As

that Act, included quit rents, Crown rents, heriots, and other rents and charges having their origin in tenure. It also excluded land tax, tithe rentcharge, and payments in lieu of tithes. we have seen, these ought to be excluded from the meaning of the word "incumbrance" in any event. Indeed, it is a somewhat striking thing how nearly this statutory method of definition by exclusion accords with the views set forth above with regard to liabilities which ought not to be regarded as primarily imported by the use of the word "incumbrance," for the Act goes on to exclude rights of common, rights of sheep walk, rights of way, watercourses and rights of water, and other easements.

The adoption of a statutory definition of terms as a method of defining the meaning of those terms is certainly not a legitimate method of defining those terms when used outside those statutes. Yet it is of interest to observe in what way the statutes make use of the terms in question. So, if we turn to the Settled Land Act 1882, we find that by sect. 21 capital money arising under the Act is to be applied in (amongst other ways) the discharge, purchase, or redemption of incumbrances affecting the inheritance or of land tax, rentcharge in lieu of tithe, Crown rent (whatever that may mean), chief rent, or quit rent, charged on or payable out of the settled land.

There have been some instructive decisions on the meaning of the word "incumbrance as used in sect. 21 of the Settled Land Act 1882. Thus, in Re Hodgson's Settled Estate; Altamont v. Forsyth (106 L. T. Rep. 456; (1912) 1 Ch. 784) it was held that the liability of the owners and occupiers to repair a highway ratione tenure is not an incumbrance within the meaning of the section. It appears to have weighed with Mr. Justice Neville, in coming to this conclusion, that this particular liability was uncertain in amount, uncertain as to the time at which it may be payable, and uncertain in duration in that the road authority might remove the liability by altering the quality of the road. Again, in Re Knatchbull's Settled Estates (53 L. T. Rep. 284; 29 Ch. Div. 588) certain drainage charges, charged by statute by way of rentcharge, the interest or rent on which the tenant for life was bound to keep down under the drainage statutes, were held not to be incumbrances within the meaning of the section. But the reason for this decision appears to have been that the charging statutes made no provision for redeeming the capital. In Re Frewen; Frewen v. James (59 L. T. Rep. 131; 38 Ch. Div. 383) a mortgage secured by a long term of years was held to be an incumbrance which might be cleared with capital money under the section.

Turning now to the statutory facilities for freeing incumbrances, on sales of the land on which the incumbrances exist and which cannot for some reason or other be removed, sect. 5 of the Conveyancing Act 1881 enacts that where land subject to any incumbrance, whether immediately payable or not, is sold, the court may, if it thinks fit, direct payment into court, in case of an annual sum charged on the land or of a capital sum charged on a determinable interest in the land, of such amount as, when invested, the court considers will be sufficient, by means of the dividend, to keep down or provide for the charge, and, in any other case of capital money charged on the land, of the amount sufficient to meet the incumbrance and the interest thereon. But in either case there is also to be paid into court such additional amount as the court considers will be sufficient to meet the contingency of further costs, &c., and any other contingency, but this additional except depreciation of investments,

amount, unless the court "for some special reason," otherwise orders it, is not to exceed one tenth part of the original amount to be paid in. The section empowers the court when the money is paid in, and if it thinks fit so to do, to declare the land freed from the incumbrance and to order a conveyance for giving effect to the sale.

In the recent case mentioned at the commencement of this article, the question arose as to the rights of persons interested in the incumbrance which had been discharged and the capital of which had been paid into court. The incumbrance was a charge for portions raisable at a future date. The capital when paid into court and invested represented a sum considerably in excess of the total amount of the portions. But in time the investments depreciated, and, when the persons entitled to the portions

petitioned the court for payment out, the funds in court did not amount in value to the sum of the portions. The question therefore arose with regard to the manner in which the deficiency was to be borne amongst those entitled to the shares in the capital representing the portions sum. In point of fact, immediately after the sale the proceeds had been resettled and were, at the time of the petition for payment out, still in the hands of the persons originally entitled to the land or their successors in title. On this petition for payment out, coming before Mr. Justice Sargant, his Lordship directed that a summons should be taken out to ascertain whether the effect of the order under sect. 5 was merely to clear the land in the hands of the purchaser from the portions charge, or whether the fund was left as the only security for the portions. The learned judge decided in favour of the first view. In his opinion the most equitable and proper construction to put on the sect on was that it operated to no greater extent than was necessary to enable a good title to be given to the purchaser, and that, so far as the proceeds of sale coull be traced, those proceeds were liable to meet the like burdens which the land itself would have been liable to meet had it not been sold.

Our comment on this decision is that it must have a considerable effect on the way in which the court will exercise its discretion in making an order for payment into court of the money in respect of the incumbrance. That discretion is on the face of the section a very wide one. It must now be regarded as an additional element to be considered, whether the proceeds of sale will or will not be available as an additional security for the incumbrances, in the event of a depreciation of the invested fund. If there appears to be a likelihood of the proceeds of sale being distributed before the incumbrancers are able to petition out the capital representing the incumbrance, then, no doubt, that might properly be regarded as a "special reason allowing a greater margin than the one-tenth margin mentioned in the section.

COMMENTS ON CASES.

" for

Injured Workmen Championed by Approved Societies. THE few decisions that have so far been pronounced by the Court of Appeal under sect. 11, sub-sect. 2, of the National Insurance Act 1911 (1 & 2 Geo. 5, c. 55) have received a useful addition in the shape of that in the recent case of Burnham v. Hardy (noted ante, p. 313). For its application to the position of injured workmen generally seems inevitable. An approved society with whom a person who is within that Act is insured may, if the assured unreasonably refuses or neglects to take proceedings to enforce his claim to compensation under the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), bring at its own expense an action in his name and on his behalf. Mere refusal or neglect, however, will not suffice. For the sub-section expressly prefixes "unreasonably" before "refuses or neglects." And were there any doubt on that point, it is effectually removed by what was laid down by the Court of Appeal in Rushton v. George Skey and Co. Limited (111 L. T. Rep. 700; (1914) 3 K. B. 706). For there the injured workman had informed the approved society that he had no intention of claiming compensation from his employers, expressing his opinion that the injury from which he suffered was not due to the accident which had happened to him. Thereupon the approved society commenced proceedings to recover compensation in the name of the workman, with the result above indicated. The meaning of "refuses or neglects" had been considered in the earlier case of Clapp v. Carter (110 L. T. Rep. 491). So, therefore, the learned County Court judge who had to deal with the case of Burnham v. Hardy (ubi sup) was not entirely without authority to guide him in the decision at which he thought pr per to arrive. There was no evidence that the injured workman had refused or neglected, reasonably or unreasonably, to take proceedings to recover compensation from his employer. All that transpired was that the workman was in the predicament that is unhappily only too commonly occupied by his genus. He did not possess the funds

to enable him to take proceedings. This being so, there was no alternative open to His Honour but to declare that it had not been made to appear that the workman had "unreasonably " refused or neglected to take proceedings. And that conclusion met with the unqualified approval of the Court of Appeal. The decision in Allen v. Francis (137 L. T. Jour. 380; (1914) 3 K. B. 1065) was discussed, and was confirmed in all respects, on the question of approved societies assisting injured workmen. It was there laid down, with all possible distinctness, that an approved society cannot of its own accord use the name of a workman except in the events and upon the terms mentioned in sect. 2, sub-sect. 2, of the National Insurance Act 1911. The present case further illustrates that view of the intention of the sub section.

"Perils of the Seas."

seas

A MORE than usually interesting variant on "perils of the "the accident in the recent case of Stott (Baltic) Steamers Limited v. Marten (111 L. T. Rep. 1027) would have proved to be if it had been held by Mr. Justice Pickford (as he then was), and subsequently by the Court of Appeal, to come within the wide meaning of those words that has been attributed to them by the House of Lords in several cases. But, as our report informs the reader, extensive as the judicial definition is, it could not be made to cover an accident simply because it was of a marine character and could only have occurred on a ship. Yet that was the foundation of the contention that the policy of marine insurance in that case rendered the underwriters liable for the damage caused to the ship in question. While she was lying in dock, a boiler, which was being lifted by a floating crane in order that it might be lowered into the hold of the ship, fell into her bottom owing to the pin of a shackle breaking. The accident was occasioned in a great measure by the fact that the pin of the shackle was not a fit and proper one. True it is that, according to the statement of Lord Herschell in Thames and Mersey Marine Insurance Company Limited v. Hamilton, Fraser, and Co. (57 L. T. Rep. 695; 12 App. Cas. 484), "perils of the seas" include "all damages of a character to which a marine adventure is subject." And Lord Justice Buckley in the present case did not fail to recognise the remarkable comprehensiveness of that phrase when he formulated in his own language what, it seemed to him consistently with authority, it meant. His Lordship suggested this: "A peril to which the assured would not be exposed if his adventure were not a maritime adventure." Confronted by that definition, well may one pause in a state of dubitation as to whether the accident in the present case did not come within the definition inasmuch as it could not have happened in any conceivable way other than in a maritime adventure. But a little reflection serves to remind one that it is not only into the holds of ships that boilers have to be lowered by cranes. Every factory may require a boiler for a steam engine. Furthermore, the accidental damage to the ship might just as easily have been brought about by the fall during lowering of some heavy mass of cargo. Be these conjectures as they may, however, it would need a vigorous stretching of "perils of the seas 99 to make it cover perils of a defective mechanical apparatus for lowering articles into the hold of a ship, for that, in truth, was what was responsible for the damage created in the present case. And as such it is a peril that ought to be specifically insured against, if deemed essential so to do.

Distribution of Assets among Debenture Stock-holders.

WHEN commenting last week upon the decision of Mr. Justice Horridge in Kuala Pahi Rubber Estates Limited v. Mowbray (see ante, p. 379), we had occasion to refer to what was laid down by the House of Lords in the well-known case of South African Territories Limited v. Wallington (78 L. T. Rep. 426; (1898) A. C. 309). If it was a curious application of the principle of the ruling of the House of Lords that became inevitable in the case before Mr. Justice Horridge, even more so was such application in the case recently before Mr. Justice Astbury of Re Smelting Corporation Limited (noted ante, p. 382). In certain respects, there was a marked resemblance between the facts of the two cases, accounting for the circumstance that in Second Sheet.

both the House of Lords' ruling came into operation. Failure to pay further payments due from debenture-holders after those payable on application and allotment gave rise in each case to the question that required determination. We need add nothing to what we had to say concerning Kuala Pahi Rubber Estates Limited v. Mowbray (ubi sup.). But we may perhaps be permitted again to remind the reader that, apart from specific performance by virtue of sect. 105 of the Companies (Consolidation) Act 1908 (8 Edw. 7, c. 69)—which is a reproduction of sect. 16 of the Companies Act 1907 (7 Edw. 7, c. 50)-there is no right to recover under debentures, having regard to the decision in South African Territories v. Wallington (ubi sup.). Inasmuch as in Re Smelting Corporation Limited (ubi sup.) the transaction all took place before the passing of the Act of 1907, specific performance was a remedy not available. That being so, there was, as Mr. Justice Astbury pointed out, no legal obligation on the debenture-holders to complete the payments due by them and thus make their debenture stock fully paid stock instead of being merely partly paid. On that ground, the learned judge was able to negative the contention that the case was governed by the doctrine of Cherry v. Boultbee (4 My. & Cr. 442, at p. 447). If the obligation of the debenture-holders to pay the calls made upon them was not a legal one in the sense of a debt-as, in the face of the decision in South African Territories Limited v. Wallington (ubi sup.), it cou'd not be successfully maintained that it was-the doctrine enunciated in Cherry v. Boultbee (ubi sup.) manifestly could not be craved in aid. The duty to make good to an estate that which is owing by any person having a claim against it before attempting to enforce that claim falls short of making good that which is not legally due, as in the case of a contract to lend money on debentures. Mr. Justice Astbury's decision, therefore, that the distribution of the assets of the company ought to be rateably among the various debenture-holders, paid in full or only partly paid, seems to be the only one that was capable of being pronounced.

Accidents "out of" Employment.

SUBTLE is the distinction between the principle upon which was decided the class of workmen's compensation cases of which Barnes v. Nunnery Colliery Company (105 L. T. Rep. 961; (1912) A. C. 44) and Plumb v. Cobden Flour Mills Company (109 L. T. Rep. 759; (1914) A. C. 62) are the leading examples on the one hand and Mawdsley v. West Leigh Colliery Company Limited (5 B. W. C. C. 80) and Chilton v. Blair (111 L. T. Rep. 782) on the other. So much is this so that the practitioner in this branch of the law is often sorely put to it to form a decided opinion within which class a case before him rightly falls. It will probably prove useful to him, therefore, to give the closest consideration to the two most recent of the cases in which the principle of the former class came strikingly into operation. They were Herbert v. Samuel Fox and Co. Limited (noted ante, p. 293) and Jibb v. Chadwick and Co. (noted ante, p. 312). There was not, in the view taken by the learned judges of the Court of Appeal -with the exception of Lord Justice Phillimore as regarded the first of those two cases-the remotest possibility of holding that the workman who was seriously and permanently disabled by an accident in Herbert's case (ubi sup.) and who met with his death in Jibb's case (ubi sup.) was doing an act that formed part of the work that he was employed to do, though doing it contrary to rules laid down, in such circumstances that in the one case he individually and in the other his dependant was entitled to claim compensation. In neither case was the defence of "serious and wilful misconduct," within the meaning of sect. 1, sub-sect. 2 (c), of the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), capable of being taken advantage of by the employer, because of the consequence of the accident in each proving so disastrous. Nevertheless, the accidents were decided not to have arisen "out of " the respective employments of the workmen. "In the course" thereof unquestionably they occurred. But the indispensable dual requirements were not satisfied. Perching himself on the buffer of a moving railway waggon, leaning on, and balanced solely by, a shunting pole which was liable to slip at any moment, and which it ultimately did, the workman in Herbert's case (ubi sup.) was doing what was regarded by the

Master of the Rolls (Lord Cozens-Hardy) and Lord Justice Swinfen Eady as similar to the act of the workman in Barnes' case (ubi sup.), and not to that of the workman in Mawdsley's case (ubi sup.) or Chilton's case (ubi sup.). So, likewise, the workman who attempted to enter a moving railway carriage was ruled by all the members of the Court of Appeal to have committed an act that placed his dependant outside the protection and benefit of the Act. The argument that the habit of entering trains while in motion was universal, and that in the present case it served the employer's own interests that the workman should not fail to travel by the particular train that he sought to board, were deemed unavailing, it will be seen from our note.

Distress Goods Comprised in a Hire purchase Agreement.

As is well known, sect. 1 of the Law of Distress Amendment Act 1908 (8 Edw. 7, c. 53) protects the goods of undertenants and lodgers and of "any other person whatsoever, not being a tenant of the premises, or of any part thereof, and not having any beneficial interest in any tenancy of the premises, or of any part thereof," against distress by the superior landlord, by enacting, in effect, that if any superior landlord should levy, or authorise to be levied, a distress on any goods of any undertenant, lodger, or any other person aforesaid, such undertenant, lodger, or other person aforesaid, may serve such superior landlord, or the agent employed to levy such distress, with a declaration in writing made by such person aforesaid setting forth that such immediate tenant had no right of property or beneficial interest in the goods distrained upon, and that such goods were not goods to which that Act was expressed not to apply, and, in the case of an undertenant or lodger, giving particulars of the rent due and to become due to his immediate landlord, and an undertaking to pay the same to the superior landlord until the arrears of rent in respect of which the distress was levied had been paid off. And by sect. 2, if the superior landlord, after having been served with such declaration (and an inventory of the goods referred to therein), proceeds with the distress, he is to be deemed guilty of an illegal distress. Sect. 4 provides that the Act shall not apply to (among other things) goods comprised in any hire-purchase agreement, or to goods in the possession, order, or disposition of the tenant by the consent and permission of the true owner under such circumstances that such tenant is the reputed owner thereof. In Hackney Furnishing Company v. Watts (106 L. T. Rep. 676; (1912) 3 K.B. 225), which in effect overruled London Furnishing Company v Solomon (106 L. T. Rep. 371), the relevant clause in the hirepurchase agreement was as follows: "In case any of the said rent [i e., of the furniture] shall be in arrear. . . or if the said articles shall be seized or taken under colour or in pursuance of any legal process, the owner shall thereupon without formal demand be entitled to resume possession of the said articles." The hirer being in arrear with his payments, the plaintiffs' solicitors gave him notice determining the agreement. Shortly afterwards the defendant, as agent for the landlord of the flat, distrained upon the goods for the rent. The plaintiffs thereupon served a declaration on the defendant under sect. 1 of the Act, but the defendant refused to give up the goods, unless the arrears of rent of the flat were paid. The plaintiffs paid the arrears of rent under protest, and brought an action in the County Court to recover it back as money received by the defendant to their use; and claimed, in the alternative, damages for illegal distress. Held (affirming the decision of the County Court judge), that the amount was not recoverable, as the hire-purchase agreement was still in existence, notwithstanding the notice contained in the letter from the plaintiffs' solicitors to the hirer; and that the goods were accordingly at the date of the distress comprised in a hire-purchase agreement within the meaning of sect. 4 of the Act, and that the distress was lawful. As pointed out in the judgment of the Divisional Court, the reason for sect. 4 would seem to be that the placing of goods where they could be distrained tends to induce the landlord to give credit to the tenant; and if a demand of possession by the owners is sufficient to make the goods no longer comprised in the hire-purchase agreement, there is no reason for the provision that the statute shall not apply to goods in a hire-purchase agreement. Until demand of possession,

goods comprised in a hire-purchase agreement are in the order and disposition of the tenant and come within the latter words. That case has been followed by the Divisional Court, and the Court of Appeal, in the recent case of Jay's Furnishing Company v. Brand and Co. (110 L. T. Rep. 108; 138 L. T. Jour. 162; (1914) 2 K. B. 132). There the relevant clause in the hire-purchase agreement was as follows: "If the hirer does not duly perform and observe this agreement the same shall ipso facto be determined and the hirer shall forthwith . . return the said goods to the owners, and the owners shall be entitled to retake possession of the same, as being goods wrongfully detained by the hirer, and for that purpose to enter on any premises where the goods may be." Held, that the case was really on all fours with Hackney Furnishing Company v. Watts, except that the relevant clause in the present case was stronger in favour of the plaintiffs, because it did not merely say that the owner should have power to determine the bailment, but on breach by the hirer the agreement should "ipso facto be determined," but that difference in the words made no difference in the result. No doubt some of the provisions in the agreement were determined, but not the whole of them, as, for instance, the right of the owners to retake possession of the goods and for that purpose to enter upon any premises where the goods might be. Sect. 4, however, would not apply to the case of a hire-purchase agreement letting a piano to the tenant's wife: (Rogers v. Martin, 103 L. T. Rep. 527; (1911) 1 K. B. 192, following Shenstone v. Freeman, 102 L. T. Rep. 682; (1910) 2 K. B. 84, as to which see the remarks of a correspondent, ante, p. 396.)

THE CONVEYANCER.

Tenant for Life and Remainderman-Trust to Convert with Power to Postpone Conversion-Income.

THE law is thus stated in Theobald on Wills, p. 553, 7th edit.: "Where a residue is given upon trust for sale and investment, and the income is then given to a tenant for life, the tenant for life is, in the absence of proper directions, only entitled-at any rate, so far as personalty is concerned-to such income as the estate would produce when converted and invested in accordance with the directions of the will." And at p. 555: "Power conferred upon trustees to postpone a sale, or to retain securities unconverted, will not alter the rights of tenant for life and remainderman," citing (among other authorities) Re Chaytor; Chaytor v. Horn (92 L. T. Rep. 290; (1905) 1 Ch. 233). Having regard to the recent decision of Mr. Justice Neville in Re Inman; Inman v. Inman (138 L. T. Jour. 141; (1914) W. N. 463), this latter statement will require modification. The facts of that case were shortly as follows: By a will in paragraph form by one clause thereof the testator gave all his real and personal estate to trustees upon trust for sale and conversion, and to hold the net residue of the proceeds thereof, as to one moiety upon trust to invest and pay the income to his wife for life, and after her death upon trusts similar to those declared as to the second moiety. And by the next clause he gave the other moiety upon trust for investment and payment of the income to his daughters for life with remainders over. By clause 9 he empowered his trustees to postpone the sale and conversion of his real and personal estate so long as they thought fit. Clause 10 was an investment clause, and by clause 11 he empowered his trustees to permit any personal estate invested at his decease upon any stocks, funds, and securities yielding income to continue in the same state of investment so long as they should think fit. At the time of the testator's death part of his estate consisted of some shares in two land companies in British Columbia, which were not investments authorised by the investment clause in the will. These companies speculated in land and paid large and uncertain dividends. Held, by Mr. Justice Neville, that the case was distinguishable from Re Chaytor, because here the power to postpone conversion and to retain investments were not merely subsidiary to the trust for conversion, but were distinct and independent powers, and that the tenants for life were entitled

to the whole income, notwithstanding the retained investments were of a wasting nature. In Re Chaytor the trust for sale and power to postpone sale and retain investments were consecutive and in one clause. The distinction is rather a fine one, but the decision in Re Inman is perhaps more in accordance with the probable intention of the testator than the decision in Re Chaytor. Where there is no trust for conversion, but a power for the trustees to retain existing investments without any direction as to the income thereof, the tenant for life is entitled to the income produced by retained investments of a permanent nature although speculatious or hazardous: (Re Sheldon, 59 L. T. Rep. 133; 39 Ch. Div. 50; Re Bates, 95 L. T. Rep. 753; (1907) 1 Ch. 22, fully paid-up shares in a colliery company; and Re Wilson; Moore v. Wilson, 96 L T. Rep. 453; (1907) 1 Ch. 394). But such a power has, in one or two cases, been held not to entitle the tenant for life to the income of wasting property, such as terminable annuities: (Porter v. Baddeley, 5 Ch. Div. 542). But the better opinion is that the tenant for life is entitled to the whole income of all investments retained under such a power, whether of a wasting or permanent nature. Thus in Gray v. Siggers (15 Ch. Div. 74) where part of the residuary estate of the testator consisted of leasehold houses held upon short terms, it was held that under a power to retain his property in the same state in which it should be at his decease, or to sell and convert the same as they should in their absolute discretion think fit, the trustees were at liberty to retain the short leaseholds for such period as they should think fit. It is true that the actual order made in that case was that the trustees were to be at liberty to retain the leasehold property in specie for such a period as they in their discretion might think fit; but the language of the judgment shows that the tenant for life was to enjoy the income of the leaseholds. That case was followed in Re Nicholson; Eave v. Nicholson (100 L. T. Rep. 877; (1909) 2 Ch. 211), where Mr. Justice Warrington decided (notwithstanding Porter v. Baddeley) that in cases of this kind there is no distinction, for the purposes of the application of the rule in Howe v. Earl of Dartmouth (7 Ves. 137), between unauthorised securities of a wasting and those of a permanent nature. The foregoing cases must be distinguished from Re Thomas (65 L. T. Rep. 142; (1891) 3 Ch. 482) and Re Godfree; Godfree v. Godfree (1914) 2 Ch. 110), in which it was considered there was, in effect, a gift of the income of what the trustees held for the time being, including that which in their discretion they retained.

Trust for or Power of Sale.

THE question whether a trust for sale or only a power of sale is conferred by a will or settlement is not infrequently a difficult one. In Re Hotchkys; Freke v. Calmady (55 L. T. Rep. 110; 32 Ch. Div. 408), where a testatrix gave all her real and personal estate to trustees" upon trust at their discretion to sell all such parts thereof as shall not consist of money," and to invest the net residue of the proceeds, and to stand possessed

65

It was a trust

of such real and personal estate, moneys, and securities upon trust to pay the rents and annual produce thereof to T. for life, and after her decease the testatrix devised and bequeathed "My said real and personal estate and the securities on which the same may be invested unto and to the use of V. C., his heirs, executors, administrators, and assigns for ever according to the nature and quality thereof respectively." held on appeal that the I will did not create for conversion, but only gave a power of sale. That decision turned on the form of the ultimate devise, and on the direction that "the rents" and annual produce were to be paid to the tenant for life. In Re Horne's Settled Estate (59 L. T. Rep. 580; 39 Ch, Div. 84), where the devise was of real estates to trustees upon trust for sale, but with a direction that the testator's M. Estate should not be sold until the expiration of twenty-one years from the date of his will, and that for the purpose of transmission the real estate was to be impressed with the quality of personalty from the time of his death, it was held by Mr. Justice North (and approved by the Court of Appeal) that there was no trust or direction for sale within the meaning of sect. 63 of the Settled Land Act 1882. In Re Goodall's Settlement; Fane v. Goodall (100 L. T. Rep. 223; (1909) 1 Ch. 440),

where the trust for sale (created by an ante-nuptial conveyance) was at the "request in writing" of the husband during his life, and after his death at the discretion of the trustees for the time being, and by the settlement of even date power was given to the husband by any deed exercising the power of appointment thereby given to him to direct that the land should not be sold under the trust for sale, but should go to the appointees thereof as real estate, it was held by Lord Justice Swinfen Eady (then Mr. Justice Swinfen Eady) that, as the trust for sale was one that might never arise, it was not a "trust or direction for sale" within sect. 63 of the said Act. His Lordship considered that the case was governed by Re Horne's Settled Estate. But in Re Crips; Crips v. Todd (95 L. T. Rep. 865), where a testator devised the residue of his real and personal estate, which included freeholds and short leaseholds, to trustees upon trust either to allow the same to remain in its state of investment at his decease, or as and when his trustees should in their absolute discretion see fit to realise and sell the same, and to invest the proceeds in trustees' securities, and to hold the investments, whether original or substituted, upon trust to pay the income to his wife during widowhood, reducible to a moiety on her remarriage, and subject to her life interest, the testator gave his residuary estate to his son, to be paid to him at certain age, with a gift over if he died under a certain age, it was held by Mr. Justice Kekewich that the words of the will created a trust for sale. A similar question came before Mr. Justice Astbury in Re Johnson; Cowley v. Public Trustee (138 L. T. Jour. 294; (1915) W. N. 45). There a testator by his will made in 1906 devised and bequeathed the residue of his real and personal property (except copyholds) upon trust to retain in the same state as at the time of his death, or, at such time and in such manner as his trustees should deem fit, to sell the same. And by clause 12 of his will he declared that his trustees might at their discretion postpone such sale, and that the income of his property until sale or conversion should be held upon the same trusts as were declared concerning the income of his trust estate. The will directed that the copyholds should be sold absolutely. In events which happened C. became tenant for life of the income of the residuary real estate, and the question arose whether there was a trust or direction for sale within the meaning of sect. 63, and it was held by Mr. Justice Astbury that there was such a trust or direction for sale. If we may say so, that appears to be a reasonably clear case.

Annuities.

THERE are times when it is impossible to follow out quite strictly the directions of a testator, and it is then necessary to consider how best to carry out the spirit of them. A testator naturally desires all the persons to whom he has made bequests to receive them, and with this laudable object the court may disregard some of the provisions of a will which would make this impossible. Thus in Re Dempster (noted ante, p. 384) there were bequests of legacies and annuities, and directions that a part of the estate should be appropriated to answer the annuities by the income thereof. If any annuity was assigned, charged, or incumbered, it was to cease. The estate was insufficient to pay the legacies in full and to set apart sufficient capital out of the income of which to pay the annuities in full. There is a natural prejudice against purchasing annuities, as, if the annuitants die soon, the capital expended in the purchase is lost to the estate. Still, it is possible that the life of the annuitant may exceed the estimated period, and then the estate will have profited by the purchase. There is a precedent for directing the purchase of an annuity under such circumstances, as Mr. Justice Warrington in Re Cottrell (102 L. T. Rep. 157; (1910) 1 Ch. 402) decided that he could disregard the literal directions of the testatrix as to appropriating a part of the estate to meet the annuity. "In my judgment," said his Lordship, "justice can be done to all three classes of persons interested by adopting the course suggested by counsel for the pecuniary legatees-namely, by valuing the annuity as at the date of the death of the testatrix according to the Government tables or upon actuarial principles, and treating the amount of the valuation as a pecuniary legacy and paying the pecuniary legatees in full and

the annuitant the amount of the valuation of his annuity, if he is willing to accept it, or invest it in the purchase of a Government annuity of £52, if he is not. There will thus remain a residue to which the residuary legatee will be entitled." The difference between the two cases was that in Re Dempster there was a provision preventing the assignment or incumbering of the annuity. It is quite correct to say that after an absolute gift a provision that the recipient shall not assign or incumber it is repugnant and void, and the counsel for the annuitant urged that the provision in this case was so. In Stokes v. Cheek (28 Beav. 620) Sir John Romilly said: "I have on several occasions held that annuitants are entitled to receive the money necessary to purchase their annuities. It would be an idle form to direct an annuity to be purchased which the annuitants might sell immediately afterwards." But those remarks applied to cases where there is a direction to purchase annuities and no restraint on the power of alienating them. In Jarman on Wills (6th edit.), p. 1496, it is stated that "where a sum of money is given to be invested in the purchase, in the names of trustees, of an annuity for the benefit of A. during his life, with a gift over on alienation, this gift over is effective. If, however, there is no gift over, but simply a declaration that in the event of the annuitant alienating his annuity, it shall cease as if he were dead, this, it seems, is merely in terrorem, and has no operation." The declaration in Re Dempster was that in the event of alienation, &c., the annuity should cease to be payable. There is not much difference between such a declaration and one that it shall cease as if he were dead, but Mr. Justice Sargant held that there was, in effect, a gift over to the residuary legatees. Accordingly the annuities must be purchased in the names of the trustees and would be paid to these annuitants until they did something to forfeit their interests. If and after they caused a forfeiture the annuities would be payable to the residuary legatees, presumably as capital since they represented an expenditure of capital.

Expenses out of Income.

THE draftsman of a will has often so many points to attend to that he cannot be expected to provide very minutely for the incidence of the costs of management. Still, a change of phraseology may have the effect of throwing costs naturally attributable to capital on to income, or conversely. In Re Tubbs (noted ante, p. 383) a testator gave an estate to trustees upon trust to pay the income to his wife for life, and he gave them powers of management and directed them to pay the costs of management out of the rents and profits. The trustees employed a qualified surveyor to examine the houses on the estate and prepare reports with a view to serving notices as to repairs on the lessees, and the question arose whether these expenses were payable out of capital or income. In Re M'Clure (95 L. T. Rep. 704) Mr. Justice Kekewich held that the costs of surveying and giving notices to repair were not outgoings, but expenses for the benefit of the estate, and must fall on capital. In Re Tubbs, however, the phrase "outgoings" was not used, but the costs of management were directed to be borne by income. Now it is clear that part of a proper management of an estate must consist in seeing that the property is kept in repair, and for this purpose it is necessary to have expert advice. Consequently, the costs of the surveyor were costs of management, and Mr. Justice Neville decided that they must be borne by the income.

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Master and Servant-Compensation-" Death results from Injury -Blow on Stomach-Subsequent Death from Peritonitis from Perforation of Bowel-Appendicitis-Workmen's Compensation Act 1906, sched. 1 (1) (a).

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Appeal by the widow of a coal-heaver from an order of the Court of Appeal reversing an award in her favour, in a claim for compensation tried before Judge Fossett Lock at Kingston-upon-Hull with a medical assessor. The deceased workman was employed by the respondents, who were hipowners, to coal a ship in dock, when there vas an unexpected rush of coal down the slide and he was hit in the stomach by the basket he was employed to fill with coal. At the infirmary he was found to be suffering from appendicitis of some weeks' standing, and the operation he underwent for that disclosed also a recent perforation of the bowel. Three days later the man died, and a post-mortem revealed a second perforation of old standing. The uncontroverted medical evidence was that death was due to peritonitis following on the second perforation, which could only have taken place within twelve hours of the first operation. The County Court judge found that the man died from an injury by accident arising out of and in the course of his employment, and that the death was caused in the sense of being accelerated by the injury in question. In the argument before this House the employers' counsel contended that there was no evidence of accident, and no evidence of its having either caused or hastened the man's death.

Held (Lord Parker and Lord Sumner dissenting), that there was evidence on which the County Court judge could find that death resulted from such accident. Appeal allowed.

[Woods v. T. Wilson and Sons and Co. Limited. H. of L.: Earl Loreburn, Lords Atkinson, Parker, Sumner, and Parmoor. Feb. 11 and March 1.-Counsel: Shortt, K.C. and E. H. Chapman; Adair Roche, K.C. and Neilson. Solicitors: N. H. Aaron; Botterell and Roche.]

Rates City of London-Statutory Exemptions-Land reclaimed from the River Thames-New and old Taxation-Poor Rate -County Rate-Educational Expenses-Equalisation Charge7 Geo. 3, c. 37, s. 51-County Rates Act 1852, s. 26—Local Government Act 1888, s. 68.

By sect. 51 of 7 Geo. 3, c. 37, it was provided that certain lands reclaimed from the river Thames should vest in the adjoining owners "free from all taxes and assessments whatsoever. The appellants desired to assess premises now erected on this reclaimed land to that part of the poor rate (amounting to 1s. 3d. in the pound) which had been raised by them for the educational expenses under the Education Act 1902, the equalisation charge under sect. 1, sub-sect. 5 (b), cf the London (Equalisation of Rates) Act 1894, and the sums required to be raised by the county council under sect. 68, sub-sects. 4 and 5, of the Local Government Act 1888, which were levied by means of county rates made under the County Rates Act 1852. By sect. 26 of the last mentioned Act precepts for the levy of the money required to be raised by the county rates were directed by county councils to the guardians, who raised the money in like manner as the money required by them for the relief of the poor. It was admitted by the rating authority that the occupiers of the premises (the respondents) were not liable to pay the poor rate as it stood, because that was a rate in existence when the Act of George III. was passed, but they said that the rate was divisible, and therefore the money for entirely new taxes imposed by Acts since that date did not fall within the exemption. The Court of Appeal (110 L. T. Rep. 796) decided that the respondents were clearly not liable to pay the poor rate as a whole and could not be made liable for any part of it.

Held, that as the exemption in the Act of 1767 applied to existing taxes and assessments or others substituted for them, and as it included the poor rate, it included every art of the poor rate, which was one indivisible rate, and the exemption therefore covered the levy in question, and the respondents were exempt.

[City of London Corporation v. Associated Newspapers Limited and others. H. of L.: Earl Loreburn, Lords Atkinson, Parker, Sumner, and Parmoor. Counsel: George Cave, K.C., Ryde, K.C., and G. Boydell Houghton; Sir Robert Finlay, K.C., Macmorran, K.C., and Konstam. Solicitors: City Solicitor; Rollit, Sons, Hill, and Compston, for W. E. Hart, Sheffield.]