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Foreign Bankruptcies. The question of the ex-territorial effect of a foreign or colonial bankruptcy arose in In ve Hayward, Hayward v. Hayward, 1897, 1 Ch. 905. Under an English will a testatrix left a life interest in a certain trust fund to her son, determinable upon his bankruptcy or upon his doing or suffering "something whereby the same or some part " thereof would

if belonging absolutely to him, “ become vested in or payable to some other person or

persons."

The son was a domiciled Englishman, but was at the death of the testatrix temporarily resident in New Zealand, where shortly afterwards he was adjudicated bankrupt by an order of the Supreme Court of that colony. The bankruptcy was subsequently annulled, but the question arose as to whether it had caused a forfeiture of the life interest bequeathed by the will. Kekewich, J., following In ve Blithman, L.R. 16 Eq. 585, and distinguishing In re Davidson, L.R. 15 Eq. 383, and In re Lawson's Trusts, 1896 (1 Ch.) 175, held that as the colonial bankruptcy could only operate as an assignment of the debtor's ex-territorial property if the debtor was domiciled in New Zealand, it did not produce a forfeiture. The general principle indicated seems undoubtedly a sound one, and is in accordance with the decision of the Court of Appeal in In re Artola Hermanos, 24 Q.B.D. 640. Both Westlake ($134) and Dicey (Rule 109) seem to regard the proposition as now settled beyond dispute.

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Foreign Torts. A moot point of some difficulty has at length been settled by the Court of Appeal in the recent case of Machado v. Jones, 66 L.J. Ch. 542. The plaintiff sued the defendant for damages for an alleged libel published in Brazil. The defendant sought to amend his defence by pleading in effect that by Brazilian Law no action for damages would lie; or even assuming that it would, that the only damages recoverable would be special damages. The Court ordered the plea to be struck out, on the ground that the mere fact that a foreign tort is not actionable by the lex loci delicti commissi is immaterial, provided that it can be shewn that it was an act which was "not innocent” by the foreign law. Lopes, L.)., said “the general principle is that in order “ that an action may be maintained in this country in

respect of a tort committed outside the jurisdiction, the “act complained of must be a wrongful act, both by the law “ of this country and by the law of the country where it was “committed ; but it is not necessary that it should be the subject of civil proceedings in the foreign country.”

Rigby, L.J., applying the rule to the present case, laid down that “there is no doubt that an action for a libel

published abroad is maintainable here unless it is shewn “ that the libel was justified or excused in the country where “ it is published.”

The Court followed the view apparently adopted by Wightman, J., Willes, J., and Blackburn, J., in the case of Scott v. Seymour, 1 H. & C. 219; of Willes, J., in Phillips v. Eyre, L.R. 6 Q.B. I; and of the Judges of the Court of Appeal in the case of The Moxham, L.R. 1 P.D. 107, all of whom appear, when referring to the foreign law, to have advisedly used the terms “ unjustifiable" and "wrongful” instead of" actionable." On the other hand Williams, J., in Scott v. Seymour, and the present Master of the Rolls in the case of the Chartered Bank of India v. Netherlands, &c., Co., 10 Q.B.D. 521, seems to have taken a different view. In the latter case (p. 536) Lord Esher refers to the “well“known rule that for any tort committed in a foreign country

an action of tort cannot be maintained "in this country unless the cause of action would be a cause of action in that country, and also would be a cause of

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“action in this country.” Curiously enough this dictum does not appear to have been considered in the recent case, either in the arguments or judgments. It is to be observed that Professor Dicey (Conflict of Laws, p. 662) has construed the rule of law in the sense in which it has now been decided, though he says that “logically this conclusion is

difficult to defend, and there is a good deal to be said in "favour of the view apparently maintained by Lord Esher "and Mr. Justice Williams.”

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Power of Appointment by Will. A curious question arose in the case of In re Bald ; Bald v. Bald, 66 L.J. Ch. 524; 76 L.T.R. 462. A testator, A., domiciled in Scotland, gave to B. an interest in the income of a settled fund, and also a general power of appointment over the corpus to the extent of £2,000. B. (presumably a domiciled Englishman, though this question was not actually decided), exercised this power by will and died insolvent. By Scotch law this appointment would

. not, as it would by English law, make the appointed property general assets for creditors. Byrne, J., held that "although the appointment was made by an Englishman and “by an English instrument, the law of Scotland” (i.e., of the domicile of the original donor of the power) “governed the case, and the property would go according to Scotch law."

The case is so shortly reported that the exact grounds of the decision are not quite apparent, but the conclusion arrived at seems not altogether satisfactory. If the power was effectually exercised at all (as seems to have been the case), the fund would appear to have become part of the donee's assets, the administration of which would ordinarily be a matter exclusively of English law—the lex fori. A fuller report might clear up the difficulty.

JOHN M. GOVER.

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VI.-NOTES ON RECENT CASES (ENGLISH).

Foreshore Rights.

“THE ownership in the soil under navigable waters is

different to the ownership over land.”

" But we have the right of an ancient fishery in this part of the river.” “But fish do not go into the soil. I can never understand what difference ancient fishery rights make to questions of ownership.” “In the case of Gann v. Three Fishermen of Whitstable it was laid down that the right to anchor at pleasure in navigable water did not include the right to put down moorings. The case was decided by the House of Lords." “Surely you do not suppose we want the authority of the House of Lords or that of the House of all the grandmothers in England to tell us that anchoring a vessel in the ordinary course of things is an incident to the right of navigation ? All I can say, if such authority is necessary we shall next have an authority cited to enable us to hold that it is an incident to the enjoyment of life for a man to blow his nose." This conversation took place between counsel in a case as to foreshore rights and the Master of the Rolls, the latter commencing the subject. The question was as to whether persons using navigable waters in a river have as against the owner of the soil, the right to put down permanent moorings. Certain yachtsmen, boat-owners and fishermen of the town of Leigh, in Essex, sought to restrain the defendant, a fish salesman and lessee of the Hadleigh Ray fishery off that town, from interfering with the moorings on the foreshore. It was contended by the plaintiffs that from time immemorial the fishermen and boat-owners at Leigh had moored their craft to moorings which they had put down on the foreshore. The defendant had taken a lease of the fishery, and subsequently

gave the plaintiffs notice that if they did not pay him a rent, he should prevent them from mooring at the spot in question, alleging it was within his fishery grounds. Compliance with defendant's claim was refused by plaintiff, and as defendant removed some of the moorings, this injunction was sought to restrain interference. The dispute went before the Divisional Court and there the plaintiffs obtained a verdict with an injunction, but, inasmuch, as the plaintiffs had failed to shew that the mooring ground was not within the defendant's fishery, the defendant was held to be entitled to costs on that part of the case. The defendant took the matter to the Court of Appeal, contending that the right claimed by the plaintiffs to anchor their boats was not incidental to that of ordinary navigation, and defendant, being a lessee from the lord of the manor, could cut away and remove permanent moorings. The Master of the Rolls pointed to the case of yachts at Cowes, where the owners were perfectly at liberty to put down moorings which they could come back to. The land there was vested in the Crown, and it could not be supposed that their right to do so came from any special grant. Counsel pointed out that at the time this case of Attorney-General v. Wright was being tried in the Divisional Court, a question of whether a right alleged to have been enjoyed by the public generally could exist at law, was being decided by Vice-Chancellor Chatterton in the Irish Court. The question there was whether the fact that the

. land about the Giants Causeway had been open for generations to tourists and others, who wandered about the locality in order to enjoy the scenery, gave by

the prescription the public a right to continue to go there without let or hinderance, the property having been purchased by a company who desired to impose a toll. The Court held that no such right as was claimed on behalf of the public could exist at law. The respondents

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