C. A. W. H. G. Nov. 15, 19, 20. JONES v. LEWIS AND OTHERS. Local government-Assistant overseer-Nomination by vestry-Appointment by justices-Increase of salary-No nomination-Validity of appointment-Poor Relief Act, 1819 (59 Geo. 3, c. 12), s. 7-Local Government Act, 1894 (56 & 57 Vict. c. 73), s. 33. The appeal was therefore allowed, and the judgment of the Eglwysilan in vestry passed a resolution increasing county court judge restored. the plaintiff's yearly salary by 15l. per annum, and on August 17, 1906, two justices executed a warrant Solicitors for appellant: C. P. Fielder, Le Riche & Co., for which, after reciting that the inhabitants had nominated Biscoe-Smith & Co., Portsmouth. and elected the plaintiff to be assistant overseer, and had fixed his yearly salary at 2001., went on to Solicitors for respondent: James, Mellor & Co., for E. J. appoint the plaintiff to be assistant overseer, and to receive Bechervaise, Portsmouth. the salary fixed by the inhabitants. The overseers of the parish having refused to pay the increased salary, the plaintiff on October 29, 1906, brought an action which was tried before Bray J. at Cardiff in March, 1907. The learned judge gave judgment for the defendants, holding that the plaintiff was only entitled to salary at the rate of 851. a year. On September 19, 1912, the inhabitants in vestry resolved that the plaintiff should be paid a yearly salary of 2501., and on October 1, 1912, two justices executed a warrant reciting that the plaintiff had been duly nominated and elected by the inhabitants to be assistant overseer, and that the inhabitants had fixed his yearly salary at 2501., and proceeding to appoint the plaintiff at the yearly salary so fixed. At the yearly audit of the accounts of the parish for the year ending March 31, 1913, objections were taken to the payments of the increased salary. The auditor allowed the full salary, and the objectors appealed to the Local Government Board, who deferred giving any decision, but made an order dated October 18, 1915, substituting for article 6 of their former order of June 2, 1896, the following: "Article 6—(1) Nothing in this order shall (a) apply to the revocation of the appointment of any person now holding office as assistant overseer in any parish to which this order extends; (b); preclude any such person as aforesaid, in the event of his ceasing to hold the said office, from being reappointed to such office as if this order had not been made. (2) Every person holding office, or reappointed as aforesaid, shall hold office by the same tenure and upon the same terms and conditions as would, if this order had not been made, have attached to his holding of the said office, whether on any appointment subsisting at the date of this order or on any appointment made thereafter." On November 2, 1916, the inhabitants again passed a resolution that the plaintiff should be paid the yearly salary of 2501., and on November 3, 1916, two justices issued a warrant reciting and appointing in terms similar to those in the warrant of October 1, 1912. Appeal from the judgment of Lush J. reported [1918] 2 K. B. 781. By s. 7 of the Poor Relief Act, 1819, it shall be lawful for the inhabitants of any parish in vestry assembled to nominate and elect any discreet person to be assistant overseer of the poor of such parish, and to determine and specify the duties to be by him executed and performed, and to fix such yearly salary as shall be thought fit; and it shall be lawful for any two of His Majesty's justices of the peace by warrant to appoint any person who shall be so nominated and elected to be assistant overseer for such purposes and with such salary as shall have been fixed by the inhabitants in vestry; and every person to be so appointed assistant overseer is authorised and empowered to execute the duties of an overseer of the poor, and every person so appointed shall continue to be an assistant overseer of the poor until he shall resign or until his appointment shall be revoked by the inhabitants in vestry assembled, and no longer. In the year 1894 the plaintiff was duly appointed assistant overseer of the poor of the parish of Eglwysilan, in the urban district of Caerphilly, at a yearly salary, in the events which happened, of 851. By an order of June 2, 1896, the Local Government Board, acting under s. 33, sub-s. 1, of the Local Government Act, 1894, transferred to the urban district council of Caerphilly the power of appointing and, subject as mentioned in article 6 of the order, of revoking the appointment of any assistant overseer for each parish wholly comprised within the urban district. Article 6 provided that "nothing in this order shall apply to the revoking of the appointment of any person now holding office as assistant overseer in any parish to which this order extends, nor, without his consent, to his reappointment, and every such assistant overseer shall continue to hold office upon the same terms as at present." On September 14, 1905, the inhabitants of the parish of warrants of October 1, 1912, and November 3, 1916, were invalid, inasmuch as the inhabitants had not in fact purported to nominate or appoint the respondent, but had purported to increase his salary without nominating or appointing him, which s. 7 of the Poor Relief Act, 1819, gave them no power to do. The appeal was therefore allowed. Solicitors for appellants: Wrentmore & Son, for Spickett & Sons, Pontypridd. receiver before notice of the act of bankruptcy. As to the Clayton K.C. and E. W. Hansell for the appellant relied on In re Dickinson, (1888) 22 Q. B. D. 187, and In re Potts, [1893] 1 Q. B. 648. Cunliffe K.C. and Pattisson for the respondent referred to Solicitors for respondent: Smith, Rundell, Dods & Bockett, Levasseur v. Mason and Barry, [1891] 2 Q. B. 73. for Morgan Bruce & Nicholas, Pontypridd. W. H. G. THE COURT (Swinfen Eady M.R., Duke L.J. and Eve J.) allowed the appeal. They held that the orders of December 23, 1915, and March 22, 1916, did not constitute the plaintiff a secured creditor. The orders did not direct that the sums received by the receiver should be paid and applied in satisfaction of the judgment creditor's debt. Nor did they create in favour of the creditor a "" mortgage charge or lien on the property of the debtor as a security for a debt " due to her from the debtor within s. 167 of the Bankruptcy Act, 1914. Dec. 6. In In re Potts, [1893] 1 Q. B. 648, Lord Esher, at p. 659, said that "an order appointing a receiver can only amount to a charge if it charges the person in whose hands the money is not to deal with it except in one way," i.e., to pay it or hold it for the execution creditor. The orders in this case came nowhere near that. Under them the fund was to be held at the disposal of the Court. The Court had full discretion over the fund, and before any order was made giving the execution creditor any right to any part of it bankruptcy had supervened. In Levasseur v. Mason and Barry, [1891] 2 Q. B. 73, there was no question of an English bankruptcy, and that case did not apply. Er parte THE OFFICIAL RECEIVER, THE TRUSTEE. Bankruptcy-"Secured creditor "-Judgment creditorEquitable execution—Appointment of receiver-Bankruptcy Act, 1914 (4 & 5 Geo. 5, c. 59), ss. 7, 167. Appeal from an order of Horridge J. The debtor was adjudicated bankrupt on May 8, 1918, upon an act of bankruptcy committed on January 25, 1918. On September 4, 1915, his wife had obtained judgment against him in an action for money lent amounting to 6161. 14s. On December 23, 1915, an order was made in the action appointing a receiver of the defendant's interest in an hotel of which he was lessee, and the furniture and effects therein and the business and goodwill thereof. Under the order the receiver was to apply the profits received by him in carrying on the business through the existing manager, (a) in payment of the rent, insurances and manager's bonus; (b) in payment of the rent of the debtor's flat and offices; (c) in payment of certain bills for furniture; (d) in payment to the debtor of 31. a week for his subsistence; and (e) in making such further payments as may hereafter be directed; and the receiver was to "retain the balance of the said profits to be applied in discharge of the debt and costs due to the plaintiff as and when they may be hereafter ordered." On March 22, 1916, a further order was made varying the previous order in certain respects, and directing that the receiver might be at liberty to accumulate the balance of profits to form a fund out of which the judgment creditor might be paid her debt and costs. The question raised in the bankruptcy was whether the orders of December 23, 1915, and March 22, 1916, constituted the plaintiff a "secured creditor" within s. 167 of the Bankruptcy Act, 1914, so that a sum of money in the hands of the receiver representing profits of the business belonged to her, or whether it belonged to the Trustee in Bankruptcy. Horridge J. held that the plaintiff was a secured creditor in respect of so much of the fund as was received by the New trial-Verdict against evidence-Excessive damages. Application by the defendants for a new trial. The action was tried before M'Cardie J. and a common jury. The decision of the learned judge upon a point not under appeal is reported [1918] W. N. 256; [1918] 2 K. B. 539. As to the present application, the plaintiff, a music-hall artiste, claimed damages for a breach by the defendants of an agreement whereby they engaged her to perform at the Victoria Palace for the week beginnin March 12, 1917, and for other specified periods durin years 1917 to 1920. She alleged that the defendant wrongfully determined her engagement in June, 1917, and February, 1915, and in 1916 the plaintiffs obtained an she claimed damages for loss of salary. The defendants order for the administration of his estate and of the trusts alleged that the plaintiff had refused to perform on March of his will, including an inquiry whether certain 12, 1917, and had absented herself from the theatre on that chattels, comprising old oak furniture, arms and armour, date on the ground of illness without immediately sending belonged to the plaintiff R. Stoneham or formed part of the to the defendants a medical certificate informing them of testator's estate at the time of his death. The Master by the nature of the illness and of the plaintiff's inability to his certificate, in answer to the inquiry, found that the appear; and that, on her refusal to perform, the contract chattels belonged to R. Stoneham. Thereupon F. Stoneham had been cancelled by both parties. The jury answered took out a summons to vary the certificate by finding questions put by the learned judge as follows: (1) Did the that the chattels belonged to the testator at the time of his parties agree to cancel the whole of the contract on March death. The testator owned two residences, one at Brighton, 12? No. (2) Did the plaintiff send immediately to the and the other, known as "Beredens," in Essex, and the defendants a medical certificate stating the nature of the chattels in question originally belonged to the testator and illness and her inability to appear?-Yes. (3) Did the were kept by him at "Beredens." In 1910 R. Stoneham, defendants determine the contract in a reasonable time after who was a grandson of the testator, went with his family March 12? No. They found a verdict for 100l. to reside at " Beredens," and continued to reside there. He did this at the request of the testator, who spent the greater part of each year at Brighton, but generally visited "Beredens" during some part of each summer. R. Stoneham alleged that in the spring of 1913 the testator, when at "Bere The defendants applied for a new trial on the grounds that the verdict was against the weight of the evidence, and that the damages were excessive. McCall K.C. and Trickett (for Beyfus, serving with His dens," verbally gave him the chattels, which had remained in Majesty's forces) for the defendants. his possession ever since. He also relied on his appointment as executor and on a clause in the will whereby the testator J. B. Matthews K.C. and E. Lionel Benson (E. F. Lever confirmed the gift that he had made to his grandson, Robert with them) for the plaintiff. In re STONEHAM. Nov. 22; Dec. 4. Administration-Gift of chattels inter vivos-Chattels in possession of intended donee-Parol gift by donor Whether the property passed-Donee appointed executor Confirmation by will. Stoneham, "of the furniture and effects in his possession at 'Beredens'." The defendant F. Stoneham alleged that the clause in the will referred to other chattels which the testator had given to R. Stoneham in 1911, and relied on certain acts of the testator after the date of the will in relation to the chattels in question as tending to negative any gift of them to R. Stoneham. Sir J. G. Butcher K.C. and MacSwinney for F. Stoneham contended that on the evidence there had been no gift of the chattels; and secondly, that if there had been a parol gift in 1913, it did not pass the property in the chattels, because it was not accompanied or followed by delivery, nor by any change in the possession of the chattels : Cochrane v. Moore. (1890) 25 Q. B. D. 57. Hon. F. Russell K.C. and H. Freeman for R. Stoneham argued that on the evidence there was a good gift of the chattels in 1913; and secondly, that as the chattels were already in the possession of R. Stoneham at the time when the gift was made, a further delivery or change of possession was unnecessary: Cain v. Moon, [1896] 2 Q. B. 283. Jenkins K.C. and H. Freeman for the independent executors. Ward Coldridge K.C. (K. Preedy with him) and Owen Thompson for parties interested in the estate. Dec. 4. P. O. LAWRENCE J., in a considered judgment, held on the evidence that the testator gave the chattels to R. Stoneham in the spring of 1913. On the point of law his Lordship held that where chattels capable of delivery were already in the possession of the intended donee at the time of the parol gift, no further act of delivery was The defendant F. Stone- necessary in order to pass the property. The foundation of the rule in Cochrane v. Moore, (1890) 25 Q. B. D. 57, was The plaintiffs were three of the four executors of a will dated July 3, 1914. ham was the fourth executor. The testator died in that, in order to constitute a perfect gift by parol of chattels capable of delivery, the donee must have had the chattels delivered into his possession by the donor or by some one on d his behalf. In principle there was no distinction between para delivery antecedently to the gift and a delivery conMas currently with, or subsequently to, the gift; nor was there that any reason or principle why the rule should not apply where the chattels had been delivered to the donee before the gift, as bailee or in any other capacity, so long as they were actually in his possession at the time of the gift to the knowledge of Br the donor. Lastly, even if the gift in 1913 was incomplete, the confirmation of the gift by the will and the appointment of R. Stoneham as executor made the gift complete. Award stated by an arbitrator in the form of a special case. A policy of insurance was entered into by Messrs. John Holman and Sons, Limited, agents for the owner of the 6.5. Nefeli, with the assurers, the Merchants Marine InsurAce Company, Limited. The Nefeli was insured by ordinary policies for 39,0001., and was therein valued at the same The total amount insured by the policy with the asurers was 1,8551., and was declared to be upon increased Tale of hull, machinery, etc. During the time covered by the policies salvage services were rendered to the Nefeli, and te amount of salvage and costs payable was 12,8321. 17s. 3d. The value of the Nefeli as adopted in the salvage action was EO, and the proportion of the salvage award borne by the ordinary policies was 8,0721, 5s. 8d., leaving a balance of A 11s. 7d. as the excess liability attaching to the owner reason of the Nefeli's being valued for salvage at more the insured valuation. A similar situation arose with regard to certain general age expenditure, which was as follows:-During the ecovered by the policies there was general average exiture in which the contributory value of the Nefeli was 7. The ship's proportion of the expenditure on her butory value was 1881. 128. 10d., and the proportion by the ordinary policies was 1381. 15s., leaving a balance 4. 178. 10d. as the excess liability attaching to the shiper, as the contributory value of the Nefeli was more than insured valuation. ** question in dispute between the parties was as to the basis on which the assurers were liable to contribute to this excess. By the policy it was provided that "the said company will pay and make good all such losses and damages hereinafter expressed as may happen to the subject-matter of thipolicy and may attach to this policy in respect of the sum of 1,855l. hereby insured, which insurance is hereby declared to be upon increased value of hull, machinery. . . .' A written clause in the body of the policy provided that "This insurance is against the risks of total, constructive or compromised total, loss as settled on hull and machinery policies, but including as per clause attached liability for general average, salvage charges, sue and labour expenses or claims under the running down clause in excess of the declared value in hull and machinery policies." A slip attached to the policy contained the clause: "This insurance is hereby declared and agreed to be against the risks of total, constructive or compromised total, loss as may be settled on hull and machinery policies, and is to include also any liability which may attach to the shipowners in consequence of the hull and machinery being valued for contribution to general average or salvage charges at more than the insured valuation, also for any liability in excess of the valuation of 39,0007. in hull and machinery policies for claims under the collision clause therein." MacKinnon K.C. and Jowitt for the shipowner contended that the policy was a contract of indemnity up to 1,8551., and that therefore he was entitled to recover the whole sum. This was not an ordinary policy of marine insurance under which the assurers would be liable to pay in proportion as the amount insured stood to the amount at risk, but it was a policy of indemnity, or, at any rate, it was partly one and partly the other, and the written clause in the body of the policy was an indemnity clause: Joyce v. Kennard, (1871) L. R. 7 Q. B. 78; Cunard Steamship Co. v. Marten, [1902] 2 K. B. 624 ; [1903] 2 K. B. 511. R. A. Wright K.C. and Le Quesne for the assurers contended that the basis on which the assurers were liable to contribute to the excess was that they should pay a part thereof in the proportion that the amount insured by them bears to the total excess contributory value of the Nefeli. The arbitrator had upheld the assurers' contention. Cur. adv. vult. Dec. 9. SANKEY J. upheld the award of the arbitrator. The cases cited on behalf of the shipowner were exceptional instances of an insurance against liability, the ordinary rule in marine policies being that the assurer was entitled to prove that part only of the subject-matter of the policy was covered and to limit his payment proportionately. In the present case the contract started by being a policy upon the res. described as "increased value of hull, machinery, etc.," and the policy was designated both in the body of the document and upon a slip attached as being "against the risk of total constructive or compromised total loss as settled on hull and machinery policies." It was true that it went on to include liability for general average, salvage charges, etc. But that addition did not convert the policy on the res into a policy "against liability," nor could the addition be construed in itself as a policy against liability. It was merely ancillary to the main purpose of the policy, and for the preservation of the res against the contemplated perils. The policy was one of the usual marine policies upon a res with the ordinary ancillary clauses, and not one of the unusual policies against a liability, and the award of the arbitrator was right and must be upheld. Award affirmed. Solicitors for shipowner: Holman, Fenwick & Willan. Solicitors for assurers: Waltons & Co. K. B. D. *TYRRELL, APP. v. COLE, RESP. J. E. A. Dec. 12. There was, therefore, no evidence before the justices of any "direction" of the Food Controller. Snagge for the respondent. THE COURT (Darling, Avory and Salter JJ.) allowed the appeal. DARLING J. said that the objection taken on behalf of the appellant was fatal. The information was based on an allegation that the appellant had committed an offence in disregarding a "direction" of the Food Controller. A printed leaflet marked "D. F. D. 3" and called "Instructions to Wholesalers" was produced before the justices. It was not proved by whom it had been printed or that it had been issued by the Food Controller. There was nothing to show that it had not been printed and issued by some member of the public. The proper method of proving that the Food Controller had issued a "direction" was to follow the procedure prescribed by the Documentary Evidence Act, 1868. The proceedings were bad from beginning to end, and violated the prescriptive rights of the subject. Solicitors for appellant: Lovell, Son & Pitfield for Emergency legislation-Food-Food Controller-Direction- A. H. Franklin, Oxford. Proof-Documentary Evidence Act, 1868 (31 & 32 Vict. c. 37), s. 2. Case stated by justices of Oxfordshire. An information was preferred by the respondent charging the appellant with having sold dates at a price exceeding the full price allowed by a "direction" issued by the Food Controller under the Dried Fruits (Distribution) Order, 1918 (Statutory Rules and Order, 1918, No. 355). By par. 2 (b) of that order: "The Food Controller may from time to time issue directions relating to the . . . sale. . . of any dried fruits or as to the price and terms upon which dried fruits may be sold." Par. 6: "Any . . . direction purporting to be given pursuant to this order or headed Dried Fruits (Distribution) Order, 1918, shall, unless the contrary be proved, be deemed to be prescribed or given pursuant to this order." At the hearing before the justices the respondent tendered in evidence a printed leaflet marked “D. F. D. 3" headed "Dried Fruits (Distribution) Order," and purporting to be "instructions issued by the Food Controller to wholesale dealers as to the price at which dried fruits might be sold. On behalf of the appellant it was contended that the production of this leaflet was not proof of a "direction" of the Food Controller. The justices overruled the objection, and convicted the appellant, and ordered him to pay a fine of 191. 16s. and 5l. 4s. costs. Giveen for the appellant contended (inter alia) that par. 6 of the Dried Fruits (Distribution) Order, 1918, was ultra vires. It purported to overrule the common law and the statutory rules of evidence. By s. 11, sub-s. 4 of the New Ministries and Secretaries Act, 1916, the Documentary Evidence Act, 1868, as amended by the Documentary Evidence Act, 1882, applied to the Food Controller. A "direction " of the Food Controller could only be proved in evidence in one of the ways prescribed by the Acts of 1868 and 1882. Solicitor for respondent: E. P. Lickfold. *COTMAN, APP. v. CARR, WHITE & Co., LTD., RESPS. Emergency legislation-Food-Sale-Condition relating to "any other article "-Article of same description-Food (Conditions of Sale) Order, 1917. Case stated by Cumberland justices. An information was preferred by the appellant, an assistant Food Commissioner, against the respondents, preserve manufacturers at Wigton, for that the respondents on April 5, 1918, in connection with the proposed sale of an article of food-namely, preserves-attempted to impose a condition relating to the purchase of another article of foodnamely, preserves-for a period of five consecutive years after the war, in contravention of the Food (Conditions of Sale) Order, 1917. The respondents carried on business as preserve manufacturers. On April 4, 1918, the Clyde Bank Co-operative Society wrote to the respondents asking if there was a possibility of getting part of their trade supplies from the respondents for the season 1918-19. The respondents replied that if the Co-operative Society would sign an agreement which they enclosed the respondents would be able to send to the Society some consignments of preserves. The agreement was as follows: "In consideration of our agreeing to supply you with preserves as we allot to you, and which you accept |