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29. COSTS OF PASSING SUCCESSION DUTY ACCOUNTS AND ASSENT. I should be glad of an expression of opinion on the following points: (1) In winding up a deceased's estate it is the executors' duty to pass succession duty accounts, and naturally the executors' solicitor will do this. Can the costs come out of the residuary estate, or must the solicitor render a bill of costs to the beneficiary? (2) The executors' solicitor prepares a deed of assent relating to leasehold property. Should the beneficiary pay the cost of such assent ? PROCEDURE.


(Q. 25.) MORTGAGEE-EMERGENCY POWERS.-Is it so clear, as some of your correspondents suggest, that a mortgagee who is stopped by the Courts (Emergency Powers) Act 1914 from entering into possession of the mortgaged property or exercising his power of sale can nevertheless appoint a receiver under the Conveyancing Act 1881? Sect. 24 of the latter Act provides that a mortgagee may not appoint a receiver "until he has become entitled to exercise the power of sale conferred by this Act." The recent Act operates so that he is no longer "entitled to exercise the power of sale." Does it not therefore follow that until he is entitled to exercise the power of sale he has no power to appoint a receiver? BRISTOL.

(Q. 27.) INCOME TAX-DEATH-RATE. In framing the Finance Act 1914 Session 2), s. 12, the Legislature seems to have reasoned in this fashion: We intend as from the 5th Dec. to collect income tax and super-tax at double the present rates. Since the 4th Aug. incomes have dwindled on all hands, and the last third of the financial year will in most cases make a sorry show by comparison with the first two thirds. Let us, therefore (instead of actually doubling the tax in respect of income accruing or profits made during this last lean third), effect our object and incidentally simplify assessment and collection and improve our revenue by adding a third to the assessment for the whole year, thus tapping the two more prosperous thirds of the year. And the statute is evolved, I think, on this basis. In order to provide a particular revenue, certain things shall be done which will not produce the exact but an equivalent revenue far as may be." And, in my judgment, among the things which are to be done is the adding of a third to the assessment of the income of persons who died between the 5th April and the 5th Dec. last. GLAUCOPIS.



Lieutenant ARTHUR EDWARD SPARLING, 8th (Reserve) Cyclist Battalion Essex Regiment, died on the 19th ult. He was admitted in 1904, and was a member of the firm of Messrs. Sparling and Son, of Colchester and Brightlingsea.

Lieutenant ARTHUR ERNEST SIMPSON, Army Service Corps, was accidentally shot by a sentry at Torquay on the 24th Jan. He was admitted in 1897, and until recently practised in London. Lieutenant PERCY DALE KENDALL, 10th Battalion King's Liverpool Regiment (Liverpool Scottish', was killed in action on the 25th Jan. He was admitted in 1904, and was a member of the firm of Messrs. Banks, Kendall, and Taylor, of Liverpool. Lieutenant FRANCIS PEMBERTON GREENER, 4th Battalion East Surrey Regiment, has been killed in action. He was admitted in 1908, and practised at 52, Bedford-row, W.C.

Lieutenant JOHN ARTHUR HUGHES, 4th (Denbighshire) Battalion Royal Welsh Fusiliers, was killed in action on the 27th Jan. He was admitted in 1909, and practised at Ruthin, where he was a member of the staff of Messrs. Johnson and Brundritt.

Mr. EDWARD ARCHIBALD WILLETT, who was serving as a private in the 23rd (Service) Battalion Royal Fusiliers (Sportsman's Battalion), died at Grey Towers Camp, Hornchurch, on

the 9th Feb. He was admitted in July 1902, and was a member of the firm of Latter and Willett, of Bromley, Kent.

Mr. ROBERT HART, solicitor, late of the firm of Burton, Yeates, and Hart, London, died on the 26th ult., aged eighty-one. Mr. Hart was admitted in 1860. He became a partner in the abovementioned firm in 1861 and retired in 1903. We regret that the

particulars we gave last week were inaccurate.

Mr. ALPHEUS HENRY ROBOTHAM, the head of the well-known firm of Derby solicitors, Robotham and Co., died on the 7th inst. at his residence, The Limes, Kedleston-road, aged eighty-one. Mr. Robotham was admitted in 1857, succeeding in due course to He acted as a practice established by his father before him. under-sheriff for the late Mr. Newton, of Mickleover Manor, in 1882, for Mr. John Harrison, of Snelston, in 1883, and for Mr. W. G. Turbutt, of Ogston Hall, in 1885; his firm have been twice acting under-sheriffs-for Mr. William Arkwright in 1890, and Mr. F. C. Arkwright in 1887.

Mr. JOSEPH WILFRED STANTON, solicitor, of the firm of Messrs. Morgan, Francis, Stanton, and Parnall, of King's Chambers, High-street, Newport, and also of Chepstow and of Mathern House, near Chepstow, died at Bath, aged sixty. Mr. Stanton was registrar to the Chepstow County Court, and also held the office of clerk to the Rural District Council. He was a member of the Law Society, of the Solicitors' Benevolent Association, of the Monmouthshire Law Society, and of the Association of County Court Registrars.

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To surrender at the High Court of Justice, in Bankruptcy. MILLER AND SMITH, Shaftesbury-av, tailors. March 3. MYERS, ISRAEL, St. Mary's-mansions, Paddington, gentleman. March 3:

To surrender at their respective District Courts. CARTER, ELIAS, jun., Bedford, fishmonger. Ct. Bedford. March 3. EMERY, THOMAS, Birmingham, baker. Ct. Birmingham. March 3. FRANKLIN, GEORGE RICHARD, late Wrawby, farmer. Ct. Great Grimsby. March 1.

GLOVER, WILLIAM JAMES, Leicester, motor engineer. Ct. Leicester March 2.

HATFIELD, GEORGE ROBERT, Sudbury, baker. Ct. Colchester. March 2.
HYDE, JAMES, Margate, restaurant keeper. Ct. Canterbury. March 1.
LAUNDER, MARY CATHERINE VAUGHAN, late Sandhurst, widow. Ct.
Gloucester. March 1.

LAWRENCE, MATTHEW, Sheffield, late grocer. Ct. Sheffield.
LEE, ARTHUR WILLIAM. Wolverhampton, pawnbroker.

March 1.
Ct. Wolver

hampton. March 2. MATTHEWS, BERTIE WALTER, Sherborne, plumber. Ct. Yeovil. March 2 METCALFE, ROWLAND, Dewsbury, plumber. Ct. Dewsbury. March 1. NIESE, RUDOLPH CARL ALEXANDER (trading as Rudolph Niese), Notting.. ham, tailor. Ct. Nottingham. March 2.

PEAKE, THOMAS, Nottingham, boot dealer. Ct. Nottingham. March 1.
PEDLEY, ROBERT, Sowerby Bridge, late publican. Ct. Halifax. March 2.
PREECE, WILLIAM HOWARD, Coventry, butcher. Ct. Coventry. March 2.
ROWELL, ALFRED, Coningsby, baker. Ct. Lincoln. March 1.
TANSLEY, HERBERT, Crowland, baker. Ct. Peterborough. March 2.
THOMASSEN, WILLIAM H., Chiswick, publisher. Ct. Brentford. March 2.
VAN DAMM, VIVIAN (trading as St. Peter's Garage), Lee, garage pro-
prietor. Ct. Greenwich. March 2.
WOODCOCK, WILLIAM J., Birmingham, insurance agent. Ct. Birming-
ham. March 1.

WOMBWELL, JAMES HENRY, Nottingham, late painter. Ct. Nottingham.
March 1.


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BAKER. GEORGE FRANK, Lower Edmonton, plumber. Ct. Edmonton. March 5.

BEYNON, WILLIAM, Mountain Ash, miner. Ct. Aberdare and Mountain Ash. March 4.

BLISS, FLORENCE FRANCES, late Great Yarmouth, stationer, widow. Ct. Great Yarmouth. March 1.

BRADFIELD, JOSEPH JOHN, Kingston-upon-Hull, butcher. Ct. Kingstonupon-Hull, March 4.

BRADLEY, WILLIAM JOHN, Leamington Spa, basket maker. Ct. Warwick.
March 4.

CLAYTON, JAMES, Leeds, fried fish merchant. Ct. Leeds. March 5.
DAVIES, SAMUEL, Pontycymmer, tailor. Ct. Cardiff. March 4.
FLETCHER, ALFRED JOHN HUGH, Eastbourne, dental practitioner. Ct.
Eastbourne and Lewes. March 4.
GARDNER, GEORGE WILLIAM, Southsea, tailor. Ct. Portsmouth. March 4.
HARRIS. WILLIAM, Swansea, ironmonger. Ct. Swansea. March 4.
HOLMES, WILLIAM, Bridlington, hairdresser. Ct. Scarborough. March 5.
JONES, HARRY PERCY, Stoke-upon-Trent, chemist. Ct. Stoke-upon-Trent
and Longton. March 5.

KIRKLEY, THOMAS CHRISTIAN ISRAEL (trading as T. C. Kirkley and Co.),
Stockport, manufacturer of toilet preparations. Ct. Stockport,
March 4.
MOCALLISTER, HERBERT ALEXANDER, Bolton, confectioner. Ct. Bolton,
March 3..
Ct. Burton-on-Trent.

MADDOCKS. ALFRED, Burton-on-Trent, builder.

March 4.

MARSH, RICHARD JOHN, Newmarket, trainer of race horses. Ct. Cambridge. March 6.

METELSKI, JEAN, late North Blackpool, ladies' hairdresser. Ct. Bangor March 6.

MITTELL, ALFRED JAMES, Downe, butcher. Ct. Croydon. March 5. PARRINGTON, THOMAS, Stone, brewery company's secretary. Ct. Stafford. March 4

RODGERS, SIDNEY ERNEST, Totnes, boot dealer. Ct. Plymouth. March 4. SCALES. WILLIAM (trading as Scales' Stores), Great Yarmouth, grocer. Ct Great Yarmouth. March 5.

TRUMAN, WILLIAM ALFRED, Torquay, boot dealer. Ct. Exeter. March 4.
WALKER, FRANK HOBSON, Brigg, commission agent. Ct. Great Grimsby.
March 5.

WATKINS, DANIEL, Lampeter, solicitor. Ct. Carmarthen. March 6.
WHITELEY, DYSON, Huddersfield. journeyman cotton
Huddersfield. March 4.

spinner. Ct

WILSON, TIMOTHY, Hartlepool, master printer. Ct. Sunderland, March 5. WOOD, OFFORD, Halstead, cycle agent. Ct. Colchester. March 4.


CLIFFORD, HORACE WILLIAM, Horsham, antique furniture dealer. Ct Brighton. March 1.

CURZON, STUART ALFRED, late Victoria-st, Westminster. Ct. High Court. March 3.

EMERY, THOMAS, Birmingham, baker. Ct. Birmingham. March 3. FRANKLIN, GEORGE RICHARD, late Wrawby, farmer. Ct. Great Grimsby. March 1.

GLOVER, WILLIAM JAMES, Leicester, motor engineer. Ct. Leicester. March 2.

HATFIELD, GEORGE ROBERT, Sudbury, baker Ct. Colchester. March 2. HOWELL, ORICE ALFRED (trading as C. Howell and Co.), Harp-la, printer. Ct. High Court. March 3.

HYDE, JAMES, Margate, restaurant keeper. Ct. Canterbury. March 1. KENNARD, ERNEST COLERIDGE HEGAN, late Walton-on-Thames. Ct. High Court. March 3.

LAWRENCE, MATTHEW, Sheffield, late grocer. Ct. Sheffield. March 1. LFE, ARTHUR WILLIAM, Wolverhampton, pawnbroker.

hampton. March 2.

LEE, CEDRIC, Shoreham. Ct. Brighton. Feb. 26.

Ct. Wolver

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MATTHEWS, BERTIE WALTER, Sherborne, plumber. Ct. Yeovil. March 2. MITCHINSON, MARGARET MARIA CLEMENTS, Brighton, school mistress, spinster. Ct. Brighton. Feb. 26.

March 2.

NIESE, RUDOLPH CARL ALEXANDER (trading as Rudolph Niese), Notting-
ham, tailor. Ct. Nottingham. March 2.
PEAKE, THOMAS, Nottingham, boot dealer. Ct. Nottingham. March 1.
PEDLEY, ROBERT, Sowerby Bridge, late publican. Ct. Halifax. March 2.
PREECE, WILLIAM HOWARD, Coventry, butcher. Ct. Coventry.
ROWELL, ALFRED, Coningsby, baker. Ct. Lincoln. March 1.
TANSLEY, HERBERT, Crowland, baker. Ct. Peterborough. March 2.
WHITE, CHARLES, Dewsbury, baker. Ct. Dewsbury. Feb. 26.
WILLOWS, JOSEPH THOMPSON, Cardiff, dentist. Ct. Cardiff. March 2.
WOMBWELL, JAMES HENRY, Nottingham, late painter. Ct. Nottingham.
March 1.

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BRADFIELD. JOSEPH JOHN, Kingston-upon-Hull, butcher. Ct. Kingstonupon-Hull. Marah 4.

BRADLEY, WILLIAM JOHN, Leamington Spa, basket maker. Ct. Warwick.
March 4.

CLAYTON, JAMES, Leeds, fried fish merchant. Ct. Leeds. March 5.
DAVIES, SAMUEL, Pontycymmer, tailor. Ct. Cardiff. March 4.
GARDNER, GEORGE WILLIAM, Southsea, tailor. Ct. Portsmouth. March 4.
GODWIN, JAMES HERBERT (late trading as James Godwin and Co.), Grand-
av, Leadenhall Market, meat salesman. Ct. High Court. March 3.
HARRIS, WILLIAM, Swansea, ironmonger. Ct Swansea. March 4.
HOLMES, WILLIAM, Bridlington, hairdresser. Ct. Scarborough. March 5.
HORWITZ, RAPHAEL (described in the receiving order as Ray Horwitz),
Panton-st. Ct. High Court. March 5,

JONES, HARRY PERCY, Stoke-upon-Trent, chemist. Ct. Stoke-upon-Trent
and Longton. March 5.
KIRKLEY, THOMAS CHRISTIAN ISRAEL (trading as T. C. Kirkley and Co.),
Stockport, manufacturer of toilet preparations. Ct. Stockport.
March 4.
MCCALLISTER, HERBERT ALEXANDER, Bolton, confectioner. Ct. Bolton.
March 3.

MADDOCKS. ALFRED, Burton-on-Trent, builder. Ct. Burton-on-Trent.
March 4.
METELSKI, JEAN, late North Blackpool, ladies' hairdresser. Ct. Bangor.
March 6.

MITTELL, ALFRED JAMES, Downe, butcher. Ct. Croydon. March 5.

PEART, JOSEPH FREDERICK, Biddulph-mansions, Elgin-av, Maida Vale, medical practitioner. Ct. High Court. March 5.

REYNOLDS, FLORENCE JANE (late trading as T. H. Summerton), Birmingham, late corn factor. Ct. Birmingham. March 5.

ROBERTSON, ROBERT TAYLOR DOUGLAS, Broad-st-av, accountant. Ct. High
Court. March 4.

SANDGROUND, MAURICE, Wardour-st. Ct. High Court. March 3.
SCALES. WILLIAM (trading as Scales' Stores), Great Yarmouth, grocer.
Ct. Great Yarmouth. March 5.

SHIPMAN, THOMAS THORNTON (trading as Thomas Shipman), Nottingham, lace maker. Ct. Nottingham. March 5.

THOMASSEN, WILLIAM HOPWOOD, Chiswick, publisher. Ct. Brentford.
March 5.

VAN DAMM, VIVIAN (trading as St. Peter's Garage). Lee, garage pro-
prietor. Ct. Greenwich. March 5.
WALKER, FRANK HOBSON, Brigg, commission agent. Ct. Great Grimsby.
March 5.
WHITELEY, DYSON, Huddersfield, journeyman cotton spinner. Ct.
Huddersfield. March 4.

WILSON, TIMOTHY, Hartlepool, master printer. Ct. Sunderland. March 5.
WOOD, HENRY, Nottingham, lace dresser. Ct. Nottingham. March 3.
WOOD, OFFORD, Halstead, cycle agent. Ct. Colchester. March 4.

Amended notice substituted for that published in Gazette, March 2 PLEVIN, ARTHUR, Bidford-on-Avon, grocer. Ct. Warwick. Feb. 27.

ADJUDICATIONS ANNULLED. GAZETTE, MARCH 5. EICHENBRENNER, CHARLES HUGO (commonly known as Charles Hugo), Paternoster-row, teacher of languages. Ct. Edmonton. Feb. 15. GAZETTE, MARCH 9.

NIESE, RUDOLPH CARL ALEXANDER (trading as Rudolph Niese), Nottingham, tailor. Ct. Nottingham. March 4.



GAFFNEY. On the 1st inst., at 86, O'Connell-st, Limerick, the wife of
James S. Gaffney, Crown Solicitor, of a daughter.

MORTON-MEECH.-On the 25th ult., at South Milford, Yorkshire, Johr
Stewart Morton, Leeds, to Margaret Mary. daughter of Thos. Cox
Meech, Barrister-at-law, Middle Temple.



On the 26th ult., at his residence, 8, Ulva-rd, Putney. S.W. Robert Hart, Solicitor, aged 81. LLOYD. On the 25th ult., at Yewcroft, Wotton-under-Edge, Glos, Evelyn Charles Lloyd (of the firm of Goldingham and Lloyd, Solicitors. Wotton-under-Edge), aged 46.

ROBOTHAM. On the 7th inst., at his residence, The Limes, Derby, Alpheus Henry Robotham, Solicitor, in his eighty-second year.











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War Legislation Supplement


The Laws of England.

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The new SUPPLEMENT to 'THE LAWS OF ENGLAND" incorporates and supersedes all previous Supplements.

It will be found to contain in a compendious form an account of the legislation and the case law which has come into existence since the publication of the respective volumes, and by using this single volume, the whole of "THE LAWS OF ENGLAND" will be absolutely complete and up-to-date to the beginning of the year.

In addition to all the ordinary legislation, THE EMERGENCY LEGISLATION called into being by the present War is specially dealt with. The practitioner will find himself guided, for example, through the intricacies of the LAW OF TRADING WITH THE ENEMY, or through the maze of the DEFENCE OF THE REALM Regulations. The MORATORIUM, the COURTS (EMERGENCY POWERS) ACT, and other measures will be found to be treated they noted under the various subjects which respectively affect.


The Law as to ALIEN ENEMIES has grown in the last few months by the addition of a larger number of cases than at any time since the days of Napoleon. The practitioner will find these duly noted under the subject of "Aliens" and the other subjects of English Law to which they relate.

The important developments of PRIZE LAW will be found at this moment to be of particular interest. In short, no effort has been spared to render this Supplement a complete and compendious resume of the recent developments of The Laws of England.

BUTTERWORTH & CO., Bell Yard, Temple Bar, W.C.

To Readers and Correspondents.


All communications must be authenticated by the name and address of the writer, not necessarily for publication, but as a guarantee of good faith. Anonymous communications are invariably rejected. All communications intended for the Editorial Department should, in EDITOR OF THE LAW order to prevent delay, be addressed to the TIMES." Any contributions that may be sent on approval will be carefully considered by the Editor; but no responsibility whatever can be accepted in respect thereof, although, if unsuitable, every effort will be made to return them, provided that a stamped addressed wrapper is inclosed for that purpose.

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£2 16 6 For Half a Year, Inland 300 Foreign and Colonial


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Portfolios for preserving the current numbers of the LAW TIMES, price
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Advertisements ordered for a series of three insertions are charged 10 per cent. under scale, and for six or more insertions 20 per cent. under Paragraph Advertisements 1s. per line, minimum 59. No series discount advertisers whose reference is under initials to this office, should remit 6d additional to defray postage in transmitting replies to their Adver tisements.

Advertisements must reach the office not later than five o'clock on Thursday afternoon, and must be accompanied by a remittance Post-Office Orders payable to the FIELD & QUEEN (HORACE COX) LTD.

Vol. 133 No. 3755

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HOUSE OF LORDS. COMMISSIONERS OF INLAND REVENUE v. SOUTHEND-ON-SEA ESTATES COMPANY. - Revenue - Undeveloped land duty-Building land GOVERNING BODY OF WESTMINSTER SCHOOL v. REITH (Surveyor of Taxos). Revenue Inhabited house duty-Public school............ 91 SUPREME COURT OF JUDICATURE. COURT OF APPEAL. AUSTER LIMITED . LONDON MOTOR COACH WORKS LIMITED.- Contract -Goods sold and delivered DOBSON AND ANOTHER v. HORSLEY AND ANOTHER. - Negligence Dangerous premises...... BURRELL AND SONS v. F. GREEN AND Co. Ship Charter-party-Loss of time-Cesser of hire


Re TRAFFORD'S SETTLED ESTATES.Settled land Annuities charged thereon


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COURT OF CRIMINAL APPEAL. REX . SAGAR.- Criminal law- False pretences REX v. SYME. Libel



135 136




ARTICLES. The Naval Order in Council-Trust Funds and the












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OUNTY COURTS-Sittings of the
















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Foreign, AND


SETTLED MARYON WILSON'S ESTATES; MARYON WILSON v. Du CANE.-Settled estate- Revenue 111 PRINCESS THURN AND TAXIS บ. MOFFITT.-Alien enemy-Registration-Right to sue ODDENINO v. METROPOLITAN WATER BOARD. ResWater supply taurant-Domestic purposes BEYFUS AND OTHERS v. WESTMINSTER CORPORATION. - London - Metropolis management - Streets JAMES ROSCOE (BOLTON) LIMITED V. WINDER. - Banking account Trust funds fixed with private moneys





COLONIAL LAW.-Topics GENERAL INTELLIGENCE.-The Naval Order in Council - Heirs at Law and Next of Kin-Appointments under the Joint Stock Winding up Acts- Creditors under Estates in Chancery-Creditors under 22 & 23 Vict. c. 35

LAW SOCIETIES.- Royal Courts of Justice and Legal Temperance Society-Medico-Legal Society


KING'S BENCH DIVISION. ROBINSON AND Co. v. CONTINENTAL INSURANCE COMPANY OF MANNHEIM.-Insurance (marine) DURRELL V. GREAD.- Landlord and tenant- Moratorium Non-payment of rent...... SUNDERLAND v. GLOVER.-County Court-Equity jurisdiction WAKEFIELD v. DUCKWORTH AND Co. -Solicitor and client - Principal and agent


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dents' Societies

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LEGAL OBITUARY. Mr. Valentine William Somers Browne Mr.

Drawbridge - Mr.

John George


Dimock - Mr. Frederick BurrowMr. Henry William Chapman COURT PAPERS.- Rota of Registrars 469 THE GAZETTES......





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TANY LIMITED (apps.) v. H. DEF-
RIES AND CO. (resps.).- Contract... 131

The Law and the Lawyers

The Army Libel.

It will surprise no one that the Court of Appeal has unanimously allowed the appeal of Sir EDWARD WARD, formerly Secretary to the War Office and the Army Council, against the verdict and judgment in the action for libel brought by Major ADAM against him. Clearly the occasion was privileged, for the letter written by Sir EDWARD WARD to the plaintiff on the orders of the Army Council was undoubtedly written in the discharge of a public duty, and no evidence of malice existed. The other points that arose were whether there was a right to publish this letter, and, if so, whether such publication was wider than was right and proper. Lord Justice BUCKLEY concisely deals with them in his judgment in a way that is unanswerable. He said :

The plaintiff had publicly attacked Major-General Scobell in his character of an officer in the army in the matter of acts which he did as such. The question whether the plaintiff justly attributed to Major-General Scobell that he had rendered reports which contained wilful and deliberate misstatements of fact and whether he had thereby deceived those in authority was one of public interest to all persons interested in the character of officers in His Majesty's army and was one upon which they were justly entitled to information.

Major-General Scobell, from his position as an officer, was not himself personally at liberty to reply publicly to that attack. The Army Council had investigated the matter, and had found that

the attack upon Major-General Scobell was wholly unjustifiable. They owed, I think, the duty of communicating to the public the antidote to the poison which Major Adam had administered. The subject-matter was of public interest; the public were persons rightly interested in receiving the information; the Army Council were persons who owed the duty of communicating it.

But it is said the publication was made to a public larger than that which was entitled to receive it; that the privilege was lost by excess of publication. In my opinion, this is not so. The facts upon this part of the case on which reliance was placed are that the publication was not confined to the United Kingdom, but extended to the colonies, and that it was made to certain firms of army agents. The public interested in this matter is not, I think, confined to the public in the United Kingdom; it extends to all those who are interested in matters vitally affecting the military forces of the Crown. This extends to all subjects of the Crown. Further, the plaintiff's speech was delivered in such circumstances that it might well reach all such members of the public as would be reached by the publication made of the defendant's libel.

Questions for the Court in Libel.

THE judgments point out in quite plain terms what questions are for the judge in cases of this description, where the sole defence is privilege. Granting the communication can be defamatory, it is for the judge to determine whether the subject-matter is of public interest, and whether a duty exists to make the communicationthat is to say, whether the occasion is privileged. It is then for the court to rule whether there is evidence any of malice to destroy the privilege thus created, and, if any such evidence exists, then the matter is for the consideration of the jury. No doubt disputed questions of fact, to enable the judge to rule, are properly left to the jury, but the functions of both judge and jury are

clear and distinct.

Commercial Transactions and the Moratorium.

THE judgment of Mr. Justice SANKEY in Happe v. Manasseh lays it down that the moratorium proclamations do not apply to c.i.f. contracts, but that they only apply where the payment is a naked one and not where there is a stipulation that to obtain documents of title the purchaser must perform the condition precedent of payment. To have held otherwise would have had somewhat startling results, for the proclamations, as Mr. Justice SANKEY pointed out, were merely to postpone payments and not to alter contracts. The same learned judge in Barnard v. Foster held that the Stock Exchange Committee have no power to postpone or advance the date of completion of a contract, and cannot alter the terms of the contract itself. Therefore, where shares were bought by a broker for a client for the mid-August account, the Stock Exchange Committee could not by rule alter the date and postpone the completion, and so, as the moratorium proclamations applied, the duty of the client being to put the broker in funds, there was a payment due on that date and interest was payable.

THE NAVAL ORDER IN COUNCIL. THE Order in Council which was issued on Monday last pursuant to Mr. Asquith's statement in Parliament on the 1st March, coupled with the notification of special arrangements as to cotton consigned to neutral ports, confirms the correctness of what was said in these columns last week as to our attitude with reference to the trade of America and other neutral States. There will be no interference beyond what is requisite to carry out our policy of bringing to bear on Germany the strictest economic pressure, but we shall insist on our rights to the full extent necessary for

the accomplishment of our purpose. The preamble to the Order in Council (the full text of which is given in another part of this issue (post, p. 465) defines our object as being "to prevent com. modities of any kind from reaching or leaving Germany," but the measures we are taking "will be enforced without risk to neutral ships or to neutral or non-combatant life, and in strict observance of the dictates of humanity." We are, in effect, putting into operation the principles of blockade and continuous voyage with the exception that we shall not enforce against ships or cargoes the usual penalty for breach of blockade. We shall not confiscate them, but merely divert them. We shall detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin, but (as Mr. Asquith pointed out) it is not intended to confiscate such vessels or cargoes unless they would be otherwise liable to confiscation. The application of the doctrine of continuous voyage necessarily affects the rule laid down by the Declaration of Paris that the neutral flag covers enemy's goods. The conditions of the present war are without precedent. Account has to be taken of facilities for transport from neutral ports to enemy territory, and of the fact that in that territory the Government has assumed control of supplies. Moreover, shipping is confined by our command of the sea to restricted channels. The method of blockade must necessarily be different from formerly, and the question of ultimate destination assumes increased importance.

We have given ample notice, we have clearly indicated where the blockade will be enforced, and we have taken measures to make it effective. The Order in Council defines the position precisely, but does not really add anything to Mr. Asquith's declaration. It was not to be expected that it would. It concludes with a provision for relaxation of its provisions in respect of the ships of any country which declares that no commerce intended for or originating in Germany or belonging to German subjects shall enjoy the protection of its flag. This and the special arrangements as to cotton are as far as we can be expected to go in meeting the interruption which may be caused to American trade. There will be no question of the confiscation of cotton cargoes which may come within the scope of the Order in Council, and certain shipments to neutral ports complying with conditions which have been made public will be allowed free passage in order that Americans who have contracted for delivery of cotton to neutral countries in Northern Europe may fulfil their contracts. As Sir Edward Grey observed in a note addressed to the American Ambassador on the publication of the Order in Council, subject to the paramount necessity of restricting German trade, His Majesty's Government have made it their first aim to minimise inconvenience to neutral com


In sharp contrast with our procedure is the lawless conduct of the commander of the German auxiliary cruiser Prinz Eitel Friedrich, which has sunk a number of defenceless merchantmen, and put into an American port with their crews, including the crew of the American sailing ship William P. Frye. This vessel was carrying a cargo of wheat from Seattle to Queenstown, and was sunk by the German cruiser in the South Atlantic. It is recognised by the universally acknowledged principles of international law that all prizes ought, if possible, to be brought into court and adjudicated upon by a Prize Court. Only exceptional circumstances will justify the destruction even of enemy merchantmen, and in the case of neutral merchant vessels scarcely any circumstances make destruction justifiable. Some of the Powers have claimed the right of destroying neutral ships in special circumstances, but we have always held that in the case of a neutral ship, or in case of doubt as to nationality, if the prize cannot be brought in it should be dismissed. At the second Peace Conference at The Hague we tried without success to obtain general recognition for this rule. The gross breach of established international practice committed in the sinking of the William P. Frye has aroused much popular indignation in America, but, as in the previous cases of the Evelyn and the Carib, destroyed by German mines, the American Government does not appear to be adopting a very firm line.


ONE of the minor mischiefs created by the war-minor only in comparison is the great difficulties which attend the investment and realisation of trust funds. A state of circumstances now exists which has never before existed since the development of the rules of equity concerning trusts. Circumstances now exist under which the strict adherence to the express provisions of the trust instrument may cause untold hardship upon beneficiaries. A forced sale of anything at any time notoriously predicates a bad bargain. A forced sale at the present time may mean ruin for someone. In this article we shall consider how far the present circumstances affect the position of trustees with regard to the sale and investment of their trust funds.

We ought, perhaps, to commence by reviewing the general canons which have from time to time been laid down concerning the duties of a trustee as regards the investment of his trust property. As a general rule, the law requires of a trustee no higher degree of diligence in the execution of his office than a man of ordinary prudence would exercise in the management of his own private affairs. That proposition was laid down in those words by Lord Watson in the important case of Learoyd v. Whiteley (58 L. T. Rep. 93; 12 App. Cas. 727, at p. 733), and his Lordship then proceeded to qualify it, by stating that a trustee is not allowed the same discretion in investing the moneys of the trust as if he were a person sui juris dealing with his own estate. "Business men," said his Lordship, "of ordinary prudence may, and frequently do, select investments which are more or less of a speculative character; but it is the duty of a trustee to confine himself to the class of investments which are permitted by the trust and likewise to avoid all investments of that class which are attended with hazard."

It would not be right, therefore, to say that a trustee in investing trust property need only take the same care as an ordinary prudent man of business would take in investing his own money. Not only must he act within the scope of his investing powers, but he must act with the fact in mind that he is a trustee. This was expressed by Lord Justice Lindley when the case cited above was before the Court of Appeal. "The duty of a trustee," said his Lordship, "is not to take such care only as a prudent man would take if he had only himself to consider; the duty rather is to take such care as an ordinary prudent man would take if he were minded to make an investment for the benefit of other people for whom he felt morally bound to provide."

Nearly every trust instrument, of course, expressly defines the scope and range of the investments. As well as this there are the well-known provisions of sect. 1 of the Trustee Act 1893. That section provides that a trustee may, unless expressly forbidden by the instrument (if any) creating the trust, invest any trust funds in his hands, whether at the time in a state of investment or not, in or upon the investments there specified. The investments there specified include, amongst many others, any stocks, funds, or securities for the time being authorised for the investment of cash under the control or subject to the order of the High Court. If the moneys to be invested are capital moneys arising under the Settled Land Acts, the scope of investment is regulated by sect. 21 of the Settled Land Act 1882. But it does not at all follow that, merely because an investment falls within the express scope of investment, a trustee can properly choose that particular form of investment. To invest outside the scope would, of course, be a breach of trust; but non constat that to invest inside the scope would not be a breach of trust. It would appear that the fact that the investment is within the scope or range of investments allowed by the trust instrument throws the onus on the beneficiary, who calls the propriety of the investment into question to prove that the inveзment was in fact improper: (see Shaw v. Cates, 100 L. T. Rep. 146; (1909) 1 Ch. 389, at p. 395).

The Legislature has set up a standard of prudence to guide trustees when lending on mortgage. This standard is, no doubt, taken from the standard set up by the Court of Chancery in earlier days. By sect. 8 of the Trustee Act 1893 the Legislature has laid it down that a trustee lending money on the security of Third Sheet

any property on which he can lawfully lend shall not be chargeable with breach of trust by reason only of the proportion borne by the amount of the loan to the value of the property at the time when the loan is made, provided that it appears to the court that in making the loan the trustee was acting upon a report as to the value of the property made by a person whom he reasonably believed to be an able, practical surveyor or valuer instructed or employed independently of any owner of the property, whether such surveyor or valuer carried on business in the locality where the property is situate or elsewhere, and that the amount of the loan does not exceed two-thirds the value of the property as stated in the report, and that the loan was made under the advice of the surveyor or valuer named in the report.

No trustee lending on mortgage at this or any other time would be well advised to dispense with the requirements of sect. 8 of the Trustee Act 1893. These requirements to be satisfied in toto involve a considerable number of conditions. First, the trustee must actually act on the report. Secondly, the loan must not exceed the two-thirds of the reported value. Thirdly, the report must be made by a surveyor or valuer. Fourthly, the latter must be "expressed," as the section puts it, in the report. Fifthly, the trustee must have reasonably believed the surveyor or valuer to be able and to have been instructed and employed independently of any owner of the property. It is not, however, absolutely essential to the protection of the trustee for him to have fulfilled all the conditions of the section. This view was expressed by Mr. Justice Stirling in Re Stuart; Smith v. Stuart (67 L. T. Rep. 128; (1897) 2 Ch. 583, at p. 591), although in that case the learned judge held that a trustee who had not fulfilled all the requirements could not in the circumstances of that case show that he had acted " reasonably" within the meaning of the Judicial Trustee Act 1896.

Here we may observe that the Legislature has expressly sanctioned the propriety of a trustee relying on an expert. The rules of equity governing the rights and liabilities of trustees have for many years recognised this principle. So long ago as the days of Lord Hardwicke it was recognised that trustees are not bound personally to transact such business arising out of the proper duties of their trust as, according to the usual mode of conducting business of a like nature, persons acting with reasonable care and prudence on their own account would ordinarily conduct through mercantile agents. This question was fully considered in the House of Lords in the well-known case of Speight v. Gaunt (50 L. T. Rep. 330; 9 App. Cas. 1). Before leaving this branch of our subject we ought to point out that a trustee ought never to delegate the choice of the surveyor or valuer to any other person. If a name is proposed, he ought to satisfy himself that the person named is a proper person to choose (see Fry v. Tapson, 51 L. T. Rep. 326; 28 Ch. Div. 268). One consequence of the war is the general deterioration in trust securities. Investments which at the time of making were undoubtedly highly proper from every point of view will in many cases have ceased to be so satisfactory. The deterioration, of course, may be due to a variety of immediate causes, but all ultimately attributable to the war. What is the position of the trustee in such a case? Ought he to sell and cut loss, or ought he to hold on in the hope of better times? It seems clear that under the present circumstances in nine cases out of ten he ought to hold on.

From the nature of the case the question of the liability of trustees in respect of investments which were at the time of making duly authorised by the trust instrument, but have since ceased to be such that the trustees could rightly adopt that form of investment, must arise chiefly in cases where the money has been invested on the mortgage of landed property. Thus suppose a testator to have empowered his trustees to invest in freehold securities in Great Britain and the trustees to have lent £2000 on a mortgage of Whiteacre. Suppose, prior to such lending, the trustees to have observed fully the provisions of sect. 8 of the Trustee Act 1893 and the surveyor's report to have fixed the value at £3500. Suppose, further, the value of the property to have depreciated so that it could not be said to be worth more than £1500 at the present time.

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