Schools of this description not transferred within two years from the passing of the Act, or any later date fixed by the Department, will not be entitled to further grants. With the consent of the Department, the education authority may provide new denominational schools when required. In these schools the conditions as to religious instruction will be the same as in the transferred schools. After ten years from the transfer of a denominational school, or from the provision of a new denominational school, as the case may be, the education. authority may, with the consent of the Department, discontinue the school, or convert it into an ordinary public school, not subject to special conditions as to religious instruction. When this is done in the case of a transferred school, compensation will be paid to the former trustees or their successors.

G. N. MORRISON.

EMERGENCY LEGISLATION AND WAR CASES. EARLY in 1918 a Government Committee of eminent counsel under the chairmanship of Mr. Justice Atkin issued their first report as to the meaning to be given to the phrase "end of the "war" occurring in statutes and contracts. This Committee have recently issued their second report, setting forth their interim conclusions on the question-What provision should be made by Parliament for extending in whole or in part, or shortening the period of operation of the several emergency statutes and the several regulations made thereunder? The Committee could scarcely feel themselves entitled to make a final recommendation, as some 190 statutes and 260 regulations require consideration, but they state, however

"A preliminary survey enables us to do no more than "recommend as to the provision which Parliament should make for dealing with a somewhat difficult problem of procedure. "There is undoubtedly a widespread desire, with which your "Committee agree, to terminate the abnormal regulations and "restrictions of the war period at as early a date as may be “practicable. The new situation caused by the conclusion "of armistices with all enemy Powers of so stringent a char"acter that hostilities can with difficulty be resumed raises “a new problem as during the interval between the present "time and the actual ratification of peace it will, no doubt, be desirable to terminate many of the special regulations which "were only applicable to a state of actual war. Your Com"mittee note, however, that, in the opinion of the departments, "there are few of the regulations which could be allowed to

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"terminate abruptly at the end of the war,' and in the great "majority of cases some extension is advocated either during "the period of demobilisation or till the restoration of normal "conditions, while, in some cases, permanent legislation is "desired as a result of experience. If, however, the Govern"ment accepting the views of the departments were to present "to Parliament a comprehensive measure for extending the "duration of a large number of scheduled Acts and regulations, 'Parliament would find itself quite unable to examine the proposed extensions in detail, and would probably show itself "most unwilling blindly to accept an extension en bloc.”

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Public opinion is proverbially fickle, but, so far as one can read the signs of the time, "the view of the departments," the result of a natural desire of well-paid officials to retain their jobs, will not prevail to stem the accumulating feeling of hatred of bureaucratic control which is everywhere manifesting itself. Another public document likely to be of great interest to lawyers is the report to be presented to the Air Council by the Civil Aerial Transport Committee. From a forecast of it recently published by The Times the following points are to be dealt with:-(1) The attitude to be adopted by the State with regard to national sovereignty in the air, and international questions connected with aerial transport; (2) the question of State ownership (if any) or of necessary State control and regulation of Customs, quarantine, and aliens; (3) necessary amendment of the common and statute laws as to the air covering private property, and as to compulsory purchase of land for aerodromes and landing grounds; and (4) the principles of liability for damage caused by or to aircraft. The draft is also included of a suggested Aerial Navigation Bill. Commenting on this forecast we notice that our contemporary, the Law Times, remarks, "Legislation in this direction is, of course, "imperatively necessary, and many of our preconceived notions of ownership and liability for trespass will require consider"able alteration to deal with new conditions."

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By the Courts (Emergency Powers) Act, 1917, sec. 8, the provisions of sec. 1 (1) of the principal Act of 1914 are to take effect in favour of officers and men of His Majesty's Forces in the case of moneys payable under contracts made before the officer or man joined" the Forces. It was held in Re a Debtor, 63 S.J. 83, that the date upon which an officer or man is deemed for the purposes of the Courts (Emergency Powers) Acts to have joined His Majesty's Forces is not when he first became liable to service under the Military Service Acts, but the day upon which he is required to join upon the expira

tion of his calling-up notice.

"The manifest object of the

As one of the judges observed, provision was to protect soldiers,

"both officers and men, on active service."

THE PLEADER.

Smith v. The Scottish Typograhical Association, 1918, 2 S.L.T. 151, is another of those interesting cases in trade union law which suggest wider issues than usually occur in the ordinary run of action. The facts were of a type familiar in such cases. One of the rules of the defending association was that no member should leave a regular situation without giving a fortnight's notice. In the course of a trade dispute certain employers had given a lockout notice, from which, however, they excepted foremen. The plaintiff, who was a foreman. with the firm that put up the lockout notice, gave his employers a fortnight's notice before leaving his work. This course, however, was apparently not approved by his trade union, the defenders, and they expelled him. He thereupon brought this action for declarator that the resolution expelling him was ultra vires: His case, in short, was that he had acted in accordance with the defenders' own written regulations, and that his expulsion was unconstitutional. Taken on that footing, it is difficult to see how he could fail to succeed, but the defenders pleaded that the action was excluded by sec. 4 of the Trade Union Act of 1871, which, inter alia, enacts that, "Nothing in this Act shall enable any Court to entertain any "legal proceeding instituted with the object of directly en'forcing or recovering damages for the breach of any of the "following agreements, namely:-(1) Any agreement between "members of a trade union as such concerning the conditions. "on which any members for the time being of such trade "union shall or shall not sell their goods, transact business, employ or be employed . . .; (3) any agreement for the 'application of the funds of a trade union (a) to provide bene66 fits to members." The contention of the defenders was that the action against them was instituted with the object of directly enforcing an agreement between the members as such as to the conditions on which they should be employed, and also with the object of directly enforcing an agreement for the application of the funds to provide benefits to members. the other hand, the pursuer contended that his claim was not struck at by the statute inasmuch as it was neither for damages nor for direct enforcement of the agreement contained in the rules, but was merely declaratory of membership.

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On

Sheriff-Substitute Fyfe repelled the defenders' pleas; Sheriff

Mackenzie sustained the defence, and dismissed the action; and on appeal to the Court of Session, the First Division have adhered to the Sheriff's judgment. There was certainly a strong precedent before the Court in the case of Aitken v. Associated Carpenters and Joiners of Scotland, 12 R. 1206, in which the First Division refused to entertain an action at the instance of a person who had been expelled from membership in the defending society, and in which reduction of the resolution expelling him was sought on the ground that it was brought for the purpose of directly enforcing an agreement. The view of Lord President Inglis was that the action did involve the direct enforcement of a rule of the society, and was consequently just the kind of action which the statute excluded. Another decision apparently exactly in point was Chamberlains Wharf, Limited, 1900, 2 Ch. 540. In that case a member of a trade union of employers who had been expelled for an alleged violation of a rule of the association as to the conditions on which the members should sell their goods brought an action to have the union restrained from acting on the resolution expelling him. His case necessarily was that he had not violated the rules of his society, but it was held that the action could not be entertained in respect that it was a legal proceeding instituted with the object of directly enforcing the agreement between the members as to the conditions on which they should sell their goods.

It will be observed that the statute expressly prohibits actions of damages, and actions of direct enforcement, whatever these may be. Presumably an action concluding for payment of benefits forfeited by the society on the member's expulsion would be held as expressly excluded, and the cases above referred to also hold as excluded actions of reduction (Aitken's case); injunction (Chamberlains (Chamberlains Wharf); or declarator (Smith's).

Discussing the implications of the phrase, "directly en"forcing," in Yorkshire Miners' Association v. Howden, 1905, A.C. 256, Lord Macnaghten said, "I cannot think that the Legislature intended to strike at proceedings for directly enforcing certain agreements, leaving untouched and un"affected all proceedings (other than actions for damages) de"signed to enforce these particular agreements indirectly. To "forbid direct action in language that suggests that the object "of the action so forbidden may be attained by a side wind seems to me somewhat of a novelty in legislation. That opinion is amply justified by the cases mentioned and by others. The result appears to be that for expulsion from a trade union,

however unconstitutionally done, a member has no remedy. Did the Legislature intend that? If it did, then trade unions have been placed in a position given to no other body. The most powerful corporations have had their actings cut down as ultra vires, but the smallest trade union may, according to the cases cited, trample on the constitutional rights of its members with impunity. We should be slow to think that such is British law, and the judgment in the Court of Appeal in the second Osborne case (Osborne v. Amalgamated Society of Railway Servants, 1911, 1 Ch. 540) gives ground for hoping that when the opportunity presents itself the House of Lords may decree otherwise. In that case the plaintiff alleged that he had been unjustly expelled from the defendant society as a punishment for his having successfully invoked the aid of the Courts to prevent the application of the funds of the society to illegal purposes. He asked restoration to membership, and he got it, Lord Justice Fletcher Moulton observing that sec. 4 of the Act of 1871 "affords no bar to any party "who claims to be interested in contracts which are legally "valid coming to the Courts to obtain a pronouncement there"under." Now an action of declarator is the typical and convenient form by which under Scotch procedure questions of disputed right are submitted to the Court for its judgment.

Obituary.

At Glasgow, on 7th December, Mr. William Gibson, solicitor, aged seventy years. Mr. Gibson, who was a native of Ayrshire, qualified as a law agent in 1873, and was for some time a partner with the late Mr. William Cook, carrying on business under the firm-name of Messrs. Gibson & Cook. He afterwards practised on his own account until 1908, when he assumed as a partner Mr. John M'Fadzean. Mr. Gibson was for about thirty years prior to 1907 Vice-Consul of the United States of America at Glasgow.

At Glasgow, on 9th December, Lord Kyllachy, aged seventysix. Mr. William M'Intosh (Lord Kyllachy) was born in Inverness, and was educated at the Academy and the University, Edinburgh. Before passing to the bar he spent a year or two in the office of Messrs. Gibson, Craig, Dalziel, & Brodie, W.S., Edinburgh, succeeding Mr. J. B. Balfour (afterwards Lord President Kinross) as Assistant Parliament House Clerk. In 1865 he was admitted a member of the Faculty of Advocates, and from the first was a busy junior. He became Dean of the Faculty in 1886, and in 1889 he was raised to the bench, with the title of Lord Kyllachy, a title drawn from the estate of Kyllachy in Inverness-shire, which he acquired in

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