347

SCOTCH CASES.

The House of Lords have again, in Laird & Sons v. Price & Pierce Limited ([1912], 49 S. L. R. (H. L). 95), emphasised the importance of a judgment of a judge of first instance on a question of fact. The Inner House had taken a different view from the Lord Ordinary, but on appeal the judgment of the Lord Ordinary was restored. The words of the Lord Chancellor should be borne in mind by those who may have to advise as to appeals in cases that are "narrow" as to evidence: "It was never intended that a Court of Appeal "should have to decide matters of this kind upon such “insufficient and unsatisfactory testimony, but I think the "only course that I can advise your Lordships to take is to "adhere to the opinion of the Lord Ordinary, who had the "best opportunity of coming to a conclusion of fact."

The Bills Act of 1882 clearly defines the position of an endorser of a Bill of Exchange. His endorsement implies an undertaking by him that the Bill on due presentment will be paid, and that if it be dishonoured he will compensate the holder, provided that the requisite proceedings. on dishonour have been duly taken. These are, that the Bill must be duly presented for payment, and that if it be dishonoured, notice of dishonour be given to the endorser, otherwise the endorser is discharged. But both presentment and notice of dishonour may be dispensed with by waiver express or implied, and the case of Patrick v. Whyte ([1912], 1 S. L. T. 134) is the best instance that has occurred since the Act was passed of this principle of waiver by an endorser. The case turned on its own special facts, but in the opinions of the Second Division judges will be found a full and interesting discussion as to what constitutes proof that the endorser has agreed to waive, in a question with the holder, the duties incumbent on the latter of presenting the Bill and giving due notice of

dishonour. In the particular case referred to it was found there had not been waiver, though that result will, we think, scarcely commend itself as being the logical legal consequence of the actings of the endorser there in question and the agent of that endorser.

A Common-law action for damages by a servant against his employer is one seldom if ever seen, for the reason, of course, that such actions have been practically superseded by the statutory remedies given by the Employers' Liability Act and the Workmen's Compensation Act. Accordingly, the case of Black v. The Fife Coal Company ([1912], 49 S. L. R. 228), recently decided in the House of Lords, is one of unique interest and importance. Two miners had been killed by an outbreak of gas in a pit, and the employing coal company were found liable in damages at Common law in respect of their deaths, on the ground that they failed to perform statutory duties enjoined by the Mines Acts. From the report of the case, the neglect of statutory duty appears to have been a failure to appoint a competent person to inspect and report on the gases in the mine. They had appointed such an inspector, but he was not competent; and it will thus be seen that the question very sharply arose, Did the defence of common employment apply? The Court of Session held that it did. The House of Lords reversed and ruled that the neglect to employ competent persons was a breach of statutory duty, the consequences of which the employer could not escape by operation of the doctrine of common employment.

The Scottish North American Trust Ltd. was formed to carry on an investment and financial business in the United Kingdom and elsewhere. In the course of its business the Company purchased certain American securities, and in order to pay for them they arranged for an overdraft from an American bank pledging the securities in security for

the overdraft. The amount of the overdraft fluctuated, and the Company was charged periodic interest from day to day at the current rate. The bank also granted loans for periods of six months at a fixed rate of interest. The bank collected the dividends on the securities and paid themselves the interest due to them, crediting the balance to the Company. In assessing the Company for income tax, the Commissioners refused to deduct from the profits of the Company the amount retained by the bank as interest. The Company appealed against the assessment, contending that this interest was not annual interest payable out of the profits and gains of the Company, but expenses incurred in the Company's business for the purpose of earning its profits. The Surveyor of Taxes contended that the interest in question was interest on capital employed in the business of the Company, and, therefore, should not be deducted in ascertaining the profits of the Company. The House of Lords, affirming the judgment of the First Division, held, Scottish North American Trust v. Farmer ([1912], 49 S. L. R. (H.L.) 8), that the interest should be deducted in calculating the profits of the Company. Money borrowed by a Company of this nature in the fluctuating temporary manner in which it was here borrowed, the daily borrowing and lending of money being part of their business, was not to be treated under the Companies Acts as capital. There was no reason why it should be treated as capital under the Income Tax Acts. The interest was, in fact, or hire of an instrument of their trade just as much as if it were the rent paid for their office or the hire of a typewriting machine. It was an outgoing by means of which the Company procured the use of the thing by which it made its profit, and, like similar outgoings, it ought to be deducted from the receipts in order to ascertain the taxable profits of the Company.

money paid for the use

D. M.

350

IRISH CASES.

Coffee v. McEvoy ([1912], 2 Ir. R. 95) is quite the most important case on a matter of general principle in recent numbers of the Irish Reports. A strong Divisional Court discusses "the unsettled and critical state of the law on the nature of the duty due by the owners of real property to a trespasser thereon," which has been said in Lowery v. Walker ([1911], A. C. 10) to be somewhat wide and not free from many difficulties. The decisions of the House of Lords in the case just mentioned, and in Cooke v. Midland G. W. Railway ([1909], A. C. 229), have been felt to cut into the old rough-and-ready working rule that you may do anything to a trespasser short of setting a trap for him; and the judgment of Palles, C.B., in the present case is particularly valuable as an attempt to ascertain the true limits of the rule in view of those recent authorities. The plaintiff was a child of six years old, who lived with his parents in two rooms of a tenement house, whereof the defendants were the landlords, keeping the stairs and landings under their own control. He sustained injuries on the 22nd August, by falling through an open staircase-window; and it may be assumed against the defendants that there was some evidence that the window was to their knowledge in a dangerous condition, at all events for a young child. But on that date the plaintiff and his parents were trespassers, for the parents' tenancy had been determined by a notice to quit, and a demand for possession had been made on the 16th August and a summons for possession issued on the 17th. It is true that the magistrates' order for possession was not made till the 25th, but there can be no doubt that the demand and the service of the summons turns the overholding tenant into a trespasser. In that state of facts, and in an action for negligence, the Court held that there was no duty on the landlord to maintain the premises in such a condition as to prevent the child falling through the window.

Admittedly, if the plaintiff was lawfully using the stair, the defendants would have been under a duty to use reasonable care to keep the staircase in a reasonably safe condition. There was no evidence of invitation nor of licence, as in Indermaur v. Dames (L. R., 1 C. P. 274), or Gautret v. Egerton (L. R., 2 C. P. 371); nor of omission to give warning to the trespassing father, as in Cooke v. M. G. W. Ry. or Lowery v. Walker. The Chief Baron "can find no case where it was held that the occupier of land trespassed on was under any legal obligation to the trespasser to do anything to protect him." He was of opinion that "the act which will constitute a breach of obligation to a trespasser must be one of commission not of omission. The occupier of a fenced field would be under an obligation to refrain from turning into it a bull known to be ferocious, without notice to a person who to his knowledge was then actually trespassing thereon." But the acts from which the occupier must refrain cannot extend beyond acts done with the wilful intention of doing harm, and acts the direct and immediate effect of which would be to do harm to the trespasser. The recent cases in the House of Lords were distinguishable on the ground that the plaintiffs there were not really trespassers at all: "for myself I hold that Lowery v. Walker was decided on the simple ground that the plaintiff was lawfully in the place in which the injury happened, and this I also regard as the ratio decidendi in Cooke v. M. G. W. Ry." There is also a useful comment by Gibson, J., on the so-called "doctrine of allurement," which played a certain part in the decision of Cooke's Case: "all the examples of allurement deal with attractive articles placed by a voluntary act in a tempting position and proximity to some place of lawful resort."

O'Brien v. M'Carthy ([1912], 2 Ir. R. 17) emphasises again something which was already pretty clear the divergence between the franchise law in England and Ireland