204. We venture to prefer these judicial opinions, without prejudice to the acceptance of Mr. Cohen's practical conclusion.

With regard to the Taff Vale case, the majority of the Commission are satisfied that the law laid down by the House of Lords involved no new principle, and was not inconsistent with the legislation of 1871.' The difficulty of suing a trade union was a difficulty not of principle but of parties, which could not be overcome so long as the equitable method of procedure in representative suits was unknown in courts of Common Law, or, since the Judicature Acts, while it was thought that the Rules of Court adopting that method were inapplicable to trade unions. For any resulting inconvenience the proper remedy is not to set trade unions above the law, but to provide facilities for the separation of militant' from 'benevolent' funds. Space and time do not allow us to say more at this stage of the recommendations made. by the report, or anything of pending legislation.

F. P.

A will dealing with movable estate, which was duly executed by an unmarried woman domiciled in England, is not revoked by her subsequent marriage in England to a man domiciled in Scotland.

This is the point decided by the Court of Session, in Westerman (Westerman's Executor) v. Schwab and Others, 43 Scottish Law Reporter, 161. The point is a nice one and the textbooks do not throw much if any light on the subject. At first sight it might, on merely logical grounds, appear that the Court of Session had come to a wrong conclusion.

The argument against the judgment of the Court may be thus put: Under the Law of England a marriage revokes any will made before marriage by a testator or testatrix (Wills Act, 1837, 1 Vict. c. 26, § 18). W., the wife, was a domiciled Englishwoman. It was in England that her marriage took place. Up to the moment of her marriage she was admittedly subject to the law of England. No doubt by marriage with H., her husband, who was domiciled in Scotland, she became a domiciled Scotswoman, and thereby subject to Scotch law, under which marriage does not revoke a will made before marriage. But the very act of marrying, which gave her a new domicil, took place under English law and revoked her English will. It may indeed be urged that from and after her marriage her domicil was changed. But at the very moment of her marriage the will was under English law revoked. This argument has a certain logical plausibility, but even as a matter of logic its force is doubtful. W.'s change of domicil was simultaneous with her marriage. Till she ceased to be subject to the law of England she was not married; and therefore her will till then

remained valid; the moment that the marriage took place she became subject to the law of Scotland; but under the law of Scotland the will remained valid.

But in truth the matter cannot be decided by logical subtilties, which may be equally well turned now one way and now another. The judgment of the Court of Session is justified by two broad considerations:

1. The judgment is strictly in conformity with Loustalan v. Loustalan [1900] P. 218. It is true that in that case the English Court of Appeal did not determine the point which came before the Court of Session. It is also true that a Scotch Court is by no means bound by an English decision. But, on the other hand, the judgments in Loustalan v. Loustalan, though they do not decide the particular point raised in Westerman v. Schwab, all rest on the assumption that the effect of a marriage is to be determined by the law of the husband's domicil, and the Court of Session, though in no way bound by the judgment of any English Court, naturally desires that rules as to the conflict of laws should be the same throughout the whole of the United Kingdom, and naturally inclines towards the establishment of a clear and intelligible rule as to the effect of marriage.

2. The judgment of the Court of Session is at bottom in conformity with principle. W.'s will was admittedly valid up to the moment of her marriage. The rule of English law, that marriage revokes a will, is clearly intended to apply to persons being and remaining under the law of England. English law has no interest in and does not aim at determining the validity of wills of persons domiciled in another country. W.'s will would have been valid if made by a domiciled Scotswoman; it remained valid as long as she was a domiciled English woman. Is there any sound reason why a Scotch court should hold invalid a will that was admittedly valid both in England and Scotland till the moment of W.'s marriage, and which would have been valid both in England and Scotland if made the moment after W.'s marriage? To answer this question in the affirmative, plausible though the reply may seem, is to sacrifice substance to form, and to invalidate a will held good by Scotch law on a sort of logical fiction, that at the very completion of the marriage ceremony there was a moment when W. was still a domiciled English woman though on the point of becoming a domiciled Scotswoman, and that at that imaginary moment she revoked her will. A. V. D.

Macmillan & Co. v. Dent [1906] 1 Ch. 101, 75 L. J. Ch. 99, raised a new and curious point as to rights of publication. The owners

of certain unpublished letters of Charles Lamb's assigned all their right to publish them (erroneously called copyright) to Smith, Elder & Co., who did publish them in 1898. Smith, Elder & Co. consented to a republication by Macmillan & Co. in 1899. In 1903 Dent bought the originals from the owners, to whom they had been returned. The receipt for the purchase-money purported to assign any other right the owners might still have in the letters, which obviously was none. In 1903 Dent issued a new edition of these among other letters of Lamb's without any further consent. Section 3 of the Copyright Act, 1842, vests the copyright of posthumous publications in the proprietor of the author's MS. and his assigns. Smith, Elder & Co., clearly being such assigns, sued for an injunction to restrain Dent's publication, and consequential relief. It was argued, indeed, that the words 'proprietor of the author's manuscript' do not mean the owner of the material document; but we cannot regard this as anything but a desperate argument, though it seems to have been mainly relied on for the defendant. Then Dent set up a title (acquired after action brought) as assign of Charles Lamb's legal personal representatives. On these facts Kekewich J. held that the Copyright Act not only gives the owner of a deceased author's MS. letters the copyright after publication, but (if we rightly understand him) deprives the author's executors of any right to object to the letters being published.

We cannot agree with this view, whether it is or is not that which the learned judge in truth intended to convey. The Copyright Act deals only with the statutory right of those who have lawfully published books to restrain others from reprinting them for sale. It does not in any way deal with the common-law right, where it exists, to restrain the publication of unpublished matter. The publication mentioned in the latter part of sect. 3 must be taken to be a publication in itself lawful. On the ground of policy, it is incredible that the Legislature should have intended to enable the possessor of every man's private letters to publish them immediately after his death without regard to his wishes (however well known in fact) or those of his family. Conceive the consequence of applying this doctrine to the letters of such a man as Mr. Gladstone or Lord Acton. So far, then, it would seem that the reason expressed by the learned judge cannot be supported.

Nevertheless we think the actual decision right. These letters were published seven years ago without any objection from Charles Lamb's representatives. Now the common-law right of an author's executor is merely negative; and the Court quite rightly held that there is nothing in the Copyright Act to increase it. If he does not possess a copy of any letter, he has no claim on the original in the

hands of the addressee, who is no more bound to produce than to preserve it. He may publish, not because he has any special title to do so, but because no one else can do so without his consent. If the executor does publish, he can acquire copyright, in the proper sense, under the Act. If he stands by while other people publish, there is no reason why they should not acquire copyright against all the world, including himself. He cannot acquiesce for an indefinite time and then come forward with a claim founded on a stale objection. This, we think, would be sufficient for the decision of the case. Further, we submit that the author's right, though called proprietary in the poverty of our legal vocabulary, is in truth a right for the protection of privacy, and not for making gain or levying contributions after the subject-matter has been given to the public. It is in the nature of a personal right and not of saleable property, and, if this be so, the attempt to assign it to a stranger, as a bare abstract right to publish or restrain publication, is inoperative. We understand the case is going to the Court of Appeal, where we trust that full consideration and exposition will be given to a subject admitted on all hands to be still obscure, and not much illuminated by a judgment inevitably addressed to an argument which had 'made that darker which was dark enough without' by mixing up the guiding principles of the law with an adventurous construction of one of the worst penned Acts in the statute-book.

F. P.

The decision of the Court of Appeal in Elliott v. Crutchley (see L. Q. R. xx. 109), on a contract with a caterer to supply refreshments for an intended excursion to the coronation review at Spithead in 1902, which expressly dealt with the contingency of the review being cancelled, has been affirmed by the House of Lords [1906] A. C. 7, 75 L. J. K. B. 147. As the judgments are quite short, and proceed wholly on the construction of the special agreement, there is nothing of substance to add to our former note. Indeed, the construction appeared so plain to their Lordships that they did not require any argument from the respondent's counsel.

The Californian manufacturer may well regard the English limited company as a very undesirable alien,' and in the future. the State of California will probably put the immigrant company on terms when it comes to do business. But the limited liability principle would have sustained a very severe shock if the Court of Appeal had come to any other conclusion in Risdon Iron & Locomotive Works v. Furness [1906] 1 K. B. 49, 75 L. J. K. B. 83, than it did. By Californian law every individual shareholder in the English

company was undoubtedly liable for an aliquot part of the debt, and the Californian creditor's contention was that the shareholders, having by the memorandum of association empowered the company to trade abroad and to 'comply with any statutory enactment rule or regulation in any country, colony, or place where the company might carry on business,' gave the company an implied authority to pledge their individual credit to any person dealing with the company in California. The argument was a plausible one, but it ignored an essential factor in the case-the nature of an English limited liability company's constitution. One of the fundamental conditions the fundamental condition in fact-of such constitution is the immunity of shareholders from all personal liability other than that of paying up their shares, and this immunity-being constitutional-follows the company wherever it goes, and conditions all its contracts. Any powers given by the company's memorandum to comply with the statutory enactment of a foreign country must be read so as not to contravene this primary and paramount principle of the company's constitution. If it does it must be rejected. This is all ABC to us, but the foreign manufacturer may well see in it something of a trap.

'Qui sentit commodum sentire debet et onus' is a very respectable and rational maxim of our law, and it found its application in In re Glasdir Copper Mines, Lim. [1906] 1 Ch. 365, 75 L. J. Ch. 109, C. A. There was in that case what is known as a 'debentureholders' liquidation,' and to carry it on and keep the business going as a saleable asset a receiver and manager had been appointed in the usual way at the instance of the plaintiff debentureholders. But money was wanting, and when a company is insolvent and its assets overmortgaged to debentureholders, money is not easy to get. It can only be got in fact by the debentureholders letting in an outside lender to rank before them, or themselves advancing the money. In Re Glasdir the debentureholders advanced it themselves, the order which authorized the borrowing stating that it was 'for the purpose of preserving the property of the company comprised in or charged by the security created by the debentures,' and making the borrowed money a 'first charge on such property.' Unfortunately the money was advanced in vain, and when the business came to be realized there was not enough to pay both the loan and the receiver's costs, expenses, and remuneration. Which was to have priority? The Court of Appeal has answered the question by saying, The receiver. The debentureholders take the benefit of his work, and ought to take it with the burden. When the loan is