After hearing the evidence on two occasions, judgment was reserved.

complaints to the contractors who were responsible. The contractors who were responsible made no complaints to the company, and no complaints apparently were made up to the time of the accident. No repairs were made by the district council. Finding, as I do, as a fact that defendants had reinstated the road to the satisfaction of the road authority, then follows the much more difficult question-Would that exonerate them from responsibility if the first questions were found against them? In other words, assuming the work to have in fact been done negligently so that the cover projected and was a source of danger from the first; assuming, also, that through some remissness on the part of the surveyor the work was passed in spite of this negligence so that the reinstatement was in fact done to the satisfaction of the road authority and the provisions of sect. 27 were complied with, could the company still be liable under sect. 55 for their negligence in not properly reinstating? There is no authority directly in point, but I have come to the conclusion, with much hesitation and doubt, that Mr. Acton's contention is the correct one. I have been led to this by the observations made in the Court of Appeal and the House of Lords in Aldred v. West Metropolitan Tramway Company (65 L. T. Rep. 138; (1891) 2 Q. B. 398) and Dublin United Tramway Company v. Fitzgerald (87 L. T. Rep. 532; (1903) A. C. 99). Both these cases deal with the obligations imposed by sect. 28, the obligation, viz., to repair and keep in repair that portion of the road which lies between and extends to a certain distance beyond the rails of the tramway. This duty, like that imposed by sect. 27, is to be performed to the satisfaction of the road authority. The view, therefore, which is to be taken of the effect of these words in the one section may well be a guide to the proper construction to be placed on them in the other. Now, in the former of these cases Lord Esher, speaking of Howitt v. Nottingham Tramway Company (50 L. T. Rep. 99; 12 Q. Div. 16), and approving of the decision in that case, used this language: The court said sect. 28 imposes on the tramway company prima facie a liability to any person injured by reason of such portion of the roadway not being kept in good condition and repair to the satisfaction of the road authority. I do not think that the view taken as to the prima facie liability of And again: the tramway company went further than that.”

that

His HONOUR. This is a case in which the plaintiff claims damages for personal injuries which he sustained from falling over a cable manhole cover belonging to the defendants which had been placed by them in its position and which was said to be defective. The defect alleged was that it projected above the level of the surrounding pavement. There was no allegation that the cover in itself was in want of repair. The first question to be decided was: Whether the tramway company were guilty of negligence at the time the work was done that is to say, whether, after placing the manhole in position, they failed properly to make good the surrounding pavement and left the cover projecting in such a way as to be a source of danger to the public. It was admitted that if I answered this question in the negative the defendants would be entitled to judgment. But two other points were taken which I shall mention later. Now, on this first question there was a conflict of evidence. [His Honour reviewed the evidence, and continued:] On the whole, I have come to the conclusion that the plaintiff has failed to establish that the work was done negligently. I am sorry for the plaintiff, who has met with a bad accident, but this is the result which I am driven to on a careful review of the whole of the evidence. This really disposes of the case, but there are two other points taken by Mr. Acton on which I should like to say a word or two. The first was this. Mr. Acton contended that even if I found the facts against him on the first question, yet if I was satisfied that the work of making good the pavement had been done to the satisfaction of the road authority, then, although the road authority might have been to blame in being so satisfied, the obligations which rested on the tramway company were discharged. As to this, I must refer to the sections of the Act of Parliament. This work was done under powers given by the Tramways Act 1870. Except for that Act the tramway company would have had no right to break up roads. The power to do so was fenced round by certain safeguards. They were at liberty to break up portions of the road, and that had to be done under the superintendence and to the reasonable satisfaction of the road authority under sect. 26, and accordingly Mr. Grimshaw, who was surveyor to the road authority, and his subordinate, Mr. Shaw, were the people under whose superintendence it was done. After that work was done it became, under sect. 27, their duty to do certain things. Amongst others, "to fill in the ground and make good the surface, and to the satisfaction of the road authority restore the portion of the road to as good condition as that in which it was before it was opened and broken up. It is clear that so far as the reinstatement of the road is concerned, which alone affects the question we have to deal with, the only obligations expressly imposed by the Act are those contained in this section; and the question is whether, if they have complied with this section, the company can be held liable. I say nothing about the time within which the work should be donea matter dealt with in the earliest part of the section—because no point was raised as to that. But Mr. Merriman relied on sect. 55, the effect of which is to render the company liable for accidents arising from any act or default on their part by reason or in consequence of any of their works. It is true that "act or default" in that section had been held to mean "wrongful act or default": (Brocklehurst v. Manchester Tramway Company, 55 L. T. Rep. 406; 17 Q. B. Div. 118). But Mr. Merriman's contention was that, if the company in reinstating the pavement left it in a condition in which it was a source of danger to the public, that would still be a wrongful act although the work had been done to the satisfaction of the road authority. In other words, compliance with sect. 27, while it would relieve the company from the penalty the section inposed, would not necessarily be a discharge of their duty to the public nor relieve them of responsibility under sect. 55. Moreover, on the question of fact Mr. Merriman asked me to hold that it had not been established that the work had been done to the road authority's satisfaction. On this question of fact, however, I must find against him. It is true no written certificate had been given by the surveyor, but the Act does not require one, nor, indeed, any special formality by which the authority are to indicate that they are satisfied. I find there were several interviews. On many occasions Mr. Grimshaw was about the work, and his subordinate, Mr. Shaw, and they were there for the purpose of performing the duty cast upon the road authority by the Act. On some occasions he went round with the representatives of the company who were doing the work to see if complaints made had been rectified. At a later stage a list of matters requiring rectification was handed to the contractors who were doing the work, and after the work had been done there was a further inspection to see whether those matters had been attended to. Mr. Grimshaw admits that this manhole was not in the list. He made no complaints with regard to it, and on this part of the case I feel very little difficulty in finding that, whether Mr. Grimshaw was or was not sufficiently careful, yet he was satisfied with the making good of this pavement. After that time he made no

It was argued that sect. 55 prevented the court from putting that construction upon sects. 28 and 29. It appears to me that that section is capable of being construed so as not to contradict what I have stated to be the true construction of the previous sections." In the Dublin case Lord Halsbury, at p. 105, says: I read the statute in its ordinary and reasonable interpretation. It says: You the tramway company are to be in the first instance the persons taking the care and guardianship of this portion of the public highway, but, although we cast that duty upon you to keep it in such a condition as not to be a nuisance, we do not make you an independent road authority; you shall act under the direction of the ordinary and usual authority; and if you do that your obligation is discharged." I agree that these cases can be distinguished, but they tend in my opinion to support the view at which I have arrived. Mr. Acton's third point was that the projection here was so slightinfinitesimal, I think, he called it as not to amount to an actionable nuisance. I agree that it is not every inequality of surface that would give rise to an action if a foot passenger tripped over it. Pavements and roadways cannot be expected to be absolutely free from the least unevenness, and in every case it must be a question of fact whether the It is not necesparticular projection amounted to a nuisance.

sary to decide it in this case. On Mr. Acton's first two points I decide in favour of the company, and there must be judgment for defendants with costs and two expert witnesses and plans.

RECENT DECISION.

HARVEY (app.) v. LEVINE (resp.).

Workmen's Compensation Act 1906.

When the owner of a garden employs a labourer to cultivate it, the cultivation of the garden is "the employer's business," although it may not be his chief business. A labourer so engaged is a. "workman" within the meaning of the Act. The fact that his can make no difference. employment is of "a casual nature Hill v. Begg distinguished.

AT the Norwich County Court, on the 7th May, His Honour Judge Mulligan, K.C., gave judgment in this case.

The respondent is a dealer in antiques and owns a house and garden in Unthank-road, Norwich. Two years ago he employed the applicant to cart a mound of earth from one part of his grounds to another. The applicant was thus occupied for a month. Since then he has worked one or two days at a time in the garden as and when required. On the 13th Nov. 1911 he was engaged to get mould from a heap and spread it over the grass.

Before he had finished he went to loose and move a tethered goat belonging to the respondent. The goat butted and injured his thigh so that he was incapacitated for fourteen weeks.

. Keefe, for Harvey, claimed compensation.

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"

Dodson, for the respondent, contended, first, that Harvey was not a workman (Hill v. Begg, 99 L. T. Rep. 104; (1908) 2 K. B. 802); and, secondly, that this was not an injury by accident arising out of the employment.

His HONOUR.-I find that the employment of Harvey was of a casual nature." Was he employed otherwise than for the purposes of the "employer's trade or business"? This depends on the meaning of the word “ business." That word has no technical signification. It bears no trade mark. Its user is free and common to all. If the cultivation of a garden engrosses the mind and occupies the hand of the owner, it is beyond all doubt the owner's business in the ordinary and popular acceptation of the term. If instead of doing the work himself he delegates it to another, the business remains his. Tilling the garden may not be so important to the respondent as the pursuit of antiques. But it is none the less his business. It follows that Harvey was employed for the purposes of the employer's business and not otherwise, and that he was a "workman" within the meaning of the Act. Hill v. Begg was based on a fact which does not exist here. There the Court of Appeal held that a man engaged to clean windows in the private residence of a stockbroker had merely a domestic engagement.' They treated it as a slight service (operula) altogether unconnected in fact with the purposes of the employer's trade or business at his home or elsewhere. As to the second contention, Harvey said it was necessary for him to loose and remove the goat so that he might go on with his work. This was denied. The distance of the spot at which the accident happened from the place at which Harvey should have been at work was so great that I think it was not any part of his service or duty to go within the ambit of the tethered goat. Hence the applicant fails.

CRIMINAL LAW AND THE JURISDICTION OF MAGISTRATES.

BOROUGH QUARTER SESSIONS. Shrewsbury, Friday, June 28, at 19.30 | Worcester, Friday, June 7, at 10.30.

Larceny by Finding.

A RECENT decision again draws attention to a doctrine of the criminal law which has undergone considerable modification, and to some extent an alteration, under the decisions of the courts during the last few centuries. Upon an indictment for the larceny and receiving of some iron which had been taken either from the banks or from the bed of a canal, the prisoner was found guilty. The only evidence of property adduced by the prosecution was that the iron was upon the banks of the canal or in the canal, and that therefore the canal owners had a special property in the iron as being upon their premises, to which the accused had no right of access. The Court of Criminal Appeal quashed the conviction on the ground that the evidence was also consistent with the contention that the property in the goods had been abandoned by the owner, and that, if the prisoner had believed this to be the case, no indictment for larceny or receiving would lie. As late as at the end of the sixteenth century, the courts inclined to the opinion that if a man lost his goods, and another found them, and, not knowing the owner, converted them to his own use, this was not larceny in the finder: (3 Coke's Institutes, 108). In 1 Hale, 506, this doctrine is stated as being good law, even though the finder denied the finding of the goods or secreted them. From the end of the eighteenth century onwards, however, this rule has received considerable modification. It was stated in Thurborn's case (1 Den. 387), as approved in Rex v. Mortimer (99 L. T. Rep. 204), that the true view was as follows: "If a man finds goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them, with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny; but if he takes them with the like intent, though lost or reasonably supposed to be lost, but reasonably believing that

the owner can be found, it is larceny." Thus where a passenger has left property in a train or public vehicle, it appears to be larceny in the servant of the railway company or the owner or driver of the vehicle if he appropriates the property instead of taking it to the lost property office, inasmuch as a reasonable man would be taken to believe that under such circumstances the owner could be found: (Reg. v. Pierce, 6 Cox C. C. 117). It is to be observed that it is a necessary ingredient of the offence of larceny by finding that the prisoner should at the time when he finds the goods believe that the owner can be found, so that it is not sufficient to show that he intended to appropriate them at the time of the finding, and that he acquired the knowledge of who the owner was before the actual conversion: (Reg. v. Glyde, L Rep. 1 C. C. R. 139; Reg. v. Deaves, 11 Cox C. C. 227). In Reg. v. Knight (12 Cox C. C. 102) the Court for Crown Cases Reserved held that the proper question for the jury was not whether they are satisfied that the prisoner could have found the owner, but whether they are satisfied that he himself believed he could find the owner. It will therefore be seen that a wide doctrine which must have operated greatly in favour of persons charged with this form of larceny has been narrowed down by the judges into a rule of law which must cover the majority of the cases where the finder of lost goods appropriates them to his own use. Doubtless the alteration or modification of the original doctrine, approved by Coke and Hale, is more adapted to the improved means of communication and conditions of society which now obtain. It is doubtful whether Lord Coke would have applied the doctrine as stated by him to the case of a common carrier, or the driver of a vehicle in his days, if such a place as the lost property office at Scotland Yard had then existed.

Cross-examination of Prisoners.

THE Court of Criminal Appeal has given judgment on an important question affecting the construction of sub-sect. (ƒ) of sect. 1 of the Criminal Evidence Act 1898. That sub-section enacts that "a person charged and called as a witness in pursu ance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution." In the case in question, the witnesses for the prosecution were subjected to a cross-examination by the prisoner's counsel which, though necessary for the purposes developing the defence, in fact involved an imputation on the character of the witnesses, inasmuch as it suggested that they had committed the offence wherewith the prisoner was charged. No distinction is made by the language of the section between cases of this kind and cases where the attack is made merely in order to test the credibility of the witnesses for the prosecution. The Court of Criminal Appeal, in holding that the course taken by the prisoner's counsel made the prisoner liable to crossexamination under the section, would seem, therefore, to have given effect to the intention of the Legislature as expressed in clear and unambiguous language.

The position enunciated by the Attorney-General in the prosecution of the suffragette leaders, of acting solely on his own responsibility utterly irrespective of political considerations, is in strict accordance with constitutional practice. In deprecating an attack upon the Government in reference to the institution of the prosecution, Sir Rufus Isaacs said that the full responsibility of the prosecution was vested in him in discharge of his duty as the chief law officer of the Crown. Whether or not he was in favour of woman suffrage, it became his duty, when there an attack upon the public, to take care that that attack was brought to the bar of justice. person to whom the State intrusted the duty, and if a prosecution ought to be instituted and would rightly be blamed. That being so, he had undertaken the responsibility of conducting the case when undoubtedly he had

was

He was the

was not, he

of

66

matters of far greater responsibility to which to attend. In a converse case, when the Government of the day was charged with neglect of duty in not instituting criminal proceedings against Mr. Whitaker Wright, Sir Robert Finlay, as Attorney-General, took the responsibility solely on himself, and thus enunciated the quasi-judicial position of the Attorney-General in reference to the question of the prosecution of, or the forbearance from the prosecution of, offenders. On the 2nd Feb. 1904, speaking in the House of Commons, Sir Robert Finlay said: I wish to make clear one matter on which I think there is a good deal of misconception. It seems to have been supposed that the decision as to not putting the Director of Public Prosecutions in motion in the case of Whitaker Wright was the decision of the Government. It was nothing of the kind. The sole responsibility for that decision rests upon myself as Attorney-General. It is not a case in which the Government decide. It is not a case in which the Government are advised by the law officers. The law casts upon the Attorney-General the duty of deciding upon such a case in what I may call almost a judicial capacity. In the discharge of the duties which devolve upon him, no other member of the Government can or would dream of endeavouring to interfere with his discretion. responsibility of the matter is not one which is to be shared with any of his colleagues. I am the first to acknowledge the invaluable assistance which I have derived in this and in all other cases from the gentlemen who have co-operated with me, but the decision rests with the Attorney-General, and it is the Attorney-General alone who is answerable to the House and the country for the manner in which he exercises his responsibility. In dealing with the question as to putting the Director of Public Prosecutions in motion, the Attorney-General, as I have said, must decide almost as if he were a judge. It is for me to decide in a quasi-judicial capacity. Any AttorneyGeneral would be unfit for his position who, because a particular prosecution would be a popular thing to do, sets the Public Prosecutor in motion without being satisfied that it is a proper thing for that intervention. Indeed, when a case has in it materials which are likely to influence public feeling, I think it is the duty of the Attorney-General, under whose orders the Public Prosecutor has to act, to be very cautious as to what his action is."

LEGISLATION.

Course of Business.

The

THE fact that nearly one-half of the session has passed away makes it of interest to note the progress made in the legislative programme. The King's Speech adumbrated as the leading measures of the year those relating to Home Rule, Disestablishment, Electoral Reform, and the Amendment of the Law of Nationality. Somewhat vague reference was made to other legislation connected with social and industrial reforms. The Irish and Welsh measures have passed their second readings, while electoral reform has not been touched upon at all. It may be that the Minimum Wage Act serves to represent the class of industrial reform, but it can scarcely have been within the contemplation of those responsible for the Speech from the Throne. There are, however, Bills which clearly come within this category, such as those dealing with the "Osborne" Judgment, Mental Deficiency, and Inebriety, all of which have had a first reading. Passing from these major political and social measures, we find that the House of Commons has read a first time Bills connected with County Courts, Japanese Marriages, Merchant Shipping Certificates, Railways, Factories, and Workshops, together with Bills affecting the Royal Scottish Museum and the London Institution. The Government of India Bill has been read a second time, the Temperance (Scotland) Bill is before a Standing Committee, and the Light Railways Bill awaits report. In the Lords, the Agricultural Holdings, Bankruptcy, and Ancient Monuments Bills have been read a second time. The Acts that have been passed into law include the Minimum Wage Act (already mentioned), the Shop Acts Consolidation, and those affecting the Army (Annual), Metropolitan Police, and the formal Consolidated Fund Act No. 1.

Clergy as Municipal Councillors.

The Bill on this subject promoted by Lord Robert Cecil, K.C ' and others has been amended in Standing Committee, and is now put down for early consideration. The object of the Bill is to remove an anomaly whereby clergy are qualified to serve as

aldermen or councillors of a London borough council (and several, it may be noted, have been appointed mayors during recent years) and are equally qualified in connection with county councils. Such rights as they possess can be claimed under the Local Government Acts of 1888 and 1894. For some reason or other, Parliament has not hitherto enabled them to stand for election in the case of city councils and as regard certain boroughs. This anomaly deprives those councils of the services of some of the most useful and capable men in the localities concerned at a time when social legislation is such as to demand the presence on these bodies of persons who are specially conversant with such subjects. The Bill to remedy this hiatus in the law is extremely brief, and in five lines only it provides that the Municipal Corporations Act 1882, s. 12 (1) (b), is to be repealed. A person is not henceforth to be disqualified for being elected or for being a councillor of a municipal corporation by reason of being in holy orders or a regular minister of a Dissenting or Nonconformist congregation. The backers of this Bill represent widely diverging schools of political and religious thought, and there appears to be no reason whatever, beyond the exigencies of time, to prevent this Bill becoming law.

Continuation Schools.

THERE is in force in Munich a certain system of continuation schools the results of which have been very encouraging, and it is now proposed by Mr. Chiozza Money's Bill to translate the system into a form suitable for British use. As showing the numerical side of the question, we may note that, according to statistics prepared for the Board of Education by the Continuation Schools Committee of 1907, the percentage of children at school at the age of fourteen is 35.90, and that this percentage drops at the respective ages of fifteen, sixteen, and seventeen to the respective percentages of 23-27, 18.05, and 13·13. Every description of school, except Sunday school, whether day or evening, is taken into account. The short effect of this Bill is to make school attendance compulsory up to fourteen, and from fourteen to seventeen to render it obligatory to attend at day continuation schools except in the case of those who are otherwise being systematically educated. The education authorities are to establish classes for technical training, without fees; the hours are not to be later than 7 p.m., and at least eight hours a week attendance for a minimum of forty-four weeks a year have to be given. Clause 6 calls for sufficient places, teachers' scientific and technical apparatus, materials, tools, plant, &c., in order that every scholar shall be instructed "in industry or agriculture, or in domestic economy, in the English language and literature, in the principles of hygiene, and in the duties and obligations of citizenship." Local employers may be co-opted to the number of six on the local education authority. Employers are subject to a penalty if they put obstacles in the way of due attendance. The costs of this huge scheme are to be paid out of moneys provided by Parliament.

Political Offenders.

A BILL has been introduced to mitigate the results of political offences. It is simple enough in form, whatever opinion may be entertained as to its policy or practicality. The Prison Commissioners are to see to it that prisoners under sentence inflicted on conviction solely for an offence of a political character are to be treated as misdemeanants of the first division, notwithstanding any statute, provision, or rule to the contrary. For the definition of the phrase "offence of a political character the Bill refers to sect. 3 of the Extradition Act 1870. The chief decision to which reference is always made on this section is Re Meunier (71 L. T. Rep. 403; (1894) 2 Q. B. 415), decided by Justices Cave and Collins. The section in question provides that a fugitive criminal is not to be surrendered if his offence is political in character. Here the offender was an anarchist who had attempted to destroy a Government building in France. Justice Cave laid down as a principle that in considering whether an offence is political it is necessary that there should be two distinct parties, each seeking to impose the Government of its choice upon the other, and then offences incidentally committed are to be regarded as so connected with the political contest as to

Mr.

amount to political offences. Meunier was held not to come within the category of political offenders, for his party had no form of government at all, but was the enemy of all Governments, the operations being directed primarily against the general body of the community and only incidentally against the Government. This judgment was approved by Mr. Justice Collins (as he then was) and according to it the plain and simple words involve something a little more complex than at first appears, and probably there are more ingredients in a "political offence" than are within the contemplation of the promoters of the Bill.

Journalists and Juries.

AN attempt is being made by a group of members of the House of Commons to secure exemption from jury service in favour of journalists. The scope of the Bill to give effect to this scheme is defined in a clause so as to cover editors, writers of leading, special, or other articles, correspondents, artists, literary managers, assistant editors, sub-editors or reporters, and those persons who supply journals with articles, illustrations, correspondence, or reports. As affecting all these requirements, there is the further necessity of showing that the journalist must have been for three years professionally, habitually, solely, or chiefly engaged upon the staff of a journal or news agency in the capacities already mentioned. On coming within these requirements, the Bill would exempt the journalist from being returned and from serving on any jury, inquest, or inquiry whatsoever, and his name is not to be inserted in the list of those qualified and liable to serve.

THE "

OSBORNE CASE AND BILL. THE Attorney-General has now produced the Government Bill which is put forward as an attempt to deal with the state of things existing since the House of Lords decided the "Osborne case some two and a half years ago-Amalgamated Society of Railway Servants v. Osborne (101 L. T. Rep. 787; (1910) A. C. 87). It will be seen that the Bill does not by any means surrender all that the extremists on either side have advocated. Whether this compromise will be treated as a statesmanlike solution of an undoubtedly difficult question or as one which both parties will, though from different points of view, treat as unsatisfactory can only be decided when time and opportunity are afforded for a closer examination of what the Bill says and refrains from saying.

What is, then, the more extreme view which the trade unionists urge in their favour? They have strenuously alleged that it was lawful before the Trade Union Act 1871 to apply funds for Parliamentary representation, and they deny that the Act has diminished their pre-existing power. Some rather hazy arguments have been pressed forward also by way of showing that, even if Parliamentary representation could not be validly accepted as one of the "objects" for which trade unions existed, this same representation could be regarded as good as being one of the "methods" of attaining their objects. From this platform it has been argued that trade unions can carry on campaigns, that a hopeful battle field is that of Parliament, that agents can be appointed to act in these matters, and then we reach the position that such agents must be in some way definitely pledged to consider in paramount fashion the interests of their principals. The manner in which this was accomplishable was by signing the ticket of the Labour Party. In a necessarily terse form the above seems to constitute a résumé of the trade unions platform.

The counter arguments are briefly as follows: That trade unions are creatures of statute, and that they must not stir beyond the four corners of their registration and must not exceed the limitations of the amending Act of 1876. Then there are called in aid some general doctrines as to the duties of a member of Parliament to come into discussion without any bias or bargain.

The grounds for the " Osborne" decision in the House of Lords varied to some extent, and the views of the learned judges have to be scanned before, the pros and cons cf the new Bill can be appreciated. The House held, as we all know, that trade

unions could not collect and administer funds for political purposes, and that a rule purporting to authorise this was illegal. Lord Halsbury based his judgment on the limits of the statute, and held that the 4th section of the Act of 1871 with great care protected from interference three applications of a trade union's funds, and that the object of representation in Parliament was not one of them. Lord Macnaghten's judgment also rests on the statute. He points out that trade unions before 1871 had two main objects, being combinations for (a) trade and (b) benevolent purposes. These two distinct purposes were somewhat merged during the disputes antecedent to the legislation of 1871, and benevolent purposes began to occupy a very secondary position. Separation of funds was resisted. It is, parenthetically observed, very interesting to note what Sir Rufus Isaacs is now suggesting on these points.

Lord Macnaghten did not hesitate to draw a distinction between organisations of a political nature and combinations for trade purposes, and he dwelt on the indisputable fact that the statutes nowhere by reasonable implication afforded the powers claimed, nor would he give any countenance to those powers being spelt out as "incidental" or." ancillary" or as "conducive" to the plain programme of trade union activity. This view is fatal to the validity of a rule purporting to confer such a power.

Lord James of Hereford agreed, but viâ a rather different course of reasoning, and his opinion is based on one particular fact. It seemed to turn chiefly, if not entirely, on the provision that "candidates shall sign and accept the conditions of the Labour Party and be subject to their whip.' Lord James thought this such a limitation as would vitiate the application of money on the expenses of the Parliamentary representative. Lord James in several respects was prepared to accept the views of the trade unions on the statutory points, but decided against them on the point already indicated.

Lord Atkinson declined to enter on constitutional considerations, and decided on the statute. He held trade unions to be like other corporations, including limited companies, and to the Legislature there has never been imputed a desire to confer on these a power to devote their funds to the procurement of Parliamentary representation, although their most vital interests were often hindered by taxation or could be benefited by enlargements of their powers. On what principle, then, asks the learned judge, are trade unions to be differentiated in this respect from other corporations, and he holds that he has received to this question no adequate reply. Up till 1903, he further holds, no member of a union was asked to subscribe to any political creed any more than are the shareholders of companies, and, in Lord Atkinson's view, it is unjust and oppressive to pass rules which would subject a trade unionist to a compulsion to promote a policy against which he had leanings under threat of expulsion and the forfeiture of benefits.

Lord Shaw of Dunfermline expressed himself as not clear on the subject of the validity or invalidity of the rules. While not dissenting, he would not decide. It would almost appear, however, as though, like Lord James, he was on the trade union side on the statutory point on the ground, presumably, that trade unions existed long before the statutes, that they were associations in common interests for common ends, that they were recognised rather than created by the Legislature, and were not to be cramped by the language of such recognition in their developments. Lord Shaw would have been prepared to veto proposals introducing matter subversive or foreign to the objects of the unions, but he did not regard the payment of members as within that province. Lord Shaw then bases his judgment on the wider constitutional issue, holding that the candidate's pledge was an unwarrantable interference with the rights of the constituencies; that His Majesty would not be advised freely; that the candidate himself was not free, but subordinate in his opinions to the views of others who controlled his payments; and that a contract of this character would not be recognised in a court of law. In other words, there would be no sense of a trust towards the commonwealth at large.

Now let us turn to the Bill and see to what an extent it runs along the lines of thought already indicated.

The chief section runs in negative form. The funds of a trade union are not to be applied directly or in conjunction with any

other body or otherwise indirectly in the furtherance of certain political objects (but without prejudice to the furtherance of any other political object) except on certain conditions. The political objects hit are set out in a subsequent clause. They include the expenditure of money on (a) direct or indirect expenses incurred by a candidate or prospective candidate for Parliament or for any public office before, during, or after the election in connection with the candidature; (b) the holding of meetings or the distribution of literature; (c) the maintenance of any person holding a public office; (d) the registration of electors or the selection of a candidate for Parliament; (e) on the holding of any sort of political meetings or on the distribution of any political literature unless the main purpose is the furtherance of statutory objects.

A "public office" is a general phrase which would embrace membership of local bodies having power to raise money, directly or indirectly, by means of a rate.

The

As we have seen, funds cannot be applied, except on certain conditions, in furtherance of these political objects. conditions which would get round this general negation will require some careful thought. First, there must be rules, whether the union is or is not registered, to be approved by the Registrar of Friendly Societies, and these rules must provide as follows: (a) That the funds can only be applied in furthering such objects if such furtherance is approved as an object of the union by a resolution passed on a ballot for the purpose by a majority of members voting; (b) that the payments are to be made out of a separate fund, members being under no obligation to pay into this political fund on giving notice of their unwillingness to contribute; and (c) that an unwilling member is not to be excluded from any benefits or be under any disability or at any disadvantage (except as far as goes to the control of the political fund) by reason of his nonpayments, and no contribution to the fund is to be called for as a condition for admission.

The ballot is to be taken in accordance with rules to be made by the union, but the Registrar of Friendly Societies is not to approve them unless he is satisfied that every member has an equal right of voting and "that the secrecy of the ballot is properly secured." Further clauses relate to notices as to unwillingness to contribute to political funds, notifications by unions to their members on the adoption of resolutions furthering political objects that they have a right of exemption and inclosing a form of exemption notice, and for separate levies on nonexempted members for raising political funds.

An examination of this Bill first shows that no attempt is made to deal with the "constitutional questions which loomed so large in the judicial proceedings, and little thought is needed to explain why this should be so. The Bill does largely meet some of the major points which have been raised on the other issues. As is the case with so much other legislation, the effect of it will largely depend on the rules and regulations under which practical administration will be conducted. It is not for us to enter into its political aspects. We have set before our readers the grounds on which the House of Lords in its judicial functions based its decision. It will be interesting to watch the developments as and when the Bill passes through the Commons and the problems of the " Osborne" case come before the Lords in their capacity as legislators.

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BANKRUPTCY LAW AND PRACTICE.

Executors and Adjudication-Petition against Partnership Firm.

PARTNERSHIP in relation to bankruptcy was the subject of two cases that came recently before the courts. In the oneviz., Re Fisher and Sons (noted ante, p. 83)—the question raised was whether the three executors of a testator who continued to carry on his business in the firm name under which the testator had carried it on could be adjudicated bankrupt as "partners.'" By sect. 115 of the Bankruptcy Act 1883 (46 & 47 Vict. c. 52), any two or more persons being partners may be proceeded against in the name of the firm. But by rule 264 of the Bankruptcy Rules, an order of adjudication has to be made against partners individually, not against a firm in the firm name. Mr. Justice Phillimore, before whom the case was heard, was of opinion that the executors there were not in "partnership" within the definition of that word in sect. 1 of the Partnership Act 1890 (53 & 54 Vict. c. 39)—that is to say, "the relation which subsists between persons carrying on a business in common with a view of profit. "That obviously means a profit to themselves personally, and not for the benefit of an estate which they happen to be administering. For, as is said in Lindley on Partnership (5th edit., p. 1), an agreement that something shall be attempted with a view to gain, and that the gain shall be shared by the parties to the agreement, is the grand characteristic of every partnership." The assets of a business, the carrying on of which is being continued by the executors of a testator, would generally form part of his estate. And even though the executors personally might be beneficially interested in that estate, it would only bẹ indirectly that the gain yielded by their trading would be advantageous to them. The principles of partnership were considered and explained in the well-known case of Pooley v. Driver (36 L. T. Rep. 79; 5 Ch. Div. 458), and the remarks there exclude the notion of executors being partners. Joint debtors they undoubtedly may be, and the learned judge so held, but nothing more. other case was that of Re A Debtor; Ex parte The Debtor (No. 3 of 1912) (23rd April 1912). The Divisional Court, consisting of Justices Phillimore and Bray, there decided that a petition in bankruptcy against an individual trading in partnership with another cannot be converted into a petition against the firm. In other words, a receiving order cannot be made against the other partner on the ground that service on any one partner is service on the firm: (Bankruptcy Rules, r. 260). An assignment for the benefit of creditors had been executed by both partners, and that was the act of bankruptcy upon which the petition was founded. But that, in the opinion of the court, did not affect the question. These two decisions emphasise the necessity for the observance of the utmost strictness in bankruptcy procedure. In both of the cases, errors were shown to have been made in such procedure requiring to be set right.

OCCASIONAL NOTES.

The

The Law Courts will reopen for the Trinity Sittings on Tuesday next, when the following nine judges of the King's Bench Division will be in town to assist in the disposal of the London business-viz., the Lord Chief Justice, Mr. Justice Darling, Mr. Justice A. T. Lawrence, Mr. Justice Pickford, Mr. Justice Hamilton, Mr. Justice Scrutton, Mr. Justice Avory, Mr. Justice Bankes, and Mr. Justice Horridge. This number will further be reduced on Thursday, the 6th inst., and Tuesday, the 11st inst., when Mr. Justice Pickford and Mr. Justice Darling will leave London for Exeter and Liverpool respectively, thus leaving only seven judges in London.

Undefended divorce cases will be taken in Courts I. and II. before Sir S. T. Evans and Mr. Justice Bargrave Deane, on Wednesday, Thursday, and Friday next. A Divisional Court will sit on Tuesday next. The special jury divorce list will be taken on Tuesday, the 11th June, and will be continued up to and including Friday, the 5th prox.

An intermediate session for cases arising in the county of Middlesex will commence on Saturday next, at the Caxton Hall, Caxton-street, Westminster, at 10.30.