intention to infringe the provisions of the Act, and it was sufficient that the appellants had shown that they had no intention to infringe its provisions.

In

Impossibility of performance may appear on the face of a contract, or may exist unknown to the parties at the time of making it, or may arise after a contract is made. But the last-mentioned impossibility does not, as a rule, excuse the party charged from performance of this contract. the old case of Paradine v. Jane (Aleyn 26), the plaintiff sued the defendant for rent due upon a lease. The defendant pleaded in substance that the rent was not due because, through the invasion of the realm by Prince Rupert, he had been deprived by events beyond his control of the profits from which the rent should come.

But the Court held that this was no excuse; "and this difference was taken that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. but when the party, by his own. contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." To this general rule there is a group of exceptions, one of which is that legal impossibility, arising from a change in the law of this country, exonerates the promisor. In Wilson v. Durham (35 L.J. 435) defendants let premises to the plaintiff for three years, and agreed, at the expiration of that time (in the event of a certain notice being given by the plaintiff, which was done) to grant the plaintiff a new lease of the same premises for 21 years, and further agreed, in the event of the notice being given to raise the messuage by the addition of one story, and make other structural alterations. During the above term of three years a fire des

troyed these premises, as also the adjoining premises occupied by the defendants. There was no breach of the agreement before the fire, but it was impossible for the defendants to rebuild the plaintiff's premises according to the agreement, because of certain alterations in the byelaws of the District Council. Cozens Hardy, J., held that the argument of the defendants-that no damages could be given in an action for specific performance of an agreement which was rendered impossible-was not tenable; but found that there was no repudiation by the defendants of the contract, that time was not of the essence of the contract, and that there was an implied condition that the premises occupied by the defendants should be standing at the time of the proposed new addition. The action was, therefore, dismissed.

That case involved the same principle which was decided in Nickoll and Knight v. Ashton, Edridge and Co. (109 L.T., 60), and which we referred to at p. 495 of Vol. XXV., where Mathew, J., held in the case of a ship stranded in the Baltic without fault on either side, and so damaged that she could not reach the Egyptian ports during the month of January to receive cargo according to contract, that it was an implied term of the contract that if the ship did not reach the loading ports during January in a fit state to receive the cargo, the contract, having become impossible of performance, should be treated as at an end. But in the above case of Wilson v. Durham, Cozens Hardy, J. does not appear to have sufficiently considered (if it were brought to his attention), the case of Baily v. Crespigny (L.R. 4 Q. B. 180), where it was held that an impossibility created by Statute excuses a party from the observance of a covenant. As a District Council's byelaw is, in fact, a development of a Statute, and created thereby, it is difficult to reconcile his dictum with the decisions of older cases. No substantial

grievance was however done, as he arrived at an appropriate conclusion by another road.

The Prevention of Cruelty to Children Act, 1894 (57 and 58 Vict., c. 41), enacts (s. 1) that "if any person over the age of 16 years who has the custody, charge, or care of any child under the age of 16 years, wilfully assaults, illtreats, neglects . . . such child . . . that person shall be guilty of a misdemeanour." In Ottley v. Fenn (109 L. T. 175), a Mrs. H. was living with the defendant Fenn; she had several children by her husband, and these children lived with the unmarried couple. An information having been laid against this couple, under the above Act, for neglecting the children, the justices convicted Mrs. H., but dismissed the case against Fenn, thinking that the paramour of the mother was not a person having the "custody, charge, or care" of the children within section 1 of the Act. The Divisional Court (Grantham and Channell JJ.) held, on a case stated, that when a man and woman are married, the husband is ipso facto the person who has the custody, &c., of the children, and proof alone of neglect of the children is required; but when the parties are not married evidence is required, firstly, that the man in fact has the custody, &c., of the children, and, secondly, that he did neglect them. This interpretation of the section is obviously very sound, and determines an intricate point.

SHERSTON BAKER.

109

Reviews.

[SHORT NOTICES DO NOT PRECLUDE REVIEWS AT GREATER LENGTH IN SUBSEQUENT ISSUES.]

The Law and Practice of Rating. BY WALTER C. RYDE. London: Shaw & Sons. 1900.

This is an important work on an important subject. With a Quinquennial Valuation in progress, the subject is painfully important to many of us, who are being subjected to the operation. of having our valuations "screwed up," in order that Public Bodies may be enabled to spend increased sums on various objects, which they consider for the public welfare, without at the same time appearing to increase the burdens of the unfortunate ratepayer by raising the rate in the pound. There is probably no person better qualified, both by ability and experience, than Mr. Ryde, to treat this subject adequately, and he has produced a remarkable book. It is remarkable in two ways, first for the enormous amount of conscientious labour which it displays, and secondly for the courage of his opinions which Mr. Ryde manifests. His treatment of the case law, and after all, the law of rating is mainly case law, is both masterly and exhaustive. One feels convinced that every case cited has been read and considered, both from the point of view of principle, and that of comparison with the cases decided before and after it. This is a feature of the work which will, we think, render the book particularly valuable to practising lawyers, as, even when a case is cited as a definite authority for a proposition, reference is always given to any other case which may seem to shake or qualify it, and to those parts of the judgment which are not, in the author's opinion, sound. The book is divided into two main parts, namely the Law, and the Practice. The former commences at the very beginning of the subject with "the persons liable to be rated." The Law of Rating is peculiar in many ways, and the hypothetical tenant is a creation of the law, whose habits of occupying property of various sorts,and carrying on gigantic businesses on a somewhat insecure tenure, strike us as somewhat remarkable; but what must impress anyone after perusing Mr. Ryde's work is the uncertain state of the law on so many important points, both of law and practice. Mr. Ryde is too experienced and conscientious an author to allow his modesty to induce him to profess a

doubt where he does not feel it, but again, and again, he has to use expressions like "the law is not clear," or "it is doubtful ' or "it is difficult," and after examining the cases we agree with him. As an instance, we see that the difficulty commences at the very root of the subject, which is "occupation." Mr. Ryde only makes "an attempt" to explain it, and quotes the judgment of Lush J. in R. v. St. Pancras. "It is not easy to give an accurate and exhaustive definition of the word 'occupier,'" and the definition ultimately given is that from Clark and Lindsell on Torts, "a de facto possession, that is to say, actual physical prehension of the particular portion of the soil, to the substantial exclusion of all other persons from participating in the enjoyment of it." It also would seem that in spite of the decisions in the Mersey Docks and other cases, the positions of reformatories and industrial schools are not quite clear, nor that of property maintained for civil purposes out of public money. We could also wish for a little more certainty on the subject of "Tolls." Beneficial occupation is fully treated, and the fallacy is pointed out that runs through so many of the earlier decisions" that the receipt of a profit is essential to the existence of rateability." Though the fallacy was very much shaken by the decision of the House of Lords in the Mersey Docks case, it was only finally exploded by the decisions in R. v. School Board for London; Mayor, etc., of Burton-upon-Trent v. Burtonupon-Trent Union and London County Council v. Erith and West Ham. These cases illustrate the important fact that the thing to remember in considering the rateability of property is, whether it is of value to the occupier, not whether it is profitable to him. With this principle Mr. Ryde is saturated to the very bone, and to this he owes much of his thorough grasp of his subject. We would like particularly to call attention to the discussion on the well-known term "struck with sterility." It is so often misapplied, that a clear and searching analysis of what the term really means is very valuable. We agree with Mr. Ryde in his remarks on the London County Council's Sewers Cases, and are unable to draw a distinction as regards rateability between sewers above ground and under ground. Another difficult subject well treated is as to when evidence can be given of the occupier's profits, a subject peculiarly connected with public houses. Some of the difficulties of rating law may, perhaps, be traced to the remarkably little assistance rendered by the Legislature. We doubt whether there is any other branch of law of equal importance, as to which so little legislation has taken place. All this, too, in spite of the difficul