when it comes to him. He is not liable, as Mr. Justice Eve pointed out in Re McEacharn; Gambles v. McEacharn (sup.), to insure property left uninsured by the testator. But these authorities appear to go even somewhat further than that. They appear to show that whether the state of being uninsured when the property comes to the trustee is due to accident or not, the trustee need not insure. This, of course, does not necessarily mean that a trustee could safely allow a subsisting fire policy to lapse. On the contrary, a wilful omission on his part to keep up the policy when the means of keeping it up were at hand could hardly fail to be wilful negligence on his part. If the analogy of a bailee, which has often been applied in the case of a trustee in possession of trust deeds and trust chattels, can be said to apply in the case of a trustee of house property, then clearly the trustee would find himself in a difficult position. But observe that we are not dealing with insurance against the common risk of fire. We are dealing with a risk arising from the King's enemies. There is a very wide difference between a trustee failing to keep up an ordinary fire policy which he finds on foot when he becomes a trustee of the insured property and a trustee refusing to enter into a completely new form of insurance against a new form of risk.

Now with regard to this analogy of a bailee, it has been said that as regards trust chattels, if the trust property is destroyed or stolen under circumstances not involving wilful negligence on the part of the trustee, he cannot be charged with the consequences of the loss. Thus, speaking of the loss of deeds which had been stolen, Vice-Chancellor Page Wood in Brown v. Sewell (1853, 11 Hare, 49, at p. 52) said: "The principle is that a bailee is not liable for the consequences of such an accident where all reasonable care has been taken."

There are, of course, bailees and bailees. Lord Chief Justice Holt in the well-known case of Coggs v. Bernard (1703, 2 Raym. 909) classified bailees under six heads, pointing out the respective obligations according to these categories. There are, he said, six sorts of bailment. First, a bare naked bailment of goods delivered by one man to another to keep to the use of the bailor. Secondly, where goods or chattels that are useful in themselves are lent to a friend gratis, to be used by him. Thirdly, where goods are left with the bailee to be used by him for hire. Fourthly, where goods are delivered to another as a pawn to be a security for money borrowed by the bailor from the bailee. Fifthly, where goods are delivered to be carried or for the purpose that something shall be done in respect of them by the bailee for some reward paid by the bailor to the bailee. Sixthly and lastly, where goods are delivered to the bailee, who is to do something in respect of them without any reward for the doing of that thing.

Presumably the case of a trustee undertaking the custody of trust chattels or deeds is in the position of a bailee of the first or the sixth class mentioned by Lord Chief Justice Holt. In Coggs v. Bernard (sup.) the case fell within the sixth class, and the learned judge addressed himself to the consideration of the obligations attaching to a bailee of that class. 'The bailee," said his Lordship," having undertaken to manage the goods, and having managed them ill, and so by his neglect a damage has happened to the bailor, which is the case in question, what will you call this? It is an obligation which arises ex mandato. It is what we call in English an acting by commission; and if a man acts by commission for another gratis, and in executing his commission behaves himself negligently, he is answerable. This undertaking obliges the undertaker to a diligent management." After stating that this principle was supported by good reason and authority, the leaned Chief Justice gave as one of the reasons that a neglect would be a fraud on the person who intrusted the goods to the bailee. When the bailor intrusts the bailee on the bailee's undertaking to be careful, the bailee would put a fraud on the bailor by being negligent inasmuch as the pretence of care would have been the persuasion that induced the bailor to intrust the bailee, "And," added his Lordship, breach of trust, undertaken voluntarily, will be a good ground for an action." To the objection that there would be no consideration to ground the implied promise to be careful, the learned Chief Justice laid it down that the owner's intrusting

a

the bailee with the goods is a sufficient consideration to oblige the latter to a careful management.

That this analogy of a gratuitous bailee applies to the case of a trustee as regards trust chattels and deeds appears to be clearly established. Thus in the very briefly reported case of Morley v. Morley (1678, 2 Ch. Ca. 2) it is stated that the defendant was a trustee for the plaintiff, who was an infant. The defendant received £40 in gold for his infant cestui que trust. A servant of the defendant living in the latter's house robbed his master of £200, which included the £40 in gold. The robbery was proved; but the fact that the £40 was among the other money was proved only by the defendant's oath. The Lord Chancellor is reported to have said: "He was to keep it but as his own, and allowed it on account; so in case of a factor, so in case of a person rubbed, for he cannot possibly have other proof." In addition to this case we have the high authority of Lord Hardwicke and the more recent authority of Sir George Jessel.

Lord Hardwicke had to consider the case where a personal representative had delivered goods to her solicitor from whom the goods were afterwards stolen. She claimed that the goods had come into her hands as a trustee, and that she had kept them in the way she would have kept her own goods. The parties who sought to make her accountable for the loss contended that as a trustee intrusted with the goods she ought not to have intrusted them to her solicitor. The Lord Chancellor, however, decided in her favour. "It is certain," said his Lordship, "that if a bailee of goods against whom there is an action of account at law loses the goods by robbery, that is a discharge in an action of account at law; and it is proved (and, I think, reasonably) that if a trustee is robbed, that robbery, properly proved, shall be a discharge, provided that he keeps them so as he would keep his own. So it is as to an executor or administrator, who is not to be charged further than goods come to his hands; and for these not to be charged unless guilty of a devastavit; and if robbed, and he could not avoid it, he is not to be charged, at least in this court. The defendant is administratrix. Supposing these goods had been in her own custody, and she had been robbed, I am clearly of opinion, if that fact be made out, she ought to have been discharged of these goods. . . . The only doubt then is that they were not lost out of her custody, but her solicitors', where they were put by her for a particular purpose. I do not know that a bailee, executor, administrator, or trustee are bound to keep goods always in their own hands. They are to keep them as their own and take the same care."

Sir George Jessel in the more recent case of Job v. Job (7 Ch. Div. 562) adopted the foregoing dicta of Lord Hardwicke. With regard to the question left open by Lord Hardwicke in Morley v. Morley (sup.)—whether the rule was the same in law as in the courts of equity-Sir George Jessel pointed out that the Judicature Act 1873 provided (see sect. 25, sub-sect. 11) that where there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity are to prevail. "The rule then," said his Lordship, "at law as well as in equity now is that an executor or administrator is in the position of a gratuitous bailee, who cannot be charged with the loss of his testator's assets without wilful default." To these cases we may add the case of Johnson v. Palmer (67 L. T. Rep. 797; (1893) 1 Ch. 71), where Mr. Justice Romer, as he then was, held that a trustee who is remunerated for his services is not liable for loss arising by the felonious acts of his servant, provided the trust property has been properly intrusted to the latter. His Lordship applied the analogy of a bailee.

The foregoing remarks appear to establish the proposition that if a trustee in his own judgment considers the risk of destruction or loss to the trust property through bombardment or some other hostile act a risk which he himself would not insure against in the case of his own property, he could not be brought to book for the omission to insure. No doubt he would have to satisfy the court that in determining this question he used his best judgment and acted like a reasonable man would act with regard to his own property. There can be very little doubt indeed that in the present circumstances he would have no difficulty in satisfying the court on this point.

AMERICAN NEUTRALITY. OUTSTANDING problems of international law continue to develop with the exchange of further diplomatic communications between America and ourselves on the one hand and America and Germany on the other and with the general progress of events.

An article in the LAW TIMES last week (p. 354) discussed the question of the transfer of German vessels to American ownership the problems raised by the voyages of the Dacia and the Wilhelmina, Sir Edward Grey's interim reply to the American note on neutral trade, the German declaration of a war zone round the British Isles, and the American warning to Germany as to the possible consequences of infringement of American neutral rights.

The American note to us as to the use of the American flag by British ships has been answered by a memorandum from Sir Edward Grey pointing out that, as Germany has announced the intention of sinking merchant vessels at sight, "a proceeding hitherto regarded by the opinion of the world not as war but as piracy," the United States cannot fairly ask us to order British merchant vessels to forego the means-always hitherto permitted of escaping not only capture, but the much worse fate of sinking and destruction.

Sir Edward Grey has also delivered his full reply to the American note as to interference with American neutral trade. It is a long and singularly effective statement. By a detailed examination of all the circumstances it refutes the allegation that our naval policy has interfered with the shipments of American products to neutral European markets, and then deals with the question of contraband and the doctrine of " continuous voyage." After referring to the fundamental principle of international law that a belligerent is entitled to capture contraband goods on their way to the enemy, the note shows that the means of exercising this right have altered and developed with changes in the method and machinery of commerce. The growth of facilities whereby a belligerent may supply himself through the ports of a neutral country has led to the extension of the doctrine of continuous voyage. The Americans themselves have been largely responsible for the development of this doctrine, in pursuance of which we have exercised the right of search against American ships, subjecting them, however, to as little detention as possible having regard to present-day conditions. It is pointed out that, although at first we made no distinction between absolute and conditional contraband in the application of the doctrine of continuous voyage, we have more recently relaxed the rules so far as conditional contraband is concerned, thus giving greater freedom for the American trade in foodstuffs. The elaborate machinery organised by Germany for the supply of foodstuffs from overseas for the use of the army has, however, affected the situation, and, furthermore, the assumption by the German Government of control of all food supplies has swept away the division between those whom the Government is responsible for feeding and those whom it is not.

The logical sequence to the line of argument pursued in Sir Edward Grey's reply would be the declaration of foodstuffs as absolute contraband. This step is foreshadowed in a further note dispatched with particular reference to the seizure of the cargo of foodstuffs carried by the American ship Wilhelmina. The German Government's control of food supply is not, it is pointed out, the only ground on which the submission of the cargo of the Wilhelmina to a Prize Court is justified. Germany has seized and sunk ships and cargoes of conditional contraband on the way to British ports, and we claim the right to treat Hamburg as a fortified town and base of supply. Our action regarding the cargo of the Wilhelmina is, therefore, entirely in accord with international law. But the memorandum proceeds to refer to the fact that the Germans have violated the established rules of international law and practice, and, faced with this situation, we cannot, Sir Edward Grey explains, remain indefinitely bound, to our grave detriment, by rules and principles openly set at defiance by our enemies. "If, therefore," the memorandum concludes, "His Majesty's Government should hereafter feel constrained to declare foodstuffs absolute contraband, or to take other measures for interfering with German trade, by

way of reprisals, they confidently expect that such action will not be challenged on the part of neutral States by appeals to laws and usages of war whose validity rests on their forming an integral part of that system of international doctrine which as a whole their enemy frankly boasts the liberty and intention to disregard, so long as such neutral States cannot compel the German Government to abandon methods of warfare which have not in recent history been regarded as having the sanction of either law or humanity."

That the United States cannot compel Germany to abandon its new policy of piracy is evident from the tone of the official German reply to the American note of protest, The reǝly (the full text of which was made public on the 19th) reiterates that all trade within the war zone, whether belligerent or neutral, is threatened, and that the German Government declines all responsibility for accidents and their consequences.

The German "war zone" is not a blockade. In order to be binding, a blockade must be effective. The torpedoing of a Norwegian steamer with American cargo in the English Channel and the sinking of two American merchant vessels off the German coast raises the question which America has plainly intimated may have most serious consequences. "If commanders of German vessels of war," said the United States note to Germany, "should destroy on the high seas American ve sels, or the lives of American citizens, it would be difficult for the Government of the United States to view the act in any other light than an indefensible violation of neutral rights."

Meanwhile the allies have determined to draw tighter the restrictions on German supplies. The definite inclusion of foodstuffs in the list of articles of absolute contraband would be no new precedent. There are a number of instances to be found in the old reports in which various kinds of food were condemned as contraband. The question had to be considered during the French war with China in 1885, but did not arise for actual decision. In the Russo-Japanese War Russia declared provisions to be absolute contraband, but receded from this position in deference to representations from the British and American Governments.

It is evident, from the course which events are taking, that as the outcome of the present war many positions in international law will have to be re-examined. It is less than a year ago that Sir Edward Grey announced in Parliament a change in the attitude of the Government towards the question of the immunity from capture of private property at sea, and a willingness to discuss conditions for immunity. He indicated that questions of blockade, contraband, floating mines, and other topics would have to be considered as the same time. They may have to be considered now, in the light of more recent events, along with the subject of Prize Courts. A question was put in the House of Commons the other day by Mr. King as to whether certain cases could not be decided before a court in which one or more of the judges might be eminent lawyers appointed by neutral or allied Powers, more especially in connection with issues arising between this country and the United States. From the reply, the Foreign Office apparently does not regard the idea unsympathetically, though no change can be made in present circumstances of great pressure. After the period of stress there will be a great many problems demanding examination and solution by international lawyers.

COMMENTS ON CASES.

Forfeiture of Debentures Debarring Specific Perform

ance.

To meet the decision of the House of Lords in the wellknown case of South African Territories Limited v. Wallington (78 L. T. Rep. 426; (1898) A. C. 309), the provision which now forms sect. 105 of the Companies (Consolidation) Act 1908 (8 Edw. 7, c. 69) came into existence. For it could not fail to be recognised that, however inevitable was the ruling that no action will lie to enforce specific performance of a contract to lend money, yet where the contract is one to take up debentures in a company that ruling has very many inconvenient consequences. Accordingly, the enactment that "a contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance" proved a welcome exception to an otherwise salutary rule of law. Pressed with the significance of that new remedy, Mr. Justice Horridge, in the recent case of Kuala Pahi Rubber Estates Limited v. Mowbray (111 L. T. Rep. 1072), declared himself perfectly willing to amend the plaintiff company's mode of procedure, and treat the action originated by a specially indorsed writ as though it were one for specific performance, if such a method had been open to his Lordship. But as the learned judge pointed out, specific performance could not be taken advantage of by the plaintiff company owing to the previous course that had been adopted by them. And seeing the essentiality of avoiding the same kind of act, because of its effect in debarring a resort to the statutory remedy, it is important to consider what the plaintiff company had thought proper to do. Turning to our report, it is seen that the debentures in question were issued to the defendant upon terms that are of quite the usual character: A payment on application, another on allotment, and the balance of the amount of the debentures by calls not exceeding a specified sum. Nonpayment of any instalment when due was to render all previous payments liable to forfeiture. The defendant duly made the payments up to and including allotment; but he neglected to pay the first and second calls. Thereupon the plaintiff company forfeited the debentures that were standing in the name of the defendant. This was manifestly a fatal step in so far as any subsequently attempted recourse to the powers conferred by sect. 105 of the Act of 1908 was concerned. plaintiff company had, as Mr. Justice Horridge said, placed themselves outside the position to fulfil their portion of the contract if specific performance had been decreed, as the debentures were no longer available to the defendant. Macnaghten's remarks in South African Territories Limited v. Wallington (at p. 429 of 78 L. T. Rep. and p. 319 of (1898) A. C.) were cited by Mr. Justice Horridge in support of the conclusion thus arrived at by him. And inasmuch as, apart

The

Lord

from specific performance, by virtue of the section, there was no right to recover under the debentures, having regard to the decision of the House of Lords, the plaintiff company's action fell through altogether.

Share Fishermen's Claims to Compensation.

THE attention of all interested in workmen's compensation law may well be invited to the two cases that we note this week of Stephenson v. Rossall Steam Fishing Company Limited and Barron

V.

Seaton Burn Coal Company Limited (see post, p. 381). If the points there raised are not of actual novelty, at any rate they were presented in a guise that does not appear to have ever previously required the consideration of the Court of Appeal. The Workmen's Compensation Act 1906 (6 Edw. 7, c. 58) is declared by sect. 7, sub-sect. 2, not to apply to such members of the crew of a fishing vessel as are remunerated by shares in the profits of the gross earnings of the working of such vessel. As stated in our note, the deceased fisherman in Stephenson's case (ubi sup.) became such a sharer in the profits or gross earnings because of the fact that he participated in what is known in the trade as stocker." That was decided in Burman v. Zodiac Steam Fishing Company (noted 137 L. T. Jour. 316) to make the member of the crew of a fishing vessel a "share fisherman," and, therefore, Second Sheet.

disentitled to the benefits of the Act of 1906. But, as is likewise stated in our note, the share fisherman met with his death through the fishing vessel in which he sailed being lost with all hands on the day after she left port. No stocker was consequently obtained in a share of which the deceased was ultimately to have been a participator. On that ground, the learned County Court judge held the sub-section to be inapplicable to the case before him and accordingly awarded compensation to the dependants of the deceased. It is not difficult to comprehend the error into which His Honour thus permitted himself to fall. As there was no stocker obtained, at the date of the fisherman's death, how could it be said that be was being remunerated by a share in such? The Court of Appeal, however, made clear beyond all doubt what cannot but be regarded as the true intention of the sub-section. It is quite irrelevant whether at the end of a voyage there is or is not any stocker to be divided. The question to be determined is whether the fisherman was entitled to be remunerated by a share in the stocker if there was any divisible. It was a part of his contract that he should receive from his employers, not only his wages, board, and lodging, but also such share of the profits or the gross earnings of the working of the vessel as might result on the conclusion of the voyage. The present decision has probably wider application than when stocker only is in question. “Industrial Diseases" and Previous Employers.

In the second case to which we are now referring the reader -namely, that of Barron v. Seaton Burn Coal Company Limited (ubi sup.)-sect. 8 of the Act of 1906 needed discussion. And the decision of the Court of Appeal, reversing that of the learned County Court judge, is of far-reaching importance. If an industrial disease is of such a nature as to be contracted by a gradual process, other employers, who during the twelve months previous to the certificate of the certifying surgeon employed a workman suffering therefrom, are rendered liable to contribute towards compensation to him. Upon the County Court judge is cast a heavy burden to determine how the contributions of the previous employers during the twelve months shall be ascertained The last employer is the person against whom the claim for compensation has in the first place to be made by the workman. But he, in his turn, is warranted in claiming that the previous employers shall contribute in conjunction with him. The task of the County Court judge is somewhat simplified if it is only a question whether the amounts of the respective contributions shall be proportionate to the respective periods of employment. But if, as in the present case, that question is complicated by the circumstance that one of the employers claims the right to give evidence that the industrial disease was unlikely to have arisen in his employment, so that he ought not to bear a rateable proportion of the total weekly payment, then much additional labour is caused. Nevertheless, according to the decision of the Court of Appeal, that is an investigation that the County Court judge cannot escape from undertaking. He must admit the evidence, and do the best he can to make an award apportioning the liability as between the several employers. Difficult though this may be, it is assuredly the only way whereby a just apportionment is capable of being ascertained.

THE CONVEYANCER.

Two Legatees of Similar, but not the Same, Names.

THE recent decision of the House of Lords in National Society for Prevention of Cruelty to Children v. Scottish National Society for Prevention of Cruelty to Children (111 L. T. Rep. 869) shows the extreme importance in bequests of legacies to charities of describing them by their correct name. In that case a Scotsman, living in Scotland, left (among other legacies to charities, all of which were Scottish) a legacy to "The National Society for the Prevention of Cruelty to Children." The legacy being claimed by "The National Society for the Prevention of Cruelty to Children" and by "The Scottish National Society for the Prevention of Cruelty to Children," it was held by the Court of Session (in this respect reversing the interlocutor or judgment

of the Lord Ordinary) that the description of the society was ambiguous, and proof was allowed of extrinsic facts averred by the claimants, the Scottish society, to show the testator's intention. Evidence was furnished to show (among other things) that the National Society did no charitable work in Scotland, and that the Scottish society had for a certain period of nine years been known as the National Society for the Prevention of Cruelty to Children (Scottish Branch). Both the Lord Ordinary and the Court of Session held that the Scottish society were entitled to the legacy. On appeal to the House of Lords that decision was reversed, and it was held that the English society was entitled to the legacy. It was urged on the part of the Scottish society that in the mouth of a Scotsman the "National Society" would mean the Scottish society; but, as pointed out by Earl Loreburn, the testator used the word "National," not as expressive of his own thoughts, but as part of the name which had been adopted by people living outside Scotland. Lord Dunedin said that he could not help having a moral feeling that this money was probably going to the society to which, if the testator had been asked, he would not have sent it, and with that observation many persons would probably agree. It is one that not infrequently occurs in construing wills. But, as pointed out by his Lordship, that is not the question for a court of law. All the Law Lords seem to have agreed that there was no ambiguity, and Lord Parmoor thought that, so far as the extrinsic facts were concerned, most of the evidence was quite irrelevant and inadmissible. We respectfully agree that it was not a case in which parol evidence of intention was admissible. But it is submitted that the fifth proposition in Wigram on Extrinsic Evidence in aid of the Interpretation of Wills, 5th edit., by Mr. E. P. Sanger, applied-namely, that "for the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will." But precisely what facts can be put in evidence under that proposition may be a difficult question.

Interest on Contingent Gifts.

THE ever-recurring question as to what is the destination of the income before the corpus has actually vested was the subject of decision in Re Stevens (noted ante, p. 360). The testator had devised certain real estate to trustees upon trust to permit his daughter to receive the income during her life, and after her decease "as well the income as the capital thereof," in trust for her children who being sons attained twenty-one, or being daughters attained that age or married, in equal shares. The daughter died in Dec. 1913, leaving six children, and in Dec 1914 one of them attained twenty-one. There were obviously two points to be considered here—namely, what was to be done with the rents and profits (1) until the eldest child attained twentyone; (2) after he had attained twenty-one. Mr. Justice Fry in Guthrie v. Walrond (47 L. T. Rep. 614; 22 Ch. Div. 573) said: "I think the law is plain that when a specific legacy is given on the happening of a contingency, the interest upon it and any accretions to it before the happening of the contingency fall into the residue of the testator's estate, or go to his next of kin, as the case may be." The same rule applies to a contingent pecuniary legacy: (1 White & Tudor's Leading Cases, 8th edit., 899). The case of an infant to whom the testator was in loco parentis is an exception to this rule: (ibid.). When the income falls into the residue, it is by a rule of convenience treated as income of the residue, and so is payable to the tenant for life and not accumulated as an addition to the capital: (Lewin on Trusts, 12th edit., 337). In Re Bowlby (91 L T. Rep. 573; (1904) 2 Ch. 685) Lord Justice Chitty refers to the case where, for the purpose of providing a fund for a contingent legacy, the testator directs a part of the personal property to be set aside, and points out that in that case the income would be added to the corpus, and the legatee could claim it when the contingency happens.

A contingent gift of residuary personalty carries the interim income, or, as Lord Justice Lindley expressed it in Re Holford 70 L. T. Rep. 777; (1894) 3 Ch. 30), "It must be remembered that the income of a residuary personal estate, or of a residuary fund arising from the proceeds of the sale of real and personal estate, is regarded as accessory to the capital, and belongs to those to whom such residue is bequeathed." The Court of Appeal in that case unanimously decided that, where there is a residuary gift of personalty to all the children who shall attain twenty-one the first to attain that age does not take all that income until another attains it, but has only a share of such income according to the number of children who would acquire vested interests if they attained twenty-one. We have so far dealt with the rules relating to personalty, but in regard to contingent gifts of realty different considerations apply. In Bective v. Hodgson (10 L. T. Rep. 202; 10 H. L. C. 656) Lord Westbury, then Lord Chancellor, said: "It is an indisputable rule of law, that if a freehold estate be given by way of executory devise, there is no disposition of the property until that estate arises and becomes vested; and, consequently, in the meantime the freehold property descends to the heir-at-law. Now, this is the consequence of the great principle or rule of law, that the freehold cannot remain in abeyance; but that rule has no application to bequests of personal estate. Consequently, if by a will the whole of the personal estate or the residue of the personal estate be the subject of an executory bequest, the income of such personal estate follows the principal as an accessory, and must, during the period which the law allows for accumulation, be accumulated and added to the principal. In the case

of personal estate, the policy of the law does not require that there should be a representative of the beneficial ownership." There is a strange but well-known rule consequent on this principle as to real estate, and that is that a testamentary gift of realty to a class who shall attain twenty-one (or marry) gives to the first who attains that age (or marries) the whole of the rents and profits, subject to the divesting of a proportionate part thereof as each of the others attains that age (or marries): (Re Averill, 78 L. T. Rep. 320; (1898) 1 Ch. 523; Re Walmsley's Settled Estates, 105 L. T. Rep. 332). The difficulty of the beneficial interest in the realty being in abeyance does not appear to have troubled Mr. Justice Sargant in Re Stevens (sup.), as he decided that each of the children was entitled as and when he became entitled to the corpus to one-sixth of the rents from the death of the tenant for life. Apparently where there is a contingent gift of a blended mass of residuary realty and personalty, the rules as to personalty prevail by attraction: (Strachan's Law of Trust Accounts, p. 126).

NOTES OF RECENT DECISIONS NOT YET REPORTED.

BY OUR REPORTERS IN THE SEVERAL Courts.

HOUSE OF LORDS. Bridges-Highway carried by Bridge over Canal-Bridge constructed 100 Years ago under local Act-Duty to keep Bridge in sufficient Repair-Alteration in Character of Traffic ordinarily using Highway-Motor Traction-Standard of Liability to repair-Worcester and Birmingham Canal Act 1791 (31 Geo. 3, c. 59), s. 61.

By a local Act passed in 1791, a canal company were required to make such bridges over their canal as certain commissioners appointed under the Act should judge to be proper to carry the traffic of the highways which were cut through by the canal. The Act imposed a further liability on the canal company to support, maintain, and keep such bridges in sufficient repair. Bridges were built which were approved by the commissioners. They were maintained and kept in repair from time to time. as required by the Act, by the canal company, and subsequently when that company, was acquired by the present appellants the dock company, the Worcester Corporation a'leged that in their present state all these bridges within their district, with one exception, were insufficient to carry motor traction traffic, and that, having regard to the character and present day needs of the district, the bridges should be strengthened or rebuilt, and they claimed a declaration to that effect. The Court of

Appeal (110 L. T. Rep. 634), setting aside a judgment of Phillimore, J. in effect dismissing the action, gave judgment for the plaintiffs, the Corporation. The defendants appealed. Held, after consideration, that the liability imposed by the local Act must be determined with reference to the class of traffic only ordinarily on the roads when the bridges were built. Accordingly the appeal was allowed and the decision of Phillimore, J. (108 L. T. Rep. 517) restored, with costs to the appellants in that House and in the Court of Appeal. [Sharpness New Docks and Gloucester and Birmingham Navigation Company v. Attorney-General (on the relation of the Mayor, &c., of Worcester). H. of L.: Viscount Haldane, L.C., Lords Dunedin, Atkinson, Parker, and Parmoor. Dec. 15, 16, 1914, and Feb. 19, 1915.-Counsel: Sir Robert Finlay, K.C., Macmorran, K.C, and E. W. Cave; George Cave K.C., J. B. Matthews, K.C., and W. W. Mackenzie, K.C. Solicitors: Yeates and Hunt, for Johnson and Co., Birmingham; Church, Rendell, and Bird.]

COURT OF APPEAL. Company-Judgment Creditor's Petition to wind-up-Proceeding "to execution on, or otherwise to the enforcement of" a Judgment-Leave of Court-Courts (Emergency Powers) Act 1914 (4 & 5 Geo. 5, c. 78), s. 1, sub-s. 1 (a).

A motion was made by two companies for an injunction to restrain the respondent, who was a judgment creditor of the companies, from advertising or proceeding with a petition to wind-up the companies, or otherwise proceeding to the enforcement of the judgment which she had obtained, unless and until application had been made to the court under sect. 1, sub-sect. 1 (a), of the Courts (Emergency Powers) Act 1914 and the court should have given leave to proceed. Sect. 1, sub-sect. 1 (a), of that Act provides that no person should proceed to execution on, or otherwise to the enforcement of, any judgment or order of any court (whether entered or made before or after the passing of that Act) for the payment or recovery of a sum of money to which the sub-section applies, except after such application to such court and such notice as might be provided for by rules and directions under that Act. This sub-section was applicable to the sum due to the respondent on the judgment obtained. The question was whether the petition to wind-up the companies was a proceeding to enforce a judgment within the meaning of the sub-section. It was decided by Astbury, J. (ante, p. 293) that this petition was a proceeding "to execution on, or otherwise to the enforcement of," the judgment of the respondent within the meaning of sect. 1, sub sect. 1 (a), of the Courts (Emergency Powers) Act 1914, and that therefore the leave of the court to proceed was required under that Act; that it was made clear in the cases of Re Chapel House Colliery Company (49 L. T. Rep. 575; 24 Ch. Div. 259) and Re Crigglestone Coal Company Limited (95 L. T. Rep. 510; (1906) 2 Ch. 327) that a winding-up order entitled the creditor to seize the assets of his debtor and might be called an equitable execution, and therefore a petition to wind up must be held to be within the meaning of this Act; and that the Act, being passed to prevent unnecessary destruc. tion of property or credit of debtors who had been affected by the war, should be applied in such a case as the present. The petitioner appealed.

Held, that execution on a judgment," which was a technical expression, was not applicable to a winding-up petition inasmuch as it lacked every element of such an execution; and that a winding-up petition was not a proceeding "to the enforcement of" a judgment within the meaning of the sub section. Appeal allowed.

[Re Companies 0022 and 0023 of 1915. Ct. of App. Lord Cozens-Hardy, M.R., Phillimore, L.J., and Joyce, J. Feb. 10 and 16.-Counsel: Jenkins, K.C. and B. A. Hall; Hon. Frank Russell, K.C. and Percy F. Wheeler; Gore-Browne, K.C., H. M. Giveen, and A. F. Topham. Solicitors: Herbert Smith and Co.; Close and Co.; Walbrook and Hosken.]

Workmen's

Employer and Workman-Death caused by Accident-Compensation-Claim by Dependants-Captain of Ship-Remuneration not exceeding £250 per Annum-" Workman Compensation Act 1906 (6 Edw. 7, c. 58), ss. 1, 7, 13. The steamship M. was last sighted at sea on the 12th April 1914 in terrific weather, and she was presumed to have been lost on that date with all hands. On the 17th March 1914 the captain sailed from this country in the M. under an agreement in writing with the owners of the ship dated the 13th March 1914. By that agreement the captain's wages were to be at the rate of £20 per calendar month, and, provided the steamer was kept free of all damage and claims for twelve months, the owners agreed to pay him a gratuity of £48 per annum, but failing to keep the steamer free of damage and claims the gratuity was to be forfeited, and, further, the salary was to be reduced to £16 per month. His wages for each voyage were paid at the end of that voyage, and the date on which the ship was lost was

just before the expiration of the first calendar month from the date of the agreement. The captain had thus failed to "keep the steamer free of damage," she being totally lost. The gratuity was therefore forfeited, and the captain's salary was reduced to £16 per calendar month. This amounted to £192 per annum, and the value of his board and accommodation on his ship was assessed by the County Court judge at £45 10s. per annum, together making £237 10s. per annum, or a sum not exceeding £250, on which footing the captain was a "workman" within the meaning of the definition contained in The sect. 13 of the Workmen's Compensation Act 1906. County Court judge, on the basis taken by him, found that the and captain's remuneration did not exceed £250 per annum, 99 were "workman accordingly that the dependants of the entitled to compensation. The employers appealed. Held, that the decision of the County Court judge was right. Appeal dismissed.

[Williams v. Owners of Ship Maritime. Ct. of App.: Lord Cozens-Hardy, M.R., Swinfen Eady and Phillimore, L.JJ.. Feb. 4 and 9.-Counsel: Alexander Neil on and Greaves Lord; J. H. Layton. Solicitors: Holman, Birdwood, and Co., agents for Rogers and Birkett, Liverpool; Rawle, Johnstone, and Co., agents for Hill, Dickinson, and Co, Liverpool.]

Employer and Workman-Death caused by Accident-Compensation-Claim by Dependants-Member of Crew of Fishing Vessel remunerated by Share in Profits or gross Earnings of working of Vessel-Share of "Stocker unobtained at Death of Share Fisherman-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), ss. 1. 7 (2).

The deceased fisherman was a member of the crew of the fishing smack D., which was lost with all hands on the day after she left port. He had previously been engaged on the fishing smack S. of F, owned by the same owners and engaged in the same branch of fishing. By the custom of the port a deck hand was entitled, in addition to his wages and board and lodging, to a share, not precisely ascertained in amount, of the "stocker." The shipowners sold the "stocker," handing the net proceeds of the sale over to the skipper and leaving him to distribute it among the crew. The deceased received" stocker" upon all trips on the S. of F. except the last, the amount of which was presumably not ascertained when the S. of F. came in and the D. went out. But the amount of that "stocker" was afterwards paid to the widow of the deceased. As to the D., there was evidence that during the previous trips sums varying from 5s. 2d. to 16s. 8d. were received per head, the average per week being 5s. 6d. on the past voyages of the D. The County Court judge found that, as there was no "sto ker obtained at the date of the death of the fisherman, it could not be said that he was being remunerated by that; although if he had lived to the end of the voyage and had received a share of "stocker" different considerations would have arisen. On appeal:

Held, that the intention of sect. 7 (2) of the Workmen's Compensation Act 1906 was not that it must be first ascertained whether there were any profits or gross earnings of the working of the vessel in order to determine whether a member of the crew of a fishing vessel was remunerated by means of a share in such profits or gross earnings; and that in the present case it was quite irrelevant whether or not there was any 'stocker actually to be divided at the end of the voyage. Appeal allowed.

[Stephenson v. Rossall Steam Fishing Company Limited. Ct. of App.: Lord Cozens-Hardy, M.R., Swinfen Eady and Phillimore, L.JJ. Feb. 2-Counsel: Alexander Neilson and Greaves Lord; H. C. Davenport. Solicitors: Pritchard and Sons, agents for Weightman, Pedder, and Co., Liverpool; Indermaur and Brown, agents for C. W. Callis, Blackpool.] Employer and Workman-Injury by Accident-Compensation-"Industrial Disease "-Miner's Nystagmus-" Disease. tracted by gradual Process"-Evidence of previous Employers Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), ss. 1, 8 (1), (c) (iii.).

con

The applicant, who was employed in the respondents' colliery, suffered from miner's nystagmus, and his last employers were the respondents. There had been five colliery company employers altogether within the year. The compensation which the applicant was entitled to receive was ascertained and agreed. The only question was what were the rights of the four colliery companies prior to the last employers. Ore of those companies complained that they had not been properly treated. They proposed to give evidence to satisfy the County Court judge that the working arrangements at their colliery were so good and so far superior to those of the other collieries in question that it was not right that the last employers should simply bear a rateable proportion of the total sum, having regard only to the number of days or weeks in which the applicant was employed at their colliery. The County