Lord Fitzhardinge v. Purcell (99 L. T. Rep. 154; (1908) 2 Ch. 139). One of the leading cases on the subject is Gann v. Free Fishers of Whitstable (12 L. T. Rep 150; 11 H. L. C. 192); and the reader may also be referred to the cases of Duke of Beaufort v. Swansea Corporation (1849, 3 Ex. 413) and Truro Corporation v. Rowe (87 L. T. Rep. 386; (1902) 2 K. B. 709). This, on the whole, is a very strong presumption, and, although there would appear to be considerable ground for questioning the soundness of the doctrine of the Crown's ownership, at any rate from a historical point of viewwhich, after all, is about the surest of all tests of titles-the doctrine is far too strongly established now to be ever disputed. So strong indeed is this presumption of the Crown's ownership of lands covered by tidal waters that a very clear case indeed must be made if a subject is to establish a title by any other means than by the production of the Crown's grant. Restrictions on such grants have so long existed that any Crown grant must now be a document of considerable antiquity if it be indeed capable of being produced. It is believed that these grants are usually in the form of confirmations of previous grants. However that may be, although it has often been recognised that a subject may establish his ownership of the foreshore, it is a matter of very considerable difficulty for the ordinary private owner to set up a title by what we may call prescription, although the word cannot in strictness be used in this connection.

The point that we seek to make at this juncture is that lands covered by tidal waters are not apt subjects for the application of the doctrine of the presumption of ownership to the middle line. The middle-line theory of ownership as applied to lands covered by water would necessarily only have place where those waters lie between adjacent lands-in other words, in narrow tidal estuaries. But the presumption of Crown ownership of lands covered by tida] waters extends to and includes tidal estuaries: (see Lord Fitzhardinge v. Purcell, sup.). Rarely indeed, if ever, is land covered by tidal waters freely dealt with by subjects. It is usually in the hands of some great landowner, whose family-predecessors have held the lands adjoining for centuries, that the foreshore is found to be Wherefore it would be a highly unlikely presumption that the owner of land on one side of a tidal estuary owned the bed of the estuary ad medium filum.

The question whether the doctrine of the presumption of ownership to the middle line applies to the case of a large inland lake has been considered by the courts, but apparently not definitely decided. This much seems clear, that the presumption of the Crown's ownership does not apply to the soil of large inland lakes. This was decided, if not for the first time, at any rate, in the case of Johnston v. O'Neill (105 L. T. Rep. 587; (1911) A. C. 552). The question of the respective rights of the public on the one hand and of private riparian owners] on the other, as regards the large English lakes, was considered at length in the case of Marshall v. Ulleswater Steam Navigation Company (3 B. & S. 732). In the Scottish case of Mackenzie v. Bankes (3 App. Cas. 1324) Lord Selborne, the then Lord Chancellor, in dealing with the question of presumed ownership as, at any rate, pertaining to Scottish inland lochs, said: "So far as relates to the solum or fundus of the lake, it is considered to belong in severalty to the several riparian proprietors, if more than one; the space inclosed by lines drawn from the boundaries of each property usque ad medium filum aquae being deemed appurtenant to the land of that proprietor, exactly as in the common case of a river." This remark, however, appears to be hardly a satisfactory guide for determining the ownership of the soil of lakes and lochs. The shores of a lake or loch are usually very irregular. The whole area of the water may be shaped in such a way as to make it wholly impossible to apply the principle of ownership usque ad medium filum aquae. Let the reader draw an imaginary lake of irregular limits, and divide off this line into as many divisions as he pleases. Then let him try to apply the principle just mentioned, and he will appreciate our point. Are the lines to the centre to be continued in the same direction as the line which the boundary on the land takes? If so, a very arbitrary partition of the soil of the bed of the lake would result. If the boundary, which follows a straight line for half a mile or so, just before reaching the water's edge-say, 5ft. from the water-makes a sudden turn to one side and so reaches the water nearly at right angles to the general direction of the line which it has been following, is the under water Third Sheet.

boundary to be continued along the direction of the last 5 ft., or along the direction of the half-mile? Or possibly it might be logical to fix the under-water boundary by reference to the general direction of the shore line, and set it at right angles to the latter direction. But then the general direction of the shore line is a very uncertain quantity. In truth it is all but impossible to apply the doctrine of ownership ad medium filum to the case of inland lakes.

With inland rivers or streams the case is different. Here the presumption, very similar to that of the highway ownership, applies. But, even in this case, if the river or the stream is subject to the right generally called a several fishery, the presumption is displaced, because, by some line of reasoning which seems very far from perfect, the ownership of a several fishery is deemed to carry with it the ownership of the bed of the river or stream.

Before closing, we ought to point out that there are authorities which suggest that the ground for the presumption of ownership ad melium filum has been attributed to the presumed origin of highways, which is certainly not applicable to the case of rivers and streams. According to these authorities-Doe v. Pearsey (7 B. & C. 304) and Holmes v. Bellingham (7 C. B. N. S. 329)-the highway is to be presumed to have been made by each of the adjoining owners dedicating one half of the strip required. This was apparently Mr. Justice Littledale's view of the origin, but, with the utmost respect to that very learned and careful judge, we prefer our own explanation. If it could be shown that the highway was in fact made or dedicated by the two owners, then no doubt it would be reasonable to suppose that they subjected themselves in equal degree to the burden of the highway. But to find that two owners made or dedicated the highway would leave no room for presumption. It would reduce the matter to a certainty. And that begs the question.

COMMENTS ON CASES.

Company Manager's Remuneration after Deduction of Excess Profits Duty.

THE singular want of unanimity in the opinions that have been expressed by divers learned judges when dealing with the extremely dubious question which was argued before Mr. Justice Younger in the recent case of Patent Castings Syndicate Limited v. Etherington (ante, p. 368) indicates the desirability that the Court of Appeal should be afforded the opportunity of determining it definitely. Mr. Justice Eve, Mr. Justice Rowlatt, and Mr. Justice Neville respectively in Williams, Hollins, and Co. Limited v. Paget (116 L. T. Rep. 9; (1917) 1 Ch. 187), Thomas v. Hamlyn and Co. (116 L. T. Rep. 475; (1917) 1 K. B. 527), and S. J. and E. Fellows Limited v. Corker (117 L. T. Rep. 693; (1918) 1 Ch. 9) have all decided the question one way. On the other hand, Mr. Justice Peterson in Collins v. Sedgwick (115 L. T. Rep. 763; (1917) 1 Ch. 179) and likewise in Re Condran; Condran v. Stark (117 L. T. Rep. 270; (1917) 1 Ch. 639) took a diametri. cally opposite view. But that view was preferred by Mr. Justice Youuger in the case to which we are now referring. The question is whether the commission payable to the manager of a company out of its "net profits" ought to be calculated before or after the deduction of excess profits duty" payable by a company under the Finance (No. 2) Act 1915 (5 & 6 Geo. 5, c. 89). Following a method which is quite customary, the remuneration of the manager of the company in the present case was, in addition to a fixed annual salary, to be a commission by way of a percentage upon the "net profits" of the company's business for each year. There was a provision that the certificate of the company's auditor should be conclusive as to what constituted "net profits" at the end of any such business year. Mr. Justice Younger in a considered judgment, following Mr. Justice Peterson, as we have already intimated, and differing from the other learned judges who have had to go into the question, held that the manager's commission ought to be calculated after deduction of excess profits duty. It would have been, of course, to the advantage of the manager that the excess profits duty should not be deducted before determining the amount of the net profits, seeing that his percentage thereon would thereby be augmented. But that was not how Mr. Justice Younger thought that the case should be determined. The way in which Mr. Justice Peterson regarded the question was, Mr. Justice Younger came to the conclusion, the right one. It is noteworthy that Mr. Justice Neville, when the question was under his consideration, was of opinion that the right principle governing the matter was obtainable from what was laid down in Attorney-General v. Ashton Gas Company (90 L. T. Rep. 204; (1904) 2 Ch. 621).

Before excess profits duty can be computed it is an indisputable fact that the net profits must be ascertained. All the same, Mr. Justice Peterson was by no means without excellent reasons for the opinion that he entertained. In his view, excess profits duty is a debt due to the Crown, the amount being ascertained with reference to the amount by which the profits exceed the pre-war standard. If that be so, to treat excess profits duty as an outgoing of the business does not seem to be an erroneous course. Such was Mr. Justice Peterson's acceptance of the true aspect of the question, adopted, as we have before mentioned, by Mr. Justice Younger in the present case. But with three learned judges taking one view and two another directly contrary, nothing can be treated as finally settled until the Court of Appeal has had the question brought before them. And because of its frequent occurrence it is most essential that that should take place in the near future.

Public Authority as "Hypothetical Tenant."

THE actual question submitted to the Court of Appeal in Port of London Authority v. Assessment Committee of . Orsett Union (noted ante, p. 311) was whether quarter sessions were right in holding that they were precluded by law from making any allowance for tenant's profits in the rating of the appellants, who are a statutory body precluded by law from making a commercial profit in the ordinary sense, in respect of certain docks forming part of their undertaking. The arguments for the appellants, put very shortly, were that the docks had no higher rateable value than when in the hands of their commercial predecessors; it was immaterial to consider how a tenant would apply his income; and, in considering what a hypothetical tenant would pay, a commercial tenant should be included. The respondents contended that the case was covered by Mersey Docks v. Liverpool (29 L. T. Rep. 454; L. Rep. 9 Q. B. 84), and that it was impossible to exclude from consideration the fact that the occupation could not produce a tenant's profit to anybody. To the Court of Appeal both these contentions appeared to be wrong, for it was impossible to say that as a * matter of law the allowance for tenant's profits must, or must not, be made in every case where the net annual value is to be ascertained by a consideration of receipts and expenses. The answer to the question submitted was therefore in the negative, but required amplification. "For rating purposes," said Lord Justice Bankes, "the property must be taken as it stands, with all its advantages and all its fetters or disabilities. The net annual value must be estimated from the point of view that the hypothetical tenant must be found from among the class of persons to which the statutory owner belongs." There was no reason, in his Lordship's opinion, why quarter sessions should eliminate altogether tenant's profits from their consideration. If in any particular case they were of opinion it would be of assistance to consider what rent a commercial tenant would pay, they were entitled to do so; but the only question of law was the character of the property, and it could not be right as a matter of law to deduct tenant's profits from the estimated income to arrive at the rateable value. The effect of this decision is therefore on the whole very much against a statutory authority carrying on an undertaking and precluded from making a profit. Quarter sessions may say in any particular case a commercial tenant would pay a rent of x pounds. A statutory authority would pay y pounds more or they would pay no more," or they may say "it is quite immaterial what a commercial tenant would pay.' In either case they must estimate the net annual value from the point of view that the hypothetical tenant must be found from among the class of persons to which the statutory owner belongs— persons who carry on undertakings of a public nature of the class of that carried on by the statutory owner. The practical effect of the case is that the statutory owner is in a worse position for rating purposes than the hypothetical tenant out for a commercial profit.

66

Incitement to Murder an Unborn Child.

WHETHER a man who incited a pregnant woman to murder her child, when it should be born, was guilty of an offence under sect. 4 of the Offences against the Person Act 1861 was the question which Mr. Justice Darling was called upon to decide in the case of Rex v. Shephard at the Central Criminal Court last week. It is provided by the section that whoever endeavours to persuade any person to murder any other person is guilty of a misdemeanour. The contention on behalf of the prisoner was that regard must be had to the state of things at the time of the incitement, and, as at that time all that was in existence was a foetus, the object of the incitement was not a person" within the meaning of the Act. The prisoner therefore had not com mitted an offence under the Act. The learned judge ruled against this contention. "The offence," he said, “is inciting or proposing to destroy a person, and if afterwards a person comes into existence, to whom that incitement would naturally apply,

then it is no answer to say that at the time the incitement was made the person did not exist." Of course if the child had been stillborn there would have been no offence. The ruling of the learned judge is supported by the case of The George and Richard (24 L T. Rep. 717), where Sir R. Phillimore held that a child en ventre sa mère was entitled to recover, under Lord Campbell's Act, on the death of its father by negligence. It was argued that as the right of action was given only in respect of pecuniary loss to the survivor or executor of the deceased, the actual existence of a claimant was a condition precedent to a claim. This argument was rejected by the learned judge, who, however, directed that no reference on the subject could be made until the child was born. This is an authority for the proposition which Mr. Justice Darling laid down, that when the child was born an offence under the statute was committed. But, quite apart from the statute, it is at common law an offence to incite any person to commit a crime, even though no crime is in fact committed. There is, however, this distinction between the statutory and commou law offence. In order to warrant a conviction under the statute, it must be proved that the incitement actually reached the person alleged to have been incited, whereas to justify a conviction of the common law misdemeanour of incitement it is sufficient to prove that the accused attempted to incite, even though the incitement never reached the person whom it was intended to reach : (Rex v. Krause, 18 Times L. Rep. 238). Moreover, the publication and circulation of a newspaper article, although not addressed to any particular person, has been held to be an endeavour to persuade to murder within sect. 4 of the statute (Reg. v. Most, 44 L. T. Rep. 823; 7 Q. B. Div. 244).

:

Street Accidents due to Restricted Lighting.

THE recent case of Baldock v. Westminster City Council (noted ante, p. 143) is similar to Morrison v. Sheffield Corporation (117 L. T. Rep. 520; (1917) 2 K. B. 866). In both cases accidents were due directly or indirectly to diminished light rendered necessary by air raids. In the one case a driver drove his taxicab into a temporarily unligbted street refuge, and in the other a man put his eye out by walking into a tree guard, and in bo h cases the plaintiff was successful in his action. Where a member of the public has through no fault of his own suffered by an accident in the streets, the sympathy of the jury is generally on his side, and they are seldom backward in finding some negli gent act or omission on the part of the public authority, perhaps induced thereto by the consideration that the result of the claim is a matter of much pecuniary consequence to the plaintiff, but of relatively little consequence to the defendants. When once, however, a verdict has been found for the plaintiff, it is exceed. ingly difficult to set it aside, for, provided there is evidence of negligence, a court of appeal will not set the verdict aside, though they themselves, if sitting as a jury, would have come to a different conclusion. Thus in Baldock's case Lord Justice Scrutton remarked that, speaking from recollection, he did not think any member of the Court of Appeal would in the Morrison case have arrived at the same conclusion as the jury. But, for all that, the court were unable to set the verdict aside. Such cases as the above are of very little legal value, for they generally turn entirely on their own particular facts, and merely show that a local authority will get hit if it is reasonably possible to hit them.

THE CONVEYANCER.

Reversion Duty.

MANY cases in which the amount of reversion duty is in dispute have been waiting, we believe, for a decision of the Court of Appeal on the vexed question whether "payments made" by the lessee "in consideration of the lease (Finance (1909-10) Act 1910, s. 13 (2) are to be deemed to mean the actual amount paid or the value of the payments when the lease is surrendered or determined. Lord Parmoor in Inland Revenue Commissioners v. Marquess Camden (111 L. T. Rep. 1033; (1915) A. C. 241) said: "The subject-matter of the section is a duty based on the total value of land, and no element could more directly affect this value than expenditure made on the land in consideration of the grant of the lease. If the lessee was desirous of assigning his interest in the land immediately after the grant of the lease to him, without loss, he would require the assignee to repay to him the amount he had expended and to take over the liability of the payment of the rent reserved or pay its capitalised value. In other words, the total value of the land at that date would be the capitalised rent together with payments made in consideration of the lease." His Lordship also expressed his opinion that subsequent events could not in any way affect the total value of the land as ascertained at the time of the grant of the original lease. Lord Atkinson did not think

that the money expended could be treated in the same manner as a premium paid to the landlord, but that "the value of the buildings subject to the lessee's rights" should be taken into account. No decision on that point was given in the Camden case. The question, however, was sure to require decision before very long, and in Ecclesiastical Commissioners of England v. Inland Revenue Commissioners (117 L. T. Rep. 253; (1918) 2 K. B. 602) it was definitely raised. The commissioners, the referee, and Mr Justice Lush all agreed with Lord Atkinson's view. That learned judge said: If the appellants are right, reversion duty becomes a matter of trifling importance. It was imposed, according to the appellanta' contention, in order to meet the case of property having by adventitious circumstances risen in value since a lease was granted, and that, in substance, is all that was contemplated. In my view that is an entire mistake. I think that it was also intended, if not primarily intended, to meet the not uncommon case of the owner of land parting with the land and the usufruct of the land for a defined period, taking a comparatively small sum by way of rent during that period with the view to securing at the end of that period a property which has been greatly enhanced in value by reason of the expenditure of money by the lessee. The principle contended for by the appellants takes no account of this benefit and leaves it untaxed. Mr Ryde said that we have only to ascertain what the two valuations are which are provided for by sect. 13, subsect. 2. I do not agree with this." The Ecclesiastical Commissioners appealed, and have obtained a reversal of Mr Justice Lush's deci sion (noted ante, p. 367). This decision may make the duty of "trifling importance," but appears to be in accordance with the words of the sub-section, under which "the value of the benefit accruing to the lessor shall be deemed to be the amount (if any) by which the total value at the time the lease determines

exceeds the total value of the land at the time of the original grant of the lease." It is difficult to see how the total value of the land at the time of the grant of the lease can be affected by any subsequent depreciation. The total value at the time of the grant must have been of a certain amount, and it is that amount which has to be deducted from the present total value.

Annuities and Income Tax.

THERE must have been many instances, in the days when income tax was of a trifling amount, of trustees paying annuities in full without deducting the tax. Now that it has reached 68. in the pound people are waking up to the fact that the trustees are liable for having done so. Such was the case in Re Hatch (noted ante, p. 367), where a husband had covenanted by deed to pay an annuity to his wife. During his life he paid this without any deduction for income tax, and the trustees of his will very naturally continued this practice after his death. The testator by his will gave all his residue to the trustees upon trust for conversion and to hold the proceedsin trust for his four sons. One of the sons left his property to his mother and died after the testator. The testator's estate was being administered by the court, and the trustees sought to deduct from future payments of the annuity, and from any other sums payable to the widow out of her derivative share in the testator's estate, what they should have deducted for income tax. In Re Musgrave (115 L. T. Rep. 149; (1916) 2 Ch. 416) Mr. Justice Neville said: "Since I have known anything of the courts of equity, it has been, in my opinion, the practice of the court when administering the estate of a deceased person in cases where the trustees have, under an honest mistake, overpaid one beneficiary, in the adjustment of the accounts, so to speak, between the trustees and the cestuis que trust, to make allowance for the mistake, and to hold that the trustee may, so far as possible, be recouped the money which he has so unadvisedly paid," and the learned judge held that the trustees were entitled to deduct from future payments the income tax which they had overpaid. Mr. Justice Joyce in Re Ainsworth (113 L. T. Rep. 368; (1915) 2 Ch. 96) allowed a mistake in payment of legacy duty, which had been paid out of the corpus instead of the income of a trust legacy in a case where the legacy was settled on successive persons who were liable to pay duty at different rates, to be rectified in the future payments of the income. In Re Hatch, however, Mr. Justice Sargant was less indulgent. He held that the overpayments had been made under a mistake of law, and so refused to permit the trustees to make things straight on future payments. In this case he followed Re Barry's Trusts (94 L. T. Rep. 537; (1906) 1 Ch. 678) and Warren v. Warren (72 L T. Rep. 628). In the former case, however, it was a question whether a husband might deduct the income tax from an annuity which he had covenanted to pay in the place of alimony, so that the question of rectification did not arise. But in Warren v. Warren Mr. Justice Kekewich said that "there can be no reasonable doubt that a trustee cannot, because he has made a mistake in payment of an annuity, deduct what might have been deducted before. There is no liability on the part of the lady to pay the trustees

what they ought to have deducted." We should welcome an authoritative decision of the Court of Appeal on these apparently conflicting decisions.

Next of Kin-Period for Ascertaining the Class.

THE recent decision of the Court of Appeal (affirming the decision of Mr. Justice P. O. Lawrence in Re Hutchinson; Carter v. Hutchinson), a short report of which will be found ante, p. 352, confirms the rule that under a gift by will to the heirs or next of kin of a person the class is to be ascertained at the death of the testator; and that mere words of futurity will not alter the general rule: (see Holloway v. Holloway, 5 Ves. 399, and other cases cited in Theobald on Wills, 7th edit., p. 242). But if the gift is after the death of the tenant for life" to such persons as shall then be my heirs or next of kin " the class is to be ascertained at the death of the tenant for life: (see the well-known case of Long v. Blackall, 3 Ves. 486). The word " then," however, will not necessarily postpone the period for ascertaining the class. The two leading decisions on this point are Bullock v. Downes (9 H. L. C. 1) and Mortimore v. Mortimore (4 App. Cas. 448). The latter case followed Bullock v. Downes, and, as remarked by Earl Cairns, L.C., in the course of his judgment in Mortimore v. Mortimore, you seldom find, with regard to wills, two cases so much resembling each other. In that case a testator, who had four daughters, divided a fund into four equal amounts, and gave one to each daughter and her children, but when one died, and left no child, the interest was to be paid to the others, and after the death of the last survivor the fund was to be divided among her children, or, if there should be no such children, "the same to be paid to such person or persons as will then be entitled to receive the same as my next of kin under the statute for the distribution of intestates' estates." On One of the daughters left issue, and the others had no issue. the death of the last daughter it was held that the class of "next of kin" meant the persons who filled that character at the time of the death of the testator, and not at the death of the last surviving daughter. It is not a mere question of reading the word "then as an adverb of time. This appears from the following words in the aforesaid judgment of Earl Cairns : "Now, I am quite willing to look at the word 'then' as if it meant at the expiration of the preceding limitation, but then what does this amount to? Why, this: At the expiration of the preceding limitation you are to find out the hands into which you are to pay the money, but you must do that by first ascertaining who were his next of kin at the time of his death." In Re Hutchinson the ultimate gift was in the following terms: "I do further direct that on failure of all the trusts herein before declared of the residue of my personal estate, such residue shall be in trust for such person or persons as on the failure of such trusts shall be my next of kin and entitled to my personal estate under the statute for the distribution of the personal estate of intestates, such persons, if more than one, to take distributively according to the said statutes." And it was held that the next of kin must be ascertained at the date of the death of the testator. The words 66 on the failure of such trusts " in that case do not seem to be so strong as the word "then." As observed by Cozens-Hardy, M.R. (as he then was) in the case of Re Wilson; Wilson v. Batchelor (97 L. T. Rep. 656; (1907) 2 Ch. 572): "No doubt a testator may fix an artificial class of next of kin and give to that class, as persons who would be next of kin if he had died at a date different from that at which he did die. That is analogous to the familiar form in marriage settlements, where a wife's fortune was given, in the event of there being no child or issue of the marriage who attain a vested interest, to what may be called an artificial class of persons, namely, to such persons as would be her statutory next of kin as if she had died possessed of the fund, intestate and without having been married, and then you will get a different class; you treat the wife as a person who had never been married, and you get a hypothetical class of next of kin, and I do not doubt that you might have the same provision in a will." A form of clause for the purpose will be found in Key and Elphinstone's Precedents, 10th edit., vol. 2, p. 905, where the ultimate trust for a testator's next of kin is for the persons "who would at the time of the failure or determination of all the prior trusts herein before declared have been entitled to my personal estate under the statutes for the distribution of the personal estate of intestates, if I had died at the time of such failure or determination, intestate, such persons, if more than one, to take as tenants in common in the shares in which they would have taken under the same statutes."

Landlord and Tenant-Property Tax.

PRACTITIONERS intrusted with the collection of rents will bear in mind the decision of the Court of Appeal in the recent case of North London and General Property Company Limited v. Moy Limited (119 L. T. Rep. 230; (1918) 2 K. B. 439), in which

it was decided that a landlord was bound to allow by way of deduction from rent due from the tenant a payment of property tax made by the tenant to the Inland Revenue authorities, notwithstanding that the tenant refuses to show the landlord or his agent the collector's receipt for payment of the tax. As intimated by the Court of Appeal, it is a most unreasonable attitude to assume, but it is in accordance with the law. As a matter of practice, it is believed that, until the income tax became payable half-yearly, many tenants used to pay the income tax once a year, and then forward the receipt to the landlord as representing a quarter's rent'; but under the new arrangement no doubt the tax will be deducted half-yearly, as soon as it has been paid.

NOTES OF RECENT DECISIONS NOT YET REPORTED.

BY OUR REPORTERS IN THE SEVERAL COURTS.

HOUSE OF LORDS.

Industrial and Provident Society-Rules-Dispute between Society and Members-Amended Rules alleged to be ultra viresRestraint of Trade-Prohibition of Competition-Industrial and Provident Societies Act 1893 (56 & 57 Vict. c. 39).

In 1903 the appellant, a dairy farmer in Ireland, became a member of the respondent society, one of the rules of which prohibited the sale of milk to any creamery other than the respondents' creamery, without the consent of the committee in writing, under the penalty of forfeiture of shares, together with all money credited thereon. In Nov. 1915 notices were sent out on behalf of the society to its members of a special general meeting (inter alia) to amend the rules of 1903 and to adopt certain new rules. The rule as to the sale of milk was altered in such a way as to increase the restraint of trade, the language of the rule being identical with that of the rule the validity of which was established in Coolmoyne and Fethard Co-operative Creamery Limited v. Bulfin (1917, 2 Ir. Rep. 107). The appellant objected to the alteration, and in the action claimed a declaration that the rule was not binding on him and the other members of the society as being (1) improperly adopted to the prejudice of the plaintiff and other members; (2) illegal as in unreasonable restraint of trade; and (3) ultra vires the respondent society. The Court of Appeal (reversing the decision of Barton, J) were of opinion that the rule was binding on the members of the society, and treated the decision in the Coolmoyne case (sup.) as covering the present case. After consideration:

The House (Lord Parmoor dissenting) allowed the appeal. [McEllistram v. Ballymacelligott Co-operative Agricultural and Dairy Society Limited. H. of L.: The Lord Chancellor (Lord Birkenhead), Lords Finlay, Atkinson, Shaw, and Parmoor. Feb. 12, 13, 14. 17, and March 24.-Counsel: for the appellant, Serjeant Sullivan, KC., S. L. Brown, K.C., and Clery; for the respondents, Conner, K,C., Carrigan, K.C., and Denis B. Sullivan. Solicitors: E. H. Coopman, for E. B. Slattery, Dublin; J. H. MacDonnell, for J. D. O'Connel, Dublin]

COURT OF APPEAL.

Accountant- Member excluded from Institute of Chartered Accountants-Statements in headed Letter Paper and other Documents-Holding himself out therein as still a Member— Injunction.

An action was brought by the plaintiffs against the defendant claiming an injunction to restrain him from continuing to use headed letter paper and other documents in his business as an accountant containing the words Honours Final, Institute of Chartered Accountants," together with the words Accountant and Auditor," or otherwise in such a way as to lead to the belief that he was a member or otherwise connected with the plaintiffs' institute. It appeared that in 1900 the defendant had duly qualified in the manner indicated, but that in June 1909 he had been adjudicated bankrupt, and in the following month he was excluded from membership of the Institute of Chartered Accountants under the provisions of their Royal Charter that if any person while a member of the institute was adjudicated bankrupt, he might either be excluded from membership or suspended for two years, according to the decision of a meeting of the members of the institute. The use of the words complained of by the plaintiffs was not denied by the defendant, but his contention was that the same did not convey the impression which was alleged by the plaintiffs, and added that in his bills he had struck out the word chartered' ever since his exclusion from membership. It was decided by Eve, J. that,

although the defendant was entitled to such benefit as might accrue to his practice from having obtained honours in the final examination of the plaintiffs' institute and was at liberty to state that fact, yet the plaintiffs were entitled to restrain the defendant from using the present form of communicating his attainments to his clients; and that therefore the plaintiffs were entitled to an injunction to restrain the defendant against such user of the words complained of as to lead to the belief that he was still a member of or otherwise connected with the plaintiffs' institute. The defendant appealed and appeared in person.

Held, that the conclusion arrived at by Eve, J. on the evidence, that the form used by the defendant was calculated to deceive and to lead persons to the belief that he was still a member of the plaintiffs' institute, was right. Appeal dismissed.

[Institute of Chartered Accountants v. Hardwick. Ct. of App. : Swinfen Eady, M.R. and Warrington and Scrutton, LJJ. March 24.-Counsel: for the respondents, Maugham, K.C. and Whinney. Solicitors: for the respondents, Markby, Stewart, and Co.]

Action-Cause of-Words spoken to Plaintiff calculated to cause physical Injury-Nervous Shock-Remoteness of Damage.

Appeal by the defendants from a judgment of Avory, J. on the further consideration of an action with a jury. According to the plaintiff's evidence, the defendant B. called upon her and said: "I am a detective inspector from Scotland Yard and represent the military authorities, and you are the woman we want, as you have been corresponding with a German spy.' The jury found that B. did say this to the plaintiff; that the was acting within the scope of his authority as agent of the defendant S. in making the statement; that the statement was calculated to cause physical injury; that it was made with knowledge that it was calculated to cause physical injury, though not maliciously made; and that a subsequent illness of the plaintiff was caused by the statement. The jury awarded 2501. damages. Avory, J., following Wright, J. in Wilkinson v. Downton (76 L. 1. Rep. 493; (1897) 2 Q. B. 57), directed judgment to be entered for the plaintiff on the findings of the jury. Both defendants appealed on the ground (inter alia) that an action was not maintainable for physical shock resulting from spoken words.

Held, that Wilkinson v. Downton (sup.), where a woman recovered damages for nervous shock caused by words spoken to her by way of a practical joke, was good law, and the judgment of Avory, J. was right. Allsop v. Allsop (1860, 2 L. T. Rep. 290; 5 H. & N. 534), which was an action arising out of slanders uttered to third parties, was distinguishable. Appeal dismissed.

[Janvier v. Sweeney and Barker. Ct. of App.: Bankes and Duke, L.JJ. and A. T. Lawrence, J. March 25.-Counsel: for the defendant Sweeney, Cecil Hayes; for the defendant Barker, Tu rell; for the plaintiff, Lewis Thomas, K.C. and Jowitt. Solicitors: L O. Glenister; R. J. Preston.] Charter-party-Bill of Lading -Freight-Option to name Port of Discharge-Restraint of Princes-Naming impossible Port.

Under a charter-party of the 24th June 1915 & ship was to proceed to Queenstown, Falmouth, or Plymouth for orders, to discharge at certain ports, including Aalborg in Denmark, separate rates of freight being fixed for the United Kingdom and for Denmark. The charterparty contained the usual provisions as to demurrage and an exceptions clause, including restraint of princes. A bill of lading of the 16th Jan. 1916 described the ship as bound for Queenstown, Falmouth, or Plymouth for orders, payment of freight and all other conditions as per charterparty. The ship arrived at Falmouth on the 7th May 1916, and on the 10th the defendants, the indorsees of the bill of lading, gave her o ders to proceed to Aalborg. They had not then obtained, and failed to obtain, within a reasonable time the permission of the British Government, and the ship was therefore unable to proceed to Aalborg. No other orders were given, and ultimately the cargo was discharged at Plymouth into warehouse subject to lien for freight. The defendants contended that, having selected one of the named ports, that port became the port of discharge as if named 'as such in the bill of lading; that the venture was frustrated by restraint of princes and neither party could recover against the other. Bailhache, J. held, on the authority of Ogden v. Graham (1861, 5 L T. Rep. 396) and Tharsis Sulphur Limited v. Morel (65 L. T. Rep. 659; (1891) 2 Q. B. 652), that, by naming a port to which it was impossible for the ship to proceed, the defendants failed to exercise the option given to them, and failed to fulfil their obligation to give effective orders as to the port of discharge, thereby preventing the ship from earning the freight, and causing other injury and expense.

Held, that the judgment of Bailhache, J. was right. Appeal dismissed.

[Aktieselskabet Olivebank v. Dansk Svovlsyre and Superphosphat Fabrik. Ct. of App.: Bankes, Warrington, and Duke, L.JJ. March 12, 13. 14, and 17.-Counsel: for the plaintiffe, R. A. Wright, K.C. and Le Quesne; for the defendants, Leck, K.C. and A. Neilson. Solicitors: for the plaintiffs, Botterell and Roche; for the defendants, William A. Crump and Son.]

Highways-Excessive Weight-Extraordinary Traffic-Increase in Quantity and Frequency-New Method of Transport-Damage within Twelve Months of Writ-Measure and Ascertainment of -Other Traffic and Couses-Highways and Locomotives Amendment) Act 1878 (41 & 42 Vict. c. 77), s. 23-Locomotives Act 1898 (61 & 62 Vict. c. 29), s. 12.

On the 19th Feb. 1917 it appeared by certificates of the surveyor of the plaintiffs' district that, having regard to the average expense of repairing highways in the neighbour hood, extraordinary expenses amounting to £400, £890, £420, and £40 respectively had been incurred by the plaintiffs, as the highway authority, in the past year in repairing four roadsB.-road, A.-road, U. C.-road, and P. P.-road-by reason of damage caused by excessive weight and extraordinary traffic thereon. On the 21st Feb. 1917 the plaintiffs commenced an action against the defendants, limestone quarry owners, who had carried lime and coal to the railway station along B.-road and A.-road, and along the other two roads, claiming £1750 for expenses of repairing the highways. The defendants, who had previously used carts 'and waggons for their haulage, com. menced in Aug. 1913 and afterwards continuously used a steam waggon and trailer, and in Jan. 1916 a second steam waggon and trailer. The weight of the steam waggons exceeded the average of vehicles used for ordinary traffic of the roads and, it was alleged, crushed and broke up their surface, made deep holes, and forced up the foundations, so that the roads became a source of danger and a public nuisance. The plaintiffs claimed the respective sums mentioned as being expenses of extraordinary traffic on the four roads and as damage between the 21st Feb. 1916 and the 19th Feb. 1917 for wrongful and excessive user, and also sums for damage to B.-road and A.-road suffered prior to 1916 and by reason of nuisance. decided by Eve, J. (119 L. T. Rep. 669) that the defendants' steam waggon traffic was exceptional and extraordinary, and continued so down to the commencement of the action. His Lordship also decided, applying the test indicated in the reasoning underlying the judgments in Hill v. Thomas (69 L. T. Rep. 553; (1893) 2 Q. B. 333), that where the frequent passage of concentrated weight is the element relied on as making the traffic extraordinary, the proper test to apply is to ascertain whether at the time of the introduction of the means of transporting this concentrated weight there was any exist. ing traffic imposing a burden on the road comparable with it in quantity or frequency. The defendants appealed as to B.-road and U. C.-road.

It was

Held, that Eve, J. had pronounced a right decision, and that the appeal must be dismissed.

[Weston-super-Mare Urban District Council v. Henry Butt and Co. Limited. Ct. of App.: Swinfen Eady, M.R. and Warrington and Scrutton, L.JJ. March 24 and 25.-Counsel: Maugham, K.C. and W. A. Jowitt; Macmorran, K.C. and Scholefield. Solicitors: Joynson-Hicks, Hunt, Cardew, and McDonald; Mead, Steele, and Co., agents for William Smith and Sons, Weston-super-Mare.]

Secretaries and

Revenue-Excess Profits Duty — Assessability· Commission Agen's of Public Trading Companies - Expert Advice-Finance (No. 2) Act 1915 (5 & 6 Geo. 5, c. 89), ss. 38, 39. B. and Co. were constituted a firm of general merchants and commission agents, consisting of two partners, by a deed of partnership dated the 21st Sept. 1909. Clause 10 of the deed provided that both partners should devote their whole time and attention to the partnership business and neither of them should directly or indirectly be engaged in any other business. Nevertheless the firm had not in fact carried on business as general merchants or commission agents. But in making their returns for income tax they had described themselves as "secretaries and produce merchants." The firm had accepted invitations to act as secretaries and (or) agents to certain Eastern produce companies, they possessing special expert knowledge of matters connected with the Eastern produce trade generally. The firm received from each company as remuneration for their services a small fixed annual sum, and, in addition thereto, in most cases commission on accounts realised by the sale of produce. The produce was not sold by the firm, but by brokers in the usual course of trade on the instructions of the firm acting upon orders from the board of directors. The brokers received the usual commission for sale. No capital was required except a

small sum necessary to meet current expenses. The firm were assessed to excess profits duty under sect. 39 of the Finance (No. 2) Act 1915. On appeal to the special commissioners, they were of opinion that the firm were persons taking commissions or agents whose remuneration did not consist wholly of fixed and definite sums not depending on the amount of business done or any other contingency" within sect. 39 of the Act. Accordingly the special commissioners upheld the assessment. A special case was stated by the special commissioners for the opinion of the court under sect. 59 of the Taxes Management Act 1880 and the Finance (No. 2) Act 1915 which came on to be heard before Sankey J. It was decided by his Lordship that the business of the firm was that of persons taking commissions in respect of services rendered, and that they were also agents whose remuneration was not wholly a fixed and definite sum. The firm appealed to the Court of Appeal.

Held, that Sankey, J. had come to a right conclusion, and that the appeal must be dismissed with costs.

:

[Burt and Co. v. Inland Revenue Commissioners. Ct. of App. Swinfen Eady, M.R. and Warrington and Scrutton, L.JJ. March 20 and 21.-Counsel: Sylvain Mayer, K.C. and Samuel Moses; Sir Ernest Pollock (S-G.) and T. H. Parr. Solicitors: Geo. and Wm. Webb; Solicitor of Inland Revenue.] Revenue-Excess Profits Duty-Exception-Profits of literary Magazine-Bulk of Matter comprised therein contributed by Proprietor personally Whether exercising a ProfessionFinance (No. 2) Act 1915 (5 & 6 Geo. 5, c. 89), 8. 39.

In 1893 M. purchased the monthly magazine known as the National Review for £1500, and since then had been the sole proprietor, editor, and publisher. An assessment to excess profits duty amounting to £1000 for the year ending the 31st May 1915 was made on the profits of the magazine under sect. 39 of the Finance (No. 2) Act 1915. The earnings were derived from sales of the magazine, from advertisements, and from reprints of articles which had practically all been written by M. The outgoings included payments to contributors, cost of paper and printing, advertising, office rent amounting to £63 per annum, and cffice expenses. The magazine was printed by an independent contractor. A manager at £250 per annum was employed by M., and two clerks who did the advertisement canvassing and account keeping. The distribution of the magazine was effected through wholesale houses. Before the war M. wrote a large part of each monthly number, though the bulk of the matter was contributed by others. The sales were largely due to the popularity of M.'s writings. When the war broke out M. greatly increased his personal contributions, and had since continued to do most of the writing. At the present time practically no capital was required by M. M. contended that the profits were earned by him by reason of his personal qualifications; that the capital which he had expended was insignificant in comparison with the personal qualifications required to earn the profits; and that he was exempt from excess profits duty by virtue of par. (c) of sect. 39 of the Finance (No. 2) Act 1915. It was contended for the Crown that the income derived from publishing a magazine was derived primarily from the sale of a commodity, and that M. was carrying on a business liable to the duty as he was not merely a journalist contributing to the Press. It was decided by the General Income Tax Commissioners that M. was exempt from the duty. A special case was, however, stated by them for the opinion of the court. It was decided by Sankey, J. (119 L. T. Rep. 371) that M. derived his profits from the sale of a commodity and was carrying on an ordinary commercial business; and that there was no evidence that he was carrying on a profession. M. appealed to the Court of Appeal.

Held, that M.'s claim for exemption was well founded, and that the profits arising from the two branches of his business —that of a journalist and editor and that of a publisher-must be separately assessed. Appeal allowed.

[Inland Revenue Commissioners v. Maxse. Ct. of App.: Swinfen Eady, M.R. and Warrington and Scrutton, LJJ. March 20 and 26.-Counsel: Hon. William Finlay, K.C. and A. M. Latter; Sir Ernest Pollock (S.-G.) and T. H. Parr. Solicitors: Preston and Foster; Solicitor of Inland Revenue.] HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Company-Deb nture Stock-Trust Deed-Construction-Remuneration of Debenture Trustees-Appointment of Receiver-Subsequent Remuneration of Trustees.

This was an application in a debenture-holders' action by the trustees of the second debenture-holders of the company that they might, notwithstanding the appointment of a receiver, be paid their remuneration The second mortgage debenture stock of the company was secured by a trust deed, dated the 11th July 1911, and it contained the following provisions: Clause 13 provided that the trustees should hold the moneys