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Vol. CXXXI.- No. 3560.



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590 ECCLESIASTICAL LAW.-Topic ...................... 17




CRIMINAL LAW AND THE JURISDIOTION OF MAGISTRATES.-Borough Quarter Sessions Topics-Legal System of Jersey-The Criminal in Flight: Science and the DetectivePunishments in American State

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GUARDIANS OF THE POOR OF THE CALNE UNION v. WILTS COUNTY COUNCIL. Local government Poor law-Maintenance of pauper lunatics

LEADING ARTICLES. &c. TO READERS AND CORRESPONDENT.. 165 LEADING ARTICLES.-Topics of the Week-Liability for Nonfeasanc)... 165 167 IRISH NOTES.......

OUR CANADIAN LEITAR .................. 167

Porcher Broughton-Mr. Charles
Simpson Samuell.......

Circuits of the Judges: Summer
Assizes-Rota of Registrars
THE GAZETTES................................. 185

The Law and the Lawyers.


THE Home Office has issued an interesting statement with regard to the expulsion of aliens under the Act of 1905 for last year. The main part of this document is naturally devoted to the question of the criminal alien, and it shows that during the five years that the Act has been in operation 1793 expulsion orders have been made against this class. England and Wales furnished 1711 of these, Scotland seventytwo, and Ireland ten, while 1276 of the English cases occurred in the metropolis. For 1910, 414 orders were made, as against 467 in the preceding year; and of the 414 orders made, four nationalities account for more than haif. During that year seventy-five aliens were found in the United Kingdom in contravention of expulsion orders previously made against them, this figure representing 4 18 per cent. of the total number of criminal aliens expelled since the Act came into operation, and a similar proportion has been observed in the preceding years.

Two points are dealt with in some little detail in this statement. In the first place, it is stated that it seems to be a common impression that aliens form a large proportion of the criminals of the United Kingdom, but the fact is that the proportion of alien prisoners to the total prison population has never at its highest exceeded 2.2 per cent. In the year 1910, while the total number of convicted persons received into prisons fell by 7.97 per cent., the aliens so received decreased by 11.87 per cent., falling to 2050, the lowest figure shown since 1895, and making their proportion to the whole the smallest for any recorded yearnamely, 122 per cent. The Home Office further points There can be little doubt as to the causes for this decline in the numbers of alien criminals in England and


Wales. They must be, on the one hand, expulsion and the fear of it; and, on the other hand, the diminution of the flow of alien immigrants into the country, whereby the supply is restricted at the source as it were,” and in this conjecture we think the department is accurate.

THE other question discussed relates to recommendations for expulsion, and it is truly pointed out that it has to be remembered that there can be no expulsion order made by the Home Office without the certificate of a court, and that the total of 2050 alien prisoners in England and Wales during 1910 yielded only 390 recommendations, or 19.02 per cent. The figures given clearly show that the courts, assisted, of course, by the police, might well use more readily their opportunities of setting in motion the machinery for ridding the country of the alien criminal, and in the tables given attached to the statement it will be seen that amongst the 699 alien prisoners in the metropolis and the 961 in the provinces not recommended for expulsion there were many who were convicted of serious crimes and sentenced to long terms of imprisonment. In only about 5 per cent. of the cases recommended has the HOME SECRETARY decided not to make expulsion orders, and in most of these cases considerations not always within the knowledge of the courts were held to justify the permission to the alien to remain here. Notwithstanding the diminution of alien criminals, there seems to be ample room for giving still more effect to the expulsion provisions of the Act.

Ir is further pointed out by the Home Office that another way by which expulsion could be made more effective by the courts consists in the treatment accorded to aliens who are found in the United Kingdom in contravention of the orders made against them. Instances are given of some of the sentences inflicted upon those who have returned in contravention of expulsion orders, and the lightness of some of these shows that the expelled alien may find it well worth his while to risk the existing penalty for his return. This penalty might be increased, and there can be no doubt that, if the full value of expulsion is to be got, the expelled alien who is found in the United Kingdom must be made to feel the full rigour of the law.

It certainly would be to the advantage of all concerned if greater uniformity could exist in the laws of the various parts of the Empire concerning naturalisation. Our own regulations are governed by the Naturalisation Act 1870, and under that statute an alien who desires to become naturalised must have resided in the United Kingdom for five years, or have been in the service of the Crown for that period, and also must intend to reside in the United Kingdom. So far as our oversea dominions are concerned, laws as to local naturalisation were permitted by the Legislatures of those portions of the Empire, and were by the same Act within the limits of such possession to have the authority of law. That right has been largely exercised, and each portion of the Empire has followed its own particular policy. The Imperial Conference has now accepted certain principles which mark a stage towards general citizenship of the Empire. It is now agreed that the five years period required for naturalisation in the United Kingdom-that is to say, Imperial nationality -may be spent anywhere within the Empire, but that nothing in any Imperial Act which may be passed should affect the validity of local immigration laws. Of course, this must bring about, as the Times points out, that there will be two kinds of citizenship within the same colony; and the ideal would, of course, be one." However, as our contemporary states, this position of things will be better than the present, and we may all hope that gradually, at all events, in some parts of the Empire local peculiarities as to naturalisation will be reduced.

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LIABILITY FOR NONFEASANCE. THE recent case of Dawson v. Bingley Urban Council (noted 130 L. T. Jour. 482) will be a useful authority upon the liability of local authorities for damage arising from default in the execution of their statutory duties-a question which in different forms is a matter of almost everyday occurrence. The urban council in this case were mulcted in damages because they had affixed in the wrong place a notice purporting to indicate the position of a fire-plug, owing to which piece of negligence the fire brigade were delayed in their efforts to extinguish a fire on Dawson's premises.

The case was argued on the question whether there had been misfeasance or only nonfeasance on the part of the urban council, they being under a statutory obligation to put up such signs : (38 & 39 Vict. c. 55), s. 66. At the trial Mr. Justice Grantham held that putting up a misleading sign was equivalent to not putting up any sign at all; that this conduct was, therefore, nonfeasance, and that no action would lie. The Court of Appeal unanimously reversed this judgment, holding that there had been misfeasance. But what makes their decision of value is that in the judgments of Lords Justices Farwell and Kennedy the opinion is expressed that, even (assuming there had only been nonfeasance, an action could have been maintained just the same. There is no doubt that the contrary view as taken by Mr. Justice Grantham is widely prevalent, so that the passages on the point in these judgments are of great value.

It is true that when acting as highway authority a local coupezi is under no circumstances liable for damage arising from nonfeasance; such liability can only arise when there has been some overt act of negligence commonly called misfeasance, this principle having its origin in the old case of Russell v. Men of Devon (2 T. R. 667). It is rather curious that this case, although always quoted, as an authority, does not seem to have actually decided this principle, as the plaintiff lost his case, not on the substance of his action, but on the point of form that the inhabitants of a county could not be sued as they were not incorporated. Subsequently the Aot 43 Geo. 3, c. 59, was passed enabling the county surveyor to be sued in the name of the county, and the principle that he was not liable for non-repair was followed and established by several later cases: (see McKinnon v. Pearson, 9 Ex. 609; and Maguire v. Liverpool Corporation, 92 L. T. Rep. 374; (1905) 1 K. B. 767),

As the powers and liabilities of the old surveyor of highways have been transferred to road authorities, they are in the same position and are not liable in respect of nonfeasance. But this immunity is restricted to cases where a local authority is acting quá highway surveyor, and if it can be shown that damage has been caused by nonfeasance in another capacity, then prima facie an action will lie. As Lord Justice Farwell said in the Bingley case (sup.): “The breach of a statutory duty created for the benefit of an individual or a class is a tortious act entitling anyone who suffers special damage to recover damages." This is the common law rule, and to it there are only two exceptions: (1) Where the nonfeasance is on the part of a surveyor of highways; and (2) where the statute creating the obligation also prescribes the remedy for its breach or neglect. The first exception has already been dealt with, and the second occurs most frequently. in the case of Acts for the carrying out of public works such as harbours, improving navigation, construction of sewers, and so on, and in these cases the question of liability to an action or otherwise will be determined solely by whether the Act prescribes some other remedy for default. But even when a public author.ty is primô facie not liable a question may frequently arise as to whether it is ae. a fact acting (or rather neglecting to act) with reference to the precise duty in respect of which immunity for nonfeasance is conferred.

Very common cases of this kind-in fact, cases of everyday occurrence are those arising out of damage caused by defective sewers, when it is always difficult to decide as to liability because local authorities are placed under two distinct obligations with regard to this duty. In the first place, they are under the obligation to sewer their district (sect. 15 of the Public Health Act 1875), and in case of default the remedy prescribed by the statute (sect. 299) is to. move the Local Government Board to compel them to carry out this duty. Therefore, as this is the prescribed remedy, no action or mandamus will lie: (Passmore v. Oswaldtwistle Local Board, 78 L. T. Rep. 569; (1898) A. C. 387).


It must, however, be observed that this principle does not apply to sanitary authorities in the metropolis as the London Acts give no jurisdiction of the same character to the Local Government Board, and therefore the ordinary remedies of mandamus or action are open to parties aggrieved: (Lee District Board v. London County Council, 82 L. T. Rep. 306). But all local authorities are under the obligation to construct their sewers properly and keep them clean and properly ventilated, and, as no special statutory remedy is prescribed for default in this respect, an action will lie for a breach of this duty although nothing more than nonfeasance can be alleged (Baron v. Portslade Urban District Council, 83 L. T. Rep. 363; (1900) 2 Q. B. 588). It is obvious that these two duties must frequently overlap when it becomes almost impossible in extra-metropolitan districts where the Public Health Act 1875 is in force to determine whether liability exists or not. For instance, in urban localities growing rapidly in population the increasing drainage requirements frequently over-tax the capacity of the sewers, with the result that during heavy rainfalls considerable dame is caused by sewage "backing-up into houses through the drair herwise invading private premises, the cause generally bei of the main sewers to carry away the extra

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Derby Corporation, 69 L. T. Rep. 791; (1894) 1 Ch. 431), but no action will lie in respect of it when the damage arises from the necessity for some general scheme of enlarged or improved sewerage system, as to enforce this requirement the statutory remedy is by application to the Local Government Board (Robinson v. Mayor of Workington, 75 L. T. Rep. 674 ; (1897) 1 Q. B. 619).

Of course, if some act of negligence apart from mere neglect to deal with the system of sewage disposal can be established, the case is different: (see Hawthorn v. Kannuluik, 93 L. T. Rep. 644; (1906) A. C. 105). On the other hand, too, cases are very common of illness and other damage arising from sewers being badly ventilated or improperly cleansed, and in all such cases the local authority will be liable: (Baron v. Portslade Urban District Council, sup.). Cases arising on these provisions are very numerous and the decisions are perhaps somewhat confusing; but the law may be fairly summarised thus: The Public Health Act 1875 imposes an absolute duty on local authorities to look after their sewers and to see that they do not become a nuisance, and an action will lie for a breach of this duty. If, however, the local authori'y can show that to meet the complainant's requirements or grievances some alteration or enlargement of their system of sewage disposal is necessary, then no action will lie, because the statute prescribes another remedy.

It follows, therefore, that no question of "misfeasance" or "nonfeasance enters into the matter, and these principles are also applicable mutatis mutandis to other duties imposed on public bodies. In fact, it is probably correct to say that at common law the doctrine of non-liability for nonfeasance has never any application in actions against public authorities, excepting when they are acting as surveyor of highways. The defence, too, is often easy to bowl over, as very little evidence is sufficient to show that something has some time been badly done which a jury will generally consider misfeasance: (see Borough of Bathurst v. MacPherson, 4 App. Cas. 256). As a rule, such cases turn very largely on questions of fact or opinion as to the real cause of the ground of complaint, and they generally offer a much wider scope to the skill of an expert witness than to that of an advocate.


THE distinctions that are being made in workmen's compensation cases are becoming ficer and finer as the construction of the statute law progresses. A case in point is M'Keown v M Murray, which came before the Court of Appeal on the 12th inst. The applicant was a flagman in front of a traction engine. It was proved that it was his duty to take turns with another flagman in walking in front of the engine. When he was not engaged in that work, it was his duty to stay in the van behind the waggon attached to the engine. At a time when he ought to have been walking in front of the engine with the flag. the applicant got on to a part of the engine called the crossbar. He had been told by the employer not to get on the engine, and it was no part of his duty to do so. Whilst he was on the cross-bar he fell, and was injured by the wheel of the engine. There was no allegation of wilful misconduct. The County Court judge held as a fact that the accident did not arise "out of" the employment, and dismissed the application. The Court of Appeal upheld this decision, pointing out that the case was indistinguishable from Brice v. Lloyd (101 L. T. Rep. 472; (1909) 2 K. B. 804), in which case also a workman had been injured at a time when he was on a part of his employer's works where he was not allowed to be. The moral of these cases is that in order to entitle himself to compensation in the event of injury, the workman must strictly observe the employer's injunctions.

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A MORE difficuit case under the Workmen's Compensation Act 1906 was that of Fennah v. Midland Great Western Railway Company. which was decided by the Court of Appeal on the 9th inst. The applicant was the widow of a deceased engine-driver in the employment of the respondent company. He had been examined by the company's doctor a short time before the accident, and had been certified as in good health. On the occasion of the accident he had been tightening a nut on the engine whilst it was standing at a station, his knee being on the frame of the engine and his other foot resting on the platform. He fell between the engine and the platform on to the permanent way, and died shortly after he was taken up. his countenance showing traces (as one of the witnesses said) of "great agony." There was no direct evidence as to what had caused the fall, whether it was caused by a sudden fainting fit or by an accident. There was, however, evidence that he had fainted on one or two previous occasions. There was no post-mortem examination of the body. The County Court judge found as a fact that the death was caused by the shock of the fall, and that the fall arose out of and in the course of the employment. The Court of Appeal decided that there was some evidence to justify that finding. The Lord Chancellor thought that the case was concluded by the decision in Clover, Clayton, and 'Co. v. Hughes (102 L. T. Rep. 340; (1910) A. C. 242). In that case the deceased workman, who had been suffering from an aneurism in an advanced stage, and whose condition was such that be might have died at any moment, even in sleep, died in the course of his work after an operation which demanded no unusual exertion. It was held that the man had died from an accident within the meaning of the Act of 1906. Whilst the case of M'Keown v. M Murray is a warning to workmen, Fennah's case is distinctl ning to employers

Secona Sheet Co.


A POINT of considerable general importance, especially to solicitors, an to a wife's power to pledge & husband's credit for the costs of divorce proceedings was decided by the Court of Appeal last week in Sullivan v. Sullivan. The petitioner had petitioned for a divorce a mensa et thoro, and, after the litigation had proceeded a certain length, stepe to effect a settlement between the parties by arbitration were taken. Ultimately, and before the deed of separation awarded by the arbitrator had been signed by the respondent, the petitioner (the wife) wrote to her solicitors stating that she and her husband had resumed cohabitation, and that it was unnecessary to proceed any further with the deed. The petitioner's solicitors then sued the petitioner for the amount of the costs incurred by her to them and recovered judgment. The sheriff made a return of nulla bona to a writ of execution. There was evidence before the court that at the time of the divorce proceedings the petitioner had separate estate and that her solicitors were aware of the fact. The solicitore then applied in the divorce proceedings for an order that the respondent should pay the wife's costs or that they should be given liberty to continue the proceedings. Mr. Justice Madden, on the hearing of that motion, decided on the facts that all through the proceedings they had looked to the wife's separate estate as the security for their coste, and that by so doing they had disentitled themselves to hold the husband liable. The Court of Appeal, before which the case came on an appeal by the solicitors, upheld this decision, but for a different reason. It was held that the wife had contracted in respect of the costs as agent for her husband, and that, the solicitore, in bringing an action and recovering judgment against the agent, had lost the right. of proceeding against the principal.


Amherst, Nova Scotia, June 2. THE Legislature of the province of Nova Scotia passed at its lask session the Partnership Act, which codifies the law of this province on that subject. The statute is a literal copy of the English Partnership Act of 1890, except that sects. 23 and 47 of the latter Act are omitted from the Nova Scotia Act. This adds another Act to the list of important statutes copied from the English statutebook by one or another of the various Legislatures of the provinces of Canada. The Bills of Exchange Act, a Dominion statute in force throughout Canada, is a close copy of the Imperial Act, and the Married Women's Property Acts of most of the provinces are closely modelled after the Imperial Act. Some of the provinces have passed Acts for codifying the law relating to the sales of goods in substantially the same terms as are found in the English Act, and there are numerous other instances where the provinces have enacted statutes dealing with less important subjects in the same terms as corresponding English Acts. The passing of these various codifying statutes, in addition to making the law more simple and certain, makes the English text-books of more assistance in this country, and is probably well pleasing to the student of comparative legislation.

The town of Springhill has a by-law which provides that any person who shall use insulting and provoking language to another on a public street shall be subject to a fine. The town is an important mining centre, and most of the miners have been on strike for upwards of a year, and the strikers refer to a workman who continues to work after a strike has been declared as a “scab.” The plaintiff charged the defendant under the by law with having called him a "scab." A great deal of evidence was given on behalf of the prosecution to show that the word was intended to be offensive to the people to whom it was applied, while the defence sought to neutralise the effect of such evidence by proving that the word was merely a synonym for "non-striker." The magistrate convicted the defendant. An appeal was taken to the County Court, and was allowed by the judge of that court, who said in part: "I have already said that I do not think the evidence made it clear that scab' of itself imports such a meaning, or differs in any way from strike breaker. Counsel strongly argues that it does, not only from the evidence which I have dealt with, but from the definition of the word to be found in the Standard Dictionary. That work defines 'scab' in part as follows: (5) A mean, dirty fellow'; hence opprobriously a workman who does not belong to or will not join or act with a labour union. We have nothing to do with the definition as a mean, dirty fellow any more than with its other definition as a surface formed on a sore in healing or as a disease in potatoes. That is an old and obsolete use of the word, arising, as Johnson says, from the itch, often incident to negligent poverty.' Shakespeare so uses it in the famous scene when Sir John Falstaff is enlisting his recruits (2 King Henry IV, act 3, scene 2). He calls Wart a good scab." But I think I am safe in saying since Dean Swift wrote, Tis vap'ring scab must needs advise, To ape the thunder of the skies,' the word with this meaning has not been used by any writer of any prominence or authority. One is surprised at the New York court, in the case counsel cites, adopting this definition as if it were of present-day application, and so being led astray. One might, as well regard Tory as nowadays insulting and abusive because it once meant a bog robber,' a lawless, plundering mosstrooper. But. the latter definition is what concerns us, and counsel does right in relying strongly upon it. The Century Dictionary definition is much the same. Both the Standard and Century are American

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works, and, while undoubtedly both are excellent dictionaries, neither carries with it any such distinction and by no means is so authoritative as the Encyclopædic Dictionary, which defines scab as a workman, who refuses to join in a strike and continues at his. work as usual. No suggestion of anything opprobrious in that, is there? Webster's Dictionary is much to the same effect, and so, I understand, is the International. That monumental work, March's Thesaurus Dictionary of the English Language, defines 'scab' very briefly as a non-union workman. We have thus four dictionaries against two, and it is clear little for edification can be gained from them. The appeal was allowed, but the defendant carried an. appeal therefrom to the Supreme Court of Nova Scotia sitting in Banco. The judgment of that court was delivered by Graham, Č.J., who, after dealing with the evidence of a number of witnesses as to the meaning of the word "scab" when applied by the strikers to the workmen, continued: : One can hardly escape from drawing the inference than when they do use an expression like scab they do intend to express that opinion-viz., that he is a very mean, low man or a person to be despised. Why do they not use the pleasant alleged equivalent, non-striker,' when they assail him day by day on his way to work and through windows, if those expressions mean the same thing? Do they consider it as effective in injuring his feelings, and driving him away from his means of livelihood and provoking him to violence? What do they mean when they say that one looks like a scab' or is a natural born scab'? And why do they call his place of residence Scab-row? Is it not evident that the meaning of scab is something more unpleasant. than non-striker'? It is not original with these people, of course; but organised strikes are quite recent in origin. What did the word mean before there were strikes? Did not the strikers lay hold of what the word then meant and use it with that meaning? And so it has been handed down to other strikers. I do not think that the medical term scale,' an incrustation over a sore, &c., has become obsolete among either medical men or people who have not many words in their vocabulary to enable them to avoid its use. Look at the combination scab faced' in the evidence. Take the word scabbed abounding with scabs, hence paltry, vile, worthless. One would think that all the equivalents for this word given in the dictionaries were now inapplicable and its use by writers like Shakespeare and Swift had become obsolete since strikers came in; that the word had become deodorised; that the only meaning now was a pleasant equivalent for a striker-a nonunion man. It is true modern writers avoid some of the words which were used by such men as Burns and Shakespeare; they do not wish to leave an unpleasant association in the mind of the reader. But I think some of them are still current on the back street. The word scab has not, I think, improved. In modern times, as well as formerly, there have been those who, at least when they were in the majority, have used an appellation expressive of derision or hatred to express their opinion of another race, or class, or sect in order to make them feel uncomfortable. Sometimes it was one word, sometimes another. The effect has been to cause quarrels and avoidance going round some other way and even going to another country to live. Whatever the word may have been in the mouth of the mob which applied it, the word 'scab' in the mouth of the strikers, addressed to the non-strikers, is not far behind any of them. I wish that the non-strikers were philosophers, and would regard it as a pleasant term that is unavoidable if you wish to distinguish between two classes. Perhaps one ought not to reverse a judgment which decides that. If it would only bind the parties carrying on or opposing the strike, it would be useful. But I think I have to identify myself with the New York court, which thought the word was opprobrious and when written was libellous per se. However, dictionaries and decided cases compared with this evidence which I have quoted." The judges are poor when were unanimous in allowing the appeal and affirming the conviction made by the magistrate. The case is reported sub nom, Rex Elderman (9 E. L. R. 459).


In Colville v. Small (22 0. L. R. 23 and 426) the court was -called upon to decide whether an assignment was champertous. "The original contract gave rise to a money demand which was absolutely assigned to the plaintiff upon the terms that he should recover the money and thereout pay the costs, and then divide the remainder equally between the assignors and the plaintiff. In retaining a solicitor to prosecute the action the plaintiff pledged his own credit, and had no right of indemnity against his assignor. "The court held the assignment to be champertous. The question then arose whether the champertous agreement was an answer by the defendant to the plaintiff's claim. Mr. Justice Middleton, who heard the matter at chambers, said on this point: "Does the fact that 'the assignment is champertous afford any answer to the plaintiff's claim? The assignment is absolute, and vests the right of action in the plaintiff, and he alone can sue. Is the existence of a champertous agreement between the plaintiff and his assignors any reason why the defendant should not be compelled to pay his debt? Is it not entirely, res inter alios-a matter of no concern to the defendant? So the plaintiff presents his case, and no doubt many American decisions go to support his contention. The weight of Authority, however, supports the rule that the fact that there is an illegal and champertous contract for the prosecution of a cause of action is no ground of defence thereto, and can only be set up between the parties when the champertous agreement itself is sought to be enforced: (6 Cyc. 881). This is the law of England and Ontario only when the action is brought by the person in whom the cause of action is originally vested. When the action is

brought by an assignee in his own name and the assignment is shown to be champertous, then the courts treat it as invalid to use the word of the statute and void for all purposes, and, the illegality appearing, the court refuses, upon grounds of public policy, its aid to the plaintiff whose title is tainted by illegality (Prosser v. Edmonds, 1 Y. & C. Ex. 481; Little v. Hawkins, 19 Gr. 267; Hilton v. Woods, 16 L. T. Rep. 736; L. Rep. 4 Eq. 432). The precise point is clearly stated by Dorion, C.J. in Power v. Phelan 4 Dorion, 57): A contract founded on an unlawful consideration has no effect, and a consideration is unlawful when it is prohibited by law or is contrary to good morals or public, order. Such

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a contract gives no right of action to recover from third parties the claims assigned. This was said of a champertous assignment of the claim sued upon. He ordered the action dismissed. An appeal was taken to the Divisional Court, where the decision was confirmed. Mr. Justice Riddell said in part: "We cannot consider what the law should be, but only what it is. Were the matter free from authorities binding upon us, I should for my part dissent in toto from the proposition that there is any moral wrong in such a transaction-the old judges who considered such a transaction malum in se had the same bad opinion of an assignment of a chose in action of any kind. It was necessary to call upon the custom of merchants (merchants are generally reasonable and non-technical in their customs) to support the assignment of mercantile paper. I cannot work myself into a state of indignation over a transaction of this character, as the venerable sages of the law did, particularly as in the present state of the law, as everyone admits, had the real creditor assigned the whole of the claim to the plaintiff without stipulating for the return to him of a part, the transaction would have been wholly innocent and valid, although at one time such a transaction would have drawn down upon the offenders the wrath of the courts. Why one may assign the whole, but not the half, of a claim is one of the mysteries of statute law. The common law rule is but a branch of the application of the maxim Beati possidentes, never baldly expressed, but in reality underlying much of our common law. Parliaments and Legislatures have been forced to cause a relaxation or reversal of many rules having that maxim as their basis-something yet remains to be done. But the law as it exists is correctly stated and applied by my learned brother, and the appeal should, so far as this ground goes, be dismissed."

The case of Giffard v. Calkin (9 E. L. R. 385), an action brought in the Supreme Court of Nova Scotia to enforce a judgment recovered in the Supreme Court of New Brunswick by default, is interesting in view of the contention that the provinces of Canada are not to be considered as foreign jurisdictions in their relation to one another for the purpose of enforcing in one a default judgment recovered in another. The defendants were domiciled in Nova Scotia, and resided there when served, and declined to appear in the Supreme Court of New Brunswick. There was no express agreement to submit to the jurisdiction of the court of New Brunswick. Judgment was obtained by default, and an action was subsequently brought on that judgment in the Supreme Court of Nova Scotia. Counsel for the plaintiff also contended that an agreement to submit to the jurisdiction could be implied, and ought to be implied, in this case from the fact that the plaintiff, who was the payee of the promissory note upon which the New Brunswick judgment had been recovered, resided in New Brunswick when the note was made, although the note was made in Nova Scotia and delivered to the plaintiff's agent in Nova Scotia, and no place of payment was mentioned in the note. The action was tried by Mr. Justice Meagher, who said in respect to the first contention that "the judgment must, of course, be regarded as a foreign one. Nevertheless, I submit it cannot be fairly said that the sense in which foreigners--that is, aliens-are referred to or regarded in the various decided cases relating to judgments of a foreign country against foreigners-I mean aliens should be held applicable to British subjects living in different provinces of Canada, and who are affected by the Bills of Exchange Act in the same degree. If I correctly apprehend what Lord Selborne said in Sirdar v. Rajah of Faridkote (1894) A. C., at the top of p. 684), it supports this distinction. The judgment sought to be enforced there was recovered in a country not forming part of the British Empire against a party who was an alien as to that forum; if I am right as to this, then Lord Selborne's observations must be regarded in the light of that situation alone, and should not be held to extend beyond that. Piggott at pp. 7, 207, and 208 points out a conflict between the case just mentioned and that of Ashbury v. Ellis (69 L. T. Rep. 159; (1893) A. C. 339). I understand the law to be that a judgment recovered in a foreign country against an alien who has not in any way submitted to the jurisdiction and was not resident in it when the action was commenced, nor served with process while within it, does not create any duty or obligation against him to satisfy it. That seems to be the principle of Schibsby v. Westenholz (24 L. T. Rep. 93; L. Rep. 6 Q. B. 155).” In reference to the contention that a contract to submit to the jurisdiction could be implied, the trial judge said in part: "Lord Selborne in the case adverted to says that such a contract cannot be implied; but there would be greater reason for not implying it in regard to an alien towards the country of the agreed or intended forum, and of whose laws he might well be deemed ignorant, than in the case of a Nova Scotian in relation to New Brunswick, and especially as he knew, or must be taken to have known, that the law governing the contract there was identical with that in Nova Scotia. I refer, of course, to the Bills of Exchange Act.. I feel

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quite justified in saying that when the parties contracted for the payment of the note in New Brunswick they regarded and intended that province as the place where a suit to enforce payment would be brought; the defendants knew, or must be taken to have known, what the contract meant in that respect and what might be done under it. They quite understood, if they failed to pay the note, that it constituted a breach of the contract, and that breach would necessarily occur in New Brunswick. Consequently, applying the language of Lord Halsbury in 42 Ch. Div., at p. 333, above quoted, they must be taken to have regarded New Brunswick as the place where a remedy would be sought for such breach, and therefore there was ground for saying they contracted to submit to the forum of the plaintiff's residence, with all the procedure and consequences incident to the exercise of jurisdiction by the courts of that province." In the result the trial judge, while expressing doubt, gave judgment for the plaintiff. On appeal to the Full Bench, the decision was reversed, and the law laid down in Emanuel v. Symon (98 L. T. Rep. 304; (1908) 1 K. B. 302) was held to cover both branches of the plaintiff's contention.

The Bills of Sale Act of Nova Scotia provides that every bill of sale, or a true copy thereof, shall be filed in the registry of deeds for the registration district in which the grantor resides at the time of the execution thereof, and that every bill of sale shall as against purchasers and creditors only take effect and have priority from the time of filing. In Bently v. Morrison (44 N. S. R. 476) one defendant had given another defendant a bill of sale, and an agreement was made between' the grantor and the solicitor of the grantee that the bill of sale should not be registered. In a contest between the creditors of the grantor and the grantee under the bill of sale the question arose what effect was to be given to the unregistered bill of sale. The trial judge held that the bill of sale was fraudulent under the circumstances of its execution and the agreement not to file it, and because the grantor was then in insolvent circumstances to the knowledge of the grantee. He set the bill of sale aside. An appeal was heard by five judges. Mr. Justice Russell was of opinion that the agreement not to file was a fraud on the statute, and rendered the transfer void as against creditors. He thought that the only consequence of non-registration of the bill of sale was to subject the transfer under the instrument to the risk of losing the benefit of the security; but that where there was an agreement not to register it the effect might be to render it void; however, it must be for the court in each case that comes before it to take into consideration all the surrounding circumstances and to see whether, having regard to all these circumstances, there is an intention to commit an actual fraud against the general body of creditors," and that the actual fraud referred to in the authorities was either the statutory fraud of obtaining an unjust preference or the actual fraud of inducing persons to become creditors on the faith of an apparent solvency and prosperity which were unreal. The case of Ramsden v. Lupton (29 L. T. Rep. 510; L. Rep. 9 Q. B. 17) was not called to the attention of the court. The other judges concurred with Mr. Justice Russell.. F. L. MILNER.


WITH reference to the article on " Bequests to Servants" (ante, p. 96), we have received from Messrs. Forwood and Williams, of Liverpool, a shorthand note of the judgment in Williams v. Attorney-General, recently decided in the Chancery Court of Lancashire. A testator, after specific legacies to certain named persons in the employ of himself or companies with which he was connected, made the following bequest: "A year's salary to each clerk not included in the above list who shall have been ten years in the employ of Elder, Dempster, and Co. or Elder, Dempster Shipping Limited; a half-year's salary to each clerk not mentioned or referred to above who shall have been five years in the employ of Elder, Dempster, and Co. or Elder, Dempster Shipping Limited; and three months' salary to each clerk not mentioned or referred to above who shall have been one year in the employ of Elder, Dempster, and Co. or Elder, Dempster Shipping Limited." It was argued on the authority

of Blackwell v. Tennant (9 Hare, 551) and the later decisions that no "clerk" could take who was employed at less than a yearly salary. Vice-Chancellor Leigh-Clare, however, held that these cases did not apply. For, first, the testator had not used the general expression servants," but the limited expression "clerks "; secondly, he had used three different expressions as to the amount of the legacies. The testator could not, therefore, be supposed to have been dealing with three classes of clerks as distinguished by anything but length of service. This case forms an interesting addition to the limitation upon the doctrine in Blackwell v. Tennant (ubi sup.) imposed in Re Earl of Sheffield; Ryan v. Bristow (104 L. T. Rep. 412) discussed by our contributor in the article already mentioned.

THE question whether the negligence of the contractor, which was complained of by the plaintiffs in the recent case of Robinson v. Beaconsfield Urban District Council (noted ante, p. 104), could be brought within the principle of casual or collateral negligence -88 it has been styled in some of the old cases-thus exempting the defendant council from liability, is one of much importance to municipal and other local authorities. It was very clearly laid down by Lord Blackburn in Dalton v. Angus (44 L. T. Rep. 844; 6 App.


Car. 740) that "ever since Quarman v. Burnett (6 M. & W. 499 it has been considered settled law that one employing another is not liable for his collateral negligence, unless the relation of master and servant existed between them." Thus, if a contractor is employed to do certain work, the employer is not liable for the collateral negligence of that contractor or his servants. But his Lordship was careful to point out that failure on the part of the contractor to perform the (duty of his employer-whether such failure is attributable to negli gence or not-does not exonerate the employer. The employer cannot escape responsibility by delegating his duty to a contractor: (see also Hardaker . Idle District Council, 74 L. T. Rep. 69; (1896) 1 Q. B. 335). In Robinson's case (ubi sup.) the defendant council, in pursuance of sect. 42 of the Public Health Act 1875 (38 & 39 Viot. o. 55), undertook the cleansing of the cesspools of the houses in part of their district. The work was carried out by means of a sewage van belonging to the defendant council and worked on the vacuum or exhaust extracting principle. At first the work was performed by hired men and horses and a foreman employed by the defendant .council and under the directions of their surveyor. The sewage was pumped from the cesspools and was deposited, by arrangement with the neighbouring farmers, upon their lande. Subsequently a contract was entered into with an independent contractor to do the work on the terms specified in our note. It will be observed, however, that no reference was made in the contract as to the disposal of the contents of the cesspools after they had been removed therefrom. There was probably an understanding with the contractor that the former practice with respect to such disposal should always be rigidly adhered to, inasmuch as it was that which was usually followed by the contractor. But there was no express contract as to what should be done with the sewage. On one or more occasions the contractor, utterly disregarding previous custom, and in obvious breach of all rights of the plaintiffs, deposited sewage upon their land, thereby causing a serious nuisance. The Court of Appeal, adopting the view taken by Mr. Justice Joyce in the court of first instance, held that the defendant council were liable for this grossly offensive act of the contractor. They based their decision on the simple ground that in the contract the defendant council had omitted to enter into any arrangement with the contractor as to the disposal of the sewage. The contract was merely ove for emptying the cesspools by the contractor. As regarded the place of deposit for the contents of the cesspools, the contractor undertook no duty. That duty was retained by toe defendant council, doubtless unintentionally, but nevertheless fully and effectually. The Court of Appeal abstained from deciding anything with regard to what would have happened if the contract had contained provisions as to the disposal of the sewage. But there is every reason for assuming that, even had the defendant council contracted as to that disposal, they could not have evaded their responsibility in the event of the contractor creating a nuisance. The doctrine of respondeat superior would seemingly still have applied. It would not have been a "collateral negligence" by the contractor, relieving the defendant council of all liability, but a failure on the part of the contractor to perform the duty of his employers. Their obligation would have been to see that the contractor did his work properly. That obligation naturally places local authorities in serious difficulty. There appears, however, to be no means by which it can be avoided. Apparently all that can be done is to "bargain with the contractor that he shall perform the duty, and stipulate for an indemnity from him if it is not performed," as was said by Lord Blackburn in Dalton v. Angus (ubi sup.). And if he be a man of straw, the risk of his failing to perform the duty of the employer is one always capable of being insured against.

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THAT the employer of a workman, who has met with an accident and has thereby sustained an injury which is attributable to his "serious and wilful misconduct," should nevertheless, in certain events, be liable to pay compensation under the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58) not unnaturally excites much indignation. He is not so liable, it is true, "unless the injury results in death or serious and permanent disablement" (see sect. 1, sub-sect. 2 (c). But if the injury were merely slight, it would probably be a matter of comparative indifference to the employer-or, more strictly speaking, to the company in which his workmen are insured against accidents-whether or not compensation were payable, inasmuch as it would be only temporarily so. Not thus unimportant, however, is it in the case of death or permanent disablement. It is by no means easy to comprehend the reason of the Legislature for introducing this distinction, throwing a burden on the employer in circumstances where none should properly exist, since generally the obtuse behaviour or flagitious disobedience of the workman would alone be the causs of the accident. But whatever the reason was for making "serious and wilful misconduct " no ground for refusing compensation if a workman dies or becomes eeriously and permanently disabled, such is now the law. That being so, it is very readily apparent why eo little stress-or, rather, no stress at all-could be laid on the fact that in the recent case of Harding v. Brynddu Colliery Company Limited (noted ante, p. 147) the workman there had been guilty of "serious and wilful misconduct." As appears from our note, the workman died, his death being the consequence of his flagrant disregard of the prohibition of the overman that he should enter the dangerous place that he did. Having died, his "misconduct" became immaterial. But there still remained the question whether his death was due to an "accident arising out of and in the course of the employment " in which he was engaged. And in respect to that there was a quite intelligible want of unanimity of opinion in the Court of Appeal. The Master of the Rolls (Cozens-Hardy) and Lord Justice

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