THE LAW AND THE LAWYERS NOTEWORTHY DECISIONS OF THE JUDICIAL YEAR

(Continued from p. 195.)

THE Court of Appeal decision in Re Munton: Munton v. West (136 L. T. Rep. 661; (1927)1 Ch. 262) is full of important observations on a trustee's duties and the liabilities of his position. Mrs. W. was a retiring trustee of a will. One of her colleagues was a solicitor who received various unflattering descriptions in the course of the hearing. He was said to be "dilatory," "not to keep accounts," and in another trust he invested money “in very hazardous personal security." In addition he was known to be " an incompetent muddler," but up to a point the retiring trustee had no notion that he was also dishonest. So she, with the concurrence of her own independent solicitors, joined, shortly after the appointment of a new trustee, with her co-trustees in executing a joint power of attorney authorising certain stockbrokers to sell and transfer £5741 of War Stock. The solicitor-trustee was now discovered to be a rascal, for he misappropriated the whole fund. The other trustees who continued to press for a proper transfer were put off with various excuses, but when the facts were elicited the solicitor was convicted of fraudulent conversion and adjudicated bankrupt. The plaintiffs, beneficiaries under the will, commenced proceedings against the trustees for replacement of the money so lost. The primary onus being on the retiring and old trustee, it was urged for them that the delegation to brokers, by a power of attorney, was common on the appointment of a new trustee and also the brokers, having no authority to pay the money to the solicitor-trustee, should before doing so have sought the instructions of the old trustees. The Court of Appeal, being satisfied that the retiring trustee had no knowledge of the solicitor's rascality, held that she and her colleague could not be regarded as having committed any breach of trust in executing a power of attorney in the form selected by that solicitor and that they had given no authority to him to receive the money. Mr. Justice Astbury, as judge of first instance, alludes to the "unfortunate practice" by which brokers operating with a power of attorney, signed by trustees, hand the proceeds to the trustees' solicitor, who lodges the power. It was not for the court thus concerned to say whether brokers instructed to sell on behalf of three stockholders are responsible for handing the proceeds to one of them without the consent of the other two. Re Oliver; Theobald v. Oliver (ante, p. 25; (1927) W. N. 199) was a breach of trust decision of considerable interest determined by Mr. Justice Tomlin. A testatrix had given the estate to two sons on trust to set aside £2000 and to the interest on it to her daughter Laura until death or pay

remarriage and then to fall into residue. Subject to this the testatrix gave her residue in trust for six children. The two sons were executors and trustees. Amongst these six children was one Adela, who in a marriage settlement had covenanted to settle after acquired property. Pursuant to this her interest in the will had been assigned to the trustees of the settlement. The plaintiffs as the existing trustees of it claimed against the personal representatives of the two executors on the ground that they had misapplied certain sums and they asked that they should be restored to the estate of the testatrix. The defendants contended that the sums in question had been spent in meeting liabilities of the testatrix in 1894, and they pleaded such statutes of limitation as were applicable. The plaintiffs had to admit that these afforded a defence whether the defendants could justify payments or not, but excepted from this a claim for a share of the £2000 legacy to Laura, which only fell into possession in 1916, when Laura died. The case turned in the end on the point whether there was a defence under the statutes in regard to this share of the £2000 on the footing that the payments away had been made in 1894. It was argued that this was an action to recover a legacy within the Real Property Limitation Act 1874, s. 8, and that the statute only began to run against the plaintiffs from 1916 when Laura died. Mr. Justice Tomlin, looking at all the circumstances in order to ascertain what the nature of the action was, held that it was one against personal representatives of executors alleged to have held trust funds on express trusts. He held that the case fell under the Trustee Act 1888, s. 8, and so the period was six years.

Amongst the noteworthy decisions on WILLS which have been reported during the past judicial year, Re Sikes; Moxon V. Crossley (136 L. T. Rep. 666; (1927) 1 Ch. 364) is worthy of attention as dealing with a point of interpretation not devoid of difficulty, and yet one which crops up frequently enough in the daily round of practice. The testatrix bequeathed" my piano," to L. At the date of the will she possessed a piano which she had had converted into a "player" piano. Two years after the date of the will she sold it for £5, and shortly afterwards spent £228 on an electric motor piano. When she died this instrument was in her possession, and the trustees, feeling some doubt as to the interpretation to be put on the bequest, took out a summons to ascertain whether the new piano passed thereunder to L. There is sometimes ademption in the cases where an article bequeathed is disposed of between the date of the will and the death, and a replacement of other similar articles may result in their passing under the will. The gift in this case, however, is specific, and Mr. Justice Clauson considered that the testatrix

in using the words " my piano had a particular article in mind, and intended to bequeath that article and no other. He held accordingly that the "motor piano " did not pass,

and that there was a contrary intention sufficient to take the bequest out of the operation of the Wills Act 1837, s. 24. Re Errington; Gibbs v. Lassam (136 L. T. Rep. 764 ; (1927) 1 Ch. 421), decided by Mr. Justice Romer, illustrates the working of another rule of construction. In this case the testator gave the income of one-third of his residue to E., and after her death this one-third was to be divided between J. and S., or 66 if dead between their issue share and share alike." J. died in E.'s lifetime leaving issue, both children and grandchildren. The first difficulty arises out of the words "if dead," which grammatically rather suggests a meaning of both J. and S. being dead. The learned judge, however, applied a rule obtaining as to original gifts so as to cover the case of substitutional gifts. That rule is this: Where income is given to A. and B. for their lives followed by a direction that at their death, or deaths, or at or after the death or deaths of A. and B., the property is to go to their issue, the gift is not construed as one only to take effect on the death of both in favour of the issue of both, but it is construable as a gift, to take effect on the death of each, of the share to the income of which the deceased was entitled, to the issue of the deceased. Mr. Justice Romer accordingly held that the testator meant that the property was to be divided between J. and S., but that in the event of either being dead at the time of distribution the issue of that one was to stand in her stead, and take by way of a substitutional gift. In this case, J. left numerous children and grandchildren, but some of her issue had predeceased her. This being a substitutional gift, the learned judge held that issue which predeceased J. would not share in the distribution, it being a well-recognised rule that the court does not substitute the dead for the dead, and consequently of J.'s issue those only shared who were living at her death or who were born after her death in the lifetime of E., and they took in equal shares per capita. Re Bird; Watson v. Nunes (136 L. T. Rep. 346; (1927) 1 Ch. 210), heard by Mr. Justice Clauson, raises a very different sort of difficulty, and is a decision of some considerable importance. A testator in his will appointed trustees, and declared that they were to be trustees for the purposes of the Settled Land Acts 1882 to 1890. He gave his residue to them on trust to pay the income to A. B. N. for life, and after his death to hold the capital and income in trust for A. B. N.'s children, who, being sons, should attain twenty-one years of age. A. B. N. survived the testator, and then died leaving three sons, of whom one, the defendant, R. A. N., was of age and the other two were not twenty-one. The trustees, the plaintiffs, contracted to sell some land belonging to the testator's estate, part of which was appropriated to meet certain annuities bequeathed by the testator and questions then began to arise which compelled the plaintiffs to ask for a decision whether they were trustees for sale of the (a) unrealised residuary real estate, and (b) the real estate of the testator which had been appropriated to meet the annuities. There also arose the question if the court held that they were not such trustees for sale whether the appropriated real estate and the residuary real estate were settled land, and if so who was the tenant for life or the person having the powers of the tenant for life under the settlement made by the will. Yet another question arose as to who was entitled to the income between the date when the defendant R. A. N. attained twenty-one and the date when the two remaining sons attained that age or died under it. Mr. Justice Clauson, dealing with this latter point, first held that R. A. N., being twenty-one, had an absolute title to onethird of the income of the residuary estate, and the other two-thirds of the income was to follow the destination of the shares of the corpus from which the income arose. Owing to the view which the learned judge formed as to the application of the Settled Land Act, it was left undecided whether the plaintiffs were trustees for sale of the unrealised residuary estate or of the real estate which had been appropriated. It was unfortunate that the court did not have to give some opinion upon the provisions in the Law of Property Act 1925, Part IV., Sched. I. which described as provisions subjecting land held in undivided shares to a trust for sale. Mr. Justice Clauson again did not consider whether the trustees were trustees for sale or not, but approached the difficulties of the case by considering whether the land was settled land, and who had the powers of the tenant for life. It is clear that the sons' interests were interests in undivided shares, while the definition of land in sect. 117, sub-sect. 1 (ix.) of the Settled Land Act 1925, ends with the words that land includes “ any estate or interest in land not being an undivided share in land." This debars an undivided share being settled land

sums

66

..

for the purposes of the 1925 Act, but notwithstanding that, Mr. Justice Clauson held that land which is the subject-matter of a settlement of such a character that it is a settlement within sect. 1 (i.) of that Act may still remain settled land notwithstanding that some estate may ultimately come into being, which is an estate in an undivided share only. In accordance with this it was held that though the sons might become entitled under the will to undivided shares in the land, the latter was as a whole the subject-matter of a settlement under the Settled Land Act. As regards the land charged with the annuities, Mr. Justice Clauson examined sect. 1 (1) to decide whether the will was a settlement. He did not decide whether the annuities came within the word " rentcharge" therein, but he held that they were annual or periodical for the benefit of any persons," and without any restrictions in the construction of the word "benefit" on ejusdem generis principles, and accordingly he decided that in regard to that law the will operated as a settlement. In regard to the non-appropriated land the same decision was reached, and the trustees were held to be capable of exercising the powers of a tenant for life. Lord Merrivale's decision in Re Barnes; Hodson v. Barnes (136 L. T. Rep. 381) dealt with some very unusual facts. The testator was a pilot on the Manchester Ship Canal, and sometimes his duty led him as far as the tidal waters of the Mersey. When off duty he lived on shore. In Oct. 1920 he made a will in an orthodox manner. He died in 1925 and shortly afterwards his widow discovered on the top of a wardrobe an egg-shell on which was written "17-1925-Mag. Everything i posses. J." It was sought to have this declared as the pilot's last will. The handwriting was admittedly genuine, but nothing was known as to the circumstances of the making of this alleged will. The evidence showed that the deceased had stated to his wife before his death that he had given her everything by a codicil. Obviously it was no easy task to persuade the learned judge that the facts came within sect. 11 of the Wills Act 1837 as being the will of a mariner or seaman being at sea," to whom belong certain special facilities for disposing of their property. Nuncupative wills are at the best of times susceptible of dangerous consequences. His Lordship said that he must apply reason and robust common sense, and doing so held that the pilot here was not a mariner or seaman, being at sea," and he failed to gather how, when on shipboard, he could find or make a blown egg, and that as a matter of supposition it was more likely that he should do so when he was at home and could put the writing upon the shell and secure its safety. Re Lanyon: Lanyon v. Lanyon (ante, p. 65; (1927) W. N. 228) was a case before Mr. Justice Russell, where a testator gave a life income to his son, followed by a remainder to his children provided that he does not marry a relation by blood." The expression was construed so as to include all persons descended from a common ancestor, however remote. It was held that the authorities supported the proposition that it must be indicated plainly what the event was upon which a defeasance of a vested estate was to take effect; and a restraint on marriage, although only partial in terms, might from its nature lead in practice to a probable prohibition of marriage, which public policy would deprecate. The learned judge regarded the restraint here as of a nature such as made it well-nigh impossible to ascertain definitely that any particular lady was not a blood relation, and any marriage would involve a risk that defeasance might ensue by some common ancestor being traced. The defendant in a word could only be certain when he did in fact marry a blood relation, and could never be certain that he was not doing so. He treated a provision which by its nature produced such results as one leading to a prohibition of marriage, and void accordingly.

66

66

66

Reaching now the subject-matter of WORKMEN'S COMPENSATION, we find that the year under review has not failed to contribute a long series of important pronouncements to the already long list of authorities. There seems to be in truth no finality to the problems which so constantly arise in practice. In Ocean Coal Company Limited v. Davies (136 L. T. Rep. 449; (1927) A. C. 271) the House of Lords had a point upon which there has been considerable doubt. It turns upon the power of the arbitrator under sect. 14 of the relevant Act of 1923. That section enacts "that an employer is not to be entitled otherwise than in pursuance of an agreement or arbitration to end or diminish a weekly payment under the principal Act." There are certain exceptions, but these were not material in the case under comment. The facts, shortly

66

put, were that the workman contracted nystagmus on the 17th Oct. 1923, and his employers at once admitted liability and paid him full compensation under an oral agreement as from that date to the 26th Nov. 1924, when by further agreement the compensation was reduced. On the 3rd Sept. 1925 the weekly payments were stopped, and the employers sought arbitration with a view to the payments being determined as from the 3rd Sept. on the ground that the workman was now cured and could resume his usual work at his usual pay. The workman, while admitting his recovery, claimed that the payments could not be terminated until an award had been made. Both the County Court and the Court of Appeal agreed that the workman was able to claim compensation up to the date of the award. The decision of the latter tribunal is perhaps open to the comment, somewhat caustic in tone, passed upon it by Lord Dunedin, that the Lords Justices absolutely refused to state what was their own opinion, and declined to darken the mind of the House of Lords by any counsel they could give. Lord Dunedin for himself would have dismissed the appeal, but Lord Atkinson, Lord Wrenbury, Lord Shaw, and Lord Carson were agreed in a contrary view, and held that an abritrator cannot under sect. 14 award any payment after incapacity ceased, and that he ought to make an award retrospective in operation, terminating the payments as from the date of recovery. Lord Atkinson could see nothing in the earlier Acts authorising doles amongst workmen after incapacity, and as regards that of 1923 he considered that sect. 14 enabled the employer to stop the weekly payment so long as he acts in pursuance of " an agreement or arbitration, such words importing the doing of whatever that agreement or arbitration entitles the employer to do. An illustration of what is meant is added, viz., the payment of rent by a tenant "in pursuance of' 8 lease. The noble Lord considered that the object of the section was to effect a deprivation of an employer's previous right, arbitrarily and at his own unfettered will, to end or diminish an injured workman's weekly payments. The decision is highly important for it emphasises that incapacity and the period of incapacity are the ruling factors and the award is not the thing which creates liability to compensate but the incapacity, the award being a part of the machinery to determine the quantum of compensation and its enforcement. On the very same day the House of Lords had a Scottish case raising the same point, viz., Niddrie and Benhar Coal Company Limited v. Dee (136 L. T. Rep. 609 ; (1927) A. C. 299), and as a result of the previous decision Lord Dunedin concurred with the same remaining members of the court in holding that sect. 14 of the 1923 Act did not authorise an arbitrator to award compensation after incapacity had ceased. Clement v. Davis and Sons (136 L. T. Rep. 258 ; (1927) A. C. 126) is a highly important decision by the House of Lords on deductions from payments. The Act of 1923 by sect. 24 (2) provides that no deduction is to be made under par. 1 (a) (1) of the First Schedule of the principal Act of 1906, as amended by sect. 2 of the 1923 Act, in respect of weekly payments so as to reduce the sum payable in respect of the workman's children under sect. 2, nor so as to reduce the sum payable under the 1906 Act to a sum below £200. In this case a workman was injured before the 1923 Act came into operation but died after it was operative, and the employers disputed a claim for compensation. They did so on the ground that during a period of over six years they had paid to the workman, now deceased, a sum of £363 in weekly payments and extra payments under the War Addition Acts of 1917 and 1919, and they urged that what they had already paid exceeded the sum payable under the Act. The House of Lords held that the 1923 Act did not apply to a workman injured before but dying after its commencement. Lord Sumner's judgment shows that to make the Act retrospective would have serious consequences. Before the 1923 Act an employer who had on his books a liability to make weekly compensation would be able to estimate his contingent liability if the workman died. Week by week in this case the employer had written off his liability until it reached zero. The 1923 Act greatly extends benefits and liabilities, and there are no words in it which make it retrospective so as to upset vested rights and liabilities. A Court of Appeal decision on the 1925 Act may be noted in Athey v. Pickerings Limited (136 L. T. Rep. 535; (1927) W. N. 11). The workman died on the 30th April 1926, leaving a widow, in respect of whom the defendants paid £300 into court. On the 9th July she gave birth to a posthumous child, and the question then arose whether under sect. 8 (3)

66

66

the child's allowance should be calculated for the period of fifteen years from the workman's death or for the period between the death and the date when the child became fifteen. The point has importance because the Act took effect on the 1st May 1926. The Court of Appeal held that the statute had for its terminus a quo, the death of the workman, and for its terminus ad quem, the date when the child attained fifteen, and therefore compensation was payable on that basis. The amount under the Act is a considerable one, being an allowance in respect of each child of a sum equal to 15 per cent. of the amount arrived at by multiplying two pounds by the number of weeks between the death and the child attaining fifteen. Richards v. United National Colleries Limited (163 L. T., Jour. 492) raised a question of a workman's right to travelling expenses when an employer has applied for the examination of a workman by a medical referee and has obtained an order. It has been held by the Court of Appeal that there was no liability on an employer to make any initial outlay by tendering anything to the workman before he had incurred expense. Par. 9 of the Regulations as to certifying surgeons provides that an employer should undertake to pay reasonable travelling expenses incurred by the workman in attending for examination by the medical referee, but Lord Hanworth felt that this was somewhat to negative liability before expense, since it was an undertaking to pay something previously incurred by the workman. The House of Lords dealt with a claim which they stigmatised as a perfectly preposterous claim" in Scott v. London and North-Eastern Railway (136 L. T. Rep. 290. A man was killed on the railway. He was the husband of a woman who before her marriage to him had had illegitimate children. Their father had been made responsible for their maintenance, a sum of 4s. a week being payable in respect of each of them to the mother. The children were boarded out and did not live in the house of the deceased and their mother, but the latter did augment the 4s. a week by giving something from her husband's earnings and by gifts of clothes. There was no child of the marriage of the deceased and this woman. The company at once compensated her for the loss of her husband in the sum of £300, but refused to acknowledge any liability in respect of the illegitimate children, as being the man's dependants. The case on coming before the Lords was treated as a perfectly hopeless claim. Lord Dunedin summed up the whole case by saying that it was, in his opinion, perfectly impossible to have a claim against employers of a deceased workman in respect of a person who does not come within one of the categories of either being a dependant or a member of the workman's family. These children never were members of the family and had no relationship to the deceased. They never were in fact in his family, and finally they were not dependants within the meaning of sect. 13 of the 1906 Act. This definition has not been extended by sect. 2 of the 1923 Act, in which there is reference to children under fifteen. The Court of Appeal, whose decision was affirmed, had dealt with this point, holding that illegitimate children and grandchildren were included, but these were limited to natural relations in blood to the deceased under sect. 13 of the 1906 Act. An echo of the industrial upheaval of last year was heard by the Court of Appeal in Hamilton v. Shelton Iron Steel and Coal Company (136 L. T. Rep. 427). Three men had been incapacitated by accidents and had been given light work. H. received more than his pre-accident wage, while L. and received a little less, and were awarded corresponding compensation. On the 23rd April 1926 the employers posted notices that, owing to the cessation of the mining subsidy, wages must be reduced. On the 30th April the strike or lock-out began, but the three men presented themselves for work and were informed that owing to the other men's action no work was open to them. H. then claimed compensation and L. and T. applied for a review of their weekly payments. It was held that as the three men had not refused to work the right to compensation survived, but that if they had refused so to do owing to the labour disturbance no compensation would have been payable. The employers were left with the onus to show that compensation could be diminished by availability of work, and this onus was not discharged by their showing that the lack of work was due to the workmen and not to the employers. It is important to note some words at the close of the judgment of Mr. Justice Atkin, as this decision is a test case brought to guide the parties in other cases arising out of

T.

the same governing facts. The learned Lord Justice observes that it cannot fix the rights of all injured miners. Questions of fact in each case will sway the rights of the parties. Robertson v. Owners of Steamship Appalachee (136 L. T. Rep. 488) turns on facts relating to sailors returning from leave on shore and being drowned on the way. The men went ashore on leave with orders to return on the next day at 6.15 a.m. A launch was provided by the ship to take the men ashore, but its last journey back to the ship would be at 8 p.m. on the day before the men were due back. They returned by dinghy propelled by a scull borrowed from an inn, but the craft was crazy and sank and the men were drowned. It was argued that the men were in the dinghy solely for the purpose of returning to duty. The Court of Appeal held that, while the men were ashore, and when they tried to return on board there was a continuance of the contract of service, but that the actual employment was not continued while they were ashore, but it was noted that there was no obligation, express or implied, to use this particular boat, although there might have been an obligation on the owners and on the sailors in the case of the launch. The Court of Appeal held that it would not be right to say that it was the employment which took the sailors to the place of accident in respect of the particular boat which had been used. The boat could not be treated as a part of the owner's plant in respect of which liability could arise. Lord Justice Atkin decided thus with regret, realising that the decision removes from the sphere of the Acts risks specially incidental to seamen. The expression, the " necessaries of life," was considered by the House of Lords in connection with the subject of dependency in the case of Welsh Navigation Steam Coal Company Limited v. Evans (ante, p. 64; (1927) W. N. 222). A miner had lost his life by an accident, and his father and mother claimed as dependants. The facts showed that the deceased earned 33s. 1d. a week and that he lived with his parents. The father earned 84s. 9d., and another son who lived in the house earned 77s. 9d. The deceased was in the habit of handing his earnings to his mother, by whom he was given 5s. a week for pocket money. There were savings of £500. On these facts it has been held by the House of Lords that the parents could not be said to be dependants looking to the deceased for the provision of the ordinary necessaries of life suitable to persons in their class and position. Lord Dunedin considered the expression as connoting food, clothing, and shelter and the concomitants necessary with them. It is very important to notice a sentence in his judgment upon the construction of it. It must not be taken to mean that where there was a capital sum invested representing savings there could be no contribution so long as that capital sum was unexhausted. What was to be looked at was the family income, and that income did not represent the touching of capital.

In McFarlane v. Hutton Brothers Limited (136 L. T. Rep. 547) the question was whether there was an "accident when a stevedore, while shovelling iron ore out of a steamer's hold, was suddenly seized with pain in the heart. Resting a short time he resumed work, but a second seizure supervened, and he died in a few minutes. A post-mortem revealed a disease of the coronary arteries of the heart, which at some time or another, sooner or later, leads to a fatal seizure. The County Court judge held that the widow could make no claim, as death was due to disease and not to accident, and that no sudden strain had brought on the fatal attack. The Court of Appeal have reversed this holding, that there had been an internal accident, and they used the word "accident as denoting some unlooked for mishap or some untoward event which is not expected or designed, and they declined to narrow it to something fortuitous arising necessarily out of exterior or external causes. "The true fact," says Lord Hanworth, appears to be this: That if there is an unexpected personal injury arising from some physiological condition set up in the course of the work, that may be described as an accident even although there is at the moment nothing unusual or particular which sets it up." The familiar words" arising out of and in course of" the employment crop up year by year with ever-varying accompaniments of facts. In Pruce v. Davey (136 L. T. Rep. 601) the Court of Appeal held that the accident did not occur within those words. The deceased in this case was a shop assistant who had his tea in the shop and went across the road for milk. While doing so he was run over and died shortly afterwards. He could have got his tea out if he had liked and he paid himself for his milk. It was held

66

by the Court of Appeal that the accident did not arise in pursuance of any duty owed to the employer.

Court

The House of Lords decision in Blatchford v. Staddon and Founds (137 L. T. Rep. 257; (1927) A. C. 461) deals with a most practical matter. The workman here was a painter who was claiming compensation from his late employers, a firm of builders, in respect of lead poisoning. He first suffered from it in 1918 when he was in the Navy. He worked as a painter in 1920, and from early in 1923 to July 1924. In Oct. 1924 he entered the respondent employer's service and left in December suffering from a complaint diagnosed as cardiac, but which turned out to be lead poisoning. In July 1925 the certifying surgeon certified this complaint and disablement from full earning capacity. The employers appealed without success on the certificate. The workman argued that he could claim from the respondents under sect. 8 (1) of the 1906 Act, as they were the last employers who had employed him within twelve months previous to the disablement in the employment to the nature of which the disease was due. The employers contended that the disease was not contracted in their employment nor aggravated nor accelerated during its continuance. The County judge and the Court of Appeal were both in the employers' favour, but the House of Lords have reversed them and held that the workman under sect. 8 (1) entitles himself to compensation by proving that his last employers' work during the twelve months previous to disablement was of the same nature as the work to which the disease was due. Lord Sumner draws attention to the circumstance that the last employer is given an express power to bring in other employers and to prove them liable, and the last employer's action, if successful, may result in the compensation becoming recoverable in the proceedings already begun by the workman from that prior employer, who thus becomes the employer from whom compensation is to be recoverable. The difficulty in these cases is extreme. When an accident happens there is a clear ascertainable point of time, and the employer at that moment can be identified. In these disease cases it is often impossible to say when the seed is sown, for in these the indicia appear imperceptibly, and there are interludes of recovery and relapse between which the workman passes through various employments. The curious feature here is that the workman suffered in 1918 from lead poisoning in the Navy employment, and was also so suffering when he entered the respondents' service, and the latter were in fact in no wise parties to the disease being contracted. The man was, however, in their employ on the 13th July 1925 when certified by a doctor to be suffering from lead poisoning, and the effect of sect. 8 (1) is to make disablement equivalent to an accident, and the House of Lords, with this concatenation of fact and law were compelled to hold an employer liable whose service had nothing whatever to do with the workman's ill-health. Evans v. Scahill (137 L. T. Rep. 161; (1927) W. N. 67) is a House of Lords decision dealing with the cessation of incapacity after an industrial disease. A miner had suffered from nystagmus, and was given surface work by employers, being compensated on the footing of partial incapacity. After some time the medical referee certified that the miner was not suffering from that disease, but that he was hyperotic, and suffering from incipient cataract. He also certified that the man could only do surface work, and that his incapacity was not due to accident. Compensation was stopped, but shortly afterwards the certifying surgeon again certified nystagmus, and this was afterwards affirmed by the medical referee. It is apparently a fact known to doctors that the symptoms of nystagmus come and go in a somewhat baffling fashion. The House of Lords held that the certificate of a medical referee was made conclusive by par. 15 of the first Schedule of the 1906 Act, and that it must be applied strictly. The view taken of the case by the County Court judge was affirmed in that the disease of nystagmus was contracted and that the award was to be made on the footing of a continuance of the original incapacity. Another industrial disease case which introduced in addition some further legal complications came before the Court of Appeal in Broome v. Minister of Labour (136 L. T. Rep. 322). The applicant was an ex-soldier with wound- disability, who had been instructed in a Government Instructional Factory, receiving a subsistence allowance and travelling expenses, meanwhile surrendering his disablement pension. This man contracted dermatitis, and was suspended under sect. 43 (1) (ii.) of the Workmen's Compensation Act 1925.

66

It was held, however, that the certifying surgeon had no power to suspend him from employment under that section, and his claim failed, as the conditions had not been fulfilled upon which compensation would be payable. The Court of Appeal held further, dubitante, that the applicant was not a workman," but in doing so it observed that this point had not been fully argued before it, and the matter can scarcely be said to be concluded under the circumstances. Davies v. Baldwins Limited (136 L. T. Rep. 462) is another Court of Appeal decision, turning upon cataract through exposure to the rays of light and heat from molten metal. The relevant order by which the 1906 Act was made to apply contains a proviso under which the worker suffering from this disability is only allowed compensation for six months in all, and for not more than four months unless he had undergone an operation. This is followed, however, by another proviso, that where it is shown by the medical referee that the operation could not be performed on medical grounds within four months from the disablement, or that after undergoing the operation the workman was still disabled, after the expiration of the six months, compensation could be continued for such further period and subject to such terms as the judge or arbitrator should determine. The workman in this case had an operation, more than six months after disablement caused by working with whitehot ingots, and the Court of Appeal held that the proviso was not governed by the operative words which contained an absolute limit of six months, and therefore as the incapacity still continued, compensation could be claimed for the continuing incapacity. Medical reasons for postponing an operation would include, it would seem, the absence of a bed in a surgical ward.

This brings to a close our review of the chief decisions of the past year as seen through the eyes of the general practitioner. Once again there is afforded to every thoughtful reader an opportunity of appraising the infinite patience and skill displayed in the courts in the mental acquisition and the marshalling of facts, oftentimes of the most bewildering complexity, and following upon this the ripened judgment wherewith to apply to them the relevant principles of law. We can observe also, markedly so in the motor case before Mr. Justice Swift (Aria v. Bridge House Hotel Limited, 137 L. T. Rep. 299) how it retains its elasticity and capability to deal with some modern problems without the aid of legislative changes. Then we can see also the modern statutes framed to meet the new problems which force themselves upon a community extricating itself with difficulty from the confusion of a period of industrial and social transition. Their interpretation, thanks to modern parliamentary drafting, is a task at times of well-nigh insuperable difficulty, but nevertheless, there is abundant justification for the confidence so universally felt in the sagacity and the scrupulous fairness of those whose duty it is to expound and administer the law.

THE CONVEYANCER

The New Conveyancing-The Legal Estate

ONE of the most drastic sections in the Law of Property Act 1925, and as to the propriety of which opinions may differ, is sect. 42, which provides (among other things) that a stipulation that a purchaser of a legal estate in land shall accept a title made with the concurrence of any person entitled to an equitable interest shall be void if a title can be made discharged from the equitable interest without such concurrence: (a) under a trust for sale; or (b) under this Act, or the Settled Land Act 1925, or any other statute ": (sub-sect. (1). Further, that a stipulation contained in any contract for the sale or exchange of land made after the commencement of this Act, to the effect that an outstanding legal estate is to be traced or got in by or at the expense of a purchaser or that no objection is to be taken on account of an outstanding legal estate, shall be void" (sub-sect. (3); and that “a vendor shall not have any power to rescind a contract by reason only of the enforcement of any right under this section " (sub-sect. (8). As pointed out in Wolstenholme and Cherry's Conveyancing Statutes, 11th edit., p. 196, the object of sub-sect. 1 is to enable a purchaser to insist on the best title being given to him, and by the best method; and that as legal estates are made the basis of conveyancing sub-sect. (3) was necessary. It sometimes happens, however, that it is very difficult to ascertain where the legal estate is, and in Second Sheet

those cases, particularly in dealing with small properties, the aforesaid provisions may work hardship. Again, why should the concurrence of a beneficiary be barred, whilst a separate release by him is permissible? No doubt the Act endeavours to mitigate the rigour of sect. 42, by sect. 2 (2) of the Act, which provides that "Where the legal estate affected is not, when the equitable interest or power is created, subject to a trust for sale or a settlement, then, if the estate owner, whether before or after the commencement of this Act, disposes of his estate to trustees on trust for sale, and at the date of a conveyance made after such commencement, under the disposition upon trust for sale the trustees (whether original or substituted) are either (a) two or more individuals approved or appointed by the court or the successors in office of the individuals so approved or appointed; or (b) a trust corporation, such equitable interest or power shall, notwithstanding any stipulation to the contrary, be overreached by the conveyance, and shall according to its priority, take effect as if created or arising by means of a primary trust affecting the proceeds of sale and the income of the land until sale." But that mode of procedure involves finding either two trustees approved or appointed by the court, or their successors or a trust corporation. There is also an alternative method of overreaching equitable interests provided by sect. 21 of the Settled Land Act 1925, which provides that where a person of full age is beneficially entitled in possession to a legal estate subject to any equitable interests or powers, then for the purpose of overreaching such interests or powers, he may, notwithstanding any stipulation to the contrary, by deed (which shall have effect as a principal vesting deed within the meaning of this Act), declare that the legal estate is vested in him on trust to give effect to all equitable interests and powers affecting the legal estate, and that deed shall be executed by two or more individuals approved or appointed by the court or a trust corporation, who shall be stated to be the trustees of the settlement for the purposes of this Act." It is not, however, easy to see under what circumstances that section can be usefully resorted to (but see Wolstenholme and Cherry's Conveyancing Statutes, 11th edit., p. 97). Although purchasers may have a right to insist on the best title being given to them, and by the best method, there appears to be nothing to prevent them from waiving that right, and accepting the concurrence of the persons entitled to the equitable interest, and as the purchasers would be getting the legal estate in fee simple from the estate owner, and as the overriding equitable interest would be bound by such concurrence as aforesaid, the title would seem to be unimpeachable. A separate release, however, is recommended.

Appointments of New Trustees of Settlements of Land

THE procedure on the appointment of new trustees of settled land, or of conveyances in trust for sale under the New Law of Property Acts, is somewhat special. By sect. 35 (1) of the Trustee Act 1925 it is provided that appointments of new trustees of conveyances on trust for sale on the one hand, and of the settlements of the proceeds of sale on the other hand, are (subject to any order of the court) to be effected by separate instruments, but so that the same person shall become the trustee of the conveyance on trust for sale as has become the trustee of the settlement of the proceeds of sale, and by sub-sect. (2) it is provided that where new trustees of a settlement (that means settled land trustees) are appointed, a memorandum of the names and addresses of the persons who are for the time being the trustees thereof for the purposes of the Settled Land Act 1925 is to be endorsed on or annexed to the last or only principal vesting instrument by and on behalf of the trustees of the settlement, and such vesting instrument is for that purpose to be produced by the person having the possession thereof to the trustees of the settlement when so required; and by sub-sect. (3), where new trustees of a conveyance on trust for sale relating to a legal estate are appointed a memorandum of the persons who are for the time being trustees for sale is to be endorsed on or annexed thereto by or on behalf of the trustees of the settlement of the proceeds of sale, and the conveyances for that purpose to be produced by the persons having the possession thereof to the last-mentioned trustee when so required. By sect. 35 (1) of the Settled Land Act 1925 it is provided that whenever a new trustee for the purposes of that Act is appointed of a trust instrument, or a trustee thereof for the purposes aforesaid is discharged from the trust without a trustee being appointed, a deed is to be executed

new