the jus angariæ, as an act of State against a foreigner. It is obvious that the jus angaria can only be exercised within the territory of the belligerent Power, or in that of its enemy (or perhaps its allies). And the Crown cannot take advantage of its own act in bringing a neutral ship within its territory for trial, to seize it there. It is there for one definite purpose only. The defence of " Act of State against a foreigner," which might be good in a municipal Court (Buron v. Denman) is out of place in an international one. The President avoided a decision on this point; and decided the question on the narrow ground that O. XXIX r. 2 of the Prize Rules conferred no power on the judge to release property to the Crown if there was any reason to believe that it was entitled to be released (to claimants). The Registrar had made such an order, and his Lordship simply reversed it; leaving the Crown to enforce its jus angariæ (if any) and its acts of State (if such) by other means.

Ship's Nationality.-The Oriental.

Here we have the case of an asserted Swedish yacht, or half-Swedish yacht, the national character of whose papers and register is not stated. That she was flying a "Hungarian" flag is clearly an immaterial circumstance. There is no "Hungarian" flag; the national tricolour is not worn by merchantmen, and its display is a mere ornamental decoration, like the display of the Irish harp on an Irish boat. Captors were allowed to adduce evidence that the word "Hungaria" was partly decipherable on her stern. This is of doubtful propriety; but in any event, there is nothing to prevent a Swede from calling his yacht Hungaria, especially if she is part-owned by a Hungarian son-in-law. She had a Swedish master and crew, and was entered in a Swedish yacht club. In these circumstances, the most that could have been done was, it is submitted, to condemn the moiety of the Hungarian part-owner. The Court, however,

decided to condemn the whole. It was argued that the vessel (if Hungarian) ought to have had the days of grace for exit allowed by the Hague Convention. That grace is probably facultative merely; but in any case the President rejected the argument, because the Convention only applies to merchant vessels-and a yacht is not a merchantman. That is a narrow construction which perhaps takes insufficient account of the intention of the Treaty, which was to except warships, and not to attack vessels of pleasure.

"Restraint of Princes."

Linseed was shipped from Buenos Ayres in the ss. Andrew and the Oretina, and became a constructive total loss, having sustained such a depreciation and deviation as amounted to a loss of the venture. The insured claimed on a policy insuring loss by restraint of princes (Sanday v. B. & F. Marine Insurance Co., Ld., 1st Feb., 1915). It has long been a moot question whether the acts of the British Crown come under this term or whether it is not properly limited to the acts of foreign potentates. In the case of this linseed, the voyage to Hamburg was prevented, not by any act of a foreign Power, but by the outbreak of war and the consequent coming into play of the general rule against enemy traffic. The fact that British and French cruisers directed the ships to proceed to a British port does not affect the question. Was the ordinary prohibition against completing a voyage to the enemy country, then, a “restraint of princes." Bailhache, J., held that it was, but the weight of authority seems to be very decidedly the other way. The desire to hold the shipper covered operated to make bad law. It is dubious, in any event, whether the ordinary operation of the ordinary law, as distinct from a specific Governmental interference, can ever be styled a "restraint of princes."

TH. B.

348

VIII. NOTES ON RECENT CASES (ENGLISH).

TWO

WO long-established principles were recently considered in the House of Lords, and while one was modified in a way some great judges have suggested it should be, the other, with all respect to the distinguished tribunal in question, was applied very literally and even in a somewhat pedantic way.

The first principle was as to the grounds on which a fixed sum reserved in a contract as payable for breaches of its stipulations is to be regarded as a penalty. Most of the rules as to this have been finally settled many years ago; but one has never received the complete acquiescence of lawyers. It was this, that where the sum reserved is made payable on the breach of any one of a number of stipulations, the breach of some of which would in the nature of things result in different amounts of damage, the sum must be considered not liquidated damages, but a penalty against which the Court would grant relief. This rule was criticised by Jessel, M.R., in Wallis v. Smith (L. R. [1882], 21 Ch. D. 243, at p. 262), and by Rigby, L.J., in Willson v. Love (L. R. [1896], 1 Q. B. 626); but nevertheless it has remained the established principle on which the Courts have acted. Now, however, in Dunlop Pneumatic Tyre Co., Ltd., v. New Garage & Motor Co., Ltd. (L. R. [1915], A. C. 89), the House of Lords have decided that it only applies where the amount reserved would be plainly exorbitant if exacted for the breach of some of the stipulations to which it is annexed.

The second principle related to the construction of wills. It is a rule of interpretation that where a bequest is made to an object so described that the description will apply with absolute accuracy to one object only, this object will take although there are other objects to which the description will partially apply. The good sense of this rule.

cannot be questioned. But surely it should be limited. If a testator made a will according to the law of his domicile and intended to be construed and enforced by the law of his domicile, surely his descriptions of the objects of his bequests should be primâ facie held to apply to things answering them within the country of his domicile. If I, living in London, leave a gift to, say, "the Charitable and Benevolent Society of St. John," and it turns out that the full name of the Society is the "London Charitable and Benevolent Society of St. John," but that there is in Canada a "Charitable and Benevolent Society of St. John," without qualification, is the rule to be rigidly applied, and the latter society, of which I may never have heard, be declared to be entitled to my gift? That is what the House of Lords has decided in National Society for the Prevention of Cruelty to Children v. Scottish National Society for the Prevention of Cruelty to Children (L. R. [1915], A. C. 207), reversing the judgment of the Court of Session in Scotland. There the testator (a Scotsman residing in Scotland) left, among other bequests to Scottish charities, a legacy to the "National Society for the Prevention of Cruelty to Children." There is in Scotland a society of this name, but it is called formally the "Scottish" National Society. There is also a society in England of this name without qualification. This society does not carry on work in Scotland. The House of Lords-though there was no evidence to show that the testator knew of the existence of the latter, and there was evidence of his interest in the former society-held that the latter took the gift. If the "National Society" had its habitation in, say, California, would they have come to the same decision? In principle they should, since, so far as Scots law is concerned, England is just as much a foreign country as the United States. The decision can only result in the defeat of testators' obvious intentions, and promote that,

litigation over charitable bequests which is making sensible testators hesitate to bequeath to charities money which their experience shows is as likely as not, through some slip in description, to be bequeathed to lawyers. In passing, it may be noted that there was not a single Chancery lawyer among the learned lords who heard this case.

What advantage arises from reporting cases heard before a tribunal which declares that it is not bound by its own previous decisions? In the Hastings Peerage Case (8 Cl. & F. 144) the Committee for Privileges held that the assembly of May 29th, 1290, was a parliament for peerage purposes, and that, consequently, one who was proved to have sat in it held a peerage by writ. In the St. John Peerage Claim ([1915], A. C. 282) the same Committee held the reverse. Lord Parker of Waddington laid down the rule that previous decisions did not bind the Committee, and then proceeded to state the principles upon which cases before the Committee were decided. How those principles came into existence except by virtue of previous decisions his lordship did not explain. The result is that the descendant of a man who sat in this assembly, which the King ignorantly described as plenum parliamentum, and whose heir was summoned by writ to many assemblies which are admitted to have been parliaments, is told that there is no proof that his ancestor ever was a peer, which may be law, but on the face of it is not common sense.

A point is decided in James Roscoe (Bolton) Ltd. v. Winder (L. R. [1915], I Ch. 62) with regard to the rule in Hallett's Estate (L. R., 13 Ch. D. 696) which, it seems strange, has not been decided before this. In re Hallett's Estate (supra) laid down the principle that where a trustee paid trust money into his private banking account, and afterwards drew money for his own use from the mixed fund, he must