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In reference to this subject Aneurin Owen, the editor of the Welsh Laws, wrote, the fire being on the hearth, a large and durable stone was selected for the purpose; and a similar one for a back-stone (pen-tan-faen) which generally would outlast the destruction of a fragile building, and being pointed out would be proof that a claimant's ancestors formerly resided there.'

To the authorities cited in the reporter's note add-' Hastre, the hertstone [i.e. hearthstone]' in Bibblesworth's Glossary, ap. Wright Voc. 170. J. G. W.

The reversal by the Law Lords of the decision of the Court of Appeal in Sheffield Corporation v. Barclay ([1905] A. C. 392, 74 L. J. K. B. 747) is extremely disconcerting to those who have followed the current of decision in this class of cases. Two trustees, A and B, have stock of the Sheffield Corporation, to the amount of £8,200, standing in their names. A executes a transfer of the stock to Barclay & Co. Lim., the well-known bankers, to secure an advance, forging B's name; the bank sends in the transfer to the Corporation for registration, and the Corporation registers the bank as holder of the stock. Eight years later the forgery is discovered and B, the innocent trustee, calls on the Corporation to reinstate him as holder of the £8,200 stock, and the Corporation, having wrongfully transferred the stock, has no option but to do so, buying stock for the purpose. But having done that, the Corporation turns upon the bank, and says, 'You must indemnify the Corporation. You brought it a forged transfer, and the Corporation innocently registered it. You ought to bear the loss.' This view the Court of Appeal declined to accept-holding that the bank's sending in the transfer for registration imported no warranty of the genuineness of the transfer, and amounted merely to calling on the Corporation to perform its statutory obligation (substantially the same as a company's under the Companies Act) to register the transferee and issue him a certificate of title, subject of course to any inquiries which the Corporation might think proper to make with regard to the genuineness of the transfer. Now we have the House of Lords setting aside this view and adopting the following test: Here is a balance of equities: one of two innocent persons must suffer by a fraud: which of them had the better means of finding out the fraud-Corporation or Bank?' And the answer they give is in favour of the Corporation. The transferor was a customer of the bank-was borrowing from it-and the bank had the better opportunity of finding out whether the transfer was genuine or not. The decision thus really turns on the special facts of the case more than on any general principles. The strange thing is that the Law Lords speak

throughout of the Corporation acting 'ministerially' in registering the transfer, as though a company were not the guardian of its register of members. No doubt in practice-owing to the rarity of fraud-registration of transfers tends to become an automatic process, but in theory a company is bound to exercise an active supervision to keep its register correct, and properly drawn articles always empower the company on the tender of a transfer for registration to require what evidence it thinks fit of the transferor's title. If the ministerial view of a company's duty in regard to its register is to prevail it will lead to great laxity on the part of companies. E. M.

The Legislature has provided many pretty puzzles for the Courts, and one of them is the much-vexed clause (h) of s. 4 of the Bankruptcy Act, 1883, making it an act of bankruptcy by a debtor if he 'gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts.' The origin of this new act of bankruptcy was that, prior to 1883, a trader often sent out a notice saying that he was about to suspend payment, and then the notice notwithstanding-entered into some dealing with one or more of his creditors which was unfair to the rest. By making the notice an act of bankruptcy, the title of the trustee related back to it and undid these intermediate transactions in fraud of the general body of creditors. This was the policy of the clause; but clauses defining acts of bankruptcy have to be strictly construed, because they entail disabilities and often penal consequences. This made the difficulty in Clough v. Samuel ([1905] A. C. 442, 74 L. J. K. B. 918). What the debtor there had done was to tell some of his principal creditors, who were members of the Stock Exchange, that he was in difficulties and could not meet his engagements, and that they might close their accounts at once so as to diminish the loss as much as possible. In fact, the debtor was hopelessly insolvent, and if the test in such cases is, as Bowen L. J. held in Re Lamb (4 Morr. 25, 32), what would an ordinary man of business, receiving such a notice, conclude from it under the circumstances, then certainly the debtor had committed an act of bankruptcy; but after Lord Halsbury's opinion in Clough v. Samuel that test can hardly be maintained. The true test is, not what creditors may infer, but what the debtor has done, and so reading the section Lord Halsbury and Lord Robertson held that the debtor had never given notice that he had suspended, or was about to suspend, payment of his debts. Weighty as Lord Macnaghten's dissenting opinion is, it shifts the point of view from the strict construction of the clause to the standpoint of public policy.

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One or two ingenious publicists have ascribed more constitutional importance to the judgment of the Judicial Committee in Williams v. Howarth [1905] A. C. 551, 74 L. J. P. C. 115, than in our opinion really belongs to it. The plaintiff in the cause below was a volunteer from New South Wales in the South African war engaged by his own Government at the rate of 10s. a day. During his active service he received Imperial pay at the rate of 4s. 6d. a day. The Supreme Court of New South Wales held that this 48. 6d. was not a satisfaction pro tanto of the 108. for which he had bargained, but something outside the contract, unless it could be shown affirmatively that the Imperial Government paid it on behalf of the Colonial Government. The Judicial Committee reversed this decision, holding that the service was the King's service, and the persons in authority who paid or undertook to pay the plaintiff were alike the King's agents; and it made no difference (we must understand) that some agent in New South Wales was, under the local law and practice, liable to be sued in an ordinary action. In common justice it seems obvious that nobody intended the plaintiff to have more than 10s. a day, and that his claim was an attempt to take advantage of a technicality. Nor does there seem to be any great difficulty in making the law support the justice of the case. The service for which the plaintiff volunteered was that of the Empire, not that of New South Wales in particular; though it is true there is, at present, no satisfactory legal form of expressing the equally certain fact that it was also not any particular service of the United Kingdom. If the service, or any of it, had really been rendered in this Colony,' i. e. New South Wales, as supposed by the Court below, the question would have been different. As it was, there was only one service for the whole British army in South Africa, colonial contingents and all, and there was no reason whatever to presume that the Colonial Government bound itself for payment by any particular hand or out of any particular fund. No doubt the credit of the Colony was pledged to payment in full somehow; but there was no separate colonial service at all. The decision, therefore, does not in any way solve or prejudge the difficult theoretical questions which may possibly arise in matters where the King is confronted with himself, so to speak, as general nominal owner both of national or rather imperial property and of all that belongs to Commonwealth or Dominion, State or Province, and as representative of all these distinct interests. What we may be pretty sure of is that the Judicial Committee will not allow substantial justice, even in a more troublesome case than the present, to be defeated by any amount of speculative ingenuity.

The broad result of De Beers Consolidated Mines Ltd. v. Howe [1905] 2 K. B. 612, 74 L. J. K. B. 934, C. A., is this: No company which in reality is managed in England or in reality makes the whole of its profits from transactions in England can escape taxation on those profits under the Income Tax Act, 1853 (16 & 17 Vict. c. 34), s. 2, sched. D. Tho Court will look wholly to the real facts of each case. That a company is incorporated and registered under the law of a foreign country, that its head office is nominally in that country, and that the work of the company, e.g. obtaining diamonds from mines, is in a foreign country, will not suffice to exempt it from income tax if its management be really carried on in England, and its gains really result from transactions in England. This way of disposing of nice legal questions by looking to the facts of each particular case is characteristic of our Courts, but it sometimes leads to a certain neglect of real though fine legal problems. One may be allowed to doubt whether at bottom De Beers Consolidated Mines Ltd. v. Howe is quite consistent with Grainger v. Gough [1896] A. C. 325. It is a little difficult to see why profits obtainable by a foreign firm from English customers as a result of canvassing in England for orders were not assessable to income tax as profits of a trade exercised or carried on in England.

Constantinidi v. Constantinidi & Lance [1905] P. 253, 74 L. J. P. 122, C. A. illustrates the width and the beneficial character of the discretion left to the Divorce Court in varying settlements so as to do justice between the divorced parties. In this instance neither husband nor wife could command the sympathy of any moralist, but it appeared that the husband, whose conduct was flagrantly immoral, was trying in effect to retain a comfortable income for himself out of his divorced wife's property. There were no children. The Court refused to give the husband an advantage which would have been opposed to the interest of public morality and of decency.

The landlord of a weekly tenant, not being bound to repair, agrees to repair the floor of the house in consideration of the tenant not giving notice to quit. Some time passes without anything being done, and the tenant's wife suffers personal injury from her chair going through a hole in the floor. Has she a separate right of action? Not in contract, it is conceded. Not in tort on the ground of invitation, say the majority of the Court of Appeal, for she knew the state of the floor, and the defendant had not possession or control of the tenement; nor on the ground of deceit, for there was no misrepresentation of fact: Cavalier v. Pope [1905] 2 K. B. 757, 74 L. J. K. B. 857, per Collins M. R.

and Romer L. J. diss. Mathew L.J. The dissenting judgment ingeniously suggests, as an inference of fact, that the defendant's promise to repair was made without any intention of performing it. This, if established, would no doubt make the contract fraudulent as against the husband and voidable at his option: but in fact the husband sued on the contract and recovered damages. In any case, would even this amount to an actionable deceit as against every other inmate of the house who might suffer from the repairs. not being done? for it seems the argument must go that length. The Lord Justice's reasons go dangerously near an attempt to revive the supposed equitable doctrine of 'making representations good,' which is now thoroughly exploded: Re Fickus [1900] 1 Ch. 331, 69 L. J. Ch. 161. It was a rather hard case, but we think a contrary decision would have made bad law.

In Woodall v. Clifton [1905] 2 Ch. 257, 74 L. J. Ch. 555, the Court of Appeal decided a rather neat conveyancing point. A covenant or proviso in a lease giving the lessee an option of purchasing the reversion upon stated conditions at any time during the term is not within the statute of Henry VIII, and the burden of it does not run with the reversion. The reason is that, being 'in reality not a covenant concerning the tenancy or its terms,' it does not 'touch or affect the land demised.' Although the result of the option, if exercised, may be to destroy the tenancy, it is in itself outside the relation of landlord and tenant, and does not concern the land so far as it is the subject-matter of the lease. A contrary decision would, as the Court said, lead to troublesome questions about perpetuities and otherwise. The way of escape which the Court has provided is both astute and elegant.

There is no such rule of law as that a boarding-house keeper is under no duty to take care of his boarder's goods unless they are handed to him for safe custody. So much, at all events, is decided by the Court of Appeal in Scarborough v. Cosgrove [1905] 2 K. B. 805, 74 L. J. K. B. 892, and the result appears to be good sense. As to what is affirmatively the boarding-house keeper's duty, there seems to be a choice between holding that it is an implied term of the contract that he shall take ordinary care of a paying guest's goods in his custody (Collins M. R. and Mathew L. J.), and preferring to lay down a general duty to conduct the business in a reasonable manner, which must be interpreted in every case, be it loss of goods or other damage, according to the particular circumstances (Romer L. J.). The Court was unanimous in ordering a new trial. There is, of course, no question of any general common law duty resembling that of an innkeeper.

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