Hastie v. The Magistrates of Edinburgh ([1907], S. C. 1102), and Stevenson v. The Corporation of Glasgow ([1908], S. C. 1034). Our attention has been drawn to the point afresh by an inferior court decision in an action raised against a Local Authority by the father of a child three years of age that was drowned by falling into a stream which ran alongside a public park. The ground of action was that the stream should have been fenced. In dismissing the case, the Sheriff referred to Stevenson's Case, and as will be easily seen, the rule there laid down, if it is to be accepted and acted upon, will effectually clear away many of the difficulties which have been experienced in this class of case. The passage from Stevenson's Case is as follows:—“ The_proximate cause of the death of the "child was not the existence of the river at all, but the “fact that a child of tender years went there unattended. "If the child was in a position to take care of itself, the "same standard must be applied as would be applied in "the case of an adult. If the child was so young as not "to be able to take care of itself, it should never have been "allowed to go there unattended, and the defenders cannot "be made liable for an accident the proximate cause of which was that the child went there without an attendant.”

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As it is understood that the case of Herbert's Trs. v. The Inland Revenue ([1912], 49 S. L. R. 699) is under appeal to the House of Lords, we need only mention here that in it the Court of Session held, in interpretation of the Finance (1909-10) Act 1910, that the assessable site value of land could not be a minus quantity.

Henderson v. Paul ([1867], 5 M. 628) is one of the few cases dealing with the question of liability for an arbiter's fee. The theory of the Common law is that an arbiter is a friend who uses his good offices to settle a dispute, gladly doing so without expectation of fee or reward. In the case

mentioned there had been a reference to an accountant, and though there was no express stipulation that he should be paid, the facts showed that the parties understood that he was to be remunerated, and one of them having paid the fee was found entitled to recover half of it from the other party. This rule has now been followed in Macintyre Bros. v. Smith ([1912], I S. L. T. 255). There the successful party in an arbitration had been found entitled to costs, and he raised action to recover one-half of the fee he had

paid to the arbiter. It was found that the presumption that the arbiter had acted gratuitously had been displaced by the facts, and the pursuer got decree for the sum sued for.

A very important point in bankruptcy was brought before the Court in Special Case (Chrystal's Trustee v. Chrystal [1912], 1 S. L. T. 500). Chrystal had taken out two insurance policies, each bearing that the proceeds were payable to him at a fixed date twenty years later, and that if he died. before the arrival of the fixed date, the proceeds should be payable to his wife if she survived him. He died before the fixed date, survived by his wife. At the date of his death he was insolvent, his estates were subsequently sequestrated and a trustee appointed. A competition arose between the trustee and the widow for the proceeds of the policies, the widow contending that she was entitled to them in virtue of sect. 2 of the Married Women's Policies of Assurance Act. That section declares that a policy on the life of a married man, expressed on the face of it to be for the benefit of his wife, shall not fall. to creditors, but the peculiarity of Chrystal's policies was that they were expressed to be for the benefit of primarily the husband, if he survived a certain date, and secondly, the wife. Or stated otherwise, the ordinary married woman's policy conferred on the wife a right contingent only on her surviving her husband, but the policies here in question made such right contingent on her surviving her husband and on his death

before the fixed date. The Court found that the policies were protected by the Act. The Statute recognised that the interest of the wife in the ordinary married woman's insurance policy might be clogged with the contingency of her surviving her husband, and they thought there was no reason why it should not depend on a double contingency, as was the case in Chrystal's policies.

A testator directed his trustees to set aside and hold £16,000, and pay the income thereof to his children. He then provided that the residue of his estate was to be made over to his children on their attaining the age of twenty-five, or being married in the case of daughters. There was also a direction that the trustees, original and assumed, should receive among them annually the sum of twenty-five guineas. When the period of payment of the residue arrived, the trustees proposed to retain in their hands, out of the residue fund, the sum of £900 to meet the legacy of the annual payment to themselves. The Court, however, decided in a Special Case brought for their opinion, Kirkwood v. Kirkwood's Trustees ([1912], 1 S. L. T. 251), that as the trust was being kept up only for the payment of the income of the £16,000, the trustees' remuneration (for so the legacy might be regarded) should be treated as a charge of administration, and should be paid out of the income of that sum, and that accordingly the trustees were not entitled to retain any part of the residue.

A trustee in bankruptcy has, as a general rule, nothing to do with matters which primarily concern the character or status of the bankrupt. For instance, he cannot raise an action of damages for slander of the bankrupt or take proceedings to get him divorced, though the possible result of such actions might be to get more money for division among the creditors. In the case of Corbidge v. Somerville ([1912], 2 S. 4, T. 19), it was found that during the

bankruptcy of the husband his wife had sued for divorce. The husband did not defend the action, no intimation of it was made to his trustee in bankruptcy, and accordingly the wife obtained decree in absence. One of the results of the divorce was that the income of a fund which had been payable to the husband during his life now became payable to his wife, divorce being equivalent, as between spouses, to death. The husband's trustee raised action to reduce the Decree of Divorce, on the plea that it had been granted in absence without his knowledge, and without the whole facts and circumstances being fully disclosed to the Court. The Lord Ordinary has held that the trustee has a title to sue. An appeal, if taken, will be watched with interest, as if this judgment is sustained it will obviously enlarge the scope of the duties of trustees in bankruptcy. D. M.

IRISH CASES.

An interesting little point in connection with the consolidation of mortgages is decided in Thomson's Estate ([1912], 1 Ir. R. 194). It is not too much to say that the conflict in the present case was due to some rather unguarded language used by Page Wood, V.C., in Selby v. Pomfret (J. & H. 336), suggesting that consolidation is a process which works automatically once the conditions are fulfilled-that when the debts become united in the same creditor both the estates become pledged for the same amount.

Taken literally, this language would have helped the mortgagor who, in the peculiar circumstances of Thomson's Estate, found it to his interest to contend that consolidation had taken effect. But it is not so: the right to consolidate is "an equity in the mortgagee or his assign which he may or may not enforce." The mere union of the charges has not the effect of creating a direct charge on the entirety of both properties.

The point in Jackson v. Yeats ([1912], 1 Ir. R. 267) is one of those which seem hardly to need decision, except that they are solemnly raised. An executor may, of course, retain a legacy as against the amount of a debt due by the legatee. But it must be a debt due "to the estate." The executor cannot, generally speaking, retain a legacy in respect of a debt due by the legatee, not to the testator, but to a firm in which the testator was a partner. The only argument which could be suggested in favour of the wider right of retainer was, that "the legatee must come into this Court to get his legacy, and therefore must pay his equitable debts before obtaining the assistance of the Court." On the most thorough-going principles of conscience, however, a Court could hardly make it a condition of a man's receiving a benefit from A, that he should pay a debt to B and C.

Malone v. Belfast Bank ([1912], 2 Ir. R. 187) is a case which occupies an immensity of space in the Reports, which turns on very special facts, and in which beneficiaries under a will succeeded in making a bank liable for misappropriation of moneys belonging to the estate by the bank manager, who was executor of the will. The bank had received the moneys of the plaintiffs, as the manager had applied them to the reduction of his own over-draft: and there was a finding by the jury that the manager had been enabled to commit his long series of frauds partly by his position as executor and partly by that of manager. In these circumstances, the Court thought that "the actual knowledge relating to the banking business, present to the mind of the manager, even though partially derived from his position as executor of Malone, should be attributed to the bank." The case cannot be said to extend the measure of a principal's liability for wrongful acts committed by his agent, but it certainly shows how wide, in possible circumstances, that liability may be.