Board of Referees a counter-statement with reference to the matter:

(e) The Board of Referees shall in any such case take into consideration the declaration, and the certificate, and the counter-statement, if any, and shall determine whether there is or is not a prima facie case for proceeding in the matter;.

(f) The determination of the Board of Referees under this paragraph shall be final and conclusive, and, where the Board of Referees determines that there is a prima facie case for proceeding, the notice or direction aforesaid shall have effect as if it had been issued or given on the date on which notice of the determination of the Board is given to the company.

But whether it carries out such purpose or not it contains highly objectionable features which can hardly be accepted by the House of Commons. At the present time where a company is aggrieved an appeal lies to the Special Commissioners, and if either the company or the Commissioners of Inland Revenue are dissatisfied with the determination of the Special Commissioners, they can appeal to the Board of Referees. It will be noticed that, under the suggested amendment, in the cases with which it deals, the Board of Referees, where there is a difference of opinion, have to determine whether or not there is a primâ facie case for proceeding in the matter. The dispute will then go to the Special Commissioners, and the appeal from them will be back to the Board of Referees, who have already decided finally and conclusively that there is a primâ facie case for proceeding. Such a proposal seems so outrageous that we feel we may have placed a wrong construction upon the mass of verbiage that is at present for consideration by the Legislature. But if we are wrong it would be interesting to know what the new clauses and amendments really mean. Further, if it is desired in the future to discover what the law is concerning "super-tax on undistributed income of certain companies," which are the catch-words of the original section, it will be necessary first of all to consider the original sect. 21, which has nine sub-sections, and the First Schedule to the Act of 1922, which contains twelve provisions for carrying the section into effect. The taxpayer will then have to turn to the Finance Bill of this year, which amends both the section and the schedule. And this forms a very good example of official attempts to simplify the income tax.

Clause 31, which we printed last week (163 L. T. Jour. 559), is also to be amended. In sub-clause (3) ten per cent. is to be substituted for five per cent., and for sub-clause (4) the following is to take its place:

For the purposes of assessment to super-tax in the case of any such individual, the income from any assets to which this sub-section applies shall be deemed to accrue from day to day, and in the case of the sale or transfer of any such assets by or to him shall be deemed to have been received as and when it is deemed to have accrued.

Provided that an individual shall not be liable to be assessed to super-tax under this section in respect of any such income if he proves to the satisfaction of the Special Commissioners that the avoidance of super-tax was exceptional and not systematic, and that there was not in his case in any of the three next preceding years any such avoidance of super-tax as is described in the provisions of the last preceding sub-section.

It is hardly to be supposed that changes of this description will in any way satisfy the numerous and well-justified criticisms that have been made upon the present Government proposals. All through the new clauses will be found an attempt to substitute

official for popular control, such as it was sought to obtain in 1921 but was then defeated.

Another extraordinary example of complicated drafting and legislation by reference is to be found in clause 26, which is supposed to give relief in respect of losses in business set up after the 6th of April 1923. It is the proviso to the first sub-clause, and is as follows :

Provided that the amount of the deduction to be allowed to any person under this section in respect of the assessment for either of the said years shall not be in excess of the amount by which the aggregate amount of the assessments made on him in respect of the trade, profession or vocation for the period from the first setting up thereof until the end of that year (as reduced by any deduction under this section or by any deduction allowed under Rule 13 of the Rules applicable to Cases I. and II. of Schedule D on account of losses arising in the trade) is greater than the amount by which his aggregate profits and gains from the trade, profession or vocation for the said period exceeds the aggregate amount of his losses therefrom during that period, after deducting from those losses any loss or portion of a loss which has been or can be carried forward under section thirty-three of the Finance Act, 1926, and the anount of any loss or losses in respect of which relief is given under section thirty-four of the Income Tax Act, 1918.

How any ordinary tax-paying trader can be expected to understand his position under legislation of this description passes comprehension.

The Companies Bill

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ON Tuesday last the House of Lords considered on report the amendments made in the Companies Bill in Committee, and again subjected that useful and important measure to a thorough revision. A great many of the amendments made at this stage were merely drafting amendments, but others were of more substance, improving the Bill where necessary, and removing some hardships that might arise, as disclosed by the various discussions. In clause 25 a new sub-clause was inserted by which the giving of professional advice is not to constitute a person a director of the company within any provision in the Bill-and this also would deal with clause 81-for under the original clause the expression director" is to include "any person in accordance with whose directions or instructions the directors of the company were accustomed to act." On the consideration of clause 71, which relates to the prosecution of delinquent directors, the question of professional privilege was raised. Lord Cave pointed out that the question arose also on clause 43, which amends sect. 109 of the principal Act and relates to the investigation of the affairs of companies by inspectors, and the Lord Chancellor proposed to put down a new clause for third reading in the following form: "Where any proceedings are instituted under this Act against any person by the Director of Public Prosecutions nothing in this Act shall be taken to require any person who has acted as solicitor for the defendant to disclose any privileged communication made to him in that capacity." Some provision of this kind was clearly necessary, for, in the clause, the expression agent is to be deemed to include any solicitor of the company. Clause 72, which contains provisions as to the liability of directors, &c., received some amendment, and, although in the first sub-section an amendment to insert the word "knowingly before the word

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guilty" was withdrawn, a new sub-section was accepted on the motion of the Lord Chancellor as follows:

Where any case to which the said Section two hundred and seventy-nine applies is being tried by a Judge with a jury, the Judge, after hearing the evidence, may, if he is satisfied that the defendant ought in pursuance of the said section to be relieved either in whole or in part from the liability sought to be enforced against him, withdraw the case in whole or in part from the jury and forthwith direct judgment to be entered for the defendant on such terms as to costs or otherwise as the Judge may think proper. And a further clause was also accepted which allows a director or officer of the company, where he considers that a case might be made against him for negligence, &c., to apply to the court for relief on his own motion. Clause 85, the "share-hawking clause," was still further defined. As originally drafted, the first two sub-clauses were as follows:

85.-(1) It shall not be lawful for any person to go from house to house offering shares for subscription or purchase to any member of the public or otherwise by oral solicitation of any kind or in any place to invite or endeavour to induce any member of the public to subscribe for or purchase shares.

(2) Subject as hereinafter provided, it shall not be lawful to make an offer in writing to any member of the public of any shares for purchase unless the offer is accompanied by a statement in writing (which must be signed by the person making the offer and dated) containing such particulars as are required by this section to be included therein and otherwise complying with the requirements of this section:

and in committee were amended in the following form :

85.-(1) It shall not be lawful for any person to go from house to house offering shares for subscription or purchase to the public or any member of the public.

(2) Subject as hereinafter provided, it shall not be lawful to make an offer in writing to any member of the public of any shares for purchase unless the offer is accompanied by a statement in writing (which must be signed by the person making the offer and dated) containing such particulars as are required by this section to be included therein and otherwise complying with the requirements of this

section.

The House of Lords have now added an amendment to sub-clause 1, inserting the words "House' in this sub-section means private residence," and in subclause 2, after the word "public" have inserted 66 other than a share dealer or a share broker." The only other important amendment made on report to this clause was to allow imprisonment for six months to be inflicted, with a fine as an alternative, for the first offence. The reason for this amendment was to enable an order of deportation to be made against any alien contravening the section, and there is no doubt that the clause, as amended both in committee and on report, is much more workable than as originally drafted, and will be quite efficacious for dealing with the practices it was designed to prevent. These are some of the chief changes made this week, but others dealing more particularly with company management should be equally acceptable.

Public Trustee Report

WHETHER or not financial stability has been found in this department remains to be seen, for in the nineteenth general report covering the twelve months ending March last a surplus of £11,185 is shown. In the post-war years of 1919-20 and 1920-21 there were heavy deficits amounting to £93,031 and £98,537 respectively. Fees were then

raised, and a last deficit of £41,295 in 1921-22 became a surplus of £74,522 in 1922–23. Fees were reduced in January 1926, and the margin between expenses and receipts is now as we have stated. The position is thus cheerfully stated by Mr. Simpkin: "The year's working has been entirely satisfactory, and I have nothing of special interest or importance to report." We notice also the report states "Slight further economies have been effected during the year by (a) the reduction of staff where possible,” but, as the number employed in all capacities is now 756 as against 759 during the preceding twelve months, the economy under this head must be slight, especially as salaries, wages and allowances have increased from £202,182 to £203,936.

DIPLOMATIC PRIVILEGE

INTERESTING questions as to diplomatic privilege were raised in Musmann v. Engelke (post, p. 6), a case which was recently before the Court of Appeal. The point in that case concerned the effect of a certificate from the Foreign Office, that the defendant's name appeared on the list of persons comprising the staff of the German Embassy submitted to His Majesty's Government by the German Government.

The defendant had been sued for rent, and entered an appearance under protest, claiming diplomatic privilege. He produced the above certificate from the Foreign Office, contending that thereby he was entitled to diplomatic privilege without further inquiry. The plaintiff, however, applied for an order that the defendant should appear, and be cross-examined in order to ascertain whether he was in fact entitled to such privilege, it being alleged that the defendant was a consular secretary, at one time employed at the German consular office at Bedford-place, who, although now employed at the German Embassy, was only so employed because his consular work had been transferred there from Bedford-place.

If the plaintiff's contentions in this respect were correct, then, in reality, the defendant would not have been entitled to any diplomatic privilege at all, since consuls are not entitled to such privilege. Thus in Heathfield v. Chilton (4 Burrows, 2016) Lord Mansfield said: "The law of nations does not take in consuls or agents of commerce; though received as such, by the courts to which they are employed "; and in Viveash v. Becker (3 M. & S. 284) it was held that a resident of London who was appointed and acted as consul to a foreign prince was not exempted from arrest." The reason of this. distinction between a consul and a diplomatic agent is that a consul, although a public agent of the State by which he is appointed, is strictly only an agent for commercial purposes, and has no authority to represent the sovereign of the State appointing him in the negotiations of that sovereign with foreign States: (The Anne, 3 Wheat. 435; The Indian Chief, 3 C. Rob. 12.)

On the other hand, if a person is otherwise entitled to diplomatic privilege, he will not lose such privilege by reason of the fact that he has consular duties as well. Thus in Parkinson v. Potter (16 Q. B. Div. 153) the defendant, who was the Consul-General of Portugal, but who was proved to have been treated at the embassy as an attaché, and to have performed slight services for the ambasador, at whose disposal he had placed himself, was held, notwithstanding that his chief appointment was that of Consul-General, to be entitled to privilege.

Strictly, diplomatic immunity is only enjoyed by the diplomatic agent who is the accredited representative of his State, but this immunity is also extended to his staff (e.g., secretaries, attachés, counsellors, and other officers, even though not personally accredited) to the members of his family residing with him, and to his suite (e.g., domestics, and other persons in the fixed service of the diplomatic agent or the members of his suite or staff).

Such other persons to whom diplomatic privilege is extended do not enjoy such privilege directly, because these other persons do not in any way represent their State; such privilege as they do enjoy being derived entirely from the diplomatic representative of their State, i.e., the ambassador, minister, or other accredited agent. As Bluntschli puts it in art. 145

of his Code: "The family, the staff, the suite, and the servants of him who has the right of exterritoriality enjoy the same immunity as himself. His suite have the right but indirectly, and on account of him to whom they are attached." (Cf. also Parkinson v. Potter, 16 Q. B. Div., at p. 160.)

To consider now the nature of the evidence upon which the courts generally act in such cases, and the further question whether statements by the Foreign Office or the Law Officers of the Crown, that His Majesty's Government recognise the existence of diplomatic immunity in any given case, are to be regarded by the courts as conclusive.

It may be taken as a general proposition that the existence of facts on which a claim for diplomatic immunity is based are to be proved in the same manner as any other facts. Statements made by a responsible official of the proper Government department however, as a general rule, will be acted upon by our courts. To accept such statements of facts, upon which the question of diplomatic immunity is to be based is one thing, but it is quite another to accept such statements when they are to the effect that such immunity does exist, and this appears exactly to have been the point in issue in Musmann v. Engelke. Although the Attorney-General himself appeared in that case and informed the court that the defendant had been recognised by the Foreign Office as being a member of the suite of the German Ambassador, the court (by a majority) nevertheless refused to recognise that statement by the Attorney-General, or the certificate of the Foreign Office, as conclusive on the question of the existence of diplomatic immunity. It should be observed, however, that the court itself did not apply for information, and that the intervention of the Attorney-General was due to the fact that the German Embassy had approached the Foreign Office in the matter.

There have been cases in which the courts have acted on authoritative statements from the Foreign Office. In Re Suarez (118 L. T. Rep. 279; (1918) 1 Ch. 176) a letter from the Foreign Office under the hand of an Assistant Secretary of State stating that a Foreign Minister's name had been removed from the Diplomatic List was held sufficient evidence that the Minister had ceased to hold diplomatic office at the date of the letter.

In Heathfield v. Chilton (sup.), there are dicta by Lord Mansfield to the apparent effect that statements by the Attorney-General that the Crown considered a person entitled to the character of a public Minister (e.g., Foreign Ambassador) would be accepted by the court.

There does not appear to be any reported case, however, in which the courts have accepted statements by the proper Government department that a person was a member of an ambassador's staff or suite, or even the accredited representative of a foreign State, and as such entitled to diplomatic privilege. Such cases as there are (with the exception of Re Suarez and the dicta in Heathfield v. Chilton) refer to sovereigns or sovereign States, and in these the courts have regarded communications from a responsible department as conclusive.

Thus in Mighell v. Sultan of Johore (70 L. T. Rep. 64; (1894) 1 Q. B. 149), it was held that a certificate from the Colonial Office as to the status of the Sultan of Johore was conclusive. In his judgment Lord Esher, M.R. said: "[The Colonial Secretary] is in colonial matters the adviser of the Queen, and I think the letter has the same effect for the present purpose as a communication from the Queen. It was argued that the judge ought not to have been satisfied with that letter, but to have informed himself from historical and other sources as to the status of the Sultan of Johore. It was said that Sir Robert Phillimore did so in the case of the Charkich (L. R. 4 A. & E. 59). I know he did, but I am of opinion that he ought not to have done so; that when once there is an authoritative certificate of the Queen through her Minister of State as to the status of another sovereign, that in the courts of this country is decisive." Again in Foster v. Globe Venture Syndicate Limited (82 L. T. Rep. 253, (1900) 1 Ch. 811), it was held that the courts would take judicial cognisance, not only of the status, but also of the boundaries of foreign States, and that they would if in doubt apply for information to the Secretary of State for Foreign Affairs, whose reply would be conclusive.

So again in The Gagara (122 L. T. Rep. 498; (1919) P. 95) the courts accepted the statement of the Foreign Office, presented by the Attorney-General to the court, that this country had recognised the Esthonian National Council as a de facto independent body, and that it had accordingly the status of a foreign independent sovereign.

An examination of these cases, therefore, clearly shows that statements by the proper Government department as to the sovereign status of individuals, or States, or as to the boundaries of States, will be accepted by the courts as conclusive, and it would seem that the above principle must equally apply to statements made by a Government department as to whether or not a person was the accredited representative of his sovereign. Further than this the court clearly will not go, and they will not, as happened in Musmann v. Engelke, necessarily treat as conclusive statements proceeding from such sources, as to the status of persons who are alleged to be members of the suite or staff of a foreign sovereign or of his accredited representative. In other words, the courts refuse to extend the doctrine of judicial notice in its application to this particular type of case.

In such cases, therefore, the courts will determine the question of the existence or otherwise of diplomatic privilege on the evidence adduced before it, and will not necessarily accept as conclusive statements made by Government departments or any of His Majesty's Ministers.

The reason of the distinction between these cases was thus expressed by Lord Justice Scrutton in his judgment in Musmann v. Engelke: " The Crown knew whom they had recognised as independent sovereigns or as ambassadors. But the Foreign Office had no knowledge of the internal arrangements of an embassy; as, for instance, whether a particular person was a chorister or a cook, or what exact work he did, except such knowledge as they derived from a statement by the ambassador or his representatives."

THE CONVEYANCER

Settled Land Act 1925-Law of Property (Amendment) Act 1926-Tenants in Common for Life

THERE would appear to be a conflict between sub-clause 3 of par. 1 of Part IV. of the First Schedule to the Law of Property Act 1925, and sub-par. (4) of the said par 1, added by the Law of Property (Amendment) Act 1926-Schedule. Par. 1 (3) provides, in effect, that where immediately before the commencement of the Act land is held, at law or in equity, in undivided shares vested in possession, if the entirety of the land is settled land (whether subject or not to incumbrances affecting the entirety, or an undivided share) held under one and the same settlement, it shall by virtue of the Act vest, free from incumbrances affecting undivided shares, and from incumbrances affecting the entirety, which under the Act or otherwise are not secured by a legal term of years absolute, in the trustees (if any) of the settlement, as joint tenants upon the statutory trusts. Sub-par. 4, however, provides that where immediately before the commencement of the Act there are two or more tenants for life, of full age, entitled under the same settlement in undivided shares, and after the cesser of all their interests in the income of the settled land the entirety of the land is limited so as to devolve together (not in undivided shares), their interests shall, but without prejudice to any beneficial interest, be converted into a joint tenancy, and the joint tenants and the survivor of them shall, until the said cesser occurs, constitute the tenant for life for the purposes of the Settled Land Act 1925 and that Act. If, then, there are two or three tenants for life of settled land and after the cesser of their interests the entirety is limited so as to devolve together, a sale could be effected either by the trustees of the settlement under the statutory trusts under sub-par. 3, or by the tenants for life under sub-par. 4, subject, of course, in that case to a proper vesting deed being executed. Presumably the latter provision will supersede the former. The point did not really arise in Re Colyer's Farningham Estates (163 L. T. Jour. 299) because it was held that sub-par. 4 did not apply, as the property was not certain to devolve together.

War Stock-Trustees Investing in

Ir is thought that trustees may not always be alive to their powers of investment under the War Loan (Trustees) Act 1915 (5 & 6 Geo. 5, c. 56), and the Finance Act 1917 (7 & 8 Geo. 5, c. 31, s. 35), as amended by the Finance Act 1918 (8 & 9 Geo. 5. c. 15, s. 39). Sect. 1 of the first-mentioned Act is as follows: "Any trustees who are holders of Consolidated 21 Per Cent. Annuities, 2 Per Cent. Annuities, or 24 Per Cent. Annuities, or 31⁄2 Per Cent. War Stock, or War Bonds,

issued under the War Loan Act 1914 (in this Act referred to as convertible securities), may borrow, as provided by this Act, such sums as may be requisite for the purpose of subscribing for such an amount of the loan issued under the War Loan Act 1915 as will enable them to obtain securities under that Act in exchange for all or any of the convertible securities held by them, and for paying the expenses of such borrowing; and any money so borrowed shall be applied in subscription to the loan under the War Loan Act 1915, and in payment of such expenses. Any such sums may be borrowed on the security of the convertible securities held by the trustees, and the securities obtained by them by means of subscription to the loan under the War Loan Act 1915." By sect. 3 of the same Act trustees were indemnified from any loss resulting from any investment in the loan under the War Loan Act 1915. That Act, however, only applied to a particular War Loan. The Act of 1917, s. 35, was a more elaborate version of the Act of 1915, so as to apply it to any Government Loan raised for the purpose of the present war." Further trustees were thereby authorised to make such investment as aforesaid notwithstanding anything in the instrument creating the trust. The Act of 1917 was still further extended by the Act of 1918 authorising trustees to invest as aforesaid notwithstanding anything to the contrary in any instrument creating the trust and without the consent of any other person notwithstanding that such consent is required by the instrument creating the trust." There appears to be only one authority upon the aforesaid enactment, namely Re Head (146 L. T. Jour. 457).

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There

a will of a testator by clause 7 thereof provided that the trustees should invest the residue in or upon any of the public stocks or funds or Government securities of the United Kingdom or India, or any Colony, or other securities named "provided that not more than £500 should be invested in any one security." The trustees in good faith invested £4000 in 5 Per Cent. War Loan, and were desirous of investing further sums in that loan or in National War Bonds. Accordingly they issued an originating summons raising the question "whether it was and is competent for the plaintiffs as trustees of the testator's will, in view of the provisions of the War Loan (Trustees) Act 1915, and the Finance Act 1917, s. 35, sub-s. (1), notwithstanding the provisions of clause 7 of the testator's will, to invest a sum or sums in excess of £500 in the purchase of War Loan 5 Per Cent. Stock or the other War Stocks issued by His Majesty's Government." Mr. Justice Sargant (as he then was) decided that they were entitled to invest any trust moneys in the Government securities in question, and were entitled to make the previous investment of £4000 in 5 Per Cent. War Loan.

Lunatic Trustees-Power of Appointment

If a trustee becomes a lunatic, the persons in whom the power to appoint new trustees is vested, whether under the express terms of the settlement or under the Act, can replace him, as it has been held that lunacy unfits a trustee to act in the trusts: (see Re East, 1873, L. Rep. Ch. 735; and Re Blake (1887) W. N. 173). Since one effect of the new legislation has been to increase considerably the amount of land held on trust for sale, this power is of importance, and the more so as the Law of Property Act 1925, s. 22 (2), expressly provides that: “if land held on trust for sale is vested in a lunatic, or a defective, either solely or jointly with any other person or persons, a new trustee shall be appointed in his place, or he shall be otherwise discharged from the trust, before the legal estate is dealt with under the trust for sale or under the powers vested in the trustees for sale." In addition to the increase in land held on trust for sale there has been an increase in the number of persons who combine the position of beneficiary and trustee. All land held in undivided shares vests in some persons, generally the beneficial owners, as joint tenants upon the statutory trusts; and this whether the interest, which before 1926 would have been a tenancy in common, was acquired before or after the coming into operation of the Acts. In order to protect such persons who, being both beneficiaries and trustees, become lunatics, and to prevent any appointment adverse to their interests, a new clause has been introduced into the Trustee Act 1925. This clause-sect. 36 (9)—provides that: Where a lunatic or defective, being a trustee, is also entitled in possession to some beneficial interest in the trust property, no appointment of a new trustee in his place shall be made by the continuing trustees or trustee, under this section, unless leave has been given by the Judge or Master in lunacy to make the Second Sheet

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appointment." This subsection has not only altered the procedure in those cases where the trustee has a beneficial interest, but it also means, in all cases where a lunatic trustee is replaced without an order from the Judge or Master being obtained, that a recital should be inserted in the appointment stating that the lunatic was not entitled to any beneficial interest in the trust property in possession. If this is not done a purchaser could not safely accept a title made by the trustees appointed under the power, as it might be invalid if the lunatic was beneficially interested. If the appointment contains such a recital as that suggested above he is protected. Sect. 38 provides that a statement, contained in any instrument coming into operation after the commencement of the Act by which a new trustee is appointed for any purpose connected with land, to the effect that a trustee is unfit to act, or is incapable of acting, or that he is not entitled to a beneficial interest in the trust property in possession, shall, in favour of a purchaser of a legal estate, be conclusive evidence of the matter stated; and in favour of such purchaser any appointment of a new trustee depending on that statement, and any vesting declaration, express or implied, consequent on the appointment, shall be valid. This section protects the purchaser if the appointment contains the proper recitals, but it does not exonerate the appointers from obtaining the necessary order when it is required. If the person in whom the power of appointment is vested is himself a lunatic, the proper course is to apply to the Master in lunacy to appoint some person to exercise the power on behalf of the lunatic: (see Re Shortridge, 71 L. T. Rep. 799; (1895) 1 Ch. 278 ; and Re Fuller, 83 L. T. Rep. 208; (1900) 2 Ch. 551). The costs of such an application are payable, under sect. 60 of the Trustee Act 1925, out of the trust property. Sect. 41 confers on the High Court power to appoint trustees in substitution for a lunatic, and the power of vesting the trust property in the new trustees is now wholly in the hands of such court; and by sect. 54 the concurrent jurisdiction, formerly in the Court of Lunacy, has been withdrawn except in certain specified cases. Enlargement of Mortgage Terms

A CURIOUS question has been raised as to the powers of mortgagees or persons claiming under them to enlarge mortgage terms. Under the Law of Property Act 1925, s. 88 (1), "where an estate in fee simple has been mortgaged by the creation of a term of years absolute limited thereout or by way of legal mortgage, and the mortgagee sells under his statutory or express power of sale," the conveyance operates to vest the fee simple in the purchaser and to merge the term of years. It will be observed that there is no reference to the length of the term, it might be twenty or 3000 years. In either case the sale by the mortgagee under his power would divest the owner of the equity of redemption of his fee simple, and pass it to the purchaser. The section applies to mortgages created before the Act, so that there might be a curious result :-a purchaser who expected to have a term of say twenty or thirty years vested in him would find that he was the owner of the fee simple, and could oust the person who thought that he was the owner thereof. By sub-sect. (2) any such mortgagee who does not sell, but obtains an order for foreclosure absolute in his favour also obtains the fee simple, regardless of the length of the mortgage term. But by sub-sect. (3) "where any such mortgagee acquires a title under the Limitation Acts, he or the persons deriving title under him may enlarge the mortgage term into a fee simple under the statutory power for that purpose discharged from any legal mortgage," &c. In this sub-section the mortgagee may enlarge the mortgage terms "under the statutory power for that purpose.' The statutory powers of enlargement are contained in sect. 153, but only relate to residues unexpired of not less than 200 years of a term which, as originally created, was for not less than 300 years. It would appear, therefore, that under sect. 88 (3) the term must have been for at least 300 years, and at least 200 years must be unexpired, but, if this is so the sub-section in question was unnecessary, as by sub-sect. (3) of sect. 153 it is provided that " this section extends to mortgage terms where the right of redemption is barred." Further, why should a mortgagee who can no longer be redeemed be in a different position from one who has obtained a foreclosure order or from a purchaser from him under his power of sale? We must wait for a decision on the subject, but, until there is one, it will be unsafe to assume that a mortgagee acquiring a title under the Limitation Acts can enlarge any term except such a one as is described in sect. 153 into a fee simple.

NOTES OF NEW DECISIONS

By Our Reporters in the Several Courts
COURT OF APPEAL

Husband and wife-Suit by husband for restitution—Counterpetition by wife for judicial separation-Settlement Agreement for separation and withdrawal of all charges Separation deed to be settled by counsel-Custody of children-Refusal of third person to undertake custody of child-Agreement not thereby rendered impossible of performance.

Appeal from a decision of Bateson, J., ordering a suit for judicial separation to be restored to the list for hearing. The parties were married in 1916, and there were two children of the marriage, both girls, aged ten and seven and a half respectively. In 1926 differences arose, and the spouses separated. The husband petitioned for restitution of conjugal rights, and the wife replied pleading just cause, making certain charges against her husband, and claiming judicial separation. The suit came before Hill, J. on the 10th Feb. 1927, but efforts were made to settle it, and ultimately heads of agreement were signed by the parties, filed and made a rule of court, to be embodied in a separation deed to be settled by counsel on behalf of both parties. Separation was agreed on, and all charges were to be withdrawn. Certain clauses dealt with the custody, maintenance, and education of the children. It was agreed that they should remain with their mother, but the legal custody of the elder girl M. was to be given to the husband's brother, H.J. W. The deed was drafted, but after some correspondence H. J. W. refused through his solicitors to undertake the custody of M. except upon certain terms, one of them being that he must be made a party to the deed. The terms being unacceptable the husband then refused to execute the deed. The wife took out a summons asking that the husband should be ordered to execute the deed, and the husband took out a summons that the case should be ordered to be restored to the list for hearing. Bateson, J. held that, the agreement having broken down, the husband was entitled to have the case restored to the list, and made an order to that effect. The wife appealed.

Held that the appeal must be allowed. The agreement had not broken down and become impossible of performance, merely because a subsidiary clause as to the custody of one of the children could not be carried into effect. The term "custody" did not mean physical custody, but the right to control. The primary issue between the parties was separation or no separation, and that was settled by agreement, which remained a valid operative and useful agreement between the parties. The case must be remitted to the learned judge to deal with as he might think fit, but the order restoring the case to the list for hearing must be discharged. It was undesirable that H. J. W. should be a party to the deed. The case was one which every effort should be made to settle in the interests, not only of the parties, but of the children.

for

[Willis v. Willis. Ct. of App.: Lord Hanworth, M.R., Sargant and Lawrence, L.JJ. June 14.-Counsel: appellants, Willis, K.C., and Hon. Victor Russell; for the respondents, Cotes-Preedy, K.C. and J. Buckmill ; Solicitors for the appellants, Bertram Sturt; for the respondent, Brown, Turner Compton, Carr, and Co.] International law-Diplomatic privilege -Consular secretaryTransferred to embassy -- Certificate of Foreign Office member of staff of embassy Confirmation by Attorney-General-Conclusiveness of certificate Right of cross-examination affidavit of person claiming diplomatic privilege.

on

Appeal from an interlocutory order of Shearman, J. The plaintiff sued the defendant for the rent of a house at Hampstead. The defendant entered an appearance under protest and took out a summons to stay proceedings upon the ground that he was a member of the staff of the German Embassy and thereby entitled to diplomatic privilege. On the 3rd Dec. 1926 the defendant obtained a certificate from the Foreign Office that he was recognised by the Foreign Office as a member of the suite of the German Ambassador. On the 4th March 1926 Shearman, J., upon the application of the plaintiff, made an order that the defendant should appear and be cross-examined on his affidavit. The defendant obtained leave to appeal. The evidence was that the defendant was a consular secretary, at one time employed at the German Consular Office, but

that recently he had been transferred and was employed on the staff of the embassy. It was not contended that the performance of consular duties gave such rights of privilege as applied to the diplomatic service. The German Ambassador approached the Foreign Office who instructed the Attorney-General to give the court information, and on this appeal the Attorney-General appeared and stated that the appellant was recognised by the Foreign Office as a member of the suite of the German Ambassador, but he agreed that the fact that the defendant was on the Foreign Office diplomatic list was not conclusive. The questions arose as to the conclusiveness of the certificate from the Foreign Office, and as to the liability of a foreigner who claimed to be entitled to diplomatic privilege to submit to cross-examination on an affidavit made by him in an action before a court of this country.

Held (the Master of the Rolls dissenting), that though as to the status of sovereigns or ambassadors the courts were accustomed to seek information from the secretaries of state as representing the King and to accept a definite answer as conclusive (Duff Development Company v. Kelantan Government, 131 L. T. Rep. 676; (1924) A. C. 797, at p. 813), the transfer to the ambassador of the control of this consular secretary did not confer the immunity which applied to the diplomatic service, and it was not possible to accept the Attorney-General's statement of the result of the Foreign Office investigation as binding and conclusive in that court; and the position of a former consular official should be decided with full knowledge of the relevant facts, and crossexamination was the best means of getting at those facts, consequently the appeal must be dismissed.

Held, by the Master of the Rolls, that diplomatic privilege, if otherwise conceded, was not lost because the diplomatist was a consul and it was the ambassador who threw his cloak over all persons associated in the performance of the duties of the embassy (Parkinson v. Potter, 53 L. T. Rep. 818; 16 Q. B. Div. 152, at pp. 158, 159), and no better evidence as to the status of the appellant could be forthcoming than the statement in the certificate of the Foreign Office confirmed as it was by the Attorney-General, and such a certificate was treated by the court as conclusive in Re Suarez ; Suarez v. Suarez (No. 2) (118 L. T. Rep. 279; (1918) 1 Ch. 176).

[Musmann v. Engelke. Ct. of App.: Lord Hanworth, M.R., Scrutton and Sargant, L.JJ. May 30, 31, and June 23. Counsel for the appellant, D. N. Pritt, K.C., and W. T. Monckton; for the respondent, H. M. Giveen and J. B. Blagden; Sir Douglas Hogg, K.C. (A.-G.) and M. N. Drucquer. Solicitors : for the appellant, Buckeridge and Braune; for the respondent, Waterhouse and Co.; The Treasury Solicitor.]

Indemnity-Limitation of liability-· "All claims and demands or liability whatsoever no bar to claim by covenantee--Limit of liability to third parties.

Appeal by the defendants from a judgment of MacKinnon, J. The plaintiffs were contractors, and as such were engaged largely in transport, having works near the Great Western Railway. To facilitate their work of transport they constructed a portable gangway which could be moved over the railway lines, and in 1921 entered into an agreement providing the terms on which the railway company would allow of the user on their lines of the gangway. The agreement contained the following clause: "The plaintiffs agree to undertake to indemnify the company against all claims and demands or liability whatsoever whether in respect of damage to persons or property arising out of or in connection with the existence or user of the said gangway." On the 27th Aug. 1926, while using the gangway on the railway company's line with a motor-lorry in it loaded with lime, some trucks which were being shunted struck and destroyed the gangway and so badly damaged the motor-lorry as to render it useless. The plaintiffs in this action claimed damages for negligence, and the Great Western Railway denied liability and relied upon the clause of indemnity. The railway company claimed that the words in the clause "claims and demands or liability whatsoever covered claims whether by third parties

or by the plaintiffs themselves, but the plaintiffs contended that the clause must be construed strictly against the company, and that the accident arose from the negligence of the defendants' servants, and not out of the user of the gangway. MacKinnon, J. held that the words of the