the confidence of the public in the impartiality of the Bench would be undermined, and that quite unjustifiably. Judges are unable to defend themselves like ordinary citizens from attacks of this description, and, although amenable to fair and just criticism if there should be any departure from strictly judicial behaviour, serious imputations of prejudice and lack of impartiality must be dealt with under the law of contempt, however much such proceedings are to be deplored.

Drunkenness and Motorists

LAST week the question was raised again at the London Sessions as to what constitutes a person "drunk while in charge on any highway or other public place of any mechanically propelled vehicle " within sect. 40 of the Criminal Justice Act 1925. One would have thought that by now this question would have been more or less settled, for in 1924, before the legislation of 1925, Sir Robert Wallace laid it down with reference to the offence of being drunk in charge of a motor car, "It simply means that through drinking he has so destroyed his balance that he could not drive with safety." Again, the Lord Chief Justice, in Rex v. Presdee, although his observations were obiter, suggested that the definition. ought to be "in a condition in which a person is unable to drive a motor car by reason of the quantity of alcohol which he has consumed." This definition, if the words "with safety were added, confirms the ruling of the Chairman of the London Sessions. It will be remembered that about a year ago the subject was considered by a committee appointed by the British Medical Association and they were of opinion that the word "drunk " should mean that the person concerned was "so much under the influence of alcohol as to have lost control of his faculties to such an extent as to render him unable to execute safely the occupation on which he was engaged at the material time." Personally we think that, with the addition we have suggested, the definition given by Lord Hewart is a sound and workable one, that is to say, that the words is drunk" mean "in a condition in which a person is unable to drive a motor car with safety by reason of the quantity of alcohol which he has consumed."

The Fixing of Easter

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THE second place in the ballot for private members' Bills in the House of Commons has been

gained by the measure introduced by Captain Bourne "to regulate the date of Easter Day and days or other periods depending thereon." This very useful and necessary reform has been strenuously sponsored by Lord Desborough for some years past, and in fact there seems to be no objection either internationally or ecclesiastically against the fixing of the date of Easter. At the present time Easter Day can fall upon any day between the 22nd of March and the 25th of April, and the committee of inquiry set up by the League of Nations to consider the reform of the calendar, a committee upon which the Church of England, the Holy See, and the Ecumenical Patriarch were represented, suggested that Easter should be fixed on the Sunday following the second Saturday in April. By an Act of 24 Geo. 2, c. 23, the dates of Easter and of other movable feasts were given statutory authority in conformity

with the decree of the General Council of Nice, and in the new calendar annexed to that statute it was provided "Easter Day (upon which the rest depend) is always the first Sunday after the full moon which happens upon or next after the 21st day of March. And if the full moon happens upon a Sunday, Easter Day is the Sunday after." From the practical point of view no reason whatever exists why the fixing of Easter should be dependent upon the moon, and now that we learn that there is no doctrinal objection to fixing Easter and from the point of view of all communities everything is in its favour, municipal legislation in the various countries should be passed forthwith, and a lead in that direction given by the British Parliament.

The material facts in Wadsworth v. Minister of Health were as follows. The applicant claimed to be entitled to a widow's pension under the Widows', Orphans', and Contributory Old Age Pensions Act 1925. The husband of the applicant, who at all material times was also a member of an approved society, had been compulsorily insured under the National Insurance Act 1911, the first contribution having been paid by or in respect of him on the 15th July 1912, and his last on the 3rd July 1915, between which dates his contributions had been paid in full. After the last-mentioned date the husband, by reason of his remuneration being above the maximum required by the Act, had ceased to be compulsorily insurable, and no insurance had after that date been paid by or in respect of him. On the passing of the Widows', Orphans', and Old Age Contributory Pensions Act 1925 the husband became a voluntary contributor under that Act, his first contribution having been paid on the 4th Jan. 1926, since which date, until the time of his death on the 26th Nov. 1926, his weekly contributions had been regularly paid.

On these facts the main question that arose was whether the widow was entitled to a pension under the Widows', Orphans', and Old Age Contributory Pensions Act 1925. In order to understand the points raised in this case it is necessary to refer to certain of the provisions in the National Health Insurance Acts.

Under the National Health Insurance Acts, contributions may be either compulsory or voluntary (cf., sect. 1 of National Health Insurance Act 1924), and when a person ceases to be a compulsory contributor it is open to him in the circumstances provided for by sect. 1 (3) of the National Health Insurance Act 1924 to become a voluntary contributor. One of the cases in which a compulsory contributor is entitled to become a voluntary contributor, is where he has been employed and insured as an employed contributor for a period, whether continuous or not, of 104 weeks or upwards, and has, on ceasing to be so employed, given notice that he is desirous of becoming a voluntary contributor within a period of twelve months commencing next after the end of the contribution week in which he ceased to be so employed (including the last date of such period), or such later date as the Minister may determine : (Sect. 1 (3) (a) of the National Health Insurance Act 1924; art. 231 (1) of the Approved Societies Regulations 1924; sect. 3 (1) of the National Health Insurance Act 1924).

Under sect. 3 (4) of the National Health Insurance Act 1924: Where a person has ceased to be an insured person, he shall, if he subsequently becomes employed within the meaning of the Act, be treated as if he had not previously been an

insured person." Where, therefore, a compulsory contributor has ceased to be an insured person, as, for example, by ceasing to be engaged in an employment within the Act, and by failing thereafter to become a voluntary contributor, the date of his "entry into insurance," in the event of his subsequently becoming engaged in an employment within the Act, will be, not the original date when he first became insured, but the subsequent date, when he became engaged in an employment within the Act and thereby became compulsorily insurable over again.

The husband, therefore, in Wadsworth's case, had clearly ceased to be an insured person, and the continuity of his insurance had, as it were, become broken, for the purposes of the National Health Insurance Acts, so that, for the purposes of that Act, the original date on which he had become insured, i.e., the 15th July 1912, could not have been regarded as his "entry into insurance."

When the Widows', Orphans', and Old Age Contributory Pensions Act 1925 was passed a departure was made from the principles (referred to above) contained in the National Health Insurance Act 1924, Sect. 13 (1) of the former Act empowering a person who had ceased to be insured under the latter Act to become a voluntary contributor on giving the requisite notice, provided that the following conditions were fulfilled, i.e., provided that (a) he had been continuously insured whether as an employed or as a voluntary contributor for a period of 104 weeks, and (b) 104 contributions had been paid by or in respect of him. It was in pursuance of this provision that the husband of the applicant in Wadsworth's case had become a voluntary contributor.

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In order that a widow may be entitled to a pension under the Contributory Pensions Act 1925, it is necessary to show that 104 weeks have elapsed and 104 contributions have been paid by or in respect of her husband since the date of his " entry into insurance." Although no definition is to be found of entry into insurance" in the National Health Insurance Act 1924 or in the Contributory Pensions Act 1925, the expressions "insured and "insurance for the purposes of the latter Act are defined as having the same meaning as in the former (cf. sect. 2 (1) of the Contributory Pensions Act 1925). It seems impossible, therefore, in the circumstances, to ignore for the purposes of the Contributory Pensions Act 1925, the provisions of sect. 3 (4) of the National Health Insurance Act 1924, to the effect that " where any person has ceased to be an insured person, he shall, if he be treated as if subsequently becomes employed. he had not previously been insured," so that, for the purposes of the Contributory Pensions Act 1925, where a person has ceased to be insured under the National Health Insurance Act 1924, and subsequently becomes a voluntary contributor by virtue of sect. 13 (1) of the Contributory Pensions Act 1925, he is to be treated as if he had not previously been an insured person. The result, therefore, in such a case will be that the date of the " entry into insurance," for the purpose of sect. 5 (a) of the Contributory Pensions Act 1925, will be the date on which he became a voluntary contributor under the Pensions Act 1925, and not the original date on which he became an insured person under the National Health Insurance Act 1924. This is in effect the principal point which the Divisional Court decided in Wadsworth v. Minister of Health.

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It may be of interest also to note that the court was further of opinion in this case that the court of referees had the power to allow either the applicant or the Minister to reply upon any contention, other than those set out in the application for a reference under the Contributory Pensions Act.

THE CONVEYANCER Options to Purchase the Freehold in Leases

THERE are perhaps few provisions in leases which give rise to question more frequently than do options to purchase the freehold. There are two leading cases on the point, which may usefully be referred to, namely, Woodall v. Clifton (93 L. T. Rep. 257; (1905) 2 Ch. 257) and Batchelor v. Murphy (134 L. T. Rep. 161; (1926) A. C. 63). In the former case a lease of land for ninety-nine years, granted in 1867, contained a proviso that in case the lessee his heirs or assigns should at any time during the term be desirous of purchasing the fee simple of the land at the rate of £500 per acre, the lessor, his heirs or assigns, on receipt of the purchase money would

execute a conveyance of the land in favour of the lessee, his heirs and assigns. It was held by Mr. Justice Warrington (as he then was) that the option created an interest in land, and was invalid as infringing the rule against perpetuities. And it was held by the Court of Appeal that the statute 32 Hen. 8, c. 34 (that was, the statute which provided that the assignees of a reversion should have the same remedies against the lessees as the lessors had; and that lessees should have the same remedies against grantees of the reversion as they had against the lessors) did not apply to such a provision so as to make the liability to perform it run with the reversion, and that the option could not be enforced against the assigns of the lessor. In Batchelor v. Murphy the facts were shortly as follows. By a lease dated in Oct. 1913 certain premises were demised to a lessee for a term of ten and a half years. The lease contained an option for the lessee to purchase the premises. On the 17th Nov. 1915 a document was addressed to the sole executor of the lessor, and signed by the original lessee and the defendants in the following terms "In consideration of you agreeing to release me the undersigned H. W. C. and accept us the undersigned A. H. M. and C. L. M. as lessees for the unexpired residue of the term in the lease dated the 17th Oct. 1913 and made between (the parties to that lease) "we respectively agree as follows: The said H. W. C. to surrender the said lease. The said A. H. M. and C. L. M. to execute a new lease for the unexpired term of eight years and six months from the 6th Oct. last on the same terms and conditions in all respects as the lease of the 17th Oct. 1913, with the exception that the rent, which until the cessation of the present hostilities shall be reduced to £82 a year and during the remainder of the term of the rent reserved by the original lease dated the 17th Nov. 1915." The new lease was never executed but the defendants entered into possession of the premises and paid rent. It was held by the House of Lords (affirming the decision of the Court of Appeal) that the word lease in the memorandum meant the document, and not the demise, and that the option of purchase, although not a term of the demise, being included in the original lease, was in substance transferred by the lessee to the respondents, the new lessees.

Undivided Shares-Trusts for Sale

A POINT of Some importance seems to arise with reference to the statutory trust for sale which applies when land is held in undivided shares by not more than four persons of full age entitled beneficially to possession. Such land is to be held by them as joint tenants upon the statutory trusts, that is, upon trust for sale with power to postpone sale at the discretion of the trustees: (sects. 35 and 25 of the Law of Property Act 1925). By sect. 26 (3) (as amended by the Law of Property (Amendment) Act 1926, Schedule), trustees for sale are required, so far as practicable, to consult the persons of full age for the time being beneficially interested in possession in the rents and profits of the land until sale, and are, so far as consistent with the general interest of the trust, to give effect to the wishes of such persons, or in the case of dispute of the majority (according to the value of their combined interests). Apparently sub-sect. (3) only applies to (1) trusts for sale created by or pursuant to power created by statute; and (2) trusts for sale created by dispositions after 1926, showing an intention that the sub-section is to apply: (Wolstenholme and Cherry's Conveyancing Statutes, 11th edit., vol. 2, p. 604). Suppose, then, that two out of the four joint tenants wish the property to be sold, and the other two wish it to be retained, what is to be done? It is true that the trustees have a power to partition under sect. 28 of the Law of Property Act 1925, but apparently that can only be done with the consent of the persons of full age (not being annuitants) interested in possession in the net rents and profits of the land until sale. The same difficulty might arise if the property were vested in two joint tenants beneficially entitled. Presumably the only remedy would be a resort to the court under sect. 30 of the said Act or otherwise.

Personal Representatives Acting as Trustees

IT is provided by sect. 18 (2) of the Trustee Act 1925 that until the appointment of new trustees the personal representatives or representative for the time being of a sole trustee, or where there were two or more trustees of the last surviving or continuing trustee, shall be capable of exercising any power or trust which was capable of being exercised by the sole or last surviving or continuing trustee, or other the trustees or trustee for the time being of the trust. According

to a note in Wolstenholme and Cherry's Conveyancing Statutes, vol. 2, p. 370, that sub-section confirms Re Routledge (99 L. T. Rep. 919; (1909) 1 Ch. 280). There, by a settlement, real estate was in 1874 conveyed to A. and B. in fee upon trust, that they and the survivor of them and the heirs and assigns of such survivor should hold the same upon certain trusts under which C. was the first tenant for life; and by the same settlement it was provided that the power of appointing a new trustee or trustees of the deed in the place of any trustees who should die should be exercisable by the husband and wife by deed during their joint lives, and by the survivor of them during his or her life. B. survived A., and died in 1905, and the executors of B.'s will acted as trustees of the settlement. In 1908 the husband and wife, in exercise of the said power, appointed two persons to be new trustees of the settlement in the place of A. and B. It was decided by Mr. Justice Neville, that although the executors were trustees of the settlement until new trustees were appointed, the deed was a valid exercise of the power to appoint new trustees, and operated forthwith to oust the executors for all purposes from the trust. Presumably that decision was based on the fact that the power to appoint new trustees was not intended to apply to the case of the death of the representatives of the surviving named trustee. But supposing that, as often occurs, the settlement had defined the word " trustees as including the survivor of them and the representatives of the survivor or other the trustees or trustee for the time being, it is difficult to see why the representatives of the surviving named trustee, who are in fact trustees of the settlement, should be ousted against their will by the appointment of new trustees under the power. In cases of the kind the present writer has always felt some doubt as to the proper way of framing the appointment, that is to say, whether it should be made in the place of the surviving named trustee or in the place of his personal representative. It may, perhaps, in some cases, be permissible to make the appointment in the place of the surviving named trustee, and (if necessary) in the place of his personal representative.

The Habendum-Restrictive and other Covenants

IN these days it is frequently necessary to refer in the habendum of a conveyance of land to a purchaser to various covenants, stipulations, and matters affecting the property conveyed. Questions sometimes arise as to what matters ought to be so referred to. It does not follow because a covenant affects the property or the title that it ought to be referred to in the habendum. Thus in Hardman v. Childs (52 L. T. Rep. 465; 28 Ch. Div. 712), property was subject to a liability to repair and keep in repair a wall, but no mention of it was made in the particulars or conditions of sale, and the purchaser did not know of it until the delivery of the abstract. The purchaser, in his draft conveyance, omitted all reference to the obligation to repair the wall. The vendor's solicitors added the words "subject to and with the liability for ever to repair the wall." It was held by Mr. Justice Pearson that if the obligation to repair the wall ran with the land, it was immaterial whether it was mentioned in the conveyance or not because the purchaser would be bound by it in either case; but that if it did not run with the land, the vendor's not having mentioned it in the particulars of sale could not impose it on the purchaser: (See the observations of Lord Justice Cotton on that case in Re Glenton and Saunders to Haden (53 L. T. Rep. 434). In Re Wallis and Barnard's Contract (81 L. T. Rep. 382; (1899) 2 Ch. 515), it was decided by Mr. Justice Kekewich that a purchaser is entitled to a conveyance subject only to the restrictive covenants mentioned in the contract, although he has notice of others. Akin to this subject is the question whether a vendor is entitled to have inserted in the conveyance to the purchaser a covenant to fulfil an obligation referred to in the particulars and conditions of sale, but without any stipulation that it should be embodied in a covenant. Thus in Re Cooper and Crundace's Contract (90 L. T. Rep. 258), where a purchaser bought under a contract which made him liable to erect and for ever after maintain fences, as marked on the plan of property sold by public auction, it was decided by Mr. Justice Kekewich that the vendor was entitled to have a covenant by the purchaser regarding the fencing inserted in the conveyance. No doubt as a rule the conditions of sale, or the contract, expressly stipulate that the purchaser shall enter into a covenant in cases of the kind. Where property is sold subject to numerous and various stipulations and matters it is generally convenient to insert them in a schedule to the conveyance.

Second Sheet

International Law-Foreign Domicile-Assets and Creditors in England and America

OCCASIONALLY questions of international law arise for consideration in conveyancing matters, particularly in the administration of estates of deceased persons. The learned editor (Professor A. D. Keith) of the fourth edition of Dicey's Conflict of Laws calls attention to the very remarkable extension of jurisdiction, in an unassuming form, marked by the judgment of the Court of Appeal (affirming the decision of Mr. Justice Eve) in the case of Re Lorillard; Griffiths v. Culworth (127 L. T. Rep. 613; (1922) 2 Ch. 638). There a testator domiciled in New York died in England, leaving assets and creditors both in England and America. Administration proceedings were taken in both countries. In the English administration, after payment of all creditors there was a surplus available for beneficiaries. In the American proceedings the assets were exhausted, leaving unpaid certain creditors whose debts were statute barred by the law of England, but not by the law of New York. The English court gave the American creditors a limited time to come in and prove their debts, which, however, they did not do. Upon a claim by the American administrator to have the surplus English assets transferred to him for distribution among the American creditors, it was held that the English court, having exercised its discretion, was not bound to order the surplus assets to be transferred to America. That decision seems to conflict with the dictum of Lord Westbury, C. in Enobin v. Wylie (10 H. L. Cas. 13), where he said: The court of the domicile is the forum concursus to which the legatees under the will of a testator, or the parties entitled to the distribution of the estate of an intestate, are required to resort." As observed by the learned editor of Dicey (p. vii.), the decision in the Lorillard case is incompatible with the more general view that the administrator in the domicile is the proper person to distribute, or at least that the ancillary administrator ought to distribute in the same manner, and would be followed by the principal administrator, but it does not actually conflict with any earlier decision of the English courts. The same learned editor also observes that the discretion exercised in the case of Re Lorillard was doubtless largely motived by the fact that the beneficiaries were in England, and that it seemed inequitable to allow their expectations to be defeated by the admission against the estate in the country of domicile of debts that were time barred under English law. In connection with this subject reference may be made to the case of Re De Nicol (82 L. T. Rep. 840; (1900) 2 Ch. 410), in which it was decided by Mr. Justice Kekewich that the title to land in England may be affected by the marriage of the owner when domiciled abroad: (see Williams on Vendor and Purchaser, 3rd edit., vol. 2, p. 913; and the comments on that case in Dicey, 4th edit., p. 567).

Infant Joint Tenants-The Transitional Provisions

THE transitional provisions of the Settled Land Act 1925 and of the Law of Property Act 1925 contain an elaborate scheme for vesting the legal estate in land, which at the commencement of the Acts was vested in an infant, in trustees for him. The position, however, of land which was then held by two persons jointly, both of whom were infants, has been left a little uncertain. Whether such joint tenants were then entitled in fee simple or as tenants for life par. 3 of Sched. II. of the Settled Land Act 1925 governs the case. If there were trustees of the land the legal estate vested in such trustees upon such trusts as might be requisite for giving effect to the rights of the infants. The difficulty arises where there were no such trustees. In this case the legal estate in the land vested in the Public Trustee, who, however, is not entitled to act until he is requested in writing so to do on behalf of the infant. The paragraph goes on to provide (sect. 1 (iv.) that if there is no other person able and willing to appoint trustees the parents or parent or testamentary or other guardian of the infant, if respectively able and willing to act, shall have power to appoint by deed trustees of the settlement in the place of the Public Trustee and to vest the settled land in them. Sect. 1 (v.)-the section which causes the trouble-continues as follows: "If land to which an infant is beneficially entitled in possession for an estate in fee simple or for a term of years absolute vests in the Public Trustee, but the Public Trustee does not become the trustee of the settlement, and trustees of the settlement are not appointed in his place, then, if and when the infant

attains the age of twenty-one years, the land shall vest in him." Sect. 5 goes on to provide that the paragraph is to apply to two or more infants entitled jointly. This being so, the question arises as to the effect of sect. 1 (v.) where infants are jointly entitled and one comes of age. Does the sub-section operate to vest the legal estate in the infant who has attained his majority, or does it only operate to transfer the legal estate from the Public Trustee when all the infants have come of age? It seems impossible to answer this question with certainty. The infant who attains his majority would appear to have a kind of right to have the legal estate vested in him, as where an adult and an infant are jointly entitled the legal estate habitually vests in the adult (see sect. 19 (2) of the Law of Property Act 1925); but the words of sect. 1 (v.) do not appear to justify a construction which would in these circumstances divest the Public Trustee. To make the sub-section do this it is necessary to read "infant " in the plural at its commencement, and in the singular at its end a reading of the Act which does not appear strictly justified, and one on which, in the absence of any judicial decision, no purchaser could rely with safety. However, once an infant has attained twenty-one the persons on whom a power to appoint trustees in the place of the Public Trustee is conferred appear to have lost their powers. Consequently, if it is desired to sell the property, the only safe course is for an application to be made to the Public Trustee, when he can concur with the infant and vest the land in trustees for sale. This way of clearing up the title is perhaps less costly than an application to the court for a ruling as to the whereabouts of the legal estate, but it is not economical. It appears, therefore, that parents or guardians who have infants where property has vested in the Public Trustee, should exercise their powers and appoint trustees in the place of the Public Trustee, and so get the legal estate into such appointees. If this is done while all the infant joint tenants are under age, when one attains twenty-one, the legal estate will remain in the trustees so appointed, and they will retain it until they convey it and there can be no question as to its position. If such an appointment is not made before one infant joint tenant comes of age, title cannot be made to the property without expense until all are of age, when sect. 1 (v.) will probably operate to vest the legal estate in all the joint tenants; but even this is not clear, as the alternative reading may possibly be correct, when the legal estate would have vested in the first to attain majority. The position of infant joint tenants is thus extremely uncertain, and persons who are responsible for the proper management of the infants' property should take steps to clear up the title before the infants, by reaching maturity, bring the difficulties inherent in the position to such a state that they cannot be solved except by the intervention of the court or of the Public Trustee, a step which must involve

expense.

NOTES OF NEW DECISIONS By Our Reporters in the Several Courts

HOUSE OF LORDS

Income tax-Excess profits duty-Profits of trade-Syndicate formed to acquire and develop patent rights-Licence granted to foreign company for cash payment and royalties-Option of purchase of patents-Exercise of option of purchase by foreign company for lump sum Assessment of purchase money to income tax-Realisation of capital asset-Not a trading profit -Finding of commissioners appealable—Income Tax Act 1918 (8 & 9 Geo. 5, c. 40), Sched. D, case 1.

Appeal from a decision of the Court of Appeal (Lord Hanworth, M.R. and Sargant, L.J.; Scrutton, L.J. dissenting) (reported 138 L. T. Rep. 143). The R. R. Syndicate was formed in 1906 to acquire a group of English and foreign patents relating to the construction of centrifugal turbine and other pumps, to manufacture goods made under them, and to sell, dispose of, turn to account and grant rights and privileges in respect of the property and rights of the company. The company desired, as far as possible, to exploit the patents by granting licences for manufacture in consideration of royalties, but certain foreign manufacturers refused to take such licences, unless they were also given an option of purchase. The company granted to the M. Company an exclusive licence for the United States and Canada in consideration of a cash payment of £10,000, and royalties at ten per cent. on the selling price,

with an option exercisable within fixed dates to purchase the American and Canadian patents for a lump sum. The M. Company in 1917 exercised their option, and purchased the American patents for £15,898. The syndicate was assessed to income tax and excess profits duty on this sum. The commissioners, on appeal, decided that this profit on the sale of patents arose in the course of the syndicate's business, and was, therefore, properly chargeable to taxation. The Court of Appeal held (Scrutton, L.J. dissenting) reversing the decision of Rowlatt, J., that the Special Commissioners had misdirected themselves in a matter of law, and their decision was therefore appealable. The sale of the American patent was not a trading profit, but a realisation of a capital asset and its transmutation into money. The syndicate did not trade in the sale of patents, and never originated offers to sell their patents. The appeal must therefore be allowed and the assessment discharged (Collins v. Firth-Brearley Stainless Steel Syndicate, 133 L. T. Rep. 616, followed). Per Scrutton, L.J. dissenting: It was impossible to reconcile the various statements of the authorities on the exact line to be drawn between fact, which was not appealable, and law, which was appealable. In his opinion there was evidence upon which the Special Commissioners could properly find that the sum in question was a trading profit of the syndicate and that was a finding of fact from which there could be no appeal. The commissioners appealed.

Held, that it was impossible to say that the commissioners had wrongly directed themselves or that there was not ample evidence to support their finding. Appeal allowed.

[Commissioners of Inland Revenue v. Rees Roturbo Development Syndicate Limited; Ducker v. Same. H. of L.: Lords Buckmaster, Sumner, Wrenbury, Carson, and Warrington. Feb. 14.-Counsel for the appellants, Sir Douglas Hogg, K.C. (A.-G.), Sir Thomas Inskip, K.C. (S.-G.) and R. P. Hills; for the respondents, Latter, K.C., J. Stamp, and J. H. Bowe. Solicitors for the appellants, Solicitor of Inland Revenue; for the respondents, Sharpe, Pritchard, and Co., agents for Underhill, Neve, Taylor, and Co., Wolverhampton.]

COURT OF APPEAL Contract-Sale of goods-Cargo of grain-Conditions-Construction-Notice of appropriation-To be " given to buyer within seven days-Date of bill of lading-Notice dispatched by sellers within seven days-Whether sufficient compliance with condition-Validity.

On the 26th Nov. 1926 the agents of the Russian Soviet Republic at Hamburg (hereinafter called the sellers) sold to buyers at Rotterdam 6000 tons of South Russian wheat. The contract of sale was in the form of the London Corn Trade Association, Black Sea and Danubian Grain contract, and was subject to a number of conditions printed on the back. One of the conditions provided that notice of appropriation with ship's name and date of bill of lading should be given by the shippers of the grain tendered under the contract to the buyers within seven days from the date of the bill of lading and a provisional invoice based on the bill of lading weight with ship's name and date of bill of lading must be sent by shippers' house or representative in London to the buyers within three business days after arrival of documents in London. The sellers shipped the grain under the above contract on a steamer at N., and the bill of lading was dated the 30th Dec. 1926, and it was agreed that the seven days after the date of the bill of lading included the 6th Jan. 1927. On the 4th Jan. 1927, the sellers telegraphed to the buyers, tendering a cargo of wheat under the contract of the 26th Nov., and giving the name of the ship at G. for order. This telegram was confirmed by letter. On the 6th Jan. the buyers wrote refusing to accept that as notice of appropriation, because it did not give the date of the bill of lading. On the same day, the 6th Jan., the sellers posted to the buyers a provisional invoice, which gave, inter alia, the date of the bill of lading. This was received by the buyers on the 7th Jan. The buyers returned it on the ground that no tender had been made in conformity with the condition in the contract. The dispute was referred to arbitration.

Held, by the Court of Appeal, affirming the decision of Wright, J., on a case stated, that on the proper construction of the words of the condition, the notice of appropriation must reach the buyers within the time specified, namely, within seven days from the date of the bill of lading,

and in this case no valid notice of appropriation had been given by the sellers to the buyers within the time required by the condition.

[Compagnie Continentale D'importation v. Handelsvertretung Der Union Der Socialistischen Sorvjet Republiken in Deutschland. Ct. of App.: Scrutton and Sankey, L.JJ., and Astbury, J. Feb. 10.-Counsel: Somervell; Le Quesne, K.C., and Lilley. Solicitors: Coward, Chance, and Co.; Thomas Cooper and Co.]

Insurance-Life

policy-Assignment—Extension-Death of assured during extended period-Title to policy moneys— Assignee entitled to benefit of extension.

Appeal from a decision of Tomlin, J. The action was brought by the plaintiffs as personal representatives of S. B. against the defendant, as assignee of a life policy taken out by S. B., for a declaration that on the death of S. B. they were entitled to the policy moneys. In Aug. 1925 S. B. insured his own life for £1000 in the Sun Insurance Company for the year ending the 31st July 1926, and shortly afterwards assigned the policy to the defendant absolutely. The policy was world-wide and free from restrictions as to foreign travel and occupation. In June 1926 S. B. was in California, and his solicitors cabled out to him, asking wether they should negotiate a renewal of the policy for a period. The policy was extended for the three months ending the 31st Oct. 1926, and was duly endorsed by the insurance company with a memorandum to that effect, and a receipt given for the extra premium. S. B. died on the 1st Oct. 1926. The executors of S. B. and the defendant both claimed the policy moneys payable. Tomlin, J. decided that the defendant was entitled to them and dismissed the action. The plaintiffs appealed.

Held, that the appeal failed and must be dismissed. It was impossible to hold that the insurance for the extended period constituted a new and separate contract. The former contract was renewed for an extra period. There was no new policy issued and no fresh stamp was required. The subject-matter of the risk was not changed : (Kensington v. Inglis, 8 East, 273) The deceased could enlarge or extend the policy with the consent of the society, and the enlargement or improvement enured to the benefit of the defendant. It was unnecessary to consider the ground on which Tomlin, J. had given his decision, viz., that the deceased had contracted as a trustee for the defendant.

[Royal Exchange Assurance v. Hope. Ct. of App.: Lord Hanworth, M.R., Sargant and Lawrence, L.JJ Dec. 9, 1927.-Counsel : S. L. Porter, K.C. and Macgillivray ; Archer, K.C. and H. Johnson. Solicitors: Parker, Garrett, and Co.; Stilgoes and Co.]

CHANCERY DIVISION

Will-Bequest-Great Eastern Railway Stock-Amalgamation of this railway with others-Allotment of substituted stockSubsequent purchase of further new stock-Effect of bequestRailways Act 1921 (11 & 12 Geo. 5, c. 55), s. 3.

The testator in this case, by his will made on the 9th March 1922, bequeathed to P. B. all his stocks and shares of whatsoever kind in the Great Eastern Railway. In Jan. 1923 the amalgamation scheme under the Railways Act 1921 took effect, whereby the £3000 ordinary stock which he then held in that railway was converted into £1050 Preferred and £1350 Deferred ordinary stock in the London and North-Eastern Railway which was constituted by that amalgamation. He then purchased £3800 additional Deferred stock, and by a codicil made on the 12th May 1926, after making a bequest not material, in all other respects confirmed his will. He died on the 5th Dec. 1926. Clause

16 of the amalgamation scheme said that the substituted stock was to be held on the same trusts, &c., and other legal and equitable privileges as affected the stock for which it was substituted, and that any reference in any will or codicil to the stock of the amalgamated companies should be deemed a reference to the substituted stock. On a summons taken out by the trustee asking whether the whole or what part of the substituted stock passed by the bequest,

Held, that the testator, by making the codicil which confirmed his will, had brought his testamentary dispositions down to the date of the codicil. The true construction of the bequest, therefore, in the circumstances was that it was a falsa demonstratio and was a bequest of the converted

stock. P. B. was not, therefore, entitled to the £3800 Deferred stock of the London and North-Eastern which the testator had subsequently purchased. That amount of Deferred stock therefore fell into residue.

[Re Anderson; Public Trustee v. Bielby. Ch. Div. : Russell, J. Feb. 9.-Counsel: Hodge; Greenland; Hunt. Solicitors Hillearys.]

KING'S BENCH DIVISION

Master and servant-Contract of employment Commercial traveller-Previous convictions for motoring offences not disclosed-Whether concealment of material fact—Claim for damages for wrongful dismissal.

The plaintiff was a commercial traveller in the South of England. The defendants were perambulator and toy manufacturers of Leeds. By an agreement dated the 1st Dec. 1926 the defendants agreed to employ the plaintiff as their representative for seven months and if orders proved satisfactory they promised to pay commission at 21 per cent. on all sales effected by the plaintiff for three years from the 1st Dec. 1926. The defendants supplied the plaintiff with a motor-car. On the 6th Jan. 1927 the plaintiff while driving this car collided with another car. He was convicted of a motoring offence and previous convictions having been proved, his driving licence was suspended for three months. The defendants immediately dismissed the plaintiff, who brought the present action claiming damages for breach of contract and for wrongful dismissal. The defendants pleaded that they were justified in dismissing the plaintiff because at the time the contract was entered into he had not mentioned his previous convictions for motoring offences which they alleged was a concealment of material facts.

Held, that in the present case there was no such obligation as existed in contracts of insurance to state all the material facts. The authority on the subject was Fletcher v. Krell (1873, 28 L. T. Rep., p. 105). Moreover, looking at the contract itself there was no obligation on the part of the plaintiff to drive the car himself and it had not been shown that the plaintiff had put it out of his power to perform his duties. There must, therefore, be judgment for the plaintiff for damages.

[Hands v. Simpson, Fawcett, and Co. Limited. K. B. Div. Finlay, J. Feb. 6, 7 and 8.-Counsel: for the plaintiff, Sir Walter Schwabe, K.C. and Eric Sachs; for the defendants, J. A. Greene, K.C. and Wynn Werninck. Solicitors for the plaintiff, H. Burford Judge; for the defendants, McIntyre, Emsley, and Co., for Emsley and Son, Leeds.]

Master and servant-Motor-car-Accident-Servant driving car borrowed from master-Liability.

The plaintiff, B., was a painter employed by the Southern Railway Company. On the night of the 23rd Dec. 1926 he was painting the underside of a bridge at Lewisham. He was standing on a trestle resting on the road and properly guarded by barriers with red lamps. A car owned by the first defendant, but driven by the second defendant, collided with the trestle and the plaintiff suffered injury. The first defendant, G., was a contractor who owned a number of vans and employed a number of drivers, of whom the second defendant, N., was one. N. was not only a servant, but a friend of G., and on the night in question G. had lent him his private motor-car to take a party to the theatre. G. had lent this car to N. on a previous occasion. It was while N. was driving his friends home that the accident happened. In an action brought by the plaintiff against G. and N., claiming damages, the jury found that N. had been negligent and assessed the damages at £300. The question whether G. was also liable was further considered. It was argued that N. was in the employment of G. as a driver of motor-cars, and that G.'s liability was not affected because, though on the occasion in question he was driving for his own benefit, he was doing so with G.'s authority.

Held, on the authority of Lloyd v. Grace Smith and Co. (107 L. T. Rep. 531 ; (1912) A. C. 716), that there must be judgment for the defendant G. The defendant N., though a driver of G.'s vans, was driving the car on his own business and not that of his master. The master was a stranger so far as this journey was concerned, and to make him liable it had to be shown that the servant was employed to do that class of acts in which the tort was committed. When his