Scrutton L.J. dissenting) reversed this decision, and gave judgment for the respondents for 13,3441., the agreed amount of the damages. MacKinnon K.C. and Raeburn for the appellants. Leck K.C., Dunlop and Sir Robert Aske for the respondents. THE HOUSE (Lord Finlay L.C., Lord Shaw of Dunfermline, Lord Sumner and Lord Wrenbury, Viscount Haldane dissenting), after consideration, reversed the order of the Court of Appeal, and restored the judgment of Rowlatt J. It was held (1) (by all their Lordships) that the doctrine of frustration was not excluded by the terms of the charterparty; (2) (Viscount Haldane dissenting) that the requisition and detention of the vessel by the Government destroyed the identity of the chartered service, and constituted such a vital change of circumstances as to entitle the owners to treat the charterparty as at an end. Solicitors for appellants: Holman, Fenwick & Willan. H. L. (E.) H. B. H. Dec. 16. NEVILLE, APP.; LONDON EXPRESS NEWSPAPER, LIMITED, RESES. et è contra. Maintenance-Action for damages-Competency-Special damage-Success of maintained action. representations of the defendant, the present plaintiff, and ordered the return of the moneys paid by them. In the meantime the plaintiff commenced an action against the defendants for damages for libel and maintenance. This action was tried before Lord Reading C.J. and a special jury after the trial of the Charcery actions. Upon the claim for libel the jury found for the plaintiff and awarded him 3001. damages. Upon the claim for maintenance the jury found that the defendants did not act from motives of charity or in the bona fide belief that the plaintiffs in the Chancery actions had a well-founded claim against the present plaintiff. Lord Reading gave judgment for the plaintiff upon the claim for libel in accordance with the verdict, and upon the findings of the jury on the claim for maintenance he awarded the plaintiff as damages the costs which he had to bear in defending the Chancery actions and the costs which he had to pay the plaintiffs in those actions. The Court of Appeal (Swinfen Eady L.J., Scrutton L.J., and Bray J.), upon motion for a new trial or judgment, held that there was no evidence to support the verdict of the jury upon either head, and ordered a new trial of both claims. The plaintiff now asked that the judgment of Lord Reading should be restored, and the defendants asked that judgment should be entered for them on both claims. Harney for the plaintiff. Sir Ernest Pollock K.C. and Sir Hugh Fraser for the defendants. THE HOUSE (Lord Finlay L.C., Viscount Haldane, Lord Atkinson, Lord Shaw of Dunfermline, and Lord Phillimore), after consideration, unanimously affirmed the order of the Court of Appeal on the question of libel, and, by a majority (Viscount Haldane and Lord Atkinson dissenting), dis Appeal and cross-appeal from an order of the Court of charged the order of the Court of Appeal on the question Appeal: [1917] W. N. 203; [1917] 2 K. B. 564. The plaintiff, when laying out land which he had purchased on the South Coast as a building estate, offered a prize of 1001. for a name for a new South Coast resort. He also offered 50 consolation prizes stated to consist of splendid freehold building plots similar to those offered by the plaintiff at 501. each, subject to a proviso that the winners should pay three guineas for a conveyance of each plot. Each conveyance was contained in a printed form filled up according to the number and description of the plot. The W. was awarded for the name New Anzac-on-Sea. ddition a very large number of consolation prizes were awarded. In of maintenance, and ordered judgment to be entered for the defendants on that head. The Lord Chancellor, Viscount Haldane, and Lord Atkinson (Lord Shaw of Dunfermline and Lord Phillimore dissenting) were of opinion that the offence of maintenance and the right to bring a civil action for maintenance arose independently of the result of the maintained action or defence, and that the success of the maintained actions in this case did not render the action for maintenance incompetent; but the Lord Chancellor, with the concurrence of Lord Shaw of Dunfermline and Lord Phillimore (Viscount Haldane and Lord Atkinson dissenting), was further of opinion that an action for maintenance did not lie in the The defendants published a series of articles in their news- absence of special damage, and that there was not in this paper alleging that the competition was not bona fide, and case any damage to sustain the action. The result was that that the consolation prizes were really sales of land at a judgment should be entered for the defendants on this head. profit, and offering to take legal proceedings at their own The dissentient lords (Viscount Haldane and Lord Atkinerpense, on behalf of all prizewinners who sent in their son) were of opinion that the right to protection against names to the defendants' solicitors, for the recovery of the maintenance was an absolute right, subject to certain wellthree guineas. A large number of persons, who were re-recognised exceptions, and that the plaintiff had a right presented by the defendants' solicitors, joined together in of action against the defendants; but that he was not entwo actions tried by Younger J., who held that the plaintiffs titled to the damages awarded him in the shape of costs vere induced to enter into their contracts by the fraudulent by the Lord Chief Justice, but was entitled to nominal damages only, and that the jury should have been so directed. In their opinion the order of the Court of Appeal was right on both points. Giveen for the defendant contended that the defendant was not estopped by the judgment from showing that the debt was due under the contract of 1910. The ground Wallis v. Duke of Portland, (1797) 3 Ves. 494; (1798) 8 and extent of the estoppel must be found on the face of the Bro. P.C. 161 discussed. Solicitors for plaintiff: Vaughan & Williams. Solicitors for defendants: Carter, Harrison & Armstrong. H. B. H. Supreme Court of Judicature. Emergency legislation-Claim for sum due-Specially indorsed writ-Sum claimed as due on contract made after war-Judgment in default of appearance-Right of defendant to show debt due on contract made before warCourts (Emergency Powers) Act, 1914 (4 & 5 Geo. 5, c. 78), s. 1. Appeal from an order of McCardie J. in chambers. judgment: per FitzGibbon L.J. in Irish Land Commission v. Ryan, [1900] 2 Ir. 565, 572, and the judgment on its face did not show under what contract the debt was due. The dictum of Vaughan Williams J. in In re South American and Mexican Co., [1895] 1 Ch. 37, 45, that a judgment by default raised an estoppel, was criticised by FitzGibbon L.J. and by Holmes L.J. in Irish Land Commission v. Ryan at pp. 574, 585, and was wrong. [Order III., г. 6; Order XIX., r. 13; Howlett v. Turte, (1861) 10 C. B. N. S. 813; and Foakes v. Beer, (1884) 9 App. Cas. 605, were also referred to.] Dummett for the plaintiff was not called upon. THE COURT dismissed the appeal. BANKES L.J. said that in his opinion the decision of McCardie J. was right on this short ground. For the purDec. 16. poses of this action under rules of Court which governed the matter every allegation of fact in a pleading, if not denied, must be taken to be admitted. In the statement of claim contained in the indorsement on the writ the sum of 1321. That allegation for the purposes of the present action must was alleged to be due under an agreement of May 25, 1915. be taken as admitted. If it were necessary he would be prepared to say that the document of May 25, 1915, was upon its face a good agreement made for good consideration, and not a mere acknowledgment of a sum due, because the sum due was settled by agreement and the defendant undertook to pay that sum by instalments. The appeal therefore failed. WARRINGTON and SCRUTTON L.JJ. agreed. Solicitor for plaintiff : Hasties. By a specially indorsed writ, dated July 30, 1918, the plaintiff claimed 1321., the amount owing from the defendant to the plaintiff "under an agreement in writing signed by he defendant, and dated the 25th May, 1915." The indorsement was headed "Statement of claim." The defendant did not enter an appearance, and on August, 24, 1918, judgment was signed against him in default of appearance. The judgment was in this form :-"The 24th day of August, 1918. The defendant Ludvig Freyberger not having appeared to the writ of summons herein, it is this day adjudged that the plaintiff recover against the said defendant 1321. and 51. 8s. costs." On the same day the plaintiff took out a summons under the Courts (Emergency Powers) Acts, 19141917, for leave to proceed to execution on, or otherwise to enforce, the judgment. This application was made because the plaintiff was uncertain whether the defendant had or had not joined His Majesty's Forces: see s. 8 of the Courts (Emergency Powers) Act, 1917 (7 & 8 Geo. 5, c. 25). The defendant gave a counter-notice asking for a stay under the Acts, and filed an affidavit of merits. The defendant sought to show that the debt was due under a contract made in 1910, that is, before the war, and that s. 1 of the Courts (Emergency Powers) Act, 1914, applied; and that the alleged contract of 1915 was merely an acknowledgment of a debt due under the contract of 1910. The judge, affirming the decision of the master, refused to go into the merits, holding that the defendant was estopped by the indorsement on the writ and the judgment by default from asserting that the sum was due under the contract of 1910, and he refused a stay. The defendant appealed. Solicitor for defendant: J. R. Cardew Smith. C.A. W. F. B. Dec. 18. *BALDOCK V. WESTMINSTER CITY COUNCIL. Metropolis Street lighting Negligence Metropolis Management Act, 1855 (19 & 20 Vict. c. 120), ss. 108, 130. Appeal from the decision of a Divisional Court (Lush and Bailhache JJ.), reported [1918] W. N. 339. The plaintiff brought an action in the Westminster County Court against the defendants for damage sustained by his taxi-cab through colliding with the post of a street refuge in Cockspur Street, Westminster. The collision occurred on the evening of March 20, 1917. The night was dark, and an electric lamp on the refuge was not alight. There was evidence that the defendants knew that owing to the lighting restrictions, which caused a great decrease in pressure, street lamps very frequently went out. The jury found that the defendants had been negligent in omitting to provide a danger lamp on the refuge. The deputy county court judge held that there was no evidence that the particular lamp in question had gone out on any previous occasion or that the defendants knew that it was likely to go out, and he entered judgment for the defendants. On appeal the Divisional Court held that there was evidence to go to the jury, and directed judgment to be entered for the plaintiff, giving leave to the defendants to appeal. The defendants appealed. were insured by a policy which covered loss and damage "directly caused by war, bombardment, military or usurped power, or by aerial craft (hostile or otherwise) . . . and fire . . . directly caused by any of the foregoing, whether originating on the premises insured or elsewhere." policy contained a proviso that no claim was to attach for "destruction by the Government of the country in which the property is situated." During the currency of the policy The Courthope Munroe K.C. and Lort-Williams for the ap- certain persons, styling themselves a Provisional Governpellants. Thorn Drury K.C. and H. Brandon for the respondent. THE COURT (Bankes, Warrington and Scrutton L.JJ.), without calling upon counsel for the respondent, dismissed the appeal. BANKES L.J. The appellants, by s. 130 of the Metropolis Management Act, 1855, are under a duty to light the streets in their district, and by s. 108 they are empowered to make and erect street refuges. These enactments impose upon them a general duty to provide sufficient light to indicate the position of such an obstruction as a refuge. Lush J., in his judgment, expressed a doubt whether a jury could interfere with the discretion of the local authority as to the amount of light which the authority might think necessary for that purpose. Before deciding that point I should require to hear further argument. It is not necessary to decide it now. The restrictions laid upon street lighting by the Defence of the Realm Acts might perhaps have enabled the local authority to extinguish all the street lamps without incurring liability. In this case, however, the authority continued to light all those refuges which were provided with lights; they thereby imposed upon themselves a duty not to set traps for the public. By continuing to light these refuges they represented that where there was no light there was no refuge. If it came to their knowledge that some of the lights were untrustworthy they were providing something like a trap. It was, or might have been, known to them that this particular lamp was untrustworthy. The jury might take the view that an additional lamp or a sufficient watch ought to have been provided, and that the appellants were wanting in their duty as to this lamp on the night in question. WARRINGTON and SCRUTTON L.JJ. concurred. Solicitors for appellants: Allen & Son. Solicitor for respondent: Edmund O'Connor. ment, proclaimed an Irish Republic, and occupied with armed forces the General Post Office and other public buildings in Dublin. The General Post Office was bombarded by the military forces of the Crown with shell, and as a result it caught fire. The conflagration spread and destroyed the plaintiffs' premises and their contents. In an action on the policy Roche J. held that the plaintiffs' loss was caused, not by a mere riot or civil commotion, but by civil strife amounting to warfare; that the policy covered loss from fire caused by a bombardment carried on by the forces of the Crown; that the proviso only applied to the intentional destruction of property by the Government; and that the plaintiffs' loss was, therefore, recoverable under the policy. The defendant appealed. MacKinnon K.C., Douglas Hogg K.C. and Patrick Hastings for the defendant. Leslie Scott K.C., Greer K.C. and R. R. Smylie for the plaintiffs were only called upon on the question of amount. THE COURT (Bankes, Warrington and Scrutton L.JJ.) affirmed the judgment of Roche J. and dismissed the appeal, subject, however, to a reduction in amount. Solicitors for plaintiffs: Ranger, Burton & Frost. W. F. B. High Court of Justice. three lads to-night," mentioning their names, The Deputy Chairman, in summing up, told the jury that the boys were the accomplices of the appellant, and warned the jury as to the danger of accepting the uncorroborated evidence of an accomplice; but he pointed out that the jury were entitled to consider whether the fact that the appellant had made no reply to the specific charges made against him by the constable was not some corroboration of the evidence given by three of the boys. an "article" within the meaning of Regulation 2 F. of the Defence of the Realm Regulations: see Hinde v. Allmond, [1918] W. N. 150; (2) that the Order did not fix a minimum price for the sale and purchase of tea by retail; (3) that it was ultra vires the Food Controller to fix one price as both the maximum and minimum price. The Tea (Retail Prices) Order, 1918, art. 2 (a): “The price on the occasion of any retail sale of tea shall be at such rate as the Food Controller may from time to time prescribe by notice under this Order either generally or for any class of tea. (b) Until further notice the price for every class of tea shall be at the rate of 2s. 8d. per lb. . . ." "5. A person shall not on the occasion of any retail sale sell or offer or expose for sale . . . any tea at a price other than the price for the time being prescribed by or The appellant was convicted, and sentenced to four years' under this Order." penal servitude. Keeves for the appellant contended that the appellant's failure to reply when charged was no corroboration of the accomplices' evidence: Rex v. Tate, [1908] 2 K. B. 680: Reg. v. Cramp, (1880) 14 Cox, C. C. 390. E. P. Clarke (Roland Oliver with him) for the Crown Solicitors for appellant: G. B. Howard & Son. *SAINSBURY, APP. v. SAUNDers, Resp. Emergency legislation-Food-Tea-Selling below minimum price-Tea (Retail Prices) Order, 1918, arts. 2, 5-New Ministries and Secretaries Act, 1916 (6 & 7 Geo. 5, c. 68), s. 4-Defence of the Realm Regulations, 2 F. Case stated by Croydon justices. An information was preferred by the respondent against the appellant under the Tea (Retail Prices) Order, 1918, No. 506, dated May 4, 1918, made by the Food Controller under the Defence of the Realm Regulations, for having, on May 14, 1918, by the hand of his servant, unlawfully sold a half-pound of tea at a price of 1s. 3d., being at the rate of 2s. 6d. per lb., contrary to the provisions of the said Order. The appellant was aware of the Order at the date of the alleged offence. The appellant contended (1) that the Order was ultra vires the Food Controller on the ground that tea was not a food or The justices were of opinion (1) that the offence charged had been committed; (2) that the Order fixed 2s. 8d. per lb. as a minimum price below which tea might not be sold by retail; and (3) that the Order was intra vires the Food Controller. They accordingly convicted the appellant. Upjohn K.C., Sir Edward Marshall Hall K.C. and Ricardo for the appellant. Cyril Atkinson K.C., Harold Smith and Clement Davies for the respondent. THE COURT (Darling, Avory and Salter JJ.) dismissed the appeal. 66 DARLING J. said that the decision in Hinde v. Allmond, [1918] W. N. 150, did not conclude the matter, nor did that decision conflict with the decision of the Court in the present case. In that case the accused was charged with offending against the Food Hoarding Order by acquiring and hoarding a certain article of food, to wit, tea. That Order merely used the expression "article of food," and gave no indication that tea was intended to be included, and the Court held that ordering a person not to acquire any article of food was not a proper way to order a person not to hoard tea. If, however, that Order had said that a person should not acquire the article called tea beyond a certain amount, it would have been unobjectionable. The present case turned upon s. 4 of the New Ministries and Secretaries Act, 1916, which provided: 'It shall be the duty of the Food Controller to regulate the supply and consumption of food in such manner as he thinks best for maintaining a proper supply of food, and to take such steps as he thinks best for encouraging the production of food, and for those purposes he shall have such powers or duties of any Government department or authority, whether conferred by Statute or otherwise, as His Majesty may, by Order in Council, transfer to him . . . and also such further powers as may be conferred on him by regulations under the Defence of the Realm Consolidation Act, 1914." It was said that that section did not give the Food Controller power to deal with tea, because tea was not a food, but that was putting too narrow a construction upon the Statute. Regulation 2 F. provided that "the Food Controller may make Orders regulating or giving directions with respect to the production, manufacture, treatment, use, consumption, transport, storage, distribution, supply, sale or purchase of, or other dealing in, or measures to be taken in relation to any article (including Orders providing for the fixing of maximum and minimum price) where it appears to him necessary or expedient to make any such Order for the purpose of encouraging or maintaining the food supply of the country." In his opinion the Food Controller's powers were not limited to making an Order dealing directly with any particular named food; he was entitled to encourage and maintain the food supply of the country by indirect means; for example, he had made an Order with respect to sacks which had to do with the distribution of food, and he might have made a similar Order with regard to tin cans in which food might be imported or distributed. Nobody could contend that these things were articles of food; he would, in fact, be regularising the distribution and the maintenance of the food supply by making regulations regarding the articles in which the food was to be distributed. Further, if he wanted to regulate the price of a food he need not make an Order dealing with that particular kind of food. It was not necessary to understand the reason why the Food Controller made the Tea (Retail Prices) Order, but if he thought that it would regularise the distribution of tea it was within his powers to make the Order. That Order specifically referred to tea, and did not merely say the price of food should be so much. It was true that tea was not a food but merely a stimulant, but the Food Controller might very well think that if people were unable to have tea they might make greater inroads upon the food supply of the country. For the same reason the Food Controller might limit or prohibit the use of appetisers taken for the purpose of increasing a person's appetite so long as he did not call it food, but by its proper name. Food Controller's power was not limited to fixing the maximum and minimum prices for the sale of any article; he had power to make Orders regulating the sale of any article, including Orders providing for the fixing of maximum and minimum prices, and in his opinion the Food Controller could fix the price at which tea must be sold. SALTER J. said that tea, although not a food within the definition in the Food Hoarding Order, was, in his opinion, a food within the meaning of the expressions "the food supply of the country" and "supply and consumption of food" in ss. 3 and 4 of the Act of 1916. But even if tea was not a food, still Regulation 2 F. gave the Food Controller power to regulate the sale of any article where it appeared to him necessary or expedient to make an Order for the purpose of encouraging or maintaining the food supply of the country. He saw no warrant for reading the words "of food" after the words " any article as the appellant wished to do. The "article of food" expression was used in the regulations when dealing with articles of food. In his opinion Regulation 2 F. was not ultra vires, and it gave the Food Controller power to regulate not merely actual articles of food but also to regulate the sale of any other article provided, in his opinion, such Order would conduce to the proper supply and production of food. Appeal dismissed. Solicitors for appellant: White & Leonard. Motor car-Use of petrol for purpose not authorised by Motor Spirit (Consolidation) and Gas Restriction Order, 1918-Conviction-Endorsement of licence-" Offence in connection with the driving of a motor car"-Motor Car Act, 1903 (3 Edw. 7, c. 36), s. 4. Case stated by Surrey justices sitting at Farnham. AVORY J. said that the appellant's contention that the Food Controller's power was limited to making Orders relat- K. B. D. ing to articles of food as defined in Hinde v. Allmond (supra) was not correct. The Food Controller was appointed under 8. 3 of the New Ministries and Secretaries Act, 1916, "for the purpose of economising and maintaining the food supply of the country." In his opinion the expression "food supply of the country" had a wider meaning than the expression article of food" as used in the Food Hoarding Order. The Food Controller's duty, as defined in s. 4 of the Act, was "to regulate the supply and consumption of food in such manner as he thinks best for maintaining a proper supply of food." The expression "supply and consumption of food" had a wider meaning than "article of food" as used in the Food Hoarding Order, and he was prepared to hold that tea came within the term "food" as used in the Statute and in Regulation 2 F. But even if tea was not food in the strict sense, he could not accept the contention that the Food Controller could not indirectly regulate the sale of an article which was not food. The power given to the Food Controller Regulation 2 F. was to make an Order regulating the sale of "any article ”—not limited to an article of food-where it appeared to him necessary or expedient for the purpose of maintaining the food supply of the country. If it appeared to the Food Controller necessary or expedient to make an Order that tea should not be sold except at a certain price, the Court had no power to override his Order or to express any opinion whether it was expedient or necessary. The The respondent was on August 1, 1918, convicted before a court of summary jurisdiction at Farnham of having, in driving a motor car, used petrol for a purpose not authorised by the Motor Spirit (Consolidation) and Gas Restriction Order, 1918. That order, by par. 2, provides that: "Save as hereinafter expressly authorised no person shall use or cause or permit to be used any petrol . . . for any purpose whatsoever." The respondent was the holder of a motor car licence. By s. 4, sub-s. (1) of the Motor Car Act, 1903: "Any Court before whom a person is convicted . . . of any offence in connection with the driving of a motor car . . . (c) if the person convicted holds any licence under this Act shall cause particulars of the conviction and of any order of the Court made under this section to be endorsed upon any licence held by him"; and by sub-s. (2), "Any person so convicted who holds a licence under the Act and fails to produce it within a reasonable time for endorsement is to be guilty of an offence." The respondent having neglected to |