COURT OF APPEAL. ROWLATT, J. WILSON V. SIMPSON (H.M. INSPECTOR OF JUNE 15. TAXES). Revenue-Income Tax-Life Insurance Policy on Joint Lives of Claimant and Another-Half of Premium to be Payable by Each-Whether Assured Entitled to Deduction or Allowance-Income Tax Act, 1918 (8 and 9 Geo. 5, c. 40), sec. 32, sub-sec. 1 (a), Sched. E. CASE stated by the Commissioners for the General Purposes of the Income Tax Acts. The appellant had been assessed to income tax for the years 1923-4 under Sched. E. of the Income Tax Act, 1918, in the sum of 1,250l., in respect of his remuneration as a director of Wm. Muirhead, Macdonald, Wilson & Co., Ltd. Of this company he and Mr. William Muirhead were joint life directors. By a policy of insurance dated September 20, 1918, for 10,000l. issued by the Scottish Temperance Insurance Co., Ltd., the lives of the appellant and Mr. Muirhead were insured for 10,000l. The annual premium payable under the policy was 6021. 1s. 8d. In the event of either of the two directors dying the sum secured by the policy was payable to a trustee for them according to the terms of a deed of declaration of trust, dated September 25, 1918. That declaration of trust provided that the trustee should collect and receive the moneys to arise from or under the policy and apply them as therein directed. The two directors covenanted to pay onehalf of the premiums each and the trustee was to pay the premium to the insurance office. A further policy of insurance issued by the same insurance office on May 16, 1919, on the same lives, and for the same sum and premium, was identical in terms with the former policy, except in regard to its number and date. In the case of the latter policy the money was payable to the said trustee under a further declaration of trust dated May 1, 1919. The annual demand for the premiums was made by the insurance company on the two directors and the trustee. The trustee collected the amount of the premiums in equal proportion from the two directors, and himself paid the premium to the insurance office on their behalf and received the receipt therefor. The appellant appealed to the Commissioners against the assessment on the ground that he had made an insurance on his life and that he was entitled to a deduction or allowance under sec. 32, sub-sec. 1 (a), of the Act in respect of the half share of the annual premiums which had been paid by him under the two policies. The Commissioners were of opinion that no allowance was due to the appellant under sec. 32, and they dismissed the appeal. 66 The Income Tax Act, 1918, provides: Sec. 32 (1) Any person (a) who has made an insurance on his life or on the life of his wife, or who has contracted for any deferred annuity on his own life or the life of his wife, with any insurance company legally established in the United Kingdom. shall be entitled to a deduction of the amount of the annual premium paid by him for any such insurance or contract, or of the annual sum paid by him or deducted from his salary or stipend, from any profits or gains in respect of which he was liable to be charged under Sched. D. or E." Blanco White for the appellant; The Solictor General (Sir T. Inskip, K.C.), and R. P. Hills for the Crown. HIS LORDSHIP held that the appeal must be dismissed. Under the provisions of sec. 32, sub-sec. 1 (a), of the Income Tax Act, 1918, any person who had made an insurance on his own life was entitled to a deduction of the annual premium paid by him, but here the appellant was not a person who had made such an insurance. The insurance had been made jointly by the appellant and another person, and was on their joint lives. The money, being payable on the cesser of the joint lives, might fall due on the dropping of the life of the other individual just as much as on the dropping of the life of the appellant. Further, the appellant had paid not the premium on an insurance on his own life, but an agreed contribution towards the joint payment for the joint insurance of the joint lives. This case was to be distinguished from a case when each of two persons insured his own life against the life of the other, inasmuch as in the latter case, if one of the assured failed to pay his premiums, only one of the insurances would drop; while in the present case the whole insurance on the joint lives would lapse if the full amount of the joint premium were not paid. Appeal dismissed. Solicitors: W. H. Bellamy; The Solicitor of Inland Revenue. (Reported by T. R. Fitzwalter Butler, Esq., Barrister-at-Law.) Gaming-Betting on Horse Race-Winner-Dispute between Parties as to Amount Due-Agreement to refer Dispute to Tattersall's Committee-Promise by Loser "to Abide by their Decision "-Consideration for New Contract. APPEAL from a judgment of Horridge, J. The plaintiff, Charles Frederick Hyde, claimed from the defendant, R. B. Tyler, a commission agent, the sum of 1,000l. as the result of a bet of 10l. upon a horse called Charley's Mount, which won the race for the Cesarewitch Stakes on October 15, 1924. The plaintiff backed this horse with the defendant for 101. The starting price being 100 to 1, but in some cases, by arrangement, the odds were limited to 33 to 1. After the horse was declared the winner a dispute arose between the parties, the plaintiff contending that he was entitled to 1,000l. on starting price, the defendant alleging that by arrangement between him and the plaintiff the odds were limited to 33 to 1, and therefore that the plaintiff was only entitled to 3307., which was paid. They then agreed to refer the dispute to Tattersall's Committee, such reference entailing the payment of a guinea to, and the attendance of the parties before, the Committee: the defendant agreeing to abide by their decision. The plaintiff accordingly paid the guinea and the parties attended before the Committee, who decided that the amount due to the plaintiff was 1,000l., to be paid within seven days. The defendant did not comply with this decision, with the result that he was "warned off " the course by Tattersall's, and the plaintiff brought this action. By his statement of claim the plaintiff alleged (inter alia) that, in consideration of the plaintiff taking steps to submit and submitting the dispute to the Committee, and for the said purpose paying the said fee of a guinea, the defendant agreed to pay to the plaintiff such sum as the Committee should find to be payable by the defendant to the plaintiff, or, alternatively, that he would abide by their decision. HORRIDGE, J., who tried the action, distinguishing the present case from Whiteman v. Newey [1913] (134 L.T. 205), and applying Hyams v. Coombes [1912] (28 T.L.R. 413), held that, as the parties only referred to Tattersall's Committee the question whether the bet was at 100 to 1 or at 33 to 1, and, as there was no further agreement by the defendant to pay such sum as the Committee might find to be due, the action failed. The plaintiff appealed. J. D. Cassels, K.C., and J. B. Melville for the appellant ; Thorn Drury, K.C., and E. H. Cannot for the respondent. THE COURT, without calling upon counsel for the respondent, dismissed the appeal. It was plain that the only dispute which the Committee had to decide was whether the bet was made at starting price or whether the odds were limited. It was impossible to say that the willingness of the parties to go before the Committee was a fresh agreement on a new consideration so as to take the matter out of the Gaming Acts. Appeal dismissed. Solicitors: Hobson, MacMahon & Cobbett for the appellant ; Percy Bono & Griffith for the respondent. (Reported by W. Grist Hawtin, Esq., Barrister-at-Law.) SOUTHERN RAILWAY V. THE MAYOR AND CORPORATION OF GOSPORT. BANKES, L.J. The plaintiffs, the Southern Railway Co., the owners of a bridge which carried a public road over their railway near Gosport in Hampshire, sued two defendants, the Gosport Corporation and the owners of a steam-roller, to recover 3211. 4s. 10d., which they had had to pay for the cost of partially reconstructing the bridge, which had been damaged owing, as they alleged, to the joint negligence of the defendants. In the alternative, the plaintiffs alleged that the defendants were jointly and severally liable for the damage under sec. 7 of the Highways and Locomotives Act, 1861, which provides:— "Where any turnpike or other roads, upon which locomotives are or hereafter may be used, pass ... over or across .. any railway, by means of any bridge ... and such bridge . . shall be damaged by reason of any locomotive passing over the same or coming into contact therewith. every such damage shall be forthwith repaired . . . at the expense of the owner or owners or the person or persons having the charge of such locomotive at the time of the ... ... happening of such damage; and all such owner and owners, person and persons, having the charge of such locomotive as aforesaid, shall also be liable, both jointly and severally, to reimburse and make good, as well to the proprietors and other persons having charge of any such . . . railway ... as to all persons . who but for any such obstruction, interruption or delay would have used the same, all losses and expenses which they .. may sustain or incur by reason of any such obstruction, interruption or delay." In May, 1924, the road crossing the bridge in question was in need of repair. The obligation to carry out the repairs rested, by agreement between the defendant corporation and the plaintiff railway company, on the defendant corporation. To carry out the repairs the defendant corporation hired a steam-roller owned by the second defendants, along with their driver, who thus become, for the time being, the servant of the defendant corporation. While the work of repairing the road was in progress the damage complained of by the plaintiffs was done. Each of the defendants denied negligence, and denied also that they were liable under sec. 7 of the Highways and Locomotives Act, 1861. Greer, J., held, on the evidence, that the defendant corporation were negligent in their use of the steam-roller on the bridge, and that that negligence caused the damage to the bridge, but that the plaintiffs would have had to spend a considerable sum on the bridge in about six months' time owing to its being very much weakened by the passing over it of heavy vehicular traffic. He further held that sec. 7 of the Highways and Locomotives Act, 1861, imposed a liability on the persons in charge of the steam-roller at the time the damage was done-in this case the defendant corporation-to repair the damage, and that the other defendants, the owners of the steam-roller, were under no liability under the section. But he awarded only 101. damages in favour of the plaintiffs on the ground of the age and condition of the bridge, which would in any event have necessitated their expending a considerable sum on the bridge in a few months' time. The plaintiffs appealed, and the defendant corporation cross-appealed. F. P. M. Schiller, K.C., and The Hon. S. O. Henn Collins for the plaintiffs; Rayner Goddard, K.C., and J. G. Trapnell for the defendant corporation. THE COURT (Bankes, Atkin and Sargant, L.JJ.) held that Greer, J., was right in holding that the defendant corporation were liable for the damage to the bridge and that the other defendants, the owners of the steam-roller, were under no liability. They further held that the plaintiffs were entitled to recover from the defendant corporation the full amount, viz., 3211. odd expended by them in repairing the bridge, and that there was nothing to justify Greer, J., in reducing the damages below the actual cost of the repairs. The judgment for the plaintiffs must, therefore, be varied by substituting the sum of 3211. odd for 101., and entered accordingly. Judgment varied. Solicitors W. Bishop for plaintiffs; Kenneth Brown, Baker, & Baker, for Edgar J. Bechervaise, Portsmouth, for defendant corporation. (Reported by T. W. Morgan, Esq., Barrister-at-Law.) LORD HANWORTH, M.R. SCRUTTON, L.J. RUSSELL, J. RHODES v. DIGBY COLLIERY Co.; JUNE 29. Workmen's Compensation-Incapacity-Notice by Employers to Diminish Compensation-Counter Notice by Workmen Reference to Medical Referee-Decision of Referee in Favour of Employers-Registrar Orders Payment of Money out of Court to Employers-Workmen Applies for ArbitrationNo Jurisdiction to Entertain Proceedings for Award— Workmen's Compensation Act, 1923 (13 and 14 Geo. 5, c. 42), sec. 14 (c). APPEAL from an award of the County Court judge at Nottingham, sitting as arbitrator under the Workmen's Compensation Acts. The workman, who was 70 years of age, had met with an accident in the course of his employment in 1917, which resulted in a slight but incurable hernia, causing total incapacity. The employers paid full compensation until 1925, when, in the belief that the workman was only partially incapacitated, and quite able to do some light work, they caused him to be examined by a doctor on their behalf and served a notice upon him, together with the doctor's certificate, of their intention to reduce the compensation from 35s. to 15s. a week at the expiration of ten days, in accordance with the procedure of sec. 14 of the Workmen's Compensation Act, 1923. Within ten days the workman served a counter notice, together with a medical report disagreeing with the employers' doctor's report, but admitting that he had partly recovered. At the joint request of both parties the dispute was referred to the medical referee, who decided that the workman was fit for such light work as lamp cabin duties and able to walk a reasonable distance. The employers then applied to the Registrar for payment out to them of the sum of 21. which they had paid into Court to cover the difference in compensation over a period of two weeks, and the Registrar ordered payment out to them. The workman then made two applications (1) For an award of full compensation; (2) for a review of the diminished weekly payment. The County Court judge made an award of 35s. a week on the first application and the second stood over. The employers appealed. The facts in Wilson v. Digby Colliery Co. were practically the same. R. H. Norris for the appellants; W. Shakespeare for the respondent. THEIR LORDSIPS allowed the appeal. The procedure under sec. 14, sub-clause (c), had been fully carried out, and had resulted in a decision by the Registrar that the sum of 15s. a week was sufficient compensation, having regard to the report of the medical referee. In Pudney v. France, Fenwick and Co. [1924] (94 L.J., K.B. 513; [1925] 1 K.B. 346) there was no counter-notice served by the workman, and the procedure initiated under sec. 14 could not result in a decision, therefore the Court held that he was still entitled to bring arbitration proceedings. But where, as here, sec. 14 had been fully complied with, there was no right on the part of the workman to re-open the case unless and until new circumstances had arisen, such as would justify an application too review. There was no jurisdiction to award compensation, and the appeal must be allowed. Appeal allowed. Solicitors: Peacock & Goddard, agents for Elliott, Smith and Co., Mansfield, for appellants; Taylor, Jelf & Co., agents for E. S. Burton Hopkin, Sutton-in-Ashfield, for respondent. (Reported by H. Langford Lewis, Esq., Barrister-at-Law.) ASTBURY, J. JUNE 16, 17. CHANCERY DIVISION. } COWLEY SETTLED ESTATES, In re. Settled Land-Compound Settlement-Additional Powers given by Component Settlements-Power of Tenant for Life of Compound Settlement to Exercise all Additional PowersSettled Land Act, 1925 (15 Geo. 5, c. 18), sec. 1, sub-sec. 1; sec. 22, sub-sec. 2, sec. 23, sec. 31, sub-sect. 73, secs. 73, 101, 107, 108 and 109, sub-sec. 1, 2, sec. 117, sub-sec. 1 (xxviii). By a settlement made in 1882 the Cowley estates were limited to the 2nd Earl Cowley for life, with remainder to the 3rd Earl for life, with remainder to his sons successively in tail male. A jointure was limited to the wife of the 2nd Earl, and the 3rd Earl had power to charge jointures and portions. The settlement gave additional powers extending the statutory powers to the person or persons in whom the powers of the Settled Land Act, 1882, should for the time being be vested. Such additional powers included a wider range of investment of capital monies. The trustees of the settlement were appointed Settled Land Act trustees. Three jointures and a portion charged under this settlement were still existing. In 1912 the 2nd Earl being dead, the 3rd Earl and his eldest son (now the 4th Earl, but then Viscount Dangan) disentailed the estates and limited them to such uses as they should jointly appoint. In 1914 the estates were re-settled, and the 3rd Earl's life estate under the 1888 settlement was restored. Subject thereto the estates during the life of the 4th Earl were vested in trustees, called the Dangan trustees, on discretionary trusts, but it was decided that, notwithstanding anything thereinbefore contained, for the purposes of all powers under the Settled Land Acts, 1882 to 1890, and all Acts then present or future extending or amending the same, and for the purposes of powers of jointure, etc., the 4th Earl should be in the like position in all respects as if, instead of the limitations and provisions therein contained in favour of the Dangan trustees, the premises thereby settled had been limited in remainder immediately after the death of the 3rd Earl in trust for the 4th Earl during his life. The settlement contained additional powers for the tenant for life, and gave very wide powers of investment, with a proviso that no investment that would not otherwise be authorised by the Settled Land Acts should be deemed an investment thereby authorised, unless the trustees of the settlement consented thereto. The trustees of the settlement were appointed Settled Land Act trustees. The 3rd Earl died in 1919. Under the Settled Land Act, 1925, the 1888 settlement, the disentailing deed, and the 1914 settlement constituted a compound settlement, and the trustees of the 1888 settlement became trustees of the compound settlement. They issued this summons to determine (inter alia) whether the 4th Earl. as having the powers of a tenant for life under the compound settlement, could exercise the additional powers under the 1888 and the 1914 settlements, or either of them, including the wide powers of investment. F. K. Archer, K.C., and H. T. Methold for the 1888 settlement trustees. A. F. Topham, K.C., and P. M. Walters, for the 4th Earl and the Dangan trustees, contended that the 4th Earl could exercise all the additional powers given by either settlement. F. H. L. Errington, for the jointresses and portioner under the 1888 settlement, contended that, if the 4th Earl should exercise the very wide powers of sale and investment given by the 1914 settlement, he might greatly prejudice the security for their interests, that under the 1914 settlement the property could only be settled subject to their paramount charges, and that sec. 109 of the Settled Land Act, 1925, did not apply to the case. Horace Freeman for the 1914 settlement trustees. ASTBURY, J., said that sec. 1 (1) of the Settled Land Act, 1925, provided that references in the Act to a "settlement " should be construed as meaning a compound settlement unless the context otherwise required. That must mean the context of the Act, and he could find no context in the Act requiring any more limited construction. It was of no importance that the construction contended for by the chargees under the 1888 settlement would be a wise and proper one. He must take the Act as it stood, and hold that here there was a compound settlement, a settlor, and additional powers granted and conferred, and that the 4th Earl was entitled to exercise the additional powers conferred by the 1888 and 1914 settlements. But this was not very serious by reason of the safeguards contained in the Act. By sec. 101 the tenant for life before exercising the powers must give notice to the trustees-that is the trustees of the 1888 settlement, who were trustees of the compound settlement. By sec. 107 the tenant for life in exercising any power under the Act must be deemed to be a trustee for the parties entitled under the settlement, and by sec. 75 capital moneys arising under the Act must be paid to the trustees to be dealt with by the direction of the tenant for life. The rule laid down in Hunt's Settled Estates, In re [1906] (75 L.J., Ch. 496 ; [1906] 2 Ch. 11) applied to the present Act, and the tenant for life could be restrained from exercising any of the additional powers to the prejudice of the persons entitled under the 1888 settlement. Subject to this he could exercise the additional powers of investment as well as the other powers. Solicitors Collyer-Bristow & Co.; Wattons & Co. P. O. LAWRENCE, J. } FRAMPTON v. GILLISON AND JUNE 29. ANOTHER. Vendor and Purchaser-Restrictive Covenant-“ Trading to be restricted to Chemistry and Druggists' Business and Dentist or Doctor"-Sub-Post Office carried on in conjunction with Chemist's Shop-Sub-Post Office Breach of Covenant against Trading. On this motion, which was treated as the trial of the action, the plaintiff, who was a builder, claimed an injunction to restrain the defendant, Doctor G., and the defendants, S. & Sons, Ltd., from committing a breach of a covenant contained in the conveyance by the plaintiff to the defendants, S. & Sons, Ltd., of No. 10, B. Hill, Bromley. The plaintiff had built a parade of shops, of which No. 10, B. Hill, was one, and in each conveyance to a purchaser inserted such a restrictive trading covenant as would prevent a similar trade being carried on in shops in immediate neighbourhood. On August 13, 1925, he entered into a contract to sell No. 10, B. Hill, to Doctor G., which contained the following: “Trading to be restricted to chemistry and druggists' business and dentist or doctor." Doctor G. had purchased with a view to the premises being conveyed to the defendants, S. & Sons, Ltd. At the date of the contract S. & Sons, Ltd., had not been incorporated, and Doctor G. went into possession. In October, 1925, Doctor G. applied to be appointed sub-postmaster and to open a sub-post office on the premises, and, having obtained the appointment, with permission to carry on the work of the sub-post office by proxy, has since carried on the sub-post office on the premises. The defendant company were incorporated on November 26, 1925, with the object of carrying on the business of chemists, and Doctor G. was appointed a director. On March 19, 1926, a conveyance was executed by the plaintiff at the request of Doctor G. to the defendants, S. and Sons, Ltd., and the conveyance contained a covenant as to trading in exactly similar terms to the stipulation as to trading contained in the contract of August 13, 1925. A chemist's shop was carried on by S. & Sons, Ltd., on the premises, as well as the sub-post office, which was worked by Doctor G.'s proxy. The plaintiff alleged that the carrying on of the Sub-post office was a breach of the covenant, and claimed the injunction referred to. He stated he had made arrangements whereby an adjoining shop would be opened for the sale of stationery, etc., which could be used for the purpose of carrying on the business of a post office, so that, in the event of the injunction asked for being granted, the post office could be immediately transferred, and there need be no interruption or inconvenience so far as the public were concerned. The scale of remuneration of the sub-postmaster was determined by a scale of payments by which the amounts were regulated in proportion to the amount of business done at the office, and by a cost of living bonus fluctuating with the cost of living. The plaintiff alleged that “trading” referred to buying and selling, and that the post office bought stamps, stamped envelopes, registered envelopes, postcards, etc., and sold them to the public at a profit. The fact that the Government were concerned was not material, but the only question was whether in fact trading was being carried on upon the premises. The defendants contended that the PostmasterGeneral and his agents did not trade since as soon as in the time of Cromwell the work of delivering letters, etc., was taken over by the Government it became a monopoly and no competition was possible. That the word "trading in the covenant was shown by the surrounding circumstances to refer to competitive trading, therefore there had been no breach of the covenant. C. E. E. Jenkins, K.C., and Gilbert Beyfus for the plaintiff ; F. R. Evershed for the defendants. P. O. LAWRENCE, J., said that the question was one which gave rise to considerable difficulty. The vendor was disposing of the shops built by him to various purchasers exacting covenants from each so as not to have competing businesses in the immediate neighbourhood. The defendant, Doctor Gillison, bought with a view to transferring the benefit of the contract to a company about to be formed to carry on the business of chemists. It was necessary to consider what the word "trading meant in the context in which it was used. It was an elastic term and it was inadvisable to attempt a general definition of it. Here there was indication that the word was not used in the narrow sense. Counsel for the defendants had been content to accept its wide meaning that was as opposed to the liberal arts and learned professions. It was said that the business of a sub-postmaster was akin to that of a carrier and an ordinary tradesman as he bought stamped envelopes, postcards, etc., and sold to the public, and clearly that would come within the meaning of the word "trading " in the covenant. If one could divorce the Postmaster-General from the business of sub-postmaster on these premises there would be a breach of the covenant. But this so-called trading was really a branch of the public service and outside this covenant. A sub-postmaster was a subordinate of the Postmaster-General and the Post Office was really a branch of the Revenue with a monopoly of the sale of stamps, etc., and the delivery of letters, therefore the carrying on of the sub-post office was in no sense a competing business with any private individual. His lordship therefore came to the conclusion that on the ground that the office of a sub-postmaster was a branch of the public service and that such work performed by the Postmaster-General was a monopoly, the work carried on was outside the covenant, and the action and motion must be dismissed with costs. Solicitors: James & Charles Dodd for the plaintiff ; W. R. Millar & Sons for the defendants. Reported by Geoffrey P. Langworthy, Esq., Barrister-at-Law.) EVE, J. JUNE 24. BAELZ V. PUBLIC TRUSTEE. Treaty of Peace Order-Charge on Property of German Nationals -Shares in Company Registered in England-Carrying on Business in Holland-Liability to Charge. In this action the plaintiff, a German national, claimed that his interest as a shareholder in a certain limited company was not subjected to the charge imposed by the Treaty of Peace Order, 1919. The plaintiff was a German national resident in Germany, and was at the time when the charge was imposed the beneficial owner of certain shares standing in the name of his late father in the books of a trading corporation registered in England in 1897, and formed to acquire and continue a business theretofore and since carried on wholly in Holland. In 1909 the company's articles were modified so as to provide that all meetings of members and directors should be held in Holland, and from that date all meetings had been held and the whole of the administrative business had been conducted in Holland. In these circumstances the company had been treated for revenue purposes as resident in Holland, and since 1909 had not been assessed for income tax in this country. The plaintiff contended that the shares were not subjected to the charge, because the location of the shares was in Holland, there the principal place of busines was to be found, and where it could only properly be said to be domiciled. J. M. Gover, K.C., and Richard O'Sullivan for the plaintiff ; Gavin Simonds, K.C., and J. H. Stamp for the defendant. ... EVE, J., said that the plaintiff relied upon certain statements in Dicey's Conflict of Laws and some extracts from speeches in the House of Lords. At p. 100 of Dicey, rule 19 states that the domicil of a trading corporation is its principal place of business, that is, the place where the administrative business of the corporation is carried on. And subject to a significant qualification, the language of Lord Loreburn in De Beers Consolidated Mines v. Howe [1906]; 75 L.J., K.B. 858, (1906) A.C. 455 points to the same conclusion. He says: "In applying the conception of residence to a company we ought, I think, to proceed as nearly as we can upon the analogy of an individual to see where it really does business. .. The decision in Cesena Sulphur Co. v. Nicholson ([1876], 45 L.J., Ex. 821; 1 Ex. D. 428) involved the principle that a company resides for the purpose of income tax where its real business is carried on." The introduction of the words "for the purposes of income tax indicates the limit of the principle. The language of the Lord Chancellor in Bradbury v. English Sewing Cotton Co. [1923], 92 L.J., K.B. 736; [1923] (A.C. 745), where he says that shares in a company are locally situate where the company's principal place of business is to be found, and that where the company is there the share is also, affords the plaintiff no assistance after the Chancellor's own explanation in Swedish Central Railway v. Thompson [1925] 94 L.J., K.B. 527 [1925] (A.C. 495) that his words were not directed to any question of residence, but to the position of the shares as a source of income for income tax purposes. The case was covered by the decisions in Attorney-General v. Higgins [1857] (26 L.J., Ex. 403; (2 H. & N. 339 and Brassard v. Smith [1924] (94 L.J., P.C. 81), [1925] A.C. 371), and the action failed, and must be dismissed with costs. : Solicitors Cruesemann & Rowse; Coward & Hawksley, Sons & Chance. (Reported by S. E. Williams, Esq., Barrister-at-Law.) PRACTICAL POINTS. Questions from Annual Subscribers only are answered; these must be typewritten, and should be in duplicate, the name and address of the subscriber being stated. Owing to the large number of questions received, a proportion only can be published in this Column, answers to questions not selected for publication being sent to the subscriber by post. QUESTIONS AND ANSWERS. 1. Annuity. Grant of Making Seal Stamp Duty. A. wishes to give his daughter B. a certain sum of money to buy a house, and in return, proposes to accept an annuity for his lifetime. We have drawn up a short agreement to be signed by B. agreeing to pay the annuity in return for the gift. Is a sixpenny stamp on the agreement sufficient or should there be a formal grant ? A. does not wish for a formal grant, but is quite willing to leave it to his daughter's sense of justice and affection to pay the annuity. ANSWER. Annuities are usually created by deed, but an agreement for the grant of an annuity may be enforced, though not under seal. See Halsbury's Laws of England, Vol. 24, p. 479. Whether under seal or not, it will, I think, attroct duty at the rate of 2s. 6d. for every 51. of "the sum periodically payable." If, therefore, the annuity is 60l. per annum, and is expressed to be such, even though payable by instalments, the duty will be 17. 10s. If, however, the agreement were to pay 51. a month, the duty would be only 2s. 6d. See Clifford v. Inland Revenue Commissioners [1896], 2 Q.B. 187, and Jackson v. Inland Revenue Commissioners, 50 W.R. 666. Cf. Lewis v. Inland Revenue Commissioners [1898], 2 Q.B. 290. 2.-Executors and R. Administrators.-Sale-Purchase by Administrator-Purchase in Wife's Name. A. died in 1923 intestate possessed of a leasehold cottage, and leaving a widow and infant children surviving. The widow never took out Letters of Administration. She died in 1925, and probate of her will was granted to B. and C., the executors, on March 19, 1926. Letters of Administration of the estate of A. were granted to D. and E. on June 24, 1926. It is desired to sell the cottage. Will you kindly inform me how this should be done. D. would like to purchase if he can do so, but if he cannot, he proposes to do so in his wife's name. The children are under age. ANSWER. D. and E. can sell the cottage as the personal representatives of A. D. cannot purchase without the leave of the Court (see Halsbury's Laws of England, Vol. 28, p. 167). Except under an order of the Court, a sale to D.'s wife might, I think, be successfully attacked by, or on behalf of, the infants, and it is very doubtful if any purchaser from the wife would accept her title as good. R. 3.-Executors and Administrators.-Partial Intestacy-Vesting. On April 28, 1926, A. died, having by his will appointed two executors, and he gave and bequeathed unto his wife all his property of every description for her own absolute use and benefit during her lifetime. The deceased left a widow and seven children, all of age. The net estate amounts in value to the sum of 9371. 9s. 6d., the greater part of which consists of a freehold dwelling-house in which the testator resided. It would appear that the testator died intestate with regard to the reversion expectant on the death of the widow, and that being so, the widow would be entitled to all the estate by virtue of sec. 46 of the Administration of Estates Act, 1925. It is desired that the freehold house be assured to the widow, and if the executors give an assent under sec. 36 of that Act, would this be sufficient to vest the same in her? ANSWER. Yes, I think so. The will and the fact that the widow is entitled by reason of a partial intestacy should be recited in the assent. Cf A.E.A., s. 49. 4.-Executors and Administrators. Realty Transfer of Realty to Surviving Husband. R. Intestacy A., a married woman, died in 1925 intestate, possessed of freehold property consisting of two houses (value about 4501.) and moneys amounting to 1,000l. She leaves a husband and two infant children, boy and girl. Letters of Administration granted in 1926 to B. (husband) and C. B. is desirous of providing for the children, and is willing to settle the personalty upon the infants, but is anxious to have the property in his own name in fee simple. Will you please say what you think the best method of carrying the two transactions into effect, and where the necessary precedents will be found? ANSWER. Subject to the husband's curtesy, the freeholds, of course, pass to the son. The personalty passed to the husband, and the daughter has no interest. The land is settled land. I think that the only way in which B. can get a title to the houses is by purchasing them. This he cannot do without the leave of the Court (see Halsbury's Laws of England, Vol. 28, p. 167), but on an application for that purpose, and on its being made clear that the transaction will be for the benefit of the son, leave would probably be granted. The purchase money can come out of the 1,000l. to which B. is entitled, and he can make whatever provision he thinks right for the daughter. R. A. dies in 1910, possessed of a small freehold property, subject to a mortgage. He left a widow and a daughter. Widow same year granted letters of administration. Later she pays off mortgage with her own moneys, and property reconveyed to her in fee simple. She has since borrowed moneys and desires to give a legal mortgage on the property. The daughter has died leaving infant children. (1) What are the rights of the children, and what steps should be taken to safeguard their interests ? (2) In what way could the widow give the required mort gage? ANSWER. (1) The widow is, I think, entitled to be considered as a mortgagee, or the property for the amount paid off by her out of her own moneys, and to that extent she can probably charge the property. As to the rights of a personal representative generally to mortgage, see Halsbury's Laws of England, Vol. 14, p. 296, et seq., and the Administration of Estates Act, 1925, sec. 39. The administratrix and her sureties are, of course, liable in respect of any breach of duty. If there is any risk of the infants' rights being affected, proceedings for the administration by the Court of the intestate's estate may be taken. R. 6.—Mortgage.—Tenants in Common-Discharge of. In 1899 A. mortgaged to six people certain leasehold premises, the mortgagees to hold in equal shares as tenants in common. All the mortgagees are now living, and are the children of A., who died in May, 1904. A., by her will, appointed four executors (children), three of whom are now living. The above mortgage is still in force, and the executors have agreed to sell the property comprised therein by a contract dated June, 1926. The legal estate would appear to be vested in the personal representatives of the deceased, subject to the mortgage, and it is conceived that the personal representatives can give a good title to the property, providing that the mortgagees either join in or give a receipt on the mortgage. It is, however, contended by the purchaser's solicitors that under the joint operation of Parts 4 and 7 of Sched. I of the Law of Property Act, 1925, that the legal estate is not in either the personal representatives or the mortgagees, owing to the fact that there are six tenants in common, and that the legal estate is in the Public Trustee. Part 4 referred to would appear not to refer to mortgagees as tenants in common. Cannot the personal representatives sell without the Public Trustee coming in, or without the appointment of new trustees ? An agent is employed in writing to sell a house, and his contract of agency is expressed to be irrevocable for a certain time and his commission is agreed. During this period he is in communication with a person, but the owner maintains too high a price and no business results. The contract of agency is never expressly revoked, but very shortly after the period of irrevocability has expired the price is reduced by the owner and the house is sold by him to the person with whom the agent had previously been in communication. Can the agent claim his commission at agreed figure or any commission at all? Authorities would oblige. ANSWER. It is a question of fact whether the transaction really took its origin through the previous communication with the agent. If it did, the agent would seem to be entitled to commission on the sale price. In vol. 1, Halsbury's Laws of England, at pp. 194, 195, it is said “ remuneration can be claimed only in transactions which are the direct consequence of the agency. It is not necessary that the agent should actually complete the transaction, but he must show that it is brought about as the direct result of his intervention." See Green v. Bartlett [1863] (14 C.B., N.S. 681, 685); Toulmin v. Millar [1887] (58 L.T. 96). It is not stated whether the agent was the means of bringing the owner and purchaser together. If he did the agent appears entitled to commission. A. C. 9. Settled Land.-Tenancy by the Curtesy-Procedure on Death of Husband. A., a married woman, died intestate in 1901, possessed of a freehold house, leaving her surviving B., her husband, and C., her eldest son, who has long since attained his majority. Letters of administration to the estate of A. were granted to B. in the year 1901, who thereupon entered into possession of the house as tenant by the curtesy. No conveyance was made by B. as personal representative of A. to C. as heir-at-law. B. died since January 1, 1926, still in occupation of the house. (1) What is the position under the new simplified method of conveyancing? (2) Does the house become settled land under the Settled Land Act, 1925 ? (3) What procedure is necessary to vest the legal estate in C.? ANSWER. (1) On January 1 last the legal estate became vested in C. as tenant for life, and on his death devolved on his personal representatives (Settled Land Act, 1925, sec. 19 (1) (vii) and (2), and sec. 7). (2) Yes. (3) A grant of probate or letters of administration to B.'s Estate. This could be a general grant, as there are no settlement trustees. The personal representatives of B. should then execute an assent in favour of C. (Settled Land Act, 1925, secs. 7 (5) and 8). G. E. 10.-Trespass.-Action-Pleadings. A cornice (near roof) has been erected by adjoining owners C. and D., extending and reaching out some five feet over the whole of the side of B.'s property. B. has requested C. and D. to take down the cornice; they have refused. Will you please say what the writ of summons and Statement of Claim should show and state. ANSWER. Both the Writ of Summons and the Statement of Claim should be settled by counsel on full instructions. R. 11.-Undivided Shares.-Trustees-Power to Mortgage. I have received instructions to prepare a conveyance to two persons who are finding the purchase money in equal shares, and who, under the old law, would take a conveyance as tenants in common in equal shares. Under the new law they will, of course, take a conveyance as joint tenants upon trust to sell with power to postpone and divide the income before sale and the proceeds after sale in equal shares. The consideration is rather substantial, and the bulk thereof will be provided by the bank, who will require a mortgage as security. It appears that the powers of trustees for sale are similar to those of tenant for life, which, of course, would not include a mortgage such as the one mentioned. Will you please advise upon the following points :(1) Whether an express power to mortgage should be included in the conveyance? (2) How this power should be worded? I enclose a draft conveyance in blank in duplicate. I do not consider that it is necessary to insert an express power to mortgage as the trustees have such power by virtue of the Trustee Act, 1925, sec. 16, but, if desired, the following clause can be added to the draft conveyance :— "It is further agreed that the trustees or trustee for the time being of this deed shall have full power at any time hereafter to mortgage, lease or otherwise dispose of all or any part of the said hereditaments with all the powers in that behalf of absolute owners." See the Encyclopædia of Forms, vol. 15, p. 631. G. E. 12.-Vendor and Purchaser.-Trust for Sale. Testatrix by her will devised all her real estate unto her trustees upon trust that her trustees should permit her daughter H. E. J. to reside in a dwelling-house and premises therein described for and during her natural life, and, subject thereto, should sell her real estate and should sell, call in and convert into money her personal estate, and, after providing for debts, etc., should invest the residue of the said moneys in their names as therein mentioned, and to pay the annual income thereof to her said daughter for her life. We are acting for the purchaser of a house, part of the real estate of the said testatrix, but not the house described in the said will which the trustees are to permit the daughter to reside in. The vendor, according to the contract, is the said daughter as tenant for life, and the vendor's solicitors state that they are preparing a vesting deed. In our view, however, this is not a settlement and a vesting deed is not necessary; htere appears to be an immediate trust for sale, and therefore the proper vendors are the trustees. The testatrix died in 1907, and there is a power to postpone sale. Will you please say whether we are right or not? ANSWER. I agree that in this case there is an immediate trust for sale and that the Settled Land Act, 1925, does not apply. The vendors should be the trustees and not the tenant for life. A vesting deed is, therefore, not required, but unless the executors have assented to the devise to the trustees (Administration of Estates Act, 1925, sec. 36) the executors can sell as personal representatives. If the testator died before 1926 there may, of course, have been an implied assent. G. E. |