is a likelihood of the workman succumbing in the near future, the employer would make no application; but if there is apparently no likelihood at that time, the dependants would in all probability have some difficulty in proving that the workman's death was the result of the injury.

Before closing this article, a short reference must be made to the very recently decided case of Chandler v. Smith & Son (reported in the Times, July 15, 1899), Mr. Beven says, at p. 303, "An injury that is total-which produces a lifelong disfigurement and incapacity for other employments—is only a subject for weekly payments during the period of illness, if, when the workman has got well, he is able with the consequences of his injury to earn as good wages in the employment in which he was injured as he was previously able to earn before he was injured. Of course there is always open the question of fact, whether he really is able to do so. The fact that he is being paid the same wages is not conclusive." With the concluding sentence every one must agree, but the first part seems to require some modification, since in the above case Lord Justice A. L. Smith said the meaning of sub-section 2 (a) of section 1 is that "if the accident be of such a nature that the man is by law entitled during the two weeks immediately following the accident to recover full wages from his master at the work at which he was employed as before the accident, then such an accident is not to give rise to a claim by the workman against his master under the Act. The meaning of this sub-section is well exemplified by the maxim, De minimis non curat lex." And further adds, "Where is the evidence that a man maimed and mutilated for life by the loss of his thumb is by law entitled to recover from his master the same wage as he could have recovered before he was so mutilated."

In commenting on the fact that the learned County Court judge had found that the wages for the week of the accident and for the following weeks were paid, not as matters of

grace, but in performance of the contract of service, Lord Justice Rigby said, "If this means that the employer was bound by the contract to go on paying him his full wages until notice was given determining the contract, it may be true;" but he added, "Clearly the employers were under no legal-whatever may have been the moral-obligation to retain him in their service at full wages under the altered circumstances." It accordingly would seem to be extremely difficult to imagine "an injury that is total" which fails to give to the workman compensation under the Act.

The case of Chandler v. Smith & Son is also interesting from the peculiar use which was made of section 12 of schedule 1. In the case of Irons v. Davies & Timmins, Limited (reported in the Times, May 15, 1899), a nominal sum of one penny a week was awarded in order to keep the case within section 12. But in the case we are now considering, Lord Justice Vaughan Williams said that, "If the award might be reviewed when the facts had been ascertained, it seemed only reasonable that the fixing of the amount of compensation might be postponed until the facts were ascertained to which the measure was to be applied," and his lordship preferred "this course to that of awarding a weekly payment of one penny and then applying the provisions of section 12 of schedule 1."

This procedure from the point of view of the employer seems to be particularly unfortunate. It leaves hanging over his head for an indefinite time an unknown liability. There being no weekly payment, he cannot apply to redeem it by a lump sum.

Hitherto it has been supposed that this section only came into operation when a weekly payment has, in fact, been awarded. Accordingly Mr. Beven says (p. 316), "A weekly payment redeemed by the payment of a lump sum would apparently not come within this provision, even though subsequent events showed that the award was exorbitant."

If this procedure on the part of the Court of Appeal is to be taken to mean that any award (or perhaps even finding) can be reviewed under the provisions of section 12, it will throw greater force into what Mr. Beven has pointed out (p. 316), namely, that this rule may operate as a means of obtaining what is substantially a new trial, thereby getting behind Mountain v. Parr (15 T.L.R. 262), in which it was decided that there was no power in the Court of Appeal to grant a new trial.

In conclusion, it must be admitted that after twelve. months, the Act has not thrown upon the employer anything approaching to the liability which it was anticipated that he would have to bear.

Any interested observer who has carefully studied the relations between employer and employed must have noticed how strong has been the tendency of judicial and legislative opinion for years past towards assisting the workman, and how great has been the stride which the law has taken to achieve this end; so that at the time when the Act came into operation it is believed that the number-undoubtedly a small number— of injured workmen who found themselves without a remedy has not been so largely diminished or reduced as has generally been supposed. The Act from the point of view of assisting the workmen or from the point of view of increasing the liability of the employer is but a step, and that a small one, in the process of evolution which English Law, and indeed every useful system of jurisprudence, has always followed.

The most conspicuous direction in which the Act has failed is that, instead of providing an almost automatic system of compensation, by which costs and expenses were to be reduced to a minimum, it has raised an almost limitless number of points which can be effectively raised in an arbitration by both employer and workman respectively.

The Court of Appeal, in order largely to discourage an

undue number of appeals, has rather refrained from giving judicial interpretation to the difficult wording of the Act, and by multiplying the issues of fact has thereby increased the debatable ground for both employer and workman. In consequence, the issues of fact are now so difficult and sometimes so delicate, that it is rather contrary to the general spirit of English law to compel the parties to rely on the judgment of a single arbitrator instead of having such issues determined by a jury.

Such is the effect of the Act as it stands at present; but it is to be hoped that before long both the employer and the workman will accept the principle that in every contract of service there should be an implied condition to compensate, and accept the very reasonable scale provided by the Act as the basis of such compensation.

It will then be possible to allow the Employers' Liability Act, 1880, to expire, and to codify and simplify all the existing law on the subject, and the result cannot but be satisfactory to the employer, since, from its increased stability and certainty, he will the more easily be able to estimate the liabilities to which he is exposed.

WM. HANBURY AGGS.

XII. CURRENT NOTES ON INTERNATIONAL

LAW.

Statutes of Distribution in America.

The American Courts have lately had to consider what is the proper principle to be applied in the distribution of a sum of money awarded by Congress in satisfaction of what are called French spoliation claims, viz. claims of American citizens

(long since deceased) for damages done by depredations of French cruisers upon American commerce, and the judgments of French prize Courts, which by the treaty of September 30, 1800, the United States Government undertook to make good in consideration of French claims against the United States being abandoned. The Act of Congress of March 3, 1891, appropriated certain sums for this purpose, to be awarded to the next of kin of the deceased claimants; and of the many cases in which the question who were the next of kin and entitled to share was raised, one which went to the Supreme Court on appeal from Massachusetts may be taken as a type, Codman v. Brooks. The ancestor claimant died in 1825, leaving a will which gave the residue of his estate to some (not all) of his four children; and in 1891 there were living nineteen grandchildren, and twelve great-grandchildren (children of four grandchildren). The following theories of distribution. were urged: (a) that distribution should follow the will; (b) that the fund should be divided into fourths, for the four children and their descendants; (c) that it should be divided into twenty-thirds, for the grandchildren, children of deceased grandchildren taking per stirpes; (d) that it should be divided into nineteenths, i.e. among the grandchildren alive in 1891. The Supreme Court decided against (a), and held that the intention of Congress was that "the blood of the original sufferers should take at the date of the passage of the Act," and that "for ascertaining who are to take, the fund, though not part of the estates of the original sufferers, may be treated as if it were for the purposes of identification merely," and that the "next of kin" were "the next of kin living at the date of the Act to be determined according to the statutes of distribution of the respective states of the domicile of the original sufferers" (Blagge v. Balch [1895], 162 U.S. 439). This case again came up in Massachusetts, and the State Supreme Court held that the principle laid down by the Supreme Court in Blagge v. Balch, according