which the law of England gives him. But by the law of England, so long as hostilities prevail, he cannot sue here." But the point was settled long before that case was decided. In 1804 Lord · Ellenborough laid it down that the intervention of hostilities debarred the plaintiff in the case of Le Bret v. Papillon (1804, 4 East, 923), who was an alien enemy, from maintaining his action, although the action had actually been commenced before the declaration of war. Even before that Lord Kenyon in Brandon v. Nesbitt (1794, 6 T. R. 23) held that an action would not lie by an alien enemy while war continued.

Shortly after the commencement of the Hilary Term the Court of Appeal held that a British plaintiff might commence and maintain an action against an alien enemy during war, and that consequently an alien enemy may be sued during war and may appear and defend the action. This important question was decided by the Court of Appeal in the three cases of Porter v. Freundenburg, Kreglinger v. Samuel and Rosenfeld, and Re Mertin's Patent (138 L. T. Jour. 272). The decision confirmed the view of Mr. Justice Bailhache in Robinson and Co. v. Continental Insurancé Company of Mannheim (112 L. T. Rep. 125; (1915) 1 K. B. 155), where his Lordship pointed out that the reasons of the common law rule that an alien enemy plaintiff could not be heard while war continued were not applicable where an alien enemy was sued by a British subject in this country. The learned judge said (in effect) that to debar such a plaintiff from proceeding against such a defendant would really be to benefit the alien enemy, and would convert into a form of relief that which in the intendment of law was a disability, and thus the whole purpose of the suspensory rule would be defeated.

Now, it is one thing for the court to hold that an alien enemy may be sued while war is in progress, and another thing to devise a method for effective proceedings. On principle, no doubt, the Court of Appeal was perfectly right in holding that a British plaintiff ought not to suffer by reason of the war. The rules of law debarring proceedings on the part of an alien enemy plaintiff have no application where the parties are reversed. But there are very grave practical difficulties which prevent a British plaintiff suing an alien enemy. Our legal system sets its face against condemning a man unheard. That is a fundamental principle of English law. Moreover, our legal system does not favour constructive notice that is to say, the conception of charging a party with notice of proceedings against him in this country under circumstances where it is morally certain that that party can have no knowledge that proceedings have been instituted against him. In other legal systems this has some place. The furthest that our system goes towards adopting such a course is in what we know as substituted service. But all our rules concerning substituted service are directed towards bringing home the knowledge of the institution of proceedings to the mind of the defendant. ordinary cases," said Lord Davey in the case of Re McLaughlin (92 L. T. Rep. 670; (1905) A. C. 343, at p. 347), “in considering upon whom substituted service should be made, the primary consideration is as to how the matter can be best brought to the personal attention of the person in question." The Rules of the Supreme Court dealing with this matter of substituted service all tend to the same end, and in practice certain procedure is adopted towards securing that end.

"In

The Court of Appeal, in laying down the proposition that an alien enemy may be sued and may appear and conduct his defence, whether in a court of first instance or in a court of appellate jurisdiction, were hard put to work out the logical consequences of the decision. Germany has ceased to be a country to which Order XI., r. 8, of the Rules of the Supreme Court applies. Under rule 8 of that order a form of procedure was provided where leave is given to serve notice of a writ in any foreign country to which the rule applies. The rule was made to apply to Germany. The notice ordinarily passes through the usual diplomatic channels. All diplomatic channels between this country and Germany were, of course, stopped immediately on the outbreak of the war, and later the Lord Chancellor revoked the order making Germany a country to which the rule applies. Nevertheless the Court of Appeal came to the conclusion--and the court appears to have exercised great diligence in studying and construing the several orders and rules applying to the subject—that in fact there is no Third Sheet

reason why substituted service under Order XI., r. 1, should not be allowed in circumstances similar to those in which it is allowed in the case of a writ for service out of the jurisdiction.

That there still remain grave practical difficulties is shown by the fact that it has been deemed necessary to pass the recent statute. Let us explain clearly this point-the new Act facilitates proceedings only in cases where the right of the plaintiff is a strong primâ facie right. This is the keynote of the measure, and a highly significant

one.

It comes to this: The practical difficulties of carrying on effective litigation against an alien enemy in the enemy's country are so great that Parliament must afford statutory facilities to the plaintiff, but, at the same time, will only afford those facilities where the case is one where the plaintiff appears to be right. It is a cautious measure and very properly so, yet a measure recognising that the knot must be cut-that a practical solution must be afforded for the logical sequence of the rule of law which allows a British subject to sue an alien enemy. The knot, indeed, is a large one. Principles conflict with practical results. The principles require freedom of suit. Practical difficulties prevent that freedom, and, in preventing that freedom, bring into play other principles which conflict with principles. The British litigant is not to be punished. He is to be allowed to sue. That involves the alien enemy's defence. That is next to impossible, and yet he is not to be condemned unheard.

As we have already explained, contracts made prior to the war between subjects and persons who are now alien enemies may still be subsisting. The discharged rights and obligations may still arise out of the discharged contracts. It is with contracts made before the commencement of the war that the new Act deals. The plaintiff must be a British subject entitled for the time being to bring an action in the High Court. The defendant, or one of the defendants, must be an enemy, and the writ must be indorsed only with a claim for a declaration as to the effect of the present war on rights and liabilities of the plaintiff or defendant under a contract entered into before the outbreak of the war. Then observe this further statutory necessity-there must be written evidence of the contract. Those conditions must all co-exist in order to enable the plaintiff to take advantage of the procedure afforded by the Act: (see sect 1, sub-sect. 6).

The Act enacts (sect. 1, sub-sect. 1) that leave may 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 to an enemy out of the jurisdiction, if the court or judge is satisfied that the case is a case to which the section applies, and the court or a judge may on an application made at the time leave is so given, or at any subsequent time, if satisfied that the writ cannot promptly be served or brought to the notice of the enemy defendant by way of the usual means, make an order (called an enemy service order) directing substituted or other service of the writ or the substitution of notice for service by means of advertisement or otherwise. On the order being complied with, all proceedings may be taken on the claim as if the writ had been served on the enemy defendant by the usual means.

It is abundantly clear, of course, that in proceedings of this kind material documents may not be forthcoming. This difficulty has been dealt with by the Act, and sub-sect. 3 of the first section of the Act provides that where an enemy service order has been made and it appears not to be practicable to obtain the best evidence of any document which is, in the opinion of the court or judge, material to the case, the court or judge may admit such other evidence of the document as appears proper in the circumstances.

Where an enemy service order has been made under the Act and the enemy defendant does not appear-and in the nature of the case this will, no doubt, happen in many instances the Act gives power to the court or judge to order the plaintiff, though successful, to pay the whole or any part of the costs of the proceedings, if the court or judge considers that it is just to do so in any special circumstances. This provision, which occurs in sub-sect. 4 of the first section, bestows the usual discretion on judges to deal with the question of costs. We shall watch the way in which this discretion is exercised with the utmost interest. This provision seems to suggest that it well may be that the. court ought, in the case of an enemy defendant not appearing, to put the costs on the plaintiff. There are, no doubt, a great number of British subjects who have

entered into contracts of this kind and who feel incumbered with the existing doubts how far their contracts remain and how far they have been discharged, and, if discharged, what respective rights and obligations still subsist in respect of them; and there are a great number of British subjects who would willingly pay the whole costs of the proceedings in order to have those doubts definitely set at rest. But if it is going to be a question of every successful litigant paying the whole of the costs, the purpose of the Act will very possibly be largely defeated. However that may be, confidence may be rightly placed in the court to deal with this matter of costs in a wise and judicious manner.

The expression" enemy as used in the Act is defined as meaning any persons or body of persons of whatever nationality resident or carrying on business in an enemy country, but it does not include persons of enemy nationality who are neither resident nor carrying on business in an enemy country. It is, therefore, clear that the Act does not apply to an alien in this country the subject of an enemy State, but who has duly observed the provisions of the Aliens Restrictions Act and the proclamations and orders made under it. Nor does it apply apparently to companies registered in this country, the shareholders of which are alien enemies.

As in the case of most of this temporary emergency legislation, the Act provides for rule making by the Lord Chancellor. The Lord Chancellor may make such rules as he thinks fit for expediting proceedings and regulating procedure generally in a case where an enemy service order has been made, and the enemy defendant does not appear. Any rules so made are to have the same effect as if they were included in the rules of court for the time being in force. To our mind, the most important aspect of the Act is its provision for proceeding where the alien enemy does not appear. Consequently the rules will form the most important part of the Act. It is almost needless to say that the Act, although not in terms limited to any specified period, is essentially a temporary measure designed to overcome the practical difficulties of suing an enemy defendant. One cannot help dwelling on the position when the war is over, and the quondam enemy defendants find that their rights and obligations have been adjudicated on in their absence. Suppose such a person to come forward with proof of a very different contract from that which the quondam plaintiff has established, or even proof of its discharge prior to the outbreak of the war. But it is little use speculating on questions of this kind. These are questions which, no doubt, will be present to the mind of the learned judges when adjudicating on the particular matter before them, and that every effort will be made to prevent any miscarriage of justice is a foregone conclusion.

Although, no doubt, there will be ground for difficulty in putting the Act into operation, the conception underlying this recent piece of legislation is a just one, and the Legislature-by which, of course, we mean its legal advisers-has dealt with a difficult problem in a very efficient manner.

COMMENTS ON CASES.

Credit of Client Pledged by Solicitor.

ALTHOUGH the decision of the Divisional Court, consisting of Justices Coleridge and Shearman, in the recent case of Wakefield v. Duckworth and Co. (112 L. T. Rep. 130) lays down no new law, yet the point dealt with therein is of such peculiar interest to the Profession that solicitors may possibly appreciate having their attention specifically directed thereto. As stated in our report, a photographer took some photographs at the instance of a member of a firm of solicitors for the purpose of being used at a trial for manslaughter in which the solicitors were acting for the accused. The photographer sued the solicitors for the cost of the photographs. There was no question that the photographer knew that the persons by whom the order was given to take the photographs were solicitors and were acting on behalf of a client-agents, in other words, contracting on behalf of a principal. Primâ Jacie, therefore, the wellestablished rule was applicable that the photographers ought to have recourse for payment of the goods supplied to the principal and not to the agents. For "it is a clear rule that where a person is professedly acting as agent for another, the

principal is bound and not the agent," as was said in the case of Lee v. Everest (2 H. & N. 285, at p. 291). But, as Mr. Justice Coleridge observed in the course of his judgment, the contention was that the mere fact that the solicitors gave the order rendered them personally liable. The learned judge was fain to admit as settled law that, where a transaction is a cash trans action, it is assumed that a solicitor, entering into a contract with a person who knows that he is a solicitor, is nevertheless personally responsible. In such a case, it is assumed that the solicitor has no authority to pledge the credit of the client, his principal. All turned in the present case, therefore, on the question whether the transaction there was, or was not, to be regarded as a cash transaction of the nature contemplated in the exceptional cases to which his Lordship was referring. The decision was unequivocally against that view of it, although an action would lie for the cost of the photographs directly they were delivered Nor was there any evidence of a custom overriding the ordinary law and showing that the solicitors should be treated as personally liable, such as was under consideration in Cocks v. Bruce, Searl, and Good (21 Times L. Rep. 62). Nearly a year ago, when commenting on the case of Re Roney and Co. (see 137 L. T. Jour. 85, we discussed the question of "unusual expense incurred by a solicitor on behalf of a client within the meaning of Order LXV., r. 27 (29). Costs of taking shorthand notes of evidence heard at arbitration proceedings, and of making transcripts thereof, were disallowed in that case by the taxing master. And not being necessary or proper" expense, the same could not be charged to the client, according to the decision of the Court of Appeal. But no exception of that sort could apparently be taken of photographs such as were in use in the present case.

66

Following Trust Moneys.

An extension of the principle of the decision of the Court of Appeal in the notorious and oft-cited case of Re Hallett's Estate; Knatchbull v. Hallett (42 L. T. Rep. 421; 13 Ch. Div. 696) was what Mr. Justice Sargant was invited to make, having regard to the circumstances before his Lordship in the recent case of James Roscoe (Bolton) Limited v. Winder (112 L. T. Rep. 121). But the attempt to bring that about proved unavailing-and very properly so, as it appears to us. That decision was considered-and, apparently, with the completest approvalby the House of Lords a very short while since in the Birkbeck Building Society case: (Sinclair v. Brougham, 111 L. T. Rep. 1; (1914) A. C. 398). The decision is thus expressed in the headnote to the report in the Law Reports. "If a person who holds money as a trustee or in a fiduciary character pays it to his account at his bankers, and mixes it with his own money, and afterwards draws out sums by cheques in the ordinary manner . . the rule in Clayton's case (1 Mer. 572), attributing the first drawings out to the first payments in, does not apply. The drawer must be taken to have drawn out his own money in preference to the trust money." The doctrine was enunciated even more perspicuously by Lord Justice Davey (as he then was) in the subsequent case of Re Hallett and Co.; Ex parte Blane (70 L. T. Rep. 361; (1894) 2 Q. B. 237, at p. 244). His Lordship stated it in this popular style: "Where a trustee pays his own money and also trust money into his banking account, it is the same thing as though he had placed them in a box, and his drawings for bis own purposes must be assumed to be out of his own money." It is clear that trust money capable of being followed must be a specific sum capable of being identified What, therefore, Mr. Justice Sargant had to satisfy himself was whether, in a case where, as in Re Hallett's Estate; Knatchbull v. Hallett (ubi sup), the banking account of the debtor comprised not only moneys belonging to himself for his own purposes, but also moneys belonging to him upon trust for someone else, the doctrine established by that authority came into operation. But for the circumstance that the trust moneys could not possibly be traced into the debtor's common fund to the extent of more than a very small portion which formed part thereof, the learned judge would have been of opinion that the case that he had to decide was concluded by the decision in that case. Further, apart from the necessity for tracing the money, his Lordship considered that it was impossible

to attribute to the debtor that by the mere payment into his private general banking account of moneys which to a large extent he subsequently used for purposes of his own, he intended to clothe the moneys which remained with a trust in favour of the plaintiffs. Mr. Justice Sargant, it will be observed, distinguished the decision of Mr. Justice Joyce in Re Oatway; Hertslet v. Oatway (88 L. T. Rep. 622; (1903) 2 Ch. 356), which had been relied upon in support of the plaintiffs' case. difficult a subject, there is no certainty that a case comes, or does not, within the doctrine. But the reasoning of his Lordship against its applicability to the present case seems to us to carry conviction.

Repudiation by Receiver of Company's Contracts.

On so

UNTIL the decision of the Court of Appeal in Re Newdegate Colliery Limited; Newdegate v. The Company (106 L. T. Rep. 133; (1912) 1 Ch. 468) was pronounced, the question there dealt with was apparently bare of authority: To what extent is the receiver and manager of a company, appointed at the instance of debenture-holders, at liberty to repudiate contracts entered into by the company? Before the answer which the learned judges of the Court of Appeal gave to that important question becomes fully susceptible of being appreciated, it is essential to disburden one's mind of the notion that such contracts are in any way binding upon the receiver and manager personally. The contracts are, as a matter of fact, really broken by his appointment. Of course, if he elects, on the other hand, to adopt them, that is altogether another matter. But in the absence of any pro ceeding of that nature, the decision of the Court of Appeal in Reid v. Explosives Company Limited (57 L. T. Rep. 439) demonstrates that contracts cannot be enforced against the receiver and manager personally, but only against the company by way of a claim for damages. The decision in Newdegate's case (ubi sup.), however, makes it perfectly plain that, although a receiver and manager of a company is under no personal liability in respect of any contracts into which the company has entered, yet it is his duty to have regard to the interests of the company as well as of the debenture-holders, and to preserve the goodwill and undertaking as well as the actual property of the company. And inasmuch as, in Newdegate's case (ubi sup.), it would have been inconsistent with such duty to repudiate the contracts, the application of the receiver and manager to be permitted so to do was refused. Everything depends, therefore, upon consideration of whether repudiation of the contract will be consistent with the duty of the receiver and manager. Mr. Justice Warrington, in the recent case of Re Great Cabar Limited; Beeson v. The Company (noted ante, p. 157), laid the utmost stress upon that essential feature of cases of this description. Lordship was at pains to point out that a part of the security of the debenture-holders in Newdegate's case (ubi sup.) consisted of the goodwill of the business of the company; that the receiver and manager was appointed to protect and keep up the goodwill has much as any other part of the security; and that if he were allowed to disregard all the contracts in question in that case he would have so damaged the reputation of the company as practically to destroy the good will. Nothing of that kind presented itself in the case before Mr. Justice Warrington.

His

The con

tract in question there in no way affected the value of the goodwill. On that ground, his Lordship was in a position to distinguish Newdegate's case (ubi sup.), and to make an order authorising the receiver and manager to disregard the contract to which his application related. And that, in so deciding, the learned judge applied the ruling of that authority in the manner that was contemplated by the Court of Appeal does not seem to admit of any doubt whatever.

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THE CONVEYANCER.

Settlement of Settlor's Own Property on Himself till Bankruptcy-Validity.

It is often stated in the conveyancing text-books that a man cannot settle his own property so as to take an interest determinable on his bankruptcy; but they do not, as a rule, go on to state plainly to what extent such a settlement is good: Is the whole settlement thereby avoided, or only the interest given to the settlor? One of the oldest cases on this point is that of Higinbotham v. Holme (19 Ves. 88). There by a marriage settlement certain freehold estates and leaseholds for lives were conveyed by the husband to the use, after the marriage, of himself for life, unless he should thereafter embark in any trade or business and in the lifetime of his intended wife should become bankrupt, and from and after his decease, or his being declared a bankrupt, which should first happen, to the use that his wife, in case she survived her husband, and Hannah Higinbotham should be then living, should receive an annuity of £150 during the several lives of the wife and Hannah Higinbotham; but, in case Hannah should be dead at the death or bankruptcy of the husband, or should afterwards die in the lifetime of the wife, then, from and after such death or bankruptcy of the husband and Hannah, that the wife should receive an annuity of £200 for her life, and, subject to the said annuities, from and after the death or bankruptcy of the husband, to the use of trustees for a term to secure the arrears of the annuities, and subject thereto to the use of the husband, his heirs, &c Subsequently the husband entered into trade and became bankrupt, and it was held by Lord Eldon, affirming the judgment of the court below, that the wife was not entitled to the annuity of £150. But in the course of his judgment Lord Eldon said: "The question is whether a provision of this sort can be sustained against creditors by charging his estate as against their right under the commission with this annuity to which she will upon his death have an undoubted title," from which it is to be inferred that the settlement was only void as to the husband's life interest. In Re Pearson; Ex parte Stephens (35 L. T. Rep. 68; 3 Ch. Div. 807) the facts were very shortly as follows: In the year 1858 a man, who was not then engaged in trade, and who owed no debts, made a voluntary settlement of a sum of £1000. The trusts of the deed were to pay the income to himself until alienation or bankruptcy, and then for his wife for life for her separate use, with remainder for the issue of the marriage as therein mentioned, with an ultimate remainder for the settlor. In 1873 he, for the first time, engaged in trade, and in 1875 he was adjudicated bankrupt. Held, by Chief Justice Bacon, that the settlement was vid in toto against the trustee in bankruptcy. That decision, however, was overruled by the Court of Appeal in Re Holland; Gregg v. Holland (86 L. T. Rep 542; (1902) 2 Ch. 360), the Court of Appeal considering that the judgment in Re Pearson decided, in effect, that the clause providing that the settlor's beneficial interest should continue until he should become a bankrupt or assign was conclusive to make the settlement fraudulent within the statute of Elizabeth. In Re Holland, by a post-nuptial settlement dated in 1873, a husband, who was entitled in right of his infant wife to a reversionary interest in personal estate, covenanted that, on the fund falling into possession, he would assign it to the trustees upon the usual trusts for the wife, husband, and issue of the marriage, the husband's life interest being determinable on bankruptcy. The husband was not indebted at the time, nor was he contemplating embarking in trade. The wife died in 1877, and in 1898 the husband was adjudicated bankrupt. In 1899 the fund fell into possession. There was issue of the marriage. Held, by the Court of Appeal (among other things), that the settlement was good against the trustee in bankruptcy, on the ground that there was no evidence of its having been made with intent to defeat creditors, so as to render it void under 13 Eliz. c. 5. In the course of the argument, Lord Cozens-Hardy, M.R. (then Lord Justice Cozens Hardy) said: "Why should the insertion of a cesser clause in the case of the husband's life interest make void so much of the settlement as would otherwise be good?" And in the course of his judgment he said: "It may well be that such a limitation of the settlor's

life interest is void as against creditors, but I can see no ground for holding, on the mere construction of the settlement, that such a limitation of the settlor's life interest avoids the settlement in toto." And Lord Justice Stirling in the course of his judgment said: "It may be that such a limitation of the bankrupt's life interest is void as against his trustee (see Higinbotham v. Holme), but does it invalidate the settlement altogether? Apart from authority, I should think not." Of course, a settlement of the kind, if voluntary, may be void in toto under sect. 42 of the Bankruptcy Act 1914, if the settlor becomes bankrupt within two years after the date of the settlement, or if he becomes bankrupt subsequently within ten years after the date of the settlement, except under the circumstances therein mentioned. Again, such a settlement may be void in toto under 13 Eliz. c. 5 if made with intent to defraud creditors, whether present or future. But if the sett'or, at the date of the settlement, was thoroughly solvent, without the aid of the settled funds, and retained an income sufficient for reasonable requirements, primâ facie it could not be set aside on the ground of intention to defraud creditors (see Re Lane-Fox; Ex parte Gimblett, 83 L. T. Rep. 176; (1900) 2 Q. B. 508).

Trust for the Protection and Benefit of Animals— Charity.

It is satisfactory to find that the Court of Appeal has recently confirmed the view that a bequest for the kind treatment of animals is a valid charitable bequest. In Re Wedgwood; Allen v. Wedgwood (138 L. T. Jour. 11; (1915) 1 Ch. 113) a testatrix, who died in 1913, by her will gave the residue of her real and personal estate upon trust for conversion, and, subject to the payment of certain sums therein mentioned, for the defendant C. W. absolutely. The Court of Appeal held that C. W. did not take the residue beneficially, but upon a secret trust for the protection and benefit of animals, and that it was a good and valid charitable trust. The ground of the decision was, in the language of the Master of the Rolls, that the trust "tends to promote public morality by checking the innate tendency to cruelty." It had already been decided that the following gifts were valid charitable bequests: (1) A bequest for founding, establishing, and upholding an institution for studying and endeavouring to cure maladies, distempers, and injuries of any quadrupeds or birds useful to man: (University of London v. Yarrow, 1 De G. & J. 7?). (2) To a society for promoting prosecution for cruelty to animals: (Re Vallance, Seton, 7th edit., 1304). (3) To a society for the protection of animals liable to vivisection and to the home for lost dogs: (Re Douglas; Hobert v. Barrow, 56 L. T. Rep. 786; 35 Ch. Div. 472). (4) To societies for the suppression of vivisection: (Re Foveaux; Cross v. London Anti-Vivisection Society (1895) 2 Ch. 501). Charity in the legal sense has a far wider meaning than the word conveys in its popular use. It was said by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v. Pemsel 1891) A. C 583) that "charity in its legal sense comprises four principal divisions-trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly." As pointed out in several cases, it is this fourth head which is most difficult, as being altogether vague and indeterminate. In Re Cranston (1898, 1 Ir. Rep. 452) Lord Justice FitzGibbon said: "The essential attributes of a legal charity are, in my opinion, that it should be unselfish-that is, for the benefit of other persons than the donor-that it shall be public, that those benefited shall form a class worthy in numbers or importance of consideration as a public object of generosity, and that it shall be philanthropic or benevolent-that is, dictated by a desire to do good." Thus gifts for the benefit of a parish and gifts to churchwardens in aid of the poor rate are valid. Also gifts (a) for the benefit of a volunteer corps (Re Lord Stratheden and Campbell; Alt v. Lord Stratheden and Campbell, 71 L. T. Rep. 225; (1894) 3 Ch. 265); and (b to provide a library and plate for an officers' mess (Re Good; Harington v. Watts, 92 L. T.

any

:

Rep. 796; (1905) 2 Ch. 60). But, as pointed out in Theobald on Wills, 7th edit., p. 366, the limit of the legal conception of charity in this direction is that the gift must not be to encourage a mere sport, such as yacht racing (Re Nottage; Jones v. Palmer, 73 L. T. Rep. 265; (1895) 2 Ch. 649). As stated by Lord Justice Rigby in that case, it is probably impossible to define what is a charitable bequest, and it is certainly not advisable to attempt to do so.

NOTES OF RECENT DECISIONS NOT YET REPORTED.

BY OUR REPORTERS IN THE SEVERAL COURTS.

HOUSE OF LORDS.

Employer and Workman-Accident — Compensation Medical Examination-Second Examination-R ght of Employer toWorkmen's Compensatim Act 1906 (6 Edw. 7, c. 58), sched. 1 (4) (14).

In Jan. 1911, S., a collier, was injured by accident so as to be entitled to compensation under the Workmen's Compensation Act 1906. The accident was admitted and compensation paid. In June of that year S. resumed work at his old wages and worked till Aug. 1912, when he stopped work owing to an illness due to Bright's disease. In June 1913 he had recovered from this illness, but, as he claimed to be partially incapacited by the old accidental injury, he served his employers with notice that, unless he could obtain from them some light employment, he must have full compensation paid him. A week later he was examined by the employers' medical man. On the 10th Sept. he filed his claim in the Pontypridd County Court asking for compensation from the 12th Aug. 1912. The employers alleged that he had recovered. On the 22nd Sept. the employers required him again to submit to a medical examination, this time not by their own medical man, and, as he refused, moved in the County Court for proceedings to be suspended. The learned judge made such an order, and the Court of Appeal affirmed his decision: (see 7 B. W. C. C. 138).

Held, that the employer's right to require an injured workman to submit to a medical examination given by sched. 1 (4) was not restricted to a single examination. Under that clause a workman must submit himself to examination when it was reasonably demanded by the employer. Appeal dismissed.

as an

Application by the plaintiffs for judgment or a new trial in an action tried before Bray J. and a special jury at Leeds. The defendants were the executrix and executor of S. L., deceased, who had held certain public appointments under the P. Corporation and who died on the 6th Sept. 1913. It appeared that S. L was elected mayor of Pontefract on the 9th Nov. 1904. On the same day his son S. M. L., together with one G., were jointly appointed to the public appointments which S. L. resigned on his election as mayor of the borough. By an agreement dated the 16th Jan. 1905 S. L. assigned the goodwill of his businesses accountant and rent collector to his son S. M. L. and A. G. in consideration of the payment to him of £150 per annum for the period of five years "out of the said businesses," and of a further sum of £150 per annum for a like period" out of certain public appointments." In the event of those public appointments being abolished by reason of any change being made by the corporation during that period, the yearly payment of £150 payable out of such appointments was to cease. The further sum of £150 per annum having been regularly paid to S. L. for five years—that is to say a sum of £755-the plaintiff now claimed to recover that sum against the defendants as money had and received by the said S. L., deceased, to the use of the plaintiffs The Municipal Corporations Act 1882 provides : "Sect. 12 (1). A

person shall be disqualified for being elected and for being a councillor, if and while he (c) has directly or indirectly, by him. self or his partner, any share or interest in any contract or employment with, by, or on behalf of the council." At the time, Bray, J. left certain questions to the jury which, together with their answers, were as follows: (1) Did the deceased know that in entering into the deed of the 16 h Jan. 1905 he was doing something wrong, having regard to his duty to the corporation -Yes. (2) If he did not know it, ought he to have known it?— Yes. On these findings Bray, J. held that, while the agreement was wrong in the sense that it gave the deceased an interest in the employment of his son and G., the payment made under it could not be treated as a bribe or as a profit made by the deceased in any employment by the corporation, and he gave judgment for the defendants. The plaintiffs appealed.

Held, that there was no evidence that the deceased received the payments in the course of or by means of his position as agent of the corporation, nor that the money so received by him could be regarded as a bribe. Appeal dismissed.

[Mayor, Aldermen, and Burgesses of the Borough of Pontefract v. Lowden and others. Ct. of App.: Buckley, Pickford, and Bankes, L.JJ. March 24 and 25.-Counsel: for the plaintiffs, Scott Fox, K.C. and Waddy; for the defendants, Gore Browne, K.C., Waugh, K.C., and Shepherd. Solicitors: for the plaintiffs, Ward, Bowie, Porter, and Co., agents for Walter and E. H. Foster, Leeds; for the defendants, Blundell, Gordon, and Co, agents for Carter, Bentleys, and Gundill, Pontefract.] Insurance (Marine)-Reinsurance-Constructive total Loss-Com. promise between insured and Insurers of original PolicyBenefit of Compromise to Reinsurers.

Appeal from a decision of Bailhache, J. reported 111 L. T. Rep 1097; (1914) 3 K. B. 835 The plaintiffs' claim was upon two time policies of reinsurance, dated the 23rd Jan. 1913, upon the hull and machinery of the steamship K., valued at £20,500, and expressed to be against total and (or) constructive total loss only, warranted free from all average and salvage charges. The plaintiffs insured the K. against total and (or) constructive total loss only, and reinsured the risk with the defendants, the policy of reinsurance not containing the usual clause "to pay as may be paid thereon." The K. stranded, and notice of abandonment was given by her owner, who alleged that she was a constructive total loss. The plaintiffs refused to accept the notice of abandonment, and the owner brought an action against them which was compromised by the plaintiffs paying the owner less than the loss. The defendants were invited to agree to the compromise, but declined on the ground that there had been no constructive total loss in fact. In an action by the plaintiffs against the defendants on the policy of reinsurance, Bailhache, J. held that there was a constructive total loss in fact; that the defendants were disentitled to the benefit of the compromise, and were liable to the plaintiffs for the full amount of the reinsurance, subject to the benefit of any rights they might have had in respect of the abandonment of the K. if no compromise had been effected. The defendant appealed.

Held, that as the contract of reinsurance is a contract of indemnity, the plaintiffs could not make a profit out of the reinsurance, the case coming within the principle of Castellain v. Preston (49 L. T. Rep. 29; 11 Q. B. Div. 380). The plaintiffs, however, were entitled to add to their claim against the defendant their costs of obtaining the compromise with the insured. Appeal allowed.

[British Dominions General Insurance Company Limited v. Duder. Ct. of App.: Buckley, Pickford, and Bankes, L.JJ. March 16, 17, and 30.-Counsel: for the defendant, Maurice Hill, K.C. and F. D. MacKinnon, K.C.; for the plaintiffs, Adair Roche, K.C. and R. A. Wright. Solicitors: Thomas Cooper and Co.; Parker, Garrett, and Co.] Libel-Publication· Alleged Libel sent by Post in unsealed Envelope bearing a Halfpenny Stamp-All-ged Libel read by Addressee's Servant in Breach of Duty-Publication to Servant— Publication to Post Office Officials.

Appeal from a decision of Darling, J. The action was brought for libel by four children by their next friend suing their father. The alleged libel was alleged to have been sent by H. to his wife by post in an unsealed envelope bearing a halfpenny stamp, and addressed to the wife in her maiden name. The butler of the wife gave evidence at the trial that the envelope was delivered at the wife's house, and that he, being curious as regards the name in which the envelope was addressed, opened the envelope, took out the contents, and read them. At the close of the plaintiffs' case Darling, J. held that there was no evidence of publication as the butler had no right to open the envelope, whether sealed or not, and he also held that the words used were not capable of a meaning defamatory to the children, and he withdrew the case from the jury. The plaintiffs appealed. It was contended on their behalf (inter alia) that

there had been publication (1) to the butler; (2) to the Post Office officials.

Held, that there was no evidence of publication to the butler, as it was no part of his duty to open the envelope, and there was no presumption that he would open it and read the contents; nor was there any publication to the Post Office officials, for an unsealed envelope differed from a post card in that its contents did not meet the eye unless they were taken out of the envelope, and although the Post Office officials were entitled to open the envelope and examine the contents to see if the letter was liable to surcharge, there was no evidence that any official had in fact read the contents, and there was no presumption that an official would read this particular inclosure in the discharge of his duty. Appeal dismissed.

[Huth and others v. Huth. Ct. of App.: Lord Reading, C.J., Swinfen Eady, L.J., and Bray, J. March 25 and 26.-Counsel: for the plaintiffs, H. A. McCardie and Barrington Ward; for the defendant, G. F. Hohler, K.C. and C. Doughty. Solicitors: Calder, Woods, and Pethick, for Urry, Woods, and Pethick, Ventnor; G. F. Hudson, Matthews, and Co., for Ragan, Martin, and Frend, Tunbridge Wells.]

Mine Coal Mine Inspection Checkweigher Inspector Appointed by Workmen Whether Checkweigher eligible as Inspector-Coal Mines Act 1911 (1 & 2 Geo. 5, c. 50), s. 16Coal Mines Regulation Act 1887 (50 & 51 Vict. c. 58), s. 13.

Defendants' appeal from a judgment of Bailhache, J. in the commercial list, reported 112 L. T. Rep. 83; (1914) 3 K. B. 1175. By sect. 13, sub-sect. 1, of the Coal Mines Regulation Act 1887: "The persons who are employed in a mine and are paid according to the weight of the mineral gotten by them, may, at their own cost, station a person (in this section referred to as a 'checkweigher') at each place appointed for the weighing of the mine al, and at each place appointed for determining the deductions in order that he may, on behalf of the persons by whom he is so stationed, take a correct account of the weight of the mineral, or determine correctly the deductions, as the case may be." By sub-sect. 3: "A checkweigher shall not be authorised in any way to impede or interrupt the working of the mine, or to interfere with the weighing, or with any of the workmen, or with the management of the mine." By the Coal Mines Act 1911, s. 16, sub-s. 1," the workmen employed in a mine may, at their own cost, appoint two of their number or any two persons, not being mining engineers, who are, or who have been practical working miners, and have had not less than five years' experience of underground work, to inspect the mine" periodically on behalf of the workmen. The plaintiff was a checkweigher appointed by the workmen employed at the M. Colliery under sect. 13 of the Coal Mines Regulation Act 1887, the defendants being the owners of the mine. In Oct. 1913 he was appointed by the workmen to inspect the mine. The defendants refused the plaintiff permission to inspect the mine on the ground that as he held the position of checkweigher under sect. 13 of the Act of 1887, he was ineligible to make inspections under sect. 16 of the Act of 1911 Bailhache, J. held that a person holding the office of checkweigher at a mine was not thereby disqualified from being appointed to make inspections under sect. 16 of the Act of 1911. The defendants appealed.

Held, that the decision of Bailhache, J. was right. Appeal dismissed.

[Date v. Gas Coal Collieries Limited. Ct. of App.: Lord Reading, C.J., Swinfen Eady, L.J., and Bray, J. March 12 and 25-Counsel: for the defendants, Mitchell Innes, K.C and Harold Morris; for the plaintiff, Leslie Scott, K.C., and A. T. James. Solicitors: Bell, Brodrick, and Gray, for C. and W. Kenshole, Aberdare; Smith, Rundell, and Dods, for Morgan, Bruce, and Nicholas, Pontypridd ]

Mistake-Money paid under Mistake-Duress-Protest-Recovery of Money paid.

In

Appeal by the plaintiff from a judgment of Rowlatt, J. without a jury. The plaintiff from 1900 to 1912 carried on business as a dealer in produce near Spitalfields Market. He claimed from the defendant, who was the lessee of the market, an account and repayment of tolls on produce sold by the plaintiff at his premises, and paid by the plaintiff to the defendant under protest to avoid seizure of the plaintiff's goods and in the belief that the defendant was entitled to the tolls the alternative the plaintiff said that the payment was induced by the misrepresentation of the defendant that he had a right to the tolls. Rowlatt, J. held that the plaintiff could not recover the amounts paid as paid under mistake as the mistake was not as to the fact upon which liability depended, and, further, that there had not been an involuntary payment in order to avoid some immediate inconvenience, and notice should have been given that the plaintiff did not intend to surrender his rights. The plaintiff appealed.