Sir Thomas Hughes, K.C. and Andrewes-Uthwatt; Gover, K.C. and Beebee; Gavin Simonds, K.C. and McMullan ; Farwell, K.C. and Droop; C. R. R. Romer. Solicitors: Arnold and Henry White; Rooper and Whately.] KING'S BENCH DIVISION Principal and agent-Sale of lease of business premises—Claim by estate agent for commission-Restrictive covenant forbidding business other than that of music-sellers-Willingness of landlords to grant licence for purchasers' business—Knowledge of estate agent-Duty of disclosure. Action tried before Rowlatt, J. without a jury. The plaintiff was an estate agent and the defendant a musicseller and the lessee of certain business premises at Wimbledon. There was a restrictive covenant in the lease against the carrying on of any other business on the premises. The plaintiff introduced certain tailors as the proposed purchasers of the lease of the premises at the price of £2250. The defendant had previously refused offers of £2500 from other tailors, because he believed that the landlords would not grant a licence for the carrying on of a tailoring business on the premises. The plaintiff, however, had approached the landlords and received their assurance that a licence would be granted. The plaintiff claimed £112 10s. commission at five per cent., alleging that he had introduced the above purchasers and that the defendant had been unwilling to go on with the sale. The defendant alleged that it was an express term of the plaintiff's employment that the defendant need not accept any purchaser unless there was alternative accommodation available at the time for the defendant's own business, but the judge held that he was not satisfied on the evidence that the defendant had made this a term of the agreement. Held, that the plaintiff was not entitled to succeed, as he knew that the defendant was under a false impression in regard to the willingness of the landlords to grant the licence, and had taken advantage of the false position in persuading the defendant to accept a reduced price. There must, therefore, be judgment for the defendant. [Heath v. Parkinson. K. B. Div.: Rowlatt, J. June 2 and 6.-Counsel: Graham Mould and Sir Reginald Blaker ; C. M. Pitman, K.C. and H. Beasley Wells. Solicitors : Huntley, Son, and Phillips; Sherrard and Sons.] LAW LIBRARY An excellent adjunct to their exhaustive English and Empire Digest has been published by Messrs. Butterworth and Co. in the form of a Desk Index, which will serve as an easy and effectual book of reference to subject or case dealt with in the Digest, Volumes I. to XXV. The Index has been compiled by Mr. Harold B. Bompas (Advisory Editor), Mr. E. W. Martindell, Mr. C. Binney, Mr. D. Clifton, Mr. A. Davies, Mr. G. H. Dewey, Mr. E. James, Mr. G. Wills-Taylor, and Mr. Percy Thomson. It is designated an Interim Index for everyday use and will undoubtedly supply a need which has been greatly felt by busy members of the Profession. Messrs. Butterworth and Co. have also issued a Supplement No. 1 to Volumes I. to XXV., which is edited by Mr. Harold G. Meyer. This supplement brings up the Reports of English cases to the 1st January of this year and at the same time includes other new cases reports of which were to be obtained at that time. This very opportune publication will be received with appreciation by the subscribers to the Digest, a work which may be considered unique in its usefulness and scope. Physiology and Anatomy, by Mr. Harold Gardiner (Sir Isaac Pitman and Sons Limited), has been written with the view of presenting those interested in medicolegal work with necessary information in a simple and collected form, and this object is well fulfilled. It is arranged in two sections, the first treating of Anatomy and Physiology and the second specifying briefly common diseases, their cause, symptoms and complications and the usual period of their duration. The book is intended not only for those whose profession brings them into contact with these matters, such as insurance officials, solicitors and others, but is also written as a text-book for students preparing for examinations of the Life and Accident ranches of the Chartered Insurance Institute. A useful feature is a Glossary of Common Medical Terms and Diseases, which is given in an Appendix. Messrs. William Hodge and Co. Limited have sent us Workmen's Compensation Act 1925, which contains the Statute and relative Act of Sederunt with comparative tables and notes compiled by Mr. Francis A. Umpherstone. The notes to this consolidating Act show the sources from which the provisions of the sections are drawn, and in the comparative tables the sections in the old and consolidating Act are set side by side. We have received from the Society of Comparative Legislation, Part 2 of Vol. 8 of the third series of the Journal of Comparative Legislation and International Law, edited by Sir Maurice Sheldon Amos and Mr. F. P. Walton, K.C. The present issue is confined to a review of legislation during 1924 in the British Empire including British North America, Australia, New Zealand, the Western Pacific and South Africa, as well as the British Isles. NEW EDITIONS Vol. I., Part II. of the Second Edition of that wellknown work Bythewood and Jarman's Compendium of Precedents in Conveyancing has now been received from Messrs. Sweet and Maxwell. The editors, Mr. Stuart L. Bathurst and Mr. Donald C. L. Cree, who have been ably assisted by Mr. Norman H. Oldham, Mr. A. R. Taylour, and Mr. K. Richard A. Hart, in revising the work and incorporating the new legislation, have found it a task requiring extreme care. They have retained the principal characteristics of the former edition, each precedent being made, as far as possible, complete in itself, while abbreviations are excluded. This Part deals with Declarations, Directions and Consents, Disclaimer, Disentailing Deeds, Exchanges, Indemnity, Leases and Miscellaneous Precedents; all matter has been brought up to date and attention is called to the inclusion of a new precedent for a lease of a parsonage house. The book is carefully annotated and well indexed, a matter of no small importance. We have just received Vol. 24 of the Sixth Edition of Chitty's Statutes, which contains Acts passed in 1925 other than the Property Acts which have already appeared in a separate volume (Messrs. Sweet and Maxwell Limited; Stevens and Sons Limited). As our readers are aware, last year constituted a record in volume of new legislation, and the various consolidation Acts have taken up a large, amount of space. As usual the annotation of Chitty has been exceedingly well done, and in this the Editor, Mr. W. H. Aggs, has had the assistance of Mr. G. W. Knowles, Mr. S. R. Benson, Mr. J. Holman Sutcliffe, Mr. Reginald Harrison, and Mr. J. W. Ross-Browne, K.C., and Mr. F. W. Theeman. In order to keep the present volume within reasonable bounds it has been impossible to include all statutory forms and orders, and the selection that appears has been confined to those of almost universal importance. We have received from Messrs. Sweet and Maxwell Limited; Stevens and Sons Limited; and the Solicitors' Law Stationery Society Limited, Vol. 13 of the Second Edition of Mews' Digest of English Case Law, which is appearing under the general editorship of Sir Alexander Wood Renton, Mr. Sydney Edward Williams, and Mr. Wyndham A. Bewes. The titles in this volume run from Machinery to Mutual Will, and contain the important. headings of Magisterial Law, Master and Servant, and Mortgage, the reported decisions being taken down to the end of 1924. Messrs. Butterworth and Co. and Shaw and Sons Limited have just issued the Twenty-Fourth Edition of The Workmen's Compensation Acts, by Mr. W. Addington Willis. This valuable text-book which is so well known to the Profession, has had to be recast in accordance with the new arrangement of the law brought about by the Workmen's Compensation Act 1925, which repeals with a few exceptions, re-enacts, and consolidates without amendment the statutory provisions relating to compensation. The whole book has been carefully revised and all cases included reported down to March last. We are not surprised that a Second Edition has been called for of Title to Life Policies, by Mr. C. L. Izod and Mr. L. D. Eldridge (Messrs. Sweet and Maxwell Limited). The book gives in simple language explanatory notes on title to both English and Scottish Life Assurance policies, and the legal requirements involved in both countries. So far as the new legislation affects the subject-matter of the book, it has been duly noted and separate indices are given for English and Scottish subjects. We have received from Messrs. Shaw and Sons Limited a copy of Powell's Insurance Year Book, 1926, issued for private circulation by Messrs. L. Powell, Sons, and Co. It gives valuable particulars of the leading offices, and should prove of considerable interest to policy-holders and shareholders. BOOKS RECEIVED Powell's Insurance Year-Book, 1926. L. Powell, Sons, and Co., Stock Exchange, E.C. 2. Willis on the Workmen's Compensation Act 1925. TwentyFourth Edition of Willis's Workmen's Compensation Acts. Butterworth and Co., Bell-yard, Temple Bar, W.C. 2; Shaw and Sons Limited, 7 and 8, Fetter-lane, E.C. 4. Price 15s. net. Izod and Eldridge's Explanatory Notes on Title to English and Scottish Life Assurance Policies. Second Edition. Sweet and Maxwell Limited, 2 and 3, Chancery-lane, W.C. 2. Price 7s. 6d. net. The New Procedure under the Rules of the Supreme Court (Poor Persons) 1925: List of Poor Persons Committee. H.M. Stationery Office, Adastral House, Kingsway, W.C. 2. Price 3d.net. Trial of Katharine Nairne. Notable British Trials. William Hodge and Co. Limited, 12, Bank-street, Edinburgh. Price 10s. 6d. net. Norton and Allworth on Borough Boundaries. Butterworth and Co., Bell-yard, Temple Bar, W.C. 2. Price 15s. net. Spaight on Aircraft and Commerce in War. Longmans, Green, and Co. Limited, 39, Paternoster-row, E.C. 4. Price 6s. net. Bythewood and Jarman's Conveyancing Precedents. Second Edition, vol. 2, part 2. Sweet and Maxwell Limited, 2 and 3, Chancery-lane, W.C. 2. Price, 2 vols. or 4 vols., £4 10s. net. CRIMINAL LAW BOROUGH QUARTER SESSIONS Abingdon, Thursday, July 15. 10.30. Bolton, Friday, July 16. Cambridge, Thursday, July 29. Gravesend, Wednesday, July 21. Hereford, Friday, July 23. Rag Flock LEGISLATION A BILL to amend the Act of 1911 on this subject may in all probability be passed into law this year at the instance of Mr. Mackinder and Sir John Simon, for some serious difficulties of construction and administration have been experienced through the varying decisions on the Act. The subject was one to which Mr. John Burn's devoted considerable attention, and his primary object was to stop the manufacture of flocks from the filthy materials collected in any and every part of the world. The Act prohibits the sale or possession for sale of flock made from rags, and also the use of such flock for upholstery, cushions, or bedding, unless it conforms to a certain standard of cleanliness prescribed by the Local Government Board. If reference be made to the Regulations made under this Act it will be seen how this standard is formulated. Somehow or other the Act did not state in plain terms what the meaning is of the expression " flock made from rags," and the omission has occasioned some considerable difficulty. The simple purpose of the new Bill is to settle that the Act is intended to apply to flock produced wholly or partly by tearing up woven or knitted or felted materials, whether old or new, but that on the other hand it is not to apply to flock obtained wholly in the processes of scouring and finishing of newly woven or newly knitted, or newly felted fabrics. This will enable manufacturers of woollen to put on the market flocks extracted from new blankets, reputed to be the best of flocks, without coming within the mischief of the Act. These particular flocks, when scoured by certain soap alkalis offend against the Act, which was really aimed at raw flocks extracted from some filthy imported rags. Cooper v. Swift (110 L. T. Rep. 79; (1914) 1 K. B. 253) has decided that jute refuse composed partly of waste fluff from machines and partly from cuttings in processes of manufacture is also hit by the Act. This decision obviously carries the Act beyond pollution through association with human or animal life, and Mr. Justice Darling (as he then was), who delivered the leading judgment of the court, considered that the proof of such association would be a task of impossibility for the prosecution. Other decisions, which may be found in Stone (1926 edit., at p. 1473), show the difficulties which have arisen. It has been held that re-making a mattress with old flock is not within the words making bedding," but if the flock is put in a new cover then it is within those words. Again, there is no offence if a second-hand dealer buys bedding stuffed with flock below the prescribed standard of cleanliness and sells it again. This Bill, therefore, touches upon a subject closely concerned with the health of every citizen, and one which has given rise to considerable difficulties in administration. 66 Guardians in Default Before THE Government Bill on this subject has experienced various delays in reaching its second reading stage through the preoccupations arising out of the coal dispute. It is known to be aimed primarily at one body which has shown itself determined to stick at nothing in pursuit of a certain policy, but in point of form the Bill is quite general and will be capable of dealing with similar situations consequent upon other boards adopting a like policy. The measure, which stands in the names of Mr. Neville Chamberlain and Sir Kingsley Wood, has for its main purpose the reconstitution of a board of guardians, under certain circumstances. this Bill can operate it must have been made plain to the Minister of Health that the board under observation has ceased, or is acting in such a way as will render it unable, to discharge all or any of its functions. Where this state of things is existing, power is given to the Minister by order to appoint a new board. There is no qualification necessary for appointees and no particular numbers are limited. The appointments will be such as the Minister thinks fit to form a substitute-board in place of members whose offices will become vacant when the order constituting the new board is made. Their period of office is, however, limited to twelve months. Until the expiration of the term of office of the appointed guardians, no person can become a member of the board otherwise than by the Minister's appointment. It is left to the order of the Minister what is to happen as to the holding of an election of members to come into office when the appointed guardians period has determined, and if there be an election the order can also settle the length of time the newly elected guardians are to hold office. It is proposed that the appointed persons can be, as it were, placed on probation, for power is afforded whereby their tenure of office can be extended from time to time for periods not exceeding six months. The exercise, however, of this particular power of extension is subject to the order being laid before both Houses and liable to an address praying for annulment. The rest of the Bill merely gives to the Minister the power to insert in an order all supplementary and consequential matter which he may consider necessary or expedient, and the obvious power to amend, vary, or revoke orders by means of subsequent orders. The appointed guardians, out of moneys in their hands, may, for the exercise of their powers and the discharge of their duties, be paid such remuneration as the Ministry may approve. The same may be said as to the travelling and subsistence allowances of persons appointed to advise the appointed guardians. There is a final clause which deals with liabilities incurred by boards of guardians through their clerk or other officer. If, before the date of an order, the clerk or officer has, on the directions of the Minister of Health, incurred liabilities in respect of the relief of the poor, the appointed guardians are enabled to discharge those liabilities out of any money in their hands. Indian and Colonial Divorce THIS Bill was introduced in the Lords by Lord Birkenhead and is now before the Commons. It contains only three operative clauses, but they are somewhat lengthy. The first gives to the High Court in India, to which Part IX. of the Government of India Act applies, a jurisdiction to dissolve a marriage and to make orders as to damage, alimony, maintenance, custody of children, and costs, where the parties to the marriage are British subjects domiciled in England or Scotland, so long as the court in India would have such jurisdiction if the parties were domiciled in India. The grounds for dissolution must be according to English law, and the principles governing the court must be conformable to those actuating English courts. The petitioner must reside in India when the petition is presented, and the place of last residence of the parties must be there, and the marriage, or the adultery, or the crime complained of must have taken place in India. A court is enabled to refuse to hear a petition if the petitioner is unable to show that by reason of official duty, poverty, or of some other sufficient cause, he or she cannot take proceedings in the country of domicile, and the court must refuse if it is not satisfied that in the interests of justice it is desirable that the suit should be determined in India. Orders for alimony or maintenance or custody of children take effect in India on being made, but decrees and other orders require registration before having effect. Registration is to be effected in the High Court in England, or in the books of council and session in the case of the parties being domiciled in Scotland. Proceedings in India are to take place before a judge or one of two or more judges nominated by the Chief Justice of the Court, with the approval of the Lord Chancellor and appeal will lie to two judges similarly appointed, without prejudice to any right of ultimate appeal to the Privy Council. By order in Council this scheme may be extended to other British possessions other than the selfgoverning dominions. OCCASIONAL NOTES The Lord Chief Justice will open the Commission at Lewes on the second part of the South-Eastern Circuit on Monday next. When the business at this town is finished he will return to London and remain until the end of the present sittings. Mr. Justice McCardie and Mr. Justice MacKinnon will open the commission at Birmingham on the Oxford and Midland Circuits on Monday next. When the business at this town is finished they will return to London and remain until the end of the present sittings. The judges of the Supreme Court will rise for the Long Vacation on Saturday, the 31st inst., after which the courts will be closed until Tuesday, the 12th Oct. next, when the Michaelmas Sittings begin. Mr. Justice Fraser will act as Vacation Judge for the first part of the vacation, from Monday, the 2nd Aug. next up to and including Saturday, the 4th Sept. next, both days inclusive. During this period he will sit every Wednesday (commencing on Wednesday, the 4th Aug.) in the Lord Chief Justice's Court at 10.30, to hear applications, motions and other vacation business. He will also sit once a week during this period in King's Bench Judges' Chambers, to hear applications and summonses, but the day and time has not yet been fixed. On the termination of Mr. Justice Fraser's duties as Vacation Judge Mr. Justice Bateson will so act to the end of the Long Vacation. He will also sit in the Lord Chief Justice's Court every Wednesday at 10.30, cemmencing on Wednesday, the 8th Sept. next, to hear motions and applications, and he will also sit in King's Bench Judge's Chambers once a week to hear applications and summonses, but the day and time have not yet been fixed. On other days within the above respective periods applications in urgent matters may be made to the Long Vacation Judge then so acting, by post or, if necessary, personally. The following are the judges of the King's Bench Division who will travel the Autumn Assizes which will commence early in October next, viz.: South-Eastern Circuit (first part, commencing at Cambridge and finishing at Chelmsford), Mr. Justice MacKinnon, (second part, commencing at Hertford and finishing at Lewes), Mr. Justice Avory; Oxford Circuit, Mr. Justice Swift; Western Circuit, Mr. Justice Horridge; Midland Circuit, Mr. Justice Sankey; Northern Circuit, Mr. Justice Branson and Mr. Justice Acton ; North-Eastern Circuit, Mr. Justice McCardie and Mr. Justice Finlay; North and South Wales Circuits, Mr. Justice Fraser, and at Swansea being joined by Mr. Justice Wright. The Probate and Divorce Common Jury list will be taken on Tuesday next, and will be continued up to and including Friday, the 30th inst. (Mondays and Saturdays excepted). The July Sessions at the Central Criminal Court will commence on Monday, the 19th inst., at the Old Bailey, at 10 o'clock. The Midsummer Quarter Sessions for cases arising in the County of Middlesex will commence to-day (Saturday) at the Guildhall, Westminster, at 10.30. The next ordinary meeting of the Society for Jewish Jurisprudence (English branch) will be held on Wednesday, the 14th July, at 5 p.m., in Prince Henry's Room, 17, Fleetstreet, E.C. (over the entrance gate to the Inner Temple). Sir Maurice Sheldon Amos, K.B.E. (late Judicial Adviser to the Egyptian Government), will preside at this meeting, when a paper will be read on “Jewish Law in Practice " (with special reference to its application in Palestine) by Mr. Norman Bentwich, Attorney-General of Palestine. The annual competition for the challenge cup presented by the Master and Wardens of the City of London Socilitors' Company was played for on the 30th June over the Sunningdale links (old course) against bogey under handicap. The winner was Mr. H. W. Morris, of the firm of H. C. Morris, Woolsey, Morris, and Kennedy, of 2, Walbrook, E.C. (who was also the winner last year), he being four down; second, Mr. W. T. Watkins Birts, of 65, Coleman-street, E.C., six down. Modern legislation has made so many inroads upon old customs and practices in law and in our social life that it has almost eliminated all the picturesque elements that so greatly attracted the student. Sir Walter Scott, who viewed the law of Scotland not merely as a lawyer but as a poet and antiquary, deplored the iconoclastic action of the legislation of his own day. How much more would he have done so could he have had a prevision of the increasing rapidity with which so much that was old and picturesque in the feudal system, which entered so largely into the law of Scotland, was to be ruthlessly swept away. Among the quainter features of Scots law, one not, it is true, peculiar to Scotland, but familiar also in Continental countries, which survived till a comparatively late period, was the monopoly possessed by mills for grinding the grain grown in particular districts. This branch of law, which forms the subject of an extremely interesting paper by Mr. William Yeaman in the current issue of the Scots Law Times, had a strange, and to English lawyers, an uncouth technical terminology connected with it. Lands attached to a particular mill were said to be “thirled " to it ; the lands so thirled were known as the "thirl" or "the sucken "; while the payments made to the miller and his men for the services rendered by them were termed “multures " and " sequels," the former going to the miller and the latter to his men. The old books, such as Morison's Dictionary of Decisions, show how frequently questions relating to thirlage, multures, both "insucken ”—those paid by farmers 66 whose land was thirled to the particular mill-and outsucken "--that is the payment made by those who came of their own free will to have their grain ground, were before the courts. So late as 1873 an action by the tenant of a mill for "abstracted multures," involving a question of the extent of the thirl, was held by the Court of Session to have been competently brought in the Sheriff Court as one touching the constitution of a prædial servitude. But since the Act 39 Geo. 3, c. 55, which, after declaring that "the servitude of thirlage and right of mill services incident thereto are very unfavourable to the general improvement of the country," provided for the commutation of those services, the subject has been mainly of historical interest. 66 to The The full report of the Scottish case of Grant v. Countess of Sheffield, now available in 1926 Session Cases 274, is of special interest because of the argument and decision on the admissibility, in an action for declaration of legitimacy, of evidence of personal and family likeness. The pursuer in the action averred that he bore "a noticeable family resemblance his alleged father "in features, gait, and mannerisms.” Lord Ordinary and the Second Division, in holding these averments to be irrelevant, followed what has been the uniform practice of Scots law at least since 1810. In rejecting evidence of resemblance, except in marked cases of abnormality, Scots law differs from English law. The Lord JusticeClerk thought that the admission of such evidence was obviously and inevitably fraught with a high degree of danger. As he pointed out, persons who are entirely unrelated often bear a striking resemblance to one another, while persons who are closely related not infrequently bear not the slightest resemblance. Such evidence was described as a 66 matter of fancy and loose opinion." Of the truth of this we have strong corroboration in an anecdote told by Serjeant Ballantyne of his youthful career at the Bar. Appearing before Mr. Broderip, the then magistrate at the Thames Police Court, for a client who was alleged to be the father of an infant, Ballantyne did his best but unsuccessfully. Afterwards, calling Ballantyne, the magistrate was pleased to say to him “You made a very good speech and I was inclined to decide in your favour, but you know I am a bit of a naturalist, and while you were speaking I was comparing the child with your client and there could be no mistake, the likeness was most striking." "Why, good heavens!" exclaimed Ballantyne, "my client was not in court. The person you saw was the attorney's clerk," as was, indeed, the case. Perhaps it is another instance of their national caution that the Scots decline to admit the relevancy of facial or other alleged resemblances in question of paternity. "If a Mr. Mackenzie King, the late Premier of the Dominion of Canada, complained in the Dominion House of Commons that the Governor of Canada (Lord Byng) had refused to accept his advice offered on behalf of the Cabinet to dissolve the Canadian Parliament. The practice, the Prime Minister added, in Great Britain, so far as he was aware, was for the Sovereign to exercise the prerogative of dissolution on the advice of the Prime Minister, backed, of course, by the Cabinet. The difference in practice in relation to the exercise of the prerogative of dissolution in the Dominions and Great Britain is by no means theoretical, but capable of an exercise which has produced notable effects. The British practice in relation to the exercise of the prerogative of dissolution of Parliament by the Crown, as it exists at the present time, has been stated by Dicey, and has been expounded by Sir William Anson, of whose views Mr. Mackenzie King's remarks are, in themselves, a lucid enunciation. Premier" [of Great Britain], writes Dicey, were to retain office after a vote of censure passed by the House of Commons, if he were as did Lord Palmerston under like circumstancesto dissolve, or, strictly speaking, to get the Crown to dissolve Parliament, but, unlike Lord Palmerston, were to be again censured by the newly elected House of Commons, and then, after all this had taken place, were still to remain at the head of the Government, no one could deny that such a Prime Minister had acted unconstitutionally." Sir William Anson, writing in 1907, thus sums up the result of the cases in the preceding half century in this country in which the question of the dissolution of Parliament has presented a problem in the relations of the Crown and the Cabinet. "It would," he writes, "seem that a dissolution is now invariably granted on the request of the Minister, and involves no rebuff to the Sovereign if the Minister is defeated at the polls." The position, however, of a Governor of a Dominion widely differs 66 from that of the Sovereign in relation to the exercise of the power of dissolution. That position has thus been explained and expounded by the late Sir Henry Jenkyns, K.C.B., in his British Rule and Jurisdiction Beyond the Seas, acknowledged as a standard work of the very highest authority, and edited by Sir Courtenay Ilbert, K.C.S.I., the late learned Clerk of the House of Commons, whose opinion on matters affecting the working and practice of the British Constitution has long been regarded as incontrovertible. "A question," writes Sir Henry Jenkyns," in which a Governor may frequently have to act independently of, or even contrary to, the advice of his Ministers for the time being, is that of the dissolution of the Colonial Legislature, or of that branch of it which is elected by the people. The constitutional rule is that the exercise of, or the refusal to exercise, the power of dissolution must be approved by a Minister of the Crown directly responsible to the popular branch of the Legislature. But, nevertheless, in granting or refusing a dissolution, the Governor should be by no means a passive instrument in the hands of the Ministers. It is his duty to exercise his judgment on the advice that may be tendered to him. In considering the matter he should inform himself as to the probable result of a dissolution and new election, having regard to the state of opinion in the Colony and the importance of the issue. He should take into consideration whether the Ministers against whom an adverse vote has been carried have not already appealed to the country, whether there are gounds for believing that the adverse vote would be reversed after a new election." Various cases have arisen in the Colonies in which a Governor has refused to grant a dissolution upon the advice of his Ministers; these Ministers have thereupon resigned and new Ministers have been summoned who have carried on the Government. The fact that among the extraordinary incidents of the political crises in Canada two divisions, both involving a question of confidence in the Government and its fall, were decided by a majority of one, may remind us that many questions involving great issues have been carried or defeated by small majorities. The question of the Union, on its first introduction to the Irish House of Commons, miscarried, an amendment in favour of an independent legislature being lost by a single vote. At the present time a virtual defeat on a leading question of policy would have involved, in accordance with constitutional practice, the resignation of the Ministry and the acceptance of office by a statesman opposed to the Union. But under the Irish Parliamentary system of that period there was no Irish Government responsible to the Irish Parliament, and through it to the people at large. The Ministers being dependent on an English and not an Irish Government, retained their positions, notwithstanding an incident which was tantamount to a vote of want of confidence in them by the Irish Parliament. Then, again, the passing of the great Reform Bill of 1832, on its second reading in the House of Commons, was carried by a majority of one. Then, again, the first vote of no confidence in a Government, as we now understand the term, was carried by a majority of one. This was the famous motion made by Sir Robert Peel against the Ministry of Lord Melbourne, declaring that the then Ministers of the Crown did not possess the confidence of the House of Commons, and that their continuance in office was therefore at variance with the spirit of the Constitution. The question of the institution of the impeachment of Melville by the House of Commons was decided, in the House of Commons on an equality of votes, by the casting vote of the Speaker (Abbot, Lord Colchester) in 1805. So far back as 1880 Mr. Gladstone relied on these leading cases as furnishing decisive arguments against the proceedings of the House of Commons being, under any circumstances, transacted on any other principle than that of majority rule. As the excitement of the political situation in Canada at the present moment has invested the Dominion, which has played a most conspicuous part in the development of the Empire, with fresh interest, it will probably startle the student of Parliamentary law and procedure to record that Parliament of the Dominion was dissolved the other day without the previous formality of a prorogation-an incident which is stated to be without parallel in Canadian Parliamentary history. In this country a proclamation for the prorogation of Parliament usually precedes its dissolution, and is regarded as a courteous softening of the extinction produced by a dissolution. Since the dissolution of the 28th March 1681 the Sovereign has not dissolved Parliament in person until the 10th June 1818, when it was dissolved by the Prince Regent in person. Parliament has not since been dissolved in that form, but proceedings not very dissimilar have occurred in recent times. On the 22nd April 1831 William IV., having gone down to dissolve Parliament, said "I have come to meet you for the purpose of proroguing Parliament with a view to its immediate dissolution." It may perhaps be of interest to record that only in the Dominion of Canada and in the six counties of Northern Ireland has the title of " House of Commons " been conferred on the popular branch of the Legislature. In New Zealand and the Australian Commonwealth it is called the House of Representatives; in Newfoundland, South Australia, Tasmania, and the Cape Colony, the House of Assembly; and in the other self-governing Colonies, as also in all the Canadian Provinces, the Legislative Assembly. The Times, in an article, on the 4th inst., of characteristic magnanimity in relation to former foes, while writing in high appreciation of the statesmen on the anti-British side of the War of the Independence, records the circumstance, now all but forgotten, that Adams and Jefferson, two of the signatories of the Declaration of American Independence, died on the anniversary of the half-century of the signing of that Declaration. Jefferson and Adams have found high appreciation from Lord Brougham in his Statesmen of the Time of George III. Lord Brougham also mentions, with similar stately compliment, Charles Carrol, the last surviving signatory of the Declaration of Independence, who was joined with Franklin in the commission of three sent to obtain the concurrence of the Canadians in the revolt. Carrol, who was a man of large possessions, of which he incurred imminent risk of being deprived, was, like Adams and Jefferson, a profound student of the law, and, as such, likely to attain the favour and admiration of Lord Brougham-an ambition which he realised to the very fullest degree. Lord Brougham, in a few words of moving eloquence, refers to Adams, Jefferson, and Carrol: "In 1825, on the anniversary of the half-century after the Declaration of Independence was signed, the day was kept over the whole Union as a grand festival, and observed with extraordinary solemnity. As the clock struck the hour when that mighty instrument had been signed, another bell was also heard to toll: it was the passing-bell of John Adams, one of the two surviving Presidents who had set their hands to the Declaration. The other was Jefferson, and it was soon after learnt that at this hour he, too, had expired in a remote quarter of the country. There now remained only Carrol to survive his fellows; he had already reached extreme old age, but he lived yet even seven years longer, and in 1832, at the age of ninety-five, the venerable patriarch was gathered to his fathers. The Congress went into mourning on his account, as they had done for Washington, and for him alone." GENERAL INTELLIGENCE PRIVATE CLAIMS AGAINST FOREIGN commerce SOVEREIGNS (Continued from p. 476.) In the case of The Gul Djemal it was held that there was no immunity, both because the vessel owned by the Turkish Government was engaged in trade, and also because there had been a severance of diplomatic relations. So far as the question of trade is concerned Judge Knox says: "I will, however, observe that in my judgment a Government which makes it possible, as here, for an individual, who is hedged about with no special immunities or prerogatives, to use sovereign property for purposes of trade and has brought itself squarely within the declaration of the Supreme Court in Bank of United States v. Planters' Bank of Georgia (9 Wheat. 904) where it was said: 'It is, we think, a sound principle that when a Government becomes a partner in any trading company it divests itself of its sovereign character and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself and to the business which is to be transacted.' immunity] here claimed should not be permitted to destroy, as it would, the basic principle that in trade and commerce there should be for the persons engaged therein a fair field and no favours." [The A number of judges, in holding trading vessels immune on the ground that they were bound by authority, have criticised the rule adversely. Such criticism is not infrequently the precursor to an abandonment of the objectionable position. In the second decision 66 of the Maipo case Judge Hough says: Now, it may be opinion of counsel, as it assuredly is my opinion, that when a sovereign goes into business and engages in the carrying trade, it But ought to be subject to the liabilities of carriers. if I, in my official capacity, were to assert that view and enforce it, I would be assuming (in this case), as one of the humbler officers of the Government of the United States, to define for the Republic of Chile what that republic should consider to be a governmental function. If the Republic of Chile considers it a governmental function to go into the carrying trade, as would appear to be the case here, that is the business of the Republic of Chile; and if we do not approve of it, if we do not like it, if we do not wish any longer to accord that respect to the property so engaged, which has hitherto been accorded to Government property, then we must say so through diplomatic channels. Otherwise, the judiciary are really contributing to what might become, under conceivable circumstances, a casus belli. Therefore I feel not only because there is no distinction between this case and the previous decision in the Maipo case, but for the greater reason that the question is not justiciable but diplomatic, that the motion must be granted, however hard it may be upon private persons; and I do think it is very hard." In the Porto Alexandre case Mr. Justice Hill, in giving judgment in the court below, said that he arrived at the decision with the greatest reluctance and added: “I have already, in previous cases, pointed out what I conceive to be very strong reasons why it is undesirable that cases should be withdrawn, as this is being withdrawn, from the courts, but I have only to assert now what I conceive to be the law." Lord Justice Scrutton, in dismissing the appeal, said: "I quite appreciate the difficulty and doubt which Mr. Justice Hill felt in this case, because no one can shut his eyes, now that the fashion of nationalisation is in the air, to the fact that many States are trading, or are about to trade, with ships belonging to themselves; and if these national ships wander about without liabilities, many trading affairs will become difficult; but it seems to me the remedy is not in these courts. The Parlement Belge excludes remedies in these courts. These are matters to be dealt with by negotiations between Governments, and not by Governments exercising their power to interfere with the property of other States contrary to the principles of international courtesy which govern the relations between independent and sovereign States. While appreciating the difficulties which Mr. Justice Hill has felt, I think it is clear that we must, in this court, stand by the decision already given, and the appeal must be dismissed." In 1908 the Supreme Court of Massachusetts held, in Mason v. Intercolonial Railway, that the funds of a Government owned Canadian railway could not be attached in an action for an injury to a passenger in Canada, alleged to have been caused by negligence. The court does not discuss the effect of granting immunity in trade cases, but apparently assumes that the ownership of the defendant railroad by King Edward VII. precludes the possibility of suit. The question of the immunity of a corporation created by the State of Yucatan to carry out its policies with reference to the growth and sale of sisal hemp arose in New Jersey in Molina v. Comision Reguladora. Judge Swayze held that immunity does not extend to a foreign corporation, the governmental agency of a political subdivision of a foreign Government. He points out persuasively the disastrous effect upon domestic trading corporations of giving to foreign Governments power to clothe their own corporations with the extremely valuable privilege of immunity from judicial proceedings, which he suggests might be so important a differential as to preclude the possibility of successful competition by domestic corporations. Precisely the same reasoning is applicable if the foreign Government, instead of creating a corporation, elects to operate directly through Government officials a trading or commercial enterprise. 66 A very recent expression of the United States Supreme Court is of the greatest significance. In the case of State of Georgia v. City of Chattanooga, the court dismissed an original appeal to enjoin the City of Chattanooga from appropriating for street purposes lands constituting part of a railroad yard which the State of Georgia owned in the City of Chattanooga, Tennessee. Mr. Justice Butler says: The sovereignty of Georgia was not extended into Tennessee. Its enterprise in Tennessee is a private undertaking. It occupies the same position there as does a private corporation authorised to own and operate a railroad; and, as to that property, it cannot claim sovereign privilege or immunity." This case involved a State where the Eleventh Amendment to the Constitution expressly precludes actions. In the case of foreign States where immunity rests solely on comity there is no impediment to the application of a like principle. On the Continent of Europe it appears to be the general rule that a foreign sovereign is suable for acts done in the capacity of a trader. The Italian courts have held that there is no jurisdiction in the case of atti d'impero, but that there is jurisdiction in the case of atti gestione. The first decision based on this distinction was rendered in 1887, and has been frequently followed. PradierFodere states that it has frequently been decided in France that a ship owned by a foreign Government, engaged in commerce, should be treated as an ordinary merchantman. The Supreme Court of Holland has held that a Dutch citizen can recover judgment against Belgium for an overpayment made on a shipment of wood over a Belgian State railway. |