CRIMINAL LAW-continued.

2.

Sale of Intoxicating Liquors to
Children-Sale by Servant contrary to Instruc-
tions of Licensee—“ Knowingly allows any Person
to Sell"-Intoxicating Liquors (Sale to Children) |
Act, 1901 (1 Edw. 7, c. 27), 8. 2.

By s. 2 of the Intoxicating Liquors (Sale to
Children) Act, 1901, "every holder of a licence
who knowingly sells or delivers, or allows any
person to sell or deliver, save at the residence or
working place of the purchaser, any description of
intoxicating liquor to any person under the age
of fourteen years for consumption by any person
on or off the premises, excepting such intoxi-
cating liquors as are sold or delivered in corked
and sealed vessels in quantities not less than one
reputed pint for consumption off the premises
only," is made liable to penalties.

Intoxicating liquor was knowingly sold to a
child under fourteen in a bottle neither corked
nor sealed by a servant of a licensed person
contrary to the express orders and without the
knowledge of his master, who was himself in
charge of the premises at the time of the sale: -

Held, that the licence-holder could not be
convicted under s. 2 of "knowingly allowing" a
person to sell intoxicating liquor to a child under
fourteen in a vessel neither corked nor sealed.
EMARY V. NOLLOTH
. Div. Ct. 264
CROWN-Arrest of debtor-Forfeiture of bond-
Form of bond

-

See BANKRUPTCY. 1.

164

See SOLICITOR. 2.

300

DISENTAILING DEED-Succession duty-Suc-

cession derived from alienee
See REVENUE.

6.

-

71

DISQUALIFICATION-Councillor -Bankruptcy
-Quo warranto
See CORPORATION.

-

693

See CRIMINAL LAW. 1.

714

distrained

See LANDLORD AND TENANT. 1.

See POOR LAW. 1.

168

627

714

DOG-Shooting at-Malicious injury to property
See CRIMINAL LAW. 1.

EMPLOYER AND WORKMAN-continued.
the Workmen's Compensation Act, 1897, the
burden is upon the applicant of giving evidence
to shew that the accident arose "out of" as well
as "in the course of " the employment of the
injured workman. Although the fact that the
accident happened in the course of the employ-
ment may be admitted, that burden is not dis-
charged if the manner in which the accident
happened is left wholly unexplained, and if the
evidence is equally consistent with the view that
it happened in consequence of something which
did not arise out of the employment.

Wakelin v. London and South Western Ry. Co,.
(1886) 12 App. Cas. 41, considered and applied.
POMFRET V. LANCASHIRE AND YORKSHIRE RAILWAY
COMPANY
C. A. 718

2. Compensation Earnings - Railway
Guard-Lodging Allowance-Workmen's Compen
sation Act, 1897 (60 & 61 Vict. c. 37), 1st Schedule,
(1), (a), (i).

A railway guard, in the course of his duty,
had frequently to lodge away from home, and on
these occasions he was entitled to be paid, in
addition to his ordinary wages, certain fixed sums,
under the name of lodging allowances. The
object of the allowances was to cover out of pocket
expenses, to which he was put by having to sleep
away from home, and the amount of the allow-
ances was about equal to the cost of board and
lodging for the time covered by the allowances.
No inquiry was made by the railway company as
to the actual expense incurred by the guard, and
there was no evidence as to profit being actually
made by him out of the allowances. On an
appeal against an award of compensation under
the Workmen's Compensation Act:-

Held, that, in estimating the earnings of the
guard, the amount of the lodging allowances was
properly taken into account, without regard to
the question whether any profit was made out of
them. SHARPE V. MIDLAND RAILWAY COMPANY

C. A. 26

3. Practice "Proceeding" against Em-
ployer-Action against Third Person-" Option,"
Exercise of Payments by Employer-Receipts
"without Prejudice "-Workman-Personal In-
jury-Compensation-Damages-Workmen's Com-
pensation Act, 1897 (60 & 61 Vict. c. 37), s. 6.

Where, as between an employer and his work-
man who has received personal injuries in the
course of his employment, there is a payment of
money to and a receipt given by the workman
under the Workmen's Compensation Act, 1897,
and the receipt is not qualified either in terms or
by a consideration of the surrounding circum-
stances, that is sufficient to bring the case within
the operation of s. 6, and to put the workman in
the position of having exercised the option given
him by the section-of proceeding, either at law
for damages against the person legally liable for
the injury, or against the employer for compen-
sation under the Act, but not against both-and
so to preclude him from suing the person legally
liable.

Semble, per Romer L.J.: Proceedings by a
workman against his employer, under s. 6, for
compensation for personal injuries, should not be
held to irrevocably bind the workman in the

EMPLOYER AND WORKMAN-continued.
exercise of the option given him by the section
unless they have resulted in some compensation,
as such, being paid to and received by the work-
man in such a manner as to bind both parties.

A workman, who had been injured in the
course of his employment, gave notice of his injury
to his employer, but without formally claiming
compensation. The employer, by an agent, then
made a first weekly payment, for which the work-
man, who was then in hospital, signed a receipt
stating that the sum paid had been received “on
account of compensation which may be or become
due to me under the Workmen's Compensation
Act, 1897, in respect of the accident which
occurred to me on," &c. Upon the employer's
agent bringing him the second payment, the
workman stipulated that he would only accept
that, and all future payments, "without preju-
the second and subsequent payments were ac-
dice." To this the agent assented, whereupon
cepted by the workman, he giving on each occasion

a receipt in the same form as before but not
stating in terms that the payment was" without
further payments from his employer, and brought
prejudice." Eventually he refused to accept any
liable for his injury:-
an action for damages against the person legally

Held, reversing the judgment of Jelf J., that,
in the circumstances, the reservation of “ without
prejudice" was applicable to the first as well as
to all subsequent payments, so that the first did
of the option given him by s. 6, and thus preclude
not irrevocably bind the plaintiff as an exercise
him from bringing his action against the other
person and recovering damages.

Rendall v. Hill's Dry Docks and Engineering
Co., Ld., [1900] 2 Q. B. 245, explained.

Little v. MacLellan, Ld., (1900) 2 F. 387, dis-
tinguished. OLIVER . NAUTILUS STEAM SHIPPING
COMPANY
C. A. 639

-

Factory and workshop.

See under FACTORY ACTS.

-

2 K. B.

EXCISE.

See under REVENUE.

FACTORY ACTS-Factory-Electrical Station-
"Public Building"-Workhouse-Factory and
Workshop Act, 1901 (1 Edw. 7, c. 22), s. 149,

sub-s. 1; Sched. VI., Part I., clause 20.

By s. 149, sub-s. 1, of the Factory and Work-
shop Act, 1901, "non-textile factory" means
(inter alia) any places named in Part I. of
Sched. VI. of the Act. By clause 20 of Part I.

of that schedule "electrical stations" are defined

as being "any premises or that part of any
premises in which electrical energy is generated
or transformed for the purpose of supply by way
of trade, or for the lighting of any street, public
place, or public building, or of any hotel, or of
any railway, mine, or other industrial under-
taking."

An engine-house and machinery, forming
part of the premises of a workhouse, were used
for the purpose of generating electrical energy
for lighting the workhouse and infirmary, and
for other purposes. One of the engines in the
engine-house was unfenced:-

-

Held, that the workhouse was a public place
within Sched. VI., Part I., clause 20, and the
engine-house was therefore a non-textile factory
within the meaning of s. 149, sub-s. 1, of the
Factory and Workshop Act, 1901. MILE END
GUARDIANS v. HGARE
Div. Ct. 483
Overtime Employment-Place where
allowed-" Warehouse not used for any Manufac
turing Process"-Factory and Workshop Act, 1901
(1 Edw. 7, c. 22), s. 49, Sched. II., clause 4.

2.

By s. 49 of the Factory and Workshop Act,
1901, overtime employment of women is per-
mitted on a limited number of days in the year,
and this permission is declared to apply to the
non-textile factories and workshops and parts
thereof and warehouses specified in the second
schedule to this Act." By Sched. II., factories
and workshops in which overtime employment is
allowed include (clause 4) "any part of a
factory (whether textile or non-textile) or work-
shop which is a warehouse not used for any
manufacturing process or handicraft, and in
which persons are solely employed in polishing,
cleaning, wrapping, or packing up goods

779

FLOATING SECURITY-Set-off-Debentures-
Rights of second debenture-holders 367
See COMPANY. 1.

FIXTURES-Hiring Agreement-Chairs fastened
to Floor of Place of Entertainment-Mortgage of
Building and Fixtures-Entry of Mortgagee into
Possession-Right of Removal by Owner.

Chairs were hired from the plaintiffs for use
the building under an agreement for hire con-
in a hippodrome by the owner and occupier of
taining an option of purchase which was never

exercised. The chairs were fastened to the

floor of the building by means of screws, in
accordance with the requirements of the local
authority:-

chattels because they were screwed down to the
Held, that the chairs did not cease to be
floor, and that the property in them did not
pass as against the plaintiffs to the mortgagee of
the freehold under a mortgage of the building
and fixtures. LYON & Co. v. LONDON CITY AND
Joyce J. 135

MIDLAND BANK

FOOD AND DRUGS—Sale of.

See under ADULTERATION.

FOREIGN LAW-General average, Special pro-
vision in charterparty as to

See INSURANCE, MARINE. 1.

503

FRAUDULENT ASSIGNMENT-Insolvent trader
-Transfer of his business and another's
to company for shares and debentures
See BANKRUPTCY. 4.

517

GAMING-Whist-Absence of Element of Wager-
ing-Licensing Act, 1872 (35 & 36 Vict. c. 94),

To constitute gaming the game played must
be one which involves the element of wagering;
each player must have a chance of losing as well
as of winning.

A number of persons hired a room in an
hotel for the purpose of playing whist. They
played for prizes, which were not subscribed for
by the players, but were given by third
persons:-

Held, that the whist so played did not

V.

amount to gaming within the meaning of s. 17
of the Licensing Act, 1872. LOCKWOOD
COOPER
Div. Ct. 428
GENERAL AVERAGE-Special provision in
charterparty as to-Foreign law -
See INSURANCE, MARINE.

GOODS-Sale of.

See under SALE OF GOODS.

1.

503

HUSBAND AND WIFE-continued.

[1903]

married woman alleging that payments due to
her from her husband under an order made
under the Act of 1895 are in arrear, is not a
matter in respect of which an appeal lies under
s. 11 of that Act to the Probate, Divorce, and
Admiralty Division; but the Court has power to
state a case for the opinion of the King's Bench
Division upon a point of law arising on the
information.

Manders v. Manders, [1897] 1 Q. B. 474,
distinguished. RUTHER v. RUTHER Div. Ct. 270

ss. 1, 2, 3

-

See SHIPPING. 1.

666

HIGHWAY-Exemption from Rate-Liability to
repair Ratione Tenure-Proof of Exemption from
Liability to contribute to Repair of other High-
ways-Highway Act, 1835 (5 & 6 Will. 4, c. 50),
8. 33.

The existence of a liability ratione tenure to
repair a certain highway does not of itself shew
that there is an exemption from liability to
contribute to the repairs of other highways in
the same highway district; there must be other
evidence that the exemption exists in order to
prove a legal exemption within s. 33 of the
Highway Act, 1835, which provides that, when
property, or the owner or occupier in respect
thereof, has, prior to the passing of the Act,
been "legally exempt" from payment of high-
way rate, that property and the owners and
occupiers thereof shall be exempt from payment
of the highway rate thereby imposed. FERRAND
v. BINGLEY URBAN DISTRICT COUNCIL

HIRING AGREEMENT.

See Cases under CONTRACT.

Div. Ct. 445

HUSBAND AND WIFE- Separation Order ·
Adultery of Wife-Liability of Husband for sub-
sequent Weekly Payments-Enforcement of Order
-Appeal by Case Stated-Summary Jurisdiction
(Married Women) Act, 1895 (58 & 59 Vict. c. 39),
88. 7, 9, 11.

Where an order for a weekly payment by a
husband to his wife is made under the Summary
Jurisdiction (Married Women) Act, 1895, and
the wife subsequently commits adultery, the
husband is entitled under s. 7 of the Act, on
proof thereof before a Court of summary juris-
diction, to have the order discharged in spite of
a finding by the Court that he has been guilty
of conduct conducing to the adultery; and he is
not liable to make any further payments to his
wife, although the order may not have been in
terms discharged by the adjudication as to the
wife's adultery.

The decision of a Court of summary jurisdic-
tion upon an information or complaint by a

64

92

INSURANCE, MARINE--Charterparty-“General
Average payable according to Foreign Statement'
-Special Provision in Charterparty as to General
Average Foreign Law.

The plaintiff, a shipowner, effected with the
defendants, underwriters, a time policy of insur-
ance upon his ship containing the following
clause: "General average payable according to
foreign statement if so made up." The plaintiff
chartered the ship to third persons, and by
the terms of the charterparty it was provided
that the ship might carry a deckload of timber,
and that "in case of average jettison of
deck cargo for the common safety shall be
allowable as general average." The ship sailed
for Antwerp with a deckload of timber, and in
the course of the voyage and during the currency
of the policy she suffered damage, so that it
became necessary for the common safety, in
consequence of perils insured against, to jettison
part of the deck cargo. On her arrival at Ant-
werp an average statement was there made up,

INSURANCE, MARINE-continued.

and the average adjuster, in accordance with
the terms of the charterparty, included the
jettison of deck cargo in general average. By
the Belgian law, apart from contract, the jettison
of deck cargo is not the subject of general
average; but that law recognises any special
provisions in a charterparty as to what shall be
the subject of general average:—

Held, applying the rule in Harris v. Scara-
manga, (1872) L. R. 7 C. P. 481, that as the
statement had been made up in good faith and
the charterparty imported no terms of a special
and unusual character such as could not reason-
ably have been contemplated by the parties to
the policy of insurance, the defendants, the
underwriters, were bound by the statement, and
were therefore liable to indemnify the plaintiff
against the ship's proportion of the loss on the
jettison of the deck cargo.

Decision of Kennedy J., [1903] 1 K. B. 109,
affirmed. DE HART v. COMPAÑIA ANONIMA DE
SEGUROS AURORA "
46

-

-

C. A. 503

2. Round Voyage by Stages-Warranty
of Seaworthiness, Breach of-Steamship insuffi-
ciently provided with Coal Burning Ship's
Fittings and Cargo-Negligence of Master
"Held Covered" Clause in Policy Fixing
Amount of Premium after Breach of Warranty.
In the case of a voyage policy upon a steam-
ship, where the contemplated voyage must, from
its length, be necessarily divided into stages for
coaling purposes, the shipowner is, as between
himself and his underwriter, under an implied
warranty that the ship shall, at the commence-
ment of each stage of the voyage, be seaworthy
for that stage, by having on board a sufficiency
of coal for that stage.

The plaintiffs insured their steamship with
the defendants for a round voyage from the
United Kingdom to port or ports on the west
coast of South America and back again, with
leave to call at any ports or places on the east
coast of South America, &c. The insurance

included general average. The perils insured
against were of the seas, &c., subject to clauses
annexed to the policy which provided (inter
alia): "This insurance is also to cover loss
through the negligence of the master," &c., and
Held covered in case of any breach of warranty,
&c., at a premium to be hereafter arranged."

During the voyage the ship called at Monte
Video, and through the negligence of the
master sailed thence without having sufficient
coal on board to take her to St. Vincent, her
next place of call, where in ordinary course she
would coal again. Her coal supply failing
between Monte Video and St. Vincent, the
master burnt as fuel some of the ship's fittings,
spars, and some of the cargo, and if he had not
done so she would have been in danger of
becoming a total loss. The plaintiff's did not
know until after the ship reached St. Vincent
that she had left Monte Video without sufficient
coal, and no premium had been arranged under
the "held covered" clause. In an action on the
policy to recover in respect of the loss of the
fittings, spars, and cargo:-

Held, that the policy was a "voyage policy,"
VOL. II. 1903.

A number of mules exceeding 20,000l. in
value having been shipped on the plaintiffs'
steamship for carriage, under a contract which
contained no clause exempting the plaintiffs from
liability for loss of the mules through the
negligence of the plaintiffs' servants, the plain-

tiffs effected an insurance with the defendant

and other underwriters at Lloyd's, to protect the
plaintiffs against liability of any kind to the
owners of the mules up to 20,000l. owing to the
omission of the negligence clause" from the
contract. The policy was in the printed form of
an ordinary Lloyd's policy, containing the usual
suing and labouring clause. During the voyage
the vessel was stranded through the negligence
of the plaintiffs' servants, and expenses were
incurred by the plaintiffs in saving some of the
mules, and in attempting to save others which
were lost. The plaintiffs sought to recover
these expenses, not as a direct loss under the
policy, but under the suing and labouring clause
as expenses incurred to avert or reduce the
amount of the loss :-

Held, that the suing and labouring clause
was inapplicable to and formed no part of the
contract of insurance, and that the plaintiff's
were not entitled to recover in the action.
Decision of Walton J., [1902] 2 K. B. 621,
CUNARD STEAMSHIP COMPANY v. MAR-
C. A. 511

affirmed.
TEN

4. Voyage Policy-Construction-Termi-
nation of Risk-Insurance for Period after Arrival
of Ship-" Days," how to be Reckoned.

In a policy of insurance on a ship the risk
was described as being for a voyage to a named
port "and for 30 days in port after arrival
however employed," and as running until the
ship "hath moored at anchor as above in good
The ship arrived in port and was
moored at anchor in good safety at 11.30 A.M.
safety."
on August 2, 1902. She remained in port until
September 1, 1902, and was totally lost through
perils insured against at 4.30 P.M. on that day-

policy meant thirty consecutive periods of twenty-
Held, that the expression "30 days" in the
fours hours each, the first period of which began
to run at 11.30 A.M. on August 2, and, therefore,
that the policy had ceased to cover the risk when
the loss occurred. CORNFOOT v. ROYAL EXCHANGE
ASSURANCE CORPORATION
Bigham J. 363

INTERNATIONAL LAW.

See under CONFLICT OF LAWS.

2