Vol. 151

REPORTS

COURT OF APPEAL

BONES v. ASSOCIATED PORTLAND CEMENT MANUFACTURERS (1900) LIMITED.-Employer and workman-Personal injury by accident. WEBSTER v. HARRISON, TOWNSEND, AND CO. LIMI TED.-Employer and workman-Personal injury by accident-Claim for compensation MATTHEWS v. ROBERT MCCLURE AND SONS LIMITED-Employer and workman-Personal injury by accident-Claim for compensation PHILLIPS v. KERSHAW, LEESE, AND CO. LIMITED. Employer and workman-Death caused by accident-Compensation.

WHIDDERT v. CHISLET COLLIERY COMPANY LIMITED. Employer and workman-Death caused by accident-Compensation

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CHANCERY DIVISION PROVOST AND COLLEGE OF ETON v. COMMISSIONERS FOR THE LEVELS OF CALDICOT AND WENTLOOG.— Sewers-Commutation of liability KEEN . MEAR.-Vendor and purchaser-Specific performance-Authority of house agent to sign open contract-Contract dealing with title

THE LAW AND THE LAWYERS

1920

THE year under review has been one of those the true influence of which will only be laid bare to some impartial historian whose point of view can be distant enough to see events in their right perspective. The first and casual effect of their recall is somewhat sombre. We do not seem to be recovering from the manifold shocks of the war; business appears to be going from bad to worse; Stock Exchange values, a touchstone in the minds of some as to the state of affairs, seem capable of a never-ending fall as regards even the most gilt-edged securities, while the dread spectre of unemployment and destitution is making its appearance in our midst. Strikes and rumours of strikes have abounded. Capital and labour have stood in scarcely concealed hostility. If the glance is directed abroad, however, the same phenomena are observable, even in countries whose material fortunes have been actually enhanced by the war, and this consideration in itself suggests that there are movements and forces at work throughout the world, caused, or at any rate accelerated, by the war, the effects of which do not altogether depend on the temperaments either of rulers or ruled. They depend on many and obscure, almost self-contradictory, causes, and, in these days of closer international relationship, it is possible that the sum total of all these influences leads to unexpected and incalculable results. One has to take a very broad view, to scan the horizon as a whole without paying too much regard to this or that cloud, and, if that is done, the first impression begins to give way, and there become visible encouraging signs amid the gloom. Looked at broadly, there is evidence that the sound good sense of labour is against extremism, that the abundant evidence of financial strain is having its effects in restraining demands such as might have been preferred had the artificial prosperity of bygone months continued to prevail, and those desperate crimes of personal violence, which were so common a feature of life in great centres and rural districts alike, are becoming more and more rare. we are apt to look gloomily at the situation, as the Englishman so frequently and habitually does, we may profit by scanning the favourable impressions which foreign observers invariably entertain as they compare the position of this country with that of their own. In a word, we seem to be Second Sheet.

So if

turning the corner, and, with wise statesmanship at Westminster in the matter of rigid economy and a spirit of hopeful trust, we may look forward after a spell of winter difficulties to a resumption of better times. The check in the rise of prices in many commodities is significant; it will open the door to happier influences in all directions. Such legal reforms as have already been made, to which we will allude in their place, and those adumbrated by the Lord Chancellor's articles in the Times, will all in their own way contribute to the settling-down process.

These changes in our environment have been accompanied by many other changes of more particular interest to the legal practitioner. Those which have been wrought by the hand of death are many and severe. No judge more deserved the universal esteem of the Profession than Lord Cozens-Hardy, whose decease was a great loss to the law. No judge showed more kindliness and consideration to the Bar, or was more deserving of admiration for his quick perception of the salient points of an argument. Sir Henry Sutton, an ex-judge, also passed away during the year under comment. The death of a notability is to be chronicled in that of the last Lord Chief Baron of Exchequer in Ireland, the Right Hon. Christopher Palles, whose demise breaks a link with the legal past. The County Court Bench has lost His Honour Judge Woodfall, His Honour Judge F. C. Mackarness; Sir Horatio Lloyd, a retired County Court judge; and His Honour Judge D. F. Steavenson. Mr. Atkinson's death left a vacancy in the magisterial work of Leeds. Nor must we forget to mention the early loss sustained in criminal matters by the demise of the Director of Public Prosecutions, the late Sir Charles Matthews.

Among "silks" there have passed away during 1920 Mr. G. Boydell Houghton; Mr. W. D. Rawlins, who specially identified himself with the subject of specific performance; Mr. Herbert Reed, who for his part had given much attention to bills of sale and bankruptcy; Sir Thomas Raleigh, whose work lay in the calmer surroundings of Oxford, where he was for a time Reader of English Law; Mr. J. D. Walker, Mr. A. J. Ram, Mr. J. H. Payne, and Mr. J. S. Dugdale.

The Outer Bar has lost a series of venerable practitioners. Mr. John Digby died at the age of ninety-three; Mr. T. Spooner Soden at eighty-three; Mr. E. Pinckney, eightyone; Mr. W. H. Deverell, eighty-four; and there is no longer to be seen the robust and striking figure of W. B.

Woodgate striding with his well-known and characteristic headgear through the Inner Temple courts, an athlete and a joyous companion despite his eighty years. The Chancery Bar is the poorer for the deaths of Mr. P. F. Wheeler, Mr. G. B. Freeman, and Mr. G. R. Northcote. Amongst other barristers familiar enough to the habitués of the courts we must note the deaths of Messrs. Edward Chitty, one of the last revising barristers; Tyrrell Thomas Paine; John Arthur Slater, one of our own reporters; W. H. Macnamara; J. E. Aldous, law reporter; and F. O. Robinson, assistant editor of the Weekly Notes. Mr. W. H. Bateman Hope, Mr. S. S. Dorsett; Sir H. W. Vesey, for forty-four years an official referee; Mr. T. E. Ellison, the leader of the Sheffield Bar; Mr Charles Mellor, Mr. A. G. C. Liddell, C.B., for twenty-two years assistant secretary to many Lord Chancellors, are further names of honoured personalities; and finally there is a legal author of a book on criminal law, who deserted his profession for holy orders, the Rev. S. F. Harris. A long list is this of men who in varied spheres have each, according to their several gifts, contributed to enrich the profession of their choice.

It is a most remarkable thing to notice that, despite the tremendous strain of a busy solicitor's life, it is almost invariably in this branch of the Profession that we find the record of longevity. We find it this year in Mr. Thos. Holden, of Hull, who died at the age of nearly ninety-seven; he is followed by Mr. Hammonds, of Bristol, ninety-four; Mr. Whitford, of St. Columb, ninety-two, who was in regular practice to the very end of his life; Mr. Letts, of Letts Brothers, ninety-two; Mr. Cranswick, of Leeds, eightyeight; Mr. Wightman, Sheffield coroner, eighty-six; Mr. Winder, eighty-five, of Bolton; Mr. T. R. Roberts, eightythree, of Llangefni; and Mr. Lisle, of Durham, who died at the age of eighty-two. Mr. Thomas Priestman must also have been of a great age, for he certainly practised in Hull for fifty years; and Mr. Walter Young, who died at eighty years of age, was regarded as London's oldest practising solicitor. Without desiring to attempt the invidious task of selecting among names which recall well-known practitioners, we may mention, in addition, Sir Luke White (Driffield), Messrs. Thomas Pratt (Harleston), W. B. Trimmer (Alton); F. Brinsley Harper, of Lumley and Lumley; H. C. Harvey, of Newcastle-on-Tyne; H. C. Pinsent (Birmingham), who was at one time a member of the Chancery Bar; J. F. Sarjeant, a familiar name to Berkshire men; H. P. Smallpeice, also well known to Guildford residents; J. W. Piercy (Huddersfield), Robert Norris, ex-president of the Liverpool Law Society; W. E. Baxter, the coroner in East London; and a younger man, who was for some time a partner with Mr. Lloyd George, afterwards head of his firm, and who died quite recently, having held the position of Official Solicitor for about twelve months Mr. Arthur Rhys Roberts. These are men in many cases of mature years, but if the solicitors' branch of the Profession is to hold its records of longevity it will have to compete with the wonderful vitality displayed by Lord Halsbury, in his ninety-eighth year, and the equally wonderful energy of Lord Lindley.

The

The vacancies in the High Court Bench were filled by the excellent appointments of Mr. Rigby Swift, K.C., and His Honour Judge Acton. The last-named appointment constituted a precedent, but it was one of a satisfactory character as one recognising the high standard of attainment often reached by judges of the inferior courts, and as one, moreover, which would, by making the County Court a steppingstone to advancement to the High Court, tend to raise still higher the honour of the County Court Bench. appointments to that Bench during the year under review have included those of Mr. Henry Tyrrell, K.C., Mr. A. H. Maxwell, Mr. H. Newell, Sir Patrick Rose-Innes, K.C., and Mr. J. R. V. Marchant, who succeeded to the post vacated by the resignation of His Honour Judge Eardley Wilmot. Mr. T. W. Fry became a metropolitan police magistrate, and Mr. C. R. Bradburne succeeded Mr. Rhys Roberts in the office of Official Solicitor. The appointment of Sir Archibald H. Bodkin as

Director of Public Prosecutions was almost a foregone conclusion, and there have been indications of somewhat cautious handling of cases presented to him for action. Sir Willes Chitty became Senior Master and King's Remembrancer, and Sir Francis Newbolt, K.C., and Mr. G. A. Scott were appointed official referees. The following were appointed silks," viz., the Right Hon. Sir F. Pollock, Messrs. A. H. Poyser, J. H. Murphy, J. W. R. Brown, J. W. Manning, H. C. Dowdall, G. B. Hurst, H. Maddocks, Montagu Sharpe, W. T. Lawrence, W. S. Holdsworth, Brigadier-General G. J. Shaw Mellor, C.B., H. S. Preston, G. S. Robertson, G. M. T. Hildyard, W. J. Jerves, W. E. T. Jones, E. A. Harney, and Sir W. R. D. Atkins.

Still glancing at the personal side of the events of the year, we may recall some of the honours bestowed upon members of the Legal Profession. Amongst these we may mention the K.C.B. conferred on Sir Claud Schuster, K.C., the baronetcy given to Mr. Felix Cassel, K.C., the knighthoods customary on judgeships which fell to Justices Rigby Swift and Acton, and those whereby were honoured for much useful professional work, Mr. H. Cartmell, the Preston solicitor; Mr. G. J. Fowler, and Mr. R. N. Key, who practised respectively at Kingston and York. Mr. N. T. Foster, a member of the Bar, was knighted also, as was Mr. H. C. Biron when appointed chief metropolitan magistrate. The flow of appointments to the Order of the British Empire reached the Legal Profession, and in Vol. 149, at pp. 271, 285, and 310 there will be found a list of the same which no reasonable limits of space would suffice even for purposes of selection.

an

Turning from the personal to the more technical side of the year's work, we may refer our readers to the series of articles on the decisions of the year which we published in the autumn, Vol. 150, pp. 105 et seq. There will be seen in them indications that war conditions were passing away, and that problems of more normal descriptions were reasserting themselves for solution. Since the courts reassembled after the Long Vacation some interesting points have been raised. Thus in Re Willis; Shaw v. Willis (noted 150 L. T. Jour. 262) the Court of Appeal has held a gift valid whereby residue was given by a testator to an institution to be selected by a friend within three months. Johnston v. Maconochie (noted 150 L. T. Jour. 262) was another Court of Appeal decision of important character, where there was a restrictive covenant obliging a house to be used as a private dwelling-house. Despite sect. 27 of the Housing, Town Planning, &c., Act 1919, the court held it possible to convert a house into flats letting at rentals of some £400 a year, and therefore entirely beyond the means of working-class tenants. The discretionary nature of the power to reopen cases under the Increase of Rent Act 1920 was dwelt upon in Taylor v. Faires (noted 150 L. T. Jour. 296), where the question turned on the point whether premises were business premises or a dwelling-house. The large number of queries sent to us week by week on this legislation indicates both its importance and the very real difficulty to be experienced in applying this legislation to the complex facts of modern life. The demise of land for the storage of explosives and the landlord's covenant for peaceful enjoyment were issues in Harmer v. Jumbil (Nigeria) Tin Areas Limited (noted 150 L. T. Jour. 325), where the Court of Appeal had to consider under novel surroundings the doctrines of derogation from grants. A curious case, Re Korvine; Levashoff v. Block (noted 150 L. T. Jour. 341), drew attention to the curious exception to the stricter law relating to testamentary gifts which falls within the four corners of the donatio mortis causâ. The question turned largely on delivery and the effect of the lex situs in a case which formed an echo of the confusion and distress reigning in Russia in modern times. H. C. Smith v. Great Western Railway (noted 150 L. T. Jour. 370) is also worth notice by those whose practice leads them into railway disputes, for it shows, on the authority of the Court of Appeal, that the companies are within their rights in taking up a stiff attitude where goods committed to them

for transport at owner's risk simply disappear and nothing can be ascertained as to the circumstances attending their loss. It requires strong evidence before the owner can treat the matter as one of wilful misconduct. A workman's compensation case in the Lords, Moore and Co. v. Donelly (noted 150 L. T. Jour. 386) shows again that a man cannot be deemed to be acting within the sphere of his employment if he is doing something which is in breach either of a statutory prohibition or of one imposed by the employer to regulate the employment and thereby suffers injury. This man had returned to a place where a nonexploded shot was lying. This is in direct conflict with sect. 3 (a) of the Explosives in Coal Mines Order of Sept. 1913. Fife Coal Company v. Sharp (noted ibid.), also in the House of Lords, was another case of broken regulations, where a man had gone into an area fenced off by reason of the presence of dangerous gas and had been overcome by it, with fatal results. The employers were held not liable. An instance of a contract being annulled by the court in the exercise of its discretion, owing to serious hardship arising out of alterations in trade conditions, is to be found in North Metropolitan Electric Power Supply Company v. Borough Council of Stoke Newington (noted 150 L. T. Jour. 387), decided by Mr. Justice P. O. Lawrence.

The legislative machine has been working, as was the case last year, at tremendous pressure, and one has only to refer to our series of articles on this subject (pp. 225 et seq.) to realise both the volume and variety of the output. Coal, National Health, Finance, Unemployment, Irish Disorders, Census, Firearms, and indemnity against proceedings in relation to acts done during the war-these are but a few of the subjects which have claimed attention. There is hardly a department of national life which has not been affected in one way or another. Two decades of active spade work have during the year found their consummation in the first elections under the National Assembly Church of England (Powers) Act, and Parliament will shortly have before it a sequel in the measure promoted by Lord Parmoor to regularise the powers and liabilities of the parochial councils. On Christmas Eve important additions were made to the statute-book. Far and away the most momentous of these is the Government of Ireland Act. It is the last word in thirty years of controversy, and it is difficult to see what alternative offers itself now to a settlement of the dispute other than an appeal to brute force. The Roads Act and measures dealing with official secrets and unemployment are also to be added. The Dyestuffs Act has been a recent addition to the list, but German dumping compelled an immediate fulfilment of Government pledges to check unfair competition. The Administration of Justice Act has recently been the subject of comment in these columns, and we may pass it by on this occasion, and the Agriculture Act must perforce stand over for closer examination. It led at the last moments of the session to such complicated alterations, as a result of differences between the two branches of the Legislature, that until the Act is printed in its final form it is well-nigh impossible with confidence to appraise its merits. Meanwhile the Law of Property Bill stands over, and the opportunity might well be taken to remit it to a body of expert draftsmen for skilled revision so that there might be less danger of amendments calculated to fog and blur its intentions and effects. It is officially hoped that next February the Legislature may have less pressure of work. On the other hand, there are Government pledges as to the acquisition of coal royalties, licensing, encouragement of the fishing industry, minimum wages, cheap power, reform of the Lords, the importation of goods at abnormal prices due to the collapse of foreign exchanges, and so forth. Unless some or all of these are covered by the general resolution to defer sine die schemes involving new expenditure, there is already before the country a not exiguous programme. The events of the last few months and the prospects of commercial depression alike demand that drastic reductions must be made in expenditure somewhere, and that the crushing burden of taxation and rating must be lightened.

We may end on a clear note of hope. The League of Nations, despite all the illusory hopes of perfervid advocates, has already shown signs of good augury. It has begun, and happily in a very modest way, to influence, though not to control, those factors which inevitably lead straight to financial disaster and discord among the nations. While human nature must sway its counsels, they are also swayed by that intangible something which, for want of a better name, is described as atmosphere. As regards our own nation, no man of British blood should for one moment allow himself to forget the part which our own Royal Family has played throughout the year. While other countries are in seething, we can feel that the overwhelming majority, alike in these islands and in the overseas dominions, recognises as a personal tie the link which binds them as with a golden thread to the present occupant of the Throne. Nor are we the less blessed that its future occupant has proved himself one with a capacity for growth in deeper insight, and one with an increasing power of putting into plain English, such as awakens a reverberant chord in the minds of hearers, that which his wide experience of the Empire tells him is needed to-day. The time to write Ichabod over our people has not yet come, and there is no cause for dismay if their sound good sense impels them during the coming year to toe the line with confidence, to pull hard, and to pull straight.

THE CONVEYANCER

Howe v. Lord Dartmouth-Rate of Interest

IT is scarcely necessary to remind practitioners that when a residue of personal estate is given, en masse, to several persons in succession, wasting property, and property invested in a manner not authorised by the will, must be converted, unless it appears from the will that specific enjoyment by the tenant for life was intended. That is what is known as the rule in Howe v. Lord Dartmouth (7 Ves. 137). There seems, however, to be some obscurity as to what interest the tenant for life is entitled to under the rule, or in the case where there is a trust for conversion, and the income is given generally to the tenant for life. One of the most illuminating cases on the point is that of Meyer v. Simonsen (5 De G. & Sm. 723). There a testator gave the residue of his real and personal estate to trustees, upon trust to pay to or permit his widow to receive the income and profits; and after her death he gave the capital over. The will contained no direction for conversion. Part of the testator's property consisted of £12,000 invested in a partnership. Under a stipulation in the articles the surviving partner gave a warrant of attorney to the executors of the testator to secure the £12,000 by instalments of £1500 a year, with interest at 5 per cent. on the unpaid balance. It was held by ViceChancellor Parker that the rule laid down in Howe v. Lord Dartmouth, as applied to that case, required the trustees not to convert the property, but to set a value upon it, and to give the tenant for life 4 per cent. on the value, and to invest the residue of the surplus income, paying the income of such investments to the tenant for life, and appropriating the corpus to the remainderman. The learned judge divided the subject into three classes. First, where the subject-matter of the bequest is either invested in the funds, or in some security of which the court approves; there, no conversion is necessary, and the tenant for life takes the interest of the fund as it is, and the corpus belongs to those in remainder. The second class is where part of the estate can be sold and converted, so as not to sacrifice the interest of the tenant for life, or of the remainderman ; such a case is one of partial conversion, and the proceeds of the part converted must be laid out in the permanent security approved of by the court, of which the tenant for life will take the interest, and the remainderman the corpus. The third class is where property is so laid out as to be secured, and to produce a large annual income, but is not capable of immediate conversion, without loss and damage to the estate; there the rule is not to convert the property, but to set a value upon it, and to give to the tenant for life 4 per cent. on such value, and the residue of the income must then be invested, and the income of the investment paid to the tenant for life, but the corpus must be secured for the remainderman. Dimes v. Scott (4 Russ. 195) is an instance where what is sometimes called "the Consol rule was followed. In that case the testator gave the residue of his personal estate to trustees, directing them to convert it into money and invest the proceeds in Government or real securities, of which they were to stand possessed upon trust for A. during her life, and after her death for B. The trustees allowed a

share which the testator had in an Indian loan, bearing interest at 10 per cent., to remain for several years on that security, during which time they paid to A. the interest at 10 per cent., which it yielded annually; and, the loan being afterwards paid off, they invested the money in the 3 per cents, at a time when the funds were so low that the amount of stock purchased was considerably greater than if the conversion had taken place at the end of a year of the testator's death. It was held by the then Master of the Rolls that the tenant for life was only entitled, as from the death of the testator, to the dividends of so much 3 per cents stock as would have been purchased with the proceeds of the loan at the end of a year from the testator's death. In Brown v. Gellatly (17 L. T. Rep. 131; L. Rep. 2 Ch. 751) the facts were shortly as follows: The testator directed his executors to convert his personal estate when and in such manner as they should see fit, and gave them power to sail his ships for the benefit of his estate, till they could be satisfactorily sold. He gave his residuary estate to tenants for life, with remainders over, and gave his executors power to invest, at their discretion, or to allow to remain as then invested, all his funds in certain specified shares and securities. His ships gained considerable earnings after his death, and he had at his decease large sums invested in such shares and securities as he had specified, and large sums invested in shares and securities of other descriptions, and not proper for the investment of trust moneys. It was held by the Court of Appeal (affirming the decision of Lord Romilly, M.R.) that the tenants for life were not entitled to the earnings of the ships as income, but (reversing that decision) that they were entitled to interest at 4 per cent. on the value of the ships from the testator's death; and that they were entitled to the actual income of so much of the estate as was invested in such shares and securities as were authorised by the will as proper investments. It was also held (affirming the decision of the Master of the Rolls) that the tenants for life, as regarded the unauthorised investments, were entitled only to an income from the testator's death equal to the dividends of the Consols which would have been produced by a sale and investment in Consols at the end of a year from the death, and not to an income equal to interest at 4 per cent. on their value. In Re Woods (90 L. T. Rep. 8 ; (1904) 2 Ch. 4) Mr. Justice Kekewich, in applying the principle of Brown v. Gellatly to wasting securities, only allowed interest at 3 per cent. And that decision was followed by Mr. Justice Warrington (as he then was) in Re Chaytor (92 L. T. Rep. 290; (1905) 1 Ch. 233), and was extended by him to the value of all unauthorised securities, whether wasting or not. The question came before Mr. Justice Eve in Re Beech; Saint v. Beech (122 L. T. Rep. 117; (1920) 1 Ch. 40), and his Lordship decided that under a will, directing the conversion of residuary estate, with a power of postponement, the tenant for life was entitled to interest at 4 per cent. upon the capital value, ascertained at the testator's death, of unauthorised investments which were producing income. He considered that, as first-class investments could now be obtained for trust moneys, yielding interest at 5 per cent., matters approached much more to the condition of things subsisting when Meyer v. Simonsen was decided, than to those obtaining when Re Woods and Re Chaytor introduced exceptions to the rule laid down in the earlier case. It is stated in Master Chandler's well-known work on Trust Accounts, p. 100, that, in the case of unauthorised investments, the practice of allowing" Consol interest" (as was done in Brown v. Gellatly) is now very rarely applied--and that would seem to be the

case.

But as Consols at the present price pay over 5 per cent., tenants for life may seek to revive the rule.

NOTES OF NEW DECISIONS

By Our Reporters in the Several Courts HOUSE OF LORDS Employer and Workman-Personal Injury—Industrial Disease— Certificate of certifying Surgeon-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), s. 8 (1) (i.).

The respondent, who was forty-one years of age, was on the 21st April 1919 employed by the appellants as a labourer breaking up blocks of pitch for the manufacture of briquettes. He left his service on that day complaining of pain in his right eye, and consulted his doctor, on whose advice he went to the Glasgow Eye Hospital. After being there five weeks his right eye was removed on the 9th June. The certifying surgeon for the district certified on the 3rd July that the workman was then suffering from ulceration of the corneal surface of the right eye, and that the disablement commenced on the previous 21st April, and that the loss of the eye was due to corneal ulceration. The applicant appealed from that certificate to the medical referee, who declined to interfere with the certificate. Before the sheriffsubstitute at Stirling the employers successfully contended that the certificate was invalid. A certificate could only be given in

accordance with sect. 8 (1) (i.) of the Act on a personal examination of the applicant, and that as the certifying surgeon did not examine him until after the eye was removed, he could not certify that the man was then suffering from corneal ulceration of the eye, for the eye had at that time ceased to exist. The sheriffsubstitute accepted this contention and dismissed the claim, but on appeal, Lord Cullen dissenting, it was allowed, but on the ground that, it being a question entirely for the certifying surgeon, his certificate must be accepted as a valid certificate for the purposes of sect. 8 (1) (i.). The employers appealed.

Held, dismissing the appeal, that the certificate was valid. [Archibald Russell Limited v. Corser. H. of L.: Lord Birkenhead, L.C., Lords Finlay, Dunedin, Atkinson, and Shaw. Dec. 6, 1920.-Counsel for the appellant, Condie Sandeman, K.C., T. Graham Robertson, and Beveridge; for the respondents, Macquisten, K.C. and Thos. Scanlan. Agents, Beveridge and Co.; H. Z. Deane.]

:

Writ of Summons-Service out of the Jurisdiction-Alleged Libel in Advertisements Injunction-Damages not claimed-Exercise of Discretion-Rules of the Supreme Court (Ireland) Act 1905, Order XI., r. 1.

The appellants had registered offices in England, and the respondent, who was the inventor of a pneumatic tyre, resided in Dublin. On the 16th Jan. 1920 the respondent obtained leave, by an order made in the Chancery Division in Ireland, to serve a writ of summons upon the appellants for an injunction to restrain them from printing, publishing, or exhibiting in Ireland any advertisements, placards, books, or circulars containing pictures representing him in absurd or unsuitable costumes or attitudes, or caricatures of him, or otherwise calculated to expose him to public ridicule or contempt by misrepresenting his appearance or costume. On being served with the writ of summons the appellants moved to discharge the order of the 16th Jan. and to set aside the writ and the service thereof. Powell, J. refused the application, and the Court of Appeal in Ireland dismissed the appeal from his decision. The question was whether the order made by the Irish court was a proper exercise of their discretion, it not being contended that the court in no case had jurisdiction. By Order XI., r. 1, of the Rules of the Supreme Court (Ireland) Act 1905, Service out of the jurisdiction of a writ of summons may be allowed by the court or a judge whenever (g) any injunction is sought as to anything to be done within the jurisdiction whether damages are or are not sought in respect thereof." Held, that, although all that the respondent sought to restrain was the exhibition of pictures depicting himself dressed up in an exaggeratedly foppish manner, the court in Ireland had exercised a discretion, and, it not being shown that in so doing the discretion had been exercised upon a wrong principle, the appeal

failed.

66

[Dunlop Rubber Company Limited v. Dunlop. H. of L.: Lord Birkenhead, L.C., Lords Atkinson, Moulton, and Buckmaster. Dec. 20, 1920.-Counsel: for the appellants, Sir John Simon, K.C., T. M. Healy, K.C., and Wrottesley; for the respondent, S. L. Brown, K.C. and A. C. Newett (both of the Irish Bar). Solicitors: J. B. and F. Purchase and Clark; Cattarns and Harris.]

COURT OF APPEAL

Auction Agreement between Dealers to abstain from bidding— "Knock out -Sale of Government Stores-Public Policy— Illegality.

Appeal by the plaintiff from a judgment of Shearman, J. without a jury (123 L. T. Rep. 718). The plaintiff claimed from the defendant an account of profits arising out of an alleged agreement between the plaintiff and defendant, made at a public auction of Government stores, that they would not bid against each other, and that they would share the profits resulting from the purchase of certain articles at an auction. He also claimed damages for breach of the agreement. The plaintiff and defendant both carried on business in London. They were both persons who made a business of buying empty shell cases and reselling them, at a profit, as tins for commercial purposes. In June 1919 the plaintiff attended at a public auction sale at Dublin of Government stores with the intention of bidding for a quantity of empty tin shell cases that were about to be sold on behalf of the Ministry of Munitions. He had a market in shell cases, and believed that he would be the only buyer from England of the shell cases. In the saleroom he met the defendant B., who traded as the G. T. C. The defendant approached the plaintiff and proposed that, in order to avoid competition, one of them only should bid. It was thereupon agreed between them that the plaintiff should abstain from bidding for the tins, that the defendant should bid for them on joint account, and that, if he succeeded in purchasing them, they should divide the goods equally between them, each paying half the purchase money. In pursuance of that agree

ment, the plaintiff refrained from bidding, and the tins were knocked down to the defendant. Subsequently the plaintiff wrote to the defendant and offered to sell him his share of the profits for £150. The defendant, however, repudiated the alleged agreement and maintained that he had bought the goods on his own account alone. Shearman, J. held that, the subject-matter of the sale being Government stores, the agreement that one party should abstain from bidding in order that the other should obtain the goods on the joint account at a lower price than they would have had to pay if they had bid against one another, was contrary to public policy and therefore not enforceable. The plaintiff appealed. Cur. adv. vult.

Held (Scrutton, L.J. dissenting), that the appeal must be allowed. Bankes, L.J. (with whom Atkin, L.J. concurred) said that the case was covered in principle by Galtan v. Emuss (1 Coll. 243) and other cases following it, and the plaintiff was entitled to judgment. Scrutton, L.J. held that such an agreement was contrary to public policy. If enforced by injunction, it would deprive the public of the advantage of free competition at auctions, and was an agreement which the courts should not enforce. Appeal allowed.

[Rawlings v. General Trading Company. Ct. of App.: Bankes, Scrutton, and Atkin, L.JJ. Dec. 20, 1920.-Counsel: for the appellant, McCall, K.C. and Walter Stewart; for the respondent, C. Bray. Solicitors: Bolton, Jobson, and Yate-Lee; G.S. Crawshay.] Champerty Maintenance-Action not maintainable without Proof of special Damage.

Appeal by the plaintiff against a judgment of the Lord Chief Justice. The plaintiff sued the defendant association for champerty and maintenance. An action had been brought by the plaintiff against the chairman and C., the secretary, of the defendant association for libel, with a counter-claim by C. against the plaintiff for libel. That action resulted in a finding by the jury that the alleged libel against the plaintiff was true, and that the libel against C. was false, £75 damages being awarded to C. The defendant association had indemnified its officers on terms that any damages recovered should be applied to the indemnity, and H. accordingly brought this action against the association for maintenance and champerty. [The plaintiff also sued for a declaration that he was entitled to be reinstated in his membership of the association, but that action is immaterial to this report.] Counsel for the appellant did not contest, in view of the decision of the House of Lords in Neville v. London Express Newspaper Limited (120 L. T. Rep. 299; (1919) A. C. 368), that an action for damages for maintenance will not lie in the absence of special damage, but he contended that the claim in champerty was not covered by the decision in Neville's case (sup.).

Held, that, champerty being a form of maintenance, a decision which applies to the genus must also apply to the species; the plaintiff had not proved any special damage, and his claim in champerty failed equally with his claim in maintenance. Appeal dismissed.

[Hickman v. Kent or Romney Marsh Sheep Breeders' Association. Ct. of App.: Bankes, Scrutton, and Atkin, L.JJ. Dec. 13, 1920.-Counsel: for the appellant, J. P. Eddy; for the respondents, Holman Gregory, K.C., F. Hinde, and Latey. Solicitors: A. R. Lord; Walters and Co.] Contract-Construction-Spaces in Exhibition—Exclusive "Rent payable ` Tenant "-Directors' Right to refuse or remove unsuitable Exhibits-Restrictions as to user of SpaceLicensee or Tenant-Right to Injunction.

user

By a standholder's application, dated the 5th Oct. 1920, which accompanied regulations signed on behalf of the defendant firm and for the purposes of the present motion constituted the contract, the plaintiff applied to be allotted three definitely described spaces at a charge per foot frontage and wall space for his exhibit at a fair at O. to be opened on the 17th or 18th Dec. 1920 and closed on the 24th or 25th Jan. 1921, the right to alter the dates of opening or closing being reserved to the defendants. Half the "rent payable was to be remitted with the application, the balance to be paid before the 1st Nov. Exhibits were to be properly placed and disposed in the applicant's name, and no exhibitor might "sublet or divide any space without the defendants' sanction; the stand fronts were to be of a uniform pattern, and erected by the defendants' official contractor at the exhibitor's expense, but the exhibitor might employ his own fitter; no erection must obstruct the promenades, and removal or alteration of objectionable erections or fittings could be required; the defendants might refuse or remove any exhibits not sanctioned or unsuitable; exhibits were to be subject to "a lien" for amounts due to the directors; the directors' decision of disputes was to be final and accepted by "the tenant"; an exhibitor, if objectionable to the management or public, might be excluded during the period of this tenancy"; and no exhibitor or servant would be allowed to sleep on the premises. The defendants objected to the use to which the plaintiff proposed to put one of the spaces, refused the balance of his payment for

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space, asserting a right to let to other persons than the plaintiff. The plaintiff by his action claimed a declaration of his right to the use of the spaces specified in the contract during the period of the fair and an injunction restraining the defendants from letting or disposing of the spaces in breach of the contract. He moved for an injunction until the trial. It was decided by Eve, J. (150 L. T. Jour. 279) that the right of the plaintiff to relief on the motion depended on the construction of the agreement; that if it were held to be a mere licence the cases showed that, not being under seal, the court might intervene to prevent its revocation, but they did not establish that the court would enforce it by specific performance by way of injunction; and that here there was nothing in the agreement inconsistent with the plaintiff being a tenant, and he was entitled to the injunction asked for. The defendants appealed.

i Held, that the appeal failed and must be dismissed.

[Joel v. International Circus and Christmas Fair. Ct. of App. : Lord Sterndale, M.R. and Warrington and Scrutton, L.JJ. Nov. 22, 1920.-Counsel: Gover, K.C. and J. N. Gray; Cunliffe, K.C. and Whitmore Richards. Solicitors: Campbell, Hooper, and Todd; Fielder, Jones, and Harrison.]

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Employer and Workman-Personal Injury by Accident-Claim for Compensation-Master of Tug-Remuneration in Excess of statutory Limit-"Workman "-Employment otherwise than by Way of manual Labour"-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), 88. 1, 7, 13.

The deceased was the master of a steam tug of about 35 tons, which was worked by a crew of four hands on the river Humber. Owing partly to the inexperience of the mate and the inadequacy of the crew a good deal more work was thrown upon the deceased than otherwise would have been necessary for him to do under his contract, so that the particular conditions of his employment were different from those of ordinary tug masters. Thus, he had to handle and splice the ropes, scrape and paint the vessel, wash down the deck, and help in the coaling, which took place very frequently-about eleven times in eight weeks-and hooking on and casting off the tow ropes. All these were acts which he would not have had to do if he had had a really competent mate. There was evidence that the usual duties of the master of a tug of the description of the one in the present case would be to look after the navigation of the vessel, to see that the hawsers were properly made fast and the like, make contracts for towage, and generally to exercise control and maintain the discipline on the tug. By accident arising "out of and in the course of" his employment, within the meaning of sect. 1 of the Workmen's Compensation Act 1906, the deceased was drowned. Thereupon the dependant of the deceased made a claim for compensation against his employers under that Act, which was followed in due course by a request for arbitration. The question was whether the deceased came within the definition of "workman" contained in sect. 13 of the Act. It was decided by the learned County Court judge that, having regard to the duties which the deceased was employed to perform apart from manual labour altogether, the circumstance that the work of the deceased was different from that of other tug masters was not such as to prevent his coming within the definition that he was employed otherwise than by way of manual labour"; and that consequently he was not a "workman" within the meaning of sect. 13 of the Act of 1906, because his remuneration exceeded the statutory limit. The applicant appealed.

Held, that unless the learned County Court judge had misdirected himself his decision was one of fact which could not be interfered with; and that His Honour had rightly applied the principle laid down by the previous decisions. Appeal dismissed. [Jaques v. Owners of Steam Tug Alexandria. Ct. of App. : Lord Sterndale, M.R. and Warrington and Scrutton, L.JJ. Nov. 17 and 18, 1920.-Counsel: Holman Gregory, K.C. and W. H. Owen: Neilson, K.C. and M. W. Price. Solicitors: Dawson and Loncaster, London and Kingston-upon-Hull; Pritchard and Sons, agents for A. M. Jackson and Co., Kingston-upon-Hull.] Employer and Workman-Personal Injury by Accident-Death resulting from Claim for Compensation by Dependants—Previous Claim for, by Workman in his Lifetime-Whether res judicata and estoppel-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), s. 1.

The deceased workman, who was in the employment of the respondents, suffered personal injury by accident in respect of which he claimed compensation from them under sect. 1 of the Workmen's Compensation Act 1906, which was followed in due course by a request for arbitration by the workman. His contention was that the accident arose "out of and in the course of " his employment. But the learned County Court judge before whom the application came on to be heard negatived that view. The death of the workman having subsequently resulted, it was said, from that accident, an application was made on behalf of his dependants for compensation under the Act. The application came on to be heard before the same learned County Court judge,