Is such duty payable out of the testator's residuary estate, and, for the purpose of fixing the rate, does this estate aggregate with the sister's free estate?

ANSWER.

No claim for duty arises in the circumstances: Finance Act, 1894, sec. 5 (3); Attorney-General v. Glossop [1907] (1 K.B. 163). R.

5.-Executors and Administrators.-Letters of Administration-Revocation of Grant-Dealings with Estate by Adminis

trator.

In May this year a person took out letters of administration to his father's estate in order to dispose of a leasehold dwelling-house which had belonged to the deceased. The property was sold and assigned to the purchaser by the administrator. It was subsequently discovered by the Probate Registrar that a grant of administration to deceased's estate had been made some years ago to a brother of the present administrator and the Registrar thereupon required the second grant to be returned to the registry for revocation and this has been done. Has the purchaser of the house got a good assignment in view of the fact that the property apparently vested in the administrator under the first grant and therefore possibly could not vest in the administrator under the second grant. But see sec. 37 of the Administration of Estates Act, 1925. Ought both administrators to have assigned or is one sufficient?

ANSWER.

Sec. 37 of the Administration of Estates Act appears to be founded upon Hewson v. Shelley [1914], 2 Ch. 13. In the case stated in the question there were apparently two grants of administration in existence at the time of the sale, and it is perhaps doubtful, therefore, if sec. 37 applies. I think that the first administrator should execute a deed assigning and confirming the property to the purchaser. R.

6.-Executors and Administrators.—Trustees-Tenant for Life-Death-Sale.

By his will dated July 13, 1918, A. appointed his sons B. and C. executors and trustees, and thereby gave to his wife during her life the use of his household furniture and the income arising from his dwelling-house therein mentioned. Upon the death of his wife testator requested his trustees to sell or convert into money his household furniture and his said dwelling-house and divide the same together with the residue of his estate as therein mentioned.

The testator died in 1922 and probate of his will was granted to C., one of his executors, power being reserved to B., the other executor named in the said will. The widow died this year intestate, and no vesting deed having been executed. C., the proving executor, has now agreed to sell the house. What steps should be taken in order to enable same to be conveyed to the purchaser, having regard to the power reserved in favour of B.

ANSWER.

If there has been no express or implied assent by C. as executor he can sell as personal representative without B.'s concurrence (Administration of Estates Act, sec. 2 (2). Otherwise C., who is a Settled Land Act trustee (Settled Land Act, sec. 30 (3)) should take a grant of administration of the widow's estate limited to the settled land and should assent to its vesting in himself and B. on trust for sale (Settled Land Act, sec. 7 (5). R.

9.-Executors and Administrators. Debts-Duties of Representatives.

A bookmaker dies on June 1, 1926, owing and being owed large sums for bets.

(a) Should his administrators include those debts as being due to and from his estate in their Inland Revenue affidavit ? (b) May the administrators pay those debts due from the estate?

(c) Are the administrators in any stronger position than the deceased in recovering those debts due to the estate? ANSWER.

(a) The administrators should, I think, include in the assets only such bets as have been actually paid to them or to the deceased. If further bets are afterwards paid to them they can render a corrective affidavit. No deduction can, I think, be taken in respect of betting debts due from the deceased.

(b) No, I think not. As a general rule it is a devastavit for a personal representative to pay that which need not be paid. See Halsbury's Laws of England, vol. 14, p. 251. (c) No. Cf. the Gaming Act, 1922, sec. 1. R.

10.-Intestacy.-Prior to 1926-Gift of Realty by Heir to the Widow.

A., owner in fee simple of a freehold house, died in February, 1925, intestate, leaving B. (his widow) and C. (his son and heir-at-law). Letters of administration were taken out by B. in May, 1925. C. was an infant at the time of A.'s death, and also on January 1, 1926. He attained 21 in April, 1926, and now wishes to give the house to his mother B. absolutely.

Will a conveyance by B., as personal representarive (by the direction of C.) to herself B. absolutely, free from the debts, etc., of A. (deceased), be effective, or will the land first have to be dealt with as settled land under the Settled Land Act, sec. 1 (3) ?

There is no reason why the fact of C.'s infancy should appear on the title apart from the provisions of the Settled Land Act.

ANSWER.

The legal estate in the property is still vested in B. as personal representative, as apparently no assent nor conveyance has yet been executed. I think, therefore, that a conveyance on the lines proposed would be effective.

G. E.

11.-Landlord and Tenant.-Sub-letting Rights of Sub-tenant. With reference to Practical Point No. 7 in your issue of July 3, kindly advise as to position of sub-tenant in the following circumstances :-

A. lets a house to B. prior to July, 1923, on a verbal agreement, the question of sub-tenant not being mentioned. The house is controlled. In November, 1923, A. sends C., a person casually employed by him, to take two unfurnished rooms in B.'s house, B. assenting.

In 1925 B. quits, leaving C. in possession. D. becomes tenant, leaving C. undisturbed, but makes no agreement with him. D. has now quitted. Can C. be ejected by A.?

ANSWER.

I think not. The position is that B. sub-let to C. with the approval of A., and I think that thereupon C. became entitled to the protection of the Rent Restrictions Acts: Cf. sec. 5 (5) of the Act of 1920 and the first proviso to sec. of the Act of 1923.

2 (1) R.

12.-Lessor and Lessee.-Leaseholds-Apportionment of Rent –Subsequent Surrender of Part.

Some years ago A. granted a lease of three dwelling-houses, which ultimately became vested in B., for the unexpired residue of the term. B. assigned one of the dwelling-houses to C., and as between herself and C. apportioned the rent reserved by the lease, the assignment giving mutual powers of entry and perception of rents and profits over the properties

sold and retained by way of indemnity against the payment by the vendor or purchaser of an undue proportion of the rent. B. now wishes to surrender to the lessor her interest in the two dwelling-houses.

We shall be obliged if you can tell us whether this can be done, and, if so, where a precedent for the surrender can be found?

ANSWER.

The transaction will be carried out by way of surrender, and precedents Nos. 297 and 303 in the Encyclopædia of Forms, vol. 15, pp. 1,008 and 1,022 can be readily adapted for the purpose. G. E.

13. Master and Servant.-Nurse Employed for Infectious Cases-Infection Contracted by Nurse-Liability of Employer.

A., a nurse, was engaged by B., a schoolmaster, to nurse his scholars at a school who were suffering from mumps. The nurse contracted this disease, and the schoolmaster told her that she could be nursed at the school sanatorium. The nurse was not agreeable to this, as there was no one to nurse her, only a caretaker who went into the sanatorium occasionally, mostly to take the meals. The schoolmaster refused to provide any other accommodation, and the nurse then left and went home, where she was quarantined for a fortnight. In consequence of contracting the disease she lost fees and other expenses. She now desires to take action against the schoolmaster for loss of fees.

(a) What form should the action take?

(b) Would it make any difference to her claim, the fact of her going home to be properly nursed in view of the schoolmaster's neglect in finding proper nursing for her?

ANSWER.

Having regard to the purpose for which A. was employed she seems to have no cause of action in respect of loss of fees. It appears doubtful whether she could claim in respect of other expenses on account of the alleged neglect in finding proper nursing. A. C.

14. Mortgagor and Mortgage.-Enforcement of Mortgage— Rent Restrictions Act, 1920, sec. 7.

Mortgagees of a security protected by the Increase of Rent, etc., Act, 1920, and whose interest was more than 21 days in arrear (in fact six months) served notice calling the mortgage in.

Thereafter the mortgagor paid the interest up to the quarter day preceding the notice. Having done this, he asserts that the notice is ineffective, and the security still protected by the Act. Proceedings have not been started as in Evans v. Horner [1924], W. N. 313.

Is he right, or can the mortgagees still proceed?

ANSWER.

I think that the mortgagee is entitled to proceed to enforce his security. When once the conditions of sec. 7 of the Act of 1920 are broken the protection of the Act is gone. See the judgment of Russell, J., in Evans v. Horner as reported [1925] Ch. 178. R.

15. Partnership.-Partnership Property Conveyance to new

Partners.

A. (father), B., C. and D. (sons) in partnership of two businesses for many years. A., the father, only took a weekly sum during the last term by written agreement. A. died in 1925, leaving will appointing B. and C. executors, and they have obtained probate. The articles of partnership at death of A.: B. and C. take one business and D. the other.

During partnership a piece of land adjoining the business premises of B. and C. was bought and paid for by the partnership business in the name of A. because vendor would not sell to anyone else. No conveyance since to partners. By partnership accounts the land at full value taken over by B. and C., the other brother having full credit. It is now desired to put the title to B. and C. in order.

Can they convey to themselves as personal representatives of A., and therefore without D. joining in? If not, please say what other method is suggested and the precedent.

ANSWER.

I think that, as the property was purchased out of partnership money, the conveyance should be by B. and C. as executors of A., with the concurrence of D. to B. and C. Precedent 112 in the Encyclopædia of Forms, vol. 15, p. 633, can be adapted for the purpose. There should be a recital showing that A. was in effect a trustee for the partners. G. E.

16. Sale of Goods.-Exhibition in Shop Window-Contract, Re your answer to query No. 9 of the issue of July 3, I would call your attention to the case of Timothy v. Simpson

(1834), 1 C.M. & R., p. 757, 5 Tyr., p. 244-6, C. & P., p. 499, and which is mentioned on p. 162, Addison on Torts, 8th Edn. ANSWER.

I am much obliged to my correspondent. The effect of Timothy v. Simpson, which was an action for assault and false imprisonment, is thus stated in Addison: “If a shopkeeper puts goods into his shop window, ticketed at a certain price, he is not bound to sell them at the price marked; and if a customer insists upon having the goods and refuses to leave the shop after having been requested so to do by the shopkeeper or his servants, he may be turned out." R.

17. Settled Land-Appointment of Additional Trustee.

A., the testatrix, died in November, 1922, having made her will whereby she appointed her husband B. to be executor, and gave to him a freehold and a leasehold house therein described, simpliciter. At the decease of B. she desired that the above property be sold and the proceeds equally divided between her children, one of whom is at present a minor.

It is desired to sell or mortgage the property. How is this to be done in each case ?

ANSWER.

I think that the husband is tenant for life, and he should appoint an additional trustee for the purposes of the Settled Land Act, 1925, sec. 30 (3). See Precedent 14 in the Encyclopædia of Forms, vol. 6, p. 484. After a vesting assent or conveyance is made to the tenant for life he can sell under the powers contained in the Act. The property could only be mortgaged for the purposes of administration or under the powers contained in the Settled Land Act. G. E.

18. Settled Land.-Trustees-Vesting Deed-Settled Land Act, 1925.

A testator who died 20 years ago devised a house to his wife for life, then to his children as she should by will appoint, and in default of appointment to his two children equally. He appointed his wife executrix during her life and at her death appointed his two children executors. Wife and children are still living. No vesting deed. What steps must be taken to regularise the position under the new laws of property? ANSWER.

The widow, who is a Settled Land Act trustee (Settled Land Act, sec. 30 (3)), should appoint another trustee to act with her or two new trustees, and they should then execute a vesting deed as provided by Sched. II. of the Act. R.

19. Settlement.-Appointment of Trustees.

(1) By a settlement made in 1915 A. conveyed certain freehold and leasehold properties to himself and B. upon trust (in effect) for himself for life, with remainder to B., and an annuity was charged on all the properties in favour of C. for life.

(2) A. and B. are not trustees of the settlement within the meaning of sec. 30 (1) (I-IV) of the Settled Land Act, 1925.

(3) A., B. and C. are still alive, and have not in any way alienated their beneficial interests under the settlement.

Are A., B. and C. jointly capable of appointing trustees of the settlement? See sec. 30 (1) (V), Settled Land Act, 1925.

If so, where is there a form of such appointment?

Is there any objection to A., B. and C. appointing themselves such trustees?

ANSWER.

The appointment of trustees can apparently be made by A., B. and C. under the Settled Land Act, 1925, sec. 30 (1) (v.), and there is no objection to an appointment of themselves. I cannot refer the subscriber to a form of such appointment, but it should follow the usual form of appointment of new trustees, reciting that it is made in pursuance of the statutory G. E. power.

20.-Tenants in Common-Vesting of Legal Estate.

In 1897 Jane and Mary purchased a leasehold plot of land as tenants in common. Jane died in 1917, leaving a will by which she gave and bequeathed to Mary for her life all the real and personal estate, and, after the death of Mary, her brother George should inherit absolutely. George died in 1921, and left a will whereby, after certain specific bequests (not including the said property), he gave all his property to Francis. Mary died in 1925, and, after certain specific legacies, she also left all her property to Francis. The executor of Jane's will was George, and the executor of George's will

was Tom, so that by representation Tom becomes the executor of Jane. Francis is the executor of Mary.

It will be observed that Francis is now entitled to the whole of the leasehold property comprised in the indenture dated 1897, and your opinion as to the method of vesting the property in Francis beneficially will be appreciated.

It is presumed that Tom cannot convey half share of Jane to Francis, and Francis vest half share of Mary in himself, as this would not comply with the Law of Property Act, but at the present moment Tom holds as personal representative of Jane, and Francis holds as personal representative of Mary. The estate is very small, and it is desired to vest the whole of the property in Francis with as little expense as possible. Will you please suggest a course, and can you refer me to precedents (either K. & E., Prideaux or Encyclopædia) ? ANSWER.

In my opinion the legal estate is already vested in Francis and no further document is necessary. As to Jane's moiety, Jane died in 1917 and the assent by her executors can be assumed, as no doubt Mary was in receipt of the rents and profits up to the date of her death in 1925, and the moiety then passed to Francis under the old law.

As to Mary's moiety, Mary died in 1925, having by her will appointed Francis sole executor, and he is her residuary legatee. Apart from this, I think that the provisions of the Law of Property Act, 1925, Sched. I, Part II., paras. 3 and 7 (d),' are sufficient to vest the legal estate in Francis. G. E.

21. Trepass.-Removal of Boundary Wall.

The occupier of the house at the rear of my client's house (of which he is the freeholder) has removed a good deal of the wall dividing the two gardens. There is no doubt the wall belongs to my client's house, and as the removal was done without his knowledge or consent I shall be glad to know what remedies my client has. ANSWER.

The remedy would be by action for damages in respect of the trespass, claiming an injunction if necessary. G. E.

22.-Trust for Sale.-Sale by Personal Representative or by Trustees.

A., who died in 1904, by his will appointed B., C. and D. (therein called his trustees) executors and trustees, and (inter alia) devised his real estate to his trustees upon trust for sale and to pay the income of the proceeds to his wife for life, and, after her death, upon trust for his children. The will contained a declaration that the testator's widow might occupy any residence during her life. B. is the last surviving trustee, and, in consequence of the death since December 31 last of the tenant for life (who had been occupying the house), it is desired to sell the testator's freehold residence and distribute the proceeds among the children. In order to avoid the trouble and expense of appointing a new trustee of A.'s will to give a valid receipt for the purchase money, can B. sell as personal representative of A.? It is not found practicable to make the beneficiaries parties to the conveyance for the purpose of giving the receipt for the purchase money, since they are numerous; one is now living in America.

In 1873 four cottages were conveyed as follows:-As to one undivided moiety to A. As to the other undivided moiety to B. (a married woman) for her sole and separate use and benefit.

On the day following the conveyance A. and B. (B.'s husband being a party also) mortgaged the property to a Friendly Society. It appears that for the past forty years A. collected the rents of two cottages and B. the rents of the other two. A. is still living, but B. died in 1924 intestate, her husband having predeceased her and their only son C. The interest was regularly paid by A. as to his half and by B. as to her half. C., the only son of B., predeceased her in 1918, having made a will appointing X. and Y. his executors. No administration has been taken out to B.'s estate, but X. and Y. sold the two cottages, the rents wheerof had been received by B. previous to December 31, 1925. A conveyance is now

necessary. Please state the shortest, cheapest and simplest method of dealing therewith.

ANSWER.

From the facts stated B. died in 1924 without an heir, and her share of the property would therefore go to the Crown. As C. died in 1918 before his mother, X. and Y., his executors, have nothing to do with the property and had no power to sell. In any case, as the four cottages were held in undivided shares on January 1, 1926, the legal estate is vested in the Public Trustee (Law of Property Act, 1925, Sched. I, Part IV, para. 1 (4)). As to the application of the Act to the Crown see sec. 208 (2). G. E.

24.-Vendor and Purchaser.-Sale-Sub-Sale-Form of Conveyance.

Under a written contract A. sells property to B. B., under a written contract, resells at a profit to C. In the deed of conveyance to C. are the following words, "the vendor as beneficial owner hereby conveys and the purchaser (B.) hereby confirms unto the sub-purchaser." It is submitted that the equitable interest in the property was vested in B. though purchaser and he should have" conveyed" as well as 66 confirmed so as to have divested himself of his equitable interest. Does the omission of the word convey affect the deed and is there any outstanding legal estate still vested in B., the purchaser. Your opinion will oblige.

ANSWER.

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It is usual for a purchaser to convey and confirm " when the vendor conveys direct to the sub-purchaser (see the Encyclopædia of Forms, 2nd Edn., Vol. 14, p. 196, and Vol. 15, p. 597, and Prideaux, Vol. 1, p. 488.

25.-Vendor and Purchaser.-Tithes.

A. was the owner of a freehold field in possession. He instructed B., his agent, to sell. C., a prospective purchaser, called on B. and inquired, amongst other things, what amount of tithe was payable on the property. B. said: "No tithe is payable; it has been redeemed." Ultimately the property was purchased and a solicitor acted between the parties. No requisitions on title were made. Recently C. receives a demand for half-year's tithe on this property. He sees the agent B., who informs him again that there must be a mistake, as the tithes are redeemed. On making inquiries from the owner it is found that the tithes are not redeemed. What is C.'s remedy? As owner in possession he is, of course, responsible for payment of tithes, and it is suggested that he should pay the first demand for tithes and sue the owner A. for repayment. of the sum, and, if judgment is obtained, this, it appears, would settle the question. C., having spent considerable sums of money on the property since purchased, does not desire to take any steps to hand back the property to the vendor. ANSWER.

The course suggested might be taken, but I doubt if C. has any remedy unless he can prove that the misrepresentation by the agent was fraudulent (see Pearson & Son, Ltd. v. Dublin Corporation [1907] A.C. 351). Tithe rentcharge is not an incumbrance, and the position is further complicated by the fact that there was apparently no formal contract. and the same solicitor acted for both parties. G. E.

CORRESPONDENCE.

AN IMPERIAL SCHOOL OF LAW. To the Editor of THE LAW JOURNAL. SIR,-Nomenclature is not unlikely to play some part in promoting the favour or disfavour with which the project of an " Imperial School of Law" is to be received. Professor Herbert Smith, in his recent address to the Society of Public Teachers of Law and elsewhere, has warned us of the danger which might arise from the idea that such a school would be actuated by the desire to assert the pre-eminence in worth of the Common Law within the Empire. The word "Imperial" with its associations of Imperialism" on the one hand tends to suggest that spirit, while on the other hand the whole title by its synonymy with previous efforts which were fruitless is calculated to reawaken differences and controversies prejudicial to a "remaining together "after" getting

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99

SIR, Recently several members of this Society practising in various parts of the country have complained of the conduct of quasi-auctioneers in their vicinity in that they describe themselves as auctioneers on their notepaper, advertisements and so forth without being in possession of an auctioneer's licence. The reply of the latter is that there is no obligation to take out an auctioneer's licence except for the express purpose of conducting a sale. Thus they consider themselves entitled to describe themselves as auctioneers for, say, 11 months, without actually conducting a sale, and while all the time attempting to justify their assumption of the profession. Eventually their efforts succeed. With a sale now in prospect they duly take out their 101. auctioneer's licence.

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99

The attitude of the Revenue Authorities is contradictory. In some cases local officers have demanded that people decsribing themselves as auctioneers must be in possession of a licence. Others consider themselves destitute of authority to make this demand.

With a view to obtaining some definite ruling on the matter this Society has taken it up with the Board of Inland Revenue and have also attempted to do so by question in the House.

As regards the latter, however, the Clerk at the Table has

ruled that this being a matter of interpretation of law a Minister cannot be interrogated upon it.

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Put very briefly, the question appears to turn upon what is meant by "carrying on the busines sof an auctioneer." The authorities (Bateman on Auctions, Halsbury's Laws of England, vol. 1, Nokes' " Auctioneers' Manual") are unanimous in agreeing that whoever does carry on such business, subject to certain statutory exceptions,, must take out an annual auctioneer's licence at the cost of 101.

Without desiring to be unduly hard upon those who by reason of trade depression have been unable to maintain their

LEISURE MOMENTS.

FORENSIC FABLES.-No. 29.

THE DILIGENT PUPIL AND THE MATURE

PRACTITIONER.

A MATURE Practitioner had a Diligent Pupil who Wanted to Know All about Everything. So Insatiable was his Thirst for Knowledge that the Patience of the Mature Practitioner was Sorely Tried. From Morning till Night the Diligent Pupil Plied him with Questions about Practice and Procedure, Professional Etiquette, Case-Law and Legal Biography till his Head Span. The Time Came when the Mature Practitioner Felt he Could not Stand It Much Longer. One Fine Day the Mature Practitioner was Unexpectedly Deserted by his Leader at a Critical Moment. The Case had Taken a Nasty Turn and the Leader Suddenly Remembered that he had to Send a Telegram. The Diligent

the Mature Practitioner was about to Address the Jury the Diligent Pupil Tugged his Gown and Wanted to Know why the Judge was Wear

titioners should have to face competition from people who, strictly speaking, are not permanently so engaged. I trust that, in view of the fact that this is to some extent a matter where public policy is involved, you will allow other views space in your columns. The present is an apt time for discussion of the question, as, July 5 having gone by, auctioneers' licences are now due for renewal.

Practitioner had Told him they were Never Worn in Jury Cases. The Case was Part Heard when the Court Rose and the Mature Practitioner was Feeling Distinctly Irritable. In Particular he was Worried about his Engagements for the Following Day. As Soon as he Got Back to his Chambers the Diligent Pupil Asked him when his Case would be Reached in the Court of Appeal, what he Would Do if it Came on before the Part-Heard Case was

The Boards of Guardians (Default) Bill was read a second time (July 14), and passed its remaining stages. July 15. The Sale of Food (Weights and Measures) Bill was read a second time. July 15. The University of London Bill was read a third time. July 15.

The following received the Royal Assent :— The Secretaries of State Act, 1926. The Re-election of Ministers Act, 1926. The Boards of Guardians (Default) Act, 1926. The Markets and Fairs (Weighing of Cattle) Act, 1926. July 15. The second reading debate on the Trade Disputes Act. 1906 (Repeal) Bill was adjourned. July 20, The Post Office (Sites) Bill passed through Committee July 20. The Horticultural Produce (Sale on Commission) Bill, the Auctions (Bidding Agreements) Bill, and the Home Counties (Music and Dancing) Licensing Bill were read a second time. July 20.

COSTS OF INCOME TAX APPEALS. LORD HARRIS rose to draw attention to the hardship imposed on taxpayers by the practice of the Crown of appealing against decisions of the Commissioners of Income Tax and making the taxpayer liable for costs both in the High Court and Court of Appeal, and to a statement by the Chancellor of the Exchequer on the subject. In the course of his speech the noble Lord said: My Lords, I should not presume to detain your Lordships at any great length upon this subject, though it is undeniably important and has attracted a good deal of attention, but I wish to bring before your notice a particular case which I think illustrates as clearly as possible the very great hardship which some taxpayers suffer in consequence of the action of the Government in taking cases from Court to Court.

The case is that of a very worthy man not in a very high grade of society-a professional cricketer. It is the practice amongst the higher grades in that profession that they should receive once in a lifetime-almost invariably it is only once-a benefit provided from the donations of admirers and friends, and more particularly from the gate-money received at some match which is played for the benefit of a particular cricketer. In this case the cricketer to whom I am referring received from the gate-money, after paying the costs, a net amount of 9351. You will understand that this is the reward for a lifetime of service in first-class cricket. It may be after ten years, or twenty years, or even longer, but it is as a rule the one substantial sum which he receives over and beyond his ordinary pay. This particular cricketer received about 9351.

The Crown endeavoured to tax it. He appealed to the Commissioners and the Commissioners discharged the assessment. At the request of the Crown a case was stated to the High Court-it was heard by Mr. Justice Rowlatt-as to whether this sum was a profit derived from his profession within the meaning of Rule 1 of the Rules applicable to Schedule E or, alternatively, whether it should be regarded as a profit or gain within the meaning of Schedule D (1) (b). Mr. Justice Rowlatt* upheld the Commissioners-so that the taxpayer had won in two Courts; before the Commissioners and before the High Court-and dismissed the appeal with costs. Then the Crown proceeded to appeal to the Court of Appeal. It is not the taxpayer who is the litigant in this case; it is the Crown that is the litigant. The appeal was tried before three Judges, two of whom were against the taxpayer, while one was of the same opinion as Mr. Justice Rowlatt. So that up to that point the taxpayer had won his

*Reed (Inspector of Taxes) v.. Seymour (61 L.J., N.C. 346 and 492).

case in two Courts and before two High Court Judges, and lost it in one Court.

This man is now waiting for an opinion from counsel as to whether or not it will be wise to go to the House of Lords. If the advice is that he should not go to the House of Lords, the costs and counsel's fees will come to very nearly half of the capital sum which he has received from his benefit-the capital sum which the Crown is endeavouring to tax. Having won in two Courts out of three, the costs are all given against him-both sides' costs. Mr. Churchill says that in exceptional cases, where a new and important principle is at stake-and this is the first case of the kind attempted by the Income Tax authorities-the practice of the Crown was already, as a matter of grace, to pay the costs of both sides. The Crown have been asked whether it will pay the costs in this case, and they have refused. They have been asked whether they will pay their own costs, and have refused. Therefore the whole of the costs have been thrown upon this unfortunate man.

Supposing he goes to the House of Lords, and supposing he loses there. Practically the whole of the capital sum which they are endeavouring to tax will go in costs. I venture to submit to your Lordships that that is a very grievous case, and that it is not fair that the obligation should be thrown upon the taxpayer of endeavouring to prove what the law means by the words that are used. The Courts are all at loggerheads about it, and it is for the House of Lords to decide what is the meaning of the words. Why should it be thrown upon this unfortunate man to prove what they do mean, at the risk of losing the whole of the capital sum which he has earned after a lifetime of industry and success at his particular profession.

THE LORD CHANCELLOR in the course of his reply, said: I do not think the noble Lord really means to complain of the Crown for appealing against decisions which they think are wrong. It is, of course, their duty to appeal. The decision in a particular case may be a small matter, but it is taken as a precedent and applies not only to a particular taxpayer but to many hundreds or thousands of other people, and in order to protect the general interest of the public the Crown must appeal against a decision which they believe to be wrong.

I think what the noble Lord really complains of is that when the Commissioners of Inland Revenue appeal, and win their appeal, they usually ask for costs against the unsuccessful party, and the Court, in its discretion, usually makes an order for those costs against the unsuccessful party. The suggestion of the noble Lord is that where the Inland Revenue appeals they shall pay the costs of both sides, whether they win or lose. Now, of course, that does not apply to other litigants. It is a very useful check on litigation that people who go to Court and lose their case pay the costs of both sides, and therefore it would not be wise to adopt a different rule as regards appeals by the Inland Revenue. The charges upon other taxpayers would, of course, be exceedingly heavy, and if a taxpayer knew that whatever happened, win or lose, he would get his costs, he would not be likely to be very economical in the way in which he conducted his case. So on general principles I think the noble Lord will not disagree with what I have said.

As to the particular case, of course I know what case it is he refers to, and equally, of course, I am not going to say a word about the merits of the case, because I might have the painful duty of deciding upon those merits in another capacity. I do not hesitate to say that I regret that a charge of this kind should fall upon a professional cricketer. I think, however, that what the Chancellor of the Exchequer said to the deputation was this-that where there was a new case, and a doubtful point, then the Inland Revenue did very often agree to pay the cost of both sides, whatever happened to the appeal, and he said that that practice would be maintained, but, of course, it must be for him or for his advisers to say whether a particular case falls within that rule. What I am told in this case is that the point was really an old one-that it is not a new case, but a mere question of fact, as to whether a particular benefit came within the definition of “income on which tax was payable, and the Inland Revenue did not think they could remit the order for costs in this case.

There is this further observation, that I think that if a taxpayer against whom an appeal is lodged desires to have the mitigation referred to, he ought to ask for it before the appeal comes on, and before large expense is incurred. He ought to say to the Revenue : "Well, you have appealed against a decision of the Commission in which I have an interest. It is a new and doubtful point. Will you pay the costs of both sides whatever the event of the appeal?" and he will get an answer then and there, and know whether he goes on at his own risk. These are observations which I think are justified, and which the noble Lord ought to take into account. I will conclude by saying that I will most willingly bring to