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DECISIONS IN THE ENGLISH
pensation. Held that as the act was not done
by the workman for the purposes of and in COURTS.
connection with his employers' trade or business,
section 7 of the Act did not apply, The Christel Vinnen.
compensation due.-Court of Appeal
(Pollock M.R., and Warrington and Atkin AFFREIGHTMENT BILL OF LADING
L.JJ.).—23rd July 1924. EXCEPTIONS-UNSEAWORTHINESS.—A
of maize was shipped under a bill of lading which incorporated from a charter-party the following clause : The steamer shall not be liable for
LAW LIBRARY. loss or damage occasioned by . . . . any latent defects in hull, . by collision, stranding, or
BOOK NOTICES. other accidents arising in the navigation of the steamer, even when occasioned by the negli- Handbook of the Workmen's Compensation Acts, gence, default, or error of judgment of the 1906 – 1923. By Thomas J. Connolly,
· servants of the shipowners.” The cargo Solicitor. 1925. Edinburgh and London : was damaged by the inflow of sea-water due to Wm. Hodge & Co. Ltd. Price 258. net.
. a defective rivet, which was held to constitute unseaworthiness. The shipowners contended The Workmen's Compensation Act, 1923, so that the loss was wholly or at least partly due far from putting an end to the flood of litigation to the negligence of the master and crew in not on the subject, seems to have produced a fresh sounding the bilges, whereby they would have inundation. The topics of dispute may have discovered the leak and prevented the water changed slightly, but the subjects of controfrom reaching the cargo. Held that as the versy seem to be hardly less numerous than unseaworthiness was the dominant cause of the under the earlier Acts. A substantial volume loss, the shipowners were liable for the whole setting forth the law of the matter is sure, damage. Decision of Hill J. varied.-Court of therefore, to find readers. The author of the Appeal (Bankes, Scrutton, and Atkin L.JJ.).— present work, indeed, modestly disclaims an 15th July 1924.
attempt to treat the subject exhaustively; but we think that most readers will find the work
adequate to their purpose. It was perhaps a Pidduck and Others v. The King.
bold step to leave the beaten track by discarding
the method of a commentary on the statutes,
CIVIL PAY and to treat the subject in logical sequence. DURING WAR SERVICE-WHETHER WAR. BONUS The result, however, is a much more readable INCLUDED-POST-OFFICE SERVANTS.-Circulars book, and yet one which will be found not were issued by the Postmaster-General to the less valuable as a book of reference. In the effect that post-office servants who served in citation of authorities no attempt has been the war would receive, during service," their made to refer to every reported decision, but
or "full civil pay.” Additions rather to give a reasonably full selection of the having been made during the war, by way of
more important cases. war bonuses, to the pay of post-office servants, certain post-office servants who had served in the war claimed payment of the bonus for the The Law relating to Public Service Undertakings. period during which they were on service. By F. N. Keen, LL.B., Barrister-at-Law. Held that servants who had joined the forces 1925. London : P. S. King & Son Ltd. in reliance on the offer in the circulars were Price 15s. net. entitled to the bonuses as part of their civil pay.-K.B. Div. (Rowlatt J.).-18th July 1924. Based on a series of lectures delivered at the
London School of Economics, this volume,
published without preface or index, contains a Davies v. Gwauncaegurwen Colliery Co. Ltd. fairly clear summary of the legal position of
statutory public utility companies. Some of WORKMEN'S COMPENSATION-EMPLOYMENT- the more important public service underACCIDENT ARISING OUT OF—WORKMEN's com- takings are somewhat scantily treated ; but PENSATION ACT, 1923 (13 & 14 GEO. V. CAP. 42), the statutes regulating water - supply and SECTION 7.-A workman was in the habit of electricity undertakings are pretty fully sumeating his food in a disused part of the workings. marised. Whatever may be the treasures of He was instructed not to go there, and a fence legal learning hidden away in this volume, the was put up to shut off that part. He went there author has chosen not to provide the reader again and was killed. His widow claimed com- with a key, in the shape of an index.
presents any exceptional difficulty or interest, DOMICILE.
and it is not now intended to detail their
circumstances or otherwise discuss them, a The practising lawyer is frequently con- legal friend having lent the writer a print of a fronted with questions of domicile, especially in much more remarkable case, which cannot fail regard to succession. Whether these are pro- to interest every practitioner. portionately more numerous in Scotland than Those questions of domicile, when contested, in England the writer has no means of discover- naturally involve complete disclosure of all the ing; but from the known propensity of Scots- important events in a man's life, and fortunate men to leave the paternal roof and seek their may his memory be reckoned if, in a long life fortunes elsewhere, it may not unnaturally be passing the threescore years and ten, no serious inferred that such questions do preponderate in blot on the escutcheon appears. Happily, the Scotland. When quitting they do not generally case under consideration, as repeatedly borne bid their native place adieu for ever, their out by the evidence, is that of “ a typical Scot,” intention being rather to explore the unknown " a Scotchman to the backbone-every time.” and see what headway can be made and fortune One Colonial witness was amusingly particular, gained, and then return to end their days in the “Why,” he was asked, "didn't he say he was land of their nativity. The writer has at going to England ? ” No, he said he was present two cases of the sort on hand, one man going home. He was a Scotsman.' (Q.) How having gone to Africa to farm, and, after a year do you know he was Scotch ? (A.) Not exactly or two's experimenting, died without having a Scotchman, he was
a Fifer !" (Sic est. achieved any of his aims and without having Good old Kingdom : thy characteristics are farleft any
will. The other man went to London spread !) many years ago, where he steadfastly remained, Born in 1834 in Perthshire or Kinross-shire though he returned to Scotland almost every (the witnesses differ), Andrew Hutchison was summer on visits for five or six weeks to his the son of Scottish parents, his father being a friends, and kept in touch with Gaelic societies, farmer. After school he learned the drapery and otherwise shewed attachment to his native trade and held situations in Alloa and Manland. He died lately leaving a holograph will chester, and thereafter passed on to London. declared to be written and signed by himself, In 1861 he decided to proceed to South Africa ; perfectly valid in Scotland, but not effectual and as the question eventually turned upon according to English law. Both men left some whether at his death in 1914 he had retained his personal estate in Scotland, and testament- domicile of origin, or had lost it and acquired dative has been got in the former case, and a domicile of choice in Natal, it may tend to testament-testamentar will, it is expected, be clearness to present the important data in got in the latter. But neither of these cases favour of each in tabular form thus :
1884–1914. During this period he acted as of two-thirds of the Dollar property and business, advisory agent for his firm and lived at Royal and of the house and land of Harelaw -an old Hotel, Durban, and came to England almost and prized family possession - and the two every year for summer months, making short Scottish wills, and the yearly visits to his visits to his relatives in Scotland.
friends in Scotland. Those considerations taken 1902–1914. Enrolled in Voters Roll for singly might not have appeared conclusive, but Durban and also in Burgesses Roll for nearly in combination and without intimate knowledge same period.
of deceased's recently expressed intentions, He paid income tax in Durban but not in they led almost irresistibly to the conclusion Britain. He resisted claim here on the ground that the Scottish domicile had been retained; of non-residence.
but the Natal authorities could not acquiesce. 1914. Before leaving Durban for Manchester Under the will two executors were appointed, on his last voyage, he told a friend in Durban one in Scotland and the other in South Africa. that he had no intention of settling on his The Scottish executor did not take out letters Scottish property, and expressed intention of of administration in South Africa, but the South ending his days” in Natal.
African executor did, and on his death shortly His fortune, which amounted to upwards of afterwards a fresh executor dative was appointed. £158,000, was nearly all in the firm of Randles, Against this executor a summons at the instance Natal.
of the Master of the Supreme Court (Natal The Scottish estate in the confirmation was Provincial Division) was initiated in that Court £1634, 188. 3d., and there was the landed on 19th December 1916, claiming succession property of Harelaw, the assessed rent of which duty on all the moveable assets of deceased,
the vital averment in the pleading being that On Mr Hutchison's death his will became deceased had died domiciled in Natal. Deoperative, and the Scottish executor and fendant, of course, replied that the domicile was solicitors were of opinion and were advised by in Scotland. counsel that he had not lost his domicile of Considerable evidence was taken on comorigin, and gave up the usual inventory at mission (with counsel) in this country and in Edinburgh, embodying in it the funds in South Natal, the salient points in which have been Africa, which were personalty, and paid duty on tabulated above. In addition, it was shewn the whole. In support of their view (apart that deceased never married; and apart from from the two very potent elements of Scottish his stay at Ladysmith in his early years and the extraotion and birth) there were the ownership time he lived at Dollar with his father and
sister, he never had any fixed residence of his Committee of the Privy Council in London
When in Natal he lived in a hotel, and the Lords who sat being Viscount Haldane, when in Manchester he did the same, and even Lord Buckmaster, and Lord Shaw-and judgwhen he came to Scotland on a visit to his ment was delivered on 28th April 1921 by Lord friends he usually lived in the Castle Campbell Buckmaster. As respondents counsel was not Hotel at Dollar. The house on Harelaw, which called on, the judgment was presumably had been greatly improved at deceased's delivered extempore, immediately on the conexpense, was occupied by his brother, and diverse clusion of the argument on behalf of the appelexplanations of the purchase of the place were lant; and if I may respectfully say, I have rarely stated. A sister averred that "he wanted to read a judgment more lucidly or felicitously put on his father's gravestone in the church- expressed. That the pleasure may be shared yard ' Hutchison of Harelaw.' Another Scots by others who have not seen the judgment, I witness stated that the acquisition was purely quote a few sentences. After paying a deserved one of sentiment; and in answer to the question tribute to the South African Courts on their “Did he indicate to you an intention of living correct apprehension of the principles regulating at Harelaw himself ?” witness replied : “ No. domicile, Lord Buckmaster said : “ A domicile I once mentioned the matter to him, but he said of origin is not easily shaken off. Absence from he could never settle down there.”. A Natalian home, roving and wandering, however long witness corroborated this. On being asked if pursued, are not in themselves sufficient to he remembered the name of the place, the effect a change. There must be a fixed and witness, repeating a touching reminiscence, settled purpose to abandon the domicile of replied : No, he said he had bought some old origin and to settle in the country of choice in trees on the property that he used to play under order that the change may be effected.” when a boy, and he had a longing for it, and he He then briefly traced Mr Hutchison's career, bought it, and said it was simply an old man's remarking that “ his father's death appears to sentiment. He told me he would never live have snapped the ties that bound him to there."
“and from 1888 until the time The Natal Court presided over by the of his death, apart from his affection for his Hon. Sir John C. Dove Wilson (a highly brother and sisters and their families, which was honoured name in our own Sheriff Courts) laid strong and sincere, the chief interest of his life great emphasis on this expressed determination, lay in Durban.” Adverting to the purchase of and also on his long residence in Natal (his Harelaw, which was a strong factor in the annual visits to England being for the further- Scottish domicile, his Lordship said: “The
" ance of his Natal connection) and his resistance reason for this was one of strong family sentiof the British claim for income tax on the ment. It was the place where his father had ground of non-residence in Britain. That originally lived, which had been in the possession learned judge reviewed the law in a closely of his ancestors for generations. . He reasoned judgment, and reiterated the well was anxious that on his father's grave there known principles applicable to domicile. A should be inscribed the statement that he was few sentences may be culled. In addition to of Harelaw, and this pious wish he gratified. the fact of residence in Natal the judge said : He never had any intention of living in Harelaw
It is also necessary to prove that he made up himself, and when the property became vacant his mind to make that residence permanent. he put his brother into possession.
The fact that projects, such as the At Durban the worthy man is thus visualised : setting-up of a separate establishment for “ He always lived at the Royal Hotel, and he himself on retiring from business when his seems to have spent his time in going down to visits to England should have ceased, were his place of business, where he was in constant frustrated by his death on that last visit, does attendance, sitting smoking his pipe and talking not affect the fact that he had made his election to the people who came in and out. before it; and having made his election there a man kindly and reticent, not given to the use was the animus as well as the factum, which are of trifling language, but of a shrewd judgment.' the essentials of a choice of a new domicile.” Concurring in the African Court's construction The other judges concurred, the Natalian of the facts, his Lordship rather touchingly domicile being held established and that continues : Greatly attached as he was to succession duty was due.
his relatives, proud of his Scotch birth and of The case was then brought by appeal before his Scottish ancestry, his real life's work had the Appellate Division of the Supreme Court of been done in Natal. There was the firm in South Africa with the same result.
association with which he had so long worked ; But there was yet another tribunal before there were the friends he knew and the business finality was reached. The case was accordingly in which he was interested.” How like this in brought before the Lords of the Judicial expression, though not in substance, to the
well-known Byronic lines (though anything another week added to the Christmas recess else than pure accident cannot be supposed):
in its place.
A first step towards the reforms recently There were his young barbarians all at play :
referred to in these columns has been take There was their Dacian mother.
by the Government, which has appointed a His Lordship proceeds : " But for his annual committee to enquire into the desirability of a
“ visits to Manchester the selection of Natal as Court of Criminal Appeal for Scotland. The his domicile of choice would be plain beyond almost inevitable result, sooner or later, will be argument, and those visits are explained partly the establishment of such a Court. Legislation by his desire for change, partly no doubt to see may be expected on the lines of the Bill privately his relatives, and partly by his interest in the introduced last session, leaving out, it may be buying branch of the business with which he hoped, the more obvious blunders of that was associated.'
Mr Hutchison's appearance suggested measure. Apropos of reform, a in the Voters and Burgess Rolls in Natal, his speaker in Edinburgh recently urged with great payment of income tax there, and his successful cogency the need for a Commercial Court in resistance of the British tax-gatherer, were Scotland similar to that established in England further recognised as important corroboration in 1895, which has proved of great value to of the Natalian domicile. His Lordship's commercial men. He said that the present observations this head-the denial of expense and delay in litigation was unduly liability for home income tax-are delightful. fostering arbitration, and thus depriving the “This fact,” he says, “is important in con-judges of commercial experience and the public nection with the man's character. He was a and the legal profession of authoritative preman upright and trusted in all his business cedents. This was already affecting the growth dealings. He had felt acutely the shadow of and development of mercantile law in Scotland. the trouble which had caused his father to In this connection it is interesting to note that leave his home; all the evidence about his life the protests made by leading practitioners and shews him to have been a trustworthy and business men in England against the congestion honourable man, and their Lordships are of cases in the Admiralty Court, leading to delay, satisfied that it was not a mere evasion of an arbitration, and all manner of undesirable things, obligation to pay tax over here, nor an adroit has been promptly followed by the announceconfusion of the real facts, that enabled him to ment of tħe Government's intention to ask for resist the claims for payment, but the fact that the necessary powers to appoint an additional he satisfied the authorities that he was not judge of the Probate, Divorce, and Admiralty ordinarily resident in this country, and that Division. his presence here was that merely of a visitor." More than one member of the Faculty found
The appeal was therefore dismissed with an opportunity for his maiden speech in the costs.
circumstance that the House of Commons began And now for the wonderful denouement. its session's work by considering the second When the Natalian Revenue authorities were reading of the Church of Scotland (Property and satisfied, and the appropriate duties and all Endowment) Bill. Though darkly suspected expenses were met, and reimbursement of the by some members of the House of Commons of duties paid in this country was obtained, Mr taking the land of Scotland in some way unHutchison's estate was roughly some £10,000 specified from its rightful owners (the people) to the good-a gratifying testimony to the and handing it over to the dead hand of the moderate demands of the Colony, as compared Church, the Bill, which has been sponsored not with those of the Homeland. Executors and only by this but by the late Government, should their doers, therefore, when faced with ticklish have no difficulty in surviving Scottish grand questions of domicile, should not hesitate to committee and becoming the law of the land. admit Colonial claims if these have the sanction Whether a new church crisis will be provoked, of probability.
D. M. G. and a new.“ church case find its way into the
Courts in consequence, remains to be seen.
Meantime, the Bill, besides passing its second NOTES FROM PARLIAMENT HOUSE.
reading, has been "praised with faint damns"
by the learned societies of Scotland. February week has come and gone, and, as
Scottish legal and semi-legal interests seem always, leaves behind it a wonder that such an to be destined for a good share of the new institution should exist at all. When Court of Parliament's attention. In the first few days Session reform comes, and with it the readjust- of the session, besides the debate on the Church ment of our times of sitting and of vacation, it Bill, attention was directed to the institution may be hoped that the February week will be of a Court of Criminal Appeal in Scotland, to abolished, and, if it be thought desirable, the proposals of the Government in regard to the