declares that no will or other testamentary instrument shall be held to be revoked, nor shall the construction thereof be altered, by reason of any subsequent change of domicile of the person making it. Mrs. Groos, while she was domiciled in Holland, made a will in Dutch form and language, appointing her then intended husband successor to her estate "with reservation only of the legitimate portion or the lawful share coming to my relations in a direct line, in so far as they may exist at my death, and may be competent and able to inherit from me." Subsequently she married the intended husband, and later she and he became domiciled and he became naturalised in England. On her death it was held (In the Estate of Groos, L. R. [1904], P. 269) that, as by Dutch law subsequent marriage did not revoke her will, her change of domicile could not, under sect. 3 of Lord Kingsdown's Act, revoke it. Now the question of interpretation has arisen. Her change of domicile gave her power to dispose of her personal estate absolutely. And Sargant, J., has held that, in consequence, her reservation of the legitimate portion out of the gift to her husband has no operation. Surely this is altering the interpretation of her will because of her change of domicile ? If she had not changed her domicile, would it not have been interpreted according to Dutch law? The case of In re Bridger (L. R. [1894], I Ch. 297), on which his lordship relied, seems to us, with all respect, to have no application. There the principle that a will must be interpreted as if made immediately before the death of the testator was applied. Here, a foreign will, which but for Lord Kingsdown's Act would have been invalid, is being interpreted as if it were an English will, though that Act says it must be interpreted as a foreign will.

The liking which Chancery judges have always displayed for reversing the decisions of Parliament (of which the

above decision seems to us an instance, but the most flagrant examples of which are those decisions as to secret trusts which have practically repealed the provision of the Wills Act 1837, which requires a will to be in writing) is of late tending to diminish. Thus sect. 93 of the Companies (Consolidation) Act 1908 avoids an unregistered mortgage as against subsequent creditors of the company. In In re Monolithic Building Coy., Tacon v. The Company (L. R. [1915], I Ch. 643), there were unregistered mortgages. A., with notice of these, advanced money to the company on mortgage and registered his mortgage. Astbury, J., held that since he had notice of the earlier encumbrances, sect. 93 did not apply. The Court of Appeal reversed his decision and refused to read into sect. 93 words which are not in fact there.

In re Virte, Vaiani v. De Virte (L. R. [1915], 1 Ch. 920), is a decision not quite easy to understand. There a testator, by a will executed not in accordance with the Wills Act 1837, bequeathed personalty to his heir and devised realty away from his heir. The will was effective, under Lord Kingsdown's Act, as to the personalty but ineffective as to the realty. Joyce, J., held that because it was ineffective as to the realty the heir was not put to his election and could take both under the instrument and against it. But is a will ever effective which gives away property not belonging to the testator, and is not this the commonest case of election? The decision seems contrary to Haynes v. Foster (L. R. [1901], 1 Ch. 361), which, though dissented from on other grounds (see In re Hargrove, Hargrove v. Pain (L. R. [1915], 1 Ch. 398) ), has never, to our knowledge, been criticised on this ground.

In re Ainsworth, Finch v. Smith (L. R. [1915], 2 Ch. 96), should be noted since it puts a very much needed limit

on the principles laid down in In re Horne (L. R. [1905], I Ch. 76) as to how far a trustee who has by mistake overpaid a cestui que trust at his own expense (he himself being a cestui que trust) is permitted to put the trust accounts right. And In re Goswell's Trusts (L. R. [1915], 2 Ch. 106) is also worthy of notice as showing clearly that a trust to sell converts the trust property only from the time when it imposes a duty on the trustees to sell. Conversion by trust for sale is based on the maxim that equity regards that as done which should have been done. Forgetfulness of this has led to such absurd decisions as those of Lawes v. Bennett (1 Cox, 167) and In re Isaacs, Isaacs v. Reginall (L. R. [1894], 3 Ch. 506).

J. A. S.

SCOTCH CASES.

In Carlberg v. The Wemyss Coal Co. Ltd. ([1915], I S. L. T. 412), the pursuer, the owner of the steamer St. Helens, claimed demurrage in respect of the detention of his ship at Methil. The St. Helens sailed from Gothenburg on 16th November, 1912, and arrived at Methi on the 19th, but when she arrived the bills of lading of the cargo were not forward. It appeared that it was not an unusual occurrence at Methil for the ship to arrive before the bill of lading, and that on such occasions it was the practice of shipowners to give delivery and, if they were in doubt as to the consignees' right to the cargo, they protected themselves by obtaining a bank guarantee from the consignees. On this occasion the consignees offered a bank guarantee, but delivery was refused. On the following day (20th November) an arrangement was come to under which the cargo was discharged, under reservation of the ship's lien, into waggons belonging to the North British Railway Company, and the bills of lading

(which did not impose an obligation to discharge the ship in a definite number of days or hours) arrived while the discharge was proceeding. Meanwhile a delay of over a day had been incurred, in respect of which the pursuer claimed demurrage. The Lord Ordinary (Lord Hunter) recognised that the bill of lading was the title to the goods, and that the master was not bound to give delivery if it was not produced, but he gave judgment for the defenders on the ground that, in view of the practice, the pursuer's refusal of the offer of a bank guarantee was unreasonable, and that the detention was thus due to his unreasonable conduct. The First Division adhered, but the learned judges proceeded on different grounds. The Lord President held that when the bill of lading had not reached the consignee, it was the duty of the shipowner either to land the cargo under reservation of the ship's lien, or, if that were impracticable, to discharge into the waggons of the consignees on receiving a suitable indemnity. Lord Johnston held that the pursuer was technically in the right, and that he was not bound to accept the offer of a bank guarantee, or, unless asked, to take instant measures for discharge under reservation of the ship's lien, but that in the circumstances he was only entitled to nominal damages. Lord Skerrington held that the defenders were not in breach of their contract as their sole obligation with regard to the discharge of the ship was to discharge as quickly as possible in the circumstances, and that obligation had been fulfilled. The Lord President's ground of judgment seems somewhat dangerous. It is a strong thing to say that the shipowner was bound as matter of contract to deliver in return for a bank guarantee, although it may very well be that if his refusal to deliver is unreasonable any detention of the ship should be held to have been caused by his own act. On the other hand, the time which elapsed before the cargo was discharged into the railway company's waggons was very

short-only twenty-five hours-and it is not easy to maintain that the shipowner was acting unreasonably in not arranging that matter earlier. Lord Skerrington's ground of judgment seems unexceptionable.

In Cotton's Trustees v. Farmer ([1915], 2 S. L. T. 2) the House of Lords has given a very wide construction to the exemption from Inhabited House Duty conferred by sect. 13 of the Customs and Inland Revenue Act 1878. Under the section, where a house is divided into and let in separate tenements, and any of such tenements are used solely for business purposes, the tenements used for business purposes are exempt. The House of Lords has now held that an office consisting of a single room and shut off by a door from a common passage is a separate tenement and entitled to exemption. The noble and learned Lords who formed the majority of the House affirmed the propositions: (1) That a single room may be a tenement in the sense of the section; and (2) That a door is a sufficient structural separation. (As the Commissioners had found, in fact, that the building in question was not divided into separate tenements, no escape from the generality of these propositions is possible.) It may be true, as Lord Parker says, that there is no previous case which is inconsistent with this decision, but Lord Sumner's dissent seems to be more consonant with the views which have generally been entertained on the subject.

The case of Baker v. The Corporation of Glasgow ([1915], 2 S. L. T. 45) turned on the construction of sect. 166 of the Public Health Act 1897, which enacts that any action against any person acting under the Act on account of any wrong done in or by any action, proceeding or operation under the Act shall be commenced within two months after