(c) The argument that technical words, such as appear in the Schedule above quoted, cannot have any operation outside England (which, of course, includes Wales) and Ireland, derives some support from certain instances in which the Criminal law expressly deals with matters occurring outside the jurisdiction of the United Kingdom. The Larceny Act 1896 imposes punishment for the receipt or possession of property stolen abroad, but the difficulty which would otherwise arise as to the meaning of "stolen outside the United Kingdom" is expressly dealt with by sect. I in the following way :

Section 1.-(1) [Punishment for receipt or possession of property stolen abroad.]

(2) "For the purposes of this section, property shall be "deemed to have been stolen where it has been taken, extorted, "obtained, embezzled, converted, or disposed of, under such "circumstances that, if the act had been committed in the "United Kingdom, the person committing it would have been guilty of an indictable offence, according to the law for the "time being of the United Kingdom."

แ

That is the sort of clause, extended from the particular to the general, and reciprocally applicable to England and Ireland and to Scotland respectively, which should have been inserted in the Prevention of Crime Act 1908 if it was intended to have the construction placed upon it which an affirmative answer to our question would demand.

Again, if we turn to the Extradition Acts 1870 and 1873, we find that the Legislature has made express provision for the difficulty of applying English technical terms to acts committed outside the jurisdiction. By sect. 26 of the Act of 1870 "The term 'extradition crime' means a crime which, if committed in England, or within English juris"diction, would be one of the crimes described in the First "Schedule to this Act." And the First Schedule begins as follows: "List of Crimes. The following list of crimes is

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"to be construed according to the law existing in England, "or in a British possession (as the case may be), at the "date of the alleged crime, whether by Common law or by Statute made before or after the passing of this Act: "Murder and attempt and conspiracy to murder, manslaughter," etc., etc.

(D) In conclusion, our question is: In an English Court, when it is sought to satisfy sect. 10 (2) (A) of the Prevention of Crime Act 1908 above set out, is it competent to the prosecution to put in evidence Scottish convictions for acts which, if committed in England, would be crimes within the definition in the Schedule above quoted? It is submitted, with hesitation, that the answer must be in the negative. The question has, however, received an affirmative answer in an unreported case which occurred recently at assizes in one of the border counties of England; and, inasmuch as it is a question which must frequently arise, we venture to hope that the Director of Public Prosecutions, whose consent is required by sect. 10 (4) to the indictment of a prisoner as a "habitual criminal,” will find an early opportunity of having the doubt settled by the Court of Criminal Appeal.

ARNOLD D. MCNAIR.

III. THE EFFECT OF WAR ON INSTALMENT

A

DELIVERIES.

CONSIDERABLE diversity of opinion exists amongst lawyers as to whether contracts which were entered into before the war with alien enemies, but which, on the outbreak of war, remained unexecuted, have, by reason of the declaration of war, been dissolved or abrogated, or whether such contracts are merely suspended.

It is contended by some-after stating that prima facie every contract must be performed-that owing to the declaration of war, the contract, having become incapable or impossible of performance, is dissolved, and in so far as such contract has already been performed, is good, but any liability on the part of the person who has to perform the contract, and so far as regards the future performance thereof, is at an end and no longer exists. This contention, however, is not applicable to contracts of a purely personal

nature.

On the other hand, others maintain that the contract is in a state of what may perhaps be described as "suspended animation" only, and that that part of the contract which has become impossible of performance by reason of the war will, immediately after the determination thereof, revive, and that the contract must hereafter be fulfilled or performed as if nothing had happened in the meantime to prevent the performance thereof.

Now, what are the rights of an English manufacturer who before the war entered into a contract here to supply a German or Austrian merchant with goods, to be delivered by instalments extending over a number of years, and which contract, in the ordinary course of events, might have come to an end during the continuance of the present war or not until after the determination thereof?

Has such a contract as before referred to been dissolved, as and from the time when war was declared, so that the manufacturer is discharged from the further performance thereof, or must he, on the determination of the war, perform the unfulfilled part or portion of the contract?

The leading case as to impossibility of performance of contracts is Taylor and Another v. Caldwell and Another ([1863], 3 Best & Smith's Reports, 2 B. 826). The facts of the case were that, by agreement dated the 27th day of May, 1861, the defendants let to the plaintiffs the Surrey

Gardens and Music Hall, Newington, Surrey, on certain specified days, for the purpose of giving a series of four grand concerts and day and night fêtes at the gardens and hall, and at the rent therein stated. The music hall was destroyed by fire, and the plaintiffs brought an action against the defendants for breach of the agreement, in that they did not nor would allow the plaintiffs to have the use of the Surrey Music Hall and Gardens according to the agreement, but wholly made default therein, etc.; whereby the plaintiffs lost divers moneys paid by them for printing advertisements of and in advertising the concerts, and also lost divers sums expended and expenses incurred by them in preparing for the concerts and otherwise in relation thereto, and on the faith of the performance by the defendants of the agreement on their part, and alleged that they had been otherwise injured. The defendants (inter alia) pleaded that, at the time of the agreement, there was a general custom of the trade and business of the plaintiffs and the defendants, with respect to which the agreement was made, known to the plaintiffs and the defendants, and with reference to which they agreed, and which was part of the agreement, that in the event of the gardens and. music hall being destroyed, or so far damaged by accidental fire as to prevent the entertainments being given according to the intent of the agreement, between the time of making the agreement and the time appointed for the performance of the same, the agreement should be rescinded and at an end, and that the gardens and hall were so far damaged and destroyed by accidental fire, as to prevent the entertainments or any of them being given, and continued destroyed and damaged until after the times appointed for the performance of the agreement had elapsed. The Court held that there was no express stipulation for the event of the destruction of the music hall by fire, and that both parties were excused from performance of the contract.

"There seems no doubt," said Blackburn, J. (p. 833), "that where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although, in consequence of unforeseen accidents, the performance of his contract has become unexpectedly burthensome or even impossible. . . . But this rule is only applicable when the contract is positive and absolute, and not subject to any condition either express or implied; and there are authorities which, as we think, establish the principle that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor." And, at p. 839, the learned judge continues, "In the present case, looking at the whole contract, we find that the parties contracted on the basis of the continued existence of the music hall at the time when the concerts were to be given; that being essential to their performance."

In Appleby and Another v. Meyers (L. R. [1867], 2 C. P. (in the Exchequer Chamber), 651), which was an appeal from a judgment of the Court of Common Pleas, in favour of the plaintiffs upon a special case, the plaintiffs contracted to erect certain machinery upon the defendant's premises, at specific prices for particular portions, and to keep it in repair for two years. The price was to be paid upon the