as to the validity of this bequest, the trustees of the will took out an originating summons 1 to determine whether it constituted a good charitable gift.

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Russell J.2 held that the gift failed, for the reason that under its terms the trustees could apply the trust property for purposes not necessarily charitable: and this view, approved by the Court of Appeal, was sustained by the House of Lords. There the judgment of the Court, delivered by Cave L.C., proceeded on the consideration that the words patriotic and charitable" were to be read not conjunctively, but disjunctively, and consequently two distinct classes of objects were open to the trustees, from which they might make their selection. An elementary canon of the law of wills requires a testator to make his own will -not leave others to frame it for him. The bequest, therefore, failed for uncertainty. Charitable trusts are specially favoured by the Courts, which will sustain a bequest to charity even where only a general charitable intention, without the designation of any definite object, can be gathered from the will, or where the choice of the object to be benefited is left to the discretion of trustees. But this relaxation of the ordinary rule is strictly confined to charitable trusts as such: the Courts do not extend it so as to include within its ambit 'public' or, as here, "patriotic" bequests. The Lord Chancellor then considered, and rejected, the view that patriotic purposes should be ascribed to the fourth of the types of charitable trust enunciated by Lord Macnaghten in Pemsel's case.4 It will be recollected that in this case (the classical case on this branch of the law) Lord Macnaghten said that Charity' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads." Every purpose beneficial to the community is not necessarily charitable. For instance, a testator might leave money for the

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1 Actions in the English Courts are usually commenced by a writ: but persons interested under a deed, will, or other written instrument, may apply by originating summons to a judge of any Division of the High Court to decide a question that has arisen in regard to such of

instrument. And the matter is normally disposed in chambers. Where, however, the judge thinks fit, it may, as in this case, be adjourned into open Court.

* [1922] W.N. 313: reported under the name In re Tetley-National Provincial and Union Bank of England Ltd. v. Tetley.

3 Cp. the dictum of Lord Johnston in Bannerman's Trs. (1915, 1 S.L.T. at p. 145): "The law of Scotland does not admit of the delegation of the power of testing." * Commissioners for Special Purposes of Income Tax v. Pemsel, [1891] A.C. 531 at p. 583.

Patriotic purposes" is a wide and indefinite term, susceptible of many interpretations. And, accordingly, on this point also it was held that the bequest failed.

In Tetley two leading (Scottish) cases were referred to and followed-Blair v. Duncan 1 and Burns v. Houston. In the former a bequest to

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such charitable or public purposes as my trustee thinks proper" was held to be void for uncertainty. The same result was reached in the latter, where the gift was for "public, benevolent, or charitable purposes." Examination of all the recent Scottish cases on this topic discloses two things. First, the technical expression of charitable purpose is more and more rigidly insisted upon. Charitable institutions or deserving agencies"; 3 charitable or other deserving institutions" public, benevolent, or charitable purposes"; 5 "charitable or religious institutions and societies"; 6 "such educational, charitable, and religious purposes within the City of Aberdeen as he shall select"; -7 all these have been held to be bad. But, secondly, the word "charitable" itself has acquired, under the influence of decisions given in the English Courts, a much wider significance than it used to bear. A comparison of two cases, decided in 1888 and 1919 respectively, makes this clear. In the earlier (Baird's Trs. v. The Lord Advocate 8) a truster provided by trust deed a fund of half a million for the promotion of religion and the mitigation of the "spiritual destitution" which prevailed "among the poor and working population of Scotland." The greater part of the income derived from this bequest was devoted to building and endowing churches, and a question arose with the Inland Revenue authorities whether that income should be exempt from income tax on the ground that it was money applied to "charitable purposes within the meaning of the Income Tax Act, 1842. The Court held that the words of the Act must be given their ordinary, popular meaning, viz. purposes directed to the relief of poverty, and that they did not include purposes of general benevolence or public utility. And the Lord President (Inglis) said: 9 It appears to me that 'charity' and 'charitable have one sense, and one only, in ordinary familiar

1 [1902] A.C. 37.

2 [1918] A.C. 337.

3 Symmers' Trs., 1918, 1 S.L.T. 185.

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4 Campbell's Trs., 1921, 1 S.L.T. (H.L.) 50.

5 Turnbull's Trs. v. The Lord Advocate, 1918, 1 S.L.T.

(H.L.) 112.

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and popular use. Charity is relief of poverty, and a charitable act, or a charitable purpose, consists in relieving poverty, and whatever goes beyond that is not within the meaning of the word 'charity' as it occurs in this statute. The Court of Chancery, as we know, has extended the use of the word 'charity' to very different purposes to purposes of general benevolence and public utility-but I think it is quite impossible, where we are applying the proper rule of construction of a taxing Act, to give it any such meaning here."

The later case is Renouf's Trs. v. Haining,1 decided in 1919. Here the trustees were directed to "pay out of the income of my estate the salaries of two native missionaries chosen of them, for preaching the Gospel of Jesus Christ my Lord among the heathen." On a special case being brought, it was held by the Second Division (Lord Salvesen dissenting) that the bequest was valid. The judgment appears to have been based upon the case of Allan's Exr. v. Allan, where a bequest "for the benefit of foreign missions in India, China, Africa, and South America, or any other in the foreign field suitable," was held to be one for charitable purposes, and not void from uncertainty. The Scots Courts have indeed preferred to sustain these more recent bequests on the ground of dedication to a definite object. But in Baird's Trs. a specific sum was earmarked for the purpose indicated, and the locality was fixed in Scotland; in Haining the amount of the bequest was not even mentioned, nor in what part of the world the missionaries were to preach. And the expression " heathen was itself far from being unambiguous. On the other hand the Court, in 1888, had to determine whether the object for which the bequest had been made could be considered a charitable purpose pose" within the meaning of the Income Tax Act of 1842. In 1919 the question wasHas the testator here made a valid bequest? Comparing the two, one finds (1) that in 1919 the question did not take the same form as in 1888; (2) that at the later date the Court had regard rather to the alleged certainty of the object than to its charitable character. On balance, however, it is difficult to think that bequests similar to that in Haining or in Allan's Exr. would have been sustained had they come before the Scots Courts at an earlier period.

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The question, then, is-What is the explanation of this change of attitude? The answer, it is submitted, is to be found in Pemsel's case and in the practice of the Court of Chancery, upon which the judgment there was, in part, based. The circumstances in that case were these: Lands in England had been conveyed

by deed in 1813 to trustees upon trust after payment of costs and outgoings to apply twofourths of the rents and profits for the general purposes of maintaining, supporting, and advancing the missionary establishments among heathen nations of the Protestant Episcopal Church, commonly known as the Moravian Church; and to apply the remaining twofourths for purposes which the Crown admitted to be charitable. And the question was as in Baird's Trs. whether that portion of the rents devoted to the purposes of the Moravian Church should be subjected to income tax.

Income tax has been levied in this country continuously since 1842, and, with one interruption, it dates back to the end of the eighteenth century. Every Act has contained an exempting clause in favour of charity. For over forty years the Inland Revenue had acquiesced in the liberal interpretation accorded by the Courts to charitable trusts, and permitted gifts of this sort to enjoy the benefit of the exemption conferred by the Act of 1842. But, several years prior to this case, they began to maintain that the expression "charitable purposes." employed in the Act should be construed not in its technical, legal sense, as established by the decisions of the Courts, but in its ordinary, popular meaning. This was the contention put forward in Baird's case, and upheld by the Court of Session. That decision, however, was disapproved by the House of Lords in Pemsel's case, and they held that the terms of the gift constituted a charitable purpose, so as to come within the provisions of the Act of 1842, and that, consequently, the income therefrom was exempt from tax. Lord Macnaghten pointed out 1 that the law of England attached a technical meaning to the word "charity," and to the word "charitable," in such expressions as "charitable uses," "charitable trusts," or charitable purposes." And then proceeded to give the definition already cited, which shews how wide a meaning the English Courts attribute to the term. Historically it is not difficult to find the explanation of this. The statute 43 Eliz. cap. 4 was passed in order to enable the Courts to "redress the misemployment of lands, goods, and stocks of money heretofore given to charitable uses." Obviously it was not unnatural that a tribunal which had this end in view should be disposed to take a liberal view of what uses might be regarded as charitable. And that is precisely what occurred. The Court of Chancery did not confine itself to the examples given in the preamble to the statute of Elizabeth, but considered merely whether any particular case fell within the general intention of that Act.

A reference to "Jarman on Wills" 1 will provide the reader with instances. There he will find that the following (to select from among many) have been sustained as valid charitable gifts in England-gifts for the erection of waterworks for the use of the inhabitants of a town; for the establishment of a lifeboat; or of a botanical garden; or a museum; or keeping the chimes of a church in repair; building an organ gallery in a church; repairing and ornamenting a chancel; or repairing a memorial window; or a parish churchyard; or for ringing church bells in commemoration of the restoration of the monarchy; establishing and upholding an institution for the investigation and cure of diseases of quadrupeds and birds useful to man, and for maintaining a lecturer thereon; supporting societies having for their object the suppression and abolition of vivisection; or the encouragement of the practice of vegetarianism. To these I add a literary example, transcribed from the judgment of Lord Macnaghten in Pemsel: 2 "In one of his essays, Goldsmith tells the story of a French priest at Rheims, so miserly in his habits that he went by the name of 'The Griper.' Working incessantly in his vineyard, steadily refusing to relieve distress, he managed to save a large sum of money. Then the writer adds: 'This good man had long perceived the wants of the poor in the city, particularly in having no water but what they were obliged to buy at an advanced price; wherefore, that whole fortune which he had been amassing, he laid out in an aqueduct, by which he did the poor more useful and lasting service than if he had distributed his whole income in charity every day at his door." The story is charming, because it is so typically French; but it also shews very clearly the distinction between charity" in its popular sense of almsgiving and "charity as understood by the law of England.

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who decided the case of Baird's Trs. v. The Lord Advocate held that it was. And again (at p. 814), "if there be any particular favour which the law requires Courts to shew in construing charitable bequests, then I am of opinion that this particular bequest now in question falls within that class. I think that is the necessary conclusion from the judgment of Lord Watson in the case of Pemsel, where his Lordship, after narrating the considerable number of legislative provisions, goes on to say, "that Scotch trusts which are ejusdem generis with trusts falling within the statute of Elizabeth (in England) are charitable in this sense that they are all governed by the same rules which are applicable to charitable trusts in England." That a trust for the benefit of foreign missions falls within the description of pious and godly uses," which, Lord Watson says, is equivalent to charitable uses, seems to me beyond all reasonable doubt." On the other hand, Lord M'Laren said in the same case 1 that he "should not be of opinion that a bequest for purely religious purposes was entitled to the benefit of the benignant construction accorded to charitable trusts." It is submitted, however, that the later Scottish authorities, which followed Pemsel's case, and this very case of Allan in particular, scarcely bear out that view. In Turnbull's Trs. Viscount Haldane said: 2 "To the expression 'charitable' the Courts respectively of the two countries attach the meanings which were discussed in this House in Commissioners of Income Tax v. Pemsel, [1891] A.C. 531."

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If that be so (and such cases as Haining and Allan's Exr. appear to put it beyond doubt), it means that the Scottish Courts now read a much broader meaning into the word “ charity than they did when Baird's Trs. was decided. The dictum of Lord President Inglis in that case has already been cited. The judgment of Lord Shand, who took the same view, was even more explicit. He defined the term "charitable purposes as relating to funds dedicated to the relief of physical necessity or want to funds given as alms, or as a provision for the relief of persons from physical privations or suffering arising from poverty, and going no further." And he declined to sanction a broader interpretation. "If the term cannot be carried to the length of covering all public uses, then is it to be carried to the extent of including funds dedicated for the promotion of colleges, schools, and educational endowments, and also for the promotion of religion? For that, I think, there is no warrant." Put so, the meaning of "charity" in the law of Scotland is quite clear and definite. But it is very different from that adopted by the English Court of Chancery. And it is difficult to reconcile the later Scottish authorities with this definition, unless on the theory that English practice has, through the agency of the Supreme Court of Appeal, modified the Scots law on this point.

In conclusion, it may be worth while to summarise the special privileges which the law confers upon charitable trusts. Exemption from income tax under the Act of 1842 has been already dealt with. But, in addition to that, they are specially favoured by the law in three respects. First, a charitable trust is never void for uncertainty. Provided the charitable intention is clear, the Court will assist the trustees to carry it out. And it is no matter that the bequest is for charitable purposes without any limitation of area, or charitable purposes, the selection of which has been confided to trustees. Renouf's Trs. v. Haining1 is an example of the former; Çameron's Trs. v. Mackenzie, where there was a bequest of residue to "such charitable institutions, persons, or objects as the trustees might think desirable," illustrates the latter. Second, they are not subject to the rule against perpetuities, i.e., unlike other trusts, they may be permanent. Third, where owing to change of circumstances it has become impossible to carry out the testator's original intention, the Court will allow the funds to be applied to a purpose as nearly as possible akin to that contemplated in the will. This is called (borrowing English terminology) the doctrine of cy-près. For example, where a hospital, founded under an ancient charity for the maintenance of the poor and the sick, had been sold to a railway company, and it was found unnecessary and inexpedient to rebuild it, the Court sanctioned a scheme under which the money would be employed in giving out-door relief to the beneficiaries.3

able manner by reason of the small salaries paid to qualified assistants. In my own case, I may say that I am an exile from Scottish legal practice for the sole reason that I find that I can earn considerably more as an unqualified clerk in an English solicitor's office than I can as a qualified assistant in my own country.

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It is well known that the various Law Societies are the Trade Unions" of the Profession, but they nevertheless afford much less protection to the members of the Profession in comparison with those unions of lesser calling. Occasionally the country solicitor hears of the prosecution of a poacher in his own district, but seldom.

On a recent date certain public bodies have advertised for a school medical officer at certain salaries. The British Medical Association at once informed the bodies in question that any salary under £600 was inadequate, refused to allow the advertisements to be published, and requested the profession not to apply for the appointments. Yet the legal papers in England and the daily papers in both countries contain many advertisements for public and private bodies requiring experienced admitted solicitors to act as assistant solicitors at salaries round about £200 per annum-very seldom any more than £250-and the applicants are to be fully experienced in litigation, conveyancing, advocacy, etc.

The poor exploited solicitors who seek these appointments are generally with small means and no capital to purchase a practice, and yet the Law Societies, by allowing these advertisements, tacitly acquiesce in the payment of these inadequate salaries, and by doing so, moreover, cheapen the profession so that it becomes one to be avoided by younger men who are about to start their career.

When we consider that the dustmen in London receive their £5 a week and have no need to dress a part, it makes one feel that the Law Societies should emulate the example of the British Medical Society, which, I am given to understand, refuses to insert advertisements in which they consider inadequate salaries are offered to medical men. From the fact that the Law Societies have made no prior move in this matter, are we to assume the implied support which it seems is given by the Faculties to firms paying their assistant solicitors, acting as managers or at least skilled assistants, the present entirely inadequate and uncommensurate salaries? I hope not, and that in the very near future the Law Clerks, qualified and otherwise, will be in the happy position of knowing that the Societies, who would gladly take their subscriptions as members, will, in turn, exercise a protective

interest in their affairs and their remuneration. -I am, Sir, your obedient Servant,

31 Gloucester Road, Finsbury Park, N. 4.

FACULTY

E. R. M. TAYLOR.

OF ADVOCATES.-- Mr James Randall Philip, M.A. (Edinburgh), LL.B.

(Glasgow), and Mr Thomas Murray Taylor,

M.A., LL.B.(Aberdeen), were admitted to Faculty of Advocates on 14th March 1924.

Ar a meeting of the Scots Law Society of Edinburgh University, held in the Hall of the Associated Societies of Edinburgh University Mr J. N. Dandie, LL.B., president, in the chair -office-bearers for 1924-25 were appointed as follows: Presidents, Messrs Geo. J. Tait, S.S.C.; Thomas Young, solicitor; and J. L. Clyde; Hon. Secretary, Mr D. G. Fraser, 32 Charlotte Square; Hon. Treasurer, Mr A. Rankine; Hon. Assistant Secretary, Mr J. R. Philip, LL.B., advocate; Delegates to the Associated Societies, Messrs J. Mill, LL.B., and J. L. Clyde.

MESSRS MACFARLAN & THOMSON, solicitors and notaries public, 27 Church Street, Dumbarton, intimate that they have assumed as a partner Mr Alexander Gibson, solicitor, who has been associated with the firm for some years as procurator and managing clerk.

Mr Gibson received a thorough training in Dumbarton and Glasgow, and was a prize winner in both the Scots Law and Conveyancing Classes at Glasgow University.

The business will be continued under the existing firm name.

On 15th July 1922 he collapsed while at work, and was removed to hospital, where he died the same day. The post-mortem examination shewed that there had been a large hæmorrhage on the brain, otherwise all the arteries of the body were healthy. The house surgeon and doctor of the hospital who made the postmortem examination attributed death to the blow or to some other form of injury. At the arbitration the respondents called two professors

of Birmingham University who gave evidence

to the effect that the hæmorrhage could not have been caused by any external injury. The appellant averred that she had no suspicion that the respondents would contend that injury as the cause of death was impossible, and that, being taken by surprise, her legal advisers were unable to consult high medical authority until after the hearing, when they learned from two eminent brain specialists that no such impossibility existed. The County Court judge made an award in favour of the respondents. The appellant appealed to the Court of Appeal and filed an affidavit setting out the fact of surprise and exhibiting the specialists' reports. The Court of Appeal affirmed the award. Held that the appellant had adduced no ground for interfering with the award. Opinion per Lord Dunedin that, looking to the limited jurisdiction given to the Court of Appeal by the Act, it would not have been possible for the Court of Appeal to order a new trial in any circumstances on the ground

of surprise. - House of Lords (Earl of Birkenhead, Viscount Finlay, Lords Dunedin, Sumner, and Carson).-11th January 1924.

Brandon and Wife v. Osborne, Garrett & Co. Ltd. and Others.

DECISIONS IN THE ENGLISH COURTS.

Golden v. Swift of Coventry Ltd.

WORKMEN'S COMPENSATION APPEAL ON THE GROUND THAT AT THE ARBITRATION APPELLANT WAS TAKEN BY SURPRISE WORKMEN'S COMPENSATION ACT, 1906 (6 EDW. VII. CAP. 58), SCHEDULE II., PARA. 4. -The appellant was the widow of Richard Henry Golden, who sustained personal injury by accident on 9th March 1922 and died four months later. Golden, who was a machine tool-fitter, had received a violent blow on the cheek from a broken axle. He was removed on an ambulance and treated, but returned to his work the same day, and continued to work regularly until the day of his death. He was not in the same state of health after the accident and complained of his head.

OF DAMAGE
CONTRIBUTORY NEGLIGENCE
ASSISTANCE OF PERSON IN DANGER-PERSONAL

INJURY. The plaintiffs, who were husband and wife, were lawfully on the defendants' premises in the course of transacting business. At the time of their visit the premises were being repaired. Owing to the negligence of the workmen engaged in the repair work, the glass in a skylight in the roof was broken, and a piece of the broken glass hit the husband, who, however, received no outward physical injuries, though he suffered from shock. The wife was not struck or touched by the falling glass. There was no doubt that she might have been injured by it, as she was not in a position of safety. On seeing the occurrence, she attempted to pull her husband away from the place where the glass was falling. She had suffered for several years from leg trouble