The question therefore arose whether the plaintiffs were entitled to any costs by virtue of the above-mentioned section -sect. 17 (2) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, and whether therefore the plaintiffs' claim was to be regarded as a claim or other proceeding arising out of the Act. As the counterclaim, on the other hand, was for a renewal of the lease, that claim clearly did not come within sect. 17 (2), and the right to be awarded costs on the counterclaim was not contested by the defendants.

Russoff v. Lipovitch (132 L. T. Rep. 789; (1925) 1 K. B. 628) may be regarded as the leading case on the point under consideration. In that case the landlord's claim was against a statutory tenant for possession and also for arrears of rent, which included certain increases which the landlord alleged he was entitled to make by reason of the privileges in that respect conferred on him by the Act.

It was held that the action was in respect of a claim or proceeding arising out of the Act within the meaning of sect. 17 (2). The wide scope of the section becomes apparent from a consideration of the judgment of Lord Justice Bankes. Thus, the learned Lord Justice said: "On looking into the statute I think it will be found that the Legislature is treating any action by a landlord to recover premises to which the Act applies as a proceeding arising out of the Act, although it is quite true that, strictly speaking, the right of recovery is independent of the statute, the landlord being entitled to bring an action of ejectment at common law. If he attempts to enforce his common-law right to recover possession, and the house is one to which the Act applies, the onus lies on him to show that the case falls within one or other of the exceptions . . . specified in [sect. 4 "5" of the Rent and Mortgage Interest Restrictions Act 1923], and he must also satisfy the court that it is under the circumstances reasonable to make the order. . . . If the landlord is seeking to turn out the tenant on grounds which are to be found only in the statute, it seems to me impossible to say that the action, although in a sense it is a common-law action, is not under the circumstances, a claim or other proceeding arising out of the Act' within the meaning of sect. 17 (2)."

6

It is of interest also to refer to the judgment of Lord Justice Scrutton to see how that learned Lord Justice dealt with the argument that the claim was one arising out of the common law and not out of the Rent Restrictions Acts. "That contention," said Lord Justice Scrutton (132 L. T. Rep. 789; (1925) 1 K. B., at p. 637), “is to my mind, not merely very technical but also inaccurate. There was a common law existing at the time of Lord Coke, but in many respects it has been materially altered by later statutes, so that many forms of relief can be obtained at the present day which could not have been asked for under the common law in Lord Coke's time. It is not, in my opinion, accurate to say that the claim in the present case arises out of the common law. It arises out of the common law as modified by subsequent statutes. The original common-law right to possession has been modified by the Rent Restrictions Act in the case of houses to which the Act applies, and a claim for the possession of such a house cannot any longer be made under the common law, for the common law has gone."

Whether it can be said that sect. 17 (2) will equally apply to an action of ejectment brought against a trespasser who has wrongfully occupied premises within the Rent Restriction Acts is a moot point. It would seem, however, that such an action would not be within sect. 17 (2), since the Rent Acts do not apply to a trespasser, who accordingly would not be entitled to the protection against eviction which the Acts afford (cf. Remon v. City of London Real Property Company (123 L. T. Rep. 617; (1921) 1 K. B. 49); so that the landlord need in such a case rely solely on his commonlaw right of being entitled to possession against a trespasser.

It is on this ground, apparently, that the decision of Mr. Justice McCardie in Gunter v. Davis (132 L. T. Rep. 538; (1925) 1 K. B. 124) may be based, in which case the defendant was a trespasser, having, as the, learned judge found, never had a tenancy of, and no right or title to, the possession of the premises.

Thus Mr. Justice McCardie said: “In my view the action of ejectment in the present case was not brought by virtue of the provisions of the Act of 1920. It does happen accidentally that the premises fall within the rental fixed by sect. 12 (2) (a) of the Act, but apart from that circumstance the Act has nothing to do with the case. Now here the landlord brought his action against a trespasser, his action was

an ordinary action of ejectment, and the writ was endorsed in the ordinary way. That being so, the defendant is unable to destroy the plaintiff's primâ facie right to costs." The learned judge further distinguished the case of Gill v. Luck (130 L. T. Rep. 331) on the ground that a clear distinction was to be drawn between a case (as in Gill v. Luck) where the relation of landlord and tenant had once subsisted between the parties, and a case (as in Gunter v. Davis) where there never had been any such relation.

În Gill v. Luck the point as to costs was only incidentally raised, the real question in that case being whether proceedings under Order XIV. might be taken where it was desired to recover possession of premises within the Rent Acts. The Court of Appeal held that procedure was not appropriate.

Reference may also be made to Woolf v. Smith (130 L. T. Rep. 154; (1923) 2 Ch. 393). In that case the tenant of premises within the Acts brought an action in the Chancery Division of the High Court, claiming an injunction to restrain his landlord from interfering with his quiet enjoyment of the premises, and an inquiry as to damages occasioned through the defendant having forcibly taken possession of the premises for a short period while the plaintiff was away on holiday. The court came to the conclusion that a notice to quit which the plaintiff was alleged to have given to the defendant was improper, that the tenancy had not, therefore, been terminated, and that accordingly the entry by the defendant was improper. It appeared, however, that a year before the action the defendant had given the plaintiff notice to quit, which had expired in the meantime, so that the plaintiff was at the time of the action a statutory tenant. Mr. Justice Eve held that the action was a proceeding under sect. 17 (2) on the ground that as between the plaintiff and the defendant it was necessary for the plaintiff (the tenant) to prove a right to possession, and this he could only do by showing that he was a statutory tenant by virtue of the Act.

Even, however, if the plaintiff in Woolf v. Smith had been a contractual and not a statutory tenant, it is submitted that sect. 17 (2) would equally have applied, since the provisions in the Rent Restrictions Act protecting a tenant from eviction apply to contractual as well as to statutory

tenants.

Indeed, if the action must ultimately turn on a question of possession, and the premises happen to be within the Rent Acts, the action whatever its nature would seem to fall within sect. 17 (2); and thus an action for damage for trespass and damage to chattels brought by a person (not a trespasser) who has been ejected by the landlord from premises of which he has been in possession, would equally fall within sect. 17 (2).

It seems clear, therefore, that sect. 17 (2) will be construed liberally and its wide scope will further be appreciated if one notes that even a claim for damages for breach of covenant to repair premises, which were within the Rent Acts, has been held to be a claim or proceeding arising under the Act, within the meaning of sect. 17 (2), in Lee v. Roberts (60 L. J. 574).

Bearing these cases in mind, it would appear that the decision of Mr. Justice MacKinnon in Branch v. Bennett Dairies Limited is correct, notwithstanding that the question directly involved there, i.e., whether the tenant was entitled to a renewal, was outside the provisions of the Rent Restrictions Acts.

In conclusion, it may be as well to refer briefly to the view of sect. 17 (2) taken by the Irish and Scottish courts. These courts, it seems, are not prepared to give the same extended meaning to sect. 17 (2) as the English courts have done.

Thus it has been held in Ireland that an action for possession is not a claim or proceeding arising out of the Act : (Hodgens v. Furry, 1925, 2 I. R. 69).

In Scotland proceedings under the Rent Restrictions Acts are regulated by the Act of Sederunt, of the 2nd Dec. 1920, which by sect. 2 provides that applications under those Acts shall proceed as summary causes in the Sheriff Courts, and it has been held in Purves v. Graham (1924) S. C. 477), that an action for possession is not an application under the Rent Act within the meaning of the Act of Sederunt, and that neither the Act of Sederunt nor sect. 4 of the Rent and Mortgage Interest Restrictions Act 1923 restricted, either expressly or by implication, the form of the action by which a landlord may in such cases vindicate his right to possession.

THE CONVEYANCER

When is Land Settled Land?

REFERRING to an article on this subject which appeared in this journal for the 21st Jan. 1928, p. 51, the cases there referred to, particularly Re Ryder and Steadman's Contract (137 L. T. Rep. 281; (1927) 2 Ch. 62, C. A.) are confirmed by the recent decision of Mr. Justice Russell in Re Catchpool ; Harris v. Catchpool (ante, p. 283; (1928) 1 Ch. 429). It will be remembered that one of the transitional provisions of the First Schedule to the Law of Property Act 1925 is, that where immediately before the commencement of that Act land is held at law or in equity in undivided shares vested in possession (Part IV., par. 1), and if the entirety of the land is settled land held under one and the same settlement, it is to vest in the trustees (if any) of the settlement, as joint tenants upon the statutory trusts (sub-par. (3), provided that if there are no such trustees then, pending their appointment, the land is to vest in the Public Trustee upon the statutory trusts. By sect. 30, sub-sect. 3, of the Settled Land Act 1925, where a settlement is created by will, and apart from that sub-section there would be no trustees for the purposes of the Act of such settlement, then the personal representatives of the deceased are, until other trustees are appointed, to be the trustees of the settlement; but where there is a sole personal representative, not being a trust corporation, it is obligatory upon him to appoint an additional trustee to act with him for the purposes of the Act. In the Catchpool case real estate was settled by the will of a testator who died in 1877, and the defendant, F. E. Catchpool, was sole personal representative of the said will, and as such might have been trustee of the settlement under sect. 30, sub-sect. 3, of the Settled Land Act 1925, if applicable. But if she was not such trustee, then the property, pending the appointment of trustees of the settlement, vested in the Public Trustee under proviso (i.), sub-par. 3, of Part IV. of the First Schedule to that Act. It was decided (following the judgment of the Court of Appeal, particularly that of Lord Justice Sargant, in Ryder and Steadman's Contract) that the trustees of the settlement were to be ascertained under the old law, as it existed before the Settled Land Act 1925, and there being no such trustee, and the land being held under one and the same settlement, it vested in the Public Trustee, until other trustees were appointed. The learned judge accordingly appointed certain persons named in the summons to be trustees of the settlement.

Income Tax-Saving of

PRACTITIONERS are probably more or less familiar with sect. 20 of the Finance Act 1922 (12 & 13 Geo. 5, c. 17), the object of which was to prevent a person escaping the payment of income tax and super-tax, by making over his income, or part of it, to a child or some other person. That section rendered liable to income tax income receivable under revocable and certain other dispositions including income which by virtue of any disposition made by any person after the 1st May 1922-other than a disposition made for valuable and sufficient consideration-is applicable for the benefit of any other person for a period which cannot exceed six years, or which by virtue of any disposition made by any person after the 5th April 1914 is applicable for the benefit of a child of that person for some period less than the life of the child. But the aforesaid provisions are not to apply as regards any income derived from capital which, at the end of the period during which that income is applicable for the benefit of the child, is required by the disposition to be held in trust absolutely for the child; or any income which is applicable for the benefit of a child during the whole period of the life of the person by whom the disposition is made. The section is somewhat involved, and not easy to construe, but one small point occurs to the present writer, namely, that in order that the income may be exempt from the tax under the proviso it must either be derived from capital which is eventually settled on the child, or must be income applicable for the benefit of the child during the whole period of the life of the settlor, so that a disposition of income for the benefit of the child during the joint lives of the settlor and the child would seem not to be exempt, as that is not necessarily during the whole life of the settlor.

Escrows

EVERY practitioner knows that if an instrument be declared to take effect on the happening of a particular event, or is not to operate until some condition is

performed pending the happening of the event, or the performance of the condition, the instrument is called an escrow : (Norton on Deeds, p. 15). Parol evidence is, of course, admissible as to what were the circumstances attending the delivery, but if the evidence is in writing the construction of that evidence is for the judge: (Furness v. Meek, 27 L. J. Ex. 34). That case was followed in Pattle v. Hornibrook (75 L. T. Rep. 475; (1897) 1 Ch. 25). There the plaintiff, a spinster, having signed an agreement for the lease of a house to her by the defendant, the latter subsequently signed it, and handed it to his solicitor, with instructions not to part with it except on the condition that the plaintiff obtained some responsible person to join in the lease-a condition which the plaintiff declined to fulfil. It was held by Mr. Justice Stirling that evidence was admissible to show that no agreement was come to between the parties, and that the true effect of the transaction was that the defendant declined to enter into an agreement on the terms of the written document, but at the same time made a counter offer which was refused, and that there was no agreement. The foregoing cases also show that though a written agreement cannot be varied by parol, evidence of that kind may be resorted to to show that there was no agreement at all. It is suggested that when a deed is executed as an escrow it is advisable to preserve some written evidence of the fact by letter or memorandum specifying the condition upon which the escrow is to become a deed.

Strict Settlements before and after the 1st Jan. 1926

IT is advisable to bear in mind that in the case of strict settlements existing on the 1st Jan. 1926 the then existing document creating the settlement is the trust instrument (Settled Land Act 1925, Sched. II., par. 1), and that a will coming into operation after that date is a trust instrument (sect. 6 of the said Act). So that in those cases the trust instrument precedes the vesting instrument. But in strict settlements by deed executed after the 31st Dec. 1925 the vesting deed would be of even date with, or would precede, the trust instrument—the latter containing all the trusts of the settlement. In the case of settlements existing on the 1st Jan. 1926 a vesting instrument is not absolutely necessary to create them, but until a vesting deed has been executed the tenant for life cannot exercise any of his statutory powers, except in favour of a purchaser of a legal estate without notice (sect. 13 of the Settled Land Act 1925).

A Mortgagee's Power of Sale

ALTHOUGH it is clear, and is generally accepted, that a mortgagee of the fee simple, whose mortgage was executed before the Law of Property Act 1925, has a statutory power of sale under that Act, it requires a somewhat careful reading of the Act to arrive at that conclusion. The first section dealing with the point is sect. 88 (1) which, however, only refers to mortgages by the creation of a term of years absolute, or by a charge by way of legal mortgage, neither of which modes were in vogue before the passing of the Act, although sub-sect. 6 says that sect. 88 applies to a mortgage whether created before or after the commencement of the Act. Then sect. 101 (1) is more general, and empowers a mortgagee, where the mortgage is made by deed (and executed after the 31st Dec. 1881), to sell "the mortgaged property"; and subsect. 6 declares that the power of sale conferred by sect. 101 includes such power of selling the estate in fee simple as is conferred by the Act relating to the realisation of mortgages. This no doubt refers to sect. 88 (1) (Wolstenholme and Cherry's Conveyancing Statutes, 11th edit., p. 311), which provides that when a mortgagee, of the description there referred to, sells, the conveyance is to operate to vest in the purchaser the fee simple. Then sect. 104 provides that a mortgagee exercising the power of sale conferred by the said Act shall have power by deed to convey the property sold for such estate and interest therein as he is by the Act authorised to sell or convey, or “may be the subject of the mortgage." By sub-sect. 2, where a conveyance is made in exercise of the statutory power of sale a purchaser is not, either before or on conveyance, concerned to see or inquire whether a case has arisen to authorise the sale, or due notice has been given, or the power is otherwise properly and regularly exercised; but any person damnified by an improper exercise of the power is to have his remedy in damages against the person exercising the power. A conveyance by a mortgagee made after the commencement of the Act need not state that it is made in exercise of the statutory power (sub-sect. (3).

French Domicile-English Will

IT is well settled that in the case of movables a will must be construed according to the law of the domicile of the testator, unless it can be ascertained, either by direct statement in the will, or by a combination of circumstances, that the testator intended to exclude the rule. The comparatively recent case of Re Cunnington; Healing v. Webb (130 L. T. Rep. 308 ; (1924) 1 Ch. 68) is a good illustration of this. There by a will made in English form, a testator, who described himself as a British subject then residing in France, gave to his sole executor, who was English, all his estate upon trust for conversion, and after payment of certain legacies to domestic servants, to divide the residue among ten named legatees; and if any of them died in the testator's lifetime the legacy was to belong to the issue of such persons. The testator died in France, and his will was proved in this country. Two of the residuary legatees died in the lifetime of the testator, without leaving issue. There was no real estate, and the property representing the residue was in England. The domicile of the testator was found to be French. By the law of that country there was no lapse of the shares of the legatees who died, and the survivors took the whole. It was held by Mr. Justice Eve that the domicile being French, and there being no sufficient indication in the will, either express or implied, that the testator desired that it should be construed by English law, the general rule applied, and the will must be construed by French law, and therefore there was no lapse, and the whole residue went to the eight surviving legatees.

Remaining Sons

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As a matter of literary style it may be commendable for different writers to describe the same event or the same matter in different ways, but in legal documents an unusual description of a common event or matter is a danger signal. Yet testators will ring the changes between such phrases as “surviving," then living," and “remaining." The use of the first of them is common enough, but is dangerous unless the event or person to be survived is clear. On p. 254, ante, we discussed a case where Mr. Justice Clauson had to construe the meaning of “ then living." Recently Mr. Justice Romer, in Re Evans, had to decide what was the meaning of a gift over of the share of any of the sons who died without issue to the remaining sons.” We have a feeling that the testator may have mentally divided his sons into two classes, those who died without issue and those who died leaving issue, and that, after what were in effect life interests to those who died without issue, the capital was to be shared by the remaining sons who had issue. It would have been difficult to carry this out, as while a man is alive there is always a possibility of his having issue, and on the death of a son without issue a brother of his who had then no issue could not be passed over, as he might afterwards have had issue, and the alternative would have been to hold his potential share until he had a child or died, but that would not be very satisfactory for him. It was argued that "remaining meant the sons remaining after some had been removed by death. Another proposition was that the testator was referring to the sons other than the son who had died without issue. Mr. Justice Romer found certain indications in the will - among others, that the gift over was not to the remaining sons or son, but to the remaining sons, when it was obvious that if “remaining" meant “surviving the deceased son," there might be only one or even none surviving himsuggesting that it meant "other," and so held. “Remaining is not a word often used in wills, but testators or their draftsmen should be careful to see that it is clear to whom a gift over will accrue, and so save the expense of almost inevitable litigation. It must not be forgotten that the law may defeat the gift over as soon as the original donee has a child who attains twenty-one, even though that child is not living at his death (Law of Property Act 1925, s. 134).

As from the 25th June 1928 the firms of Messrs. Pearce and Keele, carrying on business at No. 6, St. Michael's-street, Southampton, and at Hythe, Hants, and Messrs. Harfield and Son, carrying on business at No. 30, Portland-street, Southampton, have been amalgamated and will carry on business under the style of Messrs. Pearce, Keele, and Harfield, at No. 6, St. Michael's-street, Southampton, and at Hythe only, the partners of the new firm being Mr. W. K. Pearce and Mr. D. H. B. Harfield.

Second Sheet

NOTES OF NEW DECISIONS By Our Reporters in the Several Courts JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Canada (Alberta)—Intestacy-No next of kin-Escheated lands in Alberta-Disposal of personal property-Bona vacantiaAlberta Act (4 & 5 Edw. 7, c. 3, Dom.), ss. 3, 21-Ultimate Heir Act (1921 Alta. c. 11)-Ultra vires-British North America Act 1867 (30 & 31 Vict. c. 3), s. 109.

Appeal and cross-appeal by special leave from judgments of the Supreme Court of Canada, dated the 1st Feb. and the 20th April 1927 respectively. The appeal and the crossappeal raised questions concerning the rights of the Dominion of Canada and the Province of Alberta respectively in relation to escheats to the Crown and bona vacantia and the further question whether the Ultimate Heir Act 1921 was ultra vires. The case giving rise to the appeal and the cross-appeal came before the Appellate Division of the Supreme Court of Alberta as a consolidation of three separate applications by administrators under the Trustee Act, for advice and directions as to questions arising in the administration of the estates of three deceased persons. The appellant and the respondent intervened in the proceedings. In each case the deceased died in Alberta, domiciled in Alberta, intestate, and without heirs or next of kin (other than as provided in the Ultimate Heir Act, Alta. 1921, c. 11, in the case of M., who died after that Act came into force), and leaving both real and personal property. The Ultimate Heir Act 1921 provides by sect. 2: "When any person dies intestate in fact in respect of lands situate in the Province of Alberta, or being domiciled in Alberta dies intestate in respect of any moveable property or chose in action and no person or corporation is otherwise than under the provisions of this Act 'entitled thereto as the heir or next-of-kin of the intestate, then the latter shall be deemed to have made a duly executed and entirely valid will, devising or bequeathing such land, moveable property or chose in action to the body corporate known as the Governors of the University of Alberta." The questions submitted to the Supreme Court together with their answers were as follows: (1) Do lands situated in Alberta granted by the Crown since the 1st Sept. 1905, when the Alberta Act, 4 & 5 Edw. 7, c. 3, came into force, which have escheated for want of heirs or next of kin, escheat to the Crown in the right of the Dominion of Canada or in the right of the province of Alberta? The Supreme Court of Canada answered this question in favour of the Dominion of Canada. (2) Do escheated lands in the province of Alberta granted by the Crown prior to the 1st Sept. 1905, which have not become Crown lands by escheat or otherwise prior to that date, escheat to the Crown in the right of the Dominion of Canada or of the province of Alberta? The Supreme Court of Canada answered this question in favour of the Dominion of Canada. (3) Does personal property situated in Alberta of persons domiciled in Alberta and dying intestate since the 1st Sept. 1905, without next of kin, go to the Crown as bona vacantia in the right of the Dominion of Canada or of the province of Alberta? The Supreme Court of Canada answered this question in favour of the province. (4) Is cap. 11, 1921 (Alberta), entitled “ An Act to Provide for an Ultimate Heir of Lands and Next of Kin of Intestate Persons" (now R. S. A. 1922, c. 144, The Ultimate Heir Act) ultra vires in whole or in part? The Supreme Court of Canada answered that the statute in so far as it affects real estate was not competently enacted. The Attorney-General of Alberta appealed as to question 4, and there was a cross-appeal by the Attorney-General of Canada as to question 3.

Held, (1) on the cross-appeal, that the combined effect of sect. 109 of the British North America Act 1867 and of the Alberta Act 1905 was to give to the province the power of appropriation as regards bona vacantia, and that the observations of Lord Selborne, L.C. in Attorney-General of Ontario v. Mercer (49 L. T. Rep. 312; 8 App. Cas. 767) supported this construction; and (2) on the appeal that the Ultimate Heir Act 1921 was invalid so far as it purported to affect lands. Appeal and cross-appeal dismissed. [Attorney-General of Alberta v. Attorney-General of Canada, and cross-appeal. Priv. Co.: Lords Hailsham, Haldane, Buckmaster, Wrenbury, and Warrington. May 7, 8, 10,

11, and June 19.-Counsel for the Attorney-General of Alberta, O. M. Biggar, K.C. and Hon. Geoffrey Lawrence, K.C.; for the Attorney-General of Canada, H. P. Macmillan, K.C., T. Mathew, and McBride. Solicitors: for the Attorney-General of Alberta, Blake and Redden; for the Attorney-General of Canada, Charles Russell and Co.]

COURT OF APPEAL

Bankruptcy-Action for damages for personal injuries-Motorcar accident-Insurance against-Bankruptcy of defendant -Judgment for damages-Chose in action—-Vested in trustee in bankruptcy-Tort-Judgment after bankruptcy-No claim against trustee.

C. brought an action against H. claiming damages for personal injury suffered in a motor-car accident. Before judgment was given H. was adjudicated a bankrupt on the 9th Oct. 1925. On the 8th Feb. 1926 C. obtained judgment against H. for £643 11s. 1d. as damages. The appellant company had insured H. against motor-car accidents. On the 25th April 1926 H. committed a second act of bankruptcy, and on the 9th July 1926 was adjudicated bankrupt. On a claim by the trustees in both the first and the second bankruptcy against the appellant insurance company that the insurance company were liable to indemnify the bankrupt, who had accepted from the company prior to any judgment in the action £50 in settlement of any claim he might have against the company under his policy, and (or) the plaintiffs against the damages awarded to C.,

Held, agreeing with the decision of Tomlin, J., that the benefit of the indemnity being a chose in action vested in the trustee in the first bankruptcy and his right was not affected by any settlement arranged between the insurance company and H. as the insurance company had no power to treat with anyone except the trustee in the first bankruptcy, but C. had no claim against that trustee for the damages awarded to him, since his claim was one of tort and judgment was not obtained until after the first bankruptcy. So far as there should be any surplus in the first bankruptcy, which was not at all probable, C. would have a claim in the second bankruptcy, having recovered judgment prior to that bankruptcy, but he would only be able to prove for the £643 11s. 1d. pari passu with the other creditors in that bankruptcy. There being no privity of contract between C. and the insurance company, he had no right against the company. Re Harrington Motor Company Limited; Re Chaplin's Application (138 L. T. Rep. 185; (1928) 1 Ch. 105) applied and followed; Re Richardson; Ex Parte St. Thomas's Hospital (105 L. T. Rep. 226; (1911) 2 K. B. 705) distinguished.

[Hood's Trustee in Bankruptcy v. Southern Union General Insurance Company of Australasia Limited. Ct. of App.: Lord Hanworth, M.R., Lawrence and Russell, L.JJ. June 14. Counsel for the appellants, T. Eastham, K.C. and G. Malcolm Hilbery, K.C.; for the respondents, Edward Clayton, K.C. and A. E. Woodgate. Solicitors for the appellants, Corner and Co.; for the respondents, Leonard Bingham and Sharp.]

Company Debenture-Receiver-To be agent of company with power to take possession and get in property charged-Writ issued in name of company-Rescission of agreement for sale of land-Specific performance-Right to issue writ in name of company without consent.

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On the 16th Sept. 1927 the company, which was formed for the purpose of building and then selling houses, issued to H. a debenture for £75, charging its undertaking and all its assets to secure the sum of £75 and further advances. The debenture, which was in common form, provided for the appointment of a receiver after the principal moneys had become payable, and clause 6 provided a receiver and manager so appointed shall be the agent of the company and shall have power to take possession and get in the property hereby charged." The principal moneys having become due, H. appointed A. receiver and manager. On the 5th May 1928 the receiver A. issued the writ in this action in the name of the company against the defendant for rescission of an agreement dated the 23rd Sept. 1927 entered into on behalf of the company with the defendant for the sale of land, alternatively for specific performance. The defendant, on a motion before the Vice-Chancellor of

the Palatine Court, asked to set aside the writ on the ground that the name of the company as plaintiff ought to be struck out and all further proceedings stayed, as the action had been commenced without the consent of the company. On behalf of the receiver it was contended that he had the power under clause 6 of the debenture to bring the proceedings in the name of the company without its consent as being the agent of the company, with power to take possession of and get in the property the subject of his debenture. The Vice-Chancellor set aside the writ, on the ground that the receiver, who was not appointed by the court, had no power to sue in the name of the company without its consent.

Held, that the question was whether clause 6 in the debenture gave power to a receiver to sue in the name of the company, and as that clause, though it did not expressly state that the receiver had power to use the company's name, made him the agent of the company, and as such with power to get in the property, he must thereby be held to have power to get in the property by the only effective steps, namely, by suing in the name of the company with or without its consent, and if that was not open to him his security would be very much cut down. The appeal must therefore be allowed.

[W. Wheeler and Co. Limited v. Warren. Ct. of App.: Lord Hanworth, M.R., Lawrence and Russell, L.JJ. June 25.-Counsel: for the appellant, A. Grant, K.C. and John Bennett; for the respondent, J. M. Gover, K.C. and J. M. Easton. Solicitors: for the appellant, Milner and Bickford, for J. Arnold Houghton and Co., Manchester; for the respondent, Farrer-Morgan and Co., Manchester.]

CHANCERY DIVISION

Donatio mortis causa-Gift-Cheque drawn in favour of wife— Bank manager instructed to pay into wife's account-Death of drawer an hour after payment in-Cheque received by bank sub-manager, at drawer's house, in capacity as bank official— Wife entitled to keep money.

This summons, taken out by the trustees of the will, dated the 10th May 1923, of A. M. W., who died on the 29th June 1925, asked, among other questions, whether the testator's widow was entitled to keep for her benefit as a valid gift (mortis causa or otherwise) the sum of £94 1s. 10d., representing the proceeds of a cheque drawn by the testator in her favour on his bank at Kilburn, and cashed by her before his death. On the morning of the day of his death, the testator, having told his wife that it was his desire that all of his money in that bank should go to her, and sent for the sub-manager of the Kilburn branch, signed a cheque for the said amount of £94 1s. 10d., which his wife, on his instructions, had drawn, and which she then, also on his instructions, handed to the sub-manager, together with another cheque, telling him to open an account in her name at the Kilburn branch by paying in the two cheques. Shortly after eleven o'clock the sub-manager left the testator's house; the testator died at about 12.30, and on the same day the account was opened at the Kilburn branch of Barclay's Bank in the widow's name, her account being credited, and the testator's account being debited, with the amount of the cheque for £94 1s. 10d.

Held, the only proper inference from the material before the court was that the transaction was completed in the testator's house during the lifetime of the testator, and the widow was therefore entitled to keep the £94 1s. 10d. If the manager of the bank had accepted the instructions of the testator's wife, and had, in the lifetime of the testator given the necessary instructions to the bank, the court could have had no doubt that the widow was entitled to the £94 1s. 10d. The question to be considered was whether the cheque was to be regarded as having been presented at the moment when the sub-manager of the bank received it. The court was disposed to take the view that the submanager was receiving the cheque in the exercise of his authority as a bank official, and that the matter was complete when once he had accepted the cheque.

Intestacy-War savings certificates-Gift under regulations Savings bank deposit-Savings Banks Act 1887 (50 & 51 Vict. c. 40), s. 3—Birmingham Corporation Act 1919 (9 & 10 Geo. 5, c. 65), s. 11-War Loan (Supplemental Provisions) Act 1915 (5 & 6 Geo. 5, c. 93), s. 5—War Loan Act 1918 (8 & 9 Geo. 5, c. 25), s. 2, sub-s. 4.

By this summons, F. V., the daughter of H. C. K., who died a widow and intestate on the 6th April 1927, sought the determination of the question whether she was entitled to one-fourth part of the estate of the said H. C. K., and asked for a declaration that certain moneys formed part of his general estate. She was one of four daughters of the intestate, two of whom were defendants, and had received a grant of letters of administration two months after his death. H. C. K. had had to his credit in the municipal bank at Birmingham the sum of £257 14s. 4d., and had a holding in war savings certificates representing a total value of £572 16s. 6d. He had purported to nominate the two defendants to the summons, under the War Savings Certificates Regulations 1919, to receive the holding, and nominated them also to receive the aforesaid sum standing to his credit at the Birmingham municipal bank. £558 17s. 4d. was paid to them in respect of 500 of the war savings certificates (500 being the maximum holding for any one purchaser), and £16 representing a refund of the purchase price of what H. C. K. had held over and above the maximum. The plaintiff, F. V., alleged that the regulation as to maximum holdings rendered the intestate's nomination of the £572 16s. 6d. void as to the £72 16s. 6d., which, she alleged, was thus part of his general estate, as also was the £257 14s. 4d., as the regulations by virtue of which this sum was paid to the two defendants were ultra vires the Birmingham Corporation, under the Birmingham Corporation Act 1919.

Held, the plaintiff was not entitled to one-fourth part of the estate of H. C. K., and that the defendants were entitled to keep the moneys which H. C. K. had purported to nominate them to receive. The War Savings Certificates Regulations 1919 (applicable to the War Loan Acts of 1915 and 1918) contained no reference to the Savings Banks Act 1887, but they did contain provisions as to nominations. It was, therefore, contended on behalf of the defendants that the regulations were ultra vires because the provisions which they applied were not provisions of the Act of 1887. But the court took the view that it was possible to apply provisions of that Act without in fact saying that they were such provisions. The regulations of 1919 applied provisions of the Act of 1887 "with modifications. As to the war savings certificates, the court took the view that power to nominate extended to all the certificates held by the nominator. Certificates held in excess of the 500 might be forfeitable; but nomination of such certificates was not void. As to the £257 14s. 4d. at the Birmingham municipal bank, sect. 11 of the Birmingham Corporations Act 1919 did not bear out the view that the doing away with the maximum of £100, imposed by the Act of 1887, was something more than a modification. By sect. 11, the Birmingham Corporation was enabled to make regulations as to nominations similar to those provided for in the Act of 1887. To do away with the £100 limit was not ultra vires the corporation.

[Re Kimber; Vale v. Rockman. Ch. Div.: Tomlin, J. June 7.-Counsel: W. Arnold Jolly; L. W. Byrne. Solicitors: Foster, Grave, and Jay, for Philip Baker and Co., Birmingham; Tiddeman and Marshall, for Bailey, Cox, and Co., Birmingham.]

KING'S BENCH DIVISION

Landlord and tenant-Breach of covenant-Refusal to renew lease-Premises subject to Rent Restriction Acts—Action for possession brought in High Court-Successful plaintiff not entitled to costs.

The point in dispute between the parties was the renewal of an existing lease. The plaintiffs claimed possession of a dwelling-house on the ground that there had been breaches of covenant which entitled them to refuse to renew the lease. The plaintiffs succeeded. Thereupon the question of costs For the defendants it was argued that as the premises in question were subject to the Rent Restriction

arose.

The

The respondents were a firm of asphalt contractors who, for the sole purpose of obtaining contracts for the British Empire Exhibition at Wembley, subscribed to the guarantee fund of the exhibition. In due course the respondents were called upon to make a payment under the guarantee. The respondents sought to deduct the sum so paid in computing their profits under Sched. D for income-tax purposes. General Commissioners held that the amount of the guarantee paid by the respondents was money wholly and exclusively laid out for the purpose of the respondents' trade, and was, therefore, a proper deduction in ascertaining the profits. The Crown appealed, and contended (a) that the payment was a capital expense; (b) that it was not sufficiently connected with the respondents' trade to be a proper deduction.

Held, that the payment was not sufficiently closely connected with the respondents' trade to be allowed as an expense of earning the profits, and the appeal must be allowed. The question whether the payment was a capital payment did not therefore arise.

[Morley v. Lawford and Co. K. B. Div.: Rowlatt, J. June 22.-Counsel: Sir Thomas Inskip, K.C. (S.-G.) and Reginald Hills; Latter, K.C., du Parcq, K.C., and J. P. Eddy. Solicitors: Solicitor of Inland Revenue; Hulbert, Crowe, and Hulbert.]

PROBATE, DIVORCE, AND ADMIRALTY DIVISION

Divorce Business

Divorce Jurisdiction-Parties domiciled in England-Desertion of wife by husband-Subsequent change of domicile of husband -Wife's petition for divorce-Contention that husband cannot assert change of domicile to bar jurisdiction-Estoppel.

This was an appeal by a wife, petitioning for divorce, from an order by the registrar directing that an issue be tried as to the domicile of the respondent husband, who had appeared under protest to the wife's petition. The petitioner demurred to the trial of the issue on the ground that a change of domicile by the respondent, after he had deserted her, did not oust the jurisdiction of the court to entertain her petition. The parties were married in 1915 and in 1921, whilst still retaining their domicile of origin, which was English, the wife obtained a decree of judicial separation from her husband on the ground of his desertion. She now petitioned for divorce, alleging adultery on the part of her husband in 1927 and 1928 at Nice, France. The husband, alleging that he was domiciled in France, appeared under protest and obtained an order for the trial of the issue, against which the wife appealed. The wife asked that the order should be set aside and alternatively for a direction that the issue should be tried by viva voce evidence at the hearing of the petition. The contention advanced for the wife was that a husband domiciled in England, who deserted his wife was estopped from pleading, in a suit subsequently brought by his wife for dissolution of marriage, that he had acquired a domicile elsewhere, and that in such a case the deserted wife was entitled to determine the forum in which she should take proceedings. In effect she contended that for the purposes of the suit for divorce, the husband's domicile was stereotyped by the decree of judicial separation granted on the ground of desertion and could not be altered without the consent of the wife. It was admitted that there was no direct authority for this proposition, but counsel for the wife, inter alia, cited obiter dicta to this effect of Mr. Justice Barnes (later Lord Gorell, P.), in Armytage v.