it is
competent to that authority to adjudge that
the purchase of a part only of a house is
necessary for the purpose of the widening. But
in order to justify the taking of a part only the
facts must be such that persons acting in a
gwasi-judicial capacity can honestly come to
the conclusion that it is unnecessary to take
the whole. There is no reason for confining
the word " necessary " in section 80 of Michael
Angelo Taylor's Act to physical necessity. The
wishes and intention of the owner as well as
the physical condition of the house may be
circumstances to be taken into account by the
authority in making its adjudication. Davies
V. London Corporation, 82 L. J. Ch. 286;
[1913] 1 Ch. 415 ; 108 L. T. 546 ; 77 J. P. 294 ;
11 L. G. R. 595 ; 57 S. J. 341 ; 29 T. L. R. 315
— Warrington, J.
House Used as Factory.] — In order to
justify a local authority in taking part only of
premises (instead of the whole premises) under
the powers conferred on them by sections 80
and 82 of the Metropolitan Paving Act, 1817,
it is necessary for them to shew that the taking
of the part will not substantially injure the
use of the premises as at present actually
enjoyed. It is not sufficient for them to shew
merely that what remains of the premises can
still possibly be used in a similar manner,
though perhaps on a diminished scale. Green
V. Hackney Corporation, 80 L. J. Ch. 16;
[1910] 2 Ch. 105; 102 L. T. 722; 74 J. P. 278;
9 L. G. R. 427— Neville, J.
987
METEOPOLIS.
988
Proviso Against Interference with Main
Structure — Destruction of Access to Chapel.]
— By section 18 of the London County Council
(Tramways and Improvements) Act, 1913, the
Council were given power in connection with
certain street improvements to take the parts
of properties specified in the Third Schedule to
the Act without being required or compelled
to purchase the whole of such properties, but
there was a proviso that the section was not to
" entitle the Council to take or interfere with
the main structure of any house, building or
manufactory." Under this section the Council
served notice to treat for the acquisition of the
" forecourt, walls, gates and railings " of a
Baptist chapel specified in the Third Schedule.
The result of the taking of this forecourt and
the lowering of its level for the purpose of a
street widening would be to make access to the
chapel impossible without extensive alterations
to the main structure -.—Held, that the taking
of the forecourt amounted to an interference
with the main structure of the chapel, and that
section 18 of the special Act was therefore
inapplicable, and that the Council could not
acquire compulsorily the lands specified in the
notice without taking the whole building.
Genders v. London County Council, 84 L. J.
Ch. 42; 12 L. G. R. 1063; 59 S. J. 58;
31 T. L. R. 34— C.A.
Paving — Power of Local Authority to Alter
Width of Carriage-way and Footway.] — A
local authority in the formation of a new street
under section 105 of the Metropolis Manage-
ment Act, 1855, has no power to alter the
dedication of the road by altering the width
of the carriage-way or footways forming such
street. Robertson v. Bristol Corporation
(69 L. J. Q.B. 590; [1900] 2 Q.B. 198) con-
sidered and applied. Wandsworth Borough
Council V. Golds, 80 L. J. K.B. 126; [1911]
1 K.B. 60; 103 L. T. 568; 74 J. P. 464;
8 L. G. R. 1102— D.
2. Buildings.
a. General Line.
See also Vol. IX. 1069, 2376.
Buildings Erected before 1894 beyond
General Line with Consent." — A consent
given by the Metropolitan Board of Works,
predecessors of the London County Council, to
transgress the general building line does not
alter that line or prevent the refusal of consent
in the future — each consent being an exception
and assuming that the building line remains.
Fleming v. London County Council; Metro-
politan Railway x. London County Council,
80 L. J. K.B. 35: ri^Hl A.C. 1; 103 L. T.
466: 8 L. G. R. 1055; 75 J. P. 9; 55 S. J. 28
— H.L. fE.)
A road in London was laid out under an Act
of 1756, which provided that no buildings
should be erected on new foundations in the
road within fifty feet of the highway. That
provision continued in force down to the pass-
ing of the Metropolis Management Amendment
Act, 1862 (25 & 26 Vict. c. 102), which pro-
vided by section 75 that no building should,
without the consent in writing of the Metro-
politan Board of Works, be erected beyond the
general line of buildings in any street in case
the distance of such line from the highway did
not exceed fifty feet. Before 1862 a line of
buildings had in fact been erected on the north
side of a part of the road in question at a
distance of about fifty feet back from the
roadway, and in front of these buildings, on
what had been originally their forecourts,
another discontinuous row of buildings had
been erected, there being no evidence to shew
that these latter buildings were erected on
old foundations which had existed before 1756.
In 1867 the Metropolitan Board of Works
passed a resolution approving and adopting a
line of frontage in that part of the road almost
corresponding to the actual frontage of the
existing projecting buildings, and coming up
to eleven feet from the roadway ; and for
some years that resolution was acted upon,
and buildings were erected upon that line.
Subsequently the London County Council, the
successors of the Metropolitan Board of Works,
required the superintending architect to define
the general line of buildings in that part of
the road under the London Building Act, 1894 :
— Held, that, in fixing the general line of
buildings, he was entitled to disregard and
treat as non-existent the buildings brought up
to the inner line. London County Council v.
Clode, 84 L. J. K.B. 1705; ri915] A.C. 947:
113 L. T. 754: 13 L. G. R. 12.34; 59 S. J. 628;
31 T. L. R. 483— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 1587: [1914] 3 K.B. 852) reversed. 7b.
Building Erected on Railway Company's
Land — Powers Conferred by Special Act of
Parliament for Railway Purposes — Exemption
from General Provisions.] — By their special
Act of 1866 the appellants were empowered to
enter upon, take, and use (inter alia) two
houses in Euston Road as they might require
them for the purposes of their Acts. In 1867
the appellants purchased those houses, and in
1882 placed on the forecourts thereof a ven-
tilating shaft. By their special Act of 1898
the appellants were empowered to enter upon,
take, and use a large number of lands,
including the two houses in Euston Road, and
to make and maintain thereon openings and
other works for the purpose of ventilating their
railway. That Act also contained a provision
that nothing therein contained should authorise
the erection of any building beyond the general
building line without the consent of the respon-
dents. In 1909 the appellants erected on the
forecourts of the said two houses in Euston
Road, and on the site of the ventilating shaft
which was done away with, an accumulator
shed in which were placed accumulators used
in connection with the electrical signalling on
their railway. This was erected beyond the
general building line without the respondents'
consent. In proceedings against the appellants
for contravening section 22 of the London
Building Act. 1894, by the erection of the
accumulator shed, the magistrate found as a
fact that the accumulators used therein were
used for railway purposes, but he was of
opinion that the appellants were not protected
by section 31 of the London Building Act,
1894, and he accordingly convicted the appel-
989
iMETROPOLIS.
990
lants : — Held, that the accumulator shed was
erected by the appellants under powers con-
ferred upon them by their special Act of 1866
for railway purposes, and therefore that they
were protected by section 31 of the London
Building Act, 1894. Metropolitan Railway v.
London County Council, 82 L. J. K.B. 542;
[1913] 2 K.B. 249; 108 L. T. 420; 77 J. P.
190; 11 L. G. R. 494; 29 T. L. R. 361— D.
Meaning of " Structure " — Projections
from Building — Open Ironwork and Glass
Advertisement Frame Tailed into Wall of
Building.] — For advertising purposes the
appellants without the consent of the London
County Council had placed immediately over
the main entrance to their premises in Oxford
Street an open iron framework filled in at the
sides and centre with glass and illuminated
by electric lamps. This framework weighed
locwt., and two stay rods supporting part of
its weight were " tailed " or fastened by plugs
and cement into holes cut in the wall of the
building. It measured eighteen feet from side
to side, five feet four inches from front to back,
and one foot eight inches from top to bottom.
It was sixteen feet above the pavement, and
projected some five feet six inches beyond the
general line of buildings. It was found by a
Metropolitan police magistrate that this frame-
work was a " structure " within section 22,
sub-section 1 of the London Building Act,
1894, and also a " projection " within sec-
tion 73, sub-section 8, and had become part of
the main building by the way in which it had
been " tailed " into the wall ; and he therefore
convicted the appellants on information charg-
ing them with having contravened those
enactments : — Held, affirming the convictions,
that there was evidence upon which the magis-
trate could find, as he did, that the framework
was part of the main building and not merely
something hanging on it, and that he had not'
misdirected himself, but had addressed his
mind to the right facts, in taking into con-
sideration the weight of the frame, the strength
and rigidity of the iron rods supporting the
structure, and the permanent character of the
" tailing " adopted in fastening them to the
wall of the main building. Pears v. London
County Council, 105 L. T. 525; 75 J. P. 461;
9 L. G. R. 834— D.
Appeals to Tribunal of Appeal — Statement
of Separate Case for Opinion of the Court on
Each Appeal.] — Where several appeals have
been made to the tribunal of appeal by owners
of different properties on one side of a street,
against a general building line defined for that
side of the street by the certificate of the
superintending architect, the tribunal can in
their discretion state separate Cases for the
opinion of the High Court under section 182
of the London Building Act, 1894, in respect
of each of such appeals, and need not state one
Case, and one only, with respect to the whole
of the appeals. Rex v. Tribuiial of Appeal;
London County Council, Ex parte, 76 J. P.
345 ; 10 L. G. R. 637— D.
Per Lord Alverstone, C.J. — There is no
power in the High Court to fetter the juris-
diction of the tribunal of appeal as to whether
they should state one or more than one Case.
lb.
b. Notice to Set Back.
Forecourt or other Space — Old Wall.] — The
London County Council has no power under
section 3, sub-section 1 of the London Building
Act, 1894 (Amendment) Act, 1898, to serve a
notice on the owner or occupier of land, who
has erected a new building thereon, to set back
an old boundary wall which forms the boundary
of the forecourt or space then created between
the new building and the street, so that it
shall be at not less than the prescribed dis-
tance from the centre of the roadway of the
street. Rea v. London County Council,
80 L. J. K.B. 704; [1911] 1 K.B. 740;
104 L. T. 501; 75 J. P. 261; 9 L. G. R. 299
— D.
c. Party Walls.
See also Vol. IX. 1079, 2385.
External Wall — Wall a Party Wall for
Portion of its Height.] — Under the London
Building Act, 1894, a wall which is used for
the separation of adjoining buildings is a party
wall for such part of the height of the wall as
is so used ; and therefore a wall may be a party
wall as to a portion, but cease to be a party
wall as to the rest, of its height. London.
Gloucestershire, and North Hants Dairy Co.
V. Morley, 80 L. J. K.B. 908; [1911] 2 K.B.
257; 104 L. T. 773; 9 L. G. R. 738; 75 J. P.
437— D. Appeal settled, 80 L. J. K.B. 1361;
[1911] 2 K.B. 1143; 105 L. T. 658; 75 J. P.
548— C.A.
Defect — Damp — Past History of Party
Structure.] — The right conferred on the
building owner by section 88 of the London
Building Act, 1894, is confined to making good
the party structure so as to make it effective
in those respects in which it is defective for
the purposes for which it is actually used or
intended to be used. Dampness in a wall is
not a " defect " within the meaning of the
Act unless its existence renders the wall less
effective for such purposes. The previous his-
tory and user of the wall ought not to be taken
into consideration. Work entailing inconveni-
ence on the adjoining owner ought not to be
directed if it is possible to direct other works
equally effective, and not involving considerable
extra cost, which would cause no such incon-
venience. Barry v. Minturn, 82 L. J. K.B.
1193 ; [1913] A.C. 584 ; 109 L. T. 573 ; 77 J. P.
437; 11 L. G. R. 1087; 57 S. J. 715;
29 T. L. R. 717— H.L. (E.)
Judgment of the Court of Appeal (81 L. J.
K.B. 1235 ; [1912] 3 K.B. 510) varied. 7b.
See also Spiers if Son, Lini. v. Troup, post.
col. 995.
d. Protection from Fire.
Royal Albert Hall — Necessity of Certifi-
cate.]— The provisions of section 12 of tlie
Metropolis Management and Building Acts
Amendment Act, 1878, requiring for places to
he kept open for public entertainment a cer-
991
METEOPOLIS.
992
tificate from (now) the London County Council
that the place is in accordance with the Coun-
cil's regulations, only applies to buildings
coming into existence after the passing of the
Act. London County Council v. Hall of Arts
and Sciences Corporation, 110 L. T. 28;
78 J. P. 11; 11 L. G. E. 1177; 30 T. L. R. 3
— D.
Means of Escape from Fire — Conditional
Approval of Plans — Failure to Appeal —
Refusal of Certificate — Appeal to Tribunal of
Appeal — Jurisdiction to Determine Reason-
ableness of Condition.]— On an appeal from
the refusal of the London County Council to
issue a certificate that a building which is
within the provisions of section 7 of the London
Building Acts (Amendment) Act, 1905, has
been provided with means of escape therefrom
in case of fire in accordance with plans
approved by the London County Council (sub-
ject to compliance with certain conditions), or
(on appeal) by the tribunal of appeal, the
tribunal of appeal has jurisdiction only to
enquire whether means of escape have been
provided in fact in accordance with the ap-
proved plans and conditions, and, where the
means actually provided are not in accordance
therewith, has no jurisdiction to enquire
whether the building has been provided with
all such means of escape therefrom in case of
fire as can reasonably be required under the
circumstances of the case. London County
Council V. Clark, 81 L. J. K.B. 225; [1912]
1 K.B. 511; 105 L. T. 713; 10 L. G. E. 59;
76 J. P. 60; 56 S. J. 12.5— D.
Means of Access to Roof — Public House
Fronting Two Streets— Main Front — Project-
ing Shops — "Dwelling house occupied as
such by not more than two families" — Mem-
bers of Public House Staff.]— A fully licensed
public house had an elevation of four storeys
above the basement. Nearly the whole of the
ground floor was used as a bar. There were
two sitting rooms on the first floor and six
bedrooms on the second and third floors. ' The
house was inhabited by thirteen persons —
namely, the tenant, his wife, three children,
their servant, and the seven members of the
public house staff — all of whom slept and had
their meals there. Upon a summons for failing
to comply with the requirements of section 12
of the London Building Acts (Amendment)
Act, 1905, the magistrate held that the public
house did not come within section 12 of the
Act of 1905, because it was " a dwelling house
occupied as such by not more than two
families," inasmuch as the thirteen persons
formed only one family : — Held, that upon the
facts the decision of the magistrate was right,
inasmuch as it was impossible to draw any
distinction between the servant of the tenant
and the members of the public house staff, and
to say that the latter were not equally mem-
bers of the same " family " as the former.
London County Council v. Cannon Brewery
Co., 80 L. J. K.B. 258; [1911] 1 K.B. 235;
103 L. T. 574 ; 74 J. P. 461 : 8 L. G. E. 1094
— D.
Houses Belonging to Different Owners
Adapted by Tenant as Factory.] — See London
County Council v. Leyson, ante, col. 967.
e. Surveyor's Powers and Duties.
See also Vol. IX. 1087, 2387.
Metropolis — District Surveyors — Tenure of
OfRce — Power of County Council to Dismiss.]
— The London County Council have power,
under the provisions of the Metropolitan
Building Act, 1855, the Local Government Act,
1888, and the London Building Act, 1894, to
dismiss at their pleasure district surveyors who
have been appointed after August 14, 1855.
Notley V. London County Council, 85 L. J.
K.B. 113 ; [1915] 3 K.B. 580 ; 13 L. G. E. 1346
— Rowlatt, J.
Building in Occupation of Crown — Shed for
Purposes of Territorial Association.] — A
magistrate has no jurisdiction to make an order
under section 153, sub-section 1 of the London
Building Act, 1894, requiring a person upon
whom a notice of irregularity has been served
by the district surveyor to comply with such
notice in a case where at the date of the
application for the order the building to which
the notice relates is vested in and in the
occupation of a Territorial Association for the
purposes of the Territorial and Eeserve Forces
Act, 1907. Dellar v. Drury, 81 L. J. K.B.
766; [1912] 2 K.B. 209; 106 L. T. 806;
76 J. P. 239 ; 10 L. G. E. 395 ; 29 T. L. E. 345
— D.
Erection as a Public Elementary School —
Building Notice — "Provision in local Act
dealing with construction of new buildings."]
— Section 145 of the London Building Act,
1894, provides that, when a building or struc-
ture is about to be begun, then two clear days
before it is begun the builder or other person
causing or directing the work to be executed
shall serve on the district surveyor a building
notice respecting the building or structure as
therein prescribed. Section 200, sub-section 11,
provides that any person who, being a person
who ought to serve a building notice, fails to
do so is liable to a penalty. Section 3 of the
Education (Administrative Provisions) Act,
1911, enacts that the provisions of any by-laws
made by any local authority under section 157
of the Public Health Act, 1875, as amended by
any other Act, with respect to new buildings
(including provisions as to the giving of notices
and deposit of plans and sections), and any
provisions in any local Act dealing with the
construction of new buildings, shall not apply
to the case of any new buildings being school
premises to be erected, or erected, according to
plans which are required to be and have been
approved by the Board of Education. A firm
of builders, in pursuance of a contract made
by them with the London County Council as
the education authority for the County of
London for the erection of some new buildings
to be erected as a public elementary school
according to plans approved by the Board of
Education, commenced the work without
giving any notice thereof in accordance with
section 145 of the London Building Act, 1894,
and were convicted under section 200, sub-
section 11 of that Act for failing to give
notice : — Held, that section 145 of that Act
was a " provision in a local Act dealing with
993
METROPOLIS.
094
the construction of new buildings " within the
meaning of section 3 of the Education (Admin-
istrative Provisions) Act, 1911, and did not
apply to the buildings in question. The con-
viction, therefore, was wrong. Holliday ct
Greenwood v. District Surveyors' Association,
83 L. J. K.B. 1482; [1914] 2 K.B. 803;
no L. T. 983 ; 78 J. P. 262 : 12 L. G. R. 633;
30 T. L. R. 370— D.
Public Elementary Schools Added to by
London County Council — District Surveyor's
Duties and Fees — New Building.] — The
exemption of education authorities in section 3
of the Education (Administrative Provisions)
Act, 1911. as regards the giving of notice to
the district surveyor in respect of new build-
ings, being school premises, does not extend to
alterations or additions to old buildings such
as the remodelling of the infants' department
of a public elementary school ; and a district
surveyor, having received a building notice
under section 145 of the Ijondon Building Act,
1894, which imposes duties upon him in
respect of such an alteration, is consequently
entitled to the fees provided for him under
section 154 and Schedule III.. Parts I. and III.
of that Act. Galbraith v. Dicksee (102 L. T.
890; 8 L. G. R. 800, 869) applied. Akers v.
Daubney, 79 J. P. 516; 13 L. G. R. 1201— D.
Semble, that if a case should occur in whicli
the notice served on the district surveyor
imposed no duties upon him whatever, he
could not, by reason of the service of such a
notice on him, recover fees. lb.
t. Consent of Local Authority.
See also Vol. IX. 1089. 2389.
Erection of Hoarding — Licence — School
Premises Approved by Board of Education —
Exemption from Necessity for Licence.] —
Section 121 of the ^Metropolis Local Manage-
ment Act, 1855, enacts that a person building,
taking down, or repairing any building, in
cases where the footway is thereby obstructed
or rendered inconvenient, shall erect a hoard-
ing to the satisfaction of the borough council.
By section 122 it shall not be lawful to erect
in any street any hoarding " for any purpose
whatever " without the licence first had and
obtained of the borough council : — Held, that
a person erecting a hoarding under the
mandatory provisions of section 121 must first
obtain the licence of the borough council.
Higgs d- Hill, Lim. v. Stepney Borough
Council, 83 L. J. K.B. 294 : [1914] 1 K.B. 505 ;
110 L. T. 377 ; 78 J. P. 134 ; 12 L. G. R. 395 ;
30 T. L. R. 198— D.
Section 3 of the Education (Administrative
Provisions) Act, 1911, enacts that any pro-
vision in any local Act (which it was admitted
that the Act of 1855 was) dealing with the
construction of new buildings shall not apply
in the case of any new buildings being school
premises erected according to plans approved
t)y the Board of Education (which the build-
ing in question was) : — Held, that the section
did not apply to exempt the appellants from
the necessity of obtaining a licence for the
erection of a hoarding, as the provisions of
sections 121 and 122 of the Act of 1855 did
not deal with the construction of new build-
ings, but only with the consequences to the
public arising from the construction of new
buildings. 76.
g. Dangerous Structures.
See also IV,/. IX. i(«0, 2390.
Uninhabited — Structure not Adjoining
Highway — Structure Temporarily Shored up
by Local Authority — Structure not Dangerous
Owing to Shoring — Structure Dangerous only
to Trespassers — Ruinous and Neglected
Structure.] — Two buildings in a row m
Islington, which were separated from the high-
way by a forecourt and were uninhabited, were
certified by the district surveyor under sec-
tions 103 and 105 of the London Building
Act, 1894, to be dangerous structures. The
London County Council caused each of the
buildings to be temporarily shored up. Notice
was served upon the owners under section 106
of the Act to execute certain specified repairs,
which, however, were not carried out. The
County Council thereupon took proceedings
against the owners under section 107 to enforce
compliance with the notice. The magistrate
found as a fact that the premises were not
dangerous at the moment owing to the fact
that they had been temporarily shored up, and
that apart from the shoring they were not
dangerous to anj' persons except to trespassers.
He held that the buildings were not dangerous
structures, and refused to make any order on
the owners to carry out the works specified : —
Held, that the fact that the buildings were
not at the moment dangerous owing to the
temporar}' shoring did not prevent them from
being " dangerous structures " within the
meaning of the Act ; that a building might be
at the same time both a ruinous and neglected
structure and also a "dangerous structure";
that it was not necessary that a building
should be dangerous to any person in order
that it should be a " dangerous structure,"
but that it was sufficient if there was a
possibility of danger to person or property
arising from the fall of the structure; that a
building might be a " dangerous structure "
even though the only person to whom it might
be dangerous was a trespasser. London
Countij Council v. Jones, 81 L. J. K.B. 948;
[1912] 2 K.B. 504: 106 L. T. 872; 76 J. P.
293; 10 L. G. R. 471— D.
Party Wall a Dangerous Structure — Magis-
trate's Order to Pull Down — Compliance there-
with— Building Owner and Adjoining Owner —
Right of Building Owner to Contribution." —
Section 90, sub-section 1 of the London
Building Act, 1894, provides that a building
owner shall not, except {inter alia) in cases
where any wall is dangerous (in which case
the provisions of Part IX. of the Act shall
apply), exercise any of his rights under the
Act in relation to any party wall, unless at
least two months before doing so he has served
on the adjoining owner a party wall notice,
stating the value and particulars of the pro-
posed work, and the time at which the work
is proposed to be commenced. In the course
of rebuilding a house of which the plaintiffs
32
995
METROPOLIS.
996
were the building owners within the meaning
of the above statute, they were served with a
magistrate's order to pull down the party wall
as being a dangerous structure, which they did,
and, presumably under the powers of sec-
tion 88, sub-sections 2, 6, or 7 contained in
Part VIII. of the Act, rebuilt it, but higher
and thicker than the old one, and without
complying with the provisions of section 91
contained in Part VIII. of the Act as to the
settlement of any difference which might arise
in the rebuilding thereof between the plaintiffs
and the defendant, the adjoining owner. In
an action in which the plaintiffs claimed con-
tribution for a share of the expenses incurred
in pulling down and rebuilding the party wall,
— Held, first, that, as the building owner and
adjoining owner were each liable under
Part IX. of the Act for the expenses of pulling
down the party wall, the plaintiffs' claim for
contributi'^n for such expenses succeeded ; but
secondly, that, inasmuch as the plaintiffs had
not complied with the above provisions of
Part VIII. of the Act_, their claim for contribu-
tion for expenses in rebuilding the party wall
failed. Spiers £ Sons, Lim. v. Troup, 84 L. J.
K.B. 1986; 112 L. T. 1135; 79 J. P. 341;
13 L. G. R. 633— Scrutton, J.
3. Sewers and Drains.
See al^o Vol. IX. 1095, 2892.
Sewer or Drain — Order for Combined
Drainage — Order not Carried Out — Notice to
Builder to make Drains in Accordance with
Approved Plan — Work Carried Out by Local
Authority — Liability of Purchaser to Repair
Combined Drain.] — A sewer vests in a local
authority only for the purpose of enabling
that authority to perform the duty imposed
upon it, and if at any time that duty is shifted
from the local authority to an individual and
the pipe ceases to be a sewer, it also ceases to
be vested in the local authority, notwithstand-
ing that the statute which imposes the duty
on the local authority contains no divesting
clause. Kershaw v. Smith, 82 L. J. K.B. 791 ;
[1913] 2 K.B. 455: 108 L. T. 650; 77 J. P.
297; 11 L. G. R. 519— D.
In 1884 an order was made by the vestry of
a Metropolitan parish, on the application of
the builder, for the drainage of twelve houses
by a combined operation according to a plan
which was approved by the vestry ; seven
houses were to be drained into one sewer and
five houses into another sewer, the drainage
from one of the groups of houses being carried
by a combined drain passing under one of the
houses. No. 178, into the public sewer. In
1887 No. 178 was purchased by S., and was
subsequently assigned to the respondents for
valuable consideration and without notice that
the drainage was in contravention of the
approved plan. In 1912 the local authority
discovered that the drainage of the houses had
not been carried out in accordance with the
approved plan, the houses being grouped
differently and the drainage from a workshop
and certain gullies being without the per-
mission of the local authority drained into the
combined drain passing under No. 178, that
line of pipes being thereby converted from a
drain into a sewer. The local authority served
upon the original builder of the twelve houses
a notice under section 83 of the Metropolis
Management Act. 1855. requiring him to
cause the drains of the twelve houses to be
altered in accordance with the approved plans.
As the builder did not comply with the notice
the local authority themselves carried out the
work, disconnecting the drain from the work-
shop and gullies and bringing the drainage of
the twelve houses into conformity with the
approved plan. The local authority then
served upon the respondents a notice under
section 85 of the Act of 1855 requiring them
to take up the combined drain under No. 178
and remedy a nuisance therein : — Held, by
Eidley, J., and Avory, J. (Pickford, J.,
dissenting), that after the work had been
carried out by the local authority under sec-
tion 83 of the Act of 1855, the combined drain
passing under No. 178, which by the wrongful
act of the builder had become a sewer, was
re-converted into a drain, and thereupon ceased
to be vested in the local authority, and that
therefore the respondents were liable to a
penalty under section 64 of the Metropolis
Management Act, 1862, for not complying
with the notice served upon them under sec-
tion 85 of the Act of 1855. St. Leonard,
Shoreditch (Vestry) v. Phelan (65 L. J. M.C.
Ill; [1896] 1 Q.B. 533j commented upon and
not followed. lb.
Pipe Carrying Internal Drainage of One
House and Bain Water from Roofs of
Adjoining Houses.] — A pipe (not being a
drain for the drainage of a block of houses
by combined operation) which carries off the
internal drainage of one house only, but which
also receives and carries off the rain water
from the roofs of the adjoining houses on either
side, is a sewer and not a drain within sec-
tion 250 of the Metropolis Management Act,
1855. Silles v. Fulham Borough Council
(72 L. J. K.B. 397; [1903] 1 K.B. 829)
followed; but discussed by Channell, J., in
view of the possible distinction capable of
being drawn between the facts in that case and
those in Holland v. Lazarus (66 L. J. Q.B.
285). Dicta of the same learned judge in
Heaver v. Fulham Borouqh Council (72 L. J.
K.B. 715: [1904] 2 K.B. 383) referred to.
Kershaw v. Paiyie, 78 J. P. 149; 12 L. G. R.
297— D.
" Combined drains " — Application and Pay-
ment for Communication between Drain and
Sewer.] — In the absence of any minutes of a
Metropolitan local authority with respect to
the drainage of a group or block of houses
by a combined operation, the production of a
written application of January 28, 1858,
addressed by a building owner to the local
authority (then the vestry) to connect up the
drainage of his group or block of houses to
their sewer, coupled with an entry in the
vestry's cash book of February 8, 18.58, of
payment to the vestry by the building owner
of the cost of their having made the connec-
tion, is enough to shew that the method of
the system of drainage was within the know-
ledge of the vestry through its officials, and
997
METROPOLIS.
998
to allow the inference to be drawn that the
vestry had sanctioned the application, and that
therefore the houses had been drained by a
combined operation by order of the vestry, so
as to prevent the comlained drain from being a
" sewer " vested in the local authority. The
principle laid down in High v. Billings
(1 L. G. R. 723), Geeji v. Neivington Vestrij
(67 L. J. Q.B. 557; [1898] 2 Q.B. 1). and
Bateman v. Poplar District Board of Works
(56 L. J. Ch. 149; 33 Ch. D. 360) followed.
House Propertt/ and Investment Co. v. Grice,
9 L. G. R. 758: 75 J. P. 395— D.
Soil Pipe — Construction of.] — A by-law of
the London County Council required that a
person who provided a soil pipe in connection
with a new building or who should construct
a soil pipe in connection with an existing
building should, whenever practicable, cause
such soil pipe to be situate outside the building
and should construct the pipe in drawn lead
or heavy cast iron ; and that when it was
necessary to construct the soil pipe within the
building it was to be constructed of drawn
lead with proper joints and so as to be easily
accessible : — Held, that the by-law applied
where the soil pipe was partly outside and
partly inside a building. Marijlebone Borough
Council V. White, 76 J. P. 382; 10 L. G. R.
767— D.
Repair of Sewer in Street under Jurisdic-
tion of Crown Paving Commissioners.] — The
Commissioners for executing the Crown Estate
Paving Act, 1851, were, as successors of Com-
missioners under an Act of 1824, authorised
and empowered to repair and maintain the
streets within a certain area, including a street
one-half of the breadth of which is now in the
Metropolitan borough of St. M. and the other
half in the Metropolitan borough of St. P.
Their predecessors had been, under the Act of
1824, Commissioners of Sewers for the same
area ; a sewer under the half of the street in
St. M. had been repairable by them, but under
an Act of 1848 became vested in and repair-
able by the Metropolitan Commissioners of
Sewers, and ultimately vested in and was
repairable by the borough council of St. M.
In December, 1909, the sewer, having
perished for want of repair, fell in and the
road above it subsided. In March, 1910, the
Commissioners called upon the council to
repair the sewer, and on their default repaired
it and made good the road, completing the
work in the month of May following. In
July of the same year they paid the ex-
penses incurred by them in executing the
work, and demanded repayment from the
council ; and in the following September they
commenced an action against the council to
recover the amount of the expenses : — Held,
that the Commissioners were in the discharge
of their statutory duty obliged to repair the
sewer, and that they were therefore entitled
to recover the amount so expended from the
council as money paid at the council's
request. Hart v. Marylebone Borough Council,
76 J. P. 257; 10 L. G. R. 502— A. T.
Lawrence, J.
Sewer and Highway Authority — Gully in
Road Negligently Constructed — District
Divided — Creation of Local Authority for Part
of District — Act to be Read as if New Body
had been Named in Act — Accident through
Defective Condition of Gully — Transfer of
Liability of Original Authority — Liability of
New Authority as Sewer Authority.] — A gully
in a road in the parish of Battersea was
negligently constructed in 1883 by the
Wandsworth District Board of Works, which
body was, by sections 31, 68, 69, and 96 of
the Metropolis Management Act, 1855, con-
stituted the sewer and highway authority for
the district. In 1888 the parish of St. Mary,
Battersea, was by section 4 of the Metropolis
Management (Battersea and Westminster) Act,
1887, separated from the parishes mentioned
in Schedule B of the Act of 1855 as forming
the Wandsworth district, and the vestry of
that parish was duly incorporated. The section
provided that the Act of 1855 should be read
and have effect as if the parish of St. Mary,
Battersea, had been named in Schedule A of
the Act of 1855. Under section 4 of the
London Government Act, 1899, the defendants
became the successors of the vestry of St.
Mary, Battersea, and the property and lia-
bilities of the vestry were transferred to them.
An accident happened to the plaintiff, who was
riding her bicycle along the road, through the
defective condition of the gully, and she was
severely injured. The jury found that the
gully was negligently constructed, and that
the defendants were liable both as sewer
authority and also as highway authority for
not remedying the defect in the gully : — Held,
that the liability of the Wandsworth District
Board of Works in respect of the negligent
construction of the gully was not transferred
to the vestry of the parish of St. Mary,
Battersea, by section 4 of the Act of 1887, and
consequently was not transferred to the defen-
dants ; but that the defendants were liable in
their capacity as sewer authority, although
not in their capacity as highway authority,
for their negligence in not remedying the
defect in the gully. Papworth v. Battersea
Borough Council (No. 1), 83 L. J. K.B. 358;
[1914] 2 K.B. 89; 110 L. T. 385; 78 J. P.
172; 12 L. G. R. 308— Horridge, J. New trial
ordered, 84 L. J. K.B. 1320; [1915] 1 K.B.
392 ; 112 L. T. 681 ; 79 J. P. 105 ; 13 L. G. R.
197; 59 S. J. 74; 31 T. L. R. 52— C.A.
A gully in a road in the parish of Battersea
was negligently constructed in 1883 by the
Wandsworth District Board of Works, which
body, under the Metropolis Management Act,
1855, constituted the sewer and highway
authority for the district. In 1888 the parish
of St. Mary, Battersea, was, by section 4 of
the Metropolis Management (Battersea and
Westminster) Act, 1887, separated from the
parishes forming the Wandsworth district, and
the vestry of that parish was duly incorporated.
The defendants became the successors of the
vestry of St. Mary, Battersea, under section 4
of the London Government Act, 1899, and the
property and liabilities of the vestry were
transferred to them. An accident happened to
the plaintiff as she was riding her bicycle along
the road, through the defective condition of
999
METROPOLIS.
1000
the gully, and she was severely injured. At
the first trial the jury found that the defen-
dants were liable both as sewer authority and
also as highway authority for not remedying
the defect in the gully, and Horridge, J., held
(83 L. J. K.B. 358; [1914] 2 K.B. 89) that
although the liability of the Wandsworth
District Board of Works in respect of the
negligent construction of the gully was not
transferred to the vestry of the parish of
St. Mary, Battersea, and consequently was
not transferred to the defendants, yet the
defendants were liable in their capacity as
sewer authority for their negligence in not
remedving the defect in the gully. The Court
of Appeal (84 L. J. K.B. 1320; [1915] 1 K.B.
392) ordered a new trial, and the jury on the
second trial found that the accident was caused
by the frame of the grating of the gully hole
being broken and by there being an excessive
depression; that the grating over the gully
formed part of the road and was controlled
and maintained by the highway authority, but
that the highway authority did not at the time
of the accident know of the defect : — Held,
following the decision of Horridge, J., that
the liability of the Wandsworth District Board
of Works in respect of the original negligent
construction of the gully was not transferred to
the defendants; and that, as the grating
formed part of the road and was controlled and
maintained by the defendants as highway
authority and not as sewer authority, the
plaintiff's action failed, as all that had been
proved was the failure of the defendants to
remedy the defects in works done by their pre-
decessors, and not actual misfeasance on the
part of the defendants themselves. Cowley v.
Newmarket Local Board (62 L. J. Q.B. 65;
[1892] A.C. 345) applied. Papworth v. Batter-
sea Borough Council {No. 2), 84 L. J. K.B.
1881; 79 J. P. 309— Scrutton, J. Affirmed.
60 S. J. 120— C.A.
4. Employment Agency.
Lecture Agency — Necessity for Licence.] —
Section 20 of the London County Council
(General Powers) Act, 1910, which provides
that, from and after January 1, 1911, " no
person shall carry on an employment agency
without a licence from the licensing authority
authorising him so to do," applies to agencies
for the employment of persons in any capacity,
and not only to those which create the relation-
ship of master and servant. The section there-
fore applies to an agency which carries on
the business of engaging lecturers. Lecture
League, Lim. v. London County Council,
108 L. T. 924 ; 77 J. P. 329 ; 11 L. G. K. 645 :
23 Cox C.C. 390; 29 T. L. E. 426— D.
5. Unsound Food.
See also Vol. IX. 1110, 2407.
Liability of Seller a Limited Company.] —
A limited company may be proceeded against
by indictment for the offence created by sec-
tion 47, sub-section 3 of the Public Health
(London) Act, 1891. Rex v. Puck d Co.
(No. 2), 76 J. P. 487; 11 L. G. E. 136;
29 T. L. E. 11— Eowlatt, J.
Unsound Fruit Voluntarily Given up by
Purchaser for Condemnation.] — A person who
sells to another unsound food, which, although
liable to be seized, is not in fact seized, but is
voluntarily given up for condemnation by the
purchaser, does not commit the offence created
by section 47, sub-section 3 of the Public
Health (London) Act, 1891. lb.
Fish Unfit for Food of Man — Exposure for
Sale — Condemnation by Magistrate — Condi-
tion Precedent to Prosecution,] — Upon an
information under section 47, sub-section 2 of
the Public Health (London) Act, 1891, charging
the defendant with having exposed for sale an
article unfit for the food of man, it is not
necessary to prove as a condition precedent
to the prosecution that the article has been
previously condemned by a magistrate : — So
lield by Lord Alverstone, C.J., and Avory, J. ;
Pickford, J., dissenting. Hewett v. Hatters-
ley, 81 L. J. K.B. 878; [1912] 3 K.B. 35;
107 L. T. 228 ; 76 J. P. 369 ; 10 L. G. E. 620 ;
23 Cox C.C. 121; 28 T. L. E. 433— D.
6. Smoke.
See also Vol. IX. 1111, 2408.
Black Smoke — Meaning of " Recurrence of
nuisance."] — On November 5, 1910, the occu-
piers of an electric-power station were required
by notice under section 4 of the Public Health
(London) Act, 1891, to abate a nuisance which
occurred on October 24 from a chimney send-
ing forth black smoke. From that time until
April 9, 1911 (with a few exceptions in March),
no further nuisance due to the chimney was
observed, but on the latter date the chimney
again sent forth black smoke ; whereupon the
occupiers were summoned for an alleged breach
of the notice of November 5, 1910. The magis-
trate dismissed the summons, holding that the
nuisance of April 9, 1911, was a recrudescence
and not a contiimance of the nuisance of
which the notice of November required the
abatement, and that the occupiers had not
made default in complying with the requisi-
tions of the notice : — Held, that no connection
between the nuisance of October 24, 1910, and
that of April 9, 1911, having been established
by evidence before him, the decision of the
magistrate must be upheld. Greenwich
Borough Council v. London County Council,
106 L. T. 887 ; 76 J. P. 267 ; 10 L. G. E. 488 ;
23 Cox C.C. 32— D.
7. Lodging Houses.
See also Vol. IX. 2412.
Lodgers Received for the Night or Less
than a Week — Absence of Common Room for
Eating or Sleeping — Necessity for Licence.]
— A house in which lodgers are received for a
night or other periods less than a week, and
where each person has the exclusive use of a
room, is not a " common lodging house " for
the purposes of the London County Council
(General Powers) Act, 1902, unless it contains
a common room either for eating or sleeping.
London County Council v. Hankins, 83 L. J.
K.B. 460; [1914] 1 K.B. 490; 110 L. T. 389;
I»1
1001
METEOPOLIS.
1002
78 J. P. 137 ; 1'2 L. G. R. 314 : 24 Cox C.C. 94 ;
30 T. L. R. 192— D.
The definition of the expression " common
lodging house " adopted bv the Court of
Appeal in Parker v. Talbot "(75 L. J. Ch. 8;
[1905] 2 Ch. 643) is not exhaustive. 7b.
D. RATES.
See also Vol. IX. 1122. 2413.
Rateable Yalue — Deductions from Gross
Value — Maximum Rate of Deductions —
" Houses or buildings let out in separate
tenements."] — A building divided into flats
each of which is let separately, and is separately
inserted in the valuation list as a rateable
hereditament, is a " house or building let out
in separate tenements " within the meaning
of the footnote to Schedule III. of the Valua-
tion (Metropolis) Act, 1869, and therefore the
maximum rate of deductions prescribed by
that schedule does not apply to it. Western
V. Kensington Assessment Committee {11 L. J.
K.B. 328; [1908] 1 K.B. 811) approved.
Marylebone Assessment Committee v. Con-
solidated London Properties, Lim., 83 L. J.
K.B. 1251; [1914] A.C. 870; 111 L. T. 553;
78 J. P. 393; 12 L. G. R. 885; 58 S. J. 593;
30 T. L. R. 551— H.L. (E.)
Decision of the Court of Appeal (82 L. J.
K.B. 972; [1913] 3 K.B. 230) affirmed. lb.
Provisional Valuation — Quinquennial List
— "Subsequently made."] — A valuation list
is not " made " within the meaning of sec-
tion 47, sub-section 8 of the Valuation (Metro-
polis) Act, 1869, until it has been finally
approved by the assessment committee.
Parrisli v. Hackyiey Borough Council, 81 L. J.
K.B. 304; [1912] 1 K.B. 669; 105 L. T. 859;
10 L. G. R. 3; 76 J. P. 89; 56 S. J. 140;
28 T. L. R. 110— C.A.
A provisional valuation list came into
operation on June 30, 1910, and in that list
certain licensed premises were assessed at the
rateable value of 266L The new quinquennial
valuation list was sealed by the overseers on
May 30, 1910, was finally approved by the
assessment committee on October 31, 1910,
and came into operation on April 6, 1911, and
in that list the premises were assessed at the
rateable value of 150Z. No other list had in
the meantime been made. On April 12, 1911,
the overseers made a general rate and charged
the occupier of the premises on the higher
value at which they were assessed in the
provisional list. Between June 30, 1910, and
the coming into force of the new list the
occupier had paid certain rates on the higher
value of the premises : — Held, that the quin-
quennial list was the first list " subsequently
made " to the provisional list within the
meaning of section 47, sub-section 8 of the
Valuation (Metropolis) Act. 1869, and that,
therefore, by that sui)-s('ction. the provisional
list ceased to have effect when the (juinquennial
list came into operation on April 6, 1911;
and consequently that the overseers were only
entitled to rate the occupier on the smaller
value appearing in the quinquennial list, and
were bound, under sub-section 10, to repay
to him the excess rates paid by him beyond
what he would have paid on the lower value.
lb.
Structural Alterations in Tramways — Juris-
diction of Quarter Sessions to Entertain
Appeal against Rate Based on Provisional
List.] — The appellants, as owners of tram-
ways in a Metropolitan borough, had con-
structed a new curve for relieving congestion
of traffic, and reconstructed certain tramway
lines for electric traction. In consequence of
this alteration the respondents as overseers
raised the rateable value of the tramway
lines by a provisional valuation list to the
extent of l.OOOZ. The appellants appealed to
the quarter sessions for the county of London
against a general rate based upon the provi-
sional list : — Held, that as there was evidence
before the assessment committee of alterations
in the hereditament, the question whether they
had rightly come to the conclusion that such
alterations had resulted in an increase of value
was not one which could properly be raised on
appeal to the quarter sessions. London County
Cotincil V. SJioreditch Borough Council,
105 L. T. 515; 9 L. G. R. 939; 75 J. P. 386
— D.
Semble, that if there had been no evidence
at all upon which the assessment committee
could have come to the conclusion that there
had been an increase in value the provisional
list would have been a nullity and might have
Ijeen quashed upon certiorari. lb.
Reduction in Value of Hereditament — Basis
of Comparison.] — Where a requisition is made
to the overseers of a parish under section 47 of
the Valuation (Metropolis) Act, 1869, to make
a provisional valuation list, on the ground
that a hereditament in the parish has been
from some cause increased or reduced in value,
the basis of comparison is with the value
appearing in the existing valuation list, and
not with the value at the close of the
immediately preceding year. London County
Council V. Islington Assessment Committee,
84 L. J. K.B. 1942; [1915] A.C. 762;
113 L. T. 289; 79 J. P. 353; 13 L. G. R. 785;
31 T. L. R. 348— H.L. (E.)
Decision of the Court of Appeal affirmed on
this point. lb.
The duty of the overseers (or of the assess-
ment committee on their failure to do so) to
prepare a provisional list on the requisition of
a ratepayer is purely ministerial, and they are
bound to comply with such requisition if it is
made bona fide and is not frivolous, and a
mandamus will be granted to compel them to
make such list. lb.
Licensed Premises — Increase of Licence
Duty — " Any cause " — Refusal to Appoint
Valuer — Mandamus.] — When aprimafaciecase
of a reduction in the value of a hereditament is
shewn, it is the duty of the assessment com-
mittee, on a proper requisition being made to
them, under the provisions of section 47, sub-
section 2 of the Valuation (Metropolis) Act,
1869, on the overseers making default in
sending them a provisional list, to appoint a
person to make such list : — Held, that the fact
that the licence duty on fully licensed premises
had, in consequence of the provisions of the
1003
METROPOLIS— MIXES AND MINERALS.
1004
Finance (1909-10 1 Act, 1910, been increased
from 35/. to 130/., constituted such prima facie
case. Held, also, that the refusal of the assess-
ment committee to appoint a valuer on the
ground that no sufficient " cause '" was stated
in the requisition was wrong, that their action
involved a mistake in law, and that conse-
quently the tenant of the licensed premises
was entitled to a mandamus. Rex v. South-
tcark Assessment Committee (78 L. J. K.B.
319; [1909] 1 K.B. 274) applied. Rex v.
Shoreditch Assessment Committee: Morgan,
Ex parte, 80 L. J. K.B. 185; [1910] 2 K.B.
859; 103 L. T. 262; 74 J. P. 361; 8 L. G. E.
744: 26 T. L. R. 663— C. A.
MIDWIVES.
See MEDICINE.
MILK.
See LOCAL GOYEENMENT (FOOD AND
DEINK).
MINERAL RIGHTS DUTY.
See REVENUE.
MINES AND MINERALS.
I. What are Minerals, 1003.
II. Mixing Companies, 1005.
in. Leases of Mines, 1005.
IV. Working and Winning Mines.
1. Rights and Obligations of Adjoining
Oirners. 1006.
2. Under and Adjoinitig Railwaijs. 1006.
V. Coal Mines.
1. Regulation and Inspection of, 1007.
2. Miners' Wages, 1012.
I. WHAT AEE MIKEEALS.
See also Vol. IX. 11G8. 2435.
Substance not Regarded as a Mineral at
Date of Acquisition of Lands — Oil Shale.l —
A private Act passed in IftlT. authorising the
construction of a canal, reserved to the owners
of any lands through which the canal should
be made " the mines and minerals lying within
or under the said lands." A statutory form
was also provided by which lands acquired for
the purpose of making the canal might be
conveyed to the canal company, the registra-
tion of which was declared to have the same
effect as a formal disposition followed by
charter and sasine. The price of certain lands
required for the formation of the canal was
agreed upon and consigned in 1818, in which
year the canal company entered into possession
of them, and the canal was constructed and
opened for traffic in 1822. The statutory con-
veyance of these lands, however, was not
completed and registered until 1862. In 1909
the representative of the vendor of the lands
brought an action against the canal proprietors,
in which he sought a declaration of his right
of property in a seam of oil shale subjacent
and adjacent to the canal within the lands in
question. It was admitted by the defenders
that by 1862 oil shale had become recognised
as a " mineral " in the sense of the reserva-
tion, but they denied that it was recognised
as a " mineral " in 1818 : — Held (Lord John-
ston dissenting), first, that what was denoted
by the term '" mineral " was to be ascertained
as at 1818, the date when possession of the
lands passed to the defenders, and not at 1862,
the date of the statutory conveyance ; and
secondly, that in 1818 oil shale was not
described as a mineral in the vernacular of the
mining world, the commercial world, and land-
owners, and therefore that the action failed.
Linlithgow (Marquis) v. North British Rail-
icay. [1912] S. C. 1327— Ct. of Sess.
See s.c. in H.L. (infra).
Decision of the Court of Sessions ([1912]
S. C. 1327) affirmed on the construction of the
private Act of 1817, the House expressing no
opinion upon the question whether shale was
a mineral. Linlithgoto (Marquis) v. North
British Railway. [1914] A.C.820; [1914] S.C.
(H.L.) 38— H.L. (Sc.)
Freestone — Proof — Sufficiency of Aver-
ment.] — Whether or not a particular sub-
stance— such as freestone — is a " mineral "
within the meaning of sections 70 and 71 of
the Eailways Clauses (Consolidation) Act,
1845, is a question of fact ; and averments that
the substance in question is a mineral in the
vernacular of the mining and commercial
worlds and the world of landowners, excep-
tional in use, value, and character, and not the
common rock of the district or substratum of
the soil, are sufficiently specific to justify a
proof. Symington v. Caledonian Railway,
81 L. J. P.C. 155: [1912] A.C. 87; 106 L. T.
193; 56 S. J. 87— H.L. (Sc.)
Decision of the Court of Session ([1911]
S. C. 552) reversed. lb.
" Coal, ironstone, slate, or other minerals "
— Fireclay." — " Minerals " which by the Eail-
ways Clauses Consolidation (Scotland) Act,
1845, are excepted from the conveyance of
lands to a railway company include seams of
fireclay and anything exceptional in use,
character, or value which can be embraced
within the term " minerals " in the vernacular
of the mining and commercial worlds and of
the landowners. Caledonian Raihcay v. Glen-
boig Union Fireclay Co., 80 L. J. P.C. 128;
1005
MIXES AND MINERALS.
1006
[1911] A.C. 290; 104 L. T. 657; 75 J. P. 377
— H.L. (Sc.)
II. MINING COMPANIES.
Stannaries — Partnership — "Company"
— Winding-up — Jurisdiction — High Court —
County Court.] — A partnership " formed for
working " mines within the Stannaries is by
virtue of the definition of " company " in sec-
tion 2 of the Stannaries Act, 1887, a " com-
pany " within section 28 of that Act over
which the Court of the Vice-Warden of the
Stannaries had jurisdiction in winding-up.
This jurisdiction which by section 28 is to be
the same as that formerly exercised by the
Vice- Warden's Court under section 81 of the
Companies Act, 1862, over incorporated com-
panies " engaged in working " mines within
the Stannaries, was exclusive, and is now by
virtue of the Stannaries Court (Abolition) Act,
1896, vested exclusively in the County Courts
of Cornwall. Dunbar v. Harvey, 83 L. J.
Ch. 18; [1913] 2 Ch. 530; 109 L. T. 285;
20 Manson, 388; 57 S. J. 686— C.A.
Decision of Neville, J. (82 L. J. Ch. 452;
20 Manson, 269j, affirmed. lb.
The High Court has jurisdiction under
section 133, sub-section 1 of the Companies
(Consolidation) Act, 1908, to transfer to the
Court exercising the Stannaries jurisdiction a
petition to wind up a company formed to work
mines within the Stannaries. Qucere, whether
the High Court has jurisdiction to retain such
a petition. Radium Ore Mines, In re,
110 L. T. 57 ; 30 T. L. E. 66— C.A.
III. LEASES OF MINES.
Tenant for Life and Remainderman — Will
Directing Sale of Real Estate — Power to Post-
pone— Direction as to Payment of Rents and
Profits till Sale — Rents and Royalties under
Mining Leases — Open Mines.] — Testator gave
his real and personal estate to a trustee upon
trusts for sale and conversion and investment
of the proceeds of sale, and gave one fourth
part of his residuary trust fund in trust to
pay the income thereof to A. during his life
and after his death upon trusts in favour of
his children, and gave another fourth part on
similar trusts in favour of B. and her
children ; and the testator empowered his
trustee to postpone the sale and conversion of
any part of his real and personal estate for
so long as he should think fit, and directed
that the " rents, profits and income " of such
parts of his estate as should remain unsold
and unconverted should be paid to the persons
to whom the income of the proceeds of such
sale and conversion would be payable under
his will if such sale and conversion had been
actually made. The testator's estate com-
prised open mines which were leased to lessees
and were still unsold : — Held, that under the
terms of the M-ill A. and B. were respectively
entitled to receive the whole of the rents and
royalties attributable to their resp(!ctive shares,
no part being retained as capital. Morgan, In
re; Vachell v. Morgan, 83 L. J. Ch. 573;
[1914] 1 Ch. 910; 110 Tj. T. 903— Sargant, J.
Testator in 1889 granted a lease of part of
a mineral area and entered into negotiations
with the lessees for a lease of the adjoining
part. He died in March, 1912, and the trustee
of his will continued the negotiations, and in
October, 1912, granted a lease to the same
lessees of such adjoining part which was
intended to be worked through the shaft sunk
on the part comprised in the lease of 1889 : —
Held, that the minerals comprised in the lease
of October, 1912, must be treated as an open
mine at the date of the testator's death.
Chaytor v. Trotter (87 L. T. 33) applied. 7b.
In 1883 a lease of minerals was made to
lessees, who worked them through a shaft sunk
on other land. In 1897 the lessees surrendered
this lease to the testator owing to the working
becoming unprofitable, and the minerals
remained unworked till the testator's death
in 1912, though the testator had entered into
negotiations for continuing or resuming their
working. In December, 1912, the trustee of
the testator's will granted a new lease of these
minerals to new lessees, who worked them
through a shaft sunk on other land : — Held,
that these minerals must be treated as an open
mine at the date of the testator's death. lb.
IV. WORKING AND WINNING MINES.
See also Vol. IX. 1213, 2442.
1. Eights a^t> Obligations of Adjoining
Owners.
Grant of Land, Reserving Minerals — Right
to Work them " in as full and ample a way "
as before Grant — No Express Reservation of
Right to Let Down Surface — Necessary Im-
plication of Right.] — In 1829 a vendor who
was then owner in fee of certain lands con-
veyed them to a purchaser, but excepting and
I'eserving all the minerals thereunder and the
means and power of working them "in as full
and ample a way and manner as if these
presents had not been made and executed."
There was a compensation clause, but only for
damage by surface workings. The deed gave
no express right in terms to let down : — Held,
that by necessary implication from the words
"in as full and ample a way and manner ""
the right to let down the surface in working
the minerals was reserved. Beard v. Moira
Colliery Co., 84 L. J. Ch. 155; [1915] 1 Ch.
257; 112 L. T. 227; 59 S. J. 103-C.A.
Restricted Interpretation of Words "in as
full and ample a way " in Inclosure Acts —
Not Applicable to Construction of Deeds.] —
The restricted interpretation of such words in
the construction of Inclosure Acts is not applic-
able to the construction of deeds. lb.
2. UxDEB .AND Adjoining Railways.
Lateral Support — Mines Lying beyond the
Forty Yards Limit — Natural Right.] — The
right to lateral support is not an easement
arising out of grant or by implication. It is
a natural right of property. In order to take
away such a natural right of property there
nuist be something more than a conjectural
intention on the part of any statute which
may affect it : there must be a plain indication
of intention. The statutory mining code con-
1007
MmES AND MINERALS.
1008
tained in sections 78-85 of the Railways
Clauses Consolidation Act, 1845, has no appli-
cation outside the limit of forty yards or other
limit prescribed by the special Act, and the
railway company's common law right to lateral
support from minerals outside the limit is
unaffected thereby. Hoicley Park Coal and
Cannel Co. v. London and North -Western
Railway, 82 L. J. Ch. 76; [1913] A.C. 11:
107 L. T. 625 ; 57 S. J. 42 ; 29 T. L. E. 35
— H.L. (E.)
Decision of the Court of Appeal (80 L. J.
Ch. 537; [1911] 2 Ch. 97) affirmed. lb.
Y. COAL MINES.
See also Vol. IX. 1280, 2453.
1. ReCtLXATion and Inspection of.
Negligence — Duty of Owners — Competence
of Managers.] — A miner lost his life in conse-
quence of the presence in the mine of carbon
mon-o.xide gas, of which there had been pre-
vious indications. The managers, for w-hose
competence the owners are by the Coal Mines
Regulation Act, 1887, made responsible, had
no special knowledge of this obscure and
noxious gas : — Held, that the mine owners
were liable in damages at common law for
negligence for failure to appoint managers
wit!i the requisite knowledge. Butler or Black
V. Fife Coal Co., 81 L. J. P.C. 97; [1912]
A.C. 149; 106 L. T. 161; 28 T. L. E. 150—
H.L. (Sc.)
Decision of the Court of Session ([1909]
S. C. 152) reversed. lb.
Breach of Statutory Duty — Duty of Mine
Owner.] — Section 16, sul)-sectiou 1 of the
Coal Mines Regulation Act, 1887, provides that
" the owner ... of a mine shall not employ
any person in the mine . . . unless . . . (c)
proper apparatus for raising and lowering
persons at each shaft . . . shall be kept on
the works belonging to the mine ; and such
apparatus . . . shall be constantly available
for use." The manager of the respondent
colliery increased from twenty to twenty-six
the number of men authorised to be lowered or
raised in a cage at a time. The brake power
on the winding engine was adequate for
twenty, but not for twenty-six men. The
appellant's husband was killed in consequence
of the breakdown of the winding engine by the
snapping of the spanner bar, which was
defective, and the insufficiency of the brake,
with the result that a cage fell : — Held, that
the respondents had been guilty of a breach
of nn absolute statutory obligation imposed by
section 16, for which they were liable, and that
no question of negligence or of the doctrine of
common employment was relevant. Britannia
Merthyr Coal Co. v. David (79 L. J. K.B. 153;
[1910] A.C. 74) explained. Watkins v. Naval
CoUierii Co., 81 L. J. K.B. 1056; [1912]
A.C. 693; 107 L. T. 321; 56 S. J. 719;
28 T. L. R. 569— H.L. (E.)
Decision of the Court of Appeal (80 L. J.
K.B. 746; [1911] 2 K.B. 162) reversed. lb.
" Mechanical haulage " — Haulage Worked
by Gravity — Safeguards.] — A system of haul-
age was in use in a mine by which an empty
tub was drawn up an incline by the weight
of a loaded tub descending on a parallel set
of rails and attached to the empty tub by a
chain passing round a pulley situated at the
top of the incline : — Held, that this was not a
system of " mechanical haulage " within sec-
tion 46, sub-section 4 of the Coal Mines Act,
1911, and that accordingly the mine owners
were not bound to provide certain safeguards
which under the section were compulsory " on
every haulage road where mechanical haulage
... is used." Soutar v. Reid, [1913]
S. C. (J.) 84— Ct. of Just.
Explosives — Price to Workmen — " Actual
net cost to the owner."] — Section 61, sub-
section 2 of the Coal Mines Act, 1911, provides
that " No explosives shall be taken into or
used in any mine except explosives provided
by the owner, and the price, if any, charged
by the owner to the workman for any ex-
plosives so provided shall not exceed the actual
net cost to the owner " : — Held, that the words
actual net cost to the owner " were not
limited to the sum paid by the owner for the
explosives up to the time when they were
delivered into his possession, but included a
charge incun-ed by him in respect of the
delivery of the explosives to the workman.
Eraiis V. Givendraeth .Anthracite Colliery Co..
83 L. .J. K.B. 1.312; [1914] 3 K.B. 23:
110 L. T. 959; 30 T. L. R. 376— C. A.
Decision of the Divisional Court (82 L. J.
K.B. 983; [1913] 3 K.B. 100) reversed. lb.
Maximum Period of Consecutive Under-
ground Employment of Workman — Excep-
tions — " Meeting danger or apprehended
danger."] — The Coal Mines Regulation Act,
1908, enacts (section 1, sub-section 1) that a
workman shall not be below ground for more
than eight hours during any consecutive
twenty-four, but (sub-section 2) that no contra-
vention of this provision shall be deemed to
take place in the case of any workman who is
below ground for the purpose (inter alia)
of " meeting any danger or apprehended
danger " : — Held, that " danger " was limited
to danger arising out of some abnormal
occurrence, and accordingly' that workmen
engaged on a Sunday night and Monday
morning in repairing falls, such as were
expected to occur, and normally did occur,
every week when the pit was idle between
Saturday and Monday, did not fall within the
exception. Thorneycroft v. Archibald, [1913]
S. C. (J.) 45— Ct. of Just.
Firemen — Shifts.] — Sub-sections 1 and 2
of section 1 of the Coal Mines Regulation
Act, 1908, apply to firemen (with the modifica-
tion that in their case nine and a-half hours
is to be substituted in each sub-section for
eight hours), and accordingly that there had
been no contravention of the Act in the case
of two firemen members of a shift who had
been underground for more than fifteen hours,
in respect that less than nine and a half hours
had elapsed between the time when the last
member of the shift left the surface and the
1009
MIXES AND MINERALS.
1010
first member returned thereto. Roger v.
Stevenson, [1913] S. C. (J.) 30— Ct. of Just.
Observed, that the question whether men
are working in shifts or not is a question of
fact for the Judge who tries tlie case, and is
to be determined on a strict view of the
definition of a shift contained in section 1 of
the Act. lb.
" Connivance " at Contravention of
Statutory Provision.] — The respondent, the
manager of a colliery, was convicted by
Justices on a charge of conniving at the
failure of a workman working below ground
in a mine to coniply with section 1 of the Coal
Mines Kegulation Act, 1908. On appeal to
quarter sessions it appeared that the respondent
took no action when the Act was not complied
with except sometimes cautioning the men and
sometimes threatening that they should be
suspended for a day. It was admitted that
he had not aided or encouraged the workmen
to disobey the law ; and the only statutory
duty which he had failed to perform was to
enter in the register required to be kept by
section 2 of the Act the reason why the work-
man was below ground for more than the
period fixed ; but he explained that this
omission was due to his inability to ascertain
a definite reason for the workman failing to
reach the surface in proper time. Quarter
sessions allowed the appeal, holding that the
respondent liad not connived at a breach of
the Act : — Held, that upon the evidence it was
open to quarter sessions to come to that con-
clusion. Gregory v. Walker. 77 J. P. 55;
29 T. L. E. 51— D.
Special Rules — Refusal to Obey Lawful
Command.] — Under the powers given by sec-
tion 51 of the Coal Mines Regulation Act.
1887, special rules were made for a mine pro-
viding that all persons employed in the mine
should be under the control of the manager,
under-manager. and deputies, and should at
all times obey their lawful commands, and that
any person committing a breach of any of the
special rules should be guilty of an offence
against the Act. A number of trammers in
a mine, whose duty was to convey tubs when
filled with coal to the " straight road," and
bring back the empty tubs, their pay vai-ying
with the number of tubs conveyed by them,
after being at work for some hours stopped
work, and asked to he drawn out of the mine.
They were ordered by the under-manager to
return to work, but they refused to do so,
saying that they had not a sufficiency of tubs,
and owing to their stopping work certain
miners were also compelled to leave work.
One of the trammers having been summoned
under one of the above special rules, and con-
victed,— Held, that the conviction under the
special rule was right. Colbeck v. Whitwham,
107 L. T. 22 : IP, J. P. 291 : 23 Cox C.C. 50— D.
Accumulation of Coal Dust — Clearing
Away "as far as practicable" — Respon-
sibility of Manager.; — On an intonnutKni
against the manager of a colliery for not
causing the floor, roof, and sides to be
systematically cleared so as to prevent, as far
as practicable, coal dust from accumulating.
conformably with the provisions of section 62,
sub-section 3 of the Coal Mines Act, 1911, the
Justices found that it was not practicable to
carry out the provision of the sub-section, and
that all that was reasonably practicable under
the circumstances had been done : — Held, that
the manager was exempted by sub-section 3
of section 102 from the penalty for non-
compliance with the provisions of sub-section 3
of section 62. Atkinson v. Shaio, 84 L. J.
K.B. 1748: [1915] 2 K.B. 768; 113 L. T. 485;
79 J. P. 376; .31 T. L. E. 421— D.
Ventilation — Cavity Caused by Fall of Roof
— Responsibility of Manager.] — The manager
of a coal mine is responsible for adequate and
constant ventilation under section 29, sub-
section 1 of the Coal Mines Act, 1911 ; and
he is not relieved from responsibility by virtue
of section 75, because a competent staff of
firemen has been appointed. Where by a fall
in the roof in a level a cavity was formed,
and to repair it timbering was used which
prevented the air current reaching it and
sufficiently diluting inflammable and noxious
gases, the manager was held responsible for
not producing adequate and constant ventila-
tion in accordance with section 29 of the Act,
although work was not at the time being
carried on in the mine. Atkinson v. Morgan,
84 L. J. K.B. 1431; [1915] 3 K.B. 23;
113 L. T. 488; 79 J. P. 378— D.
Fireman Failing to Inspect — Responsi-
bility of Owners and Agent — Exemption from
Penalty.] — Section 102, sub-section 1 of the
Coal Mines Act, 1911, is intended to afford an
additional protection to that given by section 75
to the owner or agent of a mine. If they have
not been " in the habit of taking " part in the
management of the mine, and have not taken
part in its management in regard to the par-
ticular matter in question, protection is not
limited to the case \mder section 75, which
makes exemption depend on having taken
means to prevent contravention of. or non-
compliance with, the provisions of Part II. of
the Act. The question of the habit of manage-
ment in the particular instance is one of fact
for the Justices. Atkinson v. Jeffreys,
84 L. J. K.B. 1739; 113 L. T. 492; 79 J. P.
373— D.
Informations were preferred respectively
against the fireman of a mine for having failed
to inspect the mine immediately before the
commencement of work conformably with
section 64 of the Coal Mines Act, 1911. and
against the agent and owners for failing to
enforce the regulations providing for such
inspections in accordance with sections 64 and
75 of the Act. The Justices convicted the
fireman of an offence under section 64, but
dismissed the informations against the agents
and owners : — Held, that the decision of the
Justices was right. //).
Control of Detonators.] — The Explosives in
Coal Mines Order of September, 1913. pro-
vides, section 1 (e): " fi) Detonators shall be
under the control of the n\anager of the mine,
or some person or persons specially appointed
in writing by the manager for the purpose,
and shall be issued onlv " to shot firera
1011
.AILXES AND MINERALS.
1012
appointed in terras of Part II. of the Order.
" or (in mines to which Part II. of this Order
does not apply) to officials specially authorised
in writing by the manager, (ii) Shot firers
and other authorised persons shall keep all
detonators issued to them, until about to be
used for the charging of a shot hole, in a
suitable case or box, securely locked, separate
from any other explosives. ..." In a mine
to which Part II. of the Order did not apply,
two of the firemen were given written
authority from the manager to have charge of
detonators. On a certain morning one of these
firemen, in obedience to verbal orders, went
to the store and took out a case of detonators,
which he handed at the pit bottom to the other
fireman, who then proceeded to distribute them,
one or two hours before they would be required
for firing shots, among a number of miners
who were proceeding to their work. Each of
these miners was authorised in writing by the
manager to fire shots, and each had a case in
which he kept the detonators locked until they
were actually required for firing a shot. In a
charge against the manager of the mine for
a contravention of the Order it was contended
for the prosecution that there ought to have
been a special official in control of the
detonators in the store, who should have issued
them to officials (other than ordinary miners)
specially authorised in writing, who in their
turn should have retained them in their keep-
ing and given them to the miners only when
the shots were about to be fired : — Held
(Lord Ormidale dissenting), that the manager
had not been guilty of a contravention of the
Order, in respect that the firemen were per-
sons specially appointed in writing to have
" control " of detonators within the meaning
of the Order, and that the miners to whom the
detonators had been issued were " officials
specially authorised in writing " also within
the meaning of the Order. Tennant v.
AUardice. [1915] S. C. (J.) 9— Ct. of Just.
Electric Cables in Coal Mines.] — Eegula-
tion 129 (c) of the General Regulations dated
July 10, 1913. made under the Coal Mines
Act, 1911, provides iinter alia) that where
roadways conveying electric cables are also
used for mechanical haulage the electric cables
must be protected by a metallic covering.
Eegulation 137 (h) exempts from this pro-
vision " any apparatus which was in use before
June 1, 1911," and which conformed to the
requirements then in force. Unprotected
electric cables, which had been in use in a
ventilating road in a coal mine prior to June,
1911, and conformed to the requirements at
that date, were transferred in 1914 to a
mechanical haulage roadway : — Held, that
they did not fall within the exemption in
Regulation 137 (b) in respect that, in view of
their changed environment, they were no
longer an " apparatus which was in use "
before June, 1911; and accordingly, that they
constituted a contravention of Regulation
129 (c). Shotts Iron Co. \. Thomson. [1915]
S. C. (J.) 29— Ct. of Just.
Prosecution with Consent in Writing of the
Secretary of State — Proof of Consent.! —
Fnder section 102, sub-section 5 of the Coal
Mines Act, 1911, prosecutions for offences
under the Act must in certain circumstances
be " with the consent in writing of the Secre-
tary of State " : — Held, that evidence of the
consent is unnecessary and incompetent, the
statement of the Lord-Advocate or of his
representative that it has been obtained being
sufficient. Semble, that if evidence were
required and competent, a letter requesting
that proceedings should be taken, signed by
an Under- Secreatory of the Home Department,
was sufficient, and that the signature of the
Secretary of State himself was unnecessary.
Stevenson v. Roger, [191-5] S. C. (J.) 24— Ct.
of Just.
Check Weigher — Appointment to Inspect
Mine on Behalf of Workmen — Eligibility J —
A person holding the office of check weigher
at a mine under section 13 of the Coal Mines
Regulation Act, 1887, is eligible to be
appointed by the workmen employed in the
mine to inspect the mine on their behalf under
section 16 of the Coal Mines Act, 1911. Date
V. Gas Coal Collieries, 84 L. J. K.B. 1529;
[1915] 2 K.B. 454 ; 113 L. T. 205 ; 31 T. L. R.
341— C.A.
Judgment of Bailhache, J. (83 L. J. K.B.
1827; [1914] 3 K.B. 1175), affirmed. Ih.
2. Mixers' ^^^\GEs.
Minimum Wage — Butty System — Payment
of Holer's Wages by Contractor or Stall-
man — Liability of Mine Owner for Deficit.] —
Section 1, sub-section 1 of the Coal Mines
(Minimum Wage) Act, 1912, which came into
operation on March 29. 1912, provides that,
subject to certain conditions, it shall be an
implied term of every contract for the employ-
ment of a workman underground in a coal
mine that the employer shall pay to that work-
man wages at not less than the minimum rate
settled under the Act and applicable to that
workman. The plaintiff was a " holer " in the
employment of the defendant company under
an agreement to observe certain rules and
regulations, rule 3 of which provided that he
should be deemed to be a servant of the com-
pany to the extent only that he should be
bound to obey these rules and regulations.
Another rule reserved to the company the
exclusive right of dismissing him and of
receiving notice from him. The holer's work
consisted in removing the earth from the coal
obtained by the " stallman " or contractor,
whilst a filler's duty consisted in filling the
tubs with the coal. The " stallman " or con-
tractor arranged with the company to receive
a certain sum of money (known as the tonnage
rate) per ton of coal obtained by him from a
" stall " or certain area of the mine, and out
of this sum he paid the holer and filler
respectively certain amounts per " stint " (a
portion of the said area), and which amounts
were based on prices known as district rates.
The tonnage and district rates had been in
force for some years, in accordance with
agreements made between the colliers (includ-
ing the stallmen, holers, and fillers) or their
representatives, and the company. The stall-
man had no choice of the men working in the
stalls, who were appointed by the company,
1013
MINES AND MINEKALS.
1014
and the company, in paying to the stallman
his tonnage rate, deducted therefrom the
fines, &c., contributions for siciv chib and
under the Insurance Act, 1911, payable
respectively by the holer and filler, but paid
their own contribution under that Act. The
rule as to dismissal and notice was observed
in practice. After the Coal Mines (Minimum
Wage) Act, 1912, came into operation, but
before the minimum wage was ascertained in
accordance with its provisions, the plaintiff
continued to work as a holer, receiving from
the stallman his wages based on the district
rate ; and on the publication of the minimum
wage it was found that there was a deficit to
which he was entitled, and he claimed the
same from the company. The company con-
tended that he must look to the stallman for
payment. In an action, brought in the County
Court against the company for the difference
between the district rate and the minimum
wage, the Judge awarded the plaintiff the
amount of his claim, and his decision was
affirmed by the Divisional Court : — Held, that
the contract between the parties was contained
in written documents, and oral evidence was
not admissible to vary the written documents ;
that, having regard in particular to rule 3,
there was no evidence of any contract by the
company to pay wages to the plaintiff, and
that, although for the proper working and
safety of the mine the plaintiff was the disci-
plinary servant of the company, the company
were not his paymasters ; and that as there
was no contract to pay, there was no implied
term to pay the minimum wage. Hooley v.
Butterley Colliery Co., 84 L. J. K.B. 1969—
C.A.
Decision of the Divisional Court (112 L. T.
449) reversed. lb.
" Dayman " — Wages — Liability of Colliery
Owner — Statutory Contract.) — The defendants
were the owners of a colliery in which the
colliers worked in gangs, each gang working
in a separate " stall '" and consisting of one
or more " stallmen " or " contractors " to
whom the stall was assigned by the defendants,
and usually also of several " daymen " who
assisted the stallmen. The plaintiff was
employed at the mine aas a dayman, and, like
the other employees, he had entered upon his
employment by signing a form of contract
which provided that he would serve the
defendants (inter alia) on the terms of the
contract rules in force at the colliery. The
plaintiff worked in a stall for several days,
and the amount of his wages and of other
wages earned in the stall was paid by the
defendants to one of the stallmen, who
absconded without paying the plaintiff. The
plaintiff brought an action against the defen-
dants in the County Court claiming his wages
for these days at the minimum rate fixed for
the district. The evidence went to shew that
the practice at the colliery was that the defen
dants paid to a stallman on the fortnightly
pay day the net aggregate amount due for the
work done in the stall, and that out of that
amount the stallman paid to each dayman
whatever wage, not less than the minimum
wage, the latter, in the opinion of the stall-
man, was worth. The County Court Judge,
having regard to the terms of the form of
contract, and of the contract rules, and to the
evidence, held that the contract between the
plaintiffs and the defendants did not impose
any obligation on the defendants to pay the
plaintiff his wages; and, further, that if it
did impose any such obligation on the defen-
dants, they were to be discharged therefrom
on paying the stallman ; and he gave judgment
for the defendants. The Divisional Court
af&rmed the judgment of the County Court
Judge. The plaintiff appealed : — Held, by the
Court of Appeal, first, that there was evidence
to support the conclusions of the County Court
Judge as to the nature of the contract between
the plaintiff and the defendants : and secondly,
that as there was no already existing contract
between the plaintiff and the defendants as
to payment of wages, section 1, sub-section 1
of the" Coal Mines (Minimum Wage) Act. 1912,
did not create such a contract. Richards v.
Wrexham and Acton Collieries (83 L. J. K.B.
687 : [1914] 2 K.B. 497) discussed and followed
on both points. Higginsnn v. Blackicell
Colliery Co.; Pitchford v. Same, 84 L. J. K.B.
1189 : il2 L. T. 442 : 31 T. L. R. 95— C.A.
Decision of Divisional Court (30 T. L. R.
17-5) affirmed. 7^.
"Filler" — Wages — Liability of Colliery
Owner — Privity of Contract — Statutory
Obligation.] — The defendants were the owners
of a colliery in which the plaintiff was
employed as a filler. The colliers employed
at the colliery worked in " setts." To each
sett of colliers at least one filler was attached,
whose duty it w^as to load into tubs the coal
got by the colliers of the sett. For many years
before the passing of the Act mentioned below
the practice as to payment of wages in the
colliery had been as follows : The colliers were
paid by the defendants weekly wages according
to the quantity of coal got by them, the colliers
of each sett appointing one of their number,
called the contractor, to receive from the
defendants the wages due each week to the
colliers of the sett. The filler was paid a
weekly wage at the fixed rate of os. lid. a
day, which was received by him from the con-
tractor of his sett out of the colliers' wages;
and, except under a special arrangement which
it is not material to consider the defendants
had never made any allowance to the colliers
in respect of the amount so paid to the fillers.
The Coal Mines (Minimum Wage) Act, 1912,
provided by section 1. sub-section 1, that it
should be an implied term of every contract
for the employment of a workman underground
in a coal mine that the employer should pay
him wages at not less than the minimum rate
settled under the Act (unless in certain circum-
stances which it is not material to specify), and
that any agreement for the payment of wages
in so far as it was in contravention of this
provision should be void, and by section 2.
sub-section 1. that nothing in the Act should
prejudice any agreement or custom existing
before the Act for the payment of wages at a
rate higher than the minimum. For the dis-
trict in question the minimum wage of a collier
was fixed at 6.'!. a day, and of a filler at
4,9. lOrf. a day. The plaintiff brought an action
against the defendants in the County Court
1015
MINES AND MINERALS.
1016
claiming 4s. id., the balance of wages alleged
to be due to him for four days' work, being the
difiference between four days at 5s. lid. a day
and four days at 4s. lOd. a day, which had
been paid to him by the defendants. The
evidence went to show that the fillers were
engaged, controlled, sent to work with a par-
ticular sett, and might be dismissed by the
defendants' manager, but that they were paid
their wages by the contractor of the sett and
had always received them without deduction,
even though the colliers went short. The
County Court Judge found that there was a
custom to pay the filler a wage of 5s. llrf. a
day, that this had always been paid by the
contractor on behalf of the colliers, and that
there was no privity of contract in regard to
wages between the plaintiff and the defendants,
and he gave judgment for the defendants.
The Divisional Court reversed this decision,
holding that the evidence was conclusive
of privity of contract between the plaintiff
and the defendants : — Held, first, that, apart
from the Act of 1912, there was evidence on
which the County Court Judge could properly
find that there was no privity of contract in
respect of wages between tlae plaintiff and
the defendants; secondly (Vaughan Williams,
L.J., dissenting on this point), that the Act of
1912 did not create such privity of contract
between the plaintiff and the defendants, inas-
much as it did not apply in the case of persons
between whom there did not exist indepen-
dently of the Act a contract for employment
at wages, and therefore that the defendants
were not liable and that the appeal should be
allowed. Richards v. Wrexham and Acton
Collieries ; Davies v. Same, 83 L. J. K.B. 687 ;
[1914] 2 K.B. 497 ; 110 L. T. 402 ; 30 T. L. E.
228— C. A.
Minimum Wage in Coal Mine — Rules —
Validity.] — The chairman of a joint district
board created by the Coal Mines (Minimum
Wage) Act, 1912, acting under section 4, sub-
section 2 of the Act, settled the minimum rates
of wages and the district rules for the purposes
of the Act for the district. Rule 5 provided
that if at any time any workman should in
consequence of circumstances over which he
alleged he had no control be unable to perform
such an amount of work as would entitle him
to a sum equal to the daily minimum rate,
he should forthwith give notice thereof to the
ofiicial in charge of the district, and that if he
acted in contravention of this rule he should
forfeit the right to wages at the minimum
rate for the pay in which such contravention
took place. Rule 7 provided that, in ascer-
taining whether the minimum wage had been
earned by any workman on piecework, the
total earnings during two consecutive weeks
should be divided by the number of shifts and
parts of shifts he had worked during such two
weeks, so that the average actual earnings
thus ascertained might be compared with the
minimum wage. The plaintiffs, who were
colliers employed at the defendants' colliery
within the district, where the men were paid
weekly, claimed a declaration that rules 5 and 7
were ultra vires : — Held, that rule 5 was intra
vires and rule 7 was ultra vires. Davies v.
Glamorgan Coal Co., 83 L. J. K.B. 831;
[1914] 1 K.B. 674; 110 L. T. 224; 58 S. J.
184; 30 T. L. R. 161— C.A.
Judgment of Pickford, J. (82 L. J. K.B.
956; [1913] 3 K.B. 222), varied. lb.
District Rules — Earnings of Miner —
Method of Ascertaining Earnings — Certificate
— Right of Miner to Sue for Minimum Wage.]
— Rule 4 of the district rules made under the
Coal Mines (Minimum Wage) Act, 1912, by a
joint district board, provided that " for the
purpose of ascertaining what sum (if any)
is due to a workman for any pay week in
respect of his right to wages at a minimum
rate, regard shall be had to the amount of
his actual earnings during " a period consisting
" of the pay week in question and as few pre-
ceding pay weeks as shall be necessary to
make up a period during which the colliery
has worked not less than ten full days, pro-
vided nevertheless that the period shall not
be longer than four pay weeks in all." Rule 7
provided that if any question shall arise :
(a) whether any workman in the district is a
workman to whom the minimum rate of wages
is applicable, or (b) whether a workman has
complied with the condition laid down by
these rules, or (c) whether a workman who has
not complied with such conditions has forfeited
his right to wages at the minimum rate, such
question shall be decided in the last resort by
a board, and failing a settlement by the board
the independent chairman shall be called in
and he shall have power to decide the question,
and the decision of the board or the
independent chairman shall in every case be
final and binding, and a certificate of the
decision shall be drawn up which shall be con-
clusive evidence of the decision arrived at.
A strike of miners took place at the defendant
company's colliery in February, 1912. On
April 15, 1912, the miners returned to work,
but only worked one day during the week
ending April 16. On April 17, 1912, the
plaintiff, who was a miner in the employ of
the defendant company, returned to work
along with the other miners, and during the
week April 17 to 23, 1912, the defendants"
colliery worked five and a half days. The
plaintiff was paid 19s. id. for the week
April 17 to 25. He claimed to be paid the
difference between that amount and 11. lis. 6d.,
the amount due to him according to the mini-
mum rate as settled under the Act for his
district. The dispute went before the district
board and finally before the independent chair-
man, who decided the dispute and gave a
certificate that the plaintiff was a person
excluded under the district rules from the
operation of section 1 of the Act, and that
he was not a workman to whom the minimum
rate of wage was applicable in respect of the
pay week ending April 23, 1912. The plaintiff
then brought an action against the defendants
in the County Court for wages due to him
under the Coal Mines (Minimum Wage) Act.
1912 : — Held, that it was a condition pre-
cedent to the right of a workman to bring an
action in the County Court to recover from
his employer a minimum wage as settled under
the Act ; that he should have obtained a certifi-
cate from the district board or from the
independent chairman certifying that he was
1017
MIXES AND MINERALS.
1018
a workman to whom the minimum rate of
wages was applicable ; and that as the plaintiff
had not obtained such certificate he could not
recover : — Held, further, that rule 4 of the
district rules was not ultra vires. Davies v.
Glamorgan Coal Co. (82 L. J. K.B. 956;
[1913] 3 K.B. 222) discussed. Raridle v. Clay
Cross Co., 83 L. J. K.B. 167; [1913] 3 K.B.
795; 109 L. T. 522; 29 T. L. R. 624— D.
Work in Abnormal Places in Mine.] —
By the rules rej.'ulating the management of
a colliery the minimum standard of wages for
colliers working in hard or difficult places was
fixed at 6s. a day. The plaintiffs, who were
colliers engaged at the particular colliery, had
worked at a place in the mine which was a
hard or difficult one within the meaning of
the rules. In an action by the plaintiffs to
recover their wages the County Court Judge
awarded them the difference between what
they actually earned and what they would
have earned if the place had been a normal
one, and he fixed the latter sum at 5s. per
day : — Held, that the County Court Judge was
wrong, and that the plaintiffs were entitled to
be paid at the rate of 6.9. per day. Jones v.
Phcpnir Colliery Co., 28 T. L. R. 374— D.
Action to Recover Wages — Condition
Precedent — Certificate that Workman is Ex-
cluded— Production of Certificate.^ — A miner
brought an action in the County Court, under
the Coal Mines (Minimum Wage) Act, 1912,
to recover wages alleged to be due. At the
trial it was admitted on his behalf that a
dispute between him and his employers had
been properly submitted to an umpire in
accordance with a district rule made under
the Act, that the certificate of the umpire
could not be put in in support of his case,
and that the case of Handle v. Clay Cross Co.
(83 L. J. K.B. 167 : [1913] 3 K.B. 795) was
fatal to him in that Court. The learned Judge
thereupon gave judgment for the defendants,
and his decision was affirmed by a Divisional
Court : — Held, that it was not a condition
precedent to the plaintiff's right to sue that
he should, at the stage which the proceedings
had reached, put in the certificate of the
umpire, and that the action must be remitted
to the County Court for further hearing.
Handle v. Clay Cross Co. (83 L. J. K.B. 167 ;
[1913] 3 K.B. 795) overruled on this point.
Barwell v. Neu-port Aherc.arn Black Vein
Steam Coal Co.. 84 L. J. K.B. 1105; [1915]
2 K.B. 256; 112 L. T. 806; 59 S. J. 233;
31 T. L. R. 136— C. A.
Wages Exceeding Minimum — Regularity
and Efficiency.] — A County Court Judge,
whose decision was affirmed by the Divisional
Court, held that the provisions of the Coal
Mines (Minimum Wage) Act, 1912, are
applicable, notwithstanding that a workman
may be receiving an amount for wages in
excess of the minimum rate settled under the
Act, and that the powers of the domestic
tribunal to decide a dispute as to the regularity
and efficiency of a miner's work are not thereby
ousted : — Held, on appeal, that the County
Court Judge had in fact found, and there was
evidence on which he could find, that the
workman's wages were based on the statutory
minimum rate, and were not the subject of a
common law contract. Fairbanks v. Florence
Coal and Iron Co., 84 L. J. K.B. 1115; [1915]
2 K.B. 714; 112 L. T. 1013— C. A.
Where a miner is suing for his minimum
wage, and a dispute under the Act is before the
domestic tribunal, the proper course is for the
Court to adjourn the trial in order that the
dispute may be decided. Barwell v. 'Newport
Abercarn Black Vein Steam Coal Co. (84 L. J.
K.B. 1105 ; [1915] 2 K.B. 256) followed. lb.
Decision of the Divisional Court (83 L. J.
K.B. 1063; [1914] 2 K.B. 461) affirmed. lb.
Agreement that in Certain Circum-
stances Workmen should Get Full Day's Pay
although Full Day not Worked— Effect of.] —
By an agreement made prior to 1912 between
the defendants and their workmen it was
agreed that if a fatal accident occurred in the
defendants' mine before twelve o'clock, the
day wagemeu in the district in which the
accident happened, if they came out, should
be paid a full day's wage : — Held, that in the
case of a workman who was getting a higher
wage than the minimum rate, this agreement
was not superseded by a rule made under the
Coal Mines (Minimum Wage) Act, 1912, which
provided that, in the event of any interruption
of work during a shift due to an emergencj*
over which the management had no control,
the workman should only be paid such a pro-
portion of the minimum rate as the time he
worked bore to the total number of hours of
the shift. Mackinnon v. North's Navigation
Collieries, 29 T. L. R. 615— Pickford, J.
Construction of Award — Meaning of
" Pits."]— The Joint District Board for West
Yorkshire constituted under the Coal Mines
(Minimum Wage) Act, 1912, were empowered
by section 2, sub-section 5 of the Act to sub-
divide West Yorkshire into two or more dis-
tricts, if desirable, for the purpose of settling
minimum rates of wages. The masters and
men upon the board were unable to agree as
to the division, and the chairman of the board
divided the district into two parts, fixing the
Great Northern main line to Leeds as the line
of division. By an award dated June 10, 1912,
the eastern subdivision was to include all pits
situate on the east of the Great Northern line,
as therein described, and the western sub-
division was to include all pits situate on the
west of the same railway, as similarly
described, and by the same part of his award
minimum rates of wages were fixed for each
subdivision. The plaintiffs, who were the
owners of the mine, claimed that their collieries
were in the western, and the defendant, who
represented the miners, claimed that they were
in the eastern subdivision, the importance of
the matter being that the rates of wages
applicable to the western subdivision were
lower than those applicable to the eastern sub-
division. The question of construction was the
sense in which the word " pits " was used in
the chairman's award. The Judge found as a
fact that the word " pits " was used to denote
(a) the shaft ; (6) the underground workings,
with or without the shafts ; and (c) the colliery
as a whole ; and that the primary meaning of
1019
MINES AND MINERALS— MISTAKE.
1020
" pits " was the shafts : — Held, first, that the
Court had jurisdiction under Order XXV.
rule 5 to put a construction upon the award to
the extent of declaring the rights of the parties
under it; and secondly, that the word " pits "
was used to mean the shafts by which the men
came up and went down, and that upon the
true meaning of the word "pits" the plain-
tiffs' colliery was in the eastern subdivision of
West Yorkshire. Lofthouse Colliery v. Ogden,
82 L. J. K.B. 910; [1913] 3 K.B. 120;
107 L. T. 827; 57 S. J. 186; 29 T. L. E. 179
— Bailhache, J.
Application for Revision of Minimum
Rates — Right of Applicants to Present their
Case to Joint District Board.] — Where an
application is made under section 3, sub-
section 2 of the Coal Mines (Minimum Wage)
Act, 1912, upon behalf of any workmen or
employers, as representing a considerable body
of opinion amongst either the workmen or
employers concerned, for the variation of the
existing minimum rate of wages as fixed by
the joint district board, the applicants are
entitled to present their case to the board
independently of their representatives on the
board. Rex v. Amphlett, 84 L. J. K.B. 884;
[1915] 2 K.B. 223; 112 L. T. 1077;
31 T. L. E. 229— D.
The procedure regulating the method in
which the case of the applicants is to be laid
before the board must be determined by the
board itself. lb.
MISREPRESENTATION.
MINISTER.
See ECCLESIASTICAL LAW.
MISDEMEANOUR.
See CRIMINAL LAW.
MISDESCRIPTION.
See VENDOE AND PUECHASEE.
MISDIRECTION.
See CEIMINAL LAW.
MISFEASANCE.
See COMPANY.
See FEAUD.
MISTAKE.
See also Vol. IX. 1293, 2460.
Banker — Money Paid under Mistake of Fact
— Liability of Banker to Refund.] — The posi-
tion of a banker does not differ from that of
any other recipient of money acting as factor
or agent ; and money paid to a banker under
a mistake of fact can be successfully re-
demanded from the banker by the person who
so paid it. Kerrison v. Glyn, Mills, Currie
d- Co., 81 L. J. K.B. 465; 105 L. T. 721;
17 Com. Cas. 41 ; 56 S. J. 139 ; 28 T. L. E. 106
— H.L. (E.)
The appellant, who lived in England, was
the English manager of a mine in Mexico.
By a system of revolving credit, he agreed to
pay to the respondents moneys paid to the
New York bankers of the mine. For this pur-
pose he had paid 500Z. to the respondents.
The New York bank stopped payment, and
the appellant immediately demanded repay-
ment of the 5001. The New York bank was
largely indebted to the respondents, who
claimed to retain the 500L : — Held, that the
appellant was entitled to be repaid the 5001.
lb.
Money Paid by Mistake — Right to Recover
— Agreement for Water Supply — Ignorance of
Consumer of his Rights — Condition Precedent
to Right to Supply.] — The claimants were the
owners of a colliery and of certain brick and
tile works for which a supply of water was
necessary. By an agreement entered into in
1910 between the claimants and the respon-
dents, who were the local water authority, it
was agreed that in the event of the claimants
being unable to obtain sufficient water for the
purposes of their works from all their available
sources of supply, the respondents would supply
the claimants with water at cost price not
exceeding 2d. per 1,000 gallons. The claimants'
supply of water from their available resources
proving insufficient for their requirements,
from the date of the agreement until June 30,
1910, they used over 81,000,000 gallons of
water supplied by the respondents. The
claimants did not call upon the respondents
to supply them at the rate of 2d. per 1,000
gallons, but paid the usual charge of 8d. per
1,000 gallons. The arbitrator found that the
claimants were, during the period between
June 24, 1900 (the date of the agreement),
and December 30, 1909, when they discovered
their rights under the agreement, bona fide
ignorant of the existence of legal rights of any
nature or extent whatsoever whereby they
could require the respondents to supply them
with water under the agreement ; that they
were ignorant of the covenants in the con-
veyance which related to such rights, and that
the sums paid in respect of the water consumed
1021
MISTAKE— MONEY COUNTS.
1022
were paid by inadvertence and in ignorance
of any legal rights entitling them as aforesaid.
In these circumstances the claimants sought to
recover the sum of 6d. upon each 1,000 gallons
of water paid by them in excess of the agreed
price. Bailhache, J., held that whether the
ignorance of the claimants was ignorance of
the fact that the agreement contained the
covenant in their favour, or whether their
ignorance consisted of what the meaning of
the covenant was, they were not prevented
from obtaining relief in respect of the money
overpaid by them if they were otherwise
entitled to it. He held upon the facts that the
claimants were entitled to recover 1,4'26Z. of
the amount claimed by them. Stanley v.
Nuneaton Corporation, 108 L. T. 986; 77 J. P.
349; 11 L. G. E. 902; .57 S. J. 592— C.A.
Held, on appeal, that the claimants were
not entitled under the agreement to a supply
of water at the rate of 2d. per 1.000 gallons
unless they gave notice to the respondents
that their sources of supply were insufficient ;
that such a notice was a condition precedent
to the claimants being entitled to the supply,
and, as no such notice had been given, the
claimants were not entitled to the supply, and
therefore had no claim to be repaid the money
which they had already paid. 7b.
Decision of Bailhache, J. (107 L. T. 760;
77 J. P. 89 ; 11 L. G. E. 397), reversed. 76.
Tithe Rentcharge — Payment in Error — Mis-
take of Fact — Right to Recover — Principal
and Agent.] — Where certain moneys payable
as tithe rentcharge had been demanded in
error by a sequestrator of the property of
a bankrupt rector, and had been paid by
mistake by the trustees of the estate out of
which they had formerly been properly pay-
able after the right to demand them had
ceased, — Held, that the destination of the
money could not be assumed beyond the
sequestrator, and that the sequestrator was
liable to refund such moneys, he being some-
thing more than an agent of the trustee in
bankruptcy of the bankrupt rector. Baylis v.
London (Bishop), 81 L. J. Ch. 586: [1912]
2 Ch. 318; 19 Manson. 219; 56 S. J. 614—
Neville. J. Affirmed, .57 S. J. 96 ; 29 T. L. E.
59— C.A.
Money Had and Received — Tolls — Payment
under Threat of Distress — Right to Recover,]
— If a person, with knowledge of the facts,
pays money which he is not in law bound to
pay, not in order to avoid litigation, but under
the threat of and in order to avoid a distress
on and seizure of his goods, and in circum-
stances which imply that he is not paying
voluntarily in order to close the transaction,
he can recover it back again as money had and
received to his use. The fact that he paid
under protest is evidence only that he did not
intend to close the transaction. Maskell v.
Horner, 84 L. J. K.B. 1752; [1915] 3 K.B.
106; 113 L. T. 126; 79 J. P. 406; 13 L. G. E.
808; 59 S. J. 429; 31 T. L. E. 332— C.A.
The plaintiff, a produce dealer, from time to
time paid tolls to the defendant, the lessee
of a market, which it was subsequently held
the latter had no right to demand. The
plaintiff had refused to pay on the first de-
mand, but under a threat to distrain his goods
had eventually paid ; and all the subsequent
payments were made under protest. In an
action by him to recover the sums paid for
tolls, — Held, that he was entitled to recover
the sums so paid by him to the defendant
during the last six years immediately preced-
ing the action as money had and received to
his use, and earlier payments being barred by
the Statute of Limitations. 76.
Decision of Eowlatt, J. (30 T. L. R. 343),
reversed. lb.
Holding out — Estoppel.] —The appellant
had been in the habit of personally ordering
goods from the respondents, and he had an
employee named Cox who had no authority to
order goods. The appellant dismissed Cox, "and
the latter subsequently obtained goods from the
respondents on the representation that the
appellant had sent him for them. When
the appellant was paying the respondents'
account he did not notice the items for these
articles, and he paid the account in full. A
second account containing charges for further
articles fraudulently obtained by Cox in the
name of the appellant was looked over by the
appellant's clerk, but was not properly checked,
and the appellant paid it in full. The appel-
lant claimed to recover back from the respon-
dents the sum overpaid : — Held, that the
appellant was entitled to recover the sum, as
he had not held out Cox as his agent and there
was no estoppel. Bailey & Whites, Lim. v.
House, 31 T. L. R. 583— D.
Deed of Separation — Marriage Unlawful —
Belief in its Lawfulness— Validity.]— If the
parties to an agreement make a mutual mis-
take of fact which is material to the existence
of an agreement the agreement is void. The
plaintiff and the defendant, believing (as was
not the fact) that they were lawfully married,
entered into a deed of separation : — Held, that
the deed of separation was void. Galloicay v.
Galloway, 30 T. L. E. 531— D.
MONEY COUNTS.
Payment under Compulsion of Foreign Law
— Right to Recover.] — Money paid under the
compulsion of legal proceedings instituted in a
foreign country cannot be recovered in an
action in an English Court, being money paid
under compulsion of law. Clydesdale Bank v.
Schroder .f Co., 82 L. J. K.B. 750; [1913]
2 K.B. 1; 106 L. T. 955; 17 Com. Cas. 210;
56 S. J. 519— Bray, J.
Hire-Purchase — Impressment of Article by
War Office — Compensation — Division between
Owner and Bailee.]— The plaintiffs delivered
to the defendants a motor chassis under a
hire-purchase agreement, by which the pro-
perty in the chassis was to remain in the
plaintiffs until payment had been made in
full. Payment was to be made in three instal-
ments, subject to the defendants' right to pay
in full at any time. The defendants fitted
1023
]\IONEY COUNTS— MONEY-LENDER.
1024
the chassis with a body, and, after two instal-
ments had been paid, the War Office impressed
the lorry and paid compensation to the defen-
dants. In an action by the plaintiffs against
the defendants to recover a proportion of the
compensation, — Held, that the plaintiffs were
entitled to an amount equal to that of the last
instalment, together with interest. British
Berna Motor Lorries, Lim. v. Inter-Transport
Co., 31 T. L. K. 200— Rowlatt, J.
MONEY-LENDER.
I. Application of Money-lendees Act,
1023.
II. Registration of Money-lenders, 1023.
III. Re-opening and Avoidance of Trans-
actions, 1027.
IV. Sending Circular to Infant. See
Gaming and Wagering.
I. APPLICATION OF MONEY-LENDERS
ACT.
See also Vol. IX. 2463.
Business of Money-lending — Loan on Bill
of Sale — Pawnbroker.] — A pawnbroker who
on an isolated occasion lends money on a bill
of sale is not, for that reason merely, a money-
lender within the meaning of the Money-
lenders Act, 1900. Newman v. Oughton,
80 L. J. K.B. 673; [1911] 1 K.B. 792;
104 L. T. 211: 55 S. J. 272; 27 T. L. R. 254
— D.
Section 6 of the Money-lenders Act, 1900,
excludes pawnbrokers from the operation of
that Act as long as thej' only carry on the
business of pawnbrokers within the meaning
of the Pawnbrokers Acts. lb.
II. REGISTRATION OF MONEY-
LENDERS.
See also Vol. IX. 2465.
"Usual trade name" — Carrying on Busi-
ness in More than One Name.] — A bill of sale
taken in the registered name of a money-
lender is not void although the name was
improperly registered. So long as the name
remains on the register, contracts in that
name are not to be held void or the money-
lender's action in making such contracts
punishable by fine or imprisonment. White-
man V. Sadler, 79 L. J. K.B. 1050; [1910]
A.C. 514; 103 L. T. 296; 17 Manson, 296;
54 S. J. 718; 26 T. L. R. 655— H.L. (E.)
It is a breach of the Money-lenders Act,
1900, for a money-lender to carry on business
alone under one name and in partnership with
another under a different name. lb.
A name assumed for the first time for the
purpose of registration cannot be described as
the money-lender's usual trade name. (Lord
Mersey dissenting on this point.) 76.
Members of Firm Incorrectly Registered —
Mortgage — Assignment — Bona Fide Holder
for Value without Notice — Invalidity of
Security.] — A bona fide holder for value with-
out notice of a security given to a money-
lender which is invalidated by reason of non-
compliance with the provisions of section 2 of
the Money-lenders Act, 1900, is in no better
position than the original holder of the security.
Robinson, In re; Clarkson v. Robinson (No. 1),
80 L. J. Ch. 309; [1911] 1 Ch. 230; 103 L. T.
857 ; 27 T. L. R. 182— C.A.
A firm was registered under the Money-
lenders Act, 1900, in the firm name, and was
stated to consist of two partners, C. A. B. and
J. C. B. C. A. B. was in fact not a partner,
but merely a nominee of G. C. B., who sup-
plied all the capital of the firm, which con-
sisted of himself and J. C. B. : — Held, that
securities given to the firm in respect of
money-lending transactions were void, as the
money-lenders were not properly registered,
and that an assignee of the securities for
value without notice was in no better position
than the original lenders, and could obtain
no benefit from the securities. lb.
Carrying on Business in other Name — Im-
material Variance.] — A money-lender regis-
tered her name under the Money-lenders Act,
1900, as the W. Loan and Discount Office.
In a promissory note which she took from a
borrower in respect of money lent by her she
was described as of the W. Loan and Discount
Co. : — Held, that the substitution of the word
" company " for the word " office " did not
constitute a carrying on by her of the money-
lending business in a name other than her
registered name within the meaning of sec-
tion 2, sub-section 1 (b) of the Money-lenders
Act. Peizer v. Lefkowitz, 81 L. J. K.B. 718;
[1912] 2 K.B. 235 ; 106 L. T. 776 ; 28 T. L. R.
334— C.A.
S. P. was registered as a money-lender
under the name of the " Wentworth Loan and
Discount Office, of 27, Stafford Houses, Went-
worth Street, E." She lent money to the
defendants on promissory notes, which were
upon printed forms and which described her
as S. P., of the " Wentworth Loan and Dis-
count Company, of Stafford Houses, Wentworth
Street, E." In an action by the plaintiff on
the promissory notes, the defendants contended
that as the word " company " appeared on the
notes instead of the word " office," the plain-
tiff was not trading in her registered name
within section 2 of the Money-lenders Act,
1900. The County Court Judge gave judg-
ment for the plaintiff on the ground that the
variation in the description of the plaintiff
had not deceived the defendants. The defen-
dants appealed : — Held, dismissing the appeal,
that it was open to the County Court Judge to
say that the distinction was so small as not to
amount to a difference in the description, and,
further, that he was entitled to say that he
was not satisfied that the single transaction
w'as sufficient to force him to the conclusion
that the plaintiff was carrying on business in
any other than her registered name. Went-
icorth Loan Co. v. Lefkowitz, 105 L. T. 585;
56 S. J. 54 ; 28 T. L. R. 31— D.
1025
MOXEY-LEXDEPt.
1026
Carrying on Business in more ttian one
Registered Name.] — The prohibition from
carrying on the business of a money-lender
" in more than one name " in sub-section 2
of section 2 of the Money-lenders Act, 1900,
applies whether all the names or either of
them are registered or unregistered. White-
man V. Director of Public Prosecutions,
80 L. J. K.B. 681: [1911] 1 K.B. 824;
104 L. T. 102; 75 J. P. 136; 27 T. L. R. 180
— D.
Loan by Unregistered Money-lender in
Course of his Business — Mortgage — Failure
of one Defendant to Plead Act — Illegal Trans-
action— Unenforceable Deed/ — The plaintiff
lent money to trustees upon the security of a
mortgage of their trust property. The Court,
having come to the conclusion on the evidence
that the plaintiff was a money-lender who had
lent the money at a time when he was not
registered as a money-lender under the Money-
lenders Act, 1900, Jteld the mortgage to be
void, and refused to enforce it even against
one of the defendants, who had failed to
plead the Act by wav of defence. Scott v.
Brown <f- Co. (61 L." J. Q.B. 738; [1892]
2 Q.B. 724) applied. Robinso7i's Settlement,
In re; Gant v. Hobbs. 81 L. J. Ch. 393;
[1912] 1 Ch. 717 : 106 L. T. 443; 28 T. L. E.
298— C. A.
Action for Debt — Final Judgment in
Default of Defence — Arrangement for Pay-
ment of Debt by Instalments — Order Staying
Proceedings — Debtor made Bankrupt — Proof
Based on Arrangement — Agreement with
Respect to Advance and Repayment of Money
— Unlawful Transaction,] — A solicitor, an un-
registered money-lender, being the holder of
certain prouiissory notes given to him by the
debtor in respect of a loan which was a money-
lending transaction, brought an action on the
notes against the debtor, and obtained final
judgment under Order XTV. in default of
defence. An arrangement was thereupon come
to between the parties under which the debt
was to carrj' interest at 9 per cent, reducible
to 7J per cent., and the debtor agreed to pay
the debt by instalments ; and an order was
subsequently made staying all further pro-
ceedings against the debtor on the terms of
the arrangement. The debtor having become
bankrupt, the creditor tendered a proof in
the bankruptcy based on the arrangement : —
Held, that, notwithstanding that the arrange-
ment was not executed before the advance, it
was an agreement entered into by a money-
lender in the course of his business as a
money-lender with respect to the advance and
repayment of money within the meaning of
section 2. sub-section 1 (c) of the Money-
lenders Act, 1900. and that the original con-
tract with the unregistered money-lender was
not only void, but unlawful, and that there-
fore neither the judgment nor the subsequent
arrangement prevented the Court of Bank-
ruptcy from going behind the transaction, on
the objection of the trustee in l)ankniptcy,
and rejecting the proof. f'nmpbeU. In re: Seal.
er parte. 81 L. J. K.B. 154; [1911] 2 K.B.
992; 105 L. T. 529; 19 Hanson, 1— C.A.
— — Onus — Volume of Business to be Con-
sidered.]— Where in an action for money lent
the defendant raises the defence that the
plaintiff is an unregistered money-lender, the
onus of proof that the plaintiff is a money-
lender within the meaning of section 6 of the
Money-lenders Act, 1900, lies in the first
instance on the defendant. In considering
whether the defendant has discharged that onus
the tribunal must take into consideration the
total volume of business of money-lending
carried on by the plaintiff, including the
exceptions mentioned in section 6. Fagot v.
Fine, 105 L. T. 583; 56 S. J. 35— D.
A person carried on business as a jeweller
and lent money to customers who came into
contact with him in connection with his
jewellery business : — Held, that such loans
were not made in the course and for the pur-
poses of a business not having for its primary
object the lending of money within the mean-
ing of section 6 (d) of the Money-lenders
Act, 1900. lb.
Security taken in other than Registered
Name.] — R., the beneficiary under a will, in
consideration of 400/. paid to him by one
Levine, a money-lender, who carried on busi-
ness under the registered name of Leslie,
transferred to Levine 800/., part of the share
to which he was entitled under the will. The
deed purported to be an out-and-out transfer
of the 800Z. to Levine in his individual name,
and contained no covenant by R. to pay the
800/. or any sum of money or interest : —
Held, that, notwithstanding the form of the
deed, it was a security for money given to
Levine in the course of his business as a
money-lender, and, as it had not been taken
by him in his registered name of Leslie, it
was void under section 2, sub-section 1 (c) of
the Money-lenders Act, 1900. Robinson, In
re; Clarkson v. Robinson (No. 2), 104 L. T.
712; 27 T. L. E. 441— C.A.
Carrying on Business at Registered
Address — Excessive Interest — Harsh and Un-
conscionable Transaction.] — Section 2, sub-
section 1 (c) of the Money-lenders Act, 1900.
which provides that a money-lender, as defined
by the Act, shall not take any security for
money in the course of his business as a
money-lender otherwise than in his registered
name, does not prohibit him from taking a
security in which his names does not appear
at all, but prohibits him from taking it in a
name other tlian his registered name. Shaffer
V. Sheffield, 83 L. J. K.B. 817: [1914]
2 K.B. 1: 110 L. T. 1023: 58 S. J. 363;
30 T. L. R. 276— Channell, J.
The plaintiff carried on business as a
registered money-lender at Manchester, and
prior to the loan the subject-matter of this
action had had several money-lending trans-
actions with the defendant Sheffield. Sheffield
sent a letter to the plaintiff's registered address
at Manchester asking him to come to London
for the pnrpose of granting a loan on the
security of certain furniture belonging to the
defendant Moore, who knew of the suggested
visit and its object. The plaintiff accordingly
interviewed the defendant at the St. Pancras
Hotel. London, and there lent Sheffield 150/.,
.33
1027
MONEY-LENDEE.
1028
taking as security a bill of exchange for 175/.,
payable one month after date, drawn by
Shefi&eld upon, and accepted by, Moore as
surety, and indorsed in blank to the plaintiff :
— Held, first, that the plaintiff had not taken
the security '" otherwise than in his registered
name "; secondly, that he had not carried on
business otherwise than at his registered
address; but thirdly, that interest would only
be allowed at the rate previously charged by
the plaintiff — namely, 5/. on a loan of 50/. for
a month. lb.
Judgment in Registered Name against
Debtor — Bankruptcy Petition — Change of
Registered Name — Agreement for Payment of
Debt — Agreement Entered into by Money-
lender under First Registered Name.] — The
plaintiff, a money-lender, obtained judgment
in his registered name against C, his debtor,
and, as the judgment was not satisfied, he
presented a bankruptcy petition, in the same
registered name, against C. When the petition
was about to be heard, and in consideration of
it being withdrawn, an arrangement was
entered into between the plaintiff, in the
same registered name as that in which he had
obtained judgment, and the defendant H. by
which H. paid a portion of the debt, and
agreed to redeem certain shares for 50/.
within fourteen days. At the time this agree-
ment was entered into, but after he had
obtained judgment against C, the plaintiff
had changed his registered name. H. not
having paid the 50/., the plaintiff sued him
to recover same : — Held, first, that the
agreement was one " with respect to the
advance and repayment of money " within
section 2, sub-section 1 (c) of the Money-
lenders Act, 1900; secondly, that, as it was
ancillary to the bankruptcy petition, it was
rightly entered into on the part of the plain-
tiff in the registered name under which he
had obtained judgment and presented the
bankruptcy petition ; and thirdly, that H.
was liable. Blair v. Holcombe. 28 T. L. E.
198— Scrutton. J.
III. RE-OPEXING AND AVOIDANCE OF
TEAXSACTIONS.
See also Vol. IX. 2470.
"Harsh and unconscionable" — Excessive
Interest.] — The Court being of opinion that
the interest charged by the money-lender for
a loan was, in view of the borrower's financial
position, excessive, re-opened the transaction
of loan and reduced the rate of interest.
Stirling v. Musgrave, 29 T. L. R. 333—
Bankes, J.
Where on a loan by a money-lender the rate
of interest charged is grossly excessive as com-
pared with the risk, having regard to the facts
as to the financial position of the borrower
known to the lender, or which would have been
known to him if he had made proper enquiries,
the Court may re-open the transaction as being
harsh and unconscionable within section 1 of
the Money-lenders Act, 1900, although the
borrower is competent, and there is no element
of fraud or other unfairness in the transaction.
Thomas v. Ashbrook, [1913] 2 Ir. E. 416—
K.B. D.
Interest charged at the rate of 80 per cent,
per annum where the Court was of opinion that
the reasonable rate, having regard to the risk
and all the circumstances, should not have
exceeded 25 per cent. : — Held, sufficient of
itself to entitle the borrower to have the
transaction re-opened. lb.
The defendant borrowed from the plaintiff,
who was a money-lender, the sum of 1,000/.,
and gave a promissory note for 1,600/., which
was payable in instalments spread over twelve
months, the first payment to be 150/. at the
end of three months, and there was the usual
default clause. The defendant made default
in paying the first instalment, and the plaintiff
brought an action to recover the 1,600/. The
defendant gave evidence that the plaintiff
agreed that the interest should be 60 per cent,
per annum, but did not explain the default
clause and that it was agreed that he should
be at liberty to pay off the whole amount at
any time and only pay interest at 60 per cent.
After action the defendant paid the principal
and offered to pay 60 per cent, interest : — Held.
that the note did not contain all the terms of
the bargain, that the defendant did not under-
stand the effect of the default clause, that the
transaction was harsh and unconscionable, and
that the plaintiff should have judgment for
60 per cent, on 1,000/. up to the date when the
offer was made. Stirling v. Rose, 30 T. L. E.
67 — Avory, J.
The Court, being of opinion that the interest
charged was, in the circumstances, excessive,
reduced it to 50 per cent. Fortescue v. Brad-
shau), 27 T. L. E. 251— Pickford, J.
The Court, being of opinion that the rate
of interest charged was, in the circumstances,
excessive, reduced it to 30 per cent. Wheatley
V. Part, 27 T. L. E. 303— Pickford, J.
In cases under the Money-lenders Act,
1900, where the Court is asked to re-open a
transaction on the ground that the interest
charged is excessive, all the circumstances,
such as time and risk, and, further, whether
the interest was deducted in cash or still
remained in the region of speculation, have
to be taken into consideration. Merely to say
that the percentage of interest is too high
affords no assistance to the Court in deter-
mining the question. Whether the equitable
rule that in money-lending transactions with
an expectant heir the onus is on the money-
lender to prove that the transaction is fair,
and that if it is not fair only 5 per cent,
interest is allowed, applies where the ex-
pectant heir is of full age, qucere. King v.
Hay Currie, 28 T. L. R. 10— Scrutton, J.
Where loan transactions between a borrower
and a money-lender, consisting of promissory
notes, under which principal and interest are
repayable by instalments and containing a
default clause, are so involved that the
borrower cannot understand the rate of interest
charged, which is in fact excessive, the Court
will re-open the transactions and grant the
borrower relief on the ground that the deal-
ings are " harsh and unconscionable " within
the Monev-lenders Act, 1900, s. 1, sub-s. 1.
Halsey v.' Wolfe, 84 L. J. Ch. 809; [1915]
2 Ch. 330 ; 113 L. T. 720— Joyce, J.
1029
.MUXEY-LENDEE— MORATOEIUM.
1030
Request for Terms — Sending Money —
Avoidance of Negotiation.] — When a person
who has recently refused a loan from a money-
lender writes to him shortly afterwards in
order to ascertain his terms, and the money-
lender induces a transaction by sending him
money and thereby avoiding the negotiation
of terms, the transaction may be re-opened
under section 1 of the Money-lenders Act, 1900.
Letcis V. Mills, 30 T. L. R. 438— Rowlatt, J.
Nature of Risk.] — The plaintiff, a regis-
tered money-lender, sued the defendant for
money lent. The defendant contended that
under the Money-lenders Act, 1900, s. 1, the
transaction ought to be re-opened on the ground
that, in view of the high rate of interest
charged, it was harsh and unconscionable.
The plaintiff submitted that excessive interest
was not, in itself, sufficient ground for the
re-opening of the transaction : — Held, in con-
sidering whether to re-open a transaction under
section 1 the Court must have regard to all
the facts in the case — for instance, the financial
embarrassment of the borrower at the time of
the making of the loan. Gla-ikie v. Griffin,
111 L. T. 712— Sankey, J.
Secured Advance — Nature of Risk — Sum
Adjudged to be "fairly due.'"] — Where an
advance granted to a borrower by a registered
money-lender was on the security of certain
real estate, interest at the rate of 50 per cent.
— or, in one view, 40 per cent. — being charged
for the same, it was held that as a secured
advance stood in a different position from an
unsecured advance, the interest was so ex-
cessive as to render the transaction " harsh
and unconscionable " within the meaning of
section 1, sub-section 1, of the Money-lenders
Act, 1900; that the transaction ought, there-
fore, to be re-opened; and that, having regard
to all the circumstances, it was reasonable that
the money-lender should receive interest at the
rate of 20 per cent, as '" fairly due " within
the meaning of the sub-section. Salaman v.
Blair: Blair v. Johnstone. Ill L. T. 426— C. A.
Questions of Law for Judge.] — Where
proceedings are taken in any Court by a money-
lender for the recovery of money lent, or the
enforcement of any agreement or security in
respect of money lent, the questions under
section 1 of the Money-lenders Act, 1900,
whether the transaction is harsh and uncon-
scionable, and whether the interest charged is
excessive, are questions of law for the Judge,
and ought not to be left to a jury. The jury
may, however, be asked to find any facts which
the Judge may think necessary for his decision
of the questions of law. Abrahams v.
Dimmock, 84 L. J. K.B. 802: [1915] 1 K.B.
663; 112 L. T. 386; 59 S. J. 188; 31 T. L. R.
87— C. A.
Decision of the Divisional Court (83 L. J.
K.B. 1033; [1914] 2 K.B. 372) affirmed. lb.
Expectant Heir — Excessive Interest.] —
The plaintiff, who was a money-lender,
advanced 1,000/. to the defendant on July 29.
1914, and received from him a promissory note
for 1,600/. payable in four monthly instalments
of 400/. each, the first instalment to be paid
on October 1, 1914. There was a default
clause to the effect that if any instalment was
unpaid the whole amount was to become pay-
able and interest at 60 per cent, was to be
paid from the date of default. Default was
made in the payment of the first instalment.
The defendant had an income of about 2,000/.
a year, and was entitled to the reversion of
certain property worth about 4,000/. a year.
The defendant had had previous transactions
with the plaintiff and had settled them volun-
tarily. In an action on the promissory note, —
Held, that in the circumstances the defendant
was not entitled to relief under the equitable
doctrine as to catching bargains made with
expectant heirs and that the past transactions
ought not to be opened up, but that as the
terms on which the money was lent in the
present case were out of all reason the
transaction must be opened up under the
Money-lenders Act, 1900, s. 1, and the plaintiff
would have judgment for the principal with
interest at 30 per cent. Wolfe v. Lowther,
31 T. L. R. 354— Rowlatt, J. '
See also Shaffer v. Sheffield, ante, col. 1026.
MONEY PAID INTO
COURT.
See COUNTY COURT; PRACTICE.
MORATORIUM.
Banker and Customer — Dishonour of Cheque
— Breach of Contract — Libel.] — The plaintiff,
who was a newsagent, had an account with
the defendant bank, and on August 5, 1914,
she drew a cheque for 4/. 5s. in favour of the
company from whom she was in the habit of
buying newspapers. On August 6 a mora-
torium proclamation was issued, providing that
all payments of not less than 5/. due and
payable before August 6 or any day before
September 4 in respect of any cheque drawn
before August 4 " or in respect of any contract
made before that time " should be deemed due
and payable one month after the original due
date or on September 4. The cheque w'as
presented on August 10 and returned with the
words " Refer to drawer " upon it. On
August 10 the plaintiff had 6/. 15.9. 5d. to her
credit on the pre-moratorium account and
3/. 95. Sd. on the post-moratorium account. In
an action by the plaintiff against the defen-
dants for breach of contract and libel, — Held.
that the defendants were protected by the
moratorium, as the case was one of a payment
in respect of a contract made before August 4.
and that in the circumstances the words
" Refer to drawer " were not capable of a
libellous meaning, and therefore the plaintiff
was not entitled to recover. Flach v. London
1031
MOEATOEIUM.
1032
and South-Western Bank. 31 T. L. E. 334—
Scrutton, J.
Deposits — Agreed Interest — Moratorium
Rate — Meaning of "if not otherwise carrying
interest."] — In July, 1914, the plaintiffs
deposited with the defendant bank two sums,
repayable on August 14 with interest at 3^ and
3J per cent, per annum respectively. On
August 6 a Eoyal proclamation set up a
moratorium and provided that payments post-
poned thereunder should, " if not otherwise
carrying interest, and if specific demand were
made for payment, and payment was refused,
carry interest until payment at the Bank of
England rate current on August 7, 1914 " —
namely, 6 per cent, per annum. On August 14
repaj'ment was demanded, but it was not made
till October 31. The deposits fell within the
class of payments to which the proclamation
applied : — Held, that between August 14 and
October 31 the plaintiffs were only entitled to
interest at the agreed rates and not at 6 per
cent., as at the date of the proclamation the
deposits were carrying interest otherwise than
by virtue of the proclamation. Coats. Lim. v.
Disconto Gesellschaft, 31 T. L. E. 446—
Bailhache. J.
Overdraft — Moneys Paid in by Customer
— Appropriation in Discharge of Overdraft —
Dishonour of Customer's Cheque — Liability of
Banker." — The defendants on February 11,
1914, agreed to allow the plaintiff, who was a
customer of the bank, an overdraft for a
period of six months. On August 6, 1914,
when the plaintiff's account was overdrawn, a
moratorium was i^rocl aimed. On August 28
the plaintiff, without making any express
appropriation, paid a sum of money into his
account, and the defendants applied a part of
it in discharge of the overdraft. On the
following day the plaintiff drew a cheque upon
the bank, but in consequence of the discharge
of the overdraft his balance was not sufficient
to meet it. The cheque was dishonoured, and
returned to the holder marked " E.D." In an
action brought by the plaintiff against the
bank for damages for breach of contract and
for lihel— Held, that the effect of the
moratorium was to postpone the date of pay-
ment of the overdraft for a month, that the
defendants were not entitled under the circum-
stances to refuse payment of the plaintiff's
cheque, and that the plaintiff was entitled to
recover. Allen v. London County and West-
minster Bank. 84 L. J. K.B. 1286; 112 L. T.
989; .31 T. L. E. 210— Lord Coleridge. J.
Contract — Date of Making — Applicability of
Moratorium." — The moratorium proclaimed
under the Postponement of Payments Act,
1914, does not extend to contracts made
after August 4, 1914. Softlaw v. Morgan,
31 T. L. E. .54— C. A.
Sale of Goods — C.i.f. Contract — Payment
against Shipping Documents — Tender of
Documents — Refusal to Pay." — The defen-
dant sold to the plaintiff opium, shipment
during July, 1914. payment cash against
documents upon arrival of steamer. The
steamer arrived in London on August 14,
after the outbreak of the war with Germany
and the proclamation of August 6, 1914, post-
poning paj'ments due and payable {inter alia)
before September 4, 1914. The defendant
offered to tender the shipping documents on
payment ; the plaintiff claimed delivery of the
goods without present payment, contending
that under the above proclamation he was
entitled to postpone payment : — Held, that the
proclamation did not apply to a c.i.f. contract,
and that the plaintiff could only get the
documents, if tendered, on payment under the
contract. Happe v. Manasseh, 84 L. J. K.B.
1895; 113 L. T. 177— Sankey, J. Affirmed.
32 T. L. E. 112— C.A.
Payment of Cash in London for Roubles in
Russia — Effect of Proclamations.] — The plain-
tiff bank and the defendant bank entered into a
contract by which in exchange for the payment
of sovereigns in London by the defendant bank
on August 31, 1914, the plaintiff bank were to
pay roubles in Petrograd at the exchange rate
of 95.25. On August 6, 1914, a moratorium
proclamation was issued under the Postpone-
ment of Payments Act, 1914, in regard to
" payments . . . which will become due and
payable on any day before the beginning of
the 4th day of September, 1914, ... in
respect of any contract made before that time,"
and it postponed payment until September 4,
or until a month after the day on which the
payment became due, whichever was the later
date. The proclamation also provided for
interest. Just before August 31 the defendant
bank claimed that under the proclamation they
had a right to postpone payment, but the
plaintiff bank did not agree to a postponement.
Further extensions of the moratorium were
made by a second and a third proclamation,
but the third differed from the other two in
that it provided that the moratorium of a
month could only be obtained if within three
days after the date to which payment had been
already postponed interest was paid up to that
date, and within a day or two after the second
postponed date the defendant bank paid the
sovereigns, and the roubles were handed over.
The plaintiff bank then brought an action
against the defendant bank to recover interest
either under the proclamations or as damages
or under the Civil Procedure Act, 1833 : —
Held, that the proclamations did not apply
to the contract, as they must be construed as
being limited to payments which automatically
became due without the condition precedent of
a tender by the payee, and that the defendant
bank broke their contract by not paying on
the due date, but that as the rouble was worth
less in sovereigns on the date of the actual
performance of the contract than on the con-
tract date, the plaintiff bank were only entitled
to recover a nominal sum. Credito Italiano
V. Swiss Bank-Verein, 31 T. L. E. 554—
Scrutton, J.
Goods Sold and Delivered — Several Consign-
ments of Goods — Aggregate Prices Exceeding
Five Pounds — Separate Prices not Exceeding
Five Pounds — Setting Aside Writ.] — Under
the powers conferred by the Postponement of
Payments Act, 1914. a proclamation was made
on August 6, 1914, which provided that all
1033
MORATOEIUM— MORTGAGE .
1034
payments which had become due and payable
before a certain date in respect of contract
should be deemed to be due and payable on a
specified later date ; but that the proclamation
should not apply to " any payinent in respect
of a lial)ility which when incurred did not
exceed five pounds in amount." Between the
above dates the plaintiffs issued and served
upon the defendants a writ specially indorsed
with a claim for a sum of upwards of 61L,
made up of the prices of thirty-four parcels of
goods alleged to have been sold and delivered
under separate contracts of sale, all these
prices having become due before the earlier
of the above dates, and twenty-eight of them
being individually though not in the aggregate
below 5/., while the remaining six were
individually above that amount. The defen-
dants took out a summons to set aside the writ
on the ground that the plaintiffs' claim was
barred by the moratorium created by the
proclamation : — Held, that the defendants'
liability for each of the prices which was
below 51. was a liability which came within
the words of the above exemption, and that
the plaintiffs' claim so far as it consisted of
these prices was not barred, and therefore that
the writ could not be set aside, notwithstanding
that the total claims or the other individual
prices were alcove 5/. Auster, Lim. v. London
Motor Coach Works, 84 L. J. K.B. 580;
112 L. T. 99: 59 S. J. 24; 31 T. L. E. 26
— C.A.
Promissory Note — Issue of Writ — Subse-
quent Suspension of Remedy — Termination of
Moratorium — Right to Judgment.) — When,
after money has become due, a writ has been
issued in an action to recover the amount, the
fact that after the issue of the writ a statutory
moratorium temporarily suspended the plain-
tiff's remedy is not a defence, if before the
trial of the action the temporary moratorium
has ceased to applv to the plaintiff's claim.
Glaskie v. Petry, 59 S. J. 92: 31 T. L. E. 40
— Scrutton, J.
Rent — Distress — Removal of Goods.] ^ —
Though a landlord who had levied a distress
for rent before the date of the proclamation
of a moratorium under the Postponement of
Payments Act, 1914, but who had not sold
the goods before that date, was not entitled
to sell the goods during the currency of the
moratorium, yet he was entitled to remove
the goods from the demised premises for the
purpose of securing his possession of the
goods. Shottlaud v. Cabins. L/(«.. 31 T. L. E.
297— Shearman, J.
Non-payment — Recovery of Possession.]
— By section 1, snb-scrti(in I of tlu; Postpone-
ment of Payments Act, 1914, and a proclama-
tion issued in pursuance thereof, the payment
of any sum due and payable before the date
of the proclaniatiiin in respect of a contract
made before tliat time was postponed to a
specified date : — IlrJd. that rent due and pay-
able before the date of the proclamation could
not be recovered in an action in which the
writ was issued after the proclamation and
before the specified date, liecause not due and
payable at the date of the writ ; and that as
the right, given by the agreement of tenancy,
to re-enter for non-payment of rent was only
a security for the rent, it followed that that
right also did not exist at the date of the writ
and could not be enforced in the action. Durell
V. Gread, 84 1j. J. K.B. 130: 112 L. T. 126;
59 S. J. 7; 31 T. L. K. 22— Scrutton, J.
Shares — Forfeiture for Non-Payment of
Calls — Validity of Resolution — Attempt to
Take Possession of Property.] — A call upon
shares which is payable on a date falling
within the moratorium proclaimed under the
Postponement of Payments Act, 1914, is a debt
within the moratorium, and consequently a
resolution of the directors of the company pur-
porting to forfeit the shares for non-payment
of the call during the currency of the mora-
torium is invalid. Such a resolution is also
an attempt without the leave of the Court to
take possession of property within the meaning
of section 1, sub-section 1 (b) of the Courts
(Emergency Powers) Act, 1914. Burgess v.
O.H.N. Gases, Lim., 59 S. J. 90; 31 T. L. E.
59— Neville, J.
Suspension of Payment.] — A debtor com-
mits an act of bankruptcy by suspending pay-
ment of his debts within the period of the
moratorium proclamations issued under the
Postponement of Payments Act, 1914, and a
debt within those proclamations is payable at
a certain future time, and forms a good peti-
tioning creditor's debt. Sahler, In re, 84 L. J.
K.B. 1275; 112 L. T. 133; [1915] H. B. E.
119; 59 S. J. 106— D.
Writ Issued during Suspensory Period —
Default of Appearance.] — The effect of the
proclamations made under the Postponement
of Payments Act, 1914, was to give a statutory
credit for the period mentioned therein, so
that during such period no action was main-
tainable in respect of a debt coming within
the proclamations. If during the suspensory
period a writ has been issued, the plaintiff is
not entitled to judgment, although no appear-
ance has been entered; and the Court, on the
facts being brought to its notice, will of its
own motion either dismiss the action or remove
the writ from the files of the Court. If judg-
ment has been inadvertently allowed to be
signed, it will be set aside by the Court when
brought to its notice without requiring the
defendant to institute a motion for the purpose.
Gramophone Co. v. King, [1914] 2 Ir. E. 535
—K.B. D.
MORTGAGE.
I. The Contr.\ct, 1035.
II. Particular Mortgages and Incum-
brances, 1039.
III. Interest, 1040.
IV. Assignment and Transfer, 1041.
V. Management and Account, 1041.
1035
MORTGAGE.
1036
YI. Priority of Estates. Debts, and
Incumbranxes, 1043.
YII. Marsh.allin'g, 1046.
VIII. Payment Off, Eeconveyance. and
Deeds, 1047.
IX. Eedemption, 1048.
X. Foreclosure, 1049.
XI. Sale, 1051.
XII. Receiver, 1051.
XIII. Costs. 1052.
I. THE COXTRACT.
See also Vol. IX. 1385, 2477.
Land Held on Trust for Sale — Proceeds —
"Interest in land" — Period of Limitation.] —
An interest in the proceeds of sale of land held
on trust for sale is an " interest in land "
within the meaning of the Eeal Property
Limitation Acts, 1833 and 1874; and the
period of limitation applicable to a claim by a
mortgagee of such an interest is therefore
twelve years. Kirkland v. Peatfield (72 L. J.
K.B. 355: [1903] 1 K.B. 756) and Hazeldme's
Trusts. In re (77 L. J. Ch. 97; [1908] 1 Ch.
34), followed. Fox, In re; Brooks v. Marston,
82 L. J. Ch. 393; [1913] 2 Ch. 75; 108 L. T.
948 — Warrington, J.
Agreement not to Call in Principal on Punc-
tual Performance of Covenants — Breach of
Covenants — Receipt of Interest — Waiyer.' —
A mortgagee agreed with a mortgagor that if
the mortgagor punctually performed the cove-
nants contained in the mortgage deed he would
not call in the mortgage money for five years.
The mortgagor during the first year com-
mitted several breaches of covenant. About
one year and a half after the last of these
breaches, and before the expiration of the five
years, the mortgagee gave notice calling in the
mortgage money, alleging the breaches afore-
said. During this period of a year and a half
the mortgagee had duly received the interest
on the mortgage money on each quarter day as
it accrued due : — Held, that the receipt of
interest was one of the facts receivable in
evidence in determining whether the plaintiff
had waived his right to call in the money
before the expiration of the five years accruing
to him on the commission of the breaches of
covenant bv the mortgagor. Seal v. Gimson,
110 L. T. 583— I>ord Coleridge, J.
Assignment of Equity of Redemption —
Death of Mortgagor — Payment of Interest
Continued by Assignee — Failure to Repay
Principal — Insufficient Security — Mortgagor's
Estate — Claim to Follow Assets — Delay.] —
Where a mortgagor dies after assigning the
equity of redemption, a default is made in
repaying the principal, and the security proves
insufiBcient, the fact that the mortgagee has
continued to receive interest from the assignee
for a number of years, and has delayed enforc-
ing his security, does not debar him from
following the assets of the mortgagor's estate,
such delay not amounting to laches. Blake v.
Gale (55 L. J. Ch. 559; 32 Ch. D. 571),
Ridgicay v. Kewstead (30 L. J. Ch. 889), and
Leahy v. De Moleyns ([1896] 1 Ir. R. 206),
considered and distinguished. Eustace, In re;
Lee V. McMillan, 81 L. J. Ch. 529; [1912]
1 Cb. .561; 106 L. T. 789; 56 S. J. 468—
Swinfen Eady, .7.
Clogging of Equity of Redemption — Deben-
tures— Floating Charge — Licence to Work
Mines — Charter — Monopoly.] — In April, 1892,
the appellant company advanced to the respon-
dents 112,0(X)Z., to be repaid in manner pro-
vided. It was also provided that in the event
of the respondent company issuing debentures
the appellant company should be at liberty to
require debentures to be issued in satisfaction
of the debt ; that in the event of there being
no issue of debentures or of the appellant
company not exercising their option to take
debentures, but of desiring the exclusive
right to work diamondiferous mines in the
respondent company's territory, the appellants
might decline to accept repayment for five
j"ears of the 112,000?., and be entitled to a
grant in perpetuity of such exclusive right or
licence. By a supplemental agreement dated
December 7, 1892, the appellants agreed to
advance a further 100,000L, to be repaid as
provided, to be secured on a contemplated
issue of 250,000/. debentures, which was to
be a floating charge on all the property of the
respondent company, and that the respondents
should grant to the appellants the exclusive
right or licence above mentioned. The deben-
ture trust deed was executed in June, 1894,
and debentures to the value of 212,000/. taken
by the appellants. They were paid off long
before the action was brought : — Held, that
the debenture issue and floating charge were
wholly separate from the licence to work the
mines, and that the latter did not operate as a
clog on the equity of redemption, or as a
monopoly within the meaning of the respon-
dent's charter. De Beers Consolidated Mines
V. British South .ifrica Co., 81 L. J. Ch. 1.37;
[1912] A.C. 52; 105 L. T. 683; 56 S. J. 175;
28 T. L. R. 114— H.L. (E.)
Decision of the Court of Appeal (80 L. J.
Ch. 65; [1910] 2 Ch. 502) reversed. lb.
Stipulation for Collateral Advantage.] —
There is no rule in equity which precludes a
mortgagee from stipulating for any collateral
advantage, provided that such collateral advan-
tage is not either unfair and unconscionable,
in the nature of a penalty clogging the equity
of redemption, or inconsistent with or repug-
nant to the right to redeem. Kreglinger v.
New Patagonia Meat and Cold Storage Co.,
83 L. J. Ch. 79; [1914] A.C. 25; 109 L. T.
802 ; 58 S. J. 97 ; 30 T. L. R. 114— H.L. (E.)
The appellants advanced money to the
respondents upon the security of a floating
charge over all their property present and
future, and agreed not to demand repayment
for a period of five years, but the respondents
were to be at liberty to repay the debt at an
earlier period on giving notice. The agreement
also contained a provision that the borrowers
should not sell any sheepskins to any pur-
chasers other than the lenders for a period of
five years from the date of the agreement
1037
:\10RTGAGE.
1038
so long as the lenders were willing to purchase
the same at an agreed price. The loan was
paid off before the expiration of the five years :
— Held, that the option of purchasing the
sheepskins was not terminated, but continued
for the period of five years. lb.
Noakes <{■ Co. v. Rice (71 L. J. Ch. 139;
[1902] A.C. 24). Bradley v. Carritt (72 L. J.
K.B. 471: [1903] A.C. 253), and Samuel v.
Jarrah Timber and Wood-Paving Corporation
(73 L. J. Ch. .526; [1904] A.C. 323) discussed
and distinguished. lb.
Equal Payments — Validity — Tied Public
House.] — It is now fully established by the
House of Lords that the old rule that a mort-
gage cannot be made irredeemable still pre-
vails and that equity will not permit any
clause or contrivance, being part of the
mortgage transaction or contemporaneous with
it, to prevent or impede redemption. Fair-
clough V. Swan Breioery Co., 81 L. J. P.C.
207; [1912] A.C. 565; 106 L. T. 931;
28 T. L. R. 450-P.C.
The appellant, in consideration of a mort-
gage of licensed premises granted to him by
the respondents, borrowed 500/.. to be repaid
by 208 monthly instalments. The mortgagor
was not to be at liberty to pay off the debt
otherwise than by instalments without the
express consent in writing of the respondents,
and the premises, which were to be a tied
house during the continuance of the security,
were held for a term of years which exceeded
by six weeks only the actual expiration of the
lease. On the failure of the respondents on
one occasion to supply beer in accordance with
their covenant, the appellant assumed to treat
the tie as at an end. and the respondents
brought an action for damages and an
injunction. The appellant counterclaimed to
redeem : — Held, that the mortgage being
obviously meant to be irredeemable, the provi-
sion as to repayment of the debt could not be
enforced, and the appellant was entitled to
redeem. lb.
Sale of — Liability of Purchaser to In-
demnify the Mortgagor against Mortgage
Debt — Contingent Reversionary Interest —
Construction of Purchase Deed.] — The doc-
trine of Waring v. Ward (7 Ves. 332)—
namely, that the purchaser of an equity of
redemption is bound to indemnify the vendor
against all personal liability in respect of the
mortgage debt — is one which bends to the
circumstances- of any particular case, and is
inapplicable where the terms of the purchase
deed are themselves inconsistent with any such
indemnity being intended. Semble, the doc-
trine is not limited to the case where the
purchaser is in possession of the property, but
applies to the purchase of the equity of redemp-
tion in a contingent reversionary interest
before it falls into possession. Per Farwell,
L.J. — The doctrine is based upon an equity
binding on the conscience, and not upon
implied contract. Mill.i v. United Counties
Bank, 81 L. J. Ch. 210; [1912] 1 Ch. 231;
105 L. T. 742 ; 28 T. L. R. 40— C. A.
The plaintiff was the owner of a contingent
reversionary interest subject to a first mort-
gage to the defendants and to a second mort-
gage in favour of a second mortgagee. The
defendants having commenced an action
against the plaintiff and his co-partners, an
agreement was come to which involved the
purchase by the defendants of the plaintiff's
contingent reversionary interest, which was
carried out by an indenture of assignment (to
which the second mortgagee was not a party),
whereby (after certain recitals shewing an
intention by the defendants to protect them-
selves against the second mortgage) the con-
tingent reversionary interest was assigned to
the defendants with an express provision
against the merger of their mortgage by way
of protection against the second mortgage
only, and the defendants thereby expressly
covenanted to indenmify the plaintiff against
succession and other duties, and it was pro-
vided that any moneys to arise from a sale
of the property should be applied in payment
of the amount owing on the defendants' mort-
gage, and the residue so far as it would go
in payment of the amount owing on the second
mortgage, and the balance (if any) should be
paid to the defendants. The second mortgagee
having demanded payment from the plaintiff
under his covenant, the latter brought an
action claiming to be indemnified by the
defendants : — Held, that the terms of the deed
excluded the notion of any larger indemnity
than was there expressed, and that it was not
the intention of the parties that the defendants
should indemnify the plaintiff against his
personal liability in respect of the second
mortgage, and that therefore they were not
liable to do so. lb.
Decision of Eve, J. (80 L. J. Ch. 334;
[1911] 1 Ch. 069), affirmed on the effect of
the deed, but doubted so far as he decided
that the doctrine of Waring v. Ward (supra)
is limited to the case where the purchaser is
in possession of the property. lb.
Proviso for Redemption — Effect of, in
Charging Prior Mortgage Debts on Additional
Property.]— By deed dated April 15, lb72,
A. mortgaged certain lands to B. (a corporate
body) to secure 32,000L By deed dated
October 31, 1872, A. mortgaged the same
lands to B. to secure a further sum of 5,000Z.
The deed contained a proviso for redemption
on payment of the said sums of 32,000/. and
5,000/. By a third deed dated July 9, 1874,
reciting the two prior mortgages, A. mortgaged
the lands therein, together with other lands at
N., to B. to secure a further sum of 6,000/.
The habendum in the last mentioned deed was
" to have and to hold the said lands and here-
ditaments hereinbefore expressed to be firstly
granted " — that is, the lands mortgaged in
1872 — " to B., its successors and assigns, to
the use of B., its successors and assigns for
ever, but subject nevertheless " to the said
recited mortgages, " and also to the proviso for
redemption hereinafter mentioned, and to have
and to hold the said lands and hereditaments
and all other the premises hereinbefore ex-
pressed to be hereby secondly and thirdly
granted "—that is, the additional lands at N.
— " to B., its successors and assigns, to the
use of B., its successors and assigns for ever,"
subject to the rents and covenants in certain fee-
farm grants, " and subject to the proviso for
1039
MOETGAGE.
1040
redemption hereinafter contained ; that is to
say, provided, and it is hereby agreed and
declared that if the said A., his executors,
administrators or assigns, shall on October 4,
1874, pay to B., its successors and assigns,
the said sum of 6,000/. with interest at
the rate of 5/. 10s. per cent, per annum . . .
then the said B., its successors or assigns,
shall at any tinie thereafter upon the request
and at the costs of the said A., his executors,
administrators or assigns and upon payment
also of the said sum of 32,O0OZ. and interest,
so secured as aforesaid by the said indenture
of April 15, 1872, and also of said sum of
5,000/. and interest, so secured as aforesaid
by the said indenture of October 31, 1872,
reconvey the said lands, hereditaments, and
premises, hereinbefore expressed to be granted
and released, unto and to the use of the said A.,
his heirs and assigns, or as he or they shall
direct"; and it contained a proviso that,
notwithstanding anything therein contained,
B. should not be compelled to reconvey the
lands or anv part thereof until the aforesaid
sums of 32,000/. and 5,000/., as well as the
said sum of 6,000/., should be fully paid and
satisfied : — Held, that by the deed of July 9,
1874, all the three mortgage deeds were
charged on the additional lands at N. Mostyn
V. Lancaster (52 li. J. Ch. 848: 23 Ch. D. 583)
applied. Thomson's Estate. In re, [1912]
1 Ir. E. 460— C. A.
" Insurance Effected under the Mortgage
Deed."! — .See Siiuwtt v. Boicden, ante. col.
720.
II. PAKTICULAE MOETGAGE S AND
INCUMBRANCES.
See also Vol. IX. 1438, 2483.
Property Comprised in — Exception of " logs
on the way to the mill."] — A mortgage
granted over the whole assets, real and per-
sonal, and the property of a company now
owned by it, or which may hereafter be
acquired, " excepting logs on the way to the
mill," must be construed to except not only
logs on the way to the mill at the date of the
mortgage, but also all logs on the way to the
mill from time to time, hnperial Paper Mills
of Canada v. Quebec Bank, 83 L. J. P.C. 67;
110 L. T. 91— P.C.
Title of Mortgagor — Tenant in Occupation
of Property Proposed to be Mortgaged — No
Enquiry of Tenant by Proposing Mortgagee —
Mortgagee Bound by Rights of Tenant,] — By
a lease in writing a house was demised to the
defendant for a term of four years at a yearly
rent payable quarterly ; and the defendant
entered under the lease. Soon after the com-
mencement of the term the lessor agreed to
accept, and the defendant paid, a lump sum
in satisfaction of all rent reserved bj" the lease
during the term. The lessor then mortgaged
the premises to the plaintiff. The plaintiff
knew nothing of the payment of rent in
advance by the defendant, and had only seen
the counterpart lease ; but she had made no en-
quiry of the defendant before the mortgage
was completed : — Held, that the plaintiff
was bound by the arrangement made between
the defendant and the lessor, and could not
recover from the defendant any part of
the rent reserved by the lease. Green v.
Rheinberg, 104 L. T. 149— C. A.
Set-off — Lessee and Mortgagee of Reversion
— Action by Mortgagee for Rent — Counter-
claim by Lessee for Damages against Lessor
— Damages for Breach of Covenant in Build-
ing Agreement.] — The rule that an assignee
of a chose in action can set off a claim for
damages against the assignor arising out of
the same transaction has no application as
between a lessee and a mortgagee of the
reversion. Reeves v. Pope, 83 L. J. K.B. 771;
[1914] 2 K.B. 284; 110 L. T. 503; 58 S. J.
248— C. A.
The rule that a purchaser is bound by all
the equities which a tenant in possession can
enforce against the vendor only applies to an
interest of the tenant in the land and does not
therefore enable a lessee to set off against
a mortgagee of the reversion suing for rent
damages which the lessee claims against the
lessor for breach of covenant in a building
agreement. 75.
Mortgage by Sub-demise — Concurrent
Leases — Validity of Second Lease — Legal
Term — Surrender — Not Applicable to Sub-
demises of Leaseholds.] — A second mortgage
by demise of leasehold premises for a term
concurrent with that granted under a prior
mortgage is not a mere equitable charge, but
passes a legal term, which is an incumbrance
for the discharge of which a formal surrender
under seal is necessary. Moore and Hulme's
Contract, In re, 81 L. J. Ch. 503; [1912]
2 Ch. 105 ; 106 L. T. 330; 66 S. J. 89-Joyce,
,T.
The term passed by a second mortgage by
demise does not become a satisfied term
under section 2 of the Satisfied Terms Act,
1845, when the money due under the mortgage
is paid off without formal surrender. lb.
Chattels — Inclusion by Mistake of Chattel
not Owned by Borrower — Sale — Claim by
Owner to Proceeds.] — A company became
surety for a borrower, and he gave the com-
pany a charge on the proceeds of the sale
of a number of pictures, which by mistake
included a Vandyck. The Yandyck belonged
not to the borrower, but to his wife, who did
not know of the charge until after it had been
executed. The pictures, including the Van-
dyck, were sold, and on the following day the
borrower's wife claimed her picture. The
company having gone into liquidation, — Held,
that in the circumstances the liquidator was
not entitled to retain the proceeds of the sale
of the A'andyck. Chaplin. Milne, Grenfell d
Co., In re (No. 2), 31 T. L. R. 279— Astbury,
J.
III. INTEEEST.
See also Vol. IX. 1467. 2486.
Interest in Arrear — Mortgagor Out of the
Jurisdiction — Right of the Mortgagee to Re-
enter.!— Where the interest upon a mortgage
was in arrear and the mortgagor was in
.\merica, upon an application by the first
1041
MOETGAGE.
1042
mortgagees under the Courts (Emergency
Powers) Act, 1914, which was supported by
subsequent mortgagees, the Court gave the
applicants leave to go into possession of the
mortgaged premises. Coward d Co., In re,
59 S. J. 42— Neville, J.
TV. ASSIGNMENT AND TEANSFEE.
See also Vol. IX. 1483. 2489.
Transferee for Value without Notice —
Negligence of Mortgagor — Fraud of Mort-
gagee— Equities as between Mortgagor and
Transferee.] — A. a soliciror in 1697 mortgaged
certain property to P. to secure 600/. In 1905
P. advanced a further sum of Sill, to A., and
a new mortgage was executed for 917/. of the
lands subject to the mortgage of 1897 and
additional lands. This mortgage contained no
reference to the mortgage of 1897, nor was
the deed affecting that mortgage handed over
to A., it being alleged by P. to have been lost.
In 1907 P. transferred the 190-5 mortgage to
himself and H. as joint trustees of a trust fund
by way of sulj-mortgage to secure l,-500/., the
circumstances being such as to constitute P.
and H. transfei-ees for value. The principal
sum of 917/. was then due under the mortgage
of 190.5. and H. had no notice of the mortgage
of 1897. A. acted as P."s solicitor in connec-
tion with the transfer, and approved of the
transfer deed. In 1908 P. transferred the
mortgage of 1897 to a bank, which subse-
quently realised the amount. The sub-
mortgage of 1907 was afterwards transferred
to H. and M.. as the then trustees of the
trust fund, and they instituted the present
proceedings for a sale of the lands comprised
in the mortgage of 1905. alleging that the sum
of 917/. was due under the mortgage. A.
claimed to be entitled to credit in respect of
the moneys realised under the mortgage of
1897 : — Held, that in consequence of A. having
left the mortgage of 1897 outstanding in the
hands of P., it was not open to A. to say that
the whole amount secured by the mortgage of
1905 was not due. Ambrose's Estate. In re,
[1913] 1 Ir. E. .506— Eoss. J. Affirmed.
[1914] 1 Ir. E. 123— C.A.
See also De Lisle v. Union Bank of Scotland .
post, col. 1048.
V. MANAGEMENT AND ACCOUNT.
See aho Vol. IX. 1491. 2493.
Order for Possession — Delivery of Posses-
sion by Mortgagor to Mortgagee — Exercise of
Jurisdiction." — The words "delivery of pos-
session by the mortgagor " in Irish R.S.C.
Order LV. rule 7 [corresponding to Order LY.
rule 5a] are not to be read as merely ancillary
to a sale ordered by the Court. The Court
will in a proper case make an order for the
delivery of possession of the mortgaged
premises by the mortgagor to the mortgagee,
apart from any proceedings for sale. Semble.
such an order will not be made as a matter of
course. Bank of Ireland v. Slatteni. [1911]
1 Ir. E. 38— M.E.
Mortgagor in Possession — Receipt of Rent
—Effect of Judicature Act, 1873, and Con-
veyancing Act, 1881.] — The principles laid
down in Moss v. Gallimore (1 Dougl. 279) and
Rogers v. Humphreys (5 L. J. K.B. 65;
4 Ad. & E. 299)— namely, that the rent pay-
able under a lease bearing date anterior to
a mortgage is only received by the mortgagor
in possession by leave and licence of the
mortgagee ; that the mortgagee is the rever-
sioner expectant on that lease, and if by going
into possession he puts an end to the leave
and licence under which the mortgagor collects
and receives the rents he is entitled to the
rent payable in respect of the mortgaged
premises — have not been overruled or set aside
by section 25, sub-section 5 of the Judicature
Act, 1873, and section 10 of the Conveyancing
and Law of Property Act, 1881. Those two
provisions do not alter the rights of the parties
as they were established at common law : all
those sections do is to create a mode of pro-
cedure. Ind. Coope d Co., In re; Fisher v.
The Company, 80 L. J. Ch. 661 : [1911] 2 Ch.
223: 105 L. T. 356: 55 S. J. 600— Warrington,
J.
Mortgagees' Right to Grant Licence to
Work Minerals — Sale by Instalments.] — In
the course of foreclosure proceedings, but before
any order as to foreclosure had been made,
mortgagees of a country estate containing
deposits of peat valuable for a certain chemical
process asked the Court to sanction a grant
by them to a third party of an exclusive licence
to work the peat for fifty years upon certain
royalties. The mortgage was prior and not
subject to the Conveyancing Act, 1911. The
application was based on the ground that such
a licence was in effect a series of deferred
sales of part of the land and that the Court
could therefore by virtue of section 25, sub-
section 2 of the Conveyancing Act. 1881, in
the exercise of its discretion, authorise such
a transaction : — Held, that the Court had no
power to sanction such a licence as proposed,
and that the application must be refused.
Stamford, Spalding, and Boston Banking Co.
V. Keeble, 82 L. J. Ch. 388; [19131 2 Ch. 96;
109 L. T. 310— Sargant. J.
Qudre, however, whether under section 25
of the Conveyancing Act, 1881. the Court could
not in its discretion direct a sale of minerals
apart from surface, or vice versa. lb.
Power to Grant Lease — Delivery of
Counterpart to Mortgagee — Non-delivery —
Effect against Lessee." — Where a mortgagor
in possession grants a lease, and fails to deliver
a counterpart to the mortgagees, as provided
by the Conveyancing Act, 1881. the failure to
deliver does not invalidate the lease ; and the
same rule applies where the terms of the
mortgage have given the mortgagor an ex-
tended power of leasing, unless a contrary
intention appear in the mortgage deed. Public
Trustee v. Lawrence, 81 L. J. Ch. 436; [1912]
1 Ch. 789; 106 L. T. 791; 56 S. J. 504—
Swinfen Eady. J.
Rentcharge — Mortgagee not in Possession
— Liability for Payment of Rentcharge. "i — A
inortgagce in fee of land is liable for the pay-
ment of a rentcharge issuing out of the land,
notwithstanding that he has never been in
1043
MOETGAGE.
1044
possession. Cundiff v. Fitzsimmons, 80 L. J.
K.B. 422; [1911] 1 K.B. 513; 103 L. T. 811
— D.
VI. PRIORITY OF ESTATES. DEBTS.
AND INCUMBRANCES.
See also Vol. IX. 1535. 2497.
Misrepresentation by Mortgagor — Estoppel.]
— Where a mortgagor makes false representa-
tions as to existing facts, relying on which a
mortgagee lends him money, those who claim
through the mortgagor for value, but with
notice of the representations, are estopped
from denying the truth of the representations,
and must if possible make them good.
Gresham Life Assurance Society v. Crowther,
83 L. J. Ch. 867; [19141 2 Ch. 219— Astbury,
J. Affirmed. 84 L. J. Ch. 312: [1915] 1 Ch.
214; 111 Tj. T. S87: 59 S. J. 103— C. A.
Trust for Sale — Power of Postponement —
" Land " — Registration,]— An incumbrancer
on a share of the proceeds of real estate in
Yorkshire settled upon trust for sale, though
with power to postpone, obtains no priority
over other incumbrancers of such share by
registering his mortgage deed, and the
priorities of such incumbrances rank according
to their respective notices to the trustees. This
is so even though the land is in fact never sold.
Arden v. Arden (54 L. J. Ch. 655; 29 Ch. D.
702) followed. lb.
Conveyance of Portion of Mortgaged Lands
" free from incumbrances " — Right of Indem-
nity — Notice — Indemnifying Lands Mort-
gaged without Notice — Right of Contribution,]
— If the owner of lands A and B. on which
a charge exists, conveys lands A for value,
and gives a covenant that the lands are " free
from incumbrances," the purchaser is entitled
to throw the charge on lands B so long as
lands B remain in the hands of the mortgagor
or of volunteers under him, but the equity
ceases on a conveyance of lands B to a pur-
chaser for value without notice. Ocean
.Accident and Guarantee Corporations. Colluyyi,
[1913] 1 Ir. R. 337— Ross, J.
The owner of lands A and B, subject to an
annuity and a mortgage, conveyed lands A for
value, with a covenant that the lands were free
from incumbrances. He subsequently mort-
gaged lands B to a moi'tgagee without notice
of the conveyance : — Held, that the mortgagee
of lands B was entitled to make lands A con-
tribute rateably with lands B towards the
payment of the superior charges. lb.
Mortgage to Bank to Secure Present and
Future Advances — Subsequent Mortgage by
Mortgagor "as beneficial owner" — Appro-
priation of Payments." — Q. in 1894 mort-
gaged certain lands and a policy of assurance
to a bank to secure all moneys then due or
to become due, with interest. In 1897 he, " as
beneficial owner," mortgaged the lands, but
not the policy, to F. to secure 700/. and in-
terest. F. had notice at the time of the prior
mortgage to the bank. Notice of the mortgage
to F. was given bv F. to the bank on
March 17, 1897. when a sum of 1.963/. was
due by Q. to the bank, for which he had given
them promissory notes payable three months
after date. The bank continued the account
with Q. as one unbroken account, instead of
opening a fresh account. The notes had been
originally given in 1895 and 1896, and were
renewed from time to time down to 1903, and
since remained unpaid. The practice had been
that when the notes became due they were
debited to Q.'s current account, were at once
renewed, and the amount credited to the
account. Subsequent to March 17, 1897, Q.
paid into his current account in the bank
4,000/. in cash. His account with the bank
was closed on June 30, 1904, and then shewed
an overdraft due to the bank of 1,654/., in
addition to the amount due on the outstanding
notes. Q. died in 1908 : — Held, that the rule
in Clayton's Case (1 Mer. 572) was not ex-
cluded by the conduct of the parties, and that
F.'s mortgage had priority as against the
lands to the bank's charge. Chute's Estate,
In re, [1914] 1 Ir. R. 180— Ross, J.
On Q.'s death the bank received the amount
of the policy moneys, and claimed to be
entitled to apply them towards the discharge
of the amount of the overdraft due on June 30,
1904, with interest, leaving the sum of 1,963/.
and interest still charged on the mortgaged
lands : — Held, that F. had the right to compel
the bank to discharge pro tanto the debt due
to them on March 17. 1897, out of the policy
moneys, in exoneration of the lands subject to
F.'s mortgage. lb.
Reconveyance and New Mortgage without
Notice of Intermediate Charge — Constructive
Notice — Fraud — Registration.] — 0. gave a
first mortgage on his property to A., and a
second mortgage on the same property to M.,
and a further third charge to A. A. pressed
0. for payment, and he offered to sell the
property to the appellant W., and she agreed
to purchase it conditionally on being able to
find some one to pay off the money due to A.
The appellant F. agreed to advance sufficient
to pay A. off on the security of a first mortgage
on the property. 0. did not disclose the exist-
ence of the charge in favour of M. The
transaction was carried out by three deeds.
By the first A. reconveyed the property to O.
in fee-simple free from all incumbrances ; by
the second O. conveyed the property to W. in
fee-simple free from all incumbrances ; by the
third W. mortgaged the property to the appel-
lant F. All the deeds, including the mortgage
to M., were duly registered in the Yorkshire
Registry : — Held, that as the three latter deeds
were framed in ignorance on the parts of W.
and F. of the existence of the mortgage to M.,
and consequently no provisions were inserted
to preserve A.'s priority for the benefit of W.
and F., they would be entitled to invoke the
assistance of a Court of equity in rectifying
the deeds on the ground of common mistake ;
and in any case that neither O., nor any one
claiming through him, could take advantage
of his misrepresentations against them ; and
the provisions of the Yorkshire Registry Act,
1884, which gives priority to deeds according
to date of registration, did not operate to assist
M.'s claim to priority, which consequently
failed. Toulmin v. ' Steere (3 Mer. 210)
considered and distinguished. Whiteley v.
1045
MORTGAGE.
1046
Delaney, 83 L. J. Ch. 349; [1914] A.C. 132;
110 L. T. 434; 58 S. J. 218— H.L. (E.)
Judgment of the Court of Appeal (81 L. J.
Ch. 457; [1912] 1 Ch. 735) reversed. Judg-
ment of Parker, J. (80 L. J. Ch. 696; [1911]
2 Ch. 448), restored. Ih.
Expectancy — Bankruptcy and Discharge of
Mortgagor before Falling into Possession of
Expectancy — Effect on Mortgage.] — In 1905 L.
mortgaged to the defendants, the N. society,
his then expectant share in the estate of his
mother as security for an advance. In 1908
he mortgaged to the defendant A. his said
expectant share, subject to the mortgage of
1905, as security for an advance. In 1908 L.
was adjudicated a bankrupt, and in 1910 he
obtained his discharge, neither the N. society
nor A. having proved in the bankruptcy. In
1911 L., by deed as beneficial owner, assigned
to the plaintiffs his said expectant share. In
February, 1914, L.'s mother died intestate,
and his share thereupon came into existence :
— Held, by Warrington, J., and by the Court
of Appeal, that the mortgages of 1905 and
1908 were not mere contracts to assign the
then expectant share of L., but were actual
assignments of that share directly it came
into existence on the death of L.'s mother;
that the rights of the N. society and of A.
were not therefore discharged by their having
failed to prove in the bankruptcy of L. ; and
that the N. society and A. were entitled in
respect of the share in prioritv to the plaintiffs.
Thompson v. Cohen (41 L. j". Q.B. 221; L. E.
7 Q.B. 527), Cole v. Kernot (41 L. J. Q.B.
221; L. E. 7 Q.B. 534n.), and CoUyer v.
Isaacs (51 L. J. Ch. 14; 19 Ch. D. 342)
explained and distinguished. Lind, In re;
Industrials Finance Syndicate v. Lind,
84 L. J. Ch. 884; [1915] 2 Ch. 345; 59 S. J.
6.51— C. A.
Contingent Interests — Advances by Trustee
on Account of Contingent Share — Subsequent
Assignee — Bound by State of Accounts.] — D.
was entitled to a share of residue contingently
on attaining twenty-five. During the contin-
gency H., one of the trustees, made advances
to D., who subsequently executed a mortgage
to A., the money being lent without enquiry :
— Held, that H. was entitled to recoup his
advances out of the share in priority to
A.'s mortgage. Goddard, In re; Hooker v.
Buckley, 57 S. J. 42— C. A.
Negligence — Equitable Charge by Deposit
— Subsequent Legal Mortgage — No Notice to
Equitable Charge — Equitable Charge Paid
off — Deeds Surrendered to Mortgagor — Deeds
Subsequently Pledged.] — Title deeds of lease-
hold property were deposited at a bank as
security. A legal mortgage was subsequently
created, expressly subject to the equitable
charge. No notice of the legal mortgage was
given to the bank, with whom the deeds
remained. The mortgagor sulisequently dis-
charged the prior equitalile chargee with a
cheque received from a solicitor who was the
son of the legal mortgagee and who knew that
part of the proceeds were to be so applied.
The mortgagor without the knowledge of this
solicitor obtained the title deeds from the bank
and deposited them with the defendants as
security without disclosing the legal mort-
gage. In an action by the representatives of
the legal mortgagee to establish priority, —
Held, that there had been no misconduct or
negligence or want of caution for which the
legal mortgagee was directly or indirectly
responsible, and that, though the discharge of
the prior mortgage and the recovery of the
deeds by the mortgagor might have been due
to the failure of the legal mortgagee to give
notice of his incumbrance t-o the prior mort-
gagee, he was not bound to give any such
notice, and this discharge therefore enured for
the benefit of the legal mortgagee, who retained
priority over the subsequent equitable incum-
brance. Grierson v. National Provincial Bank
of England, 82 L. J. Ch. 481 ; [1913] 2 Ch. 18 ;
108 L. T. 632; 57 S. J. 517; 29 T. L. E. 501
— Joyce, J.
Demised Premises — Second Mortgagee —
Right to Receive Rents and Profits —
Receiver — Appointment not Notified to Tenant
— Judgment against Mortgagor — Garnishee
Summons on Tenant for Rent — Claim
to Rent by Second Mortgagee — Pay-
ment into Court by Tenant — Issue between
Execution Creditor and Second Mortgagee.] —
The freeholder of a farm subject to a legal
mortgage and let to a tenant executed a second
mortgage thereon. The second mortgagee
appointed a receiver, and notice of the appoint-
ment was given to the mortgagor, but not to
the tenant. Execution creditors of the mort-
gagor having issued a summons in the County
Court calling upon the tenant to shew cause
why he should not pay to them a sum which
was owing from him to the mortgagor for rent,
the second mortgagee gave notice to the tenant
to pay rent to liim. No notice whatever was
given by the receiver to the tenant. The
tenant paid into Court the sum which was due
from him for rent and obtained an order on
the second mortgagee to appear as claimant
and support his claim as against the execution
creditors : — Held (Vaughan Williams, L.J.,
dissenting), that, as the notice for payment of
rent had been given by the second mortgagee
himself, and not by the receiver, the second
mortgagee was not in possession and was not
entitled to the rent ; and that therefore the
execution creditors were entitled to have the
money in Court paid out to them. Vacuum
Oil Co. V. Ellis, 83 L. J. K.B. 479; [1914]
1 K.B. 693; 110 L. T. 181— C.A.
VII. MARSHALLING.
See also Vol. TX. 1627. 2511.
Successive Charges on Both or One of Two
Funds — Deficiency — Notice.] — B. was entitled
to a first cliarge on two funds, " A " and
" B," appearing on the final schedule of
incumbrances affecting the purcliase money of
lands sold under the Land Purchase Acts.
C. was entitled to a second charge on fund
" B " only. B. subsequently took a further
charge on funds "A" and "B": and after
that L. acquired a charge on fund " A " only.
1047
MOETGAGE.
1048
Each had notice of all the prior charges. It
appeared that if B.'s first charge were paid
rateably out of both funds the residue of fund
" B " would be insufficient to pay C.'s second
charge in full : — Held, that C. was entitled
to marshal B.'s first charge and to have so
much of it paid out of fund " A " as would
leave sufficient of fund " B " to pay his own
second charge in full, notwithstanding the fact
that L.'s puisne charge would be thereby
prejudiced. Archer's Estate, In re, [IQM]
1 Ir. E. 285— VVylie, J.
VIII. PAYMENT OFF, RECONVEYANCE,
AND DEEDS.
See also Vol. IX. 1636, 2513.
Payment off — Reconveyance — Tender — Re-
demption Action — Interest and Costs.] —
Where a mortgagee refused to hand over a
reconveyance on tender of the money due, and
subsequently the mortgagor paid the money
with additional interest and mortgagee's costs
under protest, the mortgagor, in a redemption
action, was held entitled to recover the addi-
tional interest and costs, and the mortgagee
was ordered to pay the costs of the action.
Rourke v. Robinson. 80 L. J. Ch. 295; [1911]
1 Ch. 480; 103 L. T. 895— Warrington, J.
Refusal of Mortgagee to Reconvey —
Appointment of Master to Reconvey.] — Where
a mortgagee refuses, upon the payment off of
the mortgage debt, to reconvey the mortgaged
property, the Court may appoint a Master to
execute the reconveyance on his behalf. Holme
V. Fieldsend, 55 S. J. 552 — Warrington, J.
Tender of Mortgage Debt — Obligation of
Mortgagee to Transfer — Second Mortgage —
Consent of Second Mortgagee — Company —
Debentures.] — A mortgagee is not safe in
transferring to the mortgagor or his nominee
without the consent of puisne incumbrancers,
of whose charges he has notice. Section 15
of the Conveyancing and Law of Property
Act, 1881, and section 12 of the Conveyancing
Act, 1882, have not altered the pre-existing
rule in this respect. Statement of the law in
Fi.slier on Mortgages (6th ed.), § 1978, p. 989,
approved upon this point. Magneta Time Co.,
In re; Molden v. Tlie Company, 84 L. J. Ch.
814— Neville, J.
Application for Lodgment of Title Deeds
by Prior Mortgagee.] — A prior mortgagee
having been served with notice of the order for
sale of the mortgaged lands, the plaintiff — a
puisne mortgagee — applied for an order that
the prior mortgagee sliould lodge the title deeds
in his possession in Court, and that they
should be delivered to the plaintiff's solicitors.
The prior mortgagee was willing to produce
the deeds and let copies be taken pursuant to
section 16 of the Conveyancing Act, 1881. No
steps had been taken under the order for sale.
The Court, having regard to the offer of the
prior mortgagee, declined to make any order.
Armstrong v. Dickson, [1911] 1 Ir. R. 435 —
M.R.
IX. REDEMPTION.
See also Vol. IX. 1663, 2516.
Notice Demanding Payment off — Tender
after Expiration of Notice — Interest in Lieu
of Notice — Interest until Actual Payment —
Keeping Money Idle.] — Where a notice has
been given requiring repayment of mortgage
money, the mortgagor may, at any time,
whether on or after the expiry of the notice,
tender the money with interest to date of
tender. If the time named in the notice has
expired, the mortgagor need not give any
further notice, or pay interest in lieu of notice.
Edmondson v. Copland, 80 L. J. Ch. 532;
[1911] 2 Ch. 301; 105 L. T. 8; 55 S. J. 520;
27 T. L. R. 446— Joyce, J.
If the mortgagor's tender is improperly
refused, in order to avoid payment of interest
thereafter until actual payment the mortgagor
must either pay the money into Court, if there
are any proceedings in which this can be done,
or keep the money ready, and either make no
profit on it, or, if he make a profit — for
example, by obtaining interest on deposit —
account for such profit to the mortgagee.
Bartlett v. Franklin (36 L. J. Ch. 671;
15 W. R. 1077) explained and distinguished.
lb.
Transfer of Mortgage without Notice to
Mortgagor — State of Accounts between Mort-
gagor and Mortgagee — Transfer of Stock to
Mortgagee as Collateral Security — Fraudulent
Pledge of Stock by Mortgagee — Mortgagor's
Right to Redeem on Payment of Amount Due
from Him.]— The plaintiff borrowed i,0O0l.
from his solicitor on a mortgage of a freehold
property, and he also gave his solicitor 3,000i.
debenture stock as collateral security. The
solicitor was to obtain, and in fact obtained,
the money from his bank. The solicitor
fraudulently induced the plaintiff to execute a
memorandum giving the stock to the bank as
collateral security, not for the 4,000L, but for
all advances of the bank to the solicitor. The
bank were unaware of this fraud. The solicitor
subsequently, without the knowledge of the
plaintiff, sub-mortgaged the land to the bank
by way of equitable deposit to secure his own
general indebtedness to the bank, which
greatly exceeded 4,000L The bank gave the
plaintiff no notice at the time of this sub-
mortgage. They subsequently obtained a legal
transfer of the mortgage. They claimed to
retain the debenture stock and also to hold the
mortgage as full security for 4,000Z. against
the solicitor's indebtedness to them : — Held,
that the transferee of a mortgage takes subject
to the state of accounts between the mortgagor
and mortgagee at the date when the mortgagor
receives notice of the transfer, and that the
plaintiff was therefoi'e entitled to redeem the
mortgage on payment of l.OOOL, being 4,000Z.
less the value of the stock transferred to the
bank and retained by them against the
solicitor's indebtedness to them. De Lisle v.
Union Bank of Scotland, 83 L. J. Ch. 166;
[1914] 1 Ch. 22; 109 L. T. 727; 58 S. J. 81;
30 T. L. R. 72— C. A.
Trustee Mortgagees — Legal Estate — Vest-
ing Order — Tender of Principal, Interests, and
1049
MORTGAGE.
1050
Costs of Reconveyance — Validity of Tender —
Costs of Vesting Order — Costs of Action.] —
The ordinary rule that a mortgagor must bear
the costs of reconveyance involves the payment
of the costs of a vesting order where, without
such an order, the mortgagees are unable to
make a good title. Webb v. Crosse, 81 L. J.
Ch. 259; [1912] 1 Ch. 323; 105 L. T. 867;
56 S. J. 177— Parker, J.
A mortgagee is not guilty of misconduct
so as to relieve the mortgagor of liability for
interest or costs, merely because he transfers
the mortgage debt, retaining the property
subject to redemption as trustee for the person
to whom the debt is transferred. lb.
A tender of principal, interest, and costs
by a mortgagor to a mortgagee, to be good,
need not be such a tender as w"ould afford
a defence to an action at law. But where
a tender is raafle conditional on the execution
of a conveyance, a reasonable time must be
allowed to obtain the execution of the convey-
ance, especially where the conveying parties
are not the parties to whom the tender is
made. lb.
Trustees advanced trust moneys on the
security of a mortgage in fee-simple of cer-
tain house property. Subsequently one of the
trustees disappeared and could not be found.
The remaining trustee appointed a new trustee
to be co-trustee with him, and the appoint-
ment contained a vesting declaration, the
effect of which was to vest the moneys secured
by the mortgage and the right to receive the
same in the appointor and the appointee, but
to leave the legal estate still vested in the
appointor and the trustee who had disappeared.
The appointor and the appointee eventually
gave notice to the mortgagor to pay the debt.
Upon the mortgagor offering to redeem, ques-
tions arose as to who should bear the costs of
the vesting order which would be necessary in
order to get in the legal estate vested in the
trustee who had disappeared. The mortgagor
declined to pay for such an order, but tendered
through his solicitors principal, interest, and
costs. The tender was made by the mort-
gagor's solicitors to the managing clerk of the
mortgagee's solicitor without previous appoint-
ment. The managing clerk had no authority
to act in the matter and refused the tender : —
Held, in a redemption action, first, upon the
facts, that the tender was not good, and that
interest on the mortgage debt did not cease to
run in favour of the mortgagees as from the
date of the tender; secondly, that the costs of
the vesting order and of the action must be
borne by the mortgagor, there being nothing
which would justify the Court in varying the
usual terms upon which a mortgagor is allowed
to redeem. Rourke v. Robinson (80 L. J. Ch.
295: ri911] 1 Ch. 480) discussed and dis-
tinguished. 76.
X. FORECLOSURE.
See also Vol. IX. 1708, 2519.
Order for Sale in Default of Payment —
Default of Payment — Valuation of Mortgaged
Property — Deficient Security — Foreclosure
Ordered instead of Sale.] — In an action for
foreclosure in which the mortgagor did not
appear the Master certificated that a certain
sum was due to the plaintiff under the
memorandum of charge, and the usual order
nisi was made fixing a day for payment by
the mortgagor, and in default for sale of the
mortgaged property and application of the
proceeds of sale in payment of what was due
to plaintiff. Default was made in payment of
what was due on the day appointed. The
plaintiff adduced evidence that the property
was of less value than the amount certified to
be due to him on the security of the mort-
gage, and asked for foreclosure instead of
sale. The defendant had not appeared to the
action, nor did he appear on this application :
— Held, that, it not being for the benefit of
either party that the costs of a sale or
attempted sale should be incurred, foreclosure
would be ordered instead of sale. Lloyds Bank
v. Colston, 106 L. T. 420— Warrington, J.
Necessary Parties — Joint Mortgage of
Shares in Estate — Each Co-mortgagor
Primarily Liable for Part of Debt — Mutual
Indemnities — Foreclosure Proceedings against
one Mortgagor by Prior Mortgagee of His
Share — Co-mortgagors Necessary Parties to
Proceedings.] — A co-mortgagor, by way of
collateral security, as distinguished from a
mere surety by covenant, is a necessary party
to foreclosure proceedings brought against the
principal mortgagor by a prior mortgagee of
the principal mortgagor's share in the mort-
gaged property. Stokes v. Clendon (3 Swanst.
150n.) followed. Gee v. Liddell. 82 L. J. Ch.
370; [1913] 2 Ch. 62; 108 L. T. 913—
Warrington, J.
A, B, and C were entitled as tenants in
common in equal shares to the residuary estate
of a testator. In 1881 A mortgaged his share
to X. In 1882 A, B, and C joined in a mort-
gage to Y to secure an advance to B. B
alone covenanted to repay the money ; but
A, B, and C assigned their respective shares in
the estate to the mortgagee, subject to a proviso
for redemption by the three or any of them.
The mortgage deed provided that as between
A, B, and C and the respective premises mort-
gaged by them each should be primarily liable
to the payment of a specified portion of the
mortgage debt, and that each should accord-
ingly contribute in those proportions towards
the payment of the debt, and indemnify the
others against payment of the portion in
respect of which he was to be primarily liable.
In 1884 X obtained a foreclosure order absolute
in proceedings against A, to which B and C
were not parties : — Held, that B and C were
necessary parties to the foreclosure proceedings,
and not having been made parties were not
bound by them, though they were binding on
A ; and that the persons entitled to their shares
were accordingly entitled to contribution from
A's share in respect of the mortgage of 1882.
7b.
Right of Contribution — Sales of Parts of
Share by Prior Mortgagee — Purchasers not
Liable to Contribution.' — The executor of X
assigned to purchasers shares in the premises
comprised in the mortgage by A to X in 1881,
retaining the remainder of the property : —
Held, that the purchasers took the shares with-
1051
MOKTGAGE— MUSIC HALL.
1052
out any deduction in respect of the contribution
to which the holders of B's and C's shares in
the testator's residuary estate were entitled.
7b.
XI. SALE.
See also Vol. IX. 1757. 2522.
Power of Sale — Duty of Mortgagees —
Alleged Undervalue on Sale.] — The purchaser
of mortgaged property sold under a power of
sale is entitled, unless there is proof of fraud
or collusion with the vendor, to the full benefit
of his purchase unless the price is so low as
in itself to be evidence of fraud or collusion
or knowledge of the existence of facts which
would invalidate the sale. Haddington Island
Quarry Co. v. Hu.son, 81 L. J. P.C. 94; [1911]
A.C. 722; 105 L. T. 467— P.C.
It is the duty of a mortgagee when realising
the mortgaged property by sale to behave in
conducting such realisation as a reasonable
man would behave in the realisation of his own
property, so that the mortgagor might receive
credit for the fair value of the property sold.
But such a doctrine recognises as a necessary
corollary the right of the mortgagee to treat
the reasonable expenses of such realisation as
a deduction from the amount realised, and,
indeed, unless that is done, the sale price does
not truly represent the value of the property
sold, because it is a sum which the owner could
not have obtained for it without paying the
necessary costs of realisation. McHugh v.
ih^ion Bank of Canada, 82 L. J. P.C. 65 ;
[1913] A.C. 299; 108 L. T. 273; 29 T. L. E.
305— P.C.
Order for Sale of Lands — Service of Notice
on Prior Mortgagee.] — Order XVI. rule 40,
applies in the case of an order for sale of
lands made in an action brought by a puisne
mortgagee against the mortgagor for the sale
of the mortgaged lands, and the Court has
jurisdiction under this rule to direct the prior
mortgagee to be served with notice of the
order. Armstronq v. Dickson. [1911] 1 Ir. R.
435— M.R.
XII. RECEIVER.
See also Vol. IX. 1797, 2526.
Second Mortgagee's Action — Appointment
of Receiver — Rents Paid to Receiver — Rights
of First Mortgagee.] — When a receiver has
been appointed by the Court in an action by
a second mortgagee to which the first mort-
gagee was not a party, the receiver is entitled
to the rents of the property until the first
mortgagee intervenes. For this purpose mere
notice by the first mortgagee to the tenants to
pay rents to himself will not divest the
possession of the receiver : application to the
Court is necessary, and the receiver is entitled
to retain as against the first mortgagee any
rents received by him prior to the date of such
application, although the tenants have already
had notice to pay rent to the first mortgagee or
a receiver appointed by him. Thomas v.
Briqstocke (4 Russ. 64) and Preston v. Tun-
bridge Wells Opera-House, Liin. (72 L. J. Ch.
774; [1903] 2 Ch. 323). followed. Yorkshire
Insurance Co. v. Metropolitan Amalgamated
Estates, Lim., 81 L. J. Ch. 745; [1912] 2 Ch.
497; 107 L. T. 54.5— Swinfen Eady, J.
XIII. COSTS.
See also Vol. IX. 1832, 2528.
Mortgagee's Costs — Realisation of Security
— Surplus — Action for Account — Action in
Nature of Redemption Action.] — The rule that
a mortgagee is entitled by contract to the costs
properly incident to a redemption action does
not apply to an action for account against the
mortgagee after he has realised his security
by sale. Tanner v. Heard (23 Beav. 555) and
Charles v. Jones (56 L. J. Ch. 745; 35 Ch. D.
544) followed. Williams v. Jones, 55 S. J. 500
—Eve, J.
See also Webo v. Cross, ante, col. 1049.
MORTMAIN.
See CHARITY.
MOTOR CAR.
See WAY.
MUNICIPAL
CORPORATION.
Elections.] — See Election Law.
Other Matters.] — See Corpor.^tion.
MURDER.
See CRIMINAL LAW.
MUSIC HALL.
5ee THEATRE.
1053
MUTINY— NEGLIGENCE.
1054
MUTINY.
See AKMY AND NAVY.
NAME.
See COMPANY : TRADE NAME.
NATIONAL HEALTH.
See INSURANCE.
NATIONAL INSURANCE.
See INSURANCE.
NAVIGATION.
See SHIPPING.
NECESSARIES.
See INFANT: LUNATIC.
NEGLIGENCE.
I. Nature of Act.
A. In Management of Railway, 1054.
B. In Driving Vehicles.
1. Tramways and Omnibuses, 1057.
2. Motor Cars, 1060.
C. Dangerous and Defectire Chattels.
1061.
D. Dangerous Premises, 1063.
TI. Relationship of Parties, 1071.
ITT. Actions for Negligence.
A. Under Lord CampheU's .ict. 1073.
B. In Other Cases — Damages, 1075.
I. NATURE OF ACT.
A. In Management of Railway.
See also Vol. X. 31, 1662.
Sparks from Locomotive Engine — Negligent
Use of Engine.] — In an action against a rail-
way company for damages for personal injuries
to certain children, it was alleged that while
the children were standing on a railway plat-
form the driver of the engine of a train, finding
it necessary to put on steam while passing the
platform, did so carelessly, unnecessarily, and
unskilfully, in such volume that large quan-
tities of live cinders and soot were driven from
the funnel and fell upon the children, causing
the injuries complained of. It was also
alleged that the defenders or their servants
were in fault in not having the funnel properly
cleaned from time to time, and in not having
a cage at the mouth of the funnel, or adopting
other means to prevent such an occurrence : —
Held, that the averments did not disclose a
relevant case of improper construction, but did
disclose a relevant case of improper use of the
engine. Gray v. Caledonian Railway, [1912]
S. C. 339— Ct. of Sess.
Passenger on Railway Platform Struck by
Open Door of Train in Motion.] — The pursuer,
while walking along one of the platforms of
the defenders' station, was struck by an open
door of a train which entered the station from
behind her. The door, which had no handle
on the inside, was on the side of the train
which was next the platform only at the
station of departure and at the station in
question ; at the ten intermediate stations the
opposite side of the train had been next the
platform. There was evidence to shew that
the door was swinging open and that the com-
partment was empty when the train entered
the station in question, but it was not proved
how the door came to be open, or whether the
compartment was occupied in the course of
the train's journey. In an action claiming
damages the jury found for the pursuer : —
Held, first (diss. Lord Salvesen), that there
was evidence on which the jury might infer
negligence on the part of the defenders ; and
secondly, that the pursuer had not, as the
defenders alleged, been guilty of contributory
negligence in walking too near the edge of
the platform. Bums v. North British Rail-
way, [1914] S. C. 754— Ct. of Sess.
Collision — Trespasser.] — The respondent,
being in the station of the appellant company,
entered without leave or payment a car belong-
ing to another company for the purpose of
conveyance into the latter company's station.
As he stood in a precarious position with one
foot on the platform step a freight train of the
appellants backed into the train on which he
was standing, and he was thrown off the car
platform and seriously injured : — Held, that,
as the respondent was a trespasser both on the
premises of the appellants and on the other
company's train, he was not entitled to
damages. Crand Trunk Railway v. Barnett,
80 L. J. P.C. 117 ; [1911] A.C. 361 ; 104 L. T.
362 ; 27 T. L. R. 359— P.C.
1055
NEGLIGENCE.
1056
Level Crossing — Duty of Railway Company
to Give Adequate Warning of Approaching
Trains.] — A man while driving a horse and
cart over a crossing on the defendants' railway
— the crossing being habitually used for
vehicular traffic to the knowledge of the defen-
dants without hindrance by them — was killed
by a train belonging to the defendants. The
line curved before coming to the crossing, and
at a point 183 yards above it there was a board
directing engine drivers to whistle. A train
travelling at twenty-five to thirty miles an
hour would take about 12J seconds from
this point to the crossing. There were trees
along the side of the line which prevented
the signal being easily seen, and to some
extent might prevent any one approaching the
crossing from hearing a whistle. In an action
against the defendants the jury found that
the defendants had not provided sufficient safe-
guards for vehicular traffic, having regard to
the character of the neighbourhood : — Held,
that there was evidence justifying this finding.
Jenner v. South-Eastern Railway, 105 L. T.
131; 75 J. P. 419; 55 S. J. 553; 27 T. L. E.
445— D.
Railway Crossing Road — Omission to
Give Warning — Injury to Foot Passenger.] —
A person passing from one side to the other
of a street across which a railway passed on
the level was injured by an engine belonging
to the railway company. By the Canadian
Railway Act, in the case of a train approach-
ing a highway crossing on the level the duty
is imposed of giving warning by whistling and
the ringing of a bell. In an action to recover
damages by the person who was injured the
jury found that he had not taken sufficient
precautions in crossing the track, and that the
company's servants had not given warning of
the approach of the engine : — Held, that to
make the railway company liable it must be
shewn that the omission to whistle or give the
other warning, or both combined, and not the
folly and recklessness of the person injured,
caused the accident. Grand Trunk Railway of
Canada v. McAlpine, 83 L. J. P.C. 44; [1913]
A.C. 838 ; 109 L. T. 693 ; 29 T. L. E. 679— P.C.
Platform — Fog — Insufficient Lights — No
Adequate Warning of Danger to Intending
Passengers."" — The plaintiff sued the defen-
dant company to recover damages for personal
injuries sustained by her at one of their rail-
way stations. She intended travelling from
that station. The night was very foggy, and
the lamps on the platform did not shew
through the fog. While walking along the
platform the plaintiff fell on to the rails and
was injured. Several other people had fallen
off the platform earlier on the same evening.
The jury found that the accident was due to
the negligence of the defendants : — Held, that
the plaintiff was entitled to recover, as the
circumstances imposed upon the defendants a
duty to take all reasonable precautions to pro-
tect the plaintiff effectively from the dangers
besetting all movement on the platform on the
night in question, and that there was evidence
which entitled the jury to find the defendants
had failed to discharge the duty that rested
upon them. London, Tilbury, and Southend
Railway v. Paterson, 29 T. L. E. 413^
H.L. (E.)
Company's Private Dock — Shunting Opera-
tions— Duty to Close Gates or Give Warning
before Shunting Commenced.] — In a dock
owned by a railway company three lines of
rails connecting the quays with the main rail-
way system crossed the road leading into the
dock on the level at a point inside and opposite
the dock gate. A seaman entered the dock
by the gate, which was open, and attempted
to pass between two waggons which were
standing on the crossing. While he was doing
so the waggons were shunted, and he was
caught between the buffers and injured. In
an action by him against the railway company,
claiming damages, he averred that the defen-
ders were at fault in neither shutting the gate
nor giving warning before beginning to shunt
the waggons : — Held, that there was no duty
on the railway company either to shut the gate
or to give warning before beginning to shunt
the waggons, and action dismissed. Clark v.
North British Railway, [1912] S. C. 1—
Ct. of Sess.
Persons other than Passengers Permitted to
be in Railway Station.] — A person who goes
upon premises as a mere licensee is not there
at his own risk if he suffers injury through
the negligent act of the servants of the owner,
committed in the course of their employment,
after the licensee has entered the premises.
So where a person, who had been permitted
to go upon a railway platform to see friends
off by a train, was injured through the fault
of the station employees in starting a train
without closing the doors, the railway company
were held liable in damages. Tough v. Nortli
British Railway. [1914] S. C. 291— Ct. of
Sess.
Duty towards Persons Using Company's
Premises — Unfenced Bank — Horse Left Un-
attended."— The duty of a railway company
towards persons coming upon their premises as
of right to do business with them is no higher
than that of an occupier of private premises
towards persons whom he invites to come upon
them, being in both cases a duty to take
reasonable care that the premises are reason-
ably safe for persons using them in the ordinary
and customary manner and with reasonable
care. Norman v. Great Western Railway,
84 L. J. K.B. 598; [1915] 1 K.B. 584;
112 L. T. 266; 31 T. L. E. .58— C.A.
The defendants were in occupation of a
railway station, comprising a goods yard. As
a person entered the yard there was on the
right a wall, and backing against this wall,
about sixty feet from the entrance, there was
a weighing office for goods. Beyond the office
the wall came to an end, and on that side
of the yard there was an unfenced grass bank
about seven feet high, sloping down to a
culvert at the foot. On the left of the yard,
opposite to the wall and the bank, was the
railway line, the distance between the line
and the top of the bank being about thirty-
five feet. Goods having been consigned by
the defendants' railway to the plaintiff, he
sent his driver with a horse and cart to fetch
I
1057
NEGLIGENCE.
1058
them, the driver having often been to the
yard before and being well acquainted with it.
The goods having been transferred to the cart
from some trucks which were standing on the
railway line at a point further from the
entrance to the yard than the weighing office,
the driver brought the horse and cart back to
a point near the weighing office, and he left
them there unattended while he went into the
office for the purpose of signing for the goods.
While he was in the office the horse backed
the cart to the bank, and both of them fell
over it, the horse being so badly injured that
it had to be killed. The plaintiff brought an
action against the defendants in the County
Court, claiming damages for alleged breach of
duty on the part of the defendants in not
having fenced the bank, and at the trial, on
proof of the above facts, the jury found for
the plaintiff, and the Judge entered judgment
for him. In the Divisional Court Bray, J.,
was of opinion that there was, and Lush, J.,
that there was not, evidence of a breach of
duty on the part of the defendants, the result
being that the judgment of the County Court
Judge was affirmed : — Held, by the Court of
Appeal, that there was no evidence of any
breach by the defendants of the duty which
they owed to the plaintiff, and that the
decisions of the Courts below should be set
aside and judgment entered for the defendants.
lb.
Decision of the Divisional Court (83 L. J.
K.B. 669; [1914] 2 K.B. 153) reversed. lb.
Child Straying on Line — Knowledge of
Company — Leave and Licence — Liability.] —
An infant two and a half years old. whose
parents lived in a house close to the defen-
dants' line, went on the main line of the rail-
way and was injured. The jury found that
the child got on the line through a fence
separating the railway from a high road ;
that some of the railway servants knew that
children were in the habit of playing on a
pile of sleepers inside the fence, but did not
know they were in the habit of getting on
the main line : that the fence was not reason-
ably fit for separating the railway from the
high road, having regard to the proximity of
the houses ; and that the children were in the
habit of getting on to the pile of sleepers by
the leave or licence of the defendants : — Held,
that the leave and licence found by the jury
did not extend to make the defendants liable
for what happened to a child going beyond
the pile of sleepers on to the line, and that
judgment was rightly entered for the defen-
dants. Cooke V. Midland Great Western
Railway of Ireland (78 L. J. P.C. 76; [1909]
A.C. 229) distinguished. Jenkins v. Great
Western Railway, 81 L. J. K.B. 378: [1912]
1 K.B. 525 ; 105 L. T. 882— C. A.
B. Ix Driving Vehicles.
See also Vol. X. 43, 1664.
1. Tramways and Omnibuses.
Tramcar — Overcrowding — Precautions to be
taken by Tramway Owners.] — On the occa-
sion of a football uiatch to be played in the
suburb of B. the plaintiff boarded a tramcar
of the defendants labelled " Linfield " (the
football ground) "or Windsor Avenue." When
the plaintiff took his seat on the top there was
plenty of room, but as the car proceeded
passengers continually got on, and the car
became overcrowded. On reaching a stopping-
place within a short distance of Windsor
Avenue some passengers alighted, descending
by the front steps to the motor man's platform,
the collapsible gate by which it was guarded
being then opened, and the step to the road
being let down. As the car was approaching
Windsor Avenue, the usual stopping-place for
the Linfield grounds, the plaintiff rose from
his seat, descended by the front steps, and
told the motor man to go on. which he did.
and the pressure of the descending crowd
behind the plaintiff threw him off the car and
he was severely hurt. At the trial the defen-
dants, at the close of the plaintiff's case, asked
for a direction, and did not offer any evidence
or suggest any questions to be left to the jury.
In answer to the questions left to them the
jury found that the defendants should have
expected that at Windsor Avenue, having
regard to the overcrowding, passengers would
leave the car hurriedly by the front platform :
that they did not take proper precautions to
prevent injury to any passengers so proceeding ;
and that it was by reason solely of failure to
take such precautions that the injuries to the
plaintiff occurred, it having been explained to
the jury by the Judge that they should not
find the last point in favour of the plaintiff if
there was contributory negligence on his part :
— Held, that the circumstances justified the
verdict, and that the plaintiff was entitled to
judgment thereon. Pickering v. Belfast Cor-
poration, [1911] 2 Ir. R. 224— C. A.
Failure to Stop when Insufficient Room
to Pass Another Vehicle.] — A was killed by
being crushed between a truck, which he was
pushing, and a wall, owing, as was alleged,
to the negligent driving of one of the defen-
dants' tramcars. The driver of the tramcar
was going dead slow just before the accident,
and it appeared that after the first part of the
car had safely passed the truck A was pushing
some one, who had a better opportunity than
the driver of seeing whether there was room
for the car to pass altogether, told the driver to
go on, which he then did, with the result that
A was crushed as above stated. In an action
by A's widow under Lord Campbell's Act, —
Held (Vaughan Williams, L.J., dissenting),
that on these facts there was no evidence to go
to the jury of negligence on the part of the
defendants' tramcar driver. Leaver v. Ponty-
pridd Urban Council, 76 J. P. 31; 56 S. J. 32
— H.L. (E.)
Passenger Stepping Out from Behind
Tramway Car without Looking.! — A passen-
ger who had alighted from a northward-bound
car, and who had passed immediately behind
it with the object of crossing to the further
side of the street, was knocked down and
injured by a southward-bound car at the
moment when she reached the nearest rail of
the line on which it was travelling. In an
action for damages against the tramway com-
34
1059
NEGLIGENCE.
1060
pany she admitted in evidence that she had
not looked to see if any traffic was approaching
from the north, but contended that the defen-
ders were liable in respect that the driver
o( the southward-bound car had neither sounded
Ills bell nor slowed down in passing the
stationary car, as he was bound to do. The
jur}' having returned a verdict for the pursuer,
the Court set aside the verdict and gave judg-
ment for the defenders, holding that, even on
the assumption that the driver was to blame
as alleged, the pursuer's evidence shewed that
the accident was due to her own negligence in
failing to take the ordinary precaution of
looking for approaching traffic, it being clear
that the southward-bound car must have been
so close to the pursuer when she stepped into
the danger zone that neither sounding the bell
nor slowing down could have prevented the
accident. Dublin, Wicklow, and Wexford
Railway v. Slattery (3 App. Cas. 115-5) distin-
guished. Macleod v. Edinburgh and District
Tramways Co., [191.S] S. C. 624— Ct. of Sess.
Statutory Duties and Powers — Latent
Defect — Liability.] — The plaintiff was a pas-
senger on the outside of an uncovered tramway
car belonging to the defendants, which was
propelled by means of overhead electric trac-
tion. The wheel at the head of the trolly arm
was detached from the electric wire and the
trolly arm was plucked away from the standard
at its socket and fell upon the plaintiff's head.
Such an occurrence was extremely rare, and
no contrivance had been discovered to prevent
it. The system of electric traction adopted
by the defendants was the best and most
widely used ; the apparatus on that particular
car on which the accident occurred was in
perfect order ; and there was no negligence on
the part of the defendants' servants. An
action was brought by the plaintiff against the
defendants claiming damages in respect of the
injuries sustained by him. At the trial before
Channell, J., and a special jury the learned
Judge in his summing-up said that the plain-
tiff could only be entitled to recover damages
if there was negligence on the part of the
defendants in carrying him as a passenger ;
that the defendants were not insurers ; and
that they were bound to take every reasonable
precaution that could be taken to secure the
safety of their passengers, but not as insurers.
The jury found for the plaintiff, but stated
that no one of the alleged acts of negligence
of the defendants was established to the satis-
faction of the jury. The defendants applied
for judgment or a new trial : — Held (dissen-
tiente Farwell, L.J.), that the verdict of the
jury shewed that the defendants discharged
the burden which rested upon them, and that
the only negligence was disproved notwith-
standing the plaintiff's prima facie case.
Newberry v. Bristol Tramways and Carriage
Co., 107 L. T. 801; 11 L. G. R. 69; -57 S. J.
172; 29 T. L. K. 177— C. A.
Per Cozens-Hardy, M.R. : As to the standard
of care required in the case of a carriage of
passengers, it is sufficient that the carrier
should adopt the best-known apparatus, kept
in perfect order, and worked without negligence
by the servants he employed. If he does that
he ought not to be responsible for the conse-
quences of an extremely rare and obscure acci-
dent which cannot in a business sense be
prevented by any known means. 76.
Omnibus — Onus of Proof of Soundness —
Defendants Liable in the Alternative — Non-
suit as against one Defendant — New Trial.] —
An omnibus belonging to T. upset owing to a
wheel being wrenched off by tramlines belong-
ing to C, so that the plaintiff, a passenger,
was injured. In an action against T. and C.
in the alternative the Judge nonsuited the
plaintiff as against T., and the jury found in
favour of C, after evidence had been called
by the plaintiff to prove that the omnibus was
sound and that the accident was due to a
defect in the tramline : — Held, that there was
some evidence of negligent driving, and that
the onus lay on T. to prove that the omnibus
was sound, and that the attempt of the plaintiff
to prove in the first trial that the omnibus
was sound was no objection to granting him
a new trial. Lilly v. Tilling, 57 S. J. 59—
C.A.
2. Motor Cars.
Control of Owner — Responsibility for Dam-
age.] — The defendant was the owner of a
motor car which was being driven by his son.
The defendant was not in the car, but his
driver was sitting beside his son. A collision
occurred between the defendant's car and a
car belonging to the plaintiff owing to the
negligent driving of the defendant's son. In
an action for damage caused by the collision
the defendant stated that he permitted his son
to use the car, but never allowed him to go
out without the driver : — Held, that there was
evidence that the defendant was responsible
for his son's negligence. Reichardt v. Shard,
31 T. L. R. 24— C.A.
Decision of the Divisional Court (30 T. L. R.
81) affirmed. lb.
Collision — Plaintiff on Wrong Side of Road
— Plaintiff Misled by Defendant's Failure to
Shew Proper Light.] — A motor car was
travelling at night on its proper — that is, the
near or left — side of a country road, but, in
contravention of the Motor Cars Order, 1904,
without having a light burning upon the off
or right side of the car. An approaching motor
bicyclist, seeing only one light, mistook the
car for a bicycle, and imagining that the dark
mass of the car was a cart travelling in the
same direction as himself, swerved into the
middle of the road to enable him to pass the
cart when he overtook it In consequence of
this manoeuvre he collided with the motor car
and was injured. When the collision occurred
he was about three feet on his wrong side of
the centre of the road. In an action at the
instance of the motor bicyclist against the
driver of the car, — Held, that the pursuer had
not been guilty of contributory negligence, in
respect that the error which he had committed
in going over to the wrong side of the road
had been induced by the fault of the defender
in not having his off side light burning ; and
accordingly that the defender was liable in
damages. Pressley v. Burnett, [1914] S. C.
874— Ct. of Sess.
1061
NEGLIGENCE.
1062
Car Diverging from Proper Side of Road
to Avoid Oncoming Car — Contributory Negli-
gence.]— The driver of a motor car A. while
driving along a road on his proper side — the
north side — observed another car B coming
towards him on the same side — that is, on its
wrong side. The latter car continued on this
side until the two cars were so close that the
driver of A car was persuaded that a collision
was unavoidable unless the course of one or
other car was immediately altered; and,
believing that the driver of B car did not mean
to give way, he deflected his car towards the
south side of the road. At the same moment
the driver of B car also deflected his car from
the north side of the road, and thereupon the
two cars collided on the southern portion of
the road : — Held, that the collision was due
to the fault of the driver of B car in continuing
for so long on his wrong side of the road ; and
that the action of the driver of A car in leaving
his proper side of the road immediately before
the collision could not in the position of diffi-
culty in which he was placed by the conduct
of the driver of B car be deemed contributory
negligence. Wallace v. Bergius, [1915] S. C.
205— Ct. of Sess.
C. Danc.erous axd Defective Chattels.
See also Vol. X. 60, 1667.
Article Dangerous in Itself — Liability of
Manufacturer for Injury to Person not Party
to Contract.] — The plaintiff was injured by
the e.xplosion of a brazing lamp manufactured
by the defendants and by them supplied to a
retail dealer from whom it was purchased by
the plaintiff : — Held, that the question of
whether the lamp was an article dangerous
in itself so as to impose a duty upon the
defendants in regard to it to a person to whom
they supplied it or into whose hands it came
was a question of law for the Judge and not
of fact for the jury. Blacker v. Lake and
Elliot, 106 L. T. 533— D.
Per Lush, J. — The manufacturer of an
article dangerous in itself has a duty to the
person to whom he supplies it to warn him
of its character, and a breach of that duty
may render him liable to the recipient, or to
a third person into whose hands he ought to
contemplate it may come, if he is injured
whilst using it. 76.
The manufacturer of a dangerous article,
the nature of which he has disclosed or the
danger of which is apparent on the face of it,
is under no obligation to a third person who
is injured owing to its imperfect manufacture.
George v. Skivington (L. R. 5 Ex. 1) dissented
from. Ih.
Defective Ginger-beer Bottle — Bottle Pur-
chased from Retailer — Injury to Purchaser
through Bursting of Bottle — Liability of
Manufacturer of Ginger Beer in Absence of
Knowledge of Defect in Bottle — Defect Dis-
coverable by Exercise of Reasonable Care and
Skill.] — The defendants, who were inan'if:ic-
turers of ginger beer, sold a bottle of ginger
beer to a shopkeeper, who re-sold it to the
plaintiff. The bottle, w'hich had been pur-
chased by the defendants, was defective, but
the defendants when they sold it had no know-
ledge of the defect. The plaintiff, who was
injured through the bursting of the bottle
when it was being opened, brought an action
against the defendants in which the jury found
that the accident was caused by the defect in
the bottle ; that the defect was not a latent
defect which could not have been discovered by
the exercise of reasonable care and skill, and
that the defect was owing to the negligence of
the defendants : — Held, that as the defendants
had in fact no actual knowledge of the defect
in the bottle they were not liable, notwith-
standing that such defect was discoverable by
the exercise of ordinary care. White v. Stead-
man (82 L. J. K.B. 846) distinguished. Bates
V. Batey d Co., 82 L. J. K.B. 963; [1913]
3 K.B. 351; 108 L. T. 1036; 29 T. L. R. 616
— Horridge, J.
Poisonous Cattle Dip — Wrong Quantity on
Labels.] — The appellants, who owned an
estate in South Africa, ordered from the respon-
dents, who were chemists and druggists,
5 cwt. of arsenite of soda for the purpose of
dipping cattle, and it was delivered in ten
drums, on which were labels with the word
" Poison," and the statement that the tin
contained 8Mb. of 80 per cent, arsenite of
soda, and that the whole contents of the tin
were to be dissolved in 400 gallons of water
to make the dip. Each drum in fact contained
561b. of arsenite, and the labels were meant
for tins and not for drums. The manager of
the appellants' estate, after communicating
with the respondents, believed that each
drum contained only 8ilb. of arsenite, mixed
with something else, and the whole of the
contents of the ten drums were placed in
4,350 gallons of water. The dip so made was
too strong and some of the appellants' cattle
were killed and others injured. In an action
by the appellants against the respondents for
negligence the respondents denied negligence
and pleaded contributory negligence. The
Judge at the trial found in favour of the appel-
lants : — Held, that there was evidence on
which the Judge could reasonably so find.
British Chartered Co. of South Africa v.
Lennon, Lim., 31 T. L. R. 585— P. C.
Misdelivery of Dangerous Article — Failure
of Consignee to Notice Error — Liability of
Carrier.] — A steamship company, which nad
received for carriage two barrels of paraflSn
oil consigned to a shopkeeper, negligently
delivered along with them a third barrel
containing naphtha, which had been consigned
to some one else. All three barrels were
similar in appearance, but each had stencilled
on one end a notice of its contents. The
barrels were delivered at the shopkeeper's store
to one of his assistants, who did not know
how many barrels had been ordered, and who
receipted the entry in the carrier's delivery
book, in which all three barrels were stated
to contain paraffin. The assistant without
noticing the stencilling on the barrels, and
believing them to contain paraffin, placed them
in the store. It was not brought to the notice
of the shopkeeper that three barrels had been
delivered. More than three weeks after the
dcliverv of the barrels one of the assistants,
1063
NEGLIGENCE.
1064
desiring to obtain paraffin, went to the store
with a lighted candle and tapped the barrel
of naphtha, whereupon an explosion ensued,
which destroyed the store and its contents.
In an action of damages at the instance of
the consignee against the carriers the Court,
repelling a plea of contributory negligence,
held that the defenders were liable for the
loss occasioned to the pursuer through the
explosion. Macdonald v. Macbrayne, Litn.,
[1915] S. C. 716— Ct. of Sess.
Lift Accessible to and Allowed to be
Operated by Members of the Public — Acci-
dents to Children.] — A father brought an
action of damages against a railway company
in respect of injuries sustained by his son, a
boy of seven years of age, on a lift in one of
the defenders' stations. The pursuer averred
that the lift was used for the purpose of con-
veying luggage and goods between two levels
of the station ; that it was open to the public ;
and that, in the knowledge and with the
acquiescence of the defenders' servants, mem-
bers of the public were in the habit of going
on the lift and of operating it, and boys were
in the habit of going up and down therein for
their own amusement ; that on the occasion of
the accident the lift was being used by a
message boy on the invitation of one of these
servants, for the purpose of delivering a
parcel ; that the pursuer's son entered the lift
when it was being so used, and his foot, owing
to the construction of the lift, was caught and
crushed between the platform of the ascending
lift and the stationary floor of the level which
it was approaching. He further averred that
the lift was a trap or dangerous attraction to
children, and that the defenders had neglected
the duty of insuring that the public had no
access to the lift or to its operating mechanism,
and of preventing the use of it by others than
their own servants. There was no averment
that the construction of the lift was of an
unusual character : — Held (Lord Skerrington
dissenting), that the pursuer had failed to
make any relevant averment of fault against
the defenders, and action dismissed. Wilson
V. Glasgow and South-Western Railway,
[1915] S. C. 215— Ct. of Sess.
D. Dangerous Premises.
See also Vol. X. 62, 1669.
Control of Premises — Duty towards Children
Using.]— Per The Lord President: The duty
of one having the control of premises is the
same towards children as towards adults.
Grant v. Flerning d Co., [1914] S. C. 228—
Ct. of Sess.
Trap — Liability of Occupier.] — If an
occupier of premises allows a man to
come there to do work in which the
occupier is interested, and the man is un-
acquainted with the existence of a hatchway,
which, owing to the darkness, he cannot see,
the occupier is bound either to give him reason-
able notice of the danger or to fence the hatch-
way so as to render it harmless. Dickson v.
Scott, Lim.. ri9141 W.C. & I. Rep. 67;
30 T. L. R. 256-C.A.
Boarding-House Keeper — Goods of Guest —
Theft.] — It is the duty of a boarding-house
keeper to take reasonable care that the door of
the premises should be kept shut, in order to
prevent the entry of thieves, but such duty
does not amount to a guarantee that the door
will be kept shut. Paterson v. N orris,
30 T. L. R. 393— Lord Coleridge, J.
Heap of Stones Deposited by Landowner —
Injury to Infant from — Infant Mere Licensee
on Land — Non-liability of Landowner.] — A
landowner who allows persons, whether adults
or children, to come on to his land is not liable
for an accident which happens to one of them
there unless the coming on to the land was
the result of allurement or invitation, or unless
the accident was due to something in the nature
of a concealed trap or to something dangerous
and outside the ordinary use of the land which
the landowner brought on to it without warn-
ing the licensee. Latham v. Johnson, 82 L. J.
K.B. 258; [1913] 1 K.B. 398; 108 L. T. 4:
77 J. P. 137; 57 S. J. 127; 29 T. L. R. 124
-C.A.
A child of two and a half years of age came
unaccompanied on to land belonging to the
defendants, who were aware that children were
in the habit of coming there to play. Whilst
on the land the child was injui-ed by the fall
of a stone from a heap of stones deposited
there by the defendants : — Held (reversing the
decision of Scrutton, J.), that the child was
not entitled to recover damages from the
defendants for negligence. The child was at
most a mere licensee, while the use of the
land by the defendants had been perfectly
normal, and the heap of stones did not con-
stitute a trap. Cooke v. Midland Great
Western Railway of Ireland (78 L. J. P.C. 76;
[1909] A.C. 229) explained and distinguished.
Ih.
Street Lighting — Lamp Extinguished —
Accident — Local Authority — Whether Negli-
gent.]— The plaintiff, a taxi-cab driver, was
driving his cab at night along a street which
was under the control of the defendants, who
were a borough council, and the cab collided
with a refuge and was damaged. The refuge
was generally lighted by a lamp controlled by
a lighting company, but in an action by the
plaintiff against the defendants for negligence
the Judge found that though at the time of
the accident the lamp was out. there was
nothing to shew how it came to be extin-
guished, and that there was no evidence of
negligence on the part of the defendants or
of the lighting company : — Held, on appeal,
that on the facts there was evidence to justify
the Judge's finding. Brown v. Lambeth
Borough Council, 32 T. L. R. 61— D.
Building Contractor — Permission to other
Tradesmen to Use Scaffolding — Accident to
other Tradesman's Employee — Whether Con-
tractor Liable.] — The defendants entered into
a contract with the London County Council
to rebuild a school, and were to provide the
plant and afford to any other tradesman
employed by the Council the use of the
scaffolding for his own purposes, the defen-
dants having control of the premises and
1065
NEGLIGENCE.
1066
plant. The plaintiff, who was a hot-water
engineer and was not in the defendants'
eniploynient. was engaged on the premises in
fitting heating apparatus, and when using a
gangway erected by the defendants fell and
was injured. In an action by the plaintiff
against the defendants for negligence, the
jury found that the defendants were negligent
in the mode in which the gangway was con-
structed, and that the negligence caused the
accident. It was admitted for the plaintiff
that there was no concealed trap : — Held, that
the defendants were under no duty to the
plaintiff to provide a gangway which was
safe and were in the position of mere licensors,
and therefore the plaintiff could not recover.
Elliott V. Roberts d- Co., 32 T. L. K. 71—
Lush, J.
Highway — Cattle on — Open Gate — No Evi-
dence as to by Whom Opened — Burden of
Proof.] — The plaintiff was riding on a
bicycle at 10.30 p.m. along a highway adjoining
a field in which the defendant kept a hundred
cows. The fiekl in question communicated by
a gate with the highway, and at the time when
the plaintiff was passing the gate was open,
and she saw some cows coming through it. A
little further along were other cows which had
come from the field, some of which threw
the plaintiff down and injured her. At the
trial no evidence was given as to by whom
the gate had been opened. The learned Judge
held that, in the circumstances, the fact that
the defendant's gate was open and that his
cows had strayed on to the road through the
open gate and had caused the accident to the
plaintiff afforded evidence of negligence, and
that it was for the defendant to displace this
evidence by shewing that the gate was not
left open by reason of any negligence on his
part or on that of his servants. Upon the
evidence he held that the defendant had not
displaced this prima facie case, and gave judg-
ment for the plaintiff for 751. : — Held, that
there was no evidence upon which the County
Court Judge could find that the defendant
either by an act of his own, or by the neglect
of a duty which he owed to the public, pro-
duced an obstruction of the highway by his
cattle, and that judgment therefore should be
entered for the defendant. Ellis v. Banyard.
lOfi L. T. 51; 56 S. J. 139; 28 T. L. K. 122
-C.A.
Horse Straying — Damage to Cyclists —
Obligation of Owner or Occupier of Land
Adjoining Highway.] — A young horse which
had been placed by the defendant in a field
adjoining a liighway escaped owing to a
defective hedge and strayed upon the highway.
The plaintiffs were riding a tandem bicycle
along the highway, and on seeing the horse
they slowed down, but the horse turned round
suddenly and ran across the road, coming in
contact with the bic-ycle. The horse fell down,
and then, jumping up, lashed out and injured
one of the plaintiffs and damaged the bicycle.
In an action for damages l)y tlie ]ilaintiffs the
learned County Court Judge- found that there
was no evidence that th(> horse was vicious or
in the habit of trespassing or attacking bicycles
or any one upon the high road. He also found
that the defendant was guilty of negligence
in turning the horse into a field of which the
hedges were defective, but that, as the act of
the horse was not one which it was in the
ordinary nature of a horse to commit, the
defendant was not liable : — Held, that the
injury to the plaintiffs not being the natural
consequence of the defendant's negligence,
if any, the plaintiffs were not entitled to
recover. Joyies v. Lee, 106 L. T. 123 ; 76 J. P.
137; 56 S. J. 125; 28 T. L. E. 92— D.
Per Bankes, J. : The learned County Court
Judge was wrong in law in holding that there
had been negligence on the part of the defen-
dant in turning the horse into a field with
defective hedges, inasmuch as at common law
there is no duty on the owner or occupier
of land adjoining the highway to keep his
animals off the highway. Ih.
Fence — Inadequacy — Sheep Straying on
Highway — Collision with Motor-cab — Damage
to Cab.] — Some sheep belonging to the defen-
dant, owing to an inadequate fence, strayed
out of a field in his occupation on to a high-
way, and when the plaintiffs' motor-cab was
being driven along the highway, in daylight,
at sixteen to twenty miles an hour, one of
the sheep dashed out suddenly from the side
of the road and collided with the steering
apparatus, the result being that the cab was
overturned and damaged. In an action by
the plaintiffs against the defendant to recover
the amount of the damage the Judge at the
trial held that the defendant was liable on
the ground either of negligence or of a
nuisance : — Held, that, assuming there to
have been evidence of negligence or of a
nuisance, nevertheless it was not the proxi-
mate or effective cause of the damage, and
the damage was not its natural consequence,
but the cause was either the driver's failure
to avoid the sheep or an act of the sheep
which the defendant, as a reasonable man,
would not anticipate, and therefore the defen-
dant was not liable. Heath's Garage, Lim.
V. Hodges, 32 T. L. E. 134— D.
Sheep— No Light at Night.]— There is no
rule of law tliat to drive sheep along the
highway at night without a light is a negligent
act. Catchpole v. Minster, 109 L. T. 953;
12 L. G. E. 280; 30 T. L. E. Ill— D.
Employment of Independent Contractor
— Whether Principal Liable.] — The appellants,
who were the freeholders of a tied public
house W'hich was in the occupation of a
tenant, engaged a contractor to deliver beer
at the house. The contractor's man raised
the cellar flap, wliicih was in the highway,
and the respondent fell into the cellar while
the beer was being put into it. In an action
by the respondent against the appellants and
against the tenant to recover damages for
negligence judgment was given against both
defendants : — Held, on an appeal by the free-
holders, that they were not liable, as they
employed the contractor merely to deliver the
beer and not to interfere with the highway
by opening the cellar flap, and he could have
delivered the beer through the door if the
1067
NEGLIGENCE.
1068
tenant had so wished. Wilson v. Hodgson's
Kingston Brewery Co., 32 T. L. K. 60— D.
Leaving Steam-lorry in Road — Inten-
tional Interference by Stranger — Accident —
Evidence of Negligence — Proximate Cause.^ —
The defendants were the owners of a Foden
steam lorr}-. and they used it for delivering
beer at a public house. Three men travelled
with the lorry, and they left it on the road
in such a condition that it could not be set
in motion without removing the safety pin
and manipulating the gear, reversing, and
starting levers. While the men were absent
for a few minutes and were engaged in putting
the beer in the cellar, a soldier climbed on
the lorry and by pulling three levers succeeded
in putting it in motion, with the result that
the plaintiff was injured. In an action by
the plaintiff against the defendants for negli-
gence, the Judge decided in the plaintiff's
favour : — Held, on appeal, that it was no
negligence to leave upon the road a machine
which would not move unless some one inten-
tionally interfered with it, and consequently
there was no evidence of negligence, and that
even if there was negligence it was not the
proximate cause of the accident, and therefore
the defendants were entitled to judgment.
Rttoff V. Long d- Co., 32 T. L. E. 82— D.
Repair of Gas-pipe — Unguarded Fire.^ —
The defendants, who were a gas company,
were repairing a gas-pipe in a highway, and
for this purpose they had, on land immediately
adjacent to the highway and accessible to the
public, a fire over which there was a ladle
containing molten lead. Children were play-
ing about the road, and an employee of the
defendants was usually beside the fire and kept
them away from it, but he went for a moment
to help the other men in a trench, and a boy
who was passing spilled the lead accidentally
and it burned the plaintiff, a little girl, who
was playing close by. In an action by the
plaintiff against the defendants the Judge
found that the defendants were negligent in
leaving the fire unguarded, and he awarded
the plaintiff damages : — Held, on appeal, that
there was evidence to support the Judge's
finding. Crane v. South Suburban Gas Co.,
85 L. J. K.B. 172; 32 T. L. E. 74— D.
Door in Garden 'Wall Opening Outwards on
to Street — Injury to Person on Street.] — In
an action of damages against the magistrates
of Edinburgh and against the proprietors of a
tenement (which was let to tenants) in the
city, the pursuer averred that while he was
proceeding along a street which adjoined the
garden wall of the tenement a door in the
wall was suddenly opened outwards on to the
street and struck him in the face, causing him
serious injuries ; that the door as constructed
formed an obstruction to the street ; and that
it constituted a grave danger to the public and
a danger which was obvious to both defenders.
He averred fault against the proprietors for
having on their premises a door of this dan-
gerous construction, and he averred fault
against the magistrates in failing to remove
this dangerous obstruction to the street, which
he alleged they had power to do under certain
specified statutes : — Held, that the pursuer
had not stated a relevant case against either
defenders in respect (1) that having a door
opening outwards upon a street did not per se
infer negligence on the part of the proprietors,
and there were no averments of special circum-
stances— such as previous accidents — to raise
a case of negligence with regard to this parti-
cular door ; and (2) that the statutes did not
apply so as to make the magistrates liable.
Evans v. Edinburgh Magistrates, [1915] S. C.
89.5— Ct. of Sess.
Ice on Foot Pavement — Overflow from
Public Fountain — Responsibility of Road
Authority.] — A person was injured from the
effects of a fall on ice which had formed on
the foot pavement opposite a public fountain
under the defenders' control. It was averred
that the ice was caused by an overflow from
the fountain, but there was no allegation that
there was a structural defect in the fountain,
or that the defenders knew or ought to have
known of the overflow, and had neglected to
remedy it : — Held, that the pursuer's aver-
ments were irrelevant. Dictum of Pigott, B.,
in Shepherd v. Midland Railway (25 L. T. 879)
approved. O'Keefe v. Edinburgh Corporation,
[1911] S. C. 18— Ct. of Sess. '
Pavement — Defect in — Opening in Pave-
ment Covered by Metal Disc — Liability of
Proprietor of Disc — Liability of Road
Authority.] — A woman, while walking on the
foot pavement of a public street in A., in front
of P. & W.'s property, placed her foot on a
metal disc in the pavement covering an open-
ing into a cellar, with the result that the disc
tilted, and her leg was caught in the opening
and injured. The tilting of the disc was due
to the worn condition of the bevel in the flag-
stone of the pavement on which it rested. The
disc was the property of P. & W., and the
opening which it covered led into their cellar.
Under certain local Acts P. & W. were bound
to keep the covering of the opening in repair,
but the pavement was vested in the town
council and could not be altered without their
consent or other lawful authority. In an
action of damages by the injured woman
against the town council and against P. &
W., — Held, first, that the town council being
bound to keep the pavement in a safe con-
dition for the public, and having failed to
do so were liable to the pursuer ; but
secondly, that P. & W. were not liable, as
they had no control of, and could not interfere
with, the pavement. Laing v. Paull rf
Williamsons, [1912] S. C. 196— Ct. of Sess.
Defective Stopcock Box — Obligation of
Water Board.] — Section 8 of the Metropolitan
Water Board^ (Charges) Act, 1907, is not
retrospective in character. The plaintiff
caught her foot in a stopcock box in a street
outside a house, and fell and sustained in-
juries. The stopcock box in question, which
had been constructed by the defendants'
predecessors, was connected with the com-
munication pipe which carried the supply of
water from the defendants' main to the house
outside which the accident occurred : — Held,
that section 8 of the Metropolitan Water
1069
NEGLIGENCE.
1070
Board (Charges) Act, 1907, not licing retro-
spective, the stoi)cock box was repairable by
the defendants, and that, having become a
source of danger, and the plaintiff having been
injured thereby, the defendants were liable.
Batt V. Metropolitan Water Board, 80 L. J.
K.B. 521; [1911] 1 K.B. 845; 104 L. T. 385;
9 L. G. R. 307; 75 J. P. 174; 55 S. J. 330;
27 T. L. R. 258— D. Reversed, post, Water.
The plaintiff was injured by catching her
foot in one of the defendants' stopcock
boxes placed in the pavement. In an action
claiming damages in respect of those
injuries it was proved that it was the practice
of the defendants to fill up the space between
the top of the stopcock and the pavement with
a wisp of straw. The instructions of the
defendants were that the whole of the boxes
should be re-wadded when necessary three
times a year. At the time of the accident to
the plaintiff there was no proper wisp of straw
over the stopcock, and on the evidence the
Judge came to the conclusion that a sufficient
wisp of straw had not been put in on the last
occasion when the stopcock box was dealt with
by the defendants : — Held, that the plaintiff
was entitled to recover, inasmuch as the stop-
cock box was in fact dangerous through not
having the protection which the public had
become accustomed to expect, due to the failure
of the defendants to put a sufficient wisp of
straw in the hole. Held, further, that there
was a duty on the defendants to keep the
plugging of the stopcock box in order.
Rosenbaum v. Metropolitaii Water Board,
103 L. T. 284; 8 L. G. R. 735; 74 J. P. 378;
26 T. L. E. 510— Channell, J. New trial
ordered, 103 L. T. 739 ; 75 J. P. 12 : 9 L. G. R.
315; 27 T. L. R. 103— C. A.
School Playground — Leaving Dangerous
Material Unguarded in — Injury to Scholar —
Liability of Education Authority and Con-
tractor.]— A contractor, who was to carry out
certain repairs at a public elementary school,
left a quantity of rough stuff composed of sand
and lime in a truck in a corner of the school
playground. The headmaster of the school
gave instructions to the scliool caretaker to
have the stuff removed, as he considered it was
dangerous, and the caretaker telephoned to the
contractor asking him to remove it. The stuff,
however, was not removed. When the boys
came out of school the stuff was left unguarded,
and one of the boys threw a portion of the
stuff at the plaintiff, who was also a scholar
at the school, injuring his eye. In an action
by the plaintiff against the education autho-
rity and the contractor for damages, — Held,
that there was evidence upon which the jury
could find that both the education authority
and the contractor had been guilty of
negligence. Jackson v. London County Council,
10 L. G. R. 348; 76 J. P. 217; 56 R. J. 428;
28 T. L. R. 3.59 -C. A.
Public Fountain in Highway — Unsafe Con-
dition of.] — Whilst a procession was passing
through a street a man climbed on to a public
fountain, and in doing so dislodged the top
stone, which fell on to the plaintiff and injured
him. In an action by the plaintiff against the
defendant corporation, to whom the fountain
belonged, claiming damages, there was con-
flicting evidence as to the condition of the
fountain at the time of the accident, and the
jury found for the plaintiff. On an application
by the defendants for a new trial, — Held, dis-
missing the application, that the question
was entirely for the jury. McLoughlin v.
Warrington Corporation, 75 J. P. 57 — C.A.
Rubbish Heap in Field Frequented by
Public — Injury to Child.] —A child under
three years of age was injured through her
clothes becoming ignited in a fire burning upon
a rubbish heap where the burgh rubbish or
" coup " was deposited. In an action against
the burgh the pursuer averred that this coup
was situated in a grass field in the neighbour-
hood of his house and was not fenced off from
the field nor was the field sufficiently fenced
to exclude the public, who in fact used it as a
public park, and that children were in the
habit of playing upon the coup, all of which
was known to the defenders. The pursuer
further averred that it was the practice of the
defenders, or of those for whom they were
responsible, to collect and burn inflammable
material upon the coup, and that this practice
had been followed by rag-pickers, with the
acquiescence of the defenders. The pursuer
alleged fault on the part of the defenders, in
respect that they had failed to fence the coup
or field or to take other precautions to exclude
the public therefrom, and had failed, the coup
being unfenced, to watch and properly ex-
tinguish fires which might be lighted thereon :
— Held, that these averments were irrelevant
to found an issue against the defenders in
respect, first, that it appeared therefrom that
the defenders were not the owners of the field
or coup, and had therefore neither the right
nor the duty to fence them ; and secondly,
that the material which they put upon the
ground was not dangerous in itself, but only
became so when ignited, and there was no
averment that the defenders, or those for whom
they were responsible, had kindled the fire in
question. Lowery v. Walker (80 L. J. K.B.
138; [1911] A.C. 10) distinguished. Johnstone
V. Lochgelly Magistrates, [1913] S. C. 1078—
Ct. of Sess.
Sun Blind in Front of Shop and Over High-
way— Sun Blind Pulled Down by Mischievous
Act of Two Trespassers — Injury to Passer-by
— Liability of Occupier of Shop — Duty to
Take Reasonable Precautions.] — Tlie plaintiff
was walking along a highway under a sun
blind outside the defendant's shop, when two
men jumped up from the pavement to one of
the iron supports, which was seven feet six
inches from the ground, and mischievously
pulled the blind down on the defendant, with
tlic result that he was injured. The blind was
properly constructed and in a good state of
repair. There was evidence that accidents of
the kind had happened on other occasions to
l)linds of similar construction, the caus(> in
each case being that some person jumped up
to the iron support of the blind and pulled it
down : — Held, that there was no evidence on
which the Court could properly hold that tliere
was a duty on the defendant to have the blind
fixed and secured so as to prevent its being
1071
NEGLIGENXE.
1072
brought down on the plaintiff by the action of
the two men, and that the plaintiff was not
therefore entitled to damages. Wheeler v.
Morris, 84 L. J. K.B. 1435: 113 L. T. 644
— C.A.
Decision of the Divisional Court (84 L. J.
K.B. 269) reversed. lb.
Railway Company's Premises.] — See
cases ante. cols. 1054-1057.
II. RELATIONSHIP OF PAETIES.
See also Vol. X. 71, 1675.
Shopkeeper and Customer — Cat Rearing
Kittens Kept in Shop — Vicious towards Dogs
— Owner of Dog Attacked — Duty of Owner of
Cat to take Reasonable Care to Provide for
Safety of Customers.] — The plaintiff and her
husband went into a tea shop belonging to
the defendants, accompanied by a dog, with
the defendants" permission or acquiescence. A
cat belonging to the shop, which was rearing
kittens, came out of a store room and attacked
the dog. The plaintiff picked up the dog and
handed it to her husband. The cat then
sprang upon the plaintiff and bit her. The
plaintiff brought an action claiming damages
for the injury done to her and also for the
injury done to the dog. The jury found that
the cat had, to the knowledge of the defendant,
whilst rearing kittens a disposition to attack
a dog and a person holding a dog ; that the
cat attacked the dog unprovoked ; and that the
defendants had not taken reasonable precau-
tions for the safety of their customers. On
appeal by the defendants, — Held, that a cat
did not cease to be a domestic animal and
become dangerous to mankind merely because,
when she had kittens, she attacked a dog and,
by accident, a person who happened to be
there; and secondly, that, though the defen-
dants were under a duty to take reasonable
care to provide for the safety of their
customers, they were not liable for what
happened, because it was not the ordinary
consequence of their act in keeping a cat on
the premises, and was not such as would have
been foreseen by a person of ordinary sense
and prudence. Clinton v. Ljjons. 81 L. J.
K.B. 923: [1912] 3 K.B. 198: 106 L. T. 988;
28 T. L. R. 462— D.
Article Left in Shop Found by Shop
Assistant — Disappearance of Article — Breach
of Rule as to Lost Articles." — The plaintiff
Weill to the defendar.ts' shop on a Saturday
to buy a coat. She was wearing a coat
fastened with a diamond brooch, and she took
the coat off and put it on a glass case with the
brooch by the side of it. When leaving she
forgot the brooch, and it was handed by an
assistant to the shopwalker, who put it in his
desk. On the following Monday morning it
could not be found. By the defendants' rules
it ought to have been taken to their lost
property office. In an action by the plaintiff
against the defendants for negligence the
.Judge at the trial found that the defendants
had not exercised proper care, and he awarded
the plaintiff damages : — Held, that there was
evidence to support the Judge's finding.
Newman V. Bourne ti Hollingsworth,
31 T. L. R. 209— D.
Hospital — Unskilful Treatment of Patient —
Liability of Hospital Authority.] — Apart from
special contract the managers of a public
hospital are not responsible to the patients
whom they receive (whether paying or non-
paying) for unskilful or negligent medical
treatment, provided they have exercised due
care in the selection of a competent staff.
Hillyer v. St. Bartholomew's Hospital Gover-
nors (78 L. J. K.B. 958; [1909] 2 K.B. 820)
followed. Foote v. Greenock Hospital
Directors, [1912] S. C. 69— Ct. of Sess.
Unskilful Treatment by Doctor — Ground of
Action.] — The ground of action in a claim
for damages against a medical man for un-
skilful treatment is breach of his duty to his
patient and not hreach of contract with his
employer. Accordingly, a married woman
held to have a title to maintain such an action,
although the medical man had been employed
to attend to her by her husband and not by
herself. Edgar \.'Lamo7it, [1914] S. C. 277
— Ct. of Sess.
Death by Fire of Prisoner in Lock-up Pro-
vided by Municipality.] — M., the husband and
father of the appellants, was arrested by a
constable employed by the respondents, and
placed in a cell in the lock-up, which was pro-
vided and maintained by the respondents.
WTiile the constable, who was also the gaoler,
was absent from the lock-up, no one being
then in the building except M. and another
prisoner, a fire broke out, and M. died from
suffocation. It appeared that the constable
was absent in the performance of some of
his other duties at the time the fire broke out.
The appellants did not shew how the fire was
caused or that any one could reasonably
expect that a fire might take place. In an
action by M.'s widow, son, and daughter,
under Lord Campbell's Act, claiming
damages from the respondents for the death
of M., — Held, that the action failed, as the
appellants had not shewn any breach of duty
on the part of the respondents which caused
or contributed to the death of M. McKenzie
V. Chilliwack Corporation, 82 L. J. P.O. 22;
[1912] A.C. 888 ; 107 L. T. 570 : 29 T. L. R. 40
— P.C.
Sale of Food Unfit for Human Consumption
— Action against Medical Officer and Sanitary
Inspector for Non-communication of Condi-
tion of Food.] — The plaintiff, who carried on
business in Stepney, had consigned to him
certain tins of corned beef from Glasgow as
" rejects " — that is, food unfit for human food,
and to be used only for feeding poultry. The
Glasgow sanitary authorities notified the
defendant T., who was the Stepney medical
officer of health, as to the nature of the
consignment, and T. communicated it to the
defendant A., the Stepney sanitary inspector.
The defendants did not see the plaintiff on the
subject. The plaintiff having sold some of the
corned beef for human food was convicted in
respect thereof. In an action for damages
against the defendants for negligence in
1073
NEGLIGENCE.
1074
omitting to communicate to him the informa-
tion received from Glasgow as to the condition
of the corned beef : — Held, that the plaintiff
had failed to establish any cause of action,
and further, that as more than six months had
elapsed since the alleged neglect of the defen-
dants, the defendants were protected by the
Public Authorities Protection Act, 1893. Weir
V. Thomas, 79 J. P. 54— Darling, J.
Employment of Contractor — Liability of
Principal — Dangerous Work on Building Ad-
joining Highway — Absence of Precautions
against Danger to Public.^ — By an agreement
between a railway company and a firm of
contractors the latter were to build a super-
structure over the railway company's station,
and were to have a ninety-nine years' lease
of same. The new building, which adjoined
a public street, required scaffolding and hoard-
ings, which the contractors were to erect in
such a way as should be reasonably approved
by the railway company. A gantry was
also necessary by means of which building
materials might be raised to the top of the
existing building, and this gantry could only
be erected in a particular manner as provided
by the agreement. During the progress of
the building operations the plaintiff, while
walking on the pavement outside the station,
was injured by some timber falling on her from
the building, and in respect of her injuries
she sued both the railway company and the
contractors. Neither of the defendants called
any evidence as to how the timber fell. The
jury found that the accident was caused by
negligence, as there was not sufficient protec-
tion to the public on the footpath, and the
Judge gave judgment against both defen-
dants : — Held, on an appeal by the railway
company, that the agreement created no rela-
tionship . of principal and agent, that the
railway company were mere reversioners, that
that fact of their having a right to approve
plans did not make them responsible for the
gantry being defective, and that therefore they
were not liable for damages. Decision of
Scrutton, J. (29 T. L. R. 514), reversed.
Hurlstone v. London Electric Railway,
30 T. L. R. 398— C. A.
III. ACTIONS FOR NEGLIGENCE.
A. Under Lord Campbell's Act.
See also Vol. X. 104. 1G87.
Negligence Causing Death — Death of Child
— Damages — Reasonable Expectation of
Pecuniary Benefit.] — In order to sustain an
action for damages under Ijord Campbell's Act
for the death of a child it is not necessary to
prove actual pecuniary loss in the present, but
only the reasonable expectation of pecuniary
benefit if the child had lived. Taff Vale
Railway v. Jenkins, 82 L. J. K.B. 49; [1913]
A.C. i; 107 L. T. 564; 57 S. J. 27;
29 T. L. R. 19— H.L. (E.)
The respondent's daughter, a girl of sixteen,
then approaching the end of her apprenticeship
to a dressmaker, was killed in an accident for
which the appellants were liable. She was
earning no money, but the evidence shewed
that she might expect to earn 3s. or 4s. a week
as a dressmaker's improver at the end of her
apprenticeship, and later to earn substantial
wages and possibly to establish herself in
business. She also assisted her mother in a
small business. The jury awarded SOL dam-
ages to the father and 25Z. to the mother.
The appellant company appealed, and in the
Court of Appeal, Vaughan Williams, L.J.,
was for dismissing the appeal, Farwell, L.J..
for allowing it, and Kennedy, L.J., for order-
ing a new trial, and the appeal was dismissed.
The House dismissed the appeal. 7b.
Loss of Wife's Services — Expenditure
by Husband in Consequence — Damages.! —
An action is maintainable under the Fatal
Accidents Act, 1846, by a husband to recover
damages for monetary loss incurred by him in
replacing services rendered gratuitously by his
wife, who has been killed through the negli-
gence of the defendants' servants, there being
reasonable ground for believing that such ser-
vices, but for the death, would have been
rendered gratuitously in the future. Berry
V. Humm d Co., 84 L. J. K.B. 918; [191.5]
1 K.B. 627; 31 T. L. R. 198— Scrutton, J.
Osborn v. Gillett (42 L. J. Ex. 53; L. R.
8 Ex. 88) and Clark v. London General
Omnibus Co. (75 L. J. K.B. 907; [1906]
2 K.B. 648) distinguished. Taif Vale Railway
V Jenkiyhs (82 L. J. K.B. 49 ;' [1913] A.C. 1)
applied. lb.
Death by Railway Accident — Time for
Bringing Action,] — An action under Lord
Campbell's Act is a new action, not a suit for
an indemnity for damages or injury sustained
by the deceased person, and therefore the
provision in section 60 of the British Columbia
Consolidated Railway Company's Act, 1896.
that " All actions or suits for indemnity for
any damage or injury sustained by reason of
the tramway or railway, or the works or opera-
tions of the company, shall be commenced
within six months next after the time when
such supposed damage is sustained " does not
apply to proceedings under the Families Com-
pensation Act, the provisions of which are
identical with the English statute — the Fatal
Accidents Act, 1846. Markey v. Tolworth
Joint Hospital District Board (69 L. J. Q.B.
738; [1900] 2 Q.B. 454) disapproved. British
Columbia Electric Railway v. Gentile, 8S1j. J.
P.C. 353; [1914] A.C. 1034; 30 T. L. R. 594
-P.C.
Burden of Proof — Prisoner Burnt in Cell —
No Evidence of Cause of Fire.] — In an action
for dauiagfs by tlie widow and children of a
man who was burnt to death in a lock-up from
a fire which arose from an unascertained cause,
— Held, that the burden of proof of negligence
in the defendants lay upon the plaintiffs, and
liad not been discharged in the absence of
proof that the death of the deceased was in any
way attributable to. or materially contributed
to by, any negligent act or omission on the
part of the defendants. Rule as to burden of
proof laid down by Lord Halsbury, L.C., in"
Wakelin v. London and South -Westerii Rail-
way (56 L. J. P.C. 22; [1912] A.C. 888;
107 L. T. 570; 29 T. L. R. 40— P.C.
1075
NEGLIGENCE— NEW ZEALAND.
1076
Apportionment of Damages Paid into Court
under Fatal Accidents Act, 1846 — Adult and
Minor Plaintiffs.] — Where money is paid into
Court under the P'atal Accidents Act, 1846,
and accepted iu full satisfaction by the plain-
tiffs, one of whom is a minor, the Court has
jurisdiction to apportion the money between
the adult and the minor plaintiff. Davij v.
Gray (48 Ir. L. T. R. 32) followed. Chary v.
London and North-Western Railway, [1915]
2 Ir. R. 210-K.B. D.
B. In Other Cases — Damages.
See also Vol. X. 117, 1688.
Personal Injuries — Obligation not to Aug-
ment Consequences of Injuries.] — A person
who is suffering from the effects of an accident,
in respect of which he is claiming damages, is
not entitled to do everything that an ordinary
person niight reasonably do. He need not
act with perfect knowledge and ideal wisdom,
but he cannot claim damages for such injuries
as are really due to wanton, needless, or care-
less conduct on his own part. If, however,
what he does, reasonably and carefully, aug-
ments the injuries, that may be regarded as a
natural consequence of the accident. Jones v.
Watney, Combe, Reid ,i Co., 28 T. L. R. 399
— Lush, J.
Joint Tortfeasors — Indemnity by One of
Joint Tortfeasors.! — A contractor was em-
ployed by a district council to do certain work
which involved an excavation by the side of a
road. A person having fallen into this excava-
tion and sustained injuries from which he
died, his widow and daughter sued the con-
tractor and district council under Lord Camp-
bell's Act, claiming damages. The jury re-
turned a verdict for the plaintiffs. The district
council thereupon claimed that under the
terms of the contract between them and the
contractor they were entitled to an indemnity
from him : — Held, that it was not against
public policy that the district council should
take an indemnity from the contractor and be
allowed to enforce it against him, and there-
fore a declaration should be made that they
were entitled to such indemnity, which should
include the costs of the action. Newcombe v.
Yewen and Croydon Rural Council, 29 T. L. R.
299— Darling. .J.
NEGOTIABLE
SECURITIES.
Holders for Value.] — H. received from the
defendants bearer bonds to the amount of
20,000/. to use for a specific purpose. Instead
of so using them H. employed them in his
own business. On becoming aware that H. was
financially involved the defendants claimed
repossession of the securities, and they in fact
received back securities of equivalent amount
and of e(]uival(!nt class although not the
identical bonds originally handed by them to
H. Some of these bonds were claimed by the
plaintiffs : — Held, that as the defendants had
a civil claim against H. for conversion, the
defendants took the securities so received back
from H. for value within the principle of the
decision in London and County Banking Co. v.
London and River Plate Bank (57 L. J. Q.B.
601; 21 Q.B. D. 535). The defendants lent
money to H., a billbroker, on bearer securities
to the value of 15,000L That loan having
been called in by the defendants, the latter, in
accordance with the usual practice between
bankers and billbrokers, handed back the
securities to H. in exchange for his cheque for
15,000Z. Ascertaining in the course of the
same day that H. was financially involved and
that his cheque would not likely be met at the
end of the day, they claimed the return by H.
of the securities, and they in fact received
bearer securities to the value of 15,0O0L, but
not the identical securities they had returned
to H. in the morning, although this was not
known at the time. On receiving these docu-
ments the defendants returned to H. his
cheque for 15,O00L : — Held, that as both
parties knew and treated the cheque so re-
turned by the defendants to be worthless, the
defendants were not, as regards the securities
for 15,000/. received back from H., holders for
value. Lloyds Bank v. Swiss Bankverein,
107 L. T. 309 ; 17 Com. Cas. 280; 56 S. J. 688;
28 T. L. R. 501--Hamilton, J.
See S. C. in C.A., ante, Bakker.
NEWFOUNDLAND.
See COLONY.
NEW SOUTH WALES.
See COLONY.
NEWSPAPER.
Right to Name.] — See Trade.
Covenant not to Comment on Particular
Company.] — See Neville v. Dominion of
Canada Netcs Co., ante, col. 339.
NEW ZEALAND.
See COLONY.
NOISE.
See NUISANCE.
1077
NOISE— NUISANCE.
1078
NONCONFORMIST
MINISTER.
See ECCLESIASTICAL LAW.
NOTARY.
Appointment — Faculty — Opposition —
Clerk who has Served his Articles.] — An
articled clerk who has served his articles, and
is entitled to be admitted to practise as a
notary, has the same right of opposition to
an application for the appointment of an
additional notary in a particular district as
a notary who has been actually admitted.
Warwick v. Cochrane. Same v. Belk,
32 T. L. R. 165— Master of Faculties.
NOVA SCOTIA.
See COLONY.
NUISANCE.
A. What Amounts to.
1. Noxious or Offensive Trades, Works, or
Things.
a. Generally, 1077.
b. Works Constructed under Statutory
Powers, 1080.
2. On Highwaijs, 1081.
B. Proceedings in Respect of, 1083.
A. WHAT AMOUNTS TO.
1. Noxious or Offensive Trades, Works, or
Things.
a. Generally.
See also Vol. X. 186, 1695.
Colliery — Coal Dust — Easement — Lease —
Licence to Carry on Business but not to
Commit Nuisance — Adjoining Property of
Lessor Affected.] — Permission to carry on a
business does not imply permission to carry
it on in such a manner as to create a nuisance,
unless it is proved either that the business
authorised cannot possibly be carried on
without committing a nuisance, or that some
particular method of carrying it on has been
authorised which necessarily results in a
nuisance being committed ; and if a nuisance
has been committed it is no defence to say
that the business was carried on in a reason-
able manner, in the ordinary way in which
such operations are usually carried on, without
negligence. Pwllbach Colliery Co. v. Wood-
man, 84 L. J. K.B. 874; [1915] A.C. 684;
113 L. T. 10; 31 T. L. R. 271— H.L. (E.)
The appellant company occupied land under
a lease by which they were licensed to carry
on the industry and trade of miners on the
demised land. The respondent occupied
adjoining land under a lease of later date from
the same lessor " subject to all rights and
easements belonging to any adjoining or
neighbouring property." The respondent
erected buildings on his land, which he used
in his trade as a butcher. The appellants
afterwards erected buildings on their land,
which they used for breaking and screening
coal. The respondent complained that coal
dust blew from the appellants' buildings and
created a nuisance. In answer to questions
a jury found that the coal dust was a nuisance
to the respondent, but that the appellants'
operations were carried on in a reasonable
manner, and in the way in which such
operations were usually carried on in the
district, and that there was no negligence on
their part : — Held, that the appellants' lease
did not authorise them to carry on their
business in such a way as to create a nuisance,
and that a claim to be entitled to allow their
coal dust to be blown anywhere over the
neighbouring land was too indefinite to be
an easement. lb.
Hall V. Lund (32 L. J. Ex. 113; 1 H. & C.
676), Lyttelton Times Co. v. Warners
(76 L. J. P.C. 100; [1907] A.C. 476), and
Jones V. Pritchard (77 L. J. Ch. 405 ; [1908]
1 Ch. 630), distinguished. lb.
Decision of the Court of Appeal (111 L. T.
169) affirmed. lb.
Fumes from Gasworks — Injunction or
Damages — Injury to Trees — No House on
Area Affected.] — The owner and occupier of a
house and park adjoining a corporation's gas-
works brought an action claiming an injunction
to restrain the corporation from carrying on
their works so as to cause a nuisance to his
property. It appeared from the evidence that
fumes and smoke from the gasworks were
carried by the prevailing wind for a distance of
one hundred to two hundred yards over the
plaintiff's property, and that they had injuri-
ously affected a plantation of trees adjoining
the gasworks to such an extent that the tops
of the trees were dying, while in some cases
the trees were dead. There was no house on
the part of the plaintiff's property affected : —
Held, that the fumes were discharged on to
the plaintiff's property in such a way as to
be a nuisance causing serious growing and
permanent injury to the plaintiff's property,
and that it was a case where the proper remedy
was an injunction and not damages. Per
Buckley, L.J. : If the owner of property is so
substantially injured in his reasonable enjoy-
ment of it that he sustains what is equivalent
to a legal nuisance, he is entitled to an injunc-
tion to stop it, although the property affected
is only a garden or park and has no house or
structure upon it. Sturges v. Bridgman
(48 L. J. Ch. 785; 11 Ch. D. 852) distin-
guished. Wood V. Conway Corporation,
83 L. J. Ch. 498; [1914] 2 Ch. 47; 110 L. T.
917; 78 J. P. 249; 12 L. G. R. 571— C.A.
1079
NUISANCE.
1080
Market Garden — Manure Heap — Flies.] —
The occupiers of a dwelling house adjoining a
uiarket garden, where intensive culture was
practised, suffered physical inconvenience from
the smell and from flies bred in a large heap
of manure. The locality was one where market
gardening was carried on, but the collection
of manure in question was in excess of what
might be expected in the locality : — Held, that
the manure heap was a serious inconvenience
and interference with the comfort of the
occupiers of the dwelling house according to
notions prevalent among reasonable English
men and women, and that it amounted to a
nuisance in law. Bland v. Yates, 58 S. J. 612
— Warrington, J.
Noise — Annual Feast.] — On the evidence,
held, that the annual feast held on W. Moor
in 1912, and as it was likely to be conducted in
the future, fell short of being an actionable
nuisance. Bedford v. Leeds Corporatior^,
77 J. P. 430— Sargant, J.
Building Operations — Pile Driving at
Night.] — In conducting building operations it
is not reasonable and proper to do pile driving
by night so that residents in an adjoining
building cannot sleep, and such conduct is
liat)le to be restrained by injunction. De Key-
set's Royal Hotel v. Spicer, 30 T. L. E. 257
— Warrington, J.
Exhibition — Side Shows.] — Where the
noise from side shows at an exhibition inter-
fered with the comfortable occupation of the
plaintiff's house and injuriously affected the
health of his family, — Held, that the noise
amounted to a nuisance, and that the plaintiff
was entitled to an injunction and damages.
Becker v. Earl's Court, Lim., 56 S. J. 73—
Eve, J.
Singing and Dancing at Night — Reason-
able User of Premises.] — Among the noises
which, if they do not cause substantial dis-
comfort, residents in large industrial cities may
have to put up with, is a certain amount of
noise which accompanies and is incident to the
reasonable recreation of a crowded population.
The question in every such case is whether
such noises amount to a sensible or substantial
interference with the comfort of neighbouring
dwellers, according to ordinary common sense
standards. New Imperial and Windsor Hotel
Co. V. Johnson. [1912] 1 Ir. E. 327— Barton, J.
Offensive Smell — Fried-fish Shop — Physical
Discomfort to Neighbours — Injunction.] —
Where it is proved that the odour from a fried-
fish shop escapes so as materially to interfere
with the ordinary comfort of an adjoining
occupier and his family, a sufficient case of
nuisance is made out in law and an injunction
will be granted. Tod-Heatley v. Benham
(58 L. J. Ch. 83: 40 Ch. d! 80) followed.
Adams v. Ursell, 82 L. J. Ch. 157; [1913]
1 Ch. 269; 108 L. T. 292; 57 S. J. 227—
Swinfen Eady, J.
Fish-Guano Works.] — Injunction granted
restraining the defendants from so using their
fish-guano factory as to cause a public nuisance
by the giving off of offensive and noxious
smells. Att.-Gen. v. Plymouth Fish-Guano
and Oil Co., 76 J. P. 19— Parker, J.
Sewage Farm.] — The plaintiffs, who re-
spectively owned and occupied a dwelling
house, obtained an injunction against the
defendants, owners of a sewage farm about
800 yards south-west of the plaintiffs' premises,
restraining the defendants from conducting
their sewage farm so as to cause offensive
smells and vapours in the plaintiffs' premises.
Bainbridge v. Chertsey Urban Council, 8i L. J.
Ch. 626; 79 J. P. 134; 13 L. G. E. 935—
Sargant, J.
b. Works Constructed under Statutory Powers.
See also Vol. X. 208, 1702.
High-pressure Water Mains under Surface
of Roadway — Escape of Water — Damage to
Electric Cables — Statutory Powers — Construc-
tion of Statute — Two Statutes to be Read
Together as One.] — The defendants laid high-
pressure water mains under certain streets,
and subsequently the plaintiffs laid electric
cables under the same streets, both acting
under statutory powers. Four of the defen-
dants' mains, without any negligence on the
part of the defendants, burst and injured the
plaintiffs' cables : — Held, that the defendants
were liable for the damage done to the plain-
tiffs' cables by the bursting of their mains;
for the doctrine of Rylands v. Fletcher
(37 L. J. Ex. 161; L. E. 3 H.L. 330) is not
limited to the case of neighbouring landowners
or occupiers of neighbouring closes, but is
applicable as between companies which have
independently obtained licences to lay appara-
tus for their undertakings under the surface
of the same street. Midwood & Co. v. Man-
chester Corporation (74 L. J. K.B. 884; [1905]
2 K.B. 597) followed. Charing Cross, West
End, and City Electricity Supply Co. v.
London Hydraulic Power Co., 83 L. J. K.B.
1352; [1914] 3 K.B. 772; 111 L. T. 198;
78 J. P. 305 ; 12 L. G. E. 807 ; 58 S. J. 577 ;
30 T. L. E. 441— C.A. Affirming, 83 L. J.
K.B. 116; [1913] 3 K.B. 442— Scrutton, J.
Two of the four mains had been laid under
a private Act which did not contain a clause
providing that nothing in the Act should
exempt the defendants from liability for
nuisance. The other two were laid under a
later Act which did contain such a clause, and
further provided that the two Acts should be
read together as one Act : — Held, that, as the
Acts were to be read together, the privilege
which the defendants would have enjoyed
under the earlier Act of not being liable as for
a nuisance in respect of the two first-mentioned
mains was taken away, and consequently the
defendants were without statutory protection
in respect of all four mains. 7b.
Electric Cables and Gas Mains Laid in
Same Street — Leakage of Gas into Electric
Chamber — Explosion — Injury to Passer-by —
Non-liability of Electric Undertakers.] — A
local authority, authorised by statute to supply
electricity within their district, placed under
the pavement of a highway a brick chamber,
1081
NUISANCE.
1082
inside of which was a box through which wires
passed, but the box did not occupy the whole
space within the brick chamber. The wires,
or some of them, were connected by fuses in
the box. Owing to an unusually strong electric
current a fuse might occasionally emit a spark
which would escape through the cover of the
box into the unoccupied space in the brick
chamber. Gas from an adjacent gas main not
belonging to the local authority had leaked
through the soil and thence into the unoccupied
space in the brick chamber and there collected.
A spark emitted from a fuse in the inner box
exploded the gas, with the result that a
passer-by on the pavement was injured by the
explosion. In an action brought by him
against the local authority to recover damages
for personal injuries the jury, in answer to
questions left to them by consent of both
parties, found that the chamber did not con-
stitute a nuisance, and that the local authority
had not been guilty of negligence : — Held,
that the defendant local authority were
entitled to judgment. The gas had escaped
from a main in or over which they had no
interest or control. They were incapable of
excluding it from their apparatus. They were
not bound, because they kept an apparatus
which might become dangerous if ignited by
being combined with something else, to com-
pensate any one hurt by its being ignited with-
out possibility of their preventing its ignition.
Goodbody v. Poplar Borougli Council, 84 L. J.
K.B. 1230; 79 J. P. 218; 13 L. G. E. 166— D.
There was nothing in the case to extend the
principle laid down in Rylands v. Fletcher
(37 L. J. Ex. 161; L. E. 3 H.L. 330) as to
not allowing mischief to escape to the land of
another, to keeping the mischief on other
persons' land from their own. In the circum-
stances the case was distinguishable from the
later decisions of Midicood & Co. v. Man-
chester Corporation (74 L. J. K.B. 884; [1905]
2 K.B. 597) and Charing Cross, West End,
and City Electric Supply Go. v. London
Hydraulic Power Co. (83 L. J. K.B. 1352;
[1913] 3 K.B. 442), because it was not the
defendants' own gas which escaped. lb.
2. Ox Highways.
See also Vol. X. 214, 1706.
Area Adjoining Highway — Defective Rail-
ings — Liability of Owner in Possession —
Knowledge of Nuisance — Permission of Con-
tinuance of Nuisance.] — The defendant was
the owner in possession of an empty house
with an area adjoining a public street. The
area was fenced off from the street by railings,
but one of the rails had been removed by tres-
passers, leaving a gap in the railings of a
width of ten and three-quarter inches. The
plaintiff, a child of the age of three years
and nine months, while playing in the street,
passed through the gap and was clambering
along a ledge inside the railings when he fell
into the area and was injured. In an action
to recover damages the jury found that the
area was a nuisance to persons using the
highway, but that the defendant did not at
the time of the accident know that the rail
had been removed, neither had such time
elapsed that he would have known it if he
had used reasonable care, and that he had
used reasonable care to prevent his premises
becoming dangerous to persons using the
highway : — Held, that the action failed on
the ground that the defendant neither created
the nuisance nor with knowledge of its exist-
ence permitted its continuance. Per Fletcher
Moulton, L.J., and Farwell, L.J.— The
action also failed on the ground that the injury
was not the direct result of the nuisance.
Barker v. Herbert, 80 L. J. K.B. 1329; [1911]
2 K.B. 633; 105 L. T. 349; 75 J. P. 481;
9 L. G. E. 1083; 27 T. L. E. 488— C. A.
Quarry Adjoining Road— Land Dug Out —
Collapse of Fence and Road — Duty of Occu-
pier to Restore — Remedy of Local Authority.]
— There is a common law obligation on the
possessor of land that has been subjected to
excavation to keep it fenced off from any public
place or right of way, whether the excavation
was made before or after his possession, and
whether he is or is not liable to his landlord,
if he has a landlord. .Att.-Gen. v. Roe,
84 L. J. Ch. 322 ; [1915] 1 Ch. 235 ; 112 L. T.
581; 79 J. P. 263; 13 L. G. E. 335— Sargant,
J .
The defendant owned and occupied land
which was in fact a worked-out quarry, and
which immediately adjoined a public highway
vested in an urban district council and repair-
able by the inhabitants at large, the excavation
having been made in 1865 by a prior owner
of the land in order to quarry for limestone,
the surfaces of the road and land having up
to that time been on the same level. The
excavator, in order to protect the persons using
the road from danger and the road itself from
obstruction, had built alongside the road a
wall the bottom of which rested on a ledge of
limestone, left ungotten for the purpose, which
served as a retaining wall for the subsoil of
the road and as a fence wall above its surface.
In 1913 a part of the wall collapsed and fell
into the quarry, and in consequence a con-
siderable part of the subsoil of the road and
of its surface fell in : — Held, that in an action
by the Attorney-General at the relation of the
council and the council as plaintiffs a man-
datory order should be made on the defendant
to abate the nuisance by restoring the road to
its condition prior to the subsidence, and by
rebuilding the wall or providing some other
reasonable fence between the road and the
quarry. Greenwell v. Loxo Beechburn Colliery
Co. (66 L. J. Q.B. 643; [1897] 2 Q.B. 165)
distinguished. lb.
Unlawful Erection in — Obstruction of View
Special Damage.] — Where a nuisance is
created by the erection of an unauthorised
structure in a highway, and special damage is
thereby caused to a person by reason of the
view from his house being obstructed, he is
entitled to recover damages from the persons
creating the nuisance. Campbell v. Padding-
ton Borough Council, 80 Tj. J. K.B. 739;
[1911] 1 K.B. 869; 104 L. T. 394; 75 J. P
277 ; 9 L. G. R. 387 ; 27 T. L. R. 232— D.
1083
NUISANCE— PAKLIAMENT.
1084
B. PROCEEDINGS IN RESPECT OF.
See also Vol. X. 225, 1707.
Action by Reversioners — Injury to Rever-
sion— Occupier.] — A nuisance of noise and
smell from a garage is not a "permanent"
injury to the reversion within the definition
given by Parker, J., in Jones v. Llanrwst
Urban Council (80 L. J. Ch. 145; [1911]
1 Ch. 393), and accordingly an action brought
by the reversioners alone is not maintainable.
White V. London General Omnibus Co.,
58 S. J. 339— Sargant, J.
NULLITY OF MARRIAGE.
See HUSBAND AND WIFE.
OFFENSIVE TRADE.
See LOCAL GOVERNMENT; NUISANCE.
OLD AGE PENSION.
See PENSION.
ONTARIO.
See COLONY.
ORDER AND
DISPOSITION.
See BANKRUPTCY.
ORDERS.
Of Afniiation.] — See Bastard.
Of High Court.]— See Practice.
Of Justices.] — See Justice of the Peace.
Of Reference.] — See Arbitration.
Of Removal.] — See Poor Law.
OVERSEER.
See POOR LAW.
PARENT AND CHILD.
See INFANT.
PARISH.
See LOCAL GOVERNMENT ; POOR LAW.
PARISH COUNCIL.
Sec LOCAL GOVERNMENT.
PARLIAMENT.
1. Parliamentary Deposits, 1084.
2. Peers and Peerages, 1085.
3. Election of Members, 1086.
4. Registration of Voters — See Election
Law.
5. Appeals to House of Lords — See Appeals.
1. PARLIAMENTARY DEPOSITS.
See also Vol. X. 296, 1717.
Tramway Company — Abandonment of
Undertaking — Compensation — Claim in Re-
spect of Breach of Covenant to Construct an
Embankment.] — The appellant tramroad com-
pany, in contemplation of an application to
Parliament for an Act to extend their tram-
roads, entered into an agreement with the
respondent whereby they agreed (inter alia)
that they would use their best endeavours
to obtain power to construct, and in the event
of their obtaining such power would construct,
and afterwards maintain, a solid embankment
on a part of certain mai'sh land of the respon-
dent for the purpose of carrying one of their
tramroads, such embankment to be formed so
as to be sufficient to prevent the respondent's
marsh land being inundated by certain tidal
waters. An Act was accordingly obtained
which authorised the making of (inter alia)
such tramroad with all necessary embank-
ments. The Act contained the usual provision
with regard to the money deposited in respect
of the application to Parliament — namely,
that, if the company should make default in
opening the tramroads, then the deposit fund
should be applied towards compensating any
landowners or other persons whose property
should have been interfered with or otherwise
rendered less valuable by the commencement,
construction, or abandonment of the tramroads
or any part thereof. The respondent conveyed
to the company the right to construct and
maintain the embankment on his land, and the
1085
PARLIAMENT.
1086
company covenanted to construct, execute, and
perform the works, inatters, and things speci-
fied in the agreement. The company subse-
quently obtained an abandonment Act, and
the proposed embankment was never made : —
Held, that, inasmuch as the breach of the
covenant to make the embankment was not
the necessary result of the abandonment of the
tra inroads, the respondent was not entitled
to claim against the deposit fund in respect of
the diminution in the value of his land
caused by the non-construction of the embank-
ment. Ruthin and Cerrig-y-Druidion Railway
Act, In re (06 L. J. Ch. 30: 32 Ch. D. 438),
applied. Soufliport and Lytham Tramroad
Act. In re: Hesketli, ex parte, 80 L. J. Ch.
137: [1911] 1 Ch. 120: 104 L. T. 1-54— C. A.
Claim in Respect of Abandonment of
Street Widening — Statutory Obligation.] — A
tramway company was authorised liv its Act
of Parliament to construct a certain tramway
passing round the junction of two roads, and
to effect a widening of the roads at their junc-
tion. The applicant was the owner of a
property consisting of two adjacent shops,
forming a quadrangular block at the junction
of the two roads and fronting on both of them.
He sold a triangular strip of it to the com-
pany, whereby his remaining property was cut
off from all access to one of the roads until
the widening should be carried out. There
was no covenant by the company to widen.
The undertaking was abandoned, the tramway
was not constructed, nor was the widening
effected. Section 81 of the Act provided that
for the protection of a district council, and
unless otherwise agreed between the council
and the company, the company should within
a limited time complete the tramway and
concurrently with its construction, and before
opening it for traffic, carry out the widening
to the satisfaction of the council. There was
no agreement between the council and the
company varying the obligations of the section.
Upon application by the owner for compensa-
tion out of deposited moneys as a landowner
whose property had been rendered less valuable
by the " abandonment of the tramways or any
portion thereof " within section 67 of the Act,
— Held, that section 81 imposed a statutory
obligation upon the company to effect the
widening ; that it had not been carried out
owing to the abandonment of the undertaking :
and that if the applicant's property had
thereby been rendered less valuable he was
entitled to compensation. West Yorkshire
Tramivays Bill, In re, 82 L. J. Ch. 98; [1913]
1 Ch. 170; 108 L. T. 18; 11 L. G. E. 78;
57 S. J. Ill: 29 T. L. R. 115— C.A.
2. PEERS AND PEERAGES.
See also Vol. X. 304, 1718.
Peerage Claim — Assembly of 1290 — Whether
a Parliament Founding a ClaimJ — The Com-
rnittec of Privileges reported (Tjord Hylton and
Ijord Atkinson dissenting) that the Assembly
held at Westminster on May 29. 1290, which
was summoned by Edward 1, and was an
assembly of barons and bishops only, was not
a fuUv constituted Parliament so as to found
a claim to a hereditary peerage by proof that
an ancestor of the claimant had received a
writ of summons to the Assembly and had
taken his seat therein. Saint John Barony,
[1915] A.C. 282 ; 30 T. L. R. 640— H.L.
3. ELECTION OF MEMBERS.
Disqualification of Member for Sitting and
Voting — Contract with Secretary of State for
or on Account of Public Service.! — The
" public service " includes any service of the
Crown anywhere. Therefore where a member
of Parliament was a partner in a firm which
had made contracts with the Secretary of State
for India in Council for the service of the
Crown in India, which contracts were to be
paid for out of the revenues of India, he was
held disqualified from sitting and voting in
the House of Commons, as having " directly
or indirectly " undertaken a contract " for or
on account of the public service " within the
meaning of section 1 of the House of Commons
(Disqualification) Act, 1782. Samuel's (Sir
Stuart) Seat, In re, 82 L. J. P.C. 106; [1913]
A.C. 514; 108 L. T. 696: 29 T. L. R. 429—
P.C.
Contract with a Person or Persons for or
on Account of the Public Service — Contract
with Secretary of State for India.] — A mem-
ber of the House of Commons was a partner
in a firm which made a contract with the
Secretary of State for India in Council for
purchasing silver for the Indian currency : —
Held, that he had thereby entered into a con-
tract with a person or persons for or on
account of the public service within section 1
of the House of Commons (Disqualification K
Act, 1782, and was therefore disabled for
sitting and voting in the House of Commons.
Forbes v. Samuel, 82 L. J. K.B. 1135; [1913]
3 K.B. 706; 109 L. T. 599; 29 T. L. R. 544—
Scrutton. -J.
Action for Penalties — Necessity for Affidavit
from Common Informer — Prior Writ for Same
Penalty — Wrong Statute Founded on.1 — The
plaintiff, as a common informer, claimed
penalties from the defendant for having sat
and voted in the House of Commons when
incapacitated for so doing by reason of his
interest in a Government contract, contrary to
the provisions of the House of Commons (Dis-
qualification) Act, 1782. Two writs by other
common informers against the defendant for
penalties for the same offence were issued prior
to the writ in the plaintiff's action : — Held,
first, that it was not necessary for the main-
tenance of the action that the plaintiff should
first have made oath under section 3 of
21 Jac. 1. c. 4 that he believed in his con-
science that the offence was committed by the
defendant within a year before action brought ;
but secondly, that the action failed inasmuch
as it was barred not only by the fact of the
prior issue of the other writs for penalties,
but also by the fact that the plaintiff had
proceeded under the House of Commons (Dis-
qualification) Act, 1782, instead of under the
House of Commons (Disqualification) Act,
1801. 7b.
1087
PAELIAMENT— PAETITION.
1088
Wrong Statute Founded on — Leave to
Amend.] — An action was brought by a com-
mon informer claiming penalties from the
defendant for having sat and voted in Parlia-
ment when incapacitated for so doing. The
Judge having held that the plaintiff had
founded his action on the wrong statute, the
plaintiff asked leave to amend by pleading the
proper statute -.—Held, that in the circum-
stances leave to amend must be refused.
Burnett v. Samuel, 109 L. T. 630; 29 T. L. K.
835— Scrutton. J.
Amendment.] — A member of the House
of Commons was partner in a firm which made
a contract with the Secretary of State for
India in Council for purchasing silver for the
Indian currency. A common informer brought
an action against the member for penalties,
and alleged in the statement of claim that the
defendant was elected to Parliament on
January 10, 1910. and that he voted on various
dates in 1912. In fact Parliament was dis-
solved on January 10, 1910, and was again
dissolved in December, 1910, and the defen-
dant was elected at a general election in
December, 1910 : — Held, that the defendant
had entered into a contract for or on account of
the public service within section 1 of the
House of Commons (Disqualification) Act,
1782, that the plaintiff was entitled to an
amendment of the date alleged in the state-
ment of claim as the date of the defendant's
election, and that therefore the plaintiff was
entitled to recover the penalties sued for.
Forbes v. Samuel (82 L. J. K.B. 1185: [1913]
3 K.B. 706) followed. Bird v. Samuel,
30 T. L. E. 323— Rowlatt. J.
PARLIAMENTARY
DEPOSIT.
See PARLIAMENT.
PAROL EVIDENCE.
See EVIDENCE.
PARSON.
See ECCLESIASTICAL LAW.
PARTICULARS.
See PRACTICE.
In Patent Cases.] — See Patent.
Of Sale.l — 5ee Vendor .\nd Purchaser.
PARTIES.
See PRACTICE.
PARTITION.
See also Vol. X. 318, 1720.
Jurisdiction — Joint Tenancy or Tenancy in
Common — Indefeasible Interest in One Moiety
of Estate — Defeasible Interest in Other Moiety
— Subsisting Trusts.] — The existence of a
joint tenancy or a tenancy in common is
essential to the jurisdiction of the Court for the
purposes of an order for partition. A person
who is entitled, subject to a term of one
thousand years, to an estate in fee-simple, but
is liable as to one moiety to have his estate
divested by the attaining of a vested interest
by another person, is not entitled to succeed
in an action for partition. The Court has no
jurisdiction to order partition of an estate
where there are subsisting trusts for manage-
ment vested in trustees. Taylor v. Grange
(49 L. J. Ch. 24, 794 ; 13 Ch. D. 223 ; 15 Ch. D.
165) applied. Dodd \. Cattell, 83 L. J. Ch.
721; [1914] 2 Ch. 1— Warrington, J.
Request for Sale — Infant — Sale for Infant's
Benefit — Conversion.] — An infant's share of
the proceeds of sale of real estate, sold by the
Court in a partition action, though sold at his
request and for his benefit, is not converted.
Foster v. Foster (45 L. J. Ch. 301; 1 Ch. D.
588) and Barker, In re (50 L. J. Ch. 334;
17 Ch. D. 241, 243), applied. Dicta of
Jessel, M.R., in Wallace v. Greenwood
(50 L. J. Ch. 289; 16 Ch. D. 362, 365, 366),
not followed. Hopkinson v. Richardson,
82 L. J. Ch. 211; [1913] 1 Ch. 284; 108 L. T.
501; 57 S. J. 265— Swinfen Eady, J.
Order for Sale — Sale not Taking Place —
Conversion — Shares of Persons Sui Juris —
Disability.^ — Where in a partition action an
order for sale is made, and remains in force,
but the sale does not take place, the order
operates as a conversion in respect of the
shares of those partitioners who are sui juris
at the date of the order, but not in respect of
the shares of those who arc under disability.
Herbert v. Herbert, 81 L. J. Ch. 733; [1912]
2 Ch. 268; 107 L. T. 491— Swinfen Eady, J.
Barker, In re (50 L. J. Ch. 334 ; 17 Ch. D.
241), Pickard, In re; Turner v. Nicholson
(20 L. J. N.C. 124; 53 L. T. 293; [1885]
W. N. 137), Arnold v. Dixon (L. R. 19 Eq.
113), Mordaunt v. Benwell (51 L. J. Ch. 247;
19 Ch. D. 302), Dodson, In re ; Yates v. Morton
(77 L. J. Ch. 830; [1908] 2 Ch. 638), Hyett v.
Mekin (53 L. J. Ch. 241; 25 Ch. D. 735), and
Fauntleroy v. Beebe (80 L. J. Ch. 654; [1911]
2 Ch. 257) explained and followed. lb.
Married Woman — No Request for Sale —
Death of Husband.] — The share of a married
woman originally unconverted for want of a
formal request for sale under section 6 of the
1089
PARTITION— PAETNER SHIP.
1090
Partition Act, 1876, is not subsequently con-
verted by the mere fact of her becoming
discovert. 76.
PARTNERSHIP.
I. The Contract of Partnership, 1089.
II. Eights and Obligations of Partners
INTER SE, 1089.
III. Eights and Obligations of Partners
AND Third Parties, 1090.
IV. Death op Partner, 1093.
V. Dissolution of Partnership, 1093.
VI. Winding-up of Limited Partnership,
1095.
I. THE CONTKACT OF PAETNEESHIP.
See also Vol. X. 366, 1722.
Firm Name of Testator Used by Executors
— Whether Executors are Partners.] — Execu-
tors carrying on their testator's business under
the powers of his will and in his own firm
name are not partners within the meaning of
section 1 of the Partnership Act, 1890, and
cannot be adjudicated bankrupt as partners
under section 115 of the Bankruptcy Act, 1883,
but may be individually proceeded against as
joint debtors. Fisher £ Sons, In re, 81 L. J
K.B. 1246; [1912] 2 K.B. 491; 106 L. T. 814;
19 Manson, 332; 56 S. J. 553— Phillimore, J.
"Trading" Partnership — Cinematograph
Entertainment.] — A partnership formed for
the purpose of running a cinematograph enter-
tainment is not a "trading" partnership
within the meaning of the rule that a member
of a trading partnership has ostensible autho-
rity to borrow money for the purposes of the
partnership so as to bind the other partners,
even though he is, as between himself and his
co-partners, prohibited from borrowing money
so as to bind the partnership. Per Lush, J. :
A trading business is one which involves the
purchase and the sale of goods. Higgins v.
Beauchamp, 84 L. J. K.B. 631; [1914] 3 K.B
1192 ; 111 L. T. 1103 ; 30 T. L. E. 687— D.
Test of Partnership.]— In order to determine
whether there is or is not a partnership
between persons the whole of the agreement
between them must be looked at in order to
see what is the intention of the parties,
together with the surrounding circumstances
at the time when the agreement was entered
into. Subsequent conduct can only be looked
at in order to shew that the agreement has
been varied or a new agreement made.
Beard d Co., In re; Trustee, ex parte,
[1915] H. B. E. 191-C.A.
II. EIGHTS AND OBLIGATIONS OF
PARTNEES INTEE SE.
See also Vol. X. 407, 1723.
Betting Business — Account.] — The plaintiff
and defendant had been in partnership as
bookmakers and commission agents, the capital
having been contributed by them in equal
shares, and the plaintiff took proceedings
against the defendant for an account of the
partnership dealings -.—Held, that the plaintiff
I could recover any balance of his capital which
[ had not been applied in payment of bets, and
that he was entitled to an account, it being
left open to the defendant to object to any
particular items and to object that anything in
his hands consisted of profits. Keen v. Price,
83 L. J. Ch. 865; [1914] 2 Ch. 98; 111 L T
204 ; 58 S. J. 495 ; 30 T. L. E. 494— Sargant, J.
See also Brookman v. Mather, 29 T. L. E.
276 — Avory, J.
Illegal Sale of Partnership Property — Re-
purchase from Bona Fide Purchaser for Value
without Notice — Fiduciary Relation — Lia-
bility to Account.] — A partner who has im-
properly, and without the knowledge of his
partner, sold partnership property to a bona
fide purchaser for value without notice, and
has afterwards re-purchased it from him,
stands in a fiduciary relation to his partner,
and cannot take advantage of the rule which
protects a purchaser with notice taking from a
purchaser without notice, but is liable to
account for profits made by subsequent deal-
ings with the property. Knox v. Gye
(42 L. J. Ch. 234; L. E. 5 H.L. 656) and
Piddocke v. Burt (63 L. J. Ch. 246; [1894]
1 Ch. 343) distinguished. Gordon v. Holland,
82 L. J. P.C. 81 ; 108 L. T. 385— P. C.
Business Premises the Property of One
Partner — No Special Provision as to Tenancy
— Partnership to Pay all Rent— Tenancy Im-
plied— Continuance of Partnership. ^ — Where
business premises the property of one partner
are occupied by the partnership and all the
rent is paid out of the partnership account,
but there is no provision as to the duration of
the tenancy, the right inference is that the
tenancy is a tenancy during the continuance
of the partnership. Pocock v. Carter, 81 L. J
Ch. 391 : [1912] 1 Ch. 663 ; 106 L. T. 423 ;
56 S. J. 362— Neville, J.
in. EIGHTS AND OBLIGATIONS OF
PAETNEES AND THIED PAETIES.
See also Vol. X. 507, 1727.
Authority of Partner to Borrow Money for
Partnership Purposes.]— The rule of law that
each member of a trading firm has implied
authority to borrow money for partnership pur-
poses on the credit of the firm does not apply
to a partnership firm of cinematograph-theatre
proprietors. The partnership deed of a firm
of cinematograph-theatre proprietors provided
that no partner should without the consent of
the other partners contract any debt on account
of the partnership or in any manner pledge
its credit except in the usual and regular
course of business. The managing partner
borrowed moneys from the plaintiff, ostensibly
for partnership purposes, but with the inten-
tion of misappropriating them, which he did.
The plaintiff sued the defendant, a partner,
for the moneys lent to the firm : — Held, that
the defendant was not liable. Higgins v.
35
1091
PAKTNEESHIP.
1092
Beauchamp, 84 L. J. K.B. 631; [1914] 3 K.B.
119-2; 111 L. T. 1103; 30 T. L. R. 687— D.
The defendants and H. had dealings on joint
account in various bearer securities. For the
purposes of the joint account the defendants
entrusted H. with bearer securities to the
amount of 20,000?. for the purpose of being
deposited by him as margin in respect of a
loan to be borrowed from a specified lender.
H. did not borrow from that lender and he had
the 20,000Z. margins in his possession on
September 15, 1911, on which day H. became
indebted to the plaintiffs. On subsequently •
discovering the existence of the joint-account
transaction between H. and the defendants the
plaintiffs sued the defendants in debt on the
ground that they were partners with H. : —
Held, that the claim failed, inasmuch as H.
had no authority to act for the joint adventure
by borrowing from any one except the specified
lender, and the plaintiffs did not at the
material date know or believe H. to be a
partner with the defendants. Watteau v.
Fenicick ([1893] 1 Q.B. 346) distinguished.
Lloyds Bank v. Swiss Bankverein, 107 L. T.
309; 17 Com. Cas. 280; 56 S. J. 688;
28 T. L. R. 501— Hamilton, J.
See S. C. in C.A., ante, Banker.
Liability of Partnership for Money Received
"in the course of its business."] — A partner
in a firm of solicitors, who acted as secretary
of a mining and exploring company, received
and misapplied certain of the company's
funds : — Held, that the firm were not liable
under the Partnership Act, 1890, s. 11 (b), in
respect that the moneys in question had not
been received by the firm " in the course of its
business." New Miniyjg and Exploring Syjidi-
cate V. Chalmers d- Hunter, [1912] S. C. 126
— Ct. of Sess.
Joint Adventure — Sale of Goods — Coals —
Substituted Supplies.] — The plaintiff and de-
fendants entered into an arrangement that
they would endeavour to get the business of
supplying coal to the Austrian Navy for 1911
on a basis of joint account as to profit and
loss. The plaintiff put in a tender for 20,000
tons of certain Welsh coal, which was accepted.
Subsequently it became obvious that the
parties would suffer a heavy loss, and it was
agreed that the plaintiff should cut his loss for
a payment of 1,000/., and that if a reduction
in the loss was effected by the Austrian
Admiralty giving permission to supply other
coils which could be got at a cheaper rate, the
l.OOOL was to be reduced by half the profit
effected. The defendants supplied 20.000 tons
of coal to the Austrian Admiralty at a lower
pric«, which was supplied to them under a con-
tract made by them for the supply of their
own coaling depot : — Held, that the plaintiff
was entitled to an account on the terms that
the defendants could not bring into the account
the coal at a higher price than that at which
they actually purchased it, on the principle
that one co-adventurer cannot sell his own
property to the adventure, so as to make a
profit himself, unless before doing so he has
made the fullest disclosure to his co-adventurer.
Kuhlirz v. Lambert, 108 L. T. 565; 18 Com.
Cas. 217— Scrutton, J.
Goods Purchased by One Adventurer —
Bills of Exchange.] — Where persons enter
into an agreement constituting a partnership
limited to a joint trading adventure and goods
are purchased, ostensibly by an individual
adventurer but really for the purpose of the
joint adventure, the adventurers are liable as
partners ; but there is no such responsibility
for goods purchased upon the credit of an
individual adventurer, though they are after-
wards brought into stock as his contribution
to the joint adventure. Goidhwaite v. Duck-
worth (12 East, 421) followed and applied.
Saville v. Robertson (4 Term Rep. 720l dis-
tinguished. Karmali Abdulla Allarakhia v.
Vara Karimji Jiicanji. L. R. 42 Ind. App. 48
-P.C.
Firm Name of Testator Used by Executors
— Receiving Order against Firm — Whether
Executors are Partners.] — Executors carrying
on their testator's business under the powers
of his will and in his own firm name are not
partners within the meaning of section 1 of
the Partnership Act, 1890, and cannot be
adjudicated bankrupt as partners under sec-
tion 115 of the Bankruptcy Act, 1883, but may
be individually proceeded against as joint
debtors. Fisher rf- Sons, In re, 81 L. J. K.B.
1246; [1912] 2 K.B. 491; 106 L. T. 814:
19 Manson, 332; 56 S. J. 553— Phillimore, J.
Instalments of Debt — Payment out of
Partnership Assets — Judgment for Non-pay-
ment of Later Instalments — Satisfaction by
One Partner — Contribution — Equitable Rights
between the Joint Debtors.] — D. and H., who
were partners, covenanted to be jointly and
severally liable to P. for payment of a debt
by instalments. The earlier instalments were
paid out of the partnership assets, and later
ones by D., after judgment for them had been
recovered. D. demanded from P. that, in
order to enforce his right to contribution
against H. , the judgments should be delivered
to him, as provided by section 5 of the Mer-
cantile Law Amendment Act, 1856; but H.
informed P. that D.'s right to contribution
depended on the equitable rights between D.
and himself in respect of a partnership action
then pending between them, upon which P.
declined to hand over the judgments. D. then
brought an action against P. claiming (a)
delivery of the judgments ; (b) damages for
non-delivery ; (c) a declaration that by reason
of the refusal to assign the judgments D. was
released from all liability in respect of any
future instalments : — Held, that the provisions
of section 5 of the Mercantile Law Amendment
Act. 1856, might be subject to the equitable
relationship between the parties, and that,
although P. had committed a breach of a
statutory obligation in refusing to assign the
judgments, yet, as D. could not have levied
execution upon them without the consent of
the Judge in the partnership action, and
without taking into account the inter-partner-
ship rights of himself and H., he had suffered
no actual damage. Held, further, that D. was
not released from liability in respect of future
instalments, inasmuch as there had been no
alteration of the original conditions as to the
liability of the parties ; and the failure to
1093
PARTNEKSHIP.
1094
assign the judgments would have only
operated to release him if and so far as the
delay in handing over might have made them
less valuable. Dale v. Powell; Powell v. Dale,
105 L. T. 291— Parker, J.
IV. DEATH OF PARTNER.
See also Vol. X. 610, 1730.
Purchase of Dead Partner's Share by Sur-
viving Partner — Survivor Sole Executor of
Deceased Partner — Conflict of Interest and
Duty — Reopening of Transactions after Long
Delay.] — By a clausi; iii articles of partner-
ship executed by two brothers in 1878 it was
agreed that within thirty days after notice
of the death of a partner " a general account
in writing shall be made and taken of the
partnership goods, wares, stocks, credits, and
effects belonging, due, or owing to the said
co-partnership; also all debts due, or owing
to the said partnership . . . and in taking
such account such stock and other assets as
shall not consist of money shall be valued
either by mutual agreement or valuation in
the usual way, nothing being charged for
goodwill ; and the surviving . . . partner shall
and will pay or cause to be paid unto the
executors or administrators of the so deceased
partner . . . his full share." One brother
died in 1886, having appointed the other his
sole executor. The survivor took an account
of the assets in the same way as the half-
yearly balance sheets had for several years
been prepared when both partners were alive,
consulting an intimate friend of the testator's,
and appointed a man of high character and
wide business experience to check the valua-
tion. The testator's share, excluding goodwill,
was paid with interest. Twenty years or more
after the partner's death the residuary legatees
brought an action against the survivor for an
account : — Held, that there was a valid con-
tract of sale and purchase which had been
executed ; that it was not necessary to appoint
valuers for an exhaustive valuation ; and that
there was no ground for impeaching the trans-
actions on the ground of the conflict between
interest and duty in the executor which was
created by the testator himself. Hordern v.
Hordern, 80 L. J. P.C. 15; [1910] A.C. 465;
102 L. T. 867 ; 26 T. L. R. 524— P.C.
Dissolution by Death.]— See Garwood v.
Garwood, post, col. 1094.
V. DISSOLUTION OF PARTNERSHIP.
See also Vol. X. 633. 1734.
Deed of Dissolution — Construction — Loan to
Partners Jointly — Share of Profit and Loss
by Retiring Partner.]— J. and W. carried on
business under a deed of partnership dated
May 30, 1895. In October, 1907, a bank
advanced the partners jointlv the sum of
11,000/. On September 20, 1909, J. and W.
purported to dissolve the partnership and W.
retired from the business. By the deed of
that date W. assigned his share and interest
to J., and an account was to be taken of W.'s
share as on December 31, 1909, and such share
when ascertained was to be credited to W.
in the books of the firm and was to remain
a loan to the firm for ten years, at 5 per cent,
per annum interest. If on the taking of this
account there was found an insulficiency of
assets to meet liabilities, W. was to pay to J.
half of such deficit. On November 4, 1909,
J. suspended payment, and was adjudicated
bankrupt on January 7, 1910, and on July 25,
1910, W. was adjudicated bankrupt, the two
bankruptcies subsequently being consolidated.
The trustee of the separate estate of J. claimed
a sum of 1,657/. lying on current account at
the bank on November 4, 1909, in the name
of the firm, which sum the bank claimed to
retain and set off against the joint liability of
W. and J. for 11,000Z. advanced to the firm :
— Held, that upon the true construction of the
deed of September 20, 1909, there w-as a dis-
solution of partnership as from that date, and
not as from December 31, 1909; so that the
sum standing to the credit of the firm on
November 4, 1909, belonged to the separate
estate of J. Jane, In re; Trustee, ex parte,
110 L. T. 556— C. A.
Dissolution by Death — " Gains and profits"
— Principles on which Accounts ought to be
Taken.] — J. G., one of three partners in a
colliery, charged his one-third share and the
future gains and profits in the partnership,
which was dissolved by his death on April 20,
1909, with the payment of 10,000/. and
interest to trustees of a deed for the benefit
of his wife and family, and also covenanted
to pay to the trustees all the balance of
residue remaining of his share in the gains
and profits of the business, such excess of
the interest on the 10,000/. to be divided as
to two-thirds for his wife and one-third for
himself : — Held, that as between them and
J. G.'s estate the trustees under the covenant
were not entitled to have paid to them out
of his share of the partnership assets surplus
income which, although appearing in the
partners' accounts as excess of receipts over
expenditure during a particular year, was,
by the settled practice of the partners, treated
otherwise than as distributable profits and
devoted to colliery equipment and replacing
assets that had been worn out. Held,
further, that from the taking of the last
annual account previous to dissolution there
must, in the absence of evidence of the
amount appropriated to depreciation year by
year, be an enquiry as to the amount to be
so appropriated since the last account, the
proper amount being ascertained by valuers
appointed by the parties or by the Court.
Garivood v. Garwood, 105 L. T. 231— C. A.
Expired Contract of Partnership Continued
as Partnership at Will — Application of Pre-
emption Clause in Original Contract.]— A
contract of copartnery in a wine and spirit
business between three parties, entered into
for five years, contained a clause providing
that " in the event of the copartnery not being
renewed at the expiry thereof the licence shall
then be valued by a neutral party mutually
appointed, and the first party as holder of the
licence shall in his option be entitled to pay
out the second and third parties the amount
due to them respectively," or that otherwise
the licence should be sold in open market,
1095
PARTNER SHIP— PATENT.
1096
and the proceeds divided among the parties.
After the expiry of the term created by the
contract the partnership was carried on for
several years as a partnership at will until
dissolved by a notice from the first party : —
Held, that the clause conferring the right of
pre-emption was carried forM'ard into the part-
nership at will, and that at its termination the
first party was entitled to exercise the right.
M'Gown V. Henderson, [1914] S. C. 839—
Ct. of Sess.
Employment of Assets — Account — Interest.]
—It is well settled that when on the dissolu-
tion of a firm one of the partners retains assets
of the firm in his hands without any settle-
ment of accounts and applies them in con-
tinuing the business for his own benefit, he
may be ordered to account for those assets
with interest thereon, and this apart from
fraud or misconduct in the nature of fraud.
Ahmed Musaji Saleji v. Hashim Ebrahim
Saleji, L. K. 42 Ind. App. 91— P.C.
Receiver — Solicitors — Bills of Costs.] — In an
action for dissolution of partnership between
solicitors a receiver was appointed to get in
outstanding costs due from clients, and the
books of the firm were placed in his hands.
The entries of attendances made by E., one of
the partners, were not sufficiently detailed to
enable the receiver to make out proper bills.
R. refused to settle the bills unless remunerated
by 5 per cent, on the amount thereof. The
other partner thereupon took out a summons
for an order that E. should be directed to
settle the bills within one week : — Held, that
the summons must be refused. Ray v. Flower
Ellis, 56 S. J. 724— C.A.
VI. WINDING-UP OF LIMITED
PAETNEESHIP.
Grounds on which Ordered.] — A general and
limited partner entered into partnership. The
limited partner contributed the capital ; and
it was agreed that the sum so contributed
should be treated as a debt due from the
partnership to the limited partner, and that
interest should be paid thereon at the rate
of 5 per cent, per annum. This interest had
never been paid, and no part of the capital
had been refunded to the limited partner. It
was also agreed that the general account should
be signed by both partners once every year,
but the general partner had neglected to
comply with this provision. The general
partner had also, in breach of the partnership
articles, habitually absented himself from the
partnership business, and had also misapplied
a sum of money advanced to him by the limited
partner for a specific purpose in connection
with the partnership business : — Held, that in
these circumstances, and having regard to the
provisions of the Limited Partnership Act,
1907, of section 268, sub-section 1, clause vii.
of the Companies (Consolidation) Act, 1908,
and of the Limited Partnership (Winding-up)
Rules, 1909, the petitioner was entitled to a
compulsory winding-up of the partnership.
Hughes cf Co., In re, 80 L. J. Ch. 262; [1911]
1 Ch. 342 ; 104 L. T. 410— Swinfen Eady, J.
PARTY WALL.
See METROPOLIS (BUILDINGS).
PASSENGER.
.See CARRIEE ; EAILWAY ; NEGLIGENCE.
PASSING-OFF.
See TRADE.
PATENT.
A. For what Granted, 1096.
B. Letters Patent.
1. Vesting Order, 1097.
2. Revocation, 1097.
C. Specification, 1098.
D. Infringement.
1. What is, 1099.
2. Practice.
a. Account of Damages and Profits,
1100.
b. Delivery Up of Infringing Articles,
1101.
c. Discovery, 1101.
d. Costs, 1102.
E. Prolongation of Letters Patent, 1103.
F. Assignment, Sale, Licences and
Royalties.
1. Generally, 1104.
2. Sale, 1104.
3. Licences and Royalties, 1104.
G. Appeal from Comptroller, 1107.
H. Patent Agent, 1107.
A. FOR WHAT GRANTED.
.S'ee also Vol. X. 688, 1742.
Subject-matter.]— A patent for the mere
new use of a known contrivance without any
additional ingenuity in overcoming fresh diffi-
culties is bad and cannot be supported ; but a
patent for a new use of a known contrivance
is good and can be supported if the new use
involves practical diSiculties which the patentee
has been the first to see and overcome by
some ingenuity of his own. An improved
thing produced by a new and ingenious appli-
cation of a known contrivance to an old thing
is a manner of new manufacture within the
meaning of the statute of James. Layland v.
Boldy, 30 R. P. C. 547 ; 29 T. L. R. 651— C.A.
1097
PATENT.
1098
B. LETTEES PATENT.
See also Vol. X. 711, 1744.
1. Vesting Order.
Patent rights being choses in action, the
Court has jurisdiction, under section 35 of the
Trustee Act, 1893, to make an order vesting
them in such persons as the Court may appoint.
Heath's Patent, In re, 56 S. J. 588— Swinfen
Eady, J.
2. Revocation.
Patent Worked "Exclusively" or
" Mainly " Abroad — Cessation of Business.]
— Where an application is made under sec-
tion 27 of the Patents and Designs Act, 1907,
for the revocation of a " patent on the ground
that the patented article or process is manu-
factured or carried on exclusively or mainly
outside the United Kingdom," the Court is
bound to satisfy itself, before it can give relief
under the section, that the patented article or
process is manufactured or carried on ex-
clusively or mainly outside the United King-
dom. In coming to that conclusion, however,
the Court is not bound to say that at the
precise minute, or on the precise day, or the
precise day or two. or even in the precise week,
when the application was lodged there was a
manufacture of the article or a carrying on
of the process ; and the mere fact that the
application is lodged at a moment when no
process is going on will not disturb the juris-
diction of the Court. Green's Application,
In re, 80 L. J. Ch. 484; [1911] 1 Ch. 754;
104 L. T. 629 ; 28 R. P. C. 423— Parker, J.
Where it appeared that for three months
before the petition to revoke a patent granted
in 1906 was lodged there had been no carry-
ing on of the patented process outside the
United Kingdom at all, a permanent stop
having been put to the manufacture, which
had previously taken place only in France,
the application was refused. lb.
Extent of Working within United King-
dom— Computation of — Inclusion of Working in
Derogation of Patentee's Rights.] — In com-
puting the extent to which a patented article
or process is manufactured or carried on in
the United Kingdom, for the purpose of ascer-
taining whether it is manufactured or carried
on " exclusively " or " mainly " outside the
kingdom within section 27, sub-section 1 of the
Patents and Designs Act, 1907, it is immaterial
whether working which has taken place in this
country is or is not in derogation of the
patentee's rights ; and working by infringers
ought therefore to be included in the computa-
tion. Fiat Motors' Application, In re, 80 L. J.
Ch. 48; [1911] 1 Ch. 66; 103 L. T. 453;
27 R. P. C. 762; 55 S. J. 64; 27 T. L. R. 74
— Parker, J.
— ;— Revocability of Patent as Defence to In-
fringement Action.] — Observations on sec-
tion 25, sub-section 2 of the Act, making the
revocability of a patent a defence to an
infringement action. lb.
Satisfactory Reasons for not Working
Patent in United Kingdom — Liability to In-
fringement Proceedings by Applicant for
Revocation — Position and Conduct of Appli-
cant.]— While the motive of an applicant for
the revocation of a patent under section 27
of the Patents and Designs Act, 1907, is
immaterial, his position and conduct, so far as
they may have influenced the action of the
owner of the patent, are material; and in
considering whether a case for revocation has
been made out the Comptroller-General or the
Court must look primarily not to the interests
of the individual, but to those of the public.
Taylor's Patent, In re, 81 L. J. Ch. 438;
[1912] 1 Ch. 635; 106 L. T. 600; 29 R. P. C.
296 ; 56 S. J. 415 ; 28 T. L. R. 293— Parker, J.
Applicants for the revocation of a patent
under the section, on the ground that it had
been worked exclusively or mainly outside the
United Kingdom, were themselves the owners
of a prior patent which would have been
infringed by any working of the patent sought
to be revoked. They had refused an offer of
a licence under that patent, and its owners
had not applied for a voluntary or compulsory
licence under the prior patent. The prior
patent would shortly expire, but the other
patent had some years to run : — Held, that,
notwithstanding the non-application for a
licence by the owners of the patent sought to
be revoked, the fact that it could not have been
worked without the risk of infringement pro-
ceedings by the owners of the prior patent was
a satisfactory reason for the patent not being
worked in this country, and that it ought not
therefore to be revoked. lb.
Vagueness of Specification — Anticipation.]
— The Court revoked a patent for an improve-
ment in golf balls on the ground that the
specification was so vague that it was
impossible to say what invention was claimed,
and that even if the claim was sufficient the
patent had been anticipated. Gamage, Lim.
V. Spalding, 31 T. L. R. 178— Warrington, J.
C. SPECIFICATION.
See also Vol. X. 724. 1749.
Claim too General — Colour Kinematograph
— Ambiguity.] — A patent specification made
the following claim : "In connexion with
kinematograph apparatus, the employment of
a succession of but two colour records, the
records of one colour sensation alternating
with those of the other colour sensation, so
that the observer's persistence of vision causes
him to see apparently super-imposition or
blending of the colours received from series of
two colour records." The essence of the
invention was the employment of two colours,
tri-red and tri-green, instead of tlhe three
colours, tri-red, tri-green, and tri-blue, by
which a stationary colour picture can be ob-
tained : — Held, that the patent was bad, first,
because the claim was not confined to tri-
colours and did not state that of them only
red and green were claimed or that the picture
would exclude blue; and secondly, owing to
ambiguity. Natural Color Kinematograph Co.
1099
PATENT.
1100
V. Bioschemes, Lim., 32 E. P. C. 256;
31 T. L. R. 324— H.L. (E.)
Sufficient Description.] — The plaintiffs, as
the registered legal owners of letters patent,
granted to one N. for a " process for converting
unsaturated fatty acids or their glycerides into
saturated compounds," alleged that the defen-
dants were infringing their letters patent, and
they claimed an injunction and the usual
ancillary relief. The defendants denied the
validity of the letters patent on the ground
that N.'s specification did not sufficiently
describe the manner in which the process was
to be carried out : — Held, that the specification
was insufficient in this respect and that the
plaintiffs' action failed. Cros field v. Techno-
Chemical Laboratories, 30 R. P. C. 297;
29 T. L. R. 378— Neville, J.
Vagueness of — Revocation.] — See Gamage,
Lim. V. Spalding. See ante, col. 1098.
Leave to Amend — Infringement — Action to
Restrain — Amended Specification to Describe
Invention.] — Where leave to amend the speci-
fication of a patent has been made to the
Comptroller before, and leave to amend
granted after, the issue of a writ in an action
for infringement, the proper specification to
put in evidence and refer to at the trial is the
specification as it stands after amendment.
Andrew v. Crossley (61 L. J. Ch. 4.37; [1892]
1 Ch. 492; 9 R. P. C. 165) considered.
Stepney Spare Motor Wheel Co. v. Hall,
80 L. J. Ch. 391 ; [1911] 1 Ch. 514 ; 104 L. T.
665; 27 T. L. R. 283— Warrington, J.
Affirmed, 28 R. P. C. 381— C. A.
D. INFRINGEMENT.
1. What is.
See also Vol. X. 756, 1754.
Substitution of Equivalent Part.] — No one
who borrows the substance of a patented
invention can escape the consequences of
infringement by making immaterial varia-
tions. The question always is whether the
infringing apparatus is substantially the same
as the apparatus said to have been infringed.
Where a patent is for a combination of parts
or a process, and the combination or process,
besides being itself new, produces new and
useful results, every one who produces the
same results by using the essential parts of the
combination or process is an infringer, even
though he has in fact altered the combination
or process by omitting some unessential part or
step, and substituting another part or step
which is in fact equivalent to the part or step
he has omitted. To ascertain the essential
feature of an invention, the specification must
be read and interpreted by the light of what
was generally known at the date of the patent.
Marconi v. British Radio-Telegraph and Tele-
phone Co., 28 R. P. C. 181; 27 T. L. R. 274
—Parker, J.
Wireless Telegraphy — Similar Apparatus —
Introduction of Two Spark Gaps.] — The
plaintiffs were the owners of a patent for im-
provements in wireless telegraphy apparatus,
and the defendants sold an apparatus which
for electrical purposes was identical with an
apparatus previously held to be an infringe-
ment of the plaintiffs' patent, except for the
introduction into the primary circuit of two
additional spark gaps and a through charging
coil, the presence of the latter being conse-
quent on the introduction of the two spark
gaps : — Held, that by the introduction of the
two spark gaps the defendants had not pro-
duced an apparatus which did not come within
the scope of the plaintiffs' patent, and that
therefore the defendants' apparatus was an
infringement of the plaintiffs' patent. Marconi
V. Helsby Wireless Telegraph Co., 31 R. P. C.
399; 30 T. L. R. 688— Astbury, J.
2. Practice.
a. Account of Damages and Profits.
See also Vol. X. 805, 1763.
Measure of Damages — How Computed.] — In
an action by patentees for damages in respect
of the sale of articles infringing their patent it
was proved that the defenders, the infringers,
had sold such a number of the articles as
would have yielded to the pursuers, had they
effected the sales, a profit of approximately
5,000/. The Second Division of the Court of
Session (recalling an award by the Lord
Ordinary of 1,500/.) awarded the pursuers
3,000/., which represented the profits on the
proportion of the articles sold by the defenders
which, in the opinion of the Court, the pursuers
would themselves have succeeded in selling
had there been no infringement. On appeal
to the House of Lords the defenders asked the
House to restore the Lord Ordinary's award,
which they contended was well founded on the
facts, and in any event was, like the verdict
of a jury, only open to challenge if wholly
unsupported by, or was contrary to, the evi-
dence. The pursuers acquiesced in the figure
arrived at by the Second Division. The House
of Lords, holding that they were entitled to
consider the question of damages on its merits,
on a review of the whole evidence affirmed
the judgment of the Second Division (Earl of
Halsbury dissenting). Watson, Laidlotv d Co.
V. Pott, Cassells <f Williamson, [1914] S. C.
(H.L.) 18— H.L. (Sc.)
Per Lord Shaw : Legally the pursuers were
entitled to damages in respect of all the articles
sold by the defenders, irrespectively of whether
they themselves could have sold them or not,
and that in cases where they themselves could
not have effected the sales, damages fell to be
assessed by way of a royalty on the articles
.sold. lb.
Whether Profits on Whole Machine or
Infringing Parts only.] — The defendants sold
19.500 prepayment gas meters which contained
two parts that constituted infringements of
the two letters patent of the plaintiffs. The
profit on the infringing parts represented about
one forty-fourth of the whole profit on a meter.
Under a judgment by consent an enquiry was
directed as to what damages (if any) the plain-
1101
PATENT.
1102
tiffs had sustained by the defendants' infringe-
ments. The Master certified that the profit
lost by the plaintiffs must be considered to be
the profit on the sale of the whole of each
meter. He was of opinion that 5,000 more
meters would have been sold by the plaintiffs
but for the defendants' sale of infringing
meters ; and he assessed the damages for loss
of profit under this head at 13.s. 4<i. per meter
(3,3331. 6s. 8d.), and for loss of profit on
actual sales by the plaintiffs in consequence
of a reduction in prices from the defendants'
competition at 1,500/. The total was there-
fore 4,833Z. 65. 8f/. The defendants applied
to vary the Master's certificate by giving the
plaintiffs only nominal damages ; and the
plaintiffs applied to increase the number of
meters they would have sold to 10,000. It
was decided by Eve, J., that the Master had
rightly certified that the profit on the whole
meter was the proper factor to be taken into
calculation, and had rightly fixed the profit on
the 5,000 meters at 135. id. per meter; but
that that figure ought on the evidence to be
reduced to 3,500, and the damages to
2,3331. 65. 8d. ; and that the finding that the
plaintiffs' loss on actual sales was 1,500Z. ought
not to be disturbed. On appeal, — Held, that,
it not having been shewn that the learned
Judge had proceeded on any erroneous prin-
ciple, his decision must be affirmed. Meters,
Lim. V. Metropolitan Gas Meters, Lim..
104 L. T. 113; 28 R. P. C. 157— C. A.
b. Delivery up of Infringing Articles.
Judgment for the Plaintiff with Delivery
up — Defendant's Right to Elect to Destroy.]
— This was a motion to vary minutes of judg-
ment delivered on June 17, 1911, whereby the
defendants in the action were ordered, among
other things, to make and file within fourteen
days after service of the judgment upon them
a full and sufficient affidavit (to be made by
the secretary or other proper officer), stating
what arc lamps or parts of arc lamps were in
their possession or power made in infringe-
ment of the said letters patent, and within
four days from the filing of such affidavit to
deliver up to the plaintiffs the arc lamps or
parts of arc lamps that should by such affidavit
appear to be in their possession or power by
adding to such minutes immediately after the
words " deliver up to the plaintiffs " the
words "or in the presence of the plaintiffs or
their agents destroy or otherwise make unfit
for use." The motion was refused. British
Westinghouse Electric and Manufacturing Co.
V. Electrical Co., 28 R. P. C. 530; 55 S. J. 689
— Swinfen Eady, J.
c. Discovery.
See also Vol. X. 812, 1764.
Defence of Manufacture Outside United
Kingdom — Application for Discovery of Docu-
ments by Defendants — "Fishing" Enquiry,'
— Defendants in an action for infringement
of patents asked for discovery of documents
against the plaintiffs. The defendants had
pleaded, by way of defence, under section 25,
sub-section 2 ib) of the Patents and Designs
Act, 1907 (which incorporates section 27 of that
Act), that the patents were manufactured
mainly outside the United Kingdom, giving a
list of firms in America, Germany, and Holland
by whom the patent processes were carried on.
Discovery was resisted on the ground that,
in cases where a petition was brought to revoke
a patent on the above grounds, a prima facie
case must have been made out before the appli-
cant could obtain particulars of the respondents'
business, otherwise the application merely
became a " fishing " enquiry in order to see
trade books ; and where the same plea was
raised as a defence the same considerations
applied. Neville, J., held that as the issues
were defined by the particulars given by the
defendants, discovery ought to be given : —
Held, by the Court of Appeal, that the order
was right as regards the plaintiffs' cause of
action for infringement of the patents, but
that as regards the defence pleaded under
section 25, sub-section 2 (b) of the Patents
and Designs Act, 1907, discovery ought to be
limited to documents shewing the imports from
the firms or companies named in that defence,
and documents shewing the amount of manu-
facture by the plaintiffs. Britisli Thomson-
Houston Co. V. Duram, Lim., 84 L. J. Ch. 816 ;
[1915] 1 Ch. 823 ; 113 L. T. 28 ; 32 R. P. C. 104
C.A.
Order of Neville, J. (84 L. J. Ch. 327),
varied. 76.
d. Costs.
See also Vol. X. 819, 1764.
Judgment by Consent — Motion or Sum-
mons.]— Tn actions for the infringement of
registered designs, or of patents, or of trade
marks it is desirable that there should be some
publicity given to the order of the Court.
Accordingly, where defendants had consented
to judgment in respect of an infringement of
the plaintiffs' registered design : — Held, that
the plaintiffs were entitled to the costs of
moving for judgment in open Court, and not
merely to such costs as would have been
incurred had the application been made on
summons in chambers. Smith li Jones, Lim.
V. Service, Reeve <f Co., 83 L. J. Ch. 876;
[1914] 2 Ch. 576; 111 L. T. 669; 31 R. P. C.
319; 58 S. J. 687; 30 T. L. R. 599— Sargant,
J.
Gandy Belt Manufacturing Co. v. Fleming,
Birkby ,t Goodall, Lim. (18 R. P. C. 276), and
Royal Warrant Holders' Association v. Kit son,
Lim. (26 R. P. C. 157), followed. London
Steam Dyeing Co. v. Digby (57 L. J. Ch. 505;
36 W. R. 497) and Allen v. Oakey (62 L. T.
724) not followed. Ib.
Threats Action — Infringement Action —
Threats Action Discontinued.] — In February,
1911, the plaintiffs learned that the defendants
were issuing warnings as to the use of certain
patented goods of the plaintiffs' manufacture.
On Marcii 31 they took out the writ in this
action to restrain the continuance of threats.
On April 13 there was a notice of motion for
an injunction in the threats action, and on
April 21 tlie defendants issued a writ for
1103
PATENT.
1104
infringement of their patent. On April 25 the
motion in the threats action came before the
Court, and it was arranged that the proceed-
ings in the threats action should be stayed
to abide the result of the infringement action,
and that the costs of the threats action should
be reserved, and the motion stood over with
liberty to apply. The infringement action
came on for trial on December 14, 1911, and
judgment was given for the defendants in
that action ; this judgment was afterwards
af&rmed by the Court of Appeal. Upon the
motion in the threats action being restored,
it was admitted that the plaintiffs had no
cause of action, the defendants having brought
themselves within the proviso of section 36 of
the Patents and Designs Act, 1907 i—Held,
that although the threats action must be dis-
missed, the plaintiffs had taken the proper
course with a view to the saving of expense,
and therefore the Court should dismiss the
action without costs. Metropolitan Gas Meters
V. British, Foreign, and Colonial Automatic
Light Controlling Co., 82 L. J. Ch. 74; [1913]
1 Ch. 150: 108 L. T. 151; 29 E. P. C. 680:
57 S. J. 129— Warrington, J.
Taxation — Action for Infringement of Three
Patents — Action Abandoned in Respect of Two
Patents at the Trial — Particulars of Objec-
tions.]— Where an action was commenced for
the infringement of three patents, and at the
hearing the plaintiffs abandoned the action in
respect of two of the patents and fought out
the action on one patent only, — Held, that
the action had not proceeded to trial on the
two patents as to which the case had been
abandoned within the meaning of Order LIII.A,
rule 22, and therefore that the costs of the
defendants' particulars of objections to those
patents were within the discretion of the
Taxing Master. Babcock d Wilcox v. Water
Tube Boiler and Engineering Co. (27 E. P. C.
626) followed. May'v. Yuill d: Co. (27 E. P. C.
525) not followed. British, Foreign, and
Colonial Automatic Light Controlling Co. v.
Metropolitan Gas Meters, Lim., 81 L. J. Ch.
520; [1912] 2 Ch. 82; 106 L. T. 834—
Warrington, J.
Discontinuance with Leave of Court —
Costs of Particulars of Objections.1 —
Order LIII.A, rule 22 of the Eules of' the
Supreme Court, which provides that the costs
of particulars of objections, delivered by the
defendant in an action for breach of patent,
shall be in the discretion of the Taxing Master.
will be applied to actions discontinued,
whether with or without the leave of the Court.
Bihhy d Baron v. Strachan, 28 E. P. C. 305;
55 S'. J. 235— Joyce, J.
E. PEOLONGATION OF LETTEES
PATENT.
Extending Term as to some Claiming
Clauses Only — Powers of Court. 1 — The Court
has power, under section 18 of the Patent
and Designs Act, 1907, to extend the term of
a patent as to one or more of its claiming
clauses without extending it as to all those
clauses. Lodge's Patent, In re, 80 L. J. Ch.
517; [1911] 2 Ch. 46; 104 L. T. 716;
28 E. P. C. 365; 27 T. L. E. 419— Parker, J.
F. ASSIGNMENT, SALE, LICENCES,
AND EOYALTIES.
See also Vol. X. 843, 1768.
1. Generally.
Registered Proprietor — Right to Sue for In-
fringements.]— Certain rights having been
conferred by statute on a registered proprietor
by sub-section 3 of section 71 of the Patents
and Designs Act, 1907, the Court will from
such fact draw the inference that there is in
such registered proprietor a right to sue.
Duncan v. Lockerbie d Wilkinson, 29 E. P. C.
454; 56 S. J. 573— Neville, J.
2. Sale.
Rights of Patentee — Jobbers and Dealers —
Conditions Imposed by Patentee.] — A prohibi-
tion in an agreement between patentees and
a dealer against " Exchanging or tendering
Edison phonographs or parts, records or
blanks, in whole or part payment for privileges
of any character, or for advertising, or for
goods of some other maker or nature," is not
violated by the exchange between one dealer
and another of one class of goods for another,
provided that the condition of the agreement
is observed as to trade prices, under-cutting,
and rival goods ; but a dealer whose name has
been removed from the list is still a restricted
trader and bound by the conditions attached
to his agreement as to the sale or disposal of
the goods made with the patentees. National
Phonograph Co. of Australia v. Menck,
80 L. J. P.C. 105; [1911] A.C. 836;
104 L. T. 5 ; 28 E. P. C. 229 ; 27 T. L. R. 239
-P.C.
3. Licences and Eoyalties.
Petition for Grant of Compulsory Licence
— Notice and Grounds of Opposition to Peti-
tion — Particulars of Grounds — " Written
proceeding requiring particulars" — Obliga-
tion on Petition to make out Case.] — The
grounds of opposition to a petition for a com-
pulsory licence under section 24 of the Patents
and Designs Act, 1907, which, with the notice
of opposition, may be delivered to the Board
of Trade under rule 70 of the Patents Eules,
1908, are not a " written proceeding requiring
particulars " within rule 7 of Order XIX. of
the Eules of the Supreme Court ; and parti-
culars of them cannot therefore be ordered. A
petitioner under section 24 has to make out
his own case, subject to the right of the Court
to require the respondent to formulate his case
if he sets up an affirmative case of his own.
Robin Electric Lamp Co., In re (No. 1),
84 L. J. Ch. 49; [19141 2 Ch. 461; 111 L. T.
1062: 31 E. P. C. 341— Warrington, J.
Compulsory Licence — Case Necessary for
Petitioner for, to Establish — Form of Order.]
—The words " the reasonable requirements of
the public shall not be deemed to have been
1105
PATENT.
1106
satisfied " in sub-section 5 of section 24 of the
Patents and Designs Act, 1907, should be read
" shall be deemed not to have been satisfied."
Robin Electric Lamp Co., In re (No. 2),
84 L. J. Ch. 500: [19151 1 Ch. 780; 113 L. T.
132; 32 K. P. C. 202; 31 T. L. E. 309—
Warrington, J.
The mischief aimed at by the section is the
failure of the patentee to satisfy the reasonable
requirements of the public as distinguished
from those of particular individuals ; and in
order to establish a case within the section a
petitioner for a compulsory licence must prove
default, not towards himself only, but towards
the public generally, or that part of it
interested in the matter in question. The
expression " trade or industry '" in the section
is also used in a wide sense, and it is necessary
for a petitioner to prove that a trade or
industry as a whole, not a particular trade, is
unfairly prejudiced; while the "establishment
of a new trade or industry " is a different thin;^
altogether from the entry of a particular person
into an existing trade or industry, and the
" demand " referred to at the end of sub-
section 5 (a) of the section is the demand of
the public at large, not that of a particular
person. An order made under the section
should not take the form of a general direction
to grant licences, but that of a direction to
grant a licence to the petitioner. Any other
party desiring a licence must present a separate
petition. Sub-section 5 of the section contem-
plates, as legitimate alternative modes of
working a patent, the maintaining of an
adequate supply by the patentee himself or
the licensing others to do so ; and a petitioner
for a compulsory licence must prove that the
patentee has made default in both these modes,
not in one of them only. Ih.
Licensee — Alleged Infringement — Threats of
Legal Proceedings — Whether Person Aggrieved
has Remedy by Statute." — A person who
claims to be the licensee of a patent, but
who does not claim to be the patentee is not
liable to an action under section 36 of the
Patents and Designs Act, 1907. for making
groundless threats of legal proceedings in
respect of an alleged infringement of the
patent. Diamond Coal Cutting Co. v. Mining
Appliances Co., 60 S. J. 42: 32 T. L. E. 47
— C.A.
Contracts as to Licence to Use Process —
Condition Requiring Licensee to Purchase Un-
protected Articles from Patentee's Agent —
Defence to Action — Defendant not a Licensee.^
— The patentee of a process for increasing the
keeping quality of compounds containing
unstable oxygen, such as hydrogen peroxide
and certain solutions, consisting in adding
thereto alkali pyrophosphates, before 1913
granted licences for the use of the process for
the term of the patent with a condition that
the licensees should, during the continuance of
the licence, purchase all the pyrophosphates
used by them in their hydrogen peroxide baths
for the bleaching of straw-plait hats, and other
fibres, from the patentee's agent. Tn an action
for infringement of the patent brought by the
patentee against a person who was not a
licensee the defendant pleaded by his defence
as a point of law that the condition as to the
purchase of pyrophosphates had been inserted
in contracts made since January 1, 1908, and
still in force, and he relied on section 38, sub-
section 4 of the Patents and Designs Act,
1907 : — Held, that the patent was one for a
process ; that the condition in question was a
condition the effect of which was to require
the licensees to acquire from the licensor
articles not protected by the patent, and was
by virtue of section 38, sub-section 1 (h) null
and void; that " protected by the patent " in
that clause meant " claimed by the patent,"
that pyrophosphates being ordinary articles of
commerce were not so protected ; and that the
insertion of the condition in the licences was
available as a defence to the action under
sub-section 4 of section 38 of the Act. Sarason
V. Frenay, 83 L. .J. Ch. 909; [1914] 2 Ch.
474: 111 L. T. 919; 31 R. P. C. 330— C.A.
Royalties — Licence — Transfer.] — A clause
in a licence agreement for the use of certain
patents provided that "' the said licensee may
. . . transfer the said licence to any limited
liability company he may form to carry on his
business, or the business connected with and
arising out of said patents and this licence " :
— Held, that the licensee could not under this
clause rid himself of liability for royalties due
under the licence agreement by transferring
the licence to a company formed, not for the
purpose of carrying on his business or for
working the patents, but merely with the
view of ridding himself of such liabilitv.
Cumming.s v. Stewart, [1911] 1 Ir. E. 236^
M.E.
Lapse of Patent by Non-payment of
Fees — Implied Covenant by Patentee to Pay
Fees — Dependency of Covenant to Pay
Royalties.] — A patentee of improvements for
making re-inforced concrete called the
Cummings system, patented in the United
Kingdom. France, and Austria respectively,
;:ranted the exclusive right to work the patents
during the full term for which they were
granted ; the licensee expressly admitted the
validity of the patents and agreed to pay a
royalty of 2^ per cent, on the total amount
included in every contract for work executed
on the Cummings system, and a minimum
amount of 5,000 dollars each year during the
continuance of the agreement. The patentee
agreed to protect the patents against infringe-
ment and to defend any proceedings brought
, I gainst the licensee for the infringement of
other patents. There was no provision as to
payment of the renewal fees. The patentee
ilid not pay the renewal fees on the French
and Austrian patents, and they lapsed owing
to the non-payment. The licensee worked the
invention in England only, and without
success. The licensee paid the minimum
royalty at first, but declined to pay at the end
of the third year, and an action was brought
by the patentee to recover the amount then
due. The defendant resisted the claim on the
ground, first, of want of novelty of the inven-
tion; secondly, that under the agreement the
plaintiff was bound to pay the renewal fees,
that owing to the failure to pay the fees in
France and Austria the patents in those
1107
PATENT— PA YMENT .
1108
countries lapsed, and that the lapse of the
patents relieved the defendant from liability
to pay the royalty. The defendant counter-
claimed for a declaration that the agreement
was not binding and for a return of
521. 12s. 9(i. paid under a mistake. The
plaintiff contended, first, that the agreement
imposed no obligation on him to pay the fees ;
secondly, that even if it did, the breach of the
agreement by him in that respect was no
defence to the action, but only gave a right
to damages to be recovered on a counterclaim ;
and thirdly, that as the United Kingdom
patent remained valid, there was at most a
partial failure of consideration which did not
release the defendant from his agreement to
pay the royalty : — Held, first, that the defence
of want of novelty was not open to the defen-
dant; secondly, that there was an implied
covenant by the plaintiff to pay the renewal
fees; thirdly, that the covenant to pay the
royalties was not an independent covenant,
but dependent on the performance by the
plaintiff of the implied covenant to pay the
fees; fourthly, that, owing to the lapse of the
foreign patents, a substantial part of the
subject-matter of the agreement was destroyed,
and the agreement in a substantial part
became impossible of performance and ceased
to be binding; and fifthly, that as the royalty
was a fixed sum, the consideration was indi-
visible, and the failure of part was equivalent
to the failure of the whole. Mills v. Carson
(10 E. P. C. 9) distinguished. Lines v. Usher
(14 E. P. C. 206) followed. Cummings v.
Stewart, [1913] 1 Ir. E. 95— M.E.
G. APPEAL FEOM COMPTEOLLEE.
Limit of Time — Long Vacation.] — The
period of the Long Vacation is to be reckoned
in computing the one calendar month within
which, or such further time as the Court may
under special circumstances allow, a petition
of appeal from a decision of the Comptroller
under sections 20, 26, or 27 of the Patents and
Designs Act, 1907, must by Order LIII.A,
rule 4, be presented. Beldam's Patent, In re,
80 L. J. Ch. 133: [19111 1 Ch. 60; 103 L. T.
454; 27 E. P. C. 758; 55 S. J. 46— Parker, J.
Extension of Time — Special Circumstances
—"Pleading."]— The fact that the delay in
presenting an appeal was caused by the Long
Vacation is not a " special circumstance "
justifying an extension of time. lb.
H. PATENT AGENT.
See also Vol. X. 866, 1772.
Description as Patent Agent by Unregis-
tered Person.] — The respondent, who was not
a registered patent agent, issued a circular in
which he stated that he had wide experience
in patent matters, and that he did, and was
prepared to do, specified work in connection
therewith. This work was such as is usually
done by patent agents — for example, the
preparation of specifications and of applica-
tions for patents. The respondent did not in
terras state that he was a patent agent : —
Held, that he had not described himself as a
patent agent within the meaning of section 84
of the Patents and Designs Act, 1907.
Graham v. Tanner, 82 L. J. K.B. 119; [1913]
1 K.B. 17; 107 L. T. 681; 77 J. P. 35;
23 Cox C.C. 217 ; 29 E. P. C. 683 ; 29 T. L. E.
24— D.
Unregistered Person Describing Himself as
Patent Agent — "British and foreign" Patent
Agent.] — A person who without being regis-
tered used the title of " British and foreign "
patent agent, — Held, to have described him-
self as a patent agent within the meaning of
section 84 of the Patents and Designs Act,
1907, and accordingly was guilty of a con-
travention of that section. Lockwood v.
Chartered Institute of Patent Agents, [1913]
S. C. (J.) 8— Ct. of Just.
" Patent agency."] — The appellant and
another person carried on the business of a
patent agent at certain premises, but neither
of them was registered as a patent agent under
the Patent and Designs Act, 1907. The words
" Patent Agency " were affixed in prominent
enamel letters to the window of the premises,
and the words " Patents, Designs, Trade
Marks " were on a plate fixed to the wall next
to the window : — Held, that the appellant had
not described himself as a patent agent within
the meaning of section 84 of the Patents and
Designs Act, 1907. Hans v. Graham, 83 L. J.
K.B. 1255 ; [1914] 3 K.B. 400 ; 111 L. T. 551 ;
21 Cox C.C. 381; 78 J. P. 455— D.
PAUPER.
Settlement of.] — See Poor Law.
Lunatic] — See Poor Law.
PAVING.
In Metropolis.] — See Metropolis.
In other Places.] — See Local Government.
PAWNBROKER.
Power of Executor and Trustee to Pledge
Chattels.] — See Execttor.
PAYMENT.
See al.'^o Vol. X. 873. 1774.
Appropriation of Payments — Rule in Clay-
ton's Case — Mortgage to Secure Current
1109
PAYMENT— PENALTY.
1110
Account — Subsequent Mortgage with Notice
to the Bank.] — After notice to a bank holding
a security from its customer of a subsequent
mortgage by the customer, the debit of the
customer is struck at the date of notice ; and
where a current account is merely continued
and no specific appropriation of fresh payments
is made, such payments are credited to the
earliest items on the debit side of the account,
and continue to bfe so credited until the first
mortgage is extinguished. Deeley v. Lloyds
Bank (No. 1), 81 L. J. Ch. 697; [1912] A.C.
756; 107 L. T. 465;56 S.J. 734; 29 T. L. R. 1
— H.L. (E.)
A customer of the respondent bank mort-
gaged his property to the bank to secure an
overdraft limited to 2.500/. He then mort-
gaged the same property to the appellant for
3,500i. subject to the bank's mortgage. The
bank on receiving notice of this further mort-
gage did not open a new account, but continued
the old current account. The customer there-
after paid in moneys which at a particular
date, if they had been appropriated in
accordance with the rule in Clayton's Case
(1 Mer. 572). would have extinguished the
bank's mortgage. The customer's property
was sold by the bank for a sum sufficient to
satisfy the bank's debt, but not that of the
appellant : — Held, that the evidence did not
exclude the operation of the rule in Clayton's
Case (supra), which must be applied. lb.
Decision of the Court of Appeal (79 L. J.
Ch. 561 ; [1910] 1 Ch. 648) reversed. 76.
Rule in Clayton's Case — Intention.] —
By an agreement between the plaintiff and
L. the plaintiff made advances on goods con-
signed to him by L., such advances being in
account current, and each set of goods being
subject to a general lien for all advances.
The plaintiff also discounted bills for L.,
entering all his advances, discounts, and
securities in one current account. In dis-
counting bills for L. the plaintiff immediately
credited him with their full amount without
waiting till they were paid : — Held, that the
plaintiif did not thereby appropriate the entries
of the face value of discounted bills not yet
due as pavment of actual advances on other
bills still unpaid. Galula v. Pintus. 104 L. T.
574; 16 Com. Cas. 185; 27 T. L. E. 382—
Scrutton, J.
And see O'Shea, In re ; Lancaster, ex parte,
ante, col. 612.
No Alteration without Consent.] — The
property in suit was put up for sale by the
collector in respect of the unpaid balance of a
kist of revenue payable in .January, 1902. It
appeared that the appellant had paid and the
Government accepted the full amount thereof,
both parties appropriating the payment to that
kist ; but that subsequently the Treasury
officials had appropriated the same in the first
instance to the kist payable in September,
1901, with the result that money was still due
for the January kist : — Held, that the appro-
priation could not be varied without the con-
sent of the appellant, that there was nothing
due in respect of the January kist, and that
the sale was without jurisdiction. Mahomed
Jan V. Ganga Bishun Singh, Li. R. 38 Ind App.
80— P.C.
Novation — New Limited Company.] — A
and B formed themselves into a partnership
called the Simpitrol Lighting Co., and entered
into a written agreement with the plaintiffs
upon which goods were supplied to the com-
pany. A few months after its inception the
Simpitrol Lighting Co. was duly registered as
a limited company, and the plaintiffs continued
to supply goods under the said written agree-
ment to the new limited company, and kept
the account thereof in their ledgers as one
continuous account. The company while un-
registered made no payments to the plaintiffs,
but made considerable payments while regis-
tered as a limited company. Finding difficulty
in getting payment of their accounts, the
plaintiffs divided and re-arranged the account
in their ledger, appropriating the payments
made as against the goods supplied to the new
company, and sued A and B on the written
agreement for the goods supplied to the com-
pany while it was unregistered : — Held, that
the plaintiffs were entitled to succeed. Pitner
Lighting Co. v. Geddis. [1912] 2 Ir. R. 163
— K.B. D.
Postponement of — Moratorium.] — See
Moratorium.
PEERS AND PEERAGE.
See PARLIAMENT.
PENALTY.
See also Vol. X. 927, 1781.
Liquidated Damages or Penalty — Principle.]
— Where in a contract it is provided that the
party committing a breach thereof shall pay a
fixed sum " as liquidated damages and not as
a penalty," the question is whether the con-
struction contended for renders the agreement
unconscionable and extravagant and one which
no Court ought to enforce ; and where in the
circumstances the amount is reasonable, and
the proof of damage difficult and costly, the
sum mav be recovered as liquidated damages.
Webster v. Bosanquet, 81 L. J. P.C. 205 ;
[1912] A.C. 394; 106 L. T. 357; 28 T. L. R.
271— P.C.
The question whether a sum stipulated for
in a contract is a penalty or liquidated damages
is a question of construction for the Court, to
be decided upon the terms and circumstances
of the particular contract at the time of the
making, not of the breach. A presmnption is
raised in favour of a penalty where a lump
sum is to be paid as compensation in respect
of many different events, some of which occa-
sion serious and some trifling damage, but
1111
PENALTY— PENSION.
1112
that presumption may be rebutted by the fact
that the damage so caused, though varying in
importance, may be of such a nature that it
cannot be accurately ascertained. In a case
in which retail dealers had agreed not to sell
goods of a wholesale manufacturer at prices
less than the prices set out in the current price
list of the manufacturers, and not to sell to
certain persons whom the manufacturers had
decided not to supply, and to pay 51. for each
and every article sold in breach of the agree-
ment, " as and by way of liquidated damages
and not as a penalty," — Held, that the stipula-
tion was to be construed as one for liquidated
damages. Decision of the Court of Appeal
reversed. Dunlop Pneumatic Tyre Co. v. New
Garage and Motor Co., 83 L. J. K.B. 1574;
[1915] A.C. 79; 111 L. T. 862; 30 T. L. E.
625— H.L. (E.)
Agreed Damages for Various Breaches.]
— The plaintiffs agreed with the defendant to
sell to him their motor cars for sale by him
in a certain district, the defendants under-
taking not to sell any car or parts thereof
below a certain price, and agreeing to pay to
the plaintiffs 250L for every breach of this
undertaking, " such sum being the agreed
damages which the manufacturer will sus-
tain." The sum of 250L was also made pay-
able for various other breaches differing in
kind. The defendant sold five cars below the
price fixed : — Held (Bankes, L.J., dissenting),
that the 2501. was a penalty and not liquidated
damages. Ford Motor Co. v. Armstrong,
59 S. J. 362 ; 31 T. L. E. 267— C.A.
Decision of Atkin, J. (30 T. L. E. 400),
affirmed. 7b.
Contract for Lease — Breach of Condi-
tions by Lessor — Continuous Breach.] — In an
agreement for a lease there were provisions
that the lessors should complete by a fixed date
certain works, alterations, and repairs, and that
if these were not completed the lessors should
pay to the lessee Es. 150 a day from the date
of breach to the beginning of the action as
liquidated damages, and the same daily
amount from the latter date to the completion
of the works : — Held, that the failure to com-
plete the work was a continuous breach, and
that the daily Es. 150, both before and after
action brought, constituted liquidated damages
and not a penalty, and were recoverable as
such. De Soysa (Lady) v. De Pless Pol,
81 L. J. P.O. 126; [1912] A.C. 194; 105 L. T.
642— P.C.
Lease of Hotel — Mutual Obligations.] —
An agreement between two persons for the
lease of an hotel contained mutual obligations
of different kinds and of varying degrees of
importance. Inter alia the tenant was bound
to apply for a transfer of the licence, to
manage the hotel for the landlord until the
licence was transferred, and to take over the
stock at a valuation. The agreement also con-
tained the following clause : " Both parties
hereto bind and oblige themselves to imple-
ment their part of this agreement under the
penalty of 501., to be paid by the party failing
to the party performing or willing to perform
over and above performance." The tenant
having refused to go on with the lease or to
carry out the agreement at all, the landlord
claimed damages for breach of contract to the
amount of over 800Z. : — Held, first, that the
sum stipulated in the agreement was not
liquidated damages, but a penalty; and
secondly, that the landlord's claim for damages
was not limited to the amount mentioned in
the penalty clause. Opinion of Lord Fitz-
gerald, in Elphinstone (Lord) v. Monkland
Iron and Coal Co. (11 App. Cas. 332) com-
mented on and doubted. Dingwall v. Burnett,
[1912] S. C. 1097— Ct. of Sess.
Payment of Purchase Price by Instal-
ments— Forfeiture on Non-payment Punctually
of any Instalment — Penalty — Relief.] — The
respondents agreed to sell and the appellant
agreed to buy certain land for $75,000, of
which $2,000 were to be paid at once, $5,000
on or before June 14, 1910, $5,000 on or before
December 14, 1910, $60,000 in six equal semi-
annual instalments, and the balance of $3,009
on June 14, 1914, together with interest at
7 per cent, on so much of the purchase moneys
as might from time to time remain unpaid.
The agreement also contained the following
clause : " And it is expressly understood that
time is to be considered the essence of this
agreement, and unless the payments are punc-
tually made at the times and in the manner
above mentioned these presents shall be null
and void and of no effect, and the said party
of the first part [the vendors] shall be at
liberty to re-sell the land, and all payments
made hereunder shall be absolutely forfeited
to the party of the first part." The respon-
dents sought to enforce this stipulation and to
re-sell the land on the non-payment at the due
date of one of the instalments : — Held, that
the stipulation was in the nature of a penalty
from which the appellant was entitled to be
relieved on payment of the unpaid instalment.
Dagenham Thames Dock Co., In re; Hulse's
Claim (43 L. J. Ch. 261; L. E. 8 Ch. 1022),
followed. Kilmer v. British Columbia Orchard
Lands. Lim., 82 L. J. P.C. 77; [1913] A.C.
319; 108 L. T. 306; 57 S. J. 338; 29 T. L. E.
319— P.C.
Against Member of Parliament.]
Parliament.
See
PENSION.
See also Vol. X. 956, 1785.
Civil Service — Amount of Pension — Dispute
— Decision of Commissioners of the Treasury
— Jurisdiction of the Court.] — Where a Civil
servant has been granted a superannuation
allowance, the decision of the Commissioners
of the Treasury as to the amount thereof is
final and cannot be reviewed by a Court of
law. Cooper v. Reg. (49 L. J. Ch. 490;
14 Ch. D. 311) followed. Yorke v. Regem,
84 L. J. K.B 947; [1915] 1 K.B. 852;
112 L. T. 1135; 31 T. L. E. 220— Lush, J.
1113
PENSION— PEEPETUITY.
1114
Madras CiYil Service Annuity — Retired
Covenanted Indian Civil Servant — Sequestra-
tion—Assignability of Annuity.]— The East
India Annuity Funds Act, 1874, did not put
an end to the Bengal, Madras, and Bombay
Civil Annuity Funds, which by section 1
thereof were authorised to be transferred to
the Secretary of State for India in Council,
and did not incorporate the provisions of the
(Indian) Pensions Act, 1871, so as to make
annuities or pensions payable out of such
funds "pensions granted or continued by
Government ... on account of past services "
within the meaning of section 11 of this latter
Act, which under that section are not liable to
attachment, seizure, or sequestration, and the
assignment of which is by section 12 of the
same Act rendered null and void. Conse-
quently an annuity or pension to which a
Madras Covenanted Indian Civil Servant was
admitted on retirement under section 2 of the
Act of 1874 is not subject to the restrictions
contained in sections 11 and 12 of the (Indian)
Pensions Act, 1871, and is assignable and
liable to be reached by a writ of sequestration
to enforce a judgment in the High Court of
Justice in England. KniJl v. Dumergue,
80 L. J. Ch. 708; [1911] 2 Ch. 199; 105 L. T.
178; 55 S. J. 648; 27 T. L. K. 525— C.A.
Semble, the (Indian) Pensions Act, 1871,
was intended to be confined to British India,
and has no operation in England. 7b.
Old Age Pension— Local Pension Committee
— Central Pension Authority — "Final and
conclusive " — Jurisdiction.] — The appellant
was awarded a pension by the local pension
committee. No appeal was made to the
central pension authority, new facts were
ascertained, and the pension of&cer re-
ported to the local committee that the woman
was not yet seventy ; but the committee
declined to alter their award. The pension
officer then reported to the central pension
authority, which withdrew the pension. The
appellant presented a Petition of Right claim-
ing the pension : — Held, that, the appellant
not having fulfilled the statutory conditions,
one of which was the attainment of seventy,
the order of the local pension committee was
invalid, and that it was competent for the
pension officer to refer the question to the
central pension authority notwithstanding the
words of section 7, sub-section 2, that the
decision of the local pension committee was
to be " final and conclusive." Murphy v.
Regem, 80 L. J. P.C. 121; [1911] A.C. 401;
104 L. T. 788; 75 J. P. 417; 9 L. G. R. 676;
55 S. J. 518; 27 T. L. R. 453— H.L. (Ir.)
Appeal from Local Pension Committee —
Notice of Appeal.] — On an appeal to the Local
Government Board by a pension officer from a
decision of a local pension committee allowing
a pension, it is sufficient that the claimant
should have notice that an appeal has been
brought ; it is not necessary that notice should
be given to him of the time and place of hear-
ing. The Local Government Board have a
discretion as to whether or not they shall hear
in person the claimant and his witnesses.
Per Madden, J. : The claimant should be
given an opportunity of presenting his case to
the Local Government Board in some way
suitable to the character of the enquiry, and
it would probably be in writing. Rex v. Local
Governtnent Board, [1911] 2 Ir. R. 331—
K.B. D.
The question how far the principle of res
judicata applies to applications under the Old
Age Pension Act, 1908, considered. lb.
Local Pension Committee — Committee
not Validly Elected — Quo Warranto.] — The
term of office of a local pension committee
appointed under the Old Age Pension Act,
1908, having expired, a resolution was passed
at a meeting of the county council purporting
to appoint a new committee which included
M. as one of the members. The summons
convening the meeting of the county council
had not, as required by article 36 (10) vi. of
the Schedule to the Local Government
(Application of Enactments) Order, 1898,
specified the appointment of such committee
as business to be transacted at the meeting.
An application having been made for an
information in the nature of a quo warranto
against M., — Held, that, the committee not
having been validly appointed, there was no
existing office, and therefore quo warranto did
not lie. Rex v. McDonald, [1913] 2 Ir. R. 55
—K.B. D.
Qucere, is regulation 21 (31d) of the Old
Age Pensions Regulations, 1908, enabling the
appointing council at any time to remove any
member of the committee, ultra vires'? lb.
PERJURY.
See CRIMINAL LAW.
PERPETUITY.
I. The Rule against, its Scope and
Application, 1114.
II. Limitations, 1116.
III. Powers, 1121.
IV. Charitable Trusts, 1122.
I. THE RULE AGAINST, ITS SCOPE
AND APPLICATION.
See also Vol. X. 957, 1786.
Will — Construction.] — It is not permissible
to construe a gift otherwise than according
to its natural meaning, because if construed
according to its natural meaning it would
offend against the rule against perpetuities,
though possibly, if the gift might equally
well be construed in two ways, one of which
only would offend against the rule, the Court
might, because of the rule, be led to adopt
the other construction. Hume, In re; Public
1115
PERPETUITY.
1116
Trustee v. Mabey, 81 L. J. Ch. 382; [1912]
1 Ch. 693; 106 L. T. 335; 56 S. J. 414—
Parker, J.
Discretionary Trust — Residue.] — A testa-
tor left his residuary estate both real and
personal to his executors and trustees, to be
used and employed by them in their discretion,
so far as it might go, in the maintenance and
keeping up of his dwelling house, with full
power to sell the real estate and devote the
proceeds to keeping up and maintaining his
said residence ; and if it should be necessary
for any reason that the said residence should
be sold, he directed that upon such sale being
completed the residuary estate then remaining
should be divided in equal proportions among
the pecuniary legatees under his will : — Held,
that as there was no definite limit assigned to
the duration of the discretionary trust affecting
the residue it was void as tending to a per-
petuity. Kennedy v. Kennedy, 83 L. J.
P.O. 63; [1914] A.C. 215 ; 109 L. T. 833— P.C.
Gifts of Income — Marriage.] — The following
gift of income held void for remoteness :
First, to the daughters in equal shares should
one of them marry. Secondly, to the sur-
viving daughter in case one dies in the life-
time of the other without leaving issue.
Thirdly, the gift of the 50Z. per annum to
Olive should Evelyn die without children and
Olive be unmarried at the time. Crichtons
Settlement, In re; Sweetman v. Batty,
106 L. T. 588; 56 S. J. 398— Neville, J.
Devise of Real Estate — Trust to Pay off
Mortgage out of Rents — Trust for Sale and
Division when Estate is Clear — Mortgage
Debts Payable by Instalments.] — A testator
devised real estate upon trust out of the rents
to pay off the mortgages thereon and then
upon trust to sell and divide the proceeds
among his children then living and the issue
then living of any of his children then dead.
The mortgage debts were repayable by instal-
ments which if punctually paid would dis-
charge the mortgages within the life in being
at the testator's death and twenty-one years
afterwards : — Held, that, as the trust for sale
and division did not necessarily arise within
the prescribed period, the devise was void for
remoteness. Bewick, In re; Ryle v. Ryle,
80 L. J. Ch. 47; [19111 1 Ch. 116; 103 L. T.
634; 55 S. J. 109— Eve, J.
Voluntary Association.] — Where the object
of an incorporated society is non-charitable,
the fact that the society is a voluntary asso-
ciation will not enable it to take a gift under
a will if the gift is coupled with words which
impose a continuing trust as to its user.
Clifford, In re; Mallam v. McFie, 81 L. J.
Ch. 220; 106 L. T. 14; 56 S. J. 91;
28 T. L. R. 57— Swinfen Eady, J.
Trust for Sale at Expiration of Twenty-one
Years from Date of Deed — Validity — Computa-
tion of Period — Execution of Trust by Original
Trustees.] — A trust arising at the expiration
of a term of twenty-one years from the date
of a deed is not void for perpetuity. By a
settlement dated May 13, 1892, real estate
was conveyed to two trustees on trust that
during a term of twenty-one years from the
date of the settlement they or the survivor of
them or other the trustees or trustee for the
time being (therein after referred to as " the
said trustees or trustee ") should make certain
payments, and that " at the expiration of the
said term of twenty-one years " " the said
trustees or trustee " should sell the property :
— Held, that the term of twenty-one years
determined, and the trust for sale arose, at
the same identical moment ; that on the con-
struction of the deed the day of the date was
included in the term ; and that the trust for
sale was therefore valid and effectual. Semble,
that if the trust had otherwise been invalid
the fact that the two original trustees were
executing it would not have validated it.
English v. Cliff, 83 L. J. Ch. 850; [1914]
2 Ch. 376; 111 L. T. 751; 58 S. J. 687;
30 T. L. K. 599— Warrington, J.
II. LIMITATIONS.
See also Vol. X. 986, 1796.
Void Limitation to Children who Attain
Twenty-five — Subsequent Limitation of Life
Interests — Persons in Being.] — The rule that
a limitation ulterior to or expectant on a
limitation which may infringe the rule against
perpetuities is itself void applies although the
subsequent limitation consists of life interests
only, and although it is to persons in being
at the date when the settlement came into
operation. Thatcher's Trusts, In re (26 Beav.
365), followed. Norton, In re; Norton v.
Norton (80 L. J. Ch. 119; [1911] 2 Ch. 27),
considered. Hewett's Settlement, In re;
Hewett V. Eldridge, 84 L. J. Ch. 715 ; [1915]
1 Ch. 810; 113 L. T. 315; 59 S. J. 476—
Astbury, J.
Vesting — Remoteness — Discretionary Power
in Trustees as to Maintenance.] — The creation
in trustees of a mere discretionary power to
apply the income of an expectant share for
the maintenance or benefit of a beneficiary
with a direction to accumulate the income
not so applied for the benefit of the persons
who ultimately attain a vested interest in
the share in question, is not sufficient to
vest a gift originally given upon attaining a
specified age. Hume, In re; Public Trustee v.
Mabey, 81 L. J. Ch. 382; [1912] 1 Ch. 693;
106 L. T. 335; 56 S. J. 414— Parker, J.
A testatrix bequeathed the sum of 2,000L to
trustees upon trust to pay the income thereof
to her daughter for life, and after the
daughter's death upon trust as to capital and
income for all or any of her children or child
who should be living at her death and being
a son or sons should attain the age of twenty-
three years or survive the survivor of the
testatrix and her said daughter for the period
of twenty-one years, or being a daughter or
daughters should attain the age of twenty-
three years or marry, and if more than one
in equal shares as tenants in common. Two-
thirds of the residuary estate were to be held
upon the like trusts as were declared in respect
of the 2,000L The will contained an advance-
ment clause in the usual form, and also a
1117
PERPETUITY.
1118
clause giving the trustees a discretionary
power to apply the income of the expectant
contingent presumptive or vested legacy or
share of any grandchild of the testatrix under
the trusts of the will for or towards his or
her maintenance, education, or benefit. By a
codicil the testatrix revoked the said bequest
of 2,000/., and in lieu thereof bequeathed to
her said daughter an annuity of 100/. ; but
she directed that when such annuity should
cease her trustees should stand possessed of
the fund appropriated for answering by its
annual income such annuity upon the same
trusts for her said daughter's children or
child as were in the will contained with
reference to the 2,000/. therein bequeathed.
The daughter survived the testatrix and had
children : — Held, that the interests given to
the testatrix's grandchildren in the fund
appropriated to answer the 100/. annuity
mentioned in the codicil and in the two-
thirds of the residuary estate were contin-
gent and not vested interests, and that the
trusts declared in respect of the same in
favour of the testatrix's grandchildren were
void for perpetuity. Fox v. Fox (L. R.
19 Eq. 286) and Turney, In re; Turney v.
Turney (69 L. J. Ch. 1; [1899] 2 Ch. 739),
distinguished. lb.
Will — Estate Tail — Minority of Tenant in
Tail — Trustees' Power to Enter — Implication
of Estate in Trustees — Powers Capable of
being Barred by Tenant in Tail — Trust for
Payment of Incumbrances of other Estates.]
— The testator, the seventh earl, was possessed
of four estates, known as the S., L., C, and
Lancashire estates respectively. By his will
he settled the first two of these estates to uses
in strict settlement in tail male, with re-
mainders in tail general, and he settled the
Lancashire estate by limiting it to trustees
for a term of 1,000 years upon trust to dis-
charge out of the rents incumbrances on the
four estates in the order set forth above,
and subject thereto to the uses declared of
the S. and L. estates. He settled the C.
estate to uses in strict settlement in tail
male to go with the title, and the present
earl, an infant, was now tenant in tail by
purchase of this estate. The will directed
that " if any person who, if this present
proviso had not been herein inserted, would
for the time being be entitled to the posses-
sion or the receipt of the rents and profits
of such settled estate as tenant for life or
tenant in tail, shall be under the age of
twenty-one years, then in such case and so
often as the same shall happen " the trustees
" shall enter into possession or the receipt
of the rents and profits of the same settled
estate, and shall during the minority of such
person continue such possession or receipt of
the rents and profits." The will then gave
the trustees a number of wide powers to be
exercised in this eventuality, including power
to purchase live and dead stock, to cut
timber, to work mines and minerals, to hold
manorial courts, and accept surrenders of
leases ; and directed that they should main-
tain the infant and apply the surplus rents
in the same way as those of the Lancashire
estate. Warrington, J., held that it was
necessary for the proper exercise of the
trustees' powers to imply a legal estate in the
trustees, which estate was not barrable by a
tenant in tail, and, not being limited to the
minority of a tenant in tail by purchase, the
whole of the above clause was void as infring-
ing the rule against perpetuity : — Held, on
appeal, that there was no sufficient ground
for implying a legal estate in the trustees,
and that as the powers conferred on the
trustees were barrable by a tenant in tail,
and as the trust of the rents was for pay-
ment of debts, the clause in question was not
open to objection on the ground of perpetuity.
Stamford and Warrington (Earl), In re; Payne
V. Grey. 81 L. J. Ch. 302; [19121 1 Ch. 343;
105 L. T. 913; 56 S. J. 204; 28 T. L. R. 159
— C.A.
Decision of Warrington, J. (80 L. J. Ch.
281; [1911] 1 Ch. 255), reversed. lb.
Clause Altering Estate Tail to Estate for
Life — Application of.] — The will contained a
clause providing that if any person to whom
an estate tail was given should be born in the
testator's lifetime the testator revoked the
devise made to him, and in lieu thereof
devised the hereditaments comprised in the
devise to the person so made tenant in tail
for his life, with remainder to his son suc-
cessively in tail male, with remainder to his
sons successively in tail general, with re-
mainder to his daughters successively in tail
general : — Held, that, as a matter of construc-
tion, this clause applied as well to the C.
estate as to the S. and L. estates, notwith-
standing that the result might possibly be to
sever the C. estate from the title to the
earldom. lb.
Limitations after Estate Tail — Remoteness
— Rule against.] — Where a will creates limita-
tations to take effect upon the failure or deter-
mination of an estate tail, then, if the persons
to take, although not ascertainable imme-
diately on such failure or determination, are
yet necessarily ascertainable within the period
of a life in being at the death of the testator
and twenty-one years after, such limitations
are valid and are not void for remoteness.
Haygarth, In re; Wickham v. Holmes,
81 L. J. Ch. 255; [1912] 1 Ch. 510; 106 L. T.
93; 56 S. J. 239— Joyce, J.
Gift to Issue — Rule as to Remoteness.] — By
his will the testator gave certain hereditaments
upon trust to pay the rents and profits to his
niece Emily Johnson during her life, and after
her decease for all the children of his niece
who should attain the age of twenty-one years,
and " in case either of them shall die after
attaining the age of twenty-one years the
shares of those so dying shall be equally
divided between their children or issue who
shall attain the age of twenty-one, and in case
there shall be no child or other issue of the
said Emily Johnson who shall attain the age
of twenty-one years, then I direct that the
same hereditaments shall be sold and equally
divided between all the brothers and sisters of
the said Emily Johnson who shall be then
living share and share alike as tenants in
common and the issue of such as shall have
1119
PERPETUITY.
1120
died leaving issue upon attaining the age of
twenty-one years so that children shall in all
cases take their deceased parent's share equally
divided between them " : — Held, that the
limitations, by way of remainder, except to
children of Emily Johnson who should attain
twenty-one years, were void for remoteness.
Johnson, In re; Pitt v. Johnson. 58 S. J. 219
—Joyce, J. Affirmed, 111 L. T. 130:
30 T. L. R. 505— C.A.
Gift Void for Remoteness— Subsequent Gift
over — Alternative and Independent Gift —
Meaning of " without leaving lawful issue as
before mentioned."] — By his will a testator,
after making provision for his nephew R. D.
during his life, gave all the residue of his
property upon trust for the first son of R. D.
who should live to attain twenty-one years of
age and be christened John or take the name
of John Davey (the whole of the principal
fund or capital to be paid over to him on his
attaining that age), and in default of there
being any such sou upon trust for the first son
born of the body of either of the daughters of
E. D. who should attain twenty-one years of
age and should be christened or assume the
name of John Davey as aforesaid, and in
default of there being any such son upon trust
as to one half of the residuary estate for the
first daughter of R. D. who should have
attained the age of twenty-one years, her
executors, and administrators absolutely, for
her sole and separate use, " And as to the
other half thereof . . . And in case of the
death of the said R. D. without having lawful
issue as before mentioned then as to the whole
thereof upon trust " for the charities therein
mentioned. R. D. died in January, 1914,
without having had any issue : — Held, that,
although the gift to the first son of a daughter
of R. D. who attained twenty-one years of
age and the subsequent dependent gift of one
half to the first daughter of R. D. to attain
twenty-one years of age and one haK to charity
•were void for remoteness, yet the ultimate
charitable gift over " in case of the death of
the said R. D. without having lawful issue as
before mentioned " was a valid, independent,
and alternative gift. The words " without
leaving " must either be given their natural
meaning or be construed as " without having
had," and the expression " issue as before
mentioned " meant a son, daughter, or son of
a daughter of R. D., and did not import the
attainment of twenty-one years of age or the
assumption of the name of John Davey.
Davey, In re: Prisk v. Mitchell, 84 L. J.
Ch. 505 ; [1915] 1 Ch. 837 ; 113 L. T. 60— C.A.
Settlement — Real Property — Legal Limita-
tion — Possibility upon a Possibility — Life
Interest to Unborn Person — Yoid Remainder.]
— Land was settled by deed, in the events
which happened, to the use of the widow of
J. F., a bachelor, for life, and then to the
issue of J. F. J. F. married, and died leaving
a widow and one child : — Held, that the
limitation to the issue after the life of the
widow was void as offending against the rule
against double possibilities, which forbids a
limitation to an unborn person for life with
remainder to his unborn child. Frost, In re;
Frost V. Frost (59 L. J. Ch. 118; 43 Ch. D.
246), and Whitting v. Whitting (53 Sol. J.
100) followed. Park's Settlement, In re;
Foran V. Bruce, 83 L. J. Ch. 528; [1914]
1 Ch. 595; 110 L. T. 813; 58 S. J. 362—
Eve, J.
Gift to Future Husband of a Spinster for
Life with Remainder to their Children — Gift
to Children of one Niece — Gift over to the
Children of another Niece — Double Possibili-
ties— Yoid Remainder.] — Where a testator
gave a life interest in one-third of his residue
to his niece I., a spinster, and after her death
the same to be paid to any husband she might
marry for his life, and after the death of both
to hold the one-third in trust for the children
of I. attaining twenty-one, and if the said I.
should die without leaving a child or there
should be no child of the said I. who should
attain a vested interest, then in trust for the
children of another niece S., and I. married
but died without issue, — Held, that in deciding
whether the gift over for the children of S.
was good or void for remoteness, attention
must be concentrated exclusively on the par-
ticular praepositus of the husband or wife of
that praepositus being born at a time, which
might possibly offend against the rule, and
that accordingly on that method of construing
the gift it was good and not void as infringing
the rule against double possibilities. Held,
also, that even if the original gift had been
held to be void, the gift to the children of the
niece S. was good as an alternative and
severable gift. Bullock's Will Trusts, In re;
Bullock V. Bullock, 84 L. J. Ch. 463; [1915]
1 Ch. 493; 112 L. T. 1119; 59 S. J. 441—
Sargant, J.
Park's Settlement, In re; Foran v. Bruce
(83 L. J. Ch. 528; [1914] 1 Ch. 595), not
followed. Decision in Frost, In re; Frost v.
Frost (59 L. J. Ch. 118; 43 Ch. D. 246).
applied. Remarks on Whitting V. Whitting
(53 Sol. J. 100). lb.
Referential Trusts to be Ascertained at
Death of Tenant for Life — Trusts as Ascer-
tained not too Remote.] — A testator devised
his D. estate to trustees upon trust for his
wife for life, and subject thereto and to the
raising of two sums of 4,000Z. each, upon trust
to assure the same " to such uses for such
estates and with and subject to such powers
and provisoes as under and by virtue of " two
deeds dated July 5, 1854, and February 26,
1859, ■' and all mesne assurances, acts, and
operations of law " should at the death of his
wife be subsisting and capable of taking effect
of and concerning the \V. Estate. Shortly
after the testator's death in 1875 there was a
re-settlement of the W. estate, but at the
death of the testator's widow in 1912 there
was nothing in the then subsisting uses,
powers, and provisos of the W. estate which,
if originally inserted in the testator's will,
would have infringed the rule against per-
petuities : — Held, that the referential devise of
the D. estate was not void for remoteness.
Dungannon (Lord) v. Smith (12 CI. & F. 546)
distinguished. Fane, In re; Fane v. Fane,
82 L. J. Ch. 225 ; [1913] 1 Ch. 404; 108 L. T.
288; 57 S. J. 321; 29 T. L. R. 306— C.A.
1121
PERPETUITY.
1122
III. POWERS.
See also Vol. X. 103-2. 1800.
Appointment — Application of Income — Dis-
cretionary Trust — Contingent Interest.] — A
marriage settlement contained a power of
appointment in favour of the issue of the
marriage (in the events which happened) as
the survivor of the husband and wife should
by will appoint. By her will the survivor, in
exercise of this power, appointed two-fifths of
the settled funds to two of her sons upon
trust to apply the whole or so much of the
income thereof as should be required for
making up the total income of her son Walter
to 200/. per annum as they should in their
uncontrolled discretion think proper and bene-
ficial for his support and maintenance, and to
divide the residue of the income, if any, among
her other four sons : — Held, that the interests
declared in the gift were contingent and not
vested, and that the gift was void for
remoteness. Whiteford's Settlement, In re;
Whiteford v. Whiieford, 84 L. J. Ch. 584;
[1915] 1 Ch. 347 : 112 L. T. 577 ; 59 S. J. 272
— Neville, J.
Appointment Yoid for Remoteness — Elec-
tion.]— By a marriage settlement certain trust
funds were settled upon trust for the husband
and wife successively for life, and after their
deaths for such of the issue of the marriage,
whether children or remoter issue, at such
time and in such shares as the husband and
wife should jointly appoint, and in default as
the survivor should appoint, and in default
for all the children of the marriage who should
attain twenty-one or marry, in equal shares.
The husband, who survived his wife, by his
will, reciting his power of appointment under
the settlement, and that no appointment had
been made thereunder, bequeathed both the
property subject to the trusts of the settlement
and other property of his own to trustees upon
trust to pay the income to his daughter for
her life without power of anticipation, and
after her death he directed his trustees to hold
both capital and income in trust for the
children of his daughter as she should appoint,
and in default of appointment for all her
children equally, and he directed that his
daughter should, within such time after his
decease as his trustees and executors might
think proper to appoint, elect in writing
whether she would rely on her rights under
the marriage settlement or take the benefits
provided for her by his will, and in the event
of her not electing to take the benefits pro-
vided for her by his will he directed his
trustees to hold the property upon certain
trusts for the benefit of his son for life, and
after his decease for his children. The
daughter elected to take under the will : —
Held, that, inasmuch as. reading the provi-
sions of the will into the settlement, the
restraint on anticipation of the income of the
settled fund appointed to the testator's
daughter and the trusts in favour of her
children infringed the rule against per-
petuities, she was not bound to elect, and
was not bound by the election made by her.
and that she was entitled to an estate for her
life in the whole fund settled by the settle-
ment free from the restraint on anticipation,
and that on her death it went as in default
of appointment between her and her brother
in equal shares. McCormick, In re; Hazle-
wood V. Foot, [1915] 1 Ir. R. 315— M.R.
Objects Ascertainable after Death of Daugh-
ter and any Husband — Exercise — Appointment
of Absolute Interests.] — A testatrix gave one-
fifth share of her residuary estate in trust for
each of her three daughters for life, and after
the death of each daughter leaving a husband
her surviving for her husband during his life,
with power to each daughter to appoint her
share by deed or will, after the death of each
daughter and any husband with whom she
might intermarry, among her children or more
remote issue living at the death of the survivor
of each daughter and any husband she might
marry. One of the daughters, who survived
her husband, appointed by deed absolute trans-
missible interests to her children : — Held, that
the appointment by the daughter was void for
remoteness; but semble. life interests might
be validly appointed by her under the power.
Norton. In re; Norton v. Norton, 80 L. J.
Ch. 119; [1911] 2 Ch. 27: 103 L. T. 821;
55 S. J. 169— Joyce, J.
IV. CHARITABLE TRUSTS.
See also Vol. X. 1039, 1804.
Holiday Expenses — Workpeople in Mill —
Poor Persons — Section of Public] — A testator
by his will directed the income of certain
shares in a company to be paid to the directors
as a contribution to the holiday expenses of
the workpeople in one of the company's depart
ments. These workpeople were about five
hundred in number and earned from 15s. to
36s. a week : — Held, that the bequest was not
a good charitable gift as it was not for poor
persons or for a section of the public, and that
therefore it was void as being a perpetuity.
Drummond, In re; Ashivorth v. Drummond,
83 L. J. Ch. 817 ; [1914] 2 Ch. 90: 111 L. T.
156; 58 S. J. 472; 30 T. L. R. 429— Eve, J.
Devise of Colonial Real Property — Condition
of Forfeiture — Common Law Condition Subse-
quent— Gift over — Rule against Perpetuities
— Form of Conveyance.] — Real property in
Australia was given to trustees upon trust,
subject to certain life interests, to convey the
same to a charity, but on the express condition
that the charity should annually publish cer-
tain accounts, with a gift over, in default of
such publication, for the benefit of such persons
and for such public purposes as the Governor
of South Australia should in writing direct : —
Held, that the gift over was not charitable
and was void both for remoteness and for
uncertainty. Held, further, that the condi-
tion in the gift to the charity was not a
conditional limitation, but a common law con-
dition subsequent, and void as infringing the
rule against perpetuities. The charity was
therefore entitled to a conveyance with no
reference either to the condition or the gift
over. Da Costa, In re; Clarke v. St. Peter's
Collegiate School, 81 L. J. Ch. 293: [1912]
36
1123
PERPETUITY— POLICE.
1124
1 Ch. 337; 106 L. T. 458; 56 S. J. 240;
28 T. L. R. 189— Eve, J.
Rentcharge for Long Term of Years for
Charitable Purposes — Proviso as to Redemp-
tion— No Limit as to Time of Redemption.] —
By an indenture made in 1747 an annuity or
yearly rentcharge of lol. issuing out of certain
lands was granted to M. J. and J. B., and
the survivor of them, and the executors,
administrators, and assigns of the survivor, for
the term of 999 years from the death of the
grantor, which annuity was subsequently
declared to be upon trust for J. P. or such
other person as for the time being should
have the pastoral care of the congregation of
the dissenting Protestants of C. The inden-
ture contained a proviso that if the heirs,
executors, administrators, or assigns of the
grantor should on any of the days named
for payment of the annuity pay to M. J. and
J. B., or the survivor of them, or the execu-
tors, administrators, or assigns of the sur-
vivor, the sum of 300L in one payment, the
annuity should be no longer payable, but
should determine : — Held, that the proviso
was void as violating the rule against per-
petuities. Donoughmore's Estate, In re,
[1911] 1 Ir. R. 211— Wylie, J.
PETITIONING CREDITOR.
See BANKRUPTCY ; COMPANY.
PHARMACY ACTS.
See MEDICINE.
PHOTOGRAPH.
See COPYRIGHT.
PHYSICIAN.
See MEDICINE.
PICTURES.
Copyright in.] — See Copyright.
PIER.
See SHIPPING.
PILOT AND PILOTAGE.
See SHIPPING.
PLATE GLASS.
See INSURANCE.
PLAYS.
Copyright in.]— See Copyright.
PLEADING.
See PRACTICE.
PLEDGE.
By Agent or Factor.] — See Principal and
Agent.
POISON.
Selling.] — See Medicine.
POLICE.
See also Vol. X. 1049. 1808.
Special Constable — Power to Dismiss.] —
Regulation 6 of the Special Constables Order,
1914, which was made under section 1, sub-
section 1 of the Special Constables Act, 1914.
and which empowers the Commissioner of
Metropolitan Police to dismiss a special con-
stable appointed for the Metropolitan Police
District, is not ultra vires. Metropolitan
Police Commissioner v. Hancock, 82 T. L. R.
95— D.
Special Emergency — Importation of Con-
stables of Another Police Force by Chief
1125
POLICE.
1126
Constable — Power of Police Authority not
Previously Delegated to Chief Constable —
Subsequent Ratification — Power of Chief
Constable to Bind County to Pay for the
Housing and Feeding of Imported Constables
— " Extraordinary expenses necessarily in-
curred by him ... in the execution of his
. . . duty."' — Owing to serious disturbances
in the county of Glamorgan in 1910 the chief
constable took steps to obtain outside assist-
ance, and entered into agreements with
various other police authorities under the
provisions of the Police Act, 1890, whereby a
large number of police from other police forces
were introduced into the district. The power
of the Standing Joint Committee of the
Quarter Sessions and County Council of
Glamorgan, who were the police authority for
that county, to enter into such agreements had
not previously been delegated to the chief
constable, but his action w^as subsequently
ratified by them with regard to all the
imported police except the Metropolitan police.
The plaintiffs incurred expenditure, at the
request of the chief constable and under cir-
cumstances from which a promise of repay-
ment might be implied, in providing board
and lodging for such imported police. The
standing joint committee subsequently repu-
diated their liability to pay. The plaintiffs
then claimed to recover such expenses from
the standing joint committee and the county
council as money expended by them at the
defendant's request; alternatively they claimed
a declaration that the sums were extraordinary
expenses necessarily incurred by the chief
constable in the execution of his duty within
section 18 of the County Police Act, 1839, and
that they were entitled to have the sums paid
by the county council out of the county fund :
Held, that the chief constable, in performing
his duty with regard to the preservation of
order and the protection of life and property
within the county, was entitled in a case of
special emergency to strengthen his own police
force by the addition of constables belonging
to the police force of another police authority,
even although his own police authority had
not delegated to him, under section 25, sub-
section 3 of the Police Act, 1890, their pow-ers
to do so ; and that he was entitled under
section 18 of the County Police Act, 1839, to
recover from the county fund the cost of
providing board and lodging to such police as
being " extraordinary expenses necessarily
incurred by him. ... in the execution of his
. . . duty," subject to the examination and
audit of such expenses by the standing
joint committee. Glatnorgnn Coal Co. v.
Crlamorganshire County Council. Powell
Duffnjn Steam Coal Co. v. Same, 84 L. J. K.B.
812": [1915] 1 K.B. 471; 112 L. T. 598;
79 .7. P. 192; 31 T. L. R. 1.30— Bankes, .T.
Action for Illegal Arrest without Warrant —
Malice.]— By the Glasgow Police Act, 1866,
8. 88, a constable may " take into custody
and convey to the police office any person
who is either accused or reasonably suspected
of having committed ... a penal offence."
In an action against police constables for an
illegal arrest under this section it is sufficient
for the plaintiff to allege in his pleadings that
the defendants acted " wrongfully and illegally
and without reasonable grounds of suspicion,"'
without alleging that they acted " maliciouslv.'"
Shearer v. Shields, 83 L. J. P.C. 216; [1914]
A.C. 808; 111 L. T. 297— H.L. (Sc.)
Judgment of the Court below ([1913] S. C.
1012) affirmed. 76.
" Wilfully obstructing " Constable in Execu-
tion of his Duty — Warning Motor-car Drivers
of Police Trap.] — Police constables were en-
gaged under the orders of their superior officer
in timing the speed of motor cars passing along
a road on which certain distances were
measured off. One of the constables stood
at the commencement and another constable
stood at the end of a measured distance. The
latter constable was provided with a stop
watch, and it was his duty to set the watch
going on receiving a signal from the first con-
stable, and to stop it when a motor car passed,
the object being to ascertain the actual speed
at which the motor cars passed over the
measured distance. While the constables were
so engaged, the appellant, by means of sig-
nals, warned the drivers of certain motor cars
which he saw approaching that the police were
on duty at the measured distance for the
purpose aforesaid. These cars, when so
warned by the appellant, were being driven at
a speed exceeding twenty miles an hour, but
in each case, on the warning being given, the
driver slackened speed, and the cars passed
through the measured distance at less than
twenty miles an hour. Upon an information
charging the appellant under section 2 of the
Prevention of Crimes Amendment Act, 1885.
with obstructing the constable who was
stationed at the end of the measured distance
in the execution of his duty, the Justices con-
victed the appellant : — Held, that there was
evidence upon which the Justices could find
that the appellant was guilty of obstructing
the constable in the execution of his duty, and
that the conviction was therefore right.
Bastable v. Little (76 L. J. K.B. 77 : [1907]
1 K.B. 59) distinguished. Betts v. Stevens.
79 L. J. K.B. 17 ; [19101 1 K.B. 1 ; 101 L. T.
564: 73 J. P. 486; 7 L. G. R. 1052:
22 Cox C.C. 187; 26 T. L. R. 5— D.
Waiting Outside Residence of Prime
Minister to Present Petition — Refusal to Go
Away.] — The appellants assembled in and
near D. Street and Whitehall with the object
of presenting a petition to the Prime Minister.
They were informed that the Prime Minister
could not see them, but they waited on for
several hours outside his house in D. Street
and refused to go away when requested by
the police. Their presence caused numbers of
the public to collect in the streets. As the
appellants refused to go away, they were
arrested and charged with obstructing the
police in the execution of their duty under
section 2 of the Prevention of Crimes Amend-
ment Act, 1885 : — Held, that they were
rightly convicted under that section. Despard
V. Wilcox, 102 L. T. 103; 74 J. P. 115:
22 Cox C.C. 258; 26 T. L. R. 226— D.
Deputation Desiring to Present Petition
to Member of Parliament — Refusal to Receive
1127
POLICE— POOR LAW.
1128
a Deputation — Crowd Collecting in Street —
Refusal of Deputation to Disperse.] — A depu-
tation of eight ladies, consisting of the appel-
lants and six others, went to the Houses of
Parliament with the object of presenting a
petition to the Prime Minister. On their
arrival at St. Stephen's entrance they were
stopped bj' police constables under the com-
mand of the respondent, and they then stood
upon the public footpath over which access to
the entrance is obtained. A police inspector
handed to one of the appellants a letter from
the Prime Minister's private secretary refusing
to receive the deputation. By this time, and in
consequence of the conduct of the appellants
and the deputation, a crowd of fifty or sixty
persons had collected on the pavement,
vehereby St. Stephen's entrance and the access
thereto became obstructed. The respondent
gave orders to the police to clear the pavement
and provide clear access to the entrance. The
appellants were requested by the police to
leave, but they refused to do so, asserting
a right to present a petition to the Prime
Minister ; and in consequence of their refusal
to leave, the obstruction caused by them at
the St. Stephen's entrance and the access
thereto, and their impeding the police in their
endeavours to prevent obstruction to such
entrance and access, the appellants and the
other members of the deputation were
arrested. On a complaint against them for
obstructing the police in the execution of their
duty, the magistrate convicted the appel-
lants : — Held, without throwing any doubt on
the right of a person to present a petition to
a Member of Pai'liament. that the conviction
was right. Pankhurst v. Jarvis, 101 L. T.
946 ; 74 J. P. 64 : 22 Cox C.C. 228 ; 26 T. L. E.
118-D.
Liability of Railway for Acts of Constable.]
— See Lambert v. Great Eastern Railway,
post, col. 1225.
Costs of Prosecution.] — See George v.
Tlionias. ante. col. 799.
Right to Question Prisoner.] — See Rex v.
Wmkel, ante, col. 443.
POLICY.
Of Insurance.] — See Insdeance: Shipping
(Insur.ance).
Contracts in Violation of Public Policy.] —
See Contract.
POOR LAW.
A. Authorities.
1. Guardians, 1128.
2. Assixtarit Overseers, 1128.
:}. Relieving Officer, 1129.
4. Medical Officer, 1130.
B. Settlkment of P.alters, 1130.
C. Removal of Paupers, 1133.
D. Relief and Maintenance of Paupers.
1. Generally, 1134.
2. Offences by Pauper in Workhouse, 1135.
E. Pauper Lunatics, 1133.
F. Rates — See Rates and Eating.
A. AUTHORITIES.
1. Guardians.
See also Vol. X. 1075, 1817.
Power to Assume Parental Control — Condi-
tion Precedent.] — Where guardians desire to
exercise the powers of parental control over
pauper children given to them by section 1,
sub-section 1 (ii.) of the Poor Law Act, 1899,
a resolution to the effect that they are of
opinion that the parent of the child is unfit,
by reason of the existence of some one or more
of the conditions set out in sub-section 1 (ii.)
of the section, is a condition precedent to the
exercise of such power ; and accordingly where
the guardians assumed parental control of
children purported to act under the section,
without having passed such a resolution, the
Court, upon the application of the parent,
granted a writ of habeas corpus directed
against the guardians to release such children.
McGlynn, In re, [1913] 2 Ir. E. 337— K.B. D.
Workhouse Matron — Right to Dismiss
without Notice.] — Poor law guardians have an
absolute power to dismiss the matron of a
workhouse, and are entitled to exercise this
power without previous notice to her.
M' Guigan v. Belfast Guardians (18 L. R.
Ir. 89) followed. Lloyd \. Bermondsey
Guardians, 108 L. T. 716; 77 J. P. 72;
11 L. G. R. 751; 29 T. L. E. 84— Lord
Alverstone, C.J.
Liability for Act of RelicYing Ofificer.] —
See Barns v. St. Mary, L'ilington, Guardians,
post. col. 1206.
2. Assistant Overseers.
Amalgamation of Parishes in Borough —
Alteration in Areas — Remuneration — Payment
by Salary in Lieu of Commission.] — Under
the Hertford (Hertford) Confirmation Order.
1900, five parishes in the borough were amal-
gamated, and in future formed one parish.
Article HI. (2) of the Order provided that —
" Any person holding the ofiice of assistant
overseer in any of the existing parishes shall
hold and execute the like ofiice in and for an
area as nearly as possible the same as before
. . . and upon the same terms as far as
possible as to remuneration ..." The
applicant had, in the years 1892 and 1894
respectively, been elected by the vestry an
assistant overseer of two of the then existing
parishes, pursuant to section 7 of the Poor
Relief Act, 1819, with a remuneration then
fixed at 5 per cent, of the poor rate actually
collected by him. In 1900 the borough
council, to whom the powers of the vestry had
been transferred in 1898, reduced the area in
and for which the applicant collected the poor
1129
POOR LAW
1130
rate, and altered his remuneration for collec-
tion to a fixed salary in lieu of the 5 per cent,
commission. It was admitted that this fixed
salary was as nearly as might be equivalent
to the average sum he was earning at that
time Q900) by his commission for collecting
in both parishes. The applicant claimed that,
having been appointed by the vestry, he had
a right to be paid by commission instead of
by a fixed salary, and that Article III. (2)
of the Order of 1900 did not empower the
borough council to cut down his reiimneration
by paying him a fixed salary with the result
that in future, owing to the increase in rate-
able value of his two former parishes, he would
earn a great deal less than if he were paid
by commission. He accordingly obtained a
rule nisi for mandamus to the overseers to
shew cause why they should not pay him the
balance after taking credit for his salary,
calculated on commission at 5 per cent, on
the amount he might have collected as
assistant overseer of both his former parishes
for the twelve months ended March 31,
1913 : — The Court, in discharging the rule,
held, that upon the true consideratioon of
Article III. (2) the borough council were
empowered, first, to reduce the area of col-
lection; and secondly, to alter the applicant's
remuneration by paying him a fixed salary
which " so far as possible " represented the
amount earned by him at 5 per cent, com-
mission in 1900. Rex v. Hertford Union ;
Pollard, Ex parte, 111 li. T. 716 : 78 J. P. 405 ;
12 L. G. R. 863— D.
In the circumstances the case was not one
in which the Court could exercise its discretion
by granting a mandamus. lb.
Assistant Overseer Clerk to Parish Council —
Guarantee — Defalcations in Accounts as Clerk
not Covered by Policy Given to Guardians in
Respect of Defaulter's Appointment as Assist-
tant Overseer.] — A. was appointed assistant
overseer of the parish of H., and by virtue of
his appointment under section 17, sub-section 2
of the Local Government Act, 1894, he became
clerk to the parish council of H. The defen-
dants entered into a bond guaranteeing the
faithful performance of his duties as assistant
overseer. A. committed defalcations in respect
of moneys received by him as clerk to the
parish council. In an action to recover the
amount of such defalcations under the
guarantee given by the defendants, — Held,
that the defalcations of A. in relation to the
parish council accounts were not covered by
the terms of the bond guaranteeing the faithful
performance of his duties in the office of assis-
tant overseer. Cos ford Guardians v. Poor
Law Guarantee .issociation, 103 L. T. 463;
75 J. P. 30; 8 L. G. R. 995— D.
3. Relievixci Officek.
Superannuation Allowance — Resignation in
Consequence of " Grave misconduct " —
Irregularities in Dealing with Money not of a
Fraudulent Character.]— The plaintiil, who
had been in tiie employment of the defendants
as relieving officer and collector for a number
of years, had been in the habit of retaining
an(' using for his own purpose the moneys
which he collected on behalf of the defendants,
and only paying the sums he had collected in
to the defendants' account every three months.
He did this without any intention of defraud-
ing his emploj-ers. He was told by the defen-
dants that this system must cease and that he
must pay monthly into the account of the
guardians the sums which he collected. He
subsequently, however, reverted to his old
practice, and neglected to pay into the defen-
dants" account monthly moneys which he had
received during the month, and he was not in
a position to repay those moneys until he
received his salary in the following month.
He was thereupon asked to resign. He sent
in his resignation, and subsequently claimed a
superannuation allowance under the Poor Law
Officers' Superannuation Act, 1896, alleging
that he had become incapable of discharging
the duties of his office by reason of permanent
infirmity : — Held, that the irregularities with
regard to the money collected by the plaintiff
on behalf of the defendants amounted to
" grave misconduct " within the meaning of
section 7 of the Poor Law Officers' Super-
annuation Act, 1896, and that, having in
consequence thereof ceased to hold office, he
had forfeited all claim to any superannuation
allowance. The meaning of " grave mis-
conduct " discussed. Poad v. Scarborough
Guardians, 84 L. J. K.B. 209; [1914] 3 K.B.
959 ; 111 L. T. 491 ; 78 J. P. 465 : 12 L. G. R.
1044— C. A.
Liability of Guardians for Act of.] —
See Barns v. St. Marij, Islington. Guardians,
post. col. 1206.
4. Medical Officer.
Public Vaccinator — Superannuation Allow-
ance— " Officer in the service or employment of
guardians" — "Emoluments" of Officer.] — A
pul)lie vaccinator appointed by the guardians
of a union or parish in accordance with the
Vaccination Acts is not an " officer " or "' ser-
vant " of the guardians within the definition
of section 19 of the Poor Law Officers" Super-
annuation Act, 1896, and therefore the emolu-
ments of a public vaccinator who is also dis-
trict medical officer are not to be taken into
account in calculating the amount of super-
annuation allowance to which he is entitled
under that Act. Lawson v. Marlborough
Guardians. 81 L. J. Ch. 525; [1912] 2 Ch.
154: 106 L. T. 838: 76 J. P. 305: 10 L. G. R.
143: 56 S. J. 503; 28 T. L. R. 404— Neville, J.
B. SETTLEMENT OF PAUPERS.
See also Vol. X. 1119. 1823.
Irremovability — Sailor — Children under
Sixteen.]— In 1903 G. H., who was legally
settled in the Doncaster Union, married
M. E. H. From the time of his marriage
until 1913 G. H. served the Crown as a sailor.
Wlien on shore he continuously resided with
liis wife in certain dwelling houses in two
parishes, both in the Mcdway Union. The
I'ldest child of the marriage, O. M. H., was
born in 1904, and thereafter resided con-
tinuously with her parents in the said two
parishes until 1913. A second child, (i. W. H.,
was born in 1908, and thereafter resided
coi\tinuously with his parents in one of the
1131
POOR LAW
1132
said parishes until 1913. During the period
of his residence in the Medway Union G. H.
did not at any time receive parochial relief
on his own account or on account of his wife
and children, nor did he or they become
actually chargeable to the parish. In Feb-
ruary, 1914, the children 0. M. H. and
G. W. H. being in receipt of relief from the
Woolwich Poor Law Union, the guardians of
the poor of that union obtained an order from
a magistrate whereby it was adjudged that the
parish of Doncaster, in the Doncaster Poor
Law Union, was the last legal settlement of
0. M. H. and G. W. H., and whereby the
guardians of the poor of the Doncaster Poor
Law Union were ordered to receive and
provide for O. M. H. and G. W. H. The
Doncaster Union contended that the children
had acquired a settlement in the Medway
Union : — Held, that G. H., being in the
service of the Crown as a sailor, did not, by
virtue of the Poor Removal Act, 1846, s. 1,
at any time during his residence in the
Medway Union, acquire i settlement therein
and a status of irremovability within the
meaning of section 34 of the Divided Parishes
and Poor Law Amendment Act, 1876, but
would always have been removable to his last
legal settlement — namely, the Doncaster Union
— if he had at any time become chargeable
to the parish. The children 0. M. H. and
G. W. H. had not therefore acquired a settle-
ment in the Medway Union or a status of
irremovabilitv. Doncaster Union v. Woolwich
Union, 84 L.".J. K.B. 494; [1915] 1 K.B. 563;
112 L. T. 870: 79 J. P. 213; 13 L. G. R. 451
— D.
Held, also, that the Poor Removal Act.
1795, s. 1, which enacted that no poor person
should be removed from the parish or place
where he or she was inhabiting to the place of
his or her last settlement until he or she
became actually chargeable to the parish or
place in which he or she was then inhabiting,
did not confer any status of irremovability on
G. H. by reason of the fact that he had never
become actually chargeable to the Medway
Union, so as to take him out of the operation
of the proviso to section 1 of the Poor Removal
Act, 1846, and the children out of the operation
of section 1 of the Poor Removal Act, 1848. lb.
Children under Sixteen Li¥ing with Mother
— Wife not Deserted but Living Apart from
Husband — Change of Residence of Wife and
Children — Wife and Children become Charge-
able— Removal of Children but not of Mother.]
— -In 1906 a married woman and her two
infant children went to live in a parish in
the H. Union, where a third child was born.
The husband did not reside there and had a
settlement elsewhere, but the wife was not a
deserted wife. In 1913 the wife and three
children went to reside in a parish in the
C. Union and became chargeable to that union
within one year. The Court of quarter
sessions held that as the wife was not deserted
her last settlement was in the C. Union, but
they ordered the children to be removed to the
H. Union : — Held, that, as the wife was not
a deserted wife and her husband had a settle-
ment elsewhere, neither she nor her children
acquired any settlement in the parish in the
H. Union, and that therefore the children were
not removable from the parish in the C. Union
where they became chargeable. Hambledon
Union v. Cuckfield Union, 84 L. J. K.B. 1265;
112 L. T. 911 ; 79 J. P. 217 ; 13 L. G. R. 491
— D.
Deserted Married Woman — Status of Irre-
movability— Capacity to Acquire Settlement
Apart from Husband.]— A deserted married
woman can acquire a settlement of her own,
and apart from her husband's settlement, by
virtue of the joint operation of section 3 of the
Poor Removal Act, 1861. and section 34 of the
Divided Parishes and Poor Law Amendment
Act, 1876. Opinions of Lord Brampton and
Lord Lindley in Rutherglen Parish Council v.
Glasgow Parish Council ([1912] A.C. 360;
4 Fraser (H.Ii.) 19) not followed. St. Matthew,
Bethnal Green, Guardians v. Paddington
Guardians, 83 L. J. K.B. 43; [1913] 1 K.B.
508 ; 107 L. T. 841 ; 77 J. P. 113 ; 57 S. J. 171 ;
29 T. L. R. 114— C.A.
Decision of Lord Alverstone, C.J., Pick-
ford, J., and Avory, J. (81 L. J. K.B. 747;
[1912] 2 K.B. 335), affirmed. lb.
Unemancipated Child — Settlement by Resi-
dence Acquired Independently of Parent —
Residence in Same Parish — Child having "no
other settlement than" that of Parent.l — Sec-
tion 1 of the Poor Removal Act, 1848, provides
that " whenever any person should have a
wife or children having no other settlement
than his or her own, such wife and children
should be removable from any parish or place
from which he or she would be removable, . . ."
Paddington Union v. Westminster Union,
84 L. J. K.B. 1727; [1915] 2 K.B. 644;
113 L. T. 328; 79 J. P. 343; 13 L. G. R. 641
— D.
An unemancipated son lived for some years
with his parents in the parish of P., and he
and his father respectively acquired legal
settlements in that parish by virtue of such
residence. He was then placed under the care
of a rescue society, and lived in the parish of
E. for a period sufficient to entitle him to
acquire a settlement there by residence. The
father predeceased the mother, but neither of
them acquired a settlement other than in the
parish of P., and both would have been
removable within the meaning of the provision
in the above section from the parish of E.
The son became chargeable as a pauper to
the Union of W. : — Held, that the words
" other settlement than his or her own " in
the above provision meant " settlement in a
different parish from that of the father or
mother," and that an order for removal of the
son to the parish of P., as being the place of
his last legal settlement, was rightly made.
Dicta of Lord Esher, M.R.. and Lopes, L.J.,
in Mitford and Launditch Union v. Wayland
Union' (59 L. J. M.C. 86, 90, 91: 25 Q.B. D.
164, 170, 175). dissented from. 76.
Residence of Child under Sixteen vrith
Deserted Mother — Irremovability.] — A pauper
who was a legitimate child lived with her
deserted mother for more than three years
in a parish in which she thus acquired a
status of irremovability. Before she was six-
teen she left her mother, and had not lived
1133
POOE LAW.
1134
in any other parish long enough to acquire
a settlement. The father, when the pauper
attained the age of sixteen, had acquired a
settlement in another parish : — Held, that the
pauper had, under section 34 of the Divided
Parishes and Poor Law Amendment Act, 1876,
acquired a settlement in the parish in which
she had lived with her mother for three years.
Hackney Union v. Kingston-upon-Hull Incor-
poration, 81 L. J. K.B. 739; [1912] A.C. 475;
106 L. T. 909 ; 76 .J. P. 361 ; 10 L. G. E. 409 ;
56 S. J. 535; 28 T. L. R. 418— H.L. (B.)
Decision of the Court of Appeal (80 L. J.
K.B. 489; [1911] 1 K.B. 748) affirmed. lb.
Child under Sixteen Residing with Pauper
Father — Receipt of Relief by Father — Relief
not Shared in by Child.] — Where a child under
the age of sixteen resides with his father in
a parish under such circumstances that he
would acquire a status of irremovability and,
after a period of three years, a settlement in
the parish, the mere fact that the father has
during that period received poor law relief will
not, in the absence of evidence that the child
has shared in such relief, disqualify the child
from acquiring a settlement in the parish.
Tewkesbury Union v. Upton-on-Severn Union,
83 L. J. K.B. 37; [1913] 3 K.B. 475;
109 L. T. 557; 77 J. P. 9 ; 10 L. G. R. 1019
— D.
Illegitimate Child under Sixteen — Residence
Apart from Mother.] — The word "children"
in the proviso to section 1 of the Poor Removal
Act, 1846, and in the substituted proviso
in section 1 of the Poor Removal Act, 1848,
includes both legitimate and illegitimate chil-
dren. Wooltoich Union v. Fulham Union
(75 L. J. K.B. 675; [1906] 2 K.B. 240) not
followed. Braintree Union v. Rochford Union,
28 T. L. R. 60— D.
The pauper, an illegitimate child, aged
eight and a half years, was born in the parish
of B., in July, 1902, and shortly afterwards
was placed by her mother under the care of
persons residing in the parish of S. in the
respondent union ; and the pauper continued
to reside with those persons in the parish of
S At no time since 1902 had the pauper re-
sided with or been maintained by her mother,
and at no time had the mother acquired a
settlement in any parish in the respondent
union, and at no time had she been irre-
movable therefrom. In January, 1911, an
order of Justices was obtained by the guar-
dians of the respondent union adjudging the
pauper to be settled in the parish of B. in
the appellant union, that being the parish in
which the mother of the pauper was last
legally settled, and in which the pauper was
born : — Held, that the order was rightly
made. lb.
C. REMOVAL OF PAUPERS.
See also Vol. X. 1173, 1827.
Illegitimate Child— Residence in Parish for
Three Years.]— Tlie proviso to section 1 of the
Poor Removal Act, 1846 (as amended by sec-
tioi: 1 of the Poor Removal Act, 1848), which
deals with the removability of " children."
applies to illegitimate children. Fulham Union
V. Woolwich Union (75 L. J. K.B. 675;
76 L. J. K.B. 739; [1906] 2 K.B. 240; [1907]
A.C. 255) and West Ham Union v. St.
Matthew, Bethnal Green, Churchwardens
(63 L. J. M.C. 97 ; [1894] A.C. 230) considered
and explained. Braintree Union v. Rochford
Union, 81 L. J. K.B. 251; 106 L. T. 569;
76 J. P. 41; 10 L. G. R. 40; 28 T. L. R. 60
— D.
Computation of Period of Residence — Mean-
ing of " confined as a patient in a hospital " —
Lunatic] — The main object of an institution
in the parish of L. in the L. Union, called
Nazareth House, and supported by voluntary
contributions, was to provide a home for the
education and training for service of orphan
and deserted Roman Catholic children and a
refuge for the aged and deserving poor ; but
adults between the ages of sixteen and sixty,
whose cases were suitable, were occasionally
admitted as inmates. Inmates were medically
treated and nursed there if occasion arose, and
incurable persons were received ; but such
persons were admitted not on account of their
complaints, but because of other qualifications.
An unmarried woman, thirty-four years of age,
who had acquired a settlement by residence in
the parish of S. in the 0. Union, was received
into the institution on March 6, 1905. She
was of weak intellect and quarrelsome, and at
that time was unable to obtain an ordinary
situation, and was destitute. During her resi-
dence in the institution she gradully grew
worse in health and mind; and ultimately,
becoming violent and dangerous, she was, on
May 24, 1911, sent to the county lunatic
asylum as a pauper lunatic. An order adjudi-
cating her settlement to be in the parish of S.
was appealed against by the guardians of the
0. Union on the ground that by reason of her
residence at Nazareth House she had become
irremovable from and settled in the parish
of L. And on a Case stated by consent under
the Quarter Sessions Act, 1847, — Held, that
the institution was iiot a " hospital," nor was
the pauper lunatic, during her residence there,
" confined as a patient in a hospital " within
the meaning of section 1 of the Poor Removal
Act, 1846, so as to prevent the period of her
residence therefrom being computed in deter-
mining whether she had acquired a status of
irremovability from and a settlement in the
parish of L. ; and the appeal against the
order of adjudication was allowed accordingly.
Ormskirk Union v. Lancaster Union, 107 L. T.
620; 77 J. P. 45 ; 10 L. G. R. 1041— D.
D. RELIEF AND MAINTENANCE OF
PAUPERS.
See also Vol. X. 1833.
1. Generally.
Husband's Failing to Maintain Children —
Existing Order to Pay Wife Weekly Sum and
Giving Her Custody of Children — Liability of
Husband to Maintain Children.] — On the
prosecution of a husband under section 3 of
the Vagrancy Act, 1824, for refusing to main-
tain his children whom he was legally bound
1135
POOR LAW.
1136
to maintain, whereby they became chargeable
to the appellant union, the existence of an
order made by a Court of summary jurisdiction
under the Summarj' Jurisdiction (Married
Women) Act, 1895, that his wife be no longer
bound to cohabit with him, that she should
have the custody of the children, and that he
should pay her a weekly sum, which order,
as to the payment, has not been obeyed by
him, does not rid him of his legal liability to
support the children, and he can be convicted
on the above charge as an idle and disorderly
person. Shaftesbury Union v. Brockicay,
82 L. J. K.B. 22-2 ; [1913] 1 K.B. 159:
108 L. T. 336; 77 J. P. 120; 11 L. G. R. 176;
23 Cox C.C. 818; 29 T. L. R. 144— D.
Running Away and Leaving Children
Chargeable — Address Left by Parent and no
Concealment Attempted.1 — A pauper, having
six children inmates of the workhouse of and
chargeable to the S. Union near London, took
his discharge, and with his children went to
the railway station, half a mile away. From
there he sent his children back to the work-
house (where, being destitute, they were taken
in) with a letter to the master stating that
he was not running away, and giving an
address in London. He was summoned under
section 4 of the Vagrancy Act, 1824, for
running away and leaving his children charge-
able. The Justices dismissed the summons,
finding, upon the principle laid down in
Cambridge Union v. Parr (30 L. J. M.C. 241;
10 C. B. (n.s.) 99), that he had not run away,
since there was no evidence that he had
absconded, or concealed or absented himself
by going a long distance : — Held, that in
taking the view of the evidence which they
took, and in applying the principle referred
to, the Justices could not be said to have been
wrong — the absence of concealment, and the
fact that the man's address was known, being
very material — and an appeal against their
decision was accordingly dismissed. Pallin v.
Buckland, 105 L. T. 197; 9 L. G. R. 544;
75 J. P. 362: 22 Cox C.C. 545— D.
Time within which Proceedings may be
Taken.] — The respondent, whose daughter was
admitted to the workhouse in 1902, absconded
in 1905, leaving his daughter chargeable to the
guardians, and was not discovered till 1909.
when proceedings were commenced against
him under the Poor Law Amendment Act.
1876 : — Held, that the proceedings were out
of time, as the period of two yeai's within
which they must be taken dated from the time
when the respondent absconded — namely, in
1905. AMey v. Blaker. 101 L. T. 682;
8 L. G. R. 1: 73 J. P. 495: 22 Cox C.C. 208
— D.
2. Offenchs by PArPER IX Workhouse.
Unlawful Sexual Intercourse between Two
Paupers in Workhouse — " Misbehaviour. "1 —
T'nlawful sexual intercourse between two
paupers in a workhouse constitutes " mis-
behaviour " within section 5 of the Poor Re-
lief Act. 1815. Holland v. Peacock. 81 L. J.
K.B. 256; [1912] 1 K.B. 154; 105 L. T. 957:
76 J. P. 68; 10 L. G. R. 123 ; 22 Cox C.C. 636
— D.
E. PAUPER LUNATICS.
See a/.vo Vol. X. 1235. 1838.
Warrant for Removal of English-born
Pauper Lunatic from Scotland to England —
Appeal to Local Government Board — Com
petency — Residence of Pauper.] — Under sec-
tion 5, sub-section 1 of the Poor Law (Scot-
land) Act, 1898, whenever a parish council in
Scotland has obtained a warrant for the
removal of an English or Irish-born pauper,
who has neither acquired a settlement by
residence in Scotland nor a status of irre-
movability under section 4 of the Act, the
guardians of the parish to which it is proposed
to remove such pauper have a right of appeal
to the Local Government Board, though such
pauper has not resided continuously in the
parish from which it is proposed to remove him
for not less than one year before the date of
the application for relief. The section applies
to both sane and insane paupers. Edinburgh
Parish Council v. Local Government Board
for Scotland, 84 L. J. P.C. 121: [1915] A.C.
717; 113 L. T. 50; 79 J. P. 289: 13 L. G. R.
918— H.L. (Sc.)
Decision of the Court of Session ([1914]
S. G. 241; 51 Sc. L. R. 192) affirmed. lb.
Computation of Period of Residence — Mean-
ing of "confined as a patient in a hospital"
— Lunatic] — The main object of an institu-
tion in the parish of L. in the L. Union called
Nazareth House, and supported by voluntary
contributions, was to provide a home for the
education and training for service of orphan
and deserted Roman Catholic children and a
refuge for the aged and deserving poor ; but
adults between the ages of sixteen and sixty,
whose cases were suitable, were occasionally
admitted as inmates. Inmates were medically
treated and nursed there if occasion arose,
and incurable persons were received ; but such
persons were admitted not on account of their
complaints, but because of other qualifications.
An unmarried woman, thirty-four years of age.
who had acquired a settlement by residence
in the parish of S. in the O. Union, was
received into the institution on March 6, 1905.
She was of weak intellect and quarrelsome,
and at that time was unable to obtain an
ordinary situation, and was destitute. During
her residence in the institution she gradually
grew worse in health and mind ; and ulti-
mately, becoming violent and dangerous, she
was, on May 24, 1911, sent to the county
lunatic asylum as a pauper lunatic. An order
adjudicating her settlement to be in the parish
of S. was appealed against by the guardians
of the 0. Union on the ground that by reason
of her residence at Nazareth House she had
become irremovable from and settled in the
parish of L. And on a Case stated by consent
under the Quarter Sessions Act, 1847, — Held,
that the institution was not a "hospital,"
nor was the pauper lunatic, during her resi-
dence there, " confined as a patient in a
hospital " within the meaning of section 1 of
the Poor Removal Act, 1846, so as to prevent
1137
POOR LAW— PORTIONS.
1138
the period of her residence there being com-
puted in determining whether she had acquired
a status of irremovability from and a settle-
ment in the parish of L. ; and the appeal
against the order of adjudication was allowed
accordingly. Ormskirk Union v. Lancaster
Union, 107 L. T. 620 : 77 J. P. 45 : 10 L. G. E.
1041— D.
Maintenance — Pauper Lunatic — Guardians
— Contribution by County Council — Time for
Payment — " Net charge upon the guardians "
— "Period of maintenance." — The words
'■ period of maintenance "' in section 24, sub-
section 2 (/) of the Local Government Act,
1888, mean such period as the public authorities
concerned arrange between themselves for
purposes of account. The words " net charge ""
in the same sub-section mean the difference
between the actual cost of the maintenance of
the pauper lunatic during any such period of
maintenance and any sum for the mainten-
ance of the pauper lunatic received, or pay-
ment of which the guardians might have
obtained, during such period. CaJne Union v.
Wilts County Council. 80 L. J. K.B. 548;
[1911] 1 K.B. 717 ; 104 L. T. 607 : 75 J. P.
42; 9 L. G. K. 5— Hamilton, J.
Where guardians, having power to obtain
payment of sums of money for the main-
tenance of a pauper lunatic during several
periods of maintenance, did not exercise such
power, but obtained payment of the aggre-
gate of such sums after the expiration of such
periods, — Held, that on a claim by the guar-
dians against the county council in respect of
sums due for the maintenance of pauper
lunatics under the provisions of the above sub-
section, the county council were entitled to
counterclaim, as for money had and received
by the guardians to their use, payments made
by them to the guardians during each of such
periods in respect of their liability under that
sub-section, which liability would not have
arisen under the provisions of the sub-section
had the guardians exercised such power and
obtained payment of such sums of money as
they became due in respect of each of such
periods, and deducted them from the actual
cost of maintenance during that period. 7b.
Money paj'able to guardians by a county
council under this sub-section, though due
after the termination of each period of main-
tenance, is not payable by them until the pay-
ment has been made lawful according to its
constitution. lb.
Expenses of Maintenance — Weekly Sum
— Reasonable Charges — Order of Justices —
Form of Order." — Tlic funcfions of Justices
under section 287 of the Lunacy Act, 1890, are
judicial and not merely ministerial. Dictum
of Wright, J., in Suffolk Counti) Lunatic
Asylum v. Stow Union (76 L. T. 494), which
was followed in Suffolk County Lunatic
A.'iylum V. Nottingham Union (69 J. P. 120),
overruled. CJamorqan County .Asylum v.
Cardiff Union. 80 L. J. K.B'. 578; [1911]
1 K.B. 437; 103 L. T. 819: 75 J. P. 28;
9 L. G. R. 212— C. A.
Where, therefore, an application is made
under section 287 to two Justices of the county
in which an asvlum is situate for an order for
payment by the guardians of the union to
which any particular pauper lunatic confined
in the asylum is chargeable of the reasonable
charges of the expenses of maintenance of
such lunatic, the Justices are not restricted to
the weekly sum of 14s., which is the maximum
that may be fixed by the visiting committee
under section 283. This latter section is in-
tended primarily to enable the rating authority
to ascertain how much money they ought to
require from the parishes or unions liable to
contribute to the maintenance of the asvlum.
lb.
Although in practice orders under sec-
tion 287 are made ex parte, whenever a larger
sum than 14s. a week is asked for, on the
ground of exceptional circumstances, the
order ought not to be made without notice to
the party chargeable; and every such order.
whether ex parte or on notice, ought not once
for all to fix a sum for the entire period during
which the lunatic is maintained in the asylum,
but until further order only. 76.
Pauper Sent to Asylum from Union of
Residence — Subsequent Admission by Another
Union of Settlement in that Union — Union to
which Lunatic "Chargeable" — Special Ex-
penses of Maintenance. I — Where a pauper
lunatic has been sent from a union to an
asylum in the same county, and during the
residence of the lunatic in the asylum for
upwards of two years the visiting committee
have incurred in respect of his maintenance
expenses exceeding the weekly sums fixed by
the committee, and that union has paid to the
visiting committee the part of such expenses
corresponding to these weekly sums, and
subsequently the guardians of a union in
another county admit that the lunatic has all
along had a settlement in their union, the
Justices of the county in which the asylum is
situate have jurisdiction under section 287 of
the Lunacy Act, 1890, to make, on the applica-
tion of the visiting committee of the asylum,
an order upon the guardians of the last-
mentioned union, as being the union to which
the lunatic is " chargeable " within the mean-
ing of that section, for the balance of the
expenses incurred by the committee. Rex v.
Staffordshire Justices: Ormskirk Union, E.r
parte, 81 L. J. K.B. 894; [1912] 1 K.B. 616:
106 L. T. 579 ; 76 J. P. 177 ; 10 L. G. R. 274;
5n ft. J. 324- C. A.
PORT.
See SHIPPING.
PORTIONS.
See alto Vol. X. 1251, 1841.
Whether Son who Attained Twenty-one and
Predeceased Parents Entitled to Share — Pre-
sumption that Shares Vested at Twenty-one.'
1139
POETIONS.
1140
— A clause in a will provided for the date at
which the interest should vest in the case of
sons — namely, twenty-one. It then provided
for the date of the vesting in the case of
daughters — namely, twenty-one or marriage.
These two provisions were in a continuous
sentence, and at the end of the words dealing
with the case of daughters came the following
passage : "if the same respectively shall
happen after the death of H. L. P. (the
father), but if the same should happen in his
lifetime, then immediately after his death."
The respondent, as mortgagee of H. E. L. P.'s
one-third share of a portion of 6,000Z., claimed
to have a sum of 2,000Z. raised, notwithstand-
ing that H. B. L. P. had died in the lifetime
of his father, H. L. P. : — Held, that, accord-
ing to the canon of construction, it had been
the practice to construe a deed providing por-
tions as vesting the portions at twenty-one,
or in the case of daughters marriage, unless
the deed throughout all its provisions clearly
treated the vesting as contingent on the
portioner surviving the parent, and therefore
the one-third share of the portions sum became
vested in H. E. L. P. on his attaining the
age of twenty-one, and was not contingent on
his surviving his father, H. L. P. Waller v.
Stevenson, 56 S. J. 66— H.L. (E.)
Younger Children — Younger Son becoming
Eldest — " Eldest son " — Time for Ascertain-
ing Eldest Son — Vesting or Distribution —
Eldest Son Entitled to Portion,] — A younger
son in whom a portion becomes vested, and
who subsequently becomes the eldest son before
the portion becomes payable, is entitled to
share in the portions fund if there is enough
in the settlement to shew that the character
of a younger son is to be ascertained at the
time when the portions vest and not at the
time when they become payable. Windham
V. Graham (1 Russ. 331) followed. Wise,
In re; Smith v. Waller, 82 L. J. Ch. 25;
[1913] 1 Ch. 41; 107 L. T. 613; 57 S. J. 28
—Eve, J.
Children " other than an eldest or only son "
— Younger Daughter Debarred from Taking as
a Younger Child — Elder Daughter Taking as a
Younger Child.] — By a settlement executed in
1843 lands were conveyed to trustees to L'E.
for life, with remainder to his sons in tail
male, with remainder, in default of male issue,
as to two of the lands, to his female issue as
L'E. should appoint, and as to the other land
to certain other issue in tail male, with a
power to L'E. to charge the lands with a sum
of 3,000Z. as a provision for the younger child
or children of L'E. By a marriage settlement
executed in 1850 on the marriage of L'E.,
L'E., in pursuance of said power, charged the
said lands with the sum of 3,000/. in favour
of the younger children of the intended
marriage "' other than an eldest or only son."
There were no sons of the marriage. L'E. by
his will appointed the lands over which he had
power of appointment to his younger daughter
in fee-simple : — Held, that the existence of a
son was not required to bring into operation
the provision of the charge for younger chil-
dren ; that the younger daughter, having
taken the bulk of the lands under the limita-
tions of the settlement, was debarred from
taking under the provision for younger chil-
dren, and that the elder daughter alone took
under the said provision. L'Estrange v.
Winniett, [1911] 1 Ir. R. 62— Ross, J.
Younger Children — Younger Son becoming
Eldest after Attaining Twenty-one.] — By a
marriage settlement made in 1860 certain
lands were limited to trustees for a term of
one thousand years upon trust to raise portions
for the children of the marriage " other than
or besides the first or only son or any other
son or sons who before his or their attaining
the age of twenty-one years shall become
entitled under or by virtue of these presents
to the same premises for the first estate in
tail male," if there should be one such child,
the sum of 4,000/., if there should be two such
children, the sum of 6,000/., and if there should
be three or more such children, the sum of
8,000/., and subject thereto the lands were
limited to the use of the husband for life, with
remainder to his first and other sons in tail
male. There were four children of the mar-
riage. M. W. B., the first-born son, attained
twenty-one in his father's lifetime, and died
without having disentailed, and thereupon
E. B., the second son, joined in barring the
entail and re-settling the lands, and on his
father's death became entitled to the settled
estates as tenant for life. Another child died
under twenty-one and unmarried : — Held,
that, according to the true construction of the
settlement, the sum of 8,000/. was raisable
for portions for younger children, and that
E. B. was a younger son for the purpose of
participating therein, and was entitled to be
paid the sum of 4,000/. by the trustees.
Beresford's Settlement, In re; Irvine v. Beres-
ford, [1914] 1 Ir. R. 222— M.R.
Power of Appointment — Special Power —
Appointment Equally by Will among all the
Objects — Subsequent Appointments by Deed-
Poll — Ademption — Rule against Double Por-
tions— "Portion."] — A testator who had a
special power of appointment by deed or will
over a fund of which he was tenant for life,
exercised the power by will equally among
seven objects of the power. By two deeds-poll,
executed subsequently, he appointed two
equal seventh shares to F. and E., two of
the objects of the power respectively, subject
to his life interest. On his death the question
arose, whether the remaining five seventh
shares of the fund were to be divided equally
among the seven objects of the power, includ-
ing F. and E., or whether the shares of F. and
E. under the will were adeemed : — Held, that
the rule against double portions applied, and
that the shares of F. and E. under the will
were adeemed by the appointments to them by
deed. Montague v. Montague (15 Beav. 565)
followed. Peel's Settlement, In re; Biddulph
V. Peel, 80 L. J. Ch. 574; [1911] 2 Ch. 165;
105 L. T. 330; 55 S. J. -580— Joyce, J.
Satisfaction — Rule against Double Portions
— Person in Loco Parentis.] — G. by a volun-
tary deed declared that he, his executors or
administrators, or such other person or per-
sons as he should by deed or will appoint
1141
POETIONS— POWERS.
1142
trustee or tinistees of the deed, should stand
and be possessed of a sum of 6,968Z. 10s. Id.
secured by mortgage upon trust to receive the
annual interest and income, and pay the net
income to his sister E. for life or spinsterhood,
with other limitations in the case of her death
or marriage. The mortgage was a well-
secured first mortgage, and the deed contained
wide powers of investment. G. received the
interest and regularly paid it over to his
sister. By a subsequent will he appointed
trustees and executors and gave them all his
real and personal property upon trust (inter
alia) to pay to his sister E. the interest on
6,500J. for life or until she should marry. The
powers of investment were restricted, and the
subsequent limitations were different from
those of the deed. It was provided by the will,
that if the testator's securities and investments
should so depreciate that they were unable to
pay to his sister E. 180/. a year, she was only
to receive lOOL a year, the balance of the
income of the 6,500Z. to be accumulated for
the benefit of his sons. By a codicil he
increased the gift to his sister E. by 400Z. : —
Held, that assuming the testator had placed
himself in loco parentis to his sister E., and
that there was a presumption of satisfaction,
the presumption was rebutted by the difference
in point of certainty and value between the
obligations of the trust deed and the gift in the
will. Gleeson, In re: Smyth v. Gleeson,
[1911] 1 Ir. R. 113— Barton, J.
POSSESSION.
AdYerse.l — See Limitations (Statute of).
Mortgagee in.] — See Mortgage.
RecOYery of.] — See Landlord and Tenant.
POST OFFICE.
Spr also Vol. X. 13-27, 1850.
Conveyance of Mails by Steamship — Re-
muneration— Amount.] — Upon an application
to determine the amount of the remuneration
to be paid by the Postmaster-General for the
conveyance of mails by the applicants' steam-
ships between Dover and Calais it was agreed
between the parties that the principle laid
down in the case of Great Northern Railway
(Ireland) v. Postmaster- General (13 Ry. &
Can. Traff. Cas. 290) should be followed,
whereljy the cost of service should be first
ascertained, to which should be added a
reasonable sum for profit plus a further
amount, fixed according to circumstances, for
compulsory working ; the difference between
this total and the, actual earnings to be the
sum payable by the Postmaster-General.
South-Eastern and Chatham Railway v.
Postmaster- General, 14 Ry. & Can. Traff. Cae.
21&— Ry. Com.
The basis for fixing the remuneration which
was applied by the Court in Great Northeryi
Railway (Ireland) v. Postmaster- General
(supra) is not to be regarded as an inflexible
principle binding under all circumstances. 76.
" Sent by the post " — Bill of Costs — Delivery
One Month before Action — Posting of Bill.] —
By section 37 of the Solicitors Act, 1843, " no
attorney or solicitor . . . shall commence or
maintain any action or suit for the recovery
of any fees, charges, or disbursements for
any business done by such attorney or solici-
tor, until the expiration of one month after
such attorney or solicitor . . . shall have de-
livered unto the party to be charged there-
with, or sent by the post to or left for him
at his counting-house, office of business,
dwelling house, or last known place of abode,
a bill of such fees, charges, and disburse-
ments " signed by such attorney or solicitor,
or inclosed in or accompanied by a letter
signed in like manner referring to such bill :
— Held (Buckley, L.J., dissenting), that, on
the true construction of the section, if a
solicitor sends his bill by post the posting
must take place at such time that in the
ordinary course of post the bill should have
reached its destination one clear calendar
month before the date on which the action
is commenced. Browne v. Black, 81 L. J.
K.B. 458; [1912] 1 K.B. 316; 105 L. T. 982;
56 S. J. 144; 28 T. L. R. 119— C.A.
Record of Time of Delivery of Telegrams.]
— See Evidence.
Negligence of Sub-Postmaster — Transmission
of Telegram — Liability.] — See Telegraph.
Telegraph — Laying Wires.] — See Tele-
graph.
POWERS.
I. Creation, 1142.
II. Lapse and Interests Undisposed of.
1143.
m. Execution by Devise ob Bequest in
General Terms or Reference to
Power, 1144.
rv. Construction and Extent of
Execution, 1145.
V. Defective Execution, 1148.
VI. Fraudulent Appointments, 1149.
VII. Excessive Execution, 1150.
VIII. Revocation and New Appointment,
1152.
IX. Powers of Charging and Jointuring,
1153.
I. CREATION.
See also Vol. X. 1341, 1853.
Exercise of — Trustees.] — Trustees were to
hold certain parts of the residue of the estate
1143
POWERS.
1144
of a testatrix " upon trust to pay the capital
or income thereof or neither to my nephew
E. or to apply the capital or income thereof
or any part of either for his benefit or for the
benefit of his wife or any child or children of
his as my trustees may in their absolute and
uncontrolled discretion consider desirable " : —
Held, first, that the power or powers thus
created in favour of E., his wife and children,
were conferred on the trustees of the will for
the time being, and not on the original trustees
only. Smith, In re; Ea.stick v. Smith
(73 L. J. Ch. 74; [1904] 1 Ch. 139), followed.
De Sommery, In re; Coelenbier v. De
Sommery, 82 L. J. Ch. 17; [19121 2 Ch. 622;
107 L. T. 823: 57 S. J. 78— Parker. J.
Divisibility — Perpetuity.] — Held, secondly,
that two powers were vested in the trustees
for the time being of the will — namely, (a) a
power of paying either capital or income to
E., which was valid, being capable of being
exercised only during his life ; (6) a power of
applying either capital or income for the benefit
of E., his wife or children, which was void,
being capable of being exercised beyond the
period allowed by law. 7b.
Life Rent with Alternative Powers of
Disposal.] — A father bequeathed to the sur-
vivor of his children a share of the residue
of his estate in life rent, with full power by
mortis causa deed " to dispose of the same
and direct the succession thereto in favour
either of religious or charitable institutions
one or more conducted according to Protestant
principles or of any person or persons whom
such survivor may appoint or partly in favour
of such person or persons all in such terms and
subject to such conditions as such survivor
may think proper." The survivor exercised
this power by a deed of directions in which he
bequeathed this share of residue absolutely to
his wife : — Held (Lord Johnston dissenting),
that the power was valid and had been
validlv exercised. Bannermans Trustees v.
Bannerman, [191.5] S. C. 398— Ct. of Sess.
Semble, that the power of disposal in favour
of " religious or charitable institutions, con-
ducted according to Protestant principles,"
was not void for uncertainty. lb.
II. LAPSE AND INTERESTS
UNDISPOSED OF.
See also Vol. X. 1.378. 185-5.
Change of Investment — Ademption of Ap-
pointed Share.] — A testatrix had under hei
marriage settlement a life interest in 900Z.
Government Three per Cent. Irish Consoli-
dated Annuities, with power to appoint the
same to her children. At the date of her
will the annuities had been sold, and the
proceeds invested in New Zealand bonds. By
her will, after reciting that she was possessed
of New Zealand bonds, amounting to the sum
of 9001. or thereabouts, and bank and other
shares, she bequeathed the New Zealand bonds
and the shares to her daughter, not referring
in any way to the settlement. The New
Zealand bonds were afterwards sold, and the
proceeds invested in Consols, and so remained
at the date of her death : — Held, that the will
was an appointment of the New Zealand bonds
only, and that as they had ceased to form
part of the trust funds at the death of the
testatrix, when the will operated, the appoint-
ment failed, and the trust fund went as in
default of appointment. Brazier Creagh's
Trusts, In re; Holmes v. Langley, [1913]
1 Ir. R. 232— M.R.
III. EXECUTION BY DEVISE OE BE-
QUEST IN GENERAL TERMS OR
REFERENCE TO POWER.
Exercise — Share of Income to Daughter
while Unmarried — Reduced on Marriage —
Codicil Altering Share of Income — Duration of
Payment of Altered Share not Mentioned —
Duration Fixed by Will Implied.] — By a
codicil the testatrix, in exercise of a power
of appointment contained in her marriage
settlement, revoked " that part of my will
which directs that two-thirds of my income
shall be paid annually to my daughter Olive
while unmarried, and directs that three-
fourths — i.e. about 501. — be paid her
annually, and also the remaining 501. should
Evelyn die without children and Olive be
unmarried at the time " : Held, a gift of
three-fourths of the income to Olive while
she remained unmarried. Criclitons Settle-
ment, In re; Sioeeiman v. Batty, 106 L. T.
588; 56 S. J. .398— Neville , J.
General Power — Personal Estate — Exercise
of Power — Will — Bequest of Legacies — Insuffi-
ciency of Assets — Whether Appointment Ex-
tends to Debts as well as Legacies.] — Where
the donee of a general power to appoint a fund
by will gives pecuniary legacies and appoints
executors, and his personal estate, without
the aid of the fund, is insufiicient for the
payment of his debts and the legacies, he
will be taken to have exercised the power
to the extent necessary for payment not only
of the legacies, but also of the debts.
Hawthorn v. Shedden (25 L. J. Ch. 833;
3 Sm. & G. 293) followed and applied. Dictum
of Wickens, V.C., in Davies's Trust, In re
(41 L. J. Ch. 97, 99; L. R. 13 Eq. 163, 166),
approved. Seabrook, In re; Gray v. Baddeley,
80 L. J. Ch. 61; [1911] 1 Ch. 151; 103 L. T.
587 — Warrington, .J.
Special Power — Exercise by Will — Gift of
" all property which I have power to dispose
of by will " — Donee Possessing Two Powers
over Property and Life Interest in it — Rule as
to Exercise of Special Power.] — The best
mode of stating the rule as to the exercise
of a special power of appointment is that there
must be a sufficient expression or indication
of intention in the will or other instrument
alleged to exercise it, and either a reference
to the power or a reference to the property
subject to it constitutes in general a sufficient
indication. Ackerley, In re; Chapman v.
Andrew, 82 L. J. Ch. 260; [1913] 1 Ch. 510;
108 L. T. 712— Sargant, J.
A testatrix having a contingent general
testamentary power of appointment over
1145
POWERS.
1146
property in which she took a life interest, and
also a special power of appointing the income
of the property to her husband during his life,
gave, devised, appointed, and bequeathed " all
my estate property and effects whatsoever and
wheresoever both real and personal which I
have power to dispose of by my will " to her
husband absolutely : — Held, that the will
exercised in the husband's favour the special
power of appointing the income to him,
as well as the contingent general power.
RicJiardson's Trusts, In re (17 L. E. Ir. 436),
distinguished. lb.
Exercise — Use of the Word " Appoint "
— Indications of Contrary Intention.] — A testa-
trix who had a special power of appointment
among her children gave, devised, bequeathed,
and appointed all her real and personal estate
not thereby otherwise disposed of (including
all property over which she had a power of
appointment) unto her trustees upon certain
trusts, including a trust to pay the income to
her husband for life, and after his decease in
trust for all her children in equal shares : —
Held, that the testatrix by dealing with all her
property in the mass could not be considered to
have shewn an intention to exercise her special
power of appointment, although she used
the word "appoint." Sanderson, In re;
Sanderson v. Sanderson, 106 L. T. 26 ; 56 S. J.
291— Neville, J.
Appointment by Will during Coverture —
Death after Determination of Coverture —
Validity of Appointment.] — Where a marriage
settlement contains a power of appointment
" by will during the continuance of the
intended coverture," notwithstanding that the
death of the wife does not take place until
after the determination of the coverture, the
power is validly exercised by an appointment
contained in a will executed by her before the
determination of the coverture. Cooper v.
Martin (L. K. 3 Ch. 47) and Illingioorth, In
re; Bevir v. Armstrong (78 L. J. Ch. 701;
[1909] 2 Ch. 297), discussed. S afford' s
Settlement, In re ; Davies v. Burgess, 84 L. J.
Ch. 766; [1915] 2 Ch. 211; 113 L. T. 723:
59 S. J. 666; 31 T. L. R. 529— Joyce, J.
IV. CONSTRUCTION AND EXTENT OF
EXECUTION.
See also Vol. X. 1468, 1868.
Voluntary Conveyance — Ex post Facto Con-
sideration.]— L. being seised in fee of lands,
by a voluntary settlement executed in May,
1879, granted the lands to trustees to the use
of Ij. for life, with remainder to the use of
trustees of a term of 500 years, upon trust for
raising portions for the younger children of
the settlor, and subject thereto to the use of
the first and other sons of L. successively in
tail, with remainder to his first and other
daughters in tail, with remainders over. The
deed contained a power to L. to appoint to
any woman he might marry for her life, or
any less period, a rentcharge by way of
jointure not exceeding 150L a year, charged
upon all or any of the premises. By a subse-
quent deed executed in August, 1879, and
made in consideration of a marriage after-
wards solemnised, after reciting the deed of
May and the powers of jointuring therein con-
tained, and reciting also an ante-nuptial
agreement to create a rentcharge of 150L from
and after the solemnisation of the marriage
by way of jointure during the life of the
intended wife, and for that purpose to exercise
the power of jointuring in the deed mentioned.
L., in pursuance of the agreement, and in
consideration of the intended marriage, and in
exercise of the aforesaid power and of every
or any other power in any wise him enabling,
appointed to the intended wife and her assigns
during her life a yearly rentcharge of 1501. in
full of her jointure, to be charged upon the
hereditaments comprised in the deed of May,
1879, payable in quarterly payments, the first
payment to be made three months after the
date of the solemnisation of the intended
marriage : — Held, that the power contained in
the settlement of May, 1879, did not authorise
an appointment of a rentcharge to a wife to
take effect in the lifetime of L. Held also,
that the settlement of May, 1879, was not,
on the ground of being voluntary, void as
against the settlement of August so as to give
effect to the rentcharge purported to be created
by the latter settlement to commence from
marriage, inasmuch as the marriage created
an ex post facto consideration for the deed of
May, and the children of the marriage were
within such consideration. Greenwood v.
Lutman, [1915] 1 Ir. R. 266— Barton, J.
Advancement — Protected Life Interest — Re-
lease of Life Interest to Effectuate Advance-
ment — Non-forfeiture — Appointed Share —
Power of Advancement Applicable to Ap-
pointed Share.] — Under a marriage settlement
the husband received a protected life interest
terminable upon his doing or suffering any-
thing whereby it would become vested in some
other person. The husband and wife were
given power to appoint the trust funds among
the children and to make provisions for
advancement in the appointment. The settle-
ment further contained an advancement clause
to the exent of half a share of any child. The
husband and wife appointed a share of the
trust funds by deed to a son subject to their
life interests. This appointment contained no
provision for advancement. Subsequently the
husband and wife authorised the trustees to
advance the son half his appointed share under
the advancement clause in the settlement,
and released their life interests therein to give
effect to the advancement : — Held, first, that
the advancement clause in the settlement
was applicable to the appointed share : and
secondly, that the husband had not forfeited
his protected life interest. Hodgson, In re:
Weston V. Hodgson, 82 L. J. Ch. 31; [1913]
1 Ch. 34; 107 L. T. 607; 57 S. J. 112—
Neville, J.
Power of Appointment among Nephews and
Nieces and other Relations of Donee — Power
of Selection — Default of Appointment — Class
to Take and when to be Ascertained —
Vesting.] — A testator bequeathed all his pro-
perty to his wife in the first place, and after
her death to his " lawful nephews and nieces.
1147
POWERS.
1148
meaning such nephews and nieces and other
relations as she deems fit and suitable."
There was no gift in default of appointment.
The testator's widow by her will left part of
the property to two nieces, and part to a grand
nephew. The remainder of the property was
unappointed. The testator's only next-of-kin
were nephews and nieces, some of whom died
in the lifetime of his widow : — Held, first,
that the power of appointment was a power of
selection, and not a power of distribution, and
that therefore the word " relations " was not
confined to next-of-kin, and that the appoint-
ment to the grand nephew was good ; and
secondly, that the class to take in default of
appointment was confined to nephews and
nieces and other relations, if any, who were
next-of-kin ; and that members of the class
were to be ascertained at the death of the
testator, and took vested interests then. Gun,
In re; Sheehy v. Nugent, [1915] 1 Ir. E. 42
M.R.
Special Power by Will or Deed — Appoint-
ment by Will among all the Objects Equally —
Subsequent Appointments by Deed to Two of
Several Objects of the Power — Ademption —
Double Portions.] — The donee of a special
power to appoint a fund amongst his children,
grandchildren, or other issue, in exercise of the
power by his will appointed the fund to be
equally divided between the children of his
second marriage. There were seven children
of the second marriage. By irrevocable deeds-
poll executed after the will he appointed one-
seventh of the fund to each of two of the
children of the second marriage : — Held, that
the sums appointed, both by deed and by will,
were portions for the purpose of applying the
rule against double portions, and that the
children to whom the appointments were
made by deed were not entitled to share with
the other children under the will. Peel's
Settlement, In re; Biddulph v. Peel, 80 L. J.
Ch. 574; [1911] 2 Ch. 165; 105 L. T. 330;
55 S. J. 580— Joyce, J.
Exercise of Power — Residuary Personal
Estate — Proceeds of Sale of Real Estate not
Included.] — A testator by his will devised
real estate on trust for his daughter E. for
life, and on her death for her children or
remoter issue as she should appoint, and in
default of appointment for her children at
twenty-one or marriage. He gave his residuary
estate on trust for sale and conversion, and
gave the net proceeds of sale to his two
daughters, of whom E. was one, her share
being settled in the same way as the realty
devised on trust for her. She married in his
lifetime, and a portion of the real estate
devised to her was settled on her. As regards
the real estate settled on her the devise was
inoperative, but some real estate was left on
which the devise could operate. E. had six
children, of whom S., a daughter, married.
On her marriage her mother made an appoint-
ment in her favour of one-fifth of one-half of
the residuary personal estate of the testator.
At the date of the appointment E. was a
trustee of the testator's will. The question
was whether, having regard to the recitals in
the deed-poll and subsequent marriage settle-
ment of her daughter, the appointment was to
be construed as an appointment not only of
part of the residuary personal estate of the
testator, but of part of the proceeds of sale
of the real estate over which E. had a similar
power of appointment : — Held, that, accord-
ing to the true construction of the appointment
and settlements, no part of the money arising
from the sale of the real estate was included
therein. Horsfall, In re; Hudleston v.
Crofton, 80 L. J. Ch. 480; [1911] 2 Ch. 63;
104 L. T. 590— Parker, J.
Settlement — Mixed Fund of Personalty and
Realty — Power of Appointment — Exercise of
Power— No Words of Limitation — Equitable
Estates Taken by Appointees — Estates for Life
or in Fee — Intention of Appointor.] — In an
appointment of real estate and of personalty,
subject to a trust to re-invest in real estate,
the omission of the customary words of
limitation does not necessarily limit the
appointment to that of a life estate. Where
the estates dealt with are equitable estates
and there is an apparent intention of the
appointor to pass the whole interest, the
appointees will take in fee-simple. And
where the appointor has apparently distin-
guished between the personalty and realty by
using the words " trust funds and property,"
and where the inference is that he intended
the appointees to take the whole interest in
the personalty, at any rate, the fact that the
personalty is subject to a trust to re-invest in
realty does not make it realty to the extent
of rebutting this presumption. Monckton's
Settlement, In re; Monckton v. Monckton
(83 L. J. Ch. 34; [1913] 2 Ch. 636), approved.
Dearberg v. Letchford (72 L. T. 489) not
followed. Nutt's Settlement, In re; McLaugh-
lin V. McLaughlin, 84 L. J. Ch. 877 ; [1915]
2 Ch. 431: 59 S. J. 717— Neville, J.
Y. DEFECTIVE EXECUTION.
See also Vol. X. 1478. 1874.
Power to be Exercised by Ante-nuptial
Settlement with Consent of Trustees of Will —
Post-nuptial Settlement Executed without Con-
sent and in Ignorance of Power — Possession
— Statute of Limitations.] — By a post-nuptial
settlement made in 1877 between C, the wife,
W., the husband, the trustees of their ante-
nuptial settlement, reciting that C. and her
husband in her right had become entitled to
the absolute interest in certain lands known
as the W. S. estate, a life estate in these
lands was limited to W., if he survived C,
with successive life estates to the three children
of the marriage, with remainders to their
children in tail. All the parties at the time
erroneously believed that the estate had vested
in C. for an absolute estate in fee-simple, as
heiress-at-law of her grand-uncle. In fact,
however, C.'s father, J., had survived this
grand-uncle and was his heir-at-law, and as
such the lands had vested in him for an estate
in fee-simple in remainder subject to certain
prior estates which subsequently determined.
J. had died before C.'s marriage, having made
a will by which he devised all his real estate
to C. for life, with remainder to her first and
1149
POWERS.
1150
other sons in tail male, and he empowered the
trustees for the time being of his will, with
the consent of C, to convey the lands by a
settlement to be made on the occasion of her
marriage to C. and her husband for tlieir joint
lives and the life of the survivor. The will
contained provisions altering the limitations in
favour of C.'s sons in case of her marriage
with a husband entitled to real estate of
certain value. The trustees of this will were
not parties to the settlement of 1877. C. died
in 1882, and W. thereupon entered into
possession of the W. S. estate, and continued
in possession until his death in 1905. The
eldest son of the marriage had died in 1900,
and on the death of W., the second son, E.
(who was entitled to a life estate under the
settlement and to an estate tail, if not barred
by the Statute of Limitations, under the will),
entered into possession. R. was entitled to an
estate in certain other lands, and after his
father's death he executed a disentailing deed
which contained general words barring all his
estates tail. He died in 1907, having made a
will devising all his lands to his wife, through
whom the plaintiffs claimed as assignees in her
bankruptcy. On the death of R., the defen-
dant, the third child of the marriage of W.
and C, went into possession of the W. S.
estate, she being entitled under the settlement
to the next life estate. Until shortly before
the bringing of the present action all parties
believed that the settlement of 1877 was a
valid settlement. The action sought a declara-
tion that the plaintiffs were entitled to the
W. S. estate in fee-simple, and an order that
the defendant should deliver up possession to
them, the plaintiffs claiming under the will of
J. and through R. : — Held, that the settle-
ment of 1877 was not a good execution of the
power given by J.'s will, inasmuch as it was
not executed on the occasion of C.'s marriage,
and the trustees of that will were not parties
to it ; that the possession of W. was therefore
wrongful, and that although having entered
under the settlement he would have been
estopped from repudiating any of the limita-
tions created by it, his possession operated
under the Statute of Limitations to extinguish
the title of his eldest son to the estate tail
given by J.'s will, and consequently also the
title of R. to the subsequent estate tail under
that will, and that the plaintiffs had no right
to possession. Frazer v. Riversdale, [1913]
1 Ir. R. 539— Ross, J.
VI. FRAUDULENT APPOINTMENTS.
See also Vol. X. 1495, 1875.
Appointment Made on Condition.] — An ap-
pointment made in pursuance of a power given
by a settlement in favour of objects of the
power, subject to a defeasance in case a condi-
tion is performed, such condition not being one
to be performed by the appointees, but to be
performed if at all by third parties, over whose
actions the appointees had no control, with
the intention that upon the performance of the
condition the funds should go upon the trusts
limited by the settlement in default of appoint-
ment, is not invalid as being a fraud on the
power, there lieing no intention to secure a
benefit for some person not an object of the
power. Perkins, In re; Perkins v. Bagot
(62 L. J. Ch. 531; [1893] 1 Ch. 283), and
Stroud V. Norman (23 L. J. Ch. 443 ; Kay, 313)
distinguished. Vatcher v. Paull, 84 L. J.
P.C. 86 ; [1915] A.C. 372 ; 112 L. T. 737— P. C.
Yoid Stipulation — Condition that Appointee
should Pay off Debts of Appointor — Severance
of Condition and Appointment.] — A testator
bequeathed to his son a life interest in a fund,
with power to appoint by will a life interest in
the whole or any part of the income to any
wife who might survive the appointor. The
appointor exercised the power by appointing
to his wife an annuity and (in case he should
die insolvent) a further annuity ; and he
directed that ch;.^ further annuity was to be
paid to her only on condition that she spent
a slightly smaller sum yearly in paying off the
appointor's debts : — Held, that the appoint-
ment of the further annuity could not be
severed from the condition, and that in respect
of the further annuity the execution of the
power was fraudulent and void. Cohen, In re;
Brookes v. Cohen, 80 L. J. Ch. 208; [1911]
1 Ch. .37 ; 103 L. T. 626 ; 55 S. J. 11— Joyce, J.
Appointment Yoid or Voidable — Purchaser
for Value without Notice — Legal Estate. 1 —
An appointment under a common law power
or a power operating under the Statute of Uses
by which the legal estate has passed to the
appointee is voidable only, and a purchaser for
value with the legal estate and without notice
is not affected by the fraudulent execution of
the power ; but a fraudulent appointment
under an equitable power not operating so as
to pass the legal estate or interest is void and
a purchaser for value without notice, but with-
out the legal title, can only rely on such
equitable defences as are open to purchasers
without the legal title who are subsequent in
time against prior equitable titles. When no
legal estate has passed there can be no ratifica-
tion or confirmation of an appointment void in
equity. Cloutte v. Storey, 80 L. J. Ch. 193;
[1911] 1 Ch. 18; 103 L. T. 617— C. A.
VII. EXCESSIVE EXECUTION.
See also Vol. X. 1.517, 1877.
Invalidity of Ultimate Appointment to an
Object of the Power.] — The donee of a power
of appointment among her three children
appointed the property to a person not an
object of the power for life, and after his
decease to other persons not objects of the
power, and in case none of the said persons
should live to take the property, then she gave
the same to an object of the power. Two of
the persons who were not objects of the power,
but in whose favour the testatrix purported to
make an appointment, survived the testatrix :
— Held, that the ultimate limitation to an
object of the power, being dependent on the
former void appointments, failed. Enever's
Trusts, In re; Power v. Power. [1912]
1 Ir. R. 511— Ross, J.
Objects and Non-objects — Ascertainment at
Period of Distribution — Severance — Valid Ap-
1151
POWEES.
1152
pointment quoad Objects.] — The donee of a
power to appoint a fund in favour of her own
children or issue living at her death appointed
the fund among such of her children as should
attain the age of twenty-one years or heing
daughters should marry under that age, but
she directed that the share of any daughter
should be held on trust for such daughter for
life, and that after the death of such daughter
the share should be held (in defaiilt of and
subject to a power of appointment which was
invalid) in trust for the child or children of
such daughter who should attain the age of
twenty-one years or being daughters should
marry under that age : — Held, that the
appointment to the children of a daughter was
not invalid in toto, but only as regards such
of the appointees as were not living at the
death of the donee of the power, and that on
the death of the daughter her funds must be
divided into as many shares as tliere were
members of the appointed class, and that each
appointee who was living at the death of the
donee of the power would take one share of the
fund, while the remaining shares would go
under the original appointment to the daughter
absolutely. Sadler v. Pratt (5 Sim. 632),
Harvey v. Stracey (22 L. J. Ch. 23; 1 Drew.
73), and Farncomhe's Trusts, In re (47 L. J.
Ch. 328; 9 Ch. D. 652), followed. Witty,
In re; Wright v. Robinson, 83 L. J. Ch. 73:
[1913] 2 Ch. 666; 109 L. T. 590: 58 S. J. 30
— C.A.
Delegation of Power — Invalidity.] — A testa-
tor, by his will, settled a fund upon trust for
his daughter for her life, wnth remainder to
her issue, " for such interests in such propor-
tions and in such manner in all respects as
she should by deed or will appoint." The
daughter, by her will, in exercise of this power
of appointment, appointed the trust fund to
trustees in trust for her children equally, and
in trust to pay to each child the income of
its share for the period of twenty-one years
from the testatrix's death; and if any child
should die within this period, without leaving
issue and without exercising a general power
of appointment given to it by the will, its
share was to accrue to the shares of the other
children. Any child leaving issue or surviving
the period, took absolutely. The testatrix
further empowered the trustees, in their
absolute discretion, at any time during the
period, to transfer the share of any son who
should attain twenty-one, or any part of it, to
him : — Held, that this power was a delega-
tion by the testatrix of her power over the
devolution of the estate, and was therefore
invalid. Joicey, In re; Joicey v. Elliott,
84 L. J. Ch. 613; [1915] 2 Ch. 115; 113 L. T.
437— C.A.
Qucere, whether a power of advancement
might be delegated. lb.
Unauthorised Conditions — Severance of Con-
dition from Appointment — Validity of Appoint-
ment.]— Where A had a power of appointment
by will in favour of her husband over cer-
tain funds " upon such conditions and with
such restrictions as she should think fit," and
she appointed by will the income of the
funds to her husband during his life for his
absolute use, provided that he should acquiesce
in the several dispositions contained in her
will and pay certain annuities to her nieces,
and she left the residue of her own personal
estate to her husband, — Held, first, that the
desire of the testatrix to benefit her husband
was the real motive and object of the appoint-
ment; and secondly, that the appointment was
good, but the condition imposed upon the hus-
band was nugatory. Perkins, In re; Perkins
V. Bagot (62 L. J.'Ch. 531; [1893] 1 Ch. 283),
and Cohen, In re; Brookes v. Cohen (80 L. J.
Ch. 208; [1911] 1 Ch. 37), distinguished.
Holland, In re; Holland v. Clapton, 84 L. J.
Ch. 389; [1914] 2 Ch. 595; 112 L. T. 27—
Sargant, J.
The question whether such conditions as
these can be disregarded, or whether they
render the appointment itself void, is one of
fact and of inference rather than of law. lb.
Maintenance of Infant — Infants Contin-
gently Entitled — Delegation of Discretionary
Power — Maintenance out of Appointed
Share.] — An attempt by the douee of a power
of appointment amongst children to empower
trustees to apply the income of expectant
shares of the appointed fund towards the main-
tenance of the children is void as amounting
to a delegation of the power. Greenslade,
In re; Greenslade v. McCowen, 84 L. J. Ch.
235 ; [1915] 1 Ch. 155 ; 112 L. T. 337 ; -59 S. -T.
105— Eve, J.
Semble, the provisions for maintenance and
education and for advancement usually in-
serted in settlements do not in general apply
to an appointed share, such share being by the
appointment withdrawn from the general
operation of the settlement. lb.
VIII. REVOCATION AND NEW
APPOINTMENT.
See also Vol. X. 1-565. 1881.
Release and Revocation — Benefit of
Appointor — Fiduciary Relation — Validity.] —
By a marriage settlement the husband and
wife settled trust funds, including two policies
of life assurance, upon trust for the wife for
life, and then for the husband for life, and
then to the children, as they should by deed,
with or without power of revocation, jointly
appoint, and subject thereto as the survivor
should by deed or will appoint. The settle-
ment contained a covenant by the husband to
pay the premiums on the policies, and a power
to the trustees, with the consent of the wife,
to apply the income or capital of the trust
funds for the same purpose at their discretion.
The husband and wife by deed jointly ap-
pointed the settlement funds subject to their
life interests upon trust for their only child for
life and then for her children, reserving a
power of revocation thereunder to the husband
and wife or the survivor. Upon the death of
the husband the widow, who had for some
years paid the premiums on the policies,
1153
POWEES— PRACTICE.
1154
claimed a lien on the policy moneys for the
amount so paid : — Held, that the wife had
paid the premiums voluntarily, and had no
lien on the policy moneys. The wife and her
daughter (who was a spinster) wrote to the
trustees that if she was not entitled as of
right to a lien on the policy moneys she would
revoke the existing appointnaent to the daugh-
ter and release her power of appointing other
than to the daughter, and then would direct
repayment of the premiums by the trustees to
her out of the policy moneys : — Held, that the
power to revoke was a fiduciary power, and
could not be exercised otherwise than in
accordance with the purpose and objects of the
original power ; and that the trustees ought
not to pay upon a revocation, release, and
request made with the avowed object of bene-
fiting the appointor. Leslie, In re; Leslie v.
French (52 L. J. Ch. 762; 23 Ch. D. 552),
discussed. Somes, In re; Somes v. Somes
(65 L. J. Ch. 262; [1896] 1 Ch. 250), distin-
guished. Jones's Settletnent, In re; Stunt v.
Jones, 84 L. J. Ch. 406; [1915] 1 Ch. 373;
[1915] W.C. & I. Eep. 277; 112 L. T. 1067;
59 S. J. 364— Astbury, J.
Power to Tenants for Life Jointly by Deed
and to Survivor by Will — Joint Appointment
— Power to Both or Survivor to Revoke by
Deed — Revocation and New Appointment by
Survivor by Deed.] — By a marriage settle-
ment a power of appointment over real and
personal property was given to the husband
and wife during their joint lives by deed with
or without power of revocation and new
appointment, and in default of such appoint-
ment a power of appointment by will or codicil
was given to the survivor. By a deed-poll of
1889 they exercised the power, reserving to
themselves or the survivor of them the power
to revoke by deed the appointment thereby
made. By a deed-poll of 1910 the survivor
purported to revoke such appointment and to
make a new appointment : — Held, that the
revocation was valid, but that the new appoint-
ment was invalid. Weightman's Settlement,
In re: Astle v. Wainwright, 84 L. J. Ch. 763;
[1915] 2 Ch. 205; 113 L. T. 719; 31 T. L. E.
480— Joyce, J.
IX. POWER OF CHARGING AND
JOINTURING.
See also Vol. X. 1-573, 1884.
Power to Appoint Clear of all Charges and
Outgoings whatsoever — Liability to Estate
Duty.] — In exercise of a power under a settle-
ment whereby C. was empowered to appoint
by way of jointure to his wife an annual sum
not exceeding 3,000/. clear of all charges and
outgoings whatsoever, C. executed a settle-
ment appointing the said sum, not expressly
clear of all charges and outgoings. On the
death of C.,—Held, that the jointure so
appointed was clear of all charges and out-
goings, and therefore free from estate duty.
Cadocjan's (Earl) Settlements, In re ; Richmond
V. Lambton, 56 S. J. 11— Joyce, J.
PRACTICE.
A. In the High Court of Justice.
I. Parties to Actions and Proceedings bt
AND AGAINST PARTICULAR PERSONS.
a. Joinder of Parties, 1155.
b. Unauthorised Proceedings, 1157.
c. Adding Parties, 1157.
d. Representation of Parties, 1158.
II. Action for Declaration, 1160.
III. Joinder of Causes of Action, 1161.
IV. Writ of Summons.
a. Form and Contents of, 1162.
b. Service of Writ, 1162.
c. Service out of the Jurisdiction, 1164.
V. Proceedings in Default of Appearance,
1166.
VI. Judgment under Order XIV., 1166.
VII. Intermediate Proceedings.
a. Payment of Money into and out of
Court, 1167.
b. Staying and Setting Aside Proceedings.
1. Generally.
(a) When Proceedings Frivolous
or Vexatious, 1168.
(b) Pendency of Actions Abroad,
1168.
(c) Two or more Actions in this
Country, 1169.
(d) Other Grounds, 1170.
2. On Winding up of Companies.—
See Company.
3. On Bankruptcy. — See Bankruptcy.
4. Pending Appeal. — See Appeal.
5. Where Agreement to Refer. — See
Arbitration.
c. Particulars, 1171.
d. Security for Costs, 1173.
e. Preservation and Inspection of Property,
1174. '
f. Receiver, 1175.
Vin. Trial, 1175.
IX. New Trial, 1178.
X. Judgments and Orders.
a. Generally, 1179.
b. Declaratory Orders, 1181.
c. Setting Aside and Impeaching, 1182.
d. Varying and Amending, 1183.
e. Examination of Judgment Debtor,
1183.
/. Enforcing Performance, 1184.
XI. Motions and Rules, 1184.
XII. Summonses, 1185.
Xni. Funds and Securities in Court, 1186.
XIV. Time, 1187.
XV. Pleading.
a. Generally, 1188.
b. Amending and Striking Out
Pleadings, 1188.
XVI. Proceedings under Courts (Emergenci
Powers) Act, 1914, 1189.
37
1155
PRACTICE.
1156
B. In the House of Lords. — See Appeal.
C. In the Court of Appeal. — See Appeal.
D. In the Probate, Divorce, and Admiralty
Division. — See Husb.\xd and Wife ;
Shipping ; Will.
E. In Bankruptcy. — See Bankruptcy.
F. In the Privy Council. — See Colony.
G. In the County Court. — See County
COUET.
A. IN THE HIGH COURT OF
JUSTICE.
I PAETIES TO ACTIONS AND PROCEED-
INGS BY AND AGAINST PARTICULAR
PARTIES.
a. Joinder of Parties.
See also Vol. XI. 37, 1744.
Joinder of Defendants — Action for Libel —
Severing Damages. 1 — The plaintiff claimed
damages in respect of a libel from two defen-
dants who joined in their defence. The jury
found a verdict for the plaintiff, assessing the
damages at 500/. — 495L against one defendant
and 51. against the other -.—Held, that the
jury had no power in such a case to sever the
damages and that judgment was properly
entered for 500/. against both defendants.
Damiens v. Modern Societtj, Lim. , 27 T. L. R.
164— Grantham. J.
Separate Causes of Action — Alternative
Relief — Several Defendants.] — Rule 4 of
Order XYI.— which provides that " all persons
may be joined as defendants against whom
the right to any relief is alleged to exist,
whether jointly, severally or in the alternative "
— when read in connection with rule 1 of that
Order, is not confined in its operation to
joinder of parties, but extends also to joinder
of causes of action, so that persons may now
be joined as defendants who are alleged to
be liable in respect of causes of action which
are not necessarily limited to the same exact
state of facts, contracts, and circumstances as
shewing liability, and in respect of which
relief is claimed by the plaintiff in the alter-
native. Compania Sansinena v. Houlder,
79 L. J. K.B. 1094; [1910] 2 K.B. 354;
103 L. T. 333; 11 Asp. M.C. 525— C. A.
Smurthwaite v. Hannay (63 L. J. Q.B. 737 ;
[1894] A.C. 494), Sadler v. Great Western
Railway (65 L. J. Q.B. 462; [1896] A.C. 450),
Frankenburg v. Great Horseless Carriage
Co. (69 L. J. Q.B. 147; [1900] 1 Q.B. 504),
and Bullock v. London General Omnibus Co.
(76 L. J. K.B. 127 ; [1907] 1 K.B. 264) dis-
cussed, lb.
Claim for Damages.] — The plaintiff had
a right of way over a certain lane. The defen-
dants were severally the occupiers of two sets
of premises approached by the lane, and the
plaintiff alleged that the heavy traffic brought
by them along the lane caused vibration which
caused cracks to appear in his house, that the
noise of the waggons creaking and grating on
his garden wall constituted a nuisance, that
the surface of the lane was cut up and his
right of way interfered with, and that on two
occasions his wall had been knocked down by
the waggons. The plaintiff claimed an injunc-
tion and damages against both defendants : —
Held, that the action could not be maintained
in this form, and that one of the defendants
must be struck out. Munday v. South Metro-
politan Electric Light Co., 57 S. J. 427;
29 T. L. R. 346 — Swinfen Eady. J.
" Necessary or proper " Party to Action
against Person vsrithin Jurisdiction — Parties —
Joinder of Defendant — Separate Cause of
Action — Similar Circumstances. 1 — The altera-
tion made in 1896 in Order XYI. rule 1, by
virtue of which it has been made to allow of the
joinder in one action of plaintiffs having separate
causes of action arising out of the same trans-
action and involving any common question of
law or fact, is not limited to that rule, but
extends by implication to the other rules of
that Order; and, consequently, under rule 4
persons may now be joined as defendants in
one action in respect of separate causes of
action arising out of the same transaction and
involving some common question of law or
fact. 0 ester reichische Export vorm. Janowitzer
V. British Indemnity Co., 83 L. J. K.B. 971;
[1914] 2 K.B. 747 ; 110 L. T. 955— C. A.
By a contract of marine insurance made
at Antwerp in the French language between
the plaintiffs, merchants in Vienna, and two
insurance companies, the B. Co., which was
registered in England, and the S. Co., which
was registered in Scotland, goods of the plain-
tiffs were insured on transit from Vienna to
Valparaiso via Antwerp for 1,690 francs. In
the contract it was declared that the companies
insured respectively the amounts or parts
stated by each of them at the foot of the con-
tract, and at the foot of the contract appeared
the names of the two companies, each being
described as "of London," the sum of "845
francs" written opposite the name of each
company together with a statement that the
companies insured in halves for the total sum.
and the signature of the contract by the com-
mon general agents of the two companies on
their behalf. Both the companies had a
common office and secretary in London, from
that office all the letters from both companies
relating to the insurance were written, and
in these letters that office was described as
the " head office " of both companies. The
plaintiffs having issued a writ of summons
against both companies in respect of alleged
losses under the contract, and having served
it upon the B. Co. within the jurisdiction,
applied, under Order XL rule 1 (g) for leave
to serve it upon the S. Co. out of the juris-
diction in Scotland : — Held, that, even though
under the contract the two companies were
only severally liable for separate moieties of
the total sum insured, and that the plaintiffs'
cause of action against the S. Co. was separate
from his cause of action against the B. Co..
yet, the circumstances in which the causes
of action respectively arose being similar,
the S. Co. might be joined as defendants in the
1157
PRACTICE.
1158
action against the B. Co. under Order XVI.
rule 4; and, that being so, that the S. Co.
were " proper " parties to the action against
the B. Co. within the jurisdiction within the
meaning of Order XI. rule 1 (g). and therefore
that service upon them out of the jurisdiction
might be allowed under that sub-rule. lb.
b. Unauthorised Proceedings.
Action Brought in Name of Company with-
out Authority — Stay — Costs.] — The defendant
and O. were the sole directors of and holders
of an equal number of shares in the plaintiff
company. 0. alleged that the defendant as a
director was doing something which was
injurious to the company, and thereupon an
action was brought against him in the name
of the company, at the instance of 0., asking
for his removal from the office of director, and
in the alternative for an injunction restraining
him from dealing with or so conducting the
company's business as to injure or jeopardise
its goodwill. There had been no resolution of
the company or directors authorising the
bringing of the action, and from the con-
stitution of the board it was known that no
authority could be obtained : — Held, on motion
by the defendants, that the name of the com-
pany should be struck out as plaintiffs, and
that the action should be stayed; and, further,
that the plaintiffs' solicitors should be ordered
to pav the costs of the action. West End
Hotels Syndicate v. Bayer, 29 T. L. E. 92—
Warrington, J.
c. Adding Parties.
See also Vol. XI. 50, 57, 174fi.
Revivor — Summons to Add Plaintiffs — Con-
sent.]— A person cannot be added as plaintiff
in an action without the consent of the
plaintiff on the record. Pennington v. Cayley
(No. 1), 106 L. T. 591— Neville, J.
Evidence Required on Summons.] —
Semble, an application to carry on proceedings
under Order XVII. rule 4, if made by sum-
mons, instead of by petition or motion of
course, must be supported by evidence. lb.
Foreclosure Action — Plaintiff Trustees —
Foreclosure Absolute — New Trustees after
Foreclosure — Re-opening Foreclosure — Revivor
— Addition of Parties — Notice of Intention to
Proceed.] — The public oflicer and estate
trustees of an insurance company brought a
fori'closure action against a mortgagor and
subsequent incumbrancers, and an order for
foreclosure was made absolute in 1907. Two
of the trustees died after that date, and new
trustees were appointed in their places. W.,
one of the defendants to the action, desired to
re-open the foreclosure, and presented a peti-
tion of course for an order of revivor. An
order was made in chambers that all future
proceedings should be carried on between W.
as plaintiff and the surviving defendants and
all the present trustees as defendants : — Held,
on a motion to discharge that order, that under
the modern practice there could not be a
revivor, and that W. should have applied to
the trustees for their consent to the new
trustees being added as plaintiffs, and that in
the event of their refusal W. should have
applied under Order XVII. rule 4 to have
them added as defendants. Pennington v.
Cayley (No. 2), 81 L. J. Ch. 522; [1912] 2 Ch.
236; 107 L. T. 116; 56 S. J. 550— Swinfen
Eady, J.
Tenant Added by Amendment as Co-plaintiff
with Reversioner.] — Where the gist of an
action was whether a house had been rendered
unfit for habitation by the erection of the
garage, as no new course of action was sought
to be substituted, an amendment on the usual
terms as to costs was allowed in order to add a
tenant as co-plaintiff. Walcott v. Lyons
(54 L. J. Ch. 847 ; 29 Ch. D. 584) distinguished.
White V. London General Omnibus Co.,
.58 S. J. 339— Sargant, J.
Beneficiaries against Trustees — Trustees
Nominal Defendants.] — An objection as to
parties raised by a defendant — where other
defendants who were trustees had the legal
estate, and the claim was by beneficiaries
under the trust to have a transaction, pur-
porting to be a sale, declared to be a mortgage,
with power in the trustees to redeem — that
such defendant trustees ought to be co-plain-
tiffs with the beneficiaries, was successfully
sustained at the trial, although not raised in
the defence of the objecting defendant.
Walters v. Green (68 L. J. Ch. 730; [1899]
2 Ch. 696) and Chili Republic v. Rothschild
([1891] W. N. 138) held not applicable; also
Kules of Supreme Court, Order XVI. rules 11
and 12, not applicable to such a case. Franklin
V. Franklin, 60 S. J. 43— Neville, J.
d. Representation of Parties.
See also Vol. XL 63, 1746.
One Person Suing for Others having same
Interest — Joint Contract.] — By Order XVI.
rule 9 of the Eules of the Supreme Court.
1883, " Where there are numerous persons
having the same interest in one cause or
matter, one or more of such persons may sue
or be sued, or may be authorised by the Court
or a Judge to defend in such cause or matter,
on behalf or for the benefit of all persons so
interested": — Held, that under the above rule,
where a contract has been jointly made by
numerous persons as co-contractors, one of
the co-contractors may, in a representative
capacity, on behalf and for the benefit of all
the co-contractors, sue the other parties to the
contract. Janson v. Property Insurance Co.,
19 Com. Cas. 36 ; 58 S. J. 84 ; 30 T. L. E. 49—
Horridge, J.
Action of Debt against Unincorporated
Society — Order Authorising One or More to
Defend on Behalf of AH.]— Order XVI. rule 9
provides that " Where there are numerous
persons having the same interest in one cause
or matter, one or more of such persons may sue
or be sued, or may be authorised by the Court or
a Judge to defend in such cause or matter,
on behalf or for the benefit of all persons so
1159
PEACTICE.
1160
interested." In a common law action of debt
for services rendered the plaintiff sued four
named defendants " on their own behalf and
on behalf of all other members "of an unincor-
porated religious society, the majority of the
members of which were resident abroad. After
the defendants had delivered a defence, the
plaintiff, with a view to binding the society
and its property, issued a summons under
Order XYI. rule 9, asking that the writ and
all subsequent proceedings be amended by
describing the defendants as being " sued on
their own behalf and on behalf of all other
members of " the society, and further asking
that, " as the members of the said order are
numerous and the above-named defendants are
some of them, they be directed to defend the
action on behalf of or for the benefit of all
persons so interested." The four defendants
were not trustees of the society, and the plain-
tiff did not claim by his writ any declaration
of right as between himself and all the mem-
bers of the society : — Held, that the case did
not fall within the provisions of Order XVI.
rule 9, and the plaintiff was not entitled to an
order making the defendants representative of
the society. Walker v. Sur, 83 L. J. K.B.
1188; [1914] 2 K.B. 930; 109 L. T. 888;
30 T. L. E. 171— C. A.
" Persons having same interest " — Action on
Behalf of Shippers of Goods on General Ship.''
— A vessel of the defendants, while carrying a
general cargo on a voyage to Japan during the
Russo-Japanese war, was sunk by a Eussian
cruiser for carrying contraband of war. The
plaintiffs, who had shipped goods on board,
commenced an action against the defendants
by issuing a writ " on behalf of themselves
and others owners of cargo lately laden on
board " the vessel. The claim indorsed on the
writ was for " damages for breach of contract
and duty in and about the carriage of goods by
sea." The defendants took out a summons
for an order to set aside the writ on the ground
that the case was not one to which Order XVI.
rule 9, allowing plaintiffs to sue in a repre-
sentative character, was applicable. It was
stated on behalf of the plaintiffs that they
desired to represent shippers of non-contraband
goods only, and that the breach of contract
and duty of which they complained consisted
in the carrying of contraband of war, whereby
the vessel was rendered liable to capture : —
Held (Buckley, L.J., dissenting), that the writ
ought to be set aside, even though it could be
treated as amended by limiting the representa-
tion to all the owners of cargo not being
shippers of goods which were contraband of
war ; for the plaintiffs and those whom they
desired to represent were not " persons having
the same interest in one cause or matter "
within the meaning of Order XVI. rule 9.
Markt v. Knight Stearnships Co., 79 L. J.
K.B. 939; [1910] 2 K.B. 1021: 103 L. T. 369;
11 Asp. M.C. 460— C.A.
Society — Right to Sue — Under-lease to
Society — Forfeiture of Head-lease — Claim of
Society to a Vesting Order.] — A member of
an unregistered society purported to take an
under-lease for and on behalf of his society.
On the head-lease being forfeited for breach of
covenant the trustees of the society, suing on
behalf of the members, brought this action for
an order vesting the premises in them for the
residue of the term of the under-lease under
section 4 of the Conveyancing Act, 1892 : —
Held, that the plaintiffs were not entitled to
sue. Jarrott v. Ackerley, o9 S. J. 509 —
Eve, J.
II. ACTION FOE DECLAEATION.
Action to Declare Rights of Parties — Juris-
diction— Coal Mine — Minimum Wage — Award
of Joint District Board.] — The plaintiffs
brought an action asking for a declaration of
the rights of the parties under an award made
by a joint district board under the powers
conferred on the board by the Coal Mines
(Minimum Wage) Act, 1912, s. 2, sub-s. 5,
subdividing their district into parts and fixing
the minimum wage in each subdivision : —
Held, that the Court, to the extent of declaring
such rights, had jurisdiction to try the action,
by reason of the provisions of Order XXV.
rule 5 of the Eules of the Supreme Court.
Lofthouse Colliery v. Ogden, 82 L. J. K.B.
910; [1913] 3 K.B. 120; 107 L. T. 827;
57 S. J. 186; 29 T. L. E. 179— Bailhache, J.
No Claim for Consequential Relief.] ^
Assuming that Order XXV. rule 5 purports to
give the Court jurisdiction to make a declara-
tion in favour of a plaintiff who has no cause
of action, it is not to that extent ultra vires of
the Judicature Acts, 1873 and 1875 (Buckley,
L.J., dissenting). Guaranty Trust Co. of New
York V. Hannay d Co., 84 L. J. K.B. 1465;
[1915] 2 K.B. 536; 113 L. T. 98— C.A.
Affirming 59 S. J. 302— Bailhache, J.
Under Order XXV. rule 5 the Court has
jurisdiction to entertain a claim by a plaintiff
for a mere declaration, though he does not and
cannot claim any consequential relief, and
though the declaration relates not to any
alleged right of the plaintiff, but to the alleged
non-existence of an obligation of the plaintiff
towards the defendant (Buckley, L.J., dis-
senting), lb.
A firm of cotton brokers in the United
States, having sold certain quantities of
cotton to the defendants, who were cotton
brokers in England, afterwards sold the bills
of exchange which they had drawn upon the
defendants in respect of these quantities of
cotton to the plaintiffs, who were bankers
carrying on business and having offices in
the United States and in England. The
plaintiffs, who acted throughout in good faith,
presented the bills of exchange to the defen-
dants for acceptance with the bills of lading
attached, and the defendants accepted and in
due course paid them. The defendants sub-
sequently alleged that some of the bills of
lading had been forged, and that no cotton
had in fact passed under them, and they
brought an action against the plaintiffs in the
United States to recover the amount paid l)y
them on one of these bills of exchange, on the
ground that the plaintiffs, by presenting it for
acceptance with the bill of lading attached,
had warranted the genuineness of the bill of
lading. That action was awaiting a new trial.
The United States Courts had expressed the
1161
PRACTICE.
1162
opinion, and the defendants admitted, that the
question of law which formed the only issue
in that action was governed by English law,
and it was admitted that that action might
have been brought in England. In these
circumstances the plaintiffs brought the present
action in England against the defendants,
claiming a declaration that the plaintiffs did
not. by presenting the bills of exchange to
which 'the bills of lading allege to have been
forged were attached, warrant that these bills
of lading were genuine, or that the cotton
therein described had been shipped; and an
injunction to restrain the defendants from
further prosecuting the action against the
plaintiffs in the United States or from
instituting anv other action against the
plaintiffs in the United States to recover any
moneys paid by the defendants in respect of
any of the other bills of exchange. The defen-
dants made an interlocutory application under
Order XXV. rule 4 to strike out the indorse-
ment on the w-rit for the declaration as dis-
closing no cause of action, on the ground that
the Court had no jurisdiction under rule 5 of
that Order or otherwise to make a declaration
in favour of a plaintiff who had no cause of
action -.—Held (Buckley, L.J., dissenting),
that the indorsement on the writ should not
be struck out, and that the application should
be dismissed. lb.
ITI. JOINDER OE CAUSES OE ACTION.
See also Vol. XL 121. 1752.
Action by Foreign Company for Balance of
Account — Application by Defendants to Join
Claim for Damages for Libel to Counterclaim.]
—The plaintiffs, a Canadian company, sued
the defendants, claiming for losses and balance
of account under an agreement of re-insurance.
The defendants put in a defence and counter-
claimed for rescission and for damages for
breach of contract. They afterwards applied
for leave to add to their counterclaim a claim
for damages for libel -.—Held, that this appli-
cation must be refused. Factories Insurance
Co. V. Anglo-Scottish General Commercial
Insurance Co.. 29 T. L. R. 312-C.A.
Claims by Plaintiff as Executor— Claims
by Plaintiff Personally.] — By rule 5 of
Order XYIII. "claims by ... an executor
... as such may be joined with claims
by . . . him personally, provided the last-
mentioned claims are alleged to arise with
reference to the estate in respect of which the
plaintiff . . . sues ... as executor." A plain-
tiff by his writ claimed in his personal capacity
41. 105. as arrears of rent, and also for
possession of certain premises, and, as execu-
tor, he claimed 9L as arrears of rent due to
his testator's estate in respect of the same
premises -.—Held, that by reason of rule 5 of
Order XVIII. there was a misjoinder of causes
of action, and the plaintiff must be put to
his election within fourteen days with which
cause of action he would proceed. Tredegar
(Lord) V. Roberts, 83 L. J. K.B. 159; [1914]
1 K.B. 283; 109 L. T. 731; 58 S. J. 118— C. A.
TV. WRIT OF SUMMONS.
a. Form and Contents of.
See also Vol. XI. 127, 1755.
Specially Indorsed Writ — Action for
Recovery of Land.] — A testator's executors
brought an action against the defendant, to
whom the testator had let certain premises for
three years from December 25, 1908, and then
fi'om year to year, to recover possession of the
premises. Due notice to quit had been given
by the plaintiffs to the defendant, and such
notice had expired. The writ in the action
was specially indorsed under Order III.
rule 6 (F) -.—Held, that the plaintiffs could
properly proceed by specially indorsed writ
under Order III. rule 6 (F). Casey v. Hellyer
(55 L. J. Q.B. 207; 17 Q.B. D. 97) distin-
guished. Hopkins v. Collier, 29 T. L. R. 367
— Bucknill, J.
b. Service of Writ.
See also Vol. XI. 148, 1756.
Foreign Corporation — Residence Within the
Jurisdiction — Carrying on Business — Fixed
Place of Business— Agent— Head Officer.]— A
foreign corporation may be served with a writ
of summons under Order IX. rule 8, if,
although they are not tenants of any place of
business within the jurisdiction, the Court is
of opinion that they carry on business at a
fixed place in this country which may be said
to be their place of business, as, for example,
by an agent for the sale of their goods who is
paid by commission and who rents an office in
the City of London, on the door of which the
corporation's name is painted, and where he
performs every operation involved in the sale
of their goods in this country. And such agent
is a "head officer," within the meaning of
the rule, on whom service may properly be
effected. Saccharin Corporation v. Chemische
Fabrik von Heyden Actiengesellschaft.&O L.J.
K.B. 1117; [1911] 2 K.B. 516; 104 L. T. 886
— C.A.
In order that a foreign corporation may be
liable to be sued in this country by reason
of the fact that it has a business residence
here, it is necessary that the business carried
on by its agents within the jurisdiction should
be the business of the corporation. It is not
sufficient that the corporation's agents are
merely doing work ancillary to the business
of the corporation, .illison v. Independent
Press Cable Association, 28 T. L. R. 128— C.A.
Agent— Authority to Contract— Carrying
on Business.] — A foreign corporation incor-
porated in Sweden employed as its sole agents
in this country a firm of general merchants in
London. The agents submitted orders to the
principals for approval and accepted such
orders on their behalf when approved, but had
no general authority to enter into contracts.
The goods were shipped direct from Sweden
to the purchasers, but payment was sometimes
received by the agents in" London and remitted
to the principals, less commission : — Held,
that the foreign corporation was not carrying
on business by its agents in London, but only
1163
PRACTICE.
1164
carried on business abroad through its agents
in London, and was therefore not resident
within the jurisdiction. Okura v. Forsbacka
Jernverks Aktiebolag, 83 L. J. K.B. 561;
[1914] 1 K.B. 715; 110 L. T. 464; 58 S. J.
232; 30 T. L. E. 242— C. A.
Service of a writ on a member of the firm
of agents at their London office, — Held, not
to be good service on the foreign corporation,
and ordered to be set aside. lb.
Grant v. Anderson d Co. (61 L. J. Q.B. 107 ;
[1892] 1 Q.B. 108) followed. Saccharin Cor-
poration V. Chemische Fabrik von Hey den
ActiengeseUschaft (80 L. J. K.B. 1117 ; [1911]
2 K.B. 516) distinguished. lb.
Where an agent in carrying on business
within the jurisdiction on behalf of a foreign
corporation makes contracts for the foreign
corporation, and does not merely sell contracts
with the foreign corporation, the foreign cor-
poration carries on business within the juris-
diction, and service of a writ against it may
be properly effected by service upon its agent.
Thames and Mersey Marine Insurance Co. v.
Societa di Navigazione a Vapore del Lloyd
Austriaco. Ill L. T. 97; 12 Asp. M.C. 491;
30 T. L. K. 475— C.A.
Colonial Defendant — Colonial Railway Com-
pany— London Committee for Raising Capital
— Residence within the Jurisdiction — Carrying
on Business within the Jurisdiction.] — The
defendant company was a Canadian railway
company incorporated and having its offices in
Canada, where the meetings of its board of
directors were held. By the by-laws of the
company those of the directors who resided in
England constituted a London committee
which, under the direction of the board, had a
general supervision of the finances of the com-
pany and might make investments of its funds
and issues of its capital, and which had a
chairman, secretary, and staff paid by the
company. The committee met at an office in
London, which was lent to them by its owners
rent free, and on the door of which the name
of the conapany was written. The committee
had in all cases advised the board in what
form the capital of the company should be
issued, and all the capital, consisting of mort-
gage bonds and debenture stock, had been
issued by the committee in England subject
to the control of the board. Circulars and
prospectuses relating to these issues were sent
out from the London office, and coupons on
the bonds were paid there. The company had
a bank account in London into which the
proceeds of the issues of capital were paid
and out of which small sums required by the
committee were drawn. The plaintiffs, having
brought an action in England against the
defendant company, served the writ upon the
secretary of the London committee at the
office in London : — Held, that the company
by its London committee was resident and
carried on business within the jurisdiction and
that the service of the writ upon the secretary
of the London committee was a valid service
upon the company under Order IX. rule 8.
Aktiesselskabet Dampskib " Hercules " v.
Grand Trunk Pacific Railway, 81 L. J. K.B.
189; [1912] 1 K.B. 222; 105 L. T. 695;
56 S J 5] ; 28 T. L. E. 28— C.A.
Alien Enemy Bankers — Branch in London —
Service of Writ of Branch — Execution —
Whether Leave Necessary.] — The plaintiffs
were English solicitors and the defendants
were bankers in Berlin. The plaintiffs had
an account with the Berlin office of the defen-
dants, who had also a branch in London. On
August 1, 1914, the plaintiffs had a credit
balance. On August 4 war broke out between
England and Germany. On August 10 a
licence under the Aliens Eestriction Act, 1914,
was issued to the branch to carry on business.
On August 27 the plaintiffs issued a writ for
the amount of the balance and it was served
on the branch, and an appearance was entered
by the defendants : — Held, that the service
was good, and as it was therefore no answer
to the claim to say that it could not be dis-
charged by the branch the plaintiffs were
entitled to judgment, and that as the Courts
(Emergency) Powers) Act, 1914, did not apply
in the case of alien enemies it was not neces-
sary to ask for leave to issue execution.
Leader, Plunkeit d Leader v. Disconto-
Gesellschaft, 59 S. J. 147; 31 T. L. E. 83—
Scrutton, J.
c. Service out of the Jurisdiction.
See also Vol. XL 168, 1759.
Action Properly Brought against Person
within Jurisdiction — Colourable Joinder of
Parties — Discontinuance of Action against De-
fendant within Jurisdiction.) — To justify the
exercise of the power to allow service of a
writ out of the jurisdiction under the Irish
Order XL rule 1 (h) [corresponding to
Order XL rule 1 (g)] the person served within
the jurisdiction must be one against whom
relief is bona fide sought by the plaintiff, and
not a person, colourably joined for the purpose
of effecting service out of the jurisdiction under
the Order, against whom the plaintiff has no
i-eal cause of action, and against whom the
action is discontinued before trial. In a case
of colourable joinder, even though an uncon-
ditional appearance had been entered by the
defendant out of the jurisdiction, the Court
upon the discontinuance of the action against
the sole defendant within the jurisdiction,
stayed all further proceedings in the action
on the ground that it was an abuse of the rule.
Sharpies v. Eason, [1911] 2 Ir. E. 436—
C.A. s.p. Ross V. Eason, [1911] 2 Ir. E. 459
-C.A.
Foreclosure Summons — Action Founded on
Contract.] — An action to foreclose a mortgage
of personalty, containing the usual covenant
to repay, brought by the original mortgagee
against the original mortgagors is not an
action " founded on any breach of contract "
within Order XL rule 1 (e), and the Court
cannot therefore allow service of the writ of
summons on the mortgagors out of the juris-
diction. Hughes v. Oxenham, 82 L. J. Ch.
155; [1913] 1 Ch. 254; 108 L. T. 316;
57 S. J. 158— C.A.
Co-defendants — Tort — Principal and Agent.]
— W., who was resident in England, wrote a
number of libels concerning C, who was
1165
PRACTICE.
1166
resident in Ireland, and employed H., a bill
poster, also resident in Ireland, to post, pub-
lish, and circulate them in the vicinty of C.'s
residence. In an action by C. against W.
and H. for damages for the libel, H. being
served in Ireland, and there being, in the
opinion of the Court, no ground for alleging
that he was not bona fide made a defendant, —
Held, that a concurrent writ was properly
ordered to be served on W. in England. Ross
V. Eason ([1911] 2 Ir. E. 459) and Sharpies
V. Eason ([1911] 2 Ir. R. 436) distinguished.
Cooney v. Wilsoyi, [1913] 2 Ir. R. 402— C.A.
Action to Recover Expenses of Extraordinary
Traffic' — An action brought to recover extra-
ordinary expenses necessary for repairing roads
by reason of damage caused by excessive user
of the roads from the person liable to recoup
such expenses, is not within any of the classes
of action enumerated in Order XI. rule 1, and,
consequently, where the person sought to be
charged in an intended action is resident out
of the jurisdiction, leave of the Court to issue
and serve a writ of summons out of the juris-
diction will not be allowed : — So held by
Holmes, L.J., and Cherry, L.J. (the Lord
Chancellor dissenting). Clare Comity Council
V. Wilson, [1913] 2 Ir. R. 89— C.A.
Action to Perpetuate Testimony — Land
within Jurisdiction.1 — The Court will not give
leave under Order XL rule 1 (a) for the writ
in an action to perpetuate testimony to be
served out of the jurisdiction. The fact that
it is intended ultimately to use the testimony
in question solely in connection with land
" situate within the jurisdiction " does not
render such an action one in which " the whole
subject-matter of the action is land situate
within the jurisdiction," within the meaning
of the rule. Slingsby v. Slingsby, 81 L. J.
Ch. 449: [1912] 2 Ch. 21; 106 L. T. 666—
C.A.
Breach within Jurisdiction of Contract made
in Isle of Man.j — A trader, resident and
carrying on business in the Isle of Man,
ordered goods from a company carrying on
business in Ireland, through the company's
traveller. From transactions between the
trader and the company, it appeared that
upon such orders goods were supplied by
the company directly to the trader, and
payment was made by the latter by cash
order sent directly to the company in Ireland.
Upon an application by the company for
liberty to serve the trader out of the juris-
diction with a writ of summons for the price
of goods sold to him through the company's
traveller, liberty to do so was granted on
the ground that, having regard to the course
of dealing between the parties, the intended
action was founded on a breach within the
Irish Court's jurisdiction of the contract made
by the company's agent. O'Mara, Lim. v.
Dodd, [1911] 2 Ir. R. 55— Kenny, J.
Foreign Partnership Sued in Firm Name
— Partnership not Carrying on Business within
the Jurisdiction — Lex Domicilii or Lex Fori.l
— A foreign partnership not carrying on
business within the jurisdiction cannot be sued
in its firm name. V;here, therefore, service
was effected out of the jurisdiction on a French
partnership or societe en nom collectif, as such,
in proceedings commenced against the firm in
its firm name, the Court set aside the service
and discharged an order which had been
obtained ex parte giving leave to serve notice
of a concurrent writ on the firm out of the
jurisdiction, although there was evidence that
according to French law the firm was a
separate person for the purpose of service of
legal proceedings. The lex fori and not the
lex domilicii applies in such a case. Von
Hellfeld v. Rechnitzer, 83 L. J. Ch. 521;
[1914] 1 Ch. 748; 110 L. T. 877; 58 S. J. 414
—C.A.
V. PROCEEDINGS IN DEFAULT OF
APPEARANCE.
See also Vol. XI. 199, 1766.
Indorsement of Service within Three Days
— Judgment by Default — Non-compliance with
Rule — Irregularity.] — The indorsement on a
writ of summons on the day of the month
and week of the service thereof within three
days of such service, required by Order EX.
rule 15, is a condition precedent to the right
of the plaintiff to proceed by default, and is
not a mere irregularity which can be waived
by the defendant or remedied under
Order LXX. rule 2. Hamp-Adams v. Hall,
80 L. J. K.B. 1341; [1911] 2 K.B. 942;
105 L. T. 326 ; 55 S. J. 647 ; 27 T. L. R. 581
-C.A.
VI. JUDGMENT UNDER ORDER XIV.
See also Vol. XL 208, ITr.T.
Application for Judgment — Affidavit in Sup-
port by " other person who can swear
positively to the facts " — Affidavit by Clerk in
London Office as to Transactions in other
Places — SuSiciency.] — The plaintiffs, who
carried on business in London and many
other parts of the country as producers of
and dealers in cinematograph films and other
requisites, issued a specially indorsed writ
against the defendants, who were the owners
of cinematograph theatres in many places
throughout the country, claiming a specific
sum for balance of account for parcels of goods
sold and delivered and goods hired out by the
plaintiffs from various of their places of
business to the defendants at various of their
theatres in different places. An application
by the plaintiffs for leave to sign judgment
under Order XIV. was supported by an
affidavit made by a clerk in the employment
of the plaintiffs at their place of business in
London, in which he stated that the defen-
dants were justly and truly indebted to the
plaintiffs in the sum claimed for balance of
account for goods sold and delivered and for
hire of goods, that he verily believed that there
was no defence to the action, that he was in
the employ of the plaintiffs and duly author-
ised by them to make the affidavit, and that
it was within his knowledge that the aforesaid
debt was incurred and for the consideration
above stated : — Held, that the deponent was a
1167
PEACTICE.
1168
person who could " swear positively to the
facts " within the meaning of Order XIV.
rule 1, and that the affidavit was sufficient
under that rule. PathS Frdres Cinema v.
United Electric Theatres, 84 L. J. K.B. 245;
[1914] 3 K.B. 1253; 112 L. T. 20; 58 S. J.
797 ; 30 T. L. E. 670— C.A.
"Person who can swear positively to the
facts" — Affidavit Based on Information and
Belief — Jurisdiction — Order for Payment of
Costs Forthwith.] — An application for sum-
mary judgment under Order XIV. in an action
for money received by the defendants for the
use of the plaintiffs was supported by an
affidavit made by the plaintiffs' manager. The
deponent stated that certain cheques payable
to the plaintiffs, the proceeds of which formed
part of the claim, were handed to the plain-
tiffs' cashier for payment into the plaintiff's
bank, but that the cashier never paid the
cheques into the plaintiffs' bank, and that the
deponent was informed and believed that the
cheques came into the possession of the defen-
dants, who passed them through their own
banking account and received the proceeds
thereof. The deponent further stated that he
has ascertained from the drawers of the
cheques that they had been paid into the
account of the defendants : — Held (dubitante
Kennedy, L.J.), that there was no jurisdiction
to make an order for summary judgment, as
the affidavit did not satisfy the requirements
of Order XIV. rule 1, being made by a person
other than the plaintiff, who could not swear
positively to the facts verifying the cause of
action, and that therefore the application
should be dismissed: and, further, that under
rule 9 (b) the plaintiffs should be ordered to
pay the defendants' costs forthwith. Symon
V. "Palmer's Stores, 81 L. J. K.B. 439; [1912]
1 K.B. 2.59; 106 L. T. 176— C.A.
VII. INTERMEDIATE PROCEEDINGS.
a. Payment of Money into and out of Court.
See also Vol. XL 248, 1774.
Payment into Court — By One Defendant —
Joint Cause of Action against Several Defen-
dants— Money taken out by Plaintiff in Satis-
faction of Claim.] — Where several defendants
are sued on a joint cause of action and one of
them pays money into Court in satisfaction of
the claim, the plaintiff, if he takes the money
out of Court, there and then puts an end to
the whole cause of action, and in a proper
case he may be ordered to pay the costs of
the other defendants who were not responsible
for payment in. Beadon v. Capital Syndicate,
56 S. J. 536; 28 T. L. E. 427— C.A.
Denial of Liability — Costs — Damages in
Lieu of Injunction.! — Where the defendant's
shops curved away from the private road the
defendant erected a pilaster, which at a height
of twelve feet overhung the private road to
the extent of twenty inches. The plaintiff
asked for a mandatory injunction to remove
the pilaster. The defendant denied liability,
and paid 5/. into Court in respect of the over-
hang. Sargant, J., awarded the plaintiff 51.
damages in lieu of an injunction, and under
Order XXII. rule 6 ordered the plaintiff to
pay the costs of this issue. Pettey v. Parsons,
84 L. J. Ch. 81 ; [1914] 1 Ch. 704 ; 30 T. L. R.
328— Sargant, J.
b. Staying and Setting Aside Proceedings.
1. Generally.
(a) When Proceedings Frivolous or Vexatious.
See also Vol. XL 283, 1780.
Vexatious Legal Proceedings — Criminal
Proceedings.] — The Vexatious Actions Act,
1896, which empowers the Court to make an
order prohibiting a person from instituting
" legal proceedings " without the leave of the
Court or a Judge, is confined to civil proceed-
ings, and has no application to the institution
of criminal proceedings. Boaler, In re, 83 L. J.
K.B. 1629; [1915] 1 K.B. 21; 111 L. T. 497;
24 Cox C.C. 335; 58 S. J. 634; 30 T. L. R.
580— C.A.
Administration Action in Ireland — Cross-
action on Same Subject-matter in English
Court.] — An action having been commenced in
the Irish Court by an executor of a testator
who died in Ireland, claiming as against per-
sons interested under a voluntary settlement
made by the testator that certain property was
not included in it but was part of his residuary
estate, and asking for administration of that
estate, the defendants to the action commenced
a cross-action in the English Court for a
declaration that the property in question had
been effectually brought into the settlement :
— Held, that the action in England was not
vexatious or oppressive, and ought not there-
fore to be stayed until after the trial of the
Irish action. Carter v. Hungerford, 59 S. J.
428— C.A.
(b) Pendency of Actions Abroad.
See also Vol. XL 289, 1786.
Proceedings in English and Italian Courts."
— An Englishwoman by birth died domiciled
in Italy without any formal will, but it was
alleged that a letter written by her in the
English language to her solicitor in England
relating to the disposal of her property after
her death, and to a will which she instructed
him to draw, constituted a valid holograph
will according to the law of Italy. Proceedings
were commenced in England by two of her
next-of-kin against defendants who were inter-
ested under the alleged holograph will, to
obtain as on an intestacy a grant of letters
of administration to her personal estate, the
greater part of which was in England. The
defendants then instituted proceedings in Italy
claiming that the document in question was
a holograph will. There was some conflict of
opinion amongst Italian lawyers whether or
not the document constituted a good holograph
will : — Held, that the English Court, applying
Italian law to the document, was competent
to decide whether or not it constituted a good
holograph will, and that the English proceed-
ings, having been commenced first, should not
1169
PKACTICE.
1170
be stayed so as to leave the construction and
effect of a document in the English language
to the Italian Court. Bojmefoi, In re; Surrey
V. Perrin, 82 L. J. P. 17'; [1912] P. 233:
107 L. T. 512 ; 57 S. J. 62— C.A.
See also Carter v. Hurigerford (infra).
(c) Two or More Actions in this Country.
See also Vol. XL 294, 1787.
Originating Summons to Realise Mortgage
— Jurisdiction to Make Order for Personal
Payment — Subsequent Action on Covenant for
Payment.] — Upon an originating summonB
issued by a mortgagee under Order LV. rule 7
[English Order LV. rule 5 a], there is no
jurisdiction to make a personal order for pay-
ment of the mortgage debt, and therefore if
the mortgagee, pending such proceedings,
brings an action in the King's Bench Division
on the covenant for payment in the mortgage
deed, such action will not be stayed. Williams
V. Hunt (74 L. J. K.B. 364; [1905] 1 K.B.
512) distinguished. Bradshaw v. McMullen.
[1915] 2 Ir. E. 187— C.A.
Debenture — Action in the Chancery Divi-
sion for Receiver — Subsequent Action in the
King's Bench Division on Covenant for Pay-
ment of Interest.] — A debenture-holder's action
in the Chancery Division for the appointment
of a receiver and consequential relief, as it is
not a claim for payment, does not cover the
same ground as, and is no impediment to, the
prosecution of an action in the King's Bench
Division by another debenture-holder on the
covenant contained in the debenture for the
payment of arrears of interest. Hope v.
Croydon and Norwood Tramways (56 L. J.
Ch. 760; 24 Ch. D. 730) distinguished. Cleary
V. Brazil Railway, 85 L. J. K.B. 32 : 113 L. T.
96— Eowlatt. J.
Administration Action in Ireland — Cross-
action on Same Subject-matter in English
Court.] — An action having been commenced
in the Irish Court by an executor of a testator
who died in Ireland, claiming as against per-
sons interested under a voluntary settlement
made by the testator that certain property was
not included in it but was part of his residuary
estate, and asking for administration of that
estate, the defendants to the action commenced
a cross-action in the English Court for a
declaration that the property in question had
been effectually brought into the settlement :
— Held, that the action in England was not
vexatious or oppressive, and ought not there-
fore to be stayed until after the trial of the
Irish action. Carter v. Hungerford, 59 S. J.
428— C.A.
Concurrent Suits — Suit in Palatine Court of
Lancaster — Vexatious Proceedings." — The
plaintiffs brought a debenture-holders' action
in the Chancery Division of the High Court
and gave notice of motion for a receiver. A
mortgagee who claimed adversely to the
debenture-holders under a specific charge of
part of the property subject to the debentures
then commenced an action in the Palatine
Court of Lancaster to enforce his security by
foreclosure or sale and obtained the appoint-
ment of a receiver, being at the time aware
of the plaintiffs' action, to which, however, he
was not then a party. The plaintiffs then
added him as a defendant to the plaintiffs'
action and moved in that action for an injunc-
tion to restrain him from continuing proceed-
ings in the Palatine action : — Held, that,
assuming the Palatine Court to be a Court of
co-ordinate jurisdiction with the Chancery
Division of the High Court of Justice, the
latter had jurisdiction to grant the injunction,
and that it was a proper case in which to
exercise it on the ground that the mortgagee's
proceedings in the Palatine Court were vexa-
tious. Connolly Brothers, Lim., In re; Wood
V. Connolly Brothers, Lim., 80 L. J. Ch. 409;
[1911] 1 Ch. 731; 104 L. T. 693— C.A.
Affirming, 55 S. J. 407— Parker, J.
Transactions between Borrower and Money-
lender— Action by Borrower in Chancery Divi-
sion Claiming Account and Declaration that
Money-lending Transactions Harsh and Un-
conscionable — Action by Money-lender in
King's Bench Division on Promissory Note.] —
The defendant, who had a number of trans-
actions with the plaintiff, a registered money-
lender, offered the plaintiff just before the last
sum he had borrowed had become due the
balance of the principal and a sum for interest
which the money-lender declined. The borrower
thereupon issued a writ in the Chancery Divi-
sion claiming an account of all transactions
between him and the money-lender, and a
declaration that some of them were harsh and
unconscionable, and for relief under the
Money-lenders Act. The money-lender shortly
thereafter issued a writ in the King's Bench
Division for the full amount said to be owing
by the borrower. The borrower thereupon took
out a summons asking for a stay of the pro-
ceedings in the King's Bench Division on the
ground that they were an abuse of the process
of the Court in view of the proceedings pending
in the Chancery Division : — Held (Kennedy,
L.J., dissenting), that, in the circumstances
of the case, the proceedings in the King's
Bench Division should be stayed. Tumin "V.
Levi, 28 T. L. E. 125— C.A.
id) Other Grounds.
See also Vol. XL 314. 1788.
Appearance under Protest — Usual Terms —
Defendant to Apply to Set Aside Service
within Limited Time or Appearance to be
Unconditional — Application after Time
Elapsed.] — The entry of a conditional appear-
rince by a defendant under protest to the
jurisdiction on " usual terms," under No. 11
of the Office Rules settled by the Practice
Masters — that is, that the appearance stands
as unconditional unless the defendant applies
within a number of days fixed by the Master
on giving leave, to set aside the writ or service
thereof, and obtains an order to that effect —
is a proper and convenient practice for enabling
the plaintiff to proceed with the action after
the expiration of the time fixed w'here no
application is previously made by the defen-
dant ; but it does not in any way preclude the
1171
PEACTICE.
1172
Court or a Judge from entertaining an applica-
tion by the defendant to set aside the writ or
service thereof after the expiration of the time
fixed, if the circumstances of the case justify
it. Keymer v. Reddy. 81 L. J. K.B. 266;
[1912] 1 K.B. 21-5 ; 105 L. T. 841— C.A.
2. Ox Winding-up of Companies.
See Company.
3. On B.\n~kruptcy. — See B.^nkecptcy.
4. Pending Appeal. — See Appeal.
5. Whebe Agreement to Refer.
See Arbitration.
c. Particulars.
See also Vol. XI. 319, 1789.
Before Defence.] — In an action brought by
the P. Assurance Co. against A, B, and C,
the trustees of the L. Insurance Society, and
D, E, and F, certain agents of the L. society,
to restrain them from interfering with the
business of the P. company, the statement of
claim alleged (inter alia) that " the said
D, E, and F, and other agents and servants
of the L. society at the instigation of the
said society and of the said D, E, and
F, have for the purpose of inducing the
policy-holders of the P. company to cease
insuring with the P. company and to transfer
their insurances to the L. Society, made grossly
false statements and representations to the
policy-holders in the P. company " to a certain
effect, and that " D, E, and F also themselves
circulated among the policy-holders in the P.
company, and caused to be circulated bj' other
agents and servants of the L. society, a grossly
libellous notice or circular imputing certain
charges against the P. cxjmpany, and that the
said notice or circular letter continues to be
circulated among the policy-holders of the
P. company by the said D, E, and F : — Held,
that, before delivering their defence. A, B,
and C were entitled to obtain from the plain-
tiffs further and better particulars as to — first,
the persons by whom, secondly the localities
in which, and thirdly, the period within which,
the alleged grossly false statements and repre-
sentations were made, and also particulars as
to whether any of the policy-holders to whom
it was alleged the false representations were
made were resident outside a certain district
named by the plaintiffs, but that they were
not entitled to receive particulars of the names
and addresses of the several persons to whom
the false representations were made. British
Legal and United Provident Assurance Go.
V. Sheffield (Baron), [1911] 1 Ir. R. 69— M.E.
Libel — Preliminary Averments — Discre-
tion.!— The plaintiff in a libel action alleged
in his statement of claim that after the
outbreak of war he was engaged, with official
sanction, in relief and other work on behalf
of British prisoners of war and in conveying
to them money, food, and clothing, from their
relatives and friends. The statement of claim
then set out the alleged libel, which was to
the effect that the American ambassador in
Berlin had warned the British public against
confiding anything to the plaintiff. The defen-
dants, before delivering their defence, obtained
a Master's order for particulars of the plain-
tiff's allegations as to his official position, his
relief and other work, and the things conveyed
by him to prisoners, and as to the relatives
and friends referred to. An appeal from the
Master to the Judge was dismissed : — Held.
that though the allegations in question might
not be necessary, yet, as evidence that they
were true would no doubt be given at the
trial, they could not be said to be immaterial
to the plaintiff's case, and therefore he was
bound to give the particulars, and that the
question whether they should be given was
a matter of discretion and there was no reason
to interfere with the way in which it had
been exercised. Gaston v. United News-
papers. Lim., 32 T. L. R. 143— C.A.
False Imprisonment — Reasonable and Prob-
able Cause.]— The plaintiff sued the defen-
dants, who were two constables in the employ-
ment of a railway company, and also the
railway company, for damages for false
imprisonment. The plaintiff alleged that he
had been wrongfully arrested on a charge of
theft and had subsequently been discharged.
The defendants denied the arrest, and pleaded
that if the acts complained of had been done,
they were done by constables in the execution
of their duty, they having reasonable and
probable cause for suspicion that a felony had
been committed and that the plaintiff had
committed it. On an application by the plain-
tiff for particulars, — Held, that he was entitled
to an order for particulars of the alleged felony
and also of the reasonable and probable cause
for suspicion, but not to the names of those
who had given the defendants information
against him. Green v. Garhutt, 28 T. L. R.
575— C.A.
Libel — Report of Traders' Association —
Enquiry as to Plaintiff — Name of Person
making Enquiry.] — The defendants, an
association of traders formed for the purpose
(inter alia) of supplying information to its
members, issued a report in which appeared
an enquiry as to the address of the plaintiff.
The plaintiff sued the defendants in respect of
this publication, alleging that by it the defen-
dants meant and were understood to mean
that he had moved from the address where he
had resided for eight years, and where he still
resided, without leaving any indication of his
movements, with the object of avoiding pay-
ment of his debts. The defendants denied the
innuendo and pleaded that the words were
published on a privileged occasion and without
malice. The defendants by their particulars
stated that a member of their association made
an enquiry with regard to the plaintiff, and
the secretary, in pursuance of his duty to
further the objects of the association, instructed
their enquiry officer to enquire for the plaintiff
and that the enquiry officer was informed that
the plaintiff had left, and thereupon the defen-
dants, in the honest belief that this was true,
published the information for the benefit of
the members. On an application by the plain-
tiff for further and better particulars, — Held,
1173
PEACTICE.
1174
that the defendants were bound to give further
particulars to enable the plaintiff to test the
question whether the enquiry was made by a
member of the defendant association. Elking-
ton V. London Association for Protection of
Trade, 27 T. L. K. 329-C.A.
Justification — Disclosure of Names of
Probable Witnesses.] — The plaintiff, a trainer
of racehorses, brought an action for libel
against the defendants. The alleged libel was
to the effect that the plaintiff had entered into
a conspiracy with other trainers and jockeys
to win or lose races dishonestly, and that he
had thereby defrauded bookmakers and others.
The defendants pleaded justification. Particu-
lars in support of the plea were ordered and
delivered. These particulars gave several
instances in which it was alleged that a certain
horse had been " pulled " by a certain jockey
in a certain race at the instigation of the
plaintiff when he had backed another horse
for that race. Upon summons by the plaintiff
for further and better particulars, giving the
names of the bookmakers with or through
whom it was alleged that the plaintiff had
backed the horses, the times or places of the
alleged backings, and the amounts of the
alleged bets, — Held, that the plaintiff was
entitled to particulars specifying the names of
the bookmakers and the times or places, but
not the amounts, of the bets. Held, also,
that in every case in which the defence of
justification raises an imputation of mis-
conduct against the plaintiff, he ought to be
enabled to go to trial with knowledge of the
acts which it is alleged he has committed and
upon which the defendant intends to rely
to justify the imputation; and, if the particu-
lars are such as the defendant ought to give,
he cannot refuse to give them merely on the
ground that his answer will disclose the names
of his witnesses. Wootton v. Sievier (No. 1),
82 L. J. K.B. 1242; [1913] 3 K.B. 499;
109 L. T. 28; 57 S. J. 609; 29 T. L. E. 596
— C.A.
d. Security for Costs.
See also Vol. XI. 344, 1790.
" Nominal " Plaintiff — Action by Bankrupt
on Cause of Action Arising after Bankruptcy
— "Personal earnings" — Intervention of
Trustee.] — The plaintiff, while an undis-
charged bankrupt, obtained a commission note
from the defendants under which he was to
be paid 60Z. if he procured a certain loan, and
he brought this action to recover that sum. He
was earning his living as a commission agent,
and the whole or part of the 60L would
properly be required for his maintenance.
The trustee in bankruptcy gave notice to the
defendants that he claimed any money payable
to the plaintiff under the commission note,
but he subsequently gave them notice that he
withdrew his claim. The defendants applied
for an order that the plaintiff should give
security for the costs of the action, upon the
ground that he was a mere nominal plaintiff
suing for the benefit of the trustee : — Held,
that the money claimed by the bankrupt was
his " personal earnings," within the exception
established in the law of bankruptcy, and that,
as the whole or part thereof was required for
his maintenance, he was not a mere nominal
plaintiff who could be ordered to give security
for costs. Affleck v. Hammond, 81 L. J. K.B.
565 ; [1912] 3 K.B. 162 ; 106 L. T. 8; 19 Man-
son, 111— C.A.
Plaintiffs Resident out of the Jurisdiction —
Cross-action — Substantially Independent
Action.] — By agreements made in 1904 and
1907 between an English insurance company
and a foreign insurance company it was agreed
that the foreign company should re-insure cer-
tain proportions of risks covered by policies of
insurance effected with the English company
on and after October 1, 1904, against loss or
damage by fire on the Continent of Europe
and other parts of the world. By the terms of
these agreements the English company were
to render to the foreign company quarterly
accounts, and the balances appearing on the
accounts were to be paid within two weeks
after the accounts had been confirmed ; and
for the purpose of checking the losses it was
provided that the foreign company should have
a right to inspect all original documents and
vouchers. In pursuance of these agreements
business was conducted between the two com-
panies, accounts were delivered, and balances
paid down to and including the first quarter
of 1908. The account for the second quarter
of 1908 was confirmed by the foreign company,
but the balance shewn thereby was not paid by
them. In 1910 the English company brought
an action against the foreign company alleging
that they had neglected to consider and con-
firm subsequent accounts which had been sent
to them, and claiming the balance shewn by
the account for the second quarter of 1908
and the balances shewn by the subsequent
accounts, and claiming that if necessary
accounts should be taken. The foreign com-
pany then brought a cross-action against the
English company claiming inspection of all
original documents and vouchers connected
with all transactions under the agreements,
and that all accounts between the two com-
panies in connection with all transactions
under the agreements might be re-opened on
the ground of errors having occurred. The
English company took out a summons in the
cross-action asking that the foreign company
should be ordered to give security for costs on
the ground that they resided and carried on
business out of the jurisdiction : — Held, that
the foreign company ought to be ordered to
give security for costs, inasmuch as the cross-
action was in substance an independent action
not brought merely by way of defence to the
original action. New Fenix Compagnie v.
General .Accident, Fire, and Life Assurance
Corporation, 80 L. J. K.B. 1301; [1911]
2 K.B. 619 : 105 L. T. 469— C.A.
e. Preservation and Inspection of Property.
Sec also Vol. XL 399, 1793.
Preservation of Property — Scope of Order.]
— Order L. rule 3 of the Rules of the Supreme
Court is not confined to administration, but
extends to every case in which the Court sees
1175
PEACTICE.
1176
that as between the parties there is some-
thing which ought to be done for the security
of the property in question. Under this order
the Court authorised the receiver of the estate
of a lunatic to raise out of the estate a sum
of money to pay a commission to an insurance
company for taking over a transfer of a mort-
gage on the property, the principal sum under
which being due and payment being pressed
for by the mortgagee. CJiaplin v. Barnett,
28 T. L. E. 256— C:A.
Inspection of Premises — Tenants in Com-
mon— Action against One Tenant only — Power
to Order Inspection.] — Under Order XII.
rule 3 of the County Court Rules, 1903 and
1904 [E.S.C. Order" XXXI. rule 12], which
provides that the Court may, upon the applica-
tion of a party to an action, make an order
for the inspection of any property which is the
subject of the action, there is no power to
make an order for the inspection of premises
of which the defendant is tenant in common
with other persons who are not parties to the
action. Coomes v. Hayward, 82 L. J. K B
117; [1913] 1 K.B. 150; 107 L. T. 715— D.
f. Receiver.
See also Vol. XI. 407, 1794.
Ex parte Application.] — The Court ought
not to appoint a receiver ex parte except
under extraordinary circumstances. Connolly
Brothers, Lim., In re; Wood v. Connolly
Brothers, Lim., 80 L. J. Ch. 409 ; [1911] 1 Ch.
731; 104 L. T. 693— C.A.
Partnership Action — Receiver and Manager
Appointed by the Court — Expenses Properly
Incurred — Right of Indemnity.] — A receiver
and manager appointed by the Court can
look only to the assets in the control of the
Court for his indemnity for expenses properly
incurred. He is not entitled to be indemnified
personally by the parties at whose instance,
or with whose consent, he was appointed.
Boehm v. Goodall, 80 L. J. Ch. 86; [1911]
1 Ch. 155; 103 L. T. 717; 55 S. J. 108;
27 T. L. E. 106— Warrington, J.
Vni. TRIAL.
See also Vol. XI. 418. 1795.
Jury — Exemption — Employment by Inland
Revenue Commissioners — Foreign Banker —
Collection of Income Tax on Foreign Divi-
dends.j — A member of a firm of foreign
bankers, which carries on business in London
and is emploj'ed by the Inland Revenue Com-
missioners in the collection of income tax on
foreign dividends and is paid by poundage, is
not employed by the Inland Revenue Commis-
sioners within the meaning of section 9 of the
Juries Act, 1870, and the schedule to that
Act, and is not on that ground exempt
from jury service. Van Druten, Ex parte,
30 T. L. R. 198— Bankes, J.
Mode of Trial — Direction for Trial by Judge
— Subsequent Application for Trial with Jury
— Order XI Y.' — Where on a summons under
Order XIY. an order is made giving the defen-
dant unconditional leave to defend, with a
direction that the action shall be tried by a
Judge, and the defendant leaves that order
unappealed against, the defendant cannot
subsequently, on an application under
Order XXXVI. rule 6, obtain an order for
a trial with a jury. Wolfe v. De Braam
(81 L. T. 533) considered. Kelsey v. Donne
81 L. J. K.B. 503; [1912] 2 K.B. 482-
105 L. T. 856— C.A.
Right to Trial by Jury— Action in Admiralty
Division against Pilot — Transfer to King's
Bench Division.] — The plaintiffs, as the
owners of a causeway abutting on the Thames,
claimed to recover the amoimt of damage done
to the causeway through, as they alleged, the
negligent navigation of a steamship which at
the time was compulsorily in charge of the
defendant as a Trinity House pilot. The
plaintiffs brought an action in personam in the
Admiralty Division against the defendant, and
they also brought an action in rem against the
owners of the steamship. The defendant took
out two summonses asking respectively that
the action against him might be tried with a
jury and might be transferred to the King's
Bench Division. The Judge dismissed both
surnmonses on the ground that there being an
action in rem against the ship which would,
according to the usual practice, be tried by a
Judge with assessors, it would not be con-
venient that the personal action should be
tried before another tribunal -.—Held, that the
action should be tried in the King's Bench
Division by a Judge with a jury. Metropolitan
Asylums Board v. Sparrow, 29 T. L. R 450
—C.A.
Commercial List — City of London Special
Jury— Interlocutory Applications.]— Where a
cause is to be tried with a special jury of
the City of London it should be transferred
to the Commercial List, and all interlocutory
applications after its transfer should be made
to the Judge in charge of such list. Barnes v.
Lawson, 16 Com. Cas. 74 — Scrutton, J.
General Yerdict— Power of Judge to Put
Further Question.]— When a jury have given
a general verdict the Judge is not entitled to
put a further question to them for the purpose
of effect being given to their answer. Arnold
V. Jeffreys, 83 L. J. K.B. 329; [1914] 1 K.B.
512 ; 110 L. T. 253— D.
Stranger in Jury Room — Yalidity of Yer-
dict.]— The presence of a stranger in the room
where a jury are considering their verdict,
even although he may not in any way inter-
fere with their deliberations, invalidates the
verdict. Goby v. Wetherill, 84 L. J. K.B.
1455; [1915] 2 K.B. 674; 113 L. T. 502;
79 J. P. 346 ; 31 T. L. R. 402— D.
Disagreement of Jury — Entering Judgment
for Either Party on the Evidence — Slight
Evidence — No Evidence — Possibility of Addu-
cing Additional Evidence at a Re-trial.]— At
the conclusion of a plaintiff's case the defen-
dants applied for judgment on the ground that
there was no evidence to go to the jury. The
1177
PEACTICE.
1178
Judge refused to enter judgment, saying that
there was some evidence, though very weak.
The case was left to the jury, and they dis-
agreed. The defendants again applied for
judgment, but the Judge again refused to
enter judgment, saying that he could not alter
his previous opinion that there was some evi-
dence, though it was very weak : — Held, that
the Judge had power to alter his opinion and
enter judgment for the defendants if he would
have been justified in directing the jury to find
a verdict for the defendants. Skeate v.
Slaters, Lim., 83 L. J. K.B. 676; [1914]
2 K.B. 429; 110 L. T. 604; 30 T. L. E. 290
— C.A.
Semble, under Order LVIII. rule 4 the
Court of Appeal has power to enter judgment
for the defendant where a verdict has been
found for the plaintiff, if the evidence on which
that verdict was found was so weak and in-
sufficient that the Court of Appeal would not
have allowed the verdict to stand. But this
power should only be exercised where the
Court of Appeal is satisfied that it has all the
necessary materials before it and that no evi-
dence could be given at a re-trial which would
in the Court of Appeal support a verdict for
the plaintiff. lb.
Per Buckley, L.J. : Where a case has been
tried and the jury have disagreed, if upon
the whole of the evidence of the case the Court
of Appeal are of opinion that no twelve reason-
able men could give a verdict for the plaintiff,
the Court of Appeal has power and is bound
to enter judgment for the defendant. lb.
Millar v. Toulmin (55 L. J. Q.B. 445;
17 Q.B. D. 603), Allcock v. Hall (60 L. J.
Q.B. 416; [1891] 1 Q.B. 444), and Paquin,
Lim. V. Beauclerk (75 L. J. K.B. 395 ; [1906]
A.C. 148) approved. Peters v. Perry £ Co.
(10 T. L. E. 366) explained. lb.
Action for Joint Tort — Separate Defences —
Improper Severance of Damages — Unity of
Verdict and Judgment.] — Where an action has
been brought against several defendants for an
alleged joint tort for which all are found liable,
then, notwithstanding that they have severed
in their defences, only one joint verdict can be
found and one joint judgment can be entered
against them all. Greenlands, Lim. v. Wilms-
hurst, 83 L. J. K.B. 1; [1913] 3 K.B. 507;
109 L. T. 487 ; 57 S. J. 740; 29 T. L. E. 685
—C.A.
A trade protection association existed for the
purpose of providing for its subscribers in
answer to their enquiries confidential informa-
tion as to the credit and financial position of
persons with whom they contemplated dealing,
its work being carried on under the supervision
of a committee of the subscribers, by a
secretary, a solicitor, and various local
correspondents, and its surplus income from
subscriptions being accumulated in the hands
of its trustees and not distributed among the
subscribers. The plaintiffs brought an action
for libel against the association and one of its
correspondents in respect of a communication
sent to a subscriber in answer to his enquiry.
The defendants delivered separate defences,
each pleading (inter alia) that the communica-
tion was published on a privileged occasion
without malice. The jury found express malice
against the correspondent, and they returned
separate verdicts against the correspondent for
750L damages and against the association for
1,000L damages. The Judge held that the
occasion was not privileged and gave judg-
ment against the defendants for the above
amounts respectively. The association ap-
pealed : — Held, by Vaughan Williams, L.J.,
and Hamilton, L.J., that the occasion was not
privileged, but that the damages had been
improperly severed, and further that they were
excessive as against the association, and there-
fore that judgment should not be entered for
the plaintiffs, but that there must be a new
trial of the action : — Held, by Bray, J., that
the occasion was privileged, that the malice
of the correspondent could not be attributed to
the association, and that judgment should be
entered for the association; but, if this view
were wrong, that for the reasons given by the
other members of the Court there should be a
new trial. Macintosh v. Dun (77 L. J. P.C.
113; [1908] A.C. 390) followed by Vaughan
Williams, L.J., and Hamilton, L.J., but dis-
tinguished by Bray, J. lb.
Special Jury — Certificate " immediately
after the verdict" — Certificate Three Months
after Trial — Validity.] — The certificate which
may be granted under the County Juries Act,
1825, s. 34, by the Judge trying an action that
it is '"a cause proper to be tried by a special
jury " can only be granted immediately in
sequence of time after the verdict, unless there
are some special circumstances which prevent
the certificate being then applied for or granted,
in which case the certificate must be obtained
at the first reasonable opportunity. The Judge
may, however, expressly reserve his decision
and grant the certificate at a later date, when
he has made up his mind, nunc pro tunc.
Forsdike v. Stone (37 L. J. C.P. 301; L. E.
3 C.P. 607) followed. Barker v. Lewis a- Peat,
82 L. J. K.B. 843; [1913] 3 K.B. 34;
108 L. T. 941 ; 57 S. J. 577 ; 29 T. L. E. 565—
C.A.
Hearing in Camera. — See Scott v. Scott,
ante, col. 632.
IX. NEW TEIAL.
See also Vol. XL 502, 1799.
Motion for New Trial — " Misdirection and
non-direction.] — A notice of motion for a new
trial, grounded upon misdirection and non-
direction of the Judge at the trial of the
action, should state specifically the particulars
as to misdirection and non-direction upon
which the moving party intends to rely.
Pfeiffer v. Midland Railway (18 Q.B. D. 243)
followed. Hughes v. Dublin United Tram-
ways Co., [1911] 2 Ir. E. 114— K.B. D.
Fresh EYidence — Character of Evidence
Required.] — In order to justify the grant of a
new trial on the ground that fresh evidence
has been discovered, the evidence must be of
such a character as to justify the Court in
saying that the verdict cannot in the interest
of justice be relied on, because it was based on
1179
PEACTICE.
1180
mistake, surprise, or fraud. Warham v.
Selfridge <£• Co., 30 T. L. E. 344— C. A.
The plaintiff, describing herself as a spinster,
brought an action against the defendant for
breach of promise of marriage. The defence
was a denial of the promise. At the trial the
plaintiff obtained a verdict for damages. The
defendant applied for a new trial on the ground
of the discovery of fresh evidence, which was
not available at the time of the trial, to the
effect that the plaintiff was a married woman
at the time of the alleged promise. The defen-
dant, with the leave of the Court, filed in
support of the application affidavits made by
two persons, who deposed that the plaintiff had
told them at material times that she was a
married woman and had referred to a particu-
lar man as her husband and had corresponded
with them in her married name, and that they
had received wedding cards in the names of
the plaintiff and her said husband. The plain-
tiff made an affidavit in reply, in which she
said that, though wedding cards had been sent
out by the man mentioned, she had never in
fact been married : — Held (Pickford, L.J.,
dissenting), that the discovery of the fresh
evidence entitled the defendant to a new trial
on the issue whether the plaintiff was a
married woman at the date of the promise of
marriage. Robinson v. Smith, 84 L. J. K.B.
788; [1915] 1 K.B. 711; 59 S. J. 269;
31 T. L. E. 191— C.A.
Action against Borough Council — Juryman
a Member. "^ — In a County Court action against
a borough council one of the jurymen was a
member of the council. The jury returned a
verdict for the defendants. The Judge re-
fused a new trial on the ground that no
injustice had been done : — Held, on appeal,
that as the case had been in part decided by
one of the defendants, there must be a new
trial. Atkins v. Fidham Borough Council,
31 T. L. E. 564— D.
X. JUDGMENTS AND OEDEES.
a. Generally.
See also Vol. XL 547, 1804.
No Proceeding for a Year — Notice of Inten-
tion "to proceed" — Signing Judgment.] — To
sign judgment is not " to proceed " in a
cause or matter within the meaning of
the Eules of the Supreme Court, 1883,
Order LXIV. rule 13, and therefore the fact
that a year has elapsed since the last pro-
ceeding in an action does not make it necessary
for the party desiring to sign judgment in the
action to give a month s notice to the other
party of his intention to do so. Staffordshire
Joint-Stock Bank v. Weaver ([1884] W. N. 78 ;
Bitt. Ch. Cas. 243) overruled. Deighton V.
Cockle, 81 L. J. K.B. 497; [1912] 1 K.B. 206;
105 L. T. 802— C.A.
Action for Joint Tort — Separate Defences —
Improper Severance of Damages — Unity of
Verdict and Judgment. — Where an action
has been brought against several defendants
for an alleged joint tort for which all are found
liable, then, notwithstanding that they have
severed in their defences, only one joint verdict
can be found and one joint judgment can be
entered against them all. Greenlands, Lira.
V. Wilmshurst, 83 L. J. K.B. 1; [1913]
3 K.B. 507; 109 L. T. 487; 57 S. J. 740;
29 T. L. E. 685— C.A.
A trade protection association existed for
the purpose of providing for its subscribers in
answer to their enquiries confidential informa-
tion as to the credit and financial position of
persons w-ith whom they contemplated dealing,
its work being carried on under the supervision
of a committee of the subscribers, by a
secretary, a solicitor, and various local
correspondents, and its surplus income from
subscriptions being accumulated in the hands
of its trustees and not distributed among the
subscribers. The plaintiffs brought an action
for libel against the association and one of its
correspondents in respect of a communication
sent to a subscriber in answer to his enquiry.
The defendants delivered separate defences,
each pleading (inter alia) that the communica-
tion was published on a privileged occasion
without malice. The jury found express
malice against the correspondent, and they
returned separate verdicts against the corre-
spondent for 750Z. damages and against the
association for 1,000L damages. The Judge
held that the occasion was not privileged and
gave judgment against the defendants for the
above amounts respectively. The association
appealed : — Held, by Vaughan Williams,
L.J., and Hamilton, L.J., that the occasion
was not privileged, but that the damages had
been improperly severed, and further that they
were excessive as against the association, and
therefore that judgment should not be entered
for the plaintiffs, but that there must be a
new trial of the action. Held, by Bray, J.,
that the occasion was privileged, that the
malice of the correspondent could not be
attributed to the association, and that judg-
ment should be entered for the association ;
but, if this view were wrong, that for the
reasons given by the other members of the
Court there should be a new trial. Macintosh
V. Dun (77 L. J. P.C. 113; [1908] A.C. 390)
followed by Vaughan Williams, L.J., and
Hamilton, L.J., but distinguished by Brav,
J. lb.
Judgment on Admissions " either on the
pleadings or otherwise " — Admission by
Letter.] — The words " or otherwise " in
Order XXXH. rule 6 of the Eules of the
Supreme Court are of general application, and
are not to be read as though they restricted
admissions to admissions made " otherwise
under this Order." So that where in a letter
written by the defendant's solicitors to the
plaintiffs' solicitors there was a clear admission
of fact in the face of which it was impossible
for the defendant to succeed in the action, —
Held, that the plaintiffs were entitled to
immediate judgment. Ellis v. Allen, 83 L. J.
Ch. 590; [1914] 1 Ch. 904; 110 L. T. 479—
Sargant, J.
Judgment — Consent — Ordinary Judgment.!
— Where on the trial of an action counsel
for the defendant states that he consents to
judgment for the plaintiff, it ought to be
1181
PRACTICE.
1182
entered as an ordinary and not a consent
judgment. Swiss Bankverein v. Greaves,
32 T. L. R. 127— Bailhache, J.
Action against Two Defendants — Judgment
for Defendants — Appeal as to Judgment for
One Defendant — Schedule of Evidence Used
at Hearing.] — Order LXII. rule 14c provides
that if a judgment or order in a witness action
is appealed from there shall be a schedule of
the evidence used at the hearing. That
schedule of evidence ought to contain the
evidence used at the hearing, nothing more
and nothing less, and not merely the evidence
relative to the point under appeal. The proper
course in settling the schedule of evidence is
to enter not only the documentary' evidence,
but also the names of the witnesses. The
object of the new rules of Order LXII. was
to put into a separate document, where there
is an appeal, the evidence which was formerly
entered in the body of the order. Form of
orders discussed. Brinsmead v. Brinsmead
(No. 2), 82 L. J. Ch. 305; [1913] 1 Ch. 492;
108 L. T. 601 : 30 R. P. C. 489 ; 57 S. J. 478—
Warrington, J.
Disagreement of Jury — Formal Order Re-
fusing to Enter Judgment — Appeal.] — The
jury at the trial of the action having disagreed,
the Court, on the application of the defen-
dants, made a formal order refusing to enter
judgment so as to enable the defendants, if
they thought proper, to take the case to the
Court of Appeal. Skeate v. Slaters, Lim.,
29 T. L. R. 289— A. T. Lawrence, J.
Drawing up Orders — Delay.] — Under the
new rule 14 (o) of Order LXII. of the Rules
of the Supreme Court, it is the duty of the
Registrar, if the order has not been drawn
up at the end of a period of fourteen days
from the date of the judgment, to report to
the Judge so soon as the fourteen days have
elapsed since the order was made that the
order has not yet been drawn up and entered.
Empire Guarantee and Insurance Co., In re,
56 S. J. 444— Swinfen Eady, J.
b. Declaratory Orders.
See also Vol. XL 568. 1805.
The Court will not make a declaratory order
in favour of a plaintiff who has asked for a
declaration of right merely as a foundation for
substantive relief to which he is not entitled.
Dysart (Earl) v. Hammerton, 83 L. J. Ch.
530; [1914] 1 Ch. 822 ; 110 L. T. 879 ; 78 J. P.
297 ; 12 L. G. R. 653 ; 58 S. J. 378 ; 30 T. L. R.
379— C.A.
Application of Order XXY. rule 5 to
Crown.] — Order XXV. rule 5 of the Rules of
the Supreme Court lays down no limit to the
class of cases to which it applies, and the
Court cannot hold that a case in which the
Crown is a defendant is impliedly excepted.
Burghes v. Att.-Gen., 80 L. J. Ch. 506;
[1911] 2 Ch. 139 ; 105 L. T. 193 ; 55 S. J. 520 ;
27 T. L. R. 433— Warrington, J.
c. Setting Aside and Impeaching.
See also Vol. XI. 587, 1808.
Judgment Obtained by Default.] — The
Court, in setting aside a judgment obtained
through default by the defendant in pleading
and in allowing the defendant to defend the
action, has no power to impose upon him the
condition that he shall not plead the Gaming
Act. Pooley v. O'Connor, 28 T. L. R. 460—
C.A.
Assignment of Judgment — Delay.] — The
plaintiff brought an action against the defen-
dant on two cheques given for a gambling
debt. The defendant did not appear at the
trial and plaintiff obtained judgment, but no
proceedings were taken to enforce it. Later
a money-lender obtained a judgment against
the plaintiff, and the judgment debt due from
the defendant to the plaintiff was assigned to
him. Subsequently, one year after the judg-
ment had been obtained against the defendant,
he applied to have it set aside : — Held, that
the money-lender was in the position of a
bona fide holder for value with regard to the
judgment debt due from the defendant, and
there was no reason to exercise the discretion
of the Court by setting it aside. Harley v.
Samson, 30 T. L. R. 450— Scrutton, J.
Writ for Liquidated Amount — Reduction of
Amount by Part Payment — Judgment in
Default of Appearance for Original Amount —
Mistake of Plaintiff — No Application by Plain-
tiff to Reduce Amount.] — A sum indorsed on
a writ as a liquidated demand was reduced
by part payment after the writ was issued, but
judgment was nevertheless entered in default
of appearance for the original amount, owing
to a mistake of the plaintiff. Subsequently
the plaintiff issued a bankruptcy notice
founded on his judgment, which, however,
gave credit for the sum paid in deduction,
but he took no steps to correct his judgment
and opposed a suggestion that it should be
reduced to the proper amount. Upon applica-
tion by the defendant, — Held, that the judg-
ment must be set aside, it being the duty of
a creditor, if he obtains a wrong judgment,
and not the duty of the debtor, to have it
set right. Muir v. Jenks, 82 L. J. K.B. 703:
[1913] 2 K.B. 412; 108 L. T. 747; 57 S. J.
476— C.A.
Service of Writ on Limited Company by
Posting.] — The plaintiffs, who could lawfully
have effected service of a writ against the
defendant company by posting the same in
a prepaid cover properly addressed, for greater
security registered the same ; and in conse-
quence of such registration the letter was not
in fact delivered until the day following the
ordinary course of post. The plaintiffs bona
fide believed that the letter had been delivered
in the ordinary course of post, and acting on
such belief signed judgment in default of
appearance immediately after the expiration
of the period allowed for entering an appear-
ance : — Held, on motion bj' the defendants to
set aside the judgment, that, notwithstanding
section 26 of the Interpretation Act, 1889,
11S.3
rKACTICE.
1184
where the writ had not in fact been delivered
in the ordinary course of post, the defendants
were entitled to have the judgment set aside
on the ground that it had been signed pre-
maturely. Rylands Glass Engineering Co. v.
Phoenix Co., Lim., [1911] 2 Ir. R. 532—
K.B. D.
d. Varying and Amending.
Sec aI.-<o Vol. XI. 596, 1809.
Error in Order.] — The Court has jurisdiction
to correct an error in an order arising from
an accidental slip on the part of the person
■who obtained the order and seeks to have it
corrected, although there was no error in the
sense that the order as made did not carry
out the intention of the Court. McCaughey v.
Stringer, [1914] 1 Ir. R. 73— M.R.
Judgment against Married Woman in De-
fault of Appearance — Adoption of Ordinary
Form by Inadvertence — Omission of Reference
to Separate Property — Error Arising from
Accidental Slip or Omission — Application to
Correct.] — The plaintiffs, having brought an
action in the High Court against the defen-
dant, a married woman sued in respect of her
separate estate, recovered judgment against
her in default of appearance. Through the
inadvertence of a clerk of the plaintiffs' then
solicitors, the judgment was signed and
entered in the ordinary form, instead of in
the form appropriate to judgment against a
married woman in such a case, which includes,
in addition to the words of the ordinary form,
a statement to the effect that the sum
recovered is to be payable out of the separate
property of the defendant and not otherwise.
After the lapse of ten years, the plaintiffs
applied to amend the judgment under
Order XXVin. rule 11, which provides
(inter alia) that errors in judgments arising
from any accidental slip or omission may at
any time be corrected : — Held, by Vaughan
Williams, L.J., and Buckley, L..J., that the
case did not come within the rule, and that
the Court had not power to make the amend-
ment. Held, by Kennedy. L.J., that the case
came within the rule, but that in the circum-
stances the Court in the exercise of its
discretion should refuse to allow the amend-
ment. Oxley V. Link. 83 L. J. K.B. 602;
[1914] 2 K.B. 734 : 110 L. T. 248— C. A.
e. Examination of Judgment Debtor.
By rule 32 of Order XLII. of the Rules of
the Supreme Court, 1883, " when a judgment
or order is for the recovery or payment of
money . . . the Court or Judge may make an
order for the attendance and the examination
of such debtor " ; and by rule 33, "In case of
any judgment or order other than for the
recovery or payment of money, if any difficulty
shall arise in or about the execution or enforce-
ment thereof, any party interested may apply
to the Court or a Judge, and the Court or
Judge may make such order thereon for the
attendance and examination of any party or
otherwise as may be just." The plaintiff
obtained against the defendant two judgments,
which remained largely unsatisfied, and under
an order made under Order XLII. the defen-
dant was examined as to her means. On a
subsequent application by the plaintiff for the
appointment of a receiver of certain effects
of the defendant an interim injunction was
granted restraining the defendant from deal-
ing with them. Subsequent]}' a receiver was
appointed and he ascertained that certain
articles had been removed from the defendant's
residence. It appeared that some of the
articles had been removed while the interim
injunction was in force, and that a picture had
been sold, but the plaintiff could not ascertain
what had become of the other articles : — Held,
that the plaintiff was entitled to a further
order under rule 32 for the examination of
the defendant as to whether she had any
means of satisfying the judgments ; and
(Buckley, L.J., dissenting) that the plaintiff
was also entitled to an order under rule 33
for the examination of the defendant as to
the execution and enforcement of the injunc-
tion and as to the defendant's dealings with
certain property subject to the injunction,
inasmuch as the object of rule 33 was to make
orders under rule 32 more efficacious. Sturgcs
V. Warwick (Countess), 58 S. J. 196;
30 T. L. E. 112— C.A.
f. Enforcing Performance.
See also Vol. XL 630, 1810.
Application by Personal Representative for
Liberty to Issue Execution." — Where a judg-
ment creditor dies after judgment, an applica-
tion by his personal representative for leave
to issue execution should be made ex parte.
The practice as to when applications under
Order XLII. rule 24 (a) [corresponding to
English Order XLII. rule 23 (a)] should be
ex parte and when on notice, stated. Meehan
V. Tynan, [1915] 2 Ir. R. 52— K.B. D.
By Execution.] — See Execution.
XI. MOTIONS AND RULES.
See also Vol. XL 665, 1812.
Notice of Motion — Service before Appearance
— Address for Service.] — Leave having been
obtained to serve a notice of motion on a
defendant before appearance, a copy of the
notice of motion was left at her address : —
Held, sufficient notice of motion. Jarvis v.
Hemmings (No. 2), 56 S. J. 271 — Warrington,
J.
Time betvreen Service and Hearing —
" Two clear days " — Sunday Excluded.] —
Sunday is not to be reckoned in computing
the " two clear days " required by Order LII.
rule 5 to elapse between service of notice of
motion and the day named for hearing.
Brammall v. Mutual Industrial Corporation,
84 L. J. Ch. 474 ; 112 L. T. 1071 ; 59 S. J. 382
— Astbury, J.
Chancery System of Linked Judges —
Non-appearance of Defendant — Name of Judge
to Whom Motion Assigned.] — A notice of
1185
PRACTICE.
1186
motion which states that the Court will be
moved before Mr. Justice A. is sufficient,
although the Court is in fact moved before
Mr. Justice B., the Judge before whom, owing
to the system of linked Judges adopted in the
Chancery Division, the motions in actions
assigned to Mr. Justice A. are made, notwith-
standing that the respondent to the motion
does not appear ; and an order can properly
be made on such a motion by Mr. Justice B.
in accordance with its terms. Roinney, Lim.,
In re; Stuart v. The Company, 60 S. J. 141 —
Siirgant, J.
Originating Motion Placed in Non-witness
List — Hearing Fee.] — Where, to suit the con-
venience of the Court, an originating motion
is directed to be placed in the non-witness
list, no hearing fee ought to be demanded.
Watson (f Co.'s Application, In re, 28 E. P. C.
167; 55 S. J. 292— Parker. J.
Costs of Abandoned Motion — Notice.] —
Although it is usual for a defendant to give
notice to the other side that he claims the costs
of an abandoned motion, there is nothing in
the Rules to prevent such costs being given
where no notice has been served. Hinde v.
Power, [1913] W. N. 184— Eve, J.
XII. SUMMONSES.
.S'rp aho Vol. XI. 685, 1812.
Service on Foreigner out of Jurisdiction —
Summons to Set Aside.] — Leave for service
out of the jurisdiction of a summons, order,
or notice under the provisions of rule 8a of
Order XI. of the Rules of the Supreme Court,
1883, will only be granted in the circum-
stances in which such leave would be granted
in the case of a writ of summons under rules 1
and 8 of the Order. The manner of service
will therefore depend on whether the country
in which it is to be effected is or is not a
country to which the provisions of Order XL
have been applied by the Lord Chancellor.
Aktieholaget Robertsfors and SociH6 .inonyme
des Papeteries, In re, 80 L. J. K.B. 18;
[1910] 2 K.B. 727; 103 L. T. 603— D.
Originating Summons — Trade Union — Fund
for Specific Purpose — Failure of Specific Pur-
pose— Resulting Trust.] — An application to
the Court for the declaration of a resulting
trust on the failure for illegality of the specific
trusts of a particular instrument cannot be
made by originating summons, either by virtue
of Order LIV.A, rule 1, or of Order LV! rule 3.
Amalgamated Society of Railway Servants,
In re; Addison v. Pilch'er, 80 L. J. Ch. 19;
[1910] 2 Ch. 547 ; 103 L. T. 627 ; 54 S. J. 874 ;
27 T. L. R. 12— Swinfen Eady. J.
Foreclosure.] — An action commenced by
the issue of an originating summons against
a mortgagor asking for foreclosure of a mort-
gage of personal estate is not an action
" founded on contract, or alleged breach of
contract " within Order XL rule 1 (e), and the
summons cannot be served out of the jurisdic-
tion. Hughes v. Oxenham, 82 L. J. Ch. 155;
[1913] 1 Ch. 254; 108 L. T. 316; 57 S. J. 158
-C.A.
Costs.] — Costs of an originating sum-
mons to determine title to real estate ordered
to be paid by the unsuccessful respondent.
Halston, In re: Ewen v. Halston, 81 L. J.
Ch. 265: [1912] 1 Ch. 435; 106 L. T. 182—
Eve, J.
Compromise — Consent Order — Compromise
Varying the Rights of the Parties — Attempt to
Enforce — Independent Proceedings Neces-
sary, j — Wheie an order had been made by
consent in 1909 and shares of income appor-
tioned under such order, but owing to a fall
in interest one of the parties desired that the
other should give up possession of certain
properties, part of the subject-matter of the
order, to the trustees, in order that her interest
might be made up to the amount given her
by such order, or that a receiver of such pro-
perties should be appointed, — Held, that such
an application could not be made by a summons
in the original action, but that independent
proceedings must be taken. Salt v. Cooper
(50 L. J. Ch. 529; 16 Ch. D. 544) explained.
Hearn, In re; De Bertodano v. Hearn,
108 L. T. 452; 57 S. J. 405— Sargant, J.
Affirmed, 108 L. T. 737; 57 S. J. 443— C.A.
Order in Chambers — Order not Passed and
Entered — Adjournment to Judge — Jurisdic-
tion.]— An order made liy the Master upon a
summons in chambers does not become finally
effective till it has been passed and entered,
and, until then, the Judge (or, semble, the
Master) has power at any time to direct the
matter to be adjourned to the Judge, who will
deal with the summons upon all the evidence
then before him, and, if the circumstances
require, make a different order. Dictum o
Malins, V.C., in Bartlett, In re; Netvman v
Hook (50 L. J. Ch. 205; 16 Ch. D. 516), dis
tinguished. Thomas, In re; Hartley v
Thomas, 80 L. J. Ch. 617; [1911] 2 Ch. 389;
105 L. T. 59; 55 S. J. 567— Warrington, J.
XIII. FUNDS AND SECURITIES IN
COURT.
See also Vol. XI. 738, 1815.
Administration Proceedings — Declaration.]
— If in the course of administration proceed-
ings a Judge has made a declaration of rights,
and money in Court is carried over to a
separate account in accordance with such
declaration, the right to the money cannot be
impeached so long as the declaration remains
standing, but the same grounds — for example,
fraud or the discovery of facts that could not
with reasonable diligence have been discovered
before — that would suffice to have the declara-
tion set aside would suffice also to have the
title to the account altered. If there is no
declaration of title by the Court, and the
money is carried over in the action to ad-
minister the trust funds for convenience of
administration only, then the Court can at any
time before final distribution rectify and adjust
such administration order in such a way as to
ensure full and complete justice in the final
distribution of the fund. Cloutte v. Storey,
80 L. J. Ch. 193; [1911] 1 Ch. 18; 103 L. T.
617— C.A.
38
1187
PEACTICE.
1188
Payment Out on Erroneous AffidaYit — Pos-
sible Beneficiary not Party to Petition — Claim
for Compensation against Consolidated Fund.]
— Where the Court, acting upon a mistake as
to fact, but not upon any fraud, or forgery,
has ordered the payment out of a fund in Court
to a wrong person, and the Paymaster-General
has acted upon this order, it will not after-
wards discharge the order so made, and order
payment out to tlie person properh' entitled,
so as to enable this person (on non-payment of
the fund by the Paymaster-General in accord-
ance with the second order) to claim that the
Consolidated Fund is liable (by virtue of sec-
tion 5 of the Court of Chancery (Funds) Act,
1872, and section 2 of the Supreme Court of
Judicature (Funds. &c.) Act, 1883) to make
good to him the amount so ordered to be paid
to him by the Court. Williains. In re.SO L. J.
Oh. 8; [1910] 2 Cb. 181: 103 L. T. 390;
54 S. J. 736; 26 T. L. R. 688— Swinfen
Eady, J.
But quare, as to whether, in cases in which
the original order had been obtained by fraud,
or forgery, the Court would not so act. 76.
Payment Out — Dormant Fund — Absence of
Beneficiaries.! — It is contrary to the practice
of the High Court to pay out a dormant fund
to a party legally entitled to it without the
beneficiaries being before the Court. This rule
applies notwithstanding that the person apply-
ing for payment is a judicial factor appointed
under Scotch law. Gordon v. Smith. 108 L. T.
951 ; 57 S. J. 595— Neville, J.
Order for Repayment — Enquiry as to Un-
claimed Certificates — Jurisdiction to Exclude
Holders of Bonds not Claiming within Limited
Time.l — Where great length of time has
elapsed from the date of the judgment declar-
ing that funds in the hands of trustees ought
to be returned to and divided between the
holders of certificates for rateable proportions
in respect of bonds, and a residuum of bond-
holders had omitted to establish their claims,
— Held, that the Court has jurisdiction to
make an order determining the class entitled
to the benefit of its order and giving to those
asserting their claims all that is left of the
fund. Wilson v. Church. 106 L. T. 31—
Eve, J.
XI\\ TIME.
Order LXIY. rule 3— Bill of Exchange-
Expiration of Time on Sunday — Writ Issued
on Following Monday .^ — The time for pay-
ment of a promissory note, including the days
of grace, expired on Sunday, September 22,
1906. The writ in an action against the
defendants as the makers of the promissory
note was issued on Mondav, September 23,
1912 -.—Held, that Order LXR\ rule 3, which
provided that " where the time for doing any
act or taking any proceeding expires on a
Sunday . . . and by reason thereof such act
or proceeding cannot be done or taken on that
da}', such act or proceeding shall, so far as
regards the time for doing or taking the same.
be held to be duly done or taken if done or
taken on the day on which the office shall next
be open,'" had no operation on the Statute of
Limitations, and that therefore the writ which
was issued on Monday, September 23, 1912,
could not be considered as having been issued
on Sunday, September 22, 1912. Gelmini v.
Moriggia, 82 L. J. K.B. 949; [1913] 2 K.B
549: 109 L. T. 77; 29 T. L. E. 486—
Channell, J.
XV. PLEADING.
See also Vol. XL 810, 1816.
a. Generally.
Action by Lunatic, not so Found, by Next
Friend— Issue of Sanity of Plaintiff Raised by
Defence.] — An action being brought by a
person of unsound mind, not so found by
inquisition, by her next friend, to recover
documents in the hands of the defendants, and
the defendants by their defence alleging that
the plaintiff was not of unsound mind, and
that they held the documents on her behalf : —
Held, that the issue of the sanity of the plain-
tiff, or the authority of her representatives,
could not be raised on the pleadings. Rich-
mond V. Branson, 83 L. J. Ch. 749; [1914]
1 Ch. 968; 110 L. T. 763; 58 S. J. 455—
Warrington, J.
b. Amending and Striking out Pleadings.
Amendment of Pleading Setting up Defence
of Public Authorities Protection Act — Delay.]
— Circumstances in which the Court refused
the defendants leave to amend their points of
defence by pleading the Public Authorities
Protection Act where the application for leave
to amend was made at a very late stage of the
proceedings, and where costs would not have
been an entire compensation to the plaintiff
if leave were granted. Aronson v. Liverpool
Corporation, 77 J. P. 176; 29 T. L. R. 325—
Pickford, J.
Striking out — Interlocutory Application —
Power of Court to make Order.] — Where it is
clear that an action against a trade union and
others is one which, as against the trade union,
is prohibited by section 4, sub-section 1 of the
Trade Disputes Act, 1906, the Court may, on
an interlocutory application under Order XXV.
rule 4, strike out the name of the trade union
from the writ and pleadings on the ground
that they disclose no reasonable cause of
action against the trade union : — So held by
Vaughan Williams, L.J., and Kennedy, L.J. ;
Farwell, L.J., dissenting. Vacher v. London
Society of Compositors, 81 L. J. K.B. 1014;
[1912] 3' K.B. 547; 106 L. T. 778; 56 S. J.
442; 28 T. L. R. 366— C. A.
Supplemental Action — Striking out
Pleading as Embarrassing.] — Pleading that
an action be treated as supplemental to
another action is unintelligible and will be
struck out as embarrassing. Nitrate Securities
Trust V. Williams, 106 L. T. 730— Neville, J.
Statement of Claim — Principles.] —
Order XXV. rule 4, enabling the Court to
strike out a statement of claim as disclosing
no reasonable cause of action, was not in-
1189
PRACTICE.
1190
tended to take the place of a demurrer, and it
ought not to be applied to an action involving
serious investigation of ancient law and ques-
tions of general importance. Dyson v. Att.-
Gen., 80 L. J. K.B. 531: [1911] 1 K.B. 410;
103 L. T. 707; 55 S. J. 168; 27 T. L. E. 113
— C.A.
Libel— Whether Words Capable of De-
famatory Meaning.] — On an application to
strike out a statement of claim in a libel action
on the ground that it discloses no reasonable
cause of action, the Court will not strike it
out on the ground that the words are incapable
of a defamatory meaning, but will leave the
question whether they are capable of such a
meaning to be dealt with bv the Judge at the
trial. Moore v. Lawson, 31 T. L. R. 418
—C.A.
Inconsistent Pleas — Payment into Court
Admitting and Denying Liability.] — A defen-
dant, having by one paragraph of his defence
paid monej' into Court admitting liability, and
by another paragraph of his defence paid
money into Court denying liability, and the
plaintiff in the action making more than a
single claim : — Held, that one of the para-
graphs must be struck out and that the defence
must specifically state with regard to which
claim of the plaintiff the money was paid into
Court. Chapman v. Westerby, 58 S. J. 340
— Warrington, J.
Paragraphs of Defence as Embarrass-
ing.]— In an action by the plaintiffs to obtain
a declaration of the validity of a notice served
by thera upon the defendant under section 5
of the City of London (Spitalfields Market)
Act, 1902, of their intention to purchase his
interest in Spitalfields Market, the Court, on
the plaintiffs' application, struck out, as
embarrassing, certain paragraphs of the
defence which i-eferred to a previous litigation
as to the market and alleged that the plaintiffs'
conduct had been unfair and improper, and
that by their conduct in that action the plain-
tiffs had disentitled themselves to enforce the
notice served by them. London Corporation
V. Horner, 111 L. T. 512: 78 J. P. 229;
12 L. G. E. 832— Neville, J.
XVI. PEOCEEDINGS UNDEE COUETS
(EMERGENCY POWERS) ACT, 1914.
Judgment — Proceeding to Execution — Appli-
cation for Leave — Discretion.] — The plaintiff,
who was a money-lender, obtained judgment
against the defendant, a lieutenant in the
Army, for the amount of a loan, but not for
the interest. The defendant was heir to cer-
tain estates, but he had mortgaged his rever-
sionary interests and had practically no assets
beyond his pay as an officer, and having been
wounded was in hospital, and so could not
raise money by insuring his life. The Judge
in chambers, in these circumstances, refused
leave under the Courts (Emergency Powers)
Act, 1914, 8. 1, sub-s. 2, to proceed to execu-
tion : — Held, that the above enactment gave
the Judge an absolute discretion, and it had
been rightly exercised. StirHng v. Norton,
31 T. L. R". 293— C.A.
Order for Payment — Leave to Enforce —
Application to Court of Appeal — Enquiry as to
Facts — Reference to Master.]— By rule 2 (1;
made under section 1, sub-section 1 of the
Courts (Emergency Powers) Act, 1914, the
Court to which an application is made under
section 1, sub-section 1 of the Act for leave to
enforce an order for the payment of money
shall be the Court by which the order has been
made or in which it is being sought : — Held,
that where the Court to which the application
must be made is the Court of Appeal, that
Court will refer the facts to a Master for
enquiry and report and will act on such report.
Evans\. Main Colliery Co., 31 T. L. E. 127
—C.A.
Mortgage — Personal Property — Transfer
into Name of Mortgagee — Realisation of
Security — "Mortgagee in possession."] —
The exception " by way of sale by a mortgagee
in possession " from the provisions of section 1,
sub-section 1 (b) of the Courts (Emergency
Powers) Act, 1914, applies to a mortgagee of
debentures of a company which have been
transferred into the name of the mortgagee. A
mortgagee of such a security may accordingly
realise his security by sale without any
application to the Court under the Act. Ziman
V. Komata Reef Gold Mining Co., 84 L. J.
K.B. 1162: [1915] 2 K.B. 163; 113 L. T. 17;
31 T. L. E. 274— C.A.
Stock Exchange — Power of Committee —
I nterest — Scrip — Whether ' ' security . " ] — The
defendant on July 30, 1914, instructed the
plaintiff, who was a broker on the London
Stock Exchange, to buy certain shares, and
the plaintiff bought the shares from a firm of
jobbers. Before that date the mid-August
account day had been fixed by the Stock
Exchange Committee for August 13, but on
July 31 it was postponed to August 27. On
August 6 a proclamation of a moratorium came
into force, and subsequently the mid-August
account day was postponed to November 18.
In November the defendant refused to take
up the shares and the plaintiff sold the shares
against him and brought an action to recover
the difference in price together with interest
from August 13 : — Held, that the plaintiff was
entitled to sell without applying to the Court
under the Courts (Emergency Powers) Act,
1914, as the scrip which the plaintiff received
from the jobber was not a security within
section 1, sub-section 1 (6) of that Act; that
the Stock Exchange Committee had no power
to postpone the date for the completion of the
contract, but that the case came within the
moratorium so as to make interest payable,
and the plaintiff was entitled to recover the
amount claimed. Barnard v. Foster. 84 L. J.
K.B. 1244; [1915] 2 K.B. 288; 31 T. L. R.
307— Sankey, J. Affirmed, 32 T. L. E. 88
—C.A.
Winding-up Petition — Discretion.] —The
Courts (Emergency Powers) Act, 1914, does
not confer on the Court a discretion to dismiss
a petition for the winding up of a company or
to order it to stand over. Globe Tru.«f. In re.
84 L. J. Ch. 903; 113 L. T. 80; 59 S. J. 529;
31 T. L. E. 280— Astbury, J.
1191
PRACTICE— PEINCIPAL AND AGENT.
1192
Judgment CFeditor — War — " Proceed to
execution on, or otherwise to the enforcement
of, any judgment."] — A petition by a judg-
ment creditor to wind up a company is not a
proceeding " to execution on, or otherwise to
the enforcement of " the judgment within sec-
tion 1, sub-section 1 (a) of the Courts (Emer-
gency Powers) Act, 1914, and a winding-up
order may therefore be made without leave
from the Court in which the judgment was
obtained. Company (0,022 of 1915), In re;
Company (0,023 of 1915), In re, 84 L. J. Ch.
382; [1915] 1 Ch. 520; 112 L. T. 1100; [1915]
H. B. R. 65; 59 S. J. 302; 31 T. L. R. 241
— C.A.
Bankruptcy Petition — Proceeding to Execu-
tion on, or otherwise to the Enforcement of,
any Judgment.] — During the continuance of
the present war a judgment creditor can
present a bankruptcy petition founded upon
his judgment debt without obtaining the leave
of the Court by which judgment was given.
Sub-section 1 of section 1 of the Courts (Emer-
gency Powers) Act, 1914, does not apply to
bankruptcy petitions. Silber, In re {No. 1),
84 L. J. K.B. 971 ; [1915] 2 K.B. 317 ; [1916]
H. B. R. 95 ; 113 L. T. 763 ; 59 S. J. 271— C.A.
Debtor a Subject of Enemy State — Insol-
vency Due to War.] — By reason of section 1,
sub-section 7 of the Courts (Emergency
Powers) Act, 1914, the Court has no power,
under section 1, sub-section 3 of the same Act,
to stay a bankruptcy petition against a debtor
who is a subject of a State at war with His
Majesty. Radeke, In re; Jacobs, ex parte,
84 L. J. K.B. 2111; [1915] H. B. R. 185;
31 T. L. R. 584— D.
Non-payment of Rent — Right of Re-entry
- Power to Defer Execution — "Absolute
discretion."] — On an application for judgment
for possession of property held by virtue of a
lease under a power of re-entry in the lease
for non-payment of rent the Master and Judge
refused to stay execution under the Courts
(Emergency Powers) Act, 1914, s. 1. The
lessee appealed : — Held, that as the matter
was in the " absolute discretion " of the Court
under section 1, sub-section 2 of the Act, and
the Master and Judge had exercised their dis-
cretion, the Court of Appeal would not interfere
with their decision. Lyric Theatre, Lim. v.
L. T., Lim., 84 L. J. K.B. 712; 31 T. L. R.
88— C.A.
Ejectment for Non-payment of Rent —
Leave to Issue Execution.] — An action of
ejectment for non-payment of rent comes
within section 1, sub-section 1 of the Courts
(Emergency Powers) Act, 1914. Perry v.
Fitzgerald, [1915] 2 Ir. R. 11— K.B. D.
Costs of Summons.] — On a summons to
issue execution under the Courts (Emergency
Powers) Act, 1914, where the defendant does
not appear, the costs of the summons will
be allowed, subject to the Judicature Rules
regulating and limiting costs. In ordinary
cases, where there are no circumstances to
influence judicial discretion otherwise, the full
costs in default of appearance are 11. 10s., and
half costs 155. Where the debtor appears and
obtains the benefit of terms under the statute,
unless there are particular circumstances
influencing the Judge to order otherwise, the
parties abide their own costs. Costs of counsel
will only be allowed in exceptional cases. The
normal practice as to costs as above laid down
does not interfere with the discretion of the
Judge in particular circumstances to refuse or
increase costs. Watson d Co. v. Joyce, [1915]
2 Ir. R. 123— K.B. D.
PREMIUMS.
On Insuring.] — See Insurance; Shipping
(Insurance).
PREROGATIVE.
See WAR.
PRESCRIPTION.
See EASEMENT.
PRESUMPTION.
See EVIDENCE.
Of Fault.] — See Shipping.
PRINCIPAL AND
ACCESSORY.
See CRIMINAL LAW.
PRINCIPAL AND AGENT.
A. Creation of Relationship, 1193.
B. Del Credere Agent, 1193.
C. Rights and Liabilities of Principal and
Agent.
1. Right of Agent to Commission and
Remuneration, 1194.
1193
PEINCIPAL AND AGENT.
1194
2. Duties Arising from the Fiduciary
Relationship, 1196.
3. Liability of Agent to Account, 1197.
4. Right of Agent to Close Account, 1198.
5. Right of Agent to Indemnity against
Loss, 1198.
D. Rights and Liabilities ok Principal and
Third Parties.
1. Rights of Principal against Tliird
Party.
a. Fraud of Agent, 1200.
b. Payment to Agent when a Dis-
charge, 1202.
2. Liability of Principal to Third Party.
a. On Contracts, 1203.
b. Other Acts of Agent.
i. Generally, 1204.
ii. Fraud, 1205.
iii. Negligence, 1205.
iv. In other Cases, 1205.
3. Effect of Factors Act, 1206.
E. Rights and Liabilities of Agents and
Third Parties.
1. .Action by Agent, 1207.
2. Liability of Agent.
a. On Contracts, 1208.
b. For Assumption of Authority, 1209.
A. CREATION OF RELATIONSHIP.
See also Vol. XL 931, 1823.
Whether Agreement made as Agent or as
Principal.] — Where an agreement in writing
gave an option to purchase certain real estate
at the price and on the terms set out in the
agreement, and went on to agree to pay to
the person to whom the option was given a
commission on the sale of the property on the
terms mentioned, — Held, that an option to
purchase having been given in unequivocal
terms, the subsequent clause as to payment of
commission did not convert the agreement into
a contract of agency under which the agent had
no right to purchase as principal. Livingstone
V. Ross (70 L. J. P.C. 58; [1901] A.C. 327)
distinguished. Kelly v. Enderton, 82 L. J.
P.C. 57 ; [1913] A.C. 191 ; 107 L. T. 781— P.C.
B. DEL CREDERE AGENT.
Liability for Performance of Contract.] —
The liability of a del credere agent for sale
does not extend so as to entitle the seller,
while the buyer is solvent and a dispute is
pending as to what sum is due from the buyer
to the seller in respect of the price, to call
upon the agent to pay the price or otherwise
perform the contract. Gabriel v. Churchill
't Sim, 84 L. J. K.B. 233; [1914] 3 K.B.
1272; 111 L. T. 933; 19 Com. Cas. 411;
58 S. J. 740; 30 T. L. R. 658— C. A.
Judgment of Pickford, J. (83 L. J. K.B.
491; [1914] 1 K.B. 449), affirmed. lb.
C. RIGHTS AND LIABILITIES OF
PRINCIPAL AND AGENT.
1. Right of Agent to Commission and
Remuneration.
See also Vol. XL 951, 1826.
Introducing Purchaser — Principal Finding
Purchaser.] — A contract by which a principal
agrees to pay a commission to an agent if the
latter introduces a purchaser of the principal's
property is, in the absence of specific agree-
ment to the contrary, subject to an implied
term that the principal shall be at liberty to
sell the property to a purchaser found by him-
self, and if the principal by so doing prevents
the agent from introducing a purchaser, the
agent is not entitled to commission. Brinson
V. Davies, 105 L. T. 134; 55 S. J. 501;
27 T. L. R. 442— D.
Purchaser Introduced by Agent — Sale with-
out Agent's Knowledge.] — If the relation of
buyer and seller is really brought about by
the act of the agent, the latter is entitled to
commission, although the actual sale has not
been effected by him. Burchell v. Cowrie
and Blockhouse Collieries, 80 L. J. P.C. 41;
[1910] A.C. 614; 103 L. T. 325— P.C.
No duty lies upon an agent to communicate
to his principal proposals which the principal
had in effect told him could not be accepted.
If the agent introduces a purchaser whose
offer the agent advises his principal not to
accept, and the principal behind the agent's
back sells to such purchaser, the agent is
entitled to commission. lb.
House Agent — Instructions to Find Tenant
or Purchaser — Introduction of Tenant — Sub-
sequent Purchase by Tenant — Right to Com-
mission on Sale — Efficient Cause in Bringing
about Sale.' — A house agent was instructed
by a principal to find a tenant for a house
at a rent of 120Z. a year or a purchaser for
2,500/. The agent failed to find a purchaser,
but found a tenant at the rent of 1101. a year
for three years. The agent was paid com-
mission on this letting. At the end of the
three years the tenant's wife bought the house
for 1,900/. In an action in the County Court
by the agent against the principal to recover
commission on the sale, the County Court
Judge found that, though the agent introduced
the propertj- to the tenant and his wife, that
introduction was not the effective cause of
the subsequent sale, and he accordingly gave
judgment for the defendant : — Held, that the
proper test in an action by a house agent to
recover commission was that which was laid
down bv Collins, M.R.. in Millar, Son d Co.
V. Radford (19 T. L. R. 575)— namely,
whether the introduction was an efficient cause
in bringing about the letting or the sale ; and
that, the County Court Judge having answered
that question in the negative on evidence
which justified such an answer, his finding was
conclusive against the agent's claim. Nightin-
gale V. Parsons, 83 L.'J. K.B. 742; [1914]
2 K.B. 621; 110 L. T. 806— C. A.
1195
PRINCIPAL AND AGENT.
1196
"Half-commission man" — Seat in Stock
Broker's Office — Contract of Employment —
Termination of Service — Subsequent Orders —
Prior Orders to Carry oyer.]— The plaintiff was
a " half -commission man " and the defen-
dants were stockbrokers and members of the
London Stock Exchange, and an agreement
was made between the parties that the plain-
tiff should have a share of the commission
on orders introduced by the plaintiff and
executed by the defendants. The plaintiff
had a seat in the defendants" ofiSce, and was
paid by commission, and not by salary, for
helping to carry out the business in the office.
The plaintiff, having left the defendants'
service, brought an action against them to
recover a share of the commission earned by
them on transactions which they as brokers
had entered into, after he had left their service,
on behalf of persons whom he had introduced
to them during that service : — Held, that the
agreement was one which gave rise to the
relationship of employment, and that, as there
was no evidence that the parties had agreed
that commission was to be paid for an inde-
finite period after the employment should
cease, the plaintiff was not entitled to com-
mission on orders given after the termination
of his employment, but that where during his
employment orders had been given to open
and carry over stocks the plaintiff was
entitled to commission on those transactions
until thev were closed. Bickley v. Browning,
Todd d- Co., 30 T. L. E. 134— Pickford, J.
Agreement with Firm as Agents and Busi-
ness Managers — Dissolution of Firm.]— The
defendant in August, 1911, gave a commission
note to S. and R., who were in partnership
as theatrical agents, authorising them to act
as her agents and business managers for five
years, with the option of a further five years,
and agreeing to pay a commission of 10 per
cent, on all salaried work undertaken by her.
S. and R. dissolved partnership in July,
1912 : — Held, that the commission note did
not entitle them to claim commission in
respect of engagements on salaries obtained by
the defendant after the dissolution of their
partnership. Sales v. Cri.tpi. 29 T. L R
491- -Horrid ge. .1.
Commission Payable on Receipt of Money —
Default of Contractors — Liability for Commis-
sion.]— By a contract between the plaintiffs
and the defendants it was provided that if
the plaintiffs procured for the defendants a
contract to supply certain motor lorries to the
French Government, the defendants were to
pay the plaintiffs a commission immediately
after the defendants had received payment
from the French Government. The lorries
were to be supplied from Turin, the defen-
dants not being the makers. The contract
was procured by the plaintiffs for the defen-
dants, but the latter were unable to get the
lorries and the French Government cancelled
the contracts and paid the defendants nothing.
In an action to recover the commission, —
Held, that as the defendants had put them-
selves forward as being able to supply the
lorries, the non-receipt of the money was
caused by the default of the defendants, and
the commission was payable. Vulcan Car
Agency v. Fiat Motors, Lira., 32 T. L. E. 73
— Rowlatt, J.
2. Duties Arising from the Fiduciary
Relation' SHIP.
See also Vol. XI. 971, 1836.
Private Enquiry Agent — Liability for Dis-
closures by Servant — Warranty of Secrecy.] —
A private enquiry agent, although he adver-
tises that secrecy is an essential of his busi-
ness, does not impliedly warrant the secrecy
of persons who have at one time been in, but
have afterwards left, his service. Whether
there is such a warranty in the case of a
servant while in the service of the enquiry
agent, qucere. Easton v. Hitchcock, 81 L. J.
K.B. 395 ; [1912] 1 K.B. 535 ; 106 L. T. 126 ;
56 S. J. 254; 28 T. L. R. 208— D.
Purchase by Agent at Undervalue of Charge
on Principal's Estate.] — Where an agent pur-
chases at an undervalue a charge on the estate
of his principal, and while in receipt of the
rents charges his principal with interest on
the face value of the charge, the Court, in the
absence of evidence that the principal after
full disclosure of the circumstances consented
to the agent retaining the full benefit of the
transaction for his own use, will, in treating
him as trustee for his principal, hold that the
extra interest retained should be applied to-
wards the extinguishment of the charge ; and
lapse of time, even though it may possibly
have caused the loss of material evidence, will
not shift the burden of proof, originally rest-
ing on the agent, to the principal. Patten
V. Hamilton, [1911] 1 Ir. R. 46— C. A.
Notes of Searches in Public Records — Pro-
perty in Notes — Use of Notes — Confiden-
tiality.]— A professional searcher of records,
who was employed to make searches in public
records of entries relating to persons of a
certain name, searched the records and made
notes, of which he supplied a transcript to his
employer. He was paid according to the
amount of the work done. The work lasted
for several years, and after it was completed
the employer brought an action against the
searcher claiming delivery of his original notes
on the ground that he, the pursuer, had paid
for them, and that they were his property.
Alternatively, and on the assumption that the
notes were the property of the defender, he
claimed interdict against the defender com-
municating the notes to any person without
the pursuer's consent. He averred that the
employment was confidential ; and it was
proved that on one occasion the defender had
used the notes to facilitate researches which
he was making for another client : — Held,
first, that, in the absence of express stipulation
to the contrary, the notes remained the pro-
perty of the searcher; and secondly, that
there was no evidence of any such actual
or apprehended invasion of a legal right as
to justify the Court in granting an interdict.
Horsfall, Ex parte (6 L. J. (cs.) K.B. 48;
7 B. & C. 528). distinguished. Crawford
(Earl) V. Paton. [1911] S. C. 1017— Ct. of
Sess.
1197
PRINCIPAL AND AGENT.
1198
3. Liability of Agent to Account.
See also Vol. XI. 978, 18.37.
Purchase by Agent at Undervalue of
Charge on Principal's Estate.] — See Patton v.
Hamilton, a)itr, col. 1196.
Purchase of Land in Name of Former Clerk
to Parish Council — Declaration that Land
Held for Parish Council.] — The plaintiff
parish council resolved in June, 1911, to
purchase twelve acres of land, partly for allot-
ments and partly for a recreation ground.
According to the plaintiffs, the defendant
suggested that a private person could probably
effect the purchase on better terms than the
council, and that thereupon it was arranged
that the defendant should attend the sale and
purchase the land at a price not exceeding
800Z. The defendant purchased the land for
400i., and it was conveyed to him, but as he
refused to convey it to the council, the plain-
tiffs now claimed a declaration that he held
the land as trustee for them : — Held, that
the plaintiffs were entitled to the declaration
asked for, but that the plaintiffs must under-
take with all convenient speed to get the
necessary consent to pay the defendant the
purchase price and expenses. Long field
Parish Council v. Robson, 29 T. L. R. 357—
Warrington, J.
Insurance Brokerage — " Net " Premiums —
Discount and Special Rebate Received by
Insurance Broker — Right of Principal to
Recover Amount.] — The plaintiffs employed
the defendants, who were insurance brokers,
to effect marine insurances, and the defen-
dants rendered to the plaintiffs an account
which stated that the premiums payable by
the plaintiffs were at a "net " rate, whereas
the amount paid by the defendants to the
underwriters was the gross amount of pre-
mium less 5 per cent, commission, and less
a further discount of 10 per cent. In the
case of two large insurances the defendants
got a special rebate of 25 per cent, from the
insurance companies. The plaintiffs brought
an action against the defendants to recover
the 5 per cent, commission, the 10 per cent,
brokerage, and the 25 per cent, special rebate.
According to the plaintiffs, when " net " pre-
miums were quoted they were only subject
to a deduction of 5 per cent. : — Held, that,
though in an ordinary case the defendants
would be entitled to retain the commission
of 5 per cent., yet that if a broker repre-
sented to his principal that the premiums
charged to the principal were subject only
to a deduction of 5 per cent, commission, the
broker was not entitled to retain an addi-
tional 10 per cent, as discount, and that the
same rule applied to the 25 per cent, special
rebate, and that as an agent could not retain
a commission which he had obtained by act-
ing dishonestly towards his principal the
plaintiffs were entitled to recover the full
amount claimed. Green v. Tuqhan,
30 T. L. R. f)4-Pickford, J.
London and Country Stockbroker — Order for
Purchase of Shares— Contract Made by Town
Broker for Sale to Country Broker at Price
Including Commission — Effect of Non-
disclosure to Client.] — Where a client has em-
ployed a country broker to purchase shares
through a London broker, it is a question of
fact in each case whether the London broker
has acted as a broker and bought for his
client — in which case he has complied with
his mandate — though in accordance with the
practice of the Stock Exchange he sends for-
ward a " net price," or whether he has acted
as a principal selling to his client not at the
jobber's price plus a regular or reasonable
remuneration for himself, but at an arbitrary
price obtained by adding anything he liked
to the jobber's price. Blaker v. Hawes,
109 L. T. 320; 29 T. L. R. 609— Scratton, J.
4. Right of Agent to Close Account.
Broker — Death of Client — Taking over of
Client's Shares by Broker — Proper Valuation
— Liability to Account.] — Where there is a
running account between a broker and his
client, and the client dies, the account may
be closed by the broker at once, whether he
is a member of the Stock Exchange or not ;
if he be unable to sell the shares, he may
take them over himself at a proper valuation,
provided that he does not thereby prejudice
his client's estate. Finlay, In re; Wilson it
Co. V. Finlay, 82 L. J. Ch. 295: [1913] 1 Ch.
565 ; 108 L. T. 699 ; 57 S. J. 444 ; 29 T. L. R.
436— C.A.
Per Buckley, L.J. : The legal personal
representative of the client could, however,
bring an action to set aside the transaction
and to redeem. lb.
5. Right of Agent to Indemnity against
Loss.
See also Vol. XL 100(3, 1838.
Agent Defending Action — Solicitor and
Client Costs.] — Where an agent duly carries
out the orders of his principal, and is in con-
sequence made the defendant in an action,
and the action is dismissed for want of
prosecution, the indemnity implied by law
includes the costs of properly defending the
action taxed as between solicitor and client.
Williams v. Lister ,{■ Co., 109 L. T. 699—
C.A.
Employee of Company — Costs Incurred in
Defending Libel Action.] — A mining engineer
was employed by a company, on certain terms
as to remuneration and travelling and other
expenses, to visit and report on property of
the company abroad. While carrying out this
conmiission he discovered matters relating to
the conduct of a director which he had not
been employed to investigate, but wliich,
having discovered them, it was his duty to
report to the company. He made such a
report and incurred large costs in defending
successfully a libel action brought against him
in conse(iuence by the director. One of the
company's articles of association provided that
its officers and servants should be indemnified
by it against loss, and that all costs, losses,
and expt^nses which any officer or servant
1199
PEINCIPAL AND AGENT.
1200
might incur or become liable to by reason of
acts or deeds done by him as such officer or
servant be paid out of the company's funds.
Sargant, J., held, distinguishing The James
Seddon (35 L. J. Adm. 117 ; L. K. 1 A. & E. 62),
that the engineer as a servant of the company
was not entitled either at common law or
under the articles of association to be indem-
nified by the company in respect of the costs :
— Held, by the Court of Appeal on the facts,
that the engineer was an agent of the com-
pany and not a mere servant. On well-settled
principles he was entitled as such agent to be
indemnified against all liability reasonably
occasioned by his employment. Famatina
Development Corporation, In re, 84 L. J.
Ch. 48; [1914] 2 Ch. 271; 30 T. L. R. 696—
C.A.
Stock Exchange — Country Broker and
Client — Order for Purchase of Shares — Con-
tract Effected by Country Broker through
London Broker — Form of Bought Note Sent
by London Broker to Country Broker — "Net"
Price J — Tlie ])lnintiff, a country stockbroker,
was em})l()ye(l by the defendant to make pur-
chases for him of stocks and shares, subject
to the rules, regulations, and customs of the
Stock Exchange through which the transaction
took place. The plaintiff bought certain shares
through members of the London and Glasgow
Stock Exchanges, who in each case, having
bought from jobbers on their respective
Exchanges in the orthodox fashion, sent
bought notes to the plaintiff setting out the
sum due to them, which sum included not only
the price at which they themselves had bought
from the jobbers, but also a sum to cover their
commission, and was so understood by the
plaintiff. The amount of such commission,
however, was not disclosed to the plaintiff, but
it was in every case reasonable. The word
" net " was sometimes, although not in every
case, added to the price charged by the London
and Glasgow brokers. The method adopted
by the brokers was in accordance with the
practice of their respective Exchanges, and
also in accordance with the rules of the
Glasgow Stock Exchange. The bought notes
which the plaintiff received were not com-
municated to the defendant, but the plaintiff
sent him in each case a bought note in which
the price of the shares was set out at the
price charged by the London and Glasgow
brokers, and a further sum was added and
shewn as the plaintiff's commission. The
plaintiff sued the defendant for indemnity in
respect of payments he had made in carrying
out these transactions. The defence was that
the plaintiff had not acted in accordance with
his mandate, inasmuch as the London and
Glasgow brokers had acted as principals and
not as brokers, and that the plaintiff was
therefore not entitled to indemnity ; — Held,
that on the true view of the facts the London
and Glasgow brokers had acted as brokers and
not as principals, and the plaintiff had acted
in accordance with his mandate ; and therefore
the plaintiff was entitled to recover. Johnson
V. Kearley (77 L. J. K.B. 904 : [1908] 2 K.B.
614) distinguished. Aston v. Kelsey, 82 L. J.
K.B. 817; [1913] 3 K.B. 314; 108 L. T. 750;
18 Com. Ca8. 257 ; 29 T. L. R. 530— C.A.
Broker and Principal — Payment of Differ-
ences — Gaming and Wagering Contract.] —
Where a person speculates on the Stock
Exchange, but the stockbroker through whom
he speculates enters into bona fide contracts
with a jobber in respect of which he is liable
to the jobber, the stockbroker can sue the client
for an indemnity, notwithstanding that the
client merely intended to deal in differences,
and this fact was known to the stockbroker.
Franklin v. Dawson, 29 T. L. R. 479—
Bailhache, J.
Stockbroker and Client — General Lien.] —
The principle that every agent who is required
to undertake liabilities or make payments for
his principal is entitled to be indemnified for
moneys expended or loss incurred on his
principal's behalf out of property belonging
to his principal which has come into his hands
in his character of agent, and to retain such
property until his claim is satisfied, is
applicable to transactions carried out by a
stockbroker on the Edinburgh Stock Exchange.
Hope V. Glendinning, 80 L. J. P.C. 193;
[1911] A.C. 419— H.L. (Sc.)
D. RIGHTS AND LIABILITIES OF
PRINCIPAL AND THIRD PARTIES.
1. Rights of Principal against Third Party.
a. Fraud of Agent.
Scr also Vol. XI. 1021, 1843.
Limitation of Authority — Excess of Limit by
Agent — Liability of Principal — Authority to
Raise Specified Sum on Shares — Blank Trans-
fer of Shares Entrusted to Agent — Smaller
Sum Raised by Agent — Right of Sender to
Retain Shares against Principal — Estoppel.]
— The plaintiffs, who were the registered
holders of shares in a limited company, gave
to an agent an authority to obtain for them
a loan of not less than 250L upon the shares,
and handed to him the documents of title to
the shares, including a blank transfer, signed
by them. The agent handed the documents
of title, including the blank transfer, to the
defendant as security for a loan of lOOL from
the defendant to himself, the defendant taking
them in good faith and without express notice
or knowledge of the limitation of the agent's
authority. The agent not having repaid the
sum borrowed by him, the defendant caused
the blank transfer to be filled up with his own
name, and by means of that and the other
documents of title obtained the certificate for
the shares. The plaintiffs brought an action
against the defendant for the return of the
shares : — Held, that the mere fact that the
transfer was in blank and not filled up with
the name of any transferee did not put the
defendant, on taking it, upon his enquiry as
to the extent of the agent's authority; that
as the plaintiffs had entrusted the agent, with
the intention that he should deal with them on
their behalf, with documents which apparently
represented the entire interest in the shares,
they were estopped from setting up the limita-
tion of the agent's authority as against the
defendant, who had no notice of the limitation ;
1201
PRINCIPAL AND AGENT.
1202
and that the plaintiffs were not entitled to
recover the shares from the defendant. Fry v.
Smellie, 81 L. J. K.B. 1003; [1912] 3 K.B.
282; 106 L. T. 404— C. A.
France v. Clark (53 L. J. Ch. 585 ; 26 Ch. D.
257) distinguished. Brockleshy v. Temperance
Permanent Building Society (64 L. J. Ch. 433;
[1895] A.C. 173) and Rimmer v. Webster
(71 L. J. Ch. 561: [1902] 2 Ch. 163) applied.
lb.
Mortgage by Agent of Principal's and
His Own Securities to a Greater Amount —
Sale of Principal's Securities to Realise
Greater Amount — Remedy of Principal against
Securities of Agent." — A principal authorised
his agent to mortgage certain securities belong-
ing to him to a certain limited amount. The
agent, however, mortgaged these securities,
together with certain other securities belonging
to himself, for a greater amount. The prin-
cipal's securities having been sold by the
mortgagee to repay himself the greater amount,
^Held, that, by a process analogous to mar-
shalling, the principal was now entitled to
have handed over to him so much of the
securities belonging to the agent as was
necessary to secure him the difference between
the amount for which he had authorised the
agent to mortgage his securities and the
greater amount for which those securities had
actually been sold. Surge, Woodall d; Co.,
In re; Skyrme, ex parte, 81 L. J. K.B. 721;
[1912] 1 K.B. 393 ; 106 L. T. 47 : 20 Manson, 11
— Phillimore, J.
Share Certificates — Transfers Indorsed on
Certificates — Transfers Signed in Blank by
Registered Shareholder — Certificates Left by
Purchaser in Possession of Broker — Know-
ledge of Purchaser as to State of Certificates
— Fraudulent Pledge of Certificates by Broker
— Purchaser Estopped from Claiming Shares, i
— The plaintiff purchased through stockbrokers,
and paid for, a number of ordinary shares in
the Canadian Pacific Railway. The certificates
delivered by the vendor to the brokers bore
on the back transfers signed in blank by the
vendor as the registered holder. The plaintiff
left the certificates in the possession of his
brokers, and on their advice consented to the
shares remaining registered in the name of
the vendor. The plaintiff knew that certifi-
catee, indorsed as these were, could be trans-
ferred to and registered in the name of another
person witliout any act on the part of the
plaintiff. The brokers subsequently, without
the knowledge or consent of the plaintiff,
deposited the certificates with the defendant
bank as security for advances made by the
bank to them, and the shares were registered,
at the request of the brokers, in the names of
the bank's nominees. The In-okers subse-
quently defaulted, owing a sum to the
defendant bank largely in excess of the value
of the shares. The plaintiff brought this
action against the defendant bank to recover
the shares so deposited by the brokers with
them : — Held, that (he plaintiff was estopped
from claiming the certificates from the defen-
dant bank, who had taken them in good faith
and for value. Fuller v. Clyn. Mill.^. Ciirric
,{■ Co., 83 L. J. K.B. 764: [1914] 2 K.B. 168;
110 L. T. 318: 19 Com. Cas. 186; 58 S. J.
235: 30 T. Ti. R. 162~Pickford, J,
Knowledge of Agent — Whether to be Im-
puted to Principal.] — The proprietrix of cer-
tain property handed the title deeds thereof
to her solicitor, a nephew, at whose death it
was discovered that he had utilised the title
deeds to obtain money for himself by means
of a forged bond [mortgage] over the property.
Previously the proprietrix had received a
demand for payment of income tax on
" interest," and, not knowing to what such
a demand could refer, she asked another
nephew, a brother of the solicitor, to make
enquiries, in the course of which he learnt
that his brother had obtained money for him-
self on the security of his aunt's title deeds.
He refrained from communicating this to his
aunt till after his brother's death, when she
heard of the bond for the first time and at
once repudiated her signature. In an action
by her against the bondholders for reduction
of the bond as a forgery and for delivery of the
title deefls, the defenders maintained that she
had adopted the forged deed as her own, or
at least was barred by her actings from plead-
ing that she had not adopted it : — Held, that
the knowledge of the nephew employed to
make enquiries, which he had refrained from
communicating, could not be imputed to the
pursuer so as to bar her from subsequently
repudiating the forgery. Dictum of Lord
Halsbury in Blackburn v. Vigors (57 L. J.
Q.B. 114; 12 App. Cas. 531) commented on
and explained. Muir's Executors v. Craig's
Trustees, [1913] S. C. 349— Ct. of Sess.
b. Payment to Agent when a Discharge.
See also Vol. XI. 1024. 1844.
Limitation of Agent's Authority to Receive
Payment in Cash from Customer — Ambiguous
Notice to Customer of Limitation of
Authority.] — Where limitations are placed on
the authority of an agent or traveller, the
extent of those limitations must be brought
home to the customer's mind if he is to
be bound by them. Internatioyial Sponge
Importers, Lim. v. Watt, 81 L. J. P.C. 12;
[1911] A.C. 279; 16 Com. Cas. 224; 55 S. J.
422 ; 27 T. L. R. 364— H.L. (Sc.)
The appellants employed a traveller for
the sale of their goods. The statements of
account intimated to customers that cheques
were to be crossed. In some cases a special
crossing with the names of the bank and of
the payees was requested. The traveller in
some cases received paj'ment in the form of
cheques payable to himself and in another
case in the form of notes and gold. He
fraudulently appropriated the money so paid.
In an action by the appellants for the money
so paid to the traveller by the respondents, —
Held, that the respondents were not liable to
pa\' the money the second time, as they had
not, when they made the original ])ayments,
been informed that neither cash nor any pay-
ment save in the prescribed form would be
accepted. lb.
1203
PRINCIPAL AND AGENT.
1204
2. Liability of Pkincipal to Third Party.
a. On Contracts.
See also Vol. XI. 1029. 1845.
Underwriting — No Notice of Determination
of Agent's Authority — Estoppel.] — An under-
writer employed A. as his agent to underwrite
for him by a written authority which expired
on December 31, 1909. Prior to this date the
underwriter had paid many losses on policies
effected through A., but neither at the end
of 1909 nor at any time had he ever given any
notice to those with whom he had done such
underwriting business that A.'s authority to
act for him had been determined, nor had he
given any notice of the fact at Lloyd's. In an
action by the plaintiffs in respect of certain
policies ostensibly underwritten by the defen-
dant, through the agencv of A., after Decem-
ber 31, 1909,— Held, that the defendant was
estopped from denying A."s authority to act
on his behalf. Willis, Faber <f Co. y. Joyce,
104 L. T. 576: 16 Com. Cas. 190; 11 Asp. M.C.
601; 55 S. J. 443: 27 T. L. R. 388-Scrutton,
J.
Authority of Agent — Limitation — Prohibi-
tion of Power to Borrow — Money Borrowed by
Agent from Third Party — Knowledge by Third
Party of Limitation of Authority — Money
Applied in Paying Existing Debts of Principal
— Right of Third Party to RecoYer from
Principal.' — The defendant company by their
articles of association had themselves authority
to borrow money, but by an agreement between
them and M., their managing director, the
latter had no authority to pledge their credit
or expose them to any pecuniary liability
except so far as he might from time to time
be authorised by them. The plaintiffs, on the
application of M., advanced to him a sum of
money with the intention that it should be a
loan to the defendant company. At the time
when they advanced the money the plaintiffs
knew that M. had no authority to pledge the
credit of the defendant company. M. applied
the money in paying existing legal debts of the
defendant company. The defendant company
had no knowledge of the transaction and did
not subsequently ratify it : — Held (Vaughan
Williams. L.J., dissenting), that the plaintiffs
were entitled to recover the money from the
defendant company as money had and received
by the latter to the use of the plaintiffs.
Observations of Collins, M.R., and Romer,
L.J.. in Bannatyne v. Maclver (75 L. J. K.B.
120: [1906] 1 K.B. 103) discussed. Rever.sion
Fund and Insurance Co. v. Maisoi^ Cosioay,
Lim., 82 L. J. K.B. 512; [1913] 1 K.B. 364;
108 L. T. 87; 20 Manson. 194: .57 S. J. 144
-C.A.
Existence of Agency — Hotel Manager —
Licence in Name of Manager — Purchase of
Spirits by Manager in his Own Name — Credit
Given by Seller to Manager — Subsequent Dis-
covery by Seller of Owner of Hotel — Liability
of Owner — Evidence of Agency.] — The defen-
dants, the owners of an hotel, appointed as
their manager a person who was the licensee
of the premises and whose name appeared as
such over the door. The manager ordered in
his own name a quantity of whisky from the
plaintiffs, who gave credit to the manager not
knowing that he was only manager or that the
defendants were the owners of the hotel, and
the whisky was delivered at the hotel : — Held,
that the plaintiffs, on subsequently discover-
ing that the defendants were the owners of
the hotel, were not entitled to recover the price
of the whisky from them, inasmuch as there
was no evidence that the manager was in fact
the agent of the defendants for the purpose of
ordering the whisky on their behalf. Kinahan
V. Parry, 80 L. J. K.B. 276; [1911] 1 K.B.
459; 103 L. T. 867— C.A.
Whether Agent Acting as Principal or Agent
—Set-off of Debt Due by Agent to Third
Party.] — A ordered coals from B, who trans-
mitted the order to a colliery company, who
delivered the coals to A, accompanied by
invoices and accounts addressed to A, which
bore that the coals were sold by the company.
In reply to enquiries from A, who wanted to
know why the company had supplied the coals,
B, who had on previous occasions sold coal to
A, assured him that he, B, was the seller. A,
satisfied with B's statement, did not ask any
explanation from the company, accepted the
coals, made no reply to letters from the com-
pany asking for payment, and ordered more
coals from B, which were also supplied by the
company, together with invoices and accounts
in similar terms. In an action by the com-
pany against A for the price of the coals,
the defender maintained that he had no con-
tract with the company, but had throughout
dealt with B as principal, and that his only
liability was to B, against whom he had a
contra account which he desired to set off
against the price of the coals : — Held, that A
was liable to the company for the whole price.
Cooke V. Eshelby (56" L. J. Q.B. 505;
12 App. Cas. 271) and Cornish v. Alington
(28 L. J. Ex. 262: 4 H. & N. 549) followed.
Wester Moffat Colliery Co. v. Jeffrey, [1911]
S. C. 346— Ct. of Sess.
b. Other Acts of Agent.
i. Generally.
See also Vol. XI. 1055, 1853.
Liability of Principal in Respect of Antece-
dently Acquired Knowledge of Agent.] — Every
act of an agent within the scope of his employ-
ment is the act of his principal ; and conse-
quently all knowledge acquired by the agent,
when acting within the scope of his authority,
is the knowledge of his principal ; but know-
ledge acquired by the agent antecedently to his
becoming agent to the principal ought not to
be imputed to the latter, and the recollection
or forgetfulness of the agent of matters known
to him previous to that relation ought not to
affect the liability of the principal, except in
cases where the principal purchases the pre-
viously obtained knowledge of the agent in
relation to a particular subject-matter, or
where, from his position and relationship to
the principal, the agent is the agent of his
principal " to know or to inquire." Dresser
1205
PRINCIPAL AND AGENT.
1206
V. Norwood (34 L. J. C.P. 48; 17 C. B. (n.s.)
466) distinguished. Taylor v. Yorkshire
Insurance Co., [1913] 2 Ir. E. 1— K.B. D.
ii. Fraud.
f See also Vol. XI. 1055, 1855.
Circnmstances in which it was held that the
defendants were liable for the fraud of their
agent on accounts furnished by him shewing a
balance due to the plaintiffs. Malone v.
Belfa.^t Banking Co., [1912] 2 Ir. R. 187—
C.A.
Solicitor — Managing Clerk Acting within
Scope of Authority.] — The appellant, who was
the owner of a mortgage and of freehold cot-
tages, consulted the managing clerk of the
respondent, a solicitor, as to her investments.
The managing clerk, having advised her to
call in the mortgage and sell the property,
induced her to execute two deeds, and then
misappropriated the proceeds of the mortgage
and the purchase money of the property : —
Held, that the respondent was liable for the
loss sustained bv the appellant. Lloyd v.
Grace. Smith £''Co., 81 L. J. K.B. 1140;
[1912] A.C. 716; 107 L. T. 531; 56 S. J. 723;
28 T. L. R. 547— H.L. (E.)
Barwick v. English Joint-Stock Bank
(36 L. J. Ex. 147 ; L. R. 2 Ex. 2-59) discussed
and explained. Dicta of Bowen, L/.J., in
British Mutual Banking Co. v. Charnwood
Forest Railway (.56 L. J. Q.B. 449; 18 Q.B. D.
714), and of Lord Davey in Rubeji v. Great
Fingall Consolidated , Lim. (75 L. J. K.B. 843 ;
[1906] A.C. 439), disapproved by Lord Mac-
naghten and Lord Shaw. Ih.
Decision of the Court of Appeal (80 L. J.
K.B. 959: [1911] 2 K.B. 489) reversed. Ih.
iii. Negligence.
See also Vol. XI. 1065, 1859.
Accident — Control of Carriage — Permission
of Owner.] — Where the owner of an equipage
— whether a carriage and horses or a motor —
is riding in it and is thus in actual possession
of it, he has the right to control the manner
in which it is to be driven, unless he has
contracted himself out of the right or has aban-
doned it. Samson v. .iitchison, 82 L. J.
P.C. 1; [1912] A.C. 844; 107 L. T. 106;
•28 T. L. R. 559— P.C.
When, however, the owner, being in actual
possession, simply hands over the reins or the
wheel, he does not thereby give up the f>osses-
sion of the equipage, or his right to control
its course, and is liable in damages for the
negligence of the driver. lb.
iv. In other Cases.
See also Vol. XI. 1068, 1860.
Sewage Disposal. 1 — The defendants em-
ployed a contractor to empty and remove the
contents of the cesspools in their district, but
made no provision for the disposal of the
contents of the cesspools when taken out by
the contractor. The contractor deposited
sewage upon the land of the plaintiffs without
their consent, and thereby caused a serious
nuisance : — Held, that the defendants were
liable for the act of the contractor, as they
had failed to take precautions for the proper
disposal of the sewage. Robinson v. Beacons-
field Urban Council, 80 L. J. Ch. 647; [1911]
2 Ch. 188; 105 L. T. 121; 75 J. P. 353;
9 L. G. R. 789; 27 T. L. R. 478— C.A.
Illegal Sale of Lunatic's Furniture by Re-
lieving Officer — Liability of Guardians for
Wrongful Act — Evidence of Ratification."' — In
carrying out their statutory duties towards
paupers the acts of guardians of a poor law
union are purely ministerial, whether per-
formed by themselves or through the medium
of their officers ; and they are not liable in
damages in an action at the suit of a pauper
who alleges that he has sustained an injury
through the wrongful act of their officers. But
if in such an action there be evidence that a
relieving officer, intending to act on behalf of
the guardians, has done an illegal act amount-
ing to an independent tort for the benefit of
the guardians by which the guardians have
benefited, a jury may find a verdict against
the guardians for damage so suffered on the
ground that the guardians have adopted and
ratified the act of their relieving officer. Barns
V. St. Mary, Islington, Guardians . 10 L. G. R.
113: 76 J. P. 11— Bucknill. J.
3. Effect of Factors Act.
See also Vol. XL 1069, 1862.
Pledge in Paris to Agent of Defendant in
London — Agent not Acting in Good Faith —
Title of Defendant.] — The plaintiffs, who were
dealers in precious stones and who carried on
business in Paris, handed certain valuable
pearls to one A in Paris, he having stated to
them that he knew of a special merchant who
wanted them, and would be likely to give a
good price. A signed a receipt in these
terms : " Entrusted by [the plaintiffs] the
following goods to be sold for cash, which
I promise to return on the first demand, and
not to give them to any one without their
written authority. ... In case of loss I will
repay the full value of the goods. The house
reserve to themselves the right of delivering
the goods." A pawned the goods at a Govern-
ment pawnbroking establishment, and subse-
quently pledged them with M., who was the
defendant's representative in Paris, who sent
them to the defendant in London. The plain-
tiffs brought an action to recover the pearls or
their value from the defendant, in the course
of which Bray, J., found as facts (a) that A
from the outset of the transaction intended to
misappropriate the pearls ; and (b) that M.
had not acted in good faith. Bray, J., held,
first, that whether the case depended on
English or French law the defendant obtained
no title to the pearls, as his agent M. had not
acted in good faith ; and secondly, that A had
obtained the pearls from the plaintiffs by
larceny or by a trick in English law. or rol in
French law, and therefore he did not obtain
possession of the pearls with the plaintiffs'
consent; and thirdly, that A was not a mer-
cantile agent within the meaning of the Factors
1207
PRINCIPAL AND AGENT.
1208
Acts : — Held, that as M. was either the agent
of the defendant, or a joint speculator with
him, and as M. had not acted in good faith,
the plaintiffs were entitled to recover. Mehta
V. Sutton, 109 L. T. 529; 58 S. J. 29;
30 T. L. R. 17— C.A.
" Mercantile agent" — Picture Dealer —
Sale.] — Where goods are bought from a person
who carries on a business in which there is in
the customary course authority to sell — for
example, the business of a picture dealer — the
buyer, provided he acts in good faith and with-
out notice of any limitation of the authority
of the person selling, obtains a good title to
the goods under section 2 of the Factors Act,
1889, notwithstanding that the goods were in
fact entrusted to the person selling on the
condition that no offer should be accepted until
the real owner was referred to or unless a
particular price was obtained. Turner v.
Sampson, 27 T. L. R. 200— Channell, J.
DeliYery Orders — Documents of Title — Bill
of Lading for Cargo — Delivery Orders Created
and Issued by Owners of Goods for Part of
Cargo — Transfer of a Document of Title —
Delivery Order not for Specific Goods.] — The
defendants, having sold to F. & Co. a quantity
of mowra seed, gave F. & Co. two delivery
orders for 2,640 bags of mowra seed, and
F. & Co. gave the defendants a cheque in
payment therefor. The 2,640 bags formed
part of a larger consignment of 6,400 bags of
mowra seed in respect of w'hich the defendants
held a bill of lading. F. & Co. having sold a
quantity of mowra seed to the plaintiffs in-
dorsed the two delivery orders and gave them
to the plaintiffs, who took them in good faith
and paid F. & Co. therefor. As the cheque
given by F. & Co. to the defendants was dis-
honoured, the defendants refused to deliver the
2.640 bags of mowra seed to the plaintiffs : —
Held, that the two delivery orders were valid
documents of title to the 2,640 bags of mowra
seed notwithstanding that they were not given
in respect of specific goods, and notwithstand-
ing that the 2,640 bags formed part of a larger
consignment in respect of which the defendants
held a bill of lading ; and that the two delivery
orders had been " transferred " to F. & Co. by
the defendants within the meaning of sec-
tion 10 of the Factors Act, 1889, and section 47
of the Sale of Goods Act, 1893, although they
had been created and issued by the defen-
dants, and F. & Co. having transferred the
delivery orders to the plaintiffs, who took them
in good faith and for valuable consideration,
the defendants' right of lien as unpaid vendors
was defeated. Ant. Jurgens Margaruiefab-
rieken v. Dreyfus ,i Co., 83 L. J. K.B. 1344;
ri914] 3 K.B. 40; 111 L. T. 248; 19 Com. Cas.
333— Pickford, J.
E. RIGHTS AND TJABTLTTTES OF
AGENTS AND THIRD PARTIES.
1. Action by Agent.
See also Vol. XL 1084, 1865.
Sale of Goods — C.i.f. Contract — Payment by
Acceptances to Seller's or Authorised Agent's
Draft — Payment of Foreign Seller by Agent —
Delivery by Agent of Shipping Documents and
Draft to Buyers — Refusal of Buyers to Accept
Agent's Draft — Right of Agent to Maintain
Action for Amount of Draft.] — K., who carried
on business at Riga, entered into a contract
through the agency of J. & Co. to sell certain
timber to the defendants c.i.f. London. Pay-
ment was to be " by approved acceptances to
seller's or authorised agent's draft." The
contract was signed by J. & Co. as agents
for K. In accordance with the practice of the
Riga timber trade K. sent the bill of lading
for the goods to J. & Co., and at the same
time drew upon J. & Co. for the price.
J. & Co. accepted the draft on May 24, 1911,
and paid it in due course on May 30, 1911.
On May 25, 1911, .1. & Co. sent the shipping
documents to the defendants, together with a
draft for the price of the goods drawn upon the
defendants, and asked them to accept and
return the draft. The defendants kept the
shipping documents and took delivery of the
goods, but refused to accept the draft, as the
goods were not in accordance with the con-
tract, and claimed to reject the goods. It was
admitted that the goods were not in accord-
ance with contract, and they were sold by
order of the Court for about one-third of their
invoice price. An action was thereupon
brought against the defendants by K. for the
price of the goods and by J. & Co. to recover
the amount of the draft which the defendants
had failed to accept : — Held, that as J. & Co.
were merely agents and not parties to the con-
tract of purchase they were not entitled, in the
absence of a contract personally with them by
the defendants that the draft would be
accepted, to maintain an action against the
defendants for the amount of the draft, and
that the fact that J. & Co. had themselves
paid K. did not make any difference, inasmuch
as that fact could not be relied upon by the
defendants as an answer to an action against
them by K. on the contract. Barton Thomp-
son d Co. V. Virjers (19 Com. Cas. 175) dis-
tinguished. Jordeson £ Co. v. London Hard-
wood Co., 110 L. T. 666; 19 Com. Cas. 161—
—Pickford, J.
2. Liability of Agent.
a. On Contracts.
See also Vol. XL 1087, 1866.
Contract made by Agent for Foreign Prin-
cipal— Presumption as to Liability of Agent
— Authority of Agent to Pledge Credit of
Foreign Principal.] — Where an agent in
England contracts on behalf of a foreign prin-
cipal, he is presumed to contract personally
unless a contrary intention plainly appears
from evidence contained in the document itself
or in the surrounding circumstances. If there
is no such evidence, the presumption prevails
that the agent has no authority to pledge the
credit of the foreign principal in such a way
as to establish privity between such principal
and the other party, and that he is personally
liable on the contract. Harper v. Keller,
Bryant <£■ Co., 84 L. J. K.B. 1696; 113 L. T.
175; 20 Com. Cas. 291; 31 T. L. R. 284--
Sankey, J.
1209 PRINCIPAL AND AGENT— PRINCIPAL AND SURETY.
1210
"Del credere" Agent — Liability for Per-
formance of Contract.] — Where a contract of
sale is entered into through an agent who
takes a del credere commission, and an ascer-
tained sum is due in respect of that contract
from the buyer to the seller, which sum the
buyer fails to pay, either through insolvency
or for some reason which makes it impossible
for the seller to recover the amount, the del
credere agent is bound to answer for that
default to the seller by reason of his del
credere commission ; but the del credere agent
is not personally responsible for the due per-
formance of the contract so as to entitle the
seller to call upon him to litigate any dis-
putes arising under the contract between the
seller and the buyer. Gabriel v. Churchill £
Sim, 84 L. J. K.B. 233; [1914] 3 K.B. 1272;
19 Com. Cas. 411; 111 L. T. 933; 58 S. J.
740; 30 T. L. R. 658— C. A.
Judgment against Company — Agreement by
Chairman — Personal Liability.] — The plain-
tiffs recovered judgment against a company,
and the chairman of the company signed a
document stating that in consideration of the
plaintiffs suspending proceedings against the
company he agreed " on behalf of " the com-
pany to pay 751. in three days, and the balance,
including costs, in three months : — Held, that
this agreement was made by the chairman as
agent for the company, and that he was not
personally liable upon it. Avery, Lirn. v.
Charlesworth , 30 T. L. R. 215— A. T.
Lawrence, J. Affirmed, 31 T. L. R. 52— C. A.
Order by Brokers for Ship's Stores — Lia-
bility for Price.] — A ship chandler received an
order from a firm of " steamship owners and
brokers " in these terms : " Please supply the
s.s. Silvia with the following stores." He
delivered the goods under the erroneous be-
lief that the firm were the owners of the
vessel, and sought to hold them liable for the
price : — Held, that the firm were not liable,
in respect that they were acting as agents for
the owners, and — since the latter could be
discovered by reference to the register of
shipping — as agents for a disclosed principal.
Armojir v. Duff ,(■ Co.. [1912] S. C. 120—
Ct. of Sess.
b. For Assumption of Authority.
See also Vol. XL 1104. 1869.
Damage for Breach of Warranty — Breach
without Resulting Loss.] — A tradesman
entered into a contract with the secretary of
a company, which purported to bind the com-
pany. The contract was for the execution of
certain work, and, after the work had been
executed, the tradesman, having ascertained,
as he averred, that the contract did not in
fact bind the company, brought an action
against the secretary for damages for breach
of his warranty of authority to make the con-
tract. In this action he averred that the
company had no assets : — Held, that as it
appeared from this averment that the pursuer
would have been in no better position had
the contract bound the company, he had
suffered no loss from, and therefore could
not recover damages for, the defender's breach
of warranty; and action dismissed. Irving v.
Bums, [1915] S. C. 260— Ct. of Sess.
PRINCIPAL AND
SURETY.
I. Nature of Contract, 1210.
II. Discharge of Surety, 1212.
III. Rights of Surety, 1215.
I. NATURE OF CONTRACT.
See also Vol. XL 1130, 1873.
Contract of Guarantee — Construction.] —
The respondent agreed with the appellants
that if they would advance to the Mills Com-
pany a lakh and a half of rupees he would
within two weeks procure a loan of eleven
lakhs as the first mortgage of the mills block
property and thereout repay the sum ad-
vanced : — Held, that this was a substantial
undertaking by the respondent to procure a
loan and thereout repay the advance. The
liability assumed was not contingent upon a
first mortgage being procured. Vissanji v.
Shapurji Burjorji Bharoocha, L. R. 39 Ind.
App. 152— P. C.
Guarantee of Payment for Goods up to
Certain Value — Extent of Obligation.] — A con-
tract of guarantee was in the following terms :
" I do hereby undertake to guarantee to you
the due payment for all such goods as you
may from time to time sell and deliver to M.
or his order up to the value of two hundred
pounds " : — Held, that this put upon the
guarantor a liability for 200/. only of the
amount which the debtor should owe the
creditor for goods so supplied, and not a
liability for the whole amount of such debt
subject to a limitation that he should not be
called upon to pay more than 2001. ; and,
accordingly, that the guarantor was entitled
to deduct from the amount of his liability the
proportion of the value of a security, held by
the creditor, which 2001. bore to the total
amount of the debt due. Harmer d Co. v.
Gibb, [1911] S. C. 1341— Ct. of Sess.
Bank Overdraft Guaranteed — Surety's Right
of Indemnity — Will — Bequest Forgiving Debts
— Gift not Extending to Moneys Paid under
Guarantee.] — A testator becjueathed to his
nephew 2,0001. and forgave him " all debts
owing to me from him up to the time of my
decease and all interest and arrears thereon,
and I bequeath to him the same and all docu-
ments which I shall hold by way of security
for the same." Apart from this bequest the
nephew received other interests under the will.
At the time of the testator's death the nephew
was indebted to his bank in a sum exceeding
4,000/., and the bank held a continuing and
1211
PEINCIPAL AND SURETY.
1212
subsisting guarantee from the testator guar-
anteeing all sums due by the nephew up to
and not exceeding 4,000/. After the death of
the testator the bank demanded payment of
the 4,000/. from his executors : — Held, that
the gift in the will of all debts owning from
the nephew to the testator up to the time of
the testator's deatli did not extend to any
moneys which the testator's estate might be
called upon to pay to the bank under the
guarantee, and that the executors were entitled
to retain the beneficial interest of the nephew
under the will to make good those sums
together with interest. The right of the tes-
tator as surety to come into equity for the
purpose of getting an indemnity from the
nephew against the liability to the bank,
before anything had been paid under the
guarantee, was not a debt. Mitchell, In re;
Freelove v. Mitchell, 82 L. J. Ch. 121: [1913]
1 Ch. 201; 108 L. T. 34; 57 S. J. 213—
Parker, J.
Signature Obtained by Means of a
Fraudulent Misrepresentation — Advances made
by Bankers on Faith of Guarantee — Loss Sus-
tained by Bankers thereby — Liability — Negli-
gence— Plea of Non est Factum — Proximate
Cause of Loss."; — The defendant signed a docu-
ment purporting to be a continuing guarantee
up to a certain amount by him to cover the pay-
ment by R. of all moneys due from him to the
plaintiffs on the general balance of his account
with them. The signature of the defendant had
been obtained by the fraudulent misrepresen-
tation of R. that it was merely an insurance
paper of a kind the defendant had signed
before. The defendant did not read the docu-
ment, neither did he know the nature of it.
Subsequently R. forged the signature of an
attesting witness, and handed the document
thus completed to the plaintiffs. In an action
brought by the plaintiffs against the defendant
as guarantor of R.'s current banking account,
the jury found (inter alia) that the defendant
was negligent in signing the document : —
Held, that the fact that the jury had found the
defendant was negligent did not raise such
an estoppel as would prevent him from setting
up the defence non est factum, and that the
proximate cause of the loss sustained by the
plaintiffs was not the negligence of the defen-
dant, but was the fraudulent act of R.
Carlisle and Cumberland Banking Co. v.
Bragg, 80 L. J. K.B. 472 ; [1911] 1 K.B. 489 ;
104 L. T. 121— C. A.
Guarantee of Loan to Infant — Liability of
Guarantor.] — The plaintiff sued the defen-
dants, father and son, on a promissory note
given in respect of a loan to the son, who was
under age when the money was advanced to
him. The father joined in the promissory note
in order to facilitate the transaction, under-
standing that the debt would be paid when
the son came of age. It appeared that in all
probability the plaintiff knew that the son was
under age : — Held, that the true meaning of
the transaction was. that the father acted as
principal borrower, and therefore, although by
the Infants' Relief Act the son was not liable,
the father was liable as principal. Wauthier
V. Wilson, 28 T. L. R. 239— C.A.
Representations as to Credit of Another —
Necessity for Writing.] — A tradesman who
had executed work under a contract with a
company which proved to have no assets, sued
the secretary of the company for damages for
misrepresentations made by him whereby the
pursuer was induced to ent«r into the contract.
The misrepresentations alleged were— first,
that the pursuer's money would be all right :
secondly, that the company had plenty of
money; thirdly, that 3,000/. of the capital of
the company had been subscribed ; and
fourthly, that the directors would provide addi-
tional security : — Held, that the first three
of these misrepresentations fell within the
category of representations contained in sec-
tion 6 of the Mercantile Law Amendment Act,
Scotland, 1856, which provides (inter alia)
that " all representations and assurances as
to the . . . credit, ability, trade, or dealings
of any person, made or granted to the effect
or for the purpose of enabling such person to
obtain credit, money, goods . . . shall be in
writing," subscribed by the guarantor or his
agent ; and that as the misrepresentations were
not in writing they could not be founded on :
that the fourth misrepresentation did not fall
within that category, but did not afford a
ground of action against the defender, as it
was not averred that he knew it to be false.
Irving v. Burns, [1915] S. C. 260— Ct. of Sess.
Promise to Answer for Debt of Another—
Necessity for Writing — Interest in Considera-
tion for Promise — Debt of Trading Company
— Guarantee by Debenture-holder.] — The
holder of a debenture issued by a trading
company creating a charge upon all its pro-
pert}', with the object of protecting his security
by helping the company to continue carrying
on its business, orally promised a manu-
facturer, in consideration of his supplying the
company with goods, to pay the debt of the
company in respect of such goods if the com-
pany made default : — Held, that the promise,
not being in writing, could not be enforced by
action ; for it was a simple promise to answer
for the debt of another within section 4 of the
Statute of Frauds, and was not taken out of
the statute by reason of the promisor having
an interest in the consideration for the promise.
Harburg Indiarubber Comb Co. v. Martin
(71 L. J. K.B. 529; [1902] 1 K.B. 778) con-
sidered. Davys v. Buswell, 82 L. J. K.B.
499; [1913] 2 K.B. 47; 108 L. T. 244— C.A.
Indemnity — Covenant to Assign " Spes suc-
cessionis " — Right of Set-off by the Person
Giving the Indemnity against the Covenantor.]
— If C gives an indemnity to A. and B cove-
nants to assign his spes successionis to the
benefit of that indemnity to D. when the
spes successionis is realised, B immediately
becomes a trustee for D, and C cannot claim
to set off a debt due to him from B before
satisfving the demands of D. Poulter. In re;
Poulter V. Poulter, 56 S. J. 291— Neville, J.
II. DISCHARGE OF SURETY.
See also Vol. XL 1206. 1876.
Fidelity Guarantee — Non-disclosure of
Material Fact — Absence of Fraud.] — The plain-
1213
PRINCIPAL AND SURETY.
1214
tiffs having in their employment a clerk whose
duties involved the collecting of money, ob-
tained from the defendant a suretyship bond
for securing the faithful discharge of his duties
bv the clerk. The clerk, to the knowledge of
the plaintiffs, had previously been gwilt-Y of
dishonesty in their service. The plaintiffs,
without any fraud on their part, omitted to
disclose to the defendant the fact of the
clerk's previous dishonesty, and the defendant
had no knowledge of it. In an action to
enforce the bond— Held, that the effect of
this non-disclosure was to vitiate the contract
and to release the surety. London General
Omnibus Co. v. Holloway, 81 L. J. K.B. 603;
[1912] 2 K.B. 72: 106 L. T. 502— CA.
Bank— Bank's Duty to Surety— Disclosure
of Principal's Indebtedness."— H., whose bank
account was overdrawn to the extent of about
300/ and who was also indebted to the bank
to the amount of about 1,100/. in respect of
certain accommodation bills, requested G., an
acquaintance who had no knowledge of his
financial position and in particular of his
indebtedness to the bank, to guarantee his
account to the extent of 800/. The latter
expressed to the bank agent his willingness to
undertake a guarantee to that amount, and
was informed bv the agent that a guarantee
of 300/. might not assist the principal debtor,
as that sum would be taken up by the bank.
The agent, however, did not make any dis-
closure of the principal's further indebtedness
of 1100/. under the bills, and G., believing
an overdraft of 300/. to be the sole debt
granted a guarantee for 500/. The principal
having failed to discharge his debt to the bank,
G. resisted an action for payment under the
guarantee, on the ground that he had been
persuaded to undertake it under essential error
induced by the failure of the bank agent to
discharge his duty of disclosing the existence
of the principal's indebtedness under the bills :
—Held, that there was no such duty of dis-
closure, and decree for payment granted.
Royal Bank of Scotland v. Greenslnelds .
[1914] S. C. 2.59— Ct. of Sess.
Observations, per the Lord President and
Lord Mackenzie on the circumstances in which
a bank agent might have a duty to disclose to
an intending guarantor the state of the prin-
cipal's indebtedness to the bank. lb.
Creditor's Suspicion that Debtor Guilty of
Forgery— Obligation to Inform Surety. ^-In
security for advances to be made by a bank
to a customer, the customer's father-in-law
in 1899 guaranteed payment of the premiums
on certain policies of insurance assigned to
the bank, and payment of interest on an
account for advances to the customer. In
December, 1906, circumstances came to the
knowledge of the manager of the bank which
afforded ground for the strongest suspicion,
short of actual proof, that the customer had
forged a bill for 3.000/. That information
was not communicated to the surety, and the
bank continued to deal with the customer
(though without making any further advances
to him) until November, 1907. when his estates
were sequestrated. He was shortly afterwards
convicted on his own confession of several acts
of fortJery, but it was never ascertained
whethe'r or not he had forged the bill for
3,000/. The liability of the surety under the
f^uarantee was no greater in November, 1907,
than it had been in December, 1906. The
surety having repudiated liability under the
guarantee, on the ground that the bank should
have communicated their suspicions to him in
December, 1906,— He/i, that, in the circum-
stances, there was no duty on the bank to
communicate their suspicions, and that the
surety was not freed from his liability. Bank
of Scotland v. Morrison, [1911] S. C. 593—
Ct. of Sess.
Guarantee of Bank Overdraft to Agent of
Guarantor — Alleged Misappropriation of
Money by Agent— Suspicions of Bank— Non-
communication to Guarantor — Release of
Guarantor.] — The defendant guaranteed the
payment of all sums due on any account from
C. to a bank up to 5,000/. C. was at that time
the agent of the defendant's estate and the
guarantee was given in order to raise money
to be expended for the benefit of the estate.
C, however, without the knowledge of the
defendant, opened another account with the
bank by means of the guarantee, the money
so advanced by the bank on the security of
the guarantee being used by C. for other pur-
poses than those of the defendant's estates.
The defendant alleged that the bank knew or
ouo-ht to have known that C. was misappro-
prfating the money, and that as they did not
communicate their suspicions to him he was
discharged from his guarantee -.—Held, that
the defendant had not proved that the bank
had suspicions that C. was defrauding him,
and that therefore he was not discharged from
his guarantee. Held, further, that even if the
bank were suspicious that C. was defrauding
the defendant they were under no duty to
communicate their suspicions to the defendant.
National Provincial Bank of England v.
Glanusk {Baron), 82 L. J. K.B. 1033: [1913]
3 K.B. 335: 109 L. T. 103; 29 T. L. E. 59^-
Horridge, .T. r r^ii-i o r.
Bank of Scotland v. Morrison ([1911 J h. L.
.593) followed. lb.
Recall of Guarantee by One Surety— Giving
Time to Debtor.]— A letter of guarantee
granted in favour of a bank in security of
advances made by it to a limited company,
empowered the bank to give time to the debtor
without affecting the liability of the sureties,
and provided that the guarantee should con-
tinue in force until recalled. Semble. that the
recall of the guarantee by a surety, while pre-
venting further advances to the debtor on the
credit of the revoking surety, would not in
everv case debar the bank from giving time
to tlie debtor after the date of the recall.
Hamilton's Executor v. Bank of Scotland,
[1913] S. C. 743— Ct. of Sess.
Co-defendants— Judgment— Time Given to
One Judgment Debtor. 1— The doctrine that if
a creditor agrees to give time to the principal
debtor without the surety's consent the surety
is discharged does not apply after judgment
has been obtained against them both jointly
as co-defendants. After judgment both defen-
1215
PEINCIPAL AND SUEETY— PROXY.
1216
dants are in an equal position so far as the
judgment creditor is concerned, and he can
issue a bankruptcy notice against the surety,
in spite of such an agreement, if the judgment
is unsatisfied. Jenkins v. Robertson (23 L. J.
Ch. 816; 2 Drew. 351) followed. E. W. A.,
In re (70 L. J. K.B. 810; [1901] 2 K.B. 642),
distinguished. Debtor (No. 14 of 1913), In re,
82 L. J. K.B. 907 ; [1913] 3 K.B. 11 ; 109 L. T.
323; 20 Manson, 119; 57 S. J. 579— D.
III. RIGHTS OF SURETY.
See also Vol. XI. 1280, 1881.
Co-sureties — Right of Contribution — Debt
Payable by Instalments — Payment of Instal-
ment by One Co-surety.] — A surety who has
paid more than his share of the common
liability is entitled to compel contribution from
his co-sureties, but the right of contribution
does not arise until the surety has paid more
than his proportion or share of the common
liability — that is to say, more than he can
ever be called upon to pay — and he cannot,
therefore, sue his co-sureties for a rateable pro-
portion of what he has paid the moment he has
paid any part of the debt. Lawson v. Wright
(1 Cox, 275) and Snowdon, In re; Snowdon,
ex parte (50 L. J. Ch. 540; 17 Ch. D. 44;
29 W. R. 654), discussed. Stirling v. Burdett,
81 L. J. Ch. 49; [1911] 2 Ch. 418; 105 L. T.
573— Warrington, J.
PRINTS AND
ENGRAVINGS.
See COPYRIGHT.
PRIVILEGE.
In Libel and Slander.] — See Defam.^tk
PRIVILEGED
COMMUNICATIONS.
See DEFAMATION.
PRIVY COUNCIL.
Appeals from Colonies.] — See Colony.
PRIZE COURT.
See WAR.
PROBATE.
Of Wills.]— 6'ee Wills.
PROMISSORY NOTES.
See BELLS OF EXCHANGE.
PROMOTER.
See COMPANY.
PROOF OF DEBTS.
In Bankruptcy.] — See Bankbcptcy.
In Administration.] — See E.\ecdtoe and
Administrator.
In Winding-up.] — See Company.
PROSPECTUS.
See COMPANY.
PROVIDENT SOCIETY.
See FRIENDLY SOCIETY; INDUSTRIAL
SOCIETY.
PROXY.
See COMPANY.
1217
PUBLIC AUTHOKITIES PEOTECTION.
121&
PUBLIC AUTHORITIES
PROTECTION.
I. Costs, 1217.
II. Limitation of Actions, 1217.
I. COSTS.
See also Vol. XI. 1890.
District Auditor — "Action" — "Public
duty or authority" — "Civil proceeding com-
menced by writ."] — R., as an auditor of the
Local Government Board, had made certain
surcharges in respect of rates collected byF. C.
The Metropolitan borough of B. having applied
to the King's Bench Division for a writ of
certiorari quashing the surcharges, that Court
on December 2, 1912, made the order asked
for, but on June 17, 1913, the Court of Appeal
set aside that order, made an order allowing
the surcharges, and ordered the costs of that
appeal and in the King's Bench Division to
be paid by the respondents on the present
appeal — the Metropolitan borough of B. and
F. C. to the present appellant R. The present
appeal asked for payment of solicitor and client
costs of R., other than those in the Court of
Appeal, on the ground that he was entitled to
solicitor and client costs under section 1 of
the Public Authorities Protection Act, 1893.
For the appellant it was argued that the pro-
ceedings were within the purview of section 1
of that Act. On appeal from an order of
Bailhache, J., dismissing an application by
the appellant R. to review and vary a Taxing
Master's certificate, — Held, that the proceed-
ings in the King's Bench Division were not
an action within section 1 of the Public
Authorities Protection Act, 1893. The appel-
lant had not obtained a judgment in the proper
sense of the term, and the proceedings,
although in a civil Court, were not an action,
and the appellant was not entitled to solicitor
and client costs as an incident of the proceed-
ings. Roberts v. Battersea Borough Council,
110 L. T. 566; 78 J. P. 265; 12 L. G. R. 898
— C.A.
County Council becoming Defenders in
Action of Right of Way.]— The provisions of
section 1 (h) of the Public Authorities Pro-
tection Act, 1893, for the taxation as between
solicitor and client of costs awarded to a public
authority, are not applicable to the case of a
district committee of a county council, who,
in order to vindicate a public right of way,
had made themselves defenders to, and had
successfully defended, an action of interdict
brought against a private individual.
M'Robert v. Reid, ["1914] S. C. 633— Ct. of
Sess.
II. LIMITATION OF ACTIONS.
See also Vol. XL 1894.
Action for Personal Injuries — Motor Car
Owned by Corporation — Returning to Garage
after Performing Business of Corporation —
Act Done in Execution of any Public Duty or
Authority.] — A motor car, the property of a
corporation, was used to convey their engineer
on his visits to the various pumping stations
for the purpose of his inspecting the same on
behalf of the corporation, and on the day in
question the engineer made his round of inspec-
tion as usual. It was the day in the week on
which a clerk from the treasury department
also went round for the purpose of paying
weekly wages. As the motor car was return-
ing, after the round was done, to the garage,
the plaintiff's wife was knocked down while
attempting to cross a high road and injured.
The writ in the action was not issued within
six months from the date of the accident. At
the trial the jury awarded the plaintiffs
damages : — Held, that judgment in accordance
with the verdict had rightly been entered for
the plaintiffs, as the act done was not in the
exercise of any public duty or authority within
the meaning of section 1 of the Public Authori-
ties Protection Act, 1893, and the section had
no application to a matter merely incidental
to the performance of a statutory duty by the
corporation. Gierke v. St. Helens Corporation,
85 L. J. K.B. 17 ; 113 L. T. 681 ; 79 .T. P. 529 :
13 L. G. R. 1150; 59 S. J. -509— C.A.
Claim against Municipal Corporation and
Borough Treasurer — Borrowing Powers — Over-
draft from Bank for General Purposes — Ultra
Vires.] — An overdraft olitained by the defen-
dant corporation from a bank for general
purposes in respect of borrowing powers
granted for specific purposes, held to be ultra
vires and illegal. Held also, that the applica-
tion of money due to the consolidated loans
fund in repayment of such overdraft was ultra
vires and illegal ; and that the borrowing of
money from the bank for the purpose of the
corporation's electricity accounts otherwise
than in the exercise of borrowing powers with
the sanction of the Local Government Board
was ultra vires and illegal. Semble, in such a
case the Public Authorities Protection Act,
1893, would apply in favour of the corporation
and the borough treasurer in respect of acts
completed more than six months before action.
Att.-Gen. v. West Ham Corporation, 80 L. J.
Ch. 105; [1910] 2 Ch. 560; 103 L. T. 394;
74 J. P. 406 ; 9 L. G. R. 433 : 26 T. L. R. 683
— Neville, J.
Municipal Corporation — Statutory Power to
Sell Coke — Negligence in Delivery — Action by
Purchaser against Corporation — " Act done in
pursuance, or execution, or intended execution
of any Act of Parliament, or of any public
duty or authority."] — The defendant corpora-
tion, being the gas authority for their district,
under a local Act which gave them power to
sell coke and other residual products of the
manufacture of gas, sold a ton of coke to the
plaintiff. A servant of the defendants, in the
act of delivering the coke at the plaintiff's
premises, negligently l>roke the plaintiff's shop
window. The plaintiff having commenced an
action in respect of this damage more than
six months after the act complained of, the
defendants claimed the benefit of the Public
Authorities Protection Act, 1893. s. 1 (a) :—
Held, that, as the defendants were not under
any statutory duty to sell the coke to the
39
1219 PUBLIC AUTHORITIES PEOTECTION— PUBLIC TRUSTEE. 1220
plaintiff, and their obligation to do so rested
solely on a voluntary contract on their part,
the act of delivering the coke by their servant
was not an " act done in pursuance, or execu-
tion, or intended execution of any Act of
Parliament, or of any public duty or
authority," within the meaning of section 1
of the Public Authorities Protection Act, 1893;
and that therefore that Act did not apply.
Myers v. Bradford Corporation, 84 L. J. K.B.
306; [1915] 1 K.B. 417; 112 L. T. 206;
79 J. P. 1.30: 13 L. G. R. 1 ; 59 S. J. 57;
31 T. L. R. 44— C. A. Affirmed, 85 L. J. K.B.
146: 60 S. J. 74: 32 T. L. R. 113— H.L. fE.)
Claim to Land.] — Whether the Public
Authorities Protection Act, 1893, applies to a
case where a claim to land is in question,
qucere. Cross v. Rix. 77 J. P. 84; 29 T. L. R.
85— D.
Master and Servant — Compensation — Limi-
tation.]— The limitation of six months imposed
upon the commencement of any action, pro-
secution, or other proceeding by the Public
Authorities Protection Act, 1893, s. 1, has
no application to proceedings for compensa-
tion under the Workmen's Compensation Act,
1906. Fry v. Cheltenham Corporation,
81 L. J. K.B. 41; 105 L. T. 495; 76 J. P. 89;
10 L. G. R. 1: 56 P. J. 33; 28 T. L. R. 16;
[1912] W.C. Rep. 103.
Superannuation Scheme — Dismissal of Ser-
vant— Claim for Recovery of Contributions
Paid — Public or Private Statute.] — The plain-
tiif, who was a servant of the borough council
of S., for some years paid contributions by
way of weekly deductions from his wages,
under a superannuation scheme established by
virtue of a private Act of Parliament. The
plaintiff was dismissed from his employment,
and more than six months after such dismissal
brought an action against the borough council
to recover the amount of the contributions paid
by him. The defendants set up the defence
that they were protected by section 1 of the
Public Authorities Protection Act, 1893 : —
Held, that the defendants were protected by
the Act, the words of section 1 including a
private as well as a public statute. Bennett
V. Stepney Corporation, 107 L. T. 383;
76 J. P. 473; 10 L. G. R. 954— D.
Non-repair of Sewer.] — The Public Authori-
ties Protection Act, 1895, affords no bar to an
action where the duty of the Commissioners
to repair the road is a continuing duty ; the
default of the borough council to repair the
sewer, and so render the performance of that
duty by the Commissioners possible, being a
continuing wrong. Hart v. Marylebone
Borough Council, 76 J. P. 257; 10 L. G. R.
502 — A. T. Lawrence, J.
Pollution of Stream — Sewer,] — The periodi-
cal inundation of sewage from a sewer out of
repair is a continuing cause of action, and the
right to damages is not limited by the Public
Authorities Protection Act, 189.3, s. 1, to
damages in respect of the floodings within six
months before action. Ait. -Gen. v. Lewex
Corporation, 81 L. J. Ch. 40; [1911] 2 Ch.
495 ; 105 L. T. 697 ; 76 J. P. 1 ; 10 L. G. R.
26; 55 S. J. 703; 27 T. L. R. 581— Swinfen
Eady, J.
Prerogative Writ of Mandamus.] — The six
months limitation of time enacted by the
Public Authorities Protection Act, 1893, does
not apply to the prerogative writ of mandamus.
Rex V. Hertford Union; Pollard, Ex parte.
Ill L. T. 716; 78 J. P. 405; 12 L. G. R. 863
— per Avory, J.
PUBLIC DOCUMENT.
See EVIDENCE.
PUBLIC HEALTH.
See LOCAL GOVERNMENT;
METROPOLIS.
PUBLIC HOUSE.
See INTOXICATING LIQUORS.
PUBLIC MEETING.
See WAY.
PUBLIC POLICY.
See CONTRACT.
PUBLIC TRUSTEE.
See TRUST AND TRUSTEE.
1221
PUBLIC WORSHIP— EAG FLOCK.
1222
PUBLIC WORSHIP.
See ECCLESIASTICAL LAW.
QUARTER SESSIONS.
See JUSTICE OF THE PEACE.
QUEBEC.
See COLONY.
QUEENSLAND.
See COLONY.
QUIET ENJOYMENT.
See LANDLORD AND TENANT.
RAG FLOCK.
"Rags."] — By section 1, sub-section 1 of
the Eag Flock Act, 1911, any person using for
certain purposes flock manufactured from rags
which do not conform to a prescribed standard
of cleanliness is liable to a penalty : — Held,
that the word " rags " is not limited to rags
which have been polluted through contact with
a human being or an animal so as not to con-
form to that standard, but refers to rags which
are polluted from any cause so as not to con-
form thereto. Cooper v. Swift, 83 L. J. K.B.
fi30; [1914] 1 K.B. 253; 110 L. T. 79;
78 J. P. 57; 12 L. G. R. 115; 23 Cox C.C.
759— D.
Standard of Cleanliness — Re-stuffing Mat-
tress—Unclean Flock — "Making" Bedding.]
— By section 1, sub-section 1 of the Rag Flock
Act, 1911, " It shall not be lawful for any
person to sell or have in his possession for sale
flock manufactured from rags or to use for the
purpose of making any article of upholstery,
cushions, or bedding flock manufactured from
rags or to have in his possession flock manu-
factured from rags, intended to be used for any
such purpose, unless the flock conforms to such
standard of cleanliness as may be prescribed by
regulations to be made by the Local Govern-
ment Board, and, if any person sells or uses or
has in his possession flock in contravention of
this Act, he shall be liable" to a penalty. And
by the Rag Flock Regulations, 1912, article 1,
flock is to be deemed to conform to the standard
of cleanliness for the purposes of sub-section 1
of section 1 of the Act when the amount of
soluble chlorine, in the form of chlorides,
removed by washing from a specified quantity
of flock does not exceed a certain stated pro-
portion. The appellant, a mattress maker,
had undertaken i:i his spare time, and at his
own house, to re-make a mattress, belonging
to his sister, which had been in use for a
considerable time, for which she was to pay
him a shilling. He opened the seams, and
removed the flock with the intention of put-
ting it back into the same covering, the object
of the re-stuffing being to secure a more even
distribution of the flock in order to add to the
comfort of the mattress. The flock was found
upon analysis to contain soluble chlorine in
the form of chlorides greatly in excess of the
maximum allowed by the regulation. Upon a
summons charging the appellant with having
in his possession rag flock intended to be used
for the purpose of making bedding, which
flock did not conform to the standard of
cleanliness prescribed by the regulations, the
magistrate convicted the appellant : — Held,
that the re-stuffing or re-making of the mat-
tress with the same flock was not a " making "
of bedding within the meaning of section 1,
sub-section 1, and that the appellant was
therefore improperly convicted. Gamble v.
Jordan, 82 L. J. K.B. 743; [1913] 3 K.B.
149 ; 108 L. T. 1022 ; 77 J. P. 269 ; 11 L. G. R.
989; 23 Cox C.C. 451; 29 T. L. R. 539— D.
Stuffing New Cover with Old Flock.]— The
Rag Flock Act, 1911, s. 1, sub-s. 1, prohibits
the use for the purpose of making bedding of
rag flock unless such flock conforms to the
standard of cleanliness prescribed by the Local
Government Board. The respondent was re-
making two mattresses for a customer by
removing the flock from the covers and re-
placing it in new covers. The flock did not
conform to the requisite standard of cleanli-
ness : — Held, that removing flock from an old
cover and replacing it in a new cover consti-
tuted a " making of an article of bedding "
within the meaning of section 1, sub-section 1
of the Rag Flock Act, 1911. Gamble v.
Jordan (82 L. J. K.B. 743; [1913] 3 K.B.
149) distinguished. Guildford Corporation v.
Brown, 84 L. J. K.B. 289; [1915] 1 K.B.
256 ; 112 L. T. 415 ; 79 J. P. 143 ; 31 T. L. E.
92— D.
Sale of Second-hand Mattresses Containing
Rag Flock.]— The Rag Flock Act, 1911, does
not apply to the sale of a second-hand mattress
or pillows containing rag flock by a person
who does not manufacture them, (>ven although
the rag flock contained therein does not con-
form to the standard of cleanliness required
by the regulations made by the Local Govern-
ment Board. Cooper v. Cook's Depositories,
84 L. J. K.B. 382; [1915] 1 K.B. 344;
112 L. T. 431; 79 J. P. 159; 13 L. G. R.
368: 31 T. L. E. 82— D.
1223
KAILWAY.
1224
RAILWAY.
A. Capital Stock, 1223.
B. Powers and Duties in Constructing and
Working, 1223.
C. Laying Water Mains under Railway
Company's Land, 1225.
D. Light Railway, 1225.
E. Management of Business.
1. Running Powers, 1226.
2. Working Agreements, 1227.
3. Daynage by Fire from Locomotive, 1228.
4. Obligation to Provide Look-out Men on
Line, 1228.
F. Carriage of Passengers, 1229.
G. Carriage of Goods, 1229.
H. Railway Commission.
1. Reasonable Facilities for Traffic, 1233.
2. Rates and Charges, 1236.
3. Application under Cheap Trains Act,
1255.
4. Other Matters, 1255.
I. Sale of and Execution Against, 1255.
J. Mines and Minerals — See Mines and
Minerals.
K. Parliamentary Deposit — See Parliament.
L. Taking Lands Compulsorily — See Lands
Clauses Act.
M. Liability for Negligence — See Negli-
gence.
N. Rating — See Rates and Rating.
A. CAPITAL STOCK.
Dividends — Half-yearly or Yearly Calcula-
tion.]— A railway coiiipauy, in exercise of
powers conferred by a private Act of 1888,
created certain preferred and deferred ordinary
stocks, the terms of the Act providing that a
non-cumulative dividend of 3 per cent, should
be payable out of the available profits of each
half-year to the preferred stockholders and
that the balance of such profits should go to
the deferred stockholders. By the Railway
Companies (Accounts and Returns) Act, 1911,
every railway company was relieved of any
obligation to prepare or submit to their share-
holders or auditors accounts or balance sheets
oftener than once a year : — Held, thut the later
Act did not relieve the railway company of
the duty of calculating the dividends due to
the preferred and deferred stockholders on the
basis of the profits of each half-year. North
British Railway v. Wingate, [1913] S. C. 1092
— Ct. of Sees.
B. POWERS AND DUTIES IN CON-
STRUCTING AND WORKING.
See also Vol. XL 1393, 1906.
Right of Way — Power of Railway Company
to Grant.] — A railway company can dedicate
a way to the public over their property,
including tlieir railway line, provided it is not
incompatible with the use of their property for
the objects and obligations for which they
hold it. Arnold v. Morgan, 80 L. J. K.B.
955; [1911] 2 K.B. 814; 103 L. T. 763;
75 J. P. 105 ; 9 L. G. R. 917— D.
Closure of Highway — Re-dedication —
User Incompatible with Railway — Ultra
Yires.] — A railway company cannot grant to
the public a perpetual right of way over and
across their lines of rails or over land which
is required or intended and would naturally
come to be used for lines of rails. Great Cen-
tral Railway v. Balby-with-Hexthorpe Urban
Council; Att.-Gen. v. Great Central Railway,
81 L. J. Ch. 596; [1912] 2 Ch. 110; 106 L. T.
413; 76 J. P. 205; 10 L. G. R. 687; 56 S. J.
343; 28 T. L. R. 268— Joyce, J.
Semble, where a public highway has been
closed by Act of Parliament in order that a
railway company may lay lines of rails across
it, mere evidence of trespass and user by the
public will not be enough to establish re-
dedication of a right of way, even in cases
where such re-dedication would not be ultra
vires the company. 76.
Extinguishment of Public Right of Way-
Construction of Special Act — Compulsory
Powers — Land Taken by Agreement — Public
Rights not Extinguished.] — The special Act of
a railway company (which incorporated the
Lands Clauses Consolidation Acts) empowered
the company to enter upon, take, use, and
appropriate to the purposes of their under-
taking certain land which was the soil of a
public highway. Section 37 of the Act pro-
vided that " all rights of way over any of
the lands which shall under the compulsory
powers of this Act be purchased or acquired
shall be and the same are hereby extin-
guished." The soil of the highway was pur-
chased from its owners by agreement without
serving any notice to treat : — Held, that the
land so taken by agreement was not taken
under the compulsory powers of the Act, and
that the public rights of way over it were not
extinguished by the section. lb.
Bridge over Railway — Liability of Railway
Company to Maintain — Heavy Motor Traffic —
Standard of Maintenance.] — Where a railway
company has constructed a bridge to carry a
highway over a railway it is bound to maintain
that bridge in a condition of safety for the
passage of all traffic which may be reasonably
expected in the circumstances of the present
day to traverse the highway. If heavy motor
traffic may be expected on the highway the
railway company is bound to keep the bridge
strong enough to carry that traffic, and the
company is not relieved from that obligation
by the possession of a power under the Loco-
motives Acts and the Motor Car Acts to exclude
the traffic while the bridge is insufficient.
Att.-Gen. v. Great Northern Railway, 83 L. J.
Ch. 763; 12 L. G. R. 1196; 58 S. J. 595;
30 T. L. R. 557— Warrington, J.
Special Constables Appointed under Private
Act — Servants of Company — Arrest on Suspi-
cion of Felony — Liability of Company.] —
Special constables appointed under the provi-
sions of the Great Eastern Railway (General
Powers) Act, 1900, s. 50, on the nomination
of the railway company, and employed and
paid by the company, are the servants of the
1225
EAILWAY.
1226
company, but have under the section the '
peculiar protection which constables have in
the exercise of their duties. If, therefore,
they make an arrest on suspicion of felony
without reasonable grounds for suspecting that
the person arrested was guilty of felony, an
action for damages for false imprisonment will
lie against the company. Lambert v. Great
Eastern Railway. 79 L. J. K.B. 32; [1909]
2 K.B. 776; 101 L. T. 408; 73 J. P. 445;
22 Cox C.C. 165; 53 S. J. 732; 25 T. L. R. 734
— C.A.
The employment of police constables
(whether in plain clothes or not makes no
difference) is within the scope and duties of
railway companies. Goff v. Great Northern
Raihcay (30 L. J. Q.B. 148; 3 E. & E. 672)
and Edioards v. Midland Railway (50 L. J.
Q.B. 281; 6 Q.B. D. 287) approved. 76.
C. LAYING WATER MAINS UNDER
RAILWAY COMPANY'S LAND.
Acquisition of Easement, whether Neces-
sary.]— By section 61, sub-section 1 of the
Metropolitan Water Board (Various Powers)
Act, 1907, " it shall be lawful for the Board
to exercise at any place or places within their
limits of supply the like powers with respect
to the laj'ing of mains and pipes as are exer-
cisable by local authorities under the provisions
of the Public Health Act 1875 with respect to
the laying of mains and pipes within their
respective districts for the purpose of water
supply. ..." By section 96, sub-section 6,
"... the Board shall not without the consent
in writing of the railway companies under
their common seal purchase or acquire any of
the lands or property of the railway companies
but the Board may acquire and the railway
companies shall if required grant to the Board
an easement or right of constructing and main-
taining works on through in under over or
along such lands and property and the sum
to be paid for the acquisition of such easement
or right shall be settled in the manner provided
by the Lands Clauses Consolidation Act
1845 ..." -.—Held, that the Board were
entitled, under the powers conferred upon them
by the above enactments, to lay a main under
land belonging to the railway company with-
out purchasing or acquiring an easement in
respect of such land. Metropolitan Water
Board and London, Brighton, and South Coast
Railway, In re, 84 L. J. K.B. 1216; [1915]
2 K.B. 297; 113 L. T. 30; 79 J. P. 337;
13 L. G. R. 576-C.A.
Decision of Shearman, J. (83 L. J. K.B.
1491; [1914] 3 K.B. 787), affirmed. 76.
D. LIGHT RAILWAY.
Light Railway — Application for Order by
Local Authority — Several Lengths of Railway
Included in Application — Application Granted
by Commissioners with Refusal of Two
Lengths — Appeal by Local Authority to
Board of Trade— Power of Board of Trade to
Remit Case to Commissioners for Further Con-
sideration.]— Certain local authorities applied
to the Light Railway Commissioners under
the Light Railways Act, 1896, for an order
authorising the construction of a light railway.
There were twenty-three different lengths of
railway set out in the application. The Com-
missioners granted the application except as
regards two lengths of railway. The local
authorities appealed to the Board of Trade,
under section 7, sub-section 6 of the Act of
1896, against the decision of the Commissioners
as regards those two lengths of railway, and
the Board of Trade remitted the application
to the Commissioners for further consideration
so far as it related to those two lengths of
railway : — Held, (Phillimore, L.J., dissent-
ing), that, as the right of appeal to the Board
of Trade given by section 7, sub-section 6 of
the Light Railways Act, 1906, was limited to
cases where the Commissioners had refused
the application, and as in the present case the
application had been granted, although the
order did not extend to the whole of the lines
applied for, the local authorities had no right
of appeal to the Board of Trade, and the
Board of Trade had no power to remit the
application to the Commissioners for further
consideration. Rex v. Board of Trade; Rex v.
Light Railway Cotnmissiojiers ; Great Central
Raihcay and Midland and North-Eastern
Railways Joint Committee, Ex parte, 84 L. J.
K.B. 2043; [1915] 3 K.B. 536; 113 L. T. 711;
79 J. P. 531 ; 13 L. G. R. 832 ; 31 T. L. R. 493
—C.A.
Decision of the Divisional Court (84 L. J.
K.B. 325 ; [1915] 1 K.B. 162) reversed. 76.
E. MANAGEMENT OF BUSINESS.
1. Running Powers.
See also Vol. XL 1486, 1921.
Amalgamation.] — The appellant company
by a special Act passed in 1865 acquired
running powers over the respondent company's
line between M. and W. By a special Act
passed in 1897 the D. Co., whose line crossed
the respondent company's line between M. and
W., were empowered to form a junction with
the respondents' line and to enter into agree-
ments as to traffic, and by an agreement made
in 1898 they acquired limited running powers
over a small portion of the respondents' line
from the junction to a colliery. By a special
Act passed in 1906, which incorporated the
sections in the Railways Clauses Act, 1863,
relating to amalgamations, the undertaking of
the D. Co. was transferred to the appellant
company, who thereupon claimed a right to
bring all descriptions of traffic on to and over
the respondents' line between M. and W. at
the junction formed by the D. Co. : — Held,
that the appellant company had acquired no
greater rights under the amalgamation than
those previously possessed by the D. Co.
Great Central Railway v. Midland Railway,
83 L. J. Ch. 221; [1914] A.C. 1: 110 L. T.
481 ; 58 S. J. 65 ; 30 T. L. R. 33— H.L. (E.)
Judgment of the Court of Appeal (81 L. J.
Ch. 121; [1912] 1 Ch. 206) affirmed. 76.
Substitution of Electric for Steam Traction
— Protection of Company Exercising Running
Powers— Supply of Electric Power by Owning
Company — Basis of Payment.] — The M. Rail-
way obtained statutory powers to substitute
electric for steam power in the working of
1227
KAILWAY.
1228
their railway, and a clause was inserted in
the special Act of Parliament conferring such
powers for the protection of the G. W. Railway
(who under an agreement subsequently con-
firmed by statute exercised running powers
over part of the M. Railway), whereby it was
enacted that nothing therein contained should
prejudice the rights and powders of the G. W.
Co. to work any traffic over the railway of
the M. Co., and that the powers conferred by
the Act should not be exercised so as to make
the working of such traffic by the G. W. Co.
less easy or convenient than before: and,
further, that in the event of the M. Co.
requiring the G. W. Co. to substitute electric
for steam traction, either company should be
entitled to refer to arbitration such require-
ment and how the cost or any part thereof
should be borne. The M. Co. subsequently
required the G. W. Co. to substitute electric
traction for steam locomotives, and by a sub-
sequent arrangement with the G. W. Co.,
supplied electric traction to certain of the
G. W. Co.'s trains running over their railway.
A difference having arisen between the two
companies as to the principle upon which pay-
ment to the M. Co. for the supply of such
electric power should be based, the same was
referred to the Railway and Canal Commis-
sioners : — Held, that the basis of payment
should be the saving to the G. W. Co. — that
is to say, what it would have cost the
G. W. Co. to have performed the service by
steam locomotives at the particular time in
respect of which the payment was to be made ;
and not the actual cost of electrical haulage
along with an extra amount by way of
remuneration to the M. Co. Great Western
Railway and Metropolitan Railway, In re,
14 Ry. & Can. Traff. Cas. 176— Ry. Com.
2. Working Agreements.
See also Vol. XI. 1488, 1923.
Obligation by Lessees to " use their best
endeavours" to Develop Traffic of Lessors.] —
The defendant company undertook to " use
their best endeavours " to develop the through
and local traffic of the applicants : — Held, that
the defendants had thereby assumed a quasi-
fiduciary position to the applicants — a position
similar to that of a bailiff or agent — and that
they were bound to treat the applicants at
least as well as they treated themselves in
the matter of traffic. Sheffield District Rail-
way V. Great Central Railway, 14 Ry. &
Can. Traff. Cas. 299; 27 T. L. R. 451—
Ry. Com.
Contract to Develop Fully — Alleged Breach.]
— The applicants and the defendants, two
railway companies, made an agreement that
the defendant should work the applicants'
line and should do so in such a way as to
develop the traffic fully and in good faith.
The working was to be left entirely to the
defendants, and the receipts were to be divided
in certain proportions. The applicants alleged
that the defendants, though exercising an
honest management, had failed to perform
their obligations under the agreement, and
the applicants asked for an order requiring
them to do so : — Held, that the agreement
meant that the defendants were to work the
line as if it was part of their own system,
and were to have a wide discretion within the
limits of honest management, and that on the
evidence they had not exceeded their discretion
and had committed no breach of contract, and
therefore the application failed. Mold and
Denbigh Junction Railway v. London and
North -Western Railway, 32 T. L. R. 55—
Ry. Com.
3. Damage by Fire from Locomotive.
Damage to Agricultural Crops — Particulars
of Damage — Statement in Particulars of
Amount Claimed.] — Where damage is caused
to agricultural land or to agricultural crops by
fire arising from sparks or cinders emitted
from a locomotive used on a railway, the
particulars of damage which, under section 3
of the Railway Fires Act, 1905, must be sent
to the railway company within fourteen days
of the occurrence of the damage, as a condi-
tion precedent to the Act applying, must
contain a statement of the amount claimed in
respect of the damage. Martin v. Great
Eastern Railway, 81 L. J. K.B. 825; [1912]
2 K.B. 406; 106 L. T. 884— Channell, J.
4. Obligation to Provide Look-out Men
ON Line.
Accident to Platelayer — Obligation to " pro-
vide " Look-out during "repairing" of
Permanent Way — " Danger likely to arise."]
— The Prevention of Accidents Rules passed
by the Board of Trade on August 8, 1902, in
virtue of the Railway Employment (Pre-
vention of Accidents) Act, 1900, provide that
" With the object of protecting men working
singly or in gangs on or near lines of railway
in use for traffic for the purpose of relaying
or repairing the permanent way of such lines,
railway companies shall, after the coming into
operation of these rules, in all cases where
any danger is likely to arise, provide persons
or apparatus for the purpose of keeping a good
look-out or for giving warning against any
train or engine approaching such men so
working ; and the person employed for such
purpose shall be expressly instructed to act
for such purpose, and shall be provided with
all appliances necessary to give effect to such
look-out." The foreman of a gang of plat-
layers, who were engaged in substituting new
wooden wedges for old ones in the rail chairs,
was killed by a light engine, which came up
at an unexpected moment. At the point
where the accident took place there was
nothing to obstruct the view of the engine
driver or of the platelayers. No look-out man
had been posted. In an action of damages,
brought by the representatives of the foreman
against the company, the pursuers contended
that the defenders were liable, because, first,
they had failed to give the foreman notice of
the running of the light engine ; secondly, they
were in breach of the Board of Trade's regu-
lations in that they had not supplied the gang
with a special look-out man ; and thirdly, that
the accident was partly due to the fact that
the fireman employed on the engine was not
the usual fireman, but an unqualified person :
— Held, first, that the defenders were under
1229
RAILWAY.
1230
no obligation to give notice of the running of
the light engine; secondly, that while the
work on which the gang were engaged was
" repairing " the case was not one in which
any " danger " was " likely to arise " in the
sense of the regulations, and that accordingly
a look-out man was unnecessary; but thirdly,
that in any event the company were not bound
to supply a special look-out man, and had
complied with the regulations by delegating,
l)y their own regulations, to foremen the duty
of providing from their gangs look-out men
where they apprehended danger; and fourthly,
that, the substituted fireman having been
taken on to the engine by the driver without
the knowledge or consent of the locomotive
superintendent, the company were not liable
for the result of any fault he might have com-
mitted. Held accordingly, that, as the acci-
dent was due to the fault of the foreman him-
self or of fellow servants, the company were
not liable. Ferguson v. North British Rail-
way, [1915] S. C. 566— Ct. of Sess.
F. Cakriage of Passengers.
See also Vol. III. 7, 2173.
Action by Passenger for Personal Injuries —
Condition Relieving from Liability — Special
Contract.] — A carrier may stipulate that he
shall be free from liability to a passenger for
injury caused by negligence, but the burden
is on him to shew that the passenger assented
to the special terms imposed. Grand Trunk
Railway v. Robinson, 84 L. J. P.C. 194;
[1915] A.C. 740; 113 L. T. 350; 31 T. L. E.
395— P.C.
Where a passenger who is to be carried at
a reduced fare upon special conditions has
allowed terms to be made for him by an agent,
it is sufficient for the carrier to prove that the
passenger was content to accept the risk with-
out enquiring what the terms agreed upon by
his agent were. lb.
G. Carriage of Goods.
See also Vol. III. 74, 2183.
Delay in Delivery — Delay Due to Strike of
Railway Company's Servants.] — In calculating
what is a reasonable time within which goods
which have been entrusted to a railway com-
pany for carriage must be delivered, regard
must be had to all the circumstances existing
at the time, and those include the existence
of a strike on the part of the railway com-
pany's own servants, provided it is not estab-
lished that sucli strike has been brought about
by any default on the part of the railway com-
pany. Hick V. Raymond (62 L. J. Q.B. 98;
[1893] A.C. 22) applied. Sims v. Midland
Railway, 82 L. J. K.B. 67; [1913] 1 K.B.
103; 107 L. T. 700: 18 Com. Cas. 44;
29 T. L. R. 81— D.
Perishable Goods — Sale by Railway Company
— Agents of Necessity.] — Per Scruttnn, J.:
In the casi' of carriage by land as well as in
the case of sea carriage tlie power of the
carrier to sell the goods which have been
entrusted to him for carriage depends upon two
things — first, that a real necessity for the sale
exists, and, secondly, that it is practically
impossible to obtain the instructions of the
owner as to what should be done. lb.
Consignment of Goods at "owner's risk"
— Carriage to be by Passenger Train — Sub-
stitution of Goods Train — Delay — Liability of
Railway Company.] — The plaintiff delivered
to the defendants a consignment of cherries to
be carried by passenger train or other similar
service upon the terms that, in consideration
of being charged a lower rate than the defen-
dants' ordinary rate for the carriage of fruit,
he would relieve the defendants from all
liability for (inter alia) delay except upon
proof that such delay arose from wilful mis-
conduct on the part of the defendants' servants.
The cherries were duly despatched by
passenger train, but iu the course of the
journey they were transferred to a goods train,
with the result that they were delayed and
became deteriorated as a consequence. In an
action by the plaintiff against the defendants,
— Held, that the carriage of the fruit by
passenger train was of the essence of the con-
tract ; that after its transference from a
passenger train to a goods train it was no
longer being carried under the contract made
witli the plaintiff, and that consequently the
defendants were not entitled to the advantage
of the conditions of the consigimient note
relieving them from liability except upon proof
of wilful misconduct. Gunyon v. South-
Eastern and Chatham Railway, 84 L. J. K.B.
1212; [1915] 2 K.B. 370; 113 L. T. 282:
31 T. L. R. 344— D.
Equal Charges — Newspapers Carried by
Passenger Trains.] — In an action under sec-
tion 90 of the Railways Clauses Act, 1845,
complaining of inequality of charge in respect
of newspapers carried by the defendants by
passenger trains from Dublin, as compared
with newspapers carried from Belfast, the rate
was a flat rate, irrespective of distance, for
carriage over the whole of the defendants' rail-
way, and the train times and average length
that the respective papers were carried were
different : — Held, first, that though there was
no statutory charge prescribed, and though the
defendants were not bound to carry papers by
passenger trains, still, as they professed to do
BO, section 90 applied to preferential treatment
in respect of such papers; secondly, any cause
of action under section 90 was confined to the
portion of the line between Dublin and
Belfast ; thirdly, the circumstances of the
traffic from Dublin and from Belfast were not
the same, and the acti(m therefore failed.
Semblc. a flat rate irrespective of distance is
not within the section. Whether the mere
circumstance that the points of departure were
different necessarily and as a matter of law
would take the case out of the section, qutere.
Stone V. Midland Railway (73 L. .7. K.B. 392;
[1904] 1 K.B. 669) discussed and distinguished.
Denaby Main Colliery Co. v. Manchester,
Sheffield, and Lincolnshire Railway (55 L. J.
Q.B. 181 ; 11 App. Cas. 97) considered.
Independent Newspapers, Lim. v. Great
Northern Railway (Ireland), [1913] 2 Ir. R.
255— Gibson, J.
1231
RAILWAY.
1232
Coneignment at "Owner's risk" — " Non-
deliyery of any package or consignment " —
Appreciable Part of Consignment not Delivered
— Non-delivery of Consignment — Damages.] —
A consignment note embodying a contract of
carriage between the plaintiff and the defen-
dants provided (inter alia) for the carriage of
the plaintiff's goods on the defendant's railway
at reduced rates at " owner's risk," but that
nothing therein should exempt the defendants
from any liability they might otherwise incur
in case of " non-delivery of any package or
consignment fully and properly addressed "
except where they proved that the non-delivery
had not been caused by negligence or mis-
conduct on the part of the defendants or their
servants. The plaintiff consigned by the
defendants' railway three consignments of
carcasses. An appreciable part of each con-
signment was not delivered. The plaintiff
claimed damages for the non-delivery, and the
defendants failed to disprove negligence or
misconduct : — Held, by the Court of Appeal
(Buckley, L.J., and Pickford, L.J. ; Phillimore,
L.J., dissenting), that on the construction of
the consignment note the expression " non-
delivery " of a consignment was not confined
to the case in which there had been non-
delivery of every part of a consignment, but
included the case in which there had been non-
delivery of any appreciable part of it ; and
therefore that there had been non-delivery of
the consignments in question, and that the
plaintiff was entitled to damages. Wills v.
Crreat Wextrrn Railway, 84 L. J. K.B. 449;
ri915] 1 K.B. 199 : 112 L. T. 368 ; 59 S. J. 89 ;
31 T. L. R. 60— C. A.
Decision of the Divisional Court (83 L. J.
K.B. 418; [1914] 1 K.B. 263) affirmed. lb.
" Wilful misconduct " — Overloaded Waggon
— Failure of Railway Servants to Gauge
Load.l — A railway company contracted to con-
vey the plant of a switchback railway at a
specially reduced rate, one of the conditions
of the contract being that the proprietor of
the goods should relieve the company of all
liability except for damage arising from the
'■ wilful misconduct " of the company's ser-
vants. One of the company's regulations
directed that all loads must be gauged " when
there is any reason to doubt that they are not
within the dimensions " specified for the lines
over which they have to travel. The station-
master at the station of departure did not
gauge the load, but merely judged the height
of it with his eye and concluded that it did
not exceed the dimensions. In this, however,
ho was mistaken, and part of the load in the
course of transit came in contact with the
smoke board of a bridge beneath which the
train was passing, and was damaged : — Held
(Lord Johnston dissenting), that the damage
was due to " wilful misconduct " of the
stationmaster, for which the company was
liable. Bantable v. North British Railway,
[1912] S. C. 55.5-Ct. of Sess.
Per The Lord President : " Wilful mis-
conduct " is not something more than, and
opposed to, "negligence," and dicta to the
<"ontrary effect in Graham v. Belfast and
Northern Counties Railway ([1901] 2Ir. R.13)
and Lewis v. Great Western Railway (47 L. J
Q.B. 131; 3 Q.B. D. 195) doubted. lb.
— — Special Contract — Limitation of Lia-
bility.]— The defendants, a railway companv.
contracted with the plaintiff to carry certain
theatrical scenery and properties, the defen-
dants being relieved from all liability for
damage except upon proof that it arose from
wilful misconduct on the part of the defen-
dants' servants. The goods were loaded on
the railway truck by the plaintiff's servants,
and the defendants' porters were then told to
cover it with a tarpaulin. There was rain
and snow next day, and when the goods
reached their destination they had been
damaged by wet. In an action by the plain-
tiff against the defendants for damages, the
defendants' servants gave evidence that they
had covered the truck with a tarpaulin and
had fastened it securely, but the jury found
for the plaintiff : — Held, that even assuming
that the evidence of the defendants' servants
was untrue, the evidence was consistent with
an ordinary case of negligence, and there was
no evidence of wilful misconduct within the
meaning of the contract, and therefore the
defendants were entitled to succeed. Norris
V. Great Central Railway, 85 L. J. K.B. 285r!. :
32 T. L. R. 120— D.
Railway Company's Steamer — Special Con-
tract for Carriage of Goods — Whether Just
and Reasonable.] — A railway company which
owns steam vessels, and which by its private
Act has adopted Part TV. of the Railways
Clauses Act, 1863 (relating to steam vessels),
is bound by the provisions of section 7 of
the Railway and Canal Traffic Act, 1854. A
special contract made by such railway com-
pany for the carriage of goods must therefore,
whether the carriage is partly by its railway
and partly by its steamers, or wholly by its
steamers, be just and reasonable, within the
meaning of section 7. A special contract for
the carriage of goods by sea which exempts
the railway company from all liability for
damage due to the negligence of its servants
is not just and reasonable where there is no
alternative rate offered to the consignor upon
which the goods might be carried. Jenkins v.
Great Central Railway, 81 L. J. K.B. 24;
[1912] 1 K.B. 1; 106 L. T. 565; 17 Com. Cas.
32; 12 Asp. M.C. 154; 28 T. L. R. 61— Lord
Coleridge, J.
Damage to Goods during Land Transit
— Condition Exempting Railway Company
from Liability for Loss by Negligence during
Sea Transit — Alternative Rates — Condition
not Just and Reasonable.] — Goods of the
plaintiffs were delivered to the defendants for
conveyance from Antwerp to North Woolwich.
The goods were conveyed from Antwerp to
Parkeston Quay. Harwich, by the defendants'
steamship, and from Harwich to North Wool-
wich by the defendants' railway. During the
journey from Harwich to North Woolwich the
goods were damaged by being wetted by rain
owing to the negligence of the defendants'
servants. The plaintiffs had a standing con-
tract with the defendants by which their goods
were to be carried from Antwerp to North
1233
RAILWAY.
1234
Woolwich At a reduced rate at owners' risk.
For the goods in question the defendants gave
a bill of lading stating that the goods were
to be delivered to the plaintiffs at North
Woolwich, and containing the words " Owners'
risk " and a clause exempting the defendants
from liability for loss or damage due to the
negligence of their servants. There was a
higher rate at which the goods might have
been carried, but even if that higher rate had
been paid the bill of lading would have con-
tained the same negligence clause. In an
action by the plaintiffs claiming in respect of
the damage to the goods : — Held, that, as the
plaintiffs had not an option offered to them,
so far as the sea portion of the transit was
concerned, of having the goods carried by
the defendants with the ordinary liability of
common carriers, the contract as a whole was
not just and reasonable within section 7 of
the Railway and Canal Traffic Act, 1854, and
therefore that the defendants were not pro-
tected from liability, and that the plaintiffs
were entitled to recover. Western Electric Co.
V. Great Eastern Railway, 83 L. J. K.B. 1326;
[1914] 3 K.B. 554 ; 111 L. T. 29 ; 19 Com. Cas.
301; 30 T. L. R. 416— C.A.
Decision of the Divisional Court (82 L. J.
K.B. 746; [1913] 3 K.B. 15) affirmed. Ih.
Special Contract — Damage — Evidence of
Company's Liability.] — The plaintiffs re-
quested the defendants, a railway company, to
send a van for a milling machine weighing
18 cwt. and having a steel base one inch thick
and to take it to a station and forward it by
rail. The defendants sent a van for the
machine, and the plaintiffs' servant handed
to the carman a form of consignment note,
which contained no restrictions exempting the
defendants from any liability for damage to
the machine during transit. The carman re-
quested the plaintiffs' servant to write O.R.
^owner's risk) upon the note tendered by him
and to sign his initials. This he did. The
machine was then taken away in the defen-
dants' van, and was afterwards found damaged
at the station, the base being cracked. The
evidence was that this must have been caused
by a blow while the machine was in the
defendants' custody : — Held, that though the
plaintiffs took the ordinary risks of transit the
defendants remained liable for negligence, and
that as there was prima facie evidence of
negligence the onus lay on the defendants to
prove that there was no negligence, and that
therefore the plaintiffs were entitled to
damages. United Machine Tool Co. v. Great
Western Railway, 30 T. L. R. 312— D.
Carriage of Animals.]— <5ee Animals.
H. RAILWAY COMMISSION.
1. Reasonable Facilities for Traffic.
See also Vol. XL 1514, 1925.
Passenger Accommodation at Station — Level
Crossing.] — Passengers going from one of the
platforms at Leek station to the main build-
ings and station yard or vice versa had to cross
the railway either by a level crossing situate
about 130 yards from the entrance to the
station, and over which shunting operations
from time to time took place, or by means of
a public bridge carrying a main road across
the railway, the carriageway on such bridge
being twenty-five feet wide and without a
footpath on the station side. Upon an appli-
cation for an order directing the railway
company to afford reasonable facilities for
receiving, forwarding, and delivering traffic
at their said station -.—Held, that the appli-
cants had failed to shew that the shunting
operations caused any substantial obstacle to
the free use by passengers of the level crossing
or that there was any appreciable danger to
passengers crossing by either way, and that,
although the station was not a convenient
one, and could be made more convenient at
same considerable expense, nothing less than
reasonable proof (which was not forthcoming)
that the obligation cast upon the railway
company had not been fulfilled could authorise
the Commissioners to interfere with the dis-
cretion of the railway company as to the
arrangement of its stations. Leek Urban
Com^cil V. North Staffordshire Railway,
15 Ry. & Can. Traff. Cas. 105— Ry. Com.
Carriage of Goods in Trader's Trucks —
Shortage of Railway Company's Trucks —
Obligation of Company to Carry.] — Convey-
ance by a railway company of a trader's
merchandise in his own trucks or vans is not
in general one of the "reasonable facilities"
which under section 2 of the Railway and
Canal Traffic Act, 1854, every railway com-
pany is bound to afford for the receiving,
forwarding, and delivering of traffic upon the
railway: but it does become such a reasonable
facility wherever a sufficient number of suit-
able trucks or vans is not provided by the
railway company. Spillers d- Bakers. Lim.
V. Great Western Railway, 80 L. J. K.B. 401 ;
[1911] 1 K.B. 386; 103 L. T. 685; 14 Ry. &
Can. Traff. Cas. 52: 55 S. J. 75;
27 T. L. R. 97— C.A.
The Great Western Railway Company
(Rates and Charges) Order Confirmation Act,
1891, sched., s. 2 (b), in providing that the
rate authorised for conveyance of the mer-
chandise there referred to shall be reduced as
therein mentioned where "the company do
not provide trucks," means that the rate shall
be reduced where the company do not main-
tain and offer for use trucks suitable for the
service required, not that the rate shall be
reduced where the company do maintain and
offer for use suitable trucks, but the trader
uses not the company's trucks, but his own.
lb.
Obligation of Railway to Receive Traders'
Waggons— Substitution of Traders' Waggons
for Waggons Owned by Railway Company-
Obligation of Company to Supply Waggons.^
— Certain traders having applied to the Rail-
way and Canal Commissioners for an order
enjoining certain railway companies (inter
alia) to give the same facilities for the use of
traders' waggons as of the companies' waggons
and to desist from refusing to carry traffic in
traders' waggons, and the Commissioners
having ordered a proof or enquiry into facts,
1235
EAILWAY.
1236
the defendant companies appealed on the
ground that the applicants sought only for a
declaration of legal right to have their waggons
conveyed on the defendants' railways, and that
the Commissioners had no jurisdiction to enter-
tain the same : — Held, that, inasmuch as the
real question raised by the applicants was
whether their waggons should be received on
the railways as a reasonable facility, the
Commissioners had jurisdiction. Watson v.
Caledonian Railway, 14 Ry. & Can. Traff. Cas.
185; [1910] S. C. 1066— Ct. of Sess.
Practice.] — In applying section 2 of the
Eailway and Canal Traffice Act, 1854, the
Commissioners will only consider a demand
for reasonable facilities with reference to the
circumstances of each concrete case and will
not declare an abstract right, so that they
will refuse to make an order that a trader
shall be entitled as a reasonable facility to
put such waggons on a railway company's
lines as he considers necessary for the proper
working of his traffic, irrespective of what
number of waggons the railway company
tender for that purpose. Watson v. Caledonian
Railway, 14 Ey & Can. Traff. Cas. 185— Ey.
Com.
Such an order would enable the trader to
displace the whole of the railway company's
waggons and substitute waggons of his own,
a claim which, in view of the practice in
Scotland, whereby more than half of the
waggons required for the coal trade are
supplied by the railway companies, would
not be entertained by the Court. The case
of Spillers if- Bakers v. Great Western Railway
(supra) distinguished as being a case concern-
ing ordinary merchandise which it had never
been the practice to carry in traders' waggons,
and as not applying to the circumstances of
mineral traffic. lb.
Decision of Railway Commissioners —
Appeal.": — The Court of Appeal will not, ex-
cept under extraordinary circumstances, review
the decision of the Eailway Commissioners as
to what in their view are " reasonable facili-
ties." Per Farwell. L.J. : It is within the
power of the Eailway Commissioners, in
exercising their discretion, to refuse to order,
as a " reasonable facility," a railway com-
pany to receive coal traffic upon running lines
where there are no exchange sidings. Great
Central Railway v. Lancashire and Yorkshire
Railway. 14 Ry. k Can. Traff. Cas. 131— C. A.
Railway Lines Taken over by Government
for His Majesty's Service — Competency of Com-
plaint against Railway Company for Want of
Reasonable Facilities. —Wlier(> the possession
and control of the railroad and plant of a
railway company have been taken by the
Government inider a warrant issued by a
Secretary of State under section 16 of the
Regulation of the Forces Act, 1871, which
empowers the taking of possession of all the
railroads in Great Britain, in the event of
an emergency arising, for His Majesty's
service, an Order in Council having declared
that an emergency had arisen, an application
may still be made by a trader to the Eailway
and Canal Commission Court, under section 2
of the Railway and Canal Traffic Act, 1854,
complaining that reasonable facilities have not
been afforded to him, inasmuch as it does not
necessarily follow that the complete control of
the railway has been taken by the Govern-
ment from the railway company, as the
Government may delegate to the railway
company the right to exercise the actual
control over the working of the railway in so
far as it does not interfere with the para-
mount right vested in the Government to use
the railway for His Majesty's service. On
such application the burden lies upon the
railway company of shewing that it is not
within their power to give such facilities,
inasmuch as prima facie the railway company
are still under the obligation of giving reason-
able facilities. Denahy and Cadeby Main
Collieries v. Great Central Railway, 84 L. J.
K.B. 2-201; 113 L. T. 191; 31 T.' L. E. 386
— Ey Com.
2. Eates and Charges.
See also Vol. XI. 1-520, 1942.
Classification of Merchandise — Amendment
by Board of Trade — Motor Car Chassis,
whether a "Carriage."] — A motor chassis i?
a " carriage " within the meaning of Part III.
of the schedule annexed to the Eailway Eates
and Charges Order Confirmation Acts, 1891.
1892, only when it is consigned to the railway
companies for conveyance, having been pro-
pelled to their premises by its own mechanical
power or drawn thither on its own wheels by
a locomotive. London and North-Western
Railway v. Society of Motor Manujacturers,
14 Ev. and Can. Traff. Cas. 294; 27 T. L. E.
518^Ry. Com.
Goods Misdescribed in Order to be Sent
at Lower Rate — Penalty.] — An electric stator
forming part of a single-phase alternator
generator was sent by the appellants by rail
from Birmingham to Bedford. It was in two
parts and packed in two cases, and was
described as " two cases bearers." The rate
applicable to the carriage of bearers at owner's
risk was 9s. Id., and for machinery and
generators at company's risk was 22s. 9d.,
but there was no rate in respect of electrical
machinery or generators in parts at owner '.s
risk. The railway company accepted the stator
and charged on it at 9s. 2d. as if the descrip-
tion given by the appellants w-as accurate.
The appellants were summoned under section
99 of the Railways Clauses Consolidation Act,
1845, for giving a false account of the goods
so consigned with intent to avoid the payment
of tolls in respect thereof, and the Justices
convicted the appellants : — Held, that the con-
viction was right. General Electric Co. v.
Evans, 105 L. T. 199; 75 J. P. 406— D.
Classification of Rates — " Dangerous goods "
— Liquid Metal Polish.^ — Goods wliicli arc not
included in any part of the statutory classifica-
tion and which are declared by a railway com-
pany, acting bona fide, to be dangerous goods,
are " dangerous goods " within the meaning
of Part IV. of the statutory schedule to the
Railway Charges Acts. The Court, on the
1237
EAILWAY.
1238
application of the railway company, made a
declaration that liquid metal polish having a
flash-point of over 73 degrees Fahrenheit (Abel
close test) in securely closed tins in cases was
" dangerous goods " within Part TV. of the
statutory schedule. 'North -Eastern Railway v.
Reckitt, 109 L. T. 327; 29 T. L. R. 573;
15 Ry. & Can. Traff. Cas. 137— Ey. Com.
Notice of Increase — Requisite Form — Set-
ting out New Rates in Rate Book.] — Certain
railway companies advertised that they in-
tended to increase their rates. The advertise-
ment stated generally that subject to the
statutory maxima existing rates of not more
than \s. would be increased by if/., rates of
between 1.?. and 25. would be increased by Id.
and so forth. Traders objected that the notices
were not in the form required by statute, and
that as the contemplated increases in rates
were not set out individually in the rate book
the new rates would be illegal and could not
be enforced : — Held, that the notices of in-
crease were sufficient, and that it was not
necessary to set out the new rates individually
in the rate book. British Portland Cement
Manufacturers, Lim. v. Great Eastern Rail-
way, 111 L. T. 586; 30 T. L. R. 523;
15 Ey. & Can. Traff. Cas. 213— Ey. Com.
Increase of Rates — Local and Through
Rates — Joinder of Several Railway Companies
as Defendants to One Application.] — The
applicants made an application to the Eailway
and Canal Commission Court complaining of
the increase of the rates of the railway com-
panies who carried their goods, and they
joined ten railway companies as defendants to
one application. Some of the rates complained
of were local rates and some were through
rates. One railway company against whom
the rates complained of were local rates
applied to the Eegistrar to be struck out of
the application. The Eegistrar dismissed the
application and awarded the applicants the
costs of the application : — Held, on the appeal
of the railwa}' company, that there was
nothing in the Eules of the Eailway and Canal
Commission Court which imposed a limit as
to the number of persons who might be joined
as defendants in any application, and that
therefore the applicants were not precluded
from joining the ten railway companies as
defendants to one application, and the railway
company was not entitled to be struck out of
the proceedings. Stnith, Stone cf Knight,
Lim. V. London and North-W estern Railway.
83 L. J. K.B. 1690; [1914] 3 K.B. 1195;
111 L. T. 1117 ; 15 Ey. & Can. Traff. Cas. 321 ;
30 T. L. E. 645— Ey. Com.
Classification of Traffic — Article not In-
cluded in Original Classification — Alteration
in Description of Article — Transfer of Article
to Higher Class.] — The ap])licants liad con-
signed certain traffic under the description of
" bundles of water pipes," which was curried
by the railway companies originally at Class C
or at Class 1 rat(^s, according to tlie weight
consigned. The articles in question were coils
of pipe which became known as radiators,
after the classification set out in the railway
companies Eates and Charges Order Acts was
made. The railway companies subsequently
placed the said traffic in Class 2 of their
classification, and, except as to certain
stations, charged upon all consignments of
such traffic Class 2 rates on the ground that
the applicants originally had not properlv
declared and described the articles consigned
by them : — Held, that as radiators were
omitted from the classification the proper
course was to apply to the Board of Trade,
and that the Eailway Commissioners were not
the tribunal to decide as to how the articles
in question should be classified. Held, also,
that there had been an increase in the rates
which upon the evidence had not been justi-
fied. Beeston Foundry Co. v. Midland Rail-
way, 14 Ey. & Can. Traff. Cas. 119— Ey. Com.
Disintegration of Rates.] — A trader is
entitled to an order for a disintegration of
rates provided that he is bona fide interested
in the traffic and desires the information
for the purpose of facilitating his business,
although it may be in the nature of di.scovery.
Synith, Stone £ Knight v. London and North-
western Railway, 15 Ey. & Can. Traff. Cas.
327— Ey. Com.
Special Act — Previous Sanction by the
Commissioners — Practice — Representation of
Limited Company by Traffic Manager,] — Sec
tion 30 of the South-Eastern and London,
Chatham and Dover Eailway Companies Act,
1899, enacts that : " The fares (including
those for season tickets and, where such now
exist, the cheap fares on certain days in the
week), rates and charges existing on the first
day of May, 1899, shall not be increased
by either of the two companies, or by the
managing committee, without the sanction to
such increase being first obtained of the
Eailway and Canal Commissioners, who shall
have jurisdiction in like manner as if the
Eailway and Canal Traffic Acts were appli-
cable to the matter to hear all parties
concerned, and to determine whether any,
and, if so, what, increase of such fares, rates,
and charges, shall thenceforth be made."
Upon an application pursuant to the above
Act by the two companies and their managing
committee for an order sanctioning certain
increases in the rates for merchandise traffic,
and upon the applicants shewing that the cost
of working their goods traffic had materially
increased : — Held, that the said increases
should be sanctioned subject to the condition
tliat any person thereby affected should be
at liberty thereafter to apply to the Court to
vary or withdraw such sanction. South-
Eastern and London, Chatham and Dover
Railway, Ex parte, 15 R-y. it Can. Traff. Cas.
154 — Ey. Com.
Amalgamation of Railway Companies —
Necessity of Previous Sanction by the Commis-
sioners under Special Act — Material Compara-
tive Dates.'! — UndiT two Amalgamation .\cts
passed in 19(K). tlie Waterford, Limerick and
Western and the Waterford and Central
Ireland railway companies were amalgamated
with, and became part of, the undertaking
of tiie Great Soutliern and Western railway
company ; and by the said Acts it was enacted
1239
RAILWAY.
1240
that the actual rates charged on June 30,
1900, on any railway theretofore worked or
owned by either of the companies so amal-
gamated with the Great Southern and
Western company, or by the last-named
company, or partly on the railways of the
first-named companies and partly on the rail-
ways of the last-named company, should not
he increased directly or indirectly without the
consent of the Eailway Commissioners. It
was also enacted by section 57 of the Fish-
guard and Rosslare Railway and Harbours
Act, 1899, that all through bookings which
at the passing thereof were in operation via
the port of Waterford between certain points
should continue, and that the through fares,
rates and charges in force on December 31,
1898, via the port of Waterford should not
be raised, except with the consent of the
Board of Trade or the Eailway Commissioners.
Upon applications pursuant to the above Acts
for orders sanctioning increases equal to an
average of 4 per cent, of all local rates, for
goods and merchandise traffic, and for perish-
able traffic carried by passenger train, and
also sanctioning similar increases of through
rates via Waterford, various tables in support
were put in evidence comparing receipts,
working expenses, and other figures for the
year 1892 (when the scale of maximum rates
was fixed) and 1897 on the one hand, and
the year 1912 on the other; but, with certain
exceptions, no comparison was instituted
between the period immediately succeeding
the said amalgamation in 1900 and the date
of the applications. The result shewn by the
above tables was that the percentage of
working expenses had increased as between
the years 1892 and 1912, but certain tables
comparing the year 1901 (the year succeeding
amalgamation) and 1912, which were subse-
quently prepared at the request of the Court,
shewed that such percentage had consider-
ably decreased as between the last-mentioned
years : — Held, that the year 1892, which was
prior to the amalgamation, could not be
accepted as the proper year for comparison,
and that the year succeeding the amalgama-
tion, unless abnormal, should be adopted :
the question to be considered being how, if
at all, the circumstances had altered since
the date when the Legislature said that the
actual rates then in force were not to be
increased without the consent of the Court ;
and also that in view of the decrease of the
percentage of working expenses to receipts,
and also of the net increase in the train mile
and tonnage receipts as between the year
succeeding the amalgamations and the period
preceding the application, the applicants had
failed to justify the proposed increases of
rates, and that the sanction of the Court
thereto should be refused. Great Southern
and Western Raihcay. Ex parte, 15 Ry. &
Can. Traff. Cas. 282— Ry. Cora.
Classification of Traffic — Article not In-
cluded therein — Alteration in Description of
Article — Transfer of Article to Higher Class.'
— The applicants for a period of thirty years
prior to 1912 had consigned steel " strips "
(one-eighth of an inch in thickness and not
exceeding twelve inches in width) by rail from
Sheffield to London and other places. Such
strips were despatched either unpacked, or
packed in cases or casks, and were described
as " Bessemer undamageable " or " undamage-
able steel hoops." They were carried, whether
packed or unpacked, at Class C rates, amount-
ing, in the case of two-ton lots from Sheffield
to London, to 135. id. per ton. In 1891
" strips not packed " were placed in Class C
of the general railway classification, while
packed strips remained unclassified. From
1908 an exceptional rate was quoted in the
rate books for steel strips packed, from
Sheffield to London, at 18s. id. per ton, but
such rate was not charged to the appli-
cants' traffic, which continued to be described
as traffic. In 1910 strips iron and steel,
" except otherwise herein provided " — that is,
packed — were introduced into Class 2 of the
general railway classification, but the appli-
cants continued to pay the old rate on their
traffic, under its usual description. In 1912
the railway companies required the applicants
to describe such traffic, where packed, as
" steel strips," and charged for its carriage
from Sheffield to London the Class 2 or an
exceptional rate of 18s. id. per ton. The
railway companies contended that " steel
strips packed " being unclassified they were
entitled, under section 20 of their Rates and
Charges Order, 1891, to charge Class 3 or
any lower rates, and stated that this would
have been done had the applicants truly
declared the contents of the cases or casks
containing their steel strips. Upon a com-
plaint by the applicants that the defendant
railway companies had increased the rates
for their traffic and that such increase was
unreasonable : — Held, that on the evidence
the railway companies did in fact know of
the contents of the cases and casks consigned
by the applicants, and that in charging for
such traffic Class 2 rates in lieu of Class C
rates they had increased the rates ; and also
that the fact that other traders had paid the
higher rates on similar traffic did not in itself
justify the increases complained of, although
the defendants would have laid the founda-
tion for argument if they had proved that
the volume of traffic upon which the higher
charge was paid was really substantial as
compared with that upon which the lower
rate was paid. Beesley v. Midland Railway,
15 Ry. & Can. Traff. Cas. 306— Ry. Com.
Held, further, that the above decision
should not prejudge an application to the
Board of Trade for the classification of the
traffic in question. 76.
Justification of Increase — Method of Proof
— Increase in Ratio of Working Expenses.] —
Upon a complaint by an association of traders
that a railway company who had from the year
1897 until July 1, 1907, carried coal on the
basis of 20 J cwt. to the ton, had since the
latter date charged the same rates for the
carriage of coal, but on the basis of 20 cwt.
to the ton (the approximate effect whereof
was to increase by 2J per cent, every rate for
the carriage of coal), and that such increase
was unreasonable : — Held, that the railway
company, having shewn an increase in the
ratio of working expenses to receipts at least
1241
KAIL WAY.
1242
equal to the increase in rates, and having
called evidence to the effect that such increase
was due to an increase in the cost of working
and not to a decrease in receipts, to which
evidence no cross-examination had been
directed, had justified the increase complained
of. Coal Merchants' Society v. Midland
Railway, 14 Ey. & Can. Traff. Cas. 100—
Ky. Com.
Computation of Weight no Longer Allowed
— Knowledge by Railway Company of Indirect
Advantage to Trader.] — From 1893 onwards
the applicants' soap was carried by the Mid-
land Kailway Co. at a computed weight of
1 cwt. 10 lb., which was made up of 1 cwt. or
two J cwts. of soap along with the boxes
in which the soap was packed. This com-
putation being less than the actual weight
resulted in a gain to the applicants in 1906
of 6 to 8J lb. per cwt., making a difference
of 1,400L in the annual payment of the appli-
cants to the railway company. On April 1,
1907, the railway company refused to carry
the applicants' soap except at the actual
weight of each consignment. Upon a com-
plaint that the railway company had in-
directly increased the rates charged to the
applicants, — Held, that there was no evidence
that there was any agreement on the part of
the railway company that the system of carry-
ing at a computed weight should be continued,
and that even if it was assumed that the
railway knew that they were carrying at less
than the actual weight, thus giving an ad-
vantage to the applicants, it was prima facie
reasonable for them to charge according to
actual weight and so put the applicants on
the same footing as other traders. Watson
V. Midland Raihcay, 14 Ry. & Can. Traff.
Cas. 18— C. A.
Held, further, that the Court of Appeal
was bound by the finding of the Railway
Commissioners that the action of the railway
company in abolishing the system of com-
putation was reasonable. lb.
Through Rate — Fixed by Agreement —
Apportionment — Application to Re-apportion
Rate — Jurisdiction of Railway Commis-
sioners.]— Where there is an existing through
rate fixed by agreement between two railway
companies, and also an agreed apportionment
between them which has not been cancelled or
challenged, the Railway and Canal Commis-
sioners have no jurisdiction to entertain an
application by one of the companies for a re-
apportionment of the agreed rate or of a
through rate of the same amount proposed
by the applicants. The duty and power of
apportionment of the Commissioners under
section 25 of the Railway and Canal Traffic
Act, 1888, are only incidental to the giving of
reasonable facilities for the conveyance of
traffic from one point to another. Manchester
Ship Canal Co. v. London and North-Western
Railway, 80 L. J. K.B. 676; fl^H] 1 K.B.
■657 ; 104 L. T. 81 ; 14 Ry. & Can. Traff. Cas.
141— C. A.
Existing Rate by Alternative Route —
Lower Mileage Rate — Public Interest.] — Sec-
tion 25, sub-section 5 of the Railway and
Canal Traffic Act, 1888, enacts : "If an
objection be made to the granting of the
(through) rate or to the route, the Commis-
sioners shall consider whether the grantiu'^
of a rate is a due and reasonable facility in
the interest of the public." Section 25, sub-
section 9 of the same Act enacts : "It shall
not be lawful for the Commissioners in any
case to compel any company to accept lower
mileage rates than the mileage rates which
such company may for the time being legally
be charging for like traffic carried by a like
mode of transit on any other line of com-
munication between the same points, being
the points of departure and arrival of the
through route." The railways or parts of the
railways of the South Yorkshire Joint Railway
Committee, the Lancashire and Yorkshire
Railway Co., the Dearne Valley Railway
Co., and the Hull and Barnsley Railway Co.
formed a continuous route from the D. colliery
to the A. dock, Hull. The Lancashire and
Yorkshire Railway Co. were joint owners of
the South Yorkshire Railway and had a con-
trolling interest in the Dearne Valley Railway,
and were authorised by statute to fix and
quote through rates over the former railway.
A through rate for coal between the above
points was already in operation by means of
another route owned as to part by the Great
Central and as to part by the Hull and
Barnsley Railway Cos. ; such last mentioned
route was four miles shorter than the proposed
route, and the owning companies worked the
traffic over their own railway respectively.
The existing rate was governed by the rate
charged by another company, who owned a
third competitive route to Hull (but not to
the A. dock), twenty-two miles shorter than
the existing Great Central and Hull and
Barnsley route. The annual coal traffic
between the points in question was 80,000 to
90,000 tons. Upon an application by the
Lancashire and Yorkshire and Dearne Valley
companies for a through rate for coal between
the above points of the same amount as the
existing through rate : — Held, that the pro-
posed through rate was a reasonable facility,
and that it must be granted subject to the
condition that the defendants, in view of the
circumstances of the case, should be allowed
the same tonnage apportionment thereof as
they received out of the existing rate over
the alternative route of which they were part
owners. Lancashire and Yorkshire Railway
V. Hull and Barnsley Railway Co., 15 Ry. ifc
Can. Traff. Cas. 59— Ry. Com.
Held, further, that, inasmuch as the defen-
dants were not carrying throughout the entire
alternative route, section 25, sub-section 9 of
the Railway and Canal Traffic Act, 1888, did
not apply to the application. 76.
Apportionment of Through Land and Sea
Rates.] — Thnjugh land and sea rates are not
to be apportioned according to mileage. Great
Southern and Westeryi Railway v. City of
Cork Steam Packet Co., 15 Ry. & Can. Traff.
Cas. 67— Ry. Com.
Congested Route — Alternative Route —
Apportionment — Special Expense in Working.]
—Upon an application by (1) the Dearne
1243
RAILWAY.
1244
Valley Railway Co. and (2) the Lancashire
and Yorkshire Railway Co., for through rates
for shipment coal from certain collieries on
their respective railways to Grimsby Dock
over part of their own railways and part of
the railways of the Great Northern and Great
Central Railway Cos., the Great Northern
Railway Co. objected to the route proposed
in the first case, and called evidence to the
effect that there was an alternative available
route and that the proposed route passed over
an extremely congested part of their system,
where much difficulty was experienced in
working the existing traffic. The traffic in
question had been accepted by them over the
proposed route for about two and a half years,
but they had since refused to receive it. The
Great Central Railway Co. objected to the
proposed apportionment of both rates, on the
ground that the amount allocated to them for
terminals at Grimsby (3d. per ton), which
sum was stated to be the usual charge agreed
to by all railway companies, was insufficient,
inasmuch as it was less than the special
expense incurred by them in working there : —
Held, that the route proposed in the first
case was reasonable, and that it was not
sufficient to shew that the receiving of the
traffic in question would render a difficult
task more difficult, unless such traffic would
amount to an obstruction — that is to say,
that it would create such disorganisation and
delay as would produce inconvenience and
loss to traders interested in traffic already
using, or entitled to use, the accommodation
at the point in question ; and also that it is
material to consider whether the route pro-
posed is the only available route, or whether
there are one or more other routes available.
Dearne Valley Railway v. Great Northern
Raihcay, 15 Ry. & Can. Traff. Cas. 202—
Ry. Com.
Held, further, as to the apportionment,
that, although it may be shewn that an
arrangement between railway companies is
very widely accepted, it is not open to the
Coiirt to reject evidence as to the proper
terminal at any port of shipment. lb.
Application by Owner of Private Siding
— Guarantee as to Amount of Traffic —
Through Rate already in Existence — Public
Interest.] — The applicants were the owners of
a private siding at W. communicating with
the railway of the C. L. Committee, and they
asked for through rates for slack between
certain collieries and their siding. Through
rates for slack carried in four-ton lots and
upwards were already in existence between
the said points. The route proposed by the
applicants was approximately ten miles
shorter than that by which the traffic was
ordinarily being carried, but the existing
through rates applied to traffic consigned by
either route. The applicants offered to
guarantee to send at least 600 tons of slack
per week. The rates proposed by them were
in each case l.s. 2(f. per ton as compared with
the existing rate of Is. lid. No evidence was
given that the proposed rates were in the
public interest : — Held, that the Court was
not at liberty to assume without evidence that
the proposed rates would be in the interests
of the public ; that section 25 of the Railway
and Canal Traffic Act, 1888, was not intended
to have the effect of reducing rates, but only
to enforce the granting of facilities; and that,
therefore, in the absence of evidence that the
existing through rates were unreasonable,
there was no ground for fixing any other rate.
Brunner, Mond d Co. v. Cheshire Lines Com-
mittee, 14 Rv. & Can. Trafif. Cas. 124;
25 T. L. R. 618— Ry. Com.
A trader interested may apply for a through
rate to a private siding. Ih.
London Docks.] ^The Court refused to
grant a through rate between the applicants"
Victoria and Albert Docks in London and
certain places in the provinces, being of opinion
that it was inexpedient to disturb the present
rates or charges to these docks. Port of
London Authority v. Midland Railway (No. 2).
106 L. T. 652 ; 28 T. L. R. 236 ; 15 Rv. & Can.
Traff. Cas. 23— Ry. Com.
Complaint of Undue Preference — Appli-
ance— Company a Party to Rate — No Relief
Claimed.] — Where a complaint of undue pre-
ference in regard to a through rate is made to
the Railway and Canal Commission, the appli-
cants are entitled to join as respondents any
railway company which is a party to the
through rate, even though the applicants do
not ask for any relief as against such company.
Read. Holliday d Sons, Lim. v. Great Central
Railway, [1915] 3 K.B. 616; 31 T. L. R. 537
— C.A.
Group Rates — Application by Port of London
Authority to Fix Through Rates — Application
for Leave to Intervene by other Railway Com-
panies.]— On an application by the Port of
London Authority against the Midland Rail-
way under section 31, sub-section 1 of the
Port of London Act, 1908, to fix certain
through rates from the Royal Victoria Dock
and the Albert Dock to various inland towns,
the London and North-Western Railway and
the Great Northern Railway asked for leave
to intervene on the ground that they were
directly concerned in the group rates applic-
able to rail-borne traffic to and from the
docks, and further on the ground that their
rights under various agreements made be-
tween them and the several dock companies,
the predecessors in title of the Port of London
Authority, would be prejudicially affected if
the application of the Port of London Autho-
rity were granted : — Held, first, that the
Railway and Canal Commission Court had
jurisdiction to allow the intervention claimed;
and secondly, that in the circumstances it was
just and expedient that the intervention should
be allowed. Port of London Authority v.
Midland Railway (No. 1), 81 L. J. K.B. 600;
[1912] 2 K.B. i; 105 L. T. 558; 15 Ry. &
Can. Traff. Cas. 28— Ry. Com.
Siding Rebate — Non-provision of Station
Accommodation — Non-statutory Agreement —
Similar Rates for Station and Non-station
Traffic' — By an agreement made in 1879 the
defendant railway company undertook to allow
to the applicants, who were traders at N., a
rebate of 3d. per ton. in respect of the appli-
1245
RAILWAY.
1246
cants performing their owu loading and un-
loading, on all goods delivered to or received
l)y the railway company from the applicants,
and the applicants agreed to pay an extra
toll of 6d. for all goods carried over the Q.
line of railway. By another agreement of
1892, made between the defendant railway
company and the corporation of X., the rail-
way company agreed not to make any charge
in respect of the said Q. railway so long as
the rates paid for traffic using that railway
were the same as the rates paid for similar
traffic to or from their goods station at N.
The whole of the applicants' traffic used the
said Q. railway and also a yard of the defen-
dants adjoining the applicants' siding, and
the rates paid in respect thereof had, subject
to the rebate of 3d. per ton given by the
agreement of 1879, always been the same as
these charged for similar traffic using the
defendants' good station, although nearly
the whole of the applicants' traffic was loaded 1
and unloaded on their own premises. The
applicants had, since the agreement made by
the corporation in 1892, ceased to pay the toll
of 6d. per ton in respect of the Q. railway.
Upon an application to determine the amount
of rebate to be allowed off the rates paid by
the applicants in respect of their having pro-
vided their own station accommodation, —
Held, that on the evidence it was the inten-
tion of the parties when making the agree-
ment of 1879 that, subject to the rebate of 3d.
per ton, the applicants should pay the same
rates as those charged for similar traffic
using the defendants' goods station, on the
basis that the accommodation in connection
with the applicants' siding afforded at the
railway company's yard was as valuable as j
that afforded to similar traffic at the station.
Held, also, that the rates referred to in the
corporation agreement of 1892 were rates
which included station accommodation. New-
castle Grain Co. v. North-Eastern Railway,
14 Ry. & Can. Traff. Cas. 275— Ry. Com.
Terminal Station — Non-statutory Agree-
ment— "Mileage" Charges.1 — By an agree-
ment made on April 13. 1864, the benefit
whereof had since 1891 been vested in the
applicants, the Vale of N. Railway Co.,
which in 1866 was amalgamated with the
defendant railway company, agreed to con-
struct certain sidings in front of certain
warehouses, afterwards and at the date of
the application leased to the applicants, and
to work the traffic from the principal
siding free of charge. Clause 6 of the said
agreement was as follows : " The said ware-
houses shall in computing the amount of
mileage to be paid to the said company be
considered a terminal station in regard to all
goods, wares, merchandises or other things
conveyed thereto or therefrom on the said
main line and no extra charge shall be made
in consequence of the trucks, waggons, or
carriages going to or from the said warehouses
instead of to or from any ordinary terminus
or station of the said company." The said
sidings were duly constructed, and the same
rates had always been charged for the traffic
to and from such sidings as for similar traffic
of other traders using the terminal station of
the defendant railwaj' company at S. : — Held,
that the effect of the agreement was that the
railway company were only entitled to charge
the applicants in respect of the traffic to and
from the said sidings a mileage rate calculated
by the distance traversed both on the railway
company's own line and on such sidings, and
that the agreement being silent as to terminal
charges the applicants were entitled to a
rebate off the rates charged them in respect
of their siding traffic. Weaver d Co., Lim.
V. Great Western Railway Co., 15 Ry. &
Can. Traff. Cas. 1— C.A.
Similar Rates for Siding and Station Traffic
Inference as to Inclusion of Terminal Charges
in Station Rate — Measure of Rebate — Special
Services.] — The applicants, who were metal
manufacturers, were the owners of private
sidings communicating with the railway of the
defendant company. The same rates were
charged by the defendants for the applicants'
siding traffic as for similar traffic of other
traders using the defendants' goods station at
B. The defendants alleged that the station
rate included no terminals owing to the exist-
ence of canal competition, and alternatively
claimed that they were entitled to charge for
special services rendered at and in connection
with the applicants' siding. A siding rate
book kept by the defendants stated that in the
rates in question no charge was made for
terminal accommodation or services : — Held,
that, notwithstanding the statement in the
siding rate book that no terminal charges
were included in the station rates, it could
not be assumed that the defendants were per-
forming services and giving accommodation at
their station for nothing, and that, therefore,
some terminal charges were presumably in-
cluded in their station rates, and, further,
that, in view of the rates for both siding and
station traffic being the same, it must be in-
ferred that the siding rates included the same
elements of charge as the station rates,
thereby entitling the applicants to a rebate
corresponding to the amount of such terminal
charges. And that such rebate might be and
was on the evidence counterbalanced in part
by the charges which the defendants were
entitled to make for services rendered by
them in connection with the applicants'
sidings, and that the proper method to ascer-
tain the net rebate (if any) due to the appli-
cants was to consider from a business point
of view what was the money value of the
accommodation provided and the services
rendered at the station, and to deduct from
that sum the value of the services rendered
at the siding ; the difference (if any) giving
the rebate. Muntz's Metal Co. v. London
and North-Western Railway, 14 Rv. & Can.
Traff. Cas. 284— Ry. Com.
Special Services at Private Siding — Implied
Request to Perform " Conveyance," when Ter-
minated."^— The applicants had priva*^e sidings
with certain railways for the supply of coal
to their gasworks situate in several places in
B. : — Held, that, owing to the lack of accom-
modation at one of the works and the difficulty
of working the line to another, the railway
company were required to perform, and there-
124^
llAILWAY.
1248
fore entitled to charge for, special services in
addition to those incidental to conveyance. A
request that such special services be performed
need not be express, but can be implied from
the necessities of the trafiic. " Conveyance,"
properly so-called, does not terminate until the
siding points are reached, but it must be a
question of fact in each case whether the
service rendered is incident to conveyance.
Birmingham Corporatioii v. Midland Railway,
101 L. T. 920; 14 Ey. & Can. Traff. Cas.
24; 26 T. L. R. 46— Ry. Com.
Charge for " Sorting."] — The applicants dis-
patched a considerable outward traffic from
their works. The outgoing trucks were placed
on the applicants' siding in whatever order
they happened to be ready, irrespective of
their destination. It was necessary for the
railway company before attaching them to
the train proceeding to their destination to
first take them to their own sidings and there
sort them or arrange them according to their
respective points of destination so that they
might be attached to the proper train : — Held,
that the trader must tender his traffic upon
his siding in a condition reasonably fit for
conveyance, and that this service of " sort-
ing " — as distinguished from "marshalling"
or the arranging the order of the trucks on
a particular train — was not incident to con-
veyance, but was a special service for which
the railway company were entitled to charge
under section 5, sub-section 1 of the schedule
to the Railway Rates and Charges Order Con-
firmation Act, 1891-2. lb.
Charge for Use of Trucks — Distance not
Exceeding Twenty Miles — Two Railways.] —
Section 9 of the schedule to the London and
North- Western Railway Company's Rates
and Charges Order Act, 1891, authorises the
company " to charge for the use of trucks
provided by them for the conveyance of mer-
chandise when the provision of trucks is not
included in the maximum rates for conveyance
any sums not exceeding the following (inteT
alia), " for distances not exceeding twenty
miles, 4Jd. per ton " : — Held, that this rate
of 4Jd. per ton applied to the total transit
and that the railway company were not
entitled to charge a further rate in respect
of the transit over another company's railway
where the entire journey did not exceed
twenty miles. lb.
Weighing of Loaded Coal Waggons by Rail-
way Company — Reasonable Charge for such
Service— Notice to Discontinue.]— Section 5 of
the schedule to the Railway Rates and
Charges Orders Confirmation Acts, 1891-2,
enacts that for certain services (which include
" weighing merchandise " : sub-section 3),
when rendered to the trader " at his request
or for his convenience," the railway company
may charge a reasonable sum by way of
addition to the tonnage rate. A railway
company weighed coal, which had been loaded
into waggons from the ship's side, and thus
enabled a coal trader to furnish the parti-
culars required by statute for his consignment
note, it being practically impossible for the
trader to weigh it himself before conveyance :
— Held, that this was a service which was
not included in the charge for terminal accom-
modation, but was performed in fact for the
trader's convenience, and must at law be
taken to be done at his request (aliter, where
the railway company weighs goods to check
the weights declared by the trader) ; that such
service was therefore chargeable under the
above section, and that a notice from the
trader to the railway company stating that
such service was not incurred at his request
or for his convenience was inoperative, so long
as he availed himself of it. Great Southern
and Western Railway v. Wallace, 15 Ry. &
Can. Traff. Cas. 75— Ry. Com.
Free Time for Detention of Railway Com-
pany's Waggons.]— i/eZd, further, that under
the circumstances the free time allowed to
the trader for the use of the railway com-
pany's waggons before conveyance should be
a period of one clear day after the day on
which the coal in the waggons had been
weighed and the note of such weighing was
available for the consignor or his agent. lb.
Private Waggons — Necessity of Repair —
Siding and Shunting Charges— -Jurisdiction of
County Court.] — The respondent, who was a
coal merchant, owned railway waggons which
ran over the appellants' railway, and when
they fell out of repair they were shunted on
to a siding of the appellants and the respondent
sent a man to repair them. The appellants
brought a County Court action against the
respondent for siding and shunting charges in
respect of the waggons shunted on to their
sidings for repair. The respondent had had
notice of the company's charges for these
services. The Judge held that he had no juris-
diction and that the matter should go before
an arbitrator : — Held, on appeal, that the
Judge had jurisdiction. London and North-
western Railway v. Duerden, 85 L. J. K.B.
176; 113 L. T. 285; 31 T. L. R. 367— D.
Demurrage on Waggons — Siding Rent —
Rates — Traders' Waggons — Reasonable
Facility.] — On an application with regard to
differences which had arisen under section 5
of the Railway Rates and Charges Act, 1892,
between railway companies and traders in
respect of claims by the railway companies
for the undue detention of waggons and
waggon sheets, the Railway and Canal Com-
missioners held that the railway companies
were entitled to claim in respect of the deten-
tion before conveyance of their waggons and
sheets after the expiry of one day from the
time the waggons or sheets were supplied ;
that they were entitled to claim for the
detention of waggons and sheets after con-
veyance, in the case of shipment and siding
traffic, after the expiry of four days from the
time of arrival of the waggons or sheets at the
port or siding, and in the case of station
traffic after the expiry of four days from the
notice of arrival of the waggons or sheets at
the station ; that in the case of coal for ship-
ment an extra day should be allowed before
conveyance free of demurrage. Held, further,
that a trader cannot be called i:pon to pay for
delay in conveyance which has been occasioned
1249
I^MLWAY
12oa
by fog, snow, frost, or causes of a similar
character, or by some error on the part of the
railway company "s servants. The accounts as
rendered by the railway company to the trader
should charge him with what the company is
entitled to recover, and no more, as they have
the means of knowing through their servants
when this delay has occurred during the period
of conveyance. The question whether it is a
reasonable facility that goods should be con-
veyed in traders' trucks is one of fact, and
necessarily depends on the circumstances of
the case. In considering that question the
Railway Commissioners are not confined to the
convenience of the traders in a particular case,
but may take into consideration the interests
of the railway company as well as those of the
trader, the comparative cost and convenience,
and the effect of the facility sought on other
traders and the public using the line.
Caledonian Railway v. Lanarkshire Coal-
masters' Association, 27 T. L. E. 221 —
Ry. Com.
Detention of Trucks — Right of Action for
Damages — Reasonableness of Charges — Arbi-
tration— "Difference."] — The London and
North-Western Railway Company (Rates and
Charges) Order Confirmation Act, 1891, s. 5,
empowered the company to charge a trader
a reasonable sum by way of addition to the
tonnage rate for the detention of trucks
beyond such period as should be reasonably
necessary for enabling the consignee to take
delivery of the goods, and provided that any
difference arising under the section should be
determined by an arbitrator : — Held, that the
only case in which an action can be brought
before arbitration for the recovery of such
charges is a case where the defendant has
agreed to the demand, but has refused to pay.
Where this cannot be established the case
must be treated as one in which a " difference "
has arisen, and must be determined by an
arbitrator in accordance with the provisions of
section 5. Held, further, that where there has
been an agreement by the defendant to pay
the charges demanded, the Court has no juris-
diction to enquire into their reasonableness.
London and North -Western Railwatj v. Jones,
84 L. J. K.B. 1268; [1915] 2 K.B. 35;
113 L. T. 724— D.
London and North-Western Railway v.
Donellan (67 L. J. Q.B. 681; [1898] 2 Q.B. 7)
and Midland Railway v. Loseby (68 L. J.
Q.B. 326; [1899] A.C". 133) followed. London
and North-Western and Great Western Joint
Railways v. Billington, Lini. (68 L. J. Q.B.
162; [1899] A.C. 79), considered. 7b.
Detention of Railway Company's Wag-
gons.]— Where corn was conveyed in a railway
company's waggons a period of two clear days
(terminating at 6 p.m. on the second day, or
if a Saturday at 1 p.m.) after the notice of
arrival at the station, exclusive of the day
of arrival and of holidays, was held to be a
reasonable time with which delivery should
be taken, after which demurrage should accrue
at the rate of 1,9. (id. a day per waggon and
3d. a day per sheet. The time allowed for
unloading coal is not a precedent for other
traffic. Nortli Eastern Railway v. Ferens,
15 Ry. cV Can. Traff. Cas. 17— Ry. Com.
Reasonable Free Time for Use of
Waggons before and after Conveyance.] — The
applicants' cual was loaded at North Wall,
Dublin, from the ship's side into waggons
of the defendant railway company upon the
sidings of another railway company. The
loaded waggons were weighed on the said
sidings, and the weigh notes given to the
applicants. Considerable detention having
taken place in the dispatch of the said
waggons to their destinations, the defendant
railway company made a charge for demur-
rage, to which the applicants objected. Delay
also took place in unloading the said waggons
at their points of destination, which were
situated in sparsely populated districts where
the consignees were small farmers and small
tradesmen living at remote distances from
the railway, and the defendants had in such
cases also made a charge for demurrage, to
which objection was taken : — Held, that a
period of one clear day after the day on
which the coal had been loaded in Dublin —
the loading to be regarded as completed when
the loaded waggons were weighed and the
weigh notes given to the applicants — was a
reasonable free time for the use of the waggons
before conveyance, and that a period of three
days reckoned from 6 a.m. of the day after
receipt of notice by the consignee of arrival
of the waggons was a reasonable free time
to take delivery and unload the trafiic,
Sundays, Feast Days, and the usual public
holidays excepted; and, further, that at the
expiration of the above periods a charge of
Is. 6d. per waggon per day was reasonable.
Wallace v. Midland Great Western Railway,
15 Ry. & Can. Traff. Cas. 70— Ry. Com.
Undue Preference — Goods Carried by Rail-
way Partly by Land and Partly by Sea —
Competition with other Carriers by Sea —
Through Rates — Rebates not Entered in Rate
Book — Statement in Rate Book of Sea Pro-
portion of Through Rate.] — The applicants
were carriers by sea from Dublin to Man-
chester, the goods being forwarded to and
from various inland towns in England by the
defendants" railway. The defendants also
carried goods by their own steamers from
Dublin to Holyhead, and thence by their rail-
way to the same inland towns in England at
through rates w^hich were fixed by agreement
between the carriers at the English and Irish
Traffic Conference. The applicants when they
commenced business in 1897 carried goods to
certain inland towns at rates lower than the
defendants' through rates. The defendants,
in order to meet the competition of the appli-
cants, granted rebates, which were not entered
in the defendants' rate books, to their cus-
tomers in respect of the traffic from Dublin
to those inland towns, with the result that the
railway portion of the through rate — namely,
the portion from Holyhead to the various
inland towns — was, relatively to distance,
lower per ton per mile than the rate from the
Manchester Docks to those inland towns. The
defendants, in order to comply with sub-
section 5 of section 33 of the Railway and
40
1251
RAILWAY.
1252
Canal Trafi&c Act, 1888, which requires a
railway company that carries partly by land
and partly by sea to state in their rate books
kept at the port used by the railway company
the proportion of the through rate appropriated
to carriage by sea, entered the following note
in their rate book kept at Dublin : " The sea
proportion of rates in this book between Dublin
and English stations is represented by a mileage
share as for seventy miles of the throughout
distance "; but no entry was made in the rate
book kept at the port of Holyhead : — Held,
that the defendants had committed a breach of
section 14 of the Regulation of Railways Act,
1873, in not entering in their rate books the
rates actually charged ; that the fact that the
defendants had in effect reduced their rates in
order to meet the competition of the applicants
did not amount to an undue preference of
themselves, even though the charge per mile
from Manchester was higher than the charge
per mile from Holyhead, because a local rate
cannot be compared with a portion of a through
rate for the purpose of establishing a case of
undue preference ; that the statement in the
rate book kept at Dublin as to the sea propor-
tion of the through rate was a sufficient com-
pliance with sub-section 5 of section 33 of the
Railway and Canal Traffic Act, 1888, and that
it was not necessary that the entry should also
be made in the rate book kept at Holyhead.
Dublin and Manchester Steamship Co. v.
London and North -Western Railway, 83 L. J.
K.B. 571; [1914] 2 K.B. 192; 108 L. T. 122;
28 T. L. R. oil: 15 Rv. & Can. Traff. Cas. 88
— Ry. Com.
Rebate not Published in Rate Book —
Guarantee as to Amount of Traffic. i — Where
trustees for the control of a river navigation
grant a rebate off their published rates for
dock services to a firm of carriers on condition
of their guaranteeing to bring a minimum
annual quantity of traffic into the trustees'
docks, although such carriers had for a con-
siderable number of years brought in an
amount of traffic largely in excess of the
guarantee, and where no opportunity is given
to competitive carriers to give a similar
guarantee, the grant of such rebate amounts
to an undue preference and cannot be justified.
Anderton Co. v. River Weaver Trustees,
14 Ry. & Can. Traff. Cas. 136— Ry. Com.
Special Agreement for Purchase by Rail-
way Company of Private Railways — Con-
sideration Partly Cash, Partly Services either
Gratuitous or at Rates Lower than those
Charged to other Persons — Public Policy —
Ultra Vires — "Difference in treatment" —
Justification by Agreement." — The S. Co. were
in 18R6 the owners of two ironworks and three
collieries which were connected by about 4J
miles of private railways and sidings. The
defendants were authorised by an Act passed
in 1865 to acquire these private railways " by
compulsion or agreement." An agreement
was entered into in 1866 whereby the defen-
dants purchased the private railways and
sidings from the S. Co. By this agreement
the defendants, besides paying 29.788L as con-
sideration money, covenanted as part of the
consideration to perform on the purchased
property the work previously done by the
vendors in part gratuitously and in part at
certain specified rates per ton, which rates
were very much lower than those charged to
other persons. The applicants complained
that the work done by the defendants for the
S. Co. under the agreement constituted an
undue preference of that company. The Rail-
way and Canal Commissioners held that,
although a mere inequality in charge raised a
presumption of undue preference, yet that pre-
sumption might be rebutted, and that in the
present case the agreement of purchase, which
was admitted to be fair and bona fide at the
time it was made, explained and accounted for
the difference of treatment, and that there was
therefore, under the circumstances, no undue
preference of the S. Co. : — Held, that the
agreement was not invalid either on the ground
of public policy or as being ultra vires, and
that, the question of the validity of the agree-
ment being the only point upon which an
appeal lav, the decision of the Commissioners
(78 L. J." K.B. 214; [1909] 1 K.B. 486) could
not be disturbed. Holywell Iron Co. V. Mid-
land Raihcay, 79 L. J. K.B. 460; [1910]
1 K.B. 296; 101 L. T. 695; 14 Ry. & Can.
Traff. Cas. 1 ; 26 T. L. R. 110— C. A.
Sea Competition — Rates Justified.] — The
applicants complained of an undue preference
alleged to be shewn by the defendants to cer-
tain trade competitors of the applicants at and
in the neighbourhood of Swansea, in that the
same rates were charged both to the applicants
and to such competitors for the conveyance of
goods to certain common points of destination
notwithstanding that the applicants were con-
siderably nearer such destination. The defen-
dants alleged that the rates complained of
were justified on the ground of competition by
sea : — Held, that such rates were justified
where actual effective sea communication
existed, but that in the case of the rates from
Swansea to Derby, Crewe, and Leeds, an
undue preference had been proved. Muntz's
Metal Co. v. London and North-Western
Railway, 14 Ry. & Can. Traff. Cas. 284—
Ry. Com.
Higher Rate — Justification.] — "Where a
railway company charged higher rates to one
of the applicants' gasworks than they did to
another, — Held, that the higher rate was
justified by there being no railway competition
at that works. Birmingham Corporation v.
Midland Railway, 101 L. T. 920; 14 Ry. &
Can. Traff. Cas. 24; 26 T. L. R. 46— Ry. Com.
With regard to the reasonableness of times
and charges, the point to be considered is the
character of the act to be performed, and if
such act is incidental to the production and
tender of the goods it must be paid for, but
if it is after such production it is covered by
the conveyance rates. North British Railway
V. Coltness Iron Co., 14 Rv. & Can. Traff. Cas.
246— Ry. Com.
What is a reasonable time for demurrage
and siding-rent cases considered. 75.
" Detention " in section 5, sub-section 4 of
the schedule to the Rates and Charges Order
Acts, 1892, means " detention not due to the
performance of acts which the railway com-
1253
RAILWAY.
1254
pany has to perform as carriers, nor to the
perforniance of acts necessary to enable the
consignor or consignee to give or take delivery
— such giving and taking delivery not being
the same as loading or unloading." lb.
A railway company ought not to render
accounts to a trader containing charges for
all detentions, no matter how caused, thereby
leaving him with the onus of pointing out any
error, but should only charge him in respect
of those detentions for which the railway
company are entitled to recover. lb.
A trader is not entitled to average the times
during which waggons are detained by him,
nor to add together the free time allowed both
before and after conveyance, inasmuch as he
is not entitled to keep a waggon for the whole
of the free time, his duty being to discharge it
with all reasonable dispatch. 7b.
Waggon Hire.] — The applicants com-
plained of an alleged undue preference given
to certain trade competitors, in that the appli-
cants were charged higher rates for waggon
hire than their competitors in respect of similar
traffic : — Held, that waggon hire was an
independent service, and the alleged difference
in treatment, having been proved, must be
redressed. Chance d- Hunt v. Great Western
Railway, 15 Ry. & Can. Traff. Cas. 241—
Ry. Com.
Agreement Binding Tenants of Railway
Company to Consign by One of Two Com-
peting Lines.] — The applicants' line and the
G. N. line each formed with the defendants'
line a continuous line of railway from certain
collieries to stations on the defendants' line,
and were in competition with each other. The
through rates by each were equal, but the
apportionment as to the traffic coming over the
G. N. line was the more favourable to the
defendants. The G. N. Co. handled traffic in
as convenient a manner as did the applicants.
The defendants let land at the above stations
for use as coal wharves, imposing and enforc-
ing on each of their tenants as part of the
terms of letting a condition that, the rates
being equal, traffic consigned to these wharves
should travel over the G. N. route : — Held,
that this did not constitute an undue and un-
reasonable preference of or advantage to the
G. N. Co., and did not deprive the applicants
of reasonable facilities for conveying their
traffic within the meaning of section 2 of the
Railway and Canal Traffic Act, 1854. London
and 'North-Western Raihoay v. South-Eastern
Railway, 80 L. J. K.B. 484; [1911] 1 K.B.
534; 104 L. T. 349; 14 Ry. & Can. Trail. Cas.
165; 27 T. L. R. 172— Ry. Com.
Agreement Fixing Rates — Competitors.!
— The respondents, a railway company, in
accordance with a practice of long standing,
performed certain services gratuitously for
traders at Hull. The applicants, who were
traders at Selby and were competitors of the
Hull traders, made an agreement with the
respondents, by which they obtained from the
respondents a siding, and "the rates for traffic
to and from the siding were ascertained. At
the time of the agreement the applicants knew
of the practice at Hull. On an application for
an order that the respondents should desist
from giving an undue preference to the Hull
traders, — Held, that, in view of the agreement,
the complaint was not as to rates, but as to
treatment, and that on the facts there was no
undue preference. Olympia Oil and Cake Co.
V. North -Eastern Railway, 15 Ry. & Can.
Traff. Cas. 166; 30 T. L. R. 236— Ry. Com.
Discovery — Interrogatories.] — The appli-
cants alleged an undue preference by the
defendants of the town of G. The defendants
denied that there was any undue preference.
They said that if the rates from G. were
lower, it w-as owing to the existence of water
competition at G., and they further said that
the rates charged were necessary in the in-
terests of the public. On an application by
the applicants for particulars and discovery,
and for leave to administer interrogatories
enquiring whether traders in G. had not from
time to time before the application sent goods
over the defendants' lines, and whether the
rates charged to them were not the rates now
complained of, — Held, that an order should be
made for particulars of public interest and the
discovery of communications and complaints
in regard to the rates, but that an order for
interrogatories should not be made until the
applicants gave specific instances of the undue
preference of which they complained. Clayton
d Shuttleworth v. Great Central Railway.
29 T. L. R. Ill— Ry. Com.
Discovery by Applicants before Delivery of
Particulars of Application.] — Upon a complaint
that the defendant railway company were
unduly preferring certain trade competitors
of the applicants by carrying their goods at
lower rates than those charged to the appli-
cants, an order was made by the Registrar
that the applicants should be precluded at
the hearing from giving evidence of specific
consignments by themselves and their said
competitors unless six weeks before the
hearing they delivered to the defendants
particulars identifying such specific consign-
ments. Before any such particulars were
delivered, a second order was made by the
Registrar that the railway company should
file an affidavit, stating what documents were
or had been in their possession as from a
certain date relating to the consignment of
the said competitors' traffic to certain places
mentioned in the application : — Held, that the
application for discovery by the applicants
was premature, and that they first ought to
make their case by alleging specific instances
in respect of which they claimed relief, in
support of which they then could have dis-
coverv. General Electric Co. v. Great
Western Railway, 15 Rv. & Can. Traff. Cas.
53— C. A.
Measure of Damages.] — Where appli-
cants have proved a case of undue preference
the damages they are entitled to recover from
the railway company are such damages as they
have actually sustained. Prima facie, these
are the excess charges which the applicants
have actually paid, but the railway company
may shew that those do not represent the
actual damage arising directly from the wrong
1255
KAILWAY— RATES AND RATING.
1256
done. Oiance it Hunt v. Great Western
Railway, 15 Ry. & Can. Traff. Cas. 241;
29 T. L. R. 483— Ry. Com.
3. Application under Cheap Trains Act.
Application for Additional Workmen's
Trains.] — In considering an application under
the Cheap Trains Act, 1883, for an order that
additional workmen's trains should be run,
the Railway and Canal Commissioners have to
take into account, not only what the workmen
can afford to pay, but also the circumstances
of the railway company, the cost of running,
and the cost of the construction and main-
tenance of the line and stations. London
Count]! Council v. Great Eastern Railway,
14 Ry. & Can. Traff. Cas. 224 ; 9 L. G. R. 1071 ;
75 J. P. 301 ; 27 T. L. R. 317— Ry. Com.
4. Other Matters.
Reference to Registrar.] — The Railway Com-
mission Court has no express jurisdiction to
order a reference to the Registrar to determine
any question of fact — for example, as to what
is " similar traffic." Chance if Hunt v. Great
Western Railway, 15 Ry. & Can. Traff. Cas.
241— Ry. Com.
Upon a reference to the Registrar there is
strictly no right of appeal from his findings to
the Railway Commissioners, such an enquiry
being in the nature of an enquiry by the Court
itself. The remedy is either to appeal to the
Court of Appeal or to apply to the Commis-
sioners under section 18, sub-section 2 of the
Railway and Canal Traffic Act, 1888, to review
or rescind, or vary the order directing the
reference. lb.
Power of Registrar to Award Costs on Inter-
locutory Applications.] — The Registrar of the
Railway and Canal Commission Court has
power to award costs on an interlocutory
application, as the delegation to the Registrar
by the Commissioners under rule 53 of the
Railway and Commission Rules, 1889, of their
authority to deal with interlocutory applica-
tions was an absolute delegation, and carried
with it the same power as that conferred upon
the Commissioners themselves of dealing with
the costs of any interlocutory application.
Smith, Stone if Knight, Lim. v. Londo7i and
North-Western Railway, 83 L. J. K.B. 1690;
[1914] 3 K.B. 1195; 111 L. T. 1117;
15 Ry. & Can. Traff. Cas. 321 ; 30 T. L. R. 645
— Ry. Coin.
I. SALE OF AND EXECUTION AGAINST.
See also Vol. XL 1968.
Sale of Whole Permanent Way Material —
Ultra Vires.] — A railway company, which had
constructed its line under statutory powers,
held not entitled to sell tlie rails, bridges, and
other materials forming its whole permanent
way, although it was financially impossible
for it to continue to work the undertaking.
Ellice V. hwerqarry and Fort Augustus
Railway. [1913] S. C. 849- Ct. of Sess.
Semble, that different considerations would
arise in the case of a company which proposed
only to sell the materials of an unremunerative
branch line which was no longer in use. 76.
Receiver and Manager of Undertaliing —
Application by Assignee of Judgment Credi-
tor.]— Under section 4 of the Railway Com-
panies Act, 1867, a person to whom a judg-
ment against a railway company has been
assigned may, without joining his assignor,
apply for the appointment of a receiver and
manager of the company's undertaking.
Freshwater, Yarmouth, and Newport Railway,
In re, 57 S. J. 593; 29 T. L. R. 568— Eve, J.
RAPE.
See CRIMINAL LAW.
RATES AND RATING.
I. Poor Rates and Rates in General.
A. Persons and Property Liable.
1. Owners and Occupiers in General,
1256.
2. Crown, Government, and Public
Property, 1259.
3. Sewers and Sewage Works, 1260.
4. Places of Divine Worship, 1262.
5. Cemeteries, 1262.
6. Canals, 1262.
7. Waterworks, 1263.
8. Licensed Premises, 1264.
9. Golf Course, 1265.
10. Bathing Staging, 1265.
11. Railways, 1265.
12. Harbours, 1267.
13. Docks and Wharves, 1267.
14. Statutory Exemptions, 1267.
B. Proceedings.
1. Distress, 1268.
2. Appeal against Rates, 1269.
II. County Rates, 1270.
III. Rates under Public Health Acts, &c.
— See Local Government.
IV. Church and Chapel Rates. — See
Ecclesiastical Law.
I. POOR RATES AND RATES IN
GENERAL.
A. Persons and Property Liable.
1. Owners and Occupiers in General.
See also Vol. XL 1562, 1973.
Liability of Owner — Dwelling House wholly
Let Out in Apartments not Separately Rated
— Enactment Applicable "in all boroughs" —
Parliamentary Borough Coming into Existence
Subsequently to Enactment.] — The provision
in section 7 of the Representation of the People
1257
RATES AND RATING.
1258
Act, 1867, that " Where the dwelling house
or teneruent shall be wholly let out in apart-
ments or lodgings not separately rated, the
owner . . . shall be rated in respect thereof,"
is not limited in its application to boroughs
in existence at the date of the passing of the
Act, but extends also to boroughs from time
to time coming into existence after that date.
Consequently, where a dwelling house is wholly
let out in apartments not separately rated,
even though such dwelling house be situated
in a Parliamentary borough which did not
become such until after 1867, the owner is
rateable in respect thereof under the above
provision of the Act of 1867, and he is accord-
ingly liable to the full amount of the rate
without being entitled to any commission or
allowance under the Poor Eate Assessment
and Collection' Act, 1869, or otherwise. Rex
V. Roberts; Battersea Borough Council, Ex
parte, 83 L. J. K.B. 146 ; [1914] 1 K.B. 3S9 ;
109 L. T. 466; 77 J. P. 40-3; 11 L. G. R. 913;
57 S. J. 644— C. A.
West Ham ChurcJuoardens v. Fourth City
Mutual Building and Investment Society
(61 L. J. M.C. 128; [1892] 1 Q.B. 654) con-
sidered and observations disapproved. White
v. Islington Borough Council (78 L. J. K.B.
168; [1909] 1 K.B. 133), observations ex-
plained. 7b.
" Dwelling house or tenement . . . wholly
let out in apartments or lodgings " — One Room
in House Let as Office or Workshop — Remain-
der Let to Separate Tenants as Dwellings —
Payment of Rates by Owner Subject to Allow-
ance— Surcharge of Allowance.] — Two houses
in a Parliamentary borough were let out in
different rooms which were not separately
rated at the date of the passing of the Repre-
sentation of the People Act, 1867. In one
house a room was used as a workshop, and in
the other one was used as an office ; the re-
maining rooms in each house were let to
separate tenants and used as dwellings : —
Held, that neither house was " wholly let out
in apartments or lodgings " within the excep-
tion clause to section 7 of the Representation
of the People Act, 1867, so that the owmers
of such houses were not liable to be rated
instead of the occupiers ; and consequently
that the local authority were entitled under
section 3 of the Poor Rate Assessment and
Collection Act, 1869, to make agreements with
the owners to receive the rates in respect of
such houses from them subject to an abate-
ment, the owners agreeing to become liable
for the payment of the rates assessed in
respect of the hereditaments, w-hcther occupied
or not. Rex v. Roberts : Stepney Borough
Council, Ex parte, 84 L. ,T. K.B. 1.577: []9ir)]
3 K.B. 313 ; 13 L. G. R. 1172 ; 31 T. L. R. 485
— C.A. Affirming. 112 L. T. 164 ; 79 J. P. 94
— D.
Flats Separately Rated.] — Certain blocks of
flats, cacli of wli it'll was self-contained and
had its front door opening on to a common
staircase, were owned by the appellants,
whose servants cleaned and lighted the stair-
case and worked the lifts. The tenant of each
of the flats was entered on the valuation list
as the rateable occupier of his flat : — Held,
following Western v. Kensington Assessment
Committee (76 L. J. K.B. 790; [1907] 2 K.B.
323), that the flats were houses or buildings
let out in separate tenements within the foot-
note to Schedule III. of the Valuation
(Metropolis) Act, 1869, and therefore that the
assessment committee could allow a larger
proportionate deduction from the gross value
to ascertain the rateable value than the maxi-
mum fixed by Schedule III. Consolidated
London Properties v. Marylebone Assessment
Committee, 76 J. P. 478; 10 L. G. R. 1058
— D.
Rateability of Tenant of House in Respect
of Wall Used by Landlord as an Advertising
Station.] — The respondent occupied a house at
a rack rent, but by the terms of his agreement
the use of the outside wall on one side was
retained by his landlord to let as an advertise-
ment or bill-posting station, and the respon-
dent was to give free access to the garden
of the premises to men sent to post bills or
advertisements. The rent or payment for such
use of the wall was received by the landlord,
and the respondent received no remuneration
in respect of it, and had no option or interest
in the letting of the wall. The respondent's
name having been inserted in the rate book
as the person liable under section 4 of the
Advertising Stations (Rating) Act, 1889,
liable to be rated in respect of the advertising
station, — Held, that as the whole of the
premises were occupied by the respondent for
purposes other than advertising, he was rightly
rated under section 4 as the occupier of the
premises, including the side wall, although the
advertising station increased the value of the
premises, and the landlord received the profits
derived from it. Letoisham Corporation v.
Avey, 76 J. P. 343; 10 L. G. R. 553— D.
Demise of Vaults at Docks — Wine Mer-
chants — Retention of Control by Lessors —
Liability of Lessees to be Rated.] — The Mer-
sey Docks and Harbour Board in pursuance of
their statutory powers demised to a firm of
wine merchants certain vaults, together with
a portion of the quay floor at their docks, to
be used as a bonded warehouse. Upon the
demised premises there was certain machinery
which was used for the working of cranes and
lifts belonging to the board, the working of
which made it necessary that employees of
the board should go down into the vaults
several times a day and stay there for con-
siderable periods, and the lease accordingly
provided that the demised premises should
be so worked by the lessees as not to cause
any interference with or obstruction to the
general working of the dock estate, and that
the servants of the board should at all reason-
able times have free access thereto for the
purposes of such general working : — Held.
that the terms of the lease and the nature of
the demise were consistent only with exclu-
sive occupation being given to the lessees for
the purposes of their business, with such a
control by tlie board as should prevent their
duties and obligations from being interfered
with, and that the granting by the board of
such an exclusive occupation was not ultra
vires. Young v. Liverpool .Assessment Com-
1259
RATES AND RATING.
1260
mittee, 80 L. J. K.B. 778; [1911] 2 K.B.
195; 104 L. T. 676; 75 J. P. 233; 9 L. G. R.
366— D.
2. Grown, Government, and Public Property.
See also Vol. XI. 1593, 1980.
Premises Acquired by County Association for
Purposes of Territorial Forces — Premises Occu-
pied by Officer for Purposes of his Duties.] —
Premises bona fide acquired by a county
association under the Territorial and Reserve
Forces Act, 1907, for the purposes of the
Territorial Forces, are premises acquired by
the Crown for Crown purposes, and as long as
an officer, by arrangement with the county
association, resides therein for the purpose
of his duties under the Act of 1907, such
premises are, as being used for Crown pur-
poses, exempt from rating. Where, in such
circumstances, the name of the officer in actual
occupation of the premises has in fact been
inserted in the rate book, the objection that
the premises are exempt from rateability may
be taken before the Justices on an application
for a distress warrant. Wiion v. Thomas;
Lambert v. Same: Burrows v. Same, 80 L. J.
K.B. 104; [1911] 1 K.B. 43: 103 L. T. 730;
75 J. P. 58; 8 L. G. R. 1042; 27 T. L. R.
35— D.
Sergeant-Instructors — Official Residences.]
— It is intra vires a county association formed
under the Territorial and Reserve Forces Act,
1909, to hire houses for the purposes of official
residences for non-commissioned officers in the
regular army who are acting as sergeant-
instructors ; and the sergeant-instructors resid-
ing in such houses will not be liable to be
rated in respect of them. Decision of the
Divisional Court in Wixon v. Thomas ;
(80 L. J. K.B. 104; [1911] 1 K.B. 43)
approved and followed. Wixon v. Thomas;
Lambert v. Thomas; Burroics v. Thomas.
81 L. J. K.B. 686; [1912] 1 K.B. 690;
IQS L. T. 312 ; 76 J. P. 153 ; 10 L. G. R. 267 ;
28 T. L. R. 232— C. A.
Buildings Held by Statutory Body and
Occupied for Public Purposes.] — A statutory
body of commissioners created for the purpose
of holding buildings in Glasgow, which were
used for certain public purposes — namely.
Justiciary Courts, Sheriff Courts, and Justice
of the Peace Courts, — Held, to be exempt
from assessment both for owners' and occu-
piers' rates, except with regard to certain
portions of the buildings which were let to
the county council and for which rents were
paid; and that in respect of these portions,
seeing that they were held as mere invest-
ments, the commissioners were liable for the
owner's rates. Coomber v. Berks (Justices)
(53 L. J. Q.B. 239; 9 App. Cas. 61) followed.
Glasgow Court House Commissioners v.
Glasgow Parish Council, [1913] S. C. 194—
Ct. of Sess.
Public Parks Dedicated by Statute to Public
Use.] — Public parks owned and maintained by
a corporation and yielding no profit fall to be
entered in the valuation roll not at a merelv
nominal figure, but at the rent which a hypo-
thetical tenant might be expected to give for
them in their actual condition, irrespective of
any limitations on their use in the hands of
their present proprietors. Edinburgh Parish
Council V. Edinburgh Assessor ([1910] S. C.
823) overruled. Lambeth Overseers v. London
County Council (66 L. J. Q.B. 806; [1897]
A.C. 625) distinguished. Glasgow Parish
Council V. Glasgow Assessor, [1912] S. C. 818
— Ct. of Sess.
Houses and offices in, and used by officials
of, the public park are to be treated with the
park as a uyiU7n quid. lb.
Public Buildings in Public Parks — Museums
— Official Residence of Superintendent.] — The
public parks of Glasgow were severally en-
tered in the valuation roll at a nominal value
of 11. each per annum, as being dedicated by
statute to public uses, and included in that
nominal value, as adjuncts of the parks in
which they were situated, were — first, certain
municipal museums, art galleries, and a winter
palace; secondly, a house used as the official
residence of the superintendent of all the city
parks : — Held, first, that the museums, art
galleries, and winter palace fell to be sepa-
rately entered at their fair annual value in
respect that, though no charges for admission
were actually made, the corporation was
entitled to levy reasonable charges ; and
secondly, that the superintendent's residence
did not fall to be separately entered, but was
properly to be regarded as a. unum quid with
the park in which it stood, and included in
the relative nominal value of 11. per annum.
Glasgow and Govan Parish Councils v.
Glasgow Assessor, [1911] S. C. 988— Ct. of
Sess.
Method of Valuation — Comparison of
Rentals.] — The proper method of valuing a
large building centrally situated in Glasgow,
the property of, and occupied as offices by, the
Glasgow Parish Council : — Held, to be by a
comparison with the rentals of premises of a
similar character in the neighbourhood ; and
that the mere fact that the owners and occu-
piers were a statutory body, in whose place
it might not be possible to find a similar
tenant, was not a reason for adopting the
" contractor's principle " of valuation. Glas-
goio Parish Council v. Glasgow (Assessor),
[1914] S. C. 6.51— Ct. of Sess.
Observed. that the "contractor's principle"
can only legitimately be adopted if the method
of comparison is wholly inapplicable or for
the purpose of checking a valuation otherwise
arrived at. lb.
3. Sewers and Sewage Works.
See also Vol. XL 1602, 1983.
Sewers.] — Sewers owned and occupied by a
statutory body of commissioners fall to be
entered in the valuation roll at the yearly rent
which a hypothetical statutory tenant would
give for them. That rent is represented by
a sum made up by taking 3^ per cent, on their
total capital cost and adding thereto, in addi-
tion to landlord's rates and the average annual
charge which would fall on a landlord for
1261
RATES AND RATING.
1262
maintenance, such a percentage on the cost of
the sewers (as distinct from land and way-
leaves) as, paid annually into a sinking fund,
would provide for their complete renewal in
one hundred years. In calculating the capital
cost of sewers constructed by commissioners
under their statutory powers, lands purchased
by them are to be taken at the full prices paid,
and there also fall to be included (diss. Lord
Salvesen) the legal and engineering expenses
incurred in acquiring the lands, but not the
Parliamentary expenses of obtaining the Act
nor (diss. Lord Cullen) sums paid as com-
pensation for disturbance. The capital cost of
existing sewers acquired and utilised is to be
taken as the additional sum which would have
had to be expended on new sewers by the
commissioners had the existing sewers not
been available. Water of Leith Sewerage
Commissioners v. Midlothian (Assessor),
[1914] S. C. 664— Ct. of Sess.
Qumre (per Lord Johnston), whether a
hypothetical sinking fund is an item which
ought to enter into the valuation of subjects
of such a permanent nature as public sewers.
76.
Sewers Partly AboYe and Partly Below
Ground — Payment for Right of Entry.] —
Sewers, whether overground or underground,
are rateable wherever the occupation of them
is " valuable " within the meaning of the
decisions on the law of rating. Dictum of
Lord Herschell, L.C., in London County
Council V. Erith Overseers (63 L. J. M.C. 9;
[1893] A.C. 562) criticised. West Kent Main
Sewerage Board v. Dartford Assessment Com-
mittee, 80 L. J. K.B. 805; [1911] A.C. 171;
104 L. T. 357; 9 L. G. R. 511: 75 J. P.
305; 55 S. J. 363— H.L. (E.)
Sewage Farm — Evidence of Possible Alter-
native and Cheaper Scheme of Sewage Dis-
posal.]— On an appeal to quarter sessions by
the occupier of a sewage farm against a poor
rate on the ground that the farm was over-
assessed, the appellant contended that the
possibility of substituting another and cheaper
system of sewage disposal, as compared to the
existing system, should be taken into considera-
tion, and that the cost and capital value of
the existing land and works was no evidence
of their rateable value. He produced evidence
that the bacterial system was now in greater
favour than the broad irrigation system in
use at the farm, and would afford a great
saving by needing a much smaller area of
land, and b}' being carried out by gravitation
instead of by pumping. But he admitted that
the sewerage l)oard had never fornmlated the
suggested alternative scheme and that the
figures produced were founded upon approxi-
mate estimates only. The quarter sessions
were of opinion that the evidence as to the
alternative scheme was too uncertain for them
to act on, and dismissed the appeal -.^Held,
that although evidence as to the non-existent
alternative scheme was not inadmissible, the
quarter sessions, having heard and considered
that evidence, were not bound by it, but could
properly come to the conclusion that it was
too uncertain for them to act upon it as shew-
ing the true amount value of the hereditament.
Hall V. Seisdon Union, 77 J. P. 17 ; 11 L. G. R.
48— D.
4. Places of Divine Worship.
See also Vol. XI. 1612, 1984.
Disused Wesleyan Chapel.] — The owners of
a building, which had formerly been a
Wesleyan Chapel, claimed exenjption from a
provisional apportionment of the estimated
expenses of making up the adjoining street,
on the ground that it was a pla-ce appro-
priated to public religious worship, and for
the time being by law exempt from poor rates,
within the terms of section 16 of the Private
Street Works Act, 1892. The building had
never been rated to the poor rate, and for the
past five years had been used as a Sunday
school and for religious services, preachings,
and class meetings on week nights. A debat-
ing society met there once a week, and a
Rechabite society once a month ; a political
meeting had been held there, as well as " at
homes " in connection with chapel work, for
admission to which sixpence was charged, and
public entertainments, including a dramatic
representation, for which charges to the public
of one shilling and of sixpence were made : —
Held, that, having regard to the purposes for
which it had been used for the past five
years, the building was not used as a chapel
■ exclusively appropriated to public religious
worship "' so as to be exempt from poor rates
under section 1 of the Poor Rate Exemption
Act, 1833, and consequently to be exempt
from private street works expenses under
section 16 of the Private Street Works Act,
1892, notwithstanding that it had not in fact
been rated to the poor rate. Walton-leDale
Urban Council v. Greentcood, 105 L. T. -547;
75 J. P. 541 ; 9 L. G. R. 1148— D.
5. Cemeteries.
See also Vol. XI. 1612, 1984.
Cemetery Owned by Public Authority under
Statutory Powers.^ — A cemetery was owned
and carried on by a local authority under
statutory powers. Under the statute they had
power to sell lairs and to receive fees in
respect of interments, but the expenditure on
the cemetery as a rule exceeded the income : —
Held, that the cemetery had an annual letable
value in respect that the possession of it
enabled the local authority to discharge a
statutory duty, and accordingly that it should
be entered in the valuation roll at that value
and not at a merely nominal figure. Edinburgh
Parish Council v. Edinburgh Magistrates,
[1912] S. C. 793— Ct. of Sess.
6. Canals.
Sec aha Vol. XI. 1626, 1986.
Subjacent Coal Mines — Expenses of Prevcn-
i tion of Subsidence — Parochial Principle —
Distribution of Expenses.! — A canal passed
tlirough eighty-nine parishes and fourteen
unions, and in many of the parishes over
subjacent coal mines. 6,809 yards of the
1263
RATES AND RATING.
1264
canal were situated in the township of I.,
where there were very considerable coal
workings which, from time to time, caused
subsidences in the canal, towing paths, bridges,
locks, and culverts. In making the poor rate
and valuation list on which it was based for
the parish of I., the overseers and assessment
committee estimated the gross rental and
rateable value by assessing the portion of the
canal and towing path in the township as a
separate hereditament and allowing certain
deductions for the expense of maintenance,
but they refused to recognise as a deduction
permitted by section 1 of the Parochial Assess-
ments Act, 1836, the expenditure actually
incurred by the company in the maintenance
and dredging of the canal, the maintenance
of locks and bridges in the township and
repairs and prevention of damage caused by
subsidences : — Held, that the above expenses
claimed by the canal company as deductions
in the township of I. must be distributed
over their whole system, and could not be as
a whole debited to I., where the expenditure
had taken place. Leeds and Liverpool Canal
V. Wigan Union . 11 L. G. R. 634— D.
7. Waterworks.
See also Vol. XL 1632. 1987.
Gathering Ground for Reservoirs — Acquisi-
tion to Prevent Pollution of Water — Acts of
Occupation by Owner — Control — Plantations
and Nurseries on Gathering Ground.] — The
corporation of L. owned certain land which
was occupied by their reservoirs and works,
iind received into the reservoirs the water
which flowed from an adjoining gathering
ground. In order to prevent pollution of the
water flowing from it to their waterworks, the
corporation purchased the gathering ground,
which consisted of agricultural land and moor-
land. They thereupon demolished certain farm-
houses on the land, abolished certain rights
of pasturage and turf cutting, and limited the
user of the land to purposes of sporting and
afforestation. They planted a portion of the
land with trees, converted another portion into
nurseries, and let the sporting rights over the
land to a lessee for a term of years, but did
not exercise any other acts of occupation : —
Held, that the corporation were in rateable
occupation of the wliole of the land in question
— the moorland, plantations, and nurseries —
as a gathering ground, the use of the land by
them as a gathering ground for their com-
mercial gain, and the use thereof as a game
preserve as above described being sufficient to
turn their possession into beneficial occupation,
so as to render them rateable in respect of it.
Liverpool Corporation v. Chorley Assessment
Committee, 82 L. J. K.B. 555;' [1913] A.C.
197 ; 108 L. T. 82 ; 77 J. P. 18.5 ; 11 L. G. R.
182; 57 S. J. 263; 29 T. L. R. 246— H.L. (E.)
Order of Court of Appeal (81 L. J. K.B.
426; [1912] 1 K.B. 270) affirmed. 7b.
Land near River — Intake from River —
Special Fitness of Land — Increased Value —
Determination of Hypothetical Rent.] — In
assessing the rateable value of the property of
a waterworks company, consisting of a piece of
land near a river with a pumping station and
reservoirs thereon, an intake from the river
and an aqueduct connecting it with the land,
regard should be had not only to the cost
of the land and premises, but also to the
enhanced value arising from their special fit-
ness for the purpose for which they are used,
and in addition to a percentage on the cost a
percentage on that enhanced value should also
be included. No additional value should, how-
ever, be attributed to the premises by reason
of the fact that the waterworks company makes
an annual statutory payment to the conserva-
tors of the river for the right to take the water.
New River Co. v. Hertford Union (71 L. J.
K.B. 827; [1902] 2 K.B. 597) followed.
Metropolitan Water Board v. Chertsey Union,
84 L. J. K.B. 1823; 113 L. T. 216; 79 J. P.
360; 13 L. G. R. 692— C. A. Reversed,
32 T. L. R. 168— H.L. (E.)
Consideration of Rate of Interest at which
Occupier could Borrow Money.] — In assessing
the rateable value of the property of an owner
there is no principle of law which restricts
the percentage to be taken on the value of the
property to that of the interest at which the
owner can borrow money, though the latter
rate is a fact which may be considered in
arriving at the former. lb.
8. Licensed Premises.
Increased Licence Duty — Onus of Proof as
to Value.] — Tile appellant, who was proprietor
and occupier of licensed premises, claimed
reduction of the former valuation on account
of the increased licence duty imposed by the
Finance (1909-10) Act, 1910 -.—Held, that the
increase in the duty established a prima facie
case for reduction of the valuation, thus throw-
ing upon the rating authority the onus of
proving that the annual letting value had not
been diminished. Deards v. Edinburgh
Assessor, [1911] S. C. 918— Ct. of Sess.
Distillery — Increased Licence Duty.] —
Held, that the increased licence duty imposed
by the Finance (1909-10) Act, 1910, did not
fall to be taken into account in valuing a dis-
tillery, the circumstances of a distillery being
different from those of public-house premises.
North British Distillery Co. v. Edinburgh
Assessor, [1911] S. C. 927— Ct. of Sess.
Licensed Grocer's Premises.] — The princi-
ple laid down in Deards v. Edinburgh Assessor
([1911] S. C. 918) in the case of a public
house — namely, that the increased licence dutv
imposed by the Finance (1909-10) Act, 1910.
established a prima facie case for reduction of
the valuation, re-affirmed and applied to a
licensed grocer's shop, and the valuation re-
duced by half the amount of the increase of
the duty. Moyes v. Perth Assessor, [1912]
S. C. 761— Ct. of Sess.
Statutory Curtailment of Hours of Busi-
ness.]— Tlie curtailment of the hours during
which business premises may l)e open intro-
duced by the Temperance (Scotland) Act, 1913,
— Held, not per se to establish a prima facie
case for the reduction of the valuation of a
1265
RATES AND RATING.
1266
public house or throw upon the rating authority
the onus of proving that the annual letting
value of the premises had not been diminished.
Deards v. Edinburgh Assessor ([1911] S. C.
918) distinguished. Maxwell v. Galashiels
Assessor, [1915] S. C. 765— Ct. of Sess.
'.I. Golf Course.
Land Leased by Local Authority for Golf
Course — Lands Yielding no Profit.] — The
magistrates of a burgh, acting under statutory
powers, obtained a forty years'- lease of a piece
of ground at a rent of 523/., which they laid
out and maintained as a golf course for the
use of the inhabitants of the burgh. They
levied charges for playing golf thereon, but
these did not cover the cost of upkeep : — Held,
that the subjects fell to be entered in the
valuation roll at their fair annual value, and
not at a merely nominal figure. Edinburgh
Parish Council v. Leith Magistrates, [1912]
S. C. 812— Ct. of Sess.
in. Bathing Staging.
Occupation — Bathing Staging Erected on
Foreshore. J — The respondent was summoned
to shew cause why he should not pay a general
rate in respect of certain property described
in the rate book as " Foreshore used for
bathing and entertainment purposes near the
Oval, Cliftonville." By a lease the appellant
corporation gave the respondent certain
rights over the foreshore for the purposes
of bathing, and also gave him the right to
erect a permanent staging for that purpose
on the foreshore. On this staging the respon-
dent had dressing boxes, &c. The Justices
dismissed the summons, being of opinion that
the respondent was not in occupation of the
foreshore, but only had a monopoly for bath-
ing and letting chairs for hire on that
portion : — Held, tliat the respondent was in
occupation, not only of the staging, but also
of the foreshore upon which the staging stood,
and that the description in the rate book was
sufficient. Margate Corporation v. Pettman,
106 L. T. 104 ; 76 J. P. 145 ; 10 L. G. R. 147 ;
28 T. L. R. 192— D.
11. Railways.
See «/.sf; Vi'l. XI. V,r,i]. 1990.
TraflRc Agreement between Two Railway
Companies — Value of Line Apart from Agree-
ment.]— By an agreement l)etwepn the plain-
tiffs and the M. Railway, the traffic which
would otherwise have passed over a portion of
the appellant's line in a parish in the respon-
dent union was transferred to the M. Railway :
— Held, that in assessing the value of the
appellant's line in the respondent union the
quarter sessions were not precluded from con-
sidering the value of the line apart from the
special bargains between the two companies.
London and Nortli- Western Railway v. Thrap-
ston Uyiion, 107 L. T. 788: 77 J. P. 25;
10 L. G. R. 1067; 29 T. T.. R. 21— D.
Link Line of Railway — Line Worked at
Loss — Consideration of Extraneous Circum-
stances.]— The East London Railway was a
line without terminal stations, forming a link
between the lines of several railway companies
by whom it was leased under the East London
Railway Act, 1862, at a rent which was calcu-
lated on the gross receipts, but was not to be
less than 30,000L per annum. For the last
three years the working of the line had resulted
in a net loss apart from the rent payable under
the lease : — Held, confirming the decision of
the Divisional Court, that, in fixing the rate-
able value of the line for the purpose of the
quinquennial valuation list, quarter sessions
were justified in taking into consideration
extraneous circumstances such as the position,
connections, and accommodations of the line,
and in refusing to value it at a nominal sum.
East London Railway Joint Committee v.
Greenwich Assessment Committee; Same v.
Bermondsey Assessment Committee; Same v.
Stepney .Assessment Committee, 82 L. J. K.B.
297; [1913] 1 K.B. 612; 107 L. T. 805;
77 J. P. 153 ; 11 L. G. R. 265 ; 29 T. L. R. 171
-C.A.
Great Central Railway v. Banbury Assess-
ment Committee (78 L. J. K.B. 225; [1909]
A.C. 78) explained. North and South-Western
Junction Railway v. Brentford Assessment
Committee (-58 L. J. M.C. 95; 13 App. Cas.
592) applied. lb.
Joint Line — Feeder — No Profits — Contri-
butive Value — Basis of Assessment.] — The
appellants were two railway companies, and
they jointly owned a railway partly situated
in the parishes of Hammersmith and Kensing-
ton. The appellants earned no profit on the
line, but it had a contributive value as a feeder
to their systems. On an appeal against the
valuation of the line in these parishes quarter
sessions held that they were not entitled to
take into account the contributive value of
the line, that neither of the appellant com-
panies was a competitor for the occupation of
the line, that no other competitor would give
a rent sufficient to support the assessment
appealed against, and that the line must be
assessed solely with regard to the earnings
within the parishes, and they reduced the
assessment to a nominal figure : — Held, that
in the absence of special circumstances the
line was rateable on the annual value based
upon the actual profits earned by it, and not
on the value due to its increasing the profits
on other parts of the appellants' system, and
that as there was nothing in tlie facts to
require any special method of valuation the
assessment by quarter sessions must be
affirmed. Great We-^tern and Metropolitan
Railways v. Hammersmith .Assessment Com-
mittee: Same v. Kensington .Assessment
Committee, 85 L. J. K.B. 63; 59 S. J. 744;
31 T. L. R. 608— H.L. (E.) Reversing,
112 L. T. 10; 79 J. P. 57; 12 L. G. R. 1179
-C.A.
Coal in Owners' Waggons — One Route
Loaded — Returning Empty by Another — In-
clusive Charge — Gross Earnings.! — By the
(1. N. Kailway Co. iKates and Charges) Order
Confirmation Act, 1891, where merchandise is
conveyed m a traders' truck the company shall
not make any charge in respect of the return
1267
EATES AND RATING.
1268
of the truck empty, provided that it is returned
direct to the consignor. A portion of the gross
receipts earned by the appellants in a certain
parish was earned in respect of coal hauled
through the parish in owners' waggons, and
the waggons when empty had to be hauled
back to the place from which they had been
consigned without further payment. Most of
the waggons when empty were hauled back by
a different route, not passing through the parish
in question. Quarter sessions on an appeal
decided that the charges which the appellants
made for the conveyance of coal in owners'
waggons were made for the joint service of
hauling the waggons when full and hauling
them back when empty, and that the amount
of the actual gross earnings of the appellants'
railway in the parish from coal carried in
owners' waggons was to be arrived at by
making a deduction in respect of the return
of the waggons : — Held, that the quarter
sessions were right. Great NortheTn Railway
V. Huvslet Unioji, 105 L. T. 544; 75 J. P. 460;
9 L. G. R. 1-202-D.
12. Harbours.
See also Vol. XL 1646. 1988.
Dredged Channel in Open Sea.] — A channel
dredged by harbour commissioners outside the
entrance to their harbour, and below sea-
water mark, held not to be land and heritage
owned and occupied by the commissioners
within the meaning of the Lands Valuation
(Scotland) Act, 1854. Leith Docks Commis-
sioners V. Leith Magistrates, [1911] S. C.
1139— Ct. of Sess.
13. Docks and Wharves.
See also Vol. XL 1617, 1989.
Expenses Incurred in Respect of Property
Outside the Premises Rated — Shipbuilding
Yard.] — The tenants of a shipljuilding yard
adjoining a tidal navigable river incurred an
annual expenditure in dredging the river out- |
side the premises in their own occupation in j
order that yachts and boats should have access I
from the river to their wharves and jetties : — ;
Held, that such expenditure was not an i
" expense necessary to maintain " the premises
" in a state to command such rent " within
the meaning of section 1 of the Parochial
Assessments Act, 1836, and therefore could not
be allowed as a deduction under that section in
arriving at the rateable value of such premises.
White V. South Stoneham Union, 84 L. J.
K.B. 273; [1915] 1 K.B. 103: 112 L. T. 165;
79 J. P. 79: 13 L. G. R. 53— D.
14. Statutory Exemptions.
See also Vol. XL VV.)!',. 1996.
Exemption " from all taxes and assessments
whatsoever" — New Rate Subsequently
Authorised — Rate for Same Purposes as Old
Rate — General Rate — Consolidated Rate —
Police Rate.] — Section 51 of the statute
7 Geo. 3. c. 37 provided that certain lands
in the Citv of London reclaimed from the
river Thames under the provisions of that Act
should vest in the owners of the adjoining
land " free from all taxes and assessments
whatsoever." The consolidated rate was
created by the City of London Sewers Act,
1848, and the police rate by the City of London
Police Act, 1839. Both rates are, under sec-
tion 15 of the City of London (Union of
Parishes) Act, 1907, levied and collected as
one rate, termed the general rate. But this is
only done for convenience of collection, and the
two rates must be looked at separately : —
Held, that the consolidated rate and also the
police rate were substantially new assessments,
and that therefore the rates were not within
the exemption created by the statute 7 Geo. 3.
c. 37, s. 51, as the exemption created by that
statute only applied to taxes and assessments
in existence when that Act was passed or
others substituted for them. 51071 College v.
London Corporation (70 L. J. K.B. 369;
[1901] 1 K.B. 617) applied. Associated News-
papers, Lim. V. London Corporation (No. 2),
84 L. J. K.B. 1913; [1915] 3 K.B. 128;
113 L. T. 587 ; 79 J. P. 537 ; 13 L. G. R. 1011 ;
59 S. J. 545 ; 31 T. L. R. 432— C. A.
Decision of the Divisional Court (83 L. J.
K.B. 988; [1914] 2 K.B. 822) affirmed as to
the consolidated rate, but reversed as to the
police rate. lb.
B. Proceedings.
1. Distress.
See also Vol. XL 1699, 1997.
Previous Payment in Respect of Non-
existent Rate — Fraudulent Representation of
Assistant Overseer.] — The overseers of the
parish of H. had made a poor rate and a
special sanitary rate on June 16, 1910, for the
half-year ending the following September 30.
Their assistant overseer, one S., fraudulently
represented to the L. T. & S. Railway Co.,
who were ratepayers, that the rates had in
fact been made on April 7, 1910, and induced
them to send him on April 28 a cheque in
payment, drawn to his order for 496L 7s. 6d.,
which he indorsed and paid into his private
banking account. On April 30 S. drew a
cheque on his private account for 472i. 3s. 2d.,
which he paid (in order to cover his previous
defalcations) to the credit of several accounts
kept by the overseers at the bank. On
August 15. 1911, demands for the amounts due
under the rates of June 16, 1910, were served
on the railway company, which they refused
to pay. Upon the overseers applying for dis-
tress warrants, the Justices being of opinion
that the overseers had received the proceeds or
greater part of the proceeds of the cheque for
496L 7s. 6d., considered that they ought not
to issue distress warrants, and dismissed the
summonses : — Held, that the distress warrants
ought to have been issued, for there was no
evidence that the railway company had paid
the rates made on June 16, 1910, as there were
no such rates in existence when they paid the
496L 7s. Gd. to S. on April 28; that the pay-
ment was not an effective payment of rates in
advance to S., as assistant overseer, on account
of rates for the half-year ending September 30;
1269
EATES AND RATING.
1270
and the payment of 472/. 35. 2d. by S. to the
overseers on April 30 was not a payment under
the rate of June 16, but one he ought to have
made in respect of an earlier rate. Per
Avory, J. : An effective payment to an assis-
tant overseer would be a sufficient answer
without tracing the money as having been paid
by the assistant overseer to the overseers them-
selves, seeing that, though not the servant of
the overseers, he is the statutory officer
appointed to demand and collect rates.
Hornchurch Union v. London, Tilbury . and
Southend Railway, 107 L. T. 293; 76 J. P.
385; 10 L. G. R. 731— D.
Application for Distress Warrant — Claim to
Statutory Exemption — Jurisdiction of Justices
to Give Effect to Exemption.] — Where an
application is made to Justices for a distress
warrant for non-payment of rates, the Justices
have jurisdiction to entertain a defence raised
by the defendant that he ought not to be
rated at all by reason of some statutory exemp-
tion, or that if rated at all he ought not to
be rated for the full rateable value, even
though the facts necessary to raise such
defence are not admitted or are disputed. So
held by Bray, J., and Atkin, J.; Avory, J.,
dissenting. Whenman v. Clark, 84 L. J.
K.B. 825; [1915] 1 K.B. 548; 112 L. T. 730;
79 J. P. 252; 13 L. G. R. 347— D.
Section 289 of the Thames Conservancy Act,
1894, provides that " all lands buildings . . .
for the time being vested in the Conservators
in respect of the Thames above London Bridge
shall be exempt from all parochial charges
rates taxes assessments impositions and pay-
ments whatsoever "' : — Held, that a house and
grounds on the banks of the Thames in the
parish of Hampton Wick, transferred to the
Conservators of the river Thames by the
Corporation of London in 1857, which house
had been let, and the rent of which had been
applied by the Conservators for one or other
of the purposes of the river Thames, were
vested in the Conservators in respect of the
Thames above London Bridge, and were,
under section 289, exempt from parochial
charges irrespective of any purpose for which
the premises were occupied. Held, further,
that parochial rates did not include the general
district rate. lb.
2. Appeal against Rates.
See also Vol. XL 1714, 2001.
Appeal to Quarter Sessions — Gross Esti-
mated Rental — Finality of Figure Appearing
in Rate Book and Valuation List.]— The gross
estimated rental of a rateable hereditament as
it appears in the rate book and valuation list
in accordance with the Parochial Assessment
Act, 1836, s. 1, and schedule, and the Union
Assessment Committee Act, 1862, se. 14, 15, and
schedule, is final as against the rating autho-
rity, so that it is not competent to the Court
of quarter sessions, upon the ratepayer's
appeal from the assessment and rate, to admit
evidence tendered by the rating authority to
shew that the gross estimated rental has been
understated. The decision in Horton v.
Walsall Union (67 L. J. Q.B. 804; [1898]
2 Q.B. 237), laying down the above rule,
approved and applied. Hendon Paper Works
Co. V. Sunderland Assessment Committee,
84 L. J. K.B. 476; [1915] 1 K.B. 763;
112 L. T. 146; 79 J. P. 113; 13 L. G. R. 97
— C.A.
Semble, a ratepayer, who has come to an
agreement with the assessment committee for
the insertion in the valuation list of a conven-
tional figure for the gross estimated rental,
may by his conduct estop himself from relying
on the rule laid down in Horton v. Walsall
Union (67 L. J. Q.B. 804; [1898] 2 Q.B. 237).
76.
Appeal after Approval of Valuation List
— Under-assessment of a Third Party — Notice
of Objection to List — Notice Given to Third
Party More than Twenty-eight Days after
Deposit of List — Condition Precedent to
Hearing of Appeal.] — On an appeal by
a ratepayer to quarter sessions under
section 1 of the Union Assessment Cotu-
mittee Amendment Act, 1864, against a poor
rate, after the approval of the valuation Hat
in conformity with which the poor rate is
made, on the ground of the unfairness or
incorrectness in the valuation of hereditaments
in respect of which some third person is liable
to be rated, the notice of objection to such list,
the giving of which is a condition precedent
to the hearing of such appeal, may be given
by the appellant to such third person as well
as to the assessment committee at any time,
the provision in section 18 of the Union Assess-
ment Committee Act, 1862, requiring that the
notice of objection to the list shall be given to
such third person within twenty-eight days of
the deposit of the list, not being incorporated
in section 1 of the Act of 1864. Rex v. Bristol
(Recorder) ; Bristol WateriDorks Co., Ex parte,
82 L. J. K.B. 851; [1913] 3 K.B. 104;
109 L. T. 237 ; 77 J. P. 360; 11 L. G. R. 1023
— D.
Qucere, whether section 1 of the Act of 1864
imposes as a condition precedent to the hearing
of the appeal the giving of notice of objection
to the valuation list to any persons other than
to the assessment committee. lb.
Warrant of Distress and Levy — Appeal to
Quarter Sessions — Appeal against "Order"
of Court of Summary Jurisdiction] — An ap-
peal to quarter sessions under section 7 of the
Poor Relief Act, 1743, by a person against
whom a warrant of distress has been issued for
non-payment of poor rate, which has been
followed by a levy, is not an appeal against
an " order " of a Court of summary juris-
diction, and therefore the procedure as to the
entering into recognisances prescribed by sec-
tion 31, sub-section 3 of the Summary Juris-
diction Act, 1879, is not applicable. Rex v.
Lincolnshire Justices, 81 Tj. J. K.B. 967;
[1912] 2 K.B. 413: 107 L. T. 170; 76 J. P.
311 : 10 L. G. R. 703; 23 Cox C.C. 102— D.
TI. COUNTY RATES.
See also Vol. XL 1738, 2006.
" Monies ... to be paid in like manner as
the money required ... for the relief of the
1271
EATES AND RATING— REFEEENCE.
1272
poor " — Exemption — Hereditaments " free
from all taxes and assessments whatsoever."]
— By a statute. 7 Geo. 3. c. 37, it was pro-
vided that certain lands in the City of London,
reclaimed from the river Thames under the
Act, should be " free from all taxes and assess-
ments whatsoever," and it has been decided
that this exemption extended to the poor rate.
By the County Eates Act, 1852, s. 26, the
" guardians shall raise the monies required
... to be paid in like manner as the money
required by such guardians for the relief of
the poor " : — Held, that the rate under the
Act of 1852 was only payable in respect of
hereditaments which were rateable to the relief
of the poor, and therefore that the exemption
under the Act of George 3 extended to such
rate, notwithstanding that by subsequent
legislation part of such rate was made
applicable to purposes other than the relief of
the poor, which were not in the contemplation
of the Legislature at the time when the
exemption was granted. London Corporation
V. Associated Neicspapers, Lim. {No. 1),
84 L. J. K.B. 1053; [1915] A.C. 674;
113 L. T. 1; 79 J. P. 273; 13 L. G. R. 673;
31 T. L. R. 266— H.L. (E.)
The Valuation (Metropolis) Act, 1869, was
not intended to alter rights or the incidence of
the county rate, but only to affect the
machinery of collection. lb.
Decision of the Court of Appeal (83 L. J.
K.B. 979; [1914] 2 K.B. 603) affirmed. lb.
Appeal — Hereditaments in the City — To
what Court of Quarter Sessions Appeal Lies.]
— By a precept issued by the London County
Council, the Common Council of the City of
London were required to pay a certain sum
as the amount of the contribution payable by
the City for general county purposes assessed
and charged on the City in respect of a county
rate. This rate was based upon the rateable
value of hereditaments without deducting the
value of those which were exempted from
taxes and assessments by virtue of the provi-
sions of 7 Geo. 3. c. 37 : — Held, that an appeal
by the Common Council from such rate lay
to the Quarter Sessions for the County of
London and not to the Quarter Sessions for
the City of London. Rex v. London County
Justices: Rex v. City of London Justices,
81 L. J. K.B. 932: [1912] 2 K.B. 556;
107 L. T. 196 ; 76 J. P. 380 ; 10 L. G. E. 535
— D.
Next Quarter Sessions after "cause of
appeal" Arises — Repayment of Proportion of
Rate Paid Prior to Giving of Notice ol
Appeal.] — A county rate which affected the
parish of B. was made by the appellants in
March, 1910. The first instalment was pay-
able by the respondents as overseers of the
parish of B. in two equal portions on May 21
and August 20, 1910. The second instalment
was payable by the respondents in two
equal portions on November 19, 1910, and
Fel)ruary 18, 1911. A railway company on
September 2, 1910, gave notice of appeal
against their assessment to the poor rate in
the parish of B. In April, 1911, as the result
of that appeal, the assessment of the railway
company was reduced, and the respondents
repaid to the railway company and other ob-
jectors, whose assessments had also been
reduced, the amounts by which the precepts
for the poor rate as issued exceeded the
poundage rate on the valuation list as reduced,
which repayments amounted to the sum of
121Z. 65. in respect of over-assessment to the
county rate as regards the instalments payable
by August 20, 1910, and 107Z. 5s. as regards
the instalments payable by February 18, 1911.
The respondents, on September 27, 1910, gave
notice of appeal to the next quarter sessions
against the county rate basis and also against
the county rate made in March, 1910, on the
ground that such rate was made on a county
rate basis which was unfair, unequal, and
incorrect : — Held, that the grievance of the
respondents in respect of which they had a
right of appeal, if it existed at all, arose either
when the county rate was made in March,
1910, or when the assessment of the railway
company was reduced in April, 1911, and that
therefore the respondents had not appealed
to the next quarter sessions after the cause of
appeal arose, and that the quarter sessions had
no jurisdiction to entertain the appeal. Held,
also, that quarter sessions have no power under
section 23 of the County Rates Act, 1852, whfen
a rate or assessment has been set aside, de-
creased, or lowered, to order the repayment of
a proportion of the moneys paid by a person,
parish, township, or place in respect of the
rate prior to the giving of the notice of appeal.
Glamorgayi County Council v. Barry Over-
seers, 81 L. J. K.B. 836; [1912] 2 K.B. 603;
108 L. T. 118; 76 J. P. 307; 10 L. G. R. 477
— D.
RECEIVER.
See COMPANY: EXECUTION.
RECOGNIZANCE.
See CRIMINAL LAW; JUSTICE OF
THE PEACE.
REDEMPTION.
Of Mortgage.] — See Mortg.\ge.
REFERENCE.
See ARBITRATION.
1273 REMOTENESS— REVEX UE.
REMOTENESS.
See PERPETUITY.
1274
REMOVAL OF PAUPERS.
See POOR LAW,
RENT.
See LANDLORD AND TENANT ;
DISTRESS.
REPAIRS.
Generally.] — See Landlord .\nd Tenant.
REPUTED OWNERSHIP.
See BANKRUPTCY.
RES JUDICATA.
See ESTOPPEL.
RESTITUTION OF
CONJUGAL RIGHTS.
See HUSBAND AND WIFE.
RESTRAINT OF TRADE.
See CONTRACT.
RESTRAINT ON
ANTICIPATION.
See HUSBAND AND WIFE.
RESTRICTIVE
COVENANTS.
See LANDLORD AND TENANT ; VENDOR
AND PURCHASER.
RESULTING TRUST.
See TRUST AND TRUSTEE.
RETAINER.
Of Solicitor.] — See Solicitor.
Of Debt by Executor.] — See Execdtok and
Administrator.
RETURNING OFFICER.
See ELECTION LAW.
REVENUE.
A. Taxes and Duties.
I. Income and Property Tax.
a. Lands, Tenements, and Hereditaments,
1275.
b. Annual Profits from Trade, dc.
1. Property and Persons Liable, 1276.
2. Mode of Assessment, 1284.
3. When Deductible, 1294.
4. Repayment, 1296.
5. Appeal from Assessment, 1297.
c. Public Office or Employment of Profit^
1297.
II. Super-Tax, 1298.
III. Inhabited-house Duty, 1300.
IV. Land Tax, 1301.
V. Taxation of Land Valies.
1. Valuation, 1302.
2. Increment Value Duty, 1304.
3. Reversion Duty, 1310.
4. Undeveloped Land Duty, 1314.
5. Mineral Rights Duty. 1316.
1275
REVENUE.
1276
VI. Legacy Duty, 1319.
VII. Sdccession Duty, 1320.
VIII. Estate Duty.
1. When Payable, 1321.
2. Amount on which Payable, 1324.
3. By whom Payable, 1325.
4. Incidence and Payment, 1326.
5. Mode of Assessment, 1330.
6. Charge for, 1331.
IX. Settlement Estate Duty, 1331.
X. Corporation Duty, 1332.
B. Customs and Excise.
I. In Particular Cases.
1. Armorial Bearings, 1333.
2. Carriages and Carts, 1333.
3. Gold and Silver Plate, 1336.
4. Male Servants, 1336.
5. Tobacco, 1338.
II. Penalties, 1338.
C. Stamps.
I. Agreements, 1338.
II. Bond, Covenant, or Instrument, 1339.
III. Capital of Company, 1340.
IV. Conveyance or Transfer, 1340.
V. Debenture. — See VIII. Marketable
Security (infra).
VI. Deed, 1342.
VII. Lease, 1342.
VIII. Marketable Security, 1342.
IX. Settlement, 1343.
X. Offences, 1343.
XI. Unstamped Documents, 1344.
D. Commissioners.
I. Proceedings Before, 1344.
II. Collectors of Taxes, 1344.
A. TAXES AND DUTIES.
I. INCOME AND PROPEETY TAX.
a. Lands, Tenements, and Hereditaments.
See also Vol. XII. 139, r2-2;5.
Schedule A — Additional First Assessment —
Final Determination — Basis — Poor Law
Valuation.] — Where an appeal against an
original assessment to income tax (Schedule A)
has been withdrawn by the appellant without
any evidence being offered, there is no such
final determination of the assessment by the
Commissioners as would, under section 57,
sub-section 10 of the Taxes Management Act,
1880, preclude them from making an additional
first assessment under section 52 of the Act.
In making an assessment to income tax
(Schedule A) the Commissioners are entitled
to have regard to the poor rate assessment
without allowing themselves to be controlled
by it. The fact that a brewer's assessment to
income tax (Schedule D) is too high cannot
be taken into consideration in deciding whether
an additional first assessment under Schedule A,
on a tied public house owned by him, has been
properly made. Gundry v. Dunham, 32 T. L. R.
142— C.A.
Literary or Scientific Institution.] — The
Juridical Society of Edinburgh, which was
composed of persons who were, or intended to
become, advocates or writers to the signet,
maintained a library chiefly of law books, and
published from time to time a style book of
legal forms. It also held debates on legal
questions, attendance at which was optional :
— Held, that the society's premises were not
exempt from income tax under the Income
Tax Act, 1842, Sched. A, rule No. VI., in
respect that the society was not a literary or
scientific institution, but an association whose
main objects were professional. Farmer v.
Edinburgh Juridical Society, [1914] S. C. 731;
6 Tax Cas. 467— Ct. of Sess.
Exemption — Charitable Trustees — Property
Occupied by Trustees — " Rents and profits."]
— The exemptions from income tax under
Schedule A of the Income Tax Act, 1842, given
by section 61, No. VI., in favour of trustees
for charitable purposes, does not extend to
lands, tenements, or hereditaments in the
actual occupation of such trustees, but is con-
fined to cases where the trustees let their
property to a tenant and receive rents and
profits in respect of such letting. Maughan
V. Free Church of Scotland (20 Ct. of Sess.
(4th Series), 759 ; 30 Sc. L. R. 666 ; 3 Tax Cas.
207) approved of. Decision of Divisional Court
(80 L. J. K.B. 788) reversed. Rex v. Income
Tax Commissioners; Essex Hall, Ex parte,
80 L. J. K.B. 1035; [1911] 2 K.B. 434;
104 L. T. 764: 27 T. L. R. 466; 5 Tax Cas.
636— C.A.
b. Annual Profits from Trade, &c.
1. Property and Persons Liable.
See also Vol. XII. 147, 1225.
Trade Exercised "within the United King-
dom " — Agent having " receipt of any
profits."] — A French company, having its
head office in Paris and owning phosphate
mines in Algeria, employed a firm of Scottish
merchants as their sole agents for the sale of
their phosphates in the United Kingdom.
Contracts of sale were concluded by the agents
in the United Kingdom, but no stock was
held in this country, and the goods were
shipped from Algeria, delivery taking place
before they were landed in this country. By
the terms of the contracts payment was " by
cash in London," and in practice it was made
by cheques on London, payable in some cases
to the company and in others to the agents,
and always sent (indorsed when necessary)
by the agents to the company in Paris, by
whom they were cashed. The agents were
paid by commission, which was remitted to
them by the company, and the name of the
company did not appear in any directory, or
1277
REVENUE.
1278
on any business premises in this country. The
Income Tax Commissioners having found that
the company carried on business in the United
Kingdom, and that the agents were liable in
payment of income tax on the assessed profits,
— Held (Lord Dundas dissenting), that the
company did not exercise any trade within the
United Kingdom under section 2, Schedule D
of the Income Tax Act, 1853, and that in any
event the agents were not in receipt of the
profits arising on sales in the United Kingdom
within section 41 of the Income Tax Act, 1842.
Crooksion v. Inland Revenue, [1911] S. C.
217 ; 5 Tax Cas. 602— Ct. of Sess.
The appellants carried on business as mer-
chants and commission agents in the United
Kingdom, and sold goods on behalf of a firm
of manufacturers at Verviers, Belgium.
There was no written agency agreement.
Offers received by appellants were submitted
t.o the manufacturers for approval, and, if
approved, were accepted by the appellants on
behalf of the manufacturers. The goods were
consigned to the appellants for delivery to
customers in the United Kingdom. The
appellants received payment for the goods and
discharged the accounts on behalf of the
manufacturers. The appellants sent sale
accounts to the manufacturers monthly and
rendered a quarterly statement for expenses
and commission. They were paid by commis-
sion on business done and were liable for
one-half of the bad debts : — Held, that the
manufacturers were exercising a trade within
the United Kingdom, and that the decision of
the Commissioners in assessing the appellants,
as agents, in respect of the profits derived
by the manufacturers from the exercise of such
trade was right. Macpherson v. Inland
Revenue, [1912] S. C. 131.5: 6 Tax Cas. 107—
Ct. of Sess.
" Person residing in the United Kingdom "
— Company Registered Abroad — Right to
Exercise Control in the United Kingdom.^ — A
finding by the Commissioners of Income Tax
that a company which is registered abroad is
resident in the United Kingdom for the pur-
poses of assessment to income tax, on the
ground that the control and directing powers
of the company are in England, is, if there
is evidence to support it, conclusive. American
Thread Co. v. Joyce, 108 L. T. 353; 6 Tax Cas.
162; 57 S. J. 321 ; 29 T. L. R. 266-H.L. (E.)
A company resides, for the purposes of
income-tax assessment, at the place where its
real business is carried on — that is, where
the control and management of the company
is exercised — notwithstanding that the details
of its trade may not be ordinarily dealt with
there. 7b.
The appellants were a shipping company
registered in New Zealand with limited lia-
bility. The registered office of the company
was in Christchurch, New Zealand, where
business was transacted by a New Zealand
directorate. There was a separate board of
directors in London, and at the London office
were kept the general books of the company,
comprising all their accounts. General meet-
ings were held yearly in London and
Christchurch, but the accounts were prepared
and examined in Tvondon and dividends were
declared there. Registers of shareholders were
kept in both countries. The New Zealand
board managed the local business in New
Zealand and negotiated independently the
most important of the freight contracts, but
it was found in the Case that with this excep-
tion all contracts of importance were entered
into in London, where all important questions
of policy were decided, the New Zealand
directorate acting in effect as district managers
of the London Board : — Held, following De
Beers Consolidated Mines v. Howe (75 L. J.
K.B. 858; [1906] A.C. 455), that the company
was for income tax purposes resident in the
United Kingdom. New Zealand Shipping Co.
V. Stephens, -52 S. J. 13; 24 T. L. R. 172;
5 Tax Cas. 5.53— C. A.
Business Abroad — Temporary Visits to
United Kingdom, i — A merchant carrying on
business in Madras resided there, with his
wife, during the whole of the year of assess-
ment, not visiting the United Kingdom at all.
His usual residence was in Madras, but, in
nearly every year prior to the year of assess-
ment, he had visited the United Kingdom,
residing latterly with his wife and family in
a house purchased in his wife's name out of
moneys belonging to her and himself and
owned by her. During the year of assessment
some of his children resided in this house : —
Held, that during the year of assessment he-
was not chargeable with Income Tax as a
person residing in the United Kingdom.
Turnbull v. Foster, 7 Eraser, 1; 42 Sc. L. R.
15; 6 Tax Cas. 206— Ct. of Ex. Scotland.
Residence of Foreigner — Yacht Anchored in
Tidal Waters.] — A citizen of the United States
had for the last twenty years lived on board
his own yacht, which was anchored in tidal
navigable waters within the port of Col-
chester in the county of Essex, obtaining
provisions and necessaries from the nearest
village. The yacht had always been kept
fully manned and ready to go to sea at any
moment : — Held, that the owner was ;i
" person residing in the United Kingdom '
within the Income Tax Act, 1853, s. 2
Sched. D, and was assessable to income tax
accordingly. Young, In re (1 Tax Cas. 57
12 Sc. L."'R. 602), distinguished. Broicn v
Burt, 81 L. J. K.B. 17; 105 L. T. 420
27 T. L. R. 572; 5 Tax Cas. 667— C. A.
Sums " received in Great Britain in tht
current year" — Interest Re-invested Abroad
in Purchase of Bonds — Bonds Transmitted to
this Country — Sale of Bonds in this Country
in Subsequent Year.i — The interest derived in
1907 from the American investments of a
Scottish insurance company was re-invested
in American bearer bonds, and the bonds were
transmitted to this country in the same year.
The bonds were afterwards sold, and the
proceeds were received at the head office in
August and October, 1908 -.— Held, that the
sums realised on the sale of the bonds, being
sums " received in Great Britain " in respect
of interest on foreign securities, were charge-
able with income tax for the year in which
the proceeds of the sales were received,
although the interest had in fact been earned
1279
KE VENUE.
1280
prior to that year. ScottisJi Provident Insti-
tution V. Inland Revenue, [1912] S. C. 452;
6 Tax Cas. 34— Ct. of Sess.
Profits from Foreign Possessions — Place of
Assessment — Jurisdiction of Commissioners.] —
Section 108 of tlie Income Tax Act, 1842,
dealing with profits arising from foreign
possessions, is to be read as a proviso upon
section 106, qualifying and excluding that
section in the cases to which it applies, and
tlierefore a person residing nearer to London
than to any of the other ports mentioned
in the section is assessable in London only
in respect of profits arising from foreign
possessions, and the Income Tax Commis-
sioners acting for his place of residence have
no jurisdiction. Decision of the Court of
Appeal, sub nam. Rex v. Kensington Income
Tax Commissioners; Aramayo, Ex parte
(83 L. J. K.B. 1439; [1914] 3 K.B. 429),
affirmed. Kensington Income Tax Commis-
sioners V. Aramayo, 84 L. J. K.B. 2169;
59 S. J. 715; 31 T. L. R. 606-H.L. (E.)
Insurance Company — Investments Abroad —
Interest not Remitted to United Kingdom.] —
An insurance company, which had its head
ofiice in England, carried on an extensive fire
insurance business in the United States,
Canada, and Australia, and had investments
in those countries, partly in order to comply
with the law of those countries as to fire-
insurance business, and partly as a profitable
investment of capital. The interest and
dividends on these investments were not
remitted to England, but were used in the
countries where they accrued to meet claims
under policies in those countries : — Held, that
the company was properly charged with income
tax on such interest and dividends as being
part of the profits and gains of their business
under Case I. in Schedule D of the Income
Tax Act, 1842. Liverpool, London, and
Globe Insurance Co. v. Bennett, 82 L. J. K.B.
1221; [1913] A.C. 610; 109 L. T. 488;
6 Tax Cas. 327; 20 Manson, 295; 57 S. J.
739; 29 T. L. R. 757— H.L. (E.)
Judgment of the Court of Appeal (81 L. J.
K.B. 639; [1912] 2 K.B. 41) af&rmed. lb.
Company Resident in England — Trade
Carried on Abroad — Management.] — A com-
pany registered in England carried on business
abroad. The business was entirely under the
management and control of a local board of
directors. The board of directors in England
only met to receive reports and accounts,
declare dividends, issue balance sheets, and
exercise financial control over the company : —
Held, that in so doing they did not take part
in, or exercise control over, the carrying on of
the business abroad, and that the profits of the
business arose from foreign possessions, and
fell to be taxed under Case V. of section 100,
Sched. (D.) of the Income Tax Act, 1842,
the business being carried on wholly outside
the United Kingdom. Mitchell v. Egyptian
Hotels, Lim., 84 L. J. K.B. 1772; [1915]
A.C. 1022; 6 Tax Cas. 542; 59 S. J. 649;
31 T. L. R. 546— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 1510; [1914] 3 K.B. 118) affirmed; Earl
Loreburn and Lord Parmoor dissenting. lb.
Interest on Poor Rate Deposited in Bank —
Claim for Exemption — "Yearly interest or
other annual payment."] — Poor rates collected
by overseers were paid by them into an
account at a bank, and by a long-standing
arrangement the bank, upon the footing that
the account would continue to be kept there
and would always be in credit, allowed
interest on the daily balances without deduct-
ing income tax : — Held, that the interest
allowed by the bank was not '" yearly interest
or other annual payment " within section 105
of the Income Tax Act, 1842, and that there-
fore the overseers were not exempted from
being assessed to income tax in respect thereof
under section 100, Schedule (D.). Garston
(Overseers) v. Carlisle, 84 L. J. K.B. 2016;
[1915] 3 K.B. 381; 13 L. G. R. 969—
Rowlatt, J.
Foreign Trust Estate — Beneficiaries in the
United Kingdom — Infants not Entitled to a
Vested Interest — Remittances to Guardian for
Maintenance and Education — Uncontrolled
Discretion of Trustees.] — An American testa-
tor left property in America to American
trustees upon trust to accumulate it for his
grandchildren, who were minors, until they
should respectively attain the age of twenty-
five years, when each child was given a life
interest in its share. The trustees were
directed, out of the income of the share of the
trust estate held in trust for each child, to
make such provision as they in their uncon-
trolled discretion might think necessary or
advisable for the suitable maintenance and
education of such child. The children resided
in England with their mother, who was their
guardian, and the trustees from time to time
remitted money to her for their maintenance
and education : — Held, that the trust estate
was a " foreign possession," in respect of
which the remittances were received, and that
they were therefore assessable to income tax
under the Income Tax Act. 1842, s. 100,
Sched. (D.), Case 5, and the Income Tax Act,
1853, s. 2, Sched. (D.), and that the guardian
was chargeable on behalf of the infants under
section 41 of the Income Tax Act, 1842.
Drummond v. Collins, 84 L. J. K.B. 1690;
[1915] A.C. 1011 : 113 L. T. 665 ; 59 S. J. 577 ;
31 T. L. R. 482; 6 Tax Cas. 525— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 729; [1914] 2 K.B. 643) affirmed. Ih.
Profits of a Railway — Guaranteed Interest
by South African Republic — Line Taken by
British Government — Payment of Arrears of
Interest.] — In 1895 the South African Republic
granted a concession for the construction of
a railway, and guaranteed to a company,
which was formed to take over the railway,
payment of interest at the rate of 4 per cent,
on its share capital. During the South
African War the British military authorities
seized and worked the railway, and ulti-
mately the British Government gave notice
to expropriate the railway under the terms of
the concession, and undertook to pay all
arrears of interest due under the guarantee.
They accordingly paid 97,506L I65. lid. as
■' guaranteed interest on share capital at 4 per
cent, per annum from January Ist, 1899, to
1281
REVENUE.
1282
November 14th, 1903," together with other
sums becoming due by reason of the expropria-
tion -.—Held, that the sum of 97,506Z. 16s. ll(i.
in question was not part of a sum paid by the
British Government as the price of the com-
pany's undertaking, that it must be treated
as the gross revenue earned by the Company
as a trading company from January 1, 1901,
to November 14, 1903, and that after deducting
certain expenses of the company during the
same period, the benefit of the three years'
average must be applied, and income tax was
payable on one-third of the balance only.
Pretoria-Pietersburg Railway v. Elwood,
98 L. T. 741; 6 Tax Cas. 508— C. A.
" Profits or gains "—Golf Club — Fees Paid
by Non-members. — A golf club, in accord-
ance with the terms of the lease of its grounds,
admitted non-members, upon payment of fees
prescribed by the lessors, to play golf on the
links and make use of the club house. The
Income Tax Commissioners decided that the
club was liable to be assessed to income tax in
respect of these fees, less such proportion of
the annual outlay in maintaining and keep-
ing up the links and club house as the same
contributions bore to the entire annual income
of the club : — Held, that the club was assess-
able to income tax under Schedule D of the
Income Tax Act, 1842, in respect of the
" profits or gains " derived from the payment
of fees by non-members; but that the method
adopted lay the Commissioners for arriving at
the taxable profits was wrong, and the case
nmst, in default of agreement, be remitted to
them to ascertain the same. Carlisle and
Silloth Golf Club v. Smith, 82 L. J. K.B.
837; [1913] 3 K.B. 75; 108 L. T. 785;
11 L. G. E. 710 ; 6 Tax Cas. 198 ; 57 S. J. 532 ;
29 T. L. R. 508— C.A.
Decision of Hamilton, J. (81 L. J. K.B.
581; [1912] 2 K.B. 177), affirmed. 7b.
Negotiation Fee Paid to Agent on Sale of
Estate under Irish Lands Purchase Acts.] —
The agent of an estate intended to be sold to
the tenants under the provisions of the Irish
Land Act, 1903, was employed by the vendors
to negotiate the sales, under an agreement by
which he was to receive out of the purchase
money a commission of 3 per cent, on the
amount of the same, and this agreement was
sanctioned by the Estates Commissioners. The
estate was sold and the amount of the com-
mission paid out of the purchase money : —
Held, that the commission was part of the
annual gains and profits of the agent arising
from his vocation as agent in respect of which
he was assessable to income tax. Humphrey
V. Peare, [1913] 2 Ir. E. 462; 6 Tax Cas.
201— K.B. D.
Waterworks — Supply of Water by Rural
Authority to Parishes in their Area— Profits in
some, Losses in other Parishes — No Deduction
of Losses from Profits — Separate Under-
takings.]— A rural sanitary authority, in pur-
suance of the powers granted to them by the
Public Health Act, 1875. undertook the supply
of water to various parishes within their area.
The water thus supplied was purchased by the
authority in bulk from the W. Corporation.
The working of the water supply in some of
the parishes resulted in a profit and in other
of the parishes in a loss. Separate accounts
were kept by the authority in regard to each
of the parishes. Any deficiency resulting from
the working of the water supply in a parish
in any year was met by a special expenses rate
levied upon all the ratepayers in that parish,
and any surplus that might arise from the
working of the water supply in any parish was
carried forward to the credit of that parish
in accordance with the provisions of the Public
Health Act, 1875. The surveyor of taxes
assessed the authority under No. III. of
Schedule (A.), section 60 of the Income Tax
Act, 1842, to income tax in respect of the
profits made in each of the parishes in which a
profit was made : — Held, that the waterworks
carried on by the authority were not a single
undertaking, but that the supply of water to
each of the parishes was a separate concern ;
and held, therefore, that the surveyor had
rightly assessed the authority to income tax
in respect of the profits made in each of the
parishes in which a profit was made.
Wakefield Rural Council v. Hall, 81 L. J.
K.B. 1201 ; [1912] 3 K.B. 328; 107 L. T. 138;
76 J. P. 437 ; 10 L. G. E. 1002 ; 6 Tax Cas.
181; 28 T. L. E. 589— C.A.
Supply of Water — Rate — District Coun-
cil.]— A rural district council was bound by
Act of Parliament to supply water to any
ratepayers within its rural district who might
make application therefor, and was empowered
to collect a special rate from consumers of
water so supplied : — Held, following Glasgow
Corporation Water Commissioners v. Miller
(23 Sc. L. E. 285) and Dublin Corporation v.
M'Adam (20 L. E. Ir. 497), that the relation
between the district council representing the
general body of ratepayers and the consumers
of water respectively is that of vendor and
purchaser, and that the profit made by the
district council is a profit within the meaning
of the Income Tax Acts, and as such is liable
to tax. Mullingar Rural Council v. Rowles,
[1913] 2 Ir. E. 44; 6 Tax Cas. 85— K.B.
D. (Ir.)
Profit on Purchase and Re-sale of Pro-
perty.]— The memorandum of association of a
limited company, a rubber syndicate, set forth
that the objects of the corapau}' were (inter
alia) — first, the acquisition and development
of a rubber estate in the Malay Peninsula ;
secondly, the acquisition and development
of rubber estates there or elsewhere, and
the carrying on of the business of manufac-
turing and trading in rubber; and thirdly,
the sale of the whole or any part of the busi-
ness undertaking and property of the company.
The company acquired two estates and ex-
pended money on their development ; but before
the estates reached tiie stage of producing
rubber the company, finding its capital inade-
(juate fully to develop the estates, sold its
whole undertaking to a new company at a price
which exceeded by 9,000/. the whole suras
spent by the selling company in acquiring and
developing the estates : — field, that the busi-
ness of the company not being the buying and
selling of rubber estates, but the production
41
1283
KEVENUE.
1284
of and trading in rubber, this sum of 9,000/.
could not be regarded as income assessable for
income tax. Californian Copper Syndicate v.
Inland Revenue (6 F. 894) distinguished.
Assets Co. V. Inland Revenue (24 R. 578) and
Stevens v. Hudson's Bay Co. (25 T. L. E.
709) followed. Tebrau (Johore) Rubber
Syndicate v. Farmer, [1910] S. C. 906; 5 Tax
Cas. 658— Ct. of Sess.
Realisation Company — Conversion of
Securities.] — Where the owner of an invest-
ment realises it, and obtains a higher price
than he originally gave for it, the enhanced
price is not "profit" within the meaning of
the Income Tax Acts (Victoria) ; but where a
company was formed to hold and nurse the
assets of certain banks which were in liquida-
tion, and to sell the securities at a profit
when an occasion presented itself, — Held,
that such company was a trading company,
and that the surplus realised by it from selling
the assets at enhanced prices was taxable as
profit under section 9 of the Income Tax Act,
1903 (Victoria). Califorman Copper Syndi-
cate V. Harris (6 Fraser, 894 ; 5 Tax Cas. 159)
approved and followed. Commissioner of
Taxes v. Melbourne Trust, 84 L. J. P.C. 21;
[1914] A.C. 1001 ; 111 L. T. 1040 ; 30 T. L. E.
685— P.C.
River Conservancy Board — Statutory
Contributions to Board's Income by Com-
panies Interested in Navigation of River.] —
The Humber Conservancy Board were in-
vested by statute with the duty of maintain-
ing and improving the navigation of the
Humber. Their receipts, applied to the above
purposes, consisted in the first place of certain
shipping and registration dues, and some
rents, fees, &c., upon which they paid income
tax, and in the second place of certain con-
tributions, paid annually to the board under
compulsion of statute, by certain railway and
canal companies interested in the navigation
of the Humber : — Held, that these contribu-
tions must be treated as part of the board's
income, and were assessable to income tax
either as representing the annual value
of an inland navigation within section 60,
Schedule A, No. III. rule 3 of the Income Tax
Act, 1842, or as annual profits or gains under
Schedule D, Sixth Case. Humber Conservancy
Board v. Bater, 83 L. J. K.B. 1745 ; [1914]
3 K.B. 449; 111 L. T. 856; 6 Tax Cas. 555
— Scrutton, J.
Exemption Forbidden by Statute — Subse-
quent Act Authorising Annuity Free from all
Taxes — Super-tax.] — By section 187 of the
Income Tax Act, 1842, any future Act con-
ferring an exemption from taxes shall not
exempt any person from the duties granted by
the Act of 1842. By section 1 of an Act of
1871 (34 Vict. c. 1) the Crown was empowered
to grant to Princess Louise an annuity of
6,000?. " free from all taxes, assessment, and
charges." By section 66 of the Finance
(1909-10) Act, 1910, a super-tax was imposed
on incomes over 5.000L : — Held, that ^he Acts
of 1842 and 1871 being inconsistent, the later
Act must prevail, and that therefore the
annuity was exempt from income tax.
Argyll (Duke) v. Inland Revenue Commis-
sioners, 109 L. T. 893; 30 T. L. E. 48—
Scrutton, J.
Relief — Earned Income — Business Carried
on by Trustees for Minor Beneficiaries.] —
Testamentary trustees carried on a business
forming part of the residue of the trust estate
for behoof of two daughters of the testator
who were minors. These daughters were the
sole beneficiaries interested in the residue of
the estate, and the whole profits of the busi-
ness were paid over each year to or on behalf
of these daughters. By the terms of the trust
deed each of these daughters, on attaining
majority, was entitled to one-half of the free
trust estate, but during their minorities they
had no absolute right to any part of the in-
come of the trusts, although the trustees were
authorised to apply any part of the income
of the prospective share of each for her main-
tenance or education. As neither of the
daughters had an income exceeding 2,000Z.
per annum, a claim was made on their behalf
for relief from income tax with regard to the
profits of the business in respect that these
profits were " earned income " within
section 19 of the Finance Act, 1907 -.—Held,
that the beneficiaries were not entitled to the
relief sought in respect that the income was
not earned by them. Inland Revenue v.
Shiels's Trustees, [1915] S. C. 159; 6 Tax Cas.
348— Ct. of Sess.
2. Mode of Assessment.
See also Vol. XII. 157, 1238.
Profits of Trade — Single-ship Company —
Loss of Ship and Acquisition of New Ship —
Computation of Averags Profits — Commence-
ment of Business.] — The appellants were
registered in 1901 as a limited company to
acquire and trade with a certain steamship,
and, in the event of its loss, to acquire and
trade with another, but were in no event to
own more than one steamship at any one time.
The steamship first acquired was lost in
April, 1906, and with the insurance moneys
the appellants purchased another ship and
traded with it from October, 1905 -.—Held,
that the appellants were carrying on one busi-
ness from the beginning in 1901, and that
they did not commence a fresh business when
they commenced to trade with the second ship
so acquired, and consequently that they were
to be assessed on the average of their profits
for the three years preceding the assessment,
and not on the profits of one year. Merchisto7i
Steamship Co. v. Turner, 80 L. J. K.B. 145 ;
[1910] 2 K.B. 923; 102 L. T. 363; 11 Asp.
M.C. 487— Bray, J.
Trade Commenced in Year Preceding Year
of Assessment — First Balance Sheet Struck
during Year of Assessment — Competency of
Considering Profits Earned during Year of
Assessment.] — A company commenced busi-
ness on September 13, 1911, and its first
balance sheet was struck at November 20.
1912, thus covering a period of 434 days'
trading. The Inland Eevenue assessed the
company for income tax for the year April 5,
1285
REVENUE.
1286
1912, to April 5. 1913, on the basis of the
profits disclosed for this period of 434 days,
by taking 36o-434ths of that sum as repre-
senting one year's profits. The company con-
tended that it was incompetent to take into
consideration any profits earned after the
commencement of the year of assessment, and
accordingly that the year's profits, on which
they fell to be assessed, must be estimated on
the basis of the profits actually earned by
them during the period September 13, 1911,
to April 5, 1912 : — Held (Lord Johnston diss.),
that the method adopted by the Inland
Revenue was right. Gletisloy Steamship Co.
V. Inland Revenue. [1914] S. C. 549; 6 Tax
Cas. 453— Ct. of Sess.
Average Profits and Gains — Patent — Royal-
ties— Cessation of Payments.] — Section 25,
sub-section 1 of the Finance Act, 1907, pro-
vides that " In estimating, under any schedule
of the Income Tax Acts, the amount of the
profits and gains arising from any trade,
manufacture, adventure, concern, profession,
or vocation, no deduction shall be made on
account of any royalty, or other sum, paid in
respect of the user of a patent, but the person
paying the royalty or sum shall be authorised,
on making the payment, to deduct and retain
thereout the amount of the rate of income tax
chargeable during the period through which
the royalty or sum was accruing due." Pre-
viously to January 1, 1907, the appellants had
paid royalties for the use of certain patents
which, in consequence of arrangements made
between the appellants and the owners of the
patents, ceased to be payable after that date.
The question was how the trade profits of the
appellants during the year 1907 to 1908 ought
to be estimated, having regard to the above
sub-section : — Held, that the operation of the
first part of the sub-section was dependent upon
that of the latter part, and that, inasmuch as
the latter part could have no operation under
the circumstances, the appellants were in the
same position as before the enactment, and
were therefore entitled to deduct the royalties
paid by them during the three years of average
for the purpose of estimating their profits
during the year of assessment. Lari,<;ton
Monotype Corporation v. .indersoti. 80 L. J.
K.B. 1351; [1911] 2 K.B. 1019; 105 L. T.
398; 5 Tax Cas. 675— C. A.
Balance of Profits and Gains — Fire Insur-
ance Company — Prepaid Unearned Premiums
— Estimate.l— In the assessment to income
tax of fire insurance companies there is no rule
of law by which to frame an estimate of the
balance of profits and gains after allowing for
the unexpired risks when the accounts are
made up; it is a question of facts and figures
in each case whether the assessment is fair
both to the Crown and to the subject. General
Accident. Fire, and Life Assurayice Corpora-
tion V. M'Gowan (77 L. J. P.C. 38; [1908]
A.C. 207) discussed and explained. Sun
In-turance Office v. Clark, 81 L. J. K.B. 488;
[1912] A.C. 443; 106 L. T. 438; 6 Tax Cas.
59; 56 S. J. 378; 28 T. L. B. 303— H.L. (E.)
In the case of the appellants the Commis-
sioners of Taxes for the City of London were
of opinion that 40 per cent, of the premiums
income carried forward in each year was a
reasonable and proper allowance or deduction
by w-ay of unearned premiums, and did not
form part of the profits and gains for the
year. Bray, J., affirmed the view of the
Commissioners, which was in favour of the
appellants, but his decision was reversed by
the Court of Appeal. The House reversed the
decision of the Court of Appeal, and restored
that of Bray, J. lb.
Trading Profits — Ascertainment — Purchase
of Going Concern — Entries in Purchaser's
Books made for Book-keeping Purposes.] — A
limited company was formed to take over as
a going company the manufacturing business
then being carried on by a company in liquida-
tion. The consideration was 25,000/. in cash
and an obligation to relieve the sellers of
certain contingent liabilities which could only
emerge and be ascertained at a future date.
For the purpose of keeping their bo6ks the
new companv allocated the purchase price of
25,000/. as 'follows : 19,375/. to buildings,
plant, &c. (arrived at arbitrarily by taking
one-third of the values standing in the books
of the old company), and the remainder,
5,625/. to stock-in-trade. They at the same
time valued the stock-in-trade on an ordinary
stock-taking basis, which brought out the
value at 12,798/. Is. id. They used this
valuation for their trading and profit and loss
accounts, and squared these with the opening
entry of 5,625/. by treating the difference —
namely, 7,193/. Is. id. — as a " stock suspense
account " to provide for the contingent liabili-
ties they had undertaken under the contract
of purchase. When the first balance sheet for
a complete year of tradmg was made up by the
company, the Inland Revenue claimed income
tax on their profits calculated on the basis
of taking the sum of 5,625/. as the opening
value of the stock. The company maintained
that the figure that should be taken was
the true value of the stock — namelv,
12,798/. Is. id. -.—Held, that the Inland
Revenue was not entitled to take the purely
book-keeping entry of 5,625/. as conclusive
evidence of the true value of the stock, but
was bound to ascertain the true value and
assess for income tax on that basis. Craicj
(Kilmarnock). Lim. v. Inland Revenue, [1914]
B. C. 338— Ct. of Sess.
Deductions — Brewery Company — Balance of
Profits or Gains — "Tied" Houses Let to
Tenants — Compensation Levy — Landlord's
Share.] — .\ brewery company, upon being as-
sessed under Schedule D of the Income Tax
Act, 1853, in respect of the profits of their
trade, claimed to deduct from the amount of
those profits the sum expended by them as
landlords of certain " tied " houses in respect
of the proportion of the compensation levy
imposed upon them by section 3 of the Licen-
sing Act, 1904. The tied houses were owned
by the companj' and were let to tenants upon
the terms that the tenants should only deal
with the company in the way of their business,
and should buy all the beer consumed on the
premises from the company, the tenants pay-
ing a lower rent in consideration therefor.
It was found as a fact that the profits of the
1287
EE VENUE.
1288
company were greatly increased by the employ-
ment of the houses, and that they were
necessary in order to enable the company to
carry on their business profitably : — Held (the
House of Lords being equally divided in
opinion on the question), that the respondents
were entitled to the deduction claimed. Smith
V. Lion Brewery Co., 80 L. J. K.B. 566;
[1911] A.C. 150 ; 104 L. T. 321 ; 75 J. P. 273 ;
55 S. J. 269; 27 T. L. R. 261; 5 Tax Cas. 568
— H.L. (E.)
Expenses of Tied Houses — Disbursements
or Expenses Wliolly or Exclusively Laid Out
and Expended for the Purposes of Trade or
Business.] — Where a trader acquires a parti-
cular interest in property wholly and exclu-
sively for the purpose of using that interest to
secure a better market for the commodities
which it is his trade to sell, the expenses
which he properly and reasonably incurs in
connection with that property are " expenses
wholly or exclusively laid out for the purposes
of such trade " or business, within the mean-
ing of the Income Tax Acts. Therefore,
where the owners of a brewery business
acquired, by purchase or lease, licensed houses,
the tenants of which were bound by an agree-
ment to purchase from the company all the
liquor which they sold by retail, all expenses
properly incurred in respect of such houses, in
order to promote the sale of the goods supplied
by the company, may be taken into account in
estimating the balance of the profits and gains
on the brewery business. Russell v. Town
and County Bank, Lim. (58 L. J. P.C. 8;
13 App. Cas. 418), and Smith v. Lion Brewery
Co. (80 L. J. K.B. 566; [1911] A.C. 150),
principle applied. Brickwood d Co. v. Rey-
nolds (67 L. J. Q.B. 26; [1898] 1 Q.B. 95)
commented on. Usher's Wiltshire Brewery
V. Bruce, 84 L. J. K.B. 417; [1915] A.C. 433;
112 L. T. 651; 6 Tax Cas. 399; 59 S. J. 144;
31 T. L. R. 104— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 1038; [1914] 2 K.B. 891) reversed. lb.
Profits of a Brewery Company.] — A
brewery company, in the course of, and for the
purpose of, their business, acquired licensed
houses which were let to tenants subject to the
usual tie covenants. The company claimed
that in the computation of their profits as
brewers for assessment under Schedule D the
following expenses incurred in connection with
these tied houses should be allowed : (1) Com-
pensation levy on tied houses ; (2) Premiums
paid by the company for insuring tied houses
against fire ; (3) The differences between the
assessment to Income Tax, Schedule A, in
respect of freehold tied houses or rents of lease-
hold houses on the one hand, and the rents
received from the tied tenants on the other
hand ; (4) Replacement of fixtures and fittings
of tied houses; (5) Repairs to tied houses.
Having regard to the findings in the case,
counsel for the Crown consented to an order
reducing the assessment by the amount of
the deductions claimed. Youngs, Crawshay d
Youngs, Lim. v. Brooke, 6 Tax Cas. 393 —
Hamilton, J.
Profits of Trade — Interest Payable on
Short Loans.] — A company carrying on a
financial and banking business at home and
abroad borrowed money from its foreign
bankers, by whom it was allowed a large
overdraft, and paid interest on the amount so
borrowed, and also from time to time on the
amount of the overdraft : — Held, that in
assessing for income tax the profits and gains
of its business, the company was entitled to
deduct the amount of interest paid to the
bankers on the loan and the periodical amounts
of the overdraft. Farmer v. Scottish North
American Trust, Lim., 81 L. J. P.C. 81;
[1912] A.C. 118; 105 L. T. 833; 28 T. L. R.
142; 5 Tax Cas. 693— H.L. (Sc.)
Payment to Secure Controlling Interest
in Rival Firm.] — S. & L., a firm of tube manu-
facturers, entered into an agreement with W.,
another firm of tube manufacturers, whereby,
in return for the right to nominate a majority
of the directors of W., S. & L. undertook to
pay to W. each half-year such sum as might
be necessary to make up any deficit in the
dividend on W.'s preference shares. In pur-
suance of this agreement, in the year 1904
S. & L. made payments to W. of sums amount-
ing to 841L In estimating their profits for that
year for income tax purposes, S. & L. claimed
to deduct from the profits this sum of 841Z.
The Income Tax Commissioners held that
S. & L. had expended this sum for the pur-
poses of their trade and that they might sell
their goods at a better price, and allowed the
deduction : — Held, that the deduction had been
rightly allowed. Moore v. Stewarts d Lloyds,
Lim., 8 F. 1129; 6 Tax Cas. 501— Ct. of Sess.
Voluntary Levies Wholly Expended for
Purpose of Trade — Levy Paid to Coal Owners'
Association — Deduction of Levy by Individual
Member of Association.] — The funds of a
coal owners' association were derived from
voluntary subscriptions or levies collected by
the association from its individual members,
and were expended (inter alia) on the follow-
ing objects — namely, first, expenses of the
Conciliation Board; secondly, subscriptions to
the Mining Association of (jreat Britain ; and
thirdly, experiments on the explosive pro-
perties of coal dust made at the request of the
Government : — Held, that an individual mem-
ber of the association, in stating the profits of
his business for the purpose of income tax,
was entitled to deduct that proportion of the
levy paid by him to the association which
related to the first of the above objects, but
not the proportions relating to the second or
third, in respect that a payment towards the
first of these objects was, whereas a payment
to either of the latter was not. one which, had
it been made by the individual member
directly, could have properly been deducted by
him as money wholly expended for the purpose
of his trade. Lochgelly Iron and Coal Co. v.
Inland Revenue, [1913] S. C. 810; 6 Tax Cas.
267— Ct. of Sess.
Voluntary Association of Traders for
Maintaining Prices — Contributions Paid by
Member to Association.] — A firm of iron-
1289
EEVENUE.
1290
founders, members of a trade association whose
object under its rules and regulations was to
keep up and raise the prices of the products sold
by its members, claimed the right to deduct
from the return of the profits of their business
for the purpose of income tax their contribu-
tions to the association, as being moneys
wholly and exclusively expended by them for
the purposes of their trade : — Held, that, in
order to establish that the contributions were
moneys so expended, it was not sufficient for
the firm to prove that they had paid the con-
tributions to the association, and to produce
the rules and regulations of the association,
but that they must produce to the Special
Commissioners the accounts of the association
in order that the Special Commissioners might
ascertain from them how the contributions
had, in fact, been expended. Grahamston
Iron Co. V. Inland Revenue. [1915] S. C. 536
— Ct. of Sess.
Expense of Promoting Parliamentary
Bill for Construction of Railway to Increase
Traffic Facilities.] — Coalmasters owning mines
in a certain district, having failed to obtain
satisfactory railway facilities from the only
railway company owning lines in that district,
promoted tw^o Parliamentary Bills for authority
to construct a line to serve the coal-field. The
Bills were opposed by the railway company,
and, upon that company giving a parliamen-
tary obligation to provide the facilities
required by the promoters, the Bills were by
consent thrown out. In estimating profits for
income tax purposes one of the coalmasters
claimed as a deduction the expenses incurred
by him in connection with the promotion of
these bills : — Held (Lord Johnston dissent-
ing), that these expenses did not fall to be
deducted; per the Lord President, in respect
that they were capital, and not revenue,
expenditure; per Lord Skerrington, in
respect that they were not " money wholly
and exclusively laid out or expended for the
purposes of " the coalmaster's trade. Moore if
Co. V. Inland Revenue, [1915] S. C. 91;
6 Tax Cas. 345— Ct. of Sess.
Retirement of Law Reporter — Grant of
Gratuity — " Money wholly and exclusively
laid out" for Purposes of Trade — Finding of
Fact.] — The question whether a gratuity paid
by the Incorporated Council of Law Repoi'ting
to one of their reporters upon his retirement
is allowable as a deduction in calculating the
profits of the council for the purposes of income
tax as being " money wholly and exclusively
laid out or expended for the purposes of " their
trade is a question of fact for the Income Tax
Commissioners to decide, and no appeal lies
from their decision. Smith v. Incorporated
Council of Law Reporting, 83 L. J. K.B. 1721 ;
[1914] 3 K.B. 074: 111 L. T. 848; 6 Tax Cas.
477; 30 T. L. H. 5S8--Scrutton, J.
Land Owned and Used by Trader for
Purposes of Trade — Annual Value.] —
Scliednjf D and section 100 of the Income Tax
Act, 1842, provide by Case I. rule 1, and
Cases I. and II. rules" 1 and 2, that the duty
to be charged in respect of any trade shall be
computed on a sum not less than the full
amount of the balance of profits and gains of
such trade upon a fair and just average of
three years, ending either on such day of the
year immediately preceding the year of assess-
ment on which the accounts of the trade shall
have been usually made up or on April 5
preceding the year of assessment ; that in
estimating such balance of profits and gains
no sum shall be set against or deducted from
such profits and gains for any disbursements
or expenses whatever not being money wholly
and exclusively laid out or expended for the
purposes of such trade ; and that the computa-
tion of the duty to be charged in respect of
any trade shall be made exclusive of the profits
or gains arising from lands, tenements, or
hereditaments occupied for the purpose of such
trade. Section 9 of the Finance Act, 1898, in
effect provides that where in estimating the
amount of annual profits or gains arising from
any trade chargeable to income tax under
Schedule D any sum is deducted on account
of the annual value of the premises used for
the purposes of such trade, the sum so deducted
shall not exceed the amount of the assessment
of the premises for the purposes of income tax
under Schedule A to the Income Tax Act,
1842, as reduced for the purpose of collection
under section 35 of the Finance Act, 1894. A
trading company were the owners of certain
freehold and leasehold property which they
used exclusively for the purposes of their busi-
ness. They were assessed by the Commis-
sioners under Schedule D of the Income Tax
Acts for the year ending April 5, 1912, the
annual value of the freeholds and leaseholds
as represented by the assessment under
Schedule A in each of the three previous
years being deducted from the profits of each of
the said years before striking the average. The
amount assessed for this property under
Schedule A for the year of assessment (the
year ending April 5, 1912) was larger than in
the previous years, and the company claimed
that the average profits for the three previous
years should be ascertained without the deduc-
tion of the amount of the assessment under
Schedule A in each of these years, and that
from the amount of such average profits the
amount of the assessment under Schedule A
for the year of assessment should be deducted :
— Held, that the method of assessment adopted
by the Commissioners was the right method,
and that the contention of the company was
erroneous. Russell v. Town and County Bank
(58 L. J. P.C. 8: 13 App. Cas. 418) followed.
General Hydraulic Power Co. v. Hancock,
83 L. J. K.B. 906: [1914] 2 K.B. 21;
111 L. T. 251: 6 Tax Cas. 445; 30 T. L. R.
203— Scrutton, J.
Value of Standing Timber Cut during
Year.] — A conqiany occupymg land, and
carrying on the business of saw millers and
timber merchants is not entitled in its assess-
ment for income tax to deduct from the gross
proceeds of its business the value of the stand-
ing timber cut during the year of assessment.
Kauri Timber Co. v. Commissioner of Taxes,
83 L. J. P.C. 6: [1913] A.C. 771; 109 L. T.
22; 29 T. L. R. 671— P.C.
1291
REVENUE.
1292
Mining Company — Main Shaft.] — A
mining company claimed to be allowed as a
deduction the cost of deepening a main shaft,
the bodies of ore accessible from the original
level having been practically worked out : —
Held, that there was no evidence on which the
opinion of the Commissioners, that the expen-
diture was proper working costs, could be
supported, and that the deduction could not be
allowed. Bonner v. Basset Mines, 108 L. T.
764; 6 Tax Cas. 146— Horridge, J.
Profits Earned by Letting Furnished
House — Expense of Renting House Else-
where.]— A lady made a profit by letting her
furnished house for two months, and when
assessed for income tax thereon claimed to
deduct the rent of another house which she
had taken to reside in during that period : —
Held, that this rent was not an expense
necessarily incurred in earning the profit, and
accordingly that the deduction should be dis-
allowed. Wylie V. Inland Revenue, [1913]
S. C. 16 ; 6 Tax Cas. 128— Ct. of Sess.
Wear and Tear — Unexhausted Deduc-
tions— Purchase of Old Company by New Com-
pany— Right of New Company to Unexhausted
Deductions.] — A new company having pur-
chased as a going concern the business of an
old company was assessed for income tax on
the average profits of the old company for
the three years preceding the purchase. The
amount of deductions for wear and tear to
which the old company was entitled during
these three years had not been given effect to
in full owing to the fact that they exceeded
the amount of the taxable income of the old
company during that time : — Held, that the
new company was entitled to deduct from its
taxable income the balance of the deductions
allowable to the old company. Scottish Shire
Line v. hiland Revenue, [1912] S. C. 1108;
6 Tax Cas. 91— Ct. of Sess.
Firm of Shipbuilders — Channel from
Works to Sea — Duty to Dredge on Harbour
Authority — Neglect of Such Duty — Channel
Rendered Useless thereby — Construction of
Deep Water Berth — Expenditure by Ship-
builders — Capital Expenditure or Income
Expenditure.] — The respondents, a firm of
shipbuilders and engineers, began business at
Barrow-in-Furness in 1896. Access from their
works to the sea was by a channel. The
Furness Railway Co. were the harbour
authority, and as such had all statutory powers
for dredging and keeping this channel clear at
a certain width and depth. Subsequent to 1896
the harbour authority so neglected maintaining
the channel that it began to silt up until it was
becoming no longer possible for such vessels
as could with safety get from and into the
respondents' works in 1896 to continue to do
so. The harbour authority admitted their
liability to maintain the channel, but found
themselves unable to perform their obligation.
The respondents and the harbour authority
thereupon agreed to complete a lesser and
cheaper scheme which would not completely
restore the channel to its condition in 1896,
but would make it sufficiently navigable. This
scheme was the construction of a deep water
berth. The work was carried out in 1913, and
was paid for by the respondents and the
harbour authority, the respondents contributing
to the expense thereby incurred 97,431L The
harbour authority undertook the future main-
tenance of the work. Had this expenditure not
been incurred by the respondents they would
not have been able to deliver a battleship to the
British Government. The expenditure enabled
them to earn the profits to which they were
assessed to income tax. On the ground that
this sum of 97,431Z. was income expenditure
the respondents claimed to deduct it from their
gross profits of the year 1912, before ascei'-
taining the profits for that year, which were
to be used in calculating the average profits
for three years upon which they were charge-
able for the year ending April 5, 1914 : — Held,
that the expenditure was capital expenditure,
and that the respondents' claim must therefore
be disallowed. Ounsicorth v. Vickers, Lim.,
84 L. J. K.B. 2036; [1915] 8 K.B. 267:
31 T. L. R. 530— Rowlatt, J.
Stallions Kept for Breeding Purposes —
Diminished Value by Reason of Age — " Plant "
— " Diminished value by reason of wear and
tear."] — By section 12 of the Customs and
Inland Revenue Act, 1878, the Income Tax
Commissioners " shall, in assessing the profits
or gains of any trade, . . . allow such deduc-
tion as they may think just and reasonable
as representing the diminished value by reason
of wear and tear during the year of any
machinery or plant used for the purposes of
the concern, ..." The appellant had two
stallions in his stud farm which earned fees
by serving the mares of other owners. In
ascertaining the amount of profits assessable
to income tax the appellant claimed as a
deduction the annual amount of depreciation
in the value of the stallions owing to their
increase in age : — Held, that the fact that
at the end of each year the stallions were of
less value, inasmuch as they were one year
nearer the end of their lives, did not entitle
the appellant, under section 12 of the Customs
and Inland Revenue Act, 1878, to the deduc-
tion claimed in respect of the diminished
value of plant by reason of wear and tear
during the year. Derby (Earl) v. Aylmer,
84 L. J. K.B. 2160; [1915] 3 K.B. 374;
31 T. L. R. 528— Rowlatt, J.
Premiums — Life Insurance — Double En-
dowment Assurance.] — A policy of insurance
whereby an insurance company agrees, in con-
sideration of the payment of annual premiums
by the assured, to pay 1001. to his legal per-
sonal representatives if he dies before a
specified date, or to pay 200Z. to the assured
himself if he survives that date, is an " insur-
ance on his life " within the meaning of sec-
tion 54 of the Income Tax Act, 1853; and the
assured is therefore entitled to deduct the
whole amount of the annual premium from
his profits and gains in respect of which he is
liable to be assessed to income tax under
Schedule D. Dictum of Channell, J., in
Prudential Assurance Co. v. Inland Revenue
Commissioners (73 L. J. K.B. 734; [1904]
1293
REVENUE.
1294
2 K.B. Go8. 663, 664), that the events against
which an insurance could be effected must
necessarily be " adverse," disapproved. Gould
V. Curtis", 82 L. J. K.B. 802; [1913] 3 K.B.
84; 108 L. T. 779; 6 Ta.x Cas. 293; 57 S. J.
461 ; 29 T. L. H. 469— C.A.
Decision of Hamilton, J. (81 L. J. K.B. 634:
[1912] 1 K.B. 685), affirmed. lb.
Mortgage — Sinking Fund.] — A company
was empowered by Act of Parliament to raise
money upon mortgage for the purpose of
carrying out a Government contract, but was
required by the same Act to establish a sinking
fund for the extinction of the mortgage debt.
A sum was to be set aside for payment into
the sinking fund out of each quarterly payment
received under the contract or out of other
moneys belonging to the company : — Held,
following the decision in Mersey Docks and
Harbour Board v. Lucas (53 L. J. Q.B. 4:
8 App. Cas. 891), that the sums thus set aside
are not allowable as a deduction in arriving at
the company's assessable profits. City of
Dublin Steam Packet Co. v. O'Brien,
6 Tax Cas. 101— K.B. D. (Ir.)
Failure to make Proper Return — "Dis-
covery" by Surveyor — Person Charged — Dis-
pute of Liability — Remedy.] — By section 52
of the Taxes Management Act, 1880, '• If the
surveyor discovers that any properties or
profits chargeable to the duties [of income tax]
have been omitted from such first assessments.
or that any person so chargeable has not made
a full and proper or any return, or has not
been charged to the said duties . . . then . . .
as regards the duties chargeable under
Schedule D of the Income Tax Acts, the
Additional Commissioners shall at any time
after the said first assessments have been
signed and allowed, but within four months
after the expiration of the year to which such
first assessments relate, make an assessment
on any such person in an additional first
assessment in such sum as according to their
judgment ought to be charged on such person,
subject to objection by the surveyor and to
appeal " -.—Held, that the word " discovers "
in the above enactment is satisfied if the
surveyor honestly arrives at the conclusion,
based upon the material before him, that the
person sought to be charged has not made a
full and proper return under Schedule D, and
the section is not limited in its operation to a
person who in fact and in law is chargeable to
the duties. Rex v. Bloomsbury Income Tax
Commissioners; Hooper, Ex parte, 85 L. J.
K.B. 129; [1915] 3 K.B. 768; 31 T. L. R. 565
— D.
If there is before the surveyor information
on which he could and did honestly believe the
person to be liable to the duties, then, although
the surveyor may be mistaken in his " dis-
covery," the only remedy is an appeal under
section 57, sub-section 3 of the Act to the
General Commissioners, subject to a Case
stated by them, and the person charged cannot
obtain a writ of prohibition to the Commis-
sioners from acting or proceeding upon the
assessment. lb.
3. When Deductible.
See also Vol. XII. 163. 1248.
Deduction at Source after Resolution ot
Committee of House of Commons, but before
Passing of Act.] — On a motion for an inter-
locutory injunction to restrain the Bank of
England from deducting income tax from a
dividend payable to the plaintiff on his Irish
Land Stock before the Act imposing such tax
has been passed, but after the passing of a
resolution of the "Ways and Means Committee
of the House of Commons which specified the
rate at which such tax would be levied, on the
defendants undertaking to pay the amount of
the tax into Court to abide the order of the
Court no order was made on the motion.
Bowles V. Bajik of England {No. 1), 56 S. J.
651— Parker, J.
A resolution of the Committee of the House
of Commons for Ways and Means, either alone
or when adopted by the House, does not
authorise the Crown to levy on the subject an
income tax assented to by such resolution,
but not yet imposed by Act of Parliament.
Boicles V. Bank of England (No. 2), 82 L. J.
Oh. 124; [1913] 1 Ch. 57; 108 L. T. 95;
6 Tax Cas. 136; 57 S. J. 43: 29 T. L. R. 42 —
Parker, J.
Although section 30 of the Customs and
Inland Revenue Act, 1890, keeps alive tlie
machinery of the Income Tax Acts and enables
the officials charged with the collection of in-
come tax to carry out all the preliminary work
necessary for the collection and assessment of
any income tax which may be imposed for any
financial year, it does not authorise any assess-
ment or collection of income tax not yet im-
posed by Act of Parliament. Held, accordingly,
that the Bank of England were not entitled
to deduct any sum in respect of income tax
from dividends due on Government stock
before income tax for the current financial year
had been imposed by Act of Parliament. lb.
Profits and Gains Brought into Charge —
Undertakings of Corporation — Interest on
Loans. — A person assessed to income tax can
retain the tax which he has deducted from
the interest paid to a creditor only if the
interest is effectively charged upon, and is
lawfully payable out of, the taxable income.
Sugden v. Leeds Corporation, 83 L. J. K.B.
840; [19141 A.C. 483; 108 L. T. 578; 77 J. P.
225; 11 L. G. R. 662; 6 Tax Cas. 211; 57 S.J.
425; 29 T. L. R. 402— H.L. (E.)
The respondents were a municipal corpora-
tion under the Municipal Corporations Act,
1882, and in accordance with the provisions of
that statute they provided a " borough fund,"
in aid of which they were empowered to make
a " borough rate." They were also an urban
sanitary authority, and their expenses as such
were payal)le out of a "consolidated fund"
maintained by a " consolidated rate " levied
under statutory authority, but not upon the
same basis as the borough rate. As a nninicipal
corporation they were the owners of certain
undertakings in respect of which they had
received loans, the interest on which was
charged on the proceeds of the undertakings,
which were paid into the borough fund, and
1295
REVENUE.
1296
they paid income tax on such receipts. As a
sanitary authority they were the owners of
other undertakings, the proceeds of which were
paid into the consolidated fund in a similar
manner. The proceeds of these latter under-
takings were not sufficient to pay the interest
due on the loans raised in respect of them, and
the respondents transferred a sum from the
borough fund to meet the deficiency : — Held,
that, as it was not lawful to pay such charges
out of that fund, the respondents were bound
to account for the income tax which they had
deducted from the interest or dividends so
paid, and that their position was not affected
by the provisions of the Leeds Corporation
(General Powers) Act, 1901. lb.
London County Council v. Att.-Gen. (70 L. J.
K.B. 77; [1901] A.C. 26) and Att.-Gen. v.
London County Council (76 L. J. K.B. 454;
[1907] A.C. 131) discussed and explained. lb.
Covenant to Pay Annuity.] — By his mar-
riage settlement the husband covenanted that
if during the widowhood of his wife the income
of his wife's trust fund in any year should not
amount to the clear annual sum of 2,000Z. his
executors should in every such year pay to his
widow such a sum as would make up the
income to 2,000Z. : — Held, that the executors
were entitled to deduct income tax on the
amount bv which the income of the wife's
trust fund'fell short of 2,000L Cooper's Estate,
In re, 55 S. J. 522— Eve, J.
Purchase of Tramway Undertaking by Local
Authority — Purchase Price Raised by Loan —
Sinking Fund — Lease of Tramway to Another
Local Authority — Rent to be Sufficient to Pay
Half-yearly Instalment of Interest and Capital
of Loan/ — A local authority purchased a
tramway undertaking, having raised the pur-
chase money by means of a loan, which was
repayable by half-yearly instalments of prin-
cipal and interest extending over a period of
thirty years, and then let the undertaking to
another local authority under an agreement
which provided that the rent should be such
a sum as should enable the lessor authority to
repaj- the principal and interest of the loan by
half-yearly instalments within thirty years.
The lessee authority claimed to be entitled to
deduct income tax from the whole of the
amount of the half-yearly rent paid by them
under the agreement, while the lessor con-
tended that the rent should be such a sum as
would be sufficient, after deducting income
tax. to pay the actual interest and instalment
of the capital of the loan : — Held, that upon
the true construction of the agreement, and
having regard to section 40 of the Income Tax
Act. 1853, the lessee authority was entitled to
deduct the income tax from the rent. Sur-
biton Urban Council v. Callender's Cable Co.
(B L. G. R. 244; 74 J. P. 88) followed. Poole
Corporation v. Bournemouth Corporation,
103 L. T. 828; 75 J. P. 13— Neville, J.
Corporation — Improvement Expenses — Ap-
portionment on Owners of Property — Interest
on Unpaid Balance — Deduction of Income Tax
— "Yearly interest of money. ""^The plain-
tiffs as the urban sanitary authority of a
borough in the exercise of their powers under
section 150 of the Public Health Act. 1875, and
under their local Act, had duly paved and
otherwise dealt with various streets in the
borough. The expenses of such paving and
other works had from time to time been appor-
tioned amongst the owners of property fronting
on such streets, one of whom was the defen-
dant. Pursuant to section 32 of their local
Act, they allowed him time for the payment
of his share of these expenses and they fixed
the rate of interest payable thereon at 5 per
cent, per annum. The defendant from time
to time paid to the plaintiffs various sums on
account, which they credited in the first place
to the interest due and in the second place
towards repayment of principal, but the
accounts of the plaintiffs shewed that these
payments had not been made at regular times
nor in fixed amounts. The defendant, upon
paying off the balance due in respect of prin-
cipal and interest, claimed to be entitled to
deduct income tax from the interest as being
yearly interest of money within the meaning
of section 40 of the Income Tax Act, 1853 : —
Held, that the interest which the plaintiffs
received was not such as would make the words
" yearly interest of money " in section 40
of the Income Tax Act, 1853, applicable to it.
and that the defendant had failed to discharge
the burden of shewing that he had a right to
make the deduction claimed. Gateshead Cor-
poration V. Lumsden, 83 L. J. K.B. 1121:
[1914] 2 K.B. 883 ; 111 L. T. 26 ; 78 J. P. 283 ;
12 L. G. R. 701; .58 S. J. 453— C. A.
Lease of Minerals — Royalties with Mini-
mum Rent — Lessees not in Actual Occupation
— Deduction of Income Tax from Minimum
Rent — Assessment of Lessor. 'i — The appellant
demised to a coal company all the minerals
under a certain piece of land at a royalty to
be measured by the quantity of mineral gotten.
but the lease provided for the payment of a
minimum yearly rent of 60/., with a provision
for distress. The surface was let for agricul-
tural purposes to another tenant, who was
assessed to the income tax in respect thereof.
No work was done by the company on these
minerals, and they were not assessed in respect
of them. Before paying the 60Z. to the appel-
lant, the company deducted the income tax
thereon, claiming a right to do so either under
section 102 of the Income Tax Act, 1842, or
under section 24, sub-section 3 of the Customs
and Inland Revenue Act, 1888. The appellant
was assessed to income tax in respect of this
60/. : — Held, that the company were not
entitled to deduct the tax, and that the appel-
lant was properly assessed under section 60.
Schedule A. No. II. rule 6 of the Act of 1842.
in respect of profits arising from lands or
hereditaments not in his actual possession or
occupation. Hill v. Gregory, 81 L. J. K.B.
730; [1912] 2 K.B. 61: 106 L. T. 603; 6 Tax
Cas. 39— Hamilton, J.
4. Repayment.
See also Vol. XIL 166. 1251.
Schedules C and D — Married Woman Living
with Husband — Interest on Shares and
Foreign Bonds — Deduction of Income Tax at
1297
REVENUE.
1298
Source — Right to Repayment.] — Section 45 of
the Income Tax Act, 1842, which enacts that
the profits of a married woman living with
her husband shall be deemed his profits and
shall be charged in his name, only applies to
the case of the direct assessment to Income
Tax of the taxpayer, and not to the case of
deduction at source. Hence, where a married
woman living with her husband held to her
separate use shares in a limited company and
also foreign bonds from the dividends on which
income tax was deducted at source by virtue
of section 54 of the Income Tax Act, 1842,
and section 2 of the Income Tax (Foreign
Dividends) Act, 1842, the married woman had
no right to repayment of the tax from the
Treasurv. Purdie v. Regem, 83 L. J. K.B.
1182; [1914] 3 K.B. 112; 111 L. T. 531;
30 T. L. R. 553— Eowlatt J.
5. Appeal from Assessment.
See also Vol. XII. 168, 1251.
Application to Amend Assessment and for
Relief — "Appeal" — Power of Commissioners
to State Case.] — An application to Commis-
sioners under section 134 of the Income Tax
Act, 1842, for an amendment of an assess-
ment to Income Tax (Schedule D) and for
relief on the ground of loss of the profits on
which the computation of duty was made is
not an " appeal," and consequently the Com-
missioners have no power to state a Case for
the opinion of the High Court under section 59,
sub-section 1 of the Taxes Management Act,
1880. Furtado v. City of London Breicery Co..
83 L. J. K.B. 255; '[1914] 1 K.B. 709;
110 L. T. 241 ; 6 Tax Cas. 882 ; 58 S. J. 270 ;
30 T. L. E. 177— C. A.
c. Public Office or Employment of Profit.
See alsn Vol. XII. 1(;S, 1251.
Employment Abroad by English Company —
Remuneration Partly Paid in England — Em-
ployment under "department."] — "Public
offices and employments of profit " in the
United Kingdom within section 146, Sche-
dule E, rule 3 of the Income Tax Act, 1842,
are public offices or employments which are
exercised in the United Kingdom. Therefore,
a person who is in the employment of an
English limited company whose head office is
in ]<2ngland. but who exercises his employment
wholly outside the United Kingdom, does not
come within that rule, nor is he employed in
a "department" in the sense in which that
term is used in section 147 of the Income Tax
Act, 1842. so as to make his office one exercised
constructively at the head office of the company
in Great Britain. Such a person is therefore
not taxable under Schedule E, rule 3, in
respect of his employment so exercised abroad.
Pickles V. Fo.ster. 82 L. J. K.B. 121; [1913]
1 K.B. 174; 108 L. T. 106; 20 Manson, 106";
6 Tax Cas. 131; 29 T. L. R. 112-Horridge, J.
Additional First Assessment — Notice —
Manager of Company— Place of Abode.]— The
provision of section 80 of the Income Tax Act,
1842, that so soon as the assessments for any
parish or place are allowed and signed the
Commissioners shall give notice thereof and of
the day for hearing appeals therefrom in the
manner therein provided, is extended to assess-
ments under Schedule E by section 188, and
applies to an additional first assessment made
by the Commissioners under the powers con-
ferred on them by section 52 of the Taxes
Management Act, 1880. By section 16 (e) of
the latter Act, " All notices or forms required
or allowed to be served on any person may be
either delivered to such person or left at the
usual or last known place of abode of such
person." The plaintiff was employed as the
manager of a limited company which had its
office in the City of London. The plaintiff
resided at Wealdstone, and very rarely attended
at the company's office. Income tax notices
were sent to the plaintiff directed to the office
of the company, but none of them ever reached
him. A distress having subsequently been
levied upon goods at the plaintiff's private
residence for non-payment of the income tax.
— Held, that there is no rule of law that the
manager of a company must be taken to have
a statutory abode at the office of the company
by which he is employed, that under the cir-
cumstances the office of the company was not
the plaintiff's " usual or last known place of
abode," and that the distress was therefore a
wrongful one. Berry v. Farrow, 83 L. J. K.B.
487; [1914] 1 K.B. 632; 110 L. T. 104;
30 T. L. R. 129— Bankes, J.
II. SUPER-TAX.
Special Commissioners — Power to Demand
Returns for Assessments before Super-tax
Imposed for the Year.] — The super-tax on
incomes over 5,000L a year first imposed by
the Finance (1909-10) Act, 1910. for the year
commencing April 6, 1909. is additional income
tax, and one of the " duties of income tax "
within the meaning of section 30 of the
Customs and Inland Revenue Act, 1890.
Boicles V. Att.-Gen., 81 L. J. Ch. 155; [1912]
1 Ch. 123 ; 105 L. T. 870 ; 76 J. P. 57 ; 56 S. J.
176; 28 T. L. R. 137; 5 Tax Cas. 685—
Parker, J.
The Commissioners of Income Tax for
Special Purposes are therefore legally entitled
to demand returns for the purposes of assess-
ment of the super-tax, even though no Act
has been passed imposing such tax for the
current year. But qitcrre whether they could
assess and demand payment of the super-tax
before it is actually imposed. Ih.
Although by section 66 of the Finance (1909-
1910) Act, 1910, super-tax was only imposed
for the year beginning April 6. 1909, it is
shewn conclusively by section 72, sub-section 3,
that the Act is not intended to regulate the
collection of super-tax for that single year
only, but also its collection for subsequent
financial years. lb.
Super-tax was imposed for the year begin-
ning April 6, 1910, bv section 3 of tlie Finance
Act, 1910. The Revenue Act. 1911, which
was passed on March 31, 1911. although con-
taining provisions as to super-tax, did not
impose any such tax for the year beginning
.\pril 6, 1911. Before any Act imposing super-
1299
REVENUE.
1300
tax for that year has been passed the Com-
missioners of Income Tax caused to be sent
to the plaintiff a demand for a return of his
income under section 72, sub-section 2 of the
Finance (1909-10) Act, 1910, for the purpose
of assessing the tax. The plaintiff contended
that in the circumstances the defendants had
no power to demand the return : — Held, that
the Commissioners had power to demand the
return. 76.
Trade Profits — Three Years' Average — Sale
of Business — Discontinuance.] — In making an
assessment to super-tax under section 66 of
the Finance (1909-10) Act, 1910, the Commis-
sioners should consider the amovnit of the
profits derived from his trade by the person
to be charged during the year preceding the
assessment, taking the average of his profits
for the three years preceding, and not the
actual profits made in that year. Bartlett v.
Inland Revenue Commissioners, 84 L. J.
K.B. 106; [1914] 3 K.B. 686; 111 L. T. 852—
Scrutton, J.
The fact that he has sold his business within
the year to a company does not amount to a
discontinuance within section 24, sub-section 3
of the Finance Act, 1907. lb.
Where, upon an appeal against an assess-
ment to super-tax, the appellant does not
dispute that the amount of his profits for the
particular year, ascertained upon a three years'
average, is correctly stated in an assessment to
income tax made upon him under Schedule D.
the Special Commissioners are entitled to
adopt such assessment in arriving at the
assessment to super-tax, and are not bound to
take evidence upon the point. lb.
Assessment by General Commissioners —
How far Binding on Special Commissioners in
Assessing Super-tax,] — The Special Commis-
sioners for Income Tax must, if required,
themselves estimate the total income of the
taxpayer for super-tax, and are not bound
under section 66, sub-section 2 of the Finance
i'1909-lO) Act, 1910, to accept as conclusive on
tlicm an assessment made under Schedule (D)
of the Income Tax Act, 1842, by the General
Commissioners. Inland Revenue Com,mission-
ers y. Brooks, 84 L. J. K.B. 404 ; [1915] A.C.
478; 112 L. T. 523; 59 S. J. 160; 31 T. L. E.
89-H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 431; [1914] 1 K.B. 579) affirmed. lb.
Principle of Assessment on Partner in
Firm.] — Tiie Income Tax Commissioners, in
estimating the total income of a partner in a
firm during a certain year for the purposes of
super-tax, under section 66, sub-section 2 of
the Finance (1909-10) Act, 1910, having
ascertained the profits of the firm for the pre-
vious year, in accordance with the provisions
of the Income Tax Acts, upon the average of
three years preceding the year of assessment,
calculated on this basis the share to which
the partner was entitled during the year in
question : — Held, that the Commissioners had
estimated the share to which the partner was
entitled during the year in question in the
partnership profits upon the correct principle,
and that the partner was not at liberty to
shew the actual income from the profits of the
firm which he bad received during the year.
Gaunt V. Inland Revenue Commissioners,
82 L. J. K.B. 1131; [1913] 3 K.B. 395;
109 L. T. 555— Horridge, J.
Deductions — Farming Losses — Losses not
Claimed as Deductions from Income Tax.] — A
taxpayer, in making a return of his income of
the previous year for the purposes of the
super-tax, was held entitled to claim as deduc-
tions losses sustained in husbandry, although
those losses had not been claimed as deductions
from his income tax, and although his claim
was not made within six months after the year
of assessment. Hill v. Inland Revenue,
[1912] S. C. 1246— Ct. of Sess.
III. INHABITED-HOUSE DUTY.
See also Vol. XII. 171, 1255.
House " divided into, and let in, different
tenements."] — A house is " divided into, and
let in, different tenements " w"ithin the mean-
ing of section 13 of the Customs and Inland
Eevenue Act, 1878, and is entitled to the
relief from assessment to inhabited-house duty
thereby given, when rooms, or groups of
rooms in it, are separated from the rest of
the house and let for some purpose not com-
mon to the rest of the house, even though
the tenants of the separate tenements use some
other parts of the house in common. Farmer
V. Cottons Trustees, 84 L. J. P.C. 137;
[1915] A.C. 922; 113 L. T. 657; 59 S. J. 611;
31 T. L. K. 478— H.L. (Sc.)
Judgment of the Court of Session in
Scotland, sub nom. Cotton's Trustees v.
Inland Revenue ([1913] S. C. 1126) affirmed
(Lord Sumner dissenting). lb.
Public School — Residential Buildings —
Separate Class Rooms.] — Buildings belonging
to a public scliool, and consisting of class
rooms, library, carpenter's shop, gymnasium,
lavatories, &c., which were not used for resi-
dential purposes at all, and had no internal
communication with any buildings occupied for
residential purposes, and were used by all the
boys of the school, of whom only a small pro-
portion resided in the residential buildings,
— Held, not to be " offices belonging to and
occupied with any dwelling-house," within
Rule II. of Schedule (B) of the House Tax
Act, 1808, and therefore not liable to be
assessed with the residential buildings to
inhabited-house duty under the House Tax
Act, 1851. Westminster School v. Reith,
84 L. J. K.B. 168; [1915] A.C. 259; 112 L. T.
91 ; 6 Tax Cas. 486 ; 59 S. J. 57 ; 31 T. L. R.
31— H.L. (E.)
Decision of the Court of Appeal (82 L. J.
K.B. 861 ; [1913] 3 K.B. 129) reversed (Lord
Parmoor dissenting). 76.
"Charity school."] — Ackworth School
was established in 1779 by subscriptions
collected from members of the Society of
Friends, for the education of children who
were members of the society in Great Britain
whose parents were not in affluence. The
1301
EEVENUE.
1302
rules of the school provided that when the
school was not full there should be eligible
for admission at the discretion of the con-
trolling committee, children from beyond the
limits of Great Britain being members of the
society, failing whom, children closely con-
nected with the society, or failing whom,
children not in the membership of the society.
The object of the school was to train up the
children in the principles and practices of the
Christian religion as professed by the Society
of rriends, and to impart to them a sound
English education. The school was supported
by substantial fees paid by the parents of the
children, by the income arising from its
invested property, by annual subscriptions and
other donations and legacies, and was under
the direction of a general meeting appointed
by the society. To assist those members of
the society who were unable to provide the
whole of the fees, bursaries were granted in
some cases. Bursaries were restricted to
members of the society, excepting that the
committee might grant certain bursaries to
children closely connected with the society.
The religious views of the society were taught,
but no effort was made to bring into the
society the children of parents who were not
members of the society. At the end of 1910
the school was full on both sides, there being
181 boys and 122 girls— 303 in all. 12,000L
out of rather less than 14,000Z., the income
received by the school during 1910, was
derived from fees. The school was recognised
as an efficient secondary school by the Board
of Education, but never received any grants
therefrom : — Held, upon these facts, that
(a) the school was not a " public school "
within the meaning of section 61, No. 6. of
Schedule A of the Income Tax Act^ 1842,
and as such exempt from payment of income
tax; and (b), that it was not a "charity
school " within the meaning of Case IV. of
the exemptions to Schedule B of the House
Tax Act, 1808. Ackivorth School v. Belts,
84 L. J. K.B. 2112-Rowlatt, J.
IV. LAND TAX.
See also Vol. XII. 179, 1264.
Redemption of Land Tax — Land Abutting
on Highway — Exoneration ad Medium Filum
— Presumption.] — Where a parcel of land is
described, or shewn on a plan, as bounded by
a highway it is to be presumed that it is in-
tended that the parcel should go up to the
actual boundary on that side — that is, under
ordinary circumstances, ad medium filum vice.
Therefore, where the land tax lias been re-
deemed on lands or houses which abut upon a
public street or highway, the exoneration
extends to the middle line of such street or
highway, in the absence of an express state-
ment to the contrary. Land Tax Commis-
sioners V. Central London Railwaii, 82 L. J.
Ch. 274; [1913] A.C. 3.')4 ; 108 L. T. 690;
77 J. P. 289; 11 L. G. K. 693; 57 S. J. 403;
29 T. L. R. 39.5— H.L. (E.)
Decision of the Court of Appeal (81 L. J.
Ch. 20; [1911] 2 Ch. 467) affirmed. 76.
V. TAXATION OF LAND VALUES.
1. Valuation.
Form i — Owner and Occupier — Validity.] —
A notice to the owner of land to make a return
under section 26, sub. section 2 of the Finance
(1909-10) Act, 1910, within less than the
thirty days there specified is invalid, and
imposes no obligation on the owner to do so.
A notice is not invalid under section 26, sub-
section 2, merely because it requires the
return to be made to an officer of the Com-
missioners without giving the owner an option
to make it to the Commissioners. Dyson v.
Att.-Gen., 81 L. J. K.B. 217; [1912] 1 Ch.
158; 105 L. T. 753; 28 T. L. R. 72— C. A.
Requisition (i) in form 4 requiring any
person who is both owner and occupier to state
"the annual value — i.e. the sum for which
the property is worth to be let to a yearly
tenant, the owner keeping it in repair," is
unauthorised by section 26, sub-section 2, and
renders the whole form invalid. lb.
Form 8 — Validity.] —Section 31 of the
Finance (1909-10) Act, 1910, is directed to
enabling the Inland Revenue Commissioners
to ascertain the names of persons who pay rent
or who as agents for others receive rent in
respect of any land. The Commissioners may
in respect of any specific land require from
a person who pays rent for such land the name
and address of the person to whom he pays it,
and from a person who as agent for another
receives any rent in respect of such land the
name and address of the person on whose
behalf he receives such rent, but the enquiries
must be in respect of a specific parcel of
land. A form asking for such information in
respect of unspecified land is meaningless, and
makes a demand that the form should be filled
up unauthorised and void. Burghes v.
Att.-Gen., 81 L. J. Ch. 105; [1912] 1 Ch.
178; 105 L. T. 758; 28 T. L. R. 72— C.A.
It is not ultra vires on the part of the Com-
missioners to require returns under section 31
to be sent to an appointed local officer instead
of to themselves. lb.
Per Farwell, L.J. : A requisition to make
a return under section 31 within less than
thirty days from its receipt is not within
the powers of the Commissioners, and is a
nullity. lb.
Decision of Warrington, J. (80 L. J. Ch.
506; [1911] 2 Ch. 139), affirmed. lb.
Form 5 — Legality.] — On a claim by the
plaintiff for a declaration that Form 5 issued
bv the Commissioners of Inland Revenue
under section 20 of the Finance (1909-10) Act.
19i0, was illegal, unauthorised, and ultra vires,
and that he was under no obligation to comply
with the requisitions contained therein, the
Commissioners, being of opinion that I'^orm 6
could not be supported, consented to an order
being made following the form made in Dijson
V. Att.-Gen. (81 L. J. Ch. 217; [1912] 1 Ch.
158). Mowbray (Lord) v. .\ti.-Gen.,
29 T. L. R. 11.5— Phillimoro, J.
Provisional Valuation — Settled Land — Duty
of Trustees to Check Valuations — Remainder-
1303
KE VENUE.
1304
men.] — A person equitably entitled in
remainder to certain land let upon long
leases, the first of which would expire in 1977,
applied to the Court that the trustees of the
settlement should be directed to take the
necessary steps for checking the provisional
valuations of the settled land made by the
Inland Revenue Commissioners under sec-
tion 26 of the Finance (1909-10) Act, 1910.
The tenant for life objected to this expense
being incurred, and the trustees stated that in
their discretion they considered it unnecessary :
— Held, that as the trustees in their discre-
tion did not think it necessary to check the
provisional valuations the Court would not
interfere with their discretion. KnoUys'
Trusts, In re; Saunders v. Haslam, 81 L. J.
Ch. 572; [1912] 2 Ch. 357; 107 L. T. 335;
66 S. J. 632— C. A.
Per Cozens-Hardy, M.R. : There may be
cases which would justify trustees in incurring
expenditure in checking valuations under the
Act either after obtaining or without the
direction of the Court. lb.
Provisional Valuation — Costs of Checking
Valuation — Duty of Trustees.] — The Finance
(1909-10) Act. 1910, imposes no duty on
trustees of settled land to check the provisional
valuations of the land which have been made
by the Commissioners for the purposes of duty
and served upon the trustees as " owners " in
accordance with the Act ; and the Court will
not order the trustees to incur this expense,
but in particular cases, such as the case of
a building estate, the Court will give the
trustees liberty to take such steps as may be
advisable and reasonable to test the valua-
tions made under the Act. Smith-Bosanquet's
Settled Estates. In re. 107 L. T. 191—
Parker, J.
Appeal to Referee — Order to Pay Costs —
Unascertained Amount — Power to make Order
a Rule of Court.] — Bv section 33, sub-section 1
of the Finance (1909-10) Act, 1910, any person
aggrieved may appeal against any determina-
tion by the Commissioners of the total value
or site value of any land. By sub-section 2
the appeal is to be referred to a referee ap-
pointed under the Act. By sub-section 3 the
referee is to determine any matter referred
to him in consultation with the Commissioners
and the appellant, and may order that " any
expenses incurred by the appellant be paid by
the Commissioners . . . Any order of the
referee as to expenses may be made a rule of
the High Court." Upon the hearing of an
appeal under the above section, the referee
by his award directed that the appellant's
costs of the appeal should be borne by the
Commissioners, but did not assess the amount
of the costs. On a motion to make the award
a rule of Court, — Held, that a referee can
make a valid order as to costs although he does
not fix the amount, inasmuch as the costs
can be taxed by a Master, and that the award
ought therefore to be made a rule of Court.
Mattheics v. Inland Revenue Commissioners,
83 L. J. K.B. 15.52; [1914] 3 K.B. 192;
110 L. T. 931— Scrutton, J.
Appeal to Referee — Order as to Payment of
Expenses — Unascertained Amount — Power to
make Award a Rule of Court.] — By section 33,
sub-section 1 of the Finance (1909-10) Act,
1910, a person aggrieved may appeal against
any determination by the Commissioners of
the total value or site value of any land. By
sub-section 2 an appeal under the section is
to be referred to a referee appointed under
the Act. By sub-section 3 : " The referee shall
determine any matter referred to him in con-
sultation with the Commissioners and the
appellant . . . and may, if he thinks fit, order
that any expenses incurred by the appellant
be paid by the Commissioners, and that any
such expenses incurred by the Commissioners
be paid by the appellant. Any order of the
referee as to expenses may be made a rule of
the High Court." Upon an appeal under the
section the referee made the following order :
" I order that any expenses incurred by the
Commissioners be paid by the appellant."
Upon an application to make the order a rule
of Court, — Held, that the decision of the
referee was bad, as it did not assess the
amount of the expenses, and that there was
no power to make it a rule of Court. Simpson
V. Inland Revenue Commissioners, 83 L. J.
K.B. 1.318 ; [1914] 2 K.B. 842 ; 110 L. T. 909 ;
30 T. L. R. 436— Scrutton, J.
See also cases under Increment Value Duty
(infra).
2. Increment Value Duty.
Gross Value — Total Value — Inclusion of
Value of Unexhausted Manures and Tillages
— Full Site Value — Inclusion of Value of Grass
Growing on Land — Structures — Road — Assess-
able Site Value — Exclusion of Value of Un-
exhausted Manures and Tillages — Exclusion
of Value of Grass Sown by Tenant,] — In
valuing land under the provisions of the
Finance (1909-10) Act, 1910, " in its then con-
dition " on April 30. 1909, any sums attribut-
able to the value of unexhausted manure or
tillages must be included, under sub-section 1
of section 25, in the gross value and the total
value of the land, but deductions cannot be
made under sub-section 4 (d) of section 25
in respect of such increased value in arriving at
the assessable site value of the land. In valu-
ing land in its then condition all unsevered
vegetable growths, whether natural or arti-
ficial, transitory or permanent, emblements
or not emblements, must be included in the
gross value of land under sub-section 1 of
section 25 ; but the value of the grass growing
on the land must be deducted under sub-sec-
tion 2 of section 25 from the gross value of the
land in arriving at the full site value of the
land. Inland Revenue Commissioners v.
Smyth. 83 L. J. K.B. 913: [1914] 3 K.B. 406;
no L. T. 819; 58 S. J. 400; 30 T. L. R. 357
— Scrutton, J.
A structure, the value of which must be
deducted, under sub-section 2 of section 25,
from the gross value of land in order to arrive
at the full site value of the land, is some-
thing artificially erected, constructed, put
together, of a certain degree of size and per-
manence, which is still maintained as an
1306
REVENUE.
1306
i artificial erection, or which, though not so
' maintained, has not become indistinguishable
in bounds from the natural earth surround-
ing. What degree of size and permanence is
necessary in order that an artificial erection
may be a structure within the meaning of the
section, is a question of fact in every case. lb.
The value of the grass growing on land
laid down in grass by the tenant, but in
respect of which the tenant is not entitled to
claim compensation from the landlord, cannot
be deducted, under sub-section 4 (d) of
section 25, from the total value of the land as
being a matter personal to the occupier, in
arriving at the assessable site value of the
land. lb.
Site Value — No Deduction in Respect of
Sea Walls — " Buildings '' — " Structures " —
" Building land."] — A farm consisting of a
farmhouse and about 150 acres of agricultural
land, almost the whole of which lay
below the level of highest spring tides, was
protected from the sea by two sea walls or
banks made of rammed earth covered with
turf. One of them was probably of Eoman
origin. The other was constructed in 1808.
The farm lay seven miles from the nearest
station and twelve from the nearest market
town. Upon a valuation under the Finance
(1909-10) Act, 1910— Held, that the walls
were not " buildings," and if " structures "
were not " structures used in connection
with " buildings, within section 25, sub-
section 2 of the Act ; that they had not been
made "by or on behalf of or solely in the
interest of any person interested in the land
for the purpose of improving the value of the
land as building land " within section 25, sub-
section 4 (b) of the Act ; that they had not
" actually improved the value of the land as
building land " within section 25, sub-
section 4 (e) of the Act ; and that no deduc-
tion could be allowed in respect of them in
arriving at assessable site value. " Building
land," within section 25 of the Act, does not
mean any land upon which houses can be
built, but land which has a greater value for
building purposes than as agricultural land.
Waite's Executors v. Inland Revenue Com-
missioners, 83 L. J. K.B. 1617 ; [1914] 3 K.B.
196 ; 111 L. T. 505 ; 58 S. J. 634; 30 T. L. K.
568— C. A.
Assessable Site Value of Land — Minus
Quantity.] — The assessable site value of land
under section 25, sub-section 4 of the Finance
(1909-10) Act, 1910, may be a minus quantity.
Inland Revenue Commissioners v. Herbert,
82 L. J. P.C. 119; [1913] A.C. 326; [1913]
S. C. (H.L.) 34; 108 L. T. 850; 11 L. G. E.
865; 57 S. J. 516 ; 29 T. L. R. 502— H.L. (Sc.)
Decision of Court of Session ([1912] S. C.
948) reversed. lb.
Site Value — Sale of Fee-simple — Method of
Calculation.!— In 1910 the appellant sold the
fee-simple of a dwelling house, subject to tithe
of the capital value of 33/., for 750/. The
" full site value " on April 30, 1909, was 228/.,
and there was no change in the value between
that date and the date of the sale. The " gross
value " at the date of the sale was found to be
658/., and the proper deduction under sec-
tion 25, sub-section 4 (b) of the Finance
(1909-10) Act, 1910, in respect of roads was
found to be 90/. The " original site value "
was 105/. : — Held, by the Lord Chancellor and
Lord Shaw, that the site value on the occasion
of the sale was to be arrived at under sec-
tions 2 and 25 of the Act by deducting from
the purchase price of 750/. the sum of 430/.,
being the difference between the gross value
and the full site value, and also the 90/. in
respect of roads, and that the appellant was
properly assessable to increment value duty on
the difference between this amount (230/.) and
105/., the original site value. Lumsde^i v.
Inland Revenue Coynmissioners , 84 L. J. K.B.
45; [1914] A.C. 877; 111 L. T. 993; 58 S. J.
738; 30 T. L. R. 673— H.L. (E.)
Decision of the Court of Appeal (82 L. J.
K.B. 1275; [1913] 3 K.B. 809) affirmed;
Lord Moulton and Lord Parmoor dissenting.
lb.
Explanation (per Lord Johnston and Lord
Cullen) of the method by which, according to
the decisions in Lumsden v. Inland Revenue
Commissioners (84 L. J. K.B. 45; [1914]
A.C. 877) and Inland Revenue Commissioners
V. Walker (84 L. J. P.C. 115; [1915] A.C.
509), a valuer must ascertain the site value of
land on the occasion of a transfer. Congrega-
tion of Jews V. Inland Revenue, [1915] S. C.
997— Ct. of Sess.
The manner or method of calculating the
increment value duty imposed by the Finance
(1909-10) Act, 1910, in a Special Case stated
further considered. Lumsden v. Inland
Revenue Commissioners (82 L. J. K.B. 1275;
[1913] 3 K.B. 809) followed and approved.
Inland Revenue Commissioners v. Hewitt,
109 L. T. 896— Scrutton, J.
Deductions — Deduction in Respect of
Goodwill and Matters Personal to Parties.] —
For the purpose of ascertaining the difference
between the gross value and the full site value
of a house or land on the occasion of a sale,
under the Finance (1909-10) Act, 1910, the
gross value as well as the full site value on
the occasion of the transfer must be determined
by a process of valuation ; and the gross value
cannot be taken to be the consideration for
the sale, with the addition of the capitalised
value of the burdens subject to which the
property in question was sold. For the purpose
of the other deductions to be made under
section 25 of the Act the total value must be
ascertained by valuation, and cannot be taken
as the consideration for the sale. Lumsden v.
Inland Revenue Commissioners (84 L. J.
K.B. 45; [1914] A.C. 877) followed. Inland
Revenue Commissioners v. Walker, 84 L. J.
P.C. 115; [1915] A.C. 509: 112 L. T. 611—
H.L. (Sc.)
A deduction from total value, as being an
expenditure attributable to goodwill, or some
other matter personal to the parties interested,
can only be allowed under section 25, sub-
section 4 of the Act, if the amount has been
included as part of the total value. 7b.
Judgment of the Court of Session in
Scotland ([1913] S. C. 719; 50 Sc. L. R. 470).
reversed. lb.
130^
EE VENUE.
1308
Sale of Fee-simple — Special Need of Parti-
cular Purchaser — Pressure on Seller to Sell —
Sale in "open market" — Willing Seller.] —
In valuing land for increment value duty
under section 25, sub-section 1 of the Finance
(1909-10) Act, 1910, " if sold in the open
market " means if sold upon a sale open to
every possible purchaser, though not neces-
sarily a sale by auction only or without reserve,
so that the special need of a particular pur-
chaser must be taken into consideration ; and
" a willing seller " means a free agent who
cannot be compulsorily required to sell.
Inland Revenue Commissioners v. Clay (or
Buchanan), 83 L. J. K.B. 1425; [1914] 3 K.B.
4fi6; 111 L. T. 484; 58 S. J. 610; 30 T. L. E.
578— C.A.
In 1908 water commissioners obtained
powers by a Provisional Order to purchase by
agreement any lands lying within the catch-
ment area of tlieir reservoir. In 1911, in
exercise of these powers, they purchased cer-
tain lands within that area for 5,000Z. In
1913 the original total value of these lands
under the Finance (1909-10) Act, 1910, as at
April 30, 1909, was fixed by a referee at
3,379i., a figure which was but little, if at all,
above the agricultural value : — Held (Lord
Cullen dissenting), that the referee was bound
to take into consideration the special value of
the lands to the commissioners and the
probability in 1909 that the commissioners
would shortly be forced to purchase them to
preserve the purity of their water supply ; and
in respect that he had failed to give sufiicient
weight to these considerations, valuation
increased to 4,629L Inland Revenue Commis-
sioners V. Clay ({■ Buchanan (83 L. J.
K.B. 581, 1425; [1914] 1 K.B. 339; [1914]
3 K.B. 466) approved. Glass v. Inland
Revenue, [1915] S. C. 449— Ct. of Sess.
In an appeal to a referee against a valua-
tion of lands under the Finance (1909-10) Act,
1910, the referee, acting on instructions from
the reference committee, refused to allow a
proof of facts which, it was alleged, would
shew that the lands were of a special value to
a particular purchaser. The Court remitted
to the referee to take a proof, and on his
adhering to his former valuation themselves
fixed the value of the lands at an increased
figure. lb.
Assessable Site Value — Walls Sheltering
Sheep — " Buildings " — " Other structures
. . . which are appurtenant to or used in con-
nection with any such buildings" — Divest-
ment J — A farm was divided into fields, and
bounded by substantially built stone walls
from five to six feet in height, and the walls
also served as shelter to stock on the farm : —
H Id, that they were not "buildings" or
" other structures . . . appurtenant to or used
in connection with " farm buildings, within
section 25, sub-section 2 of the Finance (1909-
10) Act, 1910, and, consequently, that the
assessable site value of the land was not to be
fix'd as if the land were divested of these
walls. Morrison v. Inland Revenue Commis-
sioners, 84 L. J. K.B. 1166; [1915] 1 K.B.
716; 112 L. T. 1044; 31 T. L. E. 176—
Rowlatt, J.
Appeal from Referee on Question of Costs.]
— The Court will not entertain an appeal
against the referee on a question of costs. lb.
Deductions — " Value . . . directly attri-
butable to works executed, or expenditure of a
capital nature" — "Value . . . directly attri-
butable to the appropriation of any land . . .
for the purpose of streets," &c. — Appropria-
tion of Land and Construction of Roads
thereon on Building Estate — Claim for Deduc-
tion.]— The assessable site value of land for
the purposes of the Finance (1909-10) Act,
1910, means " the total value after deduct-
ing— . . . (b) Any part of the total value
which is . . . directly attributable to works
executed, or expenditure of a capital nature
. . . incurred . . . by . . . any person in-
terested in the land for the purpose of improv-
ing the value of the land as building land, . . .
and (c) Any part of the total value which
is . . . directly attributable to the appropria-
tion of any land ... by any person interested
in the land for the purpose of streets, . . ." :
— Held, that in the case of a building estate,
the value attributable under (c) does not refer
exclusively to the value attributable to the
appropriation of land outside the estate, but
includes the value attributable to the appro-
priation of land to roads on the estate. Held.
also, that where the land had been appropriated
and the roads made up, and a landowner claims
under both (6) and (c), the deduction may
be in one sum without specifying the amount
under each separately, but that a specific claim
must be made under each clause if a case
under each is to be put forward. If in doubt
under which to claim, the landowner may
claim under each alternatively. Held, fur-
ther, that the part of the total value attribut-
able under (c) is not the part at the time of
the dedication, but the part of the total value
— that is, the amount after certain deductions,
which it would have fetched in the open market
— attributable under (c) in the same market.
Inland Revenue Conunissioners v. Whidborne's
Executors, 84 L. J. K.B. 1202; [1915] 2 K.B.
350; 112 L. T. 1023— Eowlatt, J.
Agricultural Land — Market Value for Agri-
cultural Purposes only — Value of Land for
Sporting Purposes.] — Section 7 of the Finance
(1909-10) Act, 1910, enacts that "Increment
value duty shall not be charged in respect of
agricultural land while that land has no higher
value than its market value at the time for
agricultural purposes only : Provided that any
value of the land for sporting purposes, . . .
shall be treated as value for agricultural pur-
poses only, except where the value for any
such purpose exceeds the agricultural value of
the land " : — Held, that, in ascertaining the
value of agricultural land as on April 30, 1909,
pursuant to section 26, sub-section 1 of the
Act, the value of the land for agricultural pur-
poses only should not include the value of the
land for sporting purposes. Inland Revenue
Commissioners v. Hunter. 84 L. J. K.B. 135 ;
[1914] 3 K.B. 423; 110 L. T. 825; 58 S. J.
400; 30 T. L. E. 363— Scrutton, J.
Substituted Site Value — Mortgage of
Interest in Land before April 30, 1909— Site
1309
REVENUE.
1310
Value at Time of Mortgage — Basis of Calcula-
tion.]— By section 2, sub-section 3 of the
Finance (1909-10) Act, 1910, where the site
value of land at the time of any transfer on
sale of any interest in land taking place at
any time within twenty years before April 30,
1909, exceeds the original site value as ascer-
tained in accordance with the Act, the former
site value shall, for the purposes of increment
value duty, on application being made, be sub-
stituted for the original site value ; and the
sub-section, by reference to sub-section 2,
provides that the former site value shall be the
value of the fee-simple, calculated on the basis
of the consideration for the above-mentioned
transfer, but subject "' to the like deductions
as are made, under the general provisions of
this Part of this Act as to valuation, for the
purpose of arriving at the site value of land
from the total value." Section 2, sub-
section 3, extends the above provisions as to
a transfer on sale of an interest in land to the
case of a mortgage thereof, the amount secured
by the mortgage being substituted for the
consideration for the transfer : — Held, that in
the latter case it is the actual amount secured
by the mortgage which is to be substituted for
the original site value, and not the value of
the fee-simple at the date of the mortgage.
Hayllar v. Inland Revenue Commissioners,
83 L. J. K.B. 203; [1914] 1 K.B. 528;
110 L. T. 218; 30 T. L. E. 172— C. A.
Hence, where trustees in 1898 advanced
1,600L trust moneys on mortgage on two
houses let at rack rents, the value of the same
being then 2,400Z., the amount to be sub-
stituted for the original site value was 1,600Z.
and could not be increased by the estimated
value of the equity of redemption. lb.
Lease of Minerals — Term "not exceeding
fourteen years."] — Under section 22 of the
Finance (1909-10) Act, 1910, increment value
duty is payable in respect of a lease of
minerals, although the lease is for a term not
exceeding fourteen years. Inland Revenue
Commissioners v. Sheffield and South York-
shire Navigation Co., 84 L. J. K.B. 922 ; [1915]
1 K.B. 725; 112 L. T. 1073- Rowlatt, J.
Duty Payable out of Capital. — Semble,
increment value duty and reversion duty
chargeable under the Act are payable out of
capital. Smith-Bosanquet's Settled Estates,
In re, 107 L. T. 191— Parker, J.
Whether Increment Value Duty a Stamp
Duty.] — Increment value duty, l)cing a debt
due to the Crown by sellers, is not a stamp
duty on a conveyance within section 168 of
the" Public Health (Scotland) Act, 1897, which
provides that " all bonds . . . conveyances,
instruments . . . made or granted by or to or
in favour of the local authority under this Act
shall be exempt from all stamp duties."
Inland Revenue v. Miller, [1915] S. C. 469—
Ct. of Sess.
Semble, that the exemption granted by
section 168 applies to a conveyance to Glasgow
Corporation of a piece of ground purchased by
them for purposes of public recreation under
powers conferred by their Police Order Con-
firmation Act 1901. 7b.
Appeal from Referee — Oral Evidence on
Appeal.] — -The fact that on the hearing of
the appeal from the referee the Court heard
oral evidence is not to be taken as binding the
Court to such a course in future. Inland
Reveyiue Commissioners v. Clay; Inland
Revenue Commissioners v. Buchanan. 83 L. J.
K.B. 581; [1914] 1 K.B. 339; 110 L. T. 311
— Scrutton, J.
3. Reversion Duty.
Surrender of Lease — Basis for Ascertaining
Total Value of Land at the Time of Original
Grant of Lease — Ramsden Estate — Tenancy
at Will — Right to Lease.] — The provisions in
section 13, sub-section 2 of the Finance
(1909-10) Act, 1910, with reference to the
ascertainment of the total value of land at the
time of the original grant of a lease are
exclusive, and provide the only method in
which the total value of the land at the time
of the original grant of the lease is to be
ascertained, and therefore other evidence as
to the real value of the land at the time of
the granting of the lease cannot be given.
Ramsden v. Inland Revenue Commissioners,
82 L. J. K.B. 1290; [1913] 3 K.B. 580n. ;
109 L. T. 105— Horridge, J.
Property on the R. estate, Huddersfield,
was, before 1860, largely held on tenancy by
"tenant right." A person desiring to obtain
land on " tenant right " applied to the agent
for the estate for permission to build upon the
land selected, and upon approval by the agent
of the plot and plans for building, and upon
agreement as to the rent to be paid, was
allowed to enter upon the land on the under-
standing that he would build thereon. His
name was then entered upon the tenant roll of
the estate. If a tenant wished to sell his
house he purported to surrender the property
to the landlord, and the name of the purchaser
was then entered on the tenant roll ; if he
died, the name of the next-of-kin or legatee
was substituted on the tenant roll. The rent
payable by a tenant by " tenant right " was
about one-half of what he would have paid if
the land had been taken on a renewable lease.
No lease was granted to a tenant by " tenant
right," but he had an expectation that he
would not be disturbed so long as the rent was
paid. In 1849 M. applied for permission to
become a tenant by " tenant right " of a piece
of land, and was allowed to enter into posses-
sion of the land on the understanding that
he would build thereon. He in fact expended
about 350/. in the erection of a house. The
rent of the plot was fixed at \l. Is. per annum.
In 1867 the then owner of the R. estate
granted a lease, at a ground rent of 11. 165. 8d.,
of this piece of land for 99 years to C, as
being the person then entitled to the " tenant
right " granted to M. In October, 1910, this
lease was surrendered in pursuance of an
agreement by the present owner of the estate
to grant a new lease of the land for 999 years
at an increased ground rent. The Inland
Revenue Commissioners, in assessing the
reversion duty payable by the lessor under
section 13 of the Finance (1909-10) Act. 1910,
on such surrender, valued the total value of
the land at the time of the original grant of
1311
HE VENUE.
1312
the lease at 40L 6s. 8d., being tweuty-two
years' purchase of 11. 16s. 8d., the rent
reserved by the lease. The lessor claimed that
the value of the undertaking to build given by
M. when he entered into possession ought also
t3 be taken into account : — Held, that tenants
by '■ tenant right " had no higher right in
their property than that of a tenant from year
to year, and that the undertaking by M. in
184'9 to erect buildings on the land was not
connected in any way with the grant of the
lease to C. in i867/and could not therefore
be taken into account in ascertaining the total
value of the land at the time of the granting
of the lease in 1867, even assuming that the
rent of 11. 16s. Sd. reserved by the lease was a
nominal rent. Held, further, that the sur-
render by C. of his " tenant right " in the
property in 1867 on the granting of the lease
could not be taken into account as a " pay-
ment " within sub-section 2 of section 13 of
the Act of 1910, as he had no legal right in
the property beyond that of a tenant from year
to year. Rainsden v. Dyson (L. K. 1 H.L.
129) considered. lb.
Grant of New Lease at Same Rent for
Longer Term — "Total value" — "Compensa-
tion payable by lessor."] — Two long leases of
property were surrendered to the lessor, who
thereupon granted a new lease of the premises
comprised in the two old leases to the lessee
at the same rent for a slightly longer term.
The Crown claimed reversion duty under
section 13 of the Finance (1909-10) Act, 1910,
as amended by section 3 of the Eevenue Act,
1911, on the difference between the total value
at the determination of the old leases and the
total value at the commencement thereof : —
Held, that in ascertaining the total value at
the determination of the old leases the value
of the grant of the new leases could not be
deducted as being " compensation payable by
such lessor at the determination of the lease "
under section 13, sub-section 2 of the Finance
(1909-10) Act, 1910. Inland Revenue Com-
sioners v. Anglesey (Marquess), 82 L. J.
K.B. 811: [1913] 3 K.B. 62; 108 L. T. 769;
57 S. J. 517; 29 T. L. E. 495— C.A.
Agreement to Grant New Lease on Per-
formance of Conditions — Determination of Old
Lease.'' — On April 5, 1910, an agreement was
made between the tenant of certain premises,
who held under a lease which had still a
number of years to run, and the lessor,
whereby the latter agreed to give the tenant
a new lease for a longer term as from
March 25, 1910, on the performance by the
tenant of certain conditions. On April 29,
1910, the date when the Finance (1909-10) Act,
1910, came into operation, those conditions had
not been performed by the tenant, and it was
not till June 23, 1910, that the new lease
was executed : — Held, that as the conditions
of the agreement of April 5. 1910, had not
been performed by April 29, 1910, the tenant
was not then entitled, under the doctrine of
Walsh V. Lonsdale (52 L. J. Ch. 2;
21 Ch. D. 9), to be treated in equity as having
the new lease ; and that as the time at which
the surrender by operation of law determined
the old lease — namely, the date of the grant
of the new lease — was subsequent to the
coming into operation of the Finance
(1909-10) Act, 1910, the lessor was liable under
section 13 of that Act to reversion duty on the
value accruing to him by reason of the deter-
mination of the old lease. hiland Revenue
Commissioners v. Derby [Earl), 84 L. J.
K.B. 248; [19l4] 3 K.B. 1185; 109 L. T. 827
— Horridge, J.
Total Value of Land at the Time of Original
Grant of Lease — "Payments made in con-
sideration of the lease" — "Nominal rent" —
" Undertaking to erect buildings."] — Under
section 13, sub-section 2 of the Finance
(1909-10) Act, 1910, the value of the benefit
accruing to a lessor on the determination of a
lease upon which reversion duty is payable by
the lessor shall be deemed to be the amount by
which the total value of the land at the time
the lease determines exceeds " the total value
of the land at the time of the original grant of
the lease, to be ascertained on the basis of
the rent reserved and payments made in con-
sideration of the lease (including, in cases
where a nominal rent only has been reserved,
the value of any covenant or undertaking to
erect buildings or to expend any sums upon
the property) " : — Held, that an expenditure
on land by the erection of houses made by a
prospective lessee under an agreement in
order that he might obtain a lease of the land
and houses is not a " payment made in con-
sideration of the lease " within the meaning
of section 13, sub-section 2 of the Finance
(1909-10) Act, 1910, and cannot therefore be
taken into account. Held, further, that
" nominal rent " means rent which is a mere
token of an acknowledgment of the relation of
landlord and tenant, and that therefore the
value of a covenant or undertaking to erect
buildings could not be taken into account in
estimating the total value of the land at the
time of the original grant of the lease where u
rent of 24Z. a year was reserved by the lease,
even although such rent was not the full rent
of the land. Stepyiey and Bow Educational
Foundation {Governors) v. Inland Revenue
Commissioners, 82 L. J. K.B. 1300; [1913]
3 K.B. 570; 109 L. T. 165; 29 T. L. R. 631
— Horridge, J.
Grant of Lease in Consideration of Surren-
der of Old Lease and Payment of Money —
Basis for Ascertaining Total Value of Land at
the Time of Original Grant of Lease — To be
Ascertained " on the basis of the rent
reserved and payments made in considera-
tion of the lease."] — For the purpose of
ascertaining the benefit accruing to a lessor on
the determination of a lease, in respect of
which he is assessed to reversion duty, it is
necessary, under section 13, sub-section 2 of
the Finance (1909-10) Act, 1910, to ascertain
the total value of the land at the time of the
original grant of the lease " on the basis of
the rent reserved and payments made in con-
sideration of the lease." The lessors were
accustomed to grant a lease of certain premises
for forty years at a nominal rent, and at the
expiration of fourteen years to grant a new
lease for forty years in consideration of the
surrender of the existing lease, payment of the
1313
EEVENUE.
1314
same rent, and of a sum of money : — Held,
that in ascertaining the above total value
recourse must be had to the definition of total
value in section 25, sub-section 3 of the Act
— that is, its value in the open market — but
that the calculation must be on the basis of
the rent reserved and payments made in con-
sideration of the grant of the lease, as directed
by section 13, sub-section 2, and that accord-
ingly, in the above circumstances, the total
value must be ascertained on the basis of the
rent and of that for which the payment was
made — namely, the exchange for a term of
twenty-six years at that rent of a forty years'
term at the same rent. Held also, that the
surrender of the existing lease was not a pay-
ment made within the meaning of section 13,
sub-section 2, and could not therefore form a
part of the basis for the above calculation.
Inland Revenue Commissioners v. St. John's
College, Oxford, 84 L. J. K.B. 1426; [1915]
2 K.B. 621; 112 L. T. 1039— Rowlatt, J.
Expenditure by Lessee on Property Demised
— " Payments made in consideration of the
lease."]— The Finance (1909-10) Act, 1910,
by section 13, sub-section 1, imposes a rever-
sion duty on a lessor on the value of the
benefit accruing to him on the determination
of a lease. By sub-section 2 the value of the
benefit accruing to the lessor is to be deemed
to be the amount (if any) by which the total
value of the land at the time when the lease
determines exceeds " the total value of the
land at the time of the original grant of the
lease, to be ascertained on the basis of the
rent reserved and payments made in considera-
tion of the lease (including, in cases where a
nominal rent only has been reserved, the value
of any covenant or undertaking to erect build-
ings or to expend any sums upon the pro-
perty) " : — Held, that " payments made in
consideration of the lease " could not be
restricted to payments made directly to the
lessor, but that money expended by the lessee
on the property demised prior to the granting
of the lease must be taken into account.
Inland Revenue Commissioners v. Camden
(Marquis), 84 L. J. K.B. 145: [1915] A.C.
241 ; 111 L. T. 1033 ; 58 8. J. 782 ; 30 T. L. R.
681— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 509; [1914] 1 K.B. 641) affirmed. lb.
Benefit Accruing to Lessor on Determina-
tion of Lease — Value of Licence.] — In esti-
mating the value of the benefit accruing to a
lessor by reason of the determination of a
lease, for the purpose of assessment to rever-
sion duty under section 13 of the Finance
(1909-10) Act, 1910, the increased value of the
land owing to the existence of a licence for the
sale of intoxicating liquors attached to a house
erected thereon ought to be taken into account.
Fitztvtlliam (Earl) v. Inland Revenue Com-
missioners, 83 L. J. K.B. 1076; [1914] A.C.
753; 111 L. T. 385; 58 S. J. 493; 30 T. L. R.
459-H.L. (E.)
Decision of the Court of Appeal (82 L. J.
K.B. 777; [1913] 2 K.B. 593) affirmed. 76.
Exemptions — Reversion "purchased" before
April 30, 1909 — Reversion Conveyed to
Trustees of Marriage Settlement — Meaning of
"purchased."] — The word "purchased" is
used in section 14, sub-section 1 of the Finance
(1909-10) Act, 1910, in the ordinary commercial
sense of " bought," and a reversion on a lease
conveyed to trustees of an ante-nuptial settle-
ment in consideration of marriage is not,
therefore, " purchased " within the meaning
of that sub-section : — So held, per Cozens-
Hardy, M.R., and Kennedy, L.J. ; Buckley,
L.J., dissenting. Inland Revenue Commis-
sioners V. Gribble, 82 L. J. K.B. 900; [1913]
3 K.B. 212; 108 L. T. 887; 57 S. J. 476;
29 T. L. R. 481— C. A.
4. Undeveloped Land Duty.
Building Land — Lease Made before April 30,
1909, and Current on April 29, 1910— Power to
Resume Possession for Building or other Pur-
poses — Liability before Determination of
Lease.]— The Fmance (1909-10) Act, 1910, by
section 16 imposes a duty on the owners of
" undeveloped laud " as therein defined. By
section 17, sub-section 5, the duty is not
chargeable upon agricultural land at the pass-
ing of the Act held under a tenancy originally
created by a lease made before April 30, 1909,
during the continuance of such tenancy :
" Provided that where the landlord has power
to determine the tenancy . . . the tenancy
. . . shall not be deemed for the purposes of
this provision to continue after the earliest
date after the commencement of this Act at
which it is possible to determine the tenancy
under that power." Land, which was admit-
ted to be undeveloped land within the meaning
of the Act, was let for seven years from
September 29, 1904, under a lease made in
1906, and current on April 29, 1910, the date
of the passing of the Act. The lease reserved
to the lessors power, upon giving one month's
notice to the tenant, " to enter upon and
resume possession for building or other pur-
poses of any part or parts of the said land."
The lessors had no intention or wish to resume
possession for building or any other purpose
before the determination of the lease : — Held,
that the land was not liable to duty before
the determination of the lease under section 17
of the Act, as the right to resume possession
never arose, for the power could only be exer-
cised in an event which had not hap[)ened —
namely, an intention or wish on the part of
the lessors to resume possession for building
or other purposes inconsistent with the use of
the land as agricultural land under the lease.
Inland Revenue Commissioners v. South end-
on-Sea Estates Co., 84 L. J. K.B. 154; [1915]
A.C. 428; 112 L. T. 89; 59 S. J. 24;
31 T. L. R. 30— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 611; [1914] 1 K.B. 515) affirmed. lb.
" Land . . . developed by the erection of
dwelling houses" — "Dwelling house."] — By
section 16, sub-section 1 of the Finance
(1909-10) Act, 1910. undeveloped land duty is
charged on undeveloped land, and by sub-
section 2 land is dceined to be undeveloped
if it has not been (inter alia) " developed by
the erection of dwelling liouses " : — Held, that
" dwelling house " includes the house, out-
42
1315
REVENUE.
1316
buildings, curtilage, and the open spaces in-
cluded therein other than gardens or pleasure
grounds. Held, further, that land is de-
veloped land which is essential to the use of
the use of the dwelling house as such by the
class of persons who might, from the business
point of view of a person dealing in houses,
be expected to live in it. Inland Revenue
Commissioners v. Devonshire (Duke), 83 L. J.
K.B. 706; [1914] 2 K.B. 627; 110 L. T. 659;
30 T. L. R. 209— Scrutton, J.
By section 17, sub-section 4, the duty is
not to be charged on land, not exceeding one
acre in extent, occupied together with a dwell-
ing house : — Held, that land developed as
above as essential to the use of the dwelling
house, if one acre or less in extent, is included
in the one acre so exempt, but that if it
exceeds one acre in extent the excess is still
developed land. lb.
Business of Land Development — Sale of
Land — Payment by Instalments — Purchaser
in Possession before Execution of Conveyance
Assessment of Vendor to Duty — "Recoverable
from the owfner for the time being" — Vendor
not the Owner — Referee's Jurisdiction — Right
of Appeal.] — Section 19 of the Finance
(1909-10) Act, 1910, provides that undeveloped
land duty shall be assessed by the Commis-
sioners of Inland Revenue, and shall be
recoverable from the owner of the land for
the time being. By section 41, " The expres-
sion ' owner ' means the person entitled in
possession to the rents and profits of the land
in virtue of any estate of freehold." A.
carried on the business of a " land developer "
by purchasing land, cutting it up into plots,
and selling them to various purchasers under
agreements which provided for payment of
the purchase money by instalments and for
the execution of conveyances on payment of
the balance thereof. On the signing of the
agreements the purchasers took possession of
the plots. The Commissioners assessed A. for
undeveloped land duty in respect of certain
of these plots, but the purchasers, although
in possession under their agreements, had not
completed their purchases, nor received their
conveyances. A. appealed to a referee on the
ground that he was not the owner of the land,
and was not therefore liable to pay the duty.
The referee decided that the appellant was
the owner, and therefore liable. The appel-
lant appealed from this decision to the High
Court : — Held, by Scrutton, J., that a person
who has been assessed for undeveloped land
duty is entitled under section .33 of the
Finance (1909-10) Act, 1910, to appeal against
such assessment to a referee, and to appeal
from his decision to the High Court, on the
question whether he is the owner of the land
in respect of which he has been assessed to
duty. And held, by the Court of Appeal
(affirming the decision of Scrutton, J., on this
point), that at the date of the assessment A.
was not the owner of the land in question
within section 41 of the Act, and had been
wrongly assessed to this duty in respect
thereof. Allen v. hiland Revenue Commis-
sinners, 83 L. J. K.B. 649; ri914] 2 K.B.
327; 110 L. T. 446; 58 S. J. 318— C.A.
Land Developer — Land Held for Sale — Land
" used bona fide for any business."] — Where
a person carried on the business of a land
developer, utilising his land in connection with
his business by its development with a view
to sale in accordance with the demands of the
market for the time being, and with the aid
of a system of advertisement designed to
attract purchasers, — Held, that the land was
not being " used bona fide for any business,
trade, or industry " within the meaning of
section 18, sub-section 2 of the Finance
(1909-10) Act, 1910, and was chargeable with
undeveloped land duty. Brake v. Inland
Revenue Commissioners, 84 L. J. K.B. 759;
[1915] 1 K.B. 731 ; 112 L. T. 944 ; 31 T. L. R.
177— Rowlatt, J.
5. Mineral Rights Duty.
" Minerals " — Felsite Whinstone — Granite.]
— All substances obtained from the crust of
the earth, other than the surface soil, by
mining, quarrying, or open working, are
" minerals " within the Finance (1909-10) Act,
1910, with the exception of those substances
expressly excepted in the Act. Accordingly,
felsite whinstone and granite, not being
among the excepted substances, are minerals
and subject to mineral rights duty.
Anstruther's Trustees v. Inland Revenue,
[1912] S. C. 1165— Ct. of Sess.
Land and Minerals in Different Occupation
— Minerals a Separate Parcel — Failure to
Estimate Capital Value of Minerals in Form 4
— Right to make Further Return as to
Minerals — Provisional Valuation — Substituted
Capital Value.] — In 1910 the trustees of a
marriage settlement, dated June 3, 1863, were
owners in fee-simple of Appleton Farm, subject
to a lease to P. for fourteen years, dated
October 6, 1906, in which the minerals were
reserved to the trustees. On September 13,
1910, they were served with a notice dated
September 10, 1910, requiring them to make
a return on "Form 4 — Land " within thirty
days for the purposes of valuation under the
Finance (1909-10) Act, 1910. In Form 4 as
served on them the property to which it applied
was described as " House Premises and Land "
called Appleton Farm in the occupation of P.
In reply to questions under heading (t) the
trustees stated that they were the owners and
proprietors of the minerals under the farm,
which were unworked. At the foot of this
heading was a note : " Minerals not comprised
in a mining lease or being worked are to be
treated as having no value as minerals unless
the proprietor of the minerals fills up space
{to) below." The enquiry under heading iw)
was as to the nature and estimated capital
value of the minerals, and the trustees left it
unanswered. A provisional valuation had been
made of the farm but not of the minerals
thereunder, as the Inland Revenue Commis-
sioners claimed to treat them as having had
no value on April 30, 1909, by virtue of
section 23, sub-section 2 of the Act owing to
the failure to answer iio) : — Held, that the
minerals ought to be treated as a separate
parcel of land ; that the copy of Form 4 served
on the trustees, which dealt with the land in
1317
REVENUE.
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the occupation of P., was not a proper mode
of requiring a return of particulars relating to
the minerals ; and that the return by the
trustees on this form was not the return of
the proprietors of the minerals referred to in
section 23, sub-section 2 of the Act. Held,
therefore, that the plaintiffs were entitled to
make a return in respect of the minerals on
a proper form in pursuance of a further notice
from the Commissioners. Foran v. Att.-Gen.,
84 L. J. Ch. 456; [1915] 1 Ch. 703;
113 L. T. 23; 59 S. J. 849; 31 T. L .R. 285
-C.A.
Semble, that in a case where the original
capital value of minerals can be treated as nil
under section 23, sub-section 2, the proprietor
of the minerals is not precluded in a proper
case from applying for a substituted capital
value. lb.
Mining Lease — Rental Value — Rent " paid
by working lessee in last working year" —
Arrears of Rent — No Deduction for Super-tax,]
— By a mining lease dated May 25, 1908, a
lessor demised certain veins of coal to a com-
pany for forty-two years from 1906 at a fixed
yearly rent of 500L, payable quarterly. On
October 2, 1908, the lessor received from the
company arrears of rent for three quarters
which had become due in 1907. No other
payment of rent was made to the lessor during
the year October 1, 1908, to September 30,
1909, which was the " last working year " for
the purpose of this case within the meaning of
the Finance (1909-10) Act, 1910, s. 20, sub-s. 2 :
Held, that, although these arrears were due
in respect of a period antecedent to October 1,
1908, they were rent " paid by the working
lessee in the last working year " in respect
of the right to work minerals within the mean-
ing of the Finance (1909-10) Act, 1910, s. 20,
and the lessor was therefore assessable to
mineral rights duty in respect thereof. Held,
further, that in ascertaining the rental value
of the mineral rights no deduction could be
allowed in respect of super-tax which is charge-
able under section 6G — payable by the lessor in
respect of the rent as part of his total income.
Beaufort (Duke) v. Inland Revenue Commis-
sioners; Anglesey (Marquess) v. .Same, 82 L. J.
K.B. 865; [1913] 3 K.B. 48; 108 L. T. 902;
29 T. L. R. 534— C.A.
Decision of Hamilton, J. (81 L. J. K.B. 588;
[1912] 2 K.B. 281), affirmed. lb.
Landlord's Property Tax.]— A lessor is not
assessable to mineral rights duty under the
Finance (1909-10) Act, 1910, s. 20. on a sum
deducted by the lessee from the rent in respect
of landlord's property tax, but only on the
gross amount of the rent less the sum so
deducted. lb.
Lease of Minerals Underlying Copyholder's
Lands by Lords of Manor — Copyholder's Right
to Support — Grant to Lessee of Lords of
Manor of Right to Work — Supporting Minerals
by Copyholder — "Right to work minerals."!
— The lords of a iiKUKir leased to a colliery
company the right to work minerals lying
under copyhold lands of tlie manor subject to
the copyholder's right to support. Bv a certain
indenture the copyholder " demised " to the
colliery company at a " rent " calculated on
the amount of minerals brought to surface the
right to " work get and carry away " the
minerals which afforded support to his land
without leaving it any support : — Held, that
the right granted by the copyholder was not
a right to work minerals within the meaning
of section 20, sub-sections 1 and 2 (a) of the
Finance (1909-10) Act, 1910, but a right to
let down the surface, and that the copyholder
was not therefore liable to pay mineral rights
duty in respect of the right granted. Inland
Revenue Commissioners v. Joicey (No. 2),
82 L. J. K.B. 784; [1913] 2 K.B. 580;
108 L. T. 738; 57 S. J. 557; 29 T. L. R. 537
-C.A.
" Access to or conveyance of the minerals."]
— The appellant leased certain lands to a coal
company for mining purposes, and the rent
payable by the company under the lease
included (inter alia) certain rents by way of
percentage calculated upon the amount of coal
brought upon and carried over the appellant's
land from mines not on her land and described
in the lease as " foreign " mines. The appel-
lant received from the company as rent for one
year under the lease, 4,966Z., which included
two sums of 436Z. 7s. lid. and 351L 9s. 4d.
paid to her in respect of coal not worked under
the mining lease, but respectively brought
from " foreign " mines to bank on the appel-
lant's land and carried over her land. She
was assessed for mineral rights duty under
section 20 of the Finance (1909-10) Act, 1910,
on these two sums in respect of mineral way-
leaves : — Held, that mineral rights duty was
payable under section 20 of the Act of 1910
in respect of minerals, which, although not
her property, were carried over her land as
wayleaves. Storey v. Inland Revenue Com-
missioners, 83 L. J. K.B. 251; [1914] 1 K.B.
87; 109 L. T. 559; 58 S. J. 121; 30 T. L. R.
39— Scrutton, J.
Commissioners' Right of Appeal to High
Court — "Any person aggrieved" — Rules as
to Appeals by Subject — Casus Omissus.] --
By the Finance (1909-10) Act, 1910, s. 33,
sub-s. 4, " Any person aggrieved by the
decision of the referee may appeal against the
decision to the High Court within the time
and in the manner and on the conditions
directed by Rules of Court." The Revenue
Act, 1911, s. 7, declares that the Commissioners
of Inland Revenue have, under section 33,
sub-section 4 of the Finance (1909-10) Act,
1910, a " right of appeal to the High Court
against the decision as persons aggrieved
within the meaning of that provision." Rules
of Court were made on January 16, 1911,
before the Revenue Act, 1911, came into oper-
ation. The respondent having been assessed
to mineral rights duty, appealed to the referee,
who held that he was not assessable to this
duty. The Commissioners appealed by petition
to the High Court, but the respondent took
the preliminary objection that there was no
machinery liy which the Commissioners could
appeal to the High Court because the Rules of
January 16, 1911, did not provide for an
appeal by the Commissioners : — Held, that,
although the Rules were primarily intended to
1319
KEVENUE.
1320
deal with an appeal by the subject, they
sufficiently laid down the time, manner, and
conditions of an appeal by the Commissioners ;
that it was not necessary that the Rules should
lay down all the conditions, but that when
there was a casus omissus resort might be had
to the general Rules of the Supreme Court.
Inland Revenue Commissioners v. Joicey
(No. 1), 82 L. J. K.B. 162 ; [1913] 1 K.B. 445 ;
108 L. T. 135; 29 T. L. R. 150— C.A.
VI. LEGACY DUTY.
See also Vol. XII. 210. 1266.
Persons Entitled in Succession — Contingent
Class— No Gift over— Different Rates of Duty
— Mode of Payment. 1 — A testator gave his
residuary estate upon trusts for sale and con-
version and to pay the income of the proceeds
to three persons during their joint lives in
equal shares with remainder (in the events
that happened), both as to income and capital,
to all their children living at the death of the
survivor of them who should attain twenty-one,
or being female marry. The will contained
no gift over in the event of the life tenants
dying without issue w^ho would take a vested
interest. At the death of the testator the life
tenants were all under thirty years of age and
unmarried. The life tenants were chargeable
with legacy duty at 10 per cent, upon their
interests, and their issue would also be charge-
able at the same rate. The next-of-kin of the
testator who were entitled in default of the
contingent class of issue consisted of several
persons who would be chargeable with legacy
duty at 1 per cent, and 5 percent, respectively :
— Held, that different persons being entitled
in succession, and the rates of payment being
different, the case fell within the latter part
of section 12 of the Legacy Duty Act, 1796,
and that section 17 of that Act did not apply.
Accordingly, the executors should pay duty
calculated at 10 per cent, on the value of the
life interest out of income, by instalments
spread over four years. Should the life tenants
die during that period the instalments would
cease, and the ultimate duty be payable by the
remaindermen at the proper rate. Duppa, In
re; Fowler v. Dtippa, 81 L. J. Ch. 737 ; [1912]
2 Ch. 445; 107 L. T. 622; 56 S. J. 721—
Swinfen Eady, J.
Free of "Legacy duty" — Specific Legacy
— Property Abroad — French Mutation Duty —
Penalties for Non-payment — Incidence.] — A
testator domiciled in England bequeathed to
a legatee " free of legacy duty " certain specific
chattels which were in France : — Held, that
the words " legacy duty " did not include the
French duty known as droits de mutation par
dicis, or " mutation duty," but were confined
to legacy duty in the strict sense. Such
" mutation duty " is not a charge and expense
of the executors payable out of the general
estate, and penalties imposed by the French
law for delay in paying the mutation duty are
equivalent to an additional mutation duty.
Scott. In re; Scott v. Scott (No. 1), 84 L. J.
Ch. 366; [1915] 1 Ch. 592; 112 L. T. 1057;
31 T. L. R. 227— C.A.
It is not the duty of the executors at the
expense of the general estate to deliver
chattels specifically bequeathed to the legatees.
Perry v. Meddotvcroft (12 L. J. Ch. 104;
4 Beav. 197) doubted. 7b.
Decision of Warrington, J. (83 L. J. Ch.
694; [1914] 1 Ch. 847), affirmed. 76.
— Estate Duty — New Duty Imposed after
Death of Testatrix — Incidence of Duties.] — A
gift " free of all duty " can properly be
extended so as to include new duties imposed
between the date of the will and the death
of the testator. But this principle has no
application where a new duty has been im-
posed or an exemption has been abolished after
the date when the will comes into operation.
A testatrix bequeathed a sum of 6,00(5Z. " free
of all duty " upon trust for her niece for life,
and after her death for her children, with an
ultimate trust, in the event of no child attain-
ing a vested interest, to certain charities.
The testatrix died in January, 1913. The
niece was still living and unmarried : — Held,
that the legacy duty was payable out of the
general estate, but that the estate duty pay-
able on the death of the niece, by virtue of the
Finance Act, 1914, s. 14, would be payable
out of the legacy itself. Snape, In re; Elam
V. Phillips, 84 L. J. Ch. 803; [1915] 2 Ch.
179; 113 L. T. 439; 59 S. J. 562— Eve, J.
Turnhull, In re; Skipper v. Wade (74 L. J.
Ch. 438; [1905] 1 Ch. 726), applied. lb.
Settlement on Successive Persons —
Erroneous Payment of Duty out of Corpus —
Rectification of Error.] — A testator, having
by his will appointed three executors, gave a
sum of money to special trustees on trust for
M. S. for life with a power of appointment to
M. S. over a portion of the sum and a direction
that the remainder should on her death be paid
by the special trustees to the executors so
that the same should sink into his residuary
estate. He devised his residue to one of his
executors for life with remainder to another
executor absolutely. By sections 8, 12, and 13
of the Legacy Duty Act. 1796, the legacy
should have been paid by the executors to the
special trustees without deduction of legacy
duty and the latter should have paid the
legacy duty on the interest of M. S. out of the
income in four annual instalments. The
executors properly paid the settlement estate
duty, and also in error, with the approval of
the special trustees, paid the legacy duty, and
handed over to the special trustees the balance
of the legacy : — Held, that in the circum-
stances the fact of the payment of the legacy
duty having been made by the executors
instead of the special trustees was immaterial,
and that, notwithstanding that two of the
executors had an interest in the corpus of the
legacy, the sum which had been overpaid to
M. S. by reason of the error should be retained
by the special trustees out of the future pay-
ments of her income. Ainsicorth, In re; Finch
V. Smith, 84 L. J. Ch. 701; [1915] 2 Ch. 96;
113 L. T. 368; 31 T. L. R. 392— Joyce, J.
VII. SUCCESSION DUTY.
See also Vol. XII. 244. 1270.
Legacies Free of Legacy Duty — Whether
Succession Duty Included.] — After giving car-
1321
REVENUE.
1322
tain pecuniary legacies, the testator devised
a freehold farm to F. and directed " all said
legacies to be paid free of legacy duty " : —
Held, not to apply to the devise of the farm so
as to cover succession duty. EUard v. Phelan,
[1914] 1 Ir. R. 76— Ross, J.
Settled Land — Liability to Pay Interest —
Capital Moneys Derived from Land Applied
in Discharge of Incumbrances on Heirlooms —
Jointure — "Free from all deductions."] — In
1889 estates were settled in strict settlement
and heirlooms were settled upon trusts to cor-
respond as nearly as might be to the uses of
the freeholds. Under that settlement the
seventh Earl of Egmont became tenant for life
and the eighth became tenant for life in
remainder. The seventh earl died in 1897.
Under a power contained in the settlement
the eighth earl granted to his wife a jointure
" free from all deductions." He died in
1910. Estate duty and succession duty on the
heirlooms were not paid in 1897, and the
Crown now claimed the duties and interest
thereon. The trustees had in their hands
investments representing capital moneys and
rents accrued during the lives of the eighth
and the present earl : — Held, that the settle-
ment must be treated as one settlement of
the estates and of the heirlooms ; that the
interest must be paid out of the income of the
estate accrued during the lives of the tenants
for life ; that capital moneys raised from other
parts of the settled property might be applied
in discharging incumbrances on the heir-
looms ; and that according to the true con-
struction of the settlement and grant the
succession duty on the jointure must be paid
out of the capital moneys. EgmonVs (Earl)
Settled Estates, In re; Lefroy v. Egmont,
81 L. J. Ch. 250; [1912] 1 Ch. 251 ; 105 L. T.
292— Warrington, J.
VIII. ESTATE DUTY.
1 When Payable.
See also Vol. XII. 274, 1278.
Advowson — Proceeds of Sale — Chargeability
to Duty.'! — -By section 15, sub-section 4 of
the Finance Act, 1894, " Estate duty shall not
be payable in respect of any advowson or
church patronage which would have been free
from succession duty under section twenty-four
of the Succession Duty Act, 1853." By sec-
tion 24 of the Succession Duty Act, 1853, " A
successor shall not be chargeable with duty in
respect of any advowson or church patronage
comprised in his succession, unless the same
. . . shall be disposed of by or in concert with
him for money or money's worth, in which case
he shall be chargeable with duty upon the
amount or value of the money or money's
worth, for which the same . . . shall be so
disposed of at the time of such disposal." A
testator, who died in 1898, by his will left
property, including two advowsons, to three of
the defendants as trustees, to the use of his
son C. for life, with remainder to the use of
his grandson W., the other defendant, for life,
with remainders over. C. died in 1901, and
in 1905 W. attained the age of twenty-one,
and in 1909, under the powers vested in him
by the Settled Land Acts, 1882 and 1890, sold
the two advowsons. Upon an information by
the Attorney-General claiming a declaration
that the defendants, upon the death of either
the testator or his son, became liable to pay
estate duty and settlement estate duty in
respect of the advowsons, — Held, that upon the
true construction of the above enactments these
duties were not payable. Att.-Gen. v. Peek,
82 L. J. K.B. 767; [1913] 2 K.B. 487;
108 L. T. 744— C. A.
Decision of Hamilton, J. (81 L. J. K.B. 574 ;
[1912] 2 K.B. 192), affirmed. lb.
Bona Fide Bargain and Conveyance.] —
Estate duty will not be payable under sec-
tion 59 of the Finance Act, 1910, in respect
of property which has been the subject of a
bona fide bargain and conveyance, even if the
consideration be less than the full value of
the property. Weir and Pitt's Contract, In re,
55 S. J. 536— Warrington, J.
Deed of Gift — "Entire exclusion of the
donor" — Benefit to Donor "by contract or
otherwise."] — By the effect of the Customs
and Inland Revenue Acts, 1881 and 1889, and
the Finance Act, 1894, estate duty is payable
on property taken under any gift of which
bona fide possession and enjoyment shall not
have been assumed by the donee immediately
upon the gift and thenceforward retained, to
the entire exclusion of the donor or of any
benefit to him by contract or otherwise :■ —
Held, where the donor of all his property was
allowed to continue to reside with the donee
in the house, part of the gift, until his death,
that nevertheless estate duty was not payable
unless the proper inference as a matter of
fact to be drawn from the residence and the
circumstances was that the possession and
enjoyment of the donee were not assumed
bona fide, and that the whole transaction was
a sham and a device to avoid the payment of
duty. Att.-Gen. v. Seccombe, 80 L.'.T. K.B.
913; [1911] 2 K.B. 688; 105 L. T. 18—
Hamilton, J.
The words " or otherwise " in section 11,
sub-section 1 of the Customs and Inland
Revenue Act, 1889, refer to any transaction
legally enforceable which, although not in
form a C/ontract, may confer a benefit — as, for
example, a lien. Ih.
English Domicil — Personalty Outside United
Kingdom — General Executors — Foreign Exe-
cutors of Property Outside — General Execu-
tors Liable for Duties.' — .\ testatrix domiciled
in JOtigland, aft(>r appointing two Englishmen
" general executors and trustees " of her will,
appointed three Americans executors and
trustees of her property in America : — Held,
that estate duty and settlement estate duty
were payable upon the testatrix's American
personalty, and that the English executors
were liable for the duties thereon to the
extent to which assets of the testatrix came
or would but for their neglect or default come
to their hands. Manchester (Duchess), In re;
Duncannon (Viscount) v. Manchester (Duke),
81 L. J. Ch. 329; [1912] 1 Ch. 540; 106 L. T.
1323
KEVENUE.
1324
332; 56 S. J. 429; 28 T. L. E. 241, 260—
Swinfen Eady, J.
Objects of National Interest — Heirlooms.]
— Held, that no part of the testator's general
personal estate should be set aside or retained
to provide for estate duty or other duty in
respect of certain heirlooms settled by his will
which had been certified to be of national,
scientific, historic, or artistic interest. Lecon-
field, In re (20 T. L. E. 347), followed.
Swaythling (Lord), In re; Samuel v. Sway-
thling, 57 'S. J. 173; 29 T. L. E. 88— Neville,
J.
Exemption of Works of Art from Duty till
Sale — Enjoyment in Kind.] — In construing
section 20 of the Finance Act, 1896, as amended
by section 63 of the Finance (1909-10) Act,
1910, no distinction can be drawn between
enjoyment in kind for a moment of time and
enjoyment in kind for a period of years, and
accordingly a legatee of exempted articles
under the section had " enjoyed them in kind,"
although only for the moment of time during
which they passed from the executor's agent,
through her agent, to the purchaser from her,
and such legatee was accordingly accountable,
and liable to pay the duty on the exempted
articles. Scott, In re; Scott v. Scott (No. 3),
60 S. J. 157— Neville, J.
" Property passing on the deatii of the
deceased" — Partnership — Sale of Share of
Deceased Partner — Goodwill.] — By an inden-
ture of partnership entered into between a
father and his two sons, the defendants, it was
provided that on the death of the father his
share of the partnership should accrue to the
defendants, subject to their paying to his legal
personal representatives the value of the share,
but with a provision that in ascertaining the
value of the share no valuation of or allowance
for goodwill should be made. The defendants
covenanted that they would devote all their
time to the business necessary for its proper
conduct, it being provided that the father need
not give more time to it than he thought fit.
They also agreed not to undertake any other
business. The partnership was constituted
subject to the payment of certain existing
liabilities. The father died, and his share
having been valued in accordance with the
above provisions, the defendants paid the
amount of the valuation to the personal repre-
sentatives of the deceased, and estate duty was
duly paid thereon : — Held, that no further
estate duty was payable on the value of the
goodwill under section 1 or 2, sub-section 1 (b),
(c), or (d) of the Finance Act, 1894, on the
ground that on the evidence the value of the
goodwill was small, that the defendants had
given full consideration in money or money's
worth for it within the meaning of section 3,
sub-section 1 of the Act in undertaking the
obligations and covenants of the partnership,
and tliat the partnership transaction was a
commercial one and did not contain any dona-
tive element. Att.-Cien. v. Baden, 81 L/. J.
K.B. 704; [1912] 1 K.B. 539; 105 L. T. 247—
Hamilton, J.
" Full consideration in money or money's
worth" — Jurisdiction of Court.] — The ques-
tion whether full consideration in money or
money's worth has been given within the
meaning of section 3 of the Act is for the
Court and not for the Commissioners of
Inland Eevenue. lb.
Property Reverting to " Disponer " — Dis-
position— Husband's Life Interest in Marriage
Contract Fund Forfeited to Wife in Conse-
quence of Decree of Divorce, Reverting to
him on her Death.] — In consequence of the
dissolution of a marriage by decree of divorce
on the ground of the husband's adultery, the
income of a fund — which under the marriage
contract was settled by the husband's father
on him, and after his death on his wafe for
their liferent alimentary uses respectively —
was paid to the wife until her death, after
which event it again became payable to the
husband : — Held (Lord Johnston dissenting),
that estate and succession duties were payable
on the property passing to the husband on the
wife's death, the exemptions created by sec-
tion 15, sub-section 1 of the Finance Act, 1896,
in the case of estate duty where property
reverts to the " disponer " and by section 12
of the Succession Duty Act, 1853, in the case
of succession duty where a person takes a
succession under a " disposition " granted by
himself, being inapplicable, in respect that the
wife had acquired the income as a legal
consequence of the decree of divorce and not
by a " disposition " from her husband. Lord
Advocate v. Montgomery's Trustees, [1914]
S. C. 414— Ct. of Sess.
Exemption from Duty — Settled Property —
Covenant to Settle After-acquired Property —
Probate Duty.] — The property exemjjted from
estate duty by section 21, sub-section 1 of the
Finance Act, 1894, is limited to property settled
at the date when the liability to probate duty
arose, and must be property in the settlement
of which the will or disposition of the person
on whose estate the probate duty is paid or
payable forms an integral part. It is not
sufficient to bring a case within the sub-section
to shew that the property is settled by some
other instrument at the date when probate
duty becomes payable, still less to shew that
it is subject to a covenant to settle. Before
any right to exemption can be established, it
is necessary to find a will or disposition by
the person on whose property probate duty is
paid or payable constituting part of the settle-
ment. Torrington (Viscountess). In re, 83 L. J.
Ch. 8; [1913] 2 Ch. 623; 109 L. T. 541;
57 S. J. 730; 29 T. L. E. 742— Eve, J.
2. Amount on w^hich Payable.
See also Vol. XII. 1293.
Recoupment — Covenant to Settle Sum —
Debt Unpaid at Death — Settlement Registered
in Victoria — English and Australian Assets —
Duty on Registration — Right to Resort to
Victorian Assets — Right of Deduction from
Debt.l — D. in 1890 covenanted to pay
20,0O0L to the trustees of his marriage settle-
ment, to be held as to one moiety upon trust
for himself for life, remainder to his wife for
life, and as to the other moiety upon trust
1325
REVENUE.
1326
for his wife for life with remainder to himself
for life, with remainder as to the whole fund
to the children of the marriage, and died in
1911 without having paid the 20,000/. which
with an arrear of interest was still owing to
the trustees. He left estate in England and
Australia, apart from assets in Victoria, of
more than 45,000/. His executors registered
the marriage settlement in Victoria, thereby
reducing the duties payable in the colony by
the duties which would have been payable
there on the 20,000/. debt and rendering the
covenant in the settlement enforceable against
the testator's Victorian assets. They also
paid estate duty on the testator's estate with-
out deducting the 20,000/. debt, but with a
deduction in respect of the duties paid in
Australia. The executors claimed to deduct
from the 20,000/. as against the settlement
trustees : (a) A rateable part of the estate duty
paid in England on the 20,000/. ; (b) the regis-
tration duty paid in Victoria : — Held, follow-
ing Gratj, In re; Gray v. Gray (65 L. J.
Ch. 462; [1896] 1 Ch. 620), that, the 20,000/.
being an unpaid debt to the trustees at D.'s
death, they were not liable for any part of the
estate duty in respect of it, and that although
the executors had acted properly in registering
the settlement in Victoria, yet in so doing they
were not agents for the trustees, who had no
need to resort to the Victorian assets, and
were not liable to pay part of their debtor's
probate duty, and neither amount could be
deducted from the 20,000/., which must be paid
in full. Dowling, In re; Dowling v. Femvick,
108 L. T. 671— Eve, J.
3. By whom Payable.
See also Vol. XII. 1296.
Deductions Allowable as Incumbrances —
" Incumbrances created by a disposition made
by the deceased" — "Disposition taking effect
out of the interest of the deceased " — Provi-
sions for Widow and Children.] — By his will
A directed his trustees to pay an annuity out
of his estate to B, and also, should B request
them to do so, to burden the estate with pro-
visions for B's wife and family. On the death
of B the fee of the estate was directed to be
conveyed to C. After A's death his trustees
paid the annuity to B during his life, and also,
at B's request, burdened the estate with bonds
of provision for his widow and children. On
B's death the estate was conveyed to C, who
in adjusting estate duty with the Inland
Revenue sought to make deductions in respect
of the provisions to B's widow and children.
The Inland Revenue refused to allow the
deductions, and C paid duty on the whole
estate. A question having arisen as to C's
right to recover from the widow and children
the estate duty paid in respect of their pro-
visions,--//e/(7, that as these circumstances
were not "created by a disposition made by "
B in the sense of section 7, sub-section 1 (a)
of the Finance Act, 1894, and did not take
effect " out of the interest of B " in the sense
of section 22, sub-section 2 (6), they were
deductible; and, accordingly, that C could not
recover from the beneficiaries this estate duty
•which he ought not to have paid. Colquhoun's
Trustees v. Abercromby, [1913] S. C. 874—
Ct. of Sess.
4. Inxidence and Payment.
See also Vol. XII. 129a.
Appointment of Specified Amounts.] — The
donee of a power of appointment, which was
to take effect after lier death, appointed specific
sums to certain persons and made an appoint-
ment of the residue. In certain cases the
appointment was of a "net " sum "clear of
all expenses of raising the same." All the
appointments except two were of a sum
together with 4 per cent, interest from the
appointor's death. The appointor died in
1913 : — Held, that the estate duty was payable
out of the residuary sum appointed, and that
all the fixed sums bore interest at 4 per cent,
from the appointor's death. Grant, In re;
Nevinson v. United Kingdom Temperance and
General Provident Institution, 85 L. J. Ch. 31 ;
112 L. T. 1126; 59 S. J. 316; 31 T. L. R. 235
— Sargant, J.
English Domicil — Foreign Articles.] — All
foreign articles of a testator domiciled in
England pass under his will to his executor
as such, and, in the absence of directions to
pay the duty out of the legacy, it is payable
by him out of the residuary personal estate.
Hadley, In re; Johnson v. Hadley (78 L. J.
Ch. 254; [1909] 1 Ch. 20), followed. Scott,
In re; Scott v. Scott {No. 3), 60 S. J. 157—
Neville, J.
Covenant to Pay Sum to Trustees of Daugh-
ter— Equitable Charge on Specific Realty —
Trustees not Bound to Resort to Security in
First Instance.] — A sum of money was cove-
nanted to be paid to the marriage settlement
trustees of the settlor's daughter within six
months of his death, and an equitable charge
to secure payment was given on specific real
estate, but the trustees were not to be bound
to resort in the first instance to this security,
but might demand payment from the executors,
which course they adopted. There was ample
personal estate, which as part of a mixed fund
was in trust for payment of debts and legacies,
&c., and the executors paid estate duty on it
without deducting the covenanted sum. They
claimed to recover under section 14, sub-
section 1 of the Finance Act, 1894, a propor-
tion of the duty from the sum payable under
the covenant as being a sum charged on pro-
perty not passing to the executors as such : —
Held, that the Court must follow the decision
of the Court of Session in .Alexander' s Trustees
V. Alexander's Trustees ([1910] S. C. 637),
and that the trustees were bound to pay the
proper rateable part of the duty in respect of
the property comprised in their security.
Dixon Hartland, In re; Banks v. Hartland,
80 L. J. Ch. 305; [1911] 1 Cli. 459; 104 L. T.
490; 55 S. J. 312— Swinfen Eady. J.
Devise "free of any incumbrances."] — A
testator by his will made in 1908 devised a
messuage and premises " free of any incum-
brances." At the date of his deatli in 1912
tlu- title deeds of the premises were on deposit
1327
EEVENUE.
1328
at a bank as part of the security for an over-
draft : — Held, that the words "free of any
incumbrances " were inserted in the will for
the purpose of relieving the property from any
charge wliatsoever, and that the payment of
estate duty and succession duty was thrown
upon the general residue. Nesfield, In re;
Barber v. Cooper, 110 L. T. 970; 59 S. J. 44
— Joyce, J.
Donatio Mortis Causa — "Property whicli
does not pass to the executor as such."] — A
donatio mortis causa is " property which does
not pass to tlie executor as such " within
section 9, sub-section 1 of the Finance Act,
1894. Hudson, In re; Spencer v. Turner,
80 L. J. Ch. 129; [1911] 1 Ch. 206; 103 L. T.
718 — Warrington, J.
Qurnre, whether the subject-matter of a
donatio mortis causa is property of which the
deceased was competent to dispose at his death
within the meaning of the Finance Act, 1894.
lb.
" Testamentary expenses."] — Estate
duty on a donatio inortis causa is not a
testamentary expense." Porte v. Williams
(80 L. J. Ch. 127) followed. Accordingly,
estate duty leviable in respect of a donatio
mortis causa must be borne by the donee, not-
withstanding a direction for payment of
" testamentary expenses " out of the estate
of the donor. 76.
Fund Appointed by Deed-poll — Specific Sum
Dealt with by Will of Tenant for Life —
Residue Dealt with by Will of Appointor —
Estate Duty Payable on Death of Appointor
— Apportionment between Two Parts of
Fund.] — By a deed-poll an appointor ap-
pointed the income of a fund to himself during
his lifetime, and after his death to his wife,
if she should survive him, and after the death
of the survivor of them, 10,000L, part of the
fund, as his wife should by will appoint, the
remainder of the fund to fall into his residuary
estate to be disposed of by his will. He dis-
posed of his residuary estate by his will, and
died in 1908, and the estate duty was paid
on the whole of the fund. The wife appointed
the 10,000/. by her will i^Held, on the death
of the wife that the estate duty payable on the
death of the appointor should be apportioned
between the two parts of the fund. Berry v.
Gaukroger (72 L. J. Ch. 319, 435; [1903]
2 Ch. 116) applied. CharJesworth, In re; Tew
V. Briggs, 81 L. J. Ch. 267 ; [1912] 1 Ch. 319 ;
105 L. T. 817 ; 5G S. J. 108— Joyce, J.
Legacies and Annuities " free from legacy
duty respectively" — "Testamentary ex-
penses"— "Clear money."] — A testator de-
vised his residuary n^al estate upon trust for
sale, and to stand possessed of the " clear
money " to arise from such sale upon the trusts
thereinafter declared of his residuary personal
estate. The testator then gave a number of
pecuniary legacies, some of which were settled
as therein mentioned, and also directed pay-
ment of various annuities. The testator
declared that he intended to give all the
legacies and annuities thereby bequeathed,
and directed that the same " shall be paid or
appropriated free from legacy duty respec-
tively." The testator bequeathed his residuary
personal estate, including the " clear money "
to arise from the sale of his real estate (with
certain exceptions) upon trust for sale and
conversion, and to pay his funeral and testa-
mentary expenses, debts, and legacies, and the
annuities thereinbefore directed to be paid,
and the duties on the legacies and annuities,
as well as all settlement estate duty, and to
stand possessed of all the residue as therein
mentioned : — Held, that all the pecuniary
legacies (settled and unsettled) and the
annuities were given free of estate duty.
Spencer Cooper, In re; Poe v. Spencer Cooper
([1908] 1 Ch. 130), discussed. Palmer, In re;
Leventhorpe v. Palmer, 106 L. T. 319— C.A.
Reversionary Interest in Settled Fund —
Residuary Estate — Payment — " Testamentary
expenses."]— Where a testator dies possessed
of the reversionary interest in a settled fund,
estate duty on this reversionary interest under
section 1 of the Finance Act, 1894, is payable
out of his residuary estate, either immediately
or, by virtue of section 7, sub-section 6, when
the reversion falls into possession. Dixon,
In re; Penfold v. Dixon (71 L. J. Ch. 96;
[1902] 1 Ch. 248), overruled. Avery, In re;
Pinsent v. Avery, 82 L. J. Ch. 434; [1913]
1 Ch. 208; 108 L. T. 1 ; 57 S. J. 112— C.A.
Settlement of Land — Trust for Sale — Land
not Sold — Land Notionally Converted — Exer-
cise of General Power of Appointment by
Will — " Property passing to executor as
such."] — By a marriage settlement made in
1881 a settlor conveyed land to trustees upon
trust for sale, and to hold the proceeds of sale
upon trust for such person or persons as the
settlor should by deed or will appoint. By
her will the settlor appointed that the property
which remained unconverted at her death
should be conveyed and transferred to the
trustees of her will upon trust for sale, with
power to postpone conversion and upon trust
to pay the income to her husband for life with
remainders over, and she made him residuary
legatee -.—Held, that the appointed property
being at the settlor's death notionally con-
verted into personalty, it passed, by virtue of
the exercise of the general power of appoint-
ment, as personalty to the executors (as such),
and that the estate duty upon it was therefore
payable out of the settlor's residuary personal
estate. O'Grady, In re; O'Grady v. Wilmot,
84 L. J. Ch. 496: [1915] 1 Ch. 6i3; 112 L. T.
615; 59 S. J. 332— C.A.
Decision of Eve, J. (84 L. J. Ch. 181;
[1915] 1 Ch. 39), reversed. lb.
Will — Power of Appointment — Power only
Partially Exercised — " Testamentary ex-
penses " of Appointor — Estate Duty on
Portion of Fund not Appointed.] — A testatrix
with a general power of appointment over a
certain fund, which she declined to exercise,
except to a very small and partial extent,
directed by her will that her executors should
pay her funeral and testamentary expenses
out of the residue of her estate : — Held, that
the estate duty in respect of the unappointed
fund was not a " testamentary expense " of
1329
REVENUE.
1330
the testatrix, and that her executors, having
paid it, were entitled to repayment out of the
fund. Porte v. Williams, 80 L. J. Ch. 127 ;
[1911] 1 Ch. 188; 103 L. T. 798; 55 S. J. 45
— Joyce, J.
Special Power of Appointment — Portions —
Estate Duty — " Everything passing under this
my will " to be Free of Duty — Portions
Appointed under Power Pass under Will.] —
By his marriage settlement a settlor, in exer-
cise of a power of appointment, appointed
certain estates to trustees for a term of years
upon trust to raise, for the portion or portions
of any children of the marriage, a sum of
20,000/. to be divided between them as he
should by deed or will appoint, or, in default
of appointment, equally. By his will the
settlor, who had five children, appointed the
20,000L to his three daughters in equal shares,
and after bequeathing certain legacies free of
estate and legacy duty by clause 8, bequeathed
various moneys and securities upon trust to
pay his funeral and testamentary expenses,
" including estate duty on everything passing
under this my will " : — Held, that, upon the
true construction of the will the appointed
portions passed under the will, so that the
estate duty payable upon the portions fund
was payable out of the property disposed of
under clause 8 of the will. Bath's (Marquis)
Settlement, In re; Thijnne v. Shaw-Stewart,
111 L. T. 153; 58 S. J. 578— Joyce, J.
Direction to Pay "all death duties" out of
Residue — Covenant by Testator to Pay Money
to Daughter's Marriage Settlement Trustees
— Mortgage to Secure Money — Death Duties
on Settled Money Rateable Part of Estate
Duty.] — Where by his will a testator directs
his trustees to pay " all death duties " out of
his residue, he must be presumed to mean
thereby all duties in fact payable by the
trustees of the will without any statutory right
in the trustees to recover them from any other
persons. Briggs, In re ; Richardson v. Bantoft,
83 L. J. Ch. 874; [1914] 2 Ch. 413; 111 L. T.
939; 58 S. J. 722— Astbury, J.
So, where a testator had in his lifetime
mortgaged an estate to the trustees of his
daughter's marriage settlement to secure a
sum which he had covenanted to pay to them
on or before his death, and the sum was not
paid in his lifetime, a direction in his will to
his trustees to pay " all death duties " out of
his residue will not include the rateable part
of the estate duty in respect of the sum secured
by the mortgage recoverable by the trustees
of the will from the trustees of the marriage
settlement under section 14, sub-section 1 of
the Finance Act, 1894. This rateable part and
the settlement estate duty and the succession
duty must therefore be paid by the settlement
trustees out of the settled fund. lb.
"Free of all duty" — Estate Duty — New
Duty Imposed after Death of Testatrix —
Incidence. l^A tesfatrix beiiueathed a sum of
6.000/., " free of all duty," upon trust for her
niece for life, and after her death for her
children, with an ultimate trust, in the event
of no child of the niece attaining a vested
interest, to certain charitable institutions.
The testatrix died in January, 1913. The
niece was still living and unmarried : — Held,
that the legacy duty in respect of the said
sum was payable out of the general estate,
but that the estate duty payable on the
death of the niece would be payable out of
the legacv itself. Turnhull, In re; Skipper v.
Wade (74 L. J. Ch. 438; [1905] 1 Ch. 726)
applied. Snape, In re; Elam v. Phillips,
84 L. J. Ch. 803; [1915] 2 Ch. 179; 113 L. T.
439; 59 S. J. 562— Eve, J.
Legacies in "this my will."] — See
Trinder, In re, post, col. 1804.
5. Mode of Assessment.
See also Vol. XII. 1,306.
Real and Personal Estate — Settled Lands —
Aggregation.] — Section 12, sub-section 2 of
the Finance Act, 1900, cannot be construed
(as contended by the Commissioners of Inland
Revenue) as if the words " if the Finance
Act, 1894, had been passed prior to the death
of the disponer " were substituted for the
words " if the disponer had died after the said
Part " — that is, Part I. of the Finance Act,
1894, only interposing after the words " the
said Part," " and in the event of all parties
having estates and interests under the settle-
ment dying before the Finance Act, 1894, came
into operation." Therefore, where freehold
lands were subject to the following limitations
which took effect — namely, to A for life, re-
mainder to B, the disponer, for life, remainder
to C, and B died in 1863, A died in 1864, and
C died in 1911, possessed of the estate, — Held,
that for the pui"pose of assessing the rate of
duty payable in respect of C"s estate there was
no aggregation. Edgeworth v. Inland Revenue
Commissioners, [1912] 2 Ir. E. 606— K.B. D.
Settled Property Passing on Death — Dis-
poner Entitled in Reversion — Hypothetical
Date of Death — Aggregation.] — Section 1 of
the Finance Act, 1894, provides that estate
duty shall be payable in the case of every
person dying after August 1, 1894, upon all
property passing on the death of such person.
By section 5, sub-section 3, in the case of
settled property, where the interest of any
person under a settlement fails or determines
by reason of his death before it becomes an
interest in possession, and subsequent limita-
tions under the settlement continue to subsist,
the property shall not be deemed to pass on his
death. Section 12, sub-section 2 of the Finance
Act, 1900, provides that where settled property
passes or is deemed to pass on the death of a
person dying after April 9, 1900, under a dis-
position made by a person dying before
August 2, 1894, and such property would, if
the disponer had died after August 1, 1894,
have been liable to estate duty upon his death,
the aggregation of such property with other
property passing upon the first-mentioned
death, shall not operate to enhance the rate of
duty payable eitlier upon the settled property
or upon any other property so passing by more
than i per cent, in excess of tlie rate at which
duty would have been payable if such settled
property had been treated as an estate by
1331
REVENUE.
1332
itself. By section 16 of the Finance Act, 1907,
in the case of a person dying after April 19,
1907, any settled property which would, under
section 12 of the Finance Act, 1900, be aggre-
gated with other property so as to enhance the
rate of duty to the limited extent provided in
that section, shall, for the purposes of the
Finance Act, 1894, instead of being so aggre-
gated, be treated as an estate by itself. In
1864, by a marriage settlement, a sum of
money, to which the wife was entitled in
reversion subject to the successive life interests
of her father and mother, was assigned by her
to trustees on trust to pay the income to the
husband and wife for their lives, and after the
death of the survivor to stand possessed of the
trust funds for the children of the marriage as
the husband and wife or the survivor should
by deed or will appoint. The wife died in
1876. Her mother and father died respectively
in 1884 and 1888. The husband died in 1910,
having by his will appointed the trust funds
on trust for certain of the children of the
marriage. On his death the Crown claimed
that for the purpose of ascertaining the rate
of estate duty which then became payable the
trust funds ought to be aggregated with other
property passing on his death in respect of
which estate duty then became payable : —
Held, that the claim of the Crown failed. If
the wife had died after August 1, 1894, estate
duty would on her death have been payable
in respect of the trust funds, because as her
mother and father died before that date the
trust funds would have been an interest in
possession before her death and liable at her
death to payment of estate duty, and therefore,
by reason of section 12, sub-section 2 of the
Finance Act, 1900, and section 16 of the
Finance Act, 1907, the trust funds ought not
to be aggregated with the other property pass-
ing on her husband's death. Att.-Gen. v.
Thyyme, 83 L. J. K.B. 592; [1914] 1 K.B.
351; 110 L. T. 203; 30 T. L. E. 182—
Scrutton, J.
6. Ch.^rge For.
Tenant in Tail who has not Barred Entail
— Payment of Duty by Person Having a
Limited Interest in Property — Right to
Charge.' — A tenant in tail who has not
barred the entail is a person having a limited
interest in the property within section 9, sub-
section 6 of the Finance Act, 1894; and he or
his estate, on paying the estate duty in respect
of the property, is therefore entitled to a
charge on the property for the amount paid.
Dictum of Lord Macnaghten in Lord Advocate
V. Moray (Countess) (74 L. J. P.C. 122;
[1905] A.C. 531) followed. Anson, In re;
Buller V. Anson, 84 L. J. Ch. 347; [1915]
1 Ch. 52; 111 L. T. 1065; 30 T. L. R. 694—
Sargant, J.
IX. SETTLEMENT ESTATE DUTY.
See also Vol. XII. 1310.
Obligation by Father to Pay Sum to Son's
Marriage Contract Trustees — Liability for
Settlement Estate Duty.] — ^Vheu a father
becomes a party to the marriage settlement of
a child and covenants to pay at his death a
certain sum to the marriage contract trustees,
the settlement estate duty on that sum falls to
be borne by the marriage contract trustees and
not by the father's executors. (Diss, the
Lord President.) Mary on- Wilson, In re
(69 L. J. Ch. 310; [1900] 1 Ch. 565), followed.
Dundas' Trustees v. Dundas' Trustees, [1912]
S. C. 375— Ct. of ~
Property Passing under Disposition on Death
—Property Deemed to Pass.]— A settlor by
the terms of a settlement transferred certain
shares and sums of stock to trustees in trust
for his son for life, with remainders over. He
died within three years of the making of the
settlement. Upon his death it was admitted
that the settled property was property " pass-
ing on the death of the deceased " within the
meaning of section 2, sub-section 1 of the
Finance Act, 1894, and that estate duty was
therefore payable in respect of it. The Crown
also claimed " settlement estate duty " : —
Held, that as the son took an immediate life
interest from the date of the settlement the
property did not " pass " under the settlement
on the death of the settlor, and was therefore
not liable to settlement estate duty under sec-
tion 5, sub-section 1 (a) of the Act. Att.-Gen.
V. Milne, 83 L. J. K.B. 1083; [1914] A.C.
765 ; 111 L. T. 343 ; 58 S. J. 577 ; 30 T. L. R.
476— H.L. (E.)
Judgment of the Court of Appeal (82 L. J.
K.B. 773; [1913] 2 K.B. 606) affirmed (Lord
Dunedin dissenting). lb.
See also Att.-Gen. v. Peek, ante. col. 1322;
and Briggs, In re, ante, col. 1329.
X. CORPORATION DUTY.
See also Vol. XII. 278, 1318.
Issue of Debenture Stock by Corporation —
Debenture Stock Redeemable at Future Date
— Cumulative Sinking Fund Invested in
Names of Trustees — Property Vested in Body
Corporate — Equity of Redemption.] — A cor-
poration issued debenture stock redeemable at
their option at the end of thirty years or in
any event at the end of sixty years. The
corporation covenanted with trustees for the
debenture stockholders to set aside every half-
year a sum of 7,500L, so long as the stock
remained unredeemed, and to invest these half-
yearly sums in such investments as the cor-
poration should think fit, the income thereof to
be accumulated by similarly investing the
same and the income thereof from time to
time. The fund so created was to be applied
by the corporation in or towards the redemp-
tion of the debenture stock as and when it
became redeemable. Accordingly the corpora-
tion set aside these half-yearly sums, which
were regularly invested in the purchase of
stock in the names of the trustees ; and the
interest on these funds was similarly invested
from time to time in the names of the trustees :
He/d, that the equity of redemption in the sink-
ing fund subject to the charge in favour of the
debenture stockholders belonged to the cor-
poration, and that the income thereof ought to
be brought into account for the purpose of
assessing corporation duty under the Customs
and Inland Revenue Act, 1885, s. 11, the
amount expended by the corporation in paying
the interest on the debenture stock being
1333
REVENUE.
1334
brought in by way of deduction on the other
side of the account. Att.-Gen. v. London Cor-
poTation, 82 L. J. K.B. 698: [1913] 2 K.B.
497; 108 L. T. 661; 6 Tax Cas. 313;
29 T. L. R. 494— C.A.
Exemption — Charitable Purposes.] — A
Grand Lodge of Masons claimed exemption
under sub-section (3) of section 11 of the Act
48 & 49 Yict. c. 51, in respect of the income
of certain funds devoted to the relief of
necessitous masons, or their dependants, at
the discretion of the administering bodies.
Every mason by whom, or by whose depen-
dants, benefit was received from the funds
had to some degree contributed thereto
through his lodge, but the funds were largely
derived from other sources than such contri-
butions, and the great proportion of each
individual mason's contributions to his lodge
did not go to these funds : — Held, that the
exemption applied. Incorporation of Tailors
in Glasgow v. Inland Revenue Commissioners
(2 Tax Cas. 297) and Linen and Woollen
Drapers Institution, In re (58 L. T. 949),
distinguished. Grand Lodge of Masons Y.
Inland Revenue Commissioners, [1912] S. C.
1064 ; 6 Tax Cas. 116— Ct. of Sess.
B. CUSTOMS AND EXCISE.
I. IN PARTICULAE CASES.
1. Armorial Bearings.
Use by City Guild — "Corporation."] — The
Worshipful Company of Plumbers is not a
corporation within section 19, sub-section 1
of the Eevenue Act, 1869, and is therefore
not entitled to use armorial bearings without
having taken out a proper licence. The
exception given by the section is not to a
corporation or Royal borough as such, but is
given to persons who are officers or mayors
of such corporations or boroughs. Plumbers
Co. V. London Countij Council, 108 L. T.
655; 77 J. P. 302; 11 L. G. R. 480; 23 Cox
C.C. 355; 29 T. L. E. 424— D.
Use by Member of College of Armorial
Bearings of College — Use for Business Pur-
poses of Member.] — The respondent, a mem-
ber of the Royal College of Veterinary
Surgeons, used on his business notepaper the
armorial bearings of the college. The respon-
dent had not taken out a licence for the use
of armorial bearings, but the college had
taken out a licence : — Held, that the respon-
dent was not entitled to use the armorial bear-
ings of the college in the way he had without
taking out a licence, and that therefore he
was liable to the penalty imposed by section 27
of the Revenue Act, 1869. London County
Council V. Kirk, 81 L. J. K.B. 278; [1912]
1 K.B. 345 ; lOG L. T. 572 ; 10 L. G. R. 225 ;
76 J. P. 122; 22 Cox C.C. 733; 28 T. L. R.
182-D.
2. CARRIAGES AND CaRTS.
See also Vol. XII. 282, 1320.
Milk Van Used for other than Exempted
Purpose — User by Servant without Consent
or Knowledge of Owner — Liability of Owner.]
— The appellants were the owners and occu-
piers of, but did not reside on, a farm, which
was managed for them by a bailiff under the
superintendence of a steward who resided some
considerable distance away. Part of the
business of the farm was the conveyance of
milk to a railway station, and for this pur-
pose the appellants had at the farm a four-
wheel van which was usually driven to and
from the station by a milkman. The van had
the appellants' names painted on the side,
and it was constructed or adapted for use for
the conveyance of milk churns in the course
of the appellants' business as dairy farmers.
On one occasion, without the knowledge of
the appellants or of the steward, and for his
own purposes, the bailiff used the milk van,
after carrying milk to the station, for bring-
ing back his wife and others from a place of
entertainment. In respect of this user the
appellants were convicted of keeping and using
the milk van without having a licence there-
for : — Held, that the milk van was kept by
the appellants, that they were responsible for
its user by the bailiff on the day in question,
and that as such user was not for the con-
veyance of goods or burden in the course of
trade or husbandry within section 4, sub-
section 3 of the Customs and Inland Revenue
Act, 1888, the conviction was right. Strutt
V. Clift. 80 L. J. K.B. 114: [1911] 1 K.B. 1;
103 L. T. 722; 74 J. P. 471 ; 8 L. G. R. 989;
27 T. L. R. 14— D.
"Carriage" — Vehicle Constructed and Used
Solely for Conveyance of Goods of Burden
— Capable of Use for other Purposes —
"Burden."] — The appellant, a farmer and
rope maker, on the occasion in question used
a two-wheeled cart for the purpose of driving
his wife and son to market in order that they
might serve at two stalls he held there, at
which he sold ropes and farm produce. He
also used it at other times to convey ropes to
customers, and sheep and farm produce to
market. The Justices found that the cart had
been constructed to the appellant's order, and
had been used solely for the conveyance of
goods or burden in the course of trade or
husbandry within the meaning of the exempt-
ing words contained in section 4, sub-section 3
of the Customs and Inland Revenue Act, 1888,
and that the wife and son were " burden "
within the meaning of that sub-section ; but
that as it was capable of being used for pur-
poses other than the above, such as the con-
veyance of persons, or dogs or game for sport,
it was not exempt under the sub-section from
liability to excise duty as a " carriage " under
section 4, sub-section 1 : — Held, allowing the
appeal, that there was evidence upon which
the Justices could find that the wife and son
were " burden," and that, in the above cir-
cumstances, the fact that the cart was capable
of being used for such other purposes did
not render it liable to duty, the test being,
not its capacity for use for such other pur-
poses, but whether it was constructed and
used solely for the conveyance of goods or
burden in the course of trade or husbandry.
Cook V. Hobbs, 80 L. J. K.B. 110; [19li]
1335
KEVENUE.
1336
1 K.B. 14: 103 L. T. 566; 75 J. P. 14;
9 L. G. E. 143— D.
The respondent kept a vehicle of the deecrip-
tion known as a dogcart with four wheels. It
had seating accommodation for four persons,
and was fitted with rubber tyres and smart
lamps. It was used by him for the purpose
of his business — a shoe manufacturer's agent
— to carry his samples. The interior fittings
had been removed, steel plates had been put
on the bottom and on the springs to strengthen
the vehicle, and the two back seats removed
to take seven specially made cases to carry the
samples : — Held, that there was evidence on
which the magistrate could find that the
vehicle was adopted for use solely for the
conveyance of goods within section 4 of the
Customs and Inland Eevenue Act, 1888.
Collman v. Stokes, 103 L. T. 592; 74 J. P.
473; 9 L. G. R. 150— D.
Exemption of Vehicles Constructed and Used
for Trade or Husbandry — Adaptation.] — Sec-
tion 4, sub-section 3 of the Customs and
Inland Revenue Act, 1888, exempts from
carriage duty " a waggon, cart, or other such
vehicle, which is constructed or adapted for
use, and is used, solely for the conveyance of
any goods or burden in the course of trade or
husbandry." Upon proceedings against the
respondent for keeping a carriage without a
licence the Justices found as facts that an old
four-wheeled waggonette, built to contain six
persons and drawn by one horse, had been
altered by the respondent for use on his farm
in the following particulars. The interior
upholstery had been removed, the wheels had
been strengthened and widened and stronger
springs supplied. The respondent's name
was painted on the side in white letters. It
was used for the general work of the farm —
that is, to take workpeople to and from work,
potatoes to the railway station, bran to the
farm, chop and corn to the horses in winter
time, and to fetch potato sacks from the rail-
way station. It was never used as a private
carriage and never carried passengers other
than the respondent's workpeople. The
Justices dismissed the information : — Held,
that the waggonette had been adapted or re-
constructed wi*^h a view to its being used
only for the exempted purposes. It had been
made fit for the main and substantial purpose
for which it was used, and fell within the
exemption notwithstanding the possibility that
it might be capable of being used for other
purposes. But, per Rowlatt, J. (dissenting) :
Where the vehicle is still internally a waggon-
ette, though not upholstered and though its
wheels and springs are in a measure strength-
ened, it cannot, in the face of that fact, be
found that it is adapted solely for the purpose
of carrying goods in the course of trade or
husbandry. Minty v. Gleto, 110 L. T. 340;
78 J. P. 69; 12 L. G. R. 121; 24 Cox C.C.
73— D.
Keeping Carriage — Hackney Carriage in
Reserve.] — A person who keeps a hackney
carriage in reserve to be used to replace any
other hackney carriage which may break
down, but has not in fact used it, does not
" keep " a carriage within the meaning of
section 27 of the Customs and Inland Revenue
Act, 1869, until he does use it. London
Count]] Council v. Fairbank, 80 L. J. K.B.
1032; [1911] 2 K.B. 32; 105 L. T. 46;
75 J. P. 356 ; 9 L. G. R. 549— D.
3. Gold and Silver Plate.
See also Vol. XII. 287, 1324.
Liability to Assay — Imported Gold and
Silver Articles Inlaid with Enamel.] — An im-
ported article which is liable to assaying and
marking as a manufacture of gold or silver
under the Plate (Offences) Act, 1738, and
section 59 of the Customs Act, 1842, does not
cease to be so because it is used as the base
or foundation of enamel work, however great
be the artistic merit of such work compared
with the value of the metal. Even if enamel
be a " jewel " articles enamelled on gold or
silver are not within the exemption of gold
or silver wherein jewels are set contained in
section 2 of the Act of 1738; nor, in view of
the practice of the Goldsmiths' Company to
assay and mark articles in the rough, leaving
them to be enamelled or otherwise decorated
afterwards, are enamelled articles within the
exemption in section 6 of articles not admit-
ting of assaying or marking without damage.
Faberge v. Goldsmiths' Co., 80 L. J. Ch.
97; [1911] 1 Ch. 286; 103 L. T. 555—
Parker, J.
Gold Watches Set in China.] — Gold watches
set in gold chains and jewelled do not fall
within the exemption in either section. 7b.
4. Male Servants.
See also Vol. XII. 285, 1322.
"Male servant" — Driver of Motor Car —
Employment for Trade Purposes only.] — In
order to determine whether a person comes
within the definition of a " male servant " in
section 19, sub-section 3 of the Revenue Act,
1869, which imposes a duty on the employ-
ment of male servants, the true test is whether
such person is employed to perform services
of a menial, domestic, or personal nature. A
person employed in a capacity which does not
involve the performance of such services is
not a " male servant " within the meaning
of the sub-section. Whiteley, Lim. v. Bums
ill L. J. K.B. 467; [1908] 1 K.B. 705),
Marchant v. London County Council (79 L. J.
K.B. 718; [1910] 2 K.B. 379), London
County Council v. Allen (82 L. J. K.B. 432;
[1913] 1 K.B. 9), and Wolfenden v. Mason
(110 L. T. 31) discussed. London County
Council V. Perry, 84 L. J. K.B. 1518 ; [1915]
2 K.B. 193; 113 L. T. 85; 79 J. P. 312;
13 L. G. R. 74.5; 31 T. L. R. 281— D.
"Coachman" — Servant Employed by
County Council to Drive Children to School.]
— Tlie respondent, a carman and contractor,
supplied to the respondent County Council,
under contract for reward, drivers to drive
their vehicles, drawn by horses also supplied
by him, conveying children to and from their
schools : — Held, that the driver of such a
1337
KEVENUE.
1388
vehicle is not a "coachman" within the
meaning of section 19, sub-section 3 of the
Revenue Act, 1869, and consequently is not
a " male servant " in respect of whom a
licence must be taken out under section 18.
London County Council v. Allen, 82 L. J.
K.B. 432; [1913] 1 K.B. 9; 107 L. T. 853;
77 J. P. 48; 10 L. G. R. 1089; 23 Cox C.C.
266; 29 T. L. R. 30— D.
Cooks Employed in Club — Club Subsidised
by GoYcrnment.] — Male cooks were employed
in a club for Civil servants which was
managed by a committee of the members.
The expenses of the club were partially
defrayed by an annual grant by the Govern-
ment : — Held, that the cooks were not in the
service of the Crown, but were in the service
of the committee of the club, and that they
were " male servants " within section 10 of
the Revenue Act, 1869, for whom licences
had to be taken out. London County Council
V. Houndle, 105 L. T. 211; 75 J. P. 442;
9 L. G. R. 958; 27 T. L. R. 465— D.
Groom — Man Employed at Stud Farm and
to be Generally Useful — Employment in Trade
or Business.] — The respondent, a farmer and
breeder of horses, advertised for a " groom,
single, to live in, able to ride and drive and
make himself generally useful," and engaged a
man on those terms. tJpon proceedings against
him for employing a male servant without
licence. Justices, having heard the evidence
adduced before them as to the man's daily
occupations and employment, found as a fact
that the man was employed by the respondent
in the capacity of a groom and a general
servant, and that the major part of his duty
was attending to horses kept by the respon-
dent in connection with his business as a
farmer and horse breeder : — Held (Ridley, J.,
dissentiente), that the man was not a groom
within the meaning of section 19, sub-section 3
of the Revenue Act, 1869, and that the respon-
dent was therefore not liable to pay in respect
of him the duty imposed by section 18 of the
Act on " male servants " as defined by sec-
tion 19, sub-section 3. Wolfenden v. Mason,
110 L. T. 31; 78 J. P. 13; 11 L. G. R. 1243;
23 Cox C.C. 722— D.
Jobbing Gardener.] — The respondent em-
ployed A. as a jobbing gardener for four days
a week. A. was at liberty to work for another
employer in the same capacity on those days
that he was not employed by the respondent,
and he was entitled to send a qualified substi-
tute to do the respondent's work when he was
unable to attend himself. A. worked green-
houses of his own, and frequently supplied
the respondent with plants from them : — Held,
that A. was not a " male servant " within the
meaning of section 19, sub-section 3 of the
Revenue Act, 1869. Braddell v. Baker,
104 L. T. 673 : 9 L. G. R. 245 ; 75 J. P. 185 ;
27 T. L. R. 182— D.
Section 5 of the Inland Revenue Act, 1876,
which enacts that a servant employed in
certain capacities shall not be deemed to he
otherwise employed because he is occasionally
or partially employed to do something else,
only applies to a person who is not taxable,
but who happens to do duties which, if they
were his ordinary duties, would render him
taxable. Bedford (Duke) v. Loyidon County
Council, 104 L. T. 889; 75 J. P. 317;
9 L. G. R. 617 ; 55 S. J. 423— D.
5. Tobacco.
Excess of Moisture — One Ounce Sample —
" Any tobacco."] — By section 4 of the
Customs and Inland Revenue Act, 1887, as
amended by section 3, sub-section 2 of the
Finance Act, 1904, if any manufacturer of
tobacco shall have in his possession any
tobacco which on being dried at a temperature
of 212 degrees Fahr. shall be decreased in
weight by more than 32 per cent., he shall
incur an excise penalty. The respondents,
manufacturers of tobacco, were charged under
section 4. From a tub in their possession con-
taining about 120 lb. of tobacco a Customs officer
took samples weighing in all about one ounce,
which on being subjected to the above test
decreased in weight more than 32 per cent.
The magistrate found that the samples taken
did not fairly represent the condition of the
bulk, the tub, and that neither the tobacco
in the tub nor any substantial portion of it
contained more moisture than was lawful, and
dismissed the information : — Held, that the
respondents ought to have been convicted, as
section 4 does not deal only with the bulk from
which samples are taken, but that the words
" any tobacco " mean any substantial por-
tion having regard to the ordinary sale of
tobacco. Hale v. Morris A Sons, Lim.,
83 L. J. K.B. 162; [1914] 1 K.B. 313;
109 L. T. 875 ; 78 J. P. 17 ; 23 Cox C.C. 666 ;
30 T. L. R. 9— D.
n. PENALTIES.
See also Vol. XIL 292, 1327.
Fine — Claim by Corporation under Charters
— Subsequent Legislation.] — By section 33.
sub-section 1 of the Inland Pievenue Regulation
Act, 1890, " All fines, penalties, and for-
feitures incurred under any Act relating to
inland revenue which are not otherwise legally
appropriated, shall be applied to the use of
Her Majesty " : — Held, that the defendant
corporation were precluded, by reason of the
terms of this enactment, from claiming
Revenue fines to which they might otherwise
have been entitled under their charters.
Alt. -Gen. v. Exeter Corporation, 80 L. J.
K.B. 636; [1911] 1 K.B. 1092; 104 L. T. 212;
75 J. P. 280 ; 27 T. L. R. 249; 5 Tax Cas. 629
— Hamilton, J.
For Selling Intoxicating Liquor without
Licence.] — Sec ante, cols. 771-773.
C. STAMPS.
I. AGREEMENTS.
See also Vol. XIL 306, 1329.
Sale of Old Company to New Company —
Consideration in Shares of Old Company
Partly or Wholly Paid up — Date of Assess-
1339
REVENUE.
1340
ment of Value.] — When a company purchases
the undertaking of another company in con-
sideration of partly and wholly paid-up shares
of the former, the stamp duty on transfer
must be assessed on the value of the shares
not at the date of the provisional agreement,
before the new company had come into exist-
ence, but at the date of the adoption of that
agreement, and evidence is admissible to shew
that the real value was not identical with the
face value or the value attributed to the share
consideration by the purchasing company.
Commissioner of Stamp Duties v. Broken Hill
South Extended, Lim., 80 L. J. P.C. 130;
[1911] A.C. 439; 104 L. T. 755; 18 Manson,
357— P.C.
Agreement for Sale — Sub-sales of Portions
of Property — Conveyances Direct to Sub-
Purchasers — Remaining Portion Conveyed to
Purchaser.] — By an agreement for sale the
vendor agreed to sell certain property to the
appellant for a sum of 45,000/., the appellant
assuming liability for certain charges amount-
ing to 997/. 5s. 9d. The appellant, not having
obtained a conveyance, contracted by several
agreements of sub-sale to sell certain portions
of the property to sub-purchasers, and the
vendor conveyed the portions of the property,
the subject of such agreements, to the respec-
tive sub-purchasers. Each conveyance to a
sub-purchaser was stamped with ad valorem
conveyance duty on the purchase money paid
under each of the conveyances. The total
consideration stated in the conveyances to sub-
purchasers amounted to more than 45 .000/.
The remaining portion of the property sold was
conveyed by the vendor to the appellant. The
conveyance recited that the whole of the
purchase money of 45,000/. had already been
paid to the vendor by or under the direction
of the appellant upon the execution of con-
veyances to sub-purchasers, and the appellant
covenanted to pay certain charges amounting
to 997/. 5.S. 9d. : — Held, that the conveyance
was liable to stamp duty on so much of the
original purchase money, 45,997/. 55. 9c/., of
the propertV sold as. having regard to the
relative values of the property sub-sold and not
sub-sold, was apportionable to that portion of
the property conveyed by the conveyance.
Maples V. Inland Revenue Commissioners,
83 L. J. K.B. 1647: [1914] 3 K.B. 303;
111 L. T. 764— Scrutton, J.
n. BOND, COVENANT, OE
INSTEUMENT.
See also Vol. XII. 330. 1.331.
Security for Contingent Payment — Payment
Half-yearly— Amount of Duty.1— The appel-
lants agreed by deed that, provided a sufficient
number of stockholders in a railway company
would consent to take guaranteed stock in
exchange for their ordinary stock (the number
so consenting being at the time unknown),
they would pay 4 per cent, interest on such
guaranteed stock, payable half-yearly, if the
profits of the railway company were insufficient
to pay that amount of interest. If all the
stockholders so consented and the railway com-
pany made no profits at all, the amount payable
under the above deed would be 120,000L per
annum. The respondents charged the above
deed under the heading in the First Schedule
to the Stamp Act, 1891, " Bond, Covenant, or
Instrument of any kind whatsoever. (1) Being
the only or principal or primary security for
any annuity ... or for any sum or sums of
money at stated periods, . . . For . . . any
. . . indefinite period," with ad valorem
stamp duty on 120,000/. -.—Held, that they
were entitled to charge on this sum, although
its payment depended on a contingency, and
it was payable half-yearly, and not yearly.
Underground Electric Railways v. Inland
Revenue Commissioners, 84 L. J. K.B. 115;
[1914] 3 K.B. 210; 111 L. T. 759— Scrutton,
J.
III. CAPITAL OF COMPANY.
See also Vol. XII. 1333.
Increase of Nominal Share Capital.] — By
the Caledonian Railway Co.'s private Act,
1890, a holder of the ordinary stock of that
railway could require the company to convert
the whole or any part of such stock into pre-
ferred converted ordinary stock and deferred
converted ordinary stock, and to issue to him
an amount of preferred and deferred converted
ordinary stock each equal to the amount of
ordinary stock so converted. By the Caledonian
Eailway Act, 1898, the Act of 1890 was made
to apply to all the ordinary stock of the com-
pany issued under any past or future Act of
Parliament. By the Caledonian Eailway Act,
1899, the company was authorised to raise
906,000/. additional capital by the issue at
their option of new ordinary shares or stock,
or new preference shares or stock. The rail-
way company delivered the statement required
by section 113 of the Stamp Act, 1891, as to
906,000/., but the Crown claimed that as this
could, under the provisions of the company's
private Acts, be converted into stock or
shares of the nominal value of 1,812,000/.,
the latter was the amount of nominal capital
authorised, and that consequently stamp duty
was payable on that amount : — Held, that
1,812,000/. was the increased amount of the
nominal share capital authorised within the
meaning of section 113 of the Stamp Act,
1891, and that stamp duty was payable on
that basis. Att.-Gen. v. Caledonian Railway,
105 L. T. 184; 27 T. L. E. 559— C.A.
IV. CONVEYANCE OE TEANSFEE.
See also Vol. XII. 335, 1.3.36.
Sale of Foreign Business — Assignment of
Book Debts — Debtors Resident Abroad —
" Property locally situate out of the United
Kingdom."] — An English limited company
entered into an agreement in England for the
purchase of a business carried on at Biienos
Aires, together with its assets, which included
book debts owing to the vendor of the business
by persons resident in the Argentine : — Held,
that a personal right to a debt had no local
situation, and therefore that these book debts
did not come within the exemption from ad
valorem conveyance duty in section 59, sub-
1341
REVENUE.
1342
section 1 of the Stamp Act, 1891, in favour of
" property locally situate out of the United
Kingdom. " Danuhian Sugar Factories, Lim.
V. Inland Revenue Coynmissioners (70 L. J.
K.B. 211; [1901] 1 K.B. 245) followed.
Velazquez, Lim. v. Inland Revenue Commis-
sioners, 83 L. J. K.B. 1108; [1914] 3 K.B.
458; 111 L. T. 417; 58 S. J. 554; 30 T. L. R.
539— C. A.
Sub-sales of Portions of Property — Con-
veyances Direct to Sub-purchasers — Remaining
Portion Conveyed to Purchaser.] — By an
agreement for sale the vendor agreed to sell
certain property to the appellant for a sum
of 45,000/., the appellant assuming liability for
certain charges amounting to 997L 5s. 9d.
The appellant, not having obtained a con-
veyance, contracted by several agreements of
sub-sale to sell certain portions of the property
to sub-purchasers, and the vendor conveyed
the portions of the property, the subject of such
agreements, to the respective sub-purchasers.
Each conveyance to a sub-purchaser was
stamped with ad valorem conveyance duty
on the purchase money paid under each of
the conveyances. The total consideration
stated in the conveyances to sub-purchasers
amounted to more than 45,000Z. The re-
maining portion of the property sold was
conveyed by the vendor to the appellant. The
conveyance recited that the whole of the
purchase money of 45,000Z. had already been
paid to the vendor by or under the direction
of the appellant upon the execution of con-
veyances to sub-purchasers, and the appellant
covenanted to pay certain charges amounting
to 997/. 5s. 9d. : — Held, that the conveyance
was liable to stamp duty on so much of the
original purchase money, 45,997/. 5s. 9d., of
the property sold as, having regard to the
relative values of the property sub-sold and
not sub-sold, was apportionable to that portion
of the property conveyed by the conveyance.
Maples V. Inland Revenue Commissioners,
83 L. J. K.B. 1647; [1914] 3 K.B. 303;
111 L. T. 764— Scrutton, J.
Patent Rights in Foreign Countries — "Pro-
perty locally situate out of the United
Kingdom."] — Patent rights in foreign
countries and the colonies are not " property
locally situate out of the United Kingdom "
within the exception in section 59, sub-section 1
of the Stamp Act, 1891, and therefore a
memorandum agreement of sale of such rights
made in this country is liable to an ad valorem
conveyance duty. Smelting Co. of Australia v.
Inland Revenue Commissioners (66 L. J. Q.B.
137 : [18971 1 Q.B. 175) has not been overruled
by Inland Revenue Commissioners v. Muller d
Co.'s Margarine, Lim. (70 L. J. K.B. 677;
[1901] A.C. 217). Urban v. Inland Revetiue
Commissioners, 29 T. L. R. 141— Horridge, J.
Affirmed, 29 T. L. R. 476— C. A.
Consideration Less than Full Value — Sub-
sequent Purchaser.] — When propcnty has
been convoyed for a consideration less than its
full value, the fact that stamp duty has only
been paid in respect of the consideration
mentioned in the conveyance, and not (as
required by section 74 of the Finance Act,
1910) in respect of the value of the property,
will not affect a subsequent purchaser for
value. Weir and Pitt's Contract, In re,
55 S. J. 536 — Warrington, J.
V. DEBENTURE. See VIII. Marketable
Secdeity (infra).
\t:. deed.
See also Vol. XII. 344. 1-344.
Minute of Acceptance of OflSce by Trustees.]
— A minute of acceptance of office by trustees
was engrossed upon a trust disposition and
settlement and signed by the trustees before
two witnesses : — Held, that this was not a
" deed " within the meaning of Schedule I. to
the Stamp Act, 1891, and was not chargeable
with a stamp duty of 10s. or with any
stamp duty. Henderson s Trustees v. Inland
Revenue Commissioners, [1913] S. C. 987 — ■
Ct. of Sess.
VII. LEASE.
See also Vol. XII. 348, 1345.
Demise to Lessee for Ninety-nine Years if
A, B, and C, or any of them, shall so long
live — Definite or Indefinite Term.] — A lease
for ninety-nine years if A, B, and C, or any
one of them, shall so long happen to live, is
not, for the purposes of the Stamp Act, 1891,
a lease for an indefinite term. Such a lease
requires to be stamped as a lease for
the definite term of ninety-nine years. Mount-
Edgcumbe (Earl) v. Inland Revenue Com-
missioners, 80 L. J. K.B. 503; [1911] 2 K.B.
24; 105 L. T. 62; 27 T. L. R. 298— Hamilton,
J.
Vm. MARKETABLE SECURITY.
See also Vol. XII. 357, 1345.
Debenture — Mortgage of Steamships to
Trustees for Debenture-holders — Also Usual
Debenture Trust Deed — Issue of Debenture
Charging the Steamships — Exemption from
Duty — " Instruments for the . . . disposition
... of any . . . interest ... in any ship."]
— A company gave legal mortgages, duly
registered, of three steamships to trustees for
debenture-holders as a security for sums to
be borrowed on the issue of debentures. The
trustees also executed a debenture trust deed
in the usual form. Debentures were then
issued, in each of which the company
covenanted to pay the registered holder
thereof the amount for which it was issued,
and did " hereby charge " with the payment
of such sum the three steamships : — Held,
that the substance of the transaction was the
creation of negotiable securities, and that a
debenture, one of the above-mentioned issue,
although incidentally it gave the holder the
benefit of the registered charge under the trust
deed, was not an instrument for the sale,
transfer, or other disposition of any interest
in any ship within the second of the " General
Exemptions from all Stamp Duties " in the
First Schedule to the Stamp Act, 1891, but
was liable to duty under the head of " Market-
1343
EE VENUE.
1344
able Security " in the same schedule. Qucere,
whether the second exemption has any applica-
tion to an " equitable interest." Deddington
Steamship Co. v. Inland Reveyiue Commis-
sioners, 81 L. J. K.B. 75; [1911] 2 K.B. 1001;
105 L. T. 482; 18 Manson, 373— C. A.
IX. SETTLEMENT.
See also Vol. XII. 370, 1355.
Policies of Life Insurance — Re-settlement —
Pre-existing Deed of Covenant to Pay
Premiums — Provision for Keeping up Policies
— Assessment on Full Amount.] — In the year
1892 three persons — a father, son, and grand-
son— executed a settlement of certain freehold
estates under which, subject to a joint over-
riding power of appointment given to them,
they took successive life interests. By a deed
of even date with the settlement certain
policies effected by the grandson on his own
life were assigned by him to trustees to be
held upon the trusts of the settlement, and the
son covenanted with the trustees that he
would, during his life, if he survived his
father, pay the premiums on the policies, and
also that his executors or administrators would
pay the same so long as his father should
live, if he should die in the lifetime of his
father. In 1894 a further re-settlement was
made by the same parties, and an instrument
was executed which contained no new pro-
visions for keeping up the policies, but the
son's covenants in the deed of 1892 remained
applicable to them : — Held, that the deed of
covenant of 1892 was a deed under which the
policies were fortified by the son's covenants,
which were operative from the date of such
deed until the death of the grandson ; that
the instrument of 1894 was a " settlement "
of the policy moneys within section 104, sub-
section 1 of the Stamp Act, 1891, and there-
fore chargeable with ad valorem duty; that,
although there was no provision in that
settlement for keeping up the policies, the
provision in the deed of covenant of 1892 was
a provision made for keeping up the policies
within the meaning of sub-section 2 (a) of
section 104, and that consequently the instru-
ment of 1894 did not come within the proviso
in that sub-section, and thi; ad valorem duty
was assessable on the full amount of the
policies and not merely on their value at the
date of the instrument. 'Northumberland
(Duke) v. hUand Revenue Commissioners,
81 L. J. K.B. 240; [1911] 2 K.B. 1011;
105 L. T. 485— C. A.
Decision of Hamilton. J., on the last point
(80 L. J. K.B. 866; [1911] 2 K.B. 343) re-
versed, lb.
X. OFFENCES.
Selling Forged Stamps — Obliterated
Stamps.l — By section 13 of the Stamp Duties
Management Act, 1891, " Every person who
does, or causes or procures to be done . . .
any of the acts following ; that is to say . . .
(8) Knowingly sells or exposes for sale or
utters or uses any forged stamp, or any stamp
which has been fraudulently printed or im-
pressed from a genuine die . . . shall be
guilty of felony ..." : — Held, that the word
" stamp " in the above section is used in its
ordinary meaning, and includes a stamp which,
at the time of the sale, has been obliterated.
Rex V. Lowden, 83 L. J. K.B. 114; [1914]
1 K.B. 144; 109 L. T. 832; 78 J. P. Ill;
23 Cox C.C. 643; 58 S J. 157; 30 T. L. R. 70
—CCA.
XI. UNSTAMPED DOCUMENTS.
Admissibility as Evidence.] — 5ee Evidence.
D. COMMISSIONERS.
I. PROCEEDINGS BEFORE.
See also Vol. XII. 374, 1359.
Bight of Surveyors of Taxes to be Present. )
— Rule for certiorari to quash an order made
by Commissioners of Income Tax, and rule for
a mandamus to them to hear and determine an
appeal according to law, made absolute, the
Attorney-General admitting that the Surveyor
of Taxes, who had claimed, and been con-
ceded, the right by the Commissioners to be
present with them while they were considering
their decision, had no such right under sec-
tion 57, sub-section 7 of the Taxes Manage-
ment Act, 1880. Rex v. Brixton Income Tax
Commissioners, 6 Tax Cas. 195; 29 T. L. E.
712— D.
Mandamus to Commissioners to Hear Evi-
dence.]— See Rex v. Offlow Income Tax
Commissioners, ante, col. 947.
II. COLLECTORS OF TAXES.
See also Vol. XII. 372, 1358.
Security — Demand of Increase — Power of
Board of Inland Revenue.] — Section 74 of the
Taxes Management Act, 1880, which provides
that the Board of Inland Revenue may call
for security from a collector of taxes whenever
it thinks fit, entitles the Board at any time
during a collector's term of office to demand
increased security if the Board thinks it desir-
able to do so. Maxwell v. Nathan, 31 T. L. R.
288— Bailhache, J.
Distress for Non-payment of Inhabited-house
Duty — Goods of Third Person — Exemption —
Implement of Trade.] — The appellant's hus-
band had not paid income tax under Schedule A
of the Income Tax Act, 1842, nor inhabited-
house duty after demand by the collector. The
latter, purporting to act under section 86 of
the Taxes Management Act, 1880, levied a
distress on the husband's premises, and seized
a piano therein belonging to the appellant, a
teacher of music who used the piano in her
business : — Held, that, even assuming the
piano to be an implement of trade, it was not
exempt from distress under section 4 of the
Law of Distress Amendment Act, 1888, which
applies to distress for rent only, and does not
affect the rights of the Crown, which is not
mentioned therein ; that there is no common
law exemption of such implements from dis-
tress for these taxes, and that under section 86
of the Act of 1880 the goods of third persons
on the taxpayer's premises are liable to dis-
tress for these taxes, because they are charged
1345
REVENUE— SALE OF GOODS.
1346
on the land. Jtt.son v. Dixon (1 M. & S. 601)
applied. MacGregor v. Clamp, 83 L. J. K.B.
240; [1914] 1 K.B. 288; 109 L. T. 954;
78 J. P. 125: 58 S. J. 1.39; 30 T. L. R. 128
— D.
REVISING BARRISTER.
See ELECTION LAW.
REVOCATION.
Of Appointment.] — See Powers.
Of Will.]— See Will.
RIOT.
Damage by Riot — County Authority Liable
to Pay Compensation.! — Where damage
caused by riot occurs within a police district,
being part of a county maintaining a separate
police force, the authority liable to pay com-
pensation in respect of such damage under the
Riot (Damages) Act, 1886, ss. 3 (1) and 4 (1),
is the county council, by virtue of the Local
Government Act, 1888, s"s. 3 (i), (xiv.), and 9,
sub-s. 1. Glamorgan Coal Co. v. Glamorgan
Quarter Sessions and County Council Joint
Comrynttee, 84 L. J. K.B. 3G2 ; [1915] 1 K.B.
384; 112 L. T. 219; 79 J. P. 164; 13 L. G. R.
462— Bankes, J.
Payment for Extra Police.^ — See Police.
SAILOR AND SEAMAN.
RIPARIAN OWNER.
See SEASHORE.
RIVER.
See WATER.
RIVERS POLLUTION.
See WATER.
See SHIPPING.
SALE.
By Auction.] — See Auction and Auctioneer.
Bill of.] — See Bills of S.\le.
Of Food.] — See Local Government ;
Metropolis.
Of Goods.]— See infra.
Of Land.l — See Vendor and Purchaser.
SALE OF GOODS.
A. The Contract.
1. Construction. 1346.
2. The Consideration.
a. Price, 1348.
b. Payment, 1349.
B. Statute of Frauds, 1351.
C. When Property Passes, 1352.
D. Warranties, 1355.
E. Performance of Contract.
1. Time of Delivery, 1358.
2. Quantity of Goods, 1361.
3. Other Points as to Delivery, 1361.
F. Discharge and Breach of Contract.
1. Impossibility of Performance, 1364.
2. Illegality, 1367'.
3. Fraud. 1368.
4. Refusal to Perform, 1368.
Rights of Unpaid Vendor.
1. Lien, 1369.
2. Stoppage i}i Transitu, 1370.
A. THE CONTRACT.
1. Construction.
See also Vol. XII. .384. 1364.
Goods on Approval — Right of Rejection.] —
The defendants asked the plaintiffs to supply
on approval a machine for making brushes,
and agreed to pay carriage both ways if they
rejected the machine within twenty-one days,
and to pay for the machine, together with
carriage one way, if they retained it. The
plaintiffs on June 8 dispatched the machine
on these terms, and the defendants on
June 29 wrote rejecting the machine on the
ground that though it was satisfactory they
anticipated trouble with their hands in working
it. In an action for the purchase price, —
43
G
1347
SALE OF GOODS.
1348
Held, that the contract meant that the defen-
dants had a right of rejection for reasons other
than defects in the machine, and the plaintiffs
were not entitled to recover. Berry <f- Co. v.
Star Brush Co., 31 T. L. R. 157— D.
Sale of Coal — Delivery by Ship — "Cost of
stevedoring to be paid by " Consignees — Con-
signees to Discharge Ship, Steamer Contribut-
ing to Cost of Same." — In a contract under
wliicli coals to be delivered by ship were sold
to the Government of New South Wales the
words " Cost of stevedoring to be jjaid by the
Government " mean " so far as such cost is
not provided bj^ the ship in the way of tackle
or steam or in money.'" In a contract of sale
to the Government of New South Wales of coal
to be delivered by ship the Government
guaranteed to discharge the several vessels at
not less than 500 tons per day, strike or no
strike, " the cost of stevedoring to be paid by
the Government and vessels to have free
wharfage "; and it was also provided by the
charterparty under which the coals were
carried, but which created no privity as
between the consignor and the Government,
" Consignees to effect discharge of steamer
irrespective of strike or labour trouble, steamer
paying Is. per ton towards cost of same " : —
Held, that, upon the construction of the con-
tract of sale, the Government were entitled to
retain the shilling per ton as against the con-
signor. White V. WiUia)yis, 82 L. J. P.O. 11;
[1912] A.C. 814: 107 L. T. 99: 12 Asp. M.C.
208; 17 Com. Cas. 309: 28 T. L. R. 521— P.C.
Contract for Supply of Sleepers — Passing
by Sellers to be Final — Conformity with Terms
of Contract.^ — The appellants having com-
mitted a breach of contract made by their
agents with the respondent in regard to
delivery to a railway of teakwood sleepers
reasonably fit for its purposes, relied in
defence to an action for damages on a provi-
sion contained therein that the passing by the
appellants at the port of shipment " is as
usual final as regards both measurement and
quality," and pleaded that the sleepers in
question had been so passed in the impartial
and honest exercise of their judgment by two
experts employed by them for that purpose :
— Held, that the passing relied on was not
within the meaning of the contract. There
had been no decision by the experts that the
sleepers were in conformity with the contract,
but merely that they were fit to be sent out
as their emploj'crs' manufacture. Bombay
Burmah Tradiuq Corporation v. Aga Mahoiited
Khaleel Shirazec, L. R. 38 Ind. App. 169
—P.C.
Sale of Floating Dock — Price Inclusive of
Towage, Insurance, &c. — Sellers' Obligation
as to Policies." — A floating dock was sold to
the plaintiffs for 19,000/., " which price in-
cludes cost of towing from Avonmouth to
Brindisi, cost of insurance, and all fittings,
strengthenings and towing gear, ropes, &c.,
necessary for the voyage. . . . Before the dock
leaves, vendors agree to hand to purchasers
Lloyd's policies of insurance for 16,500/. This
insurance will be duly indorsed over to them,
and they shall receive the full benefit of such
policies " : — Held, that under this contract the
sellers were bound to give valid policies to the
purchasers. Cantiere Meccanico Brindisino v.
Constant, 17 Com. Cas. 182: 12 Asp. M.C.
186— Scrutton, J. Affirmed, 17 Com. Cas.
332— C. A.
Marine Insurance against "all risks" —
Extent of Required.] — By a contract in writ-
ing the defendants sold certain goods to the
plaintiffs, and as the plaintiffs stipulated for
" complete insurance against all risks " the
defendants inserted in the margin of the con-
tract the following words : "" Insurance to be
effected by us all risks." The defendants
took out a policy covering the goods from
Piraeus to Antwerp for " 850/. on 102 casks
citrons (in brine). So valued. To pay
average as customary." The policy contained
an f.p.a. clause and the usual memorandum.
There were clauses attached to the policy,
including one which covered " all risks by
land or water (if by sea, at current addi-
tional premium) " and a " held covered
clause," which provided (inter alia) that in
the case of circumstances which might cause
a variation and for) entire alteration in the
risk as contemplated in the policy, a pay-
ment in respect thereof should be made by
the assured. The citrons on their arrival at
Antwerp were found to be considerably
damaged, owing to their having been stowed
on deck instead of under deck. In an action
by the plaintiffs against the defendants for
failing to insure the goods against all risks,
— Held, on the true construction of the con-
tract, that the defendants were only bound
to cover all risks in the sense of the entire
quantum of damage, and not to procure a
policy covering the plaintiffs against all
causes of accident. Vincentelli v. Rowlett.
105 L. T. 411: 16 Com. Cas. .310; 12 Asp.
M.C. 34— Hamilton. J.
2. The Consideeatiox.
a. Price.
See also Vol. XII. 396. 13G4.
Hire-purchase Agreement — Instalments —
Appropriation of Instalments as between
Capital and Interest.^ — An agreement for the
hire-purchase of certain furniture had indorsed
on it an inventory of the furniture hired, with
cash prices annexed, the summation of which
amounted to 7,543/. The agreement stipulated
for payment by the hirer of annual sums of
varying amount, the total of which was 8,649/.,
and further provided that the hirer might at
any time become the purchaser of the furni-
ture " by payment in ca.sh of the hereon
indorsed price, under deduction of the whole
sums previously paid by the hirer to the
owners." The hirer, who had in the course
of several years paid in terms of the agree-
ment sums amounting in all to 4,966/., desir-
ing to become the purchaser of the furniture,
tendered to the owners the sum of 2,577/.,
being the difference between the sums so paid
and 7,543/., the " indorsed price " : — Held.
that in view of the fact that in a contract of
hire-purchase the instalments are calculated so
as to provide for interest on so much of the
1349
SALE OF GOODS.
1350
capital as remains unpaid, the expression
" whole sums previously paid " must refer to
the portion of the sums paid attributable to
capital, to the exclusion of the portion attribut-
able to interest; and, accordingly, that the
pursuer was not entitled to become the pur-
chaser of the furniture on payment of the sum
tendered. Taylor v. IVylie d Lochhead,
[1912] S. C. 978— Ct. of Sess.
b. Payment.
See aho Vol. XII. 398, 13fi5.
C.i.f. Contract — Terms "Net cash" —
Buyer's Right of Inspection before Payment —
Payment against Shipping Documents.] — A
contract in writing provided for the sale of
goods during successive years to be shipped to
a port stated. The buyer was to pay for the
goods at a given price and the goods were
to be shipped to ports mentioned, " Terms net
cash " : — Held, that the seller was entitled
to payment against shipping documents on
delivery of the goods, or within a reasonable
time, and need not wait until the goods had
been landed, inspected, and accepted.
Clemens Horst Co. v. Biddell, 81 L. J. K.B.
42; [1912] A.C. 18; 10.5 L. T. 563; 17 Com.
Cas. 55; 12 Asp. M.C. 80; 56 S. J. 50;
28 T. L. R. 42— H.L. (E.)
Payment by Cash against Documents —
Seller not the Shipper of Goods — Tender of
Documents after Loss of Goods — Validity of
Tender — Appropriation of Goods to Contract
— "War risk for buyer's account."] — When
goods are sold by contract on c.i.f. terms, the
contract of the seller is performed by delivery
to the buyer, within a reasonable time from
the agreed date of shipment, of documents,
ordinarily the bill of lading, invoice, and
policy of insurance, which will entitle the
buyer on the arrival of the ship to obtain
the delivery of the goods shipped in accord-
ance with the contract, or, in case of loss,
will entitle him to recover on the policy the
value of the goods if lost by a peril agreed in
the contract to be covered, and in any case
will give him a rightful claim against the
ship in respect of any misdelivery or wrongful
treatment of the goods. It is therefore imma-
terial whether, before the tender of the
documents, the property in the goods is in the
seller or buyer or a third person. The seller,
however, must be in a position to pass the
property in the goods by the bill of lading,
if the goods are in existence, but he need not
liave appropriated the particular goods in the
particular bill of lading to the particular buyer
until the moment of tender. Groo)>t, Lim. v.
Barber. 84 L. J. K.B. 318; [1915] 1 K.B.
316; 112 L. T. 301; 20 Com. Cas. 71; 12 Asp.
M.C. 594; 59 S. J. 129; 31 T. L. R. 66—
A.tk-in, J.
— ;- Declaration of War — Tender of German
Shipping Documents — Obligation of Buyer.] —
Under two c.i.f. contracts (made respectively
between two English firms) the sellers sold to
the buyers a quantity of horse beans, to be
shipped from a port in China to Naples. Pay-
ment was to be in net cash in London on
arrival of the goods at port of discharge in
exchange for bill of lading and policy of
insurance, but was to be made in no case
later than three months from the date of the
bill of lading ; or upon the posting of the
vessel at Lloyd's as a total loss. The sellers
respectively shipped the beans on a German
steamer for conveyance to Naples. War sub-
sequently broke out between England and
Germany, and the vessels entered ports of
refuge and remained there. Three months
after the date of the bill of lading the respec-
tive sellers tendered to the buyers the shipping
documents — namely, in the one case the
German bill of lading and an English policy,
and in the other case the German bill of
lading and a German policy. The buyers
refused to accept the documents or to pay for
the goods : — Held, that the tender of the docu-
ments was not, under the circumstances, a
good tender ; that the buyers were entitled to
reject it, and that the sellers could not there-
fore claim payment against the documents.
Esposito V. Bowden (27 L. J. Q.B. 17 ; 7 E.
& B. 763) and Janson v. Driefontein Consoli-
dated Mities (71 L. J. K.B. 857; [1902]
A.C. 484) considered. Karberg d- Co. v.
Blythe, Green, Jourdain d Co.; Schneider d
Co. V. Burgett d Newsam, 84 L. J. K.B.
1673; [1915] 2 K.B. 379; 113 L. T. 185;
21 Com. Cas. 1 ; 31 T. L. R. 351— Scrutton, J.
Amount of Marine Insurance to be
Effected Specified — Additional Honour Policies
Effected by Sellers for Own Benefit — Payment
by Underwriters — Right of Sellers or Buyers to
Insurance Money.] — A contract for the sale
of a cargo of Australian wheat, '" including
freight and insurance," contained a clause,
" Sellers to give policies of insurance for
2 per cent, over the invoice amount, and any
amount over this to be sellers' account in
case of total loss only." The bills of lading
passed from the original sellers, the plaintiffs,
through the hands of various intermediate
buyers and sellers to the ultimate purchasers,
the defendants. Insurance policies on the
cargo had been duly taken out by the plaintiffs,
and passed, as part of the shipping documents
attached to the bills of lading, to the defen-
dants, and on the vessel being wrecked (but
not becoming a total loss) payment thereunder
was duly made by the underwriters. In addi-
tion to these policies the plaintiffs had effected
" increased value " policies on the cargo,
which were only honour policies, intending
them to be for their own benefit only, and
these were not handed over with the shipping
documents : — Held (even assuming privity of
contract between the plaintiffs and defen-
dants), that the latter policies were not in-
cluded under tiie obligation to insure annexed
to the contract, and that the plaintiffs and
not the defendants were entitled to the pro-
ceeds thereof. Strass v. SpiUers d Baker.<!.
Lim., 80 L. .1. K.B. 1218 ; [1911] 2 K.B. 759 :
104 L. T. 284; 16 Com. Cas. 166; 11 Asp.
M.C. 590— Hamilton, .T.
Right of Buyer to Reject— Bill of Lading
- Transhipment of Goods — Through Bill of
Lading— Tender of One Bill of Lading.]— Bv
a contract dated Mav 5, 1909, L. & Co. sold
1351
SALE OF GOODS.
1352
to C. & S. a quantity of hemp on cost, freight,
and insurance terms. Shipment was to be
made from a recognised shipping port in the
Philippine Islands by steamer or steamers,
direct or indirect, to London between
October 1 and December 31, 1909. Payment
was to be made by cash in exchange for ship-
ping documents. The original seller shipped
the hemp at Manila to Hong-Kong on
December 28 under a bill of lading to ship-
per's order at Hong-Kong, and sent a copy
to the buyers in London attached to the
seller's draft. He intended to tranship the
goods at Hong-Kong and to make a contract
there for their conveyance to London, but was
unable to make such a contract till March 25,
1910, when the goods were shipped from Hong-
Kong under a fresh bill of lading. The sellers
subsequently tendered to the buyers as ship-
ping documents tlie Hong-Kong bill of lading,
and a policy of insurance covering the goods
from Manila to London, the Manila bill of
lading not being then in London. The buyers
having rejected the goods on the ground that
there had not been a good tender under the
contract, the matter was referred to arbitra-
tion, and the umpire found that by mercantile
usage it is the duty of the seller to provide
by a contract of affreightment for the carriage
of the goods from the port of shipment to the
port of destination named in the contract, and
held that the buyers were not bound to accept
the goods : — Held, that the decision of the
umpire was correct, whether it proceeded upon
the ground that no contract for the carriage
of the goods to London was made within the
stipulated period, or upon the ground that the
shipping documents tendered to the buyers,
which did not include the Manila bill of lading,
were not a good tender within the meaning
of the contract. Landauer v. Craven, 81Ij. J.
K.B. 650; [1912] 2 K.B. 94; 106 L. T. 298;
12 Asp. M.C. 182: 17 Com. Cas. 193: 56 S. J.
274— Scrutton, J.
B. STATUTE OF FRAUDS.
See also Vol. XII. 407, 1366.
Contract not in Writing Signed by the Party
to be Charged — Contract not to be Performed
within Space of One Year — Acceptance and
Actual Receipt of Part of Goods by Purchaser.]
— A contract for the sale of goods which is not
in writing signed by the party to be charged
therewith, and which is not to be performed
within the space of one year from the making
thereof, is unenforceable under section 4 of
the Statute of Frauds, notwithstanding that
it comes within section 4 of the Sale of Goods
Act, 1893, by reason of the acceptance and
actual receipt by the buyer of part of the
goods so sold. Prested Miners Gas Indicating
Electric Lamp v. Garner, 80 L. J. K.B. 819;
[1911] 1 K.B. 425 ; 103 L. T. 750 ; 27 T. L. R.
139— C.A.
Sale of Goods Exceeding 10/. in Value —
Rick of Hay on Vendor's Land — Oral Agree-
ment to Purchase — Constructive Delivery and
Receipt.] — The plaintiff verbally agreed to
purchase from the defendant a rick of hay
standing upon the defendant's land for 1001.
By the terms of the contract the plaintiff was
to be at liberty to send his men to tie and
press the hay, and the defendant was to cart
it to the nearest railway station. On the
following day the defendant telegraphed to
the plaintiff, " Don't send press; am writing,"
and followed this by a letter, in which he said
that he had sold the hay to some one else, and
asked the plaintiff "to be kind enough to give
up possession." In an action by the plaintiff
for damages for breach of contract, — Held,
that the contract was one to which the prin-
ciple of constructive delivery and receipt under
section 4 of the Sale of Goods Act, 1893,
applied; that the defendant's telegram and
letter afforded evidence of such constructive
delivery and receipt ; and that the plaintiff
was therefore entitled to damages. NicJwUs
V. White, 103 L. T. 800— D.
C. WHEN PROPERTY PASSES.
See also Vol. XII. 443, 1368.
Goods Sent on Approbation — Refusal to Give
Seller's Price — Delivery of Goods to Third
Person — Effect of Judgment without Satisfac-
tion against Person to whom Goods Sent on
Approbation.] — Goods were sent on approba-
tion by the plaintiffs to B. B. refused to give
the price asked by the plaintiffs and offered
a less sum. While B.'s offer was being con-
sidered the goods were left in his hands. The
plaintiffs declined to accept B.'s offer and
requested the return of the goods. By this
time B. had sold the goods to the defendant.
The plaintiffs sued B. in respect of the goods,
and his solicitor consented to judgment for
7501. Nothing having been recovered under
the judgment against B., the plaintiffs sued
the defendants to recover possession of the
goods or damages for their detention : — Held,
that by the form of the judgment obtained
against B. the plaintiff had taken judgment
for the price of the goods, that that judg-
ment amounted to an affirmance of B.'s pro-
perty in the goods, and therefore that the
plaintiffs were now precluded from suing the
defendants in respect of the goods. Brins-
mead v. Harrison (L. R. 6 C.P. 584) held
inapplicable. Bradley if Cohn v. Ramsay,
106 L. T. 771 ; 28 T. L. R. 388— C.A.
Sale or Return — Sub-transfer on Sale or
Return — "Act adopting the transaction."] —
Where a person who has received goods on
sale or return delivers them to another person
on sale or return he thereby does an " act
adopting the transaction " within the mean-
ing of section 18, rule 4 (a) of the Sale of
Goods Act, 1893, so that the property in the
goods passes to him. Kirkham v. Atten-
borough (66 L. J. Q.B. 149: [1897] 1 Q.B.
201) applied. Genn v. Winkel, 107 L. T. 434;
17 Com. Cas. 323; 56 S. J. 612: 28 T. L. R.
483— C.A.
Intention — Evidence.] — The junior partner
in a Tjondon firm of diamond merchants, when
till' firm was in financial embarrassment, made
an oral offer to the plaintiffs, who were diamond
merchants abroad, to buy from them a certain
parcel of diamonds at 180 francs per carat and
1353
SALE OF GOODS.
1354
to give a six months' bill. The offer was
accepted on behalf of the plaintiffs, and the
diamonds were sent by post to the purchaser's
firm together with the bill for acceptance and
an invoice marked " Settled by acceptance."
The bill was never accepted, the senior partner
repudiated the transaction, and a month later
the junior partner committed suicide. After-
wards the senior partner executed a deed of
assignment, and eventually a trustee in bank-
ruptcy was appointed. The plaintiffs then
brought an action against the trustee for the
return of the diamonds. The defence was that
the property in them had passed to the firm
and therefore to the trustee. It was admitted
that all similar dealings in diamonds were
carried through on the credit of acceptances.
The jury found that it was the intention of the
parties that the property should not pass to
the London firm until they had accepted the
bill by signing it : — Held, that there was
evidence on which the jury could properly so
find, and that therefore the plaintiffs were
entitled to the return of the diamonds and
were not limited to proving in the bankruptcy.
Saks X. TiUey. 32 T. L. R. 148— C. A.
Sale Obtained by Fraud — Pledge by Fraudu-
lent Buyer — Action by Seller against Pledgee
— Detinue — Burden of Proof — Larceny by a
Trick.] — The plaintiffs, who were jewellers,
delivered a pearl necklace to B. on a false
representation by him that he had a customer
for it. The delivery was on the terms of an
approbation note " on sale or return, net
cash." B. pledged the necklace with the
defendant, who was a pawnbroker. Subse-
quently, on B.'s suggestion, the plaintiffs
invoiced the necklace to him and received from
him bills of exchange in payment of the price.
The bills having been dishonoured, the plain-
tiffs sued the defendant for the return of the
necklace or payment of its value : — Held, that,
even if B. obtained the necklace by larceny
by a trick, or if the effect of the sale or return
transaction was to leave the property in the
necklace in the plaintiffs until B. paid cash
for it, yet the effect of the subsequent trans-
action of sale gave B. a title to the necklace,
though a voidable title, and that notwith-
standing the proviso in section 2.3 of the Sale
of Goods Act. 1893, the burden of proof was
on the plaintiffs to shew that the defendant
took the necklace in bad faith or with notice
of B.'s fraud. Wltitehorn v. Davisoj}, 80 L. J.
K.B. 425 : [1911] 1 K.B. 463 : 104 L. T. 234
— C.A.
Hire and Purchase — Agreement to Buy —
Option — Pledge — Conversion — Measure of
Damages."] — By section 25, sub-section 2 of
the Sale of Goods Act, 1893, " Where a person
having . . . agreed to buy goods obtains, with
the consent of the seller, possession of the
goods . . . the delivery or transfer by that
person ... of the goods . . . under any sale,
pledge, or other disposition thereof, to any
person receiving the same in good faith and
without notice of any lien or other right of the
original seller in respect of the goods, shall
have the same effect as if the person making
the delivery or transfer were a mercantile
agent in possession of the goods or documents
of title with the consent of the owner." The
owners of a motor taxicab let it to a motor
company for twenty-four months at 151. 12s. 2d.
per month. The agreement provided that the
hirers should pay .50L on account of hire in
advance, and should not re-let, sell, or part
with the possession of the cab without the
previous written consent of the owners. If
the hirers should before the expiration of the
period of twelve calendar months be desirous
of purchasing the cab, they were to be at
liberty to do so by making the amount of the
hire paid equal to the sum of 424L lis. 6d.
If they committed any breach of the clause
of the agreement as to parting with the posses-
sion of the cab without the written consent
of the owners, the latter were authorised to
take possession of the cab and terminate the
agreement. The hirers subsequently, without
the consent of the owners, pledged the cab and
certain other goods with the defendant under
an agreement which provided that the goods
were deposited as security for the payment of
a sum of money advanced to them by the
defendant. At the date of the agreement there
was due to the plaintiffs from the company
a sum of 561. 9s. in respect of the hire of the
cab, but the defendant received the cab in
good faith and without notice of any right
on the part of the plaintiffs. The defendant
having refused to return the cab to the
plaintiffs, they brought an action claiming the
return of the cab or its value, and damages
for its detention : — Held, that the hiring
agreement did not impose upon the hirers an
obligation to buy the cab, but merely gave
them an option to buy it, and that they were
therefore not persons who had " agreed to
buy " goods within the meaning of section 25,
sub-section 2 of the Sale of Goods Act, 1893,
and could not confer upon the defendant a
valid title to the cab. Held, further, that as
the defendant had an interest in the cab the
plaintiffs were not entitled to recover its full
value, but only the sum of 58Z. 9s., the amount
of their own interest in it. Helby v. Matthews
(64 L. J. Q.B. 465; [1895] A.C. 471) and
Lee V. Butler (62 L. J. Q.B. 591; [1893]
2 Q.B. 318) considered. Belstze Motor Supply
Co. V. Cox, 83 L. J. K.B. 261 ; [1914] 1 K.B.
244; 110 L. T. 151— Channell. J.
Fixtures — Hire-purchase Agreement — E quit-
able Interest in Land — Subsequent Equitable
Mortgage without Notice — Appointment of
Receiver for Equitable Mortgagees — Right of
Vendor of Fixtures to RemoYe — Priorities.] —
Under a hire-purchase agreement of Novem-
ber 11, 1910, contractors agreed to supply and
erect on the freehold premises of a manufactur-
ing firm a patent machine at the price of 237/.
payable by annual instalments. In the event
of default in payment of any instalment or any
breach of the agreement the whole unpaid
balance of principal and interest was imme-
diately to become due, and the basis of the
contract was that the machine should remain
the sole and exclusive property of the con-
tractors until the whole sum of 237Z. had been
paid, and that in the event of any default the
contractors might enter on the premises and
remove the machine. The machine was affixed
to the freehold. In January, 1911, an in-
1355
SALE OF GOODS.
1356
corporated company took over the assets and
liabilities of the firm including their interest
under the agreement. In December. 1911,
the company issued first mortgage debentures
charging all its undertaking and property as
a floating charge. The debenture-holders had
no notice of the agreement. Default was made
in payment of instalments under the agree-
ment, which by arrangement with the com-
pany were secured by promissory notes. The
last note for 50/. payable on October 21, 1912,
was not met. On' October 18, 1912, three
days before, a receiver and manager was
appointed in an action by the debenture-
holders to enforce their security, and he took
possession of the premises. Upon summons by
the contractors for leave to enter and remove
the machine, — Held, that the contractors took
under the agreement an equitable interest in
land which had priority over the subsequent
equitable mortgage of the debenture-holders,
and that the contractors could therefore enter
and remove the machine notwithstanding the
appointment of the receiver. Allen d- Sons,
Lim.. In re (76 L. J. Ch. 3fi2 ; [1907] 1 Ch.
575), approved. Morrison, Jones d- Taylor,
Lim. In re; Cookes v. The Company, 83 L. J.
Ch. 129: [1914] 1 Ch. 50; 109 L. T. 722;
58 S. J. 80; 30 T. L. E. 59— C. A.
Delivery Order — Document of Title — De-
livery Order Created and Issued by Owner of
Goods — Whether a "transfer" — Delivery
Order not for Specific Goods. 1 — A delivery
order was given by the defendants to F. for
2,640 bags of mowra seed, which formed part
of a consignment of 6,400 bags. F. gave the
defendants a cheque therefor and indorsed the
delivery order to the plaintiffs, who took it
in good faith and for valuable consideration.
F.'s cheque having been dishonoured, the
defendants refused to give delivery of the seed
to the plaintiffs : — Held, finst, that the delivery
order was a document of title to the goods
which had been " transferred " by the defen-
dants to F. within the meaning of section 10
of the Factors Act, 1889, and section 47 of
the Sale of Goods Act. 1893, and having been
transferred by F. to the plaintiffs, who took
it in good faith and for valuable consideration,
the defendants' right of lien as unpaid vendors
was defeated; and secondly, that the delivery
order was valid notwithstanding that it re-
lated to goods which were not specific. Capital
and Counties Bank v. Warriner (1 Com. Cas.
314) followed. Ant. Jurgens Margarine-
fabrieken v. Dreyfus ,(■ Co., 83 L. J. K.B.
1344; [1914] 3 K.B. 40; 111 L. T. 248;
19 Com. Cas. 333— Pickf ord , J.
D. WAREANTIES.
See also Vol. XII. 474. 1377.
Representation that Goods are Suitable for
Special Purpose.] — A purchaser buying goods
on the recommendation of the vendor that
they are suited to a special purpose, has a
remedy by action for breach of contract, and
not for toVt, in negligently giving bad advice,
if the goods prove unsuitable. Rowe v.
Cros.sley, 108 L. T. 11; 57 S. J. 144— C.A.
Fitness for Purpose — Right to Reject — Re-
jection in Time — Measure of Damages.] — In
January, 1907, M., who had contracted to
supply a pump to a district council, ordered
a pump for this purpose from B., and the
pump was fitted up in May, 1907. It was a
term of both contracts that the pump should
lift a certain quantity of water per minute,
and should be capable of being worked by a
boy. Shortly after the pump was fitted up
the district council complained to M. that this
requirement was not satisfied by the pump,
and he communicated with B., who replied
that if the pump were properly fitted up it
would be all right. In June, 1907, B. himself
examined the pump, and reported to M. that
he had put it right. Further complaints, how-
ever, were made by the district council, and
in July and September M. sent workmen to
examine the pump. Ultimately the district
council, in December, 1908, rejected the pump,
on the ground that it did not satisfy the
requirement of being workable by a boy. M.
refused to accept this rejection, and in January,
1909. sued the council for the price. Shortly
after the raising of this action M. was informed
for the first time by B. that a boy could not
raise with the pump the specified quantity
of water per minute, and that he had not
understood that the pump must satisfy thig
requirement. Thereupon M., who had through-
out intimated to B. that he would not pay for
the pump until the district council had settled
with him for it, at once intimated to B. that
he rejected the pump as being disconform to
contract, and that he proposed to settle the
action with the council on the basis that the
pump was not conform to contract : — Held,
in actions between M. and B. — first, that in
the circumstances M. had not accepted the
pump ; and secondly, that — as the delay in
rejecting it was due to the representations
of B. (on which M., not being skilled in
pumps, was entitled to rely) to the effect that
the pump was conform to contract — B. could
not plead that the rejection was not in time.
Held, further, that M. was entitled to recover
as damages from B. {inter alia) the amount
of the expenses incurred by him in the action
against the district council. Munro v. Bennet,
[1911] S. C. 337— Ct. of Sess.
Sale of Horse under Warranty — Rejection.]
— A horse was sold with a warranty that it
was a good worker and sound in wind, and
the purchasers bargained that they should have
a week's trial : — Held, that the contract was
one of sale under warranty and not one of
sale on approbation, and accordingly that the
purchasers were entitled to reject the horse
within the week if it was disconform to the
warranty, but not otherwise. Cranston v.
Mallow\f Lien. [1912] S. C. 112— Ct. of Sess.
Horse Purchased for Stud Purposes — Verbal
Representation by Seller of Soundness — Ex-
press Warranty.] — The plaintiff, requiring a
stallion for stud purposes, inspected a horse
the property of the defendant, a horse dealer.
The plaintiff swore that while he was looking
at the horse the defendant said to him : " You
need not look for anything ; the horse is per-
fectly sound. If there was anything the
1857
SALE OF GOODS.
13/58
matter I would tell you." When the horse
was delivered it was found to be affected by
an incurable and hereditary disease of the eyes
which rendered it totally unfit for the stud.
In an action brought on an express warrantj'
that the horse was sound and free from
hereditary disease, the defendant denied that
he spoke the above words or anything to that
effect, or gave any warranty. The Judge, in
charging the jury, said. " The question you
have to try is. Did the defendant at the time
of the sale represent to the plaintiff, in order
that the plaintiff might purchase the horse,
that the horse was fit for stud purposes and
was sound?" And, after referring to the
conflicting evidence, " There was direct con-
tradiction— which of them do you believe?
. . . Did the plaintiff act on that representa-
tion in the purchase of the horse? " And he
left in writing to the jury (inter alia} the
question, " Did the defendant at the time of
the sale represent to the plaintiff, in order
that the plaintiff might purchase the horse,
that the horse was fit for stud purposes, and
did the plaintiff act on that representation in
the purchase of the horse?" The jury
answered in the affirmative : — Held, that the
words deposed to by the plaintiff as having
been used by the defendant constituted an
express warranty of the soundness of the
horse ; and that although the words " warrant "
or " warranty " did not appear in the question
submitted to the jury, that question, especially
taken in connection with the Judge's charge,
presented for the consideration of the jury
all the elements of what constituted a war-
ranty, and that their answer to it in the
affirmative, shewing that they believed the
plaintiff's evidence, was a clear finding of an
express warrantv. Schawel v. Reade. [1913]
2 Ir. R. 64— H.L. (Ir.)
Goods not According to Description — Re-
sale — Breacli of Condition — Non-warranty
Clause.] — The appellants purchased from the
respondents seed which was described as
"common English sainfoin." It was subse-
quently discovered to be " giant sainfoin,"
which is different and of inferior quality. The
appellants re-sold part of the seed and paid
the purchasers from them the difference
between the value of the seed sold and that
of connnon English sainfoin. In the sold
note the respondents declined to give any
" warranty express or implied as to growth,
description, or any other matters." In an
action against the original sellers, — Held, that
the appellants were entitled to be repaid by
the respondents the amount of such difference
as for a breach of warrantv. Decision of the
Court of Appeal (79 L. J. K.B. 1013; [1910]
2 K.B. 1003) reversed. Wallis v. Pratt,
80 L. J. K.B. 1058; [1911] A.C. 394;
105 L. T. 14f); 55 S. J. 49fi ; 27 T. L. R. 431
-H.L. (E.)
Sale of Meat Unfit for Human Food— Con-
viction of Purchaser under the Public Health
(London) Act, 1891— Breach of Implied War-
ranty—Liability of Vendor Salesman — Market
Custom — Usage Overriding Law. — Bv sec-
tion 55 of the Sale of (ioods Act, 1893', it is
provided that evidence of a trade usage, if
it be such as to bind both parties to a
contract, may set aside ordinary rights and
liabilities which might arise under the con-
tract by implication of law. So where a
butcher sought to make a market salesman
liable for selling him bad meat, and pleaded
that he had made known the purpose for
which the meat was bought, and had relied
upon the skill and judgment of the seller, it
was held that these conditions would prima
facie give the purchaser a remedy under
section 14 of the same Act, but that the
salesman was entitled to set up the defence
that there was an implied usage amongst
traders in the market to give no warranty in
the sale of meat. Cointat v. Myham, 84 L. J.
K.B. 2253; 110 L. T. 749; 78 J. P. 193;
12 L. G. R. 274; 30 T. L. R. 282— C.A.
Appeal from judgment of Lord Coleridge, J.
(82 L. J. K.B. 551; [1913] 2 K.B. 220),
allowed. 75.
"Delivery as required" — Successive Instal-
ments— Construction of Contract — " Merchant-
able quality."! — TJie expression "merchant-
able quality " in section 14, sub-section 2 of
the Sale of Goods Act. 1893, means goods
saleable at the time the delivery is made, and
not goods which can only be made saleable if
some labour is expended on them. Jackson v.
Roter Motor and Cycle Co., 80 L. J. K.B. 38:
[1910] 2 K.B. 937: 103 L. T. 411— C.A.
In October, 1908, the defendants, an English
company who sell motor accessories, gave an
order to the plaintiff, a manufacturer in Paris,
for a large number of motor horns of different
sizes and of different prices, " delivery as
required." The goods were delivered in nine-
teen cases at various dates in May and June,
1909, the last delivery being on June 24. On
the same day the defendants inspected the
goods, and as the result of their inspection
rejected them all (except those contained in
one case which they had already re-sold)
mainly on the ground that the goods were not
merchantable. In an action by the plaintiff
to recover the price of the goods, — Held, that,
according to the true construction of the con-
tract, it was to be treated as a separate
contract in respect of each consignment ; and
that (subject to the exception of de yniniinis)
the buyer had a right to insist that all the
goods comprised in each consignment should
be of merchantable quality, and if they were
not, then to reject the whole consignment.
Tarling v. O'Riordan (2 L. R. Ir. 82) fol-
lowed. //).
E. PERFORMANCE OF CONTRACT.
1. Time of Deliverv.
See also Vol. XII. 529, 1.390.
Delay in Delivery — Failure of Commercial
Object of Contract — Right of Buyers to Refuse
to Accept Delivery. — IK a contract m writing
200 tons of cotton seed were sold for shipment
from Bombay and certain other Indian ports
to Hull ria Suez Canal during August and
September, 1910, at fi/. 15s. per ton net, free
delivered in sound and merchantable condition
to buyers' craft alongside. Shipment was to
1359
SALE OF GOODS.
1360
be by steamer or steamers, direct or indirect,
with or without transhipment ; and the bill of
lading was to be proof of date of shipment in
the absence of evidence to the contrary. Par-
ticulars of shipment were to be given within
six days after the receipt of the shipping
documents in this country. It was further
provided that if the seed on arrival proved to
be not as warranted, or was damaged or out
of condition, it was to be taken with an allow-
ance. The contract was to be void as to any
portion shipped that might not arrive by the
ship or ships declared against the contract.
By notice in writing dated September 6, 1910,
the sellers declared a shipment under the con-
tract of 1,600 bags of cotton seed by the
Othello under a bill of lading dated August 16,
1910. The Othello, which was a general ship,
left Bombay with the cotton seed on board on
August 18, 1910, intending to call at Karachi
for further cargo. On August 22, 1910, when
near Karachi, she stranded, and was not re-
floated till November 27, 1910. About 1,646
tons of her original cargo, including the cotton
seed, were landed and stored at Karachi, and
she returned to Bombay for repairs. On
February 12. 1911, the Othello again left
Bombay, having on board 1..540 tons of new
cargo to replace a somewhat larger quantity
of manganese ore originally shipped at Bom-
bay, but jettisoned on the stranding off
Karachi. Included in these 1,540 tons of new
cargo was a further quantity of cotton seed
which, being shipped in February, was avail-
able for and was used by the owners thereof
to fulfil contracts made by other parties for
January-February shipment. On the arrival
of the Othello at Karachi on the second
occasion she loaded the cargo, including the
cotton seed in question, which had been left
there, and on February 20 she sailed for Hull,
where her cargo, including the cotton seed,
was discharged on March 27, 1911, the cotton
seed being carried under the original bill of
lading. The buyers having declined to accept
the declaration of shipment as a proper
declaration in fulfilment of the contract, the
dispute was referred to arbitration. No
evidence was given in the arbitration to shew
that the stranding of the Othello was due to
negligence. The arbitrators found that there
was no undue delay in the refloating of the
vessel after tlie stranding, or in the execution
of the repairs, and that the voyage was not
unduly delayed by the loading of the further
cargo at Bombay ; that cotton seed purchased
for August or September shipment would be
seed of the old crop, and on arrival in the
ordinary course would go into consumption
before the new crop would be available; that
when the new crop first comes on the market
the value of seed of the old crop is at a
discount as compared witli the price of seed of
the new crop; and, so far as the question
was for them, the arbitrators found as a fact
that the delay in delivery beyond the normal
time for a voyage from Bombay to Hull was
not due to any act or default of the sellers.
They further found that the buyers had been
prejudiced by the fact (but not further or
otherwise) that the seed, being seed of the old
crop, arrived at a time when it had to com-
pete on the market with seed of the new
crop. On these findings, — Held, that there
had been no cancellation of the original ship-
ment in August, 1910, so as to make the
re-loading at Karachi in February, 1911, a
new shipment, and as such not within the
time stipulated for by the contract ; that the
loading of further cargo at Bombay in Febru-
ary, 1911, did not constitute a new voyage so as
to vitiate the tender made by the sellers ; that
the mere fact that the seed when it arrived
at Hull was exposed to a more highly com-
petitive market than that which it was
expected would be found was not sufiBcient to
warrant a finding of fact that the commercial
object of the contract was defeated ; that
therefore the sellers were entitled to call
upon the buyers to accept delivery of the
seed; but, semble, that, on the construction of
the contract, the buyers would be entitled to
damages for the delay in the delivery of the
seed if it could be shewn that the delay had
been caused by the negligent navigation of
the Othello. Carver .f Sassoon. In re, 17 Com.
Gas. .59^D.
Contract to Build Ship — Date of Completion
— Delay — Force Majeure." — The defendants,
an English firm of shipbuilders, contracted to
build a ship for the plaintiff, a Koumanian
merchant, and to deliver the same on or before
a certain date. The contract contained a
provision that if the ship was not delivered at
the stipulated time the defendants should pay
to the plaintiff as liquidated damages lOZ. for
each day of delay. There was also a clause
to the effect that in calculating days of delay
there should be excepted " only the cause of
jorce majeure and/or strikes of workmen of
the building yard where the vessel is being
built or the workshops where the machinery is
being made or at the works where steel is
being manufactured for the steamer or any
works of any sub-contractor." The plaintiffs
were one hundred and seventy-five days late
in delivering the ship. They attributed this
delay to the following causes : First, the
indirect effect of the coal strike of 1912, which,
by causing general dislocation of trade, delayed
the completion of other steamers on turn for
building before the one under this contract ;
secondly, the breakdown of certain machinery,
resulting from accidents, and not from the
fault of any of the defendants' workmen ;
thirdly, bad weather, which prevented the
work from proceeding; and fourthly, absence
from work of their employees for the purpose
of attending the funeral of the manager of
the shipyard, visiting football matches, and
taking certain holidays : — Held, that the
indirect effect of the coal strike and the break-
down of machinery were causes of delay
covered by the words ''jorce majeure " in the
exception clause, and that the defendants were
entitled to an allowance in respect thereof.
Held also, that bad weather and absence from
work of employees were not such causes of
delav. Matsoukix v. Priestman <f Co., 84 Li. J.
K.B*. 967; [191.5] 1 K.B. 681; 113 L. T. 48;
20 Com. Cas. 2-52— Bailhache, J.
" Shipment made or to be made, and bill or
bills of lading dated or to be dated during
1361
SALE OF GOODS.
1362
December or January "—Whether Stipulation
as to Date of Bill of Lading a Condition.]— A
contract for the sale of beans, made in the
form adopted by the London Corn Trade
Association, contained the clause, " Shipment
made or to be made, and bill or bills of lading
dated or to be dated during December, 1909,
and /or January, 1910." It also contained the
clause : " Bill of lading to be considered proof
of date of shipment in the absence of evidence
to the contrary " -.—Held, that the stipulation
that the bills of lading were to be dated during
December, 1909, and/or January, 1910, was a
condition of the contract, and therefore that
the buyers were entitled to reject the beans
where they were shipped in January, 1910.
but the bill of lading tendered was dated
February, 1910. General Trading Co. and
Van Stalk's Commissiehandel, In re, 16 Com.
Cas. 95— A. T. Lawrence, J.
2. Quantity of Goods.
See also Vol. XII. .5.39, 1392.
Trivial Excess over Quantity Contracted for
— Right to Reject Whole.] — On a sale of
goods, delivery to the buyer of a quantity
larger than that contracted for, where the
excess is so small that reasonable business
men would not regard it as a matter of
importance, and where payment for the excess
is not demanded by the seller, does not entitle
the buyer to reject the whole of the goods
under the provisions of section 80, sub-section 2
of the Sale of Goods Act, 1893. Shipton,
Anderson d: Co. v. Weil Brothers & Co.,
81 L. J. K.B. 910; [1912] 1 K.B. 574;
106 L. T. 372; 17 Com. Cas. 153; 28 T. L. K.
269— Lush, J.
3. Other Points as to Delivery.
See also Vol. XII. 550, 1394.
F.o.b. Contract— Transit— Route Involving
Sea Transit — Notice by Seller to Buyer to
Enable Buyer to Insure.] — By section .32, sub-
section 3 of the Sale of Goods Act, 1893 :
" Unless otherwise agreed, where goods are
sent by the seller to the buyer by a route
involving sea transit, under circumstances in
which it is usual to insure, the seller must
give such notice to the buyer as may enable
him to insure them during their sea transit,
and, if the seller fails to do so the goods shall
be deemed to be at his risk, during such sea
transit " :—He/(/, by the Court of Appeal
(Buckley, L.J., and Hamilton, L.J. ; Vaughan
Williams, L.J., dissenting), that the seller is
not bound to give notice to the buyer under
the above sub-section where the buyer already
has sufficient information to enable him to
insure the goods in the ordinary way, and that
the buyer's information is not necessarily in-
sufi&cient for this purpose merely because he
does not know the name of the particular vessel
on which the goods are shipped: and, further,
that where the contract itself contains sufficient
information to enable the buyer to insure, it
constitutes notice within the meaning of the
sub-section. Held, also, by Vaughan Wil-
liams, L.J., and Buckley, L.J. (Hamilton,
L.J., dissenting), that the above sub-section
applies to an ordinary f.o.b. contract for the
sale of goods. Wimble v. Rosenberg, 82 L. J.
K.B. 1251; [1913] 3 K.B. 743; 109 L. T. 294;
18 Cora. Cas. 302; 12 Asp. M.C. 373; 57 S. J.
784; 29 T. L. E. 752— C.A.
Re-sale — Appropriation of Shipment to Con-
tract—Knovsledge of Sellers of Loss of Ship
and Cargo at Time of Making Tender of Appro-
priation—Validity of Tender.]— By a contract
in writing dated May 30, 1912, 6,000 tons of
soya beans were sold by the respondents to
the appellants for shipment from an Oriental
port or ports during December, 1912, and /or
January, 1913, by steamer direct or indirect
via Suez Canal or Cape to Hull. Clause 3
provided that particulars of shipment with
dates of bill or bills of lading, approximate
weight, marks (if any), and numbers of bags
were to be declared by original sellers not later
than forty days from the date of last bill of
lading. In case of re-sales, copy of original
appropriation should be accepted by buyers
and passed on without delay. Clause 1() pro-
vided that the contract was to be void as
regards any portion shipped that might not
arrive by the ship or ships declared against
the contract. The respondents on September 9,
1912, purchased from the E. A. Co. under a
similar contract an identical quantity of 6,000
tons of soya beans for shipment in December,
1912, and/or January, 1913. On February,
1913, the respondents received from the
E. A. Co. a declaration and appropriation of
a cargo of 6,400 tons of beans which had been
shipped by the E. A. Co. per the steamship
Canterbury. Later, on February 4, 1913, the
respondents declared and appropriated this
shipment to their contract with the appellants.
The Canterbury, having started on her voyage,
was wrecked, and founded on February 4,
1913, and the cargo was totally lost. The loss
was not known to the E. A. Co. at the time
of their declaration and appropriation, but the
loss was known to the respondents at the time
of their tender of declaration and appropria-
tion to the appellants. The appellants con-
tended that they were not bound to accept the
tender per the steamship Canterburij, and the
dispute was accordingly referred to arbitra-
tion -.—Held, that a valid declaration and
appropriation under the contract could only be
made by the respondents, the sellers, in respect
of goods which had been shipped and which
were believed by them to be in existence at
the date of the declaration, even though there
had been a prior valid appropriation of the
goods to them ; that clause 10 of the contract
onlv applied to absolve the seller when there
hacl been a valid declaration; and that, as
there had been no valid declaration and appro-
priation as between the respondents and appel-
lants, inasmuch as the respondents knew of the
loss of the ship at the time when they made
their declaration and appropriation, clause 10
did not apply so as to render the contract void.
Olympia Oil and Cake Co. and Produce Brokers
Co., hi re {No. L, 84 L. J. K.B. 281; [1915]
1 K.B. 233; 111 L. T. 1107; 19 Com. Cas. 359
— D.
1363
SALE OF GOODS.
1364
C.i.f. Contract — Failure of Vendors to Insure
— Safe Arrival of Goods — Right of Purchasers
to Reject.] — The plaintiffs a{,aved to sell to
the defendants twenty cases of French walnuts,
c.i.f. Hull, on the terms thirty days net. The
walnuts were shipped under a bill of lading,
which was sent, together with the invoice, to
the defendants. The plaintiffs did not, how-
ever, tender to the defendants a policj- of
insurance, and they had not in fact effected an
insurance on the goods to Hull. The walnuts
were delayed in transit, but ultimately arrived
at Hull some time after the date at which, in
the ordinary course, they would have arrived.
The defendants having refused to accept them,
the plaintiffs brought an action to recover the
agreed price of the goods : — Held, that as no
policy of insurance had been effected by the
plaintiffs upon the goods to Hull, they had not
been delivered in accordance with the contract,
and the defendants were therefore entitled to
judgment. Orient Co. v. Brekke, 82 L. J.
K.B. 427 : [1913] 1 K.B. 531 : 108 L. T. 507 ;
18 Com. Cas. 101— P.
Delivery by Instalments — Delivery of First
Instalments — Part Payment of Price thereof
— Vendor's Claim to Lien on Remainder of
Goods.] — The defendants contracted to buy a
quantity of onions from the plaintiff. After
the arrival of the first shipment the defendants
paid certain sums on account thereof, and the
plaintiff refused to deliver the second and third
shipments until after the balance of the price
of the first shipment had been paid. In an
action by the plaintiff against the defendant
to recover the balance of the price of the first
shipment, the defendants counterclaimed for
damages for non-delivery of the remainder of
the goods : — Held, that the plaintiff was
entitled to recover on his claim, but that he
had no lien on the undelivered goods under
sections 39 and 42 of the Sale of Goods Act,
1893, as the property in them had not passed
to the defendants, and in the circumstances he
was not entitled to refuse delivery, and that
consequently the defendants were entitled to
recover on the counterclaim. Steinberger v.
Atkinsn,} ,l- Co.. 31 T. L. R. 110— Atkiii, J.
Sale of Floating Dock — Price Inclusive of
Towage, Insurance, &c. — Sellers' Obligation
as to Policies." — A flouting dock was sold to
the plaintiffs for 19,000/., "which price
includes cost of towing from Avoninouth to
Brindisi, cost of insurance, and all fittings,
strengthenings and towing gear, ropes. &c..
necessary for the voyage. . . . Before the dock
leaves, vendors agree to hand to purchasers
r.loyd's policies of insurance for 16,500/. This
insurance will be duly indorsed over to them,
and thty shall receive the full benefit of such
policies " : — Held, that under this contract the
sellers were bound to give valid policies to the
purchasers. Cantiere Meccauico Brivdisino v.
Constatit, 12 Asp. M.C. 180: 17 Com. Cas. 182
— Scrutton, J. Atfirmcd. 17 Com. Cas. 332—
C.A.
Seller's Option to Cancel in Case of Prohibi-
tion of Export Preventing Shipment of Wheat
to this Country — Partial Prohibition of Export
— Non-delivery by Sellers — Effect of Partial
Prohibition.]— A contract dated July 27, 1914,
for the sale of 200 sacks of flour provided
that ■■ in case of prohibition of export,
blockade, or hostilities preventing shipment
or delivery of wheat to this country, the
sellers shall have the option of cancelling this
contract." On July 31, 1914, the export of
wheat and flour was prohibited from twenty-
one countries, including Russia, Egypt, and
Roumania ; but there was no similar prohibi-
tion from the United States, Canada, and the
British East Indies, which were the principal
sources of supply of wheat imported into this
country. The price of wheat rose consider-
ably in consequence of the prohibition. The
sellers failed to deliver 112 sacks of flour,
and claimed to cancel the contract : — Held,
that in order that the clause in the contract
should be brought into operation it was not
necessary that there should be a total preven-
tion of deliverj' of wheat to this country
through prohibitions of export ; it was suffi-
cient if there was such a prohibition of export
as caused one or more substantial sources of
supply to be shut up, or which caused a source
of supply to be shut up whereby a considerable
rise in the price of wheat in this country was
occasioned ; and that as there was a prohibition
of export of wheat from Russia, which was a
considerable source of supply, and as the effect
of the prohibitions had been to cause a con-
siderable rise in the price of wheat, the sellers
were entitled under the clause to cancel the
contract. Ford <(■ Sons. Lim. v. Leetham (f
Sons. Lim., 84 L. J. K.B. 2101; 21 Com. Cas.
55: 31 T. L. R. .522— Bailhache, J.
F. DISCHARGE AND BREACH OF
CONTRACT.
1. Impossibility of Performance.
See also Vol. XII. .553, 1396.
Sale and Purchase of Sugar — Enabargo on
Export — Outbreak of War — Impossibility of
Performance of Contract — Sugar Association's
Rules — Right to Proceed to Arbitration.] — The
plaintiff entered into two contracts for the
purchase of a quantity of beetroot sugar f.o.b.
at Hamburg. The contracts were made sub-
ject to the rules, regulations, and by-laws of
the Sugar Association of London, and were
registered with the London Produce Clearing
House, Lim. Under those rules and regula-
tions Wh vendors and purchasers of sugar
register their contracts with the London Pro-
duce Clearing House, Lim., and a novation
follows under which the Clearing House
becomes the purchasers from the sellers and
the sellers to the purchasers. The defendants
Tolme and Runge entered into contracts by
which they had sold a quantity of sugar to
the Clearing House for delivery in August and
that sugar had been appropriated by the
Clearing House to the plaintiff's contract. The
sugar in question had arrived at the shipping
port of Hamburg and was free of all Customs
formalities recjuired prior to export, and was
Iving there stored in warehouse. On July 31,
1914, the German Government placed an em-
bargo on the export of sugar. On the same
day Tolme and Runge made a tender of the
1365
SALE OF GOODS.
1366
sugar and asked for shipping instructions. On
August 4, 1914, war broke out between Great
Britain and Germany. On August 7 the plain-
tiff refused to accept the tender, alleging that
the original contracts were void and incapable
of performance. The defendants claimed
arbitration under rule 491 (6) of the Sugar
Association's rules, which provided : " For
the purposes of the war clause a contract
against which a tender has been made shall
be deemed a closed contract. Should the state
of war prevent shipment or warehousing and/or
passing of documents, then any party to the
contract shall be entitled to appeal to the
council for a decision which shall be binding
on all concerned." The plaintiff then issued
a writ claiming a declaration that the con-
tracts were void and incapable of performance
by reason of the embargo, or were illegal by
reason of the war and the proclamation against
trading with the enemy, and he further claimed
an injunction to restrain the defendants from
proceeding to arbitration : — Held, that the
plaintiff was not entitled to either the declara-
tion or the injunction asked for as the tender
of the sugar by Tolme and Runge on July 31
was a good tender notwithstanding the em-
bargo, and that thereupon it was the duty of
the buyer to give practicable shipping or stor-
ing instructions ; that the contract was to be
deemed a closed contract under rule 491 (b),
the object of which was to provide for a sub-
stituted fulfilment of the contract in the event
of war making its fulfilment as originally
intended impossible ; and that there was
nothing illegal in the parties contracting that
a third party should give a binding decision
in such an event, nor was there any illegality
in the plaintiff taking steps to protect his pro-
perty abroad as distinguished from taking steps
to trade with the enemy. Jager v. Tolme,
31 T. L. R. 381— Sankey, J.
The plaintiffs entered into contracts for the
purchase of 6,'250 tons of German beetroot
sugar for delivery in August, 1914, f.o.b. Ham-
burg. The contracts were made subject to the
rules of the Sugar Association of London and
of the London Produce Cleafing Hou.se, Lim.
Under those rules both vendors and purchasers
of sugar register their contracts with the
London Produce Clearing House, Lim., and
when registered the contracts take effect as if
the respective parties had contracted with the
Ijondon Produce Clearing House, the Clearing
House becoming by novation a buyer from
every seller and a seller to every buyer. The
defendants had also entered into contracts for
the sale of a quantity of sugar, and the
Clearing House allocated those contracts in
pt rformance of the contracts of purchase
entered into by the plaintiffs. Tenders of the
sugars to the plaintiffs were made on July 30
and 3], 1914, by the Clearing House, by giving
to the plaintiffs notice that the sugars were
ready for shipment at Hamburg, and giving
particulars of the number of bags, marks,
country of origin, and prices. The sugar in
question had arrived in the free haven of
Hamburg free of all Customs formalities.
The plaintiffs on July 30 and 31 gave shipping
instructions as regards 2,000 tons, but no
instructions as to delivery were given with
regard to the balance. The plaintiffs, as they
were entitled to do under the rules, required
that the tendered sugar should be re-sampled,
analysed, and re-weighed, and these things
had to be done by the sellers. On July 31 the
German Government placed an embargo on
the export of sugar from Germany, and on
August 4 war was declared between Great
Britain and Germany. In these circumstances
the sugar could not be shipped in accordance
with the shipping instructions. The plaintiffs
claimed declarations that the contracts were
incapable of performance and void by reason
of the embargo, that they were discharged
from further performance of the contracts,
that the contracts were dissolved by reason of
the war, and that they were under no liability
to pay for the sugar : — Held, that the property
in the sugar did not pass to the plaintiffs on
tender of the sugar, but that, whether it did
or not, the plaintiffs were entitled to the
declarations which they claimed, as the con-
tracts were incapable of performance and the
further performance of the contracts was
illegal as involving trading with the enemy ;
that rule 491b of the Sugar Association Rules,
upon which the defendants relied, had no
application ; and that the plaintiffs were not
bound to exercise to their own detriment the
option which they had in order that the defen-
dants might escape without loss. Grey £ Co.
V. Tohne (No. 2), 31 T. L. R. 551—
Bailhache. J.
Requisition by Government — Liability of
Sellers.] — By a contract of sale, dated Sep-
tember 2, 1914, the sellers sold to the buyers
a parcel of wheat lying in warehouse on the
terms " cash within seven days against
transfer order." On September 4 the sellers
were informed by the Admiralty that the
wheat had been requisitioned by the Govern-
ment, and on September 8 they received a
written requisition. The buyers thereupon
claimed damages from the sellers for non-
delivery of the wheat, and the matter was
referred to arbitration. Upon a Case stated,
— Held, first, that, upon the true construction
of the contract, the property in the wheat
had not passed to the buyers; and secondly,
that as the sale was a sale of specific goods,
and delivery had been prevented by a lawful
act of State — namely, the requisitioning of
the goods — the sellers were excused from
carrying out their contract. Shipton, .liider-
son cf Co. V. Harrison Brothers <f: Co.,
84 L. J. K.B. 2137; [1915] 3 K.B. 676;
31 T. L. R. 598— D.
Sale of Ore — Suspensory Clause — War —
Stoppage of Mine — Sellers' Right of Suspen-
sion.!— By certain contracts, made in M;irrh
and November. 1914, for the sale by the defen-
dants to the plaintiffs of a quantity of iron
ore from a particular mine, it was provided
that in the event of war. restraint of princes,
or other occurrences beyond the personal con-
trol of the buyers or sellers, affecting the mine
or the ships by which the ore was to be con-
veyed, the contract should, at the option of
the party affected, be suspended. In conse-
quence of the loss of the German market,
owing to the war, the mine could not be
1367
SALE OF GOODS.
1368
worked at a profit, and it was therefore closed.
There was also a great shortage of shipping,
with a resulting rise of freights, and the
Government requisitioned the class of vessel
used for shipping the ore. For these reasons
the defendants in February, 1915, gave notice
to suspend delivery. In an action by the
plaintiffs for a declaration that the defendants
were not entitled to suspend the operation of
the contracts, — Held, that in the circum-
stances the war was the effective cause of the
stoppage of the mine, and the defendants were
entitled, under the terras of the contract, to
give notice suspending it, and therefore the
plaintiffs were not entitled to the declaration
claimed. Ebbw Vale Steel. Iron and Coal Co.
V. Macleod <i Co., 31 T. L. B. 604—
Bailhache, J.
2. Illegality.
Declaration of War — Tender of GeFman
Shipping Documents — Obligation of Buyer.] —
Under two c.i.f. contracts (made respectively
between two English firms) the sellers sold to
the buyers a quantity of horse beans, to be
shipped from a port in China to Naples. Pay-
ment was to be in net cash in London on
arrival of the goods at port of discharge in
exchange for bill of lading and policy of
insurance, but was to be made in no case
later than three months from the date of the
bill of lading, or upon the posting of the vessel
at Lloyd's as a total loss. The sellers respec-
tively shipped the beans on a German steamer
for conveyance to Naples. War subsequently
broke out between England and Germany,
and the vessels entered ports of refuge and
remained there. Three months after the date
of the bill of lading the respective sellers
tendered to the buj'ers the shipping documents
— namely, in the one case the German bill of
lading and an English policy, and in the other
case the German bill of lading and a German
policy. The buyers refused to accept the docu-
ments or to pay for the goods : — Held, that the
tender of the documents was not, under the
circumstances, a good tender; that the buyers
were entitled to reject it, and that the sellers
could not therefore claim payment against the
documents. Esposito v, Boicden (27 L. J.
Q.B. 17; 7 E. & B. 763) and Janson v.
Driefontein Consolidated Mines (71 L. J.
K.B. 857; [1902] A.C. 484) considered.
Karberg it Co. v. Blythe, Greer}, Jourdain (f
Co. ; Schneider d Co. v. Burgett tf Neicsam.
84 L. J. K.B. 1673; [1916] 2 K.B. 379;
113 L. T. 185; 31 T. L. E. 351— Scrutton, J.
C.i.f. Contract — " Payment net cash in
Liverpool in exchange for shipping documents"
— Goods Carried in Enemy Ship — Tender of
Documents after Outbreak of War — Right of
Buyers to Refuse to Accept Documents, i — By
a contract dated May 11, lUli, the claimants
sold to tlie respondents " about 300 barrels
June and/or July shipment Chilean honey per
steamer . . . cost, freight, and insurance to
Hamburg. . . . Payment : net cash in Liver-
pool in exchange for shipping documents on
pr(\sentation of same." Both the claimants
and respondents were English firms of
merchants carrying on business at Liverpool.
The honey was shipped by the claimants on
June 28, 1914, at Penco on board the German
steamship Menes. and by the bill of lading
was to be carried from Penco to Hamburg, and
there delivered to the claimants or their
assigns. The bill of lading contained a condi-
tion that " all questions arising under this bill
are to be governed by the law of the German
Empire and to be decided in Hamburg." War
was declared between Great Britain and
Germany on August 4, 1914, and on August 5
a Eoyal proclamation was issued warning all
persons carrying on business in the British
dominions against trading in goods destined
for persons resident, carrying on business, or
being in the German Empire. On the same
day a tender of the shipping documents was
made on behalf of the claimants to the respon-
dents, who, however, refused to accept the
documents. The Menes had not arrived at
Hamburg at the date of the tender of docu-
ments : — Held, that the respondents were
entitled to refuse to carry out the contract,
because to carry out the contract would be a
direct violation of the proclamation, and
therefore illegal. Duncan, Fox if Co. v,
Schrempft dc Bonke, 84 L. J. K.B. 2206;
[1915] 3 K.B. 355; 113 L. T. 600; 20 Com.
Cas. 337 ; 59 S. J. 578 ; 31 T. L. R. 491— C.A.
3. FR.-iUD.
See also Vol. XII. 557, 1398.
Error as to Substance of Articles Sold —
Modern Imitations of Antique Furniture.] —
A dealer in modern and antique furniture sold
to a customer ten ribbon-backed chairs, which
he described in a receipt for part payment of
the price as a " set of antique mahogany
chairs," but which proved not to be genuine
antiques, but to be modern imitations. The
price stipulated was a fair price for the
articles actually sold. The seller gave no
history of the chairs or guarantee that they
were antique, but he made certain represen-
tations, held not to be fraudulent, which in-
duced the buyer to believe that he was buying
a set of old chairs : — Held, that there had
been such misrepresentation as to the sub-
stance of the articles sold as to entitle the
buver to rescind the contract. Edgar v.
Hector, [1912] S. C. 348— Ct. of Sess!
4. Eefusal to Perform.
See also Vol. XII. 559, 1399.
Buyer Prevented from Fulfilling Contract by
Failure of Seller to do his Part — Claim by
Buyer for Damages.] — The plaintiff contracted
with a mining company to remove waste rock
then lying in the waste dump at the mine
within a period of two years, provided that it
did not exceed 50,000 tons, the company to
provide a crusher, and the rock so crushed to
be put on rails and made available for sale.
The crusher provided was capable only of
crushing three tons per hour, and as the com-
pany never did anything to put it in a condi-
tion to do more, the work, owing to the in-
capacity of the crusher, had to be stopped.
The plaintiff claimed damages : — Held, that
1369
SALE OF GOODS.
1870
as it appeared from the written contract that
both parties had agreed that something should
be done which could not effectually be done
unless both concurred in doing it, although
there were not express words to that effect in
the contract, it must be construed as meaning
that each party had agreed to do all that was
necessary to be done on his part for the carry-
ing out of the work. The defendants had
failed to provide an adequate crusher, and had
therefore failed to carry out their part of the
contract. Mackay v. Dick (6 App. Cas. 2.51)
followed. Kleinert v. Abbosso Gold Mining
Co., 58 S. J. 45— P. C.
G. RIGHTS OF UNPAID VENDOR.
1. Lien.
See also Vol XII. 592, 1402.
Assent to Sub-sale.] — The plaintiffs, through
one T. who was acting for them in the matter,
bought three old boilers, which belonged to
and were in the possession of a paper com-
pany. While the boilers still remained on the
premises of the paper company T. sold them
to H. for 601., on the terms that 20/. should be
paid before the removal of the first boiler and
the balance of 40/. by December, 1909 ; and
in October, 1909, T., by letter, informed the
paper company of the sale to H. Subse-
quently H. sold the boilers, which still physi-
cally were in the paper company's possession,
to the defendants, and paid 10/. on account
to T., but paid no more. There was no
acknowledgment by the paper company to H.
that they held the boilers on his behalf : —
Held, that the plaintiffs were not precluded
from setting up their right of lien as unpaid
sellers by the fact that they had through T.
informed the paper company of the sale to
H. Poulton V. Ayiglo-.imerican Oil Co.,
27 T. L. R. 216— C. A.
Delivery Order — Document of Title — De-
livery Order Created and Issued by Owner of
Goods — Y/hether a "transfer" — Delivery
Order not for Specific Goods.] — A delivery
order was given by the defendants to F. for
2,640 bags of mowra seed, which formed part
of a consignment of 6,400 bags. F. gave the
defendants a cheque therefor and indorsed the
delivery order to the plaintiffs, who took it in
good faith and for valuable consideration. F.'s
cheque having been dishonoured, the defen-
dants refused to give delivery of the seed to
the plaintiffs : — Held, first, that the delivery
order was a document of title to the goods
which have been " transferred " by the defen-
dants to F. within the meaning of section 10
of the Factors Act, 1889, and section 47 of
the Sale of Goods Act, 1893, and having been
transferred by F. to tlie plaintiffs, who took it
in good faith and for valniihle consideration,
the defendants' right of lien as unpaid vendors
was defeated; and secondly, that tlie delivery
order was valid notwitlistanding that it related
to goods which were not specific. Capital and
Counfie.<t Bank v. Warnner (1 Com. Cas. 314)
followed. .Ant. Jurgens Margarine jabrieken
V. Dreiifus ,f- Co., 83 L. J. K.B. 1344; [1914]
3 K.B. 40; 111 L. T. 248; 19 Com. Cas. 333—
Pickford, J.
Delivery by Instalments — Delivery of First
Instalments — Part Payment of Price thereof
— Vendor's Claim to Lien on Remainder of
Goods.] — The defendants contracted to l)iiy a
quantity of onions from the plaintiff. After
the arrival of the first shipment the defendants
paid certain sums on account thereof, and
the plaintiff refused to deliver the second and
third shipments until after the balance of the
price of the first shipment had been paid. In
an action by the plaintiff against the defendant
to recover the balance of the price of the first
shipment, the defendants counterclaimed for
damages for non-delivery of the remainder of
the goods : — Held, that the plaintiff was
entitled to recover on his claim, but that he
had no lien on the undelivered goods under
sections 39 and 42 of the Sale of Goods Act,
1893, as the property in them had not passed
to the defendants, and in the circumstances he
was not entitled to refuse delivery, and that
consequently the defendants were entitled to
recover on the counterclaim. Steinberger v.
.itkinson d- Co., 31 T. L. R. 110— Atkin, J.
2. Stoppage in Transitq.
See also Vol. XII. 606, 1403.
Duration of Transit — Constructive Delivery
by Railway Company to Carters.] — Under a
contract for the sale of two lifeboats the
vendors were bound to deliver the boats at the
purchasers' yard. The boats were dispatched
by the vendors by rail, and arrived at a rail-
way station adjacent to the purchasers' yard.
Two days later a firm of carters, who were
accustomed to cart goods consigned to the
purchasers from that station to their yard,
but who had no special instructions with
regard to these particular boats, obtained
delivery of one of the boats and carted it
to the purchasers' yard. The carters were not
able to take the other boat at the same time,
but were to return for it later in the day.
Before their return the railway company
learned that the purchasers had suspended pay-
ment, and on the carters' return they refused
to allow the second boat to be removed as they
had decided to retain it in virtue of a lien
to which they were entitled (under a general
contract with the purchasers) over all goods-
of the latter in their possession for any
balance due to the railway company. There-
after on the same day the vendors notified the
railway company to stop the boat in transitu.
Subsequently, however, the railway company
delivered the boat to the liquidator on the
purchasers' estate without the price having
been paid to the vendors. In an action by the
vendors against the railway company for
damages for delivering this boat in breach of
the notice of stoppage, the defenders main-
tained that the boat was not in transitu when
the notice was given in lespect that the
deliv(!ry of the first boat operated as con-
structive delivery of both, or otherwise that
the defenders ceased to hold the second boat
as carriers when they gave notice of their
intention to enforce their lien : — Held, that
the boat was in course of transit when the
notice was given, and that the defenders were
liable to the pursuers in damages. Median-
1371
SALE OF GOODS— SCHOOL.
1372
V. North-Easteru Railway. [1911] S. C. 1348
— Ct. of Sess.
Goods Purchased for Shipment Abroad —
Transit in Stages — Goods Intercepted by Pur-
chaser— Right of Unpaid Vendors.] — A pur-
chaser of goods cousigiicd tliem to a destina-
tion abroad, the transit being in several
stages. At the end of one of such stages he
intercepted the goods, and they thereafter
remained in the custody of the carriers, who
charged him warehouse rent in respect of
them. The unpaid vendors having claimed to
stop the goods in transitu, — Held, that the
original transit had been terminated by the
purchaser, and that the right of the vendors
to stop the goods in transitu was therefore
lost. Reddall v. Union Castle Mail Steam-
ship Co., 84 L. J. K.B. 360; 112 L. T. 910;
20 Com. Cas. 86— Bailhache, J.
SALMON.
See FISH AND FISHERY.
SALVAGE.
See SHIPPING.
SANITARY LAW.
See LOCAL GOVERNMENT;
METROPOLIS.
SCHOOL.
I. Masters of Schools. 1371.
II. Attend.\nck of Chii.drf.x. 1374.
III. Accidents to ScHoL.Ans. 1.378.
rv. Local Education Authority.
a. Duties and Liabilities, 1379.
h. Non-provided Schools. 1382
1. MASTERS OF SCHOOLS.
See also Vol. XII. 629. 1406.
Schoolmaster's Duty to Boys."' — The duty
of a schoolmaster in relation to his pupils is
that of a careful father. Shepherd v. Essex
County Council, 29 T. L. R. 303— Darling, J.
Contract of Teacher with Managers — Notice
of Determination by Local Education Authority
— Dismissal on " Educational grounds " —
Appeal to Board of Education — Jurisdiction.]
— A local education authority, acting upon
reports by Government inspectors of schools,
instructed the managers of a non-provided
elementary school to serve notice of dismissal
on the head master on educational grounds,
and the managers having refused to do so the
authority served the notice themselves. The
head master having applied for an injunction
to restrain the local authority from acting
upon the notice pending the result of an
appeal by the managers to the Board of Edu-
cation under the Education Act, 1902, s. 7,
sub-s. 3 : — Held, that, as the plaintiff did not
deny that his dismissal was on educational
grounds, but only questioned the sufficiency of
the grounds, there was no case for the inter-
ference of the Court, and he was not entitled
to an injunction. Mitchell v. East Sussex
County Council, 109 L. T. 778; 78 J. P. 41;
12 L. G. R. 1; 58 S. J. 66— C.A.
Resignation of Teacher — Salary during
Vacation.] — A teacher at the science, art, and
technical schools of the local education autho-
rity of a county borough had in January, 1909,
been appointed by the education committee
at a yearly salary payable, and paid, monthly;
and his engagement was subject to three
months' notice, which could be given at any
time by either party. The annual session of
the schools closed at the end of July. Owing
to a reorganisation of the staff the teacher was
asked to send in his resignation. He did so on
March 22, 1909, adding to the notice of resig-
nation that it was to take effect on August 31,
1909. The education committee, however,
gave a counter-notice to terminate his services
on July 31, 1909, when the holidays began : —
Held, that the teacher could not maintain an
action for a month's salary for the month
ending August 31. Hann v. Plymouth Cor-
poration. 9 L. G. R. 61— D.
Dismissal of Teacher — Teacher's Statutory
Right — Managers' Power of Dismissal —
" Grounds connected with the giving of reli-
gious instruction " — Teacher's Religious
Belief. 1 — Tlie managers of an elementary
Church of England school not provided by the
local education authority gave notice to a
school teacher to determine her employment
under section 7, sub-section 1 (c) of the
Education Act, 1902, " on grounds connected
with the giving of religious instruction in the
school." It was not alleged that any objection
could be taken to the religious instruction
given by the teacher, but it was alleged that
she had ceased to be a member of the Church
of England and was now a member of the
Wesleyan Church : — Held, that it was neces-
sary, in order that the dismissal might be
valid under the section, not merely that the
managers should think in their own minds that
the ground of dismissal was one connected
with the giving of religious instruction, but
that the ground must be in fact such a ground.
The alleged reason was not a ground connected
with the giving of religious instruction, and
the statute carefully avoids an enquiry into
137a
SCHOOL.
1374
the religious belief of the teacher on the occa-
sion of his appointment or dismissal. The
Court therefore granted an injunction restrain-
ing the managers of the school from acting
or purporting to act upon the notice purporting
to dismiss the teacher from her employment.
Smith V. Macnally, 81 L. J. Ch. 483; [1912]
1 Ch. 816; 106 L. T. 945; 76 J. P. 466;
10 L. G. R. 434 ; 56 S. J. 397 ; 28 T. L. R. 332
— Warrington, J
A teacher in an elementary non-provided
school has a statutory right to the position
which he has acquired under the Education
Act, 1902, unless and until the requirements
of that Act with regard to his dismissal have
been complied with. lb.
Head Master— Managers— Validity of Ap-
pointment— Foundation Manager — Declaration
of Membership of Church of England— Quali-
fication — Churchwarden.] — The managing
body of a non-provided elementary Church of
England school was constituted by a Final
Order under section 11 of the Education Act,
1902, which provided that the foundation
managers should possess certain qualifications,
and that no person should " be entitled to act
as a foundation manager " until he had signed
a declaration that he was a member of the
Church of England. At a date when the man-
aging body gave notice of dismissal to the head
master three foundation managers, though in
fact members of the Church of England, had
not signed any such declaration. It was also
alleged that these three persons had been
invalidly appointed by persons not qualified bo
to do, and that their appointment was void.
Schedule I. Part B, clause 3 of the Education
Act, 1902, provides that " the proceedings of a
body of managers shall not be invalidated . . .
by any defect in the election, appointment, or
qualification of any manager " -.—Held, first,
tliat the words of the Final Order were not an
absolute prohibition against any foundation
manager acting until he has signed the required
declaration; secondly, that Schedule I. B,
claii.se 3, precluded the raising in this action of
any objection as to the qualification of any
manager, whether in respect of this declara-
tion, or the validity of his appointment, or the
authority of those who appointed him. and that
such objections did not invalidate the proceed-
ings of the managing body. Meyers v.
Hemiell. 81 L. J. Ch. 794; [19121 2 Ch. 2.56;
ion L. T. 1016; 76 J. P. 321: 56 S. J. 538;
28 T. L. R. 424— Eve, J.
Semble, a non-resident parishioner is eligible,
but cannot be compelled to serve, as church-
warden, lb.
Power of Head Master to Expel Pupil— Ex-
pulsion of Pupil— Right of Action by Parent
of Pupil against Head Master.! — .\ scheme
fr;iiiied under the Endowed Schools Act, 18()9,
gave the head master of a schcxjl the power of
expelling boys for any adequate cause to be
judged by him. A boy having been expelled
from the school by the head master for what
the latter considered to be an adequate cause,
the boy's father sued the head master, claiming
damages for breach of implied contract : —
Held, that the action failed inasmuch as the
plaintiff was bound by the scheme and the
head master had bo7ia fide exercised the power
of expulsion given thereby. Wood v. Prest-
ivich, 104 L. T. 388; 75 J. P. 285; 55 S. J.
292 ; 27 T. 1^. R. 268— D.
Liability of Teacher— Order to Pupil to Poke
Fire in Teachers' Room — Negligent Act of
Teacher.] — A teacher in a provided elemen-
tary school not being well, and desiring some
hot refreshment, told one of her pupils, a girl
fourteen years of age, who was wearing a print
pinafore, to go to the teachers' private room
and poke the fire and draw out the damper.
The pupil did as she was told, and as she was
doing so her clothing was set on fire and she
was burned and injured. The pupil had passed
through courses of instruction in cookery and
laundry work, and her parents on going to
work had often left her to look after the house
and the fire and to take charge of the children.
The pupil brought an action for damages for
personal injuries against both the teacher and
the education authority : — Held, that the act
of the teacher in sending the pupil to render
the above-mentioned services was negligent,
and that she was liable; and, further, that the
negligent act of the teacher had been done
within the scope of her employment as a ser-
vant of the education authority, and that the
authority were also liable. Smith v. Martiv.
80 L. J. K.B. 1256; [1911] 2 K.B. 775;
105 L. T. 281; 75 J. P. 433; 9 L. G. R. 780;
55 S. J. 535; 27 T. L. R. 468— C.A.
Head Mistress's Right to Salary when
Absent through Illness.] — The plaintiff, a
mai-ried woman, was the head mistress of one
of the defendants' schools. By the terms of
her employment she was entitled in case of
absence through illness to full pay for a month,
after which time the defendants were entitled
to take into consideration the circumstances of
the case as to whether she was entitled to
anything further -.—Held, first, that " absence
through illness " was not confined to a period
of absence during actual illness, but included
the period of convalescence and also absence
occasioned by approaching illness ; but sec-
ondly, that the absence of the plaintiff for a
period of three months before her child was
born because in the defendants" view it was
not desirable that the elder school children
should see the plaintiff in her then condition,
was not absence through illness, and as such
absence was due to the defendants' request
they were liable for her salary during that
period Davies v. Ehbtv Vale Urban Council,
77 J. P. 533; 9 L. G. R. 1226; 27 T. L. R.
543— Channell, J.
II. ATTENDANCE OF CHILDREN.
See aho Vol. XII. 641, 1408.
By-law— Non-attendance of Child at School
— Reasonable Excuse.] — A by-law made by a
local education authority under section 74 of
the Elementary Education Act. 1870, as
amended by the Education Acts, 1876 to 1902.
provided that " the parent of every child of
not less than five years or more than fourteen
years shall cause such child to attend school
unless there be a reasonable excuse for non-
1375
SCHOOL.
1376
attendance." The by-laws also provided that
the following reason [inter alia) should be a
■' reasonable excuse " — namely, that the child
is under efi&cient instruction in some other
manner. On the prosecution of a parent for
not causing a child of thirteen to attend school,
it was proved that the child, who had attended
Lamphej' Council School, but had been re-
moved owing to the punishment inflicted on
the child, was being educated by a private
teacher. The Justices dismissed the summons,
holding as a fact that the education the child
was receiving was efficient, the list of subjects
taught by the private teacher being in their
opinion almost the same as those taught at
Lamphey School -.—Held, that the Justices
were entitled to find as a fact that the educa-
tion the child was receiving was efficient,
without deciding that it was as efficient as the
child would have received in a public elemen-
tary school, or without regard to the standard
of education (if any) corresponding to the age
of the child prescribed by the minutes of
the Board of Education. Bevan v. Shears,
80 L. J. K.B. 1325; [1911] 2 K.B. 936;
105 L. T. 795 ; 75 J. P. 478 ; 9 L. G. E. 1066 ;
27 T. L. E. 516— D.
Distance of School from Child's Resi-
dence— "Nearest road."] — A by-law made
under the Elementary Education Acts provided
that the parent of every child of not less than
five, nor more than fourteen years of age,
should cause such child to attend school unless
there should be a reasonable excuse for non-
attendance. It further enumerated certain
" reasonable excuses," one of which was that
there was no public elementary school open
which the child could attend " within three
miles, measured according to the nearest road,
from the residence of such child " : — Held,
that the expression " nearest road " in the
by-law was not confined to a highway or road
along which traffic could pass, but included
any route or track by which persons could get
from place to place. Hares v. Curtin, 82 L. J.
K.B. 707: [1913] 2 K.B. 328; 108 L. T. 974;
23 Cox C.C. 411— D.
Yerminous Condition of Child.] — The fact
that school authorities have excluded from
school a child by reason of its verminous con-
dition— such condition being capable of remedy,
by simple means — does not constitute a reason-
able excuse for the non-attendance of such
child at the school. Walker v. Cummings,
107 L. T. 304 ; 76 J. P. 375 ; 10 L. G. E. 728 ;
23 Cox C.C. 157 ; 28 T. L. E. 442— D.
Child not Sent to School on Account of
Yerminous Condition of other Children.^ —
Certain children under the care of the appel-
lant were not sent to school by her on the
ground that certain of the other children at the
school had been suffering from ringworm and
that another child was suffering from verminous
head. In proceedings against her for failing
to send the children to school she tendered the
evidence of a doctor to shew the alleged dirty
and verminous condition of children at the
school, but the Justices refused to hear such
evidence, and convicted the appellant : — Held.
that the Justices ought to have heard the evi-
dence of the doctor, and that the case must be
remitted to them to hear it. Symes V. Brown,
109 L. T. 232 : 77 J. P. 345 ; 11 L. G. E. 1171 ;
23 Cox C.C. 519; 29 T. L. E. 473— D.
Compulsory Attendance — Public Elementary
School — Instruction in Cookery.] — The respon-
dent's daughter was selected by the local
education authority for special instruction in
cookery. There being no facilities for teaching
cookery in the L. school, which she ordinarily
attended, she was required to attend a cookery
centre at F. school, which was less than two
miles from her residence. On a day when to
his knowledge she was so required to attend
the cookery centre, the respondent sent his
child to L. school, to which she was refused
admission. He was charged with having
neglected to cause her to attend school on that
day contrary to the by-laws of the local educa-
tion authority : — Held, that by reason of the
above facts and the provisions of sections 7
(sub-section 4) and 97 of the Elementary
Education Act, 1870, and the Code, instruction
in cookery was instruction in elementary
education in the case of the respondent's child,
and compulsory, and that the cookery centre
at F. school was part of the L. school for in-
struction in that subject, and that the respon-
dent had neglected to cause his child to attend
school accordingly. Bunt v. Kent, 83 L. J.
K.B. 343; [1914] 1 K.B. 207; 110 L. T. 72;
78 J. P. 39; 12 L. G. E. 34; 23 Cox C.C. 751;
30 T. L. E. 77— D.
Duty of Parent to Cause Child to Attend
School — Neglect of Duty by Parent — Reason-
able Excuse — Beneficial Employment.] — A by-
law made by a local education authority under
section 74 of the Elementary Education Act,
1870, for the purpose of requiring parents to
cause their children to attend school, con-
tained a proviso exempting a child, qualified
in certain other respects, from attendance if
the child was shewn to the satisfaction of the
local education authority to be in beneficial
employment. On the hearing of an informa-
tion preferred by the local education authority
under the by-law against a parent for not
causing his child to attend school it was proved
that the child was qualified in other respects
for exemption under the by-law, and the parent
stated that the child was in beneficial employ-
ment. After hearing the evidence the Justices
dismissed the information on the ground that
the local education authority had failed to
shew that the child was not in beneficial
employment, and that in their opinion the
child was beneficially employed : — Held, that
the question whether the child was or was not
in beneficial employment was solely for the
local education authority and could not be
decided by the Justices, the onus of proof of
such beneficial employment being on the
parent of the child. Hollow ay v. Crow,
80 L. J. K.B. 153; [1911] 1 K.B. 686;
104 L. T 73; 75 J. P. 77 : 9 L. G. E. 89;
27 T. L. R. 140— D.
Evidence of Insufficiency of Instruction
Provided at Private School.] — Upon the hear-
ing of a school attendance summons under
section 11 of the Elementary Education Act,
1377
SCHOOL.
1378
1876, against the parent of a child who was
attending a private school, evidence was ad-
mitted that the school consisted of a single
room in close i:)roximity to a factory, the noise
of which was audible in the room ; that the
equipment of the school was not efficient or in
accordance with the modern requirements of
the Board of Education ; that the ventilation
was inadequate, and that there was no play-
ground. There was also evidence that the
children had been examined by an inspector of
schools in reading and writing (including com-
position) and arithmetic, that the child in
question was capable of receiving elementary
instruction properly imparted, and had made
little or no progress during the two years since
she last attended a public elementary school :
— Held, that, assuming the first-mentioned
evidence as to the equipment, &c., of the school
to have been irrelevant, the Court would not
interfere with the finding of the magistrate ;
that the child was not being provided with
efficient elementary instruction, as it appeared
that he had applied his mind to that ques-
tion, and there was nothing to shew that his
finding was influenced by the irrelevant
matter ; and the attendance order made by the
magistrate was accordingly confirmed. Shiers
V. Stevenson, 105 L. T. 522; 75 J. P. 441;
9 L. G. E. 1137— D.
Non-compliance — Summons Adjourned — EyI-
dence that Education of Children Inefficient
when Summons Finally Heard.] — The parent
of two children was summoned under section 12
of the Elementary Education Act, 1876, for
non-compliance with an attendance order.
The summonses were first heard on Septem-
ber 10, 1910, and were then adjourned for
six months. On March 11, 1911, the parent
was summoned under section 24 of the Ele-
mentary Education Act, 1873, to produce
the children, but he did not do so, and the
summonses were further adjourned until
March 25. A week before that date the
children were examined by the Director of
Education, and were found by him to have
been inefficiently educated. The evidence of
this examination was admitted by the Justices
at the hearing on March 25, on the ground
that, as the education of the children was
defective at that date, the inference could
be drawn that it was defective when the
summons was issued. The Justices convicted
the parent : — Held, first, that the evidence
as to the result of the examination of the
children in March, 1911, was relevant, and
in the circumstances was properly admitted ;
and secondly, that, although different Justices
were sitting on the various days when the
summonses were heard, the proceedings were
regular, inasmuch as there was a complete
re-hearing on each occasion. Rex v. Walton;
Button, Ex parte, 9 L. G. K. 1231; 75 J. P.
558; 27 T. T^. U. .569— D.
Defective or Epileptic Child — Effect of
Medical Certificate.] — A medical certificate
that a child is mentally defective is sufficient
evidence of that fact within section 6 of the
Education (Administrative Provisions) Act,
1909, and in the absence of evidence by the
child's parent that the certificate is incorrect.
or cross-examination of the medical practi-
tioner giving the certificate, the Court must
act upon the certificate and is not entitled by
putting questions to form its own opinion as
to the capacity of the child. Rex v. de Grey ;
Fitzgerald, Ex parte, 109 L. T. 871; 77 J. P.
463; 23 Cox C.C. 657— D.
Period of Education — Child Defective but
Capable of Earning Living — Obligation of
Parent — Reasonable Excuse.] — Section 11 of
the Elementary Education (Defective and
Epileptic) Children Act, 1899, enacts that a
defective or epileptic boy or girl shall be
deemed to be a child till the age of 16 years,
and the period of compulsory education shall
in the case of such a child extend to sixteen
years, and such child shall not be entitled to
total or partial exemption from the obligation
to attend school : — Held, that the parent of a
defective boy of fourteen years of age sum-
moned for disobedience to an order, made when
the boy was fourteen, that he should still
attend a defective children's school till he was
sixteen, was bound to obey the order, notwith-
standing the circumstance that the boy had
been certified by a factory surgeon as fit for
work and was working as a piecer at a cotton
mill for wages. Rennie v. Boardman , 111 L. T.
713; 78 J. P. 420; 12 L. G. R. 1093— D.
The parent's excuses (1) that it had not
been previously ascertained, in accordance with
section 1 of the Act and before the boy had
attained the age of fourteen years, that he
was, by reason of mental or physical defect,
incapable of receiving instruction at the
ordinary public elementary schools, (2) that
the parent had only consented to the boy
attending the defective children's school until
he was fourteen years of age, and (3) that at
the date of the order the boy was living apart
from him at a place outside the jurisdiction
of the education authority who had obtained it
were not reasonable excuses. 76.
III. ACCIDENTS TO SCHOLARS.
See also Vol. XII. 635, 1411.
Conveyance of Children to and from School
— Accident to Child — Vehicle Provided vfith
Consent of Education Authority — Liability of
Education Authority.]— The school attendance
officer of an education authority entered, with
the consent of the authority, into a contract
with a jobmaster for the conveyance of certain
children to and from school. The appellant
attended the school, but was not one of the
children entitled to be conveyed to or from
the school. She was nevertheless allowed by
the attendance officer to be carried home from
school in the vehicle, and while being so con-
veyed she sustained personal injuries, owing,
as the jury found, to the negligence of the
driver and the non-provision of a conductor
for the vehicle. The jury also found that the
appellant was carried by consent of the educa-
tion authority : — Held, that the education
authority were liable to the appellant on the
ground tha't having provided a vehicle it was
their duty to see to the safety of the children
using it. Shrimpton v. Hertfordshire County
Council, 104 L. T. 145; 75 J. P. 201 ; 9L. G. R.
44
1379
SCHOOL.
1380
397; 55 S. J. 270; 27 T. L. R. 251— H.L. (E.) ,
And see Jackson v. London County Council, \
ante, col. 1069. :
Injury to Pupil at Technical Institute bj
Circular Saw.] — A local education authority
provided and maintained a technical institute
for the instruction of pupils at evening classes
under a competent instructor, whose permission
was required to be obtained by the pupils prior
to the use by them of mechanical appliances.
A pupil, nineteen years of age, with the per-
mission of the instructor used a circular saw
driven by electric power, and in so doing
injured his hand. He had been shewn by the
instructor how to use the saw, and had been
in the habit of using it, and knew that it was
dangerous. It was admitted that there was
no recognised method of guarding or protecting
such saws : — Held, that it was not the duty of
the authority to provide a guard or protection
for the saw, and that they were not guilty of
negligence so as to be liable for the injury.
Smerkinich v. Newport Corporation, 76 J. P.
454 ; 10 L. G. R. 9-59— D.
" Volenti non fit injuria."! — Apart from any
question of negligence, inasmuch as the pupil
knew and appreciated the risk he incurred in
working the circular saw, and nevertheless
asked for and obtained the permission of the
instructor to use it, the doctrine Volenti non fit
injuria was applicable. lb.
Negligent Act of Teacher.] — A girl of
thirteen was a pupil at a school of an
education authority and under the care and
instruction of one of the teachers. This teacher
sent her to poke the fire and draw the damper
in a room in which she and other teachers
had their meals. In carrying out the teacher's
order the girl's clothes caught fire and she was
seriously injured : — Held, in an action for
damages for negligence against the teacher
and the education authority in which the jury
had found a verdict for the plaintiff, that the
teacher was liable in damages, and, further,
that the negligent act of the teacher had been
done within the scope of her employment as
a servant of the education authority, who were
therefore also liable. Smith v. Martin,
80 L. J. K.B. 1256; [1911] 2 K.B. 775;
105 L. T. 281; 9 L. G. R. 780; 75 J. P. 433;
55 S. J. 535; 27 T. L. R. 468— C. A.
IV. LOCAL EDUCATION AUTHORITY.
See also Vol. XII. 1415.
a. Duties and Liabilities.
Provision of Furniture and School Apparatus
— Efiiciency of School.] — Two new schools
were provided by persons other than the local
education authority as public elementary
schools under the provisions of section 8 of
the Education Act, 1902, and were approved
as necessary by the Board of Education. The
promoters of one school supplied that school
with furniture which the local education
authority regarded as unsuitable and which
was subsequently removed, while no furniture
at all was supplied by the promoters to the
other school. The local education authority
supplied both schools with the desks and cup-
boards and other school furniture necessary to
enable the schools to be carried on as public
elementary schools. The sums paid for this
purpose were surcharged by the Local Govern-
ment Board auditor : — Held (Sir Samuel
Evans, P., dissenting), that the obligation
imposed upon a local education authority by
section 7, sub-section 1 of the Education Act,
1902. to " maintain and keep efficient all public
elementary schools within their area " included
the obligation of providing these schools with
desks, cupboards, and other school furniture
necessary to enable them to be carried on as
public elementary schools, inasmuch as the
only duty imposed on the persons who provided
the schools was to provide the school building,
and not the necessary equipment. Rex v.
Easton; Oulton, Ex parte, 82 L. J. K.B. 618:
[1913] 2 K.B. 60 ; 108 L. T. 471 ; 77 .J. P. 177 ;
11 L. G. R. 279; 57 S. J. 225; 29 T. L. R
200— C. A.
Decision of the Divisional Court (81 L. J.
K.B. 828; [1912] 2 K.B. 161) affirmed. lb.
National School — Site for School — General
Educational Purpose — Education in Principles
of Established Church — General Intention
Coupled with Special Mode — Failure of Special
Mode — Cy-prfes Doctrine — Scheme — Unde-
nominational Education.] — A site conveyed
under the School Sites Act, 1841, may be used
for the secular education of poor persons as
well as for their education in religious and
useful knowledge. But the Act does not per-
mit the dedication of the land for educational
purposes in the sense that the site and the
buildings erected thereon may be let at a rack
rent and the rental value applied to those
educational purposes : — So held by Cozens-
Hardy, M.R., and Fletcher Moulton, L.J.
(Buckley, L.J., dissenting). Att.-Gen. v.
Price, 81 L. J. Ch. 317; [1912] 1 Ch. 667;
106 L. T. 694; 76 J. P. 209; 10 L. G. R. 416;
28 T. L. R. 283— C.A.
Appeal compromised. Form of Scheme
approved. Price v. Att.-Gen., 83 L. J. Ch.
415; [1914] A.C. 20; 109 L. T. 757; 78 J. P.
153; 12 L. G. R. 85— H.L. (E.)
By deed dated December 31, 1867, a donor
conveyed a site under the School Sites Act,
1841. to trustees to be used for a school " for
the education of children and adults or children
only of the labouring, manufacturing, and
other poorer classes " in a certain district, and
directed that the school to be erected on the
site should be conducted in connection with
the National Society as a Church of England
School. School buildings were erected on the
site and the trustees carried on a Church
school there for many years. Ultimately they
were compelled to close the school for financial
reasons. Swinfen Eady, J., having directed
that a scheme should be settled for the manage-
ment and regulation of the charity, the
Attorney-General submitted a scheme under
1381
SCHOOL.
1382
which, upon the failure of the trustees to
carry on a Church school on the site, the pro-
perty might be used by the local education
authority for undenominational education upon
the terms that the authority paid for all wear
and tear caused by their use of the school and
subscribed to its maintenance. The trustees
contended that this provision was directly con-
trary to the terms of the deed, and that they
should rather be allowed to let the school
buildings at a rack rent and apply the rent for
Church educational purposes : — Held, by the
Court of Appeal (Buckley, L.J., dissenting),
that the grantor had shewn a general under-
lying educational intention coupled with a
special mode of giving effect to this intention
by means of a Church school, and that, the
special mode having failed, the Court ought
to apply the cy-pres doctrine by settling a
scheme giving effect to the general educational
intention, and which would therefore authorise
the use of the school for undenominational
education. lb.
Medical Operation — Education Authority —
Extent of Liability.] — Where an education
authority under the Education Acts, 1907 and
1909, enters into an agreement with a medical
association in regard to the performance of
operations on school children, the education
authority are not liable for the negligence (if
any) of the persons performing the operation,
provided that they engage competent profes-
sional persons to perform it. Davis v. London
County Council, 30 T. L. E. 275— Lush, J.
Negligent Act of Teacher — Liability of
Local Education Authority.] — A teacher
in a provided elementary school not being
well, and desiring some hot refreshment,
told one of her pupils, a girl fourteen years of
age, who was wearing a print pinafore, to go
to the teachers' private room and poke the
fire and draw out the damper. The pupil did
as she was told, and as she was doing so her
clothing was set on fire and she was burned
and injured. The pupil had passed through
courses of instruction in cookery and laundry
work, and her parents on going to work had
often left her to look after the house and the
fire and to take charge of the children. The
pupil brought an action for damages for per-
sonal injuries against both the teacher and
the education authority -.—Held, that the act
of the teacher in sending the pupil to render
the above-mentioned services was negligent,
and that she was liable ; and, further, that the
negligent act of the teacher had been done
within the scope of her employment as a ser-
vant of the education authority, and that the
author.ty were also liable. Smith v. Martin,
80 L. J. K.B. 1256; [1911] 2 K.B. 775;
105 L. T. 281; 75 J. P. 433; 9 L. G. K. 780;
55 S. J. 535 ; 27 T. L. E. 468-C.A.
As to Teachers and Children.] — See 1.
Masters of Schools, and 2. Accidents to
Scholars, ante.
b. Non-provided Schools.
See also Vol. XII. 1118.
"Maintain and keep efficient" — Salaries of
Teachers — Local Education Authority — Dis-
crimination between Provided and Non-
provided Schools — Jurisdiction of Board of
Education.] — It is the duty of a, local educa-
tion authority to " maintain and keep efficient "
all public elementary schools in their district,
subject, in the case of non-provided schools,
to the conditions specified in section 7, sub-
section 1 of the Education Act, 1902, and to
the jurisdiction of the Board of Education to
determine finally any question arising between
the local education authority and the
managers of a non-provided school. The duty
to " maintain and keep efficient " a non-
provided school is such a question, and lies
within the jurisdiction of the Board. The
Board is in the nature of an arbitral tribunal,
and the Courts of law have no jurisdiction to
hear appeals from its decisions, whether of
law or of fact. The Board have no jurisdiction
to decide abstract questions of law, but only
to determine actual concrete differences as they
may arise between the local authority and the
managers. But if the Board fail to act
judicially, or to determine the question which
they are required by the Act to determine, then
there is a remedy by mandamus or certiorari.
Board of Education v. Rice, 80 L. J. K.B.
796; [1911] A.C. 179; 104 L. T. 689; 75 J. P.
393 ; 9 L. G. E. 652 ; 55 S. J. 440 ; 27 T. L. E.
378— H.L. (E.)
As a matter of law it is not true to say
that a local authority are not entitled to
differentiate between schools in respect of
the scale of salaries. But if there be such
discrimination, it is cogent evidence, in the
absence of special circumstances, of an
intention to starve the less favoured
schools, and the Board must scrutinise such
differentiation so as to prevent any lowering
of efficiency in the schools for which less is
done. lb.
Managers — Local Education Authority.] —
The managers in a non-provided school under
the Education Act, 1902, are an independent
body, and all that is given to the local educa-
tion authority is a defined statutory power
of interference with them. Although the
managers can call on the authority to maintain
the school and keep it efficient, the obligation
of the authority carries with it no full power
of management. The relationship between the
two bodies is not that of principal and agent,
but one of co-ordinate authorities, between
which powers are distributed. Gillow v.
Durliam County Council, 82 L. J. K.B. 206;
[1913] A.C. 54; 107 L. T. 689; 77 J. P. 105;
11 L. G. E. 1; 57 S. J. 76; 29 T. L. E. 76—
H.L. (E.)
The managers of a non-provided public
elementary school are, under sections 7, sub-
section 7 of the Education Act, 1902, entitled
to appoint a caretaker and cleaner of the school
and have their salaries paid by the local educa-
tion authority. lb.
Decision of the Court of Appeal (81 L. J.
K.B. 1 ; [1911] 2 K.B. 1074) reversed and that
1383
SCHOOL—SCOTLAND.
1384
of Hamilton, J. (80 L. J. X.B. 380; [1911]
1 K.B. 222), restored. lb.
SCOTLAND.
See also Vol. XII. 1425.
Education Department — Powers of — Right
to Reverse Powers through Vice-president.] —
The powers conferred upon the Scotch Educa-
tion Department by section 21 of the Education
(Scotland) Act, 1908, relating to the dismissal
of school teachers by school boards may, in
accordance with the settled practice of the
Department, be exercised by the Vice-president
without the knowledge or concurrence of the
other members of the Department. Dalziel
School Board v. Scotch Education Department,
[1915] S. C. 234— Ct. of Sess.
Statement on Record by Government De-
partment.]— A statement made on record by
the Education Department, and indorsed by
their counsel at the Bar, that a decision of
the Department was the decision of the Vice-
president, fell to be accepted by the Court
without proof, in the absence of a specific
averment to the contrary by the party
challenging the decision. lb.
Heritable Office — Principal Usher in Scot-
land— Fees from Grantees of Dignities of the
United Kingdom.] — A title, dignity, or honour
of the United Kingdom, created and conferred
since 1707, — Held, not to be a title, dignity,
or honour within the meaning of the charters
and patents granted to the predecessors of
the respondents as sole and principal ushers
in Scotland, or within the statutes of the
Scottish Parliament ; and therefore that the
respondents were not entitled to exact fees
in respect of the creation of titles and digni-
ties of the United Kingdom. Lord Advocate
V. Walker Trustees, [1912] A.C. 95 ; 106 L. T.
194; 28 T. L. K. 101— H.L. (Sc.)
Land — Real Burden — Building Restriction
— Construction — Validity.] — Land was con-
veyed to J. C. W., the respondent's pre-
decessor in title, by a deed which contained
the following clause : " under the declaration
that it shall not be lawful to the said J. C. W.
or his foresaids to sell or feu any part of the
ground occupied as the lawn between the
ground feued by me to W. M." — the appel-
lant's predecessor in title — " and the present
mansion house of E. Park excepting " under
certain conditions as to building on the land
therein set out, " which restriction shall also
be a real burden affecting the said lands, and
shall operate as a servitude in favour of the
said W. M. and his foresaids in all time
coming " : — Held, that the clause did not
operate to prevent any singular successor from
building as he pleased on any part of the
ground, and that in any case it was not
sufficiently precise to create a real burden.
Anderson v. Dickie, 84 L. J. P.O. 219—
H.L. (Sc.)
Decision of the Court of Session in Scotland
([1914] S. C. 706) affirmed. lb.
Succession — Provision to Widow of "life
rent and enjoyment " of House — Life Rent or
Occupancy — Incidence of Burdens.] — A testa-
tor by his will directed his trustees to give to his
widow the "life rent, use, and enjoyment " of
his house, to pay her an annuity, to set aside
a certain sum to provide for the same, to
distribute the residue of his estate between
his widow and his brothers, and, on the death
of his widow, to divide the price of the house
and the annuity fund, with any surplus
revenue accrued thereon, among his brothers.
On the death of the testator the widow entered
into possession of the house : — Held, that the
widow had a " life rent " and not a mere
occupancy, and was liable to pay all rates and
burdens on the property falling on the pro-
prietor, and could not claim a right to be
repaid by the trustees out of the testator's
estate. Cathcart's Trustees v. Allardice
(2 F. 326) disapproved. Mackenzie v.
Johnstone, [1912] A.C. 748; 107 L. T. 473—
H.L. (Sc.)
Street — Private Street — " Obstruction " —
I Road Belonging to Railway Company Subject
to Public Right — " Road forming part of any
railway."] — By the Burgh Police (Scotland)
Act, 1892, s. 4, sub-s. 31, " ' Street ' shall in-
clude any road, highway, . . . thoroughfare,
and public passage or other place within the
burgh used either by carts or foot passengers,
and not being or forming part of any harbour,
railway, or canal station. . . ." By the
Burgh Police (Scotland) Act, 1903, which
refers to the Burgh Police Act of 1892 as the
" principal Act," section 103, sub-section 6,
" ' Private street ' shall, in the principal Act
and in this Act, mean any street other than
a public street." By section 104, sub-
section 2 (d), " . . . Where any private street
or part of such street has not . . . been suffi-
ciently levelled, paved . . . and flagged to the
satisfaction of the council, it shall be lawful
for the council to cause any such street or part
thereof ... to be freed from obstructions and
to be properly levelled, paved ..." In an
action by the appellants, a railway company,
against the respondents for a declaration that
a strip of ground acquired by the company
was not subject to any of the provisions of the
Burgh Police (Scotland) Acts, 1892 to 1903,
it appeared that the ground formed half of a
road or street and had been purchased in 1889
by the company for " extraordinary pur-
poses " under section 38 of the Railways
Clauses Consolidation (Scotland) Act, 1845.
The company made no use of the ground until
1908, and it was never metalled or made up
as a road, but it was admitted that it had
been used by the public as a right of way
for all purposes since the year 1841. In 1908
the company laid down a double line of rails
on the ground which were an obstruction to
the public right of way : — Held, that in the
circumstances the road could not be taken to
be " part of a railway " within the meaning
of section 4 of the Act of 1892, but must be
1385
SCOTLAND— SEA AND SEASHOEE.
1386
regarded as a " private street," and the rails
were liable to be removed as " obstructions "
within the meaning of section 104 of the Act
of 1903. Glasgow and South-Western Rail-
way V. Ayr (Provost), [1912] A.C. 520—
H.L. (Sc.)
Superior and Vassal — Railway — Lands
Purchased by Railway Company under Com-
pulsory Powers — Statutory Title — Conveyance
not Registered within Six Months — Right of
Superior to Demand Casualty.] — A company
acquiring land under the provisions of the
Lands Clauses Consolidation (Scotland) Act,
1845, holds by a statutory tenure, independent
of the immediate superior of the vendor ; but
where the conveyance is not in the form
prescribed by the Act, and has not been regis-
tered within sixty days from the last date
thereof, in accordance with section 80 of the
Act, it operates only as a common law dis-
position, and the company may be liable to pay
a casualty at the suit of the superior. The
date of delivery is not the last date of the
conveyance within the meaning of the section.
Caledonian Railway v. Heriot's Trust
(Governors), 84 L. J. P.C. 171; [1915] A.C.
1046— H.L. (Sc.)
Judgment of the Court of Session ([1914]
S. C. 601) af&rmed on different grounds. lb.
Trust — Liability of Trustees — Breach of
Trust — Action by Assumed Trustees to Recover
Loss to Trust Estate Caused by Negligence of
Original Trustee — Mora — Contributory Negli-
gence— Right of Pursuers to Represent Bene-
ficiaries— Interest — Rate of Interest.] — A
testator, who died in 1858, by his trust dis-
position and settlement gave to his son, on
his attaining the age of twenty-five, an option
to purchase his dwelling house. In 1870 the
son, who acted as agent in the trust, being
then about to attain the age of twenty-five,
announced to the trustees his intention to
exercise this option, and the trustees signed
and delivered to him a disposition of the
house in his favour, which was duly recorded.
The trustees took no steps either in 1870 or
for seventeen years afterwards to obtain pay-
ment of the purchase money, and the money
never was paid. In 1887, the testator's
widow being then the sole surviving trustee,
the pursuers were assumed as trustees, and
they endeavoured to make the son account for
the trust estate, but subsequently ceased their
efforts owing to the refusal of the widow to
allow her son to be sued. In 1902, on the
death of the widow, the assumed trustees
brought an action of accounting against the
son, but the action proved abortive by reason
of his bankruptcy and death. Between 1887
and 1902 the son was in a position to make
good the purchase money. In 1909 tlie
assumed trustees brought an action against
the beneficiaries of a deceased trustee to
recover the purchase money alleged to have
been lost to the trust estate through his negli-
gence as trustee. The defenders pleaded mora
as a bar to the action : — Held, that the plea
of mora was not sustainable against the pur-
suers suing as trustees on behalf of the
beneficiaries, and that the defenders were
jointly and severally liable, to the extent of
which they were respectively lucrati from the
estate of the deceased trustee, for the price
of the house, with interest thereon at the rate
of 3J per cent, per annum from the death of
the widow. Schulze v. Tod or Lee\s Trustees
V. Dun, [1913] A.C. 213; [1913] S. C.
(H.L.) 12— H.L. (Sc.)
Will — Holograph Letter — Preference
between Bequests Expressed — General Direc-
tion to Pay Debts — Legacy of Capital Sum.]
— A testator by a holograph letter, which by
the law of Scotland is a testamentary writing,
instructed his solicitor to pay to the appellant
A., a single lady, on the first of each month
after his death, the sum of 121. 10s., being
at the rate of 150L a year. " But in lieu of
this I would prefer that as soon as you con-
veniently can, that the sum of 3,000L should
be taken from my life insurance funds and
paid over to her." The testator's trust dis-
position contained a general direction for
payment of debts, and the insurance funds,
after paying off the charges upon them,
amounted to 1,900L : — Held, first, that the
trustees were bound to pay over the capital
sum of 3,000/. to A., and had no option to
decide whether she was to receive the monthly
allowance or the capital sum ; and secondly,
that the direction that 3,0001. should be taken
from the testator's insurance funds and paid
to A. in the circumstances marked the legacy
as demonstrative and not specific. Dawson
V. Reid, 113 L. T. 52— H.L. (Sc.)
SEA AND SEASHORE.
See also Vol. XII. 6.56, 14.39.
Accretions Caused by Recession of Line of
Ordinary High "Water — Ownership of.] — The
decision of tlie House of Lords in Rex v.
Yarborough (2 Bligh, N.S. 147) conclusively
determines that where land is added to the
seashore by the gradual and imperceptible
action of natural causes, the owner of the land
adjoining the accretions acquires in them a
good title against the Crown, notwithstanding
the existence of marks or bounds, or other
evidence by which the former, or a former,
line of ordinary high water can be ascertained.
The real question in every such case of accre-
tion is whether during the process of accretion
the progress of the accretion can be ascer-
tained. Att.-Gen. v. McCarthy, [1911]
2 Ir. R. 260— K.B. D.
Riparian Proprietor — Foreshore — Accretion
— Reclamation — Easement — Possession for
Less than Period of Prescription.] — Land
abutting on the seashore, though specifically
measured in title deeds, is not excluded from
the operation of the rule by which the incre-
ment caused by natural and gradual accretion
from the sea is added to riparian lands; but
where an addition to lands is caused artificially
by the execution of works of reclamation the
doctrine of natural accretion does not apply.
1387
SEA AND SEASHOEE— SET-OFF.
1388
Att.-Gen. for Nigeria v. Holt it Co.; Same v.
Maclver d Co., 84 L. J. P.O. 98; [1915]
A.C. 599; 112 L. T. 955— P. C.
Where works on the foreshore, intended to
protect the adjacent lands from the invasion
of the sea, have been carried out by the
occupier with the knowledge and assent of the
Crown, the foreshore rights originally attach-
ing to such land before the reclamation are
not thereby destroyed. There may be an ease-
ment to store goods on the land of another
person, but there can be no easement over a
tenement which the owner of the dominant
tenement claims as his own. A transfer of the
dominium of lands cannot be effected by
possession for a period short of the full requi-
site period of prescription, without the pre-
sumption of a lost grant. Ih.
Removing Shingle from Foreshore — Informa-
tion by Surveyor of District Council.] — An
information was laid under the Harbours Act,
1814, by the appellant " as surveyor for and
on behalf of the urban district council of
S." against the respondent for unlawfully
taking shingle from a portion of the shores
of the port from which, by an order of the
Board of Trade, the taking or removing of
shingle was prohibited. Section 21 of the
Harbours Act, 1814, gives one moiety of the
penalty to the Crown and the other to the
informer. The Justices being of opinion that
the district council could not, being a corpora-
tion, sue for the penalty as common informer,
dismissed the information as not well laid : —
Held, that the appellant was the party before
the Court as informer, and that the informa-
tion was well laid. Lake v. Smith, 106 L. T.
41; 10 L. G. E. 218; 76 J. P. 71; 22 Cox
C.C. 641— D.
Regulations as to Selling Articles on Fore-
shore.1 — See Cassell v. Jones, ante, col. 922.
Public Assemblages on Foreshore.] — See
Slee V. Meadows, ante, col. 923.
Alleged Nuisance by Seaside Encampment.]
—See Att.-Gen. v. Kerr, ante, col. 890.
SEAMAN.
■See SHIPPING.
SECURED CREDITOR.
See BANKRUPTCY.
SECURITY FOR COSTS.
Of Appeal.] — See Appeal.
Appeals from County Court.] — See County
COUBT.
In other Cases.] — See Practice.
SEDUCTION.
See MASTER AND SERVANT.
SEPARATION DEED.
See HUSBAND AND WIFE.
SEQUESTRATION.
See CONTEMPT OF COURT;
EXECUTION.
SERVANT.
See MASTER AND SERVANT ;
WORKMEN'S COMPENSATION.
SERVICE OF PROCESS.
See PRACTICE.
SESSIONS.
See JUSTICE OF THE PEACE.
SET-OFF.
Of Costs.] — See Costs.
Sale by Auction — Prior Agreement with
Auctioneer as to Disposal of Proceeds of Sale
— Subsequent Agreement by Seller with Pur-
chaser to Set off Price of Goods Purchased
against Debt — Refusal of Purchaser to Pay
Price to Auctioneer — Action by Auctioneer to
Recover Whole of Purchase Price — Equitable
Defence of Set-off — Right of Purchaser to
Surplus only of Total Amount Realised by
Sale.] — The plaintiffs, who were auctioneers,
were employed by F. to sell certain cattle for
him by auction. Prior to the sale F. had
given orders to certain of his creditors direct-
ing the plaintiffs to pay these creditors out
of the proceeds of the intended sale, and the
plaintiffs agreed to act upon these orders.
Pending the sale F. had also become indebted
to the plaintiffs for money lent and paid and
for services rendered upon the terms that they
should repay themselves out of the proceeds of
1389
SET-OFF— SETTLED LAND.
1390
the sale. The sale was held upon the condi-
tion {inter alia) that the price of any cattle
bought was to be paid to the plaintiffs.
Whilst the sale was proceeding an arrange-
ment was entered into between F. and the
defendant, to whom F. was indebted to a con-
siderable extent, that the price of any cattle
bought by the defendant might be set off
against F.'s debt to the defendant, but this
arrangement was not communicated to the
plaintiffs either during, or directly after, the
sale. The defendant bought a number of
cattle at the sale, the purchase price of which
exceeded the amount of F.'s debt to him, and
being known to the plaintiffs was allowed to
remove the cattle without having paid for
them. Excluding the amount of the defen-
dant's purchases, the plaintiffs received sufifi-
cient money to satisfy their lien for commission
and charges in respect of the sale, but not
sufficient to pay F.'s creditors or their own
debt; but, including the amount of the defen-
dant's purchases, the sale realised sufficient
to satisfy all claims, leaving a small surplus.
The defendant having refused to pay the
plaintiffs the price of the cattle which he had
bought, upon the ground that he was entitled
to rely on the arrangement with F. a8 to
set-off, the plaintiff brought an action to
recover the whole of the price of the cattle
bought by the defendant. Before action the
defendant tendered and subsequently paid to
the plaintiffs the difference between the
amount of F.'s debt to him and the price of
the cattle which he had bought : — Held, that
the defendant was not entitled, under the
circumstances, to set up as an equitable
defence to the plaintiffs' claim the arrange-
ment as to set-off made between him and F. ,
inasmuch as such arrangement could not
defeat the previous agreement between F. and
the plaintiffs as to the disposition of the pro-
ceeds of the sale, on the faith of which
agreement the plaintiffs had acted, and that
the defendant was only entitled to be paid by
the plaintiffs the surplus remaining after
deducting from the total amount realised by
the sale the debts owing to the other creditors,
as well as what was owing to the plaintiffs in
respect of F.'s debt to them and their com-
mission and charges for conducting the sale,
this surplus being the only amount which the
plaintiffs would have been bound to pay over
to F. Manley v. Berkett, 81 L. J. K.B. 1232 :
[1912] 2 K.B. 329— Bankes, J.
SETTLED LAND.
I. Settlemrnts. 1390.
II. Tenant for Life.
1. Who is OT has the Powers of, 1390.
2. Rights and Duties of, 1392.
in. Sales.
1. In General, 1392.
2. Heirlooms, 1394.
IV. Leases.
1. In General, 1395.
2. Mining Leases, 1396.
V. C'HAIIGES, 1398.
VI. Trustees, 1398.
VII. Capital Money.
1. What is, 1400.
2. Application and Investment of.
a. In General, 1401.
b. Improvements, 1403.
I. SETTLEMENTS.
See also Vol. XII. 721, 1446.
Will — Subsisting Annuities — Disentailing
Deed — Re-settlement. 1 — A testator who died
in 1892 devised certain freehold estates to the
use of his son A. for life, and from and after
the decease of A. to the use of his first and
other sons successively, according to their
respective seniorities in tail male with divers
remainders over. He also charged his settled
estates with the payment of certain annuities,
some of which were still subsisting at the
date of this summons. A. died in 1912, and
his eldest son B. thereupon became tenant in
tail in possession of the settled estates. In
April, 1914, B. executed a disentailing deed
which was duly enrolled, limiting the settled
estates to his own use in fee-simple. Some
days later he executed a settlement on his
marriage of a part of the estates originally
settled by the will to the use of himself for
life, with remainders over : — Held, that, not-
withstanding that there was no term limited
to secure the annuities under the will nor any
trust for their payment, the subsistence of the
annuities gave rise to a compound settlement
of the estates comprised in the re-settlement,
consisting of the will, the disentailing deed,
and the re-settlement. Trafford's Settled
Estates, In re, 84 L. J. Ch. 351; [1915]
1 Ch. 9 ; 112 L. T. 107— Warrington, J.
Ailesbury (Marquis) and Iveagh (Lord),
In re (62 L. J. Ch. 713; [1893] 2 Ch. 34.5),
and Phillimore, In re; Phillirnore v. Milnes
(73 L. J. Ch. 671; [1904] 2 Ch. 460), applied.
76.
II. TENANT FOR LIFE.
1. Who is or has the Powers of.
See also Vol. XII. 1453.
Trust for Accumulation of Income.] — A
testator devised his real estate to his trustees
to the use that they should receive the rents,
profits, and annual income thereof until A.
attained the age of twenty-seven years, paying
to A. thereout during such time the annual
sum of 400Z., and to accumulate the surplus,
which should devolve upon the same uses as
the property itself, and, subject thereto, to tho
use of A. during his life, with remainder over.
A. had attained the age of twenty-four years
at the date of tlie testator's death in 1910 :^
Held, that A. was a tenant for life, or a
person having the powers of a tenant for life,
of the estate within the meaning of section 58,
sub-section 1 (vi.) of the Settled Land Act,
1882. Llewellyn, In re; Lleuellyn v.
1391
SETTLED LAND.
1392
Llewellyn, 80 L. J. Ch. 259; [1911] 1 Ch.
451; 104 L. T. 279; 55 S. J. 254— Joyce, J.
Martyn, In re; Coode v. Martyn (69 L. J.
Ch. 733), and Woodhouse, In re; Annesley
V. Woodhouse ([1898] 1 Ir. R. 69), followed.
Strangways, In re; Hickley v. Strangways
(56 L. J. Ch. 195; 34 Ch. D. 423), distin-
guished, lb.
Trust to Pay Costs of Management out of
Rents — Trust to Pay Residue of Income to
Wife during Widowhood — "Forfeiture."] — A
testator devised his real estate upon trust out
of the rents and profits and until the death or
marriage again of his wife to pay certain
annuities and the expenses of management of
his estate, and upon trust to pay the ultimate
residue of the rents and profits to his wife
during widowhood : — Held, that the widow
was a person having the powers of a tenant
for life under the Settled Land Act, 1882,
8. 58, sub-s. 1, clause ix. Semble, she was also
within clause vi. of the same sub-section.
Sumner's Settled Estates, In re, 80 L. J.
Ch. 257; [1911] 1 Ch. 315: 103 L. T. 897;
55 S. J. 155 ; 27 T. L. R. 173— Eve, J.
The semble in the headnote to Llanover
(Baroness), In re; Herbert v. Ram ([1907]
1 Ch. 635). questioned. 76.
Executory Gift Over — Infants.] — A testator
by his will devised certain freehold property
upon trust for his daughter for life, and after
her death for her children who being sons
should attain twenty-one, or being daughters
should attain that age or marry. The daugh-
ter died in July, 1910, leaving four children,
the eldest of whom attained twenty-one in
February, 1909 -.—Held, that the eldest child
was entitled to the entirety of the rents until
the next child attained a vested interest, and
therefore was a person having the powers of a
tenant for life under the Settled Land Act.
1882, s. 58, sub-s. 1 (ii.). Walmsley's Settled
Estates, In re, 105 L. T. 332; 55 S. J. 600—
Eve, J.
Devise to Trustees — Direction to Accumulate
Rents for Twenty-one Years — After that
Period to Daughter for Life.] — A testator de-
vised real estate to trustees upon trust to let
and manage the same and to accumulate the
rents and profits for twenty-one years after
his death, such accumulations to be held upon
trust for investment in real estate, and upon
the expiration of the twenty-one years his real
estate was to be held upon trust for his daugh-
ter for life with remainders over : — Held, that
the daughter was a person having the powers
of a tenant for life within the meaning of the
Settled Land Act, 1882, s. 58, sub-s. 1 (vi.).
Llewellyn, In re; Lleivellyn v. Llewellyn
(80 L. J. Ch. 259; [1911] 1 Ch. 451) followed.
Martyn, In re; Coode v. Martyn (69 L. J.
Ch. 733), questioned. Beauchamp's Trusts,
In re; Cadge v. Barker-Hahlo. 83 L. J. Ch.
440; [19141 1 Ch. 676; 110 L. T. 814; 58 S. J.
320— Eve, J.
Executors Entitled to Income Pur Autre
Vie.] — The executors of a deceased person,
and certain other persons, were together
entitled to the income of real estate until the
death of the survivor of those persons : — Held,
that the executors and the other persons had
together the powers of a tenant for life under
section 58, sub-section 1 of the Settled Land
Act, 1882. Vine v. Raleigh (65 L. J. Ch. 103;
[1896] 1 Ch. 37) followed. Jemmett and
Guest's Contract, In re (76 L. J. Ch. 367;
[1907] 1 Ch. 629), distinguished. Johnson,
In re; Johnson v. Johnson, 83 L. J. Ch. 758;
[1914] 2 Ch. 134 ; 58 S. J. 611— Warrington, J.
Execution of Disentailing Deed,] — A tenant
in tail in possession of settled lands who
executes a disentailing deed and becomes
tenant in fee-simple in possession ceases to
have the powers of a tenant for life in
possession in respect of the settled lands.
Trafford's Settled Estates, In re, 84 L. J
Ch. 351; [1915] 1 Ch. 9; 112 L. T. 107—
Warrington, J.
2. Eights and Duties of.
^ee also Vol. XII. 1458.
Disentailing Deed — Re-settlement — Powers
of a Tenant for Life.] — A disentailing deed
executed by a tenant in tail in possession of
settled land is not for the purposes of sec-
tion 50 of the Settled Land Act, 1882, an
assignment of his estate or interest as tenant
in tail under the settlement. Trafford's
Settled Estates, In re, 84 L. J. Ch. 351 ; [1915]
1 Ch. 9; 112 L. T. 107— Warrington, J.
Unsuccessful Litigation by Tenant for Life
— Absence of Approval by Court — Subsequent
Application for Approval — Costs.] — When a
tenant for life of settled estates has embarked
on litigation in connection with the settled
estates without previously obtaining the
approval of the Court in accordance with the
provisions of section 36 of the Settled Land
Act, 1882, the Court, if afterwards applied to
for such approval, will consider the applica-
tion, not from the point of view of the result
of the litigation, but from the point of view
as to whether it would, or would not, have
been likely to approve the litigation had ap-
plication been made to it before the litigation
was commenced. Yorke, In re; Barlow v.
Yorke, 80 L. J. Ch. 253; [1911] 1 Ch. 370;
104 L. T. 134— Neville, J.
III. SALES.
1. In General.
See also Vol. XII. 728, 1465.
Assignment of Life Estate by First Tenant
for Life to Second Tenant for Life — Merger —
Power of Sale.] — Where the first tenant for
life of settled lands has assigned his life estate
to the second tenant for life under the settle-
ment, so that the life estate of the former has
become merged in that of the latter, the power
of sale conferred on a tenant for life by the
Settled Land Acts can be exercised by the
second tenant for life, notwithstanding the
provisions of section 50 of the Settled Land
Act, 1882. Observations of Chitty, L.J., in
Mundy and Roper's Contract, In re (68 L. J.
1393
SETTLED LAND.
1394
Ch., at p. 143; [1899] 1 Ch., at p. 296), and
of Swinfen Eady, J., in Barlow's Contract,
In re (72 L. J. Ch., at p. 216: [1903] 1 Ch.,
at p. 384), considered. Bruen's Estate, In re.
[1911] 1 Ir. R. 76— Wylie, J.
Assignment of Interest of — Powers under
Settled Land Act not Assignable — Consent of
Assignee for Yalue to — Death of Assignee —
Devise — Who Assignee for Value.] — A testator
who was tenant for life in possession of settled
real estate, with remainder to his eldest son for
life, with remainders over, purchased such
son's reversionary life estate from the son's
trustees in bankruptcy and assigned it to a
trustee upon trust to be dealt with as he should
direct to prevent a merger of his own life
estate. By his will the testator devised this
reversionary life interest to be held upon the
trusts and limitations declared by his will of
his real estates, which he devised to trustees
during the life of his second son without im-
peachment of waste, upon trust to pay such
annual sum for the benefit of such son as they
should in their discretion think proper, so long
as he should be under the age of twenty-five
years, with all the powers vested in trustees
by section 42 of the Conveyancing Act, 1881,
during the minority of an infant, and until
he .should attain twenty-five to accumulate the
residue of such income ; and upon further
trust that when such son should attain twenty-
five, if no act should have been done whereby
the equitable life estate thereinafter given to
him would have become vested in some other
person, to permit him to receive the income
during his life or until some act should be done
whereby such life estate or some part thereof
would, if belonging absolutely to him, have
become vested in some other person ; and on
the failure in his lifetime of the trust declared
in his favour the trustees were to continue in
possession during the rest of his life and apply
the income for his support and the support
of the other persons therein mentioned in such
manner as they should think proper. After
the death of the testator his eldest son, as
tenant for life, retaining his power of sale
under section 50, sub-section 1 of the Settled
Land Act, 1882, contracted to sell part of the
settled real estates, with the consent of the
trustees of the will as assignees for value
within the meaning of section 50, sub-section 3
of that Act. The purchasers, however, con-
tended the trustees were not assignees for
value : — Held, that the trustees of the will
were assignees for value within the meaning
of section 50, sub-section 3 of the Act, whose
consent was necessary and sufficient for the
exercise of the power of sale preserved to the
tenant for life by section 50, sub-section 1 of
that Act ; that section 50, sub-section 3 ought
not to be confined to the actual assignee for
value ; but must be intended to extend to those
who claimed under him, and that the trustees
of the will wore entitled to consent on the
ground that they were for the moment, and
might be during the whole existence of the
assigned estate, entitled to the whole of the
assignees 's interest in it for the purpose of
giving effect to the assignee's intention as
shewn by his will, being invested during such
period with full powers of management both
under the Act and otherwise. Monntgarret
and Moore's Contract, In re, 84 L. J. Ch. 398;
[1915] 1 Ch. 443; 112 L. T. 939; 59 S. J. 382;
31 T. L. R. 189— Astbury, J.
Conflicting Powers of Sale of Trustees and
Tenant for Life — Consent of Tenant for Life.i
—Where the Settled Land Act, 1882. s. .56',
requires the consent of the tenant for life to
the exercise by trustees of their power of sale,
a purchaser from the trustees is entitled to
evidence that the tenant for life has in fact
consented, but cannot insist on the concurrence
of the tenant for life in the conveyance. Pope
and Easte's Contract, In re, 80 L. J. Ch. 692;
[1911] 2 Ch. 442; 105 L. T. 370— Neville, J.
Trust to Retain or Sell — Discretionary
Power to Postpone — Tenant for Life — Power
or Trust for Sale.] — A devise and bequest of
real and personal property to trustees upon
trust either to retain the whole or any part
thereof or at such time and in such manner
as the trustees should think fit to sell the
same and invest the proceeds (which, with
any part of the real and personal property for
the time being remaining uninvested, were all
thereinafter referred to as " the trust estate ",,
with a discretionary power to postpone the
sale, the income until sale to be applied upon
the same trusts as were declared of the income
of the trust estate, and there being no subse-
quent gifts or expressions in the will which
shewed any intention that the real estate
should remain and be dealt with as such,
amount to a trust or direction to sell within
the meaning of section 63 of the Settled Land
Act, 1882. Johnson, In re; Cowley v. Public
Trustee. 84 L. J. Ch. 393; [1915] 1 Ch. 435;
112 L. T. 935; 59 S. J. 333— Astbury, J.
The first part of the trust ought to be read
as amounting to a trust to sell subject to a
power to retain, and the power to retain must
be construed as being a power to postpone
which was expressly given in a later clause
of the same will in the ordinary terms. 76.
Hotchkys, In re ; Freke v. Calmady (55 L. J.
Ch. 546; 32 Ch. D. 408), distinguished.
Crips, In re; Crips v. Todd (95 L. T. 865),
applied. lb.
2. Heirlooms.
See also Vol. XII. 741, 1470.
On an application by a tenant for life for
leave to sell heirlooms, the Court has to con-
sider not only the interests of the tenant for
life, but also the interests of other persons;
and it is for the tenant for life to shew that the
sale would be for the benefit of those to come
after him. Where, therefore, it was only
shewn that the sale of heirlooms would be for
the benefit of the tenant for life, the Court
refused the application. Sebright, In re:
Sebright v. Brownlow, 56 S. J. 240;
28 T. L. R. 191— Warrington, J.
On an application by a tenant for life for
leave to sell heirlooms, the Court, taking into
consideration the interests not only of the
tenant for life but also of those to come after
him, came to the conclusion that the purpose
of the application was not merely to increase
1395
SETTLED LAND.
1396
the income of the tenant for life, and granted
the application. Sebright, In re; Sebright v.
Brownlow (Earl), 31 T. L. K. 25— Warring-
ton, J.
IV. LEASES.
1. In General.
See also Vol. XII. 745, 1472.
Equitable Tenant for Life — Stone Quarries
— CoYenant to Fill up — Compensation for
Breach — Casual Profit — Capital or Income.] —
C. T. D.. who died in 1891, by his will ap-
pointed the plaintiffs executors and trustees,
and devised his residuary real estate upon trust
tj pay the net rents and profits thereof, includ-
ing the produce of mines and quarries, to or
permit the same to be received by the defen-
dant T. B. D., and after the death of the
defendant upon the trusts in the will men-
tioned. The testator gave the trustees powers
of managing real estate and of determining
what part of the produce of mines and quarries
should be applied as capital or income. By
lease dated February 7, 1898, which lease was
determined on June 12, 1912, the defendant as
tenant for life under the Settled Land Act,
1882, demised to lesees a quarry, part of the
real estate. The lessees covenanted that when
part of the quarry was exhausted they would
fill it up fit for agricultural purposes " under
a penalty to be recovered as rent in arrear or
as liquidated damages by the lessor of 150Z. an
acre." The lessees left 2 a. 3 r. 5 p. uncovered
in breach of their covenant, and arranged to
pay at the rate of 1501. per acre in respect of
this land a sum amounting to 4161. 6s. lOd.,
which sum had been paid to the defendant.
Ou a summons by the trustees asking whether
the defendant was entitled to retain all or any
part of such sum or whether it should be held
by them as capital,— ifeW, following bacon's
Settlement, In re; Lacon v. Lacon (80 L. J.
Ch. 610; [1911] 2 Ch. 17), that the defendant
was entitled to retain such sum. Dealtry,
In re; Davenport v. Dealtry, 108 L. T. 832 —
Eve, J.
Forfeiture Clause — Non-residence — Validity
of Condition.] — A gift by a husband of his
house to trustees in trust to allow his wife to
reside in it rent free, she paying for repairs,
insurance, &c., " and from and after the
decease or second marriage of my said wife or
of her ceasing to reside at the said dwelling-
house " the same to fall into residue, does not
prevent the wife from evacuating the house and
exercising her power of leasing as tenant for
life under the Settled Land Acts, and receiving
the rents received from such letting for her
own use and benefit during her widowhood.
Freme, In re; Samuel v. Freme, 56 S. J. 862
—Neville, J.
Licensed Premises — Compensation Charges
— Void CoYcnant in Lease — Best Rent not
Reserved — Lease Void against Remainder-
men.]— At the coming into operation of the I
Licensing Act, 1904, a public house comprised I
in a settlement had been leased to a brewery 1
company for a term of fourteen years from
1902 at a rent of 1501. The Licensing Act,
1904, s. 3, imposed certain charges on licensed
premises for a compensation fund and allowed
a part of such charges to be deducted by the
licence holder from his rent, notwithstanding
any agreement to the contrary. The tenant
for life objected to these deductions and ulti-
mately agreed to grant a new lease at the
same rent if the company would pay the whole
of the charges. In 1906 he executed a fresh
lease to the brewery company for a term of
twenty-one years at the rent of 1501., the com-
pany covenanting to pay the rent without
deduction and to pay all charges, including
all payments to the compensation fund under
the Licensing Act, 1904. The company in fact
paid these charges for many years, though not
legally obliged to do so. In an action by the
remaindermen against the company for a
declaration that the lease was not binding
upon them, — Held, first, that the rent agreed
to be paid was 150Z. plus the amount of the
deductions under the Licensing Act, 1904;
secondly, that the rent actually reserved was
150Z. subject to deductions; and thirdly, that
the lease was not a valid lease under the provi-
sions of the Settled Land Act, 1882, on the
grounds (a) that it did not reserve the best
rent that could reasonably be obtained, and
(b) that it contained no valid covenant for the
payment of the rent actually agreed upon.
Pumford v. Butler d Co., 83 L. J. Ch. 858;
[1914] 2 Ch. 353 ; 111 L. T. 408 ; 78 J. P. 457 ;
58 S. J. 655 ; 30 T. L. E. 556— Joyce, J.
2. Mining Leases.
See also Vol. XII. 750, 1474.
Poser Contained in Settlement to Grant
Leases — Lease Granted by Tenant for Life
under the Posers Conferred by the Settled
Land Acts — Rents of Mining Leases to be Set
Aside as Capital Money — "Contrary inten-
tion."]— Under section 11 of the Settled Land
Act, 1882, a portion of the rents of a mining
lease are to be set aside as capital money
unless a contrary intention appears in the
settlement. If a contrary intention appears in
the settlement section 11 is excluded, although
the tenant for life grants the mining lease
under the Act and not under the power con-
tained in the settlement. Rayer, In re; Rayer
V. Rayer, 82 L. J. Ch. 461; [1913] 2 Ch. 210;
109 L. T. 304; 57 S. J. 663— Neville, J.
Unopened Mines — Mining Leases — Tenant
for Life and Remainderman — Proportion of
Mining Rent to be Set Aside as Capital —
"Contrary intention."] — A power in a will
.vuthorising trustees to let lands does not
empower them to grant a lease of unopened
mines. Where such a lease is granted under
the provisions of the Settled Land Act, 1882,
s. 11, a gift by the will to the tenant for life
of rents and profits is not sufiBcient evidence
of a contrary intention to the provisions of the
section, and does not entitle him to receive the
full mining rents, and he is therefore only
entitled to one fourth part thereof. Daniels,
1397
SETTLED LAND.
1398
In re; Weeks v. Daniels, 81 L. J. Ch. 509;
[1912] 2 Ch. 90; 106 L. T. 792; 56 S. J. 519
— Swinfen Eady, J.
Setting Aside Part of Rent as Capital —
Contrary Intention in Settlement — Tenant in
Fee with Executory Gift over — Tenant for
Life without Impeachment of Waste.] — A
testator by his will gave to his wife his real
and personal estate " absolutely in full con-
fidence that she will make such use of it as I
should have made myself and that at her death
she will devise it to such one or more of my
nieces as she may think fit " and in default
to be divided equally among the surviving
nieces. The widow granted mining leases
under the Settled Land Act, 1882 -.—Held, that
she was entitled to the whole of the rents and
royalties, there being a sufficient expression
of "a contrary intention " to exclude the
application of section 11 of the Act. Hanbury's
Settled Estates, In re {No. 2), 82 L. J. Ch.
428; [1913] 2 Ch. 357 ; 109 L. T. 358; 57 S. J.
646; 29 T. L. E. 621— Eve, J.
Opened or Unopened Mines — Right of
Tenant for Life to Rents and Royalties under
Leases — Leases Granted by Settlor — Leases
Granted by Trustee of Settlement — Devise of
Mines on Trust for Sale — Power of Postpone-
ment— Income till Sale to go as Income of
Proceeds.] — An "opened" mine is a mine
which is in course of being worked ; and a
mine may be being worked if a shaft has been
sunk down to it and the mine is capable of
being worked through the shaft whenever
opportunity arises, though no coal has in fact
been hewn. Semble, that mines which are
part of seams other parts of which are being
worked are "opened" mines, even if they
have to be worked by following the seam by
means of fresh pits. Morgan, In re; Vachell
V. Morgan, 83 L. J. Ch. 573; [1914] 1 Ch.
910; 110 L. T. 903— Sargant, J.
A testator gave all his real and personal
estate on trust for sale, conversion, and in-
vestment, and to hold the investments, as to
two equal fourth parts, on trust to pay the
income to two persons during their lives.
He declared that the sale and conversion might
be postponed for so long as his trustees should
think proper, and that the rents, profits, and
income arising from unconverted parts of the
estate should be paid and applied in the same
manner as the income of the proceeds of sale
and conversion ; and he gave his trustees full
powers of leasing. The testator owned valu-
able mining property, part of which had been
leased by him in his lifetime by a lease which
was still subsisting at his death. The trustee
afterwards granted leases of the remaining
mining property. Some of it had not been
worked during the testator's life, though it
had been intended ultimately to work it by
a pit sunk by the lessees of the part leased
by the testator. The remaining part of the
land leased by the trustee had been worked
during the testator's life. The working had
been discontinued, but he had intended to
resume it -.—Held, that the tenants for life
were entitled to the full rents and royalties
under all the leases. lb.
V. CHARGES.
See also Vol. XII. 1476.
Costs and Expenses of Valuation — Rever-
sion Duty — Increment Value Duty.] — A tenant
for life of settled land may provide for the
payment of increment value duty and reversion
duty out of capital moneys. Where there are
no capital moneys, he may charge the whole
of the settled property with the payment of
any increment value duty or reversion duty
payable upon any part of the property.
Maryon-Wilsons Settled Estates, In re;
Maryon-Wilson v. Du Cane, 84 L. J. Ch. 121;
[1915] 1 Ch. 29; 112 L. T. Ill— Eve, J.
The expenses incurred in or about the ascer-
taining of the duties so far as they arise out
of the exercise of any of the statutory powers
conferred upon the tenant for life are
expenses incidental to the exercise of those
powers within section 21, sub-section (x) of
the Settled Land Act, 1882, and payable out
of capital. lb.
By virtue of section 39 of the Finance
(1909-10) Act, 1910, coupled with section 11 of
the Settled Land Act, 1890, a tenant for life
may charge the settled estates with any
reasonable expenses incurred by him in con-
nection with the original site valuation thereof.
Smith-Bosanquet's Settled Estates, In re
(107 L. T. 191), followed. 7b.
VI. TKUSTEES.
See also Vol. XII. 763, 1477.
General Power of Appointment — Appoint-
ment of Life Estate — Sale by Tenant for Life
— No Antecedent Estate or Charge — Trustees
with Power of Sale of Instrument Creating
the Power — Power of Sale Exhausted —
Trustees for Purposes of Settled Lands Act.]
— A testator by his will appointed trustees
with power to sell his freehold estates, and
gave his widow, who was made tenant for life
thereunder, a general power of appointment by
will. By her will she appointed the real
estate to the use of G. for life, with remainder
over in strict settlement. There was no sub-
sisting estate or charge antecedent to the life
estate created under the general power. G.
having agreed to sell the property in exercise
of his powers as tenant for life, — Held, that
the limitations created by the exercise of the
general power of appointment were not
limitations under the testator's will, that the
settlement under that will was therefore spent
and the power of sale conferred on the trustees
exhausted, and that in order to make a title
trustees of the widow's will for the pur-
poses of the Settled Land Act must be
appointed. Gordon and Adams' Contract, In
re; Pritchard's Settled Estate, In re, 83 L. J.
Ch. 172; [1914] 1 Ch. 110; 109 L. T. 725;
58 S. J. 67— C. A.
Decision of Eve, J. (82 L. J. Ch. 455;
[1913] 1 Ch. 661), reversed. lb.
Lands Settled Subject to an Annuity — Power
of Sale in Trustees during Life of Tenant for
Life — Sale by Tenant for Life under Land
Purchase Acts — Death of Tenant for Life after
1399
SETTLED LAND.
1400
Pnrchase Money Advanced — Remaindermen
Absolutely Entitled — Payment out of Residue
— Appointment of Trustees for Purposes of
Settled Land Acts.] — Lands settled subject
only to an annuity (not secured by a term)
were, in the events that happened, limited to
F. for life, with remainder to P. absolutely.
By the settlement, the trustees were given a
power of sale during the life of F. F. sold
the settled lands under the Land Purchase
Acts, and died after the purchase money had
been advanced. The final schedule had been
settled on the assumption that the residue
would be paid to the trustees of the settlement.
The annuitant objected, claiming to be put on
the final schedule on the ground that the settle-
ment was at an end : — Held, first, that, as a
matter of form, an order should be made con-
tinuing the proceedings in the name of P. ;
and secondly, that the moneys in Court being
capital moneys arising from the sale of the
settled lands, which had been carried through
by the tenant for life under the Settled Land
Acts, the Court had power to appoint trustees
for the purposes of the Settled Land Acts and
to pay the residue to them to be held upon
the trusts of the settlement. Semble, on the
death of F. the trustees of the settlement
ceased to be trustees for the purposes of the
Settled Land Acts. Mundy and Roper's Con-
tract, In re (68 L. J. Ch. 135; [1899] 1 Ch.
275), and Wimhorne and Browne's Contract,
In re (73 L. J. Ch. 270: [1904] 1 Ch. 587),
distinguished. CoUis's Estate, In re, [1911]
1 Ir. R. 267— Wylie, J.
Sale by Tenant for Life— Compound Settle-
ment— Conveyance of Land in England to
Uses of Irish Settlement — Documents Com-
prised in Settlement and Prior to Commence-
ment of Title — Trustees of Settlement
Appointed by Irish Court — Purchaser's Right
to Enquire into Source of Purchase Moneys of
English Land.] — By a contract, made in 1911,
for the sale of freehold hereditaments in
England by a tenant for life acting under the
powers of the Settled Land Acts it was pro-
vided that the title should commence with two
mortgages of 1874. The settlement under
which the vendor was tenant for life was a
compound settlement, and comprised a series
of documents commencing with a will of 1836
and ending with a re-settlement of 1902.
Down to 1910 the lands subject to the settle-
ment were all situate in Ireland. In that
year the property contracted to be sold was
conveyed to the uses of the compound settle-
ment, the conveyances containing recitals that
the present vendor, as tenant for life, had
directed the application in the purchase of the
property of capital moneys in the hands of the
trustees arising from sales of settled estates in
Ireland, and which by virtue of the compound
settlement and the Settled Land Acts were
liable to be so invested. The present trustees
of the settlement for the purposes of the
Settled Land Acts had been appointed by the
High Court in Ireland in 1908. The present
purchasers made requisitions for the production
of the probate or ofifice copy of the will of
1836 ; for the appointment of trustees of the
compound settlement by the High Court in
England ; and for proof that the purchase
moneys of the property now being sold had
been duly acquired by the trustees by a proper
sale of part of the settled estates. The vendor
furnished an abstract of a disentailing deed
of 1860, reciting the will of 1836, and informed
the purchasers that the purchase moneys of
the property on the purchase in 1910 had arisen
from sales under the Irish Land Purchase
Acts : — Held, that the requisition as to the
will was precluded by section 3, sub-section 3
of the Conveyancing Act, 1881; that the pur-
chase of land in England out of moneys subject
to an Irish settlement did not make an
appointment of trustees by the English Court
necessary ; and that the purchasers were not
entitled to require more information as to the
source of the purchase moneys than that
afforded by the conveyance of 1910. Arran
{Earl) and Knowlsden, In re, 81 L. J. Ch. 547 ;
[1912] 2 Ch. 141; 106 L. T. 758— Warrington,
Future and Conditional Trust for Sale —
Tenant for Life and Sole Trustee — Trustee for
Purposes of Act — Power to Give Receipts.] —
A sole trustee with a conditional trust for
sale, who is also tenant for life of the settled
estates, is a trustee for the purposes of the
Settled Land Acts, and is entitled to receive
and give a good discharge for the purchase
money of any part of the settled estate sold
by him as tenant for life. Johnson's Settled
Estates, In re, 57 S. J. 717— Eve, J.
VII. CAPITAL MONEY.
1. What is.
See also Vol. XII. 767, 1481.
Tenant for Life — Not Impeachable for
Waste — Lease of Mansion House — Breach by
Lessee of Covenant to Keep in Repair — Money
Paid as Damages — Person Entitled.] — A
tenant for life, not impeachable for waste, in
1888 granted, with the consent of the trustees
of the settlement, a lease of the mansion house
comprised in the settlement for twenty-one
years, the lessee covenanting to keep the
mansion house (which the lessor had put in
repair) in good and substantial repair. The
lessor died during the currency of the lease,
and on its expiry the succeeding tenant for
life, who also was not impeachable for waste,
claimed and was paid a sum of money as
damages for breach of the covenant : — Held,
that section 53 of the Settled Land Act, 1882,
had no application as the tenant for life was
not exercising any power under the Settled
Land Acts, but was only asserting his legal
right under a covenant which ran with the
land, and that the money must be taken to
represent the damages which he had suffered,
and was therefore not payable to the trustees
of the settlement as capital money, but could
be retained by him for his own benefit.
Noble V. Cass (2 Sim. 343) applied. Mitchell
V. Armstrong (17 T. L. R. 495) doubted by
Kennedv, L.J. Lacon's Settlement, In re;
Lacon v. Lacon, 80 L. J. Ch. 610; [1911]
2 Ch. 17; 104 L. T. 840; 55 S. J. 551;
27 T. L. R. 485— C. A.
1401
SETTLED LAND.
1402
2. Application and Investment of.
a. In General.
See also Vol. XII. 768, 1482.
Capital Money Arising from Sale of Lease-
holds— Purchase of Annuity — Direction to
Trustees to Pay Rates — Loss of Benefit — Con-
dition Tending to Prevent Sale,] — A testator
directed his trustees to permit his wife to
occupy his leasehold house, they paying the
rates, taxes, and outgoings in respect thereof.
The widow having sold the unexpired term of
the lease, — Held, that the purchase money
must be invested in an annuity for the full
term of the lease, which would be paid to the
widow during her life and then fall into
residue. Held, also, that the widow was not
entitled to any compensation for the loss of
the benefit given to her by the direction to
pay rates, taxes, and outgoings. Trenchard,
In re; Ward v. Trenchard (16 T. L. E. 525),
dissented from. Trenchard, In re; Trenchard
V. Trenchard (71 L. J. Ch. 178; [1902] 1 Ch.
378), considered and followed. Simpson. In
re; Clarke v. Simpson, 82 L. J. Ch. 169;
[1913] 1 Ch. 277; 108 L. T. 317; 57 S. J. 302
— Swinfen Eady, J.
Heirlooms — Heirlooms Settled upon Corre-
sponding Trusts to Land — Estate Duty —
Succession Duty — Interest — Jointure — " Free
from all deductions."] — Under a settlement
made in 1889, whereby the Egmont estates
and certain heirlooms were settled in strict
settlement, the seventh Earl of Egmont became
tenant for life and the eighth earl tenant for
life in remainder. The seventh earl died in
1897, and no estate duty or succession duty
was then paid upon the heirlooms. In 1897,
the eighth earl, in exercise of a power con-
tained in the settlement, granted to his wife
during her life a yearly rentcharge " free from
all deductions." Upon the death of the eighth
earl in 1910, the Crown claimed payment of
the duties which became payable on the death
of the seventh earl, together with interest
thereon. The trustees had in their hands
investments representing capital moneys aris-
ing under the settlement, and also money
representing rents accrued during the lives of
the eighth and present earls : — Held, that
as the tenants for life were liable to keep
down interest on charges, the interest on both
the succession duty and the estate duty on
the heirlooms must be paid by the trustees
out of the money representing income of the
estate accruing during the lifetime of the two
successive tenants for life ; that capital money
raised under the Settled Tjand Acts from other
parts of the settled property might be expended
in discharging incumbrances, including the
estate and succession duty, on the heirlooms;
and that according to the true construction of
the settlement the succession duty on the
jointure should not be deducted therefrom,
but must be paid out of capital moneys.
Egmont's (Earl) Settled Estates, In re; Lefroy
V. Eqnwnt, 81 L. J. Ch. 250; [1912] 1 Cb.
251; 105 L. T. 292— Warrington, J.
Freehold Ground Rents — Costs of Survey
and Notices to Repair — "Action taken for
protection of settled land " — Power of Court
to Order Costs to be Borne by Capital.] — A
testator settled an estate consisting of a large
number of small houses let on long leases at
ground rents amounting to 2,100T. a year.
The trustees incurred an expenditure of l,10Ui.
in having a survey taken and notices of
repair served on all the tenants, which notices
had been complied with : — Held, that, not-
withstanding a direction contained in the will
directing that the costs of the management of
the estate should be paid out of income, the
Court, in the circumstances, had power to
order the trustees' costs to be borne by the
capital, as being costs of proceedings taken
for the protection of the estate under the
Settled Land Act, 1882, s. 36. Tubbs, In re;
Dykes v. Tubbs, 84 L. J. Ch. 539; [1915]
2 Ch. 187 ; 113 L. T. 395; 59 S. J. 508— C.A.
Assignment of Life Interest — Surveyor's
Costs — Tenant for Life Required to Exercise
his Powers — Costs Incurred by Tenant for
Life.] — A tenant for life assigned his life
interest in settled estates to an insurance com-
pany, and it was provided that he should
receive an annuity out of the estates, which
annuity was to be forfeited if he refused or
neglected to exercise his powers under the
Settled Land Acts when reasonably requested
to do so by the company. He also covenanted
not to exercise his powers as tenant for life
without the company's consent, and to do all
things reasonably required by them in relation
to the exercise of his powers. On being re-
quested by the company to sell a part of the
settled estate he consulted surveyors as to
the sufficiency of the price offered, and
claimed that their fees were payable out of
capital moneys : — Held, that those fees were
incurred by the tenant for life in relation to
the proposed exercise of his power of sale
and on account of his position as a trustee
for all parties entitled under the settlement,
and were payable out of capital moneys.
Held, further, that when the company re-
quired the tenant for life to exercise his
powers in the future he was entitled to obtain
proper advice, but that he was not entitled
to initiate a scheme for the exercise of his
powers, and that if, when asked to exercise
his powers, he was afforded, at the expense
of the estate, reasonable information and
advice, that fact would have an important
bearing upon the question whether further
costs were properly incurred by him. Hope^
In re; Tarleton v. Hope, 28 T. L. E. 98—
Warrington, J.
Costs of Proceedings for Recovery of — Pro-
ceedings Proposed to be Taken, but Subse-
quently Abandoned — Payment of Costs out of
Capital.] — Section .')6 of tlie Settled Lind Ac^,
1882, empowering tlie Court to order payment
out of capital of the costs of proceedings taken
or proposed to be taken for the recovery of
settled land, is not limited to proceedings pro-
posed to be taken at the date when the order
is made, but extends to proceedings formerly
proposed to be taken, but never actually taken.
Wilkie's Settlement, In re; Wade v. Wilkie,.
1403
SETTLED LAND.
1404
83 L. J. Ch. 174; [1914] 1 Ch. 77; 109 L. T.
927; 58 S. J. 138— Sargant, J.
Costs were incurred, at the request of a
tenant for life, in connection with proceedings
for the recovery of land alleged to be subject
to the settlement ; but on the advice of counsel
the proceedings were abandoned : — Held, that
the Court could make an order for the payment
of the costs out of capital under section 36.
lb.
Semble, that the order could have been made
apart from the Act. lb.
Payment of Costs — Petition for Faculty
Compromised — Protection of Estate.] — The
costs of the petitioner and the fees and ex-
penses of the Chancellor of the diocese of a
petition for a new faculty made to the
Ecclesiastical Courts by the lord of the manor,
which petition alleged a lost faculty and also
that the lord had exercised certain privileges
of seating accommodation and burial in the
south aisle of his parish church since the year
1740, and which was compromised, the lord
being granted certain rights of seating and
of burial, and of erecting memorial tablets
in such aisle, were held to be costs for the
protection of the settled land within the mean-
ing of section 36 of the Settled Land Act,
1882, and accordingly the Court could order
such costs to be paid out of capital moneys.
As to the costs of the vicar on such a petition,
qucere. Mosley's Settled Estates, In re,
56 S. ,T. 325— Neville, J.
" Incumbrance " — Repair of Highway.] —
Whether a liability to repair a highway
ratione tenurce is an " incumbrance " within
the meaning of section 21, sub-section (ii.) of
the Settled Land Act, 1882, qucere. Stamford
and Warrington (Earl), In re; Payne v. Grey
(No. 2), 80 L. J. Ch. 361; [1911]' 1 Ch. 648;
105 L. T. 12 ; 75 J. P. 346 : 9 L. G. E. 719 ;
65 S. J. 483— Warrington, J.
A liability to repair a highway ratione
tenurcB is not an " incumbrance " within the
meaning of section 21, sub-section 2 of the
Settled Land Act, 1882, and trustees of a
settled estate are not justified in using capital
moneys in their possession in order to free the
estate from the liability. Hodgson's Settled
Estates, In re; Altamont (Countess) v.
Forsyth, 81 L. J. Ch. 376; [1912] 1 Ch.
784; 106 L. T. 456— Neville, J.
Section 22, sub-section 5 of Settled Land
Act, 1882.] — Observed upon. — See Monckton's
Settlements, In re, 83 L. J. Ch. 34; [1913]
2 Ch. 636; 109 L. T. 624; 57 S. J. 836—
Sargant, J.
b. Improvements.
See aho Vol. XII. 111. 1484.
Conversion of Land into Building Land —
Erection of Estate Office.] — Where a settled
estate is proposed to be developed as a build-
ing estate and it is found necessary to build
an estate office on the estate for the purpose
of the development, and the Court is satisfied
that the erection of an estate office is neces-
sary or proper in connection with the conver-
sion of the land into building land or for securing
the full benefit of such conversion, the Court
will sanction the cost of the erection of the
estate office out of capital moneys under the
Settled Land Act, 1882, s. 25, sub-s. xvii.
De Crespigny Settled Estate, In re, 83 L. J.
Ch. 346; [1914] 1 Ch. 227; 110 L. T. 236;
58 S. J. 252— Astbury, J.
Coal Mines — Statutory Requirements — Pay-
ment out of Capital.] — The alterations in and
additions to the plant and equipment of coal
mines which are imposed upon mine owners
by the Coal Mines Act, 1911, are improve-
ments authorised by the Settled Land Act,
1882, s. 25 (xix.) and (xx.), and may there-
fore be paid for out of capital money arising
under the Act. Hanbury's Settled Estates,
In re (No. 1), 82 L. J. Ch. 34; [1913] 1 Ch.
50; 107 L. T. 676; 57 S. J. 61— Eve, J.
Open Space — Golf Course and Club House.]
— The construction of a golf club house and
the laying out of a golf course held to be an
improvement within the meaning of section 25,
sub-section xvii. of the Settled Land Act,
1882, as being an " open space." De la
Warr's (Lord) Settled Estates, In re,
27 T. L. E. 534— Eve, J.
Development of Estate — Golf Course — Dis-
turbance of Agricultural Tenant — Compensa-
tion — Payment out of Capital Moneys.] —
Capital money arising under the Settled Land
Act, 1882, may not be expended in paying
compensation to an agricultural tenant from
year to year, under the Agricultural Holdings
Act, 1908, on terminating his tenancy, even
though it be necessary to terminate his
tenancy in order to effect a duly authorised
improvement consisting in a golf course under
the first-named statute. De la Warr's (Earl)
Cooden Beach Estate, In re, 82 L. J. Ch.
174; [1913] 1 Ch. 142; 107 L. T. 671;
57 S. J. 42; 29 T. L. E. 30— C.A.
" Annual rental " — Carriage Drive — " Pri-
vate road ' ' — Footpaths — Fencing. ] — The
words " annual rental " in sub-section iv. of
section 13 of the Settled Land Act, 1890, mean
the total amount of the rents payable by the
several tenants to the landlord or his agent ;
so that, if any part of the land is temporarily
vacant, one is entitled for the purpose of
applying the sub-section to treat it as produc-
ing the rent which a tenant occupying it
usually pays. Deductions from the gross
rental should be made for property tax, but
not for mortgage interest, tithes, land tax,
drainage rates, or rentcharge. Windham's
Settled Estate, In re, 81 L. J. Ch. 574;
[1912] 2 Ch. 75; 106 L. T. 832—
Warrington, J.
A carriage drive is a " private road " within
section 25, sub-section viii. of the Settled Land
Act, 1882, but a garden footpath is not. lb.
Compensation to Agricultural Tenant Hold-
ing from Year to Year.] — Compensation pay-
able to an agricultural tenant holding from
year to year on the termination of his tenancy
is not expenditure on an improvement within
Settled Land Acts. Cooden Beach Estate,
In re, 57 S. J. 42; 29 T. L. E. 30— C.A.
Affirming, 107 L. T. 141— Joyce, J.
1405
SETTLEMENT.
1406
SETTLEMENT.
I. Obligations to Settle.
1. Articles, 1405.
2. Covenants, 1406.
II. Executed Settlements.
1. Property Settled, 1409.
2. Limitations and Interests Created by.
a. For Children, 1410.
b. Life Interests, 1412.
c. Estates in Realty, 1413.
d. Portions. — See Portions.
m. Action by Married Woman in Eespect
OF Settled Property, 1414.
rv. Y.ARiATioN on Divorce or Dissolution
OF Marriage — See Husband and Wife.
I. OBLIGATIONS TO SETTLE.
1. Articles.
See aha Vol. XII. 810, 1493.
Tenant in Tail— Nature of Estate Settled —
Post-nuptial Settlement — Usual Clauses in
Settlement — Hotchpot Clause — Cross-
remainders — Election.] — Bj marriage articles,
B., the intended husband, being entitled as
tenant in tail in remainder to three estates
the M., W., and P. estates, covenanted to
convey to trustees all real estate to which he
was, or during the coverture should become,
entitled in fee tail in possession or remainder
for all such estate as he could convey therein.
It was thereby declared that the trustees
should stand seised of all such real estate on
trust for B. for life with remainder to C, the
intended wife, for life for her separate use
without power of anticipation. And it was
also declared that, after the said life estates,
the trustees should stand seised of all such
real estate with remainder to the child or
children or remoter issue of the said intended
marriage, or any or either of them, in such
manner as B. should, by the settlement to be
made, appoint. And it was further agreed
that the settlement should contain all powers,
provisions, clauses, and agreements as are
usually inserted in marriage settlements as B.
should by the settlement agree to. By post-
nuptial settlement B., with the consent of the
protector and the concurrence of C, disen-
tailed the M. estate and conveyed it to the
trustees of the articles, on trust after his own
life estate to raise a jointure for C, and
2,000Z. for portions for younger children as-
B. and C. should appoint, and, subject thereto,
to the eldest son in tail. In execution of that
power B. and C. jointly appointed the 2,000/.
among three children, to be raised after the
death of the husband, and in priority to the
wife's jointure. By a subsequent disentailing
deed B. disentailed the W. estate to his own
u.se, and did not re-settle it. By his will he
purported to leave it absolutely to C. B. died
without disentailing the P. estate, and the
next tenant in tail, the eldest son of the mar-
riage, subsequently disentailed : — Held, first,
that the articles settled a voidable estate in
fee-simple in all the estates; that, as regards
the M. estate, the effect of the disentailing
deed and re-settlement was to capture the fee-
simple of the estate for the trusts of the
marriage articles, and that the settlement
must be disregarded so far as it was incon-
sistent with the articles; secondly, that a
hotchpot clause, and a clause providing for
cross-remainders, should, in view of the pro-
visions contained in the articles, be read into
the articles ; thirdly, that the attempt in the
settlement to give the portions priority to the
wife's life estate and to cut down her life
estate to a jointure was void as being incon-
sistent with the articles; fourthly, that the
W. estate was captured by the articles on the
execution of the disentailing deed; fifthly,
that the P. estate was not captured by the
articles, the settlor having died without exe-
cuting a disentailing deed, but that the eldest
son who disentailed, if he elected to take
under the settlement and articles, must bring
in the P. estate as if he had disentailed it to
the uses of the articles, and must also bring
the value of his tenancy in tail in the M.
estate into hotchpot. Blake v. Blake, [1913]
1 Ir. R. 343— Barton, J.
2. Covenants to Settle.
See also Vol. XII. 814, 1494.
Gift from Husband to Wife.]— There is no
general rule that a covenant in a marriage
settlement to settle after-acquired property
cannot capture gifts from the husband to the
wife. Ellis's Settlement, In re (78 L. J.
Ch. 375; [1909] 1 Ch. 618), and Plumptre's
Settlement, In re (79 L. J. Ch. 340; [1910]
1 Ch. 609), followed. Kingan v. Matier,
[1905] 1 Ir. R. 272) not followed. Leigh-
White V. Ruttledge, [1914] 1 Ir. R. 135—
Barton, J.
A marriage settlement made in 1865 con-
tained a covenant by the husband and wife
separately to settle any sum or sums, stocks,
or other personal estate exceeding in amount
or value 200Z. at any one time which should
during the coverture " be given or bequeathed
to, or in any manner vest in," the wife. In
1897 the husband, in consideration of natural
love and affection, assigned absolutely to the
wife a policy of insurance on his life for 6,000/.
(with bonuses), and two mortgages for 600/.
and 600/. respectively : — Held, these were
captured by the covenant to settle. lb.
Covenant to Settle any " interest in expec-
tancy " — Prospective Interest under Limita-
tion to Next-of-kin — Spes Successionis.] — By
her will a testatrix gave a share of her
residuary estate to her daughter W. for life,
and directed that if W. died without issue
the share was to go to W.'s next-of-kin as if
she had not been married. The testatrix died
in 1864, and in 1866 J., another daughter of
the testatrix, married, and by her ante-nuptial
settlement covenanted that any real or personal
property of the value of 50/. or upwards to
which she was then entitled " for any estate
or interest whatsoever in possession reversion
or expectancy " should be settled upon the
1407
SETTLEMENT.
1408
trusts of the settlement. W. died iu 1912
leaving J., who was then a widow, her sole
next-of-kin : — Held, following Parsons, In re;
Stockley v. Parsons (59 L. J. Ch. 666;
45 Ch. D. 51 j, that at the date of her marriage
settlement J.'s prospective interest in W.'s
share was of the nature of a mere spes
successionis ; and held, further, that, whether
or not it was an " expectancy " within the
meaning of the covenant, the covenant by J.
to settle " any estate or interest ... in expec-
tancy " to which she was then entitled was
too vague to be enforced. Mudge, In re,
83 L. J. Ch. 243; [1914] 1 Ch. 115; 109 L. T.
781; 58 S. J. 117— C. A.
Decision of Neville, J. (82 L. J. Ch. 381;
[1913] 2 Ch. 92), reversed. lb.
Wife's After-acquired Property — Contem-
poraneous Assignment of Part — Trust for
Settlor — Contingent Interest Falling into Pos-
session during Coverture.] — By a marriage
settlement the wife covenanted to settle any
property to which she should become entitled
during the coverture. The wife was at the
date of the marriage contingently entitled to
her two brothers' shares in their parents'
settlement funds. One of the brothers having
died before attaining the age of twenty-one,
she became entitled in possession, during the
coverture, to one-half of his share : — Held,
that such one-half share came within the
covenant. Archer v. Kelly (29 L. J. Ch. 911;
1 Dr. & S. 300) followed. Williams' Settle-
ment, In re; Williams v. Williams, 80 L. J.
Ch. 249; [1911] 1 Ch. 441; 104 L. T. 310;
55 S. J. 236— Eve, J.
Money Received Subject to Covenant — Non-
assignment to Trustees — Investment in Bonds
— Bonds Followed — Statute of Limitations.]
— In November, 1879, a sum of money was
given to a wife, which was bound by a cove-
nant of herself and her husband in their
marriage settlement to settle her after-acquired
property. The money was paid into the hus-
band's banking account, upon which the wife
had power to draw, and a month later part of
it was invested in two Cape of Good Hope
Bonds, which remained at the bank, the in-
terest on them being credited to the account.
The husband died in 1909 and the bonds came
into possession of his executors. It was ad-
mitted that part of the money was represented
by the two bonds, that they were bought for
and belonged to the wife, and that they were
in the husband's possession at his death. The
trusts of the settlement were still subsisting
for the wife and children of the marriage.
Upon action by the trustees of the settlement
to recover the bonds against the executors,
who pleaded the Statute of Limitations, —
Held, that the money the instant it was
received became in equity subject to the trusts
of the settlement, and that the bonds were
therefore trust property which could be claimed
by the trustees. Held also, that trustees of a
marriage settlement are entitled to specific per-
formance of a covenant to create a trust which
is for the benefit of persons within the marriage
consideration. Spickemell v. Hotham (Kay,
669) examined and explained. Pullan v. Koe,
82 L. J. Ch. 37; [1913] 1 Ch. 9 ; 107 L. T
811; 57 S. J. 97— Swinfen Eady, J.
Yearly Rentcharge — Release — Second Mort-
gage to Secure 10,000/ to Widow after Death
of Husband.] — A marriage settlement dated
in 1884 contained a covenant for the settle-
ment of the after-acquired property of the
wife. The husband covenanted to secure to
her a yearly rentcharge of 5001., which he
charged upon certain property. He subse-
quently executed a deed for that purpose.
Some years later the wife released to her hus-
band the rentcharge, and the husband mort-
gaged the property to the wife to secure the
payment to her of 10,000Z. This mortgage
was subject to a first mortgage of even date.
By his will the husband devised the property
upon trust for his wife for life, with remainder
to such son of his as should first attain twenty-
one. After the death of the husband the
widow, in exercise of her power as tenant for
life, sold the property. The first mortgage
was then paid off : — Held, that the widow was
entitled to the 10,000/. with interest, and that
the 10,000Z. was not subject to the covenant
to settle after-acquired property. Churchill v.
Denny (44 L. J. Ch. 578; L. E. 20 Eq. 534)
referred to. Biscoe, In re; Biscoe v. Biscoe,
111 L. T. 902— Joyce, J.
" May be entitled " — Residuary Interest
under Subsequent Will.] — By an ante-nuptial
agreement the husband agreed that he would
forthwith execute a settlement " of all my
share, property or interest, as well vested or
accruing, to which I may be entitled under
any will or settlement." The settlement was
never made, but many years after the agree-
ment had been executed the husband became
entitled to residue under the will of his father :
— Held, that such residue was not caught by
the words of the agreement. Ridley's Agree-
ment, In re; Ridley v. Ridley, 55 S. J. 838 —
Swinfen Eady, J.
Life Policy — '?alue.] — A marriage settle-
ment contained a covenant to settle all real
and personal property (if any) not therein-
before settled to which the wife after the
intended marriage or at any time during her
then intended coverture should be or become
entitled, either in possession, reversion, re-
mainder, or otherwise, except jewels, &c., and
except also any legacy or other property
acquired at one and the same time not ex-
ceeding in amount or value the sum of 200Z.
The husband three years after the marriage
effected an endowment policy for 500/. on
his own life. He paid the premiums and died
in 1909, and his wife received the money.
There was one son surviving : — Held, that
the value of the policy must be ascertained
at the time it was effected, when it was not
worth 200/., and that the policy moneys were
not caught by the covenant. Harcourt, In re;
White V. Harcourt, 105 L. T. 747 ; 56 S. J. 72
— Swinfen Eady, J.
Obligation to "make up" the Capital Held
by Trustees to a Certain Sum — Whether
Trustees Entitled to Receive Capital Sum
Free of Death Duties.] — A father was a party
1409
SETTLEMENT.
1410
to his son's marriage contract, which provided
that a sum of 30,000L should be vested in the
trustees, to be made up as follows : First,
by an immediate payment by the father of
20,000/. ; secondly, by the appointment of the
son to a share of a fund life-rented by the
father, valued at the date of the con-
tract at 6,250Z., but whose actual value
could not be ascertained until the termina-
tion of the life-rent; and thirdly, by an
obligation undertaken by the father binding
his executors to pay to the trustees the sum
of 3,750Z., or such other sum more or less as
should " make up the sum of 30,O0OL to be
received by the trustees " : — Held, that the
father's obligation did not bind his estate to
make good the total sum of 30,OOOZ. free of all
Government duties. Dundas' Trustees v.
Dundas' Trustees, [1912] S. C. 375— Ct. of
Sess.
Effect of Divorce — Property Coming to Wife
after Decree Nisi but before Decree Absolute.]
— A husband and wife by a marriage settle-
ment covenanted to settle any property of the
value of 200L or upwards which the wife, or
the husband in her right, should at any time
become possessed of during the then intended
coverture. A decree nisi for the dissolution of
the marriage was pronounced ; but pending the
decree being made absolute the wife became
entitled under the will of her mother to pro-
perty exceeding the value of 200L : — Held,
that the property came to the wife during the
coverture and so was affected by the covenant
in the settlement. Sinclair v. Fell, 82 L. J.
Ch. 105; [1913] 1 Ch. 155; 108 L. T. 152;
57 S. J. 145; 29 T. L. R. 103— Warrington, J.
Hulse V. Hulse (40 L. J. P. 51 ; L. R. 2 P. &
D. 259) and Korman v. Villars (46 L. J. Q.B.
579; 2 Ex. D. 359) applied. Pearson's Trusts,
In re (26 L. T. 393; 20 W. R. 522). was in
effect overruled by Norman v. Villars (supra).
lb.
II. EXECUTED SETTLEMENTS.
1. Property Settled.
See also Vol. XII. 917, 1506.
Power of Appointment — Trust for Children
in Default of Appointment — Forfeiture of Life
Interest by Bankruptcy — Destination of
Income until Appointment.] — Under a mar-
riage settlement trust funds were settled upon
the husband for life or until bankruptcy and
subject thereto as he should appoint, and in
default of appointment to the children of the
marriage. The husband became bankrupt and
had made no appointment. There were three
children of the marriage, one of whom had
issue : — Held, that a trust to accumulate
income could not be read into the settlement,
and therefore that until an appointment by
the husband the income during the residue
of his life went to the children of the
marriage. Master's Settlement, In re, 80 L. J.
Ch. 190; [1911] 1 Ch. 321; 103 L. T. 899;
55 S. J. 170— Eve. J.
Declaration of Trust— Farms— " Live and
dead stock " — Whether Stud of Racehorses
Included.]— A settlor, who had resettled his
estates, made by a subsequent deed a declara-
tion of trust that the trustees should be
entitled to " the whole of the live and dead
stock " to be found at his death on certain
farms, and he afterwards removed to these
farms a stud of thoroughbred racehorses. At
the time of his death certain thoroughbred
stock was on the farms : — Held, that the race-
horses did not pass under the deed, as it must
be construed as relating only to stock found
in the ordinary way on the farms carried on
as agricultural holdings. Cadogan Settled'
Estates, In re; Richmond and Gordon {Duke)
V. Cadogan, 31 T. L. R. 536— Eve, J.
2. Limitations akd Interests Created by.
a. For Children.
See also Vol. XII. 956, 1511.
Settlement of Fund — Hotchpot Clause —
After-acquired Property Clause — Trusts by
Reference to those of Settled Fund — Treating
Funds as Distinct for Purposes of Hotchpot
Clause.] — Hy a marriage settlement a sum of
15,000L belonging to the w'ife was settled on
trust for the wife during the joint lives of
herself and the husband and for the survivor
for life, and on the death of the survivor on
trust for the children of the marriage as the
husband and wife or the survivor should ap-
point, and in default of appointment on trust
for the children at twenty-one or marriage
provided that no child who should take any
part of " the said trust premises " under any
appointment should be entitled to any share
of the unappointed part without bringing the
appointed part into hotchpot. In a later part
of the settlement there was a provision for
the bringing into settlement of the wife's other
or after-acquired property, which was to be
held on the trusts of the 15,000L There was
no express indication whether for the purposes
of the hotchpot clause the 15,000/. and the
property coming in under the after-acquired
property clause were to be considered as one
fund. There was a provision excepting from
the after-acquired property clause property
which, if taken by the wife, would go in satis-
faction of the 15,000/. under the provisions of
the instrument under which she took that sum.
The husband and wife appointed the 15,000/.
to a daughter on her marriage. A considerable
amount of property had become subject to the
settlement under the after-acquired property
clause, and of this no appointment had been
made : — Held, on the construction of the settle-
ment, that the parties considered the funds to
be distinct; that, apart from this, the Court
could not treat them as amalgamated for the
purposes of the hotchpot clause, since to do so
would modify the trusts of the 15,000/. ; and
that the daughter was not bound to bring
the 15,000/. into account in the division of
the unappointed property. Cavendish Settle-
ment, In re; Grosvenor v. Butler (No. 2),
81 L. J. Ch. 400: [1912] 1 Ch. 794 ; 106 L. T.
510; 56 S. J. 399— Parker, J.
Bristol (Marquis) Settlement, In re; Grey-
(Earl) V. Grey (66 L. J. Ch. 446; [1897]
1 Ch. 946), followed. Perkins, In re: Perkins
45
1411
SETTLEMENT.
1412
V. Bagot (67 L. T. 743; 41 W. R. 170), dis-
tmguished. lb.
Treating Original Settled Funds as Aug-
mented by After-acquired Property for Pur-
poses of Hotchpot Clause.] — By a marriage
.settlement certain funds were settled, subject
to the life interests of the husband and wife,
in trust for the children of the marriage as the
husband and wife should jointly appoint, and
in default as the survivor should appoint,
and in default in trust for the children of the
marriage in equal shares at twenty-one or
marriage, provided that no child who should
take any part " of the said trust funds " under
any appointment should be entitled to any
share of the unappointed part without bring-
ing the appointed part into hotchpot. The
settlement contained a covenant to settle all
after-acquired property to which the wife
might become entitled, and the same was to
be held upon such trusts, intents, and pur-
poses, and subject to such of the powers, pro-
visos, agreements, and declarations as had
been declared by the settlement concerning the
wife's fund. There were seven children of the
marriage. In 1899 a joint appointment was
made in favour of five of the seven children.
Subsequently to this appointment a consider-
able sum of money became subject to the
settlement under the after-acquired property
clause, and both husband and wife died with-
out having appointed this money and without
having revoked or altered the appointment of
1899 -.—Held, that the settled funds and the
after-acquired property fund must be treated
as amalgamated and the hotchpot clause as
applicable to both, and that the five appointees
must bring their appointed shares into hotch-
pot before sharing in the unappointed money.
Fraser Settlement, In re; Ind v. Fraser,
82 L. J. Ch. 406 ; [1913] 2 Ch. 224 ; 108 L. T.
960; 57 S. J. 462— Sargant, J.
Perkins, In re; Bagot v. Perkins (62 L. J.
Ch. 531; [1893] 1 Ch. 283), followed. North,
In re; Meates v. BisJwp (76 L. T. 186), Bristol
(Marquis) Settlement, In re; Grey (Earl) v.
Grey (66 L. J. Ch. 446; [1897] 1 Ch. 946),
Cavendish Settlement, In re; Grosvenor v.
Butler (81 L. J. Ch. 400; [1912] 1 Ch. 794),
and Wood, In re ; Wodehousev. Wood (82 L.J.
Ch. 203; [1913] 1 Ch. 303), distinguished. 7b.
Limited Owners with Powers of Tenant for
Life — Executors of Deceased Owner.] — A tes-
tator gave his real and personal estate to
trustees on trust to pay the income arising
therefrom in equal shares to his children, and
in the event of a child dying without issue, to
divide his or her share of the income between
the surviving children and the children of
deceased children, who were to have their
parents' shares. On the death of the last sur-
vivor of the children he directed the trustees
to divide his estate in equal shares between
his grandchildren or their descendants. A
child of the testator dying leaving issue, —
Held, that the child's share was payable to
her executors till the death of the last sur-
viving child. Also held, that the surviving
children and the executors of the deceased
child had the powers of a tenant for life with
regard to the real estate. Johnson, In re;
Johnson v. Johnson, 83 L. J. Ch. 758; [1914]
2 Ch. 134; 58 S. J. 611— Warrington, J.
"Eldest son" — Exclusion of — Who
Intended — Younger Son becomes Tenant for
Life.] — The estate of an eldest son who
attained the age of twenty-one years, but died
a bachelor and intestate, in the lifetime of his
father, and without having executed any dis-
entailing assurance of the family property,
was held entitled to share in the funds of the
personalty settlement which were held by the
trustees, in default of appointment, " upon
the trusts following (that is to say), if there
shall be but one child of the said intended
marriage (other than such eldest or only son
as aforesaid), in trust for that one child to be
an interest vested in such child being a son at
the age of twenty-one years or being a
daughter at the age of twenty-one years or
day of marriage which shall first happen.
And if there shall be two or more children of
the said intended marriage other than such
eldest or only son as aforesaid then in trust
for such two or more children in equal
shares." Cavendish Settlement, In re; Gros-
venor V. Butler (No. 1), 56 S. J. 344—
Parker, J.
Younger Children — Estate Tail Barred by
Eldest Son — Portions — Younger Son becoming
Eldest Son — Exclusion,] — By a marriage
settlement real estate was limited to uses
imder which W. became tenant for life with re-
mainder to his first and other sons in strict
settlement. By a settlement of personalty
made on the same day it was declared that
after the death of W. and his intended wife
the trustees should stand possessed of the
trust funds in trust for the children of the
marriage " other than an eldest or only son
or other son who before attaining the age of
twenty-one years shall be or become the heir
male or heir male apparent or" W., as W.
and his wife should appoint. W.'s eldest son,
who attained twenty-one, disentailed and re-
settled the estate and died before coming into
the estate, so that a younger son, who attained
twenty-one before the eldest son died, even-
tually succeeded to the estate : — Held, that
the younger son was not excluded from a share
in the settled personalty. Wrottesley's
Settlement, In re; Wrott'esley v. Fowler,
80 L. J. Ch. 457 ; [1911] 1 Ch. 708; 104 L. T.
281 -Parker, J.
b. Life Interests.
See also Vol. XII. 992. 1518.
Successive Life Interests — Income Declined
by First Life Tenant — Claim to Receive In-
come after Death of Second Life Tenant-
Consideration — Voluntary Renunciation —
Right to Retract Refusal.] — A tenant for life
of a fund settled by will who has voluntarily
declined to receive the income in order that
it may be enjoyed by a second tenant for life,
and at the death of the second life tenant
claims to retract her refusal and to be paid the
income, is entitled to do so when her previous
refusal has not changed the position of the
parties ; she has received no consideration for
1413
SETTLEMENT.
1414
temporarily relinquishing her interest, the
fund has not been dealt with, and nobody is
injured by her previous action. Young, In re;
Eraser v. Young, 82 L. J. Ch. 171; [1913]
1 Ch. 272; 108 L. T. 292; 57 S. J. 265;
29 T. L. R. 224— Swinfen Eady, J.
c. Estates in Realty.
See also Vol. XII. 998, 1520.
Rule in Shelley's Case — Deed — Gift to A and
his Heir-at-Law — Heir-at-Law to take Life
Estate — Resulting Use in Favour of Settlor.]
—The rule in Shelley's Case (1 Co. Eep. 936)
does not apply to a grant by deed to A and his
heir-at-law. Davison's Settlement, In re;
Davison v. Muyiby, 83 L. J. Ch. 148 ; [1913]
2 Ch. 498; 109 L. T. 665; 58 S. J. 50—
Warrington, J.
Legal Interests in Settled Realty — Omission
of Words of Inheritance — No Evidence of
Intention Dehors the Deed.] — By marriage
settlement executed in 1843, reciting (inter
alia) that the intended husband had agreed
to make a suitable provision for the issue of
the marriage and that he was to receive with
his intended wife a marriage portion, certain
lands, held under lease for ever, were (with
others held for estates pur autre vie) conveyed
to trustees and the survivor of them and the
heirs of the survivor upon trust to permit the
principal settlor to receive the rents and pro-
fits of the portion of the said lands conveyed
by him for his life, then to permit the husband
to receive the rents and profits of the whole
for his life, then, subject to a jointure for the
wife in case she survived, upon trust to per-
mit the issue male, if any, of the intended
marriage to receive the rents and profits in
such shares as the husband, or the wife in
case she survived him, should appoint, and in
default of appointment, to permit the first and
every other son and sons of the husband to
receive the rents and profits in tail male
according to seniority, and, in default of issue
male, upon trust to permit the issue female,
if any, of the intended marriage to receive the
rents and profits in such shares as the husband
or the wife, in case she survived him, should
appoint, and, in default of appointment, to
permit the issue female, if any, to receive the
rents and profits as tenants in common and
not as joint tenants, and, in default of all
such issue, then upon trust to permit the right
heirs of the husband to receive the rents and
profits for ever. There was only one child
issue of the marriage, a daughter, who duly
entered into possession under the settlement,
and subsequently sold the lands under the
Land Purchase Acts. On a question arising
as to the nature of the interest taken by the
vendor : — Held, that from the provisions of
the settlement it was clearly the intention of
the parties that, in default of appointment,
the issue female should take estates in fee-
simple, and that the settlement should be
treated as rectified accordingly, and the
residue of the purchase money paid out to the
vendor. David's Estate, In re, [1912]
1 Jr. R. 516— Wylie, J.
Conveyance to Trustee of Equitable In-
terest in Freeholds, Copyholds, and Personalty
Liable to be Laid out in Land — No Words of
Limitation in Settlement.] — The rule that in
an executed document the same words of
limitation are necessary to convey an equit-
able estate in fee-simple as are necessary to
convey a legal estate in fee-simple does not,
having regard to the provisions of section 71
of the Fines and Recoveries Act, 1833, apply
to personalty subject to a trust for investment
in land ; and the law was not altered in this
respect by section 22, sub-section 5 of the
Settled Land Act, 1882. Observations on that
sub-section. Monckton's Settlement, In re;
Monckton v. Monckton, 83 L. J. Ch. 34;
[1913] 2 Ch. 636 ; 109 L. T. 624 ; 57 S. J. 836
— Sargant, J.
By a settlement of 1908 a contingent equit-
able estate in fee-simple in freeholds, copy-
holds, and investments, and moneys held on
the same trusts as capital moneys arising
under the Settled Land Act, 1882, from the
freeholds, was conveyed to a sole trustee with-
out words of limitation, the habenduin being
obviously defective ; though words of limitation
occurred in the declaration of the beneficial
interests. The trustee died in 1913 : — Held,
that, as regarded the freeholds and, in the
absence of any special custom, the coi^yholds,
the trustee took a life estate only, and the
limitations of the settlement had therefore
determined. Irwin, In re; Irwin v. Parkes
(73 L. J. Ch. 832; [1904] 2 Ch. 752), fol-
lowed, lb.
But held that, as regarded the investments
and moneys, the trusts of the settlement were
still subsisting. lb.
Equitable Fee-simple — Intention — Per-
sonalty.] — Although an equitable fee-simple
does not pass as a rule without proper words
of limitation, the intention of the whole deed
must be taken into consideration, and accord-
ingly, where the personalty was passed
absolutely by the gift in the deed, the Court
held that an intention had been shewn to pass
the equitable fee-simple in the realty.
Nutt's Settlement, In re: McLaughlin v.
McLaughlin, 84 L. J. Ch. 877; [1915] 2 Ch
431 ; 59 S. J. 717— Neville, J.
Equitable Interests in Estate pur Autre Vie
— Implication of Cross-remainders — Settlement
Created by Deed.] — Where by a settlement
created by deed, even where the trusts are
executed, equitable interests in a term pur
autre vie are limited to several persons as
tenants in common in quasi-ta.'i\ , cross-remain-
ders in quasi-tail will be implied among them,
if an intention to limit such interests suffi-
ciently appears on the face of the instrument.
Battersby's Estate. In re. [1911] 1 Ir. R. 453
—Wylie, J.
e. Portions. See Portions.
III. ACTION BY MARRIED WOMAN EN
RESPECT OF SETTLED PROPERTY.
Property Assigned to Trustees for Use of
Wife — Detention by Husband — Action by
Wife in Her Own Name — Non-joinder of
1415
SETTLEMENT— SHIPPING.
1416
Trustees as Plaintiffs.] — A married woman
can maintain an action in detinue in her own
name against her husband, in respect of pro-
perty assigned by him under a marriage settle-
ment to trustees to hold for her use during
her life, without the joinder of the trustees as
plaintiffs. Healey v. Healey, 84 L. J. K.B.
1454; [1915] 1 K.B. 938; 113 L. T. 694—
Shearman, J.
IV. VARIATION ON DIVORCE OR
DISSOLUTION OF MARRIAGE.
See Husband and Wife.
SETTLEMENT ESTATE
DUTY.
See REVENUE.
SHERIFF.
See EXECUTION.
SETTLEMENT OF
PAUPERS.
See POOR LAW.
SETTLEMENTS,
FRAUDULENT AND VOID.
See BANKRUPTCY.
SEWERS AND DRAINS.
See LOCAL GOVERNMENT ;
METROPOLIS.
SEXTON.
See ECCLESIASTICAL LAW.
SHELLEY'S CASE,
RULE IN.
See SETTLEMENT.
SHIPPING.
(Including MARINE INSURANCE.)
A. SHIPPING.
I. Registration, 1418.
II. Owners, 1418.
III. Master, 1418.
IV. Seamen.
1. Wages, 1420.
2. Distressed Seaman, 1423.
3. Desertion, Misconduct, and Forfeiture,
1423.
4. Determination of Disputes between
Owner and Seaman, 1423.
V. Pilot and Pilotage, 1424.
VI. Charterparty.
1. The Contract.
a. Parties, 1425.
b. Generally.
i. Form and Construction, 1427.
ii. Hire — Payment and Duration
of, 1430.
2. Exemptions from Liability, 1433.
3. Provisions as to Bills of Lading and
other Documents, 1435.
4. Performance, 1435.
VII. Bills of Lading.
1. Construction, 1437.
2. Effect of, 1440.
3. Exemption from Liability.
a. Seaworthiness, Warranty, 1442.
b. Fire, 1443.
c. Restraints of Princes, 1445.
d. Other Exceptions, 1446.
4. Indorsement, Assignment, and Trans-
fer, 1449.
VIII. Freight, 1449.
rx. Demurrage.
1. Time and Calculation of Days, 1451.
2. Place, 14.54.
3. Loading and Discharging ; Rules of
Port, 1456.
4. Causes of Delay.
a. Strikes, 1457.
b. Other Causes, 1459.
5. Rate of Payment, 1462.
X. Cargo.
1. Loading, 1462.
2. Loss by Fire, 1464.
3. Delivery and Discharge, 1466.
XI. Average, 1471.
1417
SHIPPING.
1418
Xn. Salvage.
1. Generally, 1472.
2. Salvage or Towage, 1472.
3. Salvage or Pilotage, 1474.
4. Who are Entitled to Salvage, 1475.
5. Award, 1475.
6. Practice, 1476.
XIII. Towage, 1476.
XrV. Collision.
1. Negligence, 1479.
2. Presumption of Fault, 1480.
3. Liability, 1481.
4. Damages, 1481.
5. Division of Loss, 1485.
6. Limitation of Liability, 1488.
7. Tug and Toiw, 1489.
8. Compulsory Pilotage, 1489.
9. The Regulations, 1493.
10. Local Rules.
a. Manchester Ship Canal, 1504.
b. Mersey, 1504.
c. Tees, 1505.
d. Thames, 1506.
11. Practice.
a. Time Within which Action must
be brought, 1508.
b. Pleadings, 1508.
c. Mode of Trial, 1510.
d. Bail, 1510.
e. Discovery, 1510.
/. Costs, 1510.
XV. Passenger Ships, 1511.
XVI. Marine Office Superintendent, 1512.
XVII. Ports, Harbours and Docks.
1. Ports, 1512.
2. Harbours and Docks, 1514.
XVIII. Wrecks, 1519.
XrX. Admiralty Law and Practice, 1520.
B. MARINE INSURANCE.
I. Policies.
1. Stamping and Requirements, 1522.
2. Re-insurance , 1523.
II. Duration of Risk, 1528.
m. Nature of Risk.
1. Perils of the Sea.
a. Injury Consequential on, 1529.
b. Collision, 1530.
2. Restraint and Detention, 1531.
3. Capture and Seizure, 1532.
4. Other Risks, 1534.
IV. Interest of Assured, 1535.
V. Concealment and Misrbpresent.\tion, 1537.
VI. " Held Covered " Clause, 1539.
VII. Losses, 1539.
Vin. Assignment, 1543.
IX. Subrogation, 1543.
X. Insurance Brokers. 1544.
A. SHIPPING.
I. REGISTRATION.
See also Vol. XIIL 28, 1985.
Ship "constructively lost."] — A ship which
is a "constructive total loss" within the
meaning of the expression in marine insurance
is "constructively lost" within the meaning
of section 21 of the Merchant Shipping Act,
1894, and by the operation of that section as
amended by the Merchant Shipping Act, 1906,
it ceases to be a registered ship. Manchester
Ship Canal Co. v. Horlock, 83 L. J. Ch. 637;
[1914] 2 Ch. 199 ; 111 L. T. 260 ; 12 Asp. M.C.
516; 58 S. J. 533; 30 T. L. R. 500— C.A.
II. OWNERS.
See also Vol. XIIL 40. 1986.
Fishing Boat — Dispute between Seaman and
Owner — Determination by Deputy Superin-
tendent of a Marine Office.] — A deputy
superintendent duly appointed has the same
power of hearing and determining a dispute
between the owner of a fishing boat and a
seaman of the boat, under section 387, sub-
section 1 of the Merchant Shipping Act, 1894,
with regard to the matters therein specified,
as are thereby conferred on a superintendent.
Mayhem v. Tripp, 83 L. J. K.B. 778; [1914]
2 K.B. 455; 110 L. T. 1002; 12 Asp. M.C. 505
— D.
III. MASTER.
See also Vol. XIIL 80, 1990.
Neglect of Duty — Omission to do Lawful
Act Proper for Preserving Ship from Imme-
diate Loss — Improper Look-out.] — The
" neglect of duty " referred to in section 220
of the Merchant Shipping Act, 1894, does not
refer to the negligent performance of duty,
but to the omission to perform the dutv at all.
Deacon v. Evans, 80 L. J. K.B. 385; [1911]
I K.B. 571; 104 L. T. 99; 75 J. P. 162;
II Asp. M.C. 550— D.
The master of a ship placed himself as
look-out in a position from which any vessel
within the half-mile area immediately in front
of the stem was invisible to him, and through
negligence or some other unexplained cause
failed to notice the presence of another ship
within a four and a half miles area immedi-
ately beyond the said half-mile area, with the
result that the ships collided -.—Held, that the
master had not by neglect of duty omitted to
do a lawful act — namely, place a look-out man
in such a position as to be able to see at least
one point on either side of the bow— proper and
requisite to be done by him for preserving the
ship from immediate loss, damage, or destruc-
tion within the meaning of section 220 of the
Merchant Shipping Act, 1894. 7b.
River Thames — "Master" — "Shall be on the
bridge."]— Article 14 of the Thames By-laws,
1898, which provides that " the master of
every steam vessel navigating the river shall
be ... on the bridge," must be construed
with regard to the definition of " master " in
1419
SHIPPING.
1420
article 4 as " the owner, master or other
person . . . having or taking the command,
charge or management of the vessel." And
when a vessel is in charge of a compulsory
pilot, article 14 does not forbid the voluntary
but temporary absence of the master of the
vessel from the bridge, when another com-
petent officer is stationed there, and there
are no special circumstances of difficulty, and
no special matters within his knowledge of
which he ought to be ready to inform the
pilot. The Umsinga, 80 L. J. P. 90; [1911]
P. 234; 27 T. L. K. 439— Evans, P.
Fine Imposed on Master — " Expense
caused ... by the absence of the seaman "
— Deduction of Fine from Wages Due to
Seaman.^ — A Chinaman serving as a seaman
on a British ship deserted from the ship and
entered the Commonwealth of Australia, leav-
ing behind on board certain effects and wages
due to him. The master of the ship was fined
under section 9 of the Immigration Restriction
Acts, 1901-1905, for permitting a prohibited
iminigrant to enter the Commonwealth : —
Held, that the fine and the cost of the cable
home to the owners of the ship in respect
thereof were not " expenses caused to the
master or owner of the ship by the absence
of the seaman " within section 28, sub-sec-
tion 1 (b) of the Merchant Shipping Act, 1906,
or " expenses caused by the desertion to the
master or owner of the ship " within section 232
of the ^lerchant Shipping Act, 1894. and that
therefore the master was not entitled to be
re-imbursed out of the wages and effects of the
Chinaman the amount of such fine and the
cost of the cable home. Halliday v. Taffs,
80 L. J. K.B. 388; [1911] 1 K.B. 594;
104 L. T. 188; 11 Asp. M.C. 574; 75 J. P.
165 ; 27 T. L. K. 186— D.
Re-imbursement of "the expenses caused by
the desertion to the master."] — The expenses
which the master of a ship is entitled, under
section 232 of the Merchant Shipping Act,
1894, and section 28 of the Merchant Shipping
Act, 1906, to be re-imbursed out of the wages
or effects of a seaman who has deserted are
confined to the expenses that are directly
caused to the master or owner of the ship
by the desertion, such as the excess of wages
paid to a substitute engaged in place of the
deserter at a higher rate of wages than that
stipulated to be paid to the deserter, and
other expenses due to the desertion, but they
do not include damages for the detention of
the ship bv reason of the desertion. Deacon v.
Quayle; Neate v. Wilson, 81 L. J. K.B. 409;
[1912] 1 K.B. 445 ; 106 L. T. 269 ; 76 J. P. 79 ;
12 Asp. M.C. 12.5— D.
In determining whether any excess of wages
has been paid by the master to the substitutes
engaged in place of the deserters, an account,
extending over the whole voyage, of the wages
actually paid by the master as compared with
the wages the master would have had to pay
but for the desertion is not required to be
taken, but merely an account extending over
the period during which wages were paid to
the substitutes engaged in place of the
deserters, so that a master is entitled to be
re-imbursed the excess of wages paid to the
substitutes notwithstanding that there has
been a saving of expenses through the non-
engagement of substitutes for a certain period
of time after the desertion. lb.
IV. SEAMEN.
1. Wages.
See also Vol. XIII. 106, 1993.
Foreign-going Ship — Voyage "to end at
such port in the United Kingdom or Continent
of Europe (within home trade limits) as may
be required by the master " — Complete Dis-
charge of Cargo at Port within Home Trade
Limits — Arrival of Ship at Port in United
Kingdom — Bunkering for Another Yoyage —
Ship Required by Master to go to Another
Port within Home Trade Limits.] — By an
agreement a crew was engaged on a voyage
within specified limits of time and space,
which was " to end at such port in the United
Kingdom or Continent of Europe within home
trade limits as may be required by the master."
\Yithin the prescribed limits the ship arrived
at Rotterdam, a port within home trade limits,
where she finished discharging her cargo. The
ship then proceeded to the Tyne, where she
took on board 1,.300 tons of bunker coals for
another voyage. One of the seamen then
claimed his discharge and wages on the ground
that the voyage had ended there. The master
refused to discharge the seaman upon the
ground that the voyage was not completed,
and subsequently required the crew to take
the ship to Glasgow : — Held, that the fact that
the ship took on board bunker coal to be used
upon a subsequent voyage was not of itself
sufficient to bring the voyage to an end, and
that consequently the seaman was not entitled
to his discharge in the Tyne. Haylett v.
Tliompsoji, 80 L. J. K.B. 267; [1911] 1 K.B.
311 ; 103 L. T. 509 : 74 J. P. 480 ; 11 Asp. M.C.
512— D.
Signed Agreement for Wages — Oral Agree-
ment for Payment of Extra Monthly Sum —
Whether Extra Sum Recoverable.] — The plain-
tiff, who was a ship's steward, signed an
agreement under sections 113 and 114 of the
Merchant Shipping Act, 1894, by which his
wages were to be iOZ. per month. For one or
two voyages he was also allowed a commission
of 5 per cent, upon the profits made by the
bar of which he was in charge. The super-
intendent steward thereafter arranged with
him that, instead of receiving a commission
of 5 per cent, on the bar profits, he should be
paid, in addition to his wages, a fixed sum
of 5L per month. This arrangement was not
inserted in the agreement signed by the plain-
tiff. In an action by the plaintiff claiming
lOi., being the amount of such extra payment
of 5L for two months, the jury found that there
was an agreement under which the plaintiff
was to be paid the extra sum of 51. per month :
— Held, that as the jury found that the 51. per
month was due contractually, it was part of
the plaintiff's wages and ought to have
appeared in the agreement signed by him ; and
that as it did not so appear he was not entitled
to recover. Thompson v. Nelson, Lim.,
1421
SHIPPING.
1422
82 L. J. K.B. 657; [1913] 2 K.B. 523;
108 L. T. 847; 12 Asp. M.C. 351 ; 29 T. L. R.
422— D.
Termination of Service by Reason of
Wreck.] — An Atlantic liner left Southampton
on September 20 on a voyage to New York,
and shortly afterwards came into collision with
another vessel. In consequence of the damage
thereby caused to her she returned on the next
day under her own steam to Southampton, and
discharged her passengers and cargo, and after
receiving temporary repairs there she pro-
ceeded to Belfast, and was there thoroughly
repaired, and on November 29 she was able
to proceed to sea. The owners having on Sep-
tember 22 discharged the crew and tendered
them three days' wages, two members of
the crew commenced proceedings against the
owners claiming, under section 162 of the
Merchant Shipping Act, 1894, one month's
wages as compensation for the damage caused
to them by being improperly discharged.
The plaintiffs had on September 16 signed
articles by which they were to serve on board
the ship for a voyage from Southampton to
New York or other Atlantic ports trading as
might be required until the ship returned to a
final port of discharge in the United Kingdom
for any period not exceeding twelve months,
at monthly wages, and they had joined the
ship on September 20. The defendants relied
on section 158, which provides that " Where
the service of a seaman terminates before the
date contemplated in the agreement by reason
of the wreck or loss of the ship ... he shall
be entitled to wages up to the time of such
termination, but not for any longer period." :
— Held (Kennedy, L.J., dissenting), that, in-
asmuch as the ship had by the damage caused
to her by the collision been rendered incapable
of continuing her voyage, the service of the
plaintiffs had been terminated by reason of
the wreck of the ship, and therefore the de-
fendants were entitled to judgment. The
Olympic, 82 L. J. P. 41; [1913] P. 92;
108 L. T. 592; 12 Asp. M.C. 318; 57 S. J.
388; 29 T. L. R. 335— C.A.
Suing for Wages in Court of Summary
Jurisdiction — Decision " shall be final " —
Appeal by Special Case.] — By section 164 of
the Merchant Shipping Act, 1894 (57 & 58 Vict.
c. 60), it is provided that " a seaman or
apprentice to the sea service, or a person duly
authorised on his behalf, may, as soon as any
wages duo to him, not exceeding fifty pounds,
become paj'able, sue for the same before a
court of summary jurisdiction in or near the
place at which his service has terminated, or
at which he has been discharged, or at which
any person on whom the claim is made is or
resides, and the order made l)y the court in
the matter shall be final." Certain seamen
made claims upon the appellants, who were
shipowners, for extra wages which had been
promised to them liy the captain of one of the
ships of the appellants during the time that
the aliip was journeying from a foreign port,
to Southampton, and the Justices of South-
ampton allowed the claims. Upon the applica-
tion of the respond('nts, however, the Justices
agreed to state a Special Case for the con-
sideration of the High Court : — Held, following
the case of Westminster Corporation v. Gordon
Hotels (77 L. J. K.B. 520; [1908] A.C. 142),
that the judgment given by the Justices was
final, and that tliere was no power to state a
Case. Wills v. McSherry, 83 L. J. K.B. 596;
[1914] 1 K.B. 616; 110 L. T. 65; 78 J. P.
120; 12 Asp. M.C. 426— D.
Declaration of War During Yoyage — War
Risk — Refusal to Continue Voyage — Addi-
tional Remuneration — Implied Authority of
Master to Bind Owners.] — If circumstances
arise during a voyage which were not in the
contemplation either of the owners of the
vessel or of the crew at the time the agreement
of service was entered into — such as a declara-
tion of war — and as a result the crew have
reasonable cause for apprehending danger to
life and limb, they are entitled to demand
extra remuneration as a condition of continu-
ing the voyage, and the master of the vessel
has, in order to retain the services of the crew,
implied authority from the owners to enter into
an agreement on their behalf with the crew
for the payment of such additional remunera-
tion. Liston V. " Carpathian " (Owners),
84 L. J. K.B. 1135; [1915] 2 K.B. 42;
112 L. T. 994; 20 Com. Cas. 224; 31 T. L. R.
226— Lord Coleridge, J.
Detention of Ship in Enemy Port on Out-
break of Hostilities — "Loss" of Ship —
Termination of Services of Seaman.] — By
article 1 of the Hague Convention (No. VL),
1907, where a merchant ship is in an enemy
port at the outbreak of hostilities, " it is
desirable " that it should be allowed to leave.
By article 2, a ship unable to avail itself of
this opportunity or not allowed to leave may
not be confiscated, but may be detained by
the enemy without compensation until the
close of the war, or may be requisitioned by
the enemy on payment of compensation. The
defendant's ship was detained at Hamburg
and not requisitioned on the outbreak of the
war with Germany, and the crew interned : —
Held, by the Court of Appeal (Swinfen Eady,
L.J., and Bankes, L.J. ; Phillimore, L.J.,
dissenting), affirming the decision of Rowlatt,
J., that the service with the defendant of
the plaintiff's husband, one of the crew, was
not terminated by reason of the " loss " of
the ship within the meaning of section 158
of the Merchant Shipping Act, 1894, and that
consequently the plaintiff, a person in whose
favour an allotment note had been made by
her husband, was entitled to recover from the
defendant the sum allotted thereby out of her
husband's wages in respect of the period sne-
ceeding the detention of the ship. Beal v.
Horlock, 84 L. J. K.B. 2240; [1915] 3 K3.
627 ; 59 S. J. 716 ; 31 T. L. R. 619— C.A.
Overtime — Right to Extra Wages.] — A sea-
man is liDund to give his full services in return
for the wages agreed to be paid in his articles,
and he cannot recover for overtime. Harrison
V. Dodd, 111 L. T. 47; 78 J. P. 206;
12 Asp. M.C. 503; 30 T. L. R. 376— D.
Deductions from Seamen's Wages. 1 — See
Hallidaii v. Taffs and Deacon v. Quayle, ante,
col. 1419.
1423
SHIPPING.
1424
2. Distressed Seaman.
Maintenance — Disease Due to Seaman's
Misconduct — Medical Expenses — Passage
Money to Return Port — Liability of Ship-
owner.] — ^Yhe^e a seaman belonging to a
British ship, who was without means, was
left behind at a port of the United Kingdom
suffering from venereal disease, and the
expenses of his maintenance and surgical and
medical attendance and of his conveyance to
a return port were defrayed by his Majesty's
Consul at the port, — Held, that the owners of
the ship were liable under the Merchant Ship-
ping Act, 1906, for the expenses of his main-
tenance in the sense of board and lodging, and
for his conveyance home, but not for medical
or surgical expenses. Board of Trade v. Anglo-
American Oil Co., 80 L. J. K.B. 835; [1911]
2 K.B. 22.5 ; 104 L. T. 497 ; 16 Com. Cas. 151 ;
11 Asp. M.C. 599 : 29 T. L. R. 344— Scrutton, J.
3. Desertion, Misconduct, and Forfeitube.
Attempting to Persuade Seaman to Refuse
to Join "his ship" — Seaman Engaged, but
Articles not Signed.]- — C. was engaged at
Whitby by the agent of the British steamship
Japanese Prirtce to serve on board that steamer
as a seaman, and was ordered to go to Middles-
brough to join the ship, the railway fare being
advanced by the owners. C. went on board
the steamer at Middlesbrough and his dis-
charge book was taken and kept by an of&cer of
the steamer. The next day C. was ordered to
go to the Board of Trade offices to sign articles,
and left the steamer with that object. Before
C. signed the articles the appellant approached
him and advised him not to go to sea on board
the Japanese Prince. C. subsequently signed
the articles, but in consequence of the appel-
lant's advice did not proceed to sea, but re-
mained on shore, leaving his discharge book
and kit on board the Japanese Prince : — Held,
that the Japanese Prince was C.'s ship not-
withstanding that he had not signed the
articles, and that therefore the appellant had
been properly convicted under section 236, sub-
section 1 of the Merchant Shipping Act, 1894,
of attempting " to persuade a seaman or
apprentice to neglect or refuse to join or pro-
ceed to sea in . . . his ship." Viclierson v.
Crowe, 83 L. J. K.B. 469; [1914] 1 K.B. 462;
110 L. T. 425 ; 78 J. P. 88 ; 12 Asp. M.C. 446 ;
24 Cox C.C. 122; 30 T. L. R. Ill— D.
4. Determination of Disputes between
Owner and Seaman.
Fishing Boat — Determination by Deputy-
superintendent of a Marine Office.] — A deputy-
superintendent, duly appointed, has the same
power of hearing and determining a dispute
between the owner of a fishing boat and a
seaman of the boat, under section 387, sub-
section 1 of tlie Merchant Shipping Act, 1894,
with regard to the matters therein specified,
as are therebv conferred on a superintendent.
Mayhew v. Tripp, 83 L. J. K.B. 778; [1914]
2 K.B. 455; 110 L. T. 1002 ; 12 Asp. M.C. 505
— D.
V. PILOT AND PILOTAGE.
See also Vol. XIII. 141. 2005.
Ship Navigating within Compulsory Pilotage
District — Ship Stopping Outside Port within
Compulsory Pilotage District for Orders —
Orders taken to her by Boat Coming out of
Port — " Making use of any port in the dis-
trict."]—Under section 11 of the Pilotage Act,
1913, " Every ship (other than an excepted
ship) while navigating in a pilotage district in
which pilotage is compulsory for the purpose
of . . . making use of any port in the district
. . . shall be either — (a) under the pilotage of
a licensed pilot of the district ; or (b) under the
pilotage of a master or mate possessing a
pilotage certificate for the district who is bonu
fide acting as master or mate of the ship." A
ship, which was not an excepted ship, in the
performance of her charterparty had to proceed
to Dover to receive orders as to her port of
discharge. She passed Dungeness and pro-
ceeded to Dover, where she stopped for half an
hour about a quarter of a mile outside the end
of the Admiralty Pier, when a boat came out of
the port with orders for her to proceed to
Hamburg, to which port she immediately pro-
ceeded. The London pilotage district extends
to Dungeness, and the port of Dover is within
that district. Neither the master nor the mate
of the vessel held a pilotage certificate for the
district : — Held, that the ship, by stopping
outside the port of Dover for orders, was
making use of that port within the meaning
of section 11 of the Pilotage Act, 1913, and
was therefore bound, while navigating in the
London pilotage district for which pilotage is
compulsory for the purpose of making use of
a port in that district, to be under the pilotage
of a licensed pilot of the district. Cannell v.
Lawther, Latta <£- Co., 83 L. J. K.B. 1832;
[1914] 3 K.B. 1135; 20 Com. Cas. 29;
12 Asp. M.C. 578; 30 T. L. E. 680—
Bailhache, J.
Delegation by Master of his Duty to Unpaid
Pilot — Contributory Negligence.] — A pilot
allowed to be in control of the plaintiff's ship
by her master for his own convenience negli-
gently ran her ashore off Barry, in the Bristol
Channel. The pilot was a volunteer in the
sense that he was not to be paid for piloting
the ship until she reached Flatholm, which is
beyond Barry. In an action brought by the
shipowners against the pilot, — Held, that
although the pilot was negligent, the master
had no right to give up control of the vessel
to an unpaid pilot, and was guilty of contri-
butory negligence in so doing, and the owners
therefore could not succeed in their action.
The Bonvilston, 30 T. L. R. 311— Bargrave
Deane, J.
Pilot Admitting Liability in Damages to
Several Claimants for Neglect — Limitation of
Liability to a Maximum Sum — Aggregate
Claims Exceeding Maximum Sum — Action by
one of Claimants — Defence — Payment into
Court of Part of Maximum Sum Proportionate
to Claim.] — Where a Trinity House pilot has
admitted his liability to different claimants in
damages for neglect as a pilot, but has not
paid them — his liability being limited by sec-
1425
SHIPPING.
1426
tion 620 of the Merchant Shipping Act, 1894,
to a certain maximum sum, which was less
than the aggregate of the claims — it is not a
defence to an action for the damages by one of
the claimants that the defendant has paid into
Court a sum of money sufficient to meet the
proportionate part of the claim, which on a
division of the above maximum sum amongst
all the claimants according to the amount of
their claims respectively would be due to the
plaintiffs. The Court has no power to receive
and distribute the fund rateably, and the
plaintiffs are entitled to judgment, up to the
maximum, for the full amount of their claim.
Deering v. Targett, 82 L. J. K.B. 85; [1913]
1 K.B. 129; 107 L. T. 709: 12 Asp. M.C. 273;
57 S. J. 113; 29 T. L. B. 100— D.
When Compulsory.] — See post. Collision.
VI. CHAETEEPABTY.
1. The CoNTE.'iCT.
a. Parties.
See al?n Vol. XIII. 230. 2012.
Unseaworthy Ship — Liability of Owners —
Master Servant of Owners.] — The plaintiffs
shipped a cargo of cement on board a ketch for
carriage from Northfleet to Fowey on the
terms of a bill of lading dated June 17, 1913,
which incorporated the conditions of a charter-
party dated June 11, 1913. Both documents
were executed by the master of the ketch, and
contained no reference to the owners. In the
course of the voyage the ketch sank, owing to
its unseaworthy condition. The ketch belonged
to two co-owners, of whom the defendant was
the registered managing owner. There was no
written document in existence containing the
terms on which the ketch was worked, but it
appeared from the evidence that it was worked
on a system of thirds, under which the master
kept two-thirds of the gross freights, and paid
the crew and the costs of provisions and other
expenses. The owners received the remaining
one-third of the gross freights, subject to the
deduction of harbour dues, towage, and
brokerage, and they paid for the upkeep,
repair, and insurance of the ship. The master
engaged the crew, and he usually arranged the
freights w-ithout consulting the owners before-
hand. He could only be dismissed at the end
of a voyage : — Held, that the master was not
a bailee or hirer of the ship, but was the agent
or servant of the owners, and that the defen-
dant was therefore liable to the plaintiffs for
the loss of the cargo of cement. Burnard v.
Aaron (31 L. J. C.P. 334; 9 Jur. N.S. 470)
distinguished. Steel v. Lester (47 L. J. C.P.
43; 3 C.P. D. 121) followed. Associated Port-
land Cement Manufacturers v. Ashton, 84 L. J.
K.B. 519; [1915] 2 K.B. 1; 112 L. T. 486;
20 Com. Cas. 165— C.A.
Decision of Pickford, J. (110 L. T. 776),
reversed. lb.
Sale of Ship before Execution of Contract —
Both Sellers and Buyers of Ship Ready and
Willing to Perform Charterparty— Refusal of
Charterers to Load — Damages."— By a charter-
party of the kind known as a berth contract
made between the claimants, owners of a
ship, and the charterers, it was agreed that
the ship should proceed to a certain port of
loading and there load a complete cargo to
be delivered at a certain port of discharge.
Before the ship reached the port of loading
the claimants sold her to a company with
the benefit of the berth contract, and the
purchasers declared that they accepted the
execution of that contract. Notice was given
on behalf of the claimants to the charterers
that the sale had taken place, and that the
buyers would carry out the terms of the berth
contract with the charterers. The ship was
tendered by the buyers at the port of loading
to the charterers, but they refused to load on
the ground that by the sale of the ship the
claimants had put it out of their power to
perform the berth contract, and that by the
assignment of it their rights under it ceased.
The claimants demanded damages from the
charterers for refusing to load. The matter
came before an umpire, who found as a fact
that the ship was duly tendered under the
berth contract, that the claimants and the
purchasers were always ready and willing to
fulfil that contract, and that the charterers
had been guilty of a breach of contract, for
which he assessed the damages : — Held, by
Court of Appeal, that the findings of the
um.pire meant that the claimants were in fact
able, and were also ready and willing, to
fulfil the berth contract, not merely through
the buyers of the ship, but personally; and
that the charterers were not therefore entitled
to refuse to load, and were liable in damages
to the claimants for such refusal. Sorrentino
V. Buerger, 84 L. J. K.B. 1937; [1915]
3 K.B. 367; 21 Com. Cas. 33— C.A.
Judgment of Atkin, J. (84 L. J. K.B. 725;
[1915] 1 K.B. 307), affirmed. 76.
Sub-charterparty — Loss of Freight by
Collision — Bill of Lading Signed by Sub-
charterers — Right of Sub-charterers to Sue for
Bill of Lading Freight."— The plaintiffs were
the sub-charterers of the Ruggiero de Flores,
which was damaged in a collision due to the
negligent navigation of the defendants" ship.
The owners of the Ruggiero de Flores recovered
from tlie defendants a sum which included an
amount for chartered freight. The present
plaintiffs, who were not parties to the collision
action, now claimed to recover from the defen-
dants the difference between the charterparty
freight and the bill of lading freight, which the
Ruggiero de Flores was in course of earning
at the time the collision took place. By the
charterparty and sub-charterparty, which were
practically in identical terms, the captain was
ti be under the orders of the charterers (or
sub-charterers) as regards employment, agency,
and other arrangements, but the charterers (or
sub-charterers) were to indemnify the owners
from all consequences or liabilities that might
arise from the captain signing bills of lading.
The cargo was shipped by the plaintiffs, and
the mate's receipts were handed to the plain-
tiffs, who signed the bills of lading and gave
the captain orders to deliver the cargo at a
particular port, where, if the collision had not
occurred, it would have been taken delivery of
1427
SHIPPING.
1428
by the plaintiffs' agent : — Held, that the plain-
tiffs had sufficient interest in and possession
of the cargo to enable them to bring the action.
The Okehampton, 83 L. J. P. 5 ; [1913] P.
173; no L. T. 130; 12 Asp. M.C. 428;
18 Com. Cas. 820; 29 T. L. K. 731— C. A.
b. Generally.
i. Form and Coyistruction.
See also Vol. XIII. 236, 2013.
Safe Port.] — A charterparty provided that a
ship should " trade between any safe ports
between Hamburg and Brest and the United
Kingdom." The ship was ordered by the
charterers to go to Craster, a port in the
United Kingdom which was perfectly safe
to make provided the sea were smooth, but
which might become dangerous if a change of
wind altered the conditions. At the time the
vessel was ordered to Craster the sea was
smooth : — Held, that the port was not a safe
port within the meaning of the charterparty.
Johnston v. Saxon Queen Steamship Co.,
108 L. T. 564; 12 Asp. M.C. 305— Eowlatt, J.
The term " port " in a charterparty is to be
taken in a commercial sense and has not the
same meaning as that given to it by pilotage
and revenue Acts. In the case of King's Lynn
it means the dock at that place. The expres-
sion " safe port " in a charterparty means a
port to which a vessel can get laden as she is
and at which she can lay and discharge,
always afloat. Hall Brothers Steamship Co.
V. Paul. Lim., Ill L. T. 811; 12 Asp. M.C.
543; 19 Com. Cas. 384; 30 T. L. R. 598—
Sankey, J.
Charterer to Pay all " dues " — Ship to Pay
all "port charges" — Custom of Port of
Santos.] — A charterparty contained the follow-
ing clause : " The charterer paying all dues
and duties on the cargo, and the steamer all
port charges, pilotages, &c., as customary,"
and also provided that on arrival at Santos
the steamer should discharge on the quay. At
Santos a dock company has authority to en-
force a tariff, being entitled (inter alia) to
make a charge " for the use of the quay for
loading and discharging goods and any mer-
chandise." The plaintiffs' vessel having been
discharged on to the quay, the charterers'
agents at the port of Santos charged against
the ship in accounts rendered the particular
charge for cargo so delivered. In an action by
the shipowners to recover the amount deducted,
— Held, that the charge was not a " due " on
the cargo, but a port charge falling on the
steamer. Societa Anonima Ungherese di Arma-
7nenti Marittimo v. Hamburg South American
Steamship Co., 106 L. T. 957; 12 Asp. M.C.
228; 17 Com. Cas. 216— Hamilton. J.
" Consignees to effect discharge of cargo
steamer paying Is. per ton" — Sale of Cargo
by Consignee — " Cost of stevedoring to be paid
by" Purchaser — Bight to Sum Payable by
Steamer.] — 'i'lic aj)p('llaiit had cliartered a
steamer to load a ciirgo of coal for Sydney.
The charterparty contained the following
clause : " Consignees to effect the discharge of
the cargo, strike or no strike, steamer paying
Is. per ton of 20 cwt." Before the ship
arrived the appellant sold the cargo to the
Government of New South Wales on the terms
(inter alia), " The Government to guarantee
to discbarge the vessel at not less than 500
tons per day, strike or no strike. The cost
of stevedoring to be paid by the Govern-
ment " : — Held, that the Government were
entitled to retain the Is. per ton payable as
against the appellant. White v. Williams.
82 L. J. P.C. 11; [1912] A.C. 814; 107 L. T.
99; 17 Com. Cas. 309; 28 T. L. R. 521— P.C.
" Six or seven consecutive voyages during
1910."] — The plaintiffs chartered a ship under
a charterparty which contained the following
terms : " This charter to remain in force for
six or seven consecutive vo3'ages (in char-
terer's option) during 1910 . . . Steamers
have liberty to load homeward cargoes to
U.K. or Continent. Steamers to have liberty
to dry dock." On the ship's arrival at the
loading port for the first voyage the charterers
were unable to load her owing to a strike,
and, although she arrived on January 3, there
would have been no cargo available until
January 11. The ship accordingly did not
load at that port, but proceeded to South
Wales, where she loaded a cargo, which was
carried to Italy, whence she returned to load
under her original charter. The consequence
was that she did not get home from her sixth
voyage until after January 6, 1911, when the
charterers purported to exercise their option
to load for seven voyages : — Held, that the
words " during 1910 " were words of descrip-
tion and protection for both parties, the one
being only bound to load, and the other only
bound to supply, the steamer during 1910.
Pope V. Bavidge (10 Ex. 73) not followed.
Dunford v. Compania Maritima Union,
104 L. T. 811 ; 16 Com. Cas. 181 ; 12 Asp.
M.C. 32; 55 S. J. 424— Scrutton, J.
Cargo when Signed for to be at Ship's Risk
until Shipped on Board.] — A clause in a
charterparty provided as follows : " The cargo
to be ordered by the captain as required, and
when signed for to be at ship's risk until
shipped on board . . . but in all other
respects, the act of God, perils of the sea . . .
are always mutually excepted." The cargo,
which consisted of sleepers, was brought along-
side the vessel in rafts. A number of the
sleepers were lost after being signed for on
behalf of the shipowner and before they were
shipped on board through perils enumerated in
the exceptions : — Held, that the expression
" at ship's risk " meant that the sleepers were
at the absolute risk of the shipowner during
the period between their being signed for and
their being shipped on board, the excepted
perils not applying to that period owing to
their being prefaced by the words " but in
all other respects." Dampskibsselskahet
" Skjoldborg '' v. Calder, 106 L. T. 263;
17 Com. Cas. 97; 12 Asp. M.C. 156— Bray, J.
War Risks — Contract to Insure — By whom
to be Effected.]— On September 17, 1912, the
defendants chartered a Dutch steamer from the
plaintiff's under a five years' time charterparty
containing the clause, " War risk, if any re-
1429
SHIPPING.
1430
quired, for charterers' account. It is understood
and agreed that value for war risk at all times
to be based on values stated in owners' annual
policy." By further clauses the plaintiffs were
to provide and pay for the ordinary insurance
and nothing in the charterparty was to be
construed as a demise of the steamer, and the
owners were to remain responsible for naviga-
tion, insurance, crew, and all other matters,
as when trading for their own account. The
defendants did not insure the steamer against
war risks, and on September 21, 1914, she
was sunk at sea by a German cruiser when
she was on a voyage under the charter from
Portland, Oregon, with a cargo of wheat for
Ii-eland. In an action by the plaintiffs against
the defendants for failure to insure against
war risks, — Held, that the words " war risks,
if any required, for charterers' account " meant
that the charterers were to bear the cost of
insurance against war risks if such insurance
was reasonably requisite, but the insurance was
to be effected by the owners and not by the
charterers, and therefore the plaintiffs' action
failed. Holland Gulf Stoomvaart Maatschappij
V. Watson, Munro rf- Co., 32 T. L. E. 169—
C.A. Reversing, 113 L. T. 178; 59 S. J. 458
— Bailhache, J.
"Commandeering."] — The plaintiffs, who
were coal merchants, chartered from the
defendant a Greek steamer for the purpose
of carrying coal, the charter providing that
" Should steamer be commandeered by the
Greek Government this charter shall be can-
celled." When the steamer was at Marseilles,
the Greek Government, in consequence of
mobilisation, issued directions to all Greek
steamers at Marseilles laden with -coal to
proceed immediately to the Piraeus. The
defendant thereupon gave notice to the plain-
tiffs that the steamer had been commandeered
and that the charter had come to an end.
Owing to a question of repairs the steamer did
not leave Marseilles immediately, and she was
ultimately released and never left Marseilles.
In an action by the plaintiffs against the
defendant for a declaration that the charter-
party remained valid and binding upon him, —
Held, that in the circumstances the steamer
had been " commandeered " within the mean-
ing of that word in the charterparty, as the
Greek Government had issued directions that
she should make the voyage home for Govern-
ment purposes, and therefore the charterparty
was cancelled. Capel (f Co. v. Souledi,
32 T. L. R. 59— Atkin, J.
" Penalty for non-performance of this agree-
ment, proved damages not exceeding esti-
mated amount of freight " — Penalty not
Limitation of Liability — Right to Sue for
Damages Actually Sustained.] — By a charter-
party dated June 5, 1914, the defendants
agreed to provide the plaintiffs with a ship for
three consecutive voyages from Goole to
Oporto, to carry cargoes of coal at a fixed rate
of freight per ton, the first voyage to begin
in January, 1915. Clause 15 was as follows :
" Penalty for non-performance of this agree-
ment, proved damages not exceeding the
estimated amount of freight." In January,
1915, the defendants refused to carry out the
charter, with the result that the plaintiff was
only able to secure vessels for the second and
third voyages, but at increased freights. The
plaintiff sued the defendants for breach of
contract, claiming as damages the amount of
freight, which he would have had to pay for
the first voyage if he had been in time to
secure a vessel, and the amount of the excess
freights over chartered freight which he had
to pay for the second and third voyages,
together with extra insurance and rail freight
caused by the defendants' breach of contract :
Held, that the clause was a penalty clause
and not a limitation of liability, and that the
plaintiff could effect to claim the actual damage
sustained by him, although exceeding the
amount fixed by the clause. Harrison v.
Wright (13 East, 343) followed. Jureidini v.
National British and Irish Millers Insurance
Co. (84 L. J. K.B. 640; [1915] A.C. 499)
considered. Wall v. Rederiaktiebolaget
Luggude, 84 L. J. K.B. 1663; [1915] 3 K.B.
66; 31 T. L. R. 487— Bailhache, J.
ii. Hire — Payment and Duration of.
See also Vol. XIII. 2015.
Date Specified for Termination of Hire —
Retention of Vessel beyond Date Specified —
Time Essence of Contract.] — By the terms of
a charterparty a vessel was chartered from
May 15-31, 1912, until October 15-31, 1912,
at the rate of 615L per current month, " hire
to continue from the time specified for ter-
minating the charter until her re-delivery to
owners (unless lost) at a port on east coast of
United Kingdom between the 15th and 31st
October, 1912." On October 18, 1912, the
vessed was at West Hartlepool, and upon that
day she was despatched by the charterers on
a voyage from which, to the knowledge of the
charterers, it w"as impossible that she could
return in time to be re-delivered to the
owners by October 31. She was in fact re-
delivered on November 20. The current rate
obtainable for the vessel on October 31 was
9001. per month, and the owner sought to
recover from the charterers damages for
twenty days' detention of the ship calculated
at the difference between the current rate and
the chartered rate for the period in question :
— Held, that the clause in the charterparty set
out above indicated an intention on the part of
the parties to make the time specified in the
charter for the re-delivery of the vessel of the
essence of the contract, and that as she was
not re-delivered by October 31, the charterers
had committed a breach of contract for which
they were liable in damages at the rate
claimed. Watson Steamship Co. v. Merry-
weather, 108 L. T. 1031; 18 Com. Cas. 294;
12 Asp. M.C. 353— Atkin, J.
Loss of Time through Deficiency of Men,
Repairs, &c., Preventing Working of Vessel
for more than Forty-eight Running Hours —
Payment of Hire to Cease until Ship in Effi-
cient State to Resume Service — Deduction of
Hire during the First Forty-eight Hours.] —
A clause iu a charterparty provided that " In
the event of loss of time through deficiency of
men or stores, repairs, breakdown of machin-
1431
SHIPPING.
1432
ery, pumps, pipes, or boilers (whether partial
or otherwise), collision or stranding, or damage
preventing the efficient working of the vessel
for more than forty-eight running hours, the
payment of hire shall cease until she again be
in an efficient state to resume her service."
Time was lost from causes mentioned in the
above clause for more than forty-eight hours :
— Held, that the charterers were entitled to
a cesser of hire for the whole of the time so
lost, and not merely for the excess of that
time over the first forty-eight hours. Meade-
King, Rohinson d Co. v. Jacobs d Co.,
84 L. J. K.B. 1133; [1915] 2 K.B. 640;
113 L. T. 298; 20 Com. Cas. 288; 31 T. L. E.
316— C. A.
Decision of Bailhache, J. (83 L. J. E.B.
1219; [1914] 3 K.B. 156), affirmed. lb.
Time Charter — " Mutual exemptions " —
Strike.] — In a time charterparty it was pro-
vided that " the owners and charterers shall
be mutually absolved from liability in carrying
out this contract in so far as they may be
hindered or prevented . . . through strikes of
any kind." The charterers ordered the ship
to a port at which they knew a strike was
prevailing, and where she stayed for about
two months unable to load coal. The appel-
lants claimed exemption from hire during this
period : — Held (Lord Shaw dissenting), that
the hire was payable inasmuch as the exemp-
tion only applied where a party to the con-
tract was prevented from performing his part
of the contract, which in the charterers' case
was simply to pay the hire. Held also (Lord
Shaw concurring on this point), that the char-
terers were not so prevented, as they might
have taken the ship to a port where there
was no strike. Brown v. Turner, Brightman
<f- Co., 81 L. J. K.B. 387; [1912] A.C. 12;
105 L. T. 562; 12 Asp. M.C. 79; 17 Com.
Cas. 171— H.L. (E.)
Option, when Exercisable — Shipowner's
Right to Call on Charterers to Exercise
Option.] — Under an ordinary cancelling clause
in a charterparty the shipowner cannot require
the charterer to exercise his option whether he
will load or not before the ship has arrived
at the port of loading, although the ship may
be manifestly behind time or although the
date for arrival may be actually past. Moel
Tryvan Steamship Co. v. Weir, 79 L. J.
K.B. 898; [1910] 2 K.B. 844; 103 L. T. 161;
15 Com. Cas. 307 ; 11 Asp. M.C. 469— C. A.
Strike Clause — Charter to be Null and Void
if Stoppage Lasts more than Six Days — Ter-
mination of Strike before Expiration of Six
Days — Effect of Strike Continuing beyond the
Six Days.] — A steamer was chartered to carry
a cargo of coal from the Penarth Docks to
Buenos Aires. The charterparty provided
that " any time lost through riots, strikes,
lockouts, or any disputes between masters and
men occasioning a stoppage of pitmen, trim-
mers, or other hands connected with the
working of the delivery of the coal for which
the steamer is stemmed ... or any cause
beyond the control of the charterers not to be
computed as part of the loading time. ... In
the event of any stoppage or stoppages arising
from any of these causes continuing for the
period of six running days from the time of
the vessel being ready to load this charter
shall become null and void." The steamer
was ready to load in Penarth Dock on April 4,
1912, at 1 P.M. At that time the great
national strike of colliers of 1912 was in full
force, so that no coal arrived at Penarth Dock
for shipment. The strike came to an end on
April 9, but as certain repairing and clearing-
up work had first to be done at the collieries
as a consequence of the strike no coal arrived
at Penarth Docks for shipment by the steamer
until the morning of April 11, more than six
days after she was ready to load. The char-
terers claimed the right to cancel the charter
as the stoppage had continued for six running
days from the time the vessel was ready to
load : — Held, that the charterers were entitled
to cancel the charter, as the stoppage was a
stoppage due to the strike, notwithstanding
that it had continued two days beyond the
time at which the strike itself had come to
an end. Gordon Steamship Co. v. Moxey,
108 L. T. 808; 18 Com. Cas. 170; 12 Asp.
M.C. 339— Bailhache, J.
Excepted Perils — Restraint of Princes — De-
tention of Greek Ship in Black Sea by Greco-
Turkish War — Frustration of Adventure —
Right of Charterers to Refuse to Load.]— The
Greek steamer Andriana belonging to the
plaintiff, was chartered by the defendants to
proceed to a port in the sea of Azoff and there
load a cargo of grain for the United Kingdom.
Arrests and restraints of princes, rulers, and
people were excepted by the charterparty. The
Andriana arrived at Temriuk, her loading
port, on October 1, 1912, and received some
cargo. In view of the imminent probability
of war the Turkish Government arrested all
Greek vessels arriving in the Dardanelles
after September 30, 1912, and war was
declared between Greece and Turkey on
October 18. The charterers on October 7
declined to continue loading as the ship was
not in a position to carry out the charter, and
on October 21 they purported to cancel the
charter, but the plaintiff refused to accept
that notice. The Andriana's lay days did
not expire till October 22. The Turkish
Government allowed laden Greek vessels to
pass through the Dardanelles from October 16
to October 24, and unexpectedly they gave
permission a second time for laden Greek
vessels to pass through from November 12 to
19. As the Andriana, however, was not
loaded she was unable to take advantage of
that permission, and she was detained in the
Black Sea till the close of the war. The
plaintiff sued the defendants for breach of
charterparty in not loading, and claimed
damages for the detention of the ship during
that period : — Held, that, inasmuch as on
October 21, when the defendants purported to
cancel the contract, an excepted peril — namely,
restraint of princes — prevented the charter
from being carried out by the vessel proceed-
ing on her voyage, which restraint was likely
to continue so long as to destroy the object
of the commercial adventure, the defendants
had not committed a breach of charterparty in
not loading a cargo in the ship. The fact
1433
SHIPPING.
1434
that unexpectedly the restraint was removed
for a short time did not impose upon the
defendants the duty of foreseeing that unex-
pected event and proceeding in the perform-
ance of an adventure which seemed hopelessly
destroyed. The defendants were entitled to
act upon reasonable commercial probabilities
at the time they had to decide what to do.
Embiricos v. Reid d Co., 83 L. J. K.B. 1348;
[1914] 3 K.B. 45; 111 L. T. 291; 19 Com.
Cas. 263; 12 Asp. M.C. 513; 30 T. L. K. 451
— Scrutton, J.
2. Exemptions from Liability.
See also Vol. XIII. 273, 2027.
Liability of Shipowner for " damage to
cargo occasioned ... by improper opening of
Yalves " — Valve Properly Opened, but Im-
properly Left Open.] — The plaintifis chartered
the defendants' steamship for the carriage of
a cargo of grain from Sulina to London. The
charterparty and bill of lading contained a
clause exempting the defendants from liability
for damage to the plaintiffs' cargo arising
from "... perils, dangers and accidents of
the sea or other waters of what nature and
kind soever ; . . . and all other accidents of
navigation, and all losses and damages caused
thereby . . . even when occasioned by negli-
gence, default or error in judgment of the pilot,
master, mariners or other servants of the ship-
owners." The clause also provided that
" nothing herein contained shall exempt the
shipowner from liability to pay for damage to
cargo occasioned ... by improper opening of
valves, sluices and ports, or by causes other
than those above excepted ..." Whilst the
defendants' steamship was lying at her moor-
ings, loading the plaintiffs' cargo of grain
under the charterparty and bill of lading, the
circulating pump discharge valve in the side
of the ship was properly opened by the defen-
dants' engineers in order to prevent water
freezing in the pipes. The engineers also
opened the condenser doors for the purpose
of draining water out of the pipes. The
engineers, however, negligently omitted to close
the condenser doors and the discharge valve
when, owing to the loading, the discharge
valve came near the water line. As the
result, a quantity of sea water entered the
ship and damaged the cargo. In an action
for the damage caused thereby, — Held, that
the words " damage to cargo occasioned . . .
by the improper opening of valves," being in
a commercial document, must be read in a
business sense, and that so read they included
the damage to cargo occasioned by the valve
being improperly left open, and that therefore
the defendants were liable. Mendl v. Ropner,
82 L. J. K.B. 75 ; [1913] 1 K.B. 27 : 107 L. T.
699; 18 Com. Cas. 29; 12 Asp. M.C. 268;
57 S. J. 130; 29 T. L. E. 37— Bray, J.
Restraint of Princes — Detention of Greek
Ship in Black Sea by Greco - Turkish
War — Frustration of Adventure — Right of
Charterers to Refuse to Load.^ Tlu Greek
steanit-r .4ndriana, belonging to the plaintiff,
was chartered by the defendants to proceed
to a port in the sea of Azoff and there load a
cargo of grain for the United Kingdom.
Arrests and restraints of princes, rules, and
people were excepted by the charterparty. The
Andriana arrived at Temriuk, her loading port,
on October 1, 1912, and received some cargo.
In view of the imminent probability of war
the Turkish Government arrested all Greek
vessels arriving in the Dardanelles after Sep-
tember 30, 1912, and war was declared between
Greece and Turkey on October 18. The
charterers on October 7 declined to continue
loading as the ship was not in a position to
carry out the charter, and on October 21 they
purported to cancel the charter, but the plain-
tiff refused to accept that notice. The
Andriana s lay days did not expire till Octo-
ber 22. The Turkish Government allowed
laden Greek vessels to pass through the
Dardanelles from October 16 to October 24,
and unexpectedly they gave permission a
second time for laden Greek vessels to pass
through from November 12 to 19. As the
Andriana, however, was not loaded she was
unable to take advantage of that permission,
and she was detained in the Black Sea till
the close of the war. The plaintiff sued the
defendants for breach of charterparty in not
loading, and claimed damages for the detention
of the ship during that period : — Held, that,
inasmuch as on October 21, when the defen-
dants purported to cancel the contract, an
excepted peril — namely, restraint of princes —
prevented the charter from being carried out
by the vessel proceeding on her voyage, which
restraint was likely to continue so long as to
destroy the object of the commercial adventure,
the defendants had not committed a breach
of charterparty in not loading a cargo in the
ship. The fact that unexpectedly the restraint
was removed for a short time did not impose
upon the defendants the duty of foreseeing
that unexpected event and proceeding in the
performance of an adventure which seemed
hopelessly destroyed. The defendants were
entitled to act upon reasonable commercial
probabilities at the time they had to decide
what to do. Embiricos v. Reid <£ Co., 83 L. J.
K.B. 1348; [1914] 3 K.B. 45; 111 L. T. 291 r
12 Asp. M.C. 513; 19 Com. Cas. 263;
30 T. L. E. 4.51— Scrutton, J.
Requisition of Steamer by Admiralty as
Troopship— Alterations to Structure— Implied
Condition that Ship should be fit to Carry Oil
— Claim by Shipowners of Termination of
Contract owing to Requisition. — A tank
steamer was chartered for a period of five
years for the carriage of oil. The charterers
were to have the liberty of sub-letting the
steamer on Admiralty or other service without
prejudice to the charterparty. The charter-
party also contained an exceptions clause
which included restraint of princes. During
the continuance of the charterparty the
steamer was requisitioned by the Admiralty
for the carriage of troops, and certain struc-
tural alterations were made in her for that
purpose. The shipowners claimed that the
charterparty had been terminated or suspended
by a restraint of princes and by a breach of
the implied condition that the steamer should
be fit to carry oil, which formed the basis of
the contract ; and that the requisitioning of
1435
SHIPPING.
1436
the steamer did not amount to a sub-letting :
— Held, that there was no implied condition
enforceable by the shipowners that the charter-
party should be terminated when the steamer
ceased to be fit to carry oil, and that the
requisitioning of the steamer by the Admiralty
during the continuance of the charterparty did
not amount to a breach of the charterparty
by the charterers, and that therefore the ship-
owners were not entitled to terminate the
contract. Tamplin Steamship Co. v. Anglo-
Mexican Petroleum Products Co., 84 L. J.
K.B. 209.5; [1915] 3 K.B. 668; 31 T. L. E.
540— Atkin, J.
3. Provisions as to Bills of Lading and
OTHER Documents.
See also Vol. XIII. 278, 2029.
Effect of Bill of Lading — Cargo of Pit
Props — Freight Payable "per intaken piled
fathom" — Cargo Measured before Shipment
by Different Method — Cargo Re-measured at
Port of Discharge by Shipowners — Liability
of Charterers for Cost of Re-measurement.] —
A charterparty provided for the loading and
delivery of a full and complete cargo of pit
props, freight being payable at a rate " per
intaken piled fathom." It also provided that
bills of lading should be prepared on the form
indorsed on the charterparty and should be
signed by the master " measure unknown."
The bill of lading presented by the shippers to
the master for signature shewed that a certain
quantity of fathoms measured on a different
basis from that required by the charterparty
had been shipped. The master signed the bill
of lading, under protest, " measure unknown."
The shipowners, on the discharge of the cargo
in this country, had the timber piled, checked,
and measured by independent persons accord-
ing to the basis required by the charterparty,
and then brought this action against the
charterers to recover the expenses incurred by
them in so doing : — Held, that the charterers
were under an implied, if not an express
obligation to have the timber measured
according to the basis required by the charter-
party, and to tender bills of lading to the
master for signature containing a statement
of such measurement ; and that as the char-
terers had failed to fulfil that obligation they
were liable to pay the reasonable expenses
incurred by the shipowners in having the
timber measured according to the basis
required by the charterparty. Merriiweather
d Co. V. Pearson d Co., 83 L. J. K.B. 1678;
[1914] 3 K.B. .587; 111 L. T. 584;
12 Asp. M.C. 540; 19 Com. Gas. 402—
Bailhache, J.
4. Performance.
See also Vol. XIII. 286, 2031.
Unseaworthiness of Ship — Deviation — Con-
tract of Carriage.1 — The appellants were
owners of the Wearside. The respondents were
the indorsees of a bill of lading which incor-
porated all the conditions, provisos, and
exceptions in the charterparty. The charter-
party authorised the vessel to deviate for the
purpose of saving life and property, the master
or owners to have an absolute lien on the
cargo for all freight, dead freight, demurrage,
and average. The charterers failed to provide
a full cargo, and the master, obtaining
additional cargo, so overloaded the ship as to
make her unseaworthy ; and in order to save
crew and cargo the vessel was obliged to take
refuge in the port of Halifax. The owners
paid for repairs and compensated the owners
of jettisoned cargo : — Held, that the deviation
I was justifiable, that the deviation and over-
loading did not put an end to the contract of
affreightment, and that the owners had not
lost their rights under the charterparty. Steel
(£• Co. V. Scott .{■ Co. (59 L. J. P.O. 1;
14 App. Gas. 601) distinguished. Kish v.
Taylor, 81 L. J. K.B. 1027; [1912] A.G. 604;
106 L. T. 900; 12 Asp. M.G. 217;
17 Gom. Gas. 355; 56 S. J. 518; 28 T. L. E.
425— H.L. (E.)
Decision of the Court of Appeal (80 L. J.
K.B. 601; [1911] 1 K.B. 625) reversed, and
that of Walton, J. (79 L. J. K.B. 1113; [1910]
2 K.B. 309), restored. lb.
" Consignees to effect discharge of cargo
steamer paying Is. per ton" — Sale of Cargo
by Consignee — "Cost of stevedoring to be
paid by " Purchaser — Right to Sum Payable
by Steamer.] — The appellant had chartered a
steamer to load a cargo of coal for Sydney.
The charterparty contained the following
clause : " Consignees to effect the discharge
of the cargo, strike or no strike, steamer pay-
ing Is. per ton of 20 cwt." Before the ship
arrived the appellant sold the cargo to the
Government of New South Wales on the
terms (inter alia), " The Government to guar-
antee to discharge the vessel at not less than
500 tons per day, strike or no strike. The
cost of stevedoring to be paid by the Govern-
ment " : — Held, that the Government were
entitled to retain the Is. per ton payable as
against the appellant. White v. Williams,
82 L. J. P.G. 11: [1912] A.G. 814; 107 L. T.
99; 12 Asp. M.C. 208; 17 Com. Gas. 309;
28 T. L. E. 521— P.G.
Bills of Lading — Assignment — Cesser of
Shipowner's Liability — Submission to Arbitra-
tion.]— The plaintiii's, who were the owners
of the steamship Den of Mains, chartered her
by charterparty dated April 26, 1911, to the
defendants j\I. & Go., to load a cargo of beans
at Vladivostock, and to proceed to a port in
the United Kingdom and there deliver the
cargo " agreeably to bills of lading." On
June 10 a cargo of about 6,000 tons was loaded,
and bills of lading made out to the order of
M. & Go. or their assigns were signed by the
master and handed to M. & Go.'s representa-
tive. M. & Co. had, by a contract dated
April 27, 1911, sold the cargo to the defendants
the B. Go. on the terms of a " basis delivered "
contract, by clause 10 of which the contract
was to be void as regarded any portion shipped
which might not arrive. On June 12 the defen-
dants M. & Go., under the contract of April 27,
declared to the B. Co. that the beans had
been shipped by steamship Den of Mains. On
arrival of the vessel at Ijiverpool, the port of
discharge, M. & Go. handed to the B. Co. the
1437
SHIPPING.
1438
bills of lading indorsed against a payment.
When the discharge had been completed it
was alleged that there was a shortage of
171 bags, and, the B. Co. having paid only
in respect of the quantity actually delivered,
M. & Co. instructed them to make a corre-
sponding deduction from the freight, but the
plaintiffs refused to acknowledge the claim
for short delivery. A dispute having thus
arisen, M. & Co. gave notice that they de-
manded an arbitration under a clause in the
charterparty which provided for arbitration
" by arbitrators, one to be appointed by each
of the parties to this agreement, if necessary
the arbitrators to appoint a third," and for-
mally required the plaintiffs within seven
clear days to appoint their arbitrator. The
plaintiffs did not appoint an arbitrator, and
the defendants after the expiry of the seven
days gave notice of the appointment of a
gentleman to act as sole arbitrator. On a
summons for directions taken out by the
plaintiffs, — Held, first, that there was
nothing in the contract or the circumstances
of the case to satisfy the Court that it was
the intention of the shipowners and char-
terers that the responsibility of the former
under the charterparty had ceased ; and
secondly, that the submission to arbitration
came within section 6 of the Arbitration Act,
1889. " Den of Airlie " Steamship Co. v.
Mitsui, 106 L. T. 451; 17 Com. Cas. 116;
12 Asp. M.C. 169— C.A.
Requisition of Ship by Admiralty — Rights
of Owners and Charterers.] — A steamer was
chartered from the owners for five years from
December, 1912, for the carriage of petroleum
and crude oil or its products, the charterers
having liberty to sublet the steamer on
Admiralty or other service without prejudice
to the charterparty, the charterers, however,
remaining responsible. A clause in the
charterparty included restraints of princes.
In February, 1915, the British Government
requisitioned the steamer for Admiralty
transport service, and she was then fitted up
and used for the transport of troops. Disputes
having arisen between the parties as to their
rights under the charterparty, and having
been submitted to arbitration. — Held, on a
Case stated by the arbitrator, that the charter-
party was not put an end to or suspended by
the requisition, and the charterers and not the
shipowners were entitled to the compensation
offered by the Government. Tamplin Steam-
ship Co. V. Anqlo-Mexican Petroleum Products
Co., 84 L. J. K.B. 2095; [1915] 3 K.B. 668;
31 T. L. R. 540— Atkiu, J.
Vn. BILLS OF LADING.
1 Construction.
See also Vol. XIII. 306. 2035.
Craft Transit—" Vessel " — Barge — Unsea-
worthiness—Ambiguity.] —A bill of lading
provided for the shipment of certain goods
from London to Gloversville, in the United
States of America, and contained a clause of
exceptions which included damage from rain,
frost, decay, pilferage, wastage, &c. It also
contained exceptions in respect of damage or
loss from boilers, &c., and " unseaworthiness,
submerging or sinking of ship or admission of
water into the vessel . . . unseaworthiness or
unfitness of the vessel at commencement of,
or before, or at any time during the voyage,
perils of the sea, rivers, navigation or land
transit of whatever nature or kind, and all
damage, loss or injury arising from the perils
or things above mentioned." At the end of
the bill of lading were the words " All the
above exceptions and conditions shall apply
from the time when the goods come into the
possession or custody of the carriers or their
agents in warehouse or wharf in course of land
or water transit or in any other situation."
In a claim for damages by the shippers in
respect of injury caused by the unseaworthiness
of a barge in which the cargo was carried, —
Held, that the word " vessel " in the bill of lad-
ing applied to the barge, and that, as a matter
of construction, the last clause also had appli-
cation to the barge, and the provision about
unseaworthiness effectually protected the ship-
owners. Weiner v. Wilsons and Furness-
Lexjland Line, 102 L. T. 716; 54 S. J. 543—
Hamilton, J. Affirmed, 103, L. T. 168;
15 Com. Cas. 294; 11 Asp. M.C. 413— C.A.
Incorporation of Terms of Charterparty —
Goods "at charterers' risk" — Shipowners not
Responsible for Leakage and Breakage — Negli-
gence of Shipowners' SerYants — Liability of
Shipowners.] — By a bill of lading 900 barrels
of tar were shipped on the defendants' steam-
ship, in substitution for a timber cargo that
was to have been loaded. The bill of lading,
which was a timber bill of lading, contained
a clause that the shipowners were not
responsible for leakage and breakage, and the
further clause " all other conditions and excep-
tions as per charterparty." The charter-
party provided that the steamer was to be
provided with a deckload at full freight " at
charterers' risk." and it contained exceptions
in favour of the shipowners in respect of
accidents of navigation even when occasioned
by the negligence of the shipowners' ser-
vants. The barrels of tar were carried on
deck, and owing to a quantity of heavy
timber being improperly stowed on the top
of them, a large number were crushed and
broken. In an action to recover damages in
respect thereof, — Held, that the words " at
charterers' risk " in the charterparty were
not incorporated in the bill of lading ; that
the exception in the bill of lading that the
shipowners were not to be accountable " for
leakage and breakage " did not protect the
shipowners where the leakage or breakage
was due to the negligence of their servants;
and that the shipowners were liable for the
damage that had been occasioned to the
barrels of tar. The Modena, 16 Com. Cas.
292; 27 T. L. R. 529— D.
Custom of Port — Inconsistency with
Terms of Bill of Lading.] — A steamer loaded
a cargo of barley in sacks at a North Pacific
port, under a charterparty which stipulated
for discharge at a " safe port or ports in the
1439
SHIPPING.
1440
United Kingdom . . . Vessel to discharge afloat
with dispatch, according to the custom at port
of discharge for steamers except as otherwise
provided ; cargo to be delivered at ship's
tackles." The bills of lading acknowledged
receipt of a certain number of sacks said to
contain a certain weight of barley "to be
delivered in the like good order and condition.
. . . Freight for the said goods payable as per
endorsement on charterparty, with average
accustomed general average, if any, and all
other conditions and exceptions as per charter-
party." The consignees, to whom the bills of
lading had been indorsed, ordered the ship to
Leith, and claimed to take delivery of the
cargo there in the sacks as shipped. The ship-
owners maintained that they were entitled to
deliver it according to the custom of the port
of Leith with regard to grain cargoes from
North Pacific ports, whereby the cargo was
bulked by the receivers' men in the hold, from
which it was hoisted in tubs to the deck and
poured into sacks of uniform size, the sacks
lieing weighed on deck before being slung
ashore. The consignees maintained that this
custom was not binding on them in respect
that it was unknown to them, and, further,
that it was inconsistent with the terms of the
bills of lading which implied that delivery was
to be made in the original sacks, and with the
terms of the charterparty which provided for
delivery at the ship's tackles : — Held, that the
consignees were bound by the custom of the
port of Leith in respect, first, that the custonj
was imported into the bills of lading by the
reference to the charterparty, and, secondly,
that, as it had been made an express term of
the contract it was immaterial whether it was
known to the consignees or not ; that it overrode
the implication in the bills of lading that the
cargo was to be delivered in the original sacks ;
and fourthly, that it was not inconsistent with
the provision that the cargo should be delivered
at the ship's tackles. Strathlorne Steamship
Co. V. Baird d- Sons, Lim., [1915] S. C. 956
— Ct. of Sess.
Arbitration Clause.] — A charterparty for
the carriage of a cargo of timber stipulating
for the discharge of the cargo with customary
dispatch and for payment of demurrage in
the event of the ship being longer detained,
contained a clause that " any dispute or claim
arising out of any of the conditions of this
charterparty shall be adjusted at port where
it occurs, and same shall be settled by arbitra-
tion." The bill of lading given for the cargo
contained the words " all other terms and
conditions and exceptions of charter to be as
per charterparty." The shipowners having
brought an action for demurrage against the
holders of the bill of lading to whom the
cargo had been consigned, — Held, that the
arbitration clause of the charterparty was not
incorporated in the bill of lading so as to
entitle the defendants to have the action
stayed, inasmuch as it only applied to the
way of settling disputes between the parties
to the charterparty and to disputes arising out
of the conditions of the charterparty, but
not to disputes arising out of the bill of
lading. The Portsmouth, 81 L. J. P. 17;
[1912] A.C. 1 ; 105 L. T. 257 ; 12 Asp. M.C. 23 ;
55 S. J. 615— H.L. (E.)
Decision of the Court of Appeal
(80 L. J. P. 36 ; [1911] P. 54) affirmed. lb.
Express Contract of Liability for Unsea-
worthiness— Ship Unseaworthy — Limitation of
Time for Making Claims — Whether Limitation
Applied in Case of Unseaworthiness — Tran-
shipment of Goods.] — The indorsees of bills of
lading sued the shipowners for breach of con-
tract, and for damages for injury to the goods
carried. The goods were shipped at Welling-
ton, New Zealand, upon the Clan Maclaren.
At Port Pirie some of the goods were
transhipped into the Geelong. The Clan
Maclaren arrived on April 13, 1912, and the
Geelong on April 23. The goods were damaged
owing to the unseaworthiness of the Clan
Maclaren. Clause 3 of the bill of lading pro-
vided for the possible transhipment of goods.
Clause 12 provided, " No claim that may arise
in respect of goods shipped by this steamer
will be recoverable unless made at the port of
delivery within seven days from the date of
steamer's arrival there." Clause 14 provided,
" the shipowners shall be responsible for loss
or damage arising from any unseaworthiness
of the vessel when she sails on the voyage."
No claim was made by the plaintiffs till more
than seven days after the arrival of either
vessel. Bailhache, J., held that as the Clan
Maclare7i was unseaworthy clause 12 of the
bill of lading, which limited the time for
making claims, had no application : — Held,
that, as there was an express condition in
the bill of lading making the shipowners liable
for damage resulting from unseaworthiness,
clause 12 applied. But lield by Pickford, L.J.,
and Bankes, L.J., that the clause was not
clear and unambiguous, and did not protect
the shipowners as regards the goods tran-
shipped from the Clan Maclaren to the Geelong.
Tattersall v. National Steamship Co. (53 L. J.
Q.B. 332; 12 Q.B. D. 297) and Morris v.
Oceanic Steam Navigation Co. (16 T. L. R.
533) considered. Bank of Australasia v. Clan
Line Steamers, 84 L. J. K.B. 1250; 113 L. T.
261; 21 Com. Cas. 13— C. A.
2 Effect of.
See also Vol. XIII. 314, 2039.
Conveyance InYolving Transhipment — Unsea-
worthy Barge — Liability of Person Providing
Barge.]— Where the owner of goods contracts
with a steamship company under a through
bill of lading for their conveyance and delivery,
including transhipment by barge at a port
en route, a company which contracts with the
steamship company to supply a barge to
tranship the goods commits a tort against the
owners of the goods by supplying an unsea-
worthv barge and is liable to them for damages.
The Termagant, 19 Com. Cas. 239; 30 T. L.R.
377 — Bargrave Deane, J.
" Shipped in apparent good order and condi-
tion " — " Contents unknown " — Goods Shipped
in Damaged Condition — Estoppel — Liability of
Shipowners to Indorsees of Bill of Lading.] —
Sugar in bags was shipped at a port in Mexico
1441
SHIPPING.
1442
for carriage to London. When put on board,
the bags were in such a state that the mate
made the following note on the receipt given
by him : " Very wet and stained by con-
tents." The bill of lading stated that the
bags were "shipped in apparent good order
and condition," and also contained the words
"weight, contents . . . unknown." The
sugar was in fact externally damaged before
shipment by both fresh and sea water, and
was not damaged by an excepted peril after
shipment. In an action by indorsees of the
bill of lading in respect of the damage to the
sugar, held that the shipowners were estopped
by the terms of the bill of lading from proving
in accordance with the fact that the goods
were in bad condition when shipped, and that
as the sugar, which was stated in the bill of
lading to have been shipped in apparent good
order and condition, had been delivered
damaged by an external cause not due to an
excepted peril, the shipowners were liable for
the difference between the value of sound
sugar and the sugar as delivered. Compania
Naviera Vascongada v. Churchill <(■ Sim
(75 L. J. K.B. 94 ; [1906] 1 K.B. 237) followed.
Martineaus v. Royal Mail Steam Packet Co.,
106 L. T. 638; 12 Asp. M.C. 190; 17 Com. Cas.
176; .56 S. J. 445; 28 T. L. R. 364— Scrutton,
J.
Exemptions — Short Delivery of Cargo —
Unidentified Residue — Rights of Consignee.] —
Where in discharging the cargo of a ship
there is a shortage of delivery, and also a
residue of unidentified goods, the shipowner
cannot compel the consignees to take the un-
identified goods as a pro tanto fulfilment of the
contract to deliver. Sandeman v. Tyzack and
Branfoot Steamship Co., 83 L. J. P.C. 23;
[1913] A.C. 680; 109 L. T. 580; 57 S. J. 752;
29 T. L. R. 694— H.L. (Sc.)
On the arrival of a ship laden with bales
of jute at her port of discharge fourteen bales
were found to be missing, and there were
eleven bales which could not be identified as
forming part of any of the consignments
shipped. In an action by the shipowners for
freight, — Held, that the consignees were
entitled to set off the value of the fourteen
bales not delivered, and could not be compelled
to allocate amongst themselves the eleven bales
unidentified in reduction of such short delivery,
and that the shipowners were not protected
by a clause in the bills of lading by which the
ship was not to be liable " for inaccuracies,
obliteration, or absence of marks, numbers, or
description of goods shipped." lb.
Sperice v. Union Marine Insurance Co.
(37 L. J. C.P. 169; L. R. 3 C.P. 427) dis-
tinguished. Dictum of Tiord Russell of Kill-
owen in Smurthwaite v. Hannay (63 L. J.
Q.B. 737; [1894] A.C. 494) commented on.
76.
Judgment of the Court of Session ([1913]
8. C. 19) reversed. 76.
Production of Bill of Lading.! — Observa-
tions on the rights and duties of the shipowner,
the master, and the consignee in the event of
the consignee being unable to produce the
bills of lading for the cargo at the port of
discharge. Carlberg v. Wemyss Coal Co.,
[1915] S. C. 616— Ct. of Sess.
Non-delivery at Port of Loading.] — The
plaintiff's bought from the defendants under a
c.i.f. contract, for delivery in London, 100 tons
of block gambier, which the defendants
declared per their steamship Selandia sailing
from Singapore. The block gambier had been
shipped under a bill of lading making it
deliverable in Copenhagen. On the arrival
of the vessel in London the defendants, not
having received the bill of lading, gave the
plaintiffs delivery orders against payment, but
when these were presented delivery was re-
fused, and the vessel took the goods on to
Copenhagen. More than a month later the
goods were delivered to the plaintiffs in
London. Meanwhile, the plaintiffs had suffered
loss by a fall in the market. The plaintiffs
also bought under a c.i.f. contract, for delivery
in London, a parcel of pepper from C. M. & Co.,
who had bought it from the defendants and
who declared it per the same vessel sailing on
the same voyage. The bill of lading provided
for delivery at Copenhagen, and it was indorsed
by the defendants " To be delivered in Lon-
don " and was then handed to the plaintiffs
against payment. Delivery in London was
refused, and the pepper was carried on to
Copenhagen and thence back to London.
Meantime, there had been a fall in the market
with a resulting loss to the plaintiffs. The
conditions in both bills of lading provided that
the ship might carry the goods beyond their
destination, and that the shipowners were not
to be responsible for loss arising from late or
wrong delivery or overcarriage. In an action
by the plaintiffs to recover from the defendants
the amount of the loss, — Held, that as in the
case of the block gambier the defendants did
not deliver a bill of lading answering the
requirements of the contract they could not
in that case rely upon the conditions in the
bill of lading, and as in the case both of the
block gambier and the pepper the conditions
did not apply where the vessel had actually
been in the port of destination of the goods
for the purpose of delivering cargo, the defen-
dants were liable for the loss. Sargant v.
East .A.Hatic Co. , 32 T. L. R. 119— Bailhache, J.
3. Exemptions from Lubility.
a. Seaworthiness, Warranty.
See also Vol. XIII. 325, 2041.
Exception from Liability for Latent Defect —
Incorporation in Bill of Lading of Australian
Sea Carriage of Goods Act, 1904.]— A bill of
lading contained a stipulation that " any latent
defects in the hull and tackle shall not be
considered unseaworthiness, provided the same
did not result from want of due diligence of
the owner ... or manager." By a "clause
paramount " it was provided that the bill of
lading was "to be read and construed as if
every clause therein contained which is ren-
dered illegal or null or void by the [Australian]
Sea Carriage of Goods Act, 1904, had never
been inserted therein." By that Act it is pro-
vided that in every bill of lading a warranty
46
1443
SHIPPING.
1444
of seaworthiness shall be implied, and that any
clause in a bill of lading, whereb)' any obliga-
tion to exercise due diligence and to properly
equip the ship, to make her seaworthy, and to
make the ship's hold fit for cargo, is lessened
or avoided, shall be null and void : — Held,
that the incorporation of that Act in the bill
of lading did not render the stipulations as to
latent defects null and void ; and that it was
open to the shipowners, sued for damages to
the cargo arising from unseaworthiness due to
defects in the ship, to establish as a defence
that the defects were latent and did not result
from want of due diligence on their part.
Charlton <t' Bagshaw v. Law d Co., [1913]
S. C. 317— Ct. of Sess.
Through Bill of Lading— Goods to be Tran-
shipped at Ship's Expense and Shipper's Risk
— Damage to Goods during Transhipment
through Unseaworthiness of Lighter — Negli-
gence— Liability of Shipowner.] — Goods were
shipped at New York, under a through bill of
lading, for conveyance to a port in Sweden via
Hull.- By the bill of lading the goods were to
be delivered in good order and condition at
Hull, "to be thence transhipped at ship's
expense and shipper's risk to the port of N,"
the carrier to " have liberty to convey goods in
craft and /or lighters to and from the steamer
at the risk of the owners of the goods." The
goods arrived safely at Hull, and were there
put on board a lighter in order to be tran-
shipped into a vessel bound for N. in Sweden.
The lighter was unseaworthy and sank in the
dock, and the goods were damaged : — Held,
that the shipowners were guilty of negligence.
and were not protected by the clause in the
bill of lading. Wilson, Sons d Co. v.
^'Galileo" (Cargo Owners); The Galileo,
83 L. J. P. 102; [1915] A.C. 199; 111 L. T.
656; 12 Asp. M.C. 534; 19 Com. Gas. 459;
30 T. L. R. 612-H.L. (E.)
Judgment of the Court of Appeal (83 L. J.
P. 27; [1914] P. 9) affirmed. lb.
b. Fire.
Exclusive of Section 502 of Merchant Ship-
ping Act.]— A bill of lading provided that the
goods were to be delivered " in the like good
order and condition subject to the clauses and
conditions expressed in this bill of lading,
which constitutes the contract of freight
between the shipowners, shippers, and con-
signees." It also provided that " the ship-
owners and /or charterers are not responsible
for any loss, detention, or damage to the
goods or the consequences thereof, or expenses
occasioned by any of the following causes,
viz. : . . fire on board, in hulk, in craft, or
on shore; explosions, heat, defects in hull,
tackle, engines, boilers, machinery, or their
appurtenances, or accidents arising therefrom;
perils of the seas . . . and all accidents of
navigation . . . ; nor for any act, neglect, or
default of the pilot, master, crew, stevedores,
engineers, or agents of the shipowners . . .
or by unseaworthiness of the ship at the com-
mencement of or at any period of the voyage,
provided all reasonable means have been taken
to provide against such unseaworthiness, or
by any other cause whatever " : — Held, that
the parties had by the terms of the bill of
lading excluded the operation of section 502 of
the Merchant Shipping Act, 1894, and that it
was intended that the shipowners should be
liable for loss of goods by fire if they had
failed to take reasonable means to provide
against unseaworthiness. Virginia Carolina
Chemical Co. v. Norfolk and North American
Steam Shipping Co. {No. 1), 81 L. J. K.B.
129; [1912] 1 K.B. 229; 105 L. T. 810;
12 Asp. M.C. 82; 17 Com. Cas. 6 ; 28 T. L. R.
85 — C.A. Questions of fact directed to be
tried, 82 L. J. K.B. 389; [1913] A.C. 52
— H.L. (E.)
The Court of Appeal having decided as a
preliminary question of law that section 502
of the Merchant Shipping Act, 1892, which
exempts the owner of a British sea-going
ship from liability for loss or damage to goods
by fire where the loss or damage happens
without his actual fault or privity, applies to
protect the shipowner, even although there
has been a breach by him of the warranty of
seaworthiness, but that the parties to a con-
tract for carriage of goods by sea may, by the
terms of their contract, exclude the operation
of this section, and that on the construction
of a bill of lading the parties had excluded the
operation of the section, the House of Lords,
on appeal thereto from the Court of Appeal's
decision, directed that the facts should be
ascertained before the preliminary question of
law could be decided. On the re-hearing, —
Held, that the vessel in question was not
unseaworthy when she started on her voyage,
and that the fire which caused the damage to
the plaintiff's goods was occasioned by an act
of negligence on the part of one of the ship's
engineers, for which act of negligence the ship-
owners were exempt from liability by the terms
of the bill of lading. Virginia Carolina
Chemical Co. v. Norfolk and North American
Steam Shipping Co. {No. 2), 107 L. T. 320:
17 Com. Cas. 277; 56 S. J. 722; 28 T. L. E.
513 — Hamilton, J.
The plaintiffs shipped goods on board the
defendants' vessel. The bill of lading provided
that the goods were "to be delivered subject
to the exceptions and conditions herein men-
tioned, in the like good order and condition."
Among the exceptions thus referred to were
the following : " 1. Fire on board, in hulk or
craft, or on shore, stranding and all accidents,
loss and damage whatsoever from defects in
hull, tackle, apparatus ... or from perils of
the seas ... or from any act, neglect or
default whatsoever of the pilot, master, officers,
engineers, crew, stevedores, servants, or
agents of the owners and /or charterers, ashore
or afloat, in the management, loading, stow-
ing, discharging, or navigation of the ship,
or other craft, or otherwise, the owners and/or
charterers being in no way liable for any con-
sequences of the causes before mentioned."
"11. It is agreed that the maintenance by
the shipowners of the vessel's class (or, in the
alternative, failing a class, the exercise by the
shipowners and /or charterers or their agents
of reasonable care and diligence in connection
with the upkeep of the ship) shall be con-
sidered a fulfilment of every duty, warranty, or
obligation, and whether before or after the
1445
SHIPPING.
1446
coininencement of the said voyage." The plain-
tiffs'goods were lost without the actual fault or
privity of the defendants by reason of fire on
board the ship. The ship was unseaworthy
at the commencement of the voyage owing to
the insufficient packing and bad stowage of a
quantity of metallic sodium which was taken
on board. The fire was caused by sea water
coming in contact with the sodium : — Held,
that there was nothing in the terms of the bill
of lading which shewed an agreement by the
parties to exclude the operation of section 502
of the Merchant Shipping Act, 1894, which
exempts the owner of a British seagoing ship
from liability for the loss of goods happening
without his actual fault or privity by reason of
fire on boai'd the ship. Ingram ((- Royle, Lim.
V. Services Maritimes du Treport (No. 1),
83 L. J. K.B. 382; [1914] 1 K.B. 545;
109 L. T. 733 ; 19 Com. Cas. 105 ; 12 Asp. M.C.
387; 58 S. J. 172; 30 T. L. R. 79— C. A.
Virginia Carolina Chemical Co. v. Norfolk
and Nortli American Steam Shipping Co.
(81 L. J. K.B. 129; [1912] 1 K.B. 229; appeal
compromised in H.L., 82 L. J. K.B. 389;
[1913] A.C. 52) distinguished. lb.
Judgment of Scrutton, J. (82 L. J. K.B.
374; [1913] 1 K.B. 538), reversed. lb.
c. Restraints of Princes.
Goods Shipped on Board Vessel with Foul
Bill of Health — Decree of French GoYernment
as to Fumigation of Ship.l — By a decree of
the French Government in force since 1906 it
was enacted that a process for the destruction
of rats on board ships, and known as deratisa-
tion, by means of sulphur fumigation, should
be compulsorily effected upon any vessel com-
ing from a port considered to be contaminated
by plague and seeking to obtain admission to
the port of Marseilles. In 1914, under a bill
of lading which contained the exceptions of
" restraints of princes " and " any circum-
stances beyond the shipowner's control," and
gave the ship liberty to call at any ports in.
the course of the voyage, the shipowners
received from the plaintiff a quantity of lemons
at Naples for carriage to London. The ship
had come from Mombasa with a foul bill of
health to Naples, where, after loading her
cargo, she proceeded to Marseilles. There,
owing to the fact that Mombasa was a plague-
contaminated port, the ship was, in accordance
with the decree, subjected by the authorities
to the process of deratisation, with the result
that the lemons were damaged. In an action
by the plaintiffs for the loss, — Held, (1) that
the shipowners were not exempt from liability
under the exceptions in the bill of lading ; and
(2) that, owing to the fact that the ship and
cargo would inevitably have to undergo the
process of diratisation at Marseilles, with
resulting damage to the lemons, the ship was
not reasonably fit at Naples for the carriage
thereof, and was therefore unseaworthy.
Ciampa v. British India Steam Navigation
Co., 84 L. J. K.B. 1653; [1915] 2 K.B'. 774;
20 Com. Cas. 247— Rowlatt, J.
Danger from Minefields — Safe Port — Parcel
of Beans — Prohibition of Export." — Tlie plain-
tiffs were the holders of a bill of lading dated
before the war, and containing the exception
'■ restraint of princes," and relating to a parcel
of soya beans which formed part of the cargo
of a steamship belonging to the defendants.
By the terms of the bill of lading the vessel
was to call at Port Said for orders, and to
deliver the beans at the port there ordered, or
so near thereto as she might safely get. Orders
were duly given for Amsterdam in October,
1914. The vessel had other cargo for Hull,
and on her arrival there the defendants, owing
to danger from minefields, declined to let her
go on to Amsterdam, claiming that they had
performed their bill of lading obligations, and
on non-payment of the freight they lightered
and warehoused the beans. Meantime the
authorities ordered the beans to be detained
pending enquiry, and ultimately they pro-
hibited their export. In an action by the
plaintiffs for failure to carry the beans to
Amsterdam, the defendants counterclaimed for
freight and lighterage and warehouse charges :
— Held, that though the passage from Hull
to Amsterdam was not so attended with danger
from minefields as to make Amsterdam cot a
safe port, and the defendants broke their con-
tract by not sending the vessel there, yet as
the exception " restraint of princes " excused
their failure to carry to Amsterdam, they were
immune from resultant damages, but they
could not recover the freight and lighterage
and warehouse charges. Semble, that the
words " so near thereto as she may safely get
in the bill of lading did not cover the port of
Hull. East Asiatic Co. v. Tronto S.S. Co.,
31 T. L. R. 543— Bailhache, J.
d. Other Exceptions.
See also Vol. XIII. 338. 2052.
Ship not Liable " for inaccuracies, oblitera-
tion, or absence of marks," &c.] — On the
arrival of a ship laden with bales of jute at
her port of discharge fourteen bales were found
to be missing, and there were eleven bales
which could not be identified as forming part
of any of the consignments shipped. In an
action by the shipowners for freight, — Held,
that the consignees were entitled to set off the
value of the fourteen bales not delivered, and
could not be compelled to allocate amongst
themselves the eleven bales unidentified in
reduction of such short delivery, and that the
shipowners were not protected by a clause in
the bills of lading by which the ship was not
to be liable " for inaccuracies, obliteration, or
absence of marks, numbers, or description of
goods shipped." Sandeman v. Tyzack and
Branfort Steamship Co.. 83 L. J. P.O. 23;
[1913] A.C. 680; 109 L. T. 580; 57 S. J. 752:
29 T. L. R. 694— H.L. (Sc.)
Spence v. Union Marine Insurance Co.
(37 L. J. C.P. 69; L. R. 3 C.P. 427) distin-
guished. Dictum of Lord Russell of Killowen
in Smurthwaitc v. Ilannay (63 L. J. Q.B. 737 ;
[1894] A.C. 494) commented on. 76.
Judgment of the Court of Session ([1913]
S. C. 19) reversed. lb.
Strikes — Clause Exempting Shipowners
from Liability in Certain Circumstances.] —
The A., owned by the O.S. Co., Lim., and
1447
SHIPPING.
1448
managed by A. H. & Co., left Adelaide on
April 10 last, bound to London and Liverpool
with a general cargo including 2,794 sacks of
flour belonging to plaintiffs, and including
fruit and meat in her refrigerating chambers.
Plaintiffs' flour was for delivery in London.
The .4. arrived at Gravesend at 9.38 a.m. on
May 24 (Friday before Whit-Sunday), and at
the time there was a strike throughout the
Port of London which would or might have
prevented the discharge in London of the cargo
in the .4. The strike also would or might have
prevented the loading of coal on the A.
necessary for the working of her refrigerator.
The vessel, which had only 100 tons of coal
on board, equal to one day's consumption for
refrigerator and steaming purposes, required
an immediate further supply of coal. There
was no way of ascertaining how long the strike
would last, and in fact the strike continued
till the month of August. Under these circum-
stances the A. proceeded at once to the Hook
of Holland, arriving there on May 25, where
she took a suflicient quantity of coal on board.
Learning that the strike still continued, she
proceeded on May 26 towards Liverpool, where
she arrived on May 28, and discharged her
cargo, including plaintiffs' cargo and other
London cargo. A. H. & Co., by their agents,
J. S. & Sons, of London, notified all the
owners of London cargo by circular of May 25
that it was being discharged at Liverpool,
and offering delivery there. Plaintiffs declined
to take delivery elsewhere than in London.
Plaintiffs' cargo was brought freight free to
London at the beginning of July by the steam-
ship P., another steamer managed by A. H.
& Co., and was delivered to plaintiffs in
London. As a result of the discharging of the
plaintiffs' cargo at Liverpool instead of Lon-
don, transhipment expenses and dock dues at
Liverpool amounting to 30/. 15s. Id. were paid
by the defendants to the Mersey Docks and
Harbour Board, and were charged to the plain-
tiffs by the defendants. Of this the plaintiffs
had paid 30/. under protest, and now sought
to recover the said sum. The important clause
of the bill of lading, leaving out the immaterial
words, was to this effect : "If the master
reasonably anticipates that delivery will be
impeded at the port of delivery by strikes,
the master may at any point of the transit, at
the risk and expense of the owner of the goodsj
tranship or land or otherwise dispose of the
cargo, or any part thereof, and the same may
be re-shipped or forwarded, or he may proceed
on the voyage with the whole or part of the
goods, and discharge the same on the return
voyage, or forward them to their destination
from another port always subject to the con-
ditions of the forwarding conveyance. ... If
the discharge of the cargo be or threatens to
he impeded by absence from whatever cause
of facilities of discharge, the master to have
liberty at ship's expense, but shipper's risk,
to put the whole of the cargo into hulk,
lighter. . . . Transhipment of cargo for ports
where the ship does not call or for shipowner's
purposes to be at shipowner's expense " : —
Held, that the plaintiffs were entitled to
succeed, as in the events which happened the
expenses were not thrown upon the owners of
the goods. Wiles v. Ocean Steamship Co.,
107 L. T. 825 ; 12 Asp. M.C. 277 ; 57 S. J. 213
—Bray, J.
Bill of Lading Incorporating Charterparty —
Negligence Clause — Loss of Cargo by Negli-
gence of Master and Crew — Liability of Ship-
owners.]— Where cargo-owners shipped goods
under a charterparty in pursuance of a con-
tract which stipulated that the charterparty
should be in a particular form, and the bill of
lading contained the words " all other condi-
tions as per charterparty," the bill of lading
was held to incorporate the charterparty, which
contained a negligence clause exempting the
shipowners from liability for negligence. The
shipowners were accordingly held not liable
for the jettison of cargo made necessary by the
negligence of the master and crew. The
Draupner, 79 L. J. P. 88; [1910] A.C. 450;
103 L. T. 87; 11 Asp. M.C. 436; 26 T. L. E.
571— H.L. (E.)
" Shipped in apparent good order and con-
dition " — "Contents unknown" — Goods
Shipped in Damaged Condition — Estoppel —
Liability of Shipowners to Indorsees of Bill of
Lading.] — Sugar in bags was shipped at a port
in Mexico for carriage to London. When put
on board, the bags were in such a state that
the mate made the following note on the
receipt given by him : " Very w-et and stained
by contents." The bill of lading stated that
the bags were " shipped in apparent good
order and condition," and also contained the
words " weight. contents . . . unknown."
The sugar was in fact externally damaged
before shipment by both fresh and sea water,
and was not damaged by an excepted peril
after shipment. In an action by indorsees of
the bill of lading in respect of the damage
to the sugar, held that the shipoMners were
estopped by the terms of the bill of lading from
proving in accordance with the fact that the
goods were in bad condition when shipped, and
that the sugar, which was stated in the bill
of lading to have been shipped in apparent
good order and condition, had been delivered
damaged by an external cause not due to an
excepted peril, the shipowners were liable for
the difference between the value of sound sugar
and the sugar as delivered. Compania
Naviera Vascongada v. Churchill d- Sim
([1906] 1 K.B. 237) followed. Martineaus v.
Royal Mail Steam Packet Co., 106 L. T. 638;
17 Com. Cas. 176; 12 Asp. M.C. 190; 56 S. J.
445; 28 T. L. E. 364— Scrutton, J.
"Neglect, default, or error of judgment in
the navigation or management of the vessel "
— Damage to Cargo by Delay.] — A cargo of
fruit was shipped in the defendants' vessel
from Gandia to London under bills of lading
by which the defendants were not liable for
the master's neglect, default, or error in judg-
ment in the navigation or management of the
vessel, and which gave liberty to proceed to
and stay at any port (although in a contrary
direction to or out of the route of the port of
discharge) " for loading or discharging cargo
or passengers or for any purpose whatsoever."
On the voyage, in December, 1914, the master
put into Oorunna and remained there twenty-
1449
SHIPPING.
1450
three days, as he feared his bunker coals would
not be sufficient and as he was not willing
to brave the weather at that season or to
face the dangers which he anticipated on the
voyage between the north-west of Spain and
Loudon. The fruit was damaged by the delay
in transit, and the plaintiffs, as indorsees of
the bills of lading to whom the property had
passed, and as consignees and owners of their
respective parcels, claimed damages from the
defendants : — Held, that the default of the
master in putting into and remaining at
Corunna was not a neglect, default, or error
of judgment in the navigation of the vessel
within the exceptions in the bills of lading,
that the deviation to and the delay at Corunna
were not covered by the liberty given to pro-
ceed to ports outside the route of the voyage
for the purposes specified, that the defendants
were not protected by the exceptions, and that
the plaintiffs were entitled to damages. The
Renee Hyaffil. .32 T. L. R. 83— Evans, P.
4. Indorsement, Assignment and Transfer.
Wrongful Delivery to Consignee — Indorse-
ment of Bill of Lading by Consignee to Bank
— Title Subsequently Accruing — Trover.] — A
contract provided for the sale of certain oil to
P. & Co. on the terms of cash against docu-
ments, P. & Co."s name being inserted in the
bill of lading at their request as shippers, and
the bill of lading provided for the oil to be
delivered to them or to their order. The draft
attached to the bill of lading was then sold by
the sellers to certain bill brokers, who sub-
sequently sold the same on exchange to a bank
at Amsterdam. On the arrival of the oil in
London, P. & C. obtained from the defen-
dants, who were the agents of the shipping
company by whose vessel the oil w^as carried,
delivery of the oil, without delivery of the
bill of lading, on an indemnity being given
by P. & Co. P. & Co. then approached the
plaintiffs, who, as London correspondents of
the Amsterdam bank, were holding the bill of
lading as against the draft, and arranged with
them to advance the money to take up the
draft on condition that the plaintiffs should
retain the bill of lading, which P. & Co. there-
upon indorsed. In an action for trover, —
Held, that the plaintiffs were entitled to suc-
ceed, as, although P. & Co. were not entitled
to the possession of the bill of lading, the
plaintiffs took over the rights of theAmsterdam
bank on crediting them with the amount of
the draft, which rights were perfected by the
indorsement by P. & Co. of the bill of
lading. London Joifit-Stock Bay^k v. British
Amsterdam Maritime Agency, 104 L. T. 143;
16 Com. Cas. 102; 11 Asp. M.C. 571—
Channell, J.
VIII. FREIGHT.
See also Vol. XIII. 380, 2058.
Lump Sum Freight — Loss by Excepted
Peril— Delivery of Part of Cargo — Right of
Shipowner to Recover Freight.] — By a charter-
party a ship of the respondents was to proceed
to a named port and there load a full and
complete cargo of pit props, and then proceed
to a port in the United Kingdom and deliver
the same to the appellants on being paid as
freight a lump sum of 1,600/., to be paid in
cash on unloading and right delivery of the
cargo. The charterparty contained an excep-
tion of "perils of the seas." The ship duly
loaded her cargo, and proceeded to the port of
discharge, but was wrecked outside that port
by perils of the seas, and became a total loss.
About three-quarters of the cargo was saved
and delivered to the appellants : — Held, that
the shipowners were entitled to the full
freight. Thomas v. Harrowing Steamship
Co., 83 L. J. K.B. 1662; [1915] A.C. 58;
111 L. T. 653; 12 Asp. M.C. 532; 19 Com.
Cas. 454; 30 T. L. R. 611— H.L. (E.)
Judgment of the Court of Appeal (82 L. J.
K.B. 636; [1913] 2 K.B. 171) affirmed. lb.
Dead Freight— Liability of Bill of Lading
Holders.] — A bill of lading was in the follow-
ing terms : " Shipped . . . being marked and
numbered as in the margin . . . unto order,
he or they paying freight for the said goods
and performing all other conditions and excep-
tions as per charterparty . . . per the rate of
freight as per charterparty per ton of
2,2401b. gross weight delivered in full; six-
pence less if ordered to a direct port on
signing last bill of lading." The charterparty
provided (inter alia) as follows : " Freight
twelve shillings and sixpence sterling per
ton . . . all per ton of 2,240 lb. English
gross weight delivered . . . charterers to have
the option of shipping other lawful merchan-
dise ... in which case freight to be paid on
steamer's dead weight capacity for wheat or
maize in bags at the rates above agreed on for
heavy grain . . . but steamer not to earn
more freight than she would if loaded with a
full cargo of wheat or maize in bags." The
vessel left port half loaded owing to the fact
that the charterer could provide no further
cargo : — Held, that, on the true construction
of the bill of lading and charterparty, the
plaintiffs were only entitled to payment at the
rate of 12s. per ton gross weight delivered,
and could not support a claim in respect of
dead freight. Red " R " Steamship Co. v.
Allatini, 103 L. T. 86; 15 Com. Cas. 290:
11 Asp. M.C. 434 ; 26 T. L. R. 621— H.L. (E.)
Held, also, that the defendants were en-
titled to 5 per cent, interest on the sum
deposited with the dock company. lb.
Authority to Collect — Assignment.] — The
master of a steamer gave to the plaintiffs,
who were the agents of the steamer at the
port where she discharged her cargo, a docu-
ment in the following terms : "I hereby
authorize Messrs. H. G. Harper & Co..
Cardiff, to collect the freight due to my
steamer the s.s. Casablanca on the cargo of
timber from Riga ex my steamer." The
plaintiffs in consideration of receiving that
document made disbursements on behalf of
the steamer. The freight on the cargo, which
was timber, could not be ascertained till after
it was measured, but the cargo was delivered
to the various consignees, leaving the amount
of freight payable to be ascertained after the
steamer had left the port. The plaintiffs sued
the receivers of a parcel of timber for the
1451
SHIPPING.
1452
freight due in respect of such parcel without
joining the owners of the steamer as plain-
tiffs, alleging that such freight had been
assigned to them : — Held, that the document
given by the master of the steamer to the
plaintiffs was a mere authority to collect the
freight on behalf of the owners of the
steamer, and was neither a legal nor an equit-
able assignment of the freight ; that if it was
an assignment at all it was only an equitable
assignment, and that therefore the plaintiffs
were not entitled to sue for the freight in their
own name. Harper & Co. v. Bland d Co.,
84 L. J. K.B. 738; 112 L. T. 724; 20 Com.
Cas. 143; 31 T. L. R. 116— Bailhache, J.
Lien for Unsatisfied Freight — Cargo —
Debenture-holders' Action — Receiver and
Manager — Powers of Receiver.] — The respon-
dent was in a debenture-holders" action
appointed receiver and manager of Ind, Coope
& Co., and as such carried on the company's
business. He wrote to the company's agents
at Malta an order for the delivery of beer
and signed the letter " Ind, Coope & Co. By
Arthur F. Whinney, Receiver and Manager."
The beer was sent imder a bill of lading which
provided that the shipowner should have a
lien for the freight and charges, not only
on the goods sent, but also " for any pre-
viously unsatisfied freight and other charges
due either from shippers or consignees to the
shipowner." The Malta agents claimed not
only the freight for the particular cargo, but
also the unsatisfied freight and charges on
previous consignments. It had for years been
the practice of Ind, Coope & Co. to ship their
goods under bills of lading containing the
stipulation as to previously unsatisfied freight :
— Held (Lord Shaw and Lord Mersey dis-
senting), that as a bill of lading primarily
affects only the particular cargo shipped, and
as the respondent was both shipper and con-
signee, the respondent was not bound by the
stipulations as to previous freight. By Lord
Atkinson : The respondent had no power with-
out leave of the Court to create such a lien.
Moss Steamship Co. v. Whinney, 81 L. J.
K.B. 674; [1912] A.C. 254; 10-5 L. T. 305;
12 Asp. M.C. 25 : 16 Com. Cas. 247 ; 55 S. J.
631; 27 T. L. R. 513— H.L. (E.)
Decision of the Court of Appeal (79 L. J.
K.B. 1038: [1910] 2 K.B. 813) affirmed. lb.
IX. DEMURRAGE.
1. Time and Calculation of Days.
Sec also Vol. XIII. 457, 2072.
"Working day" — "Surf day" — Custom of
the Port of Iquique — Effect of Custom in Con-
struction of Charterparty.' — A cargo of lumber
was shipped on board the plaintiff's ship for
delivery at tlie port of Iquique under a bill of
lading which provided that the charterers or
assigns should pay freight " and all other con-
ditions as per charterparty." The charter-
party, which provided for a certain number
of lay days for loading and discharging the
ship, contained a clause that discharge was
to be given with " despatch according to the
custom of the port, of discharge (but not less
than thirty mille per working day) at such
safe wharf, dock or place as the charterers or
their agents shall designate," and for each
and every day's detention by default of the
charterers or their agents a certain sum was
to be paid. In an action by the plaintiffs
against the assigns of the bill of lading to
recover demurrage for delay in the discharge
of the cargo at Iquique the defendants, in
respect of certain days for which demurrage
was claimed, pleaded in effect that according
to the custom of the port of Iquique these
days, when entered b}' the captain of the port
in the register of the port as " surf days,"
were not included in the term " working
day"; that the plaintiffs at the time the
charterparty was made or at the time of the
loading of the ship either knew or ought to
have known that there was a well-established
custom of the port of Iquique that " surf
days " — that is, days on which the operation
of unloading was not only dangerous to life
and property, but was commercially impracti-
cable— were not reckoned as working days,
and that this custom applied also to half surf
days, which were only reckoned as half
working days, and that on days or part days
which appeared as surf or half surf days in
the port register, or in the alternative days or
part days which were in fact surf days, persons
who had engaged to take delivery were not
bound to do so ; and that the charterparty,
according to the customary interpretation put
upon one in that form, incorporated every cus-
tom of the port of discharge, and where the
port of discharge was Iquique the custom of
that port as regards surf days ; that at that
port the words " working daj' " in the charter-
party meant what they would mean at the
port of Iquique according to the custom of that
port, and that all parties to the charterparty
were bound by the custom : — Held, upon the
facts stated in the pleadings, and assuming
them to be true, that, as the custom was not too
vague and unreasonable so that it could not be
applied for the purpose of construing the
ciaarterparty, it was a valid custom which
excluded " surf days " from " working days,"
and that the plaintiffs, therefore, were not
entitled to recover demurrage in respect of
" surf davs." British and Mexican Shipping
Co. V. Lockett, 80 L. J. K.B. 462; [1911]
1 K.B. 264 : 103 L. T. 868 ; 11 Asp. M.C. 565 ;
16 Com. Cas. 75— C. A.
Rate but no Time Specified — Obligation of
Ship to "Wait after Expiration of Time Limited
for Loadings — In cases where the charter-
party contains a clause limiting the rate of
loading and discharging cargo, but not limit-
ing the number of days the ship may be kept
on demurrage, the latter will be limited by
law to what is reasonable in the circum-
stances, as circumstances may happen to exist
or emerge. View of Lord Travner in Lilly
V. Stevenson (22 Rettie, 278. at p. 286) fol-
lowed. Wilson V. Otto Thoresen's Linie,
79 L. J. K.B. 1048; [1910] 2 K.B. 405;
103 L. T. 112; 15 Com. Cas. 262; 11 Asp.
M.C. 491; 54 S. J. 655; 26 T. L. R. 546—
Bray, J.
Colliery Guarantee — Incorporation in
Charterparty — Exceptions — " Any other cause
1453
SHIPPING.
1454
beyond my control" — " Ejusdem generis."] —
By a charterparty the plaintiff chartered the
defendants' ship the Aldgate to proceed to
Hull (Alexandra Docks) and " there take on
board as tendered in the usual manner accord-
ing to the custom of the place as per colliery
guarantee " a full and complete cargo of
coals. The Aldgate was "to be loaded in
120 hours on condition of usual colliery guar-
antee." The colliery guarantee given by the
plaintiff contained tlie following clause :
" Sundays, Saturdays, bank holidays, cavil-
ling days, and colliery holidays excepted.
Time not to count until after the said steamer
is wholly unballasted and ready in dock to
receive her entire cargo. Strikes of pitmen
or workmen, frosts or storms, and delays
at spouts caused by stormy weather, and any
accidents stopping the working, leading, or
shipping of the said cargo, also restrictions
or suspensions of labour, lock-outs, delay on
the part of the railway company either in
supplying waggons or leading the coals, or
any other cause beyond my control, such stop-
page occurring any time between the present
date and actual completion of loading always
excepted." The Aldgate arrived in the
Alexandra Dock. Hull, and gave notice of
readiness to load by 9 a.m. on July 23, 1907 ;
and her lay hours would then begin to run
subject to any exceptions in the colliery
guarantee, and would expire on July 30 at
9 A.M. Owing, however, to the large number
of ships which were waiting to load in turn
before the Aldgate. she did not get to a berth
under a tip until midnight, August 1, and she
completed loading her cargo on August 7. The
delay arose in part from the inability of the
railway to deal with the traffic. In a claim
by the owners of the Aldgate for demurrage,
— Held, that the Aldgate was an arrived ship
when she arrived in the dock and gave her
notice of readiness to load on July 23 at
9 A.M., and that the lay hours then com-
menced to run ; that the exception in the
colliery guarantee of " any other cause beyond
my control " must be read ejusdein generis
with the words that preceded them, and that
the exception did not prevent the lay hours
running against the plaintiff. Thorman v.
Doicgate Steamship Co., 79 L. J. K.B. 287;
[1910] 1 K.B. 410 ; 102 L. T. 242 ; 15 Com.
Cas. 67; 11 Asp. M.C. 481~Haniilton, J.
Monsen v. Macfarlane, McCrindell cf Co.
(65 L. J. Q.B. 57; [1895] 2 Q.B. 562) and
Richardsons and Samuel if Co., In re
(66 L. J. Q.B. 868; [1898] 1 Q.B. 261), fol-
lowed. Larsen v. Sylvester .f Co. (77 L. J.
K.B. 993; [1908] A.C. 295) and s.s. Knuts-
ford, Lim. v. Tillmanns d Co. (77 L. J.
K.B. 977; [1908] A.C. 406) discussed. lb.
Time to Count — " Strikes ... or any cause
beyond the control of the charterer" — Defi-
ciency of Railway Waggons for Taking
Delivery of Cargo.] —.\ piintod clause m a
charterparty provided as follows : " The
steamer to be loaded in usual turn, with cus-
tomary despatch, at Goole, and discharged in
thirty-six running hours, commencing first
high water on or after arrival at or off the
berth, unless berthed before, but time, unless
used, not to commence between 6 p.m. and
6 A.M. ..." On the margin the following
clause was written : " When steamer loads at
Hull seventy-two running hours will be
allowed for loading and discharging, which
time is to commence when steamer is at or off
loading berth, but should steamer be pre-
vented from entering the loading dock owing
to congestion time to commence from the first
high water after arrival off the dock " : —
Held, that when the steamer loaded at Hull
the words in the printed clause " time . . .
not to commence between 6 p.m. and 6 a.m."
did not apply, and that the time commenced
to count from the time the steamer got to the
loading berth. The charterparty also con-
tained the following exception clause :
" Strikes of workmen, lock outs, pay days,
idle days or cavilling days, or riots, or frost,
rain or floods, or any accident or any cause
whatsoever beyond the control of the charterer
which may prevent or delay her loading or
unloading excepted." At the port of discharge
there was a delay of seventeen hours owing
to a deficiency of railway waggons, this being
due to the abnormal demands upon the rail-
way company at the material time. On a
claim for demurrage in respect of the seventeen
hours, — Held, that the words in the exception
clause, " or any cause whatsoever," were suffi-
ciently wide to exclude the ejusdem generis
rule of construction ; that in the circumstances
the charterers came within the exceptions
clause, and were therefore not liable for
demurrage. France, Fenwick d- Co. v.
Spackman, 108 L. T. 371; 18 Com. Cas. 52;
12 Asp. M.C. 289— Bailhache. J.
Despatch Money — "All time saved in
loading" — Sunday.] — A charterparty provided
that the ship should load at a certain rate
per running day " (Sundays . . . excepted),"
and for demurrage, and contained a clause
that the owners should pay as despatch money
" 10/. per day for all time saved in loading."
The charterer was entitled to ten and a half
lay days, but only occupied five days in load-
ing. A Sunday intervened between the ex-
piration of these five days and that of the lay
days : — Held, that in calculating the number
of days in respect of which despatch money
was payable, the Sunday must be included,
so that the charterer was entitled to payment
of despatch money for six and a half days.
Maioson Shipping Co. v. Beyer, 83 L. J.
K.B. 290; [1914] 1 K.B. 304; 109 L. T. 973;
19 Com. Cas. 69; 12 Asp. M.C. 423-
Bailhache, J.
Laing v. Hollway (47 L. J. Q.B. 512;
3 Q.B. D. 437) and Royal Mail Steatn Packet
Co. and River Plate Steamship Co., In re
(79 L. J. K.B. 673; [1910] 1 K.B. 600),
followed. lb.
2. Place.
Ship to Go to Wharf " or so near thereunto
as she may safely get" — Wharf Occupied by
Another Vessel — Strike at Port — Ship Ordered
by Harbour Master to Another Place in Port
— Delay at that Place — Possibility of Dis-
charge into Lighters — Ship whether Arrived.]
— By a charterparty it was agreed between the
plaintiffs, the owners of the steamship Fox,
1455
SHIPPING.
1456
and the defendant, the charterer, that the
steamship should load a cargo of flour at Hull
and should proceed with all convenient speed
" to London as ordered or so near thereunto
as she may safely get," and there deliver the
same, cargo to be discharged in two weather
working days, and if longer delayed demurrage
to be paid at the rate of 71. a day. The
charterparty contained no clause exempting
the plaintiffs from liability for loss resulting
from strikes. The defendant ordered the
steamship to go to Keen's Wharf at London.
On May 25, 1912, she arrived opposite Keen's
Wharf, but could not get alongside the wharf
owing to another vessel being berthed there.
She then went, pursuant to the order of the
harbour master, to a place called East Lane
Tier, about a quarter of a mile from the wharf
where she lay. On June 12, 1912, no part of
her cargo having yet been discharged, she
went, pursuant t^o the order of the defendant's
agent, to Chatham, where by June 14, 1912,
she completed discharging her cargo. During
the whole of the time the Fox was at London
the other vessel had remained at Keen's
Wharf, and a general dock strike had been in
existence at the Port of London. The evi-
dence shewed that, notwithstanding the strike,
the cargo of the Fox could have been dis-
charged into lighters at East Lane Tier by her
crew or by the defendant's men, but that that
was not a usual place of discharge, and that it
was not customary to discharge cargoes of flour
into lighters. The plaintiffs lirought an action
against the defendant in the County Court,
claiming seventeen days' demurrage from
May 28, 1912, to June 14, 1912. The County
CoiH't Judge gave judgment for the defendant.
The Divisional Court reversed this decision and
gave judgment for the plaintiffs. The defen-
dant appealed. The Court of Appeal, by a
majority, reversed the judgment of the Divi-
sional Court, and restored that of the County
Court Judge, Buckley L.J., and Scrutton, J.,
held that by the contract the plaintiffs were
bound in the first instance to wait a reason-
able time for the berth at Keen's Wharf to
become vacant; that, if the plaintiffs had
waited a reasonable time for that berth to
become vacant, they would have been entitled
to call upon the defendant to take delivery of
the cargo at an alternative place so near there-
unto as she could safely get, provided they
gave them notice of the alternative place
selected and called upon them to take delivei-y
there ; that they had never called upon the
defendant to take delivery at East Lane Tier;
that therefore the Fox was never an arrived
ship ; and that the plaintiffs could not recover.
Kennedy, L.J., lield that in the circumstances
the obstacle to the Fox getting a berth at
Keen's Wharf was of so permanent a character
that the alternative destination of a place so
near thereunto as she could safely get at once
came into force in favour of the plaintiffs ; that
no formal notice by the plaintiffs of a claim to
be on demurrage at the alternative place was
required; that East Lane Tier was a place
where the cargo of the vessel could reasonably
have been discharged by means of lighters
and was a place as near to the wharf as she
could safely get ; that the Fox on reaching
East Lane Tier was an arrived ship ; and that
the plantiffs were entitled to recover. The Fox,
83 L. J. P. 89; 30 T. L. E. 576— C.A.
Decision of the Divisional Court (30 T. L. K.
58) reversed. lb.
3. Loading and Discharging : Eules of
Port.
See alw Vol. XIII. 470, 2083.
Reasonableness — Custom — Port of NoYoros-
sisk — Distinction between Law and Custom.]
— A custom is a reasonable and universal rule
of action in a locality, followed, not because
it is believed to be the general law of the land
or because the parties following it have made
particular agreements to observe it, but because
"it is in effect the common law within that
place to which it extends." Alleged custom
of the port of Novorossisk considered. Anglo-
Hellenic Steamship Co. v. Dreyfus, 108 L. T.
36; 12 Asp. M.C. 291; 57 S. J. 246;
29 T. L. E. 197— Scrutton, J.
" Customary steamship despatch as fast as
the steamer can deliver" — Stevedore to be
Named by Charterers — Custom for Discharge
by Harbour Authority — Negligent Delay — Lia-
bility of Charterers.] — By the terms of a
charterparty a cargo of pits props was to be
discharged with the customary steamship
despatch as fast as the steamer could deliver
during the ordinary working hours of the
port, but according to the custom thereof, cer-
tain days excepted. The cargo was to be
taken from alongside the steamer at charterers*
risk and expense as customary. There was a
proviso for demurrage at a certain rate per
ton should the steamer be detained beyond the
time stipulated. Discharging was to be
effected by the charterers' stevedore, the
steamer paying for it at a fixed rate. The
steamer was sent to a proper dock in the port,
and to a proper quay in this dock, and was
there discharged by the harbour authority, as
this was the custom in the port in the case of
such cargoes, and she was not discharged l\v
a stevedore named by the charterers. Tlie
harbour authority discharged negligently,
causing detention of the steamer. In an
action bj' the shipowners against the charterers
for demurrage, — Held, that the charterers were
not liable, because the words of the charter-
party as to discharge did not amount to a
contract to discharge in a specified time, so as
to create a liability independently of the rest
of the contract ; and because the harbour
authority was not the agent of the charterers,
or no more their agent than the shipowners'
agent, and therefore the charterers were not
responsible for the harbour authority's negli-
gence. Dicta in Weir d Co. v. Richardson
(3 Com. Cas. 20) followed. The Kingsland.
80 L. J. P. 33; [1911] P. 17; 105 L. T. 143;
16 Com. Cas. 18 ; 12 Asp. M.C. 38 ; 27 T. L. E.
7.5— D.
Custom of Port of Iquique.] — See British
and Mexican Shipping Co. v. Lockett, ante,
col. 1452.
1457
SHIPPING.
1458
4. Causes of Delay.
a. Strikes.
See also Vol. XIII. 480, 2090.
Strike Clause — " Workmen essential to the
discharge of the cargo" — "Loading" and
"Discharge."] — A charterparty contained a
strike clause providing that if the cargo cannot
be discharged by reason of a strike or lock-out
of any class of workmen essential to the dis-
charge of the cargo, the days of discharging
shall not count during the continuance of such
strike or lock-out." On the arrival of the
ship at the port of discharge a strike of carters
■was in existence, in consequence of which the
docks had become congested, and this condition
of affairs rendered it impossible for the con-
signee to accept delivery of the cargo, there
being neither space for the cargo in the docks,
nor means of taking it away when tendered
over the ship's rail : — Held, that the carters
in these circumstances were not a " class of
workmen essential to the discharge " within
the meaning of the clause. Held, also, that
" discharge "is a joint act, necessitating
co-operation on the part of the ship and the
receiver of the cargo, and that the obligation
of the ship under this term is fulfilled when
its crew or its stevedore's men are in a position
to offer, and do offer, delivery to the consignee
over the ship's side. Langham Steamship Co.
V. Gallagher, [1911] 2 Ir. E. 348; 12 Asp.
M.C. 109— K.B. D.
Loading Delayed by Strike.] — A charter-
party for the carriage of a cargo of coal which
stipulated for the completion of the loading
within a certain period, contained a clause
exempting the charterers from liability for
time lost through strikes, or any unavoidable
accidents bej'ond their control " preventing or
delaying the working, leading, or shipping of
the said cargo." In an action for demurrage
against the charterers they pleaded this clause
of exception, averring that the delay had been
caused b^' a strike. It was proved, first, that
a strike of coal trimmers had caused the
colliery company, with whom the charterers
had contracted for delivery of the coals, to
restrict their output and they did not deliver
the coals in time for the loading which, but
for the strike, they would probably have done;
but secondly, that the contract between the
charterers and the colliery company contained
no clause binding the company to deliver the
coals in time for the loading; and thirdly, that
it would not have been impossible for them to
deliver the coals in time had they been bound
to do so : — Held, that the charterers were
liable for demurrage in respect that — even if
the strike were the direct cause of the delay,
which was not proved — the failure of the
charterers to contract for the timeous delivery
of the coal was a failure to take reasonable |
measures to prevent avoidable delay, which
excluded them from the Ijenefit of the excep- j
tion in the charterparty. Dampskibsselskabet I
Damnark v. Pouhen •{■ Co., [1913] S. C. 1043 I
— Ct. of Sess. '
Delay by Strike — Construction of Clause
Relating to Time Allowed for Discharging.] —
A charterparty contained the following clause :
" Time to commence when steamer is ready to
unload and written notice given, whether in
berth or not. In case of strikes, look-outs,
civil commotions, or any other causes or acci-
dents beyond the control of the consignees
which prevents or delays the discharging, such
time is not to count unless the steamer is
already on demurrage " : — Held, that the
clause did not mean that time was not to
count at all if a strike delayed the discharging,
but that time should not count to the extent
of any delay caused by a strike. London and
Northern Steamship Co. v. Central Argentine
Railway, 108 L. T. 527 ; 12 Asp. M.C. 303—
Scrutton, J.
By a charterparty, time for discharging was
to commence " when steamer is ready to
unload and written notice given whether in
berth or not. In case of strikes . . . which
prevent or delay the discharging such time is
not to count unless the steamer is already in
demurrage." The ship arrived at her port of
discharge on January 12, and gave notice that
she was ready to discharge. At that time a
strike was going on, and no work was done
till January 27, when work was partially
resumed. On February 1.5 the strike ended.
Between January 27 and February 15 six and
a quarter normal days' work was done. The
ship did not get a discharging berth on
March 23 : — Held, first, that " such time "
in the charterparty meant the time for which
the discharging was actually prevented or
delayed by a strike, and did not apply to a
delay in getting a berth in consequence of a
strike; and secondly, that the period between
January 27 and February 15 should be
excluded, except six and a quarter days.
London and Northern Steamship Co. v.
Central Argentine Railway (108 L. T. 527)
approved. Central Argentine Railway v.
Marwood, 84 L. J. K.B. 1-593; [1915]' A.C.
981— H.L. (E.)
Exemption of any "claim for damages"
for Delay "by reason of" Strike — Congestion
at Port Following on Termination of Strike.]
— A charterparty which allowed ten days on
denmrrage beyond the lay days at a certain
rate, contained a clause providing that the
days for discharging should not count during
the continuance of a strike, and also providing
that in case of delay " by reason of " a strike
" no claim for damages " should lie. The ship
was detained at the port of discharge for four
days beyond the lay days, not owing to the
continuance of a strike, but owing to congestion
following on the termination of a strike. In
an action for demurrage for these four days, —
Held, first (following Leonis S.S. Co. v. Rank
(No. 2) (13 Com. Cas. 295), that the detention
was a " delay by reason of " a strike, which
excluded claims for damages ; and secondly,
that claims for damages for delay were not
limited to claims for detention beyond the
demurrage period, but included claims for
demurrage. Moor Line, Lim. v. Distillers
Co.. [1912] S. C. 514— Ct. of Sess.
Per Ijord Salvesen : Demurrage is agreed
damages to be paid for delay of the ship in
loading or unloading beyond an agreed period;
the distinction between denmrrage and damages
1459
SHIPPING.
1460
for detention being that one is liquidated
damages and the other unliquidated. 76.
Discharge " with customary steamship dis-
patch according to the custom of the port" —
Exception of Strike of " workmen essential to
the discharge" — Strike of Workmen in Char-
terers' Yard.^ — A firm of wood merchants
chartered a ship to bring a cargo of pit props
from St. Petersburg to Granton. The charter-
party did not stipulate for lay days, but pro-
vided that the ship should be discharged " with
customary steamship dispatch . . . according
to the custom of the " port; with the proviso
that if the cargo could not be discharged by
reason of a strike of any class of workmen
" essential to the . . . discharge of the cargo "
the time for discharging should not count
during the continuance of such strike. It was
the custom of tlie port of Granton for cargo
to be discharged direct into railway waggons,
and it was the charterers" practice to have the
loaded waggons brought into their woodyard,
which was near the dock, in order that the
props might be sorted liefore being sent to
purchasers. When the ship arrived at Granton
a strike of workmen in the charterers' yard
was in progress, and, although there was no
scarcity of labour at the quay, the railway
company, knowing that the waggons would be
detained in the yard, refused to supply them
except for conveyance of cargo direct from the
quay to purchasers. Part of the cargo was so
dealt with, but the discharge of the remainder
was delayed, and the ship was detained for
eleven days beyond the normal period for dis-
charge. In an action against charterers for
demurrage, — Held, first, that they had failed
to discharge with " customary dispatch " in
respect that the delay was due to circumstances
affecting, not the discharge — which was com-
plete when the cargo was transferred to the '
railway waggons, of which there was an ample I
supply — but only the subsequent disposal of '
the cargo: and secondly, that they could not
rely on the strike clause in the charterparty,
as the strike was not of " workmen essential
to the discharge." Dampskibssel/skabet Svend-
borg V. Love d- Stewart, Lim., [1915] S. C.
543— Ct. of Sess.
b. Other Causes.
See also Vol. XIII. 482. 2093.
Delay in Berthing — Port Regulations as to
Unloading — Ejusdem Generis. — A ship of the
plaintiffs was chartered by the defendants j
under a charterparty dated August 25, 1909, |
to carry coal to the port of S. Clause 8 of the I
charterparty provided that the cargo was " to
be taken from alongside by consignees at port
of discharge ... at the average rate of 500
tons per day . . . provided steamer can de-
liver it at this rate ; if longer detained con-
signees to pay steamer demurrage. . . . Time
to commence when steamer is ready to unload
and written notice given, whether in berth
or not. In case of strikes, lockouts, civil
commotions, or any other causes or accidents
beyond the control of the consignees which
prevent or delav the discharging, such time is
not to count. .". ." On September 22, 1909,
the steamer moored inside the port, and a
written notice of readiness to unload was
given. At that time all the berths in the port
were occupied, and none became vacant till
September 25, when the ship was berthed
alongside a wharf. At this port there had
been a regulation since 1907 that shore
labourers should not work at a ship until she
was in berth alongside a wharf. Shore
labourers were required by the ship to bring
the cargo to the ship's rail and by the con-
signees to take the cargo from there, and there-
fore no unloading commenced till September 25.
The plaintiffs claimed demurrage in respect of
the delay : — Held, that, in view of the
provision in the charterparty that time for
demurrage was to commence when the steamer
was ready to unload and written notice given,
" whether in berth or not," the steamer must
be regarded as ready to unload on Septem-
ber 22; that the words in the earlier part of
clause 8 of the charterparty — " provided
steamer can deliver at this rate " — had no
reference to a delay due to a lack of shore
labour; and that the delay in unloading was
not due to a cause ejusdem generis with
" strikes." And held, therefore, that the
plaintiffs were entitled to demurrage in respect
of the delay. NorthHeld Steamship Co. v.
Uiuon des Gaz, 81 L. J. K.B. 281; [1912]
1 K.B. 4.34; 105 L. T. 853; 17 Com. Cas. 74;
12 Asp. M.C. 87 ; 28 T. L. E. 148— C. A.
"Detention by cranes" — "Other unavoid-
able cause" — Delay in Getting Berth.] — A
demurrage clause in a charterparty excepted
from the time specified for loading a number
of causes of delay, including strikes, floods,
riots, storms, accidents to machinery, " deten-
tion by cranes," " or any other unavoidable
cause " : — Held, first, that delay caused by
failure to get a berth, and consequently the
use of a crane, owing to congestion of shipping
at the port of loading, was not a " detention
by crane " within the meaning of the charter-
party; and secondly, that such delay was not
covered by the words " or any other unavoid-
able cause," these words referring to causes
ejusdem generis with the enumerated causes,
and not to delays arising naturally in the
ordinary routine of working the port.
AbcJiurch Steamship Co. v. Stinnes. [1911]
S. C. 1010— Ct. of Sess.
"Stoppage at collieries" — Temporary Re-
striction of Output of Colliery — Causes which
"prevent or delay the loading."! — A charter-
party stipulated that a vessel should load a
cargo of coals in sixty running hours, time
not to count in cases of " delays through
stoppages at collieries with which steamer
is booked to load," or " any accidents or cause
beyond control of the charterers which may
prevent or delay the loading." A colliery
company, who were supplying to the char-
terers a certain class of coal which was to
form part of the cargo, having temporarily
restricted the output of their pits for the
purpose of economic working and thereby
diminished the supply of that class of coal,
failed to deliver coal alongside the vessel
in sufficient quantities to allow loading to
proceed continuously, and the consequent
delay caused the vessel to exceed her stipulated
1461
SHIPPING.
1462
loading time : — Held, that the charterers were
not relieved from a claim for demurrage by
the clause of exemption in the charterparty in
respect, first, that the restricted output of the
coal in question was not a " stoppage at
collieries " in tlie sense of the charterparty,
and, secondly, that it did not " prevent or
delay the loading," but delayed the provision
of the cargo, and that the obligation on the
charterers to provide a cargo was an absolute
duty unless expresslv excepted. " Arden "
Steamship Co. v. Maihwin, [1912] S. C. 211
— Ct. of Sess.
Deck Cargo — Damage to Yessel by Shifting
— Time Occupied by Repairs — " Damage pre-
venting working of vessel" — Liability of Ship-
owner.]— The owners of a steamship chartered
her to the charterers by a charterparty which
contained the following clause : " In the event
of loss of time from deficiency of men or stores
breakdown of machinery collision docking
stranding or other accident or damage prevent-
ing the working of the vessel for more than
twenty-four consecutive hours the time lost
shall be allowed to the charterers including
first twenty-four hours . . . but should the
vessel be driven into port or to anchorage by
stress of weather or from accident to the cargo
such detention or loss of time shall be at the
charterers' expense." The vessel was loaded
with a cargo of lumber, including a deck
cargo. While on her voyage she encountered
heavy weather, and the stowage of the deck
cargo shifted and caused damage to the vessel.
It was thereupon decided to put into port,
where it became necessary to discharge the
deck cargo and do certain repairs to the vessel,
with the result that she was detained for a
period of thirty-three days seventeen hours, of
which nine days and twelve hours were
occupied by the repairs. Upon a claim by the
owners in respect of the detention, — Held, that
the time occupied in repairing the damage to
the vessel could not be included in the time
lost under the last words of the above clause,
that during the time occupied by such repairs
the vessel was ofF hire, and that an allowance
must be made to the charterers in respect of
the period of nine days and twelve hours as
being time lost from " damage preventing the
working of the vessel." Burrell v. Green dt
Co., 84 L. J. K.B. 192: [1915] 1 K.B. 391;
112 L. T. 105; 20 Com. Cas. 84- 12 Asp. M.C.
589— C. A.
Arrival of Ship before Bills of Lading —
Refusal of Master to Discharge until Bills of
Lading Produced — Offer of Bank Guarantee.]
— A ship carrying pit [)rops from a port in
Sweden to a port in the Firth of Forth arrived,
as often happened in the trade, before the
bills of lading, which were sent by post.
Contrary to the usual practice in such cases,
the master, acting on the charterer's instruc-
tions, refused to discharge the cargo without
production of the bills, although the consignees
were ready to take delivery, and offered to
give a bank guarantee indemnifying him from
all liability. After a delay of some twenty-
four hours the ship began to discharge the
cargo, under an arrangement between the
agents of the charterer and a railway
company, into the bonds of the railway
company as wharfingers, and continued to do
so until the arrival of the bills of lading, when
she delivered the remainder of the cargo to
the consignees. The bills of lading provided :
" the captain to deliver all cargo on ship's
railing, and the same to be taken from there
by the consignee notwithstanding any custom
of the port to the contrary. The goods to be
received as fast as the steamer can deliver day
and night, or the same will be landed or put
into lighters at the risk and expense of the
consignee." In an action by the charterer
against the vendees of the cargo for demurrage
in respect of the detention of the ship prior
to the commencement of the discharge : —
Held, that the defenders were not liable — per
the Lord President, on the ground that there
was no unqualified obligation on the part of
the consignees, either at common law or under
the contract, to produce the bills of lading as
soon as the ship was ready to discharge, and
that the detention of the ship was due to the
unreasonable conduct of the pursuer, and not
to the fault of the consignees ; per Lord
Skerrington, on the ground that as the bills
of lading did not specify any period within
which the cargo must be discharged, the
obligation on the consignees was to use the
utmost dispatch practicable in the circum-
stances, which had been done. Lord
Johnston was of opinion that, although the
consignees were not entitled to delivery of
the cargo until the bills of lading were pro-
duced, the circumstances of the detention of
the ship were such as could not justify more
than nominal damages. Carlberg v. Wemyss
Coal Co., [1915] S. C. 616— Ct. of Sess.
Observations on the rights and duties of
the shipowner, the master, and the consignee
in the event of the consignee being unable to
produce the bills of lading for the cargo at
the port of discharge. lb.
5. Bate of Payment.
See also Vol. XIII. 491, 2100.
Detention beyond Lay Days for more than
a Reasonable Time — Damages — Basis of
Assessment.] — It was provided by demurrage
clauses in two charterparties that cargo should
be discharged from vessels at a specified rate ;
but if the vessels were " longer detained "
demurrage at a named rate was payable : —
Held, that it could not be implied that that
clause was applicable to, and damages at the
demurrage rate payable for, a reasonable
period of detention only, but that damages
were paj'able at the demurrage rate over the
whole period of detention. Western Steam-
ship Co. V. .imaral Sutherland (f Co., 82 L.J.
K.B. 1180 ; [1913] 3 K.B. 366 ; 109 L. T. 217 ;
12 Asp. M.C. .358 ; 19 Com. Cas. 1 ; 58 S. J. 14 ;
29 T. L. R. 660— Brav. J. New trial ordered,
83 L. J. K.B. 120i; [1914] 3 K.B. 55;
111 L. T. 113 ; 12 Asp. M.C. 493 ; 19 Com. Cas.
272; 30 T. L. R. 492— C. A.
X. CARGO.
1. Loading.
See also Vol. XIII. 2103.
Notice of Readiness to Load — Coal Cargo —
Right to Cancel — Stoppage at Colliery Con-
1463
SHIPPING.
1464
tinuing for Five Days from Time of Steamer
being Ready to Load.l — By a charterparty
dated February '29, 1912, the Adalands was to
proceed to Hull and there load a complete
cargo of coal. No particular colliery was
specified. Clause 5 provided that the cargo
was to be loaded in seventy-two running
hours, " time to count when notice of
readiness to receive the entire cargo is given
to the staithman or colliery agent or handed
in to his office between the hours of 6 a.m. and
noon. The loading date to be not before 6 a.m.
on the 7th April, but seven clear days' written
notice of definite loading date to be given by
owners. . . ." Clause 6 provided that "the
parties hereto mutually exempt each other
from all liability (except under the strike
rules) arising from or for time lost through
riots, strikes, lock-outs of workmen, or dis-
putes between masters and men, or by reason
of accidents to mines or machinery, obstruc-
tions on railways or in harbours (not including
congestion of ships or traffic), or by reason of
frosts, floods, fogs, storms, and any unavoid-
able accidents and hindrances beyond their
control, either preventing or delaying the
working, loading, or shipping of the said
cargo, occurring on or after the date of this
charter until the expiration of the loading
time. ... In the event of any stoppage or
stoppages arising from any of these causes
(other than a " strike ' as defined in the
strike rules) continuing for the period of five
days from the time of the steamer being ready
to load at the colliery or collieries for which
she is stemined, this charter shall become null
and void, provided, however, that no cargo
shall have been shipped on board the vessel
previous to such stoppage or stoppages." The
shipowners notified the charterers that the
vessel would be ready to load on April 22,
1912. On April 16, 1912, the charterers re-
fused to load as they said they could not get
coal from a particular colliery owing to a
stonpage at the collierv such as was contem-
plated by clause 6. On April 19, 1912, the
shipowners notified the charterers that the
vessel was in Hull roads on that date ready
for loading and at their disposal. The char-
terers not having loaded any cargo on the
Adalands the shipowners claimed damages : —
Held, first, that the five days mentioned in
clause 6 must be counted from April 22,
although the vessel was in fact ready to load
on A{)ril 19; and secondly, that the word
" stoppage " in clause 6 meant an entire
stoppage of work, and that as the charterers
had failed on the evidence to shew that there
was an entire stoppage which prevented any
loading for five days from April 22, they were
liable in damages for refusing to load.
Aktieselskabef Adalands v. Whitaker,
18 Com. Cas. 229 -Pi<-kford, J.
Detention of Vessel at Port of Loading —
Right of Charterer to Refuse to Load.] — The
principle whicii cntiflcs a chai-tercr to refuse
to load a vessel if he has reasonable ground
for l)elieving that she will not be able to
proceed to her destination with the cargo on
board within a commercially reasonable time
owing to the existence of a war cannot be
applied to a case where a vessel may be
delayed in starting on her voyage through a
strike in this country, which, however, does
not prevent the loading of the cargo. Ropner
d- Co. V. Ronnebeck, 84 L. J. K.B. 392;
112 L. T. 723: 20 Com. Cas. 95— Bailhache,
J.
Ready to Load — Maize Cargo — Bunker Coal
Stored on Deck.] — Held, on the evidence, that
a steamship was ready to load a cargo of
maize, notwithstanding that she had, when
tendered to the charterers, a large quantity
of coal stored on deck between the bulwarks
and the raised coamings, which coal had
formed part of the outward cargo and was
bought by the shipowner as bunker coal for
the homeward voyage. London Traders'
Shipping Co. v. General Mercantile Shipping
Co., 30 T. L. K. 492— C. A.
Decision of Scrutton, J. (29 T. L. E. 504)
affirmed. lb.
Rights and Obligations of Harbour
Authority — Duty to Provide Labour for Load-
ing Cargo or Permitting Shipowner to Employ
Labour — "Trade dispute."] — A ship belong-
ing to a Belfast firm, after its arrival at Ayr
harbour for the purpose of loading a cargo,
was detained there owing to the refusal of the
harbour employees to work the ship. These
employees were members of a Scottish trade
union, and their refusal to do the work was
due to the existence of a strike of the ship-
owners' workmen at Belfast. The shipowners
offered to supply their own labour to load the
ship, but the harbour trustees refused the offer
on the ground that they would not permit
outsiders to work their cranes. The local
secretary of the Scottish trade union had
threatened a general strike in the harbour if
outside labour was imported. In an action of
damages for the detention of the ship, brought
by the shipowners against the harbour trustees,
the defenders maintained that they were not
in the circumstances bound to load the ship or
to allow it to be loaded by outside labour in
I'espect, first, that they had a reasonable dis-
cretion in the matter, and, secondly, that, if
there was a duty resting on them, performance
was, in the circumstances, excused by reason
of its impossibilit}'. They also maintained
that, as they were acting in furtherance or
contemplation of a trade dispute in Belfast or
otherwise with their own employees they were
relieved of liability under section 3 of the
Trade Disputes Act, 1906 -.—Held, that, while
the defenders were not, in view of the terms
of their private Acts, bound to supply labour.
they were bound, if they did not do so, to
allow shipowners to employ their own labour ;
and, as this was not in the circumstances
impossible, they were liable to the pursuers in
damages. Held also, that section 3 of the
Trade Disputes Act, 1906, did not apply.
Milligan ((■ Co. v. Ayr Harbour Trustees,
[1915] S. C. 937— Ct. of Sess.
2. Loss BY Fire.
Damage to Goods — Fire — Exceptions — War-
ranty of Seaworthiness — Liability of Ship-
owner.]— Section 502 of the Merchant Ship-
ping Act, 1894, which protects the owner of
1465
SHirPIXG.
1406
a British sea-going ship from liability to make
good any loss or damage to goods by reason
of fire on board the ship happening without
his actual fault or privity, applies whenever
there has been damage to goods by fire
without the shipowner's fault or privity,
irrespective of whether there has been a breach
by him of the warranty of seaworthiness.
Virginia Carolina Chemical Co. v. Norfolk
and North American Steam Shipping Co.
(No. 1), 81 L. J. K.B. 129; [1912] 1 K.B.
229: 105 L. T. 810; 12 Asp. M.C. 82;
17 Com. Cas. 6; 28 T. L. R. 85— C.A. Appeal
compromised, 82 L. J. K.B. 389; [1913]
A.C. 52— H.L. (E.)
The Court of Appeal having decided as a
preliminary question of law that section 502
of the Merchant Shipping Act, 1892, which
exempts the owner of a British sea-
going ship from liability for loss or damage
to goods by fire where the loss or damage
happens without his actual fault or privity,
applies to protect the shipowner, even
although there has been a breach by him of
the warranty of seaworthiness, but that the
parties to a contract for carriage of goods by
sea may, by the terms of their contract,
exclude the operation of this section, and that
on the construction of a bill of lading the
parties had excluded the operation of the sec-
tion, the House of Lords, on appeal thereto
from the Court of Appeal's decision, directed
that the facts should be ascertained before
the preliminary question of law could be
decided. On the re-hearing, — Held, that the
vessel in question was not unseaworthy when
she started on her voyage, and that the fire
which caused the damage to the plaintiff's
goods was occasioned by an act of negligence
on the part of one of the ship's engineers, for
which act of negligence the shipowners were
exempt from liability by the terms of the bill
of lading. Virginia Carolina Chemical Co. v.
Norfolk and North .America Steam Shipping
Co. (No. 2), 107 L. T. 320; 12 Asp. M.C. 233;
17 Com. Cas. 277; 56 S. J. 722; 28 T. L. R.
513 — Hamilton, J. See preceding case.
Statutory Protection in Case of Fire on
Board — Agreement to Exclude Operation of
Statute — Terms of Bill of Lading.] — The
plaintiffs shipped goods on board the defen-
dants' vessel. The bill of lading provided
that the goods were "to be delivered subject
to the exceptions and conditions herein men-
tioned, in the like good order and condition."
Among the exceptions thus referred to were
the following : "1. Fire on board, in hulk or
craft or on shore, stranding and all accidents,
loss and damage whatsoever from defects in
hull, tackle, apparatus ... or from perils of
the seas ... or from any act, neglect or
default whatsoever of the pilot, master,
officers, engineers, crew, stevedores, servants,
or agents of the owners and/or charterers,
ashore or afloat, in the management, loading,
stowing, discharging, or navigation of the
ship, or other craft, or otherwise, the owners
and /or charterers being in no way liable for
any consequences of the causes before men-
tioned." " 11. It is agreed that the main-
tenance by the shipowners of the vessel's class
(or, in the alternative, failing a class, the
exercise by the shipowners and/or charterers
or their agents of reasonable care and diligence
in connection with the upkeep of the ship)
shall be considered a fulfilment of every duty,
warranty, or obligation, and whether before
or after the commencement of the said
voyage." The plaintiffs' goods were lost
without the actual fault or privity of the
defendants by reason of fire on board the ship.
The ship was unseaworthy at the commence-
ment of the voyage owing to the insufficient
packing and bad stowage of a quantity of
metallic sodium which was taken on board.
The fire was caused by sea water coming in
contact with the sodium : — Held, that tliere
was nothing in the terms of the bill of lading
which shewed an agreement by the parties to
exclude the operation of section 502 of the
Merchant Shipping Act, 1894, which exempts
the owner of a British seagoing ship from
liability for the loss of goods happening with-
out his actual fault or privity by reason of
fire on board the ship. Ingram d Royle, Lim.
v. Services Martimes du Triport (No. 1),
83 L. J. K.B. 382; [1914] 1 K.B. 545;
109 L. T. 733 ; 19 Com. Cas. 105 ; 12 Asp. M.C.
387 ; 58 S. J. 172 ; 30 T. L. R. 79— C.A.
Virginia Carolina Chemical Co. v. Norfolk
and North .American Steam Shipping Co.
(81 L. J. K.B. 129; [1912] 1 K.B. 229;
appeal compromised in H.L., 82 L. J. K.B.
.389; [1913] A.C. 52) distinguished. lb.
Judgment of Scrutton, J. (82 L. J. K.B.
374; [1913] 1 K.B. 538), reversed. 76.
Fire Caused by Unseaworthiness — Loss
without Actual Fault or Privity of Owner —
Burden of Proof.] — By section 502 of the
Merchant Shipping Act, 1894 : " The owner
of a British sea-going ship . . . shall not be
liable to make good . . . any loss or damage
happening without his actual fault or privity
. . . where any goods, merchandise, or other
things whatsoever taken in or put on board
his ship are lost or damaged by reason of fire
on board the ship." A ship carrying a cargo
of oil was unseaworthy at the commencement
of her voyage by reason of defects in her
boilers. She encountered bad weather, and
was driven on shore in consequence of want
of steam power caused by the condition of the
boilers. The oil escaped from the tanks,
caught fire, and was lost : — Held, that under
the above section the onus was on the ship-
owners of proving the absence of actual fault
or privity on their part, and, in the case of
a company, the onus was on the registered
managing owner of shewing that he did not
know, and ought not to have known, of the
unseaworthy condition of the ship. Lennard's
Carrying Co. v. Asiatic Petroleum Co.,
84 L. J. K.B. 1281; [1915] A.C. 705;
20 Com. Cas. 283 ; 113 L. T. 195 : 59 S. J. 411 ;
31 T. L. R. 294— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 861; [1914] 1 K.B. 419) affirmed. Ih.
3. Delivery and Discharge.
See aho Vol. XIII. 527, 2105.
Shipowners Responsible to Charterers for
Full DeliYery of Cargo — Stevedores to be Em-
14()7
SHIPPING.
1468
ployed by Charterers, though Shipowners to
be Responsible for Proper Stowage — Theft of
Cargo by Stevedores — Shipowners not Respon-
sible for Short Delivery or for Damages
Occasioned by the Theft. — By a charterparty
shipowners were made responsible for full and
complete delivery of the cargo and also for
its proper stowage by the stevedores, but the
stevedores were to be employed by the char-
terers. When loading the ship for a voyage
to Brazil the stevedores stole part of the
cargo, and owing to their theft the charterers
were unable to make full delivery at the
Brazilian port. As the cargo actually de-
livered did not correspond with that shewn
on the ship's manifest, the Brazilian Govern-
ment imposed fines on the local agent of the
charterers. The charterers reimbursed their
agent, and also paid damages to the owners
of the goods which were stolen ; and they now
sought to recover the amounts of the fines and
damages so paid by them from the ship-
owners : — Held, that the clause in the
charterparty which made the shipowners
responsible for full and complete delivery of
the cargo did not apply where the loss of
cargo had been occasioned by the felonious
acts of the charterers' own servants, and
that therefore the shipowners were not liable
for either the fines or the damages. Query,
whether, if the charterers had been protected
by their bill of lading from any obligation in
consequence of the theft to pay damages to
the owners of the goods, they could never-
theless under the charterparty have compelled
the shipowners to make good the loss. Royal
Mail Steam Packet Co. v. Macintyre,
16 Com. Cas. 231— D.
Goods to be Taken from Alongside by Con-
signees as Soon as Vessel Ready to Discharge
— Right of Shipowners to Land and Store
Goods — Freight Payable before Delivery —
Consignees not Ready to Take Delivery —
Storage of Goods by Shipowners in Warehouse
— Right of Consignees to Delivery on Deposit-
ing Freight with Warehousemen/ — Goods
were shipped at Antwerp for delivery at
Southampton under a bill of lading which
provided that freight was payable before de-
livery and that the goods were "to be taken
from alongside by the consignees as soon as
the vessel is ready to discharge and to receive
same as fast as the steamer can deliver . . .
and wherever the steamer is to discharge, or
otherwise they may be landed, put into
lighters, or stored by the steamer's agents
... at the expense of the consignees." At
Southampton the consignees were not ready to
take delivery w-hen the steamer discharged,
nor did they then pay the freight ; where-
upon the shipowners stored the goods in a
warehouse, having previously given to the
warehousemen a general notice that all goods
landed by the shipowners were landed for
ship's purposes, and were to be held for the
shipowners, without whose instructions,
accompanied by their release for freight, the
goods were not to be delivered. No amount
of freight was mentioned by the shipowners
in their notice to the warehousemen : — Held,
that the storage by the shipowners of the goods
in the warehouse was not a warehousing of
them under the provisions of the Merchant
Shipping Act, 1894, and therefore that the
consignees were not entitled to obtain delivery
of the goods by depositing with the warehouse-
men the amount of the freight under sec-
tion 495, sub-section 2 of the Act. Dennis
V. Cork Steainship Co.. 82 L. J. K.B. 660;
[1913] 2 K.B. 393; 108 L. T. 726; 18 Com.
Cas. 177; 12 Asp. M.C. 337 ; 29 T. L. E. 489
— Scrutton, J.
Short Delivery of Cargo — Unidentified
Residue — Rights of Consignee.] — Where in
discharging the cargo of a ship there is a
shortage of delivery, and also a residue of
unidentified goods, the shipowner cannot com-
pel the consignees to take the unidentified
goods as a pro tanto fulfilment of the contract
to deliver. Sandeman v. Tyzack and Bran-
foot Steamship Co., 83 L. J. P.C. 23; [1913]
A.C. 680; 109 L. T. 580; 12 Asp. M.C. 437;
57 S. J. 752; 29 T. L. E. 694— H.L. (Sc.)
Discharge by Shipowners — Damage to Bags
Containing Cargo — Liability for Repairs.] —
Where an obligation rests upon shipowners to
discharge the cargo, in the absence of any
stipulation to the contrary, the cost of repair-
ing bags in which the cargo is carried, in
order that it may be delivered in proper con-
dition, falls upon the shipowners and not upon
the charterers. Leach v. Royal Mail Steam
Packet Co., 104 L. T. 319; 16 Com. Cas. 143;
11 Asp. M.C. 587— Channell, J.
"Workmen essential to the discharge of
the cargo" — "Loading" and "Discharge."]
— A charterparty contained a strike clause
providing that " if the cargo cannot be dis-
charged by reason of a strike or lock-out of
any class of workmen essential to the discharge
of the cargo, the days of discharging shall
not count during the continuance of such
strike or lock-out." On the arrival of the ship
at the port of discharge a strike of carters
was in existence, in consequence of which the
docks had become congested ; and this condi-
tion of affairs rendered it impossible for the
consignee to accept delivery of the cargo, there
being neither space for the cargo in the docks,
nor means of taking it away when tendered
over the ship's rail : — Held, that the carters
in these circumstances were not a " class of
workmen essential to the discharge " within
the meaning of the clause. Held, also, that
" discharge " is a joint act, necessitating co-
operation on the part of the ship and the
receiver of the cargo, and that the obligation
of the ship under this term is fulfilled when
its crew or its stevedore's men are in a posi-
tion to offer, and do offer, delivery to the
consignee over the ship's side. Langham
Steamship Co. v. Gallagher. [1911] 2 Ir. R.
348; 12 Asp. M.C. 109— K.B. D.
Liability for Damage to Ship through Negli-
gent Discharge.] — A charterparty provided as
follows : " Cargo to be loaded, stowed and
discharged free of expense to steamer, with
use of steamer's winch and winchmen if
required " : — Held, that this clause had not
the effect of transferring the duty of discharg-
ing the cargo from the shipowner, on whom
1469
SHIPPING.
1470
it rests at conimou law, to the charterer, so
as to render the latter responsible for damage
received by the ship in the course of discharge.
Ballantyiie d Co. v. Paton d- Hendry. [191'2]
S. C. 246— Ct. of Sess.
Through Bill of Lading — Liability of Each
Carrier for his Own Stage of Transit — Ship-
owner's Duty — Burden of Proof.] — Under a
through bill of lading for the carriage of flour
from Minneapolis, U.S.A., to Glasgow, signed
by an agent " on behalf of carriers severally,
but not jointly," each of whom was to be
responsible only for his own stage of the
transit and to mark the condition of the goods
as received by him, and certify such condi-
tion and any deficiency or injury done to the
goods to his successor, a small proportion of
the flour was at New York, when it was loaded
in the rain and much wetted, found to be
"caked," and a large quantity found to be
similarly injured on arrival at Glasgow : —
Held, that the shipowner was liable for the
damage done to the flour between New York
and Glasgow. The burden of proof lies upon
the shipowner, who, if he accepts goods as in
apparent good order and condition, takes the
responsibility of delivering them in the same
condition, unless he shews that the damage
(if any) was done before he received the goods
or was caused by perils excepted in his part
of the contract. Crawford v. Allan Line
Steamship Co., 81 L. J. P.C. 113; [1912]
A.C. 130; 105 L. T. 964; 17 Com. Cas. 135;
12 Asp. M.C. 100; 28 T. L. E. 168— H.L. (Sc.)
Decision of the Court of Session ([1911]
S. C. 791) reversed, and that of the Lord
Ordinary restored. lb.
Custom of Port — Custom Limited to Par-
ticular Cargoes from Particular Ports.] —A
steamer loaded a cargo of barley in sacks at
a North Pacific port, under a charterparty
which provided for discharge at a safe port or
ports in the United Kingdom " according to
the custom at port of discharge for steamers."
The steamer was ordered to discharge at the
port of Leith, where the consigners demanded
delivery of the barley in the original sacks.
The shipowners, however, claimed the right to
discharge the cargo according to a custom
which they alleged prevailed at that port with
regard to cargoes of grain shipped on steamers
from North Pacific ports, whereby the grain
was bulked in the hold, from which it was
hoisted in tubs to the deck and poured into
sacks of a uniform size : — Held, on the evi-
dence, that the alleged custom had been proved
and was binding on the consignees. Strath-
lorne Steam.'ihip Co. v. Baird <f Sons. Lim.,
[1915] S. C. 957- Ct. of Sess.
Port of Hull — Wheat in Bags — Loose
Grain in Hold — Discharge — Distribution
among Several Consignees.] — A cargo o
wheat in bags was shipped on the plaintiffs
steamer from Australian ports to Hull by
several consignors, in parcels, for several con
signees, including both the defendant com
panies, and on the arrival of the steamer at
Hull some of the wheat had escaped from the
bags and could not be identified as having
come from any particular parcel. The plain-
tiffs, in the course of discharge, caused any
slack bags to be filled with the loose grain and
delivered to each of the consignees his proper
number of bags provisionally and subject to
account, and at the close of the discharge
ascertained the proportion which the total
weight of the bags discharged bore to the total
bill of lading weights, and in the case of any
consignee who had received less than his proper
proportion, made up the deficiency as far as
possible out of the loose grain. In case of
dispute the shipowner made out a pro rata
statement, shewing all the proportions to be
delivered. Although each of the defendant
companies had received its proper number of
bags the first defendant company alleged the
delivery to them to be five tons short, and
the delivery to the second defendant company
to be the same amount in excess, of their
proper respective quantities. In an action by
the plaintiffs against the first defendant com-
pany for freight and in the alternative against
the second defendant company for the return
of wheat delivered to the second instead of to
the first defendant company, the first defen-
dant company counter-claimed against their
co-defendants for wheat delivered to, and
wrongly retained by, the latter. The Judge
found, upon the evidence, that the plaintiffs,
in making delivery as above described, had
acted in acc-ordance with a custom of the Port
of Hull, and that by this custom any consignee
who had provisionally received more than his
proper share had received the excess to the use
of those consignees who were still in deficiency
and was under an obligation to deliver it to
such consignees on demand. He also found
that the pro rata statement was binding on all
consignees. He accordingly gave judgment for
the plaintiffs against the first defendant com-
pany and for the first defendant company on
their counterclaim against their co-defendants :
— Held, on appeal, that the Judge's decision
must be afiirmed, per Avory, J., on the grounds
that there was evidence to support the Judge's
finding as to the custom and that it was
neither unreasonable nor uncertain and was
therefore valid in law, and that any consignee
having knowledge of the custom was under an
implied contract to redeliver to any other such
an amount as the proportional distribution
required; and per Lush, J., on the ground
that, whether there was sufficient evidence of
a clear and uniform custom or not, the second
defendant company had full cognizance of the
method of dealing with wheat at the Port of
Hull, and as they allowed loose grain which
was the joint property of all the consignees to
be placed in their bags, the law would raise
an implied promise on their part that they
would redeliver to consignees whose weight
was short such a quantity as was shewn by
the pro rata statement to be the proper
quantity to be delivered. Peninsular and
Oriental Steam Naiiigation Co. v. Leetham .f
Sons. Urn., 32 T. U. R. 153~D.
Landing Charges — London Clause — Ship
Discharging at Riverside Wharf.] — On the
construction of a bill of lading. — Held, that
the Ijondon clause and the landing charges
exigible thereunder by the ship only applied
when she discharged her cargo in a dock, and
1471
SHIPPING.
1472
did not apply when she discharged at a river-
side wharf. Produce Brokers Co. v. Fumess,
Withtj .(■ Co., 106 L. T. 633; 12 Asp. M.C.
188; 17 Com. Cas. 165; 28 T. L. E. 329—
Scruttnn. J.
XI. AVERAGE.
See also Vol. XIII. 580. 2112.
Unseaworthiness — Burden of Proof.] —
Though it is a principle of law that the onus
of proving unseaworthiness lies upon those
who allege it, effect must be given to such
presumptions of fact, arising from the age of
the vessel, the low classing or non-classing,
the non-survey of the ship, the refusal to
insure, admitted defects, and bad record of the
vessel, as tend to shift the burden of proof.
Lindsay v. Klein, 80 L. J. P.C. 161; [1911]
A.C. 194: 104 L. T. 261; 11 Asp. M.C. 563
— H.L. (Sc.)
Shipowners sued cargo owners for a con-
tribution in general average : — Held, that the
cargo owners were not liable, for in the cir-
cumstances the onus was on the shipowners
of shewing that the ship was seaworthy at
the commencement of the voyage, and they
had failed to discharge that onus. lb.
Sacrifice and Expenditure — Ship Entering
Dock in Interests of Ship and Cargo — Ship
Intentionally Striking Pier — Damage to Pro-
perty of Third Person — Contribution from
Cargo Owner. ^ — The plaintiffs' vessel, having
been seriously damaged by stranding, was
being towed to a place where she could be put
on the ground for the greater safety of the
ship and cargo. Before reaching that place,
however, she was found to be leaking badly,
and the master and pilot decided to take her
into a dock close by, to enter which she had
to pass between two piers. Both the master
and pilot contemplated that she would
necessarily strike one of the piers and do
damage. She in fact struck the pier harder
than was anticipated, and damaged both her-
self and the pier to a considerable extent. To
enter the dock under those circumstances was
held to be a reasonable and prudent thing
to do in the interests of ship and cargo. The
shipowners brought an action against the
owners of the cargo to recover contribution in
general average in respect of the damage to
the ship, and also in respect of the damage done
to the pier : — Held, that the taking of the ship
into the dock was a general average act, that
the damage done to the ship in so entering
was a general average sacrifice, and that the
expense incurred in making good the damage
done to the pier, notwithstanding that the
expenditure was incurred in making good the
damage done to the property of a third person,
was a general average expenditure, inasmuch
as it was an expense which was foreseen as
the natural consequence of the general average
act, and that therefore the shipowners could
recover contribution in respect of such general
average loss from the cargo owner. Austin
Friars Steamship Co. v. Spillers d Bakers,
Lim., 84 L. J. K.B. 544; [1915] 1 K.B. 833;
20 Com. Cas. 100; 59 S. J. 205; 31 T. L. R.
147— Bailhache, J. Affirmed, 84 L. .T. K.B.
1958; [1915] 3 K.B. 586; 20 Com. Cas. 342-
31 T. L. K. 535— C.A.
Held, further, that the common law rule
that there is no contribution between joint
tortfeasors does not apply in general average,
the implied obligation on the part of the cargo
owner and shipowner to bear between them in
their respective proportions the consequence of
every necessary and prudent act for the pre-
servation of ship and cargo, even though that
involves the committing of a trespass, being
derived from the old Rhodian laws. 76.
XII. SALVAGE.
1. Generally.
See also Vol. XIII. 593. 2118.
No Real and Sensible Danger — Onus of
Proof.] — Before there can be a claim for sal-
vage services, there must be an element of real
and sensible danger or a reasonable appre-
hension of it on the part of the vessel against
which the salvage is claimed ; if there is an
entire absence of this element, the claim of
the salvor nmst fail. The onus of proving
salvage services rests upon those who allege
them. The Calyx, 27 T. L. R. 166— Evans, P.
Damage to Vessel Rendering Salvage Ser-
vices.]— In salvage operations, the vessel
asking for assistance has a duty cast upon her
to accommodate, as far as possible, her own
movements to those of the salving vessel, and
to render assistance in the common enter-
prise. " Hatfield " (Owners) v. " Glasgow ''
(Owners). The Glasgow, 84 L. J. P. 161;
112 L. T. 703— H.L. (E.)
2. Salvage or Towage.
See also Vol. XIII. 611, 2121.
Tug and Tow — Claim that Towage Altered
to Salvage.] — In an action of salvage by a
tug, engaged in performing a towage service,
where the owners, master, and crew of the
tug have not discharged the burden of proving
that the alteration of the tug"s services from
towage to salvage was not due either to the
inefficiency of the tug or to the negligence of
her master and crew, neither the owners nor
the master nor the crew can recover a salvage
award, although negligence has not been
pleaded by the defendants. The Marechal
Suchet, 80 L. J. P. 51 ; [1911] P. 1 ; 103 L. T.
848; 11 Asp. M.C. 553; 26 T. L. R. 660—
Evans, P.
The tug G. was engaged to tow a sailing
ship, which during the towage stranded and
was got off by services in which the G., and
other tugs belonging to the same owners as
the G., were employed, as well as tugs of other
owners and two lifeboats, all of whom claimed
salvage. Under the towage contract the
owners of the G. had stipulated in effect that
they should not be responsible for any
damage occurring to vessels while in tow of the
tug, and that they should not be answerable
for any damage by collision or otherwise to
any vessel while in tow, whether from any
accident or by any negligence of their servants
1473
SHIPPING.
1474
or defect or imperfection in the tug or the
machinery, and that the owners of the vessel
should undertake all liability for the same.
The owners of the ship in their defence to
consolidated actions of salvage by the owners,
masters, and crews of the tugs and other
vessels, while admitting services rendered by
the G. and other tugs of the same owners,
denied any liability for salvage to these owners
in respect thereof on the ground that the
stranding was caused by inefficiency of the
(/., but they did not allege any negligence
of her master or crew ; they also counter-
claimed against the owners of the G. for any
salvage due from themselves in respect of
services by other vessels. The Court found
in effect that the stranding was owing either
to inefficiency of the G., or to negligence of her
master and crew, or to both combined. At
the trial it was admitted by the owners of
the G. that if they were not entitled to salvage
in respect of the G., then they would not be
entitled to it in respect of their other tugs ;
but it was contended that in any case the
masters and crews of all their tugs were
entitled to salvage, and especially of the tugs
other than the G., as their services had been
expressly engaged by the defendants : — Held,
that, owing to the facts of the stranding,
there was a burden on the owners of the G.,
when claiming as salvors, to prove both that
they had performed the obligations of their
contract, and that the towage was altered into
salvage by circumstances which could not
reasonably be expected or by inevitable acci-
dent ; that they had not discharged this
burden, and therefore could not recover
salvage. Held, that the master and crew of
the tug G. could not recover salvage as it was
left uncertain whether the stranding was
caused by their negligence. Field, that, as
regards the other tugs belonging to the same
owners as the G., their masters and crews
were entitled to salvage for engaged services.
Held, that the defendants could not recover
on their counterclaim, as their plea that the
stranding was owing to inefficiency of the tug
was not established, but left in doubt; and
that the terms of the contract afforded a
defence to the counterclaim. lb.
The ship stranded (as stated above) on the
West Shingles Sand at the mouth of the
Thames, and her crew having been taken off
in heavy weather, thirteen hands on a volun-
teer lifeboat from Walton boarded her, and
did a little discharging and took out a small
anchor and kept off some small boats sent, as
they alleged, to pillage the ship, and they
remained on board when the crew returned
about a day afterwards, though told they were
not wanted, and did a little work : — Held,
that the lifeboat's services did not amount to
salvage. Ih.
Towage Contract — " No claim to be made for
salvage" — Salvage Services Rendered after
Termination of Towage Contract.] - By an
agreement made between the plaintiffs, the
owners of a tug, and the defendants, the
owners of the Glenmorven, which had lost her
nidder and had been taken into Vigo, the
plaintiffs agreed to tow the Glenmorven from
Vigo to the Tyne for 400Z. The agreement
contained these clauses : "No cure, no pay;
no claim to be made for salvage." The
plaintiffs' tug proceeded to tow the Glen-
morven, but bad weather and other difficul-
ties being experienced the master and the
crew of the Glenmorven declined to proceed
further, with the result, as the Judge found,
that the contract of towage came to an end.
Thereafter the tug rendered services in the
nature of salvage to the Glenmorven : — Held,
that the plaintiffs were entitled to recover in
respect of the salvage services. The Glen,
morven, 82 L. J. P. 113; [1913] P. 141;
29 T. L. R. 412— Evans, P.
Salvage of Tow by Tug — Contract between
Shipowners and Tug Owners — Term of No
Salvage Charges — Whether Cargo Owners
Liable for Salvage Services.] — When a vessel
containing cargo is being towed under a tow-
age contract made between the owners of the
tug and the owners of the vessel in tow, on
the terms of "no cure, no pay; no salvage
charges," and when, before the towage has
come to an end, the vessel in tow is in danger
and salvage services are rendered by the tug
to the vessel and cargo, the tug-owners are
entitled to recover against the owners of the
cargo for salvage services. Tlie Leon Blum,
[1915] P. 90; 31 T. L. E. 2— Evans, P.
Affirmed, 85 L. J. P. 1; [1915] P. 290;
59 S. J. fi92; 31 T. L. R. 582--C.A.
3. Salvage or Pilotage.
See also Vol. XIII. 614, 2121.
Compulsory Pilot.] — It is desirable to
keep pilots to their duties as pilots as far as
one reasonably can, and not to countenance
the idea that it is easy for a pilot to convert
himself by reason of some additional risk into
a salvor, and not to encourage pilots to become
searchers after salvage. The defendants'
steamship, which had lost her propeller near
the Royal Sovereign lightship and had drifted
ashore in Rye Bay and had some bumping,
afterwards slipped off and lay to her anchors
while a lifeboat stood by her. W^hen the
weather had moderated, she was taken in tow
by two tugs. Off Dungeness the plaintiff, a
compulsory pilot, boarded her and took charge
of her to Gravesend. The plaintiff was told
that the vessel had bumped badly and he
feared leakage, but there was no leakage; and
there was nothing in the weather, after he
came on board, to increase the risk. During
the towing from Dungeness there was some
sheering, and the tow rope of one of the tugs
parted, and a third tug was also engaged, and
at Gravesend one of the tow ropes fouled the
steamship's anclior, but she was moored safely
to the buoys. The plaintiff claimed salvage.
The defendants admitted that the lifeboat and
the three tugs had rendered salvage services,
but said that the plaintiff's services were
pilotage services and denied his right to sal-
vage : — Held, that nothing was required to be
done or was in fact done by the plaintiff more
than ought to be done by a pilot doing his
ordinary pilotage work for pilotage reward,
and that his claim to salvage must be dis-
allowed, but without costs. The Bedeburn,
47
1475
SHIPPING.
1476
83 L. J. P. 109; [1914] P. 146; 111 L. T. 464;
12 Asp. M.C. 530; 30 T. L. E. 513— Evans, P.
4. Who are Entitled to S.\lv.^ge.
See also Vol. XIII. 621, 2121.
King's Ship — Right of Commander, Officers,
and Crew to Reward,] — Salvage remuneration
awarded to the commander, officers, and crew
of a King's ship in respect of services rendered
by them to the defendants' steamship. The
Domira, 30 T. L. E. 521— C.A.
Decision of Evans, P. (29 T. L. E. 557),
affirmed. lb.
Ship Requisitioned by Admiralty — Claim
for Salvage Services — Whether Consent of
Admiralty Necessary.] — By section 557 of the
Merchant Shipping Act, 1894, " no claim for
salvage services by the commander or crew or
part of the crew of any of her Majesty's ships
shall be finally adjudicated upon, unless the
consent of the Admiralty to the prosecution of
that claim is proved " -.—Held, that where a
ship which has been requisitioned by the
Admiralty renders salvage services, no claim
for such services can be allowed in the absence
of the consent of the Admiralty to the prose-
cution of the claim, inasmuch as such a ship,
being in the sole employment of the Crown,
is in the same position as a King's ship,
although she is not the propertv of, or demised
to, the Crown. The Sarpen, 31 T. L. E. 576
— Bargrave Deane, J.
See also Salv.age or Towage and Salvage
OR Pilotage (supra).
5. Award.
See also Vol. XIII. 631, 2124.
Loss of Fishing Profits — Damages Incurred.]
— In awarding salvage remuneration to fishing
vessels for services rendered to another vessel,
loss of the estimated fishing profits caused by
the services cannot be allowed as such, though
the Court will take into account the fact of the
loss in making its award. Actual damages
incurred were awarded by the Court as items
of salvage remuneration. The Fairport, 81 L. J.
P. 108; [1912] P. 168; 106 L. T. 382;
12 Asp. M.C. 165 — Bargrave Deane, J.
Freight under Charter — Inclusion in Value
of Property Salved.] — A vessel belonging to
the plaintiffs rendered salvage services to a
vessel belonging to the defendants when the
latter was bound to the Tyne to carry out a
charter. By reason of the services the defen-
dants vessel was able to earn her freight
under the charter : — Held, in a salvage action,
that the freight ought to be taken into account
in arriving at the value of the property salved.
The Kaffir Prince. 31 T. L. E. 296— Evans, P.
Appeal as to Amount — Grounds for Varying
Amount."! — The steamship P. having broken
down in the Eed Sea in consequence of the
disablement of her propeller, an agreement
was entered into between her master and the
master of the steamship .1. for towage of the
former steamship by the latter to Suez, the
remuneration to be subsequently arranged.
The A. accordingly towed the P. to Suez, a
distance of 825 miles, at an average speed of
6^ knots per hour, the towing having been
interrupted for about six hours by the parting
of the hawsers. The value of the P. was
40,000Z. and of her cargo and freight 229,705i.,
and the value of the .4. was 36,250Z. and of
her cargo and freight 51,750i. It was found
that in the part of the Eed Sea where the
salvage services w-ere rendered there was a
current setting towards rocky shoals to the
eastward, and that for that and other reasons
the P. was in a position of some danger.
The Judge having awarded the owners of the
A. 10,0001.,— Held, that the amount of the
award was excessive, and that it should be
reduced to 6,000L The Port Hunter, 80 L. J.
P. 1; [1910] P. 343; 103 L. T. 550;
11 Asp. M.C. 492; 26 T. L. E. 610— C.A.
The principles to be applied in assessing the
amount of a salvage award considered. 7b.
6. Practice.
See also Vol. XIII. 666, 2130.
Several Sets of Salvors — Consolidated
Action — Tender — Apportionment.] — In a con-
solidated salvage action where there is more
than one set of plaintiffs claiming remunera-
tion, the defendants, when making a tender
in satisfaction of the claim, ought, if their
servants were present and are able to give full
information to them as to the merits of the
salvage services, to apportion the amount
tendered between the various sets of salvors.
The Burnock, 110 L. T. 778; 12 Asp. M.C.
490; 30 T. L. E. 274— Bargrave Deane, J.
Salvage Action— Affidavit of Value.]— The
affidavit of value in a salvage action ought not
to be made on information and belief, but
ought to be made by a person having actual
knowledge of the value. The Orangemoor,
31 T. L. E. 190— Bargrave Deane, J.
Xin. TOWAGE.
See also Vol. XIII. 679, 2132.
Tug and Tow — Collision with Tow — Negli-
gence of Tug — Contract making Crew of Tug
Servants of Owners of Tow.] — A collision took
place between the plaintiffs' vessel and a barge
in tow owing to the negligent navigation of
the tug. By the contract between the tug
owners and the barge owners the master and
crew of the tug became the servants of the
barge owners during the towage. The tug
master was employed and paid by the tug
owners and was subject to dismissal by them
alone. The sole control of the navigation of
the tug and tow was with the tug : — Held, in
an action by the plaintiffs against the tug
owners and the barge owners, that, notwith-
standing the terms of the contract, the master
and crew of the tug were in fact the servants
of the tug owners, and that therefore in law
the tug owners, and not the barge owners,
were responsible for the negligence of the
master and crew of the tug. The Adriatic and
The Wellington, 30 T. E. E. 699— Evans, P.
1477
SHIPPING.
1478
Condition Exempting Tug Owner from
Liability for "Defect" in "Towing gear" —
Defect Existing at Date of Contract — Defect
in Attachments of Towing Hooks — Damage
to Vessel Towed — Obligation of Tug Owners
under Towage Contract — Effect of Exemp-
tion.]— By a verbal agreement of towage the
defendants, who were tug owners, agreed to
tow the plaintiff's steamer from Birkenhead to
a dock at Liverpool, subject to the conditions
that the tug owners were not to be responsible
for any damage to the ship arising from (inter
alia) " towing gear (including consequence of
defect therein or damage thereto) and whether
occasioned by the negligence, default, or error
in judgment of the pilot, master, officers,
engineers, crew or other servants of the tug
owners." During the course of the towage,
near the entrance to the dock, the towing gear
of the tug carried away, the consequence being
that the steamer struck a jetty at the entrance
to the dock and was damaged. An action
having been brought by the plaintiffs against
the defendants for damages for alleged breach
of the contract, there were findings of fact that
the accident was due to the weakness of the
rivets by which the angle bar to which the
towing hooks of the tug were attached was
fastened to the bulkhead ; that at the time of
the contract the tug was inefficient on this
ground ; that the inefficiency could have been
ascertained by reasonable care and skill by the
defendants; nnd that they had made no proper
inspection of the tug before the contract was
entered into : — Held, by the Court of Appeal
(affirming the judgment of The President),
that, apart from the conditions, the obligation
of the defendants under the contract was to
supply a tug as fit for the purposes for which
it was hired as skill and care could make it ;
that the conditions did not in this instance
exempt the defendants from that obligation,
inasmuch as they were limited to defects in
the towing gear arising during the period of
the towage, and did not extend to defects
existing at the commencement of the towage ;
and further (Vaughan Williams, L.J., dissent-
ing on this point), that the expression " towing
gear" in the conditions did not include the
rivets in which the defect had existed ; and
consequently that, having regard to the find-
ings of fact, the defendants were liable. The
West Cock, 80 L. J. P. 97: [19111 P- 208;
104 L. T. 730 : 12 Asp. M.C. 75 ; 55 S. J. 329 ;
27 T. L. R. 301— C. A.
Qucere. whether the obligation of the tug
owner under the contract of towage amounts
to an absolute warranty of the fitness and
efficiency of the tug for the intended purpose.
Ih.
Damage to Cargo — Tug and Tow— Implied
Term — Indemnity.] — The pluintiffs, the
owners of cargo on a barge, recovered judg-
ment against the defendants, the owners of
the tug towing the barge, for loss of their
cargo owing to a collision in which the barge
was sunk. The defendants had brought in the
barge owners as third parties, alleging that it
was an implied term of the contract of towage
that the barge owners should indemnify them
against such a liability. By the terms of the
contract the defendants (the Manchester Ship
Canal Co.) were " not to be responsible or
liable for damage or injury to any ship vessel
or craft, or the persons or goods on board any
ship vessel or craft, of which the company may
undertake the towage or docking ... or
which may be piloted by any of their servants,
... or for any loss sustained or liability in-
curred by any one by reason of such damage
or injury, or for any loss or liability incurred
in consequence of any such ship vessel or craft
colliding with or otherwise damaging any
other vessel or thing, or for any loss or liability
of any kind whatsoever arising from the tow-
ing docking or piloting, whatever may be the
cause or causes of such damage injury loss or
liability or under whatever circumstances such
damage injury loss or liability may have
happened or accrued, even though arismg from
or occasioned by the act omission incapacitv
negligence or default whether wilful or not of
the company's servants or agents or any other
persons, or any defects, imperfection or in-
sufficiency of power in or any delay stoppage
or slackness of speed of any tug or vessel her
machinery or equipment engaged in towing or
docking any ship vessel or craft, whether such
defect imperfection or insufficiency of power be
in existence at the beginning of or during the
said towing or docking " : — Held, that no such
term was to be implied in the contract, and
that the defendants were not entitled to an
indemnity from the third parties. The Devon-
shire and The St. Winifred, 82 L. J. P. 61;
[1913] P. 13; 108 L. t. 427; 12 Asp. M.C.
314; 29 T. L. R. 86— Evans, P.
Negligence of Tug — Towage Contract —
Indemnity.] — When the plaintiffs' tug was
towing the defendants' barge a collision took
place between the barge and a steamship, and
in an action by the owners of the steamship
against the present plaintiffs and defendants
the tug was found alone to blame and damages
were awarded against the tug owners. The
towage contract provided that " the tug owners
will not be responsible for the acts or defaults
of the master or crew of the tug, or of any
of their servants or agents . . . nor for any
damages, injuries, losses, or delay from what-
soever cause arising that may occur either to
the vessel or vessels towed ... or to any
other ship or vessel . . . and the tug owners
shall be held harmless and indemnified by the
hirer against all damages, injuries, losses, and
delay, and against all claims in respect thereof,
even though the same be caused or have arisen
directly or indirectly from any unseaworthiness,
defects ... or otherwise howsoever " : — Held,
that the above indemnity covered negligence
and the plaintiffs were entitled to be indemni-
fied by the defendants in respect of the
damages and costs awarded against them in
the collision action and of their own costs in
that .action. The Wellington, 85 L. J. P. 12;
32 T. L. R. 49-Evans. P.
"No claim for salvage" — Abandonment of
Ship by Crew — Termination of Contract —
Quantum Meruit — Salvage Reward.] — The
plaintiffs, tug owners, contracted that their
tug with another tug should tow the defen-
dants' steamship, which had lost her rudder
but could use her engines, and had her master
1479
SHIPPING.
1480
and crew on board, from a Spanish port to
the Tyne, for the sum of 400Z. ; " no cure, no
pay; no claim to be made for salvage." The
vessels met with bad weather and the plain-
tiffs' tug did but little towing, and when eight
days out in the Bay of Biscay the master and
crew of the steamship abandoned her and left
in the other tug for a neighbouring port. The
plaintiffs' tug then towed the abandoned
steamship to Falmouth, and thence with the
assistance of the other tug to the Tyne : —
Held, that, owing to the abandonment, the
contract came to an end by the fault of the
defendants ; and that the plaintiffs were
entitled to a quantum meruit for their services
till the abandonment, and to salvage reward
for their subsequent services. The Glen-
morven, 82 L. J. P. 113; [1913] P. 141;
29 T. L. E. 412— Evans, P.
XIV. COLLISION.
1. Negligence.
See also Vol. XIII. 685, 2138.
Collision Caused by Fault of Two Indepen-
dent Third Parties.] — Two steamships came
into collision at a narrow part of the river
Clyde through no fault on the part of either of
them. The collision was caused by one of
the ships sheering across the river in her
endeavours to avoid running down a tug with
a string of barges in tow, which had emerged
without warning from a dock in a shipbuilding
yard and had steamed across the channel. In
the dock in question a large cruiser was being
fitted out at the time, and she had been moored
by the shipbuilders in such a way that her
stern projected for a considerable distance into
the navigable channel of the river, in contra-
vention of the by-laws of the Clyde Navigation
Trustees. The owners of the two steamships
brought actions against — first, the owners of
the tug, and, secondly, the shipbuilders, claim-
ing damages against the defenders, jointly
and severally, for the injuries suffered in the
collision : — Held, that, although the primary
cause of the collision was the negligent naviga-
tion of the tug, yet, had the cruiser not been
moored in this unauthorised position, the
collision might have been avoided, and that
consequently the shipbuilders were liable
jointly and severally with the owners of the
tug. Ellerman Lines v. Clyde Navigation
Trustees, [1911] S. C. 122— Ct. of Sess.
Good Seamanship — Dangerous Bend in
River — Vessel Proceeding against Tide — Duty
to Wait.] — A collision occurred at a dangerous
bend in a river, where a heavily laden steam-
ship coming up on the flood tide had to make
a sharp turn in the channel while she was
caught by an eddy or cross stream, making it
difficult to turn. The up-coming steamship
when caught by the eddy failed to answer her
helm, her tow rope to her tug broke, and she
struck a steamship, coming down at speed,
which met her in the bend : — Held, that the
vessel coming down at speed against the tide
was under a duty of good seamanship, whether
it was the practice or not, to reduce her speed
and wait so as not to meet the other vessel
in the bend, and, having failed to do so, was
alone to blame for the collision. The Ezardian,
80 L. J. P. 81; [1911] P. 92; 104 L. T. 400;
11 Asp. M.C. G02 — Bargrave Deaue, J.
Launch — Negligence of Vessel near the
Launch — Election between Two Risks.] ^ A
large vessel was about to be launched on the
Mersey. The appellants' ketch lay near the
launching place in a position of danger, from
which, although repeatedly requested by the
managers of the launch to do so, she refused
to move, or to slip her anchor. To postpone
the launch would have been attended with
danger to life and property, as well as to the
launch. The launch was effected; a collision
followed, and both vessels were injured :• —
Held, on the facts, affirming the decision of
the Court of Appeal (80 L. J. P. 121 ; [1911]
P. 261), that the owners of the ketch were
alone to blame, as the managers of the launch
had elected to run the smaller of two risks.
The Highland Loch, 81 L. J. P. 30; [1912]
A.C. 312; 106 L. T. 81; 12 Asp. M.C. 106;
28 T. L. R. 213— H.L. (E.)
2. Presumption of Fault.
See also Vol. XIII. 707, 2140.
Moving and Stationary Vessels — Onus of
Proving Fault — Compulsory Pilot.] — A ship
proceeding up the Clyde on a dark foggy night
in charge of a compulsory pilot collided with
a vessel lying moored at a wharf. The owners
of the latter vessel brought an action of
damages against the owners of the colliding
vessel in which, besides making specific aver-
ments of fault against the defenders, they
maintained that the fact that their vessel had
been run into while stationary raised a pre-
sumption of fault against the colliding vessel,
and that the defenders could not obtain the
protection of section 633 of the Merchant
Shipping Act, 1894, except by proof of some
specific fault on the part of the compulsory
pilot : — Held, that the pursuers had failed to
prove that the collision had been caused by
the fault of the defenders or those for whom
they were responsible. Stephen v. Allan Line
Steamship Co., [1911] S. C. 836— Ct. of Sess.
Observations — first, on the presumption of
fault on the part of a moving vessel that has
collided with a stationary vessel ; and
secondly, on the necessity of averring and
proving specific fault on the part of a pilot
before obtaining the protection of section 633
of the Merchant Shipping Act, 1894. 7b.
Retrospective Application of Maritime Con-
ventions Act, 1911.] — The Maritime Conven-
tions Act, 1911, applies to any action of damage
by collision, if proceedings were not taken
until after the passing of the statute, although
the collision occurred before the statute passed ;
and in such a case the statutory presumption
of fault under the Merchant Shipping Act,
1894, s. 419, sub-s. 4, has no application.
The Enterprise, 82 L. J. P. 1 ; [1912] P. 207;
107 L. T. 271 ; 12 Asp. M.C. 240; 28 T. L. R.
598 — Bargrave Deane, J.
1481
SHIPPING.
1482
3. Liability.
See also Vol. XIII. 717, 2142.
Action in Rem — Extent of Liability —
Appearance — Personal Action — Decree.] — In
an Admiralty action in rem for damage, if the
defendants, although foreigners, appear, the
action becomes a personal action, and the
defendants become liable to the full extent of
the damage proved, subject to the statutory
limitation of shipowners' liability; and accord-
ingly, if judgment goes against them, they are
not entitled to a special decree confining their
liability to the value of their ship and freight
and the costs of the action. The Dupleix,
81 L. J. P. 9; [1912] P. 8; 106 L. T. 347;
12 Asp. M.C. 122; 27 T. L. R. 577— Evans, P.
Doctrine in The Dictator (61 L. J. P. 73;
[1892] P. 304) as to the effect of appearance to
an action in rem, which was approved by the
Court of Appeal in The Gemma (68 L. J. P.
110; [1899] P. 285), followed. 7b.
4. Damages.
See also Vol. XIII. 726, 2142.
Collision in River — Launch and Dredger —
Contributory Negligence of Plaintiff — Conse-
quential Damages — Common Law or Admir-
alty Action.] — An action of damage for
collision in a river brought by the owner of a
launch against the owners of a dredger with
wings employed in dredging the river, is a
common law and not an Admiralty action, so
that the plaintiff, if his negligence has contri-
buted to the collision, cannot recover damages
in respect either of the collision or of subse-
quent damage arising to the launch without
negligence in consequence of the collision.
The Blow Boat, 82 L. J. P. 24; [1912] P. 217
— Bargrave Deane, J.
Negligence — Wrongful Act Causing Death
—Damage to Plaintiff Flowing from Death —
Loss of King's Ship and Crew — Pensions Pay-
able by Admiralty to Relatives of Drowned
Seamen — Claim by Admiralty to Capitalised
Amount of Pensions.] — In an action of damage
by collision brought by the Lords of the
Admiralty against the owners of a steamship
which had through the negligence of those on
board run into a submarine and sunk her with
sixteen hands, one of the items of the plain-
tiffs' claim was for the capitalised amount of
certain pensions and allowances payable by
the Admiralty to relatives of the crew who
were drowned : — Held, that the claim failed
on the ground that at common law no civil
action could be brouglit in respect of the death
of a human being. The Amerika, 83 L. J.
P. 157; [1914] P. 167; 111 L. T. 623;
12 Asp. M.C. 536; 58 S. J. 654; 30 T. L. R.
569— C. A.
Semble, pensions paid as a matter of grace,
and not under a legal obligation, are not
recoverable as damages. Ih.
Workmen's Compensation — Indemnity —
Foreign Defendants — Service of Notice —
" Damage done by any ship " — " British
ship" — "May ... be served,"] — One of the
crew employed on the plaintiffs' lightship ob-
tained an award under the Workmen's Com-
pensation Act, 1906, for injury by nervous
shock due to fright at seeing the defendants'
ship coming into his vessel, the subsequent
collision being due to the negligence of defen-
dants' servants. The plaintiffs claimed from
the defendants in the collision action an
indemnity against the award for the injury as
damage done by their ship ; but the plaintiffs
had not served notice of claim for indemnity
under section 6, sub-section 2 of the Work-
men's Compensation Act, 1906, and the Work-
men's Compensation Rules, 19-24, on the
ground that there was no provision for such
service, as the defendants were foreigners resi-
dent abroad : — Held, that the plaintiffs could
not recover any indemnity, because, even
assuming that the member of the crew was
entitled to an award, the fright was not
" damage done by any ship " within section 7
of the Admiralty Court Act, 1861, and the
claim was too remote ; and that the defen-
dants, not having been served with notice of
claim for indemnity under section 6, sub-
section 2 of the Workmen's Compensation Act,
1906, were not bound by, or liable in respect
of, the award. Semble, in determining
whether a ship is a " British ship ... of
which the owner . . . resides ... in the
United Kingdom," within the meaning of sec-
tion 7, sub-section '1 of the Workmen's Com-
pensation Act, 1906, it is not material to
consider whether the ship is to be recognised
as a "British ship" under section 2, sub-
section 2 of the Merchant Shipping Act, 1894.
Semble, in section 7, sub-section 1 (a) of the
Workmen's Compensation Act, 1906, " The
notice of accident . . . may ... be served
on the master of the ship," the words " may
be served " are not to be read as " shall be
served." The Rigel, 81 L. J. P. 86; [1912]
P. 99; [1912] W.C. Rep. 351; 106 L. T. 648;
12 Asp. M.C. 192 ; 28 T. L. R. 251— Bargrave
Deane, J.
Two Vessels to Blame — Right of Contribu-
tion between Them — "Damage or loss" —
Damages Paid to Owners of Third Vessel.] —
The effect of the provisions of section 1 of the
Maritime Conventions Act, 1911, is that where
two vessels are to blame for a collision, in
which damage has been caused to an innocent
third vessel, the owners of one of the vessels
in fault can recover from the owners of the
other of those vessels, as part of the " damage
or loss " caused to them, the proportionate
part of any sum recovered against them by
way of damages by the owners of the third
vessel. The Cairnbahn (No. 1), 83 L. J.
P. 11; [1914] P. 25; 110 L. T. 230: 12 Asp.
M.C. 455; 30 T. L. R. 82— C. A.
Two Wrongdoing Vessels — Right, as be-
tween Two Defendant Ships, of One of Them
to Add Costs PaidtoPlaintiff.]— An Admiralty
action was brouglit by tlic owners of two
barges against tlie owners of the steamship
Cairnbahn. and subsequently the owners of
tlie steam tug Nunthorpe, which was towing
the barges, were added as defendants. The
owners of the Cairnbahn likewise brought an
action against the owners of the Nunthorpe.
1483
SHIPPING.
1484
Both actions were tried together. Judgment
was given for the plaintiffs in the first action
for the full amount of damages against the
Cairnbahn alone owing to there being a con-
tract of towage between the tug and the
barges. In the second action the Judge held
that both the Cairnbahn and the NuntJwrpe
were to blame, and ordered the two vessels in
default to suffer the damages in moieties. He
found that it was unreasonable for the owners
of the Cairnbahn to defend the first action,
and held that therefore they were not entitled
for the purpose of the division into moieties to
add to the damages the costs payable by them
to the owners of the barges. He also laid
down an Admiralty rule of practice disentitling
the owners of the Cairnbahn to add the costs :
— Held, by the Court of Appeal, without pro-
nouncing upon the Admiralty rule of practice
so laid down, that as the Judge had found
that it was unreasonable for the owners of the
Cairnbahn to defend the action brought against
them by the owners of the barges, his decision
as to tiie costs must be affirmed. The Cairn-
bahn {No. 2), 30 T. L. E. 309— C.A.
Appeal from decision of Evans, P.
(29 T. L. K. 559), dismissed. lb.
Value of Vessel — Vessel Sunk while under
Charter to be Still in Force for Five Years.]
— The plaintiffs' vessel, the Helvetia, was
sunk by collision with the defendants' vessel
in July, 1912. The Helvetia had a charter-
party, dated 1909, which was to be in force
from the spring of 1911 until 1917, unless the
charterers cancelled it for any particular sea-
son : — Held, that the value of the Helvetia
must be ascertained, as at the date in 1917
when the charterparty would expire, taking
into account all the contingencies and the
special terms of the charterparty. The Em-
press of Britain, 29 T. L. E. 423— Evans, P.
Steam Trawler Sunk — Claim for Loss of
Future Fishing.] — The plaintiff's steam
trawler was sunk by collision between it and
the defendants' steamship, the latter vessel
being alone to blame : — Held, that a claim by
the plaintiffs for loss of fishing till they got a
new vessel to replace the one that was sunk
was not maintainable. The Anselma de Lar-
rinaga, 29 T. L. E. 587 — Bargrave Deane, J.
Sinking of Dredger — Loss of Use — Period
for Computation of Damages.] — The plain-
tiffs' dredger was sunk by the defendants'
steamship in the entrance to the Swansea
Channel on February 4, 1912. She was raised
on Sept(>mber 2, 1912, and was ready for use
on l*Y'l)ruary 0, 1913. It was impossible, until
after she had been raised, to dredge where she
was sunk, and a bank was formed by the sand
silting down on her. After she was raised
the plaintiffs hired another dredger : — Held,
that the plaintiffs were entitled to damages,
not merely for i\ui period during which they
had hired another dredger, but also for the
period during which they had lost the use of
their own dredger by reason of the fact that
she was sunk. The'Tugela, 30 T. L. E. 101
— Evans, P.
Tug and Tow — Collision between Tow and
Third Ship— Tug and Third Ship to Blame-
Tow not to Blame — Action by Tow against
Third Ship— Whole or Half Damage.]— There
was no general rule in force in the Court of
Admiralty which prevented an innocent ship
injured in consequence of a collision with her,
for which two other vessels were to blame,
from recovering the whole of the damage
sustained by her from both or either of the
delinquent ships. The Devonshire, 81 L. J.
P. 94; [1912] A.C. 634; 107 L. T. 179;
12 Asp. M.C. 210 ; 57 S. J. 10 ; 28 T. L. E. 551
— H.L. (E.)
Where, as the result of a collision between a
barge in tow of a tug and a third vessel, the
barge sustains damage and the tug and third
vessel are found to blame and the barge not to
blame, the Admiralty rule as to division of loss
does not apply, and the owners of the barge are
entitled to recover from the owners of the third
vessel the whole of the damage sustained by
the barge. The Milan (31 L. J. P. 105;
Lush. 388) explained and distinguished. lb.
Remoteness — Primary and Substantial
Cause — Loss of Use of Vessel — Strike of Work-
men— Delay of Repairs.] — The plaintiffs'
steamship was damaged by a collision for
which the defendants were liable. Ship re-
pairers contracted to do their utmost to repair
the steamship in eighteen weather working
days, but refused to guarantee a time owing
to possible difficulties in regard to weather
and labour troubles. A strike of workmen
occurred which delayed the repairs for about
nine weeks beyond the eighteen days. The
plaintiffs claimed damages for loss of use of
the vessel during the strike, and the defen-
dants contended that these damages were too
remote to be recovered. The defendants did
not allege that the strike was illegal : — Held,
that the defendants' negligence was the
primary and substantial cause of the loss of
use of the vessel during the whole time she was
laid up for repairs ; that strikes occur in the
ordinary course of business, and that this strike
was not such an independent act of third
persons as to put an end to the continuity and
efficiency of the former cause ; and that these
damages were the direct and immediate con-
sequence of the defendants' negligence, and
flowed from it directly and naturally, or in the
usual and ordinary course of things, and were
accordingly recoverable. H.M.S. London,
83 L. J. P. 74: [1914] P. 72; 109 L. T. 960;
12 Asp. M.C. 405 ; 30 T. L. E. 196— Evans, P.
Semble, that loss or damage which is clearly
the direct and immediate consequence of a
wrongful act is always proximate, and it is not
necessary to enquire whether it also flows from
the act directly and naturally, or in the usual
and ordinary course of things. 15.
Effect on Charterparty Hire — Bailees — Claim
for Bill of Lading Freight.]— The steamship
R. was let under charterparty by her owners
to charterers, and was sub-chartered to the
plaintiffs on the same terms except as regards
dates, and while on a voyage carrying cargo
under bills of lading was sunk by a collision
with the defendants' steamship, for which the
defendants were liable. The owners of the R.
1485
SHIPPING.
1486
had recovered damages in another action
against the defendants for the hire which they
would have earned under the charterparty, and
had lost owing to the collision. The plaintiffs
in this action claimed to recover from the
defendants the freight under bills of lading
for the voyage on which the R. was engaged
at the time of the collision, after deducting
both the hire under the sub-charter for the
remainder of the voyage and the expenses
which would have been incurred at the port of
discharge. Bargrave Deane, J., on the Regis-
trar's report, held that the meaning of the
charterparty and sub-charter was that the
owners of the steamship, though they per-
mitted her to be used by the plaintiffs for the
voyage, did not give up possession of her, but
were the carriers of the cargo and were alone
in a position to sue for the freight, and there-
fore the plaintiffs' claim must be disallowed :
— Held, by the Court of Appeal, on the facts
disclosed by a further report of the Eegistrar,
that the bills of lading having been signed by
the plaintiffs on their own behalf they had a
sufficient interest to entitle them to bring the
action. The OkeJiampton, 83 L. J. P. 5;
[1913] P. 173; 110 L. T. 130; 18 Com. Cas.
320: 12 Asp. M.C. 428; 29 T. L. R. 731— C.A.
5. Division of Loss.
See also Vol. XIII. 735, 2149.
Both Ships to Blame — Damage to Cargo on
one Ship — Action by Cargo Owners against
other Ship — Amount of Damage Recoverable.
— Where a collision has taken place between
two vessels for which both are to blame, the
innocent owner of the cargo on one of the
vessels which has sustained damage from the
collision is entitled to recover from the owner
of the other vessel one-half, but only one-half,
of the amount of the damages sustained. Tiie
Drumlanrig, 80 L. J. P. 9; [1911] A.C. 16;
103 L. T. 773; 11 Asp. M.C. 520; 55 S. J.
138; 27 T. L. R. 146— H.L. (E.)
Making Good Damage in Proportion to
Fault — Initial Fault — Costs,] — The defen-
dants' steamship, coming down the coast in
the North Sea and blowing her whistle for
fog, heard on her starboard bow another steam-
ship blowing her whistle for fog, and each
vessel, after blowing and answering fog signals
once or twice, changed her signal into two
short blasts, but neither vessel stopped her
engines, as she ought to have done. The
plaintiffs' steamship, going up the coast and
not blowing her whistle for fog, and being
very nearly ahead, but a little on the port
bow of the defendants' steamship, heard the
other two steamships exchanging the signals
of two short blasts, and was thereby misled
into hard-a-starboarding her helm and putting
her engines from slow to full speed ahead,
instead of stopping her engines, as she ought
to have done ; and she came into collision with
the defendants' steamship. The initial fault
for tile collision lay with the defendants'
steamship in not stopping her engines on hear-
ing the whistle of the steamship which she
did not strike. Botli plaintiffs' and defendants'
steamships were disobeying the rules by going
at an excessive speed : — Held, that both
vessels were to blame ; and that (on the prin-
ciple of making good the damage in proportion
to fault, under the Maritime Conventions Act,
1911) the defendants, as the initial fault lay
with their vessel, should pay 60 per cent, of
the total damage caused by the collision, and
the plaintiffs should pay the other 40 per cent. ;
and that, as both vessels were very nearly
equally to blame, there should be no order as
to costs. The Rosalia, 81 L. J. P. 79 ; [1912]
P. 109; 106 L. T. 351; 12 Asp. M.C. 166;
28 T. L. R. 287— Bargrave Deane, J.
Apportionment of Liability — Degree of Fault
— Fault Causing or Contributing to Collision
— Maritime Conventions Act, 1911.] — At the
trial of an action of damage by collision the
Judge found that both vessels were to blame,
but that one was much more to blame than
the other, and under section 1, sub-section 1
of the Maritime Conventions Act, 1911, he
apportioned the liability at four-fifths and
one-fifth. The Court of Appeal, being of
opinion that there was no evidence on which
the blame could be with any certainty appor-
tioned, directed that the liability should be
apportioned equally. The Peter Benoit,
84 L. J. P. 87; 31 T. L. R. 227— C.A.
Affirmed, 85 L. J. P. 12; 60 S. J. 88:
32 T. L. R. 124— H.L. (E.)
Per Pickford, L.J., and Bankes, L.J. : In
construing section 1, sub-section 1 of the Mari-
time Conventions Act, 1911, the fault to the
degree of which the liability is to be appor-
tioned must be read as meaning fault causing
or contributing to the collision. lb.
Decision of Bargrave Deane, J. (80 T. L. R.
277), varied. 75.
Right of Contribution — "Damage or loss"
— Damages Paid to Owners of Third Vessel.]
— Tiie effect of the provisions of section 1 of
the Maritime Conventions Act, 1911, is that
where two vessels are to blame for a collision,
in which damage has been caused to an inno-
cent third vessel, the owners of one of the
vessels in fault can recover from the owners
of the other of those vessels, as part of the
" damage or loss " caused to them, the pro-
portionate part of any sum recovered against
them by way of damages by the owners of the
third vessel. The Cairnhahn (No. 1), 83 L. J.
P. 11; [1914] P. 25; 110 L. T. 230; 12 Asp.
M.C. 455; 30 T. L. R. 82— C.A.
Right, as between Two Defendant Ships, of
One of them to Add Costs Paid to Plaintiff.] —
An Admiralty action was brought by the
owners of two barges against the owners of
the steamship Cairnbahn, and subsequently
the owners of the steam tug Nunthorpe, which
was towing the barges, were added as defen-
dants. The owners of the Cairnbahn likewise
brought an action against the owners of the
Nunthorpe. Both actions were tried together.
Judgment was given for the plaintiffs in the
first action for the full amount of damages
against the Cairnbahn alone owing to there
being a contract of towage between the tug
and the barges. In the second action the
Judge held that botli the Cairnbahn and the
Nunthorpe were to blame, and ordered the two
1487
SHIPPING.
1488
vessels in default to suffer the damages in
moieties. He found that it was unreasonable
for the owners of the Cairnhahn to defend the
first action, and held that therefore they were
not entitled for the purpose of the division into
moieties to add to the damages the costs payable
by them to the owners of the barges. He also
laid down an Admiralty rule of practice dis-
entitling the owners of the Cairnhahn to add
the costs : — Held, by the Court of Appeal,
without pronouncing upon the Admiralty rule
of practice so laid down, that as the Judge
had found that it was unreasonable for the
owners of the Cairnhahn to defend the action
brought against them by the owners of the
barges, his decision as to the costs must be
affirmed. The Cairnhahn (No. 2), 30 T. L. E.
309— C.A.
Appeal from decision of Evans, P.
(29 T. L. R. 559), dismissed. 75.
Collision of Steamship and Barge in Tow —
Steamship and Tug in Fault — Rule as to
Division of Loss — Damage to Barge — Damage
to Cargo on Barge.] — The first plaintiffs were
the owners of a tug and also bailees for hire
of a barge in tow of the tug ; and the second
plaintiffs were the owners of cargo laden on
the barge. A collision occurred between the
defendants' steamship and the barge while in
tow of the tug, for which the steamship was
held to be three-fourths liable, and the tug
one-fourth : — Held, that under the Maritime
Conventions Act, 1911, ss. 1, 9, sub-s. 4, the
barge must be deemed to be in fault, as she
was damaged partly by the fault of the
servants of her owners, and the fact that
those servants navigated from the tug and
not from the barge did not affect the liability,
and the first plaintiffs could only recover from
the defendants three-fourths of the damage to
the barge; secondlv, that the doctrine of Tlie
Milan (31 L. J. P. 105; Lush. 388), except
as to the proportions of the division of loss,
was incorporated in section 1 of the Maritime
Conventions Act, 1911, and the second plain-
tiffs could recover only three-fourths of the
damage to cargo from the defendants. The
Devonshire (81 L. J. P. 94; [1912] A.C. 6.34)
distinguished. The Umnna, 83 L. J. P. 106;
[1914] P. 141; 111 L. T. 415; 12 Asp. M.C.
527 ; .30 T. L. R. 498-Evans, P.
Consequential Damage — Negligence of
Plaintiff — Rule of Common Law or Admiralty
— Costs. — In an action brouglit against the
town council of the borougli of Sandwich to
recover the amount of the original and con-
sequential damage sustained by the plaintiff's
steam launch as the result of a collision be-
tween the launch and the defendants' dredger,
it appeared that both the plaintiff and the
defendants had been guilty of negligence in
respect of the original collision, but that blame
could not be thrown upon any one in particular
in respect of the con.sequential damage : —
Held, that the principles of the common law
as to contributory negligence, and not the
Admiralty rule as to both to blame, applied,
so that, instead of the loss, arising out of the
collision and the consequential damage, being
divided between the plaintiff and the defen-
dants, the plaintiff's action was barred by his
contributory negligence in respect of the
original collision, and therefore judgment must
be entered in favour of the defendants with
"public authority" costs. The Blow Boat,
82 L. J. P. 24; [1912] P. 217— Bargrave
Deane, J.
Costs — Both Vessels to Blame — Different
Degrees of Fault.] — Where in a collision action
it is found that each vessel has been to blame,
although in different degrees, the Court will,
unless in special circumstances, apply in cases
under the Maritime Conventions Act, 1911.
the old practice of making each vessel pay her
own costs. The Bravo, 108 L. T. 4.30;
12 Asp. M.C. 311; 29 T. L. R. 122—
Evans, P.
6. Limitation of Liability.
See also Vol. XIII. 740, 2151.
Hopper Barge — "Ship."] — A hopper barge,
with a rudder and other gear, used for dredg-
ing purposes, but with no means of propul-
sion, and towed to sea and back by a tug, is
a " ship " within section 742, and her owners
can limit their liability under section 503 of
the Merchant Shipping Act, 1894. The Mac
(51 L. J. P. 81; 7 P. D. 126) followed. The
Mudlark, 80 L. J. P. 117; [1911] P. 116;
27 T. L. E. 385— Bargrave Deane, J.
Loss Occurring through " actual fault or
privity" of Owner — Manager.] — A collision
occurred between the Fanny and the Lily
Green due to the former breaking adrift from
her moorings ; and in a collision action the
Fanny was held solely to blame. The plain-
tiff, the owner of the Fanny, now sought to
limit his liability' under section 503 of the
Merchant Shipping Act, 1894. Bargrave
Deane, J., held that the plaintiff, who was an
old man of eighty years of age and had been
confined to his house for eight years, was not
entitled to limit his liability, on the ground
that he was in fault in having appointed an
incompetent person as manager. On appeal.
held that there was no evidence that the
manager appointed by the plaintiff was incom-
petent, and that the plaintiff was entitled to
limit his liabilitv. The Fanny, 56 S. J. 289;
28 T. L. R. 217— C.A.
Pass of Commissioners of Customs — "For
the time . . . therein limited."] — By sec-
tion 23 of the Merchant Shipping Act, 1894,
"Where it appears to the Commissioners of
Customs . . . that by reason of special cir-
cumstances it would be desirable that permis-
sion should be granted to any British ship to
pass, without being previously registered from
any port in Her Majesty's dominions to any
other port within Her Majesty's dominions,
the Commissioners . . . may grant a pass
accordingly, and that pass shall, for the time
and within th(! limits therein mentioned, have
the same effect as a certificate of registry."
The Commissioners, purporting to act under
this section, granted a pass to the plaintiffs'
vessel " to make one voyage as a British un-
registered vessel from the port of London to
Immingham." While sailing under this pass,
1489
SHIPPING.
1490
the vessel by her bad navigation caused three
vessels, which belonged to some of the defen-
dants, to come into collision, whereby all
three sustained damage. The plaintiffs
claimed to limit their liability in respect of
this bad navigation of their vessel. Some of
the defendants alleged that the pass was in-
valid, as no time was mentioned therein in
accordance with the section, so that the vessel
could not be recognised as a British ship, and
the plaintiffs could not limit their liability : —
Held, that the pass was valid, having been
granted " for the time . . . therein men-
tioned " within the terms of the section —
namely, for the time of the voyage — and that
the plaintiffs were entitled to limit their
liability. The Wills No. 66, 83 L. J. P.
1j62; 30 T. L. R. 676— Eargrave Deane, J.
7. Tug and Tow.
Sep also Vol. XIII. 754. 2156.
Negligence of Tug— Non-liability of Tow.]
— In a case of a collision between a barge in
tow of a tug, in which the tug was admittedly
to blame, — Held (Lord E-obson dissenting), as
purely a question of fact, that the barge was
not to blame, as she was entitled to expect
that the tug would be reasonably and carefully
navigated and to act upon that belief. Hopper
Barge " W. H. No. 1 " ayid The Knight
Errant, 80 L. J. P. 22; [1911] A.C. 30;
103 L. T. 677; 11 Asp. M.C. 497— H.L. (E.)
Collision between Tow and Third Ship — Tug
and Third Ship to Blame — Tow not to Blame —
Action by Tow against Third Ship — Whole or
Half Damage.] — There was no general rule
in force in the Court of Admiralty which pre-
vented an innocent ship inJTired in consequence
of a collision with her, for which two other
vessels were to blame, from recovering the
whole of the damage sustained by her from
both or either of the delinquent ships. The
Devonshire, 81 L. J. P. 94; [1912] A.C. 634;
107 L. T. 179; 12 Asp. M.C. 210; 57 S. J.
10; 28 T. L. E. 551— H.L. (E.)
Where, as the result of a collision between a
barge in tow of a tug and a third vessel, the
barge sustains damage and the tug and third
vessel are found to blame and the barge not
to blame, the Admiralty rule as to division
of loss does not apply, and the owners of the
barge are entitled to recover from the owners
of the third vessel the whole of the damage
sustained bv the barge. The Milan (31 L. J.
P. 105; Lush. 388) explained and dis-
tinguished. //).
8. Compulsory Pilotage.
See also Vol. XIII. 763, 2158.
Payment of Salary in Addition to Pilotage
Fees— Fault of Pilot— Responsibility of Ship-
owner.]— In a compulsory pilotage district the
fact that a pilot dulj' licensed for that district
is paid a salary or bonus by the owners of a
line of steamships as one of their appropriated
pilots, in addition to his ordinary pilotage
fees, does not make the pilot the servant of the
shipowners so as to make them responsible
for the negligent navigation by him of one
of their vessels. The Campania, 30 T. L. E.
608 — Eargrave Deane, J.
Duty of Master and Crew to Render Assist-
ance to Pilot — Right to Interfere — Extent of
Right.] — A collision occurred in the river
Humber between a Swedish steamship in
charge of an English pilot under compulsion
of law and an English steamship. Both
vessels were going full speed in fog. At the
trial of an action brought in respect of the
collision the Judge found both vessels to
blame, and he also held that the owners of the
Swedish vessel could not avail themselves of
the defence of compulsory pilotage on the
ground that in his opinion the pilot had not
received from the officers and crew all the
assistance which he was entitled to. The
facts relating to this matter were as follows :
The master and the chief officer, who were
Swedes, but could speak English, were on the
bridge with the pilot. The look-out man was
a Swede, and could only speak Swedish. He
had already made several reports to the
bridge since the pilot had been in charge, and
shortly before he saw the other vessel loom-
ing through the fog he reported a long blast
on the starboard bow. The pilot took no
notice of the report. The master and the chief
officer heard what was reported, but neither
of them repeated or interpreted it to the pilot.
Nor did they point out to him that he was
disregarding the international rules by going
I full speed in fog and not stopping his engines
i on hearing a fog signal forward of the beam :
! — Held, by the Court of Appeal, that the above
: facts did not shew a failure on the part of the
i officers of the Swedish vessel to render the
pilot all the assistance which he was entitled
to, and therefore the owners were not pre-
I eluded from availing themselves of the defence
of compulsory pilotage. The Ape, 84 L. J.
P. 81: 31 T. L. E. 244— C. A.
Decision of Eargrave Deane, J. (83 L. J.
P. 86; [1914] P. 94), reversed. 7b.
Pilot's Misapprehension — Master's Look-
out— Warning — Omission of Sound Signals —
Reminder.] — A compulsory pilot was naviga-
ting a vessel for a white light and a green
light nearly ahead, as if they were both on a
vessel under way. Two minutes before the
collision the master on the bridge appreci-
ated the fact that the white light was that
of a vessel at anchor, but did not warn the
pilot of his misapprehension, and the vessels
came into collision. The helm of the vessel
was starboarded three times for the other
vessel, but the pilot did not order the whistle
to be blown in accordance with article 28 of
the Collision Regulations, and the master did
not remind him of it -.—Held, that, though the
pilot was in fault for the collision, the defence
of compulsory pilotage failed — first, because,
if the master's look-out had been careful, he
would have known that the other vessel was
at anchor long before he did, and when he
knew it in time to avoid the collision he ought
to have warned the pilot ; and secondly, be-
cause the master ought to have reminded the
pilot of the fact that he had not ordered any
sound signal when starboarding, and if sound
1491
SHIPPING.
1492
signals had been given, this would probably
have led to some signal in reply, which would
very likely have avoided the collision. The
Elysia, 81 L. J. P. 104; [1912] P. 152;
106 L. T. 896 ; 12 Asp. M.C. 198 ; 28 T. L. E.
376— Evans, P.
When Compulsory."! — Although section 32,
sub-section 2 of the Pilotage Act, 1913, pro-
vides that " a ship whilst being navigated
within any closed dock ... in a pilotage
district shall notwithstanding anything in this
Act be deemed to be navigating in a district
in which pilotage is not compulsory,"' yet the
effect of section 59, which provides that " any
enactment, order, ... or provision with refer-
ence to pilotage affecting any pilotage district
in particular . . . shall remain in force . . .
until provision is made by Pilotage Order . . .
superseding any such enactment ... or pro-
vision," is that any local Act requiring com-
pulsory pilotage remains in force until it has
been superseded in accordance with section 59.
The Port Hunter, 31 T. L. R. 181— Bargrave
Deane, J.
Collision when Pilot in Charge of Ship
Outside Compulsory Pilotage Area.] — By sec-
tion 633 of the Merchant Shipping Act, 1894,
the owner or master of a ship is not answer-
able " for any loss or damage occasioned by
the fault or incapacity of any qualified pilot
acting in charge of that ship within any dis-
trict where the employment of a qualified pilot
is compulsory by law '" : — Held, that the
exemption only applied if the accident took
place in the defined and fixed area within
which pilotage was compulsory. " Beech-
grove " Steamship Co. v. Aktieselskabet Fjord
of Kristiania, 85 L. J. P.C. 1 ; 32 T. L. R. 44
— H.L. (Sc.)
Therefore, where a vessel, inward bound,
took on board a pilot at the usual and proper
place, but outside the limits of the river Clyde
as defined by the Clyde Navigation Consolida-
tion Act, 1858, within which pilotage was
compulsory under the Act, and came into
collision with another vessel before she had
come within those limits, — Held, that she
could not set up the defence of compulsory
pilotage, notwithstanding that the pilot was,
under the by-laws made in virtue of powers
conferred by the Act, in sole charge of the
vessel at the time of the collision. General
Steam Navigation Co. v. British Colonial
Steam Navigation Co. (37 L. J. Ex. 194;
L. R. 3 Ex. 330; 38 L. J. Ex. 97; L. R.
4 Ex. 238) and The Charlton (8 Asp. M.C. 29)
disapproved. 76.
Decision of the First Division of the Court
of Session in Scotland ([1915] S. C. 281;
52 Sc. L. R. 244) reversed. lb.
Ship Navigating within Compulsory Pilotage
District — Ship Stopping Outside Port within
Compulsory Pilotage District for Orders —
Orders Taken to her by Boat Coming Out of
Port — "Making use of any port in the dis-
trict."]— Under section 11 of the Pilotage Act,
1913, " Every ship (other than an excepted
ship) while navigating in a pilotage district
in which pilotage is compulsory for the pur-
pose of . . . making use of any port in the
district . . . shall be either — (a) under the
pilotage of a licensed pilot of the district ; or
(b) under the pilotage of a master or mate
possessing a pilotage certificate for the dis-
trict who is boyia fide acting as master or mate
of the ship." A ship, which was not an
excepted ship, in the performance of her
charterparty had to proceed to Dover to receive
orders as to her port of discharge. She passed
Dungeness, and proceeded to Dover, where she
stopped for half an hour about a quarter of a
mile outside the end of the Admiralty Pier,
when a boat came out of the port with orders
for her to proceed to Hamburg, to which port
she immediately proceeded. The London
pilotage district extends to Dungeness, and
the port of Dover is within that district.
Neither the master nor the mate nf the vessel
held a pilotage certificate for the district : —
Held, that the ship, by stopping outside the
port of Dover for orders, was making use of
that port within the meaning of section 11
of the Pilotage Act, 1913, and was therefore
bound, while navigating in the London pilot-
age district for which pilotage is compulsory
for the purpose of making use of a port in
that district, to be under the pilotage of a
licensed pilot of the district. Cannell v.
Lawther. Latta d Co., 83 L. J. K.B. 1832;
[1914] 3 K.B. 1135; 112 L. T. 84; 20 Com.
Cas. 29: 12 Asp. M.C. 578; 30 T. L. R. 680—
Bailhache, J.
Port of London.] — -The master of a steam-
ship belonging to the Port of London and
outward bound from that port on a voyage
with a cargo and passengers is bound to
employ a licensed Trinity House pilot while
the steamship is within the limits of that
port; and consequently, if the steamship while
within the Port of London in charge of such
a pilot collides with and damages another
vessel through the negligence of the pilot her
owners are not liable. The Hankow (48 L. J.
P. 29; 4 P. D. 197) approved. The Umsinga,
81 L. J. P. 65: [1912] P. 120; 106 L. T. 722;
12 Asp. M.C. 174; 56 S. J. 270; 28 T. L. R.
212— C. A.
Trinity House — Extra Coals — " Navigating
in ballast" — "Stores."] — A steamship which
sails for a loading port for a long voyage
thence to a port of discharge, and which has
in her only three-eighths of the tonnage of
her dead- weight carrying capacity, this being
made up partly by her tanks being partially
filled with water ballast and partly by extra
coals for her long voyage, carried in her
bunkers and in part of her cargo space, is
" navigating in ballast " within the Trinity
House By-law approved by Order in Council
of July 25, 1861; and is thereby exempted
from compulsory pilotage within the pilotage
jurisdiction of the Trinity House. The
Tongariro, 82 L. J. P. 22; [1912] P. 297;
107 L. T. 28; 12 Asp. M.C. 235; 28 T. L. R.
336 — Bargrave Deane, J.
Semble, the extra coals of the steamship are
" stores " within the meaning of the clearance
certificate. 7b.
Putting into the Humber — Bunker Coals —
" Stores."] — The owners of a steamship which
1493
SHIPPING.
1494
puts into the Humber for bunker coals and
there, owing to the fault of her pilot, comes
into collision with another vessel, cannot
escape liability on the ground of compulsory
pilotage, as bunker coals are " stores " within
the meaning of section 24 of the River Humber
Pilotage Act, 1832, which exempts from com-
pulsory pilotage " any ship or vessel putting
into the river Humber for the purpose of
shelter, or of obtaining stores or provisions
only." The Nicolay Beloztcetow. 82 L. J.
P. 37; [1913] P. 1; 107 L. T. 862; 12 Asp.
M.C. 279; 29 T. L. E. 160— Evans, P.
The provisions in the Manchester, Sheffield,
and Lincolnshire Railway Act, 1849, are sub-
sidiary to those of the River Humber Pilotage
Act, 1832, and the obligations of, and exemp-
tions from, compulsory pilotage apply to
Grimsby Docks as they did to Grimsby Roads
before the Act of 1849 was passed. lb.
Defence on Merits and on Compulsory
Pilotage — Failure of Defence on Merits.] —
The .4., which was lying at anchor, was run
into during a fog by the 0. and damaged. In
an action against the owners of the 0. in
respect of the damage the defendants pleaded
that the collision, so far as they were con-
cerned, was due to inevitable accident; they 1
also pleaded the defence of compulsory pilot- 1
age. At the trial the defendants failed on the
issue of inevitable accident, but succeeded on
the defence of compulsory pilotage : — Held, '
that in the circumstances judgment should be .
entered for the defendants without costs. The 1
Ophelia, 29 T. L. R. 656— Bargrave Deane,
J. Affirmed, 30 T. L. R. 61— C.A.
9. The Regulations.
(Cases arranged under the several Articles
of the Regulations of 1897.)
PRELIMINARY.
Scope of the Rules : Definitions.
See also Vol. XIII. 787, 2167.
Drifter — " Under way."] — A steam drifter,
shooting her nets and sailing with a little
mizen sail at about one knot an hour, and
with steam up, but unable to go ahead or
astern without fouling her propeller, is " under
way " within the Preliminary Note to the
Sea Regulations, 1897. She is " under
steam " and therefore not a sailing vessel
within that Note. The Pitgaveney, 79 L. J.
P. 65 ; [1910] P. 215 ; 103 L. T. 47 ; 11 Asp.
M.C. 429; 26 T. L. R. 473— Evans, P.
Article 9.
Fisliing Boats.
See also Vol. XIII. 794, 2169.
Trawler — Proper Lights — Interval between
Two Shoots of the Trawl — Trawler Going
Ahead.] — The plaintiffs' trawling smack was
carrying the proper lights for a sailing trawler
with her trawl down, and having got her
trawl up she hoisted her foresail, with the
result that before again shooting her trawl
she was making one and a half to two knots.
A collision took place, during this interval,
between the trawler and the defendants'
steamer : — Held, that both vessels were to
blame, as the trawler ought to have had her
sailing lights up, and the steamer ought to
have kept out of the way in view of the lights
which the trawler was exhibiting. The
Skrim, 30 T. L. R. 555— Bargrave Deane, J.
Drifter — " Vessel fishing with drift nets."]
— A steam drifter shooting her nets and sail-
ing with a little mizen sail at about one knot
an hour and with steam up, but unable to go
ahead or astern without fouling her propeller,
is " under way " within the Preliminary Note
to the Fishing Regulations, 1897. She is a
" vessel fishing with drift nets " with nets
partly in the water, within article 9 (b), and
is bound to carry always in the proper
positions the two white lights therein pre-
scribed, and when she alters her heading the
position of the lights should be changed
accordingly, and no practice of fishermen for
such a vessel while shooting her nets to carry
her lights otherwise is any excuse. The
Pitgaveney, 79 L. J. P. 65; [1910] P. 215;
103 L. T. 47; 11 Asp. M.C. 429; 26 T. L. R.
473— Evans, P.
Practice of Fishermen — Incumbered Fishing
Yessel — "Special circumstances" Necessita-
ting Departure from Rules — Statutory Pre-
sumption of Fault — Possibility of Contribution
to Collision.] — The plaintiffs' sailing drifter
was sailing at night in a strong breeze
towards her fishing grounds, making about
four knots, when she came into collision with
the defendants' steam drifter. The steam
drifter was shooting her nets and sailing with
a little mizen sail at about one knot an hour,
with steam up, but unable to go ahead or
astern without fouling her propeller, and was
carrying the two white lights prescribed by
article 9 (b), but with the lower light not in
the direction of the nets, but away from them,
in contravention of the article, though intend-
ing after shooting to bring her head round to
the nets, when the lower light would be in
the right direction : — Held, that the steam
drifter was an incumbered fishing vessel, and
was relieved by " special circumstances " ren-
dering a departure from the Rules necessary
under article 27, from the duty to keep out
of the way of a sailing vessel under article 20 ;
and that the sailing drifter ought to have kept
out of the way, and had a very bad or no
look-out, and was alone to blame; for though
the steam drifter had committed a breach of
article 9 (b) by the position of her lights, and
was therefore subject to the statutory pre-
sumption of fault under section 419 of the
Merchant Shipping Act, 1894, this breach
could not by any possibility have contributed
to the collision. The Twecdsdale (58 L. J.
P. 41; 14 P. D. 164) and The Engli.shman
(47 L. J. P. 9; 3 P. D. 18) followed. lb.
Article 15.
Fog Signals.
Srr n/.s'o Vol. XIII. 798, 2173.
Duty to Give Sound Siganals — Tug Fast but
not Towing.] — When a tug is accompanying
1495
SHIPPING.
1496
a steamship iu a fog with the intention of
towing her, and a towing rope is out between
them, but there has been no towing, the tug
is not a "vessel . . . towing," and the steam-
ship is not a " vessel towed," so as to be
bound to give fog signals accordingly under
article 15, paragraph (e) of the Sea Regula-
tions. 1897. The Sargasso, 82 L. J. P. 9;
[1912] P. 192; 107 L. T. 204; 12 Asp. M.C.
202; 28 T. L. R. 444— Evans, P.
In such circumstances, if, which is doubtful,
the tug is to be considered as a separate steam
vessel from the steamship, so that each might
sound a prolonged blast under article 15 (a),
yet from the point of view of safe navigation
and warning to others it is less confusing for
the steamship to give the prolonged blast
under that article, unaccompanied by any
such signal from the tug. lb.
In such circumstances, if the tug is ordered
round from one bow of the steamship to the
other she may properly blow a prolonged
blast, even if there is no obligation on her
to do so under article 15 (a). lb.
Apportionment of Blame.] — In a fog colli-
sion, when one steamship was only to blame
for excessive speed, and the other for bad
look-out, excessive speed, and in other
respects, the blame was apportioned one-third
to the first vessel, and two-thirds to the
second; and no costs were given. lb.
Excessive Speed.] — When a fog is so thick
that steamships can only see each other at
one hundred yards, the speed of a steamship
is excessive if it is such that she cannot stop
in about her own length, and if she could
have proceeded and have had steerage way at
a lower speed than she had. lb.
One Vessel at Anchor — Onus of Proof.] —
Where in a fog there has been a collision
between two vessels, one of which was at
anchor, the vessel at anchor has not the onus
of proving that her sound signals were audible
in the approaching vessel. If the vessel at
anchor sounded the regular signals, it is for
the other vessel to shew some reason or excuse
for the accident. The Valdes. 31 T. L. R. 144
— Evans, P.
Article 16.
Speed in Fogs.
See also Vol. XIII. 799, 2175.
Breach of Article 16.] — A collision took
place in a dense fog between the Children's
Hope, a steam drifter, and the Ariadne, a
steam trawler. The Children's Hope was
stemming the ebb tide waiting for the fog
to clear before going up the Humber to
Grimsby. In order to stem the tide, which
was running with the force of two or three
knots, her engines were kept working slowly
ahead, and she was duly sounding her whistle
for fog. In these circumstances the whistle
of the steam trawler Ariadne was heard on
the port bow. The Children's Hope blew her
whistle, but did not stop her engines, her
excuse for not doing so being that there was
a sailing vessel at anchor about a hundred
yards astern of her, and that the tide would
have taken her on to that vessel had she
stopped. Shortly afterwards the Ariadne,
which was outward bound, loomed in sight
about two ship's lengths off, and almost at
once her stem struck the port bow of the
Children's Hope, doing damage. It was ad-
mitted that the Ariadne was to blame, but
it was contended that the Children's Hope
was also to blame for a breach of article 16
of the International Regulations in not
stopping her engines on hearing the whistle
of the Ariadne forward of her beam : — Held,
that there were no circumstances justifying
the non-observance by the Children's Hope of
the provisions of article 16, and therefore that
she was also to blame for collision. The
Ariadne, 27 T. L. R. 304— D.
" Moderate speed " What is — " Navigate
with caution."] — As a rule those in charge
of a steam vessel in a fog, in order to go at a
" moderate speed " within article 16 of the
Sea Regulations, 1910, ought not to go so fast
that the vessel cannot be pulled up within
the distance which they can see. The
Counsellor, 82 L. J. P. 72; [1913] P. 70—
Bargrave Deane, J.
To alter the helm of a steam vessel on
hearing the first whistle of another steam
vessel ahead in a fog at sea, before doing
anything to ascertain the position of the other
vessel, is not to " navigate with caution "
within article 16 of the Sea Regulations, 1910.
lb.
Article 17.
Steering and Sailing Rules.
See also Vol. XIII. 804, 2179.
Watching Compass Bearing of Approaching
Vessel.] — According to the defendants' case,
those on board their steamship, while on a
course for a lightship in the North Sea,
observed first one white light, and afterwards
a second white light, on the plaintiffs' steam-
ship a long distance off and (as they alleged)
right ahead, and taking the vessel to be a
fisherman they afterwards starboarded to get
on to their course for another lightship ; when
they had starboarded about two points, the
plaintiffs' vessel blew a long blast, being then
(as they alleged) two to two and a half points
on their starboard bow and distant about a
half to a quarter of a mile ; and in spite of
subsequent manoeuvres a collision occurred,
the plaintiffs' vessel just before the collision
showing a dim red light. Those on the
defendants' steamship had not watched the
compass bearing from their vessel of the
plaintiffs' steamship, and, as the Court found,
until they altered their course the plaintiffs'
steamship was on their port bow. The plain-
tiffs' steamship carried only one mast-head
light, and what the second light was in fact
was not ascertained, but the Court found that
her red light was in a faulty condition : —
Held, that the defendants' vessel was to
blame for bad look-out, and because those
on board had not obeyed the Preliminary to
1497
SHIPPING.
1498
article 17 of the Sea Regulations by "care-
fully watching the compass bearing of the
approaching vessel," which would have shewn
that the plaintiffs' vessel was broadening on
their port bow, and that there must be risk
of collision if they starboarded ; and that the
plaintiffs' vessel was also to blame for the
faultv red light. The President Lincoln,
81 L. J. P. 5; [1911] P. 248; 105 L. T. 442;
12 Asp. M.C. 41 — Bargrave Deane, J.
Article 19.
Steamships Crossing.
See also Vol. XIII. 810, 2180.
Fog — Rules Applicable.] — Article 19 of the
Regulations for Preventing Collisions at Sea
does not apply in cases where the two vessels
are not visible to each other by reason of
fog. In cases of fog, only the fog rules apply,
the other rules being only applicable where the
vessels are in sight of each other. The King,
27 T. L. R. 524^Bargrave Deane, J.
Steam Vessel Coming Out of Dock — Rules
of Good Seamanship.] — Article 19 of the Sea
Regulations applies in the case of a steam
vessel coming out of dock, unless the circum-
stances are such as to displace its application.
In the beginning, when a steam vessel is
manoeuvring out of dock, and another vessel is
very close, it is impossible to apply article 19,
and then the rules of good seamanship will
govern the case. In coming out of dock, a
vessel ought to navigate with the greatest
possible caution. The Llanelly, 83 L. J. P.
37 ; [1914] P. 40 ; 110 L. T. 269 ; 12 Asp. M.C.
485; 30 T. L. R. 154— D.
A steamship was coming out of a lock of a
dock in the river Mersey, shewing her mast-
head and red lights to vessels coming up, and
those on board saw the masthead and green
lights of a steamer lower down the river
coming up against the ebb tide, and also two
other steamers coming up outside of her; the
nearest steamer blew two short blasts and
starboarded, and the outcoming steamer,
which could have remained in the bell mouth,
blew one short blast and proceeded at such
speed as she could to cross ahead of the three
other steamers ; the nearest steamer repeated
her two short blasts, and afterwards, when
she got to close quarters, reversed her engines,
but came into collision with the outcoming
steamer : — Held, that the outcoming steamer
ought to have remained in the bell mouth till
the nearest steamer had passed, and was three-
fourths to blame for the collision ; but that,
reversing the decision of the Court below, the
nearest steamer, when put in a difficult posi-
tion did, by repeating her two short blasts,
determine upon a course which might bring
her into collision, and ought to have reversed
her engines before continuing to starboard,
and was one-fourth to blame. lb.
Steam Trawler with Trawl Down — Triplex
Light Shewn — Crossing Steamers — Duty as to
Keeping out of Way.]— A steam trawler with
her trawl down, and in this sense an incum-
bered vessel, and also exhibiting the proper
light — the triplex light — prescribed by arti-
cle 9 (d) of the Sea Regulations for a vessel so
engaged, is under no obligation to obey the
provisions of article 19 and to keep out of the
way of a crossing steam vessel which is ap-
proaching her on her starboard side. The
Tweedsdale (58 L. J. P. 41; 14 P. D. 164) and
The Upton Castle (75 L. J. P. 77; [1906]
P. 147) approved. The Craigellachie (77 L. J.
P. 145; [1909] P. 1) dissented from. The
GrovehuTst, 79 L. J. P. 124; [1910] P. 316;
103 L. T. 239; 11 Asp. M.C. 440— C.A.
Steam Trawler "engaged in trawling" —
Steamship Crossing — Effect of Exhibition of
Triplex Light— Giving Way.]— Bv article 9
(d) 1 of the Regulations for Preventing
Collisions at Sea, the exhibition of a triplex
light is rendered compulsory on a steam vessel
" engaged in trawling," and an intimation is
thereby given to a crossing steam vessel that,
as the trawler, by being incumbered, is
unable to comply with article 19 of the same
Regulations, and keep out of the way, the
steam vessel must given way — The Grovehurst
(79 L. J. P. 124; [1910] P. 316)— but that
the trawler will, under article 21, keep her
course and speed. The Ragnhild, 81 L. J.
P. 1; [1911] P. 254; 105 L. T. 446;
12 Asp. M.C. 44 — Bargrave Deane, J.
Where, therefore, a steam trawler was (as
the Court found; duly exhibiting the triplex
light, and those in charge did not stop on
seeing a crossing steam vessel causing immi-
nent risk by suddenly porting when close to,
and a collision occurred, — Held, that the
crossing steam vessel was alone to blame, for,
in the circumstances, as a matter of seaman-
ship, and, under the rules, as a matter of law.
those in charge of the trawler were justified
in keeping their course and speed. lb.
Buoyed Channel — Suction — Fresh Evidence
on Appeal.] — A collision took place off Cowes
in the Isle of Wight, between a large ocean
liner, in charge of a duly licensed pilot, and a
cruiser of the Royal Navy. At the time of the
collision the liner was proceeding from South-
ampton Water towards Spithead through the
eastern buoyed channel to the south of the
Ryde Middle Bank ; and the cruiser was pro-
ceeding from the Solent towards Spithead
through the same channel on a course some-
what to the southward of and converging
towards that of the liner, which thus had the
cruiser on her starboard side. Cross-actions
of damage for collision having been brought, —
Held, by Sir Samuel Evans, P., upon the
evidence, that the vessels were crossing vessels,
and that the liner, having the cruiser on her
starboard side, should therefore by article 19
have kept out of the way of the latter ; that
the cruiser was not to blame ; that the cause
of the collision was the faulty navigation of
the liner, which, however, was due solely to the
negligence of her pilot and not to that of
persons for whom her owners were responsible ;
and therefore that both actions failed. Ap-
peals having been entered in both cases, — Held,
by the Court of Appeal, which had allowed
the owners of the liner to bring evidence that
had not been available at the trial as to the
1499
SHIPPING.
1500
finding on the sea bottom of wreckage from
the cruiser, for the purpose of shewing that
the place of collision was different from that
fixed by the President, that, notwithstanding
this fresh evidence, the conclusions of the
President were correct, and that the appeals
should be dismissed. The Ohjmpic and
H.M.S. Haicke, 83 L. J. P. 113; [1913] P.
214 — C.A. See s.c. in H.L. infra.
Per Kennedy, L.J. : In certain special cir-
cumstances, although two steam vessels are
visibly approaching one another on converging
courses, the crossing rule, article 19, will not
bj held to regulate their respective duties
towards each other. Such circumstances have
been held to exist when the vessels were in a
river— T/ie Velocity (39 L. J. Adm. 20; L. R.
3 P.C. 44; 6 Moore P.C. (x.s.) 263); and
though they could rarely, if ever, exist in the
case of steam vessels on converging courses in
the open sea, there seems to be no reason for
confining them to the navigation of a river.
Ih.
The effect of suction or interaction in bring-
ing about a collision between two vessels pro-
ceeding along a shallow channel at high speed
considered. Ih.
Concurrent Findings of Fact in Court Below
— Additional Evidence on Appeal.] — Where
there have been concurrent findings of fact in
the Courts below the House of Lords will not.
in ordinary cases, review those findings. But
in a case in which additional evidence, which
had not been before the Court of first instance,
and tended to shew that the witnesses on
both sides were mistaken as to a material fact,
was admitted in the Court of Appeal, and.
after the hearing in the Court of Appeal, the
parties agreed that certain other evidence
which had been before that Court was in-
accurate in some particulars, the House of
Lords allowed the whole case to be re-opened.
The Pekin (66 L. J. P.C. 97; [1897] A.C. 532)
distinguished and explained. The Olympic
and H.M.S. Haicke, 84 L. J. P. 49; [1915]
A.C. 385; 112 L. T. 49; 12 Asp. M.C. 580;
31 T. L. R. 54— H.L. E.)
Decision of the Court of Appeal (83 L. J.
P. 113; [1913] P. 214) affirmed on the facts.
76.
Article 20.
Steamship and Sailing Ship.
See also Vol. XIII. 811. 2181.
Drifter — " Steam vessel proceeding." —
A steam drifter, shooting her nets and sailing
with a little mizcn sail at about one knot an
hour, and with steam up, but unable to go
ahead or astern without fouling her propeller,
is " under way " within the Preliminary Note
to the Sea Regulations, 1897. If she was not
an incumbered vessel, and if no departure
from the Rules was necessary under article 27,
she would be "a steam vessel proceeding "
within article 20. and would have to keep out
of the wav of a sailing vessel. The Pitgaveney,
79 L. J. P. 65; [1910] P. 215: 103 L. T. 47;
11 Asp. M.C. 429; 26 T. L. R. 473— Evans, P.
Article 21.
Keep her Course and Speed.
See also Vol. XIII. 814, 2183.
Single Ship and Squadron of Warships —
Single Foreign Ship.] — A Spanish steamship
belonging to the plaintiffs was proceeding in
the North Sea on a course of N.21''W., and
a squadron of five British cruisers steering
N.27'^E. were approaching abaft her port
beam, three cruisers being in line and one
smaller cruiser being on each side of the lead-
ing cruiser. The Board of Trade Notice,
1897, in effect warns single ships to keep out
of the way of, and avoid passing through, a
squadron of warships, but the plaintiffs'
officers, being Spaniards, had not heard of
this notice. The Spanish steamship hoisted
the Spanish ensign in compliment to the
cruiser, and kept her course and speed until
just before the collision, purporting to act
under article 21 of the Sea Regulations ; and
the second cruiser in line came into collision
with her, the defendant, the navigating officer
in charge of the cruiser, being negligent among
other respects in not manoeuvring to keep out
of the way until too late. The Spanish steam-
ship was charged with negligence in not keeping
out of the way of the squadron and in not obey-
ing the Board of Trade Notice. The plaintiffs'
master and the defendant both testified at the
trial that by the regulations which applied it
was the duty of the Spanish steamship to keep
her course and speed, and of the cruiser to
keep out of the way : — Held, that in the cir-
cumstances the Spanish steamship was not
negligent in keeping her course and speed
under article 21 of the Sea Regulations; that,
as regards the Board of Trade Notice, the
plaintiffs' officers, being Spaniards and not
having heard of the notice, were not negligent
as regards it, and that, the defendant knowing
that the other vessel was Spanish, the defen-
dant was alone to blame. H.M.S. King
.Alfred, 83 L. J. P. 61 ; [1914] P. 84 ; 109 L. T.
9.56; 12 Asp. M.C. 401; 30 T. L. R. 102—
Evans, P.
Steamships Approaching or Leaving Dock
Entrance — Application of Collision Regula-
tions — Crossing Rule.] — The appellants'
steamship, which was bound to Barry Roads,
Bristol Channel, for orders, expecting to re-
ceive them from the signal station, but failing
to do so proceeded in an easterly direction
across the entrance to the Barry Docks, keep-
ing so close to the dock entrance as seriously
to obstruct the entrance to the dock. Whilst
so doing she came into collision with the
respondents' steamship, which was coming out
of the dock from between its breakwaters.
The latter vessel had put her helm a-port as
soon as she could safely do so, and had given
one short blast, but the appellants' vessel,
instead of keeping her course and speed and
not obstructing the dock entrance, kept in the
way by which alone the other vessel could pass
out. Upon these facts the Judge in the Court
below held that the appellants' vessel was
alone to blame upon two grounds — first, that
she had no right to be so close in to the
1501
SHIPPING.
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entrance of the docks as to obstruct it ; and
secondly, that she had improperly neglected to
keep her course and speed by reversing her
engines in the path which she ought to and
might reasonably have known the respondents'
vessel was going to take ; and was therefore to
blame under the crossing rule — article 21 of
the Regulations for Preventing Collisions at
Sea, 1897 -.—Held, by the Court of Appeal
CLord Alverstone, C.J., and Kennedy, L.J. ;
Buckley, L.J., dissenting), that, assuming
that the crossing rule applied, yet by reason
of the appellants' vessel being so close in to
the dock entrance the respondents' vessel was
exonerated from blame under article 27 for not
stopping and reversing her engines sooner,
because if she had done so there was risk
of the vessel being put upon the breakwater.
Held also, by Kennedy, L.J., that in the
peculiar circumstances of the case — the narrow-
ness of the dock entrance, the neighbourhood
of the breakwater, the setting of the tide, and
the closeness of the appellants' vessel — no
blame, either in respect of seamanship or as
a breach of article 23, could justly be imputed
to the respondents' vessel for not stopping and
reversing earlier than she did. The Hazle-
mere, 80 L. J. P. 25: [1911] P. 69; 103 L. T.
890; 11 Asp. M.C. 536— C. A.
Lord Alverstone, C.J., expressed no opinion
on the question how far the Regulations for
Preventing Collisions at Sea, 1897, would
apply in the case of a vessel coming out of dock
under circumstances similar to those in which
the respondents' vessel was placed. lb.
Steam Trawler Trawling — Incumbered Fish-
ing Vessel — Not Stopping Engines.] — The
plaintiffs' steam trawler, trawling in the
North Sea and shewing (as the Court found)
her proper trawling lights, was approached on
the starboard bow by the defendants' steam-
ship, crossing her course and shewing mast-
head and red lights. The steamship star-
boarded and brought the vessels green to
green, and so continued until just before the
collision, when she ported and opened her red
light again, and her starboard bow struck the
starboard side of the trawler right aft at a
fine angle. The trawler kept her course and
speed, and did not stop her engines : — Held,
that the steamship, whose duty it was to keep
ont of the way as she was crossing the course
of an incumbered fishing vessel, was to blame
for bad look-out and bad seamanship, and
that the trawler, whose duty it was to keep her
course and speed except perhaps at the last
moment, was not to blame for not stopping
her engines, both as a matter of seamanship
and in respect of her obligations as an incum-
bered fishing vessel under article 21 of the
Sea Regulations. The Raqnhild, 81 L. J. P. 1 ;
[1911] P. 254 ; 105 L. T. 4-16 ; 12 Asp. M.C. 44
— Bargrave Deane, J.
Crossing Ships — Duty to Give Way — Duty
to Keep Course and Speed — Duty to Take
Action to Avert Collision — Test to be Applied.]
— A steam vessel on a course of N.26°\V.
sighted the masthead and then the green light
of a steam vessel, which was on a course of
S.74°E., about two points on the port bow,
about six miles off. The vessels ultimately
collided. The steam vessel on the N.26°W.
course, whose duty it was to keep her course
and speed under article 21, obeyed the article
until shortly before the collision, when she
slowed her engines and sounded a long warn-
ing blast, and shortly afterwards put her
engines full speed astern and sounded three
short blasts on her whistle. The steam vessel
on the S.74°E. course, whose duty it was to
keep out of the way under article 19 and
avoid crossing ahead under article 22, star-
boarded and alleged she heard a short blast
from the vessel on the N.26^W. course, when
she put her engines full speed astern and
sounded three short blasts on her whistle,
keeping her starboard helm up to the collision.
In an action for damages, — Held, that the
vessel on the N.2fi°W. course, which, while
admittedly keeping her course, eased her
speed, was not to blame for doing so; for,
it being difficult to decide when the precise
moment has arrived at which the giving-way
vessel should take action, the officer in charge
must be allowed some latitude, and when it
is shewn that he is carefully watching the
other vessel and endeavouring to do his best
to act at the right moment, he ought not to
be held to blame even if it afterwards appears
that he waited too long or acted too soon.
Held, further, that the vessel on the S.74°E.
course was to blame for attempting to cross
ahead of the other vessel and for not indicat-
ing her course on her whistle when she star-
boarded and when she first reversed her
engines. The Huntsman, 104 L. T. 464;
11 Asp. M.C. 606 — Bargrave Deane, J.
Article 25.
Narrow Channel ; Starboard Side Rule.
See also Vol. XIII. 822, 2188.
Firth of Clyde.]— The Firth of Clyde, above
a line drawn from the Cloch lighthouse to the
Gantocks beacon, is a narrow channel in the
sense of article 25 of the Regulations for Pre-
venting Collisions at Sea, 1897. Clyde
Navigation Trustees v. Wilhelmsen, [1915]
S. C. 392— Ct. of Sess.
Article 26.
Sailing Ship and Fishing Craft.
See also Vol. XIII. 2190.
Drifter — " Sailing vessel fishing with
nets."] — A steam drifter, shooting her nets
and sailing with a little mizen sail at about
one knot an hour, and with steam up, but
unable to go ahead or astern without fouling
her propeller, is " under way " within the
Preliminary Note to the Sea Regulations,
1897. She is " under steam," and therefore
not a " sailing vessel " within the Preliminary
Note, and she is not " a sailing vessel fishing
with nets " within article 26 of the Regula-
tions so as to bind other sailing vessels to keep
out of the way under that article. The
Pitgaveney, 79 L. J. P. 65; [1910] P. 215;
103 L. T. 47; 11 Asp. M.C. 429; 26 T. L. R.
473— Evans, P.
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SHIPPING.
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Article 28.
Sound Signals.
See also Vol. XIII. 2191.
Vessels in Sight of One Another—" Course
authorised or required by these Rules."] —
The duty which article 28 of the Eegulations
for Preventing Collisions at Sea imposes
upon steam vessels in sight of one another to
give appropriate sound signals " in taking any
course authorised or required by these rules "
is not limited to the case of a course which
at the trial of a collision action is found by
the Court to have been authorised or required
by the Eules. It applies to the case of any
course taken by a vessel purporting to act
under any of the Eules with the intention
of avoiding immediate danger. The Hero,
80 L. J. P. 66; [1911] P. 128; 105 L. T.
87 ; 27 T. L. E. 398— C.A. Affirmed, 81 L. J.
P. 27 ; [1912] A.C. 300 ; 106 L. T. 82 ; 12 Asp.
M.C. 108; 56 S. J. 269; 28 T. L. E. 216—
H.L. (E.)
Crossing Vessels— In Sight of One Another
— Keep-on Vessel — *' Directing . . . course."]
— A collision occurred between two steam-
ships which approached on crossing courses
from a long distance. The giving-way vessel
neglected to alter her course to port or to
slacken her speed or stop or reverse, and on
a course of S.W.JW. magnetic approached
without about a quarter of a mile of the other
vessel (which was on a course of N.B. by
E.^E. magnetic) so as to bear one and a half
points on her port bow and cause risk of
collision. The giving-way vessel at about this
distance hard-a-starboarded, but gave no
signal. The keep-on vessel ported, and then
almost as one order put her engines full speed
astern and hard-a-ported, but gave no signal :
— Held, that the giving-way vessel was alone
to blame ; and that the keep-on vessel was not
to blame for not signalling, as in one sense
when she ported and hard-a-ported she was
hardly " directing " her " course " within
article 28, but was trying to run away from
a vessel which had placed her in a difficulty,
and her omission to signal in such circum-
stances could not be so strictly regarded as
if she had been "directing" her "course"
in the ordinary way of navigation; and that,
without holding that such a vessel would be
excused from signalling if that would make it
easier for the other vessel to avoid collision,
in the circumstances the omission of the keep-
on vessel to signal did not contribute to the
casualty. The Tempus, 83 L. J. P. 33;
[1913] P. 166; 109 L. T. 669; 12 Asp. M.C.
396; 29 T. L. E. 543— Evans, P.
Alteration of Course — Sounding Whistle —
Second Vessel Coming in Sight.] — In
weather more or less foggy, the steamship M.,
proceeding to an anchorage, had to starboard
her helm to clear a vessel at anchor. There
was no other vessel in sight at the time, but
directly afterwards the steam barge B. came
in sight. The M. gave no signal when she
directed her course to port under starboard
helm : — Held, that while it was only neces-
sary under article 28 of the Eules for Pre-
venting Collisions at Sea for the M. to sound
her whistle when directing her course to port
or starboard with reference to a moving vessel,
and therefore she was not wrong in omitting
to sound her whistle when she starboarded for
the anchored vessel, she ought to have sounded
it when the B. came in sight, to indicate that
her course was being directed to port. The
Megantic, 31 T. L. E. 190--Bargrave
Deane, J.
Tug Blowing Regulation Towing Signals —
No Signal by Tow.] — The steamship M., in
tow of two tugs, and with no steam on her
main engines, was proceeding up the Humber
and was about to turn in the river when she
was run into by the steamship A. It was a
dark night and the weather was hazy. The
M.'s head tug was blowing the regulation tow-
ing signals, but no whistle signals were being
sounded on the M. herself, who had only got
steam on her donkey boiler to work the
winches : — Held, that the rules of good sea-
manship did not require the M. to sound her
whistle, as to do so would be misleading to
other vessels, as it might lead them into the
belief that she had steam on her main engines ;
and, further, as she and her tugs had not
commenced to turn, although they were pre-
paring to do so, it would have been wrong for
the turning signal to have been given. The
Marmion, 29 T. L. E. 646— Bargrave
Deane, J.
Failure to Hear Fog Signals — Evidence of
Defective Look-out.] — Where in an action of
damage by collision in a fog the Judge at the
trial found that there had been a defective
look-out on the part of one of the vessels
because those on board failed to hear fog
signals sounded by the other vessel, the Court
of Appeal refused to interfere with such find-
ing. The Curran, 79 L. J. P. 83; [1910]
P. 184; 102 L. T. 640; 11 Asp. M.C. 449—
C.A.
10. Local Eules.
a. Manchester Ship Canal.
Fog — Vessel Moored — Signal.] — There is no
rule in the Manchester Ship Canal that a
vessel moored alongside one of the lie-bys in
a fog shall give any signal to indicate her
presence as a warning to other vessels ; and
the rules of good seamanship do not require
her to give a signal in the absence of circum-
stances shewing that those on board knew, or
ought to have known, that another vessel was
approaching to moor there. The City of
Liverpool, 29 T. L. E. 139— Evans, P.
b. Mersey.
See also Vol. XIII. 829, 2194.
Vessel Coming out of Dock into River.] —
The regulations for preventing collisions at sea
apply in the Mersey, but where one of two
steam vessels "crossing so as to involve risk
of collision " is a vessel coming out of dock,
it is impossible to apply article 19 before a
certain time in the course of her manoeuvres,
1505
SHIPPING.
1506
and the two vessels must navigate in accord-
ance with the rules of good seamanship
(article 29). Semble, it depends on the dis-
tance the one vessel has got from the dock
and on the distance the other vessel is from
her when there becomes " risk of collision,"
whether article 19 is applicable or not. The
Sunlight (73 L. J. P. 25 ; [1904] P. 100) con-
sidered. The Llanelly, 83 L. J. P. 37 ; [1914]
P. 40; 110 L. T. 269; 12 Asp. M.C. 486;
30 T. L. E. 154— D.
Vessel Turning in River.] — The Mersey
Rules, which consist of the International
Regulations with some modifications and
alterations, are deficient in not providing a
rule, such as exists in the Thames, prescribing
the signal to be given by a vessel turning in
the river. A mere repetition of the helm
signal, indicating that the vessel is under a
particular helm, is not a sufficient indication
to other vessels that she is turning round under
that helm. The Adriatic, 30 T. L. R. 593—
Evans, P.
Vessel being Overtaken — Close Waters —
Rule as to Keeping Course and Speed — Duty
of Following Vessel.] — The rule as to keeping
course and speed, while a perfectly good rule
in open waters, cannot always be applied in
close waters such as the Mersey, and each
case must depend on its own circumstances.
In a river like the Mersey a following vessel
must watch the vessel ahead and observe what
course she is taking with regard to other
vessels. The Wooda, 31 T. L. R. 222—
Bargrave Deane, J.
c. Tees.
Limits of River Tees.] — Although by the
Tees Conservancy by-laws the river is defined
to mean the parts of the river Tees within the
jurisdiction of the Commissioners, and the
jurisdiction of the Commissioners extends far
beyond the Fairway buoy, the river Tees itself
does not extend so far as the Fairway buoy.
The Peter Benoit, 84 L. J. P. 87 ; 31 T. L. E.
227— C.A. Affirmed, 85 L. J. P. 12; 60 S. J.
88; 32 T. L. R. 124— H.L. (E.)
Speed Over the Ground — Strict Observance.]
— Although rule 27 of the Tees by-laws pro-
vides that " whenever there is a fog no steam
vessel shall be navigated in any part of the
river at a higher rate of speed than three
statute miles per hour over the ground," the
larger type of vessels which now call at
Middlesbrough may find a difficulty in obeying
the rule at certain states of the tide, and,
having regard to the duty to other vessels to
keep steerage way, if a vessel has a right to
be under way at all and her speed is not
greater than is right under the circumstances,
the Court may consider that the vessel is not
to blame for the non-observance of the rule.
The port authority might well consider whether
the rule should prescribe speed through the
water instead of over the ground. The
Dettingen, 30 T. L. R. 589— Evans, P.
d. Tliames.
See also Vol. XIII. 830, 2195.
Bend in River — Vessel Approaching with
Tide — Duty to Blow Warning Blasts — Vessel
Rounding Bend against Tide — Speed — Good
Seamanship.] — A tug towing the plaintiffs'
barge and going with tlie tide, having stopped
just before, approached a sharp bend in Bow
Creek, river Thames, without blowing a warn-
ing blast to any vessel which might be coming
down, as was alleged to be the practice, and
the barge came into collision with defendants'
tug, which came round the bend at some speed
towing another barge : — Held, that, although
she had stopped just before and apart from
any question of practice, it was the duty under
the rules of good seamanship for the tug tow-
ing the plaintiffs' barge to blow a warning,
blast or biasts on approaching the bend, and
not having done so she was to blame for the
collision; and that the defendants' tug, which
rounded the bend against the tide, was also to
blame for going too fast under the circum-
stances. The Kennet, 81 L. J. P. 82; [1912]
P. 114; 105 L. T. 880; 12 Asp. M.C. 120
— D.
Steamship Aground in the Thames —
Signals.] — A vessel jDroceeding up the Thames
grounded. She sounded four short blasts on
her whistle to signify that she was not under
command, but, before she could put up the
lights required by article 30 of the Thames
Rules she was run into by a steamship which
had been coming up the river about a quarter
of a mile astern of her. In a damage action, —
Held, that the steamship which got aground
was not to blame for not putting up the lights
required by article 30, as that rule was not
applicable and there was not sufficient time in
which to put them up before the collision, and
she had sounded a four-blast signal signifying
that she was not under command ; and further,
that the overtaking ship was alone to blame
for not keeping out of the way and for bad
look-out. The Bromsgrove, 82 L. J. P. 2;
[1912] P. 182; 106 L. T. 815— Bargrave
Deane, J.
Observations on the want of a signal to be
made by vessels temporarily aground in the
Thames. lb.
Sound Signals — " Steam vessel . . . turning
round."] — When a steam vessel is turning
round in the river Thames, after having given
the appropriate signal of four short blasts
under rule 40 of the Thames By-Laws, that
signal supersedes for the time other signals as
to the orders given to the engines, so that she
is not required while going ahead and astern
to give a signal of three short blasts under
rule 42 when lier engines are put full speed
astern The Harberton, 83 L. J. P. 20;
[1913] P. 149 ; 108 L. T. 735 ; 12 Asp. M.C.
342; 29 T. L. R. 490— Evans, P.
The defendants' steam vessel, being about
to turn round at night time in tlic river
Thames, sounded the appropriate signals
of four short blasts followed by one short
blast, in accordance with rule 23 of the Port
48
1507
SHIPPING.
1508
of London Kiver By-laws, 1914, to indicate
that she was going to turn with her head
to starboard, and these signals were repeated
when the lights of the plaintiffs' steam vessel
were seen coming down the river. In the
•course of turning the engines of the defen-
dants' vessel were put full speed astern, and
she moved bodily astern about 370 feet, but
she did not sound the three short blasts
signals, under rule 27, to indicate that her
■engines were working astern. The two
vessels came into collision : — Held, that the
turning signal was not sufificient indication,
particularly at night, that a vessel was moving
bodily astern to a substantial extent, and that
while the plaintiffs' vessel was to blame for
bad look-out and failure to stop and reverse
her engines, the defendants' vessel was also
to blame, as the neglect to sound the three
short blasts was the primary cause of the
collision. The Harberton (83 L. J. P. 20;
[1913] P. 149) distinguished. The Ancona,
84 L. J. P. 183; [1915] P. 200— Bargrave
Deane, J.
"Master" — "Shall be on the bridge."] —
Article 14 of the Thames By-laws, 1898, w^hich
provides that " the master of every steam
vessel navigating the river shall be . . . on
the bridge," must be construed with regard
to the definition of "master" in article 4
as "the owner, master or other person . . .
having or taking the command, charge or
management of the vessel." And when a
vessel is in charge of a compulsory pilot,
article 14 does not forbid the voluntary but
temporary absence of the master of the vessel
from the bridge, when another competent
of&cer is stationed there, and there are no
special circumstances of difficulty, and no
special matters within his knowledge of which
he ought to be ready to inform the pilot. The
Urnsinga, 80 L. J. P. 90; [1911] P. 234;
27 T. L. E. 439— Evans, P.
Steam Vessel Running Aground — Anchor
Lights — Whistle Signals.] — As regards the
Thames Eules, 1898— article 30 (by which a
vessel of a certain size when at anchor, and
a similar vessel if aground in or near a fair-
way, is required to exhibit two white lights)
applies to vessels anchored or on the ground
permanently near the fairway, and not to a
vessel which is temporarily aground. Article 40
(which directs that, when a steam vessel in
other than certain circumstances is turning
round or for any reason is not under command
and cannot get out of the way of an approach-
ing vessel, she shall signify the same by four
blasts) applies to a steamer with gear out of
order or engines broken down or something of
that sort, and not to a steamer which has
temporarily run aground. The Bromsgrove,
82 L. J. P. 2: [1912] P. 182; 106 L. T. 815;
12 Asp. M.C. 196— Bargrave Deane, J.
Semhle, vessels in the Thames are not bound
to carry anchor lights ready lighted on deck
in case they run aground, and therefore anchor
lights cannot be put up in a moment on a
vessel which runs aground. Ih.
Meeting Vessels.] — Article 47 of the Thames
By-laws is not confined to the case of steam
vessels meeting steam vessels rounding the
points mentioned in the article. It applies to
the case of a steam vessel meeting a sailing
vessel. The Ursula Fischer, 29 T. L. E. 529
— Evans, P.
Custom in Thames to Keep to North Side
Going up and Vice Versa — Port to Port Rule.]
— On August 30, 1912, there was no rule in
the Thames that steamships should keep to
the north side going up, and the only rule was
that if there was a risk of collision ships should
go port to port — if there was no risk there was
no rule to prohibit starboard to starboard.
" Karamea " {Owners) v. " Marie Gartz "
(Oivners), 30 T. L. E. 702— H.L. (E.)
Decision of the Court of Appeal (30 T. L. E.
88) affirmed (Lord Parmoor dissenting on the
facts). lb.
Ambiguity of River Rule — " Light or
lights" — "Vessel of 150 feet or upwards."]
— The part of article 30 of the Thames Eules,
1898, which provides, " A vessel of 150 feet
or upwards aground in or near a fairway shall
carry the above light or lights," is not
ambiguous as regards a vessel of above 150
feet, and such a vessel must carry the two
lights. And, as the Thames rule applies to
her, article 11 of the Collision Eegulations,
1910, which would interfere with that rule,
does not apply to her. The Bitinia, 82 L. J.
P. 5 ; 29 T. L. E. 99— C.A. Affirming, [1912]
P. 186; 107 L. T. 208; 12 Asp. M.C. 237—
Bargrave Deane, J.
11. Practice.
a. Time within which Action must be Brought.
Extension of Time.] — Circumstances in
which the Court, in the exercise of its dis-
cretion, allowed an action for damages to a
ship to proceed although more than two years
had elapsed from the date of the collision.
The Cambric, 29 T. L. E. 69— Evans, P.
ActionforLossofLife — Limitation of Time —
Claim against Vessel.] — The time for bringing
an action for damages for loss of life under the
Fatal Accidents Act, 1846, limited by section 3
of that Act to one year, is extended to two
years under section 8 of the Maritime Conven-
tions Act, 1911, when the action is to enforce
a claim or lien against a vessel or her owners.
The Caliph, 82 L. J. P. 27; [1912] P. 213;
107 L. T. 274; 12 Asp. M.C. 244; 28 T. L. E.
597 — Bargrave Deane, J.
b. Pleadings.
General Allegation of Negligence — Applica-
tion for Particulars — Failure to Give Particu-
lars — Application Struck out.] — A vessel at
anchor was run into and damaged by a vessel
in motion. In an action for damage, the
owners of the vessel at anchor delivered a
statement of claim in which they alleged that
those on the vessel colliding with them did
not take proper and seamanlike measures to
keep clear. A summons for particulars of the
measures which should have been taken was
1509
SHIPPING.
1510
dismissed by the Registrar. The defendants
appealed to the Judge in chambers. On ap-
peal,— Held, that as the plaintiffs could give
no particulars the allegation should be struck
out, the Judge at the trial having power to
deal with anv negligence proved but not
pleaded. The Kanaiolia, 108 L. T. 433;
12 Asp. M.C. 817— Bargrave Deane, J.
Preliminary Act — Contents.] — The intention
of paragraph 11 of the preliminary act in a
collision case is that the combinations of lights,
subsequent to those described in paragraph 10
as first seen, should be stated; so that, after
stating in paragraph 10 that the masthead and
both side lights of a steam vessel were first
seen, the party should state in paragraph 11
that afterwards the masthead and red lights
only were seen, and then the masthead and
green only, if this was the case; and in such
circumstances it is not proper to answer in
paragraph 11 that no other lights were seen.
The Moynca, 81 L. J. P. 92; [1912] P. 147;
106 L. T. 349 ; 12 Asp. M.C. 164 ; 28 T. L. R.
154— Evans, P.
Equivalent to Admissions of Fact.] —
Per Fletcher Moulton, L.J. : Statements in a
preliminary act are not mere pleading allega-
tions, but amount to admissions of fact which
the party making them ought not to be allowed
to depart from except under most special cir-
cumstances. The Seacombe ; The Devonshire,
81 L. J. P. 36; [1912] P. 21; 106 L. T. 241;
56 S. J. 140; 28 T. L. E. 107— C.A.
In damage actions resulting from collisions
in rivers in which the colliding vessels are on
a fixed course as opposed to a course which has
to be constantly changed, either the magnetic
or the true course, and not the compass course,
should be pleaded in the preliminary act.
The Rievaulx Abbey, 102 L. T. 864; 11 Asp.
M.C. 427— Evans, P.
Action for Damage — " Vessel " — Land-
ing Stage — Repeal of Rule — Effect of Repeal
on Practice under Rule.] — A floating landing
stage permanently fixed to a river side except
in so far as it is capable of rising and falling
with the tide is not a " vessel " within the
meaning of the Rules of the Supreme Court,
1883, Order XIX. rule 28; and therefore, in
an action for damage by collision between a
steamship and such a landing stage, the parties
cannot, under that rule, be ordered to file pre-
liminary acts. The Craiqhall, 79 L. J. P. 73;
[1910] 'p. 207; 103 L. T. 236; 11 Asp. M.C.
419— C.A.
Even assuming that under the Rules of the
High Court of Admiralty, 1859, a practice
existed according to which preliminary acts
might be ordered in cases of collision other
than collision between vessels, inasmuch as
these Rules have been repealed by the Rules
of the Supreme Court, 1833, Introduction and
Appendix 0 (22), that practice has also been
repealed and has not been continued in force
by Order LXXII. rule 2 of the Rules of 1883.
Observations in Busfield, In re; Whaley v.
Busfield (55 L. J. Ch. 467; 32 Ch. D. 123),
applied. 76.
c. Mode of Trial.
Action for Loss of Life — Action in Rem —
Admission of Liability — Trial by Judge and
Jury — Discretion.] — An ac;tion in rem having
been brought against a ship to recover damages
for loss of life caused by a collision at sea,
the owners filed an admission of liability,
praying a reference to the Registrar and Mer-
chants to assess the damages. The plaintiffs
took out a summons for an order giving them
leave to enter interlocutory judgment and to
have the damages assessed by a sheriff's jury.
The Judge made an order that the action
should be tried by a Judge with a jury in the
Admiralty Division : — Held, that the order
was within the discretion of the Judge, and
was one with which the Court of Appeal ought
not to interfere. The Kwasind, 84 L. J. P.
102— C.A.
d. Bail.
Excessive Bail — Bail Fees.] — Where exces-
sive bail had been demanded by the plaintiffs
in a collision action, the Court, on the applica-
tion of the defendants, ordered the plaintiffs to
pay the fees in respect of the bail in excess of
the proper amount of bail that should have
been demanded. The Princess Marie Jose,
109 L. T. 326; 12 Asp. M.C. 360; 29 T. L. R.
678 — Bargrave Deane, J.
e. Discovery.
Inspection of Books before Trial — Collision
— Sunken Lightship — Value of Lightship.] —
The plaintiffs' lightship having been sunk in
collision with the defendants' steamship, the
plaintiffs brought an action in rem against the
defendants for damage. The defendants ad-
mitted liability, and the only question was as
to the amount of the damage. The action
was referred to the District Registrar for trial.
While the reference was pending, the defen-
dants, with a view to ascertaining the value of
the lightship at the date of the collision, took
out a summons under Order XXXI. rule 18 (1)
for inspection of the plaintiffs' books shewing
the initial cost and annual depreciation in
value of the lightship. The plaintiffs resisted
the application on the ground that it would be
inconsistent with the practice in the Admiralty
Division to allow inspection of the books before
they were produced at the reference. The
District Registrar refused the application, and
his decision was affirmed by Bargrave Deane,
J. : — Held, by the Court of Appeal, that the
defendants were entitled to the inspection
asked for. The Pacuare, 81 L. J. P. 143;
[1912] P. 179; 107 L. T. 252; 12 Asp. M.C.
222— C.A.
f. Costs.
See also Vol. XIII. 855, 2201.
Denial of Negligence — Alternative Defence
of Compulsory Pilotage — Single Issue — Discre-
tion of Court.] — In an action of damage by
collision the defendants pleaded that the colli-
sion was an inevitable accident, and alter-
natively that if it was caused or contributed
to by any negligence on board their vessel the
negligence was that of a compulsory pilot.
The Court of first instance held that the
collision was due to the negligence of the
1511
SHIPPING.
1512
pilot, aud that the defendants ought not to
pay costs ; but that in the circumstances of the
case there ought to be no costs. The defen-
dants, by leave, appealed on the question of
costs, and contended that they were entitled
to have the action dismissed with costs : —
Held, that the Court could not lay down any
general rule beyond that already laid down —
that if there is but one issue in the action the
successful party is prima facie entitled to costs,
and that the Judge must consider the special
circumstances of each case and exercise his
discretion accordingly ; that as the defendants
had denied negligence on the part of any one
there was not a single issue in the case ; and
that the Judge in the Court of first instance
had exercised his discretion, which the Court
of Appeal could not review. The Ophelia,
83 L. J. P. 65; [1914] P. 46; 110 L. T. 329;
12 Asp. M.C. 434; 30 T. L. K. 61— C. A.
XV. PASSENGEE SHIPS.
See also Vol. XIII. 866, 2202.
Steamer Plying on Voyage with Passengers
on Inland Waters — Certificate of Survey —
"Vessel used in navigation."] — By sec-
tion 271, sub-section 1 (b) of the Merchant
Shipping Act, 1894, every passenger steamer
carrying more than twelve passengers " shall
not ply or proceed to sea or on any voyage or
excursion with any passengers on board "
without a Board of Trade certificate as to
survey. By section 267 a passenger steamer
is a steamship. By section 742 a ship includes
a " vessel used in navigation not propelled by
oars." A launch, which carried more than
twelve passengers and was not propelled by
oars, plied for hire along a river and a canal
up to, but not beyond, some lock gates, and
back again. Along the same water sea-going
vessels were taken to points beyond the lock
gates : — Held, that as the launch was used in
waters upon which, in ordinary parlance, navi-
gation could reasonably be said to take place,
it was a " vessel used in navigation " and a
" ship " within section 742, and therefore was
subject to the provisions requiring a certificate
under section 271, sub-section 1 (b). Reg. v.
Southport {Mayor) and Morris (62 L. J. M.C.
47; [1893] 1 Q.B. 359, sub nom. Southport
Corporation v. Morriss) considered. Weeks v.
Ross, 82 L. J. K.B. 925; [1913] 2 K.B. 229;
108 L. T. 423 ; 77 J. P. 182 ; 12 Asp. M.C. 307 ;
23 Cox C.C. 3.37; 29 T. L. E. 369— D.
Passenger's Contract Ticket — Form Ap-
proved by Board of Trade — Addition of Clause
not Approved by Board of Trade — Exemption
of Shipowner from Liability for Negligence.]
— The defendants issued in respect of a passage
across the Atlantic a steerage passenger's
contract ticket, which contained on the face
thereof all that was contained in the form
of steerage passenger's contract ticket then
recently approved by the Board of Trade.
That form, which was in substance an un-
qualified contract of carriage from the port of
embarkation to the port of arrival in a parti-
cular ship, included a direction that a contract
ticket should not contain on the face thereof
any condition, stipulation, or exception not
contained in tliat form. The contract ticket
issued by the defendants also contained the
following additions, which had not been
approved by the Board of Trade : At the foot
of the ticket were printed the words " See
back," and on the back were printed, under
the heading " Notice to Passengers," certain
conditions, one of which purported to exempt
the defendants from liability for loss or
damage even though caused by negligence of
the defendants' servants. The ship in which
the passenger was being carried came into
collision with an iceberg and foundered in
consequence of the negligence of the defen-
dants' servants, and the passenger was
drowned. In an action under the Fatal Acci-
dents Act, 1846, to recover damages in respect
of the death of the passenger, — Held
(Buckley, L.J., dissenting), that the contract
ticket was not in a form approved by the
Board of Trade within the meaning of sec-
tion 320, sub-section 2 of the Merchant
Shipping Act, 1894, and that that sub-section
precluded the defendants from relying on the
condition exempting them from liability.
Ryan v. Oceanic Steam Navigation Co. ;
O'Connell v. Same; Scanlon v. Same; O'Brien
V. Same, 83 L. J. K.B. 1553; [1914] 3 K.B.
731 ; 110 L. T. 641 ; 12 Asp. M.C. 466 ; 58 S. J.
303; 30 T. L. E. 302— C.A.
XVI. MAEINE OFFICE
SUPEEINTENDENT.
Determination of Disputes.] — A deputy-
superintendent, duly appointed, has the same
power of hearing and determining a dispute
between the owner of a fishing boat and a
seaman of the boat, under section 387, sub-
section 1 of the Merchant Shipping Act, 1894,
with regard to the matters therein specified,
as are thereby conferred on a superintendent.
Mayhem v. Tripp, 83 L. J. K.B. 778 ; [1914]
2 K.B. 455 ; 110 L. T. 1002 ; 12 Asp. M.C. 505
— D.
XVII. POETS, HAEBOUES AND DOCKS.
1. Ports.
See also Vol. XIII. 882, 2208.
Port of London — Registration of Craft —
Sailing Barge — "All lighters, barges, and
other like craft."] — A sailing barge trading
regularly between London and a place outside
the limits of the Port of London as described
in the Fifth Schedule to the Port of London
Act, 1908, is a "barge" within the words
" all lighters, barges, and other like craft "
in section 11, sub-section 2 (/) of that Act,
and must therefore, under that section and the
Port of London (Eegistration of Eiver Craft)
By-laws, 1910, be registered with the Port of
London Authority as a "barge," notwith-
standing that it has also been registered as
a "ship" under the Merchant Shipping Act,
1894. Smeed, Dean d Co. v. Port of London
Authority, 82 L. J. K.B. 323; [1913] 1 K.B.
226; 108 L. T. 171; 12 Asp. M.C. 297;
57 S. J. 172; 29 T. L. E. 122— C.A.
Judgment of Hamilton, J. (81 L. J. K.B.
1034; [1912] 2 K.B. 685), affirmed. lb.
1513
SHIPPING.
1514
Port Rates — Exemption — " Goods imported
for transhipment only " — Goods Imported for
Conveyance by Sea to any other Port Coast-
wise— Goods Transhipped in Port of London
for Rochester.] — Goods imported from beyond
the seas into the Port of London for tranship-
ment only, and which are duly certified as
intended for transhipment, and which are in
fact transhipped into sailinf^ barges and con-
veyed down the river Thames to the Port of
Rochester on the Med way, are, under sec-
tion 13 of the Port of London Act, 1908, and
section 9 of the Port of London (Port Rates
on Goods) Order, 1910, exempt from the port
rates imposed by the Port of London Autho-
rity, inasmuch as they are goods imported
from beyond the seas for the purpose of being
conveyed by sea only to another port coast-
wise, the definition of " coastwise " in sub-
section 5 of section 13 of the Port of London
Act, 1908, not being imported into section 9
of the Provisional Order, 1910, and the term
" conveyed by sea only " being used in contra-
distinction to conveyance by land and not in
contradistinction to conveyance by river.
British Oil and Cake Mills v. Port of London
Authority, 83 L. J. K.B. 1777: [1914] 3 K.B.
1201; lil L. T. 1019; 12 Asp. M.C. 548;
19 Com. Cas. 420; 30 T. L. R. 667— C.A.
Affirmed, 84 L. J. K.B. 1849; [1915] A.C. 993;
59 S. J. 577; 31 T. L. R. 511— H.L. (E.)
Exemption — " Goods imported for tran-
shipment only" — Oil Imported in Bulk by
Particular Steamer — Oil Certified for Tranship-
ment— Oil Mixed with other Oil — Identification
of Oil — Goods "shipped again as soon as
practicable."] — Under section 13 of the Port
of London Act, 1908, and section 9 of the Port
of London (Port Rates on Goods) Order, 1910,
" goods imported for transhipment only " into
the Port of London are exempt from port rates
levied by the Port Authority. The expression
" goods imported for transhipment only " is
defined in section 9 of the Provisional Order,
1910, as meaning goods imported from beyond
the seas or coastwise for the purpose of being
conveyed by sea only to any other port, which
are certified and proved within a certain
period of the report of the ship at the Custom
House to have been intended for tranship-
ment, and which shall have been shipped
again as soon as practicable for conveyance
by sea to some other port. The certificate
stating that the goods are intended for tran-
shipment must contain particulars of the
description, quantity, destination, route, and
mode of conveyance of such goods. The
certificate stating that the goods have been
shipped again as soon as practicable must con-
tain such particulars as the Port Authority
may require. The plaintiffs imported oil in
bulk from abroad in ocean tank steamers.
That portion of the oil which was intended for
transhipment to various ports was discharged
into tanks in London, some of the oil being
discharged into a tank that was empty, some
of the oil into a tank containing oil brought
by previous steamers, and also intended for
transhipment, while some of the oil intended
for transhipment was discharged into a tank
containing oil intended for distribution in the
London district and not intended for tranship-
ment. The plaintiffs delivered to the defen-
dants inwards port rates exemption certificates
stating that the oil was intended for tranship-
ment, and giving the particulars required by
statute as to the tons of oil intended to be
transhipped and its destination. One of the
certificates, under the head of " Name of
Export Steamer," gave the names of three
steamers bracketed together, as it was not
known which of the steamers w"ould be avail-
able. The plaintiffs delivered to the
defendants outwards port rates exemption
certificates in respect of the oil transhipped
and claimed exemption from port rates
thereon. The defendants refused to admit the
right of the plaintiffs to exemption in respect
of the oil intended for transhipment upon the
ground that the oil lost its identity upon being
discharged into the tanks ; that it was
impossible to identify the oil transhipped with
the oil set out in the inwards certificate ; that
the name of the export steamer was not
sufficiently stated, and that the oil had not
been transhipped as soon as practicable : —
Held, that the oil intended for transhipment
did not cease to be entitled to exemption
through being discharged into tanks contain-
ing other oil, even though it was mixed with
oil not intended for transhipment, provided
that the plaintiffs could show that the
quantity of oil intended for transhipment had
in fact been transhipped, and that it was not
necessary to set out specifically the name of
the export vessel in the inwards certificate.
Held, further, that in order to comply with
the words " shipped again as soon as practic-
able " in section 9 of the Provisional Order,
1910, the transhipment must be carried out
as soon as practicable, having regard to the
ordinary course of navigation and the facilities
of procuring a ship, and that the words did
not refer to the convenience of the merchant's
business. Anglo-American Oil Co. v. Port of
London Authority, 83 L. J. K.B. 125; [1914]
1 K.B. 14; 109 L. T. 862; 19 Com. Cas. 23;
12 Asp. M.C. 419 ; 30 T. L. R. 14— Pickford, J.
2. Harbours axd Docks.
See also Vol. XIII. 903, 2210, 2218.
Duty of Harbour Trustees — Buoying Navi-
gable Channel — Liability for Buoy being Dis-
placed— Notice Disclaiming Responsibility.] —
The trustees of a natural harbour, where
pilotage was not compulsory, placed a buoy
to mark a shoal close to the navigable channel.
Owing to the insufficient weight of the sinker,
the buoy was liable to be dragged out of
position by vessels using the harbour, and in
consequence of this risk it was the practice
of the harbour master to verify the position of
the buoy each morning. The trustees exhibited
.1 notice on shore to the ofTect that " masters
of vessels . . . making use of the buoys and
moorings ... do so at their own risk." A
ship entering the harbour at night, with the
leave of the harbour master and in charge of
a local pilot, grounded on the shoal, owing
to the buoy having been displaced after its
position had been checked the previous
morning. It was not proved that the pilot
1515
SHIPPING.
1516
knew either that the buoy was liable to be
displaced, or that it had in fact been displaced
on that occasion. In an action of damages
by the shipowners against the trustees, —
Held, first, that, although the trustees of a
natural harbour were under no obligation to
mark the navigable channel by means of
buoys, yet, if they chose to do eo, they were
bound to exercise reasonable care to insure
that the buoys should be kept in position, and
that, in the circumstances, the trustees had
failed in this duty ; secondly, that the notice
disclaiming responsibility did not relieve them
of their liability for this failure ; and thirdly,
that while the pursuer's claim would have
been barred if the pilot had been guilty of
contributory fault, the pilot, in the circum-
stances, was not to blame in respect that,
even if he had known that the buoy was
occasionally displaced, be was entitled to
assume, in the absence of express warning,
that it was in its proper place, and damages
awarded. Aktiesehkabet Dampskihet Forto
V. Orkney Harbour Commissioners, [1915]
S. C. 743— Ct. of Sess.
Observations (per Lord Salvesen) on the
duties of harbour trustees with regard to
making the navigation of a natural harbour
reasonably safe. 76.
Duty to Provide Labour for Loading Cargo.]
— See MiUigan A Co. v. Ayr Harbour Trustees,
ante, col. 146-1.
Dockyard Port — Navigable Water — Rights
of Public — Rights Incidental to Navigation —
Right to Moor Coal Hulk— Dockyard Port of
Portland.] — A coal merchant has not, as inci-
dental to the right which he possesses in
common with all other members of the public
of navigating in a public navigable water,
a right to moor permanently in such water
a coal hulk for the purpose of supplying coal
to steamers navigating there. Denaby and
Cadeby Main Collieries v. Anson, 80 L. J.
K.B. 320; [1911] 1 K.B. 171: 103 L. T. 349;
11 Asp. M.C. 471; 54 S. J. 748; 26 T. L. E.
667— C. A.
Where such navigable water is a "dockyard
port " within the meaning of the Dockyard
Ports Regulation Act, 1865, as to which an
Order in Council has been made under the
Act placing merchants and other private
vessels under the direction of a harbour
master, and conferring no right to moor a
coal hulk in the harbour, a coal merchant who
moors such a hulk in the harbour is bound to
remove it on being required to do so by the
harbour master. Rex v. Russell (5 L.J. (o.s.)
M.C. 80; 6 B. & C. 566) discussed. 7b.
Preferential Right to Occupy Berth —
Wrongful Action of Other Ship in Occupying
Berth — Damages.] — A shipping company had
by agreement with a dock company a pre-
ferential right to occupy a certain berth on
"Wednesday and Saturday in each week and
were to use no other berth in the particular
port. The agreement {inter alia) provided
that in the event of any accident beyond the
control of the dock company causing loss or
delay to the shipping company the latter's
remedy was to be the right to use some other
berth, and that the dock company should not
be liable to make good or pay compensation
for any such loss or delay. On Saturday,
October 28, 1911, when the shipping com-
pany's steamer, the Portia, arrived, the
particular berth where she should have gone
was occupied by a Dutch company's steamer
which had proceeded to and remained at that
berth against the orders of the dock company.
By reason of shortness of water the Dutch
steamer could not be removed to allow the
Portia to occupy the berth. The Portia, by
the directions of the dock company, went
into an inner dock, and was detained there
several days owing to shortness of water, and
in consequence she lost a complete round
voyage. The shipping company sued the dock
company for damages for the delay caused
to the Portia, and the dock company sued the
Dutch company to recover any damages they
might be called upon to pay to the shipping
company : — Held, first, that the dock company
were liable in damages to the shipping com-
pany inasmuch as by the agreement the dock
company had contracted to use, and they had
not in fact used^ their best endeavours to
ensure that the shipping company should have
the use of the berth on the particular day, and
further that the wrongful occupation of the
berth by the Dutch steamer was not an " acci-
dent beyond the control of the dock company "
within the meaning of the expression in the
agreement, as they had not done their utmost
to prevent the Dutch steamer occupying the
berth ; secondly, that the Dutch company
having committed a trespass were liable to
the dock company in damages, but as the
Portia did not go into the inner dock on the
orders of the Dutch company's captain, that
company was not liable in respect of the
whole of the detention of the Portia ; and
thirdly, that the Dutch company were not
liable to the dock company in respect of the
latter's costs in defending the action against
them by the shipping company, inasmuch as
it was not reasonable for the dock company
to defend that action. South Wales and
Liverpool Steamsliip Co. v. NeviU's Dock Co.,
108 L. T. 568; 18 Com. Cas. 124; 12 Asp.
M.C. 328; 29 T. L. E. 301— Scrutton, J.
"Dock dues" — Construction of Charter-
party. ^ — A charterparty provided that, " if the
cargo or any part thereof is discharged in one
of the docks in the Eiver Thames, each con-
signee is to pay two-thirds of the dock dues
payable in respect of the space occupied by
his portion of the cargo to be discharged in
such dock " : — Held, that this provision meant
that all proper charges which could be and
were imposed by the dock authority in respect
of entrance into and use of the dock by the
vessel were included in the words " dock
dues," and therefore these words included pay-
ments charged by the Port of London
Authority as and for rent. The Katherine,
30 T. L. E. 52— D.
Cnarges — Warehouse Rates and Rents —
Prize Cargoes — Proposed Higher Rates — Right
to Differentiate.] — By the Bristol Docks Acts
tlic Bristol Corporation acquired certain docks
and were empowered to charge reasonable
1517
SHIPPING.
1518
warehouse rates and rents, the Act of 1881
providing by section 8 that all rates on the
same description of articles should be charged
without partiality and without regard to the
person to whom they belonged. The Acts
incorporated the Harbours, Docks, and Piers
Clauses Act, 1847, which by section 30 makes
it illegal for the Corporation to differentiate
their warehouse rates and rents as between
various owners or persons interested in
cargoes : — Held, that each of the above pro-
visions precluded the Corporation from charg-
ing higher warehouse rates and rents in the
case of prize grain cargoes taken into store
under the order of the Board of Trade or the
Admiralty Marshal than in respect of the
same description of goods belonging to other
persons. The Clarissa Radcliffe, 31 T. L. E.
98— Evans, P.
Weighing and Measuring Goods — Rights of
Port of London Authority in Surrey Com-
mercial Dock,] — Section 81 of the Harbours,
Docks, and Piers Clauses Act, 1847, provides
that " Where under the special Act the under-
takers shall have the appointment of meters
and weighers, the undertakers may appoint
and license a sufficient number of persons to
be meters and weighers within the limits of
the harbour, dock, and pier, and remove any
such persons at their pleasure, and may make
regulations for their government, and fix
reasonable rates to be paid, or other remunera-
tion to be made to them for weighing and
measuring goods." Section 82 provides that
" When a sufficient number of meters and
weighers have been appointed by the under-
takers, under the powers of this and the
special Act, the master of any vessel, or the
owner of any goods shipped, unshipped, or
delivered within or upon the harbour or dock
or pier, shall not employ any person other
than a weigher or meter licensed by the under-
takers, or appointed by the Commissioners of
Her Majesty's Customs, to weigh or measure
the same," under a penalty not exceeding five
pounds, and it was also declared that the
weighing or measurement of any such goods
by a person other than a meter or weigher duly
licensed or appointed should be deemed illegal.
Under the terms of the special Act contained
in section 115 of the Surrey Commercial Dock
Act, 1864, and section 3 of the Port of London
Act, 1908, the plaintiffs have the right to
appoint and license meters and weighers
within the limits of the Surrey Commercial
Docks. The Surrey Commercial Dock Co. and
the plaintiffs have had persons described as
grain weighers, some on their permanent staff
and some temporarily employed, who in fact
weigh grain, but no special regulations for
their government have been made, and the
weighers have been usually employed when
the dock performs the operation of discharg-
ing. No special rate has been fixed and
published by the Port Authority, as required
by section 113 of the Surrey Commercial Dock
Act, 1864, for weighing a cargo not worked
by the plaintiffs. In 1904 the T. Line of
steamers entered into an agreement with the
Surrey Commercial Dock Co. for the hire of
berths and quay space at the Surrey Com-
mercial Docks. Under that agreement they
brought into the Surrey Docks hopper elevators
which were used in discharging grain from
vessels in the docks, and which also weighed
the grain. In 1908 the defendants, who had
acquired the T. Line, entered into an agree-
ment with the Surrey Commercial Dock Co.
by which the berths and quay space in the
Surrey Docks were let to them for three years.
Under that agreement the defendants were
entitled to use their elevators for discharging
and weighing cargoes of grain from vessels
in the docks. The Surrey Commercial Docks
were transferred to the plaintiffs, the Port of
London Authority, in 1909. On the expiration
of the above-mentioned agreement at the end
of 1910 a dispute arose, the plaintiffs claiming
that they had the sole right of discharging
ships in the Surrey Commercial Docks. The
plaintiffs eventually brought this action, in
which they claimed a declaration that they
had the sole right of weighing and measuring
goods shipped, unshipped, or delivered in the
Surrey Commercial Docks and of providing
the machines for weighing, and also an
injunction to restrain the defendants from
weighing and measuring any goods shipped,
unshipped, or delivered within the docks, and
from using their elevators in the docks : —
Held, that the plaintiffs on fixing, with the
proper formalities, rates to be paid for weigh-
ing have the sole right of weighing and
measuring goods shipped or unshipped in the
Surrey Commercial Docks, but that they have
not the sole right of providing weighing
machines for such weighing. Port of London
Authority v. Cairn Line. 82 L. J. K.B. 340;
[1913] 1 K.B. 497: 108 L. T. 217; 18 Com.
Cas. 72; 12 Asp. M.C. 293: 29 T. L. E. 229—
Scrutton, J.
Unevenness of Block Caps — Damage to Ship
— Exemption in Contract from Liability
for Damage — Liability of Dock Owner.] — A
contract for the use of a graving dock by a
ship embodied the graving dock regulations of
the defendants, the owners of the dock.
Clause 9 of the regulations provided that "The
owner of a vessel using the graving dock must
do so at his own risk, it being hereby expressly
provided that the company are not to be
responsible for any accident, or damage, to a
vessel going into, or out of, or whilst in the
graving dock, whatever may be the nature of
such accident, or damage, or howsoever aris-
ing." The regulations also provided that the
defendants would supply block caps, subject
to the usual charges. The ship sustained
bottom damage while in the graving dock,
owing to the unevenness of the block caps
supplied by the defendants : — Held, that by
reason of clause 9 the defendants were exempt
from liability for the damage sustained by the
ship. Trovers .f Sons, Lim. v. Cooper
(83 L. J. K.B. 1787; [1915] 1 K.B. 73) fol-
lowed. Pymaji Steamship Co. v. Hull and
Barusley Raihcay, 84 L. J. K.B. 1235; [1915]
2 K.B. 729; 112 L. T. 1103; 20 Com. Cas.
259; 31 T. L. E. 243— C. A.
Judgment of Bailhache, J. (83 L. J. K.B.
1321 : [1914] 2 K.B. 788). affirmed. 76.
Overhang — Too Few Blocks — Unusual Con-
struction— Duty of Shipowners.] — While in
1519
SHIPPING.
1520
the defendants' dry dock the plaintiffs' steam-
ship, which had a forward overhang of about
62 ft., fell to port and damaged her side
owing to there being an insufficient number
of blocks at the forward end. In an action
by the plaintiffs against the defendants for
negligence the defendants contended that the
blocks would have been sufficient for a
normally constructed vessel of the same size,
but that the vessel was of unusual construction
and the plaintiffs ought to have warned them
of the hidden danger : — Held, that the over-
hang of the vessel did not make her a vessel
of unusual construction, and the plaintiffs were
entitled to succeed. Semble, if a vessel is of
unusual construction it is the duty of the ship-
owners to inform the dock owners, and it is
not the duty of the dock owners to make
enquiries. The Lancastrian, 32 T. L. R. 117
— Evans, P.
XVIII. WEECKS.
Damage to Oyster Beds — Owner Placing
Wrecked Vessel Ashore — Harbour Master —
Negligent Orders — Liability of Conservators.]
— A vessel, wrecked in a navigable river, was
raised by her owner (one of the defendants)
and was placed on an oyster fishery ashore,
doing damage to the oysters. The harbour
master, servant of the other defendants, the
conservators of the river, was in charge of the
operations, the defendant owner obeying his
orders, and the harbour master was negligent
in giving such orders, as he ought to have
known of the oyster fishery. Notice that the
wrecked vessel was on the fishery was given
to the defendant owner, who was in possession
of the vessel, and to the harbour master;
but the vessel remained there for a consider-
able time under repair, doing further damage.
In an action by the plaintiff, lessee of the
oyster fishery, to recover damages for negli-
gence,— Held, that the conservators were liable
for the whole of the damage, as the harbour
master was negligent in placing the wrecked
vessel on the oyster beds, and it was his dutj'
to have had her moved from there ; but that
the owner was not liable, as he placed her
there by the orders of the harbour master,
who had authority to give such orders, and
that he had no right without further orders
from the harbour master, whose responsibility
still continued, either to remove the wrecked
vessel from there or to place her elsewhere.
The Bien, 80 L. J. P. 59; [1911] P. 40;
104 L. T. 42; 11 Asp. M.C. 558; 27 T. L. R.
9 — Bargrave Deane, J.
Sunken Vessel — Obstruction to Navigation
of Mersey — Right of Mersey Docks Board to
Destroy Vessel — Conditions Precedent.] — Sec-
tion 11 of the Mersey Docks Act, 1874, as
amended by section 29 of the Mersey Docks
and Harbour Board Act, 1889, enables the
Mersey Docks and Harbour Board to raise,
destroy, or remove any wrecks of vessels, or
any vessels sunk or stranded in any dock or
elsewhere within the port of Liverpool which
are " in the judgment of tlie marine surveyor
... of the Board . . . such judgment being
recorded in writing signed by him and
deposited with the secretary of the Board,"
an obstruction to safe and convenient naviga-
tion : — Held, that it is not a condition prece-
dent to the exercise by the Board of their
statutory power to raise, destroy, or remove
a sunken or stranded vessel that the judgment
of the marine surveyor that the vessel is an
obstruction to safe navigation should first have
been recorded in writing and deposited with
the secretary of the Board. It is sufficient to
enable the Board to exercise their powers that
the marine surveyor honestly comes to the
conclusion that the vessel must be raised,
destroyed, or removed, and that within a
reasonable time after the forming of his judg-
ment to that effect he puts it in writing and
deposits it with the secretary of the Board.
Jones V. Mersey Docks and Harbour Board.
108 L. T. 722; 18 Com. Gas. 163; 12 Asp.
M.C. 335; 29 T. L. R. 468— Scrutton, J.
Expenses of Removal — One Vessel Sunk by
Negligence of the Other — Obstruction to Navi-
gation— Liability of Owners of Wrongdoing
VesseL] — By the negligent navigation of the
defendants' steamship a barge was sunk in
the deep-water channel of a port for which the
plaintiffs were the harbour authority, and was
abandoned by its owners, and constituted an
obstruction to the channel, and a public
nuisance. The plaintiffs, in exercise of their
statutory duties, incurred expenses in dis-
persing the wreck and otherwise, and claimed
to recover these expenses from the defen-
dants : — Held, that, both by reason of their
breach of duty or negligence and by reason
of a public nuisance occasioned by their
wrongdoing, the defendants were liable to re-
pav to the plaintiffs the amount of the expenses
incurred bv them. The Ella. 84 L. J. P. 97;
[1915] P. 'ill; 30 T. L. R. 566— Evans, P.
Obstruction in Canal — Expense caused to
Canal Owners — Action against Purchaser of
Wreck — Amount Recoverable.] — Owing
chiefly to negligence of the defendants'
servants a steamship of the defendants came
into collision with another steamship and sank
in the plaintiffs' canal. The plaintiffs em-
ployed tugs to assist vessels past the wreck,
and after removing it sold it to a purchaser,
who refused to carry out his bargain. The
plaintiffs then sued the purchaser and obtained
judgment with costs. In an action by the
plaintiffs against the defendants to recover the
expenses incurred through the sinking of the
defendants' steamship : — Held, that as the
plaintiffs had acted reasonably in employing
the tugs and in suing the purchaser, there
must be included in the expenses which they
were entitled to recover the expense of employ-
ing the tugs and such costs of the action
against the purchaser as had been necessarily
incurred, though they had not been allowed
on taxation. The Solway Prince, 31 T. L. R.
56— Evans, P.
XIX. ADMIRALTY LAW AND
PRACTICE.
See also Vol. XIII. 921, 2222.
Admiralty Jurisdiction — *' Goods carried
into any port in England " — Bill of Lading —
1521
SHIPPING.
1522
Arbitration Clause.] — A case of gold coin
belonging to the plaintiffs was shipped on
board the defendants' German steamship at
Hamburg for delivery at a port in South
America. The bill of lading gave leave for
the vessel to call at other ports, which included
Southampton; and also, by clause 14, pro-
vided that disputes " concerning the interpre-
tation " of the document were to be decided
in Hamburg according to German law. The
vessel called at Southampton on the outward
voyage, failed to deliver the case on arrival
in South America, and called again at South-
ampton on her return voyage, when the
plaintiffs arrested her and brought their action
in rem in the Admiralty Division. The defen-
dants alleged that the claim was covered by
the exceptions in the bill of lading : — Held,
first, that the case was " carried into " a port
in England within the meaning of section 6
of the Admiralty Court Act, 1831. and that the
Admiralty Division had jurisdiction in the
action; but secondly, that the action involved
a dispute " concerning the interpretation " of
the bill of lading under clause 14, and must
therefore be stayed under section 4 of the
Arbitration Act, 1889. The Cap Blanco,
83 L. J. P. 23 : [1913] P. 130 ; 109 L. T. 672 ;
12 Asp. M.C. 399; 29 T. L. E. 557—
Evans, P. Appeal withdrawn, see 83 L. J.
P. 23— C.A.
County Court — Jurisdiction — " Collision."]
— The County Courts Admiralty Jurisdiction
Act, 1868, 8. 3, provides that County Courts
having Admiralty jurisdiction shall have juris-
diction as to any claim for " damage by
collision " : — Held, that this jurisdiction is
confined to collision between ships, and does
not extend to damage by a ship to a floating
gas buoy, which is not a ship. The Normandy
(73 L. J. P. 55; [1904] P. 187) followed.
The Upcerne, 81 L. J. P. 110; [1912] P. 160;
107 L. T. 860 ; 12 Asp. M.C. 281 ; 28 T. L. E.
370— D.
Appeal from County Court — Extension of
Time for Depositing Security — Mistake of
Solicitors — Discretion." — Under section 27 of
the County Courts Admiralty Jurisdiction Act,
1868, it is not "sufficient caiise " to entitle the
Court to allow an appeal to be prosecuted that
the appellants' solicitors have, under a mis-
taken impression that it was unnecessary,
omitted to deposit security for the appeal
within the proper time. The Gratia (No. 1),
28 T. L. E. 49— D.
Filing of Notice of Appeal before SerYice
on Adverse Solicitor." — In an appeal to the
Admiralty Division from a County C(jurt the
appellants filed their notice of motion in the
Eegistry before serving the respondents'
solicitor with a copy of the notice. On the
appeal coming on, the preliminary objection
was taken by the respondents that the Court
could not entertain the appeal on the ground
that the appellants had not complied with
the provisions of Order LIT. rule 10 of the
Eules of the Supreme Court, which require
that a copy of the notice of motion shall be
served on the adverse solicitor before the
original is filed in the Eegistry : — Held, that
even if Order LII. rule 10 applied, the case
was one in which the Court should, in the
exercise of its discretion, hear the appeal on
the ground that sufiicient notice had been
given to the respondents. Whether the words
" in Admiralty actions " in Order LII. rule 10
are intended to include appeals dealt with by
Order LIX. qucere. The Gratia (No. 2),
28 T. L. E. 474— D.
Liverpool Court of Passage — Admiralty
Divisional Court.] — An appeal from a judg-
ment given by the Liverpool Court of Passage
in an Admiralty action lies to the Divisional
Court of the Probate, Divorce, and Admiralty
Division. The Wild Rose and The J. M.
Stubbs, 32 T. L. E. 164— D.
Warrant against Freight v?hether Issuable
Separately — Freight Already Paid — Access to
Cargo — Service of Writ and Warrant.] — A
warrant cannot issue against freight separately
from ship or cargo, or against the proceeds of
the freight already paid to the owners of the
ship by the owners or consignees of cargo ; and
there is no power in an action in rem to issue
either the writ of summons or the warrant to
arrest cargo and freight unless there is access
to the cargo, except that in the case where
access is refused service may be effected on
the custodian. The Kaleten, 30 T. L. E. 572
—Evans, P.
B. MARINE INSURANCE.
I. POLICIES.
1. St.'Vmpixg AST) Eequirements.
See also Vol. XIII. 1028, 2233.
" Open cover " — Loss — Refusal to Sign
Policy — Nev? Contract on New Consideration
— Contract for Sea Insurance not Expressed
in Policy — Action for Payment — Penalty for
Payment on Contract not Expressed in Policy
— Stamp.] — The plaintiffs, a marine insurance
company, re-insured certain risks by means of
an "open cover" with the defendant, an
underwriter at Lloyd's. They became liable
for a loss, and put forward a policy in respect
thereof for the defendant to sign. He refused
to do so on the ground that the plaintiffs had
not made all the declarations which they
should have done. But he agreed orally that
if an independent person, having examined
the plaintiff's books, certified that all the
declarations had been made, he would sign
the policy and pay the loss. The certificate
did so certify, but the defendant refused to
pay, and the action was brought for breach
of the oral agreement to do so. The defen-
dant contended — first, that if he paid he would
be guilty of an offence and be liable to a
penalty under section 97 of the Stamp Act,
1891, in that he would be paying a sum of
money upon a loss relative to sea insurance,
which insurance was not expressed in a policy
of sea insurance duly stamped; and secondly,
that the oral agreement was a contract of sea
insurance and invalid under section 93
because not expressed in a policy of sea
1523
SHIPPING.
1524
insurance : — Held, that these contentions were
correct, and that the plaintiffs could not
recover. Genforsikrings AktieseJskabet v. Da
Costa, 80 L.' J. K.B. 236; [1911] 1 E.B.
137 ; 103 L. T. 767 ; 16 Com. Cas. 1 : 11 Asp.
M.C. 548; 27 T. L. R. 43— Hamilton, J.
Stamp Objection — Costs.] — Consideration of
the question of costs where a stamp objection
is successfully taken by the defendant. lb.
2. Ee-Ixsceance.
See also Vol. XIII. 1036, 2234.
Construction — Loss under Two of Three
Existing Policies — Intention of Assured —
Right to Recover.] — The plaintiffs executed
three policies of insurance on the ship
Kynance dated May 6 and 11, and August 4,
1910. The first two policies related to her
voyage from Newcastle, N.S.W., to the west
coast of South America, and the third policy
related to the homeward voyage from the west
coast. The risk under the third policy was
" to commence from expiration of previous
policy." On August 9, 1910, the plaintiffs
re-insured the ship with the defendant for a
voyage " at and from Valparaiso and or any
port or ports, place or places on the west coast
of South America " to the United Kingdom,
Continent, or United States. The ship was
lost on the west coast in circumstances which,
while rendering the plaintiffs liable under the
first two policies, brought the loss within the
general words of the re-insurance policy. The
defendant contended that the general words
must be limited by the intention of the plain-
tiffs as shewn by the instructions given by
them to their brokers when effecting the re-
insurance, and that the plaintiffs only intended
by the re-insurance to cover their risk under
the policy of August 4, 1910 : — Held, on the
facts, that it was not the intention of the
plaintiffs to cover the risk under the policy of
August 4, 1910, only; but that in any event it
was not open to the plaintiffs under section 26,
sub-section 3 of the Marine Insurance Act,
1906, or otherwise, to narrow down the natural
and prima facie meaning of the contract con-
tained in the re-insurance policy, so as to make
it cover the risk under one only of the three
original policies, to each of which it was
equally applicable, by proof of such an inten-
tion on the part of the plaintiffs uncommuni-
cated to the defendant. Reliance Marine
Insurance Co. v. Duder, 81 L. J. K.B. 870;
[1913] 1 K.B. 265; 106 L. T. 936; 12 Asp.
M.C. 223; 17 Com. Cas. 227 ; 28 T. L. E. 469
— C.A.
The meaning of the Marine Insurance Act,
1906, s. 26, sub-s. 3, discussed. lb.
Commencement of Risk — Intention of
Assured — Right of Assured to Recover.] — A
ship was insured by certain policies issued by
the plaintiffs, who were underwriters at
Lloyd's, for a voyage " from Newcastle,
N.S.W., to port or ports, place or places of
call, and/or discharge backwards and for-
wards and forwards and backwards in any
order or rotation on the West Coast of South
America " at a premium of 70s. per cent.,
cargo screened coal or held covered. The ship
was valued at 12,000Z., and the risk was to
continue for thirty days after arrival at final
port of discharge, or until sailing on next
voyage, whichever might first occur. The ship
was also insured by a Lloyd's policy issued by
the plaintiffs for a voyage " at and from
Valparaiso and/or port or ports and/or place
or places in any order or rotation on the West
Coast of South America " to the United King-
dom or Continent of Europe, or the United
States, at a premium of 80s. per cent.,
" warranted nitrate or held covered at a
premium to be arranged." The ship was
valued in this policy at 10,000/., and the risk
was to commence from the expiration of the
previous policy. The plaintiffs then re-insured
the ship with the defendant for a voyage " at
and from Valparaiso and/or port or ports
and/or place or places in any order or rota-
tion on the West Coast of South America "
to the United Kingdom, Continent of Europe,
or the United States against the risk of total
and/or constructive total loss of the vessel
only, at a premium of 40s. per cent., "being
a re-insurance applying to policy or policies
underwritten by Lloyd's underwriters subject
to the same clauses and conditions as original
policy or policies, and to pay as may be paid
thereon." The ship was "valued at 10,000L
or as in original policy or policies," and the
policy contained the clause " warranted nitrate
or held covered at a premium to be arranged."
The vessel was chartered to load a cargo of
coal at Newcastle, N.S.W., and under the
charterparty the charterers directed her to dis-
charge the cargo at Valparaiso, and bills of
lading were issued making it deliverable at
that port. She was then to proceed under a
second charterparty to Tocopilla to load a
nitrate cargo for a European port. When the
vessel reached Valparaiso it was agreed
between the owners and the charterers under
the first charterparty that instead of deliver-
ing the whole of the cargo of coal at Val-
paraiso she should proceed with 800 or 900
tons of coal still on board and deliver same to
charterers at Tocopilla. This arrangement
relieved the captain from the necessity of
taking ballast on board for the voyage from
Valparaiso to Tocopilla. On the voyage to the
latter port the vessel stranded and became a
total loss. The plaintiffs had paid the owners
of the ship for a loss under the policies on
the first voyage. In an action on the policy
of re-insurance, — Held, that the policy of
re-insurance, inasmuch as it was in respect of
a named cargo and of a named value, was
intended to cover the homeward voyage from
Valparaiso to the United Kingdom and not to
cover the cross-voyage from Newcastle to the
West Coast of South America, and that there-
fore the defendant was not liable, it having
been held by Mr. Justice Scrutton in Kynance
Co. V. Young (27 T. L. R. 306 ; 16 Com. Cas.
123) that the vessel was lost on the cross-
voyage. Held, further, that evidence extrinsic
to the policy — namely, of the slip, the plain-
tiffs" books, and the evidence of the defendant
— was admissible to identify the policy which
was being re-insured, and to shew that the
policv was intended to be a policy on the
I
I
1525
SHIPPING.
1526
liomeward voyage, the intention to insure a
particular voyage having been communicated
• I the defendant. Jansoii V. Poole, 84 L. J.
K.B. 1543; 20 Com. Cas. 232; 31 T. L. E.
.136— Sankey, J.
Steamers not yet Built — From what Time
Policy Runs — Ratification of Policy.] — A slip
was initialled by M. on behalf of his names
in January, 1911, for the insurance of the
steamers Olympic and Titanic for twelve
liionths from delivery by the builders, and the
|ilaintiffs, acting on the instructions of M.,
obtained the re-insurance of part of the risk
under that slip. The Olympic was delivered
nil May 18, 1911. In January, 1912, a fresh
^lip was initialled by M. on behalf of his names
in cover the steamers for twelve months from
I lie expiration of the original policy or slip. In
April, 1912, the Titanic was delivered and M.
'iisured a policy on her, thinking that he was
il(jing so under the slip of January, 1911, while
the brokers for the shipowners thought that
he was acting under the slip of January, 1912,
and M. requested the defendants to issue the
re-insurance policy. On April 15, 1912, the
Titanic was lost, and later the defendants
issued the re-insurance policy, which was
expressed to re-insure the risk taken by M.'s
names under the slip of January, 1911, and
not under that of January, 1912. In an action
by the plaintiffs against the defendants on
the re-insurance policy, — Held, that when one
slip included more than one steamer, the policj*
ran from the time when the first steamer came
on the risk, and the original slip of January,
1911, remained in force till May 18, 1912, that
the original policy of April, 1912, was issued
under the slip of January, 1911, and not under
that of January, 1912, that the re-insurance
slip was a contract to issue a policy in the
usual form covered by the slip, and that the
re-insurance policy should be rectified so as to
enable the plaintiffs to claim under it, and
that the plaintiffs were entitled to recover.
Emanuel d Co. v. Weir c£- Co., 30 T. L. R.
518— Bailhache, J.
Policy " subject to same clauses and condi-
tions as original policy . . . and to pay as
may be paid thereon" — Two Slips.] — In
January, 1911, a firm of D. & W. initialled
a slip agreeing to insure the Olympic and
Titanic for twelve months from delivery.
Shortly afterwards D. & W. re-insured part of
this risk with the plaintiffs. In December,
1911, the defendant initialled a slip for re-
insuring a portion of the plaintiff's risk for
" twelve months from expiration or delivery,
clauses and conditions as original." In Janu-
ary, 1912, the Titanic not having yet been
delivered, D. & W. initialled another slip in
the following terms : " Olympic, Titanic,
twelve months from expiry." No intimation
was given to D. it \V. or to the plaintiffs'
agent that this was intended to be anything
else but what it purported to be — namely, a
renewal for a further twelve months after the
expiry of the first twelve months ; but before
a policy was issued an intimation was sent to
some of the underwriters explaining that the
msurance, so far as concerned the Titanic,
would commence from the delivery of the ship ;
no such notice was, however, sent to D. & \V.
or to the plaintiffs' agent. A policy was issued
bv D. & \\. on April 3, 1912, insuring the
Titanic for 2,500L from April 2, 1912; by a
policy dated April 10, 1912, the plaintiffs re-
insured D. & W.'s risk to the extent of 400/. ;
and on April 11, 1912, the defendant under-
wrote a policy re-insuring the plaintiffs' risk
to the amount of 801. This policy contained
the following clause : " Being a re-insurance
for account the Scottish National Insurance
Company (Limited) subject to the same
clauses and conditions as original policy or
policies and to pay as may be paid thereon."
The Titanic having been lost on April 15, 1912,
the plaintiffs paid D. & W. under the policy of
April 10, and now sought to recover from the
defendant under the policy underwritten by
him on April 11, 1912. The defendant con-
tended that the policj' of April 10 was not the
original policy mentioned in the policy of
April 11, and that there was no original policy,
and, further, that the initialling of the second
slip had the effect of cancelling the slip of
January, 1911 -.—Held, that D. & W. were
always under a contract of insurance of the
Titanic for the first twelve months by virtue of
the slip they initialled in January, 1911; that
the plaintiffs agreed to re-insure D. & \V. up
to 400Z. in January, 1911, and remained under
this liability ; that the defendant agreed to re-
insure the plaintiffs against their liability to
the amount of 80/. by initialling the slip of
December, 1911, and that he signed the policy
of April 11, 1912, in pursuance of that con-
tract, and therefore that he was liable to the
plaintiffs. Scottish National Insurance Co. v.
Poole, 107 L. T. 687; 18 Com. Cas. 9;
12 Asp. M.C. 266 ; 57 S. J. 45 ; 29 T. L. E. 16
— Bray, J.
Re-insurance against Total or Constructive
Loss only — " To follow hull underwriters in
event of a compromised or arranged loss being
settled " — Claim for Constructive Total Loss
or Alternatively for Partial Loss Compromised
by Hull Underwriters.] — The defendants re-
insured the plaintiff by a policy which con-
tained the following clause : " Being a
re-insurance and to pay as per original policy
or policies, but the insurance is against the
risk of the total or constructive total loss of
the steamer only, but to follow hull under-
writers in event of a compromised or arranged
loss being settled." An action was brought
by the owner of the insured ship against the
hull underwriters claiming for a constructive
total loss and in the alternative for a partial
loss, and that action was compromised,
nothing being said as to whether the under-
writers were settling the claim as for a
constructive total loss or as for a partial loss.
In an action on the re-insurance policy, — Held,
that the plaintiff was entitled to recover,
inasmuch as there having been a claim for a
constructive total loss against the hull under-
writers which had been compromised, then'
was, within the meaning of the clause in
the re-insurance policy, " a compromised or
arranged loss," notwithstanding that there
had also been an alternative claim against the
hull underwriters for a partial loss. Street V.
Royal Exchange .issurance. 111 L. T. 235;
1527
SHIPPING.
1528
12 Asp. M.C. 496; 19 Com. Cas. 339;
30 T. L. E. 495— C. A.
Constructive Total Loss — Compromise of
Claim under Original Policy — Right of Re-
insurers to Benefit of Compromise.] — The
plaintiffs, who had insured the Katina against
total and/or constructive total loss only, re-
insured the risk with the defendants. The
re-insurance policies did not contain the usual
clause "to pay as may be paid thereon."
During the currency of the policies the Katina
stranded, and her owners gave notice of aban-
donment, alleging that she was a constructive
total loss. The plaintiffs declined to accept
the notice of abandonment, whereupon the
owners sued them, but that action was com-
promised by the plaintiffs paying to the owners
66 per cent, only of the loss. The defendants
were asked to agree to this compromise, but
they declined to do so, alleging that there was
no constructive total loss in fact. In an action
by the plaintiffs against the defendants on the
re-insurance policies it was found, as a fact,
that the Katina was a constructive total loss :
— Held, that a contract of re-insurance is a
contract of indemnity only ; and that there-
fore, as the defendants were entitled to the
benefit of the compromise made by the plain-
tiffs with the owners, the plaintiffs could only
recover from the defendants 66 per cent, of
the loss ; the plaintiffs, however, were entitled
to add to their claim against the defendants
the costs of obtaining the compromise with
the owners. Uzielli d Co. v. Boston Marine
Insurance Co. (54 L. J. Q.B. 142; 15 Q.B. D.
11) considered. British Dominions General
Insurance Co. v. Duder, 84 L. J. K.B. 1401;
[1915] 2 K.B. 394; 113 L. T. 210; 20 Com.
Cas. 270; 12 Asp. M.C. 575; 31 T. L. E. 361
Q j^
Judgment of Bailhache. J. (83 L. J. K.B.
1528; [1914] 3 E.B. 835), reversed. lb.
Non-disclosure of Material Fact — Policy
" subject without notice to the same clauses
and conditions as the original policy" —
Liability of Re-insurer.] — The plaintiffs in-
sured the hull of a steamship on a time policy
for 5001. at a premium of 6 per cent. The
policy contained a clause that the ship had the
option to navigate the Canadian lakes, and an
additional premium of 3 per cent, was paid
in respect thereof. The defendants re-insured
250Z. on the risk at the same premium of
6 per cent., but no mention was made at the
time the re-insurance was effected of the
option to navigate the lakes or the additional
premium. The defendants' policy was stated
to be " subject without notice to the same
clauses and conditions as the original policy."
While in the lakes the ship sustained damage
in respect of which the plaintiffs paid 117L IBs.
on their original policy. The plaintiffs claimed
58L 165. 6d., the proportion due from the
defendants, but the defendants repudiated
liability on the ground that a material fact
had been concealed from them, and their policy
of re-insurance was thereby rendered invalid :
— Held, that although the option to navigate
the lakes was a material fact that ordinarily
should have been disclosed when the re-
insurance was effected, the defendants had
agreed to be bound by the terms of the original
policy without notice, and were therefore liable.
ProTperty Insurance Co. v. National Protector
Insurance Co., 108 L. T. 104; 18 Com. Cas.
119; 12 Asp. M.C. 287; 57 S. J. 284—
Scrutton, J.
II. DUEATION OF EISK.
See also Vol. XIII. 1048, 2237.
Policy Covering Voyage " to port or ports
place or places of call and/or discharge " —
One Port of Discharge Named in Charterparty
— Total Loss while Vessel Proceeding to
Second Port with Part of Original Cargo —
Right of Assured to Recover.] — By a policy of
insurance the plaintiffs insured tlieir ship for
a voyage from Newcastle (N.S.W.) " to port'
or ports, place or places of call and /or dis-
charge backwards and forwards and forwards
and backwards in any order or rotation on the
West Coast of South America, and while in
port for 30 days after arrival, however em-
ployed, or until sailing on next voyage,
whichever may first occur." The vessel was
chartered to load a cargo of coal at Newcastle
(N.S.W. ), and under the charterparty the
charterers directed her to discharge the cargo
at Valparaiso, and bills of landing were issued
making it deliverable at that port. She was
then, under a second charterparty, to proceed
to Tocopilla to load a nitrate cargo for a
European port. When the vessel reached
A'alparaiso it was agreed between the plaintiffs
and the charterers under the first charterparty
that, instead of delivering the whole of the
cargo of coal at Valparaiso, she should proceed
with 800 or 900 tons of the coal still on board
and deliver same to the charterers at Tocopilla.
This arrangement also relieved the captain
from the necessity of taking ballast on board
for the voyage from A^alparaiso to Tocopilla.
On the voyage to the latter port the vessel
stranded, and became a total loss : — Held,
that it was competent for the plaintiffs and
charterers to vary the mode of performing the
charterparty by discharging the cargo of coal
at two ports, instead of one, and that the loss
was covered by the policy. " Kynance " Co.
V. Young, 104 L. T. 397; 16 Com. Cas. 123;
11 Asp. M.C. 596 ; 27 T. L. E. 306— Scrutton, .7.
Policy Covering Transit — Steel Casting —
Conclusion of Transit — Damage — Action on
Policy.] — The plaintiffs, a Hamburg shipping
company, ordered a new cast-steel stem frame
for a steamer and had a policy of marine
insurance effected on it with the defendant and
other underwriters at Lloyd's. The policy was
expressed to be " against all risks, especially
including breakage and damage done and
received through loading and discharging,
irrespective of percentage." It was further
provided by clauses attached to the policy that
it should "include " all risks of craft and/or
raft and /or of any special lighterage without
recourse against lighterman ... of fire, tran-
shipment, landing, warehousing, and reship-
ment if incurred, and whilst waiting shipment
and /or reshipment, and all other risks and
losses by land and water from the time of
leaving the warehouse at point of departure
until safely delivered into warehouse or other
1529
SHIPPING.
1530
place for which the goods have been entered
or in which it is intended they shall be lodged,
whether previously discharged or landed else-
where within the port or place of destination
or not." The casting was shipped from West
Hartlepool to Hamburg and discharged on the
quay on June 14. At that time the steamer
on which the stern frame was to be fitted was
at Port Said, but she was expected at Ham-
burg. Arrangements were made on June 27
with the Vulcan Works Co. to fit the frame,
and this company transported it in a lighter
to their quay. While it w^as being lifted from
the lighter to their quay it struck the quay
wall and was so damaged as to be useless.
The plaintiffs claimed that there had been a
total loss by a peril insured against : — Held,
that the casting was not in transit at the time
when the loss occurred, and therefore the
plaintiffs could not recover on the policy.
Deutsch-Australische Dampfschiffs-GespllscJiaft
V. Sturge, 109 L. T. 905; 12 Asp. M.C. 453;
30 T. L. E. 137— Pickford, J.
in. NATUKE OF RISK.
1. Perils of the Sea.
a. Injury Consequential on.
See also Vol. XIII. 1073, 2239.
Percolating Water.] — Opium was placed in
a wooden hulk which was in a rotten condition
and which was moored in a river. The opium.
on which a time policy against marine risks
had been effected, was damaged by sea water
percolating through some copper sheathing
which covered up a weak place in the hulk : —
Held, that the opium was not covered by the
policy, the damage, though proximately due to
sea water, not being due in any sense to a
peril of the sea. Sassoon <£ Co. v. Western
Assurance Co., 81 L. J. P.C. 231; [1912] A.C.
561 ; 106 L. T. 929 ; 12 Asp. M.C. 206 ; 17 Com.
Gas. 274— P.C.
Perils " of the seas . . . and all other perils,
losses, and misfortunes" — Institute Time
Clauses Attached to Policy — " In port and at
sea, in docks" — Inchmaree Clause — Ship
Loading in Dock — Accident through Break-
ing of Machinery of Floating Crane.] — A
steamer was insured by a time policy against
perils " of the seas " and " all other perils,
losses, and misfortunes." The policy included
" the conditions of the Institute Time Clauses
as attached." Clause 3 of the attached clauses
provided as follows : " In port and at sea, in
docks and graving docks ... in all places,
and on all occasions, services, and trades
whatsoever and wheresoever. ..." Clause 7
provided as follows : " This insurance also
specially to cover . . . loss of, or damage to
hull or machinery . . . through any latent
defect in the machinery or hull." The
steamer while lying in dock was taking on
board a boiler weighing thirty tons from a
floating crane. The boiler as it descended
caught upon the coamings of the hatch, and
the pin of the shackle attached to the rope by
which the boiler was being lowered broke and
the boiler fell into the lower hold and
damaged the ship : — Held (Phillimore, L.J.,
duhitante). that the loss was not covered by
the general words in the body of the policy,
as it was not due to a peril, loss, or misfortune
of a marine character, or of a character
incident to a ship as such ; nor by clause 3 of
the attached clauses, as that clause could not
be read as enlarging the class of risks covered
by the policy ; nor by clause 7 of the attached
clauses, as that clause could not be read into
the ordinary Lloyd's peril clause in the policy
so as to make the general words in that clause
applicable to clause 7. Stott (Baltic) Steamers ^
Lim. V. Marten, 83 L. J. K.B. 1847; [1914]
3 K.B. 1262 ; 111 L. T. 1027 : 12 Asp. M.C.
555; 19 Com Cas. 438; 30 T. L. R. 686— C.A.
Affirmed, 85 L. J. K.B. 97; 60 S. J. 57;
32 T. L. R. 85— H.L. (E.)
b. Collision.
See also Vol. XIII. 1082, 2241.
Collision Clause of Lloyd's Policy — Con-
struction— " Collision with any other ship or
vessel" — Fouling Nets of Fishing Vessel.] —
The collision clause attached to the usual form
of Lloyd's policy provides that if the insured
ship " shall come into collision with any other
ship or vessel " and the assured shall in con-
sequence thereof become liable to pay and shall
pay by way of damages to any other person
any sum not exceeding the value of the insured
ship, the company will pay the assured a
certain proportion of such sum. The respon-
dents' steamer ran foul of the nets belonging
to and attached to a fishing vessel about a mile
distant. The hull of the steamship did not
at any time come into contact with the hull of
the fishing vessel : — Held, that there had not
been, under the ciicumstances, a collision
between the steamship and " any other ship
or vessel " within the meaning of the collision
clause. Bennett Steamship Co. v. Hull Mutual
Stea77iship Protecting Society. 83 L. J. K.B.
1179; [1914] 3 K.B. 57; 111 L. T. 489;
12 Asp. M.C. 522; 19 Com. Cas. 353;
30 T. L. R. 515— C.A.
Decision of Pickford, J. (82 L. J. K.B.
1003; [1913] 3 K.B. 372), affirmed. Ih.
Institute Time Collision Clause — Collision
between Insured Vessel and another Vessel
— Subsequent Collision between the other
Vessel and Third Vessel — Second Collision
Caused by Forces set in Operation by the
Negligent Navigation of Insured Vessel —
Liability of Underwriters for Damage Caused
by Second Collision."! — A policy of marine
insurance i)n tlie phiiutiffs' vessel, the Corn-
wood, wliich was underwritten by the defen-
dants, contained the running-down clause of
the Institute Time Clauses, as follows : "It
is further agreed tliat if the ship hereby
insured shall come into collision with any other
ship or vessel, and the assured shall in con-
sequence thereof become liable to pay, and
shall pay by way of damages to any other
person or persons any sum or sums not exceed-
ing in respect of any one such collision the
value of the ship hereby insured, this company
will pay the assured such proportions of three-
1531
SHIPPING.
1532
fourths of such sum or sums so paid as its
subscription hereto bears to the value of the
ship hereby insured." The Cornwood, while
proceeding up the river Seine, desired to pass
the Rouen, which was also proceeding up the
Seine. The Galatee was at the same time
coming down the river. The Cornivood. trying
to avoid both ships, by negligent navigation
drew too near the Rouen as she passed, with
the result that the stem of the Rouen was
drawn to the side of the Cornwood, and there
was a slight collision. The Cornwood then
ran into the bank, and the wash from her pro-
peller operated upon the bow of the Rouen,
increasing the swing that she already had to
port as a result of the close proximity of the
Cornwood, with the result that the Rouen was
pushed across the river, where she came into
collision with the Galatee, causing very serious
damage to both vessels. The owners of the
Cornwood were held liable in an action in the
Admiralty Court for the damage caused both
to the Rouen and to the Galatee. They now
sued the underwriters to recover for such
damage under the above clause in the policy :
— Held, that, inasmuch as the collision be-
tween the Rouen and the Galatee was due to
forces set in operation by the negligent navi-
gation of the Cornioood causing the impact
between the Cornwood and the Rouen, it was
a consequence of that collision within the terms
of the collision clause in the policy, and that
therefore the owners of the Cornioood were
entitled to recover from the underwriters under
the policy three-fourths of the damages they
had had to pay to the owners of the Rouen
and the Galatee. France, Fenwick d- Co. v.
Merchants Marine Insurance Co., 84 L. J.
K.B. 1905 ; [1915] 3 K.B. 290 ; 113 L. T. 299 ;
20 Com. Cas. 227 : 31 T. L. K. 321— C.A.
Decision of Bailhache, J. (84 L. J. K.B.
138; [1914] 3 K.B. 827), affirmed. lb.
2. Eestraint and Detention.
See also Vol. XIII. 1089, 2248.
Shipment of Goods in British Ship to Ham-
burg—Declaration of War by England against
Germany — Abandonment of Voyage without
Intervention of Force — Notice of Abandon-
ment.]— .\ declaration of war is an act v)f
State "equivalent to a statute prohibiting inter-
course with the enemy country, and amounts
to a " restraint of princes " within the mean-
ing of the peril of " takings at sea, arrests,
restraints and detainments of all kings,
princes and people of what nation, condition
or quality soever," insured against in a policy
of marine insurance. Actual physical force
is not necessary to constitute such restraint
provided that the State has power to enforce
the prohibition, and the restraint may be exer-
cised by the Government of a country of which
the assured is a subject, provided that the
restraint is not imposed for a violation of the
law of that country. Sanday d Co. v. British
and Foreign Marine Insurance Co., 84 L. J.
K.B. 1625 ; [1915] 2 K.B. 781 ; 113 L. T. 407 ;
20 Com. Cas. 305 ; 59 S. J. 456 ; 31 T. L. E.
374— C.A.
Decision of Astbury, J. (31 T. L. K. 194),
affirmed. lb.
The Marine Insurance Act, 1906, has not
altered the common law doctrine that the
constructive total loss of goods insured can
be proved by the destruction of the contem-
plated adventure. lb.
The plaintiffs, British subjects, sold on c.i.f.
terms to some CTerman firms at Hamburg
some parcels of linseed and wheat, but the
ownership of the goods was to remain in the
plaintiffs until delivery at Hamburg. The
goods were shipped in June and July, 1914,
in British ships at Buenos Aires for Hamburg,
and were insured with the defendants against
the peril of " takings at sea, arrests, restraints
and detainments of all kings, princes and
people of what nation, condition or quality
soever." War was declared by England
against Germany on August 4, 1914, and
trading with the enemy was immediately
afterwards prohibited by proclamation. The
vessels containing the shipments, instead of
continuing the voyage to Hamburg, proceeded
to English ports, and discharged their cargoes,
the linseed and wheat being depreciated in
value. In an action by the plaintiffs on the
policy, — Held (Swinfen Eady, L.J., dissen-
tiente), that the plaintiffs could recover for
the constructive total loss of the goods by one
of the perils insured against — namely, that
of " restraint of princes," &c., withm the
meaning of the policy. Dictum of Martin, B.,
in Finlaij v. Liverpool and Great Western
Steamship Co. (23 L. T. 251, 254) considered.
7b.
3. Capture and Seizure.
See also Vol. XIII. 1104, 2243.
Cargo not Sent Forward to Port of Destina-
tion— Fear of Capture.] — The plaintiffs, mer
chants carrying on business in Russia, effected
with the defendants a policy of insurance on
cargo at and from San Francisco to Vladi-
vostok. The policy, which was against total
loss, was against war risk only — namely, the
risk excepted by the clause " warranted free
of capture, seizure and detention and the con-
sequences thereof . . . and also from all
consequences of hostilities or warlike opera-
tions, whether before or after declaration of
war." The plaintiffs had arranged for three
shipments. The first two shipments were
made, but the vessels were captured by the
Japanese Fleet during the war between Russia
and Japan. When the vessel which was to
carry the rest of the goods was about to sail,
and when some of the cargo was on board, it
became known that the Japanese Fleet was
blockading Vladivostok and was capturing
vessels, and the underwriters telegraphed that
if the cargo was sent forward to Vladivostok
they would contend that the plaintiffs had
deliberately caused any loss which might be
occasioned. Notice of abandonment was there-
upon given to the underwriters, who, however,
refused to accept it, and the cargo was dis-
charged and sold. In an action upon the
policy, the plaintiffs claimed the value of the
cargo, giving credit for the amount realised
by the sale : — Held, that under the circum-
stances there had been no loss of cargo by a
peril insured against. Kacianoff v. China
1533
SHIPPING.
1534
Traders Insurance Co., 83 L. J. K.B. 1393;
[1914] 3 K.B. 1121; 111 L. T. 404: 12 Asp.
M.C. 524; 19 Com. Cas. 371; 30 T. L. H.
546-C.A.
Decision of Pickford, J. (83 L. J. K.B. 58;
[1913] 3 K.B. 407), affirmed. lb.
Detention of Ship by Belligerent — Ship
Subsequently Released — "Actual total loss"
— "Constructive total loss" — "Unlikely to
recover."] — A policy of insurance on the
plaintiffs' s.s. Polurrian was expressed to be
against " capture seizure and detention and
the consequences thereof or any attempt
thereat piracy excepted and also from all con-
sequences of hostilities or warlike operations
whether before or after declaration of war."
On October 9, 1912, the Polurrian sailed from
Newport for Constantinople with a cargo of
coal. On October 17 war broke out between
Turkey and Greece, and the Greeks declared
all fuel to be contraband of war. When the
Polurrian arrived off the entrance to the
Dardanelles on October 25 she was stopped by
Greek destroyers, taken to the Greek naval
base at Lemnos, and there detained until
November 28. The cargo of coal was taken
out of her by the Greeks and used for coaling
the Greek fleet. She was then ordered by the
Greek admiral to proceed to the Piraeus in
order to be tried by a Prize Court, but was
eventual!}' released on December 8 without
coming before a Prize Court. The Greeks
alleged that the master of the Polurrian had
admitted when the ship was seized that he
knew of the war. The master denied that
he knew of the war or had admitted that he
knew of it to the Greeks. The plaintiffs gave
notice of abandonment to the underwriters on
October 26, and claimed for an actual or a
constructive total loss, or in the alternative
damages {inter alia) for the loss of the use of
the ship during the six weeks as a particular
average loss : — Held, by Pickford, J., that
there had not been an actual total loss of the
Polurrian within the meaning of section 57 of
the Marine Insurance Act, 1906, nor a con-
structive total loss within the meaning of
section 60, as the owners had not been irre-
trievably deprived of her, nor was it at any
time unlikely that they would recover the ship.
Further, the plaintiffs were not entitled to
recover as a particular average loss the
depreciated value of the ship by reason of
her not being able to earn money during the
time she was detained. On appeal on the
question of " constructive total loss," — Held,
by the Court of Appeal, that although on
October 26 recovery of the ship was " uncer-
tain," it was not " unlikely " within sec-
tion 60, sub-section 2 fa) of the Marine
Insurance Act, 1906, and that the plaintiffs
could not therefore recover for a " construc-
tive total loss." Polurrian Steamship Co. v.
Yotmg, 84 L. J. K.B. 1025; [1915] 1 K.B.
922; 112 L. T. 1053; 20 Com Cas. 152;
59 S. J. 285; 31 T. L. R. 211— C.A.
Where the insured has been deprived of the
possession of his ship by a peril insured
against, the test of " unlikelihood " of
recovery is substituted by section 60, sub-
section 2 (o) of the Marine Insurance Act,
1906, for the former test of " uncertainty " of
recovery. lb.
Decision of Pickford, J. (109 L. T. 901;
30 T. L. E. 126). alfirmed. lb.
Men-of-war — Goods on German Ship — Out-
break of War — Ship Putting into Neutral Port
to Avoid Peril of Capture — Constructive Total
Loss of Goods.] — The plaintiffs, who wen-
English merchants, shipped goods at Calcutta
on board the Kattenturm, a German ship,
for carriage to Hamburg. The goods were
insured by the plaintiffs with the defendants
against (inter alia) the perils of " men-of-war
. . . enemies . . . takings at sea, arrests,
restraints, and detainments of all kings,
princes, and peoples of what nation, condi-
tion, or quality soever . . . and of all other
perils, losses, and misfortunes, that have or
shall come to the hurt, detriment, or damage,
of the said goods and merchandise." The
ship was in the Mediterranean when war
broke out in August, 1914, between Great
Britain and France and Germany. The
master, on hearing of the outbreak of war
and fearing that if he proceeded with the
voyage his ship would be captured by British
or French cruisers, put into Messina, and
subsequently shifted to another neutral port,
where he remained. The plaintiffs gave
notice of abandonment to the defendants,
alleging that there had been a constructive
loss of the goods by a peril insured against :
— Held, that the loss of the goods was due
to the fact that the voyage was abandoned
at Messina, but that at the time the master
of the Kattenturm went into Messina the
peril of capture had not begun to operate,
he having gone into that port to avoid the
commencement of the peril, and that there-
fore the loss of the goods was not due to a
peril insured against. Becker. Gray <£• Co.
V. London Assurance Corporation, 84 L. J.
K.B. 1993; [1915] 3 K.B. 410; 21 Com. Cas.
43; 31 T. L. E. 538— Bailhache, J.
War Risks — Loss by German Submarine.''
— The steamship Oriole was insured by the
defendant company against ordinary marine
perils, war risks being excluded, and she was
insured by the defendant Janson against war
risks. She left London for Havre in a sea-
worthy condition on January 29, 1915, and
was last seen on January 30 off Dungeness.
Two other steamers were torpedoed off Havre
by a German submarine on January 30 : —
Held, on the evidence, that the Oriole had been
lost by a war risk, and therefore the defendant
Janson was liable on his policy, but the
defendant company were not liable on their
policy. General Steam "Navigation Co. v.
Commercial Union .Issurance Co. ; Same v.
Janson, 31 T. L. E. 630— Bailhache, J.
4. Othee Eisks.
See also Vol. XIII. 1109, 2247.
"Inchmaree clause" — Damage to Hull or
Machinery — Latent Defect.] — By a policy of
marine insurance a ship was insured for
twelve months from December 8, 1908, to
December 8, 1909, against the ordinary
1535
SHIPPING.
1536
Lloyd's perils. The policy also contained
the following clause : " This insurance also
specially to cover . . . loss of or damage to
hull . . . through any latent defect in the
. . . hull . . . provided such loss or damage
has not resulted from want of due negligence
by the owners of the ship, or any of them,
or by the manager." There was a defect in
the ship's stern frame at the time she was
built — namely, in 1906. The defect was
covered up by the makers, and it remained
undiscovered by reasonable inspection until
after the commencement of the policy. During
the currency of the policy the defect became
visible owing to ordinary wear and tear, and
the stern frame was condemned. The assured
claimed to recover under the policy the cost
of replacing the condemned stern frame : —
Held, that there had been no loss of or damage
to hull during the currency of the policy from
perils insured against, and therefore that the
assured were not entitled to recover. Hutchins
V. Royal Exchange Assurance, 80 L. J. K.B.
1169 ; [1911] 2 K.B. 398 ; 105 L. T. 6 ; 16 Com.
Cas. 242; 12 Asp. M.C. 21; 27 T. L. R. 482
— C.A.
lY. INTEREST OF ASSURED.
See also Vol. XIII. 1110, 2252.
Measure of Insurable Interest.] — The
measure of insurable interest in a marine
policy of insurance covering a fluctuating
subject-matter is the amount at risk at the
time of loss and not necessarily the amount
of loss. Anstey v. Ocean Marine Insurance
Co., 83 L. J. K.B. 218 ; 109 L. T. 854 ; 12 Asp.
M.C. 409; 19 Com. Cas. 8; 58 S. J. 49;
30 T. L. R. 5— Pickford, J.
Policy on Captain's Effects on Board Ship
— Risk of Damage or Loss by Fire — Total
Loss by Fire of Portion of Effects on Board —
Portion on Shore.] — The captain of a ship
insured his effects against total loss of the
vessel, including perils of the sea, fire, &c.
Whilst he was on shore with certain clothing,
his watch, &c., the vessel was totally lost
through an explosion of dynamite, with the
result that his effects on board were destroyed :
— Held, that the policy covered the whole of
his effects at the time of the loss and not
merely the effects which were destroyed, and
that the insurers were therefore only liable for
such a proportionate sura of money as the value
of the lost effects bore to the whole. 76.
Freight — Valued Freight Policy — Construc-
tive Total Loss of Ship — Freight Subsequently
Earned — Clause in Hull Policy that Under-
writers not Entitled to Freight — Clause in
Freight Policy for Payment of Freight in Full
on Total Loss, whether Absolute or Construc-
tive.]— The plaintiff insured the hull and
machinery of the s.s. Ivy by a policy to which
the Institute Time Clauses — Hull, of 1910, were
attached, and these included the following :
" In the event of total or constructive total
loss, no claim to be made by the underwriters
for freight, whether notice of abandonment has
been given or not." The plaintiff also took
out a policy on freight valued at 950i., and
attached to that policy were the Institute Time
Clauses — Freight, of 1910, No. 5 of which was
as follows : "In the event of the total loss,
whether absolute or constructive, of the
steamer, the amount underwritten by this
policy shall be paid in full, whether the
steamer be fully or only partly loaded or in
ballast, chartered or unchartered." During
the currency of these policies the Ivy became
a constructive total loss, but she was subse-
quently towed to her port of destination, where
she discharged her cargo, and the plaintifE
received from the consignees 680Z. 12s. in
respect of the carriage of the cargo so delivered.
Thereafter the plaintiff sued the defendants
as the underwriters on the freight policy,
claiming payment " in full " under the freight
policy — namely, 950Z. : — Held, that as some
freight had been earned by delivery of the
cargo to the consignees, and that freight had
been received and retained by the plaintiff, the
defendants, as the freight underwriters, were
only liable to the plaintiff for the amount in-
sured, less the amount of freight so received
by the plaintiff from the consignees of cargo.
Coker v. Bolton, 82 L. J. K.B. 91; [1912]
3 K.B. 815; 107 L. T. 54; 12 Asp. M.C. 231;
17 Com. Cas. 313; 56 S. J. 751— Hamilton, J.
"Chartered or as if chartered."] — The
plaintiffs effected with the defendants a policy
of insurance upon freight on frozen meat
and/or apples and/or other refrigerated pro-
duce valued at 15,000L, " chartered or as if
chartered " of the ship Ayrshire, " at and from
any ports or places in any order or rotation
in the United Kingdom to any ports or places
in any order or rotation in Australia and /or
Tasmania. ..." The perils insured against
included perils of the seas : — Held, that the
words " chartered or as if chartered " could
not extend to a reasonable anticipation on the
part of the plaintiffs of earning freight upon
a complete cargo where no contract to load
cargo was in existence at the material date.
Scottish Shire Line v. London and Provincial
Marine and General Insurance Co., 81 L. J.
K.B. 1066; [1912] 3 K.B. 51; 107 L. T. 46;
17 Com. Cas. 240; 12 Asp. M.C. 253; 56 S. J.
551 — Hamilton, J.
Insurance on Passage Money against Pas-
senger Act — Accident to Ship — Passengers
Forwarded to Destination by other Ships —
Disbursements in Respect of Passage Money
— Ship after Repairs Sails to Destination with
other Passengers — Loss of Passage Money —
Salvage.^ — By a policy, undei-written by the
defendant and other underwriters at Lloyd's,
the plaintiffs were insured from any ports or
places in the United Kingdom to any ports
or places in Australia and /or New Zealand
upon any kinds of goods and merchandise in
the s.s. Westmeath. The goods and mer-
chandise were " valued at 4,758Z. on passage
money, plus 50 per cent. (United Kingdom
bookings to Australia) so valued ; 992/. 13s. 3d.
passage money plus 50 per cent. (United King-
dom bookings to New Zealand) so valued —
5,750Z. 13s. 3d. against Passenger Act as per
clause attached." The clause attached pro-
vided that the policy was " to be held to cover
any disbursements, &c., that may be made
1537
SHIPPING.
1538
by the assured arising from accident or loss
on account of passengers . . . whether for
maintenance or conveyance to intended desti-
nation . . . and whether such disbursements,
Ac, be compulsory or voluntary (provided
same be reasonably incurred)." The s.s. West-
meath was carrying emigrants to Australia.
She started on her voyage from Liverpool, but
while in the Mersey she dragged her anchors
and went ashore and sustained serious damage.
The plaintiffs, in order to comply with the
provisions of sections 328 and 331 of the Mer-
chant Shipping Act, 1894, incurred consider-
able expense in respect of the maintenance of
the passengers on shore, and they were
eventually carried to their destination in other
ships, and the plaintiffs paid the passage
money in respect of their carriage. The
s.s. Westmeath was repaired, and after being
detained seventy to eighty days sailed to
Australia with other passengers whose passage
money exceeded the amount of the passage
money of the passengers on the Westmeath
when she went ashore. In an action by the
plaintiffs for a loss under the policy in respect
of the disbursements incurred by them, — Held,
that the policy was an insurance upon the risk
of disbursements with regard to the particular
passengers on board the Westmeath when she
first sailed, and that the passage money of the
passengers who were eventually carried on the
Westmeath upon different contracts could not
be regarded as substituted for the passage
monej' of the first lot of passengers, neither
could it be regarded as a salvage in respect
of the subject-matter insured, and that there-
fore the plaintiffs were entitled to recover.
NeiD Zealand Shipping Co. v. Duke, 83 L. J.
K.B. 1300: [19141 2 K.B. 682; 111 L. T. 37;
12 Asp. M.C. 507; 19 Com. Cas. 223;
30 T. L. R. 385— Pickford, J.
V. CONCEALMENT AND MISREPEE-
SENTATION.
See also Vol. XIII. 1178, 2250.
Non-disclosure of Material Facts.] — Marine
insurances were effected for a particular
voyage on a sailing ship, and payment was
resisted by the appellants — first, on the ground
of breach of the warranty of seaworthiness ;
secondly, on the ground of the non-disclosure
of material facts, (a) as to the captain of the
vessel, and (b) as to the other insurances
effected in connection with the ship. The
captain had not been at sea, when he was
engaged, for twenty-two years, having in the
interval been occupied as a stevedore. He
had lost his last ship and his certificate had
been suspended. The hull was largely over-
insured, and there were insurances on gross
freight and disbursements. In some of these
latter there was no insurable interest. The
manager, who was a creditor of the ship, had
for his own protection taken out " honour "
policies, the amount of which would in the
event of the ship's loss be paid in full : —
Held, that the non-disclosure of the past
history of the master of the ship was not
a concealment of a material fact or a breach
of warranty of seaworthiness; but that the
concealment of the over-insurance and of the
" honour " policies constituted such a con-
cealment and made the policies voidable by
the insurer. TJiames and Mersey Marine
Insurance Co. v. " Gunford " Ship Co.;
Southern Marine Insurance Association v.
"Gunford" Ship Co., 80 L. J. P.C. 146;
[1911] A.C. 529; 105 L. T. 312; 16 Com. Cas.
270 ; 12 Asp. M.C. 49 ; 55 S. J. 631 ; 27 T. L. R.
518— H.L. (Sc.)
The plaintiffs agreed with an Australian
firm to have the Ayrshire at Hohart on or
about March 20, 1910, ready to load a cargo
of apples. This date was not made known
by the plaintiffs to the defendants. The ship
did not arrive till a nmch later date and lost
the freight : — Held, that there had been a
non-disclosure of a material circumstance by
the assured, and that under section 18 of the
Marine Insurance Act, 1906, the defendants
were entitled to avoid the policy. Scottish
Shire Line v. London and Provincial Marine
and General Insurance Co., 81 L. J. K.B.
1066; [1912] 3 K.B. 51; 107 L. T. 46;
17 Com. Cas. 240; 56 S. J. 551— Hamilton, J.
Floating Dock — Ocean Voyage — " Sea-
worthiness admitted" — Dock not Specially
Strengthened for Voyage — Underwriters Put
upon Enquiry — Waiver.] — The owners of a
floating dock effected an insurance thereon
" seaworthiness admitted " for an ocean voy-
age. They did not specially strengthen the
dock for the voyage, honestly believing that
no special strengthening was necessary, and
they did not inform the underwriters that it
had not been so strengthened. In consequence
of not being so strengthened the dock was lost
on the voyage. In an action on the policy the
underwriters pleaded the non-disclosure of the
fact that the dock had not been strengthened
for the voyage : — Held, that in the circum-
stances the assured were not under an obliga-
tion to disclose this fact, but that the
underwriters were put upon enquiry as to the
construction or seaworthiness of the dock, and,
not having made any enquiries, must be held
to have waived the information. Cantiere
Meccanico Brindisino v. Janson, 81 L. J.
K.B. 1043; [1912] 3 K.B. 452; 107 L. T. 281;
17 Com. Cas. 332; 12 Asp. M.C. 246;
57 S. J. 62; 28 T. L. R. 564-C.A.
Assignment for Value without Notice —
Defence of Concealment against Assignee —
"Defence arising out of the contract."] — A
firm of siiipowners took out a policy of insur-
ance on a certain ship with the defendants,
but concealed a certain material fact from
them. They assigned this policy to the plain-
tiffs for value and without notice, in pursuance
of certain covenants. The ship was lost, and
in an action by the plaintiffs, the assignees,
to recover the policy moneys the defendants
set up the defence of the concealment of the
above material fact by the assignors : — Held,
that it was an implied condition precedent to
the liability of the defendants under the policy
that no material facts should be concealed
from them, and that breach of that condition
was a breach of the contract, and that conse-
quently the defence set up by the defendants
was a defence within the meaning of sec-
tion 50, sub-section 2 of the Marine Insurance
49
1539
SHIPPING.
1540
Act, 1906, under which the defendants were
entitled to set up " any defence arising out of
the contract " against assignees of the policy.
Pickersgill v. London and Provincial Marine
and General Insurance Co., 82 L. J. K.B. 130;
[1912] 3 K.B 614; 107 L. T. 305; 18 Com.
Cas. 1; 12 Asp. M.C. 263; 57 S. J. 11;
28 T. L. R. 591— Hamilton, J.
Over - valuation of Cargo.] — The non-
disclosure by the assured to the underwriters
of the fact that the cargo had been largely
over-valued held to avoid the policy. Gooding
V. White, 29 T. L. R. 312— Pickford, J.
VI. "HELD COVEEED" CLAUSE.
Misdescription of Interest Insured —
" Interest insured " — Second-hand Machinery
Described as Machinery — Honest Mistake or
Misapprehension of Assured — " Held covered "
Clause in Policy — Liability of Underwriters.]
— A policy of marine insurance upon
machinery, described as " machinery," against
all risks, including breakage, contained the
following clause : " In the event of . . . any
incorrect definition of the interest insured it
is agreed to hold the assured covered at a
premium (if any) to be arranged." Some of
the machinery was second-hand, but this fact
was not disclosed to the underwriters, and
was a material fact, but honestly not disclosed
by the assured in the belief that it was
immaterial : — Held, that the assured was pro-
tected by the " held covered " clause, and
could recover under the policy for a breakage
of the machinery during the voyage insured.
Held, also, that " interest insured " referred
to the subject-matter of the insurance, and
not to the insurable interest of the assured.
Heuntt V. Wilson, 84 L. J. K.B. 1337 ; [1915]
2 K.B. 739 ; 113 L. T. 304 ; 20 Com. Cas. 241 ;
31 T. L. R. 333— C.A.
Decision of Bailhache, J. (83 L. J. K.B.
1417; [1914] 3 K.B. 1131), affirmed. lb.
VII. LOSSES.
See also Vol. XTII. 1224, 2263.
Policy against Risk of Capture, Seizure, and
Detention — Detention of Ship by Belligerent
— Ship Subsequently Released — " Actual total
loss " — " Constructive total loss " — " Unlikely
to recover."] — A policy of insurance on the
plaintiffs' s.s. Polurrian was expressed to be
against " capture seizure and detention and
the consequences thereof or any attempt
thereat piracy excepted and also from all con-
sequences of hostilities or warlike operations
whether before or after declaration of war."
On October 9, 1912, the Polurrian sailed from
Newport for Constantinople with a cargo of
coal. On October 17 war broke out between
Turkey and Greece, and the Greeks declared
all fuel to be contraband of war. When the
Polurrian arrived off the entrance to the
Dardanelles on October 25 she was stopped by
Greek destroyers, taken to the Greek naval
base at Lemnos, and there detained until
November 28. The cargo of coal was taken
out of her by the Greeks and used for coaling
the Greek fleet. She was then ordered by the
Greek admiral to proceed to the Piraeus in
order to be tried by a Prize Court, but was
eventually released on December 8 without
coming before a Prize Court. The Greeks
alleged that the master of the Polurrian had
admitted when the ship was seized that he
knew of the war. The master denied that he
knew of the war or had admitted that he knew
of it to the Greeks. The plaintiffs gave notice
of abandonment to the underwriters on
October 26, and claimed for an actual or a
constructive total loss, or in the alternative
damages (inter alia) for the loss of the use of
the ship during the six weeks as a particular
average loss : — Held, by Pickford, J., that
there had not been an actual total loss of the
Polurrian within the meaning of section 57 of
the Marine Insurance Act, 1906, nor a con-
structive total loss within the meaning of
section 60, as the owners had not been
irretrievably deprived of her, nor was it at
any time unlikely that they would recover
the ship. Further, the plaintiffs were not
entitled to recover as a particular average loss
the depreciated value of the ship by reason of
her not being able to earn money during the
time she was detained. On appeal on the
question of " constructive total loss," — Held,
by the Court of Appeal, that although on
October 26 recovery of the ship was " uncer-
tain," it was not " unlikely " within section 60,
sub-section 2 (a) of the Marine Insurance Act,
1906, and that the plaintiffs could not there-
fore recover for a "constructive total loss."
Polurrian Steamship Co. v. Young, 84 L. J.
K.B. 1025; [1915] 1 K.B. 922; 20 Com. Cas.
152 ; 112 L. T. 1053 ; 59 S. J. 285 ; 31 T. L. R.
211— C.A.
Where the insured has been deprived of
the possession of his ship by a peril insured
against, the test of " unlikelihood " of
recovery is substituted by section 60, sub-
section 2 (a) of the Marine Insurance Act,
1906, for the former test of " uncertainty " of
recovery. lb.
Decision of Pickford, J. (109 L. T. 901;
30 T. L. R. 126), affirmed. lb.
Cargo — Constructive Total Loss — War Risk
— Contraband — Discharge Elsewhere than
Port of Destination.] — The plaintiffs insured
a cargo of timber on a voyage from a Baltic
port to Garston by a policy dated October 29,
1914, which was subscribed by the defendant
and was against war risk only as excluded
by the f.c. and s. clause, including risk of
mines, torpedoes, and bombs, but excluding all
claims arising from delay. The vessel started
on November 22, 1914, and on November 23
Germany declared that wood was contraband.
On November 25 a German torpedo-boat
stopped the vessel when outside the Falsterbo
lightship, and the officer informed the master
that no ships with contraband were allowed
to pass the Sound, but he might go to a
Swedish or Danish port in the Baltic, and
the master thereupon went to Stephens Klint.
a Danish port. On December 3 notice of
abandonment was given by the plaintiffs to
the defendant, but he refused to accept it.
On December 11 the master left Stephens
Klint and passed through the Sound, and
having called at Elsinore and Christiansand
1541
SHIPPING.
1542
for orders, he proceeded in accordance with
the orders to Grimstad in Norway, where he
arrived on December 15 and discharged his
cargo. The Norwegian Government placed
no obstacle in the way of the cargo being
re-shipped for England. In an action brought
on the policy upon the ground that there
had been a constructive total loss, there
was evidence that up to and including
December 3 all ships which had sailed before
November 23 had an option to proceed to
ports on the east coast of Sweden and there
discharge, and that many such ships carrying
wood had done so and tlieir cargoes had been
railed across Sweden and had reached
England : — Held, that on December 3 the
total loss of the venture was not unavoidable
and the plaintiffs were not entitled to
recover. Wilson Brothers, Bobbin d Co., v.
Green, 31 T. L. E. 605— Bray, J.
Time Policy — Total Loss — Ship Sent to Sea
with Insufficient Crew — Privity of Managing
Owner,] — The plaintiS's sued the defendants,
claiming to recover upon a time policy on the
steamship Dunsley, which was totally lost
during the currency of the policy : — Held,
that the Dunsley was unseaworthy when she
was sent on the voyage in question, inasmuch
as she was provided with an insufficient crew,
and that as she was sent on the voyage in that
condition with the privity of the plaintiffs'
managing owner, and the loss was attribut-
able to such unseaworthiness, section 39,
sub-section 5 of the Marine Insurance Act,
1906, relieved the defendants from liability
for the loss. Thomas Shipping Co. v. London
and Provincial Marine and General Insurance
Co.. 30 T. L. R. 590-C.A.
Decision of Pickford, J. (29 T. L. R. 736),
affirmed. lb.
Frozen Meat Cargo — " Warranted free from
particular average and loss unless caused by
stranding, sinking, burning, or collision of the
ship or craft " — Cargo Condemned by Sanitary
Authorities — Total Loss.] — A cargo of frozen
meat was insured " at and from Port Chalmers
to Glasgow. Risk commencing at the freezing
works and includes a period of not exceeding
60 days after arrival of the vessel." Pasted
on the face of the policy, which was also
expressed to be subject to Institute Clauses
attached " so far as they apply," was the
following clause : " Warranted free from par-
ticular average and loss unless caused by the
stranding, sinking, burning, or collision of
the ship or craft (the collision to be of such
a nature as may reasonably be supposed to
have caused or led to the damage claimed
for) . . . ; also partial loss arising from
transhipment. Including all risks of craft,
or otherwise to and from the vessel . . ."
Attached to the fly-leaf of the policy was the
following clause : " The insurance covers loss
from defective condition of the meat from
every cause (except improper dn^ssing) which
shall arise during the currency of the insur-
ance." At the inception of the risk the meat
was in good order and condition, but on arrival
at Glasgow it was in such a condition that it
was seized by the sanitary authorities and
condemned as unfit for human consumption.
This condition of the meat was not caused by
improper dressing, but it arose on board the
vessel and not from transhipment. The vessel
was not stranded, sunk, burnt, or in collision,
nor was any craft conveying the meat. In an
action to recover for a total loss under the
policy, evidence was given on behalf of the
underwriter by a number of other underwriters
to the effect that the clause, " Warranted free
from particular average and loss, unless caused
by stranding, sinking, burning, or collision
of ship or craft," &c., had a well-recognised
meaning — namely, that the policy was war-
ranted free not only from particular average
unless it was caused by stranding, sinking,
burning, or collision of ship or craft, but was
also free from loss of the subject-matter, total
or partial, unless caused in the same way : —
Held, upon the evidence that the words had
acquired that recognised meaning, and that
as the loss in question had not occurred by
stranding, sinking, burning, or collision of the
ship or craft, the defendant was not liable
on the policy. Otago Farmers' Co-operative
Association v. Thompson, 79 L. J. K.B. 692;
[1910] 2 K.B. 145 ; 102 L. T. 711 ; 15 Com.
Cas. 28; 11 Asp. M.C. 403— Hamilton , J.
Total Loss of Cargo — Constructive Total
Loss of Vessel — Civil Code of Lower Canada,
art. 2522.] — The appellants shipped on a barge
a cargo on which they effected an insurance
with the respondents against loss " by total
loss of the vessel." The vessel was wrecked
and the cargo totally lost : — Held, that the
respondents were liable on the policy —
although the jury had not found in so many
words that the barge was a total loss — as the
insurance was on the cargo, and it was not
a matter for decision whether or not the barge
was a constructive total loss within the mean-
ing of the Civil Code of Lower Canada,
art. 2522, which defines the " absolute or
constructive" loss of "the thing insured."
Montreal Light, Heat, and Power Co. v.
Sedgivick, 80 L. J. P.C. 11; [1910] A.C. 598;
103 L. T. 234 ; 11 Asp. M.C. 437 ; 26 T. L. R.
657— P.C.
Constructive Total Loss— Freight Policy-
Institute Time Clauses — Construction.] — The
plaintiffs, the assured, were insured with the
defendants under a time policy on freight per
the steamship Ivy, valued at 950Z., " chartered
or unchartered, on board or not on board, and
(or) bunker out and freight only home." There
were three separate printed sets of clauses
attached, the principal one being the " Institute
Time Clauses— Freight 1910," of which No. 5
was as follows : " In the event of total loss,
whether absolute or constructive, of the
steamer, the amount under-written by this
policy shall be paid in full, whether the
steamer be fully or only partly loaded, or in
ballast, chartered or unchartered." During
the course of the voyage the vessel became a
constructive total loss, but was subsequently
towed to a port where she discharged her
cargo, and the plaintiff received payment of
freight. In an action to recover the full
amount of the policy, — Held, that the under-
writers were entitled to credit for the amount
of the freight received by the assured. Coker
1543
SHIPPING.
1544
V. Bolton, 82 L. J. K.B. 91; [1912] 3 K.B.
315; 107 L. T. 54; 17 Com. Cas. 313;
12 Asp. M.C. 231; 56 S. J. 7-51— Hamilton, J.
Cost of Repairs — Value of Wreck.] — In
determining whether under section 60, sub-
section 2 of the Marine Insurance Act, 1906,
there has been a constructive total loss of a
vessel, the unrepaired value of the wreck ought
not to be taken into account. Macbeth £ Co.
V. Maritime Insurance Co. (77 L. J. K.B. 498;
[1908] A.C. 144) considered. Hall v. Hay-
man, 81 L. J. K.B. 509; [1912] 2 K.B. 5; j
106 L. T. 142 ; 17 Com. Cas. 81 ; 12 Asp. M.C. |
158; 56 S. J. 205; 28 T. L. E. 171— Bray, J.
Vin. ASSIGNMENT.
See also Vol. XIII. 1311, 2280.
Defence of Concealment of Material Facts
by Original Assured — Innocent Assignee.] —
Under section 50, sub-section 2 of the Marine
Insurance Act, 1906, underwriters are entitled,
as against an innocent assignee of a policy of
marine insurance, to set up the defence of
concealment of material facts on the part of
the person by or on whose behalf the policy
was effected. Pickersgill v. London and
Provincial General Insurance Co., 82 L. J.
K.B. 130; [1912] 3 K.B. 614; 107 L. T. 305;
18 Com. Cas. 1 ; 57 S. J. 11 ; 28 T. L. R. 591
— Hamilton, J.
IX. SUBROGATION.
See also Vol. XIII. 1-813, 2281.
Valued Policy on Ship — Total Loss of In-
sured Vessel by Collision — Payment for Total
Loss by Underwriters — Damages Paid by
other Vessel on Higher Value of Ship than
Insured Value — Right of Underwriters to be
Subrogated to Insured in Respect of such
Sum.' — Underwriters insured the defendants'
ship Helvetia for one year from May 20, 1912,
for 45,000/. against ordinary sea perils. In
the policy, which contained the usual running-
down clause, the Helvetia was valued at
45,000L At the date of the policy the Helvetia
was under a charter for seven St. Lawrence
seasons, which charter would not expire till
November, 1917. During the currency of the
policy the Helvetia collided with the Empress
of Britain and was totally lost. In an
Admiralty action both ships were held to
blame, the Helvetia for seven-twelfths of the
damage and the Empress of Britain for five-
twelfths. The Registrar assessed the value of
the Helvetia as at November 15, 1912, at
65,000L, and the loss of the hire up to the
same period at 2,000L On appeal the Presi-
dent held that the value of the ship and the
loss of the hire must be assessed as at
November, 1917, and remitted the case to the
Registrar. The parties then compromised and
agreed on a lump sum of 67,0002. in respect of
both items. The owners of the Empress of
Britain accordingly paid to the defendants
five-twelfths of 67,000i. The underwriters,
having paid 45,0001. for a total loss of the
Helvetia, claimed to be subrogated to such
part of the payment received by the defendants
from the owners of the Empress of Britain as
represented five-twelfths of the value of the
Helvetia, which they alleged to be worth
65,000L — namely, to the sum of 26,900L — and
to recover the excess of that sum over 19,600/.
which the underwriters were admittedly liable
to pay to the defendants under the running-
down clause. The defendants contended that
the underwriters were only entitled to be
subrogated in respect of five-twelfths of
45,000/., the insured value of the Helvetia : —
Held, that the underwriters were entitled to
recover to the extent to which they had paid in
respect of the subject-matter insured any sums
which the defendants had received in respect of
the loss of the same subject-matter, though
that sum was based upon a larger value than
the insured values. Held, further, that as the
underwriters only insured the ship for one year
they were not concerned with the value of the
ship in 1917, and that as on the evidence the
value of the ship at the time of the loss must
be taken to be 65,000/., in respect of which
the defendants had received from the owners
of the Empress of Britain 26,900/., the under-
writers were entitled to be subrogated to the
defendants to the full amount of 26,900/. and
to recover from the defendants the difference
between that sum and the 19,600/. payable
under the running-down clause. Thames and
Mersey Marine Insurance Co. v. British and
Chilian Steamship Co., 84 L. J. K.B. 1087;
[1915] 2 K.B. 214; 113 L. T. 173; 20 Com.
Cas. 265: 31 T. L. R. 275— Scrutton, .J.
Varied, 32 T. L. R. 89— C.A.
X. INSURANCE BROKERS.
See also Vol. XIII. 13-36. 2285.
Lien on Policy for Unpaid Premiums — Lien
On Proceeds of Policy — Estoppel.] — The plain-
tiffs chartered the Volturno to R. S. & Co.
under a time charter which provided that the
charterers were to insure the hull, &c., in the
owners' name for 40,000/. all risks and 20,000/.
total loss only. R. S. & Co. instructed the
defendants, who were insurance brokers, to
effect those policies and also policies on dis-
bursements and freight of the Volturno. The
defendants, at the request of R. S. & Co.,
wrote to the plaintiffs informing them of the
insurances for 40,000/. and 20,000/., and
added, "We have received instructions from
R. S. & Co. to hold the above policies to your
order, which we hereby undertake to do, sub-
ject to our lien on same for unpaid premiums,
if any " : — Held, that the defendants were
estopped from setting up against the plaintiffs
a general lien for premiums due from R. S. &,
Co. in respect of policies on the Volturno
other than those for 40,000/. and 20,000/.
Whether a lien on documents gives a lien on
proceeds collected under them, qucere. Fair-
field Shipbuilding Co. v. Gardner, Mountain
(f Co., 104 L. T. 288: 11 Asp. M.C. 594;
27 T. L. R. 281— Scrutton, J.
Relation of Broker and Underwriter— Dis-
closure of Material Facts.] — Under ordinary
1545
SHIPPING— SOLICITOE.
1546
circumstances a broker effecting a contract of
insurance with an underwriter owes no duty
to the latter in respect of erroneous but honest
statements made by him. The material facts
which have to be disclosed to an underwriter
are as to the subject-matter of the insurance
— the ship and the perils to which she is ex-
posed. Knowing these facts, the underwriter
must form his own judgment of the premium,
and other people's judgment is quite imma-
terial. If the underwriter wants to know who
the assured is he must ask the question ; there
is otherwise no duty to disclose the name.
Glasgow Assurance Corporation v. Symondson,
104 L. T. 254 ; 16 Com. Cas. 109 ; 11 Asp. M.C.
583; 27 T. L. R. 245— Scrutton, J.
SHOP HOURS ACT.
See MASTER AND SERVANT.
SLANDER.
See DEFAMATION.
SMALL HOLDINGS.
See LOCAL GOVERNMENT.
SMOKE.
See LOCAL GOVERNMENT :
METROPOLIS.
SOCIETY.
Building.] — See Building Society.
Friendly.] — See Friendly Society.
Industrial.] — See Industrial Society.
I SOLICITOR.
' A. Who May Be, 1546.
I B. Official Solicitor, 1546.
C. Certificate, 1547.
I D. Covenant not to Practise within Defined
I Area, 1547.
E. Duty and Authority of.
I I. Retainer, 1548.
II. AutJwrity, 1548.
III. Duty and Relations as to Clients,
1549.
F. Liability of Solicitor.
I. As Principal to Third Parties, 1551.
II. To Account, 1552.
III. When Acting without Authority, 15 52.
IV. Improper Proceedings and Miscon-
duct, 1553.
V. In Other Cases, 1555.
G. Summary Jurisdiction, 1555.
H. Costs.
I. Agreement as to, 1556.
II. Bill of Costs.
a. Delivery of Bill, 1557.
b. Contents of Bill, 1558.
c. Taxation.
1. Jurisdiction, 1559.
2. Practice, 1559.
3. What Sums Allowed.
a. Solicitors' Remuneration
Act, 1561.
b. In Other Cases, 1562.
4. Costs of Taxation, 1563.
5. Reviewing Taxation, 1564.
III. Modes of Receiving.
a. Charging Orders, 1565.
b. Lien, 1565.
c. Recovery and Payment, 1567.
I. Unqualified Practitioners, 1568.
A. WHO MAY BE.
Admission of Women — Disability at Com-
mon Law — Inveterate Usage.] — Prior to the
passing of the Solicitors Act. 1843, a woman
was under a disability at common law which
prevented her becoming a solicitor, and nothing
in the Solicitors Act, 1843, operated to remove
that disability. Consequently the Law Society
is entitled to refuse to admit a woman to the
examinations held bv them under the Solicitors
Act, 1877, s. 6. Bebb v. Law Society, 83 L. J.
Ch. 363; [1914] 1 Ch. 286; 110 L. T. 353;
58 S. J. 153; 30 T. L. R. 179— C.A.
B. OFFICIAL SOLICITOR.
Instructions by Court — Functions of Official
Solicitor.] — When the Court refers a matter
to the official solicitor, the instructions, if not
inserted in the order, ought to be embodied in
some document, or at least be reduced into
writing. The functions of the official solicitor
1547
SOLICITOK.
1548
with regard to instituting legal proceedings
considered. Caton, In re; Vincent v. V atelier,
55 S. J. 313— Eve, J.
C. CEETIFICATE.
See also Vol. XIII. 1406, 2292.
Refusal of Annual Certificate — Discretion —
Malice.] — In order to entitle a solicitor to
maintain an action against the Law Society
for damages for refusing to grant him an
annual certificate at the expiration of a period
of suspension from practice ordered by the
Court, it is not sufficient to shew that they
have exercised their discretion wrongly, but
it must also be shewn that they were actuated
by malice in so refusing the certificate.
Newson v. Law Society, 57 S. J. 80— C. A.
Country Certificate only — City Address on
Writ — Action Postponed. l — In a case in which
during the course of the trial it appeared that
the plaintiff's solicitor held a country certificate
only, although his address on the writ was
given as "Lombard street, E.G.," the Judge,
though holding that the solicitor was com-
mitting an offence, declined to dismiss the
action, but ordered the case to stand over so
that the plaintiff might be able to consult
another solicitor. Richards v. Bostock,
31 T. L. E. 70— Astburv, J.
D. COVENANT NOT TO PEACTISE
WITHIN DEFINED AEEA.
Agreement for Service — Restraint of Trade
— Reasonable Restriction — " Carry on the pro-
fession of a solicitor."] — A covenant by a
solicitor not to carry on the profession of a
solicitor within a certain area does not prevent
him from acting on behalf of persons resident
within the area at his office outside that area,
or from writing on behalf of clients profes-
sional letters to persons resident within the
area, or from acting on behalf of a mortgagee
resident outside the area in taking a mort-
gage of property situate within the area.
Edmundson v. Render (74 L. J. Ch. 585;
[1905] 2 Ch. 320i explained and distinguished.
Woodbridge v. Bellamy, 80 L. J. Ch. 265;
[1911] 1 Ch. 326; 103 L. T. 852; 55 S. J. 204
— C.A.
The defendant had entered the employment
of the plaintiff, a solicitor, under an agree-
ment which prohibited him from practising or
acting as a solicitor, solicitor's clerk, or con-
veyancer within a certain area during, and for
a certain time after leaving, the employment.
The defendant, after the employment was
determined, did one act which was the act of
a solicitor within the area, and wrote several
solicitor's letters to persons within the area : —
Held, that the covenant must be construed to
mean substantially acting as a solicitor, and
that there had been no breach of the agree-
ment, and that an injunction ought not to be
granted. Freeman v. Fox, 55 S. J. 650 —
Warrington, J.
E. DUTY AND AUTHOEITY OF.
I. Eetainer.
See also Vol. XIII. 1409, 2294.
Repudiation by Client — Subsequent Adop-
tion.]— A retainer to solicitors " to take such
steps as you may be advised against W. T.
and his co-trustees, in order to protect the
assets of the N.O.A.P. Trust," is a retainer
to bring an action that the trust may be
dissolved and its affairs wound up by the
Court. Stevens v. Taverner, 57 S. J. 114 —
Warrington, J.
Conflict of Evidence between Solicitor and
Client.] — On all questions as to the retainer
of a solicitor where there is a conflict as to the
authority between the solicitor and the client,
without further evidence, weight must be
given to the affidavit against, rather than to
the affidavit of, the solicitor. Eule laid down
by Turner, Y.C., in Crossley v. Crowther
(9 Hare. 384) followed. Paine {a Solicitor),
In re, 28 T. L. E. 201— Warrington, J.
n. Authority.
See also Vol. XIII. 1422, 2294.
Limit of Authority after Judgment —
Authority to Compromise — Assent to Execu-
tion by Defendant of Deed of Assignment for
Benefit of Creditors.] — A solicitor who has
been retained by a plaintiff to take the neces-
sary proceedings to recover compensation from
a defendant has no authority after judgment
has been obtained to assent to the execution
by the defendant of a deed of assignment to a
trustee for the benefit of his creditors. Where
a solicitor so assented, — Held, that the
plaintiff was not precluded from commencing
bankruptcy proceedings against the defendant,
alleging the deed of assignment as the act of
bankruptcy. Debtor (No. 1 of 1914), In re;
Debtor, ex -parte, 83 L. J. K.B. 1176; [1914]
2 K.B. 758; 110 L. T. 944; 21 Manson, 155;
58 S. J. 416— D.
Implied Authority to Issue Execution after
Judgment.] — After judgment in an action for
a money demand the solicitor for the plaintiff
has implied authority to issue execution on the
judgment, without any further or express
instructions from his client, who is bound by
and liable for the proceedings, though tortious.
Sandford v. Porter, [1912] 2 Ir. E. 551—
C.A.
Pleadings — Issue in Action — Striking out
Paragraphs of Defence — Lunacy — Receiver.]
— Where an action is commenced by a person
who is described in the writ as " a person of
unsound mind not so found by inquisition "
by a next friend, it is not competent for the
defendant to the action to put in issue at the
trial of the action the question whether the
plaintiff is of unsound mind or not. Richmond
V. Branson, 83 L. J. Ch. 749; [1914] 1 Ch.
968; 110 L. T. 763; 58 S. J. 455—
Warrington, J.
The authority of the solicitor to start pro-
ceedings is not a question which can be raised
1549
SOLICITOR.
1550
as a relevant issue in the action at the trial.
lb.
Service on Solicitor — Continuance of
Authority — Married Woman — Receiver — In-
come Restrained from Anticipation — Costs.] —
At the trial of an action the plaintiff, who
was a married woman, did not appear, and
judgment was entered for the defendants with
costs, which were to be payable out of her
separate estate. The only property to which
the plaintiff was entitled was the income
under her marriage settlement, which she was
restrained from anticipating. The defendants'
solicitors thereafter wrote to the plaintiff's
solicitors informing them that the Taxing
Master's certificate had been obtained, and
enquiring whether they had any instructions
as to payment of the costs. The plaintiff's
solicitors replied that they had no instructions
in the matter, and that they did not know the
plaintiff"s whereabouts. Subsequently, and
after the time for appealing from the judgment
had expired, the defendants served notice on
the plaintiff's solicitors that they intended to
apply for payment of the defendants' costs
out of the income due to the plaintiff under
her marriage settlement, and for the appoint-
ment of a receiver of her income up to the
amount of the costs : — Held, first, that the
notice of motion was properly served on the
plaintiff's solicitors, who were the solicitors on
the record; and secondly, that the order asked
for should be made. Bagley v. Maple,
27 T. L. E. 284— Scrutton, J.
III. Duty and Eelations as to Clients.
See also Vol. XIII. 1433, 2297.
Confidential Relationship — Employment by
Plaintiff — Subsequent Employment by Defen-
dants— Members of Same Firm — Injunction.]
—There is no general rule of law that a soli-
citor who has acted in a particular matter
for one party shall not subsequently act in the
same matter for that party's opponent. It
depends in each case on whether real mis-
chief or real prejudice is likely to result from
this being allowed. And an injunction to
restrain the solicitor from so acting will only
be granted when a risk exists or may be
reasonably anticipated that the solicitor will
give the new client assistance against his old
client by means of knowledge acquired by him
when acting as solicitor for the old client.
Cholmondeley (Earl) v. Clinton (Lord)
(19 Ves. 261; G. Cooper, 80) explained. The
decision of Hall, V.C, in Little v. Kingswood
and Parkfield Collieries Co. (51 L. J. Ch. 498;
20 Ch. D. 733) not followed. Rakusen v.
Ellis, Munday d Clarke, 81 Tj. J. Ch. 409;
[1912] 1 Ch. 831; 106 L. T. 556; 28 T. L. E.
326— C. A.
Where, therefore, one of two partners had
acted exclusively for the old client, and the
other partner was acting exclusively for the
new client, and the former partner undertook
not to conunnnicate to his partner confidential
information oljtaincd from tlie old (•li(mt, the
Court discharged an injmiction granted by
Warrington, J., restraining the firm of soli-
citors from acting for the new client. lb.
Mixing Client's Money with Solicitor's in
Banking Account.] — Observations as to the
practice of a solicitor mixing up the money of
a client with his own money. B. (a Solicitor),
In re; Law Society, ex parte, 28 T. L. H. 59
— D.
Costs — Statute-barred Debts — Acknowfledg-
ments — No Full Disclosure to Client — No
Independent Advice.] — A client owed a
solicitor certain sums of money for costs. He
had incurred these debts between 1889 and
1912, when he died. The solicitor then
obtained from his executrix, his widow, a
payment on account and two documents
acknowledging the indebtedness, but he did
not inform her that the debts were, as to a
large portion of them, statute-barred, nor did
he insist on her seeking independent advice.
In April, 1913, the executrix brought an action
against the solicitor for an account, -in which
she contended that the debts incurred prior to
April, 1907, were statute-barred, and that, in
consequence, the defendant could not recover
them. The official referee held that the
payment on account and the documents above
mentioned were acknowledgments of the debts
sufficient to take them out of the operation of
the Statute of Limitations, and entered judg-
ment for the defendant : — Held, on appeal,
that the payment on account and the docu-
ments having been obtained by the solicitor
without a full explanation of the state of affairs
and without any suggestion of independent
advice in the matter, the relation of solicitor
and client precluded them from being relied
upon as acknowledgments so as to take the
debts out of the operation of the statute.
Huguenin v. Baseley (14 Ves. 273) and Liles
V. Terry (65 L. J. Q.B. 34; [1895] 2 Q.B.
679) applied. Lloyd v. Coote ,(■ Ball, 84 L. J.
K.B. 567; [1915] 1 K.B. 242; 112 L. T. 344
— D.
Affidavit for Probate.] — The inclusion of a
statute-barred debt in the affidavit for pro-
bate did not constitute, as between the
parties, an acknowledgment of the debt suffi-
cient to take it out of the Statute of Limita-
tions. Beaven, In re; Davies, Banks it Co.
V. Beaven (81 L. .7. Ch. 113; [1912] 1 Ch.
196), followed. 7b.
Transactions between Law Agent and Wife
of Client — Wife Acting without Separate
Advice — Loss of Moneys Advanced by Wife
— Claim against Law Agent for Damages.] —
A law agent acted for a client who was a
partner in a firm, and also made tiie firm
advances personally. He was, besides being
a solicitor, the agent for the branch bank
where the firm's banking account was kept,
and in that capacity made advances to the
firm and overdrafts. He also acted as soli-
citor for his client's wife, who had property
of her own. To assist her husband the wife
made advances to the firm, and became surety
in various transactions, in which money was
advanced to her husband either by way of
overdraft from the bank or from the law agent
personally. During tliese transactions the
wife had no separate advice. The firm became
insolvent, and the wife, having lost all her
1551
SOLICITOK.
1552
money, brought an action against the law
agent, alleging negligence on his part as her
solicitor. The Lord Ordinary took the view
that the case was the common one of a wife
with separate means being induced by her
husband to assist him to keep the business
afloat. There was no evidence of any unfair
dealing on the part of the defendant, and
therefore he gave judgment for him. The
First Division of the Court of Session (the
Lord President, Lord Kinnear, and Lord
Mackenzie ; Lord Johnston dissenting) aiSrmed
the Lord Ordinary. Tlie House dismissed the
plaintiff's appeal. Decision of First Division
of the Court of Session ([1911] S. C. 1248)
affirmed. Learoyd or Dick v. Alston's
Trustees, [1913] A.C. 529; [1913] S. C.
(H.L.) 57; 57 S. J. 684— H.L. (Sc.)
Advice by Solicitor on Choice of Investment
— Liability for Loss on Investment.] — A young
unmarried woman consulted a friend, who
was a solicitor, with regard to the investment
of her savings amounting to 20UZ., and he
suggested to her that she might invest that
sum in heritable property, either by purchas-
ing property or by lending on bond. She
decided on the former method, and he then
brought to her notice, and eventually pur-
chased for her, a heritable property belonging
to a client of his own, which was burdened
with bonds for which she became personally
liable. The nature of the transaction was
explained to her before the purchase was con-
cluded. The solicitor acted for both parties to
the sale. The investment, which at first
yielded excellent returns, eventually, owing to
depreciation in the value of the property,
resulted in a heavy loss, and the client brought
an action for damages against the solicitor for
improperly advising her to make an invest-
ment of so risky a character : — Held, that in
the circumstances there had been no failure
of professional duty on the part of the solicitor
towards his client, and that the action there-
fore failed. Stewart v. M'Lean, Baird d-
Neilson, [1915] S. C. 13— Ct. of Sess.
F. LIABILITY OF SOLICITOE.
I. As Principal to Third Parties.
See also Vol. XIII. 1442, 2300.
Solicitor Ordering Photographs on Behalf of
Client — Personal Responsibility.] — Where, in
a cash transaction, a solicitor orders goods
on behalf of a client, unless it is to be assumed
that the solicitor has no authority to pledge
his client's credit, the solicitor is not person-
ally liable for the payment thereof unless he
specifically agrees to be responsible, or unless
there is a custom that he should be responsible.
A firm of solicitors ordered of the plaintiff, on
behalf of their client (without disclosing his
name), some photographs to be taken for use
at a trial in Court. The plaintiff delivered
the photographs to the solicitors, and debited
them with the price in his books : — Held, that
the solicitors were not personally responsible
for pavment. Wakefield v. Duckworth.
84 L. J. K.B. 335; [1915] 1 K.B. 218;
112 L. T. 130; 59 S. J. 91; 31 T. L. R. 40
— D.
II. To Account.
See also Vol. XIII. 1447, 2300.
Receipt of Money for Client — Demand of
Principal — Liability for Interest.] — Where
money has been received by a solicitor to pay
over to his client on a particular date,
although the solicitor is not chargeable with
interest from that date, yet when a demand
for payment of the principal has been made
the solicitor must pay interest as from the
date of the demand. Barclay v. Harris,
85 L. J. K.B. 115 ; 112 L. T. 1134 ; 31 T. L. R.
213 — Shearman, J.
III. When Acting without Authority.
See also Vol. XIII. 1450, 2301.
Solicitor Believing He had Authority.] —
Circumstances in which a solicitor having
entered an appearance and taken other steps
in a litigation on behalf of certain defendants
for whom he had in fact no authority to act,
although he bona fide believed that he had
authority, was ordered to pay their costs of
setting aside the appearance and all subse-
quent proceedings as between solicitor and
client, and the plaintiff's costs of the applica-
tion as between party and party. Forter v.
Fraser, 29 T. L. R. 91— Neville, J.
Entering Appearance for Non-existing Com-
pany— Warranty of Authority — Personal Lia-
bility of Solicitor for Plaintiff's Costs of
Action.] — The plaintiff issued a writ against
Liberal Opinion, Lim., claiming damages for
libel, and obtained a verdict for damages and
costs. An appearance for the company had
been entered by D., a solicitor, and proceed-
ings conducted on their behalf by D. or his
firm, who were under the erroneous belief that
the company had been duly incorporated, and
who received instructions from persons pur-
porting to act as directors. In the course of
the proceedings the plaintiff's solicitors wrote
to D., calling his attention to the fact that
they had searched Somerset House and
could not find any such company as Liberal
Opinion, Lim., to which D. replied by recom-
mending them to continue their searches. At
the commencement of the trial it was stated
that the company was registered under the
Industrial Provident Societies Act, 1893, but
it was afterwards ascertained and became
known to both D. and the plaintiff that the
registration had not in fact been completed,
so that there was no such corporation in
existence. At the conclusion of the trial the
plaintiff applied to the Judge for an order
making D. or his firm, the company's soli-
citors, personally responsible for the plaintiff's
costs of the action. Darling, J., refused the
application, and the plaintiff appealed. The
plaintiff had signed judgment for damages and
costs against Liberal Opinion, Lim. : — Held
(reversing Darling, J.), that D., having
entered appearance for a non-existing corpora-
tion, was responsible for the plaintiff's costs
of the action, and that the fact that the
plaintiff had signed judgment in the only way
in which it could be signed — that is, against
1553
SOLICITOK.
1554
the non-existing corporation — did not alter the
position. Sim7nons v. Liberal Opinion, Lim. ;
Dunyi, In re, 80 L. J. K.B. 617: | I'.illl 1 K.T..
966 ; 104 L. T. 264 ; 55 S. J. 315 ; 27 T. L. R
27&— C.A.
IV. Improper Proceedings and Misconduct.
See also Vol. XIII. 1459, 2302.
Solicitor Commencing Action on Behalf of
Infant — Next Friend an Infant — Setting
Aside Writ — Liability for Costs.] — A solicitor
commenced an action on behalf of an infant
by a next friend, who was himself an infant :
— Held, that the action must be set aside, and
that the defendants (other than those inducing
the appointment) were entitled to damages to
be paid by the plaintiff's solicitors, such
damages being the costs they had incurred in
defending the action, including the costs of
the application, as between solicitor and client.
Fernee v. Gorlitz, 84 L. J. Ch. 404; [1915]
1 Ch. 177; 112 L. T. 288-Eve, J.
Champertous Agreement with Client —
Speculative Action — Personal Liability of
Solicitor for Costs.] — A solicitor acting for a
client in reference to a claim against a bank
wrote to the client as follows : " Inasmuch as
you have agreed to pay me 25 per cent, of
whatever you may succeed in recovering . . .
I agree that such percentage shall cover all
my costs and expenses in any action . . .
taken in respect of your claim, and in the
event of your failing to recover anything I
undertake to make no claim against you for
my costs or charges." A writ was issued
against the bank, but from a very early period
in the action the solicitor knew that there
was no substance in the claim. Eventually
the client withdrew her claim and judgment
was entered for the bank, with costs. The
costs not being paid by the client, the bank
sought to make the solicitor personally liable :
— Held, that the agreement between the
solicitor and the client was champertous and
illegal ; that the solicitor had been guilty of
misconduct as a solicitor; and that he must
pay the bank's costs in the action inasmuch
as these would not have been incurred but
for his conduct. Danzey v. Metropolitan
Bank, 28 T. L. R. 327— Darling, J.
Attempt to Obtain Information from Books
of a Company — Offer of Remuneration to Com-
pany's Servant.] — A solicitor who endeavours
to ol)trtiii information as to unclaimed stocks
and dividends of a company by an offer to
remunerate a subordinate servant of that
company, in return for the information de-
sired is guilty of professional misconduct.
C. (a Solicitor), In re; Law Society, ex parte,
56 S. J. 93-D.
Professional Misconduct — \tfhat Amounts to
—Abetting the Publication of False Informa-
tion Purporting to come from Convict under
Sentence of Death. 1— The jurisdiction of the
Court to pnnisli a solicitor for misconduct is
not confined to cases in which he may have
been acting in the course of his professional
practice; it has power to punish him if he has
been guilty of dishonourable conduct which
makes him unfit to be a member of an honour-
able profession and an officer of the Court,
or which would be sufficient to prevent his
admission as a solicitor. The respondent, in
the capacity of legal adviser to a convict
under sentence of death, was permitted to
visit the convict in prison. In abuse of the
privilege thus extended to him he aided and
abetted the editor of a newspaper to dis-
seminate in his journal false information in
the form of a letter purporting to emanate
from and to be written by the convict
although, as the respondent knew, no such
letter in fact existed ; and he further pub-
lished or permitted to be published other
false statements relating to the same matter
knowing them to be false : — Held, that the
respondent had been guilty of professional
misconduct within the meaning of the Solici-
tors Act, 1888. Solicitor, In re; Law Society,
ex parte, 55 S. J. 670; 27 T. L. R. 535— D.
Partnership with Unqualified Persons —
"Touting" amongst Prisoners.] — A solicitor
purported to act for, and subsequently to
employ, unqualified persons. He allowed them
to carry on a business in his name, in the
course of which they solicited money from the
friends of prisoners, and obtained permission
to see prisoners awaiting trial, with offers of
legal assistance. The solicitor exercised no
supervision over them, but received various
sums as his share of profits : — Held, that the
solicitor was guilty of professional misconduct.
D. (a Solicitor), In re; Law Society, ex parte,
56 S. J. 93-D.
Finding of Law Society — Standard of
Professional Conduct.] — If it is shewn that a
solicitor, in the pursuit of his profession, has
done something with regard to it which would
be reasonably regarded as disgraceful or dis-
honourable by his professional brethren of good
repute and competency, the Law Society will
be justified in finding that he has been guilty
of misconduct within the meaning of section 13
of the Solicitors Act, 1888, and the standard
of professional conducted adopted by the
society will be that of the Court. G. (a
Solicitor), In re; Laio Society, ex parte,
81 L. J. K.B. 245; [1912] 1 K.B. 302;
105 L. T. 874; 56 S. J. 92; 28 T. L. R. 50
— D.
Definition of professional misconduct in
.illinson v. General Medical Council (63 L. J.
Q.B. 534. at p. 540; [1894] 1 Q.B. 750, at
p. 763) adapted. Ih.
Solicitor's Interest in Debt-collecting
Business — Champertous Arrangement. 1 — The
Tjaw Society found that the respondent by his
interest in and connection with a debt-
collecting association had been guilty of
professional misconduct : — Held, that this
finding was right, but that as the respondent,
on becoming aware that his connection with
the association was unprofessional, at once
severed his connection with it, it was sufficient
to order him to pay the costs of the proceed-
ings. Solicitor, In re, Law Society, ex parte,
29 T. L. R. 354— D.
1555
SOLICITOE.
1556
Using Testimonials from Judges in Order
to Obtain Business.] — A committee of the
Incorporated Law Society reported that A., a
solicitor practising in Dublin and Belfast, -with
a view of obtaining business from an insurance
company, some of which business would in all
probability take place in the Courts of the
Eecorders of Dublin and Belfast, wrote to the
manager of the company, inclosing copies of
testimonials from the Eecorders of those cities
testifying to A's professional ability. These
testimonials had been obtained by A for the
purpose of an application by him for an
appointment. The testimonial from the
Recorder of Dublin contained the statement,
" He [A] now practises before me regularly."
In the testimonial from the Recorder of
Belfast it was stated that A had acted as his
registrar for a number of years, and had
resigned, to his regret, and that he continued
to act as his solicitor : — Held, that the use by
A of these testimonials for the purpose of
obtaining business, which business might lead
him to practise before the Recorders of Dublin
and Belfast, amounted to professional mis-
conduct. Solicitor, In re, [1915] 1 Ir. R. 152
— L.C.
The nature of proceedings before the com-
mittee considered. 7b.
V. In Other Cases.
See also Vol. XIII. 1485, 2304.
Undertaking to Refund Costs — Money Re-
ceived by Client — Solicitor Ordered to Repay.]
— An order dismissing an action with costs
directed the money paid into Court by the
plaintiff as security to be paid to the defen-
dant's solicitors on account of their costs, they
undertaking to refund if directed by the Court
of Appeal. The schedule to the order directed
payment to the defendant personally. The
defendant changed his solicitors, and received
the money out of Court by virtue of the
schedule. The appeal was afterwards allowed
with costs, but no costs of trial on either side :
— Held, that the solicitors could be ordered
upon motion to refund the money so received
by their late client, in pursuance of their
undertaking. Dotesio v. Biss {No. 2), 56 S. J.
736— C. A.
G. SUMMARY JURISDICTION.
See also Vol. XIII. 1490, 2304.
Undertaking not Given in Legal Proceedings
nor to Client — Enforceability — Disciplinary
Jurisdiction of Court.; — An undertaking given
by a solicitor in his capacity as such is
enforceable under the summary disciplinary
jurisdiction of the Court, although such under-
taking was not given in any legal proceedings
nor to the solicitor's own client, and although
no discreditable conduct on the part of the
solicitor is suggested. Peart v. Bushell
(2 Sim 38) not followed. United Afinupg and
Finance Corporation v. Becker, 79 L. .J. K.B.
1006: [1910] 2 K.B. 296: 103 L. T. 65—
Hamilton, J. Appeal compromised, 80 L. J.
K.B. 686; [1911] 1 K.B. 840— C.A.
Officer of the Court — Person Acting as Soli-
citor— Estoppel.] — A person who, though not
a solicitor, has gained possession of a sum of
money that has been ordered to be paid into
Court by intervening in the business of a
solicitor, but without representing himself to
be a solicitor, cannot be ordered to pay the
money into Court under the summary juris-
diction that the Court exercises over its own
officers. Huhn d Lewis, In re (61 L. J. Q.B.
502; [1892] 2 Q.B. 261), distinguished. Hurst
and Middleton, Lim.. In re; Middleton v. The
Company, 82 L. J. Ch. 114; [1912] 2 Ch. 520;
107 L. T. 502; 56 S. J. 652; 28 T. L. R. 500
—C.A.
Committal for Contempt of Court — Notice of
Motion, how Intituled — Solicitor and Clerk.]
— It is not necessary in the heading of a notice
of motion to commit a solicitor and his clerk
for contempt of Court in interfering with the
administration of justice at the hearing of
certain proceedings before a Taxing Master
to head the motion in the matter of the clerk
as well as in the matter of the taxation. The
case of O'Shea v. O'Shea (59 L. J. P. 47;
15 P. D. 59) is not an authority for the con-
trary proposition. Semble, that the Court
could give immediate leave to amend the
notice if necessary by adding the name of the
clerk to the title under Order XXVIII. rule 12.
Law (or Harnett d Co.), In re, 58 S. J. 656 —
Sargant, J.
In Respect of Professional Misconduct.] —
See cases sub tit. Improper Proceedings and
Misconduct (supra).
H. COSTS.
I. Agreement as to.
See also Vol. XIII. 1528, 2309.
Agreement to take Percentage of Sum Re-
covered— Non-contentious Proceeding — Cham-
perty.]— An agreement between a client and
solicitor whereby the latter is to be remu-
nerated by a percentage of a sum to be
recovered in a matter that is not a suit,
action, or contentious proceeding, though not
champertous, will be strictly regarded by the
Court, which, in considering its propriety,
will have regard to whether the client had
independent advice, and fully understood the
purport of the agreement. HoggarVs Settle-
ment, In re, 56 S. J. 415— Joyce, J.
Bill of Exchange for Agreed Costs— Pay-
ment to be Delayed for Two Years — Bill Dis-
honoured—Right to Delivery of Bill of Costs
— Examination of Agreement — Practice —
" Fair and reasonable."] — Where a client has
entered into an agreement with his solicitor
as to the amount to be paid in respect of costs,
without obtaining delivery of a bill of costs,
and he subsequently establishes a prima facie
case to shew that the agreement is unreasonable,
the Court will order delivery of the bill of
costs and an examination of the agreement
under the Attorneys and Solicitors Act,
1870, s. 4, and the Solicitors' Remuneration
Act, 1881, s. 8, even though the solicitor has
obtained from his client the acceptance of a
1557
SOLICITOE.
1558
bill of exchange for the amount of the agreed
costs and is suing on the dishonoured bill.
Ray V. Neivton, 82 L. J. K.B. 125: [1913]
1 K.B. 249; 108 L. T. 313; 57 S. J. 130—
C.A.
Champertous Agreement.] — See Danzey v.
Metropolitan Bank, ante, col. 1553.
II. Bill op Costs.
a. Delivery of Bill.
See also Vol. XIII. 539, 2310.
Agreement in Writing — Summons to Set
Aside.] — One C, who had embezzled a large
sum of his employers' money, and who had
been prosecuted, gave a retainer to a solicitor
in the following terms : " I retain and request
you to defend me in the criminal proceedings
instituted against me by P. & Co., and I agree
that you shall receive the net proceeds of sale
of my furniture to cover the law charges and
disbursements of my defence." The furniture,
when sold, realised, after deducting expenses,
the sum of 436L, which sum the solicitor
received. Subsequently civil proceedings were
brought against C. by P. & Co. to recover the
sum he had embezzled, and C. gave the follow-
ing retainer to the solicitor : "I request and
retain you to act for me as my solicitor in the
above action at the inclusive fee of one
hundred guineas, such fee to cover all dis-
bursements until final judgment." The
solicitor signed a statement at the foot accept-
ing the retainer at the figure stated, which he
acknowledged to have received. He had pre-
viously collected and retained in his possession
a sum of lOOZ., which another person owed to
C. At the trial C. pleaded guilty, and was
sentenced to a term of penal servitude. Before
his conviction C. conveyed all his property to
the liquidator of P. & Co. An administrator
of C.'s property was subsequently appointed
by the Home Secretary, and more than twelve
months after C.'s conviction he took out a
summons to set aside the two agreements, and
for delivery by the solicitor of a bill of costs.
The solicitor contended that the matter was
closed by payment more than twelve months
previously, and that it therefore could not now
be re-opened : — Held, that the retainer with
regard to the criminal proceedings was not an
agreement within section 4 of the Attorneys
and Solicitors Act, 1870, and that the solicitor
must deliver a bill of costs relating to that
transaction ; that the retainer with regard to
the civil proceedings was an agreement within
section 4 of the Act of 1870, liut that there
must be an encjuiry by the Master as to
whether or not there had been payment under
it. Jackson, In re, 84 L. J. K.B. 548; [1915]
1 K.B. 371; 112 L. T. 395; 59 S. J. 272;
31 T. L. R. 109— D.
Order for Payment of Costs — Enforcement
by Action — Motion for Attachment for Non-
delivery of Bill of Costs.]— Upon an applica-
tion in the. Chancery Division for an attach-
ment against the defendant, a solicitor, for
non-delivery of his bill of costs for taxation,
the Court made a peremptory order for delivery
of the bill of costs, and ordered the defendant
to pay the taxed costs of the application. The
costs having been taxed, — Held (Vaughan
Williams, L.J., dissenting), that an action
lay in the King's Bench Division on the order
to recover the amount of the taxed costs.
Seldon v. Wilde, 80 L. J. K.B. 282; [1911]
1 K.B. 701 ; 104 L. T. 194— C.A.
b. Contents of Bill.
See also Vol. XIII. 1550, 2311.
Bill Including both Party and Party Items
already Taxed and also Solicitor and Client
Items — Right of Client to Taxation of Soli-
citor and Client Items only — Fee on Taxation
— Whether Chargeable in Respect of Items
already Taxed.] — The bill of costs delivered
by his solicitor to the successful party in an
action should contain not only the solicitor
and client items, but also the party and party
items, even though these latter items have
already been taxed and paid by the opposite
party ; and the Court ought not to limit the
order for taxation of such a bill to the solicitor
and client items only, merely on the ground
that the party and party items have already
been taxed as between party and party.
Osborn d Osborn, In re, 83 L. J. K.B. 70;
[1913] 3 K.B. 862; 109 L. T. .505— C.A.
Per Vaughan Williams, L.J. : On taxation
of a bill of costs delivered by a solicitor to his
client which contains both solicitor and client
items and taxed party and party items, the
present practice of charging a taxing fee in
respect of the whole bill should be discontinued,
and a fee ought only to be charged in respect
of the solicitor and client items and such of
the party and party items as require to be
taxed a second time. Ih.
" Cash account " — Alleged Insufficient
Identity — Liability on Solicitor to Furnish
Particulars when Vouching Account.] — A
solicitor acted for a client in the administra-
tion of her father's estate and business. He
also acted as her personal solicitor and pro-
fessionally in other family matters with which
she was concerned. In a cash account which
the solicitor delivered several items appeared
as " cash " merely. The client claimed that
a further and better " cash account " should
be rendered, alleging that the items in question
were insufficient to enable her to identify
the payments so as to appropriate them to the
different accounts, but the application was re-
fused by the Judge in chambers : — Held, that
as it was the practice of the taxing officers to
accept cash accounts in this form, subject to
their being properly vouched at a later date,
and it was shewn that justice could thus be
done between the parties, the refusal of the
application was a matter of discretion, and the
Court would not interfere with the order made
by the Judge at chambers. Ilarman, In re,
5J S. J. 351- C.A.
Disbursements not Paid before Delivery of
Bill.] — A solicitor delivered to his client his
bill of costs, together with an accompanying
letter. The bill included certain items of dis-
bursements in respect of counsel's fees and
printers' charges, which had not then been
paid by the solicitor, and these items were not
set out under a separate heading in the bill,
1659
SOLICITOK.
1560
but included among the other items in order
of date. The letter stated that the unpaid
items consisted of counsel's fees and printers'
charges, of which it gave the respective totals :
— Held, that, even assuming that the letter
could be read as part of it, the bill did not
" set out such unpaid items of disbursements
under a separate heading in the bill " within
the meaning of Order LXV. rule 27 (29a).
Hildesheim, In re, 84 L. J. K.B. 1: [1914]
3 K.B. 841; 111 L. T. 749; 58 S. J. 687— C. A.
c. Taxation.
1. Jurisdiction.
See also Vol. XIII. 1553, 2313.
Winding-up of Company — Order for Taxa-
tion.]— \Yhere the Court, m the winding-up of
a company, has made an order against a firm
of solicitors, without objection by them, for the
delivery of a bill of costs against the company
for a period antecedent to the winding-up, and
the bill as delivered shews a balance due from
the solicitors to the company, the Court can
make an order for the taxation of the bill in
the winding-up proceedings, and the solicitors
have no right to insist that the bill should be
taxed under the Solicitors Act, 1843, or not at
all. Palace Restaurants, Lim., In re, 83 L. J.
Ch. 427; [1914] 1 Ch. 492; 110 L. T. 534;
21 Manson, 109; 58 S. J. 268; 30 T. L. R. 248
— C.A.
Non-contentious Business — Manchester Dis-
trict Registry. 1 — The proper officer to whom a
solicitor's bill of costs for non-contentious busi-
ness should in a proceeding in the Manchester
District Registry be referred is not the District
Registrar, but a Master of the Supreme Court.
Stead V. Smith, 81 L. J. K.B. 68; [1911]
A.C. 688; 105 L. T. 120: 55 S. J. 616—
H.L. (E.)
2. Practice.
See also Vol. XIII. 1576, 2316.
Disbursements — Disbursements not Paid by
Solicitor before Delivery of Bill — Payment
after Commencement of Proceedings for Taxa-
tion but before any Item Dealt with — Payment
whether " before the commencement of the
taxation" — Accompanying Letter Read as
Part of Bill — Items whether "set out . . .
under a separate heading in the bill."] — A
client having obtained an order for the taxation
of his solicitor's bill, the Taxing Master
appointed a certain date for the taxation to
proceed. On that date the parties attended
before the Taxing Master, w'ho was asked on
behalf of the client to disallow certain items
of disbursements included in the bill on the
ground that they had not been paid by the
solicitor before the delivery of the bill. The
Taxing Master on the application of the
solicitor adjourned the appointment to the
following day to give the solicitor an oppor-
tunity of paying these items before he pro-
ceeded to tax the bill. At the time of the
adjournment the Taxing Master had not dealt
with any item in the bill by way of taxation.
The solicitor duly paid the items before the
Taxing Master proceeded with the taxation
on the following day : — Held, that the items
of disbursements had been paid " before the
commencement of the taxation " within the
meaning of the proviso to Order LXV.
rule 27 (29a). Hildesheim, In re, 84 L. J.
K.B. 1; [1914] 3 K.B. 841; 111 L. T. 749;
58 S. J. 687— C.A.
In Order LXV. rule 27 (29a), which
provides for the allowance on taxation in
certain cases of items of disbursements which
have not been actually paid by the solicitor
before the delivery of the bill of costs, the
words in the proviso to the sub-rule " so set
out in the bill " refer back to the requirement
in the body of the sub-rule that the bill of
costs " shall set out such unpaid items of dis-
bursements under a separate heading in the
bill," and consequently in a case coming under
the proviso, just as in a case coming under the
body of the sub-rule, that requirement must
be complied with. lb.
Bankruptcy of Client — Undertaking by
Solicitor not to Prove.] — When a client who
has obtained an order to tax his solicitor's bill
of costs becomes bankrupt, his assignees, if
the solicitor undertakes not to prove in the
bankruptcy for the costs, cannot continue the
taxation without giving an undertaking to pay
the taxed amount of the bill. Merrick, In re;
Joyce, ex parte, [1911] 1 Ir. R. 279— C.A.
Application to Tax after Payment — Special
Circumstances.] — The fact that a solicitor's
bill of costs contains charges open to criticism
amounts to " special circumstances " within
the meaning of section 41 of the Solicitors
Act, 1843, so as to entitle an interested party
to an order for taxation after payment of the
bill. N. (a Solicitor), In re, 56 S. J. 520—
Joyce, J.
Reference after Twelve Months — Company
— Voluntary Liquidation.] — A company went
into voluntary liquidation. A bill of costs was
delivered by their solicitors to the company
less than twelve months before the liquidation.
The liquidator took out a summons to tax
more than twelve months after delivery of the
bill : — Held, that since delivery twelve months
had not expired within the meaning of sec-
tion 37 of the Solicitors Act, 1843, the date of
the winding-up, not the issue of the summons,
being the material date. Foss, Bilbrough,
Plaskitt ,(■ Foss, In re, 81 L. J. Ch. 558;
[1912] 2 Ch. 161; 106 L. T. 835; 56 S. J. 574
— Neville, J.
Taxation under General Jurisdiction of
Court.] — An order for taxation of solicitor's
costs in the voluntary liquidation of a com-
pany, as in a compulsory liquidation, should
be made under the general jurisdiction of the
Court independently of the Solicitors Act,
1843. No submission to pay is required, and
as a general rule the solicitor may add the
costs of the taxation to his claim. The
practice laid down by Kekewich, J., in Liver-
pool Household Stores Association, In re
([1889] W. N. 48), followed. lb.
1561
SOLICITOR.
1562
3. What Sums Allowed.
a. Solicitors' Remuneration Act.
See also Vol. XIII. 1617, 2321.
Same Solicitor Acting for Both Vendor and
Purchaser — Right to Full Scale Fee.] —
Solicitors, acting for a vendor of lands sold
by public auction, subsequently acted for the
purchaser also. The sale having been com-
pleted, they served the purchaser with a bill
of costs, in which they charged him with the
scale fee provided by Schedule I. Part I. of
the General Order, 1884, under the Solicitors'
Eemuneration Act, 1881. Objections to the
bill of costs were lodged by the purchaser, on
the ground that the solicitors " could not pro-
perly and necessarily, and having regard to
their duty as solicitors for both vendor and
purchaser, perform all the work prescribed by
Schedule I. Part I. so as to entitle them to the
scale remuneration." The Taxing Master dis-
allowed the objections, finding that " the
solicitors for the purchaser did all the work
required under the schedule on his behalf."
On a summons to review, — Held, that, in view
of the Taxing Master's finding of fact, no
sufi&cient grounds had been shewn for review-
ing his decision. Best cfi Best, In re, [1915]
1 Ir. R. 58— Barton, J.
Sale under Lands Clauses Act — Costs of
Purchaser's Solicitor.] — The scale in
Schedule I. Part I. of the Irish General Order
of 1884, made under the Solicitors' Remunera-
tion Act, 1881, does not apply to the costs of
the solicitor for the purchaser in sales under
the Lands Clauses Consolidation Act. Stewart,
In re (41 Ch. D. 494). distinguished. Fitz-
gerald, In re (No. 2), [1915] 1 Ir. E. 185—
Barton, J.
Mortgage to Bank — Amount not Named in
Mortgage — " Completed mortgage."] — The
scale fixed by Schedule I. Part I. under
rule 2 (a) of the General Order made in pur-
suance of the Solicitors' Remuneration Act,
1881, applies to an equitable mortgage, even
though such mortgage be not under seal and
contain an agreement to execute a further and
legal mortgage, so long as the work contem-
plated by the scale has been done by the
solicitor. Baker, In re, 81 L. J. Ch. 805;
[1912] 2 Ch. 405 ; 106 L. T. 1012— Parker, J.
Although a mortgage given to secure money
which may or may not be advanced at the
option of the lender, and which is uncertain in
amount, is not within the scale because the
transaction is not "completed," yet an agree-
ment for a loan for a definite amount payable
in prcesenti upon certain securities is a " com-
pleted " transaction within the meaning of
the word as used in the scale and Order, if in
fact, within a reasonable time after the date
of the actual signing of the memorandum of
charge, the sums are actually advanced; and
the mere fact that the memorandum of charge
does not specify the definite amount which
was agreed upon and is to be secured does not
alter this. The Court is entitled to look at
the substance of the transaction, and is not
tied down by the form which the security
takes. Ih.
Attempted Sale — Scale or Item Charges.] —
Where property is put up for sale and is not
sold, the vendor's solicitor is entitled to charge
for the work done by items and not by scale.
Stead, In re; Smith v. Stead, 82 L. J. Ch.
143; [1913] 1 Ch. 240; 108 L. T. 28; 57 S. J.
187— Neville, J.
Rule 2 of Part I. Schedule I. to the General
Order under the Solicitors' Remuneration Act,
1881, is applicable only where one or more
attempted sales are followed by a completed
sale of the property. lb.
b. In other Cases.
See also Vol. XIII. 1637, 2325.
Local Authority — Legality of Charges —
Province of Taxing Master — Province of
Auditor.] — Disbursements made upon the in-
structions of an urban council by their solici-
tors, the reasonableness of the amount of the
charges not being disputed, cannot be dis-
allowed upon a taxation as between solicitor
and client under the Solicitors Act, 1843.
Porter, Amphlett d- Jones, In re, 81 L. J. Ch.
544; [1912] 2 Ch. 98; 107 L. T. 40; 56 S. .1.
521 — Swinfen Eady, J.
The legality of the expenditure as between
the council and their ratepayers is a question
for the auditor under the provisions of the
Public Health Act, 1875, ss. 247, 249. lb.
Mortgagee — Charges in Anticipation of
Future Work — Explanatory Bill.] — The soli-
citor to a mortgagee whose security included
costs, charges, and expenses of or incidental
thereto, delivered to the mortgagor a bill con-
taining an item of two guineas in anticipation
of future work. This was subsequently in-
creased to four guineas, and an explanatory
bill was delivered to account for the four
guineas so charged. On taxation the Taxing
Master refused to allow the second two guineas
charged in anticipation, and, treating the
explanatory bill as a bill delivered to be taxed,
disallowed it : — Held, that the four guineas
was properly charged in anticipation, and that
the bill was explanatory only, and not to be
taxed. With regard to certain attendances in
chambers the amounts certified by the Master
were in some cases higher and in some lower
than the amounts charged by the solicitors.
The Taxing Master reduced the items higher
than the amounts certified, but refused to allow
the items which were lower to be increased : —
Held, that the solicitors ought to be allowed
the aggregate amount of the charges made,
that aggregate being less than the aggregate
allowed bv the Master. Paice d- Cross, In re,
58 S. J. 593— Joyce, J.
Costs of certain attendances at meetings of
the mortgagor's creditors, and of advice as to
the application of the proceeds of sale of part
of the mortgage security, were disallowed by
the Taxing Master : — Held, that in the cir-
cumstances such costs were properly incurred,
and were payable by the mortgagor. 76.
1563
SOLICITOK.
1564
Solicitor Sole Executor — Insolvent Estate —
Administration Action — Profit Costs.] — A
solicitor who is sole executor and trustee of a
will is not entitled, if the estate is found to
be insolvent, to his costs of defending an
administration action in person, nor to any
other costs, except his out-of-pocket expenses,
even though the will contained a clause
empowering him to make professional charges,
and the order in the action on further con-
sideration directed the costs of the defendant
to be taxed as between solicitor and client,
and retained by him out of the balance due
from him. Shuttleworth, In re; Lilley v.
Moore, 55 S. J. 366— Joyce, J.
Shorthand Writer Jointly Employed —
Notes.] — A claim against three insurance com-
panies in respect of a loss by fire having been
referred to arbitration, the conduct of the
defence was entrusted to one of the companies,
called the leading company, and the two other
companies concurred with the leading company
in appointing E. & Co., who were the solicitors
of the leading company, to be the solicitors for
all the defendants in the arbitration. It was
agreed between counsel and solicitors on both
sides, with the acquiescence of the arbitrator,
that the parties should jointly employ a short-
hand writer to take a note of the proceedings
for the use of both and to furnish a transcript
to the arbitrator day by day, and that they
should share the expense. R. & Co. were
never authorised by either of the companies
other than the leading company to take or
order a shorthand note of the proceedings ;
neither did B. & Co. ever explain to their
clients that the costs of a shorthand note were
costs which they might not be entitled to
recover from the other side if they were
successful. The hearing of the arbitration
lasted for twenty-one days, and ultimately the
arbitrator made an award in favour of the
claimants with costs. The arbitrator never
gave any direction, neither did the parties ever
in terms agree, that the costs of the shorthand
notes should be costs in the cause. On the
taxation of R. & Co.'s bill of costs as between
solicitor and client at the instance of one of
the companies other than the leading company,
the Taxing Master disallowed the shorthand
writer's charges : — Field (by Buckley, L.J.,
and Kennedy, L.J. ; Vaughan Williams, L.J.,
dissenting), that the disallowance was right.
Roney <f- Co.. In re, 83 L. J. K.B. 451 ; [191 1]
2 K.B. 529; 110 L. T. 411— C. A.
4. Costs of Taxation.
See also Vol. XIII. 1644, 2327.
Taxing Master's Special Certificate — Statu-
tory Discretion of the Court.] — The discretion
given to the Court under section 37 of the
Solicitors Act, 1843, respecting the payment of
the costs of a taxation when the Taxing
Master has certified specially any circum-
stances relating to the bill or the taxation
may be exercised in favour of the solicitor or
of the client. There is nothing in the section
which makes that discretion exercisable only
in favour of the client. Richards, In re,
81 L. J. Ch. 165: [1912] 1 Ch. 49; 105 L. T.
7.50: 56 S. J. 74— Parker, J.
Palpable Error in Solicitor's Rule — One-
sixth Rule — Taxing off more than One-sixth.]
— A solicitor in his delivered bill of costs by a
slip failed to credit a certain sum in respect
of returned counsel's fees to his clients. In
a cash account delivered with the bill the sum
was duly credited to the clients, and on
comparing the bill with the cash account the
mistake at once became apparent. The result
of the mistake was that upon taxation more
than one-sixth part of the bill was taxed off.
The Taxing Master certified specially the cir-
cumstances, and stated that if he had been
at liberty to strike out the sum in question
the amount taxed off would have been less
than one-sixth, and the costs of the taxation
would have been payable by the clients and
not by the solicitor. The solicitor on the
special circumstances certified applied to the
Court to vary the certificate : — Held, that the
costs of the taxation should be borne by the
clients, but that as he was asking for relief
in respect of a blunder that had occasioned
the extra costs of the application to the Court,
the solicitor would have to bear the costs of
that application as between solicitor and client.
lb.
5. Reviewing Taxation.
See also Vol. XIII. 1652, 2329.
Taxation as between Solicitor and Client —
"Party."] — In taxation as between solicitor
and client, a solicitor or a firm of solicitors
may be entitled to be regarded as a " party "
within Order LXV. rule 27, regulations 39
and 41, and may be entitled to a review of
taxation in his or their own interests — as, for
instance, where he or they have a lien for
costs on a fund. Clarke's Settlement, In re,
55 S. J. 293— Joyce, J.
Drawing Case for Opinion of Counsel not in
Conveyancing Matter and Previous to Litiga-
tion— Schedule of Documents Handed Over to
New Solicitor upon Withdrawal of Retainer
to Old Solicitor — Perusal of Particulars.] — A
client took out a summons to review taxation
of a solicitor's bill of costs. The following
were among the items in dispute : first, draw-
ing case for the opinion of counsel at 2s. per
folio (the matter was not in conveyancing
business, and was previous to an action);
secondly, making a schedule of the documents
which were handed over to a new solicitor upon
the occasion of withdrawal of retainer to the
old solicitor; thirdly, perusal of particulars at
a charge of 6s. 8d. The particulars were par-
ticulars of defence, and if they had been
treated as part of the defence, a charge for
perusal of 4d. per folio would have come to
much less than 6s. 8d. : — Held, first, that
drawing a case for the opinion of counsel not
being in a conveyancing matter, and not being
in an action, was " other business " within
the meaning of section 2 of the Solicitors'
Remuneration Act, 1881. Stanford v. Roberts
(53 L. J. Ch. 338; 26 Ch. D. 155) explained
and followed. Morgan d Co., In re, 84 L. J.
Ch. 249; [1^15] 1 Ch. 182; 112 L. T. 239;
59 S. J. 289— Neville, J.
Held, secondly, that the charge for the
schedule of documents was rightly allowed, as
1565
SOLICITOK.
1566
it was for the benefit of the new solicitor and
not of the old solicitor. Catlin, In re (18 Beav.
508), distinguished. lb.
Held, thirdly, that particulars were a sepa-
rate " pleading " within the meaning of
Appendix N to Rules of the Supreme Court,
and a charge of 65. 8d. for perusal was rightly
allowed. lb.
III. Modes of Receiving.
a. Charging Orders.
See also Vol. XIII. 1654, 2329.
Property RecoYered or Preserved.] — Where
in a creditor's action an order was made direct-
ing a sum of 64/. due from executors to the
estate to be set off against their costs and the
balance of their costs to be paid out of the
estate, the Court refused to make afterwards
a charging order in favour of the executors'
solicitor for the 64L costs, the subject of the
set-off, since the set-off under the circumstances
amounted to payment in the presence of the
solicitors. CockreU's Estate, hi re; Pinkey V.
Cockrell, 81 L. J. Ch. 152; [1912] 1 Ch. 23;
105 L. T. 662— C.A.
Decision of Neville, J. (80 L. J. Ch. 606;
[1911] 2 Ch. 318), affirmed. lb.
The solicitor of the executors opposed an
application by the creditor plaintiff for the
approval of a conditional contract for sale of
part of the estate and obtained an order for
sale by the executors instead, with the result
that the net purchase money realised was less
than the amount which would have been ob-
tained under the conditional contract. Qucere
(per Cozens-Hardy, M.R., and Farwell, L.J.),
whether any property had been recovered or
preserved by the solicitor within the meaning
of the Solicitors Act, 1860, s. 28. 76.
Set-off to Prejudice of Lien.] — The defen-
dant having obtained in this action judgment
with costs against the plaintiff, and the
plaintiff having subsequently recovered judg-
ment with costs in an action for rent against
the defendant, on which execution was issued
and a return of nulla bona made, the defen-
dant's solicitor, who had obtained for the
defendant the said judgment with costs,
applied for a charging order on such costs
under section 3 of the Legal Practitioners
(Ireland) Act, 1876 [corresponding to
section 28 of the Solicitors Act, 1860] :—
Held, first, that such costs were " property
recovered " within the statute, in respect of
which an order of charge could be made ; and
secondly, that a set-off in respect of the costs
of the plaintiff's judgment to the prejudice of
the solicitor's lien should not be allowed.
Johnston v. McKenzie, [1911] 2 Ir. R. 118—
K.B. D.
b. Lien.
Ser also Vol. XIII. 1674, 2333.
Common-law Lien — Company — Winding-up
— Money Recovered for Company — Costs In-
curred before and after Winding-up — Costs of
Establishing Retainer against Liquidators.] —
A solicitor has a lien on a fund recovered by
his exertions in the winding-up of a company
as against the liquidators for his costs of
recovering it incurred prior to the winding-up
as well as durmg the winding-up, and also for
the costs of establishing his retainer against
the liquidators. Meter Cabs, Lim., In re,
81 L. J. Ch. 82; [1911] 2 Ch. 557; 105 L. T.
572; 19 Manson, 92; 56 S. J. 36— Swinfen
Eady, J.
Client a Debtor to Estate — Set-off of Costs
— Property Recovered or Preserved.] — Where
in a creditor's action an order was made direct-
ing a sum of 64L due from executors to the
estate to be set off against their costs and the
balance of their costs to be paid out of the
estate, the Court refused to make afterwards
a charging order in favour of the executors'
solicitor for the 64L costs, the subject of the
set-off, since the set-off under the circum-
stances amounted to payment in the presence
of the solicitors. CockreU's Estate, In re;
Pinkey v. Cockrell, 81 L. J. Ch. 152; [1912]
1 Ch. 23; 105 L. T. 662— C.A
Decision of Neville, J. (80 L. J. Ch. 606;
[1911] 2 Ch. 318), affirmed. 76.
The solicitors of the executors opposed an
application by the creditor plaintiff for the
approval of a conditional contract for sale
of part of the estate and obtained an order
for sale by the executors instead, with the
result that the net purchase money realised
was less than the amount which would have
been obtained under the conditional contract.
Qucere {per Cozens-Hardy, M.R., and
Farwell, L.J.), whether any property had
been recovered or preserved by the solicitor
within the meaning of the Solicitors Act,
1860, s. 28. 76.
Lien on Trust Deed — Trust Deed to Secure
Debentures — Investigating Title and Prepar-
ing Trust Deed — New Trustees and Debenture-
holders — Construction of Trust Deed — Costs
and Expenses Incurred in or about the Execu-
tion of the Trusts or otherwise in Relation to
the Trust Deed.] — Solicitors investigated title
and prepared a trust deed to secure certain
debentures on the instructions of the intended
original trustees of the deed, the company that
issued the debentures being represented by
separate solicitors. Clause 11 of the trust deed
provided that the trust moneys should be
applied in the first place in payment of the
costs and expenses incurred in or about the
execution of the trusts or otherwise in relation
to the trust deed. The prospectus of the com-
pany contained a statement to the effect that
" the vendor would pay all expenses of every
kind up to and including the completion of the
purchase." Other trustees were subsequently
substituted in place of those who had given
instructions for the preparation of the deed :
— Held, first, that the solicitors who had pre-
pared the deed were entitled to a lien on the
deed for their unpaid costs of investigating
the title and of preparing the deed as against
both the existing trustees and the benficiaries
under the deed, and this notwithstanding the
statement in the prospectus and the subse-
quent change of trustees; and secondly, that
in any case the costs in question were payable
1567
SOLICITOK.
1568
as a first charge under the express provision
in clause 11 of the trust deed. Dee Estates,
Lim., In re; Wright v. Dee Estates, him.,
80 L. J. Ch. 461; [1911] 2 Ch. 85; 104 L. T.
903; 18 Manson, 247; 55 S. J. 424— C.A.
c. Recovery and Payment.
See also Vol. XIII. 1720, 2338.
Action on Bill — Delivery One Month before
Action— Posting of Bill—" Sent by the post."]
— By section 37 of the Solicitors Act, 1843,
" no attorney or solicitor . . . shall com-
mence or maintain any action or suit for the
recovery of any fees, charges, or disburse-
ments for any business done by such attorney
or solicitor, until the expiration of one month
after such attorney or solicitor . . . shall
have delivered unto the party to be charged
therewith, or sent by the post to or left for
him at his counting house, office or business,
dwelling-house, or last known place of abode,
a bill of such fees, charges, and disburse-
ments " signed by such attorney or solicitor or
inclosed in or accompanied by a letter signed
in like manner referring to such bill : — Held
(Buckley, L.J., dissenting), that, on the true
construction of the section, if a solicitor sends
his bill by post the posting must take place
at such time that in the ordinary course of
post the bill should have reached its destina-
tion one clear calendar month before the date
on which the action is commenced. Browne
V. Black, 81 L. J. K.B. 458; [1912] 1 K.B.
316 ; 105 L. T. 982 ; 56 S. J. 144 ; 28 T. L. E
119— C.A.
Decision of the Divisional Court (80 L. J.
K.B. 758; [1911] 1 K.B. 975) affirmed. lb.
Sum Deposited by Client with Solicitor —
Direction to Pay out of that Sum Costs to be
Incurred in Certain Proceedings — Solicitor Un-
certificated at Time of Proceedings — Right of
Solicitor to Retain Sum Deposited in Respect
of Costs of these Proceedings.] — A client
having deposited with his solicitor a sum of
125L for a purpose which turned out to be
unnecessary, subsequently instructed the soli-
citor to take certain legal proceedings, and
gave him a direction to pay out of that sum
his own costs and his disbursements for
counsel's fees in connection with these pro-
ceedings. The solicitor took the proceedings
and incurred such costs and disbursements in
connection therewith. The proceedings were
taken during a time when the solicitor was not
qualified to practise by reason of his being
uncertificated. Subsequently in an action
brought against him by the solicitor in respect
of another matter, the client sought to set off
125L to the extent of these costs and disburse-
ments, on the grounds that the direction given
by him to the solicitor was limited to costs
and disbursements which could be recovered by
the solicitor as such, and that the costs and
disbursements in question having been incurred
while the solicitor was disqualified, were not
recoverable by the solicitor by virtue of
section 12 of the Solicitors Act, 1874, and
would have to be disallowed on taxation : —
Held, by the Court of Appeal (reversing the
decision of Channell, J.), that the client was
entitled to the set-off which he claimed.
Browne v. Barber, 82 L. J. K.B. 1008; [1913]
2 K.B. 553; 108 L. T. 744— C.A.
County Court Proceedings — Bill of Costs not
Taxed — Right to Sue Client.] — By section 116
of the County Courts Act, 1888, a solicitor is
not entitled to recover from his client any
costs and charges " unless they shall have been
allowed on taxation " : — Held, that the section
has not the effect of making taxation a condi-
tion precedent to the right of a solicitor to sue
his client upon a bill of costs, although the
period within which the client may claim taxa-
tion may not have elapsed. Cubison v. Mayo
(65 L. J. Q.B. 267; [1896] 1 Q.B. 246) ex-
plained. Bell V. Girdlestone, 82 L. J. K.B.
696 ; [1913] 2 K.B. 225 ; 108 L. T. 648— D.
Payment — What is.] — Moneys advanced by
a company that afterwards went into voluntary
liquidation to their solicitors were retained by
the latter in satisfaction of a bill of costs : —
Held, that the retention did not amount to
payment within section 41 of the Solicitors
Act, 1843, there being no settlement of account.
Foss, Bilbrough, Plaskitt d Foss, In re,
81 L. J. Ch. 558 ; [912] 2 Ch. 161 ; 106 L. T.
835; 56 S. J. 574— Neville, J.
I. UNQUALIFIED PEACTITIONEES.
See also Vol. XIII. 1752, 2341.
Summary Jurisdiction.] — The summary
jurisdiction of the Court over solicitors as
officers of the Court does not extend to
unqualified persons who in the particular
matter do not act in such a way as to get
money by holding themselves out as being soli-
citors. Hurst d- Middleton, In re, 82 L. J.
Ch. 114; [1912] 2 Ch. 520; 107 L. T. 502;
56 S. J. 652; 28 T. L. E. 500— C.A.
Contempt of Court.] — Where an unqualified
person acted in obtaining a decree nisi for
divorce made absolute, and asked for and
obtained from the petitioner a larger sum
than was really payable as the necessary fee,
the Court, holding that he had been guilty
of contempt of Court, made an order that
he should be committed to prison for six weeks
and pay the costs of the proceedings against
him for attachment. Davies v. Davies ;
Watts, In re, 57 S. J. 534; 29 T. L. E. 513—
Bargrave Deane, J.
Solicitor Permitting his Name to be Used
for Profit of Unqualified Person.] — An agree-
ment between a solicitor and his managing
clerk, who was not a solicitor, that the clerk
should be paid a weekly salary of 31. 10s. and
a bonus of 25 per cent, on the profits received
by the solicitor in respect of business intro-
duced by the clerk, contained the following
clause : "In the event of the termination of
your engagement . . . the said bonus of
25 per cent, is to be continued to be paid to
you notwithstanding such termination, less
three pounds ten shillings per week " : — Held
that, inasmuch as it nmst be inferred from
the above clause that the business was in fact
the business of the clerk, the agreement was
1569
SOLICITOE— SPECIFIC PEEFOEMANCE.
1570
one under which the solicitor was to permit
his name to be used for the profit of an un-
qualified person, and was therefore illegal
under section 32 of the Solicitors Act, 1843.
Harper v. Eyjolfsson, 83 L. J. K.B. 774;
[1914] 2 K.B. 411 ; 110 L. T. 540 ; 30 T. L. R.
246— D.
SOVEREIGNS AND
STATES.
See INTERNATIOXAL LAW.
SPECIAL CASE STATED
BY JUSTICES.
See JUSTICE OF THE PEACE.
SPECIAL
INDORSEMENTS.
See PRACTICE.
SPECIFICATION OF
PATENTS.
See PATENT.
SPECIFIC
PERFORMANCE.
See also Vol. XIII. 1760, 2341.
Agreement for Sale of a Lease — Conditions
— No Final Agreement.] — By certain letters
the plaintiff offered to purchase certain lease-
hold premises, the offer being subject to the
conditions that the plaintiff's solicitors should
approve the title to and covenants contained
in the lease, the title from the freeholder,
and the form of contract, and that the plaintiff
should approve her surveyors' report, and
this offer was accepted by the defendant, the
vendor. On the receipt of the report, the con-
ditions not having been performed, the plaintiff
endeavoured to obtain a contribution from the
defendant towards some improvements, where-
upon the defendant withdrew. The plaintiff
sought specific performance : — Held, that there
was no final agreement of which specific per-
formance could be enforced against the defen-
dant. Winn V. Bull (47 L. J. Ch. 139;
7 Ch. D. 29) followed. Von Hatzfeldt-
Wildenburg (Princess) v. Alexander, 81 L. J.
Ch. 184; [1912] 1 Ch. 284; 105 L. T. 434—
Parker, J.
Sale of Land — Conflict of Interest and of
Duty.] — In an action for specific performance
brought by the appellant — the vendor — against
the respondents it was contended that the
appellant, who was one of the commissioners,
had an indirect interest in the sale through his
father, a neighbouring landowner, and that
such interest conflicted with his duty. It was
also contended that he had abandoned the
bargain by writing that if the transaction was
not carried through by a stated time he should
hold himself free to dispose of the land as
he pleased. Both objections overruled and
specific performance decreed. Laugliton v.
Port Erin Commissioners, 80 L. J. P.C. 73;
[1910] A.C. 565; 103 L. T. 148— P.C.
Contract for Sale of Lease — Whether Time
of the Essence.] — By section 55 of the Indian
Contract Act, 1872, " When a party to a con-
tract promises to do a certain thing at or before
a specified time, or certain things at or before
specified times, and fails to do any such thing
at or before the specified time, the contract,
or so much of it as has not been performed,
becomes voidable at the option of the promisee,
if the intention of the parties was that time
should be of the essence of the contract." The
defendant, who was the assignee of a reclama-
tion lease of certain land near Bombay, agreed
in writing to sell his leasehold interest to the
plaintiff, it being provided that the title was
to be made marketable and that the conveyance
was to be prepared and received within two
months from the date of the contract. The
plaintiff's solicitors made certain requisitions
on title, one of which was for a certificate that
all the covenants in the lease had been fulfilled.
This requisition was made more than two
months after the date of the contract. The
defendant's solicitors did not comply with the
requisition, but asserted his right to put an
end to the contract on the ground that time
was of its essence. The requisition was a
proper one, apart from the question as to the
date at which it was made. In an action for
specific performance, — Held, that the above
section did not lay down any principle differing
from the law of England in regard to con-
tracts for the sale of real estate^ and that
there was nothing in the contract or in its
subject-matter to displace the presumption
that for the purposes of specific performance
time was not of the essence of the bargain,
and that therefore the plaintiff was entitled
to a decree. Jamshed Khodaram Irani v.
Burjorji Dhunjibhai, 32 T. L. R. 156— P.C.
Principles on which a Court of Equity will
decree specific performance considered. lb.
Contract to Leave a Legacy by Will — Con-
sideration for Marriage. 1 — J'hc father of an
intended bride, when asked by the husband to
make a settlement, wrote : " I have made a
will leaving V. fthe bride) a legacy of 5.000/..
and I do not intend to alter it. I shall leave
60
1571
SPECIFIC PEKFOEMANCE— STATUTE.
1572
the allowance of 150/. as it is." The will was
afterwards revoked : — Held, that the letter
followed by the marriage constituted an
enforceable contract as to the 5,000L, but not
as to the 150Z., and that B. was entitled to
prove against the estate of the father for the
5,000/. by way of damages. Broadicood, In
re; Edwards v. Broad wood, 56 S. J. 703 —
C.A.
Contract — Option — Withdrawal by Conduct
— Communication by Third Parties — Relation
Back of Acceptance — Prior Equity.] — The de-
fendant made the plaintiff an offer, to remain
open for seven days, of the lease of the defen-
dant's premises. The defendant the next day
agreed to let the premises to R. The plaintiff
purported to exercise the option within the
seven days, and claimed specific performance
of the alleged contract as from the date of the
defendant's offer -.—Held, that, there being
sufficient evidence of notice received by the
plaintiff of acts inconsistent with the grant-
ing of the lease by the defendant to the
plaintiff, the offer " of the defendant had
been withdrawn and was not a continuing
offer to the date of acceptance by the defen-
dant, but that, if it had been, R. having no
notice before he entered into the agreement to
take the lease of the plaintiff's rights. R. would
have a prior equity, and the plain^^iff would
not have been entitled to specific performance.
Cartwrifjht v. Hoogstoel, 105 L. T. 628—
Eve, J.
Uncertainty — Part Performance — Action for
Damages.] — Per Buckley, L.J. : A contract
which is void for uncertainty is not rendered
certain by part performance, but where a
contract is complete in itself, in that a d fined
act is to be done upon reasonable terms,
evidence is admissible as to what terms are
reasonable, and the conduct of the parties niav
be the best evidence upon this point. Passage
in Fry on Specific Performance (.3rd ed.},
p. 174, considered. Waring <f Gillow v.
Thompson, 29 T. L. R. 154— C.A.
Decree with Compensation — Deficiency in
Subject - matter — Misrepresentation.] — In
exercising jurisdiction over specific perform-
ance, a Court of equity will look at the
substance and not merely the letter of the
contract. Therefore if a vendor sues, and is
in a position to convey substantially what the
purchaser has contracted for, the Court will
decree specific performance, with compensa-
tion for any small and immaterial deficiency ;
and if a purchaser is suing he may elect to
take all that he can get, and to have a
proportionate abatement from the purchase
money in respect of a deficiency in the subject-
matter described in the contract. But this
right docs not apply to a representation about
the subject-matter made, not in the contract,
but collaterally to it. Decision of the Court
of Appeal of New Zealand (33 N.Z. L. R.
774) affirmed Rutherford v. Acton-Adams,
84 L. J. P.C. 2.38: [1915] A.C. 866— P.C.
Action on Contract — Costs.] — Where a
decree for specific performance, with enquiry
as to title, is granted in an action in which
questions of contract only, and not of title, are
raised, the purchaser will be ordered to pay
the costs of the action and enquiry upon title
being shewn. Banfield v. Picard, 55 S. J. 649
— Joyce, J.
Motion for Judgment by Vendor — CouYey-
ance — Stamping — Increment Value Duty —
Minutes.] — The minutes of judgment in a
vendor's action for specific performance should
contain a reference to the fact that the
conveyance has been duly stamped with the
increment value duty stamp in accordance
with section 4, sub-section 3 of the Finance
(1909-10) Act, 1910. The form at page 2171
of the 7th edition of Seton on Judgments and
Orders should be amplified by adding after the
words " duly executed by him " the words
" and duly stamped so as to comply with
section 4, sub-section 3 of the Finance
(1909-10) Act, 1910." Dawnay v. Chessum,
60 S. J. 59— Sargant, J.
See also Vendor and Purch.4SEr.
STAGE PLAYS.
See COPYRIGHT.
STAMPS.
See REVENUE.
STANNARIES.
See MINES.
STATEMENT OF CLAIM.
See PRACTICE.
STATUTE.
See also Vol. XIII. 1880, 2352.
Marginal Notes.] — ^In some private Acts of
Parliament the marginal notes may form part
of the Act. Woking Urban Council (Basing-
stoke Canal) Act. 19il, In re, 83 L. J. Ch.201;
[1914] 1 Ch. 300; 110 L. T. 49; 78 J. P. 81;
12 L. G. R. 214; 30 T. L. R. 185— per
Phillimore, L.J.
Interpretation — Clause from Public Act In-
corporated in Private Act — Effect of Subse-
quent Repeal of Public Act.] — Where a clause
1573
STATUTE.
1574
from a public Act has been incorporated with
and forms part of a private Act, that part of
the private Act is not repealed by the mere
repeal subsequentlv of the public Act. Jenkins
V. Great Central Railway, 81 L. J. K.B. 24;
[1912] 1 K.B. 1 : 106 L. T. 565 ; 17 Com. Cas.
32: 12 Asp. M.C. 154; 28 T. L. R. 61— Lord
Coleridge, J.
Repealing Statute — Reference to Parties
under Repealed Statute.] — Whether a repeal-
ing statute can be construed by reference to
the practice which prevailed under the statute
which it repeals, qucere. Thomson v. Bent
Colliery Co., [1912] S. C. 242— Ct. of Sess.
Implied Repeal of Statute by Conflicting
Provisions of Later Act.] — See Luby v. ll'ar-
wickshire Miners Association, post, col. 1627.
Effect of Private Act on Mortmain Act.] — A
private Act will not set aside the provisions of
the Mortmain and Charitable Uses Acts, 1888
and 1891, unless language is used in the
private Act which makes the application of
those Acts impossible. Verrall, In re, 60 S. J.
141— Astbury, J.
Permanent and Temporary Provisions —
Effect of Affirmative Continuance." — The mere
affirmative continuance for a definite period of
a previous statute which contains both per-
manent and temporary provisions does not at
the expiration of the specified period operate
as an abrogation of the permanent provisions
of the previous statute. Houghton v. Fear,
82 L. J. K.B. 650: [1913] 2 K.B. 343;
109 L. T. 177 ; 77 J. P. 376 ; 11 L. G. E. 731 ;
23 Cox C.C. 494 ; 29 T. L. R. 410— D.
When Repugnant.] — Where two statutes
passed in the same year appear to be repugnant
that which was passed latest must prevail.
Rex V. Middlesex Justices (1 L. J. M.C. 5 ;
2 B. & Ad. 818) approved. British Columbia
Electric Railway v. Stewart; Point Grey
Corporation v. Steicart, 83 L. J. P.C. 53;
[1913] A.C. 816 ; 109 L. T. 771— P.C.
Usage.] — As against a plain statutory enact-
ment no usage, however long continued, can
prevail. Lord Advocate v. Walker Trustees,
[1912] A.C. 95; 106 L. T. 194; 28 T. L. R.
101— H.L. (So.)
Two Statutes to be Read Together as One
— Construction.! — Two water mains had been
laid under a private Act which did not contain
a clause providing that nothing in the Act
should exempt the defendants from liability
for nuisance. The other two were laid under
a later Act which did contain this clause, and
further provided that the two Acts should be
construed together as one Act : — Held, that,
as the Acts were to be read together, the
privilege which existed under the earlier Act
■was taken away, and that consequently the
defendants had not statutory authority pro-
tecting them in the case of any of the above
mains, and were consequently liable to the
plaintiffs as for a nuisance. Charing Cross,
West End, and Citii Electricity Supply Co. v.
London Hydraulic Power Co.. 83 L. J. K.B.
1352; [19i4] 3 K.B. 772; 111 L. T. 198;
78 J. P. 305; 2 L. G. R. 807; 58 S. J. 577;
30 T. L. R. 441— C.A.
Decision of Scrutton, J. (83 L. J. K.B. 116;
[1913] 3 K.B. 442), affirmed. lb.
Agreement by Tenant for Life to Grant a
Perpetual Easement in Consideration of a Per-
petual Rentcharge — Confirmation of Agree-
ment by Private Act — Power of Tenant for
Life to Vary the Agreement and to Grant a
Perpetual Easement. — Under a settlement
dated July 7, 1888, P. P. C. was in 1900 tenant
for life in possession of a settled estate in the
Isle of Thanet and was then a bachelor, and
G. P. C. was then tenant for life in remainder.
By an agreement dated April 20, 1900, and
made between P. P. C. and G. P. C. of the
one part and the W. and B. Water Co. of the
other part the company was authorised to
make an adit or tunnel under the settled
estate, to be completed by December 31, 1914,
or such later date as the grantors should
appoint, and it was agreed that upon com-
pletion the grantors should by deed grant to
the company the right in perpetuity to main-
tain and use the adit and that the company
should pay to the grantors in perpetuity a rent
of Is. a yard per annum and should supply a
certain quantity of water free to farms on the
estate. The grantors were defined as P. P. C.
and G. P. C. and their successors in title
under the settlement. By the W. and B.
Water Act, 1900, the company was (inter alia)
authorised to make the said adit, and by sec-
tion 42 the said agreement was confirmed and
made binding on the parties thereto and was
set out in a schedule to the Act. but the settle-
ment was not otherwise referred to nor any
special powers conferred upon the grantors.
The adit was not completed by the agreed date,
which had been extended to June 30, 1915.
It was now proposed that the completion
should be postponed t-ill December 31, 1930,
and that the company should in consideration
of the extension of time pay an increased rental
and supply an increased amount of free water
to the estate. P. P. C. was now married and
had three daughters : — Held. that, though
when an agreement confirmed by a private Act
confers powers on a grantor outside any
statutory powers special reference to such
powers ought to be made in the Act. the con-
firmation of the agreement sufficiently expressed
the intention of Parliament to confer such
powers, and that P. P. C. and G. P. C. jointly
could further extend the time for completion
of the works and grant a perpetual easement
in consideration of a perpetual rentcharge
which could be increased beyond the amount
specified in the agreement. Westgate and
Birchington Water Co. v. Powell-Cotton,
113 L. T. 689— Eve, J.
Construction of Local and Personal Act —
Statutory Contract between Railway and
Navigation Companies — Clauses in Part for
the Protection of the Public. 1 — By a Light
Railway Order of the Ijight Railway Commis-
sioners, confirmed by the Board of Trade
under the Light Railways Act, 1896, a com-
pany incorporated by that Order was authorised
to construct a light railway which was to be
carried over a canal, then vested in a naviga-
1575
STATUTE.
1576
tion company, by an opening or swing bridge.
Section 29 of the Order commenced " For the
protection of the Navigation Company the
following provisions shall have effect"; then
followed a number of sub-sections which pro-
vided, among other things, (3) that the Light
Railway Co. should carry the railway over
the canal by an opening or swing bridge at
a defined height with opening space of a
defined width ; (4) make provision for opening
the bridge for the passage of barges, boats,
or other vessels at all times by night and
day ; (5) maintain the waterway at a certain
depth; (8) exhibit proper lights every night,
and provide and work proper signals to inform
and warn persons using the canal during foggy
weather when the bridge was closed ; and (16)
" The company and Navigation Company may
agree for any variation or alteration of the
works in this section provided for or of the
manner in which the same shall be executed."
The undertaking of the Light Eailway Co.
was afterwards vested in the North-Eastern
and Lancashire and Yorkshire Eailway Com-
panies as part of their joint undertaking. The
joint companies had agreed with the Naviga-
tion Co. that the swing bridge should be
altered into a fixed bridge. The Attorney-
General brought this action, at the relation
of the owner of a number of keels and boats
using the canal, to restrain the companies
from making the alterations : — Held, that as
some of the provisions of section 29 were
clearly for the benefit of the public, the fact
that it was stated to be inserted for the pro-
tection of the Navigation Co. did not make
it a mere contract between the companies
which they could vary at pleasure, and the
Attorney-General was entitled to bring the
action for the protection of the public. Held,
also, that the proposed alteration was not an
alteration of works within the meaning of
sub-section 16, and the injunction must be
granted. Att.-Gen. v. North-Eastern Railway,
84 L. J. Ch. 657 ; [19151 1 Ch. 905 ; 113 L. T.
25; 79 J. P. 500; 13 L. G. R. 1130— C. A.
Action Abolished — Jurisdiction in such
Actions Restored — New Action after Restora-
tion of Jurisdiction — Res Judicata.] — The
principle stated bv Tindal, C.J., in Key (or
Kay) V. Goodwiri {8 L. J. (o.s.) C.P. 212;
6 Bing. 576), that the effect of repealing a
statute is to obliterate it as completely as if
it had never been passed, must be taken with
the qualification that it does not deprive per-
sons of vested rights acquired by them in
actions duly determined under the repealed
law. Lemm v. Mitchell, 81 L. J. P.C. 173;
[1912] A.C. 400; 106 L. T. 359; 28 T. L. E.
282— P.C.
In 1907 the respondent brought an action
in Hong-Kong against the appellant for
criminal conversation. That action was dis-
missed upon the ground that by the effect
of certain Ordinances such actions had been
abolished in Hong-Kong. In 1908 a new
Ordinance was promulgated restoring the
jurisdiction of the Hong-Kong Courts in such
actions, and that Ordinance had a retroactive
effect to the extent of enabling actions to
be brought in respect of criminal conversa-
tion during the period when the right of
action had ceased to exist in the colony.
After the promulgation of the Ordinance the
respondent commenced a fresh action against
the appellant in respect of precisely the same
acts of misconduct as he had alleged in his
former action. The appellant pleaded res
judicata, but the Hong-Kong Court over-
ruled the plea upon the ground that there had
been no judgment on the merits of the case :
— Held, reversing the decision of the Hong-
Kong Court, that the judgment in the first
action was a final determination of the rights
of the parties, and that there was nothing
in the Ordinance of 1908 to shew any inten-
tion on the part of the Legislature not merely
to alter the law, but to alter it so as to
deprive the appellant of the subsisting judg-
ment in his favour. lb.
Statutory Powers — Harbour and Ferry
Trustees — Ultra Vires — Interdict — Ratepayers
of Harbour — Title to Sue.] — By the Dundee
Harbour and Tay Ferries Consolidation Act,
1911, the appellants were constituted a body
of trustees, to be elected in part by the ship-
owners and harbour ratepayers of Dundee, and
the Act vested in them the harbour of Dundee,
and the exclusive right of working and using
ferries within limits defined by the Act. They
made a practice of letting out steam vessels
which were not actually required for the pur-
poses of the ferries, but were kept in reserve
in case of an accident, for excursions on the
river Tay beyond the limits of the harbour and
ferries, as defined by the statute. The profits
of such excursion traffic were brought into
their general account : — Held, that the appel-
lants could be restrained by interdict from so
doing, such excursion traffic not being within
their statutory powers, or reasonably inci-
dental to the purposes thereof, and that the
respondents, who were shipowners and harbour
ratepayers in Dundee, had a good title to
maintain proceedings in respect of such ultra
vires actings. Dundee Harbour Trustees v.
Nicol, 84 L. J. P.C. 74; [1915] A.C. 550;
112 L. T. 697; 31 T. L. E. 118— H.L. (Sc.)
Decision of the Court of Session in Scotland
([1914] S. C. 374) affirmed. 76.
Water Company — Agreement for Con-
struction of Mains — Distribution of Water in
Statutory Area — Delegation of Powers — Ultra
Yires.] — The plaintiffs, a water company
incorporated by statute, agreed with the de-
fendants that the latter should, within the
statutory area, construct mains and works,
collect water rates, and distribute water,
which was to be supplied in bulk at a fixed
charge by the plaintiff company : — Held,
that this agreement was not a delegation of
statutory powers; it was therefore valid, and
intra vires the company. Ticehurst and Dis-
trict Water and Gas Co. v. Gas and Water-
works Supply and Construction Co., 55 S. J.
459 — Warrington, J.
Claim Illegal or Unenforceable by Statute —
Defence not Raised — Duty of Court.] — If the
Court is satisfied that a transaction is illegal
or unenforceable by statute, it must take the
objection itself although the parties may not
wish to raise the point. Societe des HStels
1577
STATUTE— STOCK EXCHANGE.
1578
Rdunis V. Hawker, 29 T. L. E. 578— Scnitton,
J.
STATUTE OF FRAUDS.
Validity of Contract within.] — See Contract.
STATUTE OF
LIMITATIONS.
See LIMITATIONS, STATUTE OF.
STAYING PROCEEDINGS.
See APPEAL ; ARBITRATION ;
PRACTICE.
STEALING.
See CRIMINAL LAW
STOCK EXCHANGE.
See also Vol. XIII. 2375.
Stockbroker and Client — General Lien.] —
Stockbrokers who have received transfers of
stock or shares for delivery to a customer
have by the law of Scotland a general lien on
these transfers for the balance due to them by
the customer. Hope v. Glendinyiing, 80 L. J.
P.C. 193; [1911] A.C. 419— H.L. (Sc.)
The appellants, stockbrokers in Edin-
burgh, claimed to retain in their hands
an uncompleted transfer of shares purchased
and paid for by the respondent until a claim
by the appellants arising out of a subsequent
transaction between them and the respondent
was satisfied : — Held, that the appellants as
stockbrokers had a general lien on the transfer
in question until the claim against the respon-
dent was satisfied. lb.
Contract for Half Commission — Monthly
Minimum — Closing of Exchange — Effect on
Contract.] — By ;in agreement between the
plaintiff and the defendants the latter agreed
to pay to the plaintiff half commission on all
business introduced by him, subject to a
certain minimum. During the currency of the
agreement the Stock Exchange was closed for
some months owing to the war. In an action
on the agreement the plaintiff contended that
the agreement in effect entitled him to a
salary, whether the Stock Exchange was closed
or not : — Held, that it was an implied term of
the agreement that to entitle the plaintiff
to remuneration the Stock Exchange should
remain open, and the plaintiff was not entitled
to recover. Berthoud v. Schweder d Co.,
31 T. L. R. 404— Ridley, J.
Custom — Broker's Commission over and
above Contango — Right of " Half-commission
man."] — There is no custom of the Stock
Exchange whereby a " half-commission man "
can claim a half-share of the small extra
charge for expenses made by the broker over
and above the ordinary continuation charge or
contango which is receivable by the " jobber."
Von Taysen v. Baer, Ellissen d Co., 56 S. J.
224— Parker, J.
Powers of Committee — Purchase of Shares
— Postponement of Date for Completion —
" Security " — Right to Realise — Emergency
Powers.] — By rule 20 of the Rules of the
Stock Exchange, the committee may, subject
to certain conditions, " dispense with the strict
enforcement of any of the Rules or Regula-
tions " : — Held, that the rule does not empower
the committee to pass a resolution postponing
the date for the completion of a contract for
the purchase of shares. Barnard v. Foster,
84 L. J. K.B. 1244; [1915] 2 K.B. 288—
Sankey, J. Affirmed, 32 T. L. R. 88— C.A.
On July 30, 1914, the defendant instructed
the plaintiff, a broker on the Stock Exchange,
to buy certain shares. The plaintiff accord-
ingly bought the shares from a firm of jobbers.
The committee of the Stock Exchange had
fixed the August account days for August 13
and August 27, and on July 31 they passed a
resolution that bargains open for the ordinary
mid-August account should be settled at the
date fixed for the end- August account — namely,
August 27. On August 6 a moratorium pro-
clamation came into force, and the committee
subsequently, by resolution, further postponed
the mid-August account day to November 18.
The defendant, having refused to take up the
shares on that date, the plaintiff sold them,
and brought an action to recover the difference
in price : — Held, that the scrip for the shares
which the plaintiff received from the jobbers
was not a "security " within the meaning of
section 1, sub-section 1 ih) of the Courts
(Emergency Powers) Act, 1914, as it never at
any time belonged to the defendant, and that
the plaintiff was therefore entitled to sell the
shares without first applying to the Court
under the provisions of that sub-section. Ih.
Pledge of Customer's Securities by Broker
with his Own — Right of Customer to Surplus.]
— See Burgr. Woodall <(■ Co.. In re; Skyr7ne,
ex parte, ante, col. 104.
Country Broker and Client — Commission not
Disclosed.'— See Blaker v. Hawes, ante, col.
1198.
1579
STOCKS AND SHAEES— SUNDAY.
1580
STOCKS AND SHARES.
See COMPANY.
STOPPAGE IN
TRANSITU.
See SALE OF GOODS.
STRAITS SETTLEMENT.
See COLONY.
STREET.
See LOCAL GOVERNMENT;
METROPOLIS.
SUBMISSION.
See ARBITRATION.
SUBSTITUTED SERVICE.
See PRACTICE.
SUCCESSION DUTY.
See REVENUE.
SUICIDE.
See CRIMINAL LAW.
SUMMARY
JURISDICTION.
See JUSTICE OF THE PEACE.
SUMMONS.
Debtor's.] — See Bankruptcy.
Magistrates.] — See Justice of the Peace.
SUNDAY.
See also Vol. XIII. 1966, 2394.
Sunday Trading — Prosecution — Consent of
Chief Officer of Police — " Chief officer of
police" — Representative of Chief Constable.]
— A representative of a chief constable, ap-
pointed to act during the chief constable's
absence on holiday, is not the " chief officer
of police " within the meaning of section 1
of the Sunday Observation Prosecution Act,
1871, for the purpose of authorising a prosecu-
tion for Sunday trading under the Sunday
Observance Act, 1677, although the latter him-
self is such of&cer. Rex v. Halkett; Butinck,
Ex parte, 79 L. J. K.B. 12; [1910] 1 K.B. 50;
101 L. T. 603; 74 J. P. 12; 22 Cox C.C. 202
— D.
Refreshment-house Licence — " Meat " —
Sale of Ice Cream.] — A refreshment -house
Excise licence does not exempt the holder of
the licence from the provisions of the Sunday
Observance Act, 1677. Amorette v. James,
84 L. J. K.B. 563; [1915] 1 K.B. 124;
112 L. T. 167 ; 79 L. J. 116 ; 13 L. G. R. 598 ;
59 S. J. 162 ; 31 T. L. R. 22— D.
A refreshment-house keeper, the holder of
an Excise licence, in the ordinary way of his
business supplied some ice cream to customers
on a Sunday, and was charged before the
Justices, under section 1 of the Sunday
Observance Act, 1677, with unlawfully exer-
cising his ordinary calling on the Lord's Day,
and was convicted, his only contention being
that the licence exempted him from the
provisions of the Act. On appeal, on a Case
stated, he further contended that the selling
of the ice cream was the selling of " meat "
within the meaning of section 3 of the Act,
and therefore not prohibited by the statute :
— Held, first, that the licence did not exempt
him from the provisions of the Act ; and
secondly, that the point as to ice cream being
" meat " within the meaning of section 3 of
the Act not having been taken before the
Justices, and there being no evidence before
them that ice cream was " food," must be left
open for future decision. lb.
Aiding and Abetting — Purchase of Cigar-
ettes— Mens Rea.]— The purchase of cigarettes
from the proprietors of an eating house on a
Sunday does not per se amount to the offence
of aiding and abetting the vendor in the
offence, under the Sunday Observance Act;
1677, of the vendor exercising his ordinary
calling on the Lord's Day. Whether it would
amount to such an offence if the purchaser
knew that the vendor was exercising his
ordinary calling on a Sunday, qucere. Chivers
1581
SUNDAY— TELEGEAPH AND TELEPHONE.
1582
V. Hand, 84 L. J. K.B. 304; 112 L. T. 221;
79 J. P. 88; 13 L. G. E. 537; 31 T. L. E. 19
— D.
A person who enters a shop on a Sunday and
buys goods there, with the knowledge that the
shopkeeper is exercising his ordinary calling,
commits the offence of aiding and abetting
the shopkeeper in the exercise of his ordinary
calling on a Sunday, contrary to section 1 of
the Sunday Observance Act, 1677. Fairburn
V. Evans, 32 T. L. E. 166— D.
SUPER-TAX.
See EE VENUE.
SURETY.
See PEINCIPAL AND SUEETY.
SURGEON.
See MEDICINE.
SURRENDER.
Of Leases.] — See Landlord and Tenant.
SURVEYOR.
Fees, by whom Paid.] — See Vendor and
Purchaser.
TAXATION OF COSTS.
Between Party and Party.] — See Costs.
Between Solicitor and Client.] — See
Solicitor.
TAXES.
See EEVENUE.
TELEGRAPH AND
TELEPHONE.
See also Vol. XIV. 1, 2041.
Negligence by Sub-postmaster in Transmis-
sion of Telegram — Liability of Sub-post-
master.]— A sub-postrnaster, in transmitting
a telegram, acts as a public officer and in the
discharge of a public duty, and if he is guilty
of negligence in the transmission of the tele-
gram, causing loss to the sender, he is liable
to the sender for the loss so sustained.
Rowning v. Goodchild (2 W. Bl. 906) applied
and followed. Hamilton v. Clancy, [1914]
2 Ir. E. 514— K.B. D.
Erection of Telegraph Posts — Road not
Taken over by Local Authority — Consent
Required — " Body having control of street."]
■ — A street or road which, although open for
public use, has not been taken over by the
urban district council, is not under the control
of the council, as successors of the Surveyors of
Highways, under section 12 of the Telegraph
Act, 1863, and therefore the council is not the
body whose consent can be required by the
Postmaster-General to the erection of telegraph
poles and wires thereon. Semble, the owner
of the soil is the person " having the control "
of a public road not yet taken over by the
local authority. Postmaster-General v. Hendon
Urban Council, 83 L. J. K.B. 618; [1914]
1 K.B. 564; 110 L. T. 213; 78 J. P. 145;
12 L. G. E. 437 ; 15 Ey. & Can. Traff. Cas.
185— C.A.
Decision of the Eailway and Canal Com-
missioners (82 L. J. K.B. 1081; [1913] 3 K.B.
451) affirmed. lb.
Objection of Public Authority — Alterna-
tiYe Site on Private Land.] — Where a local
authority had bona fide exercised their dis-
cretion in refusing their consent to the placing
of a distributing telegraph pole on a narrow
pavement (about one-fifth of which would have
been confiscated for that purpose), and where
a suitable site on private ground was available
at a rental of IL per annum : — Held, that
the local authority had not withheld their
consent unreasonably. Postmaster-General v.
Darlincjton Corporation, 15 Ey. & Can. Traff.
Cas. 333— Ey. Com.
" Pleasure ground " — " Garden."] — Sec-
tion 21 of the Telegraph Act, 1863, permits a
telegraph company, within the limits of a town
having a certain population, and with the
consent of the street authority, to place and
maintain a telegraph across any land not being
laid out as building land, or not being a
garden or pleasure ground, provided that
twenty-one days' previous notice is published
by the company stating that they have
obtained such consent, and describing the
intended course of such telegraph : — Held, that
a pleasure ground, to come within the meaning
of the section, should have some equipment of
a more or less permanent character that would
be of service to persons frequenting it for the
purpose of recreation ; and that a yard used
1583
TELEGEAPH AND TELEPHONE.
1584
by the plaintiff mainly for the purpose of his
business, and without such equipment, but in
which his children were in the habit of play-
ing, was not such a pleasure ground. Held
also, that the exception in the section is only
made in respect of land which is not a pleasure
ground or garden, and not in respect of
buildings, and that a garden on the roof of
a building was not within the exception.
Stevens v. National Teleplione Co., [1914]
1 Ir. K. 9— Ross, J.
Consent to Erection.] — The consent of the
street authority must be obtained before the
erection of the telegraph. A subsequent con-
sent is not sufficient. lb.
Pole Erected with Ten Yards of Dwelling
House in a Town,] — Section 22 of the same
Act, which prohibits a telegraph company from
placing a telegraph post within ten yards of
a dwelling house except as therein provided,
applies only to rural districts, or to cases where
telegraph posts are put upon property of one
person with his consent, but at a distance of
less than ten yards from the house of another
person. lb.
Overhead or Underground Wires — Overhead
Wire along Public Road — Objection of Local
Authority.] — An urban district council having
refused their consent to the placing of an
overhead telegraph wire on poles for a distance
of a quarter of a mile along a road in their
district, and the County Court Judge for the
district having found that their refusal was
reasonable, the Postmaster-General applied to
the Eailway Commissioners. The district
council had expended 6,000?. in altering their
own overhead wires to underground wires, and
in laying new underground wires. In 1907 the
Postmaster-General had applied for the con-
sent of the district council to lay underground
wires in the road in question, which had been
granted, and the wires had been laid accord-
ingly : — Held, that, under the circumstances
of the case, the wire should be laid under-
ground on the district council undertaking to
do the work of excavation, laying the pipes,
and filling the trenches for 50L Postmaster-
General V. Tottenham Urban Council,
14 Ry. & Can. Traff. Cas. 154 ; 8 L. G. R. 791 ;
74 J. P. 434— Ry. Com.
A corporation of a county borough, on being
applied to by the Postmaster-General under
section 3 of the Telegraph Act, 1878. for
their consent to the erection of certain tele-
phone wires on poles in and along certain
public roads within the borough, refused their
consent. The difference was referred under
section 4 of the Telegraph Act, 1878, to the
County Court Judge of the district, who de-
cided that such wires should be erected over-
head, as proposed by the Postmaster-General.
The corporation thereupon applied to the
Railway Commissioners. The substantial
objections of the; corporation were : First,
that overhead wires lowered the value of house
property in the roads where they were erected;
secondly, that they disfigured such roads ;
thirdly, that they were dangerous in times of
storm; fourthly, that their vibration was a
nuisance; and fifthlv, that thev obstructed
traffic. The cost of laying the wires under-
ground was about 355 per cent, more than
erecting them on the overhead system. The
Post Office had expended 65,000l. in laying
underground lines in Croydon as compared
with 1,800?. for overhead lines : — Held, that
the overhead wires as proposed by the Post-
master-General should be allowed, but that if
the corporation should within one month give
notice that they would bear the extra cost of
laying any line underground in any street such
line should be placed underground accordingly.
Queer e, whether the corporation were em-
powered to apply public funds for that purpose.
Postmaster-General v. Croydon Corporation,
14 Ry. & Can. Traff. Cas. 158; 8 L. G. R.
1005; 74 J. P. 424— Ry. Com.
Practice — Right to Begin at Hearing before
Railway Commissioners.] — Proceedings before
the Commissioners under section 4 of the
Telegraph Act, 1878, are not in the nature of
an appeal, but are in the nature of an original
application by the Postmaster-General, who is
entitled to begin. lb.
Injunction against Removal of Telephone
Poles.] — A telephone company had telephone
poles in the borough of H., under a licence
from the corporation. In January, 1912, their
undertaking was to be taken over by the
Post Office and all plant then in use would
be paid for. In October, 1910, the corpora-
tion gave the company notice to remove the
poles and establish an underground system.
This was not done, and the corporation
arranged with the Postmaster-General to
establish such a service on January 1, 1912.
The corporation were willing to allow the
poles to be kept up till December 27, 1911,
but required their removal before December 31.
If they remained up till December 31, 300L
would have to be paid for them ; if removed
before December 27 the Government would not
have to pay for them. The corporation
claimed a right to remove the poles : — Held,
that an injunction should be granted till the
trial of the action or until further order
restraining the corporation from removing or
interfering with the poles. Dickens v.
National Telephone Co. ; National Telephone
Co. V. Hythe Corporation, 75 J. P. 557—
Swinfen Eady, J.
Widening Street — Alteration of Character
of Highway — Notice to Postmaster-General to
Remove Telephone Pole from Roadway to
Footpath — Negligence by Latter in Doing
Work — Injury to Third Party — Liability of
Highway Authority — New Street.] — A high-
way authority was engaged in widening a
roadway, which they did by setting back the
kerb of the footpath. They gave notice to
the Postmaster-General, not purporting to be
given under the Telegraph Act, 1863, to
remove a telephone pole from the roadway.
He did so, and filled in the hole negligently.
After the pole was removed the highway
authority re-opened the street to the public,
and the plaintiffs' steam waggon, sinking into
the filled-in hole, was injured : — Held, that
the highway authority was liable, because by
altering the character of the highway they
1585 TELEGKAPH AND TELEPHONE— TENANT FOR LIFE. 1586
were making a new road, and ought to have
seen that it was safe before opening it to
the public. Held, also, that the Postmaster-
General was liable because, having done work
which he was not compellable to do, he had
done it negligently. Steel v. Dartford Local
Board (60 L. J. Q.B. 256) distinguished.
Thompson v. Bradford Corporation, 84 L. J.
K.B. 1440; [1915] 3 K.B. 13; 113 L. T. 506;
79 J. P. 364 ; 13 L. G. E. 884 ; 59 S. J. 495— D.
Transfer of National Telephone Company's
Property to Postmaster-General — Value of
Undertaking.] — By the agreement by which
the Postmaster-General acquired, as from
December 31, 1911, the undertaking of the
National Telephone Company it was (inter
alia) provided that "the value on December 31,
1911, of all plant, land, buildings, stores, and
furniture purchased by the Postmaster-
General . . . shall be the then value (exclu-
sive of any allowance for past or future profits
of the undertaking or any compensation for
compulsory sale or other consideration what-
ever) of such plant, land, buildings, stores, and
furniture, having regard to its suitability for
the purposes of the Postmaster-General's tele-
phonic service, and in determining the value
of any plant no advantage arising from the
construction of such plant, by leave of the
Postmaster-General, upon any railway or canal
over which the Postmaster-General possesses
exclusive rights of way for telegraphic lines
shall be taken into account " : — Held, that
the value of the plant taken over by the
Postmaster-General was to be arrived at by
taking the cost of construction, less deprecia-
tion, and that every expense which was neces-
sary to construct the plant was an element to
be considered, including in such expense
(inter alia) the reasonable costs of obtaining
subscribers' agreements which were in force
at the date of the transfer, and also (Sir James
Woodhouse dissenting) the cost of raising
capital necessary to construct the plant. Held,
further, that the method of depreciation
applicable was to take the value as reduced in
the ratio which the age bore to the life of the
plant, and that the mode of computing the life
of the plant was to take its physical life as
reduced somewhat in respect of defects and
obsolescence of certain classes of the plant.
National Telephone Co. v. Postmaster-General
(No. 1), 29 T. L. E. 190— Ey. Cora. Com-
promised on appeal, 29 T. L. E. 624 — C.A.
Reference under Telegraph (Arbitration)
Act, 1909— Right of Appeal— Jurisdiction —
Decision of Railway and Canal Commission.]
— An appeal on questions of law lies to the
Court of Appeal from decisions arrived at by
the Eailway and Canal Commission acting
under the Telegraph (Arbitration) Act, 1909,
to determine " any difference between the
Postmaster-General and anv body or person
under the Telegraph Acts,'l853 to 1908, or
under any license or agreement relating to
telegraphs (inclading telephones) " : — So held
(Buckley, L.J., dissenting). National Tele-
phone Co. V. Postmaster-General (No. 2),
82 L. J. K.B. 1197; [1913] A.C. 546;
109 L. T. 562; 57 S. J. 661; 15 Ey. & Can
Traff. Cas. 109; 29 T. L. E. 637— H.L. (E.)
TENANT FOR LIFE AND
REMAINDERMAN.
Capital and Income — Debentures — Default
in Payment of Principal and Interest — Defi-
cient Security — Debentures Guaranteed by
Company in Liquidation — Scheme of Arrange-
ment in Winding-up — Postponement of Pay-
ment in Respect of Principal — Payment of
Interest in Meanwhile out of Guarantor Com-
pany's Assets.] — By his will, a testator be-
queathed his residuary estate to trustees upon
trust for sale and conversion, and settled the
net proceeds in trust for tenants for life and
remaindermen as therein mentioned, and he
gave his trustees power to postpone conver-
sion of any part of his estate, and declared
that in the meanwhile the interest arising
from the retained investments, whether they
were of a permanent or wasting nature, was
to be applied as income. The testator died
on July 13, 1910, possessed of debentures in
various companies which had made default in
payment of principal and interest. The
debentures were all guaranteed as to both
principal and interest by the L. G. Co., which
was in liquidation. On July 28, 1910, the
Court sanctioned a scheme of arrangement in
the winding-up under which payment of claims
of creditors (including holders of guaranteed
debentures) in respect of principal moneys was
to be postponed till December 31, 1918, interest
thereon to be made up in the meanwhile to
3 per cent, per annum out of the guarantor
company's assets : — Held, that these payments
out of the guarantor company's assets must be
treated as income of the settled fund and be
paid to the tenants for life, .itkinsoyi, In re;
Barbers' Co. v. Grose Smith (73 L. J. Ch
585; [1904] 2 Ch. 160), distinguished.
Pennington, In re; Pennington v. Pennington,
83 Tj. J. Ch. 54; [1914] 1 Ch. 203; 109 L. T.
814; 20 Manson, 411; 30 T. L. E. 106— C.A.
Distribution by Company of Money and
Shares.] — The testator at the date of his death
held certain shares in the A company. In
1905 that company sold and transferred its
assets to the C company ; and in 1909 it was
resolved at an extraordinary general meeting
to wind up the A company, and the liquidation
was still proceeding. Since the testator's
death the trustees of his will had received
various sums and various distributions of
shares of the C company in respect of the
shares of the A company held by the trustees.
The A company had power to distribute excess
of capital as dividends : — Held, that all distri-
butions down to the winding-up of the A
company were income, and that all payments
received since the liquidation were capital.
Palmer, In re; Palmer v. Cassel, 56 S. J.
363; 28 T. L. E. 301— Eve, J.
Shares Subject to Trusts of Will — Appor-
tionment of Reserve Fund Representing Un-
divided Profits — Issue of New Shares to Old
Shareholders — Exercise of Option — Bonus
Dividend Applied in Payment.] — Where a
company under a scheme for apportioning part
of their reserve fund, which represented un-
1587
TENANT FOR LIFE AND REMAINDERMAN.
1588
divided profits, resolved to pay a bonus
dividend out of the reserve fund to the share-
liolders in proportion to the number of their
shares, so that each shareholder would get
one fully paid new share for each share held
by him, and the shareholders could elect to
take up the allotment of the new shares or not,
such new shares taken up by the trustees of a
deceased testator were held to be capital, and
not income of his estate. The rule in BoucIl
V. Sproule (56 L. J. Ch. 1037; 12 App. Cas.
385) applied. Evans, In re; Jones v. Evans,
82 L. J. Ch. 12; 57 S. J. 60— Neville, J.
Special Dividend — Issue of New
Shares.] — Trust money was invested in a
company. The company passed an extraor-
dinary resolution for the division of a special
bonus amounting to 33J per cent, of the
paid-up capital, and two days later the com-
pany sent to the trustees a conditional allot-
ment letter which conferred on them the right
to receive cash for 483/. 6s. 8d., or to apply
for 48J shares of 10/. each fully paid. The
dividend was described as a bonus dividend
free of tax. The value of the allotted shares
was about 20/. apiece, and the trustees elected
to apply for the forty-eight shares and to sell
to the company the one-third share. On an
application to determine whether the bonus
dividend was to be treated as capital or
income, — Held, that the tenants for life were
entitled to a charge on the new shares for
483/. 6s. 8c/., and that so far as the shares
represented an excess over that sum they were
to be treated as capital. Nortliage, In re
(60 L. J. Ch. 488), followed. Hume Nisbet's
Settlement, In re, 55 S. J. 536; 27 T. L. E.
461— Eve, J.
Cumulative Preference Shares — No Divi-
dend Paid during Life of Tenant for Life —
Possible Future Dividends — Right to Claim.]
— The legal personal representatives of a de-
ceased tenant for life of cunmlative preference
shares have no right in or claim against the
shares after the death of the tenant for life in
respect of a possible dividend to be paid out of
future profits of the company, if any, which
would be applicable to make up a deficiency in
dividend during the life of the tenant for life.
Sale, In re: Nisbet v. Philp. 83 L. J. Ch.
180; [1913] 2 Ch. 697; 109 L. T. 707;
58 S. J. 220— Asthury, J.
Income of Unauthorised Securities —
Residuary Estate — Trust of Sale and Conver-
sion— Power to Postponement Conversion and
Retain Investments.] — A testator gave all his
real and personal estate upon trust for sale
and conversion, with power to postpone such
conversion so long as the trustees should deem
proper, and with power to permit the personal
estate invested at the testator's death in or
upon any stocks, funds, or securities what-
soever yielding income to continue in the same
state of investment so long as the trustees
deemed fit. The testator directed that after
payment of debts, fun(!ral, testamentary
expenses, and duties tlie trustees should stand
possessed of the residue of the moneys pro-
duced by conversion upon trust as to one
moiety to invest and pay the net income to
his wife for life, with a reduction upon re-
marriage, and after her death or re-marriage
upon the trusts declared of the second moiety ;
and the second moiety was to be held upon
trust for investment and to pay the income
to the testator's daughter for life, with
remainder to their children. At the time of
his death the testator held shares in land com-
panies in British Columbia, which were not
investments authorised by the will. These
companies bought land as a speculation, and
paid large but uncertain dividends : — Held,
that the power of retention being for the
benefit of the tenants for life and not for the
convenience of conversion, the tenants for life
were entitled to the whole income of the
shares in the land companies. Chaytor, In re;
Chaytor v. Horn (74 L. J. Ch. 106; [1905]
1 Ch. 233), distinguished. Inman, In re;
Biman v. Inman, 84 L. J. Ch. 309; [1915]
1 Ch. 187; 112 L. T. 240; 59 S. J. 161—
Neville, J.
Bonus on Settled Shares.] — A testator,
by his will, settled shares in an American
railway company. Some years after the
testator's death the company, which had
obtained the necessary powers to increase its
capital, paid a bonus of 50 per cent, to its
stockholders out of accumulated profits, the
payment being made in the form of a 40 per
cent, dividend payable in stock and a
10 per cent, cash dividend : — Held, that the
trustees of the will should deal with the 40 per
cent, stock dividend as an accretion to the
capital of the testator's estate, and with the
10 per cent, cash dividend as income arising
from the estate. Carson v. Carson, [1915]
1 Ir. E. 321— M.E.
Adjustment of Accounts — Settled Shares of
Residue — Payment by Executors for Liabilities
— Administration Occupying more than One
Year — Rate of Interest — Interest on Estate
Duty.] — A testator gave his residuary real
and personal estate on trust for sale and con-
version, and the payment thereout of his debts,
funeral and testamentary expenses, legacies
and annuities, and the duties on those given
free of duty. He settled shares in the residu'=',
on his daughters for life, and after their deaths
for their appointees or children. He empowered
his trustees to postpone the sale or conversion
of any part of his estate, and directed that
the income from his estate, howsoever invested,
should, as from his death, be treated as
income and no part thereof be added to capital.
The estate was a very large one, and the pay-
ments and appropriations in respect of the
debts, funeral and testamentary expenses,
duties, legacies, and annuities, were not com-
pleted till five years after the testator's death :
— Held, that the direction in the will did not
exclude the application of the rule laid down
in Allhusen v. Whittell (36 L. J. Ch. 929;
L. E. 4 Eq. 295). Held, also, that the
tenants for life ought to be deprived only of
the income of such a sum as with the income
on it would discharge the liabilities, and not
of the income of the whole fund required to
discharge them ; that this process of calculation
ought not to be limited to the first year after
the testator's death, but ought to be applied
1589
TENANT FOE LIFE AND REMAINDEEMAN.
1590
also in the case of liabilities discharged after
the expiration of that year ; that the income
ought to be calculated on the average rate of
interest earned by the estate in each year ;
and that the total anaount paid for capital and
interest in respect of estate duty ought to be
treated as being the liability to be discharged
and to be apportioned between capital and
income accordingly. McEuen , In re ; McEuen
V. Phelps (83 L. J. Ch. 66; [1913] 2 Ch.
704), followed. Wills, In re; Wills \.
Hamilton, 84 L. J. Ch. 580; [1915] 1 Ch.
769; 113 L. T. 138; 59 S. J. 477— Sargant, J.
Mortgagee in Possession — Bents and
Profits of Mortgaged Properties — Arrears of
Interest Due at Death of Testator — Rents
Accruing since Testator's Death.] — At the
death of a mortgagee who had gone into pos-
session of the mortgaged properties there were
unsatisfied certain arrears of interest on the
moneys secured. By his will the mortgagee
gave the proceeds of sale of his residuary
estate to trustees upon trust for certain persons
for life and then to others in remainder. The
trustees, being in possession of the mortgaged
properties, had received certain rents from
them which accrued since the testator's death :
— Held, that these rents must be applied first
in discharging the arrears of interest due at
the death of the testator, and that the balance
up to, but not exceeding, the interest accrued
due since the testator's death should be dis-
tributed as income, and that any excess should
be applied as capital. Coaks, In re; Coaks v.
Bayley, 80 L. J. Ch. 136; [1911] 1 Ch. 171;
103 L. T. 799— Warrington, J.
Power to Postpone Conversion — Estate pur
Autre Vie — Wasting Property — Policies of
Assurance on Life of Cestui que Yie — Pre-
miums Payable out of Capital.] — A testator by
his will and codicils gave his residuary real
and personal estate to trustees upon trust in
their discretion, or at the discretion of his
wife, for sale and to invest the proceeds and
pay the income to his wife for life or during
widowhood, with certain remainders over.
The will contained a wide power to postpone
conversion. At his death he was possessed
(inter alia) of an estate pur autre vie of the
annual value of about 244/. in property held
on the trusts of a will, and of two policies of
assurance on the life of the cestui que vie,,
the annual premiums on which amounted to
about 601. There was a difficulty in selling
the life interest : — Held, that the trustees were
entitled to retain the life interest, and that the
widow was entitled to the whole income
thereof. Held, further, that the trustees had
power to postpone realisation of the policies
and that the premiums thereon w^ere payable
out of capital and not out of income. Bennett
In re; Jones v. Bennett (65 L. J. Ch. 422;
[1896] 1 Ch. 778), applied. Sherry, In re;
Sherry v. Sherry, 83 L. J. Ch. 126; [1913]
2 Ch. 508; 109 L. T. 474— Warrington, J.
Consent of Tenant for Life — Direction to
Re-invest in Specified Securities with Like
Consent — Postponement of Sale — Income from
Unauthorised Securities during Postponement
— Right of Tenant for Life to Postpone during
Lifetime. '—When a testator directs a sale and
conversion of his estate, with a power of
postponing such sale, and a trust to re-invest
in specified securities, and at the same time
directs that the consent of the tenant for life
must be obtained to such sale, postponement,
or re-investment — then the effect is that the
tenant for life has practically an option for
sale, which he may postpone for as long as
he chooses, and meanwhile he is entitled to
enjoy the income from the existing estate,
even that from unauthorised securities, in
specie. Rogers, In re; Public Trustee v.
Rogers, 84 L. J. Ch. 837; [1915] 2 Ch. 437;
60 S. J. 27— Neville, J.
Bequest of Farming Business — Right of
Tenant for Life to Take Profits of Business
in Specie.^' — A testator bequeathed to his
trustees all his interest in W. Farm, with all
his farming stock, plant, and crops upon trust
to sell and convert and stand possessed of the
proceeds upon the trusts declared concerning
his residuary estate, and gave them power to
carry on his farming business for such period
as they might deem beneficial for his estate,
and for that purpose to retain and employ in
such business a sufficient amount of his capital
not otherw'ise employed in it, without being
accountable for any loss arising from such
carrying on. He bequeathed his residuary
estate to his trustees upon trust to convert and
invest the proceeds, and to pay the income of
his residuary trust estate to his wife during her
widowhood, and after her death or remarriage
upon certain trusts. The testator died in May,
1913, and the trustees decided to carry on the
business for a time, but did not employ any
further capital in the business. The widow
died in August, 1914. The farm consisted of
between 700 and 800 acres, and w^as value at
the testator's death at 4,746L 4s. In the
period between the testator's death and that
of his widow a large profit was made, amount-
ing to 2,7161. 10s. 2d., but the widow received
nothing during her life. Her executors claimed
that her estate was entitled to the whole profit,
while the residuary legatees claimed that her
estate was entitled only to 4 per cent, per
annum on the value of the farm : — Held, that
in such cases the Court nuist look carefully at
the words of the will for indications of the
testator's intention as to the income of the
unconverted property ; that in this case the
decision in Lambert v. Lambert (27 L. T. 597)
applied ; that there w^as in the will sufficient
indication that the widow should take the
profits of the farming business in specie ; and
that her estate was entitled to the w-hole of the
profits. Slater, In re; Slater v. Jonas,
113 L. T. 691— Eve. J.
Trust for Sale — Power of Postponement
during such Period as Trustees Think Fit —
" Trust premises constituting or representing "
Estate — Appropriation of Share in, to Each
Child — Settlement of Shares — Right of
Tenants for Life to Income of Unauthorised
Investments.] — A testator gave all his real
Miiil ]itrsonal estate on trust for sale and con-
version at such times and in sucli manner as
his trustees should (hink fit. and so that they
should have the fullest power and discretion to
1591
TENANT FOE LIFE AND EEMAINDEEMAN.
1592
postpone the sale and conversion of the whole
or any part of the property during such period
as they should think proper, without being
responsible for loss. The residue of the sale
moneys was to be invested in investments
thereby authorised, and the trustees were to
'■ divide the said trust premises constituting
or representing my residuary estate " into as
many equal shares as the testator should have
children, and appropriate to each child one
share, the income of which was to be paid
to the child for life ; and on his or her death
to hold the share on trusts for his or her
children. The testator left six children. His
estate included some leaseholds, and a large
number of investments of a character not
authorised by the will : — Held, that the un-
authorised securities while not realised were
securities " constituting or representing " part
of the testator's residuary estate, the income
of which he had directed to be paid to the
tenants for life ; and that although the trustees
had not a power to retain the unauthorised
securities permanently, but only a power to
postpone their conversion, the tenants for life
were entitled to the whole of the income arising
from them. Thomas, In re; Wood v. Thomas
(60 L. J. Ch. 781; [1891] 3 Ch. 482), fol-
lowed. Godfree, In re; Godfree v. Godfree,
83 L. J. Ch. 734; [1914] 2 Ch. 110—
Warrington, J.
Gift of Proportion of Income to Tenant
for Life — Unauthorised Investments Retained
— Calculation of Income — Leasehold Sub-
demised at Annual Loss — Incidence of Loss
as between Capital and Income.] — A tenant
for life was entitled to three-fifths of the
income of a testator's estate, and, under the
powers of the will, unauthorised securities —
some productive, others non-productive — were
retained for a favourable opportunity for
realisation. A leasehold forming part of the
estate was sub-let at an annual loss : — Held,
that the unauthorised securities must be
aggregated, and the income therefrom must
be taken as being at the rate of 4 per cent,
on the aggregate estimated value. Held,
further, that the loss on the leasehold was an
outgoing of the estate and chargeable against
the income. Dictum of Kindersley, V.C.,
in Allen v. Embleton (27 L. J. Ch. 297;
4 Drew. 226) followed. Owen, In re; Slater
V. Owen, 81 L. J. Ch. 337; [1912] 1 Ch.
519; 106 L. T. 671; 66 S. J. 381— Neville, J.
Settlement — Jointure Rentcharge — No Cove-
nant to Pay — Apportionment.] — Eeal estate
was settled in 1890 on trusts which included a
jointure rentcharge to the settlor's wife, and
in 1900 there was a re-settlcment subject to the
charges under the earlier settlement. Neither
settlement contained a covenant on the part
of the settlor to pay the rentcharge : — Held,
that, as between the tenant for life and
remainderman under the will of the settlor
exercising a power in the re-settlement, the
rentcharge must be borne wholly out of income,
and not apportioned as between income and
corpus of the settled estate. Popham, In re;
Buller V. Popham, 111 L. T. 524; 68 S. J.
673— Joyce, J.
Settlement of Personalty — Pbvrer to Invest
in Land — Rents and Profits to be Payable as
Income of Personalty — Purchase of Timber
Estate — Periodical Cutting of Trees — Right of
Tenant for Life to Net Proceeds of Sale of
Timber.] — By a marriage settlement person-
sonalty belonging to the wife was settled on
usual trusts, and the trustees were empowered
to invest the property in the purchase of real
estate. Real estate so purchased was to be
conveyed to the trustees on trust for sale, and
in the meantime the " rents and profits " were
to be paid and applied to the person and in
the manner to whom and in which the income
of the property would have been payable or
applicable if the investment had not been
made. The trustees, in pursuance of the
power, purchased an estate in Buckingham-
shire, comprising a large quantity of beech
wood, which in Buckinghamshire is timber.
The trustees, in accordance with the course of
management usual in the neighbourhood, had
from time to time cut a considerable number
of the older trees in order to leave room for the
growth of the younger ones : — Held, on the
construction of the settlement, that the net
proceeds of sale of the trees, after paying all
costs of replanting and repairing fences, be-
longed to the tenant for life as " profits."
Dashwood v. Magniac (60 L. J. Ch. 210, 809 ;
[1891] 3 Ch. 306) applied. Trevor-Batty e's
Settlement, In re; Bull v. Trevor-Batty e,
81 L. J. Ch. 646; [1912] 2 Ch. 339; 107 L. T.
12 ; 56 S. J. 615— Parker, J.
Power to Trustees to Pay for Repairs out
of Capital or Income — " Rents dividends and
interest and other produce" to be Deemed
Income — Lease by Testator — Breach of Cove-
nant— Damages — Capital or Income.] — By
his will the testator devised and bequeathed to
his trustees all the real and personal estate of
which he might die possessed upon the usual
trusts for sale and conversion, with power to
postpone and to hold the proceeds after pay-
ment thereout of certain sums upon trust to
divide the same into certain shares, some of
which he settled, and he empowered his
trustees to manage and order all the affairs
thereof as regards letting and repairs and to
make out of the income or capital any outlay
which they might consider necessary for im-
provements or repairs. He then provided that
for the purposes of enjoyment and transmission
under the trusts therein contained his real
and personal estates should be considered as
money from the time of his decease, and the
" rents dividends and interests and other
produce " thereof respectively to accrue after
his decease, and until the actual sale, con-
version, and getting in thereof, should be
deemed the actual income thereof. At his
death the testator was possessed of a certain
theatre subject to a lease granted by him
which contained the usual lessee's covenants
to repair. The lessee did not perform his
obligations under the lease, and the trustees
brought an action against him for damages
for breach of covenant and recovered judgment
for a considerable sum of money by way of
damages. The money so recovered was repre-
sented in part by a sum of 900L in the trustee's
hands : — Held, upon the construction of the
1593 TENANT FOR LIFE AND REMAINDERMAN— THE ATEE. 1594
will, that the 900/. must be treated as corpus
of the testator's residuary estate. Lacon's
Settlement, In re; Lacon v. Lacon (80 L. J.
Ch. 302, 610; [1911] 1 Ch. 351; [1911] 2 Ch.
17), considered. Pyke, In re; Birnstingl v.
Birnstingl, 81 L. J. Ch. 495; [1912] 1 Ch.
770; 106 L. T. 751 ; 56 S. J. 380— Warrington,
J.
Management — Freehold Ground Rents —
Repairing Leases — Cost of Survey and Notices
to Repair — Tenant for Life and Remainder-
man.]— By a settlement of freehold property
contained in a testator's will a power of
management was given to the trustees, with
power to pay the costs of management out of
rents and profits. The property consisted of
six hundred and fifty houses let on repairing
leases for ninety-nine years at very small
ground rents. The trustees employed a sur-
veyor to report on the state of the property,
and as a result served notices to repair on a
large number of the tenants. The costs of
so doing amounted to about half the annual
income of the settled estate : — Held (affirming
the decision of Neville, J.), that these
expenses were costs of management, and
payable therefore out of income under the
provision in the will. But held, that the Court
had power under section 36 of the Settled Land
Act, 1882, to direct their payment out of
capital, if it thought fit, and that in the special
circumstances of the case it would do so.
Tubbs, In re; Dyke v. Tubbs, 84 L. J. Ch.
539 ; [1915] 2 Ch. 137 ; 113 L. T. 395 ; 59 S. J.
508— C. A.
Trust Legacy — Investment on Insufficient
Security — Death of Tenant for Life — Arrears
of Interest — Interim Distribution of Rents —
Realisation of Security — Distribution of Pro-
ceeds of Sale — Hotchpot.] — A trust legacy
was invested on mortgage which proved to be
insufficient, and at the death of the tenant for
life there were large arrears of interest. By
an order the rents were apportioned in the
proportion of the arrears due to the tenant for
life at her death and the arrears since due to
the remaindermen without prejudice to any re-
adjustment when the security was realised.
The security was subsequently realised, and
the purchase money was placed on deposit : —
Held, that the rents paid under the order must
be brought into hotchpot, and the aggregate
of those rents and the purchase money should
be distributed between the representatives of
the tenant for life and the remaindermen in
the proportion which the arrears of rent due
at the death of the tenant for life bore to the
aggregate of the principal money and arrears
due to the remaindermen. Southwell, In re;
Carter v. Hungerford, 85 L. J. Ch. 70;
113 L. T. 311— Eve, J.
Profits of Business Payable to Tenant for
Life — Cost of Repairs to Machinery. — Depre-
ciation.] — A testator gave his trustees
authority to carry on his business, and be-
queathed to his widow during her life " the
profits arising from my business " : — Held,
that the trustees had properly charged against
the profits before paying them to the widow a
yearly sum for depreciation of the machinery
used in the business in addition to the cost of
repairs. Crabtree, In re; Thomas v. Crabtree,
106 L. T. 49— C.A.
Gift of Successive Legal Interests in
Chattels — Loss of Chattels by Default of First
Taker — Death of First Taker — Remedy of
Ulterior Taker against Estate — First Taker
Trustee or Bailee for Ulterior Taker — " Actio
personalis moritur cum persona" — Measure
of Damages.] ■ — Where successive legal
interest in chattels are created the first taker
is, subject to his own life interest, in the posi-
tion of a trustee or bailee of the chattels for
the subsequent takers, and bound, through his
legal personal representatives, to deliver over
the possession of the goods on his own death.
If a chattel has been lost through his default,
his representatives cannot set up his tort in
answer to the claim of the ulterior taker, and
the rule " Actio personalis moritur cum per-
sona " has no application to the case. Swan,
In re; Witham v. Swan, 84 L. J. Ch. 590;
[1915] 1 Ch. 829; 113 L. T. 42; 31 T. L. E.
266— Sargant, J.
The ulterior taker, having been entitled to
receive the specific article, is entitled to com-
pensation for the loss from the first taker's
estate in the shape of money sufficient to enable
him to replace that article, and not merely to
the selling value of the article or the middle
price between that amount and the amount
required to replace it, the principle applicable
being that applicable to the case of trust pro-
perty lost through a sale by the trustee in
breach of trust. lb.
THAMES.
Thames Conservancy.] — See Water.
Collision on.] — See Shipping.
THEATRE.
See also Vol. XIV. 29, 2050.
Engagement of Operatic Singer — Singer not
Allowed to Perform — Damages.] — The plain-
tiff, an operatic singer, was engaged by the
defendant to sing at four performances in
London for a certain sum, half to be paid in
advance. This sum in advance was duly paid
to the plaintiff. At the final rehearsal the
defendant was not satisfied with the plaintiff's
performance and refused to allow him to
appear, and for this the plaintiff claimed
damages. The County Court Judge held
that the plaintiff was entitled to treat the
contract as determined and to claim the unpaid
half of the contract sum. and further that he
was entitled to damages in consequence of not
being allowed to perform after being adver-
tised to appear. On appeal by the defendant,
— Held, that the County Court Judge was
1595
THEATEE.
1596
wrong in taking the view that, inasmuch as
the plaintiff was not allowed to perform, he
was entitled to damages for breach of contract,
and that the Judge ought to have considered
whether, upon the facts in regard to the one
stage rehearsal which the plaintiff attended,
the defendant was justified in coming to the
conclusion at which he arrived and not allow-
ing him to perform. Zamco v. Ha^nmerstein,
29 T. L. E. 217— D.
Engagement of Music-hall Artist for Week
— Whether Salary Due before Completion of
Week.] — A music-hall artist was engaged to
perform for one week at 180L per week.
Clause 8 of the agreement provided that " in
case the artiste shall, except through illness
... or accident . . . fail to perform at any
performance the artiste shall pay to the
management as and for liquidated damages a
sum equal to the sum which the artiste would
have received for such performance ..."
Clause 12 provided that " the artiste shall
not assign, mortgage, or charge the artiste's
salary nor permit the same to be taken in |
execution. Xo salary shall be paid for days
upon which the theatre is closed by reason
of national mourning. . . . No salary shall
be payable for any performance at which the
artiste may not appear through illness or his
own default. ..." Clause 16 provided (inter
alia) that " if the artiste shall commit any
breach of any of the terms and conditions of
this contract or of the rules, the manage-
ment . . . may forthwith determine this con-
tract, and the artiste shall have no claim upon
them for salary other than a proportion for
performances played, expenses, costs, or other-
wise " : — Held, that the agreement provided
for a salary for the week, and that unless some
of the events, mentioned in the foregoing
clauses, happened, no portion of the salary
became due to the artist until the end of the
week and until he had fully completed all the
performances contemplated. Maplesonw Sears,
105 L. T. 639; 56 S. J. 54; 28 T. L. E. 30
— D.
Alteration of Contract — Subsequent Arrange-
ment— Music-hall Contract.] — Before the war
the defendant agreed to perform twice every
evening as a comedian at the plaintiffs' music
hall for one week beginning on October 12,
1914, at a salary of loOZ. The contract pro-
vided that " in case the artist shall, except
through illness ... or accident . . . fail to
perform at any performance, he should pay to
the management as and for liquidated damages
a sum equal to the sum which the artist would
have received for such performance, in addition
to costs and expenses incurred by the manage-
ment through the default of the artist." After
the outbreak of war an arrangement was come
to between the managements of the various
music halls and the artistes, including the
defendant, that the gross receipts of the halls
during the war should be divided into two
equal parts, of which the management should
take one part and the performers at the hall
the other part, sharing that part in the propor-
tion of their respective salaries. The defendant
having failed to perform at the plaintiffs' hall,
they brought an action for damages against
him : — Held, that in order to ascertain the
measure of damages the 'sum fixed in the con-
tract had to be altered in view of the subse-
quent arrangement, and that the plaintiffs
were entitled to recover such proportion of the
artistes' share in the receipts which would
probably have been received if the defendant
had performed his agreement, as the defendant
would have been entitled to. Golder's Green
Amusement and Development Co. v. Relph,
31 T. L. E. 343— Bailhache, J.
Stage Performances — Specified Dates —
Artist's Right to Transfer — New Dates — How
to be Fixed.] — The plaintiff, who was a music-
hall artist, and tlie defendants, who were
music-hall proprietors, made a contract under
which the plaintiff was to perform at certain
of the halls on specified dates, and the con-
tract contained a clause stating that " the
dates mentioned in this contract may be
transferred by [the plaintiff] provided two
months' notice is given by artist, other dates
to be given in lieu of dates transferred." The
plaintiff gave notice to transfer a number of
dates, and the defendants then claimed that
they were entitled to fix the dates on which
the plaintiff was to perform. In an action
by the plaintiff against the defendants for
breach of the contract, — Held, that under the
above clause neither party was entitled to fix
the dates, but that while the artist had a
right to transfer dates the new dates were
to be fixed by agreement, each party to act
reasonably. Terry v. Moss's Empires, Lim.,
32 T. L. E. 92— C.A.
Licence — Royal Albert Hall.] — Although
the corporation of the Albert Hall possess
powers under their Eoyal charters of 1867 and
1887 sufiiciently wide to render the public per-
formance of stage plays in a portion of their
building known as the Eoyal Albert Hall
Theatre intra vires, such charters do not
amount to letters patent to keep that place for
the public performance of such plays within
the meaning of section 2 of the Theatres Act,
1843, so as to obviate the necessity for obtain-
ing a theatre licence for the theatre. Royal
Albert Hall v. London County Council,
104 L. T. 894; 75 J. P. 337; 9 L. G. E. 626;
27 T. L. E. 362— D.
Music-hall Sketch — Agreement by Artist —
Exclusive Services — Reproduction of Perform-
ance on Cinematograph.] — The plaintiffs, who
were music-hall proprietors, made an agree-
ment with the defendant by which it was
provided that the defendant should give the
plaintiffs his exclusive services and that he
should not permit any colourable imitation,
representation, or version of his performance
to be given within a certain radius. It was
alleged by the plaintiffs that the defendant
permitted the representation of one of his
sketches on a cinematograph at certain picture
palaces within the prescribed area, and they
brought an action against him to restrain him
from this alleged breach of the agreement : —
Held, on the evidence, that the defendant had
taken no part in the alleged reproduction of
his performance, and that therefore he was
1597
THE ATKE— TIME.
1598
entitled to judgment. London Theatre of
Varieties v. Evans, 31 T. L. R. 75— C. A.
Seat in Theatre — Forcible Removal of
Visitor — Right to Damages.] — If a visitor to
a theatre has paiti for his seat, he has a right
to retain the seat so long as he behaves
himself and keeps within the regulations laid
down by the management. (Phillimore, L.J.,
dissenting). Wood v. Ledbitter (14 L. J. Ex.
161; 13 M. & W. 838) discussed. Hurst v.
Picture Theatres, Lim., 83 L. J. K.B. 1837;
[1915] 1 K.B. 1; 111 L. T. 972; 58 S. J. 739;
30 T. L. R. 642— C. A.
Decision of Channell, J. (30 T. L. E. 98),
affirmed. lb.
Incident in Performance — Injury to
Member of Audience — Warranty by Lessee.]
— The plaintiff paid for a seat in a theatre, of
which the defendant was lessee and manager.
The performance of the play had been arranged
for by the defendant with the director of a
theatrical company, who was to provide the
actors and the scenery and to receive a share
of the receipts, the defendant taking the re-
mainder. At one part of the play pistols with
blank cartridges were fired, and one of the
cartridges being too small acted as a bullet
and wounded the plaintiff. The plaintiff
brought a County Court action against the
defendant for personal injuries, and the Judge
held that in all circumstances the defendant
warranted that all persons connected with the
performance should exercise reasonable care,
so as not to expose the audience to unreason-
able danger, and he found that it had not
been conducted with reasonable care, and he
awarded the plaintiffs damages. Per Bailhache,
J. : The defendant warranted that any dan-
gerous incident in the play should be performed
with due care and therefore the plaintiff was
entitled to recover. Per Shearman, J. : If in
fact a performance was not dangerous a plain-
tiff could not recover because of the negligent
way in which a certain act was performed
which was not dangerous when not negligently
performed, and as the Judge applied a wrong
rule of law there should be a new trial. Cox v.
Coulson, 31 T. L. R. 390— D.
Obstruction Caused by Queue.] — See Way.
Cinematograph Theatres.] — See Cinemato-
GUAPH.
THELLUSSON'S ACT.
See ACCUMULATIONS.
THREATS.
To Infringe Patent.]— 5ee Patent.
TIME.
See also Vol. XIV. 44, 2053.
Computation of Term — Trust for Sale at
Expiration of Twenty-one Years — Rule
against Perpetuities.] — By a settlement dated
May 13, 1892, freehold hereditaments were
expressed to be assured unto and to the use of
trustees, and it was declared that the trustees
should stand possessed of the hereditaments
during the term of twenty-one years from the
date of the settlement upon trust to apply the
rents and profits thereof as therein mentioned.
The settlement then provided : "It is hereby
declared that the said trustees or trustee shall
at the expiration of the said term of twenty-
one years sell the said hereditaments and
premises either together or in parcels " and
otherwise as therein mentioned : — Held, that
the trust for sale did not infringe the rule
against perpetuities and was a good trust.
Held, further, that upon the true construction
of the settlement the term of twenty-one years
began at midnight on May 12, 1892, and
expired at midnight on May 12, 1913. English
V. Clijf, 83 L. J. Ch. 850; [1914] 2 Ch. 376;
111 L. T. 751 ; 58 S. J. 687 ; 30 T. L. R. 599
— Warrington, J.
" Month." — A wrote to B offering to buy
land of B at a certain price, specifying the
date for completion, and that the purchase
money should be paid as to a part down and
as to the residue within two years, " and to
be secured to your satisfaction." The offer
further stated that for the space of a month B
was to be at liberty to accept the offer, and if
not accepted conditionally or otherwise within
that time the offer was to be considered as
withdrawn. The offer was dated September,
but omitted the day : — Held, in an action for
specific performance, that " month " meant
" lunar month," and that the offer ran from
the day on which the offer was in fact made.
Morreil v. Studd, 83 L. J. Ch. 114; [1913]
2 Ch. 648; 109 L. T. 628; 58 S. J. 12—
Astbury, J.
Lunar or Calendar — Primary Meaning
— Construction — Controlled by Context or
Surrounding Circumstances.] — In every con-
tract, not being a contract relating to a mer-
cantile transaction in the City of London,
the word " month " prima facie means lunar
month, but the context or the surrounding
circumstances may shew that the word was not
used to denote a lunar month, and it may then
be construed as meaning a calendar month.
Helsham-Jones v. Hennen ((■ Co., 84 L. J. Ch.
569; 112 L. T. 281; [1915] H. B. R. 167—
Eve, J.
" Offender whose age does not exceed sixteen
years."] — A person wlio at tlie time of com-
mitting the offence of carnally knowing a girl
under the age of thirteen is under the age of
sixteen, but who at the time he appears in
Court to answer the indictment charging him
with the offence is over the age of sixteen, is
not a person " whose age does not exceed
sixteen years " within the meaning of the
proviso to section 4 of the Criminal Law
1599
TIME— TRADE AND TRADE MARK.
1600
Amendment Act, 1885. In such a case, there-
fore, the Court has no power under that proviso
to order the offender to be whipped. Rex v.
CawtliTon, 82 L. J. K.B. 981 ; [1913] 3 K.B.
168; 109 L. T. 412; 77 J. P. 460; 23 Cox C.C.
548; 29 T. L. E. 600— CCA.
Delivery of Bill One Month before Action.]
—By section 37 of the Solicitors Act, 1843,
" no attorney or solicitor . . . shall commence
or maintain any action or suit for the recovery
of any fees, charges, or disbursements for any
business done by such attorney or solicitor,
until the expiration of one month after such
attorney or solicitor . . . shall have delivered
unto the party to be charged therewith, or
sent by the post to or left for him at his
counting house, office of business, dwelling
house, or last known place of abode, a bill of
such fees, charges, and disbursements " signed
by such attorney or solicitor or inclosed in or
accompanied by a letter signed in like manner
referring to such bill -.—Held (Buckley, L.J.,
dissenting), that, on the true construction of
the section, if a solicitor sends his bill by post
the posting must take place at such time that
in the ordinary course of post the bill should
have reached its destination one clear calendar
month before the date on which the action is
commenced. Broione v. Black, 81 L. J. K.B.
458; [1912] 1 K.B. 316; 105 L. T. 982;
56 S. J. 144; 28 T. L. K. 119— CA.
Decision of the Divisional Court (80 L. J.
KB. 758; [1911] 1 K.B. 975) affirmed. lb.
TOWAGE.
See SHIPPING.
TITHE.
See ECCLESIASTICAL LAW.
TOBACCO.
See EEVENUE (Excise).
TOLLS.
See MAEKETS AND FAIES.
TORT.
Liability of SerYants of the Crown.] — See
Crown.
TOWN PLANNING.
See LOCAL GOVEENMENT.
TOTAL LOSS.
See SHIPPING (Insurance).
TRADE AND TRADE
MARK.
A. Trade.
1. In General, 1600.
2. Trade Name, 1601.
B. Imitation of Goods, 1602.
B. Trade Mark.
1. Action to Restrain Infringement, 1605.
2. Unauthorised Use of Royal Arms, 1605.
8. Registration.
a. What may be Eegistered.
i. Generally, 1606.
ii. Fancy Words — Words not in
Common Use, 1608.
iii. Distinctive Device, Word,
Mark, &c., 1609.
iv. Similarity — Calculated to
Deceive, 1613.
b. Practice.
i. Generally, 1614.
ii. Eectification of Eegister, 1615.
iii. Opposition to Eegistration,
1618.
C Merchandise Marks, 1618.
D. Designs, 1620.
A. TEADE.
1. In General.
See also Vol. XIV. 2061.
Advertisements Calculated to Deceive.] — No
person has a right to sell or offer for sale goods
of another trader of an inferior class under
conditions calculated to represent such goods
as being goods of the same trader of a superior
class. If he does so, he commits an actionable
wrong, irrespective of motive or fraud, and
may be restrained by injunction. Spalding V.
Gamage, Lim. {No. 2), 84 L. J. Ch. 449;
113 L. T. 198; 32 E. P. C 273; 31 T. L. E.
328— H.L. (E.)
Semble, that the right invaded is the pro-
perty in the business or goodwill likely to be
injured by the misrepresentation. The question
whether the matter complained of amounts to
a misrepresentation is for the Judge who tries
the case, and the plaintiff is entitled to such
damages as flow naturally from the unlawful
action. 76.
Decision of the Court of Appeal (110 L. T.
530) reversed. lb.
1601
TRADE AND TEADE MARK.
1602
Contracts in Restraint of Trade.] — See
Contract.
2. Trade Name.
See also Vol. XIV. 75, 2001.
Similarity — "Everybody's Magazine" —
"Everybody's Weekly."] — The plaintiffs, an
American company, were the proprietors and
publishers of a shilling monthly magazine
called Everybody's Magazine, which was first
issued in 1899. Subsequently the defendants
published a weekly penny paper called Every-
body's Weekly. In an action by the plaintiffs
to restrain the defendants from selling any
periodical with the title " Everybody's," —
Held, that the action failed, as the two
periodicals were not likely to compete with
one another, and the Court could not restrain
the use of a common and popular expression
like " Everybody's." Ridgway Co. v. A7nal-
gamated Press, 29 E. P. C. 130; 28 T. L. E.
1-19 — Warrington, J. ;
Magazine of Fiction.] — The plaintiffs, the
proprietors of a magazine called MontJily
Magazine of Fiction, which they had published
since 1885, sought to restrain the defendants
from publishing a magazine which they called
CasselVs Magazine of Fiction and Popular I
Literature : — Held, that the action failed, as I
the plaintiffs were not entitled to any monopoly
in the words " Magazine of Fiction," which I
were purely descriptive. Held, further, that 1
the use of the words by the defendants was j
not likely to lead to confusion in the minds j
of the public. Stevens v. Cassell d Co., I
30 E. P. C. 199; 29 T. L. E. 272— Neville, J. I
Newspaper — Similarity of Names — Mono- '
poly.] — There is in law no monopoly in the !
name of a newspaper. To entitle the pro- j
prietors of a newspaper to an injunction !
restraining the publication of another news-
paper with a similar name, they must shew
that the use of that name is calculated to lead
to the belief that the defendants' newspaper
is the plaintiffs', and that the use of such
name is injurious to them. Outramv. London
Evening Newspapers Co., 28 E. P. C. 308;
55 S. J. 255; 27 T. L. E. 231— Warrington,
Transfer to Company of Right to Use Name
— No Transfer of Goodwill — Restraining Com-
pany from Trading in Registered Name.] —
The plaintiffs were incorporated in 1897 to
carry on a business of caterers theretofore
carried on by a firm named Kingston & Miller.
One of the managing directors had a son,
Thomas Kingston, who assisted in the manage-
ment, and so became skilled in the business
and well known to the customers. In 1911
Thomas Kingson left his employment in the
business and promoted the defendant com-
pany, which was formed to carry on a business
of the same character as that of the plaintiffs,
and to secure and turn to account Thomas
Kingston's services as an expert in the
business. He was shortly afterwards
appointed managing director : — Held, that the
use of the name " Kingston " by the defen-
dants was likely to mislead and deceive the
public into the belief that the defendants were
the same company as the plaintiff's ; that even
if Thomas Kingston could, by selling the good-
will of a business which he had carried on
in his own name to a company, have con-
ferred on it the right to use the name, he
had nothing in the nature of a goodwill to
transfer, and so could not give the defendants
the right to use his name ; and that the
defendants must be restrained from using
their registered name or any other so nearly
resembling that of the defendants as to be
calculated to deceive, and from carrying on
a similar business under it. Fine Cotton
Spinners and Doublets Association v.
Harwood, Cash d Co. (76 L. J. Ch. 670;
[1907] 2 Ch. 184) followed. Kingston, Miller
d- Co. V. Kingston £ Co., 81 L. J. Ch. 417;
[1912] 1 Ch. 575; 106 L. T. 586; 29 E. P. C.
289; 56 S. J. 310; 28 T. L. E. 246—
W^arrington, J.
Right to Trade under One's Own Name —
Similarity of Names — Confusion of Names and
Goods.] — A man, so long as he acts honestly,
may trade under his own name, even though
the similarity of such name to the name under
which another person has previously been
trading may occasionally lead to confusion or
lead to the goods of the one being mistaken
for the goods of the other trader. Actiengesell-
schaft Hommel's Hcematogen v. Hommel,
29 E. P. C. 378; 56 S. J. 399— Eve, J.
Similarity of Name — Imitation — Injunc-
tion.]— Injunction granted restraining the use
by the defendants of the word " Lloyds " or
any title or description including that name
in connection with the business of capitalists
or financiers or any similar business, or in
connection with the word "Trust." Lloyds
Bank v. Lloyds Investment Trust Co.,
29 E. P. C. 545; 28 T. L. E. 379— Neville, J.
Injunction granted restraining the defen-
dants from carrying on business under the
name of Lloyds, Southampton, Lim., or under
any other name calculated to produce the
belief that their business was the business
of, or any branch or department of, Lloyds'
business. Lloyds £ Dawson Brothers v.
Lloyds, Southampton, 29 E. P. C. 433;
28 T. L. E. 338— C.A. Eeversing, 56 S. J.
361 — Warrington, J.
Infringement — Passing off — Fraud.] —
Where a parson manufactures and sells an
article under a name that is not his own,
but is the name under which another firm
manufactures and sells a similar article, it will
be presumed that his intention in adopting the
said name is fraudulent, and an injunction
will be granted to restrain him, even if no
deception has in fact resulted. Ash v. Invicta
Manufacturing Co., 28 E. P. C. 252; 55 S. J.
348— Warrington, J. Eeversed, 28 E. P. C.
597— C.A.
3. Imitation of Goods.
Passing off — Substitution of Goods — Acci-
dental and Inadvertent Substitution — " Trap "
Orders— Delay in Delivery of Particulars of
51
1603
TRADE AND TEADE MAEK.
1604
Occasions Relied on.]— In 1906 M. E. P., a
trading corporation, discontinued stocking and
selling L.'s goods, and in their place offered
goods of their own manufacture, the shop
assistants being instructed at the time to
explain to customers that only M. E. P.'s
goods were sold, and to push their sale. In
July, 1910, L. sent a number of their em-
ployees to M. E. P. shops with orders for L.'s
goods. L. alleged that in several instances
M. E. P. goods were supplied without any
explanation being offered, or the notice of the
customer being drawn to the substitution. In
August, 1910, L. instituted an action for an
injunction to restrain the passing off of
M. E. P. goods for L.'s goods; but particulars
of the instances alleged were not delivered to
the defendants until December, 1910 : — Held,
that in so far as there had been any substitu-
tion of M. E. P.'s goods for L.'s goods it was
inadvertent, and not part of a deliberate
policy of fraud, and that, on the defendants
undertaking that their goods should not be
supplied in response to orders for the plaintiffs'
goods without the consent of the purchaser
thereto being first obtained, no injunction
should be granted; and that, as the plaintiffs
had been guilty of negligence in delivering
particulars of the alleged " trap " orders, there
should be no order as to costs. Lever v.
Masbro' Equitable Pioneers Society (No. 1),
105 L. T. 948: 29 E. P. C. 33; 56 S. J. 161—
Joyce, J. Affirmed, 106 L. T. 472— C.A.
Colourable Imitations — Selling Defen-
dants' Goods as those of Plaintiffs — Use of
Word "Patent,"] — The defendants made and
sold pens of the same shape as those made by
the plaintiffs, stamped them with the same
numbers, and put them in boxes resembling
the plaintiffs' boxes. The plaintiffs' goods
were stamped with the word " Patent,"
though they were not patented : — Held, that
the shapes of the pens were common to the
trade, and that the boxes were not likely to
deceive, and therefore the plaintiffs' case
failed. Held, also, that had the plaintiffs
made out a case, the use of the word
" patent " was only a collateral misrepresen-
tation, on which the defendants could not
have relied. Perry v. Hessin, 29 E. P. C. 101 ;
56 S. J. 176— Eve, J. Affirmed, 29 E. P. C.
509; 56 S. J. 572— C.A.
Circular — "Taylors' wine."] — The de-
fendants, who were wine merchants, issued a
large number of circulars in which imder the
head of vintage ports was the following item :
"Taylors, Vintage 1908, Bottling year 1910.
Price, 27.S." The wine so offered was not the
plaintiff.s' wine which was known in the trade
as " Taylors'." but was the wine of one
Alexander D. Taylor. The wine had been
described as " Taylors' " in the circular by
inadvertence. When the defendants' attention
was called to the matter they agreed not to
issue any further circular containing the mis-
take, but they refused to make a public
apology. On a claim for an injunction at the
instance of the plaintiffs, — Held, that it was
no answer to the claim for an injunction for
the defendants to say that they would not
issue the circular again ; they were bound to
do something to remedy their previous act.
Yeatman v. Homberger, 107 L. T. 742;
29 E. P. C. 645; 29 T. L. E. 26— C.A.
Affirming, 56 S. J. 614— Eve, J.
Malted Milk — Descriptive Designation.]
— Held, that the term " malted milk " was
a descriptive designation, and that the plain-
tiffs, who manufactured and sold a preparation
known as " Horlick's Malted Milk," were not
entitled to restrain the defendant from manu-
facturing and selling a similar preparation
under the name " Hedley's Malted Milk."
Horlick's Malted Milk Co. v. Summerskill .
32 T. L. E. 63— Joyce, J.
Brinsmead Pianos.] — Held, that there
being no evidence of dishonesty, the defendant
Brinsmead could not be restrained at the
instance of the plaintiffs from putting his own
name on pianos made by him, although the
fact of his doing so might bring him some
advantage in connection with the sale of the
pianos made by him, in consequence of his
surname being the same as that of the plaintiff
firm. Brinsmead v. Brinsmead (No. 1),
30 E. P. C. 137 ; 57 S. J. 322 ; 29 T. L. E.
237— Warrington, J. Affirmed, 30 E. P. C.
493; 57 S. J. 716; 29 T. L. E. 706— C.A.
Taxicabs.] — Injunction granted restrain-
ing the defendant from so getting up his taxi-
cabs as to pass them off as and for the taxicabs
of the plaintiffs. Du Cros V. Gold, 30 E. P. C.
117 ; 29 T. L. E. 163— Swinfen Eady, J.
Fireworks.] — See Brock d Co. v. Pain,
post, col. 1605.
Revoked Patent.] — The appellants had
for many years used a distinctive device in
connection with their goods, which had
acquired a high reputation among their
customers and had become associated with the
goods. The appellants' predecessors had
taken out a patent for this device, which was
subsequently revoked : — Held, that the appel-
lants were entitled to an injunction to restrain
the respondents from selling goods with a
device which was not sufficiently distin-
guished from that of the appellants and was
likely to deceive, and that this right was not
taken away bv the revocation of the patent.
Edge v. Niccolls, 80 L. J. Ch. 744; [1911]
A.C. 693; 105 L. T. 459; 28 E. P. C. 582;
55 S. J. 737; 27 T. L. E. 555— H.L. (E.)
Exclusive Agent for Sale — Right to Main-
tain Action — Association of Goods with Agent
— Distinctive Peculiarity in Get-up.] — Where
an exclusive agent for sale is injured in his
business by goods being passed off as the goods
for which he has the exclusive agency, he
cannot maintain a passing-off action in the
absence of evidence that the goods sold by
him have in some way become associated with
him in the market, as, for instance, by reason
of some distinctive peculiarity in the get-up.
Dental Manufacturing Co. v. De Trey d Co.,
81 L. J. K.B. 1162: [1912] 3 K.B. 76;
107 L. T. Ill; 29 E. P. C. 617; 28 T. L. E.
498— C.A.
Semble, that, if he can produce such evi-
dence, he may maintain an action. lb.
1G05
TRADE AND TEADE MARK.
1606
B. TRADE MARK.
1. Action to Restrain Infringement.
See also Vol. XIV. 118, 2071).
Validity of Trade Mark — Passing off Goods.]
— The plaintiffs, a firm of pyrotefhnists, and
their prctlecessors in business had for nearly
fifty years — namely, since 1866 down to 1910
— been making and selling fii-eworks under the
description " Crystal Palace Fireworks," they
having throughout that period the exclusive
right of giving firework displays at the Crystal
Palace. In 1891 they had registered as an old
trade mark in connection with fireworks the
words " Crystal Palace." They had also regis-
tered two other trade marks consisting of
representations of the Crystal Palace. They
used the term for all their goods of the firework
class. It was not limited lo the displays that
they gave at the Crystal Palace. Their goods
were asked for as " Crystal Palace Fireworks,"
and were supplied under that name. The
plaintiffs having ceased to have the contract,
the defendants, another firm of pyrotechnists,
obtained in the year 1910 the right to give
firework displays at the Ci\ystal Palace, and
thereupon they sought to describe their fire-
works as " Crystal Palace Fireworks " with
the addition of their own name : — Held, that
the plaintiffs having for nearly fifty years
applied the words " Crystal Palace " to their
goods, it was irrelevant to consider whether
they had still got the right to give displays
of fireworks at the Crystal Palace ; that the
use of those words did not imply that they
had ; and that therefore they were entitled
to a perpetual injunci ion to restrain the
defendants. Linoleum Manufacturing Co. v.
Naini (47 L. J. Ch. 430; 7 Ch. D. 834) dis-
tinguished. Brock <£• Co. v. Pain, lOo L. T.
976; 28 R. P. C. 697— C.A.
2. Unauthorised Use of Royal Arms.
The object of section 68 of the Trade Marks
Act, 1905, prohibiting the unauthorised user
of the Royal Arms in connection with any trade
or business in such manner as to be calculated
to lead to the belief that the user is authorised,
is to prevent the spreading of such a belief
amongst the public generally, and not only
amongst present or prospective customers, or
any other particular persons. Royal Warrant-
Holders' Association v. Deane (f Beal, 81 L. J.
Ch. 67; [1912] 1 Ch. 10: 105 L. T. 623;
28 R. P. C. 721; 56 S. J. 12; 28 T. L. R. 6
— Warrington, J.
The defendants carried on business as
engineers, manufacturers, and contractors in
premises on the front of which there was,
and had been for many years before the defen-
dants acquired the business, a representation
of the Royal Arms, with crest, supporters, and
mottoes. No such words as " By Appoint-
ment," the use of which was imposed as a
condition by some of the Departments granting
authority to use the Royal Arms, appeared in
connection with the representation ; and the
defendants, who had no authority to use the
arms, and did not supply goods to any member
of the Royal Family, did not use them on their
stationery, or otherwise except on their
premises : — Held, that the defendants were
using the Royal Arms in connection with their
business, and in such manner as to be calcu-
lated to lead to the belief that they had
authority to use them ; and that they must be
restrained by injunction under section 68 from
using them on their premises or otherwise. lb.
The defendant had for a number of years
carried on business as a victualler in Dublin
and used in his advertisements and billheads
the Royal Arms, with the words " By Appoint-
ment." He had no authority to use the Royal
Arms. His predecessor in the business, from
whom he had purchased it, had been granted
in 1839 by the then Lord Lieutenant of Ireland
a warrant to use the Vice-regal Arms, and this
warrant had been handed to and was in the
possession of the defendant. He had supplied
meat to the late King Edward when he visited
Ireland. The defendant had used the Royal
Arms in connection with his business for a
number of years without interference, and had
acted under the bona fide belief that he was
entitled to use them. He refused to discontinue
such user although called upon by the plain-
tiffs before action to do so : — Held, in an action
by the plaintiffs, an incorporated association
authorised to use the Royal Arms and autho-
rised by the Lord Chamberlain to bring the
action, that the defendant was using the Royal
Arms without the requisite authority, and that
the plaintiffs were entitled to an injunction
restraining such user. Royal Warrant Holders'
Association v. Sullivan, [1914] 1 Ir. R. 236 —
Barton, J.
Evidence — Asking Witness Effect on His
Mind of Display of Arms — Admissibility.] —
The question, put to a witness who had
frequently passed the defendants' premises,
what was the conclusion in his mind arising
from the exhibition of the arms, held admis-
sible, on the analogy of the putting to a
witness in a passing-off case of the question
whether he was in fact deceived by the make-
up of the defendants' goods. Observations of
Farwell, J., in Bourne v. Swan if: Edgar.
Lim. ; Bourne's Trade Mark, In re (72 L. J.
Ch. 168; [1903] 1 Ch. 211), applied. Royal
Warrant Holders' Association v. Deane if
Beal, supra.
3. Registration.
a. What may be Registered.
i. Generally.
See also Vol. XIV. 146, 2083.
Essentials of Trade Mark — Word in Common
Use — Word "Standard."] — The Canadian
Trade Mark and Design Act, 1879, provides
that the registration of a trade mark may be
refused " if the so-called trade mark does not
contain the essentials necessary to constitute
a trade mark, properly speaking " ; but it docs
not define the essentials of a trade mark : —
Held, that the word " Standard " being a
common Englisli word, used to convey the
notion that the goods to which it is applied are
of high class or superior quality, cannot be
properly registered as a trade mark. Standard
Ideal Co. v. Standard Sanitary Manufacturing
1607
TRADE AND TEADE MAEK.
1608
Co., 80 L. J. P.C. 87; [1911] A.C. 78;
103 L. T. 440; 27 E. P. C. 789 ; 27 T. L. R. 63
—P.C.
" Health "—Article of Food.]— The word
" Health " caunot be registered as a trade
mark as applicable to any article of food.
Thome v. Sandow, 106 L. T. 926; 29 R. P. C.
440; 28 T. L. R. 416— Neville, J.
Geographical Name — Name of Foreign
Capital in Foreign Language — Word become
Distinctive of Goods — Assignment of Owner
of Business in Certain Countries.] — Geo-
graphical names are not absolutely excluded,
like laudatory epithets, from registration as
trade marks under the Trade Marks Act, 1905.
The word " Bern a " had become distinctive
for the goods of a British company which
manufactured commercial motor vehicles. The
business had originated in Switzerland, but it
had been acquired by the company in 1908.
In 1912, however, the company sold their busi-
ness in foreign countries to a Swiss com-
pany, and in 1913 they sold their busi-
ness in the United Kingdom, with the benefit
of all trade names and trade marks, to another
company, retaining their business in the
British colonies and dependencies. " Berna "
is the Italian and Spanish form of " Berne " :
— Held, that " Berna " was not absolutely
prohibited from registration in connection with
motor cars, and ought to be admitted to regis-
tration as being, on the evidence, properly
distinctive of the company's goods. Held, also,
that the word would not be misleading or
deceptive as implying that the goods were
made in Switzerland ; and that it was no
objection to its registration that the company
had assigned to others their business in certain
parts of the world, such assignments being
recognised by section 22 of the Act. Berna
Cotyimercial Motors, Lim., In re, 84 L. J. Ch.
416; [1915] 1 Ch. 414; 112 L. T. 980;
32 R. P. C. 113; 59 S. J. 31&— Sargant, J.
" Classic " — Laudatory Epithet — Word
Adapted to Distinguish — Secondary Meaning
— Infringement and Passing off.] — The plain-
tiffs were the publishers of Christmas and
other greeting cards and stationery, and had
registered the word " classic " as a trade mark
for their goods. They brought an action
against the defendants for infringement of the
trade mark and passing off, and the defendants
moved to expunge the trade mark from the
register, and denied that their use of " classic "
was calculated to pass off their cards as the
plaintiffs' cards : — Held, that the word
" classic " was a laudatory epithet, and not a
word " having no direct reference to the
character and quality of the goods " so as to
be registrable under section 9, sub-section 4
of the Trade Marks Act, 1905; and further,
that it was incapable of being treated as
" adapted to distinguish " so as to be regis-
trable under section 9, sub-section 5 of the
Act, and that, even if it had been capable of
becoming distinctive, it had not in fact become
distinctive of the plaintiffs' goods by user.
The claim for infringement therefore failed,
and the word must be expunged from the
Register of Trade Marks. Held also, that
there was nothing in the get-up of the defen-
dants' boxes of cards apart from the use of
the word " classic " t-o support the plaintiffs'
claim for passing off, and that in view of the
finding that the word was not in fact distinc-
tive of the plaintiffs' goods the claim in respect
of passing off must also be dismissed. Sharpe,
Lim. V. Solomon, Lim.; Sharpe, Lim.'s Trade
Mark, In re, 84 L. J. Ch. 290; 112 L. T. 435;
32 R. P. C. 15; 31 T. L. R. 105— C.A.
Word Descriptive of Form and Character of
Goods — " Ribbon " — Dentifrice.] — The word
'■ Ribbon " held not to be a registrable trade
mark for a dentifrice, inasmuch as the word
as used by the applicants was descriptive of
the form and character of the dentifrice in
respect that it described the manner and form
in which the dentifrice came out of the tube
in which it was sold. Colgate d Co.'s Trade
Mark, In re, 30 R. P. C. 262; 29 T. L. R. 326
— Parker, J.
ii. Fancy Words — Words Not in Common Use.
See also Vol. XIV. 153, 2087.
Invented Word — " Parlograph " — Whether
Indicative of Origin or Merely Denoting Parti-
cular Article.] — A German company applied
for registration as a trade mark of the word
" Parlograph " in respect of sound-recording
and reproducing machines and parts and
accessories thereof included in class 8. A
pamphlet issued by the London agents of the
German company was in evidence in which a
sound-recording machine was described under
the name " Parlograph." The Registrar of
Trade Marks refused the application. On
appeal to the Court, — Held, overruling the
Registrar, that the word " Parlograph " was
an invented word within the meaning of sec-
tion 9, sub-section 3 of the Trade Marks Act,
1905, and, further, that it did not merely
denote a particular article, but referred to the
make or quality of the goods produced by the
applicant company, and was a proper trade
mark within the definition of a trade mark in
section 3 of the Trade Marks Act, 1905.
Gramophone Co.'s Application, In re (79 L. J.
Ch. 658; [1910] 2 Ch. 423), distinguished.
Carl Lindstroem Aktiengesellschaft's Applica-
tion, In re, 83 L. J. Ch. 847 ; [1914] 2 Ch. 103;
111 L. T. 246; 31 R. P. C. 261; 58 S. J. 580;
30 T. L. R. 512— Sargant, J.
Invented Word — Prior Use of Word.] — An
" invented word " need not be absolutely new
in order to be registrable as a trade mark
under the Trade Marks Act, 1905, s. 9.
Societe le Ferment's Application, In re,
81 L. J. Ch. 724; 107 L. T. 515; 29 R. P. C.
497 ; 28 T. L. R. 490— C.A.
The word " Lactobacilline " had been used
by the applicants to describe their preparation
of a lactic ferment for some years before they
applied to register it as a trade mark. The
Court, having come to the conclusion on the
evidence that " Lactobacilline " was an in-
vented word, allowed the applicants to register
it notwithstanding their prior user of it.
Linotype Co.'s Trade Mark, In re (69 L. J.
Ch. 625; [1900] 2 Ch. 238), followed. lb.
1609
TRADE AND TRADE MARK.
1610
iii. Distinctive Device, Word, Mark, dc.
See also Vol XIV. 158, 2087.
Surname — " DistlnctiYC mark " — " Adapted
to distinguish."] — The applicants applied to
register the word " Boardman's " as a trade
mark in respect of manufactured tobacco. A
predecessor in trade of the applicants had from
1888 supplied a smoking mixture to a Mr.
Boardman in Manchester, and from that time
tobacco and cigarettes supplied by the appli-
cants and their predecessors had been known
as " Boardman's " in a limited area : — Held,
that the evidence was insufficient to shew
that the use of the word " Boardman's " had
rendered it " distinctive " of the tobacco of
the applicants so as to justify the Court in
holding that it was " adapted to distinguish "
their goods within section 9, sub-section 5 of
the Trade Marks Act, 1905, and was therefore
registrable as a " distinctive mark." Lea's
Trade Mark, In re, 82 L. J. Ch. 241; [1913]
1 Ch. 446; 108 L. T. 355; 30 E. P. C. 216;
57 S. J. 373; 29 T. L. R. 334— C. A.
Per Farwell, L.J. : The name of a company,
individual, or firm or a geographical name is
not prima facie, and without more, distinctive.
Per Hamilton, L.J. : The surname of a pro-
prietor is adapted to distinguish his goods from
those of persons who do not use or bear that
name, but only to confuse them with the goods
of other persons who bear that name. 7b.
Queer e, whether if the Court decided that the
mark was registrable and made an order to
proceed with registration the Registrar and
law officers could further contest the claim to
register, if after advertisement no notic« of
opposition was given bv anv other person. lb.
Decision of Jovce, J. (81 L. J. Ch. 489;
[1912] 2 Ch. 32)," affirmed. lb.
On an application to register as a trade
mark the word " Benz " written in a fanciful
manner and encircled by a device partaking
of the nature of a wreath,— Held, that the
mark was not registrable under section 9,
sub-section 1 of the Trade Marks Act, 1905,
as " the name of a company, individual, or
firm represented in a special or particular
manner," or in the absence of an order of the
Board of Trade or the Court as a distinctive
mark under section 9, sub-section 5. Benz d
Co.'s Application, In re, 108 L. T. 589;
30 R. P. C. 177 ; 57 S. J. 301 ; 29 T. L. R. 295
-C.A.
"Adapted to distinguish."] — The appli-
cants applied under sectitm 9, sub-section 5
of the Trade Marks Act, 1905, to register the
word " Pope " as a trade mark in respect of
incandescent electric lamps. Since the incep-
tion of the business in this country in 1904,
care had been taken to identify the word
"Pope" with the electric globes or lamps
manufactured and sold by the predecessors in
business of the applicants, and afterwards by
the applicants. Pope was the name of one of
the directors of the applicants, who had been
one of the founders of the original business.
It was established that in the trade a lamp
bearing the word " Pope " had come to mean
a lamp manufactured by the applicants. There
was no evidence to shew that among the public
the name had obtained such a secondary mean-
ing : — Held, first, that the name in its nature
was not " adapted to distinguish " the goods
of the applicants from those of other persons ;
and secondly, even supposing the word were
adapted to distinguish, and that the evidence
established that it had by user become dis-
tinctive, the Court in its discretion ought not
to grant such an application as this, having
regard to the intention of the Legislature with
reference to the use of surnames as trade
marks, as expressed in sub-sections 1 and 4
of section 9 of the Trade Marks Act, 1905.
Crosfield i6 Sons' Applicatio7i, In re (79 L. J.
Ch. 211; [1910] 1 Ch. 130), applied. Pope's
Electric Lamp Co.'s .Application, In re,
80 L. J. Ch. 682; [1911] 2 Ch. 382; 105 L. T.
580; 28 R. P. C. 629; 27 T. L. R. 567—
Warrington, J.
Application to Register Surname — Order
of Board of Trade Directing Registrar to
Proceed — Effect of Order — Power of Court to
Entertain Subsequent Application to Remove.]
— An order made under section 9, paragraph 5
of the Trade Marks Act, 1905, directing the
Registrar of Trade Marks to proceed with the
registration as a trade mark of a " name,
signature, or word or words, other than
those falling within any of the preceding
paragraphs, does not preclude the Court from
entertaining, after the mark has been regis-
tered, an application under section 35 for its
removal on any ground which would have been
open to the applicant apart from that order.
Teofani d Co.'s Trade Mark, In re, 82 L. J.
Ch. 490; [1913] 2 Ch. 545; 109 L. T. 114;
30 R. P C. 446 ; 57 S. J. 686 ; 29 T. L. R. 591,
674— C.A.
Decision of Warrington, J., on this point
(82 L. J. Ch. 145; [1913] 1 Ch. 191) reversed.
76.
"Word."] — A surname is a "word"
within the meaning of section 9, para-
graph 5 of the Trade Marks Act, 1905,
and, subject to the conditions there set out, it
is registrable as a trade mark if proved to be
capable of distinguishing the goods of the
person seeking to register it from those of
other persons. The decision on this point of
Warrington, J., in Pope's Electric Lamp Co.'s
Application, In re (80 L. J. Ch. 682; [1911]
2 Ch. 382), and of Jovce, J., in Lea, Lim.,
In re (81 L. J. Ch. 489; [1912] 2 Ch. 32),
reversed. lb.
A surname ought only to be registered as a
trade mark in exceptional cases, of which the
word " Teofani " is an example. 76.
Where the Board of Trade has determined
that a particular name is not outside the cate-
gory of registrable trade marks, and has
directed the Registrar to proceed with the
application for its registration and determine
whether the name is a distinctive mark, the
Court is precluded from afterwards saying
that the name is outside the category of
registrable trade marks. Trade Mark
No. 312065, 7»i re, 29 T. L. R. 117—
Warrington, J.
Cadbury Bros., Lim., applied for an order
of the Board of Trade to register the name of
" Cadbury " under section 9, sub-section 5
1611
TRADE AXD TEADE MAEK.
1612
of the Trade Marks Act, 1905, as a trade
mark in respect of certain confectionerj' goods
in class 4'2. In 1886 the firm had registered
the name " Cadbury " as an old mark under
section 64, sub-section 3 of the Patents,
Designs, and Trade Marks Act, 1883, in
respect of chocolate and cocoa. There was
considerable evidence that the word " Cad-
bury" had become distinctive of the goods of
the applicants : — Held, that the Registrar
ought to proceed to registration. Cadbury's
Applicatiou, In re (No. 1). 84 L. J. Ch. 242;
[1915] 1 Ch. 331 ; 112 L. T. 235 ; 32 E. P. C.
9; 59 S. J. 161— Neville, J.
Condition of Disclaimer of Right to Exclu-
sive Use of Part of Mark.] — Section 15 of the
Trade ^larks Act. 1905. represents a new
departure in regard to the imposition, as a
condition of the registration of a trade mark,
of a disclaimer by the applicant of anj' part
of the mark to the exclusive use of which he
is not entitled. The section throws the onus
of justifying a disclaimer on those who seek
to have it inserted; and disclaimers, unneces-
sary from a legal point of view, should not
be placed on the register, since they induce
a disregard by the public of common law
rights which may have been acquired to the
use of the part disclaimed. Baker d- Co/s
Trade Mark, In re (77 L. J. Ch. 473: [1908]
2 Ch. 86), followed. Cadbury's Application,
In re (No. 2), 84 L. J. Ch. 827; [1915]
2 Ch. 307; 32 R. P. C. 456; 59 S. J. 598;
31 T. L. R. 523— Sargant, J.
Name of Company in Ordinary Handwriting
— Representation in a " special or particular
manner."] — The name of a company written
in ordinary handwriting is not registrable as
a trade mark, as it is not " represented in
a special or particular manner " wdthin the
meaning of section 9, sub-section 1 of the
Trade Marks Act, 1905. Registrar of Trade
Marks v. Du Cros, Lim. (83 L. J. Ch. 1;
[1913] A.C. 624), applied. British Milk
Products Co.'s Applicatio7i, In re, 84 L. J.
Ch. 819; [1915] 2 Ch. 202; 32 R. P. C. 453
— Sargant, J.
"Distinctive" Mark — Duty of Registrar —
Initial Letters — Discretion.] — The proper time
for considering whether a mark is registrable
as a trade mark, or whether, having regard
to the interests of the public, it ought to be
accepted or rejected, is when the application
for registration first comes before the Registrar
under section 12 of the Trade Marks Act,
1905. The Registrar then has a discretion,
to be exercised in a judicial spirit, as to
w'hether the mark is " distinctive " within the
meaning of section 9, sub-section 5 of the Act.
Registrar of Trade Marks v. Du Cros, 83 L. J.
Ch. 1; [1913] A.C. 624; 109 L. T. 687;
30 R. P. C. 660; 57 S. J. 728; 29 T. L. E.
772— H.L. (E.)
A mark consisting simply of the initials
of the applicant, whether in block type or in
script, should not generally be registered, not
being suf35ciently " distinctive." In order to
determine whether a mark is " distinctive " it
must be considered quite apart from the effects
of registration. lb.
Judgment of the Court of Appeal (81 L. J.
Ch. 20J ; [1912] 1 Ch. 644) reversed in part
and affirmed in part. lb.
User — "Mark used or proposed to be
used."] — Where applicants for registration of
a trade mark were under a contractual
obligation not until the year 1926 to sell their
goods to any one in the United Kingdom save
to the respondents who, under their own trade
mark, traded in the United Kingdom in the
goods supplied to them in Switzerland by the
applicants, — Held, that in the circumstances
the mark proposed to be registered was not
" a mark used or proposed to be used upon
or in connexion with goods ..." within the
meaning of section 3 of the Trade Marks Act,
1905, and that the application must be refused.
Neuchatel Asphalte Co.'s Application, In re,
82 L. J. Ch. 414 ; [1913] 2 Ch. 291 ; 108 L. T.
966 ; 30 R. P. C. 349 ; 57 S. J. 631 ; 29 T. L. R.
505 — Sargant, .J.
Bait <£• Co.'s Trade Marks. In re (67 L. J.
Ch. 576; [1898] 2 Ch. 432; in H.L., sub
nom. Bait <(■ Co. v. Dunnett, 68 L. J. Ch.
557; [1899] A.C. 428), followed. lb.
The words " used or proposed to be used
in section 3 of the Trade Marks Act, 1905,
mean " used or proposed to be used in the
United Kingdom." lb.
"Classic" — Laudatory Epithet — Word
Adapted to Distinguish — Secondary Mean-
ing — Infringement and Passing off.] — The
plaintiffs were the publishers of Christmas and
other greeting cards and stationery, and had
registered the word " classic " as a trade mark
for their goods. They bi-ought an action
against the defendants for infringement of the
trade mark and passing off, and the defen-
dants moved to expunge the trade mark from
the register, and denied that their use of
" classic " Avas calculated to pass off their
cards as the plaintiffs' cards : — Held, that the
W'ord "classic" was a laudatory epithet, and
not a word " having no direct reference to
the character and quality of the goods " so as
to be registrable under section 9, sub-section 4
of the Trade Marks Act, 1905; and further,
that it was incapable of being treated as
" adapted to distinguish " so as to be regis-
trable under section 9, sub-section 5 of the
Act, and that, even if it had been capable of
becoming distinctive, it had not in fact become
distinctive of the plaintiffs' goods by user.
The claim for infringement therefore failed,
and the word nuist be expunged from the
Register of Trade Marks. Held also, that
there was nothing in the get-un of the defen-
dants' boxes of cards apart from the use of
the word " classic " to support the plaintiffs'
claim for passing off, and that in view of the
finding that the word was not in fact distinc-
tive of the plaintiffs' goods the claim in respect
of passing off nmst also be dismissed. Sharpe,
Lim. V. Solomon. Lim.: Sharpe. Lim.'s Trade
Mark, In re. 84 L. J. Ch. 290: 112 L. T. 435;
32 R. P. C. 15; 31 T. L. R. 105— C. A.
Three Lines of Colour — Indefinite Length-
Conditions Imposed upon User.] — A firm of
1613
TEADE AXD TRADE MARK.
1614
fire-hose manufacturers applied to the Regis-
trar of Trade Marks for the registration in
respect of canvas woven fire hose of a trade
mark consisting of three lines of colour — two
blue lines with a red line between them of
about one-half inch in width. It was pro-
posed that this mark should be woven into
the hose and extend throughout its whole
length. The Registrar refused to proceed
with the registration on the grounds, first,
that a coloured line woven into hose could
not be a registrable trade mark; and secondly,
that the mark was not distinctive. The
applicants appealed to tiie Court : — Held, that
the mark as shewn upon the application form
— namely, three lines of colour — would not be
adapted to distinguish the goods of the appli-
cants from those of other persons. The
applicants further proposed that the mark
should be registered with tlie condition " that
no protection shall be given by this registra-
tion to the mark except when used throughout
the whole length of tlie fabric and substantially
of the width shewn on the application form " :
— Held, that, having regard to sections 12
and 39 of the Tiade Marks Act, 1905, it was
competent for the Registrar to accept and
for the Court to direct him to accept an appli-
cation subject to a condition which modified
the exclusive right given to the proprietor of
a trade mark bj- section 39, and, the appli-
cants submitting to have the condition imposed
upon them if the application was ultimately
accepted, the Registrar was directed to pro-
ceed with the application. Reddaicay (f- Co.'n
Application, In re, 83 L. J. Ch. 705; [1914]
1 Ch. 856 ; 31 R. P. C. 147 ; 58 S. J. 415—
Warrington, J.
Device of a Cat for Gin — Common to the
Trade — Similarity of Marks — Not " calculated
to deceive " — Evidence — Statutory Declara-
tions.] — The applicants, spirit merchants,
applied to register as a trade mark for gin
a label bearing the device of a cat in boots
sitting on a snowy ground, with the words
" Cordial Old Tom Gin — Snowdrop Trade
Mark." The application was opposed by
another firm of spirit merchants, who had a
registered trade mark for gin consisting of the
device of a cat on a barrel, with the words
" Old Tom " on the barrel, and underneath
the words "Cordial Old Tom" -.—Held, that
the device of a cat was common to the trade,
and that no exclusive right to it could be
maintained ; that the applicants' particular
device of a cat was not " calculated to
deceive"; and that their mark ought there-
fore to be registered. Decision of Neville, J.
(31 R. P. C. 481), reversed. Comments
on evidence by statutory declaration without
cross-examination. Bagots Hutton <f Co.'s
Trade Mark. In re. 84 L. J. Ch. 918;
118 L. T. 67 ; 32 R. P. C. 333 ; 31 T. L. R.
373— C.A.
iv. Similarity — Calculated to Deceive.
See also Vol. XIV. 165, 2093.
Spanish Brand Name for Cigars Made in
Holland "calculated to deceive."' — .\ brand
name does not necessarily by itself indicate tlu'
country of origin of the goods which it denotes.
Each case must be judged by its own special
circumstances. Van der Leeuw's Trade Mark,
In re, 81 L. J. Ch. 100; [1912] 1 Ch. 40;
105 L. T. 626; 28 R. P. C. 708; q/j S. J. 53;
28 T. L. R. 35— Parker. J.
Where there was nothing else in the label,
no.- anything in the get-up of the goods, which
would suggest that the goods came from a
Spanish-speaking country. — Held, that a
Spanish brand name for cigars made in
Holland was not calculated to deceive within
the meaning of section 11 of the Trade Marks
Act, 1905. McGlennon's Application, In re
(25 R. P. C. 797), distinguished. 76.
Similarity with Trade Mark already Regis-
tered.]— When an application to register a
trade mark is opposed on the ground that it
might lead to confusion with a trade mark
alread}- registered, the question is not whether
there is a similarity between the two marks
when placed side by side, but whether, when
a person sees one mark apart from the other,
he might take it for that other. Sandow\$
.ipplication. In re, 31 R. P. C. 196;
30 T. L. R. 394— Sargant, J.
" Swankie " — Objection to Registration —
Alleged Confusion writh Word " Swan."]— On
an objection to the registration of the word
' swankie " as a trade mark for a detergent
in class 47, the objectors being owners of trade
marks in classes 47 and 48, consisting of the
device of a swan in combination with the
word " swan " : — Held, that the objection was
not maintainable, as there was no serious
danger of any confusion between the two
words. Crook's Trade Mark, In re, 110 L. T.
474 ; 31 R. P. C. 79 ; 58 S. J. 250 ; 30 T. L. R.
245 — Joyce, J.
" Schicht " — " Sunlight."] — The applicants,
Austrian soap manufacturers, applied to
register the German word " Schicht " as a
trade mark. The owners of certain trade
marks, which consisted of the word " Sun-
light," used in connection with soap, opposed
the application : — Held, that the application
must be refused as the word " Schicht,"
stamped on soap, would be calculated to
deceive persons into taking soap so labelled
as and for Sunlight soap. Schicht's Trade
Mark. In re. 29 R. P. C. 483; 28 T. L. R.
.375— Warrington, J.
Spanish Brand Name on Cigars — Cigars
Made in Holland — " Calculated to deceive."]
— It cannot be laid down that the mere fact
that a Spanish brand name is used on cigars,
which are not made in a Spanish-speaking
country, is " calculated to deceive '" within
the meaning of section 11 of tiic Trade Marks
Act, 1905. Van Der Leeuw's Trade Mark,
In re, 105 L. T. 626 ; 28 R. P. C. 708 ; 56 S. J.
53; 28 T. L. R. 35— Parker, J.
b. Practice.
i. Generally.
See r7/w Vol. XIV. 177, 2095.
Statutory Declarations Filed Pursuant to
the Trade-Marks Act — Affidavit.] — Statutory
1615
TRADE AND TEADE MAEK.
1616
declarations filed for use before the Registrar
may in certain circumstances be used on a
motion in the Chancery Division made under
rule 39 of the Trade Mark Rules, 1906, in
lieu of the usual affidavit evidence for the pur-
pose of saving expense. Cadbury, In re
(No. 1), 31 R. P. C. 500: 59 S. J. 58—
Neville, J.
Appeal to Court — Service on Parties not
Before the Comptroller.] — On an appeal to the
Court from a refusal by the Comptroller to
proceed with the registration of a trade mark
the appellants may serve notice of the appeal
on parties who were not before the Comp-
troller, but whom they know to be likely
opponents, and, if such opponents appear, the
Court m.ay determine the appeal on reasons
put forward by them, even although those
reasons were not put before the Comptroller
and he gave his decision on different grounds.
Neuchatel Asphalte Co.'s Application, 82 L. J.
Ch. 414; [1913] 2 Ch. 291: 108 L. T. 966;
30 R. P. C. 349; 57 S. J. 611; 29 T. L. R
505 — Sargant, J.
ii. Rectification of Register.
See also Vol. XIV. 181, 2096.
Registration for Corsets — Subsequent Regis-
tration for Bandeaux — Removal of Subsequent
Registration.] — The applicants registered the
word " Zarna " in class 13 for metal used in
corsets. The respondents subsequently, with-
out any knowledge of the applicants' trade
mark, registered the same word in class 30 for
bandeaux without the knowledge of the appli-
cants. The applicants moved to have the
respondent's trade mark expunged : — Held,
that the Court was not bound by the classifica-
tion adopted in the registry, that the respon-
dent's goods were of the same description as
those of the applicants, both being articles of
clothing, that the respondent's trade mark was
calculated to deceive, and that it must be
removed from the register. Shreeve's Trade
Mark, In re, 31 R. P. C. 24; 30 T. L. R. 164
—Eve, J.
Goodwill — Business Suspended — Lease and
Trade Effects Sold— Trade Mark Abandoned.]
— In 1.^93 E. P.. who liad commenced to manu-
facture preserves at premises at S. Road,
Beniiondijey, adopted for his trade name the
invented style of Sidney Ord & Co. He
registered in 1894, under the Trade Marks Act,
1888, a trade murk in which his trade name
was a prominent feature, the essential parti-
cular of the mark being the written signature
and the exclusive use of added matter except
as consisting in the name being disclaimed.
In 1908 J. M. was, under section 116 of the
Lunacy Act, 1890, appointed, and continued
under divers orders, receiver of the estate of
E. P. The business, including the goodwill,
was offered for sale in 1909, but was not then
sold. E. P.'s family having objected to the
sale of the goodwill, the business was closed,
the plant, trade effects, and lease being sold
in April, 1910. A circular was sent out stating
that the business was being discontinued and
the account books were l)urnt. The defendants
sold marmalade which they stated was pre-
pared by the manager of the late firm of
Sidney Ord & Co. and under labels in which
that name was very prominent. The action
to restrain passing off by the defendants and
their motion to rectify the register of trade
marks by removing E. P.'s trade mark coming
on for hearing together, — Held, assuming the
plaintiff's right in the label and trade mark
were subsisting, the defendants would have
infringed the plaintiff's rights; that the
plaintiff having ceased manufacturing marma-
lade for three years, no right of property
existed in him which enabled him to restrain
the defendants from passing off marmalade
under labels or marks containing his assumed
trade name. The right to use the trade mark
came to an end when the plaintiff's business
was discontinued, and it was not competent
even if desired to keep the goodwill alive. The
trade mark as a derelict trade mark not
attached to the goods of the trader who regis-
tered it, and without any goodwill to support
it, was a danger to the trading community
which any trader who desired to adopt the
name was as "an aggrieved person" under sec-
tions 22 and 35 of the Trade Marks Act, 1905.
entitled to have removed from the register.
Pink V. Sharwood (No. 2), 109 L. T. 594;
30 R. P. C. 725— Eve, J.
" Wincarnis " — " Carvino."] — The plain-
tiffs were the manufacturers of a medicated
wine made from extract of meat and malt
wine, which they sold under the name of
" Wincarnis," which name was the plaintiffs'
registered trade mark. Subsequently, the
defendants, who were the manufacturers of
another medicated wine made from wine and
extract of meat, registered as their trade mark
the name " Carvino." On an application by
the plaintiffs to have the name " Carvino "
removed from the register, — Held, refusing
the motion, that the word " Carvino " alone,
and without reference to get-up, was not
calculated to deceive. Coleman v. Smith,
28 R. P. C. 645; 55 S. J. 649; 27 T. L. R.
533— Swinfen Eady, J. Varied, 81 L. J. Ch.
16; [1911] 2 Ch. 572; 28 T. L. R. 65— C.A.
Bona Fide User.]— Section 37 of the Trade
Marks Act, 1905, only requires the bona fide
user of the trade mark — namely, the registered
mark — in connection with the goods for which
it is registered ; it does not in terms require
the mark to be " used as a trade mark," and
if the registered mark is bona fide impressed
upon the goods there is a bona fide user of the
mark in connection with goods within the
meaning of the section although the house
mark or other matter is added. Andrew v.
Kuehnrich, 30 R. P. C. 93; 29 T. L. R. 181—
Swinfen Eady, J. Reversed on the evidence,
30 R. P. C. (177 ; 29 T. L. R. 771— C.A.
The Court, notwithstanding the absence of
the respondent, whom the appellant had been
unable to serve with notice of the application,
made an order under section 37 of the Trade
Marks Act, 1905, removing a trade mark from
the register on the ground that there had been
no bona fide user thereof during the five
years immediately preceding the application.
1617
TRADE AND TEADE MAEK.
1618
Smollens Trade Mark, hi re, 29 E. P. C. 158;
56 S. J. 240; 28 T. L. R. 196— Eve, J.
Terminations Alike — " Calculated to de-
ceive " — Similarity in Sound of Words.] — The
owners of trade marks " Zoegen " and
" Ceregen," registered in 1908 and 1909 for
medicinal foods for human use, moved to
remove from the register the trade mark
" Herogen," registered in April, 1912, in
respect of a food in class 42, on the ground
of similarity in sound of the respective words,
the likeness of their terminations, and the
liability to goods covered by the trade mark
" Herogen " being passed off as their goods :
— Held, that, the real question being as to
whether the names were so alike phonetically
as to be calculated to deceive, not whether a
dishonest trader would so use the word as to
bring about deception, the articles would be
purchased in reliance upon the letters which
preceded the common termination, and, these
being sufficiently distinctive and the appel-
lant's and respondents' goods appealing to
different classes of customers, the application
to expunge failed. Britiah Drug Houses'
Trade Mark, In re, 107 L. T. 756; 30 R. P. C.
73— Eve. J.
Infringement — Passing off.]— In 1850 the
plaintiffs' predecessor began to sell a pre-
paration which he called " Gripe Water," and
in 1876 he registered a trade mark which con-
tained those two words. The plaintiffs brought
an action against the defendants, first, for
infringement of the trade mark " Gripe
"Water"; and secondly, to restrain the sale
of any goods except the plaintiffs' under that
name, and the defendants moved to have the
trade mark expunged from the register : —
Held, that on the evidence the plaintiffs had
failed to prove that the words " Gripe Water "
now meant the plaintiffs' goods, and therefore
they were not entitled to succeed in their
claim for passing off', but that the defendants
were not entitled to have the trade mark
expunged from the register as at the time of
registration it was in fact distinctive, and that
the plaintiffs were entitled to an injunction
to restrain infringement of the trade mark.
Woodivard, Lim. v. Boulton Macro, Lim.;
Woodward. Lim., In re, 85 L. J. Ch. 27;
112 L. T. 1112; 32 R. P. C. 173; 31 T. L. R.
269— Eve, .7.
Old Marks — Royal Device — Prince of Wales'
Feathers — "Calculated to deceive" — "Person
aggrieved."] — The i-cspondcnts were the pro-
prietors of three old marks in respect of
tobacco, two of which were registered in 1876
and the third in 1891, which bore (inter alia)
the device of the Prince of Wales' l^'eathers
and the words " Prince of Wales' Smoking
Mixture." At the date of registration of one
of the marks its then owner did supply tobacco
to Marlborough House, but since the accession
of the present King no warrants had been
granted by the Prince of Wales. All warrants
granted by any prince determine on his death
or accession. The Royal Warrant Holders'
Association, a corporate l)ody of persons hold-
ing Royal warrants, under authority to take
proceedings, moved to expunge these marks
from the register as being " calculated to
deceive " by leading to the belief that the
respondents held warrants from the Prince and
supplied the smoking mixture to him : — Held.
by Eve, J., that the applicants were not
" persons aggrieved " within section 35 of the
Trade Marks Act, 1905, and that the marks
were not " calculated to deceive " within sec-
tion 11 of the Act, and that if they were they
were lawful marks when registered, and had
been used continuously and honestly ever since
registration and ought not to be removed
from the register. Held, on appeal, without
deciding whether or not the applicants were
" persons aggrieved " within section 35 of the
Act, that the marks were not " calculated to
deceive " within section 11 of the Act.
Imperial Tobacco Co.'s Trade Marks, In re,
84 L. J. Ch. 643; [19151 2 Ch. 27; 112 L. T.
632 ; 32 R. P. C. 361 ; 59"S. J. 456 ; 31 T. L. R.
408— C. A.
Section 68 of the Act, which prohibits the
use of devices calculated to lead to the belief
that the person using them supplies goods to
a member of the Royal Family, by expressly
excepting trade marks then on the register
containing such devices suggests that such
marks may be good. lb.
Decision of Eve, J. (31 T. L. R. 92),
affirmed. lb.
iii. Opposition to Registration.
See also Vol. XIV. 190, 2100.
Per Vaughan Williams, L.J. : Section 11
of the Trade Marks Act, 1905, is a general
section, and enables any person who in fact
has a trade mark in use, though not a
registered one, to oppose registration of a
trade mark which has a resemblance to his
trade mark so great as to be calculated to
deceive. Andrew v. Kuehnrich, 30 R. P. C.
677; 29 T. L. R. 771— C.A.
C. MERCHANDISE MARKS.
See also Vol. XIV. 202, 2102.
False Trade Description — Filling with
Bass's Beer Bottles Embossed vrith Name of
Another Brevi?ery — Selling Beer as Bass's
Beer.] — The appellant, who was a wine mer-
chant, bottled Bass's beer into bottles
embossed with the name of the F. Brewery
Co., and sold the beer as Bass's beer, after
affixing the ordinary Bass's labels to the
bottles : — Held, tliat the appellant had under
section 5, sub-section 1 (c) of the Merchandise
Marks Act, 1887, applied a trade description
which was a false trade description to the
beer in the bottle, and had therefore com-
mitted an offence under the Merchandise
Marks Act, 1887. Stone v. Burn, 80 L. J.
K.B. 560; [19111 1 K.B. 927; 103 L. T. 540;
74 J. P. 456 ; 27 T. L. R. 6— D.
" British Tarragona Wine."] — The re-
spondents sold a.s " I'ine British Tarragona
Wine " a mixture of 85 per cent, of wine
made in England and 15 per cent, of Mistella,
a form of Tarragona wine made and used
solely for the purpose of blending and not
suitable for consumption by itself : — Held, a
1619
TRADE AND TEADE MAEK.
1620
false trade description witliin section 3, sub-
section 1 of the Merchandise Marks Act, 1887.
Holmes v. Pipers. Lim., 83 L. J. K.B. 285;
[1914] 1 K.B. 57: 109 L. T. 930; 78 J. P. 37;
12 L. G. R. 25; 23 Cox C.C. 689; 30 T. L. E.
28-D.
False Trade Description — False Name.l —
In the prosecution of a trader charged with
selling goods under a false trade description —
namely, selling beer in bottles embossed with
the name of another trader, — Held, that the
use of a false name is not a species of the
offence of using a false trade description, but
is a separate offence ; and that the complaint
should have charged the accused witli selling
goods under a false name. Held also (Lord
Skerrington dissentiente), that sub-sections (h)
and (cj of section 3, sub-section 3 of the
Merchandise Marks Act, 1887, are to be read
disjunctively, the word " and " between them
being equivalent to "or"; and, accordingly,
that it is an offence to use a name which
contravenes sub-section (h). although it does
not also contravene sub-section ic). Lipton v.
Reg. (32 L. R. Ir. 115) followed. M-Callum
V. Doughty. [1915] S. C. (J.) 69— Ct. of Just.
"Norwegian Skipper Sardines" — "Trade
description . . . lawfully and generally applied
to goods."] — Section 18 of the Merchandise
Marks Act, 1887, provides that " Where, at
the passing of this Act, a trade description
is lawfully and generallj' applied to goods of
a particular class, or manufacture by a parti-
cular method, to indicate the particular class
or method of manufacture of such goods, the
provisions of this Act with respect to false
trade descriptions shall not apply to such
trade description when so applied : . . ." : —
Held, that, in order that a trade description
may be generally applied to goods of a parti-
cular class or method of manufacture, it is
not sufficient that the description should be
applied to the goods by those who sell them ;
it is necessary that the description should be
applied to the goods both by the sellers of
the goods and the members of the public who
purchase them, and that the members of the
public should be aware of the meaning attach-
ing to such trade description; and, further,
that, in order that a trade description may
be lawfully applied to goods, such user must
be lawful in the widest sense of that word,
and not merely that the user does not amount
to an infringement of the criminal law. Lemy
V. Watson, M L. J. K.B. 1999; [1915] 3 K.B.
731; 13 L. Cr. R. 1323; 32 R. P. C. 508;
31 T. L. E. 612— D.
The respondents sold Norwegian sprats or
brisling in oil, packed in tins, under the
name of " Norwegian Skipper Sardines," or
" Skipper Sardines." The word " sardine "
was introduced into this country from France
to denote an inmiature pilcliard processed in
one of a variety of ways, usually in oil in
tins. The sprat or brisling is a different fish
from the pilchard, but such fish had been pre-
pared in Norway and sold in England under
the name of " Norwegian Sardines," and
under no other name, some years previous to
the passing of the Merchandise Marks Act,
1887. Those in the trade who dealt in them
knew that the fish sold as Norwegian sardines
were different from the French sardines, but
the members of the public, who purchased
the Norwegian sardines were not aware of
that fact : — Held, that the respondents had
applied a false trade description to the goods
within the meaning of section 2 of the Mer-
chandise Marks Act, 1887, and that they were
not protected by section 18 of that Act,
because they had not shewn that the term
" Norwegian Skipper Sardines " was gener-
ally and lawfully applied in 1887 to Norwegian
sprats or brisling packed in oil in tins. lb.
D. DESIGNS.
See also Vol. XIV. 204, 2109.
Subject-matter — Validity — Drawing Shew-
ing Principle of Construction.] — In an action
for infringement brought by the proprietor of
a design, registered under section 49 of the
Patents and Designs Act, 1907, and consisting
of a drawing of a cross-section of a vehicle
wheel on the longitudinal central plane, shew-
ing the hub and rim of the wheel of a motor
car and the cross-sectional arrangement of
three sets of spokes, the novelty claimed being
in the disposition of a tyre rim in relation to
the hub and in the cross-sectional arrangement
of three sets of spokes, the infringement alleged
was the application of the design, or of a
fraudulent or obvious imitation thereof, to a
motor-car wheel made and sold by the defen-
dants. The Judge found the following facts :
First, that the design was a conventional
drawing, such as would be used by an engineer
to indicate how the wheel was to be constructed
qua the disposition of rim in relation to hub
and qua the arrangement of the spokes, and
did not purport to shew what would in fact
be seen if the wheel were cut on the longi-
tudinal central plane ; secondly, that it would
be easy for a competent mechanician to con-
struct from the drawing a number of wheels
whose configuration would have little in
common, except the disposition of the rim in
relation to the hub and the cross-sectional
arrangement of the spokes; thirdly, that from
every wheel so constructed a draughtsman
with a competent knowledge of the conception
of mechanical drawings, if asked to draw a
cross-section on the longitudinal central plane
shewing this disposition of rim in relation to
hub and the cross-sectional arrangement of
the spokes, would inevitably arrive at the
plaintiff's drawing ; and that in that sense it
might be said that the design was visible to
the eye after its application to vehicle wheels,
though the eye would have to be an ej'e
trained in mechanical matters; fourthly, that
the drawing made on these lines from the
defendants' alleged infringing wheel, if
judged from appearance alone and without a
view to the method of construction involved,
shewed such substantial differences from the
plaintiff's drawn design as to preclude it being
an imitation of the plaintiff's design : — Held,
upon these findings of fact, following Moody
V. Tree (9 E. P. C. 333) and Bayer's Design,
III re (24 E. P. C. 65; 25 R. P. C. 56), either
that the registration was bad as an attempt
to protect a mode of construction ; or, in
1G21
TRADE AND TEADE MAEK— TRADE UNION.
1622
the alternative, that there had been no
infringement. PugJi v. Riley Cycle Co.,
81 L. J. Ch. 476: [1912] 1 Ch. 613; 106 L. T.
592; 29 R. P. C. 196; 28 T. L. R. 249—
Parker, J.
Although a conception or suggestion as
to a mode or principle of construction is not
registrable, yet, as the mode or principle of
construction of an article maj* affect its shape
or configuration, the conception of such a
mode or principle of construction may well
lead to a conception as to the shape or con-
figuration of the completed article, and a
conception so arrived at may, if sufficiently
definite, be registered under the Act. 7b.
Quaere, whether the drawing is registrable
where the conception thus arrived at is not
a definite conception as to shape or configura-
tion, but a conception only as to some general
characteristic of shape or configuration neces-
sitated by the mode or principle of construc-
tion, the definite shape or conficruration being,
consistently with such mode or principle,
capable of variation within wide limits. Ih.
Alleged Infringement — Novelty and Origin-
ality.]— It is the duty of a Court of Justice to
decide cases according to the truth and fact,
and it is not bound to accept any fact as true
merely because it is admitted between the
parties to the action. Therefore where, in
an action to restrain the infringement of a
registered design, the defendant has admitted
the novelty and originality of the plaintiff's
design the Court is not precluded from enquir-
ing whether the design is in fact novel and
original, and. if it is of opinion that it is not
so, giving judgment for the defendant on that
ground. Gramophone Co. v. Magazine Holder
Co., 104 L. T. 2.59 ; 28 E. P. C. 221— H.L. (E.)
Per Earl of Halsbury : The principles by
which the Court is guided in dealing with
patent cases are not applicable to the cases of
registered designs, and a design must be an
exact reproduction of the registered design to
come within the Act ; a merely colourable
alteration is sufficient to take it out of the
Act. Ih.
Agreement to Advance Money to Meet Ex-
penses Necessary to Prevent Infringement —
Infringement Stopped — No Money Advanced —
Failure of Consideration — Agreement Yoid.l
— The plaintiff, while in the employ of the
defendant cornpanj', registered a design for a
patent wreath band, which design was subse-
quently infringed by another company. The
plaintiff then entered into an agreement with
his employers that, in consideration of their
paying the necessary expenses to bring an
action to stop this infringement, he should
give them the sole right of sale, they paying
him the same royalty as heretofore. No
expenses were in fact incurred, but the
plaintiff was subsequently discharged by the
defendant company, and brought this action
against them for an injunction to restrain
them from continuing to use and sell his
patent wreath band. The defendants pleaded
the agreement : — Held, that as the defendants
had not in fact been called upon to advance
the money, the consideration for the agree-
ment had wholly failed, and the agreement
was accordingly void, and the plaintiff was
entitled to the injunction asked for and to
an enquiry as to damages. Templeman v.
Cocquerel, 57 S. J. 40.5— Neville, J.
Infringement — Application to Take Place
Abroad.] — It is an offence against section 60,
sub-section 1 (a) of the Patents and Designs
Act, 1907, to do anything in the United
Kingdom with a view to enable a registered
design to be applied for purposes of sale to
any article in a class in which it is registered
without the consent of the registered pro-
prietor, although the intended application is
to take place outside the United Kingdom.
Haddon d- Co. v. Bannerman, 81 L. J. Ch. 766 ;
[1912] 2 Ch. 602; 107 L. T. 373; 29 R. P. C.
611 ; 56 S. J. 750 — Warrington, J.
Judgment by Consent — Motion or Sum-
mons.]— In actions for the infringement of
registered designs, or of patents, or of trade
marks it is desirable that there should be some
publicitj' given to the order of the Court.
Accordingly, where defendants had consented
to judgment in respect of an infringement of
the plaintiffs' registered design : — Held, that
the plaintiffs were entitled to the costs of
moving for judgment in open Court, and not
merely to such costs as would have been
incurred had the application been made on
summons in chambers. Sinith d Jones, Lim.
V. Service. Reeve ct Co., 83 L. J. Ch. 876;
[1914] 2 Ch. 576; 111 L. T. 669; 31 R. P. C.
319; 58 S. J. 687; 30 T. L. R. 599— Sargant,
Gandy Belt Manufacturing Co. v. Fleming,
Birkby <{■ Goodall, Lim. (18 R. P. C. 276), and
Royal Warrant Holders' Associations. Kitson,
Lim. (26 R. P. C. 157), followed. London
Steam Dyeing Co. v. Digby (57 L. J. Ch. 505 ;
36 W. R. 497) and .4llen v. Oakey (62 L. T.
724) not followed. 76.
TRADE UNION.
See also Vol. XIV. 207. 2110.
Objects of Union — Provision for Representa-
tion on Local Government Authorities — Ultra
Vires — Exception of Boards of Guardians.] —
Judgment in the form of that in Osborne v.
Amalgamated Society of Railwai/ Servants
(78 L. J. Ch. 204; [1909] 1 Ch. 163; on app.
79 L. J. Ch. 87; [1910] A.C. 87), declaring
illegal and restraining the inclusion in the
objects of a trade union of provisions
to secure Parliamentary representation ex-
tended to representation on municipal or other
local government authorities, except boards
of guardians. Wilson v. .Amalgamated Society
of Engineers. 80 L. J. Ch. 469; [1911] 2 Ch.
324 ; 104 L. T. 715 ; 55 S. J. 498 ; 27 T. L. R.
418— Parker, J.
Legality of Objects — Promotion of Parlia-
mentary Representation — Unregistered Trade
Union. — The decision of the House of Lords
1623
TRADE UNION.
1624
in Amalgamated Society of Railway Servants
V. Osborne (79 L. J. Ch. 87; [1910] A.C. 87),
to the effect that a rule which purports to
confer on a trade union power to levy contri-
butions from members for the purpose of pro-
moting Parliamentary representation is ultra
vires and illegal, applies equally whether the
trade union is or is not registered under the
Trade Union Acts, 1871 and 1876. Wilson v.
Scottish Typographical Association. [1912]
S. C. 534— Ct. of Sess.
Action for Enforcing Agreement to Provide
Benefits — Action to Determine Validity of
Proposed Alterations in Rules.] — An action at
the instance of a member of an unregistered
trade union for declarator that certain proposed
alterations in the rules are ultra vires, and for
interdict against misapplication of the funds
of the union, is not a proceeding instituted with
the object of directly enforcing an agreement
to provide benefits to members in the sense of
section 4, sub-section 3 (a) of the Trade Union
Act, 1871. The Court has therefore jurisdic-
tion to entertain such an action. 75.
Alterations of Rules.] — Observations on the
power of the members of a voluntary associa-
tion to alter the constitution by a vote of the
majority or by the votes of delegates. lb.
Agreement to Provide Benefits — Enforce-
ment— Provision of Sick Benefits to Dependant
of Member,] — The rules of a trade union,
which could be altered at the will of the
general council, provided that, if a member
became insane, his wife, family, or parent, if
dependent upon him, should be eligible to
receive sick benefit for one year. In an action
at the instance of the wife of an insane mem-
ber against the union for recovery of sick
benefit, the defenders maintained, first, that,
as the rules could be altered, the pursuer had
no indefeasible jus qucesitum tertio, and so had
no title to sue; and secondly, that, as this was
an action to enforce an agreement to provide
benefits to members, it could not be entertained
by the Court : — Held, first, that, as the agree-
ment embodied in the rules, though revocable,
had not been revoked when the pursuer's claim
arose, she had a good title to sue ; and secondly,
that, as the agreement was not one for the
provision of benefits to a member, but to the
dependant of a member, the jurisdiction of the
Court was not excluded. Love v. Amalgamated
Society of Lithographic Printers, [1912] S. C.
1078— Ct. of Sess.
Society Illegal at Common Lav? — Rules of
Society — Benefit Funds of Society — Separa-
bility of Laveful from Unlavrful Purposes.] —
In an action by the widow of a member of
the respondent society for sick and super-
annuation benefits to which her husband had
become entitled, — Held, on various grounds,
that the action was not maintainable — by the
Lord Chancellor because it was an action,
made unlawful by section 4 of the Trade Union
Act, 1871, to enforce a contract for the benefit
of members; by Lord Macnaghten, that some
of the rules were unreasonable, oppressive,
and destructive of individual liberty ; by Lord
Atkinson, that the action was a common law
action, and that in such an action the society
could not be sued in its registered name nor
as represented by its trustees : and by Lord
Shaw and Lord Robson, that the lawful and
unlawful purposes of the society could not be
separated from each other. Russell v. Amal-
gamated Society of Carpenters and Joiners,
81 L. J. K.B. 619 ; [1912] A.C. 421 ; 106 L. T.
433; 56 S. J. 342; 28 T. L. R. 276— H.L. (E.)
Decision of the Court of Appeal (79 L. J.
K.B. 507; [1910] 1 K.B. 506) affirmed. 76.
An action was brought by a member against
the defendant trade union to recover an
amount in name of sick benefit : — Held, that,
apart from the provisions of the Trade Union
Act, 1871, the trade union was an illegal
association, as its rules were in restraint of
trade, and that the action could not be main-
tained. Thomas v. Portsmouth Ship Construc-
tion Association, 2-8 T. L. R. 372 — D.
Trade Dispute — Acts Done in Furtherance
or Contemplation of.] — The plaintiff, who was
a bandmaster, brought an action against the
defendants, who were officials of a trade union,
for inducing persons who had been engaged to
perform at a concert to refuse to perform at
the agreed rates. It was alleged that this was
effected by threats of penalisation by the union
and by the posting of pickets. The defendants
relied on section 3 of the Trade Disputes Act,
1906, and the Judge told the jury that this
defence was dishonest, and the jury found that
the defendants' acts were not done in further-
ance or contemplation of a trade dispute : —
Held, on the facts, that the defendants' acts
were done in contemplation or furtherance of a
trade dispute, that the Judge's statement
to the jury was irrelevant, and that the defen-
dants were entitled to judgment. Dallimore
V. Williams, 58 S. J. 470; 30 T. L. R. 432
— C.A.
"Trade dispute."] — A "trade dispute"
within the meaning of that expression in the
Trade Disputes Act, 1906, is not confined to a
dispute between an employer and his workmen
or between the workmen themselves. A person
may be entitled to the protection of the Trade
Disputes Act, 1906, notwithstanding that the
act done by him was not done entirely in
furtherance of a trade dispute, or that in doing
the act his mind was not altogether free from
malice. 7b.
A dispute between an employer and other
employers in the same line of business is not
a " trade dispute " within the meaning of
the Trade Disputes Act, 1906, and it does not
become a trade dispute merely because the
officials of a workmen's trade union choose
to assist one side or the other. Therefore,
where an employer refused to join an asso-
ciation of employers, which the officials of a
workmen's trade union thought would be for
the advantage of the workmen employed, and
such officials thereupon induced his workmen,
with whom he had no dispute whatever, to
break their contracts and leave his employ-
ment, in order to force him to join the
association, — Held, that the officials of the
trade union were not protected by the provi-
sions of the Trade Disputes Act, 1906, in an
action for conspiracy. Larkin v. Long, 84 L. J.
1625
TKADE UNION.
1626
P.C. 201; [1915] A.C. 814; 113 L. T. 337;
59 S. J. 455 ; 31 T. L. E. 405— H.L. (Ir.)
Decision of the Court of Appeal in Ireland
([1914] 2 Ir. E. 285) affirmed. lb.
Effect of Rules of Trade Union Contain-
ing Provision for Parliamentary Fund.] — In
an action by the plaintiffs for damages and for
an injunction against the defendant trade
union and the defendant T., who was an
agent for the trade union, alleging that the
defendants had wrongfully procured or induced
the plaintiffs' employers to cease to employ
them, the Judge dismissed the action on the
ground that there was a trade dispute and
that the defendant trade union was protected
by section 4 of the Trade Disputes Act, 1906,
and that as regards the defendant T. he was
protected by section 3 of the Act. On appeal,
—Held, that the Judge was right in dismissing
the action. The fact that the rules of a trade
union make provision for the formation of a
Parliamentary fund in the manner held illegal
in Amalgamated Railway Servants' Society v.
Osborne (79 L. J. Ch. 87 ; [1910] A.C. 87) does
not have the effect of taking the trade union
out of the protection of the Trade Disputes
Act, 1906. Gaskell v. Lancashire and Cheshire
Miners' Federation, 56 S. J. 719; 28 T. L. E.
518— C.A.
Registered Name — Right to be Sued in.]
—Section 4 of the Trade Disputes Act, 1906, i
does not prevent proceedings from being taken |
against a trade union by a member in respect
of (a) misapplication of the funds of the union,
and (b) illegal expulsion, such proceedings
being founded in contract. Parr v. Lancashire
and Cheshire Miners' Federation, 82 L. J.
Ch. 193; [1913] 1 Ch. 366; 108 L. T. 446;
29 T. L. E. 235— Neville, J.
Certificate of Registration.] — Where one of
the objects of a trade union is declared to be
illegal, its certificate of registration under
section 6 of the Trade Union Act, 1871, can
still be relied on, unless and until it has been
cancelled in accordance with the provisions of
section 8 of the Trade Union Act Amendment
Act, 1876. lb.
Unregistered Trade Union — RepresentatlYe
Action.] — An unregistered trade union can be
sued in a representative action, and where its
president, vice-president, secretary, and trea-
surer are sued they may be taken sufficiently
to represent the whole body for the purposes
of the action. lb.
Alteration of Rules — Whether Ultra
Yires.] — By the rules of a trade union it was
provided that a delegate meeting should not
have power to alter any rule unless notice of
the proposed alteration had been given :—
Held, that this did not mean that a rule could
not be altered unless notice of the identical
alteration ultimately adopted had been given ;
it merely meant that notice of an intention to
alter the rule must be given, and then the
delegate meeting could by discussion alter it
in the way they might there and then deter-
mine. Amalgamated Society of Engineers v.
Jones, 29 T. L. E. 484— Bailhache, J.
Expulsion of Member — Action to Restore —
Construction of Rules — Restraint of Trade —
Right to Maintain Action.] — The plaintiff,
formerly a member of a trade union society,
was expelled therefrom by a resolution of the
executive committee. He now brought this
action alleging by his statement of claim that
he had been unjustly expelled with a view to
punish him for having successfully invoked the
aid of the Courts to prevent the application of
the funds of the society for illegal purposes,
and claiming in substance by way of relief his
restoration to membership of the society. The
defendant society by way of defence contended
that no cause of action was disclosed by the
statement of claim, and pleaded the Trade
Union Act, 1871, s. 4; and the point of law
so raised was set down for hearing under
Order XXV. rule 2. The rules of the society
did not provide that when a strike was sanc-
tioned by the executive committee every mem-
ber was bound to strike, but provided that
strike notices might be issued to the members
for signature, and the strike was to go for-
ward only if the notices were signed by two-
thirds of the members, and there was nothing
in the rules to prevent men who had struck
from resuming work if they thought fit : —
Held, that (assuming that the rules of the
society were in restraint of trade so as to
render it an illegal association at common law
independently of the Trade Union Act, 1871)
the action was still maintainable, since the
relief claimed did not fall within the provisions
of section 4, sub-section 3 (a). Rigby v.
Connol (49 L. J. Ch. 328 ; 14 Ch. D. 482) and
Chamberlain's Wharf, Lim. v. Smith (69 L.J.
Ch. 783; [1900] 2 Ch. 605) considered.
Osborne v. Amalgamated Society of Railway
Servants, 80 L. J. Ch. 315; [1911] 1 Ch. 540;
104 L. T. 267 ; 27 T. L. E. 289— C.A.
Held also, that, on the true construction of
the society's rules, they were not in restraint
of trade so as to render the society illegal at
common law. lb.
A society is not to be found illegal by reason
of difficulties in interpreting the rules, but by
finding in sufficiently plain language that there
are in the rules provisions so in restraint of
trade as to render the society illegal at com-
mon law. lb.
Breach of Contract Contained in Rules —
Claim for Damages — Right to Maintain
Action.l — A member of a trade union who has
been illegally expelled by the committee under
the rules of the association can maintain an
action against the trade union for a declara-
tion that he was still a member and for an
injunction, such action not being barred by
section 4 of the Trade Union Act, 1871. but
he cannot recover damages for breach of the
contract contained in the rules, since the com-
mittee who were responsible for breaking the
contract were acting as agents for the plaintiff
equally with his fellow members. Judgment
of the Divisional Court (84 L. J. K.B. 557)
varied on the question of damages. Kelly v.
National Society of Operative Printers' Assis-
1627
TKADE UNION.
1628
tants, 84 L. J. K.B. 2236; 59 S. J. 716;
31 T. L. E. 632— C.A.
Unlawful Combination — Branches and
Delegates.] — A person whose entrance fee and
contributions to a trade union have been
acknowledged by a responsible official and who
has received a card of membership, is entitled
to be a member of the union, and cannot, in
the absence of express rules, be expelled by an
arbitrary resolution of the executive. Luby v.
Waricickshire Miners Association, 81 L. J.
Ch. 741; [1912] 2 Ch. 371; 107 L. T. 452;
56 S. J. 670; 28 T. L. E. 509— Neville, J.
Implied Repeal of Statute by Conflicting
ProYisions of Later Act.] — In view of the
recognition of trade unions by numerous Acts
of Parliament and by the Courts, they cannot,
even where their organisation embraces
affiliated branches and delegates, be considered
" unlawful combinations " or " criminal asso-
ciations " within the meaning of the Unlawful
Societies Act, 1799, or the Seditious Meetings
Act, 1817. The applicability to them of these
statutes is impliedly repealed by the later Acts
of the Legislature. 76.
Funds — Purchase of Shares — Newspaper
Company — Promotion of Policy of Political
Party — Illegality of Purchase.] — The rules of
a registered trade union provided that its
objects were the support of members in cases
of sickness, accident, and unemployment, the
regulation of the relations between workmen,
the assistance of other similar societies, and
the formation of a fund for cases of distress,
and that all moneys subscribed by members
should be held by the trustees in trust for
the members generally. In accordance with
instructions from the general council of the
union the trustees applied and paid for shares
in a company formed to publish a newspaper
for the purpose of promoting the policy of a
political party called the Labour Party. In
an action by a member against the union and
the trustees, — Held, that the application of
the funds of the union for the above purpose
was unauthorised and ultra vires, and that the
trustees must refund the money to the union.
Bennett v. National Amalgamated Society of
Operative House and Ship Painters and
Decorators, 31 T. L. E. 203— Warrington, J.
The executive council of a registered trade
union applied a portion of the funds of
the union in subscribing for shares in a com-
pany formed for the purpose of publishing
a political newspaper. The transaction was
not really an investment, but a contribution
towards the expenses of publishing the news-
paper : — Held, following Bennett v. National
Amalgamated Society of Operative House and
Ship Painters and Decorators (31 T. L. E.
203), that this application of the funds was
not within any of the objects of the trade
union as defined by its rules, and that there-
fore the members of the council were per-
sonally liable to repay the amount to the
union. Carter v. United Society of Boiler-
makers, 60 S. J. 44; 32 T. L. E. 40—
Younger, J.
Payment by Union in Accordance with Rules
to Member — Agreement by Member to Repay
in Certain Events — Claim for Repayment —
Agreement for Application of Funds to Provide
Benefits to Members — Proceeding Instituted
with Object of Directly Enforcing Agreement."
— The defendant, a member of a trade union,
having met with a severe accident at his
work, received from the trade union, in
accordance with their rules, a sum of lOOZ.,
and by a written agreement which by the
rules he had to execute he agreed to repay
that amount in the event of his returning
to his trade. The agreement so executed
recited the rules under which the payment
was made and under wliich it was repayable,
and after an acknowledgment by the defen-
dant of the receipt of the lOOZ. and an agree-
ment by him to repay it in the said event,
empowered the plaintiffs, the officers of the
trade union, to sue for it if it was not paid
on the happening of that event. The defen-
dant having returned to his trade, and the
lOOZ. not having been repaid by him, the plain-
tiffs sued for its recovery : — Held (Vaughan
Williams, L.J., and Buckley, L.J. ; Kennedy,
L.J., dissenting), that the agreement sought
to be enforced was one for the application of
the funds of a trade union to provide benefits
to members within section 4, sub-section 3 (a)
of the Trade Union Act, 1871; and that by
virtue of that section the action was not main-
tainable. Baker v. Inqall, 81 L. J. K.B. 553;
[1912] 3 K.B. 106; 105 L. T. 934; 56 S. J.
122; 28 T. L. E. 104— C.A.
Decision of the Divisional Court (80 L. J.
K.B. 699; [1911] 2 K.B. 132) reversed. 7b.
The rules of a trade union provided that
a member permanently disabled should receive
the sum of lOOL, but that if he should resume
work he must refund the 100/., and that at
the time of receiving the benefit he must sign
an agreement to refund it should he resume
work. A member of the union received a
payment of 100/. in respect of permanent
disablement, and, in accordance with these
rules, he signed a memorandum of agreement
undertaking to refund that sum if he resumed
work. The union, averring that the injured
man had resumed work, brought an action for
recovery of the 100/., and founded on the
memorandum of agreement. The defender
maintained that the action was rendered
incompetent by section 4 of the Trade Union
Act, 1871 : — Held (diss. Lord Johnston), that
the action was competent in respect that the
agreement sued on was not one of the agree-
ments specified in section 4 of the Act, and,
in particular, was not an agreement for the
application of the funds of the union to provide
benefits to members within the meaning of
sub-section 3 (a) of that section. Wilkie v.
King. [1911] S. C. 1310— Ct. of Sess.
Action of Tort — Competency.] — By section 4,
sub-section 1 of the Trade Disputes Act, 1906.
no action in respect of any tortious act alleged
to have been committed by or on behalf of a
trade union can be entertained by any Court,
whether such tortious act was or was not com-
mitted in contemplation or furtherance of a
trade dispute, and under Order XXV. rule 4,
such an action mav summarilv be dismissed.
1629
TRADE UNION— TRAMWAYS.
1630
Vacher d Sons, Lim. v. London Society of
Compositors, 82 L. J. K.B. 232; [1913] A.C'.
107; 107 L. T. 722; 57 S. J. 75; 29 T. L. K.
73— H.L. (E.)
Decision of the Court of Appeal (81 L. J.
K.B. 1014; [1912] 3 K.B. 547) affirmed. lb.
Slander of Official — Loss to Union — Action
by Official — Common Interest.] — An agree-
ment by a trade union to indemnify any of its
officers who tal\e proceedings against a
slanderer for slander is void on the ground of
maintenance. The fact that the slanders com-
plained of injure the trade union as well as
the officer does not create a common interest
which would justify the trade union in main-
taining the action. A common cause is not a
common interest. Oram v. Hutt, 83 L. J.
Ch. 161; [1914] 1 Ch. 98; 110 L. T. 187;
78 J. P. 51 ; 58 S. J. 80 ; 30 T. L. R. 55— C. A.
Costs — Payment by Union — Ultra Yires —
Maintenance.] — A trade union is not justified
in defraying the costs of legal proceedings by
its members whenever an indirect benefit may
be expected to result from the proceedings.
Alabaster v. Harness (64 L. J. Q.B. 76;
[1894] 2 Q.B. 897; [1895] 1 Q.B. 339) con-
sidered and followed. Ih.
Decision of Swmfen Eady, J. (82 L. J. Ch.
152), affirmed. lb.
Threat or Warning to Employer not to
Employ Plaintiff.] — The plaintiff, a cigar
maker in the employment of a companj^ sued
the defendants, who were in the same employ-
ment, for damages and an injunction to
restrain them from inducing her employers to
cease to employ her. The plaintiff was a
member of the Independent Cigar Makers'
Union. The defendant B. and the other em-
ployees were members of the Cigar Makers'
Mutual Association. When the plaintiff
entered into the employment B. asked her if
she belonged to the association. She replied
that she did not. B. said, " You'll have to
join next week or we won't work with you."
A week later the plaintiff was asked if she
had joined, and on her answering in tlie
negative B. said. "You can't work here."
The plaintiff replied, " You can't sack me.
Mr. Phineas Phillips took me on; he alone can
sack me." B. tliereupon said, " Then we'll
strike." The defendants then went to Mr.
Phineas Phillips, who thereafter said to the
plaintiff, " My workpeople refuse to work
with you, and will go on strike if you don't
join ; you'll have to go." Mr. Phineas Phillips
at the trial stated that B. said that the plain-
tiff had refused to join their union, and that
their union instructed them that if she stayed
they would not stay there. He said that he
felt compelled to discharge her, as he did not
(are to see his employees go out. Tlie Countv
Court Judge held that there was no evidence
of a threat to go to the jury, and nonsuited
the plaintiff : — Held, that the County Court
Judge was right in so holding. Santen v.
Bu.iyiach, 57 S. J. 226; 29 T. L. R. 214— C. A.
Decision of the Divisional Court (28 T. L. R.
515) reversed. lb.
Intimidation — Right of Police to Prefer In-
formation— Liability of Persons Conniving at
Acts of Intimidation.] — The appellants were
charged on an information preferred by the
respondent, a police superintendent, with
having, with a view to compel one A. to
abstain from working at the L. motor works
where A. had a legal right to work, intimi-
dated him by assembling in large numbers and
throwing eggs at him when he was on his way
from work. The evidence was that while A.
was returning from the L. w^orks some of the
appellants, each of whom was wearing a white
ribbon, and all of whom had recently been
working at the L. works, but were no longer
in such employment, threw eggs, two of which
struck A. Some of the appellants were not
proved to have thrown eggs, but they were
with the appellants who did so. There were
shouts of " Blacklegs" and "Dirty scabs."
A. had not authorised the respondent to lay
the information, but he stated that he would
have proceeded if the police had not done so.
The Justices convicted the appellants : — Held,
first, that the respondent was entitled to lay
the information ; and secondly, that all the
appellants were rightly convicted, notwith-
standing that the evidence only shewed that
two of them had thrown eggs at A. Youtig
V. Peck. 107 L. T. 857; 77 J. P. 49; 23 Cox
C.C. 270; 29 T. L. R. 31— D.
TRADING WITH THE
ENEMY.
See WAR.
TRAMWAYS.
See also Vol. XIV. 211. 2124.
Lease — Contract for Repairs between Lessor
and Contractor — Negligence of Contractor —
Liability to Lessee — Damages — Derailment of
Tramcar — Compensation Paid to Injured Pas-
sengers— Right of Lessee to Recover.^ — The
plaintiff company were the assignees of a lease
of a tramway granted by the corporation of a
borough. Under the lease the repairs of the
tramway were to be executed by the corpora-
tion at the cost of the company, and an agree-
ment was entered into between the corporation
and the plaintiffs which provided that facili-
ties should be afforded enabling the company
to maintain the service of tramcars during the
execution of the works, and that the corpora-
tion should insert in the contract to be entered
into by them a provision imposing upon the
contractor responsibility for all claims result-
ing from accident sustained by the company
from the execution of the works. The
corporation entered into an agreement with the
defendant for the relaying of the track, bv
1631
TKAMWAYS.
1632
which the defendant agreed to indemnify the ,
corporation and to be responsible for all
damage arising out of the execution of the
work. The plaintiffs were not parties to this
agreement. Owing to the negligent manner
in which the work was carried out by the
defendant's servants, one of the plaintiffs'
tramcars, while passing along the tramway,
was derailed and fell into the excavation,
and several of the passengers were injured.
In an action brought by the plaintiffs to recover
from the defendant the sums paid as com-
pensation to the injured passengers, — Held,
that the defendant had injuriously affected
both the proprietary rights of the plaintiff
company as lessees of the tramway and also
their rights of passage on the highway, and
was therefore liable. Held, further, that the
plaintiffs were entitled to recover the amounts
paid by them as compensation to the
passengers. Birmingham City Tram,ivays Co.
V. Law, 80 L. J. K.B. 80; [1910] 2 K.B.
065; 103 L. T. 44; 74 J. P. 355; 8 L. G. E.
G67 — A. T. Lawrence, J.
Compulsory Purchase of Undertaking by
Local Authority — Previous Assignment of
Undertaking by Promoters to Company — Con-
sent of Board of Trade to Assignment.] — In
1895 the promoters of an undertaking for the
construction of tramways in the borough of
West Hartlepool obtained a provisional order
which was confirmed by an Act passed in
1895. By that Act the defendant corporation
had the option reserved to them of acquiring
the undertaking after the expiration of
fourteen years. In 1896 the promoters
entered into an agreement with the Electric
Traction (Pioneer) Co., Lim. to sell the
undertaking to them ; and a further agreement
made in October, 1896, purported to sell the
undertaking, with the concurrence of that
company, to the plaintiff company. Neither
of these agreements was formally approved
by the Board of Trade in pursuance of a pro-
vision in the Confirmation Act, that no sale
or assignment of the undertaking should be
valid without the approval of that Board
signified in writing by their secretary or
assistant secretary. The tramway was com-
pleted in March, 1897, and in January, 1910,
the defendant corporation gave notice to the
promoters to sell the undertaking to them.
The matter was referred to an arbitrator, who
assessed the value at 12,963L In an action
by the company " and all others the promoters
of the Hartlepool Electric Tramways Order,
1895," to recover the sum awarded, the cor-
poration contended that they could make
no valid payment to the original promoters,
who had no legal title to the tramways con-
structed by the company, nor could they pay
anything to the company, since the assign-
ment to them had not been duly approved by
the Board of Trade : — Held, that the assign-
ment of the rights of the promoters, who had
not constructed the tramways, did not require
the approval of the Board of Trade, and that
the Board had by certain documents, signed
by an assistant secretary of the Board, suffi-
ciently recognised the company as the trans-
ferees of the undertaking. Hartlepool
Electric Tramways Co. v. West Hartlepool
Corporation, 9 L. G. E. 1098; 75 J. P. 537
— C.A.
Statutory Powers — Corporation Licence —
Consent of the Board of Trade — Adjacent Dis-
tricts.] — The Eccles Corporation, by the
Eccles Corporation Act, 1901, were empowered
to lay down, use, and maintain tramways
within their district and to enter into agree-
ments with owners of tramways in adjacent
districts with regard to the construction,
working, use, and management uy the con-
tracting parties of their respective tramways,
subject to the approval of the Board of Trade.
Under an agreement, approved by the Board
of Trade, made between the Eccles and the
Salford Corporations, the Eccles tramways
were constructed by the Salford Corporation,
and the latter were to be entitled to a lease
thereof for thirtiy-five years. By the Salford
Corporation Act, 1899, the corporation tram-
ways, unless the subject or context otherwise
required, were defined to include any tram-
ways demised to or worked by the corporation,
and the Salford Corporation had powers of
entering into working agreements with regard
to their tramways with adjacent tramway
owners similar to those in the Eccles Act, save
that there was no provision as to the approval
of the Board of Trade. Whilst the agreement
was current, the Salford Corporation, without
the leave of the Eccles Corporation or of the
Board of Trade, granted to the South Lanca-
shire Tramway Co. a revocable licence to use
a portion of the Escles tramways adjoining the
tramway company's system : — Held, that
the Eccles tramways were not a portion of the
Salford tramways within the definition clause
of the Salford Act, because the subject or con-
text did otherwise require, and that the licence
was ultra vires, no consent of the Board of
Trade having been obtained as required by the
Eccles Act. Salford Corporation v. Eccles
Corporation, 81 L. J. Ch. 561; [1912] A.C.
465 ; 106 L. T. 577 ; 76 J. P. 249 ; 10 L. G. E.
341; 56 S. J. 428; 28 T. L. E. 343— H.L. (E.)
Decision of the Court of Appeal (79 L. J.
Ch 759 ; [1910] 2 Ch. 263) affirmed. lb.
By-law Requiring Passenger to Leave
Tramcar by the " hindermost " Platform —
Car Stationary at Terminus.] — A by-law re-
quired passengers to leave the tramcars by the
"hindermost" platform. When a car had
arrived at and was stationary at the terminus,
the respondent left the car by the platform
which, during the journey just made by him on
the car, had been the foremost platform : —
Held, that the word " hindermost " must be
construed with reference to the particular
passenger and the journey on which he was
engaged, and that " hindermost " with refer-
ence to the respondent meant hindermost
with reference to the journey he had just
taken, and that in leaving the car as he did
he had offended against the by-law. Monkman
V. Stickney, 82 L. J. K.B. 992; [1913]
2 K.B. 377; 109 L. T. 142; 77 J. P. 368;
11 L. G. E. 612; 23 Cox C.C. 474— D.
Passenger Travelling without Paying Re-
quisite Fare — Proof of Fraud.] — Section 51 of
the Tramways Act, 1870, enacts that any
1633
TRAMWAYS.
1634
person who, " Iniving paid his fare for a
certain distance, knowingly and wilfully pro-
ceeds in any " tramway car " beyond such
distance, and does not pay the additional fare
for the additional distance " shall be liable
to a penalty ■.— Held, that a person cannot be
convicted of an offence under this section unless
it appears that he acted with a fraudulent in-
tention. Niinrno v. Lanarksiiire Tramways
Co., [1912] S. C. (J.) 23— Ct. of Just.
Passenger in Tramcar Suspected of
Avoiding Payment of Fare — Ejected by Con-
ductor— Action for Assault — Liability of Tram-
way Autliority.] — The conductor of a tramcar
belonging to the respondents, a tramway
authority, in thinking that the appellant, a
passenger in the car, was attempting to avoid
payment of his fare, ejected him from the car
with such force that he suffered injuries. The
appellant brought an action in the County
Court against the respondents, claiming
damages for the assault committed on him by
their servant. The respondents denied their
liability on the ground that sections 51 and 52
of the Tramways Act, 1870, and their by-laws
gave them power to detain and bring before
a magistrate, who might impose a fine on a
person who had committed the offence alleged
against the appellant, but that they had no
power to eject such a person from a car, and
could not therefore delegate the power to eject
him to their servant, who had acted outside
the scope of his authority : — Held, on appeal,
that the remedies given to the respondents by
sections 51 and 52 of the Tramways Act,
1870, being in addition to, and not exclusive
of, their common law right as owners of the
tramcar to eject a trespasser from their pro-
perty, using no more force than might be
necessary for the purpose, the respondents had
power to eject from one of their cars a person
who refused to pay his fare ; that they could
delegate that power to a servant ; that the
tort of the conductor was consequently com-
mitted in the course of his service; and that
the appellant was therefore entitled to recover
his claim against the respondents. Wliittaker
V. London County Council, 84 L. J. K.B.
1446; [1915] 2 K.B. 676; 113 L. T. 544;
79 J. P. 437; 13 L. G. E. 950; 31 T. L. K.
412— D.
The plaintiff claimed damages against the
Tj.C.C. for having been injured by one of their
tramway conductors, who angrily threw him off
a tramcar. At the trial the defendants, who
called no evidence, submitted that, inasmuch
as the powers of the Council were derived from
their by-laws, which did not, in terms at any
rate, give power to eject a passenger for non-
payment of fare, the conductor, who presum-
ably ejected the plaintiff for that reason
(although in fact he was willing and able to
pay his fare), had acted from private spite and
malice, for the consequences of which they
were not liable. Neither the plaintiff nor the
defendants were able to trace the car nor
identify the conductor. Ridley, J., nonsuited
the plaintiff, and the Court of Appeal upheld
his decision : — Held, that, under the by-laws,
a passenger who does not pay, or shews no
intention of paying, his fare can be treated as
a trespasser and ejected with the use of reason-
able force. That it was a question for the jury
to decide what was the motive in this case
which prompted the conductor to eject the
plaintiff; and there must be a new trial.
Whittaker v. London County Council (84 L. J.
K.B. 1446; [1915] 2 K.B. 676) approved.
Hutchins v. London County Council, 60 S. J.
156— H.L. (E.)
Workmen's Cars.] — Where a tramway com
pany was bound by its private Act to run cars
for workmen at reduced fares specified in the
Act, semble, that the Act did not warrant the
company in discriminating in the matter of
fares between workmen and other passengers
who were allowed to travel in cars for work-
men. iVtmmo V. Lanarkshire Tramways Co.,
[1912] S. C. (J.) 23— Ct. of Just.
Tramcar — Upper Compartment Covered in
— "Inside" — Specified Number of Passengers
— Greater Number Conveyed in Car.] — By
section 13 of the Railway Passenger Duty Act,
1842, " no stage carriage shall be allowed to
carry at one time a greater number of passen-
gers in the whole, or in the inside or on the
outside thereof, than the same is constructed
to carry according to the regulation of the
Act; . . ." And by section 15 if a greater
number of passengers is conveyed at any one
time, in, upon, or about any stage carriage, a
penalty is imposed upon the driver and con-
ductor. By section 27 of the London County
Council (Tramways and Improvements) Act,
1913, " Notwithstanding anything to the con-
trary contained in any Act . . . the Council
may ... on special occasions carry inside any
carriage used by them on any tramways an
additional number of passengers not exceeding
one-third of the number of inside passengers
which such carriage is licensed to contain."
The respondent was the conductor of a tram-
car which was constructed to carry passengers
in two compartments, both of which were
covered in. The car was constructed to carry
in the lower compartment thirty passengers,
and in the upper forty-four passengers. Upon
an occasion, which was a " special occasion "
within the meaning of section 27 of the Act
of 1913, the number of passengers conveyed in
the upper compartment was forty-eight. On
an information charging the respondent with
having conveyed in, upon, and about a stage
carriage a greater number of passengers than
the carriage was constructed to carry, the
magistrate held that the word " inside " in
section 27 of the Act of 1913 included both the
lower and the upper compartments of the car,
and dismissed the information : — Held, that
under the two enactments " inside " must be
treated as correlative with the lower compart-
ment, and " outside " as correlative with the
upper compartment, and that the respondent
had therefore committed an offence under sec-
tions 13 and 15 of the Act of 1842. Phesse v.
Fisher, 84 L. J. K.B. 277 ; [1915] 1 K.B. 572 ;
112 L. T. 462: 79 J. P. 174; 13 L. G. R. 269:
31 T. L. R. 65— D.
Rating.] — See Local Govehnment.
52
1635
TEANSFEE— TEOVEK.
1636
TRANSFER.
Of Negotiable Instruments.] — See Bill of
ExcHAXdE; Negotiable Instruments.
Of Personal Property.] — See Bill of Sale.
Of Proceedings.] — See Codnty Court ;
Practice.
Of Shares.] — See Company.
TREASON.
See CEIMINAL LAW.
TRESPASS.
See also Vol. XIV. 224, 2142.
To Land — Justification — Necessity — Act
Done in Preservation of Sporting Bights —
Setting Fire to Heather — Reasonable Necessity
— Actual Necessity.] — To justify a trespass on
the ground that intervention was necessary in
order to prevent destruction of property, it
need not be shewn that if the intervention had
not taken place the property would have been
destroyed or injured ; it is sufficient to shew
that the intervention was in the circumstances,
at the time when it took place, in fact reason-
ably necessary. Cope v. Sharpe, 81 L. J.
K.B. 346; [1912] 1 K.B. 496; 106 L. T. 56;
56 S. J. 187; 28 T. L. R. 157— C. A.
The plaintiff, who was a landowner, let the
shooting rights over a part of his land to a
sporting tenant. A serious heath fire having
broken out on that part of the plaintiff's land,
the defendant, who was the bailiff and head
gamekeeper of the sporting tenant, with the
view of protecting his master's property, set
fire to patches of heather between the main
fire and a covert in which his master's
pheasants were being preserved, in order that
the main fire when it reached the bare patches
so caused should have nothing to feed on and
should thus die out. The fire was in fact
extinguished independently of what the defen-
dant 80 did. The plaintiff having brought an
action against the defendant claiming damages
for trespass and an injunction, the jury found
in answer to questions left to them — first,
that the method adopted by the defendant was
not in fact necessary for the protection of his
master's property ; secondly, that it was
reasonably necessary in the circumstances : —
Held (Vaughan "Williams, L.J., dissenting),
that the meaning of the findings of the jury
was not merely that the defendant bona fide
believed what he did to be necessary, but
that, although in the result it turned out to
have been unnecessary, it was in fact, at the
time when the defendant did it, reasonably
necessary in tJie circumstances. 7b.
Decision of the Divisional Court (80 L. J.
K.B. 1008; [1911] 2 K.B. 837) reversed. lb.
Adjoining Land — Incursion of Locusts —
Right to Divert on to Neighbour's Land.] —
The owner or occupier of land has a right to
repel a danger threatening his property and to
trespass on his neighbour's land for that pur-
pose, even though the result may be to transfer
the danger and consequent mischief from his
own to his neighbour's property. Greyvensteyn
V. Hattingh, 80 L. J. B.C. 158; [1911] A.C.
355; 104 L. T. 360; 27 T. L. R. 358— B.C.
Adjoining Premises — Excavations —
Danger to Plaintiff's Wall — Underpinning by
Defendants — Claim for Indemnity.] — The
plaintiff was the landlord of certain premises,
and the defendants entered into a contract with
the Commissioners of Works for the extension
of adjoining premises. A clause in the contract
provided that the defendants should indemnify
the Commissioners against claims for damage,
this clause not being limited to damage caused
during the progress of the work. The defen-
dants placed beneath the plaintiff's wall a
mass of brickwork and concrete, some of which
would require to be cut away in the event
of the plaintiff desiring to make a cellar.
During the excavations there was danger of
one of the plaintiff's walls collapsing, and
the architect representing the Commissioners
ordered the defendants to underpin the wall.
The defendants underpinned the wall without
the plaintiff's consent, although the danger
was not so imminent as to make it reasonably
necessary to do the work without it. The
plaintiff brought an action of trespass against
the defendants, and the latter claimed an
indemnity from the Commissioners as third
parties : — Held, that the imminence of the
danger did not affect the right of the plaintiff
to complain of injury to his premises, and
that the defendants had not justified the
trespass and were liable to pay damages to the
plaintiff, but that they were entitled to an
indemnity from the Commissioners, as the con-
tract provided that they were to proceed with
the work in accordance with the instructions
of the Commissioners' architect. Kirby v.
Chessum, 79 J. B. 81; 12 L. G. E. 1136:
30 T. L. R. 660— C. A.
Decision of Avory, J. (30 T. L. R. 15),
varied. lb.
In Pursuit of Game.] — See Game.
TRIAL.
See CRIMINAL LAW; BRACTICE.
TROVER.
Demand and Refusal to Return Goods after
Issue of Writ — Evidence of Prior Conversion.!
— The plaintiff's watch was stolen and pledged
with a pawnbroker, and was afterwards sold
as an unredeemed pledge by public auction
by auctioneers at their City auction rooms
on the first floor of a building in the City
of London. It was subsequently bought by
B., a bona fide purchaser, and was afterwards
1637
TKOVEK— TKUST AND TEUSTEE.
1638
sent to the defendant, a jeweller, from whom
it had originally been bought by the plaintiff,
for examination. On receipt of the watch
from B., the defendant, who recognised the
watch, wrote to him informing him that it had
been stolen ; he also informed the plaintiff of
his discovery, and said that B. was willing to
give up the watch on being paid the price he
had given for it. The plaintiff then through
his solicitor made a formal demand for the
watch, and, on its being refused, the writ in
the action, which had been issued early on the
same day, was served on the defendant : —
Held (Vaughan Williams, L.J., dissenting),
without expressing any opinion on the question
of market overt, that upon the facts of the
case there was no evidence of a wrongful deten-
tion or conversion before the issue of the writ
so as to enable the plaintiff to maintain the
action. Clayton v. Le Roy, 81 L. J. K.B. 49;
[1911] 2 K.B. 1031; 105 L. T. 430; 75 J. P.
521; 27 T. L. E. 479— C.A.
TRUCK ACTS.
See MASTER AND SERVANT.
TRUST AND TRUSTEE.
I. Generally.
A. Creation and Declaration of Trusts,
1638.
B. ResultinCt Trusts, 1639.
C. The Trustee.
1. Apfointment of New Trustees. 1640.
2. Rights, Powers, Duties, and Liabilities.
a. In General, 1641.
b. Management, 1643.
c. Power of Leasing, 1643.
d. Powers of and Trusts for Sale,
1644.
e. Investment of Trust Funds, 1646.
3. Inde)iinity, 1650.
4. Liability of Trustees for Breach of
Trust, 1650.
5. Liability for Agents Employed by
Trustees, 1652.
D. The Cestui que Trust, 1652.
E. Actions by and Against Trustees-
Statute OF Limitations, 1652.
F. Following Trust Property, 1655.
G. Payment into and out of Court, 1656.
H. Vesting Orders, 1656.
n. Public Trustee, 1657.
I. GENERALLY.
A. CREATION AND DECLARATION OF
TRUSTS.
See also Vol. XIV. 318, 2149.
Declaration of Trust — Appropriation of
Trust Funds — Entries in Account Books— In-
tention to Create Charge — Equitable Charge —
Non-communication to the Cestuis que Trust —
Interest in Land — Writing Signed by the
Party Enabled to Declare the Trust.] — In
order to constitute a good declaration of trust
the Court must be satisfied that the declaration
of trust purported to be created is irrevocable.
Where the declaration of trust is not com-
municated to any one, that raises a strong
inference that it is not irrevocable. Where an
interest in land is affected by the declaration
of trust the same must be in writing signed
by the party by law enabled to declare the
trust in order to satisfy section 7 of the
Statute of Frauds. Cozens, In re; Green v.
Brisley. 82 L. J. Ch. 421; [1913] 2 Ch. 478;
109 L. T. 306; 57 S. J. 687— Neville, J.
A trustee appropriated trust funds. As
appeared by his account books after his death,
his custom was to insert the date and amount
of the appropriation and put a note in the
margin of the account indicating that the sum
was advanced to himself. On some occasions
he also inserted the letters " Ecc " (an
abbreviation for " Ecclesbourne," the name of
his house), or the words " advanced on equit-
able deposit." In some of the entries his
name or initials were inserted, in others they
were not. The entries were for the most part
in pencil, and erasures and alterations had
been made. It w-as contended that these
entries constituted a good charge by way of
declaration of trust of the deceased trustee's
house to answer the suras so appropriated.
For seventeen out of the twenty years during
which tlie appropriations were taking place the
deeds of the trustee's house Ecclesbourne were
deposited or mortgaged with other persons.
Neither the entries nor the fact of the appro-
priations were conmiunicated to any one, and
the only evidence was the entries in the books :
— Held, that they did not constitute a valid
declaration of trust. lb.
The explanation of Middleton v. Pollock;
Elliott, Ex parte (45 L. J. Ch. 293; 2 Ch. D.
104), given by Chitty, L.J., in New, Prance,
and Garrard's Trustee v. Hunting (66 L. J.
Q.B. 554 ; [1897] 2 Q.B. 19, at p. 32), approved
of. lb.
Secret Trust — Parol Evidence — Communica-
tion to Trustees.] — A testatrix, by her will,
appointed the appellant L. and his daughter
W. her executors and trustees, and, after
leaving money for a charitable bequest,
directed that her said trustees and executors
should " expend all or any the residue of my
estate in such manner as they know to be
most in agreement with my desires." There
was evidence that the testatrix had been for
a long time on very intimate terms of friend-
ship with L. and his family, and that she
had told them on more than one occasion that
1639
TKUST AND TKUSTEE.
1640
she intended to leave her property to L.'s
daughters : — Held, that the evidence vras not
sufficient to establish a trust in favour of the
daughters, and that the residue must go to
the testatrix's next-of-kin. Fleetwood, In re;
Sidgreaves \. Brewer (49 L. J. Ch. 514 ;
15 Ch. D. 5941, doubted. Le Page v. Gardom,
84 L. J. Ch. 749; 113 L. T. 475; 59 S. J. 599
— H.L. (E.)
Judgment of the Court of Appeal (sub
nam. Gardom, In re; Le Page v. Att.-Gen.
(83 L. J. Ch. 681 ; [1914] 1 Ch. 662), affirmed.
lb.
Charitable Gift — Trust for Protection
and Benefit of Animals.] — A testatrix ap-
pointed C. W. to be one of her executors and
trustees, and bequeathed the residue of her
estate to him absolutely. It appeared, how-
ever, that the testatrix had in her lifetime
stated to C. W. that she -wished him to apply
the residue for the protection and benefit of
animals ; and that as it would be difficult to
draft a will giving him the latitude that she
desired, the best method of carrying out her
wishes would be to bequeath the residue to
C.W. absolutely, leaving the spending thereof,
both capital and income, in the way intimated
to C. W.'s absolute discretion, relying upon his
love of animals : — Held, that the bequest was
not an absolute gift to C. W. beneficially, but
was subject to a secret trust. Wedgwood,
In re; Allen v. Wedgwood, 84 L. J. Ch. 107 ;
[1915] 1 Ch. 113; 112 L. T. 66; 59 S. J. 73;
31 T. L. E. 43— C.A.
Decision of Warrington, J., on this point
reversed. 7b.
B. RESULTING TRUSTS.
See also Vol. XIV. 416, 2156.
Subscriptions for Special Object— Unapplied
Surplus — Appropriation of Payments — Result-
ing Trust for Subscribers.] — A fund was raised
by subscription to aid the wounded in the
Balkan War, and at the end of the war an
unapplied surplus remained of the funds so
subscribed, which was distributable among
subscribers by way of resulting trust. The
accounts shewed that the amount actually sub-
scribed up to November 8, 1912, was the exact
amount actually expended in aiding the
wounded in the war. It was contended that
the rule in Clayton's Case (1 Mer. 572, 608)
applied so that those who had subscribed after
November 8, 1912, were entitled to be paid
back their subscriptions in full out of the
surplus : — Held, that the principle of Clayton's
Case (1 Mer. 572, 608) had no application to
this case, and that subscribers were entitled to
such proportion of their subscriptions as the
total amount unexpended bore to the total
amount subscribed. British Red Cross Balkan
Fund, In re; British Red Cross Society v.
Johnson, 84 L. J. Ch. 79; [1914] 2 Ch. 419;
111 L. T. 1069; 58 S. J. 755; 30 T. L. R. 662
— Astbury, J.
Property Settled by Father on Daughter's
Marriage — No Trusts In Default of Issue —
Bequest by Father on Trusts of Settlement —
Failure of Trusts.] — A father transferred a
sum of stock to the trustees of his daughter's
marriage settlement, to be held as part of
"the trust estate hereby constituted." There
was no declaration of ultimate trusts of the
wife's fund in case of the husband dying
before the wife and there being no child of
the marriage, which events happened. The
wife's father during the lifetime of the husband
and wife made his will, declaring thereby that
his trustees should stand possessed of one-
fourth of his residuary estate, referred to in
his will as his daughter's " share," upon trust
to transfer the same to the trustees of her
settlement, to be held by them upon trusts
by that settlement declared concerning " the
fortune brought into settlement by or on behalf
of " his daughter : — Held, that as regarded
the stock there was a resulting trust (subject
to the life interest of the daughter) in favour
of the father, but that the fourth share of his
residuary estate had been completely severed
from the father's estate and given to the
daughter's trustees for her benefit, and that
there was an ultimate resulting trust of this
share in favour of the daughter. Principles of
Lassence v. Tiemey (1 Mac. & G. 551) applied.
Donnelly's Estate, In re ([1913] 1 Ir. R. 177),
distinguished. Connell's Settlement, In re;
Benett's Will Trusts, In re; Fair v. Connell,
84 L. J. Ch. 601 ; [1915] 1 Ch. 867 ; 113 L. T.
2.34— Sargant, J.
C. THE TRUSTEE.
1. Appointment of New Trustees.
See also Vol. XIV. 551, 2164.
One Cestui que Trust in Disagreement with
Trustees — Scheme for Maintenance Ordered by
Court — Surviving Husband of Other Cestui
que Trust — Appointment of his Solicitor as
Co-trustee — Objection to — Court will not
Declare Invalid.] — An appointment as new
trustee by a surviving trustee of a member of
the firm of solicitors who had acted for the
trustees in a dispute between them and a
cestui que trust is a valid appointment, and
although the Court would not itself make such
an appointment it will not order the removal
of such trustee already appointed. When an
administration order has not been made by
the Court, but certain specific directions only
have been given, such as for a scheme for
maintenance, the sanction of the Court to an
appointment of new trustees is not required.
And the persons having the power of appoint-
ment can exercise that power in the ordinary
way unless the order made is such that the
exercise of the power by the persons entitled
to exercise it will interfere with its being
carried out by the Court. Cotter, In re;
Jennings v. Nye, 84 L. J. Ch. 337; [1915]
1 Ch. 307; 112 L. T. 340: 59 S. J. 177—
Astbury, J.
Stamford (Earl), In re: Payne v. Stamford
(65 L. J. Ch. 134; [1896] 1 Ch. 288), applied.
Skeats, In re; Skeats v. Evans (58 L. J. Ch.
656; 42 Ch. D. 522), Hall. In re; Hall v. Hall
(.54 L. J. Ch. 527). and .itt.-Gen. v. Clack
<1 Beav. 467), distinguished. lb.
Sole Trustee Appointed by Settlor — Right of
Beneficiaries to Appointment of a Second
1641
TEUST AND TRUSTEE.
1642
Trustee — Power Reserved to Settlor to Appoint
Additional Trustee.] — Where, a sole trustee is
orijjinally appointed by a settlor or testator
there is no absolute right in the beneficiaries
to the appointment of a second trustee.
Although in many cases the Court would desire
to secure for the beneficiaries the protection
afforded by a second trustee, there are cases in
which the settlor or testator has deliberately
elected to commit to a single individual the
execution of the trust ; and in such cases the
Court ought to give effect to the intention of
the settlor or testator. Badger, In re; Badger
V. Woolley, 84 L. J. Ch. 567 ; 113 L'. T. 150
—Eve, J.
Appointment of Husband of Tenant for Life
Restrained from Anticipation.] — The donee of
the power of appointing new trustees of a
•will appointed the husband of a tenant for life
entitled for her separate use without power of
anticipation to be a trustee of the will together
with a continuing trustee : — Held, that the
appointment, if undesirable, was not invalid.
Coode, In re; Coode v. Foster, 108 L. T. 94—
Neville, J.
Reference to Chambers to Appoint New
Trustees — Right to Nominate.] — An order
directing a reference to chambers to appoint
new trustees of a will suspends the power
given by the will to appoint new trustees, but
it does not disqualify the donee of the power
from nominating fit and proper persons to
be new trustees, and in the absence of mis-
conduct the Court will appoint the persons
nominated by the donee of the power in
preference to those nominated by other parties
Gadd, In re (52 L. J. Ch. 396; 23 Ch. D. 134),
followed. Sales, In re; Sales v. Sales, 55 S. J.
838— Eve, J.
2. Rights, Powers, Duties and Liabilities.
a. In General.
See also Vol. XIV. 604, 2166.
Discretion to Apportion between Charitable
and Non-charitable Objects.] — When trustees
have a discretion to apportion between
charitable objects and definite and ascertain-
able objects non-charitable, the trust does not
fail, and in default of apportionment by the
trustees the Court will divide the fund equally
between the objects charitable and non-
charitable. Gavacan, In re; O'Meara v.
Att.-Gen., [1913] 1 Ir. R. 276— M.R.
Failure of Object — Direction for Gift Over
— Duty of Trustees.] — An abbey was con-
veyed to trustees for the benefit of a society
or community founded for the advancement
of religion according to the principles of the
Church of England, and the deed provided that
if it should appear to the trustees impractic-
able to carry on the society, they should convey
the property to the English Abbeys Restora-
tion Fund. Subsequently all the members of
the community, except two, acknowledged the
supremacy of the Pope, and were admitted to
the Rxjman Catholic Church. A meeting of
the trustees resolved to give effect to the gift
over, and two of them applied to the Court for
directions as to whether they ought to join in
executing the deed of conveyance : — Held, that
in the circumstances they must join in
executing the deed. Mailing Abbey Trusts,
In re; Beaumont v. Dale, 31 T. L. R. 397
-C.A.
Decision of Eve, J. (30 T. L. R. 71),
affirmed. 7b.
Different Wills — Maintenance of Legatee —
Discretionary Power under Each Will — Right
of Contribution.] — With respect to the exer-
cise by trustees of discretionary powers in
respect of the same legatee conferred by
different wills, of which the trustees and trusts
are different, there can be no right of equit-
able contribution between the several sets of
trustees, there being no common obligation
between them. Smith v. Cock, 80 L. J.
P.C. 98; [1911] A.C. 317; 104 L. T. 1— P.C.
Under a testator's will the trustees had
discretionary power to pay an annuity not
exceeding a certain amount on trust for a
daughter of the testator. There was a similar
trust under the will of another daughter, on
whose death the amount paid under the first
trust was largely reduced. The two sets of
trustees and the trusts in the two wills were
distinct. In a suit (in which the common
legatee took no part) for contribution by a
beneficiary under the second will against the
trustees of the first, — Held, that, there being
no common obligation, there was no right of
equitable contribution between the two sets
of trustees. lb.
Fire Insurance — Trust of Mansion House,
Buildings, and Farms — Tenant for Life and
Remaindermen — " Necessary expenses."] ^A
testator devised his mansion house, outbuild-
ings, and farms in W. to three trustees upon
trust " after payment thereout of all necessary
expenses," to pay the balance of the rents and
profits to his widow for life, and then to his
son for life with remainders over. The widow
and the son were two of the testator's
executors and trustees. The premises were
insured against fire at the testator's death for
nmch less than their value. On an originat-
ing summons by the third trustee against the
first tenant for life and remainder asking
the direction of the Court as to adequately
insuring the devised premises out of income, —
Held (but without deciding anything as to
whether the trustees ought to insure the pre-
mises at the expense of the testator's estate
generally), that neither under the trusts of the
will as coming under the head of " necessary
expenses," nor as a statutory obligation under
section 18, sub-section 1 of the Trustee Act,
1893, ought the trustees to maintain the fire
insurance ujx)n the premises devised in trust
at the expense of the tenant for life.
McEacharn. In re: Gambles v. McEacharn,
103 L. T. 900; 55 S. J. 204— Eve. J.
Covenant " as such trustees but not other-
wise " — Extent of Liability.] — Per
Buckley, l.,.J. : A covenant by trustees " as
such trustees but not otherwise " to repay a
loan is merely a covenant to repay the money
out of any trust funds coming into their
1643
TRUST AND TRUSTEE.
1644
hands, and does not impose any personal
liability upon them. Robinson's Settlement,
In re; Gant v. Hobbs, 81 L. J. Ch. 393;
[1912] 1 Ch. 717; 106 L. T. 443; 28 T. L. K.
298— C. A.
Purchase of Trust Property by Wife of
Trustee.] — There is no absolute rule of law
that the purchase of trust property by the
wife of a trustee is illegal. Burrell v. Burrell's
Trustees, [1915] S. C. 383— Ct. of Sess.
Defaulting Trustee — Liability to Make Good
Default before Taking Share in Fund— Share
in Different Fund Held on Different Trusts
under Same Instrument — Right to Retain.] —
The principle — stated in Doering v. Doering
(58 L. J. Ch. 553; 42 Ch. D. 203)— that a
defaulting trustee and his assignees cannot
take a share in a trust fund without making
good to it the amount in respect of which he
is in default does not apply to his interest in
another fund under the same instrument in
which the parties as against whom he is in
default have no interest, and in regard to
which he is not in default : — Held, there-
fore, that the assignees of a specific legacy
bequeathed to a trustee were entitled to retain
it in the administration of the estate although
the trustee had misappropriated part of the
residuary estate. Toicndroio, In re: Gratton
V. Machen, 80 L. J. Ch. 378; [1911] 1 Ch.
662; 104 L. T. 534— Parker, J.
Legacy — Set-off.] — Where a trustee mis-
appropriated trust funds, and paid them into
his own account at his bank : — Held, that his
co-trustee, when he discovered the misappro-
priation, could follow the trust funds, and that
he had a charge on the defaulting trustee's
balance at his bank: — Held, also, that the
co-trustee could retain or set off against the
misappropriated trust money such part of the
legacy as devolved by derivative title benefi-
cially on the defaulting trustee. The principle
of Jacubs V. Rylance (43 L. J. Ch. 280; L. E.
17 Eq. 341) or the principle of Cherry v.
Boultbee (7 L. J. Ch. 178 ; 4 Myl. & Cr. 442)
applied. Dacre, In re; Whitaker v. Dacre,
[1915] 2 Ch. 480; 60 S. J. 44— Sargant, J.
b. Management.
See also Vol. XIV. 607. 2170.
Tenant for Life — Remainderman — Repairs
— Leasehold and Freehold Properties — Lia-
bility of Corpus or Income for Repairs.] — The
tenant for life is only liable to keep leasehold
properties in such a state of repair as they
were in when he became tenant for life on the
death of the settlor, and accordingly the
trustees of the property should, at the date
of the death of the settlor, do all repairs
necessary to put the property in a proper state
of repair, to satisfy the covenants in tlie leases,
and pay the same out of the corpus of the
estate. Repairs to freeholds must be borne
by the corpus. Sutton, In re; Sutton v.
Sutton, 56 S. J. 650— Neville, J.
c. Power of Leasing.
See also Vol. XIV. 621, 2172.
Power to Grant Mining Leases — Unopened
Mine.] — A testator gave power to the trustees
of his will to let from year to year, or for
a term of years, his real or leasehold property
at such rent and subject to such conditions
as they should think fit, and to accept the
surrender of leases and tenancies, to expend
money on improvements, and generally to
manage the property according to their ab.so-
lute discretion. There were opened and
unopened mines on the estate : — Held, that the
trustees had no power to grant leases of un-
opened mines. Harter, In re ; Harter v.
Harter, 57 S. J. 444— Warrington, J.
d. Powers of and Trusts for Sale.
See also Vol. XIV. 625, 2173.
Trust for Sale — Power to Postpone Conver-
sion— Share Vested in Possession — Personal
Property — Right of Beneficiary to Immediate
Sale and Division.] — A testator gave the
residue of his personal estate to trustees upon
trust for sale and conversion, and to stand
possessed of the proceeds of sale in certain
shares for his sons and daughters. The will
contained a power to the trustees in their
uncontrolled discretion to postpone sale and
conversion. Some of the shares were settled
upon trusts which were still subsisting.
Beneficiaries who were absolutely entitled to
other shares in the estate requested the
trustees to transfer to them, in satisfaction of
their shares, certain of the shares in a limited
company which represented the residue of the
estate retained by the trustees. This request
was opposed on the ground that it was desir-
able that the shares should be retained by
the trustees in the exercicse of their discretion
to postpone conversion until the ultimate
division of the estate, so that in the interest
of all the beneficiaries they might exercise
the voting power in respect of these shares in
the management of the company's affairs : —
Held, that in the absence of special circum-
stances a person absolutely entitled to an
undivided share of personal property vested in
trustees may call for immediate payment or
transfer of his share, and that the power to
postpone conversion in the will did not entitle
the trustees to refuse to transfer their shares
to persons absolutely entitled. Marshall, In
re: Marshall v. Marshall. 83 L. J. Ch. 307;
[1914] 1 Ch. 192 ; 109 L. T. 835 ; 58 S. J. 118 ;
— C.A.
Unauthorised Investments — Leaseholds —
" Absolute discretion " of Trustees — Appro-
priation in Specie — Approval by Parties —
Leave of Court.] — By an ante-nuptial settle-
ment dated March 25, 1887, a husband
assigned leasehold property to trustees upon
trust to sell as and when they in their abso-
lute discretion should think fit and to apply
the income of the proceeds upon such trusts
(after life interests) for his children as he
should by deed or will appoint ; the invest-
ment clause enabled the trustees to invest
(inter alia) in leaseholds for a term of not
less than sixty years unexpired at the date
of the investment. There was no express
power to retain the original investments, nor
any express power of appropriation. The
husband died in August, 1898, having by his
1645
TRUST AND TRUSTEE.
1646
will appointed a one-seventh share of the
settled property on trusts in favour of one of
his sons for life, with remainders over. The
residue he appointed among his other children.
The trustees had retained the leaseholds on
account of the difficulty in selling, and in 1913
proposed to appropriate three leasehold pro-
perties to satisfy the settled share. One of
these leaseholds was for a term of forty-six
years only, unexpired, and another was sub-
ject to a mortgage. The persons entitled in
remainder in default of children of the
son were all sui juris and approved of the
proposed appropriation : — Held, that the Court
had power to sanction the appropriation.
Cooke's Settlement, In re: Tarry v. Cooke,
83 L. J. Ch. 76; [1913] 2 Ch. 661; 109 L. T.
705; 58 S. J. 67— Astbury, J.
Brooks, In re; Coles v. Davis (76 L. T. 771),
followed. Observations of Buckley, J., in
Beverly, In re; Watson v. Watson (70 L. J.
Ch. 295), at p. 299; [1901] 1 Ch. 681, at
p. 688), considered. 76.
Appropriation of Shares — Unauthorised
Investments.] — Where by a will the shares of
the estate of the daughters of the testator are
settled, and the trustees are given an absolute
power to convert followed by a power to delay
realisation, the trustees have not power to
hold as part of the settled shares shares in a
private company which are not investments
authorised by the trust for investment con-
tained in the will. Beverly, In re; Watson v.
Watson (70 L. J. Ch. 295; [1901] 1 Ch. 681),
followed. Brooks, In re; Coles v. Davis
76 L. T. 771), and Eraser v. Murdoch (6 App.
Gas. 855) distinguished. Craven, In re;
Watson V. Craven, 83 L. J. Ch. 403; [1914]
1 Ch. 358; 109 L. T. 846; 58 S. J. 138—
Warrington, J.
Power to Postpone Sale — Share of Estate
Vested in Beneficiary — Real and Leasehold
Property — Right of Beneficiary to Immediate
Sale and Payment of Share in Gash, or to
Appropriation of Share in Specie.] — A testator
by his will gave his real and personal estate
to trustees upon trust to sell and, after pay-
ment of his debts and legacies, to hold the
residue of the proceeds upon the trusts therein
declared, provided tliat the trustees might in
their absolute and uncontrolled discretion post-
pone the sale of the estate or any part thereof
for such time as they should think lit without
being answerable for loss ; and he declared
that until sale the income arising from such
part of his residuary estate as should remain
unsold should be paid upon the trusts and to
the persons to whom the income arising from
the investment (jf the prw^eeds of sale would
have been payable ; and he declared {inter
alia) that the trustees should stand possessed
of the moneys to arise from the sale of his
residuary estate upon trust, subject to an
annuity to his widow, for all his children who
should attain the age of twenty-one, and if
more than one in equal shares as tenants in
common. The testator having died and one of
his children having attained twenty-one and
thus attained a vested interest in a share of
the residue, the tnistees took out an originat-
ing summons to determine whether, notwith-
standing the discretionary power given to the
trustees to postpone the sale of the estate, that
beneficiary was entitled to require a sale of
the estate and payment of his share in cash,
or an appropriation of his share in specie.
The estate consisted principally of freehold
and leasehold property : — Held, that so long
as the trustees in the bona fide exercise of
their discretion deemed it advisable to post-
pone a sale, the beneficiary was not entitled
to call for either a sale and payment of his
share, or an appropriation of his share in
specie. Horsnaill, In re; Womersley v.
Horsnaill (78 L. J. Ch. 331; [1909] 1 Ch.
631), approved and followed. Kipping, In re;
Kipping v. Kipping, 83 L. J. Ch. 218; [1914]
1 Ch. 62 ; 109 L. T. 919— C.A.
Sale — Trustees Described as "my said
executors."] — A testator appointed A, B, C,
and D to be executors and trustees of his will,
and bequeathed the residue of his freehold and
personal property " in trust to my executors
aforesaid," and authorised and empowered
" my said executors " to sell any real property
which they might think advisable, and divide
the residue in such proportions as they or the
survivor or survivors of them might think fit
among certain persons. A and B renounced the
executorship and predeceased D ; C renounced
the executorship, and disclaimed by deed the
trusts of the will. D, who alone acted in the
trusts of the will, in exercise of his statutory
power appointed the plaintiff and E (since
deceased) trustees of the will in his place : —
Held, that the expression "my said executors"
was merely a compendious form of designating
" executors and trustees," and that the power
of sale could be exercised by the plaintiff, the
trustee for the time being. Robinson. In re;
Sproule V. Sproule, [1912] 1 Ir. E. 410— M.E.
e. Investment of Trust Funds.
See also Vol. XIV. 658, 2179.
Trust to Invest in "Public stocks" and on
no Other Investment.] — A testator, by his
will dated 1868, directed his trustees to invest
the trust funds in " some or one of the public
stocks of the Bank of England and on no
other investment whatsoever " : — Held, that
the trustees could only invest in public stocks,
and that the expression '" public stocks " was
confined to public stocks forming part of the
National Debt of this country. Hewitt v.
Price (11 L. J. C.P. 292; 4 Man. & G. 355)
followed. Hill, In re; Fettes v. Hill, 58 S. J.
399— Eve, J.
Power to Invest in Stocks of any British
Colony or Dependency — Stocks Issued by Pro-
vinces of Canada — "Colony or dependency."]
— A power for trustees to invest capital money
in any stock or securities of " any British
colony or dependency " does not justify an
investment in stocks issued by individual
provinces of the Dominion of Canada.
Maryon-Wilson's Estate, In re, 81 L. J. Cii.
73; [1912] 1 Ch. 55; 105 L. T. 692;
28 T. L. R. 49— C.A.
Decision of Eve, J. (80 L. J. Ch. 467 ;
[1911] 2 Ch. 58). affirmed. 76.
1647
TEUST AND TRUSTEE.
1648
Power to Invest in Preference Stock — Pre-
ference Shares.] — The testator enipowered his
trustees to invest the trust funds (ivter alia)
preference stock of any company in the
United Kingdom : — Held, that this did not
authorise the trustees to invest in fully paid-
up preference shares. Willis, In re: Speyicer
V. Willis, 81 L. J. Ch. 8: [1911] 2 Ch. 563;
105 L. T. 295; 55 S. J. 598— Eve, J.
Power to Invest " as they should think
desirable, but not in the British Funds " —
Purchase of Freeholds.] — A will contained the
following investment clause : " My trustees
being at liberty to sell all my ships, houses,
and other property of mine, and ' invest ' same
as they think most desirable, but not in the
British funds, my trustees to be free from all
liability in investing any of the money received
for the sale of any of my property " : — Held,
that the above clause authorised the trustees
to invest the proceeds of sale in the purchase
of freehold lands in England and Ireland.
O'Connor, In re; Grace V. Walsh. [1913]
1 Ir. E. 69— M.R.
Power to Retain — " Meaning of " Invest-
ments " — Money on Deposit with Industrial
Firm.] — A testator by his will declared that
any moneys liable to be invested under this
my will may remain invested as at my
death." The testator's estate included a sum
of 2,900Z. on deposit with an industrial firm
in whose employment the testator had been for
many years : — Held, that the money could not
be treated as " invested," and consequently
the trustees could not allow the same to
remain on such deposit. Sudloio, In re ; Smith
V. Sudlow, 59 S. J. 162— Eve, J.
Investment on Authorised Security — Juris-
diction to Enquire into Propriety of Retaining
Investments.] — The Court has jurisdiction
under Order LV. rule 3, without directing the
execution of trusts, to give directions as to
particular things which are to be done in their
administration, and can therefore direct an
enquiry whether it is for the benefit of the
cestuis que trust that investments on autho-
rised securities made by the trustees should
be continued, or whether they ought to be
called in. D'Epinoix's Settlement, In re;
D'Epinoix v. Fettes. 83 L. J. Ch. 656; [1914]
1 Ch. 890; 110 L. T. 808; 58 S. J. 454—
Warrington, J.
Power to Invest on Leasehold Security —
Advances on Under-leases.] — While a power
to invest on leasehold securities may in some
cases authorise trustees to advance money on
under-leases, trustees proposing to make such
an advance ought to consider very seriously
whether the investment is a prudent one, in
view of their inability to control the acts and
defaults of the original lessee. 76.
Discretion — Retention of Investments —
Loss.] — Trustees who have a trust for sale
and conversion with powers at their discretion
to postpone conversion and to retain existing
investments, are not under any duty to make
or preserve evidence that they have exercised
such discretion. The assumption is, if they
postpone conversion and retain existing invest-
ments, that they have properly exercised their
discretion. Observations on the duties of
trustees with respect to the retention of
investments. Oddy, In re; Connell v. Oddy,
104 L. T. 128— Joyce, J.
Purchase of Land by Trustees by Way of
Investment — Absence of Express Power to
Yary Investments — Implied Power.] — The
power of investment ordinarily given to
trustees of a settlement implies a power to
varj' investments ; and trustees of a settle-
ment with power to purchase freehold or lease-
hold property for the personal use or occupation
of the tenant for life have an implied power
to sell the same. Cooper's Trusts, In re.
([1873] W. N. 87), followed. Pope and
Easte's Contract, In re, 80 L. J. Ch. 692;
[1911] 2 Ch. 442; 105 L. T. 370— Neville, J.
Advance of Trust Money on Mortgage —
Valuing Security — Right of Trustee to Assume
that Valuer will Satisfy Himself of Necessary
Facts.] — Section 8, sub-section 1 of the
Trustee Act, 1893, justifies trustees who are
proposing to advance trust money on mort-
gage in assuming that the valuer whose duty
it is to advise them will satisfy himself of
the facts as to the property on which it is
proposed to make the advance which are
necessary to the making of a satisfactory
valuation, and relieves them of the liability
to make enquiries themselves regarding the
personality of the mortgagor and the details
concerning the property. Observations of
Parker, J., in Shaw v. Cates (78 L. J. Ch.
226; [1909] 1 Ch. 389) approved. Solomon.
In re; Nore v. Meyer, 81 L. J. Ch. 169;
[1912] 1 Ch. 261; 105 L. T. 951; 56 S. J.
109; 28 T. L. R. 84— Warrington, J. Appeal
compromised, 82 L. J. Ch. 160; [1913] 1 Ch.
200; 108 L. T. 87— C. A.
Property Let on Weekly Tenancies —
Right to make Advance on.] — There is no rule
precluding trustees from lending trust money
on the security of property let on weekly
tenancies. The question is in every case one
of the amount which may safely be advanced.
lb.
Instructing and Employing Valuer " in-
dependently of any owner of the property."] —
If the relation of employer and employed exists
between the trustee and the valuer, and be-
tween them only, in regard to the proposed
advance, the valuer being entitled to look for
his remuneration to the trustees and being
responsible to him alone for the due perform-
ance of his duty as valuer, the valuer is
" instructed and employed independently of
any owner of the property " within the mean-
ing of sub-section 1, and the trustee is not
bound to enquire whether he has at any time
advised or acted for the mortgagor. lb.
Duty of Valuer to Consider Proportion
which may be Advanced Independently of
"Two-thirds" Rule.] — It is the duty of a
valuer acting for trustees to consider not only
the value of the property, but the proportion
which in his opinion as an expert and a prac-
1649
TEUST AND TKUSTEE.
1650
tical man the trustees would in each particular
case be justified in advancing, independently
of any supposed rule relating to two-thirds of
the value ; though if he advises that the
trustees may safely advance two-thirds, and no
more, they are justified in acting on his report.
lb.
Making Advance " under the advice of
the surveyor or valuer expressed in the
report."] — It is not necessary for a surveyor
or valuer expressly to advise trustees to
advance a particular sum. If he is instructed
to survey a property and report on its value
and the amount which the trustees can advance
on it. and states in his report what he con-
siders to be the value, and that the property
forms a sufficient security for the proposed
advance, the trustees in making the advance
are making it " under the advice of the
surveyor or valuer expressed in the report. "
within the meaning of the sub-section. lb.
Mortgage — Trade Buildings — Valuation
- Two-thirds or One-half — Old Valuation —
Depreciation.] — There is no rule that in all
cases where a portion of the premises, or even
a chief portion, is used for business purposes,
trustees are guilty of a breach of trust in
advancing more than a moiety of the valua-
tion. If the security is really a business plus
the premises, the trustees are well advised in
having nothing to do with it ; and if they are
so inseparable that the discontinuance of the
business must or may depreciate the premises,
then the trustees ought not to advance more
than one-half. But where there is a freehold
property situate in a busy thoroughfare
adaptable for various kinds of business, there
is no rule that trustees are limited to advanc-
ing only a moiety. Palmer v. Emerson,
80 L. J. Ch. 418 ; [1911] 1 Ch. 758 : 104 L. T.
557; 55 S. J. 865; 27 T. L. 320— Eve. J.
Breach of Trust — Acting Reasonably —
Relief.]— Section 8 of the Trustee Act, 1893,
is a relieving section, and does not impose on
trustees a statutory obligation to take a valua-
tion. Accordingly, where trustees advanced
money on mortgage without a valuation made
for the purpose, but relied on a valuation
made some two years previously, and the
security proved insufficient, — Held, that the
trustees had not committed a breach of trust ;
but even if they had, they ought to be excused
under the Judicial Trustees Act, 1896, s. 3.
lb.
Unauthorised Investment — Dual Position
of Tenant for Life and Trustee — Restoration
of Capital vrith Interest — Claim to Excess of
Interest.] — A tenant for life is not liable to
make goods to the capital fund any excess of
interest which he obtains from unauthorised
investments, provided the capital fund is not
diminished by reason of such investments ; and
tliis principle holds good even though the
t.pnant for life may happen to be also a trustee.
Hnylea. In re: Row v. Jaqg f.Vo. 2), 81 L. J.
Ch. 163; [1912] 1 Ch. 67; 1(15 L. T. 663;
66 S. J. 110— Swinfen Eady, J.
3. Indemnity.
See also Vol. XIV. 714, 2185.
Cestui que Trust Lease to Trustee — Assign-
ment of Beneficial Interest v?ith Trustee's
Concurrence — Continuing Liability of Original
Cestui que Trust.] — A cestui que trust, who
is also the maker of the trust, is personally
liable to indenmify the trustee against any loss
accruing in the proper execution of the trust i
and this liability continues after the cestui que
trust has assigned his beneficial interest in the
trust property to another person. Matthews v.
Ruggles Brise. 80 L. J. Ch. 42; [1911] 1 Ch.
194; 103 L. T. 491— Swinfen Eady, J.
Two partners, C. and M., accepted a lease
at the request of all the partners and in trust
for the partnership. Subsequently the part-
ners agreed to sell the partnership assets and
liabilities to a company. By the agreement,
the company covenanted to indemnify the
partners and partnership against the liabilities
and to take all reasonable steps to effect a
novation to the company of these liabilities ;
and each of the partners covenanted to execute
and do any necessary document or thing for
vesting the assets of the partnership in the
company. C. died and M. subsequently as-
signed to the company at their request the
lease and also certain freehold property com-
prised in the agreement. Some years after-
wards the company became insolvent, and the
lessor sued the present plaintiffs, as executors
of M., the surviving lessee, for arrears of rent
and damages for breach of covenant. The
plaintiffs settled the action by payment of a
lump sum to cover their existing and future
liabilities under the lease. They then sued
C.'s executors for contribution in proportion
to C.'s share in the partnership. The defen-
dant's contended that the company's liability
to indemnify the lessees had been in substitu-
tion for the partners' liability; and. alter-
natively, that M. had forfeited his right to
contribution by failing to retain part of the
freehold property by way of indemnity against
future liability under the lease : — Held, that
the plaintiffs were entitled to contribution,
for there had been no novation of the lessee's
right to indemnity in respect of the liability
under the lease, and M. could not have retained
part of the freehold property by way of
indemnity without a breach of the agreement
entered into bj' all the partners. lb.
4. Liability op- Trustees for Bre.\ch of
Trust.
See also Vol. XIV. 746, 2191.
Solicitor Authorised to Receive Trust Money
by Having Custody of Deed Containing Re-
ceipt— Misappropriation — Permitting Money to
Remain in Solicitor's Hands for Unnecessary
Time — Knowledge of Trustee of Receipt by
Solicitor — Liability for Loss.] — Subsection 3
of section 17 of the Trustee Act, 1893, docs not
render a trustee liable for permitting trust
money to remain for an unnecessary time in
the hands or under the control of a solicitor
whom the trustee has appointed, under sub-
section 1, as his agent to receive it, by per-
1651
TRUST AND TRUSTEE.
1652
mitting him to have the custody of a deed
containing a receipt, unless the trustee knows,
or ought to have known, that the solicitor has
received the money. Sheppard, In re; De
Brimont v. Harvey, 80 L. J. Ch. 52; [1911]
1 Ch. 50 ; 103 L. T. 424 ; 55 S. J. 13— Parker, J.
A fund, of which H. and another were the
trustees, was invested on a mortgage which
was about to be paid off. Both trustees
executed, and delivered to B., the solicitor to
the trust, a deed of reconveyance containing
a receipt for the mortgage money. The other
trustee died three days later. During the
following four months H. frequently asked B.
whether he had received the money, and B.
replied that he had not. B., without H.'s
knowledge, was in fact selling the property in
lots on the mortgagors" behalf, using the recon-
veyance, which he retained, to make out a
title, and receiving from time to time and mis-
appropriating the purchase money, so that the
greater part of the fund was lost. B. had
previously been solicitor to a second trust, the
S. trust, of which H. was a trustee, and H.'s
co-trustees, owing to their dissatisfaction with
B.'s conduct in matters connected with that
trust, had insisted on employing another
solicitor in his place. It was not contended
that the authority conferred on B. by the
delivery of the reconveyance to him was
revoked by the death of the other trustee of
the mortgage money, or that it did not
empower B. to receive that money in
instalments : — Held, on that assumption, and
treating H. as if he had been a sole trustee,
that on the evidence he might reasonably con-
tinue to believe in B.'s honesty, notwithstand-
ing the circumstances connected with the S.
trust ; that since H. had no means of checking
B.'s statements regarding the non-receipt of
the money except by asking to see the deeds,
which were in B.'s possession, notice of the
receipt of it by B. ought not to be imputed to
him ; that he was justified in not revoking B.'s
authority to receive the money by withdrawing
the reconveyance from B.'s custody; and that
he had not been guilty of anv breach of trust.
lb.
Mortgage Securities — Depreciation — Distri-
bution of Trust Property — Appropriation of
Valueless Security to Settled Share — No
Valuation — Negligence — Breach of Trust,] — A
trustee with an estate in possession divisible
between two beneficiaries handed over the
valuable portion to one beneficiary and retained
the remainder without enquiring whether it
was sufficient to satisfy the other share. The
property retained was valueless : — Held, that
the trustee ought to have enquired as to the
value of the securities at the date of the dis-
tribution, and th;it, not having done so, he was
liable for breach of trust and could not claim
the protection of the Judicial Trustees Act,
1896, s. 3. Brookes, hire ; Brookes v. Taylor,
83 L. J. Ch. 424; [1914] 1 Ch. 558; 110 L. T.
691; 58 S. J. 286— Astbury, J.
Unauthorised Investment — Payment of In-
terest by Trustee to Himself as Tenant for
Life-— Right of Tenant for Life to Retain
Excess of Interest.] — A trustee, who was also
tenant for life, invested the trust estate in
unauthorised investments. No loss had re-
sulted to the trust estate by reason of this
proceeding : — Held, that the tenant for life
(notwithstanding the fact that she was also
trustee) was not bound to account to the trust
estate for the excess received by her as interest
from the unauthorised investments above and
beyond the interest that she would anyhow
have received had the trust estate been pro-
perly invested. Hoyles, In re; Row v. Jagg
{No. 2), 81 L. J. Ch. 163; [1912] 1 Ch. 67;
105 L. T. 663; 56 S. J. 110— Swinfen Eady, J.
5. Liability for Agents Employed by
Trustees.
See also Vol. XIV. 797, 2198.
Payment of Duty — Cheque Payable to Soli-
citor — Misappropriation — Will — Power to
Employ Agents — Relief.] — By his will, the
testator empowered his ti'ustees and executors
to employ agents to act for them, and declared
that they should be indemnified out of the trust
estate against the acts and omissions of such
agents. One of the trustees, who was a
solicitor, died, and the remaining trustee em-
ployed another solicitor to act for the estate.
During the winding up of the estate the trustee
gave the solicitor cheques payable to himself
for payment of duties. The solicitor mis-
appropriated the proceeds of the cheques. In
an action to make the trustee liable for the
sums so lost to the estate, — Held, that under
the terms of the will the trustee was justified
in believing that he might pay the duties
through a solicitor, and that, as he had acted
honestly and reasonably, he was entitled to
relief under section 3 of the Judicial Trustees
Act, 1896. Mackay, In re; Griessemann v.
Carr, 80 L. J. Ch. 237; [1911] 1 Ch. 800;
103 L. T. 755— Parker, J.
D. THE CESTUI QUE TEUST.
See also Vol. XIV. 818, 2199.
Laches or Acquiescence of Beneficiary.] —
An annuitant is not guilty of such laches as
would disentitle her to recover arrears of her
annuity merely on the ground that she has not
actively enforced the performance of the duty
of the trustees to pay her such annuity
regularly. Rix, In re; Rix v. Rix, 56 S. J.
573— Neville, J.
Liability of Trustee.] — Trustees are ap-
pointed for the protection of their cestuis que
trust, and so long as they remain trustees they
are responsible for their dutes as such. 75.
E. ACTIONS BY AND AGAINST TRUS-
TEES—STATUTE OF LIMITATIONS.
See also Vol. XIV. 862, 2204.
Personal Liability — Compromise on Advice
of Law Agent — Duty to Make Annuities Real
Burden on the Estate.] — A testator whose
assets consisted of heritable and personal pro-
perty used in his business by trust disposition
and settlement disinherited the children of his
first marriage and his daughter by his second
1653
TEUST AND TKUSTEE.
1654
marriage, leaving them nothing whatever, and
directed his trustees to pay to his wife an
annuity of 300/. per annum during her life,
and an annuity of 2001. to his son John and
Helen his wife during their lives, and to
convey to his son George the whole residue
of his estate, " but always with and under
the burden of the life rent to my said wife
of my properties in Glasgow and Girvan and
also under burden of the payment of the
annuities to my said wife and to my son and
his wife." The disinherited children upon the
death of the testator threatened to take legal
proceedings to set aside his disposition on
the ground of want of capacity and undue
influence, and also claimed to recover their
legitim share of his assets. The trustees (one
of whom was the appellant), acting on the
advice of a law agent of high standing and
acknowledged character in the profession,
compromised the claims, and borrowed the
sum required to carry out the compromise on
the security of the heritable estate. They also
allowed the son George to take possession of
the business without making the annuities to
the son John and his wife primary real burdens
on the heritable subjects. After a few years
the business failed, and there was not
sufficient to pay the annuitants : — Held, that
the appellant was not liable for breach of
trust, for there was no proof that he and his
co-trustees in agreeing to and carrying out
the compromise had been guiltv of negligence.
Eaton V. Buchanan, [1911] A.C. 253—
H.L. (Sc.)
Outstanding Debts — No Steps to Require
Payment.] — Trustees directed by the will of a
testator who died in May, 1896, to convert
and invest his estate, having allowed a sum
lent by the testator and a debt due in respect
of the sale of part of the testator's assets
to remain uncollected and without action
brought until 1903, the debtor being a direc-
tor of an important company and possessed of
house and share property, held liable for the
consequent loss, the Court not being satisfied
that no loss had accrued to the testator's
estate from the neglect by the trustees of their
duty. Dictum of Sir J. Romilly. M.R., in
Clack V. Holland (24 L. J. Ch. 13; 19 Beav.
262, 271), applied. Greenwood, In re; Green-
woody. Firth, 105 L. T. 509— Eve, J.
The concluding words of section 21, sub-
section 2 of the Trustee Act, 1893 (56 &
57 Vict. c. 53), involve the exercise of active
discretion on the part of the trustees allowing
time for payment and not the mere passive
attitude of leaving matters alone. Ih.
Release by Beneficiary — Acting Reasonably
— Relief.] — Loss which has arisen from care-
lessness or supineness of the trustee is
altogether outside the sub-section. A bene-
ficiary gave executors a receipt for a share
of the estate " as shown by the executors'
books " and accounts : — Held, that the receipt
was not a release to them in respect of the
balance of debts due to the testator's estate
then remaining uncollected, and further, that,
in the circumstances, the trustees, having
allowed the matter of calling in the debts to
drift for six years, had not acted reasonably
and were not entitled to be relieved under
section 3 of the Judicial Trustees Act, 1896.
lb.
Statute of Limitations.] — Where a policy-
holder surrendered his policy to the insurance
company on the terms that the amount paid to
him for the surrender should be invested in
shares of the company, — Held, that this was a
conversion within section 8, sub-section 1 of
the Trustee Act, 1888, which would prevent
the policy-holder, a director, from setting up
the Statute of Limitations as a defence.
Irish Provident Assurance Co., In re, [1913]
1 Ir. R. 352— Palles, C.B.
Payment on Erroneous Construction of
Will — Acting on Advice of Solicitor — Relief
from Liability.'' — The defence afforded to a
trustee by the Trustee Act, 1888. s. 8, in a
case where he is sued in respect of a breach of
trust committed more than six years before
action brought, arises under clause (b) and
not clause (a) of sub-section 1 of section 8 of
the Act, and the proviso to clause (b) renders
the defence of no avail where the interest of
the person claiming in respect of the breach
of trust only vested in possession less than six
years before action brought. Cases to which
clause (a) applies discussed. Semble. that the
proviso to clause (b) also applies to clause (a).
Allsop, In re; Whittaker v. Bamford, 83 L. J.
Ch. 42; [1914] 1 Ch. 1; 109 L. T. 641;
58 S. J. 9; 30 T. L. R. 18— C. A.
The jurisdiction conferred on the Court by
section 3 of the Judicial Trustees Act, 1896,
enabling it to relieve a trustee from personal
liability in respect of " any breach of trust "
where the trustee " has acted honestly and
reasonably and ought fairly to be excused "
applies to the case of a trustee who has dis-
tributed an estate on an erroneous construction
of a will. Where, therefore, by an innocent
mistake the trustee of a small estate acted on
the advice of his solicitor and distributed the
income of a share of the estate instead of
accumulating it owing to an erroneous con-
struction of an obscure provision of a will, the
Court exercised its discretion by relieving him
from personal liability under the section. lb.
Kay, In re; Mosley v. Keyworth (or Kay)
(66 L. J. Ch. 759; [1897] 2 Ch. 518), applied.
Dictum of Parker, J., in Mackay, In re;
Griessemann v. Carr (80 L. J. Ch. 237, at
p. 240; [1911] 1 Ch. 300, at p. 307), approved.
The general principles laid down by Keke-
wich, J., in Davis v. Hutchings (76 L. J.
Ch. 272 ; [1907] 1 Ch. 356), disapproved. lb.
Money Paid by Trustee to Wrong Person
Recovery by Beneficiary whose Money Paid
Away— Lapse of Time.^— From 1886 to 1900
the trustee of an animity paid it to a person
who w-as thought by both to be, but who
afterwards proved not to have been, entitled
to it. The person who was entitled to it
having established his title in 1909, and died,
his executrix brought an action against the
executor of the person who had been wrongly
paid to recover the money. The trustee was
not a party to the action : — Held, that the
action being in substance a common law
demand for money had and received, the
1655
TRUST AND TRUSTEE.
1656
Limitation Act. 1623, applied, and the claim
was barred by the lapse of six years. Harris
V Harris {No. 2) (29 Beav. liO) explained.
Robinson, In re; McLaren v. Robinson,
80 L. J. Ch. 381 ; [1911] 1 Ch. 502 ; 104 L. T.
331; 55 S. J. 271— Warrington, J.
F. FOLLOWING TEUST PROPERTY.
See also Vol. XIV. 895, 2207.
Company — Liquidation — Assets — Order to
Purchase Stock.] — Where a lady sent money
to a financial firm to be invested by them in
an American concern, and, the stock being
short, they paid her money into a special
account at a bank, in the joint names of the
directors of the firm, to await the time when
the stock should be delivered ; and subsequently
a liquidator of the firm was appointed, and
when the stock was delivered the bank applied
the money in taking it up : — Held, that the
payment into the bank was a clear method of
providing for the purchase of the stock, and
that the firm were trustees for the lady, who
was accordingly entitled to the stock. Chaplin.
Milne, Grenfefl <l Co., In re (No. 1), 59 S. J.
250— Neville, J.
Banking Account — Trust Funds Mixed with
Private Moneys — Charge on Balance of Pri-
vate General Account for Trust Funds.] —
W. bought the business of the plaintiff com-
pany and agreed to get in certain debts of
the business and pay them over to the plaintiff
company. W. paid into his private general
account a sum of 455L, part of the debts which
he had so collected. Two days after paying in
this sum he had drawn all the money out of
the account with the exception of a sum of
251. IBs., and applied it for his own purposes.
Subsequently, he operated on the account in
the ordinary way, paying in and drawing out
from time to time. On his death there was a
credit balance on the account of 3581., which
moneys were now in the hands of the defen-
dant, who was a trustee of W.'s property under
an administration order in bankruptcy. The
plaintiff company claimed a charge on this
amount : — Held, that, although W. was a
trustee for the company of the 455i., it was
not possible for the mere fact of the payment
by him of further moneys into this private
general account to impart to him the intention
of clothing such moneys with a trust in favour
of the plaintiff company, and accordingly the
only part of this balance of 3581. which could
be taken by the plaintiff company was the sum
of 251. 18s., that being the smallest amount
to which the balance had fallen between the
date of payment in of the 455Z. and the death
of the debtor, and being the only sum which
could be earmarked as the proceeds of the
book debts. Hallett's Estate, In re: Knatch-
bull V. Hallett (49 L. .J. Ch. 415: 13 Ch. D.
696). distinguished. Roscoe (Bolton). Lim. v.
Winder. 84 L. J. Ch. 286; [1915] 1 Ch. 62;
112 L. T. 121: [1915] H. B. R. 61; 59 S. J.
105— Sargant. J.
Where a trustee had misappropriated trust
funds, and paid them into his own
account at his bank, it was held that his
co-trustee, when he discovered the misappro-
priation, could follow the trust funds, and had
a charge on the balance of the defaulting
trustee at his bank. Hallett's Estate. In re:
Knatchbull v. Hallett (49 L. J. Ch. 415:
13 Ch. D. 696), applied. The co-trustee can
retain or set off against the misappropriated
trust money such part of the legacy as devolved
by derivative title beneficially on the default-
ing trustee. The principle of Jacubs v.
Rylance (43 L. J. Ch. 280; L. R. 17 Eq. 341).
or the principle of Cherry v. Boultbee (7 L. J.
Ch. 178: 4 Myl. & Cr. 442). applied. Dacre.
In re; Whitaker v. Dacre, [1915] 2 Ch. 480:
60 S. J. 44— Sargant, J.
G. PAYMENT INTO AND OUT OF
COURT.
See also Vol. XIV. 922. 2208.
Doubt as to Persons Entitled — Payment into
Court — Cost of Trustees on Payment out.] —
Where trustees paid a fund into Court to
which a certain testator was entitled who
had left it to one H. D. absolutely, and H. D.
was described in the probate of the testator's
will as H. D., the widow of the testator, when,
in fact, although the testator had gone through
a form of marriage with H. D., his wife was
still alive, and his wife and child both made
claims to the fund and the trustees paid it into
Court : — Held , on a summons for payment out,
that they were to be allowed their costs of the
summons. Davies' Trusts, In re, 59 S. J. 234
— Neville, J.
Payment out to One Trustee — Original Sole
Trustee — No Children of Marriage.] — A wife
had been deserted by her husband in 1892,
shortly after their marriage, and there were
no children of the marriage. Funds in Court
had been settled by the wife by the marriage
settlement, and she petitioned that they
should be paid out to her brother, who was
the sole and an original trustee of the settle-
ment : — Held, notwithstanding the general
rule that funds in Court will not be paid out
to a sole trustee, that in the circumstances
of this case payment should be ordered to be
made to the sole trustee, he undertaking in
the event of there subsequently being any
children born of the marriage to appoint
another trustee of the settlement. Reynault,
In re (16 Jur. 233), followed. Leigh v.
Pantin, 84 L. J. Ch. 345; [1914] 2 Ch. 701;
112 L. T. 26— Sargant, J.
H. VESTING ORDERS.
See also Vol. XIV. 961, 2208.
Person Absolutely Entitled — Request in
Writing to Trustee to Transfer Trust Funds —
Service of Request.] — The Court will make a
vesting order under section 35. sub-sec-
tion 1 (ii.) (d) of the Trustee Act, 1893, where
the trustee does not appear on the petition,
provided an affidavit is filed stating that the
petition has been served on the trustee, and
also that the request, in writing, addressed
and sent to him in accordance with the terms
of such section, has not been returned by the
Post Office. Struve's Trusts, In re, 56 S. J.
551 — Parker, J.
1657
TRUST AND TRUSTEE.
1658
II. PUBLIC TRUSTEE.
Scottish Marriage Contract.] — The pro-
visions of the Public Trustee Act, 1906, do not
extend so as to enable the Public Trustee to
act as trustee of a Scottish or foreign settle-
ment. Hewitt's Settleynent. In re; Hewitt v.
Hewitt, 84 L. J. Ch. 358; [1915] 1 Ch. 228:
112 L. T. 287; 59 S. J. 177; 31 T. L. K. 81
—Eve, J.
Appointment of Public Trustee as Sole
Trustee of Settlement.] — Under section 5 of
the Public Trustee Act, 1906, the Court has
express jurisdiction to appoint the Public
Trustee sole trustee of a settlement, although
the settlement provides that the number of
trustees shall not at any time be less than
three. Setnble, under the combined effect
of section 10 of the Trustee Act, 1893, and
section 5 of the Public Trustee Act, 1906, the
donee of the power in a settlement so framed
could himself appoint the Public Trustee to
be sole trustee. Leslie's Hassop Estates, In
re, 80 L. J. Ch. 486; [1911] 1 Ch. 611;
104 L. T. 563; 55 S. J. 384; 27 T. L. K. 352
—Eve, J.
Trustee for Purposes of Settled Land Acts.'
— Where a donee of a power or the Court
properly appoints the Public Trustee to be a
sole trustee, the settlement in such a case
must be read as authorising the payment of
capital moneys to him as a sole trustee under
section 39 of the Settled Land Act, 1882, and
as intending the giving of notices to a sole
trustee under section 45. lb.
Real Estate — Powers.] — The scope of the
Public Trustee Act, 1906, implies that the
Public Trustee has full power to hold land
and to take possession of personal property
in all cases, and not only under section 3 of
the Act. 7b.
Number of Trustees not to be Less than
Three.] — Semble, — Under section 25 of the
Trustee Act, 1893, the Court can appoint two
trustees or even a sole trustee of a settlement,
notwithstanding the settlor's direction as to
the minimum number being three. lb.
Consent to Act — Deed of Appointment —
Operative Date.] — Rule 8, sub-rule 2 of the
Public Trustee Rules, 1912, provides that no
appointment of the Public Trustee to be
trustee shall be made, except by a testator,
unless and until the consent of the Public
Trustee to act as such trustee shall have been
obtained. Rule 10 provides that the consent
of the Public Trustee must be in writing and
under his ofiBcial seal. The executrixes and
trustees of a will executed a deed appointing
the Public Trustee sole trustee in their place,
but it was not their intention that a complete
appointment should be made until certain
events had happened. After the happening
of these events the Public Trustee executed
under his official seal a consent to act, and
thereupon the date of appointment was dated,
and on a later day the Public Trustee executed
the deed of appointment : — Held, that as the
deed of appointment did not become operative
until the day when the Public Trustee com-
pleted it, his consent was executed before
the appointment was made, and therefore the
appointment was in accordance with the Rules.
Sltaic, In re; Public Trustee v. Little,
110 L. T. 924; 58 S. J. 414; 30 T. L. R. 418
— C.A.
Charitable Funds — Appointment of Cor-
porate Body as Custodian Trustee — Trust
Exclusively for Religious or Charitable Pur-
poses— Incorporated Body of Trustees — Power
I of Trustees of Funds to Appoint as Custodian
I Trustee — "Instrument" Empowering Incor-
I porated Body to Undertake Trusts.] — The
provisions of sub-sections 4« and 5 of section 2
of the Public Trustee Act, 1906, precluding the
Public Trustee from accepting certain classes
of trusts, including trusts exclusively for re-
ligious or charitable purposes, apply only to
the Public Trustee, and not to a corporation
appointed custodian trustee of such a trust
under section 4, sub-section 3; nor is such an
appointment open to objection on the ground
that it will abridge or affect the powers or
duties of the official trustees of charitable
funds. Cherry's Trusts, In re; Robinson v.
Wesley an Methodist Chapel Purposes Trustees,
83 L. J. Ch. 142; [1914] 1 Ch. 83;
110 L. T. 16; 58 S. J. 48; 30 T. L. R. 30—
Sargant, J.
The appointment of a custodian trustee of
charitable funds may be made by trustees
having the power of appointing new trustees
of the funds; and the "instrument" within
the meaning of rule 30 of the Public Trustee
Rules, 1912, empowering a body of trustees
incorporated under the Charitable Trustees
Incorporation Act, 1872, to undertake trusts
is their deed of trust and the certificate of
incorporation. 7b.
Will — Retiring Trustee — Appointment of
Public Trustee — Prohibiting Appointment —
Expediency — Expense.] — In cases not involv-
ing any exceptional or disproportionate ex-
penditure the mere fact that the appointment
of the Public Trustee as a trustee involves the
expense contemplated by the Public Trustee
Act, 1906, in respect of his remuneration is not
a material element in determining whether
such appointment is " expedient " under
section 5, sub-section 4 of that Act. Firth, In
re; Firth v. Loveridge, 81 L. J. Ch. 539;
[1912] 1 Ch. 806 ; 106 L. T. 865 ; 56 S. J. 467 ;
28 T. L. R. 378— Eve, J.
Judicial Trustee Retiring — Power of Court
to Appoint Public Trustee.] — When a judicial
trustee retires, he has no overriding power
to appoint his successor, but the Court has
jurisdiction to appoint the Public Trustee in
his place, and in a proper case will do so.
Johnston, In re; Mills v. Johnston, 105 L. T.
701— Neville, J.
Power to Administer — Small Estate Over
l.OOOL— Reduced to Less than 5002. by Dis-
tribution.!— The gross capital value of the
small estate referred to in section 3 of the
Public Trustee Act, 1906, is to be ascertained
at the date of the application to the Public
Trustee to administer the estate, and not at
1659
TRUST AND TRUSTEE— UNDUE INFLUENCE.
1660
the date of the death of the testator or
intestate. Accordingly the Public Trustee has
power to administer an estate the gross capital
value of which was more than 1,000Z. at the
death, but which was reduced below that sum
by distribution. Deveraux, In re; Toovey v.
Public Trustee, 80 L. J. Ch. 705; [1911] 2 Ch.
545 ; 105 L. T. 407 ; 55 S. J. 715 ; 27 T. L. R.
574— Eve, J.
Administration of Trusts.] — Section 3
applies throughout to the estates of deceased
persons, and has no application to trusts
created by settlements. lb.
Income Fee as between Annuitant and
Residuary Legatee.] — When the Public
Trustee is appointed to administer the trusts
of a will, which consist in paying a portion
of the income of the trust funds to annuitants
and the remainder to life tenants of the
residue, the income fee payable to him in
accordance with the Public Trustee Act,
1906, s. 9, must be duly apportioned as
between the annuitants and the life tenants,
and must not be thrown entirely upon residue.
Beritley, In re; Public Trustee v. Bentley,
84 L. J. Ch. 54; [19141 2 Ch. 456; 111 L. T.
1097— Astbury, J.
Two Settlements — Conflicting Interests —
Power to Compromise.] — The Public Trustee
has no more power than a private trustee,
where he is in the position of having conflict-
ing interests, to make a bargain with himself,
and must accordingly come to the Court in the
proper proceedings for sanction to such a,
bargain. New Haw Estate Trust, In re,
107 L. T. 191 ; 56 S. J. 538— Parker, J.
Audit of Trust Accounts — Summons by Way
of Appeal from Direction as to Costs of Audit.]
— Where funds had been properly invested
and all reasonable information given to a
certain beneficiary under a trust, who never-
theless demanded an audit of the accounts of
the trust under section 13 of the Public Trustee
Act, 1906, — Held, that the decision of the
Public Trustee ordering such beneficiary to
pay the costs of such an audit was quite right
and must be upheld. Utley, In re; Russell v.
Cubitt, 106 L. T. 858; 56 S. J. 518— Swinfen
Eady, J.
Section 13 of the Public Trustee Act, 1906,
does not give to beneficiaries general powers
to obtain audits of the trust accounts at the
expense of the trust estate. lb.
Right of Appeal from Public Trustee —
Exercise of Judicial Functions — Investigation
and Audit of Trust Accounts — Jurisdiction to
Direct Applicant to Pay Expenses.] —
Section 10 of the Public Trustee Act, 1906, is
not confined to the acts, omissions, or decisions
of the Public Trustee under the preceding
sections, but gives a right of appeal from his
decision, at any rate in all cases where he
exercises a judicial as opposed to an adminis-
trative function. Oddy. In re. 80 L. J. Ch.
404; [19111 1 Ch. 532;' 104 L. T. 338; 55 S. J.
348; 27 T." L. R. 312— Parker, J.
The Public Trustee ought not to be made
a party to an appeal, though the Court which
hears it may in matters of doubt ask him
to state his reason for his decision. lb.
In directing, under section 13, sub-section 5
of the Act, the expenses of an investigation
and audit of the condition and accounts of a
trust to be borne by the party who has applied
for the investigation and audit under sub-
section 1, the Public Trustee is exercising a
judicial function, and an appeal therefore lies,
and he ought to hear the parties, if they
desire it, before giving the direction. lb.
The jurisdiction to award costs against such
an applicant ought to be exercised so as to
control the right of application given by
section 13 within reasonable bounds. Obser-
vations on this right. lb.
TURBARY.
Rights of.] — See Common.
UMPIRE.
See ARBITRATION.
UNDUE INFLUENCE.
Parent and Child — Mortgage by Unmarried
Daughter to Secure Parent's Debt — Presump-
tion of Parental Influence — Onus of Proof.] —
Transactions in the nature of bounty from
child to parent are in equity always regarded
with the greatest jealousy when taking place
before the child is completely emancipated
from the parental influence, and this principle
is not confined to gifts or donations properly
so-called, but extends to other benefits — for
example, to a security executed in favour of
the parent's creditor. In the case of a
daughter who, having no means of subsist-
ence of her own, continues, after coming of
age, to live under her father's roof, the
parental influence almost necessarily con-
tinues, and the mere fact that she has for
some years been of full age does not put an
end to the presumption that she is still acting
under that influence. Where, therefore, the
parent borrows money upon the security of
a document executed by an unmarried
daughter living under his roof it is incumbent
upon the lender to ascertain and assure him-
self not only that she understood what she
was doing, but also that she was not acting
under parental influence. London and West-
minster Loan and Discount Co. v. Bilton,
27 T. L. R. 184 — Joyce, J. And see Gift.
1661
UNEMPLOYMENT— VAGEANT.
1662
UNEMPLOYMENT.
See INSURANCE (NATIONAL).
VACCINATION.
Medical Officer — Superannuation.] — See
Lawson v. Marlborough Guardians , ante, col.
1130.
VAGRANT.
See also Vol. XIV. 1091, 2215.
" Idle and disorderly person " — Street
Collection for Strike Funds.] — Section 3 of the
Vagrancy Act, 1824, which enacts that a person
placing himself in a public place to beg or
gather alms shall be deemed an idle and
disorderly person, is directed against the class
of persons who, at the time of the commission
of the acts charged, have given up work and
adopted begging as a mode of life and means
of livelihood, and not against persons so
gathering alms for another purpose. Mathers
V. Penfold, 84 L. J. K.B. 627; [1915] 1 K.B.
514 ; 112 L. T. 726 ; 79 J. P. 225 ; 13 L. G. E.
359; 59 S. J. 235; 31 T. L. R. 108— D.
The appellant, a workman out of work
through a strike, solicited contributions in the
streets towards the strike fund of his union,
from which he had, and might again have,
benefit : — Held, that he was not " an idle and
disorderly person " within section 3 of the
Vagrancv Act, 1824. Pointon v. Hill (53 L. J.
M.C. 62; 12 Q.B. D. 306) discussed and
commented on. lb.
Rogue and Vagabond — "Found" upon
Premises for Unlawful Purpose.] — Section 4 of
the Vagrancy Act, 1824, provides (inter alia)
that every person " found in or upon any
dwelling house ... for any unlawful pur-
pose " shall be deemed a rogue and vagabond :
— Held, that to constitute the offence created
by those words the accused must be dis-
covered upon the premises doing the acts or
things which of themselves constitute the
unlawful purpose, but that actual apprehen-
sion upon the premises is not necessarv.
Moran v. Jones, 104 L. T. 921; 75 J. P. 4li ;
22 Cox C.C. 474; 27 T. L. R. 421— D.
Frequenting Public Street with Intent to
Commit Felony — " Place adjacent" — Entrance
Hall of Hotel.' — The entrance hall and stair-
case of an hotel which opened directly on to a
public street, — Held to be a place adjacent to
a street or highway within section 4 of the
Vagrancy Act, 1824. M'Intyre v. Morton,
[1912] S. C. (J.) 58— Ct. of Sess.
Male Person in a Public Place Persistently
Soliciting for Immoral Purposes — Acts of
Solicitation not Observed by Subject Thereof —
" Solicits."] — On the prosecution under
section 1, sub-section 1 (b) of the Vagrancy
Act, 1898, of a male person for in a public
place persistently soliciting for immoral pur-
poses, the solicitation not being by words, but
by actions, it is not necessary to prove that
the subject of the alleged acts of solicitation
was aware of them. Horton v. Mead, 82 L. J.
K.B. 200 ; [1913] 1 K.B. 154 ; 108 L. T. 156 ;
77 J. P. 129; 23 Cox C.C. 279— D.
Previous Conviction as Rogue and
Vagabond — Jurisdiction of Court to Punish as
Incorrigible Rogue.] — Where a male person
has been convicted under section 1, sub-
section 1 (b) of the Vagrancy Act, 1898, of
persistently soliciting for immoral purposes,
having been at some former time adjudged to
be a rogue and vagabond, he can be punished
as an incorrigible rogue under the provisions of
section 10 of the Vagrancy Act, 1824. Rex v.
Herion, 82 L. J. K.B. 82; [1913] 1 K.B. 284 :
108 L. T. 848; 77 J. P. 96; 23 Cox C.C. 387;
57 S. J. 130; 29 T. L. R. 93— CCA.
Living in Part on Earnings of Prostitution
— Punishment of Whipping on Second Convic-
tion— First Conviction not on Indictment.] —
The conviction of an offence under the
Vagrancy Act, 1898, preceding the " second or
subsequent conviction ... on indictment "
under the same statute, referred to in sec-
tion 7, sub-section 5 of the Criminal Law
Amendment Act, 1912, need not be a convic-
tion on indictment. Rex v. .Austin, 82 L. J.
K.B. 387; [1913] 1 K.B. 551; 108 L. T. 574:
77 J. P. 271; 23 Cox C.C 346; 57 S. J. 287;
29 T. L. R. 24.5— CCA.
Therefore where a male person was convicted
on indictment of trading on prostitution within
section 1 of the Vagrancy Act, 1898, and it was
also proved that he had been previously con-
victed under that Act by Courts of summary
jurisdiction before the Criminal Law Amend-
ment Act, 1912, had come into operation, —
Held, that the Court had power under section 7,
sub-section 5 of the Act of 1912, in addition to
any term of imprisonment awarded, to order
the offender to be once privately whipped. lb.
Conviction by Court of Summary Jurisdic-
tion of Rogue and Vagabond after Previous
Conviction as Rogue and Vagabond — Commit-
ment to Prison until Next General or Quarter
Sessions — Jurisdiction of Court of Quarter
Sessions to Sentence Prisoner as Incorrigible
Rogue.] — A Court of quarter sessions has no
jurisdiction to sentence, as an incorrigible
rogue, a prisoner committed to prison by a
Court of summary jurisdiction under section 5
of the A^agrancy Act, 1824, as amended by
section 7 of the Penal Servitude Act, 1891,
unless he has been convicted by the Court of
summary jurisdiction of being an incorrigible
rogue. Rex v. Evans, 84 L. J. K.B. 1603:
[1915] 2 K.B. 762 ; 113 L. T. 508 : 79 J. P.
415; 59 S. J. 496; 31 T. L. R. 410— CCA.
The appellant was convicted by a Court of
summary jurisdiction of being a rogue and
vagabond after a previous conviction as a
rogue and vagabond, and was ordered to be
imprisoned and kept to hard labour until the
1663
VAGKANT— VENDOR AND PUECHASEE.
IGCH
next general quarter sessions of the peace.
The Court of quarter sessions, after enquiring
into the circumstances of the case, adjudged
him to be an incorrigible rogue, and sentenced
him to eleven months' imprisonment with
hard labour. The appellant appealed against
the sentence : — Held, that the Court of quarter
sessions had no jurisdiction to adjudge him to
be an incorrigible rogue or to sentence him
therefor, and that their order sentencing him
must be quashed. Rex v. Johnson (78 L. J.
K.B. 290; [1909] 1 K.B. 439) followed. 76.
Non-Pro¥ision for Family — Sentence
Reduced.] — The appellant was sentenced to
six months' imprisonment with hard labour
and ordered to receive twelve lashes with th^
whip. The Court, being of opinion that the
appellant had not much opportunity of provid-
ing for his family since his last release from
prison, quashed that part of the sentence which
ordered him to be whipped. Rex v. Fidler,
78 J. P. 142— CCA.
Failure to Maintain Children.] — iSee
Shaftesbury Union v. Brockway, PaUin v.
Buckland, and Ashley v. Blaker, ante, col.
1135.
Evidence of Wife against Husband —
Admissibility.] — See Director of Public Prose-
cutions V. Blady, ante, col. 450.
VENDOR AND
PURCHASER
A. The Contract and Matters Relating
Thereto.
1. Construction, 1663.
2. Agreements for Sale — Statute of
Frauds.
a. When Concluded, 1664.
b. Statute of Frauds. And see Con-
tract, 1665.
3. Particulars and Conditions of Sale,
1666.
4. Liability for Repairing Covenants,
1667.
5. Conveyance, 1668.
6. Restrictive Covenants, 1669.
7. Rescission, 1674.
B. Rights and Liabilities Arising from
Contract.
1. Purchase Money, 1676.
2. Lien, 1676.
C. Title, 1676.
A. THE CONTRACT AND MATTERS
RELATING THERETO.
1. Construction.
See also Vol. XIV. 1100, 2218.
Agreement for Sale — Non-performance —
Forfeiture — Penalty — Relief.] — An agreement
for the sale of land provided that a portion of
the purchase money should be paid on execu-
tion of the agreement and the balance by half-
yearly instalments with interest, and further
provided that " time is to be considered the
essence of this agreement, and unless the pay-
ments are punctually made at the times and in
the manner above mentioned these presents
shall be null and void and of no effect, and the
said party of tlie first part shall be at liberty
to se-sell the land, and all payments made
thereunder shall be absolutely forfeited to the
party of the first part " : — Held, that this
stipulation was of the nature of a penalty from
which the purchaser was entitled to be
relieved on payment of the balance of the
purchase money due with interest. Dagenham
Thames Dock Co., In re; Hulse's Claim
(43 L. J. Ch. 261 ; L. R. 8 Ch. 1022), approved
and followed. Kilmer v. British Columbia
Orchard Lands, Ltm.,82 L. J. P.C 77; [1913]
A.C 319; 108 L. T. 306; 57 S. J. 338;
29 T. L. R. 319— P.C.
2. Agreements for Sale — Statute of
Frauds.
a. When Concluded.
See also Vol. XIV. 1110, 2219.
Letters — Introduction of New Terms — Con-
tract Subject to Approval of Solicitor.] — If
documents or letters relied on as constituting
a contract contemplate the execution of a
further contract between the parties it is a
question of construction whether the execution
of the further contract is a condition or term
of the bargain or whether it is a mere
expression of the desire of the parties as to the
manner in which the transaction already
agreed to will in fact go through. The fact
that the reference to the more formal document
is in words which according to their natural
construction import a condition is generally
conclusive against the reference being treated
as the expression of a mere desire. North v.
Percival (67 L. J. Ch. 321 ; [1898] 2 Ch. 128)
doubted. Von Hatzfeldt-Wildenburg (Prin-
cess) V. Alexander, 81 L. J. Ch. 184; [1912]
1 Ch. 284; 105 L. T. 434— Parker, J.
Reference in Letters to Formal Contract —
Complete Open Contract.] — Where the agents
for the vendor of two warehouses, in a letter
accepting an offer by intending purchasers,
wrote as follows : " We shall be glad to meet
you at your early convenience to receive a
deposit on the sale to you, and to arrange for
a formal contract, to be drawn out for signa-
ture by the solicitors," — Held, that this was
not a conditional acceptance, but a letter
completing an open contract, of which specific
performance could be enforced as against the
purchaser. Rouse v. Ginsberg, 55 S. J. 632 —
Swinfen Eady, J.
Price — Sale by Auction — " Price which
public will be asked to pay."] — By an agree-
ment made between the appellant and the
respondents the appellant was to have the
right of purchasing certain lots of land to be
selected by him, with the concurrence of the
respondents, at prices to "be decided by our
officials as soon as the surveys are completed
. . . our prices . . . will be at least no higher
1665
VENDOR AND PUECHASEE.
1666
than the price which the public will be asked
to pay." The lots were selected, and were
offered to the appellant at the prices which
similar lots had fetched at a sale by auction.
The appellant refused to accept the lots at
these prices, contending that " the price which
the public was asked to pay " within the
meaning of the agreement was the reserve
price put on similar lots at the auction, not
the price at which the lots were actually sold,
and brought an action for specific performance
or in the alternative for damages : — Held, that
he was not entitled either to specific per-
formance of the contract or to damages for a
breach of it. Frewen v. Hays, 106 L. T. 515
— P.C.
b. Statute of Frauds.
See also Vol. XIV. 1125, 2221.
Memorandum in Writing — Signature by
Agent " tliereunto lawfully authorised " —
Solicitor — Signature Affixed " alio intuitu."]
— A purchaser verbally agreed with G. to buy
certain real estate. He paid a deposit and
received a receipt therefore from G., but did
not himself sign any document. G. was acting
in this matter as agent for the vendor, a fact
which subsequently he denied, and upon which
he brought an action against the vendor. In
this action, in which G. was found to have
in fact been acting as agent for the vendor, the
purchaser offered to give evidence on behalf of
the vendor as to the interview with G. which
resulted in the above-mentioned verbal agree-
ment. For this purpose the purchaser pre-
pared a statement and subsequently also some
answers to specific questions asked by the
vendor's solicitors. Neither the document con-
taining the statement nor that containing the
answers to the questions was signed by the
purchaser, but each document was sent by his
solicitors under cover of a letter signed by
them to the vendor's solicitors. In an action
for specific performance by the vendor against
the purchaser, — Held, that the purchaser's
solicitors were acting as agent for the pur-
chaser in forwarding the two documents above
mentioned, that they had authority to forward
them under cover of a signed letter in the way
they did, and that the two documents together
with the two letters were a sufficient memo-
randum in writing to satisfy the Statute of
Frauds. Smith v. Webster (45 L. J. Ch. 528;
3 Ch. D. 49) distinguished. Jones v. Victoria
Graving Dock Co. (46 L. J. Q.B. 219; 2 Q.B.
D. 314) and Griffiths Cycle Corporation v.
Hmnber d Co. (68 L. J. Q.B. 959; [1899]
2 Q.B. 414) followed. Daniels v. Trefusis,
83 L. J. Ch. 579; [1914] 1 Ch. 788; 109 L. T.
922; 58 S. J. 271— Sargant, J.
Part Performance — Notice to Quit to Weekly
Tenants. 1 — At a time when arrangements had
been made for completion of the contract the
purcliaser requested the vendor to give notice
to quit to two weekly tenants who were in
occupation of part of the property contracted
to be sold. The vendor complied with the
request and th? tenants gave up possession : —
Held, that this constituted an act of part per-
formance as unequivocally referable to the
contract, as if the purchaser had taken
possession of part of the property, and in itself
prevented the purchaser from relying on the
Statute of Frauds as a defence. 76.
3. Particulars and Conditions of Sale.
See also Vol. XIV. 1166, 2222.
Whether Particulars Misleading — Sub-lease
— Notice of.] — The advertisement of an in-
tended sale of a public house described it as
in the occupation of a tenant at a yearly rent,
but did not specify the tenure by which the
tenant held. An intending purchaser having
seen the advertisement made an offer which
was accepted, subject to conditions of sale, an
agreement incorporating which she signed, and
which stated explicitly that the tenant of the
public house held under a lease which had ten
years to run. There was a conflict of evidence
as to whether the intending purchaser under-
stood before signing the agreement that this
lease was outstanding, and she sought to
repudiate the purchase on the ground that she
was misled by the advertisement into suppos-
ing that there was a yearly tenant in occupation
of the public house. In an action by the plain-
tiff for the deposit fraud was not pleaded or
alleged, but the jury found in answer to ques-
tions put to them that the purchaser was
misled by the advertisement, and did not
understand when signing the agreement that
there was the lease of the public house out-
standing : — Held, that there was no question
for the jury and that a verdict should have
been directed for the plaintiff ; that the adver-
tisement was not misleading; and that, apply-
ing the principle of Carroll v. Keayes
(It. E. 8 Eq. 97), it was sufficient to put the
purchaser on enquiry as to the tenure under
which the occupier held ; and that in the
absence of fraud she was bound by the agree-
ment which she signed specifying the actual
tenure. Clements v. Coyiroy, [1911] 2 Ir. R.
500— C. A.
Semble, there is no conflict in principle
between Carroll v. Keayes (supra) and Cabal-
lero V. Henty (43 L. J. Ch. 635; L. R.
9 Ch. 447). lb.
Under-lease for Lease — Lease Dated Prior
to Commencement of Title.] — A vendor con-
tracted to sell a leasehold house and premises.
It appeared from the abstract of title that the
lease was an under-lease and that the pro-
perty formed part of larger pieces of land
comprised in certain head-leases. The pur-
chaser objected that she would be liable to
distress for rent for the whole premises com-
prised in the head-leases and also to evic-
tion under the conditions of re-entry for
breaches of covenant committed in respect of
the remaining property, and she required the
vendor to obtain a release a*' his own expense.
The existence of the head-leases was disclosed
in the under-lease which formed the root of
title : — Held, that the objection was a good
one, that the deposit must bo returned, and
the purchaser's costs of investigating the title
paid by the vendor. Darlinqton v. Hamilton
(23 L. J. Ch. 1000; Kay. 550) and Creswell
V. Davidson (56 L. T. 811) followed. Lloijds
53
1667
VENDOR AND PUECHASER.
1668
Bank and LiUington, In re. 81 L. J. Ch. 386;
f 1912] 1 Ch. 601 ; 106 L. T. 561 ; 56 S. J. 380
— Warrington, J.
Agricultural Land — " Bush fruit " — Im-
provements— Written Consent of Landlord —
Claim for Compensation by Tenant — Liability
of Purchaser — Notice of Tenancy Agreement.]
— Agricultural lands were put up for sale by
public auction. The particulars described
certain parts of the lands as " bush fruit."
One of the conditions provided that the pur-
chasers were to be deemed to have notice of,
and to take subject to the terms of, all the
existing tenancies. The purchaser of the lot
under " bush fruit " did not inspect, or ask to
inspect, the lease or agreement affecting the
property, either previously to or at the sale.
Before completion, the vendor, at the request
of the purchaser, gave the tenant notice deter-
mining his tenancy. Subsequently it was dis-
covered that the tenant had received the
written consent of his landlord, the vendor's
predecessor in title, to plant the land with
" bush fruit," and he put in a claim for com-
pensation under the Agricultural Holdings Act,
1908, s. 2, in respect of the improvement : —
Held, that the claim for compensation must
be borne by the purchaser. Derby (Earl) and
Ferguson's Contract. In re, 81 L. J. Ch. 567;
[19i2] 1 Ch. 479; 105 L. T. 943: 5G S. J.
71 — Joyce, J.
Lands Subject to Rentcharges — Sale in Lots
by Tenant for Life — Power to Charge Moneys
Paid on Foot of Apportioned Part of Rent-
charge on Unsold Lot.] — A tenant for life put
up for sale by private treaty lands, subject
to a rentcharge. in six separate lots, subject
to a condition that each lot would be sold
subject to the entire rentcharge. but primnrily
liable for an apportioned part thereof, and t!iat
the purchaser of each lot sliould covenant for
the payment of such apportioned part and for
the indemnity of the other lots as regards such
apportioned part only, and should charge all
moneys payable on foot of such covenant on
such lot, and that the vendor for the purpose
of such condition should stand in the place of
and be de.^med to be the purchaser of any un-
sold lot or lots : — Held, that this was a valid
condition on such a sale. Biggs- Atkinson and
Ryan's Contract, In re, [1913] 1 Ir. E. 125—
Barton, J.
4. Liability for Repaikixg Coven.ants.
Leasehold House — Sale by Mortgagee —
Breaches of Covenant to Repair — No Express
Notice of Breaches — Title — Production of Last
Receipt for Rent — Liability of Vendor for Past
Breaches of Covenant.] — A mortgagee by
assignment of leasehold property contracted to
sell the premises and all the residue of the
term, and the contract provided that the pur-
chaser should covenant to pay the rent and
perform the covenants contained in the lease
and to indemnify the mortgagee against the
said rent and covenants. The lease contained
covenants for repair, and there had been
breaches of them. The purchaser had in-
spected the property, but had had no express
notice of the breaches of covenant to repair.
and at the date of the contract both he and
the mortgagee were in fact unaware that then:
had been such breaches. There was no express
agreement on the part of the mortgagee to
give a good title : — Held, that the mortgagee
as vendor was bound to make good such
breaches, and that in the circumstances the
production by the vendor of the receipt for
rent last due was not, under section 3, sub-
section 4 of the Conveyancing Act, 1881, in
itself conclusive evidence of the due perform-
ance of the covenants of lease. Taunton and
West of England Perpetual Benefit Building
Society and Roberts's Contract, In re, 81 L. J.
Ch. 690; [1912] 2 Ch. 381; 107 L. T. 378;
56 S. J. 688— Parker, J.
Barnett v. Wheeler (10 L. J. Ex. 102;
7 M. & W. 364) and Highett and Bird's Con-
tract, In re (72 L. J. Ch. 220; [1903] 1 Ch.
287), as explained by Eomer, L.J., in Allen
and DriscoH's Contract, In re (73 L. J. Ch.
614; [1904] 2 Ch. 226), distinguished from
the present case. 76.
5. CONVKYANCE.
See also Vol. XIV. 1203, 2225.
Contract for Sale of Land Free from In-
cumbrances— Improvement Charge on Land —
Incidence of Liability to Pay.] — The improve-
ment charge which, under section 61 of the
London County Council (Improvements)
Act, 1899, may be placed on lands the value of
which has been increased by the improvement
there referred to, does not become a charge
on any land until the assessment for the
charge has been approved by the County
Council uader sub-section 5 of the section and
the amount defined by the assessment becomes
a charge and incumbrance under sub-section 16.
Where, therefore, after the date of a contract
for the sale of land free from incumbrances,
the County Council n )proved an assessment
of an improvement ciiarge on the land, of
which both vendor r.nd purchaser were
ignorant, though notice of the Council's inten-
tion to impose a charge had been served before
the contract, — Held, that the purchaser was
not entitled to a conveyance free from the
charge. Stock v. Meakin (69 L. J. Ch. 401:
[1900] 1 Ch. 683) distinguished. Farrer and
Gilbert's Contract. In re, 83 L. J. Ch. 177 ;
[1914] 1 Ch. 125 ; 110 L. T. 23 ; 58 S. J. 98
— Sargant, J
Covenant — Supply of Water — Farmhouse
and Farm Buildings — Conversion of Farmhouse
into Mansion — Severability of Covenant.] —
A conveyance contained a covenant by the
plaintiffs to supply water for a farmhouse ami
for the farm buildings. The defendant, who
became owner of the farmhouse, converted it
into a residential mansion : — Held, that the
covenant was severable into a covenant to
supply the farmhouse and a covenant to
supply the farm buildings, and that though the
obligation to supply the farmhouse had ceased,
the obligation to supply the farm buildings
remained. Hadham Rural Council v.
Crallan, 83 L. J. Ch. 717; [1914] 2 Ch. 138;
111 L. T. 154; 78 J. P. 361; 12 L. G. R.
707; 58 S. J. 635; 30 T. L. R. 514—
Neville, J.
1669
VENDOK AND PUECHASER.
1670
Parcels — Plan — Falsa Demonstratio —
"Things omitted or knowingly suffered" —
Implied Covenant for Good Right to Convey.]
— Where there are several descriptions of the
parcels in a conveyance which, when evidence
of surrounding facts is admitted, are not con-
sistent one with the other, there is no general
rule by which a Court can decide which
description ought to prevail, and the order in
which the conflicting descriptions occur is not
conclusive. The respondent conveyed land to
the appellant, and in the deed the parcels were
described in four different ways : First, by the
name which the premises bore; secondly, by
their acreage; thirdly, by the names of the
occupiers; and fourthly, by delineation and
tint on a plan indorsed on the deed. The
first three descriptions were all more or less
inaccurate. On the plan a small strip of land
was coloured which was not the property of
the respondent. It had formerly been a part
of the land of the respondent, but he or his pre-
decessors in title had allowed a title by adverse
possession to be acquired against him : —
Held, that the plan, being a perfectly definite
delimitation of the land expressed to be con-
veyed by the deed, must prevail, and that the
purchaser was entitled to damages for breach
of the implied covenant for a good right to
convey, the extinction of the vendor's title to
the strip of land being a " thing omitted or
knowingly suffered " within section 7, sub-
section 1 of the Convevancing Act, 1881.
Eastwood V. Ashton, 84 L. J. Ch. 671: [1915]
A.C. 900; 113 L. T. 562; 59 S. J. 560— H.L.
(E.)
Judgment of the Court of Appeal (83 L. J.
Ch. 263; [1914] 1 Ch. 68) reversed. lb.
6. Eesteictive Covenants.
See also Vol. XIV. 1219, 2230.
Restriction on User of Leased Premises —
Restrictive Covenant Contained in Deed Rela-
ting to other Premises — Surrender of Lease —
Acceptance by Landlord v?ithout Notice of
Restrictive Covenant — Grant of New Lease to
Lessee with Notice — Enforceability of Restric-
tive Covenant on Lessee.] — The defendant
I. S. was the lessee of premises No. 137 High
Street, East Ham, where he carried on the
business of a pork butcher. The lease con-
tained a covenant by him that he would not
carry on in those premises any noisy or offen-
sive trade other than that of a pork butcher.
He was also the lessee of premises No. 170
High Street, East Ham. where he carried on
the business of a general butcher. By a deed
of assignment I. S. sold to the plaintiff his
leasehold interest in No. 170, and the goodwill
of the business carried on there, and cove-
nanted to use his best endeavours to promote
the said business and to secure to the plaintiff,
his executors, administrators, and assigns, the
full advantage of his, the vendor's, connec-
tion and custom in the said business, and
also that he, his executors, administrators,
or assigns, would not carry on or be con-
cerned or interested in or assist any other
person to carry on or be concerned or obtain
any interest in the trade or business of a
butcher within three miles of No. 170 High
Street, East Ham, and also that he, his
executors, administrators, or assigns, would
not deal in fresh meat other than pork at
No. 137 High Street. Subsequently I. S.
determined to give up the business which he
was carrying on at No. 137, and his son, the
defendant, G. S., who was also a butcher and
who was aware of the last-mentioned restric-
tive covenant contained in the deed of assign-
ment, was minded to carry it on. I. S.
surrendered his lease of No. 137 to the land-
lord, who granted a new lease to G. S., by the
terms of which G. S. was entitled, so far as
the landlord was concerned, to carry on in
those premises the business of a general
butcher. G. S. accordingly commenced to
carry on at No. 137 the business of a general
butcher. The plaintiff claimed damages
against I. S. for breach of the covenants in
the deed of assignment, and an injunction
against G. S. to restrain him from dealing in
fresh meat other than pork at No. 137 : —
Held, by Scrutton, J., that the plaintiff was
entitled to damages against I. S. for breach
of covenant and to an injunction against
G. S. as claimed. Held, by the Court of
Appeal, on an appeal by G. S., that the in-
junction must be set aside, on the ground that
the landlord had no actual notice of the
restrictive covenant, and there was nothing to
justify the inference that he had constructive
notice, and that G. S., being therefore in the
position of a purchaser with notice from a
previous purchaser without notice, was entitled
to use the premises free from any restraint
bv reason of the restrictive covenant. Wilkes
V. Spooner, 80 L. J. K.B. 1107 : 11911] 2 K.B.
473 ; 104 L. T. 911 ; 55 S. J. 479 : 27 T. L. E.
426— C. A.
Building Agreement — Covenant to Keep
Windows Closed — Covenant to Run with Land
— Flat — Notice to Tenant — Injunction.] — A
builder, L., who had entered into an agree-
ment with a landlord by which a lease of
certain property was to be granted him on the
completion of certain buildings thereon,
covenanted with B., the owner of adjoining
land, that the windows in the said buildings
facin<^ B.'s land should be obscured and fixed.
A block of flats was erected and a lease
granted to L., by whom it was subsequently
mortgaged and the equity of redemption re-
leased. The defendant became tenant of one
of the flats, and opened one of the fixed
windows -.—Held, that the covenant was a
restrictive covenant, binding on the leasehold
interest, of which the defendant had construc-
tive notice, and could be enforced by injunc-
tion. Abbey v. Guiteres, 55 S. J. 364 —
Warrington, J.
Building Scheme — Building Stipulations —
Right Reserved to Allow Departure therefrom
— "Vendor."] — An owner of a building estate
who has sold certain lots thereof subject to a
building .scheme and restrictive covenants or
stipulations, one of which reserves the right to
the " vendor " to allow a departure from the
stipulations, may allow a departure therefrom
to one claiming title from an original pur-
chaser, notwithstanding that the person so
claiming title and his predecessors in title have
covenanted to observe the stipulations which
1671
VENDOR AND PUECHASER.
1672
were set out verbatim in their conveyances ;
because one of the stipulations is that the
'■ vendor " reserves the right to allow a depar-
ture therefrom. Mdyner v. Payne, 83 L. J.
Ch. 897; [1914] 2 Ch. 555; 111 L. T. 375;
58 S. J. 740— Neville, J.
" Vendor " in such a case, where no defini-
tion of the word is given, means the original
vendor. Ih.
Change in Character of Locality —
Injunction.' — In refusing to grant the equit-
able relief of specific performance of a
restrictive covenant by way of injunction the
Court is entitled to take into consideration the
fact of a general change in the character of
the neighbourhood irrespective of any parti-
cular acts or omissions of the plaintiff and
his predecessors in title. Observations of
James, L.J., in German v. Chapman (47 L. J.
Ch. 250; 7 Ch. D. 271) and of Lindley, L.J.,
in Knight v. Simmonds (65 L. J. Ch. 583 ;
[1896] 2 Ch. 294) considered and applied.
Sohey v. Sainsbury, 83 L. J. Ch. 103 : [1913 !
2 Ch. 513; 109 L. T. 393; 57 S. J. 836-
Sargant, J.
Trade — Change in Character of Neigh-
bourhood— Acquiescence — Fried-fish Shop .] —
Purchasers of land laid out upon a building
scheme in 1862 covenanted to observe certain
stipulations, one of which prohibited any trade
or manufacture from being carried on upon the
estate. Subsequent purchasers of other land
on the estate purchased with notice of and
subject to this covenant. One of them had
permitted four houses upon land purchased by
him to be turned into shops : — Held, that, in
the circumstances, his executors were entitled
to restrain a purchaser from him from carry-
ing on the trade of a fried-fish vendor on his
premises, in breach of the original covenant.
To disentitle an owner to enforce a restrictive
covenant it is not sufficient to establish a
change in the character of the neighbourhood
without positive evidence of personal acquies-
cence in the change on the part of the person
seeking to enforce the covenant. Pulleyne v.
France, 57 S. J. 173— C. A.
Definite Scheme — House not to be Used
as Shop — Alteration in Neighbourhood.] — A
covenant, which was inserted in a conveyance
of a plot of land by the owner of a building
estate in accordance with a definite scheme,
provided that " No house shall be used as a
shop," and a company which purchased the
plot with notice of the covenant erected on
the plot a building to be used as a club, the
ground floor being composed of lock-up shops,
which they had let or were intending to let to
tradesmen. In an action by the owner of the
unsold portions of the estate against the pur-
chasers for a breach of the covenant the
defendants contended that the plaintiff had
caused a change in the character of the neigh-
bourhood by permitting the erection of shops,
and that the covenant merely meant that no
dwelling house should be converted into a
shop : — Held, that the defendants had failed
to prove a change in the character of the
neighbourhood, and that they had committed
a breach of the covenant and the plaintiff was
entitled to an injunction against them. Ramuz
V. Leigh-on-Sea Conservative and Unionist
Club, 31 T. L. R. 174— Eve, J.
Agreement for Restrictive Covenant in Con-
veyance Affecting Adjoining Property of
Vendor — Adjoining Property Sold before Com-
pletion— Covenant not Enforceable.] — In a
contract for the sale of land the purchaser
agreed that she would covenant in the con-
veyance for herself, her heirs and assigns,
with the vendor, his heirs and assigns, owners
and occupiers of adjoining land belonging to
the vendor, not to use the premises for any
trade which might depreciate his adjoining
property. Before the conveyance was executed
the vendor died and his executors sold and
conveyed away all his adjoining property.
The contract did not form part of a building
scheme. In the conveyance the purchaser,
her heirs and assigns, covenanted with the
vendor's executors not to use the premises so
as to depreciate the value of the adjoining
property : — Held, that the vendors having
parted before the conveyance with all the
adjoining land, the premises were not subject
to the restrictive stipulation. Where there is
a conveyance of land it expresses the final
and concluded terms of the contract between
the parties, and the terms cannot be altered
or extended by reference to the antecedent
contract of purchase. Millbourn v. Lyons,
83 L. J. Ch. 737; [19141 2 Ch. 231; 111 L. T.
388; 58 S. J. 578— C.A.
Conveyance Subject to Easements — No Re-
servation on Reconveyance — Rights of Way
and Drainage — Mistake — Rectification — Con-
structive Notice."! — The G. estate was offered
in eight lots by public auction, subject to a
stipulation that each lot was sold subject to
all occupation ways and methods of drainage
enjoyed by the vendors and their tenants.
N. purchased the whole estate, and on June 1,
1910, agreed to sell lot 6. which another lot (3)
adjoined, to H., upon the conditions read at
the auction. The G. estate was conveyed to
N. subject to easements. N. conveyed lot 3 to
the plaintiffs in February. 1911. N. had
previously, in November, 1910, conveyed lot 6
to the defendant H., who mortgaged it to C,
the same solicitor acting for H. on his pur-
chase and for H. and C. as to the mortgage.
Rights of occupation way and drainage in fact
existed over the part of the G. estate conveyed
to H. : — Held, that, the conveyance to H. con-
taining no reservation, the fact that lot 6 was
sold subject to the privileges in favour of lot 3
would not, if N. had not parted with lot 3,
have entitled the plaintiffs to rectification of
H.'s conveyance without shewing mutual mis-
take, which was not proved. At any rate,
there was no such right to rectification when
N. had conveyed lot 3 by deed to which H.
was not a party. Slack v. Hancock, 107 L. T.
14— Eve, J.
The inspection referred to in section 3, sub-
sections 1 and 2 of the Conveyancing Act,
1882, does not extend to a personal examina-
tion of the property. 7f).
Building Plans to be Approved by Vendor's
Surveyor — Liability for Surveyor's Fees —
1673
VENDOR AND PUECHASER.
1674
Custom.] — Where a conveyance of land in the
interests of the vendor restricts building by
the purchaser and provides that the purchaser's
building plans shall be approved by the
vendor's surveyor, the surveyor's fees, in the
absence of express stipiilation, are payable
by the vendor who employs him. The pur-
chaser will not be made liable for such charges
upon evidence of a general custom where such
evidence is not incontestable and does not
extend to the locality in which the property
is situate. Reading Industrial Co-operative
Society v. Palmer. 81 L. J. Ch. 454: [1912]
2 Ch. 42; 106 L. T. 626— Swinfen Eady, J.
Benefit of Restrictive Covenant — Covenant
Running with Land — " Negative easement " —
Covenant Enforceable in Equity." — Purchasers
of land sold in plots for building in 1880
entered into restrictive covenants with the
tenant for life of a settled estate, who had the
legal estate therein, and the trustees, who had
only a power of sale. There was no general
building scheme applicable to the estate as
a whole, but similar covenants were entered
into by purchasers of property in the same
road : — Held, that the benefit of the covenant
ran with the land in equity in the same
manner as a negative easement, and that an
adjoining owner was entitled to enforce the
covenant against a purchaser and his tenant,
although the original legal estate of the
covenantee had ceased to exist. Rogers v.
Hosegood (69 L. J. Ch. 652; [19001 2 Ch. 388)
applied. Long v. Gray, 58 S. J. 46— C. A.
Covenant not to Build on Land — Covenant
on behalf of Covenanter and Assigns — Sale of
Land by Covenantor — Mortgage by Purchaser
— Notice of Covenant to Purchaser and Mort-
gagee— Covenantee Owning no Adjoining Land
— Alleged Breach of Covenant — Right of
Covenantee to Enforce Covenant against Pur-
chaser and Mortgagee.] — A derivative owner
of land, deriving title under a person who has
entered into a restrictive covenant concerning
the land, is not bound by the covenant even
if he took with notice of its existence, if the
covenantee has no land adjoining or affected
by the observance or non-observance of the
covenant. London County Council v. Allen,
83 L. J. K.B. 1695; [19141 3 K.B. 642;
111 L. T. 610; 78 J. P. 449; 12 L. G. K. 1003
— C.A.
In 1907, M.A., the owner of land in the
Metropolis, as a condition of his obtaining
permission from the London County Council
to his laying out a new road on the land,
entered into a covenant with the Council " for
himself, his heirs and assigns, and other the
persons claiming under him, and so far as
practicable to bind the land and hereditaments
herein mentioned into whosoever hands the
same may come " that he or they would not
erect or cause or permit to be erected any
building, structure, or other erection upon a
plot forming part of the land without the con-
sent of the Council. In 1908 M. A. mortgaged
the land, including the plot. In July, 1911,
his wife, E. A., built three houses on the
plot, the consent of the Council not having
been obtained. In August, 1911, the mort-
gage was redeemed, and the mortgagee with
the concurrence of M. A., conveyed the land
including the plot to E. A. in fee. In
October, 1911, E. A. mortgaged the land and
houses to X. in fee. The Council did not own
any land adjoining or in the neighbourhood
of the land in question. The Council brought
an action against M. A., E. A., and N. for
alleged breach of the covenant. For the pur-
poses of the case it was assumed that E. A.
and N. had had notice of the covenant : —
Held, that, while the plaintiffs were entitled
to succeed as against the defendant M. A.,
the original covenantor, they were not entitled
to succeed as against the defendants E. A.
and N., who held on derivative titles, under
M. A., inasmuch as they, the plaintiffs, had
no land in the neighbourhood capable of enjoy-
ing the benefit of the covenant. 7b.
Decision of Neville, J. (83 L. J. Ch. 260;
[1914] 1 Ch. 34), affirmed. 7b.
Principle of Tulk \. Moxhay (18 L. J. Ch.
83 ; 2 Ph. 774) discussed and explained.
London and South-\V estern Railway v. Gomm
(51 L. J. Ch. 530; 20 Ch. D. 562), Formby v.
Barker (72 L. J. Ch. 716; [1903] 2 Ch. 539),
Kisbet and Potts' Contract, In re (75 L. J. Ch.
238; [1906] 1 Ch. 386), and Millbourn v.
Lyons (83 L. J. Ch. 7-37; [1914] 2 Ch. 231)
applied. 7b.
7. Erscissiox.
See also Vol. XIV. 1239, 2243.
Misrepresentation.] — Where two parties are
negotiating at arm's length a general com-
munication, which is in fact untrue, made
where there was no duty of disclosure on the
party making it, is not such a misrepresenta-
tion as to be ground for the rescission of a
contract. Kelly v. Enderton, 82 L. J. P.C. 57 ;
[1913] A.C. 191; 107 L. T. 781— P.C.
Latent Defect — 'Watercourse under Pro-
perty.]— A purchaser is not entitled to rescis-
sion on account of a defect in the property not
so material as to be within the principle of
Flight V. Booth (4 L. J. C.P. 66 ; 1 Bing. K. C.
370), although the vendor was aware of it and
did not disclose it to him. Carlish v. Salt
(75 L. J. Ch. 175; [1906] 1 Ch. 335^ distin-
guished. Shepherd v. Croft, 80 L. J. Ch. 170;
[1911] 1 Ch. 521; 103 L. T. 874— Parker, J.
The plaintiffs contracted to sell to the
defendant a house and grounds possessing
building advantages, the defendant purchas-
ing primarily for residential purposes, but
intending in certain eventualities to develop
the property for building. A natural under-
ground watercourse ran across the property,
culverted or piped throughout its course by
the owners through whose lands it passed ;
and when the property was inspected by the
defendant's agents the piping was exposed
at the bottom of a hole dug in the lawn of the
house. They, however, did not observe it,
and the plaintiffs, though aware of the exist-
ence of the watercourse, did not disclose it to
the defendant. The contract provided that
the property was to be sold subject to all
drainage, sewer, and other easements affecting
it, and also that no compensation was to be
1 claimed in respect of any error or misstate-
1675
VENDOR AND PURCHASEE.
1676
ment that should be discovered ; but the plain-
tiffs waived the latter provision : — Held, that
the watercourse was not a drain or sewer
vested in the local authority, nor an easement
affecting the property ; but that it was a latent
defect, though not so material as that if speci-
fic performance were granted the defendant
would not get substantially that for which she
contracted ; and that the plaintiffs were en-
titled to specific performance with a reduction
of the purchase money. 7b.
Qucere, whether the plaintiffs, if they had
insisted on the provision excluding compensa-
tion, would have been entitled to specific per-
formance without a reduction. Ih.
Damage Caused by Vendor to Subject-matter
— Duty of Purchaser Repudiating." — The pur-
chaser of a boarding establishment in leasehold
premises took possession by agreement before
the date fixed for completion. A distress
having been put in for rent due from the
vendor, the purchaser gave the boarders notice
to quit, and repudiated the contract : — Held,
that this circumstance was not so damaging or
destructive to the subject-matter as to entitle
the purchaser to repudiate. Per Farwell,
L.J. : The giving notice to quit was wrong-
ful, as it was the purchaser's duty, even if
entitled to repudiate, to take the best care
of the subject-matter till the vendor had an
opportunitv of resuming control. Dotesio v.
Biss (No/l), 56 S. J. 612— C.A.
Deposit Paid to Stakeholder — No Clause in
Contract Forfeiting Deposit — Judgment for
Specific Performance — Default by Purchaser —
Rescission and Payment of Deposit.' — A pur-
chaser on signing the contract for sale paid
a deposit to the vendor's solicitors as stake-
. holders. The contract did not contain a
clause forfeiting the deposit on default by the
purchaser. The purchaser failed to complete
and the vendor obtained judgment for specific
performance, which the purchaser failed to
comply with : — Held, that the vendor was
entitled to rescission of the contract and also
to receive and retain the deposit. Howe v.
Smith (53 L. J. Ch. 1055; 27 Ch. D. 89)
followed. Jackson v. De Kadich (39 L. J.
N.C. 425; [1904] W. N. 168) not followed.
Hall V. Burnell, 81 L. J. Ch. 46; [1911]
2 Ch. 551; 105 L. T. 409; 55 S. J. 737—
Eve, J.
Time for Completion — Unreasonable Delay —
Time not of Essence of Contract in Equity —
Effect of Maxim.'' — The maxim that in equity
the time fixed for completion is not of the
essence of a contract does not apply to cases
in which the stipulation as to time canno*' be
disregarded without injustice to one or other
of the parties, or where the conduct of either
party has been such as to disentitle him to
equitable relief ; as where a vendor has been
guilty of unnecessary delay in completion, and
the purchaser has served him with a notice
limiting a reasonable time at the expiration
of which he will treat the contract as at an
end. Stickney v. Keeble (No. 1), 84 L. J. Ch.
259; [1915] A.C. 386; 112 L. T. 664— H.L.
(E.)
Judicature Act, 1873. s. 25, sub-s. 7.]—
Section 25, sub-section 7 of the Judicature
Act, 1873, does not apply to cases in which
the Court is asked to disregard a stipulation
as to time in an action for common law relief,
if it be established that under the circum-
stances equity would not, prior to the Act,
have granted specific performance or restrained
the action. lb.
Decision of the Court of Appeal (57 S. J.
389) reversed. lb.
B. RIGHTS AND LIABILITIES ARISING
FROM CONTRACT.
1. PuKCHASE Monet.
See also Vol. XIV. 1267, 2251.
Payment into Court to Meet Incumbrance —
Amount Paid in Proving Insufficient —
Liability of Purchase Money to Make Good
Deficiency." — Where, upon a sale of land which
is subject to a charge of capital money — such
as by a term of years to secure portions — pay-
ment into Court is made of a sum of money
under section 5 of the Conveyancing Act, 1881,
to provide for the charge, the charge does not
become extinguished as against the purchase
money receive by or on behalf of the vendors,
but the purchase money remains liable to
make up any deficiency that may arise owing
to the money paid into Court proving inade-
quate to meet the charge in full when it falls
due. Wilberforce, In re; Wilberforce v.
WilberfoTce, 84 L. J. Ch. 252; [1915] 1 Ch.
94 ; 111 L. T. 797 ; 58 S. J. 797— Sargant, J.
An order granting leave to pay money into
Court under the section is not one that should
be made by a Master, but should be obtained
from the Judge. lb.
2. Lien.
See also Vol XIV. 1307. 2257.
Covenant to Maintain Vendor.] — A assigned
by deed to her son a dwelling house and farm
in consideration of natural love and affection,
and of the covenants on the part of the son
thereinafter contained. The deed contained a
covenant by the son that he, his executors,
administrators, or assigns, would maintain A
and her daughter during their lives and permit
them to occupy the dwelling house : — Held,
that there was a lien on the lands for such
maintenance which was binding as against a
subsequent purchaser for value with notice.
Richardson v. M'Causland (Beatty, 457)
applied and followed. Kelaghan v. Daly,
[1913] 2 Ir. R. 328— Boyd, J.
C. TITLE.
See also Vol. XIV. 1417. 2266.
Title Depending Partly on Statute of Limi-
tations— Unvifilling Purchaser — Rescission.] —
A vendor sold land the title to which was to
commence, by the conditions of sale, with a
certain document. The abstract of title, when
delivered, commenced with the document in
question; but, instead of tracing the devolution
of the land from this document to the purchaser
1677
VENDOE AND PUECHASEE.
1678
through an uninterrupted succession of docu-
ments, it traced it in this manner only to a
particular point, and ultimately disclosed a
possessory title in the vendor, commencing
from this point, which, though good, was good
only by virtue of the Real Property Limita-
tion Acts -.—Held (Fletcher Moulton, L.J.,
dissenting), that the title was one that the
Court would force upon an unwilling purchaser
in an action for specific performance. Games
V. Bonnor (54 L. J. Ch. 517) and Baker and
Seh)ion's Contract, In re (76 L. J. Ch. 235;
[1907] 1 Ch. 238), applied. Atkmson's and
HorselVs Contract, In re, 81 L. J. Ch. 588;
[1912] 2 Ch. 1; 106 L. T. 548; 56 S. J. 324
— C.A.
Queer e, whether the purchaser would not
have been entitled to rescind the contract at
common law immediately on learning the facts
of the case. Ih.
Decision of Swinfen Eady, J. (81 L. J. Ch.
133; [1912] 1 Ch. 2), affirmed. Ih.
Vendor not Bound to Get in Legal Estate —
Conveyance as Beneficial Owner — Implied
Covenants for Title — Rectification.] — A con-
tract for sale of an under-lease stated facts
shewing that the legal term was outstanding
in X, and provided that the purchaser should
not require the concurrence of X or on that
account of any other person except the vendor
in the conveyance to him, nor should the
vendor be required to get in any estate which
might be outstanding in X. The vendor
having conveyed as beneficial owner without
qualification and given a collateral indemnity
against the outstanding estate, — Held, the
vendor was entitled to rectification so as to
exclude from the implied covenant for title any
covenant that the vendor had power to assign
the outstanding legal estate. Fenner v.
McNab, 107 L. T. 124— Neville, J.
Leasehold Property — Two Mortgages Created
by Vendor's Predecessor in Title for same
Term — Second Mortgage Paid of! during Con-
tinuance of First Mortgage — Purchaser's Right
to Demand Surrender by Second Mortgagee.]
— A vendor's predecessor in title of leasehold
property created two mortgages for all his
unexpired terra except the last day. The
second mortgage was paid off during the con-
tinuance of the first mortgage, and a receipt
was given by the second mortgagee : — Held,
that the Satisfied Terms Act, 1845, did not
apply, and that the purchaser was entitled to
demand surrender by the second mortgagee
before he completed. Moore and Hulme's
Contract, In re, 81 L. J. Ch. 503; [1912]
2 Ch. 105; 106 L. T. 330; 56 S. J. 89—
Joyce, J.
Legacies Charged on Land — Sale of Part of
Land — Purchase-Money Less than Legacies —
Purchase-Money Paid to Trustee — Conveyance
Freed from Charge.] — Trustees contracted to
sell certain land wliich together with otlier
trust property was charged with the payment
of certain legacies, the unpaid balance of
which amounted to 16,000Z. No mention of
the charge was made in the contract. The
whole of the purchase money (3,0001.) was
proposed to be paid to the trustee of the settled
legacies. The purchaser objected that a good
title could be made without payment to the
trustee of the settled legacies of the full
balance of 16,000/. and interest : — Held, that
on payment to the trustee of the 3,000L the
premises could be assured to the purchaser
freed and discharged from the 16,000L and
interest. Morrell and Chapman's Contract,
In re, 84 L. J. Ch. 191; [1915] 1 Ch. 162;
112 L. T. 545; 59 S. J. 147— Eve, .J.
Business Premises — Contract Contained in
Lease — Windows — Light Enjoyed under
Agreements with Neighbouring Owners —
Non-disclosure of Agreements Prior to Lease
— Warranty as to Ancient Lights — Licence to
Enter Premises — Agreements not Binding on
Land — Specific Performance — Forcing Title on
Purchaser.] — By a contract contained in a
lease made in 1900, under which, in an event
that happened, the lessee agreed to purchase
the demised property, which consisted of
certain shops and warehouses described on a
plan, but there was no express mention of
windows. By two agreements in identical
terms made in 1890 between the lessor and
adjoining owners he agreed that the user of
certain windows, the light through which was
admittedly material for his business, should
be by licence, that the windows should not
open outwards and should be glazed with
opaque glass, and that the lessor, his heirs
or assigns, would within one month after
determination of the licence remove the
windows and fill up the openings with like
materials as the wall in which they were, and
that in default the adjoining owners and all
persons deriving title under them might at
the expense of the lessor, his heirs or assigns,
enter upon the premises, remove the windows,
and fill up the openings. The agreements
were determinable by notice given by the
adjoining owners. No notice of these agree-
ments was given to the lessee, the purchaser,
who only discovered them on investigating the
title, and, an action for specific performance
having been brought against him by the
representatives of the lessor, he objected to
the title on the ground of material misdes-
cription : — Held, reversing Astbury, J., that
the plaintiffs were entitled to a decree for
specific performance ; that there was no
warranty in the contract that the de facto
windows were ancient lights ; that the consent
in writing which prevented the statutory
period of prescription from beginning to run
did not create an incumbrance on the property,
and therefore there was no obligation to put it
in the abstract ; that the agreements would
not bind the purchaser within the principle of
Tulk V. Moxhay (18 L. J. Ch. 83; 2 Ph. 774),
as they were positive in form and not negative,
and involved the expenditure of money ; and
that, even if tliey implied a negative, that
would not be sufificient to bring the case within
Tulk V. Morliay (18 1.. J. Ch. 83; 2 Ph. 774i ;
that tlie clause in the agreements giving a
right of entry was a mere licence, passing no
interest in land and not binding upon the
purcliaser after conveyance, and that if it
amounted to an interest in the land it would
be void as a perpetuity, and that specific
performance should be ordered against the
1679
VENDOR AND PURCHASER— WAIVER.
1680
purchaser, inasmuch as, in view of the decision
of the Court, the position of the purchaser,
after completion, with regard to the windows
would not be one of any doubt. Greenhalgh v.
Brindley (70 L. J. Ch. 740; [1901] 2 Ch. 324),
approved and followed. Bewley v. Atkinson
(49 L. J. Ch. 153; 13 Ch. D. 283) considered.
Smith V. Colboiirne, 84 L. J. Ch. 112; [1914]
2 Ch. 533 : 111 L. T. 927 ; 58 S. J. 783— C.A.
Contract for Sale of Lease — Obligation to
make a Good Title — Landlord's Right of Re-
entry after Notice of Dilapidations.] — An
assignor of a lease who by non-compliance
with a dilapidation notice served upon him
by his landlord has rendered the lease liable to
forfeiture cannot make a good title under an
open contract, although the assignee has ten-
dered and the landlord has accepted rent subse-
quently to the date of the contract, but before
completion has been effected. Martin, In re;
Dixon, ex parte, 106 L. T. 381— Phillimore, J.
Registered Title Deeds — Sale According to
Plan — Discrepancy in Area between Plan and
Deeds.] — In a sale of land in Scotland the
previous negotiations, whether oral or written,
are admissible in evidence to prove what was
in fact the subject of sale — not to alter the
contract, but to identify its subject. There is
no doctrine of law in Scotland that when an
estate is sold under a general name, that name
is held to designate the estate as described in
the title deeds recorded in the Register of
Sasines. The meaning of a descriptive name
in a particular contract cannot be determined
by a fixed rule of law without regard to the
facts of the case. Gordon-Cummin g v. Moulds-
worth, 80 L. J. P.C. 47; [1910] A.C. 537—
H.L. (Sc.)
Where land was sold as shewn upon a plan,
and there was no dispute on the validity of
this contract, and there was a discrepancy
between the area comprised in the plan and
in that of the registered title, — Held, that the
property sold was that which was delineated on
the plan, not that of the registered title. lb.
Settled Land — Contract for Sale — Document
Prior in Date to Commencement of Title — Sale
by Tenant for Life — Land in Ireland — Order
of Court in Ireland Appointing Trustees — Pur-
chase of Land in England — Capital Moneys —
Purchaser's Right to Enquire into Source of.]
— Tlie vendor contractivl to sell land in Eng-
land under a contract fixing the commencement
of title in 1874 and stating that he was selling
as tenant for life under his statutory power
under the Settled Land Acts. The settlement
in question was a compound settlement created
by several instruments, some of which, includ-
ing a will made in 1836, were dated or made
prior to the time fixed for the commencement
of title, and the last of which was a re-settle-
ment made in 1902. The vendor had, however,
voluntarily furnished an abstract of all the
earlier documents constituting the compound
settlement except the will of 1836, which was
recited in one of these documents dated in
1860. The compound settlement originally
comprised land in Ireland alone, and by an
order of the High Court of Justice in Ireland,
made in 1908, the present trustees were
appointed trustees of the compound settlement
for the purposes of the Settled Land Acts. In
1910 the land in England, the subject of the
contract, was conveyed to the trustees and
their heirs to the uses, upon the trusts, and
subject to the powers, charges, and provisions
to, upon, and subject to which under the com-
pound settlement the freehold lands therein
comprised stood limited. The conveyance
contained a statement to the effect that the
purchase was made at the direction of the
tenant for life out of capital moneys in the
hands of the trustees arising under the com-
pound settlement : — Held, that the purchasers
were precluded by the Conveyancing and Law
of Property Act, 1881, s. 3, sub-s. 3, from
requiring production of the probate of the will
of 1836 or an abstract or copy thereof. Arran
(Earl) and Knowlesden, In re, 81 L. J. Ch.
547; [1912] 2 Ch. 141; 106 L. T. 758—
Warrington, J.
Held, also^ that under the order of the
Court in Ireland the trustees were in the
position of trustees of the settlement for the
purposes of the Settled Land Acts in relation
to the subsequently acquired land in England
without being reappointed by the Court in
England. lb.
Held, also, that the purchasers were not
entitled to go behind the statement in the
conveyance or to require other evidence that
the purchase moneys arose from the sale of
land in Ireland subject to the compound settle-
ment. 76.
VESTED, CONTINGENT,
AND
FUTURE INTERESTS.
See WILL.
VETERINARY SURGEON.
See MEDICINE.
VEXATIOUS ACTIONS.
See PRACTICE (Staying Proceedings).
WAIVER.
Of Term in Contract.] — See Morrell v.
Studd. ante, col. 330.
Of Breaches of Covenant.] — See Stephens
V. Junior Army and Navy Stores, ante, col.
830; and Seale v. Gimson, ante, col. 1035.
1681
WAIVER— WAE.
1682
Of Diplomatic Pmilegc] — See Republic of
Bolivia Exploration Syndicate, Lim., In re,
ante, col. 730.
Of Objection as to Jurisdiction.] — See
Grimble S Co. v. Preston, ante. Local
Government, col. 913.
Of Condition in Fire Policy.] — See
Toronto Railway v. National British and Irish
Millers Insurance Co., ante, col. 719.
WAR.
I. Alien Enemies. See Alien.
n. Defence of the Kealm, 1681.
in. Trading with the Enemy, 1684.
IV. Prize of War.
a. Rights as to.
i. Ships, 1693.
ii. Cargo, 1699^
b. Jurisdiction of Prize Court. 1710.
I. ALIEN ENEMIES. See Alien.
II. DEFENCE OF THE REALM.
King's Prerogative — Right to Requisition
Land — Compensation.] — The Crown has power
in time of war to requisition lands and build-
ings which are necessary for the defence of
the realm without making any compensation
therefor, both under the King's prerogative
and also under the Defence of the Realm
(Consolidation) Act, 1914, and the regulations
made thereunder. X's Petition of Right,
In re, 84 L. J. K.B. 1961; [1915] 3 K.B.
649; 113 L. T. 575; 59 S. J. 665; 31 T. L. R.
596— C. A.
High Treason — Aiding and Comforting the
King's Enemies — Intent — Assisting German
Subjects Resident in England to go to
Germany for Military SerYice — Direction to
Jury.] — The appellant, who was born in
Germany but was a naturalised British subject
since 1905, and German Consul at Sunderland,
was indicted on a charge of high treason by
adhering to, aiding, and comforting the King's
enemies — namely, the subjects of the German
Emperor. The overt acts alleged against him
were that he incited and endeavoured to
procure, and in fact procured, certain German
subjects resident in England to leave this
country and go to Germany and there enter
the military service of the German Emperor,
and assisted them with money to do so. His
defence was based on two grounds — first, that,
at the time he did the overt acts alleged
against him, he did not know that a state
of war existed between Great Britain and
Germany; and secondly, that in doing such
acts he had no traitorous intent. The learned
Judge at the trial directed the jury that, if
they were satisfied that at the time of doing
the acts alleged against him, the appellant
knew that a state of war existed between
Great Britain and Germany, they must find
him guilty, and further directed them that the
belief of the appellant that the acts were lawful
constituted no defence : — Held, on appeal,
that, unless the jury were satisfied that the
appellant in doing the acts alleged against him
was intending to aid and comfort the King's
enemies, they could not find him guilty, and
that, as there w^as no direction to them by the
learned Judge to that effect, the conviction
must be quashed. Rex v. Ahlers, 84 L. J.
K.B. 901; [1915] 1 K.B. 616; 112 L. T. 558;
79 J. P. 255; 31 T. L. R. 141— CCA.
Communicating Information to Enemy —
Indictment — Ayerment — Intention of Assisting
Enemy.] — An indictment under Regulations 18
and 48 of the Defence of the Realm (Consolida-
tion) Regulations, 1914, for attempting to
communicate naval and military information
to the enemy, is not vitiated by inserting in
each count the words " with the intention of
assisting the enemy." Rex v. Kuepferle,
31 T. L. R. 461— CCA.
Attempt — Intention to Assist the Enemy
— Count Charging Attempt — Averment of
Intent in Same Count — Intent a Question for
Jury — Truth or Falsity of Information —
Materiality.] — By Regulation 18 of the Defence
of the Realm (Consolidation) Regulations,
1914, made under the Defence of the Realm
Consolidation Act, 1914, it was made an
offence triable by court martial to attempt
without lawful authority to communicate to
the enemy military information which is calcu-
lated to be or might be useful to the enemy.
By Regulation 57 a person found guilty of
this offence is liable to penal servitude for life
or any less punishment, " or, if the Court
finds that the offence was committed with the
intention of assisting the enemy, to suffer
death or any less punishment." By section 1,
sub-section 1 of the Defence of the Realm
(Amendment) Act, 1915. the offence was made
triable by a civil Court with a jury. The
appellant was indicted for attempting to com-
municate military information to the enemy
with the intention of assisting the enemy, the
averment as to the intent being contained in
the same count as the charge of the attempt.
The presiding Judge left the question of intent
to the jury, and directed them that it made
no difference whether the information sent by
the appellant was true or untrue, and the
appellant was convicted by the jury of com-
mitting the offence with intent to assist the
enemy : — Held, that the averment as to intent
was rightly inserted in the count charging the
attempt, that the question of intent was a
(juestion of fact and was rightly left to the
jury, that it was immaterial whether the
information communicated by the appellant
was true or false, and that therefore the
conviction must be affirmed. Rex v. M.,
32 T. L. R. 1— CCA.
Information Useful to Enemy — Communica-
tion— Validity of Regulation.! — The applicant,
who was a newspaper reporter, dispatched
from Portland to newspapers in London tele-
1683
WAE.
1684
grams giving information as to the sinking of
a German submarine, and the information
would have been of service to the enemy. The
applicant knew that the telegrams would go
througli the Press Bureau, and he supposed
that the officials would strike out anything
undesirable. The telegrams were stopped by
the Press Bureau and the information never
appeared in any of the newspapers. The
applicant was convicted under regulation 18 of
the regulations made under section 1, sub-
section 1 of the Defence of the Realm Con-
solidation Act, 1914. On an application for a
certiorari to quash the conviction, on the
ground that the regulation was ultra vires and
that the conviction was bad, — Held, that the
regulation was not ultra vires and that the
Justices were justified in convicting. Dyson.
Ex parte, 31 T. L. R. 425— D.
Outbreak of War — Effect on Contract —
Restraints of Princes.] — By an agreement
made in 1910, which was to be in force till
191G, the defendants agreed to carry cement
for the plaintiffs by sea from the Thames to
the Forth at a certain rate per ton, subject to
an exception in the case of " perils of the seas,
enemies, pirates, arrests, and restraints of
princes, rulers, and peoples." The freight
was fixed at a low rate in view of the fact that
the defendants did a large trade in carrying
coal by sea from the Forth to the Thames.
After the outbreak of war many of the defen-
dants' ship were requisitioned by the Govern-
ment, the ports from which they usually
carried coal were closed, restrictions causing
delay were placed on ships going from the
Thames to the Forth, and the voyage was
dangerous. The defendants therefore con-
tended that the contract was suspended and
they declined to carry the cement at the agreed
rate. They also contended that they were
absolved from liability under the above excep-
tion and by section 1, sub-section 2 of the
Defence of the Realm (Amendment), No. 2,
Act, 1915 : — Held, that as the Government
had not prevented the voyage from being made
at all the exception as to restraints of princes
did not apply, that the exception as to perils
of the seas only applied when a ship had been
declared under the contract, that the return
coal trade did not lie at the root of the con-
tract, that the parties had not impliedly
stipulated for the continuance of peace, and
that the above enactment did not relieve the
defendants from their obligation to carry out
the contract as a whole, and therefore the
contract was not suspended. Associated
Portland Cevierit Manufacturers v. Cory d
So7}, Lim., 31 T..L. R. 442— Rowlatt, J.
Proceedings Held in Camera — Jurisdiction
of Magistrate.] — The object of the Defence of
tlie Realm Acts, and the Regulations issued
thereunder, lieing to prevent the publication of
anything prejudicial to the safety of the realm,
the provision in Regulation 51a for the hearing
in camera of any proceedings under that
Regulation is not ultra vires; and. as proceed-
ings under Regulation 51a are not a " trial "
within tlie meaning of section 1, sub-section 5
of the Defence of the Realm Consolidation Act,
1914, a magistrate has power to exclude the
public from such proceedings. Norman, Ex
parte, 85 L. J. K.B. 203; 60 S. J. 90— D.
III. TRADING WITH THE ENEMY.
Sale of Goods — C.i.f. Contract — " Payment
net cash in Liverpool in exchange for shipping
documents" — Goods Carried in Enemy Ship —
Tender of Documents after Outbreak of War
— Right of Buyers to Refuse to Accept Docu-
ments.]— By a contract dated May 11, 1914,
the claimants sold to the respondents " about
300 barrels June and/or July shipment
Chilean honey per steamer . . . cost, freight,
and insurance to Hamburg. . . . Payment :
net cash in Liverpool in exchange for shipping
documents on presentation of same." Both
the claimants and respondents were English
firms of merchants carrying on business at
Liverpool. The honey was shipped by the
claimants on June 28, 1914, at Penco on board
the German steamship Menes, and by the bill
of lading was to be carried from Penco to
Hamburg and there delivered to the claim-
ants or their assigns. The bill of lading con-
tained a condition that " all questions arising
under this bill of lading are to be governed
by the law of the German Empire and to be
decided in Hamburg." War was declared
between Great Britain and Germany on
August 4, 1914, and on August 5 a Royal
proclamation was issued warning all persons
carrying on business in the British dominions
against trading in goods destined for persons
resident, carrying on business, or being in the
German Empire. On the same day a tender
of the shipping documents was made on behalf
of the claimants to the respondents, who, how-
ever, refused to accept the documents. The
Menes had not arrived at Hamburg at the
date of the tender of documents : — Held, that
the respondents were entitled to refuse to
carry out the contract, because to carry out
the contract would be a direct violation of the
proclamation, and therefore illegal. Duncan,
Fox d- Co. V. Schrempft d Bonke, 84 L. J.
K.B. 2206; [1915] 3 K.B. 355; 113 L. T. 600;
20 Com. Cas. 337; 12 Asp. M.C. 591; 59 S. J.
578 ; 31 T. L. R. 491— C.A.
Decision of Atkin, J. (84 L. J. K.B. 730;
[1915] 1 K.B. 365), affirmed. 7b.
Sale of Goods under Ante-bellum Contract —
Shipment on Russian Vessel after Outbreak of
War.]— Sec The Parchim. post, col. 1702.
Subjects of Allied State — Contract —
Illegality.] — Before the war with Germany the
plaintiffs, who were Belgians carrying on
business in Antwerp and London, made with
the defendant, who was a German carrying
on business in Hamburg and before the war
in London also, c.i.f. contracts by which the
plaintiffs sold to the defendant certain hides.
After the outbreak of war the defendant
repudiated the contracts. In an action by the
plaintiffs against the defendant for damages,
— Held, that as the plaintiffs were subjects of
a State allied with this country, the contracts,
having been made with a person who was a
subject of a State now at war with this
country, became illegal on the outbreak of
war, and after that date there could be no
1685
WAE.
1686
breach of them, and therefore the plaintiffs
were not entitled to recover. Kreglinger d
Co.w. Cohen, 31 T. L. R. 592— Bray, J.
Branch Business in England — Action on
Contracts made by Branch.] — By clause 6 of
the proclamation of September 9, 1914, against
trading with the enemy, "" Where an enemy
has a branch locally situated in British, allied,
or neutral territory, not being neutral terri-
tory in Europe, transactions by or with such
l)ranch shall not be treated as transactions by
or with an enemy." The plaintiffs, who were
cotton-waste manufacturers and were German
subjects resident in Germany and had their
piincipal place of business there, but also
had a branch in England, brought an action,
after the outbreak of war between Great
Britain and Germany, upon contracts entered
into by the English branch before the war : —
Held, that on the outbreak of war the contracts
became illegal and the transactions sued on
did not come within the above clause, and
therefore the plaintiffs could not maintain the
action. Wolf v. Carr, Parker <£ Co.,
31 T. L. R. 407— C.A.
Branch Office in Allied Territory — Claim by
Branch Office.] — Certain parcels of goods
seized as prize were claimed by the shippers,
the Japanese branch office of a German com-
pany with its head office at Hamburg. The
goods were consigned by the claimants from
Japan to their order, Hamburg. Section 6 of
the Trading with the Enemy Proclamation
(No. 2) of September 9, 1914, provides that
" where an enemy has a branch locally situ-
ated in British, allied, or neutral territory not
being neutral territory in Europe, transactions
by or with such branch shall not be treated as
transactions by or with an enemy " : — Held,
that this proclamation did not protect the goods
from condemnation ; that the sole question was
whether or not the goods were German goods ;
and that the goods must be regarded as the
property of the German company, and not of
the Japanese branch. The Eumaeus, 1 P. Cas.
605; 60 S. J. 122; 32 T. L. E. 125— Evans, P.
Marine Insurance — Insurers Alien Enemies
— Branch Establishment in England — Right
of Insured to Recover Loss under Policy.] — At
common law the question whether a man is
to be treated as an alien enemy for the pur-
pose of his contracts, rights of suit, and the
like, does not depend upon his nationality,
or even upon his true domicil, but upon
whether he carries on business in this country
or not. If he does, it is not illegal, even
during war, to have business dealings with him
in this country in respect of the business which
he carries on here. The same thing is true
of a company which has a head office in
Germany, but a liranch office here, in respect
of business transactions with such branch
office. Ingle, Litn. v. Mannheim Continental
Insurance Co., 84 L. J. K.B. 491; [1915]
1 K.B. 227; 112 L. T. 510; 59 S. J. 59;
31 T. L. R. 41— Bailhache. J.
Paragraph 6 of the Trading with the Enemy
Proclamation, No. 2, of September 9, 1914,
provides that " where an enemy has a brancli
locally situated in British. . . . territory, . . .
transactions by or with such branch shall not
be treated as transactions by or with an
enemy." The Trading with the Enemy
Proclamation of October 8, 1914, par. 5,
provides that, notwithstanding anything con-
tained in the above-mentioned paragraph,
" where an enemy has a branch locally
situated in British, . . . territory, which
carries on the business of insurance or re-
insurance of whatever nature, transactions by
or with such branch in respect of the business
of insurance or re-insurance shall be considered
as transactions by or with an enemy." The
plaintiffs, British subjects, insured their goods
by a policy dated July 31, 1914, with the
Bradford office of the defendants against war
risk only, and war was declared by Great
Britain against Germany on August 4, 1914.
The loss of the plaintiffs' goods occurred about
the end of August, and the plaintiff's brought
an action for the amount of their loss on
September 22. The defendants were a com-
pany incorporated in Germany, but carried on
business in England at their branch office,
registered in accordance with the requirements
of section 274 of the Companies (Consolidation)
Act, 1908, where service of process might be
accepted. On the hearing of a summons to
transfer the action to the Commercial List, it
was contended by the defendants that payment
of the loss under the policy to the plaintiffs
would be illegal : — Held, first, that payment
was not illegal at common law; and secondly,
that it was not a " transaction " within the
meaning of, and prohibited by, the proclama-
tion of October 8, 1914. lb.
Partnership in Germany — English and
German Partners — Dissolution Prior to Out-
break of War — Transfer of English Assets to
English Partner — Claim by English Partner
on Contracts made with Firm before the War
— Costs.] — Where an English debt, in pur-
suance of a dissolution of a partnership busi-
ness carried on in Germany, is transferred
by the German partner to the English partner
before the outbreak of war between the two
countries, payment of the debt to the English
partner is not prohibited by sections 6 or 7
of the Trading with the Enemy Amendment
Act, 1914. The plaintiff, a British subject,
carried on a business in Germany in partner-
ship with a German subject until August 3,
1914, when the partnership was dissolved and
the assets and liabilities of the business were
transferred to the plaintiff, the intention being
that the German partner should take ovc^r the
German and Austrian assets and liabilities,
and that the plaintiff should take over all l;he
rest and continue to carry on the business in
London, which he did. The result of the
arrangement was that a balance of some
6,000L in favour of the plaintiff, together with
the goodwill of the business, was diverted
from Germany to England. The plaintiff, as
assignee, sued the defendants, an English
firm, on a bill of exchange given by them
to the German firm, and for goods sold and
delivered by the German firm to the defen-
dants, before the war between Great Britain
and Germany : — Held, that he was entitled to
recover, but, under the special circumstances
of the case, without costs. Wilson v. Rage-
1687
WAR.
1688
sine £ Co., 84 L. J. K.B. 2185 ; 113 L. T. 47 ;
31 T. L. K. 264— Scrutton, J.
Debt Accruing Due before War — Payment to
Third Person in England for Ultimate Benefit
of Alien Enemy — Improvement of Alien
Enemy's Prospect of Recovering Debt on Ter-
mination of War — Payment " for the benefit of
an enemy."] — The plaintiff, a British subject
in England, claimed payment for goods sold
by him to the defendants, a London firm,
before the outbreak of war. Part of the sum
due was payable by the plaintiff to an alien
enemy in Germany : — Field, that as the claim
at common law was unexceptionable, the
plaintiff was entitled to recover, as he con-
sented to hold the amount recovered until a
summons to vest it in the custodian appointed
under the Trading with the Enemy Amend-
ment Act, 1914, had beer* taken out, which
would obviate the risk of its benefiting an
alien enemy. Held, further, that the fact
that such payment improved the present posi-
tion of the alien enemy by giving him further
security that he would ultimately recover the
money, did not constitute it the offence of
trading with the enemy within the meaning of
section 1, sub-sections 1 and 2 of the Trading
with the Enemy Act, 1914, as being a pay-
ment " for the benefit of an enemy " within
paragraph 5 (1) of the Trading with the
Enemy Proclamation (No. 2) of September 9,
1914. Schmitz v. Vayi der Veen d Co.,
84 L. J. E.B. 861 ; 112 L. T. 991 ; 31 T. L. R.
214— Eowlatt, J.
Payment by Partner to Neutral of Debt of
Partnership Containing Enemy Partners —
" Benefit of an enemy."] — The appellant,
resident in this country, was a member of a
firm which carried on business in Germany,
with a branch in England represented by him.
The other partners resided in Germany, all the
partners being British subjects. At the out-
break of war between this country and
Germany the partnership owed a Dutch firm in
Holland a sum of money for goods supplied to
the partnership in Germany before the war.
The appellant proposed to the Dutch firm to
enter into direct business relations with him,
and they agreed to do so if the above debt were
paid. The appellant thereupon paid it to a
firm in London for transmission through their
branch in Holland to the Dutch firm : — Held.
that the appellant was guilty of trading with
the enemy within the meaning of section 1,
sub-sections 1 and 2 of the Trading with the
Enemy Act, 1914, inasmuch as it was a pay-
ment " for the benefit of an enemy " within
paragraph 5 (1) of the proclamation of
September 9, 1914, the result of the payment
being that the resources of the enemy were
thereby either augmented or protected. Held
further, that the payment to the firm in
London was not a payment " by or on account
of enemies to persons resident " in this
country, within paragraph 7 of the proclama-
tion. "Rex V. Kupfer, 84 L. J. E.B. 1021;
[1915] 2 K.B. 321; 112 L. T. 1138; 79 J. P.
270; 32 T. L. R. 223— CCA.
At the trial the jury were directed that the
question for them was whether the appellant
knew that the payment would in fact benefit
enemies : — Held, that this was a correct
direction. lb.
Obtaining "goods, wares, or merchandise"
from Germany — Lithographic Transfers —
Goods the Property of Appellant.] — By the
Proclamation against Trading with the Enemy,
dated August 5, 1914, all persons resident,
carrying on business, or being in the dominion
of Great Britain and Ireland, were warned
not to supply to or obtain from the German
Empire any goods, wares, or merchandise,
under penalties. The appellant 0. carried on
business in London as a lithographer, and
the appellant C was his manager. 0. had
arrangements with a firm in Germany, who
printed lithographic designs for him, that they
should supply him free of charge with litho-
graphic transfers in proportion to the number
of copies printed by them for him. These
lithographic transfers were used for doing
lithographic printing in this country. When
war was declared between Great Britain and
Germany in August, 1914, the appellant 0.
was entitled to more than 1,000 lithographic
transfers free of charge from the German firm.
He employed a man to go to Germany in
order to obtain some of these transfers. He
also sent C to Holland to meet the repre-
sentative of the German firm and to make
arrangements for transfers to be sent to him.
The appellant 0. received a number of trans-
fers from Germany, but he did not make any
payments to the firm in Germany in respect
of the trading account between them. The
appellants were charged with conspiring
unlawfully to trade with the enemy, and the
appellant 0. was charged with having unlaw-
fully traded on certain dates and the appellant
C with having aided and abetted him : — Held,
that the lithographic transfers were goods,
wares, or merchandise within the meaning
of the proclamation, and that the obtaining
them in the circumstances mentioned above
amounted to an obtaining of goods, wares,
or merchandise from the German Empire
within the meaning of the proclamation,
notwithstanding that no payments were due
to be made in connection therewith, and that
the appellants had therefore been properly
convicted. Rex v. Oppenheimer, 84 L. J.
K.B. 1760; [1915] 2 K.B. 755; 113 L. T. 383;
79 J. P. 383; 59 S. J. 442; 31 T. L. R. 369
—CCA.
Goods of English Company — Alien Enemy
Shareholders — Condemnation.] — Goods be-
longing to an English company, of which all
the directors are enemy subjects resident in
an enemy State and of which all the share-
holders are either enemy subjects or resident
in an enemy State, are not enemy property,
and if they are seized as prize they are not
liable to condemnation. The Poena, 84 L. J.
P. 150 ; 1 P. Cas. 275 ; 112 L. T. 782 ; 59 S. J.
511; 31 T. L. R. 411— Evans, P.
Meaning of "Enemy" — Belgian Company
— Business Carried on in England.] — The
plaintiff company was incorporated under
Belgian law on April 1, 1898, and its regis-
tered office was in Antwerp, now, together
with the greater part of Belgium, occupied
1689
WAR.
1690
by the enemy. The chairman of the company
was still in Antwerp, but three of its five
directors, all Belgians, were carrying on its
business in London. The company owned and
worked copper mines in Portugal, the whole
output of which was being sold in France
and England. The company deposited money
with the defendants, a bank in London, for
the purposes of its business, on a current
account. On July 26, 1915, the company drew
a cheque for lOOL on the defendants, who
refused to pay on the ground that the com-
pany was technically an " enemy," and said
that they must make a return to the custodian
of enemy property in England. The Trading
with the Enemy Act of September 18, 1914,
s. 1, makes it illegal to trade during the war
with the "enemy," and by the Trading with
the Enemy Proclamation (No. 2) of Septem-
ber 9, 1914, " enemy country " is defined as
meaning the territories of the German and
Austro-Hungarian Empires, and " enemy " is
defined as meaning " any person or body of
persons of whatever nationality resident or
carrying on business in the enemy country.
... In the case of incorporated bodies, enemy
character attaches only to those incorporated
in an enemy country." The Trading with the
Enemy (Occupied Territory) Proclamation of
February 16, 1915, provides : " The Proclama-
tions for the time being in force relating to
trading with the Enemy shall apply to . . .
territory in hostile occupation as they apply
to an enemy country." The Trading with the
Enemy (Amendment) Act of November 27,
1914, s. 3, and the Trading with the Enemy
(Amendment) Act of July 29, 1915, s. 2,
require persons holding enemy property to
make returns thereof to the custodian : — Held,
by the Court of Appeal — first, that the com-
pany was not " ex lex," and could therefore
sue; secondly, that it was not an "enemy"
within the meaning of the proclamations of
September 9, 1914, and February 16, 1915;
thirdly, that it was not an " enemy " within
the meaning of the Trading with the Enemy
(Amendment) Act, 1914, s. 3, or the Trading
with the Enemy (Amendment) Act, 1915, s. 2;
and that its cheque must therefore be paid,
and that no return ought to be made to the
custodian. Decision of Younger, J., on the
first and third points affirmed, and on the
second point reversed. Society Anonyme Beige
des Mines d'Aljustrel v. Anglo-Belgian Agency,
84 L. J. Ch. 849; [1915] 2 Ch. 409; 113 L. T.
581; 59 S. J. 679; 31 T. L. K. 624— C. A.
Shareholder in English Company — Proxies
Tendered for Voting — Election of Directors —
Branch of Enemy Corporation in London —
Limited Licence.] — All intercourse between
citizens of two belligerent States which can
possibly tend to the advantage of the enemy
State or the detriment of a citizen's own
State, whether such intercourse is commercial
or not, is inconsistent with the state of war
between the two States, and therefore for-
bidden. Robson V. Premier Oil and Pipe Line
Co., 84 L. J. Ch. 629: [^15] 2 Ch. 124;
113 L. T. 523; 59 S. J. 475; 31 T. L. R. 420
— C.A.
The employment of a British subject as
proxy to exercise the voting power of an alien
enemy in an English company is an inter-
course between him and the alien enemy
which is prohibited. lb.
At a meeting of a company for the election
of directors the chairman rejected votes
tendered by proxy in respect of shares held l)y
the London branch of a German banking
corporation as security for advances : — Held
(affirming decision of Sargant, J.), that the
votes were rightly rejected as being for the
purpose of obtaining a voice in the manage-
ment of a British trading company, which
might be to the detriment of British interests
and the advantage of the enemy. Held also,
that the rejection of votes was justifiable on
the ground that the transaction was a com-
mercial transaction. Held, further, that the
London branch of the German bank was not
authorised to exercise the right of voting by
virtue of the provisions of clause 6 of the
Trading with the Enemy Proclamation, 1914,
No. 2. lb.
Obligations of Citizens of Allied States —
Bbna Fides — Seizure — Sale — Condemnation.]
— Before the war between Great Britain and
her Allies on the one hand, and Germany and
Austria on the other, a French company con-
tracted to sell to a German company a quantity
of silver lead, f.o.b. at Ergasteria in Greece,
and chartered a Greek steamer to convey the
lead to Newcastle. The war broke out while
the loading was being carried out, and a week
later the steamer sailed for Antwerp and New-
castle with the cargo on board. The French
company diverted her to Swansea and there
the silver lead was seized as prize and sold.
The Crown admitted that at the time of seizure
the property in the goods was still in the
French company : — Held, that the facts
shewed that the French company had been
trading with the enemy after the outbreak of
war, and though their action had been bona
fide, yet as the citizens of States allied with
Great Britain were under the same obligations
with regard to trading with the enemy as the
citizens of Great Britain, the silver lead was
confiscable, and the proceeds obtained by its
sale must be condemned as prize. The
Panariellos, 84 L. J. P. 140; 1 P. Cas. 195;
112 L. T. 777 ; 59 S. J. 399 ; 31 T. L. R. 326—
Evans, P.
Consent of Attorney-General to Prosecution
— No Proof of Consent Given at Trial — Effect
on Conviction.] — A conviction for an offence
under section 1 of the Trading with the Enemy
Act, 1914, shall not be quashed merely because
formal proof of the consent of the Attorney-
General to the prosecution has not been given
at the trial. Rex v. Metz, 84 L. J. K.B.
1462; 113 L. T. 464; 79 J. P. 384; 59 S. J.
457; 31 T. L. R. 401— CCA.
Inciting to Trade with the Enemy.] —
The appellant was indicted upon a cliarge of
soliciting and inciting persons to trade with
the enemy, contrary to the provisions of the
Trading with the Enemy Act, 1914. Evidence
was given to the effect that he made a pro-
position to a British firm in respect of a
transaction which, if carried out without a
licence being obtained from the Secretary of
State or the Board of Trade, would have con-
1691
WAE.
1692
stituted an offence against the Act. In the
course of the negotiations nothing was said
by the appellant as to the obtaining of a
licence. The jury convicted the appellant : —
Held, that the jury were entitled to come to
the conclusion that there was no condition
in the proposal made by the appellant that
a licence should be obtained, and that con-
sequently an offence had been committed.
Rex V. Spencer, 84 L. J. K.B. 14-57 ; 112 L. T.
479— CCA.
Proposal to Supply Goods to Enemy
through Neutral Intermediary.] — Held, that
an indictment charging a merchant with
writing and posting a letter to a subject of a
neutral State residing in the neutral country,
requesting him to write and ask certain
enemies if goods could be delivered to them
through the neutral, was a relevant charge of
proposing to supply goods to the enemy con-
trary to the proclamation and Trading with
the Enemy Act, 1914, although the neutral
was not the agent or representative of the
enemies. Held further, that the posting of
the letter was an overt act which might be
sufl&cient to take the offence out of the stage
of preparation into that of perpetration. Lord
Advocate v. Innes. [1915] S. C (J.) 40—
Ct. of Just.
"Proposing" or "agreeing" to Trade with
Enemy — Proposal and Agreement in Letter to
Proposer's Own Agent,] — An indictment
alleged that two members of a Glasgow firm
wrote to their agent at Eotterdam suggesting
that these agents should deliver to a German
firm a cargo of iron ore which was stored on
the quay at Eotterdam awaiting the Glasgow
firm's instructions, and that they thereaften
wrote to their agents agreeing to certain pro-
posed terms for delivering the ore to the
German firm : — Held, that counts in the
indictment charging the accused with " pro-
posing " and '■ agreeing " to supply goods to
the enemy in contravention of the proclamation
against trading with the enemy and the
Trading with the Enemy Acts. 1914. were
relevant and were not open to the objection
that the proposal and agreement were made
to and with the firm's own agents and not to
or with the enemy or his agents. Held
further that subsequent counts in the indict-
ment charging the accused with " supplying "
the ore to the enemy were relevant, although
they did not specify the locus where the offence
had been committed, it being plain from the
indictment as a whole that the locus was
Rotterdam. Observed that if persons resident
and carrying on business in Scotland supply
goods to an enemy, they are subject to the
jurisdiction of the Court in Scotland, no matter
in what country such persons or goods may
chance to be when the goods are supplied.
Lord Advocate v. Hetherivriton, [1915] S. C.
(J.) 79— Ct. of Just.
"Supplying" Goods to the Enemy.] — The
offence of "" supplying " goods to the enemy
in contravention of the proclamation and Acts
of 1914 dealing with trading with the enemy
is not affected by any question as to the owner-
ship of the goods supplied ; and, accordingly.
the offence may be committed even though the
person supplying the goods is not the owner
and has no right of disposal, and even though
the property in the goods has already vested
in the enemy at the date when they are
supplied. The offence is not affected by the
existence of any contractual obligation to
make the supply, or by any conditions as to
payments or otherwise adjected to the supply,
or by the relation to the supplier of any inter-
mediary through whom the supply is made.
lb.
Patent — Action for Infringement — Appeal by
Co-plaintiff Companies — One Co-plaintiff Com-
pany an Alien Enemy — Separate Causes of
Action — Suspension during War.] — An action
for the infringement of a patent was brought
by a German company and an English com-
pany suing as co-plaintiffs. The claim was
for infringement by the defendants during six
years, for two of which the patent was vested
in the German company, and for four of which
it was vested in the English company. The
action was dismissed. Both plaintiffs gave
notice of appeal. War was subsequently de-
clared against Germany. All the members and
directors of the English company except one
were German subjects, and a controller of that
company was appointed under the Trading
with the Enemy Act, 1914. On the appeal
I coming on to be heard, — Held, that the
German company could not be struck out as
appellants, and that the appeal must there-
fore be suspended until after the conclusion
of the war. Actien Gesellschaft fiir Anilin
Fabrikation v. Levinstein. Lim., 84 L. J.
Ch. 842; 112 L. T. 963; 32 R. P. C 140;
31 T. L. R. 225— CA.
Vesting Order — German Bank's Running
Account with English Bank — Disputed Credit
Balance — Application by Creditor of German
Bank for Order Vesting Bank Balance in
Custodian.] — Where a German bank had a
running account with an English bank and
the English bank disputed that they had in
their hands a balance belonging to the German
bank, the Court refused an application under
section 4 of the Trading with the Enemy
Amendment Act, 1914. by a creditor of the
German bank, for an order vesting the credit
balance of the German bank in the custodian.
Such an order would place the custodian in
the position of an assignee of a disputed debt,
and that result was not intended by the Act.
Bank fiir Handel und Industrie, In re, 84 L. J.
Ch. 435; [1915] 1 Ch. 848; 113 L. T. 228;
31 T. L. R. 311— Warrington, J.
Parties to Summons — Debtor to Enemy
Respondent.] — A debtor to an enemy is not a
person holding or managing property alleged
to belong to the enemy within rule 2 (4) of
the Trading with the Enemy (Vesting and
Application of Property) Rules, 1915, and
therefore is not a proper respondent to a
summons taken out by a creditor of an enemy
under section 4 of the Act. lb.
Shares in Limited Company Held by Alien
Enemies — Vested in Custodian of Enemy Pro-
perty— Exercise of Shareholder's Rights by
1693
WAE.
1694
Custodian — Winding up.] — An order made
under the Trading with the Enemy Amend-
ment Act, 1914, s. 4, vesting shares in an
English limited company held by alien enemies
in the custodian of enemy property confers on
the custodian all the rights of a shareholder
under the articles of association of the com-
pany, and he can consequently use the powers
given to shareholders by the articles to wind
up the company without making any further
application to the Court. Pharaon, In re.
85 L. J. Ch. 68 ; 32 T. L. R. 47— C. A.
The custodian may apply t-o the Court, and
the Court has jurisdiction to give directions as
to whether it is proper for him to exercise his
rights, but the rights themselves are not
thereby affected. Semble, on such an applica-
tion the company has no locus standi. lb.
Alien Enemy — Internment of a Merchant
Ship Belonging to — Ship Subsequently
Requisitioned by Crown — Application by
Creditors to Vest Ship in Custodian Trustee —
Discretion of Court — "Vesting is expedient
for the purposes of this Act."] — Where a
German ship was seized as a prize by the
Crown after the declaration of war with Ger-
many, and was subsequently requisitioned by
the Crown and was in the possession of the
Admiralty, section 4 of the Trading with the
Enemy Amendment Act, 1914, was held to be
inapplicable, and that it was not expedient for
the purposes of that Act under the circum-
stances of the case to make an order vesting
property of such a nature as a ship in the
custodian trustee. Hcwsoth. Li)n., In re,
113 L. T. 260— C.A.
Life Assurance Policies — Enemy Mort-
gagee— Application by Trustee in Bankruptcy
of English Mortgagor.] — The trustee in bank-
ruptcy of an English mortgagor who has
mortgaged life assurance policies to an enemy
mortgagee is not a person interested in pro-
perty belonging to an enemy within section 4
of the Trading with the Enemy Amendment
Act, 1914, and therefore is not entitled to
apply to the Court for an order vesting the
policies in the custodian. Ruben. In re,
84 L. J. Ch. 789; [1915] 2 Ch. 313; 113 L. T.
647; 59 S. J. 704; 31 T. L. R. 563—
Younger, J.
IV. PRIZE OF \A^AR.
See alio Vol. XIV. 1786.
a. Rights as to.
i. Ships.
English Company of Alien Shareholders.] —
Qucere, whether an English company, con-
sisting entirely of aliens, can own a British
ship. The Tommi ; The Rothcrsand, 84 L. J.
P. 35 ; [1914] P. 251 ; 1 P. Cas. 16 ; 112 L. T.
257; 59 S. J. 26; 31 T. L. R. 15— Evans, P.
S. P. The Poona, 84 L. J. P. 150: 1 P. Cas.
276; 112 L. T. 782; 59 S. J. 511; 31 T. L. R.
411— Evans, P.
Deep-sea Fishing Vessel — Exemption from
Capture.] — An enemy vessel, which is
shewn by her size, equipment, and voyage to
be a deep-sea fishing vessel engaged in a
commercial enterprise which forms part of the
trade of the enemy country, is not within the
category of coast fishing vessels, so as to be
exempt from capture, but is good prize. The
Berlin, 84 L. J. P. 42; [1914] P. 265;
1 P. Cas. 29; 112 L. T. 259; 12 Asp. M.C.
607; 59 S. J. 59; 31 T. L. R. 38— Evans, P.
Enemy Limited Company — Appearance in
Prize Court — Shareholders — Claimants for
Disbursements and Services — Bounty of Crown
— Mortgagees — Capture at Sea — " Ignorant of
the outbreak of hostilities."] — A German mer-
chant steamship, owned by a German limited
company resident in Germany, left a British
port some hours before war commenced between
this country and Germany, and was captured
at sea while still ignorant of the outbreak of
hostilities. Article 3 of Convention VI. of the
Second Hague Peace Conference, 1907, pro-
vides that enemy merchant ships which left
their last port of departure before the com-
mencement of the war, and are encountered
on the high seas while still ignorant of the
outbreak of hostilities, may not be confiscated,
but are merely liable to be detained, &c. This
Convention was signed by Great Britain, but,
when signed by Germany, article 3 was re-
served. As regards this vessel — first, on behalf
of the Crown, a decree of condemnation as
prize was claimed; secondly, on behalf of the
owners, it was contended that they were
entitled to appear against this claim in the
Prize Court, though the affidavit filed on their
behalf did not shew any special circumstances
entitling them to appear; thirdly, on behalf of
certain shareholders in the vessel, and other
claimants who had paid disbursements or ren-
dered services in respect of the vessel, it was
contended that they had some rights in the
Prize Court in respect of the vessel ; and
fourthly, on behalf of neutral mortgagees of
the vessel, it was contended that the amount
due under the mortgage should be paid out of
the proceeds of the vessel when sold : — Held,
first, that article 3 of the said Convention VI.
did not apply in the circumstances, and that
the vessel must be condemned as prize and not
merely detained; secondly, that the German
owners had no right to appear in the Prize
Court, as no special circumstances were shewn
entitling them to appear ; thirdly, that the
shareholders and claimants in respect of dis-
bursements, &c., had no rights in the Prize
Court in respect of the vessel, but could only
apply to the bounty of the Crown ; and
fourthly, after a full review of the authorities,
that the claim of the mortgagees must be
rejected. TJie Marie Glaeser, 84 L. J. P. 8;
[1914] P. 218; 1 P. Cas. 38; 112 L. T. 251:
12 Asp. M.C. 601; 59 S. J. 8; 31 T. L. R. 8
—Evans, P.
Capture at Sea — Ignorance of Outbreak of
War.] — Apart from international convention,
enemy merchant ships, captured on the high
seas in ignorance of the outbreak of hostilities,
are liable to condemnation. Article 3 of Con-
vention VI. of the Hague Conference, 1907.
which provides for the detention, instead of
confiscation, of enemy vessels which left their
last port of departure before the commence-
1695
WAE.
1696
ment of war and are encountered on the high
seas while still ignorant of the outbreak of
war, has no application to German vessels,
the German Empire, when signing the conven-
tion, having refused its assent to this article.
The Perkeo, 84 L. J. P. 149; 1 P. Cas. 136;
112 L. T. 251; 12 Asp. M.C. 600; 58 S. J. 852
— Evans, P.
Hospital Ship — Suspicious Movements —
Signaillng Lights — Destruction of Ship's
Papers.1 — An enemy vessel, certified by the
German Government as an auxiliary hospital
ship, and adapted (although inadequately) as
such, was encountered off the Dutch coast,
near the Haaks lightship, by British warships.
She was taken into port to be searched, and
was afterwards seized as prize. She had on
board 1,220 Yery's lights, and rockets and
flares suitable for signalling, of which no satis-
factory account was given by her. When
about to be boarded by an officer from one of
the warships, a number of books and docu-
ments were thrown overboard, and subsequently
others were burnt ; and she had shortly before
sent a wireless message in code to the German
signalling station at Norddeich. She had
made two unexplained voyages from the
mouth of the Elbe to Heligoland. On the
only occasion on which she went out to render
assistance after a German naval disaster
forty-eight hours elapsed before she arrived on
the scene, the distance to be covered being
sixty miles ; and during the ten weeks that
the war had lasted no sick, wounded, or ship-
wrecked person had been received on board.
There was evidence that she had increased
speed to evade search by a British submarine.
According to her log, her full speed was at
least two knots more than was sworn to by her
witnesses, and there were other matters not
satisfactorily explained : — Held, that the
vessel was not adapted and used for the sole
purpose of affording aid to the wounded, sick,
and shipwrecked ; that she was adapted and
used as a signalling ship for military purposes ;
that therefore she had forfeited the protection
afforded to hospital ships by Convention X. of
the Hague Conference, 1907; and that she
must be condemned as lawful prize. The
Ophelia, 84 L. J. P. 131; [1915] P. 129;
1 P. Cas. 210; 31 T. L. E. 452— Evans, P.
The serious view taken by Prize Courts of
the destruction of ship's papers, and the
doctrines laid down with reference thereto, are
specially applicable to vessels claiming to be
hospital ships, whose papers should be per-
fectly innocent ; and if the ship's papers are
not preserved, the inference is strong that if
produced they would afford evidence of guilty
practices. lb.
Enemy Yacht — Outbreak of War — Deten-
tion in British Port — Days of Grace —
Condemnation — Sixth Hague Convention —
Violation of its Provisions by the Enemy —
— Effect — Liability for Repairs — Dry Dock-
ing.' -The provisions of the Sixth Hague
Convention, with regard to days of grace, are
intended to protect vessels engaged in com-
merce, and do not afford protection to enemy
yachts. Therefore a German yacht detained
in a British port on the outbreak of war.
according to the ordinary law by which enemy
property seized in port is confiscable, is sub-
ject to condemnation. Claims in respect of
repairs executed to the yacht before the deten-
tion, and in respect of dry docking, afterwards
acceded to by the Crown as an act of grace.
Qu(BTe, whether a belligerent Power which
has violated many bf the provisions of the
Hague Convention can claim the protection of
any of its provisions from other contracting
parties. The Germania, 1 P. Cas. 573;
60 S. J. 76; 32 T. L. E. 68— Evans, P.
Submarine Signalling Apparatus — Lease to
Shipowners — " Neutral goods."] — A submarine
signalling apparatus, fixed partly in the fore
hold and partly in the chart room of an
enemy's ship, was claimed by a neutral com-
pany who, as they alleged, leased the apparatus
to the owners of the ship on terms which pro-
vided that rent should be paid and that the
apparatus should remain the sole and exclusive
property of the company : — Held, that the
apparatus was not " neutral goods " under
enemy's flag within article 3 of the Declaration
of Paris, 1856, as " goods " there meant mer-
chandise, which this was not; and that this
apparatus being a part of the ship must in the
Prize Court be condemned with the ship.
The Schlesien, 84 L. J. P. 33; 1 P. Cas. 13;
112 L. T. 353; 59 S. J. 163; 31 T. L. E. 89—
Evans, P.
Ship in British Port — Commencement of
Hostilities — Order in Council — Days of Grace
— Less Favourable Treatment by Enemy —
Detention.] — A German merchant steamship
was lying in a British port when war was
declared to exist between Great Britain and
Germany, and was seized on behalf of the
Crown by the Collector of Customs of the port
as a droit of Admiralty. Article 1 of Con-
vention VI. of the Second Hague Peace Con-
ference, 1907, provided that when a belligerent
merchant ship was at the commencement of
hostilities in an enemy port, it was desirable
that it should be allowed to depart freely,
either immediately or after a reasonable
number of days of grace ; and article 2 pro-
vided that a merchant ship, which was not
allowed to leave, might not be confiscated, but
the belligerent might merely detain it on
condition of restoring it after the war. By
Order in Council, dated August 4, 1914, it was
ordered that enemy merchant ships, which at
the outbreak of hostilities were in any British
port, should be allowed till August 14 for
departing from such port, if information was
obtained that the treatment of British merchant
ships in an enemy port was not less favourable.
This information was not obtained by the
British Government, so that effect could not
be given to article 1 of Convention VI. The
Court was asked on behalf of the Procurator-
General for an order for the detention of the
ship : — Held, that an order should be made
that the ship belonged at the time of seizure
to enemies of the Crown, and had been properly
seized by the officers of the Crown, and was to
be detained bv the Marshal till further order.
The Chile, 84 L. J. P. 1: [1914] P. 212;
1 P. Cas. 1 ; 112 L. T. 248 ; 12 Asp. M.C. 598 ;
58 S. J. 852; 31 T. L. E. 3— Evans, P.
1697
WAR.
1698
Sale before War — Enemy Flag — Invalid
Transfer — Detention — British Ship.] — On
August 1, 1914, a German company, owning
two German sailing vessels, both at sea and
bound for ports in the United Kingdom, offered
by telegram to sell them to an English com-
pany, which telegraphed acceptance. The
vessels arrived in the ports, and were
seized by Customs officers after war had
been declared on August 4 between Great
Britain and Germany. The English com-
pany claimed the vessels as having become
their property by a valid transfer : — Held,
that the vessels were enemy property —
first, because the nationality of a vessel is
determined by the flag which she is entitled to
fly, whether at sea or in port, and that the flag
which these vessels were entitled to fly was
German; and secondly, because the alleged
transfer was not valid, but was incomplete in
certain respects, and amounted in substance to
a mere arrangement by the German company
that the vessels should be called British ships ;
and that the claim must be dismissed and an
order made for the detention of the two vessels.
The Tommi; The Rothersand, 84 L. J. P. 35;
[1914] P. 251; 1 P. Gas. 16; 112 L. T. 257;
59 S. J. 26; 31 T. L. E. 15— Evans. P.
Capture at Sea or in Port — Entry to Escape
Capture — Whether Protected from Confisca-
tion.]— Held, on the facts, that after the out-
break of hostilities the German steamer Belgia
was captured at sea and not in port and was
therefore liable to condemnation. Qucere,
whether a vessel entering a port to avoid
possible capture is protected from confiscation
by articles 1 and 2 of the Sixth Hague Con-
I ventiou. The Belgia, 1 P. Cas. 303; 59 S. J.
561; 31 T. L. R. 490— Evans, P.
" Port " — Detention or Condemnation.]
— An enemy merchant ship was captured on
August 5, 1914, at a place in the Firth of
Forth, which was not within the limits of a
" port " in the usual commercial sense, but
was within the limits of the " port " of Leith
for Customs purposes : — Held, that the word
" port " in the Sixth Hague Convention, 1907,
did not mean the fiscal port, but must be con-
strued in its usual and limited popular or
commercial sense as a place where ships are
in the habit of coming for the purpose of load-
ing or unloading, embarking or disembarking;
and that the vessel, when captured, was not,
within the meaning of article 2 of this Con-
vention, at the commencement of hostilities in
an enemy " port " and not allowed to leave,
sj as to be subject only to detention, but was
encountered " at sea " within the meaning of
article 3 of this Convention, of which this
vessel could not claim the benefit, and that the
vessel must therefore be condemned as prize.
The Marie Glaeser, 84 L. J. P. 8; [1914]
P. 218; 1 P. Cas. 38; 112 L. T. 251; 12 Asp.
M.C. 601; 59 S. J. 8; 31 T. L. R. 8— Evans,
P.
Requisition of Prize by Crown — Order for
Delivery.]— Order XXIX. of the Prize Court
Rules, which was authorised by an Order in
Council dated March 23, 1915, and which
provides that " Where it is made to appear to
the Judge . . . that it is desired to requisition
on behalf of His Majesty a ship in respect of
which no final decree of condemnation has
been made, he shall order that the ship shall
be appraised, and that upon an undertaking
being given in accordance with Rule 5 of this
Order the ship shall be released and delivered
to the Crown," does not violate the law of
nations and is not ultra vires. The Zamora,
1 P. Cas. 309; 113 L. T. 649; .59 S. .J. 614;
31 T. L. R. 513— Evans, P.
Practice — Enemy Shipowner — Resident in
Enemy Country — Affidavit as to Appearance
— Insufficiency.] — The writ in this cause was
in the prescribed form, and had been issued
by the Procurator-General, and was duly
advertised. It was addressed to the owners
and parties interested in the ship, and com-
manded them to cause an appearance to be
entered for them. Counsel for the German
owners, resident in Germany, contended that
they were entitled to appear, but the affidavit
as to appearance, which was made by a
member of a London firm described as agents
of the owners, did not state who were the
owners of the vessel, or any special circum-
stances entitling them to appear : — Held, that
the affidavit was wholly insufficient to entitle
the enemy owners to appear. The Chile,
84 L. J. P. 1; [1914] P. 212; 1 P. Cas. 1;
112 L. T. 248; 12 Asp. M.C. 598; 58 S. J.
852; 31 T. L. R. 3— Evans, P.
Dock Owners — Liberty to Apply.] — Dock
owners, to whom considerable sums had
accrued, and were accruing, in respect of the
ship, were given liberty to apply to the
Court. 76.
Right to Appear — Enemy Merchant Ship
— Enemy Owner.] — Apart from the new prac-
tice of the Prize Court, an enemy shipowner
who alleges no suspension of his hostile
character has no right to appear in the Court
to argue that his ship, though enemy pro-
perty, is not subject to condemnation, but
only to detention under a convention of the
Hague Peace Conference, 1907. The future
practice of the Prize Court shall be that
any alien enemy, claiming any protection,
privilege, or relief under any such convention,
shall be entitled to appear as a claimant and
argue his claim before the Court. He should
state the grounds of his claim in his affidavit
to lead appearance. The Moice, 84 L. J. P.
57; [1915] P. 1; 1 P. Cas. 60; 112 L. T. 261;
59 S. J. 76; 31 T. L. R. 46— Evans, P. See
The Marie Glaeser, supra.
Claim for Necessaries — Arrest — Subse-
quent Seizure as Prize.] — In a Prize Court
the rights of the captor take precedence over
claims for necessaries, even where the claim-
ants for necessaries have arrested the vessel
before she was seized as prize. Tlie Tergestea,
59 S. J. 530; 31 T. L. R. 180— Evans, P.
Legal Evidence of Capture — Other Evi-
dence.] — The commander of one of His
Majesty's ships who cannot take a captured
vessel into port, or put a prize crew on board,
ought to enter the time and place of capture
in the vessel's log, or make a declaration in
54
1699
WAE.
1700
the presence of the vessel's master, so as to
provide direct legal evidence thereof. But in
the absence of such evidence the Court can
act on other evidence or reliable information,
and draw inferences therefrom under the Prize
Court Rules, 1914. Order XV. rules 1, 2 (e).
The Berlin, 84 L. J. P. 42; [1914] P. 265;
1 P. Cas. 29; 112 L. T. 259; 12 Asp. M.C.
607; 59 S. J. 59; 31 T. L. E. 38— Evans, P.
ii. Cargo.
Postal Packet— Parcel Post.]— Article 1 of
the Hague Conventions, 1907, Number XI.,
while exempting postal correspondence from
capture, does not apply to parcel post. The
Simla, 1 P. Cas. 281; 59 S. J. 546— Evans, P.
Enemy Goods in British Ship — Liability to
Capture.^ — Enemy goods are not exempt from
capture in a British port by reason of the fact
that thev are on board a British ship. The
AldwoHh {Cargo ex), 59 S. J. 75; 31 T. L. E.
36— Evans, P.
Enemy Character — British Company —
Enemy Directors and Shareholders.] — Goods
consigned to a duly incorporated British com-
pany, to which the property has passed, are
not confiscable as prize by reason of the fact
that all the directors and shareholders of the
company are enemy subjects, or domiciled in
an enemy country. Continental Tyre and
Rubber Co. v. Daimler Co.; Same v. Tilling,
Lim. (84 L. J. K.B. 926: [19151 1 K.B. 893).
applied. The Poona, 84 L. ~ J. P. 150:
1 P. Cas. 275: 112 L. T, 782; 59 S. J. 511:
31 T. L. E. 411— Evans, P.
Queer e, whether a British company, com-
posed entirely of alien enemies, can own a
British ship. Ih.
Presumption as to Cargo on Enemy Vessel
— Burden of Proof.] — According to prize law,
goods on an enemy vessel consigned to an
enemy port are prima facie enemy goods, and
the onus is on claimants who allege that the
goods belong to them, as neutrals, to satisfy
the Court with clear evidence. The Roland,
84 L. J. P. 127 ; 1 P. Cas. 188 ; 31 T. L. R.
357— Evans, P.
Goods Afloat — Bona Fide Sale by Enemy to
Neutral without Contemplation of War — Out-
break of War.]— Where the owner of goods
:i float botia fide sells them without contempla-
tion of war between his country and another
country, and after completion war breaks out
between those countries while the goods are
still in transitu, but the country of the
purchaser is neutral, the goods are not subject
to capture as prize bv that other country's
ships of war. The Soiithfield, 1 P. Cas. 332;
113 L. T. 655 ; 59 S. J. 681 : 31 T. L. R. 577
—Evans, P.
Continuous Voyage- Absolute Contraband-
Conditional Contraband — Ostensible Neutral
Destination — Real Destination an Enemy
Government — Condemnation. ] — Four vessels
belonging to Scandinavians started in October
and November, 1914, on voyages from New
York to Copenhagen with cargoes of lard, hog
and meat products, oil stocks, wheat, and
other goods. They were captured by the
British on the voyage, and their cargoes
were seized on the ground that they were
conditional contraband which was alleged to
be confiscable in the circumstances, with the
exception of one cargo of rubber, which was
seized as absolute contraband : — Held, that
on the facts some of the goods were intended
bona fide for Danish purchasers, but other
goods were intended for the German Govern-
ment, and that as the doc-trine of " continuous
transportation " applied to conditional as well
as to absolute contraband and covered trans-
port by land until the real, as distinguished
from the ostensible, destination of the goods
was reached, the goods intended for the
German Government must be condemned.
The Kim (No. 2), The Alfred Nobel, The
Bjbrnstjertie Bjomson, The Fridlaiid, [1915]
P. 215 ; 1 P. Cas. 405 ; 60 S. J. 9 ; 32 T. L. E.
10— Evans, P.
Contract of Sale c.i.f. — Shipment During
Peace — War Intervening on Voyage — Seizure
as Prize — Refusal of Documents — Test for Con-
demnation— Passing of Property or Loss by
Seizure — Cargo in British Vessel not Excused.]
— ^Yhen goods are contracted to be sold, and
are shipped without any anticipation of
imminent war, and are taken as prize after
war has intervened, the cardinal principle is
that they are not subject to condemnation
unless under the contract the property in the
goods has at the time of seizure passed to the
enemy. The Miramichi, 84 L. J. P. 105 ;
[1915] P. 71; 1 P. Cas. 137; 112 L. T. 349;
59 S. J. 107 ; 31 T. L. E. 72— Evans, P.
Enemy cargo shipped without any anticipa-
tion of imminent war, and taken as prize in
port or at sea after war has intervened, does
not escape condemnation because it is in a
British vessel. lb.
Before any anticipation of imminent war,
sellers made a c.i.f. contract of sale of wheat
to buyers, and in fulfilment of the contract
sub-contracted with a merchant to buy wheat
shipped by him and received from him the
bill of lading for it, which was indorsed
generally. War intervened during the voyage.
The sellers were neutrals, and the port of
destination was neutral, but the buyers to
whom the goods were to be delivered at the
port of destination were enemies in the enemy
country. The sellers' bankers, who were
neutrals, had discounted the bill of exchange
drawn by the sellers on the buyers, and had
forwarded it and the bill of exchange and the
certificates of insurance to a bank in the
enemy country for tender of the latter docu-
ments against acceptance of the bill of
exchange. The vessel was British and was
diverted to a British port, where the wheat
was seized by the Crown as prize. Shortly
after the seizure the enemy buyers in the
enemy country refused to take up the docu-
ments. The sellers claimed the wheat as
their property. It was contended for the
Crown that the test for condemnation was
whether the enemy or the neutral would suffer
the loss if the wheat was condemned, and
that, as the sellers had a right of payment
against the buyers and had only a jus dis-
1701
WAR.
1702
ponendi as liolders of a bill of lading not
indorsed to them, they could not recover the
wheat : — Held, disallowing the contention of
the Crown, that as the goods were shipped
without any anticipation of imminent war, the
test for condemnation was as to whether
the property in the wheat had at the time of
seizure passed to the enemy, and that, as it
had not at that time passed to the buyers and
would not so pass until they took up the docu-
ments, the wheat remained the property of the
sellers and must be restored to them. lb.
Goods when Shipped to "selling agents" —
Passing of Property.] — Where goods are
shipped by the vendors to persons, described as
" selling agents," who are paid by commission
and to whom the bills of lading are indorsed, and
the vendors do not reserve any right of disposal
of the goods after sliipment, the question
whether the property in the goods has passed
tD the " selling agents " depends upon inten-
tion and is a question of fact. An American
company shipped in July, 1914, at New York
for Hamburg on a German steamer a consign-
ment of pig lead under bills of lading which
were made out to the order of the shippers at
Hamburg and were indorsed to a German
company or order and were sent forward to the
German company. The goods were shipped
under an arrangement between the American
company and the German company which
secured to the former the benefit of a previous
agreement in which the German company were
described as " selling agents," and a draft on
demand for the provisional price, as arranged,
was sent to an English company, which was
connected with the arrangement. On August 5,
1914, the goods were seized as prize, and on
presentation of the draft on August 8, 1914,
the English company refused, owing to the
war, to pay it. The German company were
not accountable to the American company as
principals for the sum actually received by
them as agents from the purchasers to whom
they sold the goods, but only for a sum to be
fixed by a computation of sales of pig lead
supplied by other producers : — Held, that on
the facts the property in the goods had passed
to the German company and therefore they
were enemy goods. TJie Kronprinzessin
Cecilie, 1 P. Cas. 623; 32 T. L. E. 139—
Evans, P.
Ante-bellum Contract of Sale — Post-bellum
Shipment — Passing of Property — Allied Ship
— Trading with the Enemy — Freight.] — Under
a contract of July 13, 1914, made between
the sellers, a firm of German merchants at
Hamburg, with a branch at Valparaiso, and
the buyers, a Dutch firm at Veendam,
Holland, a cargo of nitrate of soda was loaded
at Taltal, Chili, in a Russian sailing ship,
which had been chartered by the German firm
to carry the cargo to Delfzil, Holland. Load-
ing began in July, but was not completed
until after the outbreak of war. The bills
of lading, dated August 6, were made out to
the order of the sellers. The ship sailed on
August 29. On December 6 she arrived at
Plymouth, where the cargo was seized as
enemy property. The contract of sale pro-
vided that payment, to include cost and
freight, was due ninety days after receipt of
the first bill of lading, and was to be paid
three days after maturity, or, in case of an
earlier arrival of the ship, against acceptance
of the documents. The buyers were to pro-
vide a banker's guarantee for 5,000L for the
due performance of the contract, the value of
the cargo being 22,115/. Insurance, including
war risk, was to be covered by the sellers,
the buyers to accept the policy against pay-
ment of the premium. The buyers provided
the banker's guarantee, and deposited the pur-
chase price in the sellers' bank with instruc-
tions not to part with it until all the bills of
lading had arrived. The bills of lading,
which were made out in sets of three copies
each, were forwarded to the sellers' house in
Hamburg. The first copies arrived on Sep-
tember 9, and the third arrived by January 25,
1915 ; but they remained at the sellers' bank
in Hamburg, and were not taken up until
after the cargo had been seized. It was con-
tended by the Dutch buyers that the property
had passed to them : — Held, that the prima
facie presumption — arising from the fact of
the bills of lading being to the order of the
sellers — that the sellers had reserved the right
of disposal, w^as not rebutted by the require-
ment of the banker's guarantee ; that the
parties did not intend the property in the
goods to pass to the buyers until the documents
were accepted and the price paid ; that if the
property did not pass on shipment it could
not pass while the goods were in transitu bo
as to defeat the rights of belligerents ; and
that at the time of seizure the property was
in the enemy sellers, and the goods must be
condemned. Held, further, that on the out-
break of war between Russia and Germany
it became illegal for the Russian shipowners
to continue to perform their contract with the
German charterers; that, after August 4, when
Germany became the common enemy of
Russia and of Great Britain, a British Prize
Court had power to deal with a Russian vessel
engaged in illegal trading ; and that strictly
the vessel was liable to confiscation, and,
although the Crown did not ask for this
penalty, that a claim of the Russian ship-
owners for freight and expenses must be dis-
allowed. The Parchim, 1 P. Cas. 579—
Evans, P.
Commercial Intercourse between Subjects of
an Allied and an Enemy State — Obligations of
Allied Subjects — Bona Fides — Ally's Cargo
Condemned.] — In May, 1914, a French com-
pany contracted to sell to a German firm at
Frankfurt a quantity of silver lead f.o.b.
Ergasteria, in Greece. In pursuance of the
contract the French company chartered a
steamer for a voyage to Antwerp and New-
castle to carry the lead to the purchasers from
the German firm. Before the loading, which
began on July 29, was finished, war broke
out between Great Britain and her allies and
Germany. On August 11 the vessel sailed.
The French company then entered into nego-
tiations with the London office of the German
firm as regards the delivery of the lead, but on
August 23 that of&ce was closed by order of
the Home Secretary, the negotiations fell
through, and the French company diverted
1703
WAK.
1704
the vessel to Swansea, where the cargo, the
property in which admittedly remained in the
French company, was seized as prize : — Held,
that the facts shewed that after the outbreak
of war the French company, although acting
in good faith, had had commercial intercourse
with the German firm which amounted to a
trading with the enemy ; and the subjects of
an allied State being under the same obliga-
tions to Great Britain as regards intercourse
with the enemy as British subjects, that
the silver lead must be condemned. The
Panariellos, 84 L. J. P. 140; 1 P. Cas. 195;
112 L. T. 777 ; 59 S. J. 399 ; 31 T. L. K. 326
— Evans, P.
Submarine Signalling Apparatus — Lease to
Shipowners — " Neutral goods."] — A sub-
marine signalling apparatus, fixed partly in
the fore hold and partly in the chart room of
an enemy's ship, was claimed by a neutral
company who, as they alleged, leased the
apparatus to the owners of the ship on terms
which provided that rent should be paid and
that the apparatus should remain the sole
and exclusive property of the company : —
Held, that the apparatus was not " neutral
goods " under enemy's flag within article 3
of the Declaration of Paris, 1856, as " goods "
there meant merchandise, which this was not;
and that this apparatus being a part of the
ship must in the Prize Court be condemned
with the ship. The Schlesien, 84 L. J. P. 33;
1 P. Cas. 13; 112 L. T. 353; 59 S. J. 163;
31 T. L. R. 89— Evans, P.
Cargo of Oil — Discharge into Tanks — Droits
of Admiralty — Seizure " on land " or in
" port " — Enemy National Character — German
Company — International Combine — Notice of
Detention — Ambiguity — Lawful Seizure.] — A
cargo of oil was shipped on a British steam-
ship at Port Arthur, Texas, for delivery at
Hamburg. The oil was the property of a
German incorporated company, which was an
international combine, and most of its shares
were held by incorporated companies of nations
which were not enemies. During the voyage
and after the outbreak of war with Germany
the vessel, owing to a request of the
Admiralty, was diverted eventually to London
and was moored at a wharf. The oil was dis-
charged into tanks belonging to the whar-
fingers, one hundred to one hundred and fifty
yards away from the wharf, by means of the
ship's pumps and connecting pipes. Notice
by an officer of Customs that the whole cargo
was " placed under detention " was delivered
on board when most of the oil had been dis-
charged, but the remaining oil was after-
wards discharged into the tanks : — Field, first,
that the whole cargo of oil should be con-
demned as droits of Admiralty, and that the
case was within the jurisdiction of the Prize
Courts ; that the oil in the tanks was seizable
(!ven if it was strictly " on land " and not in
" port," but that the tanks were oil ware-
houses and the oil therein was seized in
" port " ; secondly, that the German company,
l)eing incorporated and resident in Germany,
was of an enemy national character, not-
withstanding its international position ; and
thirdly, that the Customs notice that the
cargo was placed under detention was a lawful
seizure of the oil as droits of Admiralty, and
the contention that the notice was too
ambiguous was disallowed. The Roumanian,
84 L. J. P. i65; [1915] P. 2G ; 1 P. Cas. 75;
112 L. T. 464; 59 S. J. 206; 31 T. L. R. Ill
Evans, P. Affirmed, 1 P. Cas. 5-36; 60 S. J.
58; 32 T. L. R. 98— P.C.
Enemy Owners — Alleged Ownership by
Partnership — One Partner an Alien Enemy —
Failure of British Partners to Sever Connec-
tion— Condemnation.] —Two consignments,
consisting of zinc concentrates and leady
concentrates, were shipped in a British steam-
ship by the Australian Metal Co., Lim., a
British company, at Port Pirie before the war
to the order of the shippers or their assigns
at Antwerp, the vessel having been chartered
by the Metallgesellschaft, a German company.
The goods were seized as prize at Brixham
on September 23, 1914, and were claimed by
Merton & Co., Lim., a British company,
because they had accepted the shippers' drafts
for the value of the goods, had taken up the
shipping documents, and had paid the freight.
In the alternative Merton & Co. and the
Australian Metal Co. and Vivian & Co. (a
British partnership) each claimed a one-fourth
share in the leady concentrates, as three
members of a pool, of which the other
member was the Metallgesellschaft. The
Compagnie des Minerals, a Belgian company,
also claimed the zinc concentrates as the
owners, if it should be held that the property
in them had passed from Merton & Co. It
was alleged by Merton & Co. that the zinc
concentrates were intended to be sold to the
Compagnie des Minerals, but that as this
company had not paid for them the property
belonged to Merton & Co. The Belgian com-
pany was formed mainly by the German
company : — Held, on the facts, that the zinc
concentrates belonged to the Metallgesell-
schaft, and must be condemned as enemy
property. Held further, on the facts, that
the Metallgesellschaft were the owners of
the leady concentrates, although they had to
account to the three other members of the
pool for the ultimate profits, and that
therefore the leady concentrates must be
condemned, and that, even if the pool was
a partnership consisting of three British
partners and one enemy partner, the goods
being the joint property of the four partners,
nevertheless, as the three British partners
had not taken steps to sever their connection
with the enemy partner by reason of the
outbreak of war, their shares in the goods
must on this footing also suffer condemnation.
The Manningtry, 1 P. Cas. 497; 60 S. J. 75;
32 T. L. R. 36— Evans, P.
Enemy Cargo — Claim of Pledgees — Accrual
of Right to Sell.]— The pledgees of bills of
lading of enemy cargo, which has been pro-
perly taken as prize, have no claim which is
recognised in the Prize Court ; and though the
right to sell has accrued to the pledgees by
default, until they do sell the general property
in the goods remains in the pledgors, who
have at any time the right to redeem. The
Odessa: The Cape Corso, 84 L. J. P. 112;
1705
WAR.
1706
[1915] P. 52; 1 P. Cas. 1G3; 112 L. T. 473;
59 S. J. 189; 31 T. L. E. 148— Evans, P.
Affirmed, 1 P. Cas. 554 ; 32 T. L. R. 103— P.C.
Consignment to British Port.] — The
rights of mortgagees of enemy goods captured
as prize are not regarded in a Prize Court,
even though the goods have been consigned
to a British port, and the mortgagees are
persons who have arranged to sell them on
commission in this country. The Odessa
(supra) followed. The Linaria, 69 S. J. 530;
31 T. L. R. 396— Evans. P.
Pledge to Neutral Bankers — Documents
of Title Held by British Agents— Effect of
Outbreak of War— Right of Pledgors to
Redeem.] — The enemy owners of goods seized
as prize, who have pledged them to neutral
bankers before war, do not lose their right to
redeem the goods by reason of the outbreak
of war, although the documents of title to the
goods may be held by British agents of the
bankers, who are prohibited from commercial
intercourse with the pledgors ; and the bankers
are merely in the position of pledgees whose
claims cannot be recognised in the Prize Court.
The Eumaeus, 1 P. Cas. 605; 60 S. J. 605;
32 T. L. R. 125— Evans, P.
Default of Pledgors — Exercise of Power
of Sale by Pledgees — Whether Goods Subject
to Seizure.] — Certain enemy subjects con-
tracted before the war to sell to a British firm
a quantity of vegetable tallow, and it was
shipped in a British ship at Hankow for
Liverpool before the war. The vendors
pledged the goods before the war to Japanese
bankers, who were indorsees and holders of
the bills of lading at the time of the shipment
of the goods and of their arrival at Liverpool,
which took place after the declaration of war.
The purchasers declined to take up the docu-
ments or to take delivery of the goods from
enemy subjects, and thereupon the pledgees,
having become, owing to the default of the
pledgors, entitled to exercise their power of
sale, contracted to sell the goods to a British
firm. The goods were subsequently seized by
the Customs officer at Liverpool on the ground
that they were enemy property : — Held, that,
whether or not the property in the goods had
passed from the pledgees to the firm which
purchased the goods from them, the right of
the enemy pledgors to redeem the goods was
lost when the pledgees contracted to sell
them, and therefore the goods were not subject
to seizure as enemv goods. The Ningchow,
1 P. Cas. 288; 31 T. L. R. 470— Evans, P.
Claim for Freight — Cargo in British Ship
Condemned.] — When enemy cargo, loaded
before war for carriage on a British ship,
is seized and ordered to be discharged
in a British port, and is condemned as
prize, such a sum is to be allowed out of
the prize to the shipowners for freight as
is fair and reasonable in the circumstances.
Regard is to be bad to the agreed freight —
though this is not conclusive — to the extent to
which the voyage has been made, the labour
and cost expended or any special charges
incurred in respect of the cargo before seizure
and discharge, and to the benefit to the cargo
from carriage until seizure and discharge. No
sum is to be allowed, unless in special circum-
stances, for inconvenience or delay to the ship
as the result of her diversion or detention for
the seizure and discharge of her enemy cargo.
The Juno, 84 L. J. P. 154; 1 P. Cas. 151;
112 L. T. 471; 59 S. J. 251; 31 T. L. R. 131
— Evans, P.
Certain parcels of German cargo were loaded
shortly before the war on a British ship at
Bristol for delivery at Amsterdam, and were
destined for places in Germany. The ship
proceeded to Swansea to load more cargo, and
was kept there by her owners. After war had
broken out between Great Britain and Ger-
many these parcels were seized by the Customs
officer at Swansea, and ordered to be dis-
charged, and were condemned as prize. The
shipowners claimed to receive out of the prize
full freight and the expenses of discharging
these parcels and of shifting the ship to a
discharging berth for the purpose : — Held,
that the claim to some freight and to the other
expenses should be allowed, and a reference
was ordered to ascertain the amount on the
principles above stated. lb.
British Vessel — Shipowners' Right to
Freight on Cargo — Seizure as Prize before
Reaching Port of Destination — Subsequent
Release.] — In the Prize Court shipowners have
a right to have some freight on cargo which
has been seized as prize before reaching its
port of destination, but which has been subse-
quently released. The Friends (Edw. Adm.
346) considered. The lolo, 1 P. Cas. 291;
113 L. T. 604; 59 S. J. 545; 31 T. L. R. 474
— Evans, P.
The quantum of freight is to be decided on
the principles laid down in The Juno
(supra). Tlte Corsican Prince (84 L. J. P. 121 ;
1 P. Cas. 178) approved. lb.
Enemy Ship — Released Cargo.] — A
captor is not entitled to freight from the
owners of cargo which has been brought before
the Prize Court and released, unless the cargo
has been carried to its port of destination
according to the intent of the contracting
parties. The Roland, 84 L. J. P. 127;
1 P. Cas. 188; 31 T. L. R. 357— Evans, P.
Condemnation.] — Where freight is paid
on goods belonging to alien enemies with
knowledge that the owners are alien enemies,
and with the object of preserving the goods
for their benefit, the persons making the pay-
ment have no right, in the event of the cargo
being seized by the Crown and condemned as
prize, to recover back the freight from the ship-
owners or to obtain from the Crown payment
out of the proceeds of the cargo. The Bilbster,
1 P. Cas. 507rt. ; 60 S. J. 107 ; 32 T. L. R. 35
—Evans. P.
Contraband — Condemnation — Demur-
rage.]— A cargo of iron ore destined for
Krupp's works in Germany was shipped on
September 16, 1914, by a Spanish firm in a
Dutch steamer belonging to a Dutch company
from Si)ain to Rotterdam. Gn September 19
the vessel when off the Isle of Wight was
1707
WAE.
1708
turned into port by a British warship for the
examination of her cargo. On September 21
iron ore was placed on the list of conditional
contraband. The vessel arrived at Portsmouth
for examination on September 26, and the
cargo was seized as prize on October 4. The
ship was afterwards sent to Middlesbrough and
was released, and was ultimately sunk by the
Germans. On an application by the Crown
for the condemnation of the cargo the ship-
owners, who were neutrals, claimed freight
and demurrage, but the Crown contended that
as they were acting as agents for Krupp's
forwarding and shipping agents they were not
entitled thereto :—-Held, that as the effective
seizure took place after iron ore had been made
contraband, it was liable to condemnation;
that as the cargo was not contraband at the
time when it was shipped and as on the facts
the shipowners' prima facie claim to freight
had not been displaced, they were entitled to
freight ; but that they were not entitled to
demurrage, as the detention of the ship was a
misfortune to which neutrals were liable in
time of war. The Kativyk. 1 P. Cas. 282;
31 T. L. R. 448— Evans, P.
— Claim for Delay — Contribution to General
Average Loss.] — By a contract made m 1913
an English company agreed to sell to a
German company a quantity of chrome ore
and in June. 1914, the ore was shipped
from New Caledonia by a Norwegian sailing
vessel, chartered by the German company, the
bill of lading being made out in favour of
the English company, or order, for delivery
at Rotterdam. In the same month the buyers
paid the sellers half the price plus a sum,
advanced for the ship. The vessel put into
Pernambuco in September, 1914, and there
the master received instructions to go to a
Swedish port via the North of Scotland. In
October, 1914, chrome ore was declared to be
absolute contraband by an Order in Council
which adopted some of the terms of the
Declaration of London without excepting
article 43, which provides that if a vessel
is encountered at sea while unaware of the
declaration of contraband applying to her
cargo the contraband cannot be condemned
except on payment of compensation. In
November, 1914, the vessel was boarded by
British naval officers and taken by a prize
crew to Glasgow. In proceedings for the
condemnation of the cargo it was claimed
both by the sellers and by a Swedish com-
pany, the latter alleging that it had been
bought for them by the German company as
their agents, and the shipowners made a
claim for freight, loss by delay, and contri-
bution from the cargo for a general average
expense in putting into Pernambuco, but no
claim was made by the German company.
There was no evidence that up to the capture
the vessel was aware of the declaration of
contraband applying to her cargo : — Held,
that the German company were not in fact
agents for the Swedish company, and that
at the time of capture the property in the
goods had passed to the German company,
and the goods must be condemned, and that
no compensation could be awarded to the
German company, as they had not claimed
it and as they had taken part in a dishonest
attempt to persuade the Court that they were
only agents for a neutral company. Held,
further, that though the shipowners were not
entitled to make any claim for delay of the
ship, yet they were entitled to freight, and
inasmuch as a claim for general average by
the ship against the cargo existed before
capture, they were also entitled to a contri-
bution from the cargo to general average loss
on the assumption that they could make out
a case of general average loss. Semhle,
article 43 of the Declaration of London was
only intended for the protection of neutrals
and does not prevent contraband belonging
to the enemy from being liable to condemna-
tion without compensation. The Sorfareren,
1 P. Cas. 589 ; 32 T. L. R. 108— Evans, P.
British Ship — Deviation from Voyage — Con-
sequent Outlays — Claim by Owners.] — Where
a British ship, on a voyage to a German port,
has been diverted by the Admiralty on account
of the war to a port in the United Kingdom,
the owners are not entitled to compensation
for outlays incurred by them in consequence
of such diversion or for the additional cost
of discharging the cargo at such port as com-
pared with the cost of discharging it at the
German port. The Tredegar Hall, 1 P. Cas.
492; 60 S. J. 45; .32 T. L. R. 9— Evans, P.
Claimant — Enemy Domicil — Trading in
Neutral or British Territory.] — The fact that
a person who is domiciled in an enemy country
has a house of trade in a neutral country or in
British territory will not enable him to avoid
the disability, imposed by his enemy domicil,
of being disentitled in the Prize Court to
succeed in a claim with respect to goods seized
as prize. The Clan Grant, 1 P. Cas. 272;
59 S. J. 430; 31 T. L. R. 321— Evans, P.
Goods Owned by Enemy with Neutral
Domicil — Change of Domicil before Seizure —
Condemnation.] — Two consignments of copper
belonging to one H., a German subject
carrying on trade in Chile, were shipped
from that country to Liverpool, and were
seized as prize. H. had left Chile before the
seizure, and he appeared to have been in
Switzerland not long after it : — Held, that
although the country to which H. appeared
to have betaken himself was, equally with
Chile, a neutral country, yet he had, by
leaving Chile, lost the neutral trade domicil
which he had acquired by residence there, and
that he had thereby revested himself with his
original character as an enemy, and therefore
the goods were liable to condemnation. The
Flamenco. The Orduna, 1 P. Cas. 509;
60 S. J. 107; 32 T. L. R. 53— Evans, P.
Goods — Neutral Property — Requisition
by Crown.] — By Order I. rule 2 of the
Prize Court Rules, 1914, " Unless the contrary
intention appears, the provisions of these Rules
relative to ships shall extend and apply,
tnutatis mutandis, to goods." By Order XXIX.
rule 1, where the Lords of the Admiralty desire
to requisition a ship and there is no reason
to believe that the ship is entitled to be
released, the Judge shall order the ship to be
1709
WAK.
1710
appraised and to be delivered to them, " Pro-
vided that no order shall be made by the Judge
under this rule in respect of a ship which he
considers there is good reason to believe to be
neutral property."' By rule 3, where a ship
is required forthwith for the service of the
Crown, a Judge can order it to be forthwith
released to the Lords of the Admiralty without
appraisement. Certain copper was shipped at
New York by an American company on board
a Norwegian vessel and was consigned to
Sweden, and was bought afloat by Swedish
subjects under a contract guaranteeing that
it was for consumption in Norway and /or
Sweden. While the vessel was at sea copper
was declared absolutely contraband, and the
copper in question was afterwards seized at
sea and brought to Liverpool, and the Crown
issued a writ in prize claiming that the goods
were liable to confiscation. Subsequently an
order was made ex parte by the Registrar
instructing the Marshal to release the copper
to the Lords of the Admiralty, who wished to
requisition it. On an application to discharge
the order, — Held, that though there was suffi-
cient doubt as to whether the goods were
entitled to be released to prevent the order
from being bad on the ground that there was
reason to believe that they were so entitled,
yet as they were neutral property it was impos-
sible for the Crown to requisition them, and
therefore the order must be discharged. The
Antares, 1 P. Cas. 261; 59 S. J. 384;
31 T. L. R. 290— Evans, P.
Neutral Commercial Domicil — Firm Estab-
lished in Shanghai — British and German
Partners.] — A firm carrying on business in
Shanghai consisted of two British and two
German partners, and was registered in the
German Consulate at Shanghai as a German
firm and was subject to German laws under
treaty with China. Neither of the German
partners lived in Shanghai, but the two
British partners lived there. Certain goods,
which were the property of the firm, were
seized as prize, and they were claimed as the
property of the firm and alternatively as the
property of the respective partners. There
was no sufficient evidence as to whether after
the outbreak of war the British partners took
proper steps in due time to dissociate them-
selves from the business : — Held, that in
the circumstances none of the partners had
acquired or could acquire a neutral commer-
cial domicil in Shanghai, and the firm should
be treated as if it were an enemy firm estab-
lished in Germany, and that the German
partners' shares in the goods must be con-
demned, but that as regards the British
partners' shares the question must stand over
for further evidence as to what steps they took
after the commencement of the war to break
off their connection with the business. The
Eumaeus, 1 P. Cas. 605; 60 S. J. 122;
32 T. L. R. 125— Evans, P.
Time for Trial.] — Where cargoes consisting
of a very great number of different small
consignments had been seized as contraband,
and the ships had been detained, to be con-
demned on the ground that they were carrying
cargo, more than half of which would be found
to be contraband, the full time under Order XV.
rule 7 was allowed to the Crown to get ready
their case. The Kim {No. 1), 59 S. J. 428—
Evans, P.
Enemy Ship — Seizure of Cargo — No Claim
by Consignee — Order for Sale.] — Where the
consignees of certain goods in an enemy ship
had not taken up the bills of lading and they
refused to pay the expenses of detention, on
which payment the Procurator-General was
willing to release to them the goods, and
where they, the consignees, made no claim to
the goods, which were still incurring con-
tinuing charges for warehousing, an order was
made under Prize Court Rules, Order XXVII.
rule 2, for the goods to be sold and the pro-
ceeds of sale to be paid into Court, with liberty
to any parties interested to apply for payment
out of such proceeds of sale. The Horst
Martini, 59 S. J. 221— Evans, P.
Want of Discharging Facilities — Detention
of Ship — Condemnation of Cargo — Sale — Com-
pensation to Shipowners.] — When the cargo in
a British or allied ship is seized as prize and
owing to the want of discharging facilities it
remains warehoused in the ship until after it
has been sold under an order for condemna-
tion, the shipowners are not entitled in law to
compensation for the detention of the ship, but
the Court may authorise the Admiralty Marshal
to give them a reasonable sum out of the
proceeds of the cargo. The Cumberland,
31 T. L. R. 198— Evans, P.
b. Jurisdiction of Prize Court.
Cargo of Oil — Discharge into Tanks — Droits
of Admiralty — Seizure "on land" or in
"port" — Enemy National Character —
German Company — International Combine —
Notice of Detention — Ambiguity — Lawful
Seizure.] — A cargo of oil was shipped on a
British steamship at Port Arthur, Texas, for
delivery at Hamburg. The oil was the pro-
perty of a German incorporated company,
which was an international combine, and most
of its shares were held by incorporated com-
panies of nations which were not enemies.
During the voyage and after the outbreak of
war with Germany the vessel, owing to a
request of the Admiralty, was diverted even-
tually to London and was moored at a wharf.
The oil was discharged into tanks belonging
to the wharfingers, one hundred to one hundred
and fifty yards away from the wharf, by means
of the sliip's pumps and connecting pipes.
Notice by an officer of Customs that the whole
cargo was " placed imder detention " was
delivered on board when most of the oil had
been discharged, but the remaining oil was
afterwards discharged into the tanks : — Held,
first, that the wliole cargo of oil should be
condemned as droits of Admiralty, and that
the case was within tlie jurisdiction of the
Prize Court ; that the oil in the tanks was
seizable even if it was strictly '" on land " and
not in " port," but that the tanks were oil
warehouses and tlie oil therein was seized in
" port "; secoiully. that tlie German company,
being incorporated and resident in Germany,
was of an enemy national character, notwith-
1711
WAE— WATER.
1712
standing its international position ; and thirdly,
that the Customs notice that the cargo was
placed under detention was a lawful seizure of
the oil as droits of Admiraltj-, and the conten-
tion that the notice was too ambiguous was
disallowed. The Roumanian, 84 L. J. P. 65;
[1915] P. 26; 1 P. Cas. 75; 112 L. T. 464;
59 S. J. 206; 31 T. L. E. Ill— Evans, P.
Affirmed, 1 P. Cas. 536 ; 60 S. J. 58 ; 32 T. L. R.
98— P.C.
Freight — Release of Cargo Seized as Prize
— Claim by Shipowner in Prize Court — Cargo
Owner's Claim in King's Bench Division.] —
The jurisdiction to determine questions as to
the right of the shipowner to freight on cargo
which has been seized as prize is in the Prize
Court and not in a Court of common law,
although the cargo has been released without
being brought before the Prize Court for
adjudication. The Corsican Prince, 84 L. J.
P. 121; 1 P. Cas. 178; 112 L. T. 475; 59 S. J.
317 ; 31 T. L. R. 257— Evans. P.
Action for Freight in King's Bench
Division — Subsequent Motion in Prize Court
— Effect.] — A cargo of cotton, wheat, and
phosphate rock, laden in a British vessel and
consigned to Hamburg, was seized as prize.
Before the condemnation suit in prize was
tried the Procurator-General ascertained that
the phosphate rock, which had been discharged
and warehoused at Runcorn, was owned by
the consignors, a neutral company, and this
portion of the cargo was released. Under the
charterparty the shipowners had a lien for
freight, and to get possession of their phos-
phate the cargo owners, under protest,
deposited 1,680/. with the wharfingers in
accordance with the provisions of the Merchant
Shipping Act, 1894. The shipowners brought
an action in the King's Bench Division, claim-
ing a declaration that they were entitled to
the 1,680/. or to a sum pro rata itineris.
Rowlatt, J., held that the voyage not having
been completed, the shipowners were not
entitled to full freight, and that, there being
no agreement to accept delivery of the phos-
phate rock at Runcorn in discharge of the
obligation to deliver at Hamburg, they were
not entitled to freight pro rata itineris. There-
upon the shipowners moved in the Prize Court
for a declaration that they were entitled to a
sum in lien of freight to be assessed by the
Registrar. The cargo owners contended that
the matter was res judicata : — Held, that, as
the claim arose out of a seizure in prize, the
rights of the claimants must be determined
in accordance with the principles of prize, and
the matter was not res judicata, as the action
in the King's Bench Division was upon a con-
tract, and was decided according to common
law principles, and not according to the equit-
able principles by which, in the Prize Court,
a sum in lien of the full freight can be given ;
and that the shipowners were entitled to an
order for a reference to the Registrar to assess
the amount, if any, which should be allowed
them in respect of freight for the carriage of
the cargo to Runcorn. The St. Helena.
1 P. Cas. 618— Evans, P.
Power of Court to Review Decree — Rehear-
ing.]— The Prize Court has power to review
its decrees and to order a rehearing, but the
power should be exercised with great caution.
The Orcoma, 1 P. Cas. 402— Evans, P.
WARRANTY.
See SALE OF GOODS.
On Sale of Shares.] — See Company.
As Defence to Adulteration.] — See Local
Government.
WASTE.
See LANDLORD AND TENANT.
WATER.
A. Navigable Rivers, 1712.
B. Canals, 1713.
C. Streams, Non-navigable Rivers and
Watercourses.
a. Generally, 1714.
b. Rivers Pollution, 1716.
D. Waterworks Companies.
1. General Powers, 1719.
2. Liability, 1720.
3. Water Rates, 1723.
4. Other Matters, 1727.
A. NAVIGABLE RIVERS.
See also Vol. XIV. 1880, 2302.
Non-tidal River — Mooring.] — The right to
moor or drop anchor may be one of the inci-
dents of the right to navigate a public river,
but it can only be exercised as a reasonable
incident in the course of such navigation.
Campbell's Trustees v. Sweeney, [1911] S. C.
1319— Ct. of Sess.
In an action at the instance of the pro-
prietor of the bank and bed of a non-tidal
public navigable river to interdict a member
of the public from keeping a raft moored to
the bank or bed, and from attaching to the
raft, or to the bank or bed, pleasure boats for
the purpose of hiring out the same, — Held,
that the act complained of was neither an act
of navigation nor an incident of the defender's
right of navigation, and that interdict should
be grantt'd. Ih.
Embankment to Protect Land against
Floods — Injury to other Land.] — See Land.
Navigation of the Thames.] — See Shipping.
1713
WATEK.
1714
B. CANALS.
See also Vol. XIV. 1909, 2310.
" Successors and assigns " — Ultra Vires Sale
of Property — Dissolution of Company — " Canal
undertaking" — Liability to Perform Statutory
Obligations.] — Where a company is incor-
porated by statute for a public purpose with
compulsory powers of acquiring land, and
other statutory privileges and obligations, it
cannot without the intervention and authority
of Parliament transfer its undertaking or its
powers or privileges to other persons. Woking
Urban Council (Basingstoke Canal} Act, 1911,
In re, 83 L. J. Ch. 201: [1914] 1 Ch. 300;
110 L. T. 49; 78 J. P. 81; 12 L. G. R. 214;
30 T. L. R. 135— C.A.
In 1777 the Act of 18 Geo. 3. c. 75 was
passed incorporating a company and giving the
company " their successors and assigns "
power to acquire land and make a canal which
was to be open to the public on payment of
tolls, and also imposing on them the obligation
to make and maintain bridges over the canal.
The company carried on the undertaking until
1866, when they were ordered to be wound up.
In 1874 the canal, lands, and property were
conveyed to a purchaser with the approval of
the Court, and in 1878 an order was made
dissolving the company. Subsequently the
canal, lands, and property frequently changed
hands, and in 1908 they passed (with some
small exceptions) into the hands of a limited
company, which mortgaged the same to a
mortgagee. The bridges having fallen into
great disrepair the Woking Urban District
Council obtained in 1911 the passing of the
Woking Urban District Council (Basingstoke
Canal) Act, 1911, under which power was
given to them to repair the bridges and to
recover the expenses so incurred and a share
of the costs of preparing and obtaining the Act
from " the company," which was defined as
meaning the statutory company, " their suc-
cessors and assigns." By sections 10 and 35
the " canal undei taking " was charged with
these costs and expenses : — Held, that the
conveyance of 1874 was ultra vires the statutory
company, because it purported to pass that
without which their statutory undertaking
could not be carried on, and that on the
dissolution of the statutory company the canal,
lands, and property reverted to the persons
who had originally conveyed the lands to that
company, but that their rights had been since
barred by the Statute of Limitations. Held
also, that the words " successors and assigns "
in the Act of 1777 were without meaning, and
that prior to 1911 the limited company were
under no obligation to repair the canal or
bridges; and held, further, that the Act of
1911 had imposed no new obligation upon them
or their mortgagee, and that, as they were
not the owners of the " canal undertaking,"
no charge was imposed on the canal, lands,
and property in their hands. Bradford Nat^i-
gation Co., In re (39 L. J. Ch. 733; L. R.
5 Ch. 000), discussed. lb.
Right of Support to Canal — Mines and Com-
pulsory Powers — Notice to Stop Working.] —
In an action bv a mineral owner and his
tenants for compensation in respect of a seam
of oil shale which they alleged they had been
stopped from working by the proprietors of the
canal, under the powers of a private Act of
1817, to ensure the safety of the canal, —
Held, upon the construction of the corre-
spondence between the parties and of the
private Actj that the defenders had not stopped
the working of the seam. Linlithgow (Mar-
quis) V. North British Bailway, [1914] A.C.
820; [1914] S. C. (H.L.) 38— H.L. (Sc.)
Decision of the First Division of the Court
of Session ([1912] S. C. 1327) reversed on this
point, but affirmed on other grounds. lb.
Right of Fishing in.]- -See Fishery.
Compulsory Purchase of Land.]
Lands Clacses Act.
See
C. STREAMS, NON-NAVIGABLE RIVERS
AND WATERCOURSES.
a. Generally.
See also Vol. XIV. 1944, 2316.
Artificial Channel — Temporary Purpose —
Permissive Enjoyment — General Words —
Interference.] — The plaintiff was the owner of
land and buildings including a fellmonger's
yard in the occupation of a tenant, bounded
on the east side by a river. Between the river
and the yard was an open conduit running
parallel with the river down to a culvert by
which it was carried to the defendant's mill
lower down. The premises now owned by the
plaintiff and the defendant had been in the
ownership of the same person from 1779 until
1907, when the plaintiff purchased his present
holding, while the mill was sold to the defen-
dant's predecessor. According to the evidence,
for a long period before 1907 the occupants of
the fellmonger's yard had used the water in
the conduit for the purposes of their business,
but the repairs to the conduit had been carried
out by the occupier of the mill, who had
diverted the flow of water when necessary for
that purpose. The conveyance to the plaintiff
made no mention of any water right, but the
mill was conveyed to the defendant's prede-
cessors " with the full right and benefit of
passage and running of water to the said mill
and premises as is now and heretofore used
and enjoyed therewith " : — Held, that the
plaintiff was entitled to a right of user of the
conduit as enjoyed prior to the conveyance to
him in 1907, such right, although permissive
at the date of the grant, having become a
legal right by virtue of the general words of
the Convevancing Act, 1881, s. 6. Lewis v.
Meredith, '^2 L. J. Ch. 255; [1913] 1 Ch. 571;
108 L. T. .549— Neville, J.
International Tea Co.'s Stores v. Hobbs
(72 L. J. Ch. 543; [1903] 2 Ch. 165) followed
and applied. Burrows v. Lang (70 L. J. Ch.
607; [1901] 2 Ch. 502) distinguished. 76.
Higher and Lower Riparian Owners — Inter-
ference with Bed of River. 1 — The plaintiffs
were tlie owners uf a mill on the river T..
and the defendant was an upper riparian
1715
WATEE.
1716
owner. In 1910 the defendant removed a
large quantity of brickbats, stones, chalk,
pieces of iron, &c., from the main branch
of the river near to the cut leading to the
plaintiffs' mill, and levelled the bed. The
plaintiffs complained that these excavations
lowered the main branch and diverted a great
deal of water which otherwise would have
flowed down to their mill, and they brought
an action to restrain the defendant from in-
terfering with the bed of the main river so
as to divert the water from flowing down
the cut to the plaintiffs' mill; and for a
mandatory injunction to restore the river bed
to the condition it was in before the alleged
acts of interference ; and for damages. At
the trial, the County Court Judge left ques-
tions to the jury, which, with their answers,
were as follows : (1) Was the bottom of the
river at the spot in question the natural bed
of the river? — Yes. (2) Were there any brick-
bats or other foreign matter there? — Yes, a
very small quantity. (3) Was any portion of
the bed of the river, exclusive of brickbats,
&c., removed bv the defendant's men on
October 18, 1910>— Yes. (4) If so. did such
removal lessen the flow of water down the
Fishlake Cut to the plaintiffs' mill and inter-
fere with the working of the mill? — Yes. On
these findings the County Court Judge gave
judgment for the plaintiffs, and granted an
injunction and a mandatory injunction as
claimed : — Held, that the questions left to
the jury were the proper questions to be left,
and that the County Court Judge was right
in entering judgment for the plaintiffs. Fear
V. Vickers, 55 S. J. 688; 27 T. L. E. 558—
C.A.
Easement of Taking Surface Water — Cove-
nant to Maintain and Keep all Works " now
made and hereafter to be made " in Good and
Sufficient Repair— Extent of Obligation.]— The
plaintiffs granted to the defendants a perpetual
easement of taking surface water from a
certain area, and the defendants covenanted
to " maintain and keep all their works now
made and hereafter to be made in or upon
anj' parts of the [plaintiff's] estate in good
and sufficient repair and condition and in
particular (but without restricting the general
obligation hereinbefore in and by this clause
imposed on the [Corporation]) shall at all
times keep the dams of ponds B and C in good
and sufficient repair and as free from leakage
as reasonably may be " : — Held, on the con-
etruction of the deed containing the above
covenant, that the defendants were bound to
maintain and keep in repair not only artificial
watercourses made by them, but also natural
channels existing at the date of the covenant
and used bv the defendants. Evan-Thomas v.
Neath Corporation. TH J. P. 397— Eve, J.
Compensation Water — Abandonment — Limi-
tation on User of Water. ^ — By a section of a
local Act. " tlie owners, lessees, and occupiers "
of certain furnaces were permitted to take
along an existing watercourse from a stream
which was being acquired by the local autho-
rity, compensation water not exceeding a
specified quantity in " any working day." At
the time of the passing of the Act, a company
held tlie furnaces on lease from the plaintiff,
as tenant for life of certain settled lands, and
carried on business there. The watercourse
was some two miles long, and part of its
course lay over lands other than the settled
lands, and the company paid rent for way-
leaves over these lands. In 1890 the company
ceased to use the furnaces, and in 1895 they
gave up the wayleaves. In 1898 the plaintiff
assented to the dismantling of the company's
works. In the meanwhile, the watercourse
had been allowed to get into disrepair, and
as from 1895 or 1896 water entering it from
the stream escaped by breaches in it, and was
lost before reaching the site of the furnaces.
In 1909 the defendants diverted the stream so
as to prevent any water entering the water-
course, and thereupon the plaintiff brought
this action for a declaration as to his right to
the water, and for an injunction against the
defendants accordingly : — Held, on the con-
struction of the section, that the right to
water under it did not depend on the con-
tinuance of works at the furnaces, and that
the plaintiff, as tenant for life of the site of
the furnaces, was entitled to a supply of water
to that site, as provided by the section.
Held, also, that an abandonment of the right
conferred by the section was not proved by
shewing that no use had been made of the
water during a period when it happened not
to be wanted ; but that no injunction could
be granted at the present time, because the
plaintiff had so far suffered no damage from
the act of the defendants in diverting the
stream. H anbury v. Llanfrechfa Upper Urban
Council, 9 L. G. K. 360; 75 J. P. 307—
Neville, J.
Negligence in Stopping up Watercourse.] —
Held, upon the facts, that the defendants
were liable to the plaintiff in consequence
of negligently stopping up a watercourse by
reason of which the plaintiff's land was
flooded. Longton v. Winicick Asylum Com-
mittee, 75 J. P. 348 — Grantham, J. Appeal
compromised, 76 .J. P. 113 — C.A.
b. Rivers Pollution.
See o/.so Vol. XIV. 1984, 2325.
Sewage — Deposit of Sewage on Land of
Riparian Owner — Permanent Injury — Right of
Reversioner to Sue.] — Infringement of the
rights of a riparian owner by the pollution of
the water of a river opposite his property by
sewage, and trespass on his land by the dis-
charging, or allowing to escape, into the river,
of sewage which is carried by the wind or
current on to the land, constitute a permanent
injury entitling the owner, though a rever-
sioner, to maintain an action. Jones v.
Llanrwst Urban Council {No. 1), 80 L. J. Ch.
145; [1911] 1 Ch. 393; 103 L. T. 751;
75 J. P. 68 ; 9 L. G. R. 222 ; 55 S. J. 125 ;
27 T. L. R. 133— Parker, J.
Statutory Rights of Drainage into Sewers —
Claim of Private Person for Injunction.] —
Statutory rights of drainage into the sewers
of a local authority are not analogous to the
prescriptive rights referred to in Att.-Gen. v.
1717
WATEK.
1718
Dorking Guardians (51 L. J. Ch. 585 ;
20 Ch. D. 595). and are not a defence to the
claim of a private person for an injunction to
restrain nuisance from sewage. Ih.
Sewers Vested in Local Authority — Flow
into Thames — "Person causing or suffering
... to flow."] — Two sewers were vested in
a local authority, into which sewage matter
from a number of private houses drained, and
the sewage matter flowed through the sewers
into the Thames. In each of these sewers
the local authority had constructed a catchpit
for the purpose, and largely with the effect,
of purifying the sewage matter; but the
sewers had not been constructed by them, nor
had they done anything to any other part of
the sewers, nor dealt in any other way with
the sewage matter : — Held, that they had
caused the sewage matter to flow into the
Thames within the meaning of section 94, sub-
section 1 of the Thames Conservancy Act,
1894. Rochford Rural Council v. Port of
London Authority, 83 L. J. K.B. 1066; [1914]
2 K.B. 916; 111 L. T. 207; 78 J. P. 329;
12 L. G. R. 979— D.
Reg. V. Staines Local Board (53 J. P. 358 ;
60 L. T. 261), Thames Conservators v.
Gravesend Corporation (79 L. J. K.B. 331 ;
[1910] K.B. 442), and Waltham Holy Cross
Urban Council v. Lea Conservancy Board
(74 J. P. 253; 103 L. T. 192) distinguished.
Held, by Avory, J., that the above cases are
no longer law. lb.
Per Avory, J. : Reg. v. Staines Local Board
(supra) and the decisions following thereon —
Thames Conservators v. Gravesend Corporation
(79 L. J. K.B. 3.31 ; [1910] 1 K.B. 442) and
Waltham Holy Cross Urban Com^cil v. Lea
Conservancy Board (103 L. T. 192) — are incon-
sistent with the decisions of the Court of
Appeal in Kirkheaton District Local Board v.
Ainley (61 L. J. Q.B. 812; [1892] 2 Q.B. 274)
and Yorkshire IW. R.) Council v. Holmfirth
Urban Sanitary Authority (63 L. J. Q.B. 485 ;
[1894] 2 Q.B. 842) and are therefore not bind-
ing, lb.
Sewage Effluents — Sanitary Authority.] —
The respondentts discharged sewage eSluents
from their sewage works into a natural stream,
so far purified that they did not affect or
deteriorate the purity or quality of the water
in the stream, which was already polluted
before it received the respondents' efiluents,
or render it fouler than it was before : — Held.
that the respondents had not committed any
offence under section 17 of the Public Health
Act, 1875. .'Itt.-Gen. v. Birmingham, Tame,
and Rea District Drainage Board, 82 L. J.
Ch. 45; [19121 A.C. 788; 107 L. T. 353:
76 J. P. 481— H.L. (E.)
Natural Stream — Intermittent Flow — Dis-
charge of Crude Sewage — Conversion into
Sewer — Vesting in Local Authority —
Nuisance.] — Crude sewage was discharged by
a local authority into the bed of a natural
stream which flowed intermittently. The
stream passed through the plaintiffs" land and
discharged into a tidal river. Part of the
stream was culverted over. The culvert,
which had been constructed under private
agreements with an owner of the plaintiffs'
land prior to the passing of the Public
Health Act, 1875, was in bad repair. The
culvert permitted sewage to escape on to the
plaintiffs' land, which was periodically over-
flowed and sewage deposited thereon : — Held,
that the bed of the stream was a public nui-
sance and that the culvert had become a sewer
and was vested under the Public Health Act,
1875, s. 13, in the local authority, who were
liable in damages and must be restrained by
injunction. Att.-Gen. \. Lewes Corporation,
81 L. J. Ch. 40; [1911] 2 Ch. 495; 105 L. T.
697 ; 76 J. P. 1 ; 10 L. G. R. 26 ; 55 S. J. 703 ;
27 T. L. R. 581— Swinfen Eady, J.
The cases of Yorkshire ( West Riding)
Rivers Board v. Gaunt tt Sons, Lim.
(67 J. P. 183) and Yorkshire (West Riding)
Rivers Board v. Preston S Sons (69 J. P. 1)
do not establish the proposition that a natural
stream cannot become a sewer unless all flow
to natural water is cut off. lb.
Continuing Cause of Action.] — Periodical
inundation from a sewer out of repair is a
continuing cause of action. lb.
Polluting Liquid Proceeding from Factory —
Passage from Sewer to River — Sewer Vested
in Local Sanitary Authority — Proceedings
against Local Sanitary Authority.] — Proceed-
ings can be taken against a local sanitary
authority under section 4 of the Rivers Pollu-
tion Prevention Act, 1876, for causing or
knowingly permitting any poisonous, noxious,
or polluting liquid proceeding from a factory
or manufacturing process, and carried through
a sewer vested in such local sanitary authority,
to fall or flow or be carried into a stream.
Yorkshire (W. R.) Rivers Board v. Linthicaite
Urban Council (No. 1). 84 L. J. K.B. 793;
[1915] 2 K.B. 436; 112 L. T. 813; 79 J. P.
280 ; 13 L. G. R. 301 ; 59 S. J. 331 ; 31 T. L. R.
154— C. A.
Decision of the Divisional Court (83 L. J.
K.B. 1420; [1914] 2 K.B. 13) reversed. 76.
Local Authority Permitting Flow of Pollu-
ting Liquid from Factories — Vesting of Sewer
in Local Authority — Sewer Made by Land-
owner for His Own Profit.] — In 1863 a piece
of land adjacent to a river was laid out by
the owner for the purpose of erecting woollen
mills under ground leases granted by him, and
he constructed a main sewer or drain for the
purpose of carrying off the trade refuse from
the mills (when erected) into the river. Sub-
sequently six mills were erected on the land,
and later on some hundred water closets in
the mills for the use of the employees were
connected with the sewer, with the result that
a continuous flow of polluting liquid within
the meaning of section 4 of the Rivers Pollu-
tion Prevention Act, 1876, passed into the
river. There was no evidence that the land-
owner had laid out the land as an ordinary
building estate, or that any dwelling houses
were connected with the sewer except one, for
the drainage of which house into the sewer
the owner agreed in 1864 to pay. and did pay,
to the owner of the sewer, a rental of 5s. a
year. In 1891 the defendants, the local
1719
WATER.
1720
sanitary authority for the district through
which the sewer ran, entered into an agree-
ment, for valuable consideration, with the then
owners of the sewer, under which the defen-
dants acquired a right to use the sewer for
the drainage of some houses within their dis-
trict, subject to the rights of user of the
sewer by the mill owners and their employees.
The plaintiffs, the sanitars- authority under
the Rivers Pollution Prevention Act, 1876.
complained that the defendants caused and
knowingly permitted to flow through the sewer
into the river the aforesaid polluting liquid
from the six mills, contrary to section 4 of
the Act, and the County Court Judge granted
an injunction forbidding a further commission
of the offence : — Held, on appeal — first, that
the sewer had been made by the landowner
for his own profit within the meaning of sec-
tion 13 of the Public Health Act, 1875, and
consequently did not vest in the defendants ;
and secondly, that the defendants were not.
by reason of the agreement of 1891, guilty of
an offence under section 4 of the Act of 1876.
YorksJiire (W. R.) Rivers Board v. Linthwaite
Urban Council (No. 2), 84 L. J. K.B. 1610;
79 J. P. 433; 13 L. G. R. 772— D.
Sykes v. Sotcerbrj Urban Council (69 L. J.
Q.B. 464, 468; [1900] 1 Q.B. 584, 589, 590),
adopting the dicta of Stirling, J., in Grays-
dale V. Sunbury-on-Thames Urban Council
(67 L. J. Ch. 585; [18981 2 Ch. 155), followed.
lb.
Order in County Court Requiring District
Council to Abstain from Committing Offence —
Breach of Order — Application for Penalties —
Whether Two Months' Notice in Writing
Necessary.] — An order was made in the County
Court under section 10 of the Eivers Pollution
Act, 1876, declaring that an offence against
the Act had been committed by the H. District
Council, and requiring them to abstain from
the commission of the offence. The Rivers
Board subsequently applied for penalties for
default by the H. District Council in com-
plying with the order : — Held, that in such
a case the two months' written notice of
intention to take proceedings referred to in
Bection 13 of the Act had no application.
Yorkshire (W. R.) Rivers Board v. Heckmond-
wike Urban Councih 110 L. T. 692; 78 J. P.
190— D.
D. WATERWORKS COMPANIES.
1. General Powers.
See also Vol. XIV. 1997. 2333.
Breaking up Roads — Laying Water Pipe
therein — Subsequent Subsidence of Street —
Land Injuriously Affected — Compensation for
Damage — Jurisdiction of Justices."' — The re-
spondents, in tlie exercise of statutory powers,
laid a water-pipe under a highway repairable
by a county council. The work was properly
executed under the superintendence of the
surveyor to the council. Some months later,
as the result of the pipe being so laid,
damage was caused to the highway, part of
which collapsed. The county council claimed
compensation under section 28 of the Water-
works Clauses Act, 1847, which was incor-
porated in the respondents' special Act, for
damage done in the execution of their
statutory powers, and instituted proceedings
to have the amount settled by two Justices : —
Held, that the highway was " land injuriously
affected by the erection of the works " within
the meaning of the Lands Clauses Act, 1845,
that section 85 of the Waterworks Clauses
Act, 1847, did not apply, and that the Justices
had no jurisdiction. Harpur v. Swansea
Corporation, 82 L. J. K.B. 1208; [1913] A.C.
597; 109 L. T. 576; 77 J. P. 381; 11 L. G. R.
1096; 57 S. J. 773; 29 T. L. R. 737— H.L.
(E.)
— Judgment of the Court of Appeal (81 L. J.
K.B. 1103; [1912] 3 K.B. 493) affirmed. lb.
Laying of Mains — Power to Lay Mains
under Land of Railway Company — Acquisi-
tion of Easement, whether Necessary.] — By
section 61. sub-section 1 of the Metropolitan
Water Board (Various Powers) Act, 1907, " It
shall be lawful for the Board to exercise at
any place or places within their limits of
supply the like powers with respect to the
laying of mains and pipes as are exercisable
by local authorities under the provisions of
the Public Health Act, 1875, with respect to
the laying of mains and pipes within their
respective districts for the purpose of water
supply. ..." By section 96, sub-section 6,
" The Board shall not without the consent in
writing of the railway companies under their
common seal purchase or acquire any of the
lands or property of the railway companies, but
the Board may acquire and the railway com-
panies shall if required grant to the Board an
easement or right of constructing and maintain-
ing works on through in under over or along
such lands and property and the sum to be paid
for the acquisition of such easement or rignt
shall be settled in the manner provided by the
Lands Clauses Consolidation Act, 1845 . . ." :
— Held, that the Board were entitled, under
the powers conferred upon them by the above
enactments, to lay a main under land belong-
ing to the railway company without purchasing
or acquiring an easement in respect of such
land. Metropolitan Water Board and London,
Brighton, and South Coast Railway, In re.
84 L. J. K.B. 1216: [1915] 2 K.B. 297;
113 L. T. 30; 79 J. P. 337; 13 L. G. R. 576
— C.A.
2. Liability.
See also Vol. XIV. 2004, 2337.
Unlawfully Cutting Off Supply — Liability of
Water Company to Penalty. 1 — A water com-
pany supplied a number of houses with water
by a single service pipe, and by agreement the
owner of the houses was liable for the water
rate. The company, in contravention of sec-
tion 4 of the Water Companies (Regulation of
Powers) Act, 1887, cut off the supply to those
houses for non-payment of the water rate, and
refused, on tender of the rate, to restore the
supply until the owner complied with the com-
pany's regulations as to having a service pipe
for each house : — Held, that the company were
bound to restore the status quo ante before
they were entitled to exercise the rights given
1721
WATEK.
1722
them by their regulations and their special
Water Order, and therefore that they were
liable to a penalty under section 5 of the
Water Companies {Regulation of Powers) Act,
1887, for cutting off the supply. South- West
Suburban Water Co. v. Hardy, 109 L. T. 169;
77 J. P. 283; 11 L. G. E. 1000; 23 Cox C.C.
485— D.
Owner and not Occupier Liable — Un-
occupied Premises.] — See Metropolitan
Water Board v. Dibbey, post, col. 1727.
Repair of Communication Pipe — Right of
Consumer to Recover Cost of Repair Executed
under Threat of Cutting off Supply — Onus of
Proving Ownership of Pipe.] — The owner of a
house under the annual value of lOL received
notice from the local waterworks company that
unless he repaired within forty-eight hours a
leak in the communication pipe by which
water was supplied to the house his water
supply would be withdrawn. Having complied
with the notice, he sued the company in the
County Court for the sum expended by him in
carrying out the repairs as money paid under
duress — that is, under the threat to cut off the
water : — Held, that in the absence of any
finding of fact as to whether the pipe was laid
down by the water company, or how or under
what statutory provisions (if any) it came to
be laid at all, the consumer could not sustain
a claim for the amount expended on its repair
as money paid under duress. Per Phillimore,
J., on the ground that the notice was a mere
warning or advice not amounting to duress,
the company not being bound to repair the
pipe, and not being bound to supph' water
which would be wasted by reason of the leak
in the pipe. Per Avory, J., on the ground
that the onus was upon the plaintiff to satisfy
the Court that the communication pipe was in
fact the property of the company. Coins
Valley Water Co. v. Hall (5 L. G. R. 260;
6 L. G. R. 115) explained. Parnell v. Ports-
mouth Waterworks, 8 L. G. R. 1029: 75 J. P.
99— D.
Negligence — Works Laid in Street — Damage
to Passenger from Explosion of Gas — Right
and Obligation of Consumer to Open up Streets
to Repair Leakages.] — A foot passenger in a
jMiljlic street was injured by an explosion of
gas in the basement of an adjoining shop.
On investigation, it was found that under the
kerb of the footway there was a hole full of
water, that a communication pipe, supplying
the owner of the shop with water, and crossing
a gas main at right-angles, was leaking, and
that the gas main was leaking at a rusty
place near the leak in the water pipe. By
consent, the owner of the shop was dismissed
from the action : — Held, that there was no
case to go to the jury in respect of the Water
Board, though an application to dismiss them
from the action on the close of the plaintiff's
case was refused, on the ground that, as there
was evidence which the gas company must
meet, the case presented by the gas company
might disclose a cause of action against the
Water Board. The grounds for holding that
there was no case for the Water Board to meet
were — first, that the leaking water pipe was
a communication pipe, and that therefore,
under the Metropolitan Water Board (Charges)
Act, 1907, the consumer was both entitled and
under an obligation to break up the street in
order to repair it, the fact that it was an old
pipe being immaterial: and secondly, that,
whether this was so or not, the Water Board
were under no duty towards a third person
to repair the pipe. As regards the gas com-
pany, the jury ultimately found a verdict in
their favour. Chapman v. Fylde Water Co.
(64 L. J. Q.B. 15; [1894] 2 Q.B. 599) dis-
tingished. Stacey v. Metropolitan Water
Board, 9 L. G. R. 174— Phillimore, J.
Stopcock Box on Service Pipe out of
Repair — Injury to Foot Passenger — Liability
of Water Board.] — The plaintiff, while walk-
ing along the pavement of a street within the
district of the defendants, the Metropolitan
Water Board, sustained personal injuries from
catching her foot in a stopcock box which was
in a defective condition owing to the absence
of a lid. The stopcock box was placed in the
pavement over a stopcock in a service pipe
which led from a main belonging to the defen-
dants to certain private premises. The service
pipe had been laid down before the Metro-
politan Water Board (Charges) Act, 1907, came
into operation, but there was no evidence to
shew by whom it had been laid down. The
service pipe and the stopcock were the property
of the owner of the premises to which the
pipe led. In order to repair the stopcock box
it would not have been necessary to break up
the street : — Held, that the defendants were
not liable for the injuries sustained by the
plaintiff, inasmuch as section 8 of the above
Act, which enacts that communication pipes
and other necessary and proper apparatus for
the supply of water to the owner or occupier
of premises are to be provided, laid down,,
and maintained by such owner or occupier,
applies to service pipes in existence at the
date of the Act coming into force as well as
to pipes thereafter to come into existence
Chapman v. Fylde Waterworks Co. (64 L. J
Q.B. 15; [1894] 2 Q.B. 599) distinguished
Batt V. Metropolitan Water Board, 80 L. J
K.B. 1354 ; [1911] 2 K.B. 965 ; 105 L. T. 496
9 L. G. R. 1123; 75 J. P. 545: 55 S. J. 714;
27 T. L. R. 579— C.A.
Dangerous Meter-pit Cover — Injury to
Foot Passenger — Liability of Owners and
Occupiers of Premises Supplied — Liability of
Water Board.] — The plaintiff was injured
owing to the dangerous condition of a water
meter-pit cover in the highway within the
district of the Metropolitan Water Board : —
Held, that the owners and occupiers of the
premises, for the supply of water to which this
cover was part of the apparatus, were prima
facie liable, and that the Water Board was not
liable, the former, under section 16, sub-
section 1 of the Metropolitan Water Board
(Charges) Act, 1907, having to maintain such
apparatus. Batt v. Metropolitan Water Board
(80 L. J. K.B. 1354; [1911] 2 K.B. 965), a
decision under section 8 of the Act, followed.
Mist V. Metropolitan Water Board, 84 L. J.
K.B. 2041; 113 L. T. 500; 79 J. P. 495;
13 L. G. R. 874— D.
1723
WATER.
1724
3. Water Rates.
See also Vol. XIV. 2022, 2352.
Factory — " Domestic purposes " — " Trade
purposes" — Water Supplied for Lavatories
and Water Closets Used by Employees — Pay-
ment on Rateable Yalue.] — Under section 25
of the Metropolitan Water Board (Charges)
Act, 1907, that authority is entitled to charge
for water supplied to premises used as a
factory as water used for domestic purposes,
on the rateable value of the premises, even
though the water closets and baths for which
the water is supplied be intended for the use
of persons employed in the factory. Colley's
Patents, Lim. v. Metropolitan Water Board,
81 L. J. K.B. 126; [1912] A.C. 24; 105 L. T.
674; 9 L. G. R. 1159: 76 J. P. 33; 56 S. J.
51; 28 T. L. E. 48— H.L. (E.)
Decision of the Court of Appeal (80 L. J.
K.B. 929; [1911] 2 K.B. 38) affirmed. Ih.
Supply for " domestic purposes " — Supply to
Restaurant — Supply "for" "any trade,
manufacture, or business."] — In detrmineing
whether water is used for " domestic pur-
poses " within the meaning of section 25 of
the Metropolitan Water Board (Charges) Act,
1907, the nature of the user, whether domestic
or not, and not the character of the premises in
which or of the person by whom it is used
must be looked at ; and it is none the less used
for " domestic purposes " where its use for
those purposes is also ancillary to a trade or
business. It is a trade use of water, so as to
make it a " supply . . . for " the " piirposes "
of " . . . any trade manufacture or business "
within the meaning of the section, and not an
increase of its use for domestic purposes,
caused by the trade, manufacture, or business,
which is excepted by section 25 from the defini-
tion of "domestic purposes." Metropolitan
Water Board v. Avery, 83 L. J. K.B. 178;
[1914] A.C. 118 ; 109 L. T. 762 ; 78 J. P. 121 ;
12 L. G. E. 95 ; 58 S. J. 171 ; 30 T. L. E. 189
-H.L. (E.)
The lessee of a public house, in addition to
an ordinary public-house business, carried on
a small catering business, supplying some
twenty or thirty luncheons daily to non-
resident customers, whereby there was an in-
creased use of water for what are ordinarily
known as domestic purposes, such as the wash-
ing of dishes, cooking, and scrubbing floors :
— Held, that this extra water was used for
" domestic purposes." CoUey's Patents, Lim.
V. Metropolitan Water Board (81 L. J. K.B.
126; [1912] A.C. 24) applied. lb.
Decision of the Divisional Court (82 L. J.
K.B. 562; [1913] 2 K.B. 257) and of the
Court of Appeal affirmed. Ih.
Premises Used for Trade or Manufacturing
Purpose — Restaurant — Supply by Meter only.l
— Section 20 of the Metropolitan Water Board
(Charges) Act, 1907, gives the Board an option
to refuse to supply with water, otherwise than
by meter, any house or building which or part
of which is used for a trade or manufacturing
purpose for which water is used ; and the test
under the section is the character of the
premises to which the water is being supplied,
not the purpose to which the water is actually
being put : — Held, therefore, that the pro-
prietor of a restaurant was not entitled to a
supply of water for domestic purposes in the
restaurant otherwise than by meter. Metro-
politan Water Board v. Avery (83 L. J. K.B.
178 ; [1914] A.C. 118) and Frederick v. Bognor
Water Co. (78 L. J. Ch. 40; [1909] 1 Ch. 149)
distinguished. Oddenino v. Metropolitan
Water Board, 84 L. J. Ch. 102; [1914] 2 Ch.
734; 112 L. T. 115; 79 J. P. 89; 13 L. G. E.
33; 59 S. J. 129; 31 T. L. R. 23— Sargant, J.
Workhouse — " Priyate dwelling house."] —
By the Waterworks Clauses Act, 1847, s. 53,
it is provided that " every owner or occupier
of any dwelling house within the limits of the
special Act shall " upon certain conditions
" according to the provisions of this and the
special Act, be entitled to demand and receive
from the undertakers a sufficient supply of
water for his domestic purposes." The Bristol
Waterworks Act, 1862, incorporates the Water-
works Clauses Act, 1847, " except when other-
wise specially provided by this Act," and pro-
vides by section 68 that " the company shall
at the request of the owner or occupier furnish
to every occupier of a private dwelling house
... a sufficient supply of water for the
domestic use of every such occupier " at
certain annual rents as there set out. The
appellants requested the respondents to supply
them with water on the terms specified in this
section for the domestic use of the officers and
inmates of the workhouse : — Held, that sec-
tion 53 of the general Act must be treated as
controlled by section 68 of the special Act, and
that, as a workhouse was not a " private
dwelling house " within the meaning of the
latter section, the respondents were not bound
to supply water for the domestic use of the
officers and inmates upon the terms prescribed,
but were at liberty to make their own terms.
Bristol Guardians v. Bristol Waterworks Co.,
83 L. J. Ch. 393; [1914] A.C. 379; 110 L. T.
846; 78 J. P. 217; 12 L. G. E. 261; 58 S. J.
318; 30 T. L. E. 296— H.L. (E.)
Judgment of the Court of Appeal (81 L. J.
Ch. 608; [1912] 1 Ch. 846) affirmed. 7b.
Builder Requiring Supply for Building Pur-
poses— "Require" — Use by Builder of Water
Supplied to Building Owner by Meter — Right
of Water Board to Charge Builder — Power of
Water Board to Determine Percentage Rate
of Charge.] — By an agreement between the
Metropolitan Water Board and the Secretarj'
of State for War the Board agreed to afford a
supply of water by meter to certain barracks
for domestic and non-domestic purposes. Dur-
ing the currency of this agreement, the defen-
dants, who were a firm of builders, entered
into a contract with the Secretary of State for
War whereby the defendants undertook to
carry out (inter alia) such building work at the
barracks as the Secretary of State might
demand during a period of three years. It
was a term of this contract that water for
the works under the contract might be ob-
tained by the defendants free of charge from
any available War Department source. In
pursuance of this contract the defendants built
two additional rooms at the barracks, and they
took the water which they used for the purpose
1725
WATER.
1720
of the work from the supply measured by
meter and afforded to the barracks under the
agreement between the Board and the Secre-
tary of State. The Water Board sued the
defendants in the County Court under sec-
tion 17 of the Metropolitan Water Board
(Charges) Act, 1907, to recover from them, as
being builders who required a supply of water
for the purpose of building, the sum of 14s.,
such sum being calculated at the rate of 7s.
per cent, on the probable total cost of the
work : — Held, that the word " require " in
section 17 meant "ask for " or " request,"
and not "' have need of," and that, as the
defendants had not asked for or requested a
supply of water, the action was not maintain-
able. Metropolitaji Water Board v. Johnson,
82 L. J. K.B. 1164; [1913] 3 K.B. 900;
109 L. T. 88 ; 77 J. P. 384 ; 11 L. G. B. 1106 ;
57 S. J. 625; 29 T. L. E. 603— C.A.
The Water Board, purporting to act in pur-
suance of the proviso to section 17 — which
empowers them, if they " so determine "
instead of affording to such a builder the re-
quired supply by measure, to afford the same
at a rate not exceeding 7s. per 1001. of the
probable total cost after making such allowance
as they may think reasonable for decorative
or iron or steel work not requiring the use of
water — had passed a resolution to the effect
that all supplies of water for building purposes
under section 17 should be afforded not by
measure, but at such percentage rate, after
making such reasonable allowance : — Held.
that, as there was no evidence that the Board
had taken into consideration the question
whether in this particular case it would be
reasonable to make any such allowance, the
general resolution was not a determination
within the meaning of the proviso. 76.
Supply of Water by Agreement — Receiver
Appointed by Mortgagees — Arrears of Water
Rates — Liability of Receiver — ' ' Owner ' ' —
Collector of Rent.] — The owner of certain
blocks of buildings, containing a number of
separate tenements, in 1903 made an agree-
ment with the predecessors of the plaintiffs
for the supply of water by meter to the build-
ings at certain rates. The tenements were
each of an annual value less than 20L No
payment in respect of the water supplied was
made after 1904. In August, 1906, the defen-
dant was appointed receiver of the premises
on behalf of mortgagees thereof, and he
received the rents of all the tenements with
the exception of four. The agreement for the
supply of water was never terminated. The
rents were actually collected by a collector
who resided on the premises, and had, pre-
viously to the defendant's appointment as
receiver, collected on behalf of the mortgagor.
He handed the rents when collected to the
defendant. The plaintiffs claimed to recover
from the defendant personally the arrears of
water rate under the provisions of the Water-
works Clauses Act, 1847, and the East
London Waterworks Act, 1853 : — Held, that
the collector was to be deemed the " owner "
of the tenements within section 72 of the
Waterworks Clauses Act, 1847, and section 81
of the East London Waterworks Act, 1853,
and not the defendant, who could not there-
fore be made personally liable in respect of
the water rate. Metropolitan Water Board v.
Brooks, 80 L. J. K.B. 495 ; [1911] 1 K.B. 289 ;
103 L. T. 739; 75 J. P. 41 ; 9 L. G. R. 442
—C.A.
Post-Office Premises not on Valuation List
and not Rated.] — The plaintiff, who was the
occupier of premises used as a post-office
within the district supplied with water by the
defendants, which premises were not entered
on the valuation list and were not rated,
demanded a supply of water for domestic pur-
poses, but did not strictly comply with all the
regulations made by the defendants, and was
unable to agree with the defendants as to
the proper amount to be paid for the water
supply : — Held, that the premises not being
rated, the defendants could not insist on pre-
payment of water rate by the plaintiff as a
condition precedent to their supplying the
plaintiff with water, and that the plaintiff
was entitled to a supply of water for domestic
purposes as of right subject to his complying
with the requirements of the defendants' rules
and regulations, and on payment of the value
of the water supplied, which value should,
if necessary, be ascertained in chambers.
Postmaster-General v. Nenagh Urban Council,
[1913] 1 Ir. E. 238— Eoss, J.
Supply Outside Borough but Within Limits
of Supply — Provisions of General and Special
Acts to be Read together.] — The plaintiff was
the occupier of a house which was outside the
limits of the borough of Plymouth, but was
within the limits of water supply under the
Plymouth Corporation Water and Markets Act,
1867, which Act incorporated the Waterworks
Clauses Act, 1847. "except where expressly
excepted or varied by this Act." The plaintiff
was supplied by the defendants with water
under the special Act, but having been com-
pelled to pay a water rate in excess of the
scale prescribed by section 22 of that Act, he
sought to recover from the defendants the
difference between the two rates, contending
that by section 53 of the Waterworks Clauses
Act, 1847, and section 22 of the special Act
he was only liable to pay water rate in accord-
ance with the scale laid down in the last-
mentioned section : — Held, that the action
failed, as section 15 of the special Act (relating
to supply beyond the borough of Plymouth,
but within the limits of supply) varied the
provisions of the Act of 1847, and applied so
as to entitle the plaintiff to a supply of water
only on the terms to be agreed between him
and the defendants. Pitts v. Plymouth Cor-
poration, 81 L. J. K.B. 1240; [1912] 3 K.B.
301; 107 L. T. 526; 10 L. G. E. 312— D.
Rateable Value — Provisional Valuation List
— "Valuation list in force."! — A provisional
valuation list made under section 47 of the
Valuation (Metropolis) Act, 1869, which is not
finally settled by the assessment committee
until after the beginning of a quarter, has
not, for the purposes of a water rate payable
in advance under the Waterworks Clauses
Act, 1847, a retrospective operation, and does
not supersede a previous valuation list from
1727
WATER.
1728
the date of service of a copy of the list and
notice on the occupier ; but the rateable value
of the premises to be assessed is, by section 13,
Bub-section 1 of the Metropolitan \Vater Board
(Charges) Act, 1907, to be " determined by
the valuation list in force at the commencement
of the quarter for which the water rate accrues
or (if there is no such list in force) by the
last rate made for the relief of the poor."
Metropolitan Water Board v. Phillips, 82 L.J
Ch. 89; [1913] A.C. 86; 107 L. T. 659
77 J. P. 73; 10 L. G. E. 983; 57 S. J. 95
29 T. L. E. 71— H.L. (E.)
Decision of the Court of Appeal (81 L. J.
Ch. 649; [1912] 2 Ch. 546) reversed. lb.
Action to Recover Water Rate — Period of
Limitation.]— The six months' period of limi-
tation prescribed by section 11 of the Sum-
mary Jurisdiction Act, 1848, for the institution
of summary proceedings does not apply to an
action brought in the County Court for the
recovery of arrears of water rate. Tottenham
Local Board v. Rowell (46 L. J. Ex. 432;
1 Ex. D. 514) commented on. Metropolitan
Water Board v. Bunn, 82 L. J. K.B. 1024;
[1913] 3 K.B. 181; 109 L. T. 132; 77 J. P.
353; 11 L. G. E. 891; 57 S. J. 625;
29 T. L. E. 588— C. A.
Non-payment of Water Rate — Owner and
not Occupier Liable — Cutting off Supply — Un-
occupied Premises." — By section 4 of the
Water Companies (Eegulation of Powers) Act,
1887, a water company is prohibited from
cutting off the water supply to a dwelling
house or part of a dwelling house occupied as
a separate tenement for non-payment of the
water rate " where the owner and not the
occupier is liable " for such payment : — Held,
that if at the time the rate accrued due there
was an occupier as well as an owner, and the
latter was liable for the payment thereof, the
prohibition applied, although at the time when
the supply was cut off the occupier had gone
out of possession and the premises were
vacant. Metropolitan Water Board v. Bibbey,
80 L. J. K.B. 977 ; [1911] 2 K.B. 74 ; 104 L. t.
812; 75 J. P. 322; 9 L. G. R. 531— D.
4. Other Matters.
See also Vol. XIV. 2357.
New River Company — King's Clogg.] — The
King's Clogg, now consisting of an annual
sum of 400Z., is an obligation which has been
transferred to, and is now an obligation of,
the Metropolitan Water Board, by virtue of
the Metropolis Water Act, 1902, and the same
is under section 4 secured upon the water
fund established by that Act. Metropolitan
Water Board V. Adair, 55 S. J. 270;
27 T. L. E. 253— H.L. (E.)
Officer — Superannuation Allowance.] — The
plaintiff, who in 1897 had been engaged as
a draughtsman and surveyor by the chief
engineer of the New Eiver Co., and who con-
tinued to act as an engineer for that company
and subsequently for the defendants till 1909,
when his services were dispensed with, — Held
to be an existing servant or officer of the
defendants within the meaning of section 47,
sub-section 10 of the Metropolis Water Act,
1902, and, as such, entitled to a superannua-
tion allowance. Webster v. Metropolitan
Water Board, 76 J. P. 474; 10 L. G. R. 1025
— Avory, J.
Statutory Transfer of OflScers and Ser-
vants of Company to Metropolitan Water
Board at Same Rate of Pay whilst Performing
the Same Duties — Continuation of Contract
with Water Board — Right of Water Board to
Determine Contract.] — Section 47, sub-sec-
tion 1 of the Metropolis Water Act, 1902,
provides that, as from the appointed day —
that is, November 24, 1904, on which day the
undertakings of various London water com-
panies were taken over by and vested in
the Metropolitan Water Board — any existing
officer of any water company shall ' ' become
an ofScer or servant of the Water Board, and
shall hold his office or situation by the same
tenure and upon like terms and conditions
under the Water Board as he would have
held the same under the company if this Act
had not been passed, and, while performing
the same duties, shall receive not less salary,
wages or pay than he would have been entitled
to if this Act had not been passed." The
plaintiff whilst employed by a London water
company, whose undertaking was transferred
to the defendants by the above statute, on a
verbal agreement made in 1899, by which
he received extra pay for overtime work and
travelling expenses. The contract of service
was subject t-o seven days' notice to terminate
it. The arrangement, with one slight altera-
tion in the amount of payment, was continued
until November 24, 1904, the day appointed
by the Act for the transfer of the company's
servants to the Water Board, and thereafter
between the plaintiff and defendants until
November 16, 1906, on which day they gave
him seven days' notice that at the expiration
thereof they would discontinue payment of
extra remuneration, and they accordingly at
the expiration of the notice refused, and
continued to refuse, to pay him the extra
remuneration. La an action for arrears of
extra pay from November 16, 1906, — Held,
that the plaintiff's statutory right, while per-
forming the same duties, to receive not less
salary, wages, or pay than he would have
been entitled to if the Act had not been
passed was subject to the right of the defen-
dants, his new employers, to determine the
original contract of service ; that the defen-
dants, in giving the seven days' notice, were
exercising a right which the water company
could have exercised ; and that therefore they
were entitled to judgment. Rowsell v. Metro-
politan Water Board, 84 L. J. K.B. 1869;
79 J. P. 267 ; 13 L. G. E. 654— D.
Semble, in a claim for compensation by an
existing officer for direct pecuniary loss sus-
tained by him by reason of the abolition or
relinquishment of his office or otherwise in
consequence of the Metropolis Water Act,
1902, the special procedure referred to in
section 47, sub-section 5 of the Act must be
adopted. lb.
1729
WAY.
1730
WAY.
A. Highways.
1. Nature arid Creation of, 1729.
2. User of.
a. Obstruction, 1735.
b. User of Bicycles, 1741.
c. User of Locomotives.
i. Generally, 1741.
ii. Motor Cars and Other Light
Locomotives, 1743.
d. Extraordinary Traffic.
i. What is, 1750.
ii. Parties Liable, 1751.
iii. Eecovery of Expenses, 1752.
e. Other Offences on, 1753.
3. Repair of.
a. Obligation to Repair, 1754.
b. Liability for Damages, 1755.
B. Bridges, 1757.
C. Ferries, 1759.
D. Private Ways. See Easement.
A. HIGHWAYS.
1. Nature and Creation of.
See also Vol. XV. 3, 1860.
Whether Roads riighways.] — On the evi-
dence, held, that certain occupation roads
(subject to a public footpath over one of them)
were not highways. Fuller v. Chippenham
Rural Council, 79 J. P. 4 — Astbury, J.
Held, on the facts, that certain portions of
the roads were highways repairable by the
inhabitants at large. Att.-Gen. v. Godstone
Rural Council, 76 J. P. 188— Parker, J.
Whether a highway has or has not been
dedicated to the public so as to become repair-
able by the inhabitants at large is a question
of fact for the Justices, and if there is any
evidence in support of their finding the Court
will not set it aside. Folkestone Corporation
V. Brockman, 83 L. J. K.B. 745; [1914] A.C.
338; 110 L. T. 834; 78 J. P. 273; 12 L. G. R.
334; 30 T. L. R. 297— H.L. (E.)
In 1827 the tenant for life of certain waste
land, over which people had been allowed to
wander without interference, made a joad over
such land, and, under the powers conferred
by a private Act of Parliament, let plots of
land adjoining the road upon building leases,
and houses were erected upon such plots of
land. The road was used in connection with
the houses so erected, and to some extent by
the inhabitants of the neighbourhood. There
was a notice board on which the road was
described as a " private road," and there were
gates and bars across the road, and tolls were
charged for the passage of horses and vehicular
traffic, but there had never been any inter-
ference with the use of the road by foot
passengers. There had been no formal dedica-
tion of the road under section 23 of the Hich-
way Act, 1835, and it had never been repaired
by the local authority. The Justices found that
there had been no dedication of the road to
the public before the Highway Act, 1835, came
into operation, and that it was not a highway
repairable by the inhabitants at large, but was
a " street " within the meaning of the Private
Street Works Act, 1892, and that the frontagers
were liable for repairs : — Held (reversing the
judgment of the Court of Appeal), that as there
was evidence in support of this finding the
Court had no power to set it aside. lb.
Dedication — Evidence — Repairs — Liability of
Parish.] — A road may be " made by and at
the expense of " an individual within the
meaning of section 23 of the Highway Act,
1835, if he has allowed the public by con-
tinuous user to acquire a right of way over his
land, though he has never laid out and formally
dedicated a road over the land in question ;
and if there be no evidence that the road was
so made till after the passing of the Highway
Act, 1835, the burden of repairing it cannot be
cast on the inhabitants at large. Leigh Urban
Council V. Ki7ig (70 L. J. K.B. 313; [1901]
1 K.B. 747) and Reg. v. Thonms (7 E. & B.
399) disapproved. CababS v. \V altoji-upon-
Thames Urban Council, 83 L. J. K.B. 243;
[1914] A.C. 102 ; 110 L. T. 674 ; 78 J. P. 129 ;
12 L. G. R. 104; 58 S. J. 270— H.L. (E.)
Judgment of the Court of Appeal (82 L. J.
K.B. 133; [1913] 1 K.B. 481) affirmed. lb.
Unmetalled Strip — Intention to Dedicate
Whole Width of Road— Evidence.] —The ap-
pellant, who was the owner of land, proposed
to develop it as a building estate, and deposited
with the local authority a plan, as required
by the local regulations, shewing a road of a
certain width with a footpath on either side
of it. Houses were built along one side of
this road, and the half of the road nearest to
the houses was made up and metalled, but
the other half was left unmetalled. The
whole length of it was fenced, and there was
evidence that persons had used the road as
they pleased both on foot and with vehicles.
The owner of land adjoining the unmetalled
half of the road claimed a right to pass on to
it from his property both on foot and with
vehicles : — Held, that there was evidence of
an intention on the part of the appellant to
dedicate the whole width of the road to the
public, and that the adjoining owner had the
right which he claimed. Rowley v. Tottenham
Urban Council, 83 L. J. Ch. 411; [1914] A.C.
95 ; 110 L. T. 546 ; 78 J. P. 97 ; 12 L. G. R. 90 ;
58 S. J. 233; 30 T. L. R. 168— H.L. (E.)
Judgment of the Court of Appeal (82 L. J.
Ch. 83; [1912] 2 Ch. 633) affirmed. //>.
Public User since 1820 — Land in Lease
- Dedication by Previous Owner — Presump-
tion.]— In an action liy a landowner against a
local authority claiming a declaration that
there was no right of way over a footpath upon
his land leading from Lucas Green to Bisley
in the county of Surrey, it appeared that the
owner in fee occupied the land up to 1822,
when the land was leased to a tenant until
1842; and that from 1842 up to the commence-
ment of the present action the land was held
55
1731
WAY.
1732
by various tenants upon tenancy from year to
year. Evidence of reputation was given as to
user by the public prior to 1822, and as to
subsequent user up to the commencement of
the action : — Held, that the Court could pre-
sume dedication prior to 1822, and that the
user vi'hile the land was on lease was material
as supporting evidence of prior dedication by
the owner ; that such dedication had been
established, and that therefore the plaintiff's
claim failed. ShearbuTn v. Chertsey Rural
Council, 78 J. P. 289; 12 L. G. E. 622—
Astburv, J.
Presumption — Onus of Proof — User.] —
The plaintiffs sought a declaration that a cer-
tain portion of a lane was a public highway
repairable by the defendants. At each end of
the portion in question the lane was admittedly
a public highway for all purposes repairable
by the inhabitants at large. The portion in
question was admitted by the defendants only
to be a public footpath : — Held, first, on the
evidence, both positive and negative, that the
portion of the lane in question was a public
highway for all purposes and was repairable
by the defendants. Applying the procedure as
to the onus probandi at the trial of an indict-
ment of the inhabitants of a parish for non-
repair of a highway, — Held, secondly (a), that,
although the onus of proving that the lane
was a highway was on the plaintiffs, proof
of user of such a nature that dedication might
be reasonably inferred therefrom was sufficient,
without proving that during the period of
user there was a person capable of dedicating :
it was for the defendants to prove that there
was no such person, if they relied upon that
fact ; (b) that the mere fact that there was no
evidence that the defendants had ever repaired
the way, although relevant on the question
whether the way was a public w'ay or not,
did not rebut the inference based on public
user, and was not by itself evidence to displace
their liability to repair ; but if coupled with
evidence that some one else was liable, it
might have some weight ; (c) that the plaintiffs
need not give evidence of the inhabitants'
liability to repair before 1835 ; (d) that sec-
tion 23 of the Highway Act, 1835, should be
regarded as having opened to the inhabitants,
and thus to persons in the position of the
present defendants, a new method of dis-
placing their liability at common law, and not
as having imposed on persons in the position
of the present plaintiffs a new onus of proof ;
and therefore that it was for such defendants
to prove that the way in question was a way to
which the section applied, and not for such
plaintiffs to prove that the section had no
application, although it was possible that if
the defendants once proved that the way in
question was a way to which section 23 applied,
the onus of proving that the formalities re-
quired to make the defendants liable had been
observed might be shifted. Held, thirdly,
that the decision of the Court was without
prejudice to the question whether the part of
the lane in question was or was not a highway
unnecessary for public use within the provi-
sions of the Highway Act. Ait. -Gen. v.
Watford Rural Council, 81 L. J. Ch. 281;
[1912] 1 Ch. 417; 106 L. T. 27; 76 J. P. 74;
10 L. G. K. 364— Parker, J.
Wayside Strip— Hedge.]— The plaintiffs
claimed that a certain highway extended over
the whole width between two hedges. One of
these hedges was a natural hedge : — Held,
that at its origin it had no relation to the
highway, and therefore that there was no
presumption that all that lay between the two
hedges had been dedicated for highway pur-
poses. Att.-Gen. v. Lindsay-Hogg, 76 J. P.
450— Eve. J.
Roadside Waste — Inclosure — Presumption
— Right of Way.] — When the lord of a manor
incloses a strip of land by the side of a public
highway, and within a few feet only from the
metalled portion of the road, then, whatever
the presumption may have been before, a pre-
sumption thereafter arises that what he leaves
between the metal and his fence is dedicated
to the public. Copestake v. West Sussex
County Council, 80 L. J. Ch. 673; [1911]
2 Ch. 331; 105 L. T. 298; 75 J. P. 465;
9 L. G. R. 905— Parker, J.
Any presumption as to the extent of a
public right of way ought to be drawn with
reference to all the circumstances existing at
the time when the question as to the extent
of the public right arises, and it would not
be right to raise a presumption from a state
of circumstances proved to have existed thirty
or fifty years ago, ignoring all that had
happened since. 7b.
The expression " on the side or sides of
any turnpike road " in section 118 of the
Turnpike Roads Act, 1822, means not
separated from the road by any existing
fence. Common or waste land does not in-
clude land w-hich has been inclosed from the
road in part since the middle of the nine-
teenth century and in part from 1892. lb.
User of Street by Purchasers.] — No pre
sumption of dedication arises if an owner lays
out such a street and grants the right of
using it to purchasers of plots upon payment
of a yearly sum for its upkeep until it shall
be taken over by the local authority. The in-
ference in such a case is that he does not
intend it to become a highway until it has
been taken over. The fact that the road has
been cleansed, lighted, and patrolled by the
authority makes no difference. Kirby v.
Paignton Urban Council, 82 L. J. Ch. 198;
[1918] 1 Ch. 337 ; 108 L. T. 205 ; 77 J. P. 169 ;
11 L. G. R. 305; 57 S. J. 266— Neville, J.
Cul-de-sac] — User of a cul-de-sac by
persons going up it for the purpose of know-
ingly committing a trespass on land beyond
will not raise anv pi-esumption of dedication.
76.
Question of Intention — Presumption —
Absolute Owner — Evidence.] — A public rignt
of way (if not created by statute) must have
originated in dedication by the owner or
owners of the land over which it passes.
Dedication is a question of intention, but a
person cannot dedicate what is not his own.
It may be established by proof of definite
1733
WAY.
1734
acts of dedication on the part of the owners,
or it may be inferred from use and enjoyment
on the part of the public. But the use and
enjoyment from which it can be inferred
must be use and enjoyment as of right known
to the owner and acquiesced in by him.
Again, this knowledge and recognition on the
part of the owner may itself be inferred from
the fact that the use and enjoyment has been
so open and so notorious as of right as to
give rise to the presumption that the owner
must have been aware of and acquiesced in
it ; or during living memory the use and
enjoyment has been such that had there been
an absolute owner capable of dedicating the
way, dedication would have been inferred;
and if at the same time the circumstances are
consistent with such use and enjoyment having
been still more ancient, a jury may properly
infer dedication by some owner before living
memory. If, however, it be shewn that before
a definite date the rights could not have
existed, and since that date there has been
no owner capable of dedicating the way,
dedication cannot be inferred. Webb v.
Baldwin, 75 J. P. .564— Parker, J.
Strip at Side of Old Turnpike Road —
Presumption of Dedication.] — In respect of a
strip of waste land between the metalled road
and an ancient fence on one side thereof over
which the public had walked for over forty
years without restriction, — Held, that the
presumption of dedication to the use of the
public was not rebutted by evidence that the
plaintiff as the lord of the manor had given
permission for the erection thereon of tele-
phone posts, had given permission to deposit
stuff thereon, and had claimed to take
trimmings therefrom. East v. Berkshire
County Council, 106 L. T. 65: 76 J. P. 3.5—
Neville, J.
Dedication Subject to Gates.] — Per
Scrutton, J. : There may be a dedication of a
road with a right to put a gate to keep beasts
from straying. There may also be a dedica-
tion by a landowner with liberty to reserve
gates for the convenience of his own farming
operations. Att.-Gen. v. Meyrick, 79 J. P. 515
^Scrutton, J.
Footway in Street — Evidence of Dedica-
tion to Public — Obstruction.] — In 1852 a plot
of land in a street, a public highway repair-
able by the local authority, was demised by
a lease for 999 years. Three cottages were
erected on it, with a footway in front abutting
on the street and paved with cobbles. Between
twenty and forty years ago half the width of
the cobble stones was taken up and flags were
substituted, but by whom there was no evi-
dence to shew. The other half in front of
the cottages remained as it was. In 1890 the
cottages were converted into shops. Up to
about fifteen years ago the cobbled part was
repaired by the leaseholder, and then flags
were substituted for the remaining cobbles by
the local authority, who had since repaired
the whole footway. From 1890 the occupier
of one of the shops had a show case standing
on the footway in front of his shop, but the
public continued to use the whole footway
except so far as they were obstructed by the
show case. The shopkeeper was prosecuted
for obstructing the passage of the public over
the footway, and the Justices found that the
user of the footway by the public since 1852
imtil the cottages were turned into shops — a
period of forty years — was a dedication of the
land the subject of the lease to the public, and
that such user had been so notorious as to
lead to the presumption that the lessor had
acquiesced in the dedication, and that the
obstruction since 1890 was not sufficient to
rebut the presumption of dedication. The
shopkeeper was accordingly convicted. On
appeal by Special Case, — Held, that the con-
viction must be affirmed. The question was
one of fact for the Justices, who were entitled
upon the statements in the Case to find that
the early user of the footway by the public
was evidence upon which they could presume
dedication, and that the user subsequent to
1890, when the show case was first erected,
did not rebut the evidence of dedication at
an earlier date. Openshaw v. Pickering,
77 J. P. 27; 11 L. G. E. 142— D.
Land under Administration of Court
of Chancery and Chancery Division — Land
under Building Lease — Gul-de-sac] — H. was
the lessee under a lease granted in 1849
of a house erected under a building agreement
of 1844. The garden of the house abutted
upon a narrow roadway leading only to a
cul-de-sac. H. extended the house to within
twenty feet (the prescribed distance) from the
centre of this roadway, and at the instance of
the trustees of the estate refused to comply
with the requirements of a notice of the
London County Council under the London
Building Acts to set back the extension so
that the external fence or boundary of the
forecourt between the house and the roadway
should be at the prescribed distance from the
centre of the roadway, on the ground that
there had never been any dedication to the
public as a highway. The cul-de-sac had been
lighted by the local authority since 1876, and
in 1891 had been partially paved and sewered
by them under section 105 of the Metropolis
Management Act, 1855. In 1894 a man had
been prosecuted by the local authority, and
convicted of causing an obstruction by allow-
ing a van to stand in the cul-de-sac for an
unreasonable length of time. From 1854 to
the present time the estate had been under the
administration, first of the Court of Chancery,
and subsequently of the Chancery Division,
and no consent to or order of the Court for
the dedication of the roadway as a highway
had been obtained or applied for : — Held, that
since 1854 there could have been no dedication
of the roadway without the sanction of the
Court. That there could not in any case have
been an effective dedication in the absence of
evidence to shew — first, that such roadway
and cul-de-sac were used by the public as dis-
tinguished from persons having business on
the premises ; secondly, that the freeholders
ought to have anticipated that the roadway
and cul-de-sac would be used by the public,
and nevertheless did not take measures to pre-
vent such user; or thirdly, that there was
otherwise an intention to dedicate on the part
1735
WAY.
1736
of the freeholders. London County Council v.
Hughes, 104 L. T. 685; 9 L. G. R. 291;
7.5 J. P. 239— D.
Cul-de-sac in City of London.] — A court
in the City of Loudon, having a number of
small houses and a warehouse erected around
it, and having its only means of access by
way of a passage leading through the ground
floor of a building fronting a street, was
included in an area taken, inclosed and
cleared in 1878 by the then local authority
for the purposes of the Artisans' and
Labourers' Dwellings Improvement Act, 1875.
The passage and the building through which
it passed were not included in the area so
taken, and the passage was subsequently used
for private purposes only. The improvement
scheme was ultimately abandoned, and in
1896 the area taken was sold in building lots.
In an action by the owner of the building
through which the passage led to restrain the
owners and occupiers of building lots in rear.
which included part of the site of the court,
from removing a barrier erected to exclude
them from the use of the passage, — Held,
after consideration of the sufficiency of the
evidence to raise the presumption of dedica-
tion, that the court had been, and the passage
still remained, a highway, and that the defen-
dants were entitled to remove the barrier.
Josseholm v. Weiler, 9 L. G. R. 1132 ; 75 J. P.
513— Scrutton, J.
Accommodation Passage Constructed for
Removal of Refuse from Houses — No Evidence
of Public User.] — In 1898 a passage intended
as a means of access to the backs of houses
which had just been built, for the removal
of house refuse, &c., was constructed in pur-
suance of the by-laws of the local authority.
It was a cul-de-sac six feet wide. The local
authority kept it scavenged, but had never
adopted it as a highway, though they had
made it up and charged the expenses on the
frontagers. It was used by some thirty or
forty people a day, but there was no evidence
of user of it by any member of the public as
such : — Held, that the public had no right of
way over the passage. Vine v. Wenham,
84 L. J. Ch. 913; 79 .J. P. 423— Sargant, J.
Public Park — Dedication — Park Purposes —
Widening Street — Improvement of Park.] —
The Court will not readily infer dedication to
the public. Where a corporation purchased
fifty-three acres, forty of which were intended
to be used as a public park, the Court would
not infer dedication of the whole of the fifty-
three acres simply because the remaining
thirteen acres were not fenced off and were
used by the public as part of the park.
Att.-Gen. v. Bradford Corporation, 9 L. G. R.
1190; 75 J. P. 553; 55 S. J. 715— Eve, J.
2. Usee of.
a. Obstruction.
See also Vol. XV. 37, 1878.
Queues in Highway Outside Theatre.] — The
owners of a theatre held three performances
daily at 2.80, 6.20, and 9.10 p.m., and were
in the habit of opening the doors of the theatre
about a quarter of an hour before each per-
formance. As a result, persons desiring to
obtain seats in the theatre used to attend in
large numbers before each performance and
were then formed by the police into a queue
extending past the plaintiffs' business premises
in the same street. The police were paid by
the defendants in respect of their extra ser-
vices. In an action by the plaintiffs against
the owners of the theatre claiming an injunc-
tion to restrain them from carrying on their
theatre so as to cause a nuisance to the
plaintiffs by an obstruction of the access to
and egress from their business premises,
Joyce, J., held that an obstruction had been
caused by the defendants amounting to a
nuisance, but in place of granting an injunc-
tion accepted an undertaking from them that
they would open the doors of the theatre
earlier at the two morning performances : —
Held, by the Court of Appeal (Phillimore,
L.J., dissenting), that there had been such
an obstruction by the crowds at the two earlier
performances as to amount to a nuisance, and
that the defendants were responsible for the
collection of the crowds and could be prevented
at the suit of the plaintiffs, as persons
specially affected, from carrying on their
theatre so as to cause the nuisance. Lyons v.
Gulliver, 83 L. J. Ch. 281; [1914] 1 Ch. 631;
110 L. T. 284; 78 J. P. 98; 12 L. G. R. 194;
.58 S. J. 97; 30 T. L. R. 75— C.A.
Rex V. Moore (1 L. J. M.C. 30; 3 B. & Ad.
184), Rex V. Carlile (6 Car. & P. 636), Walker
V. Brewster (37 L. J. Ch. 33; L. R. 5Eq.25),
Inchbald v. Robinson and Barrington (L. R.
4 Ch. 388), Barker V. Penley (62 L. J. Ch. 623;
[1893] 2 Ch. 447), and Wagstaff v. Edison
Bell Phonograph Corporation (10 T. L. R. 80)
discussed and followed. lb.
Per Phillimore, L.J. : It is for the police
to regulate the traffic, and a trader cannot he
held responsible for crowds that assemble
because of present attractions such as an in-
viting shop window or future attractions such
as a theatrical performance. lb.
Nuisance — Unlawful Erection of Stand in
Highway — Obstruction of Yiew — Right of
Resident to Maintain Action.] — The defen-
dants, a Metropolitan borough council, in
accordance with a resolution duly passed,
erected a stand in a certain highway named
B. Place, for the convenience and at the
expense of members of the council in order
to enable them to view the funeral procession
of King Edward 7 passing along E. Road.
The plaintiff, who occupied certain premises
in B. Place, was in the habit of letting
windows in her house for the purpose of view-
ing public processions passing along E. Road.
The stand which the defendants erected
obstructed the view of the funeral procession
from the plaintiff's house, so that the plaintiff
was imable to let the windows in her house :
— Held, that, as the stand was unlawfully
erected by the defendants in a public highway
and constitutes a public nuisance, the plaintiff
could maintain an action for the special
damage which she had sustained through the
loss of view caused by the erection of the
stand ; and further, that the action was
1737
WAY
1738
properly brought against the defendants in
their corporate capacity. Campbell v. Pad-
dinglon Borough Council, 80 L. J. K.B. 739;
[1911] 1 K.B. 869; 104 L. T. 394; 75 J. P.
277: 9 L. G. R. 387; 27 T. L. E. 232— D.
Quarry in Land Adjoining Road — Col-
lapse of Fence and Road — Duty of Present
Occupier to Restore — Remedy of Local
Authority.] — Defendant owned and occupied
land, being a worked-out quarry, immediately
adjoining a public highway vested in an urban
district council and repairable by the inhabi-
tants at large. A prior owner of the land
had, in 1865, made the excavation in order
to quarry for limestone, and until then the
surfaces of the road and the land had been
on the same level. The excavation being a
source of danger and obstruction to persons
using the road, the excavator, to protect them
and the road, built alongside the road a wall,
the bottom of which rested on a ledge of lime-
stone left ungotten for the purpose and served
as a retaining wall for the subsoil of the road
and as a fence wall above its surface. In
February, 1913, part of the wall collapsed and
fell into the quarry, and in consequence a
considerable part of the subsoil of the road
and of its surface fell in also, the road
thus becoming impassable, a source of danger
to persons attempting to use it, and a nui-
sance, liable under section 3 of the Quarr}'
(Fencing) Act, 1887. to be dealt with sum-
marily under the Public Health Act, 1875 : —
Held, first, that there was also a common
law obligation on the possessor of the excava-
tion to keep it fenced oif whether it was made
before or after his possession began, and
whether he was or was not liable to his land-
lord, if any; and secondly, that in an action
by the Attorney-General at the relation of the
council, a mandatory order must be made on
defendant to abate the nuisance by restoring
the road to its condition prior to the subsidence
and by rebuilding the wall or providing some
other reasonable fence between the road and
the quarry. Greenwell v. Low Beechburn
Colliery Co. (66 L. J. Q.B. 643; [18971 2 Q.B.
165) distinguished. Att.-Gen. v. /?oe,1S4L. J.
Ch. 322; [19151 1 Ch. 235; 112 L. T. 581;
79 J. P. 263; 13 L. G. R. 335— Sargant, J.
Chalkpit — Intervening Strip of Land —
Danger to Public — Compulsory Fencing — " In
any situation fronting," &c.] — The words, " If
in any situation fronting, adjoining, or abut-
ting on any street or public footpath, any
. . . excavation ... or bank is . . . danger-
ous to the persons lawfully using the street or
footpath," in section 30 of the Public Health
Acts Amendment Act, 1907, cover the case of
any excavation, or bank, that is sufficiently
near to any street, or footpath, to cause
danger to those who are lawfully using it,
even although the excavation, or bank, does
not itself actually front, adjoin, or abut on
the street, or footpath. The owner of such ex-
cavation, or bank, may therefore be required
by the local authority, under section 30, to
erect a fence to prevent any danger to the
persons using the highway. Carshalton Urban
Council V. Burrage, 80 L. J. Ch. 500; [1911]
2 Ch. 133; 104 L. T. 306; 75 J. P. 250;
9 L. G. R. 1037 ; 27 T. L. R. 280— Neville, J.
Sale and Conveyance of Land to Local
Authority for Tipping Refuse — Deposit of
Refuse — Overflow of Rain Water from Deposit
Creating Gullies in Highway.] — A sale of
land to a local authority for the purpose
of tipping refuse thereon by a vendor who
retains adjoining land does not impliedly
authorise the local authority to tip refuse in
such a way as to cause a nuisance on the
adjoining land when such tipping can be done
without causing the nuisance. Whether, in
the event of it being impossible to use the
land for tipping without creating the nuisance,
the local authority would be so authorised,
qucere. Priest v. Mancliester Corporation,
8i L. J. K.B. 1734; 13 L. G. R. 665—
Sankey, J.
An owner of land conveyed a portion thereof
to a local authority for the purpose of tipping
refuse thereon, the local authority purchasing
the same under the powers given to them by
the Public Health Act, 1875, and two local
Acts. Subsequently the owner of the remain-
ing portion sold it to a purchaser, who formed
a street thereon and built houses abutting on
the said street. The local authority, acting
under their powers, from time to time
deposited refuse on the land purchased by
them, with the result that the deposit,
gradually increasing in size and becoming
impervious to rain water, caused the rain
water, which previously to the deposit flowed
in a direction away from the street, to be
diverted and overflow into the street and form
holes or gullies therein dangerous to passers-
liy. The plaintiff, lawfully passing through
the street, fell into one of these gullies and
sustained personal injuries : — Held, that the
gully in the street was a nuisance caused by
the defendants without justification, and that
they were liable to the plaintiff in damages for
the injuries sustained by him. Woodman v.
Pwllbach CoUierxj Co. (ill L. T. 169: subse-
quently affirmed in H.L., 84 L. J. K.B. 874;
[1915] A.C. 634) followed. lb.
Premises Adjoining Highway — Highway
Authority Creating Nuisance thereon — Non-
liability of Frontager.] — On premises adjoin-
ing a highway, which were the property of
and occupied by the defendant, there was a
coal shoot formed by an opening at the bottom
of the wall of the house, abutting on the pave-
ment, which was part of the highway. In
1901 the local highway authority, acting under
^'^e provisions of the Private Street Works Act,
1892, raised the level of the pavement, and,
in order to preserve access to the coal shoot
1( ft an opening in the pavement. This con-
dition of the pavement remained until Octo-
l)or, 1914, when the plaintiff, in passing along
tlie pavement, put her foot into the hole, and
-suffered personal injuries, for which she
brought her action against the defendant : —
Held, that the action failed, inasmuch as,
where a nuisance is created by a highway
authority on a highway under their control,
Hie owner or occupier of the land adjoining
the highway is not liable for an accident
1739
WAY.
1740
caused bv the nuisance. Robbins v. Jones
(33 L. J. C.P. 1; 15 C. B. (n.s.) 221) fol-
lowed. Barker v. Herbert (80 L. J. K.B.
1329; [1911] 2 K.B. 633) discussed and dis-
tinguished. Horridge v. Makinson, 84 L. J.
K.B. 1294; 113 L. T. 498; 79 J. P. 484:
13 L. G. E. 868; 31 T. L. K. 389— D.
Semble {per Bailhache, J.), there was no
duty on the defendant to inspect the plans
prepared by the local authority in 1901 in
connection with the work of raising the level
of the pavement. lb.
Injury to Road by Traction Engine.] — The
use of a traction engine which by reason of
its excessive weight does substantial and
abnormal damage to a public road, adequate
for ordinary traffic, is a public nuisance, even
though the engine be constructed in compli-
ance with the provisions of the Locomotive
Acts, 1861 and 1865. In such a case the duty
cast upon a county council to repair such
damage, and the liability of a district council
to provide the funds for such repair, amounts
to special damage, so as to make the owner
of the traction engine civilly liable at the suit
of both bodies, suing jointly, for the cost of
repairing the road. Semble. such an action
could be maintained by either body suing
alone. Cavan County Council v. Kane, [1913]
2 Ir. R. 250— C.A.
Premises Abutting on Highway — Wall —
Right of Owner to Access — Right to Display
AdYertisements and to Repair Wall.] — An
owner of premises abutting on a highway has
a right of access for all purposes to the wall of
such premises, and may maintain an action
against a person who obstructs that access in
such a way as to conceal from the public
advertisements displayed upon the wall, or to
prevent the owner from repairing it. Cobb v.
Saxby, 83 L. J. K.B. 1817 ; [1914] 3 K.B. 822 ;
111 L. T. 814— Rowlatt, J.
Meeting Held on Highway — " Lawful public
meeting."] — A meeting held on a highway may
be a " lawful public meeting " within sec-
tion 1 of the Public Meeting Act, 1908.
Burden v. Rigler, 80 L. J. K.B. 100; [1911]
1 K.B. 337; 103 L. T. 758; 75 J. P. 36;
9 L. G. R. 71; 27 T. L. R. 140— D.
Roadway not Dedicated to the Public. 1
— Injunction granted restraining the holding
of a meeting at the junction of two roads on
the plaintiffs' property which had not been
dedicated to the public. Hampstead Garden
Suburb Trust v. Denbow, 77 J. P. 318—
Phillimore, J.
Right of Person Obstructed to Go on Adjoin-
ing Land.] — A level crossing over a railway
formed part of an old road which had been
set out in an inclosure award as a private
road for the use of persons who had land
abutting on the road, and certain other
persons, including the defendants. By agree-
ment between the plaintiff's predecessor in
title and the railway company this level cross-
ing was closed by the railway company. The
defendants, finding that this obstruction
existed, went over land belonging to the
plaintiff, whereupon the plaintiff sued them
for trespass : — Held, that the action failed,
inasmuch as the plaintiff, being a party to
the closing up of the right of way, could not
complain of the defendants deviating on to
his land in order to get past the obstruction.
Stacey v. Sherrin, 29 T. L. R. 555— D.
Driver not Keeping to Near Side so as to
Allow Free Passage on Off Side — Consent of
Passing Driver to Pass on Near Side.] —
The appellant, the driver of a waggon, was
on the wrong or off side of the road, when a
motor car approached from behind in order to
pass. The driver of the waggon signalled to
the motor car to pass him on the wrong or
near side, which it did, without having been
delayed or inconvenienced. No other traffic
was on that part of the road at the time : —
Held, that on the above facts no offence had
been committed by the appellant under sec-
tion 78 of the Highway Act, 1835, which
enacts that any person who shall not keep
his waggon, cart, or carriage on the near side
of the road for the purpose of allowing a free
passage for other waggons, carts, or carriages,
shall be liable to a penalty. Nuttall v.
Pickering, 82 L. J. K.B. 36 : [1913] 1 K.B. 14;
107 L. T. 852 ; 77 J. P. 30 : 10 L. G. R. 1075 ;
23 Cox C.C. 263— D.
Side Road Entering Main Road — Duties
of Drivers.] — While it is the duty of vehicles
approaching a main road from a side road to
give way to vehicles on the main road, this
rule does not absolve vehicles on the main
road from the duty of approaching the
entrance to the side road with caution.
Macandrew v. Tillard ([1909] S. C. 78) com-
mented on and explained. Robertson v.
Wilson, [1912] S. C. 1276— Ct. of Sess.
Traffic Regulations — Urban Authority —
Constable Stationed at Crossings to Direct
Traffic — Implied Obligation on Part of Drivers
of Vehicles to Obey Signal to Stop or Come
on,] — Under section 21 of the Town Police
Clauses Act, 1847, by which a penalty is
imposed upon drivers of vehicles in streets for
the breach of traffic regulations, the corpora-
tion of B. made a regulation that constables
stationed at crossings of certain streets should
direct drivers of vehicular traffic approaching
any such crossing by word or signal to stop
or come on ; but the regulation did not go on
to state that the driver should comply with
the constable's direction or signal or that in
disobeying it he should be guilty of an offence.
The driver of a motor cab disregarded the
direction of a constable to stop at a crossing
and was convicted by Justices for a wilful
breach of the regulation, and fined : — Held,
that the driver had incurred a penalty under
section 21 of the Act, since the regulation
implied an obligation on his part to obey the
direction or signal of the constable which
he had wilfully disobeyed, and that the
conviction must be affirmed. Dudderidge v.
Rawlings, 108 L. T. 802; 77 J. P. 167;
11 L. G. R. 513; 28 Cox C.C. 366— D.
Animals on Highways.] — See Animals.
1741
WAY.
1742
b. User of Bicycles.
See also Vol. XV. 54, 1884.
Motor Bicycle — Lights — Red Light Behind
Bicycle.] — The word " motor car " in
Article II. paragraph 7 (i) of the Motor Cars
(Use and Construction) Order, 1904, includes
a " motor bicycle," and consequently a motor
bicycle must carry a red light visible behind
in addition to a white light visible in front :
— So held, by Ridley, J., and Bailhache, J.
(Scrutton, J., dissentiente). See now Motor
Cars (Use and Construction) Amendment
Order (No. II.), 1913. Webster v. Terry,
83 L. J. K.B. 272; [1914] 1 K.B. 51;
109 L. T. 982 ; 78 J. P. 34 ; 12 L. G. R. 242 ;
30 T. L. R. 23— D.
General Identification Mark — Use of Motor
Cycle without Authority of Manufacturer —
Obligation to Keep Record.] — By section 2,
sub-section 4 (6) of the Motor Car Act, 1903,
the council of any county in which the business
premises of any manufacturer of motor cars
are situated may, on payment of a certain
annual fee, assign to the manufacturer " a
general identification mark which may be
used for any car on trial after completion, or
on trial by an intending purchaser. ..."
By Article XII. of the Motor Car (Registra-
tion and Licensing) Order, 1903, " On every
occasion on which the general identification
mark is used on a motor car, the manufacturer
or dealer shall keep a record of the dis-
tinguishing number placed on or annexed to
the identification plates on that occasion, and
of the name and address of the person driving
the motor car on that occasion. ..." The
appellants, motor cycle manufacturers, had
had a general identification mark assigned to
them which was af&xed to one of their motor
cycles. One of their employees, without the
appellants' authority, took the motor cycle to
his home, and left it there for some days
while he was away on a holiday. In his
absence his brother, without the knowledge
of the appellants, took out the cycle and used
it with the mark upon it : — Held, that as the
motor cycle was used on the occasion in ques-
tion without the knowledge or authority of
the appellants, they had not committed an
offence under Article XII. in not keeping a
record. Phelon (f Moore v. Keel, 83 L. J.
K.B. 1516; [19141 3 K.B. 165; 111 L. T. 214;
78 J. P. 247; 12 'L. G. R. 950; 24 Cox C.C.
234— D.
c. User of Locomotives.
i. Generally.
See also Vol. XV. 55, 1885.
Agricultural Locomotive — Licence — Exemp-
tion— Locomotive "employed solely for the
purposes of " Farm — Carrying Produce to
Market.] — By section 9, sub-section 1 of the
Ijocoraotives Act, 1898, " Every locomotive
shall be licensed by a county council, provided
that this enactment shall not apply to any
agricultural locomotive." By sub-section 10
if any person uses a locomotive on any high-
way in a county in which the locomotive is
not licensed, without payment of a specified
fee, he is liable to a penalty. By section 17
the expression " agricultural locomotive "
includes " any locomotive, the property of one
or more owners or occupiers of agricultural
land employed solely for the purposes of their
farms, and not let out on hire." A motor
traction engine belonging to the respondent
was employed by him to carry produce from
his fariu to market for the purpose of sale.
The market was in the County of London,
where the engine was not licensed : — Held,
that the engine was at the time being
emploj'ed solely for the purposes of the respon-
dents' farm, and was therefore an " agricul-
tural locomotive " within the exemption in
section 9, sub-section 1. London County
Council V. Lee, 83 L. J. K.B. 1373; [1914]
3 K.B. 255; 111 L. T. 569; 78 J. P. 396;
12 L. G. R. 733 ; 24 Cox C.C. 388 ; 30 T. L. R.
525— D.
Hauling Manure to Farm — Exemption
from Licence.] — A traction engine used for
drawing to a farm waggons laden with night
soil, which has been sold by the owner of the
engine to the farmer for use as manure, is used
for an agricultural purpose within section 17,
sub-section 1 of the Locomotives Act, 1898,
and therefore it is an agricultural locomotive
within section 9, and a person using it on a
highway does not require under the latter sec-
tion to take out a licence from a county council,
or if it is used in a county where it is not
licensed to pay a fee to the council of that
county. Cole v. Harrop, 79 J. P. 519;
13 L. G. R. 1223 ; 31 T. L. R. 599— D.
Requirement as to Tv7o Independent
Brakes.] — Upon an information under section 7
of the Locomotives on Highways Act, 1896,
the appellant was convicted of having unlaw-
fully caused a steam motor car, exceeding
two tons in weight unladen, to be used on a
highway without having a brake, independent
of the engine, in good working order and of
such efficiency that the application of it would
cause two of its wheels on the same axle to
be so held that they would be effectively pre-
vented from I'evolving. At the hearing it was
proved that the only means by which the
wheels on the back axle could be prevented
from revolving were either by reversing tlie
engine or by applying a fly-wheel brake. If
the engine were out of gear the fly-wheel
brake could not act, nor could the engine be
reversed so as to operate as a brake : — Held,
that the motor car had no brake which was
independent of the engine, and that the
appellant was properly convicted. Camion
V. Jefford, 84 L. J.' K.B. 1897; [1915]
3 K.B. 477; 113 L. T. 701; 79 J. P. 478;
13 L. G. R. 944; 31 T. L. R. 489— D.
Steam Roller — No Weight Plate Affixed
thereon.] — A steam road roller is a locomotive
within the meaning of section 12 of the Loco-
motive Act, 18()1, and must therefore have its
weight conspicuously and legibly affixed
thereon. Waters v. F.ddison RolUnq Car Co.,
83 L. J. K.B. 1550; [1914] 3 K.B. 818;
111 L. T. 805 ; 78 J. P. 327 ; 12 L. G. R. 1232 ;
30 T. L. R. 587— D.
1743
WAY.
1744
Locomotive Drawing Waggons — Weight
Unloaded of " Waggon " — Threshing Machine
— Straw Trusser,] — By section 2 of the Loco-
raotives Act, 1898, " The weight unloaded of
every waggon drawn or propelled by a
locomotive shall be conspicuously and legibly
affixed thereon, and every owner not having
affixed such weight shall be liable for each
offence, on summary conviction, to a fine not
exceeding five pounds, ..." By section 17,
sub-section 1 : "In this Act, unless the con-
text otherwise requires, . . . The expression
' waggon ' includes any truck, cart, carriage,
or other vehicle " : — Held, that a threshing
machine and a straw trusser or presser affixed
by bolts and screws to a framework, which
was in turn attached to the wheels upon
which the machines travelled, were waggons
within the meaning of section 2 of the Act.
Held also, that the word " waggon " in secr
tion 2 was not confined to vehicles designed to
carry or capable of carrying loads. Smith v.
Pickering, 84 L. J. K.B. 262; [1915] 1 K.B.
326 ; 112 L. T. 452 ; 79 J. P. 118 ; 13 L. G. E.
175; 31 T. L. R. 55— D.
Plough Trains — Number of Men in Attend-
ance.]— A by-law made by a county council
under section 6 of the Locomotives Act, 1898,
provided that " a person in charge of a loco-
motive drawing two or more loaded or unloaded
waggons shall not cause or suffer the locomotive
to travel on any highway without having,
first, a cord or other efficient means of com-
munication extending from the rearmost
waggon to sucli locomotive; and secondly, a
person who shall (except during the time it is
necessary for him to leave his position in order
to comply with any statutory regulation or
by-law relating to the use of locomotives on
highways) travel in the rear of such waggons.
..." : — Held, that in the case of two plough
trains, which are entitled to have only five
men, the by-law was complied with by having
the fifth man in the rear of the two trains.
Williams v. Wood. 78 J. P. 221; 12 L. G. E.
G46— D.
ii. Motor Cars and other Light Locomotives.
See also Vol. XV. 1889.
Registration — Licence — Motor Vehicles Used
for Haulage— Combined Weight of Motor and
Trailer.] — Where the procedure prescribed by
Article IV. (5) of the Heavy Motor Car Order,
1904, as to the registration and re-registration
of a heavy motor car used for haulage, has
been complied with, no licence under section 9
of the Locomotives Act, 1898, is required.
Pilgrim v. Simmonds, 105 L. T. 241:
9 L. G. E. 966; 75 J. P. 427; 22 Cox C.C. 679
— D.
Clause 5 of Article IV., which limits the
weight of a registered heavy motor car to
seven tons, deals only with the weight of the
motor vehicle, and has no application to the
weight of the trailer attached to it. Accord-
ingly, notwithstanding the general provision
of Article HI. of the Order, which limits the
weight of a heavy motor car to five tons, or
(with the weight of a vehicle drawn by it)
six and a half tons, it was held that a heavy
motor car previously registered (as weighing
only 2 tons 18 cwt.)^ and in use at the com-
mencement of the regulations in the Order
(March 1, 1905), and in fact weighing 6 tons
18 cwt., and used with a trailer weighing
2 tons 3 cwt., making 9 tons 1 cwt. in all,
could be used on a highway without a licence
under section 9 of the Locomotives Act,
1898. lb.
Excise Licence Duty — Method of Calcula-
ting " Horse power."]— The Finance (1909-10)
Act, 1910, lays down a scale for the Excise
licence duty payable in respect of motor cars,
depending upon the " horse power " of their
engines, and requires such horse power to be
calculated in accordance with regulations made
by the Treasury for the purpose. In a prose-
cution for keeping a motor car without a
proper licence, the magistrate found that the
Treasury regulations as applied to the par-
ticular engine in question were erroneous,
and that the horse power of the engine,
according to which the duty had been paid,
was in fact less than that calculated in
accordance with such regulations, and he
therefore dismissed the summons : — Held,
that the statute does not refer to true horse
power as the basis of the scale of duties, but
to a horse power calculated according to the
Treasury regulations, and that the person
who kept the motor in question should have
been convicted accordingly. London County
Gomicil V. Turner, 105 L. T. 380; 9 L. G. R.
1155; 75 J. P. 551; 22 Cox C.C. 593— D.
General Identification Mark — Use of Motor
Cycle without Authority of Manufacturer —
Obligation to Keep Record.] — By section 2,
sub-section 4 (b) of the Motor Car Act, 1903,
the council of any county in which the business
premises of any manufacturer of motor cars
are situated may, on payment of a certain
annual fee, assign to the manufacturer " a
general identification mark which may be
used for any car on trial after completion, or
on trial by an intending purchaser. ..."
By Article XII. of the Motor Car (Eegistra-
tion and Licensing) Order, 1903, " On every
occasion on which the general identification
mark is used on a motor car, the manufacturer
or dealer shall keep a record of the dis-
tinguishing number placed on or annexed to
the identification plates on that occasion, and
of the name and address of the person driving
the motor car on that occasion. . . ." The
appellants, motor cycle manufacturers, had
had a general identification mark assigned to
them which was affixed to one of their motor
cycles. One of their employees, without the
appellants' authority, took the motor cycle to
his home, and left it there for some days
while he was away on a holiday. In his
absence his brother, without the knowledge
of the appellants, took out the cycle and used
it with the mark upon it : — Held, that as the
motor cycle was used on the occasion in
question without the knowledge or authority
of the appellants, they had not committed
an offence under Article XII. in not keeping
a record. Phelon ({■ Moore v. Keel, 83 L. J-
K.B. 1516; [1914] 3 K.B. 165; 111 L. T. 214;
1745
WAY,
1746
78 J. P. 247; 12 L. G. R. 950; 24 Cox C.C.
234— D.
Expiration of Right to Use — Notice of
Expiration to User.] — The right to use a
general identification mark assigned on the
registration of a motor car under section 2,
sub-section 4 (b) of the Motor Car Act, 1903,
expires twelve months later, and it is no
defence to a charge of using a car on a public
highway without being registered, after the
expiration of the twelve months, that no notice
was given to the accused of the expiration of
that right. Caldwell v. Hague, 84 L. J. K.B.
543 ; 112 L. T. 502 ; 79 J. P. 152 ; 13 L. G. R.
297— D.
Allowing Motor Car to Stand on Highway —
" Unnecessary obstruction " — Offence " in con-
nection with the driving of a motor car."] —
A conviction under Article IV. (2) of the
Motor Cars (Use and Construction) Order,
1904, of the driver of a motor car for allowing
such car to stand on a highway so as to cause
an unnecessary obstruction thereof is not a
conviction for an offence " in connection with
the driving of a motor car " within section 4,
sub-section 1 of the Motor Car Act, 1903, and
that section therefore does not authorise the
indorsement of the driver's licence with par-
ticulars of the conviction. Rex v. Yorkshire
(W. R.) Justices; Shackleton, Ex parte,
79 L. J. K.B. 244; [1910] 1 K.B. 439;
102 L. T. 138; 74 J. P. 127; 8 L. G. R. 163;
22 Cox C.C. 280— D.
Speed Limit — Proof of Warning or Notice
of Intended Prosecution.] — In a prosecution
for a contravention of section 9 of the Motor
Car Act, 1903 (which imposes a speed limit),
the prosecution must prove that the warning
or notice of the intended prosecution required
by the section was given to the accused ; and
a conviction, without such proof, is bad.
Dickson v. Stevenson, [1912] S. C. (J.) 1—
Ct. of Just.
Heavy Motor Car — Axle Weight — Car
having One Axle Above and Another Below
Specified Axle Weight.]— Article VII. of the
Heavy Motor Car (Scotland) Order, 1905
[corresponding to Article VII. of the Heavy
Motor Car Order, 1904], provides that if a
heavy motor car has all its wheels fitted with
pneumatic tyres, the speed at which it may
be driven on the highway shall not exceed
" (a) Twelve miles an hour — where the regis-
tered axle weight of any axle does not exceed
six tons; and (6) Eight miles an hour — where
the registered axle weight of any axle exceeds
six tons " : — Held (dub. Lord Johnston), that
the speed limit for a car of the class referred
to of which the registered axle weight of the
front axle was 2 tons 2 cwts., and that of the
back axle over 6 tons, was eight, and not
twelve miles an hour. Auld v. Pearson,
[1914] S. C. (J.) 4-Ct. of Just.
Exceeding Speed Limit — Sufficiency of
Evidence.] — The driver of a motor car was
convicted of driving his car over a measured
distance at a speed exceeding the speed limit,
the only evidence being that of two constables,
who had })een stationed at either end of the
measured distance, and who deposed, the one
to the time at which the car entered, the other
to the time at which it passed out of the
measured distance. An objection to the
sufficiency of the evidence on the ground that
as each of these times was a fundamental fact
in the charge, it could not be established by
the uncorroborated testimony of a single
witness, was repelled and the conviction
sustained. Scott v. Jameson, [1914] S. C. (J.)
187— Ct. of Just.
Speed Limit in Royal Parks — Offence
against Park Regulation made Subsequent to
Motor Car Act, 1903 — Indorsement of Driver's
Licence.] — The offence of driving a motor car
in a Eoyal park at a speed exceeding the limit
fixed by a regulation made under the Parks
Regulation Act, 1872 (35 & 36 Vict. c. 15), by
a body therein authorised to make it, and in
existence when the Motor Car Act, 1903, came
into operation, is an offence within the pur-
view of section 4 of that Act, although the
regulation was made after the Act came into
operation : and therefore on a third conviction
for exceeding such speed limit the licence of
the person convicted must be indorsed. Rex
V. Plow d en ; Braithwaite, Ex parte, 78 L. J.
K.B. 733; [1909] 2 K.B. 269; 100 L. T. 856;
73 J. P. 266; 7 L. G. R. 584; 22 Cox C.C.
114; 25 T. L. R. 430— D.
Proof of Identity of Person Producing
Licence with Person Named therein.] — One
of the purposes of a licence to drive a motor
car issued under the Motor Car Act, 1903, is
the identification of the person to whom it is
issued, and the production thereof on due
demand to a constable constitutes prima facie
evidence that the particulars it contains refer
to the person producing it, and that he is the
person to whom it was issued. Secondary
evidence of such particulars may be given
although no notice to produce the licence at
the hearing has been given. Martin v. White,
79 L. J. K.B. 553; [1910] 1 K.B. 665;
102 L. T. 23; 74 J. P. 106; 8 L. G. R. 218;
22 Cox C.C. 236: 26 T. L. R. 218— D.
Proof of Previous Convictions — Identity
of Particulars in Licences of Defendant and
Person Previously Convicted.] — Where a de-
fendant, knowing that his identity was to be
the subject-matter of an enquiry, intention-
ally absented himself therefrom, the identity
of his name and address and the number and
place of issue of his licence with those of a
person previously convicted is evidence upon
which the identity of the defendant with such
person may be held to be established. lb.
The words " proof of the identity " in
section 18 of the Prevention of Crime Act,
1871, do not mean conclusive proof, but evi-
dence upon which a tribunal may find that
the identity has been proved. lb.
Lights — Failure to have Back Identification
Plate Illuminated — Defence of " taken all
steps reasonably practicable to prevent the
mark being obscured or rendered not easily
distinguishable."] — The driver of a motor
cycle on a public highway at a period between
1747
WAY
1748
one hour after sunset and one hour before sun-
rise was charged under Article XI. of the
Motor (Registration and Licensing) Order,
1903, with failing to keep a lamp burning
thereon so contrived as to illuminate every
letter or figure on the motor cycle : — Held,
that the driver of the motor cycle, being
charged with an offence under the Motor Car
Act, 1903, was entitled to avail himself of the
defence provided by section 2, sub-section 4 of
that Act, and to prove that he had taken all
steps reasonably practicable to prevent the
mark being obscured or rendered not easily
distinguishable. Printz V. Sewell, 81 L. J.
K.B. 905; [1912] 2 K.B. 511; 106 L. T. 880;
76 J. P. 295 ; 10 L. G. E. 665 ; 23 Cox C.C. 28 ;
28 T. L. R. 396— D.
Indorsement of Licence — Lights — Failure
to have Back Plate Illuminated — Offence in
Connection with the Driving of a Motor Car.]
— A conviction for failing to have the back
plate of a motor car illuminated during the
period prescribed by Article XI. of the Motor
Car (Registration and Licensing) Order, 1903.
is a conviction for an offence in respect of
which indorsement of the convicted person's
licence is required by section 4 of the Motor
Car Act, 1903. Brown v. Crossley, 80 L. J.
K.B. 478; [1911] 1 K.B. 603; 104 L. T. 429;
75 J. P. 177 ; 9 L. G. R. 194 ; 22 Cox C.C. 402 ;
27 T. L. R. 194— D.
No Proper Identification Mark — Size of
Letters — Conviction — Indorsement on
Licence.] — The applicant was summoned for
unlawfully using a motor car on a public
highway on which the identification mark was
not in conformity with the regulations made
by the Local Government Board. The letters
and figures of the identification were not of
the size prescribed : — Held, that in respect of
this offence the applicant's licence could be
indorsed. Rex v. Gill; McKim, Ex parte,
100 L. T. 858 ; 73 J. P. 290 ; 7 L. G. E. 589 ;
22 Cox C.C. 118— D.
Back Identification — Car Owned by Com-
pany— Plate not Illuminated — Conviction of
Company of Aiding and Abetting the Driver
— Intent.] — Where a driver of a motor car is
convicted in respect of the offence created by
section 2 of the Motor Car Act, 1903, and
Article XI. of the Motor Car (Registration
and Licensing) Order, 1903, of driving the
motor car on a public highway between one
hour after sunset and one hour before sunrise
without having the identification plate on the
back of the car illuminated, the company
owning such car may be convicted under sec-
tion 5 of the Summary Jurisdiction Act, 1848,
of aiding and abetting the driver of the car
in the commission of the offence, inasmuch as
the company must act through agents, and are
therefore responsible for their agents sending
out a car in an improper condition ; and it is
not necessary to prove a criminal intent on
the part of the company. Provincial Motor
Cab Co. V. Dunning, 78 L. J. K.B. 822;
[1909] 2 K.B. 599; 101 L. T. 231; 73 J. P.
387; 7 L. G. R. 765; 22 Cox C.C. 159;
25 T. L. R. 646— D.
Driving Without a Light — Indorsement
of Licence — " Offence in connection with the
driving of a motor car."] — A conviction under
the Motor Cars (Use and Construction) Order,
1904, for driving a motor car without a light is
a conviction for " an offence in connection with
the driving of a motor car " within the mean-
ing of section 4 of the Motor Car Act, 1903,
and the Justices are entitled under that sec-
tion to cause particulars of the conviction to
be indorsed upon any licence under the Act
held by the person so convicted. Symes,
Ex parte, 103 L. T. 428; 75 J. P. 33;
9 L. G. E. 154 ; 22 Cox C.C. 346 ; 27 T. L. R.
21— D.
Use of Powerful Lamps — Offence "in
connection with the driving of a motor car "
- Indorsement of Licence.] — By an Order of
the Secretary of State made under the Defence
of the Realm (Consolidation) Regulations,
1914, the use of powerful lamps on motor
cars was prohibited. The appellant was con-
victed of an offence under this Order. At
the time of the commission of the offence
he was driving the car : — Held, that he had
been convicted of an offence " in connection
with the driving of a motor car " within the
meaning of section 4, sub-section 1 of the
Motor Car Act, 1903, and was therefore liable
to have particulars of the conviction indorsed
upon his licence. Symes, Ex parte (103 L. T.
428), and Brown v. Crossley (80 L. J. K.B.
478; [1911] 1 K.B. 603) followed. White v.
Jackson, 84 L. J. K.B. 1900; 113 L. T. 783;
79 J. P. 447; 13 L. G. R. 1319; 31 T. L. R.
505— D.
Heavy Motor Car — User on Bridge — Notice
that Bridge Insufficient to Carry Motor Car
beyond Specified Weight — Notice Affixed in
Accordance with Regulations of Local Govern-
ment Board — Ultra Yires.] — Article XIV. of
the Heavy Motor Car Order, 1904, as amended
by the Heavy Motor Car (Amendment) Order,
1907, made by the Local Government Board,
provides that " With respect to the use of a
heavy motor car on a bridge forming part of
a highway the following regulations . . . shall
apply and have effect ; . . . W'here the person
who is liable to the repair of the bridge states
in a prescribed notice — (a) that the bridge is
insufficient to carry a heavy motor car the
registered axle-weight of any axle of which
exceeds three tons, or the registered axle-
weights of the several axles of which exceed
in the aggregate five tons, or any greater
weight specified in the prescribed notice . . .
the owner of any such heavy motor car shall
not cause or suffer the heavy motor car to be
driven, and the person driving or in charge
of the heavy motor car shall not drive the
heavy motor car upon the bridge except with
the consent of the person liable to the repair
of the bridge " : — Held, that this article is
intra vires the Local Government Board, and
therefore, where such a notice has been affixed
to a bridge by the person liable for its repair,
any one who drives over the bridge a heavy
motor car of a weight exceeding that men-
tioned in the notice is guiltv of an offence.
Lloyd V. Ross, 82 L. J. k!B. 578; [1913]
1749
WAY.
1750
2 K.B. 332; 109 L. T. 71; 77 J. P. 341;
11 L. G. E. 503 ; 23 Cox C.C. 460 ; 29 T. L. E.
400— D.
Offence Committed by Driver of Car — Re-
fusal of Owner to Give Information as to
Identification of Driver — Conviction — Parti-
cular Offence Committed by Driver not
Specified in Conviction of Owner.] — The appli-
cant was summoned and convicted under sec-
tion 1, sub-section 3 of the Motor Car Act,
1903, for having refused to give information
which it was within his power to give and
which might lead to the identification of the
driver of liis motor car, such driver having, it
was alleged, committed an offence against
section 1, sub-section 1 of the Act. Neither
the summons nor the conviction of the appli-
cant specified which of the four offences
enumerated in sub-section 1 the driver was
alleged to have committed : — Held, that on a
charge against the owner of a motor car under
section 1, sub-section 3, it is unnecessary to
do more than allege generally that the driver
has committed an offence under section 1,
snb-section 1, and therefore that the conviction
of the applicant was good although it did not
part.icularise which of the four offences enumer-
ated in section 1, sub-section 1, the driver had
committed. Beecham, Ex parte, 82 L. J.
K.B. 905; [1913] 3 K.B. 45; 109 L. T. 442;
23 Cox C.C. 571 ; 29 T. L. E. 586— D.
Several Offences.] — By section 1, sub-
section 1 of the Motor Car Act, 1903, if any
person drives a motor car on a public highway
" recklessly or negligently, or at a speed or in
a manner which is dangerous to the public "
he is guilty of an offence : — Held (following
Rex V. Wells, 68 J. P. 392), that driving
recklessly, driving at a speed dangerous to the
public, and driving in a manner dangerous to
the public were separate offences. Rex v.
Cavayi Justices, [1914] 2 Ir. E. 150— K.B. D.
Suspension of Licence of Driver — Date from
which Suspension Runs.] — The appellant
having pleaded guilty on April 8, 1909, to the
charge of having exceeded the speed limit fixed
by the Motor Car Act, 1903, he was fined and
his licence was ordered to be suspended for
three months. The appellant appealed to
quarter sessions and the appeal came on to be
heard on July 10, 1909, when, on objection
being taken that quarter sessions had no juris-
diction to hear the appeal inasmuch as the
appellant had pleaded guilty, the appeal was
struck out. On August 21, 1909, the appellant
was stopped when driving a motor car, and
thereupon he was charged and found guilty
of driving without a licence : — Held, that the
three months' suspension of the appellant's
licence dated from April 8, 1909, and that
the giving of the notice of appeal to quarter
sessions did not have the effect of deferring
the operation of the order of suspension of the
licence. Kidner v. Daniels, 102 L. T. 132;
74 J. P. 127 ; 8 L. G. E. 159 ; 22 Cox C.C. 276
— D.
Petroleum Spirit — Building in which Petro-
leum Spirit for the Purposes of Light Loco-
motives is Kept — "Storehouse."] — Where
petroleum spirit is kept in the tank of a motor
car which is placed for the night in a garage,
the garage is a " storehouse " within the
meaning of the Eegulations dated July 31,
1907, made under the provisions of section 5
of the Locomotives on Highways Act, 1896 —
that is, a " building ... in which petroleum
spirit for the purposes of light locomotives is
kept in pursuance of these Eegulations " : — So
held by Scrutton, J., and Bailhache, J.
(Eidley, J., dissentiente). Appleyard v.
Baugham, 83 L. J. K.B. 193; [1914] 1 K.B.
258; 110 L. T. 34; 77 J. P. 448; 11 L. G. E.
1220 ; 23 Cox C.C. 730 ; 30 T. L. E. 13— D.
d. Extraordinary Traffic.
i. WJiat is.
See also Vol. XV. 59, 1902.
Cost of Repairs.] — The defendant owned a
stone quarry abutting on the main road. From
June, 1912, to May, 1913, stone from the
quarry was carried along the road in trucks
drawn by a traction engine by the order of
the defendant. The plaintiff local authority
and others conveyed stone over the road in a
similar manner, the quantity conveyed by the
defendant being a little more than half the
total traffic over the road. The road was fully
adapted to traffic by traction engines and had
been so used for a number of years. The
output from the quarry had gradually increased
from 7,284 tons in 1909 to 17,378 tons in
1912. Lush, J., held that traffic led along a
road adapted to it, being such traffic as was
to be expected in the ordinary course, could
not be " extraordinary " within the meaning of
section 23 of the Highways and Locomotives
(Amendment) Act, 1878, as amended by the
Locomotives Act of 1898 : — Held, that the
traffic did not come within the expressions as
to extraordinary traffic used by Bowen, L.J.,
in Hill <£■ Co. v. Thomas (62 L. J. M.C. 161;
[1893] 2 Q.B. 333), and was not extraordinary.
Ledbury Rural Council v. Somerset, 84 L. J.
K.B. 1297; 113 L. T. 71; 79 J. P. 327;
13 L. G. E. 701 ; 59 S. J. 476 ; 31 T. L. E. 295
CA.
Judgment of Lush, J. (30 T. L. E. 534),
affirmed. lb.
Normal Increase of Traffic— Damage to
Road.] — Whether traffic on a road is or
is not " extraordinary traffic " within the
meaning of section 23 of the Highways and
Locomotives (Amendment) Act, 1878, is a
question of fact to be decided on the evidence
in the particular case. Barnsley British
Co-operative Society v. Worsborough Urban
Council, 85 L. J. K.B. 103; 60 S. J. 25:
32 T. L. E. 41— H.L. (E.)
Traffic due to the normal increase of traffic
in consequence of the development of the
district is not " extraordinary traffic " within
the meaning of the section, and the continued
user of a road for the purpose complained of
prior to the date of the complaint may make
the traffic complained of ordinary traffic. But
if traffic on a particular road is ordinary traffic
on that road, and in consequence of some
1751
WAY.
1752
obstruction or alteration in that road the traffic
is diverted to another road, it does not follow
that it will still be ordinary traffic on the
road to which it has been so diverted. lb.
Judgment of the Court of Appeal (12 L. G. E.
1021; 78 J. P. 425) affirmed. 7b.
Haulage of Gravel.] — Prior to 1909 gravel
from an old gravel pit had been carted in farm
carts, holding from one and a half to two
tons each, in sufficient quantity to supply the
immediate wants of a district in which gravel
hauling was not a recognised industry. The
defendants subsequently became proprietors of
the gravel pit and set up business as traders
in gravel, and in the eight months between
August 1, 1910, and March 31. 1911, hauled,
by means of two traction engines, to each of
which two or three trucks were attached, a
weight of 21,950 tons, including the weight of
the engines and trucks going and returning,
over six and a half miles of a main road repair-
able by the county council, between the gravel
pit and the county town. The comparable
highways of the district carried traffic con-
sisting of — first, ordinary agricultural traffic;
secondly, light carts and carriages of residents
in a thinly populated district, but within a few
miles from a county town ; thirdly, some motor
car traffic; and fourthly, occasional threshing
and steam ploughing machines, &c. This
traffic, however, fell very much short of the
traffic conducted by the defendants, both in
volume and weight, and was not equal to half
the strain on the road caused by the defen-
dants' traffic : — Held, in an action by the
county council against the defendants to
recover extraordinary expenses incurred in re-
pairing the main road in question, that as the
traffic conducted by the defendants was such
as substantially to alter and increase the
burden imposed by ordinary traffic on the road,
and cause damage and expense beyond what
was common, it was extraordinary traffic, and
the county council were entitled to recover
extraordinary expenses incurred; but that,
since the road -would have carried ordinary
traffic with little, if any, damage, a small
allowance must be made for damage that
would have been done to the road by so much
traffic as was ordinary. Camhridgesliire County
Council V. Pepper, 10 L. G. E. 759 ; 76 J. P.
393— Bray, J.
ii. Parties Liable.
See also Vol. XV. 62, 1902.
Person "by or in consequence of whose
order" Traffic was Conducted — Liability of
Contractor Supplying Bricks.] — S., a building
owner, bought bricks for the erection of a house
from L., a brickmaker, and insisted as a term
of the contract that they should be delivered
in trucks drawn by traction engines. L.
accepted the order to deliver the bricks at the
site by that mode of conveyance and contracted
with E. to supply the engines and trucks, and
E. selected the route to be taken from the
brickfield to the site of the house. This traffic
damaged part of the road over which it was
conducted, and the local authority sued L. for
damages suffered by reason of extraordinary
traffic or excessive weight : — Held, that L.
was liable in damages as the person "by or
in consequence of whose order " the traffic
was conducted. Windlesham Urban Council
V. Seward, 77 J. P. 161; 11 L. G. E. 324
— D.
iii. Recovery of Expenses.
See also Vol. XV. 64. 1904.
"Average expense of repairing highways in
the neighbourhood."] — In order that an autho-
rity, which is liable to repair a highway, may
recover, under section 23 of the Highways
and Locomotives (Amendment) Act, 1878, as
amended by section 12 of the Locomotives Act.
1898, from the person by or in consequence of
whose order excessive weight or extraordinary
traffic has been conducted along the highway,
the amount of the expenses incurred by the
authority in the repair of the highway by
reason of the damage caused by the excessive
weight or the extraordinary traffic, the autho-
rity must shew that the expenses incurred by
them, by reason of such damage, are " extra-
ordinary " expenses ; and in order to determine
what is " extraordinary " regard must be had
not to the average expense of repairing the
particular road which has been damaged, but
to the average expense of repairing highways
in the neighbourhood. Billericay Rural Coun-
cil V. Poplar Guardians, 80 L. J. K.B. 1241;
[1911] 2 K.B. 801; 105 L. T. 476; 75 J. P.
497; 9 L. G. E. 796; 55 S. J. 647— C.A.
In an action to recover, under section 23 of
the Highways and Locomotives (Amendment)
Act, 1878, extraordiniry expenses incurred by
an authority, in respect of the repair of a
highway, by reason of damage caused by
excessive weight or extraordinary traffic, in
which action the authority alleges a certain
sum to be an average expense of repairing
highways in the neighbourhood, a defendant is
entitled to an order for particulars not merely
of the average expense of repairing the par-
ticular highway which has been damaged, but
of the average expense of repairing highways
in the neighbourhood which are comparable
with the particular highway. Billericay Rural
Council V. Poplar Guardians (80 L. J.
K.B. 1241; [1911] 2 K.B. 801) explained.
Colchester Corporation v. Gepp (No. 1).
81 L. J. K.B. 356; [1912] 1 K.B. 477;
106 L. T. 54; 76 J. P. 97; 10 L. G. E. 109;
56 S. J. 160— C.A.
In an action by the plaintiff corporation
against the visiting committee of a county
lunatic asylum to recover extraordinary ex-
pense caused by extraordinary traffic, — Held,
that the plaintiffs were not estopped from
recovering by reason of the fact that some
members on the visiting committee were the
plaintiffs' own representatives, or by reason of
the fact that the site on which the asylum was
built had been conveyed to the committee by
the plaintiffs. Held^ further, that the com-
mittee were liable as the persons in consequence
of whose order the work was done. Colchester
Corporation v. Gepp (No. 2), 76 J. P. 337;
10 L. G. E. 930— Channell, J.
Observations by Channell, J., as to the
deductions to be made in arriving at the extra-
1753
WAY.
1754
ordinary expenses for which the defendants
were liable. lb.
In an action by a highway authority to
recover, under section 23 of the Highways
and Locomotives (Amendment) Act, 1878, as
amended by section 12 of the Locomotives Act,
1898, extraordinary expenses incurred in re-
pairing a highway by reason of extraordinary
traffic conducted thereon by order of the de-
fendants,— Held, that the defendants were
entitled to an order for particulars of the
average expense of repairing similar highways
in the neighbourhood during the past five
years, stating the cost of labour, the establish-
ment charges, and the nature and amount
and cost of materials ; but that they were not
entitled to an order for particulars of the
average expense of repairing the highway in
question during the past five years, as these
latter particulars seemed to be particulars of
matters of defence rather than of the plain-
tiffs' claim. Morpeth Rural Council v.
Bullocks Hall Colliery Co., 82 L. J. K.B. 547;
[1913] 2 K.B. 7; 108 L. T. 479; 77 J. P. 188;
11 L. G. E. 475; 57 S. J. 373; 29 T. L. E.
297— C.A.
SuFYcyor's Certificate.]— In issuing his certi-
ficate pursuant to section 23 of the Highways
and Locomotives (Amendment) Act, 1878, as
to the sum due in respect of extraordinary
expenses, the surveyor need not certify the
precise parts of the particular highway where
the damage was done. Ledbury Rural Council
V. Colwall Park Quarries Co., 108 L. T. 1002;
77 J. P. 198; 11 L. G. R. 841— Scrutton, J.
A highway having been damaged by reason
of extraordinary traffic carried thereon by
the defendants, — Held, that the defendants
were liable for the excess of the amount
actually spent in repairing the damage done
to the section of the road actually used by the
defendants over the amount which would have
been spent in repairing the damage to the
same section by the other traffic which actually
used it during the period complained of , taking
all the circumstances into account. lb.
In an action to recover the expense of
repairing damage done to a road by extra-
ordinary traffic, it is not essential that the
surveyor's certificate should bear to have been
framed, or should in fact have been framed,
with regard to the average expense of repair-
ing highways in the neighbourhood ; but it is
the duty of the road authority, before bringing
the action, to have regard to such average
expense. Highland District Committee of
Perth County Council v. Rattray, [1913] S. C.
794— Ct. of Sess.
Per Lord Salvesen : A road authority is not
barred from recovering damage done to a road
by extraordinary traffic merely because the
road is of less than the width prescribed by
statute. 76.
e. Other Offences on.
See also Vol. XV. G5, 1910.
Furious Driving — Person in Charge of
Yehicle Asleep.] — The appellant was in sole
charge of a horse and trap. While he was
asleep the horse bolted and ran at a furious
pace through a village. A policeman who was
in the road might have been endangered as
to life or limb : — Held, that the appellant was
guilty of an offence under section 78 of the
Highwav Act, 1835. Chatterton v. Parker,
111 L. t. 380 ; 78 J. P. 339 ; 12 L. G. R. 1205 ;
24 Cox C.C. 312— D.
3. Rep.^ir of.
a. Obligation to Repair.
See also Vol. XV. 83, 1912.
Bridge over Canal — Statutory Obligation on
Canal Company to Repair Bridge — Private Act
— Repairs to Roadway on Bridge done by
Local Authority — Action by Local Authority
to Recover Expenses from Canal Company.]
— Where under the provisions of a private Act
a railway company, as the proprietors of a
canal, are liable to repair a bridge which
carries a highway across their canal, and the
highway authority of the district have ex-
pended a sum of money in repairing the
roadway on the bridge, the highway authority
cannot maintain an action against the railway
company to recover the sum so expended.
Macclesfield Corporation v. Great Cejitral
Railway, 80 L. J. K.B. 884; [1911] 2 K.B.
528; 104 L. T. 728; 75 J. P. 369; 9 L. G. R.
682— C.A.
Highviray Repairable Ratione Tenurae —
Powrer of Local Authority to take over Liability
— " Take on themselves the repair."] — Under
section 148 of the Public Health Act, 1875,
which provides that an urban authority may,
by agreement with a person liable to repair
a road, " take on themselves the maintenance
repair cleansing or watering " of the road —
which provision is, by section 25 of the Local
Government Act, 1894, made to apply to a
rural district council — a rural district council
may agree with a person who is liable to
repair a road ratione tenura to " for ever
take upon themselves the liability " for the
maintenance and repair of the road, and
the effect of the agreement will be to effectu-
ally free and for ever discharge the land
which is subject to the liability, and the
owner and occupier, from the liability.
Dictum of Cockburn, C.J., in Nutter v.
Accrirtgton Local Board of Health (47 L. J.
Q.B. 521, 524; 4 Q.B. D. 375, 379), explained
and distinguished. Stamford and Warrington
(Earl), In re; Payne v. Grey (No. 2), 80 L. J.
Ch. 361; [1911] 1 Ch. 648: 105 L. T. 12;
75 J. P. 346; 9 L. G. R. 719; 55 S. J. 483;
27 T. L. R. 356— Warrington, J.
"Incumbrance" — Settled Land Act.] —
Whether a liability to repair ratione tenures
is an " incumbrance " within the meaning of
section 21, sub-section (ii.) of the Settled
Land Act, 1882. qucere. lb.
Public Roads — Evidence.] — Where there is
no evidence of public user or of any present-
ment having ever been made in respect of a
road, and where there is clear evidence of non-
user in modern times, such road is not a
public road the expense of repairing and
1755
WAY.
1756
maintaining which a county council can law-
fully provide for and charge upon the rates
as a public work. Rex v. Newell, [1911]
2 Ir. K. 573— K.B. D.
The onus of shewing statutable authority
for payments made by a public body lies on
the body making such payments. lb.
b. Liability for Damages.
See also Vol XV. 107, 1919.
Making-up and Lighting Street — Alteration
of Normal Condition of Road — Omission of
Proper Precaution — Duty to Protect Public
from Risk — Misfeasance or Nonfeasance.] — A
highway authority, in making up a road,
had, in doing so, omitted a precaution which,
if taken, would have made the work done
safe instead of dangerous : — Held, that they
were guilty of misfeasance and not non-
feasance, because in carrying out the work,
which was that of altering the normal con-
dition of the road, the highway authority
had been guilty of a breach of their duty to
exercise their powers reasonably and to take
care that the public was not exposed to
unnecessary danger by the carrying out of
the work of making up the road. McClelland
V. Manchester Corporation. 81 L. J. K.B. 98;
[1912] 1 K.B. 118 ; 105 L. T. 707 ; 76 J. P. 21 ;
9 L. G. R. 1209; 28 T. L. R. 21— Lush, J.
Portion Left Open for Use of Public to be
Kept Reasonably Safe — Nonfeasance while
Executing Repairs.] — A county council who
were under an obligation to maintain and
repair the public roads within their juris-
diction, were engaged in repairing a portion
of one of such roads, and for this purpose
employed a steam roller to roll down and level-
in the new metal. These repairing operations
were confined to a portion half the width of
the road, the other half being left open for
public traffic. A man driving in a donkey cart
along the half so left open, proceeding in the
same direction as the engine, and overtaking
it, was jerked from his seat by the wheel of
his cart colliding w-ith a large stone lying in
the water table close to the grass margin on
the side of the road opposite to the engine.
The jerk threw the man into the road and
iinder the wheels of the engine, where he
received injuries from which he died. The
stone (which had probably fallen off the fence
bounding the road) had, to the knowledge of
the council's W'Orkmen, been in that position
for two or three days previous to the accident.
In an action under Lord Campbell's Act, the
jury found that the defendants were negligent
in omitting to remove the stone, and that
there was no contributory negligence on the
part of the deceased : — Held (Kenny, J., dis-
senting), that the act of interfering with the
road imposed an obligation on the county
council to take care that the portion of the
road left open for public use was reasonably
fit and safe for such purpose, and that the
council were liable in damages. Ryan v.
Tipperary County Council. [1912] 2 Ir. R. 392
—K.B. i).
Failure to Fill up Hole in Highway — Non-
feasance— No Obligation on Owner of Adjoin-
ing Land to Support Highway.] — In 1910 the
female plaintiff brought an action against the
defendants to recover damages for personal
injuries sustained by her through falling into
a hole in a public highway which was vested
in the defendants. The highway in question,
a footpath, adjoined a ballast yard, and at the
time of the accident was composed of hoggin.
At a point at which the footpath reached the
entrance to the ballast yard it sloped to a depth
of nine inches and then fell another three
inches until it reached the level of the yard.
The footpath had been taken over by the de-
fendants in 1900, and in 1904 they had repaired
it in such a way that any depression then
existing would have been filled up. In 1907
the defendants purchased the ballast yard, and
at that time there was in existence upon the
footpath a hole similar in character to that
which existed at the time of the accident.
From the evidence given it appeared that the
depression was due to the hoggin slipping
dowm the slope into the yard, and that this
process was assisted by the passing of persons
down into the yard : — Held, upon the above
facts, that there was no evidence which ren-
dered the defendants liable either as the high-
way authority or as the owners of the ballast
yard. In the former capacity they were not
liable because they had been guilty of no mis-
feasance, and in the latter because they were
under no obligation as owners of the yard to
provide an artificial support to the footpath
which would prevent it from slipping away.
Short V. Hammersmith Corporation, 104 L. T.
70 ; 75 J. P. 82 ; 9 L. G. R. 204— D.
Premises Adjoining Highway — Authority
Creating Nuisance thereon — Non-liability of
Frontager.] — - On premises adjoining a high-
way, which were the property of and occupied
by the defendant, there was a coal shoot
formed by an opening at the bottom of the
wall of the house, abutting on the pavement,
which was part of the highway. In 1901 the
local highway authority, acting under the pro-
visions of the Private Street Works Act, 1892,
raised the level of the pavement and, in order
to preserve access to the coal shoot, left an
opening in the pavement. This condition of
the pavement remained until October, 1914,
when the plaintiff, in passing along the pave-
ment, put her foot into the hole, and suffered
personal injuries, for which she brought her
action against the defendant : — Held, that
the action failed, inasmuch as, where a nui-
sance is created by a highway authority on
a highway under their control, the owner or
occupier of the land adjoining the highway is
not liable for an accident caused by the nui-
sance. Robbins v. Jones (33 L. J. C.P. 1:
15 C. B. (N.s.) 221) followed. Barker v.
Herbert (80 L. J. K.B. 1329; [1911] 2 K.B.
633) discussed and distinguished. Horridge v.
Makinson, 84 L. J. K.B. 1294; 113 L. T.
498: 79 J. P. 484; 13 L. G. R. 868; 31
T. L. R. 389— D.
Semble (per Bailhache, J.), there was no
duty on the defendant to inspect the plans
prepared by the local authority in 1901 in con-
nection with the work of raising the level of
the pavement. 76.
1757
WAY
1758
"Grips" in Waste on Roadside Overgrown
with Grass — Accident to Person Using Road —
Liability of Highway Authority — Misfeasance
or Nonfeasance.] — On the grass waste adjoin-
ing a highway, over which ran a light rail-
way, a platform had been constructed for
the use of passengers. Prior to 1888 gullies
or " grips " were made in the waste for the
surface drainage of the road by the highway
authority, a county council. These grips
became overgrown with grass, and the plain-
tiff, in passing to the platform, not seeing one
of the grips, fell, and was injured : — Held,
that allowing the grips to be overgrown with
grass being a nonfeasance and not a mis-
feasance, an action would not lie against the
county council. Masters v. Hampshire County
Council, 84 L. J. K.B. 2194; 79 J. P. 493;
13 L. G. E. 879— D.
Widening Street — Notice to Postmaster-
General to Remove Pole in Street as Widened
— Negligence of Latter in Doing Work causing
Damage to Third Person — Liability of High-
way Authority.] — A highway authority were
engaged in widening a street by setting back
the kerb of the footpath. They gave notice,
not purporting to be under section 15 of the
Telegraph Act, 1863, to the Postmaster-General
to remove a telephone pole standing in the
road, and in doing so his workmen filled up
the hole negligently, whereby the plaintiff's
waggon was injured : — Held, that the high-
way authority were liable in damages on the
ground that by altering the character of the
highway they were making a new street, and
ought, before opening it to the public for
traffic, to have seen that it was reasonably
safe for the purpose. Thompson v. Bradford
Corporation, 84 L. J. K.B. 1440; [1915]
3 K.B. 13; 113 L. T. 506; 79 J. P. 364;
13 L. G. K. 884; 59 S. J. 495— D.
Held, also, that the Postmaster-General was
liable on the ground that he had undertaken
to do the work, although not compelled to do
so, and had done it negligently. lb.
B. BEIDGES.
See also Vol. XV. 178, 1924.
Trust for Repair of Bridge — Bridge Vested
in Public Body — Extent of Obligation to
Repair.] — Where a fund is devoted by a settlor
to the repair of a public bridge it remains
applicable for that purpose, notwithstanding
that the Legislature has cast the burden of
such repairs upon a public body. Att.-Gen.
V. Day (69 L. J. Ch. 8; [1900] 1 Ch. 31)
applied. A bridge, for the repair of which a
settlor devoted certain funds, crossed the
Severn. As the result of two private Acts
and by agreement between the Justices and
the Severn Commissioners a part of the
bridge was made to open so as to allow traffic
on the river to pass to and fro. By virtue of
the joint operation of these statutes and the
agreement, the Commissioners were bound to
keep in repair tlie opening portion of th.i
bridge : — Held, that, notwithstanding the
obligation cast upon tlie Severn Commis-
sioners, the funds left by the settlor were
applicable to the repair of the opening por-
tion of the bridge. HalVs Charity, In re.
10 L. G. R. 11; 76 J. P. 9 ; 28 T. L. R. 32
— Warrington, J.
Highway Carried Across Canal by Bridges
— Liability for Maintenance and Repair of
Bridges — Standard of Repair — Statutory
Liability.] — Where a statute authorises the
doing of a particular thing, and provides what
are to be the rights and obligations flowing
from such action, it is to be considered as a
code complete in itself, and no common law
principle can be invoked to vary or add to the
obligations imposed by the statute. Sharpness
Neiv Docks and Gloucester and Birtningham
Navigation Co. v. Att.-Gen., 84 L. J. K.B.
907 ; [1915] A.C. 654 ; 112 L. T. 826 ; 79 J. P.
305; 13 L. G. R. 563; 59 S. J. 381;
31 T. L. R. 254— H.L. (E.)
A company was empowered by statute to
make a canal, and the statute enacted that the
company should not make the canal across any
common highway until they should have made
bridges to carry the highway across the canal
"of such dimensions, and in such manner, as
the said Commissioners " — appointed under
the statute — " shall adjudge proper; . . . and
all such . . . bridges, ... to be made shall,
from time to time, be supported, maintained,
and kept in sufficient repair, by the said Com-
pany." The bridges were made to the satis-
faction of the commissioners as required by
the statute, but the traffic on the highways
had of late years become much heavier : —
Held, that the canal company was only bound
to keep the bridges in such a state of repair
as was adjudged proper by the commissioners
at the date when the bridges were first made,
and not to keep them in a condition to bear
heavier traffic. Hertfordshire County Council
V. Great Eastern Railway (78 L. J. K.B.
1076; [1909] 2 K.B. 403) distinguished. 76.
Decision of the Court of Appeal (83 L. J.
K.B. 1762; [1914] 3 K.B. 1) reversed. Ih.
Statutory Obligation on Canal Company
to Repair — Repair by Local Authority — Action
to Recover Expenses.] — See Macclesfield
Corporation v. Great Central Railway, ante,
col. 1754.
Railway Bridge — Local Act — Swing Rail-
way Bridge over Canal — Agreement between
Railway and Navigation Companies to Con-
vert into Fixed Bridge — Bridge Constructed
under Section beginning " For the protection
of the Navigation Company " — Benefit of the
Public — Action by Attorney-General.] — By a
Light Railway Order, confirmed under the
Light Railways Act, 1896, a railway company
was authorised to construct a swing bridge
over a canal, and it was so constructed.
Section 29 of the Order began : " For the pro-
tection of the Navigation Company the follow-
ing provisions shall have effect." Sub-
section 3 of this section provided for the con-
struction of the bridge as a swing bridge ;
sub-section 4 provided that the railway com-
pany should make provision free of charge
for opening the bridge for the passage of
vessels by day and night under a penalty.
There were also other sub-sections imposing
duties on the railway company with respect
to the bridge. Sub-section 16 provided that
1759
WAY.
1760
the railway company and the navigation com-
pany might agree '" for any variation or
alteration of works in this section provided
for or of the manner in which the same shall
be executed." The railway company and the
navigation company proposed to convert the
swing bridge into a fixed bridge. Upon action
by the Attorney-General, at the relation of an
owner of vessels using the canal, to restrain
the proposed conversion as being an impedi-
ment to the navigation : — Held, that the
heading to section 29 did not make that
section a mere contract between the companies
which they could vary as they pleased, as
sub-sections 3 and 4 and other sub-sections
were clearly for the benefit of the public ; and
that the Attorney-General could therefore sue
on behalf of the public ; that the proposed
conversion was prohibited by section 29, and
was not an alteration within sub-section 16.
and that the injunction must be granted.
Davis (f Sons, Lim. v. Taff Vale Railwaij
(64 L. J. Q.B. 488; [1895] A.C. 542) fol-
lowed. Att.-Gen. v. North-Eastern Railway,
84 L. J. Ch. 657; [1915] 1 Ch. 905; 113
L. T. 25; 79 J. P. 500; 13 L. G. E. 1130—
C.A.
Bridge over Railway — Liability of Railway
Company to Maintain — Heavy Motor TraflBc —
Standard of Maintenance.] — A railway bridge
was constructed under the powers of a statute
which empowered a railway company to make
a railway according to plans deposited. The
bridge was properly and substantially built in
accordance with the provisions of the statute.
Under section 46 of the Railways Clauses
Consolidation Act, 1845, there was an obliga-
tion on the company to "maintain" the
bridge : — Held, that the company was liable
to maintain the bridge in the same condition
as to strength in relation to traf&c as it was
at the date of its completion, but that it
was not liable to improve and strengthen the
bridge to make it sufficient to bear the ordinary
traffic of the district which might reason-
ably be expected to pass over it according to
the standard of the present day. Sharpness
New Docks v. Att.-Gen. (84 L. J. K.B.
907; [1915] A.C. 654) applied. Att.-Gen. v.
Great Northern Railway, 84 L. J. Ch. 793;
13 L. G. E. 998; 59 S. J. 578; 31 T. L. E.
501— C.A.
Decision of Warrington, J. (83 L. J. Ch.
763), reversed. lb.
C. FEEEIES.
See also Vol. XV. 194, 1928.
Ancient Ferry — New Ferry — Substantially
New Traffic Demanding New Facilities.] —
The plaintiffs, who were possessed of an
ancient ferry on the Thames, known as
Twickenham Ferry, sought an injunction to
restrain the defendants from carrying foot
passengers for hire across the Thames over,
upon, within, or near that ancient ferry : —
Held, that the plaintiffs were not entitled to
an injunction against the defendants, inas-
much as there had sprung up a substantially
new traffic different in character from that
served by the old ferry, and that the defen-
dants' ferry was started bona fide to meet a
genuine demand on the part of the public in
connection with that new traffic. Hammerton
V. DTjsart (Earl), 85 L. J. Ch. 33; 13 L. G. E.
1255 ; 59 S. J. 665 ; 31 T. L. E. 592— H.L. (E.)
Decision of the Court of Appeal (83 L. .J .
Ch. 530; [1914] 1 Ch. 822) reversed. lb.
Disturbance — Ferry from Yill to Yill —
Change of Circumstances — New TrafiBc] —
In an action claiming a declaration that the
plaintiffs were entitled to and possessed of
certain ferries, and an injunction restraining
the defendant from disturbing the ferries, —
Held (Lush, J., dissentiente), that on the
evidence the plaintiffs had an exclusive right
of ferry or a vill-to-vill ferry between the vill
of Great Yarmouth and the vill or vills of
Gorleston and Little Yarmouth, and that they
were entitled to an injunction restraining the
defendant from disturbing that right by carry-
ing passengers and their goods within the
limits of the vill-to-vill ferry. Held, further,
that, even assuming that the ferry established
was only a point-to-point ferry (as held by
Lush, J.), that (Lush, J., dissentiente) the
acts of the defendant constituted a disturbance
of it, as he had — it being a question of fact —
not established that he was serving a different
traffic from that for the accommodation of
which the right of ferry was granted, but
only an increase and development of that
traffic under altered circumstances. Newton
V. Cubitt, 31 L. J. C.P. 246; 12 C. B. (n.s.)
32), and Cowes Urban Council v. Southamp-
ton, Isle of Wight and South of England
Royal Mail Steam Packet Co. (74 L. J. K.B.
665; [1905] 2 K.B. 287) discussed. General
Estates Co. v. Beaver, 84 L. J. K.B. 21;
[1914] 3 K.B. 918; 111 L. T. 957; 79 J. P.
41 ; 12 L. G. E. 1146 ; 30 T. L. E. 634— C.A.
There is no rule of law preventing the exist-
ence of a right to a vill-to-vill ferry between
one vill and two vills. lb.
Judgment of Pickford, J. (82 L. J. K.B.
585; [1913] 2 K.B. 433), affirmed. lb.
Statutory Powers — Harbour and Ferry
Trustees — Ultra Yires — Interdict — Ratepayers
of Harbour — Title to Sue.] — By the Dundee
Harbour and Tay Ferries Consolidation Act,
1911, the appellants were constituted a body
of trustees, to be elected in part by the ship-
owners and harbour ratepayers of Dundee,
and the Act vested in them the harbour of
Dundee, and the exclusive right of working
and using ferries within limits defined by
the Act. They made a practice of letting out
steam vessels which were not actually required
for the purposes of the ferries, but were kept
in reserve in case of an accident, for excur-
sions on the river Tay beyond the limits of
the harbours and ferries, as defined by the
statute. The profits of such excursion traffic
were brought into their general account : —
Held, that the appellants could be restrained
by interdict from so doing, such excursion
traffic not being within their statutory powers,
or reasonably incidental to the purposes
thereof, and that the respondents, who were
shipowners and harbour ratepayers in Dundee,
had a good title to maintain proceedings in
respect of such ultra vires actings. Dundee
Harbour Trustees v. Nicol, 84 L. J. P.C. 74;
1761
WAY— WILL.
1762
[1915] A.C. 550; 112 L. T. 697; 31 T. L. R.
118— H.L. (Sc.)
Decision of the Court of Session in
Scotland ([1914] S. C. 374) affirmed. lb.
WEIGHTS AND
MEASURES.
See also Vol. XV. 199, 1929.
Implied Representation as to Weight.] — If
a specific weight of goods is demanded by a
customer and he receives a quantity as in
implement of his order, there is a representa-
tion by the seller that the weight demanded
has been supplied, and it is not per se suffi-
cient to displace such representation that on
the wrapper in which the article is supplied
there are printed words to the effect that the
article is not sold by weight. Galbraith's
Stores, Lim. v. M'Intyre, [1912] S. C. (J.)
66— Ct. of Just.
See also Coals.
WILD BIRDS.
See also Vol. XV. 210, 1935.
Possession — Recently Taken.] — The ques-
tion whether wild birds were recently taken,
within the meaning of section 3 of the Wild
Birds Protection Act, 1880, is a question of
fact for the magistrate. Rex v. Hopkins ;
Lovejoy, Ex parte, 104 L. T. 917; 75 J. P.
340; 22 Cox C.C. 465— D.
WILL.
I. TESTAMENTAEY CAPACITY, 1763.
II. TESTAMENTARY INSTRUMENTS,
WHAT ENTITLED TO PROBATE, &c.
a. By Soldiers and Sailors, 1764.
b. Where there are several instruments,
1765.
c. Joint and Mutual Wills, 1765.
d. When Lost, 1766.
III. EXECUTION AND ATTESTATION,
1766.
IV. REVOCATION, 1766.
V. PROBATE AND LETTERS OF
ADMINISTRATION.
a. To whom granted.
1. Executors, 1767.
2. Administrators, 1768.
3. On Presumption of Death, 1770.
4. Next-of-Kin, 1770.
5. Cum Testamento Annexo, 1770.
6. Creditors, 1771.
7. Public Trustee, 1772.
8. Official Receiver and Trustee in
Bankruptcy, 1772.
9. Attorneys, 1773.
10. On Renunciation of Parties, 1773.
11. Limited Grant, 1773.
b. Administration Bond, 1774.
c. Revocation and Alteration of Grant, 1775.
d. Practice, 1775.
VI. CONSTRUCTION.
a. Admissibility of Extrinsic Evidence, 1776.
b. Mistake or Misdescription, 1777.
c. Changing Words, 1777.
d. Particular Words, 1778.
e. Devisees and Legatees.
1. Gifts Generally, 1779.
2. Gifts to What Persons.
a. Wife, 1780.
b. Children, 1780.
c. Issue, 1782.
d. Cousins, 1784.
e. Nephews and Nieces, 1784.
f. Heirs, 1785.
g. Servants, 1786.
h. Persons Filling a Particular
Description, 1787.
3. Gifts to a Class, 1789.
4. Gifts to Survivors, 1791.
5. Distribution Per Stirpes or Per
Capita, 1792.
6. Death without Having or Leaving
Issue, 1792.
7. Settled Shares and Substitutional
Alternative Gifts, 1793.
8. Gifts Over, 1796.
9. Acceleration of Inteeests, 1796.
f. Bequests and Devisees.
1. Words of.
a. What Property will Pass by
Particular Words or Descriptions.
i. Particular Words, 1796.
ii. General Devise of Real Estate,
1804.
iii. Gift of Residue, 1804.
b. What Words will Pass Particular
Property, 1805.
2. What Interest Passes.
a. Estates in Fee-simple, or in Tail, or
for Life,
i. What Words Pass Fee-simple, 1805.
ii. Limitations Creating an Estate
Tail, 1807.
iii. Life Estates, 1808.
b. Vested, Contingent, and Future
Interests, 1809.
c. Absolute Interests in Personal Estate,
1812.
d. Gifts to Benefit in a Particular
Manner, 1813.
e. Absolute Gifts when Cut Down, 1814.
f. Successive and Concurrent Interests
— Joint Tenancy and Tenancy in
Common, 1815.
3. Mortgages, 1816.
4. Marshalling, 1818.
56
1763
WILL.
1764
5. Trusts, 1819.
6. Gifts by Eeferenxe and Implication,
1820.
7. Legacies, whether General, Specific
OR Demonstrative, 1820.
8. Conditional Legacy, 1821.
9. Cumulative Legacies, 1821.
10. Charitable Legacies — See Charity.
11. Annuities — See Annuity.
12. Legacy to Debtor, 1822.
13. Legacy to Creditor; Satisfaction,
1823.
14. Ademption, 1823.
15. Lapse, 1825.
16. Disclaimer of Legacy, 1826.
17. Charge of Legacies, 1827.
18. Abatement; Priorities, 1828.
19. Interest and Intermediate Income,
1830.
20. Advances — Hotchpot, 1833.
I. TESTAMENTAEY CAPACITY.
See also Vol. XV. 216, 1039.
Capacity — No Verbal or Written Instruc-
tions — Assent to Questions by Nods and
Pressure of Hands — Costs.] — A testatrix, who
was incapable of speaking or writing owing to
an apoplectic stroke, only assented by nods of
her head and several pressures of her hand in
answer to questions put to her by the person
drawing her will. She made a mark with a
pen in lieu of a signature : — Held, that if the
jury believed the document was in accordance
with the wishes of the testatrix they could
find in favour of it. Further held, while the
opposing parties were entitled to have the will
proved in solemn form, nevertheless they were
not justified in fully contesting and must bear
their own costs of the action. Holtam, In the
estate of, 108 L. T. 732— Bargrave Deane, J.
Lunatic so Found — Lucid Intervals — Power
to make a Will.] — The deceased was found a
lunatic by inquisition in 1869. She suffered
from delusions under which she became violent
and even dangerous. Her disorder was an
obsessional insanity, but her obsessions were
recognised by herself as morbid, and did not
prevent her from taking an intelligent interest
in general topics. She kept up a correspon-
dence with her relatives and friends, and in
other respects was a shrewd, clever woman,
and her memory was excellent. In 1905 a
will was drawn up on the instructions of the
deceased, and executed by her and attested by
three doctors who were prepared to certify
that she was perfectly intelligent and capable
at the time. The Court granted probate of
the will. Walker, In the estate of ; Watson v.
Treasury Solicitor, 28 T. L. K. 466 — Bargrave
Deane, J.
Undue Influence.] — A strong prima facie
case in favour of a will is not displaced by
mere proof of serious illness or antecedent
intemperance, or by evidence that there were
motive and opportunity for the defendants to
exercise undue influence and that some of
them benefited by the will to the exclusion of
other relatives of equal or nearer degree.
There must be clear evidence that the undue
influence was in fact exercised, or that the
testator's illness so affected his mental faculties
as to make them unequal to the task of dis-
posing of his property. Bur Singh v. Uttam
Singh, L. E. 38 Ind. App. 13— P. C.
Evidence of Statement by Deceased
Person who was Alleged to have Exercised
Undue Influence on Testator — Admissibility.]
— In a probate suit the defendant alleged thaU
the will propounded by the executors had been
obtained by the undue influence of one C, who
died a few days before the execution of the
will. C.'s estate was not represented in the
suit : — Held, that evidence of a statement by
C, not in the presence of the testator, was
admissible so far as it went to the plea of
undue influence. Radford v. Risdon, 56 S. J.
416; 28 T. L. E. 342— Evans, P.
II. TESTAMENTAEY INSTEUMENTS,
WHAT ENTITLED TO PEOBATE, &c.
A. By Soldiers and Sailors.
See also Vol. XV. 260, 1944.
Will of Soldier in " actual military service "
— Time of Determination of Service — Gift to
Attesting Witness — Validity.] — As "actual
military service " within the meaning of
section 11 of the Wills Act, 1837, commences
at the time of mobilisation, so that service
does not cease until the full conclusion of the
operations. Where, therefore, an officer in the
Indian Army, who had taken part in military
operations, made a will while remaining in
the district with a force as escort to the party
engaged in the delimitation of the frontier,
— Held, that he was " in actual military
service " within the meaning of section 11,
although the operations were regarded by the
India Office for the purpose of the grant of
the war medal as having terminated two
months previously. Section 15 of the Wills
Act, 1837, applies only to wills made under
the provisions of the Act itself, and does not
extend to the wills of soldiers and sailors,
which, by virtue of section 11, require no
attestation. If, therefore, a soldier's or
sailor's will is in fact attested, a gift of per-
sonal estate to an attesting witness is valid.
Emanuel v. Constable {5 L. J. (o.s.) Ch. 191;
3 Euss. 436) applied. Limond, In re; Limond
V. Cunliffe, 84 L. J. Ch. 833; [1915] 2 Ch.
240; 59 S. J. 613— Sargant, J.
Holograph Document — Whether a Final
Testamentary Disposition.] — Where the execu-
tors of an officerj who had died from wounds
received while in command of an anti-aircraft
section, propounded a will and codicil together
with a holograph document, which was found
in the testator's writing-block after his deaAh,
and which, it was submitted, was a " soldier's
will," the Court pronounced for the will and
codicil and against the holograph document,
on the ground that the latter consisted of two
alternative drafts and was not intended to be
a final testamentary disposition. Broughton-
1765
WILL.
1766
Knight v. Wilson, 32 T. L. R. 146— Bargrave
Deane, J.
" Mariner or seaman being at sea " — Female
Typist Employed on Liner — Document Writ-
ten on Shore in Contemplation of Sailing.] —
The deceased, who had been for several years
in the employment of a steamship company as
a typist, was in the habit of travelling as a
typist on the vessels of the company (large
ocean liners) sailing between Liverpool and
New York. She spent the periods between
voyages working in the company's offices in
Liverpool. Her testamentary dispositions were
contained in three letters. None of these docu-
ments was signed or attested as required by
the Wills Act, but all, though written from
the deceased's lodgings in Liverpool, were
written in contemplation of sailing. The
deceased was afterwards lost in the sinking of
one of the ships of the company : — Held, that
every person employed in any branch of the
Royal Navy or merchant service, from the
highest to the lowest, is included when at sea,
in the exceptions contained in section 11 of
the Wills Act ; that consequently the deceased
came within the meaning of the term " mariner
or seaman " ; and that this term is not con-
fined to the male sex. Held also, that the
deceased was " at sea " within the meaning of
the section at the time of making her will.
Hale, In the goods of, [1915] 2 Ir. R. 362—
Madden, J.
B. Where thebe are Several Instruments.
See also Vol. XV. 261, 1945.
Codicil Referring to Earlier Instead of Later
Will — ReviYal.] — A testator made a will, and
afterwards made another which contained the
usual clause revoking all prior wills or testa-
mentary dispositions. Subsequently he duly
executed a codicil, which by mistake was
endorsed on and referred to the earlier will : —
Held, that all three documents must be ad-
mitted to probate. Stedham, In the goods of
(50 L. J. P. 75; 6 P. D. 20.5), followed'.
Carleton, In the goods of, [1915] 2 Ir. R. 9
— Madden, J.
c. Joint and Mutual Wills.
See also Vol. XV. 296, 1948.
" Mutual wills " — Revocability — Joint
Tenancy — Severance — Last Will — Remedies
for Breach of Agreement not to Revoke Will.]
— An agreement between joint tenants to make
wills and the execution of wills by such
joint tenants, bequeathing property the sub-
ject of the joint tenancy on identical terms
subject to the life interest of the survivor,
sever the joint tenancy and create a tenancy
in common. Wilford's Estate, In re; Taylor
V. Taylor (48 L. J. Ch. 243; 11 Ch. D. 267)
followed. Walker v. Gaskill, 83 L. J. P. 152 :
[1914] P. 192; 111 L. T. 941; 69 S. J. 45;
30 T. L. R. 637— Evans, P.
Wills of this description sometimes called
" mutual wills," or more accurately joint wills,
may form the subject of an agreement between
testators that they should be irrevocable, but
are not recognised as such by the Court of
Probate, the function of which is to decide
what is the last will of a testator, and there
is no rule of law that any will is irrevocable.
Such a rule would contravene the essential
principle that a will is revocable either by
operation of law, as on the marriage of the
testator, or by his act. The liberty of making
testaments cannot be renounced by any agree-
ment. Although an agreement not to revoke
a will may give rise to a claim for damages
as on contract, or may be enforced by a
declaration of trust, the Probate Division is
not the proper forum in which to seek relief
for its breach. Hobson v. Blackburn
(1 Addams. Ecc. 274) followed. Raine, In the
goods of (1 Sw. & Tr. 144), commented on.
lb.
D. When Lost.
See also Vol. XV. 311, 1951.
Circumstances in which the Court will grant
probate of the contents of a lost will. Spain,
In re, 31 T. L. R. 435— Horridge , J.
Cum Testamento Annexo.] — See M' Quirk,
In the goods of, post, col. 1770.
III. EXECUTION AND ATTESTATION.
See also Vol. XV. 332, 1956.
No Attestation Clause — Absence of Evidence
— Surrounding Circumstances — Presumption of
Execution Defeated.] — In the absence of an
attestation clause, and of conclusive evidence
as to execution of a testamentary paper, the
Court is entitled to have regard to the sur-
rounding circumstances in connection with or
dehors the document, the doctrine " omnia
presumuntur rite esse acta " notwithstanding.
Peverett, In the goods of (71 L. J. P. 114;
[1902] P. 205), distinguished. Strong v.
Hadden, 84 L. J. P. 188; [1915] P. 211;
112 L. T. 997; 31 T. L. R. 256— Evans, P.
Affidavit.] — An affidavit prepared without
any reference to the person who 15 to swear it
loses much of the weight and importance it
would otherwise have. Where the surviving
witness to a will had sixteen years before
sworn an affidavit of due execution of the will,
prepared under such circumstances, the Court
nevertheless condemned the will upon his evi-
dence that the will had not been in fact duly
executed, and that he had sworn the affidavit
on the former occasion without sufficiently
adverting to its contents. Goodisson v.
Goodisson, [1913] 1 Ir. R. 31— M.R.
IV. REVOCATION.
See also Vol. XV. 366, 1961.
Subsequent Will — Invalid Disposition —
Inconsistency.] — An alternative inconsistent
disposition which is not valid or effectual in
itself does not revoke an earlier disposition
of the same property. In 1889 a testator
made a will disposing of his property and
giving his widow authority in a certain event
to adopt a son. In 1890 he made a second
1767
WILL.
1768
■will, which made an invalid disposition of
his property and did not expressly revoke the
previous will and did not refer to the clause
giving his widow a contingent power of adop-
tion. Shortly afterwards he died : — Held,
that the second will did not impliedly revoke
either the disposition in the first will or the
power of adoption conferred by it. Venca-
tanarayana Pillay v. Subammal, 32 T. L. B.
118— P.C.
RcYOcation on False Assumption of Fact.] —
The revocation of a bequest grounded on an
assumption of fact which is false, takes effect,
unless as a matter of construction the truth
of the fact is the condition of the revocation.
Paris, In re; Goddard v. Overend, [1911]
1 Ir. E. 469— M.R.
Bequest — Codicil.] — By her will made in
187-5 the testatrix bequeathed her residuary
estate upon trust for her sister for life and
after the death of her sister upon trust for the
defendant society absolutely. In 1901 the
testatrix made a codicil in the following
terms : " This is a codicil to my last will and
testament. I bequeath to my executors as
souvenirs my two rings. . . . And I hereby
appoint as my residuary legatee " the plain-
tiff, " bequeathing to her all that is not
specified in my will : — Held, that the gift to
the defendant society was revoked by the
codicil. Pereira, In re; Worsley v. Society for
Propagation of the Gospel, 56 S. J. 614;
28 T. L. E. 47'9— Joyce, J.
Gift of Residue in Will— Gift in Codicil of
Residue not Bequeathed by Will — Inconsistent
Gifts.] — A testator by his will gave the residue
of his estate to certain charities. By a codicil
he made the following bequest : " The residue
of my estate not bequeathed by the above will
I give and bequeath to M. L. absolutely " : —
Held, that the codicil did not revoke the gift
of the residue given by the will, but only gave
to M. L. such portion (if any) of the residue
as might ultimately turn out not to have been
effectually disposed of by the will. Stoodley,
In re; Hooson v. Stoodley, 84 L. J. Ch. 822;
[1915] 2 Ch. 295 ; 59 S. J. 681— Eve, J.
V. PEOBATE AND LETTEES OF
ADMINISTEATION.
A. To WHOM Granted.
1. Executors.
See also Vol. XV. 467, 1970.
Two Wills — Property in England — Property
Abroad — Property Governed by Second Will
Brought to England.] — The Court granted
probate of a will disposing of property abroad
where some of the property that passed under
that will was brought to England. Stubbings
V. Clunies-Ross, 27 T. L. E. 361— Evans, J.
Executor also Next-of-Kin — Action by
Executor to Revoke Probate — Knowledge of
Executor at Time of Probate— Estoppel —
Laches.] — An executor who is also next-of-kin
of the testator is not, after taking probate of
his will, under the same disability with regard
to contesting its validity as a bare executor,
and the fact of his having taken probate does
not operate as an estoppel. Williams v.
Evans, 80 L. J. P. 115; [1911] P. 175;
105 L. T. 79; 27 T. L. E. 506— Horridge, J.
Laches is a question of fact, and a reason-
able delay on the part of an executor, who is
also next-of-kin, in commencing proceedings to
revoke the probate, especially if no assets have
been distributed and his action has not led
other persons to alter their position, does not
necessarily constitute such negligence on his
part as will justify a finding of laches against
him or render it inequitable that he should be
allowed to contest the will, although he may
have known of the grounds for opposition at
the time of taking probate. lb.
Executor in Prison — Passing over.] —
See Draicmers Estate, In re, infra, Adminis-
trators.
2. Administrators.
See also Vol. XV. 479, 1972.
Criminal Conviction of Executor — Refusal
to Renounce — Grant — Passing over.] — Where
an executor, though "willing," is not "com-
petent," to take probate, by reason of his
being in prison, the Court under the provisions
of section 73 of the Court of Probate Act, 1857,
will pass over the executor on that ground and
make a grant under the same section to such
person as it may think fit. Drawmer's Estate,
In re, 108 L. T. 732; 57 S. J. 534— Bargrave
Deane, J.
Commorientes — Special Form of Oath as
to Death.] — Application to vary the usual form
of oath of death in an ordinary case of com-
morientes should be made in common form to
a Eegistrar, and not by way of motion to the
Court, unless there are special circumstances of
doubt as to possible survivorship, which will
be referred by the Eegistrar to the Court.
Roby, In the goods of, 82 L. J. P. 21; [1913]
P. 6 ; 107 L. t. 655 ; 57 S. J. 98 ; 29 T. L. E.
95 — Bargrave Deane, J.
Grant of Administration notwithstanding
Alleged Will.] — The Court has power to con-
demn a will upon motion. But where a party
interested failed to appear on such motion,
though served with a citation and personally
served with notice of the motion, and not being
professionally advised, appeared to be ignorant
of her rights, the Court granted administration
notwithstanding the alleged will. Brennan v.
Dillon (Ir. E. 7 Eq. 215; 8 Eq. 94) approved.
Gilbert, In the goods of, [1911] 2 Ir. E. 36—
Madden, J.
Administrator and Receiver Pendente Lite —
Validity of Will of Executor Disputed—
Estates of Executor and his Testator.] — A
testatrix was also executrix of the will of
A B, but died without taking probate. Her
executor had taken administration with the
will annexed of A B. In a pending suit in
wliich the will of the testatrix was disputed
1769
WILL.
1770
an administrator and receiver pending suit
was appointed with powers extending to the
estate both of A B and the testatrix. Faw-
ceit. In the goods of (58 L. J. P. 87 ; 14 P. D.
152), followed. Shorter v. Shorter, 80 L. J.
P. 120; [1911] P. 184; 105 L. T. 382;
27 T. L. E. 522— Evans, P.
Receiver — Appointment by Chancery
Division Pending Probate.] — The present
practice is for the Chancery Division to enter-
tain applications for the appointment of a
receiver pending the grant of probate or letters
of administration. Wenge, In re, 55 S. J. 553
—Eve, J.
Accounting Party.] — Where an applicant for
administration makes an ex parte statement,
subsequently contradicted by medical testi
mony, as to the incapacity of another next-of-
kin, his application will on this ground alone
be refused. There must be uberrima fides on
an ex parte application. The Court will not
grant administration to one who is himself an
accounting party. Toole, In the goods of,
[1918] 2 Ir. E. 188— Madden. J.
Undertaking by Grantee to Return Letters
of Administration to Registry — Insertion of
Undertaking in Letters.] — In order to provide
as far as possible against the loss or destruction
of letters of administration, all letters of
administration are in future to contain an
undertaking by the grantee to bring them into
the Eegistry when required. Heathcote, In
the goods of, 82 L. J. P. 40; [1913] P. 42;
108 L. T. 122: 57 S. J. 266; 29 T. L. E. 268
— Bargrave Deane, J.
Grant in Official Capacity — Successor in
Office.] — A grant of administration is personal
to the grantee, even if taken in an official
capacity, and does not pass to his successor in
office. lb.
Sale of Real Estate by Administratrix —
Will Appointing Executors Subsequently Dis-
covered— Revocation of Grant — Title of Bona
Fide Purchaser from Administratrix.] — The
person clothed by the Court of Probate with
the character of administrator of a deceased
person's estate is the legal personal representa-
tive of the deceased, unless and until the grant
of administration is revoked or determined,
with power to dispose of the deceased's assets
including the real estate, which is vested in
him by virtue of section 1 of the Land Transfer
Act, 1897. Hewson v. Shelley, 83 L. J. Ch.
607 ; [1914] 2 Ch. 13 ; 110 L. T. 785 ; 58 S. J.
397 ; 30 T. L. E. 402— C. A.
Letters of administration were taken out to
a deceased person's estate in the belief that
no will existed, and the administratrix sold
realty belonging to the estate. Subsequently
a will was found appointing executors, and
it was admitted to probate and the letters
of administration revoked : — Held, that the
purchaser had a valid title to the realty as
against the executors. Per Cozens-Hardy,
M.E., and Buckley, L.J. : An order granting
administration is a judicial act, and, even if
it could be held void on the ground of want of
jurisdic*^ion, the title of a purchaser from the
administrator would be protected under sec-
tion 70 of the Conveyancing Act, 1881. lb.
Graysbrook v. Fox (1 Plowd. 275), Abram
V. Cunningliam (2 Lev. 182), and Ellis v. Ellis
(74 L. J. Ch. 296 ; [1905] 1 Ch. 613) overruled.
lb.
Decision of Astbury, J. (82 L. J. Ch. 551;
[1913] 2 Ch. 384), reversed. lb.
3. On Presumption of Death.
See also Vol. XV. 491, 1977.
Affidavit — Uncertain Date — Motion Un-
necessary.]— No application on motion to
presume death is necessary where the fact of
death is clear and the only doubt is as to the
precise date. The proper grant will go in
common form on an affidavit swearing that
the deceased died on the earliest or the latest
possible date or on some day between the two.
Long Sutton, In the goods of, 81 L. J. P. 28;
[1912] P. 97 ; 106 L. T. 643 ; 56 S. J. 293—
Evans, P.
4. Next-of-Kin. •
See also Vol. XV. 493, 1979.
Discretion to Pass over Legally Entitled
Grantee — Special Circumstances — Grant to
Estate of Wife — Husband Convicted of Murder
of Wife.] — The conviction of a husband for
the wilful murder of his wife was held a
special circumstance within the meaning of
section 73 of the Court of Probate Act, 1857,
justifying the exercise of the discretion of
the Court to pass over his personal represen-
tative in giving to the next-of-kin of the
intestate wife a grant to her estate. The
doctrine that no person can enforce a right
resulting from his own crime applies. Crippen,
In the goods of, 80 L. J. P. 47 ; [1911] P. 108 ;
104 L. T. 224; 55 S. J. 273; 27 T. L. E. 258
— Evans, P.
5. Cum Testamento Annexo.
See also Vol. XV. 499, 1981.
Lost Will — Grant upon Motion.] — Where
the assets were small, and all parties inter-
ested consented, the Court granted adminis-
tration with the will annexed, in respect of
a lost will, upon motion. M'Guirk, In the
goods of, [1912] 2 Ir. E. 426— Madden, J.
Grant to " Stranger " — " Special circum-
stances."]-— With the consent of all parties
interested in the estate, the Court made a
grant under the Court of Probate Act, 1857,
s. 73, of letters of administration, with
the last will annexed, which appointed no
executors, to two persons, otherwise strangers,
named as executors in an earlier will of the
deceased, which the Court found to have been
revoked by the last will, and against which
it pronounced. Wathin, In the goods of;
Whitlark v. White, 84 L. J. P. 47; [1915]
P. 24 ; 112 L. T. 736 ; 59 S. J. 220 ; 31 T. L. E.
100— Evans, P.
Will Appointing Executors — Subsequent
Will — Revocation of Dispositions in First
1771
WILL.
1772
Will — No Executors in Second Will — Grant to
Executors of First Will — Special Circum-
stances.]— A testatrix in 1900 made a will in
which she appointed two executors. In 1911
she made another will which revoked the dis-
positions of property in the first will. The
second will contained no appointment of
executors. The testatrix left a son and
daughter and her second husband surviving
her. The executors of the first will were
willing that letters of administration of the
second will should be granted to them. The
Court declined to admit both wills to probate,
but held that within section 73 of the Court of
Probate Act, 1857, there were special circum-
stances making it convenient to grant letters of
administration with the second will annexed
to the executors of the first will, and made an
order accordingly. Watkin, In re; Whitlark
V. White, 31 T. L. E. 100— Evans, P.
Executors and Legatees Alien Enemies —
General Grant to Attorney of Executors —
Direction not to Distribute Estate without
Leave.] — Where the executors and residuary
legatees named in the will of a naturalised
British subject were alien enemies, a general
grant of administration, with the will
annexed, under section 73 of the Court of
Probate Act, 1857, was made to the attorney
appointed by the executors before the outbreak
of war, with directions not to distribute the
estate without the leave of a registrar.
Koenigs, In the Estate of, 59 S. J. 130—
Bargrave Deane, J.
6. Creditors.
See also Vol. XV. .500, 1983.
No Known Next-of-Kin — Small Estate —
Citation Dispensed with.] — ^A'here the estate
of an intestate was small and next-of-kin (if
any) had been advertised and enquired for
without result, and the deceased had himself
stated that he had no relations, a grant was
made to a creditor without citing the next-of-
kin (if any) under section 73 of the Court of
Probate Act, 1857. Heerman, In the goods of,
80 L. J. P. 7 : ri910] P. 357 : 103 L. T. 816 ;
55 S. J. 30 ; 27 T. L. E. 51— Bargrave Deane,
J.
Small Estate — Notice — Citation.] — On the
application of a creditor for administration of
a small estate, the Court made the grant
under section 73 of the Court of Probate Act,
1857, on proof of notice of the application to
the widow, without requiring her to be cited.
Bishop, In the goods of, 108 L. T. 928; 57 S. J.
611— Evans, P.
Renunciation of Probate by Executor —
Alternative Capacity of Executor as Creditor
— Grant de Bonis non.] — Eule 50 of the Non-
contentious Probate Rules of 1862 is discre-
tionary, and a grant may be made in another
capacity to a person who has renounced.
Toscani, In the goods of, 81 L. J. P. 15;
[1912] P. 1; 105 L. T. 911; 56 S. J. 93;
28 T. L. E. 84— Bargrave Deane, J.
A was a creditor of the deceased. He was
also sole executor of his will. A, as executor,
renounced probate, and a grant of administra-
tion was made to B, a residuary legatee, with
the will annexed. On the death of B leaving
assets unadministered, A was permitted to
take a grant with the will annexed de bonis
non in his alternative capacity as creditor.
lb.
7. Public Trustee.
The Court has power to make a grant of
administration to the Public Trustee, passing
over the heir-at-law, widow, and next-of-kin
of deceased. Woolley, In the goods of, 55 S. J.
220— Evans, P.
Where Alien Enemy Next-of-Kin.] — In the
case of a deceased intestate, whose next-of-kin
were alien enemies, it was held that the
administrator proper to be appointed under
the special circumstances of the case was the
Public Trustee as custodian under the Trading
with the Enemy (Amendment) Act, 1914, and
not a person designated as executor by the
deceased in an informal testamentary paper.
Schiff, In the goods of, 84 L. J. P. 79; [1915]
P. 86; 113 L. T. 189; 59 S. J. 303— Bargrave
Deane, J.
Alien Enemy's Estate — Domicil Abroad.] —
Under special circumstances the Court
permitted a limited grant of administration
to the estate of alien enemies domiciled
abroad to pass, under section 73 of the Court
of Probate Act, 1857, subject to restrictions
as to the disposal of the residue, to a British
subject domiciled in England who held a power
of attorney from the next-of-kin. Grundt, In
the estate of ; Oetl, In the estate of, 84 L. J.
P. 175; [1915] P. 126; 113 L. T. 189;
59 S. J. 510; 31 T. L. E. 437— Evans, P.
The Court nevertheless expressed the opinion
that, as a general rule, it was in the public
interest advisable that in such cases the grant
should go to the Public Trustee in his capacity
of custodian under the Trading with the
Enemy Amendment Act, 1914. lb.
8. Official Receiver and Trustee in Bankruptcy.
Bankruptcy of Person Entitled to Admin-
ister— Official Receiver — Citation — Sureties.] —
The right to a grant of administration of an
undischarged bankrupt vests under the Bank-
ruptcy Act, 1883, in his trustee in bankruptcy
without citing the bankrupt, and, if the official
receiver is the trustee in bankruptcy, without
sureties. The grant will be made under the
Court of Probate Act, 1857, s. 73. Bowron,
In the goods of, 84 L. J. P. 92 ; 112 L. T. 478 ;
[1915] H. B. E. 78; 59 S. J. 108— Bargrave
Deane, J.
Wife's Estate — Bankruptcy of Husband —
Grant to Trustee in Bankruptcy.]— Where the
husband of a deceased intestate was an un-
discharged bankrupt, a grant of administration
to the wife's estate was, under section 73 of
the Court of Probate Act, 1857, made to
the husband's trustee in bankruptcy, without
citation of or notice to the husband. Boicron,
In the Estate of, 59 S. J. 108— Bargrave
Deane, J.
1773
WILL.
1774
9. Attorneys.
See also Vol. XV. 520, 1986.
Grant to Minister Plenipotentiary of
Foreign Sovereign — Bond — Sureties.] — On an
application for a grant of administration to the
estate of a foreign Sovereign to be made to
tlic minister plenipotentiary of the foreign
State as attorney for the deceased Sovereign's
successor, the Court made a grant to such
attorney giving a bond, without sureties.
Siam {King) Estate, In re, 107 L. T. 589;
57 S. J. 61; 29 T. L. R. 40- "
Deane, J.
10. On Renunciation of Parties.
See also Vol. XV. 528, 1987.
Where A, the executor named in the will of
the testator, renounced probate, and adminis-
tration with the will annexed was granted
to the testator's residuary legatee, who died
intestate with no known relative, leaving the
estate unadministered, the Court made a
grant of administration de bonis non to A
as a creditor, though he had renounced
probate. Toscani, In the goods of, 81 L. J.
P. 15 ; [1912] P. 1 ; 105 L. T. 911 ; 56 S. J. 93 ;
28 T. L. E. 84— Bargrave Deane, J.
11. Limited Grant.
See also Vol. XV. 531, 1989.
Circumstances in which the Court will make
a limited grant of probate of a will. Falkner's
Estate, In re, .59 S. J. 599; 31 T. L. R. 525—
Bargrave Deane, J.
Grant during Incapacity of Surviving
Executor.] — A testator uppomted an executor
and an executrix. The executor proved the
will, liberty to prove being reserved to the
executrix. The executor died leaving an
executor. The executrix survived and became
incapable of acting, and a grant de bonis non
with the will annexed of the testator was
made to a residuary legatee for the use and
benefit of the executrix during her incapacity.
The executrix died intestate, leaving assets
of the testator unadministered. The residuary
legatee applied for a grant de bonis non with
the will annexed of the testator : — Held, that
the grant for the use and benefit of the sur-
viving executrix during her incapacity was
equivalent to a grant of probate to her ; that
consequently the executor of the deceased
executor did not represent the original
testator; and that as the executrix had died
intestate a grant de bonis non should be made
to the residuary legatee. Frengley, In the
goods of, [1915] 2 Ir. R. 1— Madden, J.
Alien Enemy's Estate — Domicil Abroad —
Powers of Public Trustees.]— In the case of
two alien enemies, domiciled in Hungary, who
died intestate in this country, leaving personal
estate in this country, their next-of-kin being
resident in an enemy country, the Public
Trustee expressed the view that he had no
power to take a grant of administration of the
estate of a person having a foreign domicil,
and the Court, in the special circumstances of
the case, made a limited grant, under sec-
tion 73 of the Court of Probate Act, 18.57, of
letters of administration to an acquaintance
of the deceased persons, who was a British
subject resident and domiciled in England and
was the holder of a power of attorney from
their next-of-kin, the grant being made on the
terms that the grantee should deliver the pro-
ceeds to the Public Trustee as the custodian
of enemy property, but the Court intimated
that in most cases of the administration of
the estates of alien enemies the Public Trustee
should take the grant, it being within his
power to accept a grant in cases where persons
died domiciled abroad. Grundt, In the estate
of; Oetl, In the estate of, 84 L. J. P. 175;
[1915] P. 126 ; 113 L. T. 189 ; 59 S. J. 510 ;
31 T. L. R. 437— Evans, P.
Limited Grant to Party Entitled to General
Grant — Caeterorum Grant — Foreign Domicil —
Concurrent Wills — Separate Executors.] — The
Court has a discretion under rule 30 of the
Non-contentious Rule of 1862 to depart from
the practice of refusing a limited grant to a
person entitled to a general grant. Brentano,
In the goods of, 80 L. J. P. 80; [1911] P. 172 ;
105 L. T. 78; 27 T. L. R. 395— Evans, P.
A domiciled foreigner left two wills, one
executed according to the form of his
domicil, dealing with foreign assets and
English personalty and appointing a foreign
executor, and the other executed according
to English form, dealing with English realty
only and appointing English executors. The
Court made separate grants — (a) to the Eng-
lish executors limited to the real estate, and
(6) a cceteroTum grant to the foreign
executor save and except the realty. lb.
n. Administration Bond.
See also Vol. XV. 553, 1992.
Public Trustee.] — By section 11, sub-sec-
tion 4 of the Public Trustee Act, 1906, the
Public Tnistee is not required to give a bond
of security. Woolley, In the goods of, 55 S. J.
220— Evans, P.
Assignment by Registrar — Jurisdiction.] —
A Registrar in the Probate Division has juris-
diction, without the intervention of the Judge,
to assign an administration bond under the
provisions of section 83 of the Court of Probate
Act, 1857, and it is the settled practice for
assignments of this nature so to be made by
the Registrar. Cope v. Bennett, 81 L. J.
Ch. 182; [1911] 2 Ch. 488; 105 L. T. 541;
55 S. J. 521, 725— Swinfen Eady, J.
Assignee — Suing in Representative Capa-
city.]— Tiu^ assigiu'e of an administration
bond who sues upon the boiul, though bound
to recover on belialf of himself, and all other
persons interested in tiie estate, is not bound
to state in the formal parts of his writ or
pleadings that he is suing in a representative
capacity. lb.
1775
WILL.
1776
c. Revocation and Alteration of Grant.
See also Vol. XV. 568, 1995.
Absence of Administrator — Goods Unad-
ministered — Revocation of Grant — De Bonis
non Grant — Small Estate.] — A grant of
administration which cannot be brought in for
cancellation, the administrator having taken it
with him out of the jurisdiction, may never-
theless be revoked, and a new grant de honis
non may be issued without citing or giving
notice to the administrator, where the goods un-
administered are of small value, on the ground
of avoidance of delav and expense. Thomas,
In the goods of, 81 L. J. P. 91; [1912]
P. 177; 107 L. T. 201— Evans, P.
D. Practice.
See also Vol. XV. 576, 1998.
Omission of Libellous and Malicious State-
ments— Absence of Dispositive E£fect of Words
Used.] — The Court will direct to be omitted
from the probate and any copies thereof issu-
ing from the registry, though not to be deleted
from the will itself, passages and expressions
of a malicious or libellous character which
have no dispositive effect. A. B., In the goods
of, or White, In re; 83 L. J. P. 67; [1914]
P. 153; 111 L. T. 413; 58 S. J. 534; 30
T. L. E. 536— Bargrave Deane, J.
Discovery — Privilege — Briefs to Counsel in
Previous Litigation against Testator — Solicitor
of Testator in Previous Litigation a Party to
Probate Action.] — Although the general prin-
ciple obtaining in testamentary litigation is
that all material acts of the testator should
be disclosed, this does not extend to instruc-
tions to counsel on behalf of the testator in
previous litigation, to which he was a party,
where the instructions in question were not
prepared at the instance of the testator him-
self, but by his solicitor. Cooper, In re;
Curtis V. Beaney, 80 L. J. P. 87; [1911]
P. 181; 105 L. T. 303; 27 T. L. R. 462—
Bargrave Deane, J.
One of the plaintiffs, an executor in an
action to propound a will, in which the capa-
city of the testatrix was in issue, had, as
her solicitor in a former action against her,
prepared briefs to counsel on her behalf to
conduct her defence : — Held, notwithstanding
a suggestion that the previous defence raised
her incapacity, that the briefs in question
were privileged from disclosure. 7b.
Costs — Will and Two Codicils Proved in
Common Form by Executors — Third Codicil —
Action by Beneficiary against Executors —
Defence of Undue Execution — Codicil Admitted
to Probate — Executors Condemned in Costs.] —
In a probate action, where the plaintiff and
a defendant, daughters of the testator, were
practically the only persons interested in the
residue under a will and two codicils thereto,
the plaintiff propounded a third codicil, two
years after probate of the will and earlier
codicils had been granted. The executors of
the will desired the plaintiff to propound the
third codicil before they would consent to
prove it, and in their defence pleaded that
the codicil was not duly executed and that the
testator did not know and approve of the con-
tents thereof. The codicil was admitted to
probate and the executors were condemned in
costs. Speke, In re; Speke v. Deakin,
109 L. T. 719; 58 S. J. 99; 30 T. L. R. 73—
Bargrave Deane, J.
Conduct of Parties Responsible for Will and
Benefiting by it the Cause of Litigation —
Power of Court to Order Costs of all Parties
to be Paid out of Legacies of Responsible
Parties, though Successful.] — It is a well-
established principle that the vigilant
suspicion of the Court is excited by the
preparation and obtaining of a will by a party
who is benefited by it. If on enquiry that
suspicion is removed, those instrumental in
bringing about that enquiry are not wholly in
the wrong, although they fail in the litigation.
In such a case the Court has power even
after a trial by jury to order that the costs
shall not follow the event, but that those
of all parties shall in compliance with
Order LXV. rule 14 (d) be defrayed out of
that portion of the estate which by the will
is bequeathed to the persons whose conduct
has been the cause of the enquiry, although
successful in the litigation. Child v. Osment,
83 L. J. P. 72; [1914] P. 129; 110 L. T.
990; 58 S. J. 596— Evans, P.
VI. CONSTRUCTION.
A. Admissibility of Extrinsic Evidence.
See also Vol. XV. 662, 2007.
Instructions.] — A testatrix bequeathed a
part of her residuary estate to " The Royal
Hospital for Women." There was no hospital
of which that was the correct designation, but
there were several institutions whose title was
more or less similar thereto : — Held, that evi-
dence of a conversation between the testatrix
and her solicitor when he received instructions
to prepare her will, in which the testatrix
expressed an intention to benefit a particular
institution, was not admissible to ascertain
which hospital was entitled to the bequest.
Bateman, In re; Wallace v. Mawdsley,
27 T. L. R. 313— Joyce, J.
Gift to Husband, Wife, and " their
daughter" — Latent Ambiguity.] — A testatrix
gave her residuary estate to be divided be-
tween her brother W., " his wife and their
daughter." The brother and his wife had in
fact several daughters, but it appeared that
the testatrix had been on terms of special
intimacy with one of them, P., and had by a
previous will given to her one-half of the
residuary estate : — Held, that evidence both of
the special intimacy existing between the
testatrix and P., and of the terms of the pre-
vious will, was admissible to shew which
daughter of W. was intended, and that on
the evidence the expression " their daughter "
referred to P. -.—Held, also, that W. and his
wife took each a third share of the residue,
1777
WILL.
1778
and not a moiety between them. Jeffery,
hi re; Nnssey v. Jeffery, 83 L. J. Ch. 251;
[1914] 1 Ch. 375 ; 110 L. T. 11 ; 58 S. J. 120
— Warrington, J.
Dixon, In re; Byram v. Tull (42 Ch. D.
306), followed. Jupp, In re; Jupp v. Buckwell
(57 L. J. Ch. 774; 39 Ch. D. 148), dis-
tinguished, lb.
Misdescription of Devisee — Ambiguity —
Person Dead at Date of Will.] — A testator
devised real property to .John William H., the
son of Israel H. The said Israel H. had a
son named John William H., who died in
1874 when ten days old, and seventeen years
before the date of the will : he had another
son, the defendant John Kobert H., who was
born in 1878 : — Held, that extrinsic evidence
was admissible to shew whom the testator in-
tended to benefit, and that John Robert H.
took under the devise. Ely, In re; Tottenham
V. Ely (65 L. T. 452). not followed. Halston,
In re; Eicen v. Halston, 81 L. J. Ch. 265;
[1912] 1 Ch. 435; 106 L. T. 182 ; 56 S. J. 311
—Eve, J.
B. Mistake or Misdescription.
See also Vol. XV. 681, 2011.
Legatee Accurately Named — Ambiguity —
Rival Claimant.] — Where a legatee is accu-
rately named in a will there is no rigid rule
forbidding any further enquiry as to who is
the person to take the benefit, but there is a
strong presumption against any person claim-
ing whose name is not that mentioned in the
will, which can only be overcome by positive
evidence of a cogent nature, clearly proving
that the testator did not mean the person so
named in the will to take the benefit. National
Society for Prevention of Cruelty to Children
V. Scottish National Society for Prevention of
Crueltij to Children, 84 L. J. P.C. 29; [1915]
A.C. 207; 111 L. T. 869; 58 S. J. 720;
30 T. L. R. 657— H.L. (Sc.)
A domiciled Scotsman by his will, made in
Scots form, left legacies to various Scottish
charities, and also a legacy to " The National
Society for the Prevention of Cruelty to Chil-
dren." There was a society of which that
was the correct title, which had its head-
quarters in London, and confined its opera-
tions to England; there was also a " Scottish
National Society for " the same object, which
worked in Scotland, and that society claimed
the legacy : — Held, that the English society
was entitled to the legacy. 7b.
Judgment of the Court of Session ([1913]
S. C. 412; 50 Sc. L. R. 271) reversed. 76.
c. Changing Words.
See also Vol. XV. 703, 2016.
"Or" read as "and" — Gift Over —
Repugnancy.] — Where a will contained an
absolute devise with a gift over in case the
devi.see should die " inf-estate or cliildlcss or
under the age of twenty-one (but not other-
wise) " and the devisee survived the testator
and attained twenty-one, but died a spinster
intestate,- /7p/(i, that either th(> first or the
second " or " must be read as " and," and
that the gift over failed as being either
void for repugnancy, or because the events
referred to had not happened. Crutchley,
In re; Kidsoti v. Marsden, 81 L. J. Ch. 644;
[1912] 2 Ch. 335 ; 107 L. T. 194— Parker, J.
D. Particular Words.
See also Vol. XV. 732, 2017.
Gift of Equitable Fee-simple — Gift Over on
Deatli " Unmarried and v?ithout lawful issue"
— Construing "Unmarried" "Widower" —
Extent of Gift Over— No Words of Limita-
tion.]— A testator who died in 1828 devised free-
holds to a trustee and his heirs upon trust for
J. and his heirs, but in case of J.'s death un-
married and without lawful issue then upon
trust for S. for her life, and after her death
upon trust for all and every her children
living at her death who should attain twenty-
one or marry, with benefit of survivorship.
J. married, but his wife predeceased him, and
he died without having ever had any issue : —
Held, that " unmarried " must be construed
in its secondary sense of " widower," since
otherwise the words " and without lawful
issue" were superfluous; and that the gift
over on J.'s death therefore took effect.
Sanders' Trusts, hi re (L. R. 1 Eq. 675) and
Chant, In re; Chayit v. Lemon (69 L. J.
Ch. 601; [1900] 2 Ch. 345), followed. Jones,
In re; Last v. Dobson, 84 L. J. Ch. 222;
[1915] 1 Ch. 246; 112 L. T. 409; 59 S. J.
218— Sargant, J.
Will before Wills Act, 1837— Equitable
Fee-simple Defeasible to Extent of Life
Estates only.] — But held also that, the testator
having died before the passing of the Wills
Act, 1837, the children of S. prima facie took
equitable life estates only ; that since an
equitable fee-simple exhausting the legal fee-
simple given to the trustee had already been
given by the will to J., there was no reason
for cutting down that equitable estate in fee-
simple to a greater extent than that of the
giving of equitable life estates to the children
of S. ; and that on the death of the survivor
of these children the property- reverted to the
estate of J., and passed under his will.
Gatenby v. Morgan (45 L. J. Q.B. 597;
1 Q.B. D. 685) applied. 76.
Gift Over on Death without Heirs to Person
Capable of being Heir — " Heirs " not Read
as "heirs of the body."] — A testator left a
chattel farm to his son John, and directed
that if he should die "without lawful aires
the farm should go to the testator's son
Thomas or his " airs," he paying certain
sums to John's widow and his brothers and
sisters. John died without issue : — Held.
that the context shewed that the words
" without lawful aires " meant without next-
of-kin, being children or descendants, and
that the gift over to Thomas took effect.
Kirkpatrick v. King (32 Ir. L. T. R. 41) dis-
tinguished. Gray v. Gray, [1915] 1 Ir. R.
261— Barton, J.
1779
WILL.
1780
Gift of Annuities — Gift of Legacies "subject
thereto."] — The meaning of the words
" subject thereto " in a will must be dis-
covered by an examination of the whole scheme
of the will, and must not always be taken to
mean subject to all that has gone before such
words. Colvile, In re; Colvile v. Martini,
105 L. T. 622 ; 56 S J. 33— Swinfen Eady, J.
" Become entitled as aforesaid."] — A
testatrix by her will dated November 19,
1850, devised real estate to trustees upon trust
to receive the rents and profits and pay them
to her daughter for life and after her death
to pay the rents and profits to the children of
the daughter until the youngest attained
twenty-one, and then to convey to the children
as tenants in common. But in the event
(which happened) of there being no child of
the daughter who attained twenty-one, the
testatrix directed that the trustees or trustee
of the will for the time being should convey
and assure the same to her three brothers
A, B, and C as tenants in common. " But in
case all or either of my said brothers shall
depart this life before they or he become
entitled as aforesaid, the trustees or trustee
for the time being of my will shall convey
and assure the share or shares of them or him
so dying, to my nieces as tenants in com-
mon." The daughter died in 1910, A died in
1861, B in 1885, and C in 1887. A had two
daughters, and B three. For the representa-
tives of A, B, and C it was contended that
they " became entitled " to a vested interest
at the death of the testatrix : — Held, that the
context shewed that " entitled as aforesaid "
meant entitled to have the property conveyed
to them, and that in the events that happened
the property passed to the nieces and not to
the representatives of the brothers. Whiter,
In re; Windsor v. Jones, 105 L. T. 749;
56 S. J. 109— Swinfen Eady, J.
Apparent Ambiguity — Choice of Interpreta-
tion— Ejusdem Generis Rule — Sufficiency of
Category.] — By his will the testator bequeathed
" all my pictures (except portraits) " to the
trustees of the National Gallery, " but the
portraits of myself and all my family and
other portraits ... I give and bequeath
... to my nephew " : — Held, that " except
portraits " meant the portraits thereafter
excepted — namely, those given to his nephew
and described as " the portrait of myself and
all my family and other portraits," and that
the words " other portraits " meant portraits
of the same category as family portraits.
Layard, In re; Layard v. Bessborough,
32 T. L. R. 122— Astbury, J.
E. Devisees and Legatees.
1. Gifts Generally.
Defendant Legatee Convicted of Man-
slaughter of Testator — Forfeiture of Right to
Take under Will — Public Policy — Defendant
Struck Out upon Interlocutory Proceedings.]
— It is contrary to public policy that a person
convicted of the manslaughter of a testator
should be permitted to take an interest under
that testator's will. Hall, In re; Hall v.
Knight, 83 L. J. P. 1; [1914] P. 1; 109 L. T.
587; 58 S. J. 30; 30 T. L. E. 1— C.A.
The doctrine that no person can enforce a
right directly resulting to him from his own
crime laid down in Cleaver v. Mutual Reserve
Fund Life Association (61 L. J. Q.B. 128;
[1892] 1 Q.B. 147) applied. lb.
If the facts are indisputable the Court can
deal with a pure question of law on interlocu-
tory proceedings. lb.
2. Gifts to what Persons.
a. Wife.
See also Vol. XV. 743, 2020.
Gift to Wife "during her widowhood" —
Condition — Bigamous Marriage.] — The plain-
tiff, whose husband disappeared in 1894 and
was not heard of again till 1910, went through
the ceremonj- of marriage with the testator iri
1903. The testator believed himself to be
lawfully married to the plaintiff, although he
knew that there was a possible risk of her
husband being alive, and they lived together
as man and wife until his death in 1906. By
his will the testator gave certain things to
" my wife " and made other bequests to her
" during her widowhood and after her de-
cease or second marriage " to his daughters :
— Held, upon the construction of the will and
in the circumstances of the case, that the
plaintiff, although not legally the testator's
widow, was entitled to enjoy the property
until she died or re-married, as if she were his
widow. Hammond, In re : Burniston v.
White, 80 L. J. Ch. 690; [1911J 2 Ch. 342;
105 L. T. 302; 55 S. J. 649; 27 T. L. E. 522
— Parker, J.
Gift to Widow for Benefit of Children.]-
A bequeathed his property to his wife in the
following terms : "I leave and bequeath all
my property, chattels, money, bank shares,
and my life insurance, or whatever I am
possessed of or entitled to, to my beloved
wife to be disposed of as she may think best
for the good of our children " : — Held, that
under this bequest, the wife became entitled
beneficially to the whole of the property.
Berry man. In re; Berryman v. Berryman,
[1913] 1 Ir. E. 21— M.E.
b. Children.
See also Vol. XV. 749, 2022.
Parricide — Father's Estate — Whether
Lunatic Entitled to Share.]— A lunatic who
kills his father is entitled to benefit under his
father's will, if his father has left a will, or
to receive his proper share under his father's
intestacy if his father has died intestate.
Houghton, In re; Houghton v. Houghton,
84 L. J. Ch. 726; [1915] 2 Ch. 173; 113 L. T.
422; 59 S. J. 562; 31 T. L. E. 427— Joyce, J.
Issue of Deceased Son Living at Testator's
Death — Child en Ventre sa Mere.] — A child
of a testator's son en ventre sa mere, and born
after his father's and the testator's death, is
" livinjT " at the time of the death of the
1781
WILL.
1782
testator so as to make section 33 of the Wills
Act, 1837, apply to a devise or bequest to the
testator's deceased son. Griffiths, In re;
Griffiths V. Waghorne, 80 L. J. Ch. 176;
[1911] 1 Ch. 246 ; 104 L. T. 125— Joyce, J.
"Remaining children."] — The words
" remaining children," unless another mean-
ing can be inferred from the context, must be
taken to mean the other children, or '" the
rest " of the children not otherwise dealt with,
and cannot be construed, apart from other
circumstances in the will to suggest such con-
struction, to mean the surviving children.
Speak, In re; Speak v. Speak, 56 S. J. 273
— Parker, J.
" Younger children " — Eldest Son — Portions
— Period of Distribution — Maintenance.] — By
his will a grandfather devised an estate to his
son W. for life, with remainder to his first and
other grandsons (the sons of W.) successively,
iu tail male, with remainder, if no grandson
attained twenty-one, to the testator's grand-
daughter or granddaughters, or such of them
as should attain twenty-one or marry, and if
more than one in equal shares as tenants in
common in tail, with cross-remainders. The
testator charged the estate in favour of grand-
children in these terms : " For the younger
children of my said son W. or such of them
as shall attain twenty-one, or being daughters
shall marry before that age, that is to say,
for one younger child the sum of 3,0001., for
two younger children the sum of 4, COOL,
equally between them, and for three or more
younger children the sum of 5,000Z. in equal
proportions." After the death of his grand-
father and father, T., the first-born grandson,
became tenant in tail male in possession of the
estate, and died in 1910, under age and un-
married. There survived him one brother,
who thereupon became the tenant in tail male
in possession, and two sisters. None of them
had attained twenty-one or married. The
minors were wards of Court, and there was a
sum of about 2,300L in Court representing
accumulations of interest on the portions
charge of 5,000L provided by the will which
had been lodged by the receiver pursuant to
order out of the rents and profits of the estate
accruing since T. was in possession as tenant
in tail male : — Held, first, that the accumu-
lations of interest upon the younger children's
portions charge, after providing for main-
tenance, belonged to the administratrix of T. ;
secondly, that T. had not qualified to receive
a younger child's portion, because he had died
before the period of distribution, and had
been in the character of " (ddcst sou " in pos-
session of the estate ; and that consequently
no larger sum than 4,000/. could ever be
raisable for the purpose of the younger chil-
dren's portion. The Court also declared that
the sum presumptively raisable on foot of the
portions charge did not bear interest during
the infancy or spinsterhood of the female
minors, but only such annual allowance in lieu
of interest as the Lord Chancellor might deem
necessary for their reasonable maintenance.
Caldbeck v. Caldbeck, [1911] 1 Ir. E. 144
— Barton, J.
Illegitimate Children — Erroneous Belief of
Testatrix as to Status of Children.] — A
testatrix by her will dated January 3, 1911,
gave her residue in trust for her brother for
life and after his death in trust " for all or
any of the children or child " of her brother,
living at the death of the survivor of herself
and her brother, and the children or child then
living of any deceased child of his. The
testatrix died on October 16, 1911, and her
brother ten days later. Both at the date of
the will and of the death of the testatrix her
brother had six living illegitimate children by
a woman to whom he was reputed to be
married and who was accepted as his wife in
the society in which they moved. She died in
1900. The six children were received as
legitimate. The testatrix knew all of them
and was fond of some, and believed all of them
to be legitimate. The testatrix's brother mar-
ried a lady in 1904, by whom he had two
legitimate children : — Held, that, as the case
could not be brought within either of the two
classes of cases in which the prima facie
meaning of " children " — that is, " legitimate
children " — is departed from, as laid down in
Hill V. Crook (42 L. J. Ch. 702; L. E. 6 H.L.
265) by Lord Cairns, the two legitimate
children only took under the gift. Pearce,
In re; Alliance Assurance Co. v. Francis,
83 L. J. Ch. 266 ; [1914] 1 Ch. 254 ; 110 L. T.
168; 58 S. J. 197— C. A.
Brown, In re ; Penrose v. Manning (63 L. T.
159), approved. Du Bochet, In re; Mansell v.
Allen (70 L. J. Ch. 647; [1901] 2 Ch. 441),
disapproved. lb.
Per Swinfen Eady, L.J. : There can be a
class in which illegitimate children share with
legitimate. lb.
Gift to Brothers and Sisters — Substantial
Gift to their Issue — One Legitimate Sister
Only — One Illegitimate Sister — Rights of
Issue of Illegitimate Sister.] — Where a
testator made a bequest to his " brothers and
sisters " with a substitutionary gift over to
their issue, and he had, in fact, four brothers
and two sisters, only one of whom was legiti-
mate, and the other illegitimate, — Held, that
the Court could not give adequate effect to the
use of the plural term " sisters " without
including the illegitimate sister as a persona
designata under the will, and that her issue
were accordingly entitled to share in the resi-
duary estate. Pearce, In re; Alliance Assur-
ance Co. V. Francis (83 L. J. Ch. 266; [1914]
1 Ch. 254), commented on and applied.
Embury, In re; Bowyer v. Page, 111 L. T.
275; 58 S. J. 612— Sargant, J.
c. Issue.
See also Vol. XV. 786, 2025.
"Issue" — Prima Facie Meaning — Ambig-
uity— Rebuttal of Rule in Sibley v. Perry by
Internal Evidence. — The lule in Siblcij v.
Perry (7 Ve.s. 522) is only a rule which has
determined a particular ambiguity in a par-
ticular way. W'here there is internal evidence
in the will sutHcient for the Court to draw an
inference that the narrow interpretation of the
word " issue " by that rule to mean children
1783
WILL.
1784
only is rebuttable, such inference should be
drawn and the broader and prima facie mean-
ing of the word " issue," as including all
descendants thereby restored. Embury, In re;
Page v. Bowyer, 109 L. T. 511; 58 S. J. 49—
Sargant. J.
Gift to Issue — Per Stirpes — Determination
of Stirpes.] — A testator gave property in trust
for the issue of his deceased aunts, C. E. H.
and H. M. M., living at his decease, knd he
added, " such issue to take per stirpes and
not per capita." There were thirteen separate
families of the issue : — Held, that the words
" per stirpes " referred to the issue and not
to the two aunts, and that consequently the
property was devisible into thirteen shares,
and not into two shares, and that one such
share was to be in trust for each family of
issue. Robinson v. Shepherd (i De G. J. & S.
129) followed. Gibson v. Fisher (37 L. J.
Ch. 67 ; L. R. 5 Eq. 51) not followed. Bering,
In re; Neall v. Beale, 105 L. T. 404—
Warrington, J.
Life Interest to Daughter and Surviving
Husband — Remainder to " Issue " upon Death
or Re-marriage of Husband.1 — By his will
dated October 31, 1883, a testator appointed
trustees and gave to them his property of
every kind with powers of management, and
provided as follows : " And as to the rest,
residue, and remainder of my property I direct
the income thereof to be paid to and amongst
ray four children (naming them) in equal
shares during their natural lives, and after
the decease of any one or more of them leav-
ing a husband or wife him or her surviving,
then the share of such deceased child or chil-
dren to be in trust for such husband or wife
him or her surviving, for the term of each
of their natural lives or until they remarry,
and after their respective deaths or remar-
riage then to the issue (if any) of such de-
ceased child, and in case of no such issue to
go to or amongst my surviving children or
child, or their, his, or her issue ; and I further
direct that all the benefits conferred by this
my will shall be had and enjoyed without
power of anticipation by the persons or person
for the time being otherwise entitled for their
lives or life as aforesaid." The testator died
on August 22, 1889. One of the testator's
children was married and had children living
at the date of the will. The other three chil-
dren were married after the date of the will.
The bulk of the property subject to the trusts
consisted of chattels real, and there was also
some real estate : — Held, first, that in the
devise " to the issue (if any) of such deceased
child " the word " issue " was a word of pur-
chase and not of limitation, both as regards
the real and j)ersonal estate of the testator;
secondly, that the word " issue " included all
descendants, limited in each case to such of
them as were living at the time when the gift
in each case took effect; and thirdly, that as
the class constituting " issue " might not be
ascertainable within legal limits, the gift to
such issue, as well as the gift over in default
of issue, was void as infringing the rule
against perpetuities. Taylor's Trusts, In re;
Taylor v. Blake, [1912] 1 Ir. R. 1— Wylie, J.
Issue to Take Predeceasing Parent's Share
— Whether Gift to Issue Subject to Conditions
Affecting Parent's Share.] — A testator directed
his trustees to hold a share of the residue of his
estate for his eldest son in liferent and his
issue, if any, in fee, declaring that, in the
event of the death of that son without issue,
the capital of his share should fall and belong
to the testator's two other sons and his three
daughters " equally among them and the sur-
vivors or survivor of them, the issue of any
of them predeceasing being entitled equally
among them, if more than one, to their deceased
parent's share." The liferenter died without
issue, predeceased by two of his sisters, who,
however, left issue, some of whom, though
surviving their parent, predeceased the life-
renter : — Held, that, as the issue were called
in place of their deceased parents and not as
original legatees, the gift to them was subject
to the same conditions as the gift to their
parents; and, accordingly, that no vesting had
taken place in the issue who predeceased the
liferenter. Martin v. Holgate (35 L. J. Ch.
789; L. R. 1 H.L. 175) distinguished.
Addie's Trustees v. Jackson, [1913] S. C. 681
— Ct. of Sess.
d. Cousins.
See also Vol. XV. 808, 2027.
Meaning of "half-cousin."] — Under a
bequest to " my cousins and half-cousins "
where the testatrix left her surviving first
cousins, first cousins once removed, first
cousins twice removed, and second cousins, —
Held, that first cousins, first cousins once
removed, and second cousins were entitled.
Chester, In re; Servant v. Hills, 84 L. J. Ch.
78; [1914] 2 Ch. 580— Sargant, J.
e. Nephews and Nieces.
See also Vol. XV. 810. 2027.
Words of Futurity — Gift to Nephews and
Nieces — Gift to Children of Nephew or Niece
who should Die in the Lifetime of the Tenant
for Life under the Will — Niece Dead at Date
of the Will, Leaving a Child.]— The child of a
niece, dead at the date of the will, of a testator
was held entitled to share under a trust " for
all my nephews and nieces living at the decease
of the said Sarah Waterfall (the tenant for
life), as tenants in common in equal shares,
provided always that if any of my said
nephews and nieces shall die in the lifetime of
the said Sarah Waterfall, leaving a child or
children who shall survive her, and being a
son or sons shall attain the age of twenty-one
years, or being a daughter or daughters shall
attain that age, or marry under that age, then
and in every such case the last-mentioned child
or children shall take (and, if more than one,
equally between them) the share which his,
her, or their parent would have taken of and
in the proceeds of my said estate if such
parent had survived the said Sarah Water-
fall." Taylor, In re; Taylor v. White,
56 S. J. 175— Swinfen Eady, J.
Gift to Named Persons on Attaining
Twenty-one — Nephews and Nieces — Some
1785
WILL.
1786
Attain Twenty-one, but Predecease Testatrix
— Class — Lapse.] — A testatrix by her will
gave the residue of her estate upon trust for
all her nephews and nieces thereinafter named,
" that is to say, W. B. and J. A., the two
children of my sister, H. A., and A. P., W. B.,
C. L., A. D., and E. B., the five children of
my brother, S. B., who being sons have
attained or shall attain the age of twenty-one
years, or being daughters have attained or
shall attain that age or shall marry under that
age, in equal shares as tenants in common."
All the named nephews and nieces attained
the age of twenty-one, but three predeceased
the testatrix : — Held, that, the gift was not a
class gift, but a gift to named persons, and the
shares of those who predeceased the testatrix
lapsed. Bentley, In re; Podmore v. Smith,
110 L. T. 623; 58 S. J. 362— Joyce, J.
Appointment of Named Nephews as Trustees
— Named Nephews Including Nephews by
Affinity — Residuary Gift to " my nephews and
nieces."] — A testatrix appointed " her
nephews " A, B.. and C executors and trustees
of her will, and devised and bequeathed the
residue of her property to them upon trust to
divide the same equally between " her
nephews and nieces " living at the date of her
death and the children then living of " her
nephews and nieces " who should have pre-
deceased her, such children to take equally
between them the share only to which their
parent would have been entitled. Of the three
executors and trustees named A only was
a nephew by consanguinity of the testatrix,
B and C being nephews of a deceased hus-
band : — Held, that only nephews and nieces
by consanguinity of the testatrix and the chil-
dren of such of them as had predeceased her
shared in the residuary gift. Green, In re;
Bath V. Cannon, 83 L. J. Ch. 248; [1914]
1 Ch. 134; 110 L. T. 58; 58 S. J. 185—
Sargant, J.
f. Heirs.
See also Vol. XV. 835, 2032.
Devise of Realty — Remainder to " nearest
male heir."] — A testator by his will devised
real estate to H. M. for life, and after his
decease " to my nearest male heir, and should
there be two or more in equal degrees of con-
sanguinity to mc " then "unto the eldest of
my male kindred for the term of his natural
life, with remainder to the heirs of the body
of my said eldest male relative." The testator
died in 1897. The tenant for life died in
1910. At the time of the death of the testator,
and at the time of the death of the tenant for
life, a Mrs. \V., a first cousin of the testator,
was his heiress-at-law. At the time of the
death of the testator, L. W., the son of a
cousin, was his nearest male relative. He died
without issue in 1901, and at the date of the
death of the tenant for life the appellant, the
son of a sister of L. \V., was the nearest male
relative of the testator : — Held, that, having
regard to the whole will, " nearest male heir "
was not to be given the strictly technical mean-
ing of " heir male," that there was no intes-
tacy, and, on the death of the tenant for life.
the estate vested in the appellant, who was
the only living male relative of the testator.
Lightfoot v. Maybery, 83 L. J. Ch. 627;
[1914] A.C. 782; 111 L. T. 300; 58 S. J. 609
— H.L. (E.)
Judgment of the Court of Appeal (82 L. J.
Ch. 240; [1913] 1 Ch. 376) reversed. lb.
g. Servants.
See also Vol. XV. 854, 2032.
"Clerk" in a Certain Specified Employ-
ment— Claim by Pursers on Ships — Whether
Entitled to Participate.] — By a clause in his
will a testator bequeathed legacies free from
duty to such of the persons as should at his
death be in his employ, or the employ of any
firm or company of which he was a member
or director at his death. There followed the
names of certain persons. The clause then
contained the following : " A year's salary to
each clerk not included in the above list who
shall have been ten years in the employ of
Elder, Dempster, and Co., or Elder, Dempster
Shipping Limited." A half-year's salary or
three months' salary was given to each clerk
not mentioned or referred to above who should
have been five years or one year respectively
in the same employ. The question was, first,
whether a purser was a " clerk " within the
meaning of the clause in the will ; and secondly,
whether pursers engaged by Elder, Dempster
& Co. as managers of various steam shipping
liners were pursers in their employ within the
meaning of that clause : — Held, that a purser
was not a " clerk " within the meaning of the
clause, he being a member of the crew of the
ship on which he was employed in that
capacity, and it was immaterial that he had
certain clerical work to discharge on board
such ship. Jones, In re; Williams v. Att.-
Gen., 106 L. T. 941— C.A.
Held, also, that the pursers in question were
not in any case in the employ of Elder, Demp-
ster & Co., for although that firm were not
only managers of the various steam shipping
lines, but also owned shares in the same, they
were not " employers " of the pursers. lb.
Bequest to Indoor and Outdoor Servants —
"Amount of a year's wages " — Servants not
Engaged at a Yearly Wage.] — Testator be-
queathed to each of his servants (indoor and
outdoor) who should have been in his service
for five years previously to his death " the
amount of one year's wages in addition to
what may be then actually due to them for
wages " : — Held, that the bequest was not
confined to servants engaged by the year or
at a yearly wage, but extended also to ser-
vants who fulfilled the prescribed conditions,
but were engaged at quarterly or weekly
wages. Blackwell v. Pennant (22 L. J. Ch.
155; 9 Hare, 551) and Ravensworth (Earl),
In re; Ravensworth v. Tindale (74 L. J. Ch.
353; [1905] 2 Ch. 1), distinguished. Sheffield
(Earl), In re; Ryde V. Bristoio, 80 L. J.
Ch. 521 ; [1911] 2 Ch. 267 ; 105 L. T. 236—
C.A.
Gift to "Domestic servants" — Service
during Two Years — Companion — Housekeeper
ITS-
WILL.
1788
— Certified Male Nurse.] — A testator be-
queathed to each of his domestic servants who
should have been in his service for two years
prior to his death one year's wages free of
duty. There had been in the testator's service
for two years prior to his death a companion-
housekeeper and a certified male nurse. The
latter did not sleep in the house, and was
absent from duty for four months during the
two years : — Held, that the companion-house-
keeper and male nurse were domestic servants
and entitled to a year's wages. Held also,
that the absence of the male nurse for four
months being taken with the consent of the
testator did not prevent the service being con-
tinuous. Latcson, In re; Wardley v. Bringloe,
83 L. J. Ch. 519; [1914] 1 Ch. 682: 110 L. T.
573; 58 S. J. 320; 30 T. L. R. 335— Eve. J.
Legacy to " Man seryant " — One Person
Answering the Description — Intention of
Testator,! — A testator, who had in his employ-
ment a valet and a chauffeur, gave a legacy
to his " man servant " if he should be in his
employment at the date of his death. At the
date of his death the testator had only the
chauffeur in his employment : — Held, that the |
chauffeur was entitled to the legacy. Bell,
In re; Wright v. Scrivener, 58 S. J. 517 —
Warrington, J.
h. Persons Filling a Particular Description.
See also Vol. XV. 858, 2033.
Executor — Subsequent Revocation by Codicil
of Appointment as Executor — Implied Revoca-
tion of Legacy.] — A testatrix by her will
appointed '" my friends F. and C. to be the
executors of this my will, to each of whom I
give the legacy, or sum, of 500L" By a codicil
the testatrix declared, " I hereby revoke the
appointment of C. as executor, and in his
stead appoint the Public Trustee as executor
of my will with F." : — Held, that the legacy
in the will was to C. in the character of
executor, and that C. was not entitled to take.
Walne v. Hill ([1883] W. N. 171) followed.
Russell, In re; Public Trustee v. Campbell,
56 S. J. 651— Joyce, J.
Residuary Gift to Sole Executor — " At his
own disposal" — Beneficial Gift.l — A testatrix
by her will, after appointing a sole executor
and bequeathing legacies to several persons,
including the executor by name, but declaring
no trusts, provided as follows : " the remain-
der or residue of my property (if any) shall be
at the discretion of my executor and at his
own disposal " : — Held, that the executor took
the residue beneficially. Howell, In re;
Buckingham, In re; Liggins v. Buckingham,
84 L. J. Ch. 209: [19151 1 Ch. 241; 112 L. T.
188-C.A.
Decision of Warrington, J. (83 L. J. Ch.
811; [1914] 2 Ch. 173), reversed. lb.
Legacy to Trustees and Executors — Codicil
— Appointment of New Trustee in Place of
Original Appointment — Will to be Construed
as if Name of New Trustee Originally
Inserted.' — By her will the testatrix ap-
pointed the plaintiff and B. executors and
trustees, and she gave to each of her trustees
a legacy of 500/., and also to each of her
trustees for the time being 50Z. per annum so
long as any of the trusts therein contained
should continue. By a codicil the testatrix
revoked the appointment of B. as executor
and trustee and the legacy of 500Z. and the
annual allowance, and appointed W. to be
executor and trustee, and gave him a legacy
of 50L for his trouble. She further declared
that her will should be construed as if the
name of W. had been inserted instead of the
name of B. : — Held, that W. was entitled to
the legacy of 501. and to the annuity of 501.,
but not to the legacy of 500Z. Mellor, In re;
Dodgson v. A.^hicorth. 56 S. J. 596;28T. L. E.
473— Eve. J.
DeYise to Parish Priest — Gift to the Office
and not for Personal Benefit — Trust.] — A
testator, after devising a life estate to his wife
in certain freeholds, provided as follows : " At
my wife's demise I desire that the two houses
become the property of the parish priest of
U. on condition of paying lOL yearly to my
brother's son P., and also 11. yearly for masses
for the repose of the souls of the deceased
members of my family." The devise of the
freeholds to the parish priest was void under
section 16 of the Charitable Donations and
Bequests Act as the testator died within three
months of the date of his will : — Held, that
the parish of U. was a trustee for the
testator's nephew P. in respect of the
annuity of 10/., and for the heir-at-law of the
testator as to the rest of the property.
Corcoran v. O'Kane, [1913] 1 Ir. R. 1—
Barton, J.
Bequest to Home — Absorption of Home in a
Larger Association.^ — A testatrix by her will
left a sum of money to a home for women and
children. In the year in which the will was
made the home referred to was absorbed into
a larger institution, carrying on the same
work : — Held, that the larger association took
the bequest. Wedgwood, In re; Sweet v.
Cotton, 83 L. J. Ch. 731 ; [1914] 2 Ch. 245 ;
111 L. T. 436; 58 S. J. 595; 30 T. L. E. 527
— Joyce, J.
"Legatees."] — Bequest of the residue "to
the several legatees other than charitable
legatees hereinbefore named " : — Held, that
" legatees " meant persons to whom a bequest
of personalty was made, and did not include
a devisee of a freehold farm. Held, also, that
a legatee to whom a non-charitable legacy was
given by a subsequent clause in the will was
entitled to a share in the residue. Ellard v.
Phelan, [1914] 1 Ir. E. 76— Eoss, J.
" Relatives " of Deceased Person.] — A
widow by her will left her residuary estate
in trust for her son J. for life, and after his
decease in trust for his children, and in case
of no such issue (which event happened) in
trust to pay the income to her daughters M.
and B. and her grandson W. for their lives,
in such shares as J. should appoint, and on
their respective deaths the principal to be
paid and transferred to such relatives of J.'s
father, S. (the testatrix's late husband) as J.
1789
WILL.
1790
should by will appoint. J. died without
making any appointment, and was survived
by W., who was the last surviving tenant for
life : — Held, that on the death of W. the per-
sons entitled to the testatrix's residuary estate
were the statutory next-of-kin of S. living at
the death of J. Swan, In re; Reid v. Swan,
[1911] 1 Ir. R. 405— C. A.
Gift to Successors to Title.] — A testator
having a title in the peerage of Scotland and
in the peerage of the United Kingdom, left his
property in England and Scotland without
reservation or hindrance to his successors in
the titles. One individual, both at the time of
the will and of the death of the testator, was
in fact next entitled to both titles : — Held,
that the intention of the testator was to
make an absolute gift of the property in each
country to the person who should succeed him
in either title. Cathcart (Earl), In re, 56 S. J.
271— Warrington, J.
Contingent Gift of Chattels — Disentailing
Assurance — Sale of Valuable Picture —
Devolution.] — A testator made a specific
bequest of chattels to his wife for life, and
after her death "to the person who under this
mj' will shall at her death become entitled
to the possession of my mansion, . . . such
person to take the same absolutely for his or
her own benefit." After his death the widow
and the eldest son executed a disentailing
assurance as to the mansion, and thereby
settled the property upon such trusts as they
should jointly appoint, and in default of
appointment upon the trusts subsisting prior
to the execution of the disentailing assurance
under which the son was tenant in tail in
remainder : — Held, that it being impossible to
say that the eldest son would become entitled
to the mansion on the death of the widow^, as
he might die in her lifetime, the legacy of
chattels was an ordinary contingent gift after
the life of the widow to the person who under
the limitations of the will should at her death
become entitled to the possession of the
mansion ; and that the eldest son was not at
present absolutely entitled in reversion to the
chattels. Caledon (Earl), In re; Alexander v.
Caledon, 84 L. J. Ch. 319; [1915] 1 Ch. 150;
112 L. T. 75— Joyce, J.
3. Gifts to a Class.
See also Vol. XV. 883, 2033.
Gift in Remainder — Gift to Next-of-Kin at
Death of Tenant for Life without Issue — Time
for Ascertaining Class — Artificial Glass.] —
A testatrix gave her residuary estate to her
daughter for life with remainder to her issue,
and in default of issue to trustees upon trust
at their discretion to divide the same amongst
such one or more of the persons who, at the
time of the daughter's decease, should be
the testatrix's next-of-kin according to the
Statutes of Distribution. The daughter sur-
vived the testatrix, and died unmarried : —
Held, that the class to take was an artificial
class of next-of-kin, which was to be ascer-
tained at the death of the daughter. Helsby,
In re; Neate v. Bozie, 84 L. J. Ch. 682;
112 L. T. 539— Eve, J.
Description of a Class — Children or other
Issue.] — A testator left certain residue of his
estate " unto and equally between the children
or other issue " of certain persons who should
be living at the death of his wife, " all such
children or other issue to take in equal shares
per capita " : — Held, that if there were any
children alive at the time of the death of the
wife of the testator they took the property,
to the exclusion of all others, per capita;
but if there were no children then alive, the
other issue took per capita. Pearce, In re;
Eastwood V. Pearce, 56 S. J. 361 — Warrington,
J. Affirmed, 56 S. J. 686— C.A.
Gift to Nearest of Kin of Deceased Husband
and of His First Wife — Nearest of Kin of Both
Jointly, or of Each.] — A testatrix by her will
gave certain leasehold property to her son for
life and after his decease to his lawful issue
equally. In the event of his death without
leaving lawful issue, which event happened,
she gave the property " unto the nearest of
kin of my said late husband W. S. deceased
and of S. S. his former wife deceased in equal
shares and proportions." There was no issue
of the union of W. S. and S. S., nor were
they, so far as was known, relations of each
other before marriage : — Held, that the gift
was to a class consisting of the nearest of kin
of W. S. and the nearest of kin of S. S. living
at the death of the testatrix), and not to a
class consisting of persons who were the
nearest of kin of both of them jointly. Pycroft
V. Gregory (4 Russ. 526) distinguished.
Soper In re; Naylor v. Kettle, 81 L. J. Ch.
826 ; [1912] 2 Ch. 467 ; 107 L. T. 525— Parker,
J.
Class, when Ascertained — Child who Pre-
deceased Tenant for Life — Implied Gift.] —
A gift upon trust for the daughter of the
testatrix for life, and after her death " upon
trust for her child, if only one, or her children
in equal shares if more than one, and the issue
of any deceased child or children, such issue
being born in the lifetime " of the daughter,
does not confer any interest on a daughter
who died before the death of the tenant for
life a spinster. Shaw, In re; Williams v.
Pledger, 56 S. J. 380— Neville, J.
When Class Closes— Forfeiture.]— By a
second codicil a testator narrowed down an
absolute gift in the will to W. J. Curzon,
which had been reduced to a life interest in
the first codicil to a life interest forfeitable
on bankruptcy, and after this interest had
determined the property was to go upon the
trusts " in the will contained," " and as an
acceleration to such trusts " — that is, to all
the children of the said W. J. Curzon who
attained twenty-one. One child, the plaintiff,
had attained that age : — Held, that the class
was closed so soon as W. J. Curzon was ad-
judicated a bankrupt. Curzon, In re; Martin
V. Perry; 56 S. J. 362— Neville, J.
Life Interest — Remainder to Children —
Attainment of Twenty-one — Divisibility of
Fund.] — A testator gave his residuary estate
upon trust to pay one equal half part of the
annual income to each of his two sons and
1791
WILL.
1792
subject thereto as to the capital and income
for their children who being sons should attain
twenty-one, or being daughters should attain
that age or marry, such children to take per
capita. The testator died in 1895, and both
of his sons survived him, each of them having
two children, who were infants at the death
of the testator. In 1899 one of the sons died,
and in 1912 his eldest son attained twenty-one.
The other son was alive, being over sixty years
old at the date of this summons, and the other
three children were still infants, and the ques-
tion arose whether the class of children to
take was closed when the eldest child attained
twenty-one : — Held, that the class was not
closed till the death of the son who was still
alive and entitled to the annual income of
one half of the fund, so that any child born
in the lifetime of such surviving son would be
entitled to a share, and therefore the child
who had already attained twenty-one was not
entitled to call for payment out of his share
till the death of such son. Rule in Andrews
V. Partington (3 Bro. C.C. 401) held not appli-
cable. Emmet v. Emmet (49 L. J. Ch. 295;
13 Ch. D. 484) followed. Faux, In re; Taylor
V. Faux, 84 L. J. Ch. 873; 113 L. T. 81;
59 S. J. 457 ; 31 T. L. R. 289— Astbury, J.
4. Gifts to Survivors.
See also Vol. XV. 937, 2037.
Cross-limitations — Gap — Implication —
"Survivors or survivor" — Intestacy.] — A
testator gave the proceeds of sale of bis
residuary personalty upon trust to pay the
income to his three daughters F., S., and H.
for their lives in equal shares, with a gift
over of the share of any of them dying leaving
issue to her children at twenty-one in equal
shares. Then followed a direction that, in
the event of any of the daughters dying with-
out leaving issue, the " survivors or survivor "
of them should take the share of such deceased
daughter in such income for life, and then a
gift, in case all the said daughters should die
without leaving issue, to the testator's
statutory next-of-kin. H. died first, a
spinster, then F., leaving six children, who
attained twenty-one ; and lastly S. died with-
out leaving issue : — Held, that, in order to
imply cross-limitations to the children of F.
on the shares of S. and H. in the events which
had happened, it would have been necessary
to construe " survivors or survivor " as
" others or other," and that could not be done
in a case where the only gift over was to
the survivors as life tenants with no gift in
remainder to their children or issue. No cross-
limitations could therefore be implied, and
there was an intestacy as to the shares of S.
and H. Mears, In re; Parker v. Meats,
88 L. J. Ch. 450; [19141 1 Ch. 694; 110 L. T.
686— Eve, J.
Life Interest — Remainder to Class — Gift
over to "Survivors" — Survivorship Ascer-
tained at Death of Tenant for Life.] — A
testator gave his residuary estate to his widow
for life and then to be divided equally between
his children. After the testimonium, and
before his signature, he added a clause direct-
ing that in case of the death of one or more
of his childi-en their equal share or shares
were to be divided between the survivors :■ —
Held, that the survivorship must be referred
to the period of division — namely, the death
of the tenant for life — and that a child who
predeceased the tenant for life took nothing
under the gift. Cripps v. Wolcott (4Madd. 11)
followed. Poultney, In re: Poultney v.
Potiltney, 81 L. J. Ch. 748; [1912] 2 Ch. 541;
107 L. T. 1; 56 S. J. 667— C. A.
" Witli benefit of survivorship in the same
family."] — Gift, after an estate for life, to
A, B, and C, who was the daughter of B,
" in equal shares, with benefit of survivor-
ship, in the same family." A and B died
before the tenant for life : — Held, that the
words " in the same family " confined the
" benefit of survivorship " to B and her
daughter C, and accordingly the estate of A
took one-third and C took the remaining
two-thirds. The principle of Crawhall's Will
Trusts, In re (8 De G. M. & G. 480), applied.
Sadler, In re; Furniss v. Cooper, 60 S. J. 89
— Joyce, J.
5. Distribution per Stirpes or per Capita.
See also Vol. XV. 987. 2041.
Gift of Moiety "to the children of A
and B" — Mode of Division.] — A testatrix
gave a moiety of her residuary estate, subject
to a life tenancy, "to be divided equally
between the unmarried daughters of my
brother-in-law" A and B "equally." At the
date of her will and death A had three un-
married and two married daughters. B, to
whom the testatrix gave a legacy of 500Z. " in
recognition of friendship and his many kind-
nesses," had one daughter only, aged about
four years ; and at the same date the testatrix
was aged about sixty-three years, and the
tenant for life about seventy-four years :—
Held, that B himself, and not his unmarried
daughters, was the second legatee; but that
the division ought to be in equal fourth shares
between him and the unmarried daughters
of A, and not in moieties. Walbran, In re;
Milner v. Walbran (75 L. J. Ch. 105 ; [1906]
1 Ch. 64), followed on the first point, but not
followed on the second point. Harper, In re;
Plowman v. Harper, 83 L. J. Ch. 157; [1914]
1 Ch. 70; 109 L. T. 925; 58 S. J. 120—
Sargant, J.
Determination of Stirpes.]- — See Bering, In
re, ante, col. 1783.
6. Death without Having or Leaving Issue.
See also Vol. XV. 1012, 1092, 2042.
"Die without having had any male issue"
— To what Period Referable.] — A Hindu made
a will leaving all his property to his two sons
and directed that " should either of these two
sons die without having had (leaving) any
male issue, the survivor of the said two sons
is duly to take the whole of the property apper-
taining to the share of the deceased son." On
the death of the testator in 1901 he left two
sons surviving him. One of these sons died
in 1903 leaving no male issue : — Held, that
the other surviving son was entitled to the
1793
WILL.
1794
whole of the estate conveyed by the above
clause. Chunilal Parvatishankar v. Bat
Samrath, 30 T. L. E. 407— P. C.
"Die without issue" — Yested Estate in
Possession — Gift Over.] — A testator devised
his real estate, which consisted of three farms,
as to one moiety to his son and as to the
other moiety to his widow and two daughters
in equal shares. Later in the will he directed
that if the son should " die without issue "
prior to the death of his mother or his sisters
the whole estate was to go to the widow and
daughters. The son survived his mother and
died in the lifetime of his sisters, leaving
issue : — Held, that the words " die without
issue " meant without leaving issue him sur-
viving, and not an indefinite failure of issue,
and that therefore the gift over did not take
effect. Crowder v. Stone (7 L. J. (o.s.) Ch.
93; 3 Russ. 217) and Jarman v. Vye (35 L. J.
Ch. 821; L. E. 2 Eq. 784) distinguished.
Dunn V. Morgan, 84 L. J. Ch. 812 ; 113 L. T.
444— Eve, J.
7. Settled Shares and Substitutional and
Alternative Gifts.
See also Vol. XV. 1050, 2045.
Legacy — Condition as to Priority —
Subsequent Codicil — Settled Legacy Sub-
stituted.] — The rule of construction that,
prima facie, a substituted legacy is subject to
the same conditions as an original legacy, is
not confined to cases where the only change
introduced is one of amount, but may some-
times apply to cases where the legatee, under
the substituted gift, is a different person from
the original legatee. Leacroft v. Maynard;
Pearson v. Leacroft (1 Yes. 279; 3 Bro. C.C.
233), followed. Joseph, In re; Pain v. Joseph
m L. .J. Ch. 882; [1908] 2 Ch. 507), dis-
tinguished. Backliouse, In re; Salmon v.
Backhouse, 60 S. J. 121— Sargant, J.
Words of Futurity— Gift to Children of Sons
and Daughters who " shall die in my life-
time" — Son Dead at Date of Will Leaving
Children.] — A will contained a gift of residue
in trust for all the children of the testator
living at his death who should attain twenty-
one, or being daughters should attain that age
or marry, in equal shares, with a proviso
" that if any child of me shall die in my life-
time leaving a child or children who shall
survive me and being a son or sons shall attain
the age of twenty-one years, or being a
daughter or daughters shall attain that age or
marry, then and in such case the last men-
tioned child or children shall take " their
parent's share. To the knowledge of the
testator one of his sons had died before the
date of the will, leaving two children (to whom
the testator hud given a legacy in an earlier
part of his will) : — Held, that they were con-
tingently entitled on attaining twenty-one or
on marriage to share in the residue. Williams,
In re; Metcalf v. Williams, 83 L. J. Ch. 670;
[1914] 2 Ch. 61; 110 L. T. 923; 58 S. J. 470
— C.A.
Decision of Sargant, J. (83 L. J. Ch. 255;
[1914] 1 Ch. 219), affirmed. lb.
Loring v. Thomas (30 L. J. Ch. 789; 1 Dr.
& Sm. 497), Barraclough v. Cooper (77 L. J.
Ch. 555n. ; [1908] 2 Ch. 121n.), Lambert,
In re; Corns v. Harrison (77 L. J. Ch. 553;
[1908] 2 Ch. 117), and Metcalfe, In re; Met-
calfe V. Earle (78 L. J. Ch. 303; [1909] 1 Ch.
424), followed. lb.
Christopherson v. Naylor (1 Mer. 320),
Gorringe v. Mahlstedt (76 L. J. Ch. 527;
[1907] A.C. 225), Musther, In re; Groves v.
Musther (59 L. J. Ch. 296; 43 Ch. D. 569),
and Cope, In re; Cross v. Cross (77 L. J. Ch.
558; [1908] 2 Ch. 1), distinguished. lb.
Gift of Income to Children in Equal Shares
During their Lives — Substitution of Issue for
Deceased Parent — Implication of Cross-
remainders.] — A testator gave certain real
estate on trust to pay the income arising there-
from to his children in equal shares during
their lives, or to their issue in case any of them
should die before the others of them, and from
and after the decease of all his children on
trust for sale and division of the proceeds
between his grandchildren in equal shares per
stirpes. He left three children, one of whom,
F., had died without issue, and another, E.,
had died leaving one daughter : — Held, that
cross-remainders must be implied between the
cldldren on the principle of Armstrong v.
Eldridge (3 Bro. C.C. 215) and Pearce v. Ed-
meades (8 L. J. Ex. Eq. 61 ; 3 Y. & C. 246),
the provision substituting issue for a deceased
parent not affecting the application of the
principle ; and that the one-third share of the
income to which F. had been entitled was
therefore devisible, during the life of the sur-
viving child of the testator, equally between
that child and the daughter of E. Tate, In re ;
Williamson v. Gilpin, 83 L. J. Ch. 593;
[1914] 2 Ch. 182; 109 L. T. 621; 58 S. J. 119
— Sargant, J.
Gift to Brother or Sister Dying before Testa-
trix Leaving Issue Surviving Her — Bequest to
Dead Person — Validity.^ — A testatrix, under a
general power to appoint a trust fund, sub-
ject to her husband's life interest, appointed
it by will in 1881 to her brother and four
sisters by name " or such of them as shall be
living at the decease of the survivor of myself
and my said husband, provided always that if
my said brother and sisters or either of them
shall die in my lifetime or in the lifetime of
my said husband leaving issue who shall be
living at the decease of " such survivor, " then
the appointment . . . shall take effect as if
my said Ijrothers or sisters respectively had
died immediately after the death of " such
survivor. Testatrix died in 1900, and her
husband in 1909, a sister, F., having died in
1893 leaving issue who survived both : — Held,
that in her case the gift was one to a dead
person, that it was an attempt to apply the
language of the Wills Act, 1837, to a case
where it was not applicable, and that the
estate of F. was not entitled to share in the
distribution. Gresley, In re; Willouqhby v.
Drumwoyid, 80 L. J. Ch. 255; [1911] 1 Ch.
358; 104 L. T. 244— Swinfen Eady, J.
57
1795
WILL.
1796
Gift to Brother and Nephew — Legatee Pre-
deceasing Testatrix — Provision against Lapse
— Gift to Take Effect as if Legatee had
Survived Testatrix — Substitutionary Gift.] —
A testatrix by her will made in 1897 gave her
residuary estate to trustees upon trust for sale
and conversion, and to pay four seventeenth
parts of the proceeds to her brother B. abso-
lutely, two seventeenth parts to her brother J.
absolutely, one seventeenth part to her niece
A. absolutely, two seventeenth parts to her
nephew J. B. absolutely, and the remaining
seventeenth parts to various other legatees.
After providing for the event of any of the
said four legatees dying in her lifetime with-
out leaving issue, the will contained the fol-
lowing clause : "I declare that if any of
them my said brothers B. and J., my niece
A. and my said nephew J. S. shall die in
my lifetime leaving issue, and any of such
issue shall be living at my death the benefits
hereinbefore given to him or her so dying
shall not lapse but shall take effect as if his
or her death had happened immediately after
mine." The testatrix died on October 22,
1910. Both her brother J. and her nephew
J. S. died in her lifetime, and each of them
left issue who survived the testatrix : — Held,
that the shares of J. and J. S. did not lapse
as undisposed of, but went to their respective
legal personal representatives as parts of
their respective personal estates. Greenwood,
In re; Greenwood v. Sutcliffe, 81 L. J. Ch.
298 ; [1912] 1 Ch. 392 ; 106 L. T. 424 ; 56 S. J.
443— Parker, J.
Clunies-Ross, In re; Stubbings v. Clunies-
Ross (infra), followed. Gresley, In re; Wil-
louqhbij V. Drummond (80 L. J. Ch. 255;
[1911] 1 Ch. 3.58), and Scott, In re (70 L. J.
K.B. 66; [1901] 1 K.B. 228), distinguished.
lb.
Class — Children and Collaterals — Gift to
Include Persons who Predecease Testator
Leaving Issue at his Death — Niece Dying
before Testator — Valid Gift to Personal Repre-
sentatives.] — A testator bequeathed and
devised his residuary estate to trustees upon
trust to convert the same, and after making
certain payments to divide the residue among
all his children, both sons and daughters, and
his niece, E. C. R., in equal shares as tenants
in common, the said niece and children to form
one class together taking in equal shares, and
in case any one of the said residuary legatees
might die in the testator's lifetime leaving
any issue who should be living at the testa-
tor's death, then and in such case the gift of
a share of residue in favour of such residuary
legatee should take effect in the same manner
as if such residuary legatee had survived the
testator and died immediately after his death.
The niece died in the lifetime of the testator,
leaving issue who were living at the testator's
death : — Held, that under the will there was
a good gift of the share of the deceased niece
to her legal personal representative as part
of her estate. Gresley, In re; WillougJtby v.
Drummond (80 L. J.' Ch. 255; [1911] 1 Ch.
358), not followed. Clunies-Ross, In re;
Stubbings v. Clunies-Ross, 106 L. T. 96;
56 S. J. 252— Joyce, J.
8. Gifts Over.
See also Vol. XV. 1090, 2050.
Executory Devise over on a Contingency —
Restricted to Time Prior to Period of Dis-
tribution.]— In a will, where there is a period
of distribution, a gift over on death means
death before the period of distribution. Kerr's
Estate, In re, [1913] 1 Ir. R. 214— Ross, J.
" Other and others."] — Under a gift, in the
event of a daughter dying without being mar-
ried, to the other and others of the testator's
daughters by name in equal shares, the words
" other and others " will not be read as
" survivor and survivors " unless the context
requires it. Stanley v. Bond, [1913] 1 Ir. R.
170— M.R.
9. Acceleration of Interests.
See also Vol. XV. 1113, 2051.
Gift of Income of Fund to "Widow until
Re-marriage — Gift of Fund on Her Death —
Re-marriage of Widow.] — A testator directed
his executors to pay to his wife the income of
a fund of 1,000Z. so long as she remained
unmarried, and on her re-marriage to pay her
300L out of the fund. On the widow's death
he directed " the money funded for her use "
to be divided among the eldest sons of the
testator's brother and sisters " then living,"
and mentioned in the will. The widow re-
married : — Held, that, upon the determination
of the widow's interest in the fund by her
re-marriage, there was an acceleration of the
subsequent interests, and also an acceleration
of the time of ascertainment of the class of
donees. Johnson, In re (68 L. T. 20), applied.
Crothers' Trusts, In re, [1915] 1 Ir. R. 53—
Barton, J.
Attestation by Legatee — Gift over,] — A
testator made a bequest of chattels real to T.
with a gift over in the event of his dying
without issue to J. and K. T. attested the
execution of the will, so that the bequest to
him became void. He was alive and un-
married. There was no residuary gift in the
will : — Held, that the gift over to J. and K.
was not accelerated, and that it was only in
the event of the death of T. without issue
that they would be entitled to the chattels real.
Kearney v. Kearney, [1911] 1 Ir. R. 137— C.A.
F. Bequests and Devises.
1. Words of.
a. What Property will Pass by Particular
Words and Description.
i. Particular Words.
See also Vol. XV. 1120, 2052.
Large Emerald Ring.] — Where a testator
bequeathed to a lady " a ring with a large
emerald " and his jewellery included a single-
stone emerald man's ring and a lady's ring
containing a large emerald and two small
diamonds, — Held, that the latter ring was the
1797
WILL.
1798
one referred to by the will. Scott, In re;
Scott V. Scott (No. 1), 30 T. L. R. 345—
Warrington, J.
"Books" — Whether Manuscript Log-book
Included. 1 — The manuscript log-book of
H.M.S. Victory held to pass under a bequest
to ■' one-half of all the rest of ray books " to
each of the testator's two sons. Barratt,
In re; Barratt v. Coates, 31 T. L. R. 502—
C A
Decision of Warrington, J. (31 T. L. R. 71),
affirmed. 7b.
"Contents of house" — Objects of Art —
Furniture — Decorations — Articles Removable
by Tenant.] — A testator by his will, after
defining " ordinary furniture " as including
carpets, curtains, articles of ornament of an
ordinary kind, household crockery, &c., but
excluding sculptures, pictures, objects of art
or antiques, whether furniture or otherwise,
devised and bequeathed his real and personal
estate to trustees upon trust for sale, and to
pay to his wife a sum equal to 10 per cent, of
the net proceeds of sale of such of the contents
of his house as were not included in the expres-
sion ■' ordinary furniture." At the time of his
death the testator had a leasehold house : —
Held, that the expression "contents of my
house " included everything that could, as
between landlord and tenant, be removed by
the testator from the house, including
panellings, mantelpieces, painted ceilings, &c.
Oppenheim, In re; Oppenheim v. Oppenheim,
111 L. T. 937; 58 S. J. 723— Joyce, J.
" All my furniture and household effects at
present at Aubrey Lodge " — Motor Car in Out-
building.]— Where a testator by his will gave
all his furniture and household effects " at
present at Aubrey Lodge " to A, and gave his
books, family letters, and relics " at present at
Aubrey Lodge " to B, and there was a motor
car in an outbuilding at Aubrey Lodge which
it was stated had been purchased subsequently
to the date of the will. — Held, that the motor
car passed under the gift to A. Home, In re;
Ferniehough v. Wilkinson ([1908] W. N. 223),
followed. Hall, In re; Watson v. Hall
(56 S. J. 615; 28 T. L. R. 480), distinguished.
Ashburnham, In re; Gaby v. Ashburnham,
107 L. T. 601; 57 S. J. 28— Swinfen Eady, J.
"Household effects" — "Contents of dwell-
ing house" — Cash — Jewellery.] — A testatrix
by her will specifically devised certain jewellery
and gave her residue on trust for her nephews
and nieces and their children. By a codicil
she devised her dwelling house. No. 13
Esplanade, and bequeathed all her " furniture,
plate, linen, china, glass, books, pictures, and
household effects of every description, and all
other the contents of the said dwelling house
except any articles I may have bequeathed by
my said will " to her nephew W. At the
testatrix's death the contents included (a) cer-
tain jewellery, (b) iOl. in Bank of England
notes and cash, (c) other jewellery, and (d)
50/. in Bank of England notes had been
deposited in the bank during testatrix's illness
without her instructions, although she was
subsequently told it had been done : — Held.
first, that everything in the house passed by
the bequest; secondly, that the jewellery
deposited at the bank was notionally in the
house; and thirdly, that the 50Z. had become
part of the testatrix's current account and did
not pass. Lea, In re; Wells v. Holt,
104 L. T. 253— Swinfen Eady, J.
" House and land now in the occupation
of R."— Extra Piece of Land.]— A gift by a
testator of the net income from " a house and
land known as No. 41 S Street, now in
the occupation of R." : — Held, to include the
income arising from a piece of land at the
rear of No. 41, not originally occupied with
the premises, but leased twelve years ago by
the testator, together with No. 41, to R.
Fuller, In re; Arnold v. Chandler, 59 S. J.
304— Neville, J.
Gift of " Carriages, horses, harness, and
stable furniture and effects" — Motor Car.] —
The testator by his will made the following
bequest : " I give to my said wife absolutely
all my carriages, horses, harness, and stable
furniture and effects." At the time of his
death the testator was the owner of a motor
car, and there was evidence that about the
time he purchased it he sold his horses and
carriages except one horse and two carriages,
having formerly kept three or four horses and
several carriages : — Held, that, having regard
to the collocation of the word " carriages,"
the testator only meant to give to his wife
such carriages as were used in connection with
horses, and therefore that the motor car did
not pass bv the bequest. Hall, In re; Watson
V. Hall, '107 L. T. 196; 56 S. J. 615;
28 T. L. R. 480— Parker, J.
Works of Art — Tapestries Affixed to Walls
of House.] — Tapestries affixed to the walls of
a house by placing a silk damask hanging
over a white cloth lining and by sewing the
tapestries to the silk damask hanging will
pass under a bequest of the testator's " works
of art," and do not form part of the house
so as to be a part of the residuarv estate.
Scott, In re; Scott v. Scott (No. 1), SOT. L. R.
345 — Warrington, J.
Meaning of " Money " — Legacy of "10 per
cent, of my money."] — A testator gave 10 per
cent, of his money in charity, and bequeathed
the rest of his property to his children, share
and share alike : — Held, that " money " in-
cluded, besides money at the testator's call.
Consols, stocks that could be immediately
turned into cash, and arrears of rent of real
and personal estate belonging to the testator,
but not capital sums secured by mortgages.
O'Connor v. O'Connor, [1911] 1 Ir. R. 263
— C.A.
Bequest of "Moneys" at the Post-Office
Savings Bank — Holding of Consols at same
Bank — Consols not Included under "Money."
— A testatrix having referred to " any money
which may at the time of my decease be
standing to my credit at the . . . Post-Office
Savings Bank," bequeathed " the residue of
such moneys." The testatrix had a balance
in cash and also a holding of Consols which
1799
WILL.
1800
had been purchased for her through the
Bank : — Held, that the Consols did not pass
under the gift. Adkins, In re; Solomon v.
Catchpole (98 L. T. 667), distinguished.
Mayin, In re ; Ford v. Ward, 81 L. J. Ch. 217 :
[1912] 1 Ch. 388; 106 L. T. 64; 56 S. J. 272
—Neville, J.
"Cash in house " — Post-Office Money Orders
— "Consols " — Two-and-a-Half per Cent. An-
nuities — " Savings Bank deposits " — Local
Loans Stock.] — By his will the testator pro-
vided as follows : " I leave to my wife . . .
all cash in house. ... I leave to my wife
and my daughter M. F. W. in equal shares
all cash in bank, consols, shares, and savings
bank deposits. ..." The testator never had
any Two-and-a-Half per Cent. Consolidated
Stock, but he had Two-and-a-Half per Cent.
Annuities : — Held, first, that Post-Office money
orders passed under the bequest of " cash in the
house"; secondly, that the term "Consols"
was not used in the strictly technical sense,
but was used as meaning Government Stocks,
and therefore that it covered the Two-and-a-
Half per Cent. Annuities: and thirdly, that
300L Local Loans Stock standing in the
testator's name in the stock register of the
Post-OfiSce Savings Bank passed under the
bequest " savings bank deposits." Windsor,
In re; Public Trustee v. Windsor, 108 L. T.
947; 57 S. J. 555; 29 T. L. K. 562—
Warrington, J.
"Ready money" — Money on Deposit —
Course of Business.] — Where the evidence
shews that by the course of business between
the testatrix and her banker, money on
deposit at her bank was frequently drawn upon
by the testatrix, and such drawings were
always met in precisely the same manner as
drawings upon her current account, — Held,
that the gift in her will of " ready money
standing in my name or to my credit at my
bank " was effectual to pass such moneys on
the deposit account. Rodmell, In re; Safford
V. Safford, 108 L. T. 184; 57 S. J. 284—
Farwell, L..J.
" The rest of the money of which I die
possessed " — Freehold House Subject to Power
of Appointment.] — A testatrix who had a
general power of appointment over a freehold
house, which she did not exercise, gave " the
rest of the money of which I die possessed "
to Truro Cathedral -.—Held, that the freehold
house did not pass under the bequest of " the
rest of the money of which I die possessed."
Tribe, hi re; Tribe v. Truro Cathedral (Dean
and Chapter), 85 L. J. Ch. 79; 113 L. T. 313;
59 S. J. 509— Eve, J.
"The rest of my money" — "Anything
belonging to me which I have not devised "
— Reversionary Interest — Evidence as to State
of Testator's Property — Admissibility .1 — A
testator, being entitled to a reversionary
interest in a share of residue, by his will gave
a pecuniary legacy to a charity, and proceeded :
" The rest of my money I leave in equal shares
to my brothers and sisters "; and after giving
various other legacies, concluded : " Anything
belonging to me which I have not devised I
leave to my father and mother, if they are not
living I leave them to my sisters " : — Held,
that the last-named bequest was not a true
residuary bequest, and that the reversionary
interest passed under the gift of " the rest
of my money." Capel, In re; Arbuthnot v.
Capel, 59 S. J. 177— Eve, J.
Bequest of 100 IL Shares — Subsequent Con-
version into 1,000 Shares of 2s. each — Ademp-
tion.]— A testator bequeathed " my 100 shares
in the Palatine Rubber Syndicate." There
was no such company, but there was a com-
pany called the Pataling Rubber Syndicate,
in which the testator held at the date of his
will 100 11. shares, each of which was by
special resolution of the company subsequently
subdivided into ten shares of 2s. each : — Held,
that the 1,000 shares of 2s. each passed under
the bequest. Greenberry, In re; Hops v.
Daniell, 55 S. J. 633— Eve, J.
" My one hundred and seventy pounds "
Stock — Bonus Shares.] — A testatrix be-
queathed to A., B., and C, " my one hundred
and seventy pounds G. & Co. Ordinary
Stock." Between the date of the will and
of her death a bonus of one new share for
each original share was distributed to the
shareholders of G. & Co. and converted into
stock. The result of this distribution was to
reduce the stock in G. & Co. to half its original
value, so that the holding of 340Z. stock, con-
sisting of her original shares and of the bonus,
of which the testatrix died possessed, was
worth no more than her original holding of
170Z. stock would have been : — Held, that the
SiOl. stock passed under the bequest of " my
one hundred and seventy pounds stock."
Paris, In re; Goddard v. Overend, [1911]
1 Jr. R. 165— M.R.
Whether Interest Passes on Bequest of
Charge.] — A testatrix made a bequest in the
following terms : "As to the charge affecting
the D. estate ... of which only 1,0001. is
disposable under the terms of my marriage
settlement, I direct that my executor shall
hold it in trust " for certain persons in certain
shares, which she thereby declared. Under
her marriage settlement she had power to
dispose of a sum of 1,000L, part of a charge
of 1,500L : — Held, that interest due to the
testatrix at her death upon the charge did
not pass to the legatees under the terms of
the bequest. lb.
A testatrix devised and bequeathed to G.,
E., and F. her two mortgages for 1,0002.
and 900/. respectively then affecting certain
estates, for their own use absolutely in equal
shares, share and share alike : — Held, that
interest due to the testatrix under the two
mortgages at her death passed with the prin-
cipal to the legatees. lb.
Gift of all " Securities standing in my name
at my decease" — Bearer Bonds Kept by
Bankers — Entry under Testatrix's Name in
Safe Custody Register of Bank.] — A testatrix
made a specific bequest of " all the stocks,
shares, debentures, debenture stock, and other
securities which shall be standing in my name
at my decease." She was possessed of two
1801
WILL.
1802
bearer bonds which she had purchased some
years previously through her bankers. The
latter had since kept them on her behalf in
an envelope bearing her name and a reference
to the " safe custody register " of the bank,
which contained an entry under her name
relating to the bonds : — Held, that " securities
standing in my name " meant moneys repre-
sented by securities taken in the testatrix's
name, not documents kept under her name ;
and that the bonds therefore did not pass
under the specific bequest. Mayne, In re;
Stoneman v. Woods, 83 L. J. Ch. 815; [1914]
2 Ch. 115; 58 S. .T. 579— Warrington, J.
"Shares" in Company — Shares in Trust and
Debenture — " Inyestments in " — " Preference
shares" — " 500L debentures" — Whether
Debenture and Debenture Stock Passed to
Specific Legatees.] — J. C. bequeathed his
shares in J. W. & T. Connolly (South Africa),
Lim., to various legatees; (2) to his trustees
his investments in the Associated Omnibus
Co., consisting of preference shares and
ordinary shares ; and (3) his investments in
Barclay, Perkins, Lim., consisting of 500i.
debentures and 500L ordinary shares. The
testator held 500 ordinary shares in J. W. & T.
Connolly (South Africa), Lim., as trustee, and
a debenture for 2,000Z. He held 500L in
debentures and 500Z. ordinary shares in the
Associated Omnibus Co., Lim., and he also
held 200Z. mortgage debenture stock and
twenty preference shares in Barclay, Perkins
& Co., Lim. : — Held, that (1) the testator in-
tended to deal with shares and not the deben-
ture, and the debenture did not pass to the
specific legatee. Weeding, In re; Armstrong
V. Wilkin (65 L. J. Ch. 743; [1896] 2 Ch.
364), distinguished; and as to (2) and (3) that
the bequests were sufiiciently wide to include
the debentures and debenture stock notwith-
standing the appended inaccurate description.
Connolly, In re; Walton v. Connolly, 110 L. T.
688— Eve, J.
" Current dividends " — Shares in Company
— Apportionment.] — The will of a testator,
who died on January 9, 1914, contained gifts
of certain shares in a limited company,
together with the then " current dividends "
thereon. The dividend on the shares for the
year ending on December 31, 1913, was, in
accordance with the practice of the company,
declared at the ordinary general meeting of
the company held on February 10, 1914 : —
Held, that the meaning of the words " current
dividends " in this will was explained in a
subsequent part of the clause containing the
bequest, and that the dividend declared on
February 10, 1914, was a " current dividend "
passing with the specific gifts of the shares.
Raven, In re ; Spencer v. Raven, 111 L. T. 938
— Joyce, J.
Bequest of Shares or of Money to Buy
Shares.] — Where a testator bequeaths a
certain number of shares in a private com-
pany, and the will provides that if the legatee
should by the articles be restricted from taking
the shares in any other way than by buying
them, then tlie bequest shall be an alternative
one of money for the purchase of a like hold-
ing, the fact that the legatee is so restricted
operates to make the bequest the alternative
one of money to buy the shares. White, In re ;
Theobald v. White, 82 L. J. Ch. 149; [1913]
1 Ch. 231; 108 L. T. 319; 57 S. J. 212—
Neville, J.
" Business and plant " at D. Street — Book
Debts — Bank Balance.] — A testator be-
queathed his business and plant at D. Street
to X. , his brother, and Y. , his manager, in equal
parts, and the will proceeded : "I will that
they pay Miss A. lOZ. per week during her
life " : — -Held, that the effect of the bequest
was to give the house, bank balance, and book
debts to the legatees, and that they were
l)ound to pay the lOZ. per week out of the
assets, but were not personally liable.
Hawkins, In re; Hawkins v. /Irgent, 109L. T.
969— Astbury, J.
Gift of " net profits in all my commercial
undertakings" — Effect — Shares and Deben-
tures of Companies — Share in Partnership.] —
The rule that a gift, unlimited in time, of the
income of a fund is a gift of the fund itself
applies to shares in a limited company, but
not to a share in a partnership. Lawes-
Wittenronge, In re; Maurice v. Bennett,
84 L. J. Ch. 472 ; [1915] 1 Ch. 408 ; 112 L. T.
931 — Warrington, J.
A testator, who held shares in companies
and debentures issued by them as security for
loans from him, and was also a partner in a
commercial firm, made a gift of "one-fifth
share of the net profits in all my commercial
undertakings, being " the companies and firm
in question : — Held, that the legatee was
entitled to one-fifth of the shares, though not
to any debentures ; but that as regarded the
partnership he was only entitled to receive
one-fifth of the net profits which would other-
wise have been paid to the executors of the
testator, so long as the partnership business
was carried on. lb.
"Pensions or allowances" — Whether
Voluntary Payments Included.]— A testator
had from 1870 until his death in 1890 given
an annual subscription, at first of 50Z. and
afterwards of 100/., to a county infirmary,
and he had also from 1850 until his death
made an annual payment of 67L to a cathedral
vestry for the upkeep of the organ and the
choir. The testator's estate book contained
these payments under the heading "Donations
and Subscriptions," but it contained no
heading "Pensions and Allowances." The
testator devised the estates to his widow,
" subject to the payment of all pensions or
allowances then paid " -.—Held, that the
direction to pay " pensions or allowances "
did not include the above payments, as they
were purely voluntary payments or donations.
Scott, In re ; Scott v. Scott {No. 2), 31 T. L. R.
505— Neville, J.
Bequest of Debts Due at Testator's Death —
Portion Accrued During his Lifetime.] — A
testator be(|ueathed " all the debts and
accounts due to me at the time of my death,
except rents issuing out of houses and lands "
to T. : — Held, that the bequest did not include
1803
WILL.
1804
the apportioned part, accrued during the
testator's lifetime, of dividends declared after
his death in respect of the half-year in the
course of which he died. Burke, In re; Wood
V. Taijlor, [1914] 1 Ir. R. 81— Barton, J.
Herd of Deer in Park — Tenant for Life and
Remainderman.] — A testator bequeathed
certain " live and dead stock including deer "
to trustees in trust for his wife for life, and
after her decease for the persons who for the
time being should under the will be entitled
to the possession of the rents and profits of
certain real estate. At the time of the
testator's death there was a herd of tame deer
in a park which formed part of the estate. A
tenant for life under the will from time to
time purchased deer and added them to the
herd for the purpose of improving it. The
deer in the herd at the time of the testator's
death having died, — Held, upon the authority
of Maynard v. Gibson ([1876] W. N. 204),
that the herd of deer did not belong to the
tenant for life absolutely, but that she was
only entitled to their reasonable use and en-
joyment as in the case of farming stock. Held,
further, that the deer which had been added
to the herd by the tenant for life must be
taken to have been added in accordance with
her obligation to maintain the herd, and that
they therefore became subject to the trusts of
the will. White v. Paine, 83 L. J. K.B. 895;
[1914] 2 K.B. 486; 58 S. J. 381; 30 T. L. R.
347— Pick ford, J.
"Arrears of rent " Due at Death — Apportion-
ment— Gross or Net Rents.] — Bequest of all
arrears of rents due to testatrix at the time of
her death held to include the proportion of
rents for the current quarter, as apportioned
under the Apportionment Act, 1870, up to
March 4, the date of death, and to mean gross
rents without any deduction for outgoings
or otherwise. Dictum of Jessel, M.R., in
Hasluck V. Pedley (44 L. J. Ch. 143, 144;
L. R. 19 Eq. 271, 273), followed on the first
point. Ford, In re; Myers v. Molesuwrth,
80 L. J. Ch. 355 ; [1911] 1 Ch. 455 ; 104 L. T.
245— Swinfen Eady, J.
"Rent"— Tithe Rentcharge.] — Rent held
to include tithe rentcharge. lb.
Settlement — Power of Appointment — Abso-
lute Interest in Default of Appointment — Gift i
and Appointment by Will — Gift Inconsistent
with Power — Intention.]— By his marriage
settlciiu'nt a certain fund was held upon trust
for the testator's children as he should
appoint, and in default of appointment for the
testator absolutely. By his will the testator
said, " I . . . bequeath all my personal estate
and by virtue of the provisions contained in
the settlement executed upon my marriage
... I appoint the funds subject to the trusts
thereof," upon trust, after payment of debts
and expenses, for his children equally, but he
settled the daughters' shares : — Held, that the
use of the word " appoint " was not to be nar-
rowly construed, and that the will operated
as if the settled property had not been the sub-
ject of a power of appointment, but belonged
to the testator absolutely. Griffiths, In re;
Griffiths v. Waghorne, 80 L. J. Ch. 176;
[1911] 1 Ch. 246; 104 L. T. 125— Joyce, J.
Capital and Income — Will — Construction —
Leaseholds — Tenant for Life — Conversion.] —
When a testator dies possessed of freehold and
leasehold property, a gift by him to a tenant
for life of the " rents issues and profits "
arising from the real and personal estate does
not afford any sufficient indication of an inten-
tion that the leaseholds should be enjoyed by
the tenant for life in specie ; and they ought
to be treated as converted at the expiration
of a year from the testator's death in accord-
ance with the rule in Howe v. Dartmouth
(Earl) (7 Ves. 137a). Wareham, In re:
Wareham v. Brewin, 81 L. J. Ch. 578 ; [1912]
2 Ch. 312; 107 L. T. 80; 56 S. J. 613— C.A.
Craig v. Wheeler (29 L. J. Ch. 374) and
Game, In re; Game v. Young (66 L. J. Ch.
505; [1897] 1 Ch. 881), followed. Crowe v.
Crisford (17 Beav. 507), Wearing v. Wearing
(23 Beav. 99), Elmore's Will, In re (9 W. R.
66), and Vachell v. Roberts (32 Beav. 140)
overruled. lb.
Directions to Pay Legacies in " this my
will" — Free of Duty — Codicils.] — A direction
to pay legacies given by " this my will " free
of duty does not apply prima facie to every
legacy subsequently given by codicil ; and
though the direction applies to legacies given
in substitution for those in the will, and to
the same beneficiaries, yet where the codicil
gives legacies in trust, in lieu of direct, and
under the trust fresh beneficiaries are added,
these trust legacies must bear their own duty.
Trinder, In re; Sheppard v. Prince, 56 S. J.
74— Parker, J.
And see Revenue, ante, cols. 1827-1330.
ii. General Devise of Real Estate.
See also Vol. XV. 1187, 2064.
Bequest of " All to be divided in equal
parts" — "Pay to trustees" — Omission of
Word " Devise " — Real Estate Included in the
Bequest.] — A testator by his will made the
following gift : " I give and bequeath unto all
the undermentioned names all to be divided
in equal parts." The word " devise " did not
occur in the will, though the word " pay "
did : — Held, that the idea of totality con-
veyed by the word " all " outweighed not only
the omission of the word " devise," but also
the expressions which seemed to negative the
inclusion of real estate, and that consequently
the testator's realty passed under the gift.
Bowman v. Milbanke (1 Lev. 130) dis-
tinguished. Shepherd, In re; Mitchell v.
Loram, 58 S. J. 304— Eve, J.
iii. Gift of Residue.
See also Vol. XV. 1201, 2065.
Gift of Residue to Forty-six Named Persons
Equally — Codicil— Revocation of Gift of Two
Shares of Residue — No Express Disposition of
Revoked Gifts — Will Confirmed in all other
Respects — No Intestacy.] — A testator gave his
residuary estate to his trustees to be divided
equally between forty-six persons named in
1805
WILL.
1806
the will and beiug the children, or the widows
or children of deceased children, of his own
and his wife's brothers and sisters. The list
included F. W. and T. W. By a codicil the
testator revoked the gifts in favour of F. \V.
and T. W., and in all other respects con-
firmed his will : — Held, that there was no
intestacy in respect of the gifts revoked by the
codicil ; and that the whole residuary estate
was divisible amongst the remaining forty-four
persons named in the will. Whiting, In re;
Ormond v. de Launay, 82 L. J. Ch. .309;
[1913] 2 Ch. 1; 108 L. T. 629; 57 S. J.
461 — Joyce, J.
b What Worda will Pass Particular Property.
Sec also Vol. XV. 1221, 2067.
Devise of House and Premises known as
"A" — "In wliicli I now reside" — Additional
Land Purchased after Date of Will,] — A
testator devised his " house and premises
known as Ankerwyke in which I now reside "
to his wife. Between the date of his will and
his death he purchased additional land, part
of which was adjacent to the house, and a
part of which was on the opposite side of the
road, and all of which was occupied together
with the house by the testator until his death :
— Held, that all the additional land passed
under the devise. Willis, In re; Spencer v.
Willis, 81 L. J. Ch. 8; [1911] 2 Ch. 563;
105 L. T. 295; 55 S. J. .598— Eve, J.
Devise by Wrong Description — Ambiguity —
Falsa Demonstratio — "Castle Street" — Ad-
missibility of Evidence.] — A testator directed
" my two freehold cottages or tenements
known as numbers 19 and 20 Castle Street "
in T. to be sold for the benefit of his daughters.
He disposed specifically of two other houses in
T., one of them being No. 39 Castle Street.
He did not dispose of tv,'o cottages known as
Nos. 19 and 20 Thomas Street, in T., which
constituted the remainder of his real estate,
and there was no residuary devise. There
were houses in T. known as Nos. 19 and 20
Castle Street, V)ut they did not belong to the
testator : — Held, that evidence as to the real
estate possessed by the testator was admis-
sible; that the words " Castle Street " might
be rejected as falsa demonstratio; and that
Nos. 19 and 20 Thomas Street passed by tlie
devise. Mayell, In re; Foley v. Ward,
83 L. J. Ch. 40; [1913] 2 Ch. 488; 109 L. T.
40 — Warrington, J.
2. What Interest Passes.
a. Estates in Fee-simple, or in Tail,
or for Life.
i. What Words Pass the Fee-simple.
See also Vol. XV. 1272, 2071.
Gift to A. " or his issue " — Words of Limi-
tation or Substitution — Estate Tail.] — The
rules that a devise to A. " or his licirs " gives
to A. an estate in fee-simple, and that a
devise to A. " or the heirs of Iiis body " gives
to A. an estate tail, have not been altered
in modern times in the case of wills coming
into operation since the Wills Act, 1837. A
devise therefore to A. " or his issue '" gives to
A an estate tail. Gierke, hi re; Clowes v.
Gierke, 84 L. J. Ch. 807; [1915] 2 Ch. 301;
59 S. J. 667— Eve, J.
Absolute Gifts of Freeholds — Gift of Income
of Same Freeholds for Maintenance — Period
when Vesting is to Take Place — Supplying
Words — Implication to be Drawn from Pre-
vious Gifts — Ultimate Gift Inoperative.] —
Where by his will a testator bequeaths his
freeholds to his sons, and subsequently gives
all the income of the same freeholds to his
wife for the maintenance of his children, and
declares that if his wife should die before his
youngest child shall have attained twenty-one
the property is not to be divided until such
youngest child has attained twenty-one, and
then proceeds as follows : " And in case that
my children should all die and leaving no
issue, I give the property share and share
alike to my nephews and nieces then surviv-
ing,"— Held, that on the death of the wife
leaving two unmarried children her surviv-
ing, such two children took their respective
shares of the testator's freeholds absolutely,
since, on the construction of the whole will,
the gift over was not intended to take effect
unless all the children died in the lifetime of
their mother. Mitchell, In re; Mitchell v.
Mitchell, 108 L. T. 180; 57 S. J. 339—
Farwell, L.J.
Gift of Income to Son until Bankruptcy —
Gift over on Death of Son " should he die
without leaving a male heir" — Determinable
Equitable Estate in Fee-simple.] — A testator,
by his will, devised " the Manor or Lordship
of Martock . . . and all other my freehold
. . . messuages . . . upon trust to pay the
rents produce and annual income arising
therefrom . . . unto my nephew K. L., until
he shall assign charge or otherwise dispose of
the same or some part thereof or become
bankrupt or compound or make any arrange-
ment with his creditors, borrow money, or do
something whereby the said annual income
or some part thereof would become payable to
or vested in some other person which of the
said events shall first happen and if the trusts
hereinafter declared shall determine in the
lifetime of the said R. L. to accumulate at
compound interest for the benefit of the male
heir of his body till he attains the age of
twenty-one years and should he die without
leaving a male heir then I direct my trustees
to apply the annual income to my nephews
W. B. L., F. J. L., and H. D. L. and the
respective male heirs of their bodies succes-
sively " : — Held, that R. Tj. took an equitable
estate in fee-simple determinable in the event
of his assigning, charging, or becoming
bankrupt, which estate, if he died without
assigning, charging, or becoming bankrujit,
&c., became an ordinary estate in fee-simple,
but subject to the executory limitation over
to the testator's nephews in the event of
R. L. dying without leaving -any male heir of
his body at the time of his decease. Leach.
In re; Leach v. Leach, 81 L. J. Ch. 683;
1807
WILL.
1808
[1912] 2 Ch. 422; 106 L. T. 1003; 56 S. J.
649 — Joyce, J.
Estate Tail or Estate in Fee-simple.] — A
testator by his will left real estate to trustees,
and directed " that the same shall not be
disposed of, mortgaged, or incumbered in any
way whatsoever, but shall remain for the
benefit of my wife and children free from
the control of their respective husbands and
wives, so that the same shall remain in my
family from time to time for ever hereafter;
the rents and proceeds arising out of said
property to be equally divided between my
said children," naming them, " and also to
my said wife for her life use only, and after
her death same to revert back, and her share
to be equally divided aujongst my aforesaid
children or the issue thereof respectively " : —
Held, that the children took absolute interests
in fee-simple. Gardiner d- Co. v. Dessaix,
84 L. J. P.C. 231; [1915] A.C. 1096— P.C.
ii. Limitations Creating an Estate Tail.
See also Vol. XV. 1285, 2071.
Devise to One and " his lawful eldest male
issue " — Gift Over " in default of male issue
. . . and not attaining lawful age."] — A
testator by his will made in 1848 devised fee-
simple lands to trustees " for the use of my
grandson G. . . . and his lawful eldest male
issue . . . and in default of male issue of the
said G. and not attaining lawful age, in that
case then to go to my grandsons D. and H..
in equal divisions, and their lawful heirs " :
— Held, that the words " lawful eldest male
issue " should be construed as nomeii collec-
tivum, the word " eldest " indicating the
order of succession, and accordingly that G.
took an estate in tail male. Lovelace v.
Lovelace (Cro. Eliz. 40) and Sheridan v.
O'Reilly ([1900] 1 Ir. R. 386) distinguished.
Lewis V. Puxleij (16 L. J. Ex. 216; 16 M.
& W. 733) and Doe d. Tremewen v. Permewen
(11 A. & E. 431) applied. Finlay's Estate,
III re, [1913] 1 Ir. R. 143— Wylie, J.
"Issue" Equivalent to Heirs of the Body
— Rule in Shelley's Case.] — In a devise to
V. and his issue male in succession so that
every elder son and his issue male may be
preferred to every younger son and his issue
male, and so that every such son may take an
estate for his life with remainder to his first
and every subsequent son successively accord-
ing to seniority in tail male, the word "issue"
is a word of limitation meaning heirs of the
body, and the context does not require that
it be interpreted to mean " sons." The effect
of the devise is therefore to confer an estate
in tail male on V. Keane's Estate, In re
(ri903] 1 Ir. R. 215), followed and applied.
Simcoe, In re; Vowler-Simcoe v. Vowler,
82 L. J. Ch. 270; [1913] 1 Ch. 552; 108 L. T.
891; 57 S. J. 533— Swinfcn Eady, J.
Estate Tail or Estate in Fee Simple.] —
See Gardiner d- Co. v. Dessaix, supra.
iii. Life Estates.
See also Vol. XV. 2072
Devise, whether in Fee or for Life.] — A
testator, by his will executed in 1908, be-
queathed to P. G. " the field (with his house
thereon) containing about eleven Irish acres,
subject to a rent of 11. per Irish acre to be
paid to my nephews N. M. and J. M." The
field formed part of the farm of M. which
was held by the testator in fee-simple, and
was devised to N. M. and J. M. in these
words : " I leave, devise and bequeath to my
two nephews N. M. and J. M. my house and
farm at M. (subject to the tenancy herein-
before bequeathed to P. G.) " : — Held, that
the description in the will of P. G.'s interest
as a " tenancy," coupled with the fact of a
rent being payable by him to N. M. and
J. M., afforded such evidence of a contrary
intention as prevented section 28 of the Wills
Act from applying, and that P. G. took only
an estate for life in the field. Gannon, In re;
S fence v. Martin, [1914] 1 Ir. R. 86— M.R.
Gift of "all my real and personal estate
whatsoever absolutely " — " Residue " to be
Divided.] — A testator gave to his wife, so
long as she remained a widow, " all my real
and personal estate whatsoever absolutely,"
and at her death, or on her re-marriage, the
" residue " thereof was to be divided between
his brothers and sisters : — Held, that the wife
took only a life estate. Dixon, In re ; Dixon
V. Dixon, 56 S. J. 445— Neville, J.
Property neither to be Mortgaged nor Sold
— Life Interest — Married Woman — Restraint
on Anticipation.] — A testator by his will
devised certain houses held under a lease for
lives renewable for ever, to M. for her sole
use, neither to be mortgaged nor sold, and
at her demise to descend to her next-of-kin,
and neither to be mortgaged nor sold as long
as the lease of the said houses should last :
— Held, that M. took only a life interest for
her separate use, with a restraint on anti-
cipation during coverture. Taylor, In re ;
Shatv V. Shaw, [1914] 1 Ir. R. Ill— Barton, J.
Absolute Gift or Estate for Life — Words
Sufficient to Pass Realty.] — A testator by his
will bequeathed his property in these terms :
" I devise and bequeath to my wife all the
property of which I am possessed, whether it
be leasehold property, stock in trade, accounts
in my books, machinery, goods of every
description, and furniture, to hold and to use
for her benefit and the benefit of any of my
children under the age of twenty-one years
until they reach that age, and if she deem
it advisable to dispose of any of the said
property she may do so at her will, and at
her death whatsoever property may remain
shall be equally divided among my children" :
— Held, that the testator's real estate passed
under the will ; and further held, that it went
to the wife for life, with a power to dispose
of it during her lifetime and then to the
children. Roberts v. Thorp, 56 S. J. 13—
Warrington, J.
1809
WILL.
1810
Devise "to every son of mine and his issue
male in succession " — Subsequent Explana-
tory Words — Estate Tail or Estate for Life —
Rule in " Shelley's Case."] — A testator
devised re;il estate " unto and to the use of
every son of mine and his issue male in
succession so that every elder son and his issue
male be preferred to every younger son and
his issue male and that my grandsons
respectively with their respective male issue
take in succession according to their respective
seniorities and so that every such son and
every such grandson who shall be begotten in
my lifetime take an estate for his life without
impeachment of waste, with remainder to his
first and every subsequent son successively
according to seniority in tail male, and that
every such grandson who shall be begotten
after my death take an estate in tail male "'
with remainders over : — Held, that the rule
in Shelley's Case (1 Co. Eep. 936) did not
apply, and that the subsequent words after the
devise to every son and his issue male in
succession, which might by itself have given
an estate in tail male to the son, must be read
as part and parcel of the devise, so as to cut
down the estate of every son and every grand-
son begotten in the testator's lifetime to an
estate for life only, with remainders to his
first and every other son in tail male.
Lawrence (Lord). In re; Lawrence v.
Lawrence, 84 L. J. Ch. 273: [1915] 1 Ch.
129; 112 L. T. 195; 59 S. J. 127— C.A.
b. Vested, Contiyjgent and Future Interests.
See also Vol. XIV. 1507, 2283.
Court Aids Vesting rather than Divesting —
Power of the Court to Read Words into Will.]
— A testator gave real property in trust for his
granddaughter Emily, with remainder to her
children upon attaining twenty-one, and with
remainder over in favour of another grand-
child, Esther, and her children. He gave
other property to Esther, with remainder to
her children, but without specifying that they
should attain any age, and with a similar
gift over in favour of Emily and her children.
The wording of the will pointed to an intention
of the testator to make both gifts identical,
reference being made to children of Esther
" capable of taking," and to their shares
vesting at the same age " : — Held, that the
Court could not supply words in a will, par-
ticularly to prevent vesting, and that a daughter
of Esther who died an infant had taken a
vested interest. Litchfield, In re: Horton v.
Jonrs, 104 L. T. 031 -Parker, J.
Contingent and Vested Remainders — Real
Estate — Devise in Strict Settlement — Dis-
claimer of Life Estate — Acceleration.]^ — A
testator devised certain real estate to his eldest
son, J. S., for life, with remainder to the first
and other sons of J. S. successively in tail
male, with remainder to the testator's grand-
son, \V. S. (the son of the testator's second
son) for life, with remainder to the first and
other sons of W. S. successively in tail male,
with remaind( rs over. Upon the death of the
testator, J. S., who was married, but had no
male issue, disclaimed the life estate given
him by the testator's will : — Held, that the
disclaimer by J. S. did not operate so as to
cause an acceleration of the life estate of
W. S., but that during the remainder of the
life of J. S. or until the birth of issue male
to him the estates were undisposed of by the
devise, and passed during such period under
the residuary devise contained in the will.
Carrick v. Errington (2 P. Wms. 361;
afiirmed by the House of Lords, sub nom.
Errington v. Carrick, 5 Bro. P.C. 391),
applied. Scott, In re; Scott v. Scott, 80 L. J.
Ch. 750; [1911] 2 Ch. 374; 105 L. T. 577—
Warrington, J.
Direction to Pay Income of Legacy for
Three Years after Death to A., Followed by
Bequests of Legacies — Death of Legatee
within the Three Years.] — A trust to sell and
pay the annual income arising from such sale
to A, during the three years immediately
following the testator's death, and from and
after the determination of such three years
upon trust to pay out of the capital of the said
trust fund legacies to B, C, and D, gives B
a vested interest in his legacy immediately
on the death of the testator. Such a legacy
does not lapse by reason of B dying before the
expiration of three years from the testator's
death. Boam, In re; Shorthouse v. Annibal,
56 S. J. 142— Swinfen Eady, J.
" Distribute " — Time of Vesting — Defeas-
ance.]— A direction to distribute on the death
of a tenant for life, followed by a proviso that
in the event of the death of all objects to
whom such distribution is to be made without
descendants, there is to be a gift over, does
not make such direction to distribute incon-
sistent with the rule in O'Mahoney v. Burdett
(44 L. J. Ch. 56n. ; L. E. 7 H.L. 388). and
accordingly the objects to whom such distri-
bution is to be made are indefeasibly entitled,
and take absolutely on the death of the tenant
for life. Mackinlay, In re; Scrimgeour v.
Mackinlay, 56 S. J. 142— Swinfen Eady, J.
Gift to Class Attaining Twenty-one —
Vesting.] — Where a fund is left to a class
contingently on their attaining twenty-one, the
eldest of the class on attaining twenty-one
takes a vested interest in possession of his
share and a contingent interest in the shares
of the other members of the class who are still
under twentv-one. Holford, In re: Holford v.
Holford (63 "L. J. Ch. 637; [1894] 3 Ch. 30),
followed. Williams' Settlement, In re ; Wil-
liams V. Williams, 80 L. J. Ch. 249; [1911]
1 Ch. 441; 104 L. T. 310; 55 S. J. 236—
Eve, J.
Gift to Son at Twenty-six — Income Charged
with other Payments — Intermediate Income
— Accumulation — Vesting.] — A testator be-
(lucathed liis shares in a certain company to
trustees upon trust out of the income to pay
certain annual sums in augmentation of the
income of his daughters and to pay his debts
and the estate duty payable at his death, and
declared that the trustees should hold one
fourth part of the shares upon trust out of
the income, subject as aforesaid to pay to
his son G. an annual sum not exceeding 3,0001.
1811
WILL.
1812
" until he shall have attained the age of
twenty-six years and when and so soon as he
shall have attained the said age of twenty-six
years my trustees shall hold such last-men-
tioned one fourth part of my said shares and
the accumulations of income arising there-
from but subject as aforesaid in trust for my
said son G. absolutely." There was no gift
over in the event of G. dying under twenty-
six. He survived the testator, but died at
the age of twenty-three : — Held, that there
was no severance of the one-fourth part of
the shares bequeathed from the rest of the
estate, that the interest of G. therein was
contingent upon his attaining twenty-six, and
that as he died under age it fell into the
residuary estate. Nunburnholme (Baron),
In re; Wilson v. Nunburnholme, 81 L. J. Ch.
347 ; [1912] 1 Ch. 489 ; 106 L. T. 361 ; 56 S. J.
343— C. A.
Per Buckley, L.J. : \Yhere by a will a
specific gift is made to trustees upon trusts
for A when and so soon as he shall attain a
named age and the gift is to be immediately
separated from the rest of the property and
the income is at once given to the beneficiary
or the income is to be accumulated for the
benefit of the beneficiary, and when and so
soon as he attains the named age the corpus
and the accumulations are given to him with
no gift over, then the Court ceases to regard
the gift as a contingent gift and holds it to be
a vested gift. lb.
Decision of Neville, J. (81 L. J. Ch. 85;
[1911] 2 Ch. 510), reversed. lb.
Gift in Remainder to Children as a Class,
but the Whole to One Child if there should
be only One Child Living — Death of some
Children before Period of Distribution —
SurYival of more than One.] — A testator be-
queathed 4,000/. to his daugliter for life and
upon her death to her children in equal parts
if any there should be, or the whole to one if
only one child, and if there should be no
children living at her death then to the chil-
dren of his son in equal parts, or the whole to
one child if there should then be only one.
The daughter died a spinster. The son had
eleven children, of whom three died in the
lifetime of the daughter : — Held, that all the
eleven children took vested interests subject
only to be divested in an event which did not
happen — namely, one child only of the son sur-
viving the daughter. Firth, In re: Loveridge
V. Firth. 83 L. J. Ch. 901; [1914] 2 Ch. 386:
111 L. T. 332— Sargant, J.
Spencer v. BuHoch (2 Ves. Jun. 687), Pearce
V. Edmeades (8 L. J. Ex. Eq. 61 ; 3 Y. & C.
Ex, 246), Leu-is v. Templer (33 Beav. 625), and
Cooper V. Macdonald (42 L. J. Ch. 533; L. R.
16 Eq. 258) di.stinguished. The opinion of
Sir E. Sugden in Kimberley v. Tew (4 Dr.
& W. 139) and the decision in Tetnpleman v.
Warrington (13 Sim. 267) followed. 7b.
Vesting of Interest — Whether Absolute or
Subject to Defeasance." — A testator, who died
in 1913, by his will left his property to trustees
on trust to pay the funeral and testamentary
expenses and certain legacies and to pay out
of the income of the residue during the life
of his wife certain annuities to his wife and
children, and from the death of his wife the
trustees were to stand possessed of the resi-
duary trust funds in trust for all the children
in certain proportions. The will then pro-
vided : "If any child shall die in my life-
time or after my decease leaving a child or
children who shall survive me then and in
every such case such last-mentioned child or
children shall take and if more than one
equally between them the share which his or
her or their parent would have taken of and in
the residuary trust funds if such parent had
survived me." The testator was survived by
his wife and by the seven children. Some of
the children of the testator had children, and
some had not : — Held, that each of the testa-
tor's children acquired on the death of the
testator a vested interest liable to defeasance
in the event of his or her dying in the lifetime
of the testator's widow and leaving a child or
children. Ward v. Brown, 31 T. L. R. 545
— P.C.
c. Absolute Interests in Personal Estate.
See also Vol. XV. 1300, 2073.
Devise in Tail — Failure of Issue — Contrary
Intention — Absolute Interest in Chattels
Real.] — A testator, after the Wills Act, and
describing each gift as of " all my right title
and interest " therein, devised and bequeathed
real e.state to his eldest son J. and to his heirs
lawfully begotten. He also bequeathed to J.
chattels real, and declared that in case J.
should die without issue lawfully begotten the
lands devised and bequeathed to him should
revert to the testator's second son T. and his
heirs lawfully begotten. The testator be-
queathed to T. chattels real, and declared that
in case T. should die without issue lawfully
begotten the lands bequeathed to him were to
revert to J. The testator further declared that
in case J. or T. should die without issue
lawfully begotten the whole of the said lands
should be the property of the survivor or
longest liver of them, and that in case both
should die without issue the said lands should
revert to the testator's daughter R. and her
heirs lawfully begotten, and that in case J.,
T., or R. should all die without lawful issue
the lands devised and bequeathed to J. should
revert to the second son of the testator's
brother A. and to his lawful heirs, but on
failure of such issue then to the next son in
priority of age, and so on successively in
remainder, and the lands bequeathed to T.
should revert to the testator's brother B.'s
eldest son and his heirs lawfully begotten,
but on failure of such to his second or third
son by priority of ages, and so on successively
in remainder. And the testator declared it to
be his will that neither J. nor T. should sell
or dispose of any part of the said lands, but
that the same should remain the bona fide
properties of them and their heirs for ever : —
Held, by Ross, J., and by the Lord Chancellor
and Cherry, L..J., that, on the true construc-
tion of the will, the operation of section 29
of the Wills Act was excluded ; that the words
" die without issue lawfully begotten " meant
indefinite failure of issue ; and that conse-
quently under the terms of the bequests of the
1813
WILL.
1814
chattels real, which would have conferred
estates tail in real estate, J. and T. took
absolute interests in the chattels real respec-
tively bequeathed to them. Held, by Holmes,
L.J., that section 29 of the Wills Act applied
to the bequests of the chattels real, and that
J. and T. each took an absolute estate in the
chattels real bequeathed to them, with an
executory bequest to his brother in the event
of failure of issue at the time of his death,
and with a further executory bequest of all the
chattels real to K. in the event of failure of
issue of both J. and T. at the times of their
respective deaths, with a final executory be-
quest to the testator's nepliews in the event
of failure of issue of R. at the time of her
death. Weidon v. Weldon, [1911] 1 Ir. E.
177— C. A.
Legatee to Receive a Sum Monthly with
Power to Dispose by Will of any Portion
Remaining.] — A testatrix by her will pro-
vided as follows : "I will and bequeath to
my brother J. my household furniture and
the money in bank which I am entitled to
under the will of my brother T., to be given
to him at the rate of 21. per month during
his life, and should any portion be remaining
at his death he to have power to dispose of it
by will." There was no gift over : — Held.
that J. took an absolute interest, and was
entitled to payment of a sum in bank of 3171.,
which represented assets of the testatrix re-
ceived by her under the will of her brother T.
McKenna v. McCarten, [1915] 1 Ir. R. 282
— Barton, J.
d. Gifts to Benefit in a Particular Manner.
See also Vol. XV. 1324, 2077.
Gifts of Residue in Equal Shares to Named
Persons Surviving Tenant for Life — Effect of
Revocation of Shares of One or More — Gift
to a Class.] — A testator bequeathed the
residue of his property to trustees upon trust
for his sister for life, and upon her death in
trust for five persons or such of them as should
be alive at the death of the survivor of his
sister and himself, in equal shares. By a
codicil the testator revoked the gift to two of
the five legatees. All five survived the testa-
tor and his sister : — Held, that the effect of the
revocation was to augment the shares of the
other legatees. Donaldson, In re; Watson v.
Donaldson, [1915] 1 Ir. R. 63— C.A.
Gift by A. to the Personal Representatives
of B. — "As part of her personal estate" —
Insufficient Estate of B. — Taker of Personal
Estate of B. Predeceases A.) — Wlure a
testatrix gave by will to the personal represen-
tatives of her sister a sum to go as part of
the sister's personal estate, the sister having
made her will many years previously, and
the sister sliortly after the testatrix had made
her will d'wd leaving an insufficient estate,
and then the ultimate named taker of the
personal estate under the sister's will, subject
to a life interest still subsisting, died, and at
last the testatrix died : — Held, that the legal
personal representative of the ultimate taker
of the personal estate of the sister got nothing,
and the estate of the sister was relieved to
that extent subject to the life interest, but
the legatees of the sister who had abated
would have to be paid in full before the rt-si-
duary legatee of the sister took anything out
of the testatrix's estate. Long v. Atkinson
(17 Beav. 471) followed. Bosanquet, In re;
Unioin v. Petre, 85 L. J. Ch. 14; 113 L. T.
152 — Sargant, J.
Gift to Wife " for life for her own main-
tenance and the maintenance and advancement
in life " of Testator's Children— Right of Adult
Children to Maintenance during Life of
Widow.] — A testator gave all his property to
trustees upon trust to permit his wife to occupy
the mansion house during her life, and, after
payment of outgoings, to pay the net rents and
profits of the property to his wife " for life
for her own maintenance and the maintenance
and advancement in life " of his children,
and after his wife's decease in trust for his
eldest and other sons in tail male with further
remainders, and^ in the event of his wife pre-
deceasing him or dying during the minority of
his children, the testator made further pro-
vision for the maintenance and advancement
of his children until their attaining the age
of twenty-one years or marrying, and the
testator made further provision for his
younger children : — Held, that the wife took
the income subject to a trust for the main-
tenance and advancement of the children
during the mother's lifetime so long as they
should require same. K'Eogh v. K'Eogh,
[1911] 1 Ir. R. 396— Ross, J.
The children, other than the eldest son,
being provided for, the eldest son, the tenant
in tail male in remainder subject to his
mother's life interest, who had married and,
at the desire of his mother, had left the
parental home, but who was unprovided for,
issued a summons to determine what provision
should be made for him out of his mother's
income. The Court directed the enquirv asked
for. lb.
Bequest to Provide Art Gallery.] — Under
the trusts of the testator's will, — Held, that
the Court would sanction a payment of 5.000L
to the G. Corporation towards the cost of the
maintenance of an art gallery, and 25,000/. to
be expended in the erection of the gallery.
Shipley, In re ; Middleton v. Gateshead
Corporation, 77 J. P. 424— Eve, J.
e. Absolute Gifts when Cut Down.
See also Vol. XV. 1342, 2078.
Life Estate or Absolute Interest.] — A
testator bequeathed to his sister M. the sum
of 2,0OOZ. for her life, and at her death to be
disposed of as she so wished. M. died without
making any disposition of the 2,000/, : — Held.
that M. took a life interest only with a power
of appointment. Btirkitt, In re: Hancock v.
Studdert, [1915] 1 Ir. H. 205— M.R.
Life Estate to Daughter Determinable on a
Certain Event — Gift over on Happening of
Event — Non-happening of Event — Share of
Residue.] — A testator cave to his daughter the
1815
WILL.
1816
income of one-fourth share of his residuary
estate for life or until she should receive a
certain legacy left to her under the will of
her late father-in-law, in which case there
was to be a gift over. The daughter died
without having received the legacy, and there
was no prospect of her estate ever receiving
the same or any part of it : — Held, that the
daughter took a terminable life interest and
that the gift over took effect on her death
and was not limited to the happening of the
event mentioned in the will. The principle
of Luxford V. Cheeke (3 Lev. r2o), Browne
V. Hammond (Johns. 210), Etches v. Etchex
(3 Drew. 441), and Ca7ie, In re: Ruff v. Sivers
(60 L. J. Ch. 36), applied. Seaton, In re:
Ellis V. Seaton, 83 L. J. Ch. 124; [1913]
2 Ch. 614; 107 L. T. 192— Parker. J.
ProYision that Tenant for Life shall have
Power to Apply such Portion of the Capital
as he shall Think Fit for his own Use and
Benefit — General Power of Appointment Inter
YiYOS.] — A testatrix gave her estate on trust
to pay the income to her husband till he
should marry again or die, and on his death
or re-marriage on charitable trusts ; but with
a provision that he should have power, so long
as he should be entitled to the income, to
apply such portion of the capital of the estate
as he should think fit for his own use and
benefit : — Held, that the husband took a
general power of appointment over the capital
inter vivos, though not by will. Richards.
In re; Uglow v. Richards (71 L. J. Ch. 66;
[1902] 1 Ch. 76), followed. Dictum of
James, L.J., in Thomson's Estate, In re:
Herring v. Barroiv (49 L. J. Ch. 622; 14 Ch.
D. 263). not followed. Ryder, In re; Burton
V. Kearsley, 83 L. J. Ch. 653; [1914] 1 Ch.
865; 110 L. T. 970; 58 S. J. 556—
Warrington, J.
f. Successive and Concurrent Interests — Joint
Tenancy and Tenancy in Common.
See also Vol. XV. 1360, 2080.
Life Estate — Gift over to Two Persons —
"Should one die before the other" —
Certainty of Event — Impossibility of Death of
both eo instanti — Contingency Imported.] —
A testator left property in trust for A for life
and at her death to his two nieces B and C
in equal shares, adding the words, " should
one of my nieces die before the other the other
surviving niece to take the whole." There
was a gift over " should my nieces die with-
out lawful issue." The tenant for life died
in 1873. In 1911 one of the nieces died
leaving children her surviving. The surviving
niece, who also had children, claimed the
whole of the property : — Held, that there must
be read into the gift the contingency of a
niece dying in the lifetime of the tenant for
life, as death itself is not a contingency, but a
certainty, and no two persons can die eo
instanti, and, accordingly, the surviving niece
was only entitled to one half of the property,
and the legal personal representative of tbe
deceased niece were entitled to the other half.
Howard v. Howard (21 Beav. 550) followed.
Fisher, In re; Robinson v. Eardley, 84 L. J.
Ch. 342; [1915] 1 Ch. 302; 112 L. T. 548;
59 S. J. 318— Sargant, J.
Joint Tenancy or Tenancy in Common —
Children to be Paid their Parent's Share —
Effect of Word "Pay" on Joint Tenancy.] —
A testator gave leasehold property to his
nephews and nieces as tenants in common,
and in case of the death of one or more of
them he directed that the child or children
of such one or more of his nephews and nieces
so dying should " be paid " a parent's share :
— Held, that the children of a deceased nephew
took their parent's share as joint tenants, and
not as tenants in common. A simple direction
to " pay " a legacy or share of residue to
more than one person is not sufficient to make
the recipients tenants in common. Dictum of
'North, J., in Atkinson, In re ; Wilson v. Atkin-
son (61 L. J. Ch. .504; [1892] 3 Ch. 52, 54).
not followed. Clarkson. In re: Public Trustee
V. Clarkson, 84 L. J. Ch. 881 ; [1915] 2 Ch.
216; 59 S. J. 630— Eve, J.
Words of Severance — Powers of Advance-
ment and Maintenance — " Presumptively
entitled."] — A testator gave his residuary
estate to trustees upon trust for A. for life,
and on A.'s death to divide between and
amongst the members of a class then living,
and their issue per stirpes if any of them
should be then dead ; and he gave his trustees
powers of maintenance and advancement. The
power of maintenance was a power, " during
the minority of any legatee entitled " under
the will, to apply to maintenance the whole
or part of " the annual income to which any
such infant legatee shall for the time being
be actually or presumptively entitled." The
power of advancement was a power, " from
time to time during the minority of any male
legatee " under the will, to apply to his
advancement " all or any part of the capital
to which such legatee shall be presumptively
entitled for the time being." On a summons
taken out after A.'s death, — Held, that the
substantial gift was restricted to children only
of members of the class, and that (on the con-
struction of the maintenance and advance-
ment clauses) such children took as tenants
in common. Bennett v. Houldsworth,
104 L. T. 304; 55 S. J. 270— Joyce, J.
Gift for "support" of Children — Tenancy.]
— A testator gave to his daughter A all the cash
he had in bank, to be used by her for her
own support and that of his children B and C,
and gave to her all his stock-in-trade and
furniture and other effects, to be applied by
her for the like purpose. B and C were
adults at the date of the will -.—Held, that
the word " support " was equivalent to
" benefit," and A, B. and C took the property
absolutelv and as joint tenants. Nolan, In re ;
Sheridan V. Nolan, [1912] 1 Ir. E. 416— M.R.
3. Mortgages.
Specific Devise of Mortgaged Property-
Banking Account — Transfer of Banking
Account — Guarantee to Bank by Transferor —
Exoneration of Personal Estate.] — A testator
charged a freehold house with payment to his
1817
WILL.
1818
bankers of all moneys for the time being owing
from him to them, in order from time to time
to be able to overdraw his business account.
Subsequently, being unable owing to illness
to carry on his business himself, he trans-
ferred the account into the name of his son
and a daughter, and requested the bank to
give them such credit and make them such
advances as they might require, and guaran-
teed the bank the payment of all moneys then
and thereafter due on the general balance of
the account. At his death the account was in
debit to the amount of something over 2,000/.
Having by his will specifically devised the
freehold house to his son, — Held, (a) that the
charge included all money due or capable of
becoming due from the testator to the bank
under the guarantee ; (b) that the testator was
in substance and in fact the principal debtor
for the balance owing to the bank at his
death ; (c) that therefore the Real Estate
Charges Act, 18-54, applied, and that the free-
hold house specifically devised was subject to
the charge for that amount in exoneration
of the testator's personal estate. Hawkes.
In re; Reeve v. Hawkes, 81 L. J. Ch. 641;
[1912] 2 Ch. 2.51 ; 106 L. T. 1014— Parker, J.
Semble, that if in substance as well as in
form the testator had been merely a surety for
the payment of the debit balance, and the
principal debtor had actually paid it off after
the testator's death, the Real Estate Charges
Act, 1854, would not have applied. Ih.
Husband and Wife — Mortgage of Property
Belonging to "Wife— Election of Wife to take
under Will — Liability of Property Brought in
by Election for Debts — Incidence of Contribu-
tion as between Beneficiaries.] — A testator,
whose estate consisted chiefly of five leasehold
properties, appointed his wife and C. execu-
tors and trustees and gave all his estate to
them upon trust to pay to his wife the rents
for life, and after her death he left his four
leasehold messuages in Q. Street and his six
leaseholds in J. Street to his trustees upon
trust to pay the income to his daughter,
E. S., for life, and after her death to her
children ; and after the death of his wife he
bequeathed two leaseholds in R. Street and a
leasehold villa, B., to a niece, and after dis-
posing of the remaining leaseholds in S. Street
for the benefit of E. S. and her children,
he bequeathed the residue of his estate to his
wife, charged with debts. The property in
Q. Street was subject to a mortgage for 318/.
The property in J. Street was assigned to the
testator's wife in 1888, and by a deed of
August 25, 1909, the testator purported to
mortgage it to secure 400/. This mortgage
was existing at his death. The leasehold
villa B. was assigned to the testator and his
wife jointly in 1905, and by a deed of
August 15, 1905, they jointly mortgaged the
same to secure 400/. The other leaseholds in
R. and S. Streets were also assigned to the
testator's wife in 1888. The widow elected
to take under the testator's will. On an
originating summons by C. to have it deter-
mined how, as between the beneficiaries, the
two mortgages for 400/. respectively and the
debts should be borne, — Held, that the equities
had to be determined as at the testator's
death, and as to the mortgage of 400/. on the
J. Street property, created without the know-
ledge of the wife, Locke King's Act did not
apply, and this property was not primarily
liable for the payment of this mortgage debt.
But held as to the villa B., mortgaged by a
deed to which the wife was a party, that Locke
King's Act applied, and the property was
primarily liable for the charge upon it.
Williatns, In re; Cunlifje v. Williams,
84 L. J. Ch. 578; [1915] 1 Ch. 450; 110 L. T.
569— Eve, J.
Held, further, that, the residue of the
testator's estate being now insufiicient for the
payment of debts, the property brought in by
reason of the widow's election was liable to
contribute part passu with the testator's pro-
perty in discharging his debts. Cooper v.
Cooper (44 L. J. Ch. 6 ; L. R. 7 H.L. 53)
applied. lb.
4. Marshalling.
Devise of Mortgaged Property — Trust for
Sale Reserving Rentcharges — Deficiency —
Exoneration of Real Estate.] — A testator
devised property upon trust for sale and
directed certain rentcharges to be created and
reserved out of such property for the benefit of
his daughters. At the date of the will and at
the date of the testator's death the property
was subject to mortgages. The property
appeared to be insufficient to provide for the
rentcharges and for payment off of the mort-
gages : — Held, that the principles of marshal-
ling should be applied, and that if, after a sale
of the property reserving the rentcharges, the
proceeds of sale were not sufficient to satisfy
the mortgages, the deficiency should be paid
out of the residuary estate, and that the rent-
charges should not be required to contribute
to payment of the mortgage debts unless the
residuary estate were insufficient. Buckleii v.
Buckley (19 L. R. Ir. 544) followed. Fr;/,
In re; Fry v. Fry, 81 L. J. Ch. 640; [191-2]
2 Ch. 86; 106 L. T. 999; 56 S. J. 518—
•Joyce, J.
Devise of Freeholds and Leaseholds — Dis-
claimer of Leaseholds and Freeholds —
Pecuniary Legacies — Insufficient Assets.] —
Where it has been held that, leaseholds having
been disclaimed, the specifically devised and
residuary freeholds must also be disclaimed,
and where there was an insufficiency of assets,
— Held, that the rules of marshalling applied
in the same way as if there had been
an intestacy as to the leaseholds and free-
holds disclaimed, and that accordingly, in
paying the testatrix's debts and funeral and
testamentary expenses, after exhausting her
residuary personal estate, except a fund con-
sisting of so much thereof as would satisfy
the pecuniary legacies which had been set
aside, resort must be had to the disclaimed
freeholds before resorting to the said fimd so
set aside. Sitwell. hi re: Worsley v. Sifwrll.
57 S. J. 730— Neville, J.
Contingent Specific Legacy of Shares —
Debts and Testamentary Expenses — Sale of
Shares to Relieve Residue — Subsequent De-
crease in "Value of Shares — Vesting of Con-
1819
WILL.
1820
tingent Legacy — Compensation of Specific
Legatee.] — A testator bequeathed a specific
legacy of certain shares to a trustee upon trust
for his son on his attaining the age of twenty-
one. Some of these shares were sold by the
executors in order to satisfy creditors, in relief
of the residuary estate. Subsequently the son
attained the age of twenty-one : — Held, that
the son was now entitled to compensation for
the shares thus sold, on the basis of the value
of the shares at the time of his attaining
twenty-one, but not on the basis of their value
at the time of their sale. Broadwood, In re;
Lyall V. Broadicood, 80 L. J. Ch. 202; [1911]
1 Ch. 277; 104 L. T. 49— Neville, J.
5. Trusts.
See also Vol. XV. 1459. 208-5.
Beneficial Interest or Trust.] — A testator
bequeathed to his wife his entire worldly
effects to be managed as best she could for
the benefit of their children : — Held, that the
•wife took no beneficial interest. Hickey,
In re; Hickey v. Hickey, [1913] 1 Ir. K. .390
— C.A.
Precatory Trust.] — The doctrine of precatory
trusts as defined and limited by modern
authority considered and stated. .Atkinson,
In re; Atkinson v. Atkinson, 80 L. J. Ch. 370;
103 L. T. 860— C.A.
Testator made the following bequest : " To
my father, if living at my death, and if not,
to my younger sister, I bequeath absolutely
6,000/., but it is my specific wish that the
said sura shall be distributed as follows :
4,000L to" a certain school; 50ol. to another
school ; and 5001. "to be given to " ten or
more deserving people as therein mentioned :
—Held, that the testator's father, who sur-
vived the testator, was entitled to the legacy
of 5,000L free from any trust or legal obliga-
tion, lb.
The words " I desire the 300L which I
have bequeathed to A to be divided by her
on her death, as she shall think fit, amongst
the daughters of my cousin B " create a
trust capable of being enforced. Jevons, In
re; Jevons v. Public Trustee, 56 S. J. 72
— Swinfen Eady, J.
A testator appointed his wife universal
legatee. The will continued : "It is my
earnest wish and desire that my wife should
during her lifetime pay out of my estate to
my sister . . . the sum of 305. each and every
week " : — Held, that this expression of a wish
did not amount to a precatory trust or direc-
tion to pay, and gave to the sister of the
testator no interest to propound his will.
Dobie V. Edwards; Hanmer, In the goods of,
80 L. J. P. 119; 55 S. J. 537; 27 t. L. R.
4j64 — Bargrave Deane, J.
Power to Appoint among Named Persons
— Default of Appointment — Implied Gift —
Death of Remainderman during Life Interest.]
— A bequest to A. for life, " with remainder
as she shall by deed or will and in his sole
discretion appoint amongst " certain named
persons, creates a trust by implication, in
default of appointment, for such of those per-
sons as survive the testator, whether they
survive the life tenant or not. Wilson v.
Diiguid (53 L. J. Ch. 52; 24 Ch. D. 244)
applied. Walford, In re: Kenyan v. Walford,
55 S. J. 384— Joyce, J.
6. Gifts by Reference and Implication.
Trusts Declared in Will by Reference to
Trusts Contained in Daughter's Marriage
Settlement.] — Where a testator gave a share
of his residuary estate to the trustees of his
will upon trust for his married daughter, and
declared that his trustees should hold the same
" upon the same trusts and with and subject
to the same powers " as were in her marriage
settlement contained with respect to the funds
thereby settled, — Held, that, inasmuch as
there were different instruments, different
settlors, different funds, and different sets of
trustees, the rule of construction to be
applied was to read into the will the trusts
and powers of the settlement as though they
were therein set out, and that there was con-
sequently no accretion to the funds of the
settlement, but that the testator had by his
will created a new and distinct settlement.
Beaumont, In re; Bradshaw v. Packer,
82 L. J. Ch. 183 ; [1913] 1 Ch. 325 ; 108 L. T.
181; 57 S. J. 283— Farwell, J.
Hindle v. Taylor (25 L. J. Ch. 78 ; 5 De
G. M. & G. 577), Cooper v. Macdonald
(42 L. J. Ch. 533; L. R. 16 Eq. 258), Trew v.
Perpetual Trustee Co. (64 L. J. P.C. 49;
[1895] A.C. 264), and Baskett v. Lodge
(23 Beav. 138) distinguished. lb.
7. Legacies, whether General, Specific or
Demonstrative.
See also Vol. XV. 1500, 2088.
Specific Legacies Bequeathed " as general
and not as specific legacies."] — A testator
gave legacies of certain specific stock, bonds,
and shares " all now standing in my name as
general and not as specific legacies." The will
also contained gifts of general pecuniary
legacies. The estate proved insufficient to pay
all the legacies in full : — Held, that, although
the legacies were in fact specific, the tes-
tator intended them to take effect as though
they were general legacies, and that for pur-
poses of administration they must be treated
as general legacies. Compton, In re; Vaughan
V. Smith, 83 L. J. Ch. 862; [1914] 2 Ch. 119;
111 L. T. 245; 58 S. J. 580— Sargant, J.
Demonstrative Legacy — Reversionary Fund
— Interest.^ — A demonstrative legacy directed
to be paid out of a reversionary fund affords
no exception to the general rule stated by Lord
Cairns in Lord v. Lord (36 L. J. Ch. 533, 538;
L. R. 2 Ch. 782, 789), that where no time for
payment is fixed a legacy is payable at and
bears interest from the end of a year after the
testator's death. Walford v. Walford, 811,. J.
Ch. 828; [1912] A.C. 658; 107 ' L. T. 657;
56 S. J. 631— H.L. (E.)
A testator, who died in 1903, bequeathed to
his sister " the sum of lO.OOOZ. sterling as her
sole and absolute property, to be paid out of
the estate and effects inherited by me from my
1821
WILL.
1822
mother in terms of her last will," and with
respect to the residue of the aforesaid estate
and effects of his mother and of all other his
estate and effects then in his possession and
enjoyment, appointed as his sole heir or heirs
such heir or heirs as should succeed to the
estate of his father appointed by his father's
will. The estate and effects of the testator's
mother out of which the lO.OOOZ. legacy was
payable were subject to the life interest therein
of the testator's father, who died in 1910,
having by his will appointed an heir in accord-
ance with the terms of the testator's will :■ —
Held, that the 10,000/. carried interest from
the expiration of one vear from the testator's
death. lb.
8. Conditional Legacy.
Legacy on Condition of Acting as Trustee —
Sufficient Intention Shewn — Codicils — RcYoca-
tion.]— By his will dated October, 1899, the
testator bequeathed a legacy of 10,000Z. to
the plaintiff, provided he acted as trustee of
the will, and in default of his so acting, this
legacy was to fall into the residuary estate.
By a codicil of December, 1899, the testator
revoked this legacy, and in lieu thereof gave
the plaintiff 8,000l. subject to the same con-
dition and gift over as contained in the will.
By a second codicil he confirmed the first ;
and by a third codicil made in 1904 he pro-
vided as follows : " Whereas by my will . . .
I bequeathed to " the plaintiff " the sum of
10,000L, provided he acted as trustee of my
said will, now I absolutely revoke said be-
quest and in all other respects I hereby
ratify and confirm my said will." The tes-
tator died in 1904 and probate was granted
in the same year to two of the trustees and
executors named in the will, but the plaintiff
was abroad, and stated that he was not aware
of the testator's death till 1911, when he
expressed himself ready and willing to act as
trustee of the will, and came back to Ireland
and called for a transfer of the trust property
to himself and the other trustees. There
had been advances of money made by the tes-
tator to the plaintiff on foot of the legacy
of 8,000Z. in 1900 and 1901 -.—Held, first, that
there had been sufficient compliance by the
legatee with the condition; and, secondly,
that the third codicil did not operate as a
revocation of the first codicil, and that the
plaintiff was entitled to the legacy of 8.000Z.
given to him by the first codicil after giving
credit for money paid to him in advance in
respect of the legacy. Brotcne v. Browne,
[1912] 1 Tr. R. 272— Barton, J.
9. Cumulative Legacies.
See also Vol. XV. 1.52.5. 2089.
Several Documents — Legacies, whettier
Cumulative or Substitutional.] — A testatrix
by her will beqiiCMthod seven legacies to as
many legatees, including two legacies to her
two executors in case they acted as such ; she
bequeathed a sum of stock to her executors
on trust to pay the incoine to A for life, then
to B for life, and directed that on the death
of the survivor the said stock should fall into
her residuary estate, which she devised and
bequeathed to two persons in equal shares.
The testatrix subsequently executed four
documents in the nature of codicils ; and seven
months after the first will she executed a
second, beginning with the words, " This is
my last will and testament," but containing
no revocation clause. The second will was
almost a copy of the first ; the legatees were
the same, and were mentioned in the same
order. Four of the pecuniary legacies were,
however, reduced in amount ; one was in-
creased ; and two remained unaltered. The
bequest of stock was repeated, and the same
persons were appointed residuary legatees. All
six testamentary documents were together
admitted to probate : — Held, that the pecuniary
legacies bequeathed by the second document
were substitutionary for those in the first, and
not cumulative. Bell v. Park, [1914] 1 Ir. R.
158— C. A.
10. Charitable Legacies. See Charity.
11. Annuities. See Annuities.
12. Legacy to Debtor.
See also Vol. XV. 1550, 2089.
Legacy to Daughter — Advances to Son-in-
lav7 — Entries in Ledger Relating to Debt —
Appointment of Debtor as Executor — Direction
in Will to Deduct Debt from Legacy — Release
of Debt.] — A testator in his lifetime advanced
money from time to time to his son-in-law. In
his ledger he made an entry in February, 1907,
" 5,000/. is given off this debt for a definite
object arranged between me and Mrs. Moore "
— the wife of the debtor — " as from July 3,
1906, with interest due to that date." After
deducting the sum of 5.000/. the indebtedness
amounted in June, 1909, to 4,800/., and the
testator then made another entry : " This debt
is absolutely cancelled from this date viz. :
4,800/. and interest." By his will dated
March 12, 1908, the testator, after appointing
the debtor to be one of his executors, gave a
settled legacy to the debtor's wife and children
and directed that the debt due from the debtor
should be treated as a loss to the legacy and
not as a loss to his residuary estate : — Held.
that the debt of 4.800/. and interest had been
effectively released, but that the rest of the
debtor's indebtedness remained a debt due to
the testator's estate. Strong v. Bird (43 L. J.
Ch. 814; L. R. 18 Eq. 315) explained and
followed. Pink. In re; Pink v. Pink, 81 L. J.
Ch. 753; [1912] 2 Ch. 528; 107 L. T. 241;
56 S. J. 668; 28 T. L. R. 528-C.A.
Intention to Release Debt — Covenant in a
Mortgage — Evidence of Intention of Testator.]
— A direction l)y a testator in his will to his
trustees to pay his son a sum of money,
coupled with evidence that at the time when
the testator took security from his son for
a debt still owing he had said tliat he did
not intend to enforce such security, does not
amount to a release of such debt, and the
trustees can accordingly retain such legacy,
and set it off against the debt, which was of
1823
WILL.
1824
larger amount than the legacv. Tinline, In
re; Elder v. Tinline, 56 S. J. 310— Parker, J.
Evidence of Debt — Appointment of Alleged
Debtor as Executor — Evidence of Continuing
Intention to Forgive the Debt — Release.] —
Where a testator wrote a letter offering a sum
of 150/. to her friend, and making certain
suggestions with regard to her giving her an
I 0 U., and paying interest thereon, and wound
up the letter as follows : " I engage not to use
the I O U during your life ; also not to call
in the loan, but leave it with you as long as
you want it, and the interest is paid"; and
subsequently seemed offended when the friend
offered to pay the capital, and said, " I thought
it would just fall into your hands when I died.
The I 0 U is in an envelope with my papers,
directed to you, and when I die all you have
to do is to destroy it," and finally appointed
the friend her executor : — Held, that there
was a sufficient legal release of the debt by the
appointment of the friend as executor, coupled
with the continuing intention to release the
debt. Strong v. Bird (43 L. J. Ch. 814; L. K.
18 Eq. 315) applied. Goff, In re; Feather-
stonehaugh v. Murphy, 111 L. T. 34; 58 S. J.
535 — Sargant, J.
See also cases under Advances — Hotchpot
post, col. 1833.
13. Legacy to Creditor: Satisfaction.
See also Vol. XV. 1564, 2090.
Bequest to a servant held to be a satisfac-
tion of wages due to him by the testator at
the time of his death. Ellard v. Phelan,
[1914] 1 Ir. E. 76— Ross, J.
14. Ademption.
See also Vol. XV. 1576, 2091.
Specific Bequest of Shares — Reconstruction
of Company — Substitution of Nev? Shares.] —
A specific bequest of ten shares in a company
is not adeemed by the fact that, after the date
of the will, the company has been wound up,
reconstructed, and incorporated under the
same name, the ten shares being represented
by a greater number of shares in the
new company. Leeming, In re; Turner v.
Leeming, 81 L. J. Ch. 453; [1912] 1 Ch. 828;
106 L. T. 793— Neville, J.
And see Greenberry, In re, ayite, col. 1800.
"Shares belonging to me" — Will Speaking
from Death — Contrary Intention.] — Where a
testator bequeaths " twenty-three of the shares
belonging to me " in a certain company, and
such shares are between the dates of the will
and the testator's death, and on the occasion
of the amalgamation of that company with
another similar company, subdivided into four
shares each, the bequest will, in the absence
of a contrary intention, pass ninety-two of such
subdivided shares, provided it be possible to
identify the ninety-two shares as the equi-
valent in all but name and fom of the
original twenty-three shares. Clifford, In re;
Mallam v. McFie, 81 L. J. Ch. 220; [1912]
1 Ch. 29; 106 L. T. 14; 56 S. J. 91;
28 T. L. R. 57— Swinfen Eady, J.
" All my shares " — Reconstruction — Inclu-
sion of Stock.] — A gift of " all my shares "
in "' the A, B, and C companies was held to
pass preferred ordinary stock, into which the
shares in the company had been converted on
a reconstruction of that company and amal-
gamation with another company, but not a
debenture bond which had been created by a
reconstruction of the A company nor deben-
ture stock of the C company similarly created
on a reconstruction. Hutnphreys, In re:
Wren v. Ward, 60 S. J. 10-5— Sargant, J.
Specific Legacy — Misdescription — Shares in
a Company — Amalgamation with another
Company.] — By her will, made in 1907, a
testatrix gave to her son all the shares in the
W. Co. belonging to her at the time of lier
decease. There was no company of that
name in existence at the date of the will nor
at the death of the testatrix in 1911, but for
some years prior to 1900 the testatrix had
held shares in the A. Co., and in that
year the W. Co. was amalgamated with
the A. Co., the testatrix receiving shares
in the latter company in exchange for her
shares in the absorbed company, which she
still held at the date of her death : — Held,
that the shares in the A. Co. did not pass
to the specific legatee, but fell into the
residue. Atlay, In re; Atlay v. .itlay, 56 S. J.
444— Eve. J.
Bank Share — Amalgamation with another
Bank.] — A testator bequeathed to trustees
twenty-three shares belonging to him in the
London and County Bank upon certain trusts.
At the date of his will the testator held 104
shares in the bank of 80Z. each, 20L paid.
Between the date of the will and the date of
the testator's death the London and County
Bank was amalgamated with the London and
Westminster Bank, the name was changed to
the London County and Westminster Bank,
and the shares of SOL each, 201. paid, were
subdivided into four shares of 201., 51. paid : —
Held, that the bequest was not adeemed and
that the twenty-three original shares, or four
times that number since the division of the
shares, passed by the bequest. Clifford, In re;
Mallam v. McFie, 56 S. J. 91; 28 T. L. R. 57
— Swinfen Eady, .T.
Legacy — Money Paid into Joint Account of
Testator and Legatee — Admissibility of Parol
Evidence.] — A testator by his will dated
August 12, 1908, gave the"' sum of 300L to
S. D., who had been his housekeeper and nurse
and faithful servant. On April 15, 1909, he
wrote a letter to S. D., inclosing a cheque for
300i!. and stating that this sum was to be
instead of the 300L left to her in his will.
This letter, together with the cheque, was put
in an envelope and given to S. D., with in-
structions that the envelope was to be opened
at his death. S. D. did not know the contents
of the letter of April 15, 1909. In December,
1910, the testator sent S. D. for the envelope,
and in her presence opened it and took out
the cheque and re-sealed the letter in another
envelope. Later on in December, 1910, a sum
of 300l. was placed by the testator in a bank
to a joint account in the names of himself
1825
WILL.
1826
and S. D., with power for either of them
to draw upon it. The testator never expressed
any wish to alter or revoke his will or any
legacy contained in it -.—Held, that the gift
of 800Z. to S. D. was a clean gift unaccom-
panied by conditions, and that the legacy to
her of 3001. had not been adeemed by the
gift ; S. D. having no knowledge of the con-
tents of the letter of April 15, 1909, and there
being nothing to affect her conscience, that
letter could not be admitted as evidence to
prove that the testator intended his executors
not to pay the legacy. Shields, In re;
Corbould-Ellis v. Dales, 81 L. J. Ch. 370;
[1912] 1 Ch. 591; 106 L. T. 748— Warrington,
J.
Chapmaji v. Salt (2 Vern. 646), Shudal v.
Jekijll (2 Atk. 516), Hall v. Hill (1 Dr. & \V.
94), Kirk v. Eddowes (13 L. J. Ch. 402;
3 Hare, 509), and Foiokes v. Pascoe (44 L. J.
Ch. 367; L. E. 10 Ch. 343) considered. lb.
Bequest for Purchase of Land for Glebe —
Subsequent Purchase and Gift of Land by
Testator — Evidence.] — A testator by his will
dated December 31, 1904, bequeathed 500/. to
his trustees on trust to invest the same in
the purchase of land, in the parish of M., to
be used as glebe land for the vicarage of the
parish church, and he declared that the be-
quest was made in pursuance of the express
wish of his wife to do something for the parish.
Evidence was given that shortly after his wife's
death, in 1896, the testator had told the vicar
that he should like to do something in memory
of his wife, and that what she would have
liked best was the gift of a particular meadow
to the living. In 1905 the testator purchased
this piece of land for 375Z., and conveyed it on
trust for the endowment of the incumbent for
the time being of the living of M., as if the
same was a part of the glebe of the living. In
the conveyance it was recited that the testator
had purchased the land with the object and
intention of presenting the same to the living
of M. in memory of his wife : — Held, that the
statement made by the testator to the vicar
in 1896 was not admissible in evidence, and
that as the objects of the bequest and the gift
inter vivos were different, the one object being
to carry out the w'ife's wish and the other to
do something in memory of the wife, the
conveyance of 1905 was not an ademption of
the legacy bequeathed by the will. Aynsley,
In re; Kyrle v. Turner, 84 L. J. Ch. 2li ;
[1915] 1 Ch. 172; 112 L. T. 4.33; 59 S. J. 128;
31 T. L. R. 101— C. A.
Decision of Joyce, J. (83 L. J. Ch. 807;
[1914] 2 Ch. 422), affirmed. lb.
15. Lapse.
See also Vol. XV. 1596, 2094.
Legacy — Gift of Share of Residue — Contin-
gency— Legatee to be a Widow at Date of Dis-
tribution— Gift Over in Case she be a Wife —
Death of Legatee as a Widow before Period of
Distribution — Failure of Gifts and Gifts
Over.] — Whert^ a testator gave (a) a legacy
of 1,OOOL and (6) a share of residue to his
sister, a widow, payable on his wife's death,
provided the sister be a widow at that date.
but in the event of her being a wife at that
date then over to her two children, and the
sister died a widow, but predeceased the testa-
tor's wife, — Held, upon the death of the
testator's wife, that the legacy and the gift of
the share of residue, as well as the gifts over
to the children in each case, were contingent
upon the sister being alive at the date of
distribution, and that in the events that had
happened both the gifts and the gifts over
failed. Laing, In re; Laing v. Morrison,
81 L. J. Ch. 686; [1912] 2 Ch. 386; 107 L. T.
822; 57 S. J. 80— Parker, J.
Davies v. Davies (30 W. R. 918), Brock v.
Bradley (33 Beav. 670), and Whitmore, In re;
Walters v. Harrison (71 L. J. Ch. 673; [1902]
2 Ch. 66), distinguished. lb.
Settled Legacy — Lapse — Death of Life
Tenant before Testator.] — A testator be-
queathed his residuary estate to be divided
between his five named children, " subject to
the trusts following," which were in effect a
settlement on each child for life, with re-
mainder as to the capital of the share to his
grandchildren, the children of such child, with
accruer to the other shares in default of such
grandchildren. One of the children died in
the lifetime of the testator, leaving no issue
him surviving : — Held, that the share of the
deceased child did not lapse, but accrued to the
other shares. Walter, In re; Turner v. Walter,
j 56 S. J. 632— C. A.
16. Disclaimer of Legacy.
Onerous Bequest — Bequest of Leasehold
\ House and Furniture — Separate and Indepen-
i dent Gift.] — A testatrix by her will be-
queathed to L. her leasehold house with the
! appurtenances belonging thereto for all the
i residue of the term for which the same was
I held, subject to the rent reserved by and the
I covenants and conditions contained in the lease
under which the said premises were held,
together with all articles of personal or domestic
or household or stable or garden use or orna-
ment ; and she further bequeathed to L. all
the ready money which at her decease might
be in her house or standing to the credit of her
current account at her bankers' ; she also gave
him a life interest in certain trust funds : —
Held, that L. was entitled to disclaim the
bequest of the leasehold house and accept the
gift of chattels and other benefits contained
in the will. Syer v. Gladstone (30 Ch. D. 614),
as explained by Kensington (Baron), In re;
Longford (Earl) v. Kensington (Baron)
(71 L. J. Ch. 170; [1902] 1 Ch. 203), and
Hotchkys, In re; Freke V. Calmady (55 L. J.
Ch. 546; 32 Ch. D. 408), considered and fol-
lowed. Lysons, In re; Beck v. Lysons,
107 L. T. 146; 56 S. .J. 705— Joyce, J.
Married Woman — Bequest of Annuity for
Separate Use without Power of Anticipation.]
— A marrii (1 woman, l)eing entitled to an
animity under a will for her separate use
without power of anticipation, agreed with the
residuary legatees to disclaim the bequest on
condition that they paid her a sum of money :
— Held, that the married woman was entitled
to disclaim the bequest. Wimperis, In re;
58
1827
WILL.
1828
Wicken v. Wilson, 83 L. J. Ch. 511; [1914]
1 Ch. 502; 110 L. T. 477; 58 S. J. 304—
Warrington, J.
Power to Retract Refusal to Accept Income.]
— See Young, In re; Fraser v. Young, post,
col. 1833.
17. Charge of Legacies.
See also Vol. XV. 1633, 2094.
General Charge of Debts Including Mort-
gage Debts — Specific Devises of Incumbered
and Unincumbered Property — Subsequent
Devise of Specific Property on Trust for Pay-
ment of Debts.] — Where a testator declared
that all his debts, including mortgage debts
and funeral and testamentary expenses, should
be paid and satisfied, and subsequently — after
making a specific bequest of personalty and a
number of specific devises of incumbered and
unincumbered property in favour of his chil-
dren— created an express trust fund, consisting
of certain specific realty and of the residue of
his realty and personalty for payment of his
debts, including mortgage debts, and funeral
and testamentary expenses, and this express
trust fund proved inadequate to the burden i
imposed upon it, — Held, first, that the general
charge of debts implied by the initial direction
was explained and limited by the subsequent
creation of a definite fund for the purpose, and
that only such real estate as was comprised in
that fund was charged with debts and funeral
and testamentary expenses. Thomas v. Brit-
nell (2 Ves. sen. 313), Palmer v. Graves
(1 Keen, 545), and Corser v. Cartwright (L. E.
8 Ch. 971) followed. Price v. North (11 L. J.
Ch. 68; 1 Ph. 85) distinguished. Major, In re ;
Taylor v. Major, 83 L. J. Ch. 461; [1914]
1 Ch. 278; 110 L. T. 422; 58 S. J. 286—
Sargant, J.
Held, secondly, that so much of the mort-
gage debts as was not discharged out of the
express trust fund must be borne by the
separate mortgaged properties, each property
bearing the remainder of its own mortgage.
Held, thirdly, that the other debts and the
funeral and testamentary expenses not paid
out of the express trust fund must fall rate-
ably on the specifically bequeathed personalty
and specifically devised hereditaments in pro-
portion to their values, which in the case of
such of them as were incumbered would be
the total value of each property less the propor-
tion of its mortgages not discharged out of the
express trust fund. lb.
Gift of Specific Foreign Realty and Per-
sonalty Subject to Legacies and Debts — No
Express Exoneration of Residuary Estate —
Foreign Personalty Primarily Liable — Foreign
Realty not so Liable — Order of Administration
— Mixed Fund.] — A testator appointed execu-
tors and gave legacies free of duty and, subject
to the payment of the said legacies and duty
and his funeral and testamentary expenses and
debts, he gave all his real estate situate in the
Argentine Eepublic, together with certain per-
sonal property in or about the same, to his
trustees upon trust to sell and to pay the
proceeds to certain nephews in equal shares,
and he gave all the residue of his real and
personal estate to the plaintiff. On the ques-
tion whether the testator had charged his
specifically given real and personal estate in
the Argentine Bepublic with the payment of
his legacies, duties, expenses, and debts in
exoneration of his residuary estate, — Held,
first, that, as a matter of construction, the
charge was confined to the Argentine property.
Secondly, that the rule that something must
be found in the will to shew that the testator
intended not only to charge the realty, but to
discharge the personalty, applies to land out-
side the jurisdiction. Thirdly, that, since
there was no trust for conversion for the
purposes of satisfying the charge upon the
specifically given property, it was not a
" mixed fund " within the authority of
Roberts v. Walker (1 Kuss. & M. "752).
Fourthly, that the specifically given personalty
was charged in exoneration of the residuary
estate. Fifthly, that the legacies, duties,
expenses, and debts were therefore payable
out of the several funds in the following order
of administration : (a) the specifically given
personalty, (b) the residuary personal estate,
and (c) the specifically given realty. Smith,
In re: Smith v. Sm'ith, 83 L. J. Ch. 13;
[1913] 2 Ch. 216; 108 L. T. 952— Eve, J.
18. Abatement; Priorities.
See also Vol. XV. 1670, 2095.
Life Interests in Appropriated Sums —
Capital to Fall into Residue — Legatees
Treated as Annuitants — Insufficient Estate —
Abatement — Valuation.] — Legatees whose
legacies are life interests in sums directed to
be appropriated for their benefit and after
their deaths to fall into residue are really
annuitants, and where the estate is insuffi-
cient to pay legacies and keep down the
annuities the rule for the purpose of ascer-
taining the proper and proportionate abate-
ment of legacies and annuities respectively is
to put all on the same level and to convert the
annuities into pecuniary legacies. To effect
this each annuity is to be valued as at the
date when it would have been payable had it
taken the form of a pecuniary legacy, and the
value so ascertained is treated as a pecuniary
legacy liable to abate rateably with the other
legacies. Cottrell, In re; Buckland v. Beding-
field (79 L. J. Ch. 189; [1910] 1 Ch. 402),
applied. Richardson, In re; Richardson v.
Richardson, 84 L. J. Ch. 438; [1915] 1 Ch.
.3.53: 112 L. T. .554— Eve, J.
Legacy in Satisfaction of an Interest under
a Settlement — Insufficiency of Assets — Abate-
ment.]— A testator by a voluntary settlement
settled a sum of money upon trust to pay the
income thereof to himself for life, and after his
death to pay such income to his maidservant if
she should survive him, and after the death of
the survivor of them upon trust as to both
capital and income for the benefit of an
orphanage. Subsequently, by his will he gave
a sum of 1,000?. to the said maidservant on
condition that she released the trustees of the
settlement from all claims by her under the
settlement and accepted the legacy in place
1829
WILL.
1830
thereof. The testator's estate proved in-
sufficient to pay in full all the pecuniary lega-
cies given by the will : — Held, that the legacy
in question, if accepted, was not entitled to
priority over other pecuniary legacies, but was
liable to abate with them. Davies v. Bush
(Younge, 341) and Weclmore, In re; Wedniore
V. Wedmore (76 L. J. Ch. 486; [1907] 2 Ch.
277), considered. Wliiteltead . In re; White-
head V. Street. 82 L. J. Ch. 302; [1913"1 2 Ch.
.56; 108 L. T. 368; .57 S. J. 323— Farwell, L.J.
Settled Legacy — Annuity — Insufficient
Estate — Apportionment.] — The testator left
his estate to trustees on trust to convert, and,
as to one moiety of the proceeds, to hold 2,500Z.
on trust for M. T. for life, and to set aside a
sum sufficient to produce an income of 78/. per
annum, and hold the same in trust for A. T.
for life. The moiety of the estate proved
insufficient to satisfy the legacy and annuity :
— Held, that the trustees must ascertain what
sum invested in Two and a Half Per Cent.
Consols at one year from the testator's death
would have been sufficient to produce an in-
come of 78L per annum, and apportion the
moiety of the estate in the proportion of that
sum to 2,500/. McMahon, hi re: Wells v.
Tyrer, 55 S. J. 552 — Warrington, J.
Priority of Legacies — Words " after making
proYision."] — A testator bequeathed certain
personal legacies; and continued : " after mak-
ing provision for the above-mentioned sums,
I direct " certain legacies to be paid to
charities. The estate was insufficient to pay
all the legacies in full : — Held, that the per-
sonal legacies had priority over the charities.
Olivieri, In re ; Hamill v. Rusconi, 56 S. J. 613
— C.A.
Gift to Charity of Legacies Payable out
of such Part of Personal Estate as may Law-
fully be Appropriated to such Purposes — Will
made after Mortmain Act, 1891 — Direction to
Pay Certain Legacies and " after payment
thereof" others — Priorities of Legatees.! — A
testator gave his residuary real and personal
estate on trust for sale and conversion, and
directed his trustees thereout " in the first
place " to pay or retain all the expenses inci-
dental to the execution of certain trusts and
powers, and his debts and funeral and testa-
mentary expenses, and "' in the next place "
to pay or retain all the expenses incidental to
the execution of certain trusts and powers, and
his debts and funeral and testamentary
expenses, and " in the next place " to pay
legacies to certain nephews, " and after pay-
ment thereof" to pay legacies to certain
nieces. He gave legacies to eleven charities,
and directed that they should be paid " exclu-
sively out of such part of my personal estate
as may lawfully be appropriated to such pur-
poses and in preference to any other payments
thereout." The will was made after the
passing of the Mortmain and Charitable Uses
Act, 1801 : — Held, first, construing the will
with reference to the law after the passing of
that Act, that the charitable legacies were a
first charge upon the whole of the testator's
personal estate not specifically bequeathed, in
preference to all other payments, but were not
payable out of the proceeds of sale of real
estate; and secondly, that the words "after
payment " of the legacies to the nephews did
not indicate that they were to have any priority
of interest over the nieces, and that the
legacies given to the nephews and nieces there-
fore ranked pari passu. Bridqer. In re;
Brompton Hospital v. Lexcis (63 L. J. Ch.
186; [1894] 1 Ch. 297), and Thwaites v.
Foreman (1 Coll. C.C. 409; on app. 10 Jur.
483) followed. Harris, In re; Harris v. Harris.
81 L. J. Ch. 512 ; [1912] 2 Ch. 241 ; 106 L. T.
755 — Warrington, J.
Executor Manager of Business — Salary
Given by Will — Legacy — Insolvent Estate.i —
A testator empowered his trustees to appoint
one of their number to manage his business
till sale, at a salary, the estate afterwards
proving insolvent : — Held, that the gift of
salary was a legacy, and could not be paid in
priority to the creditors of the estate. Salmen,
In re: Salmen v. Bernstein. 107 L. T. 108:
.56 S. J. 632— C.A.
19. Interest and Intermediate Income.
See also Vol. XV. 1721, 2095.
Interest — Postponement of Legacies until
Legatees Attain Twenty-three — Attainment of
that Age before Death of Testator — Whether
Payable from Date of Testator's Death or from
Expiration of One Year After.] — A testator
gave a legacy to each of his seven children as
and when he or she should respectively attain
the age of twenty-three. The two eldest chil-
dren attained that age in the lifetime of the
testator, and it was claimed on their behalf
that interest became payable on the two
legacies in question as from the death of the
testator : — Held, that interest did not become
payable until one year from the death of the
testator. Pickwick v. Gibbes (1 Beav. 271)
and Coventry v. Higgins (14 Sim. 30) distin-
guished and criticised. Palfreeman. In re;
Public Trustee v. Palfreeman. 83 L. J. Ch.
702 ; [1914] 1 Ch. 877 ; 110 L. T. 972 ; 58 S. J.
456 — Sargant, J.
Gift to Son on Attaining Twenty-five —
Share of Residue — Interest by Way of Main-
tenance.]— A testator bequeathed to his infant
son a legacy on his attaining twenty-five and
a further legacy on his attaining thirty, and
also gave him a share of residue which was to
be settled on the son for life with remainder
to his children : — Held, that the legacies did
not carry interest even up to the age of twenty-
one. Abrahams, In re: Abrahams v. Bendon,
80 L. J. Ch. 83; [1911] 1 Ch. 108; 103 L. T.
532; 55 S. J. 46— Eve, J.
A bequest of a share of residue does not
amount to such a provision for maintenance as
will displace the general nde that a contingent
legacy given by a parent to an infant child
carries interest. Moody. In re: Woodroife v.
Moody (64 L. J. Ch. 174; [1895] 1 Ch.lOl).
followed. 7b.
A legacy to an infant legatee to whom the
testator stands in loco parentis, where the
legacy is contingent on events having no rela-
tion to his infancv, does not carry interest. 7b.
1831
WILL.
1832
Legacy Payable at Twenty-one — Main-
tenance— Provision for Maintenance of Legatee
out of other Funds.] — The intention that a
legacy should carry interest, which is pre-
sumed where a testator naerely gives a future
legacy with a power to the executors to main-
tain the legatee out of the legacy, cannot be
presumed in a case where a testator in addition"
to such future legacy makes provision for the
maintenance of the legatee out of some other
fund. West, In re; Westhead v. Aspland,
82 L. J. Ch. 488; [1913] 2 Ch. 345; 109 L. T.
39 — Warrington, J.
Pett V. Fellows (1 Swanst. 561n.), Leslie v.
Leslie (LI. & G. 1), and ChurcJiill, In re;
Hiscock V. Ladder (79 L. J. Ch. 10; [1909]
2 Ch. 431), distinguished. lb.
Destination of Income — "From and after
the decease of my said six nieces " — Income
between the Death of the First to Die and the
Last to Die — Distributive Construction.] — A
testator gave his trust estate to trustees " upon
trust to pay the income thereof to each of
such of my said six nieces as shall be living
... at the time of " the death of " the sur-
vivor of my said wife and son, for and during
the respective lives of my said nieces, and
from and after the decease of my said six
nieces, to stand possessed of my said trust
estate and the income thereof," upon trust for
such child or children of the testator's son
as should be living at the son's death. Three
nieces survived the testator's widow and son.
The son left one child : — Held, that " from
and after the decease of my said six nieces "
should be read distributively, and that, as and
when each niece died, her share of income
went immediately to the remainderman —
that is, to the son's child. Browne's Will
Trusts, In re; Landon v. Brown, 84 L. J.
Ch. 623; [1915] 1 Ch. 690; 113 L. T. 39--
Sargant, J.
Gift of Life Interest in Realty — Gift in
Remainder of "as well the income as the
corpus of the same " — Remaindermen Infants
— Interests Vesting at Twenty-one or Marriage
— Right to Intermediate Income.] — A testator
who died in 1904 gave real estate on trust to
permit one of his daughters to receive the
income during her life, and on her death on
trust to hold " as well the income as the
corpus of the same " on such trusts as she
should by will appoint, and subject thereto on
trust for all her children at twenty-one or
marriage. He gave his residuary estate on
trust for his wife for life, and on her death
for his children. The daughter died intestate
in December, 1913. She left six children, of
whom the eldest attained twenty-one in
December, 1914. The other five were infants
and unmarried : — Held, in view of the express
mention of income in addition to, and before
the mention of, corpus, that the income for
the period between the death of the daughter
and the attainment of twenty-one by her
eldest child belonged to her children, and did
not fall into residue as undisposed of ; and
that, as between the daughter's children, the
eldest child was not entitled to the whole of
the income for any period, but that each of
the six children was entitled to a sixth of the
income of the property as and when becoming
entitled to a corresponding sixth of the
corpus, and in the meantime to maintenance
out of such income. Bective (Earl) v.
Hodgson (33 L. J. Ch. 601; 10 H.L. C. 656)
and Averill, In re; Salisbury v. Buckle
(67 L. J. Ch. 233; [1898] 1 Ch. 523), dis-
tinguished. Stevens, In re; Stevens v.
Stevens, 84 L. J. Ch. 432; [1915] 1 Ch. 429;
112 L. T. 982; 59 S. J. 441— Sargant, J.
Held, also, that if the intermediate income
between the death of the daughter and thf
attainment of twenty-one by her eldest child
had fallen into residue, it would have been
payable as income to the tenant for life. lb.
Gift to Several Persons Equally for Life —
Gift Over on Death of Survivor — Implying Gift
of all Income to Survivors till Distribution —
Provision for Parties Entitled under Gift Over
during Lives of Life Tenants — Life Tenant
Predeceasing Testator — Intestacy.] — The prin-
ciple that where there is a gift equally between
A, B, and C for their respective lives, with a
gift over of the whole property on the death
of the survivor, an intention will be implied
on the part of the testator that the survivor
or survivors of A, B, and C shall, after the
death of one or more of them, be entitled to
all the income till the period of distribution,
cannot be applied where there is a provision,
during the lives of some of the first takers,
for parties entitled under the gift over.
Hobson, In re; Barwick v. Holt, 81 L. J.
Ch. 432; [1912] 1 Ch. 626; 106 L. T. 507;
56 S. J. 400— Parker, J.
A testator gave the income of his residuary
estate on trust for fourteen named persons
during their respective lives. In case any
of them should die leaving children them
surviving, the share of income of the parent
so dying was to be divided equally among
the children. On the death of the survivor
of thirteen of the fourteen persons the pro-
perty was given equally among such of the
children of H. and the thirteen persons as
might be living at the death of the last
survivor. Two of the fourteen persons died
without issue in the testator's lifetime : —
Held, that the Court could neither construe
the gift as one to the named persons in joint
tenancy, or imply a gift over to the survivors,
on the deaths of any of the named persons, of
the shares of income given to them ; and that
there was therefore an intestacy as to the
shares of income given to the two persons
who predeceased the testator. lb.
Income of Trust Fund to be Paid to Legatee
for Life — Refusal of Legatee to Accept Income
— Power to Retract Refusal.] — A testatrix
directed her trustees to set apart out of her
estate and invest a sum of 1,000/. and to pay
the income thereof to the plaintiff during her
life, and after her death to pay the income
to the plaintiff's son for his life, and after
his death she directed that the capital and
come of the fund should sink into and form
part of her residuary estate. For some time
the plaintiff refused to accept the income of
the fund in question, and she desired that it
should be paid to her son ; and accordingly it
was paid to him till his death. Thereafter
1833
WILL.
1834
the plaintiff requested that the income should
be paid to her : — Held, that she was entitled
to have the income paid to her as no one
had been prejudiced by what had occurred.
Young, In re: Eraser v. Young, 82 L. J.
Ch. 171; [1913] 1 Ch. 272; 108 L. T. 292;
57 S. J. 265; 29 T. L. E. 224— Swinfen
Eady. J.
20. Advances — Hotchpot.
See also Vol. XV. 2100.
Bequest of Residue to Children Subject to
Life Interest of Widow — Advances to be
Brought into Account on Division of Residue
— Advances made by Testator, whether
Released by Will.] — A testator devised and
bequeathed all his residuary estate upon trust
for his wife for life and after her death in the
events that happened for division equally
between his nine children. The testator pro-
vided by his will and two codicils that in
making such division any advances that he
might have made to any of his sons during
his lifetime and which should not have been
repaid should be brought into account to-
gether with simple interest thereon at the rate
of 2 per cent, from the date of the advance
up to the date of the death of his widow.
Prior to the date of the will and also between
the date of the will and the dates of the
codicils the testator had made advances to
each of his five sons. No written acknow-
ledgments were given by the sons to the
testator in respect of the advances made to
them respectively, but some of the advances
had, without demand, been partially repaid
during the testator's lifetime : — Held, that the
sons were not released from repaying the
advances, and that the widow as tenant for
life was entitled to such interest as was paid
in respect of the advances from and after the
testator's death. Young, In re; Young v.
Young, 83 L. J. Ch. 453; [1914] 1 Ch. 581,
976; ill L. T. 265— C. A.
Gift of Residue to Children in Equal Shares
— Advances to some Children in Lifetime —
Further Advances by Trustees — Postponement
of Conversion — Division of Income Pending
Conversion — Adjustment between Advanced
and Unadvanced Children.] — Where a testator
gave his residuary estate to his trustees upon
trust to be divided amongst his children in
equal shares, and had made advances to some
of his children during his lifetime which he
directed to be brouglit into hotchpot, and had
given his tnistees wide power to postpone the
conversion of his estate, and where the trustees
had made further advances to some of the
children, — Held, that for the purposes of the
division of the income of the estate pending
conversion, the actual income of the estate
must be taken and to that interest on the
advances, whether made in the lifetime of the
testator or afterwards, added, and the aggre-
gate so arrived at divided amongst the
children, deducting in the case of an advanced
child the interest on the advance made to
such child. Poy.fer. In re; Landon v. Poyser
(77 L. J. Ch. 482; [1908] 1 Ch. 828), followed.
Hargreaves, In re; Hargreaves v. Hargreaves
(88 L. T. 100), considered and distinguished.
Craven, In re; Wat.ton v. Craven, 83 L. J.
Ch. 403; [1914] 1 Ch. 358; 109 L. T. 846;
58 S. J. 138— Warrington, J.
Advances to be Taken in Satisfaction pro
tanto of Share of Residue — In Default of Direc-
tion to the Contrary in Writing — Covenant to
Pay Annual Allowance — Declaration that
Allowance not to be Taken in Part Satisfaction
of Share under Will — Codicil after Date of
Settlement.] — By a will it was provided that
moneys which a testator had given or cove-
nanted to give to any child " on his or her
marriage or otherwise for his or her advance-
ment or establishment in life " should, " in
default of any direction to the contrary in
writing under my hand," be taken in or
towards satisfaction of the child's share under
the testator's will and " brought into hotch-
pot and accounted for accordingly." On the
marriage of the testator's son after the date
of the will he covenanted to pay to the son's
settlement trustees an aimual sum during the
joint lives of himself and other persons, and
declared that the sums payable under that
covenant should not be taken in satisfaction
of any share which the child might take in
the testator's residuary estate under his will,
and he subsequently made a codicil whereby
he confirmed his will. It was objected that
this declaration to the contrary must be dis-
regarded as being an attempt to regulate a
testamentary disposition by a non-testamen-
tary instrument : — Held, that the sums should
not be brought into account, as the hotchpot
clause should be construed as requiring to be
brought into hotchpot only sums answering a
particular description — that is, sums advanced
free from a declaration to the contrary as to
hotchpot — and that this construction was
aided by the fact that the codicil made by the
testator after the date of the settlement con-
firmed the will. Semble, such an allowance
does not come within the scope of the hotchpot
clause at all. Arbuthnot, In re; Arbuthnot
V. Arbuthnot, 84 L. J. Ch. 424; [1915]
1 Ch. 422; 112 L. T. 987; 59 S. J. 398—
Sargant, J.
Shares of Residue — Advances to Residuary
Legatees — Period of Distribution — Unad-
vanced Legatees — Recoupment of Income.]^
A testator made a general residuary gift to
his trustees on trust for sale with full powers
of postponement and retention, and declared
that the trust fund should be held on trust to
pay to his wife during her widowhood out of
the income thereof such a sum as, together
with the income under her marriage settle-
ment, would make up the yearly sum of
3,000/. ; and lie provided that if the income of
the trust fund should not in any year be suffi-
cient to make up the 3,000/., the whole of the
income in that year should be paid to her,
and any deficiency should be made up when
the subsequent income of the trust fund would
permit. The trustees were directed to appro-
priate 4,000/. on trust for the benefit of a son
of the testator, and subject as aforesaid the
capital and intcTcst of the trust fund was to
lie held in trust for such of his sons, W., E.,
and J., and his daughters, I. and D., as being
1835
WILL.
183G
sons should attain twenty-one, or being
daughters should attain twenty-one or marry,
and so that the share of a son should be double
that of a daughter. The testator gave power
to the trustees, with the widow's consent
during widowhood, to advance a certain pro-
portion of the share of any of the children,
and then settled the share of any daughter
(less advances) on trust for her for life, and
after her death for her children. By a codicil
the testator declared that a sum of 7,200/.
with 4 per cent, interest as from his death,
which he had covenanted should be paid by his
executors to the trustees of the marriage
settlement of his daughter I., should be taken
in or towards satisfaction of the share of the
daughter and her issue in his residuary estate,
and should be brought into hotchpot and
accounted for accordingly. By another codicil
he provided that if his daughter D. should
marry during the wife's widowhood the
trustees might settle on her marriage a sum
equal to that settled on I., which sum should
cease to be subject to the widow's annuity
and the other will trusts, but should be
brought into hotchpot in the same manner as
I.'s 7,200/. The executors of the testator, on
his death, paid 7,200/. to I.'s settlement
trustees, and as from his death she received
the income of that fund. After the testator's
death D. married, and the testator's trustees
transferred 7,200/. to her settlement trustees
free from the widow's annuity, and D. thence-
forth received the income of that sum. The
income of the testator's estate, after deducting
the two sums of 7,200/., was sufhcient to pro-
vide for the widow's annuity and interest on
the 4,000/. trust legacy. No income of the resi-
duary estate was paid to I. from the testator's
death or to D. from the date of her marriage.
In appropriating the various charges on the
income of the residuary estate as from the
testator's death to the widow's death as be-
tween the several shares thereof, it appeared
that the shares of I. and D. in such income
were insufficient to meet the shares of the
charges appropriated thereto respectively : —
Held (distinguishing Hargreaves, In re;
Hargreaves v. Hargreaves, 88 L. T. 100),
that the period of distribution of the estate
was the death of the widow, and that the
shares settled on I. and D. should be brought
into hotchpot at that date and not before, so
that they would not be chargeable with the
deficiencies of income down to the widow's
death, and they were entitled as from that
date to the full income of their shares in the
residuary estate after bringing the sums
settled in their favour into hotchpot. Poyser,
In re; Landon v. Poyser (77 L. J. Ch. 482;
[1908] 1 Ch. 828), and Craven, In re; Watson
V. Craven (83 L. J. Ch. 403; [1914] 1 Ch.
358), followed. Forster-Brown, In re; Barry
V. Forster-Brown, 84 L. J. Ch. 361; [1914]
2 Ch. 584; 112 L. T. 681— Sargant, J.
In an ordinary case of a direction to bring
into hotchpot advances made either by the
testator himself or by his trustees pursuant to
directions in his will, interest is not accumu-
lated against advanced children between the
testator's death and the period of distribution.
lb.
Debt Due to Testator — Release by the Will
— Advances to be Brought into Hotchpot.] — A
declaration in a will that all moneys advanced
to any of the testator's children, or his, or her
wife or husband, should be brought into hotch-
pot and accounted for on the distribution of
his estate, was held not to cover two advances
by way of loan to the husband of one of the
testator's daughters, one of a sum of 1,000/..
secured b}' promissory note given before the
date of the will, and another of a sum of 650/..
also secured by promissory note given after tho
date of the will. The clause had not had the
eSect of altering the nature of transactions
which were really debtor and creditor trans-
actions. Such a clause is a charging and not
a discharging clause, and applies primarily to
advances by way of anticipatory portion : —
Held, accordingly, that these debts were
personally recoverable. Judgments of the
Lords .Justices in Limptis v. Arnold (54 L. J.
Q.B. 85 ; 15 Q.B. D. 300) not in conflict with
this view. Warde. In re: Warde \. Ridgway.
Ill L. T. 35; 58 S. J. 472— Sargant, J.
Supplying Omission by Inference.] — A testa-
tor devised his family estate upon trust to
raise by mortgage the sums of 4,000/., 3,000/.,
and 3,000/. for the benefit of F. P. H.,
G. E. W., and K. A. S. x-espectively , for life,
with certain limitations over. Subject to
these charges the estate was devised upon
certain limitations, which had determined,
with an ultimate trust for sale. This, in the
events which had happened, had taken effect.
The proceeds of sale were to be held on trust
for five of the testator's cousins, including
F. P. H., G. E. W., and K. A. S., as should
be living when the direction for sale came into
operation, in equal shares, but so that if
F. P. H., G. E. W., and K. A. S., " or any
of them shall then be living or shall have
previouslv died leaving issue then living,"
such of "the sums of 4,000/., 3,000/., and
3,000/. " as shall have been so set apart for
the benefit of the one or more of them so
dying and her issue " should be brought into
hotchpot ; and there was a proviso that if any
of the testator's five cousins should die before
the direction for sale of the estate should come
into operation leaving a child or children
living at the time when such direction for sale
should come into operation, such child or
children should take his, her, or their parent's
share. The said sums of 4.000/., 3.000/., and
3,000/. were duly raised for the benefit of
F. P. H., G. E. W., and K. A. S. respec-
tively. F. P. H. and G. E. W. were living
at the date when the direction for sale came
into operation ; K. A. S. died previously to
that date, leaving issue one child : — Held, that
some blunder having evidently been made in
the will, the latter part of the hotchpot clause
must be treated as fitting or intended to fit
the introductory part, and that F. P. H. and
G. E. W., though living, must bring into
hotchpot the sums of 4,000/. and 3,000/.
respectivelv. Haygarth. In re; Wickham v.
Haygarth,'B2 L. J. Ch. 328; [1913] 2 Ch. 9;
108 L. T. 756— Joyce, J.
Several Settled Funds — Appointment —
Trusts by Reference.] — A testator settled
1837
WILL.
1838
separate funds upon trust for his three children
respectively for their respective lives, with
remainder to their issue as they should respec-
tively appoint, and in default of appointment
to their respective children equally, " but so
nevertheless that no child who . . . shall take
a share under any such appointment as afore-
said shall . . . take any part of the trust
funds remaining unappointed without bringing
the share appointed to him or her . . . into
hotchpot." The testator then directed that in
the event of the failure of the trusts declared
in respect to any of these funds any such fund
should go in favour of his other children and
their issue successively "" upon the like trusts "'
as had already been declared in respect of the
funds settled in the first instance upon them :
— Held, that a granddaughter of the testator
who had become entitled to the whole of one
fund under her father "s power of appointment
was entitled to share in another fund, which
passed on failure of the trusts affecting that
other fund, equally with her deceased brother's
estate under the above-mentioned referential
trusts, without bringing the appointed fund
into hotchpot. Wood, In re; Wodehouse v.
Wood, 83 L. J. Ch. 59; [1913] 2 Ch. 574;
]C»9 L. T. 347; -57 S. J. 735— C.A.
Decision of Neville, J. (82 L. J. Ch. 203:
[1913] 1 Ch. 303), affirmed. lb.
Residuary Gift — Interest on Advancements
— Portions.' — Per Cuzens-Hardy, M.R. : The
rules laid down in the authorities for working
out the consequences of a common hotchpot
clause are, first, that no interest is charged
against an advanced child prior to the testa-
tor's death; secondly, that where the period of
distribution of the testator's property is at the
testator's death, interest is charged against
an advanced child from the death and not from
the subsequent date at which, in fact, the
distribution takes place; thirdly, that if the
period of distribution is at the expiration of a
period of accumulation or of a prior life estate,
interest is charged not from the death, but
from the period of distribution; and fourthly,
that the effect of a charge upon the residue,
such as a life annuity secured by a fund set
apart to meet it, does not alter the period of
distribution. Willoughby, In re; Willoughby
V. Decies, 80 L. J. Ch. 562; [1911] 2 Ch. 581;
104 L. T. 907— C.A.
Testator, who was twice married and had
executed a settlement on each occasion, died
in 1800, having by his will and codicil be-
queathed an annuity in favour of his widow
(who died in 1910) during her life, and
legacies in favour of certain children, and his
residuary estate in favour of all his children,
with special hotchpot provisions, according to
the true construction of which Parker, J., was
of opinion that the testator did not intend
an equality by way of benefit, but an equality
by way of portion between the children : —
Held (by Cozens-Hardy, M.R., and Kennedy,
L.J., affirming Parker, J.; dissentiente
Buckley, L.J.), that the case was taken out
of the general rule, and that advanced children
were not to be charged with interest between
the testator's death and the death of the
widow when the annuity fund became divisible.
Per Buckley, L.J. : There was nothing to take
the case out of the general rule, and advanced
children ought to be charged with interest
accordingly from the testator's death. 76.
Per Buckley, L.J. : Qucere the correctness
of the dictum in Lambert. In re; Moore v.
Middleion (06 L. J. Ch. 624; [1897] 2 Ch.
169], where Stirling, J., intimated that, if the
amount of an annuity were such as that there
were nothing immediately available for divi-
sion during the annuitant's lifetime, he would
have been prepared to hold that the period
of distribution was not until the death of the
annuitant. lb.
Advances by Testator at Interest — To be
Taken "in full or in part satisfaction" of
Benefits Given by Will — Hotchpot — Indebted-
ness Exceeding Benefits — Release of Debts —
Legacy of Difference.^ — A testator by his will
made in iy(Ji), after reciting that he had ad-
vanced to his son a sum of 25,000/. at interest
by way of loan, gave the sum of 25,000/. to such
son absolutely, directing that the advance or so
much thereof as should remain owing at his
decease should be taken in full or part satis-
faction, as the case might be, of the legacy of
25,000/. thereinbefore bequeathed. The testa-
tor, after making certain specific bequests to
his son, who also became entitled under the
will to certain contingent reversionary in-
terests, gave his residue among four of his
children in equal shares. In dividing up the
specific gifts which he made to each of his
children the testator apparently meant to pro-
duce equality. By a codicil made in 1912,
after stating that the sum of 25,000/. was still
owing, ^^•ith considerable arrears of interest,
and that since the date of his will he had
advanced further sums at interest to his son,
which were also then owing, the testator
directed that all such advances and all interest
that might be owing thereon should be taken
in full or in part satisfaction, as the case
might be, of the legacy of 25,000/. and the
various other benefits given to his son by his
will. Neither the will nor the codicil con-
tained any hotchpot clause. On the death of
the testator in 1914 none of these advances
had been repaid, and a considerable sum was
due for interest, and it was doubtful whether
the amount which the son took under the will
would be sufficient to satisfy his indebtedness
to the testator's estate : — Held, that the words
in the codicil amounted to a gift to the son of
his indebtedness to the estate of the testator,
and were sufficient to involve a legacy to him
of the difference of the two sums in the event
of the debts exceeding the benefits given to him
bv the will. TroUope, In re ; Game v. Trollope,
84 L. J. Ch. 553; [1915] 1 Ch. 853; 113 L. T.
153 — Astbury, J.
The dicta in the judgments in Limpus v.
Arnold (53 L. J. Q.B. 415: 13 Q.B. D. 246;
54 L. J. Q.B. 85; 15 Q.B. D. 300) followed.
Cosier, In re: Humphreys v. dadsden (66 L. J.
Ch. 236; [1897] 1 Ch. 325). applied. /().
Residue — Advances to Children — Hotchpot —
Interest — Computation Pending Division.] — A
testator directed his trustees to pay the income
of one moiety of his residuary estate to his
widow reducible on her second marriage, and,
subject thereto, directed them to stand possessed
1839
WILL— WOEDS.
1840
thereof upon trust for his children in the shares
mentioned. The shares were settled with a
protected life interest with remainders over.
The testator directed that in computing the
share of his eldest son, such son was to bring
into hotchpot a sum of 2,2.50L, as to which
1,700/. had been paid by the testator and,
550/. was paid after his death by his executors
under the testator's guarantee of the son's
banking account ; and a similar direction was
given as to 1,000/. advanced to another son : —
Held, that, for the purpose of ascertaining the
proportions of the shares, the various sums
paid by the testator and his executors to and
for his two sons respectively ought to be added
to the value of the moiety of the testator's
estate the income of which was not directed
to be paid to his widow, and from the aggregate
capital so asscertained the sums directed to
be brought into account ought to be deducted
from the shares of such two sons, and the
income divided from the testator's death in
the proper proportions of the respective shares
of capital so ascertained. Hargreaves, In re;
Hargreaves v. Hargreaves (88 L. T. 100),
considered, and the method of computation
adopted therein applied. Hart. In re; Hart
V Arnold, 107 L. T. 757— Eve, J.
Power to Advance to Tenants for Life.] —
A proviso in a will autliorising trustees, not-
withstanding anything thereinbefore contained
— -that is, notwithstanding (inter alia) gifts of
income to the children — followed by gifts of
capital to the grandchildren to apply moneys
out of the capital for or towards the advance-
ment or preferment of the children, limited to
a certain amount in the case of each child, is a
proviso which contemplates the bringing into
account of such sums as were so advanced as
against the share of the stirps of the child to
whom such advancement was made. Sparkes,
In re; Kemp-Welch v. Kemp-Welch, 56 S. J.
90-Swinfen Eady, J.
Advancement Clause — Fee to Architect.] — A
fee paid to an architect by the testator to
enable his son to learn the business of an
architect is not an " advancement " for the
benefit of the son, and need not be accounted
for. Watney, In re; Watney v. Gold. 56 S. J.
109— Swinfen Eady, J.
WINDING-UP.
See COMPANY.
WITNESS.
In Bankruptcy Cases.] — See Bankruptcy.
In Criminal Cases.] — See Criminal Law.
In Other Cases.] — See Evidence.
WOMEN.
Criminal Law, Relating to.] — See Criminal
Law.
Seduction.] — See Master and Servant.
Other Matters, Relating to.] — See Husband
AND Wife.
WINE.
See INTOXICATING LIQUORS.
WORDS.
"About to leave or desert" Wife.] — See
Rex V. King (No. 1), 110 L. T. 783; 24 Cox
C.C. 146.
Access through " court, passage, or other-
wise."] — See 'Neicquay Urban Council t.
Rickeard. 80 L. J. K.B. 1164; [1911] 2 K.B.
846: 105 L. T. 519; 9 L. G. R. 1042;
75 J. P. 382.
" Accident."] — See Trim Joint District
School V. Kelly, 83 L. J. P.C. 220; [1914]
A.C. 667; [1914] W.C. & I. Rep. 359:
111 L. T. 305 ; 58 S. J. 493; 30 T. L. R. 452;
Nishet V. Rayne, 80 L. J. K.B. 84; [1910]
2 K.B. 689; 103 L. T. 178; 54 S. J. 719;
26 T. L. R. 632; Barbeary v. Chugq, 84 L. J.
K.B. 504: 112 L. T. 797; [1915] W.C. &
I. Rep. 174 : 31 T. L. R. 153 ; and Risdale v.
" Kilmarnock " (Owners), 84 L. J. K.B. 298:
ri915] 1 K.B. 503; [1915] W.C. & I. Rep.
141 ; 112 L. T. 439: 59 S. .7. 145 ; 31 T. L. R.
134.
" Accident arising out of and in the course
of the employment."] — See Workmen's Com-
pensation.
" Act adopting the transaction."] — See Genn
V. Winkel, 107 L. T. 434; 17 Com. Cas. 823;
56 S. J. 612; 28 T. L. R. 483.
" Act done in pursuance of Act of
Parliament."] — See Myers v. Bradford Cor-
poration . 84 L. J. K.B. 306 ; [1915] 1 K.B. 417 ;
112 L. T. 206; 79 J. P. 130; 13 L. G. R. 1 ;
59 S. J. 57; 31 T. L. R. 44.
" Action."] — See Roberts v. Battersea
Borough Council. 110 L. T. 566; 78 J. P. 265;
12 L. G. R. 898; and Johnson v. Refuqt
Assurance Co., 82 L. J. K.B. 411; [1913]
1 K.B. 259; 108 L. T. 242; 57 S. J. 128;
29 T. L. R. 127.
1841
WOEDS.
1842
Action " for injury caused by any accident."]
—See Potter v. Welch <t Sons, Lim., 83 L. J.
K.B. 1852; [1914] 3 K.B. 1020; [1914] W.C.
& I. Eep. 607 ; 30 T. L. E. 644.
" Action founded on any breach of con-
tract."]— See Hughes v. Oxenham, 82 L. J.
Ch. 155; [1913] 1 Ch. 254; 108 L. T. 316.
"Action to recoYer money."] — See Blow,
In re; St. Bartholomew's Hospital (Governors)
V. Cambden, 83 L. J. Ch. 185 ; [1914] 1 Ch.
233; 109 L. T. 913; 58 S. J. 136 ; 30 T. L. R.
117.
"Actual military serTice."] — See Limond,
In re, 84 L. J. Ch. 833; [1915] 2 Ch. 240;
59 S. J. 613.
" Actual net cost to the owner."] — See
Evans v. Gwendraeth Anthracite Colliery Co.,
83 L. J. K.B. 1312; [1914] 3 K.B. 23;
110 L. T. 959 ; 30 T. L. R. 376.
"Actually transferred."] — See Magnus, In
re; Salaman, ex parte, 80 Ij. J. K.B. 71;
[1910] 2 K.B. 1049; 103 L. T. 406; 17 Man-
son, 282.
"Adapted to distinguish."] — See Cadbury's
Application, In re (No. 1), 84 L. J. Ch. 242;
[1915] 1 Ch. 331 ; 112 L. T. 235 ; 32 R. P. C. 9 ;
59 S. J. 161; and Lea's Trade Mark, In re,
81 L. J. Ch. 241 ; [1913] 1 Ch. 446 ; 108 L. T.
355 ; 30 R. P. C. 216 ; 57 S. J. 373 ; 29 T. L. R.
334.
"Adjoining."] — See Cave v. Horsell,
81 L. J. K.B. 981; [1912] 3 K.B. 533;
107 L. T. 186 : 28 T. L. R. 543.
"Adjoining premises."] — See Derby Motor
Cab Co. V. Cromvton and Evans Union Bank,
57 S. J. 701 : 29 T. L. R. 673.
" Affected. "]^ — See Mackenzie, In re; Mac-
kenzie V. Edwards-Moss, 80 L. J. Ch. 443;
[1911] 1 Ch. 578 ; 105 L. T. 154 ; 55 S. J. 406 :
27 T. L. R. 337.
"Agreement."]— See McGuire v. Paterson
,(■ Co.. [1913] S. C. 400: [1913] W.C. &
I. Eep. 107.
"Agricultural locomotive."] — See London
County Council v. Lre. 83 L. J. K.B. 1373;
[1914] 3 K.B. 255; 111 L. T. 569; 78 J. P.
396 ; 12 L. G. R. 733.
"Aggrieved person."] — See Pink v. Shar-
wood (No. 2), 109 I;. T. 594; 30 R. P. C. 725.
"All death duties."] — See Briqgs, In re:
Richardson v. Bantoft, 83 L. .t. Ch. 874;
[1914] 2 Ch. 413: 58 S. J. 722.
" All lighters, barges, and other like craft."]
— See Smerd, Dean if f-'o. v. Port of London
Authority, 82 L. J. K.B. 323; [1913] 1 K.B.
226: 108 L. T. 171; 12 Asp. M.C. 297;
57 S. J. 172; 29 T. L. R. 122.
" All losses."] — See Century Bank of New
York V. Mountain, 110 L. T. 261; 19 Com.
Cas. 178.
"All persons interested."] — See Ivey v.
Ivey, 81 L. J. K.B. 819; [1912] 2 K.B. 118;
106 L. T. 485; [1912] W.C. Rep. 293.
"Alteration" of Author's Work.] — See
Carlton Illustrators v. Coleman, 80 L. J. K.B.
510; [1911] 1 K.B. 771 ; 104 L. T. 413.
"And" Construed as "or."] — See Golden
Horseshoe Estates Co. v. Regem, 80 L. J.
P.C. 135; [1911] A.C. 480; 105 L. T. 148.
" Annual licence value."] — See Inland
Revenue Commissioners v. Truman, Hanbury,
Buxton <£■ Co., 82 L. J. K.B. 1042; [1913]
A.C. 650; 109 L. T. 337; 77 J. P. 397;
57 S. J. 662; 29 T. L. R. 661.
"Annual profits or gains."] — Bee Humber
Conservancy Board v. Bater, 83 L. J. K.B.
1745 ; [1914] 3 K.B. 449.
"Annual rental."]— See Windham's Settled
Estate, In re, 81 L. J. Ch. 574; [1912] 2 Ch.
75; 106 L. T. 832.
*' Annuitant."] — See British Union and
National Insurance Co., In re, 83 L. J. Ch.
596; [1914] 2 Ch. 77; 111 L. T. 357;
30 T. L. R. 520.
"Any building."] — See Jackson v. Knuts-
ford Urban Council, 84 L. J. Ch. 305; [1914]
2 Ch. 686; 111 L. T. 982; 79 J. P. 73;
53 S. J. 756.
"Any other ship or vessel."] — See Bennett
Steamship Co. v. Hull Mutual Steamship Pro-
tecting Society, 83 L. J. K.B. 1179; [1914]
3 K.B. 57; 111 L. T. 489; 19 Com. Cas. 353;
30 T. L. R. 515.
"Any person aggrieved."] —See Inland
Revenue Commissioners v. Joicey (No. 1),
82 L. J. K.B. 162; [1913] 1 K.B. 445;
108 L. T. 135; 29 T. L. R. 150.
"Anything inhaled."] — See United London
and Scottish Insurance Co., In re; Proton's
Claim, 84 L. J. Ch. 620; [1915] 2 Ch. 167;
59 S. J. 529; 31 T. L. R. 419.
" Any tobacco."] — See Hale v. Morris d
Sons, Lim., 83 L. J. K.B. 162; [1914] 1 K.B.
313; 109 L. T. 875; 78 J. P. 17; 23 Cox C.C.
666; 30 T. L. R. 9.
" Appeal."] — See Furtado v. City of London
Brewrrii Co,. 83 L. J. K.B. 255: [1914]
1 K.B. 709: 110 L. T. 241; 6 Tax Cas. 382;
58 S. J. 270; 30 T. L. R. 177.
" Applicant."] — See Minister for Lands v.
Coote. 81 li. J. P.C. 112; [1915] A.C. 583;
112 L. T. 1098.
" Arrangement or compromise."] — Sec Shaw
V. Royce, Lim.. 80 L. J. Ch. 163; [1911]
1 Ch. 138; 103 L. T. 712; 18 Manson, 159;
55 S. J. 188.
1843
WOEDS.
1844
" Arrears of rent."] — See Ford, In re ; Myers
V. Molesworth, 80 L. J. Ch. 355 : [1911] 1 Ch.
455 ; 104 L. T. 245.
"Article."] — See M'Intyre v. M'Iniee,
[1915] S. C. (J.) 27.
"Articles of a perishable nature."] — See
London County Council v. Welford's Surrey
Dairies, 82 L. J. K.B. 669 ; [1913] 2 K.B. 529 ;
108 L. T. 998; 77 J. P. 206: 11 L. G. R. 831;
23 Cox C.C. 428; 29 T. L. E. 428.
"As general and not as specific legacies."]
— See Compton, In re; Vaughan v. Smith,
83 L. J. Ch. 862; [1914] 2 Ch. 119: 111 L. T.
245 ; 58 S. J. 580.
"Assessments charged on the premises."] —
See Eastwood v. Mc'Sah, 83 L. J. K.B. 941;
[1914] 2 K.B. 361 ; 110 L. T. 701 : 12 L. G. E.
517.
"As such trustees but not otherwise."] —
See Robinson's Settlement, In re; Gant v.
Hobbs, 81 L. J. Ch. 393: [1912] 1 Ch. 717;
106 L. T. 443; 28 T. L. E. 298.
"At his own disposal."] — See Howell. In
re; Buckingham. In re: Liggins \. Bucking-
ham. 83 L. J. Ch. 811: [1914] 2 Ch. 173;
111 L. T. 438.
" At or immediately before."] — See Dean v.
Rubian Art Pottery. Lim.. 83 L. J. K.B. 799;
[1914] 2 K.B. 213 ; [1914] W.C. & I. Eep. 147 ;
110 L. T. 594; 58 S. J. 302; 30 T. L. R. 283.
" At sea."]— See The Mowe, 84 L. J. P. 57 ;
[1915] P. 1; 112 L. T. 261; 59 S. J. 76;
31 T. L. E. 46.
" At shipper's risk."] — See Wilson, Soiis
rf- Co. V. '■ Galileo" (Cargo Owners); The
" Galileo," 83 L. J. P. 102; 111 L. T. 656;
19 Com. Cas. 459; 30 T. L. E. 612.
"Attempt to commit felony."] — See Rex v.
Mann, 83 L. J. K.B. 648; [1914] 2 K.B. 107;
110 L. T. 781: 78 J. P. 200; 24 Cox C.C. 140:
58 S. J. 303; 30 T. L. E. 310.
"Attested."] — See Shaniu Patter v. Abdul
Kadir Ravuthan, L. E. 39 Ind. App. 218;
28 T. L. E. 583.
" Average weekly earnings."] — See cases
under Workmen's Compens.^tiox CAssessment
of Compensation).
"Back-to-back houses.""! — See Murrayfield
Real Estate Co. v. Edinburgh Magistrates.
[1912] S. C. 217: and White v. St. Maryle-
bone Borough Council. 84 L. J. K.B. 2142;
[1915] 3 K.B. 249.
" Bankruptcy matters."] — See Chatterton
V. City of London Brewery Co., 84 L. J.
K.B. 667; [1915] A.C. 631: 112 L. T. 1005;
[1915] H. B. E. 112; 59 S. J. 301.
"Barge."] — See Smeed v. Port of London
Authority, 82 L. J. K.B. 323; [1913] 1 K.B.
226; 108 L. T. 171; 12 Asp. M.C. 297;
57 S. J. 172 ; 29 T. L. E. 122.
"Become bankrupt,"] — See Mackay. In re,
[1915] 2 Ir. E. 347.
" Become payable to some other person."] —
See Laye, In re: Turnbull v. Laye, 82 L. J.
Ch. 218; [1913] 1 Ch. 298: 108 L. T. 324:
20 Manson, 124; 57 S. J. 284.
" Becomes insolvent."] — See James v. Rock-
wood Colliery Co., 106 L. T. 128 : 56 S. J. 292 ;
28 T. L. E. 215.
"Beer."] — See Fairhurst v. Price, 81 L. J.
K.B. 320; [1912] 1 K.B. 404: 106 L. T. 97;
76 J. P. 110 ; 22 Cox C.C. 660 ; 28 T. L. E. 132.
"Being."] — See Forrester v. Norton,
80 L. J. K.B. 1288; [1911] 2 K.B. 953:
105 L. T. 375; 75 J. P. 510; 9 L. G. E. 991;
55 S. J. 668: 27 T. L. E. 542.
"Body having control of street."] — See
Postmaster- General v. Hendon Urban Council,
83 L. J. K.B. 618; [1914] 1 K.B. 564;
110 L. T. 213; 78 J. P. 145; 12 L. G. E. 437.
"Books."] — See Barratt. In re; Barratt v.
Coates. 31 T. L. E. 502.
" Breaking."] — See Rex v. Chandler,
82 L. J. K.B. 106; [1913] 1 K.B. 125;
108 L. T. 352; 77 J. P. 80; 23 Cox C.C. 330:
57 S. J. 160; 29 T. L. E. 83.
"British ship."]— See The Rigel, 81 L. J.
P. 86; [1912] P. 99; 106 L. T. 648;
28 T. L. R. 251; [1912] W.C. Eep. 351.
"Brothel."] — See Caldwell v. Leech,
109 L. T. 188 ; 77 J. P. 254; 23 Cox C.C. 510;
29 T. L. E. 457.
" Building."] — See Schweder v. Worthing
Gas. Light and Coke Co., 81 L. J. Ch. 102
[1912] 1 Ch. 83: 105 L. T. 670; 76 J. P. 3
10 L. G. E. 19; .56 S. J. 53; 28 T. L. E. 34
and Regent's Canal and Dock Co. v. London
County Council 81 L. J. Ch. 377; [1912]
1 Ch. 583; 106 L. T. 745; 76 J. P. 353;
10 L. G. E. 358 ; 56 S. J. 309 ; 28 T. L. R. 248.
" Building land " — " Buildings."] — See
Waite's Executors v. Inland Revenue Com-
missioners. 83 L. J. K.B. 1617 : [1914] 3 K.B.
196; 111 L. T. 505; 58 S. J. 634; 30 T. L. R.
568.
"Buildings" or "other structures."] — See
Morrison V. Inland Revenue Commissioners,
84 L. J. K.B. 1166; [1915] 1 K.B. 716:
112 L. T. 1044; 31 T. L. R. 176.
" Business."] — See Commercial Cable Co. v.
Att.-Gen. of Newfoundland, 82 L. J. P.C. 5;
[1912] A.C. 820; 107 L. T. 101; 28 T. L. R.
537; and Abenheim, In re; Abenheim, ex
parte, 109 L. T. 219.
1845
WOEDS.
1846
" By contract or otherwise."] — See Att.-Gen.
V. Seccomhe, 80 L. J. K.B. 913; [1911]
2 K.B. 688; 105 L. T. 18.
" Calculated to deceive."] — See Van der
Leeuw's Trade Mark, In re, 81 L. J. Ch. 100;
[1912] 1 Ch. 40; 105 L. T. 626; 28 E. P. C.
708; 53 S. J. 53; 28 T. L. R. 35; ScJiicht's
Trade Mark, In re, 29 R. P. C. 483;
28 T. L. R. 375; and Imperial Tobacco Co.'s
Trade Marks, In re, 84 L. J. Ch. 643; [1915]
2 Ch. 27; 112 L. T. 632; 32 R. P. C. 361;
59 S. J. 456; 31 T. L. R. 408.
" Carriage."] — See Pollard v. Turner,
82 L. J. K.B. 30; [1912] 3 K.B. 625;
107 L. T. 792; 77 J. P. 53; 11 L. G. R. 42;
23 Cox C.C. 233; 29 T. L. R. 34; and Cook
V. Hobbs, 80 L. J. K.B. 110; [1911] 1 K.B.
14; 103 L. T. 566; 75 J. P. 14 ; 9 L. G. R.
143.
"Carrying coal for sale."] — See Hunting v.
Matthews, 108 L. T. 1019; 77 J. P. 331;
11 L. G. E. 723 ; 23 Cox C.C. 444 ; 29 T. L. R.
487.
Carrying on "a trade or business."] — See
Clark, In re ; Pope, ex parte, 84 L. J. K.B. 89 ;
[1914] 3 K.B. 1095; 112 L. T. 873; [1915]
H. B. R. 1; 59 S. J. 44.
" Carrying on business."] — SeeDayer-Smith
V. Hadsley, 108 L. T. 897; 57 S. J. 555.
"Carry on the profession of a solicitor."] —
See Woodbridge v. Bellamy, 80 L. J. Ch. 265;
[1911] 1 Ch. 326; 103 L. T. 852; 55 S. J. 204.
" Carrying on trade."] — See Egyptian
Hotels V. Mitchell. 83 L. J. K.B. 1510; [1914]
3 K.B. 118; 111 L. T. 189; 58 S. J. 494;
30 T. L. R. 457.
" Carrying on trade of purveyor of milk."] —
See Spiers d Pond, Lirn. v. Green, 82 L. J.
K.B. 26; [1912] 3 K.B. 576; 77 J. P. 11;
10 L. G. R. 1050; 29 T. L. R. 14.
"Cause of appeal."] — See Glamorgan
County Council v. Barry Overseers, 81 L. J.
K.B. 836; [1912] 2 K.B. 603; 76 J. P. 307;
10 L. G. R. 477.
"Causing."] — See Moses v. Midland Rail-
way, 84 L. J. K.B. 2181.
" Causing injury to health."] — See Oakey v.
Jackson, 83 L. J. K.B. 712 ; [1914] 1 K.B. 216 ;
110 L. T. 41; 78 J. P. 87 ; 12 L. G. R. 248;
23 Cox C.C. 734; 30 T. L. R. 92.
"Causing or encouraging."] — See Rex v.
Chainey,63 L. J. K.B. 306 ; [1914] 1 K.B. 137 ;
109 L. T. 752; 78 J. P. 127; 23 Cox C.C. 620;
30 T. L. R. 51.
"Chargeable."] — See Rex v. Staffordshire
Justices; Ormskirk Union, Ex parte, 81 L. J.
K.B. 894; [1912] 1 K.B. 616; 106 L. T. 579;
76 J. P. 177 ; 10 L. G. E. 274; 56 S. J. 324.
"Charity school."] — See Ackworth School
V. Betts, 84 L. J. K.B. 2112.
"Chartered or as if chartered."] — See
Scottish Shire Line v. London and Provincial
Marine and General Insurance Co., 81 L. J.
K.B. 1066; [1912] 3 K.B. 51; 107 L. T. 46;
17 Com. Cas. 240; 56 S. J. 551.
"Children."] — See Pearce, In re; Alliance
Assurance Co. v. Francis, 83 L. J. Ch. 266 ;
[1914] 1 Ch. 254 ; 110 L. T. 168; 58 S. J. 197.
" Civil commotion or rioting."] — See London
and. Manchester Plate- Glass Insurance Co. \.
Heath, 82 L. J. K.B. 1183 ; [1913] 3 K.B. 411 ;
[1913] W.C. & I. Eep. 696; 108 L. T. 1009:
29 T. L. R. 581.
"Clerk."] — See Jones, In re: Williams v.
Att.-Gen., 106 L. T. 941.
" Clerk or servant."] — See Beeton d Co., In
re, 83 L. J. Ch. 464; [1913] 2 Ch. 279;
108 L. T. 918; 20 Manson, 222; 57 S. J. 626;
and Morison d- Co., In re„ 106 L. T. 731.
" Coachman."] — See London Coujity Council
V. .men, 82 L. J. K.B. 432; [1913] 1 K.B. 9;
107 L. T. 853; 77 J. P. 48; 10 L. G. R. 1089;
23 Cox C.C. 266; 29 T. L. R. 30.
"Collusion."]— See Scott v. Scott (No. 2),
82 L. J. P. 39; [1913] P. 52; 108 L. T. 49;
57 S. J. 227 ; 29 T. L. R. 206.
"Colony or dependency."] — See Maryoii-
Wilson's Estate, In re, 81 L. J. Ch. 73;
[1912] 1 Ch. 55 ; 105 L. T. 692 ; 28 T. L. R. 49.
" Colourable publication."] — See Francis,
Day (C- Hunter v. Feldman £ Co., 83 L. J.
Ch. 906; [1914] 2 Ch. 728; 111 L. T. 521;
59 S. J. 41.
" Committed to prison."] — See Rex v.
Brixton Prison (Governor); Mehamed Ben
Ramdan, Ex parte, 81 L. J. K.B. 1128; [1912]
3 K.B. 190; 76 J. P. 391; 28 T. L. R. 530.
" Common lodging house."] — See London
County Council v. Hankins, 83 L. J. K.B. 460;
[1914] 1 K.B. 490 ; 110 L. T. 389 ; 78 J. P. 137 ;
12 L. G. R. 314; 24 Cox C.C. 94; 30 T. L. E.
192.
"Company."] — See Dunbar v. Harvey,
83 L. J. Ch. 18; [1913] 2 Ch. 530; 109 L. T.
285; 20 Manson, 388; 57 S. J. 686.
" Compensation granted by the Treasury."]
— See Lupliin. In re : Official Receiver, ix parte,
81 L. J. K.B. 177; [1912] ] K.B. 107;
105 L. T. 726; 19 Manson, 26; 56 S. J. 205;
28 T. L. R. 45.
"Compensation payable by lessor."] — See
Inland Revenue Commissioners v. Anglesey
(Marquess), 82 L. J. K.B. 811 ; [1913] 3 K.B.
62 ; 108 L. T. 769 ; 57 S. J. 517 ; 29 T. L. R. 495.
1847
WORDS.
1848
"Completed execntion."] — See Godding, In
re; Partridge, ex parte, 83 L. J. K.B. 1222;
[1914] 2 K.B. 70; 110 L. T. 207: 21 Manson.
137; 58 S. J. 221.
" Compromise or arrangement."] — See
General Motor Cab Co., In re (No. 1), 81 L. J.
Ch. 505; [1913] 1 Ch. 377; 106 L. T. 709;
19 Manson, 272; 28 T. L. R. 352.
"Compulsory process."] — See Rex v. Noel,
84 L. J. K.B. 142; [1914] 3 K.B. 848;
112 L. T. 47.
" Concerned in or participates in profits of
any contract."]— See Star Steam Laundry Co.
V. Duka,s, 108 L. T. 367: 57 S. J. 390;
29 T. L. R. 269.
"Concerning the interpretation."] — See The
Cap Blanco, 83 L. J. P. 23; [1913] P. 130;
109 L. T. 672; 12 Asp. M.C. 399; 29 T. L. E.
557.
"Concession."] — See Warsaw Exploring
Syndicate v. African Rubber Co., 83 L. J.
P.C. 316; [1914] A.C. 626; 111 L. T. 54.
" Concurrent contracts of serYice."] — See
" Raphael " Steamship v. Brandy, 80 L. J.
K.B. 1067; [1911] A.C. 413; 105 L. T. 116;
55 S. J. 579: 27 T. L. R. 497.
" Confectionery."] — See London County
Council V. Welford's Surrey Dairies, 82 L. J.
K.B. 669; [1913] 2 K.B. 529; 108 L. T. 998;
77 J. P. 206 ; 11 L. G. R. 831 ; 23 Cox C.C. 428 :
29 T. L. R. 438.
"Confined as a patient in a hospital."] —
See Ormskirk Union v. Lancaster Union,
107 L. T. 620; 77 J. P. 45; 10 L. G. R. 1041.
" Congregation." — See Hutchinson's Trusts,
In re, [1914] 1 Ir. R. 271.
" Consideration."] — See London and Pro-
vinces Discount Co. v. Jones, 83 L. J. K.B.
403; [1914] 1 K.B. 147; 109 L. T. 742;
21 Manson, 18; 58 S. J. 33; 30 T. L. R. 60.
"Considered as closed."] — See Manchester
Ship Canal Co. v. Horlock, 83 L. J. Ch. 637;
[1914] 2 Ch. 199; 111 L. T. 260; 59 S. J. 533;
30 T. L. R. 500.
" Constructively lost."] — See Manchester
Ship Canal Co. v. Horlock, 83 L. J. Ch. 637;
[1914] 2 Ch. 199; 111 L. T. 260; 58 S. J. 533;
30 T. L. R. 500.
"Constructive total loss."! — See Polurrian
Steamship Co. v. Young, 84 L. J. K.B. 1025;
[1915] 1 K.B. 922; 112 L. T. 1053: 20 Com.
Cas. 152; 59 S. J. 285; 31 T. L. R. 211.
"Consumption" of Intoxicating Liquor.] —
Bee Blakey v. Harrison, 84 L. J. K.B. 1886;
[1915] 3 K.B. 258: 113 L. T. 733; 79 J. P.
454; 31 T. L. R. 503.
"Contents of house."] — See Oppenheim,
In re; Oppenheim v. Oppenheim, 111 Li. T.
937 ; 68 S. J. 723.
" Continuance of the security."] — See
Locke d Smith, Lim., In re; Wigan v. The
Company, 83 L. J. Ch. 650; [1914] 1 Ch. 687 ;
110 L. T. 683 ; 58 S. J. 379.
"Continuing directors."]— See Sly, Spink
,{■ Co., In re, 81 L. J. Ch. 55; [1911] 2 Ch.
430; 105 L. T. 364; 19 Manson, 65.
" Contract of tenancy current at the com-
mencement of the Act."] — See Kedwell and
Flint, In re. 80 L. J. K.B. 707 ; [1911] 1 K.B.
797; 104 L. T. 151; 55 S. J. 311.
"Contrary intention."] — See Cooper, In re;
Cooper V. Cooper, 82 L. J. Ch. 222; [1913]
1 Ch. 350; 108 L. T. 293; 57 S. J. 389
Rayer, In re; Rayer v. Rayer, 82 L. J
Ch. 461; [1913] 2 Ch. 210; 109 L. T. 304
57 S. J. 663; and Daniels, In re; Weeks v
Daniels, 81 L. J. Ch. 509; [1912] 2 Ch. 90
106 L. T. 792; 56 S. J. 519.
" Convicted."! — See Rex v. Rab Johns,
82 L. J. K.B: 994; [1913] 3 K.B. 171;
109 L. T. 414 ; 77 J. P. 435 ; 23 Cox C.C. 553 ;
57 S. J. 665; 29 T. L. R. 614.
" Conviction."] — See Rex v. Machardy,
80 L. J. K.B. 1215; [1911] 2 K.B. 1144;
105 L. T. 556 ; 55 S. J. 754; 28 T. L. R. 2.
" Corporation."] — See Plumbers Co. v.
London County Council, 108 L. T. 655;
77 J. P. 302; 11 L. G. R. 480; 23 Cox C.C.
355; 29 T. L. R. 424.
"Costs of the execution."] — See Rogers.
In re; Sussex (Sheriff), ex parte, 80 L. J.
K.B. 418; [1911] 1 K.B. 641; 103 L. T. 883;
18 Manson, 22; 55 S. J. 219; 27 T. L. R. 199.
" Coarse authorized or required by these
Rules."]- See The Hero, 81 L. J. P. 27;
[1912] A.C. 300: 106 L. T. 82; 12 Asp. M.C.
108; 56 S. J. 269; 28 T. L. R. 216.
" Court in law or recognised by law."] —
See Attwood v. Chapman, 83 L. J. K.B. 1666 ;
[1914] 3 K.B. 275 : 111 L. T. 726 : 30 T. L. R.
596.
"Criminal cause or matter.] — See Rex v
Brixton Prison (Governor); Savarkar, ex parte
80 L. J. K.B. 57; [1910] 2 K.B. 1056
103 L. T. 473 : 54 S. J. 635 ; 26 T. L. R. 561
Scott V. Scott (No. 1), 82 L. J. P. 74
[1913] A.C. 417 ; 109 L. T. 1 ; 57 S. J. 498
29 T. L. R. 520; and Rex v. Wiltshire
Justices; Jay, Ex parte, 81 Li. J. K.B. 518;
[1912] 1 K.B. 566: 106 L. T. 364; 76 J. P.
169 ; 10 L. G. R. 353 : 56 S. J. 343 ; 28 T. L. R.
255; 22 Cox C.C. 737.
"Current dividends."! — Pee Raven. In re;
Spencer v. Raven, 111 L. T. 938.
"Custody, charge or care" of Child.! —
See Liverpool Society for Prevention of Cruelty
to Children v. Jories, 84 L. J. K.B. 222;
[1914] 3 K.B. 813 ; 111 L. T. 806 ; 79 J. P. 20 ;
12 L. G. R. 1103 ; 58 S. J. 723 ; 30 T. L. R. 584.
1849
WOEDS.
1850
"Customary steamship despatch."] — See
The Kingsland, 80 L. J. P. 33; [1911] P. 17;
105 L. T. 143 ; 16 Com. Cas. 18 ; 27 T. L. E. 75.
" Damage by collision."] — See The Upceme,
81 L. J. P. 110; [1912] P. 160; 28 T. L. R.
370.
"Damage done by any ship."] — See The
Rigel, 81 L. J. P. 86; [1912] P. 99; 106 L. T.
648; 28 T. L. R. 251; [1912] W.C. Eep. 351.
"Damage or loss."] — See The Cairnbahn
(No. 1), 83 L. J. P. 11; [1914] P. 25;
110 L. T. 230; 12 Asp. M.C. 455 ; 30 T. L. R.
82.
" Damage preventing the working of the
vessel."] — See Burrell v. Green it Co., 83 L.J.
K.B. 499; [1914] 1 K.B. 293; 109 L. T. 970;
19 Com. Cas. 81; 12 Asp. M.C. 411.
" Danger."] — See Thorneycroft v. Archibald,
[1913] S. C. (J.), 45.
" Dangerous goods."] — See North-Eastern
Railway v. Reckitt, 109 L. T. 327 ; 29 T. L. E.
573.
" Dangerous structure."] — See London
County Council v. Jones, 81 L. J. K.B. 948;
[1912] 2 K.B. 504 ; 106 L. T. 872 ; 76 J. P. 293 ;
10 L. G. E. 471.
" Deed."] — See Henderson's Trustees v.
Inland Revenue Commissioners, [1913] S. C.
987.
"Deemed to be insolvent."] — See The
Feliciana, 59 S. J. 546.
" Defect."]— See Barry v. Minturn, 82 L. J.
K.B. 1193; [1913] A.C. 584; 109 L. T. 573;
77 J. P. 437 ; 11 Ij. G. E. 1087 ; 57 S. J. 715 ;
29 T. L. E. 717.
"Defect" in "towing gear."] — See The
West Cock, 80 L. J. P. 97; [1911] P. 208;
104 L. T. 736 ; 55 S. J. 329; 27 T. L. R. 301.
"Defence arising out of the contract."] —
See Pichcrsgill v. London and Provincial
Marine and General Insurance Co., 82 L. J.
K.B. 130; [1912] 3 K.B. 614; 107 L. T. 305;
18 Com. Cas. 1 ; 12 Asp. M.C. 263 ; 57 S. J. 11 ;
28 T. L. R. 591.
"Delivery as required."] — See Jackson v.
Rotex Motor and Cycle Co., 80 L. J. K.B. 38;
[1910] 2 K.B. 937 ;" 103 L. T. 411.
"Department."] ^ See Pickles v. Foster,
82 L. J. K.B. 121; [1913] 1 K.B. 174;
108 L. T. 106 ; 20 Manson, 106 ; 6 Tax Cas. 131 ;
29 T. L. R. 112.
"Dependants."] — See Neto Monckton Col-
lieries V. Keeling, 80 L. J. K.B. 1205; [1911]
A.C. 648; 105 L. T. 337; 55 S. J. 687;
27 T. L. R. 551.
" Deposit of money."] -
Hunt, 109 L. T. 245;
23 Cox C.C. 427.
- See Boulton v.
77 J. P. 337;
" Designated."] — See Newton v. Marylebone
Borough Council, 78 J. P. 169 ; 12 L. G. R. 713.
"Designated an officer."] — See Newton v.
Marylebone Borough Council, 84 L. J. K.B-
1721 ; 79 J. P. 410 ; 13 L. G. R. 711 ; 59 S. J.
493.
" Device for catching fish."] — See Maw v.
Holloway, 84 L. J. K.B. 99; [1914] 3 K.B.
594; 111 L. T. 670; 78 J. P. 347.
" Die seised."] — See Norman, In re, 58 S. J.
706.
" Die without issue."] — See Dunn v,
Morgan, 84 L. J. Ch. 812; 113 L. T. 444.
" Difference."] — See London and North-
western Railway v. Jones, 84 L. J. K.B.
1268; [1915] 2 K.B. 35; 113 L. T. 724.
" Directing her course."]— See The Tempusr
83 L. J. P. 33; [1913] P. 166; 109 L. T. 669:
12 Asp. M.C. 390 ; 29 T. L. R. 543.
"Direct tax."] — See Cotton v. Regem,
83 L. J. P.C. 105; [1914] A.C. 176; 110 L. T.
276; 30 T. L. R. 71.
" Dispute arising during the tenancy."] —
See May v. Mills, 30 T. L. R. 287.
"Disqualified premises."] — See Rex v. Hull
Licensing Justices, 82 L. J. K.B. 946; [1913]
2 K.B. 425; 109 L. T. 184; 77 J. P. 303;.
29 T. L. R. 500.
" Distinct contracts."] — See Kent County
Gas Light and Coke Co., In re, 82 L. J. Ch.
28; [1913] 1 Ch. 92; 107 L. T. 641; 19 Man-
son, 358; 57 S.J. 112.
" Distinctive mark."] — See Lea's Trade
Mark, In re, 82 L. J. Ch. 241; [1913] 1 Ch.
446 ; 108 L. T. 355 ; 30 R. P. C. 216 ; 57 S. J.
373; 29 T. L. E. 334; and Registrar of Trade
Marks v. Du Cros, 83 L. J. Ch. 1; [1913]
A.C. 624; 109 L. T. 687; 30 E. P. C. 660:
57 S. J. 728; 29 T. L. E. 772.
"Dividend."] — See Swan Brewery Co. v.
Regem, 83 L. J. P.C. 134; [1914] A.C. 231;
110 L. T. 211 ; .30 T. L. E. 199.
" Dockyard port."] — See Denaby and Cadeby
Main Collieries v. Anson, 80 L. J. K.B. 320;
[1911] 1 K.B. 171; 103 L. T. 349; 11 Asp.
M.C. 471; 54 S. J. 748; 26 T. L. E. 667.
"Documents."] — See Rex v. Godstone
Rural Couiicil, 80 L. J. K.B. 1184; [1911]
2 K.B. 465; 105 L. T. 207; 75 J. P. 413;
9 L. G. E. 665; 27 T. L. E. 424.
"Domestic purposes."] — See Metropolitan
Water Board v. Avery, 83 L. J. K.B. 178
[1914] A.C. 118; 109 Jj. T. 762; 78 J. P. 121
12 L. G. E. 95 ; 58 S. J. 171 : 30 T. L. E. 189
and Metropolitan Water Board v. Colley's
Patents, Lim., 81 L. J. K.B. 126; [1912]
1851
WOEDS.
1852
A.C. 24; 105 L. T. 674; 9 L. G. K. 1159;
76 J. P. 33; 56 S. J. 51; 28 T. L. K. 48.
" Domestic servants."] — See Lawson, In re;
Wardley v. Bringloe, 83 L. J. Ch. 519; [1914]
1 Ch. 682; 110 L. T. 573; 58 S. J. 320:
30 T. L. E. 335.
"Drain" or "Sewer."] — See Kershaw v.
Paine, 78 J. P. 149 ; 12 L. G. E. 297.
" Due cause shewn."] — See Rubber and
Produce Investment Trust, In re, 84 L. J.
Ch. 534 ; [1915] 1 Ch. 382 ; 112 L. T. 1129 ;
[1915] H. B. E. 120; 31 T. L. E. 253.
" Dues."] — See Societa Anonima Ungherese
di Armamenti Marittimo v. Hamburg South
American Steamship Co., 106 L. T. 957;
17 Com. Cas. 216; 12 Asp. M.C. 228.
"During the possession of the tenant."] —
See Leicis v. Davies, 82 L. J. K.B. 631;
[1913] 2 K.B. 37 ; 108 L. T. 606.
"Dwelling house."] — See Inland Revenue
Commissioners \. Devonshire (Duke), 83 L. J.
K.B. 706: [1914] 2 K.B. 627; 110 L. T. 659;
30 T. L. E. 209.
" Dwelling house occupied as such by not
more than two families."] — See London County
Council V. Cannon Brewery Co., 80 L. J.
K.B. 258: [1911] 1 K.B. 235; 103 L. T. 574;
74 J. P. 461 ; 8 L. G. E. 1094.
" Dwelling house wholly let out in apart-
ments or lodgings."] — See Rex v. Roberts;
Stepney Borough Council, Ex parte, 84 L. J.
K.B. 1577 ; [1915] 3 K.B. 313; 31 T. L. E. 485.
" Earned income."] — See Inland Revenue v.
ShieVs Trustees, [1915] S. C. 159 ; 6 Tax Cas.
583.
" Eldest son."] — See Wise, In re; Smith v.
Waller, 82 L. J. Ch. 25; [1913] 1 Ch. 41;
107 L. T. 613 ; 57 S. J. 28.
"Embezzlement."] — See Debenhams, Lim.
V. Excess Insurance Co., 28 T. L. E. 505.
" Emoluments " of officer.] — See Lawson v.
Marlborough Guardians, 81 L. J. Ch. 525;
[1912] 2 Ch. 154 ; 106 L. T. 838 ; 76 J. P. 305 ;
10 L. G. E. 443 ; 56 S. J. 503 ; 28 T. L. E. 404.
" Employed about the business of a shop."]
—See George v. James, 83 L. J. K.B. 303:
ri9141 1 K.B. 278; 110 L. T. 316; 78 J. P.
1.56: 12 L. G. E. 403; 24 Cox C.C. 48;
30 T. L. E. 230.
" Employed and bestowed."] — See Rowe, In
re. 30 T. L. E. 528.
"Employed contributor."] — See O'Calla-
ghan v. Irish Insurance Commissioners, [1915]
2 Ir. E. 262 ; [1915] W.C. & I. Eep. 412.
" Employer."! — See Wilmerson v. Lynn
and Hamburg Steamship Co.. 82 Ij. J. K.B.
1064; [1913] 3 K.B. 931; [1913] W.C. &
I. Eep. 633; 109 L. T. 53; 57 S. J. 700;
29 T. L. E. 652.
"Enemy."] — See Societe Anonyme Beige
des Mines d'Aljustrel (Portugal) v. .Anglo-
Belgian Agency, 84 L. J. Ch. 849; [1915]
2 Ch. 409; 113 L. T. 581; 59 S. J. 679;
31 T. L. E. 624.
"Entering or being" upon land.] — See
Pratt V Martin, 80 L. J. K.B. 711; [1911]
2 K.B. 90; 105 L. T. 49; 75 J. P. 328:
22 Cox C.C. 442; 27 T. L. E. .377.
"Entire exclusion of the donor."] — See
Att.-Gen. v. Seccombe, 80 L. J. K.B. 913;
[1911] 2 K.B. 688; 105 L. T. 18.
" Event."] — See Howell v. Dering, 84 L. J.
K.B. 198; [1915] 1 K.B. 54; 111 L. T. 790;
58 S. J. 669 ; and Slatford v. Erlebach, 81 L. J.
K.B. 372; [1912] 3 K.B. 155; 106 L. T. 61.
" Exhibition."] — See Att.-Gen. v. Vitagraph
Co., 84 L. J. Ch. 142; [1915] 1 Ch. 206;
112 L. T. 245; 79 J. P. 150; 13 L. G. E. 148;
59 S. J. 160; 31 T. L. E. 70.
" Exists for an illegal purpose."] — See
Middle Age Pension Friendly Society. In re,
84 L. J. K.B. 378; [1915] 1 K.B. 432;
112 L. T. 641.
" Expenses caused by the desertion."] — See
Deacon v. Quayle, 81 L. J. K.B. 409; [1912]
1 K.B. 445; 106 L. T. 269: 76 J. P. 79;
12 Asp. M.C. 125; and Halliday v. Taffs,
80 L. J. K.B. 388; [1911] 1 K.B. 594:
104 L. T. 188 ; 11 Asp. IM.C. 574 ; 75 J. P. 165 :
27 T. L. E. 186.
" Expenses wholly or exclusively laid out
for the purposes of such trade."] — See Usher's
Wiltshire Brewery v. Bruce, 84 L. J. K.B.
417: [1915] A.C. 433: 112 L. T. 651;
6 Tax Cas. 399 ; 59 S. J. 144 ; 31 T. L. E. 104.
"Exposed to sale, or on sale by retail."] —
See McNair v. Terroni, 84 L. J. K.B. 357;
[1915] 1 K.B. 526 : 112 L. T. 503 ; 79 J. P.
219 ; 13 L. G. E. 377 ; 31 T. L. E. 82.
"Extraordinary expenses."] — See Billericay
Rural Council v. Poplar Guardians, 80 L. J.
K.B. 1241 : [1911] 2 K.B. 801 ; 105 L. T. 476 :
75 J. P. 497 ; 9 L. G. E. 796.
" Extraordinary traffic."] — See Ledbury
Rural Council v. Somerset. 84 L. J. K.B. 1297 :
113 L. T. 71 : 79 J. P. 327 : 13 L. G. E. 701 :
59 S. J. 476; 31 T. L. E. 295.
"Failure."] — See Hopper v. St. John's
College. Cambridge, 31 T. L. E. 139.
" Fair."l — See Walker v. Murphy, 83 L. J.
Ch. 917; [1915] 1 Ch. 71; 112 t. T. 189;
79 J. P. 137; 13 L. G. E. 109; 59 S. J. 88.
"Fair and reasonable."] — See Ray v. New-
ton, 82 L. J. K.B. 125: [1913] 1 K.B. 249;
108 L. T. 313; 57 S. J. 130.
1853
WORDS.
1854
"Farm building."] — See Hadham Rural
Council V. Crallan, 83 L. J. Ch. 717; [1914]
2 Ch. 138; 111 L. T. 154; 78 J. P. 361;
12 L. G. E. 707 ; 58 S. J. 635 ; 30 T. L. R. 514.
"Final and conclusive. "] — See Murphy v.
Regem, 80 L. J. P.C. 121; [1911] A.C. 401;
104 L. T. 788: 75 J. P. 417; 9 L. G. R. 675;
55 S. J. 518; 27 T. L. R. 453.
"Final judgment or order."] — See Debtor
(No. 837 of 1912). In re. 81 L. J. K.B. 1225:
[1912] 3 K.B. 242: 107 L. T. 506: 19 Manson,
317; 56 S. J. 651.
"Final order."] — See Wills v. McSherry,
83 L. J. K.B. 596; [1914] 1 K.B. 616;
110 L. T. 65: 78 J. P. 120; 12 Asp. M.C. 426.
"First publication."] — See Francis, Day if
Hunter v. FeJdman <f- Co., 83 L. J. Ch. 906;
[1914] 2 Ch. 728; 111 L. T. 521 ; 59 S. J. 41.
"Fish."]— See Leavett v. Clark, 84 L. J.
K.B. 2157; [1915] 3 K.B. 9; 113 L. T. 424;
79 J. P. 396 : 13 L. G. R. 894 ; 31 T. L. R.
424.
"Fixed engines."] — See Irish Societii v.
Harold, 81 L. J. P.C. 162; [1912] A.C. 287;
106 L. T. 130: 28 T. L. R. 204.
" For the benefit of an enemy."] — See
Schmitz V. Van der Veen d Co., 84 L. J.
K.B. 861 ; 112 L. T. 991 ; 31 T. L. R. 214.
"For the time therein mentioned."] ^ — See
The Wills, No. 66, 83 L. J. P. 162;
30 T. L. R. 676.
" Force majeure."] — See Matsoukis v.
Priestman ,f Co., 84 L. J. K.B. 967; [1915]
1 K.B. 681; 113 L. T. 481; 20 Com. Cas. 252.
" Foreign possession."] — See Drummond v.
Collins, 84 L. J. K.B. 1690; [1915] A.C.
1011 : 113 L. T. 665 ; 6 Tax Cas. 525 ; 59 S. J.
577; 31 T. L. R. 482.
"Forged instrument."] — See Rexv. Howse,
107 L. T. 239: 76 J. P. 151; 56 S. J. 225;
28 T. L. R. 186; and Rex v. Cade, 83 L. J.
K.B. 796; [1914] 2 K.B. 209; 110 L. T. 624;
78 J. P. 240: 24 Cox C.C. 131; 58 S. J. 288;
30 T. L. R. 289.
" Forged stamp."] — See Rex v. Lowden,
83 L. .7. K.B. 114; [1914] 1 K.B. 144:
109 L. T. 832 : 78 J. P. Ill ; 23 Cox C.C. 643;
58 S. J. 157; 30 T. L. R. 70.
" Forthwith."! — See Woods v. Winskill,
82 T;. J. rii. H7 : [1913] 2 Ch. 303; 109 L. T.
399; 20 Manson, 261 : 57 S. J. 740.
"Found in or upon any dwelling-house."] —
See Moran v. Jones. 101 \,. T. 921 : 75 J. P.
411 ; 22 Cox C.C. 474 : 27 T. T.. R. 421.
" Found without visible means of support."]
—See Rex v. Radcliffe, 84 L. J. K.B. 2196;
[1915] 3 K.B. 418; 79 .7. P. 546; 13 L. G. E.
1192: 31 T. T.. R. 610.
" Fraud in playing at or with cards."] — See
Rex V. Brixton Prison {Governor) ; Sjoland,
Ex parte, 82 L. J. K.B. 5; [1912] 3 K.B. 568;
77 J. P. 23; 29 T. L. R. 10.
" Free from all deductions."] — See Egmont's
(Earl) Settled Estates, In re; Lefroy v.
Egmont, 81 L. J. Ch. 2-50; [1912] 1 Ch. 251;
105 L. T. 292.
" Free from all taxes and assessments what-
soever,"]— See .Associated Newspapers, Lim.
V. London Corporation (No. 1), and lb. (No. 2),
83 L. J. K.B. 979, 988; [1914] 2 K.B. 603,
822; 110 L. T. 796, 975; 78 J. P. 225, 209;
12 L. G. R. 372, 426; 58 S. J. 318;
30 T. L. R. 337, 364.
"Free of all duty."] — See Snape. In re:
Elam V. Phillips, 84 L. J. Ch. 803; [1915]
2 Ch. 179; 113 L. T. 439; 59 S. J. 562.
" Free of legacy duty."] — See Scott, In re ;
Scott V. Scott {No. 1), 84 L. J. Ch. 366;
[1915] 1 Ch. 592 ; 112 L. T. 1057 ; 31 T. L. R.
227.
" Fugitive criminal."] — See Moser, Ex
parte, 84 L. J. K.B. 1820; [1915] 2 K.B.
698 ; 113 L. T. 496 ; 31 T. L. R. 384.
" Full and reasonable indemnity."] — See
House Property Co. of London v. Whiteman,
82 L. J. K.B. 887; [1913] 2 K.B. 382;
109 L. T. 43; 77 J. P. 319.
" Full consideration in money or money's
worth."] — See Att.-Gen. v. Boden, 81 L. J.
K.B. 704; [1912] 1 K.B. 539; 105 L. T. 247.
" Furious driving."] — See Chatterton v.
Parker, 111 L. T. 380; 78 J. P. 339;
12 L. G. R. 1205.
" Game."] — See Cook v. Trevener, 80 L. J.
K.B. 118; [1911] 1 K.B. 9; 103 L. T. 725:
74 J. P. 469; 27 T. L. R. 8.
" Garden."] — See Stevens v. National Tele-
phone Co., [1914] 1 Ir. R. 9.
" Get-up."]— See Edge v. NichoUs, 80 L. J.
Ch. 744: [1911] A.C. 693: 105 L. T. 459:
28 R. P. C. 582 ; 55 S. J. 737 ; 27 T. T;. R. 555.
"Giving a bonus."] — See United Buildings
Corporation v. Vancouver City, 83 Tj. J. P.C.
363; 111 \i. T. r,n3.
"Good and sufficient cause."] — See Bennett
and Fowler, In re, 82 L. J. K.B. 713: [1913]
2 Iv.B. 537 ; 108 L. T. 497 ; 77 J. P. 281.
" Good cause."] — See Hammond v. Jackson,
83 7j. J. K.B. 380: [1914] 1 K.B. 241:
110 Tv. T. 110.
"Goods."] — See Harwich v. Symond,
110 T.. T. 1016: 30 T. L. R. 403.
" Goods carried into any port in England.""!
—See The Cap Blanco. 83 Ti. J. P. 23: [1913]
1855
WOEDS.
1856
P. 130; 109 L. T. 672; 12 Asp. M.C. 399; i
29 T. L. E. 557. j
Goods "comprised" in.] — See Ja^j's Fur- '
nishing Co. v. Brand d- Co., 84 L. J. K.B. 867 ; |
[1915] 1 K.B. 458 ; 112 L. T. 719 ; 59 S. J. 160 ;
31 T. L. E. 124. j
" Goods imported for transhipment only."]
— See British Oil and Cake Mills v. Port of
London Authority, 83 L. J. K.B. 1777 ; [1914]
3 K.B. 1201; 19 Com. Cas. 420; 30 T. L. E.
667 ; and Anglo-American Oil Co. v. Port of
London Authority, 88 L. J. K.B. 125; [1914]
1 K.B. 14 ; 109 L. T. 862 ; 19 Com. Cas. 23 ;
12 Asp. M.C. 419 ; 30 T. L. E. 14.
"Grantor of the lease."] — See Bodega Co.
V. Read, 84 L. J. Ch. 36; [1914] 2 Ch. 757;
111 L. T. 884; 59 S. J. 58; 31 T. L. E. 17.
" Grave misconduct."] — See Poad v.
Scarborough Guardians, 84 L. J. K.B. 209;
[1914] 3 K.B. 959; 111 L. T. 491; 78 J. P.
465; 12 L. G. E. 1044.
"Gross Yalue."] — See Lumsden v. Inland
Revenue Commissioners, 82 L. J. K.B. 1275;
[1913] 3 K.B. 809 ; 109 L. T. 351 ; 29 T. L. E.
759.
"Halt-cousin."] — See Chester, In re; Ser-
vant V. Hills, 84 L. J. Ch. 78; [1914]
2 Ch. 580.
" Harsh and unconscionable."] — See Halsey
V. Wolfe, 84 L. J. Ch. 809; [1915] 2 Ch. 330;
113 L. T. 720, and other cases sub tit.,
Money-lender.
" Head oflBcer."] — See Sacchann Corpora-
tion V. Chemische Fabrik von Heyden Actien-
gesellschaft, 80 L. J. K.B. 1117; [1911]
2 K.B. 516; 104 L. T. 886.
" Hindermost platform."] — See Monkman
V. Stickney, 82 L. J. K.B. 992; [1913] 2 K.B.
377 ; 109 L. T. 142 ; 77 J. P. 368 ; 11 L. G. E.
612; 23 Cox C.C. 474.
" Holder " of Cheque.] — See Nicholls v.
Evans, 83 L. J. K.B. 301; [1914] 1 K.B. 118;
109 L. T. 990; 30 T. L. E. 42.
"Holder" of Order for Goods.] — See Civil
Service Co-operative Society v. Chapman,
30 T. L. E. 679.
"Holder" of Shares.] — PauVs Trustee v.
Justice, [1912] S. C. 1303.
"Hotels."] — See Inland Revenue Commis
sioners v. Truman, Hanbury, Buxton d: Co.
82 L. J. K.B. 1042; [1913] A.C. 650
109 L. T. 337; 77 J. P. 397; 57 S. J. 662
29 T. L. E. 661.
House " divided into, and let in different
tenements."] — See Farmer v. Cotton's
Trustees, 84 L. J. P.C. 137 ; [1915] A.C. 922;
113 L. T. 657 ; 59 S. J. 611 ; 31 T. L. E. 478.
" House or building let out in separate tene-
ments."]— See Marylebone Assessment Com-
mittee V. Consolidated London Properties,
Lim., 83 L. J. K.B. 1251; [1914] A.C. 870;
111 L. T. 553 ; 78 J. P. 393 ; 12 L. G. E. 885 ;
58 S. J. 593; 30 T. L. E. 551.
" House or other building occupied by him-
self."]— See Douglas v. Sanderson, 80 L. J.
K.B. 294; [1911] 1 K.B. 166; 103 L. T. 841:
75 J. P. 108; 9 L. G. E. 1; 2 Smith, 234;
55 S. J. 94; 27 T. L. E. 81.
" Idle and disorderly person."] — See Mathers
V. Penfold, 84 L. J. K.B. 627; [1915] 1 K.B.
514 ; 112 L. T. 726 ; 79 J. P. 225 ; 13 L. G. E.
359; 59 S. J. 235; 31 T. L. E. 108.
" Immediately after."] — See Barker v.
Lewis & Peat, 82 L. J. K.B. 843; [1913]
3 K.B. 34; 108 L. T. 941; 57 S. J. 577;
29 T. L. E. 565.
"Immoral act."] — See Ely (Bishop) v.
Close, [1913] P. 184; 29 T. L. E. 668.
" In accordance with."] — See Rex v.
Sunderland Customs and Excise Commis-
sioners, 83 L. J. K.B. 555; [1914] 2 K.B. 390;
110 L. T. 527 ; 78 J. P. 185 ; 12 L. G. E. 580 ;
30 T. L. E. 298.
" In a due course of administration."] — See
Fleetwood and District Electric Light and
Power Syndicate, In re, 84 L. J. Ch. 374;
[1915] 1 Ch. 486; 112 L. T. 1127; [1915]
H. B. E. 70; 59 S. J. 383; 31 T. L. E. 221.
"In all boroughs."] — See Rex v. Roberts;
Battersea Borough Council, Ex parte, 83 L. J.
K.B. 146; [1914] 1 K.B. 369; 109 L. T. 466;
77 J. P. 403; 11 L. G. E. 913; 57 S. J. 644.
"In and about any action."] — See House
Property Co. of London v. Whiteman, 82 L. J.
K.B. 887; [1913] 2 K.B. 382; 109 L. T. 43;
77 J. P. 319.
"In any situation fronting a street."] — See
Carshalton Urban Council v. Burrage, 80 L. J.
Ch. 500; [1911] 2 Ch. 133; 104 L. T. 306;
75 J. P. 250 ; 9 L. G. E. 1037 ; 27 T. L. E. 280.
" In any wrapper."] — See Williams v.
Baker, 80 L. J. K.B. 545; [1911] 1 K.B. 566;
104 L. T. 178; 75 J. P. 89; 9 L. G. E. 178.
" In as full and ample a way."] — See
Beard v. Moira Colliery Co., 84 L. J. Ch. 155;
[1915] 1 Ch. 257 ; 112 L. T. 227 ; 59 S. J. 103.
" In consequence of any compulsory pro-
cess."]—See Rex V. Noel, 84 L. J. K.B. 142;
[1914] 3 K.B. 848; 112 L. T. 47.
" In course of delivery."] — See Helliwell v.
Haskins, 105 L. T. 438; 9 L. G. E. 1060;
75 J. P. 435 ; 27 T. L. E. 463 ; 22 Cox C.C. 603.
" In full satisfaction."] — See Hirachand
Punamchand v. Temple, 80 L. J. K.B. 1155;
[1911] 2 K.B. 330; 105 L. T. 277; 55 S. J.
519; 27 T. L. E. 430.
1857
WOEDS.
1858
In "port."] — See The Routnanian, 84 L. J.
P. 65; [1915] P. 26; 112 L. T. 464; 59 S. J.
206; 31 T. L. E. 111.
" In port and at sea, in docks."] — See Stott
(Baltic) Steamers, Litn. v. Marten, 83 L. J.
K.B. 1847 ; [1914] 3 K.B. 1262 ; 19 Com. Cas.
438 ; 30 T. L. R. 686.
" Incapacity for work."] — See Ball v. Hunt,
80 L. J. K.B. 655; [1911] 1 K.B. 1048;
104 L. T. 327 ; 55 S. J. 383; 27 T. L. E. 323.
"Income from personal exertion."] — See
Syme v. Victoria Commissioner of Taxes,
84 L. J. P.C. 39; [1914] A.C. 1013; 111 L. T.
1043; 30 T. L. R. 689.
" Inconsistent with good estate manage-
ment."] — See Bonnett and Fowler, hi re,
82 L. J. K.B. 713; [1913] 2 K.B. 537;
108 L. T. 497 ; 77 J. P. 281.
"Incumbrance."] — See Hodgson's Settled
Estates, In re ; Altamont (Countess) v. Forsyth,
81 L. J. Ch. 376; [1912] 1 Ch. 784; 106 L. T.
456; and Stamford and Warrington (Earl),
In re; Payne v. Grey (No. 2). 80 L. J. Ch.
361; [1911] 1 Ch. 648; 105 L. T. 12; 75 J. P.
346; 9 L. G. E. 719; 55 S. J. 483.
"India."] — See Statham v. Statham,
81 L. J. P. 33; [1912] P. 92; 105 L. T. 991;
28 T. L. R. 180.
"Indorsee" of Cheque.] — See Nicholls v.
Evans, 83 L. J. K.B. 301; [1914] 1 K.B. 118;
109 L. T. 990; 30 T. L. R. 42.
"Inflammable" Films.] — See Victoria Pier
Syndicate v. Reeve, 76 J. P. 374; 10 L. G. R.
967 ; 28 T. L. R. 443.
" Inhabitant occupier."] — See Kent v.
Fittall, 81 L. J. K.B. 82; [1911] 2 K.B. 1102;
103 L. T. 668: 9 L. G. R. 27; 75 J. P. 113;
2 Smith, 279; 27 T. L. R. 79.
"Injury."] — See Woodcock v. London and
NoTth-Western Railway, 82 L. J. K.B. 921;
[1913] 3 K.B. 139; [1913] W.C. & I. Rep.
563; 109 L. T. 253; 29 T. L. E. 566.
" Inside."] — See Phesse v. Fisher, 84 L. J.
K.B. 277; [1915] 1 K.B. 572; 112 L. T. 462;
79 J. P. 174 ; 13 L. G. E. 269 ; 31 T. L. R. 65.
"Insolvent."] — See London and Counties
Assets Co. V. Brighton Grand Concert Hall
and Picture Palace, 84 L. J. K.B. 991 ; [1915]
2 K.B. 493 ; 112 L. T. 380 ; [1915] H. B. E. 83.
" Instructed and employed independently of
any owner of the property."! — See Solotnon,
In re; Nore v. Meyer, 81 L. J. Ch. 169;
[1912] 1 Ch. 261 ; 105 L. T. 951 ; 56 S. J. 109 ;
28 T. L. E. 84.
"Instrument."] — See Cherry's Trusts, In
re, 83 I.. .7. Ch. 142; [1914] 1 Ch. 83;
110 L. T. 16; 58 S. J. 48; 30 T. L. R. 30.
" Insurance effected under the mortgage
deed."]— See Sinnott v. Bowden, 81 L. J.
Ch. 832; [1912] 2 Ch. 414; [1913] W.C. &
I. Rep. 464; 107 L. T. 609; 28 T. L. E. 594.
" Insurance on his life."] — See Gould v.
Curtis, 81 L. J. K.B. 634; [1912] 1 K.B. 635;
106 L. T. 680; 28 T. L. E. 274.
"Interest in expectancy."] — See Mudge, In
re, 83 L. J. Ch. 243; [1914] 1 Ch. 115:
109 L. T. 781 ; 58 S. J. 117.
"Interest in land."] — See Dawson, In re;
Pattisson v. Bathurst, 84 L. J. Ch. 476:
[1915] 1 Ch. 626; 113 L. T. 19; 59 S. J. 363;
31 T. L. E. 277; and Fox, In re; Brooks v.
Marston, 82 L. J. Ch. 393; [1913] 2 Ch. 75;
108 L. T. 948.
" Interest insured."] — See Heioitt v. Wilson,
84 L. J. K.B. 1337; [1915] 2 K.B. 739;
113 L. T. 304; 20 Com. Cas. 241; 31 T. L. E.
333.
" Interference with main structure."] — See
Genders v. London County Council, 84 L. J.
Ch. 42; [1915] 1 Ch. 1; 112 L. T. 365;
79 J. P. 121; 12 L. G. R. 1063; 59 S. J. 58;
31 T. L. R. 34.
" Invented word."] — See Sociite le Fer-
ment's AppHcatio7i, In re, 81 L. J. Ch. 724;
107 L. T. 515 ; 29 R. P. C. 497; 28 T. L. R.
490.
" Invoice required by this Act."] — See
Kyle V. Jewers, 84 L. J. K.B. 255 ; 112 L. T.
422 ; 79 J. P. 176 ; 13 L. G. R. 260.
"Issuance" of policy.] — See Allis Chalmers
Co. V. Fidelity and Deposit Co. of Maryland,
111 L. T. 327 ; 30 T. L. R. 445.
"Issue."] — See Howell v. Dering, 84 L. J.
K.B. 198; [1915] 1 K.B. 54; 111 L. T. 790;
58 S. J. 669; and Slatford v. Erlebach,
81 L. J. K.B. 372; [1912] 3 K.B. 155;
106 L. T. 61.
" Judgment."] — See Cowern
[1914] W. N. 349.
V. Nield,
Judgment debt " still unsatisfied."] — See
White V. Stenning, 80 L. J. K.B. 1124;
[1911] 2 K.B. 418; 104 L. T. 876; 55 S. J.
441 ; 27 T. L. R. 395.
" Just and equitable."] — See Clandown
Colliery Co., In re, 84 L. J. Ch. 420; [1915]
1 Ch. 369: 112 L. T. 1060; [1915] H. B. R.
93; 59 S. J. 350.
"Justices sitting in petty sessions."] — See
Huish V. Liverpool Justices, 83 L. J. K.B. 133 :
[1914] 1 K.B. 109 ; 110 Ti. T. 38 ; 78 J. P. 45 :
12 L. G. R. 15; 30 T. L. R. 25.
"Keep."] — See London County Council v.
Fairbank, 80 L. J. K.B. 1032; [1911] 2 K.B.
32 ; 105 L. T. 46 ; 75 J. P. 356 : 9 L. G. R. 549.
59
1859
WORDS.
1860
"Land covered with water."] — See Mersetj
Docks and Harbour Board v. Birkenhead
Corporation, 84 L. J. K.B. 1207; [1915]
•2 K.B. 312; 113 L. T. 183; 79 J. P. 818;
13 L. G. K. 764 ; 31 T. L. E. 323.
Land " used bona fide for any business."] —
See Brake v. Inland Revenue Commissioners,
«4 L. J. K.B. 759; [1915] 1 K.B. 731;
112 L. T. 944; 31 T. L. E. 177.
" Land used only as a railway."] — See
Lancashire and Yorkshire Railway v. Liver-
pool Corporation, 83 L. J. K.B. 1273;
111 L. T. 596 ; 78 J. P. 409 ; 12 L. G. E. 771 ;
58 S. J. 653; 30 T. L. E. 563.
"Lawfully."] — See Lemy v. Watson,
84 L. J. K.B. 1999; [1915] 3 K.B. 731;
13 L. G. E. 1323 ; 32 E. P. C. 508 ; 31 T. L. E.
612.
" Lawful public meeting."] — See Burden v.
Rigler, 80 L. J. K.B. 100; [1911] 1 K.B. 337;
103 L. T. 758; 75 J. P. 36; 9 L. G. E. 71;
27 T. L. E. 140.
" Laying out street."] — See Att.-Gen. v.
Dorin, 81 L. J. Ch. 225; [1912] 1 Ch. 369;
106 L. T. 18; 76 J. P. 181; 10 L. G. E. 194;
56 S. J. 123; 28 T. L. E. 105.
" Left or near side of the road."] — See
Bolton V. Everett, 105 L. T. 830; 9 L. G. E.
1050; 75 J. P. 534; 22 Cox C.C. 632.
"Legacy duty."] — See Scott, In re; Scott
V. Scott, 83 L. J. Ch. 694; [1914] 1 Ch. 847;
110 L. T. 809 ; 30 T. L. E. 345.
"Legal proceedings."] — See Boaler, In re,
83 L. J. K.B. 1629; [1915] 1 K.B. 21;
111 L. T. 497 ; 24 Cox C.C. 335 ; 58 S. J. 634 ;
30 T. L. E. 580.
" Licensed premises held under a lease."] —
See Watney, Combe, Reid if: Co. v. Berners,
84 L. J. K.B. 1561; [1915] A.C. 885;
113 L. T. 518: 79 J. P. 497; 59 S. J. 492;
31 T. L. E. 449.
" Lists, cards, or other documents relating
to betting."] — See Hodgson v. Macpherson,
[1913] S. C. (J.) 68.
" Literary work."] — See Libraco, Lim. v.
Shaw Walker, Lim. , 58 S. J. 48 ; 30 T. L. E. 22.
" Live and dead stock."] — See Cadogan
Settled Estates, In re, 31 T. L. E. 536.
Loss " by war, military or usurped power."]
—See Mitsui li Co. v. Mumford, 84 L. J. K.B.
514; [1915] 2 K.B. 27; [1915] W.C. & I. Eep.
169; 112 L. T. 556; 20 Com. Cas. 107;
59 S. J. 189; 31 T. L. E. 144.
" Loss of or damage to goods however
caused which can be covered by insurance."]
See Travers <i Sons, Lim. v. Cooper, 83 L. J.
K.B. 1787; [1915] 1 K.B. 73; 111 L. T. 1088;
20 Com. Caa. 44; 30 T. L. E. 703.
"Loss" of ship.] — See Seal v. Horlock,
84 L. J. K.B. 2240; [1915] 3 K.B. 627;
59 S. J. 716; 31 T. L. E. 619.
" Mainly used for the sale and consumption
of intoxicating liquor."] — See Pilkington v.
Ross, 83 L. J. K.B. 402; [1914] 3 K.B. 321;
111 L. T. 282 ; 78 J. P. 319 ; 12 L. G. E. 944 ;
30 T. L. E. 510.
"Mains."] — See Whittington Gas, Light,
and Coke Co. v. Chesterfield Gas and Water
Board, 83 L. J. Ch. 662; [1914] 2 Ch. 146;
111 L. T. 422 ; 78 J. P. 379 ; 12 L. G. E. 892 ;
58 S. J. 577 ; 30 T. L. E. 519.
" Maintain and keep efficient."] — See Board
of Education v. Rice, 80 L. J. K.B. 796;
[1911] A.C. 179; 104 L. T. 689; 75 J. P. 393;
9 L. G. E. 652 ; 55 S. J. 440 ; 27 T. L. E. 378 ;
and Gillow v. Durham County Council,
82 L. J. K.B. 206; [1913] A.C. 54; 107 L. T.
689 ; 11 L. G. E. 1 ; 77 J. P. 105 ; 57 S. J. 76 ;
29 T. L. E. 76.
"Majority in value."] — See " Slogger '
Automatic Feeder Co., In re; Hoare v. The
Company, 84 L. J. Ch. 587; [1915] 1 Ch. 478:
112 L. T. 579; [1915] H. B. E. 138:
59 S. J. 272.
" Making adverse claims."] — See iS^un Insur-
ance Office V. Galinsky, 83 L. J. K.B. 633;
[1914] 2 K.B. 545 ; 110 L. T. 358.
"Making" of Bedding.] — See Gamble v.
Jordan, 82 L. J. K.B. 743; [1913] 3 K.B. 149 ;
108 L. T. 1022 ; 77 J. P. 269 ; 11 L. G. E. 989 :
23 Cox C.C. 451 ; 29 T. L. E. 539.
" Making use of any port in the district."]
— See Cannell v. Lawther, Latta d Co.,
83 L. J. K.B. 1832; [1914] 3 K.B. 1135;
20 Com. Cas. 29.
" Male servant."] — See London County
Council V. Allen, 82 L. J. K.B. 432; [1913]
1 K.B. 9; 107 L. T. 853; 77 J. P. 48;
10 L. G. E. 1089; 23 Cox C.C. 266:
29 T. L. E. 30; and London County Council
V. Perry, 84 L. J. K.B. 1518; [1915] 2 K.B.
193; 113 L. T. 85; 79 J. P. 312; 13 L. G. E.
746; 31 T. L. E. 281.
"Manservant."] — See Bell, In re; Wright
V. Scrivener, 58 S. J. 517.
"Marketable security."] — See Deddington
Steamship Co. v. Inland Revenue Commis-
sioners, 81 L. J. K.B. 75 ; [1911] 2 K.B. 1001 ;
105 L. T. 482; 18 Manson, 373.
" Market price."] — See Charrington d Co.
V. Wooder, 83 L. J. K.B. 220 ; [1914] A.C. 71 ;
110 L. T. 548.
"Material facts."]— See Brooke v. Brooke
(No. 1), 81 L. J. P. 75; [1912] P. 136;
106 L. T. 766; 56 S. J. 382; 28 T. L. E. 314.
" Matter not being an action."] — See
Johnson v. Refuge Assurance Co., 82 L. J.
1
1861
WORDS.
1862
K.B. 411; [1913] 1 K.B. 259; 108 L. T. 242;
57 S. J. 128; 29 T. L. R. 127.
" May."] — See Calico Printers' Association
V. Booth, 82 L. J. K.B. 985; [1913] 3 K.B.
652; [1913] W.C. & I. Rep. 540; 109 L. T.
123; 57 S. J. 662; 29 T. L. R. 664; and
McHugh V. Union Bank of Canada, 82 L. J.
P.C. 65; [1913] A.C. 299; 108 L. T. 273;
29 T. L. R. 305.
" May be served."] — See The Rigel, 81 L. J.
P. 86; [1912] P. 99; 106 L. T. 648;
28 T. L. R. 251; [1912] W.C. Rep. 351.
" Mechanical haulage."]
Reid, [1913] S. C. (J.) 84.
See Soutar v.
*' Meeting."] — See East v. Bennett
Brothers, Lim., 80 L. J. Ch. 123; [1911]
1 Ch. 163; 103 L. T. 826; 18 Manson, 145;
55 S. J. 92; 27 T. L. R. 103.
"Member."] — See Llewellyn v. Kasintoe
Rubber Estates, 84 L. J. Ch. 70; [1914] 2 Ch.
670; 112 L. T. 676; 21 Manson, 349; 58 S. J.
808 ; .30 T. L. R. 683.
"Merchantable quality."] — See Jackson v.
Rotex Motor and Cycle Co., 80 L. J. K.B. 38;
[1910] 2 K.B. 937 ; 103 L. T. 411.
"Mineral."] — See Symington v. Caledonian
Railway, 81 L. J. P.C. 155; [1912] A.C. 87;
106 L. T. 193; 56 S. J. 87.
"Minerals."] — See Caledonian Railway v.
Glenboig Union Fireclay Co., 80 L. J. P.C.
128; [1911] A.C. 290; 104 L. T. 657;
75 J. P. 377.
" Misbehaviour."] — See Holland v. Peacock,
81 L. J. K.B. 256; [1912] 1 K.B. 154;
105 L. T. 957; 76 J. P. 68; 10 L. G. R. 123;
22 Cox C.C. 636.
" Misconduct."] — See Stock v. Central
Midwives Board, 84 L. J. K.B. 1835; [1915]
3 K.B. 756; 113 L. T. 428; 79 J. P. 397;
13 L. G. R. 1227 ; 31 T. L. R. 436.
" Mistake or other reasonable cause."] — See
cases sub tit. Workmen's Compensation
(Notice of Accident).
"Moderate speed."] — See The Counsellor,
82 L. J. P. 72 ; [1913] P. 70.
" Money."] — See Rex v. Mortimer, 80 L. J.
K.B. 76; [1911] 1 K.B. 70; 103 L. T. 910;
22 Cox C.C. 359 ; 75 J. P. 37 ; 27 T. L. R. 17.
" Money impressed with a trust."] — See
Hooley, In re; Trustee, ex parte, 84 L. J.
K.B. 1415; [1915] H. B. R. 181.
"Moneys."] — See Mann, In re; Ford v.
Ward. 81 L. J. Ch. 217; [1912] 1 Ch. 388;
106 L. T. 64; 56 S. J. 272.
" Monopoly value."] — See Rex v. Sunder-
land Customs and Excise Commissioners,
83 L. J. K.B. 555; [1914] 2 K.B. 390;
110 L. T. 527 ; 78 J. P. 185 ; 12 L. G. R. 580;
30 T. L. R. 298.
" Month."]— See Morrell v. Studd, 83 L.J.
Ch. 114; [1913] 2 Ch. 648; 109 L. T. 628;
58 S. J. 12 ; and Helsham-Jones v. Hennen
d Co., 84 L. J. Ch. 569; 112 L. T. 281.
" Mortgagee in possession."] — See Ziman
V. Komata Reef Gold Mining Co., 84 L. J.
K.B. 1162; [1915] 2 K.B. 163; 113 L. T. 17;
31 T. L. R. 274.
"Mutual wills."] — See Walker v. Gaskill,
83 L. J. P. 152; [1914] P. 192; 59 S. J. 45;
30 T. L. R. 637.
"My nephews and nieces."]— See Green,
In re; Bath v. Cannon, 83 L. J. Ch. 248;
[1914] 1 Ch. 134; 110 L. T. 58; 58 S. J. 185.
" Natural stream or watercourse."] — See
Phillimore v. Watford Rural Council, 82 L. J.
Ch. 514; [1913] 2 Ch. 434; 109 L. T. 616;
77 J. P. 453; 11 L. G. R. 980; 57 S. J. 741.
"Navigable and floatable river."] — See
Maclaren v. Att.-Gen. for Quebec, 83 L. J.
P.C. 201; [1914] A.C. 258; 110 L. T. 712;
30 T. L. R. 278.
"Navigate with caution."] — See The Coun-
sellor, 82 L. J. P. 72; [1913] P. 70.
"Navigating in ballast."]— See The Ton-
gariro, 82 L. J. P. 22; [1912] P. 297;
107 L. T. 28; 12 Asp. M.C. 235; 28 T. L. R.
336.
"Nearest male heir."] — See Lightfoot v.
Maybery, 83 L. J. Ch. 627; [1914] A.C. 782:
lllL. T. 300; 58 S. J. 609.
"Nearest road."] — See Hares v. Curtin,
76 J. P. 313 : 10 L. G. R. 753.
"Necessary."] — See Davies v. London Cor-
poration, 82 L. J. Ch. 286: [1913] 1 Ch. 415:
108 L. T. 546; 77 J. P. 294 : 11 L. G. R. 595:
57 S. J. 341 ; 29 T. L. R. 315.
" Necessary or proper " party.] — See Oester-
reichische Export vorm. Janowitzer v. Briti.<;h
Indemnity Co., 83 L. J. K.B. 971; [1914]
2 K.B. 747 ; 110 L. T. 955.
" Neglect of duty."] — See Deacon v. Evans,
80 L. J. K.B. 385; [1911] 1 K.B. 571;
104 L. T. 99 ; 75 J. P. 162 ; 11 Asp. M.C. 550.
"Net cash."] — See Clemens Horst Co. v.
Bidden, 81 L. J. K.B. 42; [1912] A.C. 18:
105 L. T. 563: 17 Com. Cas. 55; 12 Asp. M.C.
80; 56 S. J. 50; 28 T. L. R. 42.
" Net charge upon the guardians."] — See
Calnr Union v. Wilts County Council. SO L.J.
K.B. 548: [1911] 1 K.B. 717: 104 L. T. 607;
75 J. P. 42; 9 L. G. R. 5.
1863
WORDS.
1864
"Net profits."] — See Jolniston v. Chester-
gate Hat Manufacturing Co., 84 L. J. Ch.
914 ; [19151 2 Ch. 338 ; 59 S. J. 692.
" Neutral goods."] — See The Schlesien,
84 L. J. P. 33; 112 L. T. 353; 59 S. J. 163;
31 T. L. E. 89.
"New buildintf."] — See Leonard v. Hoare
d Co.,83L. J. K.B. 1361; [1914] 2 K.B. 798;
111 L. T. 69; 78 J. P. 287; 12 L. G. E. 844;
30 T. L. E. 425.
" Non-delivery of any package."] — See
Wills V. Great Western Railway, 84 L. J.
K.B. 449: [1915] 1 K.B. 199; 112 L. T. 368;
59 S. J. 89; 31 T. L. E. 60.
"Non-textile factory."] — See Keith, Lim.
V. Kirkwood, [1914] S. C. (J.) 150.
"Notify to the seller or his agent."] — See
Davies v. Burrell, 81 L. J. K.B. 736; [1912]
2 K.B. 243; 107 L. T. 91; 76 J. P. 285;
10 L. G. E. 645 ; 28 T. L. E. 389.
" Not negotiable."] — See M orison v. London
County and Westminster Bank, 83 L. J. K.B.
1202; [1914] 3 K.B. 3.56; 111 L. T. 114;
19 Com. Cas. 273; 58 S. J. 453; 30 T. L. E.
481.
" Obtaining goods, wares, or merchandise."]
— See Rex v. Oppenhcimer, 84 L. J. K.B.
1760; [1915] 2 K.B. 755; 113 L. T. 383;
79 J. P. 383; 59 S. J. 442; 31 T. L. E. 369.
"Occupation."] — See Barron v. Potter;
Potter V. Berry, 84 L. J. K.B. 2008; [1915]
3 K.B. 593; 59 S. J. 650.
" Occupier."] -
29 T. L. E. 359.
See Rex v. Gains ford,
"Occupier" of Premises.] — See Bruce v.
McManus, 84 L. J. K.B. 1860; [1915] 3 K.B.
1; 113 L. T. 332; 79 J. P. 294; 13 L. G. E.
727 ; 31 T. L. E. 387.
Offence " in connection with the driving of a
motor car."] — See White v. Jackson, 84 L. J.
K.B. 1900; 113 L. T. 783; 79 J. P. 447;
13 L. G. E. 1319; 31 T. L. E. 505.
" Offender whose age does not exceed sixteen
years. """ — See Rex v. Caicthron. 82 L. J. K.B.
981; [1913] 3 K.B. 168; 109 L. T. 412;
77 J. P. 460; 29 T. L. E. 600.
" Officer or servant."] — See Lawson v.
Marlborough Guardians. 81 L. J. Ch. .525;
[1912] 2 Ch. 154 ; 106 L. T. 8.38 : 76 J. P. 305 :
10 L. a. E. 443 ; .56 S. J. 503 ; 28 T. L. E. 404.
"Old on-licence renewed."'' — See Wernham
V. Regem. 83 L. .T. K.B. 395: [1914] 1 K.B.
468; 110 L. T. Ill: 78 J. P. 74.
"On land."!— See The Roumanian. MJj. J.
P. 65: [1915] P. 26: 112 L. T. 464; 59 S. J.
206: 31 T. L. E. 111.
"Open and notorious evil liver."] — See
Thompson v. Dibdin, 81 L. J. K.B. 918;
[1912] A.C. 533; 107 L. T. 66; 56 S. J. 647;
23 T. L. E. 490.
" Open market."] — See Inland Revenue
Commissioners v. Clay. 83 L. J. K.B. 1425;
[1914] 3 K.B. 460: 111 L. T. 484; 58 S. J.
610; 30 T. L. E. 573.
"Opened mine."] — See Morgan, In re;
Vachell v. Morgan, 83 L. J. Ch. 573; [1914]
1 Ch. 910; 110 L. T. 903.
" Opposite party."] — See Studley v. Studley,
82 L. J. P. 65 ; [1913] P. 119 ; 108 L. T. 657 ;
57 S. J. 425.
" Order of a Court of summary jurisdic-
tion."] — - See Rex v. Lincolnshire Justices,
81 L. J. K.B. 967; [1912] 2 K.B. 413;
107 L. T. 170; 76 J. P. 311; 10 L. G. E. 703.
"Original literary work."] — See Byrne v.
''Statist" Co., 83 L. .J. K.B. 625; [1914]
1 K.B. 622; 110 L. T. 510; 58 S. J. 340;
30 T. L. E. 254.
" Or otherwise."] —
- See Ellis v. Allen,
83 L. J. Ch. 590;
[1914] 1 Ch. 904;
110 L. T. 479.
"Or" read as "and."] — See Crutchley, In
re; Kidson v. Marsden, 81 L. J. Ch. 644;
[1912] 2 Ch. 335 ; 107 L. T. 194.
"Other premises."] — See Inland Revenue
Commissioners v. Truman, Hanbury, Buxton
d- Co., 82 L. J. K.B. 1042: [1913] A.C. 650;
109 L. T. 337; 77 J. P. 397; 57 S. J. 662;
29 T. L. E. 661.
" Other settlement than his or her own."l —
See Paddington Union v. Westmiiister Union,
84 L. J. K.B. 1727; [1915] 2 K.B. 644;
113 L. T. 328; 79 J. P. 343; 13 L. G. E. 641.
"Out of."]— See Plumb v. Cohden Flour
Mills Co., 83 L. J. K.B. 197; [1914] A.C. 62;
[1914] W.C. & I. Eep. 48; 109 L. T. 759;
58 S. J. 184; 30 T. L. E. 174.
" Outworker."] — See Street v. Williams,
83 L. J. K.B. 1268; [1914] 3 K.B. 537;
111 L. T. .544 ; 78 J. P. 442.
" Owner."! — See Metropolitan Water Board
V. Brooks. 80 L. J. K.B. 495; [1911] 1 K.B.
289 ; 103 L. T. 739 ; 75 J. P. 41 ; 9 L. G. E. 442.
" Own shop."] — See Haynes v. Ford,
80 L. J. Ch. 490; [1911] 2 Ch. 237; 104 L. T.
696: 75 J. P. 401; 9 L. G. E. 702;
27 T. L. E. 416.
"Paid in the last working year."] — See
Beaufort (Duke) v. Inland Revenue Commis-
sioners. 82 L. J. K.B. 865: [1913] 3 K.B. 48;
ins L. T. 902: 29 T. L. E. .534.
" Paid office under " Council."' — See GreviUe-
Smith V. Tomlin. 80 L. J. K.B. 774; [1911]
1865
WOEDS.
1866
2 K.B. 9; 104 L. T. 816; 75 J. P. 314;
9 L. G. R. 598.
" Paid-up share capital."] — See Newburgh
and Nort)i Fife Railway v. North British Rail-
icay, [1913] S. C. 1166.
" Particular breach."] — See Jolly v. Brown,
83 L. J. K.B. 308; [1914] 2 K.B. 109;
109 L. T. 53-2; 58 S. J. 153.
" Parties interested."] — See Bonney v.
Hoyle <f- So7is. Lim., 83 L. J. K.B. 541;
[1914] 2 K.B. 257 ; [1914] W.C. & I. Rep. 565 ;
110 L. T. 729 ; 12 L. G. E. 358 ; 58 S. J. 268 ;
30 T. L. R. 280.
" Part of a street."] — See Bell v. Great
Crosby UrOan Council, 108 L. T. 455; 77 J. P.
37; 10 L. G. R. 1007.
" Party wall."] — See London, Gloucester-
shire, and North Hants Dairy Co. v. Morley,
80 L. J. K.B. 908; [1911] 2 K.B. 257;
104 L. T. 773; 9 L. G. R. 738; 75 J. P. 437.
" Patent agent."] — See Hans v. Graham,
83 L. J. K.B. 1255; [1914] 3 K.B. 400;
111 L. T. 551; 78 J. P. 455.
" Payment for the benefit of an enemy."] —
See Rex v. Kupfer, 84 L. J. K.B. 1021; [19i5]
2 K.B. 321; 112 L. T. 1138; 79 J. P. 270;
31 T. L. R. 223; and Continental Tyre and
Rubber Co. v. Daimler Co., 84 L. J. K.B. 926 ;
[1915] 1 K.B. 893; 112 L. T. 324; 20 Com.
Cas. 209 ; 59 S. J. 232 ; 31 T. L. R. 159.
"Payments made."] — See Inland Revenue
Commissioners V. St. John's College, Oxford,
84 L. J. K.B. 1426; [1915] 2 K.B. 621;
112 L. T. 1039.
" Payments made in consideration of the
lease."] — See Inland Revenue Commissioners
V Camden {Marquis}, 84 L. J. K.B. 145;
[1915] A.C. 241 ; 111 L. T. 1033 ; 58 S. J. 782 ;
30 T. L. R. 681.
" Perils of the seas and all other perils,
losses and misfortunes."] — See Stott (Baltic)
Steamers, Lim. v. Marten, 83 L. J. K.B. 1847 ;
[1914] 3 K.B. 1262; 19 Com. Cas. 438;
30 T. L. R. 68G.
" Period of maintenance."] — See Calne
Union v. Wilts County Council, 80 L. J. K.B.
548; [1911] 1 K.B. 717; 104 L. T. 607;
75 J. P. 42.
*' Permanent incapacity."] — See Marshall,
Sons <(■ Co. V. Prince, 84 L. J. K.B. 16;
[1914] 3 K.B. 1047; [1914] W.C. & I. Rep.
559; 111 L. T. 1081; 58 S. J. 721;
30 T. L. R. 654.
" Permitted."] — See Dundas v. Phyn,
[1914] S. C. (J.) 114.
" Permit to be carried."] — See North
Staffordshire Railicari v. Waters, 110 L. T.
237'; 78 J. P. 116; 12 L. G. R. 289;
24 Cox C.C. 271 ; 30 T. L. R. 121.
" Per pro."] — See Morison v. London County
and Westminster Bank, 83 L. J. K.B. 1202;
[1914] 3 K.B. 356; 111 L. T. 114; 19 Com.
Cas. 273; 58 S. J. 453; 30 T. L. R. 481.
" Person."] — See Caldwell v. Bethell,
82 L. J. K.B. 101; [1913] 1 K.B. 119;
107 L. T. 685 ; 77 J. P. 118; 23 Cox C.C. 225 ;
29 T. L. R. 94; Bebb v. Law Society,
83 L. J. Ch. 363; [1914] 1 Ch. 286; 110 L. T.
353; 58 S. J. 153; 30 T. L. R. 179; Rex v.
Holden, 81 L. J. K.B. 327 ; [1912] 1 K.B. 483;
106 L. T. 305 ; 76 J. P. 143; 22 Cox C.C. 727 ;
56 S. J. 188; 28 T. L. R. 173; and Chuter v.
Freeth d Pocock, 80 L. J. K.B. 1322; [1911]
2 K.B. 832; 105 L. T. 238; 75 J. P. 430;
9 L. G. R. 1055 ; 27 T. L. R. 467 ; 22 Cox C.C.
573.
" Person aggrieved."] — See Liverpool Com-
pensation Authority v. Inland Revenue Com-
missioners, 82 L. J. K.B. 349; [1913] 1 K.B.
165; 108 L. T. 68; 29 T. L. R. 169; Imperial
Tobacco Co.'s Trade Marks, In re, 84 L. J.
Ch. 643; [1915] 2 Ch. 27; 112 L. T. 632;
32 R. P. C. 361 ; 59 S. J. 456 ; 31 T. L. R. 408 ;
Cooke V. Bolton Justices, 81 L. J. K.B. 648;
[1912] 2 K.B. 248 ; 105 L. T. 818 ; 76 J. P. 67 ;
Hosking, In re; Hosking, ex parte, 106 L. T.
640; Kitson, In re; Sugden d' Son, Lim.,
ex parte, 80 L. J. K.B. 1147; [1911] 2 K.B.
109; 18 Manson, 224; 55 S. J. 443: and Wills
V. McSherry, 83 L. J. K.B. 596; [1914]
1 K.B. 616; 110 L. T. 65; 78 J. P. 120;
12 Asp. M.C. 426.
"Personal chattels."] — See Thynne, In re;
Thynne v. Grey, 80 L. J. Ch. 205; [1911]
1 Ch. 282; 104 L. T. 19; 18 Manson, 34.
" Personal earnings."] — See Affleck v. Ham-
mond, 81 L. J. K.B. 565; [1912] 3 K.B. 162;
106 L. T. 8; 19 Manson, 111.
" Personal exertion."] — See Syme v. Victoria
Commissioners of Taxes, 84 L. J. P.C. 39;
[1914] A.C. 1013; 111 L. T. 1043; 30 T. L. R.
689.
" Person causing or suffering ... to flow."]
— See Rocliford Rural Council v. Port of Lon-
don Authority, 83 L. J. K.B. 1066; [1914]
2 K.B. 916; 111 L. T. 207; 78 J. P. 329;
12 L. G. R. 979.
" Person in charge."] — See North Stafford-
shire Railway v. Waters, 30 T. L. R. 121.
" Person mainly employed in connexion with
the serving of customers."] — See Prance v.
London County Council, 84 L. J. K.B. 623;
[1915] 1 K.B. 688; 112 L. T. 820; 79 J. P.
242; 13 L. G. R. 382; 31 T. L. R. 128.
" Person residing in United Kingdom."] —
See Brown v. Burt, 81 L. J. K.B. 17;
105 L. T. 420; 27 T. L. R. 572; 5 Tax Cas.
667.
" Persons having the same interest in one
cause or matter."] — Soo Walker v. Sur,
83 L. J. K.B. 1188; [1914] 2 K.B. 930;
109 L. T. 888; 30 T. L. R. 171.
1867
WOKDS.
1868
" Persons interested in the licensed
premises."] — See Bladon, In re; Dando v.
Porter, 81 L. J. Ch. 117; [1912] 1 Ch. 45;
105 L. T. 729; 28 T. L. R. 57; and Ecclesias-
tical Comviissioners v. Page, 80 L. J. K.B.
1346; [1911] 2 K.B. 946; 105 L. T. 827;
75 J. P. 548.
" Person wlio can swear positively to tlie
facts."] — See Symon v. Palmer's Stores,
81 L. J. K.B. 439; [1912] 1 K.B. 259;
106 L. T. 176.
" Persuade a seaman to refuse to join his
ship."] — See Vickerson v. Crowe, 83 L. J.
KB. 469; [1914] 1 K.B. 462; 110 L. T. 425;
78 J. P. 88; 12 Asp. M.C. 446; 24 Cox C.C.
122; 30 T. L. E. 111.
" Pits."]— See Lofthouse Colliery v. Ogden,
82 L. J. K.B. 910; [1913] 3 K.B. 120;
107 L. T. 827; 57 S. J. 186; 29 T. L. R. 179.
" Pleasure ground."] — See Stevens
National Telephone Co., [1914] 1 Ir. R. 9.
" Policy on human life."] — See Hampton v.
Toxteth Co-operative Society, 84: L. J. Ch. 633;
[1915] 1 Ch. 721; 113 L. T. 62; 59 S. J. 397;
31 T. L. E. 314.
"Port."]— See The Mowe, 84 L. J. P. 57;
[1915] P. 1; 112 L. T. 261; 59 S. J. 76;
31 T. L. R. 46.
"Practice and procedure."] — See Haxhy v.
Wood Advertising Agency, 109 L. T. 946;
and Jackson, In re, 84 L. J. K.B. 548; [1915]
1 K.B. 371; 112 L. T. 395; 59 S. J. 272;
31 T. L. R. 109.
" Prejudiced in their defence."]
Workmen's Compensation.
See
" Prejudice of the purchaser."] — See
Williams v. Friend, 81 L. J. K.B. 756;
[1912] 2 K.B. 471 ; 107 L. T. 93 ; 76 J. P. 301 ;
10 L. G. R. 494 ; 28 T. L. R. 407.
"Premium."] — See King v. Cadogan
(Earl), 84 L. J. K.B. 2069; [1915] 3 K.B.
485; 59 S. J. 680.
"Private company."] — See Park v. Royal-
ties Syndicate, Lim., 81 L. J. K.B. 313;
[1912] 1 K.B. 330 ; 106 L. T. 185 ; 76 J. P. 93 ;
19 Manson, 97; and White, In re; Theobald
V. White, 82 L. J. Ch. 149; [1913] 1 Ch. 231;
108 L. T. 319; 57 S. J. 212.
" Private dwelling house."] — See Bristol
Guardians v. Bristol Waterworks Co., 83 L. J.
Ch. 393; [1914] A.C. 379; 110 L. T. 846;
78 J. P. 217 ; 12 L. G. R. 261 ; 58 S. J. 318 ;
30 T. L. R. 296.
"Private road."] — See Windham's Settled
Estate, In re, 81 L. J. Ch. 574; [1912] 2 Ch.
75 ; 106 L. T. 832.
"Proceeding instituted in consequence of
adultery."] — See Lewis v. Lewis, 81 L. J. P.
24; [1912] P. 19; 106 L. T. 191; 56 S. J. 189;
28 T. L. R. 174.
" Proceedings pending."] — See Rex v.
O'Connor, 82 L. J. K.B. 335; [1913] 1 K.B.
557 ; 108 L. T. 384; 77 J. P. 272 ; 23 Cox C.C.
334 ; 57 S. J. 287 ; 29 T. L. R. 245.
"Profit."] — See Commissioner of Taxes v.
Melbourne Trust, 84 L. J. P.C. 21; [1914]
A.C. 1001; 111 L. T. 1040; 30 T. L. R. 685.
"Profits."] — See Spanish Prospecting Co.,
In re, 80 L. J. Ch. 210; [1911] 1 Ch. 92;
103 L. T. 609; 18 Manson, 191; 55 S. J. 63;
27 T. L. R. 76; and Trevor-Battye's Settle-
ment, In re; Bull v. Trevor-Battye, 81 L. J.
Ch. 646; [1912] 2 Ch. 339; 107 L. T. 12;
56 S. J. 615.
"Profits or gains."] — See cases sub tit.
Revenue (Income Tax).
"Proper officer."] — See Stead (a Solicitor),
In re, 81 L. J. K.B. 68; [1911] A.C. 688;
105 L. T. 120; 55 S. J. 616.
"Property."] — See Lanark County Council
V. Motherwell Magistrates, [1912] S. C. 1251.
" Property and civil rights in the province."]
— See Royal Bank of Canada v. Regem;
83 L. J. P.C. 33; [1913] A.C. 283; 108 L. T.
129 ; 29 T. L. R. 239.
Property "entrusted."] — See Rex v. Grubb,
84 L. J. K.B. 1744; [1915] 2 K.B. 683;
113 L. T. 510; 79 J. P. 430; 59 S. J. 547;
31 T. L. R. 429.
" Property locally situate out of the United
Kingdom."] — See Velazquez, Lim. v. Inland
Revenue Commissioners, 83 L. J. K.B. 1108;
[1914] 3 K.B. 458; 111 L. T. 417; 58 S. J.
554 ; 30 T. L. R. 539.
Property " passing on the death of the
deceased."] — See Att.-Gen. v. Milne, 82 L. J.
K.B. 773; [1913] 2 K.B. 606; 108 L. T. 772;
57 S. J. 532.
" Property passing to executor as such."] —
See O'Grady, In re; O'Grady v. Wilmot,
84 li. J. Ch. 496; [1915] 1 Ch. 613; 112 L. T.
615 ; 59 S. J. 332.
Property "received."] — See Rex v. Grubb,
84 L. J. K.B. 1744; [1915] 2 K.B. 683;
113 L. T. 510; 79 J. P. 430; 59 S. J. 547;
31 T. L. R. 429.
" Property recovered or preserved."] — See
CockrelVs Estate, In re; Pinkey v. Cockrell,
81 L. J. Ch. 152; [1912] 1 Ch. 23;
105 L. T. 662.
1869
WOEDS.
1870
" Property which does not pass to the execu-
tor as such."]— See Hudson, In re; Spencer v.
Turner, 80 L. J. Ch. 129; [1911] 1 Ch. 206;
103 L. T. 718.
" Provision in local Act dealing with con-
struction of new buildings."] — See HoUiday iC
Greenwood v. District Surveyors' Association,
83 L. J. K.B. 1482; [1914] 2 K.B. 803;
110 L. T. 983; 78 J. P. 262; 12 L. G. E. 633;
30 T. L. R. 370.
" Public company."] — See White, In re;
Theobald v. Whitt, 82 L. J. Ch. 149; [1913]
1 Ch. 231; 108 L. T. 319; 57 S. J. 212.
"Public institution."] — See Royal Masonic
Institution v. Parkes, 82 L. J. K.B. 33;
[1912] 3 K.B. 212; 106 L. T. 809; 76 J. P.
218; 10 L. G. E. 376; 23 Cox C.C. 746;
28 T. L. R. 355.
"Public ofiPicer."] — See Rex v. Whitaker,
84 L. J. K.B. 225; [1914] 3 K.B. 1283;
112 L. T. 41: 79 J. P. 28; 58 S. J. 707;
30 T. L. E. 627.
"Public cilices and employments of profit."]
—See Pickles v. Foster, 82 L. J. K.B. 121;
[1913] 1 K.B. 174 ; 108 L. T. 106 ; 20 Manson,
106; 6 Tax Cas. 131 ; 29 T. L. E. 112.
" Public place."] — See Campbell v. Kerr
[1912] S. C. (J.) 10.
"Public purpose."]— See Hamabai Framjee
Petit V. Secretary of State for India,
L. E. 42 Ind. App. 44.
"Public school."] — See Ackworth School v.
Betts, 84 L. J. K.B. 2112.
" Public service."] — See Samuel's (Sir
Stuart) Seat, In re, 82 L. J. P.C. 106; [1913]
A.C. 514; 108 L. T. 696; 29 T. L. E. 429.
"Public stocks."] — See Hill, In re; Fettes
V. Hill, 58 S. J. 399.
"Purchased."] — See Inland Revenue Com-
missioners V. Cribble, 82 L. J. K.B. 900;
[1913] 3 K.B. 212 ; 108 L. T. 887 ; 57 S. J. 476 ;
29 T. L. E. 481.
" Purchaser."] — See Lawley, In re ; Jackson
V. Leighton, 81 L. J. Ch. 97; [1911] 2 Ch.
530; 105 L. T. 571; 56 S. J. 13.
" Racecourse."] — See Stead v. Aykroyd
80 L. J. K.B. 78 ; [1911] 1 K.B. 57 ; 103 L. T.
727; 74 J. P. 482.
" Rags."]— See Cooper v. Swift, 83 L. J.
K.B. 630; [1914] 1 K.B. 253; 110 L. T. 79;
78 J. P. 57 ; 12 li. G. 11. 115 ; 23 Cox C.C. 759.
" Railway." — See Lancashire and York-
shire HaiUrny v. Liverpool Corporation,
82 T.. J. K.B. 1096; [1913] 3 K.B. 247;
108 L. T. 872; 77 J. P. 305; 11 L. G. E. 932;
57 S. J. 557; and Tottenham Urban Council
V. M etropolitaji Electric Tramways, 83 L. J.
K.B. 60; [1914] A.C. 702; 109 L. T. 674;
77 J. P. 413; 11 L. G. E. 1071; 57 S. J. 739;
29 T. L. E. 720.
" Reasonable cause."] — See Elke v. Hart-
Dyke, 80 L. J. K.B. 90; [1910] 2 K.B. 677;
103 L. T. 174; 26 T. L. E. 613; Potter v.
Welch ci Sons, Lim., 83 L. J. K.B. 1852;
[1914] 3 K.B. 1020; [1914] W.C. & I. Eep.
607; 30 T. L. E. 644; Moore v. Naval
Colliery Co., 81 L. J. K.B. 149; [1912] 1 K.B.
28; 105 L. T. 838; [1912] W.C. Eep. 81
Luckie v. Merry, 84 L. J. K.B. 1388; [1915]
3 K.B. 83; [1915] W.C. & I. Eep. 395
113 L. T. iS67; 59 S. J. 544; 31 T. L. E. 466
Fox V. Barrow Hematite Steel Co., 84 L. J
K.B. 1327; [1915] W.C. & I. Eep. 321
113 L. T. 528; Wassail v. Russell d Sons
Lim., 84 L. J. K.B. 1606; [1915] W.C. & I
Eep. 88; 112 L. T. 902; and Flood v. Smith
[1915] S. C. 726 ; [1915] W.C. & I. Eep. 212
"Reasonable facilities."] — See Spillers d
Bakers, Lim. v. Great Western Railway,
80 L. J. K.B. 401; [1911] 1 K.B. 386;
103 L. T. 685; 14 Ey. & Can. Traff. Cas. 52;
55 S. J. 75; 27 T. L. E. 97.
" Reasonable ground."] — See Adams v.
Thrift, 84 L. J. Ch. 729; [1915] 2 Ch. 21;
113 L. T. 569.
" Reasonable grounds for proceedings."] —
See Merriman v. Geach, 82 L. J. K.B. 87;
[1913] 1 K.B. 37 ; 107 L. T. 703; 57 S. J. 146.
" Reasonable security."] — See Webb, In re;
Board of Trade, ex parte, 83 L. J. K.B. 1386;
[1914] 3 K.B. 387 ; 111 L. T. 175 ; 21 Manson,
169; 58 S. J. 581.
"Receipt of the rents and profits for their
own use."] — See White v. Bown, 82 L. J.
K.B. 89; [1913] 1 K.B. 78; 108 L. T. 159;
77 J. P. 78; 11 L. G. E. 23; 2 Smith, 386;
29 T. L. E. 63.
"Receive."] — See Haas v. Atlas Insurance
Co., 82 L. J. K.B. 506; [1913] 2 K.B. 209;
[1913] W.C. & I. Eep. 375; 108 L. T. 373;
57 S. J. 446; 29 T. L. E. 307.
" Received in Great Britain."] — See Scottish
Provident Institution v. Inland Revenue,
[1912] S. C. 452 ; 6 Tax Cas. 34.
"Receiving of money."] — See Boulton v.
Hunt, 109 L. T. 245; 77 J. P. 337;
23 Cox C.C. 427.
" Recovered in the action."] — See Lamb v.
Keeping, 111 Ti. T. 527; 58 S. J. 596.
" Recovery of damages not specially provided
for."] — See Swansea Corporation v. Harpur,
81 L. J. K.B. 1103; [1912] 3 K.B. 493;
107 L. T. 6; 76 J. P. 409; 10 L. G. E. 677.
" Recurrence of nuisance."] — See Greenwich
Borough Council v. London County Council,
106 L. T. 887 : 76 J. P. 267 ; 10 L. G. E. 488;
23 Cox C.C. 32.
1871
WOKDS.
1872
" Redeemable " Stock.] — See Edinburgh
CoTporation v. British Linen Bank, 82 L. J:
P.C. -lb; [1913] A.C. 133; [1913] S. C. (H.L.)
4 ; 107 L. T. 567 ; 29 T. L. K. 25.
" Redeem the liability."] — See Yorkshire
(N.R.) County Council and Middlesbrough
Coujity Borough Council, In re, 83 L. J. K.B.
1004; [1914] 2 K.B. 847; 110 L. T. 961;
78 J. P. 257; 12 L. G. E. 555; 58 S. J. 43.
" Religious purposes."] — See Avenon's
Charity, In re; Att.-Gen. v. Pelly, 82 L. J.
Ch. 398; [1912] 2 Ch. 261; 109 L. T. 98;
57 S. J. 626.
" Remunerated by shares in the profits or
the gross earnings.""! — See Stephenson v.
Rossall Steam Fishing' Co., 84 L. J. K.B. 677 ;
[1915] W.C. & I. Rep. 121; 112 L. T. 891.
"Remuneration."] — See Skailes v. Blue
Anchor Line. 80 L. J. K.B. 442 ; [1911] 1 K.B.
360; 103 L. T. 741; 55 S. J. 107; 27 T. L. E.
119.
" Rent or premium."] — See King v.
Cadogan (Earl), 84 L. J.' K.B. 2069; [1915]
3 K.B. 485; 59 S. J. 680.
"Rents and profits."] — See Rex v. Income
Tax Commissioners; Essex Hall, Ex parte,
80 L. J. K.B. 1035; [1911] 2 K.B. 434;
104 L. T. 764 : 27 T. L. E. 466.
" Rents, dividends, and interest and other
produce."] — See Pyke, In re; Birnstingl v.
Birnstingl, 81 L. J. Ch. 495; [1912] 1 Ch.
770; 106 L. T. 751; 56 S. J. 380.
" Represented in a special or particular
manner."] — See British Milk Products Co.'s
Application, In re, 84 L. J. Ch. 819; [1915]
2 Ch. 202; 32 R. P. C. 453.
" Require."] — See Metropolitan Water
Board v. Johnson, 82 L. J. K.B. 1164; [1913]
8 K.B. 900; 109 L. T. 88; 77 J. P. 384;
11 L. G. E. 1106; 57 S. J. 625; 29 T. L. R.
603.
Residence " in the borough or within seven
miles thereof."! — See Lloyd v. Shrewsbury
(Town Clerk), ^84: L. J. K.B. 446; [1915]
1 K.B. 195; 112 L. T. 4-56; 13 L. G. R. 265;
3 Smith, 1; 31 T. L. E. 55.
" Respectable and responsible person."] —
See Willmott v. London Road Car Co., 80 L. J.
Ch. 1; [1910] 2 Ch. .525; 103 L. T. 447;
54 S. J. 873; 27 T. L. E. 4.
" Restraint of princes."] — See Sanday d Co.
V. British and Foreign Marine Insurance Co.,
8t L. J. K.B. 1625; [1915] 2 K.B. 781;
113 L. T. 407 : 20 Com. Cas. 305 ; 59 S. J. 456 ;
31 T. L. E. 374.
"Retention money."] — See West Yorkshire
Bank v. Isherwood, 76 J. P. 456; 28 T. L. R.
593.
" Right, franchise, or privilege."] — See
British Columbia Electric Raihcay v. Stewart,
83 L. J. P.C. 53; [1913] A.C. 816; 109 L. T.
771.
"Right to work minerals."] — See Inland
Revenue Commissioners v. Joicey {No. 2),
82 L. J. K.B. 784; [1913] 2 K.B. 580;
108 L. T. 738; 57 S. J. 557 ; 29 T. L. R. 537.
"Rogues and vagabonds."] — See Hawke v.
Hulton, 78 L. J. K.B. 633; [1909] 2 K.B. 93;
100 L. T. 905 ; 73 J. P. 295 ; 16 Manson, 164 ;
22 Cox C.C. 122; 25 T. L. R. 474.
" Safe port."] — See Hall Brothers Steam-
ship Co. V. Paul, Lim., 19 Com. Cas. 384;
30 T. L. R. 598.
"Seaworthiness admitted."] — See Cantiere
Meccanico Brindisino v. Janson, 81 L. J. K.B.
1043; [1912] 3 K.B. 452; 107 L. T. 281;
17 Com. Cas. 332 ; 57 S. J. 62 ; 28 T. L. R. 564.
" Second offence."] — See Rex v. South
Shields Licensing Justices, 80 L. J. K.B. 809;
[1911] 2 K.B. 1; 105 L. T. 41; 75 J. P. 299;
22 Cox C.C. 431 ; 55 S. J. 386 ; 27 T. L. R. 330.
" Securing the payment of royalties."] — See
Monckton v. Pathe Freres Pathephone, Lim.,
83 L. J. K.B. 1234; [1914] 1 K.B. 395;
109 L. T. 881; 58 S. J. 172; 30 T. L. R. 123.
" Securities standing in my name at my
decease."] — See Mayne, In re; Stoneman v.
Woods, 83 L. J. Ch. 815; [1914] 2 Ch. 115;
58 S. J. 579.
" Security."] — See Barnard v. Foster,
84 L. J. K.B. 1244; [1915] 2 K.B. 288;
31 T. L. R. 307.
"Sell."]— See Lambert v. Rowe, 83 L. J.
K.B. 274; [1914] 1 K.B. 38; 109 L. T. 939;
78 J. P. 20; 12 L. G. R. 68; 23 Cox C.C. 696.
" Sells."]— See Caldwell v. Bethell, 82 L. J.
K.B. 101; [1913] 1 K.B. 119; 107 L. T. 685;
77 J. P. 118; 23 Cox C.C. 225; 29 T. L. R. 94.
" Sent by the post."] — See Browne v. Black,
81 L. J. K.B. 458; [1912] 1 K.B. 316;
105 L. T. 982; 56 S. J. 144; 28 T. L. R. 119.
" Sent to the purchaser."! — See Retail Dairy
Co. V. Clarke, 81 L. J. K.B. 845; [1912]
2 K.B. 388; 106 L. T. 848; 76 J. P. 282;
10 L. G. R. 547 ; 28 T. L. R. 361.
" Serious and wilful misconduct."] — See
Harding v. Brynddu Colliery Co., 80 L. J.
K.B. 1052; [1911] 2 K.B. 747; 105 L. T. 55;
55 S. J. 599; 27 T. L. R. 500.
" Sewer."] — See Att.-Gen. v. Lewes Cor-
poration, 81 L. J. Ch. 40; [1911] 2 Ch. 495
105 L. T. 697; 76 J. P. 1; 10 L. G. R. 26
55 S. J. 703; 27 T. L. R. 581; Phillimore v
Watford Rural Council, 82 L. J. Ch. 514
[1913] 2 Ch. 434 ; 109 L. T. 616 ; 77 J. P. 453
11 L. G. R. 980; 57 S. J. 741; and Holywood
Urban Council v. Grainger, [1913] 2 Ir. R. 126.
1873
WOEDS.
1874
" Shall deem it desirable."] — See Challis v.
Watson, 82 L. J. K.B. 529; [1913] 1 K.B.
547 ; 108 L. T. 5U5 ; 57 S. J. 285 ; 29 T. L. K.
271; and Donkin v. Pearson, 80 L. J. K.B.
1069; [1911] 2 K.B. 412; 104 L. T. 643.
" Shall die in my lifetime."] — See Williams,
In re; Metcalf v Williams, 83 L. J. Ch. 570;
[1914] 2 Ch. 61: 110 L. T. 923; 58 S. J. 470.
" Shares belonging to me."l — See Clifford,
In re; Mallam v. McFie, 81 L. J. Ch. 220;
[1912] 1 Ch. 29: 106 L. T. 14; 56 S. J. 91;
28 T. L. K. 57.
"Ship."] — See Smeed v. Port of London
Authority, 82 L. J. K.B. 323; [1913] 1 K.B.
226; 108 L. T. 171; 12 Asp. M.C. 297;
57 S. J. 172; 29 T. L. E. 122; The Mudlark,
80 L. J. P. 117; [1911] P. 116: 27 T. L. R.
385; and Weeks v. Ross, 82 L. J. K.B. 925;
[1913] 2 K.B. 229 ; 108 L. T. 423 : 77 J. P. 182 ;
12 Asp. M.C. 307 ; 23 Cox C.C. 337 ; 29 T. L. R.
369.
" Shipped again as soon as possible."] — See
Anglo-American Oil Co. v. Port of London
Authority, 83 L. J. K.B. 125; [1914] 1 K.B.
14; 109 L. T. 862; 19 Com. Cas. 23; I
12 Asp. M.C. 419; 30 T. L. R. 14. \
"Shop."] — See Willesden Urban Council v.
Morgan, 84 L. J. K.B. 373; [1915] 1 K.B.
349; 112 L. T. 423; 79 J. P. 166; 13 L. G. R. i
390; 59 S. J. 148; 31 T. L. R. 93; Clayton !
V. Le Roy, 81 L. J. K.B. 49; [1911] 2 K.B. I
1031 ; 104 L. T. 419 ; 75 J. P. 229 ; 27 T. L. R. j
206; and Ward v. Smith, 82 L. J. K.B. 941; '
[1913] 3 K.B. 154; 109 L. T. 439; 77 J. P. i
370; 11 L. G. R. 741; 29 T. L. R. 536.
" Shop assistant."] — See Melhuish v.
London County Council, 83 L. J. K.B. 1165;
[1914] 3 K.B. 325; 111 L. T. 539; 78 J. P.
441; 12 L. G. E. 1086; 30 T. L. R. 527.
" Should one die before the other."] — See j
Fisher, In re; Robinson v. Eardley, 84 L. J.
Ch. 342; [1915] 1 Ch. 302; 112 L. T. 548;
59 S. J. 318.
"Similar licence."] — See Rex v. Taylor;
Rex V. Amendt (No. 2), 84 L. J. K.B. 1489;
[1915] 2 K.B. 593; 113 L. T. 167; 79 J. P.
332; 31 T. L. R. 317.
" Single private drain."] — Sec Holyicood
Urban Council v. Grainger, [1913] 2 Ir. R. 126.
" So near thereunto as she may safely get."]
See The Fox, 83 L. J. P. 89; 30 T. L. R. 576.
" So seized."] — See Salt v. Tomlinson,
80 L. J. K.B. 897; [1911] 2 K.B. 391;
105 L. T. 31: 75 J. P. 398; 9 L. G. R. 822;
27 T. L. R. 427.
" Soil."] — See St. Catherine's College, Cam-
bridge V. Greensmith, 81 L. J. Ch. 655;
[1912] 2 Ch. 280 ; 106 L. T. 1009 ; 56 S. J. 551.
" Sold or exposed for sale."]— See Bothamley
V. Jolly, 84 L. J. K.B. 2223: [1915] 3 K.B.
425; 79 J. P. 548; 31 T. L. R. 626.
" Solicits."] — See Norton v. Mead, 82 L. J.
K.B. 200; [1913] 1 K.B. 154; 108 L. T. 156;
77 J. P. 129; 23 Cox C.C. 279.
" Special circumstance."] — See Beldam's
Patent, In re, 80 L. J. Ch. 133; [1911] 1 Ch.
60 ; 103 L. T. 454 ; 27 R. P. C. 758 ; 55 S. J. 46.
" Stamp."] — See Rex v. Lowden, 83 L. J.
K.B. 114: [1914] 1 K.B. 144; 109 L. T. 832;
73 J. P. Ill; 23 Cox C.C. 643; 58 S. J. 157;
30 T. L. R. 70.
"Stay of execution."] — See Bond, In re;
Capital and Counties Bank, ex parte, 81 L. .T.
K.B. 112; [1911] 2 K.B. 988; 19 Manson, 22.
" Steamship carrying mails."] — See Union
Steamship Co. of New Zealand v. Wellington
Harbour Board, 84 L. J. P.C. 169; [1915]
A.C. 622; 113 L. T. 203; 31 T. L. R. 292.
" Step in the proceedings."] — See Austin
and Whiteley v. Bowley, 108 L. T. 921.
"Storehouse."] — See Appleyard v. Bang-
ham, 83 L. J. K.B. 193; [1914] 1 K.B. 258;
110 L. T. 34 ; 77 J. P. 448 ; 11 L. G. R. 1220 ;
23 Cox C.C. 730; 30 T. L. R. 13.
"Stores."] — See The Nicolay Belozwetow,
82 L. J. P. 37 ; [1913] P. 1 ; 107 L. T. 862 ;
12 Asp. M.C. 279; 29 T. L. R. 160; and The
Tongariro, 82 L. J. P. 22; [1912] P. 297;
107 L. T. 28; 12 Asp. M.C. 235; 28 T. L. R.
336.
"Structural" separation."] — See Beirne v.
Duffy, [1914] 2 Ir. R. 68.
"Structures."] — See Waiters Executors v.
Inland Revenue Commissioners. 83 L. J. K.B.
1617; [1914] 3 K.B. 196; 111 L. T. 505;
•58 S. J. 634; 30 T. L. R. 568.
" Subsequently made."] — See Parrish v.
Hackney Borough Council, 81 L. J. K.B. 304;
[1912] 1 K.B. 669 ; 105 L. T. 859; 10 L. G. R.
3; 76 J. P. 89; 56 S. J. 140; 28 T. L. R. 110.
" Subsidiary company."] — See Lancashire
Plate-Glass, Fire, and Burglary Insurance Co.,
In re, 81 L. J. Ch. 199; [1912] 1 Ch. 35;
105 L. T. 570; 19 Manson, 149; 56 S. J. 13.
"Sufficient cause."] — See Scott, In re;
Paris-Orleans Railway, ex parte, 58 S. J. 11;
and Sunderland. In re: Leech .f Simpkinson,
ex parte, 80 L. J. K.B. 825; [1911] 2 K.B.
658; 105 L. T. 233: 18 Manson, 123; 55 S. J.
568; 27 T. L. R. 454.
" Sum certain."] — See Alexandra Docks and
Railway v. Taff Vale Railway, 28 T. L. R. 163.
" Supply,"] — See Att.-Gen. v. Leicester Cor-
poration. 80 L. J. Ch. 21: [1910] 2 Ch. 359;
103 L. T. 214; 74 J. P. 385; 9 L. G. R. 185;
26 T. L. R. 568.
1875
WOKDS.
1876
" Supply a notice."] — See Clifford v. Batt-
ley, 8-i L. J. K.B. 615; [1915] 1 K.B. 531;
112 L. T. 765; 79 J. P. 180; 13 L. G. K. 505;
31 T. L. E. 117.
" Supply for the purposes of any trade or
business."] — See Metropolitan Water Board v.
Averjj, 83 L. J. K.B. 178; [1914] A.C. 118;
109 L. T. 762; 78 J. P. 121; 12 L. G. E. 95;
58 S. J. 171 ; 30 T. L. R. 189.
"Surf days."] — See British and Mexican
Shipping Co. v. Lockett, 80 L. J. K.B. 462;
[1911] 1 K.B. 264; 103 L. T. 868;
16 Com. Cas. 75.
"Surplus assets."] — See Ramel Syndicate,
In re, 80 L. J. Ch. 455; [1911] 1 Ch. 749;
104 L. T. 842; 18 Manson, 297.
"Survivors."] — See Poultney, In re; Poult-
ney v. Poultney. 81 L. J. Ch. 748; [1912]
2 Ch. 541 ; 107 L. T. 1 ; 56 S. J. 667.
"Survivors or survivor."] — See Mears, In
re: Parker v. Mears, 83 L. J. Ch. 450; [1914]
1 Ch. 694 ; 110 L. T. 686.
"Swear positively to the facts."] — See
Pathe Freres Cinema v. United Electric
Theatres, 84 L. J. K.B. 245; [1914] 3 K.B.
1253; 112 L. T. 20; 58 S. J. 797; 30 T. L. E.
670.
" Take on themselves the repair."] — See
Stamford and Warrington (Earl), In re
Payne v. Grey ('So. 2), 80 L. J. Ch. 361
[1911] 1 Ch. 648 ; 105 L. T. 12 ; 75 J. P. 346
9 L. G. E. 719; 55 S. J. 483; 27 T. L. E. 356.
"Taxable income."] — See Commissioners of
Taxation of New South Wales v. Adams,
81 L. J. P.C. 185 ; [1912] A.C. 384 ; 106 L. T.
307 ; 28 T. L. E. 263.
"Testamentary expenses."] — See Porte v.
Williams. 80 L. J. Ch. 127 ; [1911] 1 Ch. 188;
103 L. T. 798; 55 S. J. 45; Hudson, In re;
Spencer v. Turner, 80 L. J. Ch. 129; [1911]
1 Ch. 206; 103 L. T. 718; and Avery, In re;
Pinsent v. Avery, 82 L. J. Ch. 434; [1913]
1 Ch. 208; 108 L. T. 1; 57 S. J. 112.
"Their daughter."] — See Jeffery, In re;
Nussey v. Jeffery, 83 L. J. Ch. 251; [1914]
1 Ch. 375; 110 L. T. 11; 58 S. J. 120.
" Then."] — See Griffiths v. Eccles Provident
Industrial Co-operative Society, 80 L. J. K.B.
1041; [1911] 2 K.B. 275; 104 L. T. 798;
55 S. J. 440; 27 T. L. R. 375.
" Then executed."] — See Taylor v. Steel-
Maitland, [1913] S. C. 562.
" Thereunto lawfully authorized."] — See
Daniels v. Trefusis, 83 L. J. Ch. 579: [1914]
1 Ch. 788 ; 109 L. T. 922 ; 58 S. J. 271.
" Things omitted or knowingly suffered."] —
See Eastwood v. Ashton, 84 L. J. Ch. 671;
ri915] A.C. 900; 113 L. T. 562; 59 S. J. 560.
" Through a court, passage, or otherwise."]
— See Chatterton v. Glanford Brigg Rural
Council, 84 L. J. K.B. 1865; [1915] 3 K.B.
707 ; 113 L. T. 746 ; 79 J. P. 441 ; 13 L. G. E.
1352.
" Timber.
71.
-See Swift v. David, 107 L. T.
" Time elapsing."] — See Chetwynd's Trustee
V. Boltons Library, 82 L. J. K.B. 217; [1913]
1 K.B. 83; 107 L. T. 673; 20 Manson, 1;
57 S. J. 96.
" To proceed " in a Cause or Matter.] — See
Deighton v. Cockle, 81 L. J. K.B. 497 ; [1912]
1 K.B. 206; 105 L. T. 802.
" Total value."] — See Inland Revenue Com-
ynissioners v. Camden (Marquis), 84 L. J.
K.B. 145; [1915] A.C. 241; 111 L. T. 1033;
58 S. J. 782; 30 T. L. R. 681.
" Towing gear."] — See The West Cock,
80 L. J. P. 97 ; [1911] P. 208 ; 104 L. T. 736 ;
55 S. J. 329; 27 T. L. R. 301.
" Tracks."] — See Toronto Suburban Rail-
way V. Toronto Corporation, 84 L. J. P.C. 108;
[1915] A.C. 590; 112 L. T. 788.
" Trade description lawfully and generally
applied to goods."] — See Lemy v. Watson,
84 L. J. K.B. 1999; [1915] 3 K.B. 731;
13 L. G. E. 1323 ; 32 E. P. C. 508 ; 31 T. L. E.
612.
"Trade or business."] — See Clark, In re;
Pope, ex parte, 84 L. J. K.B. 89; [1914]
3 K.B. 1095 ; 112 L. T. 873 ; [1915] H. B.E.I;
59 S. J. 44.
"Trade purposes."] — See Colley's Patents,
him. V. Metropolitan Water Board, 81 L. J.
K.B. 126; [1912] A.C. 24; 105 L. T. 674;
9 L. G. E. 1159; 76 J. P. 33; 56 S. J. 51;
28 T. L. R. 48.
"Transaction by or with an enemy."] — See
Ingle, Lim. v. Mannheim Continental Insur-
ance Co., 84 L. J. K.B. 491; [1915] 1 K.B.
227 ; 112 L. T. 510; 59 S. J. 59 ; 31 T. L. R. 41.
"Transfer of property."] — See Branson, In
re; Moore, ex parte, 83 L. J. K.B. 1673;
[1914] 3 K.B. 1086; 30 T. L. R. 604.
" Trial."] — See Rex v. Brixton Prison
(Governor) ; Stallmann, In re, 82 L. J. K.B. 8 ;
[1912] 3 K.B. 424 ; 107 L. T. 553; 28 T. L. R.
572.
" Tried and discharged."] — See Rex v.
Brixton Prison (Governor) ; Stallmann, In re,
82 L. J. K.B. 8 ; [1912] 3 K.B. 424 ; 107 L. T.
553; 77 J. P. 5; 23 Cox C.C. 192; 28 T. L. E.
572.
" Tunnel."] — See Schweder v. Worthing
Gas Light and Coke Co., 81 L. J. Ch. 102;
[1912] 1 Ch. 83; 105 L. T. 670; 76 J. P. 3;
10 L. G. R. 19; 56 S. J. 53; 28 T. L. R. 34.
1877
WORDS.
1878
" Two clear days."] — See Brammall v.
Mutual Industrial Corporation, 84 L. J. Ch.
474; 112 L. T. 1071; 59 S. J. 382.
"Unavoidable cause."] — See Griffiths v.
Gilbertson d- Co., 84 L. J. K.B. 1312; [1915]
W.C. & I. Eep. 359; 113 L. T. 628.
"Unconditional."] — See Robert d Co. v.
Marsh, 84 L. J. K.B. 388; [1915] 1 K.B. 42;
111 L. T. 1060; 30 T. L. R. 609.
" Under any contract of service."] — See
Church of England Curates' Employment,
In re, 82 L. J. Ch. 8; [1912] 2 Ch. 563;
[1913] W.C. & I. Eep. 34; 107 L. T. 643;
28 T. L. E. .579.
" Undue preference."] — See Long Eaton
Urban Council v. Att.-Gen.,84: L. J. Ch. 131;
[1915] 1 Ch. 124 ; 111 L. T. 514 ; 79 J. P. 129 ;
13 L. G. E. 23; 31 T. L. R. 45; and Att.-Gen.
V. Ilford Urban Council, 84 L. J. Ch. 860;
13 L. G. E. 441.
"Unfit for human habitation."] — See Hall
V. Mayichester Corporation, 84 L. J. Ch. 732;
79 J. P. 385; 31 T. L. R. 416.
"Unmarried."] — See Jones, In re; Last v.
Dobson, 84 L. J. Ch. 222; [1915] 1 Ch. 246;
112 L. T. 409; 59 S. J. 218.
" Unreasonably refuses or neglects."] — See
Rushton V. Skey d Co., 83 L. J. K.B. 1503;
[1914] 3 K.B. 706 ; [1914] W.C. i I. Eep. 497 ;
111 L. T. 700; 58 S. J. 685 ; 30 T. L. E. 601.
" Unregistered club."] — See Lees v. Lovie,
81 L. J. K.B. 978; [1912] 2 K.B. 425;
107 L. T. 165 ; 76 J. P. 372 ; 28 T. L. E. 441.
" Unregistered company."] — See Victoria
Society, Kuottingley, In re, 82 L. J. Ch. 176;
[1913] 1 Ch. 167; 107 L. T. 755; 20 Manson,
76; 57 S. J. 129 ; 29 T. L. E. 94.
"Use as a trade mark."] — See Lea, Lim.,
In re, 81 L. J. Ch. 489; [1912] 2 Ch. 32;
106 L. T. 410; 29 E. P. C. 165; 56 S. J. 308;
28 T. L. R. 258.
" Used or proposed to be used."] — See
Neuchatel Asphalte Co.'s .Application, In re,
82 L. J. Ch. 414 ; [1913] 2 Ch. 291 ; 108 L. T.
966; 30 R. P. C. 349; 57 S. J. 611;
29 T. L. R. 505.
" Using."] — See Moses v. Raywood, 80 L. J.
K.B. 823; [1911] 2 K.B. 271; 105 L. T. 76;
75 J. P. 263.
"Using" House for the Purpose of Betting
with Persons "resorting" thereto.] — See
Taylor v. Monk, 8:3 L. .J. K.B. 1125; [1914]
2 K.B. 817; 110 L. T. 980; 78 J. P. 194;
24 Cox C.C. 156; 30 T. L. R. 367.
" Valuation list in force."] — See Metro-
politan Water Board v. Phillips, 82 L. J.
Ch. 89; [1913] A.C. 86; 107 L. T. 659;
77 J. P. 73; 10 L. G. R. 983; 57 S. J. 95;
29 T. L. R. 71
" Value."] — See Rex v. Sunderland Cus-
toms and Excise Commissioners, 83 L. J.
K.B. 5.55; [1914] 2 K.B. 390; 110 L. T. 527;
78 J. P. 185 ; 12 L. G. R. 580 ; 30 T. L. R. 298.
"Value of the property."] — See Angel v.
.Jay, 80 L. J. K.B. 4.58: [1911] 1 K.B. 666;
103 L. T. 809; 55 S. J. 140.
" Vendor."] — See Mayner v. Payne, 83 L. J.
Ch. 897; [1914] 2 Ch. 555; 111 L. T. 375;
58 S. J. 740.
" Vessel used in navigation."] — See Weeks
V. Ross, 82 L. J. K.B. 925 ; [1913] 2 K.B. 229 ;
108 L. T. 423 ; 77 J. P. 182 ; 12 Asp. M.C. 307 ;
23 Cox C.C. 337 ; 29 T. L. R. 369.
"Waggon."] — See Smith v. Pickering,
84 L. J. K.B. 262; [1915] 1 K.B. 326;
112 L. T. 452 ; 79 J. P. 118 ; 13 L. G. R. 175 ;
31 T. L. E. 55.
" Wholly let out in apartments."] — See
Crow \. Hilleary, 82 L. J. K.B. 380; [1913]
I K.B. 385; 108 L. T. 300; 77 J. P. 164;
II L. G. E. 226; 2 Smith, 410; 29 T. L. E. 147.
" Wholly maintained by voluntary contribu-
tions."]— See Richard Murray Hospital, Inre,
84 L. J. Ch. 184; [1914] 2 Ch. 713; 111 L. T.
710; 79 J. P. 2; 58 S. J. 670; 30 T. L. E. 600.
" Wilful misconduct."] — See Bastable v.
North British Railway, [1912] S. C. 555.
" Withholding consent."] — See Lewis and
Allenbury v. Pegge, 58 S. J. 155.
" Within seven days after service of sum-
mons."] — See Retail Dairy Co. v. Clarke,
81 L. J. K.B. 845; [1912] 2 K.B. 388;
106 L. T. 848; 76 J. P. 282 ; 10 L. G. E. 547 ;
28 T. L. E. 361.
" Without actual fault or privity."] — See
Asiatic Petroleum Co. v. Lennard's Carrying
Co., 84 L. J. K.B. 1281; [1915] A.C. 705;
113 L. T. 195 ; 20 Com. Cas. 283 ; 59 S. J. 411 ;
31 T. L. E. 294.
" Without leaving lawful issue as before
mentioned."] — See Davey, In re; Prisk v.
Mitchell, 84 L. J. Ch. 505; [1915] 1 Ch. 837;
113 L. T. 60.
" Without visible means of support."] —
See Rex v. Radcliffe, 84 L. J. K.B. 2196;
[1915] 3 K.B. 418; 79 J. P. 546; 13 L. G. R.
1192; 31 T. L. R. 610.
" Word."]— See Teofani d Co.'s Trade Mark,
In re, 82 L. J. Ch. 490; [1913] 2 Ch. 545;
109 L. T. 114; 30 R. P. C. 446; 57 S. J. 686;
29 T. L. R. 591. 674.
" Working day."] — See British and Mexican
Shipping Co. v. Lockett, 80 L. J. K.B. 462;
[1911] 1 K.B. 264 ; 103 L. T. 868 ; 16 Com. Cas.
75.
" Workman."] — See Roper v. Freke, 84 L. J.
K.B. 1351; [1915] 3 K.B. 222; [1915] W.C.
1879
WORDS— WOKK AND LABOUR.
1880
& I. Eep. 377 ; 113 L. T. 635 ; 59 S. J. 596
31 T. L. R. 507; Richards v. Pitt, 84 L. J
K.B. 1417; [1915] W.C. & I. Rep. 417
Skailes v. Blue Anchor Line, 80 L. J. K.B
442; [1911] 1 K.B. 360; 103 L. T. 741
65 S. J. 107; 27 T. L. R. 119; Wilmerson v
Lynn and Hamburg Steamship Co., 82 L. J
K.B. 1034; [1913] 3 K.B. 931; [1913] W.C
& I. Eep. 633; 109 L. T. 53; 57 S. J. 700
29 T. L. R. 652; Knight v. Bucknill, [1913]
W.C. & I. Rep. 175 ; 55 S. J. 1245 ; Smith v.
Horlock, [1913] W.C. & I. Rep. 441 ; 109 L. T.
196; and Smith v. Buxton, 84 L. J. K.B. 697;
[1915] W.C. & I .Rep. 126; 112 L. T. 893.
"Wreck."]— See The Olympic, 82 L. J. P.
41 ; [1913] P. 92 ; 108 L. T. 592 ; 12 Asp. M.C.
318; 57 S. J. 388; 29 T. L. E. 335.
" Written proceeding requiring particu-
lars."]— See Robin Electric Lamp Co., In re
{No. i), 84 L. J. Ch. 49; [1914] 2 Ch. 461;
111 Ij. T. 1062; 31 E. P. C. 341.
"Yearly interest of money."] — See Gates-
head Corporation v. Lumsden, 83 L. J. K.B.
1121; [1914] 2 K.B. 883; 111 L. T. 26;
78 J. P. 283; 12 L. G. E. 701; 58 S. J. 453;
and Garstoji Overseers v. Carlisle, 84 L. J.
K.B. 2016; [1915] 3 K.B. 381; 13 L. G. E.
969.
WORK AND LABOUR.
A. Contracts for, 1879.
B. Powers and Liabilities of Architect,
1880.
C. Performance of Work, 1881.
D. Eemcneration, 1884.
A. CONTEACTS FOE.
See also Vol. XV. 1772, 2103.
Right of Sub-contractor to Sue Building
Owner.] — Sub-contractors Iteld entitled on the
facts to sue the building owners as the real
principals in respect of goods supplied through
the building contractors. Crittal Manufactur-
ing Co. V. London County Couiicil, 75 J. P.
203— Channell, J.
Specialists for the supply of steel work for a
building held entitled to sue the building
owner as the real principal in respect of the
goods supplied through the building contractor.
Young v. White, 76 J. P. 14; 28 T. L. E. 87
— Lord Coleridge, J.
Specialists for the supply of door handles
and door fittings held entitled to sue the
builders, as in the circumstances the fact that
the goods supplied had been used by the
builders raised an implied promise by them to
pay for the goods. Ramsden v. Chessum,
110 L. T. 274; 78 J. P. 49; 58 S. J. 66;
30 T. L. R. 68— H.L. (E.)
Employment of Engineer — Contract of
Engineer, whether with Building Owner or
Builder — Liability of Building Owner to
Engineer.] — By a contract between the defen-
dants, a county council, and a builder, it was
provided that the latter in consideration of a
lump sum would build a school for the defen-
dants in accordance with the specification and
directions of their architect. The specification
and the bill of quantities provided for certain
" prime cost " items, including a low-pressure
heating apparatus, for which provisional sums
were to be allowed. The defendants' architect
corresponded with the plaintiff, an engineer,
with reference to his installing the heating
apparatus, and, finding that he was willing to
do so, wrote to the builder requesting him to
accept the plaintiff's tender. The builder
wrote to the plaintiff that the latter 's scheme
had been approved by the architect, and that
he, the builder, would be glad if the plaintiff
would let him have full details. The plaintiff
replied thanking the builder for accepting his
estimate, and promising to send him details.
The plaintiff then proceeded with the work.
The plaintiff having requested that a sum
should be paid to him on account, the architect
refused to certify it to him, but it was paid to
him by the builder. The builder being unable
to pay the plaintiff the balance due to him in
respect of the work, the plaintiff brought an
action against the defendants to recover the
amount : — Held, that the contract for the
heating apparatus was not between the plain-
tiff and the defendants, but between the
plaintiff and the builder only, and that the
defendants were not liable. Crittall Manu-
facturing Co. V. London County Council
(75 J. P. 203) and Young d Co. v. White
(76 J. P. 14; 28 T. L. R. 87) disapproved.
Hampton v. Glamorgan County Council,
84 L. J. K.B. 1506; 113 L. T. 112;
79 J. P. 473; 13 L. G. R. 819— C.A.
Rescission — Innocent Misrepresentation —
Restitutio in Integrum.] — A claim by con-
tractors for the rescission of a contract for the
construction of a railway, on the plea that the
contract had been entered into under essential
error, induced by the innocent misrepresenta-
tion of the railway company as to the nature
of the strata through which the railway
passed, rejected on the ground that restitutio
in integrum had become impossible by reason
of the completion of the railway by the con-
tractors after full knowledge of the facts.
Glasgow and South-Western Railway v. Boyd
d Forrest, 84 L. J. P.C. 157; [1915] A.C. 526
—H.L. (Sc.)
Decision of the Second Division of the Court
of Sessions in Scotland ([1914] S. C. 472)
reversed. lb.
B. POWERS AND LIABILITIES OF
ARCHITECT.
Powers of Architect.] — By clause 16 of a
building contract it was provided that the
architect should, during the progress of the
works, have power to order in writing from
time to time the removal from the works of
any materials which in his opinion were not
in accordance with the specification, and the
substitution of fresh material, and the con-
1881
WOKK AND LABOUE.
1882
tractors were forthwith to carry out such order
at their own cost. Clause 17 provided that
defects or other faults appearing within twelve
months from the completion of the works
arising in the architect's opinion from materials
or workmanship not in accordance with the
drawings and specifications, should, upon the
directions in writing of the architect, be
amended by the contractors at their own cost,
unless the architect should decide that they
ought to be paid for same : — Held, that
clause 16 was intended to apply to emergencies
during the progress of the work, and that
where the architect had seen a piece of work
and had not condemned it the clause no longer
applied ; and that clause 17 applied when in
fact the work was badly done. In the latter
case the architect was no longer acting on an
emergency, but must act judicially. Adcock's
Trustee v. Bridge Rural Council, 75 J. P. 241
— Phillimore, J.
Authority of Architect to Employ Measurer.]
— There is no usage of trade by which the
official architect of a building company, which
has not commenced operations or approved of
plans, or instructed the architect to proceed
with the building, has implied authority to
employ the services of a measurer to the effect
of rendering the building company liable for
the measurer's charges. Black v. Cornelius
(6 E. 581) distinguished. Knox <£• Rohb v.
Scottish Garden Suburb Co., [1913] S. C. 872
— Ct. of Sess.
Liability of Architect for Negligence.] — In
the carrying out of a building contract a large
amount of flooring had to be laid down. Four
years after the building was finished dry rot
broke out under the floors, and upon investi-
gation it was discovered that the design which
was intended to prevent dry rot occurring
had been departed from in certain material
respects. The architect had done nothing to
see that the design had been complied with :
— Held, that the matter was not one of detail
which the architect was entitled to leave to
the clerk of works, and that the architect was
liable in an action for negligence. Leicester
Guardians v. Trollope, 75 J. P. 197— Channell,
J.
C. PERFOEMANCE OF WOEK.
See also Vol. XV. 1780, 2107.
Provision for Payment of Liquidated Dam-
ages for Delay — Failure of Contractor to Com-
plete Contract — Completion by Other Person
— Applicability of Provision as to Payment of
Liquidated Damages.] — A contract for the
construction of certain works by a specified
date contained a clause providing for the pay-
ment of liquidated damages at certain rates
by the contractor for each week's delay beyond
that date. It was further provided that if the
contractor should suspend the works the em-
ployer might take possession of the plant and
materials and engage others to complete the
contract. The contractor became bankrupt
and suspended the works, and the employers
thereupon engaged other persons to complete
them, but they were not completed until at
least six weeks after the date specified in the
original contract. In an action at the instance
of the employers for the loss incurred by them
through the failure of the contractor to fulfil
his contract the pursuers claimed (inter alia)
damages for six weeks' delay at the rates
specified in the liquidated damages clause : —
Held, that, while the pursuers were entitled to
sue for damages for breach of contract, they
could not found on the liquidated damages
clause, as that clause applied only where the
contractor had himself completed the contract,
and could not apply where the control of the
contract, and so of the time taken to complete
it, had passed out of his hands. British
Glanzstoff Manufacturing Co. v. General
Accident, Fire, and Life Assurance Corporation,
[1912] S. C. 591— Ct. of Sess. Affirmed,
[1913] A.C. 143— H.L. (Sc.)
Penalty for Non-completion within Contract
Time — Delay Caused by Extra Works — Final
Certificate of Engineer — Jurisdiction of
Engineer to Determine the Exclusion of
Penalties.] — A building contract entered into
by G. for the erection of artisans' cottages
for an urban council contained the following
conditions and provisions — namely, that in
consideration of the payment of the contract
price by instalments, payable on the certificate
of the council's engineer, the contractor should
within one week from the signing of the con-
tract begin, and within nine months from that
date complete, the contract works, unless
delayed by strikes or lock-outs ; that the
contractor should carry out all necessary
works and complete all works specified in the
plans &c. annexed to the contract, or implied
or incidental thereto, or to be thereafter speci-
fied or required by explanatory instructions or
drawings, being in conformity with the original
specifications &c., and such additional instruc-
tions and drawings not being so in conformity
with the original specifications &c. as should
from time to time during the progress of the
contract work be required by the council's
engineer, subject in case of non-completion
within the contract time to forfeiture out of
the money due to the contractor of a sum of
51. per week for every week elapsing after the
completion of the contract time; that it should
be lawful for the council's engineer, or the
council, by written instructions to make altera-
tions and deviations and to supply omissions
in or to the original specifications &c., and
that such alterations &c. should not vacate
the contract, but should be determined as
thereby provided, and the value thereof de-
ducted from or added to the contract price ;
and that the decision of the council's engineer
" with respect to the amount, state, and con-
dition of the works actually executed and any
other question that might arise concerning the
I'onstruction of the plans, sections, elevations,
rlrawings. and specifications and contract, and
the execution of the works included therein, or
in any wise relating thereto, shall be final and
legally binding and without appeal." The
contract works were in fact not completed
within the contract time, but certain extra
works had been ordered by the council and
were executed by the contractor. The council's
engineer having from time to time given
1883
WORK AND LABOUR.
1884
certificates for the payment of the instalments
of the contract price, by his final certificate
awarded a sum in respect of extra works, but
in that certificate did not refer to or make any
deduction in respect of penalties for non-com-
pletion within the contract time. In an action
by G. for the recovery of portion of the con-
tract price from the council, the council pleaded
that penalties for non-completion within the
contract time had arisen, and that the same
should be deducted from the money due to the
plaintiff, who in reply pleaded that the delay
in completion was caused by the extras ordered
and executed ; and further, that, by reason of
the final certificate of their engineer, the
defendants were estopped from making any
claim in respect of penalties. The jury found
that there was no waiver of the right to
penalties by the defendants, and assessed
damages for delay at SOI. : — Held, that the
jurisdiction conferred upon the council's en-
gineer by the contract did not extend to his
determining whether the penalty clause in the
contract was or was not excluded by the order
for, and execution of, the extras. Held
further (Boyd, J., dissenting), that, as it
appeared that the plaintiff had been prevented
from completing within the contract time by
the extra works ordered, the penalty clause
of the contract was extinguished, and the
plaintiff was entitled to judgiuent on his claim.
Gallivan v. Killaryiey Urban Council, [1912]
2 Ir. E. 3.56— K.B. D.
Time Limit — Impossibility of Performance
within Stipulated Time.] — A firm of joiners
contracted to perform the joiner work on
certain buildings which were to be erected,
and undertook to complete their department
of the work by a specified date. The building
owners entered into similar contracts with
other tradesmen for other departments of the
work, except that the plasterer was not bound
to complete his work within any specified time.
Owing to delay in the execution of the mason's
and plasterer's contracts it became impossible
for the joiners to complete their work within
the stipulated time ; but they completed their
work with all reasonable dispatch after it
became possible for them to proceed with it.
The building owner resisted an action by the
joiners for payment for the work done under
the contract, on the ground that the pursuers,
having failed to complete the work within the
stipulated time, were in breach of their con-
tract : — Held, that in the circumstances the
pursuers were absolved from the obligation of
the time limit, and decree for payment was
granted; per Lord Dundas, on the ground that
it was a condition precedent of the contract
that the pursuers should obtain timeous access
to the premises on which the work was to be
performed, and that, if this was withheld from
them by any cause, they were proportionally
freed from the operation of the time limit ;
per Lord Salvesen, on the ground that the
impossibility of performance was caused by the
act or omission of the building owner, in
respect that he had failed to fix a time limit
for the completion of the plasterer's contract ;
and per Lord Guthrie, on both of the above
grounds. Duncanson v. Scottish County In-
vestment Co., [1915] S. C. 1106— Ct. of Sess.
D. EEMUNEEATION.
See also Vol. XV. 1795, 2112.
Work Done on Land by Builder in Expecta-
tion of Lease — Discontinuance of Work by
Builder — Benefit to Freeholder — Implied Con-
tract to Pay for Work.] — The plaintiff, who
was a builder, entered into an arrangement
under which he was to erect a building on a
piece of land upon the terms that the building
should be in accordance with the requirements
of the freeholder of the land, who upon its
completion should give the plaintiff a lease of
of premises at 90Z. a year, and that the plain-
tiff should sub-let them at 500Z. a year. At
that time the intended freeholder was one W.,
and in the course of certain negotiations
between the various persons interested in the
speculation, but before they had finally come
to terms, certain drawings of a portion of the
work were shewn to the plaintiff, and he was
asked to begin the work. He accordingly did
so, and had proceeded with the work for some
time, incurring considerable expense in exe-
cuting the same, when it was arranged that in
place of W. the defendant should become the
freeholder, and an alteration in the character
of the building was insisted on, which the
plaintiff was unwilling to accept on the
ground that it would involve a considerably
larger expenditure on his part than he had
originally contemplated. He therefore dis-
continued the work, and eventually brought
an action against the defendants to recover
compensation for the amount which he had
expended on the same : — Held, that, the
arrangement being one under which the
plaintiff was to erect the building at his own
cost on the defendant's land, no promise to
pay him for the work executed by him could
be implied from the request to him to start
the work, nor from the acceptance by the
defendant of the benefit of the work. Wheeler
V. Stratton, 105 L. T. 786— D.
Obligation on Contractor to Complete Build-
ing by Specified Date — Wrongful Temporary
Exclusion of Contractor from Site by Third
Person — Consequent Loss to Contractor —
Implied Warranty by Building Owner against
such Wrongful Exclusion — Implied Warranty
of Use of Land not Vested in Building Owner
— Alleged Change in Circumstances making
Contract Inapplicable.] — A contract between
the plaintiff and the defendants, an urban
council, provided that the plaintiff should build
a school for the defendants upon land belonging
to them, that he should be entitled to enter
on the site immediately, and that he should
complete the work by a specified time under
penalties. The only access to the site was
from a certain road, and, as the soil of the
defendants' land was soft, and the side of the
road adjoining that land had not been made
up and was also soft, the contract further
provided that the plaintiff might lay a tem-
porary sleeper roadway from the road to the
site. The contract also provided that, when
the sleeper roadway was removed, the plaintiff
should make a permanent pathway from the
road to the site, and a gateway on the boundary
of the defendants' land, and should do certain
1885
WORK AND LABOUE.
1886
incidental paving work on the adjoining
portion of the road. The plaintiff entered
upon the land and commenced work, but was
forced to abandon it in consequence of certain
claims and the threat of an injunction by E. ,
a third person, the owner of the soil under the
road, who alleged that he had not dedicated
to the public the unmade-up side of the road,
and that that consequently was not a public
highway, but his private property, upon which
the plaintiff was not entitled to enter. As the
result of legal proceedings by the defendants,
E.'s claims were held to be unfounded, and the
plaintiff resumed and completed the work.
The side of the road adjoining the defendants'
land did not become a street vested in the
defendants as local authority, of which they
could give the plaintiff possession for the
purpose of doing the work intended to be done
thereon, until the plaintiff had executed the
greater part of the building work under the
contract. The plaintiff brought an action
against the defendants, claiming damages in
respect of the delay caused by the action
of R. : — Held, that there was no implied
warranty by the defendants against wrongful
interference by third parties with the plaintiff's
free access to the site ; that there was no
implied warranty by the defendants that the
plaintiff should be entitled to have possession
of and do work upon the portion of the road
adjoining the entrance until after the sleeper
roadway had been removed, which meant, until
after the building work, or the greater part of
it, had been completed; that there was no
evidence of any request by the defendants to
the plaintiff that he should stop work ; and that
the fact that the plaintiff was prevented from
laying sleepers in the unmade-up part of the
road did not render the performance of the
contract commercially impossible, or constitute
so complete a change in the circumstances
contemplated by the parties that the contract
was no longer applicable to them ; and,
consequently, that the plaintiff was not en-
titled to recover. Porter v. Tottenham Urban
Council, 84 L. J. K.B. 1041; [1915] 1 K.B.
776 : 112 L. T. 711 ; 79 J. P. 169 ; 13 L. G. R.
216; 31 T. L. R. 97— C.A.
Decision of the Divisional Court (83 L. J.
K.B. 566; [1914] 1 K.B. 663) affirmed. lb.
Lump Sum Contract — Defects in Work —
Right to Recover — Quantum Meruit.] — Certain
builders entered into a contract to carry out a
large number of alterations and repairs to a
house in accordance with specifications for a
lump sum of 264Z. In an action by the builders
to recover this sum the official referee found
that the builders had failed to complete the
contract in the following particulars : First,
the concrete used to underpin a wall was not
in accordance with the specifications either as
to quality or quantity; secondly, certain rolled
steel joists supplied had not been bolted at the
top in accordance with the specifications; and
thirdly, solid columns, four inches in diameter,
had been supplied in place of hollow columns,
five inches in diameter. He therefore held
that the plaintiffs were not entitled to be paid
anything under the contract : — Held, that the
plaintiffs were entitled to recover the lump
sum of 264Z., subject to a deduction of the
amount necessary to make the work corres-
pond with that contracted to be done. The
defects and omissions in the work amounted
only to a negligent performance of the contract
and not to an abandonment of or failure to
complete the contract. Dakin <f: Co. v. Lee,
84 L. J. K.B. 2031; 59 S. J. 650— C.A.
Decision of the Divisional Court (84 Li. J.
K.B. 894) affirmed. lb.
Deviations Sanctioned by Architect — Build-
ings Accepted on Completion.] — A builder
entered into a contract to erect a building in
accordance with certain plans and in con-
formity with a detailed estimate of prices.
The building was erected under the super-
vision of the employers' architect, who during
the course of erection sanctioned certain
deviations from the details of the building set
forth in the estimate. As the building pro-
ceeded the architect granted the usual certifi-
cates, and the instalments of the contract price
were duly paid. When the building was com-
pleted the employers accepted it and entered
into possession. On the builder suing them
for the unpaid balance of the contract price
the employers resisted payment, on the ground
that, in respect of these deviations, the build-
ing was not conform to contract : — Held (Lord
Skerrington dissenting), that the builder was
entitled to recover the balance of the contract
price — per the Lord President, on the ground
that, although the architect had no authority
to sanction the deviations, and consequently a
breach of contract had taken place, the de-
fenders' remedy in the circumstances was
limited to a claim of damages for which they
had no record in the present action ; per Lord
Johnston, on the ground that, as the details
in the contract and estimate were lacking in
precision and ambiguous, it was within the
power of the architect to determine how the
work was to be carried out. Ramsay v. Brand
(25 R. 1212) and Steel v. Young ([1907] S. C.
360) discussed and doubted. Forrest v.
Scottish County Investment Co., [1915] S. C.
115— Ct. of Sess.
Observations on the remedies available to
the parties to a building contract, where there
have been deviations from its terms. lb.
Part of Work to be Supplied by Particular
Maker — Inefficiency of Part Supplied.] — The
plaintiffs, a firm of engineers, undertook to
execute certain works in accordance with
specifications. Under the contract, a wind-
mill had to be obtained from certain makers.
which, when supplied, proved inefficient.
Delay took place in the completion of the con-
tract, and the defendants purported to act
upon the forfeiture clause. The plaintiffs
then, treating the contract as wrongfully ter-
minated by the defendants, sued them on a
quantum meruit : — Held, that the plaintiffs
were not liable for defects in the windmill,
and that they were entitled to recover. Bower
V. Chapel-en-le-Frith Rural Council, 75 J. P.
122; 9 L. G. R. 339— Lawrance, J. New trial
ordered, 75 J. P. 321; 9 L. G. R. 663— C.A.
False Representation as to Nature of Work
— Fraudulent Party Barred from Relying on
Conditions in his Favour." — A railway com-
1887
WORK AND LABOUR.
1888
pany invited tenders for the construction of a
line of railway, and for the information of
intending offerers exhibited what purported to
be a journal of bores taken along the proposed
line. A lump sum written contract was con-
cluded, which stated that the company did not
guarantee the accuracy of the bores, and would
not be liable for claims in respect of any error
in, or omission from, the specification of work
prepared by them. The contractors were also
taken bound (inter alia) to make good any
injury to water pipes caused by their opera-
tions. During the progress of the work it was
discovered that the nature of the ground was
materially different from that which the
journal represented it to be, and it ultimately
appeared that the bores had been taken by
servants of the company, who, as the company
knew, had no skill in such work, and that the
so-called "' journal " was not a record kept by
the borers, but was compiled by the company's
engineer from notes supplied by the borers. In
compiling the " journal," the engineer had in
several instances inserted, not what the borers
said, but what the engineer thought they
meant, with the result that ground was called
" soft " when in reality it consisted, and had
been reported by the borers to consist, of hard
material. It was also discovered that a bridge
required to be built at great expense to carry
certain water pipes, the existence of which was
perfectly well known to the railway company,
but was not disclosed by them to the con-
tractors. In consequence of these circumstances
the work cost far more than the contract price,
on account both of the extra labour required
and of the disorganisation caused by the
unexpected obstacles. The contractors made
frequent protests while the work was in pro-
gress, but were induced to continue by assur-
ances on the part of the company, and by some
extra payments. After the completion of the
line, in an action by the contractors against
the railway company, — Held, that the con-
tractors were entitled to recover in respect of
the extra cost of construction a reasonable
compensation therefor, either in name of
quantum meruit or in name of damages.
Boyd (6 Forrest v. Glasgow and South -Western
Railway, [1911] S. C. 33— Ct. of Sess.
Eeversed on the facts, [1918] A.C. 404—
H.L. (Sc.)
Contract for making Railway Siding — Neces-
sity for Detailed Account of Claim.] — In a
contract for the construction of a railway
siding entered into between a railway com-
pany and a quarry master it was stipulated
that the company should construct certain
works and that the quarry master should
thereafter pay to the company — first, the cost
of the labour expended on the works, and,
secondly, interest on the value of materials
used in connection therewith, as such cost and
interest should be determined by the engineer
of the company. The company having ren-
dered an account of sums said to be diie under
the contract, certified by their engineer, in
which the cost of labour and the value of the
materials employed were stated as lump sums
and without details, the quarry master refused
to pay the account, and the company there-
upon sued him to enforce payment : — Held,
that the action must be dismissed as prema-
ture on the ground that the pursuers had made
no proper demand under the contract, and
that, although the contract made the engineer
the final judge of the amount due, this did
not absolve the company from the necessity
of giving particulars of their claim. Held,
further, that as the reference to the engineer
was a reference to him as a man of skill, he
was entitled to arrive at his determination by
whatever methods he chose, and was not
bound to take evidence or hear parties. North
British Railway v. Wilson, [1911] S. C. 730
— Ct. of Sess.
Arbitration Clause — Reference of Matters to
Building Owners' Architect — Payments on
Certificate of Arbitrator — Improper Delay in
Issue of Final Certificate — Architect Im-
properly Influenced by Building Owners — Dis-
qualification.]— Under a building contract the
decision of the architect of the building owners
relating to any matters or thing or the good-
ness or sufiiciency of any work, or the extent
or value of any extra or omitted work, was to
be final, conclusive, and binding on all parties ;
and payments as the work proceeded were to
be made on the certificate of the architect.
The architect having taken a wrong view of
his position and being improperly influenced
by the building owners, delayed issuing his
certificate for the outstanding balance due to
the contractor. After the work had been com-
pleted and after the period of maintenance
had expired, the contractor brought an action
against the building owners to recover the
balance due to him. After the commencement
of the action the architect issued his final
certificate : — Held, that the building owners
could not, as a defence to the action, rely on
the issue of the certificate being a condition
precedent to the right of the contractor to
commence proceedings for the recovery of the
balance, or on the certificate itself as being when
issued an adjudication, as to the amount of the
claim, which was binding on the contractor.
Hickman v. Roberts, 82 L. J. K.B. 678;
[1913] A.C. 229; 108 L. T. 436n.— H.L. (E.)
Whether Certificate of Engineer Condition
Precedent to Action.] — A contract for the
supply of machinery contained provisions for
payment of the price by certain instalments to
be paid after production of the certificate of the
purchasers' engineer that such instalments
were due and payable. A portion of the
machinery having been rejected by the pur-
chasers, an action was brought by the sellers
for the unpaid balance of the purchase price
without production of the engineer's certificate
that the balance sued for was due and pay-
able : — Held, on the construction of the con-
tract, that the production of a certificate from
the engineer had not been made a condition
precedent to the right to recover payment, and
accordingly that the action was competent.
Hoioden v. Powell Dufjryn Steam Coal Co.,
[1912] S. C. 920— Ct. of Sess.
" Retention money " — Charge on.] — A build-
ing contract provided that the contractor
should, at his own cost, complete and deliver
to a rural council on or before the date fixed
1889 WOEK AND LABOUE— WOKKMEN'S COMPENSATION. 1890
the whole of certain sewage works for a lump
sum ; but a clause in the conditions incor-
porated in the contract pi-ovided as follows :
"The contractor shall be entitled to payment
for his work in manner following : the work
shall be measured monthly and 80 per cent,
of the value of the work executed shall be
paid to the contractor upon the engineer's
certificate. When the whole of the works have
been certified as duly completed a further sum
of 15 per cent, shall be paid, and the balance
within six mouths after the works shall have
been delivered up to the council and shall have
been certified by the engineer to be com-
pleted. ..." The plaintiffs were mortgagees
of moneys payable to the contractor under the
contract. At the time of the granting of the
mortgage the contractor had already given the
defendants a charge on his retention money
under the contract. On a question as to what
■was assigned to the defendants as retention
money, — Held, that in making the assignment
the contractor intended, and was understood
by the defendants as intending, to include not
only the 5 per cent., but also the 15 per cent.,
as retention money. West Yorkshire Bank v.
Isherwood, 76 J. P. 456; 28 T. L. R. 59^—
Bankes, J.
WORKHOUSE.
See POOE LAW.
WORKMAN.
See WORKMEN'S COMPENSATION.
WORKMEN'S
COMPENSATION.
I. Scope of WoRKiiEN's Compensation Act,
1906; 1890.
II. The Accident.
a. What is an Accident, 1890.
b. Accident Arising Out of and in the
Course of the Employment,
i. Generally, 1900.
ii. Accident in Doing Act With-
out Authority, or in Con-
travention of Rules, 1927.
iii. Industrial Diseases, 1936.
III. Persons Entitled to Claim Compensa-
tion.
a. Workmen.
i. Generally, 1940.
ii. Crew of Fishing Vessels, 1948.
b. Dependants, 1950.
IV. Persons Liable to Pay Compensation,
1952.
V. Contracting Odt, 1955.
Yl. Proceedings to Obtain Compensation.
1. Notice of Accidetit, 1957.
2. Claim for Compensation, 1965.
3. Proceedings in Name of Workman,
1969.
4. Jurisdiction of County Court Judge,
1970.
5. Medical Examination of Workman.
1972.
6. Medical Assessor, 1974.
7. Evidence, 1974.
8. Medical Referee, 1978.
9. Assessing Compensation.
a. By Agreement : Recording of
Memorandum, 1982.
h. Amount of Compensation, 1991.
10. Suspensory Award, 2001.
11. Form and Costs of Award, 2003.
12. Bankruptcy of Employer or Winding-
up of Employing Company, 2004.
13. Claims Under and Independently of
Act, 2006.
14. Remitting Case to Arbitrator, 2009.
15. Costs, 2010.
16. Appeal, 2011.
VU. Review and Redemption of Weekly
Payments.
1. Review.
a. Jurisdiction, 2012.
b. Notice of Application for Review,
2014.
c. Grounds for Review, 2015.
d. Date from which Review may be
Ordered, 2025.
2. Redemption, 2026.
VTTT. Action by Employeb for Indemnity,
2028.
I. SCOPE OF WORKMEN'S COMPENSA-
TION ACT, 1906.
The Workmen's Compensation Act, 1906,
has no application in the case of an accident
happening on a British ship on the high seas
unless the accident happens to a member of
the crew within the provisions of section 7 of
the statute. Schwartz v. India-Rubber, Gutta-
percha, and Telegraph Works, Lim., 81 L. J.
K.B. 780; [1912] 2 K.B. 299; [1912] W.C.
Rep. 190; 106 L. T. 706; 28 T. L. R. 331
— C.A.
II. THE ACCIDENT.
a. "What is an Accident.
See also Vol. IX. 2167.
Injury by Premeditated Assault.] — " Acci-
dent " in the Workmen's Compensation Act,
1906, includes any injury not expected or
designed by the injured workman himself, and
therefore a premeditated injury inflicted on a
workman in the course of his employment, in
pursuance of a criminal conspiracy against
him, may be an " accident " within the mean-
ing of the Act. Nisbet v. Rayne <.(■ Burn
(80 L. J. K.B. 84; [1910] 2 K.B. 689) and
Anderson v. Balfour ([1910] 2 Ir. R. 497)
approved. Murray v. Denholm d Co. ([1911]
60
1891
WORKMEN'S COMPENSATION.
1892
S. C. 1087) disapproved. Trim Joint District
School V. Kelly, 83 L. J. P.C. •220; [1914]
A.C. 667; [1914] W.C. & I. Rep. 359;
111 L. T. 305; 58 S. J. 493; 30 T. L. E. 452
— H.L. (Ir.)
Judgment of the Court of Appeal in Ireland
(47 Ir. L. T. 151; [1913] W.C. & I. Rep.
401) affirmed, Lord Dunedin, Lord Atkinson,
and Lord Parker di.ssenting. lb.
One of a party of workmen, employed in a
wood)'ard to take the place of others who were
on strike, was injured by the attacks of the
strikers, who rushed the police guarding the
yard and assaulted the workers : — Held, that
this was not a case of injury by accident
within the meaning of the Workmen's Com-
pensation Act, 1906. Anderson v. Balfour
([1910] 2 Ir. R. 497) and Nisbet v. Rayne
(80 L. J. K.B. 84; [1910] 2 K.B. 689) dis-
approved. Murray v. Denholm, [1911] S. C.
1087— Ct. of Sess.
Per The Lord Justice-Clerk and Lord
Salvesen ; dub. Lord Dundas : The accident,
if it was an accident, did not arise " out of "
the employment. lb.
Assault by Employer.] — The applicant, an
errand boy in the service of the respondent,
was, while at work, attacked by the respon-
dent with a chopper and so severely injured as
to be totally incapacitated. The respondent
had been in an a.^ylum and was subject to
periodical fits of melancholia : — Held, that the
applicant's injuries were not caused by " acci-
dent." Blake v. Head, [1912] W.C. & I.
Rep. 198; 106 L. T. 822; 28 T. L. R. 321
— C.A.
Cashier — Special Risk — Duty to Carry about
Money — Robbery and Murder.] — A cashier was
employed by certain colliery owners, and it
was part of his regular duty to take weekly
large sums of money from his employers' office
to their colliery by rail for the payment of the
wages of the colliers. Whilst he was thus
engaged he was robbed and murdered in the
train. His widow applied for compensation :
— Held, that the murder was an " accident "
within section 1 of the Workmen's Compensa-
tion Act, 1906, and that it arose not only in
the cour.se of, but also out of, the employment.
Nisbet V. Rayne, 80 L. J. K.B. 84; ^1910]
2 K.B. 689; 103 L. T. 178; 54 S. J. 719;
26 T. L. R. 032- C.A.
Pneumonia Caused by Inhaling Carbon-
monoxide Gas.] — A miner in a coal mine who
had fired a shot returned three minutes after-
wards to the working place, while it was still
full of smoke. Soon after he felt ill, and
ultimately developed pneumonia, of which he
died, the pneumonia being caused by the
inhalation of carbon-monoxide gas. In prii-
ceedings under the Workmen's Compensation
Act it was proved that the firing of shots
was of daily occurrence at the miner's working
place ; that the firing of the shots generated
carbon-monoxide gas in quantities which
varied with the ventilation ; and that on
former occasions the miner had frequently
suffered from headache, giddiness, and
nausea through inhaling the gas. The arbi-
trator having found that the death of the
miner resulted from injury by accident, the
Court refused to disturb his decision, holding
that the unexplained and unforeseen presence
of the gas in fatal quantity on the occasion
in question might reasonably be said to be an
"accident." Kelly v. Auchenlea Coal Co..
[1911] S. C. 864— Ct. of Sess.
Death from Disease — Ptomaine Poisoning
Caused by Sewer Gas — " Injury by accident "
— Notice of Accident — Delay — "Reasonable
cause."] — Except in the case of the industrial
diseases scheduled in the Workmen's Com-
pensation Act, 1906, to which by section 8
the provisions of the Act are to apply, unless
the applicant can indicate the time, the day,
and circumstance and place in which the acci-
dent has occurred, by means of some definite
event, a disease cannot be treated as a personal
" injury by accident " within section 1, sub-
section 1 of the Act, and the applicant is not
entitled to compensation. Eke v. Hart-Dyke,
80 L. J. K.B. 90; [1910] 2 K.B. 677:
103 L. T. 174; 26 T. L. R. 613— C.A.
In July, 1909, a gardener and labourer and
caretaker was ordered by his employer to open
certain cesspools for the purpose of inspection,
and was engaged in such work on four or five
different days. Early in August he became
unwell, and on August 23 saw a doctor, who
thought he was suffering from the smell of
paint. In September another doctor saw him
and considered that he was affected with
sewer-gas poisoning. He died on October 30,
1909, but 110 notice was given to his employer
until December 30. His widow took proceed-
ings for compensation. The application for
arbitration gave no date as to when the alleged
accident occurred. It was admitted that the
man's disease was obscure. The County Court
Judge found that it was not possible to give
any particular day as the date of the accident,
but he decided that the man died from poison-
ing contracted whilst working on the cesspools,
and that the employer was not prejudiced in
his defence by want of notice ; and he awarded
compensation : — Held, that the second limb of
proviso (a) in sub-section 1 of section 2 of th-
Act of 1906 had nothing to do with the
prejudice caused to the employer by the want
of notice, which was dealt with in the first
limb, but said that the want of notice should
not be a bar to proceedings for compensation
if such want was occasioned by a reasonable
cause ; and that under the circumstances there
was " reasonable cause " for not giving the
notice. But held (Kennedy, L.J., doubting),
that there had not been an accident within the
meaning of the Act, that the County Court
Judge's finding was not sufficient to support
his decision, and that consequently no com-
pensation was payable. lb.
Brintons. Lim. v. Turvey (74 L. J. K.B.
474; [1905] A.C. 2.30) distinguished. Broderick
V. London County Council (77 L. J. K.B.
1127 ; [1908] 2 K.B. 807) explained. 7b.
Incapacity Due to Heart Disease.] — A work-
man while engaged in lifting a weight in the
course of his employment felt a pain in the
breast followed by palpitation of the heart. It
was proved that he was found to be suffering
from heart disease of long standing which was
1893
WOKKMEN'S COMPENSATION.
1894
bound to manifest itself sooner or later and
probably in the way described ; and that from
that time his condition became gradually worse
until, eventually, he became permanently in-
capacitated for work as a result of the diseased
state of his heart. It was not proved that the
lifting of the weight had accelerated the pro-
gress of the disease : — Held, that on these
facts the arbitrator was entitled to find, as he
did, that the workman had failed to prove that
his incapacity was due to an " accident "
within the meaning of the Workmen's Com-
pensation Act, 1906. Clover, Clayton d Co.
V. Hughes (79 L. J. K.B. 470; [1910] A.C.
242) distinguished. S pence v. Baird d Co.,
[1912] S. C. 343; [1912] W.C. Rep. 18— Ct.
of Sess.
Accident Causing Loss of Finger — Subse-
quent Employment in Different Work —
Inflammation of Hand — Liability of First
Employer.] — In 1902 a workman employed as
a riveter met with an accident resulting in the
amputation of his forefinger. His employers
paid compensation, and the workman, having
to all appearance completely recovered, was
in 1903 taken on to the liffhter employment
of a caulker at usual wages by the same
employers. lu 1910 the hand became inflamed
as the result of the workman using a new
pneumatic hammer, and the workman claimed
compensation under the Workmen's Com-
pensation Act, 1897, for injury arising out of
the 1902 accident. The County Court Judge
found that the 1902 accident was a contribu-
tory cause to the injury, and made an award
in the workman's favour : — Held, that the
question whether the 1902 accident was a con-
tributing cause was irrelevant, and that the
claim was misconceived. Held, also, that
there was no evidence to justify the County
Court Judge in finding that the first accident
was a contributing cause. Noden v.
Galloways, Lim.. 81 L. J. K.B. 28; [1912]
1 K.B. 46; [1912] W.C. Rep. 63; 105 L. T.
567; 55 S. J. 838; 28 T. L. R. 5— C.A.
Cut Finger — Septic Infection — Amputation
Necessitated.] — A workman while at his home
cut the forefinger of his right hand slightly
with an ordinary clean household knife. He
sucked the wound, bound it up with a clean
rag, and afterwards returned to his work as
fireman on a railway. While so engaged, coal
dust, oil, grease, and other noxious matter
worked through the bandage into the cut,
septic infection supervened, and eventually
the forefinger had to he amputated : — Held,
that to attribute the septic infection to the
workman's employment was at best a mere
" surmise, conjecture, or guess," there being
many possible sources of infection ; and that
therefore the workman's claim under the
Workmen's Compensation Act, 1906, for com-
pensation failed. Chandler v. Creat Western
Baihcay, [1^12] W.C. Rep. 169; 106 L. T.
479— C.A.
Pneumonia Following upon Chill — Chill Due
to Partial Immersion in Water Accumulating
in Pit.] — During the working time in a coal
pit, which was a wet pit, water began
to accumulate owing to a defect in the pump;
and the pump being stopped for repair, the
water accumulated still further. When the
miners found the water rising they decided to
leave the pit, and hastened to the pit bottom,
where they were kept waiting for twenty
minutes, during which time they were
severely chilled by the water, which rose to
their knees, and by exposure to the current
of cold air descending the shaft. One of these
miners on reaching the pit head lingered there
for at least twenty minutes, and on arriving
at his home complained of chill, and next day
suffered from a cough, hoarseness, and pains,
but went to his work. After several days — on
three of which he worked at the pit — he was
found to be suffering from pneumonia, of
which he ultimately died : — Held (Lord
Salvesen dissenting), that the occurrence in
the mine on the day in question was an
" accident," and that there was evidence on
which the arbitrator might competently find
that the deceased's pneumonia was due to that
occurrence. Drylie v. Alloa Coal Co., [1912]
S. C. 549; [1913] W.C. & I. Rep. 213— Ct.
of Sess.
In consequence of an accident in one
of the shafts of a mine the workmen were
withdrawn, and, as only one shaft was avail-
able, some of the men were kept waiting for
a long time at the bottom of the shaft before
they could be broTight up, and wei-e exposed
to a current of cold air. In consequence one
of them got a bad chill which turned to pneu-
monia, of which he died : — Held, that his
death was the result of an accident arising
out of and in the course of his employment,
and that his dependants were entitled to com-
pensation. Drylie v. Alloa Coal Co. ([1913]
S. C. 549) approved. Brown v. Watson, Lim..
83 L. J. P.C. 307; [1915] A.C. 1; [1914]
W.C. & I. Rep. 228; 111 L. T. 347; 58 S. J.
533; 30 T. L. R. 501— H.L. (Sc.)
Judgment of the Second Division of the
Court of Session in Scotland ([1913] S. C.
593; [1913] W.C. & I. Rep. 233) reversed.
Ih.
Pleurisy Following upon Chill.] — A collector
and canvasser, who had contracted pleurisy,
claimed compensation from his employers
averring that in order to finish his work time-
ously one day he had to over-exert himself in
climbing the stairs of a tenement ; that he
became " sweated " and contracted a chill
which developed into pleurisy, and that he
thus sustained an accident in the course of his
employment. The arbitrator, without allow-
ing a proof, dismissed the application as irre-
levant, holding that the workman had failed
to aver an " accident " within the meaning of
the Act : — Held, that the arbitrator was right.
M'Millan v. Singer Sewing Machine Co.,
[1913] S. C. 346; [1913] W.C. & I. Rep. 70
— Ct. of Sess.
Deafness Following upon Chill — Miner
Voluntarily Waiting in Water Accumulated in
Mine through Breakdown of Pump.] — A miner,
aiiout to ascend to the surface at the end of his
shift, in order to be among the first to obtain
a place in the cage, stood for upwards of thirty
minutes in a pool of water which had accumu-
lated in the pit bottom owing to a defect in the
1895
WOEKMEN'S COMPENSATION.
1896
pump. If he had waited his turn upon dry
ground, as he might have done, he could have
reached the cage comparatively dry. Owing
to the wetting he contracted a chill which
produced deafness, causing incapacity : — Held,
that the incapacity was not due to injury by
accident within the Workmen's Compensation
Act, 1903. Drylie v. Alloa Coal Co. (supra)
distinguished. M' Luckie v. Watson, Lim.,
[1913] S. C. 975— Ct. of Sess.
Pilot Jumping into Boat — Getting Wet —
Sciatica.] — A man was employed as a pilot
to take a ketch out of harbour. Having piloted
her out, he attempted to get into his own boat,
towing astern of the ketch, in order to go
ashore. He jumped in, alighting somewhere
near the bows of the boat, with the result that
they went under water, and he was wetted to
the thighs. He was pulled aboard the ketch
again. He ultimately got ashore in the boat.
Subsequently he suffered from sciatica in con-
sequence of this wetting : — Held, that he was
suffering from injury by " accident," and that
the accident arose " out of and in the course
of " his employment within section 1, sub-
section 1 of the Workmen's Compensation Act,
1906. Barbeary v. Chugg, 84 L. J. K.B.
504; [1915] W.C. & I. Kep. 174; 112 L. T.
797; 31 T. L. E. 153— C.A.
Accident Causing Idleness, and Idleness
Producing Obesity.] — The respondent, a work-
man employed by the appellants, was injured
by an accident arising out and in the course
of his employment. The appellants paid him
compensation for three years, and then made
an application for a review of the payments,
on the ground that he had recovered from the
effects of the accident. The evidence was that
the incapacity resulting from the injuries had
ceased, but that enforced idleness for three
years in consequence of the accident had
caused the respondent, who was an elderly
man with a natural tendency to obesity, to
become so obese as to incapacitate him for
his former active employment, and make him
capable of sedentary employment onlj-. The
arbitrator found that he was partially incapa-
citated from work, but that such incapacity did
not result from the accident, and terminated
the compensation : — Held, that he was justi-
fied in so doing on the evidence. Taylor d
Co. V. Clark, 84 L. J. P.C. 14; 111 L. T.
882; 58 S. J. 738— H.L. (Sc.)
Decision of the First Division of the Court
of Session in Scotland ([1914] S. C. 482;
51 Sc. L. E. 418) reversed. 7b.
Accident Causing Disease and Ultimately
Death — Workman Quite Healthy before Acci-
dent— After-effects of Operation Immediate
Cause of Death — Effect of Medical Evidence.]
— A workman received a heavy blow on his
back by accident in the course of his employ-
ment, and was incapacitated for over three
months. He was able to resume work for six
months, but was never as well as he had
always been before? the accident. He was
operated upon for acute kidney trouble, and
the operation was successful, but revealed the
possibility that other causes than the accident
might have brought about his condition. He
ultimately died from the after-effects of a
subsequent operation intended to heal the scar
caused by the first one : — Held, that, having
regard in particular to the fact that he had
always been in good health before the acci-
dent, there was evidence from which the
inference that his death was thereby caused
was properly drawn. Lewis v. Port of London
Authority, [1914] W.C. & I. Eep. 299;
111 L. T. 776; 58 S. J. 686— C.A.
Workman Suffering from Disease — Death
Accelerated.] — Where a workman is suffering
from an internal disease of some standing, the
symptoms of which became acute immediately
after an accident in the course of his employ-
ment, and of which he dies within a short
time, the arbitrator, in proceedings under
the Workmen's Compensation Act, 1906, is
justified in finding that the death was acce-
lerated by the accident, and in awarding
compensation to the workman's dependants.
Woods V. Wilson, Sons d Co., 84 L. J.
K.B. 1067; [1915] W.C. & I. Eep. 285;
113 L. T. 243; 59 S. J. 348; 31 T. L. E. 273
—H.L. (E.)
Decision of the Court of Appeal ([19^ '
W.C. & I. Eep. 569; 29 T. L. E. 72i6)
reversed (Lord Parker and Lord Sumner dis-
senting). Ih.
Death Due to Heart Failure.] — In an arbi-
tration, under the Workmen's Compensation
Act, 1906, the arbitrator found that a farm
labourer, apparently in good health, died
suddenly while engaged, in the course of his
ordinary work, in lifting baskets of corn to
feed a bruising machine ; that the cause of
death was " failure of the heart " ; and that " a
contributing cause of the failure of the heart's
action was the strain arising from the exertion
made by the deceased in repeatedly stooping
to fill the basket with com and then lifting
it when full up to the level of his shoulders in
order to feed the bruiser " : — Held, that there
were no facts stated from which the arbitrator
could competently infer that the death was
due to injury by accident within the meaning
of the Workmen's Compensation Act, since
there was no particular event or occurrence
to which the death could be attributed.
Clover, Clayton d. Co. v. Hughes (79 L. J.
K.B. 470; [1910] A.C. 242) distinguished.
Ritchie v. Kerr, [1913] S. C. 613; [1913]
W.C. & I. Eep. 297— Ct. of Sess.
Death from Heart Weakness Set up by
Operation — Operation not Confined to Injury
Caused by Accident.] — A workman accidentally
ruptured himself in the course of his employ-
ment and was obliged to undergo an opera-
tion for hernia. In the course of the operation
he was discovered to be suffering also from
another hernia of long standing, and both
hernias were operated upon at the same time.
He subsequently died, the cause of death
being found to be heart weakness and degen-
eracy " set up by the strain of the operation.'"
In defence to a claim for compensation the
employers maintained that, death being due
to an operation part of which only was
rendered necessary by the accident, the opera-
tion was a novus actus intervening to break
1897
WORKMEN'S COMPENSATION.
1898
the chain of causation between the accident
and the death : — Held, that on the facts stated
there was evidence to justify the arbitrator in
finding that death was the result of the
accident the workman had sustained in the
course of his employment. Thomson v.
Mutter, Howey £ Co., [1913] S. C. 619;
[1913] W.C. & I. Rep. 241— Ct. of Sess.
Death Accelerated by Workman's Conduct.]
— An accident to a workman in the course of
his employment brought on pneumonia, and
he was sent into hospital. After being there
three days he insisted on leaving and walking
home, although warned by the doctor at the
hospital that this was dangerous to life. Two
days later he died at home, the immediate
cause of death being pneumonia. In an appli-
cation by his widow for compensation, the
arbitrator obtained a report from a medical
referee which stated that the workman's
" folly in leaving the hospital probably
accelerated his death," but that this circum-
stance could not " disestablish the conclusion
that but for the accident " the workman
" would not have died how and when he did
die." On considering the report and the facts
of the case, the arbitrator " found in fact
that but for the accident the deceased would
not have died at the time at which and in the
way in which he did die, and found, in fact
and law, that the said injury by accident was
thus the cause of the death." On appeal by
the employer, — Held, that it was the duty of
the arbitrator to decide, in terms of the actual
words of the First Schedule, whether the
workman's death had " resulted " from the
accident ; and as the arbitrator in his finding
had not decided that question, the case should
be remitted to him to do so and report. The
arbitrator having thereafter reported that he
found as a fact that the death " resulted "
from the accident, the Court, holding that
there was evidence on which he was justified
in coming to this conclusion, affirmed his
decision. Dunnigan v. Cavan and Lind,
[1911] S. C. 579— Ct. of Sess.
Death from Disease Following on an
Accident.! — A workman had a fall from a
ladder whereby his ankle was injured, and he
also suffered from severe pains and general
shock. He was thereafter confined to bed,
and although the injury to his ankle improved,
he continued to suffer pain and remained in
a low state of health, until about a month
after the accident he v/as seized with violent
internal pains and died, the cause of death
being certified as appendicitis peritonitis. In
an arbitration upon a claim by his widow for
compensation, in which two doctors were
examined for each side, there was a conflict
of medical evidence, one doctor for the claim-
ant being of opinion that it was probable that
the workman " would have been alive now had
he not met with the accident," the other being
of opinion that the condition of which the
workman died " was consequent, indirect if
you will, of the accident," and that " in all
probability " he " would not have died but for
the accident." The two doctors examined for
the respondents could see no connection be-
tween the accident and the cause of death.
The arbitrator having found that the death
was the result of the accident, — Held, that
there was evidence upon which that judgment
could be supported. Euman v. Dalziel .(■ Co.,
[1913] S. C. 246 ; [1913] W.C. & I. Rep. 49
— Ct. of Sess.
Incapacity — Supervening Disease — Effect of
Disease to Aggravate Injury.] — A workman
met with an accident to his knee in the course
of his employment. A slight operation became
necessary and was successfully performed, but
three or four days later the w-orkman developed
scarlet fever. The wound subsequently sup-
purated and the knee joint had to be excised,
thereby causing incapacity. The medical evi-
dence was that the suppuration might have
been caused by the scarlet fever, but that,
apart from the accident, it could not have had
I that effect. On an application by the workman
i to recover compensation under the Workmen's
Compensation Act, 1906, — Held, that it fol-
lowed from the medical evidence that the
incapacity resulted from the accident. Brown
V. Kent, Lim., 82 L. J. K.B. 1039; [1913]
3 K.B. 624; [1913] W.C. & I. Rep. 639;
109 L. T. 293; 29 T. L. R. 702— C. A.
j Once it is established that the incapacity of
j a workman has been caused by an accident, it
I makes no difference that a fresh cause, arising
casually and uninvited by any special condition
of the workman, may have aggravated the
injury resulting from the accident and con-
tributed to the incapacity. 75.
Return to Work after Accident — Supervening
Aneurism. 1 — A miner strained his back on
December 7. 1911, and in consequence became
incapacitated for work. On May 1, 1912, a
medical referee certified that he would be able
to resume his usual work in three weeks, and
he returned to work on May 27. He continued
to work, doing a full shift at the coal face
until August 15, when he became totally in-
capacitated, and was found to be suffering
from dilatation of the heart caused by an
aneurism of the aorta. He did not feel
pain in the cardiac region until July, and the
doctors who had attended him previously, in-
cluding the medical referee, had not noticed
any symptoms of heart trouble. In a claim
for compensation the arbitrator was of opinion
that the aneurism was caused by the miner
being engaged between May and August at
work which was beyond his physical powers,
and found that his present incapacity was
not due to the accident of December 7 : —
Held, that the arbitrator was entitled to arrive
at that decision. Paton v. Dixon, Lim.,
[1913] S. C. 1120— Ct. of Sess.
Incapacity Caused by Accident — Incapacity
Caused by Disease — Each Cause Operating
Independently — Each Cause Equally Dis-
abling.]— A workman met with an accident in
the course of his enifiloyment. His employers
admitted liability and paid him a weekly com-
pensation by arrangement with him and not
under the Workmen's Compensation Act,
1906. On May 20, 1912, they stopped payment
of the compensation on the advice of doctors
who reported that the workman was suffering
from heart disease. On July 5, 1912, the
1899
\vork:\ien's compensation.
1900
workman commenced arbitration proceedings
claiming compensation from May 20, 1912.
The County Court Judge found that the heart
disease was not caused by the accident ; that
the workman was suffering from partial in-
capacity for work caused by two things — by
the accident and also by the heart disease,
each cause operating independently of the
other; and that there was no work which the
accident prevented him from doing which the
heart disease did not also prevent him from
doing. On these findings, — Held, that as the
incapacity caused by the accident still con-
tinued, the workman, notwithstanding the
subsequently supervening cause of incapacity,
was entitled to compensation under section 1,
sub-section 1 of the Workmen's Compensation
Act, 1906. Harwood v. Wyken Colliery Co.,
82 L. J. K.B. 414: [1913] 2 K.B. 158; [1913]
W.C. & I. Eep. 317 ; 108 L. T. 282 ; 57 S. J.
300; 29 T. L. E. 290— C.A.
Incapacity for Work — Loss of Eye — Subse-
quent Accident making the Loss Apparent.] —
A workman many years back, while in the
service of a different employer, met with an
accident through which he lost the sight of
one eye, but the loss was not apparent, and
he was able to obtain employment at usual
wages as if his sight had been normal. In
1910, w'hile in the service of the respondents,
he met with a second accident which neces-
sitated the removal of the blind eye and
rendered the loss apparent, as the result of
which, though now completely recovered, he
was unable to obtain further employment in his
trade : — Held idissentiente Fletcher Moulton,
L.J.), that as the second accident did not
cause a physical incapacity, but only revealed
a pre-existing incapacity, the workman was not
now entitled to compensation under the Act.
Ball V. Hunt, 80 L. J. K.B. 655; [1911]
1 K.B. 1048; 104 L. T. 327; 55 S. J. 383;
27 T. L. E. 323— C.A.
^^ Per Fletcher Moulton, L.J. : The words
"incapacity for work" in Schedule I.
clause 1 ih) ought not to be limited to mere
loss of physical power, but include inability to
find employment as a workman resulting from
the injury. A workman guarantees his ability
to do the work for which he is employed,
but he is under no obligation to disclose his
physical defects to his employer. Ih.
Rupture of Aneurism of Aorta — Rupture
Caused by Strain in Performance of Ordinary
Work— Natural and Inevitable Termination of
Disease.! — A workiiKui, who was fifty years
of age, had been employed at the respondents'
tin sheds for ten years. On October 5, 1914,
while shifting tin plates from a pile to a
trolly, he stood on the trolly and was pulling
a box weigliing 2cwt. towards liim with a
tool when his liands let go and ho fell back-
wards dead off the trolly on to the floor. His
death was discovered by a fost-mortem
examination to have been caused by rupture
of an aneurism of the aorta. Sticking the
tool into and drawing the box forward was
the easiest part of the work ; the heavier was
lifting the boxes when the shed heap had got
lower than the heap on the trolly. The
medical evidence was to the effect that it was
the continued strain of ten years' work and
the walls of the arteries gradually getting
weaker accounted for the condition of the
workman ; that the strain in pulling the box
forward was quite sufficient to cause the
rupture of the aneurism, that being the
culminating point ; and that the cause of his
death was the natural and inevitable termina-
tion of his disease, the final burst being
practically instantaneous : — Held, that there
was clearly an " accident " within the mean-
ing of the statutory provision as construed
by the House of Lords in Fenton v. TJiorley
ci Co. (72 L. J. K.B. 787 ; [1903] A.C. 443) ;
and that the facts of the present case were
practically indistinguishable from those of
CloveT, Clayton <{■ Co. v. Hughes (79 L. J.
K.B. 470; [1910] A.C. 242). McArdle v.
Swansea Harbour Trust, [1915] W.C. &
I. Eep. 448 ; 113 L. T. 677— C.A.
Recurrence of Rupture — No Proof of Specific
Accident.] — A farm labourer, while engaged in
his employment, had a recurrence of an old
rupture, which became strangulated and
caused his death. There was no proof of
anything specific having happened to him to
cause the rupture to recur, and the arbitrator
refused compensation to the workman's de-
pendants on the ground that it was not proved
that the workman had met with an accident :
— Held, that it could not be said that the
arbitrator had come to an unreasonable
decision. Walker v. Murray, [1911] S. C. 825
— Ct. of Sess.
Trawler on Fishing Voyage — Admiralty
Directions to Master to Avoid Mine Field —
Trawler Traversing Mine Field Blown up by
Mine — Injury to Engineer.] — The master of a
steam trawler proceeding upon a fishing voyage
was warned by the Admiralty of an enemy's
mine field, and directed to steer a roundabout
course which would avoid it. In spite of these
instructions he steered an easterly course
directly through the mine field towards his
fishing ground. While the vessel was in the
mine field he saw some mines, which he
buoA'ed, and then steered southward to warn
some warships, which he saw in that direction,
of the mines. While on this course the vessel
struck another mine and was blown up. The
chief engineer was severely injured by the
explosion, and claimed compensation. He was
unaware of the Admiralty instructions : —
Held, that the injury was caused by " acci-
dent," and that, as it happened while the
engineer was carrying out the lawful orders
of the master, it arose " out of and in the
course of " the employment within section 1,
sub-section 1 of the Workmen's Compensation
Act. 1906. Risdale v. " Kilmarnock "
(Oivners), 84 L. J. K.B. 298; [1915] 1 K.B.
503; [1915] W.C. & I. Eep. 141; 112 L. T.
4.39; 59 S. J. 145; 31 T. L. E. 134— C.A.
b. Accident Arising Out of and in the Course
of the Employment.
i. Crncrally.
See also Vol. IX. 2180.
Obedience to Directions of Superior Work-
man— Enlargement of Scope of Employment,]
1901
WORKMEN'S COMPENSATION.
1902
—Obedience to the directions of a superior
fellow workman may so enlarge the scope of
employment of a workman that an accident
resulting from an act done in accordance with
those directions, although in contravention of
the express regulations of the employer, may
entitle the workman to compensation under the
Workmen's Compensation Act, 1906, inasmuch
as to impose upon a workman the duty of
ascertaining the authority of a superior fellow-
workman to give such directions would be to
lay upon him an obligation which in many
cases it would be impossible for him to dis-
charge. Geary v. Ginzler, [1913] W.C. & I.
Rep. 314; 108 L. T. 286— C. A.
Workman Acting Reasonably and Within
Ambit of his Employment.] — The applicant,
who was employed as a lighterman by the
respondent, received instructions from him to
take on the early morning flood tide a barge
which was lying in the river Thames to the
south of midstream off a wharf to a certain
place. While waiting until the tide had ebbed
sufficient for him to reach the barge the
applicant stepped into a boat that was lying
on the mud to rest himself. In so doing he
slipped with his foot caught under the thwart
of the boat, and sustained injuries : — Held
(diibitante Eve, J.), that the evidence was
sufficient to support the finding that the
applicant in going to rest in the boat was
acting reasonably and within the ambit of his
employment ; and that therefore the accident
which befell him arose " out of and in the
course of " his employment, within the mean-
ing of section 1 of the Workmen's Compensa-
tion Act, 1906, entitling him to compensation.
May V. Ison, [1914] W.C. & I. Rep. 40;
110 L. T. 525— C. A.
Scope of Employment — Direction to Find a
Job — Extension of Scope of Employment.] —
A boy, who was employed to take trucks full
of wood away from a machine and stack them,
was seen by his employer doing nothing, and
was ordered to find a job. There was nothing
for him to do in connection with the trucking,
and so he started to clear up, this being work
he had been put to two days before. He then
found that the suction pipe or blower of the
machine in connection with which he did the
trucking was blocked up, and he took a stick
and tried to clear it. While doing so he
slipped and put liis hand near a rotary saw
forming part of the machine, with the result
that he was incapacitated. The machine was
a very complicated one, and there were four
men and two boys to attend to it. It was
part of the duty of a boy attending to the
machine to clear the l)lower : — Held, that the
order to find a joi) extended the sphere of the
boy's employment so as to entitled him to
engage himself on any boy's work that was
not obviously improper for him to do, and
therefore that the accident arose out of the
boy's employment, and he was entitled to
compensation under the Workmen's Compensa-
tion Act, 190G, s. 1. Lane v. Lusty, 84 L. J.
K.B. 1342; [1915] 3 K.B. 230; [1915]
W.C. & I. Rep. 326; 113 L. T. 615— C. A.
Assault by Employer.! — The applicant, an
errand boy in the service of the respondent.
was, while at work, attacked by the respon-
dent with a chopper and so severely injured
as to be totally incapacitated. The respon-
dent had been in an asylum and was subject
to periodical fits of melancholia : — Held, that
the applicant's injuries were not caused by
" accident " or l)y an accident arising out of
the employment within the meaning of sec-
tion 1 of the Workmen's Compensation Act.
1906, and therefore that the applicant was
not entitled to compensation under the Act.
Blake v. Head, [1912] W.C. Rep. 198; 106
L. T. 822; 28 T. L. R. 321— C. A.
Employment during Strike — Assault by
Strikers — Special Bargain to Indemnify for
Injury by Strikers — Enlargement of Course of
Employment.] — A master engaged a servant
who was a storekeeper to work for him as a
carter during a strike, on the understanding
that he would indemnify him for any injury
that occurred to him as a result of doing such
work : — Held, that this special contract did
not enlarge the course of the servant's em-
ployment within the meaning of section 1 of
the W^orkmen's Compensation Act, 1906, so as
to enable the servant to recover compensation
under that statute for injuries sustained by
him by being assaulted by strikers at a time
that, in the absence of such enlargement, was
not within the course of his employment.
Poiilton V. Kelsall, 81 L. J. K.B. 774; [1912]
2 K.B. 131; [1912] W\C. Rep. 295; 106 L. T.
522; 28 T. L. R. 329— C. A.
Felonious Assault — Death from Injury —
Risk Incidental to Employment.] — In the
afternoon of May 17, 1913, the yard foreman
of a firm of furniture removers was assaulted
in the yard by a man who was one of the
odd- job men employed at times by the firm.
The foreman died of his injuries. Among his
duties were the taking on of those odd-job men
and also letting out vans to any applicants.
The day before the assault this man applied
for a van for the morning of the following
day, but failed to get it, as he came late.
There was evidence of the rough character of
the odd-job men, and the risk of assault from
them when refused a job. There was no evi-
dence of any risk in connection with letting
out vans : — Held, that the risk of such an
assault was incidental to the employment, and
that the accident therefore arose out of and
in the course of the employment within the
Workmen's Compensation Act, 1906, s. 1,
sub-s. 1. Weekes v. Stead, Lim., 83 Ij. J.
K.B. 1542; [1914] W.C. & I. Rep. 434;
111 L. T. 693; 58 S. J. 633; 30 T. L. R. 586
-C.A.
Engine Driver — Injury by Bombardment —
Whether Arising "out of" Employment.] —
The appellant, who was an etigitu- driver in
the employment of the respondents, a railway
company, was on duty with his engine between
East and W(^st Hartle])ool at the time of the
bombardment of Hartlepool by German war-
ships in Deceiuiter, 1914. A shell burst close
to him, and lie left his engine and sought
shelter behind some tnieks, but went back to
his engine to open the injix-tor in order to
prevent the boiler tubes from getting burnt.
1903
WOKKMEN'S COMPENSATION,
1904
When returning to shelter he was struck by
a splinter of shell and wounded. On his filing
a claim for compensation, the Judge dismissed
the claim, holding that the appellant was not
exposed to additional risk by reason of his
being in charge of the engine and that there-
fore the accident did not arise " out of " his
employment : — Held, on appeal, that as the
appellant was not entitled to compensation
unless he could prove that he was exposed by
the nature of his employment to some special
or peculiar risk beyond that of all other
inhabitants of Hartlepool, the appeal must be
dismissed. Cooper v. North -Eastern Railway,
85 L. J. K.B. 187; [1915] W.C. & I. Kep.
572; 60 S. J. 105; 32 T. L. E. 131— C.A.
Assault by Drunken Man.] — While a carter
was in charge of his employers' horse and van
in a street a drunken man approached and
struck the horse. The carter warned the man
that the horse might hurt him, and the man
thereupon assaulted the carter and struck him
a blow on the head from which he died. On
a claim for compensation by the widow of the
carter, — Held, that, assuming the occurrence
to have been an " accident," it did not arise
" out of " the employment, the risk of being
assaulted by a drunken man not being in any
way specially connected with or incidental to
the employment of a carter; and that the
widow was therefore not entitled to compensa-
tion under the Workmen's Compensation Act,
1906. Warner v. Couchman (81 L. J. K.B. 45 ;
[1912] A.C. 35; [1912] W.C. Eep. 28) fol-
lowed. Mitchinson v. Day, 82 L. J. K.B. 421 ;
[1913] 1 K.B. 603; [1913] W.C. & I. Eep.
324; 108 L. T. 193; 57 S. J. 300; 29 T. L. E.
267— C.A.
Per Buckley, L.J. : To entitle an applicant
to compensation under the Act the occurrence
must be one in whicli there is personal injury
by something arising in a manner unexpected
and unforeseen from a risk reasonably inci-
dental to the employment. 76.
A workman in an iron foundry, while
engaged in his employment there, was struck
by a stranger who had found his way into
the works in a state of intoxication. When
the blow was struck the workman was working
in a stooping position in proximity to boxes of
molten metal. In consequence of the blow,
and of his position when he was struck, the
workman lost his balance and fell between the
boxes, burning and bruising his arm : — Held,
that the arbitrator was entitled to find that
the workman was injured by an accident
arising out of his employment. Macfarlane v.
Shaw (Glasgow). Lim., [1915] S. C. 273;
[1915] W.C. & T. Eep. 32— Ct. of Sess.
Tortious Act — Stone-throwing by Boys.] —
The appellant, a boy of fourtci'ii, was employed
by the respondents at their colliery to pick
stones out of coal passing along a belt.
Another boy, who was similarly employed a
few yards off, mischievously threw a stone
which hit the appellant in the eye, so that he
lost the sight of it. There was a notice pro-
hibiting stone-throwing, but the boys, of whom
there were several, sometimes threw stones at
each other to attract attention. On an appli-
cation by the appellant for compensation the
County Court Judge found that the accident
arose out of the appellant's employment, as he
was exposed to the special risk of stones being
thrown by other boys, and made an award in
his favour : — Held, that the question was one
of fact, and there was evidence which, coupled
with general knowledge as to boys' habits, was
sufficient to support the Judge's conclusion.
Clayton v. Hardwick Colliery Co., 85 L. J.
K.B. 292; 60 S. J. 138; 32 T. L. E. 159—
H.L. (E.) Eeversing, [1914] W.C. & I.
Eep. 343; 111 L. T. 788— C.A.
Cashier — Special Risk — Duty to Carry about
Money — Robbery and Murder.] — A cashier was
employed by certain colliery owners, and it
was part of his regular duty to take weekly
large sums of money from his employers' office
to their colliery by rail for the payment of
the wages of the colliers. Whilst he was thus
engaged he was robbed and murdered in the
train. His widow applied for compensa-
tion : — Held, that the murder was an " acci-
dent " within the meaning of section 1, sub-
section 1 of the Workmen's Compensation Act,
1906, and that it arose not only " in the course
of," but also " out of," the employment, inas-
much as the duty of carrying the money about
subjected the cashier to the special risk of
being robbed and murdered, which was conse-
quently incidental to his employment ; and that
therefore the widow was entitled to compensa-
tion. Challis V. London and South-Westem
Railway (74 L. J. K.B. 569; [1905] 2 K.B.
154) and Anderson v. Balfour ([1910] 2 Ir. E.
497) applied. Nisbei v. Rayne, 80 L. J. K.B.
84 ; [1910] 2 K.B. 689 ; 103 L. T. 178 ; 54 S. J.
719; 26 T. L. E. 632— C.A.
Driver of Taxicab — Shot by Sentry — Risk
Incidental to Employment.] — A taxicab driver
was employed to drive an officer to a fort
guarded by sentries at two o'clock in the morn-
ing. The night was windy and rainy. The
driver in approaching the fort was challenged
by a sentry, but failed to hear the challenge
owing to the wind and rain and the noise of
the engine of the cab, and he was shot by the
sentry. He sought to recover and was awarded
by the arbitrator compensation for the acci-
dent from his employers : — Held, that there
was evidence on which the arbitrator could
properly find that the driver was, from his
employment, more exposed to the risk of such
an accident as occurred than an ordinary
member of the public, and that the arbitrator
was justified in awarding conapensation. Thorn
V Humm ,f Co., 84 L. J. K.B. 1459; [1915]
W.C. & I. Eep. 224; 112 L. T. 888;
31 T. L. E. 194— C.A.
Workman Committing Suicide — Insanity.]
— See Grime v. Fletcher, post, col. 1965.
Drunken Workman — Special Risk of Em-
ployment.]— When a workman in the course
of his employment meets with his death or is
seriously and permanently disabled as the
result of an accident arising out of a special
risk of the employment, the employer is liable
to pay compensation imder the Workmen's
Compensation Act, 1906, to him, or in the case
of death to his dependants, although the acci-
1905
WOEKMEN'S COMPENSATION.
1906
dent was due to his drunken condition. Eraser
V. Riddell rf- Co. ([IQUI W.C. & I. Eep. 125 ;
1913, 2 S. L. T. 377) followed. Williams v.
Llandudno Coaching and Carriage Co.,
84 L. J. K.B. 655; [1915] 2 K.B. 101; [1915]
W.C. & I. Rep. 91; 112 L. T. 848; 59 S. J.
286; 31 T. L. R. 186— C. A.
Frith V. " Louisianian " (Owners) (81 L. J.
K.B. 701; [1912] 2 K.B. 155; [1912] W.C.
Rep. 285), Murphy v. Cooney ([1914]
W.C. & I. Rep. 44; 48 Ir. L. T. 13),
Nash V. " Rangatira " (Owners) (83 L. J.
K.B. 1496; [1914] 3 K.B. 978; [1914] W.C.
& I. Rep. 490), and Renfrew v. M'Crae,
Lim. ([1914] W.C. & I. Rep. 195; 1914,
1 S. L. T. 354), distinguished. lb.
Driver of Traction Engine Falling from
Engine while Drunk.] — The driver of a trac-
tion engine while driving the engine fell from
the footplate and was run over and killed. In
an application for compensation at the instance
of his widow the arbitrator found that the acci-
dent did not arise out of his employment in
respect that the man was under the influence
of drink and unfit for his work at the time of
the accident : — Held, that the accident arose
out of and in the course of the employment.
Eraser v. Riddell dt Co., [1914] S. C. 125;
[1914] W.C. & I. Rep. 125— Ct. of Sess.
Trawler on Fishing Voyage — Admiralty
Directions to Master to Avoid Mine Field —
Trawler Traversing Mine Field Blown up by
Mine — Injury to Engineer.] — The master of a
steam trawler proceeding upon a fishing voyage
was warned by the Admiralty of an enemy's
mine field, and directed to steer a roundabout
course which would avoid it. In spite of these
instructions he steered an easterly course
directly through the mine field towards his
fishing ground. While the vessel was in the
mine field he saw some mines, which he
buoyed, and then steered southward to warn
some warships, which he saw in that direction,
of the mines. While on this course the vessel
struck another mine and was blown up. The
chief engineer was severely injured by the
explosion, and claimed compensation. He was
unaware of the Admiralty instructions : —
Held, that the injury was caused by " acci-
dent," and that, as it happened while the
engineer was carrying out the lawful orders
of the master, it arose " out of and in the
course of " the employment within section 1,
sub-section 1 of the Workmen's Compensation
Act, 1906. Risdale v. " Kilmarnock " (Owners),
84 L. J. K.B. 298; [1915] 1 K.B. .503: [1915]
W.C. & I. Rep. 141; 112 L. T. 439; .59 S. J.
145; 31 T. L. R. 134— C. A.
Ordinary Street Dangers — Coachman Injured
while Cycling to Fetch Employer's Letters.]
— A coachman, in obedience to his orders, had,
from time to time, to fetch his employer's
letters from a post office in a small country
town four miles off, and in doing so he gener-
ally, as his employer was aware, rode a bicycle.
When his employer was at home he might
have to go to the post office every evening ;
at other times he might not go for a fortnight.
On one occasion, when returning with letters,
he was injured through a man lurching against
his bicycle and knocking him over : — Held
(dubitante Lord Johnston), that the accident
arose " out of " the employment, although the
danger was one common to all the users of the
roads, and although, owing to the infrequency
of the coachman's employment, he was not
exceptionally liable to that danger. Hughes
V. Belt, [1915] S. C. 150; [1914] W.C. & I.
Rep. 614— Ct. of Sess.
Charwoman Sent to Post Letter — Injury-
Nature of Risk.] — The applicant, who went to
the respondent's house each day under an
agreement to assist the household staff, was
sent to post a letter for the respondent, and
while going to the post office she slipped and
broke her leg : — Held, that the applicant was
not entitled to compensation, as her employ-
ment did not expose her to any special risk
greater than that of an ordinary person.
Sheldon v. Needham, [1914] W.C. & I. Rep.
274 ; 111 L. T. 729 ; 58 S. J. 6,52 ; 30 T. L. E.
590— C. A.
Use of Master's Horse and Cart by Servant
to Fetch his Box — Terms of Employment —
No Contract by Master to have Box Fetched.]
— A farm servant drove a horse and cart of his
employer's, a farmer, from the farm to a
station five miles away, in order to fetch a box
of his to the farm. On the way to the station
a motor car frightened the horse, with the
result that the servant's left leg was broken
and had to be amputated. It was a term of
his employment that he could have the use of
his employer's horse and cart to fetch his box,
but there was no contractual obligation by his
employer to have it fetched : — Held, that the
accident did not arise " out of " the employ-
ment within section 1, sub-section 1 of the
Workmen's Compensation Act, 1906. Whit-
field V. Lambert, 84 L. J. K.B. 1378; [1915]
W.C. & I. Rep. 48; 112 L. T. 803— C. A.
Canvasser and Collector — Going Rounds on
Bicycle — Fatal Injury Caused by Electric
Tram Car.] — A canvasser and collector in the
employment of a supply company, whilst going
his rounds on a bicycle, was knocked down by
an electric tram car and fatally injured. It
was no part of his duties to ride a bicycle for
that purpose, and although it was permitted it
was neither required nor desired nor encouraged
by his employers : — Held, that under the cir-
cumstances the deceased met his death by an
accident arising out of and in the course of
his employment within the meaning of sec-
tion 1, sub-section 1 of the Workmen's Com-
pensation Act, 1906. M'Neice v. Singer
Seicing Machine Co. ([1911] S. C. 12;
48 Sc. L. R. 15) approved and followed.
Warner v. Couchman (80 L. J. K.B. 526;
[1911] 1 K.B. 351) explained. Pierce v.
Provident CUithing and Supply Co., 80 L. J.
K.B. 831; [1911] "l K.B. 997; 104 L. T. 473;
55 S. J. 363; 27 T. L. R. 299— C. A.
A salesman and collector in the employment
of a firm of sewing machine manufacturers,
whilst riding in the street on a bicycle in the
course of his employment, was kicked on the
knee by a passing horse, and incapacitated for
work : — Field, that the accident arose out of
his employment within section 1 of the Work-
1907
WOKKMEN'S COMPENSATION.
1908
men's Compensation Act, 1906. M'Neice v.
Singer Sewing Machine Co., [1911] S. C. 12—
Ct. of Sess.
Chill Contracted.] — A journeyman baker who
in his rounds delivered bread to his master's
customers on a cold day, and in receiving
money and giving change contracted a chill,
followed by oedema, which disabled him for
a time, was held not to have been injured
" by accident arising out of his employment,"
and not to be entitled to compensation. Deci-
sion of the Court of Appeal (80 L. J. K.B. .526 ;
[1911] 1 K.B. 351) affirmed. Warner v.
Couchman, 81 L. J. K.B. 45; [1912] A.C. 35;
[1912] W.C. Rep. 28; 105 L. T. 676; 56 S. J.
70; 28 T. L. R. 58— H.L. (E.)
Rheumatism Caused by Immersion while
Baling Water in a Pit.] — The pumps in a
ooal pit broke down and the pit became flooded.
Five days after the breakdown a workman
whose ordinary employment was that of a
" brusher," went down the pit in the belief
that he was going to his regular work, but on
reaching the bottom he was directed to bale
the water which had accumulated. He stood
for several hours immersed up to his chest,
and thereby contracted rheumatism, by which
he became incapacitated : — Held, that the
incapacity was attributable to accident arising
out of and in the course of the workman's
emplovment, and entitled him to compensation.
Welsh V. Glasgow Coal Co., [1915] W.C.
& I. Rep. 463; [1915] S. C. 1020— Ct. of Sess.
Death in Consequence of Chill.] — In conse-
quence of an accident in one of the shafts of
a mine the workruen were withdrawn, and, as
only one shaft was available, some of the men
were kept waiting for a long time at the
bottom of the shaft before they could be
brought up, and were exposed to a current of
cold air. In consequence one of them got a
bad chill which turned to pneumonia, of which
he died : — Held, that his death was the result
of an accident arising out of and in the course
of his employment, and that his dependants
were entitled to compensation. Drylie v. Alloa
Coal Co. r[1913] S. C. 549; [1913] W.C. &
I. Rep. 213) approved. Broicn v. Watson,
Lim., 83 L. J. P.C. 307; [1915] A.C. 1;
[1914] W.C. & I. Rep. 228; 111 L. T. 347:
58 S. J. 533; 30 T. L. R. 501— H.L. (Sc.)
Judgment of the Second Division of the
Court of Session in Scotland ([1913] S. C.
693; [1913] W.C. & I. Rep. 233) reversed.
76.
Brewers' Drayman — Continuous Duty in
Streets for Twelve Hours — Leaving Dray to
Get Refreshment.' — A dniyman wIkisc duties
took him into tlic streets for twelve hours
continuously away from his home and his
employers" place of business, while going his
proper rounds, stopped opposite a public house.
He left his dray, crossed the street to the
public house, got one glass of ale there, and
in re-crossing the street to his draj' was run
over and killed. He was not away from his
dray for more than two minutes : — Held, that
the street risk he ran was one incidental to his
employment, and that under the circumstances
of the emploj-ment he was entitled so to pro-
cure reasonable liquid refreshment, and that
the accident therefore arose " out of and in the
course of " the employment within section 1,
sub-section 1 of the Workmen's Compensation
Act, 1906. Martin v. Lovibond d Sons, Lim.,
83 L. J. K.B. 806 ; [1914] 2 K.B. 227 ; [1914]
W.C. & I. Rep. 76: 110 L. T. 455— C. A.
Herd Cycling between Two Farms on which
He was Employed — Risk Unconnected with
Employment.] — A herd who was employed to
look after the stock on two farms, on one of
which he lived, was starting on a bicycle to
traverse the distance between them (535 yards),
along a public road, when a dog, his own
property, collided with the bicycle and knocked
it down, and the herd thereby sustained
injuries from the fall which caused his death :
— Held, that the accident did not arise " out
of " the employment and that his dependants
were not entitled to compensation. Greene v.
Shaw. [1912] 2 Ir. R. 480; [1912] W. C. Rep.
25— C.A.
An accident does not arise " out of " the
employment unless caused by risk peculiar to
that particular employment, and not common,
at least in an equal degree, to the general
public. lb.
Collector Falling on Stair.] — A collector for
an insurance company, whose duty it was to
make a door-to-door collection of premiums,
fell upon a stair which he had occasion to use
while seeking to collect a premium, and was
injured : — Held, that the accident arose out
of and in the course of the employment.
Millar v. Refuge Assurance Co., [1912] S. C.
37— Ct. of Sess.
Gardener Slipping on Footpath.' — The cir-
cumstance that the soil of a footpath which
a workman used as a member of the public was
vested in his employer was held not to render
an injury that he sustained through slipping
and falling while passing along the footpath
on his way to his employment an " injury by
accident arising out of and in the course of '
his employment within the meaning of sec-
tion 1 of the Workmen's Compensation Act,
1906, so as to entitle him to compensation
under that Act. Williams v. .issheton-Smith,
[1913] W.C. & T. Rep. 146; 108 L. T. 200
—C.A.
Commercial Traveller while Drunk Run Over
by Train — Unexplained Death.] — A commer-
cial traveller in the course of his rounds arrived
late in the day at a town where he had
customers. He, however, did not attempt to
transact business, but proceeded to get intoxi-
cated, and while in this condition found his
way to the railw^ay station (where he could get
a train for his home), and when last seen
uninjured he was sitting on a seat on the
platform. After a goods train had passed, he
was found on the line, having been run over by
the train and having sustained injuries from
which he died. No one saw how he got or fell
on to the line : — Held, that the accident did
not arise out of the employment of the deceased.
Whether it even arose in the course of the
employment, qucere. Semble {per the Lord
190'J
WORKMEN'S COAIPENSATION.
1910
Justice-Clerk), that it did not. Renfrew v.
M'Crae, Lim., [1914] S. C. 539— Ct. of Sess.
Engine Driver Alighting from his Engine
during Journey.] — While a fjoods h-ain was
standing in a siding, having drawn up there
for the purpose of allowing an express train to
pass, the engine driver alighted from the
engine. Shortly afterwards his body was
found on the railway line, he having, it was
assumed, been knocked down and killed by a
light engine which came along : — Held, that
the burden had not been discharged which
lay upon the applicant for compensation as the
sole dependant of the deceased of shewing that
the accident was one which arose " out of and
in the course of the employment " of the
deceased within the meaning of section 1 of
the Workmen's Compensation Act, 1906.
Dyhouse v. Great Western Railway, [1913]
W.C. & I. Kep. 491 ; 109 L. T. 193— C. A.
Brakesman on Train — Attending to Points
— Onus of Proof.] — A brakesman was in a
train composed of an engine pushing three
trucks in front without a brake van, when the
train overtook another train consisting of a
brake van behind and an engine in front. The
two trains ran together uncoupled, but buffer
to buffer. They were approaching points
about a quarter of a mile distant, after passing
which the trains were to stop, and the deceased
was to descend and turn the points so as to
enable the trains to run into a siding. The
deceased was seen climbing by the buffers from
the front truck of his own train to the brake
van of the other train, in the act of doing
which he fell and was killed : — Held (Lord
Atkinson dissenting), that it was a legitimate
inference that the accident arose out of and in
the course of the man's employment. Evans
& Co. V. Astlcy, 80 L. J. K.B. 1177; [1911]
A.C. 674; 105 L. T. 385; 55 S. J. 687;
27 T. L. E. 557— H.L. (E.)
Brakesman Riding on Lorry — Duty to Walk
behind Lorry.] — A workman was employed to
attend to the screw brakes at the rear of a
lorry which was carrying a heavy casting,
and it was his duty to walk behind it con-
tinuously to be ready to apply the brakes at
any moment. There was a rule, of which the
workman was aware, that no one but the
driver should ride on the lorry, but in spite
of this lie took his seat besides the driver on
the front of tiie lorry. On being required l)y
the driver, under whose orders he was, to put
on the brakes, he fell in attempting to jump
off the lorry, and was injured. In a claim
for compensation the arbitrator found that
the accidtmt did not arise out of the work-
man's employment : -Held, affirming that de-
termination, that in being on the front of the
lorry instead of walking at the rear, the work-
man had created for himself a risk which was
not incidental to his employment. Revie v.
Cummin fi, [1911] S. C. 1032— Ct. of Sess.
Workman Getting off Waggon to Pick up
his Pipe.] — A workman, wliose duty it was to
load and accompany a train of waggons drawn
by a traction engine, in dismounting from a
waggon on which he was riding, for the pur-
pose of recovering a pipe he had dropped, fell
and was run over by the waggon : — Held,
that the accident arose out of and in the course
of the employment. M' Laughlan v. Anderson,
[1911] S. C'. 529— Ct. of Sess.
Traveller — Duty at Goods Yard — Attempt to
Cross Railway Lines — Fatal Accident.] — A
workman was employed as a traveller, and it
was his duty to inspect scrap iron consigned
to his employers at various railway stations.
After one of such inspections at a goods yard
he had in the course of his employment to
return to the warehouse, and in order to do so
he attempted to cross the lines of railw-ay, but
was killed by shunting operations : — Held,
that as the workman was doing something in
the course of his employment and was not
acting outside its scope, his dependants were
entitled to compensation from his employers.
Sanderson v. Wright, Lim., [1914] W.C. &
I. Eep. 177 ; 110 L. T. 517 ; 30 T. L. E. 279
— C.A.
Injury by Falling Slate during Gale.] —
During a severe gale an engineer's fitter was
engaged in erecting machinery in an open yard
near to a building from the roof of which slates
■U'Cre being blown. While stooping to adjust a
large piece of machinery, he was struck on the
head by a falling slate and injured : — Held,
that the arbitrator was entitled to find that the
accident arose out of the employment.
Adamson v. Anderson <& Co., [1913] S. C. 1038
— Ct. of Sess.
During a severe gale a carter in charge of a
horse and lorry within his employer's yard was
struck by a sheet of corrugated iron blown
from the roof of an adjoining building, and
was injured : — Held {dub. Lord Dundas), that
the arbitrator was not entitled to find that the
accident arose out of the employment. Adam-
son V. Anderson (supra) distinguished. Guthrie
V. Kinghorn, [1913] S. C. 1155— Ct. of Sess.
Dangerous State of Roof in Servant's Sleep-
ing Apartment.] — A domestic servant, em-
ployed in a private hotel, was called by her
mistress at six o'clock in the morning to light
the fire in the kitchen range. While in the act
of getting up to do so, some mortar from the
rendering attached to the slates fell into her
right eye, in consequence of which she lost the
sight of that eye. Handfuls of mort;ir had
often before fallen from the slates above the
servant's sleeping room to the knowledge of
her employer : — Held, that the accident arose
out of and in the course of the employment.
Aldridge v. Merry, [1913] 2 Ir. U. 308:
[1913] W.C. & I. Eep.' 97— C.A.
Fever Hospital Attendant Contracting Fever
— Proof as to Time and Place.] — .\ workman is
not entitled to recover compensation under the
Workmen's Compensation Act, 1906, unless he
can satisfy the Court of the particular time,
place, and circumstances in which the injury
by accident alleged by him happened. The
applicant was employed as a porter at a scarlet
fever hospital, and among his duties was that
of cleaning out tiie mortuary. He had an
attack of influenza in February. 1911, and
returned to work on March 22. On April 1,
1911
WORKMEN'S COMPENSATION.
1912
and for some days previous to that date, he
was out and in the fever ward, and on April 1
he cleaned out the mortuary. There was no
proof that at that time there was in the mor-
tuary any dead body of a person who had
died of scarlet fever. Three days later the
applicant was found to be suffering from
scarlet fever which incapacitated him for work.
On a claim by him for compensation, the
County Court Judge found that the applicant
contracted fever on April 1 in the mortuary,
and that he contracted it nowhere else ; that
there was an injury by accident within the
Workmen's Compensation Act, 1906; and that
the applicant was therefore entitled to an
award of compensation : — Held, that there was
no evidence to justify the conclusion that there
was a particular time and place at which the
applicant had contracted the disease, and that
the applicant had failed to shew that he had
met with an injury by accident arising out of
and in the course of his employment. Martin
V. Manchester Corporation. [1912] W.C. Rep.
289 ; 106 L. T. 741 ; 76 J. P. 251 ; 10 L. G. E.
996; 28 T. L. R. 344— C. A.
Workman Employed in Removing Sewage
Contracting Typhoid Fever.!— A workman was
employed as a machinery attendant, and part
of his duty consisted in removing sewage out
of the machinery. After having been engaged
several years in this employment he contracted
typhoid fever, of which he died. Medical evi-
dence was given that he might have acquired
the disease by handling the sewage, but no
evidence was given that the removal of the
sewage was the cause of the disease : — Held,
that the evidence did not establish that the
death resulted from an accident in the course
of the employment, and that there was no
right of compensation under the Workmen's
Compensation Act, 1906. Finlay v. Tullamore
Union, [1914] 2 Ir. R. 233— C.A.
Injury to Finger while Removing Sock
before Commencing Work.] — In the cotton
mill where the applicant was a minder it was
the practice for the workers, for their own con-
venience, and it might be in order to do more
efficient work, to take off their coats and
waistcoats, and usuallj', although not univer-
sally, they also worked without socks. The
applicant, just before commencing work, in-
jured his finger in the course of removing a
sock, and was thereby incapacitated for some
time from doing his work : — Held, that the
accident did not arise out of the employment,
and therefore that the applicant was not en-
titled to compensation under the Workmen's
Compensation Act, 1906. Peel v. Lawrence,
[1912] W.C. Rep. 141; 106 L. T. 482;
28 T. L. R. 318— C.A.
Master of Workhouse — Fall Down Steps of
Residence in Workhouse — Giddiness Caused by
Cough.] — The master of a workhouse was
sitting on the top of some steps leading to his
residence at the workhouse, there being
nothing peculiar or particularly dangerous
about them, talking to the labour master,
when a fit of coughing came on, caused by a
disease of his lung, which made him giddy,
and he fell down the steps and received an
injury which caused his death a few days
afterwards : — Held, that the accident did not
arise out of his employment, and his depen-
dants were not entitled to compensation.
Butler V. Burton-on-Trent Union, [1912]
W.C. Rep. 222; 106 L. T. 824— C.A.
School Janitor Injured by Falling in Street
through Faintness.]- — A school janitor convey-
ing a message on school business through the
streets of Paisley about noon on a hot July day
was overcome by giddiness or faintness brought
on by the heat, and fell, struck his head
against the pavement, and sustained injuries
of which he died : — Held, that the accident did
not arise out of his employment. Rodger V.
Paisley School Board, [1912] S. C. 584;
[1912] W.C. Rep. 157— Ct. of Sess.
Accident Causing Disease and Ultimately
Death — Workman Quite Healthy before Acci-
dent — After-effects of Operation Immediate
Cause of Death — Effect of Medical
Evidence.] — A workman received a heavy blow
on his back by accident in the course of his
employment, and was incapacitated for over
three months. He was able to resume work
for six months, but was never as well as he
had always been before the accident. He was
operated upon for acute kidney trouble, and
the operation was successful, but revealed the
possibility that other causes than the accident
might have brought about his condition. He
ultimately died from the after-effects of a
subsequent operation intended to heal the scar
caused by the first one : — Held, that, having
regard in particular to the fact that he had
always been in good health before the accident,
there was evidence from which the inference
that his death was thereby caused was properly
drawn. Lewis v. Port of London Authority,
ri914] W.C. & I. Rep. 299; 58 S. J. 686—
C.A.
Tuberculosis Supervening — Death Acceler-
ated by the Accident.! — On July 2, 1914, an
uccident happened to a workman. He was
^aken to a hospital, where he remained until
July 15, when he was taken to the workhouse
infirmary. There he stayed until October 14.
On that date he was taken back to his home.
On October 16 he was found to be suffering
from acute and active tuberculosis, and he
was taken to another workhouse infirmary,
where he died on December 2. The accident
iffected the workman mentally at first and
for some considerable time afterwards. One
of the doctors stated that he had diagnosed
t-he case, and that the workman was admitted
to the infirmary with a diagnosis of general
paralysis of the brain. There were signs of
chronic bronchitis, but no definite signs of
pulmonary tuberculosis were noted, the disease
being quiescent all the time he was an inmate
of the infirmary. Other medical evidence was
to the effect that it was a bad case, going very
rapidly when the doctor saw the workman, and
that it might have been going three months
before. A post-mortem examination was held
upon the body, and as a result of that the
doctor who made it stated that the workman
had been suffering from double pulmonary
tuberculosis, but latent for two years or longer,
i9ia
WOEKMEN'fS COMPENSATION.
1914
and that in his opinion the acute condition
was of three months' duration. Further medi-
cal witnesses stated that a serious disease,
such as that which was occasioned by the
accident to the woriiraan in the present case,
might have caused the latent tuberculosis to
become acute. In these circumstances it was
decided by the learned County Court Judge
that the dependants of the workman were
entitled to compensation. The employers
appealed. The question was whether upon
the evidence that was adduced before the
learned County Court Judge it was possible
for him properly to come to the conclusion
that the workman's death was the result of
the accident in the sense that it was accele-
rated by the accident : — Held, that there was
evidence which justified the learned County
Court Judge in coming to the conclusion at
which he did — namely, that the death of the
workman was accelerated by the accident, the
same sufficing to set up the diseased condition
of the workman ; and that there was no trace
of novus actus interveniens. Beare v. Garrod,
[1915] W.C. & I. Kep. 438; 113 L. T. 673
— C.A.
Death from Angina Pectoris — Onus of
Proof.] — A workman employed in fairly light
work in a colliery was taken ill. He went
home and died the same day from angina
pectoris. The man's heart was found to be in
bad condition of long standing. The medical
evidence was that angina pectoris might be
brought on by several causes and might be
due to circumstances which could scarcely be
called an accident at all : — Held, that, though
as a matter of conjecture it was probable, it
was not proved as a matter of legitimate
inference from the facts, that the death was
due to an accident arising out of and in the
course of the employment. Barnabas v.
Bersham Colliery Co. (103 L. T. 513) followed
and applied. Clover, Cla2jton <£• Co. v. Hughes
(79 L. J. K.B. 470; [1910] A.C. 242) dis-
tinguished. Hawkins V. Powell's Tillery
Steam Coal Co., 80 L. J. K.B. 769; [1911]
1 K.B. 988; 104 L. T. 365; 55 S. J. 329;
27 T. L. E. 282— C.A.
Wasp Sting — Normal Risk,] — A workman
was stung in the leg by a wasp when working
a threshing machine, and as the result of the
eting died subsequently of blood poisoning : —
Held, that the workman's widow could not
recover compensation because the accident did
not arise out of the workman's employment,
but was due to a risk common to all mankind.
Craske v. Wigan (78 L. J. K.B. 994; [1909]
2 K.B. 635) and Warner v. Couchman
(80 L. J. K.B. 526; [1911] 1 K.B. 351)
followed. Arnys v. Barton, 81 L. J. K.B. 65;
[1912] 1 K.B. 40; [1912] W.C. Eep. 22;
105 L .T. 819; 28 T. L. R. 29— C.A.
Heat Apoplexy.] — A plumber who was
engaged in laying and jointing iron pipes in
the open air on a day of unusual heat, and
who had to stoop at his work, was taken ill
while so employed and died some days after-
wards from heat apoplexy : — Held, that, even
assuming that there had been an " accident,"
it did not arise " out of " the deceased's
employment, as there was no peculiar danger
to which he had been exposed by the nature
of his employment beyond that to which other
persons who had to stoop at outdoor labour on
the day in question were exposed. Blakey v,
Robson, Eckford £ Co., [1912] S. C. 334;
[1912] W.C. Rep. 86— Ct. of Sess.
Death Due to Apoplexy Brought on by Over-
exertion.]— A gate keeper employed at a flax
mill — whose duty it was, besides attending to
the gate, to take charge of the ambulance
appliances for use in cases of accidents occur-
ring in the works, to telephone for the doctor
in case of necessity, and to attend personally
to minor accidents — was informed, while on
duty, of a scaffold accident in the works to
some slaters, who were not in the employment
of the flax spinners, but who were engaged in
doing work at the mill. The gate keeper ran
to the scene of the accident, and then back to
the gate to telephone for a doctor. The exer-
tion of running and the excitement brought on
an apoplectic shock, from which he died in a
few hours : — Held, that the death of the work-
man was due to an accident arising out of and
in the course of his employment. Aitken V.
Finlayson, Bousfield d Co., [1914] S. C. 770
— Ct. of Sess.
Injury Producing Paralysis.] — Where a
workman while engaged at work which he was
employed to do sustained a partial fracture of
his spine, which led in time to paralysis,
producing a condition that resulted in his death
about nine months after the occurrence of the
accident, it was decided that the Court was
bound to draw the inference that the death
was due to an accident that arose " out of and
in the course of the employment " of the
deceased workman. Hewitt v. Stanley ,[1913']
W.C. & I. Rep. 495; 109 L. T. 384— C.A.
Right to Occupy Cottage in Return for Per-
formance of Additional Duties — Death Caused
while Sleeping in Cottage — Tenancy.] — A
workman, who was employed as a steel-tester,
was permitted by his employers to occupy a
cottage adjoining their offices on the terms of
a written memorandum by which he agreed to
be responsible for the cleaning of the offices
and other duties, in return for which he could
live in the cottage, rent and rates free, with
coal and light provided. The cleaning and
other duties were performed by his daughters.
The workman was killed while sleeping in the
cottage by the escape of gas from a stove in
the basement of the offices into his bedroom.
On an application for compensation by his
deptmdants it was held tliat death had been
caused by an accident arising out of and in the
course of the employment, the memorandum
constituting a contract of service by which the
workman was obliged to sleep in the cottage,
and compensation was awarded : — Held (Ken-
nedy, Tj.J., dissenting), that the written
memorandum was merely a tenancy agreement
embodying a contract for services, and that
there was no evidence to support the award of
the County Court Judge. Wray v. Taylor
Brothers d Co., [1913] W.C. & L Rep. 446;
109 L. T. 120— C.A.
1915
WORKMEN'S COMPENSATION.
1916
Seaman Drinking Water Containing Caustic
Soda.l — A seaman, employed on a vessel lying
in a Mediterranean harbour, received injuries
through drinking from a tin water which
contained caustic soda. The drinking water
for the crew was supplied from a pump, but,
this water not being cold, the crew were in
the habit of drawing it off in their tins, which
they placed in cool places to allow the water
to cool, and the tins were then used indis-
criminately by any members of the crew. The
practice was known to, and sanctioned by,
the ship's officers. The tin containing the
soda did not belong to the seaman in question,
but he, finding it in a cool place, drank from
it in the belief that it contained pure water
which had been placed there to cool : — Held,
that there was evidence on which the arbi- j
trator was entitled to find that the seaman's
injuries were caused by an accident arising
out of and in the course of his employment.
M'Kinnon v. Hutchison, [1915] S. C. 867—
Ct. of Sess.
Fireman Falling Overboard.] — A fireman
during his watch in the tropics disappeared : —
Held, that on the facts there was evidence to
justify a finding that the man came on deck
for air, and that he fell overboard in the course
of his employment. Lee v. Stag Line,
[1912] W.C. Eep. 398; 107 L. T. 509; 56 S. J.
720— C.A.
Disappearance of Seaman while on Duty on
Deck." — A sailor was seen by his captain
about 4 A.M. going on deck to keep his watch
from 4 A.M. to 8 a.m. He was complaining
of giddiness and was last seen about 7 a.m.,
and was not found, though search was made
for him : — Held, on a balance of probabilities,
that he had met with his death by accident
arising out of and in the course of his employ-
ment within section 1 of the Workmen's Com-
pensation Act, 1906. " Swansea Vale "
(Owners) v. Rice, 81 L. J. K.B. 672; [1912]
A.C. 238; [1912] W.C. Rep. 242; 104 L. T.
658; 12 Asp. M.C. 47; 55 S. J. 497;
27 T. L. R. 440— H.L. (E.)
Unexplained Disappearance of Seaman from
Ship.l — The second cook employed on board
a steamship left his duties in the galley in the
course of a voyage when the ship was rolling
heavily, and he was not seen again. He
suffered from a disease of the kidneys which
would necessitate his going repeatedly to the
urinal : — Held, that the inference was irresis-
tible that the deceased accidentally fell over-
board and was drowned ; but that, in the
absence of any evidence to shew how he got
out of his galley and fell overboard, there was
nothing to take the case out of the region of
" mere surmise, conjecture, or guess," which
did not suffice to establish the dependants'
claim for compensation. Burwash v. Leyland
d Co., [1912] W.C. Eep. 400; 107 L. T. 735;
66 S. J. 703; 28 T. L. R. 546— C.A.
The unexplained drowning of a seaman who
rose from his sleep and went on deck for the
sake of fresh air, and whose body was found
in the water immediately under his usual
resting place, does not justify the inference of
fact that he met with an accident arising out
of his employment. (The Lord Chancellor and
Lord James of Hereford dissenting.) Marshall
V. " Wild Rose '" Steamship, 79 L. J. K.B.
912; [1910] A.C. 486; 103 L. T. 114; 11 Asp.
M.C. 409; 54 S. J. 678; 26 T. L. R. 608—
H.L. (E.)
The Court may infer from the unexplained
drowning of a seaman while engaged in doing
his duty on board his ship at sea, that the
death was due to an accident arising out of
as well as in the course of his employment.
A workman, who was chief engineer of a
steamship on a voyage from Petrograd to Hull,
gave orders on the evening of June 15, 1913,
that he was to be called at 5.40 a.m. next day,
about two hours earlier than the usual time.
This was done, and at 5.50 a.m. he was seen
in his working clothes walking aft, where he
went behind the wheelhouse. He was never
seen again. The ship was then in the North
Sea, and was due to arrive at its port that
day. The workman had been worried on the
journey about something that had happened
to the propeller, and the propeller could be
seen from aft if a man put his head and
shoulders through the rails at the side of the
ship, or climbed over them. The ship was
steady at the time. The County Court Judge
drew the inference that the man had put him-
self on duty on the morning of the accident
to attend to the niachinerj", and had met his
death in trying to look at the propeller. He
therefore held that the accident arose out of
as well as in the course of the man's employ-
ment, and awarded compensation to his
dependants : — Held, that there was evidence
to support the inference of the County Court
Judge. Proctor v. " Serbino " (Owners),
84 L. J. K.B. 1381; [19151 3 K.B. 344;
[1915] W.C. & I. Rep. 425 : 113 L. T. 640 ;
59 S. J. 629; 31 T. L. R. 524— C.A.
Seaman Found Drowned — Arbitrator's
Decision — Award of Compensation — Evidence
to Support Award. 1 — While the respondents'
steamship was lying in harbour the body of
a man employed on the vessel as cook and
steward, who, when last seen alive, was lying
in his bunk, was found on the following day in
the sea at a short distance from the vessel.
His death was due to drowning and the body
bore no marks of violence. He had never been
seen to be the worse for liquor, but he was
subject to nausea and had been frequently seen
vomiting over the side of the vessel. On an
application by the man's dependants for com-
pensation under the Workmen's Compensation
Act, 1906, the arbitrator drew the inference
that the man had accidentally fallen overboard
and been drowned, and held that the accident
arose out of and in the course of the man's
employment, and awarded compensation : —
Held (Lord Dunedin and Lord Atkinson dis-
senting), that the decision of the arbitrator
must be affirmed as there was evidence to
support it. Kerr for Lendrum) v. Ayr Steam
Shipping Co., 84 L. J. B.C. 1 ; 58 S. J. 737;
30 T. L. R. 664— H.L. (Sc.)
Decision of the Court of Session ([1913]
S. C. 331 ; [1913] W.C. & I. Rep. 10) reversed.
76.
A sailor, whose engagement on a ship was
completed, was leaving the ship by means of
1917
WOKKMEX 'S COMPENSATION.
1918
a ladder to get on to a dolphin, which was a
floating stage belonging to the Port Authority.
He got on to the dolphin, but before he could
reach the bridge connecting the dolphin with
the quay he fell and wa.s killed. In a claim for
compensation by his widow, the County Court
Judge held that the deceased's employment
ceased when he arrived on board the dolphin
owned by the Port Authority, and therefore
that the applicant was not entitled to com-
pensation. The applicant appealed : — Held.
dismissing the appeal, that the employers'
liability ceased when the deceased reached the
dolphin, which was part of the dock premises.
Cook V. " Montreal " (Owners), [1913]
W.C. & I. Rep. 206; 108 L. T. 164; 57 S. J.
282; 29 T. L. R. 233— C.A.
Seaman's Return to Ship.]^The master of
a ship lying in Bangor Roads went on shore,
and after staying about an hour at an hotel
went to the pier and hailed the ship to send
a boat. But before a boat came he fell into
the sea and was drowned. It was not shewn
that he went on shore on the ship's business :
— Held, that the accident did not arise out
of the employment. Fletcher v. " Duchess "
Steamship (Owners), 81 L. J. K.B. 33; [1911]
A.C. 671; [1912] W.C. Rep. 16; 105 L. T.
121; 55 S. J. 598; 27 T. L. E. 508— H.L. (E.)
Decision of the Court of Appeal (sub nom.
Hewitt V. " Duchess " Steamship (Owners),
79 L. J. K.B. 867; [1910] 1 K.B. 772)
affirmed. lb.
A sailor, having been absent on leave, was
returning to his ship, when he fell into the
water. There was no evidence whether he
had ever reached the gangway which led from
the wharf to the ship and was well lighted : —
Held, that the accident arose in the course of
but not out of the employment, and that no
compensation was payable. Kitchenham v.
" Johannesburg " Steamship, 80 L. J. K.B.
1102 ; [1911] A.C. 417 ; 105 L. T. 118 ; 55 S. J.
599; 27 T. L. R. 504— H.L. (E.)
Drunken Sailor — Return to Ship Unfit
for Duty.]- — A sailor who had gone ashore
without leave returned to his ship in a state
a drunkenness. The ship at the time, having
got in her gangways and cast off her ropes
from the quay, was already moving, her deck
being still alongside and level with the wall
of the quay. The sailor, with the assistance
of two persons standing on the quay, was
pushed on to the deck of the ship, where he
fell on his hands and knees. After a minute
or two he tried to get on to his feet, but
staggered backwards and fell into the water
and was drowned, the ship then having moved
about three feet from the wall : — Held, that
the sailor having arrived on board ship unfit
for duty, the accident, which was due solely
to his own drunkenness, was not an accident
arising out of his employment, and accordingly
his dependants were not entitled to compensa-
tion under section 1 of the Workmen's Com-
pensation Act, 1906. Frith v. " Louisiaynan "
(Owners). 81 L. J. K.B. 701; [1912] 2 K.B.
155; [1912] W.C. Rep. 285; 106 L. T. 667;
28 T. L. R. 331— C.A.
A sailor who had been on shore with leave
returned to his ship at night in a drunken con-
dition and started to mount the gangway from
the quay to the ship, holding on to the ropes
on either side. When part of the way up he
let go with one hand, overbalanced, and fell
on to the quay and was killed. The County
Court Judge found on the evidence that the
primary cause of the accident was the man's
drunken condition, but that there were really
two concurrent causes for the accident — first,
the fact that he was mounting the gangway
to return to his employment, and was thereby
subjected to a special risk; and secondly, his
drunken condition. He therefore held that the
accident arose out of the man's employment
and awarded compensation to his dependants :
— Held, by the Court of Appeal (Pickford,
L.J., dissenting), that, as the accident was
caused by the sailor's drunken condition, it
did not arise out of the man's employment
and the dependants were not entitled to com-
pensation. It made no difference for this
purpose that the accident had happened within
the ambit of the employment. Frith v.
" Louisiarnan" (Owners) (81 L. J. K.B. 701;
[1912] 2 K.B. 155; [1912] W.C. Rep. 285)
followed. 'Nash v. " Rangatira " (Owners),
83 L. J. K.B. 1496; [19141 3 K.B. 978;
[1914] W.C. & I. Rep. 490; "ill L. T. 704;
58 S. J. 705— C.A.
Seaman Attempting to Reach Ship in a Boat
without Oars.] — A ship's engineer who had
been ashore in the course of his employment
attempted to reach his vessel, which was
moored one hundred yards from the shore,
alone and without oars in a twenty-seven foot
lifeboat which should have been manned by
a crew of six rowers, trusting that the boat
would be carried in the direction of the vessel
by the force of wind and tide, his only means
of directing its course being by paddling
with the rudder. He was blown out to sea
and was drowned : — Held that the accident
did not arise out of the employment.
Halvorsen v. Salvesen, [1912] S. C. 99— Ct.
of Sess.
Steward on Steamship — Death by Drowning
— Evidence.] — A steward employed on a steam-
ship of the respondents, which was lying in
a harbour, was seen by the captain lying in
his bunk at about 4.30 p.m. partially dressed.
The captain told him to prepare tea for the
crew before the ship sailed at 6 p.m. He was
never seen alive again. His clothing, boots,
cap, purse, and watch were found on a settee
in the saloon out of which his cabin opened,
and the next day his body was found in the
water dressed only in his underclothing. There
were no marks of violence, and death was due
to drowning. There was evidence that he was
a good-tempered, sober, sociable man, and that
he suffered from attacks of nausea and vomit-
ing. In a proceeding by his dependants under
the Workmen's Compensation Act. 1906, the
arbitrator held that he met his death by an
accident arising out of and in the course of
his employment : — Held, that on the facts
admitted and proved there was evidence to
support such finding. Lendrum v. Ayr Steam
Shipping Co., 84 L. J. P.C. 1; [1915] A.C.
1919
WORKMEN'S COMPENSATION.
1920
217; [1914] W.C. & I. Eep. 438; 111 L. T.
875 ; 58 S. J. 737 ; 30 T. L. R. 664— H.L. (Sc.)
Judgment of the Second Division of the
Court of Session in Scotland ([1913] S. C. 331 ;
[1913] W.C. & I. Rep. 10) reversed (Lord
Dunedin and Lord Atkinson dissenting). lb.
Mate of Vessel — Fall from Bridge after
being Ordered Below as Unfit for Duty.]— C.
was mate of a steamship. He came on board
at night heavily under the influence of drink,
and went on the bridge, where, as was his
duty, he took the wheel. Owing to his
dangerous steering, the master ordered him
below as not being fit for duty. C. remained
for eight or ten minutes at the head of the
ladder leading to the deck. A thud was shortly
afterwards heard, and C. was found at the
foot of the ladder with a wound on his head,
from which death subsequently resulted. No
one saw him fall : — Held, that there was no
evidence that the accident arose out of the
employment. Murphy v. Cooney, [1914]
2 Ir. E. 76; [1914] W.C. & I. Rep. 44— C. A.
Sailor Leaving Ship — Accident Due to
Means of Access — Ladder from Quay.] — A
seaman was leaving his sliip on the com-
pletion of his day's work. The ship was
moored against the quay of a harbour, and
the only access to the quay was by a plank
which was laid from the ship to a perpendi-
cular ladder fixed to the side of the quay,
which was the property of the harbour
authority. The man crossed the plank in
safety, but fell from the ladder into the
harbour, and was injured : — Held, that the
ladder being the only means of access from
the ship to the quay, the accident arose out of
and in the course of his employment within
the meaning of the Workmen's Compensation
Act, 1906, s. 1, sub-s. 1. Cook v. " Montreal "
(Owners) ([1913] W.C. & I. Rep. 206)
distinguished. Webber v. Wansbrough Paper
Co., 84 L. J. K.B. 127; [1915] A.C. 51;
[1915] W.C. & I. Rep. 313; 111 L. T. 658;
58 S. J. 685; 30 T. L. R. 615— H.L. (E.)
Decision of the Court of Appeal (82 L. J.
K.B. 1058; [1913] 3 K.B. 615; [1913]
W.C. & I. Rep. 627) reversed. lb.
" Crew to provide their own provisions " —
Seaman on Shore to Purchase Provisions and
Drowned while Returning to Ship.] — A sea-
man had signed articles for a coasting voyage,
which contained the term " Crew to provide
their own provisions." When the ship had
arrived in a harbour he went ashore to buy
necessary provisions, and after doing so left
the shop in the direction of the pier where
the ship was lying. It was a dark, wet,
stormy night, and the next day his body was
found in the water near the pier : — Held, that
the accident by which he lost his life did not
arise out of his employment, as he was not
absent from the vessel in pursuance of a duty
to his employer. Parker v. " Black Rock "
(Owners), 84 L. J. K.B. 1373; [1915] A.C.
725 ; [1915] W.C. & I. Rep. 369 ; 113 L. T.
515; 59 S. J. 475; 31 T. L. R. 432— H.L. (E.)
Decision of the Court of Appeal (83 L. J.
K.B. 421; [1914] 2 K.B. 39; [1914] W.C. &
I. Rep. 116) af&rmed. 7b.
Seaman Returning to Vessel — Fall from
Quay.] — A seaman employed on a ship in
port went ashore after work was over, as he
was entitled to do, partly to buy food (which
under his contract of employment he was
bound to provide for himseK) and partly to
see the town. On returning to the vessel,
before he had reached the gangway, which
was the only access from the quay to the
vessel, he accidentally fell from the quay into
the water and was drowned. The passage
way along the quay from the gangway to
beyond the point where the man fell was
narrowed to a width of two feet by a row of
barrels which were standing on the quay.
The arbitrator found that the accident did not
arise out of the seaman's employment : — Held,
that there was evidence to warrant that find-
ing. Craig v. " Calabria " (Owners), [1914]
S. C. 765— Ct. of Sess.
Discharging Vessel.]— A seaman employed
on board a fishing vessel was engaged in dis-
charging fish from it across a gangway resting
on a floating pontoon. While he was standing
in the middle of the gangway it became
necessary to lower the end of it that rested on
the pontoon. Instead of walking off the gang-
way the seaman caught hold of the stem of
another vessel which was moored alongside,
and swung himself therefrom. While doing
so he slipped and fell into the water, sustain-
ing such serious injuries that he died : — Held,
that the accident arose " out of " as well as
" in the course of " the seaman's employment.
Gallant v. " Gabir " (Owners), [1913] W.C.
& I. Rep. 116; 108 L. T. 50; 12 Asp. M.C.
284; 57 S. J. 225; 29 T. L. R. 198— C. A.
Ship's Carpenter Burnt by Shavings Acci-
dentally Set on Fire by Shore Labourer.] — A
ship's carpenter, working on the poop of a
vessel lying in harbour, was severely burnt
owing to some shavings by which he was sur-
rounded being ignited by a match carelessly
thrown down by a shore labourer. The car-
penter's trousers happened to be saturated with
inflammable oil which had leaked from a
barrel he had shifted in the course of his work,
and thus readily caught fire from the shavings :
— Held, that he was injured by an accident
arising out of and in the course of his employ-
ment. Manson v. Forth and Clyde Steamship
Co., [1913] S. C. 921; [1913] W.C. & I. Rep.
399— Ct. of Sess.
Pilot Jumping into Boat — Getting Wet —
Sciatica.] — A man was employed as a pilot
to take a ketch out of harbour. Having
piloted her out, he attempted to get into his
own boat, towing astern of the ketch, in order
to go ashore. He jumped in, alighting some-
where near the bows of the boat, with the
result that they went under water, and he was
wetted to the thighs. He was pulled aboard
the ketch again. He ultimately got ashore in
the boat. Subsequently he suffered from
sciatica in consequence of this wetting : — Held,
that he was suffering from injury by " acci-
dent," and that the accident arose "out of
and in the course of " his employment within
section 1, sub-section 1 of the Workmen's
Compensation Act, 1906. Barbeary v. Chugg,
1921
WOlilOIEX'S COMPENSATION.
1922
84 L. J. K.B. 504; 11-2 L. T. 797; [1915]
W.C. & I. Hep. 174; 31 T. L. K. 153— C.A.
Sunstroke.] — While a ship on which the
applicant was an officer was in a West Indian
port, loading cargo, the applicant was on
May 31, 1910, posted on a portion of the steel
deck, which was unprotected by an awning,
and he had to lean over a hatchway from
6 A.M. to 11 A.M. to superintend the work. At
11 A.M. he was taken ill with sunstroke, which
resulted in injury to his eyes. In a claim for
compensation under the Workmenis Compen-
sation Act, 1906, the County Court Judge
made an award in favour of the applicant on
the ground that he had been subjected to an
abnormal risk in the course of his employ-
ment : — Held, that there were facts on which
the County Court Judge could come to that
conclusion. Davies v. Gillespie, 105 L. T.
494; 56 S. J. 11; 28 T. L. E. 6— C.A.
Asphyxiation by Fumes of Stove in Cabin.]
— While the respondents' steamship was lying
in port in the Black Sea in February, 1911,
the second engineer, on account of the in-
tensity of the cold, rigged up a stove in his
cabin. He had been allowed by the chief
engineer to use the stove during the daytime,
but was forbidden to use it at night, as it
was dangerous. On February 9 there was no
fire in the stove at 11 p.m., but apparently
the second engineer lit the fire at some period
of the night, and he was found dead the next
morning, having been asphyxiated by the
fumes of the fire. On an application by his
dependant for compensation under the Work-
men's Compensation Act, 1906, the County
Court Judge held that the accident arose out
of and in the course of the deceased's employ-
ment ; he accordingly made an award of
compensation : — Held (Cozens-Hardy, M.K.,
doubting), that there was evidence upon
which the County Court Judge could find as
he did. Edmunds v. " Peterston " (Owners),
28 T. L. R. 18— C.A.
Workman Assisting Fellow Servants to
Work for Ttiird Party.] — A carter in the
service of carting contractors was employed
to deliver goods to consignees. It was his
duty to sling the goods from his lorry into
backle provided by the consignees, but he
had no duty to receive or stow the goods inside
the consignees' warehouse. A custom pre-
vailed among the carters, which was not
proved to have been known to their
employers, that, when several were delivering
goods at the same time, one remained outside
and slung the goods from all the lorries, while
the others entered the warehouse and helped
the consignees' servants to receive and stow
the goods. For these services each carter,
including the one who remained with the
lorries, received remuneration from the con-
signees. When the carter, in accordance with
this custom, was slinging goods from several
lorries belonging to his employers, he was
injured by accident while working on a lorry
other than that of which he was in charge : —
Held, tliat the accident did not arise out of
and in the course of his employment with the
contractors. Goslan v. Gillies, [1907] S. C.
68, distinguished. Carlton v. Sinclair, Lim.,
[1914] S. C. 871— Ct. of Sess.
Travelling in Cart to Receive Wages.] — The
applicant was employed on different farms
belonging to the respondent. Having finished
his work at one farm, the applicant was pro-
ceeding to another, about two miles distant
by road, for the purpose of receiving his day's
pay and to enquire about the work for the
next day. Finding an empty cart belonging
to the respondent returning to the same farm,
the applicant attempted to get into it, and
while so doing an accident occurred to him.
The respondent's workmen not unfrequently
returned in such an empty cart, and this fact
was known to him : — Held, that it was no part
of the applicant's contract of service that he
should travel to his employer's farm by a
cart, whereby he added unnecessarily to the
risk of his employer; and that therefore he
was not entitled to compensation under the
Workmen's Compensation Act, 1906. Parker
V. Pout, 105 L. T. 493— C.A.
Journey by Railway — Returning from Work
— Entering Train in Motion — Added Peril.] —
A workman was employed to work for his
employers in Sheffield and was given a railway
season ticket between that place and Rother-
ham, where he and his employers lived. He
was expected to return to Rotherham and
report at the office at 6 p.m. each day.
Arriving one day late at the station at
Sheffield for the last train that would reach
Rotherham before 6 p.m., he attempted to
enter it while it was in motion, but fell and
suffered injuries from which he died : — Held,
that, by attempting to enter the train while
in motion, the workman exposed himself to
an additional risk by doing an unauthorised
and illegal act, which was not in any way
incidental to his employment, and his depen-
dants were therefore not entitled to compen-
sation. Jibb V. Chadwick, 84 L. J. K.B.
1241; [1915] 2 K.B. 94; ri915] W.C. & I.
Rep. 342; 112 L. T. 878; 31 T. L. R. 185
—C.A.
Workman Injured while Going to His
Work.] — A workman, employed in oil works,
was going to his work at night by a path
(which was one of several means of access
available to him) situated on land leased by
his employers, and provided and maintained
by them as an access for their employees,
although members of the public were also
allowed to use it. At a spot where the path
ran alongside a switchback lie he strayed on
to the lie and was run over by a railway
waggon and killed. The ground on each side
of the spot wliere the accident happened was
oc<^upied by bings and sidings in connection
with the works, but tlie spot was eighty yards
from the nearest building belonging to the
works, and was 330 yards from that depart-
ment of the works to which the deceased's
employment was exclusively confined. An
arbitrator having found that the accident did
not arise out of and in the course of the
employment in respect — first, that the work-
man had only been exposed to the same risks
as any member of the public, while using a
61
1923
WORKMEN'S COMPENSATION.
1924
route of his own choosinjr ; and secondly, that
he had been injured before he reached the
" margin of his employment," — Held, that
the accident arose out of and in the course
of the employment. Nicol v. Young's
Paraffin Light Co., [1915] S. C. 439; [1915]
W.C. & I. Eep. 72— Ct. of Sess.
A miner going to his work went across a
footpath which was a near way to the pit.
Just after leaving the high road he had to
descend some steps cut in the mountain side
to get on to the path. The morning was
frosty and he slipped on the steps and was
injured. The steps were over three-quarters
of a mile from the pit : — Held, that the
accident did not arise in the course of the
man's employment. Davies v. RJiyrnney Iron
d-c. Co. (16 T. L. R. 329) followed. Walters
V. Staverley Coal and Iron Co., 105 L. T.
119; 55 S. J. 579— H.L. (E.)
A workman who was proceeding to his
employers' works took a route that he had
been in the habit of using for many years,
along a footpath which ran across a vacant
piece of land and then on to a railway line
and so on to the works. The property in the
vacant piece of land was vested in the
employers. While on this footpath, at a
distance of little short of a quarter of a mile
from the place where the workman was to go.
he slipped on some ice and injured his ankle :
— Held, that the workman had no right to go,
and his employers could not confer upon him
any right to go, along the railway line; that
another route existed by which he had already
access to his work ; and that therefore the
accident could not be deemed to have arisen
" in the course of " his employment. Gilmour
V. Dorman, Long ,{■ Co., 105 L. T. 54— C.A.
Workman Killed while Returning from
Work.] — A workman, emjiloyed underground
in a coal mine, on finishing his day's work
returned to the surface and was proceeding
home by a track along the side of a private
branch railway line, the property of his
employers, when he was knocked down and
killed by an engine at a point four hundred
yards distant from the mouth of the pit : —
Held, that the accident did not arise out of
and in the course of his employment. Caton
V. Sumnierlee ayid Mossend Iron and Coal Co.
([1902] 4 F. 989) followed. Graham v. Barr
and Thornton, [1913] S. C. 538; [1913]
W.C. & I. Rep. 202— Ct. of Sess.
Death whilst Returning from Work on
Bicycle — Use of Bicycle under Contract of
Service.] — A workman was employed at 6d.
an hour to work his employers' threshing
machines, and he had also to go about the
district allotted to him looking after his em-
ployers' interests. As a term of his contract
of service, he was provided with a bicycle for
going to and from his work as well as for
going from one part of his district to another
in the course of his employment. When he
was working at a distance from the employers'
works he was not expected to return there at
the end of the day, but ceased work each day
at 6 P.M. On September 25, 1912, the work-
man had been engaged in working a threshing
machine some distance away and had stopped
working at 6 p.m. Subsequently, whilst
riding on the bicycle to his home, he was run
into by a motor lorry and killed : — Held, that
the accident did not happen in the course of
the workman's employment and that his
dependants were not therefore entitled to com-
pensation under the Workmen's Compensation
Act, 1906. Edwards v. Wingham Agricul-
tural Implement Co., 82 L. J. K.B. 998:
[1913] 3 K.B. 596; [1913] W.C. & I. Eep.
642; 109 L. T. 50; 57 S. J. 701— C.A.
Cremins v. Guest, Keen if Nettlefold, Lim.
(77 L. J. K.B. 326; [1908] 1 K.B. 469), and
Mole V. Wadtoorth ([1913] W.C. & I. Rep.
160) discussed. Ih.
Actual Work under Contract Ended — Wages
for Past Work — Injury whilst Returning from
Pay Place.] — The applicant was employed at
the respondents' cotton mill as a piecer, her
duty being to assist a minder. By the usage
of the mill wages were made up to Wednes-
day, but were paid on Friday at the mill.
The applicant actually ceased to work under
her contract of service on a Wednesday, and
went on the following Friday to the fifth
floor of the mill to receive her wages for her
past work. She was paid, and was coming
down the stairs of the mill when she slipped
and was injured : — Held (Buckley, L.J., dis-
senting), that the accident arose out of and in
the course of her employment within the
meaning of section 1, sub-section 1 of the
Workmen's Compensation Act, 1906, and that
consequently the applicant was entitled to
compensation. Lowry v. Sheffield Coal Co.
(24 T. L. E. 142) applied. Riley v. Holland,
80 L. J. K.B. 814; [1911] 1 K.B. 1029;
104 L. T. 371; 27 T. L. R. 327— C.A.
Casual Labourer on Farm — Contract of Ser-
vice— Termination of Employment.] — A farmer
employed a proprietor of threshing machines
to supply a threshing machine, accompanied
by two men to drive and feed it, for the pur-
pose of threshing his corn. It was the
practice in the district for several casual
labourers to follow a threshing machine in the
expectation of being taken on by the various
farmers for the threshing. The applicant was
one of six men who were thus taken on by
the farmer. After the threshing was finished
and these men had been paid, they helped the
men with the threshing machine to move it
off the farm on to the roadway. In doing so
the applicant was injured, and he brought
these proceedings, claiming compensation
under the Workmen's Compensation Act,
1906, from the farmer. It appeared from the
evidence that the casual labourers always
helped to get the threshing machine on to
and off the farm, and that it often could not
be done without their help. The farmer
stated that, when he engaged the threshing
machine with two men, he understood he
would have to supply the rest of the labour
on the farm : — Held (dubitante Phillimore,
L.J.), that it was part of the applicant's
employment by the farmer to help in getting
the threshing machine on to and off the farm,
and therefore that the accident arose out of
and in the course of his employment by the
farmer, within section 1, sub-section 1 of the
l'.)2o
WOKKiMEN S COMPENSATION.
192G
Workmen's Compensation Act, 1906. Newson
V. Burstall, 84 L. J. K.B. 535: [1915J
W.C. & I. Rep. 16 : 112 L. T. 792 ; 59 S. J.
204— C.A.
Conveyance of Workman from Work by
Train — Attempt to Get Out at Wrong Place.]
— The applicant, who was in the emploj'ment
of the appellants, a colliery company, was
going home by a train which was run by a
railway company under a contract with the
appellants to carry workmen free to and from
their employment, and in order to shorten
his way home he attempted to jump off the
moving train before it reached the plac« where
it ordinarily stopped for the workmen to
alight. The result was that he was injured :
— Held, that as the applicant had attempted
to get out at a place other than the proper
place, the accident did not arise out of his
employment, and therefore he was not entitled
to compensation. Price v. Tredegar Iron and
Coal Co., [1914] W.C. & I. Eep. 295;
111 L. T. 688 ; 58 S. J. 632 ; 30 T. L. R. 583
—C.A.
Going Home in Employer's Boat — Only
Means of Transit — Injury in Boat before
Landing — Use of Boat Implied Term of Con-
tract.] — A farm labourer employed by the
year worked on his employer's farms, one of
which was situate in the island of Eamsey,
and the other on the mainland of Wales
opposite to the island. His home was on the
mainland. He had no means of crossing
between the island and the mainland except
by a boat of his master's. On December 8,
1912, his employer took him in his boat across
from the island to the mainland. He was
going home, and was not going on his master's
business. Just before reaching land, in trying
to get out of the boat, he slipped and hurt
himself on the gunwale of the boat. Shortly
afterwards he was landed. Next day he died
from the effects of his hurt : — Held, that it
was an implied term of his contract that he
might at all reasonable times go home in his
employer's boat, and that the accident there-
fore arose " out of and in the course of " his
employment within section 1, sub-section 1 of
the 'V\"orkmen's Compensation Act, 1906.
Richards v. Morris. 84 L. J. K.B. 621; [1915]
1 K.B. 221: [1914] W.C. & I. Rep. 112;
110 L. T. 496— C.A.
Inference as to Cause of Death.] — A brick-
layer in the employment of the respondents
returned from work on December 27, 1911,
with a sore on the back of the thumb of his
left hand. The wound appeared to heal, but
ultimately blood poisoning ensued in the arm-
pit, and the workman died on January 30,
1912. His dependants claimed compensation
under the Workmen's Compensation Act.
1906, and evidence was given that injuries
such as this w-ere common in the case of iDrick-
layers. The workman was engaged in cutting
grooves in a wall, and had to use a hammer
and chisel. In doing such work the face of
the hammer might slip off the chisel and hit
the workman's hand. The medical evidence
was that tlie inflammation started under the
man's armpit in the form of an abscess, due
to an inflamed gland, and that an injury to
the back of the thumb might give rise to this.
The doctor was of opinion that the bacillus
got into the man through this injury, but he
said in cross-examination that he could not
say that a dirty condition of the armpit might
not have caused the abscess. The County
Court Judge drew the inference that the man
died from septic poisoning resulting from an
injury which arose out of and in the course of
his employment, and awarded compensation :
— Held, that there was evidence from which
the County Court Judge might infer that the
injury to the workman happened to him while
he was at work, and further that the County
Court Judge was justified in accepting the
evidence of the doctor and holding that the
workman's death was due to the accident.
Fleet V. Johnson, [1913] W.C. & I. Rep.
149; 57 S. J. 226; 29 T. L. R. 207— C.A.
Evidence — Inference.] — A workman em-
ployed on the night shift in the defendants'
colliery went to his work on the night of
Friday, December 9, about eleven o'clock, and
returned at 7.30 the next morning. On his
return there was a red patch on his right arm,
and also a scratch on his thumb. The work-
man died on December 21 of blood poisoning,
which, according to the medical evidence,
resulted from the scratch on the thumb. Evi-
dence was given that there had been some fall
of stone on the man while he was w'orking on
the Friday night. The medical testimony,
however, was to the effect that the red patch
on the arm was caused by inflammation from
the scratch on the thumb, and that no case
had ever been known in which inflammation
had appeared earlier than twelve hours after
the introduction of the septic poisoning. In a
claim for compensation by the workman's
widow the County Court Judge thought there
was no satisfactory direct evidence that the
injury through which septic poisoning was
caused was received at the colliery, but he
was, however, of opinion, on the authority
of Mitchell v. Glamorgan Colliery Co.
(23 T. L. R. 588), that he was entitled to
infer that the probabilities were that the
injury was received at the colliery, and he
concluded that the injury arose out of and in
the course of the employment of the workman.
On an appeal by the employers : — Held, allow-
ing the appeal, that there was no evidence,
and nothing in the case of Mitchell v.
Glamorgan Colliery Co. (supra), which
entitled the County Court Judge to draw the
inference which he did. Jenkins v. Standard
Colliery, 105 L. T. 730; 28 T. L. R. 7— C.A.
Balance of Evidence.] — A collier died
from acute blood poisoning caused, according
to the medical evidence, by septic infection
getting into a superficial abrasion of the skin
just below his kneecap. That was stated to
be a frequent cause of blood poisoning in
colliers, abrasions being occasioned by kneel-
ing on the coal dust while working in a very
narrow seam. The dependant of the deceased
claimed compensation under the Workmen's
Compensation Act, 1906. It was decided by
tlie County Court Judge that if he was allowed
to draw a legitimate inference from the fact
1927
WORKMEN'S COMPENSATION.
19-23
that the deceased had been cutting coal on his
knees in a very narrow seam the conclusion
would be that he was injured while working in
his employer's colliery; but that, according to
the principle laid down in authorities subse-
quent to that of Mitchell v. Glamorgan Coal
Co. (23 T. L. E. 588), other possibilities could
not be disregarded. The dependant appealed :
— Held, that the finding of the County Court
Judge ought not to be interfered with. Howe
V. Fernhill Collieries, 107 L. T. 608; [1912]
W.C. Rep. 408— C. A.
Balance of Probabilities — Inference to be
Drawn.] — On the morning of August 14,1911,
a collier started at his work in his employers'
coal mine having made no complaint to any
one, nor did any one see him walking as if
there was anything the matter with his feet.
Later on he came out of the stall where he
had been working and complained to the head-
man that his foot hurt him. The headman
found in the stall a piece of rock, weighing
about three or four pounds, on the floor, which
had fallen from the roof during the working
hours. On August 19 a doctor examined the
foot and found a small wound about half an
inch in length of a kind that might have been
caused, in the doctor's opinion, by a piece of
stone falling on it, and death, in the doctor's
opinion, was due to tetanus supervening on the
wound. A scratch or nearly healed scar on
the sole of the foot was also discovered. On
August 25 the workman was found to be suffer-
ing from tetanus, from which he died the next
day. The County Court Judge, giving effect
to what was laid down by the House of Lords
in Richard Evans <£• Co. v. Astley (80 L. J.
K.B. 1177; [1911] A.C. 674), held that the
more probable conclusion from the evidence
was that an accident had happened to the
deceased arising out of and in the course of
his employment, the inference to be drawn
therefrom being that the wounds on his foot
were caused by the fall of the stone ; and that
therefore his death was caused by that acci-
dent. The employers appealed : — Held, that
there was evidence to support the finding of
the learned County Court Judge. Stapleton
V. Dinnington Main Coal Co., 107 L. T. 247;
[1912] W.C. Rep. 376— C.A.
ii. Accident in Doing .ict Without Authority
or in Contravention of Rules.
See also Vol. IX. 2185.
Act of Workman Outside Sphere of his Em-
ployment.] — Where a workman is employed to
do a particular thing and to do it in a par-
ticular way and meets with an accident, he
may obtain compensation under the Work-
men's Compensation Act of 1906, if in the
course of doing that he never embarked on a
dangerous mode contrary to the regulations of
his employers. But where being employed at
area " A," which is limited to the sphere of
his operations, he goes into area " B " and
meets with an accident, the employer is not
liable, inasmuch as the workman has done
something which he was not authorised or
employed to do, and altogether outside the
sphere of his employment. McCabe v. North,
[1913] W.C. & I. Rep. 513: 109 L. T. 36'.)^
C.A.
Prohibited Act Outside Employment — Clean-
ing Machinery in Motion.] — A workman was
employed in a factory as underman at a
mangle. His duties were to carry the cloth
to and from the mangle and to assist the head-
man in putting it on to the rollers. It was
no part of his duty to be inside the rail fencing
the mangle or to interfere with the mangle
while working. Cleaning machinery while in
motion was prohibited, but on two days in
each week the machinery was stopped in the
early morning for cleaning, and it was the
duty of the workman to assist the headman to
clean the mangle at those times. While the
machinery was in motion, and in the absence
of the headman, the workman, without orders,
went inside the rail and attempted to clean a
part of the mangle, and was injured : — Held,
that the accident did not arise out of and in
the course of his employment. M' Diarmid v.
Ogilvie, [1913] S. C. 1103— Ct. of Sess.
Serious and 'Wilful Misconduct — Non-
compliance with Special Rules.] — The appli-
cant for compensation was a girl of fourteen,
who was engaged as a bottler in a soda-water
factory. While she was at work a bottle
exploded in the machine, and a piece of glass
struck and injured her right wrist, with the.
result that she was disabled for fourteen weeks.
At the time of the accident she was wearing a
glove on her left hand, but had no protection
on the right as required by the special rules
under the Factory and Workshop Acts for the
bottling of soda water, which were posted up.
The employer set up that the accident was due
to the applicant's serious and wilful misconduct
in not wearing protective gauntlets on both
arms as required by the rules, and as she had
been told to do by himself and the forewoman.
The County Court Judge found that gauntlets
were provided, that the applicant knew she had
to wear them, but that the forewoman, whose
duty it was to see that the applicant wore
them, had allowed her to do the work without
a gauntlet on her right hand to disregard the
rules, and only verbally told the applicant to
obey the rules to protect herself with the
employer. The County Court Judge therefore
held that the defence of serious and wilful mis-
conduct had not been established : — Held, that
the Court would not interfere with the decision
of the Countv Court Judge. Casey v. Hum-
phries, [1913"] W.C. & I. Rep. 485; 57 S. J.
716; 29 T. L. R. 647— C.A.
Doing 'Work in a 'Wrong Way.] — If an
accident occurs through a workman doing his
work in a wrong way it may be an accident
arising out of his employment within the
meaning of the Workmen's Compensation Act,
1906. The respondent was employed by the
appellants to attend to a rolling machine. It
was his duty to stand at the machine, but he
chose, in disobedience to the rules, to sit on
the guard, and in consequence his foot was
caught in the rollers and seriously injured.
The accident would not have happened if he
had remained standing : — Held, that the
accident arose out of his employment, and that
1929
WORKMEN'S COMPENSATION.
1930
he was entitled to compensation. Blair ct Co.
V. Chilton, 84 L. J. K.B. 1147; [1915] W.C. &
I. Rep. 283; 113 L. T. 514; 59 S. J. 474;
31 T. L. R. 437— H.L. (E.)
Decision of the Court of Appeal ([1914]
W.C. & I. Rep. 346) affirmed. /().
Disobedience — Distinction between Doing
Assigned Task in Wrong Way and Doing
Tasli not Assigned.] — A ^vorkman was em-
ployed to dig flints in a quarry where there
was a trench into which he was forbidden to
go. On the evidence his employment was to
dig in the quarry, but not in the trench. An
accident having caused his death while in the
trench, — Held, that his dependants were not
entitled to compensation. Harding v. Brynddu
Colliery Co. (80 L. J. K.B. 1052; [1911]
2 K.B. 747) and Weighill v. South Hetton Coal
Co. ([1911] 2 K.B. 757) considered. Parker
V. Hambrook, 107 L. T. 249; 56 S. J. 750;
[1912] W.C. Rep. 3(39— C. A.
Coal Miner not Working where Directed —
Disobedience to Orders — Orders Limiting
Method, not Sphere of Employment.] — A coal
miner was at work in a mine hewing coal at a
spot in a gallery known as the " horse level."
The under-manager, seeing there was danger
there from a threatened fall of stone, directed
the miner and others working with him to
move from the horse level a few yards into an
adjoining gallery running at right-angles into
the horse level, and get the coal there. While
the miner was working a stone fell upon him,
causing injuries resulting in permanent in-
capacity. It was proved that at the time of
the accident the miner was not working where
directed by the under-manager, but in the
horse level. On an application by the work-
man for compensation under the Workmen's
Compensation Act, 1906, — Held, that the
workman had been guilty of disobedience of
orders in not working where directed ; that
the orders went only as to the method in
which the work was to be done and not to
limit the sphere of the employment; and that,
inasmuch as the workman was about the work
he was employed to do, though in an improper
manner, the accident was one arising " in
the course of the employment " so as to entitle
him to compensation. Jackson v. Denton
Collieries Co., [1914] W.C. & I. Rep. 91;
110 L. T. 559— C. A.
Workman Resorting to Wrong Place for
Necessary Purpose — Serious and Wilful Mis-
conduct.]— A workman, who was employed to
attend to the boilers at a colliery, left his
work on one occasion for a necessary purpose ;
but instead of going to the water closets pro-
vided by his employers, he went into a space
under the table engine about four feet in
hsight. While there he accidentally plunged
his foot into a cistern in the floor of this
place, which received the escape water from
the engine, and his foot was thereby scalded :
— Held, that the accident did not arise out of
and in tlie course of hisemi)loyment. Thoinson
V. Fletnington Coal Co.. [1911] S. C. 823—
Ct. of Sess.
Per Lord Salvesen : The workman was
guilty of serious and wilful misconduct. 76.
The deceased workman was a labourer em-
ployed in the construction of a dock, and at
eleven o'clock at night the night gang, of
whom he was one, were ordered to go from
one part of the dock to another. They
marched in single file, and the deceased, who
was the last man in the file, intimated to the
next man in front that he wanted to stop to
ease nature. The others went on, and after a
while the next man called out to the deceased
asking him why he was not coming on.
Getting no answer, he went back and found
the deceased dead, his body having been
crushed between the upper and lower parts of
a hoist. The structure was so low that the
deceased must have stooped down to enter.
The scene of the accident was amply lighted.
The arbitrator found as a fact that the man
entered the hoist intentionally, and that it was
an unreasonable place for him to go to for the
purpose, and that therefore the accident did
not arise out of the employment : — Held, that,
there being evidence to support these findings,
the arbitrator was justified in finding that the
accident did not arise out of the employment,
the risk taken by the workman not being one
reasonably incident to the employment. Rose
V. Morrison £ Mason, Lim., 80 L. J. K.B.
1103; 105 L. T. 2— C.A.
Dangerous Method of Doing Work.] — On
September 20, 1913, a farm bailiff locked up
the outbuildings in his charge at 8 p.m., and
after laying the key of the poultry house on a
ledge near a sliding window in the cowshed,
locked up the cowshed and put the key to it
in his pocket. He was away for over three
hours, and on his return he went round the
premises according to his usual practice to see
that everything was all right. He also went
to the cowshed to get the key of the poultry
house, as he always kept the keys intrusted to
him in his house at night. He then found that
he had left the key of the cowshed in his house
near by. Thereupon he went to the sliding
window, opened it, and vaulted on to the
window sill some five feet from the ground.
Then, sitting on the sill, he reached inside for
tlie key, but in doing so overbalanced and fell,
and was killed. There were other occasions
on which he had vaulted on to the sill to get
keys from the ledge : — Held, that, although it
might be that the deceased had acted im-
prudently in vaulting on to the sill to get the
key, the accident was one which arose out of
and in the course of the man's employment,
and his dependants were entitled to recover
compensation from the employer tinder the
Workmen's Compensation Act, 1906. Pepper
V. Sayrr, 83 L. J. K.B. 1756; [1914] 3 K.B.
994; [1914] W.C. & I. Rep. 423; 111 L. T.
708: 58 S. J. 669; 30 T. L. R. 621— C.A.
The transgression of a prohil)ition which
limits the sphere of em]doyment is an act not
within the scope of a workman's employment,
and therefore he is not entitled to compensation
if an accident results ; but he may be if the
prol\il)ition only extends to conduct witliin the
sphere of his emplovment. Plumb v. Cobden
Flour Mills Co., 83 L. J. K.B. 107; [1914]
A.C. 62; [1914] W.C. & I. Rep. 48; 109 L. T.
759; 58 S. J. 184; 30 T. L. R. 174— H.L. (E.)
A workman who was employed to stack
1931
WOEKMEX'S COMPENSATION.
1932
sacks by hand, made use, with the object of
making the work easier, of the revolving shaft-
ing of some machinery which ran through the
room in which he was employed. This use
of the shafting was not known to his employers,
and would have been forbidden by them if
they had known of it. He was caught by the
shafting and severely injured while so engaged :
— Held, that the accident did not arise " out
of " his employment within the meaning of
section 1 of the Workmen's Compensation Act,
1906, and that he was not entitled to com-
pensation, lb.
Judgment of the Court of Appeal ([1913]
W.C. & I. Eep. 209) affirmed. lb.
Getting on Train in Motion.] — A workman
on his way home by a route across his em-
ployer's property which he was allowed to
take, tried to get into one of the trucks of a
train which was moving up an incline, which
was on his way home, and fell between the
trucks and was killed. There was a regulation
that no one except the persons in charge of
the train should ride on any moving train on
an incline without special leave : — Held, that
the accident did not arise " out of " or "in
the course of " his employment, and that his
dependants were not entitled to compensation.
Pope V. HilVs Plymouth Co., 105 L. T. 678:
[1912] W.C. Rep. 15— H.L. (E.)
A workman was employed as a shunter, and
it was part of his duty to walk in front of
any train with which he was working while
it moved about the employers' works. On
January 17, 1914, he worked with an engine
until 12.30 P.M., when it was time to stop
work. The engine had to return to its shed
three-quarters of a mile away, and started to
go there, pushing four waggons in front of it.
According to the workman's own story, he
jumped upon a front buffer of the leading
waggon, and then slipped, fell across the rails,
and was run over. In the result both his legs
had to be amputated. There was a notice in
the locomotive shed that the look-out man
must be in front of the waggons on pain of
instant dismissal, and the workman admitted
that he had no business to get on to a buffer,
and that any one seen riding on the buffer by
the manager would be dismissed. Upon an
application for compensation under the Work-
men's Compensation Act, 1906. — Held (Philli-
more, L.J., dissenting), that the accident did
not arise " out of " the employment, but was
due to an added risk to which the workman's
conduct had exposed him, and which was put
outside the sphere of his employment by a
genuine prohibition. Barnes v. Nunnery
Colliery Co. (81 L. J. K.B. 213; [1912] A.C.
44; [1912] W.C. Rep. 90) applied. Chilton \.
Blair <f- Co. ([1914] W.C. & I. Rep. 346) dis-
tinguished. Herbert v. Fox d Co., 84 L. J.
K.B. 670; [1915] 2 K.B. 81; [1915] W.C. &
I. Rep. 154; 112 L. T. 833; 59 S. J. 249— C.A.
Train Provided for Conveyance of Workmen
to Colliery — Riding on Footboard — Prohibited
Act.l — A collier on his way to the colliery in
a train provided for the men by the employers,
when near the station and before the train had
stopped, got out of the carriage on to the foot-
board so as to be ready to jump off as soon as
the train arrived at the stopping-place. He
fell off and lost both hands. The County Court
Judge held that he was riding in the train in
the course of his employment, and therefore,
although he was guilty of wilful misconduct,
the injury being permanent, he was entitled to
compensation : — Held (Buckley, L.J., dissent-
ing), that this decision must be affirmed. Per
Buckley, L.J. : The accident was caused by a
peril which did not arise out of the employ-
ment, but from an added peril to which the
workman by his own conduct exposed himself.
Watkins v. Guest, Keen d Nettlefolds,
106 L. T. 818; [1912] W.C. Rep. 151— C.A.
Workman in Course of Employment Walking
on Railway instead of on Road.] — A canal
overseer, having occasion, in the course of his
employment, to walk from a railway station
to his office on the banks of the canal, pro-
ceeded thither along the railway line, where,
at a narrow and dangerous spot, he was
knocked down and killed by a passing train.
There was no necessity for the deceased to go
along the railway line, for he could have pro-
ceeded to his office by the public road, the
distance being only slightly longer. He had
no right to walk on the railway line, and had
been warned by one of his superiors not to
do so : — Held, that, although the accident
arose " in the course of " the employment, it
did not arise " out of " the employment.
M'Laren v. Caledonian Railway, [1911] S. C.
1075— Ct. of Sess.
Dangerous Act Committed in Breach of
Rules — Railway Porter Jumping on to Foot-
board of Incoming Train.] — A railway porter,
whose duty it was to unload passengers'
luggage, was seriously and permanently
injured by falling on to the rails while
attempting to jump on to the footboard of an
incoming train in order to be ready to remove
the luggage as quickly as possible when the
train stopped. This act was in breach of the
company's rules, a copy of which the porter
had received but had not read, and he had
been reprimanded by the station master for
doing the same thing on previous occasions :
— Held, that the accident arose out and in
the course of his employment. M' William v.
Great North of Scotland Railway, [1914]
S. C. 453; [1914] W.C. & I. Rep. 135—
Ct. of Sess.
Message Clerk Injured while Boarding
Tramcar in Motion.] — A boy, employed as a
message clerk, was sent on an errand and
given money to pay for his tramway fare.
While attenipting unnecessarily to board a
tramway car in motion — which, as he knew,
was forbidden — he fell and was injured : —
Held, that the accident did not arise out of
the boy's employment. Symon v. Wemyss
Coal Co., [1912] S. C. 1239; [1912] W.C.
Rep. 336— Ct. of Sess.
Message Boy Injured while Using Hoist
against Orders.] — A message boy was em-
ployed by a fishmonger to deliver fish at the
kitchen of an infirmary situated on the third
storey of the building. The ordinary means
of access to the kitchen was a stair, but there
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WOEKMEN'S COMPENSATION.
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was also a hoist, with, liowever. a notice,
publicly displayed, aunouncing that it was to
be used only by servants of the institution
and worked only by those authorised by the
directors. The message boy, when on his way
to deliver fish at the infirmary, found the gate
of the hoist standing open, entered the hoist
and set it in motion, and his foot was jammed
between the floor of the hoist and the wall,
and injured. He knew he was doing wrong
in using the hoist, for on several previous
occasions, and in particular on the evening
before the accident, the porter had seen him
making his way to the hoist, and had rebuked
him and forbidden him to use it, and sent
him up the stair : — Held, that the accident did
not arise out of and in the course of the boy's
employment. M' Daid v. Steel, [l^ll] S. C.
859— Ct. of Sess.
Bookkeeper in Course of Employment Killed
in Crossing Railway Line at Station — Risk
Increased by Defiance of Rules.! — A book-
keeper and manager employed by a builder had
in the course of his employment to travel daily
a short distance by train to a station near
which his employer lived, and where his work
lay. On arrival, in order to save time, in-
stead of using the footbridge provided for
passengers, he used to cross the line on the
level. The rules of the company prohibited
this practice, but they were not enforced by
the station master, and it was adopted by
many other people, including the employer
himself. One day, in so crossing the line, the
workman was knocked down and killed by an
express train : — Held, that the accident did
not arise out of the employment. Pritcliard v.
Torkington, [1914] W.C. & I. Rep. 271;
111 L. T. 917 ; 58 S. J. 739— C. A.
Coal Mine — Explosion — Miner's Breach of
Order.] — A fireman discovered a dangerous
accumulation of gas in an " upset " in a
mine, and accordingly placed a fence across
the entrance with the words " No road up
here " chalked upon it. A miner, for the
purpose of getting a pick which had been left
in the upset and which he required for his
work, crossed the fence with a naked light
in his cap, entered the upset, and was killed
by an explosion of gas. The miner, who had
been in conversation with the fireman and
had watched him erecting the fence, had
been told not to enter the upset and under-
stood that there was a dangerous accumula-
tion of gas there, besides being well aware of
a special rule in force in the mine forbidding
miners to pass any fence : — Held, that the
accident arose out of and in the course of
the deceased's employment. Conway v.
Pumpherston Oil Co., [1911] S. C. 660— Ct.
of Sess.
Observations on disobedience to an order as
affecting the question whether an accident
arises " in the course of " the employment.
76.
Miner Endeavouring to Fire a Blast Con-
trary to Rule.^ — A miner was employed in a
pit in whicti the use of explosives was regu-
lated by certain rules which provided (inter
alia) — First, that every charge should be fired
by a competent person appointed in writing
for this duty; and secondly, that detonators
should be under the control of a person
specially appointed in writing, and should be
issued only to shot firers. The mine owners
had in writing duly appointed a shot firer,
and had also appointed him to have the control
of the detonators. In the absence of the shot
firer the miner, who had in the course of his
employment been preparing a shot for firing,
and who had in his possession a detonator,
which, however, he had not obtained from the
shot firer, determined to fire the shot himself,
and inserted the detonator in it for that pur-
pose. The insertion of detonators was usually
performed by the miners and not by the shot
firer. When the miner attempted to ignite the
fuse the shot exploded prematurely and killed
him, the cause of the explosion being an acci-
dental ignition of the fuse prior to the miner's
attempt to ignite it : — Held, that the accident
happened while the miner was arrogating to
himself a duty which he was neither engaged
nor entitled to perform, and accordingly that'
it did not arise out of and in the course of the
employment. Kerr v. Baird, [1911] S. C.
701— Ct. of Sess.
Miner Taking upon Himself Duty not
Intrusted to Him.] — A repairer was engaged
in making repairs on an air course in a mine.
and it was necessary for him to bring wood
to that place for the purpose. This could be
done by hauling the wood up the air course,
or by taking it up in hutches by a wheel brae,
and the repairer was directed to take it up
by the air course and not by the wheel brae.
The wheel brae was worked by gravity, an
empty hutch or a hutch loaded with wood
being pulled up by a descending hutch loaded
with coal. At the foot of the wheel brae was
posted a " hanger on " to whose sole charge
was entrusted the duty of attaching hutches
there and of giving the necessary signals to
the man at the top, who then set the hutches
on the wheel brae in motion. The hanger on
had attached an empty hutch and had given
the appropriate signal to the man at the top.
and then temporarily left the foot of the brae
to wheel out a full hutch. In his absence the
repairer loaded the empty hutch in an unskil-
ful manner with wood, and the man at the
top, having already received the necessary
signal, attached a full hutch and started the
wheel. The chain broke, and the repairer was
struck by the descending full hutch and
killed : — Held, that the repairer was killed
while arrogating to himself a duty which he
was neither engaged nor entitled to perform,
and accordingly that the accident did not arise
out of his employment. Kerr v. Baird (f Co.
([1911] S. C. 701) followed. Burns v.
Summerlee Iron Co., [1913] S. C. 227; [1913]
W.C. & I. Rep. 45— Ct. of Sess.
Miner Connecting Detonator Wire to Cable
— Unauthorised Act. — .\i\ injury io a work-
man by an accident caused by his arrogating
to himself duties which he was not called on to
perform, and had no right to perform, does not
arise out of his employment, if the efficient
cause of the accident is connected with the
arrogation of unauthorised duty by the work-
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WORKMEN'S COMPENSATION.
1936
man. But where the authorised " shot firer "
in a mine allowed a workman to connect the
detonator wire with the electric cable, which
he ought not to have allowed, and then himself
connected the cable with the battery, and
fired the shot prematurely, whereby the work-
man was injured, — Held, that the injury did
not arise out of illicit and unauthorised action
of the workman, and that he was entitled to
recover compensation as for an injury by
accident arising out of and in the course of his
employment. Smith v. Fife Coal Co., 83 L. J.
P.O. 359; [1914] A.C. 723; 111 L. T. 477;
58 S. J. 533 ; 30 T. L. R. 502— H.L. (Sc.)
Judgment of the Court of Session in
Scotland ([1913] S. C. 662; [1913] W.C. & I.
Rep. 313) reversed. lb.
Miner — Sphere of Employment — Serious and
Wilful Misconduct.] — The deceased workman
was a collier and was employed with another
man to drill a hole from above into a stall
below to let out the gas in the stall. The
entrance to the stall from below had been
blocked with boards to shew that it was
unsafe to enter. The drill had been driven
some time without reaching the stall, and the
deceased asked an overman if he might go
into the stall from below in order to judge from
the sound if the drill was being driven in the
right direction, and the overman forbade him
to do so. Notwithstanding this, the deceased
entered the stall and was suffocated by the
gas: — Held (Cozens - Hardy, M.R., and
Kennedy, L.J. ; Buckley, L.J., dissentiente),
that the accident arose out of and in the course
of the employment, and that the dependants
were entitled to compensation under the
Workmen's Compensation Act, 1906. Harding
V. Brynddu Colliery Co., 80 L. J. K.B. 1052;
[1911] 2 K.B. 747; 105 L. T. 55; 55 S. J.
599; 27 T. L. R. 500— C. A.
Collier Killed while Riding in Tub— Prohibi-
tion against, without Permission of Manager
or Underlooker.] — A collier met his death while
riding in a tub at the conclusion of his mining
work in the night shift. There was a rule at
the employers' colliery to the effect that no
person should ride any animal, tub, or waggon
except when permitted by the manager or
underlooker. There was no proof that the
deceased had ever been furnished with a copy
of that special rule, or that his attention had
ever been called thereto by any one in autho-
rity. Moreover, there was no evidence that
the deceased knew that he was doing wrong in
travelling as he did in the tub. The fireman
was the only person who could be regarded as
the official in charge of the mine at night. The
manager never went down the mine, and the
underlooker seldom went down — three or four
tir;ies a year. In the case of the night shifts
when the tubs were going up to a large extent
empty, the general practice of the workmen
leaving the night shift in order to return to
their homes, was to ride in the tubs in the
pnrticular part of the mine where the accident
to the deceased occurred, and to do so with
the acquiescence and tacit permission of the
fireman : — Held, that the effect of the
acquiescence and tacit permission given by the
fireman — who was the proper person to give
permission when permission was required — to
a collier who was not proved to have seen or
even known of the existence of the rule in
question, and who had acted in accordance
with that which was the universal custom in
the mine, was sufficient ; and that to suggest
that an individual collier was to ascertain the
authority of the fireman was altogether un-
reasonable, and therefore that it was a case
in which the employers must be taken
through their official in charge to have
" winked at " the non-observance of the rule;
and that therefore it was not such an unautho-
rised act on the part of the collier as to
disentitle his dependant to compensation.
Barnes v. Nminery Colliery Co. (81 L. J.
K.B. 213; [1912] A.C. 44) distinguished.
Richardson v. Dentoyi Colliery Co., [1913]
W.C. & I. Rep. 554; 109 L. T.'370— C.A.
A miner on leaving his work jumped on to
a hutch for the purpose of getting a ride to
the pit bottom, and was injured by reason of
his doing so. By a special rule in force in the
mine, of which the miner was aware, miners
were forbidden to ride on hutches : — Held.
that the injury was not caused by an accident
arising " out of " the employment. Kane v.
Merry ,£- Cunninghame, [1911] S. C. 533—
Ct. of Sess.
A boy of seventeen travelled in a tub drawn
by an endless rope along a level in a mine
and was fatally injured. The use of the tubs
was forbidden both by notice in the mine and
by a special rule of the colliery : — Held, that
the accident did not arise out of the deceased's
employment within the meaning of section 1,
sub-section 1 of the Workmen's Compensation
Act, 1906. Barnes v. Nunnery Colliery Co..
81 L. J. K.B. 213; [1912] A.C. 44; 105 L. T.
961; 56 S. J. 159; 28 T. L. R. 135; [1912:
W.C. Rep. 90— H.L. (E.)
iii. Industrial Diseases.
See also Vol. IX. 2179.
Process of Mining — Surface Labour.] — A
man employed at the pit-head of a colliery
as a surface labourer, — Held, not to be em-
ployed in the process of " mining " in the
sense in which that expression is used in
relation to industrial diseases in the Work-
men's Compensation Act, 1906. Scullion v.
Cadzow Coal Co., [1914] S. C. 36; [1914]
W.C. & I. Rep. 129— Ct. of Sess.
Disablement " the happening of the acci-
dent" — Claim by Workman who has Left
Employment Prior to Date of Disablement.] —
Section 8 of the Workmen's Compensation Act.
1906, which makes disablement by industrial
disease equivalent to injury by accident for
purposes of compensation, contains a proviso
that " the disablement . . . shall be treated
as the happening of the accident " : — Held,
that the proviso merely fixes the date of dis-
ablement as the date from which the com-
pensation is payable, and does not have the
effect, where the workman has left the
employment prior to the date of the disable-
ment, of excluding a claim for compensation
on the ground that the accident did not happen
in the course of the employment. x>-eary v.
1937
WORKMEN'S COMPENSATION.
1938
Russell, Lim., [1915] S. C. 672; [1915]
W.C. & I. Kep. 201— Ct. of Sess.
Eczematous Ulceration — Disease Contracted
in Service of One Employer — Recurrence on
Subsequent Employment by Another — Sus-
ceptibility to Disease — Liability of Successive
Employers.] — A workman contracted, in 1910,
an industrial disease while engaged in build-
ing work in the employment of certain em-
ployers. He left their service to obtain work
of another character. In January, 1913, he
engaged in the same sort of work which had
caused the disease, with Messrs. M., and the
disease returned. He left their employment
after working for a few days and received ,
compensation from them down to March,
1913, when he had recovered from the disease.
He then undertook other work, but in June,
1914, he went back to the same sort of work,
and got employment with S. & M., and the
disease reappeared, and he had to abandon,
the job. He claimed compensation from
Messrs. M. on account of the injury sustained
in January, 1913. The County Court Judge
found that, although he had recovered from
the attack of January, 1913. the susceptibilitj-
to the disease continued, and he awarded com-
pensation to be paid by Messrs. M. : — Held,
that prima facie the workman was entitled to
recover compensation from S. & M. as his last
employers, who ought to have been respon-
dents and might have set up, under section 8,
sub-section 1 Ct) (c) (ii), that other employers
were liable, but that it was not open to him
to make a claim and recover compensation
from Messrs. M., as it was not shewn that
his susceptibility to the disease was contracted
while in their eraplovment. Timpson v.
Mowlem S Co., 84 L. 'j. K.B. 1449; [1915]
W.C. & I. Eep. 219; 112 L. T. 885— C. A.
Lead Poisoning — Last Employer — Burden of
Proof — " At or immediately before the date of
the disablement."] — Where a claim for com-
pensation is made by the dependant of a
workman who has died from a disease men-
tioned in the Third Schedule to the Work-
men's Compensation Act, 1906, against an
employer by whom he has been employed
within twelve months previous to the date
of his death in a process, the nature of which
is such as to cause the disease, the applicant
proceeding under section 8, sub-section 1,
must prove that the disease was in fact caused
or aggravated by that employment, and it is
not enough merely to shew that the employ-
ment was one of a nature or kind in which
the disease might be caused. Dean v. Rubian
Arf Potterif, Lim., 83 L. J. K.B. 799; [1914]
2 K.B. 213; [1914] W.C. & I. Rep. 147;
110 L. T. 594 ; 58 S. J. 302 ; 30 T. L. R. 283
-C.A.
A workman who was already suffering from
advanced lead poisoning worked for 8J days
only for the respondents in March and April,
1913, in a lead process, leaving their employ-
ment on April 19. He died on May 15, 1913,
as a result of lead poisoning : — Held, that
under section 8, sub-section 1. the workman's
dependants, in order to recover compensation
from the respondents, must shew that the
death was due to lead poisoning arising out
of the employment with the respondents.
Held, also, that the burden of proof could not
be shifted on to the respondents under sub-
section 2 of section 8, as April 19, when the
workman was last employed by the respon-
dents, was not " at or immediately before "
his death on May 15. Ih.
A miner was emploved by A between
Januarv 28 and April 16, " 1913. From
April 16, 1913, till January 27, 1914, he was
out of employment owing to an injury to his
leg. Having recovered from that injury he
entered the employment of B on January 27,
1914. He worked in that employment on that
day and the following day, but did not return
to his work after January 28, 1914, owing
to trouble with his eyesight. He was after-
wards certified to be suffering from miner's
nystagmus, the disablement being found to
date from January 28, 1914. In an arbitration
in which the miner claimed compensation from
B, the Sheriff-Substitute held that the disease
was in part due to the nature of the workman's
employment before January 28, 1914, and in
part due to the nature of his employment
between January 28, 1913, and April 16, 1913,
and on January 27 and 28, 1914; and he
awarded compensation : — Held, that it was not
necessary for the workman, in order to succeed
in his application, to prove either — first, that
the disease was due to any particular thing
done to or suffered by him on the two days he
was in the employment of B ; or secondly, that
it was solely due to the nature of his employ-
ment during the period of twelve months prior
to his disablement to the exclusion of any
previous period; and award upheld. Dicta in
Dean v. Rubian Art Pottery (83 L. J. K.B.
799; [1914] 2 K.B. 213)' commented on.
M'Goican v. Merry if Cunningliame, Lim.
[1915] S. C. 34— Ct. of Sess.
Observations {per Lord Johnston and Lord
Skerrington) as to the meaning of the term
" employment " in section 8 of the Workmen's
Compensation Act, 1906. 76.
A miner obtained from a certifying surgeon
a certificate that he was disabled for work by
miner's nystagmus, which is one of the dis-
eases scheduled to the employment of mining.
For eight months prior to the date of disable-
ment he had been out of employment, having
been incapacitated, while working as a miner,
by an accident, which, however, was not
proved to have caused or accelerated the
nystagmus. The miner having claimed com-
pensation from the employer with whom he
was last employed — that is, eight months
before the disablement, — Held, that the
employment was not " at or immediately
before the date of disablement " in the sense
of sub-section 2 of section 8 of the Workmen's
Compensation Act, 1906, and consequently,
that the miner was not entitled to the benefit
of the statutory presmnption that his disease
was due to the nature of his employment, but
that the onus was upon him to prove that it
was so. M'Taggart v. Barr. [1915] S. C.
224: [1915] W.C. .<: L Rep. .3.35— Ct. of Sess.
"Due to the nature of any employment"
— Disease "contracted."] — ObservaMons (per
Lord Skerrington^ on the interpretation to
lie put on the words " due to the nature of any
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WORKMEN'S COMPENSATION.
1940
employment," and the word " contracted,"
used in section 8 of the Act with regard to
industrial diseases. 7b.
Liability of Recurrence after RecoYery —
Increased Susceptibility — Congenital Defect —
Onus of Proof. — A miner who had been in-
capacitated by an industrial disease, and had
been paid compensation, completely recovered,
and the compensation was stopped. He then
applied for an award as iDcing partially
incapacitated owing to increased susceptibility
from having once had the disease, and adduced
medical evidence to this effect. There was
unanimous medical evidence, however, that
such susceptibility was also due to a congenital
defect from which he suffered. The County
Court Judge held there was no incapacity, and
dismissed the application : — Held, that there
was no misdirection. Jones v. Guest, Keen
.f- Nettlefolds, Lim.. [1915] W.C. & I. Eep.
508; 60 S. J. 75— C. A.
Nystagmus — Liability to Recurrence — Loss
of Employment — "Sequelae" of Disease.] —
Where a workman who has suffered from
nystagmus — an industrial disease within sec-
tion 8 of the Workmen's Compensation Act,
1906 — has recovered from the disease, but is
proved to be under an increased susceptibility
to a recurrence of the same complaint, whereby
he loses employment, he is entitled to com-
pensation under the Act. Such susceptibility
is not a " sequela." but a result of the disease.
Dicta of the Court in Jones v. New Brynmally
Colliery Co. ([1912] W.C. Eep. 281) followed.
Garnant Anthracite Collieries v. Rees, 81 L. J.
K.B. 1189; [1912] 3 K.B. 372; 107 L. T. 279 ;
[1912] W.C. Eep. 396— C.A.
Where there was no evidence that miner's
nystagmus — an " industrial disease " within
the meaning of section 8 of the Workmen's
Compensation Act, 1906 — from which a
collier had been suffering, due to the nature
of the employment in which he had been
employed, but from which he had entirely
recovered, rendered him more liable to the
danger of a recurrence of that disease rather
than that he possessed a physical suscepti-
bility to the disease not common to all colliers,
it was held that there was not sufficient evi-
dence to support an award for compensation
under section 1 of the Act because his em-
ployers would not permit him to work for
them underground again. Jones v. Neir
Brynmally Colliery Co.. 106 L. T. 524: [1912]
W.C. Eep. 281— C.A.
Decision of Medical Referee Final — Form of
Certificate. — The order of a medical referee,
allowing an appeal against the refusal of a
certifying surgeon to give a certificate of dis-
ablement to a workman in respect of an
industrial disease and fixing the date of the
man's disablement, is a sufficient certificate
for the purpose of proceedings for compen-
sation under section 8 of the Workmen's
Compensation Act, 1906; and it is a final and
conclusive finding for the purposes of these
proceedings that the workman has suffered
from the industrial disease, and has been
thereby disabled from the date of disablement
to the date of the hearing before the certifying
surgeon from earning full wages at the work
at which he was employed. Chuter v. Ford J:
Sons, Lim., 84 L. J. K.B. 703; [1915] 2 K.B.
113; [1915] W.C. & I. Eep. 104; 112 L. T.
881; 31 T. L. E. 187— C.A.
Act Incorporated in Scheme.] — The rules of
a contracting-out scheme which had been duly
certified by the Eegistrar of Friendly Societies
provided that it was intended to be in sub-
stitution for the Employers' Liability Act,
1880, the Workmen's Compensation Act, 1906,
and common law liability, and was intended to
provide a fund for the payment of compensation
to anj' member of the scheme in respect of
personal injury caused by accident arising out
of or in the course of such member's employ-
ment : — Held, that the word " accident " must
be read in the sense in which it is used in
the Workmen's Compensation Act, 1906, and
as therefore including disablement owing to
industrial disease, and that the sections of the
Act of 1906 dealing with the recovery of com-
pensation for industrial disease must be read
into the scheme. Horn v. Admiralty Com-
missioners, 80 L. J. K.B. 278; [1911]
1 K.B. 24, distinguished. Leaf v. Furze,
83 L. J. K.B. 1822; [1914] 3 K.B. 1068;
[1914] W.C. & I. Eep. 601: 111 L. T. 1100
— D.
III. PEESONS ENTITLED TO CLAIM
COMPENSATION.
a. Workmen.
i. Generally.
See also Vol. IX. 2145.
Sea Voyage to Place of Work — Loss of Ship
— Death of Servant — Compensation — Member
of Ship's Crew.] — The Workmen's Compensa-
tion Act, 1906, has no application in the case
of an accident happening on a British ship on
the high seas unless the accident happens to
a member of the crew within the provisions
of section 7 of the statute. Schwartz v. India-
ruhher, Gutta-percha, and Telegraph Works,
Lim., 81 L. J. K.B. 780; [1912] 2 K.B. 299;
106 L. T. 706; 28 T. L. E. 331; [1912] W.C.
Eep. 190— C.A.
An electrical engineer was engaged by an
English company to do certain electrical work
for them in Teneriffe, and whilst on his way
in a British ship to perform his duties — his
fare bemg paid by his employers, as well as
his wages during the voyage — the ship in
which he travelled was lost in the Bay of
Biscay, and he was presumed to have been
drowned : — Held, that his widow was not en-
titled to recover compensation under section 1
of the Workmen's Compensation Act, 1906,
inasmuch as the Act only applies to cases of
employment within the ambit of the United
Kingdom, unless the person injured is a
member of the crew of a British ship within
the meaning of section 7 of that Act, whereas
the deceased man did not come within the
provisions of that section. lb.
Employment of a Casual Nature — Jobbing
Gardener.] — A man who described himself as
1941
WOKKMEN'S COMPENSATION,
1942
a jobbing gardener was employed at a daily
wage in lopping trees and doing other work
in a private garden for a period which had
lasted five weeks, when he was incapacitated
by accident : — Held, in a claim for compensa-
tion, that he was not a " workman " within
the definition of the Act, as his employment
was of a casual nature. Knight v. Bucknill,
[1913] W.C. & I. Rep. 175; 57 S. J. 245—
C.A.
Meters and Weighers Licensed by Conser-
vancy Board under Statutory Powers — Meter
Weighing for Steamship Company.] — A con-
servancy board under statutory provisions
appointed and licensed a body of meters and
weighers for their port. The board derived no
pecuniary profit from their services. Only
licensed meters and weighers could be employed
in the port. They could be dismissed by the
board. They were sent in rotation to persons
desiring their services. Such persons paid for
their services according to a fixed scale through
the meters ofBce of the board, and not directly.
Such persons entirely controlled the actual
work done, and could, if dissatisfied with
a meter, dismiss him and ask for another
licensed meter, but otherwise they had no
power of selection and dismissal. A steam-
ship company required a meter to weigh
cotton cake on their steamer in the port.
Weighing of cotton cake in the port was not
compulsory, but the company wished it done
there. In the course of his employment the
meter sent by the board met with an accident.
He claimed compensation from the company :
— Held, that there was evidence to justify the
County Court Judge in finding that the meter
was a " workman " and that the company were
his " employers " within section 13 of the
Workmen's Compensation Act, 1906, and
therefore liable to pay him compensation.
Wilmerson v. Lynn and Hamburg Steamship
Co., 82 L. J. K.B. 1064; [1913] 3 K.B. 931;
[1913] W.C. & I. Rep. 633; 109 L. T. 53;
57 S. J. 700; 29 T. L. R. 652— C.A.
" Member of employer's family dwelling in
his house" — Son Paying Board — Accident
Occurring while Temporarily Absent on a JobJ
— A glazier, aged twenty-six, was employed
as an ordinary workman by, and lived with,
his father in Glasgow, paying board and lodg-
ing. While engaged on a job for his father
in Oban, where he lived in lodgings, he was
accidentally injured. The son claimed com-
pensation from his father, maintaining that
being forisfamiliated he was not " a member
of the employer's family," within section 13
of the Workmen's Compensation Act, 1906,
and further, that, being absent at Oban, he
was not " dwelling in his house " within that
section : — Held, that at the time of the acci-
dent he was " a member of the employer's
family dwelling in his liouse." and accordingly
was not a " workman " entitled to compensa-
tion. M'DnugaU v. M'Dougall, [1911] S. C.
426— Ct. of Sess.
Inmate of Charitable Institution Receiving
Monthly Payments in Course of Industrial
Training.] — A blind pauj)er was injured winic
working in the industrial department of a
charitable institution. The department, which
supplied industrial training to blind persons,
was not self-supporting, but depended partly
on charitable aid. On account of the pauper
the institution received 14L 85. per annum
from his parish, and 20L per annum from a
charitable fund, and, on the other hand,
supplied him with his board, lodging, and
clothing, and paid him 5s. a month : — Held,
first, that the pauper was a " workman "
within the Workmen's Compensation Act; and
secondly, that as the monthly payments to
such blind persons were supposed, in the in-
stitution, to represent 20 per cent, of their
average earnings, the compensation fell to be
calculated on that basis. MacGiUivTa7j v.
Northern Counties Blind Institute, [1911]
S. C. 897— Ct. of Sess.
Captain of Barge.] — The owner of a sailing
barge having arranged for the freight payable
for a cargo on a certain voyage, appointed a
man to act as captain of the vessel, giving him
instructions where he was to go and what he
was to do. The captain received a share of
the net freight. During the voyage the captain
was injured by accident : — Held, that the
relation of master and servant existed between
the owner of the barge and the captain, the
latter being a " workman " who had entered
into a " contract of service " with an employer
within the meaning of section 13 of the
Workmen's Compensation Act, 1906; and that
therefore he was entitled to claim compensa-
tion under that Act. Boon v. Quance
(102 L. T. 443) distinguished. Smith v.
Horlock, [1913] W.C. & I. Rep. 441 ; 109 L. T.
196— C.A.
Employee of Board of Guardians Appointed
Subject to Approval of Local Government
Board.] — A workman employed by a board of
guardians who have the right of directing him
in his work and of dismissing him at their
own pleasure, and who are liable to pay his
wages, is a servant of such board within the
Workmen's Compensation Act, 1906, although
the appointment of such workman by the board
of guardians, and the amount of his wages,
require the approval of the Local Government
Board. Doran v. Waterford Union Guardians
(37 Ir. L. T. Rep. 158) approved. Murphy v.
Enniscorthy Union Guardians ([1908] 2 Ir. E.
609) and National Insurance Act, 1911, In re;
Officers of South Dublin Union ([1913] 1 Ir. R.
244) distinguished. Finlay v. Tullamore
Union, [1914] 2 Ir. R. 233— C.A.
Harvesting — Payment in Beer and Supper —
No Money Payment.] — A quarryman after his
day's work was done assisted a farmer in
carrying hay, and while so occupied fell from
a cart and injured his spine. He was in the
habit of rendering such services to the farmer
for beer, or beer and supper, but he received
no money payments : — Held, that there was
no contract of service within section 13 of the
Workmen's Compensation Act. 1906, and that
if there was such a contract, it was illegal
under the Truck Acts. 1831 and 1887. Kemp
V. Lewis. 83 L. J. K.B. 1535: [1914] 3 K.B.
543; [1914] W.C. & I. Rep. 612; 111 L. T.
699— C.A.
1943
WORKMEN'S COMPENSATION.
1944
Hop Picker — Domestic Servant on Holiday.]
— The applicant, who was a girl of seventeen
years of age and was in domestic service,
arranged to go hop picking with her aunt
during her fortnight's summer holiday. The
aunt kept house for the applicant's father,
and was employed by the respondent to pick
hops for him at Is. for six bushels. Besides
the applicant she took with her the applicant's
si.\ brothers and sisters, who were of ages
varying from twelve months to fifteen years.
They were accompanied by a neighbour and
her family, and the aunt and neighbour shared
a crib which was divided into two parts. The
crib stood in their two names, and each was
paid for the hops collected into her share of
the crib. On the last day of her fortnight's
holiday the applicant met with an accident
while hop picking, and she claimed to recover
compensation under the Workmen's Compen-
sation Act, 1906, from the respondent. Three
matters were mainly relied on as proving a
contract of service between her and the respon-
dent. First, she gave evidence that at an
interview between her aunt and the respon-
dent, at which she was present, she heard
the respondent tell her aunt that he would
engage her (the applicant). In cross-examin-
ation she admitted, however, that she did not
remember exactly what happened then, and
it appeared that the respondent did not come
to an agreement with the aunt until a subse-
quent date. Secondly, on reaching the hop
garden, the applicant and her aunt and a sister
fifteen years of age went to the respondent's
farm to get bedclothes for the family, and
their names were taken as the persons respon-
sible for what each received. Thirdly, some
days after the hop picking commenced the
three of them saw the respondent with regard
to hiring money. The farmer gave the aunt
Is. for herself, and she then asked for 6d. for
each of the two girls, and, on being given
two sixpences, handed one of them to the
applicant, who, however, told her aunt to keep
it towards her food. . It appeared from the
evidence that it was usual to give a hop picker
Is. hiring money, and that, when she brought
with her children who had come to an age
when their work would be really useful, she
also received 6d. for each of them : — Held,
that there was no evidence to support a finding
that the relationship of servant and employer
existed between the applicant and the respon-
dent. Richards v. Pitt, 84 L. J. K.B. 1417;
[1915] W.C. & I. Eep. 417; 113 L. T. 618
— C.A.
Employment " for the purposes of the em-
ployer's trade or business" — Farmer — Man
Specially Employed to Cut Hedge.] — The
garden of a labourer was separated from the
adjoining land of a farmer by a hedge on the
land of the farmer, and the labourer com-
plained of the height of the hedge. The farmer
agreed with the labourer that the latter should
cut the hedge and he would pay him 10s. for
doing it, the farmer to have the poles from
the hedge to use in his hopfield. While cutting
the hedge the labourer met with an accident :
— Held, that the employment, though of a
casual nature, was for the purpose of the
farmer's trade or business, and the labourer
was a " workman " within the Workmen's
Compensation Act. 1906. Tombs v. Bomford.
106 L. T. 823; [1912] W.C. Eep. 229— C.A.
" Person whose employment is of a casual
nature" — Regular Seasonal Employment.] — A
labourer who had been regularly employed
every year for many years to work in the
woods on a gentleman's estate during the
season for this work, which lasted some two
months, for the season, at a weekly wage, was
injured by accident in this employment : —
Held, that the employment was not of a casual
nature, and that the man was a " workman "
within section 13 of the Workmen's Compen-
sation Act, 1906, and was entitled to com-
pensation under the Act. Smith v. Buxton.
84 L. J. K.B. 697; [1915] W.C. & I. Eep.
126; 112 L. T. 893— C.A.
Workman Engaged by Different Masters in
a Common Employment — Interchange of Work
with Knowledge and Permission of Employers
— Custom of Port — Unloading Collier.] — Four
men were engaged in the unloading of a collier.
Three of these, a tipper and two winchmen,
were employed by the shipowner ; the fourth, a
barrow man, was employed by the coal mer-
chant who chartered the ship. The tipper got
tired of his work and asked the barrow man to
exchange work with him, which was done, the
barrow man tipping the tubs of coal as they
were hoisted from the hold into the barrow and
the tipper wheeling off the barrow when full.
While the barrow man was thus occupied in
tipping he was accidentally knocked into the
hold by a tub and was killed. The three sur-
viving workmen proved that it was the habit
of men so employed at the port to interchange
work in this manner when unloading colliers,
and there was no evidence to the contrary, and
the employers did not deny their knowledge
of the practice or allege that they prohibited it.
There was no other evidence of any custom to
interchange work at the port when unloading
coal : — Held, that no such custom was proved;
but that as the four men were at the time of
the accident engaged in the common employ-
ment of getting the coal from the ship to the
premises of the coal merchant the interchange
of work was in the nature of a deviation from
the workmen's special employment for the
benefit and with the sanction of the employer :
that the accident arose out of and in the course
of the deceased's employment, and that his
dependants were entitled to compensation.
Henneberrij v. Doyle. [1912] 2 Ir. E. 529;
[1912] W.C. Eep. 14— C.A.
Independent Contractor — Agreement by Em-
ployer to Give Workman Information Enabling
Him to Supplement Earnings — Services of
Workman not Temporarily Lent.] — A work-
man was engaged by the lessee of a theatre to
do work which occupied him part of the morn-
ing and the whole of each evening. For this
he was paid a weekly wage, and given early
information as to the movements of theatrical
performers, so as to enable him to contract
with them for the moving of their luggage to
and from the railway station at the beginning
and end of each week. While removing
luggage in the performance of one of these
contracts he met with injury by accident : —
19-t5
WOPJOIEX'S COMPENSATION.
194G
Held, that he was not under the control of
the lessee at the time, or temporarily lent to
another person, but an independent contractor,
and therefore that the accident did not arise
out of or in the course of his employment.
HuscToH V. Bennett, [1914] W.C. & I. Rep. 9 :
110 L. T. 494 ; 58 S. J. 284— C. A.
Payment for Some Time — Evidence of Agree-
ment to Pay — Contention that Workman not
in Employment — Estoppel.] — E. & Co. were
the owners of barges each of which had a cap-
tain and mate. E. & Co. appointed the
captain, and he, without any interference from
E. & Co., appointed the mate, paying him a
certain proportion of the amount he received
from E. & Co. E. & Co. insured against
liability under the Workmen's Compensation
Act in respect of all the captains and also in
respect of the mates. One of the mates met
with an accident on a barge on February 7,
1910. E. & Co. paid him 6s. a week for more
than six months, and it was admitted that this
money came from the insurance company. A
correspondence then took place between E. &
Co. and a solicitor acting for the mate, which
resulted in his being paid 8s. a week until
May, 1911, it being admitted the money came
from the insurance company. The County
Court Judge held there was evidence of an
agreement by E. & Co. to pay the applicant
8s. a week during incapacity, and that they
were estopped from contending that at the
time of the accident the mate was not in their
employment : — Held, that the circumstances
did not amount to an estoppel ; that there had
been no agreement by E. & Co. within sec-
tion 1, sub-section 3, to treat the mate as a
servant within the Act, and any such agree-
ment was of no effect as the Act only applied
to workmen who came within the definition in
section 13. Standing v. Eastwood <(■ Co..
106 L. T. 477 ; [1912] W.C. Rep. 200— C.A.
Incapacity Alleged to be Due to Similar
Injury in Previous Employment — Onus of
Proof.] — In December, 1908, a workman in
the course of his employment felt a severe pain
in his right knee on raising from a kneeling
position, and on examination it was found that
the cartilage was torn. Three years before,
while in another employment, he had sus-
tained a wrench to the same knee, which had
incapacitated iiim for some weeks, after which
he was able to resume his ordinary work. It
was not clear on the evidence whether the
later injury was connected with the former, or,
if so, to what extent it was so connected. In
answer to a claim by the workman for com-
pensation against the firm in whose employ-
ment he was in December, 1908, the employers
maintained that the incapacity was not due to
an accident occurring in the course of his
employment with them, but to the original
injury : — Held, that as the injury in Decem-
ber, 1908, was apparently sustained in the
employment of his then employers, the onus
was on them to shew that it was really due to
the former accident; that they had failed to
discharge this onus ; and that they were
accordingly liable to pav compensation. Bor-
land V. Watson, Goic ,('Co.. [1912] S. C. 15—
Ct. of Sess.
Effect of Imprisonment of Workman — Con-
tinuance of Incapacity Caused by Accident.] —
A workman who had met with an accident in
the course of his employment, and was in
receipt of 11. a week compensation from his
employers, was convicted of stealing and sen-
tenced to eighteen months' imprisonment with
hard labour. The employers stopped payment.
The workman claimed compensation. He was
still suffering from partial incapacity for work
as the result of his accident : — Held, that, as
the incapacity caused by the accident still con-
tinued, the workman, notwithstanding his
imprisonment, was entitled to compensation
under section 1, sub-section 1 of the Work-
men's Compensation Act, 1906. McNally v.
Furness, Withy d- Co., 82 L. J. K.B. 1310;
[1913] 3 K.B. 605; [1913] W.C. & I. Rep.
717; 109 L. T. 270; 29 T. L. R. 678— C.A.
Stoker in Mercantile Marine — Member of
Royal Naval Reserve.] — Per Cozens-Hardy,
M.R., and Fletcher Moulton, L.J. : The effect
of section 9 of the Workmen's Compensation
Act, 1906, is to exempt the Crown from
liability under the Act towards persons in the
naval or military service of the Crown, and
not in any way to affect the position of other
persons. Per Farwell, L.J. : The effect of
section 9 is to exclude the Crown and persons
in the naval or military service of the Crowu
from the operation of the Act, and section 13
must accordingly be read as if the words
" other than the Crown " were written into
the definition of " employer," and the words
" other than persons in the naval and military
service of the Crown " were written into
the definition of '" workman." Brandy v.
''Raphael" Steamship, 80 L. J. K.B. 217;
[1911] 1 K.B. 376; 103 L. T. 746; 11 Asp.
M.C. 541; 27 T. L. R. 127— C.A.
"Remuneration" — Amount of Earnings —
Additions to Wages — Bonus — Profits on Sales
of Spirits. ~ — The word "remuneration'' in
section 13 of the Workmen's Compensation
Act, 1906, is used in the same sense as
" earnings " in the Act. Dothie v. Mac-
Andrew d Co. {11 L. J. K.B. 388; [1908]
1 K.B. 803) followed. Skailes v. Blue Anchor
Line, 80 L. J. K.B. 442; [1911] 1 K.B. 360;
103 L. T. 741; 55 S. J. 107: 27 T. L. R. 119
—C.A.
A steward on a ship received 232/. per
annum for wages, board and lodging, and
other items, also a certain bonus from his
employers if everything was satisfactory dur-
; ing the voyage, and also he was allowed to
i retain profits made by retailing glasses of
whisky. 7/e/d (Fletcher Moulton. L. J., differ-
I ing), that these items should be taken into
account in arriving at the remuneration of the
steward, so that if they brought it beyond 250/.
a year he would not be a " workman " within
the Act, and the claim of his widow for com-
pensation on account of his death would fail.
76.
Per Fletcher Moulton, L.J. : The question
of " remuneration " must be determined by
the contract of service, and not by an ex post
facto examination of what may have happened
under it, and therefore the contingent advan-
tage from the bonus, not being mentioned in
1947
WORKMEN'S COMPENSATION.
1948
the contract and being a voluntary payment,
should not be taken into account. As to the
profits by retailing glasses of whisky, there
was no evidence of the amount derived from
this source which would enable the arbitrator
to take such profit into account. 7b.
"Average weekly earnings" — Basis of
Computation — Deductions for Assistance.] — A
dairyman, who had to " take charge of and
manage '" for his employer a herd of forty-five
cows and heifers " according to instructions "
from his employer, and to perform duties con-
nected therewith "' as and when required " by
his employer, receiving therefor 45s. a week
with a house and some extras, was assisted in
his work by his two sisters, who lived with
him, and whom he paid for their assistance,
though not under any agreement with them.
There was no agreement between him and his
employer that he should get or pay for assist-
ance. Upon a claim for compensation for
accident in the employment, — Held, that the
man was a " workman "" within section 13 of
the Workmen's Compensation Act, 1906, and
that, in estimating his " average weekly earn-
ings " under Schedule I. clause 2 of the Act.
the value of the sisters" assistance could not
be deducted. Roper v. Freke, 84 L. J. K.B.
1351; [1915] 3 K.B. 222; [1915] W.C. &
I. Rep. 377; 113 L. T. 635; 59 S. J. 596;
31 T. L. R. 507— C.A.
Exceeding 250/. a Year.] — The captain of
a ship was employed under an agreement
dated March 13, 1914, to take command at the
rate of wages of 9,01. per month, and it was
provided in the agreement that if he kept the
ship free of all damage and claims he was to
receive a gratuity of 48/. per annum, but that
if he failed to do so he was to forfeit the
gratuity and have his remuneration reduced
to 16/. per month. The ship was lost with all
hands on April 12. 1914, and the widow applied
on behalf of herself and the other dependants
of the deceased for compensation under the
Workmen's Compensation Act, 1906. In the
course of the proceedings the value of the
deceased's board and accommodation on his
ship was assessed at 45/. 10s. per annum,
and no question arose as to this : — Held, that
the captain's remuneration did not exceed 250/.
a year, and that he was therefore a " work-
man " within section 13 of the Act, and that
his dependants were entitled to compensation.
Williams v. " Maritime " (Owners). 84 L. J.
K.B. 663; [1915] 2 K.B. 137; [1915] W.C. &
I. Rep. 97; 112 L. T. 907; 31 T. L. R. 218
—C.A.
In determining the remuneration, regard
must be had only to the existing agreement
and what had happened under it, and seeing
that the ship had been lost she had not been
kept free of damage, and the deceased's salary
must be taken as 16/. per month, which, with
45/. 10s. for board and lodging, was less than
250/. a year. So held by Lord Cozens-Hardy,
M.R., and Swinfen Eady. L.J. (Phillimore,
L.J., dubitante). Per Phillimore, L.J. : The
better course is to estimate the salary having
regard to the various possible contingencies ;
but if this is done the remuneration is still
less than 250/. a year. lb.
Claim for Death of Seaman — Unregistered
Ship — Ship Originally Registered.] — The regis-
tration of a ship of thirty-five tons was closed
and she sailed as an unregistered ship from
Lowestoft for Norway, and on the voyage was
lost at sea. Upon claim for compensation by
the dependant of a deceased seaman lost with
the ship, — Held, that the ship was not a
British ship within section 2 of the Merchant
Shipping Act, 1894. and that no claim could
be made under the Workmen's Compensation
Act, 1906, s. 7, sub-s. 1. Mortimer v. Wisker,
83 L. J. K.B. 1245; [1914] 3 K.B. 699;
[1914] W.C. & I. Rep. 530; 111 L. T. 732;
30 T. L. R. 592— C.A.
Payments Ended by Arbitrator on Ground of
RecoYery — Supervening Incapacity — New
Application for Compensation — Competency.] —
The compensation payable under a recorded
agreement to a workman by his employers in
respect of injuries received in an accident was
ended by an arbitrator on an application for
review brought under section 16 of Schedule I.
of the Workmen's Compensation Act, 1906, on
the ground that the workman had recovered.
Subsequently the workman instituted arbitra-
tion proceedings under section 1, sub-section 3
of the Act, for an award of compensation,
averring that incapacity had again supervened :
— Held, that the new application was incom-
petent and that the workman could not again
obtain compensation in respect of the accident,
the payments having been ended by the
arbitrator. Cadenhead. v. Ailsa Shipbuilding
Co., [1910] S. C. 1129— Ct. of Sess.
ii. Crew of Fishing Vessels.
Fisherman Partly Remunerated by Share in
Earnings."' — A fisherman was employed as the
member of the crew of a steam trawler upon
a contract of service with the master, repre-
senting the owner, under which he received
wages at the rate of 30s. a week and a com-
mission of 2d. per 1/. on the gross value of the
fish landed under deduction of the cost of
carriage. During the only week of his employ-
ment his commission amounted to 7s. : — Held
(Lord Dundas dissenting), that he was not
remunerated by a share in the profits or the
gross earnings of the working of the vessel,
and accordingly was not excluded from claim-
ing compensation under the Workmen's Com-
pensation Act, 1906. Colquhoun v. Woolfe.
[1912] S. C. 1190; [1912] W.C. Rep. 343—
Ct. of Sess.
A man employed on a fishing vessel who
receives, in addition to his food and some other
small perquisites, wages at a fixed rate per
week, and also poundage on the net profits of
the voyage, is a member of the crew of a
fishing vessel remunerated by a share in the
profits of the working of such vessel within
section 7, sub-section 2 of the Workmen's
Compensation Act. 1906, and therefore the Act
does not apply to him. Costello v. Kelsall.
82 L. J. K.B. 873; [1913] A.C. 407; [1913]
W\C. & I. Rep. 410; 108 L. T. 929; 57 S. J.
609: 29 T. L. R. 595— H.L. (E.)
Share of " stocker " — Loss of Vessel — No
Stocker on Board — Contract of Service — Right
1949
WORKMEN'S COMPENSATION.
1950
to Stocker by Custom of Port.] — A fishing
vessel was lost with all hands a day after
leaving port. Compensation was claimed for
tlie death of a seaman on board her. In addi-
tion to his wages the deceased was entitled,
by the custom of the port, to a share of
" stocker." There was no stocker on board
the vessel when she went down. She was
proceeding to fishing grounds, where on former
trips a considerable amount of stocker had
been taken : — Held, that it was a term of the
contract of service that the deceased should be
remunerated by a share of stocker, and that
he was therefore " remunerated by shares in
the profits or the gross earnings " within sec-
tion 7, sub-section 2 of the Workmen's Com-
pensation Act, 1906, so that his dependants
were not entitled to compensation under the
Act. Stephenson v. RossaJl Steam Fishing
Co., 84 L. J. K.B. 677 ; [1915] W.C. & I. Eep.
121 ; 112 L. T. 891— C. A.
Running Agreement — Failure to Shew
Correct Remuneration — Right to Prove Correct
Amount.] — The failure to insert in a running
agreement the correct remuneration of the crew
as required by section 400 of the Merchant
Shipping Act, 1894, does not preclude the
owners of the fishing boat from proving the
actual remuneration on an application by a
member of the crew for compensation under
the Workmen's Compensation Act, 1906.
Burman v. "Zodiac" Steam Fishing Co.;
Williams v. " Duncan " (Owners) ; McCord v.
" City of Liverpool " (Owners), 83 L. J. K.B.
1683; [1914] 3 K.B. 1039; [1914] W.C. &
I. Rep. 520; 112 L. T. 58; 30 T. L. R. 651
— C.A.
B. was employed as a cook on board a steam
trawler and met with an accident arising out
of and in the course of his employment. He
was taken on as cook at wages of 24s. a week,
but at the time of his engagement the skipper
offered him a share of " stocker " and " liver
money," if he worked on deck with the deck
hands. " Stocker " is money received from
the sale of tails of a fish called the monk, roes,
shell fish, and other things taken in the ship's
trawl. Liver money is the proceeds of the
livers cleaned from fish caught in the trawl.
The proceeds were substantial : — Held, that
B. received the stocker and liver money as
part of his remuneration, and therefore that
he was remunerated by a share in the earnings
of the working of the ship within the meaning
of section 7, sub-section 2 of the Act, with
the result that he was excluded from the Act
and not entitled to compensation. In two
other cases the applicants were employed as
deck hands on steam trawlers and met with
accidents arising out of and in the course of
their employment. The applicants in each
case occasionally received stocker and liver
money in addition to their ordinary wages.
Tiie ships were, however, sole-catching vessels,
and on such vessels the stocker and liver money
were very small in amount. There was evi-
dence that the wages of the crew were increased
because of this, and that the crew were free
either to keep the livers or throw them over-
board. On a voyage of about ten days one
of the applicants received 3.9. as his share of
liver money. The applicant in the other case
on several voyages received no stocker or liver
[ money. On another voyage he received 6d.
for stocker, and on another voyage 4.s. for liver
I money : — Held, that there was evidence on
which the County Court Judge could find that
I the stocker and liver money were treated as
matters of no importance and not as part of
the earnings of the working of the vessel, and
' that there was no agreement by which the
applicants were to be remunerated by a share
i of the earnings so as to disentitle them to
compensation under the Act. 76.
b. Dependants.
See also Vol. IX. 2154.
Wife Separated from her Husband.] — The
respondent was married to a collier in 1881.
She left him in 1888 and lived with her
parents, with whom her children remained
until they grew up. She kept herself in
various capacities and never received any-
thing for her support from her husband, who
in 1910 met with a fatal accident : — Held.
that she was neither wholly nor partially
dependent upon her husband and was not
entitled to compensation. New Monckton
Collieries v. Keeling, 80 L. J. K.B. 1205;
[1911] A.C. 648 : 105 L. T. 337 ; 55 S. J. 687 :
27 T. L. R. ool— H.L. (E.)
Wife and Infant Children Deserted by
Husband.] — In 1909 the ship Bessie went
down with all hands, and in 1911 the respon-
dent, who was the widow of a mate on the
ship, took proceedings against the owners of
the ship to recover compensation for her two
infant children as dependants of their father.
The mate had deserted his wife in 1903, and
j since then she had supported the children
I without assistance from him. The County
I Court Judge held that there was a legal pre-
I sumption that the children were dependants
I of the father, and awarded them compensa-
tion. There was no evidence at the hearing
that they were in fact dependants, but the
decision of the House of Lords in New
Monckton Collieries, Lim. v. Keeling (80 L. J.
i K.B. 1205; [1911] A.C. 648) had not then
j been pronounced : — Held, applying the deci-
sion in that case, that the dependency was a
question of fact, and that there was no legal
presumption of dependency in the case of
infant children. And held (Fletcher Moulton.
I L.J., dissenting), that in the absence of evi-
I dence to support a finding that the children
I were " wholly or in part dependent upon the
I earnings of the workman at the time of his
death," the appeal against the award must be
; allowed. Per Fletcher Moulton, L.J. : The
• proper course was to remit the case to the
County Court Judge to be re-heard. Lee v.
"Bessie" (Owners), 81 L. J. K.B. 114;
[1912] 1 K.B. 83; 105 L. T. 659: 12 Asp.
M.C. 89; [1912] W.C. Rep. 57— C.A.
Decree for Aliment — Evidence.] — The ques-
tion whether the members of the family of a
deceased workman are dependent upon him,
so as to be entitled to compensation under the
Workmen's Compensation Act, 1906, is pri-
marily one of fact, and the point for the
1951
WOPiKMEX'S COMPENSATION.
1952
consideration of the arbitrator is whether the
right of support possessed by the applicants
is of any actual or practical value. Therefore,
where a workman had deserted his wife and
infant children, and the wife had obtained a
decree for aliment in the Sheriff Court, and
had arrested his wages under the decree, and
he had subsequently removed in order to avoid
further proceedings, and his wife had been
unable to trace him, though she had endea-
voured to do so, — HeW, that there was evidence
that the children were dependants within the
meaning of section 13 of the Workmen's Com-
pensation Act, 1906. New Monckton CoUieries.
Lim. V. Keeling (80 L. J. K.B. 1205 ; [1911]
A.C. 684) distinguished. Potts (or Young)
V. Niddrie and Benhar Coal Co., 82 L. J.
P.C. 147; [1913] A.C. 531; [1913] W.C. & I.
Rep. 547; 109 L. T. 568; 57 S. J. 685;
29 T. L. E. 626— H.L. (Sc.)
Decision of the Court of Session ([1912]
S. C. 644; [1912] W.C. Kep. 177) reversed.
7b.
Children Deserted by Father— Prospects of
Future Support.] — Dependency is always a
question of fact ; and, even where children
have been deserted by their father for three
years before his death and have received no
support from him during that time, they may
still be held to be partially dependent upon
him if there was a reasonable probability that
had he lived he would in the future have
contributed to their support. Dobbie v. Egypt
and Levant Steamship Co., [1913] S. C. 364;
[1913] W.C. & I. Rep. 75— Ct. of Sess.
Brothers and Sisters Living in Family.] —
Quare, whether when a family live together
and some of the children work and some do
not, and the workers contribute to the family
purse, the result in law is that the children
who do not work are dependants of those who
do. M'Gintij V. Kyle, [1911] S. C. 589—
Ct. of Sess.
Illegitimate Child — Dependency on Mother —
Child Maintained Gratuitously by Stranger.]
— The mother of an illegitimate child gave it,
on its birth, to a woman who had agreed to
adopt it without payment. In handing over
the child to the woman, the mother stated
that she would contribute something to its
support, and she subsequently contributed
3s. 6d. and the materials for a shawl for the
child. Apart from this contribution the child
was maintained by the woman who had
adopted it. Two months after the child's
birth the mother was killed through an acci-
dent in the course of her employment : —
Held, that the mother's legal liability to sup-
port the child was not in itself sufficient to
establish the child's dependency on her, and
that, in the circumstances, the child was not
wholly or in part dependent upon the earn-
ings of the mother at the date of her death,
and was therefore not entitled to compensa-
tion. Briggs v. Mitchell, [1911] S. C. 705—
Ct. of Sess.
Illegitimate Posthumous Child — Statements
by Deceased "Workman — Admissibility.] — The
applicant claimed compensation as the post-
humous illegitimate child of a workman who
was killed by accident arising out of and in
the course of his employment : — Held, that
statements made by the deceased that he in-
tended to marry the mother of the child before
its birth were admissible on the issues of
paternity and dependency, and that therefore
the applicant was entitled to compensation.
Lloyd V. Poicell Duffryn Steam Coal Co..
83 L. J. K.B. 1054; [1914] A.C. 733; [191
W.C. & I. Rep. 450; 111 L. T. 338; 58 S. .1.
514; 30 T. L. R. 456— H.L. (E.)
Decision of the Court of Appeal (82 L. T.
K.B. 533; [1913] 2 K.B. 130) reversed. lb.
Partial Dependency — Earnings of Child
Killed — Cost of Maintenance — Yalue of Child's
Services Rendered to Parent.] — The question
of entire dependency of an applicant for com-
pensation on the earnings of a deceased or
disabled workman is wholly a matter of fact
to be determined by the arbitrator on con-
sideration of all the circumstances of the cast-.
Maiyi Colliery Co. v. Davies (69 L. J. Q.B.
755; [1900] A.C. 229) explained and applied.
Tamicorth Collieni Co. v. Hall, 81 L. J. K.B.
159; [1911] A.C. 665; 105 L. T. 449; 55 S. J.
615; [1912] W.C. Rep. 79— H.L. (E.)
On an application for compensation by the
father of a son who was killed by an accidenf,
the County Court Judge is not precluded from
taking into account the cost of the son's
maintenance; and secondly, the pecuniary
value of the services rendered by the son in
the father's business. lb.
Decision of the Court of Appeal, sub nom.
Hall V. Tamworth Colliery Co. (80 L. J.
K.B. 304; [1911] 1 K.B. 341), affirmed wiMi
a variation. lb.
IV. PERSONS LIABLE TO PAY
COMPENSATION.
Whether Relationship of Master and Servant
Existed — Owner and Master of Ship — Crew.!
— The owners of a small coasting schooner, by
written agreement, gave command thereof to
K. on the following conditions : K. was to
work the vessel on the best paying trade for
the benefit of all concerned, receiving for his
services two-thirds of all freights carried, out
of which he was to pay all crew's wages,
victuals of crew, port charges, towages, and
all other expenses connected with the working
of the vessel; the remaining one-third K.
thereby agreed to remit to the owners as
" owners' share." If K. had cause to give up
command, and so advised the owners, and if
requested, K. was to bring the vessel to A.
free of charge. While K. was working the
vessel under this agreement one of the crew
whom he had engaged met with an accident
for which he claimed compensation against
the owners under the Workmen's Compensa-
tion Act, 1906 -.—Held, that, on the true c^m-
struction of the agreement K. was acting
merely as agent for the owners in hiring the
crew, and that the relation of master and
servant, within the meaning of the Act, existed
between the applicant and the owners. Kelly
V. " Miss Evans " (Oivners). [1913] 2 Ir. R.
385; [1913] W.C. & I. Rep. 418— C. A.
1953
WORKMEN'S COMPENSATION.
1954
A stevedore's labourer, who had been
engaged in discharging a vessel, sued the
managing owners of the vessel to recover
damages for injuries sustained by him
through stepjjing into an open scuttle, which,
as he alleged, had been negligently left un-
covered through the fault of the defenders or
of those for whom they were responsible : —
Held, that the defenders, as managing owners,
were merely the agents of the registered
owners of the vessel, and (there being no aver-
ment of personal fault) were not responsible
for the accident. M' Lauclilayi v. Hogarth,
[1911] S. C. 522— Ct. of Sess.
Principal and Contractor — Obligation on
Applicant to Elect which is Sought to be made
Liable for Compensation — Award against one,
though Partly Fruitless, a Bar to Proceedings
against other.] — An applicant who seeks to
avail himself of the provisions of section 4
of the Workmen's Compensation Act, 190-3,
must elect whether he will proceed against
the contractor or the principal, their statutory
liability for compensation in cases of accident
being alternative, and neither joint nor joint
and several. Accordingly, where a workman
obtained an award against the contractor who
employed him, but in consequence of the
bankruptcy of the contractor and liquidation
of the insuring company was unable to realise
more than a small portion of the amount
awarded, — Held, that he could not subse-
quently recover the balance of the award from
the principal. Herd v. Summers (7 Fraser,
870) followed. Meier v. Dublin Corporation,
[1912] 2 Ir. E. 129— C. A.
Sub-contracting — Execution of Work " in
the course of or for the purposes of "
Principal's "trade or business."] — Where the
owners of a steamship entered into a contract
with a contractor to scale the boilers of the
vessel, and he engaged certain workmen to
do the work, the principals not exercising any
control over the workmen, it not being their
practice to iindertake the scaling of the boilers
of their steamships themselves, they always
employing an independent contractor to do it,
the operation that the contractor had con-
tracted to perform for the principals was held
not to be work executed " in the course of or
for the purposes of " the principal's " trade
or business " within the meaning of section 4,
sub-section 1 of the Workmen's Compensation
Act, 1906, so that the principals were not liable
to pay compensation to one of the workmen
who was injured by " accident arising out of
and in the course of " his employment. Spiers
V. Elderslie Steamship Co. ([1909] S. C. 1259;
46 Sc. L. R. 893), the reasoning of which was
adopted by the Court of Appeal in England in
Skates v. Jones ,(■ Co. (79 L. J. K.B. 1168;
[1910] 2 K.B. 903), applied. Luckwill v.
Auchen Steamship Co., [1913] W.C. & I. Rep.
167; 108 L. T. 52; 12 Asp. M.C. 286— C. A.
Accident to Member of Gang — Work
Undertaken by Principal.] — A company occa-
sioiially h:ul goods brought in bulk to their
wharf, and in such cases they always employed
outside labour to unload the cargo. On
September 5, 1914, they were expecting a
cargo of sulphur, and employed a riverside
labourer, W., to supply a gang to unload it
and put it in their warehouse at Is. 6d. a ton.
On September 7, 1914, the gang came to do the
work, and B., a member of the gang, met
with an accident in the course of the unload-
ing and broke his leg. It was a common thing
among the riverside labourers that one of their
number should be employed to collect a gang
of men for a job, and the custom was that
the gang and ganger should divide what was
paid for the job equally, though generally the
members of the gang each gave 2d. to the
ganger. In this case W. had to supply the
necessary ladders and tools, and the company
provided bags for the sulphur. The com-
pany's managing director was present during
the unloading to see that no sulphur was spilt
and no space wasted in the warehouse in
storing it. He gave his orders to W. On an
application by B. to recover compensation
under the Workmen's Compensation Act, 1906,
from the company, — Held, that there was no
evidence of any contract of service between B.
and the company, and also that the company
were not liable to pay compensation to B. as
principals within section 4, sub-section 1 of
the Act, because the contract between the
company and W. did not relate to any part
of any work undertaken by the company.
Hockley v. West London Timber and Joinery
Co. (83 L. J. K.B. 1520; [1914] 3 K.B. 1013;
[1914] W' .C. & I. Rep. 504) followed. Bobbey
V. Crosbie £ Co., 84 L. J. K.B. 856; [1915]
W.C. & I. Rep. 258; 112 L. T. 900— C. A.
Contractor Employed on Work not Ordi-
narily Done by Principal — Work Undertaken
by Principal — Work Incidental to Principal's
Trade — Accident to Contractor's Workman.] —
Work executed by a contractor is not " part
of any work undertaken by the principal
within the meaning of section 4, sub-section 1
of the Workmen's Compensation Act, 1906,
merely because it is work incidental to, or
reasonably necessary for the purposes of, the
principal's trade or business. Hockley v.
West London Timber and Joinery Co.,
83 L. J. K.B. 1520; [1914] 3 K.B. 1013;
[1914] W.C. & I. Rep. 504; 112 L. T. 1;
58 S. J. 705— C.A.
A company, which carried on business as
moulding manufacturers, imported timber for
the purpose of their trade, and employed a
contractor to load the timber on to carts at
their wharves and to unload and stack it on
its arrival at their yards. It was necessary
to stack the wood for it to become seasoned.
The evidence shewed that the company never
undertook this work themselves, that it was
work requiring strong men with skill and
nerve, and that it was the practice in the
company's trade to employ contractors to do
the work. A workman in the employment of
the contractor met with an accident while
stacking the company's timber in their yard,
and was incapacitated : — Held, that the con-
tractor was not employed for the execution of
" any part of any work undertaken " by the
company within the meaning of section 4,
sub-section 1 of the Workmen's Compensation
Act, 1906, and therefore that the company
62
1955
WORKMEN'S COAIPEXSATIOX
1956
were not liable to pay compensation to the
workman under the Act. 76.
No Service of Notice on Principal within
Prescribed Time.l — See Meier v. Dublin
•Corporation, post, col. 1965.
Industrial Disease — Contributions towards
Compensation — Calculation thereof — Periods of
Time — Working Conditions.] — In determining
the contributions to be made by several em-
ployers towards compensation paid in respect
of an industrial disease under section 8, sub-
section 1 (c) (iii) of the Workmen's Compen-
sation Act, 1906, the arbitrator must take into
consideration not only the respective periods of
time in each employment, but also the work-
ing conditions in the several employments.
Barron v. Seaton Burn Coal Co. ; East Wal-
bottle Coal Co., Ex parte, 84 L. J. K.B. 682;
ri915] 1 K.B. 756; [1915] W.C. & I. Rep.
132 ; 112 L. T. 897 ; 59 S. J. 315 ; 31 T. L. K.
199— C.A.
V. CONTRACTING OUT.
See also Vol. IX. 2207.
Scheme of Compensation Duly Certified —
Jurisdiction of County Court Judge Ousted.] —
A workman who has agreed to come under a
scheme of compensation which has been
certified by the Registrar of Friendly Societies
as complying with the conditions required by
section 3, sub-section 1 of the Workmen's
Compensation Act, 1906. is outside the pro-
visions of the Act altogether. Horn v.
.Admiralty Commissioners, 80 L. J. K.B. 278;
[1911] 1 K.B. 24; 103 L. T. 614; 27 T. L. R.
84— C.A.
A tinsmith employed in a Government dock-
yard signed a contract by which he agreed to
accept the provisions of a duly certified scheme
of compensation in substitution for the pro-
visions of the Act. The scheme provided that
when it was established to the satisfaction of
the Treasury that the death of a workman had
resulted from an injury within the provisions
of the Act, remuneration according to the
scale therein mentioned should be payable to
his dependants. The tinsmith died from lead
poisoning and his widow claimed compensa-
tion from the Lords Commissioners of the
Admiralty. They at first denied liability, but
on the hearing of an application by her for
arbitration under the Act they admitted
liability to pay compensation under the
scheme. The County Court Judge made an
award in favour of the applicant for the
amount admitted to be due : — Held, that the
deceased had contracted himself out of the
Act, that the liability of the employers was
to be determined by the scheme solely, and
that consequently the jurisdiction of the
County Court Judge was entirely ousted. Jh.
Re-certification.] — The object of re-certi-
fving under the Workmen's Compensation Act.
1906, a scheme by which a workman contracts
out of the benefit of that Act is to shew that the
Registrar of Friendly Societies has looked into
the matter, and is satisfied that the scheme
conforms with the provisions of the Act which
prescribe what it is to contain or is not to con-
tain, and the words of section 15. sub-section 3,
are not to be read as referring to the provisions
in section 3 as to a ballot of the workmen,
which is a condition precedent to a scheme
under the Act of 1906 coming into operation,
but not to the re-certifying of a pre-existing
scheme. Godivin v. Admiralty Commissioners ,
82 L. J. K.B. 1126; [1913] A.C. 638; [1913]
W.C. & I. Rep. 680 ; 109 L. T. 428 ; 29 T. L. R.
774— H.L. (E.)
It is not an objection to such a scheme that
it purports to oust the jurisdiction of the
County Court. Horn v. Admiralty Commis-
sioners (80 L. J. K.B. 278; [1911] 1 K.B. 24)
approved. 76.
Judgment of the Court of Appeal (81 L. J.
K.B. .532 ; [1912] 2 K.B. 26 ; [1912] W.C. Rep.
49) affirmed. 76.
Certified Scheme — Accident during Continu-
ance of Scheme — Termination of Scheme by
Revocation of Certificate — Subsequent Claim
against Employer — Limit of Employers'
Liability.] — A workman can make no claim
against his employer under the Workmen's
Compensation Act, 1897, in respect of an
accident which happened to him during the
continuance of a duly certified scheme under
section 3 of that Act, of which scheme he was
a member, after the scheme has been ter-
minated and its funds exhausted. Horoarth
V. Knowles, 82 L. J. K.B. 1325; [1913]
3 K.B. 675; [1913] W.C. & I. Rep. 746;
109 L. T. 278; 57 S. J. 728; 29 T. L. R. 667
—C.A.
"Accident" — Industrial Disease — Provi-
sions of Act Incorporated in Scheme.] — The
rules of a contracting-out sclieme which had
been duly certified by the Registrar of Friendly
Societies provided that it was intended to be
in substitution for the Employers' Liability
Act, 1880, the Workmen's Compensation Act,
1906, and common law liability, and was in-
tended to provide a fund for the payment of
compensation to any iiicinber of the scheme
in respect of personal injury caused by accident
arising out of or in the course of such member's
employment : — Held, that the word " acci-
dent " must be read in the sense in which it
is used in the Workmen's Compensation Act,
1906, and as therefore including disablement
owin_:^ to industrial disease, and that the
sections of the Act of 1906 dealing with the
recovery of compensation for industrial disease
must be read into the scheme. 77orn v.
Admiralty Commissioners (80 L. J. K.B. 278;
[1911] 1 K.B. 24) distinguished. Leaf v.
Furze, 83 L. J. K.B. 1822; [1914] 3 K.B.
1068; [1914] W.C. & I. Rep. 601; 111 L. T.
1100— D.
Determination of Claims for Compensation
by Committee of Management — Ouster of
Jurisdiction of Court.] — A scheme made by the
defendant company pursuant to section 3 of
the Workmen's Compensation Act, 1906, pro-
vided that any question with regard to what
was an injury within the meaning of that
term as used in the scheme should be deter-
mined by the committee of management, and
that any other question with respect to the
scheme should be settled by the committee,
whose decision should be final and conclusive.
The widow of a workman who met with a
1957
WOEKMENS COMPENSATION.
1958
fatal accident claimed compensation, but the
committee refused to admit the claim, giving
no reasons for their decision : — Held, that the
decision of the committee was final and ousted
the jurisdiction of the Courts, that the only
liability of the employer was to pay such sum
as under the scheme the committee should find
to be payable, and that as the committee had
not determined in the plaintiff's favour, she
had no cause of action. Haworth v. Knowles
(19 T. L. E. 658) distinguished. Allen v.
Great Eastern Railway, 83 L. J. K.B. 898;
[1914] 2 K.B. 243; [1914] W.C. & I. Eep.
388; 110 L. T. 498— C. A.
VI. PKOCEEDINGS TO OBTAIN
COMPENSATION.
1. Notice of Accident.
See also Vol. IX. 2244.
Verbal Notice — Prejudice.] — A workman
met with an accident on a date which was in
dispute, but was, according to the workman
himself, December 28, 1911. He continued
working till January 22, 1912, when he saw
the employers' ambulance man and arranged
to see a doctor. He said he gave verbal notice
of the accident to this man^ but this was
denied. On February 5, 1912, the workman's
mother gave verbal notice of the accident to
the employers' cashier. No proceedings to
recover compensation were commenced until
January 23, 1913. The County Court Judge
made his award in favour of the workman : —
Held, that the verbal notice was not a sufficient
notice within the meaning of section 2 of the
Workmen's Compensation Act, 1906, and that,
as the employers were clearly prejudiced by
the delay in giving notice, the award must be
set aside. Coltman v. Morrison d Mason,
Lim.. [1914] W.C. & I. Eep. 4a-C.A.
Verbal Notice to Sub-contractor — No Notice
to Principal for Four Months — Expectation
that Sub-contractor would Give Notice — Claim
against Principal — Prejudice — Mistake.] — A
was building some houses and entered into a
contract with B under which B was to do
a certain part of the work. A workman em-
ployed by B met with an accident. The work-
man gave verbal notice to B expecting that
he would inform A, but he did not do so, and
A received no notice of the accident until
more than four months after it happened,
when the workman served him with a formal
notice of it. The County Court Judge held
that the claim was prejudiced by want of
notice at an earlier date : — Held, that the
expectation of the workman that B would
inform A of the accident did not amount to
a " mistake " within section 2, sub-section 1 (b)
of the Workmen's Compensation Act, 1906,
and the workman co\ild make no claim against
A. Griffiths v. .itkinson, 106 L. T. 852;
[1912] W.C. Eep. 277— C.A.
Particulars Written Down in Workman's
Presence by Mine Official.^ — A 1ioy met with
an accident while working with his father in
a colliery and was unable to resume work for
thirteen days. Before leaving the mine on
the day of the accident, he and his father
gave full particulars of the accident to the
manager of the level, who wrote down par-
ticulars of it in their presence, in a diary kept
by the company on the level for the purpose.
Written notice of the accident was not served
on the colliery company until the day after
the boy resumed work, and there was evidence
that, in accordance with the usual practice of
the mine, the entry in the diary was not
brought to the attention of the "officials in
charge of compensation claims, so that no
doctor was sent to examine the boy's injuries.
The County Court Judge found on this evi-
dence that the colliery company had been
prejudiced by the delay in giving formal notice
of the accident, and refused the boy's applica-
tion for compensation : — Held, that the entry
made in the company's book in the presence
of the boy and his father constituted a
written notice of the accident sufficient to
satisfy section 2 of the Workmen's Compen-
sation Act, 1906, and also held, that, in any
case, the company had not been prejudiced
by the delay in delivering the formal notice.
Stevens v. Insoles, Lim., 81 L. J. K.B. 47;
[1912] 1 K.B. 36; 105 L. T. 67; [1912] W.C.
Eep. Ill— C.A.
Notice Not Given as Soon as Possible.! —
The respondent, who was a barber's assistant
in the employment of the appellant, began on
January 17 to suffer from smarting of the
hands, and in February a doctor diagnosed his
malady as dermatitis. The respondent con-
tinued to work till March 28. when he left.
In April the respondent's solicitor wrote to the
appellant, claiming damages for injury caused
by the use of dangerous dry shampoo. The
Judge awarded compensation to the respon-
dent : — Held, that there was no evidence of an
accident at a definite time and place, and
there was no notice as soon as possible after
the accident, and the respondent was not
entitled to compensation. Petschett v. Preis.
[1915] W.C. & I. Eep. 11: 31 T. L. E. 156
—C.A.
Delay in Giving Notice — Prejudice —
"Mistake ... or other reasonable cause.""' —
Where a workman fails to give notice of an
accident as soon as practicable merely because
he does not realise the extent of the injury he
has sustained, the delay in giving notice is
not due to " mistake ... or other reasonable
cause " within the meaning of section 2 of the
Workmen's Compensation Act, 1906. Dicta
of Lord Adam in Rankine v. .4lloa Coal Co.
(G Eraser, 375 ; 41 Sc. L. E. 306) not followed.
Edqerton v. Moore, 81 L. J. K.B. 696: [1912]
2 K.B. 308; 106 L. T. 663; [1912] W.C. Eep.
250— C.A.
A workman met with an accident which
caused a swelling of his breast. He resumed
work with another employer a few days later.
About seven or eight months afterwards his
breast began to pain him again, and he
realised that the trouble was due to the acci-
dent. A few months afterwards his breast
had to be operated on for a tubercular abscess.
No written notice of the accident was given
until about a year from the date of the
accident : — Held, that the employer must
necessarily be prejudiced by the failure to
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WORKMEN'S COMPENSATION.
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give notice of the accident for so long a period
and that the delay in giving such notice was
not due to " mistake ... or other reason-
able cause," within the meaning of section 2
of the Workmen's Compensation Act, 1906,
and therefore that the workman was debarred
from recovering compensation. 7b.
On May 9, 1910, a collector for an insurance
company fell on a stair which he had occasion
to use in the course of his employment, and
sustained injuries. A day or two after the
accident, and again on June 8, while he still
believed that his injuries were merely of a
temporary nature, he gave verbal notice of the
accident to the manager of his company, but
made no claim for compensation. On June 29
he left the service of the company, and from
that date onwards he was incapacitated for
work. On September 12, when he had ascer-
tained from medical advice that his condition
was much more serious than he had at first
supposed, he gave formal notice of the acci-
dent to his employers : — Held, in the circum-
stances, that the delay in giving notice was
due to " mistake or other reasonable cause "
within section 2, sub-section 1 (a) of the
Workmen's Compensation Act, 1906, and so
was not a bar to the maintenance of proceed-
ings for compensation. Millar v. Refuge
Assura^ice Co., [1912] S. C. 37— Ct. of Sess.
The applicant, a salesman in the employ-
ment of the respondents, was injured on
April 3, 1912, by falling from steps while
engaged in window-dressing. He continued at
work for about two months after the accident,
although in continuous pain throughout that
time. Ultimately he was incapacitated for
work as a result of the accident, and he com-
menced proceedings claiming compensation
under the Workmen's Compensation Act, 1906.
Written notice of the accident, as required by
section 2 of the Act, was not given till June 3,
1912, but the County Court Judge held that
the delay in giving notice was due to a reason-
able cause, in that the applicant was able to
continue to do his work and did not believe
that the injury would result in his having to
make a claim for compensation. The County
Court judge accordingly made an award in
favour of the applicant. The employers
appealed : — Held, allowing the appeal, that
as this was not a case where the injury was
not apparent, or a case where the injury was
so trivial that it would be absurd to expect
a workman to give notice of the accident, but
was a case where the applicant was in daily,
constant, serious pain, the County Court Judge
was wrong in holding that the delay in giving
notice of the accident was due to a reasonable
cause. Webster v. Cohen, [1913] W.C. & I.
Rep. 268; 108 L. T. 197; 67 S. J. 244;
29 T. L. R. 217— C. A.
In an arbitration under the Workmen's
Compensation Act, 1906. the arbitrator found
that the claimant alleged that he was injured
by an accident on June 1, 1911; that there-
after he suffered from pain in his neck and
shoulders, which he attributed to the accident ;
that on August 5 he consulted a doctor, who
diagnosed his trouble as, and treated him for,
muscular rheumatism ; that on November 11
the claimant left his employment and there-
after was treated for severe strain of the neck ;
that on December 13 he consulted another
doctor, who told him that he was suffering
from partial dislocation of the head from the
spine, and advised him that his case was
dangerous and required treatment in a hos-
pital; that in January, 1912 (that is, after he
had left his employment and more than six
months after the accident), he for the first time
gave notice of the accident to his employers
and claimed compensation from them : — Held,
that as the delay in giving notice and claim-
ing compensation was due to the workman's
ignorance of the serious nature of his injury
it was occasioned by " mistake or other
reasonable cause " within section 2, sub-sec-
tion 1 of the Act, and so was not a bar to
the maintenance of proceedings for compensa-
tion. Ellis V. Fairfield Shipbuilding and
Engineering Co., [1913] S. C. 217; [1913]
W.C. & I. Rep. 88— Ct. of Sess.
A workman fell from a stable loft on to his
head, and for three days afterwards was un-
able to work. Upon return to work he suffered
continuously from headache, and after some
months became incapacitated and seriously ill.
No written notice, however, was given until
a year after the accident. The County Court
Judge found that the failure to give notice
was occasioned by mistake or other reasonable
cause — namely, the belief that he would soon
recover, which lasted until he was too ill to
give notice : — Held (following Webster v.
Cohen, [1913] W.C. & I. Rep. 268; 108 L. T.
197), that this was a misdirection, and that
the want of notice was not occasioned by mis-
take. Clapp V. Carter, [1914] W.C. & I. Rep.
80; 110 L. T. 491; 58 S. J. 232— C.A.
Where a workman sustained an " injury by
accident arising out of and in the course of "
his employment within the meaning of sec-
tion 1 of the Workmen's Compensation Act,
1906, which injury fell within the term
" latent," it is a " reasonable cause " for his
not giving notice of the accident as soon as
practicable after the happening thereof, as
required by section 2 of that Act, where he
was unaware that the illness from which he
was suffering was attributable to and due to
the accident. Webster v. Cohen ([1913]
W.C. & I. Rep. 268; 108 L. T. 197) dis-
tinguished. Thompson v. North-Eastern
Marine Engineering Co., [1914] W.C. & I.
Rep. 13; liO L. T. 441— C.A.
" Reasonable cause " for Failure — Injury
neither Latent nor Trivial.] — An action under
the Fatal Accidents Act, 1846, is an action
brought to recover damages " for injury caused
by an accident " within the meaning of sec-
tion 1, sub-section 4 of the Workmen's Com-
pensation Actj 1906. Potter v. Welsh d Sons,
Lim., 83 L. J. K.B. 1852; [1914] 3 E.B.
1020; [19141 W.C. & I. Rep. 607; 112L. T.7;
30 T. L. R. 644— C.A.
A workman whilst employed in moving a
trolley through a doorway received a severe
blow on the head and also a jagged wound on
his tongue by reason of a tooth being forced
through it. He did not consider the injury
serious at the time. He mentioned it to his
foreman, but no written notice of the accident
was given, and he continued at work. Cancer
of the tongue supervened, but his doctor did
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WOKKMEN'S COMPENSATION.
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not inform him of the nature of the trouble.
He remained at work until a week before his
death, which took place in July, 1913, the
accident having happened the previous
January. His widow brought an action under
the Fatal Accidents Act, 1846, against his
employers, but the jury gave a verdict for the
defendants on the ground of contributory
negligence. The plaintiif then applied to
Channell, J., before whom the action was
tried, to assess compensation under section 1,
sub-section 4 of the Workmen's Compensation
Act, 1906. His Lordship did so, holding that
the action was within sub-section 4 of section 1
of the Act, and that the deceased had acted
reasonably in not giving notice of the accident
to the employers. The Court of Appeal affirmed
Channell, J., on the first point, Ijut reversed
him on the second point on the ground that,
as the injury was neither latent nor trivial,
no " reasonable cause " was shewn within sec-
tion 2 of the Act for the failure to give notice
of the accident, and that, therefore, the claim
to compensation failed. 76.
Webster v. Cohen ([1913] W.C. & I. Eep.
268; 29 T. L. E. 217) and Clapp v. Carter
([1914] W.C. & I. Rep. 80) applied. lb.
A workman, who could not read or write,
sustained an apparently trifling injury to his
finger on December 2, 1913. His doctor
treated the case as one of septic poisoning,
but disapproved of his returning to work.
The workman, however, continued to work
until February 22, 1914, when he became
disabled. In March he consulted another
doctor, upon whose advice he went into a
hospital, and remained there from March 24
till April 22. He was found to be suffering
from an obscure constitutional disease, which
might be awakened into activity by such an
injury as he had sustained. It was not until
he consulted the second doctor in March that
he began to regard his injury as serious, and
not until he was in hospital that he began to
consider the question of compensation. Formal
notice was first given to the employers on his
behalf on April 22 : — Held, that on these facts
the arbitrator was entitled to find that the
workman's failure to give notice as soon as
practicable was due to a " reasonable cause."
Flood V. Smith <f Leishman, [1915] S. C. 726;
[1915] W.C. & I. Rep. 212— Ct. of Sess.
And see Eke v. Hart-Dyke, ante, col. 1892.
Employers " prejudiced in their de-
fence."]— If a workiiiim wlio has been injured
by " accident arising out of and in the course
of" his employment, within the meaning of sec-
tion 1 of the Workmen's Compensation Act,
1906, has reason to believe that, although he
is apparently well, the accident may be at-
tended with serious consequences, then he
must give notice to his employer " as soon as
practicable after the happening thereof," as
required by section 2, sub-section 1 of the Act.
But it is not necessary for such notice to be
given by every workman who has suffered
some slight injury such as a scratch on his
finger. Where, liowever, a workman sustained
what was apparently only an abrasion on the
palm of his hand, but, although his hand
gradually got worse, he continued working at
his employment for some days after the
happening of the accident and he delayed in
giving notice thereof to his employers until
he was found to be suffering from septic
poisoning, it was held that in the circum-
stances of the case the learned County Court
Judge had come to a perfectly right con-
clusion in deciding that the delay was not
brought within the exception " mistake or
other reasonable cause," and that the employers
were thereby " prejudiced in their defence."
Snelling v. Norton Hill Colliery Co., [1913]
W.C. & I. Rep. 497 ; 109 L. T. 81— C.A.
The applicant was employed by the respon-
dent in a hop garden. On February 18, 1913,
he was using a heavy beadle for driving piles
into the ground, but he had to drop it as he
felt that he had injured himself. He suffered
pain in his left side, but he continued to work
till March 14. He made no communication
at all to the respondent relating to his injury,
and although there was a change of his work,
and it was of a lighter description, the change
was not due in any respect to what had hap-
pened on February 18. In March the applicant
consulted his doctor, who advised him to go
to a hospital. On May 23 he was discharged
from the hospital, and it was not until June 23
that he gave any notice of the accident which
was alleged to have taken place on February 18.
The ailment from which the applicant was
found to be suffering was weakness of heart
consequent upon strain continuing for some
time thereon. It was a strain, however, which
without the applicant being conscious of it
might certainly have been due not to any one
single occurrence which could be called an
" accident " within the meaning of the Work-
men's Compensation Act, 1906. but to a course
of hard labour done by a workman extending
over months or years : — Held, that the appli-
cant not having given the respondent notice of
the alleged accident " as soon as practicable
after the happening thereof," within the
meaning of section 2 of the Act, had cast upon
him the burden of satisfying the Court
affirmatively that the respondent was not
" prejudiced in his defence " by such want of
notice ; and that that burden the applicant
had not discharged, the circumstances of the
alleged accident being such that it was of the
utmost importance that the respondent should
have known at once that the fall of the beadle,
which did not cause any apparent injury, was
an " accident " involving liability on his part
to pay compensation to the applicant. Hughes
V. Coed Talon Colliery Co. (78 L. J. K.B. 539;
[1909] 1 K.B. 957) considered and applied.
lyig V. Higgs, [1914] W.C. & I. Rep. 84;
110 L. T. 442— C.A. And see Stevens v.
Insoles, Lim., ante, col. 1958.
Onus of Proof.] — A charwoman broke her
kneecap. She alleged that she broke it on
July 8, 1913, while working for the respon-
dents. They alleged that she broke it on the
following day in her own house. She claimed
compensation. She gave no written notice of
the accident until July 29, 1913. She said she
told a caretaker of her employers of the acci-
dent. Want of notice was not shewn to be
due to mistake or other reasonable cause : —
Held, that the woman had not discharged the
onus of proving that her employers had not
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been prejudiced in their defence by the want
of notice, and that the proceedings were there-
fore barred. Hodgson v. Robins, Hay, Waters
,i Hay, [1914] W.C. & I. Eep. 65— C.A. S. P.
Lacey v. Moivlem <£• Co., [1914] W.C. &
I. Eep. 63— C.A.
On Wednesday, September 24, 1913, a work-
man slightly injured a finger while working
in his employment. He got it bound up with
a rag, but went on working for that and the
two following days. On Saturday, Septem-
ber 27, he went to work as usual in the
morning, but at 10 a.m. had to cease working,
because he could not hold his hammer. He
first saw a doctor on Monday morning,
September 29, who found that the finger was
then in a septic condition, and had been so for
" some time " before. He gave no notice till
the Monday morning : — Held, that as from
10 A.M. on Saturday, September 27, there was
no reasonable cause for the want of notice,
and that the employers had been prejudiced
thereby, and that the proceedings were there-
fore barred under section 2, sub-section 1 (a)
of the Workmen's Compensation Act, 1906.
Wassail V. Russell if Sons, Lim., 84 L. J.
K.B. 1G06; [1915] W.C. & I. Eep. 88;
112 L. T. 902~C.A.
On Thursday, August 20, 1914, a miner,
while working in his employment, was struck
in the eye by a piece of coal. It caused a
certain amount of pain and pricking. He
stopped work, washed his eye, and did no more
work that day, except that he assisted a fellow
employee to push tubs. He did not go to
work next day, Friday, because of his injury.
From the Saturday following the colliery was
closed for a five days' holiday. He first saw
a doctor on Monday, August 24. Before
seeing the doctor he had treated his eye with
a lotion himself. The eye ultimately became
septic, and he lost the sight of it. He gave
no notice of the accident until August 27.
Upon a claim for compensation the original
triviality of the injury was alleged as
" reasonable cause " for want of notice ; it was
not contended that the employers were not
prejudiced : — Held, that there was no " rea-
sonable cause " for the want of notice within
section 2, sub-section 1 (a) of the Workmen's
Compensation Act, 1906, and that the claim
was therefore barred. Fnx v. Barroto Hematite
Steel Co., 84 L. J. K.B. 1327; [1915] W.C.
& I. Eep. 321; 113 L. T. 528— C.A.
On Friday, June 26, 1914, a carter, while
working in his employment, was struck in the
eye by something which caused pain and
bleeding. He immediately left off work and
went and saw his doctor. He went back to
work next day, Saturday, which was the last
day he worked. The following week was a
holiday. He gave no notice to his employer
until Monday, July 6, and then only verbal
notice. No written notice of any kind was
given until August or September. Upon a
claim for compensation the arbitrator found
that there was no reasonable cause for the
want of notice, within section 2, sub-
section 1 (a) of the Workmen's Compensation
Act, 1906, and also that there was no evidence
from which he could find that the employer
was not prejudiced in his defence, and that
he might have been prejudiced, and that the
claim was therefore barred. On appeal on
the question of "no prejudice," — Held, that
the arbitrator having declined to find that the
employer was not prejudiced in his defence,
upon evidence which justified his finding, his
decision could not be interfered with. Hay-
xcard v. West Leigh Colliery (84 L. J. K.B.
661; [1915] A.C. 540; [1915] W.C. & I. Eep.
233) discussed and explained. Miller v.
Richardson, 84 L. J. K.B. 1366; [1915] 3 K.B.
76; [1915] W.C. & I. Eep. 381; 113 L. T.
609— C.A.
Employers not " prejudiced in their
defence."] — Where an accident to a workman
" arising out of and in the course of " his
employment within the meaning of section 1,
sub-section 1 of the Workmen's Compensation
Act, 1906, produced injuries to him which he
thought, and had reason for thinking, were
trivial in the first instance, the exact nature
of the injuries not being ascertained until some
months after the occurrence of the accident,
it was held that want of notice thereof was
occaeioned by " reasonable cause " within the
meaning of section 2, sub-section 1 (a) of the
Act ; and that the employers were not thereby
" prejudiced in their defence." Haward v.
Rowsell, [1914] W.C. & I. Eep. 314 ; 111 L. T.
771— C.A.
By section 2 of the Workmen's Compensa-
tion Act, 1906, notice of an accident is to be
given to the employer " as soon as practicable
after the happening thereof . . . Provided
always that — (a) the want of . . . such notice
shall not be a bar to the maintenance of such
proceedings if it is found in the proceedings
for settling the claim that the employer is
not . . . prejudiced in his defence by the
want " of such notice. A workman injured
his leg on a Tuesday by an accident arising
out of and in the course of his employment.
At first the injury did not appear to be serious,
and he continued at work for a day or two,
but blood poisoning set in, and he died on the
Thursday week after the accident. Verbal
notice of the accident was given to the
employers on the Tuesday after the accident.
At the hearing of a claim for compensation by
his dependants before a County Court Judge,
the applicant proved these facts, and the
employers called no evidence to shew that they
had been in any way prejudiced in their
defence by want of proper notice of the
accident : — Held, that there was evidence upon
which the County Court Judge could hold that
they had not in fact been prejudiced. Hayward
V. West Leigh Colliery, 84 L. J. K.B. 661;
[1915] A.C. 5i0; [1915] W.C. & I. Eep. 233;
112 L. T. 1001 ; 59 S. J. 269 ; 31 T. L. E. 215
— H.L. (E.)
Decision of the Court of Appeal ([1914}
W.C. & I. Eep. 21) reversed. lb.
Suicide — " Noyus actus interveniens " —
Insanity — Evidence — Notice.] — On Decem-
ber 4, 1913, a workman injured his right
eye while working in his employment. On
December 5 he saw his own doctor. On Decem-
ber 19 he consulted an eye specialist. On
December 20 he committed suicide. He had
continued doing his ordinary work with one
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WOKKMEN'S COMPENSATION.
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small exception from the time of the acci-
dent until his death. He became depressed,
and suffered pain before December 19, and on
that day was terribly depressed and suffered
great pain. He was in fear of losing his sight
or his work. He had been a cheerful man,
and was of excellent character. There was
medical opinion that he was insane when he
committed suicide. He had given no notice
of the accident, but three days after his death
notice was given by his widow's solicitors : —
Held, that there was no evidence to justify the
Court in arriving at the conclusion that the
man was insane when he committed suicide,
and that his death did not therefore arise " out
of " the employment within section 1, sub-
section 1 of the Workmen's Compensation Act,
1906, and that there was no reasonable excuse
for the want of notice by the man himself,
and no evidence that the employer was not
prejudiced thereby, and that the want of such
notice was not affected by the notice given
after the man's death, and was consequently
a bar to proceedings by his dependants under
section 2, sub-section 1 of the Act. Grime v.
Fletcher, 84 L. J. K.B. 847 ; [1915] 1 K.B.
734; ri915] W.C. & T. Rep. 250: 112 L. T.
840; 59 S. J. 233: 31 T. L. E. 158— C. A.
Principal or Contractor.] — The failure to
serve notice of accident and claim on the
principal within the prescribed time is an
answer to anv claim against the principal.
Meier v. Diihtin Corporation, [1912] 2 Ir. R.
129— C. A.
2. Claim for Compensation.
See also Vol. IX. 2243.
Claim — Sufficiency of.] — The applicant,
having been injured by accident while in the
defendants service, claimed compensation
under the Workmen's Compensation Act, 1906.
He did not suggest that he had himself given
notice of any claim for compensation under
the Act, but his wife gave evidence to the
effect that she had written to the respondent
each week for her husband's wages, and that
the respondent had paid five weeks immediately
after the accident and then stopped payment.
During the sixth week she saw the respondent
at his house and asked him, if he would not
compensate the applicant, whether he would
compensate her and the children. He replied
she was nothing to him or he to her, but he
was sorry for them : — Held, that there had
been no notice of a claim for compensation
under the Act, and that the applicant was
therefore not entitled to an award of compen-
sation. Johnson v. Wootton, 27 T. L. R. 487
— C.A.
Claim not made within Six Months —
"Reasonable cause."] — A workman, who had
been injured, was offered compensation under
the Workmen's Compensation Act. He re-
solved not to accept it, and instructed a
solicitor to recover damages. The solicitor
threatened on Iiis behalf to raise an action at
common law against the employers, and had
several meetings with the solicitor of the
insurance company which insured the em-
ployers, who was anxious to avoid litigation
and to get the workman to accept compensa-
tion. Nothing, however, had been arranged,
and no action had been raised by the work-
man when the period of six months from the
accident expired. On the workman subse-
quently initiating proceedings under the Act,
the arbitrator found that he had failed to
make a claim timeously in terms of the Act,
and that there was no reasonable cause for this
failure, and dismissed the application. On
appeal, the workman contended that there had
been what was equivalent to a claim, or,
alttrnatively, that the employers were, in the
circumstances, barred from founding on the
absence of a claim : — Held, that there was no
ground for disturbing the arbitrator's findings.
Devons v. .Anderson, [1911] S. C. 181— Ct. of
Sess.
Industrial Disease — Certificate Fixing
of Disablement more than Six Months Pre-
viously— Claim for Compensation.] — Where
the certifying surgeon in his certificate under
section 8 of the Workmen's Compensation Act,
1906, fixes the date of the disablement caused
by an industrial disease (which by section 8,
sub-section 1 (a), is to be treated as the
happening of the accident) more than six
months before the date of the certificate, that
circumstance amounts to " reasonable cause "
within section 2, sub-section 1 (b), for the
failure by the workman to make a claim for
compensation within six months from the
occurrence of the accident, unless the work-
man's visit to the certifying surgeon was
unduly delayed. Moore v. Naval Colliery
Co., 81 L. J. K.B. 149: [1912] 1 K.B. 28;
105 L. T. 83S: [1912] W.C. Rep. 81— C.A.
Reasonable Cause — Workman not Dis-
abled from Working within the Six Months.l —
A miner met with an accident while at work on
November 21, 1911, which caused a swelling in
his groin. After resting for an hour he was
! able to resume work and the swelling went
I down by the next day and he was able to go
I to work as usual. Four months later, and
j again nine months after that, the swelling
reappeared while he was at work, but sub-
sided, and he was able to go on working.
Ultimately, in February, 1914, the swelling
I reappeared, and he was incapacitated by a
! small hernia. Upon an application by the
! workman for compensation under the Work-
men's Compensation Act, 1906, the employers
, admitted that the injury was due to accident
I arising out of and in the course of the man's
employment, and waived any question as to
j notice : — Held, that the failure to make a
I claim for compensation within six months from
the accident was occasioned by reasonable
cause within section 2, sub-section 1 lb) of the
Act. Coulson V. South Moor Colliery Co.,
84 L. J. K.B. 508; [1915] W.C. & I. Rep.
161; 112 L. T. 901; 31 T. L. R. 207— C.A.
Payment of Wages during Incapacity —
"Reasonable cause."] — On October 31, 1913,
the applicant, a horse keeper, severely injured
the fingers of his left hand while in the employ
of the respondent. Next day he told the
respondent, who said, " You can potter about
the factory until you are better," and con-
tinued to pay him his full wages until .Tune 13,
1911, when he was dismissed for misconduct
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woek:\ien's compensation.
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not connected with tlie accident. At this
time he was nearly doing his old work again.
The applicant said that he told the respon-
dent's foreman that his doctor had told him
to claim compensation, and that the foreman
replied that he should have his wages. The
applicant had heen seventeen years in the
respondent's employment. The applicant made
no claim for compensation within the six
months prescribed by section 2, sub-section 1
of the Workmen's Compensation Act, 1906,
and the respondent denied liability on this
ground when proceedings were commenced on
December 21, 1914 : — Held, without deciding
that in all cases payment of wages is " reason-
able cause " for not making a claim within
the prescribed period, that the payment of
wages, coupled with the other circumstances
of this case, was " reasonable cause " for not
making the claim within section 2, sub-
section 1 (b) of the Workmen's Compensation
Act, 1906, and that the employer was therefore
liable to pay compensation. Healy v.
GaUoway (41 Ir. L. T. 5) did not decide the
proposition that payment of wages is not a
" reasonable cause " for not making a claim;
and Lynch v. LansdowJie (Marquis) ([1914]
W.C. & I. Eep. 244; 48 Ir. L. T. 89), so
far as it rests upon the assumption that Healy
V. Galloway (41 Ir. L. T. 5) laid down that
proposition is not an authoritv. Luckie v.
Merry, 84 L. J. K.B. 1388: [1915] 3 K.B. 83;
[1915] W.C. & I. Eep. 395 ; 113 L. T. 667 ;
59 S. J. 544; 31 T. L. E. 466— C. A.
Ignorance of Existence of Act.] — Ignorance
of the existence of the Workmen's Compensa-
tion Act, 1906, is not, within section 2, sub-
section 1 (b), a " mistake ... or other
reasonable cause " for the workman's failure
to make his claim for compensation within six
months from the occurrence of the accident.
Roles V. Pascall, 80 L. J. K.B. 728; [1911]
1 K.B. 982; 104 L. T. 298— C.A.
Delay " occasioned by . . . absence from
the United Kingdom."] — A workman's failure
to claim compensation against his employers
under the Workmen's Compensation Act, 1906,
within six months of the occurrence of the
accident in respect of which he is seeking
to recover compensation, may be " occasioned
by . . . absence from the United Kingdom "
wiHiin the meaning of section 2, sub-
section 1 (b) of the Act, although he might,
if he had wished, have returned to the United
Kingdom in time to make a claim within that
period. The question whether the failure of a
workman to make a claim under the Work-
men's Compensation Act, 1906, within six
months of the accident is occasioned by his
absence from the United Kingdom is in every
case a question of fact for the arbitrator.
Diqht V. " Craster Hall " (Otvners), 82 L. J.
K.B. 1307; [1913] 3 K.B. 700; [1913] W.C. &
I. Eep. 714; 109 L. T. 200; 29 T. L. E. 676
—C.A.
Assessment of Compensation where Action
of Damages has Failed — Parties Entitled to
such Assessment — Claim not made within Six
Months.] — The privilege of having compensa-
tion assessed given by section 1, sub-section 4
of the Workmen's Compensation Act, 1906, is
a privilege personal to the pursuer in the action
for damages, and other persons who have not
claimed compensation within six months are
not entitled to be made parties to the compen-
sation proceedings. M' Ginty v. Kyle, [1911]
S. C. 589— Ct. of Sess.
Acquiescence by Workman in Discontinuance
of Compensation.] — A workman who in April,
1910, sustained injuries to his back through an
accident received compensation, under agree-
ment with his employers, at the full rate till
February, 1911, when he was certified to be
fit for light work. Thereafter compensation at
a reduced rate was paid till August, 1912, when
the employers ceased to make further pay-
ments. No memorandum was ever recorded.
In October, 1912, the workman threatened pro-
ceedings for the recovery of compensation, and
the employers then denied liability. No further
steps, however, were taken by the workman
until February, 1914, when, having become
totally incapacitated through spinal sclerosis
resulting from his injury, he intimated that
fact to his employers, and subsequently applied
for an award of partial compensation from
August, 1912, till February, 1914, and for full
compensation thereafter. It was proved that
he had never fully recovered from the results
of the accident and had never returned to work,
but that the sclerosis was not diagnosed till
December, 1913. There was no evidence that
the employers had been prejudiced by his delay
in taking proceedings. The arbitrator having
awarded compensation as claimed, the em-
ployers appealed on the ground that the
workman's claim for compensation for the
period from August, 1912, to February, 1914,
was excluded by his acquiescence in the non-
payment of it throughout that period : — Held,
that in the ciccumstances the arbitrator was
entitled to make the award. Ranlnne v. Fije
Coal Co., [1915] S. C. 476; [1915] W.C. & I.
Eep. 207— Ct. of Sess.
Observations on the circumstances in which
silence on the part of a workman in the face
of his employer's refusal to continue payment
of compensation will liar his claim. /().
Discharge by Workman of Future Claims to
Compensation — Validity.] — Circumstances in
whieli a receipt by a workman for payments
of compensation, containing, as his employer
contended, a final discharge of all future
claims, held, not to bar the workman from
making further claims, in respect that it had
been granted by the workman gratuitously
and under essential error as to its effect.
MacandreiD v. Gilhooley, [1911] S. C. 448—
Ct. of Sess.
Release of "all claims" under Merchant
Shipping Act, 1894 — Subsequent Incapacity
for Work Resulting from Accident on Voyage.]
— The release signed by a seaman, on his
discharge, of " all claims in respect of the past
voyage " under section 136 of the Merchant
Shipping Act, 1894, without excepting from
such release any specified claim or demand as
provided by section 60 of the Merchant Ship-
ping Act, 1906, is not a bar to a claim for
compensation under the Workmen's Compensa-
tion Act, 1906, in respect of an injury by an
accident which happened during the voyage,
1969
WOEKMEN'S COMPENSATION.
1970
but from the effects of which the seaman does
not become incapacitated for work until after
he has been discharged. Btils \. " Teutonic "
(Owners), 82 L. J. K.B. 1331; [1913] 3 K.B.
695; [1913] W.C. & I. Rep. 752; 109 L. T.
127; 29 T. L. R. 675— C. A.
Effect of Imprisonment of Workman — Con-
tinuance of Incapacity Caused by Accident.] —
A workman who liad met with an accident in
the course of his employment, and was in
receipt of 11. a week compensation from his
employers, was convicted of stealing and sen-
tenced to eighteen months' imprisonment with
hard labour. The employers stopped payment.
The workman claimed compensation. He was
still suffering from partial incapacity for work
as the result of his accident : — Held, that, as
the incapacity caused liy the accident fctill con-
tinued, the workman, notwithstanding his
imprisonment, was entitled to compensation
under section 1, sub-section 1 of the Work-
men's Compensation Act, 1906. McXaUy v.
Furness, Withy d Co., 82 L. J. K.B. 1310;
[1913] 3 K.B. 605; [1913] W.C. & I. Rep.
717 ; 109 L. T. 270 ; 29 T. L. R. 678— C.A.
Effect of Public Authorities Protection Act.]
— See Fry v. Cheltetiham Corporation , ante.
col. 1219.'
3. Proceedings in Name of Workman.
Approved Society — Retainer by Workman.]
— The appellant", who was a carter in the
employment of the respondent and was a mem-
ber of an approved society, was incapacitated
by an accident, and the society informed him
that their solicitors would act for him, fi-ee of
charge, in making a claim for compensation.
The appellant then signed a retainer authoris-
ing these solicitors to act on his behalf, and
proceedings in the appellant's name were
begun against the respondent. The County
Court Judge dismissed the application on the
ground that counsel for the appellant declined
to state for whom he appeared : — Held, that,
although the society could not use the name of
the appellant except in the events and upon
the terms mentioned in section 11, sub-
section 2 of the National Insurance Act, 1911 ,
the retainer was prima facie evidence (although
not conclusive) that the appellant was acting
in his own interest, and that therefore the
Judge ought to have heard the evidence before
arriving at a conclusion. Allen v. Francis,
83 L. J. K.B. 1814; [1914] 3 K.B. 1065;
[1914] W.C. & I. Rep. 599; 112 L. T. 62;
58 S. J. 753; 30 T. L. R. 695— C.A.
No Refusal on Part on Workman to take
Proceedings — Reasonable Inference that Work-
man Insured Member of Approved Society —
Surprise.^ — A workman having met witii an
accident, two letters, dated April 23, 1914, and
May 2, 1914, were written on behalf of an
approved society stating that it was purposing
to take proceedings for the workman against
the employer to obtain compensation under
the Workmen's Compensation Act, 1906. Pro-
ceedings were then brought, and at the hearing
the secretary of the local branch of the
approved society, who was called to give expert
evidence, said, in answer to questions put in
cross-examination, that his society was an
approved society and had taken these pro-
ceedings in the name of the workman. He
also said that the workman had not refused to
take proceedings, but, though anxious to do
so, had not the necessary money. The County
Court Judge thereupon dismissed the applica-
tion on the ground that under the National
Insurance Act, 1911, s. 11, sub-s. 2, an
approved society was not entitled to bring pro-
ceedings in a workman's name unless he had
unreasonably neglected or refused to take them
himself. On appeal it was alleged on the
workman's behalf that he was not an insured
member of the approved society, but was
merely a member of it as a trade union, and it
was contended that in these circumstances the
National Insurance Act, 1911, s. 11, sub-s. 2,
had no application, and that the proceedings
were maintainable : — Held, that, on the evi-
dence as it stood, the County Court Judge was
entitled to draw the inference that the work-
man was insured in the society under the
National Insurance Act, 1911, and that, as no
case of surprise had been made, the County
Court Judge's decision must stand. Burnham
V. Hardy, 84 L. J. K.B. 714 ; [1915] W.C. & I.
Rep. 146 ; 112 L. T. 837— C.A.
Rules of Court— Ultra "Vires.]- The pro-
vision in rule 44 (3) of the Consolidated Work-
men's Compensation Rules, July, 1913, that
such an approved society shall for this purpose
" be deemed to be parties interested," is
ultra vires. Bonney v. Hoyle d Sons, Lim.,
83 L. J. K.B. 541; [1914] 2 K.B. 257; [1914]
W.C. & I. Rep. 565 ; 110 L. T. 729 ; 12 L. G. R.
358; 58 S. J. 268; 30 T. L. R. 280.
Assistance by Trade Union.] — Per Lord
Cozens-Hardy, M.R.,and Swinfen Eady, L.J. :
A workmen's trade union is entitled to assist
him in taking proceedings under the Work-
men's Compensation Act, 1906, but it may not
take proceedings in his name. Bobbey v.
Crosbie d: Co., 84 L. J. K.B. 856; [1915]
W.C. & I. Rep. 258; 112 L. T. 900— C.A.
Maintenance — Whether a Defence. 1 — If
an application under the Workmen's Compen-
sation Act, 1906, by an employee against his
employer has been " maintained " by a third
person, proof of such maintenance would be
no defence to the proceedings. Skelton v.
Baxter, 85 L. J. K.B. 181; [1915] W\C. & I.
Rep. 583; 60 S. J. 120; 32 T. L. R. 130— C.A.
4. Jurisdiction of County Court Judge.
Question as to Liability to Pay Compensa-
tion or as to Amount or Duration of Compensa-
tion.]— \ workman met with an accident in
the course of his employment which for the
time being totally incapacitated him, and his
employers paid him compensation in respect of
the accident at the maximum rate of 50 per
cent, of his average weekly earnings. The
workman applied to have a memorandum
registered of an agreement by the employers
to pay him this weekly compensation in accord-
ance with the provisions of the Workmen's
Compensation Act. 1906. The employers re-
sisted the application on the ground that they
had only agreed to pay this weekly sum so
1971
WOEKMEN'S COMPENSATION.
1972
long as their own doctor certified that the
workman was unable to follow his occupation.
Thereupon the County Court Judge held that
the compensation had not been settled by
agreement. The workman then commenced
arbitration proceedings to have the compensa-
tion settled by the Court : — Held, that no
question had arisen as to the liability to pay
compensation or the amount or duration of
the compensation to give the Court jurisdiction
to arbitrate under section 1, sub-section 3 of
the Workmen's Compensation Act, 1906.
Payne v. Fortescue, 81 L. J. K.B. 1191;
[1912] 3 K.B. 316 ; 107 L. T. 136 ; 57 S. J.
80; [1912] W.C. Kep. 386— C.A.
A workman who was receiving full compen-
sation for total incapacity under the Work-
men's Compensation Act, 1906, applied for the
registration of a memorandum of agreement
for payment of compensation at that rate until
ended, diminished, &c., in terms of the Act.
The genuineness of this memorandum was
objected to by the employers, on the ground
that the workman had signed a receipt bearing
that he had agreed that compensation should
be paid only while his employers were of
opinion that his incapacity continued. The
workman accordingly abandoned the applica-
tion. He then applied for arbitration to fix
the amount of compensation, to the com-
petency of which the employers objected on
the ground that, as full compensation was
being paid, there was no " question " arising
in anj' proceedings under the Act within sec-
tion 1, sub-section 3 thereof : — Held, that there
was a " question " in the sense of the Act,
and that the workman was entitled to apply
for and obtain an award of compensation.
Hunter v. Brown ,(■ Co., [1912] S. C. 996;
[1912] W.C. Rep. 318— Ct. of Sess.
The respondent having sustained injury by
accident arising out of and in the course of
his employment, resulting in total incapacity,
the appellants, his employers, admitted lia-
bility to pay compensation and tendered the
amount due (as to which there was no dispute)
subject to the appellant signing a receipt
therefor which contained the following term :
" At the first or any subsequent payment
liability is admitted only for the compensation
to date of payment. Further liability, if any,
will be determined week by week, when appli-
cation for payment is made." The respondent
refused to sign the receipt upon the ground
that he was entitled to have from the appellants
a simple and unqualified admission such as
could be recorded in a memorandum of agree-
ment, or that he was entitled to have the com-
pensation fixed bj' arbitration on the ground
that a question had arisen as to the duration
of the compensation within the meaning of
section 1, sub-section 3 of the Workmen's
Compensation Act, 1906 : — Held, that a ques-
tion as to the duration of compensation had
arisen between the respondent and the appel-
lants which the respondent was entitled to
have settled by arl)itration. Snuunerlee Iron
Co. V. Freelaiid. 82 L. J. P.C. 102: [1913]
A.C. 221; [1913] S. C. (H.L.) 8; [1913] W.C.
& I. Rep. 302: 108 L. T. 465; 57 S. J. 281;
29 T. L. R. 277— H.L. (Sc.)
Payne v. Fortescue i Sons, Lim. (81 L. J.
K.B. 1191; [1912] 3 K.B. 346; [1912] W.C.
Rep. 386), and Gourlay Brothers & Co.
{Dundee), Lim. v. Sweeney (8 Fraser, 965)
discussed. Ih.
Decision of Court of Session ([1912] S. C.
1145; [1912] W.C. Rep. 325) affirmed. Ih.
A workman met with an accident, and his
solicitors wrote to his employers on his behalf,
enquiring whether they would admit liability
to pay compensation during incapacity in
accordance with the Workmen's Compensation
Act, 1906. The employers' insurance company
replied that they had instructed the employers
to pay compensation during total incapacity,
and subsequently expressed their willingness
that an agreement to pay compensation during
total incapacity only should be recorded. The
workman claimed an admission of liability not
limited to total incapacity, and, without accept-
ing any weekly payments of compensation,
commenced proceedings for an award of com-
pensation : — Held, that a question had arisen
for arbitration within section 1, sub-section 3
of the Act, and that there was therefore juris-
diction to make an award of compensation in
favour of the workman. Payne v. Fortescue
,f Sons, Lim. (81 L. J. K.B. 1191; [1912]
3 K.B. 346; [1912] W.C. Rep. 386), dis-
tinguished. Summerlee Iron Co. v. Freeland
(82 L. J. P.C. 102; [1913] A.C. 221; [1913]
W.C. & I. Rep. 302) applied. Cooper v. Wales,
Lim., 84 L. J. K.B. 1321; [1915] 3 K.B. 210;
[1915] W.C. & I. Rep. 307 ; 113 L. T. 637 ;
59 S. J. 578; 31 T. L. R. 506— C.A.
Question of Law — Question of Fact.] — A
County Court Judge sitting as arbitrator under
the Workmen's Compensation Act, 1906, is as
absolute, or a more absolute judge of fact
than a jury at Nisi Prius, and his decision
can only be reviewed on questions of law —
per Lord Atkinson. The appellant was a
taxicab driver who, in driving a cab of the
respondents, met with an accident. The
County Court Judge found that the rela-
tion between the respondents and the appel-
lant was that of bailor and bailee, and not
that of master and servant, and dismissed the
application : — Held, that the finding of the
County Court Judge could not be disturbed.
Smith V. General Motor Cab Co., 80 L. J.
K.B. 839; [1911] A.C. 188; 105 L. T. 113;
55 S. J. 439; 27 T. L. R. 370— H.L. (E.)
Ouster of Jurisdiction.] — See Allen v.
Great Eastern Railway, ante, col. 1957.
As to Preferential Payments on Bankruptcy
or Winding-up of Company,] — See Homer v.
Gough, post, col. 2006.
5. Medical ExAmNATiON of Workman.
See also Vol. IX. 2251.
Examination by Employers' Doctor — Claim
by 'Workman to have his Own Doctor Present.]
— There is no absolute legal right under the
Workmen's Compensation Act, 1906, to require
that the medical examination by the employer's
medical man should take place in the presence
of the workman's medical man. The burden
of proving that the workman's request for the
attendance of his own doctor at the examina-
tion is reasonable lies with the workman.
1973
WOEKMEN'S COMPENSATION .
1974
Morgan v. Dixon, Lim., 81 L. J. P.C. 57;
[1912] A.C. 74; 105 L. T. 678; 56 S. J. 88;
28 T. L. R. 64; [1912] W.C. Rep. 43—
H.L. (Sc.)
Per Lord Atkinson : The question whether
there has been a refusal or not, under the
Act of 1906, by a workman to submit to
medical examination is a question of fact,
and any reasonable requirement by a work-
man— such as having his own medical man
present — ought not and should not by any
reasonable arbitrator be held to amount to a
refusal to submit to examination. lb.
Refusal by Workman — Suspension of Pro-
ceedings.]— -A workman was severely injured
by an accident arising in the course of his
employment. His employers admitted liability
and paid him the weekly compensation to
which he would have been entitled under the
Workmen's Compensation Act, 1906, but by
arrangement with him, and not under the Act.
He was attended by the employers" doctors.
At the end of three years upon their doctors'
advice the employers stopped payment of the
compensation. The workman then commenced
proceedings under the Act claiming compensa-
tion from the time when the payment was
stopped. Thereupon the employers required
the workman to submit himself to medical
examination at their expense, but the work-
man refused : — Held, that the proceedings
must be suspended until the examination had
taken place as provided by Schedule I. clause (41
of the Act. Major v. South Kirkhy, Feather-
stone, and Hemsworth Collieries. 82 L. J. K.B.
452; [1913] 2 K.B. 145; [1913] W.C. & I.
Rep. 305; 108 L. T. 534; 57 S. J. 244;
29 T. L. R. 223— C.A.
Under Schedule I. clause (4) , which pro-
vides for medical examinations between the
accident and the award, the employer is not
restricted to one examination only, immediately
after notice. 76.
Schedule I. clause (14) applies to medical
examinations of workmen, whether they are
receiving or entitled to receive weekly pay-
ments under the Act. 7b.
The regulations of the Secretary of State
dated June 28, 1907, as to times and intervals
at which examinations may be required are
made applicable by Schedule I. clause (15) to
both clauses (4) and (14) of Schedule I. 7b.
Paragraph 4 of Schedule I. of the Work-
men's Compensation Act, 1906, which provides
that where a workman has given notice of an
accident he shall, if so required by the
employer, submit himself for examination by
a duly qualified medical practitioner, and, if he
refuses to submit to such examination, that
his right to take or prosecute any proceeding
under the Act in relation to compensation shall
be suspended until such examination has taken
place, does not contemplate only one such
examination, and after the workman has been
examined once the County Court Judge has
power to suspend the proceedings if he refuses
to submit to a further medical examination
when such examination appears to be reason-
able. Paragraph 14 of the schedule applies
only to the case of a workman who is actually
at the time receiving weekly payments under
the Act. Smith v. Davis d Sons, Lim.,
84 L. J. K.B. 1125; [1915] A.C. 528; [1915]
W.C. & I. Rep. 299; 113 L. T. 250; 59 S. J.
397; 31 T. L. R. 356— H.L. (E.)
Decision of the Court of Appeal ([1914]
W.C. & I. Rep. 71) aflarmed. 7b.
Award of Compensation — Workman Enlists
and Sent Abroad — Application to Suspend Com-
sation — Obstructing Medical Examination."! —
A workman, who had met with an accident in
the course of his employment and was in
receipt of compensation for partial incapacity
under an award, enlisted in a Territorial
regiment. The employers subsequently applied
for a review and termination of the compen-
sation, but, on their writing to the workman's
solicitors requiring him to be medically ex-
amined, they were told that he was in India
with his regiment. Thereupon they applied
to suspend the payments of compensation, on
the grounds — first, that by going abroad the
workman had obstructed his being medically
examined; and secondly, that he had ceased
to reside in the United Kingdom : — Held, that
the workman had in no way obstructed the
medical examination so as to entitle the em-
ployers to a suspension of the compensation
under Schedule I. clause 14 of the Workmen's
Compensation Act, 1906, and that he had not
ceased to reside in the United Kingdom within
the meaning of Schedule I. clause 18 of the
Act. Harrison, Lim. v. Doicling , 84 L. J.
K.B. 1412; [1915] 3 K.B. 218; [1915] W.C.
& I. Rep. 351; 113 L. T. 622; 59 S. J. 612;
31 T. L. R. 486— C.A.
6. Medic.\l Assessor.
Appointment of Medical Referee as Medical
Assessor.] — A medical referee appointed under
the Act having given a certificate that a work-
man was suffering from a scheduled industrial
disease at a certain date, with the addition
that he had completely recovered at the date
of the certificate, the workman commenced pro-
ceedings which raised the same issue as that
on which the opinion had been given : — Held,
that the County Court Judge was not entitled
to appoint as his assessor the same doctor who
had already given his opinion on the question.
Wallis V. Soutter d- Co., [1915] W.C. & I.
Rep. 113; 59 S. J. 285— C.A.
Medical Witnesses.] — When an arbitrator is
sitting with a medical assessor, he has a right
to act upon the advice of the assessor on
matters of medical opinion and medical infer-
ence, even if there is not any corresponding
opinion on the part of the medical witnesses.
Woods V. Wilson, Sons d Co., 84 L. J. K.B.
1067 ; [1915] W.C. & I. Rep. 285 ; 113 L. T.
243; 59 S. J. 348; 31 T. L. R. 273— H.L. (E.)
7. Evidence.
Duty of Judge to Take Notes of Evidence.]
— It is the duty of a County Court Judge,
under rule 36 of the Workmen's Compensation
Rules, to make a proper note of the evidence
given at the hearing of any arbitration pro-
ceedings under the Workmen's Compensation
Act, 1906. Wright v. Sneyd Collieries,
84 L. J. K.B. 1332 ; [1915] W.C. & I. Rep.
354; 113 L. T. 633— C.A.
1975
WOEKMEN'S COMPENSATION.
1976
Personal Knowledge of Arbitrator.] —
Employers, who had been paying compensa-
tion to an injured workman, discontinued the
compensation on the ground that the work-
man's total incapacity had ceased. The ques-
tion of his capacity was thereupon referred
to a medical referee, who reported that the
workman was fit to do light work, and specified
certain kinds of such work. Thereafter the
workman presented an application for an
award of compensation as for total incapacity,
and in support thereof averred that he had
applied in the district for. and had been unable
to obtain, such work as was indicated by the
medical referee, and he enumerated the various
places at which he had applied for that work.
The arbitrator, without allowing a proof, dis-
missed the application as irrelevant, holding
upon his knowledge of the district that there
was a market for such work as was indicated
by the referee, and that the workman's efforts
to obtain work had not been sufficient to test
the market : — Held, that the arbitrator was
not entitled to dismiss the application as
irrelevant, but ought to have allowed the
workman a proof of his averments, although he
would be allowed to use his own knowledge of
the district in considering the evidence adduced.
Dyer v. Wilsons d Clyde Coal Co., [1915]
S. C. 199; [1915] W.C. & I. Eep. 433— Ct.
of Sess.
Balancing Probabilities.] — Although
when acting as arbitrator in cases arising
under the Workmen's Compensation Act, 1906,
a County Court Judge may, and in many cases
ought, to proceed without any direct evidence,
and although he may, and in many cases
ought, to proceed upon indirect evidence which
justifies his drawing an inference, yet there is
nothing to justify him in doing that which is
merely a balancing of probabilities. Parry (or
Perry) v. Ocean Coal Co.. 106 L. T. 713:
[1912] W.C. Rep. 212— C.A.
Evidence on Commission.] ^In an arbitra-
tion for determining the compensation payable
to a workman for an accident under the
Workmen's Compensation Act, 1906, the
County Court Judge has no power to order the
evidence of the applicant to be taken on com-
mission before an examiner or to delegate the
taking of evidence to any person other than
the arbitrator. Principle of Sutton v. Great
Northern Railway (79 L. J. K.B. 81; [1909]
2 K.B. 791) applied. Taylor v. Cripps,
83 L. J. K.B. 1538; [1914] 3 K.B. 989;
[1914] W.C. & I. Eep. 515; 111 L. T. 780;
30 T. L. R. 616— C.A.
Appeal.] — An appeal from an order of a
County Court Judge that evidence should be
taken on commission lies to the Court of
Appeal and not to a Divisional Court. 76.
Statements as to Cause of Accident —
Statement by Deceased Workman to Doctor —
Admissibility. 1 — A doctor may not give in
evidence statements made to him by a deceased
workman as to the cause of his injuries some
days after an accident. Wright v. Kerrigan
([i911] 2 Ir. R. 301) discussed. Amys v.
Bartoyj, 81 L. J. K.B. 65: [1912] 1 K.B. 40;
105 L. T. 619; 28 T. L. R. 29; [1912] W.C.
Rep. 22— C.A.
The deceased man's wife said that the
deceased returned home and stated that he had
been out that evening and collapsed while out
and got wet through : — Held, that this state-
ment was not admissible in evidence. Beare
V. Garrod, [1915] W.C. & I. Rep. 438— C.A.
Statement by Deceased as to Cause of Injury
— Admission — Statement against Pecuniary
Interest.] — In proceedings by the dependants
of a deceased workman to recover compensa-
tion in respect of an accident alleged to have
caused his death, statements by the workman
to an officer of his employers as to the cause of
his injury are not admissible in evidence either
as an admission or as statements made against
pecuniary interest. Tucker v. Oldbury Urban
Council, 81 L. J. K.B. 668; [1912] 2 K.B.
317; 106 L. T. 669; [1912] W.C. Rep. 238—
C.A.
A workman in the employment of an
undertaker and funeral contractor had in the
course of his ordinary duty to lift coffins in
and out of vans. One morning he went to his
work without any marks of physical injury,
and he returned suffering from hurts to his
chest, side, and leg, the marks of which were
visible, and seen by his wife and medical
attendant. They were caused by abrasions as
if something had knocked against him. He
told the doctor that they were the result of an
accident, and the doctor stated to the employer
that the injured man said that he met with an
accident by the moving of a coffin, that he
was very bad, and would probably die of his
injuries. The employer's reply (according to
the doctor's evidence) was merely that he was
insured. The injured man died of pneumonia
supervening on traumatic pleurisy caused by
these hurts, and the arbitrator having so
found, and also found that the accident arose
out of and in the course of the employment, —
Held, that the statements of the deceased
workman were properly admitted in evidence,
and, following Mitchell v. Glamorgan
(23 T. L. R. 588), that there was sufficient
evidence to justify the findings of the arbitra-
tor. Wriaht v. Kerrigan, [1911] 2 Ir. R. 301
—C.A.
Award Based on Medical Referee's Report —
Defective Vision.] — A workman who was em-
ployed as a ship's painter and scaler sustained
injury to his left eye, caused by a blow from
a rivet. Accordingly he claimed compensation
from his employers under the Workmen's Com-
pensation Act, 1906. The County Court Judge
having heard medical evidence on both sides
as to the workman's physical state was not
satisfied therewith, and sent the case to the
medical referee to report whether the work-
man was or was not still incapacitated by
reason of the condition of his left eye from
doing the work of a ship's painter. The report
of the medical referee was that there was
nothing abnormal in the eye to account for the
great defect of vision complained of ; that he
was inclined to think that the workman had
better vision than he would own to ; that if
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WORKMEN'S COMPENSATION.
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the workman's statements were true, the case
must be regarded as one of hysterical blindness
or his left eye must always have been a
defective one ; but that if his sight was as he
said it was, he was not fit to do his work as
a ship's painter, but he could do ordinary
painting when he had not to stand on a
scaffolding. On this report the County Court
Judge found as a fact that the workman was
by reason of the accident incapacitated from
doing the work of a ship's painter, and that
he would have great difificulty in obtaining any
employment, and gave the workman compensa-
tion for total incapacity for work on the footing
of his average weekly earnings being 45s. The
employers appealed : — Held, that there was
sufficient evidence upon which the County
Court Judge might arrive at the view at which
he did; that, assuming that the defective
vision in the workman's left eye was due to
the accident thereto and he was not able to do
work involving painting on a scaffolding or on
a ladder, it was a case in which the workman
was an " odd lot man " ; and that therefore the
decision in Proctor v. Robinson (80 L. J. K.B.
641; [1911] 1 K.B. 1004) applied, and not
that in Cardiff Corporation v. Hall (80 L. J.
K.B. 644; [1911] 1 K.B. 1009). James v.
Mordey, Carney & Co., [1913] W.C. & I. Eep.
670; 109 L. T. 377— C. A.
Refusal to Undergo Operation — Unreason-
able Refusal — Medical Evidence — Probability
of Cure.] — A workman applied for compensa-
tion on the ground of incapacity resulting from
an accident in respect of which he was
admittedly entitled to compensation, which had
been paid for nine months. The employer
then alleged that the incapacity was the result,
not of the accident, but of the workman's
refusal to undergo an operation which was
such as a reasonable man would submit to.
The medical evidence was to the effect that the
operation would not be attended with excessive
pain or risk, and would in all probability
restore the workman's capacity to work at his
trade. The workman refused on the ground
that he might risk his capacity to do other
work. The County Court Judge held that his
refusal was reasonable, and awarded compfn-
sation : — Held, that there was no evidence to
support the finding of the County Court Judge,
and that the workman was not entitled to
further compensation. W arncken v. Moreland
(78 L. J. K.B. 332; [1909] 1 K.B. 184)
followed. Walsh v. Lock d Co., [1914] W.C.
& I. Rep. 95 ; 110 L. T. 452— C. A.
Whether Incapacity Results from Injury.]
— Circumstances in which held that a work-
woman's present incapacity was due to an
accident to her hand, and could not be attri-
buted to unreasonable conduct on her part in
refusing to undergo an operation, which might
have restored or improved the capacity of the
hand, but which her own doctor advised her
not to undergo. Grade v. Clyde Spinning Co.,
[1915] S. C. 906— Ct. of Sess.
Per the Lord President : Save in very special
circumstances the proximate cause of incapacity
never can be the unreasonable refusal of a
workman to undergo an operation if his own
medical adviser advises him against under-
going that operation. lb.
Costs of Expert Witness — Doctor's Fee —
Qualifying to Give Evidence — Examination of
Workman before Application for Arbitration.]
— A workman injured in his employment in
April, 1913, received compensation from his
employers until September, 1913, when it was
stopped. On October 20, 1913, the workman's
solicitors wrote asking the employers for suit-
able work and compensation. On October 25,
1913, the workman was examined by a doctor
for the employers. On December 13, 1913, the
workman requested arbitration. The County
Court Judge made his award in favour of
the employers, and ordered them to be paid
a qualifying fee for the doctor who examined
the workman, who also gave evidence at the
hearing : — Held, that the County Court Judge,
having decided that the examination was made
for the purpose of qualifying to give evidence,
had jurisdiction to allow the qualifying fee,
although the examination took place before
the request for arbitration was made. Jones
V. Davies d Sons, Lim., 83 L. J. K.B. 1531;
[1914] 3 K.B. 549; [1914] W.C. & I. Eep.
509; 111 L. T. 769— C. A.
Medical Witnesses Called by Employers
— Costs — Disallowance — Judicial Discretion.]
— Where medical witnesses in a case arising
under the Workmen's Compensation Act, 1906,
gave evidence which was directly material and
was believed, it was held that, having regard
to the reasons assigned by the County Court
Judge, he did not exercise his discretion
judicially in disallowing the costs of those
witnesses. Finlayson v. " Clinton " (Owners),
[1914] W.C. & I. Rep. 430; 111 L. T. 915
— C.A.
8. Medical Referee.
Ambiguous Report from Medical Referee.] —
The report of a medical referee, to whom a
remit has been made under the Workmen's
Compensation Act, 1906, Sched. I. clause 15,
may competently be sent back to him by the
arbitrator for explanation if it is ambiguous or
unintelligible. Kennedy v. Dixon, [1913] S. C.
659; [1913] W.C. & I. Rep. 333— Ct. of Sess.
Conclusiveness of Medical Referee's Report.]
— In an arbitration under the Workmen's
Compensation Act, 1906, the arbitrator, in
consequence of a conflict of medical evidence,
remitted to a medical referee under para-
graph 15 of Schedule II. to examine the
evidence and to report whether a deceased
workman was injured by rupture of the heart
caused by the work and died therefrom, or
whether he died from heart disease. The
medical referee reported that the workman
"died from disease of the heart." The arbi-
trator thereafter found that the workman had
died from a rupture of the heart caused by
the strain resulting from the work in which
he was engaged, and awarded compensation :
-Held, first, that the arbitrator was not
hound to accept the medical reftree's report
as conclusive of the question which he, as
arbitrator, had to decide; and secondly, that
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WOKKMEN'S COMPENSATION.
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as there was some evidence to support his
decision it could not be interfered with.
Jackson v. Scotstoini Estate Co., [1911] S. C.
564— Ct. of Sess.
In an application for review of compensation
paid to a miner who had received an injury
resulting in the loss of an eye, a remit was
made to a medical referee under paragraph 15
of the First Schedule to the Workmen's Com-
pensation Act, 1906. The referee reported
that the miner was "as fit as any other one-
eyed man to resume his work under ground."
The miner applied to have the question of
his earning capacity tried, but the arbitrator
refused the application and ended the com-
pensation, on the ground that the referee's
report was final, and that it meant that the
miner's incapacity had ceased : — Held, that
the report, though final as to the miner's
physical condition, was not final as to his
earning capacity, and the case was remitted
to the arbitrator to hear evidence on this point.
Arnott V. Fife Coal Co., [1911] S. C. 1029—
Ct. of Sess.
By agreement between a coal miner, who
had received an injury to his thumb and was
receiving compensation, and his employers, the
question of the workman's capacity to resume
his former employment was referred to a
medical referee under paragraph 15 of Sche-
dule I. to the Workmen's Compensation Act,
1906. The medical referee reported that the
workman was " quite fit to resume his ordinary
employment as a coal miner, having recovered
from " the injury. The employers thereupon
applied to have the compensation ended, when
the workman lodged answers in which he
averred that having returned to work he had
ascertained " that his earning ability has been
considerably reduced from the effects of his
injury " and maintained that he was still
entitled to partial compensation. The arbi-
trator having ended the compensation the
workman appealed and asked leave to lead
evidence in support of his averments : — Held,
dismissing the appeal, that as the medical
referee's report was final and was from its
terms conclusive as to the question raised by
the workman's averments, proof of these
averments was inadmissible. Ball v. Hunt
(81 L. J. K.B. 782; [1912] A.C. 496) and
Macdonald (or Duris) v. Wilsons and Clyde
Coal Co. (81 L. J. P.C. 188; [1912] A.C. 513)
distinguished ; and observed that where a
medical referee's report is not from its terms
conclusive a proof may be admissible. Gray
V. Shotts Iron Co., [1912] S. C. 1267; [1912]
W.C. Rep. 3.59— Ct. of Sess.
Whether a proof might not have been admis-
sible if the workman had averred that owing
to the consequences of the accident he had been
unable to obtain employment, qucere. lb.
Proof as to Wage-earning Capacity.] — In
an application to end the compensation payable
to a miner who had received an injury to his
eye, the question of his condition and his fit-
ness for employment was referred to a medical
referee under paragraph 15 of Schedule I. to
the Workmen's Compensation Act, 1906. The
medical referee reported that " his condition
is such that I consider he ought now to be fit
to resume his ordinary work as a miner below
j ground." The miner having lodged answers
in which he averred that he bad not yet
i recovered from the effects of the accident and
that his earning capacity was not restored, the
Court allowed a proof as to the miner's wage-
earning capacity, but excluded all evidence
with regard to his physical condition and
physical fitness for his ordinary work as a
miner below ground, as on those points the
medical referee's certificate was final. Cruden
V. Wemyss Coal Co., [1913] S. C. 634;
[1913] W.C. & I. Rep. 188— Ct. of Sess.
Competency of Remit to Medical Referee —
Finding by Referee Outside Matter Remitted
to him,] — A woman was incapacitated by an
accident which caused injuries to her hand,
and she refused, on the advice of her own
doctor, to undergo a minor operation involving
the use of anaesthetics, which was likely to
diminish the mcapacity of her hand. After
evidence, an arbitrator remitted to a medical
referee for a report as to whether the woman
would be exposed to any exceptional risk in
the use of anaesthetics, as this was a matter
which had not been established by the evi-
dence. The referee reported that the risk was
not more than ordinary ; but he added that he
considered that the operation would be of little
benefit, and that the injury to the hand was
permanent. The arbitrator refused to take the
latter opinion into consideration, as it went
beyond the terms of the remit to the referee.
On appeal it was maintained that a remit to
a medical referee on a matter as to which
no evidence had been given was incompetent,
but that if the arbitrator regarded any part
of the referee's report he must regard the
whole of it : — Held, first, that the remit to the
medical referee had been competently made ;
and secondly, that the arbitrator was not
entitled to disregard any part of the referee's
report. Grade v. Clyde Spinning Co., [1915]
S. C. 906— Ct. of Sess.
Report of Medical Referee — Recovery of
Wage-earning Capacity — Termination of Com-
pensation— Suspensory Award.] — A workman
lost the sight of one eye by an accident arising
out of and in the course of his employment,
and received compensation from his employers.
Upon a remit by consent to a medical referee,
the referee reported that the workman had
recovered from his incapacity, and was fit for
work ; and it was also in evidence that he had
been in fact employed at his former work at
his old rate of wages : — Held, that there was
evidence on which the arbitrator was entitled
to terminate the compensation without making
a suspensory award. Jones v. Anderson,
84 L. J. P.C. 47; [1915] W.C. & I. Rep. 151:
112 L. T. 225; 59 S. J. 159; 31 T. L. R. 76
— H.L. (Sc.)
Industrial Disease — Certificates of Certifying
Surgeon and Medical Referee — Claimant Certi-
fied to be Suffering from Scheduled Disease —
Finding that Disease not Due to Employment
— Claimant's Right to Prove Contrary.]— A
miner claiming compensation under the Work-
men's Compensation Act, 1906, in respect of
an industrial disease, obtained from a certify-
ing surgeon a certificate that he was suffering
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WORKMEN'S CO-MPEXSATIOX.
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from, and disabled by, " nystagmus," one of
the scheduled diseases applicable to the employ-
ment of " mining." A medical referee, to
whom the matter was referred on the applica-
tion of the employers, found that the claimant
suffered from nystagmus, but that it was not
miner's nystagmus, but one of the other forms
of that disease. The arbitrator dismissed the
claim on the ground that, in view of the
referee's finding, the claimant had not obtained
the certificate, required by section 8 of the Act,
that he was suffering from a scheduled disease :
—Held, first, that the claimant had obtained
the necessary certificate that he was suffering
from a scheduled disease; secondly, that the
decision of the medical referee was not final
as to whether that disease was or was not due
to the claimant's employment; and thirdly,
that the effect of the finding that it was not
due to his employment was to displace the
presumption in his favour, and to throw upon
him the onus of proving affirmatively that it
was. Held, therefore, that the case should
accordingly be remitted to the arbitrator to
take evidence upon this. M' Ginn v. Udston
Coal Co., [1912] S. C. 668; [1912] W.C. Kep.
134— Ct. of Sess.
It is competent for a medical referee, while
affirming the certificate of a certifying surgeon
that a claimant is suffering from a scheduled
disease, to vary that certificate by finding that
the disease is or is not due to his employment.
Date of Disablement Rendering Certi-
ficate Useless to Workman — Workman
"aggrieved" — Right to Appeal to Medical
Referee.] — A miner left his employment with
a coal company on September 1, 1911, since
which date he had done no work, and went
into hospital for colitis. At this time and for
two years previously he had been suffering
from his eyes. On November 27, 1912, having
left the hospital, he went to a certifying
surgeon, who gave him a certificate that he
was suffering from miner's nystagmus, but did
not fix the date of the commencement of the
disablement. The surgeon subsequently gave
an amended certificate fixing the date as
November 27, 1912. This certificate was use-
less to the workman as it fixed the date more
than twelve months after his leaving the
employment of the company. He appealed
from the certifying surgeon to the medical
referee, who fixed the date as September 1,
1911. The company contended there could be
no appeal by a workman from the certifying
surgeon to the medical referee except from a
refusal to give a certificate, and that even if
he could appeal from a given certificate the
medical referee could not fix the date : — Held,
that an appeal lay from the certifying surgeon
to the medical referee under section 8, sub-
section 1 (i.), (f). and that the medical referee
could fix the date of disablement under sec-
tion 8, sub-section 4 (a) of the Workmen's
Compensation Act, 1906. BiThs v. Stafford
Coal and Iron Co.. 82 L. J. K.B. 1334; [1913]
3 K.B. 686: [1913] W.C. & I. Rep. 755;
109 L. T. 290; 57 S. J. 729— C. A.
Certificate by Certifying Surgeon Referred
to Medical Referee — Scope of Medical Referee's
Decision.] — Under section 8, sub-section 1 of
the Workmen's Compensation Act, 1906, a
medical referee can only decide whether a
certifying surgeon's certificate was rightly
granted. Accordingly, where a medical referee
upheld 'the granting of a certificate of disable-
ment, an addendum by him to the effect that,
at the date of his (the medical referee's)
examination the workman was again able to
work, was incompetent and fell to be treated
pro 7ion scripto. Garrett v. Waddell, [1911]
S. C. 1168— Ct. of Sess.
When a certificate by a certifying surgeon
as to whether a workman is suffering from an
industrial disease is objected to, and is re-
ferred under section 8, sub-section 1 (/) of the
Workmen's Compensation Act, 1906, to a
medical referee, it is the duty of the medical
referee to decide categorically whether the
certificate has been rightly granted or not.
Therefore, where a medical referee pro-
nounced a decision " subject to " a note, the
terms of the note being contradictory of what
purported to be the effect of the decision, the
matter was remitted to him to complete the
reference by giving a categorical answer.
Winters v. Addie d' Sons' Collieries, Lim.,
[1911] S. C. 1174— Ct. of Sess.
Death Regulations made by the Secretary of
State and the Treasury.] — On an arbitration
under the Workmen's Compensation Act, 1906.
the arbitrator can, under Schedule II. (15),
submit to a medical referee for a report any
matter which seems material to any question
arising in the arbitration, notwithstanding
that tiie workman is dead and that the regula-
tions on the subject made by the Secretary of
State and the Treasury only contemplate the
case of a living workman. Carolan v.
Harrington, 80 L. J. K.B. 1153; [1911]
2 K.B. 733; 105 L. T. 271; 27 T. L. R. 486
— C.A.
Medical Referee as Medical Assessor.] —
See Wallis v. Sautter ,f Co., ante, col. 1974.
9. Assessing Compexsation.
a. By Agreement: Recording of Memorandum.
See also Vol. IX. 2234.
"Party interested" — Approved Society.] —
Whether an approved society under the
National Insurance Act, 1911. is a "party
interested " who, in terms of the Workmen's
Compensation Act, 1906, Schedule 11. (9), may
apply for registration of a memorandum of an
agreement regarding the payment of com-
pensation to one of its members, qucvre.
Baird d- Co. v. Ancient Order of Foresters,
[1914] S. C. 965 ; [1914] W\C. & I. Rep. 534
— Ct. of Sess.
Workman Insured in Approved Society —
Locus Standi to Object to Registration —
"Parties interested." — WIumc an agreement
is made as to the redemption by a lump sum
of a weekly payment to a workman who is an
insured person within the meaning of the
National Insurance Act, 1911, the approved
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WOKKMEN'S COMPENSATION.
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society concerned in the administration of any
benefit to which such insux'ed person is entitled
under that Act are not " parties interested '
for the purpose of clause 9 of the Second
Schedule to the Workmen's Compensation Act,
1906, and have no locus standi to appear before
the County Court Judge and object to the
recording of a memorandum of such agreement.
Bonney v. Hoyle <(■ Sons. Lim., 83 L. J.
K.B. 541; [1914] 2 K.B. 257: [1914]
W.C. & I. Rep. 565; 110 L. T. 729;
12 L. G. E. 358; 58 S. J. 268; 30 T. L. R.
280— C.A.
Implied Agreement — Registration.] — Em-
ployers intimated their intention to pay, and
did in fact pay, a weekly sum to an injured
workman upon the production by him of a
fortnightly certificate from the employers'
doctor that the workman was still incapable
of returning to work : — Held, that there was
no evidence of an implied agreement to
pay this sum during incapacity within
Schedule II. (9) of the ^Yorkmen's Com-
pensation Act, 1906. Phillips v. Vickers, Son
<f- Maxim, 81 L. J. K.B. 128; [1912] 1 K.B.
16; 105 L. T. 564; [1912] W.C. Rep. 71— C.A
The mere payment by an employer of a
weekly payment by way of compensation to a
workman who has been injured by accident
arising out of and in the course of his employ-
ment, within the meaning of section 1 of the
Workmen's Compensation Act, 1906, does not
suffice to establish that an agreement so to do
has been come to, a memorandum of which
is capable of being recorded pursuant to
section 9 of the Second Schedule to the Act.
Hartshoryie v. Coppice Colliery Co., 106 L. T.
609; [1912] W.C. Rep. 2.55— C.A.
A workman having been injured by " acci-
dent arising out of and in the course of " his
employment within the meaning of section 1,
sub-section 1 of the Workmen's Compensation
Act, 1906, his employers paid a weekly sum
representing half his wages to the workman
for a time and then discontinued the payment
on the advice of their doctor that the workman
had recovered from the effects of the accident.
The workman subsequently applied to the
Registrar of the County Court to record a
memorandum of an alleged agreement under
section 9 of the second schedule to the Act.
The workman sought by recording the memo-
randum of the alleged agreement to impose
upon the employers the burden of shewing
that circumstances had been changed so that
they would be entitled to claim a review of
the agreement, which if recorded would have
the effect of an award. The employers, how-
ever, contended that no such agreement as
was alleged had in fact ever been entered into ;
that the County Court Judge could not make
an agreement between the parties ; but that the
Court could only record a memorandum of an
agreement which had in fact been made :■ —
Held, that an agreement within the Act need
not be in writing ; that it might be inferred
and implied by reason of the conduct of the
parties and all the circumstances ; but that
there was no evidence in the present case to
support the view that any such document as
was sought to be recorded was in fact entered
into ; and that the learned County Court Judge
had no jurisdiction to order an agreement to be
recorded which was not really an agreement
entered into between the parties. Phillips v.
Vickers. Son d Maxim (81 L. J. K.B. 123;
[1912] 1 K.B. 15) and Hartshorne v. Coppice
Colliery Co. ([1912] W.C. Rep. 255 ; 106 L. T.
Rep. 609) applied. Godbold v. London County
Council, 111 L. T. 691— C.A.
The applicant was a plasterer's labourer in
the employment of the respondents, and met
with an accident which totally incapacitated
him. The respondents paid him compensation
from the date of the accident at the rate of
half his average weekly earnings, and on each
payment he gave a receipt for " compensation
to date under the Workmen's Compensation
Act, 1906, for personal injury by accident
sustained " by him. The applicant applied for
registration of an agreement by the respon-
dents to pay him compensation at the rate of
50 per cent, of his average weekly earnings
until the same was endedj diminished, re-
deemed, or suspended, in terms of the Act.
The only evidence of an agreement consisted
in the receipts. The County Court Judge dis-
missed the application on the ground that he
could not infer that an agreement in the form
proposed had ever been arrived at : — Held,
on appeal, that as the receipts were no evidence
of such an agreement, the Judge's decision
was right. Madden V. GuesVs Executors,
[1915] W.C. & I. Rep. 589; 32 T. L. R. 74—
C.A.
In an application to an arbitrator for an
award of compensation under the Workmen's
Compensation Act, 1906, the pursuer averred
that " The defenders admitted liability to
pursuer in respect of said accident and the
said injuries sustained by him under said
Workmen's Compensation Act, 1906, and paid
pursuer compensation at the rate of IO5. per
week up to and including payment for the
week ending December 9, 1914, since which
date defenders refuse to continue payment."
The defenders objected to the competency of
the proceedings on the ground that these aver-
ments disclosed that the questions between the
parties had been settled by agreement : —
Held, that the averments did not shew an
agreement within the meaning of section 1.
sub-section 3 of the Act, and accordingly that
the application was competent. Kane v. Stein
d- Co., Lim., [1915] S. C. 863— Ct. of Sess.
Compensation Agreed — Payment into Court
by Agents other than Solicitors.] — Where an
amount of compensation has been agreed it
can be paid into Court by other agents of the
employers than their solicitors, and the prcecipe
sent with the money may be signed by such
agents — for example, the Shipping Federation
Thompson d Co. v. t.d-Taylor, 57 S. J. 479
— Bailhache, J.
Terms of Memorandum Differing from Terms
of Agreement.] — Where an agreement in
writing has been entered into between an
employer and a workman with regard to com-
pensation, it is the duty of the Sheriff (if
objection is taken) to refuse to record a memo-
randum which is not in the precise terms of
the written agreement. It is not part of his
duty to construe the written agreement and
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WORKMEN'S COMPENSATION.
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then to determine whether the memorandum
gives effect to it as so construed. M' Lean v.
Allan Line Steamship Co., [1912] S. C. 256;
[1912] W.C. Rep. 37— Ct. of Sess.
A workman, who had been totally incapa-
citated by accident, received weekly payments
of 10s. from his employers, for which he
granted receipts bearing that the payments
were accepted " as the weekly compensation
payable during the period of total incapacity
for work as the result of the accident." He
subsequently applied for warrant to record a
memorandum which bore that the parties had
agreed " that compensation be paid by " the
employers to the workman " in terms of the
Workmen's Compensation Act, at the rate
of 10s. per week from " the date of the
accident : — Held, that the memorandum was
not genuine, in respect of the omission of the
qualification " during the period of total in-
capacity." Pryde v. Moore d- Co., [1913]
S. C. ■'457; [1913] W.C. & I. Rep. 100—
Ct. of Sess.
An injured workman and his employers ver-
bally agreed that compensation should be paid
to the former at the rate of 15s. Id. per week.
The worknian thereafter signed a number of
receipts, each of which bore to be for "weekly
compensation to date under the Workmen's
Compensation Act, 1906. under which I claim
for personal injury by accident sustained by
me." Thereafter the employers objected to
the recording of a memorandum which bore
that the agreement was to pay compensation
at the foresaid rate " until the same is ended,
diminished, redeemed, or suspended in terms
of " the Act, on the ground that the memo-
randum was not genuine because it differed
in terms from the agreement, which contained
no obligation as to future payments : — Held,
the arbitrator who had granted warrant to
record the memorandum was right in so doing
in respect that the agreement was an agree-
ment to pay compensation in terms of the Act
and that this memorandum merely set forth
those terms. Pearson v. Babcock if Wilcox,
[1913] S. C. 959; [1913] W.C. & I. Rep. 430
— Ct. of Sess.
A workman, who had been incapacitated
as the result of an accident, received payments
of compensation from his employers for more
than a year, and granted receipts for these
payments, whicli bore that they were "accepted
as the amounts payable under the Work-
men's Compensation Act, 1906." The pay-
ments were all at the rate of 10s. per week,
which was the rate to which the workman was
entitled as for total incapacity. On the em-
ployers ceasing to make further payments the
workman sought to record a memorandum,
which bore that " the liability to pay work-
men's compensation during the claimant's
incapacity for work at the rate of 10s. per
week was admitted by the respondents." The
employers objected to the recording of this
memorandum, on the ground that the agree-
ment, as evidenced by the receipts, was to pay
compensation during total incapacity only, and
accordingly that the memorandum was not in
terms of the agreement : — Held, that thi->
agreement was not limited to the period of
total incapacity, and accordingly that the
memorandum was in terms of the agreement,
and fell to be recorded. Scott v. Sanquhar
and Kirkconnel Collieries, [1915] S. C. 520;
[1915] W.C. & I. Eep. 196— Ct. of Sess.
Discretion as to Recording.] — An injured
workman, who had entered into an agreement
with his employers with regard to payment of
compensation, sought to record a memorandum
of that agreement. The employers objected to
the recording of the agreement on the ground
(which was admitted) that the workman had
returned to w"ork and was earning the same
wages as before the accident, and the Sheriff
refused to record : — Held, that the memoran-
dum being a genuine record of the agreement,
the Sheriff had no discretion to refuse to record
it, but should have recorded it, attaching such
conditions as he considered just in the circum-
stances. Scott V. Sanquhar and Kirkconnel
Collieries, [1915] S. C. 520; [1915] W.C. & I.
Rep. 196— Ct. of Sess.
The Second Schedule, clause 9 (d) of the
Workmen's Compensation Act, 1906, provides
that a Sheriff-Clerk [Registrar] to whom a
memorandum of agreement for the redemption
of a claim for compensation by payment of a
lump sum is brought, may refuse to record it
if, " on any information which he considers
sufficient," it appears to him that by reason
of the inadequacy of the sum or the means by
which the agreement was obtained, the agree-
ment should not be recorded : — Held, that the
Sheriff-Clerk is not bound in every case ex
propria motu to enquire into these matters
before proceeding to record. M' Guire v.
Paterson ,(■ Co.. [1913] S. C. 400; [1913]
W.C. & I. Rep. 107— Ct. of Sess.
Observations on the duties of the Sheriff-
Clerk in such a case. /{).
Objection not a " workman " — Estoppel.]
— The master of a sailing barge was in-
jured by accident in his employment. He
applied under Schedule II. paragraph 9 of
the W^orkmen's Compensation Act, 1906, to
record a memorandum of an agreement
made between himself as a " workman "
and the barge owners, under which he
was to receive 11. a week during total in-
capacity. The barge owners objected to the
recording of the agreement solely on the ground
that the master was not a " workman " within
the Act. They did not dispute the agree-
ment itself or the continuance of total dis-
ability, or allege fraud or mutual mistake. The
County Court Judge found that the master was
not a " workman," and refused to record the
memorandum. On appeal, — Held, that, as it
had been settled by the agreement that the
master was a " workman " within the Act, the
County Court Judge had no jurisdiction, by
reason of section 1, sub-section 3 of the Act.
to consider that question, and that the agree-
ment must be recorded. Goodsell v. " Llorjds"
(Owners), 83 L. J. K.B. 1733; [1914] 3 K.B.
1001; [1914] W.C. k I. Rep. 585; 111 L. T.
784; 30 T. L. R. 622 -C. A.
Genuineness of Agreement — Adequacy of
Amount.] — Schedule II. clause 9 of the Work-
men's Compensation Act, 1906, provides that
when the amount of compensation under the
63
1987
\YORKMEX-S COMPENSATIOX,
1988
Act has been ascertained or any other matter
•decided under the Act by agreement, a
memorandum thereof shall be sent by any
person interested to the Registrar of the County
Court, who shall, subject to Rules of Court, on
being satisfied as to its genuineness, record
such memorandum in a special register with-
out fee, and thereupon the memorandum shall
for all purposes be enforceable as a County
■Court judgment. Provided that (d) where it
appears to the Registrar, on any information
"which he considers sufficient, that an agree-
ment as to the redemption of a weekly payment
by a lump sum ought not to be registered by
reason of the inadequacy of the sum, he may
refuse to record the memorandum of the agree-
ment, and refer the matter to the Judge, who
shall, in accordance with Rules of Court, make
such order as under the circumstances he may
think just. When an agreement for redemp-
tion of a weekly payment by a lump sum has
been entered into between employer and
workman and a memorandum thereof sent by
the employer to the Registrar of the County
Court, it is prima facie his duty to record it on
being satisfied as to its genuineness ; but if
the adequacy of the amount of redemption is
called in question, it is his duty to enquire
into the adequacy thereof, notwithstanding
that Form 38 in the Appendix to the Con-
solidated Workmen's Compensation Rules, July,
1913, indicates that he may refer the matter
to the County Court Judge on the mere objec-
tion of the workman to the registration of the
memorandum on the ground of the inadequacy
of the sum. Rex v. Bow County Court
(Registrar); Scottish Shire Line, Ex parte.
83 L. J. K.B. 1806 ; [1914] 3 K.B. 266 : [1914]
W.C. & I. Rep. 591; 111 L. T. 277— D.
Payment of Lump Sum — Objection to Re-
cording of Agreement — Order for Consignment
in Court of Lump Sum Paid to Workman —
Validity of Order." — An injured workman
entered into an agreement with his employers
that the weekly compensation due to him
should be redeemed for a lump sum of lOOZ.,
which sum was paid over to him. On the
employers presenting a memorandum of this
agreement for registration, the Sheriff-Clerk
refused to record it on the ground of the
inadequacy of the sum, and referred the matter
to the Sheriff, who, holding that further
enquiry into the question was necessary,
ordered the workman to consign in Court the
1001. (less the weekly compensation due to
date) as a condition precedent to the enquiry
being held : — Held, that the Sheriff was not
entitled to make such an order. M' Vie v.
Taijlor <{■ Co.. [1914] S. C. 533— Ct. of Sess.
Compromise of Claim before any Weekly
Payments Made — Agreement not Registered —
Validity of Agreement.l — An agreement en-
tered into between an adult workman and his
employer before any weekly payment of com-
pensation has been made by which the
workman's claim for compensation under the
Workmen's Compensation Act, 1906, is com-
promised by payment of a lump sum, is not
an agreement falling within Schedule II.
clause 10 of the Act, and is effective although
not registered under the Act. Ryan v.
Hartley, 81 L. J. K.B. 666; [1912] 2 K.B.
150; [1912] W.C. Rep. 236; 106 L. T. 702
— C.A.
Memorandum not Disclosing Agreement as
to Costs.] — The solicitor of an employer who
was paying weekly compensation to a workman
offered the solicitor of the latter lol. and 5/. 5s.
of costs in final settlement of the claim. The
w'orkman's solicitor communicated the offer of
151. to his client and urged him to accept it,
but did not mention the arrangement about
costs. The workman having authorised his
solicitor to accept the offer of 15/., the solicitor
wrote accepting the offer of 15/. in settlement
of the compensation " and 5/. 5s. in full of our
[costs] as arranged." Thereafter the em-
ployer presented an application to record a
memorandum of agreement which narrated
that the weekly payments were to be redeemed
by payment of 15/., but contained no reference
to the costs. The application was opposed by
the workman. There was no suggestion that
the agreed-on amount of costs was excessive :
• — Held, first, that, in the circumstances, the
settlement between the employer and the
workman was not vitiated by the fact that the
arrangement as to costs had not been com-
municated to the workman ; and secondly, that
the memorandum of agreement was genuine
though it contained no reference to the agree-
ment as to costs, that being a subsidiary
arrangement. M' Laughlin \. Pumpherston
Oil Co., [1915] S. C. 65 -Ct. of Sess.
" Spent " Agreement — Application to Record
Memorandum of Agreement." — A County Court
Judge is entitled to refuse to record a memo-
randum of an agreement for compensation
under clause 9 of Schedule II. of the Work-
men's Compensation Act, 1906, even though
it be solely upon the ground that the facts
upon which the agreement was based are
changed, or no longer exist, and that the
agreement itself is accordingly "spent."
Popple V. Frodingham Iron and Steel Co.,
81 L. J. K.B. '769; [1912] 2 K.B. 141;
[1912] W.C. Rep. 231 ; 106 L. T. 703— C.A.
Agreement to Pay Compensation During
Total Incapacity — Arrears of Payments — Ap-
plication for Leave to Issue Execution — Juris-
diction of Registrar.] — Where a memorandum
of an agreement has been recorded by the
Registrar of a County Court, pursuant to
section 9 of the Second Schedule to the
Workmen's Compensation Act, 1906, whereby
compensation to a workman is made payable
by his employer so long as his total incapacity
for work shall last, it may be right to apply
to the Registrar to enforce that agreement as a
County Court judgment ; but if the employer
raises the question w-hether total incapacity
has ceased, that being a question which goes
to the root of the matter, the Registrar cannot
direct execution to issue. If, on the other
hand, it is admitted by the employer that
the total incapacity continues, then on that
admission there is his duty to pay compen-
sation which will be enforced by execution.
Warren v. Roxburgh, [1912] W.C. Rep. 306;
106 L. T. 555— C.A.
1989
WOKKMEN'S COMPENSATION.
1990
Enforceability of Agreement as a County
Court Judgment.] — A memorandum of an
agreement between a workman and his
employer for the redemption, by a lump
sum, of a weekly payment awarded as
compensation under the Workmen's Compen-
sation Act, 1906, in pursuance of which the
employer has paid to the workman the agreed
amount, is one which the Registrar of the
County Court is bound to register under
Schedule II. clause 9 of the Act on the appli-
cation of the employer, having regard to
clause 10 of that schedule, although nothing
further can be due thereunder to the work-
man, the provision of clause 9 that the
memorandum when so registered shall be
enforceable as a County Court judgment
applying equally whether the memorandum is
sought to be enforced by the workman or the
employer. Rex v. Thetford County Court
Registrar; Brandon Gas Co., Ex parte,
84 L. J. K.B. 291 ; [1915] 1 K.B. 2'24 : [191.5]
W.C. & I. Rep. 136: 112 L. T. 413— D.
Death of Workman not from Effects of Acci-
dent— Death within Seven Days of Sending in
Agreement to be Recorded — Agreement not
Conditional until Recorded — Time for Objec-
tions not Elapsed — Agreement duly Recorded —
Right of Legal Personal Representative to
Enforce Agreement.] — A workman was in
receipt of weekly compensation from his
employers for injury by accident. On June 12,
1914, an agreement in writing, duly executed
by the parties, by which the employers agreed
to pay the workman a lump sum of 851. in
redemption of all their liability under the
Workmen's Compensation Act, 1906, was sent
to the Registrar to be recorded. The Regis-
trar thereupon sent out the proper notices, and
on June 22, 1914, no notice of objection having
been received, recorded the agreement. Mean-
while, on June 18, 1914, before the seven days
allowed for sending in notices of objections
had elapsed, the workman died, admittedly
from causes altogether outside the accident.
Neither the Registrar nor the employers were
aware of his death when the agreement was
recorded. There were no dependants. Upon
application by the administratrix of the
deceased workman for leave to issue execu-
tion,— Held, that the agreement was not con-
ditional until it was recorded, and that it had
been duly recorded despite the death of the
workman within the seven days, and that it
was enforceable as a County Court judgment
by the administratrix under Schedule II.
clause 9 of the Workmen's Compensation Act,
1906. Price v. Westminster Brymbo Coal
and Coke Co., 84 L. J. K.B. 746; [1915]
2 K.B. 128; [1915] W.C. & I. Rep. 245;
112 L. T. 905 ; 59 B. J. 301 ; 31 T. L. R. 219
— C.A.
Schedule I. clause 19 of the Act does not bar
a claim by a legal personal representative to
enforce a deceased's w'orkman's right against
his employer. 76.
Action to Set Aside Agreement on Ground
of Mistake.] — A workman, with the advice of
his solicitor, agreed with his employers to
accept a lump sum in settlement of a claim
for compensation due to him in respect of
injuries caused by an accident, and a memo-
randum of the agreement w^as recorded. In a
subsequent action to set aside the memorandum
he averred that both parties were in error as
to the extent of his injuries at the time when
the agreement was made, both being under the
belief that he would recover in a few weeks,
whereas it turned out he was permanently
incapacitated : — Held, that these averments
did not disclose a relevant ground for setting
aside the agreement. M'Guire v. Paterson <£•
Co., [1913] S. C. 400; [1913] W.C. & I. Rep.
107— Ct. of Sess.
" Agreement " in Settlement of Claim for
Compensation.] — An agreement between a
workman and his employers for the settlement
of a claim for compensation by payment of a
lump sum may be an " agreement " in the
sense of the Workmen's Compensation Act,
1906 (and so recordable), even though the
employers dispute liability to pay compensa-
tion, if in fact they have agreed to the amount
of the payment being fixed as though they
were liable under the Act. lb.
Appeal from County Court Judge — Jurisdic-
tion of Court of Appeal.] — When a County
Court Judge makes an order upon a matter
referred to him by a Registrar of the County
Court on his refusal to record a memorandum
of agreement under clause 9 id) of Schedule II.
to the Workmen's Compensation Act, 1906, an
appeal from that order lies direct to the Court
of Appeal under clause 4 of Schedule II., and
not to the Divisional Court. Panagotis v.
''Pontiac" (Owners) (81 L. J. K.B. 286;
[1912] 1 K.B. 74; [1912] W.C. Rep. 74) dis-
tinguished. Bonnei) v. Hoyle d- Sons, Lim.,
83 L. J. K.B. 541 ; '[1914] 2 K.B. 257 ; [1914]
W.C. & I. Rep. 565; 110 L. T. 729;
12 L. G. R. 358; 58 S. J. 268; 30 T. L. R.
280— C.A.
Application to Rectify Register by Removing
Memorandum — Jurisdiction.] — In arbitration
proceedings under the Workmen's Com-
pensation Act, 1906, there is no jurisdiction
to remove from the register, kept under
Schedule II. clause 9 of the Act, a memo-
randum of agreement which correctly states
the terms of the agreement entered into be-
tween the parties, unless the application to
remove it is made under Schedule II.
clause 9 (e) within six months of its being
recorded, and it is proved to the satisfaction
of the arbitrator that the agreement was
obtained by " fraud or undue influence or
other improper means." Schofield v. Clough
,(■ Co., 82 L. J. K.B. 447; [1913] 2 K.B. 103;
[1913] W.C. & I. Rep. 292; 108 L. T. 532;
57 S. J. 243-C.A.
Costs — Jurisdiction — Enquiry as to Adequacy
of Sum Payable — Order for Successful Party
to Pay Costs — No Misconduct Proved.] — As-
suming that a County Court Judge has juris-
diction as to the costs of an enquiry, under
the Workmen's Compensation Act, 1906,
Sched. II. clause 9 (d), as to recording
a memorandum of an agreement for redemption
of a weekly payment, he cannot order a
successful party against whom no misconduct
1991
WOEKMEN'S COMPENSATION.
1992
is proved to pay the costs of the other party.
Kierson v. Thompson d- Sons, Lim., 82 L. J.
K.B. 920; [1913] 1 K.B. 587; [1913] W.C. &
I. Rep. 140; 108 L. T. 236; 57 S. J. 226;
29 T. L. R. 205— C.A.
b. Amount of Compensation.
See also Vol. IX. 2217.
Seaman.] — In the case of seamen, compensa-
tion for accident under the Workmen's Com-
pensation Act begins exactly where the right
to maintenance under the Merchant Shipping
Acts ends. McDermott v. " Tintoretto "
Steamship, 80 L. J. K.B. 161; [1911] A.C. 35;
103 L. T. 769 ; 11 Asp. M.C. 515 ; 55 S. J. 124 ;
27 T. L. R. 149— H.L. (E.)
The words in paragraph 3 of Schedule I. to
the Workmen's Compensation Act, that the
arbitrator is to have regard to " any payment,
allowance, or benefit which the workman may
receive from the employers during the period
of his incapacity," refer only to such as is
received in respect of the incapacity or that
period of it which is covered by the compensa-
tion, lb.
The appellant, a seaman, was injured by
accident on board ship and received main-
tenance and wages until he landed in New
York, where he was discharged and taken to
a hospital, where he stayed for some weeks.
He was then conveyed to England, where he
arrived more than two months after the acci-
dent : — Held, that the arbitrator, in assessing
compensation for the accident, was not re-
quired by paragraph 3 of the schedule to
make any deduction from the award in re-
spect of the wages, maintenance, and treat-
ment received by the seaman on the ship from
the time of the accident until he was dis-
charged. 7b.
Stoker in Mercantile Marine — Member of
Royal Naval Reserve — Concurrent Contracts
of Service.] — A sailor, who was also a member
of the Royal Naval Reserve, met with an acci-
dent, and compensation was awarded to him.
The County Court Judge, in estimating the
average weekly earnings of the applicant, had
regard, in addition to his wages, to the annual
sura of 6/. which he received as a member of
the Royal Naval Reserve : — Held, that there
were concurrent contracts of service within
Schedule I. 2 (b) of the Workmen's Com-
pensation Act, 1906, and that the applicant
was entitled to bring the annual sum as well
as his wages into account. " Raphael "
Steamship v. Brandy, 80 L. J. K.B. 1067;
[1911] A.C. 413; 105 L. T. 116; 55 S. J. 579;
27 T. L. R. 497— H.L. (E.)
" Benefit " Received from Employer— Hos-
pital Charges Paid.] — Payment by employers
of an account rendered to them for the main-
tenance of an injured workman in hospital is
a benefit received by the workman within the
meaning of the Workmen's Compensation Act,
1906, Sched. I. (3), which falls to be taken
into account in fixing the amount of his com-
pensation. Sorensen v. Gaff J; Co., [1912]
S. C. 1163; [1912] W.C. Rep. 342— Ct. of
Sess.
" Suitable employment " — Risk of Future
Incapacity — One-eyed Miner.] — A miner was
struck by a chip of coal while working at the
coal face and thereby lost the sight of one
eye. His employers, after paying compensa-
tion for a time, ceased payment on the ground
that he was able to resume his former occu-
pation and to earn his former wage. The
miner having applied to the Sheriff to have
the compensation continued, the Sheriff dis-
missed the application, finding that the miner
was able to resume his former occupation at
the face and to earn his former wage, and that
the risk, which was incidental to working at
the face, of a similar accident again happening
was not increased by the fact that he had lost
the sight of an eye. On appeal, it was con-
tended for the miner that the Sheriff had dis-
regarded the relevant consideration that the
loss of one eye, although not increasing the
risk of a similar accident occurring, would
render the results of such an accident more
serious, as total blindness would follow; and
accordingly that, the employment of a miner
working at the face not being a " suitable
employment " for him, he was still entitled
to compensation : — Held {dub. Lord Johnston),
that the determination of the Sheriff, in dis-
missing the application, was right. Law v.
Baird, [1914] S. C. 423; [1914] W.C. & I.
Rep. 140— Ct. of Sess.
Observed that the question whether an
employment was suitable arose only under
Schedule I. (3) of the Workmen's Compensa-
tion Act, 1906, when partial incapacity existed,
and therefore did not arise in this case as the
workman's incapacity had ceased. lb.
Per The Lord President and Lord
Guthrie (Lord Johnston dissenting) : The
circumstance that the results of a future acci-
dent might be more serious to a workman who
had lost one eye than to a workman who had
not, could not relevantly be taken into con-
sideration in determining what was " suitable "
employment. lb.
Dicta in Eyre v. Houghton Main Colliery
Co. (79 L. J. K.B. 698; [1910] 1 K.B. 695)
discussed. lb.
Loss of Eye — Recovery of Wage-earning
Capacity — Question of Fact.] — The appellant,
who was a miner in the employment of the
respondents, met with an accident arising out
of and in the course of his employment in the
year 1912 and lost the sight of an eye, and
the respondents paid him compensation. In
1913, by consent, the question of the appel-
lant's fitness for employment was referred to
a referee, who reported that he had recovered
from his incapacity and was again fit for his
work as a miner. Since that time the respon-
dents were willing to employ him as a miner,
and they in fact employed him at labouring
work on the surface. On the application of
the respondents the arbitrator ended the com-
pensation on the ground that the appellant
had not proved that he had not recovered his
1993
WOEKMEN'S COMPEXSATIOX.
1994
wage-earning capacity : — Held, that the ques-
tion was one of fact for the arbitrator. Jones
V. Anderson, 59 S. J. 159; 31 T. L. E. 76—
H.L. (Sc.)
Accident Making Loss of Eye Apparent —
Loss of Earning Capacity — Inability to Obtain
Employment.^ — Tlie theory upon whicli com-
pensation for injury by accident under the
Workmen's Compensation Act, 1906, proceeds
is that of compensation to the worker as a
wage earner, and a disfigurement which im-
pairs or destroys the injured workman's
capacity to get work is an element to be
taken into consideration in the assessment of
compensation. Ball v. Hunt. 81 L. J. K.B.
782; [1912] A.C. 496; [1912] W.C. Eep.
261 ; 106 L. T. 911 ; 56 S. J. 550; 28 T. L. R.
428— H.L. (E.)
The appellant, who was an edge-tool
moulder, many years back met with an
accident in the course of his employment
whereby he lost the sight of one eye, but the
loss was not apparent and he was able to
obtain employment at usual wages as if his
sight had been normal. In September, 1910,
while in the service of the respondents, he
met with a second accident which necessitated
the removal of the blind eye and rendered the
loss apparent, as the result of which, though
now completely recovered, he was unable,
although his power to do work remained as
before, to obtain further employment in his
trade : — Held, that the appellant's inability
to obtain employment by reason of his dis-
figurement by the removal of his blind eye
was an element to be taken into consideration
in assessing compensation under the Work-
men's Compensation Act, 1906. lb.
Decision of the Court of Appeal (80 L. J.
K.B. 655; [1911] 1 K.B. 1048) reversed. lb.
Goods Porter — Light Work Found by Em-
ployers after Accident — Mess-room Attendant
— Same Rate of Wages as before— Interrup-
tion of Work for Four Days by Reason of
Strike.] — A goods {jorter, eiupluyed by a rail-
way company at 235. 6d. a week, in November,
1911, was totally incapacitated by accident in
the course of his employment. In December,
1912, having partially recovered, he resumed
work, and the company having paid him half
wages in the interval, found him light work
as a mess-room attendant at the same rate of
wages that he was receiving before the acci-
dent, and he was so employed at the present
time. In November and December, 1913, on
four days, which were not consecutive days,
the company were unable to find work for
him and other members of their staff, in con-
sequence of a labour strike in Dublin. He
claimed 7,9. lOd. as compensation for the four
days : — Held, that the claim could not be
supported ; that it was inconsistent with the
provisions of Schedule I. clauses 1 (b) and 3
of the Workmen's Compensation Act, 1906;
that it was immaterial that the light work
was obtained from the employers and not from
a stranger, and that, as tlie relation of em-
ployers and workman had continued ever since
December, 1913. with only the loss of four
days, the interruption, if it could fairly be so
called, was of no moment. Woodhouse v.
Midland Railway, 83 L. J. K.B. 1810; [1914]
3 K.B. 1034; [1914] W.C. & I. Eep. 595;
111 L. T. 1084 ; 30 T. L. E. 653— C. A.
Partial Incapacity — General Fall in Wages
since Accident — Method of Assessing Compen-
sation — Extraneous Circumstances.] — In
awarding compensation to a workman for
partial incapacity under the Workmen's Com-
pensation Act, 1906, Sched. I. clause 3, the
Court will have regard to extraneous circum-
stances not personal to the workman. Bevan
V. Energlyn Colliery Co., 81 L. J. K.B. 172;
[1912] 1 K.B. 63; [1912] W.C. Eep. 126;
105 L. T. 654; 28 T. L. E. 27— C. A.
In 1907 a collier sustained injuries through
an accident, and was paid compensation by
his employers until February, 1911. In
August, 1911, he commenced proceedings to
recover compensation for partial incapacity.
Before the accident his average weekly earn-
ings were 21. 19s. Id., but now he was only
earning IL 12.9. Id. a week. There was
evidence, however, that apart from any acci-
dent he would not have been able to earn
as much as he was doing in 1907, because
colliers' earnings had fallen universally
owing to the passing of the Coal Mines Eegu-
lation Act, 1908, which reduced the working
hours of miners to eight hours a day : — Held,
that the fall in wages was a circumstance to
which the Court must have regard in award-
ing compensation for partial incapacity under
Schedule I. clause 3 of the Workmen's Com-
pensation Act, 1906. James v. Ocean Coal
Go. (73 L. J. K.B. 915: [1904] 2 K.B. 213)
distinguished. lb.
"Average weekly earnings" — Computation
— Mathematical Accuracy.] — Although the
Court does not require mathematical accuracy
in calculating the average weekly earnings of
a workman who has been injured by " accident
arising out of and in the course of " his em-
ployment, within the meaning of section 1 of
the Workmen's Compensation Act, 1906, a
small mistake in the ascertained amount not
being sufficient to upset an award, yet where
there is a substantial mistake the case must
go back to the County Court Judge to assess
the compensation to which the workman is
entitled. James V. Mordey, Carney d- Co.,
[1913] W^C. & I. Eep. 670; 109 L. T. 377—
C.A. And see Roper v. Freke. ante, col. 1947.
Amount Earned by "a person in the
same grade" — Two Grades of Casual
Labourers — Preferential Right of Employ-
ment.]— A man engaged as "extra casual
labourer " met with an accident in his em-
ployment. He had only been engaged for a
day when he met with the accident, so that
his " average weekly earnings " had to be
computed by taking the average amount earned
by " a person in the same grade " as himself
within Schedule I. (2) (a) of the Workmen's
Compensation Act, 1906. The man's employers
had two classes of casual labourers — " B "
ticket men with preferential rights of employ-
ment and "extra casual labourers." "B"
ticket men got on the average four days' work
a week, and " extra casual labourers " three
davs' work a week. Both classes received the
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WORKMEN'S COMPENSATION.
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same rate of pay and did the same work : —
Held (Cozens-Hardy. M.R.. dissenting), that
the preference made a difference of grade
between the " B "' ticket men and the " extra |
casual labourers," and that in computing the |
man's average weekly earnings under Sche-
dule I. (2) (a) regard must be had to the
average amount earned by the latter grade,
and not to that earned by the former grade.
Barnett v. Port of London AutJioritij (No. 1).
82 L. J. K.B. 353: [19131 2 K.B. 115: [1913]
W.C. & I. Ren. 250: 108 L. T. 277: 57 S. J.
282; 29 T. L. E. 252— C. A.
The provision in Schedule I. clause 2 (a) of
the Workmen's Compensation Act, 1906, that
for the purpose of assessing compensation in
respect of an accident to a workman " average
weekly earnings shall be computed in such
manner as is best calculated to give the rate
per week at which the workman was being
remunerated," means that they are to be com-
puted in the manner best calculated to give
the rate of his remuneration under the em-
ployer for whom he was working when the
accident happened. A casual labourer who is
employed casually by two or more different
employers is not employed under concurrent
contracts of service within the meaning of
Schedule I. clause 2 (b) of the Act. A work-
man who was employed by the respondents
as a casual corn porter met with an accident
in the course of his employment. He had
been employed by them casually during the
three years preceding the accident, and during
the year preceding the accident he had also
been employed by a shipping firm at such a
high rate of pay that his combined earnings
for the year averaged over 21. 5s. a week. The
average earnings of a corn porter in the em-
ployment of the respondents was 30s. a week :
— Held, that the workman's average weekly
earnings must be computed by regard to the
average weekly earnings of a workman in the
same grade under the same employer, but that
regard must also be had to the man's personal
qualification as shewn by his high wages with
the shipping company. In any case, however,
the average weekly earnings could not be com-
puted at more than the maximum sum earned
by a man in the same grade under the same
emplover. Cue v. Port of London Authority,
83 L. J. K.B. 1445 : [19141 3 K.B. 892 ; [1914]
W.C. & I. Rep. 481; 111 L. T. 736— C. A.
Grade of Employment — Change of
Grade/ — A girl in a rope and sailcloth factory,
employed at a weekly wage of 7s. 6d. to work
a drawing machine dealing with hemp which
was afterwards spun into rope, was promoted
to work, at a weekly wage of 8s., a drawing
machine dealing with tow, a finer material
which was afterwards woven into sailcloth.
Five weeks after the change she was accident-
ally injured : — Held, that the change was a
change in the " grade " of her employment
within the meaning of Schedule I. (2) (c) of
the Workmen's Compensation Act, 1906, and
that compensation was to be calculated on the
basis of her average weekly earnings for these
five weeks. Dalgleish v. Edinburgh Roperies
and Sailcloth Co., [1913] S. C. 1007— Ct. of
Sees.
'Workman Employed in Different Grades
of Employment.] — A workman, a boilermaker
by trade, who had been employed for four
weeks as a boilermaker at a boilermaker's
wage, and for fifteen weeks as a labourer at
a labourer's wage, in the service of the same
employer, was injured while working as a
labourer : — Held, that in calculating his aver-
age weekly earnings for purposes of compen-
sation, the wages he had earned as a boiler-
maker did not fall to be included. Babcock d-
Wilcox V. Young, [1911] S. C. 406— Ct. of
Sess.
A workman was employed as a casual
labourer for five weeks, when he met with an
accident in the course of that employment.
Occasionally during that time he had been
employed to take the place of a grinder who
was ill, for which he received higher remuner-
ation, but he had not been employed as a
grinder for fourteen days before the accident :
— Held, that, in considering the amount of
compensation to be awarded, the earnings in
both capacities should be taken into account.
Dobson V. British Oil and Cake Mills,
[1912] W.C. Rep. 207; 106 L. T. 922— C.A.
Earnings of Same Grade — Personal Quali-
fications— Actual Earnings.] — A man engaged
as a casual grain porter met with an accident
while employed by a corporation. He was
preferentially employed as an able and reliable
man by some firms, but not by the corporation.
He obtained an average weekly wage of 2L,
whereas the average weekly wage of casual
grain porters was 25s. The County Court
Judge found that there was no grade of pre-
ferred casual grain porters, and that the man
was only entitled to 12s. 6d. a week compensa-
tion, half the average earnings of his grade of
casual grain porters : — Held, that the County
Court Judge ought to have had regard to the
personal qualifications and actual earnings of
the man as well as the average earnings of his
grade, and that he was entitled to compensation
at IL a week. Snell v. Bristol Corporation.
83 L. J. K.B. 353; [1914] 2 K.B. 291; [1914]
W.C. & I. Rep. 100; 110 L. T. 563— C.A.
Power of Arbitrator in Awarding
Amount.] — An arbitrator is not bound to
award the full half of his average weekly
earnings to a workman as compensation for
total incapacitv, although he cannot give more.
lb.
Capacity for Work Offered — Interference
by Trade Union — Incapacity Caused by Acci-
dent— Machine Minder — Skilled "Workman.] —
A workman, who was originally a labourer
earning 21s. a week, was promoted by his
employers to mind a newly invented wire-
drawing machine at 37s. 6d. a week. He was
injured while working this machine, and lost
two fingers. Full compensation was paid until
he had recovered as far as possible. When he
returned his employers gave him work as a
labourer, which after a time he left. They
were willing to give him work on the machine,
and said he was fit for it. He also was willing
and said he could do the work, but a trade
union interposed and forbade men who had not
been apprenticed to wire drawing — and this
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WORKMEN'S COMPENSATION.
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workman had not heon apprenticed — to work
a wire-drawing machine. There was no other
evidence as to the amount the man could now
earn in a suitable employment : — Held, that
the man could not claim compensation based
on his wages of 37s. 6d. a week, as his em-
ployers were prevented from giving him the
machine work ; that he was in a grade beyond
that of an ordinary labourer, and that, as
there was no evidence of partial incapacity
resulting from the injury, a declaration of
liability only should be made. Thompson v.
Johnson ,f Nepheiv, Lim., 84 L. .J. K.B. 158;
[1914] 3 K.B. 694; [1914] W.C. & I. Kep.
3.33: 111 L. T. 7.34— C. A.
" Concurrent contracts of service " — Acci-
dent in One Employment — Provision that
Workman to Devote Himself Exclusively to
that Employer's Service/ — Wliere a workman
is employed concurrently under two or more
contracts of service, they need not be ejusdem
generis in order to be " concurrent contracts
of service " within the meaning of Schedule I.
clause 2 (b) of the Workmen's Compensation
Act, 1906. Lloyd v. Midland Raihvay,
83 L. J. K.B. 330; [1914] 2 K.B. 53; [1914]
W.C. & I. Rep. 105; 110 L. T. 513; 58 S. J.
249; 30 T. L. E. 247— C.A.
A workman was employed by a railway
company as a platelayer, his hours of work
being from 6 a.m. to 5.30 p.m. on weekdays,
except Saturdays, when he finished work at
12 noon. He also worked of an evening as
checktaker at a theatre under a contract of
service. When the workman was first taken
into the railway company's employment, he
was handed a book entitled " Rules and Regu-
lations for the Guidance of Officers and Men
in this company's employment. Rule 1 pro-
vided that " persons employed by the company
must devote themselves exclusively to the
company's service." The workman, having
met with an accident while working for the
railway company, made a claim for compensa-
tion under the Workmen's Compensation Act,
1906 : — Held, that rule 1, on its true construc-
tion, only meant that the workman was to
devote himself exclusively to the company's
service during the actual hours of his employ-
ment by them, and that, notwithstanding that
rule, the workman's compensation must be
computed on the footing that his " average
weekly earnings " were the combined earnings
in his two concurrent employments in accord-
ance with Schedule I. clause 2 (6) of the Act
of 1906. Ih.
"Grade" — Temporary Employment.] —
A man who was ordinarily employed as a
" hobbler " was drowned while temporarily
acting as mate of a ship, the proper mate
being absent through illness : — Held, that the
man had not met his death while holding the
" grade " of a mate within the meaning of
that term in Schedule I. clause 2 (a) of the
Workmen's Compensation Act, 1906. Jury v.
Atlanta s.s. (Owners), 81 L. J. K.B. li82 ;
[1912] 3 K.B. 366; [1912] W.C. Rep. 389;
107 L. T. 366; 56 S. J. 703; 28 T. L. R.
562— C.A.
"Grade" — Permanent Employment as
Carter — Temporary Employment as Teams-
man.] — A workman was employed for a few-
weeks as a casual carter, and subsequently,
but only temporarily, as a casual teamster, at
a higher rate of wages. Having met with his
death by an accident arising out of and in the
course of this latter form of employment, and
his dependants having claimed compensation
under the Workmen's Compensation Act, 1906,
— Held, that, under the special circumstances
of the case, the temporary employment as
teamster did not constitute a new and distinct
" grade " of employment within the meaning
of Schedule I. clause 2 (a) of the statute ; and
that the arbitrator accordingly was justified
in adding together his wages in the two
different kinds of employment in order to form
a basis on which to arrive at his " average
weekly earnings." Dobson v. British Oil and
Cake Mills ([1912] W.C. Rep. 207) followed.
Edge v. Gorton, 81 L. J. K.B. 1185; [1912]
3 K.B. 360: [1912] W.C. Rep. 392; 107 L. T.
341; 56 S. J. 719; 28 T. L. R. 566— C.A.
Absence During Illness.] — A workman,
who met with a fatal accident in the course
of his employment, had been in his employ-
ment from the beginning of October, 1910, to
the date of his death on May 20, 1912, and
his total earnings during that period amounted
to lllL 125. 3d. On proceedings taken by the
workman's widow to obtain compensation, the
employers paid into Court 202i!. 9s. 6d., being
a sum equal to 150 times the average weekly
earnings of the workman, the weekly earnings
being calculated on the division of lllZ. 12s. 3d.
by eighty-six, the number of weeks worked. It
appeared that during the eighteen months of
his employment the workman was absent
during eight days by illness, and that there
were two broken weeks at the beginning and
end of the employment. The County Court
Judge adopted the employers' contention as to
the calculation of the sum payable and awarded
the amount paid into Court : — Held, that the
award was right ; that although the broken
days at the beginning of the employment ought
strictly to be added to the days in the broken
week at the end, the County Court Judge was
not bound in view of the length of the employ-
ment to go into this with microscopical
accuracy ; and that in the circumstances he
was justified in disregarding the number of
days during which the workman was absent
through illness. Turner v. Port of London
Authority. [1913] W.C. & I. Rep. 123;
2^ T. L. R. 204— C.A.
Days Lost through Shortage of Work —
Method of Computation.] — In calculating the
average weekly earnings of a workman for the
purpose of awarding compensation under the
Workmen's Compensation Act, 1906. the Court
nuist not disregard days or parts of days during
the twelve months preceding the accident in
which there was a shortage of work so that
tlic employer was unable to find the workman
any work to do. While v. Wiseman. 81 L. J.
K.B. 1195; 3 K.B. 3.52; [1912] W.C. Rep.
403; 107 L. T. 277; 56 S. J. 703; 28 T. L. R.
.542— C.A.
Absence from Work Due to Trade Fluc-
tuations — Trade during Period of War —
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WORKMEN'S COMPENSATION.
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Absence not Due to "unavoidable cause."] —
In computing " average weekly earnings "
under Schedule I. of the Workmen's Compen-
sation Act, 1906, absence from work due to
trade fluctuations during a period of war, but
arising independently of the war, is not to be
excluded as absence due to " unavoidable
cause" within Schedule I. clause 2 (c) of the
Act. Per Warrington, L.J. : Even if the
absence from work were due to fluctuations of
trade caused by war. it ought not to be
excluded, as such fluctuations would not,
during a period of war, be abnormal incidents
of the employment. Griffiths v. Gilbertson
<i- Co., 84 L. J. K.B. 1312; [1915] W.C.
& I. Rep. 359; 113 L. T. 628— C.A.
Employment under Abnormal Circum-
stances.]— A workman was taken on during a
dock strike as an extra dock labourer and was
incapacitated, after working for twelve days,
by an accident arising out of and in the course
of his emploj'ment. He was paid at the
ordinary rate per hour of a casual dock
labourer, but was able to earn more than an
extra casual dock labourer would in ordinary
times because there was a shortage of workmen
and the employment was continuous. The
arbitrator found that the circumstances were
entirely abnormal, that there was no grade to
■which he could find that the workman
belonged, and that the workman would have
earned during the strike period at least as
much per week as he earned during the first
week. He therefore computed the man's
average weekly earnings at that amount and
awarded compensation on that basis : — Held,
that the arbitrator had not misdirected himself,
and was justified in computing the man's
average weekly earnings in that way. Barnett
V. Port of London Authority (No. 1), 82 L. J.
K.B. 353; [1913] 2 K.B. 115; [1913] W.C. &
I. Rep. 250; 108 L. T. 277; 57 S. J. 282;
29 T. L. R. 252— C.A.
Aliquot Share of Net Earnings of Gang.j
— A workman employed by a company worked
in a gang. The gang was paid a certain rate
per ton of stone raised, the powder necessary
to raise it being supplied to the gang by the
company at cost price. The head of the gang
received the net sum due after the cost of the
powder had been deducted, and distributed it
among the members of the gang according to
the number of hours each had worked and not
according to the amount of stone raised or
powder used by each. The average weekly
sum actually received by the workman was
II. 6s. 2d. The average cost per man per
week of the powder was 3s. : — Held, that the
workman's average weekly earnings, computed
on the footing of Schedule I. (2) (a) of the
Workmen's Compensation Act, 1906, were his
aliquot share of the net earnings of the gang
— namely, 1/. 6s. 2d. Shipp v. Frodingham
Iron and Steel Co., 82 L. J. K.B. 273; [1913]
1 K.B. 577; [1913] W.C. & I. Rep. 230;
108 L. T. 55: 57 S. .J. 261; 29 T. L. R. 215
—C.A.
Whether a sum deducted from a definite
wage to an individual workman would be con-
sidered a sum paid to cover any special expense
within Schedule T. (2) (d). qurpre. lb.
Temporary Employment — Intention of
Leaving England.] — A carpenter who had been
working in Canada came to England in
November intending to return to Canada in
April. He worked temporarily for employers
whom he had informed of his intention to
leave this country, and having met with an
accident in February, after working for nine
weeks, he claimed compensation. The arbi-
trator assessed compensation under Schedule I.
clause 1 (b) of the Act at 50 per cent, of one-
ninth part of the aggregate amount actually
earned by the workman during the nine weeks.
He refused to take into consideration that he
might have earned more in the summer by
working longer hours at the same employment,
as he was intending to leave for Canada in
April, and he considered it not " imprac'iic-
able," under Schedule I. clause 2 (b), at the
date of the accident to compute the rate of
remuneration of the workman in this way : —
Held, that the employment being admittedly
of a temporary character, the arbitrator had
made no error of law in so computing the
" average weekly earnings," and he was not
bound to give the workman the benefit of the
higher wages he might have earned when the
days were longer if he had continued in the
same employment. Godden v. Cowlin,82 L. J.
K.B. 509; [1913] 1 K.B. 590; [1913] W.C.
& I. Rep. 330; 108 L. T. 166; 57 S. J. 282;
29 T. L. R. 255— C.A.
Employment by Same Employer for Three
Years Next Preceding Injury — Absence from
Work During Period — Period of Employment
— "Employment by the same employer."] —
Where the relationship of master and servant
has existed continuously for a period of three
years next preceding the death of a work-
man by accident in his employment, the case
falls within the First Part of Schedule I.
clause 1 (a) (i) of the Workmen's Compensa-
tion Act, 1906, and the definition of the words
" employment by the same employer " in
Schedule I. clause 2 (c) is not to be applied
to those words in the First Part of Schedule I.
clause 1 (a) (i), so that neither absence from
work due to " illness or other unavoidable
cause " nor change of grade is to be regarded,
and the compensation to be awarded to the
deceased's total dependants is the amount of
wages actually earned by him during that
period. Semble, a very prolonged absence
might break the continuity of the employment.
Greeyuoood v. Nail ,f- Co., 84 L. J. K.B" 1356;
[1915] 3 K.B. 97 ; [1915] W.C. & I. Rep. 346;
113 L. T. 612; 59 S. J. 577; 31 T. L. R. 476
—C.A.
A workman was, for a period of exactly
three years next preceding his death by acci-
dent in his employment, employed only by the
respondent employers in one grade. During
this period he was absent from work for
163 working days ; forty-five not accounted
for, thirty-five for sickness, and eighty-three
for injury, the longest period of absence being
six w^eeks : — Held, that the compensation
payable to his dependant was the amount
of the sum actually earned by the deceased
during the period of three years. lb.
Power of County Court Judge to Amend
Claims.] — Where a claim has been made on
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WORKMEN'S COMPENSATION.
2002
the basis of partial dependency, and no appli-
cation to amend has been made, the County
Court Judge has no power to make an award,
on the basis of total dependency, for a larger
sura than that claimed. Lloyd v. Powell
Duffryn Steam Coal Co., 83 L. J. K.B. 1054:
[1914] A.C. 733; [1914] W.C. & I. Eep. 450:
111 L. T. 338; 58 S. J. 514; 30 T. L. E. 456
— H.L. (E.)
10. Suspensory Award.
Possibility of Supervening Incapacity.] — A
workman who had suffered injuries which
necessitated the amputation of portions of three
fingers of the right hand, after recovering
from the operation obtained work at higher
wages in the district where he had been em-
ployed and where, owing to the construction
of public works, there was a large demand for
labour. In an arbitration under the Work-
men's Compensation Act, 1906. the arbitrator,
while finding that the workmen's injuries were
permanent, found also that he was no longer
incapacitated owing to the accident from
earning his former wages, and ended the com-
pensation that was being paid to him. In an
appeal at the instance of the workman, the
Court remitted the Case to the arbitrator to
consider and decide whether the ending of the
payment of compensation should be permanent
or temporary. Dempsey v. Caldwell d Co.,
[1914] S. C. 28— Ct. of Sess.
Per The Lord President (dub. Lord John-
ston) : A suspensory order was the proper
judgment for the arbitrator to pronounce,
looking to the possible adverse effect of a
change in the condition of the labour market
on the future wage-earning capacity of a
permanently damaged person. lb.
Rosie V. Mackay ([1910] S. C. 714) and
Taylor v. London and NortJt- Western Railway
(81 L. J. K.B. 541; [1912] A.C. 242) con-
sidered, and the former case held overruled by
the latter. lb.
Rupture — Declaration of Liability — Suspen-
sory Award.l — On Septcinbcr 6, 1913, the
applicant suffered personal injury — namely, a
ruptnre — by " accident arising out of and in
the course of " his employment within the
meaning of section 1, sub-section 1 of the
Workmen's Compensation Act, 1906. The
rupture did not permanently disable him, but
it occasioned a certain amount of pain. On
informing the manager of his employers of the
accident an order was given to him to go to
the infirmary, where he was told to wear a
truss, W'hich he obtained there. The injury
was of a nature which even immediately did
not interfere with his work. He was only
away one or two days, and the truss which
was given him at the infirmary he thought so
little of that he wore it only off and on, since
which his wife had made him an appliance
that, according to the medical evidence, was
practically useless. For eighteen months the
applicant continued to work for the greater
part of the time with the same employers,
doing the same work, without any ill conse-
quences arising from it. But there came a
time when his employers did not want him any
more, and thereupon he commenced proceedings
to obtain compensation. It was found by th©
learned County Court Judge that it was not
proved that incapacity for work had resulted
from the injury to the applicant as between
the date of the accident and February 13,
1915, when he finally left the respondent's
employment ; and that the applicant had not
been incapacitated for work since the last-
mentioned date inasmuch as there was nothing
to shew that he was unable to do suitable work
of the same class as that which he had done
for the respondents almost continuously since
the accident. In these circumstances His
Honour declined to make a declaration of
liability, as he was of opinion that there was
no reasonable ground for anticipating that
with reasonable care on the part of the appli-
cant he would suffer any incapacity in the
future from the accident. The applicant
appealed : — Held (dissentiente Lord Cozens-
Hardy, M.R.), that the case came within the
decisions in " Tynron " (Owners) v. Morgan
(78 L. J. K.B. 857: [1909] 2 K.B. 66) and
Griga v. ''Harelda" (Owners), (3 B.W.C.C.
116) ; and that therefore the applicant was
entitled to a declaration of liability or a
nominal award. Chapman v. Sage d Co.,
[1915] W.C. & I. Eep. 472; 113 L. T. 62a-
C.A.
Wage-earning Capacity — " Suitable employ-
ment."!— A workman met with an accident
arising out and in the course of his employment
which caused the loss of one eye. Subsequently
he recovered sufficiently to be physically able
to do his old work, and his employers offered
to take him on again at his work at his old
wages : — Held, that this was not sufficient to
shew that all incapacity from the accident had
ceased. The test was whether the man's
wage-earning capacity had been diminished,
and in this connection it was the duty of the
Court to consider whether the old work was
" suitable employment '" for him. Where by
(■heir answer a workman's employers have
formally submitted to a suspensory award in
favour of the workman, the arbitrator is not
entitled to withhold it from the workman and
make an unqualified award in favour of the
employers. Jackson v. Hunslet Engine Co.,
84 L. J. K.B. 1361; [1915] W.C. & I. Eep.
389; 113 L. T. 630— C. A.
Unreasonable Refusal to Submit to Medical
Treatment.1 — A collier met with an accident
arising out of and in the course of his employ-
ment, and was paid compensation by his
employers under the Workmen's Compensation
Act, 1906, for over a year. They then stopped
paying it, and he thereupon commenced pro-
ceedings for compensation ; but the employers
denied liability on the ground that, if the
incapacity still continued, it was owing to the
man's unreasonable refusal to undergo medical
treatment provided and paid for by them. A
few months before the employers stopped the
payments the man had been advised to undergo
the Weir-Mitchell treatment for neurasthenia.
The employers agreed to provide it. and the
man's solicitors, in writing to say that he
agreed to submit himself to it, suggested that
as he was also advised to have massage for
Slime injury to his back this should be given
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WORKMEN'S COMPENSATION.
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him at the same time. The employers agreed
to this, and the man entered a home for
treatment, but on an attempt being made to
massage him he left the home. The medical
evidence was apparently all in favour of
massage, but no note of the evidence was
taken by the County Court Judge, who dis-
missed the application on the ground that the
continued incapacity was due to the man's
unreasonable refusal to submit to massage : —
Held, on the correspondence and admitted
facts, that there was evidence to support the
Judge's decision, but that, as it was not
certain that massage would cure the incapa-
city, there ought to be a suspensory award of
Id. a week. Smith v. Davis <£■ Sons, Lim.,
84 L. J. K.B. 1125; [1915] A.C. 528; [1915]
W.C. & I. Kep. 299; 113 L. T. 250; 59 S. J.
397 ; 31 T. L. E. 356— H.L. (E.)
Refusal of Compensation — No Suspensory
Award — Incapacity Continued.] — On a work-
man's application for compensation under the
Workmen's Compensation Act, 1906, a suspen-
sory award may be made on an original appli-
cation for compensation as well as on an
application to review under Schedule I.
clause 16 of the Act. If the workman's
application is dismissed without any such
suspensory award being made the matter is res
judicata, and no subsequent application for
compensation can be entertained in respect of
the same accident, although the workman's
capacity for work may have altered in the
meantime. Nicholson v. Piper (76 L. J. K.B.
856; [1907] A.C. 215) followed. Green v.
Cammell, Laird .(■ Co.. 82 L. J. K.B. 1230;
[1913] 3 K.B. 665; [1913] W.C. & I. Eep.
707 ; 109 L. T. 202 ; 29 T. L. E. 703— C.A.
Per Kennedy, L.J. : In cases of a permanent
physical injury the arbitrator, if satisfied that
the workman's incapacity for work has for the
time ceased, ought as a general rule — inasmuch
as in such a case an incapacity for work due to
the injury may supervene at a later time —
not to make an award simply terminating the
weekly payment, but should make an order
keeping alive the employer's liability. lb.
See also cases sub tit. Eeview and Eedemp-
TiON OF Weekly Payments.
11. Form and Costs of Award.
Judge's Decision — Duty to State Grounds.]
— It is the duty of a County Court Judge,
when sitting as an arbitrator under the
Workmen's Compensation Act, 1906, to state
the grounds of his decision. Marshall v.
Price, Wills d Reeves, 30 T. L. E. 248— C.A.
Form of Award.] — The use of Form 24 or
of the Workmen's Compensation Eules, 1907
(made in pursuance of the Workmen's Com-
pensation Act, 1906), is intra vires an arbi-
trator under the statute when making an
award for compensation to an injured work-
man. Although circumstances might conceiv-
ably arise in which it might be necessary
to modify tliis form, or to depart from it
altogether, yet in the vast majority of cases
this is the proper form to be used. Higqins v.
Poulson, 81 L. J. K.B. 690; [1912] 2 K.B.
292; [1912] W.C. Eep. 244; 106 L. T. 518;
28 T. L. E. 323— C.A.
Oral Judgment — Alteration in Subsequent
Formal Award — Subsequent Correction of
Formal Award — Jurisdiction.] — Where the
award of a County Court Judge, sitting as an
arbitrator under the Workmen's Compensation
Act, 1906, has been signed, sealed, and filed
in accordance with rule 28 of the Workmen's
Compensation Eules, 1907, it is not competent
for him afterwards to alter it, except as
provided for in sub-rule 2 of rule 28. Mowlem
d Co. V. Dunne, 81 L. J. K.B. 777; [1912]
2 K.B. 136; [1912] W.C. Eep. 298; 106 L. T.
611— C.A.
Per Cozens-Hardy, M.E. : It is competent
for the County Court Judge, however, to alter
an award subsequently to his making it
verbally in Court, but prior to its being
signed, sealed, and filed in accordance with
rule 28. 7b.
Costs of Obtaining Award — Bankruptcy —
Preferential Payment.] — The costs of obtain-
ing an award under the Workmen's Compen-
sation Act, 1906, are not payable in priority
to all other debts in a bankruptcy. Jinks,
In re ; Trustee, ex parte, 112 L. T. 88 ; 58 S. J.
741— D.
12. Bankruptcy of Employer or Winding up
of Employing Company.
See also Vol IX. 2217.
Employer Insured against Liability in
Respect of Workman — Bankruptcy — Rights of
Workman.] — Section 5, sub-section 1 of the
Workmen's Compensation Act, 1906, enacts
that " Where any employer has entered into
a contract with any insurers in respect of any
liability under this Act to any workman, then,
in the event of the employer becoming bank-
rupt, . . . the rights of the employer against
the insurers as respects that liability shall,
... be transferred to and vest in the work-
man, and upon any such transfer the insurers
shall have the same rights and remedies and
be subject to the same liabilities as if they
were the employer, so however that the in-
surers shall not be under any greater liability
to the workman than they would have been
under to the employer." The effect of this
section is to give to the workman a right to
enforce the policy against the insurance com-
pany, in substitution for the right which he
possessed before the Act of proving against the
estate of a bankrupt employer. The section
does not give the workman merely an addi-
tional right or, in other words, an option
either to prove against the bankrupt employer's
estate or to claim against the insTirance com-
pany. Craig v. Royal Insurance Co., 84 L. J.
K.B. 333; [1915] W.C. & I. Eep. 139;
112 L. T. 291 ; [1915] H. B. R. 57— Atkin, J.
Employer and Insurer Insolvent — Work-
man's Right of Proof. 1 — A workman was re-
ceiving compensation from his employer on
account of an accident arising out of and in
the course of his employment. The employer
2005
WO KK -MEN'S COMPENSATION.
2006
coiupauy w.ib insured against workmen's com-
pensation claims with an insurance company.
The employer company became insolvent, and
shortly afterwards the insurance company also
became insolvent. It being unlikely that the
insurance company would pay any dividend at
all, the workman sought to prove for his whole
claim in the liquidation of the employer com-
pany, and as to 100/. thereof as a preferential
payment : — Held, that there was no right td
preferential payment, and that the workman's
right of proof in the liquidation of the employer
company was impliedly taken away by sec-
tion 5, sub-sections 1 and 2 of the Workmen's
Compensation Act, 1906, and that his only
remedy was proof against the insurance
company notwithstanding their insolvency.
Pethick, Dix & Co., In re; Burrows v. The
Company, 84 L. J. Ch. 285; [1915] 1 Ch. 26;
[1915] W.C. & I. Eep. 5; 112 L. T. 212;
[1915] H. B. K. 59; 59 S. J. 74— Neville, J.
Costs of Award — Whether a Preferential
Debt.] — See Jinks, In re; Trustee, ex parte,
ante, col. 2004.
Winding-up of Company — Insurance — Lia-
bility of Insurers.] — A colliery company were
members of the respondent company, and as
such members were entitled to an indemnity
against all proceedings, costs, damages, claims,
and demands in respect of compensation result-
ing from any accident to their workmen. By
the articles of association, " Whenever a mem-
ber's protection has been determined ... he
shall not be entitled to any indemnity in
respect of any accident." The colliery com-
pany made default in payment of a call, and
the respondent company removed their name
from the list of protected mines and works.
The colliery company was afterwards wound
up. The respondent company had become
liable to pay an indemnity to the colliery com-
pany in respect of an accident to the appellant,
one of their workmen, which occurred while
the colliery company were still members of the
respondent company : — Held, that the clause
in the articles of association referred to acci-
dents happening after the protection had been
determined, not to accidents which had hap-
pened while it was existing, and that on the
winding up of the colliery company the respon-
dent company were liable to pay compensation
to the appellant under section 5 of the Work-
men's Compensation Act, 1906. Judgment of
the Court of Appeal ([1913] W.C. & I. Rep. 1)
reversed. Daff v. Midland Colliery Owners'
Mutual Indemnity Co., 82 L. J. K.B. 1340;
109 L. T. 418; 20 Manson, 363; 57 S. J. 773;
29 T. L. R. 730— H.L. (E.)
Winding-up Proceedings Commenced — In-
surance Policy — Arbitration Clause — Dispute —
Subrogation — Award under Policy — Condition
Precedent to Right of Action, i — A girl was
employed by a company, and in the course of
her employment met with a serious accident.
The company did not dispute their liability,
and paid compensation until winding-up pro-
ceedings were' conmienced. They had a policy
of insurance which contained a clause that any
dispute between the insured and the insurers
should be referred to arbitration under the
Arbitration Act, 1889, and that an award in
favour of the insured should be a condition
precedent to any right of action against the
insurers. The girl applied to the County
Court under section 5, sub-section 1 of the
Workmen's Compensation Act, 1906, for an
order that the insurers should continue the
payment of compensation. The insurers denied
liability on the ground that the policy had
become invalid through a breach of its con-
ditions by the employers : — Held (affirming
the County Court Judge, who decided that
there was a dispute between the parties, and
that in the circumstances he had at present
no jurisdiction in the matter), that section 5,
sub-section 1 of the Act of 1906 merely enabled
the applicant, by way of subrogation, to stand
in the position of the employers, and that,
consequently, until there had been a sub-
mission to arbitration under the Arbitration
Act, 1889, and an award, as provided by the
policy, the applicant was not entitled to claim
any payment from the insurers. King v.
Phoenix Assurance Co., 80 L. J. K.B. 44;
[1910] 2 K.B. 666; 103 L. T. 53— C. A.
Commuted Sum — Order for Payment out
of Assets — Receiyer and Liquidator — Preferen-
tial Payment.] — On an application under sec-
tion 5 of the Workmen's Compensation Act,
1906, the County Court Judge ordered the
liquidator of a company in voluntary liquida-
tion to pay to the applicant the commuted sum
of lOOL in lieu of a weekly payment ordered
to be paid under a former award : — Held, that
any question relating to the preferential pay-
ment of this sum nmst be decided in the
winding-up, and was not the subject of appeal
under the Workmen's Compensation Act,
1906. Hotner v. Gough, 81 L. J. K.B. 261;
[1912] 2 K.B. 303; [1912] W.C. Rep. 30;
105 L. T. 732— C. A.
Appeal — Jurisdiction.] — Semble, that
under section 5, sub-section 3 of the Work-
men's Compensation Act, 1906, the County
Court Judge's jurisdiction was limited to
assessing the lump sum and that he had no
jurisdiction to order payment ; but as this
objection was not taken before the County
Court Judge the Court of Appeal could not
entertain it. 7b.
13. Claims Under and Independently
OF Act.
" Proceedings independently of this Act" —
Receipt Referring to Employers' Liability Act,
1880 — Subsequent Death of Workman — Claim
by Dependants.] — A workman who was injured
by accident arising out of and in the course
of his employment through the breaking of a
chain was paid a sum of money by his
employers and gave a receipt for the same as
" being in full satisfaction and liquidation of
all claims under the Employers' Liability Act,
1880, and the common law, in respect of
injuries, whether now or hereafter to become
manifest, arising directly or indirectly from
an accident which occurred to " him on a
specified date. Shortly afterwards the work-
man died, and his dependants claimed com-
2007
WOEKMEN'S COMPENSATION.
2008
pensation under the Workmen's Compensation
Act, 1906 : — Held, that there had been no
exercise by the workman of the option con-
ferred upon him by section 1, sub-section 2 (6)
of the Act; and that, therefore, his dependants
were only barred from recovering under the
Act to the extent of the benefits received bv
him. Howell v. Bradford. 104 L. T. 433^
C.A.
Res Judicata — Finding in Arbitration — Sub-
sequent Action at Common Law.] — In an
application under the Workmen's Compensa-
tion Act, 1906, to end or diminish compensation
payable to a minor workman, the arbitrator
found that the workman had agreed to accept
compensation at a certain rate, and reduced
the amount. The workman having thereafter
sued his employers at common law for damages
for his injury and for setting aside the arbi-
trator's finding that he had agreed to accept
compensation, the defenders, on the ground
that the arbitrator's decision was final on
questions of fact, pleaded that the matter was
res judicata. The Court repelled the plea.
M'Feetridge v. Stewarts and Lloyds, [1913]
S. C. 773— Ct. of Sess.
Action by Widow for Damages under Fatal
Accidents Act, 1846 — Verdict for Employers on
Ground for Contributory Negligence — Action
" for injury caused by any accident " — Assess-
ment of Compensation by Judge.] — An action
under the Fatal Accidents Act, 1846, is an
action brought to recover damages " for injury
caused by any accident "' within the meaning
of section 1, sub-section 4 of the Workmen's
Compensation Act. IQOfi. Potter v. Welsh d-
Sons, Lim..83 L. J. K.B. 1852; [1914] 3 K.B.
1020 ; [1914] W.C. & I. Eep. 607 ; 112 L. T. 7 ;
80 T. L. R. 644— C.A.
A workman whilst employed in moving a
trolley through a doorway received a severe
blow on the head and also a jagged wound on
his tongue by reason of a tooth being forced
through it. He did not consider the injury
serious at the time. He mentioned it to his
foreman, but no written notice of the accident
was given, and he continued at work. Cancer
of the tongue supervened, but his doctor did
not inform him of the nature of the trouble.
He remained at work until a week before
his death, which took place in July, 1913,
the accident having happened the previous
January. His widow brought an action under
the Fatal Accidents Act, 1846, against his
employers, but the jury gave a verdict for the
defendants on the ground of contributory
negligence. The plaintiff then applied to
Channell, J., before whom the action was
tried, to assess compensation under section 1,
sub-section 4 of the Workmen's Compensation
Act, 1906. His Lordship did so, holding that
the action was within sub-section 4 of section 1
of the Act, and that the deceased had acted
reasonably in not giving notice of the accident
to the employers. The Court of Appeal
af&rmed Channell, J., on the first point, but
reversed him on the second point on the ground
that, as the injury was neither latent nor
trivial, no " reasonable cause " was shewn
within section 2 of the Act for the failure to
give notice of the accident, and that therefore
the claim to compensation failed. 7b.
Webster v. Cohen ([1913] W.C. & I. Rep.
268; 29 T. L. R. 217) and Clapp v. Carter
([1914] W.C. & I. Rep. 80) applied. 7b.
Payment of Maximum Amount to Depen-
dants of Deceased Workman — No Claim under
Act by Widow — Subsequent Action by Widow
under Fatal Accidents Act, 1846.] — A workman
was killed by accident arising out of and in
the course of his employment. He left a
widow and six children dependent on him.
His employers admitted that they were liable
to pay compensation under the Workmen's
Compensation Act, 1906, and paid into Court
300Z., the maximum amount for which they
were liable under that Act, and that amount
was invested on behalf of the six children.
Before any step had been taken under the
Act of 1906, a letter had been sent on behalf
of the widow to the employer stating that she
proposed to claim damages under the Fatal
Accidents Act, 1846; but she was afterwards
added, though not at her own request, as a
claimant in the proceedings under the Act of
1906. She was throughout cognisant of the
proceedings under that Act, she approved of
and concurred in the application for the invest-
ment of the 300L, attended at the hearing
thereof, and thereat renounced her rights in
that sum in favour of her children, and the
award was made with her consent. The
widow subsequently sued the employers for
damages under the Fatal Accidents Act, 1846,
alleging that it was in consequence of their
negligence that her husband was killed : —
Held, that, by virtue of section 1, sub-
section 2 (b) of the Act of 1906, the action was
not maintainable, inasmuch as the employers,
having with the knowledge and consent of the
widow paid the maximum amount of com-
pensation under that Act, were not liable to
paj' her compensation independently of that
Act. Codlinq v. Mowlem <{■ Co. {No. 1),
83 L. J. K.B. 1727; [1914] 3 K.B. 1055;
[1914] W.C. k I. Rep. 579; 111 L. T. 1086;
58 S. J. 783: 30 T. L. R. 677— C.A.
Decision of Atkin, J. (83 L. J. K.B. 445;
[1914] 2 K.B. 61; [1914] W.C. & I. Rep. 1),
affirmed. 7b.
" Recovery " of Compensation from Em-
ployers— Acceptance of Compensation under
Reservation of Claims against Third Parties —
Competency of Action against Third Parties.]
— An injured workman claimed compensation
from his employers in respect of an accident.
His right to compensation was admitted, and
pa3'ments were made for which he granted
receipts which stated that he had " elected
to take compensation under the Workmen's
Compensation Act." They further bore to
be granted " under reservation of my claims
against third parties," and he agreed with
his employers to repay the sums received
from them if he recovered damages from the
third parties whom he alleged to be respon-
sible for the accident. In an action of
damages by the workman against these third
parties, — Held, that he had not '" recovered "
compensation in the sense of section 6 of the
Workmen's Compensation Act, 1906, so as to
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WORKMEN'S COMPENSATION.
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be barred from pursuing the action. Wright
V. Lindsay, [1912] S. C. 189— Ct. of Sess.
Injury through Negligence of Third
Person.] — The plaintiff, wlio was employed by
a colliery company, occupied himself in his
leisure time in the cultivation of a plot of land
as a farmer. In the course of his work for the
colliery company he was injured by accident
owing to the negligence of the defendants. He
was paid compensation by his employers under
the Workmen's Compensation Act, 1906, but
he claimed to be entitled to recover from the
defendants the loss he had sustained in his
capacity of farmer : — Held, that, having
received compensation, he was precluded by
section 6 of the Act from maintaining an
action for damages arising out of the same
injurv. Woodcock v. London and North-
Western Railwaij, 82 L. J. K.B. 921; [1913]
3 K.B. 139; [1913] W.C. & I. Eep. 563;
109 L. T. 253; 29 T. L. R. 566— Rowlatt, J.
The word " injury " in section 6 of the
Workmen's Compensation Act, 1906, means
physical injury or hurt, and is not a trans-
lation of the juristic term "injuria." lb.
A workman employed by a colliery com-
pany as brakesman on a branch line of railway
belonging to his employers, was incapacitated
for work as the result of an accident and
received compensation under the Workmen's
Compensation Act, 1906, for three years, until
he died from his injuries. His father there-
upon brought an action of damages in respect
of his son's death, against a railway company,
owing to whose fault, he averred, the accident
had happened. The Court dismissed the
action, holding that the pursuer's claim was
excluded by section 6 of the Workmen's
Compensation Act, 1906, on account of his
son having recovered compensation from his
employers. Gray v. North British Railway,
[1915] S. C. 211; [1915] W.C. & I. Rep. 460
— Ct. of Sess.
14. Remitting Case to Arbitrator.
Refusal of Arbitrator to State Case.] — In
proceedings under the Workmen's Compensa-
tion Act, 19U6, the arbitrator found that a
workman's death resulted from injuries sus-
tained by him owing to a fall from a ladder,
and awarded compensation. A medical certi-
ficate which was produced stated the cause of
death to have been appendicitis-peritonitis.
The arbitrator refused to state a Case for the
opinion of the Court on the question whether
the death of the deceased " was the result of
an accident arising out of and in the course
of his employment," on the ground that the
question was one of fact and not of law : —
Held, that the proper question was " whether
there was evidence upon which it could com-
petently be found that the death of the work-
man was the result of an accident arising out
of and in the course of his employment "; and
case remitted to the arbitrator to state a Case
on this question. Euman v. DaJziel d Co.,
[19121 S. C. 966; [1912] W.C. Rep. 328—
Ct. of Sess.
Power to Remit Case to Arbitrator.] — A
Court is entitled to remit a case to an arbi-
trator if it has been stated ambiguously or
incompletely, in order to obtain further
information, but it is not entitled to do so in
order to obtain evidence which will enable the
Court to substitute itself for the arbitrator.
Lendrum v. Ayr Steam SJiipping Co., 84 L. J.
P.C. 1; [1915] A.C. 217; [1914] W.C. &
I. Rep. 438; 111 L. T. 875; 58 S. J. 737;
30 T. L. R. 664— H.L. (Sc.)
15. Costs.
See also Vol. IX. 2256.
Costs Ordered to be Paid by Successful
Applicant — Severable Issues.] — Where a
County Court Judge, sitting as arbitrator
under the Workmen's Compensation Act, 1906,
has made an award in favour of a workman's
claim for compensation, it is not competent
for him to order the workman to pay the
employer's costs of and incident to the arbi-
tration ; but he must exercise his discretion
judicially as to the payment of costs. Evans
V. Givauncaegurwen Colliery Co., 106 L. T.
r)13; [1912] W.C. Hep. 215— C. A.
Where in applications under the Act there
is more than one issue to be determined it
is competent for the learned County Court
Judge to treat such issues as severable, and
to order the costs of an issue upon which a
party has failed to be paid, or to be set off
against the remainder of the costs. lb.
Enquiry as to Adequacy of Sum Payable —
Order for Successful Party to Pay Costs — No
Misconduct Proved.] — Assuming that a County
Court Judge has jurisdiction as to the costs
of an enquiry, under the Workmen's Com-
pensation Act, 1906, Sched. II. clause (9) (d),
as to recording a memorandum of an agree-
ment for redemption of a w^eekly payment, he
cannot order a successful party against whom
no misconduct is proved to pay the costs of
the other partv. Kierson v. Thompson it- Sons,
Lim., 82 L. J. K.B. 920; [1913] 1 K.B. 587;
[1913] W.C. & I. Rep. 140; 108 L. T. 236;
57 S. J. 226; 29 T. L. R. 205— C.A.
Set-off of Costs — Validity of Award — Right
to Contest — Receipt of Weekly Payment —
Approbation and Reprobation.] — Where an
award has been made under the Workmen's
Compensation Act, 1906, for payment of a
weekly sum as compensation to a workman,
and the aw-ard contains an order for payment
of certain costs by the workman with liberty
to the employers to set off such costs at a
certain rate per week against the weekly sum
payable for compensation, the workman cannot,
after receiving the weekly sum payable under
the award, contest the jurisdiction of the arbi-
trator to order the costs to be set off and
deducted from the weekly payments. The
award is entire, and the workman cannot
contend that part of it is good and part bad.
Johnson v. Neioton Fire E-rtinguisher Co.,
82 L. J. K.B. 541; [1913] 2 K.B. Ill: [1913]
W.C. & I. Rep. 352; 108 L. T. 360— C.A.
Costs of Appeal — Costs of Arbitration — Set-
off — Jurisdiction.] — The Court of Appeal
cannot, after judgment has been given speci-
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WOEKMEN'S COMPENSATION.
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fically dealing with costs, alter their judgment
by ordering that the costs of the appeal shall
be costs in an arbitration in the County Court
under the Workmen's Compensation Act,
1906, so as to enable the appeal costs to
be set o£E against costs in the arbitration.
Barnett v. Port of London Authority (No. 2),
82 L. J. K.B. 918 ; [1913] W.C. & I. Rep. 414 ;
108 L. T. 944; 67 S. J. 577— C.A.
Costs of Obtaining Award — Wliether Pre-
ferential Debt.] — The costs of obtaining an
award under the Workmen's Compensation
Act, 1906, are not payable in priority to all
other debts in a bankruptcy. Jinks, In re;
Trustee, ex parte, 112 L. T. 88; 58 S. J. 741
— D.
16. Appeal.
See also Vol. IX. 2257.
Accident before Commencement of Act —
Reference to Medical Referee — Appeal to House
of Lords.] — No appeal lay to the House of
Lords from the Court of Session in Scotland
in a proceeding under the Workmen's Com-
pensation Act, 1897. The Act of 1906 by
Schedule II. section 17 (b) , gave an appeal
to the House of Lords in cases from Scotland
under that Act, and by section 16, sub-
section 2, repealed the Act of 1897, but
provided that that Act should "continue to
apply to cases where the accident happened
before the commencement of this Act, except
to the extent to which this Act applies to
those cases." Section 16, sub-section 1 of the
Act of 1906 provided that that Act, " except
so far as it relates to references to medi-
cal referees, and proceedings consequential
thereon, shall not apply to any case where
the accident happened before the commence-
ment of this Act." In a case where an
accident happened after the passing of the
Act of 1906, but before it came into operation,
and after it had come into operation the
Sheriff directed a reference to a medical
referee, — Held, that a subsequent appeal from
the award of the Sheriff to the Court of Session
was not a " proceeding consequential on " the
report of the medical referee, so as to make the
Act of 1906 apply to the case and give an
appeal to the House of Lords from the decision
of the Court of Session. Mackay v. Rosie,
[1912] W.C. Rep. 41 ; 105 L. T. 682; 56 S. J.
87— H.L. (Sc.)
Review of County Court Decisions by Court
of Appeal.] — The function of the Court of
Appeal in reviewing the decisions of the
County Court explained. Wilmerson v. Lynn
and Hamburg Steamship Co., 82 L. J. K.B.
1064; [1913] 3 K.B. 931; [1913] W.C. &
I. Rep. 633; 109 L. T. 53; 57 S. J. 700;
20 T. L. R. 652— C.A.
Appeal from Order — Evidence on Commis-
sion.]— See Taylor v. Cripps. ante, col. 1975.
Order for Detention of Ship.] — An order
made by a County Court Judge for the
detention of a ship under section 11 of the
Workmen's Compensation Act, 1906, is only
in aid of an arbitration under the Act, and
not part of it. An appeal from such an order,
therefore, does not lie to the Appeal Court
under the Act, but to the Divisional Court in
the usual way, notwithstanding Schedule II.
clause 4, the application of which is limited
by section 1, sub-section 3 of the Act: — So
held by Cozens-Hardy, M.R., and Fletcher
Moulton, L.J. {dissentiente Farwell, L.J.).
Panagotis v. " Pontiac " (Owners), 81 L. J.
K.B. 286; [1912] 1 K.B. 74; [1912]
W.C. Rep. 74; 105 L. T. 689; 12 Asp. M.C.
92; 56 S. J. 71; 28 T. L. R. 63— C.A.
Order on Reference from Registrar.] — When
a County Court -Judge makes an order upon
a matter referred to him by a Registrar of
the County Court on his refusal to record a
memorandum of agreement under clause 9 (d)
of Schedule II. to the Workmen's Compensa-
tion Act, 1906, an appeal from that order lies
direct to the Court of Appeal under clause 4 of
Schedule II., and not to the Divisional Court.
Panagotis v. " Pontiac " (Owners) (81 L. J.
K.B. 286; [1912] 1 K.B. 74; [1912] W.C. Rep.
74) distinguished. Bonney v. Hoyle S Sons,
Lim., 83 L. J. K.B. 541; [1914] 2 K.B. 257;
[1914] W.C. & I. Rep. 565; 110 L. T. 729;
12 L. G. R. 358 ; 58 S. J. 268 ; 30 T. L. R. 280
—C.A.
Appeal by Workman against Part of Award
— Acceptance by Workman of Payment under
Award.] — A workman cannot appeal against
any part of an award made under the Work-
men's Compensation Act, 1906, after he has
accepted payment of compensation under it.
Johnson v. Newton Fire Extinguisher Co.
(82 L. J. K.B. 541 ; [19131 2 K.B. Ill ; [1913]
W.C. & I. Rep. 352) followed. Jones v.
Wi7ider, [1914] W.C. & I. Rep. 37— C.A.
Quantum of Compensation.] — In claims for
compensation under the Workmen's Compen-
sation Act, 1906, it is for the County Court
Judge to find the quantum of compensation to
be awarded, and the Court of Appeal will not
interfere with his award unless there has been
misdirection or no proper exercise of his judicial
discretion. Cheverton v. Oceanic Steam Navi-
gation Co., [1913] W.C. & I. Rep. 462;
29 T. L. R. 658— C.A.
Vn. REVIEW AND REDEMPTION OF
WEEKLY PAYMENTS.
See also Vol. IX. 2260.
1. Review.
a. Jurisdiction.
Recorded Memorandum — Review.] — When a
memorandum has been recorded in terms of
the Workmen's Compensation Act, 1906, the
only method by which the employer can relieve
himself of the liability imposed upon him by
that memorandum is by an application for
review. Wilsoyis and Clyde Coal Co. v. Cairn-
duff, [1911] S. C. 647— Ct. of Sess.
Condition Precedent to Jurisdiction of Arbi-
trator.]— Where a workman is in receipt of a
weekly payment by way of compensation
under the Workmen's Compensation Act, 1906,
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WORKMEN'S COMPENSATION.
2014
either under the award of an arbitrator or
under a recorded agreement, it is not a con-
dition precedent to the jurisdiction of the
arbitrator to review the weekly payment that
a question should have arisen between the
employer and workman before the application
for a review was launched. Tyne Tees Ship-
ping Co. V. Whilock, 82 L. J. K.B. 1091;
[1913] 3 K.B. 642; [1913] W.C. & I. Rep.
.579; 109 L. T. 84; 57 S. J. 716--C.A.
Award by Committee — Application to County
Court to Review — Refusal to Hear Application
— Appeal.] — An application was made to a
County Court .Judge to review an award made
by a committee of employers and workmen
under schedule 2, paragrajjh 1 of the Work-
men's Compensation Act, 1906. The Judge
refused to hear the application on the ground
that, the award having been made by a
committee, he had no jurisdiction to review
it : — Held, that the Judge had refused to
entertain jurisdiction, and an appeal from his
decision lay to the Divisional Court and not to
the Court of Appeal. Howarth v. Samuelson,
104 L. T. 907— C. A.
Where an award of a weekly payment
as compensation to a workman has been made
by a committee representative of an employer
and his workmen under the Second Schedule
of the Workmen's Compensation Act, 1897, a
memorandum of which has been duly recorded
in the County Court register, the workman
is entitled, under clause 12 of the First
Schedule, to have such award reviewed by
the County Court Judge, provided that he
has objected to the settlement of the matter
by the committee by notice in writing sent
to the other party before the committee meet
to consider the matter, inasmuch as the review
of such award is a new matter under the Act.
Rex V. Templer; Howarth, Ex parte, 81 L. J.
K.B. 805; [1912] 2 K.B. 444; [1912]
W.C. Rep. 209; 106 L. T. 855; 56 S. J. 501;
28 T. L. R. 410— C. A.
Termination of Weekly Payment — Jurisdic-
tion.]— In an application by employers for a
review of weekly payments made under an
agreement — whereby the employers agreed to
pay the injured man a certain sum per week
until the same should be ended, diminished,
increased, or I'edeemed, in pursuance of the
Workmen's Compensation Act, 1906 — on the
ground that the incapacity of the man for
work had ceased, the County Court Judge
made an order terminating the agreement and
the weekly payments : — Held, that the order
was technically erroneous because the Judge's
jurisdiction was merely to say that the weekly
payments should be " ended, diminished, in-
creased, or redeemed," and not that the agree-
ment should be terminated. Appeal dismissed
by consent of parties, the appellant not
desiring a remit on the point of form. Taylor
V. London and North-Western Railway,
81 L. J. K.B. 541; [1912] A.C. 242; [1912]
W.C. Rep. 95; 106 L. T. 354; 56 S. J. 323;
28 T. L. R. 290— H.L. (E.)
Medical Referee — Finality of Report.] — In
an application for review of compensation
paid to a miner who had received an injury
resulting in the loss of an eye, a remit was
made to a medical referee under paragraph 15
of the First Schedule to the Workmen's Com-
pensation Act, 1906. The referee reported
that the miner was "as fit as any other one-
eyed man to resume his work under ground."
The miner applied to have the question of
his earning capacity tried, but the arbitrator
refused the application and ended the com-
pensation, on the ground that the referee's
report was final, and that it meant that the
miner's incapacity had ceased : — Held, that
the report, though final as to the miner's
physical condition, was not final as to his
earning capacity, and the case was remitted
to the arbitrator to hear evidence on this point.
Arnott V. Fife Coal Co., [1911] S. C. 1029—
Ct. of Sess.
Prospective Award — Termination of Weekly
Payment at Future Date.] — It is not com-
petent for a County Court Judge, sitting as
arbitrator under the Workmen's Compensation
Act, 1906, to prophesy as to how long the
incapacity for work of a workman, who has
been injured by accident arising out of and in
the course of his employment, will last, and
to anticipate what may happen in the future
in the workman's condition. It is for the
employer who desires to obtain on the ground
of change of circumstances a review of the
weekly payment which has been made payable
to the injured workman to establish that such
change has taken place, and the onus of so
proving ought not to be shifted to the work-
man. Baker v. Jewell (79 L. J. K.B. 1092;
[1910] 2 K.B. 673) applied. Walton v. South
Kirkby, Featherstone, and Hemsworth Col-
liery, [1912] W.C. Rep. 383; 107 L. T. 337
— C.A.
Cesser of Workman's Incapacity for Work —
Ending Weekly Payment — Suspensory Award
Unnecessary.] — AYhere a County Court Judge
sitting as arbitrator under the Workmen's
Compensation Act, 1906, has found — there
being ample evidence to justify his finding —
that a workman who has been injured by
accident arising out of and in the course of his
employment and has been awarded compen-
sation in respect thereof is no longer suffering
from any incapacity resulting from the acci-
dent, that is a finding of fact with which the
Court of Appeal has no jurisdiction to inter-
fere ; and the Judge has power to make an
order ending the liability of the employers to
make any further weekly payments under the
original award, and is not bound to qualify
his finding of fact by deciding that he ought
to make a suspensory award. Wheeler,
Ridley <(• Co. v. Dawson, [1912] W.C. Rep.
410; 107 L. T. 339— C.A.
b. Notice of Application for Review.
Service of Notice on "all persons interested"
— Service on Personal Representative.! — The
notice of an application for variation that it is
necessary in such a case by rule 58, sub-rule 3
of the Workmen's Compensation Rules. 1907,
to serve upon " all persons interested " may
be served upon the personal representative of
a dead "dependant." Ivey v. Ivey, 81 L. J.
2015
WORKMEN'S COMPENSATION.
2016
K.B. 819; ri912] 2 K.B. 118: [191'2]
W.C. Rep. 293; 106 L. T. 485— C.A.
Interest of Dependant not Part of his Per-
sonal Estate.] — The interest of a "dependant"
in compensation awarded him under the Act
does not pass to his personal representative on
his death as part of his personal estate. lb.
c. Grounds for Review.
Subsequent Change of Circumstances —
Death of one "Dependant" — Variation of
Award — Apportionment between other Depen-
dants.]— The death of one of several " depen-
dants " who are beneficiaries under an award
under the Workmen's Compensation Act, 1906,
constitutes such a " variation of the circum-
stances " of the other " dependants " as will
justify the Court, if it think proper, in altering
the award under the provisions of clause 9 of
Schedule I. of the statute. Ivetj v. Ivey,
ante, col. 2014.
Partial Incapacity — " Able to earn " — Work-
man Fit for Light Work.] — In an applicatim
at the instance of the employers of a workman
to end or diminish the weekly payments of
compensation due under a recorded memoran-
dum of agreement, it was proved that about
nine months after the accident (by which the
workman, a labourer, had been wholly incapa-
citated and for which he had been receiving
compensation at the rate of 12s. weekly) the
employers offered him light work as a labourer,
which he refused, though he was able for the
work, and though it would have aided his
recovery. Six months later, at the date of
the application for review, the workman was
proved to be " able for light work such as that
of a messenger or light porter or other occupa-
tion, where he would not require to do the
heavy work of a labourer," and the employers
renewed their previous offer of employment.
There was no evidence of how much the work-
man was capable of earning at such work as
he was able to perform. The arbitrator having
reduced the compensation to 8s. weekly, the
workman appealed on the ground that there
was no evidence to justify the award. The
Court sustained the award. Proctor v.
Robinson (80 L. J. K.B. 641; [1911] 1 K.B.
1004) and Cardiff Corporation v. Hall (80 L. J.
K.B. 644; [1911] 1 K.B. 1009) considered.
Carlin v. Stephen, [1911] S. C. 901— Ct. of
Sess.
Per Lord Salvesen : Incapacity for the
purposes of the "Workmen's Compensation Act
is primarily physical incapacity ; it does not
include inability to get employment which
arises from something not personal to the
workman. lb.
One-armed Man — Ability to Do Light Work
—No Attempt to Get Work— Particular Kind
of Light Work — "Suitable employment" —
Evidence — Local Knowledge of County Court
Judge. ^ — In 1909 a labourer lost his right arm
in his employment and was in receipt of lis.
a week compensation. In 1914 his employers
applied to review. Shortly after his accident
the man had applied for work once to his
employers and was refused. Since then he
had never attempted to get any work. He
married three years after his accident, and
there was evidence that he was a strong
healthy young man capable of light work, but
there was no evidence of any particular light
work which he could do, or that suitable work
was obtainable. The County Court Judge
found that he was capable of doing some kinds
of light work which were obtainable in the
district in which he lived, and, as he had
never attempted to obtain any work, reduced
his compensation to 7s. 6d. a week. On
appeal. — Held, that the facts proved, coupled
with his local knowledge, justified the conclu-
sion of the County Court Judge. Silcock v.
Golightly, 84 L. J. K.B. 499; [1915] 1 K.B.
748; [1915] W.C. & I. Rep. 164; 112 L. T.
800— C.A.
Chance of Obtaining Light Work — Burden
of Proof.] — A lime washer employed by a firm
of builders, sustained injuries to his left foot
and ankle by the breaking of a ladder, and
received weekly payments as compensation
under the Workmen's Compensation Act,
1906, on the footing of total incapacity. On
an application by the employers for a review
and reduction of the weekly payments, the
County Court Judge found that the workman
was suffering from bad fiat foot as a result
of the accident, which prevented him from
following his ordinary employment or from
doing the full work of an ordinary labourer
or able-bodied man, but that he could do some
light work if he could obtain it; and, there
being no evidence that the man could obtain
any such work, the Judge refused the appli-
cation : — Held, that the burden was on the
employers to establish what particular kind of
light work the man was able to perform,
and to prove either that they had offered him
work of that kind or that there was a chance
of his obtaining such work in the district if
he applied for it ; and that as they had failed
to discharge the burden, the decision of the
Countv Court Judge was right. Proctor v.
Robinson, 80 L. J. K.B. 641; [1911] 1 K.B.
1004— C.A.
Where on an application by the employer
to review the amount of weekly payments
under an award the medical evidence finds
that the workman is able to do any form of
light work, it is not necessarily incumbent on
the employer to shew that he has offered to
provide such work or that it can be obtained
in the neighbourhood, and it is competent to
the arbitrator to reduce the amount, notwith-
standing evidence by the workman that he
has made some unsuccessful attempts to obtain
such work : — So held (dissentiente Cozens-
Hardy, M.R.). Clark v. Gas Light and Coke
Co. (21 T. L. R. 184), Proctor d- Sons v.
Robinson (80 L. J. K.B. 641 ; [1911] 1 K.B.
1004), and Radcliffe v. Pacific Steam Aavnia-
tion Co. (79 L. J. K.B. 429; [1910] 1 K.B.
685) discussed. Cardiff Corporation v. Hall.
80 L. J. K.B. 644; "[1911] 1 K.B. 1009;
104 L. T. 467; 27 T. L. R. 339— C.A.
Partial Incapacity — Inability to Obtain Suit-
able Employment.] — An averment, in an appli-
cation to review weekly payments which had
been awarded as compensation for partial
incapacity resulting from injury by accident.
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WOKKMEN'S COMPENSATION.
2018
that the injured man, who had been dismissed
from his employment, was unable to obtain
suitable work within reasonable distance (^f
the locality in which he had been employed, —
Held, to be a relevant averment for enquiry.
Macdonald (or Duris) v. Wilsons and Clyde Coal
Co., 81 L. J. P.C. 188; [1912] A.C. 513;
[1912] W.C. Eep. 302; 106 L. T. 905;
56 S. J. 550; 28 T. L. E. 431— H.L. (Sc.)
Per Lord Shaw : Boag v. Lochwood
Collieries, Lim. ([1910] S. C. 51) was wrongly
decided. lb.
Light Work — Amount Workman Able to
Earn — Discretion.] — A workman having sus-
tained an injury received the full amount of
compensation for a time, and then the em-
ployer offered him some light work which he
refused to accept. The employer then applied
for a review with the object of diminishing
the weekly payments. It was proved that the
man was able to do light work, but there was
no evidence to shew the exact amount of wages
he would be able to earn. The County Court
Judge, acting partly on his own local know-
ledge, diminished the payments : — Held, that
the employer having established a case for a
review of the payments, the Judge had a
discretion to diminish the amount without
evidence of the actual sum the workman could
earn. Roberts d Ruthven v. Hall, [1912]
W.C. Eep. 269; 106 L. T. 769— C.A.
Offer of Light Work — Change of Circum-
stances.]— An unskilled dock labourer while
working at the docks met with a serious
accident which rendered him unable to do
the full work that he did before. For a con-
siderable time his employers paid compensation
to the workman under an agreement with him.
Subsequently they offered to take him on as a
labourer and give him 8s. a day and to find
him work for four or five days a week, but
they warned him that he must not take that as
a guarantee by them of perpetual employment.
The employers then applied under section 16
of the First Schedule to the Workmen's Com-
pensation Act, 1906, for an order to review
the weekly payment payable to the workman,
on the ground that there was a change in the
circumstances because of their offer of light
work to him : — Held, that, having regard
to the findings of the learned County Court
Judge that the workman was fit for light
work, and to the fact that the employers had
offered the same to him, his Honour ought
to have required evidence as to the probable
amount of the wages which the workman
could earn in order to ascertain what alteration
should be made in the weekly payment (if
any), and that therefore the case must go back
to the learned Judge. Gray, Dawes d Co. v.
Reed, [19131 W.C. & I. Eep. 127; 108 L. T.
63-C.A.
Partially Incapacitated Workman — Em-
ployer's Offer of Full Wages for Light Work
— Refusal of Offer — Suspension of Compensa-
tion.]— An injured workman, who had been
receiving compensation in pursuance of an
agreement with his employer, recovered from
his injuries sufiBciently to be fit for light work.
His employer thereupon offered him sucb
work, and offered to pay him therefor the
same wage as he had been earning before the
accident. The workman refused this offer and
presented for registration a memorandum of
the agreement with his employer. The Sheriff
refused to record the memorandum and ended
tiie compensation : — Field, first, that the work-
man was barred from receiving compensation
by his refusal of work, at full wages, suited
to his capacity; and secondly, that the proper
course for the Sheriff was to have recorded
the memorandum, but, in respect of the em-
ployer's offer to pay the workman full wages,
to have suspended compensation. Keevans v.
Miindy, [1914] S. C. 525— Ct. of Sess.
Registration of Agreement — Review —
Application by Employers for Termination
of Weekly Payments — Burden of Proof.]
— A collier in January, 1906, met with
an accident which caused permanent injury
to his right hand. His employers admitted
liability, and by agreement paid him half-
wages until August, 1908, when they found
him light work in the colliery at wages some-
what higher than his old wages. He was
first employed as a watchman on the surface,
and afterwards as a signalman underground.
He had to walk up a high hill to get to the
pit, and in April, 1910, he gave up work
because he was suffering from heart disease
and could not walk uphill. In January, 1911,
he obtained registration of the agreement
for compensation. His employers thereupon
applied under Schedule I. clause 12 of the
Workmen's Compensation Act, 1897, for a
review and termination of the weekly pay-
ments as from April, 1910. It was proved
that the heart disease was not caused by the
accident, and that the man's hand was useless
except for some special kind of light work.
The Count}' Court Judge declined to terminate
the agreement, but slightly reduced the weekly
payments : — Held (affirming his decision),
that the burden was on the employers to
prove that the workman was not now under
any incapacity by reason of the accident, and
that that burden was not discharged by shew-
ing that since the accident he was earning
wages equal to or greater than his old wages.
Cory V. Hughes, 80 L. J. K.B. 1307; [1911]
2 K.B. 738; 105 L. T. 274; 27 T. L. E. 498—
C.A.
Mental Infirmity Supervening — In-
sufficient Medical Evidence to Prove Complete
Recovery.] — A miner met with an accident,
causing injury to his back and involving
complete incapacity for nearly two years,
at the end of which he was put on light
work on the sin"face. After a time he asked
to be allowed to try his old work again, but
owing to symptoms of mental infirmity he was
prohibited from descending the mine. The
employers applied to terminate or diminish the
compensation on tlie ground of recovery ; but
their medical evidence (inly dealt with the
workman's mental, and not his physical con-
dition, and the arbitrator was not satisfied with
it, and dismissed the application without
hearing the respondent's evidence : — Held,
64
•2019
WOKKMEX'S COMPENSATION.
2020
that he was justified in so doing. New
Monckton Collieries v. Toone, [1913] W.C. &
I. Rep. 425; 109 L. T. 374; 57 S. J. 753— C. A.
Incapacity at First Total, Then Partial —
Reduction in Weekly Payments.] — A work-
man, at first totally incapacitated by an
accident for the consequences of which the
employers accepted liability, was paid by them
half- wages for some months, when they sought
to reduce the weekly rate of payment on the
ground that total incapacity had ceased. The
workman applied for arbitration, and was the
only witness examined before the County
Court Judge. He proved that he had tried to
get employment and failed, and was admittedly
not actually in any emplo3'ment at the time of
his application. He did not, however, give any
estimate of what would be the value of his
services if employed. No evidence of any kind
was adduced by the employers. The County
Court Judge awarded the applicant, until
further order, a weekly sura which was equiva-
lent to half the wages he was earning up to
the time of the accident : — Held, that the
County Court Judge was within his jurisdiction
in making the award, and that it should be
affirmed. Osborne v. Tralee and Dingle Rail-
way, [1913] 2 Ir. E. 133; [1913] W.C. & I.
Rep. 391— C. A.
Permanent Partial Incapacity — Infant —
Offer of Suitable Work at Increased Wages —
Termination of Award.] — A workgirl, seven-
teen years old, employed in a factory, lost one
of the fingers of her left hand by accident while
attending to a machine, and obtained an
award of 3s. per week. Later the employers
applied to terminate this award, and offered
her suitable employment in their works, not
involving any danger through machinery, at
higher wages than her average wage before
the accident. The County Court Judge refused
to disturb the award : — Held, that as he had
not purported to exercise any discretion under
the proviso to Schedule I. (16), and as there
was no evidence upon which he could have
done so, the award ought to be terminated.
Clarke, Nicholls iC Coombes v. Knox, [1913]
W.C. & I. Rep. 664; 57 S. J. 793— C. A.
Partial Recovery.]— When a workman who
has been totally incapacitated, and has been
receiving full compensation in terms of the
Workmen's Compensation Act, 1906, partially
recovers and is earning a wage, a prima facie
case arises for reducing his compensation ; but
it is open to him to prove circumstances which
will warrant the arbitrator, in the exercise of
his discretion, in refusing to diminish the
compensation. The circumstance that the
compensation he has been receiving together
with the wage he is earning does not equal his
average weekly earnings before the accident
does not by itself justifv a refusal to diminish.
Pryde v. Moore d Co., [1913] S. C. 457;
[1913] W.C. & I. Rep. 100— Ct. of Sess.
Industrial Disease — Recovery — Susceptibility
to Recurrence.! — In an application by em-
ployers for the ending or diminishing of a
weekly payment it was proved that the work-
man, after being duly certified as suflfering
from miner's nystagmus (an industrial dis-
ease), was awarded compensation, that he had
" now completely recovered from this attack,"
but that he was susceptible to a recurrence of
the disease. It was not proved whether the
susceptibility was due to the original attack
or to constitutional predisposition, the evidence
being inconclusive : — Held, that as the work-
man had recovered from the original attack,
and as he had failed to discharge the onus
which lay on him of proving that his suscep-
tibility to recurrence of the disease was due
to that attack, the compensation fell to be
ended. Darroll v. Glasgotc Iron and Steel Co.,
[1913] S. C. 387 ; [1913] W.C. & I. Rep. 80
— Ct. of Sess.
Incapacity for Work — Physical Capacity —
Wage-earning Capacity.] — A miner who had
lost one eye by an accident and who had been
given work above ground and was receiving
partial compensation, was examined by a
medical referee, who reported that he was " as
fit as any other one-eyed man to resume his
work underground." The employers having
applied to have the compensation ended, the
arbitrator found that the miner had made
various applications for work underground
without success, and that he "is presently
working on the surface and is only able on
account of his injuries to earn 18s. a week,"
and dismissed the application. On appeal,
the Court refused to disturb the arbitrator's
finding. Arnott v. Fife Coal Co., [1912] S. C.
1262; [1912] W.C. Rep. 355— Ct. of Sess.
Unreasonable Refusal to Work — Medical
Advice.] — A bricklayer met with an accident
in the course of his employment and was in
receipt of compensation for some years. In
September, 1912, he was offered light work,
but refused it, and his own doctor then certified
that he was incapable of continuous work of
any sort. Thereupon the employers commenced
proceedings, asking, first, for the diminution
and, secondly, for the termination of the com-
pensation. Both applications came on for
hearing together. There was a serious conflict
of medical testimony, but the employers'
medical evidence was that the workman had
no physical disability which would prevent him
doing light work or beginning work as a brick-
layer, but was merely suffering from weakness
of will and a fixed but erroneous idea that he
was a chronic invalid. The County Court
Judge terminated the compensation. He found
that the workman had been offered light work
which he had unreasonably refused ; that an
average man suffering as the workman did
would long ago have gone back to work ; and
that, acting on unwise medical advice, the
man had behaved in an unreasonable manner.
He did not think the man was a malingerer,
and he agreed with the medical referee who
reported that the employers' medical evidence
gave the correct view of the man's condition,
and that a continuance of compensation was
likely to keep up that condition : — Held
(Cozens-Hardy, M.R. , dissenting), that on
these findings the County Court Judge was
justified in terminating the compensation.
Higgs d Hill, Lim. v. Unicume, 82 L. J. K.B.
2021
WORKMEN'S COMPENSATION.
2022
369; [1913] 1 K.B. 595; [19131 WC & I
Rep. 263; 108 L. T. 169— C.A.
Per Cozens-Hardy, M.R. : The County
Court Judge ought to have reduced the com-
pensation to Id. a week so as to allow the con-
flicting opinions of the doctors to be subjected
to the test of actual experiment. lb.
Per Hamilton, L.J. : There is no fixed rule
that a man acting on the advice of his doctor
cannot be held to have acted unreasonably.
Refusal to Undergo Surgical Operation.]— A
workman accidentally injured in the foot, and
thereby incapacitated, refused to undergo a
simple operation which it was reasonably
certain would have cured him. In so refusing
he acted on the advice of his own doctors, who
were of opinion that the proposed operation,
though devoid of danger, would be useless.
In an application for review of a payment of
compensation which he was receiving,— HeZd,
that he was precluded by his refusal from
claiming a continuance of the compensation
O'Neill V. Brown S Co.. [19131 S C 653-
[1913] W.C. & I. Rep. 235-Ct. of 'Sess. '
Report by Medical Referee of Fitness for
Work— Finality of Medical Referee's Report.]
—By agreement between a coal miner, who
had received an injury to his thumb and was
receiving compensation, and his employers, the
question of the workman's capacity to resume
his former employment was referred to a
medical referee under paragraph 15 of Sche-
dule I. to the Workmen's Compensation Act,
1906. The medical referee reported that the
workman was " quite fit to resume his ordinary
employment as a coal miner, having recovered
from'' the injury. The employers thereupon
applied to have the compensation ended, when
the workman lodged answers in which he
averred that having returned to work he had
ascertained " that his earning ability has been
considerably reduced from the effects of his
injury" and maintained that he was still
entitled to partial compensation. The arbi-
trator having ended the compensation, the
workman appealed and asked leave to lead
evidence in support of his averments -.—Held
dLsmissing the appeal, that as the medical
referee s report was final and was from its
terms conclusive as to the question raised by
the workman's averments, proof of these aver-
ments was inadmissible. Ball v Hunt
!?/ Y ^iil^\ ^^^: 1^1^12] A.C. 496) and
Macdonald (or Duns) v. Wilion.'^ and Chide Coal
Co. (81 L J. P.C. 188; [1912] A.C. 513) dis-
tinguished ; and ob.served that where a medical
referee's report is not from its terms conclu-
sive a proof may he admissible. Cray v
f,7''^^^T/'"°" ^°- ri912] S. C. 1267; [19121
W.C. Rep. 359-Ct. of Sess. -"
Whether a proof might not have been admis-
sible^ if the workman had averred that owing
to the consequences of the accident he had
been unable to obtain employment, qucp.re. lb.
Report of Medical Referee — Recovery of
Wage-earning Capacity— Termination of Com-
pensation— Suspensory Award.] -A workman
iost the sight of one eye by an accident arising
out of and in the course of his employment,
and received compensation from his employers
Upon a remit by consent to a medical referee
the referee reported that the workman had
recovered from his incapacity, and was fit for
work; and it was also in evidence that he had
been in fact employed at his former work at
his old rate of wages -.—Held, that there was
evidence on which the arbitrator was entitled
to terminate the compensation without makin"
a suspensory award. Jones v. Anderson
?fo^T "^J-^- ^^' ^^^^^^ W.C. & I. Rep. 151 ;'
112 L. T. 225; 59 S. J. 159; 31 T. L R 76
-H.L. (Sc.) ^-. ^. n. lb
Recovery from Injury— Supervening Incapa-
city — Onus of Proof.] — Under a remit by
parties to a medical referee to report on the
condition of a workman, who had been injured
and who was in receipt of compensation, the
referee reported that he was fit for his former
work. Thereafter the employers applied for
review of the compensation, which was opposed
by the workman on the ground that, since the
date of his examination by the medical
referee, he had again become incapacitated
as a result of the accident -.—Held, that the
onus was on the workman of proving that the
supervening incapacity was due to the acci-
dent. M Galium v. Quinn ([1909] S C 227)
distinguished. M'Ghee v. Summerlee Iron
Co., [1911] S. C. 870-Ct. of Sess.
- — Possible Recurrence — Keeping Arbitra-
tion Open.] - The appellant met with an
accident which necessitated the removal of one
ot his eyes. Compensation was paid as for
total incapacity. Subsequently his employers
apphe^ for a review. The Sheriff-Substitute
and the Court of Session found that earning
capacity had been completely restored, that a
cataract which had been developed was not
due to the accident, and made an order ending
the compensation; and the House of Lords
afiirmed their decision, being of opinion that
the arbitration ought not to be kept open to
meet future developments. Hargreave v
Haughhead Coal Co., 81 L J Vr Ifi?-
[1?12] A.C^ 319; [1912] W.C." Rep! 275;'
106 L. T. 468; 56 S. J. 379;-H.L. (Sc.)
Loss of Sight of one Eye — Earning
Capacity Restored — Subsequent Disease of
other Eye— Incapacity therefrom. 1—lf a man
loses the sight of one eye from injury by
accident arising out of and in the course of
his employment and recovers his original
earning capacity, but afterwards, owino- to
disease in his other eye, which has no causal
connection with the injury by accident suffers
incapacity for work, the injurv by accident
cannot be treated as a contributory cause of
ins subsequent incapacity, and a suspensory
order made in respect of the injurv bv accident
cannot therefore be increased on account of
such incapacity. The principles laid down
in Hargreave v. Hanqhhead Coal Co. (81 L J
P.C. 167: [1912] A.C. 319; [1912] W.c'
Rep. 275) applied. Hart v. Cory Brothers,
Lim.. 85 L. J. K.B. 116; [1915] W.C &
I. Rep. 522; 60 S. J. 89-C.A.
Agreement to Pay—" During total incapa-
city" — "Change of circumstances" — Total
2023
WOEKMEX'S COMPENSATION.
2024
Incapacity, Supposed to be Temporary, Be-
come Permanent.] — Where an agreement has
been entered into between a workman who has
been injured by "accident arising out of and in
the course of " his employment, within the
meaning of section 1, sub-section 1 of the
Workmen's Compensation Act, 1906, and his
employers for payment to him of compensation
" during his total incapacity for work," the
weekly payment cannot be reviewed under
section 16 of the first schedule to the Act
merely because the total incapacity, which the
parties thought would be temporary, has sub-
sequently become permanent by reason of the
necessity that the workman should undergo a
surgical operation, that not being a "' change
of circumstances " within the meaning of the
authorities. Scott v. Long Meg Plaster Co.,
[1914] W.C. & I. Rep. 258; 111 L. T. 773
— C.A.
The meaning of " change of circumstances "
is that where an injured workman is awarded
compensation on the footing that he is able to
do some light work, he being only partially
incapacitated, the weekly payment to him can
be reversed if it is subsequently proved that
that which, according to the medical evidenc*",
was believed to be the fact turns out to have
been unfounded. Or, if it can be proved that
total incapacity has ceased and that there is
only partial incapacity, there can be a review
of the weekly payments. But, if total incapa-
city was supposed to exist at the date of the
award or the agreement, it is immaterial to
consider whether that which was a matter for
doubt at one time has subsequently become a
matter of certainty. 7b.
Incapacity from NerYous Effects — Neuras-
thenia — No Actual Physical Effects.] — In
March, 1913, a workman suffered an injury to
his head. The wound was completely healed
by July, 1913. He was in receipt of compen-
sation for total incapacity from his employers.
In September, 1914, the employers applied to
review on the ground that the man was capable
of light work, which they had offered and he
had refused. The medical evidence was con-
flicting. The medical assessor reported that
the man could do light work on the level, but
that he genuinely believed that he was unable
to work. There were no actual physical
effects. The County Court Judge found that
the man honestly believed that he was in-
capable of work, and that his condition was
due to neurasthenia resulting from the acci-
dent, but said that he ought to try and get
work, and dismissed the application : — Held
(Phillimore, L.J., dissenting), that there was
evidence to justify the finding of the County
Court Judge. Wall, Lim. v. Steel, 84 L. J.
K.B. 1599; [1915] W.C. & I. Rep. 117;
112 L. T. 846— C.A.
Permanent Injury — Chance of Employment
— Review of Compensation — Termination or
Suspension.] — A workman met with an acci-
dent which necessitated the amputation of the
thumb of his left hand. In an arbitration
under the Workmen's Compensation Act, 1906,
after the workman had recovered from the
effects of the operation, the arbitrator found
that he was fit to resume his former work as a
brakesman, and also that the loss of his thumb
did " not impair his chance of employment in
his former line of employment or in any other
j line of employment which he might reasonably
] hope to follow," and terminated the compensa-
i tion. The workman contended that the com-
j pensation should have been suspended and not
i ended : — Held, that, notwithstanding the
I permanent and patent nature of the injury,
! the arbitrator, in view of his finding as to the
j workman's chance of employment, was entitled
j to end the compensation. Watson v. Beard-
i more d Co., [1914] S. C. 718— Ct. of Sess.
Temporary Recovery — Nominal Award —
Suspensory Order.] — Decision in Rosie v.
: Mackay ([1910] S. C. 714) to the effect that
I it is incompetent to keep open a claim to
I compensation by means of a nominal award or
j similar device, doubted in view of the opinions
' delivered in the House of Lords in Taylor v.
I London and North- Western Railway (81 L. J.
K.B. 541; [1912] A.C. 242). Weir v. North
' British Railway, [1912] S. C. 1073; [1912]
• W.C. Rep. 332— Ct. of Sess.
Unreasonable Conduct of Workman — Incapa-
; city Due in Whole or in Part to Workman's
Failure to Return to Work.] — In an applica-
I tion for termination or review of compensation
which was being paid to an injured workman,
i the arbitrator found that the workman had for
i some time been fit for light work, but had
made no attempt to obtain work, and that,
[ though partial incapacity still existed, it was
I " due in whole or in part to the defender's
' failure to return to work when able to do so,"
and ended payments of compensation till
further order : — Held, that, as the arbitrator's
findings did not exclude the conclusion that
incapacity was still partly due to the work-
man's injuries, he was not entitled to end the
compensation. Devlin v. Chapel Coal Co..
[1915] S. C. 71— Ct. of Sess.
Observations on the effect of a workman's
unreasonable conduct on his right to continue
to receive compensation, and semhle (per
Lord Mackenzie and Lord Skerrington) that
unreasonable conduct cannot per se deprive a
workman of his right to compensation, but
can only do so if it is proved that the existing
incapacity is due to that conduct. Ih.
Rise in Wages between Date of Agreement
and Date of Review — Increase of Amount.] —
The compensation payable to a minor work-
man was fixed by agreement at a weekly sum
representing half the amount which, in the
opinion of the parties, he would have been
earning at the date of the agreement had he
remained uninjured. Some months after-
wards, in consequence of a general rise in
wages, he applied to the Sheriff to have the
compensation increased : — Held, that the fact
that there had been a general rise in wages
between the date of the agreement and the
date of the application did not per se entitle
the workman to an increase, but that it was
merely one of the items to be taken into
consideration by the Sheriff in determining
for himself the weekly sum which the work-
man would probably have been earning at the
date of the review if he had remained
2025
WORKMEN'S COMPENSATION.
2026
uninjured. Malcolm v. Spowart £ Co., [1913]
S. C. 1024— Ct. of Sess.
Reduction of Amount Payable from Previous
Date — Over-payment — Set-off against Sums
Subsequently Payable.] — A workman was in-
jured in 1908, and compensation was paid to
him at the rate of 14s. Id. a week under an
agreement duly recorded under the Workmen's
Compensation Act, 1906. On the application
of the employers the payments were reduced
by the Judge on July 4, 1910, to 10s. a week
as from February 18, 1910. The employers
having paid 14s. Id. a week from February 18,
had paid the workman 41. lis. 8d. too much.
They claimed to set the over-payments off
against the 10s. a week falling due : — Held,
that the previous over-payments could not be
set off against the weekly payments falling
due after July 4, in consequence of Schedule I.
clause 19 of the Act, which provides that a
weekly payment " shall not be capable of
being assigned, charged or attached . . . nor
shall any claim be set off against the same."
Hosegood v. Wilson, 80 L. J. K.B. 519:
[1911] 1 K.B. 30; 103 L. T. 616; 27 T. L. R.
8&-C.A.
"Diminution and (or) redemption" — Right
of Employer to Withdraw Claim for Redemp-
tion.]— A workman met with an accident in
his employment. His employer paid him com-
pensation for over a year and then applied to
review asking for " diminution and (or) re-
demption," on the ground that the workman
could do light work. The workman submitted
to redemption on the footing that he could
not do his former work. The employer then,
before the arbitration came on, gave notice
that he withdrew his application so far as it
related to redemption : — Held, that the em-
ployer was entitled to withdraw that part of
his application. Gotobed v. Petchell. 83 L. J.
K.B. 429; [1914] 2 K.B. 36; [1914] W.C.
& I. Rep. 115; 110 L. T. 453; 48 R. J. 249:
30 T. L. R. 253— C.A.
d. Date from which Review may be Ordered.
Termination of Award.] — Upon application
by a workman to review an award as from
a date antecedent to the date of the applica-
tion, the applicant alleging inability to work
since that date owing to incapacity and the
respondents denying inability to work since
that date and the incapacity, and saying that
they should ask for termination of the award,
— Held, that the arbitrator had jurisdiction
to terminate the award as from the antecedent
date, the issue of incapacity as from that date
having been raised. Bagley v. Furness,
Withy d Co., 83 L. J. K.B. 1546; [1914]
3 K.B. 974; [1914] W.C. & I. Rep. 518— C.A.
It is competent for an arbitrator to end the
weekly compensation payable to an injured
workman under the Workmen's Compensation
Act, 1906, at a date antecedent to that of the
application for review, if it be proved that in
fact his incapacity for earning wages had
ceased at the earlier date. Donaldson v.
Cowan {[1909] S. C. 1292) disapproved.
Gibson d Co. v. Wishart, 83 L. J. P.C. 321;
[1915] A.C. 18; [1914] W.C. & I. Rep. 202;
111 L. T. 466; 58 S. J. 592; 30 T. L. R. 540
— H.L. (Sc.)
Increase of Weekly Payments in Case of
Minors — Order not to be Dated Prior to Date
of Application to Review.] — On February 6,
1911, a collier, who was then under twenty-one
years of age, was certified to be suffering from
nystagmus. He was paid as compensation
half his average wages, 10s. a week, until
April 20, 1911, when compensation was stopped
and he was given a job by his employers at
1/. 6s. Id. a week. On September 23, 1913,
he applied to review, as a minor when certified,
under the proviso to Schedule I. clause 16 of
the Workmen's Compensation Act, 1906,
asking for increased compensation so as to
make up his earnings to the amount which he
would probably have been earning if he had
remained uninjured. He claimed the increase
as from April 20, 1911. The arbitrator
awarded him increased compensation as from
February 6, 1912, a year after the disease was
certified : — Held, that the arbitrator could not
award an increase of compensation as from
a date prior to the date of the application
to review — namely, September 23, 1913.
Williams v. Bwllfa and Merthyr Dare Steam
Collieries, 83 L. J. K.B. 442; [1914] 2 K.B.
30; [1914] W.C. & I. Rep. 527 ; 110 L. T. 561
—C.A.
2. Redemption.
Discretion of Judge.] — Where a weekly pay-
ment under the Workmen's Compensation Act,
1906, has been continued by an employer for
not less than six months he has an absolute
right, under Schedule I. paragraph 17 of the
Act to redeem the liability therefor by a
payment as therein provided, and the Judge
has no discretion to refuse to allow him to
do so. Kendall <f- Gent v. Pennington,
[1912] W.C. Rep. 144; 106 L. T. 817— C.A.
Permanent Incapacity — Lump Sum —
"May" — Redemption Compulsory — Onus of
Proof.] — Where an employer applies for com-
mutation of a weekly payment under clause 17
of Schedule I. to the Workmen's Compensation
.\ct, 1906, the arbitrator, whether he finds the
incapacity to be permanent or not, must award
a lump sum which can be enforced as a judg-
ment. When the award has been made it is
compulsory on the employer to redeem at the
figure found payable, and the award should
not be in the form that the employer " may "
redeem the weekly payment at that figure.
Calico Printers' Association v. Booth. 82 I_j. J.
K.B. 985; [1913] 3 K.B. 652; [1913] W.C.
& I. Rep. 540; 109 L. T. 123; 57 S. J. 662;
29 T. L. R. 664-C.A.
In an application under clause 17 the arbi-
trator must ascertain on the evidence before
him, as best he can, whether the weekly pay-
ment already fixed is likely to be proper during
the rest of the workman's life: and so long as
he does not misdirect himself hLs conclusion of
fact will not be interfered with. 7b.
Dictum of Farwell, L.J., in Calico Printers'
Association v. Higham (81 L. J. K.B. 232,
238; [1912] 1 K.B. 93, 104; [1912] W.C. Rep.
2027
WOEKMEN'S COMPENSATION.
2028
104, 109) that the onus of proving permanent
incapacity is on the person alleging it, doubted.
lb.
Permanent Incapacity — Actuarial Value —
Duty of Court Court Judge.] — The words
" where the incapacity is permanent " in
clause 17 of Schedule I. to the Workmen's
Compensation Act, 1906, include partial as
well as total incapacity ; but the question
whether the diminished capacitj' to work is
permanent or not is one which the arbitrator
must decide on proper evidence before applying
the actuarial method of ascertaining the
amount of compensation under the first
alternative in clause 17. It does not follow
because the physical injury is permanent —
as, for example, the loss of a finger — that the
diminished capacity to work is necessarily
permanent also. 'National Telephone Co. v.
Smith ([1909] S. C. 1363) dissented from.
Calico Printers' Association v. Higham,
81 L. J. K.B. 232; [1912] 1 K.B. 93;
[1912] W.C. Eep. 104; 105 L. T. 784 ; 56 S. J.
89; 28 T. L. R. 53— C. A.
Per Fletcher Moulton, L.J. : The arbitrator
in assessing the commutation of a weekly
payment under the second alternative in
clause 17 is not determining the compensation
to be given for the accident. He has to con-
sider only the amount of the weekly payments,
their probable duration, the probability of their
being diminished or raised in the future, and
the probable extent of such variation, if any,
and ought not to be guided by any considera-
tion of what a jury might allow as damages.
7b.
Per Fletcher Moulton, L.J. : Semble, the
words in clause 3 of Schedule L, "the aver-
age weekly amount which " the workman " is
earning or is able to earn in some suitable
employment or business after the accident,"
refer to the value of the work which the
workman is doing in his own business — that
is, the wages which he would have to pay to
another for the services which he is himself
performing therein. lb.
Principle of Assessment.] — In December,
1906, a workman fell from a ladder while
working at his employer's mill and sustained
injuries which resulted in total incapacity.
For a considerable time the employers paid
the workman a weekly sum of 16s. Id. by way
of compensation, but in September, 1910, they
stopped these payments. On January 12,
1911, the workman obtained an award of com-
pensation at the same rate from September 10.
1910. The employers then took proceedings
under the Workmen's Compensation Act, 1897,
Sched. I. clause 13, to obtain redemption
of these weekly payments. The County Court
Judge awarded a lump sum of 120L 13s. 5d.,
which he arrived at by estimating the damages
he would have awarded at the time of the
accident, deducting the weekly payments since
received by the workman, and awarding the
balance : — Held, that the County Court Judge
had made the award on a fallacious principle,
and that the case must be remitted to him to
re-assess the redemption price. Victor Mill,
Litn. V. Shackleton, 81 L. J. K.B. 34; [1912]
1 K.B. 22; [1912] W.C. Eep. 33; 105 L. T.
613— C. A.
Principles governing the award of a lump
sum in redemption of weekly payments under
the Workmen's Compensation Act, 1897, dis-
cussed, lb.
Infant — " Permanent incapacity."] — Where
an application is made by employers to redeem
a weekly payment to a workman under
Schedule I. clause 17 of the Workmen's Com-
pensation Act, 1906, on the ground of the
permanent incapacity of the workman, the
arbitrator nmst satisfy himself whether the
physical condition of the injured workman is
stable. The permanent incapacity referred to
is the incapacity to earn full wages, and the
condition of the workman may be stable and
his incapacity permanent although if uninjured
he would at some future time in the ordinary
course of his employment become entitled to
be paid higher wages. If the incapacity is
permanent an infant under clause 17 is in no
better position than an adult, and the weekly
payment may be redeemed by the payment of
a lump sum of such an amount as would pur-
chase an annuity equal to 75 per cent, of the
weekly paj'ment, although his probable earn-
ings would be likely to increase if he had
remained uninjured. If the incapacity is not
permanent the amount is in the discretion of
the arbitrator. On such an application to
redeem a weekly payment the burden of prov-
ing the permanent incapacity of the workman
lies upon the employers. Marshall, Sons & Co.
V. Prince, 84 L. J. K.B. 16; [1914] 3 K.B.
1047; [1914] W.C. & I. Rep. 559; 111 L. T.
1081 ; 58 S. J. 721 ; 30 T. L. E. 654— C.A.
Applications both for Review and Redemp-
tion Pending.] — A girl of thirteen years of age
met with an accident arising out of and in the
course of her employment, which caused per-
manent injuries to one of her hands. Five
years later, the hand having reached a condi-
tion of stability, the employers applied for
redemption of the weekly payment they were
making. The respondent, having appeared to
an irregular service of this application, applied
for an increase on the ground of increased
earning powers but for the injury. Both appli-
cations were set down for hearing on the same
day, the employers' being first : — Held, that
the employers' right to redeem the existing
payment was not absolute, but subject to the
workman's right to review and obtain an
increase of the payment. Eley v. Moreland,
[1915] W.C. & I. Rep. 554; 60 S. J. 59— C.A.
VIII. ACTION BY EMPLOYEE FOE
INDEMNITY.
Payment by Master — Alleged Legal Liability
of Third Party — Notice of Claim — Condition
Precedent to Action.] — Where an injury to a
workman is caused in circumstances creating
a legal liability in a person other than his
employer to pay damages in respect thereof,
and the workman has received compensation
under the Workmen's Compensation Act, 1906,
from his employer, the employer is entitled,
under section 6 of the Workmen's Compensa-
2029
WOKKMEN'S COMPENSATION.
2030
tion Act, 1906, to bring an action against such
third party for an indemnity, notwithstanding
that he has not served upon such third party
the notice of his claim as required by rules 19
and 24 of the Workmen's Compensation Rules,
1907 to 1911. The only effect of not giving
such notice is that the third party is not bound
by the decision in the arbitration in the County
Court, and that the employer has to prove his
claim strictly against such third party.
Nettleingham v. Powell, 82 L. J. K.B. 911;
[1913] 3 K.B. 209; [1913] W.C. & I. Rep.
424; 108 L. T. 912; 57 S. J. 593; 29 T. L. R.
577— C. A.
Injury to Workman — Payment of Compen-
sation by Master — Alleged Legal Liability in
Third Party.] — The plaintiffs, having pur-
chased from the defendants a quantity of coal,
sent their steamship to take delivery of the
coal at certain staiths of which the defendants
had control in a navigable river. When the
steamship was opposite the staiths a foy boat
with two men in it came on to the port quarter
of the steamship close to the propeller, and
was receiving a steel rope from the steamship
to take to the staiths. The staith foreman,
who was a servant of the defendants, gave the
order " Slow ahead, helm a-port." The pilot
on the steamship passed the order on to the
captain, but neither of them enquired whether
the propeller was clear. The second officer,
who was aft while he thought there was
danger, did not signal to the captain that the
propeller was not clear, thinking that he
should defer to the staith foreman. The
engines were accordingly started, the foy boat
was sucked on to the propeller and sunk, and
the boatmen were injured. The plaintiffs
having paid compensation to the injured boat-
men under the Workmen's Compensation Act,
1906, brought an action against the defendants
for an indemnity under section 6 of the Act.
There was evidence to shew that it was the
practice on the river when a vessel got off the
staiths for the staith foreman to indicate to
what spout she was to go, and then to give
directions as to her mooring. There was also
evidence that the second officer was aft on
such occasions for the very purpose, among
others, of seeing that the propeller was clear,
and that the captain and pilot on the bridge
should get a hail from aft that all was clear
before they started the propeller. The Judge
found that the staith foreman had been negli-
gent, but that the officers of the steamship
had been guilty of contributory negligence,
and he gave judgment for the defendants : —
Held, by the Court of Appeal, that the plain-
tiffs were not entitled to tlie indemnity which
they claimed, inasmuch as — first (Kennedy,
L.J., doubting on this point), the circum-
stances did not create a legal liability on the
defendants to pay damages under the section,
the plaintiffs' own negligence by their servants
the officers of the steamship having been the
immediate and proximate cause of the injuries ;
and secondly, even if the defendants by their
servant the staith foreman bad been guilty
of negligence conducing to the injuries, the
plaintiffs had been guilty of contributory negli-
gence, and were in tlie position of joint wrong-
doers with the defendants. Cory v. France,
Fenwick <{• Co., 80 L. J. K.B. 341; [1911]
I K.B. 114 ; 103 L. T. 649 ; 11 Asp. M.C. 499 ;
55 S. J. 10; 27 T. L. R. 18— C.A.
Negligence of Fellow Workman — "Some
person other than the employer."] — Where a
workman is injured in consequence of the
negligence of a fellow W(jrkman, and receives
compensation from his employer, the latter
has a right to indemnity from the fellow
workman who caused the injury. Lees v.
Dunkerley, 80 L. J. K.B. 135 ; [1911] A.C. 5 ;
103 L. T. 467; 55 S. J. 44— H.L. (E.)
Negligence of other Persons — Absence of
Contributory Negligence of Workman.] — A
workman, a lad about sixteen years of age,
was seated with his employer's son in his
employer's cart. The son got down to attend
to some business on one side of a railway line
running alongside certain docks. The work-
man then got down for his own private and
necessary purpose. He crossed the railway
line, which was on the other side of the road.
He passed through an opening in a sort of
passage between heaps of boxes and went
behind those boxes. On his return in a short
time he ran out from the opening by which he
had entered, and when he was in the act of
crossing the railway line, not having looked
either to the right hand or to the left, he was
knocked down by an engine belonging to a
railway company and was seriously injured.
The railway company were served with notice
by the employer under section 6 of the Work-
men's Compensation Act. 1906. The deputy
County Court Judge found that there was
evidence of negligence on the part of the rail-
way company. He ruled that there was no
evidence of contributory negligence such as
would disentitle the workman to recover com-
pensation. The railway company appealed : —
Held, that, on the question of contributory
negligence, the circumstances were such that
the case fell rather within Dublin, Wicklow,
and Wexford Railway \. Slattery (3 App. Cas.
1155) than within Davey v. London and South-
western Eailxcay (52 L. J. Q.B. 665;
II Q.B. D. 213) ; and that it being a question
of fact and not a question of law, it was not
competent for the Court to do other than
accept the finding of the learned Judge.
Cutsforth V. Johnson. [1913] W.C. & 1. Rep.
131; 108 L. T. 138— C.A.
Injury Caused by Negligence of Third Person
— Death of Workman — Payment of Compensa-
tion to Dependant — No Right of Action by
Dependant against Third Person.] — By sec-
tion 6 of the Workmen's Compensation Act,
1906, where tbe injury in respect of which
compensation under tbe Act is payable is
caused imdcr circumstances creating a legal
liability in a third person, the workman may
take proceedings both against the third person
for damages and against his employer for com-
pensation under the Act, but may not recover
both damages and compensation ; and if the
workman recovers compensation under the
Act. the person paying the compensation shall
be entitled to be indemnified by the third
person. A workman was injured through the
negligence of third persons, tbe defendants,
2031
WOEKMEN'S COMPENSATION— WRIT.
2032
and died iu consequence four days later. His
employers, the plaintiffs, paid compensation
under the Workmen's Compensation Act, 1906,
to his illegitimate daughter, his sole depen-
dant, and claimed an indemnity in respect
thereof from the defendants under section 6 of
the Act : — Held, that the legal liability of the
defendants to the workman created by the
fact of the negligence causing the injury was
none the less a legal liability because it ceased
with the workman's death, and that the pro-
vision as to the right of the workman to an
alternative remedy was not intended to limit
the effect of the provision as to the right of
the employers to indemnity, and that, conse-
quently, the fact that the dependant, the
illegitimate daughter, could not exercise the
option referred to in the section, as she was
not entitled to bring an action against the
defendants under Lord Campbell's Act, made
no difference to the plaintiff's rights, and that
they were entitled to the indemnity claimed.
Smith's Dock Co. v. Readhead, 81 L. J. K.B.
808; [1912] 2 K.B. 323; [1912] W.C. Eep.
217; 106 L. T. 843; 28 T. L. R. 397— Bray, J.
Award against Employer — Fatal Injury from
Kick of Horse — Owner's Liability — Scienter.]
— Whilst engaged in his work at his em-
ployer's yard, a workman was kicked and
fatally injured by a horse which belonged to
a third party and was standing there un-
attended. The horse was not known by its
owner to be vicious : — Held, that, even assum-
ing that the horse was a trespasser in the
yard and had been left there unattended by
the negligence of its owner, the employers were
not entitled to be indemnified by him under
section 6 of the Workmen's Compensation Act,
1906, in respect of their liability to pay com-
pensation to the dependants of the deceased
workman. In the case of a horse not known
to be vicious it was not the natural consequence
of leaving it unattended in the yard that it
should kick the workman, and the damage was
therefore too remote and the owner of the
horse not liable. Cox x. Burbidge (32 L. J.
C.P. 89; 13 C. B. fx.s.) 430) followed.
Bradley v. Wallaces, 82 L. J. K.B. 1074;
[1913] 3 K.B. 629; [1913] W.C. & I. Rep.
620; 109 L. T. 281; 29 T. L. R. 705— C. A.
Industrial Disease — Disease Contracted by
Gradual Process — Several Employers — Lia-
bility to Contribute.] — Where a workman has
in the course of his employment contracted a
disease mentioned in Schedule III. to the
Workmen's Compensation Act, 1906, and is
entitled to compensation from his last em-
ployer under section 8, if the disease is of such
a nature as to be contracted by a gradual
process, the last employer is, under sub-
section 1 (c), clause (iii.) of that section,
entitled to an arbitration to determine the con-
tribution to the compensation payable which
should be made by any other employers of the
workman who during the twelve months pre-
vious to the date of his disablement have
employed him in the employment to which the
nature of the disease was due, without proving
that the disease was in fact contracted in
the employment of such other employers.
Mallinder v. Moores d Son, Lim., 81 L. J.
K.B. 714; [1912] 2 K.B. 124; [1912]
W.C. Rep. 257; 106 L. T. 487— C. A.
WORKSHOP.
See MASTER AND SERVANT.
WOUNDING.
See CRIMINAL LAW.
WRECK.
See SHIPPING.
WRIT.
Of Attachment.] — See Attachment.
Of Elegit.] — See Execction.
Of Extent.] — See Execution.
Of Fi. Fa.]— .S'fe Execction.
Of Sequestration.] — See Execution.
Of Summons.] — See Practice.
CASES
FOLLOWED, NOT FOLLOWED, APPROVED, OVEREULED,
QUESTIONED, EXPLAINED, DISTINGUISHED,
AND COMMENTED ON.
A.
Abrahams v. Deakin, 60 L. J. Q.B. 238;
[1891] 1 Q.B. 516 ; 63 L. T. 690 ; 39 W. R. 183 ;
55 J. P. 212 : followed and applied in Radley
V. London County Coutwil, 29 T. L. E. 680.
Abrahams' Estate, In re, 77 L. J. Ch. 578;
[1908] 2 Ch. 69 ; 99 L. T. 240 : applied in
Smelting Corporation, In re; Seaver v. Smelt-
ing Corporation, 84 L. J. Ch. 571; [1915]
1 Ch. 472 ; 113 L. T. 44 ; [1915] H. B. R. 126.
Abram v. Cunningham, 2 Lev. 182: over-
ruled in Hewson v. Shelley, 83 L. J. Ch. 607 ;
[1914] 2 Ch. 13; 110 L. T. 785; 58 S. J. 397;
30 T. L. R. 4a2.
Aberdeen Railway Co. v. Blaikie, 1 Macq.
461 : considered and applied in Transvaal
Lands Co. v. Neto Belgium (Transvaal) Land
de. Co., 84 L. J. Ch. 94; [1914] 2 Ch. 488;
112 L. T. 965; 21 Manson, 364; 59 S. J. 27;
31 T. L. R. 1.
Abergavenny Improvement Commissioners v.
Straker, 58 L. J. Ch. 717; 42 Ch. D. 83;
60 L. T. 756; 38 W. R. 158: followed in
Hailsham Cattle Market Co. v. Tolman,
84 L. J. Ch. 299; [1915] 1 Ch. 360;
79 J. P. 185; 13 L. G. R. 248; 59 S. J. 303;
31 T. L. R. 86.
Accles, In re, [1902] W. N. 164: distin-
guished in Piccadilly Hotel, In re, [1911]
2 Ch. 534; 56 S. J. 52.
Acraman, Ex parte; Pentreguinea Fuel Co.,
In re, 31 L. J. Ch. 741 : 4 De G. F. & J. 541 :
followed in Hanau v. Ehrlich, 81 L. J. K.B.
397; [1912] A.C. 39; 106 L. T. 1 ; 56 S. J.
186; 28 T.*L. R. 113.
Adams v. Adams, 61 L. J. Ch. 237 ; [1892]
1 Ch. 369 : applied in Williayns, In re, 81 L. J.
Ch. 296; [1912] 1 Ch. 399; 106 L. T. 584;
66 S. J. 325.
Adams v. Great North of Scotland Railway,
[1891] A.C. 31 : followed in King and Duveen,
In re, 82 L. J. K.B. 733; [1913] 2 K.B. 32;
108 L. T. 844.
Adkins, In re; Solomon v. Catchpole,
98 L. T. 667 : distinguished in Mann, In re;
Ford V. Ward, 81 L. J. Ch. 217; [1912] 1 Ch.
388; 106 L. T. 64; 56 S. J. 272.
Agar V. Blacklock & Co., 56 L. T. 890:
followed in Spalding v. Gamage, Lim., 83 L. J.
Ch. 855; [1914] 2 Ch. 405; 111 L. T. 829;
58 S. J. 722.
Ailesbury (Marquis) and Iveagh (Lord),
In re, 62 L. .7. Ch. 713; [1893] 2 Ch. 345;
69 L. T. 101 ; 41 W. R. 644 : applied in
Trafford's Settled Estates, In re, 84 L. J.
Ch. 351; [1915] 1 Ch. 9; 112 L. T. 107.
Ajello V. Worsley, 67 L. J. Ch. 172; [1898]
1 Ch. 274; 77 L. T. 783; 46 W. R. 245 : con-
sidered and approved in Spalding v. Gamage,
83 L. J. Ch. 855; [1914] 2 Ch. 405; 110 L. T.
530; 58 S. J. 722.
Akerman, In re, 61 L. J. Ch. 34; [1891]
3 Ch. 212; 65 L. T. 194; 40 W. E. 12
discussed in Smelting Corporation, In re
84 L. J. Ch. 571; [1915] 1 Ch. 472; 113 L. T
44; [1915] H. B. R. 126; in Peruvian Rail
way Construction Co., [1915] 2 Ch. 144
59 S. J. 579; 31 T. L. R. 464; and in Dacre,
In re, [1915] 2 Ch. 480.
Alabaster v. Harness, 64 L. J. Q.B. 76;
[1894] 2 Q.B. 897; [1895] 1 Q.B. 339;
71 L. T. 740; 43 W. R. 196 : considered and
followed in Oram v. Hutt, 83 L. J. Ch. 161;
[1914] 1 Ch. 98; 110 L. T. 187; 78 J. P. 51;
58 S. J. 80; 30 T. L. R. 55.
Alcock V. Cooke, 7 L. J. (o.s.) C.P. 126;
5 Bing. 340 : explained in Vancouver City v.
Vancouver Lumber Co., 81 L. J. P.C. 69;
[1911] A.C. 711; 105 L. T. 464.
Alexander v. Mills, 40 L. J. Ch. 73: L. R.
6 Ch. 124; 24 L. T. 206; 19 W. R. 310:
followed and applied in Smith v. Colbourne,
[1914] 2 Ch. 533; 58 S. J. 783.
Alexander's Will Trustees v. Alexander's
Settlement Trustees, [19101 S. C. 637: fol-
lowed in llartland. In re; Banks v. Hartland,
80 L. J. Ch. 305: [1911] 1 Ch. 459; 104 L. T.
490; 55 S. J. 312.
2034 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Alianza Co. v. Bell, 75 L. J. K.B. 44;
[1906] A.C. 18; 93 L. T. 705: 54 W. E. 413;
22 T. L. R. 94 : applied in Kauri Timber Co.
V. Commissioner of Taxes, [1913] A.C. 771;
109 L. T. 22; 29 T. L. R. 671.
Alison, In re, 11 Ch. D. 284: 40 L. T. 234:
followed in Metropolis and Counties Perma-
nent Investment Building Society, In re,
80 L. J. Ch. 387 ; [1911] 1 Ch. 698; 104 L. T.
382.
Allan V. Gomme, 9 L. J. Q.B. 258: 11 Ad. &
E. 759 : distinguished in White v. Grand Hotel,
Eastbourne, 82 L. J. Ch. 57 ; [1913] 1 Ch. 113;
107 L. T. 695; 57 S. J. 58.
Allcock V. Hall, 60 L. J. Q.B. 416 ; [1891]
1 Q.B. 444 : 64 L. T. 309 : approved in Skeate
V. Slaters, Lim., 83 L. J. K.B. 676; [1914]
2 K.B. 429; 110 L. T. 604; 30 T. L. R. 290.
Allen V. Allen, 70 L. T. 783: approved in
Broicn x. Brown, 84 L. J. P. 153; [1915] P.
83; 113 L. T. 190; 59 S. J. 442; 31 T. L. R.
280.
Allen V. Embleton, 27 L. J. Ch. 297:
4 Drew. 226 : dictum of Kindersley, V.C., in :
followed in Owen, In re; Slater v. Owen,
81 L. J. Ch. 337 ; [1912] 1 Ch. 519 ; 106 L. T.
671 ; 56 S. J. 381.
Allen V. Francis, 83 L. J. K.B. 1814; [1914]
3 K.B. 1065: [1914] W.C. & I. Rep. 599;
112 L. T. 62; 58 S. J. 753; 30 T. L. R. 695 :
considered in Burnham v. Hardy, 84 L. J.
K.B. 714; [1915] W.C. & I. Rep. 146;
112 L. T. 837.
Allen V. Gold Reefs of West Africa, 69 L. J.
Ch. 266: [1900] 1 Ch. 656; 82 L. T. 210:
48 W. R. 452; 7 Manson, 417 : followed in
British Murac Syndicate v. Alperton. 84 L. J.
Ch. 665; [1915] 2 Ch. 186; 59 S. J. 494;
31 T. L. R. 391.
Allen V. Oakey, 62 L. T. 724 : not followed
in J. T. Smith and J. E. Jones, Lim. v. Ser-
vice, Reeve d Co., 83 L. J. Ch. 876; [1914]
2 Ch. 576.
Allen and DriscoU's Contract, In re, 73 L. J.
Ch. 614; [1904] 2 Ch. 226; 52 W. R. 681;
68 J. P. 469 ; 2 L. G. R. 959 ; 20 T. L. E. 605 :
distinguished in Taunton and West of England
Perpetual Benefit Building Society and
Roberts's Contract, In re, 81 L. J. Ch. 690;
[1912] 2 Ch. 381; 107 L. T. 378; 56 S. J. 688.
Allen & Sons, In re, 76 L. J. Ch. 362;
[1907] 1 Ch. 575; 96 L. T. 660; 14 Manson.
144 : approved in Morrison, Jones d Taylor,
Lim., In re, 83 L. J. Ch. 129; [1914] 1 Ch. 50;
109 L. T. 722 ; 58 S. J. 80 ; 30 T. L. R. 59.
Allhusen v. Whittell, 36 L. J. Ch. 929 ; L. R.
4 Eq. 295 ; 16 L. T. 695 : was founded on and
did not enlarge the principle of Holgate v.
Jennings (24 Beav. 623) : so held in McEuen,
In re, [1913] 2 Ch. 704 : followed in Wills.
In re, 84 L. J. Ch. 580; [1915] 1 Ch. 769;
113 L. T. 138; 59 S. J. 477.
AUinson v. General Medical Council, 63 L. J
Q.B. 534, at p. 540; [1894] 1 Q.B. 750, at
p. 763 : definition of professional misconduct
in, adopted in G. (a Solicitor), In re, 81 L. J.
K.B. 245; [1912] 1 K.B. 302; 105 L. T. 874;
56 S. J. 92; 28 T. L. R. 50.
Allman v. Hardcastle, 89 L. T. 553: 67 J. P.
440 : followed in Duchesne v. Finch, 107 L. T.
412; 76 J. P. 377; 10 L. G. R. 559;
28 T. L. R. 440.
Amalgamated Society of Railway Servants
V. Osborne, 79 L. J. Ch. 87 : [19101 A.C. 87 ;
101 L. T. 787 ; 54 S. J. 215; 26 T. L. R. 177 :
considered in Wilson v. Amalgamated Society
of Engineers, 80 L. J. Ch. 469; [1911] 2 Ch.
324; 104 L. T. 715; 55 S. J. 498: 27 T. L. R.
418.
Amalgamated Society of Railway Servants
V. Osborne, 79 L. J. Ch. 87: [1910] A.C. 87:
101 L. T. 787 ; 54 S. J. 215 ; 26 T. L. R. 177 :
application of, considered in Wilson v. Scottish
Typographical Association, [1912] S. C. 534;
and in Gaskell v. Lancashire and Cheshire
Miners Federation, 28 T. L. R. 518; 56 S. J.
719.
Anderson, In re, 74 L. J. Ch. 433; [1905]
2 Ch. 70; 92 L. T. 725; 53 W. E. 510 : con-
sidered and applied in Tennant's Estate, In re,
[1913] 1 Ir. R. 280.
Anderson v. Balfour, [1910] 2 Ir. R. 497:
disapproved in Murray v. Denholm, [1911]
S. C. 1087 : approved in Trim Joint District
School V. Kelly, 83 L. J. P.C. 220; [1914]
A.C. 667: 111 L. T. 305; 58 S. J. 493;
30 T. L. R. 452.
Anderson v. British Bank of Columbia,
45 L. J. Ch. 449; 2 Ch. D. 644; 35 L. T. 76;
24 W. R. 624 : considered in Birmingham and
Midland Motor Omnibus Co. v. London and
North-Western Railway, 83 L. J. K.B. 474;
[1913] 3 K.B. 850; 109 L. T. 64; 57 S. J. 752.
Anderson v. Jacobs, 93 L. T. 17: distin-
guished in Talbot de Malahide (Lord) v.
Dunne. [1914] 2 Ir. R. 125.
Anderson v. Reid, 66 J. P. 564 : followed iu
Wills V. McSherry, 82 L. J. K.B. 71; [1913]
1 K.B. 20: 107 L. T. 848; 77 J. P. 65;
23 Cox C.C. 254; 29 T. L. R. 48.
Andrew v. Bridgman, 77 L. J. K.B. 272:
[1908] 1 K.B. 596; 98 L. T. 656 : dicta in,
affirmed and followed in West v. Gwynne,
80 L. J. Ch. 578; [1911] 2 Ch. 1; 104 L. T.
759; 55 S. J. 519; 27 T. L. R. 444.
Andrew v. Crossley, 61 L. J. Ch. 437; [1892]
1 Ch. 492 ; 66 L. T. 571 ; 9 R. P. C. 165 :
considered in Stepney Spare Motor Wheel Co.
V. Hall. 80 L. J. Ch. 391; [1911] 1 Ch. 514;
104 L. T. 665; 27 T. L. E. 283.
Andrew v. Failsworth Industrial Society,
73 L. J. K.B. 510: [1904] 2 K.B. 32; 90 L. T.
611 ; 52 W. E. 451 ; 20 T. L. E. 429 : distin-
guished in Warner v. Couchman, 80 L. J.
K.B. 526; [1911] 1 K.B. 351; 103 L. T. 693;
55 S. J. 107; 27 T. L. E. 121.
Explained, Distixguished, and Commented On.
2035
Andrews v. Paradise, 8 Mod. 318: explained
in Pettey v. Parsons, [1914] 1 Ch. 704;
30 T. L. E. 328.
Andrews v. Partington, 3 Bro. C.C. 401:
held inapplicable in Faux, In re, 84 L. J. Ch.
873; 113 L. T. 81; 59 S. J. 457; 31 T. L. K.
289.
Angerstein, Ex parte, 43 L. J. Bk. 131
L. E. 9 Ch. 479 ; 30 L. T. 446 ; 22 W. E. 581
applied in Branson, In re, 83 L. J. K.B. 1316
[1914] 2 K.B. 701 ; 110 L. T. 940 ; 58 S. J. 416.
Anglesey (Marquis), In re, 72 L. J. Ch.
782; [1903] 2 Ch. 727; 52 W. E. 124:
applied in Singer v. Fry, 84 L. J. K.B. 2025 ;
[1915] H. B. E. 115.
Anglo-Australian Steam Navigation Co. v.
Richards, 4 B.W.C.C. 247 : considered in
Silcock V. GoUghtly, 84 L. J. K.B. 499;
[1915] 1 K.B. 748; [1915] W.C. & I. Eep.
164 ; 112 L. T. 800.
Anglo-Continental Guano Works v. Bell,
70 L. T. 670: 58 J. P. 383; 3 Tax Cas. 239 :
distinguished in Farmer v. Scottish North
American Trust, 81 L. J. P.C. 81; [1912]
A.C. 118; 105 L. T. 833; 28 T. L. E. 142.
Ankerson v. Connelly, 76 L. J. Ch. 402;
[1907] 1 Ch. 678; 96 L. T. 681; 23 T. L. E.
486 : applied in Bailey v. Holborn and Frascati,
Lim., 83 L. J. Ch. 515; [1914] 1 Ch. 598;
no L. T. 574; 58 S. J. 321.
Anonymous Case, Vander Straaten's Eep.
195 : overruled in Pate v. Pate, 84 L. J.
P.C. 234; [1915] A.C. 1100; 31 T. L. E. 590.
Archer v. Kelly, 29 L. J. Ch. 911; 1 Dr.
& S. 300 : followed in Williams' Settlement,
In re, 80 L. J. Ch. 249; [1911] 1 Ch. 441;
104 L. T. 310; 55 S. J. 236.
Archer's Case, 61 L. J. Ch. 129; [1892]
1 Ch. 322; 65 L. T. 800; 40 W. E. 212:
applied in London and South-Western Canal,
In re, 80 L. J. Ch. 234; [1911] 1 Ch. 346;
104 L. T. 95; 18 Hansen, 171.
Arden v. Arden, 54 L. J. Ch. 655: 29 Ch.
D. 702 ; 52 L. T. 610 ; 33 W. E. 593 : followed
in Gresham Life Assurance Society v. Crowther,
84 L. J. Ch. 312 ; [1915] 1 Ch. 214 ; 111 L. T.
887; 59 S. J. 103.
Armitage, In re, [1893] 3 Ch. 337 : followed
and applied in Sale, In re; Nisbet v. Philp,
[1913] 2 Ch. 697.
Armitage v. Parsons, 77 L. J. K.B. 850;
[1908] 2 K.B. 410; 99 L. T. 329; 24 T. L. E.
635 : distinguished in Muir v. Jenks, 82 L. J.
K.B. 703; [1913] 2 K.B. 412; 108 L. T. 747;
57 S. J. 476.
Armstrong v. Eldridge, 3 Bro. C.C. 215:
considered in Tate, In re; Williamson v.
Gilpin, 83 L. J. Ch. 593; [1914] 2 Ch. 182;
109 L. T. 621; 58 S. J. 119.
Arnold v. Arnold, 2 Myl. & K. 365 : followed
in Richardson, In re, 84 L. J. Ch. 438; [1915]
1 Ch. 353; 112 L. T. 554.
Arnold v. Dixon, L. E. 19 Eq. 113: approved
and followed in Fauntleroy v. Beebe, 80 L. J.
Ch. 654; [1911] 2 Ch. 257; 104 L. T. 704;
55 S. J. 497 ; discussed and applied in
Herbert v. Herbert, 81 L. J. Ch. 733; [1912]
2 Ch. 268.
Ashton Gas Co. v. Att.-Gen., 75 L. J. Ch.
1; [1906] A.C. 10; 93 L. T. 676; 70 J. P.
49; 13 Alanson, 35; 22 T. L. E. 82 : principle
of applied in Johnston v. Chestergate Hat
Manufacturing Co., 84 L. J. Ch. 914; [1915]
2 Ch. 338; 59 S. J. 692.
Askew V. Woodhead, 49 L. J. Ch. 320;
14 Ch. D. 27 ; 42 L. T. 567 ; 28 W. E. 874 :
applied in Simpson, hi re; Clarke v. Simpson,
82 L. J. Ch. 169; [1913] 1 Ch. 277; 108 L. T.
317; 57 S. J. 302.
Aston V. Kelsey, 82 L. J. K.B. 817 ; [1913]
3 K.B. 314; 108 L. T. 750; 18 Com. Cas. 257';
29 T. L. E. 530 : followed in Blaker v. Haioes,
109 L. T. 320; 29 T. L. E. 609.
Atkinson, In re ; Barbers' Co. v. Grose
Smith, 73 L. J. Ch. 585; [1904] 2 Ch. 160;
90 L. T. 825; 53 W. E. 7 : distinguished in
Peyinington, In re, 83 L. J. Ch. 54; [1914]
1 Ch. 203; 109 L. T. 814; 20 Hanson, 411;
30 T. L. E. 106.
Atkinson, In re; Wilson v. Atkinson, 61 L. J.
Ch. 504; [1892] 3 Ch. 52 : dictu7n of North,
J., in, not followed in Clarkson, In re; Public
Trustee v. Clarkson, 84 L. J. Ch. 881; [1915]
2 Ch. 216; 59 S. J. 630.
Atlas Metal Co. v. Miller, 67 L. J. Q.B. 815 ;
[1898] 2 Q.B. 500 ; 79 L. T. 5 ; 46 W. E. 657 :
followed and applied in Fox v. Central Silk-
stone Collieries, 81 L. J. K.B. 989; [1912]
2 K.B. 597 ; 107 L. T. 85; 56 S. J. 634.
Attenborough v. Attenborough, 1 K. & J.
296 : held inapplicable in De Sommery, In re.
82 L. J. Ch. 17 ; [1912] 2 Ch. 622 ; 57 S. J. 78.
Att.-Gen. v. Chamberlain, 90 L. T. 581;
20 T. L. E. 359 : not followed in Att.-Gen. v.
Milne, 82 L. J. K.B. 773; [1913] 2 K.B. 606;
108 L. T. 772; 57 S. J. 532.
Att.-Gen. v. Clack, 1 Beav. 467 : distin-
guished in Cotter, In re, 84 L. J. Ch. 837;
[1915] 1 Ch. 307 ; 112 L. T. 340; 59 S. J. 177.
Att.-Gen. v. Day, 69 L. J. Ch. 8; [1900]
1 Ch. 31 ; 81 Ji. T. 806 ; 64 J. P. 88 : applied
in Hall's Charity, In re, 10 L. G. E. 11;
76 J. P. 9 ; 28 T. L. E. 32.
Att.-Gen. v. Dodd, 63 L. J. Q.B. 319;
[1894] 2 Q.B. 150; 70 L. T. 660; 42 W. R.
524; 58 J. P. 526: considered in GoswelVs
Trusts, In re, 84 L. J. Ch. 719; [1915] 2 Ch.
106; 59 S. J. 579.
2036 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Att.-Gen. v. Emerson, 59 L. J. Q.B. 192;
24 Q.B. D. 56 : considered in Becker v. Earl's
Court. Lim., 56 S. J. 206.
Att.-Gen. v. Hitchcock, 16 L. J. Ex. 259;
1 Ex. 91 : considered in Rex v. Cargill, 82 L. J.
K.B. 655; [1913] 2 K.B. 271; 108 L. T. 816;
23 Cox C.C. 382 ; 29 T. L. R. 382.
Att.-Gen. v. Horner (No. 2) , 82 L. J. Ch.
339 ; [1913] 2 Ch. 140 ; 108 L. T. 609 ; 77 J. P.
257 ; 11 L. G. E. 784 ; 57 S. J. 498 ; 29 T. L. R.
451 : followed in Clode v. London County
Council, 83 L. J. K.B. 1587 ; 12 L. G. E. 673 ;
58 S. J. 633; 30T. L. R. 489.
Att.-Gen. v. Leicester Corporation, 80 L. J.
Ch. 21; [1910] 2 Ch. 359; 103 L. T. 214;
74 J. P. 385; 26 T. L. R. 568 : followed in
Att.-Gen. v. Sheffield Corporation, 106 L. T.
367; 76 J. P. 185; 10 L. G. E. 301; 56 S. J.
326; 28 T. L. E. 266.
Att.-Gen. v. London County Council, 76 L. J.
K.B. 454; [1907] A.C. 131; 96 L. T. 481;
71 J. P. 217 ; 5 L. G. E. 465 ; 23 T. L. E. 390 :
discussed and explained in Sugden v. Leeds
Corporation, 83 L. J. K.B. 840; [1914] A.C.
483 ; 108 L. T. 578 ; 77 J. P. 225 ; 11 L. G. E.
662 ; 6 Tax Cas. 211 ; 57 S. J. 425 ; 29 T. L. E.
402.
Att.-Gen. v. Mathieson, 76 L. J. Ch. 682:
[1907] 2 Ch. 383; 97 L. T. 450; 23 T. L. E.
754 : principle of, applied in Orphan Working
School and Alexandra Orphanage, In re,
81 L. J. Ch. 627 ; [1912] 2 Ch. 167.
Att.-Gen. v. Merthyr Tydfil Union, 69 L. J.
Ch. 299; [1900] 1 Ch. 516; 82 L. T. 662;
48 W. E. 403; 64 J. P. 276: applied in
Att.-Gen. v. East Barnet Urban Council,
9 L. G. E. 913.
Att.-Gen. v. Sidney Sussex College, 38 L.J.
Ch. 656; L. E. 4 Ch. 722 : followed in Lavelle,
In re; Concannon v. Att.-Gen., [1914] 1 Ir. R.
194.
Att.-Gen. v. Smyth, [1905] 2 Ir. R. 553: not
followed in Att.-Gen. v. Milne, 82 L. J. K.B.
773; [1913] 2 K.B. 606; 108 L. T. 772;
57 S. J. 532.
Att.-Gen. v. Wilson, 8 L. J. Ch. 119 : 9 Sim.
526 : distinguished in Forbes v. Samuel,
82 L. J. K.B. 1135; [1913] 3 K.B. 706;
109 L. T. 599 ; 29 T. L. E. 544.
Att.-Gen. for Ontario v. Att.-Gen. for
Quebec, 72 L. J. P.C. 9; [1903] A.C. 39:
87 L. T. 453 : followed in Att.-Gen. for Quebec
V. Att.-Gen. for Ontario, 80 L. J. P.C. 35;
[1910] A.C. 627; 103 L. T. 328; 26 T. L. E.
679.
Auriferous Properties, In re (No. 2) ,
67 L. J. Ch. 574; [1898] 2 Ch. 428; 79 L. T.
71; 47 W. E. 75; 5 Manson, 260: distin-
guished in Peruvian Railway Construction
Co., In re, [1915] 2 Ch. 144; 59 S. J. 579;
31 T. L. E. 464.
Ayerill, In re; Salsbury v. Buckle, 67 L. J.
Ch. 233; [1898] 1 Ch. 523; 78 L. T. 320;
46 W. E. 460 : distinguished in Stevens, In re,
84 L. J. Ch. 432; [1915] 1 Ch. 429; 112 L. T.
982; 59 S. J. 441.
Aylmer, In re, 70 L. T. 244; 1 Manson, 391:
applied in Bonacina, In re; Le Brasseur v.
Bonacina, 81 L. J. Ch. 674; [1912] 2 Ch. 394;
107 L. T. 498; 56 S. J. 667; 28 T. L. E. 508.
B.
I
I
Babcock and Wilcox v. Water Tube Boiler
and Engineering Co., 27 E. P. C. 626: fol-
lowed in British, Foreign, and Colo7iial Auto-
matic Light Controlling Co. v. Metropolitan
Gas Meters, Lim., 81 L. J. Ch. 520; [1912]
2 Ch. 82; 106 L. T. 834.
Bainbridge v. Postmaster-General, 75 L. J.
K.B. 366; [1906] 1 K.B. 178; 94 L. T. 120;
54 W. E. 221 ; 22 T. L. E. 70 : applied in
Roper V. Works and Public Buildings Com-
missioners, 84 L. J. K.B. 219; [1915] 1 K.B.
45 ; 111 L. T. 630.
Bainbridge v. Smith, 41 Ch. D. 462 : 60 L. T.
879; 37 \Y. E. 594 : distinguished in British
Murac Syndicate v. Alperton Rubber Co.,
84 L. J. Ch. 665 ; [1915] 2 Ch. 186 ; 59 S. J.
494; 31 T. L. E. 391.
Baines v. Geary, 56 L. J. Ch. 935 ; 35 Ch. D.
154 ; 56 L. T. 567 ; 36 W. E. 98 ; 51 J. P. 628 :
is not reconcilable with the decision in Baker
V. Hedgecock, 57 L. J. Ch. 889; 39 Ch. D.
520 ; 59 L. T. 361 ; 36 W. E. 840 : so held
in Continental Tyre and Rubber Co. v. Heath,
29 T. L. E. 308.
Baird v. Birsztan, 8 Fraser, 438: approved
in Krzus v. Croio's Nest Pass Coal Co.,
81 L. J. P.C. 227; [1912] A.C. 590; 107 L. T.
77; 56 S. J. 632: 28 T. L. E. 488; and in
New Monckton Collieries v. Keeling, 80 L. J.
K.B. 1205; [1911] A.C. 648; 105 L. T. 337;
55 S. J. 687 ; 27 T. L. E. 551.
Baker, In re; Nichols v. Baker, 59 L. J. Ch.
661; 44 Ch. D. 262: 62 L. T. 817 : discussed
in Rex V. Mitchell, 82 L. J. K.B. 153; [1913]
1 K.B. 561 ; 108 L. T. 76 ; 77 J. P. 148 ; 23 Cox
C.C. 273; 29 T. L. E. 157.
Baker v. Ambrose, 65 L. J. Q.B. 589;
[1896] 2 Q.B. 372 : approved in Bagley,
In re, 80 L. J. K.B. 168; [1911] 1 K.B. 317;
103 L. T. 470; 18 Manson, 1; 55 S. J. 48.
Baker v. Hedgecock, 57 L. J. Ch. 889;
39 Ch. D. 520; 59 L. T. 361 ; 36 W. E. 840 :
view expressed in, approved in preference to
the decision in Baines v. Geary (56 L. J. Ch.
935; 35 Ch. D. 154) in Continental Tyre and
Rubber Co. v. Heath, 29 T. L. E. 308.
Explained, Distinguished, and Commented On.
2037
Baker v. Yorkshire Fire and Life Assurance
Co., 61 L. J. Q.B. 838; [18921 1 Q.B. 144;
66 L. T. 161 : applied in Hickman v. Kent
or Romney Marsli SJteep Breeders' Association,
84 L. J. Ch. 688; [1915] 1 Ch. 881; 113 L. T.
159; 59 S. J. 478.
Baker & Co.'s Trade Marks, In re, 77 L. J.
Ch. 473; [1908] 2 Ch. 86; 98 L. T. 721;
24 T. L. R. 467 : followed in Cadbury
Brothers' Application, In re (No. 2), 84 L. J.
Ch. 827; [1915] 2 Ch. 307; 32 R. P. C. 456;
59 S. J. 598 ; 31 T. L. R. 523.
Baker and Selmon's Contract, In re, 76 L. J.
Ch. 235; [1907] 1 Ch. 238; 96 L. T. 110:
applied in Atkinson's and HorseU's Contract,
In re, 81 L. J. Ch. 588; [1912] 2 Ch. 1 ;
106 L. T. 548 ; 56 S. J. 324.
Bald, In re, 76 L. T. 462: considered in
Pryce, In re; Lawford v. Pryce, 80 L. J. Ch.
525; [1911] 2 Ch. 286 ; 105 L. T. 51.
Ball V. Hunt, 81 L. J. K.B. 782; [1912]
A.C. 496; [1912] W.C. Rep. 261; 106 L. T.
911; 56 S. J. 550; 28 T. L. R. 428: dis-
tinguished in Gray v. Shotts Iron Co., [1912]
S. C. 1267 ; [1912] W.C. Rep. 359 : applied
in Jackson v. Hunslet Engine Co., 84 Li. J.
K.B. 1361; [1915] W.C. & I. Eep. 389;
113 L. T. 630.
Bank of Scotland v. Morrison, [1911] S. C.
593 : followed in National Provincial Bank
of England v. Glanusk (Lord), 82 L. J.
K.B. 1033; [1913] 3 K.B. 335; 109 L. T. 103;
29 T. L. R. 593.
Banks v. Hollingsworth, 62 L. J. Q.B. 239 ;
[1893] 1 Q.B. 442; 68 L. T. 477; 41 W. R.
225 ; 57 J. P. 436 : followed in Donkin v.
Pearson, 80 L. J. K.B. 1069; [1911] 2 K.B.
412; 104 L. T. 643.
Banks v. Wooler, 81 L. T. 785; 64 J. P.
245 : followed in Preston v. Redfern, 107 L. T.
410 ; 76 J. P. 359 ; 10 L. G. R. 717 ; 28 T. L. E.
435.
Bannatyne v. Maclver, 75 L. J. K.B. 120;
[1900] 1 K.B. 103; 94 L. T. 150; 54 W. R.
293 : observations in, discussed in Reversion
Fund and Insurance Co. v. Maison Cosway,
Lirn., 82 L. J. K.B. 512; [1913] 1 K.B. 364;
108 L. T. 87 ; 20 Manson, 194 ; 57 S. J. 144.
Barber v. Penley, 62 L. J. Ch. 623; [1893]
2 Ch. 447 ; 68 L. T. 662 : discussed and fol-
lowed in Lyojis v. Gulliver, 83 L. J. Ch. 281;
[1914] 1 Ch. 631; 110 L. T. 284; 78 J. P. 98;
12 L. G. R. 194 ; 58 S. J. 97 ; 30 T. L. R. 75.
Barbuit's Case, Ca. t. Talb. 281 : considered
in Republic of Bolivia Exploration Syndicate,
In re, 83 L. J. Ch. 226; [1914] 1 Ch. 139;
109 L. T. 741; 110 L. T. 141; 58 S. J. 173;
30 T. L. R. 78.
Barclay v. Owen, 60 L. T. 220: distin-
guished in Bythicay, In re, 80 L. J. Ch. 246;
104 L. T. 411 ; 55 S. J. 235.
Barker, In re, 50 L. J. Ch. 334: 17 Ch. D.
241 : discussed and applied in Herbert v.
Herbert, 81 L. J. Ch. 733; [1912] 2 Ch. 268.
Barker, In re, 50 L. J. Ch. 334; 17 Ch. D.
241 ; 44 L. T. 33 : applied in Hopkinson v.
Richardson, 82 L. J. Ch. 211; [1913] 1 Ch.
284 ; 108 L. T. 501 ; 57 S. J. 265.
Barker v. Herbert, 80 L. J. K.B. 1329-
[1911] 2 K.B. 633; 105 L. T. 349; 75 J. P.
481 ; 9 L. G. R. 1083 ; 27 T. L. R. 488 :
discussed and distinguished in Horridge v.
Makinson, 84 L. J. K.B. 1294 ; 113 L. T. 498 ;
13 L. G. R. 868; 31 T. L. R. 389.
Barlow's Contract, In re, 72 L. J. Ch., at
p. 216; [1903] 1 Ch., at p. 384 : observations
in, considered in Bruen's Estate, In re, [1911]
1 Ir. R. 76.
Barnabas v. Bersham Colliery Co., 1(J3 L. T.
513; 55 S. J. 63: followed and applied in
Hawkins v. Powell's Tillery Steatn Coal Co.,
80 L. J. K.B. 769; [1911] 1 K.B. 988;
104 L. T. 365 ; 55 S. J. 329 ; 27 T. L. R. 282 :
applied in Chandler v. Great Western Rail-
icay, 106 L. T. 479 : explained in Lewis v.
Port of London Authority. [1914] W.C. &
I. Rep.' 299 ; 111 L. T. 776 ; 58 S. J. 686.
Barnes v. Nunnery Colliery Co., 81 L. J.
K.B. 213; [1912] A.C. 44; [1912] W.C. Rep.
90; 105 L. T. 961; 56 S. J. 159; 28 T. L. R.
135 : applied in Pepper \. Sayer, 111 L. T. 708;
58 S. J. 669; 30 T. L. R. 621 : applied in
Herbert v. Fox d Co., 84 L. J. K.B. 670;
[1915] 2 K.B. 81 ; [1915] W.C. & I. Rep. 154 ;
112 L. T. 833 ; 59 S. J. 249 : distinguished in
Richardson v. Denton Colliery Co., 109 L. T.
370.
Barnett v. Howard, 69 L. J. Q.B. 955;
[1900] 2 Q.B. 784; 83 L. T. 301 : followed in
Wood V. Lewis, 83 L. J. K.B. 1046; [1914]
3 K.B. 78; 110 L. T. 994.
Barnett v. Wheeler, 10 L. J. Ex. 102; 7 M.
& W. 364 : considered in Taunton and West
of England Perpetual Benefit Building Society
and Roberts's Contract, In re, 81 L. J. Ch.
690; [1912] 2 Ch. 381; 56 S. J. 688.
Barnhart v. Greenshields, 9 Moo. P.C. 18:
explained in Reeves v. Pope, S3 L. J. K.B. 771 ;
[1914] 2 K.B. 284 ; 110 L. T. 503 ; 58 S. J. 248.
Barrack v. M'CulIoch, 26 L. J. Ch. 105;
3 K. & J. 110 : applied in Mackenzie, In re,
80 L. J. Ch. 443: [1911] 1 Ch. 578; 105 L. T.
154; 55 S. J. 406; 27 T. L. R. 337.
Barraclough v. Cooper, 77 L. J. Ch. 555 n.;
[1908] 2 Ch. 121 n. : followed in Williams,
In re; Metcalf v. Williams, 83 L. J. Ch. 570;
[1914] 2 Ch. 61; 110 L. T. 923; 58 S. J. 470.
Barratt, In re; Whitaker v. Barratt, 59 L. J.
Ch. 218; 43 Ch. D. 70; 38 W. R. 59 : followed
in Harris. In re; Davis v. Harris, 83 L. J.
Ch. 841; [1914] 2 Ch. 395; 68 S. J. 653.
2038 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Barron v. Potter, 84 L. J. K.B. 751, 2008;
[1915] 3 K.B. 593; 112 L. T. 688; 59 S. J.
650 : applied and followed in Boddington,
In re; Salaman, ex parte, 84 L. J. K.B. 2119.
Barrow's Case, 49 L. J. Ch. 498; 14 Ch. D.
432 ; 42 L. T. 891 : followed in Wilkes v.
Spooner, 80 L. J. K.B. 1107 ; [1911] 2 K.B.
473; 104 L. T. 911; 55 S. J. 479; 27 T. L. E.
426.
Bartlett, In re; Newman v. Hook, 50 L. J.
Ch. 205; 16 Ch. D. 516: distinguished in
Thomas, In re; Bartley v. Thomas, 80 L. J.
Ch. 617; [1911] 2 Ch. 389; 105 L. T. 59;
55 S. J. 567.
Bartlett v. Franklin, 36 L. J. Ch. 671;
17 L. T. 100; 15 W. K. 1077: explained
and distinguished in Edmondson v. Copland,
80 L. J. Ch. 532; [19111 2 Ch. 301; 105 L. T.
8 ; 55 S. J. 520 ; 27 T. L. E. 446.
Barton, Thompson & Co. v. Yigers, 19 Com.
Cas. 175 : distinguished in Jordeson d Co. v.
London Hardwood Co., 110 L. T. 666 ; 19 Com.
Cas. 161.
Barwell v. Newport Abercarn Black Vein
Steam Coal Co., 84 L. J. K.B. 1105: [1915]
2 K.B. 256; 112 L. T. 806: 59 S. J. 233;
31 T. L. E. 136 : followed in Fairbanks v.
Florence Coal ar^d Iron Co., 84 L. J. K.B.
1115; [1915] 2 K.B. 714; 112 L. T. 1013.
Barwick v. English Joint-Stock Bank,
36 L. J. Ex. 147 ; L. E. 2 Ex. 259; 16 L. T.
461 ; 15 W. E. 877 : discussed and explained
in Lloyd v. Grace, Smith li Co., 81 L. J.
K.B. 1140; [1912] A.C. 716; 109 L. T. 531;
56 S. J. 723; 28 T. L. E. 547.
Baskett v. Lodge, 23 Beav. 138: distin-
guished in Beaumont, In re; Bradshaw v.
Packer, 82 L. J. Ch. 183; [1913] 1 Ch. 325;
108 L. T. 181; 57 S. J. 283.
Batchelour v. Gee, 83 L. J. K.B. 1714;
[1914] 3 K.B. 242; 111 L. T. 256; 78 J. P.
362; 12 L. G. E. 931; 24 Cox C.C. 268;
30 T. L. E. 506 : not followed in Clifford v.
Battley, 84 L. J. K.B. 615; [1915] 1 K.B.
531 ; 112 L. T. 765 ; 79 J. P. 180; 13 L. G. E.
505 ; 31 T. L. E. 117.
Bateman v. Bateman, 70 L. J. P. 29 ; [1901]
P. 136; 84 L. T. 64, 331 : criticised in De
Gasquet James v. Mecklenburg-Schwerin
(Duke), 83 L. J. P. 40; [1914] P. 53;
110 L. T. 121; 58 S. J. 341; 30 T. L. E. 329.
Bateman (Lady) v. Faber, 67 L. J. Ch. 130;
[1898] 1 Ch. 144 ; 77 L. T. 576 ; 46 W. E. 215 :
dictum of Lindley, M.E., in, explained and
distinguished in Wimperis, In re; Wicken v.
Wilson, 83 L. J. Ch. 511; [1914] 1 Ch. 502;
110 L. T. 477 ; 58 S. J. 304.
Bateman v. Poplar District Board of Works,
56 L. J. Ch. 149 ; 33 Ch. D. 360 : principle of,
followed in House Property and Investment
Co. V. Grice, 9 L. G. E. 758; 75 J. P. 395.
Bates, Ex parte, 48 L. J. Bk. 113 ; 11 Ch. D.
914; 41 L. T. 263; 27 W. E. 927 : followed
in Victor v. Victor, 28 T. L. E. 131.
Batt V. Metropolitan Water Board, 80 L. J.
K.B. 1354; [1911] 2 K.B. 965; 105 L. T.
496; 9 L. G. E. 1123; 75 J. P. 545; 55 S. J.
714; 27 T. L. E. 579: followed in Mist v.
Metropolitan Water Board, 84 L. J. K.B.
2041; 13 L. G. E. 874; 113 L. T. 500.
Batt & Co.'s Trade Mark, In re, 67 L. J.
Ch. 576; 68 L. J. Ch. 557; [1898] 2 Ch.
432 : [1899] A.C. 428 : followed in Neuchatel
Asphalte Co.'s Application, In re, 82 L. J.
Ch. 414; [1913] 2 Ch. 291; 108 L. T. 966;
30 E. P. C. 349; 57 S. J. 611 ; 29 T. L. E. 505.
Bayer's Design, In re, 24 E. P. C. 65:
25 E. P. C. 56 : followed in Pugh v. Riley
Cycle Co., 81 L. J. Ch. 476; [1912] 1 Ch. 613;
106 L. T. 592; 29 E. P. C. 196; 28 T. L. E.
249.
Bayley's Settlement, In re, L. E. 9 Eq. 491 ;
L. E. 6 Ch. 590 : considered in Wise's Settle-
ment, In re ; Smith v. Waller, 82 L. J. Ch. 25 ;
[1913] 1 Ch. 41; 107 L. T. 613; 57 S. J. 28.
Beal V. Sheppard, Cro. Jac. 109 : followed in
Heathcote and Raivson's Contract, In re,
108 L. T. 185; 57 S. J. 374.
Beard v. London General Omnibus Co.,
69 L. J. Q.B. 895; [1900] 2 Q.B. 530;
83 L. T. 362 ; 48 W. E. 658 : considered and
distinguished in Ricketts v. Tilling, 84 L. J.
K.B. 342; [1915] 1 K.B. 644; 112 L. T. 137;
31 T. L. E. 17.
Beattie v. Ebury (Lord), 43 L. J. Ch. 80:
[1873] W. N. 194 : not followed in Spalding v.
Carnage, 83 E. J. Ch. 855; [1914] 2 Ch. 405;
111 L. T. 829 ; 58 S. J. 722.
Beavan, In re; Davies, Banks & Co. v.
Beavan, 81 L. J. Ch. 113: [19121 1 Ch. 196;
105 L. T. 784 : followed in Lloyd v. Coote d
Ball, 84 L. J. K.B. 567; [1915] 1 K.B. 242;
112 L. T. 344.
BectiYe (Earl) v. Hodgson, 33 L. J. Ch.
601 ; 10 H.L. C. 656 : distinguished in Stevens,
In re, 84 L. J. Ch. 432; [1915] 1 Ch. 429;
112 L. T. 982 ; 59 S. J. 441.
Bellerby v. Heyworth, 79 L. J. Ch. 402;
[1910] A.C. 377 ; 102 L. T. 545 ; 74 J. P. 257 ;
54 S. J. 441 ; 26 T. L. E. 403 : applied and
followed in Royal College of Veterinary Sur-
geons V. Kennard, 83 L. J. K.B. 267; [1914]
1 K.B. 92; 109 L. T. 866; 78 J. P. 1;
23 Cox C.C. 645; 30 T. L. E. 3 : applied in
Rex V. Registrar of Joint Stock Companies ;
Boioen, Ex parte, 84 L. J. K.B. 229; [1914]
3 K.B. 1161; 112 L. T. 38; 30 T. L. E. 707.
Bellerby v. Rowland & Marwood's Steam-
Ship Co., 71 L. J. Ch. 541: ri9021 2 Ch. 14;
86 L. T. 671; 50 W. E. 566; 9 Manson, 291 :
distinguished in Rowell v. John Rowell <t
Son, Lim., 81 L. J. Ch. 759; [1912] 2 Ch.
609 ; 107 L. T. 374 ; 56 S. J. 704.
Explained, Distinguished, and Commented On
2039
Bennett, In re, 65 L. J. Ch. 422; [1896]
1 Ch. 778 ; 74 L. T. 157 ; 44 W. E. 419 :
followed in Sherry, In re, [1913] 2 Ch. 508;
109 L. T. 474.
Bennett's Estate, In re, [1898] 1 Ir. E. 185 :
not followed in Cross's Trust, [1915] 1 Ir. E.
304.
Bentley v. Black, 9 T. L. E. 580: distin-
guished in Pacaya Rubber and Produce Co.,
In re; Burns' Case, 83 L. J. Ch. 432; [1914]
1 Ch. 542; 110 L. T. 578; 58 S. J. 269;
30 T. L. E. 260.
Berdsley v. Pilkington, Gouldsb. 100: fol-
lowed in Coaker v. WiUcocks, 80 L. J. K.B.
1026; [1911] 2 K.B. 124; 104 L. T. 769;
27 T. L. E. 357.
Bernard (or Burnard) v. Aaron, 31 L. J.
C.P. 334; 9 Jur. N.S. 470: followed in
Associated Portland Cement Manufacturers v.
Ashton, 84 L. J. K.B. 519; [1915] 2 K.B. ] ;
112 L. T. 486 ; 20 Com. Cas. 165.
Berry v. Gaukroger, 72 L. J. Ch. 319, 435;
[1903] 2 Ch. 116 : 88 L. T. 521 ; 51 W. E. 449 :
applied in Charles worth. In re; Tew v. Briggs,
81 L. J. Ch. 267 ; [1912] 1 Ch. 319 ; 105 L. T.
817 ; 56 S. -J. 108.
Bettison, In re, L. E. 4 A. & E. 294;
followed in Corke v. Rainger, [1912] P. 69;
76 J. P. 87 ; 28 T. L. E. 130.
Beverley, In re, 70 L. J. Ch. 295: [1901]
1 Ch. 681; 84 L. T. 296; 49 W. E. 343:
distinguished in Cooke's Settlement, In re,
[1913] 2 Ch. 661.
Beverley, In re, 70 L. J. Ch. 295; [1901]
1 Ch. 681; 84 L. T. 296; 49 W. E. 343:
observations of Buckley, J., in, considered in
Cooke's Settlement, In re, 83 L. J. Ch. 76;
[1913] 2 Ch. 661 ; 109 L. T. 705 ; 58 S. J. 67 :
followed in Craven, In re; Watson v. Craven,
83 L. J. Ch. 403; [1914] 1 Ch. 358; 109 L. T.
846; 58 S. J. 138.
Bewley v. Atkinson, 49 L. J. Ch. 153;
13 Ch. D. 283 : considered in Smith v.
Colbourne, 84 L. J. Ch. 112; [1914] 2 Ch.
.533; 111 L. T. 927; .58 S. J. 783.
Bideford Parish, In re, [1900] P. 314: ap-
proved in Sutton v. Bowden, 82 Tj. J. Ch. 322;
[1913] 1 Ch. 518; 108 L. T. 637; 29 T. L. E.
262.
Bigge, In re; Granville v. Moore, 76 L. J.
Ch. 413: [1907] 1 Ch. 714; 96 L. T. 903:
overniled in Watkins' Settlement, In re,
80 L. J. Ch. 102; [1911] 1 Ch. 1; 103 L. T.
749; 55 S. J. 63.
Billericay Rural Council v. Poplar Guar-
dians, 80 L. .T. K.B. 1241 ; [1911] 2 K.B. 801 ;
9 L. G. E. 796; 55 S. J. 647 : explained in
Colchester Corporation v. Gepp (No. 1),
81 L. J. K.B. 356; [1912] 1 K.B. 477;
106 L. T. 54; 76 J. P. 97; 10 L. G. E. 109;
66 S. J. 160.
Birch v. Sherratt, 36 L. J. Ch. 925 ; L. E.
2 Ch. 644 ; 17 L. T. 153 : followed in Watkins'
Settlement, In re, 80 L. J. Ch. 102; [1911]
1 Ch. 1; 103 L. T. 749; 55 S. J. 63.
Bird V. Jones, 15 L. J. Q.B. 82; 7 Q.B. 742:
considered in Herd v. Weardale Steel, Coal,
and Coke Co., 82 L. J. K.B. 1354; [1913]
3 K.B. 771; 109 L. T. 457.
Birkenhead Corporation v. London and
North-Western Railway, 55 L. J. Q.B. 48;
15 Q.B. D. 572 ; 50 J. P. 84 : distinguished
in Thurrock Grays and Tilbury Joint Sewerage
Board v. Goldsmith, 79 J. P. 17.
Birmingham and Midland Motor Omnibus
Co. V. London and North-Western Railway,
83 L. J. K.B. 474; [1913] 3 K.B. 850;
109 L. T. 64 ; 57 S. J. 752 : followed in
Adam Steamship Co. v. London Assurance
Corporation, 83 L. J. K.B. 1861; [1914]
3 K.B. 12.56; 111 L. T. 1031; 12 Asp. M.C.
559; 20 Com. Cas. 37 ; 59 S. J. 42.
Biscoe V. Jackson, 56 L. J. Ch. 93, 540:
35 Ch. D. 460; 56 L. T. 753 : discussed and
distinguished in Wilson, In re; Twentyman v.
Simpson, 82 L. J. Ch. 161 ; [1913] 1 Ch. 314 ;
108 L. T. 321 ; 57 S. J. 245.
Bisgood V. Henderson's Transvaal Estates,
77 L. J. Ch. 486; [1908] 1 Ch. 743; 98 L. T.
809; 15 Manson, 163; 24 T. L. E. 510 : applied
in Etheridge v. Central Uruguay Northern
Extension Raihcay, 82 L. J. Ch. 333; [1913]
1 Ch. 425; 108 L. T. 362; 20 Manson, 172;
57 S. J. 341; 29 T. L. E. 328 : observations
in, followed and applied in Hickman v. Kent
or Romney Marsh Sheep Breeders' .'Associa-
tion. 84 L. J. Ch. 688: [1915] 1 Ch. 881;
113 L. T. 159 ; 59 S. J. 478.
Black v. Cornelius, 6 Eettie, 581: distin-
guished in KnoT and Robb v. Scottish Garden
Suburb Co., [1913] S. C. 872.
Blackburn v. Vigors, 57 L. J. Q.B. 114;
12 App. Cas. 531; 57 L. T. 730; 36 W. E.
449 ; 6 Asp. M.C. 216 : dictum of Lord Hals-
bury in, commented on and explained in
Muir's Executors v. Craig's Trustees, [1913]
S. C. 349.
Blackburn and District Benefit Building
Society v. Cunliffe, Brooks & Co., 54 L. J. Ch.
1091 ; 29 Ch. D. 902 ; 53 L. T. 741 : dis-
approved in Sinclair v. Brougham, 83 L. J.
Ch. 465; [1914] A.C. 398; 111 L. T. 1;
58 S. J. 302; 30 T. L. E. 315.
Blackburn Local Board v. Sanderson,
71 L. J. K.B. 590; [1902] 1 K.B. 794;
86 L. T. 304; 66 J. P. 452: followed in
Metropolitan Water Board v. Bunn. 82 L. J.
K.B. 1024; [1913] 3 K.B. 181; 109 L. T.
132; 57 S. J. 625: 29 T. L. E. 588.
Blackwell v. Pennant, 22 L. J. Ch. 155;
9 Hare, 551 : distinguished in Sheffield (Earl).
In re: Ryde v. Bristow, 80 L. J. Ch. 521;
[1911] 2 Ch. 267.
2040 Cases Followed, Xot Followed, Approved, Overruled, Questioxed,
Blackwood v. Reg., 52 L. J. P.C. 10: 8 App.
Cas. 82 : followed in Rex v. Lovitt, 82 L. J.
P.C. 140: [1912] A.C. 212; 105 L. T. 650;
28 T. L. R. 41.
Blair v. Duncan, 71 L. J. P.C. 22 : [19021
A.C. 37 ; 86 L. T. 157 ; 50 W. E. 369 ; followed
in Da Costa, In re, 81 L. J. Ch. 293; [1912]
1 Ch. 337; 106 L. T. 458; 56 S. J. 240:
28 T. L. E. 189.
Blake v. Gale, 55 L. J. Ch. 5.59 ; 32 Ch. D.
571 : considered and distinguished in Eustace,
In re; Lee v. McMillan, 81 L. J. Ch. 529;
[1912] 1 Ch. 561 ; 106 L. T. 789; 56 S. J. 468.
Blake v. Lanyon, 6 Term Rep. 221 : fol-
lowed in Wilkins and Brothers, Lim. v.
Weaver, 84 L. J. Ch. 929; [1915] 2 Ch. 322.
Blake v. Midland Railway, 73 L. J. K.B.
179 ; [1904] 1 K.B. -503 ; 90 L. T. 433 ; 68 J. P.
215 : 20 T. L. R. 191 : distinguished in Popple
V. Frodingham Iron and Steel Co., 81 L. J.
K.B. 769; [1912] 2 K.B. 141 : 106 L. T. 703.
Blakeway v. Patteshall, [1894] 1 Q.B. 247:
followed in Haywood v. Farabee, 59 S. J. 234.
Blanchard v. Bridges, 5 L. J. K.B. 78;
5 N. & M. 567; 1 H. & W. 630; 4 Ad. & E.
176 : distinguished in Bailey v. Holborn d
Frascati, Lim., 83 L. J. Ch. 515; [1914]
1 Ch. 598; 110 L. T. 574; 58 S. J. 321.
Bland's Settlement, In re; Bland v. Perkin,
74 L. J. Ch. 28 ; [1905] 1 Ch. 4 ; 91 L. T. 681 :
distinguished in Brook, In re; Brook v. Hirst,
111 L. T. 36 ; 58 S. J. 399.
Bloomenthal v. Ford, 66 L. J. Ch. 253;
[1897] A.C. 156; 76 L. T. 205; 45 ^Y. R. 449;
4 Manson, 156 : applied in Gresham Life
Assurance Society v. Crowther, 83 L. J. Ch.
867; [1914] 2 Ch. 219.
Bluett V. Stutchburys Lim., 24 T. L. E.
469 : distinguished in Nelson v. Nelson <t
Sons, 82 L. J. K.B. 827; [1913] 2 K.B. 471;
108 L. T. 719; 20 Manson, 161; 57 S. J. 501;
29 T. L. E. 461.
Blyth V. Hulton, 72 J. P. 401 : distinguished
in Scott V. Director of Public Prosecutions,
83 L. J. K.B. 1025;' [1914] 2 K.B. 868;
111 L. T. 59; 78 J. P. 267 ; 30 T. L. E. 396.
Boag V. Lockwood Collieries, [1910] S. C.
51, was wrongly decided : so stated by Lord
Shaw in Macdonald or Duris v. Wilsons and
Clyde Coal Co., 81 L. J. P.C. 188; [1912] A.C.
513; 106 L. T. 905; 56 S. J. 550; 28 T. L. E.
431.
Board v. Board, 43 L. J. Q.B. 4: L. E.
9 Q.B. 48 ; 29 L. T. 459 ; 22 W. E. 206 :
distinguished in Tennant's Estate, In re,
[1913] 1 Ir. E. 280.
Bodega Co. v. Read, 84 L. J. Ch. 36; [1914]
2 Ch 757; 111 L. T. 884; 59 S. J. 58;
.31 T. L. E. 17 : followed in Bodega Co. v.
Martin, 85 L. J. Ch. 17; [1915] 2 Ch. 385;
31 T. L. E. 595.
Boden, In re, 76 L. J. Ch. 100; [1907] 1 Ch.
132; 95 L. T. 741 : discussed in Rose, In re,
85 L. J. Ch. 22; 113 L. T. 142.
Boden, In re, 76 L. J. Ch. 100; [1900] ICh.
132; 95 L. T. 741: followed in Boulcotfs
Settlement, In re, 104 L. T. 205 ; 55 S. J. 313.
Bond, In re; Capital and Counties Bank,
ex parte, 81 L. J. K.B. 112: [1911] 2 K.B.
988; 19 Manson, 22: applied" in Renison,
In re; Greaves, ex parte, 82 L. J. K.B. 710;
[1913] 2 K.B. 300; 108 L. T. 811; 20 Manson,
115; 57 S. J. 445.
Boon V. Quance, 102 L. T. 443: distin-
guished in Smith v. Horlock, 109 L. T. 196.
Born, In re, 69 L. J. Ch. 669; [1900] 2 Ch.
4.33; 83 L. T. 51 : applied in Meter Cab Co.,
In re, [1911] 2 Ch. 557; 105 L. T. 572;
56 S. J. 36.
Borthwick v. Elderslie Steamship Co.
(No. 2), 74 L. J. K.B. 772; [1905] 2 K.B.
516 ; 93 L. T. 387 ; 53 W. E. 643 ; 21 T. L. E.
630 : distinguished in Ashover Fluorspar Mines
V. Jackson, 80 L. J. Ch. 687; [1911] 2 Ch.
3.55; 105 L. T. 334; 55 S. J. 649; 27 T. L. E.
530.
Boss V. Helsham, 36 L. J. Ex. 20; L. E.
2 Ex. 72; 15 L. T. 481: distinguished in
Eastwood V. Ashton, 82 L. J. Ch. 313 ; [1913]
2 Ch. 39; 108 L. T. 759; 57 S. J. 533.
Boswell V. Coaks, 36 Ch. D. 444 : distin-
guished in Spalding v. Carnage, 83 L. J. Ch.
855; [1914] 2 Ch. 405; 111 L. T. 829;
58 S. J. 722.
Bottomley, In re, 10 Morrell, 262: discussed
in Webb, In re, 83 L. J. K.B. 1386; [1914]
3 K.B. 387; 58 S. J. 581.
Bouch V. Sproule, 56 L. J. Ch. 1037 ; 12 App.
Cas. 385 ; 57 L. T. 345 ; 36 W. E. 193 : fol-
lowed in Evans, In re; Jones v. Evans,
82 L. J. Ch. 12; [1913] 1 Ch. 23; 107 L. T.
604; 19 Manson, 397 ; 57 S. J. 60.
Boulter v. Kent Justices, 66 L. J. Q.B. 787 ;
[1897] A.C. 556; 77 L. T. 288; 46 W. E. 114;
61 J. P. 532 : followed in Huish v. Liverpool
Justices, 83 L. J. K.B. 133 ; [1914] 1 K.B. 109 ;
110 L. T. 38; 78 J. P. 45; 12 L. G. E. 15;
58 S. J. 83; 30 T. L. E. 25 : dictum of Lord
Halsbury in, followed in Attwood v. Chapman,
83 L. J. K.B. 1666; [1914] 3 K.B. 275;
111 L. T. 726; 79 J. P. 65; 30 T. L. R. 596.
Bourke v. Cork and Macroom Railway,
4 L. R. Ir. 682 : dicta of Dowse, B., in, dis-
approved by Lord Shaw in Taif Vale Railway
V. Jenkins, 82 L. J. K.B. 49;' 107 L. T. 564;
57 S. J. 27; 29 T. L. R. 19.
Bourne v. Swan & Edgar, 72 L. J. Ch. 168;
[1903] 1 Ch. 211; 87 L. T. 589; 51 W. E.
213 : observations of Farwell, J., in, applied
in Royal Warrant Holders' Association v.
Deane d Real, 81 L. J. Ch. 67; [1912] 1 Ch.
10; 105 L. T. 623; 28 E. P. C. 721; 56 S. J.
12; 28 T. L. E. 6.
Explained, Distinguished, and Commented On.
2041
Boussmaker, Ex parte, 13 Ves. 71 : followed
in Rombach Baden Clock Co., In re, 84 L. J.
K.B. 1558 ; 31 T. L. E. 492.
Bowling & Welby's Contract, In re, 64 L. J.
Ch. 427; [1895] 1 Ch. 663; 72 L. T. 411;
43 W. R. 417; 2 Manson, 257 : distinguished
by Astbury, J., in Llewellyn v. Kasintoe
Rubber Estates, 84 L. J. Ch. 70; [1914]
2 Ch. 670; 112 L. T. 676; 21 Manson, 349;
58 S. J. 808; 30 T. L. R. 683.
Bowman v. Milbanke, 1 Lev. 130 : distin-
guished in Shepherd, In re; Mitchell v. Loram,
58 S. J. 304.
Boxall V. Boxall, 53 L. J. Ch. 838 ; 27 Ch.
D. 220 ; 51 L. T. 771 ; 32 W. E. 896 : applied in
Hewson v. Shelley, 82 L. J. Ch. 551: [1913]
2 Ch. 384; 57 S. J. 717 ; 29 T. L. E. 699.
Bradford Banking Co. v. Briggs, 56 L. J.
Ch. 364; 12 App. Gas. 29; 56 L. T. 62;
85 W. E. 521 : observations in, followed and
applied in Hickman v. Kent (or Romney
Marsh) Sheep Breeders' Association, 84 L. J.
Ch. 688; [1915] 1 Ch. 881; 113 L. T. 159;
59 S. J. 478.
Bradford Navigation Co., In re, 39 L. J. Ch.
733; L. E. 5 Ch. 600; 23 L. T. 487 : discussed
in Woking Urban Council (Basingstoke Canal)
Act, 1911, In re, 83 L. J. Ch. 201; [1914]
1 Ch. 300; no L. T. 49; 78 J. P. 81;
12 L. G. E. 214; 30 T. L. R. 135.
Bradley v. Carritt, 72 L. J. K.B. 471;
[1903] A.C. 253 ; 88 L. T. 633 ; 51 W. E. 636 :
discussed and distinguished in Kreglinger v.
New Patagonia Meat and Cold Storage Co.,
82 L. J. Ch. 79 ; [1914] A.C. 25 ; 109 L. T. 802 ;
58 S. J. 97; 30 T. L. R. 114.
Bradley v. James, Ir. R. 10 C. L. 441 : con-
sidered in Mackay, In re, [1915] 2 Ir. E. 347.
Brennan v. Dillon, Ir. E. 7 Eq. 215 ; 8 Eq.
94 : approved in Gilbert, In the goods of,
[1911] 2 Ir. E. 36.
Brewster, In re, 77 L. J. Ch. 605; [1908]
2 Ch. 365 : followed in De Sommery , In re,
82 L. J. Ch. 17 ; [1912] 2 Ch. 622 ; 57 S. J. 78.
Brickwood v. Reynolds, 67 L. J. Q.B. 26;
[1898] 1 Q.B. 95; 77 L. T. 456; 46 W. E.
130 : distinguished in Smith v. Lion Brewery
Co., 80 L. J. K.B. 566; [1911] A.C. 150;
104 L. T. 321; 75 J. P. 273; 55 S. J. 269;
27 T. L. E. 261 : commented on in Usher's
Wiltshire Breivery v. Bruce, 84 L. J. K.B.
417; [1915] A.C. 433; 112 L. T. 651; 6 Tax
Cas. 399; 59 S. J. 144; 31 T. L. E. 104.
Bridger, In re; Brompton Hospital v. Lewis,
63 L. J. Ch. 186; [1894] 1 Ch. 297; 70 L. T.
204; 42 W. E. 179 : followed in Harris, In re,
81 L. J. Ch. 512; [1912] 2 Ch. 241 ; 106 L. T.
755 : applied in Groos, In re, 84 L. J. Ch.
422; [1915] 1 Ch. 572; 112 L. T. 984; 59 S. J.
477.
Bridgewater Navigation Co., In re, 60 L.J.
Ch. 415; [1891] 2 Ch. 317; 64 L. T. 576:
applied in Spanish Prospecting Co., In re,
80 L. J. Ch. 210; [1911] 1 Ch. 92; 103 L. T.
609; 18 Manson, 191; 55 S. J. 63; 27 T. L. R.
76.
Bridgwater's Settlement, In re; Partridge
V. Ward, 79 L. J. Ch. 746; [1910] 2 Ch. 342;
103 L. T. 421 : applied in Gresham Life Assur-
ance Society v. Crowther, 83 L. J. Ch. 867 ;
[1914] 2 Ch. 219.
Brierly v. Kendall, 21 L. J. Q.B. 161; 17
Q.B. 937 : applied in Belsize Motor Supply
Co. V. Cox, 83 L. J. K.B. 261; [1914] 1 K.B.
244; 110 L. T. 151.
Briggs V. Hartley, 19 L. J. Ch. 416 : over-
ruled in Bowman, In re, 85 L. J. Ch. 1;
[1915] 2 Ch. 447; 59 S. J. 703; 31 T. L. R.
618.
Briggs V. Mitchell, 48 Sc. L. R. 606: ap-
proved in Lee v. " Bessie " (Owners), 81 L. J.
K.B. 114; [1912] 1 K.B. 83; 105 L. T. 659:
12 Asp. M.C. 89.
Brinsmead v. Harrison, 40 L. J. C.P. 281 :
L. R. 6 C.P. 584; 24 L. T. 798; 19 W. R.
956 : held inapplicable in Bradley d Cohn v.
Ramsay, 106 L. T. 771 ; 28 T. L. R. 388.
Bristol (Marquis) Settlement, In re; Grey
(Earl) V. Grey, 66 L. J. Ch. 446; [1897] 1 Ch.
946; 76 L. T. 757; 45 W. R. 552 : followed in
Cavendish Settlement, In re; Grosvenor v.
Butler (No. 2), 81 L. J. Ch. 400; [1912] 1 Ch.
794; 106 L. T. 510; 56 S. J. 399: dis-
tinguished in Fraser Settlement, In re; Ind v.
Eraser, 82 L. J. Ch. 406; [1913] 2 Ch. 224:
108 L. T. 960; 57 S. J. 462: followed in
Wood, In re; Wodehouse v. Wood, 82 L. J.
Ch. 203; [1913] 1 Ch. 303; 108 L. T. 31;
57 S. J. 265.
Bristow V. Eastman, 1 Esp. 172 : followed in
Cowern v. Nield, 81 L. J. K.B. 865; [1912]
2 K.B. 419; 106 L. T. 984; 56 S. J. 552;
28 T. L. R. 423.
Britannia Merthyr Goal Co. v. David,
79 L. J. K.B. 153; [1910] A.C. 74; 101 L. T.
833; 64 S. J. 151 ; 26 T. L. R. 164 : explained
in Watkins v. Naval Colliery Co., 81 L. J.
K.B. 1056; [1912] A.C. 693; 107 L. T. 321;
56 S. J. 719; 28 T. L. R. 569.
65
2042 Cases Followed, Not Followed, Approved, Overruled, Questioned,
British Asbestos Co. v. Boyd, 73 L. J. Ch.
31 ; [1903] 2 Ch. 4.39 ; 88 L. T. 763; 51 W. E.
667 : applied in Channell Collieries Trust v.
St. Margarets, Dover, and Martin Mill Light
Railway, 84 L. J. Ch. 28; [1914] 2 Ch. 506;
111 L. T. 1051; 21 Manson. 328; 30 T. L. R.
'647.
British Gold Fields of West Africa, In re,
'68 L. J. Ch. 412; [1899] 2 Ch. 7; 80 L. T.
638; 47 W. R. 552; 6 Manson, 334 : observa-
tions of Lindley, M.R., in, applied in Debtor
(No. 68 of 1911), In re, 80 L. J. K.B. 1224;
[1911] 2 K.B. 652 ; 104 L. T. 905.
British Mutual Banking Co. v. Charnwood
Forest Railway, 56 L. J. Q.B. 449 ; 18 Q.B. D.
714; 57 Ti. T. 833; 35 W. R. 590: dicta of
Bowen, L.J., in, disapproved in Lloyd v.
Grace, Smith £ Co., 81 L. J. K.B. 1140;
[1912] A.C. 716; 109 L. T. 531; 56 S. J. 723;
28 T. L. E. 547.
British Waggon Co. v. Lea, 49 L. J. Q.B.
321; 5 Q.B. D. 149; 42 L. T. 437; 28 W. R.
349; 44 J. P. 440 : followed in Sorrentino v.
Buerger. 84 L. J. K.B. 725 ; [1915] 1 K.B. 307 ;
112 L. T. 294; 20 Com. Cas. 132.
British Workman's and General Insurance
Co. v. Cunliffe, 18 T. L. R. 425 : discussed in
Phillips V. Royal London Mutual Insurance
Co., 105 L. T.'l36.
Brock V. Bradley, 33 Beav. 670: distin-
guished in Laing, In re, 81 L. J. Ch. 686;
[1912] 2 Ch. 386.
Brocklesby v. Temperance Permanent Build-
ing Society, 64 L. J. Ch. 433; [1895] A.C.
173 : 72 L. T. 477 ; 43 W. R. 606 ; 59 J. P. 676 :
applied in Fry v. Smellie, 81 L. J. K.B. 1003;
[1912] 3 K.B. 282 ; 106 L. T. 404.
Broderick v. London County Council, 77 L. J.
K.B. 1127; [1908] 2 K.B. 807; 99 L. T. 569;
24 T. L. R. 822 : applied in Martin v. Man-
chester Corporation, 106 L. T. 741; 76 J. P.
251 ; 28 T. L. R. 344.
Bromley Rural Council v. Chittenden,
70 J. P. 409 : dictum of Cozens-Hardy, M.R.,
in, not followed in Colchester Corporation v.
Gepp, 81 L. J. K.B. 356; [1912] 1 K.B. 477;
106 L. T. 54; 76 J. P. 97; 10 L. G. R. 109;
56 S. J. 160.
Brook V. Badley, 37 L. J. Ch. 884; L. R.
3 Ch. 672 : followed in Daioson, In re; Pat-
tisson V. Bathurst, 84 L. J. Ch. 476; [1915]
1 Ch. 626; 113 L. T. 19; 59 S. J. 363;
31 T. L. R. 277.
Brooke, In re, 64 L. J. Ch. 21 ; [1894] 2 Ch.
600; 71 L. T. 398 : dicta in, disapproved in
Oxley, In re, 83 L. J. Ch. 442; [1914] 1 Ch.
604; 110 L. T. 626; 58 S. J. 319 ; 30 T. L. E.
327.
Brookman v. Mather, 29 T. L. R. 276:
followed in Keen v. Price, 83 L. J. Ch. 865;
[1914] 2 Ch. 98 ; 58 S. J. 495 ; 30 T. L. R. 494.
Brooks, In re, 76 L. T. 771: followed in
Cooke's Settlement, In re, 83 L. J. Ch. 76;
[1913] 2 Ch. 661; 109 L. T. 705; 58 S. J. 67:
distinguished in Craven, In re; Watson v.
Craven, 83 L. J. Ch. 403; [1914] 1 Ch. 358;
109 L. T. 846; 58 S. J. 138.
Brown, In re; Dixon v. Brown, 55 L. J. Ch.
556 ; 32 Ch. D. 597 ; 54 L. T. 789 : considered
in Wells v. Wells, 83 L. J. P. 81; [1914]
P. 157; 111 L. T. 399; 58 S. J. 555:
30 T. L. R. 545.
Brown, In re ; Penrose v. Manning, 63 L. T.
159: approved in Pearce, In re; Alliance
Assurance Co. v. Frances, 83 L. J. Ch. 266;
[1914] 1 Ch. 254; 110 L. T. 168; 58 S. J. 197.
Brown v. Crossley, 80 L. J. K.B. 478; [1911]
1 K.B. 603; 104 L. T. 429; 75 J. P. 177;
9 L. G. R. 194; 27 T. L. R. 194 : followed in
Printz V. Sewell, 81 L. J. K.B. 905; [1912]
2 K.B. 511; 106 L. T. 880; 76 J. P. 295;
10 L. G. R. 665; 28 T. L. R. 396; and in
White V. Jackson, 84 L. J. K.B. 1900;
79 J. P. 447 ; 31 T. L. R. 605.
Brown v. Lilley, 7 T. L. R. 427 : discussed
and held not to be good law in Tarry v. Witt.
84 L. J. K.B. 950 ; 112 L. T. 1034 ; 31 T. L. R.
207.
Brown v. Mitchell, [1910] S. C. 369; 47 Sc.
L. R. 216 : observation in, approved in
Bonnett d Foioler, In re, 82 L. J. K.B. 71 ;
[1913] 2 K.B. 537 ; 108 L. T. 497 ; 77 J. P. 281.
Brown & Gregory, In re, 73 L. J. Ch. 430:
[1904] 1 Ch. 627; 52 W. R. 412; 11 Manson,
218 : distinguished in Peruvian Railway Con-
struction Co., In re, [1915] 2 Ch. 144; 59 S. J.
579; 31 T. L. R. 464.
Browne v. Furtado, 72 L. J. K.B. 296;
[1903] 1 K.B. 723 ; 88 L. T. 309 ; 67 J. P. 161 :
discussed in Westminster School v. Reith.
84 L. J. K.B. 168; [1915] A.C. 259; 112 L. T.
91 ; 6 Tax Cas. 486 ; 59 S. J. 57 ; 31 T. L. R. 31.
Browne v. Hammond, Johns. 210: applied
in Seaton, In re; Ellis v. Seaton, 83 L. J. Ch.
124; [1913] 2 Ch. 614.
Browne v. La Trinidad, 57 L. J. Ch. 292:
37 Ch. D. 1 : distinguished in Hickman v.
Kent or Romney Marsh Sheep Breeders'
Association, 84 L. J. Ch. 688: [1915] 1 Ch.
881 ; 113 L. T. 159 ; 59 S. J. 478.
Explained, Distixguished, and Commented On.
2043
Bruner v. Moore, 73 L. J. Ch. 377; [1904]
1 Ch. 305; 89 L. T. 738; 52 W. R. 295;
20 T. L. R. 125 : applied in Morrell v. Studd
£ Millington, [1913] 2 Ch. 648; 109 L. T. 628.
Bryan v. Collins, 16 Beav. 14 : discussed and
not followed in Cattell, In re, 83 Ij. J. Ch. 322 ;
[1914] 1 Ch. 177; 110 L. T. 137; 58 S. J. 67.
Buccleuch (Duke) v. Metropolitan Board of
Works, 41 L. J. Ex. 137; L. R. 5 H.L. 418:
27 L. T. 1 : considered and distinguished in
Recher v. North British and Mercantile Insur-
ance Co., 84 L. J. K.B. 1813; [1915] 3 K.B.
277 ; 113 L. T. 827.
Buckley v. Buckley, 19 L. E. Ir. 544: fol-
lowed in Fry, In re, 81 L. J. Ch. 640; [1912]
2 Ch. 86; 106 L. T. 999; 56 S. J. 518.
Bulkeley v. Stephens, 65 L. J. Ch. 597;
[1896] 2 Ch. 241 ; 74 L. T. 409 ; 44 W. R. 490 :
distinguished in Sale, In re; Nisbet v. Philp,
[1913] 2 Ch. 697.
Bulli Coal Mining Co. v. Osborne, 68 L. J.
B.C. 49; [1899] A.C. 351; 80 L. T. 430;
47 W. R. 545 : followed in Oelkers v. Ellis,
83 L. J. K.B. 658; [1914] 2 K.B. 139;
110 L. T. 332.
Bullock V. London General Omnibus Co.,
76 L. J. K.B. 127; [1907] 1 K.B. 264;
95 L. T. 905; 23 T. L. R. 62 : application of,
discussed in Poulton v. Moore, 83 L. J. K.B.
875 ; 109 L. T. 976.
Burdick v. Garrick, 39 L. J. Ch. 369; L. E.
5 Ch. 233 ; 22 L. T. 502 : approved in Reid-
Newfoundland Co. v. Anglo-American Tele-
graph Co., 81 L. J. B.C. 224; [1912] A.C.
555 ; 105 L. T. 691 ; 28 T. L. R. 385.
Burland v. Earle, 71 L. J. P.C. 1; [19021
A.C. 83; 85 L. T. 553 ; 50 W. R. 241 ; 9 Man-
son, 17 : followed in Dominion Cotton Mills
Co. V. Amyot, 81 L. J. P.C. 233; [1912]
A.C. 546; 106 L. T. 934; 28 T. L. R. 467.
Burman v. Zodiac Steam Fishing Co.,
83 L. J. K.B. 1683; [1914] 3 K.B. 1039;
112 L. T. 58; [1914] W.C. & I. Rep. 520;
30 T. L. R. 651 : considered in Stephenson v.
Rossall Steam Fishing Co., 84 L. J. K.B. 677;
[1915] W.C. & I. Rep. 121; 112 L. T. 890.
Burnard (or Bernard) v. Aaron, 31 L. J.
C.P. 334; 9 Jur. (n.s.) 470: distinguished in
Associated Portland Cement Manujacturers v.
Ashion, 84 L. J. K.B. 519; [1915] 2 K.B. 1;
112 L. T. 486; 20 Com. Cas. 165.
Burns v. Baird, [1913] S. C. 358: commented
on in Baird v. Ancient Order of Foresters,
[1914] S. C. 965.
Burns-Burns' Trustee v. Brown, 64 L. J.
Q.B. 248; [1895] 1 Q.B. 324: 71 L. J. 825;
43 W. R. 195; 2 Manson, 23: applied in
Godding, In re, 83 L. J. K.B. 1222; [1914]
2 K.B. 70; 110 L. T. 207; 58 S. J. 221.
Burr, In re, 01 L. J. Q.B. 591: [1892]
2 Q.B. 467; 66 L. T. 553; 9 Morrell, 133:
followed in Webb, In re, [1914] 3 K.B. 387;
111 L. T. 175.
Burra v. Ricardo, 1 Cab. & E. 478: ques-
tioned in Lloyds Bank v. Swiss Bankverein,
108 L. T. 143; 18 Com. Cas. 79; 57 S. J. 243;
29 T. L. R. 219.
Burrows v. Lang, 70 L. J. Ch. 607 ; [1901J
2 Ch. 502: 84 L. T. 623; 49 W. R. 564 : dis-
tinguished in Lewis v. Meredith, 82 L. J. Ch.
255; [1913] 1 Ch. 571; 108 L. T. 549.
Burrows v. Rhodes, 68 L. J. Q.B. 545^
[1899] 1 Q.B. 816 ; 80 L. T. 591 ; 48 W. R. 13;
63 J. P. 532 : considered in Leslie, Lim. v.
Reliable Advertising and Addressing Agency,
84 L. J. K.B. 719; [1915] 1 K.B. 652;
112 L. T. 947 ; 31 T. L. R. 182.
Burton v. Hudson, 78 L. J. K.B. 905 ; [1909]
2 K.B. 564; 101 L. T. 233; 73 J. P. 401;
25 T. L. R. 641 : followed in Talbot de
Malahide (Lord) v. Dunne, [1914] 2 Ir. R. 125.
Butler V. Butler, 15 P. D. 126; 62 L. T.
477 : considered in Palmer v. Palmer, 83 L. J.
P. 58; [1914] P. 116; 110 L. T. 752; 58 S. J.
416 ; 30 T. L. R. 409.
Butler V. Wildman, 3 B. & Aid. 398: distin-
guished in Kacianoff v. China Traders Insur-
ance Co., 83 L. J. K.B. 1393; [1914] 3 K.B.
1121; 30 T. L. R. 546.
Butterknowie Colliery Co. v. Bishop Auck-
land Industrial Co-operative Co., 75 L. J. Ch.
541: [1906] A.C. 305: 94 L. T. 795; 70 J. P.
361 ; 22 T. L. R. 516 : considered in Beard v.
Moira Colliery Co., 84 L. J. Ch. 155; [1915]
1 Ch. 257 ; 112 L. T. 227 ; 59 S. J. 103.
Caballero v. Henty, 43 L. J. Ch. 635 ; L. E.
9 Ch. 447 : there is no conflict between tb'is
case and Carroll v. Keayes (Ir. R. 8 Eq. 97) :
so held in Clements v. Conroy, [1911] 2 Ir. R.
500. ^ ^
Cadman v. Cadman, 55 L. J. Ch. 833;
33 Ch. D. 397 ; 55 L. T. 569 : followed in
Badger, In re, 82 L. J. Ch. 264; [1913] 1 Ch.
385 ; 108 L. T. 441 ; 57 S. J. 339.
Cairney v. Back, 75 L. J. K.B. 1014 ; [1906]
2 K.B. 746 ; 96 L. T. Ill ; 22 T. L. E. 776 :
applied in Sinnott v. Bowden, 81 L. J. Ch.
832; [1912] 2 Ch. 414; 107 L. T. 609: ri913]
W.C. & I. E^p. 464; 28 T. L. E. 594.
Caistor Rural District Council v. Taylor,
71 J. P. 310 : a]iproved and followed in Rex v.
Beacontree Justices, 84 L. J. K.B. 2230;
[1915] 3 K.B. 388 ; 31 T. T.. R. 509.
Calcraft v. Guest, 67 L. J. Q.B. 505 ; [1898 1
1 Q.B. 7.59: 78 L. T. 283; 46 W. E. 420:
considered in .ishburton v. Pape, 82 L. J. Ch.
527; [1913] 2 Ch. 469; 109 L. T. 381.
2044 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Calico Printers Association v. Booth, 8'2 L. J
K3. 985; [1913] 3 K.B. 652; [1913] W.C
& I. Rep. 540; 109 L. T. 123; 57 S. J. 662
29 T. L. R. 664 : explained in Gotobed v
Petchell, 83 L. J. K.B. 429 ; [1914] 2 K.B. 36
[1914] W.C. & I. Eep. 115; 110 L. T. 453
58 S. J. 249; 30 T. L. E. 253.
Calico Printers Association v. Higham,
81 L. J. K.B. 232; [1912] 1 K.B. 93; [1912]
W.C. Rep. 104; 105 L. T. 734; 56 S. J. 89;
28 T. L. R. 53 : dictum of Farwell, L.J., in,
doubted in Calico Printers Association v.
Booth, 82 L. J. K.B. 985; [1913] 3 K.B. 652;
[1913] W.C. & I. Rep. 540; 109 L. T. 123;
57 S. J. 662; 29 T. L. R. 664.
Californian Copper Syndicate v. Harris,
6 Fraser, 894 ; 5 Tax Gas. 159 : approved and
fallowed in Commissioner of Taxes v. Mel-
bourne Trust, 84 L. J. P.C. 21 ; [1914] A.C.
1001; 111 L. T. 1040; 30 T. L. R. 685.
Cameron v. Young, 77 L. J. P.C. 68; [1908]
A.C. 176; 98 L. T. 592: distinguished in
Mellon V. Henderson, [1913] S. C. 1207.
Campbell v. Paddington Parishioners, 2 Rob.
Ecc. 558 : criticised in Sutton V. Bowden,
82 L. J. Ch. 322 ; [1913] 1 Ch. 518; 108 L. T.
637; 29 T. L. R. 267.
Canadian Land Reclaiming and Colonizing
Co., In re; Coventry and Dixon's Case, 14 Ch.
D. 660; 42 L. T. 559; 28 W. R. 775 : followed
in Irish Provident Assurance Co., In re,
[1913] 1 Ir. R. 352.
Cane, In re, 60 L. J. Ch. 36; 63 L. T. 746:
applied in Seaton, In re; Ellis v. Seaton,
83 L. J. Ch. 124; [1913] 2 Ch. 614.
Canning Jarrah Timber Co., In re, 69 L. J.
Ch. 416; [1900] 1 Ch. 708; 82 L. T. 409;
7 Manson, 439 : explained in General Motor
Cab Co., In re, 81 L. J. Ch. 505; 106 L. T.
709; 28 T. L. R. 352 : followed in Sandwell
Park Colliery Co., In re, 83 L. J. Ch. 549;
[1914] 1 Ch. 589; 110 L. T. 766; 58 S. J. 432.
Capital and Counties Bank v. Warriner,
1 Com. Cas. 314 : followed in Ant. Jurgens
Margarinefabricken v. Dreyfus, 83 L. J. K.B.
1844; [1914] 3 K.B. 40; 19 Com. Cas. 333.
Cardiff Corporation v. Hall, 80 L. J. K.B.
644; [1911] 1 K.B. 1009; 104 L. T. 467;
27 T. L. R. 339 : considered in Carlin v.
Stephen, [1911] S. C. 901 : considered in
Silcock V. GoUghtly, 84 L. J. K.B. 499;
[1915] 1 K.B. 748; [1915] W.C. & I. Rep.
164; 112 L. T. 800.
Carlin v. Stephen, [1911] S. C. 901;
5 B.W.C.C. 486 : considered in Silcock v.
Galightly, 84 L. J. K.B. 499; [1915] 1 K.B.
748 ; [1915] W.C. & I. Rep. 164 ; 112 L. T. 800.
Carlish v. Salt, 75 L. J. Ch. 175; [1906]
1 Ch. 335; 94 L. T. 58; 54 W. R. 244 : dis-
tinguished in Shepherd v. Croft, 80 L. J. Ch.
170; [1911] 1 Ch. 521; 103 L. T. 874.
Carlisle Cafe Co. v. Muse, 67 L. J. Ch. 53:
77 L. T. 515 : followed and explained in Gold-
foot V. Welch, 83 L. J. 360; [1914] 1 Ch. 213;
109 L. T. 820 : followed in Hope v. Cowan,
82 L. J. Ch. 439; [1913] 2 Ch. 312; 108 L. T.
945; 57 S. J. 559; 29 T. L. R. 520.
Carnac, In re, 55 L. J. Q.B. 74; 16 Q.B. D.
308 ; 54 L. T. 439 ; 34 W. R. 421 : considered
in Wells V. Wells, 83 L. J. P. 81; [1914]
P. 157; 111 L. T. 399; 58 J. P. 555;
30 T. L. R. 545.
Carr, In re ; Jacobs, ex parte, 85 L. T. 552 ;
50 W. R. 336 : considered in Beesley, In re,
109 L. T. 910.
Carr v. Ingleby, 1 De G. & S. 362n. : fol-
lowed in Richardson, In re; Mahony v.
Treacy. [1915] 1 Ir. R. 39; and in Dempster,
In re, 84 L. J. Ch. 597; [1915] 1 Ch. 795;
112 L. T. 1124.
Carrick v. Errington, 2 P. Wms. 361
(affirmed, sub nam. Errington v. Carrick,
5 Bro. P.C. 391) : applied in Scott, In re,
80 L. J. Ch. 750.
Carroll v. Keayes, Ir. R. 8 Eq. 97: principle
of, applied in Clements v. Conroy, [1911]
2 Ir. R. 500.
Carter and Kenderdine's Contract, In re,
66 L. J. Ch. 408; [1897] 1 Ch. 776; 76 L. T.
476; 45 W. R. 484; 4 Manson, 34: applied
in Hart, In re; Green, ex parte, 81 L. J. K.B.
1213; [1912] 3 K.B. 6; 107 L. T. 368.
Casey v. Hellyer, 55 L. J. Q.B. 207 ; 17 Q.B.
D. 97 ; 54 L. T. 103 ; 34 W. E. 337 : dis-
tinguished in Hopkins v. Collier, 29 T. L. E.
367.
Cassella's Trade Mark, In re, 79 L. J. Ch.
529; [1910] 2 Ch. 240; 102 L. T. 792;
27 E. P. C. 453 ; 54 S. J. 505 ; 26 T. L. E. 472 :
considered and applied in Sharpens Trade Mark,
In re, 84 L. J. Ch. 290; 112 L. T. 435;
32 E. P. C. 15 ; 31 T. L. E. 105.
Castle Spinning Co. v. Atkinson, 74 L. J.
K.B. 265; [1905] 1 K.B. 336; 92 L. T. 147;
53 W. E. 360 ; 21 T. L. E. 192 : applied and
followed in Calico Printers Association v.
Booth, 82 L. J. K.B. 985; [1913] 3 K.B. 652;
109 L. T. 123; [1913] W.C. & I. Rep. 540;
57 S. J. 662; 29 T. L. R. 664.
EXPLAIXED, DiSTIXGUISIIED, AND COMMENTED On.
2045
Caterham Urban Council v. Godstone Rural
Council, 73 L. J. K.B. 589; [1904] A.C. 171,
90 L. T. 653; 52 W. K. 625; 68 J. P. 429;
2 L. G. E. 596 : distinguished in Midlothian
County Council v. Musselburgh Magistrates,
[1911] S. C. 463.
Catlin, In re, 18 Beav. 508: distinguished
in Morgan & Co., In re, 84 L. J. Ch. 249;
[1915] 1 Ch. 182; 112 L. T. 239; 59 S. J. 289.
Caton V. Summerlee and Mossend Iron and
Coal Co., 4 Fraser, 989 : followed in Graham
V. Barr and Thornton, [1913] S. C. 538;
[1913] W.C. & I. Rep. 202.
Catt V. Tourle, 38 L. J. Ch. 665 ; L. R. 4 Ch.
654 : considered in London County Council v.
Allen, 83 L. J. K.B. 1695; [1914] 3 K.B. 642.
Cattle V. Stockton Waterworks Co., 44 L. J.
Q.B. 139; L. E. 10 Q.B. 453; 33 L. T. 475 :
followed in Remorquage d Helice (Society
Anonyme) v. Bennetts, 80 L. J. K.B. 228;
[1911] 1 K.B. 243; 16 Com. Cas. 24;
27 T. L. R. 77.
Cavalier v. Pope, 74 L. J. K.B. 857 ; 75 L. J.
K.B. 609 ; [1905] 2 K.B. 757 ; [1906] A.C. 428 ;
93 L. T. 475; 95 L. T. 65; 21 T. L. R. 747;
22 T. L. E. 648 : applied in Ryall v. Kidwell,
83 L. J. K.B. 1140; [1914] 3 K.B. 135;
111 L. T. 240; 30 T. L. R. 503; in Middleton
V. Hall, 108 L. T. 804; 77 J. P. 172; and
distinguished in Melloyi v. Henderson, [1913]
S. C. 1207.
Cave V. Coleman, 7 L. J. (o.s.) K.B. 25;
3 Man. & Ry. 2 : dictum of Bayley, J., in,
disapproved by Lord Moulton in Heilbut,
Symons d: Co. v. Buckleton, 82 L. J. K.B.
245; [1913] A.C. 30; 107 L. T. 769; 20 Man-
son, 54.
Cave V. Horsell, 81 L. J. K.B. 981 ; [1912]
3 K.B. 533; 107 L. T. 186; 28 T. L. R. 543 :
distinguished in Derby Motor Cab Co. v.
Crompton and Evans Union Bank, 57 S. J.
701 ; 29 T. L. R. 673.
Cavendish v. Strutt, 73 L. J. Ch. 247;
[1904] 1 Ch. 524 ; 90 L. T. 500 ; 52 W. R. 333 ;
20 T. L. R. 99 : judgment in, corrected in
Giles V. Randall, 84 L. J. K.B. 786; [1915]
1 K.B. 290; 112 L. T. 271; 59 S. J. 131.
Cavendish Bentinck v. Fenn, 57 L. J. Ch.
552; 12 App. Cas. 652; 57 L. T. 773;
36 W. R. 441 : applied in Irish Provident
Assurance Co., In re, [1913] 1 Jr. R. 352.
Cavendish Settlement, In re; Grosvenor v.
Butler, 81 L. .J. Ch. 400; [1912] 1 Ch. 794:
106 L. T. 510; 56 S. J. 399: distinguished
in Fraser Settlement, In re; Ind v. Fraser,
82 L. J. Ch. 406; [1913] 2 Ch. 224; 108 L. T.
960; 57 S. J. 462 : and followed in Wood,
In re; Wodehouse v. Wood, 82 L. J. Ch. 203;
[1913] 1 Ch. 303; 108 L. T. 31; 57 S. J. 265.
Caygill V. Thwaite, 49 J. P. 614; 33 W. R.
581 : considered and followed in Leavett v.
Clark, 84 L. J. K.B. 2157; [1915] 3 K.B. 9;
113 L. T. 424.
Chalchman v. Wright, Noy, 118: followed
in Forbes v. Samuel, 82 L! J. K.B. 1135;
[1913] 3 K.B. 706 ; 109 L. T. 599 ; 29 T. L. R.
544.
Challenger v. Sheppard, 8 Term Rep. 597:
distinguished in Jones, In re, 84 L. J. Ch. 222;
[1915] 1 Ch. 246; 112 L. T. 409; 59 S. J. 218.
Challis v. London and South-Western Rail-
viray, 74 L. J. K.B. 569; [1905] 2 K.B. 154;
93 L. T. 330 ; 53 W. R. 613 ; 21 T. L. R. 486 :
discussed and distinguished in Clayton v.
Hardwick Colliery Co., [1914] W.C. & I. E-ep.
343; 111 L. T. 768.
Chamberlain's Wharf, Lim. v. Smith,
69 L. J. Ch. 783; [1900] 2 Ch. 605; 83 L. T.
238 ; 49 W. E. 91 : considered in Osborne v.
Amalgamated Society of Railway Servants,
80 L. J. Ch. 315; [1911] 1 Ch. 540; 104 L. T.
267 ; 27 T. L. E. 289.
Chant, In re, 69 L. J. Ch. 601; [1900]
2 Ch. 345; 83 L. T. 341; 48 W. E. 646:
followed in Jones, In re, 84 L. J. Ch. 222;
[1915] 1 Ch. 246; 112 L. T. 409; 59 S. J. 218.
Chaplin v. Chaplin, 3 P. Wms. 229: applied
in Pinkerton v. Pratt, [1915] 1 Ir. E. 406.
Chapman v. Fylde Water Co., 64 L. J. Q.B.
15; [1894] 2 Q.B. 599; 71 L. T. 539;
43 W. E. 1 ; 59 J. P. 5 : distinguished
in Stacey v. M etropolitaii Water Board,
9 L. G. E. 174; and in Batt. v. Metropolitan
Water Board, 80 L. J. K.B. 1354; [1911]
2 K.B. 965.
Chapman v. Salt, 2 Vern. 646: considered in
Shields, In re; C orb ould- Ellis v. Dales,
81 L. J. Ch. 370; [1912] 1 Ch. 591 ; 106 L. T.
748.
Charing Cross, West End, and City Elec-
tricity Supply Co. V. London Hydraulic Power
Co., 83 L. J. K.B. 116, 1352; [1913] 3 K.B.
442; [1914] 3 K.B. 772; 109 L. T. 635;
111 L. T. 198; 77 J. P. 378; 78 J. P. 305;
11 L. G. E. 1013; 12 L. G. E. 807;
29 T. L. E. 649 ; 30 T. L. E. 441 : distin-
guished in Goodbody v. Poplar Borough
Council, 84 L. J. K.B. 1230; 79 J. P. 218;
13 L. G. E. 166.
Charles v. Jones, 56 L. J. Ch. 745 ; 35 Ch. D.
544 ; 56 L. T. 848 ; 35 W. E. 645 : followed
in Williams v. Jones, 55 S. J. 500.
Charlesworth v. Mills, 61 L. .J. Q.B. 830
[1892] A.C. 231 ; 66 L. T. 690; 41 W. E. 129
56 J. P. 628 : distinguished in Dublin City
Distillery v. Doherty, 83 L. J. P.C. 265
[1914] A.C. 823; 111 L. T. 81; 58 S. J. 413
Chaytor, In re; Chaytor v. Horn, 74 L. J
Ch. 106; [1905] 1 Ch. 233; 92 L. T. 290;
53 W. E. 251 : distinguished in Inman, In re,
84 L. J. Ch. 309; [1915] 1 Ch. 187; 112 L. T.
240; 59 S. J. 161.
Chaytor v. Trotter, 87 L. T. 33: applied in
Morgan. In re; Vachell V. Morgan, 83 L. J.
Ch. 573; [1914] 1 Ch. 910; 110 L. T. 903.
2046 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Cherry v. Boultbee, 9 L. J. Ch. 118; 4 Myl.
& Cr. 442 : considered in Turner v. Turner,
80 L. J. Ch. 473; [1911] 1 Ch. 716; 104 L. T.
901 : explained in Phik v. Pink, 81 L. J. Ch.
353 ; [1912] 1 Ch. 498 ; 105 L. T. 338 ; 56 S. J.
274 : principle of held inapplicable in Smelting
Corporation, In re; Seaver v. Smelting Cor-
poration, 84 L. J. Ch. 571; [1915] 1 Ch. 472;
113 L. T. 44; [1915] H. B. R. 126: con-
sidered in Peruvian Railway Construction Co.,
In re, [1915] 2 Ch. 144; 59 S. J. 579; 31
T. L. R. 464; and in Dacre, In re, [1915]
2' Ch. 480.
Cheslyn v. Cresswell, 3 Bro. P.C. 246: dis-
tinguished in Whiting, In re; Ormond v. De
Launay, 82 L. J. Ch. 309; [1913] 2 Ch. 1;
108 L. T. 629; 57 S. J. 461.
Chesterfield (Earl) v. Harris, 77 L. J. Ch.
688; [1908] 2 Ch. 397; 99 L. T. 558;
24 T. L. R. 763 : applied in Staffordshire and
Worcestershire Canal Navigation v. Bradley,
81 L. J. Ch. 147; [1912] 1 Ch. 91; 106 L. T.
215; 56 S. J. 91.
Chicago and North-West Granaries Co., In
re, 67 L. J. Ch. 109; [1898] 1 Ch. 263;
77 L. T. 677 : followed in Tewkesbury Gas Co.,
In re, 80 L. J. Ch. 723; [1912] 1 Ch. 1;
105 L. T. 569; 18 Manson, 395; 56 S. J. 71;
28 T. L. R. 40.
Chilcote V. Youldon, 29 L. J. M.C. 197;
3 E. & E. 7 : discussed in Blacketi v. Ridout,
84 L. J. K.B. 1535; [1915] 2 K.B. 415.
Child, In re, 61 L. J. Q.B. 250; [1892]
3 Q.B. 77; 66 L. T. 204; 40 W. R. 560;
9 Morrell, 103 : followed in Miller, In re,
81 L. J. K.B. 1180; [1912] 3 K.B. 1.
Chilton V. Blair & Co., [1914] W.C. &
I. Rep. 346; 58 S. J. 669; 30 T. L. R. 623 :
distinguished in Herbert v. Fox d Co., 84 L. J.
K.B. 670; [1915] 2 K.B. 81; [1915] W.C.
& I. Rep. 154 ; 112 L. T. 833; 59 S. J. 249.
Chinery v. Yiall, 29 L. J. Ex. 180 ; 5 H. & N.
988; 2 L. T. 466; 8 W. R. 629 : applied in
Belsize Motor Supply Co. v. Cox, 83 L. J.
K.B. 261: [1914] 1 K.B. 244; 110 L. T. 151.
Chisholm v. Doulton, 58 L. J. Q.B. 133;
92 Q.B. D. 736; 60 L. T. 966 : distinguished in
Armitage v. Nicholson, 108 L. T. 993; 77 J. P.
339; 11 L. G. R. 547 ; 29 T. L. R. 425.
Cholmondeley (Earl) v. Clinton (Lord),
19 Ves. 261 ; G. Cooper, 80 : explained in
Rakusen v. Ellis, Mvnday d Clarke, 81 L. J.
Ch. 409; [1912] 1 Ch. 831; 106 L. T. 656;
gS T. L. R. 326.
Christiansen's Trade Mark, In re, 3 R. P. C.
54 : applied in Coleman v. Smith, 81 L. J.
Ch. 16; [1911] 2 Ch. 572; 28 T. L. R. 65.
Christie v. Richardson, 12 L. J. Ex. 86;
2 D. [N.S.] 503; 10 M. & W. 688; 6 Jur.
1069 : discussed in Barker v. Lewis and Peat,
82 L. J. K.B. 843 ; [1913] 3 K.B. 34 ; 108 L. T.
941 ; 57 S. J. 577 ; 29 T. L. R. 565.
Christopharson v. Naylor, 1 Mer. 320 : dis-
tinguished in Williams, In re; Metcalf v.
Williama, 83 L. J. Ch. 570; [1914] 2 Ch. 61;
110 L. T. 923; 58 S. J. 470.
Church Army, In re, 75 L. J. Ch. 467;
94 L. T. 559 ; 22 T. L. R. 428 : followed in
Orphan Working School and Alexandra
Orphanage, In re, 81 L. J. Ch. 627; [1912]
2 Ch. 167 : followed and applied in Ait. -Gen.
V. Foundling Hospital, 83 L. J. Ch. 673;
[1914] 2 Ch. 154 ; 110 L. T. 894 ; 78 J. P. 233 ;
12 L. G. R. 500 ; 58 S. J. 398 ; 30 T. L. R. 372.
Churchill, In re; Hiscock v. Lodder, 79 L. J.
Ch. 10; [1909] 2 Ch. 431; 101 L. T. 380
53 S. J. 697 : distinguished in West, In re
Westhead v. Aspland, 82 L. J. Ch. 488
[1913] 2 Ch. 345 ; 109 L. T. 39.
Churchill v. Denny, 44 L. J. Ch. 578; L. R.
20 Eq. 534 : referred to in Biscoe, In re,
111 L. T. 902.
Churchward v. Churchward, 64 L. J. P. 18
[1895] P. 7; 71 L. T. 782; 43 W. R. 380
distinguished in Scott v. Scott, 82 L. J. P. 39
[1913] P. 52; 108 L. T. 49; 57 S. J. 227
29 T. L. R. 206.
Churchward v. Coleman, 36 L. J. Q.B. 57;
L. R. 2 Q.B. 18 : followed in Rex v. Mellor,
83 L. J. K.B. 996; [1914] 2 K.B. 588;
110 L. T. 802; 58 S. J. 361; 30 T. L. R. 355.
Citizens' Bank of Louisiana v. First National
Bank of New Orleans, 43 L. J. Ch. 269; L. R.
6 H.L. 352 : applied in Gresham Life Assur-
ance Society v. Croicther, 83 L. J. Ch. 867 ;
[1914] 2 Ch. 219.
Citizens Insurance Co. v. Parsons, 51 L. J.
P.C. 11; 7 App. Cas. 96; 45 L. T. 721:
followed in John Deere Plow Co. v. Wharton,
84 L. J. P.C. 64; [1915] A.C. 330; 112 L. T.
183; 31 T. L. R. 35.
Citizens Life Assurance Co. v. Brown,
73 L. J. P.C. 102; [1904] A.C. 423; 90 L. T.
739; 53 W. R. 176; 20 T. L. R. 497 : dis-
tinguished in Aiken v. Caledonian Railway,
[1913] S. C. 66.
Clapp V. Carter, [1914] W.C. & I. Rep. 80:
110 L. T. 491; 58 S. J. 232 : applied in Potter
V. Welsh d Sons, 83 L. J. K.B. 1852; [1914]
3 K.B. 1020; [1914] W.C. & I. Rep. 607;
112 L. T. 7 ; 30 T. L. R. 644.
Clark V. Gas Light and Coke Co., 21 T. L. R.
184 : discussed in Cardiff Corporation v. Hall,
80 L. J. K.B. 644; [1911] 1 K.B. 1009;
104 L. T. 467 ; 27 T. L. R. 339.
Explained, Distixguished, and Commexted Ox.
2047
Clark V. London General Omnibus Co.,
75 L. J. K.B. 907; [1906] 2 K.B. 648;
95 L. T. 435 : distinguished in Berry v. Humm,
84 L. J. K.B. 918; [1915] 1 K.B. 627;
31 T. L. R. 198.
Clark V. Newsam, 16 L. J. Ex. 296 i 1 Ex.
131 : followed in Smith, v. Streaffeild, 82 L. J.
K.B. 1237; [1913] 3 K.B. 764; 109 L. T. 173;
29 T. L. R. 707.
Clarke v. Callow, 46 L. J. Q.B. 53: dictum
of Brett, L.J., in, disapproved in North-
western Salt Co. V. Electrolytic Alkali Co.,
107 L. T. 439.
Clarke v. Clarke, 60 L. J. P. 97 ; [1891] P.
278 : dissented from and not followed in
Jones V. Jones, 82 L. J. P. 16; [1912] P. 295;
107 L. T. 590; 57 S. J. 10; 29 T. L. R. 22.
Clayton's Case, 1 Mer. 572, 608: rule in held
inapplicable in British Red Cross Society v.
Johnson, [1914] 2 Ch. 419; 58 S. J. 755;
30 T. L. R. 662.
Cleaver v. Mutual Reserve Fund Life
Association, 61 L. J. Q.B. 128; [1892] 1 Q.B.
147; 66 L. T. 220; 40 W. R. 230; 56 J. P.
180 : applied in Hall, In the goods of, 83 L. J.
P. 1 ; [1914] P. 1 ; 109 L. T. 587 ; 58 S. J. 30 ;
30 T. L. R. 1 : applied in Burgess' Policy
In re, 113 L. T. 443; 59 S. J. 546.
Clements, In re, 70 L. J. K.B. 58; [1901]
1 K.B. 260; 83 L. T. 464; 49 W. R. 176;
8 Manson, 27 : dicta of Wright, J., in, dis-
approved in Bagley, In re, 80 L. J. K.B. 168;
[1911] 1 K.B. 317; 103 L. T. 470; 18 Man-
son, 1; 55 S. J. 48.
Clements v. London and North-western
Railway, 63 L. J. Q.B. 837: [1894] 2 Q.B.
482; 70 L. T. 531, 896; 42 W. R. 663;
58 J. P. 818 : applied in Roberts v. Gray,
82 L. J. K.B. 362; [1913] 1 K.B. 520;
108 L. T. 232; 57 S. J. 143; 29 T. L. R. 149.
Clemow, In re, 69 L. J. Ch. 522: [1900]
2 Ch. 182 ; 82 L. T. 550 ; 48 W. R. 541 :
considered in Porter v. Williams, 80 L. J.
Ch. 127; [1911] 1 Ch. 188; 103 L. T. 798;
55 S. J. 45.
Clerk V. Day, Cm. Eliz. 313 : considered in
Davison's Settlemctit, In re, 83 L. J. Ch. 148;
[1913] 2 Ch. 498; 109 L. T. 666; 58 S. J. 50.
Close, Ex parte, 54 L. J. Q.B. 43; 14 Q.B.
D. 386; 51 L. T. 795; 33 W. R. 228 : distin-
guished in Dublin City Distillery v. Doherty,
83 L. J. P.C. 265; [1914] A.C. 823; 111 L. T.
81 ; 58 S. J. 413.
Clover, Clayton & Co. v. Hughes, 79 L. J.
K.B. 470; [1910] A.C. 242; 102 L. T. 340;
54 S. J. 375 ; 26 T. L. R. 359 : distinguished
in Spence v. Baird, [1912] S. C. 343; in
Ritchie v. Kerr, [1913] S. C. 613; [1913]
W.C. & I. Rep. 297 : observations of Lord
Loreburn, L.C., in, distinguished in Noden v.
Galloioaxjs, 81 L. J. K.B. 28; [1912] 1 K.B.
46 ; 105 L. T. 567 ; 55 S. J. 838 ; 28 T. L. R. 5 :
distinguished in Hawkins v. Powell's Tillery
Steam Coal Co., 80 L. J. K.B. 769; [1911]
1 K.B. 988; 104 L. T. 365; 55 S. J. 329;
27 T. L. R. 282.
Clunies-Ross, In re; Stubbings v. Clunies-
Ross, 47 L. J. N.C. 107; [1912] W. N. 33:
followed in Greenwood, In re, 81 L. J. Ch.
298 ; [1912] 1 Ch. 392 ; 106 L. T. 424 ; 56 S. J.
443.
Clutterbuck v. Clutterbuck, 108 L. T. 573;
29 T. L. R. 480 : disapproved in Tangye v.
Tangye, 83 L. J. P. 164; [1914] P. 201;
111 L. T. 944; 58 S. J. 723; 30 T. L. R. 649.
Clydebank Engineering Co. v. Castaneda,
74 L. J. P.C. 1; [1905] A.C. 6 ; 91 L. T. 666;
21 T. L. R. 58 : followed in Webster v. Bosan-
quet, 81 L. J. P.C. 205; [1912] A.C. 394;
106 L. T. 357 ; 28 T. L. R. 271.
Coakley v. Addie, [1909] S. C. 545: con-
sidered and explained in Popple v. Froding-
Jiam Iron and Steel Co., 81 L. J. K.B. 769;
[1912] 2 K.B. 141; 106 L. T. 703.
Cobbold, In re, [1903] 2 Ch. 299 : attention
called to errata in report of, in Davey, In re,
[1915] 1 Ch. 837.
Cockroft V. Black, 2 P. Wms. 298: dis-
cussed in Sutherland (Dowager Duchess),
In re; Michell v. Bubna (Countess), 84 L. J.
Ch. 126; [1914] 2 Ch. 720; 112 L. T. 72.
Cocks V. Manners, 40 L. J. Ch. 640: L. R.
12 Eq. 574; 24 L. T. 869 : followed in Smith,
In re; Johnson v. Bright-Smith, 83 L. J.
Ch. 687; [1914] 1 Ch. 937; 110 L. T. 898;
58 S. J. 494; 30 T. L. R. 411.
Cleveland (Duke), In re; Barnard v.
Wolmer, 62 L. .T. Ch. 955; [18931 3 Ch. 244:
followed in Upton-Cottrell-Dormer . In re,
84 L. J. Ch. 861; 112 L. T. 974; 31 T. L. R.
260.
Cohen, In re; Brookes v. Cohen, 80 L. J.
Ch. 208; [1911] 1 Ch. 37; 103 L. T. 626;
55 S. J. 11 : distinguished in Holland, In re,
84 L. J. Ch. 389; [1914] 2 Ch. 595;
112 L. T. 27.
2048 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Cohen v. Mitchell, 59 L. J. Q.B. 409;
25 Q.B. D. 262; 63 L. T. 206; 38 W. E. 551;
7 Morrell, 207 : application of, considered in
Teale, In re; Blackburn, ex parte, 81 L. J.
K.B. 1243; [1912] 2 K.B. 367 ; 106 L. T. 893;
56 S. J. 553; 28 T. L. R. 415: applica-
bility of rule laid down in, considered in
Behrend's Trust, In re; Surman v. Biddell,
80 L. J. Ch. 394 ; [1911] 1 Ch. 687 ; 104 L. T.
626; 18 Manson, 111; 55 S. J. 459.
Colburn v. Patmore, 3 L. J. Ex. 317; 1 Cr.
M. & R. 73 : considered in Leslie, Lim. v.
Reliable Advertising and Addressing Agency,
84 L. J. K.B. 719; [1915] 1 K.B. 652;
112 L. T. 947 : 31 T. L. R. 182.
Coldwell V. Holme, 23 L. J. Ch. 594 ; 2 Sm.
6 G. 31 : followed in Magrath, In re; Histed
V. Belfast University, 82 L. J. Ch. 532 ; [1913]
2 Ch. 331 ; 108 L. T. 1015 ; 29 T. L. E. 622.
Cole V. Accident Insurance Co., 5 T. L. B.
736 : considered in United London & Scottish
Insurance Co., In re; Brown's Claim, 84 L. J.
Ch. 620: [1915] 2 Ch. 167; 113 L. T. 397;
59 S. J. 529; 31 T. L. R. 419.
Cole V. Kernot, 41 L. J. Q.B. 221 ; L. E.
7 Q.B. 534n. : explained and distinguished in
Lind, In re, 84 L. J. Ch. 884; [1915] 2 Ch.
345; 59 S. J. 651.
Cole V. Miles, 57 L. J. M.C. 132; 60 L. T.
145 : followed in Arnold v. Morgan, 80 L. J.
K.B. 955; [1911] 1 K.B. 314; 103 L. T. 763;
75 J. P. 105; 9 L. G. E. 917.
Coleman v. Seymour, 1 Ves. sen. 209: fol-
lowed in Master's Settlement, In re, 80 L. J.
Ch. 190; [1911] 1 Ch. 321; 103 L. T. 899;
55 S. J. 170.
Colley's Patents v. Metropolitan Water
Board, 81 L. J. K.B. 126; [1912] A.C. 24;
105 L. T. 674; 9 L. G. E. 1159; 76 J. P. 33;
56 S. J. 51 ; 28 T. L. E. 48 : applied in
Metropolitan Water Board v. Avery, 83 L. J.
K.B. 178; [1914] A.C. 118; 109 L. T. 762;
78 J. P. 121; 12 L. G. E. 95; 58 S. J. 171;
;» T. L. E. 189.
Colls V. Home and Colonial Stores, 73 L. J.
Ch. 484; [1904] A.C. 179; 90 L. T. 687;
53 W. E. 30; 20 T. L. E. 475 : discussed and
explained in Paul v. Robson, 83 L. J. P.C.
304; L. E. 41 Ind. App. 180; 111 L. T. 481;
30 T. L. E. 533 : discussed in Davis v.
Marrable^ 82 L. J. Ch. 510; [1913] 2 Ch. 421 ;
109 L. T. 33 ; 57 8. J. 702 ; 29 T. L. E. 617.
Collyer v. Isaacs, 51 L. J. Ch. 14 ; 19 Ch. D.
342 ; 45 L. T. 567 ; 30 W. E. 70 : principles
in, applied in Pullan v. Koe, 82 L. J. Ch. 37;
[1913] 1 Ch. 9; 107 L. T. 811; 57 S. J. 97 :
explained and distinguished in Lind, In re,
84 L. J. Ch. 884; [1915] 2 Ch. 345; 59 S. J.
651.
Colne Valley Water Co. v. Hall, 5 L. G. E.
260 ; 6 L. G. E. 115 : explained in Parnell v.
Portsmouth Waterworks, 8 L. G. E. 1029;
75 J. P. 99.
Colonial Bank v. Cady, 60 L. J. Ch. 131;
15 App. Cas. 267 ; 63 L. T. 27 : considered in
Fuller V. Glyn, Mills, Currie & Co., 83 L. J.
K.B. 764; [1914] 2 K.B. 168; 110 L. T. 318;
19 Com. Cas. 186 ; 58 S. J. 235 ; 30 T. L. E.
162.
Colquhoun, Ex parte; Clift, in re, 38 W. E.
688 : considered in Wells V. Wells, 83 L. J.
P. 81; [1914] P. 157; 111 L. T. 399; 58 S. J.
555; 30 T. L. E. 545.
Coltness Iron Co. v. Black, 51 L. J. Q.B.
626 ; 6 App. Cas. 315 ; 45 L. T. 145 : applied
in Kauri Timber Co. v. Commissioner of Taxes,
[1913] A.C. 771; 109 L. T. 22; 29 T. L. E.
671.
Commercial Bank of Australia v. Wilson,
62 L. J. P.C. 61; [1893] A.C. 181; 68 L. T.
540 ; 41 W. E. 603 : considered and distin-
guished in Mackinnon's Trustee v. Bank of
Scotland, [1915] S. C. 411.
Company (0022 and 0023 of 1915), In re,
84 L. J. Ch. 382; [1915] 1 Ch. 520; 112 L. T.
1100; [1915] H. B. E. 65; 59 S. J. 302;
31 T. L. E. 241 : applied in Globe Trust,
In re, 84 L. J. Ch. 903; 113 L. T. 80;
59 S. J. 529 ; 31 T. L. E. 280.
Condon v. Mitchelstown Rural Council,
[1914] 1 Ir. E. 113 : approved in Marron v.
Cootehill No. 2 Rural Council, 84 L. J. P.C.
125; [1915] A.C. 792; 79 J. P. 401.
Constantinidi v. Constantinidi, 73 L. J. P.
91; [1904] P. 306; 91 L. T. 273; 20 T. L._E.
673 : distinguished in Loraine v. Loraine,
81 L. J. P. 22; [1904] P. 222 : considered in
Clarke v. Clarke, 80 L. J. P. 135; [1911]
P. 186; 105 L. T. 1; 55 S. J. 535.
Continental Tyre and Rubber Co. v. Daimler
Co., 84 L. J. K.B. 926; [1915] 1 K.B. 893;
112 L. T. 324; 20 Com. Cas. 209; 59 S. J.
232; 31 T. L. E. 159 : applied in The Poona,
84 L. J. P. 150; 112 L. T. 782; 59 S. J. 511;
31 T. L. E. 411.
Conway v. Pumpherston Oil Co., [1911]
S. C. 660; 4 B.W.C.C. 392: followed in
Jackson v. Denton Collieries Co., [1914] W.C.
& I. Eep. 91 ; 110 L. T. 559.
Cook V. Gordon, 61 L. J. Q.B. 445: con-
sidered in Abrahams v. Dimmock, 84 L. J.
K.B. 802; [1915] 1 K.B. 662; 112 L. T. 386;
59 S. J. 188; 31 T. L. E. 87.
ExPLAixED, Distinguished, and Commented On.
2049
Cook V. Lister, 32 L. J. C.P. 121; 13 C. B.
(n.s.) 543 : considered and adopted in Hira-
chand Punamchand v. Temple, 80 L. J.
K.B. 1155; [1911] 2 K.B. 330; 55 S. J. 519;
27 T. L. E. 430.
Cook V. Montreal (Owners), [1913] W.C.
& I. Eep. 206; 108 L. T. 164; 57 S. J. 282;
29 T. L. R. 233 : distinguished in Webber v.
Wansbrough Paper Co., 84 L. J. K.B. 127;
[1915] A.C. 51; [1915] W.C. & I. Rep. 313;
111 L. T. 658; 58 S. J. 685; 30 T. L. R. 615.
Cooke V. Eshelby, 56 L. J. Q.B. 505 ; 12 App.
Cas. 271 : followed in Wester Moffat Colliery
Co. V. Jeffrey, [1911] S. C. 346.
Cooke Y. Midland Great Western Railway of
Ireland, 78 L. J. P.C. 76; [1909] A.C. 229;
100 L. T. 626 ; 53 S. J. 319 ; 25 T. L. R. 375 :
distinguished in Jenkins v. Great Western
Railway, 81 L. J. K.B. 378; [1912] 1 K.B.
525; 105 L. T. 882 : distinguished in Barker
V. Herbert, 80 L. J. K.B. 1329 ; [1911] 2 K.B.
633; 27 T. L. R. 488: explained and dis-
tinguished in Latham v. Johnson, 82 L. J.
K.B. 258; [1913] 1 K.B. 398; 108 L. T. 4;
77 J. P. 137; 57 S. J. 127; 29 T. L. R. 124.
Coomber v. Berks Justices, 53 L. J. Q.B.
239 ; 9 App. Cas. 61 : followed in Glasgow
Court House Commissioners v. Glasgow Parish
Council, [1913] S. C. 194.
Cooper V. Cooper, 44 L. J. Ch. 6, 14; L. R.
7 H.L. 53, 69 : applied in Williams, In re;
Cunliffe v. Williams, 84 L. J. Ch. 578; [1915]
1 Ch. 450; 110 L. T. 569.
Cooper V. Macdonald, 42 L. J. Ch. 533;
L. R. 16 Eq. 258 : distinguished in Firth,
In re; Loveridge v. Firth, 83 L. J. Ch. 901;
[1914] 2 Ch." 386; 111 L. T. 332: dis-
tinguished in Beaumont, In re; Bradshaw v.
Packer, 82 L. J. Ch. 183; [1913] 1 Ch. 325;
108 L. T. 181 ; 57 S. J. 283.
Cooper V. Martin, L. R. 3 Ch. 47: discussed
in Safford's Settlement, In re, 84 L. J.
Ch. 766; [1915] 2 Ch. 211; 59 S. J. 666;
31 T. L. R. 529.
Cooper V. Reg., 49 L. J. Ch. 490; 14 Ch. D.
311 : followed in Yorke v. Regem, 84 L. J.
K.B. 947 ; [1915] 1 K.B. 852 ; 112 L. T. 1135 ;
31 T. L. R. 220.
Cooper V. Whittingham, 19 L. J. Ch. 752;
15 Ch. D. 501 : followed in Carlton Illus-
trators V. Coleman, 80 L. J. K.B. 510; [1911]
1 K.B. 771 ; 104 L. T. 413.
Cooper's Trusts, In re, [1873] W. N. 87:
followed in Pope and Easte's Contract,
In re, 80 L. J. Ch. 692; [1911] 2 Ch. 442;
105 L. T. 370.
Cope, In re; Cross v. Cross, 77 L. J. Ch.
558; [1908] 2 Ch. 1; 99 L. T. 374: distin-
guished in Williams, In re; Metcalf v.
Williams, 83 L. J. Ch. 570; [1914] 2 Ch. 61;
110 L. T. 923; 58 S. J. 470.
Copley V. Dorminque, 2 Lev. 167 : applied in
Benzon, In re, 83 L. J. Ch. 658; [1914] 2 Ch.
68 ; 110 L. T. 926 ; 21 Hansen, 8 ; 58 S. J. 430 ;
30 T. L. R. 435.
Corke v. Rainger, [1912] P. 69 ; 76 J. P. 87 ;
28 T. L. R. 130 : approved in Sutton v.
Bowden, 82 L. J. Ch. 322 ; [1913] 1 Ch. 518 ;
108 L. T. 637 ; 29 T. L. R. 262.
Cornish v. Alington, 28 L. J. Ex. 262;
4 H. & N. 549 : followed in Wester Moffat
Colliery Co. v. Jeffrey, [1911] S. C. 346.
Cornwall's Case, 2 Str. 881 : applied in Saqu
<{■ Lawrence v. Stearns, 80 L. J. K.B. 451;
[1911] 1 K.B. 426 ; 16 Com. Cas. 32.
Corporation of the Sons of the Clergy and
Skinner, In re, 62 L. J. Ch. 148; [1893] 1 Ch.
178; 67 L. T. 751; 41 W. R. 461 : followed
in Att.-Gen. v. Foundling Hospital, 83 L. J.
Ch. 673; [1914] 2 Ch. 154; 110 L. T. 894;
78 J. P. 233; 12 L. G. R. 500; 58 S. J. 398;
30 T. L. R. 372.
Corser v. Cartwright, L. R. 8 Ch. 971;
29 L. T. 596 : followed in Major, In re; Taylor
V. Major, 83 L. J. Ch. 461 ; [1914] 1 Ch. 278;
110 L. T. 422; 58 S. J. 286.
Cosier, In re; Humphreys v. Gadsden,
66 L. J. Ch. 2.36; [1897] 1 Ch. 325; 76 L. T.
31; 45 W. R. 376 : applied in TroUope, In re,
84 L. J. Ch. 553; [1915] 1 Ch. 853; 113 L. T.
153.
Costard and Wingfield's Case, 2 Leon. 44 :
dictum in, impugned in Att.-Gen. v. Reynolds,
80 L. J. K.B. 1073; [1911] 2 K.B. 888;
104 L. T. 852.
Cotterell v. Stratton, 42 L. J. Ch. 417 ; L. R.
8 Ch. 295; 28 L. T. 218 : followed in Rourke
V. Robinson, 80 L. J. Ch. 295 ; [1911] 1 Ch.
480; 103 L. T. 895.
Cottrell, In re; Buckland v. Bedingfield,
79 L. J. Ch. 189; [1910] 1 Ch. 402; 102 L. T.
157: applied in Dempster, In re; Borthwick
V. Lovell, 84 T;. J. Ch. 597; [1915] 1 Ch.
795; 112 L. T. 1124; and in Richardson,
In re, 84 L. J. Ch. 438; [1915] 1 Ch. 353;
112 L. T. 554.
2050 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Coulthard v. Consett Iron Co., 75 L. J. K.B.
869; [1905] 2 K.B. 869; 93 L. T. 756;
54 W. E. 139; 22 T. L. E. 25 : distinguished
in New Monckton Collieries v. Keeling,
80 L. J. K.B. 1205; [1911] A.C. 648;
105 L. T. 337 ; 55 S. J. 687 ; 27 T. L. E. 551.
County of Gloucester Bank v. Rudry Merthyr
Steam and House Coal Colliery Co., 64 L. J.
Ch. 451; [1895] 1 Ch. 629; 72 L. T. 375;
43 W. E. 486; 2 Manson, 223: followed in
Cox V. Dublin City Distillery, [1915] 1 Ir. E.
345.
County Palatine Loan and Discount Co., In
re; Teasdale's Case, 43 L. J. Ch. 578; L. E.
9 Ch. 54; 29 L. T. 707 : followed in Rowell
V. Jolin Rowell d Son, Lim., 81 L. J. Ch.
759; [1912] 2 Ch. 609; 107 L. T. 374;
56 S. J. 704.
Coupland v. Hardingham, 3 Camp. 398 :
dictum of Lord Ellenborough in, approved
and applied in Ait. -Gen. v. Roe, 84 L. J.
Ch. 322; [1915] 1 Ch. 235; 112 L. T. 581;
79 J. P. 263; 13 L. G. E. 335.
Coventry v. Higgins, 14 Siin. 30 : distin-
guished and criticised in Palfreeman, In re;
Public Trustee V. Palfreeman, 83 L. J. Ch.
702 ; [1914] 1 Ch. 877 ; 110 L. T. 972 ; 58 S. J.
456.
Cowan V. Milbourn, 36 L. J. Ex. 124;
79 J. P. 309; L. E. 2 Ex. 230; 16 L. T. 290;
15 W. E. 750 : overruled in Boioman, In re,
85 L. J. Ch. 1; [1915] 2 Ch. 447; 59 S. J.
703; 31 T. L. E. 618.
Cowes District Council v. Southampton
Steam Packet Co., 74 L. J. K.B. 665; [1905J
2 K.B. 287; 92 L. T. 658; 53 W. E. 602;
69 J. P. 298 ; 3 L. G. E. 807 ; 21 T. L. E. 506 :
considered in General Estates Co. v. Beaver,
84 L. J. K.B. 21 ; [1914] 3 K.B. 918 ; 111 L. T.
957; 79 J. P. 41; 12 L. G. E. 1146;
30 T. L. E. 634.
Cowley V. Newmarket Local Board, 62 L. J.
Q.B. 65; [1892] A.C. 345; 67 L. T. 486:
applied in Papicorth v. Battersea Borough
Council (No. 2), 84 L. J. K.B. 1881; 79 J. P.
309.
Cox V. Burbidge, 32 L. J. C.P. 89 ; 13 C. B.
(N.s.) 430 : followed in Bradley v. Wallaces,
82 L. J. K.B. 1074; [1913] 3 K.B. 629;
109 L. T. 281 ; 29 T. L. E. 705.
Cox V. Chamberlain, 4 Ves. 631 : applied in
Griffiths' Settlement, In re, 80 L. J. Ch. 176;
[1911] 1 Ch. 240; 104 L. T. 125.
Cox V. Leigh, 43 L. J. Q.B. 123; L. E.
9 Q.B. 333; 30 L. T. 494; 22 W. E. 730:
followed in Lewis v. Davies, 83 L. J. K.B.
598; [1914] 2 K.B. 469; 110 L. T. 461;
30 T. L. E. 301.
Cox V. Midland Counties Railway, 18 L. J.
Ex. 65; 3 Ex. 268; 13 Jur. 65 : followed in
Houghton v. Pilkington, [1912] 3 K.B. 308;
56 S. J. 633; 28 T. L. E. 492.
Crabbe and Robertson v. Stubbs, 22 Eettie,
860 : discussed and explained in Stubhs v.
Russell, 82 L. J. P.C. 98; [1913] A.C. 386;
108 L. T. 529; 29 T. L. E. 409.
Craig v. Wheeler, 29 L. J. Ch. 374: followed
in Wareham, In re, 81 L. J. Ch. 578; [1912]
2 Ch. 312; 107 L. T. 80; 56 S. J. 613.
Craske v. Wigan, 78 L. J. K.B. 994; [1909]
2 K.B. 635; 101 L. T. 6; 53 S. J. 560';
25 T. L. E. 632 : explained in Mitchinson v.
Day, 82 L. J. K.B. 421; [1913] 1 K.B. 603;
[1913] W.C. & I. Eep. 324; 108 L. T. 193;
57 S. J. 300; 29 T. L. E. 267 : followed in
Amys V. Barton, 81 L. J. K.B. 65; [1912]
1 K.B. 40; 105 L. T. 619; 28 T. L. E. 29.
Craster v. Thomas, 78 L. J. Ch. 734 ; [1909''
2 Ch. 348; 101 L. T. 66; 25 T. L. E. 659':
discussed and distinguished in Hewson v.
Shelley, 82 L. J. Ch. 551; [1913] 2 Ch. 384;
57 S. J. 717 ; 29 T. L. E. 699.
I Craven, In re, 83 L. J. Ch. 403; [1914]
' 1 Ch. 358; 109 L. T. 846; 58 S. J. 138 : fol-
lowed in Forster-Brown, In re, 84 L. J. Ch.
361; [1914] 2 Ch. 584; 112 L. T. 681.
Cremins v. Guest, Keen & Nettlefold, 77 L. J
K.B. 326; [1908] 1 K.B. 469; 98 L. T. 385
24 T. L. E. 189 : discussed in Edwards v
Wingham Agricultural Implement Co., 82 L. J
K.B. 998; [1913] 3 K.B. 596; 109 L. T. 50;
57 S. J. 701.
Creswell v. Davidson, 56 L. T. 811 : followed
in Lloyds Bank and Lillington, In re, 81 L. J.
Ch. 386; [1912] 1 Ch. 601; 106 L. T. 561;
56 S. J. 380.
Crippen, In the goods of, 80 L. J. P. 47;
[1911] P. 108; 104 L. T. 224; 55 S. J. 273;
27 T. L. E. 258 : applied in Hall, In the
goods of, 109 L. T. 587 ; 30 T. L. E. 1.
Cripps V. Wolcott, 4 Madd. 11: followed in
Poultney, In re, 81 L. J. Ch. 748; [1912]
2 Ch. 541 ; 107 L. T. 1; 56 S. J. 667.
Crips, In re; Crips v. Todd, 95 L. T. 86r< :
applied in Johnson, In re; Cowley v. Public
Trustee, 84 L. J. Ch. 393; [1915] 1 Ch. 435;
112 L. T. 935; 59 S. J. 333.
Crittall Manufacturing Co. v. London County
Council, 75 J. P. 203: disapproved in Hampton
V. Glamorgan County Council, 84 L. J. K.B.
1506 ; 113 L. T. 112 ; 13 L. G. R. 819.
Crook V. Seaford Corporation, L. E. 10 Eq.
678; L. E. 6 Ch. 551; 25 L. T. 1 : distin-
guished in Hoare V. Kingsbury Urban Council,
81 L. J. Ch. 666; [19121 2 Ch. 452: 107 L. T.
492; 76 J. P. 401 : 10 L. G. E. 829; 56 S. J.
704.
Crosfield's Application, In re, 79 L. J. Ch.
211 ; [1910] 1 Ch. 130 ; 101 L. T. 587 ; 54 S. J.
100; 26 T. L. E. 100 : applied in Pope's Elec-
Explained, Distinguished, and Commented Ox.
2051
trie Lamp Co.'s Application, In re, 80 L. J.
Ch. 682; [1911] 2 Ch. 382; 105 L. T. 680;
28 R. P. C. 629; 27 T. L. R. 567 : considered
and applied in Sharpe's Trade Mark, In re,
84 L. J. Ch. 290 : 112 L. T. 435 ; 32 R. P. C.
15; 31 T. L. R. 105.
Crosley, In re; Munns v. Burn, 35 Ch. D.
266; 57 L. T. 298; 35 W. R. 790 : considered
in Benzon, In re, 83 L. J. Ch. 658; [1914]
2 Ch. 68; 110 L. T. 926; 21 Manson, 8;
58 S. J. 430; 30 T. L. R. 435.
Crossley v. Crowther, 9 Hare, 384 : followed
in Paine, In re, 28 T. L. R. 201.
Crowder v. Stone, 7 L. J. (o.s.) Ch. 93;
3 Russ. 217 : distinguished in Dunn v.
Morgan, 84 L. J. Ch. 812; 113 L. T. 444.
Crowe V. Crisford, 17 Beav. 507: overruled
in Wareham, In re, 81 L. J. Ch. 578; [1912]
2 Ch. 312; 107 L. J. 80; 56 S. J. 613.
Crowther v. Appleby, 43 L. J. C.P. 7; L. R.
9 C.P. 23; 29 L. T. 580; 22 W. R. 265 :
distinguished in Forbes v. Samuel, 82 L. J.
K.B. 1135; [1913] 3 K.B. 706; 109 L. T. 599;
29 T. L. R. 544.
Croydon, In re; Hincks v. Roberts, 55 S. J.
632: followed in Blow, In re; St. Bartholo-
mew's Hospital (Governors) v. Camhden,
83 L. J. Ch. 185; [1914] 1 Ch. 233; 109 L. T.
913; 58 S. J. 136; 30 T. L. R. 117.
Cubison v. Mayo, 65 L. J. Q.B. 267 ; [1896]
1 Q.B. 246; 74 L. T. 65; 44 W. R. 473;
60 J. P. 212 : explained in Bell v. Girdle-
stone, 82 L. J. K.B. 696; [1913] 2 K.B. 225;
108 L. T. 648.
Cunnack v. Edwards, 65 L. J. Ch. 801;
[1896] 2 Ch. 679 ; 75 L. T. 122 ; 45 \Y. R. 99 :
distinguished in Tierney v. Tough, [1914]
1 Ir. R. 142.
Cunningham & Co., In re, 54 L. J. Ch. 448;
28 Ch. D. 682 : distinguished in Dublin City
Distillery v. Doherty, 83 L. J. P.C. 265;
[1914] A.C. 823; 111 L. T. 81; 58 S. J. 413.
D.
D. V. A. & Co., 69 L. J. Ch. 382; [1900]
1 Ch. 484 ; 82 L. T. 47 ; 48 W. R. 429 : applied
in Aberdonia Cars, Lim. v. Brown, Hughes d
Strachan, Lim., 59 S. J. 598.
D. V. D. — See Dickinson v. Dickinson.
Dagenham Thames Dock Co., In re; Hulse's
Claim, 4.3 L. J. Ch. 261; L. R. 8 Ch. 1U22 :
followed in Kilmer v. British Columbia Orchard
Lands, Lim.. 82 L. J. P.C. 77; [1913] A.C.
319; 108 L. T. 306; 57 S. .7. 338: 29 T. L. R.
319.
Dagnall, In re; Soan & Morley, ex parte,
65 L. .J. Q.B. G6r, ; | is'.x; ] 2 Q.P.. 407 : ir, 1,. T.
142; 45 W. R. 79; 3 Manson, 218 : applied in
Clark, In re ; Pope, ex parte, 84 L. J. K.B. 89 ;
[1914] 3 K.B. 1095; 112 L. T. 873; [1915]
H. B. R. 1; 59 S. J. 44.
Dalton V. Fitzgerald, 66 L. J. Ch. 604;
[1897] 2 Ch. 86; 76 L. T. 700; 45 W. R. 685 :
distinguished in TennanVs Estate, In re,
[1913] 1 Ir. R. 280.
Dane v. Mortgage Insurance Corporation,
63 L. J. Q.B. 144 ; [1894] 1 Q.B. 54 ; 70 L. T.
83; 42 W. R. 227 : applied in Law Guarantee
Trust and Accident Society, In re (No. 2),
84 L. J. Ch. 1; [1914] 2 Ch. 617; 111 L. T.
817; 58 S. J. 704; 30 T. L. R. 616.
D'Angibau, In re, 49 L. J. Ch. 756; 15 Ch.
D. 228 ; 43 L. T. 135 ; 28 W. R. 930 : applied in
Pullan V. Koe, 82 L. J. Ch. 37 ; [1913] 1 Ch. 9.
Danubian Sugar Factories v. Inland Revenue
Commissioners, 70 L. J. K.B. 211; [1901]
1 K.B. 245; 84 L. T. 101; 65 J. P. 212:
followed in Velazquez, Lim. v. Inland Revenue
Commissioners, 83 L. J. K.B. 1108; [1914]
3 K.B. 458; 111 L. T. 417; 58 S. J. 654;
30 T. L. R. 539.
Darlington v. Hamilton, 23 L. J. Ch. 1000;
Kay, 550 : followed in Lloyds Bank and
Lillington, In re, 81 L. J. Ch. 386; [1912]
1 Ch. 601 ; 106 L. T. 561 ; 56 S. J. 380.
Dashwood v. Magniac, 60 L. J. Ch. 210,
809; [1891] 3 Ch. 306; 65 L. T. 811 : applied
in Trevor-Batty e's Settlement, In re, 81 L. J.
Ch. 646; [1912] 2 Ch. 339; 107 L. T. 12;
56 S. J. 615.
Davey v. London and South-Western Rail-
way, 52 L. J. Q.B. 665; 11 Q.B. D. 213;
49 L. T. 739 : considered in Cutsforth v. John-
son, [1913] W. C. & I. Rep. 131 ; 108 L. T.
138.
David V. Rees, 73 L. J. K.B. 729; [1904J
2 K.B. 435; 91 L. T. 244; 52 W. R. 579;
20 T. L. R. 577 : considered in Reid v. Cupper,
84 L. J. K.B. 573; [1915] 2 K.B. 147;
112 L. T. 573; 59 S. J. 144; 31 T. L. R. 103.
Davidson, In re; Minty v. Bourne, 78 L. J.
Ch. 437; [1909] 1 Ch. 567; 99 L. T. 222;
24 T. L. R. 760 : distinguished in Salter, In
re, [1911] 1 Ir. R. 289.
Davidson's Settlement, In re, 42 L. J. Ch.
347; L. R. 15 Eq. 383 : followed in Anderson,
In re; New Zealand Official Assignee, ex
parte, 80 L. J. K.B. 919; [1911] 1 K.B. 896;
104 L. T. 221.
Davies v. Bush, Younge, 341 : considered in
Whitehead, In re, 82 L. J. Ch. 302; [1913]
2 Ch. 56; 108 L. T. 368; 57 S. J. 323.
Davies v. Davies, 30 W. R. 918: distin-
guished in Laing, In re, 81 L. J. Ch. 686;
[1912] 2 Ch. 386 ; 57 S. J. 80.
Davies v. Glamorgan Coal Co., 82 L. J.
K.B. 9.56; [1913] 3 K.B. 222; 109 L. T. 366;
2.? T. L. R. 612 : discussed in Randle V. Clay
Cross Co., [1913] 3 K.B. 795; 109 L. T. 522.
2052 Cases Followed, Xot Followed, Approved, Overruled, Questioned,
DaYies v. Rhymney Iron, &c. Co., 16 T. L. R.
329 : followed in Walters v. Staverley Coal
and Iron Co., 105 L. T. 119; 55 S. J. 579.
DaYies's Trust, In re, 41 L. J. Ch. 97, 99;
L. R. 13 Eq. 163, 166 : dictum of Wickens,
V.C., in, approved in Seabrook, In re; Gray
V. Baddeley, 80 L. J. Ch. 61; [1911] 1 Ch.
151 ; 103 L. T. 587.
Davis V. Hutchings, 76 L. J. Ch. 272;
[1907] 1 Ch. 356; 96 L. T. 293: general
principles laid down by Kekewich, J., in, dis-
approved in Allsop, In re; Whittaker v. Bam-
ford, 83 L. J. Ch. 42; [1914] 1 Ch. 1;
109 L. T. 641; 58 S. J. 9; 30 T. L. R. 18.
Davis & Sons v. Taff Yale Railway, 64 L. J.
Q.B. 488; [1895] A.C. 542; 72 L. T. 632;
44 W. R. 172 : followed in Att.-Gen. v. North-
Eastern Railway, 84 L. J. Ch. 657; [1915]
1 Ch. 905 ; 113 L. T. 25.
Davy V. Gray, 48 Ir. L. T. R. 32: followed
in Cleary v. London and North-Western Rail-
loay, [1915] 2 Ir. R. 210.
Dawson v. African Consolidated Land, &c.
Co., 67 L. J. Ch. 47 ; [1898] 1 Ch. 6 ; 77 L. T.
392; 46 W. R. 132; 4 Manson, 372 : applied
in Channel Collieries v. Dover, St. Margaret's,
and Martin Mill Light Railway, 84 L. J. Ch.
28; [1914] 2 Ch. 506; 111 L. T. 1051;
21 Manson, 328; 30 T. L. R. 647.
Dawson v. McGroggan, [1903] 1 Ir. R. 92 :
distinguished in Lyell v. Hothfield {Lord),
[1914] 3 K.B. 911 ; 30 T. L. R. 630.
Day, In re; Hammond, ex parte, 86 L. T.
238; 50 W. E. 448: considered in Beesley,
In re, 109 L. T. 910.
Day V. McLea, 55 L. J. Q.B. 293; 22 Q.B.
D. 610; 60 L. T. 947; 37 W. R. 483; 53 J. P.
532 : distinguished in Hirachand Punamchand
V. Temple, 80 L. J. K.B. 1155; [1911] 2 K.B.
330; 55 S. J. 519; 27 T. L. R. 430.
Dean v. Allen, 20 Beav. 1 : applied in
Lawley, In re, [1911] 2 Ch. 530; 105 L. T.
571; 56 S. J. 13.
Dean v. Rubian Art Pottery, 83 L. J. K.B.
799; [1914] 2 K.B. 213; [1914] W.C. & I. Rep.
147 ; 110 L. T. 594 ; 58 S. J. 302 ; 30 T. L. R.
283 : commented on in M' Gowan v. Merry d
Cunninghame , Lim., [1915] S. C. 34.
Dearberg v. Letchford, 72 L. T. 489: not
followed in Ntitt's Settlement, In re, 84 L. J.
Ch. 877; [1915] 2 Ch. 431; 59 S. J. 717.
Deards v. Edinburgh Assessor, [1911] S. C.
918 : distinguished in Maxwell v. Galashiels
Assessor, [1915] S. C. 765.
Debendra Nath Dutt v. Administrator-
General of Bengal, L. R. 35 Ind. App. 109:
discussed and distinguished in Hewson v.
Shelley, 82 L. J. Ch. 551; [1913] 2 Ch. 384;
109 L. T. 157 ; 57 S. J. 717 ; 29 T. L. R. 699.
Debenture Corporation v. Uttoxeter Brewery,
noted in Palmer's Company Precedents
(10th ed.), Part III., p. 737 : followed on one
point in Piccadilly Hotel, In re, [1911] 2 Ch.
534; 56 S. J. 52.
Debtor, In re, 91 L. T. 664 (affirmed sub
nom. Goldberg, In re, 21 T. L. R. 139) :
distinguished in Sunderland, In re; Leech
and Simpkinson, ex parte, 80 L. J. K.B. 825;
[1911] 2 K.B. 658; 18 Manson, 123; 55 S. J.
568 ; 27 T. L. R. 454.
Debtor (No. 305 of 1911), In re, 80 L. .T.
K.B. 1264; [1911] 2 K.B. 718; 105 L. T. 125;
55 S. J. 553 : explained in Debtor [No. 1,838 of
1911), In re, 81 L. J. K.B. 107 ; [1912] 1 K.B.
53 ; 105 L. T. 610 ; 19 Manson, 12 ; 56 S. J. 36 ;
28 T. L. R. 9.
De Francesco v. Barnum (No. 2) , 60 L. J.
Ch. 63 ; 45 Ch. D. 430 : followed in Fred
Wilkins d Brother, Lim. v. Weaver, 84 L. J.
Ch. 929 ; [1915] 2 Ch. 322.
De Gasquet James (Countess) v. Mecklen-
burg-Schwerin (Duke), 83 L. J. P. 40; [1914]
P. 53 ; 110 L. T. 121 ; 58 S. J. 341 ; 30 T. L. R.
329 : application of principle of, defined in
Perrin v. Perrin; Powell v. Powell, 83 L. J.
P. 69; [1914] P. 135; 30 T. L. R. 497.
De Hart v. Stevenson, 45 L. J. Q.B. 575 ;
1 Q.B. D. 313; 24 W. R. 367 : followed in
Janson v. Property Insurance Co., 19 Com.
Cas. 37 ; 30 T. L. R. 49.
De Hoghton v. De Hoghton, 65 L. J. Ch.
667 ; [1896] 2 Ch. 385 ; 74 L. T. 613 ; 44 W. R.
635 : followed in Greenwood v. Lutman,
[1915] 1 Ir. R. 266.
De Jager v. De Jager, 55 L. J. P.C. 22;
11 App. Cas. 411 : followed in De Jager v.
Foster, 80 L. J. P.C. 138; [1911] A.C. 450.
De Lassalle v. Guildford, 70 L. J. K.B
533; [1901] 2 K.B. 215; 84 L. T. 649
49 W. R. 467 : dictum of A. L. Smith, M.R.
in, disapproved by Lord Moulton in Heilbut
Symons d Co. v. Buckleton, 82 L. J. K.B. 245
[1913] A.C. 30; 107 L. T. 769; 20 Manson, 54
De la Warr (Earl) v. Miles, 50 L. J. Ch
754; 17 Ch. D. 535; 44 L. T. 487; 29 W. R
809 : distinguished in Lyell v. Hothfield (Lord),
[1914] 3 K.B. 911; 30 T. L. R. 630.
Denaby Main Colliery Co. v. Manchester,
Sheffield, and Lincolnshire Railway, 55 L. J.
Q.B. 181; 11 App. Cas. 97; 54 L. T. 1;
50 J. P. 340 ; 6 Ry. & Can. Traff. Cas. 133 :
considered in Independent Newspapers, Lim.
V. Great Northern Railway (Ireland), [1913]
2 Ir. R. 255.
De Nicols v. Saunders, 39 L. J. C.P. 297;
L. R. 5 C.P. 589; 22 L. T. 661; 18 W. R.
1106 : distinguished in Ashburton (Lord) v.
Nocton, 83 L. J. Ch. 831; [1914] 2 Ch. 211;
58 S. J. 635; 30 T. L. R. 565.
Explained, Distinguished, and Commented On.
2053
Denman v. Westminster Corporation,
75 L. J. Ch. 272; [1906] 1 Ch. 464; 94 L. T.
370; 54 W. E. 345; 70 J. P. 185; 4 L. G. E.
442 ; 22 T. L. E. 270 : statement of
Buckley, J., in, adopted and followed in
Davies v. London Corporation, 82 L. J. Ch.
286 ; [1913] 1 Ch. 415 ; 108 L. T. 546 ; 77 J. P.
294; 11 L. G. E. 595; 57 S. J. 341;
29 T. L. E. 315.
Derry v. Peek, 58 L. J. Ch. 864; 14 App.
Gas. 337 ; 61 L. T. 265 : discussed and ex-
plained mNoctonv. Ashburton (Lord), 83 L. J.
Ch. 784; 111 L. T. 641; 30 T. L. E. 602.
Deutsche National Bank v. Paul, 67 L. J.
Ch. 156; [1898] 1 Ch. 283; 78 L. T. 35;
46 \V. E. 243 : followed in Hughes v. Oxen-
ham, 82 L. J. Ch. 155; [1913] 1 Ch. 254;
108 L. T. 316.
Devon's Settled Estates, In re, 65 L. J. Ch.
810 ; [1896] 2 Ch. 562 ; 75 L. T. 178 ; 45 W. E.
25 : considered in Gordon and Adams' Con-
tract, In re, 82 L. J. Ch. 455; [1913] 1 Ch.
561; 108 L. T. 710; 57 S. J. 477.
Didisheim v. London and Westminster
Bank, 69 L. J. Ch. 443; [1900] 2 Ch. 15;
82 L. T. 738 ; 48 W. E. 501 : followed in
Pelegrin v. Coutts & Co., 84 L. J. Ch. 576;
[1915] 1 Ch. 696 ; 113 L. T. 140.
Director of Public Prosecutions {or Rex) v
Ball {No. 2), 80 L. J. K.B. 691; [1911] A.C.
47; 104 L. T. 48; 75 J. P. 180; 22 Cox C.C.
370; 27 T. L. E. 162: followed in Rex v.
Shellaker, 83 L. J. K.B. 413; [1914] 1 K.B.
414 ; 110 L. T. 351 ; 78 J. P. 159 ; 30 T. L. E.
194.
Dixon, In re ; Byram v. Tull, 42 Ch. D. 306 :
61 L. T. 718; 38 W. E. 91: followed in
Jeffery, In re; Nussey v. Jeffery, 83 L. J.
Ch. 251; [1914] 1 Ch. 375; 110 L. T. 11:
58 S. J. 120.
Dixon, In re; Penfold v. Dixon, 71 L. J.
Ch. 96; [1902] 1 Ch. 248; 85 L. T. 622;
50 W. E. 203: overruled in Avery, In re;
Pinsent v. Avery, 82 L. J. Ch. 434; [1913]
1 Ch. 208; 108 L. T. 1 ; 57 S. J. 112.
Devonport Corporation v. Tozer, 72 L. J.
Ch. 411; [1903] 1 Ch. 759; 88 L. T. 113;
52 W. E. 6; 67 J. P. 269; 1 L. G. E. 421 :
observations of Collins, M.E., and Eomer, L.J.,
in, followed in Att.-Gen. v. Dorin, 81 L. J.
Ch. 225; [1912] 1 Ch. 369; 106 L. T. 18 ;
76 J. P. 181; 10 L. G. E. 194; 56 S. J. 123;
28 T. L. E. 105.
Devonshire, The, 81 L. J. P. 94; [1912]
A.C. 634; 107 L. T. 179; 57 S. J. 10;
28 T. L. E. 551 : distinguished in The Umona,
83 L. J. P. 106 : [1914] P. 141 ; 111 L. T. 415 ;
12 Asp. M.C. 527 ; 30 T. L. E. 498.
Dewdney, Ex parte, 15 Ves. 479 : applied
in Fleetwood and District Electric Light, dc.
Syndicate, In re, 84 L. J. Ch. 374; [1915]
1 Ch. 486; 112 L. T. 1127; [1915] H. B. E.
70; 59 S. J. 383; 31 T. L. E. 221.
Dickinson v. Dickinson, 82 L. J. P. 121 ;
[1913] P. 198; 109 L. T. 408; 58 S. J. 32;
29 T. L. E. 765 : overruled in Napier v.
Napier, 84 L. J. P. 177; [1915] P. 184;
118 L. T. 764; 59 S. J. 560; 31 T. L. E. 472.
Dicks V. Dicks, 68 L. J. P. 118; [1899]
P. 275 ; 81 L. T. 462 : dissented from in De
Gasquet James (Countess) v. Mecklenhurg-
Schwerin (Duke), 83 L. J. P. 40; [1914] P. 53;
110 L. T. 121 ; 58 S. J. 341 ; 30 T. L. E. 329.
Dobson V. British Oil and Cake Mills,
106 L. T. 922; [1912] W.C. Eep. 207;
5 B.W.C.C. 405 : followed in Edge v. Gorton,
81 L. J. K.B. 1185; [1912] 3 K.B. 360;
107 L. T. 340.
Dobson V. CoUis, 25 L. J. Ex. 267 ; 1 H. &
N. 81; 4 W. E. 512 : followed in Hanau v.
Ehrlich, 81 L. J. K.B. 397; [1912] A.C. 39;
106 L. T. 1 ; 56 S. J. 186 ; 28 T. L. E. 113.
Dodson, In re, 77 L. J. Ch. 830: [1908]
2 Ch. 638; 98 L. T. 395 : discussed and applied
in Herbert v. Herbert, 81 L. J. Ch. 733;
[1912] 2 Ch. 268 : approved and followed in
Fauntleroy v. Beebe, 80 L. J. Ch. 654; [1911]
2 Ch. 257; 104 L. T. 704; 55 S. J. 497.
Dodson V. Sammell, 30 L. J. Ch. 799;
1 Dr. & Sm. 575; 8 Jur. (n.s.) 584; 9 W. E.
817 : applied in Lawley, In re, [1911] 2 Ch.
530; 105 L. T. 571; 56 S. J. 13.
Doecham Gloves, Lim., In re, 82 L. J. Ch.
165; [1913] 1 Ch. 226; 107 L. T. 817;
20 Manson, 79 : overruled in Schtceppes, Lim.,
In re, 83 L. J. Ch. 296; [1914] 1 Ch. 322;
110 L. T. 246; 21 Manson, 82; 58 S. J. 185;
30 T. L. E. 201.
Dictator, The, 61 L. J. P. 73; [1892] P. 304 :
67 L. T. 563; 7 Asp. M.C. 251 : followed in
The Dupleix, 81 L. J. P. 9; [1912] P. 8;
106 L. T. 347 ; 12 Asp. M.C. 122 ; 27 T. L. B.
577.
Doe d. Goodbehere v. Bevan, 3 M. & S. 353:
followed in Birkbcck Permanent Benefit Build-
ing Society v. Licensees' Insurance Corpora-
tion and Guarantee Fund. 82 L. J. Ch. 386;
[1913] 2 Ch. 34; [1913] W.C. & I. Eep. 566;
108 L. T. 664; 57 S. J. 559.
2054 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Doering v. Doering, 58 L. J. Ch. 553;
42 Ch. D. 203; 37 W. R. 796 : principle of,
when applicable, considered in Towndrow,
In re; Gratton v. Machen, 80 L. J. Ch. 378;
[1911] 1 Ch. 662; 104 L. T. 534 : considered in
Dacre, In re, [1915] 2 Ch. 480.
Doherty v. Allman, 3 App. Cas. 709: dis-
tinguished in Rose v. Hyman, 80 L. J. K.B.
1011; [1911] 2 K.B. 234; 104 L. T. 619;
55 S. J. 405 ; 27 T. L. E. 367.
Doherty v. Kennedy, [1912] 1 Ir. E. 349
(on app. sub nom. Dublin Distillery v.
Doherty, 83 L. J. P.C. 265: [1914] A.C. 823) :
considered in Cox v. Dublin City Distillery,
[1915] 1 Ir. E. 345.
Dolphin V. Robins, 29 L. J. P. 11 ; 7 H.L. C.
390 : followed in Mackenzie, In re, 80 L. J.
Ch. 443; [1911] 1 Ch. 578; 105 L. T. 154;
55 S. J. 406; 27 T. L. E. 337.
Donaldson v. Cowan, [1909] S. C. 1292: dis-
approved in Gibson v. Wishart, 83 L. J. P.C.
321; [1915] A.C. 18; 111 L. T. 466; 58 S. J.
592; 30 T. L. E. 540.
Donnelly's Estate, In re, [1913] 1 Ir. E.
177 : distinguished in ConnelVs Settlement,
In re, 84 L. J. Ch. 601; [1915] 1 Ch. 867.
Donovan v. Laing, 63 L. J. Q.B. 25 : [1893]
1 Q.B. 629: 68 L. T. 612; 41 W. E. 455;
57 J. P. 583 : distinguished in M'Cartan
V. Belfast Harbour Commissioners, [1911]
2 Ir. E. 143.
Doran v. Waterford Union Guardians, 37 Ir.
L. T. Eep. 158 : approved in Finlay v. Tulla-
more Union, [1914] 2 Ir. E. 233.
Dothie V. MacAndrew, 77 L. J. K.B. 388:
[1908] 1 K.B. 803: 98 L. T. 495 ; 24 T. L. E.
326 : followed in Skailes v. Blue Anchor Line,
80 L. J. K.B. 442; [1911] 1 K.B. 360;
103 L. T. 741 ; 55 S. J. 107 ; 27 T. L. E. 119.
Dowell V. Dew, 12 L. J. Ch. 158 : affirming
1 Y. & C. C.C. 345 : distinguished in Purchase
V. Lichfield Brewery Co., 84 L. J. K.B. 742;
[1915] 1 K.B. 184; 111 L. T. 1105.
Dowling V. Dowling, 68 L. J. P. 8; [1898]
P, 228 : considered and followed in Bourne v.
Bourne, 82 L. J. K.B. 117; [1913] P. 164;
108 L. T. 1039 ; 29 T. L. E. 657.
Dowse V. Gorton, 60 L. J. Ch. 745 ; [1891]
A.C. 190: 64 L. T. 809; 40 W. E. 17
considered in O.rley, In re, 83 L. J. Ch. 442
[1914] 1 Ch. 604 ; ilO L. T. 626; 58 S. J. 319
30 T. Ij. E. 327.
Doyle V. Blake, 2 Sch. & Lef. 231 : dicta in,
disapproved in Hewson v. Shelley, 82 L. J.
Ch. 551; [1913] 2 Ch. 384; 109 L. T. 167;
57 S. J. 717; 29 T. L. E. 699.
Doyle V. Craig, [1911] S. C. 493: distin-
guished in O'Connell v. Blacklock, [1912]
S. C. 640.
Drax, In re; Savile v. Drax, 72 L. J. Ch.
505 ; [1903] 1 Ch. 781 ; 88 L. T. 510 ; 51 W. E.
612 : followed in MacDermott's Estate, In re,
[1912] 1 Ir. E. 166.
Dresser v. Norwood, 34 L. J. C.P. 48;
17 C. B. (n.s.) 466 : distinguished in Taylor v.
Yorkshire Insurance Co., [1913] 2 Ir. E. 1.
Drew V. Barry, Ir. E. 8 Eq. 260: con-
sidered in Franks's Estate, In re, [1915]
1 Ir. E. 387.
Drucker, In re, 71 L. J. K.B. 686; [1902]
2 K.B. 237; 86 L. T. 785; 9 Manson, 237 :
approved in Watson, In re; Schipper, ex parte,
107 L. T. 96 : followed in Hooley, In re,
84 L. J. K.B. 1415.
Drylie v. Alloa Coal Co., [1913] S. C. 549;
[1913] W.C. & I. Eep. 213 : approved in
Brown v. Watson, 83 L. J. P.C. 307; [1915]
A.C. 1; [1914] W.C. & I. Eep. 228; 111 L. T.
347 ; 58 S. J. 533 ; 30 T. L. E. 501.
Dubber v. Trollope, Amb. 453: considered
in Davison's Settlement, In re, [1913] 2 Ch.
498.
Dublin Corporation v. M'Adam, 20 L. E.
Ir. 497 : followed in MuUingar Rural Council
V. Rowles, [1913] 2 Ir. E. 44; 6 Tax Cas. 85.
Dublin, Wicklow, and Wexford Railway v.
Slattery, 3 App. Cas. 1155 : 39 L. T. 365 : con-
sidered in Cutsforth v. Johnson, [1913] W.C.
& I. Eep. 131 ; 108 L. T. 138 : and distin-
guished in Macleod v. Edinburgh and District
Tramways Co., [1913] S. C. 624.
Du Bochet, In re ; Mansell v. Allen, 70 L. J.
Ch. 647; [1901] 2 Ch. 441? 84 L. T. 710;
49 W. E. 588 : disapproved in Pearce, In re;
Alliance Assurance Co. v. Francis, 83 L. J.
Ch. 266; [1914] 1 Ch. 254; 110 L. T. 168;
58 S. J. 197.
Duke V. Davis, 62 L. J. Q.B. 549; [1893J
2 Q.B. 260 : followed in Buckley £ Beach v.
National Electric Theatres, 82 L. J. K.B. 739;
[1913] 2 K.B. 277 ; 108 L. T. 871.
Dungannon (Lord) v. Smith, 12 CI. & F.
546 : distinguished in Fane, In re, 82 L. J.
Ch. 225; [1913] 1 Ch. 404; 108 L. T. 288;
57 S. J. 321; 29 T. L. E. 306.
Dunning v. Owen, 76 L. J. K.B. 796; [1907]
2 K.B. 237; 97 L. T. 241; 71 J. P. 383;
23 T. L. E. 494 : distinguished in Mellor v.
Lydiate. 84 L. J. K.B. 8: [1914] 3 K.B. 1141;
111 L. T. 988: 79 J. P. 68; 30 T. L. R. 704.
Explained, Distinguished, and Commented On.
2055
Dyke v. Stephens, 55 L. J. Ch. 41; 30 Ch. Eccles v. Mills, 67 L. J. P.C. 25: [1898i
D. 189; 53 L. T. 561 : reasoning of Pearson, j A.C. 360; 78 L. T. 206; 46 W. E. 398':
J., in, applied in Pink v. Sharwood, 82 L. J. j applied in Hughes, hi re; Ellis v. Hughes,
Ch. 542; [1913] 2 Ch. 286; 108 L. T. 1017; . [1913] 2 Ch. 491; 109 L. T. 509.
57 S. J. 663. I
Dyson v. Att.-Gen., 80 L. J. K.B. 5.31;
[1911] 1 K.B. 410; 103 L. T. 707; 55 S. J.
168; 27 T. L. E. 143 : distinguished in Hall,
In re; Hall v. Knight, 83 L. J. P. 1; [1914]
P. 1; 109 L. T. 587; 58 S. J. 30; 30 T. L. E.
405.
E.
E. V. E., 23 T. L. E. 364: distinguished in
Walker v. Walker, 107 L. T. 655; 57 S. J.
175.
E. W. A., In re, 70 L. J. K.B. 810: [19011
2 K.B. 642; 85 L. T. 31: 49 W. E. 642';
8 Manson, 250 : distinguished in Debtor
{No. 14 of 1913), In re, 82 L. J. K.B. 907;
[1913] 3 K.B. 11; 20 Manson, 119; 57 S. J.
579.
Earle v. Bellingham (No. 2), 24 Beav. 448:
explained in Walford, In re. 81 L. J. Ch. 128;
[1912] 1 Ch. 219 ; 105 L. T. 739.
Eastbourne Corporation v. Bradford, 65 L. J.
Q.B. 571; [1896] 2 Q.B. 205; 74 L. T. 762;
45 W. E. 31 ; 60 J. P. 501 : applied in Hull
Corporation v. 'North-Eastern Railway, 84 L. J.
Ch. 329; [1915] 1 Ch. 456; 112 L. T. 584;
79 J. P. 221 ; 13 L. G. K. 587 ; 59 S. J. 318.
East London Joint Committee v. Greenwich
Union, 5 L. G. E. 922: followed in East
London Railway v. Greenwich Assessment
Committee, 107 L. T. 126; 76 J. P. 318;
10 L. G. E. 562.
East London Railway Joint Committee v.
Greenwich Assessment Committee, 82 L. J.
K.B. 297: [1913] 1 K.B. 612; 107 L. T. 105;
77 J. P. 153; 11 L. G. E. 265: 29 T. L. E.
171 : explained and applied in Great Western
and Metropolitan Railways v. Hammersmith
Assessment Committee, 110 L. T. 96; 78 J. P.
59 : 12 L. G. E. 46.
Eaves v. Blaenclydach Colliery Co., 78 L.J.
K.B. 809; [1909] 2 K.B. 73; 100 L. T. 751 :
applied in Wall, Lim. v. Steel, 84 L. J. K.B.
1599; [1915] W.C. & I. Eep. 117; 112 L. T.
846.
Ebbetts V. Conquest, 64 L. J. Ch. 702;
[1895] 2 Ch. .377 : 73 L. T. 69 ; 44 W. E. 56 :
dictum of Lindley, L.J., in, followed in Clare
V. Dobson, 80 L. J. K.B. 158; [1911] 1 K.B.
35; 103 L. T. 506; 27 T. L. E. 22.
Eberle's Hotels Co. v. Jonas, 56 L. J. Q.B.
278; 18 Q.B. D. 4.59; 35 W. E. 467 : prin-
ciples stated in, applied in Thorn ct Son,
Lim., In re, 84 L. J. Ch. 161; [1914] 2 Ch.
438; 112 L. T. 30; [1915] H. B. E. 19;
58 S. J. 755.
Eddystone Marine Insurance Co., In re,
61 L. J. Ch. 362; [1892] 2 Ch. 423; 66 L. T.
370 ; 40 W. E. 441 : applied in Law Guarantee
Trust and Accident Society, In re (No. 2),
84 L. J. Ch. 1 ; [1914] 2 Ch. 617 ; 111 L. T.
817; 58 S. J. 704; 30 T. L. E. 616.
Eden v. Ridsdale Railway Lamp, &c. Co.,
58 L. J. Q.B. 579; 23 Q.B. D. 368; 61 L. T.
444 : applied in London and South-W^estern
Canal, In re, 80 L. J. Ch. 234; [1911] 1 Ch.
346; 104 L. T. 95; 18 Manson, 171.
Edinburgh and District Aerated Water
Manufacturers' Defence Association v. Jenkin-
son, 5 Fraser, 1159: distinguished in British
Association of Glass Bottle Manufacturers v.
Nettlefold, 27 T. L. E. 527.
Edinburgh Life Assurance Co. v. Lord
Advocate, 79 L. J. P.C. 41; [1910] A.C. 143;
101 L. T. 826; 54 S. J. 133; 26 T. L. E. 146 :
discussed in Sugden v. Leeds Corporation,
83 L. J. K.B. 840; [1914] A.C. 483; 108 L. T.
578; 77 J. P. 225; 11 L. G. E. 662; 6 Tax
Cas. 211; 57 S. J. 425; 29 T. L. E. 402.
Edinl)urgh Parish Council y. Edinburgh
Assessor, [1910] S. C. 823: overruled in
Glasgow Parish Council v. Glasgow Assessor,
[1912] S. C. 818.
Edmonds v. Foster, 45 L. J. M.C. 41;
33 L. T. 690 : followed in Park v. Laicton.
80 L. J. K.B. 396; [1911] 1 K.B. 588;
104 L. T. 184; 75 J. P. 163; 18 Manson, 151;
27 T. L. E. 192.
Edmundson v. Render, 71 L. J. Ch. 585;
[1905] 2 Ch. 320; 93 L. T. 124; 54 W. E.
632 : distinguished in Woodbridge v. Bellamy,
80 L. J. Ch. 265; [1911] 1 Ch. 326; 103 L. T.
852; 55 S. J. 204.
Edwards v. Edwards, 45 L. J. Ch. 391:
2 Ch. D. 291; 34 L. T. 472; 24 W. E. 713 :
applied in Monolithic Building Co., In re;
Tacon v. The Company, 84 L. J. Ch. 441;
[1915] 1 Ch. 643; 112 L. T. 619; 59 S. J. 332.
Edwards v. Hope, 54 L. J. Q.B. 379.
14 Q.B. D. 922; 53 L. T. 69 : considered in
Reid V. Cupper, 84 L. J. K.B. 573: [1915]
2 K.B. 147; 112 L. T. 573; 59 S. J. 144;
31 T. L. E. 103.
Edwards v. Wickwar, 35 L. J. Ch. 309:
L. E. 1 Eq. 403 : not followed in Horn v.
Beard, 81 L. J. K.B. 935 ; [19121 3 K.B. 181 ;
107 L. T. 87.
2056 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Egerton v. Brownlow (Earl), 4 H.L. C. 1:
distinguished in Caithness (Earl) v. Sinclair,
[1912] S. C. 79.
Eichbaum v. City of Chicago Grain Eleva-
tors, Lim., 61 L. J. Ch. 28; [18911 3 Ch. 459;
65 L. T. 704 : followed in Row'ell v. John
Rowell (£ Son, Ltm., 81 L. J. Ch. 759; [1912]
2 Ch. 609 ; 107 L. T. 374.
Eke V. Hart Dyke, 80 L. J. K.B. 90
[1910] 2 K.B. 677 ; 103 L. T. 174 ; 26 T. L. E
613 : applied in Martin v. Manchester Cor
poration, 106 L. T. 741; 76 J. P. 251
28 T. L. K. 344.
Ellenborough, In re; Law v. Burns, 72 L. J.
Ch. 218; [1903] 1 Ch. 697; 87 L. T. 714;
51 W. E. 315 : applied in Mudge, In re,
83 L. J. Ch. 243 ; [1914] 1 Ch. 115 ; 109 L. T.
781; 58 S. J. 117.
Ellis V. Ellis, 74 L. J. Ch. 296 ; [1905] 1 Ch.
613 ; 92 L. T. 727 ; 53 W. E. 617 : overruled in
Hewson v. Shelley, 83 L. J. Ch. 607 ; [1914]
2 Ch. 13: 110 L. T. 785; 58 S. J. 397;
30 T. L. E. 4a2.
Ellis V. Kerr, 79 L. J. Ch. 291 ; FIQIOI 1 Ch.
529; 102 L. T. 417; 54 S. J. 30"7 : followed
in Napier v. Willia7ns, 80 L. J. Ch. 298;
[1911] 1 Ch. 361; 104 L. T. 380; 55 S. J. 235.
Ellis V. Maxwell, 3 Beav. 587 : discussed
and not followed in Cattell, In re, 83 L. J.
Ch. 322; [1914] 1 Ch. 177; 110 L. T. 137;
58 S. J. 67.
Ellis V. Pond, 67 L. J. Q.B. 345; [1898]
1 Q.B. 426; 78 L. T. 125 : distinguished in
Finlay, In re; Wilson v. Finlay, 82 L. J.
Ch. 295; [1913] 1 Ch. 565; 108 L. T. 699;
57 S. J. 444 ; 29 T. L. E. 436.
Ellis's Settlement, In re, 78 L. J. Ch. 375 ;
[1909] 1 Ch. 618; 100 L. T. 511 : followed in
Leigh-White v. Ruttledge, [1914] 1 Ir. E. 135.
Elmore's Will, In re, 9 W. E. 66 : over-
ruled in Wareham, In re, 81 L. J. Ch. 578;
[1912] 2 Ch. 312; 107 L. T. 80; 56 S. J. 613.
Elphinstone (Lord) v. Monkland Iron and
Coal Co., 11 App. Cas. 332 : opinion of Lord
Fitzgerald in, commented on and doubted in
Dingwall v. Burnett, [1912] S. C. 1097 :
dictum of Lord Watson in, applied in Dunlop
Pneumatic Tyre Co. v. New Garage and
Motor Co., 83 L. J. K.B. 1574; [1915] A.C.
79 ; 111 L. T. 862 ; 30 T. L. E. 625.
Ely, In re, 82 L. T. 501: distinguished in
Goldburg, In re; Page, ex parte, 81 L. J.
K.B. 663; [1912] 1 K.B. 606; 106 L. T. 431.
Ely, In re; Tottenham v. Ely, 65 L. T.
452 : not followed in Halston, In re; Ewen
V. Halston, 81 L. J. Ch. 265; [1912] 1 Ch.
435; 106 L". T. 182; 56 S. J. 311.
Eley V. Positive Government Security Life
Assurance Co., 45 L. J. Ex. 451; 1 Ex. D. 88;
34 L. T. 190; 24 W. E. 338 : distinguished in
Hickman v. Kent (or Romney Marsh) Sheep
Breeders' Association, 84 L. J. Ch. 688;
[1915] 1 Ch. 881; 113 L. T. 159; 59 S. J. 478.
Emanuel v. Constable, 5 L. J. (o.s.) Ch.
191 ; 3 Euss. 436 : applied in Limond, In re,
84 L. J. Ch. 833; [1915] 2 Ch. 240; 113 L. T.
815 ; 59 S. J. 613.
Emmet v. Emmet, 49 L. J. Ch. 295 ; 13 Ch.
D. 484 : followed in Faux, In re, 84 L. J. Ch.
873; 113 L. T. 81; 59 S. J. 457; 31 T. L. E.
289.
Emmett, In re, 95 L. T. 755 : questioned in
Beavan, In re, 81 L. J. Ch. 113; [1912]
1 Ch. 196 ; 105 L. T. 784.
Englehart v. Farrant, 66 L. J. Q.B. 122;
[1897] 1 Q.B. 240; 75 L. T. 617; 45 W. E.
179 : considered and applied in Ricketts v.
Tilling, 84 L. J. K.B. 342; [1915] 1 K.B. 644;
112 L. T. 137; 31 T. L. E. 17.
Erie County Gas and Natural Fuel Co. v.
Carroll, 80 L. J. P.C. 59: [1911] A.C. 105;
103 L. T. 678 : approved in British Westing-
house Co. V. Underground Railways of
London, 81 L. J. K.B. 1132; [1912] A.C.
673; 107 L. T. 325; 56 S. J. 734.
Errington v. Rorke, 6 Ir. C. L. E. 279: dis-
cussed and distinguished in Hewson v. Shelley,
82 L. J. Ch. 551 ; [1913] 2 Ch. 384; 109 L. T.
157; 57 S. J. 717; 29 T. L. E. 699.
Erskine, Oxenford & Co. v. Sachs, 70 L. J.
K.B. 978; [1901] 2 K.B. 504; 85 L. T. 385 :
followed in Finlay, In re; Wilson v. Finlay,
82 L. J. Ch. 295 ; [1913] 1 Ch. 565; 108 L. T.
699 ; 57 S. J. 444 ; 29 T. L. E. 436.
Escalera Silver Lead Mining Co., In re,
25 T. L. E. 87 : distinguished in Harris Calcu-
lating Machine Co., In re, 83 L. J. Ch. 545;
[1914] 1 Ch. 920; 110 L. T. 997 ; 58 S. J. 455.
Esposito v. Bowden, 27 L. J. Q.B. 17;
7 E. & B. 763 : considered in Karberg d Co.
V. Blythe, Green, Jourdain d Co., 84 L. J.
K.B. 1673; [1915] 2 K.B. 379; 113 L. T. 185;
31 T. L. E. 351.
Espuela Land and Cattle Co., In re, 78 L. 1.
Ch. 729; [1909] 2 Ch. 187; 101 L. T. 13;
16 Manson, 251 : discussed and distinguished
in National Telephone Co., In re, 83 L. J. 552 ;
[1914] 1 Ch. 755 ; 109 L. T. 389 ; 58 S. J. 12 ;
29 T. L. E. 682.
Etches v. Etches, 3 Drew. 441; 4 W. E.
307 : applied in Seaton, In re; Ellis v. Seaton,
83 L. J. Ch. 124; [1913] 2 Ch. 614.
Europa, The 77 L. J. P. 26 ; [19081 P. 84 ;
98 L. T. 246; 11 Asp. M.C. 19; 24 T. L. E.
151 : followed and approved in Kish v. Taylor,
81 L. J. K.B. 1027: [1912] A.C. 604;
106 L. T. 900; 17 Com. Cas. 355; 56 S. J.
518; 28 T. L. E. 425.
Explained, Distinguished, and Commented On.
2057
Evans v. Evans, 61 L. J. Ch. 456 [1892J
2 Ch. 173 ; 67 L. T. 152 ; 40 W. R. 465 :
dictum of Lindley, L.J., in, considered in
Daviso7i's Settlement, In re, [1913] 2 Ch. 498.
Evans v. Levy, 79 L. J. Ch. 383; [1910]
1 Ch. 452 ; 102 L. T. 128 : in effect overruled
as regards costs in West v. Gvnjnne, 80 L. J.
Ch. 578; [1911] 2 Ch. 1 ; 104 L. T. 759;
55 S. J. 519; 27 T. L. R. 444.
Evans v. Rival Granite Quarries, 79 L. J.
K.B. 970; [1910] 2 K.B. 979; 54 S. J. 580;
26 T. L. R. 509 : applied in Sinnott v.
Bowden, 81 L. J. Ch. 832; [1912] 2 Ch. 414;
107 L. T. 609; [1913] W.C. & t. Rpp. 464;
28 T. L. R. 594.
Evershed v. London and North-Western
Railway, 48 L. J. Q.B. 22; 3 App. Cas. 1029;
39 L. T. 306; 26 W. R. 863: principle of
applied in Att.-Gen. v. Long Eaton Urban
Council, 83 L. J. Ch. 774; [1914] 2 Ch. 251;
30 T. L. R. 537.
Everson, In re, 74 L. J. K.B. 38; [1904J
2 K.B. 619; 91 L. T. 81; 52 W. R. 656:
distinguished in Arnold, hi re ; Hext, Ex parte,
84 L. J. K.B. 110 ; [1914] 3 K.B. 1078 ; [1915]
H. B. R. 11; 21 Manson, 319; 59 S. J. 9;
30 T. L. R. 691.
Everth v. Smith, 2 M. & S. 278: followed in
Scottish Shire Line v. London and Provincial
Marine and General Insurance Co., 81 L. J.
K.B. 1066; [1912] 3 K.B. 51; 107 L. T. 46;
17 Com. Cas. 240; 56 S. J. 551.
Evroy (or Esron) v. Nicholas, 2 Eq. C. Abr.
488; 1 De G. & Sm. 118n. : followed in
Stocks V. Wilson, 82 L. J. K.B. 598; [1913]
2 K.B. 235; 108 L. T. 834: 20 Manson, 129;
29 T. L. R. 352.
Exchange Telegraph v. Gregory, 65 L. J.
Q.B. 262; [1890] 1 Q.B. 147; 74 L. T. 83;
60 J. P. 52 : point in, followed in Goldsoll v.
Goldman, 84 L. J. Ch. 63; [1914] 2 Ch. 603;
112 L. T. 21; 59 S. J. 43.
Eykyn's Trusts, In re, 6 Ch. D. 115;
lowed in Condrin, In re, [1914] 1 Ir. R. I
fol-
Eyre v. Houghton Main Colliery Co., 79 L. J.
K.B. 698; [1910] 1 K.B. 695; 102 L. T. 885;
64 S. J. 304; 26 T. L. R. 302 : discussed in
Law V. Baird, [1914] S. C. 423; [1914] W.C.
& I. Rep. 140.
Eyton & Co., In re, 57 L. J. Ch. 127;
36 Ch. D. 299 ; 57 L. T. 899 : applied in
Rubber and Produce Investment Trust, In re,
84 L. J. Ch. 534; [1915] 1 Ch. 382: 112 Tj. T.
1129: [1915] H. B. R. 120; 31 T. I.. R. 253.
F
Faithfull, In re, 57 L. T. 14: distinguisheJ
in Harris, In re; Davis v. Harris, 83 L J
Ch. 841 ; [1914] 2 Ch. 395 ; 58 S. J. 653.
Falkland Islands Co. v. Reg., 1 Moo. P.C.
(n.s.) 299 : approved in Arnold v. King-
Emperor, 83 L. J. P.C. 299; [1914] A.C. 644;
L. R. 41 Ind. App. 149; 111 L. T. 324;
24 Cox C.C. 297 ; 30 T. L. R. 462.
Farncombe's Trusts, 47 L. J. Ch. 328;
9 Ch. D. 652 : applied in Witty. In re, [1913]
2 Ch. 666 ; 109 L. T. 590.
Fauntleroy v. Beebe, 80 L. J. Ch. 654;
[1911] 2 Ch. 257; 104 L. T. 704; 55 S. J. 497 :
discussed and applied in Herbert v. Herbert,
81 L. J. Ch. 733; [1912] 2 Ch. 268.
Favucett, In the goods of, 58 L. J. P. 87;
14 P. D. 152; 61 L. T. 303: followed in
Shorter v. Shorter, 80 L. J. P. 120; [1911]
P. 184; 27 T. L. R. 522.
Feldmann, In re, 97 L. T. 548; 71 J. P.
269; 5 L. G. R. 653; 23 T. L. R. 432:
discussed in Stock v. Central Midwives Board,
84 L. J. K.B. 1835; [1915] 3 K.B. 756;
113 L. T. 428; 79 J. P. 397; 31 T. L. R. 436.
Felstead v. Director of Public Prosecutions
or Regem, 83 L. J. K.B. 1132; [1914] A.C.
534; 111 L. T. 218; 78 J. P. 313; 24 Cox C.C.
243; 58 S. J. 534; 30 T. L. R. 469 : applied
in Rex v. Taylor, 84 L. J. K.B. 1671;
[1915] 2 K.B. 709; 113 L. T. 513; 79 J. P.
439; 59 S. J. 530; 31 T. L. R. 449; and
followed in Houghton, In re, 84 L. J. Ch. 726;
[1915] 2 Ch. 173 ; 113 L. T. 422 ; 59 S. J. 562 ;
31 T. L. R. 427.
Fenton v. Emblers, 3 Burr. 1278: observa-
tions in, disapproved in Hanau V. Ehrlich,
81 L. J. K.B. 397 ; [1912] A.C. 39; 106 L. T.
1; 56 S. J. 186; 28 T. L. R. 113.
Fenton v. Nevin, 31 L. R. Ir. 478: distin-
guished in Howell, In re; Buckingham, In re;
Liggins v. Buckingham, 84 L. J. Ch. 209;
[1915] 1 Ch. 241 ; 112 L. T. 188.
Fenton v. Thorley, 72 L. J. K.B. 787;
[1903] A.C. 443; 89 Tj. T. 314; 52 W. R. 81 :
dictum of Lord Macnaghten in, explained in
Trim Joint District School Board v. Kelly,
83 L. J. P.C. 220; [1914] A.C. 667; 68 8. J.
493; 30 T. L. R. 452.
Fielding, Ex parte, 25 J. P. 759: followed
by Avory, J., in Healey v. Wright, 81 Tj. J.
K.B. 961; [1912] 3 K.B. 249; 76 J. P. 367;
28 T. L. R. 439.
66
"2058 Cases Followed, Not Followed, Appko\kd, Overruled, Questioned,
Fielding v. Turner, 72 L. J. K.B. 542;
[1903] 1 K.B. 867; 89 L. T. 273; 51 W. E.
543 ; 67 J. P. 252 : applied and followed in
Donaghy v. Walsh, [1914] 2 Ir. E. 261.
Figg V. Moore, 63 L. J. Q.B. 709; [1894J
2 Q.B. 690; 71 L. T. 232; 1 Hansen, 404:
applied in Godding, In re, 83 L. J. K.B. 1222;
£1914] 2 K.B. 70 ; 110 L. T. 207 ; 58 S. J. 221.
Finburgh v. Moss' Empires, Lira. [1908]
S C. 928 : distinguished in Gorman v. Moss'
Empires, Lim., [1913] S. C. 1 : and in Aiken
V. Caledonian Railway, [1913] S. C. 66.
Fine Cotton Spinners and Doublers Associa-
tion V. Harwood, Cash & Co., 76 L. J. Ch.
670 ; [1907] 2 Ch. 184 ; 97 L. T. 45 ; 23 T. L. E.
537 : followed in Kingston, Miller d Co. v.
Kingston d Co., 81 L. J. Ch. 417; [1912]
1 Ch. 575; 106 L. T. 586; 29 E. P. C. 289;
56 S. J. 310; 28 T. L. E. 246.
Finlay v. Chirney, 57 L. J. Q.B. 247;
20 Q.B. D. 494; 58 L. T. 664; 52 J. P. 324 :
dicta in, not followed in Quirk v. Thomas.
84 L. J. K.B. 953; [1915] 1 K.B. 798;
59 S. J. 350; 31 T. L. E. 237.
Finlay v. Liverpool and Great Western
Steamship Co., 23 L. T. 251: dictum of
Martin, B., in, considered in Sanday v.
British and Foreign Marine Insurance Co.,
84 L. J. K.B. 1625; [1915] 2 K.B. 781;
59 S. J. 456; 31 T. L. E. 374.
Fitzgerald, In re; Surman v. Fitzgerald,
73 L. J. Ch. 436; [1904] 1 Ch. 573; 90 L. T.
266; 52 W. E. 432; 20 T. L. E. 332 : applied
in Hoyles, In re; Row v. Jagg, 80 L. J. Ch.
274 ; [1911] 1 Ch. 179 ; 103 L. T. 817 ; 55 S. J.
169; 27 T. L. E. 131.
Fitzroy v. Cave, 74 L. J. K.B. 829 ; [1905]
2 K.B. 364; 93 L. T. 499; 54 W. E. 17;
21 T. L. E. 612 : followed in Defries v. Milne,
82 L. J. Ch. 1; [1913] 1 Ch. 98; 107 L. T.
593; 57 S. J. 27.
Flatau, In re; Scotch Whiskey Distillers,
ex parte, 22 Q.B. D. 83; 37 \A\ E. 42: applied
in Howell, In re, 84 L. J. K.B. 1399.
Fleeming v. Howden, 6 Macq. (H.L.) 113,
121 : dictum of Lord Westbury in, explained
in Bank of Scotland v. Macleod, 83 L. J. P.C
250; [1914] A.C. 311; 110 L. T. 946.
Fleetwood, In re; Sidgreaves v. Brewer,
49 L. J. Ch. 514; 15 Ch. D. 594; 29 W. E.
45 : doubted in Le Page v. Gardom, 84 L. J.
Ch. 749; 113 L. T. 475; 59 S. J. 599.
Flood V. Irish Provident Assurance Co.,
46 Ir. L. T. 214; [1912] 2 Ch. 597 n. : distin-
guished in Sinclair v. Brougham, 83 L. J. Ch.
465; [1914] A.C. 398; 111 L. T. 1 ; 58 S. J.
302; 30 T. L. E. 315.
Foley V. Burnell, 1 Bro. C.C. 274; 4 Bro.
P.C. 34 : considered in Stcan, In re, 84 L. J.
Ch. 590; [1915] 1 Ch. 829; 113 L. T. 42:
31 T. L. E. 266.
Finlay v. Mexican Investment Corporation,
66 L. J. Q.B. 151; [1897] 1 Q.B. 517;
76 L. T. 257 : applied in Laio Guarantee
Trust and Accident Society, In re (No. 2),
84 L. J. Ch. 1; [19141 2 Ch. 617; 111 L. T.
817: 58 R. J. 704: 30 T. L. E. 616.
Firebrace v. Firebrace, 47 L. J. P. 41;
4 P. D. 36 ; 39 L. T. 94 ; 26 W. E. 617 :
approved and followed in De Gasquet James
(Countess) v. Mecklenburg-Schwerin (Duke),
83 L. J. P. 40; [1914] P. 53; 110 L. T. 121;
53 S. J. 341 ; 30 T. L. E. 329.
Firth V. McPhail, 74 L. J. K.B. 458; [1905]
2 K.B. 300; 92 L. T. 567; 69 J. P. 203;
3 L. G. E. 478; 21 T. L. E. 403 : considered
in Bothamley v. Jolly, 84 L. J. K.B. 2223;
[1915] 3 K.B. 425; 31 T. L. E. 626.
Fisher v. Begrez, 2 Cr. & M. 240: considered
ill Republic of Bolivia Exploration Syndicate,
In re, 83 Ij. J. Ch. 226; [1914] 1 Ch. 139;
109 L. T. 741 ; 110 L. T. 141 ; 58 S. J. 173 ;
30 T. L. R. 78.
Fitzgerald v. Leonard, 32 L. E. Ir. 675:
not followed in Cointat v. Myham, 82 L. J.
K.B. 551; [1913] 2 K.B. 220; 108 L. T. 556;
77 J. P. 217; 11 L. G. E. 770; 29 T. L. E. 387.
Forbes v. Samuel, 82 L. J. K.B. 1135;
[1913] 3 K.B. 706 ; 109 L. T. 599 ; 29 T. L. E.
544 : followed in Bird v. Samuel, 30 T. L. E.
323.
Formby v. Barker, 72 L. J. Ch. 716; [19031
2 Ch. 539; 89 L. T. 249; 51 W. E. 646:
applied in London County Council v. Allen,
83 L. .J. K.B. 1695 ; [1914] 3 K.B. 642.
Forrest v. Manchester &c. Railway, 30 Beav.
40; 4 L. T. 606 : disapproved in Dundee
Harbour Trustees v. Nicol, 84 L. J. P.C. 74;
[1915] A.C. 550: 112 L. T. 697; 31 T. L. R.
118.
Forsdike v. Stone, 37 L. J. C.P. 301 ; L. E.
3 C.P. 607 ; 18 L. T. 722 : followed in Barker
V. Lewis d Peat, 82 L. J. K.B. 843; [1913]
3 K.B. 34; 108 L. T. 941; 57 S. J. 577;
29 T. L. E. 565.
Forte V. Dewar, 7 F. (J.) 82: overruled in
Di Carlo v. M'Intyre, [1914] S. C. (J.) 60.
Foss v. Best, 75 L. J. K.B. 575; [1906]
2 K.B. 105; 95 L. T. 127; 70 J. P. 383;
22 T. L. E. 542 : not followed in Wills v.
McSherry. 82 L. J. K.B. 71; [1913] 1 K.B.
20; 107 L. T. 848; 77 J. P. 65; 23 Cox C.C.
254; 29 T. L. E. 48.
Explained, Distinguished, and Commkxtkd On.
2059
Foster v. Foster, 45 L. J. Ch. 3U1 ; 1 Ch. D.
588 : applied in Hopkinson v. Richardson,
b-2 L. J. Ch. 211; [1913] 1 Ch. 284; 108 L. T.
501 ; 57 S. J. 265.
Foster v. Great Western Railway, 73 L. J.
K.B. 811; [1904] 2 K.B. 306; 90 L. T. 779;
52 W. R. 685 ; 20 T. L. R. 472 : distinguished
in Gunijon v. South-Eastern and Chatham
Railway Companies Managiiig Committee,
84 L. J. K.B. 1212; [1915] 2 K.B. 370;
31 T. L. R. 344.
Foster v. Mackinnon, 38 L. J. C.P. 310;
L. R. 4 C. P. 704; 20 L. T. 887; 17 W. R.
1105 : considered in Carlisle and Cumberland
Banking Co. v. Bragg, 80 L. J. K.B. 472;
[1911] 1 K.B. 489; 104 L. T. 121.
Fowkes V. Pascoe, 44 L. J. Ch. 367; L. R.
10 Ch. 343; 32 L. T. 545: considered in
Shields, In re ; Corbould-Ellis v. Dales, 81 L. J.
Ch. 370; [1912] 1 Ch. 591; 106 L. T. 748.
Fox V. Fox, L. R. 19 Eq. 286: distin-
guished in Hume, In re; Public Trustee v.
Mabey, 81 L. J. Ch. 382; [1912] 1 Ch. 693;
106 L. T. 335; 56 S. J. 414.
Frames v. Bultfontein Mining Co., 60 L. J.
Ch. 99; [1891] 1 Ch. 140; 64 L. T. 12;
39 W. R. 134 ; 2 Meg. 374 : explained in
Spanish Prospecting Co., In re, 80 L. J. Ch.
210; [1911] 1 Ch. 92; 103 L. T. 609; 18 Man-
son, 191; 55 S. J. 63; 27 T. L. R. 76.
France v. Clark, 53 L. J. Ch. 585 ; 26 Ch.
D. 257 ; 50 L. T. 1 : distinguished in Fry v.
Smellie, 81 L. J. K.B. 1003; [1912] 3 K.B.
282; 106 L. T. 404.
Fraserv. Murdoch, 6 App. Cas. 855 ; 45L. T.
417 ; 30 W. R. 162 : applied in Matthews v.
Ruggles-Brise, 80 L. J. Ch. 42; [1911] 1 Ch.
194; 103 L. T. 491.
Fraser v. Riddell & Co., [1914] W.C. &
I. Rep. 125; 1913, S. L. T. 377 : followed in
Williams v. Llandudno Coaching and Carriage
Co., 84 L. J. K.B. 655; [1915] 2 K.B. 101;
[1915] W.C. & I. Rep. 91; 112 L. T. 848;
69 S. J. 286 ; 31 T. L. R. 186.
Fraser (or Robinson) v. Murdoch, 6 App
Cas. 855; 45 L. T. 417; 30 W. R. 162 : dis
tinguished in Craven. In re ; Watson v. Craven,
83 L. J. Ch. 403; [1914] 1 Ch. 358; 109 L. T.
846; 58 S. J. 138.
Frederick v. Bognor Water Co., 78 L. J.
Ch. 40; [1909] 1 Ch. 149; 99 L. T. 728;
72 J. P. 501 ; 7 L. G. R. 45 ; 25 T. L. R. 31 :
distinguished in Oddenino v. Metropolitan
Water Board, 84 L. J. Ch. 102; [1914] 2 Ch.
734 ; 112 L. T. 115 ; 79 J. P. 89 ; 13 L. G. R.
33; 59 S. J. 129; 31 T. L. R. 23.
Freeman v. Pope, 39 L. J. Ch. 689; L. R.
5 Ch. 538; 21 L. T. 816; 18 W. R. 906:
followed in Carruthers v. Peake, 55 S. J. 291.
Freer v. Murray, 63 L. J. M.C. 242; [1894]
A.C. 576; 71 L. T. 444; 58 J. P. 508 : dis-
cussed in Wernham v. Regem, 83 L. J. K.B.
395; [1914] 1 K.B. 468; 110 L. T. Ill;
78 J. P. 74.
Frend v. Dennett, 27 L. J. C.P. 314 ; 4 C. B.
(N.s.) 576; 5 L. T. 63 : followed in Hoare v.
Kingsbury Urban Council, 81 L. J. Ch. 666;
[1912] 2 Ch. 452 ; 107 L. T. 492 ; 76 J. P. 401 ;
10 L. G. R. 829; 56 S. J. 704.
Freston, In re, 52 L. J. Q.B. 545; 11 Q.B.
D. 545 ; 49 L. T. 290 : considered in Seldon v.
Wilde, 80 L. J. K.B. 282; [1911] 1 K.B. 701;
104 L. T. 194.
Friends, The, Edw. Adm. 346: considered
in The lolo, 59 S. J. 545; 31 T. L. R. 474.
Frith V. " Louisianian " (Owners), 81 L. J.
K.B. 701; [1912] 2 K.B. 155; [1912] W.C.
Rep. 285 ; 106 L. T. 667 ; 28 T. L. R. 331 :
followed in Nash v. " Rangatira " (Owners),
83 L. J. K.B. 1496; [1914] 3 K.B. 978;
111 L. T. 704; 58 S. J. 705 : distinguished in
Williams v. Llandudno CoacJiing and Carriage
Co., 84 L. J. K.B. 655; [1915] 2 K.B. 101;
[1915] W.C. & I. Rep. 91; 112 L. T. 848;
59 S. J. 286 ; 31 T. L. R. 186.
Frost, In re, 59 L. J. Ch. 118: 43 Ch. D.
246 ; 62 L. T. 25 ; 38 W. R. 264 : followed in
Park's Settle^nent, In re; Foran v. Bruce,
83 L. J. Ch. 528; [1914] 1 Ch. 595; 110 L. T.
813; 58 S. J. 362: applied in Bullock's Will
Trusts, In re, 84 L. J. Ch. 463; [1915]
1 Ch. 493 ; 112 L. T. 1119 ; 59 S. J. 441.
Fulham Parish v. Woolwich Union, 76 L. J
K.B. 739; [1907] A.C. 255; 97 L. T. 117
71 J. P. 361 ; 5 L. G. R. 801 ; 23 T. L. R. 583
applied in Tetckesbury Union v. Upton-on
Severn Union, 11 J. P. 9; 10 L. G. R. 1019
followed in Kin gston-upon- Hull Incorporation
V. Hackney Union, 80 L. J. K.B. 489; [19111
1 K.B. 748; 104 L. T. 300; 75 S. J. 249";
9 I.. G. R. 416; 55 S. J. 289.
Fulham Union v. Woolwich Union, 75 L. J.
K.B. 675; 7(; Ti. J. K.B. 739; [1906] 2 K.B.
240; [1907] A.C. 255: considered and ex-
plained in Braintree Union v. Rochford Union,
81 L. J. K.B. 251 ; 106 L. T. 569; 76 J. P. 41 ;
10 L. G. R. 40; 28 T. L. R. 60.
Furnivall v. Coombes, 12 L. J. C.P. 265:
5 Man. & G. 736 : followed in Wailing v.
Lewis, 80 L. J. Ch. 242; [1911] 1 Ch. 414;
104 L. T. 132.
2060 Cases Followed, Not Followed, Approved, Overruled, Questioned,
G.
Galbraith v. Grimshaw, 79 L. J. K.B.
1011 ; [1910] A.C. 508 ; 103 L. T. 294 ; 17 Man-
son, 183; 54 8. J. 634 : applied in Singer <£ Co.
V. Fry, 84 L. J. K.B. 2025; [1915] JE. B. R.
115.
Gall V. Loyal Glenbogie Lodge of the
Oddfellows Friendly Society, 2 Fraser, 1187:
distinguished in Collins v. BarrowfieJd United
Oddfellows, [1915] S. C. 190.
Gamble v. Jordan, 82 L. J. K.B. 748
[1913] 3 K.B. 149; 108 L. T. 1022; 77 J. P
269: 11 L. G. E. 989: 29 T. L. E. 539
distinguished in Guildford Corporation v
Brown, 84 L. J. K.B. 289; [1915] 1 K.B. 256
112 L. T. 415 ; 79 J. P. 143 ; 31 T. L. E. 92.
Game, In re; Game v. Young, 66 L. J. Ch.
505 ; [1897] 1 Ch. 881 : 76 L. T. 450 ; 46 W. R.
472 : followed in Wareham, In re, 81 L. J.
Ch. 578; [1912] 2 Ch. 312; 107 L. T. 80;
56 S. J. 613.
Gedney, In re; Smith v. Grummitt, 77 L. J.
Ch. 428; [1908] 1 Ch. 804; 98 L. T. 797;
15 Manson, 97 : commented on in Thorne A
Son, Lim., In re, 84 L. J. Ch. 161; [1914]
2 Ch. 438; 112 L. T. 30; [1915] H. B. R. 19;
.58 S. J. 755.
Geen v. Newington Vestry, 67 L. J. Q.B.
5.57; [1898] 2 Q.B. 1; 46 W. E. 624; 62 J. P.
564 : principle of, applied in House Property
and Investment Co. v. Grice, 9 L. G. E. 758;
75 J. P. 395.
General Accident Assurance Corporation v.
McGowan, 77 L. J. P.C. 38: [1908] A.C. 207;
98 L. T. 734: 24 T. L. R. 533 : discussed and
explained in Sun Insurance Office v. Clark,
81 L. J. K.B. 488; [1912] A.C. 443; 106 L. T.
438 ; 56 S. J. 378 ; 28 T. L. R. 303.
General Billposting Co. v. Atkinson, 78 L. J.
Ch. 77; [1909] A.C. 118; 99 L. T. 943;
25 T. L. R. 178 : discussed in Konski v. Peet,
84 L. J. Ch. .513; [1915] 1 Ch. 530; 112 L. T.
1107 ; .59 S. J. 383.
Games v. Bonnor, 54 L. J. Ch. 517 ; 33 L. T.
64 : applied in .itkinson's and Horsell's Con-
tract, In re. 81 L. J. Ch. 588 : [1912] 2 Ch. 1 ;
106 L. T. 548: 56 S. J. 324.
General Exchange Bank, In re, L. E. 4 Eq.
138 : principle enunciated by L/ord Eomilly,
M.E. , in, applied in Beer, hi re; Brewer v.
Bowman. 59 S. J. 510.
Gandy Belt Manufacturing Co. v. Fleming,
Birkby and Goodall, 18 E. P. C. 276:
followed in J. T. Smith and J. E. Jones, Lim.
V. Service, Reeve <C Co., 83 L. .J. Ch. 876;
[1914] 2 Ch. 576.
Gange v. Lockwood, 2 F. & F. 115 : fol-
lowed in Rose v. Hyman, 80 L. J. K.B. 1011 ;
[1911] 2 K.B. 234; 104 L. T. 619; 55 S. J.
405 ; 27 T. L. R. 367.
Gardner v. Ingram, 61 L. T. 729: followed
in Lancashire and Yorkshire Bank's Lease,
In re, 83 L. J. Ch. -577; [1914] 1 Ch. 522;
110 L. T. 571.
Garrard v. Lauderdale (Lord), 2 Russ. &
M. 451 : applied in Ellis <f- Co. v. Cross,
84 L. J. K.B. 1622 : [1915] 2 K.B. 654.
Garritt v. Sharp, 4 H. & M. 834; 3 Ad. &
E. 325 ; 1 H. & W. 224 : distinguished in
Bailey v. Holborn and Frascati, Lim., 83 L. J.
Ch. .515; [1914] 1 Ch. -598: 110 L. T. 574;
58 S. J. 321.
Garton v. Great Western Railway, 28 L. J.
Q.B. 103; 1 K. it E. 2-58 : followed in Harrison
V. Bull, 81 L. .J. K.B. 6.56: [1912] 1 K.B. 612;
106 T., T. .396; 56 S. .7. 292: 28 T. L. E. 223.
Gatenby \. Morgan, 45 L. J. Q.B. 597;
1 Q.B. I). 685 : applied in Jones, In re,
84 L. J. Ch. 222; [1915] 1 Ch. 246: 112 L. T.
409; 59 S. J. 218.
General Furnishing and Upholstery Co. v.
Venn, 32 L. .J. Ex. 220; 2 H. & C. 153:
followed in Allix, In re, 83 L. J. K.B. 665;
[1914] 2 K.B. 77: 110 L. T. 592; 21 Man-
son, 1; 58 S. J. 2.50.
General Motor Cab Co., In re, 56 S. J. 573 :
explained in Consolidated Goldfields of South
Africa v. Simmer and Jack East, Lim.,
82 L. J. Ch. 214; 108 L. T. 488; 20 Manson,
142; .57 S. J. 358.
General Motor Cab Co., In re, 81 L. J. Ch.
505 ; [1913] 1 Ch. 377 ; 106 L. T. 709 ; 19 Man-
son, 272; 28 T. L. R. 352 : distinguished in
Sandwell Park Collieries Co., In re, 83 L. J.
Ch. 549; [1914] 1 Ch. -589; 110 L. T. 766;
58 S. J. 432.
General Rolling Stock Co., In re; Joint
Stock Discount Co.'s Claim, ex parte, 41 L. J.
Ch. 732; E. R. 7 Ch. 646; 27 L. T. 88;
20 \V. R. 762 : applied Fleetwood and District
Electric Light and Power Syndicate, In re,
81 L. J. Ch. 374; [1915] 1 Ch. 486; 112 L. T.
1127; [1915] H. B. R. 70; 59 S. J. 383;
31 T. L. R. 221.
George v. Skivington, L. E. 5 Ex. 1 : dis-
cussed in Blacker v. Lake <t Elliot, 106 L. T.
533.
Gerard's Settled Estate, 63 L. J. Ch. 23:
[1893] 3 Ch. 2.52 ; 69 L. T. 393 ; distinguished
in De Crespigny's Settled Estates, In re,
83 L. J. Ch. 46; [1914] 1 Ch. 227; 110 L. T.
2.36; .58 S. J. 2-52.
Explained, Distinguished, and Commented On.
2061
German v. Chapman, 47 L. J. Ch. 250;
7 Ch. D. 271; 37 L. T. 685; 26 W. E. 149 :
observations of James, L.J., in, applied in
Sobey v. Sainsbury, 83 L. J. Ch. 103; [1913]
2 Ch. 513; 109 L. T. 393; 57 S. J. 836.
Gillins, In re, 78 L. J. Ch. 244; [1909]
1 Ch. 345; 100 L. T. 226; 16 Manson, 74:
distinguished in Clifford, In re; Mallam v.
McFie, 81 L. J. Ch. 220; [1912] 1 Ch. 29;
106 L. T. 14 ; 56 S. J. 91 ; 28 T. L. E. 57.
Gibbon v. Paddington Yestry, 69 L. J. Ch.
746 ; [1900] 2 Ch. 794 ; 83 L. T. 136 ; 49 W. E.
8 ; 64 J. P. 727 : followed in Davies v. London
Corporation, 82 L. J. Ch. 286; [1913] 1 Ch.
415; 108 L. T. 546; 77 J. P. 294; 11 L. G. E.
595; 57 S. J. 341; 29 T. L. E. 315; and in
Beyfus v. Westmiyister Corporation, 84 L. J.
Ch. 838; 112 L. T. 119; 79 J. P. Ill;
13 L. G. E. 40; 59 S. J. 129.
Gibbs V. Guild, 51 L. J. Q.B. 313; 9 Q.B.
D. 59 : considered in Oelkers v. Ellis, 83 L. J.
K.B. 658; [1914] 2 K.B. 139; 110 L. T. 332.
Gibbs V. Rumsey, 2 V. & B. 294: not fol-
lowed in Howell, In re; Buckingham, In re;
Liggins v. Buckingham, 83 L. J. Ch. 811;
[1914] 2 Ch. 173; 111 L. T. 438.
Gibson, In re, L. E. 2 Eq. 669: applied in
Clifford, In re; Mallam v. McFie, 81 L. J. Ch.
220; [1912] 1 Ch. 29; 106 L. T. 14; 56 S. J.
91; 28 T. L. E. 57.
Gibson v. Barton, 44 L. J. M.C. 81 ; L. E.
10 Q.B. 329; 32 L. T. 396; 23 W. E. 858 :
followed in Park v. Lawton, 80 L. J. K.B.
396; [1911] 1 K.B. 588; 104 L. T. 184;
75 J. P. 163; 18 Manson, 151; 27 T. L. E.
192.
Gibson v. Fisher, 37 L. J. Ch. 67; L. E.
5 Eq. 51 ; 16 W. E. 115 : not followed in
Bering, In re, 105 L. T. 404.
Gibson v. Wishart, 83 L. J. P.C. 321;
[1914] W. N. 232 ; 58 S. J. 592 ; 30 T. L. E.
540 : followed in Bagley v. Furness, Withy
d- Co., 83 L. J. K.B. 1546 ; [1914] 3 K.B. 974.
Giebler v. Manning, 75 L. J. K.B. 463
[1906] 1 K.B. 709; 94 L. T. 580; 54 W. E
527 ; 70 J. P. 181 ; 4 L. G. E. 561 ; 22 T. L. E
416 : judgment of Lord Alverstone, C.J., in
explained in Kates v. Jeffery, 83 L. J. K.B
1760; [1914] 3 K.B. 160; 111 Tj. T. 459
24 Cox C.C. 324; 12 L. O. E. 974; 78 J. P
310.
Gilbey v. Great Western Railway, 102 L. T.
202 : applied in Amys v. Barton, 81 L. J.
K.B. 65 ; 105 L. T. 619; 28 T. L. E. 29.
Giles, In re, 65 L. J. Ch. 419; [1896] 1 Ch.
956; 74 L. T. 21; 44 W. E. 283 : not followed
in Beavan, In re, [1913] 2 Ch. 595; 109 L. T.
538.
Ginger, In re, 66 L. J. Q.B. 777; [1897]
2 Q.B. 461; 76 L. T. 808; 46 W. E. 144;
4 Manson, 149 : distinguished in Harvey,
In re, [1912] 2 Ir. E. 170 : approved and
followed in Hollinshead v. Egan, Lim.,
83 L. J. P.C. 74; [1913] A.C. 564; 109 L. T.
681 ; 20 Manson, 323 ; 57 S. J. 661 ; 29 T. L. E.
640.
Girdlestone v. Brighton Aquarium, 48 L. J.
Ex. 373; 3 Ex. D. 137 : followed in Forbes v.
Samuel, 82 L. J. K.B. 1135; [1913] 3 K.B.
706 ; 29 T. L. E. 544.
Gist, In re; Gist v. Timbrill, 75 L. J. Ch.
657; [1906] 2 Ch. 280; 95 L. T. 41;
22 T. L. E. 637 : followed in White, In re,
111 L. T. 274; 58 S. J. 611.
Glasgow (Lord ProYost) v. Farie, 58 L. J.
P.C. 33; 13 App. Cas. 657; 60 L. T. 274;
37 W. E. 627 : followed in B arnard- Argue -
Roth-Steams Oil dc. Co. v. Farquharson.
[1912] A.C. 864; 28 T. L. E. 590.
Glasgow Corporation Water Commissioners
V. Miller, 23 Sc L. E. 285 : followed in
Mullingar Rural Council v. Rowles, [1913]
2 Ir. E. 44 ; 6 Tax Cas. 85.
Glendevon, The, 62 L. J. P. 123 : [1893] P.
269 ; 70 L. T. 416 : distinguished in Mawsov
Shipping Co. v. Beyer, 83 L. J. K.B. 290;
[1914] 1 K.B. 304; 109 L. T. 973; 19 Com.
Cas. 59.
Glenie v. Tucker, 77 L. J. K.B. 193; [1908]
1 K.B. 263; 98 L. T. 515; 24 T. L. E. 177 :
distinguished in Sliaio v. Holland, 82 L. J.
K.B. 592; [1913] 2 K.B. 15; 108 L. T. 543;
18 Com. Cas. 153; 29 T. L. E. 341.
Glenwood Lumber Co. v. Phillips, 73 L. J.
P.C. 62; [1904] A.C. 405; 90 L. T. 741;
20 T. L. E. 531 : approved in McPherson v.
Temiskaming Lumber Co., 82 L. J. P.C. 113;
[1913] A.C. 145 ; 107 L. T. 664 ; 29 T. L. E. 80.
Glossop v. Heston and Isle worth Local
Board, 49 L. J. Ch. 89; 12 Ch. I). 102:
40 L. T. 736; 28 W. E. Ill : discussed and
distinguished in Jones v. Llanrwst Urbayt
Council, 80 L. J. Ch. 145; [1911] 1 Ch. 393;
103 L. T. 751; 75 J. P. 68; 9 L. G. E. 222:
55 S. J. 125 ; 27 T. L. E. 133 : observations
of James, L.J., in, held inapplicable in
Dawson v. Bingley Urban Council, 80 L. J.
K.B. 842; [1911] 2 K.B. 149; 104 L. T. 659:
75 J. P. 289: 9 L. G. E. 502 ; 55 S. J. 346;
27 T. L. E. 308.
2062 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Goddard v. O'Brien, 9 Q.B. D. 37: ques-
tioned by Fletcher Moulton, L.J.. in Hira-
chand Puriamchayid v. Temple, 80 L. J. K.B.
1155; [1911] -2 K.B. 330; 55 S. J. 519;
27 T. L. R. 430.
Godwin v. Lords Commissioners of the
Admiralty, 81 L. J. K.B. 532 : [1912] 2 K.B.
26; 106 L. T. 136; 56 S. J. 307"; 28 T. L. R.
229; [1912] W.C. Rep. 49: observations of
Fletcher Moulton, L.J., in, distinguished in
Howarth v. Knowles, 82 L. J. K.B. 1325;
[1913] 3 K.B. 675; 57 S. J. 728: 29 T. L. R.
667.
Goldstein v. Sanders, 84 L. J. Ch. 386;
[1915] 1 Ch. 549: 112 L. T. 932 : applied in
Stephenson d Co., In re; Poole v. The Com-
pany {No. 2), 84 L. J. Ch. 563; [1915] 1 Ch.
802; 59 S. J. 429; 31 T. L. R. 331.
Goodall's Settlement, In re, 78 L. J. Ch.
241; [1909] 1 Ch. 440; 110 L. T. 223: dis-
tinguished in Johnson, In re, 84 L. J. Ch. 393;
[1915] 1 Ch. 435 ; 112 L. T. 935 ; 59 S. J. 333.
Goodlad v. Burnett, 1 K. & J. 341 : applied
in Cliflord, In re; MaUam v. McFie, 81 L. J.
Ch. 220; [1912] 1 Ch. 29; 106 L. T. 14;
56 S. J. 91; 28 T. L. R. .57.
Gordon v. St. Mary Abbotts, Kensington
(Yestry), 63 L. .1. M.C. 193; [1894] 2 Q.B.
742; 71 L. T. 196; 58 J. P. 463: followed
in Davies v. London Corporation. 82 L. J.
Ch. 286; [1913] 1 Ch. 415; 108 L. T. 546;
77 J. P. 294; 11 L. G. R. 595; 57 S. J. 341;
29 T. L. R. 315.
Gorely, Ex parte, 34 L. J. Bk. 1 : 4 De G.
.J. & S. 477 : 10 .Jur. (x.s.) 1085 ; 11 L. T. 319 ;
13 W. R. 60 : followed in Sinnott v. Boicden,
81 L. J. Ch. 832: [19121 2 Ch. 414; 107 L. T.
609; [1913] W.C. & I. Rep. 464; 28 T. L. R.
594.
Gorringe v. Mahlstedt, 76 L. J. Ch. 527;
[1907] A.C. 225; 97 L. T. Ill : distinguished
in Williams, In re; Metcalf v. Williams,
83 L. J. Ch. .570: [1914] 2 Ch. 61; 110 L. T.
923; 58 S. J. 470.
Goslan v. Gillies, [1907] S. C. 68: distin-
guished in Carlton v. Sinclair, [1914] S. C.
871.
Gouthwaite v. Duckworth, 12 East, 421:
followed and applied in Karmali Abdulla
Allarakliia v. Vora Karimji Jiwanji, L. R.
42 Ind. App. 48.
Goy & Co., In re, 69 L. J. Ch. 481 ; [1900]
2 Ch. 149; 83 L. T. 309; 48 W. R. 425:
distinguished in Peruvian Railway Construc-
tion Co., [1915] 2 Ch. 144; 59 S. J. 579;
31 T. L. R. 464.
GraflP V. Evans, 51 L. J. M.C. 25 ; 8 Q.B. D.
373; 46 L. T. 347; 30 W. R. 280; 46 J. P.
262 : followed and applied in Metford v.
Edwards, 84 L. J. K.B. 161; [1915]' 1 K.B
172 ; 112 L. T. 78 ; 79 J. P. 84 ; 30 T. L. R. 700.
Graham v. Belfast and Northern Counties
Railway, [1901] 2 Ir. R. 13 : dicta in, doubted
in Bastable v. North British Railway, [1912]
S. C. 555.
Graham v. Works and Public Buildings
Commissioners, 70 L. J. K.B. 860; [19011
2 K.B. 781; 85 L. T. 96; 50 W. R. 122 ';
65 J. P. 677 : applied in Roper v. Works and
Public Buildings Commissioners , 84 L. J. K.B.
219 ; [1915] 1 K.B. 45 ; 111 L. T. 630.
Gramophone Co.'s Application, In re,
79 L. J. Ch. 658; [1910] 2 Ch. 423 ; 103 L. T.
107 ; 27 R. P. C. 689; 26 T. L. R. 597 : dis-
tinguished in Carl Lindstroem Aktiengesells-
chaft's Application. In re. 83 L. J. Ch. 846;
[1914] 2 Ch. 103; .31 R. P. C. 261; 58 S. J.
580; 30 T. L. R. 512.
Grand Junction Canal v. Petty, 57 L. J.
Q.B. 572; 21 Q.B. D. 273; 59 L. T. 767;
36 W. R. 795 ; 52 J. P. 692 : followed in
Arnold v. Morgan, 80 L. J. K.B. 955; [1911]
1 K.B. 314; 103 L. T. 763; 75 J. P. 105;
9 L. G. R. 917.
Grant v. Anderson, 61 L. J. Q.B. 107:
[1892] 1 Q.B. 108; 66 L. T. 79: followed
in Okura v. Forsbacka Jernverks Aktiebolag,
83 L. J. K.B. 561: [1914] 1 K.B. 715;
110 L. T. 464; 58 S. J. 232; 30 T. L. R. 242.
Gray, In re, 65 L. J. Ch. 462; [1896] 1 Ch.
620; 74 L. T. 275; 44 W. R. 406; 60 J. P.
314 : followed in Dowlirtg, In re, 108 L. T. 671.
Goss V. Nugent, 5 B. & Ad. 58: distin-
guished in Morrell v. Studd and Millington,
[1913] 2 Ch. 648; 109 L. T. 628.
Gourlay Bros. & Co. v. Sweeney, 8 Fraser,
905 : discussed in Summerlee Iron Co. v. Free-
land. 82 L. J. P.C. 102; [1913] A.C. 221;
[1913] W.C. & I. Rep. 302; 108 L. T. 465;
57 S. J. 281; 29 T. L. R. 277.
Graysbrook v. Fox, 1 Plowd. 275 : overruled
in Hewson v. Shelley, 83 L. J. Ch. 607;
[1914] 2 Ch. 13; 110 L. T. 785; 58 S. J.
397 ; 30 T. L. R. 402.
Great Central Railway v. Banbury Assess-
ment Committee, 78 L. J. K.B. 225: [1909]
A.C. 78; 100 L. T. 89; 7 L. G. R. 227;
73 J. P. 59; 53 S. J. 177: 25 T. L. R. 143 :
EXPLAIXKD, DiSTINTtUISHED, AND COMMENTED On.
2063
explained in Great Western and Metropolitan
Railways v. Hammersmith Assessment Com-
mittec'UO L. T. 96; 78 J. P. 59 ; 12 L. G. R.
46 : explained in East London Railway Joint
Committee v. Greenwich Assessment Com-
mittee, 82 L. J. K.B. 297: [1913] 1 K.B. 612;
107 L. T. 805; 77 J. P. 153; 11 L. G. R. 265;
29 T. L. R. 171.
Great Northern Salt and Chemical Works,
In re, 59 L. J. 288; 44 Ch. D. 472; 62 L. T.
231; 2 Megone, 46: distinguished in Con-
solidated Nickel Mines, In re, 83 L. J.
Ch. 760; [1914] 1 Ch. 883; 58 S. J. 556;
30 T. L. R. 447.
Great Western (Forest of Dean) Coal Con-
sumers Co., In re, 51 L. J. Ch. 743; 21 Ch.
D. 769; 46 L. T. 875 : applied in Clandown
Colliery Co., In re, 84 L. J. Ch. 420; [1915]
1 Ch. 369 ; 112 L. T. 1060 ; [1915] H. B. R. 93 ;
59 S. J. 350.
Great Western Railway v. Bennett, 36 L. J.
Q.B. 133; L. R. 2 H.L. 27; 16 L. T. 186;
15 W. R. 647 : explained in London and
North-Western Railway v. Howley Park Coal
Co., 80 L. J. Ch. 537; [1911] 2 Ch. 97;
104 L. T. 546; 55 S. J. 459; 27 T. L. R. 389.
Great Western (or Great Northern) Railway
V. Rimell, 27 L. J. C.P. 201: 18 C. B. 575:
considered in Groves v. Cheltenha^n and East
Gloucestershire Building Society, 82 L. J.
K.B. 664; [1913] 2 K.B. 100; 108 L. T. 846.
Grea¥es v. Tofield, 50 L. J. Ch. 118; 14 Ch.
D. 563 ; 43 L. T. 100 : distinguished in
Monolithic Building Co., In re; Tacon v. The
Company. 84 L. J. Ch. 441; [1915] 1 Ch. 643;
112 L. T. 619; 59 S. J. 332.
Green, In re; Green v. Meinall, 80 L. J.
Ch. 623; [1911] 2 Ch. 275; 105 L. T. 360;
55 S. J. 552; 27 T. L. R. 490 : distinguished
in Mudge, In re, 82 L. J. Ch. 381; [1913]
2 Ch. 92; 108 L. T. 950; 57 S. J. 578.
Green v. Rheinberg, 104 L. T. 149: followed
in Ashburton (Lord) v. Nocton, 83 L. J.
Ch. 831; [1914] 2 Ch. 211; 58 S. J. 635;
30 T. L. R. 565.
Greenhalgh v. Brindley, 70 L. J. Ch. 740;
[1901] 2 Ch. 324; 84 L. T. 763; 49 W. R.
597 : approved in Smith v. Colbourne, 84 L. J.
Ch. 112; [1914] 2 Ch. 533; 111 L. T. 927;
58 S. J. 783.
Greenwell v. Low Beechburn Colliery Co.,
66 L. J. Q.B. 643: [1K97] 2 Q.B. 165; 76 1;. T.
759 : distinguished in Att.-Gen. v. Roe,
84 L. J. Ch. 322; [1915] 1 Ch. 235; 112 L. T.
581; 79 J. P. 263; 13 L. G. R. 335.
Greenwood v. Wadsworth, 43 L. J. Ch 788-
L. R. 16 Eq. 288; 29 L. T. 88 : not followed
in Clegg v. Metcalfe, 83 L. J. Ch. 743; [1914]
1 Ch. 808; 111 L. T. 124; 78 J. P. 251;
12 L. G. R. 606; 58 S. J. 516; 30 T. L. R. 410.
Gregson, In re ; Christison v. Bolam, 57 L J
Ch. 221; 36 Ch. D. 223; 57 L. T. 2.50 : com-
mented on in Thome d Son, Lim., In re,
84 L. J. Ch. 161 ; [1914] 2 Ch. 438 ; 112 L. T
30; [1915] H. B. R. 19; .58 S. J. 755.
Gresley, In re; Willoughby v. Drummond,
80 L. J. Ch. 255 ; [1911] 1 Ch. 358 ; 104 L. T.
244 : distinguished in Greenwood, In re.
81 L. J. Ch. 298; [1912] 1 Ch. 392; 106 L. T.
424; 56 S. J. 443: not followed in Clunie-
Ross, In re, 106 L. T. 96; 56 S. J. 252.
Greswolde-Williams v. Barneby, 83 L. T.
708 : considered and applied in Millbourn v.
Lyons, 83 L. J. Ch. 737; [1914] 2 Ch. 231;
111 L. T. 388.
Grey v. Friar, 4 H.L. C. 565: considered
in Strait v. Fenner, 81 L. J. Ch. 710; [1912]
2 Ch. 504.
Grey v. Grey, 2 Swanst. 594: followed m
Commissioner of Stamp Duties v. Byrnes,
80 L. J. P.C. 114; [1911] A.C. 386; 104 L. T.
515 ; 27 T. L. R. 408.
Greymouth Point Elizabeth Railway Co.,
In re, 73 L. J. Ch. 92; [1904] 1 Ch. 32;
11 Manson, 85 : followed in Cox v. Dublin
City Distillery, [1915] 1 Ir. R. 345.
Griffith-Boscawen v. Scott, 53 L. J. Ch.
571; 26 Ch. D. 358; 50 L. T. 386; 32 W. R.
580 : followed in Horsfall, In re, 80 L. J.
Ch. 480; [1911] 2 Ch. 63; 104 L. T. 590.
Griffith's Cycle Corporation v. Humber,
68 L. J. Q.B. 959; [1899] 2 Q.B. 414;
81 L. T. 310 : followed in Daniels v. Trefusis,
83 L. J. Ch. 579; [1914] 1 Ch. 788; 109 L. T.
922; 58 S. J. 271.
Griffiths, In re, 12 Ch. D. 655: 41 L. T.
540: distinguished in Sale, In re; Nisbet v.
Philp, [1913] 2 Ch. 697.
Griga v. Harelda (Owners), 3 B.W.C.C.
116 : followed in Oiapmau v. Sage. 113 L. T.
623.
Grimble v. Preston, 83 L. J. K.B. 347;
[1914] 1 K.B. 270: 110 L. T. 115; 78 J. P. 72 ;
12 L. G. R. 382; 24 Cox C.C. 1 ; 30 T. L. R.
119 : applied in Ilaynes v. Davis, 84 L. J.
K.B. 441: [1915] 1 K.B. 332; 112 L. T. 417;
79 J. P. 187; 13 L. G. R. 497.
2064 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Grimond v. Grimond, 7t L. J. P.C. 35;
[1905] A.C. 124; 92 L. T. 477; 21 T. L. R.
323 : followed in Da Costa, In re, 81 L. J.
Ch. 293; [1912] 1 Ch. 337; 106 L. T. 458;
56 S. J. 240; 28 T. L. R. 189.
Grimthorpe (Lord), In re, 78 L. J. Ch. 20;
[1908] 2 Ch. 675; 99 L. T. 679; 25 T. L. R.
15 : distinguished in O'Grady's Settlement,
In re, 84 L. J. Ch. 496; [1915] 1 Ch. 613;
112 L. T. 615; 59 S. J. 332.
Grove v. Dubois, 1 Term Rep. 112: con-
sidered in Gabriel v. Churchill d Sim, 84 L. J.
K.B. 233; [1914] 3 K.B. 1272; 111 L. T. 933;
19 Com. Cas. 411: 58 S. J. 740; 30 T. L. R.
658.
Groves v. Wimborne (Lord), 67 L. J. Q.B.
862; [1898] 2 Q.B. 402; 79 L. T. 284;
47 W. R. 87 : distinguished in Watkins v.
Naval Colliery Co., 80 L. J. K.B. 746; [1911]
1 K.B. 163: 104 L. T. 439.
Guardian Permanent Benefit Building
Society, In re; Crace-Calvert's Case, 52 L. J.
Ch. 857; 23 Ch. D. 440; 48 L. T. 134;
32 W. R. 73 : distinguished in Sinclair v.
Brougham, 83 L. J. Ch. 465; [1914] A.C.
398 ; 111 L. T. 1 : 58 S. J. 302 ; 30 T. L. R. 316.
Gutteridge v. Munyard, 1 Moo. & R. 334;
7 Car. & P. 129 : explained and distinguished
in Lurcott v. Wakeley, 80 L. J. K.B. 713;
[1911] 1 K.B. 905 : 104 L. T. 290 ; 55 S. J. 290.
Gvjilliam v. Twist, 64 L. J. Q.B. 474;
[1895] 2 Q.B. 84 ; 72 L. T. 579 : 43 W. R. 566 ;
69 J. P. 484 : considered and distinguished in
Ricketts v. Tilling, 84 L. J. K.B. 342; [1915]
1 K.B. 644 ; 112 L. T. 137 ; 31 T. L. R. 17.
Gyles, In re, [1907] 1 Ir. R. 65: dissented
from in Walford, In re, 81 L. J. Ch. 128;
[1912] 1 Ch. 219 : 105 L. T. 739.
H.
Hackney Furnishing Co. v. Watts, 81 L. J.
K.B. 993; [1912] 3 K.B. 225; 106 L. T. 676;
28 T. L. R. 417 : followed in Jay's Furnishing
Co. V. Brand, 83 L. J. K.B. 505; [1914]
2 K.B. 132; 110 I.. T. 108; 30 T. L. R. 244.
Hackney Union v. Kingston-upon-Hull In-
corporation for the Poor, 81 L. J. K.B. 739;
[1912] A.C. 475; 106 L. T. 909; 76 J. P. 361;
10 L. G. R. 409 ; 56 S. J. 535 ; 28 T. L. R. 418 :
followed and applied in Tewkesbury Union v.
Upton-on-Severn, [1913] 3 K.B. 475 ; 109 L. T.
557; 77 J. P. 9; 10 L. G. R. 1019.
Hadley, In re ; Johnson v. Hadley, 78 L. J.
Ch. 254; [1909] 1 Ch. 20; 100 L. T. 54;
25 T. L. R. 44 : followed and applied in
Pryce, In re; Lawford v. Pryce, 80 L. J.
Ch. 525; [1911] 2 Ch. 286; 105 L. T. 51;
considered and applied in O'Grady, In re,
84 L. J. Ch. 496; [1915] 1 Ch. 613; 112 L. T.
615 ; 59 S. J. 332.
Halbronn v. International Horse Agency,
72 L. J. K.B. 90 ; [1903] 1 K.B. 270 ; 88 L. T.
232 ; 51 W. R. 622 : disapproved in Williams
V. Lister, 109 L. T. 699.
Haley v. Bannister, 4 Madd. 275. 277:
dictum in, disapproved in Cattell, In re,
83 L. J. Ch. 322 ; [1914] 1 Ch. 177 ; 110 L. T
137 ; 58 S. J. 67.
Hall, In re, 2 Jur. (n.s.) 1076: considered
in Wells V. Wells, 83 L. J. P. 81; [1914]
P. 157; 111 L. T. 399; 58 S. J. 565;
30 T. L. R. 546.
Hall, In re; Hall v. Hall, 54 L. J. Ch. 527;
33 W. R. 508 : distinguished in Cotter, In re,
84 L. J. Ch. 337 ; [1915] 1 Ch. 307 ; 112 L. T.
340; 59 S. J. 177.
Hall, In re; Watson v. Hall, 56 S. J. 615;
28 T. L. R. 480 : distinguished in Ashburn-
ham, In re, 107 L. T. 601; 67 S. J. 28.
Hall V. Hill, 1 Dr. & W. 94: considered in
Shields, In re ; Corbould-Ellis v. Dales, 81 L. J.
Ch. 370; [1912] 1 Ch. 591; 106 L. T. 748.
Hall V. Lund, 32 L. J. Ex. 113; 1 H. & C.
676 : distinguished in Pwllbach Colliery Co. v.
Woodman, 84 L. J. K.B. 874; [1915] A.C.
634 ; 113 L. T. 10 ; 31 T. L. R. 271.
Hallett's Estate, In re; Knatchbull v.
Hallett, 49 L. J. Ch. 415; 13 Ch. D. 696;
42 L. T. 421 : 28 W. R. 732 : explained in
Sinclair v. Brougham, 83 L. J. Ch. 465;
[1914] A.C. 398; 111 L. T. 1; 58 S. J. 302;
30 T. L. R. 315 : distinguished in Roscoe
(Bolton), Lim. v. Winder, 84 L. J. Ch. 286;
[1915] 1 Ch. 62; 112 L. T. 120: [1915]
H. B. R. 61; 59 P. J. 105.
Hamill v. Lilley, 56 L. J. Q.B. 337;
19 Q.B. D. 83; 56 L. T. 620; 35 W. R. 437;
distinguished in Manks v. Whiteley, 82 L. J.
Ch. 267 ; [1913] 1 Ch. 581 ; 108 L. T. 450.
Hamilton v. Hamilton, 61 L. J. Ch. 220
[1892] 1 Ch. 396 ; 66 L. T. 112 ; 40 W. R. 312
followed in Hargrove, In re, 84 L. J. Ch. 484
[1915] 1 Ch. 398 : 112 L. T. 1062 ; 59 S. J. 364.
Hamilton v. Long, [1903] 2 Ir. R. 407:
[1905] 2 Ir. R. 552 : approved and followed
in Peters v. Jones, 83 L. J. K.B. 1115 ; [1914]
2 K.B. 781 ; 110 L. T. 937 ; 30 T. L. R. 421.
Explained, Distinguished, axd Commented 0.\.
2065
Hamilton v. Mackie, 5 T. L. R. 677: ap-
proved and followed in Thomas v. Portsea
Steamship Co., 105 L. T. 257; 55 S. J. 615 :
followed in The Portsmouth, 81 L. J. P. 17;
[1912] A.C. 1 ; 105 L. T. 257 ; 12 Asp. M.C.
23; 55 S. J. 615.
Hamilton v. Watson, 12 CI. & F. 109: dis-
tinguished in London General Omnibus Co. v.
Holloway, 81 L. J. K.B. 603; [1912] 2 K.B.
72; 106 L. T. 502.
Hamlyn v. Talisker Distillery Co., [1894]
A.C. 202 ; 71 L. T. 1 ; 58 J. P. 540 : applied
in Pena Copper Mines v. Rio Tinto Co.,
105 L. T. 846.
Hankow, The, 48 L. J. P. 29; 4 P. D. 197
approved in The Umsinga, 81 L. J. P. 65
[1912] P. 120; 106 L. T. 722; 56 S. J. 270
28 T. L. R. 212.
Hanley v. Niddrie and Benhar Coal Co.,
[1910] S. C. 875 : considered and explained
in Popple V. Frodingham Iron and Steel
Co., 81 L. J. K.B. 769; [1912] 2 K.B. 141;
106 L. T. 703.
Harberton, The, 83 L. J. P. 20: [1913] P.
149; 108 L. T. 735; 12 Asp. M.C. 342;
29 T. L. R. 490 : distinguished in The Ancona,
84 L. J. P. 183; [1915] P. 200.
Harbridge v. Warwick, 18 L. J. Ex. 245;
3 Ex. 552 : explained in Mallam v. Rose,
84 L. J. Ch. 934; [1915] 2 Ch. 222.
Harburg Indiarubber Comb Co. v. Martin,
71 L. J. K.B. 529 ; [1902] 1 K.B. 778 ; 86 L. T.
505 ; 50 \V. R. 449 : considered in Davys v.
Buswell, 82 L. J. K.B. 499 ; [1913] 2 K.B. 47 ;
108 L. T. 244.
Hargreaves, In re, 88 L. T. 100: considered
and distinguished in Craven, In re; Watson v.
Craven, 83 L. J. Ch. 403; [1914] 1 Ch. 358:
109 L. T. 846; 58 S. J. 138; and in Forster-
Brown, In re, 84 L. J. Ch. 361 : [1914] 2 Ch.
584 ; 112 L. T. 681 : considered and the
method of computation adopted therein applied
in Hart. In re. 107 T.. T. 7-57.
Harnett v. Miles, 48 J. P. 4-J5 : followed in
Cook V. Trevener, 80 L. J. K.B. 118: [1911]
1 K.B. 9; 103 L. T. 725; 74 .T. P. 469;
27 T. L. R. 8.
Harriman v. Harriman, 78 L. .1. P. 62:
[1909] P. 123; 100 L. T. 557; 73 J. P. 193;
53 S. J. 265 ; 25 T. L. R. 291 : followed in
Stevenson v. Stevenson, 80 L. J. P. 137;
[1911] P. 191; 27 T. L. R. 547.
Harris, In re, 14 Manson, 127: discussed in
David ,{■ Adlard, In re, [1914] 2 K.B. 694.
Harris v. Beauchamp, 63 L. .T. Q.B. 480;
[1894] 1 Q.B. 801: 70 L. T. 636: 42 W. R.
451 : followed in Morgan v. Hart. 83 L. J.
K.B. 782; [1914] 2 K.B. 183; 110 L. T. 611:
30 T. L. R. 286.
Harris v. Harris {No. 2), 29 Beav. 110: ex-
plained in Robinson, In re; McLaren v.
Public Trustee, 80 L. J. Ch. 381 ; [1911] 1 Ch.
.502; 104 L. T. 331 ; 55 S. J. 271.
Harris v. Judge, 61 L. J. Q.B. 577 ; [1892"i
2 Q.B. 565 : 67 L. T. 19 ; 41 W. R. 9 : followed
in Buckley d- Beach v. National Electrio
Theatres. 82 L. J. K.B. 739; [1913] 2 K.B.
277 : 108 L. T. 871.
Harris v. Poyner, 1 Drew. 174 : approved in
Wareham, In re, 81 L. .7. Ch. 578; [1912]
2 Ch. 312; 107 L. T. 80; 56 S. J. 613.
Harding v. Brynddu Colliery Co., 80 L. J.
K.B. 1052; [1911] 2 K.B. 747; 105 L. T. 55;
55 S. J. 599 ; 27 T. L. R. 500 : considered in
Parker v. Hambrook, 56 S. J. 750 : followed
in Jackson v. Denton Collieries Co., [1914]
W.C. & I. Rep. 91 ; 110 L. T. 559.
Hardoon v. Belilios, 70 L. J. P.C. 9: [1901]
A.C. 118; 83 L. T. 573; 49 W. R. 209:
applied in Matthews v. Ruggles-Brise, 80 L. J.
Ch. 42; [1911] 1 Ch. 194; 103 L. T. 491.
Hardwicke (Earl) v. Douglas, 7 CI. & F.
795 : discussed in Stnndley, In re, 84 L. J.
Ch. 822; [1915] 2 Ch. 295; 59 S. J. 681.
Hare v. Burges, 27 L. J. Ch. 86: 4 K. <fc J.
45 : applied in Wynn v. Conway Corporation,
81 L. J. Ch. 203; [1914] 2 Ch. 705; 111 L. T.
1016; 78 J. P. 380; 13 L. G. R. 137; 59 S. J.
43; 30 T. L. R. 666.
Harrison, In re, 55 L. J. Ch. 687; .32 Ch. D.
395 ; 55 L. T. 150; 34 W. R. 736 : principle of,
applied in Beavan, In re, [1913] 2 Ch. 595.
Harrison v. Wright, 13 East, 343: followed
in Wall V. Rederiaktiebolaget Luggude.
84 L. J. K.B. 1663; [1915] 3 K.B. 66:
31 T. L. R. 487.
Harse v. Pearl Life Assurance Co., 73 L. J.
K.B. 373; [1904] 1 K.B. 558; 90 L. T. 245;
52 W. R. 457 ; 20 T. L. R. 264 : applied to
insurances by friendly societies in Evans v.
Crooks, 106 L. T. 264 : discussed in Phillips
V. Royal London Mutual Insuraiice Co.,
105 L. T. 136.
Hart, In re; Green, ex parte, 81 L. J. K.B.
1213; [1912] 3 K.B. 6; 107 L. T. 368:
19 Manson, 334 : 56 S. J. 615 : 28 T. L. R. 482 :
followed in Shrager, In re, 108 L. T. 346.
2066 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Hartland, In re; Banks v. Hartland,
80 L. J. Ch. 305 ; [1911] 1 Ch. 459 ; 104 L. T.
490; 65 S. J. 312 : followed in Briggs, In re,
83 L. J. Ch. 874; [1914] 2 Ch. 413; 111 L. T.
939; 58 S. J. 722.
Hartshorne v. Coppice Colliery Co.,
106 L. T. 609 : applied in Godbold V. London
County Couyicil, 111 L. T. 691.
Harvey v. Stracey, 22 L. J. Ch. 22; 1 Drew.
73 : applied in Wiiiy, In re. [1913] 2 Ch. 666;
109 L. T. 590.
Harwood v. Wyken Colliery Co., 82 L. J
K.B. 414; [1913] 2 K.B. 158; 108 L. T. 282
[1913] W.C. & I. Eep. 317; 57 S. J. 300
29 T. L. li. 290 : applied in McNally v
Furness, Withy <& Co., 82 L. J. K.B. 1310;
[1913] 3 K.B. 605 ; 109 L. T. 270 ; 29 T. L. E.
678.
Hasluck V. Pedley, 44 L. J. Ch. 143; L. E
19 Eq. 271 : dictum of Jessel, M.E., in, fol-
lowed in Ford, In re, 80 L. J. Ch. 355; [1911]
1 Ch. 455; 104 L. T. 245.
Hastings Peerage Claim, 8 CI. & F. 144 not
followed in St. John Peerage Claim, [1915]
A.C. 282; 30 T. L. E. 640.
Hatschek's Patents, In re, 78 L. J. Ch. 402;
[1909] 2 Ch. 68; 100 L. T. 809; 26 E. P. C.
228; 25 T. L. E. 457: followed in Robin
Electric Lamp Co., In re (No. 2), 84 L. J. Ch.
500; [1915] 1 Ch. 780; 113 L. T. 132;
32 E. P. C. 202 ; 31 T. L. E. 309.
Hawksley v. Outram, 62 L. J. Ch. 215;
[1892] 3 Ch. 359; 67 L. T. 804 : applied in
Morrell v. Studd ,f Millington, [1913] 2 Ch.
648.
Hawley, In re ; Ridgway, ex parte, 4 Man-
son, 41 : distinguished in Jones Brothers, In
re; Associated Neivspapers, ex parte, 81 L. J.
K.B. 1178; [1912] 3 K.B. 234; 56 S. J. 751.
Haworth v. Knowles, 19 T. L. E. 658: dis-
tinguished in Allen v. (heat Eastern Railway,
83 L. J. K.B. 898; [1914] 2 K.B. 243;
110 L. T. 498.
Hawthorn v, Shedden, 25 L. J. Ch. 833;
2 Sill. & (1. 293 : followed and applied in
Seabrook, hi re; Gray v. Baddeley, 80 L. J.
Ch. 61 ; [1911] 1 Ch. 151 ; 103 L. T. 587.
Hayes, In re, [1899] 1 Ir. E. 206: over-
ruled in Harvey, In re, [1912] 2 Ir. E. 170.
Haylock v. Spark, 22 L. J. M.C. 67;
1 E. & B. 471; 17 Jur. 731; 20 L. T. fo.s.)
276 : followed in Lansbury v. Riley, 109 L. T.
546; 29 T. L. K. 733.
Haynes v. Foster, 70 L. J. Ch. 3U2 ; [1901]
1 Ch. 361; 84 L. T. 139: distinguished in
Hargrove, In re. 84 L. J. Ch. 302; [1915]
1 Ch. 398: 112 L. T. 1062; 59 S. J. 364; and
in Tongue, In re; Burton, In re, 84 L. J. Ch.
378; [1915] 1 Ch. 390; 112 L. T. 685.
Hayward v. West Leigh Colliery, 84 L. J.
K.B. 661; [1915] A.C. 540; [1915] W.C.
& I. Eep. 223; 112 L. T. 1001; 59 S. J. 269;
31 T. L. E. 215 : discussed and explained in
Miller v. Richardson, 84 L. J. K.B. 1366;
[1915] 3 K.B. 76; 113 L. T. 609; [1915] W.C.
& I. Eep. 381.
Haywood v. Brunswick Permanent Benefit
Building Society, 51 L. J. Q.B. 73; 8 Q.B. D.
403; 45 L. T. 699; 30 W. E. 299 : followed
and applied in Smith v. Colbourne, [1914]
2 Ch. 533; 58 S. J. 783.
Hazeldine's Trusts, In re, 77 L. J. Ch. 97 ;
[1908] 1 Ch. 34 ; 97 L. T. 818 : followed in
Fox, In re; Brookes v. Marston, 82 L. J. Ch.
393; [1913] 2 Ch. 75; 108 L. T. 948.
Healey v. Galloway, 41 Ir. L. T. 5 : con-
sidered in Luckie v. Merry, 84 L. J. K.B.
1388 ; [1915] 3 K.B. 83 ; [1915] W.C. & I. Eep.
395 ; 113 L. T. 667 ; 59 S. J. 544 ; 31 T. L. E.
466.
Heard v. Pickthorne, 82 L. J. K.B. 1264;
[1913] 3 K.B. 299; [1913] W.C. & I. Eep.
685 ; 108 L. T. 818 ; 11 L. G. E. 621 ; 57 S. J.
532 ; 29 T. L. E. 497 : distinguished in Bailey
V. Co-operative Wholesale Society, 83 L. J.
K.B. 948; [1914] 2 K.B. 233; 110 L. T. 816;
78 J. P. 285; 12 L. G. E. 545; 58 S. J. 304;
30 T. L. E. 299.
Hearle v. Greenbank, 3 Atk. 695, 715: ap-
I plied in De Virte, In re, 84 L. J. Ch. 617;
I [1915] 1 Ch. 920; 112 L. T. 972.
i Hearle v. Hicks, 1 CI. & F. 20: followed
in Stoodley, In re, 84 L. J. Ch. 822; [1915]
2 Ch. 295; 59 S. J. 681.
Heasman v. Pearse, L. E. 7 Ch. 275 : state-
ment of the law by James, L.J., in, applied
and supplemented in Haygarth, In re; Wick-
ham V. Holmes, 81 L. J. Ch. 255; [1912]
1 Ch. 510; 106 L. T. 93; 56 S. J. 239.
Heather v. Webb, 46 L. J. C.P. 89; 2 C.P.
D. 1 ; 25 W. E. 253 : distinguished in
Bonacina, In re, 81 L. J. Ch. 674; [1912]
2 Ch. 394; 107 L. T. 498; 56 S. J. 667;
28 T. L. E. 508.
Heaver v. Fulham Borough Council, 72 L. J.
K.B. 715; [1904] 2 K.B. 383; 91 L. T. 81;
68 J. P. 278 ; 2 L. G. E. 672 ; 20 T. L. E. 383 :
dicta in, referred to in Kershaw v. Paine,
78 J. P. 149; 12 L. G. E. 297.
Hebert v. Royal Society of Medicine, 56 S. J.
107 : explained and distinguished in Seal v.
Turner, 84 L. J. K.B. 1658; [1915] 3 K.B.
194; 113 L. T. 769; 59 S. J. 649.
Helby v. Matthews, 64 L. J. Q.B. 465;
[1895] A.C. 471 ; 72 L. T. 841 : 43 W. E. 561 ;
60 J. P. 20 : considered in Belsize Motor
Supply Co. V. Cox, 83 L. J. K.B. 261; [1914]
1 K.B. 244; 110 L. T. 151.
Explained, Distinguished, and Commented On.
2067
Hepworth v. Heslop, 6 Hare 561 : discussed
in Jo7ies, In re; Peak v. Jones, 83 L. J. Ch.
568; [1914] 1 Ch. 742; 58 S. J. 579.
Herd v. Summers, 8 Fraser, 870: followed
in Meier v. Duhlin Corporation, [1912] 2 Ir. E.
129.
Heritable Reversionary Co. v. Millar, [1892]
A.C. 598 : distinguished in Bank of Scotland
V. Macleod, 83 L. J. P.C. 250; [1914] A.C.
311; 110 L. T. 946.
Heme Bay Urban Council v. Payne, 76 L. J.
K.B. 685; [1907] 2 K.B. 130; 96 L. T. 666;
5 L. G. E. 631 ; 71 J. P. 282 ; 23 T. L. E. 442 :
explained in Alderson v. Bishop Auckland
Urban Council. 82 L. J. K.B. 737; [1913]
2 K.B. 324 ; 70 J. P. 347 ; 10 L. G. E. 722.
Herring v. Metropolitan Board of Works,
19 C. B. (x.s.) 510 : distinguished in Lingke v.
Christchurch Corporation, [1912] 3 K.B. 595 ;
107 L. T. 476; 56 S. J. 735; 28 T. L. E. 536.
Hertfordshire County Council v. Great
Eastern Railway, 78 L. J. K.B. 1076; [1909]
2 K.B. 403; 101 L. T. 213; 73 J. P. 353;
7 L. G. E. 1006 ; 53 S. J. 575 ; 25 T. L. E. 573 :
distinguished in Sharpness New Docks and
Gloucester and Birmingham Navigation Co. v.
Att.-Gen., 84 L. J. K.B. 907; [1915] A.C.
654 ; 112 L. T. 826 ; 79 J. P. 305 ; 13 L. G. E.
563; 59 S. J. 381 : 31 T. L. E. 254.
Hesse v. Albert, 3 Man. & Ey. 406: fol-
lowed in Crouch v. Crouch, 81 L. J. K.B. 275;
[1912] 1 K.B. 378; 106 L. T. 77; 56 S. J.
188; 28 T. L. E. 155.
Hewitt V. Price, 11 L. J. C.P. 292; 4 Man.
6 G. 355 : followed in Hill, In re; Fettes v.
Hill, 58 S. J. 399.
Hext V. Gill, L. E. 7 Ch. 699 : followed in
Thornhill v. Weeks (No. 1), 82 L. J. Ch. 299;
[1913] 1 Ch. 438 ; 108 L. T. 892 ; 77 J. P. 231 ;
11 L. G. E. 362; 67 S. J. 477.
Heywood v. Heywood, 29 Beav. 9 : distin-
guished in Jones, In re, 84 L. J. Ch. 222;
[1915] 1 Ch. 246; 112 L. T. 409; 59 S. J. 218.
Highett and Bird's Contract, In re, 72 L. J.
Ch. 220; [1903] 1 Ch. 287; 87 L. T. 697;
51 W. E. 227 : distinguished in Taunton
and West of England Building Society and
Roberts's Contract, In re, 81 L. J. Ch. 690;
[1912] 2 Ch. 381; 56 S. J. 688; 107 L. T. 378.
Hilcoat V. Canterbury and York (Arch-
bishops), 19 L. J. C.P. 376; 10 C.B. 327:
discussed and explained in Corrie v. Mac-
Dermott, 83 L. J. P.C. 370; [1914] A.C. 1056;
111 L. T. 952.
Hill, In re, 33 Ch. D. 266: applied in
Meter Cabs, In re, [1911] 2 Ch. 557 ; 105 L. T.
572; 56 S. J. 36.
Hill V. Thomas, 62 L. J. M.C. 161 ; [1893]
2 Q.B. 333; 69 L. T. 553; 42 W. E. 85;
57 J. P. 628 : judgment of Bowen, L.J., in,
considered in Ledbury Rural Council v. Somer-
set, 84 L. J. K.B. 1297 ; 113 L. T. 71 ; 79 J. P.
327; 13 L. G. E. 701; 59 S. J. 476;
31 T. L. E. 295.
Hill V. Tottenham Urban Council, 15 T. L. E.
53 : followed in Thompson v. Bradford Cor-
poration, 84 L. J. K.B. 1440; [1915] 3 K.B.
13; 79 J. P. 364; 13 L. G. E. 884; 59 S. J. 495.
Hill V. Wright, 60 J. P. 312 : commented on
in Godman v. Crofton, 83 L. J. K.B. 1524;
[1914] 3 K.B. 803; 111 L. T. 754; 79 J. P.
12; 12 L. G. E. 1330.
Hill's Trusts, In re, 50 L. J. Ch. 134
16 Ch. D. 173 : overruled in Dawson, In re
Pattisson v. Bathurst, 84 L. J. Ch. 476
[1915] 1 Ch. 626; 113 L. T. 19; .59 S. J. .363
31 T. L. E. 277.
Hillyer v. St. Bartholomew's Hospital
Governors, 78 L. J. K.B. 958; [1909] 2 K.B.
820; 101 L. T. 368; 73 J. P. 501; 53 S. J.
714 ; 25 T. L. E. 762 : followed in Foote v.
Greenock Hospital Directors, [1912] S. C. 69.
Hindle v. Taylor, 25 L. J. Ch. 78: 5 De G.
M. & G. 577; 1 Jur. (n.s.) 1029 : distinguished
in Beaumont, In re; Bradshaw v. Packer,
82 L. J. Ch. 183; [1913] 1 Ch. 325; 108 L. T.
181 ; 57 S. J. 283.
Hick V. Raymond, 62 L. J. Q.B. 98: [1893]
A.C. 22; 68 L. T. 175; 41 W. E. .384; 7 Asp.
M.C. 233 : applied in Sims v. Midland Rail-
way, 82 L. J. K.B. 67; [1913] 1 K.B. 103;
107 L. T. 700 ; 18 Com. Cas. 44 ; 29 T. L. E. 81.
Higginson v. Hall, 48 L. J. Ch. 2.50; 10 Ch.
D 235; 39 L. T. 603; 27 W. E. 469: not
followed in Pink v. Shancood, 82 L. J. Ch.
542; [1913] 2 Ch. 286; 108 L. T. 1017:
57 S. J. 663.
High V. Billings, 1 L. G. E. 723: principle
laid down in, followed in House Property and
Investment Co. v. Price, 9 L. G. E. 758;
75 J. P. 395.
Hoare, In re, 61 L. J. Ch. 541; [1892]
3 Ch. 94 : and applied in Yorkshire Insurance
I Co. V. Metropolitan .Amalgamated Estates,
I 81 L. J. Ch. 745; [1912] 2 Ch. 497.
Hobson V. Blackburn, 1 Addams Ecc. 274:
followed in Walker v. Gaskill, 83 L. J. P.
152: [1914] P. 192; 111 L. T. 941; 59 S. J.
45; 30 T. L. E. 637.
Hockley v. West London Timber and
Joinery Co., 83 L. J. K.B. 1.520: [1914]
3 K.B. 1013; [1914] W.C. & I. Eep. 504;
112 li. T. 1 ; 58 S. J. 705 : followed in Bobbey
V. Crosbie, 84 L. J. K.B. 856: [1915] W.C.
& I. Eep. 258; 112 L. T. 900.
2068 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Hodge V. Att.-Gen., 8 L. J. Ex. Eq. 28,
3 Y. & C. 342 : followed in Dyson v. Att.-Gen.,
80 L. J. K.B. 531; [1911] 1 K.B. 410;
103 L. T. 707 ; 55 S. J. 168 ; 27 T. L. R. 143.
Hodges, In re, [1899] 1 Ir. R. 480: dicta
in, disapproved in Oxley, In re, 83 L. J.
Ch. 442; [1914] 1 Ch. 604; 110 L. T. 626;
58 S. J. 319; 30 T. L. R. 327.
Hodson V. Tea Co., 49 L. J. Ch. 234; 14 Ch.
D. 859 ; 28 W. R. 458 : applied in Crompton
d Co., In re, 83 L. J. Ch. 666; [1914] 1 Ch.
954 ; 110 L. T. 759 ; 58 S. J. 433.
Holford, In re, 63 L. J. Ch. 637; [18941
3 Ch. 30; 70 L. T. 777; 42 W. R. 563 : fol-
lowed in Williams' Settlement, In re, 80 Li. J.
Ch. 249; [1911] 1 Ch. 441; 104 L. T. 310;
55 S. J. 236.
Holleran v. Bagnell, 6 L. R. Ir. 333 : dicta
of Morris, C.J., in, disapproved by Lord
Shaw in Taff Vale Railway v. Jenkins,
82 L. J. K.B. 49; 107 L. T. 564; 57 S. J. 27;
29 T. L. R. 19.
Hollis & Son, In re, 112 L. T. 135 ; 58 S. J.
784; 30 T. L. R. 680: approved in Clark,
In re, 84 L. J. K.B. 89; [1914] 3 K.B. 1095;
112 L. T. 873 ; [1915] H. B. R. 1 ; 59 S. J. 44.
Hollis' Hospital and Hague's Contract, In
re, 68 L. J. Ch. 673; [1899] 2 Ch. 540:
81 L. T. 90; 47 W. R. 691: followed in
Da Costa, In re, 81 L. J. Ch. 293; [1912]
1 Ch. 337: 106 L. T. 458; 56 S. J. 240;
28 T. L. R. 189.
Home, In re; Ferniehough v. Wilkinson,
[1908] W. N. 223 : followed in .ishburnham.
In re, 107 L. T. 601 ; 57 S. J. 28.
Hope V. Cowan, 82 L. J. Ch. 439; [1913]
2 Ch. 312; 108 L. T. 945; 57 S. J. 559;
29 T. L. R. 520 : dictum in, followed in Gold-
foot V. Welsh, 83 L. J. Ch. 360; [1914] 1 Ch.
213; 109 L. T. 820.
Hope v. Croydon and Norwood Tramways,
56 L. J. Ch. 760; 24 Ch. D. 730; 56 L. T.
822; 35 W. R. 594: distinguished in Cleary
V. Brazil Eailtcay, 85 L. J. K.B. 32:
113 L. T. 96.
Hopkins v. De Robeck, 3 Term Rep. 79:
considered in Republic of Bolivia Exploration
Syndicate, In re. 83 L.' J. Ch. 226; [1914]
1 Ch. 139; 109 L. T. 741; 110 L. T. 141;
68 S. J. 173: 30 T. L. R. 78.
Horn V. Admiralty Commissioners, 80 L. J.
K.B. 278; [1911] 1 K.B. 24; 103 L. T. 614;
27 T. L. R. 84 : distinguished in Leaf v.
Furze, 83 L. J. K.B. 1822; [1914] 3 K.B.
1068; [1914] W.C. & I. Rep. 601; 111 L. T.
1100 : approved in Godwin v. .idmiralty
Commissioners. 82 L. J. K.B. 1126; [1913]
A.C. 638; 109 L. T. 428: followed in
Howarth v. Knoivles, 82 L. J. K.B. 1325;
[1913] 3 K.B. 675; 57 S. J. 728; 29 T. L. R.
667.
Home, In re; Wilson v. Cox-Sinclair,
74 L. J. Ch. 25; [1905] 1 Ch. 76; 92 L. T.
263; 53 W. R. 317 : considered in Ainsworth,
In re; Finch v. Smith, 84 L. J. Ch. 701;
[1915] 2 Ch. 96; 31 T. L. R. 392.
Home's Settled Estate, In re, 57 L. J. Ch.
790; 39 Ch. D. 84; 59 L. T. 580; 37 W. R.
69 : distinguished in Johnson, In re, 84 L. J.
Ch. 393; [1915] 1 Ch. 435; 112 L. T. 935;
59 S. J. 333.
Horsfall, Ex parte, 6 L. J. (o.s.) K.B. 48:
7 B. & C. 528 : distinguished in Crawford
(Earl) V. Baton, [1911] S. C. 1017.
Horsnaill, In re; Womersley v. Horsnaill,
78 L. J. Ch. 331; [1909] 1 Ch. 631; 100 L. T.
603 : approved and followed in Kipping, In re,
83 L. J. Ch. 218; [1914] 1 Ch. 62; 109 L. T.
919.
Horton v. Walsall Assessment Committee,
67 L. J. Q.B. 804; [1898] 2 Q.B. 237;
78 L. T. 684 ; 46 W. R. 607 ; 62 J. P. 437 :
followed and explained in Hendon Paper
Works Co. V. Sunderland Union, 84 L. J.
K.B. 476; [1915] 1 K.B. 763; 112 L. T. 146;
79 J. P. 113; 13 L. G. R. 97.
Hotchkys, In re; Freke v. Calmady, 55 L. J.
Ch. 546; 32 Ch. D. 408; 55 L. T. 110;
34 W. R. 569 : distinguished in Johnson,
In re; Cowley v. Public Trustee, 84 L. J.
Ch. 393; [1915] 1 Ch. 435; 112 L. T. 935;
59 S. J. 333.
Houston, In re, [1909] 1 Ir. R. 319 : fol-
lowed in Cross's Trust, In re, [1915] 1 Ir. R.
304.
How V. Winterton (Earl), 65 L. J. Ch. 832;
[1896] 2 Ch. 626; 75 L. T. 40; 45 W. R. 103 :
followed in Blow, hi re; St. Bartholomew's
Hospital (Governors) v. Cambden, 83 L. J.
Ch. 185; [1914] 1 Ch. 233; 109 L. T. 913;
58 S. J. 136; 30 T. L. R. 117.
Howard v. Howard, 21 Beav. 550: followed
in Fisher, In re, 84 L. J. Ch. 342; [1916]
1 Ch. 302 ; 112 L. T. 548 ; 59 S. J. 318.
Howarth, In re, 78 L. J. Ch. 687; [1909]
2 Ch. 19; 100 L. T. 865; 53 S. J. 519 : dis-
tinguished in Boulcott's Settlement, In re,
104 L. T. 205 : 55 S. J. 313 : followed in
Young, In re; Brown v. Hodgson, 81 L. J.
Ch. 817 ; [1912] 2 Ch. 479.
Howe V. Smith, 53 L. J. Ch. 1055 ; 27 Ch.
D. 89; 50 L. T. 573 : explained in Hall v.
Bumell, [1911] 2 Ch. 551; 105 L. T. 409;
55 S. J. 737.
Explained, Distinguished, and Commented Ox.
2069
Hubbard, Ex parte, 55 L. J. Q.B. 490;
17 Q.B D. 690; 59 L. T. 172n. ; 35 W. R. 2;
3 Morrell, 246 : distinguished in Dublin City
Distillery v. Doherty, 83 L. J. P.C. 265;
[1914] A.C. 823; 111 L. T. 81; 58 S. J. 413.
Hudson V. Carmichael, 23 L. J. Ch. 893, at
p. 894; Kay, 613. at p. 620 : statement of the
law by Wood, V.C., in, is not overruled or dis-
sented from by Lindley, L.J., in Paget v.
Paget (67 L. J. Ch. 266, at p. 270; [1898]
1 Ch. 470, at pp. 474, 475) : so held in Hall v.
Hall, 80 L. J. Ch. 340; [1911] 1 Ch. 487;
104 L. T. 529.
Huggett V. Miers, 77 L. J. K.B. 710;
[1908] 2 K.B. 278; 99 L. T. 326; 24 T. L. E.
582 : followed in Lucy v. Bawden, 83 L. J.
K.B. 523; [1914] 2 K.B. 318; 110 L. T. 580;
30 T. L. R. 321. I
Hughes V. Coed Talon Colliery Co., 78 L. J. I
K.B. 539 ; [1909] 1 K.B. 957 ; 100 L. T. 555 : I
considered and applied in Ing v. Higgs, [1914]
W.C. & I. Rep. 84 ; 110 L. T. 442.
Hughes V. Justin, 63 L. J. Q.B. 417 : [1894J
1 Q.B. 667; 70 L. T. 365; 42 W. R. 339:
followed in Muir v. Jenks, 82 L. J. K.B. 703;
[1913] 2 K.B. 412 ; 108 L. T. 747 ; 67 S. J. 476.
Huguenin v. Basely, 14 Ves. 273: applied
in Lloyd v. Coote d Ball, 84 L. J. K.B. 567 ;
[1915] 1 K.B. 242 ; 112 L. T. 344.
Hulm and Lewis, In re, 61 L. .J. Q.B. 502 :
[1892] 2 Q.B. 261 ; 66 L. T. 683 : distinguished
in Hurst and Middleton, Lim., In re, [1912]
2 Ch. 520; 107 L. T. 502; 56 S. J. 652;
28 T. L. R. 500.
Hulse V. Hulse, 40 L. J. P. 51; L. R.
2 P. & D. 2.59; 24 L. T. 847: applied in
Sinclair v. Fell, 82 L. J. Ch. 105; [1913]
1 Ch. 155; 108 L. T. 152; 57 S. J. 145;
29 T. L. R. 103.
Humphries v. Humphries, 79 L. J. K.B.
919; [1910] 2 K.B. 531; 103 L. T. 14 : fol-
lowed in Cooke v. Piickman, 81 L. J. K.B. 38:
[1911] 2 K.B. 1125.
Hurst V. Picture Theatres, Lim., 83 L. J.
K.B. 1837; [1915] 1 K.B. 1; 111 L. T. 972;
58 S. J. 739 ; 30 T. L. R. 642 : applied and
followed in Allen v. King, [1915] 2 Ir. R. 213.
Huskisson v. Lefevre, 26 Beav. 157 : con-
sidered in GosweU's Trusts, In re, 84 L. J.
Ch. 719; [1915] 2 Ch. 106; 59 S. J. 86.
Hussey v. Payne, 48 L. J. Ch. 846; 4 App.
Cas. 311 ; 41 L. T. 1 ; 27 W. R. 585 : applied
in Morrell v. Studd, 83 L. J. Ch. 114; [1913]
2 Ch. 648; 109 L. T. 628; 58 S. J. 12.
Hutchins v. Chambers, 1 Burr. 579: fol-
lowed in MacGregor v. Clamp, 83 L. J.
K.B. 240; [19141 1 K.B. 288; 109 L. T. 954;
78 J. P. 125 ; 58 S. .J. 139; 30 T. L. R. 128.
Hyam v. Terry, 29 W. R. 32: applied in
Coleman v. Smith, 81 L. J. Ch. 16; [1911]
2 Ch. 572; 28 T. L. R. 65.
Hyams v. Stuart King, 77 L. J. K.B 794 •
[1908] 2 K.B. 696; 99 L. T. 424; 24 T. L. n'.
675 : distinguished in Genforsikrings Aktiesel-
skabet (Skandinavia Re-insurance Co. of
Copenhagen) v. Da Costa, 80 L. J. K.B. 236"
[1911] 1 K.B. 137 ; 103 L. T. 767 ; 11 Asp.
M.C. 548; 16 Com. Cas. 1 ; 27 T. L. R. 43.
Hyett V. Mekin, 53 L. J. Ch. 241 ; 25 Ch D
735 ; 50 L. T. 54 ; 32 W. R. 513 : approved and
followed in Fauntleroy v. Beebe, 80 L. J Ch
654 ; [1911] 2 Ch. 257 ; 104 L. T. 704 ; 55 S. J.
497 : explained and followed in Herbert v.
Herbert, 81 L. J. Ch. 733; [1912] 2 Ch. 268.
Hyman v. Nye, 6 Q.B. D. 685; 44 L. T.
919; 45 J. P. 554 : principle of, applied in
The West Cock, 80 L. J. P. 97 : 104 L. T. 736 ;
55 S. J. 329; 27 T. L. R. 301.
I.
He's Case, Vent. 153 : discussed and applied
in Rex v. Dymock (Vicar), 84 L. J. K.B. 294;
[1915] 1 K.B. 147 ; 112 L. T. 156 ; 79 J. P. 91 ;
13 L. G. R. 48 ; 31 T. L. R. 11.
Illingworth, In re, 78 L. J. Ch. 701 : [1909]
2 Ch. 297; 101 L. T. 104; 53 S. J. 616:
discussed in S afford' s Settlement, In re,
84 L. J. Ch. 766 ; [1915] 2 Ch. 211 ; 113 L. T.
723; 59 S. J. 666; 31 T. L. R. 529.
Imperial Hydropathic Hotel Co., In re,
23 Ch. D. 1; 49 L. T. 147; 31 W. R. 330:
observations in, followed and applied in Hick-
man V. Kent or Romney Marsh Sheep
Breeders' Association. 84 L. J. Ch. 688; [1915]
1 Ch. 881 ; 113 L. T. 1-59; 59 S. J. 478.
Incandescent Gas Light Co. v. Cantelo,
12 R. P. C. 262 : approved in National Phono-
graph of Australia v. Menck, 80 L. J. P.C.
105 ; [1911] A.C. 336 ; 104 L. T. 5 ; 28 R. P. C.
229; 27 T. L. R. 239.
Incbbald v. Robinson & Harrington, L. R.
4 Ch. 388; 20 L. T. 259: discussed and
followed in Lyons v. Gulliver, 83 L. J. Ch.
281; [1914] 1 Ch. 631; 110 L. T. 284;
78 J. P. 98; 12 L. G. R. 194; 58 S. J. 97:
30 T. L. R. 75.
Incorporation of Tailors in Glasgow v.
Inland Revenue Commissioners, 14 Rettie.
729 ; 2 Tax Cas. 297 : distinguished in Grand
Lodge of Freemasons v. Inland Revenue Com-
missioners, [1912] S. C. 1064; 6 Tax Cas. 116.
Ingram & Royle v. Service Maritimes du
Treport, 83 L. J. K.B. 1128: [1914] 3 K.B.
28; 110 L. T. 967; 12 Asp. M.C. 493: dis-
tinguished in Hobson v. Leng, 83 L. J. K.B.
1624; [1914] 3 K.B. 1245; 111 L. T. 954:
59 S. J. 28; 30T. L. R. 682.
2070 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Inland Revenue v. Heywood-Lonsdale's
Trustees, 43 He. L. E. 589: not followed in
Att.-Gen. v. Milne, 82 L. J. K.B. 773; [1913]
2 K.B. 606; 108 L. T. 772; 57 S. J. 532.
Inland Revenue Commissioners v. Clay and
Buchanan, 88 L. J. K.B. 581, 1425; [1914]
1 K.B. 339 ; [1914] 3 K.B. 466 ; 110 L. T. 311 ;
111 L. T. 484; 58 S. J. 610; 30 T. L. R. 573 :
approved in Glass v. Inland Revenue, [1915]
S. C. 449.
Inland Revenue Commissioners v. Herbert,
82 L. J. P.C. 119; [1913] A.C. 326; 108 L. T.
850; 57 S. J. 516 ; 29 T. L. R. 502 : considered
in Lumsden v. Inland Revenue Commis-
sioners, 82 L. J. K.B. 1275; [1913] 3 K.B.
809; 29 T. L. R. 759.
Inland Revenue Commissioners v. Walker,
84 L. J. P.C. 115 ; [1915] A.C. 509 ; 112 L. T.
611 : discussed in Congregation of Jews v.
Inland Revenue, [1915] S. C. 997.
International Tea Co.'s Stores v. Hobbs,
72 L. J. Ch. 543; [19031 2 Ch. 165; 88 L. T.
725 ; 51 W. R. 615 : followed in Lewis v.
Meredith, 82 L. J. Ch. 255: [1913] 1 Ch. 571;
108 L. T. 549.
Irving V. Carlisle Rural Council, 5 L. G. R.
776 : applied in Masters v. Hampshire County
Council. 13 L. G. R. 879.
Irwin, In re, 73 L. J. Ch. 832; [1904]
2 Ch. 752 : followed in Monckton's Settle-
ment, In re, 83 L. J. Ch. 34; [1913] 2 Ch.
636; 109 L. T. 624; 57 S. J. 836.
Isaacs, In re, 63 L. J. Ch. 815; [1894]
3 Ch. 506; 71 L. T. 386; 42 W. R. 685:
followed in Marlay, In re; Rutland (Duke) v.
Bury, 84 L. J. Ch. 706; [1915] 2 Ch. 264;
59 S. J. 494; 31 T. L. R. 422.
Isle of Wight Railway v. Tahourdin, 53 L. J.
Ch. 353; 25 Ch. D. 320; 50 L. T. 132;
32 W. R. 297 : applied in Barron v. Potter,
83 L. J. Ch. 646 ; [1914] 1 Ch. 895 ; 110 L. T.
929 ; 21 Manson, 260 ; 58 S. J. 516 ; 30 T. L. R.
401.
Jackson v. Barry Railway, [1893] 1 Ch.
238; 68 L. T. 472 : judgment in Bowen, L.J.,
in, has not been modified by subsequent cases :
so held by Vaughan Williams, L.J., in Aird
V. Bristol Corporation , 28 T. L. R. 278.
Jackson v. De Kadich, [1904] W. N. 168:
distinguished in Hall v. Burnell, [1911] 2 Ch.
651; 105 7.. T. 409; 55 S. J. 737.
Jacob V. Down, 69 L. J. Ch. 493: [1900]
2 Ch. 156; 83 L. T. 191; 48 W. R. 441;
64 J. P. 652 : dictum of Stirling, J., in dis-
approved in Stephens v. Junior Army and
Navy Stores. 84 L. J. Ch. 56; [1914]
2 Ch. 516; 111 L. T. 1065; 58 S. J. 808;
30 T. L. R. 697.
Jacomb v. Turner, [1892] 1 Q.B. 47: dis-
cussed in Blackett V. Ridout, 84 L. J. K.B.
1535; [1915] 2 K.B. 415.
Jacubs v. Rylance, 43 L. J. Ch. 280; L. R.
17 Eq. 341 : considered in Dacre, hi re, [1915]
2 Ch. 480.
Jagger v. Jagger, 53 L. J. Ch. 201 ; 25 Ch.
D. 729; 49 L. T. 667; 32 W. R. 384: dis-
cussed and not followed in Cattell, In re,
83 L. J. Ch. 322; [1914] 1 Ch. 177 ; 110 L. T.
137 ; 58 S. J. 67.
Jakeman v. Cook, 48 L. J. Ex. 165; 4 Ex.
D. 26 : applied in Bonacina, In re; Le
Brasseur v. Bonacina, 81 L. J. Ch. 674;
[1912] 2 Ch. 394; 107 L. T. 498; 56 S. J.
667 ; 28 T. L. R. 508.
James, Ex parte; Condon, in re, 43 L. J.
Bk. 107; L. R. 9 Ch. 609; 30 L. T. 773:
discussed in Wells v. Wells, 83 L. J. P. 81;
[1914] P. 157; 111 L. T. 399; 58 S. J. 665;
30 T. L. R. 545.
James v. Buena Ventura Nitrate Grounds
Syndicate, 65 L. J. Ch. 284; [1896] 1 Ch.
456; 74 L. T. 1: applied in Llewellyn v.
Kasintoe Rubber Estates, 84 L. J. Ch. 70;
[1914] 2 Ch. 670; 112 L. T. 676; 21 Manson,
349; 58 S. J. 808; 30 T. L. R. 683.
James v. Ocean Coal Co., 73 L. J. K.B.
915; [1904] 2 K.B. 213; 90 L. T. 834;
52 W. R. 497; 68 J. P. 431; 20 T. L. R.
483 : distinguished in Bevan v. Energlyn
Colliery Co., 81 L. J. K.B. 172; [1912] 1 K.B.
63; 106 L. T. 664; 28 T. L. R. 27.
Janson v. Driefontein Consolidated Mines,
71 L. J. K.B. 857 ; [1902] A.C. 484 ; 87 L. T.
372; 51 W. R. 142; 7 Com. Cas. 268: con-
sidered in Karberg v. Blythe, Green, Jourdain
,{■ Co., 84 L. J. K.B. 1673; [1915] 2 K.B. 379;
113 L. T. 185; 31 T. L. R. 351.
Jarman v. Yye, 35 L. J. Ch. 821; L. R.
2 Eq. 784 : distinguished in Dunn v. Morgan,
84 L. J. Ch. 812; 113 L. T. 444.
Jassy, The, 75 L. J. P. 93; [1906] P. 270;
95 L. T. 363 : considered in Republic of Bolivia
Exploration Syndicate, In re, 83 L. J. Ch.
226; [1914] 1 Ch. 139; 109 L. T. 741;
110 L. T. 141 ; 58 S. J. 173 ; 30 T. L. R. 78.
Jemmett and Guest's Contract, In re,
76 L. J. Ch. 367; [1907] 1 Ch. 629 : distin-
guished in Johnson. In re, 83 L. J. Ch. 758;
[1914] 2 Ch. 134; 58 R. J. 611.
Jenkins, In re, 90 L. T. 65; 20 T. L. R.
187 : distinguished in Godding, In re; Part-
ridge, ex parte, 83 L. J. K.B. 1222; [1914]
2 K.B. 70; 110 L. T. 207; 58 S. J. 221.
Jenkins v. Comber, 67 L. J. Q.B. 780:
[1898] 2 Q.B. 168: 78 L. T. 752; 47 W. R.
48 • approved and followed in Shaw v.
Holland. 82 L. J. K.B. 592; [1913] 2 K.B. 16;
108 L. T. 543; 18 Com. Cas. 153; 29 T. L. R.
341.
Explained, Distinguished, and Commented On.
2071
Jenkins v. Price, 76 L. J. Ch. 507: [1907]
2 Ch. 229 ; 23 T. L. R. 608 : in effect over-
ruled as regards costs in West v. Gioynne,
80 L. J. Ch. 578: [19111 2 Ch. 1 ; 104 L. T.
759; 55 S. J. 519: 27 T. L. R. 444.
Jenkins v. Robertson, 23 L. J. Ch. 816:
2 Drew. 351 : followed in Debtor (No. 14
of 1913), hi re, 82 L. J. K.B. 907: [1913]
3 K.B. 11: 109 L. T. 323; 20 Manson, 119;
57 S. J. 579.
Jennes, In re, 53 S. J. 376: ratio decidendi
in, applied in Olpherts v. Coryton (No. 1),
[1913] 1 Ir. R. 211 : opinion, but not decision,
of Neville, J., in, followed in Harris. In re;
Davis V. Harris, 83 L. J. Ch. 841
2 Ch. 395; 58 S. J. 653.
Jones, In re, 55 L. J. Ch. 350: 31 Ch. D.
440 ; 53 L. T. 855 ; 34 W. R. 249 : not followed
in Harris, In re; Davis v. Harris, 83 L. J.
Ch. 841 ; [19141 2 Ch. 395 ; 58 S. J. 653 : not
followed in Olpherts v. Coryton (No. 1), [1913]
1 Ir. R. 211.
Jones V. Evans, 45 L. J. Ch. 751 ; 2 Ch. D.
420; 24 W. R. 778: distinguished in Harris.
In re: Davis v. Harris, 83 L. J. Ch. 841:
[1914] 2 Ch. 395 ; 58 S. J. 653.
Jones V. Jones, 79 L. J. K.B. 762; [1910]
2 K.B. 262; 103 L. T. 41; 74 J. P. 317;
26 T. L. R. 497 : followed in Atkins v. Agar,
83 L. J. K.B. 265; [1914] 1 K.B. 26;
[1914] I 109 L. T. 891; 78 J. P. 7 : 23 Cox C.C. 677;
'30 T. L. R. 27.
Jerningham v. Herbert, 6 L. J. (o.s.) Ch.
134; 4 Russ. 388 : applied in Hoyles, In re;
Row V. Jagg, 80 L. J. Ch. 274; [1911] 1 Ch.
179; 103 L. T. 817; 55 S. J. 169; 27 T. L. R.
131.
JerYis V. Wolferstan, 43 L. J. Ch. 809;
L. R. 18 Eq. 18; 30 L. T. 452 : applied in
Matthews v. Buggies Brise, 80 L. J. Ch. 42;
[1911] 1 Ch. 194; 103 L. T. 491.
Jesson V. Wright, 2 Bligh, 1, 57: applied
in Simcoe, In re; Vowler-Simcoe v. Vowler,
82 L. J. Ch. 270; [19131 1 Ch. 552; 108 L. T.
891 ; 57 S. J. 533.
Johnson v. Kearley, 77 L. J. K.B. 904:
[1908] 2 K.B. 514; 99 L. T. 506; 24 T. L. R.
729 : distinguished in Aston v. Kelsey, 82 L. J.
K.B. 817; [1913] 3 K.B. 314; 108 L. T. 750;
18 «om. Cas. 257 ; 29 T. L. R. 530.
Johnson v. Lyttle's Iron Agency, 46 L. J.
Ch. 786 ; 5 Ch. D. 687 ; 36 L. T. 528 ; 25 W. R.
548 : observations in, followed and applied in
Hickman v. Kent or Romney Marsh Sheep
Breeders' Association, 84 L. J. Ch. 688; [1915]
1 Ch. 881 ; 113 L. T. 159 ; 59 S. J. 478.
Johnson v. Regem, 73 L. J. P.C. 113;
[1904] A.C. 817; 91 L. T. 234; 20 T. L. R.
697 : applied in Vaithinatha Pillai v. Regem,
29 T. L. R. 709.
Johnson v. Stear, 33 L. J. C.P. 130: 15 C.B.
(N.s.) 330; 10 Jur. N.S. 99; 9 L. T. 538;
12 W. R. 347 : applied in Belsize Motor Supply
Co. V. Cox, 83 L. J. K.B. 261; [1914] 1 K.B.
244 ; 110 L. T. 151.
Jolly V. Kine, 76 L. J. Ch. 1 ; [1907] A.C. 1 :
95 1j. T. 656 : 23 T. L. R. 1 : discussed and
explained in Paul v. Robson, 83 L. J. P.C.
304 ; L. R. 41 Ind. App. 180 ; 30 T. L. R. 533 :
observations of Lord Atkinson in, considered
in Davis v. Marrable, 82 L. J. Ch. 510;
[1913] 2 Ch. 421 ; 109 L. T. 33; 57 S. J. 702;
29 T. L. R. 617.
Jones V. Jones, 58 J. P. 653; 10 T. L. R.
300 : dissented from in Batchelour v. Gee,
83 L. J. K.B. 1714; [19141 3 K.B. 242;
111 L. T. 256; 78 J. P. 362; 12 L. G. R. 931;
24 Cox C.C. 268; 30 T. L. R 506 : followed
in Clifford v. Battley, 84 L. J. K.B. 615;
[1915] 1 K.B. 531; 112 L. T. 765: 79 J. P.
180; 13 L. G. R. 505; 31 T. L. R. 117.
Jones V. New Brynmally Colliery Co.,
106 L. T. 524; [1912] W.C. Rep. 281:
followed in Garnant Anthracite Collieries v.
Rees, 81 L. J. K.B. 1189; [19121 3 K.B. 372;
107 L. T. 279.
Jones V. Phipps, 37 L. J. Q.B. 198: L. R.
3 Q.B. 567 : explained in Stait v. Fenner,
81 L. J. Ch. 710; [1912] 2 Ch. 504; 107 L. T.
120; 56 S. J. 669.
Jones V. Pritchard, 77 L. J. Ch. 405 :
[1908] 1 Ch. 630: 98 L. T. 386; 24 T. L. R.
309 : distinguished in PwUbach Colliery Co. v.
Woodman, 84 L. J. K.B. 874; [1915] A.C.
634; 113 L. T. 10; 31 T. L. R. 271.
Jones V. Selby, Pr. Ch. 300: followed in
Wasserberg, In re, 84 L. J. Ch. 214; [1915]
1 Ch. 195: 112 L. T. 242: 59 S. J. 176.
Jones v. Victoria Graving Dock Co., 46 L. J.
Q.B. 219; 2 Q.B. D. 314; 36 L. T. 347;
25 W. R. 501 : followed in Daniels v. Trefusis,
83 L. J. Ch. 579; [1914] 1 Ch. 788; 109 L. T.
922; 58 S. J. 271.
Joseph V. Law Integrity Insurance Co.,
82 L. J. Ch. 187 ; [19121 2 Ch. .581; 107 L. T.
538; [1913] W.C. & I. Rep. 337; 20 Manson,
85 : approved in Gould v. Curtis, 82 L. J.
K.B. 802; [1913] 3 K.B. 84; 108 L. T. 779:
57 S. J. 461 : 29 T. L. R. 469.
Julius V. Oxford (Bishop), 49 L. ,T. Q.B.
577; 5 App. Cas. 214; 42 L. T. 546; 28 W. R.
726 : 44 J. P. 600 : followed in Rex v. Mitchell ;
Live.fey, Ex parte, 82 L. J. K.B. 153; [1913]
1 K.B. 561; 108 L. T. 76; 77 J. P. 148;
23 Cox C.C. 273; 29 T. L. R. 157.
2072 Cases Followed, Not Followed, x\pproved, Overruled, Questioned,
Juno, The, 112 L. T. 471; 59 S. J. 251;
31 T. L. R. 131 : applied in The loh, 59 S. J.
545; 31 T. L. R. 474.
Jureidini v. National British and Irish
Millers Insurance Co., 84 L. J. K.B. 640;
[1915] A.C. 499; [1915] W.C. & I. Rep.
239 ; 112 L. T. 531 ; 59 S. J. 205 ; 31 T. L. R.
132 : considered in Wall v. Rederiaktiebolaget
Luggude, 84 L. J. K.B. 1663; [1915] 3 K.B.
66; 31 T. L. R. 487.
Jupp, In re; Jupp v. Buckwell, 57 L. J.
Ch. 774; 39 Ch. D. 148; 59 L. T. 129;
36 W. R. 712 : distinguished in Jeffery, In re;
Nussey v. Jeffery, 83 L. J. Cli. 251; [1914]
1 Ch. 375; 110 L. T. 11; 58 S. J. 120.
Juson V. Dixon, 1 M. & S. 601 : followed in
Eastwood V. McNab, 83 L. J. K.B. 941;
[1914] 2 K.B. 361 ; 110 L. T. 701 ; 12 L. G. R.
517 : and applied in MacGregor v. Clamp,
83 L. J. K.B. 240; [1914] 1 K.B. 288;
109 L. T. 954; 78 J. P. 125; 58 S. J. 139;
30 T. L. R. 128.
Kaufman v. Gerson, 73 L. J. K.B. 320;
[1904] 1 K.B. 591 ; 90 L. T. 608 ; 52 W. R. 420 ;
20 T. L. R. 277 : applied in Societe des Hotel
Reunis v. Hawker, 29 T. L. R. 578.
Kavanagh v. Workingman's Benefit Build-
ing Society, [1896] 1 Ir. R. 56 : disapproved
by Cozens-Hardy, M.R., and Buckley, L.J.,
but approved by Fletcher Moulton, L.J., in
Bath V. Standard Land Co., 80 L. J. Ch. 426;
[1911] 1 Ch. 618; 104 L. T. 867; 55 S. J. 482;
27 T. L. R. 393.
Kay, In re; Moseley v. Keyworth or Kay,
66 L. J. Ch. 759; [1897] 2 Ch. 518; 46 W. R.
74: applied in Allsop, In re; Whittaker v.
Bamford, 83 L. J. Ch. 42; [1914] 1 Ch. 1;
109 L. T. 641; 58 S. J. 9 ; 30 T. L. R. 18.
Kay V. Kay, 73 L. J. P. 108; [1904] P. 382;
91 L. T. 360; 20 T. L. R. 521: approved in
Stevenson v. Stevenson, 80 L. J. P. 137 ;
[1911] P. 191; 27 T. L. R. 547.
Kaye v. Croydon Tramways Co., 67 L. J.
Ch. 222; [1898] 1 Ch. 358; 78 L. T. 237;
46 W. R. 405 : considered and applied in
Baillie v. Oriental Telephone, dc, Co., 84 L. J.
Ch. 409; [1915] 1 Ch. 503; 112 L. T. 569;
31 T. L. R. 140.
Keane's Estate, In re, [1903] 1 Ir. R. 215 ;
followed and applied in Simcoe, In re; Vowler-
Simcoe v. Voider, 82 L. J. Ch. 270; [1913]
1 Ch. 552; 108 L. T. 891; 57 S. J. 533.
Kearsley v. Philips, 52 L. J. Q.B. 269;
10 Q.B. D. 30, 465; 48 L. T. 468; 31 W. R.
467 : followed in Coomes v. Hayward, 82 L. J.
K.B. 117; [1913] 1 K.B. 150; 107 L. T. 715 :
distinguished in Forbes v. Samuel, 82 L. J.
K.B. 1135; [1913] 3 K.B. 706; 109 L. T. 599.
Keene v. Thomas, 74 L. J. K.B. 21 ; [1905]
1 K.B. 136; 92 L. T. 19; 53 W. R. 336';
21 T. L. R. 2 : distinguished in Cassils & Co.
V. Holden Wood Bleaching Co., 84 L. J. K.B.
834; 112 L. T. 373.
Kemble v. Farren, 6 Bing. 141 : dictum of
Tindal, C.J., in, approved in Dunlop Pneumatic
Tyre Co. v. New Garage and Motor Co.,
83 L. J. K.B. 1574 ; [1915] A.C. 79 ; 111 L. T.
862; 30 T. L. R. 625.
Kemp-Welch v. Kemp-Welch, 79 L. J. P.
92 ; [1910] P. 233 ; 102 L. T. 787 ; 26 T. L. R.
464 : principle of, applied in Sanders v.
Sanders, 80 L. J. P. 44; [1911] P. 101;
104 L. T. 231 ; 55 S. J. 312.
Kent V. Fittall, 81 L. J. K.B. 82; [1911]
2 K.B. 1102; 105 L. T. 422; 9 L. G. R. 999;
75 J. P. 378; 2 Smith, 279; 55 S. J. 687;
27 T. L. R. 564 : followed in Havercroft v.
Dewey, 108 L. T. 296; 77 J. P. 115;
II L. G. R. 28; 2 Smith, 393; 29 T. L. R. 62.
Kent v. Fittall, 81 L. J. K.B. 82; [1911]
2 K.B. 1102; 103 L. T. 668; 9 L. G. R. 27
75 J. P. 113; 2 Smith, 279; 27 T. L. R. 79
distinguished in Smith v. Newman, 81 L. J
K.B. 183; [1912] 1 K.B. 162; 105 L. T. 631
9 L. G. R. 1254; 76 J. P. 25 ; 2 Smith, 327
56 S. J. 16;28T. L. R. 19.
Kent Coal Concessions v. Duguid, 79 L. J.
K.B. 423, 872; [1910] 1 K.B. 704; [1910]
A.C. 452 : distinguished in Irish Agricultural
WJiolesale Society v. McCowan, [1913]
2 Ir. R. 313.
Kenward, In re ; Hammond v. Eade, 94 L. T.
277 : distinguished in Hay, In re; Stanley
Gibbons, Litn. v. Hay, 84 L. J. Ch. 821;
[1915] 2 Ch. 198; 59 S. J. 680.
Kepitigalla Rubber Estates v. National
Bank of India, 78 L. J. K.B. 964; [1909J
2 K.B. 1010; 100 L. T. 516; 16 Manson, 234;
14 Com. Cas. 116; 53 S. J. 377; 25 T. L. R.
402 : followed in Walker \. Manchester and
Liverpool District Banking Co., 108 L. T. 728;
29 T. L. R. 492; 57 S.J. 478.
Kerr {or Lendrum) v. Ayr Steam Shipping
Co., 84 L. J. P.C. 1; [1915] A.C. 217;
III L. T. 875; [1914] W.C. & I. Rep. 438;
58 S. J. 737 ; 30 T. L. R. 664 : applied in
Proctor V. " Serbino " (Owners), 84 L. J. K.B.
1381; [1915] 3 K.B. 344; [1915] W.C.
& I. Rep. 425; 113 L. T. 640; 59 S. J. 629:
31 T. L. R. 524.
Kerr v. Baird, [1911] S. C. 701: distin-
guished in Smith v. Fife Coal Co., 83 L. J.
P.C. 359; [1914] A.C. 723; 68 S. J. 533;
30 T. L. R. 502.
Kerr v. Baird & Co., [1911] S. C. 701 : fol-
lowed in Burns v. Summerlee Iron Co., [1913]
S. C. 227; [1913] W.C. & I. Rep. 45.
Key (or Kay) v. Goodwin, 8 L. J. (o.s.)
C.P. 212 ; 6 Bing. 576 : considered in Lemm v.
Mitchell, 81 L. J. P.C. 173; [1912] A.C. 400:
106 L. T. 359; 28 T. L. R. 282.
Explained, Distinguished, and Commented Ox.
2073
Khedive, The, 5 P. D. 1 : 41 L. T. 392;
28 W. R. 364 : distinguished in Manks v.
Whiteley, 82 L. J. Ch. 267 ; [1913] 1 Ch. 581 ;
108 L. T. 450; 57 8. J. 391.
Kidson v. Turner, 27 L. J. Ex. 492; 3 H. &
N. 581 : distinguished in Bonacina, In re,
81 L. J. Ch. 674; [1912] 2 Ch. 394; 107 L. T.
498; 56 S. J. 667 ; 28 T. L. R. 508.
Kimberley v. Tew, 4 Dr. & W. 1.39: opinion
of Sir E. Sugden in, followed in Firth, In re;
Loveridge v. Firth, 83 L. J. Ch. 901; [1914]
2 Ch. 386; 111 L. T. 332.
Kingan v. Matier, [1905] 1 Ir. R. 272: not
followed in Leigh-White v. Ruttledge, [1914]
1 Ir. R. 135.
Kingston Cotton Mill Co. (No. 2), In re,
65 L. J. Ch. 673; [1896] 2 Ch. 279; 74 L. T.
568; 3 Manson, 171 : discussed in Republic of
Bolivia Exploration Syndicate, 7n re, 83 L. J.
Ch. 235; [1914] 1 Ch. 139; 110 L. T. 141;
21 Manson, 67 ; 58 S. J. 321; 30 T. L. R. 146.
Kinnoul (Earl) v. Money, 3 Swanst. 202n.
at p. 208?!. : was not overruled by or dis-
sented from by Lindley, L.J., in Paget v.
Paget (67 L. J. Ch. 266, at p. 270; [1898]
1 Ch. 470, at pp. 474, 475) : so held in Hall v.
Hall, 80 L. J. Ch. 340; [1911] 1 Ch. 487;
104 L. T. 529.
Kirk V. Eddowes, 13 L. J. Ch. 402; 3 Hare,
509 : considered in Shields, In re; Corbould-
Ellis V. Dales, 81 L. J. Ch. 370; [1912] 1 Ch.
591 ; 106 L. T. 748.
Kirkland v. Peatfield, 72 L. J. K.B. 355;
[1903] 1 K.B. 756; 88 L. T. 472; 51 W. R.
544: followed in Fox, In re; Brooks v.
Marston, 83 L. J. Ch. 393; [1913] 2 Ch. 75;
108 L. T. 948.
Kirkpatrick v. King, 32 Ir. L. T. R. 41:
distinguished in Gray v. Gray, [1915] 1 Ir. R.
261.
Kirkwood v. Gadd, 79 L. J. K.B. 815;
[1910] A.C. 422; 102 L. T. 753; 54 S. J. 699;
26 T. L. R. 530 : dicta in, explained and
distinguished in Hadsley v. Dayer-Smiih,
83 L. J. Ch. 770; [1914] A.C. 97C ; 58 S. J.
554; 80 T. L. R. 524.
Knight V. Halliwell, 43 L. J. M.C; 113;
L. R. 9 Q.B. 412 ; 30 T. L. R. 359 : judgment
of Blackburn, J., in, followed in Kates v.
Jeijery, 83 L. J. K.B. 1760; [1914] 3 K.B.
160; ill L. T. 459; 78 J. P. 310.
Knight V. Simmonds, 65 L. J. Ch. 583;
[1896] 2 Ch. 294 ; 74 L. T. 563; 44 W. R. 580:
observations of Lindley, L.J., in, applied in
Sohey v. Sainshury. 83 L. J. Ch. 103; [1913]
2 Ch. 513; 109 L. T. 393; 57 S. J. 836.
Knight of St. Michael, The, 67 L. J. P. 19:
[1898] P. 30; 78 L. T. 90; 46 W. R. 396;
8 Asp. M.C. 360 : distinguished in Kacianoff
V. China Traders Insurance Co., 83 L. J. K.B.
1393; [1914] 3 K.B. 1121; 111 L. T. 407;
80 T. L. R. 546.
Knox V. Gye, 42 L. J. Ch. 234 ; L. R. 5 H.L.
656 : distinguished in Gordon v. Holland,
82 L. J. P.C. 81; 108 L. T. 385.
Kolchmann v. Meurice, 72 L. J. K.B. 209;
[1903] 1 K.B. 534 ; 88 L. T. 369 ; 51 W. R.
356 : followed in Hughes v. Oxenh-am, 82 L. J.
Ch. 155 ; [1913] 1 Ch. 254 ; 108 L. T. 316.
Kriegel, In re ; Trotman, ex parte, 68 L. T.
588; 10 Morrell, 99 : followed in Barker £ Co.,
In re, 21 Manson, 238.
Lacon's Settlement, In re, 80 L. J. Ch.
302, 610; [1911] 1 Ch. 351; [1911] 2 Ch. 17;
104 L. T. 840 ; 55 S. J. 551 ; 27 T. L. R. 485 :
considered in Pyke, hi re; Birnstingl v.
Birnstingl, 81 L. J. Ch. 495: [1912] 1 Ch.
770; 106 L. T. 751 ; 56 S. J. 380 : followed in
Dealtry, In re, 108 L. T. 832.
Lacons v. Warmoll, 76 L. J. K.B. 914;
[1907] 2 K.B. 350; 97 L. T. 379; 23 T. L. R.
495 : dictum of Fletcher Moulton, L.J., in,
approved in Bloiv, In re; St. Bartholomew's
Hospital (Governors) v. Camhden, 83 L. J.
Ch. 185; [1914] 1 Ch. 233; 109 L. T. 913;
58 S. J. 136; 30 T. L. R. 117.
Laing v. Hollway, 47 L. .J. Q.B. 512;
3 Q.B. D. 437 ; 26 W. R. 769 : considered and
discussed in Maicson Shipping Co. v. Beyer,
83 L. J. K.B. 290; [1914] 1 K.B. 304;
109 L. T. 973; 19 Com. Cas. 59.
Lainson v. Lainson (No. 2), 18 Beav. 7:
followed in Salvin, In re; Worsley v. Marshall,
81 L. J. Ch. 248; [1912] 1 Ch. 332; 106 L. T.
35 ; 56 S. J. 241 ; 28 T. L. R. 190.
Lamb v. Evans, 62 L. J. Ch. 404; [1893]
1 Ch. 218; 68 L. T. 131; 41 W. R. 405:
considered in Amber Size and Chemical Co. v.
Menzel, 82 L. J. Ch. 573; [1913] 2 Ch. 239:
applied in Ashburton v. Pape, 82 L. J. Ch.
527; [1913] 2 Ch. 469; 109 L. T. 381.
Lambert, In re, 27 L. T. 597 : applied in
Slater, In re, 113 L. T. 691.
Lambert, In re; Corns v. Harrison, 77 L.J.
Ch. 5.53: [19(i8] 2 Ch. 117; 98 L. T. 851:
followed in Williams, In re; Metcalf v.
Williams. 83 L. J. Ch. 570; [1914] 2 Ch. 61;
110 L. T. 923; 58 S. J. 470.
67
2074 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Lambert, In re; Moore v. Middleton,
66 L. J. Ch. 624; [1897] 2 Ch. 169; 76 L. T.
752; 45 W. R. 661: dictum in, queried by
Bucklev. L.J., in Willoughby, In re, 80 L. J.
€h. 562; [1911] 2 Ch. 581; 104 L. T. 907.
Lambert v. Lambert, 43 L. J. Ch. 106:
li. T. 16 Eq. 320; 21 W. R. 748 : observed
upon in McEuen, In re, [1913] 2 Ch. 704.
Lambeth Overseers v. London County
Council, 66 L. J. Q.B. 806: [1897] A.C. 625;
76 L. T. 795 ; 46 W. R. 79-; 61 J. P. 580 :
distinguished in Glasgow Parish Comicil v.
Glasgow Assessor, [1912] S. C. 818.
Lancaster v. Elce, 31 L. J. Ch. 789;
31 Beav. 325 : distinguished in PileVs Deed,
In re; Toursier d Co., ex parte, 84 L. J.
K.B. 2133; 31 T. L. R. 558.
Landauer v. Asser, 74 L. J. K.B. 659;
[1905] 2 K.B. 184; 93 L. T. 20 ; 53 W. R. 534;
10 Com. Cas. 265; 21 T. L. R. 529 : distin-
guished in Strass v. SpiUers d- Bakers, 80 L. J.
K.B. 1218; [1911] 2 K.B. 759: 104 L. T. 284;
16 Com. Cas. 166.
Lander v. Lander, 60 L. J. P. 65; [1891]
P. 101; 64 L. T. 120; 39 W. R. 416; 55 J. P.
152 : not followed in OUier v. Oilier, 58 S. J.
754.
Langdale v. Mason, Park on Insurance
(7th ed.), p. 657 : definition of "civil commo-
tion "in, adopted in London and Manchester
Plate-Glass Insurance Co. v. Heath, 82 L. J.
K.B. 1183 : [1913] 3 K.B. 411 ; 108 L. T. 1009 ;
29 T. L. R. 581.
Lapington v. Lapington, 58 L. J. P. 26:
14 P. D. 21; 59 L. T. 608; 37 W. R. 384 :
approved in Stevenson v. Stevenson, 80 L. J.
P. 137 ; [1911] P. 191 ; 27 T. L. R. 547.
Lassence v. Tierney, 1 Mac. & G. 551 :
applied in ConneU's Settlement, In Te,84L. J.
Ch. 601; [1915] 1 Ch. 867.
Lawes v. Bennett, 1 Cox, 167 : explained in
Marlay, In re; Rutland (Duke) v. Bury,
84 L. J. Ch. 706; [1915] 2 Ch. 264; 59 S. J.
494 ; 31 T. L. R. 422.
Lawford v. Billericay Rural Council,
72 L. J. K.B. 554; [1903] 1 K.B. 772;
88 L. T. 317; 51 W. R. 630; 67 J. P. 245:
1 L. G. R. 535 : followed in Douglass v. Rhyl
Urban Council, 82 L. J. Ch. 537 ; [1913] 2 Ch.
407: 109 L. T. 30; 57 S. J. 627; 29 T. L. R.
605.
Lawson v. Wright, 1 Cox, 275: explained in
Stirling v. Burdett, [1911] 2 Ch. 418;
105 L. T. 573.
Lawson's Trusts, In re, 65 L. J. Ch. 95:
[1896] 1 Ch. 175; 73 L. T. 571; 44 W. R.
280: followed in Anderson, In re; New
Zealand Official Assignee, ex parte, 80 L. J.
K.B. 919; [1911] 1 K.B. 896; 104 L. T. 221.
Laybourn v. Gridley, 61 L. J. Ch. 352;
[1892] 2 Ch. 53; 40 \V. R. 274 : is not incon-
sistent with Williams v. Pott (40 L. J. Ch.
775 ; L. R. 12 Eq. 149) : so held in Mitchell v.
Mosley, 83 L. J. Ch. 135; [1914] 1 Ch. 438:
109 L. T. 648; 58 S. J. 218; 30 T. L. R. 29.
Lea, Lim., In re, 81 L. J. Ch. 489: [1912"^
2 Ch. .32; 106 L. T. 410: 29 R. P. C. 165:
56 S. J. 308; 28 T. L. R. 2.58 : point in, over-
ruled in Teofani d Co.'s Trade Mark, In re,
82 L. J. Ch. 490; [1913] 2 Ch. 545: 109 L. T.
114 ; 30 R. P. C. 446 ; 57 S. J. 686 ; 29 T. L. R.
591, 674.
Lea V. Facey, 55 L. J. Q.B. 371 ; 56 L. J.
Q.B. 536; 17 Q.B. D. 139; 19 Q.B. D. 352:
distinguished in Douglass v. Rhyl Urban
Council, 82 L. J. Ch. 537 ; [1913] 2 Ch. 407 ;
109 L. T. 30 ; 57 S. J. 627 ; 29 T. L. R. 605.
Leahy v. De Moleyns, [1896] 1 Ir. R. 206:
considered and distinguished m Eustace , In re;
Lee V. McMillan, 81 L. J. Ch. 529; [1912]
1 Ch. 561; 106 L. T. 789; 56 S. J. 468.
Le Blanche v. London and North- Western
Railway, 45 L. J. C.P. 521: 1 C.P. D. 286:
34 L. T. 667 ; 24 W. R. 808 : approved in
Erie County Natural Gas lic. Co. v. Carroll,
80 L. J. P.C. 59 ; [1911] A.C. 105 : 103 L. T.
678.
Le Brasseur and Oakley, In re; Turrell,
ex parte, 65 L. J. Ch. 763; [1896] 2 Ch. 487;
74 L. T. 717 ; 45 W. R. 87 : adopted in Harben
V. Gordon, 83 L. J. K.B. 322; [1914] 2 K.B.
577; 109 L. T. 794; 58 S. J. 140.
Leconfield, In re, 20 T. L. R. 347 : followed
in Swaythling, In re, 57 S. J. 173; 29 T. L. R.
Lee V. Butler, 62 L. J. Q.B. 591; [1893]
2 Q.B. 318; 69 L. T. 370; 42 W. R. 88 : con-
sidered in Belsize Motor Supply Co. v. Cox,
83 L. J. K.B. 261: [1914] 1 K.B. 244;
110 L. T. 151.
Lee V. Sangster, 26 L. J. C.P. 151; 2 C.B.
(n.s.) 1 : applied in Branson, In re, 83 L. J.
K.B. 1316 : [1914] 2 K.B. 701 ; 110 L. T. 940;
58 S. J. 416.
Leeds Estate Building and Investment Co.
V. Shepherd, 57 L. J. Ch. 46: 36 Ch. D. 787;
57 L. T. 684: 36 W. R. 322: discussed in
Republic of Bolivia Exploration Syndicate,
Lim., 83 L. J. Ch. 235; [1914] 1 Ch. 139;
110 L. T. 141; 21 Manson, 67; 58 S. J. 321;
30 T. L. R. 146.
Leeds and Hanley Theatres of Varieties,
In re, 73 L. J. Ch. 553; [19041 2 Ch. 45;
52 W. R. 506 : distinguished in Peruvian
Railway Constructioit Co., In re, [1915] 2 Ch.
144; 59 S. J. 579; 31 T. L. R. 464.
Legge V. Croker, 1 Ball & B. 506 : followed
in Angel v. Jay, 80 L. J. K.B. 458; [1911]
1 K.B. 666; 103 L. T. 809; 55 S. J. 140.
I
Explained, Distinguished, and Commented On.
2075
Leggett V. Barrett, 15 Ch. D. 306; 43 L. T.
641 : considered and applied in Millhoiirn V.
Lyons, 83 L. J. Ch. 737: [1914] 2 Ch. 231;
111 L. T. 388; 58 S. J. 578.
Leigh Urban Council v. King, 70 L. J.
K.B. 313; [1901] 1 K.B. 747; 83 L. T. 777;
65 J. P. 243 : disapproved in Cababe v.
Walto7i-upon-Tliames Urban Council, 83 L. J.
K.B. 243; [1914] A.C. 102; 110 L. T. 674;
78 J. P. 129; 12 L. G. E. 104; 58 S. J. 270.
Leith Dock Commissioners v. Leith Magis-
trates, [1911] S. C. 1139 : followed in
Christie v. Leven Magistrates, [1912] S. C.
678.
Leonard v. Hoare, 83 L. J. K.B. 1361;
[1914] 2 K.B. 798; 111 L. T. 69; 78 J. P.
287 ; 12 L. G. R. 844 ; 30 T. L. R. 425 :
overruled in Rex v. Foots Cray Urban Coun-
cil, 85 L. J. K.B. 191 ; 113 L. T. 705 ; 79 J. P.
521 ; 13 L. G. R. 1027 ; 59 S. J. 597.
Leonis s.s. Co. v. Rank (No. 2), 13 Com.
Gas. 295 : followed in Moore Line v. Distillers'
Co., [1912] S. C. 514.
Leslie, In re; Leslie v. French, 52 L. J.
Ch. 762; 23 Ch. D. 552 : discussed in Jones'
Settlement, In re, 84 L. J. Ch. 406; [1915]
1 Ch. 373; [1915] W.C. & I. Rep. 277;
112 L. T. 1067 ; 59 S. J. 364.
Leslie v. Leslie, LI. & G. 1 : distinguished
in West, In re; Westhead v. Aspland, 82 L. J.
Ch. 488 ; [1913] 2 Ch. 345 ; 109 L. T. 39.
Leslie & Co. v. Metropolitan Asylums Dis-
trict Managers, 68 J. P. 86: approved in
Hampton v. Glamorgan County Council,
84 L. J. K.B. 1506; 113 L.' T. 112;
13 L. G. R. 819.
Lester v. Torrens, 46 L. J. M.C. 280:
2 Q.B. D. 403 ; 25 W. R. 691 : followed in
Young v. Gentle, 84 L. J. K.B. 1570; [1915]
2 K.B. 661 ; 79 J. P. 347 ; 31 T. L. R. 409.
Lewis V. Great Western Railway, 47 L. J.
Q.B. 131 ; 3 Q.B. D. 195 : douhted in Bastable
V. North British Railway, [1912] S. C. 555.
Lewis v. Puxley, 16 L. J. Ex. 216; 16 M.
& W. 733 : applied in Finlay's Estate, In re,
[1913] 1 Ir. R. 143.
Lewis v. Templer, 33 Beav. 625 : distin-
guished in Firth, In re; Loveridge v. Firth,
83 L. J. Ch. 901; [1914] 2 Ch. 386; 111 L. T.
332.
Leyman v. Latimer, 47 L. J. Q.B. 470:
3 Ex. D. 352 : as followed in Yates v. Kyffin
Taylor, [1899] W. N. 141 : doubted in
Crippen, In re, 80 L. J. P. 47; [1911] P. 108;
104 Ti. T. 224: 55 S. J. 273: 27 T. T.. R. 258.
Liles V. Terry, 65 L. J. Q.B. 34: [1895]
2 Q.B. 679: 73 L. T. 428; 44 \V. R. 116 :
applied in Lloyd v. Coote <f Ball, 84 L. J.
K.B. 567; [1915] 1 K.B. 242; 112 L. T. 344.
Limpus V. Arnold, 54 L. J. Q.B. 85:
15 Q.B. D. 300; 33 W. R. 537 : considered in
Warde, In re; Warde v. Ridgway, 111 L. T.
35; 58 S. J. 472.
Limpus v. Arnold, 53 L. J. Q.B. 415;
54 L. J. Q.B. 85; 13 Q.B. D. 246; 15 Q.B. D.
300 : dicta in, followed in Trollope, In re,
84 L. J. Ch. 553; [1915] 1 Ch. 853; 113 L. T.
153.
Lines v. Usher, 14 R. P. C. 206: followed
in Cummiugs v. Stewart, [1913] 1 Ir. R. 95.
Linoleum Manufacturing Co. v. Nairn,
47 L. J. Ch. 430; 7 Ch. D. 834; 38 L. T. 448 :
distinguished in Brock v. Pain, 105 L. T. 976;
28 R. P. C. 697.
Linotype Co.'s Trade Mark, In re, 69 L. J.
Ch. 625; [1900] 2 Ch. 238; 82 L. T. 794:
followed in La Societe le Ferment's Applica-
tion, In re, 81 L. J. Ch. 724; 107 L. T. 515;
28 T. L. R. 490; 29 R. P. C. 497.
Linton v. Linton, 54 L. J. Q.B. 529:
15 Q.B. D. 239 ; 52 L. T. 782 : distinguished
in Victor v. Victor, 81 L. J. K.B. 354; [1912]
1 K.B. 247; 105 L. T. 887; 19 Manson, 53;
56 S. J. 204; 28 T. L. R. 131.
Lister v. Lane, 62 L. J. Q.B. 583; [18931
2 Q.B. 212; 69 L. T. 176; 41 W. R. 626;
57 J. P. 725 : explained and distinguished in
Lurcott V. Wakeley, 80 L. J. K.B. 713; [1911]
1 K.B. 905 ; 104 L. T. 290 ; 55 S. J. 290.
Litchfield v. Jones, 25 Ch. D. 64; 32 W. R.
288 : discussed in Taylor v. Plinston, [1911]
2 Ch. 605; 105 L. T. 615; 56 P. J. 33;
28 T. L. R. 11.
Little V. Kingswood and Parkfield Collieries
Co., 51 L. J. Ch. 498; 20 Ch. D. 733: decision
of Hall, V.C., in, not followed in Rakusen
V. Ellis, Munday d- Clarke, 81 L. J. Cb.
409; [1912] 1 Ch. 831; 106 L. T. 556;
28 T. L. R. 326.
Liverpool Household Stores Association, In
re, [1889] W. N. 48: practice laid down by
Kckewich, J., in, followed in Foss, Bilbrough,
Plaskitt ,(■ Foss, In re, 81 L. J. Ch. 558;
[1912] 2 Ch. 161 ; 106 L. T. 835 ; 56 S. J. 574.
Livingstone v. Ross, 70 L. J. P.C. 58:
[1901] A.C. 327; 85 L. T. 382 : distinguished
in Kelly v. Enderton, 82 L. J. P.C. 57 ; [1913]
A.C. 191; 107 L. T. 781.
Llanelly Railway and Dock Co. v. London
and North-Western Railway, 45 L. J. Ch.
539; L. R. 7 H.L. 550: 32 L. T. 575 ; 23 W. R.
927 : distinguished in Lindrea, In re; Lindrea
V. Fletcher, 109 L. T. 623.
2076 Cases Followed, Not Followed, Approved, Overkuled, Questioned,
Llangattock (Lord) v. Watney, Combe,
Reid & Co., 7U L. J. K.B. 50',): [1910 j A.C.
394; 10-2 L. T. 548; 74 J. P. 194; 54 S. J.
456; 26 T. L. R. 418 : followed in Knight v.
City of London Breicery Co., 81 L. J. K.B.
194; [1912] 1 K.B. 10; 106 L. T. 564.
Llanover (Baroness), In re ; Herbert v. Ram,
[1907] 1 Ch. 1)35 : the semble in the headnote
to, questioned in Sumner's Settled Estates,
In re, 80 L. J. Ch. 257; [1911] 1 Ch. 315;
103 L. T. 897; 55 S. J. 155; 27 T. L. R. 173.
Llewellyn, In re, 80 L. J. Ch. 259; [1911]
1 Ch. 451; 104 L. T. 279; 55 S. J. 254 : fol-
lowed in Beauchamp's Trusts, In re; Cadge v.
Barker-Hahlo, 83 L. J. Ch. 440; [1914] 1 Ch.
676 ; 110 L. T. 814 ; 58 S. J. 320.
Lloyd & North London Railway, In re,
65 L. J. Ch. 626: [1896] 2 Ch. 397; 74 L. T.
548 ; 44 W. R. 522 : approved and followed in
Griggs, In re; London School Board, ex parte,
83 L. J. Ch. 835; [1914] 2 Ch. 547 ; 111 L. T.
931 ; 13 L. G. R. 27 ; 58 S. J. 796.
London and County Banking Co. v. London
and River Plate Bank, 57 L. J. Q.B. 601:
21 Q.B. D. 535 : applied in Lloyds Bank v.
Swiss Bankverein, 17 Com. Cas. 280; 56 S. J.
688; 28 T. L. R. 501.
London County Council v. Allen, 82 L. J.
K.B. 432; [1913] 1 K.B. 9; 107 L. T. 853;
77 J. P. 48; 10 L. G. R. 1089; 23 Cox C.C.
266 ; 29 T. L. R. 30 : discussed in London
County Council v. Perry, 84 L. J. K.B. 1518;
[1915] 2 K.B. 193; 113 L. T. 85; 79 J. P.
312 ; 13 L. G. R. 746 ; 31 T. L. R. 281.
London County Council v. Att.-Gen., 70 L. J.
K.B. 77; [1901] A.C. 26; 83 L. T. 605;
49 W. R. 686; 65 J. P. 227 : discussed and
explained in Sugden v. Leeds Corporation,
83 L. J. K.B. 840; [1914] A.C. 483; 108 L. T.
.578; 77 J. P. 225; 11 L. G. R. 662; 6 Tax
Cas. 211: 57 S. J. 425: 29 T. L. R. 402.
London County Council v. Bermondsey
Bioscope Co., 80 L. J. K.B. 141 ; [1911] 1 K.B.
445; 103 T.. T. 760; 75 J. P. 53 ; 9 L. G. R.
79 ; 27 T. L. R. 141 : approved in Rex v.
London County Council; London and Provin-
cial Electric Theatres, Ex parte, 84 L. J.
K.B. 1787: [1915] 2 K.B. 466; 113 L. T.
118; 79 J. P. 417; 13 L. G. R. 847; 59 S. J.
382 ; 31 T. L. R. 329.
London County Council v. Erith Overseers,
63 L. J. M.C. 9; [1893] A.C. 562; 69 L. T.
725; 42 W. R. 330; 57 J. P. 821 : dictum of
Ijord Herschell in, criticised in West Kent
Main Sewerage Board v. Dartford Assess-
ment Comynittee, 80 L. J. K.B. 805; [1911]
A.C. 171; 104 L. T. 357: 9 L. G. R. 511;
75 J. P. 305 ; 55 S. J. 363.
London County Council v. Metropolitan
Railway, 78 L. J. K.B. 830; [1909] 2 K.B.
517; 101 L. T. 323; 73 J. P. 339; 7 L. G. R.
720; 53 S. J. 558 (affirmed, sub nom. Fleming
V. London County Council, 80 L. J. K.B. 35;
[1911] A.C. 1) : distinguished in Clode v.
London County Council, 83 L. J. K.B. 1587 ;
[1913] 3 K.B. 852; 12 L. G. R. 673; 58 S. J.
633; 30 T. L. R. 489.
London Furnishing Co. v. Solomon,
106 L. T. 371 ; 28 T. L. R. 265 : not followed
in Hackney Furnishing Co. v. Watts, 81 L. J.
K.B. 993: [1912] 3 K.B. 225; 106 L. T. 676;
28 T. L. R. 417.
London and Globe Finance Corporation,
In re, 72 L. J. Ch. 368: [1903] 1 Ch. 728;
88 L. T. 194; 51 W. R. 651; 10 Hanson, 198.
dictum of Buckley, J., in, cited with approval
in Bex v. Newton, 109 L. T. 747 ; 23 Cox C.C.
609.
London Joint Stock Bank v. Simmons,
61 L. J. Ch. 723; [1892] A.C. 201; 66 L. T.
625; 41 W. R. 108; 56 J. P. 644 : followed in
Fuller V. Glyn, Mills, Currie & Co., [1914]
2 K.B. 168; 110 L. T. 318.
London and Northern Steamship Co. v.
Central Argentine Railway, 108 L. T. 527:
approved in Central Argentine Railway v.
Marwood, 84 L. J. K.B. 1593.
London and North-Western Railway v.
Donellan, 67 L. J. Q.B. 681 ; [1898] 2 Q.B. 7 :
78 L. T. 575 : followed in London and North-
western Railway v. Jones, 84 L. J. K.B.
1268; [1915] 2 K.B. 35; 113 L. T. 724.
London and North- Western Railway v.
Llandudno Improvement Commissioners,
66 L. .T. Q.B. 232; [1897] 1 Q.B. 287;
75 L. T. 659; 45 W. R. 350; 61 J. P. 55 :
discussed in Lancashire ayid Yorkshire Rail-
icay V. Liverpool Corporation, 83 L. J. K.B.
1273; [1915] A.C. 152; 111 L. T. 596;
78 J. P. 409; 12 L. G. R. 771; 58 S. J. 653;
30 T. L. R. 563.
London and North- Western Railway v.
Runcorn Rural Council, 67 L. J. Ch. 324:
[1898] 1 Ch. 561; 78 L. T. 343; 46 W. R.
484; 62 J. P. 643 : distinguished in Hull Cor-
poration V. North-Eastern Railway, 84 L. -T.
Ch. 329; [1915] 1 Ch. 456; 112 L. T. 584;
79 J. P. 221 ; 13 L. G. R. 587 ; 59 S. J. 318.
London and North-Western Railway and
Great Western Joint Railways v. Billington,
68 L. J. Q.B. 162; [1899] A.C. 79; 79 L. T.
503 : considered in London and North-Western
Raihvay v. Jones, 84 L. J. K.B. 1268; [1915]
2 K.B. 35 ; 113 L. T. 724.
London and South-Western Railway v.
Gomm, 51 L. J. Ch. 530; 20 Ch. D. .562;
46 L. T. 449 ; 30 W. R. 620 : applied in
London County Council v. Allen, 80 L. J.
K.B. 1695 ; [1914] 3 K.B. 642.
Explained, Distinguished, axd Commented Ox.
2077
London Steam Dyeing Co. v. Digby, 57 L. J.
Ch. 505 ; 36 W. E. 497 : not followed in
J. T. Smith ((■ J. E. Jonex, Lim. v. Service,
Reeve <£• Co., 83 L. J. Ch. 876; [1914] 2 Ch.
576.
Long V. Atkinson, 17 Beav. 471 : followed
in Bosanquet, hi re; Unwin v. Petre,
113 L. T. 152.
Long Eaton Urban Council v. Att.-Gen.,
84 L. J. Ch. 131 ; [1915] 1 Ch. 124 ; 111 L. T.
514 ; 79 J. P. 129 ; 13 L. G. E. 23 ; 31 T. L. E.
45 : applied in Att.-Gen. v. Ilford Urban
Council, 84 L. J. Ch. 8G0; 13 L. G. E. 441.
Loome v. Baily, 30 L. ,J. M.C. 31 ; 3 E. &
E. 444 : followed in Cook v. Trevener, 80 L. J.
K.B. 118; [1911] 1 K.B. 9; 103 L. T. 725;
74 J. P. 469; 27 T. L. E. 8.
Lord V. Lord, 36 L. J. Ch. 533; L. E. 2Ch.
782 : rule of law laid down hv Lord Cairns in,
applied in Walford, In re, 81 L. J. Ch. 828;
[1912] A.C. 658.
Lord Advocate v. Lovat (Lord), 5 App.
Cas. 273 : the words of Lord O'Hagan on
possession in, at page 288, cited by Lord
Macnaghten in Johnson v. O'Neill, 81 L. J.
P.C. 35; [1911] A..C. 583; 55 S. J. 686;
27 T. L. E. 545 : adopted in Kirby v. Coro-
deroy, 81 L. J. P.C. 222; [1912] A.C. 599;
107 L. T. 74.
Lord Advocate v. Moray (Countess),
74 L. J. P.C. 122; [1905] A.C. 531; 93 L. T.
569; 21 T. L. E. 715 : dictum of Lord Mac-
naghten in, followed in Anson, In re; Duller
V. Anson, 84 L. J. Ch. 347; [1915] 1 Ch. 52;
111 L. T. 1065 ; 30 T. L. E. 694.
Loring v. Thomas, 30 L. J. Ch. 789; 1 Dr.
& Sm. 497: followed in Williams, In re;
Metcalf V. Williams, 83 L. J. Ch. 570; [1914]
2 Ch. 61 ; 110 L. T. 923 ; 58 S. J. 470.
Louis V. Smellie, 73 L. T. 226; [1895]
W. N. 115 : considered in Amber Size and
Chemical Co. v. Menzel, 82 L. J. Ch. 673;
[1913] 2 Ch. 239; 108 L. T. 520.
Love V. Bell, 53 L. J. Q.B. 257 : 9 App. Cas.
286 ; 51 L. T. 1 ; 48 J. P. 516 : considered
in Beard v. Moira Colliery Co., 84 L. J. Ch.
155 ; [1915] 1 Ch. 257 ; 112 L. T. 227 ; 59 S. J.
103.
Lovelace v. Lovelace, Cro. Eliz. 40: distin-
guished in Finlay's Estate, In re, [1913]
1 Ir. E. 143.
Low (or Jackson) v. General Steam Fishing
Co., 78 L. J. P.C. 148; [1909] A.C. 523;
101 L. T. 401 ; 53 S. J. 763; 25 T. L. E. 787 :
principle laid down in, adopted in Webber v.
Wansborough Paper Co., 82 L. J. K.B. 1058;
[1913] 3 K.B. 615 ; 109 L. T. 129.
Lower Rhine and Wiirtemberg Insurance
Association v. Sedgwick, 68 L. .J. Q.B. 186;
[1899] 1 Q.B. 179 ; 80 L. T. 6 ; 47 W. E. 261 ;
8 Asp. M.C. 466 : distinguished in Reliance
Marine Insurance Co. v. Duder, 81 L. J.
K.B. 870; [1913] 1 K.B. 265; 106 L. T. 936:
12 Asp. M.C. 223; 17 Com. Cas. 227:
28 T. L. E. 469.
Lowery v. Walker, 80 L. J. K.B. 138;
[1911] A.C. 10; 103 L. T. 674; 55 S. J. 62;
27 T. L. E. 83 : distinguished in Johnstone v.
Lochgelly Magistrates, [1918] S. C. 1078.
Lowry v. Sheffield Coal Co., 24 T. L. E.
142 : applied in Riley v. Holland, 80 L. J.
K.B. 814 ; [1911] 1 K.B. 1029 ; 104 L. T. 371 ;
27 T. L. E. 327.
Lowther v. Carlton, 2 Atk. 242: Barn. Ch.
358 : followed in Wilkes v. Spooner, 80 L. J.
K.B. 1107 ; [1911] 2 K.B. 473; 104 L. T. 911;
55 S. J. 479; 27 T. L. E. 426.
Lucas and Chesterfield Gas and Water
Board, In re, 77 L. J. K.B. 1009; [1909"
1 K.B. 16; 99 L. T. 767; 72 J. P. 437;
6 L. G. E. 1106; 24 T. L. E. 858 : approved
and applied in Cedar Rapids Manufacturing .
itc. Co. V. Lacoste, 83 L. J. P.C. 162; [1914]
A.C. 569; 110 L. T. 873; 30 T. L. E. 293.
Luckin v. Hamlyn, 21 T. L. E. 366: ex-
plained in Barron v. Potter, 84 L. J. K.B.
2008; [1915] 3 K.B. 593; 113 L. T. 801:
59 S. J. 650.
Ludlow V. Pike, 73 L. J. K.B. 274; [1904]
1 K.B. 531; 90 L. T. 458; 52 W. E. 475;
68 J. P. 243; 20 T. L. E. 276 : approved by
Vaughan Williams, L.J., and Kennedy, L.J.,
and disapproved bv Buckley, L.J., in Tuff v.
Drapers' Co. , 82 L" J. K.B. 174 ; [1913] 1 K.B.
40 ; 107 L. T. 635 ; 57 S. J. 43: 29 T. L. E. 36.
Luker v. Dennis, 47 L. J. Ch. 174: 7 Ch. D.
227; 37 L. T. 827; 26 W. E. 167 : considered
in London County Council v. Allen, 83 L. J.
K.B. 1695; [1914] 3 K.B. 642.
Lumsden v. Inland Revenue Commissioners,
84 L. J. K.B. 45; [1914] A.C. 877; 111 L. T.
993; 58 S. J. 738; 30 T. L. E. 673 : followed
in Inland Revenue Commissioners v. Walker,
84 L. J. P.C. 115; [1915] A.C. 509; 112 L. T.
611 : discussed in Congregation of Jews v.
Inland Revenue, [1915] S. C. 997.
Luxford V. Cheeke, 3 Lev. 125 : applied in
Seaton, In re; Ellis v. Seaton, 83 L. J. Ch.
124; [1913] 2 Ch. 614.
Lyell V. Kennedy, 53 L. J. Ch. 937 ; 27 Ch.
D. 1 : distinguished in Lambert v. Home.
83 L. J. K.B. 1091; [1914] 3 K.B. 86;
58 S. J. 471 ; 30 T. L. E. 474.
2078 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Lyies V. Southend-on-Sea Corporation,
74 L. J. K.B. 484 ; [1905] 2 K.B. 1 ; 92 L. T.
586; 69 J. P. 193; 3 L. G. K. 691; 21 T. L. R.
389 : applied in Myers v. Bradford Corpora-
tion, 84 L. J. K.B. 306; [1915] 1 K.B. 417;
112 L. T. 206; 79 J. P. 130; 13 L. G. R. 1;
59 S. J. 57; 31 T. L. R. 44.
Lynch v. Lansdowne (Marquis), [1914]
W.C. & I. Rep. 244; 48 Ir. L. T. 89 : con-
sidered in Luckie v. Merry, 84 L. J. K.B.
1388; [1915] 3 K.B. 83: [1915] W.C. &
I. Rep. 395; 113 L. T. 667; 59 S. J. 544;
31 T. L. R. 466.
Lynde v. Anglo-Italian Hemp Spinning Co.,
65 L. J. Ch. 96; [1896] 1 Ch. 178; 73 L. J.
502 : followed in Pacaya Rubber £ Produce Co.,
In re; Burn's Case, 83 L. J. Ch. 432: [1914]
1 Ch. 542; 110 L. T. 578; 58 S. J. 269;
30 T. Ij. R. 260.
Lyne v. Leonard, 9 B. & S. 65: L. R. 3
Q.B. 156 ; 18 L. T. 55 ; 16 W. R. 562 : followed
in Maw V. HoUowaii, 84 L. J. K.B. 99; [1914]
3 K.B. 595 ; 111 L. T. 670 ; 78 J. P. 347.
Lyons v. Weldon, 2 Bing. 334 : followed in
Mackay, hi re, [1915] 2 Ir. R. 347.
Lyons Corporation v. Advocate General of
Bengal, 1 App. Cas. 91 : applied in
Cunningham, In re; Dulcken v. Cunningham,
83 L. J. Ch. 342 ; [1914] 1 Ch. 427 ; 110 L. T.
371.
Lysaght v. Edwards, 45 L. J. Ch. 554;
2 Ch. D. 499; 34 L. T. 787; 24 W. R. 778 :
followed and applied in Allen v. Inland
Revenue Commissioners, 83 L. J. K.B. 649;
[1914] 1 K.B. 327; 110 L. T. 446; 58 S. J.
318.
Lyttelton Times Co. v. Warners, 76 L. J.
P.C. 100; [1907] A.C. 476; 97 L. T. 496;
23 T. L. R. 751 : distinguished in Pwllbach
Colliery Co. v. Woodman, 84 L. J. K.B. 874;
[1915] A.C. 634; 113 L. T. 10; 31 T. L. R.
271.
M.
Mac, The, 51 L. J. Adm. 81; 7 P. D. 126;
46 L. T. 907 ; 4 Asp. M.C. 555 : followed in
The Mudlark. 80 L. J. P. 117; [1911] P. 116;
27 T. L. R. 385.
Macandrew v. Tillard, [1909] S. C. 78:
commented on and explained in Robertson v.
Wilson, [1912] S. C. 1276.
Macartney v. Macartney, 25 T. L. R. 818:
considered in Kelsey v. Donne, 81 L. J. K.B.
603; [1912] 2 K.B. 482; 105 L. T. 856.
Macbeth v. Maritime Insurance Co., 77 L.J.
K.B. 498; [1908] A.C. 144; 11 Asp. M.C. 52;
98 L. T. 594; 13 Com. Cas. 222; 24 T. L. R.
403 : considered in Hall v. Hay man, 81 L. J.
K.B. 509; [1912] 2 K.B. 5; i06 L. T. 142;
17 Com. Cas. 81; 12 Asp. M.C. 158; 56 S. J.
205; 28 T. L. R. 171.
M'Callum v. Quinn, [1909] S. C. 227: dis-
tinguished in M' Ghee v. Summerlee Iron Co.,
[3911] S. C. 870.
McClelland v. Manchester Corporation,
81 L. J. K.B. 98; [1912] 1 K.B. 118;
105 L. T. 707 ; 76 J. P. 21 ; 9 L. G. R. 1209 ;
28 T. L. R. 21 : followed in Thompson v.
Bradford Corporation, 84 L. J. K.B. 1440;
[1915] 3 K.B. 13; 79 J. P. 364; 13 L. G. E.
884 ; 59 S. J. 495.
McDaid v. Barton, 4 Lawson 61 : distin-
guished in Steele v. Doioling, [1914] 2 Ir. R.
432.
McDonald v. Hughes, 71 L. J. K.B. 43;
[1902] 1 K.B. 94 ; 85 L. T. 727 ; 50 W. R. 318 ;
66 J. P. 86 : applied in Cooke v. Bolton Jus-
tices, 81 L. J. K.B. 648; [1912] 2 K.B. 248;
105 L. T. 818; 76 J. P. 67.
Macdonald (or Duris) v. Wilsons and Clyde
Coal Co., 81 L. J. P.C. 188; [1912] A.C. 513;
106 L. T. 905; 56 S. J. 550; 28 T. L. R. 431:
[1912] W.C. Rep. 302 : distinguished in Gray
V. Shotts Iron Co., [1912] S. C. 1267; [1912]
W.C. Rep. 359.
McEuen, In re; McEuen v. Phelps, 83 L.J.
Ch. 66: [1913] 2 Ch. 704; 109 L. T. 701;
58 S. J. 82; 30 T. L. R. 44: followed in
Wills, In re, 84 L. J. Ch. 580; [1916] 1 Ch.
769; 113 L. T. 138; 59 S. J. 477.
M'Farlane v. Birrell, 16 R. (J.) 28: fol-
lowed in Summerlee Iron Co. V. Thomson,
[1913] S. C. (J.) 34.
Macfarlane's Claim, 50 L. J. Ch. 273;
17 Ch. D. 337 ; 44 L. T. 299 : principle of.
not adopted in Laiv Car and General Insurance
Corporation, 82 L. J. Ch. 467 ; [1913] 2 Ch.
103; 108 L. T. 862.
McGlennon's Application, In re, 25 R. P. C.
797; 25 T. L. R. 23 : distinguished in Van der
Leeuw's Trade Mark, In re, 81 L. J. Ch. 100;
[1912] 1 Ch. 40; 105 L. T. 626; 28 R. P. C.
708; 66 S. J. 63; 28 T. L. R. 35.
MacGregor v. Clamp, 83 L. J. K.B. 240;
[1914] 1 K.B. 288; 109 L. T. 954; 78 J. P.
125; 58 S. J. 139; 30 T. L. R. 128: fol-
lowed in Eastwood v. McNab, 83 L. J. K.B.
941; [1914] 2 K.B. 361; 110 L. T. 701;
12 L. G. R. 617.
McGregor v. McGregor, 57 L. J. Q.B. 591 ;
21 Q.B. D. 424 : considered and explained in
Hanau v. Ehrlich, 81 L. J. K.B. 397; [1912]
A.C. 39 ; 106 L. T. 1 ; 56 S. J. 186 ; 28 T. L. R.
113.
Explained, Distinguished, and Commented Ox.
2079
M'Guignan v. Belfast Guardians, 18 L. E.
Ir. 89 : followed in Lloyd v. Bermondsey
Guardians, 108 L. T. 716; 77 J. P. 72;
11 L. G. R. 751: 29 T. L. R. 84.
Macintosh v. Dun, 77 L. J. P.C. 113; [1908]
A.C. 390; 99 L. T. 64; 24 T. L. R. 705:
followed in Greenlands v. Wilmshurst, [1913]
3 K.B. 507; 109 L. T. 487; 57 S. J. 740;
29 T. L. R. 685 : considered in Barr v. Mussel-
burgh Merdiants' Association, [1912] S. C.
174.
Mackay, In re; Griessemann v. Carr,
80 L. J. Ch. 237; [1911] 1 Ch. 300; 103 L. T.
755 : dictum of Parker, J., in, approved in
Allsop, In re: Whittaker v. Bamford. 83 L. J.
Ch. 42; [1914] 1 Ch. 1; 109 L. T. 641;
58 S. J. 9; 30 T. L. R. 18.
Mackinnon v. Miller, [1909] S. C. 373;
46 Sc. L. R. 299 : applied in Proctor v.
•'Serbino" (Owyiers), 84 L. J. K.B. 1381;
[1915] 3 K.B. 344; 113 L. T. 640; [1915]
W.C. & I. Rep. 425 : 59 S. J. 629 ; 31 T. L. R.
524.
M'Kone v. Wood, 5 Car. & P. 1 : distin-
guished in North v. Wood, 83 L. J. K.B. 587;
[1914] 1 K.B. 629 ; 110 L. T. 703 ; 30 T. L. E.
258.
M'Laren v. Caledonian Railway, [1911]
S. C. 1075; 48 Sc. L. R. 885 : approved and
followed in Pritchard v. Torkington, [1914]
W.C. & I. Rep. 271; 111 L. T. 917; 58 S. J.
739.
McLean v. Fleming, L. R. 2 H.L. Sc. 128:
applied in Kish v. Taylor, 81 L. J. K.B. 1027;
[1912] A.C. 604; 106 L. T. 900; 17 Com. Cas.
355; 56 S. J. 518; 28 T. L. R. 425.
M'Mahon v. Gaussen, [1896] 1 Ir. R. 143:
approved and followed in Hodgson, In re;
Weston V. Hodgson, 82 L. J. Ch. 31; [1913]
1 Ch. 34; 107 L. T. 607.
M'Neice v. Singer Sewing Machine Co.,
[1911] S. C. 12; 18 Sc. L. R. 15 : approved
and followed in Pierce v. Provident Clotliing
and Supply Co., 80 L. J. K.B. 831; [1911]
1 K.B. 997; 104 L. T. 473; 55 S. J. 363;
27 T. L. R. 299.
Macoun v. Erskine, Oxenford & Co., 70 L. J.
K.B. 973; [1901] 2 K.B. 493; 85 L. T. 372 :
followed in Finlay, In re; Wilson v. Finlay,
82 L. J. Ch. 295 ; [1913] 1 Ch. 565; 108 L. T.
699; 57 S. J. 444; 29 T. T;. R. 436.
McPherson v. Temiskaming Lumber Co.,
82 L. J. P.C. 113; [1913] A.C. 145; 107 L. T.
664 ; 29 T. L. R. 80 : followed in Clarkson v.
Wishart, 83 L. .7. P.C. 59; [1913] A.C. 828;
109 L. T. 775; 29 T. T.. R. 778.
M'Quater v. Fergusson, [1911] S. C. 640 :
discussed in CaUoiriiii tEarl) v. M'Clelland,
[1915] S. C. 1062.
Magdalena Steam Navigation Co. v. Martin,
28 L. J. Q.B. 310; 2 E. & E. 94; 5 Jur. (n.s.)
1260; 7 W. R. 598 : considered in Republic of
Bolivia Exploration Syndicate, In re, 83 L. J.
Ch. 226; [1914] 1 Ch. 1-39; 109 L. T. 741;
58 S. J. 173; 30 T. L. R. 78.
Main Colliery Co. v. Davies, 69 L. J. Q.B.
755 ; [1900] A.C. 358 ; 83 L. T. 83 ; 65 .J. P. 20 :
explained in Tamworth Colliery Co. v. Hall,
[1911] A.C. 665; 105 L. T. 449; 55 S. .J. 615.
Mair v. Rio Grande Rubber Estates,
83 L. J. P.C. 35; [1913] A.C. 853; .57 S. J.
728; 29 T. L. R. 692: followed in Pacaya
Rubber and Produce Co., In re, 83 L. J.
Ch. 432; [1914] 1 Ch. 542; 110 L. T. .578;
58 S. J. 269; 30 T. L. R. 260.
Makin v. Att.-Gen. for New South Wales,
63 L. J. P.C. 41; [1894] A.C. 57; 69 L. T.
778; 58 J. P. 148; 17 Cox C.C. 704 : explained
in Ibrahim v. Regem, 83 L. J. P.C. 185;
[1914] A.C. 599; 111 L. T. 20; 30 T. L. R.
383.
Malcolm v. Charlesworth, 1 Keen, 63: con-
sidered and applied in Gresham Life Assur-
ance Society v. Crowther, 84 L. J. Ch. 312;
[1915] 1 Ch. 214; 111 L. T. 887; 59 S. J. 103.
Malet's Trusts, In re, 17 L. R. Ir. 424:
considered in Mackay, In re, [1915] 2 Ir. R.
347.
Manchester Corporation v. New Moss
Colliery Co., 75 L. J. Ch. 772 ; 77 L. .T. Ch.
392; [1906] 2 Ch. 564; [1908] A.C. 117:
distinguished in London and North-Western
Railway, 80 L. J. Ch. 537; [1911] 2 Ch. 97;
104 L. T. 546; 55 S. J. 459; 27 T. L. R. 3.s9.
Manchester Ship Canal Co. v. Manchester
Racecourse Co., 70 L. J. Ch. 468; [1901]
2 Ch. 37; 84 L. T. 436; 49 W. R. 418 : dis-
tinguished in Ryan v. Thomas, 55 S. J. 364.
Mann, In re; Hardy v. Att.-Gen., 72 L. J.
Ch. 150; [1903] 1 Ch. 232; 87 L. T. 734;
51 W. R. 165 : applied in Cunningham, In re;
Dulcken v. Cunningham, 83 L. J. Ch. 342;
[1914] 1 Ch. 427; 110 L. T. 371.
Manning v. Burges, 1 Ch. Cas. 29 : fol-
lowed in Webb v. Crosse, 81 L. J. Ch. 259;
[1912] 1 Ch. 323; 105 L. T. 867; 56 S. J. 177.
Mansell v. Valley Printing Co., 77 L. J. Ch.
742; [1908] 2 Ch. 441; 99 L. T. 464;
21 T. li. R. 802 : applied in Bowden v. Amal-
gamated Pictorials, Lim., 80 L. J. Ch. 291;
[1911] 1 Ch. .386; 103 L. T. 829.
Mansfield (Earl) v. Ogle, 28 L. J. Ch. 422;
4 Dc G. & ,1. 38 : explained in Salvin, In re;
Worsleii V. Marshall, 81 L. .J. Ch. 248; [1912]
1 Ch. "332; 106 ]j. T. 35; 56 S. J. 241;
28 T. li. R. 190.
Marchant, In re, 77 L. J. K.B. 695; [igOS]
1 K.B. 998; 98 L. T. 823; 24 T. L. R.
375 : followed in Ilaxby v. Wood Advertising
Agency. 109 Ti. T. 946.
2080 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Marchant v. London County Council,
79 L. J. K.B. 718; [1910] 2 K.B. 379;
102 L. T. 917; 74 J. P. 339; 8 L. G. E. 694;
26 T. L. E. 500 : discussed in London County
Council V. Pernj, 84 L. J. K.B. 1518; [1915]
2 K.B. 193; 113 L. T. 85; 79 J. P. 312;
13 L. G. E. 746; 31 T. L. E. 281.
Markey v. Tolworth Joint Isolation Hospital
District Board, 69 L. J. Q.B. 738; [1900]
2 Q.B. 454; 83 L. T. 28; 64 J. P. 647 : dis-
approved in British Columbia Electric Railway
Co. V. Gentile, 83 L. J. P.O. 353; [1914]
A.C. 1034; 111 L. T. 682; 30 T. L. E. 594.
Marman's Trusts, In re, 8 Ch. D. 256 ;
38 Ch. D. 797 : followed in Bennett, In re;
Greenwood v. Bennett, 82 L. J. Ch. 506;
[1913] 2 Ch. 318; 109 L. T. 302.
Marriott v. Chamberlain, 55 L. J. Q.B. 448;
17 Q.B. D. 1.54; 54 L. T. 714 : discussed in
Nash V. Layton, 80 L. J. Ch. 636; [1911]
2 Ch. 71 ; 104 L. T. 834.
Marsh, In re, 54 L. J. Q.B. 557; 15 Q.B. D.
340; 53 L. T. 418 : applied in Geiger, In re,
84 L. J. K.B. 589; [1915] 1 K.B. 439;
112 L. T. 562; [1915] H. B. E. 44; 59 S. J.
250.
Marshall v. Queenborough Corporation,
1 Sim. & S. 520 : distinguished in Hoare v.
Kingsbury Urban Council, 81 L. J. Ch. 666;
[19i2] 2 Ch. 452 ; 107 L. T. 492 ; 76 J. P. 401 ;
10 L. G. E. 829; 56 S. J. 704.
Marshall v. Taylor, 64 L. J. Ch. 416;
[1895] 1 Ch. 641: 72 L. T. 670 : followed in
Kynoch v. Rowlayids. 81 L. J. Ch. 340; [1912]
1 Ch. 527; 106 L. T. 316.
Martin v. Holgate, 35 L. J. Ch. 789 ; L. E.
1 H. L. 175 : distinguished in Addie's Trustees
V Jackson, [1913] S. C. 681.
Martyn, In re; Coode v. Martyn, 69 L. J.
Ch. 733; 83 L. T. 146 : followed in Llewellyn,
In re, 80 L. J. Ch. 259; [1911] 1 Ch. 451;
104 L. T. 279; 55 S. J. 254 : questioned in
Beauchamp's Trusts, In re; Cadge v. Barker-
Hahlo, 83 L. J. Ch. 440; [1914] 1 Ch. 676;
110 L. T. 814; .58 S. J. 320.
Maryon-Wilson, In re, 69 L. J. Ch. 310;
[1900] 1 Ch. 565; 82 L. T. 171; 48 W. E.
338 : followed in Dundas' Trustees v. Dundas'
Trustees, [1912] S. C. 375.
Mason v. Provident Clothing and Supply
Co., 82 L. J. K.B. 115:i: [1913] A.C. 724;
109 L. T. 449; 57 B. J. 739 ; 29 T. L. E. 727 :
observations of Lord Moulton in, distinguished
in Nevanas tf Co. v. Walker, 83 L. J. Ch.
880; [1914] 1 Ch. 413; 110 L. T. 416; 58 R. J.
235; 30 T. L. E. 184.
Massy v. Rogers, 11 Tj. E. Tr. 409: followed
in Raven, In re; Spencer v. National Associa-
tion for Prevention of Consumption, 84 L. J.
Ch. 489; [1915] 1 Ch. 673; 113 L. T. 131.
Mather v. Brown, 45 L. J. C.P. 547 ; 1 C.P.
D. 596; 34 L. T. 869; 24 W. E. 736 : dis-
tinguished in Rex v. Casey, [1914] 2 Ir. E.
243.
Maughan v. Free Church of Scotland,
20 Eettie, 759; 30 Sc. L. E. 666; 3 Tax Cas.
207 : approved in Rex v. Income Tax Com-
missioners ; Essex Hall, ex parte, 80 L. J.
K.B. 1035; [1911] 2 K.B. 434; 104 L. T. 764;
27 T. L. E. 466.
Maxwell v. Grunhut, 59 S. J. 104;
31 T. L. E. 79 : followed and applied in
Gaudig d- Blum, In re, 31 T. L. E. 153.
May V. Yuill, 27 E. P. C. 525 : not followed
in British, Foreign, and Colonial Automatic
Light Controlling Co. v. Metropolitan Gas
Meters, Lim., 81 L. J. Ch. 520; [1912] 2 Ch.
82; 106 L. T. 834.
Maynard v. Gibson, [1876] \V. N. 204:
followed in White v. Paine, 83 L. J. K.B.
895; [1914] 2 K.B. 486; 58 S. J. 381;
30 T. L. E. 347.
Meek v. Kettlewell, 11 L. J. Ch. 293;
1 Hare, 464; 6 Jur. 550 : applied in Mudge,
In re, 83 L. J. Ch. 243; [1914] 1 Ch. 115;
109 L. T. 781 ; 58 S. J. 117.
Megret, In re; Tweedie v. Maunder,
70 L. J. Ch. 451; [1901] 1 Ch. 547; 84 L. T.
192 : considered in Pryce, In re; Lawford v.
Pryce, 80 L. J. Ch. 525; [1911] 2 Ch. 286;
105 L. T. 51.
Melhado v. Porto Alegre and New Ham-
burg and Brazilian Railway, 43 L. J. C.P.
253; L. E. 9 C.P. 503; 31 L. T. 57; 23 W. E.
57 : distinguished in Hickman v. Kent (or
Romney) Marsh Sheep Breeders' Association,
84 L. J. Ch. 688 ; [1915] 1 Ch. 881 ; 113 L. T.
159; 59 S. J. 478.
Melhuish v. London County Council,
83 L. J. K.B. 1165; [1914] 3 K.B. 325;
111 L. T. 539; 78 J. P. 441; 12 L. G. E.
1086; 30 T. L. E. 527 : judgment of Avory,
J., in, commented upon in Prance v. London
County Council, 84 L. J. K.B. 623; [1915]
1 K.B. 688; 112 L. T. 820; 79 J. P. 242;
13 L. G. E. 382; 31 T. L. E. 128.
Mellor's Trustees v. Maas, 71 L. J. K.B.
26; 74 L. J. K.B. 452; [1902] 1 K.B. 137;
[1905] A.C. 102; 85 L. T. 490; 92 L. T. 371;
50 W. E. Ill; 53 W. E. 513; 8 Manson, 341:
12 Manson, 107; 21 T. L. E. 304 : discussed
and applied in Johnson v. Rees, 84 L. J.
K.B. 1276.
Melson & Co., In re, 75 L. J. Ch. 509
[1906] 1 Ch. 841; 94 L. T. 641; 54 W. E
468; 13 Manson, 190; 22 T. L. E. 500
followed in Clandown Colliery, In re, 84 L. J
Ch. 420; [1915] 1 Ch. 369; 112 L. T. 1060;
[1915] H. B. E. 93; 59 S. J. 350.
Mercedes Daimler Motor Co. v. Maudslay
Motor Co., 32 E. P. C. 149; 31 T. L. E. 178:
followed in Rombach Baden Clock Co., 84 L. J.
K.B. 1558; 31 T. L. E. 492.
Explained, Distixguished, and Commented On.
2081
Merrick's Case, 2 Peck. 91: discussed and
applied in Rex v. Dymock (Vicar), 84 L. J.
K.B. 294; [19151 1 K.B. 147; 112 L. T. 156;
79 J. P. 91 : 13 L. G. R. 48 ; 31 T. L. R. 11.
Merry weather v. Moore, 61 L. J. Ch. 505 ;
[1892] 2 Ch. 518 ; 66 L. T. 719 ; 40 W. R. 540 :
considered in Amber Size and Chemical Co. v.
Menzel, 82 L. J. Ch. 573; [1913] 2 Ch. 239;
109 L. T. 520.
Merryweather v. Nixan, 8 Term Rep. 186 ;
1 Spa. L.C. (12th ed.), 443; the principle of,
does not apply in the case of contribution in
general average : so held in Austiyi Friars
SteamsJiip Co. v. Spillers d Bakers, 84 L. J.
K.B. 1958; [1915] 3 K.B. 586; 113 L. T.
805; 31 T. L. R. 535.
Mersey Docks and Harbour Board v. Lucas,
53 L. J. Q.B. 4 ; 8 App. Cas. 891 : 49 L. T. 781 ;
32 W. R. 34; 48 J. P. 212 : followed in City
of Dublin Steam Packet Co. v. O'Brien, 6 Tax
Cas. 101.
Metcalfe, In re; Metcalfe v. Earle, 78 L. J.
Ch. 303 ; [1909] 1 Ch. 424 ; 100 L. T. 222 : fol-
lowed in Williams, In re: Metcalf v. Williams,
83 L. J. Ch. 570; [1914] 2 Ch. 61 ; 110 L. T.
923; 58 S. J. 470.
Meyler v. Meyler, 11 L. R. Ir. 522: not
followed in Cross's Trust, In re, [1915]
1 Ir. R. 304.
Middleton v. Pollock; Elliott, Ex parte,
45 L. J. Ch. 293; 2 Ch. D. 104 : explanation
of, given by Chitty, L.J., in A'e!*;, Prance, ami
Garrard's Trustee v. Hunting (66 L. J. Q.B.
554; [1897] 2 Q.B. 19): approved of in
Cozens, In re; Green v. Brisley, 82 L. J. Ch.
421; [1913] 2 Ch. 478; 109 L. T. 306;
57 S. J. 687.
Mid-Kent Fruit Factory, In re, 65 L. J.
Ch. 250; [1896] 1 Ch. 567; 74 L. T. 22;
44 W. R. 284; 3 Manson, 59: distinguished
in Thome & Son, Lim., In re, 84 L. J. Ch.
161; [1914] 2 Ch. 438; 112 L. T. 30; [1915]
H. B. R. 19; 58 S. J. 755.
Midland Railway v. Birmingham Corpora-
tion, 13 L. T. 404 : followed in Lancashire
and Yorkshire Railway v. Liverpool Corpora-
tion, 76 J. P. 329; 10 L. G. R. 575.
Midland Railway v. Great Western Railway,
42 L. J. Ch. 438; L. R. 8 Ch. 841; 28 L. T.
718 ; 21 W. R. 657 : distinguished in Great
Central Railway v. Midland Railway, 83 L. J.
K.B. 221; [1914] A.C. 1; 110 L. T. 481;
58 S. J. 65; 30 T. L. R. 33.
Metropolitan Coal Consumers Association,
In re; Karberg's Case, 61 L. J. Ch. 741;
[1892] 3 Ch. 1 ; 66 I.. T. 700 : followed in
Pacaya Rubber and Produce Co., In re;
Burns's Case, 83 L. J. Ch. 432; [1914] 1 Ch.
542; 110 L. T. 578; 58 S. J. 269; 30 T. L. R.
260.
Metropolitan Railway v. London County
Council, 80 L. J. K.B. 35; [1911] A.C. 1;
103 L. T. 466; 8 L. G. R. 1055; 75 J. P. 9;
55 S. J. 28 : distinguished in Clode v. London
County Council, 83 L. J. K.B. 1587; [1914]
3 K.B. 852; 12 L. G. R. 673; 58 S. J. 633;
.30 T. L. R. 489.
Metropolitan Water Board v. Avery, 83 L. J.
K.B. 178; [1914] A.C. 118; 109 L. T. 762;
78 J. P. 121 ; 12 L. G. R. 95 ; .58 S. J. 171 ;
30 T. L. R. 189 : distinguished in Oddenino
V. Metropolitan Water Board, 84 L. J. Ch.
102; [1914] 2 Ch. 734; 112 L. T. 115;
79 J. P. 89; 13 L. G. R. 33; .59 S. J. 129;
31 T. L. R. 23.
Metropolitan Water Board v. London,
Brighton, and South Coast Railway, 79 L. J.
K.B. 1179; [1910] 2 K.B. 890; 103 L. T. 304;
74 J. P. 409 ; 8 L. G. R. 930 ; 26 T. L. R. 676 :
discussed in Metropolitan Water Board v.
Colley's Patents, 80 L. J. K.B. 929; [1911]
2 K.B. 38; 104 L. T. 478; 75 J. P. 217;
9 L. G. R. 483 ; 55 S. J. 311 ; 27 T. Tj. R. 286.
Midland Railway v. Loseby, 68 L. J. Q.B.
326; [1899] A.C. 133; 80 L. T. 93; 47 W. R.
656 : followed in Lo7idon and North-Western
Railway v. Jones, 84 L. J. K.B. 1268; [1915]
2 K.B. 35 ; 113 L. T. 724.
Midwood V. Manchester Corporation, 74 L. J.
K.B. 884 : [1905] 2 K.B. 597 ; 93 L. T. 525 ;
54 W. R. 37; 69 J. P. 348; 3 L. G. R. 1136;
21 T. L. R. 667 : followed in Charing Cross,
West End and City Electric Supply Co. v.
London Hydraulic Supply Co., 83 L. J. K.B.
1352; [1914] 3 K.B. 772; 111 L. T. 198;
78 J. P. 305; 12 L. G. R. 807; 58 S. J. 577;
30 T. L. R. 441 : distinguished in Goodbody v.
Poplar Borough Council, 84 L. J. K.B. 1230;
79 J. P. 218; 13 L. G. R. 166.
Mighell V. Sultan of Johore, 63 L. J. Q.B.
593; [1894] 1 Q.B. 149; 70 L. T. 64; 58 J. P.
244 : considered in Republic of Bolivia Explora-
tion Syndicate, In re, 83 L. J. Ch. 226; [1914]
1 Ch. 139; 109 L. T. 741; 110 L. T. 141;
58 S. J. 173; 30 T. L. R. 78.
Milan, The, 31 L. J. Adm. 105; Lush. 388:
ronsidcrcd in The Drumlanrig, 80 L. J. P. 9:
[1911] A.C. 16; 103 L. T. 773; 11 Asp. M.C.
520; 55 S. J. 138; 27 T. L. R. 146 : explained
and distingui.shed in The Devonshire, 81 L. J.
P. 94; [1912] A.C. 634; 107 L. T. 179;
57 S. J. 10; 28 T. L. R. 551 : considered in
2082 Cases Followed, Not Followed, Approved, Overruled, Questioned,
The Umona, 83 L. J. P. 106; [1914] P. 141;
111 L. T. 415 ; 12 Asp. M.C. 527 ; 30 T. L. R.
498.
Millar v. Toulmin, 55 L. J. Q.B. 445 :
17 Q.B. D. 603; 34 W. R. 695 : approved in
Skeate v. Slaters, Lim., 83 L. J. K.B. 676;
[1914] 2 K.B. 429; 110 L. T. 604 ; 30 T. L. R.
290.
Mole V. Wadworth, [1913] W.C. & I. Rep.
160 : discussed in Edwards v. Wingham Agri-
cultural Implement Co., 82 L. J. K.B. 998;
[1913] 3 K.B. 596; 109 L. T. 50; 57 S. J. 701.
Molloy V. Mutual Reserve Life Insurance
Co., 94 L. T. 756: followed in Oelkers v.
Ellis, 83 L. J. K.B. 658; [1914] 2 K.B. 139;
110 L. T. 332.
Millbourn v. Lyons, 83 L. J. Ch. 737;
[1914] 2 Ch. 231 ; 58 S. J. 578 : applied in
London Countij Council v. Allen, 83 L. J.
K.B. 1696 ; [1914] 3 K.B. 642.
Miller v. Hancock, [1893] 2 Q.B. 177:
69 L. T. 214; 41 W. R. 578; 57 J. P. 578 :
distinguished in Lucy v. Baioden, 83 L. J.
K.B. 523; [1914] 2 K.B. 318; 110 L. T. 580;
30 T. L. R. 321 ; and in Dobson v. Horsley,
84 L. J. K.B. 399: [1915] 1 K.B. 634:
112 L. T. 101; 31 T. L. R. 12.
Mills V. Carson, 10 R. P. C. 9: distinguished
in Curnmings v. Stewart, [1913] 1 Ir. R. 95.
Minchin v. Minchin, 5 Ir. R. Eq. 178, 258:
followed in Horsfall, In re, 80 L. J. Ch. 480;
[1911] 2 Ch. 63; 104 L. T. 590.
Minter v. Snow, 74 J. P. 257 : applied in
Rex V. Registrar of Joint-Stock Comipanies :
Bowen, Ex parte, 84 L. J. K.B. 229: [1914]
3 K.B. 1161; 112 L. T. 38; 30 T. L. R. 707.
Minturn v. Barry, 8U L. J. K.B. 802; [1911]
2 K.B. 265; 104 L. T. 635; 9 L. G. R. 611;
75 J. P. 330; -55 S. J. 385; 27 T. L. R. 352:
dictum of Bankes, J., in, overruled in Barry v.
Minturn, 82 L. J. K.B. 1193; [1913] A.C.
584 ; 109 L. T. 573 ; 57 S. J. 715 : 29 T. L. R.
717 ; 77 J. P. 437 ; 11 L. G. R. 1087.
Mirrlees' Charity, In re, 79 L. J. Ch. 73;
[1910] 1 Ch. 163; 101 L. T. 549; 26 T. L. R.
77 : commented on in Glasgow Society for
Prevention of Cruelty to Animals v. National
Anti-Vivisection Society, [1915] S. C. 757.
Mitchell V. Armstrong, 17 T. L. R. 495:
doubted by Kennedy, L.J., in Lacon's Settle-
ment, In re, 80 L. J. Ch. 610 ; [1911] 2 Ch. 17 ;
104 L. T. 840; 55 S J. 551 ; 27 T. L. R. 485.
Mitchell V. Glamorgan Colliery Co.,
23 T. L. R. 588 : considered in Jenkins v.
Standard Colliery Co., 105 L. T. 730;
28 T. L. R. 7 : followed in Wright v. Kerri-
gan, [1911] 2 Ir. R. 301.
Mitford Union v. Wayland Union, -^O L. J.
M.C. 86; 25 Q.B. D. 164; 63 L. T. 299;
38 W. R. 632 : 54 J. P. 757 : dicta of Lord
Esher in, not followed in Paddington Union
V. Westminster Union, 84 L. J. K.B. 1727;
[1915] 2 K.B. 644: 79 J. P. 343; 13 L. G. R.
641.
Monckton's Settlement, In re, 83 L. J. Ch.
34; [1913] 2 Ch. 636; 109 L. T. 624; 57 S. J.
836 : approved in Niitt's Settlement, In re,
84 L. J. Ch. 877; [1915] 2 Ch. 431; 59 S. J.
717.
Montague, In re; Ward, ex parte, 76 L. T.
203; 4 Manson, 1 : discussed and explained in
Teale, hi re; Blackburn, ex parte, 81 L. J.
K.B. 1243; [1912] 2 K.B. 367; 106 L. T. 893;
56 S. J. 553; 28 T. L. R. 415.
Montague v. Montague, 15 Beav. 565 :
followed in Peel's Settlement, In re; Biddulph
V. Peel, 80 L. J. Ch. 574; [1911] 2 Ch. 165;
105 L. T. 330; 55 S. J. 580.
Moody, In re; Woodroflfe v. Moody, 64 L.J.
Ch. 174; [1895] 1 Ch. 101; 72 L. T. 190;
43 W. R. 462 : followed in Abrahams , In re,
80 L. J. Ch. 83; [1911] 1 Ch. 108; 103 L. T.
532; 55 S. J. 46.
Moody V. Tree, 9 R. P. C. 333: followed in
Pugh V. Riley Cycle Co., 81 L. J. Ch. 476;
[1912] 1 Ch. 613; 106 L. T. 592; 29 R. P. C.
196; 28 T. L. R. 249.
Moore, In re; Trafford v. Maconochie,
57 L. J. Ch. 936; 39 Ch. D. 116; 59 L. T.
681; 37 W. R. 83; 52 J. P. 596 : distinguished
in Charleton, In re, 55 S. J. 330.
Moore, Ex parte, 54 L. J. Q.B. 190; 14 Q.l'..
D. 627 ; 52 L. T. 376 : followed in Debtor,
In re, 81 L. J. K.B. 1225 ; [1912] 3 K.B. 242 ;
107 L. T. 506.
Moore v. Cleghorn, 10 Beav, 423: on app.,
12 Jur. 591 : distinguished in Jones, In re,
84 L. J. Ch. 222; [1915] 1 Ch. 246; 112 L. T.
409 ; 59 S. .1. 218.
Moore v. Manchester Liners, 79 L. J. K.B.
1175 ; [1910] A.C. 498 ; 103 L. T. 226 ; 54 S. J.
703; 26 T. L. R. 618: distinguished in
Kitchenham v. Johannesburg {Owners),
80 L. J. K.B. 1102; [1911] A.C. 417;
105 L. T. 118; 55 S. J. 599; 27 T. L. R. 504.
Mordaunt v. Benwell, 51 L. J. Ch. 247 ;
19 Ch. D. 302 : discussed and applied in
Herbert v. Herbert, 81 L. J. Ch. 733; [1912]
2 Ch. 268.
Morison v. Moat, 20 L. J. Ch. 513; 9 Hare,
241 : applied in Amber Size and Chemical Co,
V. Menzel, 82 L. J. K.B. 573: [1913] 2 Ch.
239; 109 L. T. 520.
Explained, Distinguished, and Commented On.
2083
Morphett v. Morphett, 38 L. J. P. 23; L. K.
1 P. & D. 702 ; 19 L. T. 801 : disapproved in
Browning v. Browning, 80 L. J. P. 74; [1911]
P. 161; 104 L. T. 750; 55 S. J. 462;
27 T. L. K. 404.
Morris y. Oceanic Steam Navigation Co.,
16 T. L. R. 533 : considered in Bank of
Australasia v. Clan Line Steamers, 84 L. J.
K.B. 1250; [1916] 1 K.B. 39.
Morris v. Richards, 45 L. T. 210: followed
in Gelmini v. Moriggia, 82 L. J. K.B. 949;
[1913] 2 K.B. 549; 109 L. T. 77 ; 29 T. L. E.
486.
Mortimer v. M'Callan, 9 L. J. Ex. 73;
6 M. & AV. 58 : followed in Owner v. Beehive
Spinning Co., 83 L. J. K.B. 282; [1914] 1 K.B.
105 ; 109 L. T. 800; 78 J. P. 15 ; 12 L. G. R.
42; 23 Cox C.C. 626; 30 T. L. R. 21.
Moss V. Gallimore, 1 Dougl. 279 : con-
sidered in Ind, Coope d Co., In re; Fisher
V. The Company, 80 L. J. Ch. 661; [1911]
2 Ch. 223; 55 S. J. 600.
Moss V. Great Eastern Railway, 78 L. J.
K.B. 1048; [1909] 2 K.B. 274; 100 L. T. 747;
25 T. L. R. 466 : followed in Taylor v. Cripps,
83 L. J. K.B. 1.538; [1914] 3 K.B. 989;
80 T. L. R. 616.
Mostyn v. Lancaster, 52 L. J. Ch. 848;
23 Ch. D. 583 : applied in Thomson's Estate,
In re, [1912] 1 Ir. R. 460.
Moult V. Halliday, 67 L. J. Q.B. 451;
[1898] 1 Q.B. 125; 77 L. T. 794; 46 W. R.
318; 62 J. P. 8: considered in George v.
Davies, 80 L. J. K.B. 924 ; [1911] 2 K.B. 445 ;
104 L. T. 648; 55 S. J. 481; 27 T. L. R. 415.
Mowatt V. Castle Steel and Ironworks Co.,
34 Ch. D. 58 : distinguished in Co.r v. Dublin
City Distillery Co., [1915] 1 Ir. R. 345.
Mozley Stark v. Mozley Stark, 79 L. J. P.
98; [1910] P. 190; 101 L. T. 770; 26 T. L. R.
194 : distinguished in Clarke v. Clarke, 57 S. J.
644.
Mulhern v. National Motor Cab Co.,
29 T. Tj. R. 677 : commented on in Bester-
mann v. British Motor Cab Co., 83 L. J.
K.B. 1014; [1914] 3 K.B. 181; 110 L. T. 7.54;
.58 S. J. 319; .30 T. Tj. R. 319.
Mundy and Roper's Contract, In re, 68 L. J.
Ch. 135; [1899] 1 Ch. 275; 79 L. T. 583;
47 W. R. 226 : distinguished in Collis's Estate,
In re, [1911] 1 Ir. R. 267; observations in,
considered in Bruen's Estate, In re, [1911]
1 Ir. R. 76.
Murphy v. Cooney, [1914] W.C. & I. Rep.
44 ; 48 Ir. L. T. 13 : distinguished in Williams
V. Llandudno Coaching and Carriage Co.,
84 L. J. K.B. 655; [1915] 2 K.B. 101; [1915]
W.C. k I. Rep. 91; 112 ]j. T. 848; 59 S. J.
286; 31 T. L. R. 186.
Murphy v. Enniscorthy Union, [1908] 2 Ir.
R. 609 : distinguished in Finlay v. Tullamore
Union, [1914] 2 Ir. R. 233.
Murray v. Denholm, [1911] S. C. 1087:
disapproved in Trim Joint District School v.
Kelly, 83 L. J. P.C. 220; [1914] A.C. 667;
111 L. T. 305 ; 58 S. J. 493; 30 T. L. R. 452.
Murray v. Scott, 53 L. J. Ch. 745 ; 9 App.
Cas. 519; 51 L. T. 462 : applied in Birkbeck
Permanent Benefit Building Society, In re,
81 L. J. Ch. 769; [1912] 2 Ch. 183 ; 106 L. T.
968; 28 T. L. R. 451.
Mustapha, In re, 8 T. L. R. 160: followed
in Wasserberg, In re, 84 L. J. Ch. 214;
[1915] 1 Ch. 195; 112 L. T. 242; 59 S. J. 176.
Musther, In re; Groves v. Musther, 59 L. J.
Ch. 296; 43 Ch. D. 569: distinguished in
Williams, In re; Metcalf v. Williams, 83 L. J.
Ch. 570; [1914] 2 Ch.' 61; 110 L. T. 923;
58 S. J. 470.
Musurus Bey v. Gadban, 63 L. J. Q.B. 621;
[1894] 1 Q.B. 533; [1894] 2 Q.B. 352;
71 L. T. 51; 42 W. R. 545: considered in
Republic of Bolivia Exploration Syndicate,
In re, 83 L. J. Ch. 226; [1914] 1 Ch. 139;
109 L. T. 741; 110 L. T. 141; 68 S. J. 173;
30 T. L. R. 78.
N.
Nash, In re, 65 L. J. Q.B. 65; [1896]
1 Q.B. 13; 73 L. T. 477 ; 44 W. R. 112;
2 Manson, 503 : applied in Geiger, In re,
84 L. J. K.B. 589; [1915] 1 K.B. 439;
112 L. T. 562; [1915] H. B. R. 44; 59 S. J.
250.
Nash V. " Rangatira " (Owners), 83 L. J
K.B. 1496; [1914] 3 K.B. 978; [1914] W.C
& I. Rep. 490; 111 L. T. 704; 58 S. J. 705
distinguished in Williams v. Llandudno Coach
ing and Carriage Co., 84 L. J. K.B. 655
[1915] 2 K.B. 101 ; [1915] W.C. & I. Rep. 91
112 L. T. 848; 59 S. J. 286; 31 T. L. R. 186.
National Insurance Act, 1911, In re; Officers
of South Dublin Union, [19131 1 Ir. R. 244:
distinguished in Finlay v. Tullamore Union,
[1914] 2 Ir. R. 233.
National Telephone Co. v. Smith, [1909]
S. C. 1363 : dissented from in Calico Printers'
Association v. Higham, 81 L. J. K.B. 232;
[1912] 1 K.B. 93;" 105 L. T. 734; 56 S. J. 89;
28 T. L. R. 53.
Neal, Ex parte ; Batey, in re, 14 Ch. D.
.579: 43 Ti. T. 264: followed in Victor V.
Victor, 81 L. J. K.B. 354: [1912] 1 K.B. 247;
105 L. T. 887; 19 Manson, 53; 56 S. J. 204;
28 T. L. R. 131.
2084 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Nedby v. Nedby, 21 L. J. Ch. 446; 5 De G.
& Sm. 377 : approved in Bank of Montreal v.
StuaH, 80 L. J. P.C. 75; [1911] A.C. 120;
103 L. T. 641; 27 T. L. E. 117.
Neil V. Neil, 4 Hag. Ecc. Rep. 273: distin-
guished in Hall v. Hall, 84 L. J. P. 93;
[1915] P. 105 ; 112 L. T. 58 ; 59 S. J. 381.
Nelson v. Nelson Line, 77 L. J. K.B. 97;
[1907] 2 K.B. 705 ; 23 T. L. R. 656 : distin-
guished in Maicson Shipping Co. v. Beyer,
83 L. J. K.B. 290; [1914] 1 K.B. 304;
109 L. T. 973; 19 Com. Cas. 59.
Nerot V. Burnand, 2 Russ. 56: applied in
Coleman v. Smith, 81 L. J. Ch. 16; [1911]
2 Ch. 572; 28 T. L. R. 65.
Newbery v. James, 2 Mer. 446 : distin-
guished in Amber Size and Chemical Co. v.
Menzel, 82 L. J. Ch. -575; [1913] 2 Ch. 239;
109 L. T. 520.
Newdigate Colliery Co., In re, 81 L. J. Ch.
235; [1912] 1 Ch. 468; 106 L. T. 133;
19 Manson, 155 ; 28 T. L. R. 207 : distinguished
in Great Cobar, Lim., In re, 84 L. J. Ch. 468;
[1915] 1 Ch. 682; [1915] H. B. R. 79.
Newfoundland Government v. Newfound-
land Railway, 57 L. J. P.C. 35; 13 App. Cas.
199 : distinguished in Stoddart v. Union
Trust, Lim., 81 L. J. K.B. 140; [1912]
1 K.B. 181 ; 105 L. T. 806.
Newton v. Cubitt, 31 L. J. C.P. 246:
12 C. B. (N.s.) 32; 6 L. T. 860 : considered in
General Estates Co. v. Beaver, 84 L. J.
K.B. 21; [1914] 3 K.B. 918; 111 L. T. 957;
79 J. P. 41 ; 12 L. G. R. 1146 ; 30 T. L. R. 634.
Newton v. Newton, 55 L. J. P. 13; 11 P. D.
11 : principle laid down in, is of general appli-
cation ; so held in Burmester v. Burmester,
82 L. J. P. 54; [1913] P. 76; 108 L. T. 272;
57 S. J. 392; 29 T. L. R. 323.
New York Taxicab Co., In re; Sequin v.
The Company, 82 L. J. Ch. 41 ; [1913] 1 Ch.
1; 107 L. T. 813; 19 Manson, 389; 57 S. J.
98 ; considered in Gregson v. Taplin d Co..
112 L. T. 985 ; 59 S. J. 349 : distinguished
in Tilt Cove Copper Co., In re, 82 L. J. Ch.
545 ; [1913] 2 Ch. 588 ; 109 L. T. 138 ; 57 S. J.
773.
Nicholson v. Piper, 76 L. J. K.B. 856;
[1907] A.C. 215; 97 L. T. 119; 23 T. L. R.
620 : followed in Green v. Cammell, Laird
(t Co., 82 L. J. K.B. 1230; [1913] 3 K.B. 665;
109 L. T. 202 ; 29 T. L. R. 703.
Nisbet V. Rayne, 80 L. .J. K.B. 84 ; [1910J
2 K.B. 689; 103 L. T. 178; 54 S. J. 719;
26 T. L. R. 632 ; applied in Mitchinson v.
Day, 82 L. J. K.B. 421; [1913] 1 K.B. 603;
108 L. T. 193; [1913] W.C. & I. Rep. 324;
57 S. J. 300 ; 29 T. L. R. 267 ; disapproved
in Murray v. Denholm, [1911] S. C. 1087 :
approved in Trim Joint District School v.
Kelly, 83 L. J. P.C. 220; [1914] A.C. 667;
111 L. T. 305; 58 S. J. 493; 30 T. L. R. 452.
New Monckton Collieries v. Keeling, 80 L. ,T.
K.B. 1205; [1911] A.C. 684; 105 L. T. 337;
55 S. J. 687 ; 27 T. L. R. 551 : distinguished in
Potts (or Young) v. Niddrie and Benhar Coal
Co., 82 L. J. P.C. 147; [1913] A.C. 531;
[1913] W.C. & I. Rep. 547; 109 L. T. 568;
57 S. J. 685 ; 29 T. L. R. 626.
Newquay Urban Council v. Bickeard,
80 L. J. K.B. 1164; [1911] 2 K.B. 846;
105 L. T. 519 ; 9 L. G. R. 1042 ; 75 J. P. 382 :
dictum of Lord Alverstone, C.J., in, dis-
approved in Chatterton v. Glanford Brigg
Rural Council, 84 L. J. K.B. 1865; [1915]
3 K.B. 707; 113 L. T. 746; 79 J. P. 441;
13 L. G. R. 1352.
New River Co. v. Hertford Union, 71 L. J.
K.B. 827; [1902] 2 K.B. 597; 87 L. T. 360;
51 W. R. 49 ; 66 J. P. 724 : followed in
Metropolitan Water Board v. Chertsey Union,
84 L. J. K.B. 1823 ; 79 J. P. 360 ; 13 L. G. R.
692.
Newton v. Birmingham Small Arms Co.,
75 L. J. Ch. 627; [1906] 2 Ch. 378; 95 L. T.
135; 54 W. R. 621; 13 Manson, 267;
22 T. L. R. 664 : distinguished in Young v.
Brownlee, [1911] S. C. 677.
Nisbet and Potts' Contract, In re, 75 L. J.
Ch. 238; [1906] 1 Ch. 386; 94 L. T. 297;
54 W. R. 286 ; 22 T. L. R. 233 : applied in
London County Council v. Allen, 83 L. J.
K.B. 1695; [1914] 3 K.B. 642.
Nixon's Navigation Co., In re, 66 L. J. Ch.
406 ; [1897] 1 Ch. 872 ; followed in De la Rue
& Co., In re, [1911] 2 Ch. 361 ; 105 L. T. 542;
55 S. J. 715.
Noakes v. Noakes, 47 L. J. P. 20; 4 P. D.
60; 37 L. T. 47; 26 W. R. 284 : commented
on in Burmester v. Burmester , 82 L. J. P. 54 ;
[1913] P. 76; 108 L. T. 272; 57 S. J. 392;
29 T. L. R. 323.
Noakes v. Rice, 71 L. J. Ch. 139; [1902]
A.C. 24 ; 86 L. T. 62 ; 50 W. R. 305 ; 66 J. P.
147 : discussed and distinguished in Kreglinger
V. New Patagonia Meat and Cold Storage Co.,
83 L. J. Ch. 79; [1914] A.C. 25; 109 L. T.
802 ; 58 S. J. 97 ; 30 T. L. R. 114.
Noble V. Cass, 2 Sim. 343 : applied in
Lacon's Settlement, In re, 80 L. J. Ch. 610;
[1911] 2 Ch. 17; 104 L. T. 840; 55 S. J. 551;
27 T. L. R. 485.
Explained, Distinguished, and Commented On.
2085
Noblett V. Hopkinson, 74 L. J. K.B. 544
[1905] 2 K.B. 214; 92 L. T. 462; 53 W. R
637; 69 J. P. 269; 21 T. L. R. 448 : distin
guished in Bristow v. Piper. 84 L. J. K.B
607; [1915] 1 K.B. 271; 112 L. T. 426;
79 J. P. 177 ; 59 S. J. 178 ; 31 T. L. E. 80.
Nordon v. Defries, 51 L. J. Q.B. 415 ;
8 Q.B. D. 508; 30 W. R. 612; 46 J. P. 566 :
overruled in Lambert v. Home, 83 L. J.
K.B. 1091; [1914] 3 K.B. 86; 58 S. J. 471;
30 T. L. R. 474.
Norman v. Yillars, 46 L. J. Q.B. 579;
2 Ex. D. 359; 36 L. T. 788: applied in
Sinclair v. Fell, 82 L. J. Ch. 105; [1913]
1 Ch. 155; 108 L. T. 152; 57 S. J. 145;
29 T. L. R. 103.
Norman & Burt v. Walder, 73 L. J. K.B.
461; [1904] 2 K.B. 27; 90 L. T. 531;
52 W. R. 402; 68 J. P. 401; 20 T. L. R. 427 :
commented on in Calico Printers' Association
V. Higham, 81 L. J. K.B. 232; [1912] 1 K.B.
93 ; 105 L. T. 734 ; 56 S. J. 89 ; 28 T. L. R. 53.
Normandy, The, 20 T. L. R. 239: followed
in The Upcerne, 81 L. J. P. 110; [1912] P.
160; 28 T. L. R. 370.
North, In re; Meates v. Bishop, 76 L. T.
186 : distinguished in Fraser Settlement ; Ind
V. Fraser, 82 L. J. Ch. 406; [1913] 2 Ch.
224; 108 L. T. 960; 57 S. J. 462.
North V. Percival, 67 L. J. Ch. 321; [1898]
2 Ch. 128; 78 L. T. 615; 46 W. R. 552:
doubted in Von Hatzfeldt-Wildenburg (Prin-
cess) V. Alexayider, 81 L. J. Ch. 184; [1912]
1 Ch. 284; 105 L. T. 434.
North of England Insurance Association v.
Armstrong, 39 L. J. Q.B. 81: L. R. 5 Q.B.
244 ; 21 L. T. 822 ; 18 W. R. 520 : followed in
Thames and Mersey Marine Insurance Co. v.
British and Chilian Steamship Co., 84 L. J.
K.B. 1087 ; [1915] 2 K.B. 214 ; 113 L. T. 173 ;
20 Com. Cas. 265 ; 31 T. L. R. 275.
North and South Western Junction Railway
V. Brentford Assessment Committee, 58 L. J.
M.C. 95; 13 App. Cas. 592; 60 L. T. 274:
applied in East London Railway Joint Com-
mittee V. Greenwich Assessment Committee,
82 L. J. K.B. 297; [1913] 1 K.B. 612;
107 L. T. 805; 77 J. P. 153; 11 L. G. R. 265;
29 T. L. R. 171.
panics within the Assurance Companies Act,
1909 : so held in Law Car and General Insur-
ance Corporation, In re; King £ Son's Claim
{No. 2), 82 L. J. Ch. 467; [1913] 2 Ch. 103;
108 L. T. 862 ; 57 S. J. 556 ; 29 T. L. E. 532.
North-West Transportation Co. v. Beatty,
56 L. J. P.C. 102 ; 12 App. Cas. 589 ; 57 L. T.
426 : considered and applied in Costello v.
Londoti General Omnibus Co., 107 L. T. 575 :
considered and applied in Transvaal Lands
Co. V. New Belgium {Transvaal) Land, dc.
Co., 84 L. J. Ch. 94; [1914] 2 Ch. 488;
112 L. T. 965; 21 Manson, 364; 59 S. J. 27;
31 T. L. R. 1.
Norton, In re, 80 L. J. Ch. 119; [1911]
2 Ch. 27 ; 103 L. T. 821 : considered in
Hewett's Settlement, In re, 84 L. J. Ch. 715:
[1915] 1 Ch. 810; 113 L. T. 315; 59 S. J. 476.
Norton v. London and North-Western Rail-
way, 13 Ch. D. 268: followed in Kynoch v.
Rowlands, 81 L. J. Ch. 340; [1912] 1 Ch.
527 ; 106 L. T. 316.
Norton v. Yates, 75 L. J. K.B. 252; [1906]
1 K.B. 112 ; 54 W. R. 183 : applied in Sinnott
V. Bowden, 81 L. J. Ch. 832: [1912] 2 Ch.
414; 28 T. L. R. 594.
Norwich Union Fire Insurance Co. v. Magee,
73 L. T. 733; 44 W. R. 384: followed in
Liverpool and London and Globe Insurance
Co. V. Bennett, 80 L. J. K.B. 1269; [1911]
2 K.B. 577 ; 105 L. T. 162 ; 27 T. L.' R. 369.
Nuttall V. Staunton, 3 L.J. (o.s.) K.B. 135;
4 B. & C. 51 : distinguished in Lewis v.
Davies, 82 L. J. K.B. 631; [1913] 2 K.B. 37;
108 L. T. 606.
Nutter V. Accrington Local Board, 47 L. J.
Q.B. 521; 4 Q.B. D. 375 : dictum of Cockburn,
C.J., in, e.xplained and distinguished in
Stamford and Warrington {Earl), In re
{No. 2), 80 L. J. Ch. 361; [1911] 1 Ch. 648;
105 L. T. 12; 75 J. P. 346 ; 9 L. G. R. 719;
55 S. J. 483; 27 T. L. R. 356.
Oceana Development Co., In re, 56 S. J.
537 : principle of, applied in Victoria {Malaya)
Rubber Estates, In re, 58 S. J. 706.
Northern Counties of England Fire Insur- Odessa, The, 84 L. J. P. 112 ; [1915] P. 52 ;
ance Co., In re, 50 L. J. Ch. 273; 17 Ch. U. ' 112 L. T. 473; 59 S. J. 189; 31 T. L. R. 148 :
337; 44 L. T. 299: principle of valuation followed in The Linaria, 59 S. J. 530;
adopted in, is negatived in the case of com- 31 T. L. R. 396.
2086 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Offin V. Rochford Rural Council, 75 L. J.
Ch. 348; [1906] 1 Ch. 342; 94 L. T. 669;
61 W. E. 244: 4 L. G. R. 595; 70 J. P. 97 :
distinguished in Thornhill v. Weeks (No. 3),
84 L. J. Ch. 282; [1915] 1 Ch. 106; 111 L. T.
1067 ; 78 J. P. 154 ; 12 L. G. R. 597.
Ofner, In re, 78 L. J. Ch. 50; [1909] 1 Ch.
60; 99 L. T. 813 : followed in Halston, In re;
Ewen V. Halston, 81 L. J. Ch. 265; [1912]
1 Ch. 435; 106 L. T. 182.
Ogden V. Ogden, 77 L. .7. P. 34; [1908]
P. 46; 97 L. T. 827 ; 24 T. L. R. 94 : sugges-
tion of Court of Appeal in, adopted and
followed in Stathatos v. Stathatos, 82 L. J.
P. 34; [1913] P. 46; 107 L. T. 592; 56 S. J.
114; 29 T. L. R. 54 : and in De Montaigu v.
De Montaigu, 82 L. J. P. 125; [1913] P. 154;
109 L. T. 79 ; 57 S. J. 703 ; 29 T. L. R. 654.
Oilier V. Oilier, 84 L. J. P. 23; [1914]
P. 240; 111 L. T. 697; 58 S. J. 754 : con-
sidered and applied in Woodcock v. Woodcock,
111 L. T. 924.
Olpherts v. Coryton, [1913] 1 Ir. R. 211:
followed in Harris. In re; Davis v. Harris,
83 L. J. Ch. 841; [1914] 2 Ch. 395.
Orme, In re, 50 L. T. 51 : principle of,
applied in Beavan, In re, [1913] 2 Ch. 595;
109 L. T. 538.
Osborn v. Gillett, 42 L. J. Ex. 53; L. R.
S Ex. 88; 28 L. T. 197; 21 W. R. 409:
distinguished in Berry v. Humm, 84 L. J.
K.B. 918; [1915] 1 K.B. 627 ; 31 T. L. R. 198.
O'Shea v. O'Shea, 59 L. J. P. 47; 15 P. D.
59; 62 L. T. 713; 38 W. R. 374 : considered
in Law or Harnett (f Co., In re, 58 S. J. 656
followed in Scott v. Scott, 81 L. J. P. 113
[1912] P. 241 ; 107 L. T. 211 ; 56 S. J. 666
28 T. L. R. 526.
Osmond v. Campbell and Harrison, 75 L. J.
K.B. 1; [1905] 2 K.B. 852; 54 W. R. 117;
22 T. L. R. 4 : considered in Tamworth
Colliery Co. v. Hall, [1911] A.C. 665;
105 L. T. 449; 55 S. J. 615.
Osmond v. Mutual Cycle and Manufacturing
Co., 68 L. J. Q.B. 1027: [1899] 2 Q.B. 88;
81 L. T. 254 ; 48 W. R. 125 : distinguished in
Jones V. Llanrwst Urban Council (No. 2),
80 L. J. Ch. 338; [1911] 1 Ch. 393; 104 L. T.
53; 75 J. P. 98 : dictum of A. L. Smith, L.J.,
in, dissented from in Seal v. Turner, 84 L. J.
K.B. 1658 ; [1915] 3 K.B. 194 ; 113 L. T. 769 ;
59 S. J. 649.
Oxford Building and Investment Co., In re,
49 L. T. 495 : applied in Rubber and Produce
Investment Trust, In re. 84 L. J. Ch. 534;
[1915] 1 Ch. 382; 112 L. T. 1129; [1915]
H. B. R. 120; 31 T. L. R. 253.
P. Caland (Owners) v. Glamorgan Steam-
ship Co., 62 L. J. P. 41; [1893] A.C. 207;
68 L. T. 469; 7 Asp. M.C. 317: rule laid
down by Lord Herschell and Lord Watson in,
as to concurrent findings, considered in " Hat-
field " (Owners) v. " Glasgow " (Owners),
84 L. J. P. 161 ; 112 L. T. 708.
Paine, In re, [1891] W. N. 208 : followed in
Webb, In re; Board of Trade, ex parte,
83 L. J. K.B. 1386; [1914] 3 K.B. 387;
58 S. J. 581.
Paine v. Jones, 43 L. J. Ch. 787; L. R.
18 Eq. 320; 30 L. T. 779; 22 W. R. 807 :
considered and applied in Tennant's Estate,
In re, [1913] 1 Ir. R. 280.
Palace Hotel, Lim., In re, 81 L. J. Ch.
695; [1912] 2 Ch. 438; 107 L. T. 521;
19 Manson, 295; 56 S. J. 649: not followed
in Doecham Gloves, Lim.. In re, 82 L. J.
Ch. 165; [1913] 1 Ch. 226; 107 L. T. 817;
20 Manson, 79 : followed in Nordberg, In re,
84 L. J. Ch. 830; [1915] 2 Ch. 439; 69 S. J.
717; and in Schweppes Lim., hi re, 83 L. J.
Ch. 296; [1914] 1 Ch. 322; 110 L. T. 246:
21 Manson, 82 ; 58 S. J. 186 ; 30 T. L. R. 201.
Palmer v. Graves, 1 Keen, 545: followed in
Major, In re; Taylor v. Major, 83 L. J.
Ch. 461; [1914] 1 Ch. 278; 110 L. T. 422;
58 S. J. 286.
Panagotis v. " Pontiac " (Owners), 81 L.J.
K.B. 286; [1912] 1 K.B. 74; [1912] W.G.
Rep. 74; 105 L. T. 689; 12 Asp. M.C. 92;
56 S. J. 71 ; 28 T. L. R. 63 : distinguished in
Bonney v. Hoyle, 83 L. J. K.B. 541; [1914]
2 K.B. 257; 110 L. T. 729; 12 L. G. R. 368;
68 S. J. 268; 30 T. L. R. 280.
Panhaus v. Brown, 68 J. P. 435 : commented
on in Rex v. Registrar of Joint Stock Com-
panies; Boioen, Ex parte, 84 L. J. K.B. 229;
[1914] 3 K.B. 1161; 112 L. T. 38; 30 T. L. R.
707.
Pannell, In re; Bates, ex parte, 48 L. J.
Bk. 113; 11 Ch. D. 914: 41 L. T. 263:
followed in Victor v. Victor, 81 L. J. K.B.
354; [1912] 1 K.B. 247; 106 L. T. 887;
19 Manson, 63 ; 66 S. J. 204 ; 28 T. L. R. 131.
Paquin, Lim. v. Beauclerk, 75 L. J. K.B.
395; [1906] A.C. 148; 94 L. T. 350; 54 W. R.
521; 22 T. L. R. 396 : approved in Skeate v.
Slaters, Lim., 83 L. J. K.B. 676; [1914]
2 K.B. 429; 110 L. T. 604; 30 T. L. R. 290.
Paraguassu Steam Tramroad Co., In re;
Black & Co.'s Case, 42 L. J. Ch. 404; L. R.
8 Ch. 264; 27 L. T. 509: discussed and
E\1'I,M.\I:D, DiSTIN'dUISHKI), AND COMMENTED Ox.
2087
followed in Law Car and General Insurance
Corporation, In re, 81 L. J. Ch. 218; [1912]
1 Ch. 405: 106 L. T. 180; 19 Manson, 152;
56 B. J. 273.
Park's Settlement, In re; Foran v. Bruce,
83 L. J. Ch. 528: [1914] 1 Ch. 595: 110 L. T.
813: 58 S. J. 362 : not followprl in Bullock's
Will Trust, In re, 84 L. J. Ch. 463: [1915]
1 Ch. 493; 112 L. T. 1119; 59 S. J. 441.
Parker v. Talbot, 75 L. J. Ch. 8: [1905]
2 Ch. 643; 93 L. T. 522; 54 W. E. 132;
22 T. L. R. 10 : considered in London County
Council V. HanUns, 83 L. J. K.B. 460; [1914]
1 K.B. 490; 110 Tj. T. 389: 78 J. P. 137;
12 L. G. E. 314 : 30 T. L. E. 192.
Parkers, In re ; Sheppard, ex parte, 56 L. J.
Q.B. 338: 19 Q.B. D. 84: 57 L. T. 198;
35 W. R. 566; 4 Morrell, 135 : distinguished
and dictum of Cave. J., not followed in Kent
County Gas Light and Coke Co., In re,
82 L. J. Ch. 28: [1913] 1 Ch. 92; 107 L. T.
641; 19 Manson, 358; 57 S. J. 112.
Parkins, In re, 62 L. J. Ch. 531: [18931
1 Ch. 283: 67 li. T. 743; 41 W. E. 170 : distin-
guished in Holland. In re, [1914] 2 Ch. 595.
Parry, In re, 73 L. J. K.B. 83; [1904]
I K.B. 129: 89 L. T. 612; 52 W. E. 256;
II Manson, 18; 20 T. I.. E. 73 : distinguished
in Collins, In rr, 112 L. T. 87.
Parsons, In re; Stockley v. Parsons, 59 L.J.
Ch. 666; 45 Ch. D. 51 ; 62 L. T. 929 : followed
in Mudge, In re, 83 L. J. Ch. 243; [1914]
1 Ch. 115; 109 L. T. 781; 58 S. J. 117.
Payne v. Fortescue, 81 L. J. K.B. 1191;
[1912] 3 K.B. 346; [1912] W.C. Eep. 386;
107 L. T. 136 ; 57 S. J. 80 : discussed in
Sumnierlee Iron Co. v. Freeland, 82 L. J.
P.C. 102; [1913] A.C. 221; [1913] W.C. &
I. Rep. 302; 108 L. T. 465; 57 S. J. 281;
29 T. L. E. 277 : distinguished in Cooper v.
Wales. 84 L. J. K.B. 1321; [1915] 3 K.B.
210; [1915] W.C. & I. Rep. 307; 59 S. J.
578: 31 T. L. R. 506.
Pearce, In re; Alliance Assurance Co. v.
Francis, 83 L. J. Ch. 266: [1914] 1 Ch. 254;
110 L. T. 168; 58 S. J. 197 : commented on
and applied in Embury, In re. 111 L. T. 275;
58 S. J. 612.
Pearce v. Bolton, 71 L. J. K.B. 558; [1902]
2 K.B. Ill ; 86 L. T. 530 : followed in Lamb
V. Keeping, 111 L. T. 527; 58 S. J. 596.
Pearce v. Edmeades, 8 L. J. Ex. Eq. 61
3 Y. & C. 246 : considered in Tate, In re
Williamson v. Gilpin, 83 L. J. Ch. 593
[1914] 2 Ch. 182; 109 L. T. 621; 58 S. J.
119 : distinguished in Firth, In re; Loveridge
V. Firth, 83 L. J. Ch. 901; [1914] 2 Ch. 386;
111 L. T. 332.
Pearce v. Gardner, 66 L. .1. Q.B. 457;
[1897] 1 Q.B. 688; 76 L. T. 441; 45 W. R.
518 : applied in Last v. Hucklesby, 58 S. J.
431.
Pearks, Gunston & Tee v. Houghton,
71 L. J. K.B. 385; [1902] 1 K.B. 889;
86 L. T. 325 ; 50 W. R. 605 ; 66 .J. P. 422 :
followed in Batchelour v. Gee, 83 L. J. K.B.
1714; [1914] 3 K.B. 242: 111 I.. T. 256;
78 J. P. 362; 12 L. G. R. 931; 24 Cox C.C.
268; SOT. L. R. 506.
Pearson v. Dolman, 36 L. J. Ch. 258: L. R.
3 Eq. 315; 15 W. R. 120 : dictum of Wood,
V.C., in, approved in Nunburnholme (Lord).
In re, [1911] 2 Ch. 510; 56 S. J. 34.
Pearson's Trusts, In re, 26 L. T. 393:
20 W. R. 522 : was in effect overruled by
Norman v. Villars (46 L. J. Q.B. 579;
2 Ex. D. 359) : so held in Sinclair v. Fell,
82 L. J. Ch. 105 : [1913] 1 Ch. 155 ; 108 L. T.
152; 57 S. J. 145; 29 T. L. R. 103.
Pecko¥er v. Defries, 71 J. P. 38; considered
in Mellor v. Lydiate, 84 L. J. K.B. 8; [1914]
3 K.B. 1141; 111 L. T. 988; 79 J. P. 68;
30 T. L. E. 704.
Pekin, The, 66 L. J. P.C. 97; [1897] A.C.
532; 77 L. T. 443 : distinguished and explained
in The Olympic and H.M.S. Hawke, 84 L. J.
P. 49: [1915] A.C. 385; 112 L. T. 49;
31 T. L. E. 54.
Pemberton v. Hughes, 68 L. J. Ch., at
pp. 285 seq.; [1899] 1 Ch., at p. 790: rule
laid down by Lindley, M.E. , in, considered in
Scarpetta v.' Lowenfeld, 27 T. L. R. 509.
Penn v. Spiers and Pond, 77 L. .7. K.B.
542: [1908] 1 K.B. 766; 98 L. T. 541;
24 T. L. R. 354 : distinguished in Huscraft
V. Bennett. [1914] W.C. & I. Rep. 9;
110 L. T. 494; 58 S. J. 284.
Pennell v. Uxbridge Churchwardens,
31 L. J. M.C. 92; 8 Jur. N.S. 99 ; followed
and applied in Godman v. Crofton. 83 L. J.
K.B. 1524; [1914] 3 K.B. 803; ill L. T. 754;
79 J. P. 12; 12 L. G. R. 1330.
Perkins, In re; Bagot v. Perkins, 62 L. J.
Ch. 531; [1893] 1 Ch. 283; 67 L. T. 743:
followed in Fraser Settlement; Ind v. Fraser,
82 L. J. Ch. 406; [1913] 2 Ch. 224; 108 L. T.
960: 57 S. J. 462 ; considered in Wood, In re;
Wodeliouse v. Wood, 82 L. J. Ch. 203; [1913]
1 Ch. 303; 108 L. T. 31; 57 S. J. 265:
distinguished in Cavendish Settlement, In re,
81 L. J. Ch. 400; [1912] 1 Ch. 794; 106 L. T.
510; 56 S. J. 399; in Vatcher v. Paull,
84 L. J. P.C. 86; [1915] A.C. 372; 112 L. T.
737 ; and in Holland. In re. 84 L. J. Ch. 389;
[1914] 2 Ch. 595; 112 L. T. 27.
Perry v. Meddowcroft, 12 L. J. Ch. 104;
4 Beav. 197 : doubted in De Sommery. In re,
82 L. J. Ch. 17: [1912] 2 Ch. 622; 57 S. J.
78; and in Scott, In re, 84 L. J. Ch. 366;
[1915] 1 Ch. 592 ; 112 L. T. 1057 ; 31 T. L. R.
227.
'2088 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Perry v. Wright, 77 L. J. K.B. 236; [19081
1 K.B. 441 ; 98 L. T. 327 ; 24 T. L. R. 186 :
followed in Greenwood v. Nail if Co., 84 L. J.
K.B. 1356; [1915] 3 K.B. 97; [1915] W.C. &
I. Eep. 346; 113 L. T. 612; 59 S. J. 577;
31 T. L. R. 476.
Persse, In re, 55 S. J. 314 : followed in
Debtor (No. 1,838 of 1911), In re, 84 L. J.
K.B. 107; [1912] 1 K.B. 53; 105 L. T. 610;
19 Hansen , 12; 56 S. J. 36; 28 T. L. R. 9.
Peter v. Compton, Skinner, 353: distin-
guished in Hanau v. Ehrlicli, 81 L. J. K.B.
397; [1912] A.C. 39; 106 L. T. 1 : 56 S. J.
186 ; 28 T. L. R. 113.
Peter v. Stirling, 10 Cb. D. 279; 27 AV. R.
469 : distinguished in Scott, In re, 84 L. J.
Ch. 366 ; [1915] 1 Ch. 592 ; 112 L. T. 1057 ;
31 T. L. R. 227.
Peters v. Perry, 10 T. L. R. 366: explained
in SUate v. Slaters, Lim., 83 L. J. K.B. 676;
[1914] 2 K.B. 429 ; 110 L. T. 604 ; 30 T. L. R.
290.
Peto V. Blades, 5 Taunt. 657: observed upon
in Baylis v. Loyxdon (Bisliop), 82 L. J. Ch. 61;
[1913] 1 Ch. 127; 107 L. T. 730; 57 S. J. 96;
29 T. L. R. 59.
Pett V. Fellowes, 1 Swanst. 56l7z. : distin-
guished in West, In re; Westhead v. Aspland,
82 L. J. Ch. 488 ; [19131 2 Ch. 345 ; 109 L. T.
39.
Peverett, In the goods of, 71 L. J. P. 114:
[1902] P. 205; 87 L. T. 143: distinguished
in Strong v. Hadden, 84 L. J. P. 188; [1915]
P. 211; 112 L. T. 997; 31 T. L. R. 256.
Pfeiffer v. Midland Railway, 18 Q.B. D.
243; 35 W. R. 335: followed in Hughes v.
Dublin United Tramways Co., [1911] 2 Ir. R.
114.
Phillimore, In re; Philliraore v. Milnes,
73 L. J. Ch. 671; [1904] 2 Ch. 460; 91 L. T.
256 ; 52 W. R. 682 : applied in Trafford's
Settled Estates, In re, 84 L. J. Ch. 351;
[1915] 1 Ch. 9; 112 L. T. 107.
Phillips V. Batho, 82 L. J. K.B. 882; [1913]
3 K.B. 25; 109 L. T. 315; 29 T. L. R. 600 :
followed in Harris v. Taylor, 111 L. T. 564.
Phillips V. Beal, 32 Beav. 26: applied in
Fleetwood and District Electric Light dc. Co.,
In re, 84 L. J. Ch. 374; [1915] 1 Ch. 486;
112 L. T. 1127; [1915] H. B. R. 70; 59 S. J.
383; 31 T. L. R. 221.
Phillips V. Gutteridge, 32 L. J. Ch. 1:
3 De G. J. & S. 332 : applied and followed
in Buchanan, In re; Stephens v. Draper,
[1915] 1 Ir. R. 95.
Phillips V. Yickers, Son & Maxim, 81 L. J.
K.B. 123; [1912] 1 K.B. 16; 105 L. T. 564;
[1912] W.C. Rep. 71 : applied in Godbold v.
London County Council, 111 L. T. 691.
Phoenix Life Assurance Co., In re, 31 L. .J.
Ch. 749; 2 J. & H. 441; 9 Jur. (n.s.) 15;
7 L. T. 191 ; 10 W. R. 816 : distinguished
in Sinclair v. Brougham, 83 L. J. Ch. 465;
[1914] A.C. 398; 111 L. T. 1; 58 S. J. 302;
30 T. L. R. 315.
Picard, In re, 53 L. T. 293: discussed and
applied in Herbert v. Herbert, 81 Li. J. Ch.
733; [1912] 2 Ch. 268.
Piccadilly Hotel, In re, 81 L. J. Ch. 89:
[1911] 2 Ch. 534; 105 L. T. 775; 19 Hanson,
85; 56 S. J. 52 : followed in Locke and Smith,
In re, 83 L. J. Ch. 650; [1914] 1 Ch. 687:
110 L. T. 683 ; 58 S. J. 379.
Pickard, In re, 20 L. J. N.C. 124; 53 L. T.
293; [1885] W. N. 137: explained and fol-
lowed in Herbert v. Herbert, 81 L. J. Ch.
733 ; [1912] 2 Ch. 268.
Pickavance v. Pickavance, 70 L. J. P. 14 :
[1901] P. 60; 84 L. T. 62: statement in,
dissented from in Rex v. Tyrone Justices,
[1912] 2 Ir. R. 44 : commented on in Hopkins
V. Hopkins, 84 L. J. P. 26; [1914] P. 282;
112 L. T. 174 : considered in Davis v.
Morton, 82 L. J. K.B. 665; [1913] 2 K.B.
479; 108 L. T. 677; 77 J. P. 223; 23 Cox
C.C. 359; 29 T. L. R. 466.
Pickwick V. Gibbes, 1 Beav. 271 : distin-
guished and criticised in Palfreeman, In re;
Public Trustee v. Palfreeman, 83 L. J. Ch.
702; [1914] 1 Ch. 877; 110 L. T. 972;
58 S. J. 456.
Piddocke v. Burt, 63 L. J. Ch. 246 ; [1894]
1 Ch. 343; 70 L. T. 553; 42 W. R. 248:
distinguished in Gordon v. Holland, 82 L. J.
P.C. 81; 108 L. T. 385.
Pike, Ex parte, 47 L. J. Bk. 100; 8 Ch. D.
754; 38 L. T. 923; 26 W. R. 806 : followed in
O'Shea, In re; Lancaster, ex parte, 81 L. J.
K.B. 70 ; [1911] 2 K.B. 981 ; 105 L. T. 486.
Pimm, In re ; Sharpe v. Hodgson, 73 L. J.
Ch. 627; [1904] 2 Ch. 345; 91 L. T. 190;
.52 W. R. 648: applied in Briggs, In re;
Richardson v. Bantoft, 83 L. J. Ch. 874:
[1914] 2 Ch. 413; 58 S. J. 722.
Pine V. Barnes, 57 L. J. M.C. 28; 20 Q.B.
D. 221; 58 L. T. 520; 36 W. R. 473; 52 J. P.
199 : distinguished in Atkins v. Aqar, 83 L. J.
K.B. 265; [1914] 1 K.B. 26; 109 L. T. 891;
78 J. P. 7 ; 23 Cox C.C. 677 ; 30 T. L. R. 27.
Plant V. Bourne, 66 L. J. Ch. 643: [1897]
2 Ch. 281; 76 L. T. 820; 46 W. R. 59:
followed in Savory, Lim. \. " World of
Golf," Lim., 83 L. J. Ch. 824; [1914] 2 Ch.
566; 58 S. J. 707.
Play fair v. Cooper, 23 L. J. Ch. 341:
17 Beav. 187 : followed in Croxon, In re;
Ferrers v. Croxon, 84 L. J. Ch. 845 ; [1915]
2 Ch. 290; 59 S. J. 693.
1
Kxi'LAixKD, Distinguished, and Commknted Ox.
2089
Plumb V. Cobden Flour Mills Co., 83 L. J.
K.B. 197; [1914] A.C. 62: [1914] W.C. &
I. Rep. 48; 109 L. T. 759; 58 S. J. 184;
30 T. L. R. 174 : considered and applied in
Price V. Tredegar Iron and Coal Co., Ill L. T.
688; 58 S. J. 632; 30 T. L. R. 583 : followed
in Herbert v. Fox d Co., 84 L. J. K.B. 670;
[1915] 2 K.B. 81; [1915] W.C. & I. Rep.
154; 112 L. T. 833; 59 S. J. 249.
Plummer, In re, 69 L. J. Q.B. 936; [1900]
2 Q.B. 790; 83 L. T. 387; 48 W. R. 634;
7 Manson, 367 : followed in Branson, In re,
83 L. J. K.B. 1673; [1914] 3 K.B. 1086;
111 Tj. T. 741 ; 30 T. L. R. 604.
Plumpton V. Burkinshaw, 77 L. J. K.B.
961; [1908] 2 K.B. 572; 99 L. T. 415;
24 T. L. R. 642 : followed in E. G., In re,
83 L. J. Ch. 586 ; [1914] 1 Ch. 927 ; 111 L. T.
95; 58 S. J. 497.
Plumptre's Marriage Settlement, In re,
79 L. J. Ch. 340; [1910] 1 Ch. 609; 102 L. T.
315 ; 54 S. J. 326 ; 26 T. L. R. 321 : distin-
guished in PuUan v. Koe, 82 L. J. Ch. 37;
[1913] 1 Ch. 9 ; 107 L. T. 811 ; 57 S. J. 97 :
followed in Leigh-White v. Ruttledge, [1914]
1 Jr. R. 135.
Pointon v. Hill, 53 L. J. M.C. 62: 12 Q.B.
D. 306; 50 L. T. 268: discussed and com-
mented on in Mathers v. Pen fold, 84 L. J.
K.B. 627; [1915] 1 K.B. 514; 112 L. T. 726;
79 J. P. 225; 13 L. G. R. 359; 59 S. J. 235;
31 T. L. R. 108.
Pollitt, In re; Minor ex parte, 62 L. J.
Q.B. 236; [1893] 1 Q.B. 456; 68 L. T. 366;
41 W. R. 276; 10 Morrell, 35 : distinguished
in Thome d Son, Lim., In re, 84 L. J. Ch.
161 ; [1914] 2 Ch. 438 ; 112 L. T. 30 ; [1915]
H. B. R. 19; 58 S. J. 755.
Pollock V. Pendle, In re; Wilson &
Mathieson, Lim., ex parte, 87 L. T. 238: dis-
cussed in Godding, In re; Partridge, ex
parte, 83 L. J. K.B. 1222; [1914] 2 K.B. 70;
110 L. T. 207 ; 58 S. J. 221.
Poole, In re; Twisaday, ex parte, 7 Morrell,
222; 03 L. T. 321 : approved in Schenk, In re
West Hyde Estate Co., ex parte, 56 S. J. 651
followed in Debtor, In re, 81 L. J. K.B. 1225
[1912] 3 K.B. 242; 107 L. T. 506.
Pope, In re; Dicksee, ex parte, 77 L. J.
K.B. 767; [1908] 2 K.B. 169; 98 L. T. 775;
15 Manson, 201; 24 T. L. R. 556 : approved
in Collins, In re, 112 L. T. 87.
Pope V. Bavidge, 10 Ex. 73: not followed
in Dunford v. Campania Maritima Union,
104 L. T. 811; 16 Com. Cas. 181; 12 Asp.
M.C. 32; 55 S. J. 424.
Pope's Electric Lamp Co.'s Application, In
re, 80 L. J. Ch. 682; [1911] 2 Ch. 382;
105 L. T. 580 : point in, overruled in Teofani
d Co.'s Trade Mark, 82 L. J. Ch. 490; [1913]
2 Ch. 545; 109 L. T. 114.
Porter v. Freudenberg, 84 L. J. K.B. 1001 ;
[1915] 1 K.B. 857; 112 L. T. 313; 20 Com.
Cas. 189; 32 R. P. C. 109; 59 S. J. 216;
31 T. L. R. 162 : applied in Wilson d Wilson,
In re, 84 L. J. K.B. 1893.
Potts, In re ; Taylor, ex parte, 62 L. J. Q.B
392; [1893] 1 Q.B. 648; 69 L. T. 74 r
41 W. R. 337; 10 Morrell, 52 : distinguished
in Gershon d Levy, In re, 84 L. J. K.B.
1668; [1915] 2 K.B. 527; 59 S. J. 440.
Pouey V. Hordern, 69 L. J. Ch. 231 ; [1900]
1 Ch. 492; 82 L. T. 51 : considered in Pryce^
In re; Laivford v. Pryce, 80 L. J. Ch. 525;
[1911] 2 Ch. 286; 105 L. T. 51.
Powell V. Morgan, 2 Vern. 90: applied in
Williams, In re, 81 L. J. Ch. 296; [1912]
1 Ch. 399; 106 L. T. 584; 56 S. J. 325.
Poyser, In re; Landon v. Poyser, 77 L J
Ch. 482 ; [1908] 1 Ch. 828 ; 99 L. T. 50 :
followed in Craven, In re; Watson v. Craven,
83 L. J. Ch. 403; [1914] 1 Ch. 358; 109 L. T.
846; 58 S. J. 138; and in Forster-Brown, In
re, 84 L. J. Ch. 361; [1914] 2 Ch. 584;
112 L. T. 681.
Preston v. Guyon or Grand Collier Dock
Co., 10 L. J. Ch. 73; 11 Sim. 327: followed
in Galloway v. HalU Concerts Society,
84 L. J. Ch. 723; [1915] 2 Ch. 233; 59 S. J.
613; 31 T. L. R. 469.
Preston v. Tunbridge Wells Opera House,
72 L. J. Ch. 774; [1903] 2 Ch. 323:
88 L. T. 53 : followed in Yorkshire Insurance
Co. V. Metropolitan Amalgamated Estates Co.,
81 L. J. Ch. 745; [1912] 2 Ch. 497.
Price v. North, 11 L. J. Ch. 68; 1 Ph. 85:
distinguished in Major, In re; Taylor v.
Major, 83 L. J. Ch. 461; [1914] 1 Ch. 278:
110 L. T. 422; 58 S. J. 286.
Price v. Union Lighterage Co., 73 L. J.
K.B. 222: [1904] 1 K.B. 412: 89 L. T. 731:
52 W. R. 325; 9 Com. Cas. 120; 20 T. L. R.
177 : distinguished in Travers v. Cooper,
83 L. J. K.B. 1787; [1915] 1 K.B. 73;
111 L. T. 1088 : 20 Com. Cas. 44; 30 T. L. K.
703.
68
2090 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Priestley v Fernie, 34 L. J. Ex. 172; 3 H. 319 : discussed in Cardiff Corporation v. Hall,
& C. 977: followed and applied in Sullivan \ 80 L. J. K.B. 644; [1911] 1 K.B. 1009;
V. Sullivan, [1912] 2 Ir. R. 116. 104 L. T. 467; 27 T. L. R. 339.
Prince v. Cooper, 17 Beav. 187 : followed
in Croxon, In re, 84 L. J. Ch. 845; [1915]
2 Ch. 290; 59 S. J. 693.
Printers' and Transferors' Amalgamated
Trades Protection Society, In re, 68 L. J. Ch.
537; [1899] 2 Ch. 184; 47 W. E. 619 : con-
sidered in Tierney v. Tough, [1914] 1 Ir. R.
142.
Proctor V. Robinson, 80 L. J. K.B. 641
[1911] 1 E.B. 1004 : considered in Silcock v
GoUghtly, 84 L. J. K.B. 499; [1915] 1 K.B
748; [1915] W.C. & I. Rep. 164; 112 L. T
800 : discussed in Cardiff Corporation v. Hall
80 L. J. K.B. 644; [1911] 1 K.B. 1009
104 L. T. 467 ; 27 T. L. R. 339 : considered
in Carlin v. Stephen, [1911] S. C. 901.
Proudfoot V. Hart, 59 L. J. Q.B. 389;
25 Q.B. D. 42; 63 L. T. 171 : followed in
Lurcott V. Wakeley, 80 L. J. K.B. 713;
[1911] 1 K.B. 905; 104 L. T. 290; 55 S. J.
290.
Prudential Insurance Co. v. Inland Revenue
Commissioners, 73 L. J. K.B. 734: [19041
2 K.B. 658; 91 L. T. 520; 53 W. R. 108;
20 T. L. R. 621 : followed in Joseph v. Law
Integrity Insurance Co., 82 L. J. Ch. 187;
[1912] 2 Ch. 581; [1913] W.C. & I. Rep.
337; 107 L. T. 538; 20 Manson, 85 : dictum
of Channel, J., in, disapproved in Gould v.
Curtis, 82 L. J. K.B. 802 ; [1913] 3 K.B. 84 ;
108 L. T. 779; 57 S. J. 461; 29 T. L. R. 469.
Punt V. Symons, 72 L. J. Ch. 768; [1903]
2 Ch. 506 ; 89 L. T. 525 ; 52 W. R". 41 :
was overruled by the Court of Appeal in
Bailey v. British Equitable Assurance Co.
(73 L. J. Ch. 240; [1904] 1 Ch. 374); and
the reversal of the latter decision by the
House of Lords (75 L. J. Ch. 73; [1906]
A.C. 35) was not due to any dissent from the
principle enunciated by the Court of Appeal,
which indeed was recognised by the House
of Lords : so held in British Murac Syndicate
V. Alverton Rubber Co., 84 L. J. Ch. 665;
[1915] 2 Ch. 186; 59 S. J. 494; 31 T. L. R.
391.
Pycroft V. Gregory, 4 Russ. 526 : distin-
guished in Soper, In re, 81 L. J. Ch. 826;
[1912] 2 Ch. 467 ; 107 L. T. 525.
Radcliffe v. Pacific Steam Navigation Co.,
79 L. J. K.B. 429; [1910] 1 K.B. 685;
102 L. T. 206; 54 S. J. 404; 26 T. L. R.
Radford & Bright, Lim., In re, 70 L. J.
Ch. 78, 352; [1901] 1 Ch. 272, 735; 84 L. T.
150 : suggestion in, acted on in Rubber and
Produce Investment Trust, In re, 84 L. J. Ch.
534; [1915] 1 Ch. 382; 112 L. T. 1129; [1915]
H. B. R. 120; 31 T. L. R. 253.
Railton v. Mathews, 12 CI. & F. 934: ap-
plied in London General Omnibus Co. v.
Holloway, 81 L. J. K.B. 603; [1912] 2 K.B.
72; 106 L. T. 502.
Raine, In the goods of, 1 Sw. & Tr. 144:
commented on in Walker v. Gaskill, 88 L. J.
P. 152; [1914] P. 192: 111 L. T. 941;
59 S. J. 45; 30 T. L. R. 637.
Raleigh v. Goschen, 67 L. J. Ch. 59; [1898]
1 Ch. 73; 77 L. T. 429; 46 W. R. 90 : applied
in Roper v. Works and Public Buildings Com-
missioners, 84 L. J. K.B. 219; [1915] 1 K.B.
45 ; 111 L. T. 630.
Ralli V. Universal Marine Insurance Co.,
31 L. J. Ch. 313; 4 De G. F. & J. 1 : distin-
guished in Strass v. Spillers d- Bakers,
80 L. J. K.B. 1218; [1911] 2 K.B. 759;
104 L. T. 284; 16 Com. Cas. 166.
Ramsden v. Dyson, L. R. 1 H.L. 129 : con-
sidered in Ramsden v. Inland Revenue Com-
missioners, 82 L. J. K.B. 1290; [1913] 3 K.B.
580n.
Handle v. Clay Cross Co., 83 L. J. K.B.
167; [1913] 3 K.B. 795; 109 L. T. 522;
29 T. L. R. 624 : point in, overruled in Barwell
V. Newport Abercarn Black Vein Steam Coal
Co., 84 L. J. K.B. 1105; [1915] 2 K.B. 256;
112 L. T. 806; 59 S. J. 233; 31 T. L. R. 136.
Rankine v. Alloa Coal Co., 6 Fraser, 375;
41 Sc. L. R. 306 : dicta of Lord Adam in, not
followed in Edgerton v. Moore, 81 L. J. K.B.
696; [1912] 2 K.B. 308; 106 L. T. 663.
Ravensworth v. Tindale, 74 L. J. Ch. 353:
[1905] 2 Ch. 1 ; 92 L. T. 490 ; 21 T. L. R. 357 :
distinguished in Sheffield (Earl), In re; Ryde
V. Bristow, 80 L. J. Ch. 521 ; [1911] 2 Ch. 267.
Raymond, In re, 9 Morrell, 108m. ; 66 L. T.
400 : distinguished in Renison, In re; Greaves,
ex parte, 82 L. J. K.B. 710; [1913] 2 K.B.
300 ; 108 L. T. 811 ; 20 Manson, 115 ; 57 S. J.
445.
Rayson v. South London Tramways, 62 L. J.
Q.B. 593; [1893] 2 Q.B. 304; 69 L. T. 491;
42 W. R. 21 : distinguished in Wiffen v.
Bailey, 84 L. J. K.B. 688; [1915] 1 K.B.
600 ; 112 L. T. 274 ; 79 J. P. 145 ; 13 L. G. R.
121; 59 S. J. 176; 31 T. L. R. 64.
Explained, Distinguished, and Commented Ox.
2091
Redhill Gas Co. v. Reigate Rural Council,
80 L. J. K.B. 1062; [1911] 2 K.B. 565;
105 L. T. 24; 75 J. P. 358; 9 L. G. E. 814 :
followed and applied in Postmaster-General v.
Hendon Urban Council, 82 L. J. K.B. 1081 ;
[1913] 3 K.B. 451 ; 109 L. T. 479 ; 11 L. G. E.
849; 29 T. L. E. 683.
Rees, In the goods of, [1896] W. N. 57;
followed in Cope v. Beyinett, [1911] 2 Ch. 488;
105 L. T. 641; 55 S. J. 621, 725.
Reg. V. Bailey, 4 Cox C.C. 390: followed in
Rex V. Brixton Prison (Governor); Sjoland
and Metzler, Ex parte, 82 L. J. K.B. 5;
[1912] 3 K.B. 568; 29 T. L. E. 10.
Reg. V. Beckley, 57 L. J. M.C. 22; 20 Q.B.
D. 187; 57 L. T. 716; 36 W. E. 160;
16 Cox C.C. 331; 52 J. P. 120 : approved and
followed in Rex v. Beacontree Justices,
84 L. J. K.B. 2230; [1915] 3 K.B. 388;
13 L. G. E. 1094; 31 T. L. E. 509.
Reg. V. Berger, 63 L. J. Q.B. 529; [1894J
1 Q.B. 823; 70 L. T. 807; 42 W. E. 541;
58 J. P. 416 : statement of Cave, J., in,
considered too wide by Hamilton, L.J., in
Att.-Gen. v. Horner (No. 2), 82 L. J. Ch.
839; [1913] 2 Ch. 140; 108 L. T. 609;
77 J. P. 257; 11 L. G. E. 784; 57 S. J. 498;
29 T. L. E. 461.
Reg. V. Blane, 18 L. J. M.C. 216; 13 Q.B.
769 : discussed and distinguished in Rex v.
Humphreys ; Ward, Ex parte, 84 L. J. K.B.
187; [1914] 3 K.B. 1237; 111 L. T. 1110;
79 J. P. 66; 30 T. L. E. 698.
Reg. V. Brighton, 18 Cox C.C. 535: over-
ruled in Rex v. Shellaker, 83 L. J. K.B. 413;
[1914] 1 K.B. 414; 110 L. T. 351; 78 J. P.
159; 30 T. L. E. 194.
Reg. V. Brown, 64 L. J. M.C. 1; [1895]
1 Q.B. 119; 72 L. T. 22; 43 W. E. 222;
59 J. P. 485 : distinguished in Taylor v.
Monk, 83 L. J. K.B. 1125 ; [1914] 2 K.B. 817 ;
110 L. T. 980; 78 J. P. 194 ; 30 T. L. E. 367.
Reg. V. Buckmaster, 57 L. J. M.C. 25;
20 Q.B. D. 182; 57 L. T. 720; 36 W. E. 701;
16 Cox C.C. 339; 52 J. P. 358 : approved and
followed in Rex v. Hilliard, 83 L. J. K.B.
439; 109 L. T. 750; 23 Cox C.C. 617.
Reg. V. Cox, 54 L. J. M.C. 41; 14 Q.B. D.
153 ; 52 L. T. 25 ; 33 W. E. 396 ; 15 Cox C.C.
611; 49 J. P. 374 : followed in Rex v. Smith,
84 L. J. K.B. 2153; 59 S. J. 704; 31 T. L. E.
617.
Reg. V. Cutbush, 36 L. J. M.C. 70; L. E.
2 Q.B. 379: considered in Reg. v. Martin;
Smythe, Ex parte, 80 L. J. K.B. 876; [1911]
2 K.B. 450; 75 J. P. 425; 27 T. L. E. 460.
Reg. V. Danger, Dears. & B. 307: doubted
in Rex v. Brixton Prison (Governor) ; Stall-
man, In re, 82 L. J. K.B. 8: [1912] 3 K.B.
424 ; 107 L. T. 553; 28 T. L. E. 572.
Reg. V. Eagleton, 24 L. J. M.C. 158, 166;
Dears. C.C. 515, 538 : dictum of Parke, B., in,
approved and followed in Rex v. Robinson,
84 L. J. K.B. 1149; [1915] 2 K.B. 342;
79 J. P. 303; 59 S. J. 366; 31 T. L. E. 313.
Reg. V. Ganz, 51 L. J. Q.B. 419; 9 Q.B. D.
93; 46 L. T. 592 : followed in Rex v. Brixton
Prison (Governor) ; Wells, Ex parte, 81 L. J.
K.B. 912; [1912] 2 K.B. 578; 107 L. T. 408;
76 J. P. 310; 28 T. L. E. 405.
Reg. V. Gloster, 16 Cox C.C. 471 : approved
in Rex v. Thomson, 81 L. J. K.B. 892;
[1912] 3 K.B. 19; 28 T. L. E. 478.
Reg. V. Glynne, 41 L. J. M.C. 58; L. E.
7 Q.B. 16; 26 L. T. 61; 20 W. E. 94 : con-
sidered in McGregor v. Telford, 84 L. J. K.B.
1902; [1915] 3 K.B. 237; 113 L. T. 84;
31 T. L. E. 512.
Reg. V. Grant or Gaunt, 36 L. J. M.C. 89;
L. E. 2 Q.B. 466 ; 8 B. & S. 365 ; 16 L. T. 379 ;
15 W. E. 1172 : considered in McGregor v.
Telford, 84 L. J. K.B. 1902 ; [1915] 3 K.B.
237; 113 L. T. 84; 31 T. L. E. 512.
Reg. V. Hensler, 22 L. T. 691 : followed in
Rex V. Light, 84 L. J. K.B. 865; 112 L. T.
1144 ; 59 S. J. 351 ; 31 T. L. E. 257.
Reg. V. Hopkins, 62 L. J. M.C. 57 ; [1893]
1 Q.B. 621; 68 L. T. 292; 41 W. E. 431;
57 J. P. 152 : applied in Rex v. Leach;
Fritchley, ex parte, 82 L. J. K.B. 897; [1913]
3 K.B. 40; 109 L. T. 313; 77 J. P. 255;
29 T. L. E. 569.
Reg. V. Hughes, Bell C.C. 242: followed in
Rex V. Goodspeed, 75 J. P. 232; 55 S. J. 273;
27 T. L. E. 255.
Reg. V. Johnson, Car. & M. 218: distin-
guished in Rex v. Chandler, 82 L. J. K.B. 106 ;
[1913] 1 K.B. 125; 108 L. T. 352; 77 J. P. 80;
23 Cox C.C. 330; 57 S. J. 160; 29 T. L. E. 83.
Reg. V. King, 66 L. J. Q.B. 87; [1897]
1 Q.B. 214; 75 L. T. 392; 61 J. P. 329;
18 Cox C.C. 447 : explained and distinguished
in Rex v. Barron, 83 L. J. K.B. 786; [1914]
2 K.B. 670; 78 J. P. 311; 58 S. J. 557;
30 T. L. E. 422.
Reg. V. Langmead, 10 L. T. 350: followed
in Rex v. Curnock, 111 L. T. 816.
Reg. V. Local GoYernment Board, 52 L. J.
M.C. 4 ; 10 Q.B. D. 309 ; 48 L. T. 173 : applied
in Rex v. Local Government Board; Thorp,
Ex parte, 84 L. J. K.B. 1184; 112 L. T. 860;
79 J. P. 248; 13 L. G. E. 402.
2092 Cases Followed, Not Followed, Approved, Overruled, Questioned,
1
Reg. T. Machen, 18 L. J. M.C. 213; 14 Q.B.
74 : explained in McGregor v. Telford, 84 L. J.
K.B. 1902; [1915] 3 K.B. 237; 113 L. T. 84;
31 T. L. R. 512.
Reg. V. Martin, 36 L. J. M.C. 20; L. R.
1 C.C.R. 56; 15 L. T. 54; 15 W. R. 358;
10 Cox C.C. 383 : followed in Rex v. Moreton,
109 L. T. 417 ; 23 Cox C.C. 560.
Reg. V. OUis, 69 L. J. Q.B. 918; [1900]
2 Q.B. 758; 83 L. T. 251; 49 W. R. 76;
64 J. P. 518 : followed in Rex v. Shellaker,
83 L. J. K.B. 413; [1914] 1 K.B. 414;
110 L. T. 351; 78 J. P. 159; 30 T. L. R. 194.
Reg. V. Plenty, 38 L. J. Q.B. 205: L. R.
4 Q.B. 346; 9 B. & S. 386; 20 L. T. 521;
17 W. R. 792 : followed in Rex v. Casey,
[1914] 2 Ir. R. 243.
Reg. V. Pratt, 24 L. J. M.C. 113: 4 E. & B.
860 : dicta in, followed in Pratt v. Martin,
80 L. J. K.B. 711 ; [1911] 2 K.B. 90 ; 105 L. T.
49; 75 J. P. 328; 27 T. L. R. 377.
Reg. V. Riley, 65 L. .T. M.C. 74: ri8961
1 Q.B. .309: 74 L. T. 254: 44 W. R. 318;
60 J. P. 519; 18 Cox C.C. 285 : followed in
Rex V. Cade, 83 L. J. K.B. 796; [1914]
2 K.B. 209; 110 L. T. 624; 78 J. P. 240;
58 S. J. 288; 30 T. L. R. 289.
Reg. V. Rothwell, 12 Cox C.C. 145, was an
extreme case and should not be expanded : so
held in Rex v. Birchall, 29 T. L. R. 711.
Reg. V. Saddlers Co., 32 L. J. Q.B. 337:
10 H.L. C. 404 : considered in London and
Counties Assets Co. v. Brighton Grand Con-
cert Hall and Picture Palace. 84 L. J. K.B.
991; [1915] 2 K.B. 493: 112 L. T. 380;
[1915] H. B. R. 83.
Reg V. Southport (Mayor) and Morris (or
Southport Corporation v. Morriss), 62 L. J.
M.C. 47; [1893] 1 Q.B. 359; 68 L. T. 221 : j
considered in Weeks v. Ross, 82 L. J. K.B. |
925: [1913] 2 K.B. 229; 108 L. T. 423;
77 J. P. 182; 23 Cox C.C. 337; 29 T. L. R.
369.
Reg. V. Staines Local Board, 60 L. T. 261:
53 J. P. 358 : is inconsistent with the decision
of the Court of Appeal in Kirkheaton District
Local Board v. Ainley (61 L. J. Q.B. 812;
[1892] 2 Q.B. 274) is not binding : so held by
Avory, J., in Rochford Rural Council v. Port
of London Authority, 83 L. J. K.B. 1066;
[1914] 2 K.B. 916 ; 78 J. P. 329.
Reg. V. Thomas, 7 E. & B. 399: disapproved
in Cababe v. Walton-upon-Thames Urban
Council, 83 L. J. K.B. 243: [1914] A.C. 102;
110 L. T. 674 ; 78 J. P. 129 ; 12 L. G. R. 104 :
58 S. J. 270.
Reg. V. Welsh, U Cox C.C. 336: followed
in Rex v. Le.^hird. 84 L. J. K.B. 1102: [1911]
3 K.B. 1116: 112 L. T. 175.
Reg. v. Westmoreland County Court Judge,
36 W. R. 477 : distinguished in McArdle v.
Kane, [1915] 1 Ir. R. 259.
Reg. V. White, 1 Den. C. C. 208: distin-
guished in Morison v. London County and
Westminster Bank, 83 L. J. K.B. 1202;
[1914] 3 K.B. 356; 111 L. T. 114; 19 Com.
Cas. 273; 58 S. J. 453; 80 T. L. R. 481.
Reg. V. Wiley, 20 L. J. M.C. 4, 9; 4 Cox
C.C. 414, 421 : dictum of Patteson, J., in,
approved in Rex \. Berger, 84 L. J. K.B. 541;
31 T. L. R. 159.
Reg. V. Wimbledon Local Board, 51 L. J.
Q.B. 219; 8 Q.B. D. 459; 46 L. T. 47;
30 W. R. 400; 46 J. P. 292: followed in
Shaw V. Tati Concessions, 82 L. J. Ch. 159;
[1913] 1 Ch. 292; 108 L. T. 487; 20 Manson,
104 ; 57 S. J. 322 ; 29 T. L. R. 261.
Registrar of Trade Marks v. Du Cros,
83 L. J. Ch. 1; [1913] A.C. 624; 109 L. T.
687 ; 30 R. P. C. 60 ; 57 S. J. 728 ; 29 T. L. R.
772 : applied in British Milk Products Co.'s
Application, In re, 84 L. J. Ch. 819; [1915]
2 Ch. 202; 32 R. P. C. 453.
Renfrew v. M'Crae, [1914] W.C. & I. Rep.
195 ; [1914] 1 S. L. T. 354 : distinguished in
Williams v. Llandudno Coaching and Carriage
Co., 84 L. J. K.B. 655; [1915] 2 K.B. 101;
[1915] W.C. & I. Rep. 91; 112 L. T. 848;
59 S. J. 286; 31 T. L. R. 186.
Revell, Ex parte ; ToUemache, in re {No. 2) ,
13 Q.B. D. 727 : distinguished in Peel, In re;
Honour, ex parte, 57 S. J. 730.
Rex V. Alexander, 109 L. T. 745: followed
in Rex v. Lcsbini, 84 L. J. K.B. 1102 ; [1914]
3 K.B. 1116; 112 L. T. 175.
Rex V. Bond, 75 L. J. K.B. 693; [1906]
2 K.B. 389; 95 L. T. 296; 54 W. R. 586;
70 -J. P. 424; 21 Cox C.C. 252; 22 T. L. R.
633 : considered in Perkins v. Jeffery, 84 L. J.
K.B. 1554; [1915] 2 K.B. 702; 79 J. P. 425;
31 T. L. R. 444.
Rex V. Bridgwater, 74 L. J. K.B. 35:
[1905] 1 K.B. 131; 91 L. T. 838; 53 W. R.
415 ; 69 J. P. 26 ; 21 T. L. R. 69 : distinguished
in Rex v. Hudson, 81 L. J. K.B. 861; [1912]
2 K.B. 464: 107 L. T. 31; 56 S. J. 574;
28 T. L. R. 459.
Rex V. Carlisle, 6 Car. & P. 636: discussed
and followed in Lyons v. Gulliver, 83 L. J.
Ch. 281; [1914] 1 Ch. 631; 110 L. T. 284;
78 J. P. 98; 12 L. G. R. 194; 58 S. J. 97;
30 T. L. R. 75.
Rex V. Clerkenwell Commissioners of Income
Tax, 70 L. J. K.B. 1010: [1901] 2 K.B. 879;
85 L. T. 503; 65 J. P. 724 : observation of
Stirling, L.J., in, considered and applied in
Rex V. Kensington Income Tax Commis-
sioners, 83 L. J. K.B. 1439; [1914] 3 K.B.
429; 111 L. T. 393: 30 T. L. R. 574.
ExPi.AiNKD, Distinguished, and Commexted Ox.
2093
Rex V. Daye, 77 L. J. K.B. 659; [1908)
2 K.B. 333; 99 L. T. 165; 72 J. P. 269:
applied iu Forbes v. Samuel, 82 L. J. K.B.
1135; [1913] 3 K.B. 706; 109 L. T. 599;
29 T. L. E. 544.
Rex V. Everest, 2 Cr. App. Rep. 130: fol-
lowed in Rex v. Cohen, 111 L. T. 77.
Rex V. Fisher, 79 L. J. K.B. 187; [1910]
1 K.B. 149; 102 L. T. Ill; 74 J. P. 104;
26 T L. R. 122 : approved and applied in
Rex V. Kurasch, 84 L. J. K.B. 1497; [1915]
2 K.B. 749; 79 J. P. 399.
Rex V. Hamilton, 9 Cr. App. Rep. 89: con-
sidered in Rex v. Crowley, 83 L. J. K.B. 298;
nOL. T. 127; 30 T. L. R. 94.
Rex V. Hudson, 81 L. J. K.B. 861 ; [1912]
2 K.B. 464; 107 L. T. 31; 76 J. P. 421;
66 S. J. 574; 28 T. L. R. 459 : followed in
Rex V. Watson, 109 L. T. 335; 29 T. L. R.
450.
Rex V. Ireland, 79 L. J. K.B. 338; [1910]
1 K.B. 654; 102 L. T. 608; 74 J. P. 206;
54 S. J. 543 ; 26 T. L. R. 267 : approved in
Rex V. Machardy, 80 L. J. K.B. 1215; [1911]
2 K.B. 1144; 105 L. T. 556; 55 S. J. 754;
28 T L. R. 2 ; overruled in Felstead v. Regem,
83 L. J. K.B. 1132; [1914] A.C. 534; 78 J. P.
313; 58 S. J. 534; 30 T. L. R. 469.
Rex V. Jefferson, 24 T. L. R. 877 : followed
in Rex V. Gilbert, 84 L. J. K.B. 1424;
112 L. T. 479.
Rex V. Johnson, 78 L. J. K.B. 290; [1909]
1 K.B. 439; 100 L. T. 464; 73 J. P. 135;
53 S. J. 288; 25 T. L. R. 229 : followed in
Rex V. Evans, 84 L. J. K.B. 1603; [1915]
2 K.B. 762; 79 J. P. 415; 59 S. J. 496;
31 T. L. R. 410.
Rex V. Joiner, 74 J. P. 200: semble, the
Court will not follow, in view of the decisions
in Rex v. Pearson (72 J. P. 449) and Rex v.
George (73 J. P. 11) : so held in Rex v. Eraser,
76 J. P. 168.
Rex V. Kerrison, 3 M. & S. 526 : distin-
guished in Sharpness New Docks and Gloucester
and Birmingham Navigation Co. v. Att.-Gen.,
84 L. J. K.B. 907 ; [1915] A.C. 654 ; 112 L. T.
826; 79 J. P. 305; 13 L. G. R. 563; 59 S. J.
381 ; 31 T. L. R. 254.
Rex V. Leake, 5 B. & Ad. 469: followed in
Arnold v. Morgan, 80 L. J. K.B. 955; [1911]
2 K.B. 314; 103 L. T. 763; 75 J. P. 105;
9 L. G. R. 917.
Rex V. London Justices, 68 L. J. Q.B. 383;
[1899] 1 Q.B. 532; 80 L. T. 286; 47 W. R.
316; 63 J. P. 388 : applied in Rex v. Lincoln-
shire Justices, 81 L. J. K.B. 967; [1912]
2 K.B 413 ; 76 J. P. 311 ; 10 T.. G. R. 703.
Rex V. Londonderry Justices, [1912] 2Ir.R.
874 : explained in Rex v. Monaghan Justices,
[1914] 2 Ir. R. 156.
Rex V. Machardy, 80 L. J. K.B. 1215;
[1911] 2 K.B. 1114; 105 L. T. 556; 55 S. J.
754; 28 T. L. R. 2 : followed, but reasoning of
decision disapproved in Eelstead v. Regem,
83 L. J. K.B. 1132 ; [1914] A.C. 534 ; 78 J. P.
313; 58 S. J. 534; 30 T. L. R. 469.
Rex V. Metropolitan Police Commissioner;
Pearce, Ex parte, 80 L. J. K.B. 223; 104 L. T.
135; 75 J. P. 85 : overruled in Rex v. Metro-
politan Police Commissioner ; Holloway, Ex
parte, [1911] 2 K.B. 1131; 105 L. T. 532;
55 S. J. 773; 27 T. L. E. 573; 75 J. P. 490.
Rex V. Middlesex Justices, 1 L. .J. M.C. 5 ;
2 B. & Ad. 818 : approved in British Columbia
Electric Railioay v. Stewart, 83 L. .7. P.C. 53;
[1913] A.C. 816; 109 L. T. 771.
Rex v. Moore, 1 L. J. M.C. 30 ; 3 B. & Ad.
184 : discussed and followed in Lyons v.
Gulliver, 83 L. J. Ch. 281 ; [1914] 1 Ch. 631 ;
110 L. T. 284; 78 J. P. 98; 12 L. G. R. 194;
58 S. J. 97; 30 T. L. R. 75.
Rex V. Munday, 2 Leach C.C. 991 : followed
in Rex V. Richards, 80 L. J. K.B. 174; [1911]
1 K.B. 260; 104 L. T. 48; 75 J. P. 144.
Rex V. Norfolk County Council, 70 L. J.
K.B. 575 ; [1901] 2 K.B. 268 ; 84 L. T. 822 ;
49 W. R. 543; 65 J. P. 454 : distinguished in
Thornhill v. Weeks {No. 3), 84 L. J. Ch. 282;
[1915] 1 Ch. 106; 111 L. T. 1067; 78 J. P.
154; 12 L. G. R. 597.
Rex V. Norton, 79 L. J. K.B. 756; [1910]
2 K.B. 496; 102 L. T. 926; 74 J. P. 375;
54 S. J. 602 ; 26 T. L. R. 550 : discussed and
explained in Director of Public Prosecutions v.
Christie, 83 L. J. K.B. 1097 ; [1914] A.C. 545 ;
111 L. T. 220; 78 J. P. 321; 24 Cox C.C. 249;
58 S. J. 515; 30 T. L. R. 471.
Rex V. Palmer, 82 L. J. K.B. 531; [1913]
2 K.B. 29; 108 L. T. 814; 77 J. P. 340;
23 Cox C.C. 377 ; 29 T. L. R. 349 : com-
mented on in Rex v. Greening, [1913] 3 K.B.
846; 29 T. L. R. 732.
Rex V. Preston, 78 L. J. K.B. 335 ; [1909]
1 K.B. 568; 100 L. T. 303; 73 J. P. 173;
53 S. J. 322; 25 T. L. R. 280 : distinguished in
Rex V. Hudson, 81 L. J. K.B. 861; [1912]
2 K.B. 464; 107 L. T. 31; 56 S. J. 574;
28 T. L. R. 459.
Rex V. Rodley, 82 L. J. K.B. 1070; [1913]
3 K.B. 468; 109 L. T. 476; 77 J. P. 465;
58 S. J. 51; 29 T. L. R. 700 : approved and
applied in Kex v. Kurasch, 84 L. J. K.B. 1497;
[1915] 2 K.B. 749; 79 J. P. 399.
2094 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Rex V. Russell, 5 L. J. (o.s.) M.C. 80;
6 B. & C. 566 : discussed in Denaby and
Cadeby Main Collieries v. Anson, 80 L. J.
K.B. 320; [1911] 1 K.B. 171; 103 L. T. 349;
11 Asp. M.C. 471; 54 S. J. 748; 26 T. L. E.
667.
Rex V. Southampton Justices; Cardy, ex
parte, 75 L. J. K.B. 295: [1906" 1 K.B. 446;
94 L. T. 437; 54 W. E. 484; 70 J. P. 175;
22 T. L. E. 236 : followed in Nicholas v.
Davies, 83 L. J. K.B. 1137; [1914] 2 K.B.
705 ; 111 L. T. 56 ; 78 .T. P. 207 : 30 T. L. E.
388.
Rex V. Southwark Assessment Committee,
78 L. J. K.B. 319; [1909] 1 K.B. 274;
110 L. T. 136; 73 J. P. 75 ; 7 L. G. E. 287;
25 T. L. E. 144 : applied in Rex v. Shoreditch
Assessment Committee, 80 L. J. K.B. 185;
[1910] 2 K.B. 859; 103 L. T. 262; 74 J. P.
361 ; 8 L. G. E. 744 ; 26 T. L. E. 663.
Rex V. Thame (Churchwardens), 1 Str. 115:
discussed and applied in Rex v. Dymock
(Vicar), 84 L. J. K.B. 294 ; [1915] 1 K.B. 147 ;
112 L. T. 156; 79 J. P. 91; 13 L. G. E. 48;
31 T. L. E. 11.
Rex V. Wells, 68 J. P. 392: followed in
Rex V. Cat an Justices, [1914] 2 Ir. E. 150.
Rex V. Wilson, 6 Cr. App. Eep. 125: fol-
lowed in Rex v. Cohen, 111 L. T. 77.
Reynault, In re, 16 Jur. 233 : followed in
Leigh v. Pantin. 84 L. J. Ch. 345; [1914]
2 Ch. 701 : 112 L. T. 26.
Rhodes v. Muswell Hill Land Co., 29 Beav.
560 : applied in Williams. In re, 81 L. J. Ch.
296; [1912] 1 Ch. 399 : 106 L. T. 584 ; .56 S. J.
325.
Rhodesia Goldfields, In re, 79 L. J. Ch.
133; [1910] 1 Ch. 239; 102 L. T. 126;
17 Manson, 23; 54 S. J. 135 : distinguished in
Peruvian Railway Construction Co., In re,
[1915] 2 Ch. 144; 59 S. J. 579; 31 T. L. E.
464; and in Smelting Corporation, In re;
Seaver v. Smelting Corporation, 84 L. J. Ch.
571; [1915] 1 Ch. 472; 113 L. T. 44; [1915]
H. B. E. 126.
Richards, In re ; Uglow v. Richards, 71 L. J.
Ch. 66: [1902] 1 Ch. 76; 85 L. T. 452;
50 W. E. 90: followed in Ryder, In re;
Burton v. Kearsley. 83 L. J. Ch. 653; [1914]
1 Ch. 865 : 110 L. T. 970: -58 S. J. 556.
Richards v. Butcher, 7 E. P. C. 288: judg-
ment of Kav. J., in. follow^ed in Dental Manu-
facturing Co. V. De Trey. 81 L. J. K.B. 1162;
[1912] 3 K.B. 76; 107 L. T. Ill; 28 T. L. E.
498.
Richards v. Swansea Improvement and
Tramways Co., 9 Ch. D. 425 : observations of
Brett, L.J., in, followed in Regent's Canal and
Dock Co. V. London County Council, 81 L. J
Ch. 377; [1912] 1 Ch. 583; 106 L. T. 745-
76 J. P. 3.53; 10 L. G. E. 358; 56 S. J. 309 i
28 T. L. E. 248.
Richards v. Wrexham and Acton Collieries,
83 L. J. K.B. 687; [1914] 2 K.B. 497;
110 L. T. 402 ; 30 T. L. E. 228 : followed in
Higginson v. Blackwell Colliery Co., 84 L .T
K.B. 1189; 112 L. T. 442; 31 T. L. E. 95.
Richardson, In re; St. Thomas's Hospital
GoYernors, ex parte, 80 L. J. K.B. 12.32;
[1911] 2 K.B. 705 ; 105 L. T. 226 : explained
and distinguished in Law Guarantee Trust and
Accident Society, In re (No. 2), 84 L. J. Ch 1 •
[1914] 2 Ch. 617; 111 L. T. 817; 58 S. .J.
704; 30 T. L. E. 616.
Richardson v. M'Causland, Beatty, 457:
applied and followed in Kelaghan v. Daly,
[1913] 2 Ir. E. 328.
Richardson v. Mellish, 2 Bing. 229: dis-
cussed in Chaplin v. Hicks, 80 L. J. K.B.
1292; [1911] 2 K.B. 786; 55 S. J. 580;
27 T. L. E. 458.
Richardson's Trusts, In re, 17 L. E. Ir.
4.36 : distinguished in Ackerley, In re; Chap-
man V. Andrew, 82 L. J. Ch. 260; [1913]
1 Ch. 510; 108 L. T. 712.
Richerson, In re (No. 2) , 62 L. J. Ch. 708 ;
[1893] 3 Ch. 146 ; 69 L. T. 590 : 41 W. E. -583 :
followed and applied in Tate. In re; William-
son V. Gilpin. 83 L. J. Ch. 593; [1914] 2 Ch.
182; 109 L. T. 621; 58 S. J. 119.
Ridgway v. Newstead, 30 L. J. Ch. 889;
3 De G. F. & J. 474 : considered and distin-
guished in Eustace, In re; Lee v. McMillan,
81 L. J. Ch. 529; [1912] 1 Ch. 561 : 106 L. T.
789; 56 S. J. 468.
Rigby V. Connol, 49 L. J. Ch. 328 ; 14 Ch.
D. 482 ; 42 L. T. 139 : considered in Osborne
V. Amalgamated Society of Railway Servants,
80 L. J. Ch. 315 : [1911] 1 Ch. 540 ; 104 L. T.
267 ; 27 T. L. E. 289.
Riggall V. Great Central Railway, 14 Com.
Cas. 2.59; 101 L. T. 392; 53 S. J. 716;
25 T. L. E. 754 : followed in Jenkins v. Great
Central Railway, 81 L. J. K.B. 24; [1912]
1 K.B. 1; 106 L. T. 565; 17 Com. Cas. 32;
12 Asp. M.C. 154; 28 T. L. E. 61.
Rimmer v. Webster, 71 L. J. Ch. 561
[1902] 2 Ch. 163 ; 86 L. T. 491 ; 50 W. E. 517
applied in Fry v. Smellie, 81 L. J. K.B. 1003
106 L. T. 404.
Explained, Distixguished, and Commented On.
2095
Ripley v. Paper Bottle Co., 57 L. J. Ch.
327 : overruled in Jones v. Pacaija Rubber and
Produce Co.. 80 L. J. K.B. 155 ; [1911] 1 K.B.
455; 104 L. T. 446; 18 Manson, 139.
Rishton v. Grissell, L. R. 5 Eq. 326: ex-
plained in Spanish Prospecting Co., In re,
80 L. J. Ch. 210: [1911] 1 Ch. 92; 103 L. T.
609; 18 Manson, 191 ; 55 S. J. 63; 21 T. L. E.
76.
River Steamer Co., In re; Mitchell's Claim,
L. E. 6 Ch. 822 : applied in Fleetwood and
District Electric Light and Power Syndicate,
In re, 84 L. J. Ch. 374; [1915] 1 Ch. 486:
112 L. T. 1127; [1915] H. B. R. 70; 59 S. J.
.383; .31 T. L. E. 221.
Rivett-Carnac, In re; Simmonds, ex parte,
55 L. .T. Q.B. 74; 16 Q.B. D. 308 : considered
iQ Wells V. Wells, 83 L. J. P. 81; [1914] P.
157; .58 S. J. .555; 30 T. L. E. 545.
Robb V. Green, 64 L. J. Q.B. 593; [1895]
2 Q.B. 1, 315; 72 L. T. 686; 73 L. T. 15 :
applied in Amber Size and Chemical Co. v.
Menzel, 82 L. J. Ch. 573; [1913] 2 Ch. 239;
109 L. T. 520.
Robbing v. Jones, 33 L. J. C.P. 1; 15 C.B.
(K.B.) 221 : followed in Horridge v. Mahinson,
84 L. J. K.B. 1294 ; 113 L. T. 498 ; 13 L. G. E.
868 ; 31 T. L. R. 389.
Roberts v. Bishop of Kilmore, [1902] 1 Ir. E.
333 : distinguished in Jones, In re, 84 L. .7.
Ch. 222; [1915] 1 Ch. 246; 112 L. T. 409;
59 S. J. 218.
Robertson v. Bristol Corporation, 69 L. J.
Q.B. 590; [1900] 2 Q.B. 198; 82 L. T. 516;
48 W. E. 498 ; 64 J. P. 389 : considered and
applied in Wandsivorth Borough Council v.
Golds, 80 L. J. K.B. 126; [19111 1 K.B. 60;
103 L. T. 568; 74 .T. P. 464; 8 L. G. R. 1102.
Robertson v. Robertson, 51 L. J. P. 5 ; 6 P. D.
119 : followed in Palmer v. Palmer, 83 L. J.
P. 58 ; [1914] P. 116 ; 110 L. T. 7.52 ; .58 S. .7.
416; 30 T. L. R. 409.
Robins v. Gray, 65 L. ,7. Q.B. 44; [1895]
2 Q.B. .501; 73 L. T. 252; 44 W. E. 1;
59 J. P. 741 : distinguished in Cassils .l'- Co. v.
Holden Wood Bleaching Co., 84 I.. J. K.B.
834 ; 112 7j. T. 373.
Robinson v. Shepherd, 4 De G. J. & S. 129 ;
9 L. T. 527 : followed in Bering, In re,
105 L. T. 404.
Robinson Printing Co. v. Chic, Lim.,
74 L. .7. Ch. 399; [1905] 2 Ch. 123; 93 Ij. T.
262; 53 W. R. 681; 12 Manson, 314;
21 T. L. E. 446 : followed in Deyes v.
Wood, 80 L. .7. 7\.B. 553; [1911] 1 7\.B. 806;
104 L. T. 404.
Roche V. Roche, 74 L. .7. P. 50; [1905] P.
142; 92 r.. T. 668; 21 T. L. E. 332: dis-
approved in Brooke v. Brooke (No. 1), 81 1j. J.
P. 75; [1912] P. 136; 106 L. T. 766; 56 S. J.
382; 28 T. 7j. E. 314.
Roddy V. Fitzgerald, 6 H.L. C. 823: applied
in Simcoe, In re; Vowler-Simcoe v. Vowler,
82 L. J. Ch. 270; [1913] 1 Ch. 552; 108 L. T.
891 ; 57 S. J. 533.
Rodocanachi v. Milburn, 56 L. J. Q.B. 202 ;
18 Q.B. D. 67; 56 7j. T. 594; 35 W. E. 241;
6 Asp. M.C. 100 : approved and followed, and
held not to have been affected by section 51,
sub-section 2 of the Sale of Goods Act, 1893,
in Williams v. Agius, 83 L. J. K.B. 715;
[1914] A.C. 510; 110 L. T. 865; 19 Com. Cas.
200; 58 S. J. 377; 30 T. L. E. 351.
Rogers v. Hosegood, 69 L. J. Ch. 652;
[1900] 2 Ch. 388; 83 L. T. 186; 48 W. E.
659 : distinguished in Millbourn v. Lyons,
83 L. J. Ch. 737 ; [1914] 2 Ch. 231 ; 111 L. T.
388; 58 S. J. 578.
Rogers v. Humphreys, 5 L. ,7. K.B. 65 ;
4 Ad. & E. 299 : considered in Ind, Coope d
Co., In re; Fisher v. The Company, 80 L. J.
Ch. 661; [1911] 2 Ch. 223; 105 L. T. 356;
55 S. J. 600.
Roney, In re, 83 L. J. K.B. 451; [1914]
2 K.B. 529; 110 L. T. Ill: dictum in, ap-
proved in Seal v. Turner, 84 L. J. K.B. 1658;
[1915] 3 K.B. 194; 113 L. T. 769; 59 S. J.
649.
Rosie V. Mackay, [1910] S. C. 714 : doubted
in Weir v. North British Railicay, [1912]
S. C. 1073 : considered and held overruled by
Taylor \. London and N orth-W estern Railway
(81 L. J. K.B. 541; [1912] A.C. 242) in
Dempsey v. Caldicell, [1914] S. C. 28.
Ross, In re; Ashton v. Ross, 69 L. J. Ch.
192; [1900] 1 Ch. 162; 81 L. T. 578;
48 W. E. 264 : followed in Dempster. In re,
84 L. J. Ch. 597 : [1915] 1 Ch. 795 : 112 L. T.
1124.
Ross, Ex parte, 2 G. & J. 330 : distin-
guished in Benzon, In re, 83 L. J. Ch. 658;
[1914] 2 Ch. 68; 110 L. T. 926; 21 Manson,
8; 58 S. J. 430; 30 T. L. E. 435.
Ross V. Eason, [1911] 2 Ir. E. 459: distin-
guished in Cooney v. Wilson, [1913] 2 Ir. E.
402.
Rouch V. Hall, 50 L. J. M.C. 6; 6 Q.B. D.
17; 44 Ij. T. 183 : applied in Monro v. Central
Creamery Co., 81 L. J. K.B. 547; [1912]
1 K.B. 578; 106 L. T. 114; 76 J. P. 131;
10 L. G. E. 134 ; 22 Cox C.C. 682.
Rourke v. Robinson, 80 L. J. Ch. 295;
[1911] 1 Ch. 480: 103 1j. T. 895: discussed
and distinguished in Webb v. Crosse, 81 Ij. J.
Ch. 259; [1912] 1 Ch. 323; 105 Ij. T. 867;
56 S. 7. 177.
Rowning v. Goodchild, 2 W. Bl. 906: ap-
plied in Ilainiltoti v. Clancy, [1914] 2 Ir. E.
514.
2096 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Royal Mail Steam Packet Co. and River
Plate Steamship Co., In re, 79 L. J. K.B.
(;73; [1910] 1 K.B. 600; 15 Com. Cas. 124;
102 L. T. 333; 11 Asp. M.C. 372: followed
in Mawson Shipping Co. v. Beyer, 83 L. J.
K.B. 290; [1914] 1 K.B. 304; 109 L. T. 973;
19 Com. Cas. 59.
Royal Masonic Institution for Boys v.
Parkes, 82 L. J. K.B. 33; [1912] 3 K.B. 212;
106 L. T. 809; 76 J. P. 218; 10 L. G. K. 376;
28 T. L. E. 355 : followed in Johnston v.
Lalonde, 81 L. J. K.B. 1229; [1912] 3 K.B.
218; 76 J. P. 378; 10 L. G. E. 671.
Royal Warrant Holders' Association v.
Kitson, 26 E. P. C. 157: followed in J. T.
Smith and J. E. Jones, Lim. v. Service,
Reeve <f- Co.. 83 L. J. Ch. 876; [1914] 2 Ch.
576.
Ruben v. Great Fingall Consolidated, Lim.,
75 L. J. K.B. 843; [1906] A.C. 439; 95 L. T.
214; 13 Manson, 248; 22 T. L. E. 712 : dicta
of Lord Davey in, disapproved in Lloyd v.
Grace, Smith <t- Co., 81 L. J. K.B. 1140;
[1912] A.C. 716 ; 56 S. J. 273 ; 28 T. L. E. 547.
Ruby, The, 83 L. T. 438: followed in
Mackay, In re, [1915] 2 Jr. E. 347.
Rugby Trustees v. Merry weather, 11 East,
275n. : approved in King ston-npon- Hull Cor-
poration V. North-Eastern Railway, 84 L. J.
Ch. 329; [1915] 1 Ch. 456; 112 L. T. 584;
79 J. P. 221 ; 13 L. G. E. 587 ; -59 S. J. 318.
Rushton V. Skey & Co., 83 L. J. K.B. 1503;
[1914] 3 K.B. 706; [1914] W.C. & I. Eep.
497 ; 111 L. T. 700 ; 58 S. J. 685 ; 30 T. L. E.
601 : applied in Allen v. Francis, 83 L. J.
K.B. 1814; [1914] 3 K.B. 1065; [1914] W.C.
& I. Eep. 599; 112 L. T. 62; 58 S. J. 753;
30 T. L. E. 695.
Russell V. Stubbs, Lim., 52 S. J. 580 : con-
sidered in Barham v. Hunting field (Lord),
82 L. J. K.B. 752; [1913] 2 K.B. 193;
108 L. T. 703.
Russell V. Town and County Bank, 58 L. J.
P.C. 8; 13 App. Cas. 418; 59 L. T. 481;
53 J. P. 244 : followed in General Hydraulic
Power Co. v. Hancock, 83 L. J. K.B. 906;
[1914] 2 K.B. 21; 111 L. T. 251; 6 Tax Cas.
445 ; 30 T. L. E. 203 : principle of, applied
in Usher's Wiltshire Breivery v. Bruce,
84 L. J. K.B. 417; [1915] A.C. 433;
112 L. T. 651; 6 Tax Cas. 399; 59 S. J. 144;
31 T. L. E. 104.
Ruther v. Ruther, 72 L. J. K.B. 826;
[1903] 2 K.B. 270; 52 W. E. 154; 67 J. P.
359 : followed in Adams v. Adams, 83 L. J.
P. 151; [1914] P. 155; 58 S. J. 613.
Rutherglen Parish Council v. Glasgow
Parish Council, [1902] A.C. 360; 4 Fraser
(H.L.) 19 : opinion of Lord Brampton and
Lord Lindley in, not followed in St. Matthew,
Bethnal Green v. Paddington Guardians,
81 L. J. K.B. 747; [1912] 2 K.B. 335;
107 L. T. 406; 76 J. P. 289; 10 L. G. E. 513;
28 T. L. E. 391.
Ruthin and Cerrig-y-Druidion Railway Act,
In re, 56 L. J. Cb. 30 ; 32 Ch. D. 438 ; 55 L. T.
237 : applied in Southport and Lytham Tram-
road Act, In re, 80 L. J. Ch. 137; [1911]
1 Ch. 120 ; 104 L. T. 154 : followed in West
Yorkshire Tramways Act, In re, 82 L. J. Ch.
98; [1913] 1 Ch. 170; 108 L. T. 18.
Rutter V. Everett, 64 L. J. Ch. 845 ; [18951
2 Ch. 872; 73 L. T. 82; 44 W. E. 104';
2 Manson, 371 : discussed in Neal, In re,
83 L. J. K.B. 1118; [1914] 2 K.B. 910;
110 L. T. 988; 58 S. J. 536.
Rylands v. Fletcher, 37 L. J. Ex. 161;
L. E. 3 H.L. 330; 19 L. T. 220 : doctrine of,
considered in Charing Cross, West End and
City Electricity Supply Co. v. London
Hydraulic Power Co., 83 L. J. K.B. 1352;
[1914] 3 K.B. 772; 111 L. T. 198; 78 J. P.
305; 12 L. G. E. 807; 58 S. J. 577;
30 T. L. E. 441 : principle in, when applicable,
considered in Goodbody v. Poplar Borough
Council, 84 L. J. K.B. 1230; 79 J. P. 218;
13 L. G. E. 166.
Saccharin Corporation v. Chemische Fabrik
von Heyden Actiengesellschaft, 80 L. J. K.B.
1117; [1911] 2 K.B. 516; 104 L. T. 886:
distinguished in Okiira v. Forsbacka Jernverks
Aktiebolag, 83 L. J. K.B. 561; [1914] 1 K.B.
715; 110 L. T. 464; 58 S. J. 232; 30 T. L. E.
242.
Sadgrove v. Kirby, 6 Term Eep. 483: prin-
ciple of, applied in Hope v. Osborne, 82 L. J.
Ch. 457; [1913] 2 Cb. 349; 109 L. T. 41;
77 J. P. 317 ; 11 L. G. E. 825 ; 57 S. J. 702 ;
29 T. L. E. 606.
Sadler v. Evans, 4 Burr. 1984 : considered
in Baylis v. London (Bishop), 82 L. J. Ch. 61;
[1913] 1 Ch. 127; 107 L. T. 730; 57 S. J. 96;
29 T. L. E. 59.
Sadler v. Pratt, 5 Sim. 632: applied in
Witty, In re; Wright v. Robinson, [1913]
2 Ch. 666; 109 L. T. 590.
Saffery v. Mayer, 70 L. J. K.B. 145 ; [1901]
1 K.B. 11; 83 L. T. 394; 49 W. E. 54;
64 J. P. 740 : distinguished in O'Shea, In re,
81 L. J. K.B. 70; [1911] 2 K.B. 981:
105 L. T. 486.
I
Explained, Distinguished, and Commented On.
2097
St. Catherine's Milling and Lumber Co. v.
Reg., 58 L. J. P.C. 54: 14 App. Cas. 46;
60 L. T. 197 : dictum of Lord Watson in,
disapproved in Dominion of Canada v. Province
of Ontario, 80 L. J. P.C. 32; [1910] A.C. 637;
103 L. T. 331 : 26 T. L. E. 681.
St. Leonard, Shoreditch (Vestry) v. Phelan,
65 L. J. M.C. Ill; [1896] 1 Q.B. 533;
74 L. T. 285; 44 W. R. 427; 60 J. P. 244 :
oommented upon and not followed in Kershaw
V. Smith, 82 L. J. K.B. 791; [1913] 2 K.B.
455 ; 108 L. T. 650 ; 77 J. P. 297 ; 11 L. G. R.
519.
St. Nazaire Co., In re, 12 Ch. D. 88 ; 41 L. T.
110 ; 27 W. R. 854 : followed in Hession v.
Jones, 83 L. J. K.B. 810; [1914] 2 K.B. 421;
110 L. T. 773; 30 T. L. R. 320.
Salomon v. Salomon, 66 L. J. Ch. 85 ;
[1897] A.C. 22; 75 L. T. 426; 45 W. R. 193;
4 Manson, 89 : followed in Att.-Gen. for
Canada v. Standard Trust Co. of New York,
80 L. J. P.C. 189 : [1911] A.C. 498 ; 105 L. T.
152.
Salt v. Cooper, 50 L. J. Ch. 529 ; 16 Ch. D.
644; 43 L. T. 682 ; 29 W. R. 553 : explained in
Hearn, In re; De Bertodano v. Hearn.
108 L. T. 452.
Salt V. Tomlinson, 80 L. J. K.B. 897;
[1911] 2 K.B. 391; 105 L. T. 31; 75 J. P.
398; 9 L. G. R. 822; 27 T. L. R. 427:
considered in Bothamley v. Jolly, 84 L. J.
K.B. 2223; [1915] 3 K.B. 435; 31 T. L. R.
626.
Sampson, In re, 65 L. J. Ch. 406; [1896]
1 Ch. 630; 74 L. T. 246; 44 W. R. 557:
applied in Jenkins, In re; Williams v.
Jenkins. 84 L. J. Ch. 349; [1915] 1 Ch. 46.
Samson, In re, 76 L. J. Ch. 21: [1906]
2 Ch. 584; 95 L. T. 633 : ratio decidendi in,
applied in Olpherts v. Coryton (No. 1), [1913]
1 Ir. R. 211 : considered in Harris. In re :
Davis V. Harris, 83 L. J. Ch. 841; [1914]
2 Ch. 395.
Samuel v. Jarrah Timber and Wood Paving
Corporation, 73 L. J. Ch. 526; [1904] A.C.
323; 90 L. T. 731; 52 W. R. 673; 11 Manson.
276; 20 T. L. R. 536 : discussed and distin-
guished in Kreglinger v. New Patagonia Meat
and Cold Storage Co., 83 L. J. Ch. 79: [1914]
A.C. 25; 109 L. T. 802; 58 S. J. 97;
30 T. L. R. 114.
Sander v. Heathfield, 44 L. J. Ch. 113;
J J. R. 19 Eq. 21 ; 31 L. T. 400; 23 W. R. 331 :
distinguished in Harris, In re; Davis v.
Harm, 83 L. J. Ch. 841; [1914] 2 Ch. 395;
58 S. J. 653.
Sanders' Trusts, In re, L. R. 1 Eq. 675:
followed in Jones, In re; Last v. Dobson,
84 L. J. Ch. 222 ; [1915] 1 Ch. 246 ; 112 L. T.
409; 59 S. J. 218.
Sanitary Carbon Co., In re, 12 L. J. N.C.
183: [1877] \V. N. 223: distinguished in
East V. Bennett Bros.. 80 L. J. Ch. 123;
[1911] 1 Ch. 163; 103 L. T. 826; 18 Manson,
145 ; 55 S. J. 92 : 27 T. L. R. 103.
Sartoris, In re, 61 L. J. Ch. 1 : ri892] 1 Ch.
11; 65 L. T. 544; 40 \V. R. 82": appHed in
Laye, In re; TurnbuU v. Laye, 82 L. J. Ch.
218 ; [1913] 1 Ch. 298 ; 108 L.T. 324 : 20 Man-
son, 124; 57 S. J. 284.
Saumarez, In re ; Salaraan, ex parte, 76 L J
K.B. 828; [1907] 2 K.B. 170; 97 L. T. 121;
14 Manson, 170; 23 T. L. R. 477 : explained
and distinguished in Allix, In re, 83 L. J.
K.B. 665; [1914] 2 K.B. 77; 110 L. T. 592;
21 Manson, 1 ; 58 S. J. 250.
Saunders v. Thorney, 78 L. T. 627 : distin-
guished in Bristow v. Piper, 84 L. J. K.B.
607; [1915] 1 K.B. 271; 112 L. T. 426;
79 J. P. 177; 59 S. J. 178; 31 T. L. R. 80.
Saundrey v. Mitchell, 32 L. J. Q.B. 100;
3 B. & S. 405; 9 Jur. (n.s.) 968; 7 L. T. 849;
11 W. R. 363 : distinguished in Cope v.
Bennett, [1911] 2 Ch. 488; 105 L. T. 541;
55 S. J. 521, 725.
Saville v. Robertson, 4 Term Rep. 720:
distinguished in Karmali Abdulla Allarakhia
V. Vora Karinji Jiwangi, L. R. 42 Ind. App.
Schoole V. Sail, 1 Sch. & Lef. 176: distin-
guished in Webb v. Crosse, 81 L. J. Ch. 259;
[1912] 1 Ch. 323; 105 L. T. 867 ; 56 S. J. 177.
Schweder, In re, [18931 W. N. 12; 37 S. J.
249 : not followed in Trollope, In re, 84 L. J.
Ch. 553; [1915] 1 Ch. 853; 113 L. T. 153.
Scott, In re, 70 L. J. K.B. 66 : [1901] 1 K.B.
228 : 83 L. T. 613 ; 49 M\ R. 178 ; 65 J. P. 84 :
distinguished in Greenwood, In re, 81 L. J.
Ch. 298: [1912] 1 Ch. 392; 106 L. T. 424;
56 S. J. 443.
Scott V. Avery, 25 L. J. Ex. 308; 5 H.L. C.
811 : distinguished in Jureidini v. National
British and Irish Millers' Insurance Co.,
84 L. J. K.B. 640; [1915] A.C. 499; [1915]
W.C. & I. Rep. 239; 112 L. T. 531; 59 S. J.
205 ; 31 T. L. R. 132.
Scott V. Brown & Co., 61 L. J. Q.B. 738;
[1892] 2 Q.B. 724 : applied in Robinson's
Settlement, In re: Gant v. Hobbs, 81 L. J.
Ch. 393; [1912] 1 Ch. 717; 106 L. T. 443;
28 T. Jj. R. 298.
Scott V. Carritt, 82 L. T. 67 : distinguished
in Clode v. London County Council, 83 L. J.
K.B. 1587; [1914] 3 K.B. 852; 12 L. G. R.
673; 58 S. J. 633 ; 30 T. L. R. 489.
Scott V. Nixon, 3 Dr. & W. 388 : applied in
Atkinson and Horscll's Contract, In re,
81 L. J. Ch. 588; [1912] 2 Ch. 1; 106 L. T.
548; 56 S. J. 324.
2098 Cases Followed, Not Followed, Approved, Overruled, Questioned,
SeaYer v. Sea¥er, 2 Sw. & Tr. 665 : rule
laid down in, has no longer any application in
England : so held in Brookiyxg Phillips v.
Brooking Phillips, 82 L. J. P. 57; [1913] P.
80; 108 L. T. 397 : 29 T. L. E. 288.
Seaward v. Drew, 67 L. J. Q.B. 322;
78 L. T. 19 : not followed in Stait v. Fenner,
81 L. J. Ch. 710; [1912] 2 Ch. 504 ; 107 L. T.
120; 56 S. J. 669.
Seaward v. Paterson, 66 L. J. Ch. 267 ;
[1897] 1 Ch. 545 ; 76 L. T. 215 : 45 AV. E. 610 :
followed in Hubbard v. Woodfield, 57 S. J. 729.
Seddon v. North-Eastern Salt Co., 74 L. J.
Ch. 199; [1905] 1 Ch. 326; 91 L. T. 793;
53 W. E. 232 ; 21 T. L. E. 118 : followed in
Lecky v. Walter, [1914] 1 Ir. E. 378.
Sedgwick, In re, 5 Morrell, 262: applied in
Renison, In re; Greaves, ex parte, 82 L. J.
K.B. 710; [1913] 2 K.B. 300; 108 L. T. 811;
20 Manson, 115; 57 S. J. 445.
Sellman v. Boom, 10 L. J. Ex. 433; 8 M. &
W. 552 : observations in, adopted in Harben
V. Gordon, 83 L. J. K.B. 322; [1914] 2 K.B.
577 ; 109 L. T. 794 ; 58 S. J. 140.
Shafto V. Bolckow, Yaughan & Co., 56 L. J.
Ch. 735; 34 Ch. D. 725; 56 L. T. 608 : fol-
lowed in Thornhill v. Weeks {No. 1), 82 L. J.
Ch. 299: [1913] 1 Ch. 438; 108 L. T. 892;
77 J. P. 231: 11 L. G. E. 362; 57 S. J. 477.
Shardlow v. Cotterill, 50 L. J. Ch. 613:
20 Ch. D. 90 : followed in Sarory. Lim. v.
•' World of Golf," Lim., 83 L. J. Ch. 824;
[1914] 2 Ch. 566; 58 S. J. 707.
Sharpe v. Dawes, 46 L. J. Q.B. 104; 2 Q.B.
D. 26: 36 L. T. 188 : distinguished in East v.
Bennett Bros., 80 L. J. Ch. 123; [1911] 1 Ch.
163: 103 L. T. 826: 18 Manson, 145: 55 S. J.
92; 27 T. L. E. 103.
Sharpe v. Sharpe, 78 L. J. P. 21 ; [1909]
P. 20; 99 L. T. 884; 25 T. L. E. 131 : dictum
of Bargrave Deane, J., in, discussed and dis-
tinguished in Hall v. Hall, 84 L. J. P. 93;
[1915] P. 105: 113 L. T. 58: 59 S. J. 381.
Sharpington v. Fulham Guardians, 73 L. J.
Ch. 777; [1904] 2 Ch. 449; 91 L. T. 739;
52 W. E. 617 ; 68 J. P. 510; 20 T. L. E. 643;
2 L. G. E. 1229 : approved in Myers v. Brad-
ford Corporation, 84 L. J. K.B. 306; [1915]
1 K.B. 417; 112 L. T. 206; 79 J. P. 130;
13 L. G. E. 1; 59 S. J. 57; 31 T. L. E. 44.
Sharpies v. Eason, [1911] 2 Ir. E. 436 :
distinguished in Cooney v. IT //son, [1913]
2 Ir. E. 402.
Sharpness New Docks v. Att.-Gen., 84 L. J.
K.B. 907: [1915] A.C. 654; 112 L. T. 826;
79 J. P. 305; 13 L. G. E. 563; 59 S. J. 381;
31 T. L. E. 254 : applied in Att.-Gen. v. Great
Northern Railway, 84 L. J. K.B. 793; 59 S. J.
578; 31 T. L. E. 501.
Shaw, In re; Gill, ex parte, 83 L. T. 487,
754: distinguished in Sunderland, In re;
Leech & Simpkinson, ex parte, 80 L. J. K.B.
825; [1911] 2 K.B. 658; 18 Manson, 123:
55 S. J. 568; 27 T. L. E. 454.
Shaw V. Smith, 56 L. J. Q.B. 174; 18 Q.B.
D. 193; 56 L. T. 40: considered in Birchal
V. Crisp d Co., 82 L. J. Ch. 442; [1913]
2 Ch. 375 ; 109 L. T. 275.
Shelley's Case, 1 Co. Eep. 93b : rule in,
held not applicable in Davison's Settlement,
In re, 83 L. J. Ch. 148; [1913] 2 Ch. 498;
109 L. T. 666 ; 58 S. J. 50.
Shenstone v. Freeman, 70 L. J. K.B. 982;
[1910] 2 K.B. 84; 102 L. T. 682; 54 S. J.
477 ; 26 T. L. E. 416 : followed in Rogers v.
Martin, 80 L. J. K.B. 208; [1911] 1 K.B. 19;
103 L. T. 527; 75 J. P. 10; 55 S. J. 29;
27 T. L. E. 40.
Shepherd v. Midland Railway, 25 L. T. 879:
dictum of Pigott, B., in, approved in O'Keefe
V. Edinburgh Corporation, [1911] S. C. 18.
Sheridan v. O'Reilly, [1900] 1 Ir. R. 386:
distinguished in Finlay's Estate, In re, [1913]
1 Ir. R. 143.
Shewan v. Yanderhorst, 1 Euss. & My. 347 :
2 Euss. & My. 75 : applied in Fleetwood and
District Electric Light, &c. Co., In re, 84 L. J.
Ch. 374; [1915] 1 Ch. 486; 112 L. T. 1127;
[1915] H. B. E. 70; 59 S. J. 383; 31 T. L. E.
221.
Shirley v. Fisher, 47 L. T. 109: distin-
guished in Jones' Settlement, In re, 84 L. J.
Ch. 406; [1915] 1 Ch. 373: [1915] W.C. &
I. Eep. 277 ; 112 L. T. 1067 ; 59 S. J. 364.
Shrapnel v. Laing, 57 L. J. Q.B. 195:
20 Q.B. D. 334 : followed and applied in
Fox V. Central Silkstone Collieries, 81 L. J.
K.B. 989; [1912] 2 K.B. 597; 107 L. T. 85;
56 S. J. 634.
Shudal V. Jekyll, 2 Atk. 516: considered in
Shields, In re; Corbould-Ellis v. Dales,
81 L. J. Ch. 370; [1912] 1 Ch. 591; 106 L. T.
748.
Silles V. Fulham Borough Council, 72 L. J.
K.B. 397; [1903] 1 K.B. 829; 88 L. T. 753;
51 W. E. 598; 67 J. P. 273; 1 L. G. E. 643 :
followed in Kershaw v. Paine. 78 J. P. 149;
12 L. G. E. 297.
Simcoe, In re; Yowles-Simcoe v. Yowler,
82 L. J. Ch. 270: [1913] 1 Ch. 552: 108 L. T.
891; 57 S. J. 533 : distinguished in Laivrence
(Lord). In re, 84 L. J. Ch. 273; [1915] 1 Ch.
129 ; 112 I.. T. 195 : 59 S. J. 127.
Explained, Distixguished, and Commented On.
2099
Simpson, In re, 73 L. J. Ch. 53; [1904]
1 Ch. 1 ; 89 L. T. 542 ; 52 W. E. 310 : distin-
guished in Mudge, In re, 82 L. J. Ch. 381;
[1913] 2 Ch. 92; 108 L. T. 950; 57 S. J. 578.
Simpson v. Inland Revenue Commissioners,
83 L. J. K.B. 1318; [1914] 2 K.B. 842;
110 L. T. 909; 30 T. L. R. 436 : distinguished
in Mattheivsv. Inland Revenue Commissioners ,
[1914] 3 K.B. 192.
Sims V. Quinlan, 16 Ir. Ch. Rep. 191 ; 17 Ir.
Ch. Rep. 43 : considered in Smith, In re
Johnson v. Bright-Smith, 83 L. J. Ch. 687
[1914] 1 Ch. 937 ; 110 L. T. 898 ; 58 S. J. 494
30 T. L. R. 411.
Sinclair, In re; Allen v. Sinclair, 66 L. J.
Ch. 514; [1897] 1 Ch. 921; 76 L. T. 452;
45 W. R. 596 : distinguished in Dempster,
In re; Borthwick v. Lovell, 84 L. J. Ch. 597 ;
[1915] 1 Ch. 795; 112 L. T. 1124; and in
Richardson, In re; Mahony v. Treacy, [1915]
1 Ir. R. 39.
Sinclair, In re; Payne, ex parte, 15 Q.B. D.
616; 53 L. T. 764: followed in Johnson.
In re; Ellis, ex parte, 111 L. T. 165.
Singer Manufacturing Co. v. London and
South-Western Railway, 63 L. J. Q.B. 411 ;
[1894] 1 Q.B. 833; 70 L. T. 172; 42 W. R.
347 : distinguished in Cassils d Co. V. Holden
Wood Bleaching Co., 84 L. J. K.B. 834;
112 L. T. 373.
Singleton v. Ellison, 64 L. J. M.C. 123:
[1895] 1 Q.B. 609; 72 L. T. 236: followed
in Caldwell v. Leech, 109 L. T. 188; 77 J. P.
254; 29 T. L. R. 457.
Sion College v. London Corporation, 70 L. .7.
K.B. 369; [1901] 1 K.B. 617; 84 L. T. 133;
49 W. R. 361 ; 65 J. P. 324 : distinguished and
questioned in Associated Newspapers, Lirn. v.
London Corporation {No. 1), 83 L. J. K.B.
979; [1914] 2 K.B. 603; 110 L. T. 796;
78 J. P. 225; 12 L. G. R. 372; 58 S. J. 318;
30 T. L. R. 337 : followed in A.-ssociated News-
papers, Lim. V. London Corporation {No. 2),
84 L. J. K.B. 1913; [1915] 3 K.B. 128;
113 L. T. 587; 59 S. J. 545; 31 T. L. R. 432.
Sir John Moore Gold Mining Co., In re,
12 Ch. D. 325 : applied in Rubber and Produce
Investment Trust, In re, 84 L. J. Ch. 534;
[1915] 1 Ch. 382; 112 L. T. 1129; [1915]
H. B. R. 120; 31 T. L. R. 253.
Skeats, In re, 58 L. J. Ch. 656; 42 Ch. D.
522 : distinguished in Cotter, In re, 84 L. J.
Ch. 337; [1915] 1 Ch. 307; 112 L. T. 340:
59 S. J. 177.
Slater, In re, 76 L. J. Ch. 472; [1907] 1 Ch.
665; 97 L. T. 74: applied in Clifford, In
re; Mallam v. McFie, 81 L. J. Ch. 220;
[1912] 1 Ch. 29; 106 L. T. 14; 56 S. J. 91;
28 T. L. R. 57.
Slater v. Jones, 42 L. J. Ex. 122; L. R.
8 Ex. 186 ; 29 L. T. 56 : applied in West
Yorkshire Darracq Agency, Lim. v. Coleridge,
80 L. J. K.B. 1122; [1911] 2 K.B. 326.
Slatford v. Erlebach, 81 L. J. K.B. 372;
[1912] 3 K.B. 155; 106 L. T. 61: distin-
guished in Ingram d Royle v. Services Mari-
times du Treport {No. 2), 83 L. J. K.B. 1128;
[1914] 3 K.B. 28; 110 L. T. 967.
Slazenger v. Pigott, 12 R. P. C. 439: not
followed in J. T. Smith and J. E. Jones,
Lim. V. Service, Reeve d Co., 83 L. J. Ch.
876 ; [1914] 3 Ch. 576.
Slevin, In re; Slevin v. Hepburn, 60 L. J.
Ch. 439 ; [1891] 2 Ch. 236 : applied in
Cunningham. In re; Dulcken v. Cunningham,
83 L. J. Ch. 342; [1914] 1 Ch. 427 ; 110 L. T.
371.
Slobodinsky, In re; Moore, ex parte, 72 L.J.
K.B. 883; [1903] 2 K.B. 517; 89 L. T. 190;
52 W. R. 156 : considered in Goldburg, In re;
Silverstone, ex parte, 81 L. J. K.B. 382 ; [1912]
1 K.B. 384; 105 L. T. 959; 19 Manson, 44.
Smith V. Baker, 60 L. J. Q.B. 683; [1891]
A.C. 325 ; 65 L. T. 467 ; 55 J. P. 660 : followed
in Taylor v. National .Amalgamated Approved
Society, 83 L. J. K.B. 1020; [1914] 2 K.B.
352; 110 L. T. 696; 78 J. P. 2-54: 12 L. G. R.
525.
Smith V. Callander, 70 L. J. P.C. 53;
[1901] A.C. 297 ; 84 L. T. 801 : followed in
Taylor v. Steel-Maitland, [1913] S. C. 562.
Smith V. Lion Brewery Co., 80 L. J. K.B.
566; [1911] A.C. 150; 104 L. T. 321; 75 J. P.
273; 55 S. J. 269; 27 T. L. R. 261 : principle
of, applied in Usher's Wiltshire Brewery v.
Bruce, 84 L. J. K.B. 417; [1915] A.C. 433;
112 L. T. 651; 6 Tax Cas. 399; 69 S. J. 144;
31 T. L. R. 104.
Smith V. Lucas, 18 Ch. D. 531; 45 L. T.
460; 30 W. R. 451 : applied in Pullan v. Koe,
82 L. J. Ch. 37; [1913] 1 Ch. 9; 107 L. T.
811; 57 S. J. 97.
Smith V. Paringa Mines, 75 L. J. Ch. 702;
[1906] 2 Ch. 193; 94 L. T. 571; 13 Manson.
316 : distinguished in Barron v. Potter,
83 L. J. Ch. 646; [1914] 1 Ch. 895; 110 L. T.
929 ; 58 S. J. 516 ; 30 T. L. R. 401.
Smith V. Poole, 10 L. J. Ch. 192; 12 Sun.
17 : not followed in Beavan, In re, 81 L. J.
Ch. 113; [1912] 1 Ch. 196; 105 L. T. 784.
Smith V. Smith, 31 L. J. Ch. 91; 3 Giff.
263; 5 L. T. 302 : explained and distinguished
in Turner v. Turner, 80 L. J. Ch. 473; [1911]
1 Ch. 716; 104 L. T. 901.
Smith V. Webster, 45 L. J. Ch. 528; 3 Ch.
D. 49; 35 L. T. 44; 24 W. R. 894 : distin-
guished in Daniels v. Trefusis. 83 L. J. Ch.
579 ; [1914] 1 Ch. 788; 109 L. T. 922 ; 58 S. J.
271.
2100 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Smith v. Whiteman, 78 L. J. K.B. 1073:
[1909] 2 K.B. 437 ; 100 L. T. 770 : followed
in Hall v. Whitetnan, 81 L. J. K.B. 660;
[1912] 1 K.B. 683; 105 L. T. 854; 19 Manson,
143; 28 T. L. K. 161.
Smith-Bosanquet's Settled Estates, In re,
107 L. T. 191 : foUou-ed in Maryon-Wilson's
Settled Estates. In re. 84 L. J. Ch. 121:
[1915] 1 Ch. 29; 112 L. T. 111.
Smithies v. Bridge, 71 L. J. K.B. 555:
[1902] 2 K.B. 13 ; 87 L. T. 167 ; 50 W. R.
686; 66 J. P. 740 : commented on in Scott v.
Jack. [1912] S. C. (J.) 87.
Smurthwaite v. Hannay, 63 L. J. Q.B. 737;
[1894] A.C. 494 : 71 L. T. 157 ; 43 W. E. 113 :
dictum of Lord Eussell of Killowen, C.J., in,
considered in Sandeman v. Tyzack and Bran-
foot Steamship Co., [1913] A.C. 680 ; 109 L. T.
580; 57 S. J. 752; 29 T. L. R. 694.
Snowdon, Ex parte, 50 L. J. Ch. 540;
17 Ch. D. 44; 44 L. T. 830; 29 W. R. 654 :
explained in Stirling v. Burdett, [1911] 2 Ch.
418; 105 L. T. 573.
Soley, In re, 17 T. L. E. 118: applied in
Cunningham, In re ; Dulcken v. Cunningham,
83 L. J. Ch. 342 ; [1914] 1 Ch. 427 ; 110 L. T.
371.
Somes, In re, 65 L. J. Ch. 262; [1896]
1 Ch. 250; 74 L. T. 49; 44 W. R. 236 : dis-
tinguished in Jones's Settlement, In re,
84 L. J. Ch. 406: [1905] 1 Ch. 373; [1915]
W.C. & I. Rpp. 277; 112 L. T. 1067: 59 S. J.
364.
South African Territories v. Wallington,
67 L. J. Q.B. 470: [1898] A. C. 309; 78 L. T
426 ; 46 W. R. 545 : applied in Kuala Pahi
Rubber Estates v. Mowbray, 111 L. T. 1072
and in Smelting Corporation . hi re. 84 L. J
Ch. 571; [1915] 1 Ch. 472; 113 L. T. 44
[1915] H. B. R. 126.
South Llanharran Colliery Co., In re,
12 Ch. D. 503 : distinguished in Menell. Lim.,
In re; Regent Street Fur Co. v. Diamant,
84 L. J. Ch. .593; [1915] 1 Ch. 759; 113 L. T.
77; [1915] H. B. E. 141; 31 T. L. E. 270.
South Wales Railway v. Swansea Local
Board of Health, 24 L. J. M.C. 30; 4 E. & B.
189 : discussed in Lancashire and Yorkshire
Railway v. Liverpool Corporation, 84 L. J.
K.B. 1273; [1915] A.C. 152; 111 L. T. 596;
78 J. P. 409; 12 L. G. E. 771; 58 S. J. 663;
30 T. L. E. 563.
Southampton Guardians v. Bell, 21 Q.B. D.
297 : applied in Porter, Amphlett & Jones,
In re, 81 L. J. Ch. 544; [1912] 2 Ch. 98;
107 L. T. 40; 56 S. J. 521.
Southport and Lytham Tramroad Act, In re,
80 L. J. Ch. 1.37 ; [1911] 1 Ch. 120: 104 L. T.
154 : distinguished in West Yorkshire Tram-
ways Bill, In re, 82 L. J. Ch. 98; [1913]
1 Ch. 170; 108 L. T. 18; 11 L. G. E. 78;
57 S. J. Ill; 29 T. L. E. 115.
Southwark and Yauxhall Water Co. v.
Quick, 47 L. J. Q.B. 2.58: 2 Q.B. D. 315:
28 W. E. 341 : considered in Birmingham and
Midland Motor Omnibus Co. v. London and
'North-Western Railway, 83 L. J. K.B. 474;
[1913] 3 K.B. 850; 109 L. T. 64; 57 S. J. 752.
Spackman v. Evans, 37 L. J. Ch. 752:
L. E. 3 H.L. 171; 19 L. T. 151 : principles
stated in, discussed and applied in Republic
of Bolivia Exploration Syndicate, In re,
83 L. J. Ch. 235; [1914] 1 Ch. 139; 110 L. T.
141 ; 21 Manson. 67 ; 58 S. J. 321 ; 30 T. L. E.
146.
Spence v. Union Marine Insurance Co.,
37 L. J. C.P. 169 ; L. E. 3 C.P. 427 ; 18 L. T.
632 ; 16 W. E. 1010 : distinguished in Sande-
man V. Tyzack and Branfoot Steamship Co.,
[1913] A.C. 680; 109 L. T. 580; 57 S. J. 752;
29 T. L. E. 694.
Spencer v. Bullock, 2 Ves. 687: distin-
guished in Firth, In re: Loveridge v. Firth,
83 L. J. Ch. 901 : [1914] 2 Ch. 386 : 111 L. T.
332.
Spencer-Cooper, In re; Poe v. Spencer-
Cooper, 77 L. J. Ch. 64; [1908] 1 Ch. 130;
98 L. T. 344 : discussed in Palmer, In re;
Leventhorpe v. Palmer, 106 L. T. 319.
Spickernell v. Hotham Kay, 669 : examined
and explained in Pullan v. Koe, 82 L. J. Ch.
37 ; [1913] 1 Ch. 9 ; 107 L. T. 811 ; 57 S. J. 97.
Spiers v. Elderslie Steamship Co., [1909]
S. C. 1259; 46 Sc. L. R. 893: applied in
Luckwill V. Auchan Steamship Co., [1913]
W.C. & I. Rep. 167; 108 L. T. 52.
Squire v. Squire, 74 L. J. P. 1 ; [1905] P. 4 ;
92 L. T. 472 ; 21 T. L. E. 41 : approved in
Oilier V. Oilier, 84 L. J. P. 23; [1914] P. 240:
111 L. T. 697 ; 58 S. J. 754.
Staffordshire Gas and Coke Co., In re,
66 L. T. 413 : overruled in Channell Collieries
V. Dover, St. Margaret's and Martin Mill
Light Railway, 84 L. J. Ch. 28: [1914] 2 Ch.
506; 30 T. L. E. 647.
Staffordshire Gas and Coke Co., In re;
Nicholson, ex parte, 66 L. T. 413 : overruled
in Channell Collieries Trust v. St. Margaret's.
Dover, and Martin Mill Light Railway,
84 L. J. Ch. 28; [1914] 2 Ch. 506; 111 L. T.
1051; 21 Manson, 328; 30 T. L. E. 647.
Staffordshire Joint Bank v. Weaver, [1884]
W. N. 78; Bitt. Ch. Cas. 243: overruled in
Deighton v. Cockle, 81 L. J. K.B. 497 ; [1912]
1 K.B. 206; 105 L. T. 802.
Staight V. Burn, 39 L. J. Ch. 289; L. E.
5 Ch. 163; 22 L. T. 831; 18 W. E. 243:
followed and applied in Bailey v. Holborn d
Frascati, Lim., 83 L. J. Ch. 515 ; [1914] 1 Ch.
.598; 110 L. T. 574; 58 S. J. 321.
Stamford (Earl), In re; Payne v. Stamford,
65 L. J. Ch. 134; [1896] 1 Ch. 288 : applied
in Cotter, In re, 84 L. J. Ch. 337; [1915]
1 Ch. 307; 112 L. T. 340; 59 S. J. 177.
Explained, Distinguished, and Gommkntkd On.
2101
Stamford, Spalding, and Boston Banking
Co. V. Smith, 61 L. J. Q.B. 405; [1892] IQ.B.
765 : applied in Beavan, In re, 81 L. J. Ch.
113; [1912] 1 Ch. 196; 105 L. T. 784.
Standing v. Eastwood, [1912] W.C. Eep.
200; 106 L. T. 477: discussed and distin-
guished in Goodsell v. " Lloyds " {Owners),
83 L. J. K.B. 1733; [1914] 3 K.B. 1001;
[1914] W.C. & I. Eep. 585; 111 L. T. 784;
30 T. L. R. 622.
Stanford v. Roberts, 53 L. J. Ch. 338:
26 Ch. D. 155 ; 50 L. T. 147 : explained and
followed in Morgaji d Co., In re, 84 L. J. Ch.
249 ; [1915] 1 Ch. 182 ; 112 L. T. 239 ; 59 S. J.
289.
Stanland v. North-Eastern Steel Co., [1907]
2 K.B. 42571. : distinguished in New Monckton
Collieries v. Keeling, 80 L. J. K.B. 1205;
[1911] A.C. 648; 105 L. T. 337 ; 55 S. J. 687;
27 T. L. R. 551.
Stanley, In re, 17 L. E. Ir. 487 : disapproved
in HoUinshead v. Egan, Lim., 83 L. J. P.C.
74; [1913] A.C. 564; 109 L. T. 681; 20 Man-
son, 323; 57 S. J. 661; 29 T. L. R. 640:
approved and followed in Harvey, In re,
[1912] 2 Ir. R. 170.
Statham v. Brighton Marine Palace and
Pier Co., 68 L. J. Ch. 172; [1899] 1 Ch. 199;
80 L. T. 73; 47 W. E. 185;" 6 Manson, 308 :
doubted in Newburgh and North Fife Railway
V. North British Railway, [1913] S. C. 1166.
Stathatos v. Stathatos, 82 L. J. P. 46;
[1913] P. 46; 107 L. T. 592; 56 S. J. 114;
29 T. L. R. 54 : approved in De Montaigu v.
De Montaigu, 82 L. J. P. 125 ; [1913] P. 154.
Stebbing v. Metropolitan Board of Works,
40 L. J. Q.B. 1; L. E. 6 Q.B. 37; 23 L. T.
530; 19 W. E. 73 : discussed and explained in
Corrie v. MacDermott, 83 L. J. P.C. 370;
[1914] A.C. 1056 ; 111 L. T. 952.
Stedham, In the goods of, 50 L. J. P. 75 ;
6 P. D. 205 : followed in Carleton, In the
goods of, [19151 2 Ir. R. 9.
Steel V. Dartford Local Board, 60 L. J.
Q.B. 256 : distinguished in Thompson v. Brad-
ford Corporation, 84 L. J. K.B. 1440; [1915]
3 K.B. 13; 79 J. P. 364; 13 L. G. R. 884;
59 S. J. 495.
Steel V. Lester, 47 L. J. C.P. 43; 3 C.P. D.
121; 37 L. T. 642; 26 W. R. 212 : followed
in Associated Portland Cement Manufacturers
V. Ashton, 84 L. J. K.B. 519 ; [1915] 2 K.B. 1 ;
112 L. T. 486; 20 Cora. Cas. 165.
Steel V. Scott, 59 L. J. P.C. 1 : 14 App. Cas.
601 ; 61 L. T. 597 ; 38 W. R. 452 ; 5 T. L. R.
705 : distinguished in Kish v. Taylor, 81 L. J.
K.B. 1027; [1912] A.C. 604; lOiS L. T. 900;
17 Com. Cas. 355; 56 S. J. 518; 28 T. L. R.
425.
Steel V. Young, [1907] S. C. 360: discussed
and doubted in Forrest v. Scottish County
Investment Co., [1915] S. C. 115.
Stephens, In re; Warburton v. Stephens,
59 L. J. Ch. 109; 43 Ch. D. 39; 61 L. T. 609 :
query of Kay, J., in, answered in the negative
in Raggi, In re; Brass v. Young dt Co.,
82 L. j. Ch. 396; [1913] 2 Ch. 206 ; 108 L. T.
917.
Stepney and Bow Educational Foundation
(Goyernors) v. Inland Revenue Commis-
sioners, 82 L. J. K.B. 1300; [1913^ 3 K.B.
570; 109 L. T. 165; 29 T. L. E. 631 : point
in, overruled in Camden (Marquis) v. Inland
Revenue Commissioners, 83 L. J. K.B. 509;
[1914] 1 K.B. 641 ; 110 L. T. 173.
Stevens v. Chown, 70 L. J. Ch. 571 ; [1901J
1 Ch. 894; 84 L. T. 796; 49 W. R. 460;
65 J. P. 470 : applied in Fraser v. Fear,
107 L. T. 423; 56 S. J. 311.
Stimpson v. Emmerson, 9 L. T. (o.s.) 199;
followed in King and Duveen, In re, 82 L. J.
K.B. 733; [19131 2 K.B. 32; 108 L. T. 844.
Stinson's Estate, In re, [1910] 1 Ir. R. 13 :
considered in Fauntleroy v. Beebe, 80 L. J.
Ch. 654; [1911] 2 Ch. 257; 104 L. T. 704;
55 S. J. 497 : followed in Cross's Trust, In re,
[1915] 1 Ir. R. 304.
Stock v. Meakin, 69 L. J. Ch. 401 : [1900 j
1 Ch. 683; 82 L. T. 248; 48 W. R. 420:
distinguished in Farrer d Gilbert's Contract,
In re, 83 L. J. Ch. 177; [1914] 1 Ch. 125;
110 L. T. 23; 58 S. J. 98.
Stockdale v. Ascherberg, 73 L. J. K.B. 206;
[1904] 1 K.B. 447; 90 L. T. Ill; 52 W. R.
289 ; 68 J. P. 241 ; 2 L. G. R. 529 ; 20 T. L. E.
235 : distinguished in Howe v. Botwood,
82 L. J. K.B. 569; [1913] 2 K.B. 387;
108 L. T. 767; 29 T. L. R. 437.
Stockton and Middlesbrough Water Board v.
Kirkleatham Local Board, 63 L. J. Q.B. 56;
[1893] A.C. 444; 69 L. T. 661; 57 J. P. 772 :
distinguished in Perth Gas Co. v. Perth Cor-
poration, 80 L. J. P.C. 168; [1911] A.C. 506:
105 L. T. 266 ; 27 T. L. R. 526.
Stocks V. Wilson, 82 L. J. K.B. 598; [1913]
2 K.B. 235; 108 L. T. 834; 20 Manson, 129;
29 T. L. R. 352 : followed in Leslie v. Shiell,
29 T. L. R. 554.
Stoddart v. Hawke, 71 L. J. K.B. 133:
[1902] 1 K.B. 353 : 85 L. T. 687 ; 50 W. R. 93 ;
66 J. P. 68 : applied in Hodgson v. Macpher-
son, [1913] S. C. (J.) 68.
Stokes V. Clendon, 3 Swanst. 150ji. : fol-
lowed in Gee v. Liddell, 82 L. J. Ch. 370;
[1913] 2 Ch. 62; 108 L. T. 913.
Stokes v. Stokes, 80 L. J. P. 142: [1911]
P. 195; 105 L. T. 416; 75 J. P. 502; 55 S. J.
690 ; 27 T. L. R. 553 : approved and followed
in Blackledge v. Blackledge, 82 L. J. P. 13;
2102 Cases Followed, Not Followed, Approved, Overruled, Questioned,
[1913] P. 9; 107 L. T. 720; 23 Cox C.C. 230;
57 S. J. 159; 29 T. L. E. 120 : considered in
McGregor v. Telford, 84 L. J. K.B. 1902;
[1915] 3 K.B. 237; 113 L. T. 84; 31 T. L. E.
512.
Stone V. Midland Railway, 73 L. J. K.B.
392; [1904] 1 K.B. 669; 90 L. T. 194;
52 W. E. 491; 20 T. L. E. 225 : discussed
and distinguished in Independent Newspapers,
Lim. V. Great Northern Railway (Ireland),
[1913] 2 Ir. E. 255.
Strang, Steel & Co. v. Scott, see Steel v.
Scott.
Strangways, In re; Hickley v. Strangways,
56 L. J. Ch. 195; 34 Ch. D. 423 : distinguished
in Llewellyn, In re, 80 L. J. Ch. 259; [1911]
1 Ch. 451 ; 104 L. T. 279 ; 55 S. J. 254.
Stretch v. White, 25 J. P. 485 : followed in
Lambert v. Rowe, 83 L. J. K.B. 274; [1914]
1 K.B. 38; 109 L. T. 939; 78 J. P. 20;
12 L. G. E. 68; 23 Cox C.C. 696.
Stretton v. Great Western and Brentford
Railway, 40 L. J. Ch. 50; L. E. 5 Ch. 7-51;
23 L. T. 379 : distinguished in London Cor-
poration V. Horner, 111 L. T. 512; 78 J. P.
229; 12 L. G. E. 832.
Stribling v. Halse, 55 L. J. Q.B. 15;
16 Q.B. D. 246 : disapproved in O'Brien v.
McCarthy, [1912] 2 Ir. E. 17.
Stringer's Estate, In re, 46 L. J. Ch. 633;
6 Ch. D. 1; 37 L. T. 233; 25 W. E. 815 :
considered and applied in Tennant's Estate,
In re, [1913] 1 Ir. E. 280.
Strong V. Bird, 43 L. J. Ch. 814; L. E.
18 Eq. 315; 30 L. T. 745: explained and
followed in Pink, In re, 81 L. J. Ch. 753;
[1912] 2 Ch. 528 ; 107 L. T. 241 : applied in
Goff, In re; Feather sionehaugh v. Murphy,
111 L. T. 34; .58 S. J. 535.
Stroud V. Norman, 23 L. J. Ch. 443; Kay,
313 : distinguished in Vatcher v. Paull,
84 L. J. P.C. 86; [1915] A.C. 372; 112 L. T.
737.
Strutt V. Clift, 80 L. J. K.B. 114; [1911]
I K.B. 1; 103 L. T. 722; 74 J. P. 471;
8 L. G. E. 989 ; 27 T. L. E. 14 : distinguished
in Phelon and Moore v. Keel, 83 L. J. K.B.
1516; [1914] 3 K.B. 165; 78 J. P. 247.
Studd V. Cook, 8 App. Cas. 577 : observa-
tions of Lord Selbome in, applied in Miller.
In re; Baillie v. Miller, 83 L. J. Ch. 457;
[1914] 1 Ch. 511 ; 110 L. T. 505 ; 58 S. J. 415.
Sturges V. Bridgman, 48 L. J. Ch. 785;
II Ch. D. 852; 41 L. T. 219; 28 W. E. 200 :
distinguished in Wood v. Conway Corporation,
83 L. J. Ch. 498; [1914] 2 Ch. 47; 110 L. T.
■917; 78 J. P. 249; 12 L. G. E. 571.
Suffolk County Lunatic Asylum v. Stow
Union, 76 L. T. 494: dictum of Wright, J., in
(which was followed in Suffolk County Lunatic
Asylum, v. Nottingham Union, 69 J. P. 120),
overruled in Glamorgan County Asylum v.
Cardiff Union, 80 L. J. K.B. 578; [1911]
I K.B. 437; 103 L. T. 819; 75 J. P. 28;
9 L. G. E. 212.
Summerlee Iron Co. v. Freeland, 82 L. J.
P.C. 102; [1913] A.C. 221; [1913] W.C. &
I. Eep. 302; 108 L. T. 465; 57 S. J. 281;
20 T. L. E. 277 : applied in Cooper v. Wales,
84 L. J. K.B. 1321; [1915] 3 K.B. 210;
[1915] W.C. & I. Eep. 307; 59 S. J. 578;
31 T. L. E. 506.
Sunlight, The, 73 L. J. P. 25; [1904] P.
100 ; 90 L. T. 32 ; 9 Asp. M.C. 509 : considered
in The Llanelly, 83 L. J. P. 37; [1914] P. 40;
110 L. T. 269 ; 30 T. L. E. 154.
Surbiton Urban Council v. Calender's Cable
Co., 8 L. G. E. 244 ; 74 J. P. 88 : followed in
Poole Corporation v. Bournemouth Corpora-
tion, 103 L. T. 828; 75 J. P. 13.
Sutton v. Great Northern Railway, 79 L. J.
K.B. 81 ; [1909] 2 K.B. 791 ; 101 L. T. 175 :
applied in Taylor v. Cripps, 83 L. J. K.B.
1538; [1914] 3 K.B. 989; [1914] W.C. & I.
Eep. 515; 111 L. T. 780; 30 T. L. E. 616.
Swain v. Follows and Bate, 56 L. J. Q.B.
310; 18 Q.B. D. .585; 56 L. T. 335; 35 W. E.
403 : followed in Wilcox v. Wallis Crown Cork
and Syphon Co., 58 S. J. 381.
Swansea Improvements and Tramway Co.
V. Swansea Urban Sanitary Authority, 61 L. J.
M.C. 124; [1892] 1 Q.B. 357: 66 L. T. 119;
40 W. E. 283; 56 J. P. 248: approved in
Tottenham Urban Council v. Metropolitan
Electric Tramways, 83 L. J. K.B. 60; [1913]
A.C. 702; 109 L. T. 674; 77 J. P. 413;
II L. G. E. 1071; 57 S. J. 739; 29 T. L. E.
720.
Swansea Yale v. Rice, 81 L. J. K.B. 672;
[1912] A.C. 238; 104 L. T. 658; 12 Asp. M.C.
47 ; 55 S. J. 497 ; 27 T. L. E. 440 : applied in
Lee V. Stag Line, 107 L. T. 509; 56 S. J. 720.
Swanston v. Twickenham Local Board,
48 L. J. Ch. 623 ; 11 Ch. D. 838 ; 40 L. T. 704 :
followed and applied in Metropolitan Water
Board v. London, Brightoru, and South Coast
Railway, 83 L. J. K.B. 1491 ; [1914] 3 K.B
787 ; 111 L. T. 627.
Swinburne v. Milburn, 54 L. J. Q.B. 6 ;
9 App. Cas. 844 ; 52 L. T. 222 ; 33 W. E. 325 :
followed in Wynn v. Conway Corporation,
84 L. J. Ch. 20.3; [1914] 2 Ch. 705; 111 L. T.
1016; 78 J. P. 380; 13 L. G. E. 137; 59 S. J.
43; 30 T. L. E. 666.
Sword V. Cameron, 1 Dunlop, 493: distin-
guished in Canadian Pacific Railway v.
Frichette, 84 L. J. P.C. 161; [1915] A.C. 871;
31 T. L. E. 529.
Explained, Distixguished, axd Commented Ox.
2103
Syer v. Gladstone, 30 Ch. I). 614 : con-
sidered and followed in Lysons, In re; Beck
V. Lysovs, 56 S. J. 705.
Sykes v. Sheard, 33 Beav. 114 : considered
in GosweU's Trusts, In re, 84 L. J. Ch. 719;
[1915] 2 Ch. 106; 113 L. T. 319; 59 S. J. 579.
Sykes v. Sowerby Urban Council, 69 L. J.
Q.B. 464; [1900] 1 Q.B. 584; 82 L. T. 177; ;
64 J. P. 340 : applied in Phillimore v. Watford j
Rural Council, 82 L. J. Ch. 514; [1913] 2 Ch. j
434; 109 L. T. 616; 57 S. J. 741 : followed in !
Yorkshire (W.R.) Rivers Board v. Linthwaite {
Urban Council (No. 2), 84 L. J. K.B. 1610;
79 J. P. 433; 13 L. G. R. 772.
Symes, Ex parte, 103 L. T. 428: 75 J. P.
33; 9 L. G. R. 154; 22 Cox C.C. 346;
27 T. L. R. 21 : followed in White v. Jackson,
84 L. J. K.B. 1900; 113 L. T. 783; 79 J. P.
447; 31 T. L. R. 505.
Syred v. Carruthers, 27 L. J. M.C. 273;
E. B. & E. 469; 4 Jur. (n.s.) 549; 6 W. R.
595 : approved in Godman v. Crofton, 83 L. J.
K.B. 1524 ; [1914] 3 K.B. 803 : followed in
Wills V. McSherry, 82 L. J. K.B. 71; [1913]
1 K.B. 20; 107 L. T. 848; 77 J. P. 65;
23 Cox C.C. 254; 29 T. L. R. 48.
T.
Tavarone Mining Co., In re; Pritchard's
Case, 42 L. J. Ch. 768; L. R. 8 Ch. 956;
29 L. T. 363 ; 21 W. R. 829 : distinguished in
Hickman v. Kent (or Romney Marsh) Sheep
Breeders' Association, 84 L. J. Ch. 688;
[1915] 1 Ch. 881 ; 113 L. T. 1.59 ; -59 S. J. 478.
Taylor, In re, 56 L. J. Ch. 597: followed
in Wasserberg. In re, 84 L. J. Ch. 214; [1915]
1 Ch. 195 ; 112 I.. T. 242 ; 59 S. J. 176.
Taylor, Ex parte, 1 Jac. & W. 483 : applied
in Woodward, In re; Kenway v. Kidd, 82 L. J.
Ch. 230; [1913] 1 Ch. 392; 108 L. T. 635;
57 S. J. 426.
Taylor v. Best, 23 L. J. C.P. 89; 14 C. B.
487 : considered in Republic of Bolivia Ex-
ploration Syndicate, In re, 83 L. J. Ch. 226;
[1914] 1 Ch. 139; 109 L. T. 741; 110 L. T.
141 ; 58 S. J. 173 ; 30 T. L. R. 78.
Taylor v. Grange, 49 L. J. Ch. 794 : 15 Ch.
D. 165 : applied in Dodds V. Cattell, 83 L. J.
Ch. 721; [1914] 2 Ch. 1.
Taylor v. Meads, 34 L. J. Ch. 203 ; 4 De G.
J. & S. 597; 5 N. R. 348; 11 Jur. (n.s.)
166 ; 12 L. T. 6 ; 13 W. R. 394 : applied in
Mackenzie, In re, 80 L. J. Ch. 443; [1911]
1 Ch. 578; 105 L. T. 154; 55 S. J. 406;
27 T. L. R. 337.
Taff Yale Railway v. Jenkins, 82 L. J. K.B.
49; [1913] A.C. 1; 107 L. T. 564; 57 S. J.
27; 29 T. L. R. 19: applied in Berry v.
Humm. 84 L. J. K.B. 918; [1915] 1 K.B.
627; 31 T. L. R. 198.
Talbot V. Frere, 9 Ch. D. 568; 27 W. R.
148 : commented on in Thome d Son, him..
In re, 84 L. J. Ch. 161; [1914] 2 Ch. 438;
112 I.. T. 30: [1915] H. B. R. 19; 58 S. J.
7.55.
Tanner v. Heard, 23 Beav. 555 : followed in
Williams v. Jones, 55 S. J. 500.
Tanner v. Smart, 5 L. J. (o.s.) K.B. 218;
6 B. & C. 603 : distinguished in Brown v.
Mackenzie, 29 T. L. R. 310.
Tapster v. Ward, 101 L. T. 503: followed
in Phillips, In re, 83 L. J. K.B. 1364; [1914]
2 K.B. 689; 110 L. T. 939; 58 S. J. 364.
Tatham v. Reeve, 62 L. J. Q.B. 30; [1893J
1 Q.B. 44; 67 L. T. 683; 41 \V. R. 174;
57 J. P. 118 : distinguished in O'Shea, In
re, 81 L. J. K.B. 70; [1911] 2 K.B. 981;
105 L. T. 486.
Tattersall v. National Steamship Co.,
53 L. J. Q.B. 332; 12 Q.B. D. 297; 50 L. T.
299: 32 W. R. 566; 5 Asp. M.C. 206 : con-
sidered in Bank of Australasia v. Clan Line
Steamers, 84 L. J. K.B. 1250; [1916]
1 K.B. 39.
Taylor v. Roe, 63 L. J. Ch. 282; [1894]
1 Ch. 413: 70 L. T. 232: 42 \Y. R. 426:
followed and applied in Alexander v. Curragh,
[1915] 1 Ir. R. 273.
Taylor v. Taylor, 43 L. J. Ch. 314; L. R.
17 Eq. 324 : must be treated as having been
overruled by Howarth, In re (78 L. J. Ch.
687; [1909] 2 Ch. 19): so held in Young,
In re; Brown v. Hodgson, 81 L. J. Ch. 817;
[1912] 2 Ch. 479; 107 L. T. 380.
Taylor's Settlement, In re, 22 L. J. Ch.
142; 9 Hare, 59G : considered in GoswelVs
Trusts, In re, 84 L. J. Ch. 719; [1915] 2 Ch.
106; 113 L. T. 319; 59 S. J. 579.
Taylor's Trusts, In re, 74 L. J. Ch. 419;
[1905] 1 Ch. 734; 92 L. T. 558; 53 W. R.
441 : followed and applied in Sale, In re;
Nisbet V. Philp, [1913] 2 Ch. 697.
Tea Corporation, In re; Sorsbie v. Tea
Corporation, 73 L. J. Ch. 57 : [1904] 1 Ch. 12;
89 L. T. 516; 52 W. R. 177; 11 Manson, 34;
20 T. L. R. 57 : followed in Sandwell Park
Colliery Co., In re, 83 L. J. Ch. 549; [1914]
1 Ch. 589; 110 L. T. 766; 58 S. J. 432.
Templeman v. Warrington, 13 Sim. 267:
followed in Firth. In re; Loveridge v. Firth,
83 L. J. Ch. 901 ; [1914] 2 Ch. 386 ; 111 L. T.
332.
2104 Cases Followed, Not Followed, Approved, Overruled, Questioxj:d,
Te Teira v. Te Roera Tareha, 71 L. J.
P.C. 11; [1902] A.C. 56; 85 L. T. 558 : dis-
tinguished in Manu Kapua v. Para Haimona,
83 L. J. P.C. 1: [1913] A.C. 761: 108 L. T.
977.
Thacker v. Hardy, 48 L. J. Q.B. 289;
4 Q.B. D. 685; 39 L. T. 595; 27 W. E. 158 :
definition of gaming and wagering condition
formulated by Cotton, L.J., in, considered
and applied in Richards v. Starch, 80 L. J.
K.B. 213: [1911] 1 K.B. 296; 103 L. T. 813;
27 T. L. E. 29.
Thames Conservators v. Gravesend Cor-
poration, 79 L. J. K.B. 331: [19101 1 K.B.
442 ; 100 L. T. 964 ; 73 J. P. 381 ; 7 L. G. E.
868 : is inconsistent with the decisions of the
Court of Appeal in Kirkheaton District Local
Board v. Ainley (61 L. J. Q.B. 812; [1892]
2 Q.B. 274) and in Yorkshire West Riding
Council V. HolmHrth Urban Sanitary Authority
(63 L. J. Q.B. 485 ; [1894] 2 Q.B. 842) and
is therefore not binding; so held by Avory, J.,
in Rochford Rural Council v. Port of London
Authority, 83 L. J. K.B. 1066 : [1914] 2 K.B.
916 ; 78 J. P. 329.
Thatcher's Trusts, In re, 26 Beav. 365 : fol-
lowed in Hewett's Settlement. In re, 84 L. J.
Ch. 715: [1915] 1 Ch. 810: 113 L. T. 315;
59 S. J. 476.
Thompson v. Cohen, 41 L. J. Q.B. 221 ;
L. E. 7 Q.B. 527 ; 26 L. T. 693 : explained
and distinguished in Lind, In re, 84 L. -J.
Ch. 884; [1915] 2 Ch. 345; 59 S. J. 651.
Thomson v. Sunderland Gas Co., 46 L. J
Ex. 710; 2 Ex. D. 429; 37 L. T. 30
25 W. E. 809 : followed in Schweder v
Worthing Gas Light and Coke Co., 81 L. J
Ch. 102; [1912] 1 Ch. 83; 105 L. T. 670,
76 J. P. 3; 10 L. G. E. 19; 56 S. J. 53;
28 T. L. E. 34.
Thomson's Estate, In re; Herring v.
Barrow, 49 L. J. Ch. 622; 14 Ch. D. 263:
43 L. T. 35 ; 28 W. E. 802 : dictum of James,
L.J., in, not followed in Ryder, In re; Burton
V. Kearsley, 83 L. J. Ch. 653; [1914] 1 Ch.
865; 110 L. T. 970; 58 S. J. 556.
Thorn v. City Rice Mills, 58 L. J. Ch. 297 ;
40 Ch. D. 3.57 ; 60 L. T. 359; 37 W. E. 398 :
distinguished in Harris Calculating Machine
Co., In re, 83 L. J. Ch. 545; [1914] 1 Ch.
920; 110 L. T. 997; 58 S. J. 455.
ThornhUI v. Weeks (No. 2), 82 L. J. Ch.
485: [1913] 2 Ch. 464; 109 L. T. 146;
11 L. G. E. 1183 : followed in Thornhill v.
Weeks {No. 3), 84 L. J. Ch. 282; [1915] 1 Ch.
106 ; 111 E. T. 1067 ; 78 J. P. 154 : 12 L. G. E.
.597.
Thatcher's Trusts, In re, 53 L. J. Ch. 1050; .Thornton v. Hawley, 10 Ves. 129: cou-
26 Ch. D. 426; 32 W. E. 679: followed in j ^f '^v^Jg^^fqT^/i Vh 7(^ • i'J^'t T ^19
Cooper, In re, 82 L. J. Ch. 222; [1913] 1 Ch. | Ch. 719 . [191.d] 2 Ch. 106; 113 L. T. 319;
350 ; 108 L. T. 293 ; 57 S. J. 389. I
59 S. J. 579.
Thomas, In re; Wood v. Thomas, 60 L. J.
Ch. 781; [1891] 3 Ch. 482; 65 L. T. 142;
40 W. E. 75 : followed in Godfree, In re,
83 L. J. Ch. 734; [1914] 2 Ch. 110.
Thomas v. Brigstocke, 4 Euss. 64 : followed
in Yorkshire Insurance Co. v. Metropolitan
Amalgamated Estates. 81 L. J. Ch. 745;
[1912] 2 Ch. 497.
Thomas v. Britnell, 2 Ves. sen. 313: fol-
lowed in Major, In re ; Taylor v. Major,
83 L. J. Ch. 461: [19141 1 Ch. 278; 110 L. T.
422 ; 58 S. J. 286.
Thomas v. Devonport Corporation, 69 L. J.
Q.B. 51; [1900] 1 Q.B. 16; 81 L. T. 427;
48 W. E. 89; 63 J. P. 740: discussed in
Republic of Bolivia Exploration Syndicate,
In re, 83 L. J. Ch. 235; [1914] 1 Ch. 139;
no L. T. 141; 21 Manson, 67; 57 S. J. 321;
30 T. L. E. 146.
Thomas v. Dey, 24 T. L. E. 272: not fol-
lowed in Keen v. Price, 83 L. J. Ch. 865;
[1914] 2 Ch. 98 ; 58 S. J. 495 ; 30 T. L. E. 494.
Thomas v. Thomas, 2 K. & J. 79: approved
in Corea v. Appuhamy, 81 L. J. P.C. 151;
[1912] A.C. 230; 105 L. T. 836.
Thwaites v. Foreman, 1 Coll. C.C. 409; on
app., 10 Jur. 483 : followed in Harris, In re,
81 L. -T. Ch. .512; [1912] 2 Ch. 241; 106 L. T.
755.
Tilt Cove Copper Co., In re, 82 L. J. Ch.
.545; [1913] 2 Ch. 588; 109 L. T. 138;
20 Manson, 288; 57 S. J. 773: followed in
Braunstein & Marjolaine, Lim., In re,
112 L. T. 25; 58 S. J. 755.
Tod-Heatley v. Benham, 58 L. J. Ch. 83:
40 Ch. D. 80; 60 L. T. 241; 37 W. E. 38 :
followed in .idams v. Ursell, 82 L. J. Ch. 157;
[1913] 1 Ch. 269; 108 L. T. 292; 57 S. J. 227.
Tolhurst V. Associated Portland Cement
Manufacturers, 71 L. J. K.B. 949; 72 L. J.
K.B. 834: [1902] 2 K.B. 660; [1903] A.C.
414 ; 87 L. T. 465 ; 89 L. T. 196 ; 51 W. E. 81 :
52 W. E. 143 : considered in Sorrentino v.
Buerger, 84 L. J. K.B. 725; [1915] 1 K.B.
307: 112 T>. T. 294: 20 Com. Cas. 132.
Tomalin v. Pearson, 78 L. J. K.B. 863:
[1909] 2 K.B. 61 ; 100 L. T. 685 : 25 T. L. E.
477 : followed in Schwartz v. India-Rubber
and Telegraph Works Co., 81 L. J. K.B.
780; [1912] 2 K.B. 299; 106 L. T. 706;
28 T. L. R. 331.
Explained, Distinguished, and Commented On.
2105
Torrens v. Walker, 75 L. J. Ch. 645;
[1906] 2 Ch. 166; 95 L. T. 409; 54 W. E.
584 : explained and distinguished in Lurcott
V. Wakeley, 80 L. J. K.B. 713; [1911] 1 K.B.
905 ; 104 L. T. 290 ; 55 S. J. 290.
Tottenham Local Board v. Rowell, 46 L. J.
Ex. 432; 1 Ex. D. 514; 35 L. T. 887 : com-
mented on in Metropolitan Water Board v.
Bunn, 82 L. J. K.B. 1024; [1913] 3 K.B. 181;
109 L. T. 132; 57 S. J. 625; 29 T. L. E. 588.
Toulmin v. Steere, 3 Mer. 210 : considered
and distinguished in Whiteley v. DeJaney,
88 L. J. Ch. 349; [1914] A.C. 132; 110 L. T.
434; 58 S. J. 218.
Tower Justices v. Chambers, 73 L. J. K.B.
951; [1904] 2 K.B. 903; 91 L. T. 643;
68 J. P. 581 ; 20 T. L. E. 784 : discussed in
Wernham v. Begem, 83 L. J. K.B. 395;
[1914] 1 K.B. 468 ; 110 L. T. Ill ; 78 J. P. 74.
Tozer v. Lake, 4 C.P. D. 322: followed in
Healey v. Wright, 81 L. J. K.B. 961; [1912]
3 K.B. 249; 76 J. P. 367; 28 T. L. E. 439.
Traflford v. St. Faith's Rural Council,
74 J. P. 297 : doubted by Hamilton, L.J., in
Att.-Gen. v. Horner {No. 2), 82 L. J. Ch.
339; [1913] 2 Ch. 140; 108 L. T. 609;
77 J. P. 257; 11 L. G. E. 784; 57 S. J. 498;
29 T. L. E. 451.
Tracers & Sons v. Cooper, 83 L. J. K.B.
1787; [1915] 1 K.B. 73; 111 L. T. 1088;
20 Com. Cas. 44; 30 T. L. E. 703 : followed
in Pyman Steamship Co. v. Hull and Barnsley
Bailway, 84 L. J. K.B. 1235; [1915] 2 K.B.
729; 112 L. T. 1103; 20 Com. Cas. 259;
31 T. L. E. 243.
Trego V. Hunt, 65 L. J. Ch. 1 ; [18961 A.C.
7; 73 L. T. 575; 44 W. E. 225: rule in,
when applicable, considered in Green v.
Morris. 83 L. J. Ch. 559; [1914] 1 Ch. 562;
110 L. T. 508; 58 S. J. 398; 30 T. L. E. 301.
Tremayne v. Rashleigh, 77 L. J. Ch. 365;
[1908] 1 Ch. 681; 98 L. T. 615: view of
Eve, J., in, dissented from in Heard V.
Gabbett, [1915] 1 Ir. E. 213.
Tremewen v. Permewen, 11 A. & E. 431 ;
applied in Finlay's Estate, In re, [1913]
1 Ir. E. 143.
Trenchard, In re; Trenchard v. Trenchard,
71 L. J. Ch. 178; [1902] 1 Ch. 378; 86 L. T.
196 ; 50 W. E. 266 : considered and followed
in Simpson, In re ; Clarke v. Simpson, 82 L. J.
Ch. 169; [1913] 1 Ch. 277; 108 L. T. 817;
57 P. J. 302.
Trenchard, In re; Ward v. Trenchard,
16 T. L. E. 525 : dissented from in Simp.':on,
In re; Clarke v. Simpson. 82 L. J. Ch. 169;
[1913] 1 Ch. 277 ; 108 L. T. 317 ; 57 S. J. 302.
Trevor v. Whitworth, 57 L. J. Ch. 28;
12 App. Cas. 409; 57 L. T. 457; 36 W. E.
145 : applied in Irish Provident Assurance Co.,
In re, [1913] 1 Ir. E. 352.
Trew V. Perpetual Trustee Co., 64 L. J.
P.C. 49; [1895] A.C. 264; 72 L. T. 241;
43 W. E. 636 : distinguished in Beaumont,
In re; Bradshaw v. Packer, 82 L. J. Ch. 183;
[1913] 1 Ch. 325 ; 108 L. T. 181 ; 57 S. J. 283.
Tringham's Trusts, In re, 73 L. J. Ch.
693; [1904] 2 Ch. 487; 91 L. T. 370;
20 T. L. E. 657 : followed in Cross's Trust,
In re, [1915] 1 Ir. E. 304.
Triquet v. Bath, 3 Burr. 1478: considered
in Bepublic of Bolivia Exploration Syndicate,
In re, 83 L. J. Ch. 226; [1914] 1 Ch. 139;
109 L. T. 741; 110 L. T. 141; 58 S. J. 173;
30 T. L. E. 78.
Tritton, In re; Singleton, ex parte, 61 L. T.
301 : applied in Thynne, In re, 80 L. J.
Ch. 205; [1911] 1 Ch. 282; 104 L. T. 19;
18 Manson, 34.
Tuck, In re; Murch v. Loosemore, 75 L. J.
Ch. 497; [1906] 1 Ch. 692; 94 L. T. 597;
22 T. L. E. 425 : held not applicable in
Aberdonia Cars, Lim. v. Brown, Hughes d
Strachan, Lim., 59 S. J. 598.
Tuck V. Priester, 56 L. J. Q.B. 553;
19 Q.B. D. 629; 57 L. T. 110: applied in
Amber Size and Chemical Co. v. Menzel,
82 L. J. Ch. 573; [1913] 2 Ch. 239; 109 L. T.
520.
Tulk V. Moxhay, 18 L. J. Ch. 83; 2 Phil.
774 : principle of, discussed and explained in
London County Council v. Allen, 83 L. J.
K.B. 1695; [1914] 3 K.B. 642; 111 L. T.
610 : considered in Smith V. Colbourne, [1914]
2 Ch. 533.
Turnbull, In re; Skipper v. Wade, 74 L. J.
Ch. 438; [1905] 1 Ch. 726: 53 W. E. 440:
applied in Snape, In re; Elam v. Phillips,
84 L. J. Ch. 803; [1915] 2 Ch. 179; 113 L. T.
439; 59 S. J. 562.
Turner v. Evans, 22 L. J. Q.B. 412; 2 E. &
B. 512 : approved and followed in Hodsley v.
Dayer-Smith, 83 L. J. Ch. 770; [1914] A.C.
979 ; 58 S. J. 554 ; 30 T. L. E. 524.
Turner v. Moon, 70 L. J. Ch. 822; [1901]
2 Ch. 825 ; 85 L. T. 90 : followed in Eastwood
V. Ashton, 82 L. J. Ch. 313; [1913] 2 Ch. 39;
108 L. T. 759; 57 S. J. 533.
Turner v. Walsh, 50 L. J. P.C. 55 ; 6 App.
Cas. 636; 45 L. T. 50 : considered in Folke-
stone Corporation v. Brockman, 83 L. J. K.B.
745; [1914] A.C. 338; 110 L. T. 884; 78 J. P.
273: 12 L. G. E. 384; 30 T. L. E. 297.
Turner v. Wright, 29 L. J. Ch. 598: 2 De
G. F. & J. 234 : followed in Hanbury's Settled
Estates, 82 L. J. Ch. 428; [1913] 2 Ch. 357;
57 S. J. 646 ; 29 T. L. E. 621.
Turney, In re, 69 L. J. Ch. 1 ; [1899] 2 Ch.
739: 81 \j. T. 548; 48 W. E. 96 : distinguished
in Hume. In re; Public Trustee v. Mabey,
81 L. J. Ch. 382; [1912] 1 Ch. 698; 106 L. T.
335: 56 S. J. 414.
2106 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Tweddle & Co., In re, 80 L. J. K.B. 20;
[1910] 2 K.B. 697 ; 103 L. T. 257 ; 26 T. L. E.
583 : applied in Williams d- Co., In re; Official
Receiver, ex parte, 82 L. J. K.B. 459; [1913]
2 K.B. 88; 108 L. T. 585; 20 Manson, 21;
57 S. J. 285 ; 29 T. L. E. 243.
Tyler, In re; Official Receiver, ex parte,
76 L. J. K.B. 541: [1907] 1 K.B. 865
97 L. T. 30; 14 Manson, 73; 23 T. L. E. 328
distinguished in Phillips, In re. 83 L. J. K.B
1364; [1914] 2 K.B. 689; 110 L. T. 939
58 S. J. 364; and considered in Wells V. Wells
83 L. J. P. 81 ; [1914] P. 157 ; 58 S. J. 555
30 T. L. E. 545.
Tyler v. Tyler, 60 L. J. Ch. 686: [1891J
3 Ch. 252 : followed in Davies, In re; Lloyd v.
Cardigan County Council, 84 L. J. Ch. 493;
[1915] 1 Ch. 543; 112 L. T. 1110; 79 J. P.
291: 13 L. G. E. 437; 59 S. J. 413.
Tynron (Owners) v. Morgan, 78 L. J. K.B.
857 ; [1909] 2 K.B. 66 ; 100 L. T. 641 : fol-
lowed in Chapman v. Sage, 113 L. T. 623.
U.
Union Bank of Kingston-upon-HuU, In re,
49 L. J. Ch. 264 ; 13 Ch. D. 808 ; 42 L. T. 390 :
28 W. E. 808: dictum of Jessel, M.E., fol-
lowed in Demerara Rubber Co.. In re. 82 L. J.
Ch. 220; [1913] 1 Ch. 331; 108 L. T. 318;
20 Manson, 148.
Unity Joint-Stock Mutual Banking Associa-
tion, Ex parte ; King, in re, 27 L. J. Bk. 33 ;
3 De G. & J. 63: 4 Jur. (n.s.) 12.57: 6 W. E.
640 : followed in Stocks v. Wilson. 82 L. J.
K.B. 598; [1913] 2 K.B. 235: 108 L. T. 834;
20 Manson, 129; 29 T. L. E. 352.
Uzielli V. Boston Marine Insurance Co.,
54 L. J. Q.B. 142: 15 Q.B. D. 11 : considered
in British Dominions General Insurance Co.
V. Duder, 84 L. J. K.B. 1401 : [1915] 2 K.B.
394; 113 L. T. 210; 20 Com. Cas. 270:
31 T. L. E. 361.
V.
Vachell v. Roberts, 32 Beav. 140: overruled
in Wareham, In re, 81 L. J. Ch. 578; [1912]
2 Ch. 312 ; 107 L. T. 80 ; 56 S. J. 613.
Van Grutten v. Foxwell, 66 L. J. Q.B.
745; [1897] A.C. 658; 77 L. T. 170 : applied
in Simcoe, In re; Vowler-Simcoe v. Vowler,
82 L. J. Ch. 270; [1913] 1 Ch. 552; 108 L. T.
891 ; 57 S. J. 533.
Yardon's Trusts, In re, 55 L. J. Ch. 259;
31 Ch. D. 275 ; 53 L. T. 895 : explained in
Hargrove. In re, 84 L. J. Ch. 484; [1915]
1 Ch. 398; 112 L. T. 1062; 59 S. J. 364.
Varlo V. Faden, 29 L. J. Ch. 230; 27 Beav.
255 : followed in Hurlbatt, In re, 80 L. J. Ch.
29; [1910] 2 Ch. 553; 103 L. T. 585.
Vaughan, Ex parte; Riddeough, in re,
14 Q.B. U. 25 : followed in Goldburg, In re;
Paqe, e.v parte, 81 L. J. K.B. 663; [1912]
1 K.B. 606; 106 L. T. 431.
Yawdry v. Geddes, 1 Euss. & My. 203 : dis-
tinguished in Xunburnholme (Lord), In re;
Wilson V. Nunburnholme, [1911] 2 Ch. 510:
56 S. J. 34.
Yezey v. Rashleigh, 73 L. J. Ch. 422;
[1904] 1 Ch. 634 ; 90 L. T. 663 ; 52 W. E. 442 :
considered in Williams v. Moss' Empires,
Lim., 84 L. J. K.B. 1767; [1915] 3 K.B. 242:
113 L. T. 560 ; 31 T. L. E. 463.
Yictoria Steamboats, Lim., In re; Smith v.
Wilkinson, 66 L. J. Ch. 21: [1897] 1 Ch. 158;
75 L. T. 374 ; 45 W. E. 135 : distinguished in
New York Taj'icab Co., In re; Sequin v.
The Company. 82 L. J. Ch. 41: [1913] 1 Ch.
1 : 107 L. T. 813 ; 19 Manson, 389 ; 57 S. J. 98 :
followed in Braunstein v. Marjolaine, In re,
112 L. T. 25; 58 S. J. 755.
Yictorian Railways Commissioners v.
Coultas, 57 L. J. P.C. 69: 13 App. Cas. 222;
58 L. T. 390; 37 W. E. 129; 52 J. P. 500 :
discussed in Coyle (or Brown) v. Watson,
83 L. J. P.C. 307; [1915] A.C. 1: [1914]
W.C. & I. Eep. 228; 111 L. T. 347; 58 S. J.
533; 30 T. Tj. E. 501.
Yimbos, Lim., In re, 69 L. J. Ch. 209;
[1900] 1 Ch. 470 ; 82 L. T. 597 ; 48 W. E. 520 :
followed in Deyes v. Wood, 80 L. J. K.B. 553 ;
[1911] 1 K.B. 806; 104 L. T. 404.
Yine v. National Motor Cab Co., 29 T. L. E.
311 : commented on in Bester^nann v. British
Motor Cab Co., 83 L. J. K.B. 1014; [1914]
3 K.B. 181: 110 L. T. 754; 58 S. J. 319;
30 T. L. E. 319.
Yine v. Raleigh, 65 L. J. Ch. 103; [1896]
1 Ch. 37 : 73 L. T. 655 : 44 W. E. 169 : followed
in Johnson. In re, 83 L. J. Ch. 758; [1914]
2 Ch. 134; 58 S. J. 611.
Yint V. Hudspeth, 54 L. J. Ch. 844; 30 Ch.
D. 24; 52 L. T. 774 : observations of Lindlev,
M.E., in, applied in Debtor (No. 68 of 1911),
In re, 80 L. J. K.B. 1224: [1911] 2 K.B. 652:
104 L. T. 905.
Yirginia Carolina Chemical Co. v. Norfolk
and North American Steam Shipping Co.,
81 L. J. K.B. 129: [1912] 1 K.B. 229;
105 L. T. 810; 12 Asp. M.C. 82; 17 Com. Cas.
6; 28 T. L. E. 85 : distinguished in Ingram
and Royle v. Services Maritimes du Trdport
(No. 1), 83 L. J. K.B. 382 : [1914] 1 K.B. 545 ;
109 L. T. 733 ; 19 Com. Cas. 105 ; 12 Asp. M.C.
387 ; 58 S. J. 172 : 30 T. L. E. 79.
Yron Colliery Co., In re, 51 L. J. Ch. 389;
20 Ch. D. 442 : distinguished in Armorduct
Manufacturing Co. v. General Incandescent
Co., 80 L. J. K.B. 1005; [1911] 2 K.B. 143;
104 L. T. 805
Explained, Distinguished, and Commented On.
2107
Yyner v. Wirrall Rural Council, 7 L. G. E.
628; 73 J. P. 242 : statement of Lord Alver-
stone, C.J., in, disapproved by Hamilton, L.J. ,
in Att.-Gen. v. Horner (No. 2), 82 L. J. Ch.
339; [1913] 2 Ch. 140; 108 L. T. 609; 77 J. P.
257 ; 11 L. G. R. 784 ; 57 S. J. 498 ; 29 T. L. R.
451.
W.
Wagstaff V. Edison Bell Phonograph Cor-
poration, 10 T. L. E. 80: discussed and fol-
lowed in Lyons v. Gulliver, 83 L. J. Ch. 281 ;
[1914] 1 Ch. 631; 110 L. T. 284; 78 J. P. 98;
12 L. G. R. 194; 58 S. J. 97 ; 30 T. L. R. 75.
Wagstafif's Settled Estates, In re, 78 L. J.
Ch. 513 ; [1909] 2 Ch. 201 ; 100 L. T. 955 :
followed in Johnson, In re, 84 L. J. Ch. 393;
[1915] 1 Ch. 435; 112 L. T. 935; 59 S. J. 333.
Wakelin v. London and South-Western
Railway, 56 L. J. Q.B. 229; 12 App. Cas. 41;
55 L. T. 709; 35 W. R. 141; 51 J. P. 406 :
rule as to burden of proof laid down by Lord
Halsbury in, applied in McKenzie v. Chilli-
wack Corporation, 82 L. J. P.C. 22; [1912]
A.C. 888; 107 L. T. 570; 29 T. L. R. 40.
Walbran, In re ; Milner v. Walbran, 75 L. J.
Ch. 105; [1906] 1 Ch. 64; 93 L. T. 745;
54 W. E. 167 : considered in Harper, In re;
Plowman v. Harper, 83 L. J. Ch. 157; [1914]
1 Ch. 70; 109 L. T. 925; 58 S. J. 120.
Walcott V. Lyons, 54 L. J. Ch. 847; 29 Ch.
D. 584 ; 52 L. T. 399 : distinguished in White
V. London General Omnibus Co., 58 S. J. 339.
Walker v. Brewster, 37 L. J. Ch. 33; L. R.
5 Eq. 25 ; 17 L. T. 135 ; 16 W. R. 59 : dis-
cussed and followed in Lyons v. Gulliver,
83 L. J. Ch. 281 ; [1914] 1 Ch. 631 ; 110 L. T.
284 ; 78 J. P. 98 ; 12 L. G. E. 194 ; 58 S. J. 97 ;
30 T. L. E. 75.
Walker v. Jones, 35 L. J. P.C. 30; L. E.
1 P.C. 50 : followed in Rourke v. Robinson,
80 L. J. Ch. 295; [1911] 1 Ch. 480; 103 L. T.
895.
Walker v. Mottram, 51 L. J. Ch. 108;
19 Ch. D. 355 ; 45 L. T. 687 : applied in Green
V. Morris, 83 L. J. Ch. 559; [1914] 1 Ch. 562;
110 L. T. 508; 58 S. J. 398; 30 T. L. E. 301.
Wallace v. Automatic Machines Co., 63 L. J.
Ch. 598; [1894] 2 Ch. 547; 70 L. T. 852;
1 Manson, 315 : applied in Crompton d: Co.,
In re, 83 L. J. Ch. 666; [1914] 1 Ch. 954;
110 L. T. 759; 58 S. J. 433.
Wallace v. Greenwood, 50 L. J. Ch. 289;
16 Ch. D. 362; 43 I;. T. 720 : dicta of Jessel,
M.E., in, not followed in Ilopkinson v.
Richardson, 82 L. J. Ch. 211; [1913] 1 Ch.
284; 108 L. T. 501; 57 S. J. 265.
Waller v. Barrett, 24 Beav. 413: applied in
Lawley, In re. [1911] 2 Ch. 530; 56 S. J. 13.
Waller v. Loch, 51 L. J. Q.B. 274; 7 Q.B.
D. 619; 45 L. T. 242; 30 W. E. 18; 46 J. P.
484 : distinguished in Greenlands V. Wilms-
hurst, [1913] 3 K.B. 507; 57 S. J. 740;
29 T. L. E. 685.
Walne v. Hill, [1883] W. N. 171 : followed
in Russell, In re; Public Trustee v. Campbell,
56 S. J. 651.
Walsh V. Alexander, 16 Commonwealth
L. E. 293 : not followed in Minister for Lands
V. Coote, 84 L. J. P.C. 112; [1915] A.C. 583;
112 L. T. 1098.
Walsh V. Lonsdale, 52 L. J. Ch. 2 ; 21 Ch.
D. 9; 46 L. T. 858; 31 W. E. 109 : distin-
guished in Purchase v. Lichfield Brewery Co.,
84 L. J. K.B. 742; [1915] 1 K.B. 184;
111 L. T. 1105.
Walter v. Rumbal, 1 Ld. Eaym. 53: fol-
lowed in Jarvis v. Hemmings, 81 L. J. Ch.
290; [1912] 1 Ch. 462; 106 L. T. 419;
28 T. L. E. 195.
Walter and Gould v. King, 13 T. L. E.
270 : followed in F inlay, In re; Wilson v.
Finlay, 82 L. J. Ch. 295; [1913] 1 Ch. 565;
108 L. T. 699; 57 S. J. 444; 29 T. L. E. 436.
Waltham Holy Cross Urban Council v. Lea
Conservancy Board, 103 L. T. 192; 74 J. P.
253 : is inconsistent with the decisions of the
Court of Appeal in Kirkheaton Local Board v.
Ainley (61 L. J. Q.B. 812; [1892] 2 Q.B. 274)
and Yorkshire {W . R.) Council v. Holmfirth
Urban Sanitary .iuthority (63 L. J. Q.B. 485 ;
[1894] 2 Q.B. 842) and is therefore not bind-
ing : so held by Avory, J., in Rochford Rural
Council V. Port of London Authority, 83 L. .J.
K.B. 1066; [1914] 2 K.B. 916; 78 J. P. 329.
Ward V. Byrne, 9 L. J. Ex. 14 ; 5 M. & W.
548 : followed in Nevanas £ Co. v. Walker,
83 L. J. Ch. 380; [1914] 1 Ch. 413; 110 L. T.
416 ; 58 S. J. 235 ; 30 T. L. E. 184.
Ward V. Royal Exchange Shipping Co.,
58 L. T. 174 : followed in hid, Coope d Co.,
In re, 80 L. J. Ch. 661; [1911] 2 Ch. 223;
55 S. J. 600.
Waring v. Ward, 7 Ves. 332: followed in
Mills V. United Counties Bank, 80 L. J. Ch.
334 ; [1911] 1 Ch. 669 ; 104 L. T. 632 ; 55 S. J.
408; 27 T. L. E. 366.
Warncken v. Moreland, 78 L. J. K.B. 332;
[1909] 1 K.B. 184; 100 L. T. 12; 25 T. L. R.
129 : followed in Walsh v. Lock, [1914] W.C.
& I. Rep. 95 ; 110 L. T. 452.
Warner v. Couchman, 80 L. J. K.B. 526;
[1911] 1 K.B. 351; 103 L. T. 693; 55 S. J.
107 ; 27 T. L. E. 121 : explained in Pierce v.
Provident Clothing and Supply Co., 80 L. J.
K.B. 831: [1911] 1 K.B. 997; 104 L. T. 473;
55 S. J. 363; 27 T. L. R. 299.
2108 Cases Followed, Kot Followed, Appro\"ed, Overruled, Questioned,
Warner v. Couchman, 80 L. J. K.B. 526;
[1911] 1 K.B. 351; 103 L. T. 693; 55 S. J.
107 ; 27 T. L. K. 121 : followed in Amys v.
Barton, 81 L. J. E.B. 65; [1912] 1 K.B. 40;
105 L. T. 619; 28 T. L. E. 29.
Warner v. Couchman, 81 L. J. K.B. 45;
[1912] A.C. 35; [1912] W.C. Kep. 28;
105 L. T. 676; 56 S. J. 70; 28 T. L. E. 58 :
followed in Mitchinsoii v. Day, 82 L. J. K.B.
421; [1913] 1 K.B. 603; [1913] W.C. & I. Eep.
324; 108 L. T. 193; 57 S. J. 300; 29 T. L. E.
267.
Watkins v. Guest, Keen & Nettlefold,
106 L. T. 818; [1912] W.C. Eep. 151;
5 B.W.C.C. 307 : considered in Plumb v.
Cobden Flour Mills Co., 83 L. J. K.B. 197;
[1914] A.C. 62; [1914] W.C. & I. Eep. 48;
109 L. T. 759; 58 S. J. 184; 30 T. L. E. 174.
Watkins v. Naval Colliery Co., 81 L. J.
K.B. 1056; [1912] A.C. 693; 107 L. T. 321;
56 S. J. 719; 28 T. L. E. 569 : applied in
Pursell V. Clement Talbot, Lim., Ill L. T.
827 ; 79 J. P. 1.
Watling V. Lewis, 80 L. J. Ch. 242; [1911]
1 Ch. 414 ; 104 L. T. 132 : applied in Tewkes-
bury Gas Co., In re, 80 L. J. Ch. 723; [1912]
1 Ch. 1; 105 L. T. 569; 18 Manson, 395;
56 S. J. 71; 28 T. L. E. 40.
Watson V. Ambergate &c. Railway, 15 Jur.
448 : discussed in Chaplin v. Hicks, 80 L. J.
K.B. 1292; [1911] 2 K.B. 786; 105 L. T. 285;
55 S. J. 580 ; 27 T. L. E. 458.
Way, In re, 30 L. J. Ch. 815 ; 3 De G. F.
6 J. 175 ; 5 L. T. 510 : followed in Bennet,
In re; Greenwood v. Bennet, 82 L. J. Ch. 506;
[1913] 2 Ch. 318; 109 L. T. 302.
Wearing v. Wearing, 23 Beav. 99: over-
ruled in Wareham, In re, 81 L. J. Ch. 578;
[1912] 2 Ch. 312; 107 L. T. 80; 56 S. J. 613.
Webb V. Oldfield, [1898] 1 Ir. E. 446 : con-
sidered and applied in Wedgwood, In re,
84 L. J. Ch. 107; [1915] 1 Ch. 113; 112 L. T.
66; 59 S. J. 73; 31 T. L. E. 43.
Webb V. Shropshire Railways Co., 63 L J
Ch. 80 ; [1893] 3 Ch. 307 ; 69 L. T. 533 :
doubted in Neioburgh and North Fife Railway
V. North British Railway, [1913] S. C. 1166.
Webb V. Syme, lO Commonwealth L. E.
482 : disapproved in Syine v. Victoria Com-
missioner of Taxes, 84 L. J. P.C. 39; [1914]
A.C. 1013; 111 L. T. 1043; 30 T. L. E. 689.
Webster v. Cohen, [1913] W.C. & I. Eep
268; 108 L. T. 197; 29 T. L. E. 217 : distin-
ftuished in Thompson v. North Eastern Marine
Engineering Co., [1914] W.C. & I. Eep. 13;
110 L. T. 441 : followed in Clapp v. Carter,
[1914] W.C. & I. Eep. 80; 110 L. T. 491;
58 S. J. 232 : applied in Potter v. Welsh <£•
Sons, Lim., 83 L. J. K.B. 1852; [1914] 3 K.B.
1020 ; [1914] W.C. & I. Eep. 607 ; 112 L. T. 7 ;
30 T. L. E. 644.
Wedderburn v. Atholl (Duke), [1900] A.C.
403 : distinguished as being an exclusively
Scottish decision in Irish Society v. Harold,
81 L. J. P.C. 162; [1912] A.C. 287; 106 L. T.
130; 28 T. L. E. 204.
Wedmore, In re, 76 L. J. Ch. 486; [1907J
2 Ch. 277; 97 L. T. 26; 23 T. L. E. 547 :
considered in Whitehead, In re, 82 L. J. Ch.
302; [1913] 2 Ch. 56; 108 L. T. 368; 57 S. J.
323.
Weeding, In re; Armstrong v. Wilkin,
65 L. J. Ch. 743; [1896] 2 Ch. 364 : distin-
guished in Connolly, In re; Walton v. Con-
nolly, 110 L. T. 688.
Weir V. Richardson, 3 Com. Cas. 20: fol-
lowed in The Kingsland, 80 L. J. P. 33;
[1911] P. 17; 105 L. T. 143 ; 16 Com. Cas. 18;
27 T. L. E. 75.
Wells V. Horton, 5 L. J. (o.s.) C.P. 41;
4 Bing. 40 : observations in, disapproved in
Hanau v. Ehrlich, 81 L. J. K.B. 397 ; [1912]
A.C. 39 ; 106 L. T. 1 ; 56 S. J. 186 ; 28 T. L. E.
113.
Welton v. Saffery, 66 L. J. Ch. 362; [1897J
A.C. 299; 76 L. T. 505; 45 W. E. 508;
4 Manson, 269 : observations in, followed and
applied in Hickman v. Kent (or Rornney
Marsh) Sheep Breeders' Association, 84 L. J.
Ch. 688; [1915] 1 Ch. 881; 113 L. T. 159;
59 S. J. 478.
Wemyss Coal Co. v. Symon, [1912] S. C.
1239; 49 Sc. L. E. 921 : considered and applied
in Jibb v. Chadwick £ Co., 84 L. J. K.B.
1241; [1915] 2 K.B. 94; 112 L. T. 878;
[1915] W.C. & I. Eep. 342; 31 T. L. E. 185.
Wenham, In re, 61 L. J. Ch. 565; [1892]
3 Ch. 59; 67 L. T. 648; 40 W. E. 636:
applied in Fleetwood and District Electric
Light d-c. Co., In re, 84 L. J. Ch. 374; [1916]
1 Ch. 486; 112 L. T. 1127; [1915] H. B. E.
70; 59 S. J. 383; 31 T. L. E. 221.
Wertheim v. Chicoutimi Pulp Co., 80 L. J.
P.C. 91; [1911] A.C. 301; 104 L. T. 226;
16 Com. Cas. 297 : approved in British Westing-
house Co. V. Underground Railways of London,
81 L. J. K.B. 1132; [1912] A.C. 673;
107 L. T. 325 ; 56 S. J. 734 : distinguished in
Williams v. Agius, 83 L. J. K.B. 715; [1914]
A.C. 510 ; 110 L. T. 865 ; 19 Com. Cas. 200 ;
58 S. J. 377: 30 T. L. E. 351.
West Coast Gold Fields, In re, 74 L. J.
Ch. 347; [1905] 1 Ch. 597; 92 L. T. 596;
53 W. E. 455; 12 Manson, 185; 21 T. L. E.
375 : distinguished in Peruvian Railway Con-
struction Co., In re, [1915] 2 Ch. 144 ; 59 S. J.
579; 31 T. L. E. 464.
Explained, Distixouishkd, axd Commknted On.
2109
West Ham Churchwardens v. Fourth City
Mutual Building and Investment Society,
(il L. J. M.C. UH: [189-2] 1 Q.B. 654;
G6 L. T. 350; 40 W. E. 446; 56 J. P. 438 :
considered and observations disapproved in
Rex V. Roberts; Battersea Borough Council,
Ex parte, 83 L. J. K.B. 146 ; [1914] 1 K.B.
369; 109 L. T. 466; 77 J. P. 403; 11 L. G. R.
913; 57 S. J. 644.
West Ham Union v. Holbeach Union,
74 L. J. K.B. 868; [1905] A.C. 450; 93 L. T.
557; 54 W. 11. 137; 69 J. P. 442; 3 L. G. R.
1179; 21 T. L. R. 713 : followed in Kingston-
upon-Hull Incorporation v. Hackney Union,
80 L. J. K.B. 489; [1911] 1 K.B. 748;
104 L. T. 300; 75 J. P. 249; 9 L. G. E. 416;
55 S. J. 289.
West Ham Union v. St. Matthew, Bethnal
Green, 63 L. J. M.C. 97; [1894] A.C. 230;
70 L. T. 818; 42 W. R. 573; 58 J. P. 493 :
considered and explained in Braintree Union
V. Rochford U^iion, 81 L. J. K.B. 251;
106 L. T. 569; 76 J. P. 41; 10 L. G. R. 40;
28 T. L. R. 60.
Western v. Kensington Assessment Com-
mittee, 77 L. J. K.B. 328; [1908] 1 K.B. 811;
98 L. T. 688; 72 J. P. 42; 6 L. G. R. 119 :
approved in Marylebone Assessment Com-
mittee V. Consolidated London Properties,
83 L. J. K.B. 1251; [1914] A.C. 870;
ill L. T. 553; 58 S. J. 593; 30 T. L. R. 551.
Western of Canada Oil, Lands and Works
Co., In re, 13 L. J. Ch. 184; L. R. 17 Eq. 1;
followed in Globe Trust, In re, 84 L. J. Ch.
903; 113 L. T. 80; 59 S. J. 529; 31 T. L. R.
280.
Westminster Corporation v. Gordon Hotels,
70 L. J. K.B. 482; 77 L. J. K.B. 520; [1907]
1 K.B. 910; [1908] A.C. 142; 96 L. T. 535;
98 L. T. 681; 71 J. P. 200; 72 J. P. 201;
5 L. G. R. 545; 6 L. G. R. 520; 23 T. L. R.
387 ; 24 T. L. R. 402 : applied in Wills v.
McSherry, 83 L. J. K.B. 596; [1914] 1 K.B.
616 ; 11-0 L. T. 65 ; 78 J. P. 120.
Weston, In re, 76 L. J. Ch. 54; [1906]
2 Ch. 620 ; 95 L. T. 581 : followed in Sanderson,
In re, 106 L. T. 26; 56 S. J. 291.
Wheatley, In re, 54 L. J. Ch. 201 ; 27 Ch.
D. 606; 51 L. T. 681 : applied in Hargrove,
In re, 84 L. J. Ch. 484; [1915] 1 Ch. 398;
112 L. T. 1062; 59 S. J. 364.
Wheldale v. Partridge, 5 V<-s. 388; 8 Ves.
227 : considered and distinguished in Gresham
Life Assurance Society v. Crowther, 84 L. J.
Cli. 312: [1915] 1 Ch. 214; 111 L. T. 887;
59 S. J. 103.
White V. Bowron, 43 L. .]. Ecc 7 : L. R.
4 Ad. & E. 207 : followed in Grosvenor Chapel,
South Audley Street, In re (No. 1), 29 T. L. R.
286.
White V. Islington Borough Council, 78 L. .J.
K.B. 168; [1909] 1 K.B. 133; 100 L. T. 22;
7^ J . P. 44 ; 7 L. G. R. 133 ; 25 T. L. R. 121 :
observations in, explained in Rex v. Roberts;
Battersea Borougli Council, Ex parte, 83 L. J.
K.B. 146; [1914] 1 K.B. 369; 109 L. T. 466;
77 J. P. 403; 11 L. G. R. 913; 57 S. J. 644.
White v. Steadman, 82 L. J. K.B. 846;
[1913] 3 K.B. 340; 29 T. L. R. 563 : distin-
guished in Bates v. Batey, 82 L. J. K.B. 963;
[1913] 3 K.B. 351 ; 108 L. T. 1036 ; 29 T. L. R.
616.
Whiteley, Lim. v. Burns, 77 L. J. K.B.
467; [1908] 1 K.B. 705; 98 L. T. 836;
72 J. P. 127; 24 T. L. R. 319: discussed
in London County Council v. Perry, 84 L. J.
K.B. 1518; [1915] 2 K.B. 193; 113 L. T. 85;
79 J. P. 312 ; 13 L. G. R. 746 ; 31 T. L. R. 281.
Whitham v. Kershaw, 16 Q.B. D. 613;
54 L. T. 124; 34 W. R. 340 : dictuyn of Lord
Esher in, dissented from in Defries v. Milne,
82 L. J. Ch. 1; [1913] 1 Ch. 98; 107 L. T.
593; 57 S. J. 27.
Whitmore, In re; Walters v. Harrison,
71 L. J. Ch. 673; [1902] 2 Ch. 66; 87 L. T.
210 : distinguished in Laiyig, In re, 81 L. J.
Ch. 686 ; [1912] 2 Ch. 386.
Whitting V. Whitting, 53 S. J. 100: fol-
lowed in Park's Settlement, In re; Foran v.
Bruce, 83 L. J. Ch. 528; [1914] 1 Ch. 595;
110 L. T. 813; 58 S. J. 362: remarked on
in Bullock's Will Trusts, In re, 84 L. J.
Ch. 463; [1915] 1 Ch. 493; 112 L. T. 1119;
59 S. J. 441.
Whittucit v. Waters, 4 Car. & P. 375:
applied in Woodward, In re; Kenway v. Kidd,
82 L. J. Ch. 230; [1913] 1 Ch. 392; 108 L. T.
635 ; 57 S. J. 426.
Wilford's Estate, In re; Taylor v. Taylor,
48 L. J. Ch. 243; 11 Ch. D. 267; 27 W. R.
455 : followed in Walker v. Gaskill, 83 L. J.
P. 152; [1914] P. 192; 111 L. T. 941; 59 S. J.
45 ; 30 T. L. R. 637.
Wilkinson v. Peel, 64 L. J. Q.B. 178;
[1895] 1 Q.B. 516; 72 L. T. 151: 43 W. R.
302 : distinguished in Lewis v. Davies, 82 L. J.
K.B. 631 ; 1 1913] 2 K.B. 37 ; 108 L. T. 606.
Willesford v. Watson, 42 L. J. Ch. 447;
L. R. 8 Ch. 473: 28 L. T. 428; 21 W. R. 350 :
applied in Hickman v. Kent (or Romney
MarsJi) Sheep Breeders' Association, 84 L. J.
Ch. 688: [1915] 1 Ch. 881; 113 L. T. 159;
.59 S. J. 478.
2110 Cases Followed, Not Followed, Approved, Overruled, Questioned,
Williams v. Allsup, 30 L. J. C.P. 353;
10 C. B. (N.s.) 417; 8 Jur. (n.s.) 57 ; 4 L. T.
550 : followed aud applied in Jowitt v. Union
Cold Storage Co., 82 L. J. K.B. 890; [1913]
3 K.B. 1 ; 108 L. T. 724 ; 18 Com. Cas. 185 ;
57 S. J. 560; 29 T. L. R. 477.
Williams v. Baker, 80 L. J. K.B. 545;
[1911] K.B. 56'i; 104 L. T. 178; 75 J. P. 89;
9 L. G. R. 178 : followed in Millard v. AU-
icood, 81 L. J. K.B. 514; [1912] 1 K.B. 590;
106 L. T. Ill ; 76 J. P. 139 ; 10 L. G. R. 127 ;
22 Cox C.C. 676.
Williams v. Bosanquet, 1 Brod. & B. 238:
distinguished in Purchase v. Lichfield Bretcery
Co., 84 L. J. K.B. 742; [1915] 1 K.B. 184;
111 L. T. 1105.
Williams v. Earle, L. R. 3 Q.B. 739;
19 L. T. 238 : applied in Stephenson d Co.,
In re, 84 L. J. Ch. 563; [1915] 1 Ch. 802;
113 L. T. 230; 59 S. J. 429; 31 T. L. R. 331.
Williams v. Hathaway, 6 Ch. D. 544: dis-
tinguished in Watlincj v. Leicis, 80 L. J. Ch.
242 ; [1911] 1 Ch. 414 ; 104 L. T. 132.
Williams v. Heales, 43 L. J. C.P. 80: L. R.
9 C.P. 177 ; 30 L. T. 20; 22 W. R. 317 : the
decision in, was founded upon estoppel : so held
in Stratiord-upon-.Avon Corporation v. Parker,
83 L. J. K.B. 1309; [1914] 2 K.B. 562;
110 L. T. 1004; 58 S. J. 473.
Williams v. Hunt, 74 L. J. K.B. 364;
[1905] 1 K.B. 512 ; 92 L. T. 192 : distin-
guished in Bradshaw v. McMullen, [1915]
2 Ir. R. 187.
Williams v. London and North-Western
Railway, 69 L. J. Q.B. 531; ri9001 1 Q.B.
760; 82 L. T. 287; 64 J. P. 372 : followed in
Lancashire and Yorkshire Railway v. Liver-
pool Corporation. 76 J. P. 329 ; 10 L. G. R. 575.
Williams v. North's Navigation Collieries,
75 L. J. K.B. 334; [1906] A.C. 136; 94 L. T.
447 ; 54 W. R. 485 ; 70 J. P. 217 ; 22 T. L. R.
372 : followed in Summerlee Iron Co. v.
Thomson. [1913] S. C. (J.) 34.
Williams v. Ocean Coal Co., 76 L. J. K.B.
1073; [1907] 2 K.B. 422; 97 L. T. 150;
23 T. L. R. 584 : distinguished in Neiv Monck-
ton Collieries v. Keeling, 80 L. J. K.B. 1205;
[1911] A.C. 648; 105 L. T. 337; 55 S. J. 687;
27 T. L. R. 551.
Willson V. Love, 65 L. J. Q.B. 474; [1896]
1 Q.B. 626; 74 L. T. 580; 44 W. R. 450:
distinguished in Dunlop Pneumatic Tyre Co.
V. New Garage and Motor Co., 83 L. J.
K.B. 1574; [1915] A.C. 79; 111 L. T. 862;
30 T. L. R. 625.
Wilson V. Playle, 88 L. T. 554 : followed in
Plowright v. Burrell, 82 L. J. K.B. 571;
[1913] 2 K.B. 362; 108 L. T. 1006; 77 J. P.
245 ; 11 L. G. R. 457 ; 29 T. L. R. 398.
Wilson V. Walton and Kirkdale Permanent
Building Society, 19 T. L. R. 408: dictum of
Walton, J., in, not followed in Metropolis and
Counties Permanent Investment Building
Society, In re, 80 L. J. Ch. 387 ; [1911] 1 Ch.
698; 104 L. T. 382.
Wiltshire v. Smith, 3 Atk. 89: followed in
Webb V. Crosse, 81 L. J. Ch. 259; [1912]
1 Ch. 323 ; 105 L. T. 867 ; 56 S. J. 177.
Wimbledon Olympia, Lim., In re, 79 L. J.
Ch. 481; [1910] 1 Ch. 630; 102 L. T. 425;
17 Mansou, 220 : followed in South of England
Natural Gas and Petroleum Co., In re,
80 L. J. Ch. 358; [1911] 1 Ch. 573; 104 L. T.
378; 55 S. J. 412.
Wimborne and Browne's Contract, In re,
73 L. J. Ch. 270; [1904] 1 Ch. 537; 90 L. T.
540; 52 W. R. 334 : distinguished in Collis's
Estate, In re, [1911] 1 Ir. R. 257.
Windham v. Graham, 1 Russ. 331 : followed
in Wise, In re; Smith v. Waller, 82 L. J. Ch.
25; [1913] 1 Ch. 41;107L. T. 613; 57 S. J. 28.
Winn V. Bull, 47 L. J. Ch. 139; 7 Ch. D.
29 : followed in Von Hatzfeldt-Wildenburg
(Princess) v. .ilexander, 81 L. J. Ch. 184;
[1912] 1 Ch. 284 ; 105 L. T. 434.
Wise, In re; Jackson v. Parrott, 65 L. J.
Ch. 281 ; [1896] 1 Ch. 281 : order in. explained
in Cooper, In re, 82 L. J. Ch. 222; [1913]
1 Ch. 350; 108 L. T. 293: 57 S. J. 389.
Wixon V. Thomas, 80 L. J. K.B. 104;
[1911 J 1 K.B. 43 ; 103 L. T. 730 ; 75 J. P. 58 ;
8 L. G. R. 1042 ; 27 T. L. R. 35 : approved in
Wixon V. Thomas (No. 2), 81 L. J. K.B. 686;
[1912] 1 K.B. 690; 106 L. T. 312; 76 J. P.
153; 10 L. G. R. 267; 28 T. L. R. 232.
Wolfe V. De Braam, 81 L. T. 533: con-
sidered in Kelsey v. Donne, 81 L. J. K.B. 503;
[1912] 2 K.B. 482 ; 105 L. T. 856.
Wolfenden v. Mason, 110 L. T. 31; 78 J. P.
13; 11 L. G. R. 1243; 23 Cox C.C. 722:
discussed in London County Council v. Perry,
84 L. J. K.B. 1518; [1915] 2 K.B. 193;
113 L. T. 85; 79 J. P. 312; 13 L. G. R. 746;
31 T. L. R. 281.
Wood, In re, 63 L. J. Ch. 790: [1894] 3 Ch.
381; 71 L. T. 413 : applied in Bewick, In re,
80 L. J. Ch. 47; [1911] 1 Ch. 116; 103 L. T.
634; 55 S. J. 109.
Explained, Distinguished, and Commented On,
2111
Wood, In re; Wodehouse v. Wood, 82 L. J.
Ch. 203; [1913] 1 Ch. 303; 108 L. T. 31;
57 S. J. 265 : distinguished in Fraser Settle-
ment, In re; Ind v. Fraser, 82 Ij. J. Cb. 406;
[1918] 2 Ch. 224; 108 L. T. 960; 57 S. J. 462.
Wood V. Ledbitter, 14 L. J. Ex. 161 ; 13 M.
& W. 888 : discussed in Hurst v. Picture
Theatres, Lim., 88 L. J. K.B. 1837; [1915]
1 K.B. 1; 111 L. T. 972; 58 S. J. 739;
30 T. L. K. 642.
Wood V. Odessa Waterworks Co., 58 L. J.
Ch. 628; 42 Ch. D. 636: 37 W. R. 733; 1 Meg.
265 : observations in, followed and applied in
Hickman v. Kerit (or Romney Marsh) Sheep
Breeders' Association, 84 L. J. Ch. 688;
[1915] 1 Ch. 881; 113 L. T. 159; 59 S. J. 478.
Woodall, Ex parte, 53 L. J. Ch. 966;
13 Q.B. D. 479; 50 L. T. 747 : dicta of Court
of Appeal in, followed in Bagley, In re,
80 L. J. K.B. 168; [1911] 1 K.B. 317;
103 L. T. 470; 18 Manson, 1; 55 S. J. 48.
Woodbridge v. Bellamy, 80 L. J. Ch. 265;
[1911] 1 Cb. 326: 103 L. T. 852; 55 S. J.
204 : distinguished in Dayer-SmitJi v. Hadsley,
108 L. T. 897 ; 57 S. J. 555.
Woodhouse, In re; Annesley v. Woodhouse,
[1898] 1 Ir. R. 69: followed in Llewellyn,
In re, 80 L. J. Ch. 259; [1911] 1 Ch. 451;
104 L. T. 279; 55 S. J. 254.
Woodman v. Pwllbach Colliery Co., Ill L. T.
169 (subsequently affirmed in H.L., 84 L. J.
K.B. 874; [1915] A.C. 634): followed in
Priest V. Manchester Corporation, 84 L. J.
K.B. 1734; 13 L. G. R. 665.
Woodroff, In re, 4 Manson, 46 : distin-
guished in Jones Brothers, In re; Associated
Newspapers, ex parte, 81 L. J. K.B. 1178;
[1912] 3 K.B. 234.
Worsley, In re; Lambert, ex parte, 70 L. J.
K.B. 93; [1901] 1 K.B. 309; 84 L. T. 100;
49 W. R. 182; 8 Manson, 8 : applied in Clark,
In re; Pope, ex parte, 84 L. J. K.B. 89;
[1914] 3 K.B. 1095; 112 L. T. 873; [1915]
H. B. R. 1; 59 S. J. 44.
Worthington & Co.'s Trade Mark, 49 L. J.
Cb. 646; 14 Cb. D. 8; 42 L. T. 563; 28 W. R.
747 : applied in Coleman v. Smith, 81 L. J.
Cb. 16: [1911] 2 Ch. 572; 28 T. L. R. 65.
Wragg, Lim., In re, 66 L. J. Ch. 419;
[1897] 1 Cb. 796 ; 76 L. T. 397 ; 45 W. R. 557 :
4 Manson, 179 : considered and distinguished
in Honrj Kong and China Gas Co. v. Glen,
83 L. J! Ch. 561: [1914] 1 Ch. 527; 110 L. T.
859; 58 S. J. 380: 30 T. T>. R. 339.
Wrexham, Mold and Connah's Quay Rail-
way, In re, 68 L. J. Ch. 270; [1899] 1 Ch.
440; 80 Ij. T. 130; 47 \V. K. 464; (5 Manson,
218 : followed in Harris Calculatinq Machine
Co., In re, 83 L. J. Ch. 545 ; [1914] "l Ch. 920;
110 L. T. 997; 58 S. J. 455.
Wright, In the goods of, [1893] P. 21;
68 L. T. 25 : affirmed and followed in Hewson
V. Shelley, 88 L. J. Ch. 607; [1914] 2 Ch. 18;
110 L. T. 785; 58 S. J. 397; 80 T. L. R. 402.
Wright V. Kerrigan, [1911] 2 Ir. R. 301:
discussed in .iiiiys V. Barton, 81 L. J. K.B.
65; [1912] 1 K.B. 40; 105 L. T. 619;
28 T. L. R. 29.
Wylie-Hill v. Inland Revenue Commissioners,
[1912] y. C. 1246 : approved in Brooks v.
Inland Revenue Commissioners, 83 L. J. K.B.
431; [1914] 1 K.B. 579; 110 L. T. 1;
30 T. L. R. 216.
Xantho, The, 56 L. J. P. 116 ; 12 App. Cas.
503; 55 L. T. 203; 35 W. R. 23 : followed in
Sassoon v. Western Assurance Co., 81 L. J.
P.C. 231; [1912] A.C. 561; 106 L. T. 929;
17 Com. Cas. 274.
Yeatman v. Yeatman, 89 L. J. P. 87 ;
21 L. T. 647 : not followed in Sanders v.
Sanders, 80 L. J. P. 44; [1911] P. 101;
101 L. T. 281 ; 55 S. J. 312.
Yonge V. Toynbee, 79 L. J. K.B. 208;
[1910] 1 K.B. 215 ; 102 L. T. 57 ; 26 T. L. R.
211 : considered and applied in Simmons v.
Liberal Opinion, 80 L. J. K.B. 617; [1911]
1 K.B. 966; 104 L. T. 264; 55 S. J. 315;
27 T. L. R. 278.
York, In re; Atkinson v. Powell, 56 L. J.
Cb. 552; 36 Cb. D. 233; 56 L. T. 704;
35 W. R. 609 : distinguished in Hay, In re;
Stanley Gibbons, Lim. v. Hay, 84 L. J. Cb.
821; [1915] 2 Cb. 198; 59 S. J. 680.
Yorkshire Railway Waggon Co. v. Maclure,
51 L. J. Ch. 259; 19 Ch. D. 478 : followed in
Wauthier v. Wilson, 27 T. L. R. 582.
Yorkshire (West Riding) Rivers Board v.
Gaunt, 67 J. P. 183 : considered in .itt.-Gen.
v. Lewes Corporation, 81 L. J. Cb. 40; [1911]
2 Ch. 495; 105 L. T. 697; 76 J. P. 1;
10 T.. G. R. 26; 55 S. J. 703; 27 T. L. R. 581.
Yorkshire (West Riding) Rivers Board v.
Preston, 69 J. P. 1: considered in .itt.-Gen.
V. Lewes Corporation, 81 L. J. Ch. 40; [1911]
2 Cb. 495: 105 L. T. 697; 76 J. P. 1;
10 T.. G. R. 26: 55 S. J. 708 ; 27 T. L. R. 581.
Young, In re, I Tax Cas. 57: 12 Sc. L. R.
602 : (listinguisbod in Brown v. Burt, 81 L. J.
K.B. 17; 105 L. T. 420; 27 T. L. R. 572.
2112
Cases Followed, Not Followed, Approved, Overruled, &c.
Young V. Kitchin, 47 L. J. Ex. 579; 3 Ex.
D. 127 : distinguished in Stoddart v. Union
Trust. Lim., 81 L. J. K.B. 140; [1912] 1 K.B.
181 ; 105 L. T. 806.
Young V. Royal Leamington Spa Corpora-
tion, 52 L. J. Q.B. 713; 8 App. Cas. 517;
49 L. T. 1 : followed in Hoare v. Kingsbury.
Urban Council, 81 L. J. Ch. 666; [1912] 2 Ch.
452 ; 107 L. T. 492 ; 76 J. P. 401 ; 10 L. G. R.
829; 56 S. J. 704.
Young V. Waterpark, 8 L. J. Ch. 214 : dis-
tinguished in Power's Estate, In re, [1913]
1 Ir. R. 530.
Young V. White, 76 J. P. 14; 28 T. L. R.
87 : disapproved in Hampton v. Glamorgan
County Council, 84 L. J. K.B. 1506; 113 L. T.
112: 13 L. G. E. 819.
Zierenberg v. Labouchere, 63 L. J. Q.B. 89;
[1893] 2 Q.B. 183; 69 L. T. 172; 41 W. R.
675; 55 J. P. 711: applied in Wootton v.
Sierier (No. 1). 82 L. J. K.B. 1242; [1913]
3 K.B. 499; 109 L. T. 28; 57 S. J. 609;
29 T. L. R. 596.
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KeAp, ToUv (t^A
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/9/0
NOTER-UP
>.>'>■
V
APPL., applied or applicable.
APPR., approved.
COMM., commented on.
CONS., considered.
CORR., corrected.
DicT., dictum.
fox* X9X5
ABBREVIATIONS.
DiSAPPR., disapproved.
DISC , discussed.
DISS., dissented from.
DiST., distinguished.
DOUBT., doubted.
EXPL., explaiiied.
FOLL., followed.
INAPP., inapplicable.
OBS., observed upon, observations.
ov., overruled .
PRiNC, principle.
REF., referred to.
Allhusen v. Whittell, 36
L. J. Ch. 929; L. R. 4
Eq. 295; 16 L. T. 695.
Arden v. Arden, 54 L. J.
Ch. 655 ; 29 Ch. D. 702 ;
52 L. T. 610; 33 W. R.
593.
Aberdeen Railway Co. v.
Blaikie, 1 Macq. 461.
Abergavenny Improve-
ment Commissioners v.
Straker, 58 L. J. Ch.
717; 42 Ch. D. 83; 60
L. T. 756 ; 38 W. R. 158.
Abrahams' Estate, In re,
77 L. J. Ch. 578;
(1908) 2 Ch. 69; 99 L.
T. 240.
Ailsebury (Marquis) and
Iveagh (Lord), In re.
62 L. ,1. Ch. 713; (1893)
2 Ch. .345 ; 69 L. T. 101 ;
41 W. R. 644.
Akerman, In re, 61 L. J.
Ch. 34; (1891) 3 Ch.
212; 65 L. T. 194; 40
W. R. 12.
Allen V. Gold Reefs of
West Africa, 69 L. J.
Ch. 266; (1900) 1 Ch.
6.->G; S2 L. T. 210; 48
W. R. 452; 7 Manson,
417.
POLL, in Wills, In re, 84
L. J. Ch. 580; (1915)
1 Ch. 769; 113 L. T.
138; 59 S. J. 477.
FOLL. ia Gresham Life
Assurance Society v.
Crowther, 84 L. J. Ch.
312; (1915) 1 Ch. 214;
111 L. T. 887; 59 S. J.
103.
CONS, aud APPL. in Trans-
oaal Lands Co. V. New
Belgium (Transvaal)
Land d-c. Co., 84 L. J.
Ch. 94; (1914) 2 Ch.
488; 112 L. T. 965; 21
Manson, 364; 59 S. J.
27; 31 T. L. R. 1.
FOLL. in Hailsham Cattle
Market Co. V. Tolman,
84 L. J. Ch. 299; (1915)
1 Ch. 360 ; 79 J. P. 185 ;
13 L. G. R. 248; 59 S.J.
303; 31 T. L. R. 86.
APPL. in Smelting Corpor
ation. In re; Seaver v
Smelting Corporation
84 L. J. Ch. 571; (1915)
1 Ch. 472 ; 113 L. T. 44
(1915) H. B. R. 126.
APPL. in Trafford's Settled
Estates. In re, 84 L. J.
Ch. 351: (1915) 1 Ch. 9;
112 L. T. 107.
DISC. In Sinelting Corpor-
ation, In re, 84 L. J.
Ch. 571; (1915) 1 Ch.
472; n.i L. T. 44;
(1915) H. B. R. 126; in
Peruvian Railwai/ Con-
struction Co., (1915) 2
Ch. 144; .59 S. .T. 579;
31 T. L. R. 464; and in
Dacre, In re, (1915) 2
Ch. 480.
FOLL. in British Murac
Syndicate v. Alperton,
84 L. .7. Ch. 665; (1915)
2 Ch. 186; 59 S. .1. 494;
31 T. L. R. 391.
Allen V. Francis, 83 L. J.
K.B. 1814; (1914) 3
K.B. 1065; (1914) W.C.
& I. Rep. 599; 112 L.
T. 62; 58 S. J. 753; 30
T. L. R. 695.
Allen V. Allen, 70 L. T.
783.
Andrews v. Partington, 3
Bro. C.C. 401.
.Anglesey (Marquis), In
re, 72 L. J. Ch. 782;
(1903) 2 Ch. 727; 52 W.
R. 214.
Anglo-Australian Steam
Navigation Co. v.
Richards, 4 B.W.C.C.
247.
Anonymous Case, Vander
Straaten's Rep. 195.
Arnold v. Arnold, 2 Myl.
& K. 365.
Ashton Gas. Co. r. Att.-
Gen., 75 L. J. Ch. 1;
(1906) A.C. 10; 93 L. T.
676; 70 .1. P. 49; 13
Manson, 35; 22 T. L. R.
CONS, in Burnham \.
Hardy, 84 L. J. K.B.
714; (1915) W.C. &. I.
Rep. 146; 112 L. T. 837.
APPR. in Brown v. Brown,
84 L. J. P. 153; (1915)
P. 83; 113 L. T. 190; 59
S. J. 442; 31 T. L. R.
280.
HELD INAPPL. in Faux, In
re, 84 L. J. Ch. 873 ; 113
L. T. 71; 59 S. J. 457;
31 T. L. R. 289.
APPL. in Singer v. Fry, 84
L. J. K.B. 2025; (1915)
H. B. R. 115.
CONS. in Silcock v.
Golightly, 84 L. J. K.B.
499; (1915) 1 K.B. 748;
(1915) W.C. & I. Rep.
164; 112 L. T. 800.
OV. in Pate V. Pate, 84
L. J. P.C. 234; (1915)
A.C. 1100; 31 T. L. R.
590.
FOLL. in Richardson, In
re, 84 L. J. Ch. 438;
(1915) 1 Ch. 353; 112 L.
T. 554.
PRIN. of APPL. in Johnston
V. Chestergate Hat
Manufacturing Co.. 84
L. J. Ch. 914; (1915) 2
Ch. .3.38; 59 S. J. 692.
Atkinson, In re; Wilson Die. of North. J., in, not
Atkinson, 61 L. J. pOLL.in CJorfc«on, In
Ch. 504; (1892) 3 Ch.
52.
Att.-Gen. v. Clack,
Beav. 467.
re; Public Trustee v.
Clarkson, 84 L. J. Ch.
881 : (1915) 2 Ch. 216 ; 59
S. J. 630.
1 DIST. in Cotter, In re, 84
L. J. Ch. 337; (1915) 1
Ch. 307: 112 L. T. 340;
59 S. J. 177.
MEWS' NOTEE-UP FOR 1915.
Att.-Gen. v. Dodd, 63 L.
J. Q.B. 319; (1894) 2
Q.B. 150; 70 L. T. 660;
42 W. R. 524; 58 J. P.
526.
Auriferous Properties, In
re (No. 2), 67 L. J. Ch.
574; (1898) 2 Ch. 428;
79 L. T. 71; 47 W. R.
75; 5 Manson, 260.
CONS, in GoswelVs Trusts,
In re, 84 L. J. Ch. 719;
(1915) 2 Ch. 106; 59 S.
J. 579.
DIST. in Peruvian Rail-
icay Construction Co.,
In re, (1915) 2 Ch. 144;
59 S. J. 579; 31 T. L.
R. 464.
Baker & Co.'s Trade foll. in Cadbury Bro-
Marks, In re, 77 L. J
Ch. 473 ; (1908) 2 Ch. 86 :
98 L. T. 721 ; 24 T. L. R!
467.
thers' Application, In
re (No. 2), 84 L. J. Ch.
827; (1915) -2 Ch. 307;
32 R. P. C. 456; 59 S.
J. 598; 31 T. L. R. 523.
Barron v. Potter, 84 L. J. appl. and poll, in Bod-
K.B. 751, 2008; (1915) dington. In re; Sala-
3 K.B. 593; 112 L. T. man, ex parte, 84 L.
688; 59 S. J. 650. J. K.B. 2119.
Averill, In re ; Salsbury
V. Buckle, 67 L. J. Ch.
233; (1898) 1 Ch. 523;
78 L. T. 320; 46 W. R.
460.
Barnabas v. Bersham
Colliery Co., 103 L. T.
513; 55 S. J. 63.
Brick wood v. Reynolds,
67 L. J. Q.B. 26; (1898)
1 Q.B. 95 ; 77 L. T. 456 ;
46 W. R. 130.
Brown v. Crossley, 80 L.
J. K.B. 478; (1911) 1
K.B. 603; 104 L. T. 429;
75 J. P. 177: 9 L. G. R.
194; 27 T. L. R. 194.
Barnes v. Nunnery Col-
liery Co., 81 L. J. K.B
213; (1912) A.C. 44
(1912) W.C. Rep. 90
105 L. T. 961; 56 S. J.
159; 28 T. L. R. 135.
Bellerby v. Hevworth, 79
L. J. Ch. 402; (1910)
A.C. 377; 102 L. T. 545 ;
74 J. P. 257; 54 S. J.
441; 26 T. L. R. 403.
Bernard v. Aaron, 31 L.
J. C.P. 334; 9 Jur. N.S.
470.
Birmingham and Mid-
land Motor Omnibus
Co. V. London and
North-Western Rail-
way, 83 L. J. K.B. 474:
(1913) 3 K.B. 850; 109
L. T. 64 ; 57 S. J. 752.
Boulter v. Kent Justices,
66 L. J. Q.B. 787: (1897)
A.C. 556; 77 L. T. 288;
46 W. R. 114; 61 J. P.
532.
Ball V. Hunt, 81 L. J.
K.B. 782; (1912) A.C.
496: 106 L. T. 911: 56 S.
J. 550; 28 T. L. R. 428;
(1912) W.C. Rep. 261.
BisRood V. Henderson's
Tran.svaal Estates, 77 L.
J. Ch. 486; (1908) 1 Ch.
743; 98 L. T. 809; 15
Manson, 163; 24 T. L. R.
510.
DIST. in Stevens, In re, 84
L. J. Ch. 432; (1915) 1
Ch. 429; 112 L. T. 982;
59 S. J. 441.
EXPL. in Lewis v. Port of
London Authority,
(1914) W.C. & I. Rep.
299; 111 L. T. 776; 58
S. J. 686.
COMM on in Usher's Wilt-
shire Brewery v. Bruce,
84 L. J. K.B. 417;
(1915) A.C. 433; 112 L.
T. 651 ; 6 Tax Cas. 399 ;
59 S. J. 144; 31 T. L. R.
104.
FOLL. in White v. Jack-
son, 84 L. J. K.B. 1900;
79 J. P. 447; 31 T. L. R.
505.
APPL. in Herbert V. Fox
& Co., 84 L. J. K.B.
670; (1915) 2 K.B. 81;
(1915) W.C. & I. Rep.
154; 112 L. T. 833; 59
S. J. 249.
APPL. in Rex v. Registrar
of Joint Stock Com-
panies; Bowen, Ex
parte, 84 L. J. K.B.
229: (1914) 3 K.B.
1161; 112 L. T. 38; 30
T. L. R. 707.
POLL, in Associated Port-
land Cement Manufac-
turers V. Ashton, 84
L. J. K.B. 519; (1915)
2 K.B. 1; 112 L. T. 486;
20 Com. Cas. 165.
FOLL. in Adam Steamship
Co. V. London Assur-
ance Corporation, 83
L. J. K.B. 1861: (1914)
3 K.B. 1256; 111 L. T.
1031: 12 Asp. M.C. 559;
20 Com. Cas. 37; 59
S. J. 42.
DICT. of Lord Halsbury
in, FOLL. in Attwood v.
Chapman, 83 L. J. K.B.
1666: (1914) 3 K.B. 275;
111 L. T. 726; 79 J. P.
65; 30 T. L. R. 596.
APPL. in Jackson V. Huns-
let Engine Co., 84 L. J.
K.B. 1361 ; (191.5) W.C.
& I. Rep. 389; 113 L. T.
630.
OBS. in, FOLL. and appl.
in Hickman v. Kent or
Rotnney Marsh Sheep
Breeders' Association,
84 L. J. Ch. 688; (1915)
1 Ch. 881; 113 L. T.
159; 69 S. J. 478.
Bainbridge v. Postmaster-
General, 75 L. J. K.B.
366; (1906). 1 K.B. 178;
94 L. T. 120; 54 W. R.
221; 22 T. L. R. 70.
Bainbridge v. Smith, 41
Ch. D. 462; 60 L. T.
879; 37 W. R. 594.
Baker v. Yorkshire Fire
and Life Assurance Co.,
61 L. J. Q.B. 838; (1892)
1 Q.B. 144; 66 L. T. 161.
Barwell v. Newport Aber-
carn Black Vein Steam
Coal Co.. 84 L. J. K.B.
1105; (1915) 2 K.B. 256;
112 L. T. 806; 59 S. J.
233; 31 T. L. R. 136.
Batchelour v. Gee, 83 L.
J. K.B. 1714; (1914) 3
K.B. 242; 111 L. T. 256;
78 J. P. 362; 12 L. G. R.
931; 24 Cox C.C. 268; 30
T. L. R. 506.
Beard v. London General
Omnibus Co., 69 L. J.
Q.B. 895; (1900) 2 Q.B.
530; 83 L. T. 362; 48
W. R. 658.
Beavan, In re ; Davies,
Banks & Co. r. Beavan,
81 L. J. Ch. 113; (1912)
1 Ch. 196; 105 L. T. 784.
Batt V. Metropolitan
Water Board, 80 L. J.
K.B. 1354; (1911) 2 K.B.
965; 105 L. T. 496; 9 L.
G. R. 1123 : 75 J. P. 545 ;
55 S. J. 714; 27 T. L. R.
579.
Bennett's Estate, In re,
(1898) 1 Ir. R. 185.
Barker r. Herbert, 80 L. J.
K.B. 1329; (1911) 2 K.B.
633; 105 L. T. 349; 75
J. P. 481; 9 L. G. R.
1083; 27 T. L. R. 488.
Bective (Earl) v. Hodgson,
33 L. J. Ch. 601; 10 H.L.
C. 656.
Bewley r. Atkinson, 49
L. J. Ch. 153; 13 Ch. D.
283.
Birkenhead Corporation v.
London and North-
Western Railway, 55 L.
J. Q.B. 48: 15 Q.B. D.
572; 50 J. P. 84.
APPL. in Roper t. Works
and Public Buildings
Commissioners, 84 L. J.
K.B. 129; (1915) 1 K.B.
45; 111 L. T. 630.
DIST. in British Murac
Syndicate V. Alperton
Rubber Co., 84 L. J.
Ch. 665; (1915) 2 Ch.
186; 59 S. J. 494; 31
T. L. R. 391.
APPL. in Hickman v.
Kent or Roniney Marsh
Sheep Breeders' Asso-
ciation, 84 L. J. Ch.
688; (1915) 1 Ch. 881;
113 L. T. 159; 59 S. J.
478.
FOLL. in Fairbanks v.
Florence Coal and Iron
Co., 84 L. J. K.B. 1115:
(1915) 2 K.B. 714; 112
L. T. 1013.
NOT FOLL. in Clifford v.
Battley, 84 L. J. K.B.
615; (1915) 1 K.B. 531;
112 L. T. 765; 79 J. P.
180; 13 L. G. R. 505;
31 T. L. R. 117.
CONS. and dist. in
Ricketts v. Tilling, 84
L. J. K.B. 342; (1915)
1 K.B. 644; 112 L. T.
137; 31 T. L. R. 17.
FOLL. in Lloyd v. Coote
& Ball, 84 L. J. K.B.
567; (1915) 1 K.B. 242;
112 L. T. 344.
FOLL. in Mist V. Metro-
politan Water Board,
84 L. J. K.B. 2041; 13
L. G. R. 874; 113 L. T.
500.
NOT FOLL. in Cross's Trust,
(1915) 1 Ir. R. 304.
DISC, and DIST. in Hor-
ridge v. Makinson, 84
L. J. K.B. 1294; 113
L. T. 498; 13 L. G. R.
868; 31 T. L. R. 389.
DIST. in Stevens, In re,
84 L. J. Ch. 432; (1915)
1 Ch. 429; 112 L. T.
982; 59 S. J. 441.
CONS, in Smith \. Col-
bourne, 84 L. J. Ch.
112; (1914) 2 Ch. 533:
111 L. T. 927; 58 S. J.
783.
DIST. in Thurrock Grays
and Tilbury Joint
Seicerage Board v.
Goldsmith, 79 J. P. 17.
MEWS' NOTER-UP FOR 1915.
Blake v. Lanyon, 6 Term
Rep. 221.
Blakeway v. Patteshall,
(1894) 1 Q.B. 247.
Bodega Co. r. Read, 84
JU J. Ch. 36; (1914) 2
Ch. 757; 111 L. T. 884;
59 S. J. 58; 31 T. L. R.
17.
Boden, In re, 76 L. J. Ch.
100; (1907) 1 Ch. 132;
95 L. T. 741.
Boussmaker, Ex parte, 13
Ves. 71.
Bowling & Welby's Con-
tract, In re, 64 L. J.
Ch. 427; (1895) 1 Ch.
663; 72 L. T. 411; 43
W. R. 417; 2 Manson,
257.
Bradford Banking Co. r.
Briggs, 56 L. J. Ch. 364;
12 App. Cas. 29 ; 56 L. T.
62; 35 W. R. 521.
Bradley i-. James, Ir. R.
10 C. L. 441.
Bridger, In re ; Brompton
Hospital !'. Lewis, 63
L. J. Ch. 186; (1894) 1
Ch. 297; 70 L. T. 204;
42 W. R. 179.
Briggs V. Hartley, 19 L. J.
Ch. 410.
British Asbestos Co. r.
Bovd, 73 L. J. Ch. 31;
(1903) 2 Ch. 439; 88
L. T. 763; 51 W. R. 667.
Briti.sh Waggon Co. r.
Lea, 49 L. J. Q.B. 321;
5 Q.B. D. 149: 42 L. T.
437: 28 W. R. ;i49: 44
J. P. 440.
Brook ti. Badley, 37 L. ,1.
Ch. 884; L. R. 3 Ch.
672.
Brown & Gregory, In re,
73 L. J. Ch. 4.30; (1904)
1 Ch. 627; 52 \V. R. 412;
n Manson, 218.
POLL. in Wilkins and
Brothers, Lim. V.
Weaver, 84 L. J. Ch.
929; (1915) 2 Ch. 322.
FOLL. in Haywood v.
Farubee, 59 S. J. 234.
FOLL. in Bodega Co. v.
Martin, 85 L. J. Ch. 17;
(1915) 2 Ch. 385; 31
T. L. R. 595.
Browne v. La Trinidad, 57
DISC, in Rose, In re, 85 L. J. Ch.292; 37 Ch. D. 1.
L. J. Ch. 22;-113 L. T.
142. -
Brown r. Lillev, 7 T. L.
R. 427.
Browne r. Furtado, 72
L. J. K.B. 296; (1903)
1 K.B. 723; 88 L. T. .509:
67 J. P. 161.
Biirman v. Zodiac Steam
Fishing Co., 83 L. J.
K.B. 1683; (1914) 3 K.B.
1039; 112 L. T. 58;
(1914) W.C. & I. Rep.
520; 30 T. L. R. 651.
Biitterknowle Colliery Co. CONS, in Beard v. Moira
FOLL. in Rombach Baden
Clock Co., In re, 84
L. J. K.B. 1558; 31
T. L. R. 492.
DIST. by Astbury, J., in
Llewellyn v. Kasintoe
Rubber Estates, 84 L. J.
70; (1914) 2 Ch. 670;
112 L. T. 676; 21 Man-
son, 349; 58 S. J. 808:
30 T. L. R. 683.
CBS. in, FOLL. and appl.
in Hickman v. Kent or
Romney Marsh Sheep
Breeders' Association,
84 L. J. Ch. 688; (1915)
1 Ch. 881; 113 L. T.
159; 59 S. J. 478.
CONS, in Mackay, In re,
(1915) 2 Ir. R. 347.
APPL. in Groos, In re, 84
L. J. Ch. 422; (1915)
1 Ch. 572; 112 L. T.
984: 59 S. .1. 477.
OV. in Bowman. In re. 85
L. J. Ch. 1; a915) 2
Ch. 447; 59 S. J. 703;
31 T. L. R. 618.
appl. in Channell Col-
lieries Trust V. St.
Margarets, Dover, and
Martin Mill Light Rail-
way, 84 L. J. Ch. 28;
(1914) 2 Ch. 506; 111
L. T. 1051; 21 Manson,
328; 30 T. L. R. 647.
FOLL. in Sorrentino v.
Buerger, 84 L. J. K.B.
725; (1915) 1 K.B. .307;
112 L. T. 294; 20 Com.
Cas. 132.
FOLL. in Dawson, In re;
Pattisson Y. Bathurst,
84 L. J. Ch. 476: (1915)
1 Ch. 626; 113 L. T.
19; 59 S. J. 363; 31
T. L. R. 277.
DIST. in Peruvian Railway
Construction Co., In re,
(1915) 2 Ch. 144: 59
.S. ,T. 579; 31 T. L. R.
464.
CONS, in Stephenson v.
Rossall Steam Fishing
Co., 84 L. J. K.B. 677;
(1915) W.C. & I. Rep.
121; 112 L. T. 890.
Burnard v. Aaron, 31 L. J.
C.P. 334; 9 Jur. (N.S.)
470.
Burrows v. Rhodes, 68 L.
J. Q.B. 545; (1899) 1
Q.B. 816; 80 L. T. 591;
48 W. R. 13; 63 J. P.
532.
Buccleuch (Duke) v. Metro-
politan Board of Works,
41 L. J. Ex. 137; L. R. 5
H.L. 418; 27 L. T. 1.
Clapp r. Carter, (1914)
W.C. & I. Rep. 80: 110
L. T. 491; 58 S. J. 232.
Clutterbuck v. Clutter-
buck, 108 L. T. 573; 29
T. L. R. 480.
Cohen, In re, 80 L. J. Ch.
208; (1911) 1 Ch. 37; 103
L. T. 626; 55 S. J. 11.
Cook r. Montreal
(Owners), (1913) W.C. &
I. Rep. 206; 108 L. T.
164: 57 S. J. 282; 29
T. L. R. 233.
Cowes District Council v.
Southampton Steam
Packet Co., 74 L. J. K.B.
665; (1905) 2 K.B. 287;
92 L. T. 658; 53 W. R.
602; 69 J. P. 298; 3 L.
G. R. 807; 21 T. L. R.
506.
Craven, In re, 83 L. J. Ch.
403; (1914) 1 Ch. 358;
109 L. T. 846; 58 S J.
138.
Caistor Rural District
Council r. Taylor, 71 J.
P. 310.
r'. Bishop .\uckland In-
dustrial Co-operative
Co., 75 L. J. Ch. 541;
(1906) A.C. 305; 94 L. T.
795: 70 .J. P. 361; 22
T. L. R. 516.
Colliery Co.. 84 L. J. California Copper Syndi-
Ch. 155; (1915) 1 Ch. cate v. Harris, 6 Fraser,
257- 112 L. T. 227; 59 894; 5 Tax Cas. 159.
S. J. W.i.
DISC, and held not to be
good law in Tarry v.
Witt. 84 L. J. K.B.
950; 112 L. T. 1034; 31
T. L. R. 207.
DISC. in Westminster
School V. Reith, 84
L. J. K.B. 168; (1915)
A.C. 259; 112 L. T. 91;
6 Tax Cas. 486 ; 59 S. J.
57; 31 T. L. R. 31.
DIST. in Hickman v. Kent
or Romney Marsh
Sheep Breeders' Asso-
ciation, 84 L. J. Ch.
688; (1915) 1 Ch. 881;
113 L. T. 159; 59 S. J.
478.
DIST. in .issociated Port-
land Cement Manufac-
turers V. Ashton, 84
L. J. K.B. 519; (1915)
2 K.B. 1; 112 L. T. 486;
20 Com. Cas. 165.
CONS, in Leslie, Lim. v.
Reliable Advertising
and Addressing Agency,
84 L. J. K.B. 719;
(1915) 1 K.B. 652; 112
L. T. 947; 31 T. L. R.
182.
CONS, and dist. in Recher
V. North British and
Mercantile Insurance
Co., 84 L. J. K.B. 1813;
(1915) 3 K.B. 277;
113 L. T. 827.
APPL. in Potter v. Welsh
& Sons, 83 L. J. K.B.
1852; (1914) 3 K.B.
1020; (1914) W.C. & I.
Rep. 607: 112 L. T. 7;
.30 T. L. R. 644.
DISAPPR. in Tangye v.
Tangye, 83 L. J. P.
164; (1914) P. 201; 111
L. T. 944; 58 S. J. 723;
30 T. L. R. 649.
DIST. in Holland, In re,
84 L. J. Ch. 389; (1914)
2 Ch. 595; 112 L. T. 27.
DIST. in Webber v. H'ans-
brough Paper Co., 84
L. J. K.B. 127: (1915)
A.C. 51; (1915) W.C. &
I. Rep. 313: 111 L. T.
658: 58 S. J. 685: 30
T. L. R. 615.
CONS, in Oeneral Estates
Co. V. Beaver, 84 L. J.
K.B. 21 : (1914) 3 K.B.
918; 111 L. T. 957; 79
J. P. 41; 12 L. G. R.
1146: 30 T. L. R. 634.
POLL, in Forster-Brown,
In re, 84 L. J. Ch. 361;
(1914) 2 Ch. 584; 112
L. T. 681.
APPR. and POLL, in Rex. v.
Beacontrce Justices, 84
L. J. K.B. 2230: (1915)
3 K.B. 388; 31 T. L. R.
509.
APPK. and FOLL. in Com-
missioner of Taxes V.
.Melbourne Trust. 84 L.
.1. P.C. 21: (1914) A.C.
1001 ; 111 L. T. 1040: 30
T. L. R. 685.
MEWS' XOTEE-UP FOE 1915.
Cardiff Corporation v.
Hall, 80 L. J. K.B. 644;
(1911) 1 K.B. 1009; 104
L. T. 467; 27 T. L. R.
339.
Carr v. Ingleby, 1 De G.
& S. 362n.
Cavendish r. .Strutt, 73 L.
J. Ch. 247; (1904) 1 Ch.
524: 90 L. T. 500; 52 W.
R. 333; 20 T. L. R. 99.
Caygill r. Thwaite, 49 J.
P. 614; 33 W. R. 581.
Carlin v. Stephen, (1911)
S. C. 901; 5 B.W.C.C.
Catlin, In re, 18 Beav.
508.
Cassella's Trade Mark, In
re, 79 L. J. Ch. 529;
(1910) 2 Ch. 240; 102 L.
T. 792; 27 R. P. C. 453;
54 S. J. 505; 26 T. L. R.
472.
CONS. in Silcock
Golightly, 84 L
K.B. 499; (1915) 1 K.B
748; (1915) W.C. & I.
Rep. 164; 112 L. T. 800.
POLL, in Richardson, In
re; Mahony v. Treacv,
(1915) 1 Ir. R. 39; and
in Dempster, In re, 84
L. J. Ch. 597; (1915) 1
Ch. 795; 112 L. T. 1124.
JUDG. in, CORK in Giles
V. Randall, 84 L. J.
K.B. 786; (1915) 1 K.B.
290 ; 112 L. T. 271 ; 59 S.
J. 131.
CONS, and poll, in Leavett
V. Clark, 84 L. J. K.B.
2157; (1915) 3 K.B. 9;
113 L. T. 424.
CONS. in Silcock v.
Golightly, 84 L. J. K.B.
499; (1915) 1 K.B. 748;
(1915) W.C. & I. Rep.
164; 112 L. T. 800.
DIST. in Morgan ifc Co.,
In re, 84 L. J. Ch. 249;
(1915) 1 Ch. 182; 112 L.
T. 239; 59 S. J. 289.
CONS, and appl. in Sharpe's
Trade Mark, In re, 84
L. J. Ch. 290; 112 L.
T. 435; 32 R. P. C. 15;
31 T. L. R. 105.
V. Chilton r. Blair & Co.,
J. (1914) W.C. & I. Rep.
346; 58 S. J. 669; 30 T.
L. R. 623.
Chilcote r. Youldon, 29 L.
J. M.C. 197; 3 E. & E. 7.
Churchill r. Denny, 44 L.
J. Ch. 578; L. R. 20 Eq.
534.
Citizens Insurance Co. r.
Parsons, 51 L. J. P.C.
11 ; 7 App. Cas. 96 ; 45 L.
T. 721.
Clark V. London General
Omnibus Co., 75 L. J.
K.B. 907; (1906) 2 K.B.
648; 95 L. T. 435.
Cleveland (Duke), In re;
Barnard v. Wolmer, 62
L. J. Ch. 955; (1893) 3
Ch. 244.
Cleaver v. Mutual Reserve
Fund Life Association,
61 L. J. Q.B. 128; (1892)
1 Q.B. 147; 66 L. T. 220;
40 W. R. 230; 56 J. P.
180.
Cobbold, In re, (1903) 2
Ch. 299.
Chaplin r. Chaplin, 3 P. appl. in Pinkerton V. „
Wms. 229. Pratt, (1915) 1 Ir. R. Cockroft r. Black, 2 P.
406. Wms. 298.
Challenger v. Sheppard, 8 dist. in Jones, In re, 84
Terra Rep. 597. L. J. Ch. 222; (1915) 1
Ch. 246; 112 L. T. 409;
59 S. J. 218.
Challis r. London and disc and dist. in Clayton
South-Western_ Railway, v. Hardtcick Colliery
Cole V. Accident Insur-
ance Co., 5 T. L. R. 736.
74 L. J. K.B. 569;
(1905) 2 K.B. 154: 93 L.
T. 330; 53 W. R. 613; 21
T. L. R. 486.
Charing Cross, West End,
and City Electricity
Supply Co. V. London
Hydraulic Power Co., 83
L. J. K.B. 116. 1352;
(1913) 3 K.B. 442; (1914)
3 K.B. 772; 109 L. T.
635; 111 L. T. 198; 77 J.
P. 378; 78 J. P. 305; 11
L. G. R. 1013; 12 L. G.
R. 807; 29 T. L. R. 649;
30 T. L. R. 441.
Chant, In re, 69 L. J. Ch.
601 ; (1900) 2 Ch. 345 ; 83
L. T. 341 ; 48 W. R. 646.
Chaytor, In re ; Chaytor
V. Horn. 74 L. J. Ch.
106: (1905) 1 Ch. 233; 92
L. T. 290; 53 W. R. 251.
Cherry v. Boultbee, 9 L.
.1. Ch. 118; 4 Mvl. & Cr.
442.
Co.. (1914) W.C. & I.
Rep. 343; 111 L. T. 788.
DIST. in Goodbody v. Cohen. In re ; Brookes v.
Poplar Borough Coun
cil, 84 L. J. K.B. 1230;
79 J. P. 218; 13 L. G.
R. 166.
POLL, in Jones, In re, 84
L. J. Ch. 222; (1915) 1
Ch. 246: 112 L. T. 409;
.59 .S. .T. 218.
DIST. in Inman, In re, 84
L. J. Ch. .309: (1915) 1
Ch. 187; 112 L. T. 240;
.59 S. J. 161.
PRIN. of held INAPPL. in
Smelting Corporation,
In re; Seaver v. Smelt-
ing Corporation, 84 L.
.1. Ch. 571; (1915) 1 Ch.
472: 113 L. T. 44; (1915)
H. B. R. 126: CONS, in
Peruvian Railway Con-
struction Co., In re,
(1915) 2 Ch. 144; 59 S.
J. .579; 31 T. L. R. 464;
and in Dacre, In re,
(1915) 2 Ch. 480.
Cohen, 80 L. J. Ch. 208,
(1911) 1 Ch. 37; 103 L.
T. 626; 55 S. J. 11.
Colburn r. Patmore, 3 L.
J. Ex. 317; 1 Cr. M. &
R. 73.
Cole V. Kernot, 41 L. J.
Q.B. 221; L. R. 7 Q.B.
534r).
Collyer r. Isaacs. 51 L. J.
Ch. 14; 19 Ch. D. 342.
Company (0022 and 0023 of
1915). In re. 84 L. .7. Ch.
.382; (1915) 1 Ch. 520; 112
L. T. 1100; (1915) H. B.
R. 65; 59 S. J. 302; 31
T. L. R. 241.
Condon v. Mitchelstown
Rural Council, (1914) 1
Ir. R. 113.
DIST. in Herbert V. Fox
& Co., 84 L. J. K.B.
670; (1915) 2 K.B. 81;
(1915) W.C. & I. Rep.
154; 112 L. T. 833; 59
S. J. 249.
DISC, in Blackett v. Rid-
out, 84 L. J. K.B. 1535;
(1915) 2 K.B. 415.
REF. to in Biscoe, In re,
111 L. T. 902.
POLL, in John Deere Plow
Co. V. Wharton, 84 L.
J. P.C. 64; (1915) A.C.
330: 112 L. T. 183; 31
T. L. R. 35.
DIST. in Berry V. Humm,
84 L. J. K.B. 918;
(1915) 1 K.B. 627; 31 T.
L. R. 198.
POLL, in Vpton-Cottrell-
Dorrner, In re, 84 L. J.
Ch. 861; 112 L. T. 974;
31 T. L. R. 260.
.\PPL. in Burgess' Policy,
In re, 113 L. T. 443; 59
S. J. 546.
ATTEN. called to errata in
report of, in Davey, In
re, (1915) 1 Ch. 837.
DISC, in Sutherland (Dow-
ager Duchess), In re;
Michell V. Bubna
(Countess), 84 L. J. Ch.
126; (1914) 2 Ch. 720;
112 L. T. 72.
CONS, in United London <t
Scottish Insurance Co.,
In re; Brown's Claim,
84 L. J. Ch. 620; (1915)
2 Ch. 167; 113 L. T.
397; 59 S. J. 529; 31 T.
L. R. 419.
DIST. in Holland, In re.
84 L. J. Ch. 389; (1914)
2 Ch. 595; 112 L. T. 27.
CONS, in Leslie, Lim. v.
Reliable Advertising
and Addressing Agency,
84 L. J. K.B. 719;
(1915) 1 K.B. 652; 112
L. T. 947; 31 T. L. R.
182.
EXPL. and DIST. in Lind,
In re, 84 L. J. Ch. 884;
(1915) 2 Ch. 345; 59 S.
J. 651.
EXPL. and DIST. in Lind.
In re. 84 L. J. Ch. 884;
(1915) 2 Ch. 345; 59 S.
J. 651.
APPL. in Globe Trust, In
re, 84 L. J. Ch. 903; 113
L. T. 80; 59 S. J. 529;
31 T. L. R. 280.
APPR. in Marron V. Coote-
hill No. 2 Rural Coun-
cil, 84 L. J. P.C. 125;
(1915) A.C. 792; 79 J.
P. 401
MEWS' NOTER-UP FOR 1915.
Continental Tyre and
Rubber Co. v. Daimler
Co., 84 L. J. K.B. 926;
(1915) 1 K.B. 893; 112 L.
T. 324; 20 Com. Ca.s.
209; 59 S. J. 232; 31 T.
L. H. 159.
Commercial Bank of Aus-
cralia v. Wilson, fi2 L .1
P.C. 61; (189.3) A.C. 181;
68 L. T. 540; 41 W. E.
603.
Cook V. Gordon, 61 L. J.
Q.B. 445.
Cooper V. Cooper, 44 L. .T.
Ch. 6, 14; L. R. 7 H.L.
53, 69.
Cooper V. Reg., 49 L. J.
Ch. 490; 14 Ch. D. 311.
Cooper V. Martin, L. R. 3
Ch. 47.
Cottrell, In re ; Buckland
V. Bedingfield, 79 L. J.
Ch. 189; (1910) 1 Ch.
402; 102 L. T. 157.
Cosier, In re ; Humi)hreys
V. Gadsden, 60 L. J. Ch.
236; (1897) 1 Ch. .525; 76
L. T. 31; 45 W. It. 376.
Cowley V. Newmarket
Local Board, 62 L. J.
Q.B. 65; (1892) A.C. 345;
67 L. T. 486.
Cowan !■. Milbourn 36 L.
J. Ex. 124; 79 J. P.
309; L. R. 2 Ex. 230; 16
L. T. 290; 15 W. R. 750.
Crips, In re ; Crips v.
Todd, 95 L. T. 865.
Crittall Manufacturing
Co. V. London County
Council, 75 J. P. 203.
Coupland r. Hardingham,
3 Camp. 398.
Crowder v. Stone, 7 L. J.
(O.S.) Ch. 93; 3 Russ.
217.
County of Gloucester
Bank r. Rudry Merthyr
Steam and House Coal
Colliery Co., 64 L. .J. Ch.
451 ; (1895) 1 Ch. 629; 72
L. T. 375; 43 W. R. 486;
2 Manson, 223.
APPL. in The Poona, 84 L.
J. P. 1.50; 112 L. T. 782;
59 S. J. 151; 31 T. L.
R. 411.
CONS, and dist. in Mac-
kinnon's Trustee v.
Bank of Scotland,
(1915) S. C. 411.
CONS, in Abrahams V.
Dimmock, 84 L. J.
K.B. 802; (1915) 1 K.B.
662; 112 L. T. 386; 59
S. J. 188; 31 T. L. R.
APPL. in Williams, In re;
Cunliff V. Williams, 84
L. J. Ch. 578; (1915) 1
Ch. 450.
FOLL. in Yorke v. liegem,
84 L. J. K.B. 947; (1915)
1 K.B. 852; 112 L. T.
1135 ; 31 T. L. R. 220.
DISC, in Safford's Settle-
ment, In re, 84 L. J.
Ch. 766; (1915) 2 Ch.
211; 59 S. J. 666; 31 T.
L. R. 529.
APPi,. in Dempster, In re;
Borthwick V. Lovell, 84
L. J. Ch. 597; (1915) 1
Ch. 795; 112 L. T. 1124;
and in Richardson, In
re, 84 L. J. Ch. 438;
(1915) 1 Ch. 353; 112 L.
T. 554.
APPL. in Trollope, In re,
84 L. ,T. Ch. 553; (1915)
1 Ch. 853; 113 L. T. 153.
APPL. in Papworth v.
Battersea Borough
Council (No. 2), 84 L. J.
K.B. 1881; 79 J. P. 309.
OV. in Bowman, In re, 85
L. J. Ch. 1; (1915) 2
Ch. 447; 59 S. J. 703;
31 T. L. R. 618.
APPL. in Johnson, In re;
Cowley V. Public
Trustee, 84 L. J. Ch.
393; (1915) 1 Ch. 435;
112 L. T. 935; 59 S. J.
333.
DISAPPR. in Hampton v.
Glamorgan County
Council, 84 L. J. K.B.
1506; 113 L. T. 112; 13
L. G. R. 819.
DICT. of Lord Ellen-
borough in, APPR. and
APPL. in Att.-Gen. v.
Roe, 84 L. J. Ch. .322;
(1915) 1 Ch. 235; 112 L.
T. 581 ; 79 J. P. 263 ; 13
L. G. R. 335.
DIST. in Dunn v. Morgan,
84 L. J. Ch. 812; 113
L. T. 444.
FOLL. in Cox V. Dublin
City Distillery, (1915) 1
Ir. R. 345
Crosfield k Sons' Applica-
tion, In re, 79 L. J. Ch.
211 ; (1910) 1 Ch. 130 ; 101
L. T. 587; 54 S. J. 100;
26 T. L. R. 100.
Drucker, In re, 71 L. J.
K.B. 686; (1902) 2 K.B.
237; 86 L. T. 785; 9
Manson, 237.
Dawson v. African Con-
solidated Land, &c. Co.,
67 L. J. Ch. 47; (1898)
1 Ch. 6; 77 L. T. 392;
46 W. R. 132; 4 Man-
son, 372.
Devonshire, The, 81 L. J.
P. 94; (1912) A.C. 634;
107 L. T. 179 ; 57 S. J. 10 ;
28 T. L. R. 551.
Donaldson v. Cowan,
(1909) S. C. 1292.
Drylie v. Alloa Coal Co.,
(1913) S. C. 549; (1913)
W.C. & I. Rep. 213.
Dunning r. Owen, 76 L. J.
K.B. 796; (1907) 2 K.B.
237 ; 97 L. T. 241 ; 71
J. P. 383; 23 T. L. R.
494.
D. ['. A. & Co., 69 L. J.
Ch. 382; (1900) 1 Ch.
484; 82 L. T. 47; 48
W. R. 429.
D. V. D. — See Dickinson v.
Dickinson.
Dagnall, In re ; Soan &
Morley, ex parte, 65 L.
J. Q.B. 666; (1896) 2
Q.B. 407; 75 L. T. 142;
45 W. R. 79; 3 Manson,
218.
Dane v. Mortgage Insur-
ance Corporation, 63 L.
J. Q.B. 144; (1894) 1
Q.B. 54; 70 L. T. 83; 42
W. R. 227.
CONS, and APPL. in Sharpe's
Trade Mark, In re, 84
L. J. Ch. 290; 112 L. T.
435; 32 R. P. C. 15; 31
T. L. R. 105.
POLL, in Hooley, In re,
84 L. J. K.B. 1415.
APPL. in Channel Col-
lieries V. Dover, St.
Margaret's, and Martin
Mill Light Railway, 84
L. J. Ch. 28; (1914) 2
Ch. 506 ; 111 L. T. 1051 ;
21 Manson, 328; 30 T.
L. R. 647.
DIST. in The Vmona, 83
L. J. P. 106; (1914) P.
141; 111 L. T. 415; 12
Asp. M.C. 527; 30 T. L.
R. 498.
DISAPPR. in Gibson v.
Wishart, 83 L. J. P.C.
321; (1915) A.C. 18; 111
L. T. 466; 58 S. .1. 592;
30 T. L. R. 540.
APPR. in Brown v. Wat-
son, 83 L. J. P.C. 307;
(1915) A.C. 1; (1914)
W.C. & I. Rep. 228;
111 L. T. 347; 58 S. J.
5.33; 30 T. L. R. 501.
DIST. in Mellor V.
Lydiate. 84 L. J. K.B.
8; (1914) 3 K.B. 1141;
111 L. T. 9S8; 79 J. P.
68; 30 T. L. R. 704.
APPL. in Aberdonia Cars,
Lim. V. Brown, Hughes
(fc Strachan, Lim., 59 S.
.1. 598.
APPL. in Clark, In re;
Pope, ex parte, 84 L. J.
K.B. 89: (1914) 3 K.B.
1095; 112 L. T. 873;
(1915) H. B. R. 1; 59
S. J. 44.
APPL. in Law Guarantee
Trust and .Accident
Society, In re (No. 2),
84 L. J. Ch. 1; (1914) 2
Ch. 617; 111 L. T. 817;
58 S. J. 704 ; 30 T. L. R.
616.
David r. Rees, 73 L. J. CONS, in Reid v. Cupper,
K.B. 729; (1904) 2 K.B. 84 L. J. K.B. 573; (1915)
435; 91 L. T. 244; 52 W. 2 K.B. 147; 112 L. T.
R. 579; 20 T. L. R. 577. 573; 59 S. J. 144; 31 T.
L. R. 103.
Dean r. Ruhian Art Pot-
tery, 83 L. ,T. K.B. 799;
(1914) 2 K.B. 213; (1914)
W.C. & I. Rep. 147; 110
L. T. 594; 58 S. J. 302;
30 T. L. R. 283.
De Hoghton v. De Hogh
ton, 65 L. J. Ch. 667;
(1896) 2 Ch. 385; 74 L. T.
613; 44 W. R. 635.
Daw r. Gray, 48 Ir. L. T.
R. 32.
Davis & Sons v. Taff Vale
Railway. 64 L. ,1. Q.B.
488: (1895) A.C. .542: 72
L. T. 632; 44 W. R. 172.
COMM. on in M'Gowan V.
Merry <{• Cunninghame,
Lim., (1915) S. C. 34.
FOLL. in Greenwood v.
Lutman, (1915) 1 Ir. R.
266.
FOLL. in Cleary v. London
and North - Western
Railway. (1915) 2 Ir. R.
210.
FOLL. in .4ft.-^cii. V.
North-Eastern Railway,
84 L. .1. Ch. 657; (1915)
1 Ch. 905; 113 L. T. 25.
MEWS' NOTER-UP FOR 1915.
Deards v. Edinburgh As- dist. in Maxwell v.
sessor, (1911) S. C. 918. Galashiels Assessor,
(1915) S. C. 765.
Dearberg r. Letchford, 72 not foll. in Nutt's
L. T. 489. Settlement, In re, 84 L.
J. Ch. 877; (1915) 2 Ch.
431; 59 S. J. 717.
Dickinson v. Dicltinson, 82 ov. in Napier v. Napier,
L. J. P. 121; (1913) P. 84 L. J. P. 177; (1915)
198 ; 109 L. T. 408 ; 58 S. P. 184 ; 113 L. T. 764 ;
J. 32 ; 29 T. L. R. 765. 59 S. J. 560 ; 31 T. L. E.
472.
Edwards v. Edwards, 45 appl. in Monolithic Bnild-
L. J. Ch. 391; 2 Ch. D. ing Co., In re; Tacon
291 ; 34 L. T. 472 ; 24 W.'
E. 713.
De Francesco v. Barnum
(No. 2), 60 L. J. Ch. 63;
45 Ch. D. 430.
Didisheim v. London and
Westminster Bank. 69 L.
J. Ch. 443; (1900) 2 Ch.
15; 82 L. T. 738; 48 W.
R. 501.
Dewdney, Ex parte, 15
Ves. 479.
FOLL. in Fred Wilkins &
Brother, Lim. V.
Weaver, 84 L. J. Ch.
929; (1915) 2 Ch. 322.
FOLL. in Peleqrin v.
Coutts & Co., 84 L. J.
Ch. 576; (1915) 1 Ch.
696; 113 L. T. 140.
APPL. in Fleetwood and
District Electric Light,
(tc. Syndicate, In re,
84 L. J. Ch. 374; (1915)
1 Ch. 486; 112 L. T.
1127: (1915) H. B. R.
70; 59 S. J. 383; 31 T.
L. E. 221.
Doherty v. Kennedy, cons, in Cox v. Dublin
(1912) 1 Ir. R. 349 (on City Distillery, (1915) 1
appeal, sub nom. Dublin Ir. R. 345.
Distillery v. Doherty, 83
L. J. P.C. 265; (1914)
A.C. 823).
Doering v. Doering, 58 L. cons, in Dacre, In re,
J. Ch. 553; 42 Ch. D. (1915) 2 Ch. 480.
203; 37 W. R. 796.
Donnelly's Estate, In re,
. (1913) 1 Ir. R. 177.
Dowell V. Dew, 12 L. J.
Ch. 158: aff. 1 Y. & C.
C.C. 345.
Drew V. Barrv, Ir. R.
Eq. 260.
Eberle's Hotels Co. v.
Jonas, 56 L. J. Q.B.
278; 18 Q.B. D. 459: 35
W. R. 467.
Elphinstone (Lord) v.
Monkland Iron and
Coal Co., 11 App. Cas.
332.
Eastbourne Corporation v.
Bradford, 65 L. J. Q.B.
571; (1896) 2 Q.B. 205;
74 L. T. 762; 45 W. R.
31; 60 J. P. 501.
Eaves v. Blaenclydach
Colliery Co., 78 L. J.
K.B. 809: (1909) 2 K.B.
73; 100 L. T. 751.
Eddystone Marine Insur-
ance Co., In re, 61 L. J.
Ch. .362: (1892) 2 Ch.
423; 66 L. T. 370; 40 W.
R. 441.
DIST. in Connell's Settle-
ment, In re, 84 L. J.
Ch. 601: (1915) 1 Ch.
867.
DIST. in Purchase v.
Lichfield Brewery Co.,
84 L. J. K.B. 742; (191.5)
1 K.B. 184; 111 L. T.
1105.
CONS, in Franks's Estate,
In re, (1915) 1 Ir. R.
387.
PRIN. stated in, appl. in
Thorn <{• Son, Lim., In
re. 84 L. J. Ch. 161;
(1914) 2 Ch. 438; 112 L.
T. 30; (1915) H. B. R.
19; 58 S. .1. 755.
DiCT. of Lord Watson in,
APPL. in Dunlop Pneu-
matic Tyre Co. v. New
Garage and Motor Co.,
83 L. J. K.B. 1574;
(1915) A.C. 79; 111 L.
T. 862 ; 30 T. L. R. 625.
APPL. in Htill Corporation
V. North-Eastern Rail-
way, 84 L. J. Ch. 329:
(1915) 1 Ch. 456; 112 L.
T. 584 ; 79 ,1. P. 221 ; 13
L. G. R. 587; 59 S. J.
318.
APPL. in Wall, Lim. v.
Steel, 84 L. J. K.B.
1599; (1915) W.C. & I.
Rep. 117; 112 L. T. 846.
APPL. in Law Guarantee
Trust and Accident
Society, In re (No. 2),
84 L. .7. Ch. 1 ; (1914) 2
Ch. 617; 111 L. T. 817;
.58 .S. .1. 704; .30 T. L.
R. 616.
Edwards v. Hope, 54 L. J.
Q.B. 379; 14 Q.B. D.
922; 53 L. T. 69.
Eley V. Positive Govern-
ment Security Life As-
surance Co., 45 L. J.
Ex. 451; 1 Ex. D. 88;
34 L. T. 190; 24 W. R.
338.
Emanuel v. Constable, 5
L. J. (O.S.) Ch. 191; 3
Russ. 436.
Emmet v. Emmet, 49 L. J.
Ch. 295; 13 Ch. D. 484.
Englehart v. Farrant, 66
L. J. Q.B. 122; (1897) 1
Q.B. 240; 75 L. T. 617;
45 W. E. 179.
Esposito V. Bowden, 27 L.
J. Q.B. 17; 7 E. & B.
763.
Everson, In re, 74 L. J.
K.B. 38; (1904) 2 K.B.
619; 91 L. T. 81; 52 W.
R. 656.
Exchange Telegraph v.
Gregory, 65 L. J. Q.B.
262; (1896) 1 Q.B. 147;
74 L. T. 83; 60 J. P. 52.
Eyton & Co., In re, 57 L.
J. Ch. 127; 36 Ch. D.
299; 57 L. T. 899.
Falkland Islands Co. r.
Reg., 1 Moo. P.C. (N.s.)
299.
Fenton i'. Nevin, 31 L. R.
Ir. 478.
Frederick v. Bognor
Water Co., 78 L. J. Ch.
40; (1909) 1 Ch. 149; 99
L. T. 728 72 J. P. 501:
7 L. G. R. 45; 25 T. L.
R. 31.
Feldman, In re, 97 L. T.
548; 71 J. P. 269; 5 L. G.
R. 653; 23 T. L. R. 432.
V. The Company, 84 L.
J. Ch. 441; (1915) 1 Ch.
643; 112 L. T. 619; 59
S. J. 332.
CONS, in Reid v. Cupper,
84 L. J. K.B. 573; (1915)
2 K.B. 147; 112 L. T.
573; 59 S. J. 144; 31 T.
L. R. 103.
DIST. in Hickman v. Kent
(or Romney Marsh)
Sheep Breeders' Asso-
ciation, 84 L. J. Ch.
688,' (1915) 1 Ch. 881;
113 L. T. 159; 59 S. J.
478.
APPL. in Limond, In re, 84
L. J. Ch. 833; (1915) 2
Ch. 240; 113 L. T. 815;
59 S. J. 613.
FOLL. in Faux, In re, 84
L. J. Ch. 873; 113 L. T.
81; 59 S. J. 457; 31 T.
L. R. 289.
CONS, and appl. in Rickcttt
V. Tilling, 84 L. J. K.B.
342; (1915) 1 K.B. 644;
112 L. T. 137; 31 T. L.
R. 17.
CONS, in Karberg <fc Co.
V. Blythe, Green, Jour-
dain a; Co., 84 L. J.
K.B. 1673; (1915) 2
K.B. 379; 113 L. T. 185;
31 T. L. R. 351.
DIST. in Arnold, In re;
Hext, ex parte, 84 L.
J. K.B. 110; (1914) 3
K.B. 1078; (1915) H. B.
R. 11: 21 Manson, 319;
59 S. J. 9; 30 T. L. R.
691.
POINT in, FOLL. in Goldsoll
V. Goldman, 84 L. J.
63 ; (1914) 2 Ch. 603 ; 112
L. T. 21; 59 S. J. 43.
APPL. in Rubber and Pro-
duce Investment Trust,
In re, 84 L. J. Ch. 534;
(1915) 1 Ch. 382; 112 L.
T. 1129; (1915) H. B.
R. 120; 31 T. L. R. 253.
APPR. in Arnold V. King-
Emperor, 83 L. J. P.C.
299; (1914) A.C. 644; L.
R. 41 Ind. App. 149;
111 L. T. .324; 24 Cox
C.C. 297; 30 T. L. R.
462.
DIST. in Howell, In re;
Buckingham, In re;
Liggins v. Buckingham,
84 L. J. Ch. 209; (1915)
1 Ch. 241 ; 112 L. T. 188.
DIST. in Oddenino v.
Metropolitan Water
Board, 84 L. J. Ch. 102 ;
(1914) 2 Ch. 734; 112 L.
T. 115; 79 J. P. 89; 13
L. G. R. 33; 59 S. J.
129; 31 T. L. R. 23.
DISC, in Stock \. Central
Midwives Board, 84 L.
J. K.B. 1835; (1915) 3
K.B. 756; 113 L. T.
428; 79 J. P. 397; 31 T.
L. R. 436.
MEWS' NOTEE-UP FOE 1915.
Firth V. McPhail. 74 L. J.
K.B. 458; (1905) 2 K.B.
300; 92 L. T. 567; 69 J.
P. 203; 3 L. G. R. 478;
21 T. L. R. 403.
Finlay v. Chirnev, 57 L. .T.
Q.B. 247; 20 Q.B. D. 494;
58 L. T. 664; 52 J. P.
324.
Felstead v. Director of
Public Prosecutions or
Regem, 83 L. J. K.B.
1132; (1914) A.C. 534; 111
L. T. 218; 78 J. P. 313;
24 Cox C.C. 243; 58 S. J.
534; 30 T. L. R. 469.
Finlay i-. Liverpool and
Great Western Steam-
ship Co., 23 L. T. 251.
Finlay i\ Mexican Invest-
ment Corporation, 66 L.
J. Q.B. 151; (1897) 1 Q.B.
517; 76 L. T. 257.
Flatau, In re; Scotch
Whiskey Distillers, ex
parte, 22 Q.B. D. 83; 37
W. R. 42.
Fleetwood, In re ; Sid-
greaves V. Brewer, 49
L. J. Ch. 514; 15 Ch. D.
594-; 29 W. R. 45.
Fraser v. Riddell & Co.,
(1914) W.C. & I. Rep.
125; 1913, S. L. T. 377.
Friends, The, Edw. Adm.
346.
Frith V. " Louisianian "
(Owners), 81 L. .7. K.B.
701; (1912) 2 K.B. 155;
(1912) W.C. Rep. 285;
106 L. T. 667; 28 T. L.
R. 331.
Fo.ster V. Great Western
Railway, 73 L. .1. K.B.
811; (1904) 2 K.B. 306;
90 L. T. 779; 52 W. R.
685; 20 T. L. R. 472.
Fro.st, In re. 59 L. J. Ch.
118; 43 Ch. D. 246; 62 L.
T. 25.
Forre.st v. Manchester &c.
Railway, 30 Beav. 40; 4
L. T. 606.
Foley r. Burnell, 1 Bro.
C.C. 274; 4 Bro. P.C. 34.
CONS, in Bothamley v.
Jolly, 84 L. J. K.B.
2223; (1915) 3 K.B. 425;
31 T. L. R. 626.
DICTA in, NOT FOLL. in
Quirk V. Thomas, 84 L.
.1. K.B. 953; (1915) 1
K.B. 798; 59 S. J. 350;
31 T. L. R. 237.
APPL. in Rex v. Taylor,
84 L. J. K.B. 1671 ;
(1915) 2 K.B. 709; 113
L. T. 513; 79 J. P. 439;
59 S. J. 530; 31 T. L.
R. 449; and foll. in
Houghton, In re, 84 L.
J. Ch. 726; (1915) 2 Ch.
173; 113 L. T. 422; 59
S. J. 562; .31 T. L. R.
427.
DICTUM of Martin, B., in,
CONS, in Sanday V.
British and Foreign
Marine Insurance Co.,
84 L. J. K.B. 1625;
(1915) 2 K.B. 781 ; 59 S.
J. 456; 31 T. L. R. 374.
APPL. in Law Guarantee
Trust and Accident
Society, In re (No. 2),
84 L. J. Ch. 1; (1914)
2 Ch. 617; 111 L. T. 817;
58 S. J. 704; 30 T. L.
R. 616.
APPL. in Howell, In re, 84
L. J. K.B. 1399.
DOUBTED in Le Page v.
Gardom, 84 L. .1. Ch.
749; 113 L. T. 475; 59
S. J. 599.
FOLL. in Williams V. Llan-
dudno Coaching and
Carriage Co., 84 L. J.
K.B. 655; (1915) 2 K.B.
101; (1915) W.C. & I.
Rep. 91; 112 L. T. 848;
59 S. J. 286 ; 31 T. L. R.
186.
CONS, in The lolo, 59 S.
J. 545; 31 T. L. R. 474.
DIST. in Williams V. Llan-
dudno Coaching and
Carriage Co., 84 L. .1.
K.B. 655; (1915) 2 K.B.
101; (1915) W.C. & I.
Rep. 91; 112 L. T. 848;
59 S. J. 286 ; 31 T. L. R.
186.
DIST. in Gunyon v. South-
Eastern and Chatham
Raihvay Companies
Managing Committee,
84 L. J. K.B. 1212;
(191.5) 2 K.B. .370; 31 T.
L. R. 344.
APPL. in Bullock's Will
Trusts, In re, 84 L. J.
Ch. 463; (1915) 1 Ch.
493; 112 L. T. 1119; 59
S. J. 441.
DISAPPR. in Dundee Har-
bour Trustees v. Nicol.
84 L. ,1. P.C. 74: (191.5)
A.C. 5.50; 112 L. T. 697;
31 T. L. R. 118.
CONS, in Swan, In re, 84
L. J. Ch. 590; (1915) 1
Ch. 829; 113 L. T. 42;
31 T. L. R. 266.
Giebler v. Manning, 75 L.
J. K.B. 463; (1906) 1
K.B. 709; 94 L. T. 580;
54 W. R. 527; 70 J. P.
181; 4 L. G. R. 561; 22
T. L. R. 416.
Gibbon v. Paddington Ves-
try, 69 L. J. Ch. 746;
(1900) 2 Ch. 794; 83 L.
T. 136; 49 W. R. 8; 64
J. P. 727.
Greenhalgh v. Brindley, 70
L. J. Ch. 740; (1901) 2
Ch. 324 ; 84 L. T. 763 ; 49
W. R. 597.
Grove v. Dubois, 1 Term
Rep. 112.
Galbraith v. Grimshaw, 79
L. J. K.B. 1011; (1910)
A.C. 508; 103 L. T. 294;
17 Manson, 183; 54 S. J.
634.
Gall r. Loyal Glenbogie
Lodge of the Oddfellows
Friendly Society, 2
Fraser, 1187.
Gamble r. Jordan, 82 L.
J. K.B. 743; (1913) 3
K.B. 149; 108 L. T.
1022; 77 J. P. 269; 11 L.
G. R. 989; 29 T. L. R.
539.
Garrard c. Lauderdale
(Lord), 2 Russ. & M.
451.
Gateuby v. Morgan, 45 L.
J. Q.B. 597; 1 Q.B. D.
685.
Gedney, In re ; Smith r.
Grummitt, 77 L. J. Ch.
428; (1908) 1 Ch. 804; 98
L. T. 797; 15 Manson,
97.
General Rolling Stock
Co., In re ; Joint Stock
Discount Co.'s Claim, ex
parte, 41 L. J. Ch. 732;
L. R. 7 Ch. 646; 27 L.
T. 88; 20 W. R. 762.
General Exchange Bank,
In re, L. R. 4 Eq. 138.
General Billpo.sting Co. r.
Atkinson, 78 L. J. Ch.
77; (1909) A.C. 118; 99
L. T. 943; 25 T. L. R.
178.
Goodall's Settlement, In
re, 78 L. J. Ch. 241;
(1909) 1 Ch. 440; 110 L.
T. 223.
Goldstein r. Sanders. 84
L. J. Ch. 386; (1915) 1
Ch. 549; 112 L. T. 932.
JUDG. of Lord Alver-
stone, C.J., in, expl. in
Kates V. Jeffery, 83 L.
J. K.B. 1760; (1914) 3
K.B. 160; 111 L. T. 459;
24 Cox C.C. 324; 12 L.
G. R. 974; 78 J. P. 310.
FOLL. in Beyfus v. West-
minster Corporation, 84
L. J. Ch. 838; 112 L. T.
119; J. P. Ill; 13 L. O.
R. 40; 59 S. J. 129.
APPR. in Smith v. Col-
bourne, 84 L. J. Ch.
112; (1914) 2 Ch. 533;
111 L. T. 927; 58 S. J.
783.
CONS. in Gabriel V
Churchill <fe Sim, 84 L.
J. K.B. 233; (1914) 3
K.B. 1272; 111 L. T.
933; 19 Com. Cas. 411;
58 S. J. 740; 30 T. L.
R. 658.
APPL. in Singer <t- Co. v.
Fry, 84 L. J. K.B. 2025;
(1915) H. B. R. 115.
DIST. in Collins v. Bar-
roicfield United Odd-
fellows, (1915) S. C.
190.
DIST. in Guildford Cor-
poration V. Brown, 84
L. J. K.B. 289; (1915)
1 K.B. 256; 112 L. T.
415; 79 J. P. 143; 31 T.
L. R. 92.
APPL. in Ellis <i- Co. \.
Cross, 84 L. J. K.B.
1622; (1915) 2 K.B. 654.
APPL. in Jones, In re, 84
L. J. Ch. 222; (1915) 1
Ch. 246; 112 L. T. 409;
59 S. J. 218.
COMM. on in Thome <S:
Son, Lim., In re, 84 L.
J. Ch. 161; (1914) 2 Ch.
438; 112 L. T. 30: (1915)
H. B. R. 19: 58 S. J.
755.
APPL. in Fleetwood and
District Electric Light
and Power Syndicate,
In re, 84 L. J. Ch. 374;
(1915) 1 Ch. 486; 112
L. T. 1127; (1915) H.
B. R. 70; 59 S. J. 383;
31 T. L. R. 221.
PRIN. enunciated by Lord
Roniily, M.R., in, APPL.
in Beer, In re : Brewer
V. Bowman, 59 S. J.
510.
DISC, in Konski v. Peet,
84 L. J. Ch. 513; (1915)
1 Ch 5:J0; 112 L. T.
1107; 59 S. J. 383.
DIST. in Johnson, In re,
84 L. J. Ch. ;193; (1915)
1 Ch. 435; 112 L. T.
935; 59 S. J. 333.
APPL. in Stephenson <t
Co., In re : Poole v.
The Company (So. 2),
84 L. J. Ch. 563; (1915)
1 Ch. 802: 59 S. J. 429;
31 T. L. R. 331.
MEWS' NOTEE-UP FOE 1915.
Gouthwaite v. Duck-
worth. 12 East, 421.
Graham r. Works and
Public Buildings Com-
missioners, 70 L. J. K.B.
860; (1901) 2 K.B. 781;
85 L. T. 96; 50 W. R.
122; 65 J. P. 677.
Gratf r. Evans, 51 L. J.
M.C. 25; 8 Q.B. D. 373;
46 L. T. 347; 30 W. R.
280; 46 J. P. 262.
Great Western (Forest of
Dean) Coal Consumers
Co., In re, 51 L. J. Ch.
743; 21 Ch. D. 769; 46
L. T. 875.
Greaves r. Tofield, 50 L.
J. Ch. 118; 14 Ch. D.
563; 43 L. T. 100.
Greenwell r. Low Beech-
burn Colliery Co., 66 L.
J. Q.B. 642; (1897) 2
Q.B. 165; 76 L. T. 759.
Goy & Co., In re. 69 L. J.
Ch. 481; (1900) 2 Ch.
149; 83 L. T. 309; 48 \V.
R. 425.
Griga i'. Harelda (Own-
ers), 3 B.W.C.C. 116.
FOLL. and APPL. in Kar-
mali AbduUa Allara-
khia V. Vora Karirnji
Jiwanji, L. R. 42 Ind.
App. 48.
APPL. in Roper v. Works
and Public Buildings
Coiyimissioners, 84 L. J.
K.B. 219; (1915) 1 K.B.
45; 111 L. T. 630.
FOLL. and APPL. in Met-
ford V. Edwards, 84 L.
J. K.B. 161; (1915) 1
K.B. 172; 112 L. T. 78:
79 .1. P. 84; 30 T. L. R.
700.
APPL. in Clandown Col-
liery Co., In re, 84 L.
J. Ch. 420; (1915) 1 Ch.
369; 112 L. T. 1060:
(1915) H. B. R. 93; 59
S. J. 350.
DIST. in Monolithic Build-
ing Co., In re; Tacon
V. The Company, 84 L.
J. Ch. 441 ; (1915) 1 Ch.
643; 112 L. T. 619; 59
S. J 332.
DIST. in Att.-Gen. v. Roe,
84 L. J. Ch. 322; (1915)
1 Ch. 235; 112 L. T.
581 ; 79 J. P. 263 ; 13 L.
G. R. 335.
DIST. in Peruvian Rail-
way Construction Co.,
(1915) 2 Ch. 144; 59 S.
J. 579; 31 T. L. R. 464.
FOLL. in Chapman v.
Sage, 113 L. T. 623.
Gregson, In re ; Christison comm. on in Thome <t
Bolam, 57 L. J. Ch.
221; 36 Ch. D. 223; 57
L. T. 250.
Son, Lim., In re, 84 L.
.1. Ch. 161 ; (1914) 2 Ch.
438; 112 L. T. 30; (1915)
H. B. R. 19; 58 S. J.
755.
Greymouth Point Eliza- FOLL. in Cox v. Dublin
beth Railway Co., In City Distillery, (1915) 1
re, 73 L. J. Ch. 92; Ir. R. 345.
(1904) 1 Ch. 32; 11 Man-
son, 85.
Grimble r. Preston, 83 L.
J. K.B. 347; (1914) 1
K.B. 270; 110 L. T. 115;
78 J. P. 72; 12 L. G. R.
382; 24 Cox C.C. 1; 30
T. L. R. 119.
Grimthorpe (Lord), In re,
78 L. J. Ch. 20 ; (1908) 2
Ch. 675; 99 L. T. 679;
25 T. L. R. 15.
Gwilliam r. Twi.st, 64 L.
J. Q.B. 474; (1895) 2
Q.B. 84: 72 L. T. 579;
43 W. R. 566; 59 J. P.
484.
Hallett's Estate, In re ;
KnatchbuU r. Hallett,
49 L. J. Ch. 415; 13 Ch.
D. 696; 42 L. T. 421; 28
W. R. 732.
Hargreaves, In re,
T. 100.
L.
APPL. in Haynes v. Dai-is,
84 L. J. K.B. 441;
(1915) 1 K.B. 332; 112
L. T. 417; 79 J. P. 187;
13 L. G. R. 497.
DIST. in O'Grady's Settle-
ment, In re, 84 L. J.
Ch. 496: (1915) 1 Ch.
613; 112 L. T. 615; 59
S. J. 332.
CONS, and dist. in Ricketts
Y. Tilling, 84 L. J. K.B.
342; (1915) 1 K.B. 644;
112 L. T. 137; 31 T. L.
R. 17.
DIST. in Roscoe (Bolton),
Lim. V. Winder, 84 L.
J. Ch. 286; (1915) 1 Ch.
62 ; 112 L. T. 120 ; (1915)
H. B. R. 61; 59 S. J.
105.
CONS, and DIST. in For-
ster-Brown, In re, 84
L. J. Ch. 361; (1914) 2
Ch. 584; 112 L. T. 681.
Hill V. Wright, 60 J. P.
312.
Hobson V. Blackburn, 1
Addams Ecc. 274.
Horn V. Admiralty Com-
missioners, 80 L. J. K.B.
279; (1911) 1 K.B. 24;
103 L. T. 614; 27 T. L.
R. 84.
Horton r. Walsall Assess-
ment Committee, 67 L.
J. Q.B. 804; (1898) 2
Q.B. 237; 78 L. T. 684;
46 W. R. 607; 62 J. P.
437.
Hadley, In re ; Johnson
V. Hadley, 78 L. J. Ch.
254; (1909) 1 Ch. 20; 100
L. T. 54; 25 T. L. R. 44.
Hastings Peerage Claim,
8 CI. « F. 144.
Hardwicke (Earl) r.
Douglas, 7 CI. (S F. 795.
Hamilton v. Hamilton, 61
L. J. Ch. 220; (1892) 1
Ch. 396; 66 L. T. 112; 40
W. R. 312.
Hall, In re, Hall v. Hall,
54 L. J. Ch. 527; 33 W.
R. 508.
Hall V. Lund, 32 L. J. Ex.
113; 1 H. & C. 676.
Harbridge v. Warwick, 18
L. J. Ex. 245 ; 3 Ex. 552.
Hare v. Surges, 27 L. J.
Ch. 86; 4 K. & J. 45.
Harrison v. W'right, 13
East, 343.
Havnes v. Foster, 70 L. J.
Ch. 302; (1901) 1 Ch.
361; 84 L. T. 139.
Harberton. The, 83 L. .1.
P. 20; (1913) P. 149; lOS
L. T. 7;B5; 12 Asp. M.C.
.342; 29 T. L. R. 490.
Hayward v. West Leigh
Colliery, 84 L. J. K.B.
661: (1915) A.C. 540;
(1915) W.C. & I. Rep.
223; 112 L. T. 1001; 59
S. .1. 269; 31 T. L. R.
215
COMM. on in Godman V.
Crofton, 83 L. J. K.B.
1524; (1914) 3 K.B. 803 ;
111 L. T. 754; 79 J. P.
12 ; 12 L. G. R. 1330.
FOLL. in Walker v. Gag-
kill, 83 L. J. P. 152;
(1914) P. 192; 111 L. T.
941; 59 S. J. 45 ; 30 T.
L. R. 637.
DIST. in Leaf V. Furze, 83
L. J. K.B. 1822; (1914)
3 K.B. 1068; (1911)
W'.C. & I. Rep. 601;
111 L. T. 1100.
FOLL. and EXPL. in Hen-
don Paper Works Co.
V. Sunderland Union,
84 L. J. K.B. 476;
(1915) 1 K.B. 763; 112
L. T. 146; 79 J. P. 113;
13 L. G. R. 97.
CONS. and appl. in
O'Grady, In re, 84 L.
J. Ch. 496 ; (1915) 1 Ch.
613: 112 L. T. 615; 59
S. J. 332.
NOT FOLL. in St. John
Peerage Claim, (1915)
A.C. 282; 30 T. L. R.
640.
DISC, in Stoodley, In re,
84 L. J. Ch. 822; (1915)
2 Ch. 295; 59 S. J. 681.
FOLL. in Hargrove, In re,
84 L. J. Ch. 484; (1915)
1 Ch. .398; 112 L. T.
1062; 59 S. J. 364.
DIST. in Cotter, In re. 84
L. J. Ch. 337; (1915) 1
Ch. 307; 112 L. T. 340;
59 S. J. 177.
DIST. in Pwllbach Col-
liery Co. V. Woodman,
84 L. J. K.B. 874;
(1915) A.C. 634; 113 L.
T. 10; 31 T. L. R. 271.
EXPL. in Mallam v. Rose,
84 L. J. Ch. 934; (1915)
2 Ch. 222.
APPL. in Wynn v. Conway
Corporation, 84 L. J.
Ch. 203; (1914) 2 Ch.
705; 111 L. T. 1016; 78
J. P. 380; 13 L. G. R.
137; 59 S. J. 43; 30 T.
L. R. 666.
FOLL. in Wall V. Rede-
riaktiebolaget Lug-
gude, 84 L. J. K.B.
1663; (1915) 3 K.B. 66;
31 T. L. R. 487.
DIST. m Hargrove. In re,
84 L. J. Ch. .302; (1915)
1 Ch. 398; 112 L. T.
1062; 59 S. J. 364; and
in Tongue, In re ; Bur-
ton, In re, 84 L. .1. Ch.
378; (1915) 1 Ch. 390;
112 L. T. 685.
DIST. in The Ancona, 84
L. J. P. 183; (1915) P.
200.
DISC, and EXPL. in Miller
V. Richardson, 84 L. J.
K.B. 1366; (1915) 3
K.B. 76; 113 L. T. 609;
(1915) W.C. & I. Rep.
381.
MEWS' NOTEK-UP FOE 1915.
Hartland, In re; Banks
t. Hartland, 80 L. J.
Ch. 305; (1911) 1 Ch.
459; 104 L. T. 490; 55 S.
J. 312.
Healey v Galloway, 41 Ir.
L. T. 0.
Hearle v. Hicks, 1 CI. &
F. 20.
dearie v. Greenbank, 3
Atk. 693, 715.
Hatsckett's Patents, In
re. 78 L. J. Ch. 402;
(1909) 2 Ch. 68; 100 L.
L. 809; 26 R. P. C. 228;
25 T. L. R. 457.
Hebert r. Royal Society
of Medicine, 56 S. J.
107.
Heywood v. Heywood, 29
Beav. 9.
Hertfordshire County
Council I'. Great Eastern
Railway, 78 L. J. K.B.
1076; (1909) 2 K.B. 40:3;
101 L. T. 213; 73 J. P.
353; 7 L. G. R. 1006; 53
S. J: 575; 25 T. L. E.
573.
Hill V. Thomas. 62 L. J.
M.C. 161; (1893) 2 Q.B.
333; 69 L. T. 553; 42 W.
R. 85, 57 J. P. 628.
Hill's Trusts, In re, 50 L.
J. Ch. 134; 16 Ch. D.
173.
Hill V. Tottenham Urban
Council, 15 T. L. R. 53.
FOLL. in Briggs, In re, 83
L. J. Ch. 874; (1914) 2
Ch. 413; 111 L. T. 939;
58 S. J. 722.
Hotchkys, In re ; Freke v.
Calmady, 55 L. J. Ch.
546; 32 Ch. D. 408; 55
L. T. 110; 34 W. R. 569.
DIST. in Johnson, In re;
Cowley V. Public
Trustee, 84 L. J. Ch.
393; (1915) 1 Ch. 435;
112 L. T. 935; 59 .S. J.
333.
Hockley v. West London
Timber and .Toinery Co.,
83 L. J. K.B. 1520;
(1914) 3 K.B. 1013;
(1914) W.C. k I. Rep.
504; 112 L. T. 1; 58 S.
J. 705.
Hope t>. Croydon and Noi
wood Tramways, 56 L.
J. Ch. 760; 24 Ch. D.
730; 56 L. T. 822; 35 W.
R. 594.
Home, In re ; Wilson v.
Cox-Sinclair, 74 L. .7.
Ch. 25; (190.5) 1 Ch. 76;
92 L. T. 263; 53 W. R.
317.
CCNS. in Luckie v. Merry,
84 L. J. K.B. 1388;
(1915) 3 K.B. 83; (1915)
W.C. & I. Rep. 395; 113
L. T. 667; 59 S. J. 544;
31 T. L. R. 466.
FOLL. in Stoodley, In re,
84 L. J. Ch. 822; (1915)
2 Ch. 295; 59 S. J. 681.
APPL. in De Virte, In re,
84 L. J. Ch. 617; (1915)
1 Ch. 920; 112 L. T.
972.
FOLL. in Robin Electric
Lamp Co., In re {No.
2), 84 L. J. Ch. 500;
(1915) 1 Ch. 780; 113 L.
T. 132; 32 R. P. C. 202;
31 T. L. R. 309.
EXPL and riST. in Seal v.
Turner, 84 L. J. K.B.
1658; (1915) 3 K.B. 194;
113 L. T. 769; 59 S. J.
649.
DIST. iu Jones, In re, 84
L. J. Ch. 222; (1915) 1
Ch. 246; 112 L. T. 409;
59 S. J. 238.
DIST. in Sharpness New
Docks and Gloucester
and Birmingham Navi-
gation Co. V. Att.-
Gen. 84 L. J. K.B. 907;
(1915) A.C. 654; 112 L.
T. 826 ; 79 .1. P. 305 ; 13
L. G. R. 563; 59 S. J.
381; 31 T. L. R. 254.
JUDG. of Bowen, L.J., in,
CONS, in Ledbury Rural
Council V. Somerset, 84
L. J. K.B. 1297; 113 L.
T. 71; 79 J. P. 327; 13
L. G. R. 701; 59 S. J.
476; 31 T. L. R. 295.
ov. in Dawson, In re;
Pattisson v. Bathurst,
84 L. J. Ch. 476; (1915)
1 Ch. 626; 113 L. T. 19;
.59 S. J. 363; 31 T. L.
R. 277.
FOl.L. in Thompson V.
Bradford Corporation,
84 L. J. K.B. 1440;
(1915) 3 K.B. 13; 79 J.
P. 364; 13 L. G. R.884,
59 S. J. 495.
FOIiL. in Bobbey V.
Crosbie, 84 L. J. K.B.
85fi; (1915) W.C. (fc I.
Rep. 258 ; 112 L. T. 900.
Houston, In re, (1909) 1 foll. in Cross's Trust, In
Ir. R. 319. re, (1915) 1 Ir. R. 304.
Howard v. Howard, 21 foll. in Fisher, In re, 84
Beav. 550. L. J. Ch. 342; (1915) 1
Ch. 302; 112 L. T. 548;
59 S. J. 318.
Huguenin f. Basely, 14 aI'PL. in Lloyd v. Coote
Ves. 273. X- Ball, 84 L. J. K.B.
567; (1915) 1 K.B. 242;
112 L. T. 344.
Home's Settled Estate, dist. in Johnson, In re.
In re, 57 L. J. Ch. 790; 84 L. J. Ch. 393; (1915)
39 Ch. D. 84; 59 L. T. 1 Ch. 435; 112 L. T.
580; 37 W. R. 69. 935; 59 S. J. 333.
Hollis & Son, In re, 112 appk. in Clark, In re, 84
L. T. 135; 58 S. J. 784; L. J. K.B. 89: (1914) 3
30 T. L. R. 680. K.B. 1095; 112 L. T.
873; (1915) H. B. R. 1;
59 S. J. 44.
Hurst V. Picture Theatres, appl. and foll. in Allen
Lim., 83 L. J. K.B. V. King, (191.5) 2 Ir. R.
1837; (1915) 1 K.B. 1; 213.
Ill L. T. 972; 58 S. J.
739; 30 T. L. R. 642.
Huskisson v. Lefevre, 26 cons, in GoswelVs Trusts,
Beav. 157. In re, 84 L. J. Ch. 719;
(1915) 2 Ch. 106; 59 S.
J. 86.
He's Case, Vent. 153.
disc, end appl. in Rex v.
Dymock (Vicar), 84 L.
J. K.B. 94; (19ir>) 1
K.B. 147; 112 L. T. 156;
79 J. P. 91; 13 L. G.
R. 48; 31 T. L. R. 11.
Illingworth, In re, 78 L. disc, in Safford's Settle-
3. Ch. 701; (1909) 2 Ch. ment. In re, 84 L. J
297; 101 L. T. 104; 53 S.
J. 616.
Inland Revenue Commis-
sioners V. Clay and
Buchanan, 83 L. J. K.B.
581, 1425; (1914) 1 K.B.
339; (1914) 3 K.B. 466;
110 L. T. 311; 111 L. T.
484; 58 S. J. 610; 30 T.
L. R. 573.
Inland Revenue Commis-
sioners V. Walker, 84 L.
.T. P.C. 115; (1915) A.C.
509; 112 L. T. 611.
Isle of Wight Railway r.
Tahourdin, 53 L. J. Ch.
353; 25 Ch. D. 320; 50
L. T. 132 ; 32 W. R. 297.
Irving V. Carlisle Rural
Council, 5 L. G. R. 776.
Imjierial
Ch. 766; (1915) 2 Ch.
211; 113 L. T. 723; 59
S. J. 666; 31 T. L. R.
529.
APPR. in Gla.'is v. Inland
Revenue, (1915) S. C.
4249.
disc, in Congregation of
Jews V. Inland
Revenue, (1915) S. C.
997.
APPL. in Barron v.
Potter, 83 L. J. Ch.
646; (1914) 1 Ch. 895
110 L. T. 929; 21 Man
son, 260; 58 S. J. 516
30 T. L. R. 401.
APPL. in Masters V
Hampshire County
Council, 13 L. G. R.
879.
Hydropathic Obs. in, foll. and appl. in
Disr. in Cleary v. Brazil
Railway, 85 L. .T. K.B.
32; 113 L. T. 96.
Hotel Co., In re, 23 Ch.
D. 1; 49 L. T. 147; 31
W. R. .'WO.
CONS
in Ainsworth, In Isaacs. In re, 63 L. .). Ch
re: Finch v. Smith, __
L. .1. Ch. 701 : (1915) 2
Ch. 96; 31 T. L. R. 392.
815; (1894) 3 Ch. 506; 71
L. T. 386; 42 W. R. 685.
Hickman v. Kent or
Romney Marsh Sheep
Breeders' Association,
84 L. J. Ch. 688; (191.5)
1 Ch. 881 ; 113 L. T.
159; 59 S. J. 478.
FOLL. in Marlny, In re;
Rutland (Puke) v.
Bury. 84 L. J. Ch. 706;
(1915) 2 Ch. 264; 59 S.
J. 494; 31 T. L. R. 422.
lU
MEWS' NOTEE-UP FOE 1915.
Ingram & Royle v. Ser-
vice Maritimes du Tr^-
port, 83 L. J. K.B. 1128;
(1914) 3 K.B. 28; 110 L.
T. 967 ; 12 Asp. M.C. 493.
Jones V. Jones, 58 J. P.
653; 10 T. L. R. 300.
Jacob r. Down, 69 L. J.
Ch. 493; (1900) 2 Ch.
156; 83 L. T. 191; 48 W.
R. 441; 64 J. P. 552.
Jacomb i-. Turner, (1892)
1 Q.B. 47.
Jacubs r. Rylance, 43 L.
J. Ch. 280; L. R. 17 Eq.
341.
James r. Buena Ventura
Nitrate Grounds Syndi-
cate, 65 L. J. Ch. 284:
(1896) 1 Ch. 456: 74 L.
T. 1.
Janson v. Driefontein
Consolidated Mines, 71
L. J. K.B. 857; (1902)
A.C. 484; 87 L. T. 372;
51 W. R. 142; 7 Com.
Cas. 268.
Jarman v. Vye, 35 L. J.
Ch. 821 ; L. R. 2 Eq. 784.
Johnson v. Lyttle's Iron
Agency, 46 L. J. Ch.
786; 5 Ch. D. 687; 36 L.
T. 528; 25 W. R. 548.
Jones r. Pritchard, 77 L.
J. Ch. 405: (1908) 1 Ch.
630; 98 L. T. 386; 24 T.
L. R. 309.
DIST. in Hobson v. Leng,
83 L. J. K.B. 1624;
(1914) 3 K.B. 1245; 111
L. T. 954; 59 S. J. 28;
30 T. L. R. 682.
DISS, from in Batchelour
V. Gee, 83 L. J. K.B.
1714; (1914) 3 K.B. 242 ;
111 L. T. 256; 78 J. P.
362; 12 L. G. R. 931;
24 Cos C.C. 268; 30 T.
L. R. 506 : POLL, in
Clifford V. Battley, 84
L. J. K.B. 615; (1915)
1 K.B. 531; 112 L. T.
765; 79 J. P. 180; 13 L.
G. R. 505; 31 T. L. R.
117.
DICT. of Stirling, J., in,
DISAPPR. in Stephens V.
Junior Army and Navy
Stores, 84 L. J. Ch. 56 ;
(1914) 2 Ch. 516; 111 L.
T. 1055: 58 S. J. 808;
30 T. L. R. 697.
DISC, in Blackett v. Rid-
out, 84 L. J. K.B. 1535;
(1915) 2 K.B. 415.
CONS, in Dacre, In re,
(1915) 2 Ch. 480.
APPL. in Lleteellyn v.
Kasintoe Rubber Es-
tates, 84 L. J. Ch. 70;
(1914) 2 Ch. 670; 112 L.
T. 676; 21 Manson, 349;
58 S. J. SOS ; 30 T. L. R.
683.
CONS. in Karberg v.
Blythe. Green, Jour-
dain i£- Co., 84 L. J.
K.B. 1673; (1915) 2
K.B. 379; 113 L. T.
185; 31 T. L. R. 351.
DIST. in Dunn v. Morgan,
84 L. J. Ch. 812 : 113 L.
T. 444.
OBS. in, POLL and appl. in
Hickman v. Kent or
Roinney Marsh Sheep
Breeders' Association,
84 L. J. Ch. 688; (1915)
1 Ch. 881; 113 L. T.
159; 59 S. J. 478.
Keene v. Thomas, 74 L. J. dist. in Cassils & Co. v.
K.B. 21; (1905) 1 K.B. Holden Wood Bleach-
136; 92 L. T. 19; 53 W. ing Co., 84 L. J. K.B.
R. 336; 21 T. L. R. 2. 834; 112 L. T. 373.
Kemble v. Farren, 6 Bing. dict. of Tindal, C.J., in,
141. APPR. in Dunlop Pneu-
matic Tyre Co V. Kew
Garage and Motor Co.,
83 L. J. K.B. 1574;
(1915) A.C. 79; 111 L.
T. 862 ; 30 T. L. R. 625.
Kenward, In re; Ham-
mond r. Eade, 94 L. T.
277.
DIST. in Hay, In re;
Stanley Gibbons, Lim.
V. Hay, 84 L. J. Ch.
821; (1915) 2 Ch. 198;
59 S. J. 680.
Kerr (or Lendrura) r. Ayr appl. in Proctor v. " Set-
Steam Shipping Co., 84 bino " {Owners), 84 L.
L. J. P.C. 1 : (1915) A.C.
217 : 111 L. T. 875 ; (1914)
W.C. & I. Rep. 438; 58
S. J. 737; 30 T. L. R.
664.
Kirkpatrick r. King, 32
Ir. L. T. R. 41.
Kriegel, In re ; Trotman,
ex parte, 6S L. T. 588;
10 Morrell, 99.
Lloyd r. North London
Railway, In re, 65 L. J.
Ch. 626; (1896) 2 Ch.
397; 74 L. T. 548; 44
W. R 522.
Lvne r. Leonard, 9 B. &
S. 65; L. R. 3 Q.B. 156:
18 L. T. 55; 16 W. R.
562.
London and North-West-
ern Railway r. Llan-
dudno Improvement
Commissioners, 66 L. J.
Q.B. 232; (1897) 1 Q.B.
287; 75 L. T. 659; 45 \V.
R. 350; 61 J. P. 55.
Lambert, In re, 27 L. T.
597.
Lancaster v. Eke, 31 L. J.
Ch. 789; 31 Beav. 325.
J. K.B. 1381; (1915) 3
K.B. 344; (1915) W.C.
& I. Rep. 425; 113 L.
T. 640; 59 S. J. 629; 31
T. L. R. 524.
DIST. in Gray v. Gray,
(1915) 1 Ir. R. 261.
POLL, in Barker & Co., In
re, 21 Manson, 238.
APPR and FOIL, in Griggs,
In re; London School
Board, ex parte, 83 L.
J. Ch. 835; (1914) 2 Ch.
547; 111 L. T. 931; 13
L. G. R. 27; 58 S. J.
796.
POLL, in MaiB v. Hollo-
way, 84 L. J. K.B. 99;
(1914) 3 K.B. 595; 111
L. T. 670; 78 J. P. 347.
DISC, in Lancashire and
Yorkshire Railway v.
Liverpool Corporation,
83 L. J. K.B. 1273;
(1915) A.C. 152; 111 L.
T. 596; 78 J. P. 409; 12
L. G. R. 771; 58 S. J.
653; 30 T. L. R. 563.
APPL. in Slater, In re, 113
L. T. 691.
DIST. in Pilet's Deed, In
re; Toursier & Co., ex
parte, 84 L. J. K.B.
2133; 31 T. L. R. 558.
DIST. in Pwllbach Col- Lassence r. Tierney, 1 appl. in Connell's Settle-
Jones V. Selbv, Pr.
300.
Ch.
Juno, The, 112 L. T. iTi;
59 S. J. 251 ; 31 T. L. R.
131.
Jureidini r. National
British and Irish Millers
Insurance Co., 84 L. J.
K.B. 640; (1915) A.C.
499; (1915) W.C. & I.
Rep. 239; 112 L. T. 531:
.59 .S. J. 205; 31 T. L.
R. 132.
liery Co. V. Woodman,
84 L. J. K.B. 874;
(1915) A.C. 634; 113 L.
T. 10 ; 31 T L. R. 271.
POLL, in Wasserberg, In
re. 84 L. J. Ch. 214;
(1915) 1 Ch. 195; 112 L.
T. 242; 59 S. J. 176.
appl. in The lolo, 59 S. J.
545; 31 T. L. R. 474.
CONS, in Wall V. licde-
riaktiebolaget Lug-
gude. 84 L. J. K.B.
1663: (1915) 3 K.B. 66;
31 T. L. R. 487.
Mac. & G. 551.
ment. In re, 84 L. J.
Ch. 601; (1915) 1 Ch.
Lawes V. Bennett, 1 Co.\, expl. in Marlay, In re;
167. Rutland (Duke) V.
Bury, 84 L. J. Ch. 706;
(1915) 2 Ch. 264; 59 S.
J. 494 ; 31 T. L. R. 422.
Leeds and Hanley
Theatres of Varieties,
In re, 73 L. J. Ch. 553:
(1904) 2 Ch. 45; 52 W.
R. 506.
DIST. in Peruvian Rail-
way Construction Co.,
In re, (1915) 2 Ch. 144;
59 S. J. 579; 31 T. L.
R. 464.
Leonard v. Hoare, 83 L. J. ov. in Rex v. Foots
K.B. 1361: (1914) 2 K.B.
798; 111 L. T. 69; 78 J.
P. 287; 12 L. G. R. 844;
30 T. L. R. 425.
Cray Vrban Council, 85
L. J. K.B. 191; 113 L.
T. 705 ; 79 J. P. 521 ; 13
L. G. R. 1027; 59 S. J.
597.
Kaye v. Croydon Tram-
ways Co.. 67 L. J. Ch.
222 ; (1898) 1 Ch. .358 ; 78
L. T. 237; 46 W. R. 405.
CONS, and appl. in Baillie Leslie, In re ; Leslie i-. Disc in Jones' Settle-
V. Oriental Telephone,
Ac, Co., 84 L. J. Ch.
409: (1915) 1 Ch. 503;
112 L. T. 569; 31 T. L.
R. 140.
French, 52 L. J. Ch.
23 Ch. D. 552.
762; ment. In re, 84 L. J.
Ch. 406: (1915) 1 Ch.
373; (1915) W.C. & I.
Rep. 277; 112 L. T.
1067; 59 S. J. 364.
MEWS' NOTEE-UP FOE 1915.
11
Leslie & Co. v. Metropoli-
tan Asylums District
Managers, 68 J. P. 86.
Lester v. Torrens, 46 L. J.
M.C. 280; 2 Q.B. D. 403;
25 W. R. 691.
Liles r. Terry, 65 L. J.
Q.B. 34; (1895) 2 Q.B.
679; 73 L. T. 428; 44 W.
R. 116.
Limpus i\ Arnold, 53 L. J.
Q.B. 415; 54 L. J. Q.B.
85; 13 Q.B. D. 246; 15
Q.B. D. 300.
London County Council v.
Allen, 82 L. J. K.B.
432; (1913) 1 K.B. 9; 107
L. T. 853; 77 J. P. 48;
10 L. G. R. 1089; 23 Cox
C.C. 266 ; 29 T. L. R. 30.
London County Council r.
Bermondsey Bioscope
Co.. 80 L. J. K.B. 141;
(1911) 1 K.B. 445 ; 103 L.
T. 760; 75 J. P. 53; 9
L. Q. R. 79; 27 T. L. R.
141.
London and North-
western Railway and
Great Western Joint
Railways v. Billington,
68 L. J. Q.B. 162;
(1899) A.C. 79; 79 L. T.
503.
London and North-
western Railway v.
Donellan, 67 L. j'. Q.B.
681: (1898) 2 Q.B. 7; 78
L. T. 575.
London and North-
western Railway r.
Runcorn Rural Council,
67 L. J. Ch. 324; (1898)
1 Ch. 561; 78 L. T. 343;
46 W. R. 484; 62 J. P.
643.
London and Northern
Steamship Co. v. Cen-
tral .Argentine Railway,
108 L. T. 527.
Long r. Atkinson, 17
Beav. 471.
Long Eaton Urban Coun-
cil f. Att.-Gen., 84 L. J.
Ch. 131; (1915) 1 Ch.
124 ; 111 L. T. 514 ; 79 ,1.
P. 129; 13 L. G. R. 23;
31 T. L. R. 45.
Lord Advocate r. Moray
(Countess), 74 L. J. P. (J.
122; (1905) A.C. 531 ; 93
L. T. 569: 21 T. L. R.
715.
Love r. Bell, 53 L. J.
Q.B. 257; 9 App. Cas.
286; 51 L. T. 1; 48 J. P.
516.
APPK. in Hampton v. Luckin v. Hamlyn, 21 T.
Glamorgan County L. R. 366.
Council. 84 L. J. K.B.
1506; 113 L. T. 112; 13
L. G. R. 819.
POLL, in Young v. Gentle,
84 L. J. K.B. 1570;
(1915) 2 K.B. 661; 79
J. P. 347; 31 T. L. R.
409.
APPL. in Lloyd v. Coote
& Ball, 84 L. J. K.B.
567; (1915) 1 K.B. 242;
112 L. T. 344.
DICTA in, POLL, in Trol-
lope. In re, 84 L. J. Ch.
553; (1915) 1 Ch. 853;
113 L. T. 153.
DISC, in London County
Council V. Perry, 84 L.
J. K.B. 1518; (1915) 2
K.B. 193; 113 L. T. 85;
79 J. P. 312; 13 L. G.
R. 746; 31 T. L. R. 281.
APPR. in Reg. \. London
County Council; Lon-
don and Provincial
Electric Theatres, Ex
parte, 84 L. J. K.B.
1787; (1915) 2 K.B. 466;
113 L. T. 118; 79 J. P.
417; 13 L. G. R. 847;
59 S. J. 382; 31 T. L.
R. 329.
CONS, in London and
North-Western Rail-
way V. Jones, 84 L. J.
K.B. 1268; (1915) 2
K.B. 35; 113 L. T. 724.
POLL. in London and
Sorth-Western Rail-
way V. Jones, 84 L. J.
K.B. 1268; (1915) 2
K.B. 35; 113 L. T. 724.
DIST. in Hull Corpora-
tion V. Xorth-Eastern
Railway, 84 L. J. Ch.
329; (1915) 1 Ch. 456;
112 L. T. 584; 79 J. P.
221; 13 L. G. R. 587;
59 S. J. 318.
APPR. in Central Argen-
tine Railway v. Mar-
wood, 84 L. J. K.B.
1593.
yOLL. in Bosanquet, In
re; Vnwin V. Petre,
113 L. T. 1.52.
APPL. in Att.-Gen. v.
Ilford Vrban Council,
84 L. J. Ch. 860; 13 L.
G. R. 441.
DICT. of Lord Mac-
naghten in, poll, in
Anson, In re: Buller v.
Anson. 84 L. J. Ch.
347; (1915) 1 Ch. 52;
111 L. T. 1065; 30 T. L.
R. 694.
CONS, in Beard V. Moira
Colliery Co., 84 L. .T.
Ch. 155; (1915) 1 Ch.
257; 112 L. T. 227; 59
S. .1. 103.
Lumsden i-. Inland
Revenue Commission-
ers, 84 L. J. K.B. 45;
(1914) A.C. 877; 111 L.
T. 993; 58 S. J. 738; 30
T. L. R. 673.
Lynch v. Lansdowne (Mar-
quis), (1914) W.C. & I.
Rep. 244; 48 Ir. L. T.
Lyles V. Southend-on-Sea
Corporation, 74 L. .1.
K.B. 484; (1905) 2 K.B.
1; 92 L. T. 586; 69 J.
P. 193; 3 L. G. R. 691;
21 T. L. R. 389.
Lyons v. Weldon, 2 Bing.
334.
Lyttelton Times Co. v.
Warners, 76 L. J. P.C.
100; (1907) A.C. 476; 97
L. T. 496; 23 T. L. R.
751.
Metropolitan Water
Board v. Averv, 83 L. J.
K.B. 178; (1914) A.C.
118; 109 L. T. 762; 78 J.
P. 121; 12 L. G. R. 95;
58 S. J. 171 ; 30 T. L. R.
189.
EXPI.. in Barron v.
Potter, 84 L. J. K.B.
2008; (1915) 3 K.B.
593; 113 L. T. 801; 59
S. J. 650.
POLL, in Inland Revenue
Commissioners V.
Walker, 84 L. J. P'.C.
115; (1915) A.C. 509;
112 L. T. 611. DISC, in
Congregation of Jews
V. Inland Revenue,
(1916) S.-C. 997.
CONS, in Luckie v. Merry,
84 L. J. K.B. 1388;
(1915) 3 K.B. 83; (1915)
W.C. & I. Rep. 395;
113 L. T. 667; 59 S. J.
544; 31 T. L. R. 466.
APPL. in Myers v. Brad-
ford Corporation, 84 L.
J. K.B. 306; (1915) 1
K.B. 417; 112 L. T.
206; 79 J. P. 130; 13
L. G. R. 1; 59 S. J.
57; 31 T. L. R. 44.
POLL, in Mackay, In re,
(1915) 2 Ir. R. 347.
DIST. in Pwllbach Colliery
Co. V. Woodman, 84 L.
J. K.B. 874; (1915)
A.C. 634; 113 L. T. 10;
31 T. L. R. 271.
DIST. in Oddenino v.
Metropolitan Water
Board. 84 L. J. Ch.
102; (1914) 2 Ch. 734;
112 L. T. 115; 79 J. P.
89; 13 L. G. R. 33; 59
S. J. 129; 31 T. L. R.
23.
-Miller r. Hancock, (1893) DiST. in Dobson v.
2 Q.B. 177; 69 L. T. 214; Horsley, 84 L. J. K.B.
41 W. R. 578; 57 J. P. 399; (1915) 1 K.B. 634;
578. 112 L. T. 101; 31 T. L.
R. 12.
Milan, The, 31 L. J. CONS, in The Vmona, 83
Adm. 105; Lush. 388. L. J. P. 106; (1914) P.
141; 111 L. T. 415; 12
Asp. M.C. 527 ; 30 T. L.
R. 498.
-Mackinnon i'. Miller, appl.
m
Proctor
(1909) S. C. 373; 46 Sc.
L. R. 299.
McClelland v. Manchester
Corporation, 81 L. J.
K.B. 98; (1912) 1 K.B.
118; 105 L. T. 707; 76 J.
P. 21; 9 L. G. R. 1209;
28 T. L. R. 21.
McEuen, In re; McEuen
r. Phelps, 83 L. J. Ch.
66; (1913) 2 Ch. 704; 109
L. T. 701; 58 S. J. 82;
30 T. L. R. 44.
M'Laren r. Caledonian
Railway, (1911) S. C.
1075; 48 Sc. L. R. 885.
Mulct's Trusts, In re, 17
L. R. Ir. 424.
.M'Quater r. Fergusson,
(1911) S. C. 640.
" Serbino " (Owners),
84 L. J. K.B. 1381;
(1915) 3 K.B. 344; 113
L. T. 640; (1915) W.C.
iV I. Rep. 425; 59 S. J.
629; 31 T. L. R. 524.
POLL, in Thompson v.
Bradford Corporation,
84 L. J. K.B. 1440;
(1915) 3 K.B. 13: 79 J.
P. 364; 13 L. G. R. 884;
59 S. J. 495.
POLL, in Wills, In re, 84
L. J. Ch. 580; (1915) 1
Ch. 769; 113 L. T. 138;
59 S. J. 477.
APPR. and POLL, in Prit-
chard v. Torkington,
(1914) W.C. & I. Rep.
271; 111 L. T. 917; 58 S.
J. 739.
CONS, in Mackay, In re,
(1915) 2 Ir. R. 347.
DISC, in Galloway (Earl)
V. M-Clelland, (1915) S.
r. 1062.
12
MEWS' NOTEK-UP FOE 1915.
Malcolm v. Charlesworth,
1 Keen, 63.
Marchant v. London
County Council, 79 L. J.
K.B. 718; (1910) 2 K.B.
379; 102 L. T. 917; 74 J.
P. 339; 8 L. G. R. 694;
26 T. L. R. 500.
Massy v. Rogers, 11 L. R.
Ir. 409.
Maxwell i-. Grunhut, 59 S.
J. 104; 31 T. L. R. 79.
Marsh, In re, 54 L. J.
Q.B. 557; 15 Q.B. D.
340; 53 L. T. 418.
Melhado v. Porto Alegre
and New Hamburg and
Brazilian Railway, 43 L.
J. C.P. 253; L. R. 9
C.P. 503; 31 L. T. 57;
23 W. R. 57.
Melhuish v. London
County Council, 83 L. J.
K.B. ■ 1165; (1914) 3
K.B. 325 ; 111 L. T. 539 ;
78 J. P. 441 ; 12 L. G. R.
1086; 30 T. L. R. 527.
Mellor's Trustees i'. Maas,
71 L. J. K.B. 26; 74 L.
J. K.B. 452; (1902) 1
K.B. 137; (1905) A.C.
102; 86 L. T. 490; 92 L.
T. 371; 50 W. R. Ill;
53 W. R. 513; 8 Man-
son, 341 ; 12 Manson
107; 21 T. L. R. 304.
Melson & Co., In re, 75 L.
J. Ch. 509; (1906) 1 Ch.
841; 94 L. T. 641; 54
W. R. 468; 13 Manson,
190; 22 T. L. R. 500.
Mercedes Daimler Motor
Co. V. Maudslay Motor
Co., 32 R. P. C. 149; 31
T. L. R. 178.
Merrick's Case, 2 Peck. 91.
Meyler v. Meyler, 11 L. R.
Jr. 522.
Midland Railway r.
Loseby, 68 L. J. Q.B.
326; (1899) A.C. 133; 80
L. T. 93; 47 W. R. 656.
Mid-Kent Fruit Factory,
In re, 65 L. J. Ch. 250;
(1896) 1 Ch. 567; 74 L.
T. 22; 44 W. R. 284; 3
Manson, 59.
CONS. and appl. in
Gresham Life Assur-
ance Society V. Crow-
ther, 84 L. J. Ch. 312;
(1915) 1 Ch. 214; 111 L.
T. 887; 59 S. J. 103.
DISC, in London County
Council V. Perry, 84 L.
J. K.B. 1518; (1915) 2
K.B. 193; 113 L. T. 85;
79 J. P. 312; 13 L. G.
R. 746; 31 T. L. R. 281.
POLL, in Raven, In re;
Spencer v. National
Association for Preven-
tion of Consumption,
84 L. J. Ch. 489; (1915)
1 Ch. 673; 113 L. T. 131.
POLL, and APPL. in Gaudig
& Blum, In re, 31 T. L.
R. 153.
APPL. in Geiger, In re, 84
L. J. K.B. 589; (1915)
1 K.B. 439; 112 L. T.
562; (1915) H. B. R. 44;
59 S. J. 250.
DIST. in Hickman v.
Kent or Romney Marsh
Sheep Breeders' Asso-
ciation, 84 L. J. Ch.
688; (1915) 1 Ch. 881;
113 L. T. 159; 59 S. J.
478.
JUDG. of Avory, J., in,
COMM. upon in Prance
V. London County
Council, 84 L. J. K.B.
623; (1915) 1 K.B. 688;
112 L. T. 820: 79 J. P.
242 : 13 L. G. R. 382 ; 31
T. L. R, 128.
DISC, and appl. in John-
son V. Rees, 84 L. J.
K.B. 1276.
poll, in Clandown Col-
liery, In re, 84 L. J.
Ch. 420; (1915) 1 Ch.
369; 112 L. T. 1060;
(1915) H. B. R. 93; 59
S. J. 350.
poll, in Rombach Baden
Clock Co., 84 L. J. K.B.
1558; 31 T. L. R. 492.
Midwood
Corporation, 74 L. J
K.B. 884; (1905) 2 K.B.
597; 93 L. T. 525; 54 W.
R. 37; 69 J. P. 348; 3 L.
G. R. 1136; 21 T. L. R.
667.
Manchester dist. in Goodbody v.
Poplar Borough Coun-
cil, 84 L. J. K.B. 1230;
79 J. P. 218; 13 L. G.
R. 166.
Minter v. Snow, 74 J. P. appl. in Rex v. Registrar
257. of Joint-Stock Com-
panies; Boicen, Ex
parte, 84 L. J. K.B.
229; (1914) 3 K.B. 1161;
112 L. T. 38; :30 T. L.
R. 707.
Mirrlees' Charity, In re, comm. on in Glasgow
79 L. J. Ch. 73; (J910) 1 Society for Prevention
Ch. 163; 101 L. T. 549;
26 T. L. R. 77.
of Cruelty to Animals
V. National Anti-Vivi-
section Society, (1915)
S. C. 757.
Mitford Union v. Wayland dicta of Lord Esher in,
Union, 59 L. J. M.C.
25 Q.B. D. 164; 63 L. T.
299; .38 W. R. 632; 54 J.
P. 757.
NOT POLL, in Padding-
ton Vnion V. Westmin-
ster Union. 84 L. J.
K.B. 1727; (1915) 2
K.B. 644; 79 J. P. 343;
13 L. G. R. 641.
Merryweather r. Nixan, 8 the prin. of does not
Term Rep. 186; 1 Sm.
L.C. (12th ed.), 443.
apply in the case of
contribution in general
average, so held in
Austin Friars Steam-
ship Co. V. Spillers <t
Bakers, 84 L. .J. K.B.
1958; (1915) 3 K.B. 586;
113 L. T. 805; 31 T. L.
R. 535.
Moore v. Cleghorn, 10 dist. in Jones, In re, 84
Beav. 423: on app., 12 L. J. Ch. 222; (1915) 1
Jur. 591. Ch. 246; 112 L. T. 409;
59 S. J. 218.
Monckton's Settlement, APPR. in Nutt's Settle-
In re, 83 L. J. Ch. 34; ment. In re. 84 L. J.
(1913) 2 Ch. 636; 109 L. Ch. 877; (1915) 2 Ch.
T. 624 ; 57 S. J. 836. 431 ; 59 S. J. 717.
Morris v. Oceanic Steam
Navigation Co., 16 T.
L. R. 533.
Mowatt V. Castle Steel
and Ironworks Co., 34
Ch. D. 58.
Murphy v. Cooney, (1914)
W.C. & I. Rep. 44; 48
Ir. L. T. 13.
DISC, and appl. in Rex. v.
Dymock (Vicar), 84 L.
J. K.B. 294; (1915) 1 Mustapha, In re, 8 T. L.
K.B. 147; 112 L. T. 156;
79 J. P. 91 ; 13 L. G. R.
48; 31 T. L. R. 11.
NOT POLL, in Cross's Trust,
In re, (1915) 1 Ir. R.
304.
POLL. in London and
North - Western Rail-
way V. Jones, 84 L. J.
K.B. 1268; (1915) 2 K.B.
35; 113 L. T. 724.
DIST. in Thome & Son,
Lim. In re, 84 L. J. Ch.
161; (1914) 2 Ch. 438;
112 L. T. 30; (1915) H.
B. R. 19; 58 S. J. 755.
R. 160.
Newton v. Cubitt, 31 L. J.
C.P. 246; 12 C. B. (N.S.)
32; 6 L. T. 860.
CONS, in Bank of Austra-
lasia \. Clan Line
Steamers, 84 L. J. K.B.
1250; (1916) 1 K.B. 39.
DIST. in Cox V. Dublin
City Distillery Co.,
(1915) 1 Ir. R. 345.
DIST. in Williams V.
Llandudno Coaching
and Carriage Co., 84 L.
J. K.B. 655; (1915) 2
K.B. 101; (1915) W.C.
& I. Rep. 91 ; 112 L. T.
848; 59 S. J. 286; 31 T.
L. R. 186.
POLL, in Wasserberg, In
re, 84 L. J. Ch. 214;
(1915) 1 Ch. 19o: 112 L.
T. 242; 59 S. J. 176.
CONS, in General Estates
Co. V. Beaver, 84 L. J.
K.B. 21; (1914) 3 K.B.
918; 111 L. T. 957; 79
J. P. 41; 12 L. G. R.
1146; 30 T. L. R. 634.
Nash
Rangatira " dist. in Williams v. Llan-
(Owners), 83 L. J. K.B.
1496; (1914) 3 K.B. 978;
(1914) W.C. & I. Rep.
490; 111 L. T. 704; 58 S.
J. 705.
dudno Coaching and
Carriage Co., 84 L. J.
K.B. 655; (191.5) 2 K.B.
101; (1915) W.C. & I.
Rep. 91; 112 L. T. 848;
59 S. J. 286; 31 T. L.
R. 186.
MEWS' NOTER-UP FOR 1915.
13
Nash, In re, 65 L. J. Q.B.
65; (1896) 1 Q.B. 13; 73
L. T. 477; 44 W. R. 112 ;
2 Manson, 503.
Neil V. Neil, 4 Hag. Ecc.
Rep. 273.
Newdigate Colliery Co., In
re, 81 L. J. Ch. 235;
(1912) 1 Ch. 468; 106 L.
T. 133; 19 Manson, 155;
28 T.. L. R. 207.
Newquay Urban Council
V. Rickeard, 80 L. J.
K.B. 1164; (1911) 2 K.B.
846; 1D5 L. T. 519; 9 L.
G. R. 1042; 75 J. P. 382.
New River Co. v. Hertford
Union, 71 L. J. K.B.
827; (1902) 2 K.B. 597;
87 L. T. 360; 51 W. R.
49; 66 J. P. 724.
New York Taxicab Co., In
re ; Sequin v. The Com-
pany, 82 L. J. Ch. 41;
(1913) 1 Ch. 1 ; 107 L. T.
813; 19 Manson, 389; 57
S. J. 98.
Noblett V. Hopkinson, 74
L. J. K.B. 544; (1905)
2 K.B. 214 ; 92 L. T. 462 ;
53 W. R. 637; 69 J. P.
269; 21 T. X. R. 448.
North of England Insur-
ance Association v.
Armstrong, 39 L. J. Q.B.
81; L. R. 5 Q.B. 244;
21 L. T. 822; 18 W. R.
520.
Norton, In re, 80 L. J. Ch.
119; (1911) 2 Ch. 27; 103
L. T. 821.
North - West Transport-
ation Co. V. Beatty, 56
L. J. P.C. 102; 12 App.
Cas. 589; 57 L. T. 426.
Odessa, The, 84 L. J. P.
112; (1915) P. 52; 112 L.
T. 473; 59 S. J. 189: 31
T. L. R. 148.
Offln V. Rochford Rural
Council, 75 L. J. Ch.
348; (1906) 1 Ch. 342; 94
L. T. 669; 54 W. R. 244;
4 L. G. R. 595; 70 ,T. P.
97.
Oilier V. Oilier, 84 L. .1. P.
23; (1914) P. 240; 111 L.
T. 697; 58 S. J. 754.
Osborn v. Qillett, 42 L. J.
Ex. 53; L. R. 8 Ex. 88;
28 L. T. 197; 21 W. R.
409.
APPL. in Geiger, In re, 84
L. J. K.B. 589; (1915)
1 K.B. 439; 112 L. T.
562; (1915) H. B. R. 44;
59 S. J. 250.
DIST. in Hall v. Hall, 84
L. J. P. 93; (1915) P.
105; 112 L. T. 58; 59
S. J. 381.
DIST. in Great Cobar,
Lim., In re, 84 L. J. Ch.
468; (1915) 1 Ch. 682;
(1915) H. B. R. 79.
DICT. of Lord Alverstone,
C.J., in, DisAPPR. in
Chatterton V. Glanford
Brigg Rural Council,
84 L. J. K.B. 1865;
(1915) 3 K.B. 707; 113
L. T. 746; 79 J. P. 441;
13 L. G. R. 1352.
POLL. in Metropolitan
Water Board v. Chert-
sey Union, 84 L. J.
K.B. 1823; 79 J. P. 360;
13 L. G. R. 692.
CONS, in Oregson v. Tap-
lin & Co., 112 L. T.
985; 59 S. J. 349.
PIST. in Bristow v. Piper,
84 L. J. K.B. 607;
(1915) 1 K.B. 271; 112
L. T. 426; 79 J. P. 177;
59 S. J. 178 ; 31 T. L. R.
80.
FOLI.. in Thames and Mer-
sey Marine Insurance
Co. V. British and
Chilean Steamship Co.,
84 L. J. K.B. 1087;
(1915) 2 K.B. 214; 113
L. T. 173; 20 Com. Cas.
265; 31 T. L. R. 275.
CONS, in Hewett's Settle-
ment, In re, 84 L. J.
Ch. 715; (1915) 1 Ch.
810; 113 L. T. 315; 59
S. J. 476.
CONS, and APPL. in Trans-
vaal Lands Co. v. New
Belgium (Transvaal)
Land, ic, Co., 84 L. .1.
Ch. 84; (1914) 2 Ch.
488; 112 L. T. 965; 21
Manson, 364; 59 S. J.
27; 31 T. L. R. 1.
FOM,. in The Linaria, 59
S. J. 530; 31 T. L. R.
.396.
DIST. in Thornhill V.
Weeks (No. 3), 84 L. J.
Ch. 282; (191.5) 1 Ch.
106; 111 L. T. 1067; 78
J. P. 154; 12 L. G. R.
597.
CONS, and appi,. in Wood-
cock V. Woodcock, 111
L. T. 924.
DIST. in Berry v. Humm,
84 L. .T. K.B. 918;
(1915) 1 K.B. 627; .31 T.
L. R. 198.
Osmond v. Mutual Cycle dict. of A. L. Smith,
and Manufacturing Sup-
ply Co., 68 L. J. Q.B.
1027; (1899) 2 Q.B. 488;
81 L. T. 254; 48 \V. R.
125.
Oxford Building and In-
vestment Co., In re, 49
L. T. 495.
L.J. in, DISS, from in
Seal'w Turner, 84 L. J.
K.B. 1658; (1915) 3
K.B. 194; 113 L. T.
769; 59 S. J. 649.
AI'PL. in Rubber and Pro-
duce Investment Trust,
In re, 84 L. J. Ch. 534;
(1915) 1 Ch. 382; 112 L.
T. 1129; (1915) H. B. R.
120; 31 T. L. R. 253.
Perry v. Meddowcroft, 12 doubted in Scott, In re,
L. J. Ch. 104; 4 Beav. 84 L. J. Ch. 366; (1915)
197. 1 Ch. 592; 112 L. T.
1057; 31 T. L. R. 227.
Pickavance v. Pickavance, comm. on in Hopkins v.
70 L. J. P. 14; (1901) P. Hopkins, 84 L. J. P. 26;
60; 84 L. T. 62. (1914) P. 282; 112 L. T.
174.
Payne r. Fortescue, 81 L. dist. in Cooper v. Wales,
J. K.B. 1191; (1912) 3
K.B. 346; (1912) W.C.
Rep. 386; 107 L. T. 136;
57 S. J. 80.
L. J. K.B. 1321;
(1915) 3 K.B. 210; (1915)
W.C. & I. Rep. 307; 59
S. J. 578; 31 T. L. R.
506.
Perkins, In re; Bagot v. DIST. in Vatcher v. Paull,
Perkins, 62 L. J. Ch.
531; (1893) 1 Ch. 283; 67
L. T. 743.
Pearks, Gunston and Tee
V. Houghton, 71 L. ,7.
K.B. 385; (1902) 1 K.B.
889; 86 L. T. 325; 50 W.
R. 605; 66 J. P. 422.
Pennell v. Uxbridge
Churchwardens, 31 L. J.
M.C. 92; 8 Jur. N.S. 99.
Peter v. Stirling, 10 Ch.
D. 279; 27 W. R. 469.
Plumb V. Cobden Flour
Mills Co.. 83 L. J. K.B.
197; (1914) A.C. 62;
(1914) W.C. & I. Rep.
48; 109 L. T. 759: 58 S.
J. 184; 30 T. L. R. 174.
Plunimcr. In re, 69 L. J.
Q.B. 936; (1900) 2 Q.B.
790; 83 L. T. 387: 48 W.
H. 634: 7 Manson, .367.
Poyser, In re : Landon v.
Poyser, 77 L. .1. Ch. 482 ;
(1908) 1 Ch. 828; 99 L. T.
50.
P. Caland (Owners) r.
Glamorgan Stcam.ship
Co., 62 L. .1. P. 41;
(189.3) A.C. 207: 68 L. T.
469; 7 A.sp. M.C. 317.
Palace Hotel, Lim.. In re,
81 L. J. Ch. 695; (1912)
2 Ch. 438 : 107 L. T. 521 ;
19 Manson, 295; 56 S. J.
649.
L. J. P.C. 86; (1915)
A.C. 372; 112 L. T.
737 ; and in Holland, In
re 84 L. J. Ch. 389;
(1914) 2 Ch. 595; 112 L.
T. 27.
FOLL. in Batchelour V.
Gee, 83 L. J. K.B.
1714; (1914) 3 K.B. 242;
111 L. T. 256; 78 J. P.
362 ; 12 L. G. R. 931 ; 24
Cox C.C. 268; 30 T. L.
R. 506.
FOLL. and APPL. in God-
man V. Crofton, 83 L.
J. K.B. 1524; (1914) 3
K.B. 803: 111 L. T. 754;
79 J. P. 12 ; 12 L. G. R.
1330.
DIST. in Scott, In re, 84
L. J. Ch. 366; (1915) 1
Ch. 592 ; 112 L. T. 1057 ;
31 T. L. R. 227.
FOLL. in Herbert V. Fox
& Co.. 84 L. J. K.B.
670; (191.5) 2 K.B. 81;
(1915) W.C. & I. Rep.
154; 112 L. T. 833; 59
S. J. 249.
FOLL. in Branson, In re,
83 L. J. K.B. 1673;
(1914) 3 K.B. 1086; 111
L. T. 741 ; :iO T. L. R.
604.
FOLL. in Forster-Brown,
In re, 84 L. .1. Ch. 361 ;
(1914) 2 Ch. 584: 112 L.
T. 681.
RULE laid down by Lord
Herschell and Lord
Watson in. as to con-
current findincs, coNS.
in " Hatfield " (Own-
ers) V. " Glasgow "
(Owners). 84 L. J. P.
161; 112 L. T. 703.
FOLL. in Xordberg, In re,
84 L. J. Ch. 830; (1915)
2 Ch. 439; 59 S. J. 717.
14
MEWS' NOTEE-UP FOE 1915.
Panhaus i-. Brown,
P. 435.
Park's Settlement, In re ;
Foran i-. Bruce, 83 L. J.
Ch. 528; (1914) 1 Ch.
595; 110 L. T. 813; 58 S.
J. 362.
Parry, In re. 73 L. J.
K.B. 83; (1904) 1 K.B.
129 ; 89 L. T. 612 ; 52 W.
R. 256; 11 Manson, 18;
20 T. L. R. 73.
Peckover v. Defries, 71 J.
P. 38.
Pekin, The, 66 L. J. P.C.
97; (1897) A.C. 532; 77
L. T. 443.
Perry v. Wright, 77 L. J.
K.B. 236; (1908) 1 K.B.
441; 98 L. T. 327; 24 T.
L. R. 186.
Peverett, In the goods of,
71 L. J. P. 114 ; (1902) P.
205; 87 L. T. 143.
Phillips c. Beal, 32 Beav.
26.
Phillimore, In re; Philli-
more v. Milnes, 73 L. J.
Ch. 671; (1904) 2 Ch.
460; 91 L. T. 256; 52 W.
R. 682.
Phillips I'. Gutteridge, 32
L. J. Ch. 1; 3 De G. J.
& S. 332.
Punt V. Svmons, 72 L. J.
Ch. 768; (1903) 2 Ch.
506; 89 L. T. 525; 52 W.
R. 41.
Registrar of Joint
Stock Companies ;
Bowen, Ex parte, 84 L.
J. K.B. 229; (1914) 3
K.B. 1161; 112 L. T. 38;
.30 T. L. R. 707.
NOT POLL, in Bullocl's
Will Trust, In re, 84 L.
J. Ch. 463; (1915) 1 Ch.
493; 112 L. T. 1119; 59
S. J. 441.
DIST. in Collins, In re,
112 L. T. 87.
Rex V. Pointon i'. Hill, 53 L. J. DISC, and comm. on in
M.C. 62 ; 12 Q.B. D. 306 ;
50 L. T. 268.
Mathers V. Penfold, 84
L. J. K.B. 627; (1915)
1 K.B. 514; 112 L. T.
726 ; 79 J. P. 225 ; 13 L.
G. R. 359; 59 S. J. 235;
31 T. L. R. 108.
Pollitt, In re ; Minor, ex DIST. in Thome & Son,
parte, 62 L. J. Q.B. 236;
(1893) 1 Q.B. 455; 68 L.
T. 366; 41 W. R. 276; 10
Morrell, 35.
Lini., In re, 84 L. J.
Ch. 161; (1914) 2 Ch.
438 ; 112 L. T. 30 ; (1915)
H. B. R. 19; 58 S. J.
755.
Porter i'. Freudenberg, 84 appl. in Wilson <£■ Wilson,
L. J. K.B. 1001; (1915)
1 K.B. 857; 112 L. T.
313; 20 Com. Cas. 189;
32 R. P. C. 109; 59 S. J.
216; 31 T. L. R. 162.
In re,
1893.
L. J. K.B.
Potts, In re ; Taylor, ex
parte, 62 L. J. Q.B. 392;
(1893) 1 Q.B. 648; 69 L.
T. 74; 41 W. R. 337; 10
Morrell, 62.
Preston r. Guyon or POLL, in Galloway V.
CONS. in Mellor v.
Lydiate, 84 L. J. K.B.
8; (1914) 3 K.B. 1141;
111 L. T. 988; 79 J. P.
68; 30 T. L. R. 704.
DIST. and EXPL. in The
Olympic and H.M.S.
Hawke, 84 L. J. P. 49;
(1915) A.C. 385; 112 L.
T. 49; 31 T. L. R. 54.
POLL, in Greenwood v.
Nail A- Co., 84 L. J.
K.B. 1356; (1915) 3 K.B.
97; (1915) W.C. & I.
Rep. 346; 113 L. T.
612; 59 S. J. 577; 31
T. L. R. 476.
DIST. in Strong v.
Hadden, 84 L. J. P.
188; (1915) P. 211; 112
L. T. 997; 31 T. L. R.
256.
APPL. in Fleetwood and
District Electric Light
(fee. Co., In re, 84 L. J.
Ch. 374; (1915) 1 Ch.
486; 112 L. T. 1127;
(1915) H. B. R. 70; 59
S. J. 383; 31 T. L. R.
221.
APPL. in Trafford's Prince i'. Cooper, 17 Beav.
Settled Estates, In re, IS''.
Pope, In re ; Dicksee, ex appr. in Collins, In re, 112
parte, 77 L. J. K.B. 767; L. T. 87.
(1908) K.B. 169; 98 L. T.
775; 15 Manson, 201; 24
T. L. R. 556.
DIST. in Gershon & Levy,
In re, 84 L. J. K.B.
1668; (1915) 2 K.B. 527;
59 S. J. 440.
Grand Collier Dock Co.,
10 L. J. Ch. 73; 11 Sim.
327.
Price y. Union Lighterage
Co., 73 L. J. K.B. 222;
(1904) 1 K.B. 412; 89 L.
T. 731; 52 W. R. 325; 9
Com. Cas. 120; 20 T. L.
R. 177.
Proctor I). Robinson, 80 L.
J. K.B. 641; (1911) 1
K.B. 1004.
L. J. Ch. 351; (1915)
1 Ch. 9 ; 112 L. T. 107.
APPL. and POLL. in
Buchanan, In re;
Stephens V. Draper,
(1915) 1 Ir. R. 95.
was ov. by the Court of
Appeal in Bailey v.
British Equitable
Assurance Co. (73 L. J.
Ch. 240; (1904) 1 Ch.
374) ; and the reversal
of the latter decision
by the House of Lords
(75 L. .T. Ch. 73; (1906)
A.C. 35) was not due to
any dissent from the
principle enunciated by
the (jourt of Appeal,
which indeed was
recognised by the House
of Lords : so held in
British Murac Syndi-
cate V. Alperton
Rubber Co., 84 L. J.
Ch. 665; (1915) 2 Ch.
186: 59 S. J. 494; 31 T.
L. R. 391.
Raine In the goods of, 1
Sw. & Tr. 144.
Rayson v. South London
Tramways, 62 L. J. Q.B.
593: (1893) 2 Q.B. 304;
69 L. T. 491; 42 W. R.
21.
Rex V. Norton, 79 L. J.
K.B. 756; (1910) 2 K.B.
496; 102 L. T. 926; 74 J.
P. 375; 54 S. J. 602; 26
T. L. R. 550.
Russell V. Town and
County Bank, 58 L. J.
P.C. 8; 13 App. Cas.
418; 59 L. T. 481; 53 J.
P. 244.
Playfair v. Cooper, 23 L. POLL, in Croxon, In re;
J. Ch. 341 : 17 Beav. 187. Ferrers v. Croxon, 84 L.
J. Ch. 845; (1915) 2 Ch.
290; 59 S. J. 693.
Halle Concerts Society,
84 L. J. Ch. 723; (1915)
2 Ch. 233 ; 59 S. J. 613 ;
31 T. L. R. 469.
DIST. in Tracers V.
Cooper, 83 L. J. K.B.
1787; (1915) 1 K.B. 73;
111 L. T. 1088; 20 Com.
Cas. 44 ; 30 T. L. R. 703.
CONS. in Silcock v.
Golightly, 84 L. J. K.B.
499; (1915) 1 K.B. 748;
(1915) W.C. & I. Rep.
164; 112 L. T. 800.
POLL, in Croxon, In re, 84
L. J. Ch. 845; (1915) 2
Ch. 290; 59 S. J. 693.
COMM. on in Walker v.
Gaskill 83 L. J. P. 152 ;
(1914) P. 192; 111 L. T.
941; 59 S. J. 45; 30 T.
L. R. 637.
DIST. in Wiffen \. Bailey,
84 L. J. K.B. 688; (1915)
1 K.B. 600; 112 L. T.
274 ; 79 J. P. 145 ; 13 L.
G. R. 121 ; 59 S. J. 176 ;
31 T. L. R. 64.
DISC. and EXPL. in
Director of Public
Prosecutions v. Christie,
83 L. .T. K.B. 1097;
(1914) A.C. 545; 111 L.
T. 220; 78 J. P. 321; 24
Cox C.C. 249; 58 S. J.
515; 30 T. L. R. 471.
POLL. in General
Hydraulic Power Co. \.
Hancock. 83 L. J. K.B.
906; (1914) 2 K.B. 21;
111 L. T. 251: 6 Tax
Cas. 445; 30 T. L. R.
203. PRIN. of, APPL. in
Usher's Wiltshire
Brewery v. Bruce, 84
L. .7. K.B. 417; (1915)
A.C. 433; 112 L. T. 651;
6 Tax Cas. 399 : 59 S. J.
144; 31 T. L. R. 104.
MEWS' NOTER-UP FOE 1915.
\5
Radford v. Bright, Lim.,
In re, 70 L. J. Ch. 78,
352; (1901) 1 Ch. 272,
735; 84 L. T. 150.
Raleigh ti. Go.schen, 67 L.
J. Ch. 59: (1898) 1 Ch.
73; 77 L. T. 429; 46 W.
R. 90.
Randle i\ Clay Cross Co.,
83 L. J. K.B. 167; (191.^)
3 K.B. 795; 109 L. T.
522; 29 T. L. R. 624.
Reg. V. Beclvley, 57 L. J.
M.C. 22; 20 Q.B. D. 187;
57 L. T. 716; 36 W. R.
160; 16 Cox C.C. 331; 52
J. P. 120.
Reg. I'. Blane, 18 L. .1.
M.C. 216; 13 Q.B. 769.
Reg. t). Cox, 54 L. J. M.C.
41; 14 Q.B. D. 153; 52 L.
T. 25; 33 W. R. 396; 15
Cox C.C. 611 ; 49 J. P.
374.
Reg. I'. Eagleton, 24 L. J.
M.C. 158, 166; Dears.
C.C. 515, 538.
Reg. V. Grant or Gaunt,
36 L. J. M.C. 89; L. R.
2 Q.B. 466; 8 B. & S.
365; 16 L. T. 379; 15 W.
R. 1172.
Reg. V. Glynne, 41 L. J.
M.C. 58; L. R. 7 Q.B.
16; 26 L. T. 61; 20 W.
R. 94.
Reg. V. Hensler, 22 L. T.
691.
Reg. V. Langrnead, 10 L.
T. 350.
SUGGE.S. in, ACTED on in Reg. r. Welsh, 11 Cox
Rubber and Produce C.C. 336.
Investment Trust, In
re, 84 L. J. Ch. 534;
(1915) 1 Ch. 382; 112 L.
L^H^'T^^^^^^p"o?i"- l^<^g- '■■ Westmoreland
120; 31 T. L. R. 253. County Court Judge, 36
W. R. 477.
APPI.. in Roper V. Works
and Public Buildings Keg. v. Wiley, 20 L. J.
Commissioners, 84 L. J. MC 4 9-4 Cox CC
K.B. 219; (1915) 1 K.B. 114 ' 421 ' ' "
45; 111 L. T. 630.
point in, ov. in Harwell
V. Newport Abercarn
Black Vein Steam Coal
Co., 84 L. J. K.B. 1105;
(1915) 2 K.B. 256; 112 L.
T. 806; 59 S. J. 233; 31
T. L. R. 136.
4PPR. and FOLi,. in Rex v.
Beacontree Justices, 84
L. J. K.B. 2230; (1915)
3 K.B. 388; 13 L. G. R.
1094; 31 T. L. R. 509.
DISC, and dist. in Rex v.
Humphreys ; Ward, Ex
parte, 84 L. J. K.B.
187 ; (1914) 3 K.B. 1237 ;
111 L. T. 1110; 79 J. P.
66; 30 T. L. R. 698.
POLL, in Rex V. Smith,
84 L. J. K.B. 2153; 59
S. J. 704; 31 T. L. R.
617.
Registrar of Trade Marks
V. Du Cros, 83 L. J. Ch.
1; (1913) A.C. 624; 109
L. T. 687; 30 R. P. C.
60; 57 S. J. 728; 29 T.
L. R. 772.
Rex I'. Alexander, 109 L.
T. 745.
Rex V. Bond, 75 L. J. K.B.
693; (1906) 2 K.B. 389;
95 L. T. 296; 54 W. R.
586 ; 70 J. P. 424 ; 21 Cox
C.C. 252; 22 T. L. R.
633.
Rhodesia Goldfields, In re,
79 L. J. Ch. 133; (1910)
1 Ch. 239; 102 L. T. 126;
17 Manson, 23; 54 S. J.
135.
DICT. of Parke. B., in, „. „^ „ ^
APPR. and POLL, in Rex R'^er steamer Co., In re
V. Robinson, 84 L. J.
K.B. 1149; (1915) 2
K.B. 342; 79 J. P. 303:
59 S. J. 366; 31 T. L.
R. 313.
CONS, in McGregor V.
Telford, 84 L. J. K.B.
1902; (1915) 3 K.B. 237;
113 L. T. 84; 31 T. L.
R. 512.
CONS, in McGregor V.
Telford, 84 L. J. K.B.
1902; (1915) 3 K.B. 237;
113 L. T. 84; 31 T. L.
R. 512.
FOI.L. in Rex v. Light, 84
L. J. K.B. 865; 112 L.
T. 1144; 59 S. J. 351;
31 T. L. R. 257.
FOi.i,. in Rex v. Curnock,
111 L. T. 816.
Mitchell's Claim, L. R.
6 Ch. 822.
Rex V. .Johnson, 78 L. J.
K.B. 290; (1909) 1 K.B.
439; 100 L. T. 464; 73
J. P. 1.35; 53 S. J. 288;
25 T. L. R. 229.
Rex V. Fisher, 79 L. J.
K.B. 187; (1910) 1 K.B.
149; 102 L. T. Ill; 74
J. P. 104; 26 T. L. R.
122.
Ilex V. Rodley. 82 L. .1.
K.B. 1070; (191;?) 3 K.B.
468; 109 L. T. 476: 77 J.
P. 465; 58 S. J. 51; 20
r. L. R. 700.
FOI.L. in Rex v. Lesbini,
84 L. J. K.B. 1102;
(1914) 3 K.B. 1116; 112
L. T. 175.
DIST. in McArdle V. Kane,
(1915) 1 Ir. R. 259.
DICT. of Patteson, J., in,
APPR. in Rex v. Berger,
84 L. J. K.B. 541; 31 T.
L. R. 159.
*PPL. in British Milks
Products Co.'s Applica-
tion, In re, 84 L. J. Ch.
819; (1915) 2 Ch. 202;
32 R. P. C. 453.
FOLL. in Rex v. Lesbini,
84 L. J. K.B. 1102;
(1914) 3 K.B. 1116; 112
L. T. 175.
CONS. in Perkins v.
Jeffery, 84 L. J. K.B.
1554; (1915) 2 K.B. 702;
79 J. P. 425; 31 T. L.
R. 444.
DIST. in Smelting Cor-
poration, In re; Seaver
V. Smelting Corpora-
tion, 84 L. J. Ch. 571,-
(1915) 1 Ch. 472; 113 L.
T. 44; (1915) H. B. R.
126.
JPPL. in Fleetwood and
District Light and
Power Syndicate, In re,
84 L. J. Ch. 374; (1915)
1 Ch. 486: 112 L. T.
1127; (1915) H. B. R.
70; 59 S. J. 383; 31 T.
L. R. 221.
FOLL. in Rex v. Evans, 84
L. J. K.B. 1603; (1915)
2 K.B. 762; 79 J. P.
415; 59 S. J. 496; 31 T.
L. R. 410.
APPR. and APPL. in Rex v.
Kurasch. 84 L. J. K.B.
1497; (1915) 2 K.B. 749;
79 .7. P. 399.
APPR. and APPL. in Rex v.
Kurasch. 84 L. J. K.B.
1497; (1915) 2 K.B. 749;
79 J. P. 399.
Reg. r. Local Government appl. in Rex v. Loral
Board, 52 L. J. M.C. 4:
10 Q.B. D. 309; 48 L. T.
173.
Government Board;
Thorp, Ex parte, 84 L.
J. K.B. 1184; 112 L. T.
860; 79 J. P. 248; 13 L.
G. R. 402.
Rex V. Thame (Church- Disc, and appl. in Rex v.
wardens), 1 Str. 115. Dymock (Vicar), 84 L.
J. K.B. 294; (1915) 1
K.B. 147; 112 L. T. 156;
79 J. P. 91 ; 13 L. G. R.
48; 31 T. L. R. 11.
Reg. V. Machen, 18 L. J. EXPL. in McGregor
Rex V. Norfolk County DIST.
Thornhill v.
M.C. 213; 14 Q.B. 74.
Telford. 84 L. .1. K.B.
1902; (1915) 3 K.B. 237;
113 L. T. 84; 31 T. L.
R. .512.
Council. 70 L. .1. K.B.
575; (1901) 2 K.B. 268;
84 L. T. 822: 49 W. R.
543; 65 .T. P. 454.
Weeks (No. 3), 84 L. J.
Ch. 282; (1915) 1 Ch.
106; 111 L. T. 1067; 78
.T. P. 154: 12 L. G. R.
597.
Reg. r. Saddlers Co., .32 L. cONS. in London and
Ruby, The, 83 L. T. 438.
J. Q.B. .337; 10 H.L. C. Counties Assets Co. V.
404. Brighton Grand Con-
cert Hall and Picture
Palace, 84 L. .1. K.B. Rex v. Jefferson, 24 T. L.
991 ; (191.')) 2 K.B. 493;
112 L. T. .380; (1915)
II. B. U. 83.
U. 877.
FOLL. in Mackay. In re,
(1915) 2 Ir. R. ,347.
FOLL. in Rex v. Gilbert,
84 L. J. K.B. 1424; 112
L. T. 479.
16
MEWS' XOTEE-UP FOR 1915.
Rex i\ Kerrison, 3 M. &
S. 526.
Renfrew r. M'Crae, (1914)
W.C. & I. Rep. 195;
(1914) 1 S. L. T. 354.
Reynault, In re, 16 Jur.
233.
Rhodesia Goldfields, In re,
79 L. J. Ch. 133; (1910)
1 Ch. 239 ; 102 L. T. 126 ;
17 Manson, 23; 54 S. J.
135.
Richardson, In re ; St.
Thomas's Hospital
Governors, ex parte, 80
L. J. K.B. 12.32; (1911)
2 K.B. 705: 105 L. T.
226.
Richards v. Wrexham and
Acton Collieries, 83 L.
J. K.B. 6S7: (1914) 2
K.B. 497; 110 L. T. 402;
30 T. L. R. 228.
Robbins v. Jones, 33 L. J.
C.P. 1; 15 C.B. (N.s.)
221.
Roberts v. Bishop of Kil-
more, (1902) 1 Ir. R.
333.
Robins r. Grav, 65 L. J.
Q.B. 44; (1895) 2 Q.B.
501; 73 L. T. 252; 44 W.
R. 1; 59 J. P. 741.
Roney, In re, 83 L. J.
K.B. 451; (1914) 2 K.B.
529; 110 L. T. 111.
Ross, In re; Ashton r.
Ross, 69 L. J. Ch. 192;
(1900) 1 Ch. 162; 81 L.
T. 578; 48 W. R. 264.
Rugby Trustees v. Merry-
weather, 11 East, 275n.
Rushton r. Skey & Co., 83
L. J. K.B. 1503; (1914)
3 K.B. 706; (1914) W.C.
& I. Rep. 497; 111 L. T.
700; 58 S. J. 685; 30 T.
L. R. 601.
Eylands r. Fletcher, 37 L.
J. Ex. 161 ; L. R. 3 H.L.
330; 19 L. T. 220.
DIST. in Sharpness Xew
Docks and Gloucester
and Birmingham ynri-
gation Co. v. Att.-
Gen., 84 L. J. K.B. 907;
(1915) A.C. 654; 112 L.
T. 826: 79 J. P. 305; 13
L. G. R. 563; 59 S. J.
381: 31 T. L. R. 254.
DIST. in Williams v. Llan-
dudno Coaching and
Carriage Co., 84 L. J.
K.B. 655; (1915) 2 K.B.
101; (1915) W.C. i- I.
Rep. 91; 112 L. T. 848;
59 S. J. 286; 31 T. L.
R. 186.
POLL, in Leigh v. Pantin,
84 L. J. Ch. 345; (1914)
2 Ch. 701; 112 L. T. 26.
DIST. in Peruvian Rail-
way Construction Co.,
In re, (1915) 2 Ch. 144;
59 S. J. 579; 31 T. L.
R. 464.
EXPL. and DIST. in Law
Guarantee Trust and
Accident Society, In re
(.Vo. 2), 84 L. J. Ch. 1:
(1914) 2 Ch. 617; 111 L.
T. 817: 58 S. J. 704: 30
T. L. R. 616.
POLL, in Higginson v.
Blackwell Colliery Co..
84 L. J. K.B. 1189; 112
L. T. 442; 31 T. L. R.
95.
POLL. in Horridge V.
Makinson, 84 L. J. K.B.
1294; 113 L. T. 498; 13
L. G. R. 868; 31 T. L.
R. 389.
DIST. in Jones, In re, 84
L. J. Ch. 222; (1915) 1
Ch. 246: 112 L. T. 409;
59 S. J. 218.
DIST. in Cassils <fc Co. V.
Holden Wood Bleach-
ing Co., 84 L. J. K.B.
834; 112 L. T. 373.
DlCT. in APPR. in Seal v.
Turner, 84 L. J. K.B.
1658; (1915) 3 K.B. 194;
113 L. T. 769; 59 S. J.
649.
POLL, in Dempster, In re.
84 L. J. Ch. 597; (1915)
1 Ch. 795; 112 L. T.
1124.
APPR. in Kingston-upon-
Hull Corporation v.
Korth-Eastern Railway,
84 L. J. Ch. 329; (1915)
1 Ch. 456; 112 L. T.
584 ; 79 J. P. 221 ; 13 L.
G. R. 587; 59 S. J. 318.
#PPI.. in Allen v. Francis,
83 L. J. K.B. 1814;
(1914) 3 K.B. 1065;
(iai4) W.C. & I. Rep.
599; 112 L. T. 62 : 58 S.
J. 753; 30 T. L. R. 695.
PRINC. in, when appl.,
CONS, in Goodbody v.
Poplar Borough Coun-
cil, 84 L. J. K.B. 1230;
79 J. P. 218; 13 L. G.
R. 166.
Simcoe, In re ; Vowles-
Simcoe v. Vowler, 82 L.
J. Ch. 270; (1913) 1 Ch.
552; 108 L. T. 891; 57
S. J. 533.
Sion College i-. London
Corporation, 70 L. J.
K.B. 369; (1901) 1 K.B.
617; 84 L. T. 133; 49 W.
R. 361; 65 J. P. 324.
Squire v. Squire, 74 L. J.
P. 1: (1905) P. 4; 92 L.
T. 472; 21 T. L. R. 41.
DIST. in Lawrence (Lord),
In re, 84 L. J. Ch. 273 ;
(1915) 1 Ch. 129; 112 L.
T. 195; 59 S. J. 127.
POLL, in Associated News-
papers, Lira. V. Lon-
don Corporation (No.
2), 84 L. J. K.B. 1913;
(1915) 3 K.B. 128; 113
L. T. 587; 59 S. J. 545;
31 T. L. R. 432.
APPR. in Oilier V. Oilier,
84 L. J. P. 23; (1914)
P. 240; 111 L. T. 697;
58 S. J. 754.
Stebbing r. Metropolitan disc, and expl. in Corrie
Board of Works, 40 L. v. MacDermott, 83 L.
J. Q.B. 1; L. R. 6 Q.B. J. P.C. 370; (1914) A.C.
37; 23 L. T. 530; 19 W. 1056; 111 L. T. 952.
R. 73.
Steel V. Lester, 47 L. J.
C.P. 43; 3 C. P. D. 121;
.37 L. T. 642; 26 W. R.
212.
POLL, in Associated Port-
land Cement Manufac-
turers V. Ashton, 84 L.
J. K.B. 519; (1915) 2
K.B. 1; 112 L. T. 486;
20 Com. Cas. 165.
Stinson's Estate, In re, poll, in Cross's Trust, In
(1910) 1 Ir. R. 13. re, (1915) 1 Jr. R. 304.
South Wales Railway r. disc, in Lancashire and
Swansea Local Board of
Health. 24 L. J. M.C.
30; 4 E. & B. 189.
Yorkshire Railway v.
Liverpool Corporation,
84 L. J. K.B. 1273;
(1915) A.C. 152; 111 L.
T. 596; 78 J. P. 409;
12 L. G. R. 771; 58 S.
J. 653; 30 T. L. R. 563.
Stokes V. Stokes, 80 L. J. cons, in McGregor v.
P. 142; (1911) P. 195; Telford, 84 L. J. K.B.
105 L. T. 416; 75 J. P. 1902; (1915) 3 K.B. 237;
502: 55 S. J. 690; 27 T. 113 L. T. 84; 31 T. L.
L. R. 553. R. 512.
Sykes v. Sowerby Urban poll, in Yorkshire (W.R.)
Council. 69 L. J. Q.B. Rivers Board V. Lin-
464; (1900) 1 Q.B. 584; thwaite Urban Council
82 L. T. 177; 64 J. P. (No. 2), 84 L. J. K.B.
340. 1610: 79 J. P. 433; 13
L. G. R. 772.
Sutton V. Great Northern appl. in Taylor v. Cripps,
Railway, 79 L. J. K.B.
81; (1909) 2 K.B. 791;
101 L. T. 175.
83 L. J. K.B. 1538:
(1914) 3 K.B. 989;
(1914) W.C. & I. Rep.
515; 111 L. T. 780; 30
T. L. R. 616.
Salt c. Tomlinson, 80 L. cons, in Bothamley v.
J. K.B. 897; (1911) 2 Jolly, 84 L. J. K.B.
K.B. .391; 105 L. T. 31: 2223; (1915) 3 K.B. 435;
75 J. P. 398; 9 L. G. R. 31 T. L. R. 626.
822; 27 T. L. R. 427.
Sampson, In re, 65 L. J.
Ch. 406; (1896) 1 Ch.
630; 74 L. T. 246; 44 W.
R. 557.
Sanders' Trusts, In re, L.
R. 1 Eq. 675.
Saunders r. Thorney,
L. T. 627.
Saville v. Robertson, 4
Term Rep. 720.
APPL. in Jenkins, In re;
Williams V. Jenkins, 84
L. J. Ch. 349; (1915) 1
Ch. 46.
POLL, in Jones, In re;
Last V. Dobson, 84 L.
.1. Ch. 222 ; (1915) 1 Ch.
246; 112 L. T. 409; 59
S. J. 218.
DIST. in Bristow v. Piper,
84 L. J. K.B. 607:
(1915) 1 K.B. 271: 112
L. T. 426; 79 J. P. 177;
59 S. J. 178; 31 T. L.
R. 80.
DIST. in Karmali Abdulla
Allarakhia V. Vara
Karinji Jiwangi, L. R.
42 Ind. App. 48.
MEWS' NOTER-UP FOR 1915.
17
Schweder, In re, (1893)
W. N. 12; 37 S. J. 249.
Scott V. Avery, 25 L. J.
Ex. 308; 5 H.L. C. 811.
Singer Manufacturing Co.
V. London and South-
Westewi Railway, 63 L.
J. Q.R. 411: (1894) 1
Q.B. 833; 70 L. T. 172;
42 W. R. 347.
Shewan v. Vanderhorst, 1
Russ. & My. 347; 2
Russ. & My. 75.
Sharpe r. Sharpe, 78 L. J.
P. 21; (1909) P. 20; 99
L. T. 884; 25 T. L. R.
131.
Sharpington v. Fulhani
Guardians, 73 L. J. Ch.
777; (1904) 2 Ch. 449; 91
L. T. 739; 52 W. R. 617;
68 J. P. 510: 20 T. L.
R. 643: 2 L. G. R. 1229.
Sharpness New Docks i'.
Att.-Gen., 84 L. J. K.B.
907 ; (1915) A.C. 654 ; 112
L. T. 826; 79 J. P. 305:
13 L. G. R. 563; 59 S. J.
381: 31 T. L. R. 254.
NOT POLL, in Trollope, In
re, 84 L. J. Ch. 553;
(1915) 1 Ch. 853; 113
L. T. 153.
UIST. in Jureidini V.
National British and
Irish Millers' Insur-
ance Co., 84 L. J. K.B.
640; (1915) A.C. 499;
(1915) W.C. ^ I. Rep.
239 ; 112 L. T. 531 ; 59
S. J. 205; 31 T. L. R.
132.
DIST. in CassiU <t Co. v.
Holden Wood Bleach-
ing Co., 84 L. J. K.B.
834; 112 L. T. 373.
Somes, In re, 66 L. J. Ch.
262; (1896) 1 Ch. 250; 74
L. T. 49; 44 \V. R. 236.
South African Territories
V. Wallington, 67 L. J.
Q.B. 470; (1898) A.C.
309; 78 L. T. 426; 46 VV.
R. 545.
.South Llanharran Colliery
Co., In re, 12 Ch. D.
503.
.4PPL. in Fleetwood and
District Electric Light, Swinburne
(He. Co., In re, 84 L. J.
Ch. 374; (1915) 1 Ch.
486; 112 L. T. 1127;
(1915) H. B. R. 70; 59
S. J. 383; 31 T. L. R.
221.
DICT. of Bargrave Deane,
J., in, DISC, and dist.
in Hall v. Hall, 84 L.
J. P. 93: (1915) P. 105;
113 L. T. 58; 59 S. J.
381.
APPR. in Myers v. Brad-
ford Corporation, 84 L.
J. K.B. 306; (1915) 1
K.B. 417; 112 L. T.
206: 79 J. P. 130; 13
L. G. R. 1: 59 S. J. 57;
31 T. L. R. 44.
APPL. in Att.-Gen. v.
Great Xorthern Rail-
way, 84 L. J. K.B. 793;
59 S. J. 578; 31 T. L.
R. 501.
L. J. Q.B. 6: 9 App
Cas. 844; 52 L. T. 222;
33 W. R. 325.
DIST. in Jones's Settle-
ment, In re, 84 L. J.
Ch. 406: (1905) 1 Ch.
373; (1915) W.C. & I.
Rep. 277; 112 L. T.
1067; 59 S. J. 364.
APPL. in Kuala Pahi
Rubber Estates v.
Mowbray, 111 L. T.
1072 ; and in Smelting
Corporation, In re, 84
L. J. Ch. 571; (1915) 1
Ch. 472; 113 L. T. 44;
(1915) H. B. R. 126.
DIST. in Menell, Lim., In
re; Regent Street Pur
Co. V. Diamant, 84 L.
J. Ch. 593; (1915) 1 Ch.
759; 113 L. T. 77; (1915)
H. B. R. 141: 31 T. L.
R. 270.
Milburn, 54 poll, in Wynn v. Conway
Corporation, 84 L. J.
Ch. 203; (1914) 2 Ch.
705; 111 L. T. 1016; 78
J. P. 380; 13 L. G. R.
137; 59 S. J. 43: 30 T.
L. R. 666.
Standing i'. Eastwood,
(1912) W.C. Rep. 200;
106 L. T. 477.
Stamford (Earl), In re :
Payne v. Stamford, 65
L. J. Ch. 134: (1896) 1
Ch. 288.
Stedham, In the goods of,
50 L. J. P. 75; 6 P. D.
205.
Staffordshire Gas and
Coke Co., In re; Nichol-
son, ex parte, 66 L. T.
413.
Sinclair. In re; Allen r. dist. in Dempster, In re;
Sinclair, 66 L. J. Ch.
514; (1S97) 1 Ch. 921; 76
L. T. 452; 45 W. R. 596.
Borthwick V. Lorell, 84
L. J. Ch. 597: (1915) 1
Ch. 795 ; 112 L. T. 1124 ;
and in Richardson, In Stanford r. Roberts. 53 L.
re;_Mahony J. Treacy, j_ ^h. 338: 26 Ch. D.
(1915) 1 Ir. R.
l.iS: 50 L. T. 147.
Shirley v. Fisher, 47 L. T. DIST. in Jones' Settle-
109. ment. In re, 84 L. J.
37'3; aWwX-.'/i: «t^«' - Dartford Local
Rep. 277; 112 L. T.
1067; 59 S. J. 364.
Board, 60 L. .1. Q.B. 256.
Sir John Moore Gold
Mining Co., In re, 12
Ch. D. 325.
Skeats, In re, 58 L. .1. Ch.
656; 42 Ch. D. 522.
Smith V. Lion Brewery
Co., 80 L. J. K.B. 566":
(1911) A.C. 150; 104 L.
T. .321 : 75 .1. P. 273 ; 55
S. .T. 269: 27 T. L. R.
261.
APPL. in Rubber and Pro-
duce Investment Trust,
In re, 84 L. J. Ch. 534:
(1915) 1 Ch. 382; 112 L.
T. 1129: (1915) H. B.
R. 120; 31 T. L. R. 25.3.
DIST. in Cotter, In re, 84
L. J. Ch. 337; (1915) 1
Ch. 307: 112 L. T. 340;
59 S. J. 177.
PRIN. of, APPL. in Vsher's
Wiltshire Brexoery V.
Bruce, S4 L. J. K.B.
417: (1915) A.C. 433;
112 L. T. 651 : 6 Tax
Cas. .399: 59 S. .1. 144:
31 T. L. R. 104.
Summerlee Iron Co. i\
Freeland, 82 L. J. P.C.
102: (191.3) A.C. 221:
(1913) W.C. & I. Rep.
.302 : 108 L. T. 465 : 57 S.
.T. 281 : 29 T. L. R. 277.
Steel I'. Young, (1907) S.
C. 360.
Sword I'. Cameron, 1 Dun-
lop, 493.
DISC, and dist. in Good-
sell V. " Lloyds "
(Owners), 83 L. J.
K.B. 1733; (1914) 3
K.B. 1001; (1914) W.C.
& I. Rep. 585; 111 L.
T. 784; 30 T. L. R. 622.
APPL. in Cotter, In re, 84
L. J. Ch. 337: (1915) 1
Ch. 307; 112 L. T. 340;
59 S. J. 177.
POLL, in Carleton, In the
goods of, (1915) 2 Ir.
R. 9.
OV. in Channell Col-
lieries Trust V. St.
Margaret's, Dover, and
Martin Mill Light Rail-
way, 84 L. J. Ch. 28;
(1914) 2 Ch. 506: 111
L. T. 1051: 21 Man-
son, 328; 30 T. L. R.
647.
E.\PL. and POLL, in Mor-
gan cfc Co., In re, 84 L.
J. Ch. 249; (1915) 1 Ch.
182; 112 L. T. 239; 59
S. .1. 289.
DIST. in Thompson v.
Bradford Corporation,
84 L. J. K.B. 1440:
(1915) 3 K.B. 13: 79 J.
P. 364 : 13 L. G. R. 884 ;
59 S. J. 495.
APPL. in Cooper v. Wales,
84 L. J. K.B. 1321 :
(191.5) 3 K.B. 210;
(1915) W.C. & I. Rep.
.307: 59 S. J. 578; 31 T.
L. R. 506.
DISC, and doubt, in For-
rest V. Scottish County
Investment Co., (1915)
S. C. 115.
DIST. in Canadian Pacific
Railway v. Frechette,
84 L. J. P.C. 161 : (1916)
A.C. 871 : 31 T. L. R.
529.
Smith-Bosanquct's Settled poll, in Maryon-Wilson's .Svkcs
Estates. In re. 107 L. T. Settled Kstotes, In rr. 114.
191. 84 L. .1. Ch. 121 : (1915)
1 Ch. 29: 112 L. T. 111.
Sheard, .33 Beav. cons, in Goswell's Trusts,
In re, 84 L. .T. Ch. 719;
(1915) 2 Ch. 106: 113 L.
T. 319: 59 S. .T. 579
18
MEWS' NOTEE-UP FOE 1915.
Stroud I'. Norman, 23 L.
J. Ch. 443: Kay, 313.
Symes, Ex parte, 103 L. T.
428; 75 J. P. 33; 9 L. G.
R. 154; 22 Cox C.C.
346; 27 T. L. R. 21.
Tafl Vale Railway v. Jen-
kins, 82 L. J. K.B. 49;
(1913) A.C. 1; 107 L. T.
564; 57 S. J. 27; 29 T.
L. R. 19.
Talbot V. Frere, 9 Cb. D.
568; 27 W. R. 148
Tattersall v. National
Steamsbip Co., 53 L. J.
Q.B. 332; 12 Q.B. D.
297; 50 L. T. 299; 32 W.
R. 566 ; 5 Asp. M.C. 206.
Tavarone Mining Co., In
re ; Pritcbard's Case, 42
L. J. Ch. 768; L. R. 8
Ch. 956; 29 L. T. 363;
21 W. R. 829.
Taylor's Settlement, In
re, 22 L. J. Cb. 142; 9
Hare, 596.
Taylor v. Roe, 63 L. J.
Ch. 282; (1894) 1 Ch.
413; 70 L. T. 232; 42 W.
R. 426.
Taylor, In re, 56 L. J. Cb.
597.
Thatcher's Trusts, In re,
26 Beav. 365.
Thompson i;. Cohen, 41 L.
J. Q.B. 221; L. R. 7
Q.B. 527: 26 L. T. 693.
Tbornbill v. Weeks (No.
2), 82 L. J. Ch. 485;
(1913) 2 Ch. 464; 109 L.
T. 146; 11 L. G. R.
1183.
DIST. in Vatcher v. PauU,
84 L. J. P.C. 86; (1915)
A.C. 372; 112 L. T. 737.
FOLL. in White v. Jacl;-
son, 84 L. J. K.B. 1900;
113 L. T. 783; 79 J. P.
447; 31 T. L. R. 505.
APPL. in Berry v. Uumrii.
84 L. J. K.B. 918;
(1915) 1 K.B. 627; 31
T. L. R. 198.
Travers and Sons i'. foll. in Pyman Steam-
Cooper, 83 L. J. K.B.
1787; (1915) 1 K.B. 73;
111 L. T. 1088; 20 Com.
Cas. 44 ; 30 T. L. R. 703.
ship Co. V. Hull and
Barnsley Railway, 84
L. J. K.B. 1235; (1915)
2 K.B. 729; 112 L. T.
1103; 20 Com. Cas. 259;
31 T. L. R. 243.
COMM. on in Thome &.
Son, Lim., In re, 84 L.
J. Ch. 161 ; (1914) 2 Ch.
438 ; 112 L. T. 30 ; (1915)
H. B. R. 19; 58 S. J.
755.
CONS, in Bank of Austra-
lagia V. Clan Line
Steamers, 84 L. J. K.B.
1250; (1916) 1 K.B. 39.
DIST. in Hickman v. Kent
or Romney Marsh
Sheep Breeders' Asso-
ciation, 84 L. J. Ch.
688; (1915) 1 Cb. 881;
113 L. T. 159; 59 S. J.
478.
CONS, in Goswell's Trusts,
In re, 84 L. J. Cb. 719;
(1915) 2 Ch. 106; 113 L.
T. 319; 59 S. J. 579.
FOLL. and APPL. in Alex-
ander V. Curragh,
(1915) 1 Ir. R. 273.
POLL, in Wasserherg, In
re, 84 L. J. Ch. 214;
(1915) 1 Cb. 195; 112
L. T. 242; 59 S. J. 176.
FOLL. in Hewett's Settle-
ment, In re, 84 L. J.
Cb. 715: (1915) 1 Cb.
810; 113 L. T. 315; 59
S. J. 476.
EXPL. and DIST. in Lind,
In re, 84 L. J. Cb. 884 ;
(1915) 2 Cb. 345; 59 S.
J. 651.
FOLL. in Thornhill v.
Weeks (No. 3), 84 L. J.
Cb. 282; (1915) 1 Cb.
106; 111 L. T. 1067;
78 J. P. 154; 12 L. G.
R. 597.
Tremayne v. Rashleigh, 77 view of Eve, J., in, diss.
L. J. Cb. 365; (1908) 1 from in Heard v. Gab-
Cb. 681; 98 L. T. 615. bett, (191.5) 1 Ir. R.
213.
Tringham's Trusts, In re, foll. in Cross's Trust, In
73 L. J. Ch. 693; (1904) re, (1915) 1 Ir. R. 304.
2 Ch. 487; 91 L. T. 370;
20 T. L. R. 657.
Tuck, In re ; Murch v.
Loosemore, 75 L. J. Ch.
497; (1906) 1 Ch. 692;
94 L. T. 597; 22 T. L. R.
425.
held not appl. in Aber-
donia Cars, Lim. V.
Brown, Hughes &
Strachan, Lim., 59 S.
J. 598.
Turnbull, In re; Skipper appl. in Snape, In re;
V. Wade, 74 L. J. Ch. Elam v. Phillips, 84 L.
438; (1905) 1 Ch. 726; 53 J. Ch. 803; (1915) 2 Ch.
W. R. 440. 179; 113 L. T. 4.39; 59
S. J. 562.
Tyler v. Tyler, 60 L. J. foll. in Davies, In re;
Cb.
252.
(1891) 3 Cb.
Lloyd V. Cardigan
County Council, 84 L.
J. Ch. 493; (1915) 1 Ch.
543; 112 L. T. 1110; 79
J. P. 291; 13 L. G. R.
437; 59 S. J. 413.
Tynron (Owners) v. Mor- foll. in Chapman v,
gan, 78 L. J. K.B. 857; Sage, 113 L. T. 623.
(1909) 2 K.B. 66; 100 L.
T. 641.
Uzielli V. Boston Marine c o N s . in British
Insurance Co., 54 L. J. Dominions General In
Thornton r. Hawlev, 10 CONS, in Goswell's Trusts,
Ves. 129. In re, 84 L. J. Ch. 719;
(1915) 2 Ch. 106; 113 L.
T. 319; 59 S. J. 579.
Tilt Cove Copper Co., In foll.
Braunstein A'
re ; Trustees, Executors
and Securities Corpora-
tion (1. The Company,
82 L. .7. Cb. .545; (1913)
2 Ch. 588: 109 L. T. 138;
57 S. .1. 773.
Marjolaine, Lim., In
re, 112 L. T. 25; 58 S.
J. 755.
Q.B. 142; 15 Q.B. D. 11.
Vardon's Trusts, In re, 55
L. J. Ch. 259; 31 Ch. D.
275; 53 L. T. 895.
Vezev V. Rashleigh, 73 L.
J. Ch. 422 ; (1904) 1 Ch.
6.34; 90 L. T. 663; 52 W.
R. 442.
Victorian Railways Com-
missioners V. Coultas,
57 L. .1. P.C. 69; 13 App.
Cas. 222; 58 L. T. 390;
37 W. R. 129; 52 J. P.
500.
Victoria Steamboats,
Lim., In re; Smith v.
Wilkinson, 66 L. J. Ch.
21; (1897) 1 Ch. 158; 75
L. T. 374; 45 W. R. 135.
Webster v. Cohen, (191.S)
W.C. & I. Rep. 268; 108
L. T. 197; 29 T. L. R.
217.
Tolhurst V. Associated cons, in Sorrentino v.
Portland Cement Manu-
facturers, n L. J. K.B.
949; 72 L. J. K.B. 8.34;
(1902) 2 K.B. 660: (1903)
A.C. 414; 87 L. T. 465;
89 L. T. 196; 51 W. R.
81 ; 52 W. R. 143.
Buerger. 84 L. .7. K.B.
725; (1915) 1 K.B. 307;
112 L. T. 294; 20 Com.
Cas. 132.
surance Co. v. Duder,
84 L. J. K.B. 1401;
(1915) 2 K.B. 394; 113
L. T. 210; 20 Com. Cas.
270; 31 T. L. R. 361.
EXPL. in Hargrove, In re,
84 L. J. Ch. 484; (1915)
1 Ch. 398; 112 L. T.
1062; 59 S. J. 364.
CONS. in Williams v.
Moss' Empires, Lim., 84
L. J. K.B. 1767; (1915)
3 K.B. 242: 113 L. T.
560; 31 T. L. R. 463.
disc, in Coyle (or Brown)
V. Watson, 83 L. J.
P.C. 307; (1915) A.C.I;
(1914) W.C. & I. Rep.
228; 111 L. T. 347; 58
S. J. 533; 30 T. L. R.
501.
FOLL. in Braunstein v.
Marjolaine, In re, 112
L. T. 25: 58 S. J. 755.
APPL. in Potter V. Welsh
& Sons, Lim., 83 L. J.
K.B. 1852; (1914) 3
K.B. 1020; (1914) W.C.
& I. Rep. 607: 112 L.
T. 7; 30 T. L. R. 644.
Wagstaff's Settled Estates, foll. in Johnson, In re.
In re, 78 L. J. Ch. 513; 84 L. J. Ch. :393 ; (1915)
(1909) 2 Cb. 201; 100 L. 1 Cb. 435; 112 L. T.
T. 955. 935; 59 S. .1. 333.
Walsh V. Alexander, 16 not foll. in Minister for
Commonwealth L. R. Lands v. Coote, 84 L.
293. J. P.C. 112: (1915) A.C.
583: 112 L. T. 1098.
MEWS' NOTER-UP FOE 1915.
19
Walsh V. Lonsdale, 52 L. dist. in Purchase v. Lich-
J. Ch. 2; 21 Ch. D. 9; field Brewery Co., 84
46 E. T. 858; 31 W. K. L. J. K.B. 742; (1915)
109. 1 K.B. 184; HI L. T.
1105.
Watkins v. Naval Colliery appl. in Pursell v.
Co., 81 L. J. K.B. 1056; Clement Talbot, Lirii.,
(1912) A.C. 693; 107 L. Ill L. T. 827; 79 J. P.
T. 321; 56 S. J. 719; 28 1.
T. L. R. 569.
Webb V. Oldfield, (1898) 1 CONS, and appl. in Wedg-
It. R. 446. " " - - -
Willesford v. Watson, 42
L. J. Ch. 447; L. R. 8
Ch. 473; 28 L. T. 428;
21 W. R. 350.
Williams v. Bosanquet, 1
Brod. & B. 238.
J. 73; 31 T. L. R. 43.
Webb V. Syme, 10 Com- disappr. in Syme v. Vic
wood, In re, 84 L. J. ii:iiii..,„„ „ vr,ric t tj
Ch. 10/ (191o) 1 Ch. Q Q R 7Sq- 10 T T 9^8
113; 112 L. T. 66; 59 S. "^ '^•"- ''^^' ^^ ^- '■• "**•
monwealth L. R. 482.
Wemyss Coal Co. v.
Symon, (1912) S. C.
1239; 49 Sc. L. R. 921.
Welton V. Saffery, 66 L.
J. Ch. 362; (1897) A.C.
299; 76 L. T. 505; 45 W.
R. 508; 4 Manson, 269.
Wenham, In re, 61 L. J.
Ch. 565; (1892) 3 Ch. 59;
67 L. T. 648; 40 W. R.
636.
West Coast Gold Fields,
In re, 74 L. J. Ch. 347;
(1905) 1 Ch. 597: 92 L.
T. 596; 53 W. R. 455;
12 Manson, 185; 21 T.
L. R. 375.
Western of Canada Oil,
Lands and Works, Co.
In re, 43 L. J. Ch. 184;
L. R. 17 Eq. 1.
toria Commissioner of
Taxes, 84 L. J. P.C.
39; (1914) A.C. 1013;
111 L. T. 1043; 30 T. L.
R. 689.
CONS, and appl. in Jibb
V. Chadwick i- Co., 84
L. J. K.B. 1241; (1915)
2 K.B. 94; 112 L. T.
878; (1915) W^C. & I.
Rep. 342; 31 T. L. R.
185.
OBS. in, FOLL. and appl. in
Hickman v. Kent or
Romney Marsh Sheep
Breeders' Association,
84 L. J. Ch. 688; (1915)
1 Ch. 881; 113 L. T.
159; 59 S. J. 478.
APPL. in Fleetwood and
District Electric Light,
&c. Co., In re, 84 L. J.
Ch. 374; (1915) 1 Ch.
486; 112 L. T. 1127;
(1915) H. B. R. 70; 59
S. J. 383; 31 T. L. R.
221.
DIST. in Peruvian Rail-
way Construction Co.,
In re, (1915) 2 Ch. 144;
59 S. J. 579; 31 T. L.
R. 464.
FOLL. in Globe Trust, In
re, 84 L. J. Ch. 903; 113
L. T. 80; 59 S. J. 529;
31 T. L. R. 280.
Williams v. Hunt, 74 L.
J. K.B. 364; (1905) 1
K.B. 512; 92 L. T. 192.
Willson V. Love, 65 L. J.
Q.B. 474; (1896) 1 Q.B.
626; 74 L. T. 580; 44 W.
R. 450.
Wolfenden v. Mason, 110
L. T. 31; 78 J. P. 13; 11
L. 6. R. 1243; 23 Cox
C.C. 722.
Woodman v. Pwllbach
Colliery Co., Ill L. T.
169 (subsequently
affirmed in H.L.. 84 L.
.1. K.B. 874; (1915) A.C.
634).
W'orsley, In re; Lambert,
ex parte, 70 L. J. K.B.
93; (1901) 1 K.B. 309;
84 L. T. 100; 49 W. R.
182; 8 Manson, 8.
APPL. in Hickman v. Kent
or Romney Marsh
Sheep Breeders' Asso-
ciation, 84 L. J. Ch.
688; (1915) 1 Ch. 881;
113 L. T. 159; 59 S. J.
478.
DIST. in Purchase v.
Lichfield Brewery Co.,
84 L. J. K.B. 742;
(1915) 1 K.B. 184; 111
L. T. 1105.
APPL. in Stephenson <fc
Co., In re, 84 L. J. Ch.
663; (1915) 1 Ch. 802;
113 L. T. 230; 59 S. J.
429; 31 T. L. R. 331.
DIST. in Bradshav) v.
McMullen, (1915) 2 Ir.
R. 187.
DIST. in Dunlop Pneu-
matic Tyre Co. V. New
Garage and Motor Co.,
83 L. J. K.B. 1574;
(1915) A.C. 79; 111 L.
T. 862; 30 T. L. R. 625.
DISC, in London County
Council V. Perry, 84 L.
J. K.B. 1518; (1915) 2
K.B. 193; 113 L. T. 85;
79 J. P. 312; 13 L. G.
R. 746; 31 T. L. R.
281.
FOLL. in Priest v. .Ilon-
chester Corporation, 84
L. J. K.B. 1734; 13 L.
G. R. 665.
APPL. in Clark, In re;
Pope, ex parte, 84 L.
J. K.B. 89; (1914) 3
K.B. 1095; 112 L. T.
873; (1915) H. B. R. 1 ;
59 8. J. 44.
Wood V. Odessa Water-
works Co., 58 L. J. Ch.
628; 42 Ch. D. 636; 37
W. R. 733; 1 Meg. 265.
DBS. in, FOLL. and appl. in
Hickman V. Kent or
Romney Marsh Sheep
Breeders' Association,
84 L. J. Ch. 688; (1915)
1 Ch. 881; 113 L. T.
159; 59 S. J. 478.
Wheatlev, In re, 54 L. J. U'PL. in Haryrore, In re,
Ch. 201; 27 Ch. D. 606; 84 L. J. Ch. 484; (1915)
51 L. T. 681. 1 Ch. 398; 112 L. T.
1062; 59 S. J. 364.
Wheldale v. Partridge, 5 cons. and dist. in
Ves. 388; 8 Ves. 227. Gresham Life Assur-
ance Society V. Crow-
thcr, 84 L. J. Ch. 312;
(1915) 1 Ch. 214; 111 L.
T. 887; .59 -S. J. 103.
Whitelev, Lim. v. Burns, disc, in London County
77 L. ".1. K.B. 467; (1908) Council V. Perry. 84 L.
-- -- - ~ J K.B. L518; (1915) 2
K.B. 193 ; 113 L. T. 85;
79 .1. P. .312: 13 L. G.
R. 746; 31 T. L. R.
281.
I K.B. 705; 98 L. T.
836; 72 .1. P. 127; 24 T.
L. R. 319.
Wilford's Estate, In re;
Taylor v. Taylor, 48 L.
J. Ch. 243; 11 Ch. D.
267; 27 W. R. 455.
Wood V. Ledbitter, 14 L.
J. Ex. 161; 13 M. & W.
838.
York, In ro ; .\tkinson v.
Powell. 56 L. J. Ch.
552: 36 Ch. D. 233; 56 L.
T. 704; 35 W. R. 609.
FOLL. in ^yalker v. Gas-
kill, 83 L. J. P. 152;
(1914) P. 192; 111 L. T.
941; 59 S. J. 45; 30 T.
L. R. 637.
disc, in Hurst v. Picture
Theatres, Lim., 83 L.
J. K.B. 18:J7: (1915) 1
K.B. 1: 111 L. T. 972;
58 S. J. 739; 30 T. L.
R. 642.
DIST. in Hay, In re;
Stanley Gibbons, Lim.
V. Hail. 84 L. J. Ch.
821; (i915) 2 Ch. 198;
59 S. J. 680.
Whitting r Whitting, 53 remarked on in Bullock's Youiic f. White, 76 J. P.
o T 100 H'i(! Trusts. In re, 84 14; 28 T. L. R. 87.
■ L. .1. Ch. 463: (1015) 1
Ch. 493: 112 L. T.
1119; 59 S. J. 441.
DISAPPR. in Hampton v.
Glamorgan County
Council. 84 L. J. K.B.
1506; 113 L. T. 112; 13
L. G. R. 819.
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