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EXCEPTIONS-UNSEAWORTHINESS.-A cargo 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 loss or damage occasioned by . . . any latent defects in hull, . by collision, stranding, or other accidents arising in the navigation of the steamer, even when occasioned by the negligence, default, or error of judgment of the servants of the shipowners.' The cargo was damaged by the inflow of sea-water due to a defective rivet, which was held to constitute unseaworthiness. The shipowners contended that the loss was wholly or at least partly due to the negligence of the master and crew in not sounding the bilges, whereby they would have discovered the leak and prevented the water from reaching the cargo. Held that as the unseaworthiness was the dominant cause of the loss, the shipowners were liable for the whole damage. Decision of Hill J. varied.-Court of Appeal (Bankes, Scrutton, and Atkin L.JJ.). 15th July 1924.

Pidduck and Others v. The King.



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CIVIL PAY DURING WAR SERVICE—WHETHER WAR BONUS INCLUDED-POST-OFFICE SERVANTS.-Circulars were issued by the Postmaster-General to the effect that post-office servants who served in the war would receive, during service," their civil pay "full civil pay. or Additions having been made during the war, by way of 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 period during which they were on service. Held that servants who had joined the forces in reliance on the offer in the circulars were entitled to the bonuses as part of their civil pay.-K.B. Div. (Rowlatt J.).-18th July 1924.

Davies v. Gwauncaegurwen Colliery Co. Ltd.

WORKMEN'S COMPENSATION-EMPLOYMENT— ACCIDENT ARISING OUT OF WORKMEN'S COMPENSATION ACT, 1923 (13 & 14 GEO. V. CAP. 42), SECTION 7.-A workman was in the habit of eating his food in a disused part of the workings. He was instructed not to go there, and a fence was put up to shut off that part. He went there again and was killed. His widow claimed com

pensation. Held that as the act was not done by the workman for the purposes of and in connection with his employers' trade or business, section 7 of the Act did not apply, and no compensation was due.-Court of Appeal (Pollock M.R., and Warrington and Atkin L.JJ.). 23rd July 1924.



Handbook of the Workmen's Compensation Acts, 1906-1923. By Thomas J. Connolly, Solicitor. 1925. Edinburgh and London: Wm. Hodge & Co. Ltd. Price 25s. net.

The Workmen's Compensation Act, 1923, so far from putting an end to the flood of litigation on the subject, seems to have produced a fresh inundation. The topics of dispute may have changed slightly, but the subjects of controversy seem to be hardly less numerous than under the earlier Acts. A substantial volume setting forth the law of the matter is sure, therefore, to find readers. The author of the present work, indeed, modestly disclaims an attempt to treat the subject exhaustively; but we think that most readers will find the work adequate to their purpose. It was perhaps a bold step to leave the beaten track by discarding the method of a commentary on the statutes, and to treat the subject in logical sequence. The result, however, is a much more readable less valuable as a book of reference. In the book, and yet one which will be found not citation of authorities no attempt has been made to refer to every reported decision, but rather to give a reasonably full selection of the more important cases.

The Law relating to Public Service Undertakings. By F. N. Keen, LL.B., Barrister-at-Law. 1925. London: P. S. King & Son Ltd. Price 15s. net.

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Based on a series of lectures delivered at the London School of Economics, this volume, published without preface or index, contains a fairly clear summary of the legal position of statutory public utility companies. Some of the more important public service undertakings are somewhat scantily treated; but the statutes regulating water supply and electricity undertakings are pretty fully summarised. Whatever may be the treasures of legal learning hidden away in this volume, the author has chosen not to provide the reader with a key, in the shape of an index.

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presents any exceptional difficulty or interest, and it is not now intended to detail their circumstances or otherwise discuss them, a legal friend having lent the writer a print of a much more remarkable case, which cannot fail to interest every practitioner.

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The practising lawyer is frequently confronted with questions of domicile, especially in regard to succession. Whether these are proportionately 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, though he returned to Scotland almost every summer on visits for five or six weeks to his friends, and kept in touch with Gaelic societies, and otherwise shewed attachment to his native land. He died lately leaving a holograph will declared to be written and signed by himself, perfectly valid in Scotland, but not effectual according to English law. Both men left some personal estate in Scotland, and testamentdative has been got in the former case, and testament-testamentar will, it is expected, be got in the latter. But neither of these cases

For Scottish or British Domicile. 1834. Born in Scotland of Scottish parents.

1876. Returned to Scotland and lived for a time with his father.

Born in 1834 in Perthshire or Kinross-shire (the witnesses differ), Andrew Hutchison was the son of Scottish parents, his father being a farmer. After school he learned the drapery trade and held situations in Alloa and Manchester, and thereafter passed on to London. In 1861 he decided to proceed to South Africa; and as the question eventually turned upon whether at his death in 1914 he had retained his domicile of origin, or had lost it and acquired a domicile of choice in Natal, it may tend to clearness to present the important data in favour of each in tabular form thus :

For South African Domicile.

1861. Went to Natal, trading first in interior. Thereafter he settled in general store business at Ladysmith, where he resided.

1875. Before this he had bought certain farms near Ladysmith.

Decided to give up business and retire. Visited brother in New Zealand and also visited Australia.

1876. Became friendly with Mr Hudson of Randles Brother & Hudson, a firm with whom he had previous business relations.

1878. Becomes sleeping partner in woollen business in Glasgow.

1881. Buys property in Dollar, where he and his father and sister lived for some years.

1882. Visits Durban to adjust business difficulty with Mr Hudson's partner. 1887. Retires from Glasgow business.


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1884-1914. During this period he acted as advisory agent for his firm and lived at Royal Hotel, Durban, and came to England almost every year for summer months, making short visits to his relatives in Scotland.

1902-1914. Enrolled in Voters Roll for Durban and also in Burgesses Roll for nearly same period.

He paid income tax in Durban but not in Britain. He resisted claim here on the ground of non-residence.

1914. Before leaving Durban for Manchester on his last voyage, he told a friend in Durban that he had no intention of settling on his Scottish property, and expressed intention of "ending his days" in Natal.

His fortune, which amounted to upwards of £158,000, was nearly all in the firm of Randles, Natal.

The Scottish estate in the confirmation was £1634, 18s. 3d., and there was the landed property of Harelaw, the assessed rent of which was £50.

On Mr Hutchison's death his will became operative, and the Scottish executor and solicitors were of opinion and were advised by counsel that he had not lost his domicile of origin, and gave up the usual inventory at Edinburgh, embodying in it the funds in South Africa, which were personalty, and paid duty on the whole. In support of their view (apart from the two very potent elements of Scottish extraction and birth) there were the ownership

of two-thirds of the Dollar property and business, and of the house and land of Harelaw—an old and prized family possession-and the two Scottish wills, and the yearly visits to his friends in Scotland. Those considerations taken singly might not have appeared conclusive, but in combination and without intimate knowledge of deceased's recently expressed intentions, they led almost irresistibly to the conclusion that the Scottish domicile had been retained; but the Natal authorities could not acquiesce.

Under the will two executors were appointed, one in Scotland and the other in South Africa. The Scottish executor did not take out letters of administration in South Africa, but the South African executor did, and on his death shortly afterwards a fresh executor dative was appointed. Against this executor a summons at the instance of the Master of the Supreme Court (Natal Provincial Division) was initiated in that Court on 19th December 1916, claiming succession duty on all the moveable assets of deceased, the vital averment in the pleading being that deceased had died domiciled in Natal. Defendant, of course, replied that the domicile was in Scotland.

Considerable evidence was taken on commission (with counsel) in this country and in Natal, the salient points in which have been tabulated above. In addition, it was shewn that deceased never married; and apart from his stay at Ladysmith in his early years and the time he lived at Dollar with his father and

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sister, he never had any fixed residence of his When in Natal he lived in a hotel, and when in Manchester he did the same, and even when he came to Scotland on a visit to his friends he usually lived in the Castle Campbell Hotel at Dollar. The house on Harelaw, which had been greatly improved at deceased's expense, was occupied by his brother, and diverse explanations of the purchase of the place were stated. A sister averred that "he wanted to put on his father's gravestone in the churchyard Hutchison of Harelaw.' Another Scots witness stated that the acquisition was purely one of sentiment; and in answer to the question "Did he indicate to you an intention of living at Harelaw himself? witness replied: No. I once mentioned the matter to him, but he said he could never settle down there." A Natalian witness corroborated this. On being asked if he remembered the name of the place, the witness, repeating a touching reminiscence, replied: "No, he said he had bought some old trees on the property that he used to play under when a boy, and he had a longing for it, and he bought it, and said it was simply an old man's sentiment. He told me he would never live there."

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The Natal Court presided over by the Hon. Sir John C. Dove Wilson (a highly honoured name in our own Sheriff Courts) laid great emphasis on this expressed determination, and also on his long residence in Natal (his annual visits to England being for the furtherance of his Natal connection) and his resistance of the British claim for income tax on the ground of non-residence in Britain. That learned judge reviewed the law in a closely reasoned judgment, and reiterated the wellknown principles applicable to domicile. A few sentences may be culled. In addition to the fact of residence in Natal the judge said: 'It is also necessary to prove that he made up his mind to make that residence permanent. The fact that projects, such as the setting-up of a separate establishment for himself on retiring from business when his visits to England should have ceased, were frustrated by his death on that last visit, does not affect the fact that he had made his election before it; and having made his election there was the animus as well as the factum, which are the essentials of a choice of a new domicile." The other judges concurred, the Natalian domicile being held established and that succession duty was due.

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The case was then brought by appeal before the Appellate Division of the Supreme Court of South Africa with the same result. But there was yet another tribunal before finality was reached. The case was accordingly brought before the Lords of the Judicial

Committee of the Privy Council in Londonthe Lords who sat being Viscount Haldane, Lord Buckmaster, and Lord Shaw—and judgment was delivered on 28th April 1921 by Lord Buckmaster. As respondents' counsel was not called on, the judgment was presumably delivered extempore, immediately on the conclusion of the argument on behalf of the appellant; and if I may respectfully say, I have rarely read a judgment more lucidly or felicitously expressed. That the pleasure may be shared by others who have not seen the judgment, I quote a few sentences. After paying a deserved tribute to the South African Courts on their correct apprehension of the principles regulating domicile, Lord Buckmaster said: "A domicile of origin is not easily shaken off. Absence from home, roving and wandering, however long pursued, are not in themselves sufficient to effect a change. There must be a fixed and settled purpose to abandon the domicile of origin and to settle in the country of choice in order that the change may be effected."

He then briefly traced Mr Hutchison's career, remarking that "his father's death appears to have snapped the ties that bound him to Scotland "and from 1888 until the time of his death, apart from his affection for his brother and sisters and their families, which was strong and sincere, the chief interest of his life lay in Durban." Adverting to the purchase of Harelaw, which was a strong factor in the Scottish domicile, his Lordship said: "The reason for this was one of strong family sentiment. It was the place where his father had originally lived, which had been in the possession of his ancestors for generations. was anxious that on his father's grave there should be inscribed the statement that he was of Harelaw, and this pious wish he gratified. He never had any intention of living in Harelaw himself, and when the property became vacant he put his brother into possession."


At Durban the worthy man is thus visualised : "He always lived at the Royal Hotel, and he seems to have spent his time in going down to his place of business, where he was in constant attendance, sitting smoking his pipe and talking to the people who came in and out. He was a man kindly and reticent, not given to the use of trifling language, but of a shrewd judgment." Concurring in the African Court's construction of the facts, his Lordship rather touchingly continues: Greatly attached as he was to his relatives, proud of his Scotch birth and of his Scottish ancestry, his real life's work had been done in Natal. There was the firm in association with which he had so long worked; there were the friends he knew and the business in which he was interested." How like this in expression, though not in substance, to the

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well-known Byronic lines (though anything another week added to the Christmas recess else than pure accident cannot be supposed): in its place.

There were his young barbarians all at play :
There was their Dacian mother.

A first step towards the reforms recently referred to in these columns has been taken by the Government, which has appointed a committee to enquire into the desirability of a Court of Criminal Appeal for Scotland. The almost inevitable result, sooner or later, will be the establishment of such a Court. Legislation may be expected on the lines of the Bill privately introduced last session, leaving out, it may be hoped, the more obvious blunders of that suggested measure. Apropos of reform, a speaker in Edinburgh recently urged with great cogency the need for a Commercial Court in Scotland similar to that established in England commercial men. He said that the present expense and delay in litigation was unduly fostering arbitration, and thus depriving the judges of commercial experience and the public and the legal profession of authoritative precedents. This was already affecting the growth and development of mercantile law in Scotland. In this connection it is interesting to note that the protests made by leading practitioners and business men in England against the congestion of cases in the Admiralty Court, leading to delay, arbitration, and all manner of undesirable things, has been promptly followed by the announcement of the Government's intention to ask for the necessary powers to appoint an additional judge of the Probate, Divorce, and Admiralty Division.

His Lordship proceeds: "But for his annual visits to Manchester the selection of Natal as his domicile of choice would be plain beyond argument, and those visits are explained partly by his desire for change, partly no doubt to see his relatives, and partly by his interest in the buying branch of the business with which he was associated." Mr Hutchison's appearance in the Voters and Burgess Rolls in Natal, his payment of income tax there, and his successful resistance of the British tax-gatherer, were further recognised as important corroboration in 1895, which has proved of great value to of the Natalian domicile. His Lordship's observations on this head-the denial of liability for home income tax-are delightful. "This fact," he says, "is important in connection with the man's character. He was a man upright and trusted in all his business dealings. He had felt acutely the shadow of the trouble which had caused his father to leave his home; all the evidence about his life shews him to have been a trustworthy and honourable man, and their Lordships are satisfied that it was not a mere evasion of an obligation to pay tax over here, nor an adroit confusion of the real facts, that enabled him to resist the claims for payment, but the fact that he satisfied the authorities that he was not ordinarily resident in this country, and that his presence here was that merely of a visitor." The appeal was therefore dismissed with


And now for the wonderful denouement. When the Natalian Revenue authorities were satisfied, and the appropriate duties and all expenses were met, and reimbursement of the duties paid in this country was obtained, Mr Hutchison's estate was roughly some £10,000 to the good-a gratifying testimony to the moderate demands of the Colony, as compared with those of the Homeland. Executors and their doers, therefore, when faced with ticklish questions of domicile, should not hesitate to admit Colonial claims if these have the sanction of probability. D. M. G.

NOTES FROM PARLIAMENT HOUSE. February week has come and gone, and, as always, leaves behind it a wonder that such an institution should exist at all. When Court of Session reform comes, and with it the readjustment of our times of sitting and of vacation, it may be hoped that the February week will be abolished, and, if it be thought desirable,

More than one member of the Faculty found an opportunity for his maiden speech in the circumstance that the House of Commons began its session's work by considering the second reading of the Church of Scotland (Property and Endowment) Bill. Though darkly suspected by some members of the House of Commons of taking the land of Scotland in some way unspecified from its rightful owners (the people) and handing it over to the dead hand of the Church, the Bill, which has been sponsored not only by this but by the late Government, should have no difficulty in surviving Scottish grand committee and becoming the law of the land. Whether a new church crisis will be provoked, and a new." church case " find its way into the Courts in consequence, remains to be seen. Meantime, the Bill, besides passing its second reading, has been "praised with faint damns" by the learned societies of Scotland.

Scottish legal and semi-legal interests seem to be destined for a good share of the new Parliament's attention. In the first few days of the session, besides the debate on the Church Bill, attention was directed to the institution of a Court of Criminal Appeal in Scotland, to the proposals of the Government in regard to the

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