« EelmineJätka »
should be allowed to proceed. The defendants appealed. Judgment was reserved.
Held, by Pickford, L.J., that the appeal must be dismissed, as this was not a proper case for the summary jurisdiction under Order XXV., r. 4; and he held also that the court had power under Order XXV., r. 5, to make the declaration claimed, though on the facts at present before the court that declaration ought not to be made. Bankes, L.J. doubted whether the court had power to make the declaration, but concurred with Pickford, L.J. in dismissing the appeal. Buckley, L.J. thought the appeal should be allowed, as the court had no jurisdiction to make the declaration Appeal dismissed.
[Guaranty Trust Company of New York v. Hannay and Co.
Ship-Charter-party-Loss of Time - Prevention of efficient
Appeal by the defendants from a decision of Bailhache, J. in an action tried by him without a jury, reported 111 L. T. Rep. 410; (1914) 3 K. B. 156. The plaintiffs entered into a charter-party, dated the 29th Aug. 1910, by which they chartered the tank steamer B. from the E. Petroleum The charterCompany for three years and nine months.
arty provided that the hire of the vessel should be paid monthly in advance. Clause 25 provided: "In the event of loss of time through deficiency of men or stores, repairs, breakdown of machinery, pumps, pipes, or boilers (whether partial or otherwise), collision or stranding or damage preventing the efficient working of the vessel for more than forty-eight running hours, the payment of hire shall cease until she again be in an efficient state to resume her service." the 21st Dec. 1910 the defendants gave notice to the plaintiffs that the benefit and burden of the charter-party had been assigned to them. The plaintiffs duly paid in advance the chartermonthly hire at the rate specified in party less certain agreed deductions. Owing to of the causes mentioned in clause 25 the steamer lost time for a period exceeding forty-eight hours. The defendants having refused to allow the deduction, the plaintiffs brought the present action claiming (inter alia) a declaration that they were entitled to deduction of hire in respect of the whole time of detention. Bailhache, J. held that for losses of time of less than forty-eight hours no claim for cesser of hire could be made. but where from any of the causes named in the charter-party there were losses of time exceeding forty-eight hours the charterers were entitled to cesser of hire for the whole of the time so lost, and accordingly he have judgment for the plaintiffs. The defendants appealed. The Court of Appeal affirmed the decision of Bailhache, J. and dismissed the appeal.
[Meade-King, Robinson, and Co. v. Jacobs and Co. and others. Ct. of App.: Buckley, Pickford, and Bankes, L.JJ. March 16. -Counsel for the appellants, Roche, K.C. and Raeburn; for the respondents, Greer, K.C. and MacKinnon, K.C. Solicitors: for the appellants, William A. Crump and Son; for the respondents, Field, Roscoe, and Co., agents for Bateson, Warr, and Wimshurst, Liverpool.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Company
Practice Debenture holders' Action Charge on Undertaking-Receiver and Monager-Onerous Agreement. Repudiation-Goodwill of Company's Business unaffected.
A limited company, C., agreed in 1906 to employ another company as their sole agents for fifteen years for the sale of their products at a commission. The agreement provided that the C. Company should not by sale of its business, winding-up, reconstruction, or otherwise put an end to the agreement, but should provide that any person to whom the business should be transferred should be bound by that agreement. The C. Company subsequently issued debentures secured by a floating charge on their undertaking and assets. In April 1914, in a debentureholders' action, W. was appointed receiver of the property and assets of the company and to manage the business. The plaintiff in the action, considering the agreement an onerous one on the business, applied for an order that W. might be at liberty to disregard it. It was stated that the assets of the company would not be likely to be enough to pay the debentures in full.
Held, that, as the disregard of the contract would not affect the value of the goodwill of the business, and as the case was for that reason distinguishable from Re Newdegate (106 L. T. Rep. 133 (1912) 1 Ch. 468, the application would be granted.
[Re Great Cobar Limited; Beeson v. The Company. Ch. Div. : Warrington, J. March 12.-Counsel: Tomlin, K.Č. and H. E.
Wright; P. C. Vaughan; Hughes, K.C. and Gordon Brown Solicitors: Burn and Berridge; Paines, Blyth, and Huxtable ; Linklater, Addison, and Brown.]
Patent-Compulsory Licence-Reasonable Requirements of the Public-Trade or Industry unfairly prejudiced-New Industry— Onerous and exorbitant Conditions-Patents and Designs Act 1907, s. 24 (5) (a) (b)-Patents Rules 1908, rr. 68, 74Order LIIIA.
The R. E. L. Company, possessing a patent for an improved electric lamp, desired to obtain a supply of drawn tungsten wire to be used in the manufacture of its lamps, and applied to the B. T. H. Company and S. Limited either to purchase such wire or to be granted a licence to manufacture and vend such wire, in accordance with inventions covered by patents possessed by the other companies, on payment of reasonable royalties. It was alleged that the companies, members of a "trust" association, refused either to sell, except at an exorbitant price, or to grant a licence, alleging injury to their own trade in lamps, and offering for sale lamps containing tungsten wire, but refusing to sell tungsten wire separately. The petitioners did not desire to purchase lamps, but only tungsten wire, and alleged that the refusal seriously prejudiced their trade or industry, and caused a monopoly which prevented a satisfaction othe reasonable requirements of the public, and the establishment of their new industry.
Held, that the refusal to grant a licence to a particular person does not constitute an unfair prejudice to the trade or industry, and it must be shown that the industry as a whole is prejudiced. Although an individual may suffer, the reasonable requirements of the public may nevertheless be adequately met. As there appeared to be no evidence of a general demand for tungsten wire, except in connection with lamps, there could not be said to be a “new industry" for that material. Petition dismissed.
[Re Robin Electric Lamp Company Limited. Warrington, J. March 12.-Counsel W. R. Bousfield, K.C., George Cave, K.C., and R. Frost; A. J. Walter, K.C., J. Hunter Gray, and E. Lunge; H. A. Colefax, K.C. and Hume. Solicitors: Ashurst, Morris, Crisp, and Co.; Bristows, Cooke, and Carpmael.]
Trading with the Enemy-Cheque on foreign Enemy Bank-Debt to Enemy-Creditor or "Person interested"-Vesting Order— Public Trustee-Debt-Current Account-Trading with the Enemy Amendment Act 1914, s. 4 and Rules under the Act (3).
S. and W., a firm of stockbrokers in London, received from W., their debtor for £1400, in payment of that debt, a cheque for that amount on an enemy bank in Berlin, fro n which bank it was indorsed by the drawer to a Liverp ol bank. On presentation it was dishonoured and protested. On application for payment, the Liverpool bank first pleaded the moratorium, then the state of war, and then that they had no funds. The Berlin bank denied that they had given instructions not to pay. Thereupon an originating summons was taken out by S. and W. asking for an order vesting the property in the Public Trustee pursuant to sect. 4 of the Trading with the Enemy Amendment Act 1914, to which the Liverpool bank was made a respondent. The Berlin bank had a running account with the Liverpool bank which account, at the time of the presentation of the cheque, was in debit to the Liverpool bank. There was no credit balance in favour of the Berlin bank.
Held, that the amount paid by the Berlin bank was not earmarked or specifically described, but was paid only to a general account, on which the Liverpool bank deny that there is any credit balance, and that as to vest the property in the Custodian would have the effect of making him the as ignee of a disputed debt, which is not the intention of the Act, the court must decline to make the order. The application must be dismissed with costs (including the costs of the respondent, the Liverpool bank, who should not have been made a respondent, seeing that it had not "held or managed" the property, and also the costs of the Public Trustee).
[Re Bank fur Handel und Industrie. Ch. Div.: Warrington, J. March 15.-Counsel: Douglas Hogg; J. Austen-Cartmell; McCardie. Solicitors: Slaughter and May; Bircham and Co.; Coward and Hawksley, Sons, and Chance.]
Will-Legacy to Charity-Amalgamation of Charities under another Name-Practice-Mode of suing an unincorporated Charity.
A testatrix by her will, dated the 27th March 1900, confirmed by several codicils, the last of which was dated the 7th April 1905, gave a legacy of £2500 to the N. P. Union. The N. P. Union was in July 1906 amalgamated with another body under the name of the N. C. League. The testatrix wa informed of the amalgamation, and in Dec. 1906 gave a sub-cription to the N. C. League. Both the N P. Union and the N. C. League were unincorporated charities. On an originating summons for administration of the testatrix's estate, the N. C. League and
another unincorporated charity were sued, and entered an appearance, under their respective names.
Held, following Re Joy; Purday v. Johnson (60 L. T. Rep. 175), that the N. C. League was entitled to the legacy given to the N. P. Union, and that, when an unincorporated charity is sued, the proper practice is to sue A. B. (being the treasurer or secretary or other responsible officer of the charity) " on behalf of the" charity—naming it—and that, strictly speaking, the unincorporated charity should not be sued in its own name, but that, if it be so sued, appearance should be entered by the treasurer, secretary, or other proper officer on its behalf.
[Re Pritt; Morton v. National Church League. Ch. Div.: Eve, J. March 11.-Counsel: Courthope Wilson; Hughes, K.C. and Cecil Ince; A. B. Marten; Edward Ford; Austen-Cartmell, Solicitors: Avison, Morton, Paxton, and Co., Liverpool; JoynsonHicks, Hunt, Moore, and Cardew; Field, Roscoe, and Co., for Wilkinson and Marshall, Newcastle-upon-Tyne; Solicitor to the Treasury.]
KING'S BENCH DIVISION.
Principal and Agent - Foreign Principal - Contract-Personal Liability of Agent - Presumption of-Agent's Authority to pledge Principal's Credit
The plaintiffs' claim was against K., B., and Co. for £3457 89., the price of bunker coal supplied for the steamer K., owned by the N. Company, a German company. The plaintiffs were in the habit of supplying quantities of coal destined for a variety of steamship lines. They did the loading and trimming of the coal, and obtained a receipt from the ship. The receipt was forwarded with an invoice to the defendants, who paid the sum due by their own cheques in the course of a few days. In a letter of the 29th Dec. 1911 the plaintiff's quoted for coal to the N. Company's steamers, and saying they were giving the N. Company a benefit, and trusted it would prove acceptable to them. In a letter of the 9th Oct. 1912 the plaintiffs asked if the N. Company were prepared to go into the question of a further contract. On the 7th July 1914 the defendants gave an order for the coal to be supplied to the K., which in due course was supplied, and on the 28th July the chief engineer gave a certificate, which was forwarded to the defendants together with the invoice. In their sales book the plaintiffs showed sales as being to specific ships, and in their ledgers they generally showed the sales as being to specific ships with the words "K, B., and Co. as agents." The defendants' correspondence paper was headed "N. Company. K., B., and Co., agents," or" K., B., and Co., general agents of the N. Company." contended on behalf of the plaintiffs that there was a direct agreement between the plaintiffs and the defendants, and that the defendants were agents for foreign principals and so personally liable. It was submitted on behalf of the defendants that the contract was not made with them direct, and that privity of contract was established between the plaintiffs and the N. Company.
Held, that the defendants acted as agents and were known to the plaintiffs to be acting as agents.
[Harper and Sons v. Keller, Bryant, and Co. K. B. Div. Com. Ct. Sankey, J. March 2 and 4.-Counsel: Schiller, K.C. and Du Parcq; Roche, K C. and A. Neilson. Solicitors: Helder, Roberts, Walton, and Giles, for Robert Ritson, Southampton; Surr, Gribble, Nelson, and Oliver.]
COURT OF CRIMINAL APPEAL. Criminal Law-Attempt to obtain Money by false Pretences— Preparation for Commission of Crime-Distinction between Intent and Attempt.
Appeal against a conviction for attempting to obtain money by false pretences before A. T. Lawrence, J. at Manchester Assizes. The appellant was a jeweller at Oldham, and had sustained losses owing to the war. He was insured at Lloyd's, and made use of a fraudulent device for obtaining money on the policy. A policeman passing his shop heard cries from within, and on entering found the appellant apparently bound up and helpless. The appellant subsequently admitted that his story as to a supposed en ry and attack by burglars was wholly untrue. The property alleged to have been stolen was found concealed on the appellant's premises. No further step was taken by the appellant with a view to obtaining money from the underwriters. For the appellant it was contended that there was no evidence of an attempt to obtain money by false pretences. The facts disclosed only showed preparation for committing the offence, and no false pretence was made to the person whom it was intended to defraud. For the Crown, reference was made to the definition of an attempt to commit a crime in Stephen's Digest of the Criminal Law, and it was urged that "attempt" might be defined as proximate preparation with guilty intent.
Held, that, if the appellant had communicated with the underwriters with the object of making a claim in connection with the supposed burglary, he could have been convicted; that in the present case there was nothing to show that the underwriters ever knew or were told of anything done by the appellant; that the police-sergeant to whom the false story was related was not the agent of the underwriters; that the steps necessary to constitute an attempt as distinct from preparation for the commission of a crime were not taken; and that the conviction must be quashed.
[Rex v. Robinson. Ct. Crim. App.: Lord Reading, C.J., Bray and Lush, JJ. March 15.-Counsel: for the appellant, Gordon Hewart, K C. and R. McCleary, instructed by Megson and Nicholson, Oldham; for the Crown, A. H. Bodkin and G. Jordan, instructed by the Director of Public Prosecutions]
The Law Relating to Actionable Non-Disclosure. By GEORGE SPENCER BOWER, K.C. Butterworth and Co. THIS is the latest volume in Messrs. Butterworths' Standard Law Book Series, and may be said to be a complement to the author's Actionable Misrepresentation, the two being branches of one great jural department. The actual title of the book hardly covers the subject-matter of the fourth and fifth chapters, which deal with other breaches of duty in relations of confidence and influence, but a concise covering title was difficult to find. It is an excellent piece of legal work, and a great aid in consulting it is an exhaustive subject index of 118 pages.
The Collected Papers of John Westlake on Public International Law. Edited by Professor OPPENHEIM. Cambridge University Press.
THIS interesting work embodies the first edition of Professor Westlake's Chapters on the Principles of International Law with a collection of all his smaller contributions to the subject written in English with the exception of book reviews. The collection is divided into two parts, the first consisting of the Chapters on the Principles of International Law, and the second comprising all the other papers in chronological order. In the appendix will be found a list of all the late professor's writings taken from Memories of John Westlake In his introduction the editor reprints from the Cambridge Review his appreciation of the life-work of
German Legislation for the Occupied Territories of Belgium. By CHARLES H. HUBERICH and A. NICOL-SPEYER. The Hague: Martinus Nijhoff.
IN this book the two noted Dutch lawyers have edited the official texts, reproducing the laws in extenso. They have followed the original German text Gesetzund Verordnungsblatt für die okkupierten Gebiete Belgiens, reproducing even the clerical errors of the original. The German text is the original one; the French and Flemish texts are the official translations as they appear in Nos. 1 to 25 of the above publication.
We have received The Bankruptcy Act 1914 and the Deeds of Arrangement Act 1914 from Messrs. Waterlow and Sons Limited. This is a seventh edition by Messrs. M. Muir Mackenzie and Francis Aubrey Clarke of the original commentary by Chalmers and Hough. We welcome a change in the form of the book. It has been entirely reset in pages of increased size, which makes it less bulky although there is more matter in it than in the previous edition. All the recently decided cases in bankruptcy law and practice up to the date of publication have been inserted in their places, the index has been rewritten, and the whole work revised. There is also a special appendix of notes and forms for practical use.
A compact and well-bound students' text-book is Mr. W. A. Brend's Handbook of Medical Jurisprudence and Toxicology, of which a second edition has just been published by Charles Griffin and Co. Limited. The information is adequate for
examination purposes, and the general practioner will find a complete account of the law relating to medical practice.
With other annual publications we have received that useful volume, Butterworths' Yearly Digest of Reported Cases 1914 (Butterworth and Co.). It is the first yearly supplement of the sixteen years' digest, 1898-1913, and contains the cases decided in the Supreme and other courts, with lists of cases digested, overruled, considered, &c., and of statutes, orders, rules, &c., referred to. It is edited by Mr. Harry Clover.
Mr. John Mews' valuable Annual Digest of English Case Law for 1914 has been published by Sweet and Maxwell Limited and Stevens and Sons Limited. It contains all the reported decisions of the Superior Courts, including a selection from the Scottish and Irish cases. A feature is a separate list of cases to facilitate noting-up, in which the names are printed on one side only (the back being gummed) for cutting up.
The new annual edition (1915) of Every Man's Own Lawyer (Crosby Lockwood and Son) is now published. As a handy book on the principles of law and equity it is a useful book of reference for the layman.
We have received the Estates Gazette Digest of Law and Arbitration Cases for 1914 from the Estates Gazette Limited. It is edited by a barrister-at-law, and the cases have been carefully selected and prepared, so that the work is a good medium for consultation and reference.
Wilson's "No Deluding Peace." "Investors' Review," Norfolk House, Norfolk-street, W.C. Price 1s. net.
Derby, Tuesday (County Courts Act 1903, if necessary; R. By at 11), at 10.30
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SCHOOLS, FARMING, TRADE-WORKSHOPS. Trust Funds available for the Children of Barristers, Solicitors, and Clergy of Church of England. Selected Cases admitted on Reduced Inclusive Fees at the rate of One Guinea a Week. Those Unable to Pay admitted by votes of Subscribers, either free or with part-payment.
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Telephone: 5297 City.
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POOLING INSURANCE.-The Licenses Insurance Corporation and Guarantee Fund Limited has established an entirely new scheme of insurance for Fire, Burglary, Workmen's Compensation, &c., by which the profits accrue to the insured. (See p. 474)-[ADVT.]
Postponement of Disestablishment.
THE Government Bill on this subject, which has attracted an undesirable amount of feeling, is by no means brief in fərm nor is it too intelligible in substance. The first clause, which is perhaps the most important one, states that the date of disestablishment is to be postponed until "the day after the expiration of six months from the termination of the present war." Such simplicity is not present when the second clause is considered. This is intended to deal with payments to the representative body. If this body signifies to the Welsh Commissioners that they have adopted the scheme of commutation set forth in sect. 18 of the Welsh Church Act 1914, then any vacant Church office (when the vacancy was prior to the 18th Sept. 1914 or thereafter before the date of Disestablishment) is to be deemed an existing interest, and that section and the fourth schedule of the Act are to apply accordingly. The vacancy, however, in these cases must not be one merely due to the nomination or appointment of the holder of the office to some other ecclesiastical office in Wales. On the other hand, it is proposed that, if the scheme of commutation is not accepted, the Welsh Commissioners should in that case after disestablishment pay to the representative body a sum equal to the amount by which the amount payable on commutation would have been increased" by notice of the last foregoing arrangement, together with interest at the rate of 3 per cent. per annum. Then follows a proviso whereby any sum attributable to a particular ecclesiastical office is to be charged on the property (other than any burial ground) which before disestablishment belonged to or was appropriated to the use of that office or the holder of such office as such, and it is to be transferred to any county council or to the University of Wales.
THE Bill confers on the Welsh Commissioners a further power by making it lawful for them to grant compensation in respect of the extension of the right of patronage under sect. 16 of the Welsh Church Act 1914, notwithstanding that a period of six months has elapsed from that Act being passed, if the commissioners are satisfied that the delay in applying for compensation is attributable to circumstances connected directly or indirectly with the present war. It is again provided that, until the date of disestablishment, the powers of holders of ecclesiastical offices or of cathedral corporations to sell, lease, mortgage, exchange, or otherwise dispose of or deal with any property are not to be deemed to be affected. Any sum paid or payable to the Ecclesiastical Commission or Queen Anne's Bounty, or to the Board of Agriculture and Fisheries, or to any other authority by way of consideration will, however, vest in the Welsh Commission. The result of all these new and debatable arrangements is to make it necessary to extend the life of that commission, and it is accordingly proposed that the power of continuing their existence is to be enlarged to such period, not exceeding in the aggregate three years, as His Majesty thinks fit.
Production of War Material.
THE rapid passage of the latest addition to the legislation regarding the defence of the realm is an apt illustration of the ease with which, when the human element is not obstructive, measures involving all sorts of interests and raising questions of the greatest moment, alike to the community and to individuals, can be placed upon the statute-book. The Government Act to expedite the production of war material shows that the procedure of Parliament is rot so much to blame as the abuse of it for the maddening delay and confusion which have attended the progress of so many measures in recent years. Under this Act, sect. 1 (3) of the Defence of the Realm Consolidation Act 1914 is extended so that the authorities can take possession of and use not merely selected classes of factories, but "any factory or workshop of whatever sort or the plant thereof." And not merely that, but there is the further power added to require "any work in any factory or workshop" to be done in
accordance with directions to be given "with the object of making [them] or the plant or labour therein as useful as possible for the production of war material." The reference to the factor of labour is significant. To these powers are joined others no less far-reaching. Thus work in one factory can be regulated or restricted or the plant removed to increase production in other factories, and any unoccupied premises can be requisitioned for the purpose of housing the workmen. It is scarcely possible to set any limits now to the emergency powers with which Parliament has in a few hours clothed the Admiralty or Army Council. The Act does not add one single word to the obligations relating to compensation, nor does it place the slightest obstacle in opposition to the possibilities of individua concerns being wiped out. The greater peril of the nation at large overbalances such considerations as these. The Act throws out this small satisfaction, that, if, the fulfilment of a contract is interfered with by the necessity of compliance with official orders, the person concerned can raise as a defence that necessity, and the same is to absolve him against any action or proceedings in respect of non-fulfilment of contract "so far as it is due to that interference '-a phrase which may by its relative ambiquity yet give some cause for trouble.
Not long ago we commented on certain modifications which the war had rendered necessary in Part 2 of the National Insurance Act 1911. The Government measure now dealing with Part 1 of this same Act is one of some importance at the present time. When on discharge there has been granted to a person to whom sect. 46 of the Act applies (that is, to persons engaged in the naval and military services) a pension in respect of total disablement by reason of the war, the sickness or disablement benefit receivable under the Act is to be reduced by 58. a week. Pending the claim to a pension being settled, the society administering benefit can pay at the unreduced rate, and the surplus can be treated as an advance and be recoverable by deductions from or suspensions of subsequent benefits, or can be repaid by the Admiralty or Army Council out of arrears of pension in hand. The same principle is made applicable in respect of sums granted to insured persons under the Injuries in War (Compensation) Acts of this and last year, or under any similar Act which may hereafter be passed. Certain amendments are made to sect. 46 of the National Insurance Act 1911 relating to credits to approved societies and to the Navy and Army Insurance Fund which entail some financial adjustments on the part of the Insurance Commissioners.
Injuries in War.
THESE provisions will have to be read in conjunction with an addition to the emergency legislation passed to deal with compensation for disable ments sustained arising out of the war. This new addition is particularly passed to deal with a scheme to be framed for the benefit of persons disabled whilst employed aflcat by or under the Postmaster-General in connection with laying, installing, repairing, and operating submarine cables and telegraphic and wireless apparatus, or whilst they are being carried afloat to or from places where they are to be or have been so employed, or whilst employed afloat by the Postmaster-General on duties connected with the conveyance or sorting of letters and parcels. Such persons are not to be entitled to compensation under the Workmen's Compensation Act 1906 nor to damages at common law or under the Employers' Liability Act 1880, except so far as an Order in Council allows.
depart. There is now a power given to call for pre-entry of ships' stores, being goods subject to prohibitions or restrictions outwards. In other respects the law is considerably strengthened. Masters of coasting ships departing without due clearance can be called upon to deposit a sum not exceeding £100 at any port where the ship is found, and in default of payment the ship can be detained. So, again, where goods are exported under a licence to some particular person or place named in it, these particulars have to be inserted in all invoices, bills of lading, manifests, and other documents relating to the goods, and in default of this the person by whom or on whose behalf the document is made out is, if the exporter of the goods, to be deemed to have exported them without a licence, and if any other person, is to be liable to a penalty of £100. The Act further makes provisions in respect of persons who declare the ultimate destination of goods under sect. 139 of the Customs Consolidation Act 1876. The exporter can be required to produce evidence that the goods have not reached a destination treated as enemy country. On failure, such person is liable to a penalty of treble the value of the goods or of £100, at the election of the Commissioners of Customs or Excise, unless he can prove that the goods reached such destination without his consent or connivance, and that he took all reasonable steps to secure that the ultimate destination should be that set out in his declaration. If the latter be suspected to be false in any material particular, the Customs authorities can detain the goods. Imported goods of enemy origin can also be seized, and, in proceedings for forfeiture and condemnation, the country of origin is to be deemed to be an enemy country unless the contrary is proved. This measure, which is to be construed with the Customs Consolidation Act 1876, is to continue in force during the war.
Legal Proceedings against Enemies.
THIS Government Act will require to be read with some care by all persons who are concerned with legal proceedings against enemies. The first section deals with writs. Leave can be given to issue a writ of summons in the High Court for service on an enemy out of the jurisdiction or of which notice is to be given out of the jurisdiction in certain cases, and, if satisfied that the writ cannot be promptly served or brought to his notice, an enemy service order" can be made directing substituted or other service or substitution of notice for service by advertisement or otherwise. The Lord Chief Justice is to give directions for expediting proceedings and regulating procedure generally where this order has been made and the enemy defendant does not appear. Where it is not practicable to obtain the best evidence of any document material to the case, such other evidence may be admitted by the court as appears proper. Where the enemy service order has been made and the defendant does not appear, the court can order the plaintiff, though successful, to pay the whole or any part of the costs if it seems just. If a writ has been indorsed only with a claim for a declaration, this will not prevent any other declaration or any consequential or other relief being claimed in other proceedings, or prevent the case being dealt with although no such other declaration or consequential or other relief is claimed.
The Application of these Provisions.
THE Government propose that these benefits should attach where the plaintiff is British and entitled to bring an action and the defendant or one of them is an enemy, and where the writ is indorsed only with a claim for a declaration as to the effect of the present war on rights or liabilities of the plaintiff or defendant under a contract prior to its outbreak, of which contract written evidence is available. This will apply to corporations incorporated in His Majesty's dominions, and, as respects an enemy, will affect any persons or bodies of whatever nationality resident or carrying on business in an enemy country, but will not apply to persons of enemy nationality who are neither resident nor carrying on business in an enemy country. The expression "outbreak of war is used to signify the date of the outbreak of war with the enemy country in which the enemy is residen or carrying on business.
BANKRUPTCY LAW AND PRACTICE.
Release of Right to Sue for Breach of Trust.
MR. JUSTICE HORRIDGE was afforded the opportunity, in the recent case of Re Collins (112 L. T. Rep. 87), of clearing away, in a brief judgment, what seems to have been some little misapprehension as to the effect of the reported decisions on the question of what is "a purchaser for valuable consideration," within the meaning of sect. 47, sub-sect. 1, of the Bankruptcy Act 1883 (46 & 47 Vict. c. 52). That important sub-section is now re-enacted, without any alteration whatever, in the Bankruptcy Act 1914 (4 & 5 Geo. 5, c. 59), and forms sect. 42 sub-sect. 1, thereof. The question, as appears from our report, was whether the trustees of a settlement, in the circumstances we have detailed, were purchasers for valuable consideration. And the conclusion arrived at by the learned judge was that the release of an undoubted right to sue for a breach of trust was "valuable consideration," and was sufficient to constitute the trustees "purchasers." For that proposition his Lordship had the direct authority of the majority of the learned judges of the Court of Appeal-the Master of the Rolls (CozensHardy) and Lord Justice Moulton-in Re Pope; Ex parte Dicksee (98 L. T. Rep. 775; (1908) 2 K. B. 169). There it was expressly laid down that the release of a right or compromise of a claim, not being a merely colourable right or claim, may suffice to constitute a person a "purchaser" within the meaning of sect. 47 of the Act of 1883. In that case a post-nuptial settlement was executed by a husband in favour of his wife and children in pursuance of a bargain made between the husband, and the wife that she would release her existing right to relief for matrimonial offences committed by him. It was held by their Lordships-Lord Justice Buckley dissenting— affirming the decision of Mr. Justice Bigham, that the settlement was brought within the exception in the section as being made favour of a purchaser in good faith and for valuable consideration," so as to be good against the husband's trustee in bankruptcy on his becoming bankrupt within two years after the execution of the settlement. The case was one of first impression, the question raised never having apparently been previously dealt with in any reported decision. The contention was that, the Bankruptcy Act 1883 being a commercial statute, the meaning to be attributed to "purchaser " must be a person who " buys.” Express authority was capable of being cited in support of that view. That the word "purchaser" is equivalent to buyer" in the sense in which that word is used in ordinary commercial transactions, and that the strict legal sense of the word is not applicable thereto, is founded upon what was decided in Ex parte Hillman; Re Pumphrey (40 L. T. Rep. 177; 10 Ch. Div. 622) and Hance v. Harding (59 L. T. Rep. 659; 20 Q. B. Div. 732). But notwithstanding what there enunciated, the Master of the Rolls and Lord Justice Moulton considered that "purchaser" in the section in question means a person who has given something in consideration of the settlement a quid pro quo, in brief. In Re Collins (ubi sup.), Mr. Justice Horridge could not but follow the decision in Re Pope; Ex parte Dicksee (ubi sup.). For that decision was practically on all fours with the case before his Lordship. And to hark back to such statements as to the meaning of "purchaser" in the section, as were given utterance to in cases like Ex parte Hillman; Re Pumphrey (ubi sup.) and Hance v. Harding (ubi sup.), has only the effect of unduly complicating what is now generally accepted as being the true interpretation to be placed upon that word as it there appears. The case of Re Parry; Ex parte Salaman (89 L. T. Rep. 612; (1904) 1 K. B. 129) was relied upon, it will be observed from our report, as being a similar case to the present. And in that case, the trustees were held not to be purchasers for valuable consideration. in opposition to that submission, it was pointed out that there the trustees of the settlement merely executed their trusts and that there was no quid pro quo given. Mr. Justice Horridge, in confirming that observation, agreed that the trustees in that case were only exercising their rights as trustees, and