Orders on Applications. 8. Where an order is made on an application under these Rules, the order shall be prepared and sealed by the registrar and delivered to the bailiff, who shall within twenty-four hours send the same, by post or otherwise, to the custodian and to the party against whom the order is made; but it shall not be necessary for the party in whose favour it is made to prove, previously to taking proceedings thereon, that it was posted or reached the opposite party. Revocation or Variation of Orders. 9. Any order made under these Rules may, should subsequent circumstances render it just so to do, be suspended, discharged or otherwise varied or altered on interlocutory application to the judge of the court in which the order is made. Fees. 10. The following fee shall be payable under Schedule B, Part I., of the Treasury Order regulating Fees in the County Courts, on proceedings under these Rules, viz. : On any notice of application, 2s. 6d. The fee prescribed by this Rule shall include drawing, sealing, and issuing the order, and the fee prescribed by paragraph 12 of Schedule B, Part I., of the Fees Order shall not be taken; but this Rule shall not affect the fees payable on orders for substituted service. The judge may remit or excuse in whole or in part any fees paid or payable under this Rule. Proceedings on Applications. 11. The proceedings on any application under these Rules shall, so far as not expressly provided for by these Rules, be conducted in accordance with the ordinary practice of the court in dealing with similar matters. Costs. 12. (1) The costs of any application under these Rules shall be in the discretion of the judge. (2) The judge may either fix the amount of such costs, or allow them on the scale applicable to an interlocutory application in the action in which the application is made; provided that Column B of the scale shall apply to all cases above twenty pounds to the exclusion of Column Č. (3) Where the amount of the subject-matter does not exceed ten pounds, there may be allowed for all work done by solicitor in relation to the application If the amount exceeds £2, but does not exceed £5, 3s. If the amount exceeds £5, but does not exceed £10, 5s. (4) The judge may direct that any costs allowed shall be payable forthwith, or that they shall be included in the sum recovered under the judgment or order. The 15th day of February, 1915. (Signed) HALDANE, C. THE COURTS (EMERGENCY POWERS) ACT, 1914. THE COUNTY COURTS (EMERGENCY POWERS) RULES, 1915, DATED FEBRUARY 15TH, 1915, MADE BY THE LORD CHANCELLOR FOR COUNTY COURTS UNDER THE COURTS (EMERGENCY POWERS) ACT, 1914 (4 & 5 GEO. 5, c. 78). Preliminary. The following rules under the Courts (Emergency Powers) Act, 1914, shall apply to the County Courts and to the City of London Court, which shall for the purposes of these rules be deemed to be a County Court. These Rules may be cited as the County Courts (Emergency Powers) Rules, 1915, or each rule may be cited as if it had been one of the County Courts (Emergency Powers) Rules, 1914 (herein called the Emergency Rules), and had been numbered therein by the number placed in the margin opposite such rule. These Rules should be read and construed as if they were contained in the Emergency Rules, and expressions used herein shall have the same meaning as the like expressions used in those Rules; and any rule referred to by number in these Rules shall be construed as referring to the rule so numbered in the Emergency Rules. These Rules shall come into operation on the 16th day of February, 1915, and shall apply to all proceedings pending under the Emergency Rules on that day. Rules 3 and 4 of the Emergency Rules, and Form 2 in the Appendix to the said rules, are hereby annulled, and the following rules shall stand in lieu thereof : Judgment Summons and Order of Commitment. 1.—(1) A judgment summons may be issued as heretofore, and no application under the Act for the purpose of obtaining leave to issue such summons shall be required. (1) Paragraph 1 of Rule 2 of the principal Rules shall not apply to any case in which a creditor desires to issue a judgment summons under Order XXV., Rule 29 or Rule 30, of the County Court Rules in a court other than the court in which the judg ment or order was obtained. 2 Where an order of commitment has been made either before or after the passing of the Act, the following provisions shall apply: (i) Unless the execution of the order of commitment has been suspended for twenty-eight days or longer, pursuant to Order XXV., Rule 46, paragraph 2, of the County Court Rules, the order may be issued without leave at any time within forty-two days from the date on which the order was made, or, if the order was made before the date when this Rule comes into operation, at any time within forty-two days from that date: (ii) If the execution of the order of commitment has not been suspended, or has been suspended for less than twentyeight days, and in either case more than forty-two days have elapsed since the day on which the order was made, or, if the order was made before the date when this Rule comes into operation, since the day on which this Rule comes into operation, the order shall not be issued without leave of the judge granted on application made on notice served in accordance with Rule 2, paragraph (ii) : (iii) If the execution of the order of commitment has been suspended for twenty-eight days or longer, the order shall not be issued without leave of the judge granted on application made on notice served in accordance with Rule 2, paragraph (ii). Rule 25 of the Emergency Rules is hereby annulled, and the following rule shall stand in lieu thereof : Rule 5, paragraph 2 Rule 7, paragraph 2; Rule 11; 6d. in the £ or part of £ on the amount of the subject matter of the application or summons, not exceeding 2s. 6d. Provided that where an order of commitment has before the coming into operation of this Rule been made on the hearing of a judgment summons served with a notice annexed thereto in accordance with Rule 3, paragraph 1, of the Emergency Rules (which is annulled by these rules), no fee shall be payable on a notice of application under Rule 4 (Rule 2 of these Rules), paragraph (iii), for leave to issue the order. The fee on a notice of application or summons shall include drawing, sealing, and issuing the order (if any), other than an order for the appointment of a receiver, and the fee prescribed by paragraph 12 of Schedule B, Part I., of the Fees Order shall not be taken. fees The court may remit or excuse in whole or in part any paid or payable under this rule. The 15th day of February, 1915 (Signed) HALDANE, C. We, the undersigned, two of the Commissioners of His Majesty's Treasury, do hereby, with the consent of the Lord Chancellor, order that the several fees specified in Rule 3 of the foregoing rules shall be taken on the proceedings therein mentioned in lieu of all other fees on the proceedings therein (Signed) set forth. WALTER R. REA. CECIL BECK. (Signed) HALDANE, C. I concur in the above order as to fees. 3 (5). No application under the Act is required for the issuing of a Judgment Summons. 3 (6). Any such notice as in sub-rule (2) of this Rule mentioned shall be in the form or to the effect set out in Form Ia in the Schedule hereto, and the provisions of subrule (3) and sub rule (4) shall apply to such notice. And the procedure indicated by such notice is hereby authorised for the purposes of Rule 3. 2. The following Rule shall be added:- 15a. In any case where any debtor or other party to any proceedings under the Rules is absent or abroad or cannot be found or it is uncertain whether he is alive or dead or it is otherwise difficult to serve him the Court may proceed on such notice or intimation of the proceedings whether to any other person or by advertisement or otherwise as the Court shall in its absolute discretion think fit. And the provisions of this Rule shall be in addition to and by way of extension and enlargement of the ordinary powers and practice of the Court as to proceeding ex parte and as to substituted (Signed) HALDANE, C. service. The 15th of February, 1915. The following stock is authorised for the investment of cash under the control or subject to the order of the Court, in addition to the stocks, funds and securities already authorised by Order XXII., Rule 17, namely: Inscribed Stock forming part of the War Loan, 1925-1928. Copies may be obtained on application at the Lord Chancellor's Office, House of Lords, S.W. COURT OF APPEAL AND HIGH COURT OF JUSTICE (CHANCERY DIVISION).-HILARY SITTINGS 1915. ROTA OF REGISTRARS IN ATTENDANCE FOR THE WEEK ENDING SCHEDULE. Form Ia. Form of Notice under Paragraph (a). (Title of Proceedings). Take Notice, that on the occasion of the making of any judgment or order herein for the payment or recovery of a sum of money I (we) intend to make, without any further notice or on such notice only (if any) as may be rendered necessary by the counter-notice hereinafter mentioned, an application to the Court under the Courts (Emergency Powers) Act, 1914, for leave of the Court to proceed to execution on or otherwise for the enforcement of any such judgment or order. If you desire to defend the action you should enter an appearance in the action as directed by the Writ of Summons. But if, while not desiring to defend the action, you wish to avail yourself of the protection afforded by the Courts (Emergency Powers) Act, 1914, you should, instead of entering an appearance, fill up sign and detach the subjoined form of counter-notice stating your desire to avail yourself of the said protection and giving a postal address at which notices may be sent to you, and should either file such counter-notice at the Central Office (Room No. 70 or 71) or send it by post to the Senior Clerk, Writ Department, Central Office, Royal Courts of Justice, so that in either case it may be received there within 8 days from the date hereof, or such other time as may be fixed for appearance. Should you fail to fill up sign and file or send by post as aforesaid the said counter-notice it will be assumed that you have no ground under the said Act for opposing the enforcement of any judgment or order obtained in the action, and the Court may give leave to enforce the same on an ex parte application and without any further notice. But should you fill up sign and file or send by post as aforesaid the said counter-notice there will be posted to you at the address stated in the counter-notice two days previously at least notice of any application that may be made for leave to enforce any judgment or order obtained in the action. GAZETTE, FEB. 12. To surrender at the High Court of Justice, in Bankruptcy. BATES, ALFRED (trading as Alfred Bates and Co.), Fleet-st, advertising agent. Feb. 10, C. W. BRADLEY AND CO., Fetter-la, printers. Feb. 9. F. E. BAILEY AND CO., Tulse-hill, motor garage proprietor. Feb. 8. SILBER, MARTIN ALBERT, Cadogan-sq, financier. Jan, 14. To surrender at their respective District Courts. BICKERTON, JAMES, Kidderminster, grocer. BLAKE, A., Barking, builders' merchant. Ct. Chelmsford. Feb. 10. Ct. Kidderminster. Feb. 8. BLISSETT, ERNEST WILLIAM, late Acomb, market gardener. Feb. 6. Ct. York. CARTWRIGHT, STANLEY BELTON (trading as S. B. Cartwright and Co.), Sydenham, fancy draper. Ct. Greenwich. Feb. 8. CROWE, ARNOLD MILTON, and BRENARD, ROBERT (trading as the Exchange Film Service), Bradford, film renters. Ct. Bradford. Feb. 9. DE ROBECK, HENRY EDWARD WILLIAM (BARON), Perran-ar-Worthal. Truro. Feb. 10. Ct. DIXON, GEORGE FREDERICK (trading as W. H. Dixon), Birmingham, coal merchant. Ct. Birmingham, Feb. 8. DRIFFILL, ARTHUR ROBERT, Cliffe-cum-Lund, joiner. Ct. York. Feb. 8. MAYES, CHARLES HARRIS, Tempsford, commission agent Feb. 8. Ct. Bedford. NEWMAN, JOSEPH CHARLES (trading as J. C. Newman and Co.), Totten- To surrender at their respective District Courts. BOND, JOSEPH PAUL, Lamphey, baker. Ct. Pembroke Dock. Feb. 13. CHANTLER, JOHN ARTHUR, Tunbridge Wells, grocer. Ct. Tunbridge Wells. Feb. 11. COOPER, ERNEST, West Smethwick, greengrocer. Ct. West Bromwich. Feb. 13. Ct. Exeter. CRABBE, HERBERT ERNEST, Newton Abbot, gentleman. Ct. Norwich. LEIGHTON, THOMAS, late Wyrley, boot repairer. Ct. Walsall. Feb. 10. FREDERICK Ct. Ct. Northallerton. Feb. 10. PARKER, JAMES ARTHUR, Batley, grocer. Ct. Dewsbury. Feb. 11. PLEASANCE, FIRMAN, Leeds, butcher. Ct. Leeds. Feb. 12. RADFORD, FRANK TIMON, Worcester, refreshment-house keeper. Worcester. Feb. 12. Ct. SADLER, PRISCILLA (trading as William Sadler), Newcastle-upon-Tyne, iron SHIPMAN, THOMAS THORNTON (trading as Thomas Shipman), Sherwood. ADJUDICATIONS. GAZETTE, FEB. 12. Feb. 10. Ct. Norwich. Feb. 9. ATHURTON, HARRY, Honingham, farmer. DRIFFILL, ARTHUR ROBERT, Cliffe-cum-Lund, joiner. Ct. York. Feb. 8. NOBLE, LOUISA, Clayton, pork butcher. Ct. Bradford. Feb. 8. ROBINSON, GEORGE, Halifax, late fruiterer. Ct. Halifax. Feb. 10. RUDGE, ARTHUR, Corse Lawn, carrier. Ct. Cheltenham. Feb. 9. RUST. HERMANN, late Tunbridge Wells, Court hairdresser. Ct. Tunbridge Wells. Feb. 10. SCOTT, WALTER, Bury, carrier. Ct Bolton. Feb. 9. STAMMERS, GEORGE (trading as George Stammers and Son), Thetford, coal merchant. Ct. Norwich. Feb. 8. WEAVER, JOHN, late Stourbridge, Feb. 10. WILD. LIONEL, Nottingham, lace Feb. 8. Ct. watch repairer. Worcester. Nottingham. SCOTT, THOMAS JOHN (trading as Kendall Davis), Southampton, greengrocer Ct. Southampton. Feb. 11. SIMON, HARRIS, Leeds, boot dealer. Ct. Leeds. Feb. 12. WILSON, ALFRED EDWARD (trading as A. and F. Wilson), Parkstone. builder. Ct. Poole, Feb. 11. WRIGHT, HENRY RICHARD (described in the receiving order as H. Wright (male), trading as the Columbia Paim Stand Manufacturing Com pany). Columbia-rd, Shoreditch, manufacturer. Ct. High Court. Feb. 13. BIRTHS, MARRIAGES, AND DEATHS. BIRTH. EASTON. On the 4th inst., at Oakmount, Heaton Mersey, the wife of James Marshall Easton, Barrister-at-law, of a daughter. MARRIAGES. HINE HARRIS.--On the 4th inst., at the Parish Church, Hornchurch, DEATHS. ALLINSON-ORTON.-On the 8th inst., at his residence. 11, Inverness-ter, LAWRENCE.--On the 10th inst.. at Guy's Hospital. Clement John WILLETT. On the 9th inst. at Hornchurch Camp, while serving with the First Sportsman's Battalion (R.F.), Edward Archibald Willett, of Bromley, Kent, Solicitor, aged 35. The Turnover India Paper Edition, bound in Limp Roan, in thirty Volumes at 32s. 6d. per Volume net. (This Edition may be obtained while the Special Offer relating to it is open at 27s. net per Volume.) The thick edition of "THE LAWS OF ENGLAND " is subscribed by Lawyers who desire to obtain the Work in its most durable form, irrespective of the space it occupies on the bookshelves. Subscribers who take the India Paper Edition are members of the Profession who desire to have the Work in its most portable form, and the edition that occupies the smallest possible amount of space on the bookshelf. 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Advertisements must reach the office not later than five o'clock on Thurs day afternoon, and must be accompanied by a remittance Post-Office Orders payable to the FIELD & QUEEN (HORACE COX) LTD. Vol. 138.-No. 3752 CONTENTS.. REPORTS. 1081 1084 SUPREME COURT OF JUDICATURE. Re BENTLEY; PUBLIC TRUSTEE v. annuities 1097 1099 1100 1103 1107 KING'S BENCH DIVISION. BRAINE v. COMMERCIAL GAS COMPANY. Gas Company...... LEAF . FURZE. Employer and workman -Compensation HIGGINS v. BEAUCHAMP.-Partnership-Trading firm PURCHASE v. LICHFIELD BREWERY COMPANY.-Landlord and tenant 1105 OLYMPIA OIL AND CAKE COMPANY LIMITED (apps.) v. PRODUCE BROKERS COMPANY LIMITED (resps.). Sale of goods REX v. HUMFRYS AND OTHERS; Ex parte WARD.-Bastardy-Bastard child born abroad COURT OF CRIMINAL APPEAL. REX v. ROGERS.-Criminal lawCarnal knowledge of girl under thirteen-Certificate of birth...... 1115 REX v. GROSVENOR.-Criminal law -False pretences... ..... 1116 RAILWAY AND CANAL COMMISSION COURT. SMITH, STONE, AND KNIGHT LIMITED v. LONDON AND NORTH-WESTERN RAILWAY COMPANY AND OTHERS. - Railways-Increase of rates 1110 AND 392 COLONIAL LAW. - Topics - Prize Court: The Corsican Prince........ 389 GENERAL INTELLIGENCE.- Trading with the Enemy - Heirs at Law and Next of Kin-Appointments under the Joint Stock Windingup Acts-Creditors under Estates in Chancery Creditors under 22 & 23 Vict. c. 35 LAW SOCIETIES. Medico-Legal Society: Legal Aspects of the British Pharmacopoeia-Solicitors' Managing Clerks' AssociatioSussex-Royal Courts of Justice and Legal Temperance Society... 894 LAW STUDENTS' JOURNAL.- The Law Society: Preliminary Examination Results-Students' Societi s........ 396 PROMOTIONS AND APPOINTMENTS ...... 396 NOTES AND QUERIES ........................ 396 CORRESPONDENCE 396 LEGAL OBITUARY. Mr. Philip STEADY progress is now being made towards reducing the arrears in the King's Bench Final and New Trial list in the Court of Appeal. Two of the three divisions now sitting are dealing with the work, and, if it is possible for them to continue their labours well into March, by Easter litigants may hope to have their appeals disposed of within a reasonable time. Practically all cases set down in May last have been heard, and within the next month the arrears should be got rid of down to the end of July. The general list of appeals from the Chancery Division, which has never suffered from the congestion of business like the Common Law list, has been dealt with up to the middle of December last, and by the end of this term this list should be right up to date. Enemy Companies and Licences. IT is clear that in refusing or granting music and cinematograph licences the county council has to consider, when exercising its discretion, whether renewals can be granted with due regard to the public interest. It is therefore not surprising that the Divisional Court has upheld an exercise of such discretion, resulting in the refusal to renew licences to a company half of whose directors were German and the bulk of whose shares are held by Germans. The rights and privileges granted to persons of enemy nationality residing in this country have been allowed to a point beyond which it is not desirable to go, and, quite apart from the legal position, it cannot be denied that the county council exercised a wise discretion in the case in question. TRUSTEES AND WAR RISKS. AT this time when property is exposed to risks hitherto fortunately unknown-risks not foreseen by those learned judges whose decisions go to make up the general law governing the obligations of trustees with regard to their cestui que trust-it behoves every trustee to be particularly diligent in the protection of the trust property. The task which we set ourselves in this article is to consider how far the new circumstances affect the old law, how far a trustee ought to have regard to these new circumstances, and how far the court would protect him if he fails to take into consideration these altered circumstances. There are numerous dicta in the reported cases which establish a criterion for testing the conduct of a trustee. Of these dicta probably the statement of Lord Blackburn in the well-known case of Speight v. Gaunt (50 L. T. Rep. 330; 9 App. Cas. 1, at p. 19) is the most notorious. "The authorities," said his Lordship, "I think show that as a general rule a trustee sufficiently discharges his duty if he takes in managing trust affairs all those precautions which an ordinary prudent man of business would take in managing similar affairs of his own." As the late Lord Macnaghten said in Knox v. Mackinnon (13 App. Cas. 753, at p. 768), any system of trusts which did not require trustees to act with perfect impartiality as between their cestuis que trust, and to bring to the management of trust affairs the same care and diligence which a man of ordinary prudence may be expected to use in his own concerns, would be illusory and mischievous I think these cases," said Lord Herschell in Rae v. Meek (14 App. Cas 558, at p. 569), speaking of an English and a Scottish case, “establish that the law in both countries requires of a trustee the same degree of diligence that a man of ordinary prudence would exercise in the management of his own affairs." 66 So much for what we may call the general criterion of a trustee's caution. It is, however, a comparatively easy matter to lay down general rules. The difficulty is to apply the general rule to a concrete case. Thus, suppose a trustee of house property in a quiet east coast watering-place to be considering the question whether he ought to insure the property against damage or destruction by bombardment. Is he acting as a prudent man in not insuring? Would a prudent man owning property in such a locality insure against such a risk? Our trustee must answer these questions for himself. If he turns to his friend A., he finds that A. has not insured his own property which is situate in the same town. Then he turns to B. and finds that the latter has insured his property which is situate, not only in the same town, but in the same quarter of that town. Then our trustee goes for advice to his friend C. C. asks him whether the trust property is situate near an infants' school or kindergarten, and advises him that if it is he ought to insure immediately. Considering this advice flippant, our trustee goes to D., and D. advises him to wait and see. After an anxious day the unfortunate trustee repairs to bed with his head full of this conflicting advice. On the whole, it seems to him wisest to adopt D.'s advice to postpone his decision, and this is the line of conduct he decides to follow, when, on the point of falling asleep, he suddenly remembers the existence of Miss X.'s kindergarten in the next street to that in which his trust property is situated. When finally asleep, he is awakened by some loud noise downstairs, and, without investigating the cause, he determines to follow B.'s line of conduct and to insure next day. When he wakes, the calming influences of the return of daylight induce him to discard all advice and to follow the example of A. The matter is, he thinks, finally clinched when he is told that his best soup tureen has been knocked off the kitchen table by the cat in the night and broken to pieces. But as the day passes his confidence in himself as a prudent man of business becomes shaken and he resorts again to his friends for advice. And so the process is repeated. If we were to express an opinion on the question of insuring against risks of loss or damage of trust property through hostile bombardment it would be against insurance. In the first place, the risk is very remote. In the second place, "trustees are not insurers." This terse phrase was used by Lord Justice Lindley in Re Hurst; Addison v. Topp (67 L. T. Rep. 96, at p. 99), and it very aptly defines the position of trustees in this matter although, of course, it was directed to a very different set of circumstances. We will show, as we think, to the point of demonstration that no trustee would be held liable for not insuring against such a risk. Although a trustee must take reasonable care for the protection and preservation of the trust property, he is not liable for the loss occasioned by fire where there is no express trust to insure the trust premises against that risk. Thus in Bailey v. Gould (1840, 4 Y. & C. 221) it was sought to charge executors on the ground of wilful default for not having insured part of their testator's estate. The premises in question had in fact been insured by the testator in his lifetime, but a few weeks before his death he allowed the policy to lapse. Some six years after the testator's death the premises were burnt down, and it was found that the executors had not insured. Baron Alderson refused to allow the latter to be charged in respect of this loss. It would be a strong thing, he said, to allow the executors to be charged on the ground of wilful default for an omission to do what the testator-a reasonable man taking reasonable care of his own property-had himself not done. Again, in Fry v. Fry (1859, 27 Beav 144), before Sir John Romilly, trustees of a will were held to have incurred no personal liability for not effecting a policy of insurance against fire. The premises in that case were leaseholds held under a lease containing a covenant on the part of the lessee to insure. The testator himself had allowed the policy to lapse, and after his death the premises were burnt down The estate thus became liable on the covenant, and the trustees, who were also executors, paid certain sums out of the assets in discharge of the liability on the covenant. It was sought to induce the court to disallow these payments. That is to say, beneficiaries, or some of them, sought to charge them as executors with the consequences of not keeping up the insurance. Sir John Romilly, however, refused to accede to this. the Here we may call the reader's attention to the provisions in the Trustee Act 1893 relative to this matter of insurance by trustees. Sect. 18 of that Act enacts that trustees may insure against loss or damage by fire any building or other insurable property to any amount not exceeding three equal fourth parts of the full value of such building or property, and may pay the premiums for such insurance out of the income of the property, or out of the income of any other property subject to the same trusts, without obtaining the consent of any person who may be entitled wholly or partly to that income. It is, however, important to observe that the section is not to authorise any trustee to do anything which he is in express terms forbidden to do, or to omit to do anything which he is in express terms directed to do, by the instrument creating the trust. In the comparatively recent case of Re McEacharn; Gambles v. McEacharn (103 L. T. Rep. 900; (1911) W. N. 23) certain insurances effected by the testator were found to be for amounts falling far short of the real value of the insured property, and it was sought by the remaindermen under the will to have the trust property insured for adequate sums. A question arose as to how the premiums were to be borne as between capital and income. The remaindermen contended that the trustees as prudent managers ought to exercise their statutory power under the Trustee Act 1893 and increase the amount of the insurances. The trustees, however, were not agreed upon this point. Mr. Justice Eve held that the statutory provisions of the Trustee Act did not impose any liability on the trustees, but merely conferred a power on them to insure. His Lordship pointed out that the two cases of Bailey v. Gould and Fry v. Fry, to both of which we have already referred, went to show that the court would not hold an executor or trustee liable on the footing of wilful default for losses caused by fire on premises left uninsured by the testator. The learned judge expressed the view that in the face of those authorities it was impossible to hold that insurance against fire was an expense necessary to be incurred by trustees, for, if it were, it would follow logically that they would be liable for loss due to their neglect to insure, which was just what those authorities negatived. The foregoing authorities show that a trustee is not called upon to insure property which he finds is uninsured at the time |