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be difficult for any person in this country to set up ignorance of
A correspondent has pointed out that a very usual form of
so long as the war lasts (and probably for a reasonable time
Another correspondent has been troubled with the difficulty
Perhaps some confusion is introduced into the subject by the cases which dwell on the difference between a duty imposed by law and a duty imposed by contract. These cases usually lay
stress on the binding effect of a duty imposed by contract, an as they have to insist on the distinction between legal duties and contractual duties, they often contain broad statements to the effect that impossibility of performance does not discharge the party from the consequences of an unconditional promise. But if some of these cases confuse the subject in hand, others elucidate the point we have made above-viz., that warranty lies at the root of the cases where conditional promises to do impossible things give rights in damages. Thus we may point especially to the dicta of Lord Cairns in River Wear Commissioners v. Adamson (37 L. T. Rep. 543, at p. 545; 2 App. Cas. 743, at p. 750): "If a duty is cast upon an individual by common law," said his Lordship, "the act of God will excuse him from the performance of that duty. No man is compelled to do that which is impossible. It is a duty of a carrier to deliver safely the goods intrusted to his care, but if in carrying them with proper care they are destroyed by lightning or swept away by a flood, he is excused, because the safe delivery has by the act of God become impossible. If, however, a man contracts that he will be liable for the damage occasioned by a particular state of circumstances, I know of no reason why a man should not be liable for the damage occasioned by that state of circumstances whether the state of circumstances is brought about by the act of man or by the act of God. There is nothing impossible in that which, on such an hypothesis, he has contracted to do-namely, to be liable for the damages." We have cited his Lordship's remarks at some length, because they illustrate the whole underlying principle. If a man promises to do a thing, that may or may not, according to the terms of his promise and the general circumstances of the case, amount to a promise to do the thing or to pay damages for that thing not being done.
Another correspondent has called our attention to a point on the exceedingly clumsy drafting adopted in the Courts (Emergency Powers) Act 1914, and especially in the first subsection of sect. 1 of the Act. This sub-section has already been the subject of much controversy. As we pointed out in our sixth article, the whole form of the Act is unfortunate. It would have been much better to have divided up the provisions of the two sections of which the Act consists into some ten or fifteen separate sections. The first section is divided into numerous sub-sections. The first sub-section is divided into paragraphs, of which there are apparently three. The first paragraph is divided into sub-paragraphs lettered (a) and (b). The sub-paragraphs have been designated "paragraphs " throughout the rules made under the Act. 'Par. (a) and par. (b)” have already attained some notoriety. The system of drafting adopted in the Act is the same as that adopted in many recent statutes. This is particularly the case as regards the first sub-section, which in form closely resembles some of the most involved sections of the Finance (1909-10) Act 1910--a form which it is hoped will soon be abandoned by the Parliamentary draftsman.
The point which our correspondent makes is on the reading of sub-sect. 1 of sect. 1. Although we cannot agree with him that this sub-section is of practically no effect, his criticism illustrates the difficulties of construction resulting from the form of drafting adopted. Omitting surplus words, the sub-section runs as follows: "From and after the passing of the Act no person shall (a) proceed to execution on or otherwise to the enforcement of any judgment or order of any court. . . for the repayment or recovery of a sum of money to which this sub-section applies, except after such application to such court and such notice as may be provided for by rules or directions under the Act; or (b) levy any distress, take, resume, or enter into possession of any property, exercise any right of re entry, foreclose, realise any security .. forfeit any deposit or enforce the lapse of any policy of insurance to which this sub-section applies, for the purpose of enforcing the payment or recovery of any sum of money to which this sub-section applies except after
such application to such court and such notice as may be provided
stating that the sub-section applies to life or endowment policies for an amount not exceeding £25.
Our correspondent asks: to what sums of money does the subsection apply -a somewhat natural question. The answer appears to us to be this: that the sub-section applies to all sums of money other than those expressly or inferentially excepted. Broadly speaking, the expressly excepted sums of money are those due and payable in pursuance of a contract made after the commencement of the war. So the Act does not apply to sums of money due on contracts made since the war commenced. But this does not dispose of all the difficulties of construction. Does the sub-section apply to rent? Apparently it does. But whether it applies to rent arising in respect of a contract made after, as well as before, the war commenced seems a very difficult question. Here we pass over the question whether, apart from an express covenant for payment of rent, rent can be said to be payable in pursuance of any contract. What we have to deal with is the extraordinary wording of the paragraph which introduces the express exception. The sub-section is not to apply to
of money (other than rent not being rent at, or exceeding, £50 per annum) due and payable in pursuance of a contract made after the beginning of the 4th Aug. 1914." It appears to us that this means that the sub-section applies to rent less than £50 per annum, due and payable in pursuance of a contract made on or after the 4th Aug. 1914.
The same correspondent very properly points out that in our fifth article (137 L. T. Jour. 537) we stated that the sub section did not apply to life or endowment policies for an amount not exceeding £25, whereas the sub-section expressly states that the sub-section applies to such policies. It seems to be an open question whether the sub-section applies to other policies. On the ordinary rules of construction it would seem, however, that policies other than those expressly mentioned are not within the sub-section.
(To be emcluded.)
GIFTS TO EXECUTORS.
THE Court of Appeal, differing from the court below, have held that where a testatrix in a home-drawn will declared that the residue of her property (if any) should be at the discretion of her executor and at his own disposal, the executor took the residue beneficially (Re Howell, noted ante, p. 10). Certainly "at his own disposal" would appear to be the same as for his own benefit," but there seems to have grown up a judicial prejudice against executors taking the residue for themselves, unless there is an express gift to them. Thus in Fenton v. Nevin (31 L. Rep.
Ir. 478) there was no direct gift to the executors, but the testator in his will said: "I will my executors shall apply the overplus, if any, as they think fit." In the court of first instance it was held that the executors had a beneficial interest, but the Irish Court of Appeal reversed that decision and held that the executors took merely as trustees, and, as no trusts were declared, they could hold only for the next of kin.
There is really no presumption either in law or in fact against a testator wishing to benefit his executor. Probably the executor is a great friend or a person in whom the testator has great confidence, and everyone knows the convenience of the same person bing at once executor and residuary legatee. When doubtful cases arise, the executor has not got to think of whether his beneficiaries will call him to account for admitting this claim or compromising that debt, as he is himself the beneficiary.
It has already been decided in several cases that a direction that property should be at a person's disposal is a gift of the property and not merely the creation of a In one of such cases-namely, Nowlan v. power over it. Walsh (17 L. T. Rep. O. S. 292; 4 De G. & Sm. 584)where the words were, The remainder of my property I leave at the disposal of my wife if she remains my widow," Vice-Chancellor Knight-Bruce said: "There is nothing in the word 'disposal' essentially indicating power rather than property independently of the context." It was held that the
residue had been left to the wife subject to its being taken from her if she should marry.
In Re Maxwell's Will (24 Beav. 246) the testator said: "I give and bequeath a moiety of the said capital stock to be disposed of as my said son shall think proper." The Master of the Rolls commenced his judgment thus: "This is an absolute gift to the It is proper to consider the latter words by themselves without reference to anything that precedes them. Then I have these words simply: I give half of the fund to be disposed of as my son shall think proper'; what is their natural meaning? It could not be reasonably argued that they are anything else than an absolute gift of the property. A direction that the fund should be disposed of as his son should think proper' would simply be a gift to him, his executors, administrators, and assigns."
In Re Howell, therefore, the gift would have been clear if it had been to a named person, and the decision of the Court of Appeal shows that the gift being to "my executor" does not alter the rule, at any rate, if the property is to be at his own disposal. If the property is to be held by the executor on 1 trust expressed in or implied from the words of the will, and the trust does not exhaust the whole of the property, then the creation of the trust is considered to be the sole object of the gift, and the executor or executors hold what remains on a trust, and, as there are no cestuis que trust shown in the will, the next of kin are held to be the beneficiaries: (see speech of Lord Chancellor Cairns in Williams v. Arkle, 33 L. T. Rep. 187; L. Rep. 7 H. L. Cas. 606). Again, there is a presumption of a trust where there is a gift to more than one executor, as in Fenton v. Nevin (sup.), where the will ran "I will my executors shall apply," &c. In respect of these words Lord Justice Fitzgibbon said: "The residue is to be applied by the executors jointly. If they differed as to its application-for example, if one thought fit to keep it for himself and the other wished it to go in charity, what was to happen? Their joint position is more in keeping with trusteeship than with ownership.
really meant was, that whoever proved his will and became his executor should, in that capacity, and not as personal or beneficial owner, distribute his property to worthy objects." The Irish Court of Appeal treated the words of the will before them as creating a trust or power of distribution, rather than conferring a gift. In such cases the testator would seem to be imposing on his executors a trust to complete his testamentary dispositions, and accordingly, being in a fiduciary position, they must exclude themselves from any benefit under it. It must not be supposed that every gift to an executor as such must be held on trust, for a general or specific legacy given by a testator to his executors, whether under the title of executors or not, is primâ facie given to them in that character, and therefore they are not entitled to the legacies if they decline or are incapable of undertaking the office" (Theobald on Wills, 7th edit., p. 347). In other words, they take their legacies because, and only because, they are executors, and yet they are allowed to keep them for their own use and benefit. There was in Re Howell only one executor, and there was reason to believe from the previous phraseology of the will that George Buckingham, and not any person who might prove the will, was intended. It was, however, urged on behalf of the next of kin that if another executor had been appointed by a codicil there would have been great difficulty in saying which executor would take. The difficulty may be admitted, but the contest would have been between the two executors, and not between an executor and the next of kin. It must be remembered that the next of kin only came in on account of there being an intestacy, whole or partial, and as Lord Shaw has expressed it in Lightfoot v. Maybery (111 L. T. Rep 300, at p. 305; (1914) A. C. 782, at p. 802): The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills." It was suggested that the testatrix might have simply given the residue to George Buckingham, but, as Lord Justice Swinfen Eady pointed out, in the majority of wills which come before the court for construction the testators have not employed simple language.
To many persons the making of a will is a great ordeal, so they like to be wordy and grandiloquent.
posed of e Rolls
t to the
I have Dosed of
hat the proper rs, and
NOTEWORTHY DECISIONS OF THE JUDICIAL
(Continued from p. 586,)
PASSING now to the cases relating to TRADE MARKS, we find a
On the subject of TRADE UNIONS there seem to be only two
Dallimore v. Williams (58 Sol. Jour. 470) is also a decision of the Court of Appeal arising out of the so-called "lightning strike of bandsmen. The plaintiff, a bandmaster, sued a trade union official for inducing performers to strike through threats of penalisation and by posting pickets. The Court of Appeal have held that on the facts it could be said that the acts complained of were done in furtherance of a trade dispute or in contemplation of it, and the defendants obtained judgment.
Among the cases decided during the past judicial year of special significance to TRUSTEES and their legal advisers, we have already alluded to Re Allsop (ubi sup.) when dealing with he subject-matter of limitations. That case showed that the Judicial Trustee Act 1896 could be invoked where a breach of trust has eventuated from a mistaken piece of legal advice, and that its indulgence is not confined to cases of executive or administrative blunders. That case may usefully be contrasted with another case where the same statute was invoked in vainRe Brookes; Brookes v. Taylor (110 L. T. Rep. 691; (1914) W. N. 49). There the surviving trustee of a will held money in trust in two moieties. It was invested in two mortgages. He handed over one mortgage to a beneficiary. The other mortgage turned out worthless, and the person who looked to it for his moiety sought to make the trustee liable for a breach of trust in practically handing over the entire estate to those entitled to the first moiety. The argument was that before dividing the trust the defendant should have obtained some sort of valuation of the suspected mortgage. Mr. Justice Astbury held that he was liable for his lack of caution in making a distribution without inquiring into the value of the securities, and the learned judge declined to grant any relief under the Judicial Trustees Act 1896. In Re
D'Epinoix's Settlement; D'Epinoiz v. Fettes (110 L. T. Rep. 808; (1914) 1 Ch. 890) the question of inquiring into the stability of mortgages cropped up again amid a different setting. No question arose as to the bona fides of trustees, but a tenant for life was nervous as to an investment, and by an originating summons sought to have inquiries ordered as to the mortgages with a view to their being called in if necessary. The settlement concerned afforded wide powers to and discretions in the trustees, but the investments were in property the value of which was regarded as diminishing. The trustees objected to the inquiries, regarding the matter as one for their discretion. Mr. Justice Warrington could see no good reason for their objection, and he ordered the inquiries to be made. There are two Irish cases of considerable value to English practitioners and touching upon two points of general interest. Re Condrin; Colohan v. Condrin (1914, 1 Ir. Rep. 89) was a case where a man placed a sum on deposit with hie bankers in the names of himself, his wife, and brother. He told his wife that his intention in making the deposit was that she and his brother should have the money so deposited in the event of anything happening to him. His will, shortly after this made, gave all his property to his wife and and his brother for their lives, and after that for the benefit of a church at Bray. The Master of the Rolls held that the deposit made the wife and brother joint tenants at law. It was held as well settled nowadays that if a deposit is made with a bank by a husband of his own money in the names of himself and his wife, there is a presumption that it is intended as an advancement for the wife in the event of her surviving her husband. The introduction of the brother's name was not deemed to be any interference with this presumption. The brother, however, bing a stranger, and there being no evidence of an express intention to benefit him, it was held that he was introduced as a trustee for the person enjoying the beneficial interest. Whatever the probabilities in this case the court was not led aside by such, but fastened on the legal presumption of advancement, which could only be rebutted by concise evidence of which none was adduced. Re Ardagh (1914, 1 Ir. Rep. 5, shows that where the English Public Trustee is sole trustee of a settlement by the person nominated for the purpose of appointing trustees, which settlement authorised a sole trustee to receive capital coming under the Settled Land Acts, the residue of purchase moneys of Irish lands subject to the settlement can be paid out to the English Public Trustee. The Irish court, however, declined to express a decided opinion as to whether it had jurisdiction to appoint the English Public Trustee as trustee of a settlement quâ Public Trustee, for that might be treating the Public Trustee Act 1906 as applying to Ireland. Re British Red Cross Balkan Fund; British Red Cross Society v. Johnson and others (noted 137 L. T. Jour. 343) is perhaps of special value as laying down what the legal rights are of persons who subscribe to public appeals for some special object and more money is remitted than is required. Here Mr. Justice Astbury held that the appeal had reference to the war against Turkey, and could not be used for relieving distress in the war between the allies. He ordered so much of the balance in the society's hands to be returned to subscribers in the proportion which the total expended bore to the total subscribed.
The past judicial year has not been as prolific as some previous periods in cases touching on the varied aspects of the relationship between VENDOR AND PURCHASER. There are, in fact, quite few cases worthy of note in a general review. Eastwood v. Ashton (109 L. T. Rep. 784; (1914) 1 Ch. 68), decided by the Court of Appeal, was a case on the construction of a conveyance. The conditions had negatived compensation for misdescription and the purchaser resold to the plaintiff. The property as described in the conveyance was B. H. Farm, the tenants in occupation being named and the measurements being accurate. There was, however, an allusion to the plan wherein the land was coloured red. By inadvertence a strip of land had been included in the red portion of the plan which had been acquired by adjoining owners by adverse possession. Mr. Justice Sargant had decided that this strip was included in the parcels conveyed, that the purchaser could call for compensation under the covenants for title implied by the conveyance as beneficial owner, and he assessed the damages at £315, being the difference value between the land purporting to be conveyed and the land which actually passed. The Court of Appeal have overruled this, holding that the strip was not included in the parcels, which sufficiently described them by their area and occupation, and that the reference to the plan was falsa demonstratio and ought to be rejected. The incidence of an improvement charge was the subject-matter of Re Farrer and Gilbert's Contract (110 L. T. Rep. 23; (1914) 1 Ch. 125). The contract for the purchase of land adjoining Kingsway was dated Sept. 1912, and the purchase was to be completed in Sept. 1915. The London County Council (Improvements) Act 1899, s. 61, imposed an improvement rentcharge should
be imposed on the land. The section is rather curiously worded, for it recites that the scheme "will or may" permanently increase the value of adjoining property, and that it was reasonable that adjoining property should be liable to have" an improvement charge imposed on it. In 1900 the vendor's predecessor in title received a notice that a charge was proposed upon his land. The London County Council issued a certificate as to the completion of the improvement in 1910, and in Jan. 1913 the purchaser accepted the title and entered into possession as a tenant at will of the vendor. In April 1913 a charge of £30 was notified by the London County Council to vendor and purchaser. The question was one of incidence and the date of the charge. Mr. Justice Sargant held that an improvement rentcharge would not be effective as a charge on the land until after the resolution of the London County Council approving the assess. ment, notwithstanding that the improvement work had itself been completed. The learned judge declared here that the purchaser was not entitled to a conveyance fee from the charge, but the vendor, without admitting liability, was good enough to consent to pay the charge up to the date of completion.
There have been two or three cases of capital importan e before the House of Lords in reference to WATER SUPPLY. Bristol Guardians v. Bristol Waterworks (110 L. T. Rep. 846; (1914) A. C. 379) raised the difficult question whether the appellants as owners and occupiers of workhouses in Bristol could claim a water supply for domestic purposes. For many years they had paid by meter for domestic and non-domestic purposes, paying an agreed price of 1s. per 1000 gallons. In 1910 the guardians demanded to be furnished with water for the domestic use of the officers and inmates, to be paid for on the basis of the rental value of the premises. Mr. Justice Eve held that the company's special Act limited the right to demand water for domestic purposes to private dwelling-houses, and that the workhouse was not a private dwelling-house. The Court of Appeal affirmed this. The House of Lords agreed, and remarked that, although in construing private Acts the rule is to construe them strictly against promoters and liberally in favour of the public, nevertheless a court of law is not entitled to make laws however strongly it may feel that Parliament has overlooked some necessary provisions or has been overreached by the promoter of a private Bill. The ratepayers were in this case at the mercy of the company, for there was nothing to fix a rate as regards dwelling-houses which were not private The House of Lords saw no means beyond legislative means for preventing what it described as the very serious matter for Bristol of a company being free to charge what it liked or to refuse to supply for necessary domestic consumption except to private dwelling-house or a part thereof. Metropolitan Water Board v. Avery (109 L. T. Rep. 762; (1914) A. C. 118) again turned on domestic purposes. The appellants sued the occupier of a public-house to recover 5s. for two quarters' rates for water alleged to have been used for non-domestic purposes. The house was rated as usual in respect of a supply for domestic purposes, but a catering business was carried on, and the water used for cleaning and scrubbing was alleged by the appellants to be used for non domestic purposes and in fact to be used for trade purposes. The County Court judge supported this contention; the Divisional Court reversed it, and were supported in so doing by the Court of Appeal. The House of Lords agreed with the Court of Appeal, and Lord Dunedin laid it down that it is not possible to settle the criterion whereby it is fixed whether the supply of wa er is for a trade, manufacture, or business merely by showing that a trade is carried on in the premises where the water is supplied, nor can it be said that persons who use the water on the premises only go there for the purposes of a trade being carried on. Again, the House of Lords objected to the statement that every use of water, however domestic in its nature, that appears as a step, however insignificant, in a trade operation is a use of water for a trade. That view, Lord Dunedin showed, would lead to the conclusion that n retail shopkeeper could use a damp sponge to clean dusty goods without becoming liable to a trade rate for the water he had thus consumed. The true test was held to be that laid down by Lord Justice Buckley in the Court of Appeal—viz. : "Not whether the water is consumed or used in the course of the trade, but whether the use of the water is in its nature domestic.' Lord Dunedin pointed out that this is simple of application, for purposes truly domestic cannot be ampl fied, and when the consumption on these heads is large it is invariably attended by an increase of rateable value which entails an increased water rate. Hadham Rural District Council v. Crallan (111 L. T. Rep. 154; (1914) 2 Ch. 138) is a decision of Mr. Justice Neville where a company had agreed to supply a farmhouse and farm buildings with water. The farmhouse in course of time was altered in character and the owner claimed a supply on the above terms for garage purposes. Mr. Justice Neville held that the covenant had been discharged through the alteration in the character of the farmhouse, but not discharged as regards the farm
buildings. The owner was not allowed to use water for his cars or for building purposes.
It is, of course, a well-recognised feature of cases relating to the construction of WILLS that they have to be treated with an unusual measure of caution, for the intention is the main point to consider, and a meticulous distinction often decides the result. Accordingly the cases to which we refer have to be those which seem to offer some broad grounds of applicability, and their total number bears no resemblance to the very large number of decisions upon wills which are to be found by reference to contemporaneous reports nuring the past year. Mr. Justice Ross in Ellard v. Phelan (1914, 1 Ir. Rep. 76) illustrated once again what bequests can be considered void as given to an illegal purpose though benevolent in its nature. There the gift was to the superior for the time beiug of a Cistercian monastery for its use and benefit and for the works of charity carried on by it, and this was held to be void as given to an illegal community. Mr. Justice Joyce in Re Erasmus Smith; Johnson v. Bright-Smith (110 L. T. Rep. 898; (1914) 1 Ch. 937) was another case with which to contrast that above noted. There the gift was one of all the testator's realty and personalty to and to the use of the executors on trust to convert it, to pay the funeral and testamentary expenses and debts, and to hold the residue "in trust for the society known as the Franciscan Friars of Clevedon absolutely. The receipt of the father guardian or other proper officer to be a sufficient discharge." It was proved that there was at Clevedon an unincorporated community of six persons who were pledged by monastic vows and who designated themselves the Franciscan Friars of Clevedon. The question was whether this gift was valid, and reference was made to the Roman Catholic Relief Act 1829, s. 7. Mr. Justice Joyce held that this Act had never been put into force and that it had been and would doubtless remain a dead let er. The learned judge held further that the courts had never recognised it, and he declined to listen to any argument based on its policy. In this case the gift was held to be made to the several members of the order and to be valid. Bequests of "business and plant" and such-like gifts, intended, no doubt, to have some definite meaning, are frequently most difficult to define in scope. Re Hawkins; Hawkins v. Argent (109 L. T. Rep. 969) was a case where the testator bequeathed his business and plant to X. and Y. and then added: "I will that they pay Miss Z. £10 per week during her life.' The meaning of this was argued before Mr. Justice Astbury, who held that the beques covered a house, a bank balance, and book debts, and that the legatees, though not personally liable, were bound to pay the £10 per week out of the assets. Re Sing-Sing v. Mills (1914) W. N. 90) was a decision of Mr. Justice Eve to which reference will have in future to be made in those cases where doubt arises as to the meaning to be attached to the word 'survive," whether, e.g., it is to be regarded as tantamount to "outlive" or to "live after" someone or some event. Here the gift was to children of daughters, such children as being sons should survive the testator and attain twenty-one or die under twenty-one leaving issue who survived him, or being daughters should survive him and attain twenty-one or marry under that age. Mr. Justice Eve here looked to the age of the testator at the date of the will (sixty-three) and to the fact that he had four unmarried daughters whose ages ranged from twenty-seven to forty. Under these circumstances Mr. Justice Eve concluded that daughters' children who attained twenty-one, though born after the testator's death, "su vived" him, and consequently here we 'find another authority in which "survive" is given the meaning of "living after" rather than "outliving." Re Bell; Wright v. Scrivener (1914) W. N. 89) affords some elucidation of the meaning which can be attached to the word "manservant." The gift was one to "my manservant who shall be in my service at my death." At the date of the will the testator had a valet and also a chauffeur. The former had left his service at the time of his death, but the latter was still in his employ. The chauffeur was when the testator died the only man in his service, and over and above driving he was wont at times to do other small jobs such as brushing his master's clothes and carrying his guns. Mr. Justice Warrington rather seemed to hint that had the valet been still employed he might have been disposed to take a different view, but on the facts as they were he held that the chauffeur was entitled without having recourse to the small extra services performed outside his duties as chauffeur. Re Lawson; Wardley v. Bringloe (110 L. T. Rep. 573; (1914) W. N. 90) is a decision to mention conveniently at this point, for there Mr. Justice Eve had to consider a bequest to "each of my domestic servants" who came within certain conditions as to length of service. Amongst the claimants was a male nurse and masseur. He had been directly engaged by the testator, but after some time the latter's mental condition became such that a receiver had to be appointed under the Lunacy Act 1890, s. 116. The receiver still continued the engagement at the same salary for a certain period each day. The attendant did not sleep in the house, but took some meals in it. Part of the time he was com
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There are few statutes more prolific of judicial decisions than that relating to WORKMEN'S COMPENSATION, and during the past year of sittings there have been a long series of cases ranging over the whole field, which seems never to lose its possibilities in the way of dispute. In Huscroft v. Bennett (110 L. T Rep. 494) the facts were rather peculiar, for the workman, while engaged to do work which occupied only part of his time, was given by this employer special information which enabled him to pick up jobs from other persons. He was injured whilst so serving, and, on his claiming compensation against his regular employer, it was held by the Court of Appeal that he was an independent contractor, and was not under the control of his regular employer or temporarily lent to anyone else, and that the accident was not one which arose out of or in the course of his employment. Another of those cases where an accident happens while the victim is drunk cropped up in Murphy and Sandy v. Cooney (1914, 2 Ir. Rep. 76), an Irish Court of Appeal case, where a mate of a steamer cam aboard drunk and went to take his spell at the wheel. The master ordered him below as unfit for duty. He fell down a ladder shortly afterwards and was killed. A County Court judge held that the accident arose out of and in the course of the employment, but that it was attributable to drink. Inasmuch as death ensued he held that compensation was payable, the right to it not being barred. With this view the Court of Appeal have quarrei ed, holding that there was evidence to show that the accident arose out of the employment. A Scottish case may also be mentioned where the Court of Session in Guthrie v. Kinghorn (1913, S. C. 1155) held that an arbitrator could not find that an accident arose out of the employment when a carter upon his employers' premises was hurt by a sheet of metal being blown down from an adjoining building during the progress of a storm. Another of those cases where a sailor is drowned whilst returning to his ship is to be found in Parker v Owners of Steamship Black Rock (110 L. T. Rep. 520; (1914) 2 K. B. 39). A vessel had been moved whilst the man had gone ashore on leave for provisions. On his return, the night being dark and rough, he was drowned. The widow argued that he had been employed on ship's business, and his contract of service contained a phrase whereby the master agreed to supply the men with provisions according to a specified scale, but these words were struck out and in place thereof the words had been written in, "Crew to provide their own provisions." The Court of Appeal, agreeing with the County Court judge, held that the sailor in going ashore was doing so for his own purposes and could not be regarded as engaged in ship's business. The House of Lords decision in Plumb v Cobden Flour Mills Company Limited (109 L. T. Rep. 759; (1914) A. C. 62) is highly important. The workman there had devised an ingeniously simple expedient for avoiding the manual labour entailed in stacking sacks by hand as he had been expected to do. Unfortunately an accident occurred, the result of which
A SHIP, though still in existence, may have suffered such