6

respect of that cause of action is given to his widow." But this is not the true view to be taken of the Fatal Accidents Act, because, according to the judgments in the House of Lords in Seward v. Owners of Vera Cruz (1884, 52 L. T. Rep. 474; 10 App. Cas. 59) the Act creates an entirely new cause of action. Lord Chancellor Selborne says: "Lord Campbell's Act gives a new cause of action clearly and does not merely remove the operation of the maxim actio personalis moritur cum personâ, and because the action is given in substance not to the person representing in point of estate to the deceased man, who would naturally represent him as to all his own rights of action which could survive, but to his wife and children, no doubt suing in point of form in the name of his executor." And, again, Lord Blackburn says: “I think that when that Act [The Fatal Accidents Act] is looked at, it is plain enough that if a person dies under the circumstances mentioned, when he might have maintained an action, if it had been for an injury to himself which he had survived, a totally new action is given against the person who would have been responsible to the deceased, if the deceased had lived; an action, which, as is pointed out in Pym v. Great Northern Railway Company (2 B & S. 759 ; 4 B. & S. 396), is new in its species, new in its quality, new in its principle, in every way new, and which can only be brought if there is any person answering the description of the widow, parents, or child, who, under such circumstances, suffers pecuniary loss by death."

In so far, therefore, as Griffiths v. Earl of Dudley (1882, 47 L. T. Rep. 10; 9 Q. B. Div. 357), decided that no new cause of action arose under the Fatal Accidents Act, that case must now be regarded as having been definitely overruled.

As the Judicial Committee, however, pointed out in the Gentile case (ibid., at p. 1041), before a cause of action can accrue under the Fatal Accidents Act, it is necessary to prove not only that the death has been caused by some wrongful act, neglect, or default, but also that the default is such as would if death had been caused, have entitled the party injured to maintain an action and recover damages in respect thereof. The potential right of action that might arise under the Act might therefore be destroyed if the deceased has done anything in his lifetime to forfeit the claim he himself might have made, as for example, if he has received compensation in full discharge of his claim: (Read v. Great Eastern Railway Company, 18 L. T. Rep. 822; L. Rep. 3 Q. B. 555), and again as in Markey's case, if he himself has not instituted proceedings within the requisite time required by the Public Authorities' Protection Act. Gentile's case, however, is authority for the proposition that, provided the rights which the deceased himself might have had in his lifetime have not been prejudiced or destroyed in any way, a claim may be maintained under the Fatal Accidents Act if made within the twelve months, notwithstanding that more than six months have expired, so that if the deceased had been alive his right of action would have been destroyed by that time under the Public Authorities Protection Act.

In Venn v. Todesco, accordingly, Mr. Justice McCardie held that he was bound to follow the decision in Gentile's case given by the Privy Council, and he accordingly held in that case that the action was not statute barred as far as the Public Authorities' Protection Act 1893 was concerned. Such a decision would appear to defeat to some extent the object with which the Public Authorities' Protection Act was passed. In the words of Lord Justice Bankes, in Freeborn v. Leeming (134 L. T. Rep. 117; (1916) 1 K. B. 160), the Legislature apparently intended "in the case of action against public authorities not only to substitute one time limit for all existing time limits, but by adopting a new definition of what constitutes that limit, to modify the existing law upon the subject." Curious results are also likely to follow from the above decision. As Mr. Justice Macardie pointed out in Venn v. Todesco: "If the Act of 1893 was not allowed to operate in cases of death, and if the limits of time in such cases were to be fixed only by Lord Campbell's Act, then it seemed to follow that if there be alleged negligence, and the individual said to be injured thereby lived for several years ere death came about, then so great a period of time might elapse as to defeat in toto the well-known object of the Act of 1893. A plaintiff widow could then issue a writ after the passage of years had destroyed or lessened a defendant's opportunity for meeting the case and for dispelling the allegation against him."

To this, however, it might be answered, that where the defendant was a public authority, proceedings in most cases must necessarily have been instituted by the deceased in his

lifetime within the six months' period, in order to confer on his widow and children a title, as it were, to take action under the Fatal Accidents Act. This was the principle of William's case; a principle that was expressly approved by the Privy Council in Gentile's case.

THE CONVEYANCER Vesting Deeds

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WHERE it is intended that all the settled property shall be vested in the tenant for life by one deed, it is important that the terms of the vesting deed should be sufficiently wide for there to be no doubt that all the estate capable of being vested passes to the tenant for life. The form provided in the First Schedule of the Settled Land Act 1925 provides that: "All and singular the hereditaments and premises respectively mentioned in the First and Second Schedules hereto, and all other (if any) the premises capable of being vested by this declaration which are by any means subject to the limitations of the recited settlement are vested in the tenant for life. . . .' Presumably, on the ground that the word "hereditaments has been rendered obsolete by the new legislation abolishing the heir, many deeds do not follow this form, but run as follows: "All and singular the freehold and leasehold properties respectively described in the First and Second Schedules hereto, and all other (if any) the freehold and leasehold property capable of being vested by this declaration," &c. This change does not seem a wise one. For the meaning of the word "hereditaments is clear, it having been defined by sect. 117 (vii.) of the Act as meaning “ real property which on an intestacy might before the commencement of this Act have devolved on an heir." The Act, however, contains no definition of "freeholds," and while, under the statutory form, it is manifest that all incorporeal as well as corporeal hereditaments must pass; if the term "freehold " is used, it is arguable that incorporeal hereditaments are not included. The point arises where the settled property includes fishing and sporting rights. If the tenant for life sells under a vesting deed not drafted with the precision of the statutory form, it is open to a purchaser to take the point that the deed does not vest such rights. The fact that the statutory form has not been followed might be held to show some alteration in meaning was intended, which, as that form is designed to be inclusive, must be a curtailing of the subject-matter vested. The only modification which seems at all desirable in the statutory form is the substitution for "all other (if any) the premises of "all other (if any) the property.' Property is defined in sect. 117 (xx.) as including anything in action and any interest in real or personal property. The word is of such extended application that it must preclude a purchaser, however captious, from objecting to a vesting deed on the ground that all the settled estate is not included in it.

What is a Settlement?

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A CURIOUS point has been raised on the construction of sect. 1 (v.) of the Settled Land Act 1925. It is thereby provided that any deed or other instrument, or any number of instruments, whether made or passed before or after the commencement of the Act, under or by virtue of which instrument or instruments any land, after the commencement of the Act, stands for the time being charged, whether voluntarily, or in consideration of marriage, or by way of family arrangement, and whether immediately, or after an interval, with the payment of any rentcharge for the life of any person, or any less period, or of any capital, annual, or periodical sums, for the portions, advancement maintenance or otherwise for the benefit, of any persons, with or without any term of years for securing or raising the same, creates, or is for the purposes of the Act a settlement. It has been suggested that the sub-section might apply to the case of a perpetual rentcharge reserved on a sale of land, as is frequently done in various districts, such as Manchester and others. It is, however, clear that the whole of the sub-section is governed by the words at the beginning of it, namely, " Charged whether voluntarily, or in consideration of marriage, or by way of family arrangement." Further, it only applies to a rent charge for life or a less period. Further, the words "capital sums are restricted to things in the nature of portions, or provisions for advancement or maintenance. There are no doubt instances in the new Law of Property Acts in

which the meaning might have been made a little plainer, but this is hardly one of them. What is clear to a clever draftsman is not always so to ordinary practitioners, and Acts of Parliament are meant for the public generally.

Public Trustee-New Trustees

THERE seems to be a difference of opinion as to whether, under Part IV., sub-sect. 4 (III.) of the First Schedule to the Law of Property Act 1925, persons interested in more than an undivided half of the land, or the income thereof, can appoint themselves as new trustees, in the place of the Public Trustee, in whom the land has vested upon the statutory trust. There is no doubt that under sect. 36 of the Trustee Act 1925 a person, exercising the statutory power thereby given, can appoint himself as trustee, as that section expressly says so. But (1) Are the persons interested in more than an undivided half of the land persons "nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust." "Instrument " in that Act includes Act of Parliament (sect. 68). If, therefore, the Law of Property Act creates the trust, so far the section would seem to apply. (2) But does the Law of Property Act 1925 "create the trust." It appears to create the statutory trusts. Then comes the question whether the first part of sect. 36 applies; i.e., is the Public Trustee a trustee who is dead, or remains out of the United Kingdom for twelve months, or desires to be discharged, or refuses or is unfit to act, or is incapable of acting, in the trust? The only word there which may fit the circumstances is "incapable." Can it be said that the Public Trustee is " incapable" of acting-he is incapable in this sense, namely, that he is not entitled to act, unless and until requested so to do as aforesaid. The present writer submits that it would be a narrow construction to hold that sect. 36 does not apply, and he leans to the opinion that it does, but it would be safer, and in some cases advisable, to appoint independent persons. Irrespective of the Trustee Act 1926 the law is not in a very satisfactory state. In Re Sampson (94 L. T. Rep. 241; (1906) 1 Ch. 435) it was decided by Mr. Justice Kekewich that under the old statutory power, conferred by sect. 10, sub-sect. 1, of the Trustee Act 1893, the person making the appointment could not validly appoint himself, either alone or jointly with any other person, as it only empowered the appointment of some other person.' But in Montefiore v. Guedalla (89 L. T. Rep. 472; (1903) 2 Ch. 723) it was decided by Mr. Justice Buckley (as he then was) that where the power was simply "to appoint a new trustee or trustees," the appointors could appoint themselves, though they ought not to do so, save in exceptional circumstances. Where, however, the new statutory power applies it is not necessary that the circumstances should be exceptional, although exceptional circumstances might render such an appointment open to question.

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NOTES OF NEW DECISIONS

By Our Reporters in the Several Courts
COURT OF APPEAL

Revenue-Income tax-Non-resident-Trade exercised in the United Kingdom-Agent-Shipping agents-Contracts for outward carriage of goods-Income Tax Act 1842 (5 & 6 Vict. c. 35, s. 41: 16 & 17 Vict. c. 34, s. 2, Sched. D.)-Finance (No. 2) Act 1915 (5 & 6 Geo. 5, c. 89), s. 31, ss. 6.

N. A. and Co., the appellants, carried on business as general steamship agents, coal exporters, and shipbrokers. The largest part of their business consisted in the export of coal, and they supplied coal to many foreign steamship companies including F. D. S., a Danish company. Under an agreement made between the appellants and the predecessors of the Danish company, the appellants undertook to look after and promote the interests of the Danish company, and in consideration of payments on a specified scale to defray all wages for discharging and loading the ships, this to comprise the cost of management and superintendence, delivery of goods on the quay, loading and unloading of goods dispatched and arriving by rail, delivery of dutiable goods to bond, mining and storing of all outgoing goods, and supervision of a warehouse on the quay, which the appellants' leased, and for the rent and cost of repairs of which they were reimbursed by the Danish company. Goods for shipment by the Danish company's

ships were brought to the quay by the consignors, who did not know by whose ship the goods would be carried. The appellants put the goods on board the ship. A clerk of the appellants was lent to the master of the ship and signed the bills of lading" for the master." Since the outbreak of the war all outward freights had been collected by the appellants. The appellants were responsible to the Danish company for freights payable in this country. The appellants made all arrangements for berthing the ships, unloading and loading them, clearing the customs, supplying bunker coal, and generally doing what was required in connection with the ships while they were in port. For these services and for the collection of freights they were remunerated by a commission from the Danish company. The Danish company had a number of other agents acting for them in a similar way in different parts of the world, and some in England. The appellants were assessed to income tax as agents for the Danish company. They contended that the latter did not carry on any trade within the United Kingdom; that the appellants were not authorised persons carrying on the Danish company's regular agency; that they were general agents and brokers; and, alternatively, that the assessments ought to be restricted to the profits arising from freights collected by the appellants in respect of goods shipped from this country. The Special Commissioners held that a trade was carried on by the Danish company in the United Kingdom to the extent to which goods were taken on board its ships, and that the appellants were assessable as its agents in respect of all the profits arising from such trade whether the freights were collected by the appellants or otherwise. T. W. Sons and Co. Limited were the exclusive agents at another port in the United Kingdom for the Danish company. They performed services for the Danish company substantially similar to those performed in the case of N. A. and Co. They appealed against assessments to income tax made upon them as agents for the Danish company. The assessments for the years ending the 5th April 1914 and 1915 were made under sect. 41 of the Income Tax Act 1842, and for the year ending the 5th April 1916 under that section as amended by sect. 31 of the Finance (No. 2) Act 1915. The Special Commissioners held that the assessments were rightly made on the appellants as agents of the Danish company in respect of the profits on all goods shipped from the United Kingdom. Rowlatt, J. held that as in both cases the Danish company had habitually made contracts through the appellants as their agents, for the carriage of goods from the United Kingdom, they had been exercising a trade in the United Kingdom. In each case the appellants were authorised persons carrying on the regular agency of the Danish company, which was properly assessable in their names, and the appeals must be dismissed.

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Held, that within the meaning of sect. 2, Sched. D, of 16 & 17 Vict. c. 34, there were annual profits or gains arising or accruing to a person although not resident within the United Kingdom from a trade exercised within the United Kingdom, as the operations from which the profits arose took place in this country, namely, the business of securing freight by the appellants for the F. D. S. Company. Erichsen v. Last (45 L. T. Rep. 703; 8 Q. B. Div. 414, at p. 417); Smidth and Co. v. Greenwood (127 L. T. Rep. 68; (1921) 3 K. B. 583, at p. 593). Held, also, that the appellants with regard to the first two years of assessment were agents having the receipt of any profits or gains " within the meaning of sect. 41 of the Income Tax Act 1842, and as such the tax was chargeable in their name against the F. D. S. Company, and the profits or gains there referred to were gross profits or gains: (Grainger v. Gough, 74 L. T. Rep. 435; (1896) A. C. 325, at p. 337). Moreover, with regard to the last year of assessment, they did not escape under sub-sect. 6 of sect. 31 of the Finance (No. 2) Act 1915, as it was clear both appellants were authorised persons carrying on a regular agency, and the words in sub-sect. 6 "not being an authorised person carrying on the non-resident's regular agency " applied to all three categories which had gone before, namely, to a broker, general commission agent, or agent, therefore F. D. S. Company were properly assessed to income tax in the name of the appellants and the appeals must be dismissed.

[Nielsen, Andersen, and Co. v. Collins; Tarn v. Scanlan. Ct. of App: Lord Hanworth, M.R., Scrutton, L.J., and Romer, J. July 9.-Counsel for the appellants, A. M. Latter, K.C. and Cyril King; for the respondents, Sir

Douglas Hogg, K.C. (A.-G.) and Reginald P. Hills. Solicitors for the appellants, Nicholson, Graham, and Jones; for the respondents, Solicitor of Inland Revenue.] Revenue Income tax- Trade-Change of ownership-Profits falling short-Specific cause "--Trade depression abnormal -Income Tax Act 1918 (8 & 9 Geo. 5, c. 40), Sched. D, cases I. and II., r. 11.

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Appeal from a decision of Rowlatt, J. given on the hearing together of Owl Mill Company Limited v. Croft and this case (134 L. T. Rep. 731), affirming the decision of General Commissioners upon the application of rule 11 of the rules applicable to cases I. and II. of Sched. D of the Income Tax Act 1918. The rule provides : . If any person succeeds to a trade the tax payable in respect of the person so succeeding shall be computed according to the profits or gains of the trade during the respective periods prescribed by this Act, notwithstanding the change or succession unless the person succeeding to the trade proves to the satisfaction of the commissioners that the profits or gains have fallen and will fall short from some specific cause to be alleged to them, since such change or succession took place, or by reason thereof." The respondents, the D. M. Company Limited, were assessed in the sum of £22,475 less depreciation (£6016), £16,459 under Sched. D of the Income Tax Act 1918 for the year ending the 5th April 1921 in respect of the profits of the business of cotton spinners. The respondent company was incorporated on the 14th Jan. 1920 to take over the assets and undertaking of the D. S. Company Limited. The respondent company continued to carry on the business so acquired, and for the year ending the 26th Feb. 1921 sustained a loss of £11,268 as computed for income tax purposes. It was admitted that the respondent company had succeeded to the business of the D. S. Company Limited, within the meaning of rule 11, and the company appealed against the assessment on a three years' average on the ground of an extraordinary fall in the price of cotton, a falling-off in orders for yarn, a failure on the part of customers to carry out their contracts, and a great decrease in and ultimate extinction of the margin of profit in working during the year in question; all of which were due to a severe depression in the cotton and allied trades which the respondent company alleged was a specific cause from which their profits had fallen short within the meaning of rule 11, and consequently that an average of three years ought not to be taken in ascertaining the profits of the year of assessment for income tax purposes. The commissioners found that the depression in the cotton trade since Jan. 1920 was extraordinary and abnormal and did not arise from the ordinary fluctuations in business and that state of things was a specific cause within the meaning of the rule. Rowlatt, J. confirmed that decision as a phenomenal trade depression might be a specific cause within the meaning of the rule.

Held, affirming Rowlatt, J., that though a loss of profit due to ordinary fluctuations in a trade was not a specific cause within the meaning of the rule, it was held over forty years ago and the decision then given had never been questioned in Ryhope Coal Company Limited v. Foyer (45 L. T. Rep. 407; 7 Q. B. Div. 485, at p. 496) that an extraordinary and abnormal trade depression might amount to a specific cause for the falling off in profits, and the very abnormal depression which had taken place here was a specific cause and brought the respondents within the benefit provided by the rule.

Lord

[Elliott v. Duchess Mill Limited. Ct. of App.: Hanworth, M.R., Scrutton, L.J. and Romer, J. July 9, 12, and 13.-Counsel: for the appellants, Sir Douglas Hogg, K.C. (A.-G.) and Reginald P. Hills; for the respondent company, F. H. Maugham, K.C., A. M. Latter, K.C., and Cyril King. Solicitors for the appellants, The Solicitor of Inland Revenue; for the respondent company, Rawle, Johnstone, and Co., for John Taylor and Co., Manchester.] Ship Harbour master-Directions to vessels entering harbour— Regulation of speed, place of anchorage and movement within harbour-Regulation not to apply when qualified pilot on board-Whether invalid, unreasonable, or ultra viresWhether "directions" within meaning of Harbours, Docks, and Piers Clauses Act 1847, s. 52.

Under the provisions of sect. 52 of the Harbours, Docks, and Piers Clauses Act 1847 a harbour master may give directions for the purpose of regulating the time at which,

or manner in which, any vessel may enter into, go out of, or lie in or at any harbour, dock, or pier, or within the prescribed limits, if any, and by sect. 53 a penalty is provided for any master navigating otherwise than in accordance with such regulations after notice of any such direction of the harbour master duly served upon him. The plaintiffs, the owners and masters of certain vessels trading to the port of Fowey, claimed against the defendants the commissioners and harbour master of the port of Fowey a declaration that certain directions given by the harbour master and served by him upon the plaintiffs were invalid, unenforceable, and of no effect. The directions in respect of which the declaration was sought, which were in writing and were duly served by the harbour master upon the plaintiffs, were to the following effect: (1) That the plaintif s' vessels between the hours of sunrise and sunset should proceed up the harbour at Fowey at a pace not exceeding three miles per hour; (2) that between sunset and sunrise they should anchor in a particular place specified by reference to a chart attached to the directions; (3) that they should not at any time proceed above a certain-named point without the sanction of the harbour master; (4) that they should not at any time be moved within the limits without notifying the harbour master, unless in either case they had a qualified pilot on board. Pilotage is not compulsory at Fowey since 1921.

Held, reversing Bateson, J. (reported 161 L. T. Jour. 150) that, taking the regulations as a whole, it was quite easy to visualise circumstances in which they were neither fair nor reasonable; that the directions were more in the nature of by-laws than regulations, and that they did not come within the power to make regulations conferred by sect. 52 of the Harbour, Docks, and Piers Clauses Act 1847. Appeal allowed, and declaration that the directions were not enforceable granted.

[Richard Hughes and Co. and others v. Fowey Harbour Commissioners and another. Ct. of App.: Bankes, Atkin, and Sargant, L.JJ. July 10 and 12.-Counsel : Dunlop, K.C. and R. K. Chappell.; Raeburn, K.C., Dumas and Nesbitt. Solicitors Rawle, Johnstone, and Co., agents for Hill, Dickinson, and Co., Liverpool; Hancock and Willis, agents for Stephens, Graham, and Wright, Fowey.]

Ship Limitation of liability--Dock owner-Ship repairer also owner of dry dock-Damage caused to vessel whilst undergoing repair-Right of repairer-dockowner to limit liability— Merchant Shipping (Liability of Shipowners and Others) Act 1900 (63 & 64 Vict. c. 32), s. 2.

The plaintiffs claimed to limit their liability in respect of damage sustained by the defendants' vessel whilst undergoing repairs in the plaintiffs' dry dock. The damage was caused by fire due to the negligence of the plaintiffs' servants whilst performing the repairs in the plaintiff's dry dock. The plaintiffs carried on business as ship repairers and were also the owners of dry docks used in conjunction with their repairing business. By the Merchant Shipping (Liability of Shipowners and Others) Act 1900 the owners of any dock are not, where without their actual fault or privity any loss or damage is caused to any vessel or vessels, liable to damages beyond an aggregate amount not exceeding £8 for each ton of the tonnage of the largest registered British ship which at the time of such loss or damage occurring was, or within the period of five years previous thereto had been, within the area over which such dock owners exercise any power. The plaintiffs claimed to limit their liability in respect of the damage sustained by the defendants' vessel to a sum calculated upon the tonnage of the largest vessel which had been within the previous five years in their dry dock, upon the ground that the right of limitation extended to any act done within the area of their dock, and therefore extended to the present case. Hill, J. dismissed the claim, holding that the words of the section were to be construed subject to some limitation, and that the decision of the Court of Appeal in The City of Edinburgh (125 L. T. Rep. 375; (1921) P. 274; 15 Asp. Mar. Law Cas. 234) had imposed a limitation in respect of liability incurred in the capacity of a dock-owner: (161 L. T. Jour. 299).

Held, reversing Hill, J., that the section should not be read subject to a limitation in respect of the nature of the act done, but the proper limitation was in respect of the area in which the act was done. Thus, notwithstanding that the negligent act of the plaintiffs had been done in

their capacity as ship repairers, they were, nevertheless, entitled to limit their liability as prayed, since the act was done within the area of their dock.

[The Ruapehu. Ct. of App. : Bankes, Atkin, and Sargant, L.JJ. July 14.-Counsel: Langton, K.C. and Carpmael; Jowitt, K.C. and Pilcher. Solicitors: Messrs. Pritchard and Sons; Messrs. William A. Crump and Son.]

Workmen's compensation Incapacity-Medical examination on behalf of employer-Medical certificate-Notice to diminish compensation Notice and certificate not served on workman within six days—Time limit-Notice ineffectual-Workmen's Compensation Act 1923, s. 14.

Appeal from an award of the County Court judge at Leeds, sitting as arbitrator under the Workmen's Compensation Acts 1906 and 1923. The applicant, who had been injured by accident arising out of his employment, was in receipt of 21s. 1d. a week compensation at the beginning of 1926. On the 13th Jan. 1926 the employers' doctor examined him and certified that he had partially recovered. The employers gave notice to the workman that they intended to reduce the compensation payable to 10s. 6d. a week, and sent a copy of their medical adviser's certificate, but neither notice nor certificate was sent off within six days from the date of the certificate, and they only reached the workman on the 21st Jan. The workman took no counterstep under sect. 14, but commenced proceedings for an award of compensation on the 25th March. On the 4th May the County Court judge decided that the workman had partially recovered, and was only entitled to 10s. 6d. a week. The workman appealed.

Held, the appeal must be allowed as to the compensation payable in the interval. If an employer takes steps under sect. 14 of the Act of 1923 (now sect. 12 of the Act of 1925) to end or diminish the weekly payment, he must observe all the conditions of Sched. I. (15) of the original Act (now sect. 19 of the Act of 1925), and there is no jurisdiction in the event of a difference between the employers and the workman's medical advisers to have the matter sent to and decided by a medical referee, unless a copy of the medical certificate of the employers' doctor is sent to the workman within six days of its date: (James v. Grovesend Steel and Tinplate Company, 133 L. T. Rep. 744).

[Gillett v. John Fowler and Co. (Leeds) Limited. Ct. of App.: Lord Hanworth, M.R., Scrutton, L.J., Russell, J. June 24.-Counsel: Cave, K.C. and Duckworth; WingateSaul, K.C. and W. Stewart. Solicitors: H. H. Moseley, for Arthur Willey, Hargrave, and Co., Leeds; Vincent and Vincent, for Day and Yewdall, Leeds.]

CHANCERY DIVISION Contract-Restraint of trade-Restriction on carrying on similar business at end of contract-Twenty-five mile area— —Soliciting customers-Inclusion of customers during time of service and afterwards-Reasonableness-Severability.

By a contract dated the 1st Dec. 1923 the defendant was engaged by the plaintiff society as manager of their society, and clause 13 was as follows: "After the manager ceases to be in the employ of the society he shall not for a period of ten years or for such part of the period of ten years as the said business (namely, the business of the plaintiff society) shall continue to be carried on be employed in carrying on or be concerned in carrying on either directly or indirectly a similar business in or within 25 miles of Southminster aforesaid or solicit any of the customers of the said business to deal otherwise than with the society or the persons then carrying on the said business so far as concerns goods supplied in the course of the said business." The plaintiffs carried on the business of a co-operative society dealing in farm produce, &c., and the defendant was left almost in unfettered control, so that his employment was confidential. The defendant, at the request of the committee of management of the society, resigned on the 9th July 1925. The plaintiffs alleged that the defendant, in breach of clause 13, was now in the employment of or otherwise concerned in T. C. S. and Co., carrying on in and around Southminster a like business to that of the plaintiff society, and was soliciting persons who are and were at all material times customers of the plaintiff society, and claimed an injunction restraining the defendant for a period of ten years, from the 9th July 1925, or so long during that time as the plaintiff's business was carried on, from being employed or concerned in carrying on the

business of T. C. S. and Co., or any similar business within twenty-five miles of Southminster, or from soliciting any of the members or customers of the plaintiff society, or any such who were on the books of the plaintiff society, or any such who were on the 9th July 1925 members or customers of the plaintiff society. The defendant pleaded that clause 13 was an unreasonable and unnecessary restraint of the defendant's trade contrary to public policy and illegal.

Held, that it was well settled that primâ facie such a clause was invalid unless the employers could show that special circumstances rendered it necessary for the protection of their trade, and on the evidence the area of 25 miles was far too wide for the purpose of merely protecting the plaintiffs in their business, and, further, the clause was too wide in that it included soliciting customers who were customers not only during the agreement for service, but also persons who became customers after the determination of the defendant's service, and the agreement, not being severable and being unreasonable, was bad; on the question of soliciting customers the decision in Konski v. Peet (112 L. T. Rep. 1107; (1915) 1 Ch. 530, 539) of Neville, J. preferred to the dicta of Lord Esher in Dubowski and Sons v. Goldstein (74 L. T. Rep. 180; (1896) 1 Q. B. 478, 482, 483, 486).

[East Essex Farmers Limited v. Holden. Ch. Div. : P. O. Lawrence, J. July 1.-Counsel: C. E. E. Jenkins, K.C. and F. R. Evershed; Owen Thompson, K.C. and R. Fortune. Solicitors: J. Wylie Patterson; Ernest G. Scott.]

KING'S BENCH DIVISION Insurance (Marine)-Certificate of policy of-Rights of holder of certificate—Notice of claim clause, effect of.

The defendants issued a certificate of insurance dated the 16th May 1919 on 281 bales of shoe leather to the value of $10,000 for a voyage from New York to Tunis. The material portion of the certificate was worded as follows : "This certificate represents and takes the place of the policy and covers all the rights of the original policy-holder as fully as if the property were covered by a special policy direct to the holder of this certificate." The bales were taken from New York to Algiers by one steamer and there transhipped to another which carried them to Tunis. Both steamers met with bad weather. The bales were consigned c.i.f. to a firm called Medina, who sold them to the plaintiff. The plaintiff examined the consignment and found that the leather had been damaged by salt-water. As holder of the certificate the plaintiff claimed under the policy but the defendants refused to pay, putting the facts in issue and raising two points of law: (a) that the plaintiff was not the right person to bring the action, and (b) that notice of claim had not been given as required by a clause in the policy. This clause was printed in the smallest possible type and read as follows: "In case of loss or damage to the property hereby insured the loss shall be reported to the representative of the company, or, if there be no representative of the company, to Lloyd's agent, as soon as the goods are landed or the loss is known or expected."

Held on the evidence that damage to the property insured had occurred and that from the very wording of the certificate it inured to the benefit of the plaintiff who therefore had the right to sue and maintain an action on the policy. This was a case of a company disputing its own document and not a case of buyer and seller, and therefore the principle of Diamond Alkali Company v. Bourgeois (126 L. T. Rep. 379 ; (1921) 3 K. B. 443) and Scott and Co. v. Barclay's Bank Limited (129 L. T. Rep. 108; (1923) 2 K. B. 1) had no application. As regards the notice of claim clause, the point was one of construction, and as Buckley L.J. said in Re Coleman's Depositories (97 L. T. Rep. 420; (1907) 2 K. B. 798) authorities were of little or no value on such a question. Was this clause a condition precedent and even if it were, was the plaintiff bound by it? The clause was printed in the smallest possible type, much smaller than in other parts of the policy, and was not such a clause as a reasonable man reading the document with reasonable care would regard as forming part of the contract: (Roe v. Naylor, 119 L. T. Rep. 359, C. A. ; (1917) 1 K. B. 712). Held, therefore, whether it were a condition precedent or not, the plaintiff was not bound by it.

[D. and J. Koskas v. Standard Marine Insurance Company Limited. K. B. Div.: Sankey, J. July 7.-Counsel:

for the plaintiff, Porter K.C. and J. St. C. Lindsay; for the defendants, Greaves Lord K.C. and Chappell. Solicitors : for the plaintiff, Waltons and Co.; for the defendants, Finch, Jennings, and Co., for Weightman, Pedder, and Co., Liverpool.]

LAW LIBRARY

We have received from Messrs. Butterworth and Co. The Journal of the Society of Public Teachers of Law for 1926, edited by Mr. H. F. Jolowicz. Mr. J. L. Brierly, Chichele Professor of Oxford, discusses International Law as a subject of Education, and Mr. J. H. Wigmore, Dean of the North-Western University, Chicago, presents a New Way of teaching Comparative Law. The Law Society's School of Law is dealt with by Mr. E. C. S. Wade, and the Teaching of Roman Law by the Editor. Twenty-four pages are devoted to the review of current legal literature.

Messrs. Sweet and Maxwell Limited have just published a supplement to Chilcott's Charities, a work that was issued in 1912. It contains the Charitable Trust Acts of 1914 and 1925, the War Charities Act of 1916, and the material portions of the Settled Land Act 1925.

An interesting addition to modern anthropological research is made by Crime and Custom in Savage Society, by Dr. Bronislaw Malinowski. The book is divided into two parts, the first of which deals with primitive law and order, and the second with primitive crime and its punishment. It affords an exceedingly valuable insight into primitive jurisprudence.

Nouvelle Série. No. 2, Mai 1926. Staempfli and Cie, Berne. Price 3 Fcs (Swiss).

Cinquantenaire de la Faculté de Droit. Université de Lyon, 18 Mars 1926. Bosc Frères et Riou, 42, Quai Gailleton, Lyon.

Reports of Tax Cases. Vol. X. Parts 3 and 4. H.M. Stationery Office, Adastral House, Kingsway, W.C. 2. Price 1s. each net.

Rowlatt on Principal and Surety. Sweet and Maxwell Limited, 2 and 3, Chancery-lane, W.C. 2. Price £1 2s. 6d. net.

Touche and Ruegg on Criminal Procedure. Stevens and Sons, 119 and 120, Chancery-lane, W.C. 2. Price 6s. net.

Levie's Handbook of Company Law in Scotland. William Hodge and Co., 12, Bank-street, Edinburgh. Price 10s. 6d.

net.

Wilshere's Analysis of Williams on the Law of Real Property. Fifth Edition. Sweet and Maxwell Limited, 2 and 3, Chancery-lane, W.C. 2. Price 7s. 6d. net.

The Law Quarterly Review. Vol. XLII., No. 167. July 1926. Edited by A. L. Goodhart. Stevens and Sons Limited, 119 and 120, Chancery-lane. Price 6s. net. (Annual subscription, post free, 20s.).

Mr. Arthur Augustus Walker, solicitor, of Cambridge, left estate of the gross value of £12,922.

Mr. Charles Reginald Garveys Grylls, solicitor, of Launceston, left estate of the gross value of £15,935.

The

It would not be easy to say off-hand how many attempts, each of which has been belauded by its advocates and derided by its critics, have been made to encourage the provision of these holdings. The new Bill introduced at this stage of the session can scarcely fail to find strenuous opposition in regard to its details and has already been described, as regards its main features, as inadequate and utterly futile. On the other hand, the Minister of Agriculture, who introduced the measure, claimed some advantages for it which, if borne out by the experience of its practical working, may afford justification for its courage. The methods now proposed are not those upon which was based the Act of 1919. cost to the State of the new scheme is estimated at six millions for the provision of 8000 holdings, averaging £750 each. The Bill makes it the duty of a county council, when it is satisfied that there is a demand for small holdings, either to buy or to lease, by persons who are themselves able to cultivate them properly, to provide such holdings. It is, however, a condition that the council must be of opinion that they can do so without incurring loss. Even if the council anticipates a loss there is still under this clause a permission, as contrasted with a duty, to provide the holdings, and should the loss appear to be likely the suggestion is that the council should lay before the Minister their proposals and estimates, and there is power given to him, with the Treasury's approval, to make contribution thereto to such an amount as may be specified in the approval. In considering whether an approval will be given or withheld the Minister will require to be satisfied that each holding pays its full fair rent, i.e., the rent which a tenant might reasonably be expected to pay for it if let as such and the landlord undertook all the repairs. The powers of the council extend to the sale or letting of holdings to co-operative societies if it approves the system, or to associations formed for the promotion of small holdings where the profits are not divisible amongst the members of the associations. These latter powers to sell or let require the Minister's consent. To facilitate the provision of the land needed the county councils are enabled to purchase or to take on lease either within or without their respective areas. If the terms cannot be agreed the purchase or lease may be compulsory in accordance with the Small Holdings and Allotments Act 1908, the Minister's consent being necessary unless the council is satisfied that the transaction will involve no loss. If the council acquires land without such consent the Minister is precluded from making any contribution towards the cost of acquisition. Purchase and Conditions

THE Consideration for sale of a small holding by a county council is to be a terminable annuity of a sum equal to the full fair rent for sixty years or, if the purchaser prefers it, a terminable annuity for less than sixty years based on capital value. The determination of what these sums would amount to is left to the councils. After a holding has been sold it must be held for a term of forty years from the sale and thereafter as long as it remains charged with the terminable annuity subject to certain conditions which (a) prohibit division or subletting, (b) make the owner or occupier cultivate it, (c) preclude more than one house being built on it, (d) make it necessary to comply with requirements as to health, (e) forbid the sale of intoxicants on any building. and (f) if the holding is one upon which no dwelling-house should be erected, then erection is made contrary to the conditions unless the council consents. There is, however, power, with or without consideration, to relax or dispense with these conditions on terms which may include a requirement as to the consideration to be charged and its appli