a share belonging to a domiciled Englishman in the proceeds of sale of land in Jamaica devised by a domiciled. English testator to trustees for sale, was "an English

equitable chose in action recoverable in England, and an 'English and not a foreign asset, and as such subject to "probate duty here." We commented upon a similar point in Vol. XXII., p. 116-117.

Lunatics' Property Abroad.

In an application in Lunacy which recently came before the Lords Justices in the matter of In re Hopper, 66 L.J. Ch. 569, the lunatic was a widow who was, with her four sons, entitled to a business carried on in Russia, the works and machinery being her absolute property. Her interest was of very considerable value, being estimated at over £100,000. The present application was for the appointment of her eldest son as committee of her estate and as receiver and manager of the Russian business, and for the appointment of her daughter, who resided in England, as committee of her person.

The application was supported by all the persons who were possibly interested in her estate, either as next-of-kin or under a will made by her. The Master in Lunacy was of opinion that the fact of the son being resident out of the jurisdiction was a serious objection to his appointment as committee of the estate, and proposed instead, the appointment of the Official Solicitor. It appeared, however, that by Russian Law it was absolutely necessary that any one dealing with the property should be the nearest relative. Under the circumstances, the Lords Justices appointed the eldest son and the daughter joint committees of the estate, leaving it open to the latter to give the former a power of attorney to act for both. They

also authorised the committees to sell or concur in selling the property of the lunatic in Russia.

*

Probate Duty on Foreign Wills.

The Court of Appeal, in December last, overruled the decision of the Divisional Court in the case of The AttorneyGeneral v. New York Breweries Co., Limited, 1897, I Q.B. 738. The case on appeal is as yet only reported in the Times L.R., Vol. XIV., p. 119; and W.R., 1898, p. 175. We have already referred to the facts of the case in discussing the decision in the lower Court. (See L.M. and R., Vol. XXIII., p. 50.)

It appears that the Crown had abandoned the claims for penalties under 55 Geo. III., c. 184, sect. 37, which had been originally made against the Defendant Company. The questions involved in the appeal were really four in number, i.e.: (1) Were the Shares and Debentures in the Defendant Company English assets? (2) Were the Company Executors de son tort in respect of the acts complained of? (3) If so, whether an information would lie to compel them to pay probate duty in respect of the assets which they had dealt with? And (4) Whether the process of transferring to the American Executors the Share and Debenture in the Defendant Company, which had been registered in the deceased's name, involved a "taking possession" of those assets within the meaning of the Statute?

The Court (Smith, Rigby and Collins, L.JJ.), in elaborate written judgments, unanimously answered each of these questions in the affirmative. Rigby, L.J., clearly laid down that, by English Law, duty was payable in respect of all the assets of a deceased person, whether domiciled or resident within this country or not, which were "locally situate in England." "Local assets "

included the shares and debentures standing in the name of the Defendant Company, which was an ordinary limited Company registered in England and having its registered office in London, although part of the assets of the Company consisted of brewery businesses in New York. (See Hanson on "Death Duties," 3rd ed., p. 160, and Dicey, p. 323.)

It was pointed out by Smith, L.J., that foreign executors obtaining transfers of shares in an English Company, or receiving dividends, would clearly be executors de son tort unless they obtained probate or grant of administration in England. (Compare the principles in Dicey's Conflict of Laws, Rules 115, 119 and 121, and Fernandes Executors, L.R. 5 Ch. 314.) The fact that the Defendant Company acted under the directions of another executor de son tort did not in the least justify them or prevent them from themselves being liable as executors de son tort. The Company were, therefore, liable to pay duty in respect of the assets administered.

Although the claim of penalties had been waived, all the Lords Justices clearly intimated that they regarded the acts of the Company as coming within the scope of the Statute under which they had originally been claimed, Collins, L.J., saying that there was a constructive "taking possession" involved in the alteration of the register and the payment of interest and dividends.

Other Points.

Recent cases of less general interest include the following :-Ex parte Clarke, 77 L.T.R. 417, as to a receiving order against a debtor domiciled and resident abroad; and Watson v. Sandie and Hull, 77 L.T.R. 528, as to income-tax on a foreigner's business "carried on in the "United Kingdom."

JOHN M. GOver.

138

VIII.-NOTES ON RECENT CASES (ENGLISH). Lopping Trees. Misfeasance or Non-feasance ?

A

TRAVELLER on a tramcar lost his eye through receiving a blow from a branch of a tree in Victoria Park, London, and claimed damages (Tregellas V. The London County Council) for the injury so suffered. For the County Council, it was argued that no action would lie, inasmuch as Victoria Park was a Royal Park, and the trees were Crown Property. Even though it might be the duty of the County Council to lop them, they could not be made responsible for nonfeasance. Reference was made to a multitude of cases. On the other hand, plaintiff's counsel argued that the negligence here was misfeasance. It was held by the Lord Chief Justice that the plaintiff could not recover. It was the duty of the London County Council to do all that was reasonably necessary for the proper regulation of the parks, and to insure the safety of the people using them. They were bound to see that the trees should not be allowed to extend beyond the confines of the park, so as to be a danger or nuisance to persons lawfully using the highways, and it was the duty of the park-keepers or some such person to report such an evil if it existed, so that the trees might be lopped. Trees had been allowed to extend their branches so as to be a danger and a nuisance, and the plaintiff had suffered injury. The trees, however, were not planted by the defendants, nor during the period in which they were charged with the control and management of the park. They neglected their duty of lopping the branches, but that was an act of non-feasance only. There was no statute which put an exceptional liability on the London County Council beyond that which the general law imposed. If the servants of the London County Council had in pursuance of their duty lopped the trees so as to prevent them

from being a nuisance, and in the course of doing so had let a branch fall on a passer-by, and so caused an injury, then that would have been a misfeasance, and the London County Council would have been liable. As the defendants were not liable for an act of non-feasance, there was no case against them. There is often an incorrect use of the word misfeasance and malfeasance-for misfeasance is the wrongful and injurious exercise of lawful authority, or the doing of a lawful act in a wrongful manner, whereas malfeasance is specifically the doing of an act which is positively unlawful or wrongful, as shewn in Grant's "History of the United States," where it is stated that an account of a certain stateman's malfeasance reached England. Non-feasance is the omission of some act which ought to have been done by the party.

The Right to Heriots. A Practical Point.

Is it correct to apply for a rule nisi for a mandamus to the lord and the steward of a manor to compel them to admit the applicants to a holding in a manor formerly held by a person since deceased, the applicants being the trustees of the will of the deceased? Mr. Justice Wright in the case of Ex parte Page answers this question in the negative. He said it was not a proper case for a prerogative writ of mandamus. The prerogative writ could only be granted in cases of public concern. It appeared in this case of Re Page that the deceased had carried on the business of a farmer in partnership with his brother, and had a partnership interest in the stock and chattels of the business. One of the incidents of the copyhold property was a heriot. A point

was as to whether the lord of the manor was entitled to refuse to admit the applicants to a portion of the property except on the payment of twenty guineas in lieu of a heriot. A formal application was made by the trustees demanding admittance, with an offer to hand over any article of