the passage of troops, furnishing supplies, facilitating transport, &c. As the fundamental basis of neutrality-viz., impartiality— was absent, we do not find in ancient records any term corresponding to the modern "neutrality." In course of time, say by the later Middle Ages, belligerents began to abstain from compelling third parties to fight with them or against them. Third States knew of no legal rights and obligations incidental to neutrality; they held it permissible to supply a belligerent with troops, money, and other assistance, without incurring the charge of hostile association. Hence treaties were often concluded to restrain such practices; and by the sixteenth century certain elements of real neutrality began to be part of the law of nations. That, a neutral might. continue commercial intercourse with the enemy was not admitted by the other combatant State; thus in the Spanish wars England denied the claims of the Dutch to trade freely with Spain, on the ground that neutral commerce must yield to the pressing needs of a belligerent-" cedat mercatura regno, pecunia vitae." In the following century Grotius added little to the subject; his treatment of it proves that very few rules of neutrality then existed, and he admits a right on the part of third States to decide as to the justice of the belligerents' contentions, and to give aid to the side whose cause is just. It was not till the eighteenth century that the principle of impartiality-but not yet in the strict sensecame into being, with the corresponding obligation of belligerents to respect neutral territory. The exposition of Bynkershoek (who did not, however, use the modern term) and of Vattel assumes a more modern character, though the latter still thought a neutral entitled to prevent the passage of a belligerent whose cause was deemed to be unjust. At the end of the eighteenth century and the beginning of the nineteenth a distinction was frequently drawn between perfect and "imperfect" neutrality, whereby the door was opened to uncertainty, irregularity, and arbitrary action; but by the beginning of the present century-thanks to the repeated practices of States, international acts, and solemn declarations, the Hague regulations, and the Declaration of London-the rights and duties of neutrality became much more clearly defined.

A further change of a drastic and revolutionary character appears to be imminent, as the events of the present war have shown. Under the existing law a third State is not bound to remain neutral, nor is it entitled to demand from the belligerents that it shall so remain. The question whether a third State is to remain neutral or participate in the conflict is not one of international law; it is to be settled solely by considerations of national policy. Again, under the existing law the subjects of a third State are permitted to continue their commercial relationships with the belligerents, but under the same law considerable restrictions are also imposed on them in regard to contraband trade, blockade running, and unneutral service. Now, these restrictions are the result of a compromise, allowing a wide latitude to neutral commerce; a certain balance was struck between the peaceful avocations and profit-making enterprises of neutrals on the one side and the interests of belligerents in the prosecution of hostilities on the other. But when such a colossal convulsion as the present breaks out in the world; when the self-preservation of a group of great nations is at stake; when such a group finds itself opposed to another group that pays no regard to the dictates of law and humanity; when we consider, further, the present unprecedented circumstances, the deadly and concealed means of warfare, the rapid modes of transport and communication, the articles of commerce seemingly innocent but so readily convertible for warlike purposes, the multifarious ramifications in the complicated nexus of the whole society of States—when we take into account all these vital factors, we cannot but realise that the old compromise between belligerency and neutrality is no longer tenable; that the liberties conceded before to neutrals must of necessity be further restricted.

66

Neutrality is, to use a mathematical expression, a function" of belligerency; it is theoretically subservient to it, and in practice it must depend on the conditions and circumstances of warfare. And so, having regard to the extraordinary nature of the present war, it is inevitable that the privileges of neutrals should be circumscribed. It is unreasonable to expect, and it would be suicidal folly for belligerents to admit, that this or that neutral State may freely continue its intercourse whereby their selfpreservation is seriously endangered. To hold such a view is to

make neutrals-as the President said in The Leonora-" the actual arbiters of the fate of a disastrous war to which they were not parties, and from which they not only did not suffer, but actually achieved gain." The British Order in Council aims at the enemy, and was issued on account of his grossly unlawful conduct; the fact that neutral States are thereby affected is due to the connection between and interdependence of States. A war between great nations cannot nowadays be strictly localised; the whole world is bound to be more or less involved in it. Neutrals must therefore either bear their hard lot as best they can, or participate in the war. What will determine the choice of one side or the other? Will it be considerations of temporary or apparent material gain, or of the justice of the cause? If the latter, then we get a manifestation of a partnership of nations in embryo; and, conversely, to ensure that the justice of the cause shall triumph in a conflict between two sides, it is essential that some form of a partnership or league of nations be established for the purpose of acting in concert in the interests of right and justice. And so, either war will be abolished altogether, or, failing that, neutrality will cease to be an institution of the public law of the family of States. COLEMAN PHILLIPSON.

COMMENTS ON CASES.

Validity of Factory Regulations.

66

THE divergence of judicial opinion revealed by the decision of the recent case of Mackey v. James Henry Monks (Preston) Limited 118 L. T. Rep. 65) was, perhaps, unusually striking. But if it was so, the reason of it is quite readily intelligible when the statutory provisions that gave rise to it are considered. In the court of first instance—the King's Bench Division in Ireland-one of the three learned judges who heard the case differed from his colleagues who sat with him. In the Court of Appeal in that country the decision of the majority of the King's Bench Division was affirmed by all three Lords Justices. But when the case came before the House of Lords, three of the five learned Lords could not see their way to agree with the decision of the Court of Appeal. In the result, therefore, five judges and two Lords took one view-the erroneous view as it turned out-of the proper construction to be placed upon, and the meaning that ought to be ascribed to, the provisions of sect. 104 of the Factory and Workshop Act 1901 (1 Edw. 7, c. 22), while one judge and three Lords took another. In Ireland, the decision had been that the plaintiff was not entitled to succeed in his action, as sect. 79 of the Act of 1901 did not authorise the Home Secretary to make regulations imposing liability upon the owner of a ship, but only upon the owner or occupier of a factory"; and that as a ship was not made a "factory" under the Act, certain regulations which had been introduced were ultra vires. In the House of Lord, on the other hand, the decision wasLords Parmoor and Wrenbury dissenting-that the regulations were not ultra vires; and that, therefore, the plaintiff was entitled to judgment. In order to comprehend the cause of that difference in the conclusion arrived at, it is necessary to turn to sect. 101 of the Act of 1901. Sub-sect. 1 of that section enacts that the provisions of the Act with respect to (inter alia) regulations for dangerous trades shall have effect as if every dock, wharf, quay, and warehouse, and all machinery and plant used in the process of loading or unloading or coaling any ship in any dock, harbour, or canal, were included in the word " factory." Small wonder that such a roundabout way of expressing the intentions of the Legislature with respect to those specified processes relating to ships should cause doubt and confusion. Although a ship itself is not a factory, yet, as it was put by Lord Finlay, L C., "it is the tout ensemble of the machinery and plant used in the processes of loading or unloading on each occasion which, under sect. 104, is deemed to be included in the word 'factory." Such being the view entertained by the majority of the learned Lords, despite its contradicting the opinion expressed by almost double their number-namely, five judges of inferior tribunals and two learned Lords-the law is now settled that regulations may be made concerning ships for the purpose of complying with the requirements of the Act of

1901.

Performance of Contract Prevented by the War.

THE main point at issue in the recent case of Blackburn Bobbin Company Limited v. Allen and Sons (118 L. T. Rep. 222) was characterised by Mr. Justice McCardie in the opening passage of his written judgment as being one "of far-reaching import

ance." And when our report of that case is looked at and it is seen how frequent in occurrence may prove to be the question that the learned judge had to determine, it will be recognised that his Lordship did not place too high an estimate on that question: Had the contract in that case, which had been entered into by the parties in the circumstances that are detailed in our report, been dissolved by the outbreak of the war in Aug. 1914; or had it been annulled under sect. 1 of the Courts (Emergency Powers) Act 1917 (7 & 8 Geo. 5, c. 25)? It was not a matter in which trading with the enemy came into consideration, as in the numerous cases that have arisen since the beginning of hostilities. For the plaintiffs were British manufacturers of bobbins for spinning at Blackburn, while the defendants were British timber merchants at Hull Nor was there any administrative intervention by the British Government. It was simply a case in which the performance of the contract became utterly impracticable because of the war. There were, however, no war, or force m jeure, or suspension provisions contained in the contract, such as have come into discussion in so many recent cases upon which we have had occasion to comment. "The vast disorganising effect of the war on trade and transport," to which Mr. Justice McCardie made reference, is known to everyone. And that "it undoubtedly effected a revolution of circumstances and rendered it impossible for the defendants to deliver the timber in accordance with their bargain" was no more than was to be expected as things turned out. The defendants' assertion that the contract had been dissolved by the outbreak of the war was just the natural result of the predicament into which it forced them and thousands of other traders. But was that assertion maintainable? That was the difficult problem before the learned judge. And a perusal of his judgment, with its masterly review of the various decisions necessitated by the war which have been pronounced during the past three years, will prove no less interesting than instructive. His Lordship's remark that "it is obvious that the principle raised by the case is one of vital and general importance" is So unchallangeable that until the highest tribunal has been afforded an opportunity of dealing with it no really satisfactory conclusion can be regarded as having been arrived at. Suffice it to say for the present that Mr. Justice McCardie's reasoning lends strong support to the view which he took that the contract was still in force, and that its breach, involuntary_though it was, rendered the plaintiffs entitled to damages. But his Lordship's allusion to Mr. Justice Atkin's recognition in Lloyd Royal Belge Société Anonyme v. Stath tos (see 144 L. T. Jour., p 42) and Lord Justice Pickford's in Hulton and Co. v. Chadwick and Taylor (see 144 L. T. Jour., p. 273)—that the law upon the matter is undoubtedly in process of evolution-prevents any definite opinion upon it. "The point must presumably be solved upon broad existing principles of contract law," added his Lordship. And the House of Lords alone can furnish that solution conclusively.

THE CONVEYANCER.

Statutory Maintenance of Infants.

It is perhaps singular that sect. 43 of the Conveyancing Act 1881, which is clear and explicit in its terms, should be the subject of so many judicial decisions. As will be remembered, that section enables trustees who hold property in trust for an infant, either for life, or for any greater interest, and whether absolutely or contingently on his attaining the age of twenty-one years, or on the occurrence of any event before his attaining that age, to apply the income of that property for the infant's maintenance, whether there is any other fund applicable to the same purpose, or any person bound by law to provide for the infant's maintenance, or not, provided a contrary intention is not expressed in the trust instrument. It was decided at an early period that in the case of future and contingent interests the section only applies where the gift carries the intermediate income: (see Re Judkin's Trusts, 50 L. T. Rep. 200; 25 Ch. Div. 743). In that case the testator directed his trustees to stand possessed of the residue of the moneys arising from the sale and conversion of his real and personal estate upon trust to pay thereout £1500, to be equally divided between such of six legatees named as should be alive at the death of A. B., such shares to be paid to them respectively on attaining twenty-one or marrying. The trustees set apart and invested £1500 to meet the legacy; nevertheless it was held that the income of that fund, during the life of A. B., passed to the residuary legatee. Re Dickson; Hill v. Grant (52 L. T. Rep. 707; 29 Ch. Div. 331) was a similar case. There the testator gave to each of the children who should be living at his death, and attain twenty-one, of certain named persons, the sum of £1000, and in case any of such children should die in his lifetime, leaving children living at his death, and attaining twenty one, then he gave a sum of £1000 to and equally between such children of each such child. And he directed his

trustees to hold his residuary estate in trust for his nephews and nieces living at his death. It was held by the Court of Appeal, affirming the decision of Mr. Justice Kay (as he then was), that, although the trustees had set apart a sum to answer these legacies, the infant legatees were not entitled to maintenance. Lord Justice Cotton in that case seems to have based his judgment principally on the ground that sect. 43 only applied to a legacy set apart by the direction of the testator, so that the income of the legacy should go to the infant if he attained twenty-one. Lord Justice Fry, while not differing from that view, preferred to rest his judgment on the ground that during the infancy of the legatees the income was given to the residuary legatee, not by implication, but by express words, because there was an express gift of the residue, and that residue included the income of the legacy. It has been decided, however, that in the following cases a future and contingent interest carries the intermediate income, which is therefore applicable for maintenance under the statute: (1) Gifts by will of contingent residuary gifts of personalty, or residuary realty and personalty given together (Genery v. Fitzgerald, Jac. 468), and see Bective v. Hodgson (10 H. L. C. 656), where Lord Westbury laid it down that if by a will the whole of the personal estate or the residue of the personal estate be the subject of an executory bequest, the income of such personal estate follows the principal, as an accessory, and must, during the period which the law allows for accumulation, be accumulated and added to the principal. As pointed out by Mr. Justice Chitty (as he then was) in Re Holford (70 L. T. Rep. 777; (1894) 3 Ch. 35), the principle enunciated by Lord Westbury applies equally where the residuary personal estate is given contingently to one person, or two or more by name or to a class. (2) A contingent legacy directed to be set apart for the benefit of the legatees, and not merely for the con• venience of the residuary estate, as in Kidman v. Kidman (40 L. J. 359, Ch.). There a testator bequeathed to his executors the sum of £1200, upon trust for A. for life, and after her decease for the children of A., when and as they should respectively attain the age of twenty-one years. But if A. should die without lawful issue, then over. It was held by Vice-Chancellor Malins that the gift to the children of A. was contingent on their attaining the age of twenty-one years, but that, as the legacy was severed from the residue for the benefit of the tenant for life and remainderman, the income from the death of A. till the children attained twenty-one must be accumulated to go with the capital, each child on attaining twenty-one taking his or her share of the fund as it then existed. And as in Re Medlock (54 L. T. Rep. 828; 55 L. J. 738, Ch.), where a testator bequeathed to his trustee the sum of £750, upon trust to divide the same among such of his three named grandchildren as should be living at the death of the testator and attained twenty-one or married, and, if any of such grandchildren predeceased him, between their children as therein mentioned, and, in default of any such person attaining a vested interest, the said sum of £750, and the investments thereof, were to fall into his residuary personal estate. The persons contingently entitled to the £750 were infants. It was held by Mr. Justice Kay that the £750 was by the terms of the will directed to be set apart for the benefit of the contingent legatees; there was a gift to them of the intermediate income, which was therefore applicable for their maintenance. (3) Where the legacy is specific as in Re Clements; Clements v. Pearsall (70 L. T.. Rep. 682; (1894) 1 Ch. 665). That was a gift of stock to trustees in trust for such of testator's granddaughters as should survive him and attain the age of twenty-one years. (4) To a gift of leasehold property (Re Woodin; Woodin v. Glass, 72 L. T. Rep. 740; (1895) 2 Ch. 309). In the recent case of Re Boulter; Capital and Counties Bank v. Boulter (144 L. T. Jour. 384) it was held that an infant who was contingently entitled for life to the income of a fund vested in trustees was entitled to maintenance out of the income under the aforesaid section. Although the section authorises trustees to apply the income for maintenance, notwithstanding there is a person bound by law to provide for the infant's maintenance, it is not the usual practice of the court to allow maintenance if the father is living, and of sufficient ability to maintain the infants. The phrase sufficient ability," however, is an elastic one. In Jervoise v. Silk (Cooper, 52) maintenance was allowed where the father had £6000 a year and his six infant children were entitled to an estate of £8600 a year. Sir William Grant in that case observed that it was very loose to consider any particular income as enabling a father to maintain his children, and that it would be a harsh thing for the court to oblige the father to put down his establishment in any part to educate his children when they had large incomes of their own.

Sale with Consent.

WHERE a testator directs his trustees to sell his property, but adds with the consent or approval or at the request of some other person, if such other person is alive and sui juris, but refuses to give such consent or approval or to make such request, it is difficult to see how the sale can be effected. The testator has put a check on the trust for sale and there is no reason why it should be dis-.

regarded. If, however, that other person is dead, lunatic, or an infant, can the trustees dispense with the consent, approval, or request and sell without it? Such person is not in a position to give or refuse such consent, &c.; still, the testator has not put the consent, &c., in the negative form, to the effect that the trustees shall sell unless the other person requests them not to do so. In the latter case, if such other person was not in a position to make the request, the trust would prevail, and if the request or approval has been made a necessary condition of the sale how can it be dispensed with ? This question has been raised and answered in Re Powell (noted ante, p. 459), where there was a trust for sale at such time and in such manner as should be approved by the testator's daughters or the survivor of them in writing. The survivor of the daughters had died, and the decision of the court as to the continuance of the trust for sale was sought. Thornton v. Hawley (10 Ves. 129) was the converse case where trustees were directed after request by a man and his wife or the survivor of them to sell certain bank annuities and, with the consent and approbation of the man and his wife or the survivor of them, lay out the proceeds of sale in the purchase of hereditaments to be conveyed to the legal uses in the will mentioned. The man and his wife had both died without making any such request. Sir William Grant said that it was injudicious to insert words making it depend upon the intention of the man and his wife if the purpose was absolutely an investment in land. On the other hand, it was injudicious to adapt all the limitations to a purchase of land if the man and his wife were to have an option. It was decided that the intention of the parties was impress the character of land upon the fund, though the trustees were not to be liable for laches unless a request was made. In Pearce v. Gardner (10 Hare, 287) the testator gave his residue upon trust to sell within five years after his death. The primâ facie effect of this direction would be that a sale was not to take place later than five years from the testator's death. Vice-Chancellor Turner, however, said that the question was whether the words were merely directory, indicating the time within which the testator desired the trust to be executed, or whether they were imperative that the sale was to be effected within and not after the five years. The answer depended on the construction of the whole will. In the opinion of the Vice-Chancellor the words were merely directory, and the trustees could sell after the five years had expired, as the intention of the will was to treat the realty as personalty. Similarly in Re Powell Mr. Justice Eve found that the trusts of the will were properly applicable to personalty alone, so that the trust for sale was still in force, though the daughters were dead. Conveyancers can get over the difficulty by providing, if it is so desired, that there shall be a trust for sale, but that during the life of A. it shall not be executed without his written consent if he is sui juris.

to

NOTES OF RECENT DECISIONS NOT YET REPORTED.

BY OUR REPORTERS IN THE SEVERAL COURTS.

HOUSE OF LORDS.

Contract-Shipbuilding-Contract to become void if Builder unable to deliver War- Non-delivery of Ship- Whether Contract was void or voidable at Purchaser's Option.

Appeal from an order of the Court of Appeal, reported 117 L. T. Rep. 71, which affirmed a decision of Bailhache, J. upon an award stated in the form of a special case. The appellants agreed to purchase from the respondents a steamship to be constructed for them in terms of a contract dated the 6th March 1913. The price was to be £98,450, payable by instalments. Clause 5 of the contract provided: "The said steamer, unless the construction thereof shall be delayed by fire, strike, or lockout, or any other unpreventable clause shall be com

pleted ready for trial by the 30th Oct. 1914." By agreement the date was subsequently extended to the 30th Jan. 1915. By clause 12: "In case the builders become bankrupt or insolvent or fail or be unable to deliver the steamer within eight months from the date agreed by this contract, thereupon this contract shall become void and all money paid by the purchasers shall be repaid to them with interest at 5 per cent.

except only in the event of France becoming engaged in a European war, when the above limit of eight months shall be extended equal to the duration of the said war, but in no case to exceed eighteen months in all." The builders contended that in the events which had happened the clause became operative on the 30th July 1916 and the contract then became void. The purchasers claimed the ship or damages for non-delivery, and contended (inter alia) that the builders were not entitled to say the contract was void, but that it was only voidable at the purchaser's option.

Held, that clause 12 became operative on the 30th July 1916, and the contract then became void. Appeal dismissed.

[New Zealand Shipping Company Limited v. Société des Ateliers et Chantiers de France. H. of L.: Lord Chancellor (Lord Finlay', Lords Atkinson, Shaw, and Wrenbury. March 19, 21, 25, and April 25.-Counsel: for the appellante, Leck, K.C. and Simey; for the respondents, Hogg, K.C. and Barrington Word. Solicitors: W. A. Crump and Son; Calder Woods and Pethick.]

Vendor and Purchaser-Open Contract to purchase Land-Action for specific Performance-Judgment in Favour of VendorsInquiry as to Title-Objections-Evidence of Purchaser's Knowledge of incurable D. fects-Admissibility after Judgment.

Appeal by the defendant from an order of the Court of Appeal (116 L. T. Rep. 391; (1917) 1 Ch. 414), which reversed the decision of the Vice-Chancellor of the County Palatine of Lancaster. The plaintiffs were the owners in fee simple of certain lands at Droylsden, in the county of Lancaster, parts of which they had sold in small estates for building land. In April 1915 the managing director entered into a contract on their behalf with the defendant, for the sale to him of the whole of the remaining portion of the land which had not been sold, in these words: "Bought of the Alderdale Estate Company Limited the whole of the land, subject to measurement, approximately 20 acres, at the price of £250 per acre.-P. MCGRORY." The defendant subsequently refused to complete on the ground that the title was defective. The respondents thereupon commenced an action for specific performance of the contract, and the Vice-Chancellor gave judgment for them, holding that a good title could be made to the property, and directed an inquiry to be made by the registrar to ascertain whether his view was right. Before the registrar the respondents' reply to the appellant's objections was in substance that he was well aware of these defects when he signed the contract. The appellant contended that this evidence was inadmissible, but the registrar ruled against him and admitted it. The question of admissibility was referred to the Vice-Chancellor, who decided the point raised in favour of the defendant upon the ground that any alleged waiver by the defendant ought to have been proved at the trial, and that it was then too late to set it up. The Court of Appeal held that the vendor in the case of an open contract to purchase land was entitled to give evidence after judgment for specific performance that the purchaser had knowledge prior to the date of the contract of any irremovable objections raised by him to the vendor's title in the property, and, applying Upperton v. Nicholson (25 L. T. Rep. 4; L. Rep. 6 Ch App. 436), reversed the decision of the ViceChancellor. The defendant appealed. After consideration: Held, that the appeal should be allowed and the judgment of the Vice-Chancellor restored.

[McGrory v. Alderdale Estate Company Limited. H. of L. : Lord Chancellor (Lord Finlay), Viscount Haldane, Lords Atkinson, Shaw, and Parmoor. April 7, 9, and 25-Counsel: for the appellant, Maugham, K.C. and Clarkson; for the respondents, P. O. Lawrence, K.C. and Eastwood. Solicitors: Busk, Mellor, and Norris, for Sla'er, Heelis, and Co., Manchester; Hyman Isaacs, Lewis, and Mills, for F O. S. Leak and Pratt, Manchester.]

COURT OF APPEAL. Employer and Workman-Death caused by Accident-Claim by Dependants-Compensation-Workman passing along Street on his Employers' Business-Explosive Bomb falling from hostile Aircraft on Street-" Accident arising out of and in the Course of the Employment" Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), s. 1.

On the 13th June 1917 the deceased was passing along a street, on the respondents' business, when an explosive bomb from hostile aircraft fell and injured him. He was removed to a hospital and died shortly afterwards. No evidence was called. The fact of the falling of the bomb occasioning the death of the deceased was admitted. A claim for compensation was made against the respondents by the dependants of the deceased, which was followed in due course by a request for arbitration under the Workmen's Compensation Act 1906, on the ground that the death of the deceased had been caused by "accident arising out of and in the course of " his employment within the meaning of sect. 1 of that Act. It was decided by the learned County Court judge that the applicants had failed to establish their claim. The applicants appealed.

Held, that there was no special danger attaching to the spot to which the deceased was sent, the danger of being struck by an explosive bomb from hostile aircraft not being what could be properly called a "street risk" specially attaching to persons passing along the streets; that the risk of being killed by the bomb which injured the deceased was precisely common to all who might be at or near the spot at

the time, and had no relation to his employment; and that his dependants were nor therefore entitled to compensation. Allcock v. Rogers (144 L. T. Jour. 401) considered and applied. Dennis v. A. J. White and Co. (116 L. T. Rep. 774; (1917) 1 A. C.) distinguished. Appeal dismissed.

[Knyvett v. Wilkinson Brothers Limited. Ct. of App.: Swinfen Eady and Bankes, L.JJ. and Neville, J. April 25 and 26.-Counsel: Broxholm: William Shakespeare. Solicitors: H. W. Henniker Rance; C. J. Smith and Hudson.] Employer and Workman-Death caused by Accident-Compensa tion-Claim by Dependants-Engine-driver trimming stoking Shovel on running Rail—Added Peril-Risk not incidental to Employment-" Accident arising out of and in the Course of the Employment"-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), 8. 1.

On the 6th Feb. 1917 the deceased, who was an enginedriver, met with the accident which caused his death in the following circumstances: His engine wae standing outside the engine shed on what were running rails. In order to trim the shovel which was used for stoking, the deceased and the fireman alighted from the engine. He stood in the 6ft. way between the rails on which his engine was standing and the adjoining running rails, the fireman holding the shovel to one of the rails as if the same had been an anvil, while the deceased used a hammer and chisel in order to trim the shovel. During this operation a light engine came along which knocked down the deceased and killed him. It was not disputed that the position in which the deceased so placed himself was extremely dangerous. There was evidence that it was no part of the duty of the deceased and the fireman to trim the shovel. What they did was done voluntarily. They could not have been ordered to do it. A work man was employed to trim the shove's. If a shovel was unusable, the proper course for the engine-drivers and firemen was to return it to the store, and either have a new one, or the old one repaired and made serviceable. The dependants of the deceased having made a claim for compensation against his employers, it was followed in due course by a request for arbitration under the Workmen's Compensation Act 1906. It was urged on behalf of the applicants that it was a common thing for engine drivers so to trim the shovels as the deceased had done. The contention of the respondents, on the other hand, was that the deceased had met with his death by doing an act not within the sphere of his employment, he having voluntarily added a grave peril to the ordinary risks of his employment, and that it was in so doing that he met with his death. It was decided by the learned County Court judge that for the deceased to alight from his engine and to trim his shovel on a running rail was not a thing that he was employed to do; and that the applicants had failed to satisfy him that the use of a running rail for the purpose of trimming a shovel was known to any responsible officer of the respondents, or was so notorious on the line that the inference ought to be drawn that it must have been known and acquiesced in and thus brought within the ambit of the employment within the meaning of the authorities. His Honour came, therefore, to the conclusion that the deceased, in taking the course that he did, had either gone outside his employment or, if that was not the true view, had voluntarily taken upon himself in doing his work an added risk, material in extent, and thereby brought about the accident which resulted in his death. The applicants appealed.

Held, that, having regard to the evidence, it could not be substantiated that there was no evidence upon which the learned County Court judge could arrive at the conclusion at which he did; that the risk taken by the deceased was not incidental to his employment; and that therefore there was no ground for disturbing the finding in the court below. Davidson v. Mac Robb (144 L T. Jour. 256; (1918) A. C. 320) considered and applied. Appeal dismissed.

[Steves v. London and South-Western Railway Company. Ct. of App.: Sinfen Eady and Bankes, L.JJ and Neville, J. April 23-Counsel: Compston, K.C. and G. L. F. Mortimer; Wiliam Shake peare Solicitors: Shepstone, Stone, Ba ber, and Ellis, gents for Ford and Warren, Leeds; William Bishop.] Employer and Workman-Personal Injury by Accident-Compensation-Request for Arbitration-Offer by Employers during course of Proceedings-Workman to be found suitable Work at his old Rate of Wages-Offer that shoulde taken into Consideration in making Award-Workmen's Compensation Act 1906 (6 Edw. 7, c 58, s. 1

The applicant claimed compensation against the respondents, which was followed in due course by a request for arbitration under the Workmen's Compensation Act 1906. At the hearing before the learned County Court judge on the 29th Oct. 1917, after the evidence was completed, but before His Honour delivered his judgment, the respondents offered to take the applicant back at his old rate of wages and to find him suitable

Occupation. That offer was not, however, taken into account by His Honour because the applicant would have suffered no loss of wages, and he made an award in favour of the applicant. On the 11th April 1917 the applicant met with an accident that seriously affected the sight of his left eye. After he had substantially recovered, the respondents, his employers, in Aug. 1917 offered him work and took him back to work. The work that he was given to do was that of mixing lime and making mortar with lime. The effect of that work was that after four or five days the applicant found that it began seriously to affect his sound right eye, and he discontinued the work. The respondents appealed from so much of the award of the learned County Court judge as ordered the continuance of a certain payment subsequent to the date of the award.

Held, that where an offer was made by an employer, during the course of arbitration proceedings for the purpose of obtaining compensation under the Workmen's Compensation Act 1906, to take the workman back and to find him suitable work-the nature of which should be specified-at his old rate of wages, it was a matter that ought to be considered and taken into account by the learned County Court judge; that it was a saving of expense that it should be so considered, inasmuch as, although it might entail an adjournment of the case, His Honour had power over the costs and could order the party to pay the costs which were occasioned or necessitated by the adjournment; and that in these circumstances the present case must go back to be reconsidered by His Honour. Jenkinson v. Steiner and Co. (9 B. W. C. C. 571) considered and applied. Appeal allowed.

[Cros8 v. Whitehead Aircraft Limited. Ct of App.: Swinfen Eady and Bankes, L.JJ. and Neville J. April 23-Counsel: William Shakespeare; Van den Berg. Solicitors: William Hurd and Son; Hepsley C. Duckworth and Co.] Solicitor-Costs-Delivery of Bi'l-No Application to tax during

Twelve Months-Action on Bill-Application for Judgment under Order XIV.-Leave to defend.-Absence of special Circum stances-Objection to certain Items as unreasonable-Right to Taxation.

Appeal by the client from an order of Salter, J. in chambers. The plaintiffe applied for judgment under Order XV. for the amount of a bill of costs. The signed bill was delivered more than twelve months before the action was brought, and no application had been made by the defendant to tax the bill. Before the district registrar the defendant's solicitor asked for taxation of this bill. The registrar refused, and gave leave to sign final judgment for the amount claimed, being £64 18. 3d. On appeal to the judge, the defendant's affidavit alleged that the charges were unreasonable, and in particular he objected to three items. The judge dismissed the appeal. The defendant appealed. There were no special circumstances entitling the defendant to taxation under sect. 37 of the Solicitors Act 1843.

Held, that the defendant had not in fact shown reasonable grounds of objection to the items challenged, but that, if he had, that would not have entitled him to taxation of the whole bill, but the court under its general jurisdiction would have given leave to defend as to the particular items. Re Park (61 L. T. Rep. 173; 41 Ch. Div. 326) applied. Appeal dismissed. [Jones and Son v. Whitehouse. Ct. of App.: Pickford, Warrington, and Scrutton, L.JJ April 16.-Counsel: for the defendant, G. W. Powers; for the plaintiffs. J B. Matthews, K C. and C. E. Jones. Solicitors. Doyle, Devonshire, and Co., for Jones and Son, Colchester; Rawson and Stevens, for F. S. Collinge, Colchester.]

Will-Infant-Tes'amentary Power of Appointment - Will of Soldier on ac ive Service-Capacity of In ant Soldier to Exercise Power by Will-Capacity of Infant Soldier to make a WillWills Act 1837 (1 Vict. c. 26), ss 1, 2, 7, 9, 10, 11, 27—Statute of Frauds (29 Car. 2. c. 3), s 23— Wills (Soldiers and Sailors) Act 1918 (7 & 8 Geo 5, c. 58), ss. 1, 3.

A testator by his will bequeathed £1,000 000 to his trustees and declared that so long as his son was living and under twenty-six years of age the income of the fund, and so long as he was living and under thirty years, the income of one moiety thereof should form part of his residuary estate, and that after the son should attain twenty six years his trustees should pay to him the income of cne moiety thereof until he should attain the age of thirty years or previously die, and after he should attain thirty years should pay to him the whole income thereof during the remainder of his life, and that after his death his trustees should stand possessed of the fund in trust for such person or person as the son should by will or codicil appoint, and that in default of and subject to such appointment the fund should form part of his residuary estate. The sun while an infant, and an officer in te army on active ervic, made his will, and thereby, after giving legacies to a large amount,

he devised and bequeathed all his real and personal estate of or to which he should be seised, possessed, or entitled or over which he should have a general power of appointment, to certain persons. The son was killed in action while still

an infant, and his will was admitted to probate as a soldier's will under sect. 11 of the Wills Act 1837. His estate was very small apart from the appointed fund. The question arose whether an infant could by a soldier's will exercise a general testamentary power of appointment. It was decided by Younger, J. (117 L. T. Rep 801) that the testator's son could exercise the testamentary powers of appointment before he attained twenty-six years of age, although he had no beneficial interest in the fund until that time. His Lordship decided also that, although it was doubtful whether the practice of the Probate Division to admit to probate the wills of infant soldiers was in accordance with the Wills Act 1837, yet, so long as the probate stood, an infant who was capable of making a will of personalty was capable of exercising a general testamentary power of appointment thereby. On appeal:

Held, that no "contrary intention" within the meaning of sect. 27 of the Wills Act 1837 appeared in the will of the son, but a clear intention of exercising every general power of appointment which he possessed; that the power conferred upon him by the will of his father to appoint by will or codicil was thereby conferred upon him whenever he should be of testamentary capacity to make a will or codicil; that a power to appoint by will might be validly exercised by an infant if an infant could make a valid will; that that right was preserved to infant soldiers by the combined effect of sects. 11 and 27 of the Wills Act 1837; and that, having regard to the provisions of sect 3 of the Wills (Soldiers and Sailors) Act 1918, it would be strange if an infant soldier could not validly appoint personal estate over which he had a general power of appointment. Appeal dismissed.

[Re Wernher; Wernher v. Beit. Ct. of App.: Swinfen Eady and Bankes, L.JJ. and Neville, J. April 19, 22, and 24– Counsel: Maugham, K.C. and J. W. F. Galbraith; Micklem, K.C. and J. E. Harman; Mathew, K C. and J. W. M. Holmes. Solicitors: Holmes, Son, and Potts; Robert Harradine; Charles Russell and Co.]

In

A debtor was made bankrupt in 1894, and in April 1913, while still an undischarged bankrupt, the plaintiff obtained a judgment against him, and in June 1913, on an application under sect 14 of the Judgments Act 1838, obtained a charging order for the amount of the judgment on shares in the defendant company standing in the name of the debtor. Feb. 1916 the trustee in the bankruptcy became aware that the debtor was the holder of these shares and sold them subject to all roper charges, the purchaser and the defendants to whom he sold the shares, knowing of the bankruptcy and the charging order. The debtor never obtained his discharge and recently died. By sect. 49 of the Bankruptcy Act 1883 it was provided that nothing in that Act should invalidate in the case of a bankruptcy" (d) any contract, dealing, or transaction by or with the bankrupt for valuable consideration." By a proviso to sect. 14 of the Judgments Act 1838 the effect of a charging order under that section entitled the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the judgment debtor. The plaintiff, the judgment creditor, took out this summons claiming to be entitled to an account and realisation of the shares by virtue of the charging order obtained by him, and alleged that his title was valid against the trustee in bankruptcy on the ground that the charging order was a transaction for valuable consideration.

Held, that, having regard to the proviso in sect. 14 of the Judgments Acts 1838, the charging order obtained on application under that section was valid as against the trustee in bankruptcy, as it must be inferred that such charge was made for value, and therefore this was a transaction for value within the meaning of the proposition laid don in Cohen v. Mitchell (63 L T. Rep 206; (1890) 25 Q. B Div 262, consequently the plaintiff was entitled to the account claimed.

[Hosack Robins (No. 2) Ch Div.: Astbury, J. April 25. -Counsel: M J. L. Beebee and Harold S. Simmonds; P. Whee er; Charles Gordon. Solicitors: Clowes, Hickley, and Steward; Sutton, Ommaney, and Rendall]

KING'S BENCH DIVISION.

Conversion and Detinue-Goods the Subje t of a Hire-purchase Agreement-Sale by Hirer to third Person before all Instalments paid-Third Person taking bonâ fide and without NoticeLiability in Detinue.

W. and Co. let to N. a piano under a hire-purchase agree ment by which the property did not pass until all instalments were paid. N. paid the instalments regularly, but, before they were all paid, she sold the piano to H., who purchased for value and without notice of the hiring agreement. W. and Co. were not apprised of the sale. In an action for detinue or, in the alternative, for damages for conversion brought against her by W. and Co., H. paid into court the amount outstanding at the date of the sale to her. The County Court judge, holding that that was the true measure of damages, gave judgment for that sum. W. and Co, who claimed that they were entitled to the return of the piano or its full value, appealed.

Held, that in the circumstances the respondent only had such title to the piano as her vendor had; that, inasmuch as the sale constituted a repudiation or annihilation of the hirepurchase agreement and all its terms, the vendor had no right of any kind in the piano; and that the owners of the piano were entitled to the return of the piano or damages, such damages being the price mentioned in the agreement, plus something nominal for its detention.

[White ey and Co. v. Hilt. K. B. Div.: Salter and Roche, JJ. April 23 and 24.-Counsel: Schwabe, K.C. and Wetton; S. H. Leonard and Sproule. Solicitors: H. E Tudor; Peachey and Co.]

Defence of the Realm-Coal Control-Maximum Prices-Selling at higher Price-Authority to prosecute-Local Autho itis (Retail Coal Prices) Order 1917, art. 2. — Retail Coal Prices Order 1917, arts. 10. 16, 17, 19.

A local authority fixed retail maximum prices for the sale of coal under the powers conferred on them by the Retail Coal Prices Order 1917, and the appellant sold Icwt. of coal to a person in the district at a price alleged to exceed the maximum. Thereupon the respondent, an inspector appointed by the local authority, preferred an information against the appellant for se ling the coal at a price exceeding the maximum. The respondent had not obtained the permission of the Coal Controller for the institution of the proceeding. The justices held that the authority of the Coal Controller was not a condition precedent to the prosecution, a d they convicted the appellant. By rege. 23 and 2JJ of the Defence of the Realm Regulations the Local Government Board may confer and impose on local authorities and their officers any powers and duties necessary for the discharge of any functions assigned to them by the Board of Trade under the regulations. By the Retail Coal Prices Order 1917 the Board of Trade by art. 10 directed local authorities to publish lists of maximum prices, and by art. 16 provided that no pers n should sell at a higher price, and by art. 17 that a contravent on of the order should be an offence Art. 19 provided that the Controller of Coal Mines should be responsible to, and was thereby authorised by, the Board of Trade to take all measures needed to give effect to the order. By art. 2 of the Local Authorities (Retail Coal Prices) Order 1917 the Local Government Board conferred and imposed upon the local authority and their officers the powers and duties necessary to provide for the due discharge of the functions assigned to them by the Retail Coal Prices Order 1917.

Held, that, although the above orders had not expressly authorised local authorities and their officers to institute proceedings, yet the power to prosecute must be taken to have been thereby conferred upon them, as su h power was a power" necessary to provide for the due discharge of the functions assigned to them," and therefore the conviction must be affirmed.

[Parry v. Puddicombe. K. B. Div.: Darling, Avory, and Shearman, JJ. April 25 and 26.—Counsel: Lincoln Reed; H. J. Wallington. Solicitors: Brlow, Barlow, and Lyde, for J. Evan Rowl nds Swansea; J. T. Lewis and Woods, for C. W. Slater, Swansea.]

Defence of the Realm-Food Control-Hording-Tea - Whether an Article of Food-Foot Hoarding Order 1917, art. 5.

On the 28th Jan 1918, 1221b. 4oz. of tea were found in the dwelling-house of the appellant, and an information was preferred against her under the Defence of the Realm Regulations for contravening the Food Hoarding Order 1917 by acquiring a quantity of tea exceeding the quantity required for ordinary use and consumption in her household. The justices held that tea was food within the meaning of the order, and they convicted the appellant. By art. 5 of the Food Hoarding Order 1917: "For the purpose of this order the expression 'article of food' shall include every article which is used for food by man