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It was also agreed that the traction company should pay £1,250 private property, and so are outside the sphere of duty of the to the chairman and £500 to each of the directors of the tram- police. "It therefore becomes the duty of the companies to proway company, as compensation for loss of office. The purchase vide reasonable protection to their passengers against this very price was originally fixed upon the supposition that the direc- serious danger. We are far from saying that the particular tors would be retained in their offices by the traction company, company concerned in this case is more backward than other and the compensation was introduced when this plan was companies in recognizing their duty. We believe that, in proabandoned. The agreement was expressly made conditional portion to the length of line it is answerable for, the District upon its being adopted by the shareholders of the tramways Railway Co. affords its passengers quite as much protection as company. An extraordinary general meeting of the tramways any other company, though it has been unfortunate in its choice company was summoned for the purpose of considering and, if of a servant. At the same time, probably every company might thought advisable, approving the terms of the agreement, but do somewhat more towards detecting thieves and removing from the notice said nothing about the proposed payment of compen their minds the not unjustifiable idea that a railway is a happy sation to the directors. Reference was made to this, however, hunting ground. The accomplice in this case admitted, when in a circular sent out by the directors enclosing a form of proxy. before the magistrate, that he had “worked” every railway in At the meeting the agreement was confirmed by a large England, that this has been going on for sixteen years, and that majority, and a dissentient shareholder thereupon. sought to he has many friends in the same business. Yet he has up to restrain the directors from car ng it out on the ground that the now escaped a sentence of penal servitude. This reveals a state agreement was ultra vires, and also on the ground that the notice of things which calls for energetic and concerted action by the convening the meeting did not sufficiently disclose the real companies. terms of the agreement. KEKEWICH, J., decided in favour of the plaintiff on both grounds, but the Court of Appeal declined to hold that a contract under which the directors secure an ad

THE CASE of London and North-Western Railway

Co. v. vantage for themselves is necessarily ultra vires, though VAUGHAN

Donnellan, previously referred to in these columns (ante, p. 359), WILLIAMS, L.J., intimated that, while not ultra vires, the matter recently came before the Court of Appeal (ante, p. 449), when the might still be one in which the majority would have no power

judgment of the Divisional Court was reversed and that of the to bind the minority. The possibility of such a contract is a disputed claim to rent, made by the plaintiffs against the

The possibility of such a contract is county court restored. Shortly, the point involved was whether shewn by the case of Southall v. British Mutual Life Assurance defendant, in respect of trucks left standing on railway sidings Society (19 W. R. 865, L. R. 6 Ch. 614), where also it was stipulated that payments should be made to the directors of the action in the county court, or whether the sole jurisdiction to

belonging to the plaintiffs, could be made the subject of an selling company. But as the Court of Appeal held the potice determine it was not given to an arbitrator by the London and convening the meeting to be insufficient, the question of ultra North-Western Railway (Rates and Charges) Order Confirmavires was not material. By section 71 of the Companies Clauses tion Act, 1891 (54 & 55 Vict. c. ccxxi.), which, by section 5. of Act, 1845, the notice convening an extraordinary meeting must the schedule of maximum rates and charges, appended to the specify the purpose for which the meeting is called. But a Act, provides that, “ Any difference arising under this section shall notice that an agreement for the sale of the property of the be determined by an arbitrator, to be appointed by the Board of Trade company is to be considered, does not intimate that a part of at the instance of either party." the purchase-money is to be diverted from the company into the and DARLING, JJ.) it will be remembered, were of opinion that

The Divisional Court (WRIGHT pockets of the directors, and upon this ground the agreement the case was one of express contract to pay siding rent, of which was referred back to the shareholders. Clearly any arrange

an actionable breach had been committed, and that the above mont whereby the directors make special terms for themselves requires to be brought clearly before the shareholders before it provision as to arbitration was inapplicable, its operation being, can be taken to be approved.

it was considered, limited to cases where the sole question in

In the present instance the shareholders at the subsequent meeting declined to give their dispute was the reasonableness of the amount of the charges

made by the railway company.

The Court of Appeal (A. L. approval.

Smith and Chitty, L.JJ.), in reversing this decision, stated

that no such limitation as that suggested could, without violatFORTUNATELY FOR the travelling public, cases at all parallel above-montioned words of section 5, which' instead of being

ing well-recognized canons of construction, be given to the to that of Reg. v. Ostime, which has recently occupied four days restricted to the reasonableness of the charge made by the railat the Old Bailey, are very rare. It was proved at this trial that the prisoner, who was a detective in the employ of the arbitrator for his award all matters which were material to the

way company (the plaintiffs) extended to and referred to the Metropolitan District Railway Co., had been in league with a decision of the difference arising under section 5, whatever that gang of pickpockets who infested the line. These miscreants, difference might be. This judgment of the Court of Appeal is, against whom it was his duty to protect the passengers, this we venture to think, fully justified by the language of the enactdetective used to screen and help in every way, and naturally ment in question, which, as we pointed out on a previous page for such services he received a substantial share of the profits. (p. 359), certainly seems to contemplate resort to arbitration, At last, however—as was bound to happen sooner or later—his whatever the cause of difference may be. own safety obliged him to give up one of his friends, and this friend, in rovenge, betrayed him. The betrayer is a trained and experienced thief of the most dangerous clase, one of those men who do not oven profess to have any intention of gaining THE DECISION in the long-drawn-out case of Lagunas Nitrate an honest living. No jury would convict, and no judge would Co. v. Lagunas Nitrate Syndicate (reported elsewhere) is of permit the conviction of, any man upon the evidence of such a considerable public importance, and, though its interest is witness without most ample corroboration. It is now well mainly commercial or financial, the judgment contains a useful established, although in strict law it is not essential, that the summary of the law as to directors' liability for non-fraudulent testimony of an accomplice must be confirmed by some other breaches of duty, and illustrates the comparative immunity of evidence in order to convict an accused person. Such confirma- directors acting intra vires and in good faith from legal responsitory evidence, also, must be untainted evidence. That of bility for negligence. The plaintiff company sought rescission another accomplice will not do, nor that of the wife of an of a contract for purchase from the syndicato of certain nitrate accomplice. In OSTIME's case, however, there was the most fields and works on the ground of misrepresentation, and ample corroboration of the pickpocket's tale. In fact, he damages against the syndicate and directors, who were interested might have been very safely convicted without putting the in the syndicate, for alleged breaches of their duty as directors accomplice in the witness box at all. No doubt the directors of the company. The decision turned on the effect of a vast of other railway companies will note this case carefully and body of evidence, which was exhaustively dealt with in the learn several lessons from it. Railway stations and carriages judgment of ROMER, J., and, fraud not being charged, the court afford to pickpockets exceptional opportunities for plying their held that the claim for rescission failed. The case is an illustration trade, On the other hand, the premises of the companies are of the extreme difficulty of establishing a claim for rescission apart

from fraud : cf. Kennedy v. Panama, ge., Mail Co. (15 W. R. appear in the land certificate, and should be useful to bankers 1039, L. R. 2 Q. B. 580) referred to by ROMER, J. The en- advancing money on mortgage by deposit. Pieces of land may dicate was not entirely successful, but the finding of the be added to or removed from a title (rule 4). The functions of court was in their favour as to all except two of the the proprietorship register are to show who is the proprietor many particulars charged against them, in respect of which and to disclose any cautious inhibitions or restrictions affecting an inquiry as to damages was ordered, and the judgment his right of disposition (rule 6). The function of the charges went on the footing that the company substantially received register is to disclose incumbrancos. Notes as to the ownership what they bargaiged for under tho contract for sale and pur- of the mices and minerals and as to easements profits à prendre chase, As to the directors, fraud not being charged, the and as to restrictive covenants are to be entered in the property question was whether they could be made responsible on the register. It should be observed that section 82 of ground of negligence. ROMER, J, referred to the discussion of the Act of 1875, as amended by the Act of 1897, degrees of negligence by Lord CHELMSFORD in giving the judg-enables the burden of restrictive covenants to be ment of the Privy Council in Giblin v. AlcMullen (L. R. 2 P. C. annexed to registered land, but there seems to be no provision 317, at pp. 336, 337), and pointed out that directors were only in the Acts to enable the registration of the benefit of a responsible for crassa negligentia : Orerend, Gurney, f. Co. v. restrictive covenant. Now, by rule 3 the benefit of a Gibb (L. R. 5 H. L. 480). The action as against the directors restrictive covenant may be entered in the property register, was dismissed, the court concluding that there had been no although it would seem it would not pass by registered disnegligence of a kind for which directors could be held liable by position unless expressly mentioned in the instrument of action to their company.

transfer : see Renalv. Cowlishaw (9 Ch. D. 125, 11 Ch. D. 866), Spicer v. Martin (14 A. C. 12). In districts where registration of title is compulsory, the register is to be bound in volumes

according to parishes (ruleg). A useful provision, and one THE LAND TRANSFER RULES.

which we hope will be encouraged by the officers at the Land

Registry, is that enabling a landowner to have his title bound I.

in a separate volume (rulo 11). Provision is also made for an The Land Transfer Rules are divided into five parts and two index map and a list of pending applications, which are to be schedules. Part I. deals with the register, Part II. with first open to the inspection of the public (rules 12-14). registration, Part III. with registered dealings with registered Part 11.- First Registration.--Possessory title. --Application for laud, Part 1V. with minor entries in the register, and Part V. registration with a possessory title is to be accompanied by with miscellaneous provisions. The rules commence with inter- either the conveyance on sale to the applicant or a statutory pretation clauses, and the first schedule contains forms for use declaration of possession accompanied by the latest document of under the Acts, while the second schedule deals with the re- title in the poesession or under the control of the applicant muneration of solicitors.

(rule 17). If the application is by a purchaser, the consent in We propose in these articles to offer a few remarks on some of writing of the vendor is to accompany (ib.). A purchaser was the salient features of each part of the rules. Regarding the empowered by section 5 of the Act of 1875 to apply for registrarules as a whole it should be observed that the scope of the tion without taking a conveyance, but we regret to see the power Acts is very much extended by them, inasmuch as the machinery retained, as it seems to us that a purchaser who registers withfor the registration of leasehold property set up by the Act of out taking a conveyance does not obtain the legal estate. The 1875 is repealed and replaced by provisions enabliog registra- legal estate would in such a case be paramount to the fee simple tion of leasehold property with absolute, qualified, and posses-conferred by registration (see section 8 of the Act of 1875), and sory title (rules 43.57), and the compulsory provisions of the a subsequent purchaser could require an abstract of title to it Act of 1897 are extended so as to cover leasehold property (see section 16(1)(v), of the Act of 1897. Moreover, the omission (rules 58 and 59).

to take a conveyance would leave a link in the title, which is We believe this to be the first occasion on which portions o unaffected by registration, to be accounted for, and would bring an Act of Parliament have been repealed by rule; we are, the contract for sale on that title. Incumbrances need not be however, far from finding fault with the Rule Committee for disclosed on first registration with a possessory title (rule 18), having adopted this course, and could only wish that they had but if disclosed they will be noted in the charges register. The felt themselves at liberty to use their powers in this direction registrar is not, however, to investigate the title (ib.). upon a larger scale, so that much of the now superfluous matter

We conceive that the practice will be to make a very comin the Act of 1875 might have been eliminated and the task of plete statutory declaration as to the title, so that it may in a the would-be interpreter of the Acts and rules thus greatly comparatively short time be made the root of titlo by conditions facilitated. In addition to those points to which we referred in of sale. our preliminary article (p. 446) we wish also respectfully to Provisions are made for endorsing notice of registration on draw the early attention of the Rule Committee to what appears title deeds (rules 20 and 21). to us to be an oversight-namely, that no provisions have been

he lectus urnegance herunt egesler ligel Gal she made by the rules for a valuation under section 4 of the Act of

Ad. isay 5.20 1897. The necessary power to make rules under that section is, we submit, supplied by section 22 (6) (c) of the Act of 1897,

TIED HOUSES. and, in the absence of a rule on the subject, the provisions for appropriation of real estate under the Act of 1897 in satisfaction The Court of Appeal have reversed the decision of BYRNE, J., of a legacy or share of residue seem to be incapable of being have removed the difficulty which that decision would have

Birmingham Breweries (Limited) v. Jameson (46 W. R. 375), and exercised. We should also like to point out that the power to grant a proper effect of a covenant which constitutos a public-house a

caused in construing covenants in leases of tied houses. The new land certificate on a sale by a chargee given by section 8 tied house is to require the lessee to purchase the liquor to (4) of the Act of 1897 does not apply on a foreclosure. The be consumed on the demised premises from the lessor or pɔwer should be added to rule 107. Notwithstanding that the his successors in business, and the losseo, if he is well order for foreclosure will probably direct that the chargor is to advised, will not consent to a covenant which binds him to hand over his land certificate, if it was retained by him, yet it purchase from an assign of the lessor who does not carry will not be always possible to find the chargor, and an un- on his business, and who may not perhaps carry on a brownecessary difficulty would thus arise.

ing business at all. The former effect was given to the Part 1.-The Register.—The register is to be sub-divided into covenant, which had to be construed in Doe v. Reid (10 B. & three registers, to be called respectively the property register, C. 849). There the lessee covenanted to take liquor from the the proprietorship register, and the charges register (rule 2) lessors, “their executors, administrators, or assigns, or their The principal function of the property register is to give the successors in their late or present trade of brewers." The description of the land (rule 3). There is also to be a statement lessors sold their business and also the demised promises to of the value of the land in this register. This value will also third persons, who removed the plant to another brewery two

miles distant, and claimed to be entitled to take advantage of executors, administrators, and assigns." The reversion the covenant. It was held, however, that the lessors' business expectant on the lease was assigned in 1894 by Hood to the had been determined and that the purchasers therefore were Midland Brewers Auxiliary Co. (Limited), who, in May, 1896, not entitled to rank as their successors in business. The suc- assigned it to the plaintiff company. Messrs. Hood & Sons cessors of any party in business, said BAYLEY, J., are they who continued to carry on business as before at the Nechells carry on the same business in the same place. It was assumed Brewery. The defendant, who was the assignee of the lease, that the term "assigns," as used in the covenant, was to be pleaded that he was ready and willing to purchase from Messrs. limited by the words which followed, so as to bind the lessee to Hood & Sons so long as they were willing to supply him, but take liquor, not frem assigns generally, but only from assigns he contended that he was under no obligation to purchase from who were successors in trade of the lessors.

the plaintiff company. In v. Hands (38 W. R. 433, 45 Ch. D. 503) there was The case was a stronger one for the defendant than Do: v. no such restriction to the lessors' successors in business. Sub- Reid inasmuch as the original business was still being carried stantially the covenant was with the lessors and their assigns, on, and hence, even if the business was capable of being transand a wider effect was given to it. The covenant bound the ferred to other promises—which was denied in that caso—there lessee not to deal in liquors "other than such as shall have had certainly been no such transfer. Moreover, on the covebeen bond fide purchased of the said lessors, or from them or nant, as it stood in the lease, the lessee was bound to take the either of them, either alone or jointly with any other person or liquors onig from the lessor, or the firm of Hood & Sons, or persons who may hereafter become a partner or partners with his or their successors in business. Within these words, taken them or either of them." The term lessors" was defined in by themselves, the plaintiff company could not be brought. the lease to include the lessors and their heirs, executors, Mr. Justice BYRNE held that the extension specified in the definadministrators, and assigns. The lessors sold their' business to ition clause ought to be introduzed into the covenant so as to a brewer carrying on business at a different brewery, and bind the lessee to take liquors from Hood, or his assigns, or his assigned to him the demised public-house and the benefit of the firm of Hood & Sons, or his or their successors in business. above covenant. About the same time they dissolved partner- What would be the effect of a covenant in this form it is very ship, and their brewery was shut up. Under these circum. difficult to say. Apparently the learned judge thought taat stances it was held by the Court of Appeal that the purchaser, any of the persons mentioned could enforce it, and that they although not carrying on the business of the lessors, was entitled must arrange between themselves which of them was to supply to the benefit of the covenant. The covenant was not in its the beer. " The covenant here,” he said,." is with the lessor, nature personal, like a contract by an artist to paint a picture, his administrators and assigns, and they can all enforce it, and 80 as to be incapable of assignment, and the parties had omitted dictate to the tenant of whom the beer is to be taken." Such the express restriction to successors in business which occurred an arrangement, it is obvious, would be highly inconvenient, in Doe v. Reid. The case, said LINDLEY, L.J., was important and it can hardly be supposed that the lesseo contemplated anyboth to brewers and to tenants who take tied houses, because it thing of the kind. The Court of Appeal have rejected this was a startling thing to anybody to be told that when he had construotion, and have excluded


definition clause agreed to buy beer of a particular brewer, he might find him from the covenant. The meaning of the covenant, in the self bound to take beer from someone else. However, the opinion of LINDLEY, MR, was plain. It was that the matter depended upon the contract between the parties, and lessee was to buy exclusively the beer of the Nechells browerysuch was the result of the contract in the particular case.

that is, he was to buy from the lessor or his successors in busiThe judgments in Clegg v. Hands did not profess in any way poss. The result would have been the same had the court to overrido Doe v. Reid, and it follows from the two decisions introduced "assigns ” from the definition clause, and then that a covenant in a lease of a tied house which binds the lessed restricted its effect, as in Doe v. Reid, to such assigns only as to purchase liquor from the lessor and his assigns generally,

were successors of the lessor in business. As already pointed will be freely assignable, and the only restriction is that the out, in Clegg, v. Hands the reference to successors in business assign of the covenant should be in a position to supply the was omitted, the word “assigns” was adopted from the liquor under it. Usually the lease contains a proviso as to the definition clause, and the covenant consequently extended to quality of the liquor to be supplied, and even if it does not, it assigns generally. But this is carrying it further than in the

interests of the lessee it should be allowed to go.

It appears does not supply liquor of a proper quality (see per Fry, J., in from the present decision that where the covenant refers, as it Edwick v. Hawkes, 18 Ch. D. 207). In Clegg v. Hands the ought to do, to successors in business, the tendency will be to covenant was subject to the proviso that the lessors or the other give it its natural effect, and to bind the lessoo to take beer parties affected should deal in and vend the specified liquors, only from the particular brewery in contemplation at the date of and be willing to supply the same to the lesse0 of good quality

the lease; and an extension, for the general purposes of the and at the fair current market price; and under these words it lease, of the term "lessor” to include assigns will not alter this

result. was held that it was not necessary that the assigas should themselves make the liquors. They could satisfy their obligation under the covenant by purchasing the liquors and re-selling to the lessee. On the othər hand, it is perfectly competent for the

REVIEWS. lessee to prevent the free assignment of the benefit of the

EMPLOYERS' LIABILITY. covenant by restricting it to such assigns of the lessor as aro THE WORKMEN'S COMPENSATION Act, 1897. With Copious NOTES also his successors in his business, and then he can only be AND AN APPENDIX CONTAINING THE EMPLOYERS' LIABILITY ACT, required to take liquor from the identical brewery or business 1880. By W. ADDINGTON WILLIS, LL.B., Barrister-at-Law. which he had in contemplation when he entered into the lease. FOURTH EDITION. WITH ANALYSIS OF A PROPOSED SCHEME TO In Birmingham Breweries (Limited) v. Jameson the covecant,


CERTIFICATE. Butterworth & Co.; Shaw & Sons. 80 far its actual terms went, referred only to the lessor and his successors in business, but the definition clause defined “lessor " EMPLOYERS' LIABILITY UNDER THE WORKMEN'S COMPENSATION ACT, to include assigns, and the question arose how far the definition

1897, AND THE EMPLOYERS' LIABILITY ACT, 1880. By ARTHUR overrode the apparently restricted scope of the covenant. The

ROBINSON, B.A., Barrister-at-Law. Stevens & Sons (Limited). lessor was ALFRED Hood, described in the lease as of “The THE LAW AND PRACTICE RELATING TO WORKMEN'S COMPENSATION Brewery, Nechells, Birmingham.” The losseo covenanted that


EMPLOYERS' LIABILITY ACT, 1880; THE WORKMENS' COMPENSAhe would during the term "deal exclusively with the lessor, or

TION ACT, 1897; THE MATERIAL SECTIONS OF TIIE FACTORY AND his firm of Messrs. Hoop & Sons, or his or their successors in

WORKSHOPS ACTS, 1878 TO 1895 ; AND LORD CAMPBELL'S Act. business for all beers, ales, porter, stout (except bottled stoui), By W. ELLIS HILL, M.A., Barrister-at-Law. Waterlow & Sons and other like articles, which shall be sold or consumed upon (Limited) the said hereby demised premises"; and the lease contained

In these works lawyers and others who are interested in the a declaration that, where the context allowed, the term scheme of compensation to workmen which is shortly to come into “ lessor" should include, “besides the said ALFRED HOOD, his force under the Act of 1897 will find ample guidance. Mr. Willis's

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book, which has already reached a fourth edition, is well adapted for general use. The Act is printed in a convenient form, and full and

CASES OF THE WEEK. carefully-prepared notes are appended to the various sections. As an instance we may mention the note to section 1 (2) (1) upon the

Court of Appeal. effect of the Act on the existing rights of the workman agvinst his employer, and the list under section 7 (2) of the places which are

9th May.

BIRMINGHAM BREWERIES (LIM.) v. JAMESON. No. 2. factories for the purpose of the Act, and to employment in which, Brewer's LEASE—Tied House-CovenANT TO BUY FROM LESSOR OR His therefore, the Act applies. A matter of special importance is the


LEASE. feasibility of establishing schemes which will be accepted by the Registrar of Friendly Societies in lieu of the compensation given by This was an appeal from a decision of Byrne, J. (ante, p. 264). the Act. Mr. Willis deals fully with this point, and gives, so far as The facts were as follow: The lessee of a beerhouse covenanted with his can be ascertained at present, the requirements of the registrar. His lessor “ that he the lessee, his executors, aduninistrators, and assigns, and analysis of suggested rules for such a scheme will also be found all other persons for the time being carrying on the business of a beer. useful.

retailer or publican upon the said premises will and shall during the said The other two works mentioned abore are wider in scope, in that of Messrs. Hood & Sons or his or their successors in business for all beers,

term of years hereby granted deal exclusively with the lessor or his firm they treat in detail of the Act of 1880 as well as the Act of 1897. In &c." There was also an interpretation clause that “where the context annotatiog the Act of 1897 Mr. Robinson has in the main confined. allows" the expressions "lessor” and “leesee" should include their himself to explaining its intended effect by reference to speeches respective executors, administrators, and assigns. In 1894 the lessor made during its passage through Parliament. The Act of 1880 is assigned the reversion to a company who assigned to the plaintiffs. naturally treated with reference to the decided cases, and the effect Messrs. Hood & Sons were still carrying on their business. The defendant, of these is concisely stated. A special feature of the book is the list, who was the assignee of the lease, declined to buy from the plaintiffs on

successors in business" of Messrs. illustrated by decided cases, of the defences wbich can be set up in the ground that they were not the " actions brought under the Employers' Liability Act, 1880.

Hood & Sons. The plaintiffs songht an injunction to enforce the

covenant. Byrne, J., held that by virtue of the interpretation clause the The work by Mr. Ellis Hill is not confined to annotating words executors, administrators, and assigns should be inserted into the the Acts. The relevant Acts are printed in the appendix, and covenant and that the covenant ran with the reversion, and granted the the body of the work is devoted to a detailed examination of injunction. The defendant appealed. the law of the liability of an employer for accidents to his THE COURT (LINDLEY, M.R., and Rigby and COLLINS, L.JJ.) allowed workmen. The first chapter, dealing with the liability of the the appeal. employer at common law, states the crigin of the doctrine of LINDLEY, M.R.- This is not a very clear case, and I am not surprised common employment in Priestley v. Fowler (3 M. & W. 1), and that Byrne, J., felt some doubt in deciding it. In some respects it is very gives at soule length the developments given to the doctrine in like Clegg v. Hands (38 W. R. 433, 44 Ch. 0.503), and in some respects it the various cases in the House of Lords. Subsequent chapters treat is very like Doe.v. Reid (10 B. & C. 849). But what we have to find out is of the Act of 1880, the Factory and Workshop Acts, Lord Campbell's struction to be placed on the lease now before us. We are asked by the Act, the doctrines of negligence, contributory negligence, and the respondent's counsel to ineert after the word lessor in the covenant the maxim volenti non fit injuria, and the practice in an action under the words "his executors, administrators, and assigns” by virtue of the Act of 1880, and the final chapter explains the Act of 1897. The interpretation clause. I see no reason for doing that. The context does print of the Act of 1880 in the Appendix is preceded by a digest of not require it. If we do insert it we convert a clause which is reasonably the cases decided upon it. The book presents a careful examination plain into one which would be difficult to understand. This construction of an important and difficult subject.

of the lease would also produce a great deal of mischief. It is plain that the intention of the covenant was to protect the lesscr's business. There is no difficulty about it if you take that view, but otherwise it is extremely embarrassing. The context here does not allow of the

insertion of the words "executors, administrators, or assigns.” The BOOKS RECEIVED.

covenant is with the lessor and his successors in business, not with his The Yearly Abridgment of Reports : Being a Full Analysis of all executors at all, unless, of course, the executors happen to carry on the Cases Decided in the Superior Courts during the Legal Year 1896-7, business. I will say nothing about Clegg v. Hands and Doe v. Reid except so far as Reported to the end of December, 1897, in all the Reports, this, that the problem which the court has to deal with here is distinct together with a Selection from the Scotch and Irish Reports, pre- from that which was before it in Clegg v. Hands. There the lessor had ceded by Complete Lists of all Cases, Statutes, and Rules Cited, and not severed the business from the reversion. Again, Clegg v. Hands does concluding with a Copious Index to Points of Law Considered... By will be found rather nearer Doe v. Reid than Clegg v. Hands. But it is not

not overrule Doe v. Reid, and if we compare the cases the present case ARTHUR TURNOUR MŪRRAY, B.A. (Oxon), Barrister-at-Law. Butter

necessary to discuss that. The appeal must be allowed with coste. worth & Co.

Rigby, L.J., delivered judgment to the same effect. The Law of Licensing in England, so far as it relates to the

COLLINS, L.J., concurred. -COUNSEL, Lawrence, Q.C., and Douglas ; Retail Sale of Intoxicating Liquors and to Theatres and Music Dunham. SOLICITORS, Harman, Ward, ó Co., for Lane, Clutterbuck, g Co., Halls. With a Full Appendix of Statutes and Foring. By John Birmingham; Hurrell & Co. BRUCE WILLIAMSON, Barrister-at-Law. William Clowes & Sons

[Reported by J. I. STIRLING, Barrister-at-Law.] (Limited)


No. 2.

29th The Science of Law and Law-making : Being an Introduction to

April. Law, a General View of its Forms and Substance, and a Discussion CHARITABLE Trusts—CHURCHWARDENS—ANTICIPATING PARISH INCOMEof the Question of Codification. By R. FLOYD CLARKE, A.B., LL.B., ADVANCE FOR Parish PURPOSES --Right to INDEMNITY—“SALE, MORTof the New York Bar. The Macmillan Co., New York.


MENT Act, 1855 (18 & 19 Vict. c. 124), S. 29-City or LONDON A Guide to Ecclesiastical Law for Church wardens and Parishioners.

PAROCHIAL CHARITIES Act, 1883 (46 & 47 Vict. c. 36).
With Plates illustrating the Vestments, &c. Compiled by HENRY
MILLER. Sixth Edition. John F. Shaw.

This was an appeal by the plaintiffs from a decision of Romer, J, who

had refused to declare that the plaintiffs were entitled, in respect of Responsible or Irresponsible ?. Criminal or Mentally Diseased ? | certain advances made by them as churchwardens of the parish of St. A Plea for the Unjustly Convicted, and on the Cause of Crime. By Botolph Without, Aldersgate, to be indemnified out of the parish funds.

The plaintiffs were churchwardens of the parish during the years HENRY SMITH, M.D. (Jena). Watts & Co.

1885-1888, and were accordingly, under a trust deed dated the 17th of November, 1865, and by immemorial custom, trustees of the income arising from the parish estates. In 1885 the plaintiffs found that their income was diminishing, and they therefore, in that and the subsequent

years, borrowed from the London and County Bank (Limited) sums CORRESPONDENCE.

amounting in all to £3,000, which sums they caused to be credited to the PREPARATION OF TRANSFERS OF MORTGAGES ON WIND. church wardens' account in the books of the bank. This money was spent ING UP OF TRUST ESTATE,

exclusively for ordinary parish purposes. In 1891, by a scheme established

under the City of London Parochial Charities Act, 1883, the estates of [To the Editor of the Solicitors' Journal.]

the parish of St. Botolph Without were vested in the defendant the Sir,-Will one of your readers kindly give a reply to the following defendants the trustees of the London Parochial Charities. Actions by

Official Trustee of Charity Lands, and were to be administered by the question ?

the London and County Bank against the plaintiffs to recover the sums In the winding up of a trust, the mortgages--part of the estate - borrowed as aforesaid wera pending in the Queen's Bench Division. The are transferred to the cestuis que trust. Is the preparation of the plaintiffs brought this action claiming to be indemuified out of the parish transfers part of the duty of the trustees' solicitor or the duty of the funds in respect of their liabilities to the bank. Section 29 of the Charitsolicitor for the cestuis que trust?


able Trusts Amendment Act, 1855, enacts that "it shall not be lawful for 2, Clement's-inn, Strand, W.C., May 9.

the trustees ... of any charity to make or grant, otherwise than with the


express authority of Parliament, under any Act already passed, or which what the plaintiffs in this case have done, or claim to do, was illegal and may hereafter be passed, or of a court or judge of competent jurisdiction, improper. If it were not for the modern 'Act of Parliament which or according to a scheme legally established, or with the approval of" governs the matter, I am not prepared to lay down that I should have the Charity Commissioners, any sale, mortgage, or charge of the gone the length of saying that the plaintiffs are not entitled to recoup charity estate." Romer, J., held that on the true construction of the themselves out of income accruing after the date of the expenditure. I trust deed of 1865, the plaintiffs, as churchwardens, had no power to am not prepared to go so far as so say that I differ from Romer, J., on that anticipate the parish income, and had no right to be indemnified out of part of the case. I think it is a very difficult question, turning on the future income. The plaintiffs appealed.

true construction of this particular trust deed. I am not sure that if the The Court (LINDLEY, M.R., and Rigby and Collins, L.JJ) dismissed learned judge in the court below. But what appears to me conclusive of

case turned on that question alone I should take the same view as the the appeal.

this case is the Act of Parliament. If we were to sauction the view put LINDLEY, M.R., said: This is an appeal by the Churchwardens and forward on behalf of the plaintiffs, and to give effect to the very able and Trustees of the Parish of St. Botolph Without, Aldersgate, from an order ingenious argument of Mr. Powell, we should, it seems to me, be doing made in the court below, refusing them the relief which they sought by the very thing the Acts have endeavoured to prevent and stop. The case an originating summons. That originating summons, as I understand it, of Attorney-General v. Webster (20 Eq. 483) settled that such property is was to the following effect. It asked that it might be determined whether subject to a charitable trust. On the deed which governs this case I do not the defendants in the matter that is, the Official Trustee of Charity suppose any doubt could have been raised. There was an Act of Parliament Lands and the Trustees of the London Parochial Charities, ought not out before the money was borrowed, passed in the year 1883, and called the of the estates and funds vested in them, previously belonging to the City of London Parochial Charities Act, 1883. That was an Act passed for parish, to pay and discharge the claims made upon the plaintiffs by the the purpose of reorganizing all those London charities, partly because their London and County Bank (Limited) in respect of certain moneys paid by revenues had been applied in all kinds of ways, and often very recklesely. the bank. Those moneys are sums which amount in all to about £3,000, For that, amongst other reasons, this Act was passed, to provide machinery and which, as the plaintiffs allege, were advanced by the plaintiffs on the for the purpose of reorganizing all the London charities.

The days mentioned, and credited to the account of the churchwardens for reorganization, it was provided, was to be done by a scheme. Now, all the purposes of the parochial trusts, and duly applied in the administra - that was known, or must be taken to have been known, to the gentlemen tion of the same trusts. The case came before Romer, J., and he made who had the management of this charity. The scheme itself affecting no order except that the plaintiffs should pay the defendants' costs. The this charity was not made till February, 1891. In the interval, in 1886, question which arises is one of some difficulty, and certainly one of some 1887, and 1888, what was done by the trustees for this charity of the importance, and of considerable interest from more points of view than rents and profits of the property ; that is to say, by the churchwardens ?

The first point to consider, and the first thing to ascertain, is who They found that, owing to leases falling in and to their inability to create the plaintiffs are, and what are their duties. It appears that the plaintiffs new leases, they had for a year or two a smaller income. Their income were churchwardens during certain years—the years which are material was diminishing by £400 or £500 a year. They still had a considerable for the purposes of this litigation-of the parish of St. Botolph Without, income, but one considerably diminished. In those circumstances they and that the parish was entitled to certain property to which I will thought proper, without consulting anybody except the vestry, to go and allude presently, and which was vested in certain trustees by a deed of borrow money to the extent of £3,000, knowing perfectly well, as we trust dated the 17th of November, 1865, which had been preceded by must assume, that a scheme under the Act of 1883 was probably being similar deeds for the last 200 years. The trusts declared by that deed are entertained. Then, having expended for parochial purposes this sum of important. The old trustees that is, the surviving trustees--conveyed £3,000, which they had borrowed from the London and County Bank, to the new trustees the property which I will call parish property, upon they come to the court and say that they ought to be recouped. They ask these trusts, that they, the new trustees, should convey, demise, lease, the court to declare that they are entitled to be indemnified. Out of and dispose of the property to such persons and generally in such manner what moneys ? Out of the future income of this charity. I pause to as the parishioners assembled in vestry should from time to time direct consider what right they have to anything of the kind. Under the Charitand appoint-that is to say, that the new trustees should, with the con

able Trusts Amendment Act, 1855, it is quite obvious that they could not sent of the vestry, sell and dispose of, and should for ever thereafter themselves, without the consent of the Charity Commissioners, have permit and suffer the churchwardens of the parish of St. Botolph With- created any mortgage or charge on these trust estates. They knew that, out from time to time and at all times thereafter to receive and take the I suppose, or we must assume that they did. In those circumstances they rents, issues, and profits of the same property, as the same should from say they will not trouble the commissioners, but will at once go and spend time to time arise as the same formerly had been used, and for £3,000 on what they think is a beneficial work, and take the chance of such uses as the same had been usually employed and disposed the court holding that that expenditure is proper. Then they ask of by the commissioners, whether in or about the affairs of the the court, in this action, to declare that they are entitled church, the relief of the poor, or any other the public affairs to a charge on the est ites. Let us consider that claim a little of the same parish, and

not for

or trusts.

more closely. If what the plaintiffs ask can be done, it appears to me to Pausing there, let us see what those provisions mean. In the first place be not merely evading section 29 of the Act of 1855, but depriving the let us take the trustees of the estates and consider what their business is. charity of the protection which Parliament was anxious to secure to it. Subject to the orders and directions of the vestry, all they have to do is to I quite agree that the words of section 29 are not the aptest words to cover convey, demise, lease, and dispose of the property as the vestry shall a transaction of this kind. I do not suppose that a transaction quite of direct, and to permit the churchwardens to receive the rents. It is this kind was ever really thought of by the Legislature as likely. If it nothing to the trustees what the churchwardens do with those rents and had been I dare say it would have been hit by more apt words. But when profits. Who are in substance the trustees of the rents and profits? The you consider these words, I think it would be putting upon them au churchwardens of the parish of St. Botolph Without. That necessarily extremely narrow construction to say that such an operation as this does involves a little inquiry into what churchwardens are. They are only not transgress the prohibition contained in them. To draw a distinction officers elected year by year. It is said that the churchwardens are a between making a charge” and doing that which nccessarily results corporation. There is an ambiguity in that expression. I do not think in the creation of a charge is too subtle. What has been done here is it is made out that by the custom of the City of London or by Act of mere machinery for the creation of a charge ; and if it is true that these Parliament the churchwardens are a corporation in the full sense of the gentlemen, the plaintiffs, by borrowing money and spending it for the term. They are, it appears, & corporation for the purpose of holding purposes of the parish bave obtained an equitable lien or charge, they land and for the purpose of its devolution, but not in the sense that they are, as it seems to me, distinctly struck at by section 29 of the Act of are for all purposes a corporate entity—that is to say, are a person in point 1855. I do not think we are forcing the language of that cection at all of law, or that they can be said to be in the fullest sense a corporation, when we say that that cannot, consistently with the provisions of that There is authority that they are not in that full sense a corporation, and I section, be done. Mr. Powell put it in this way. He said that the am not aware that they are a corporation except in the very modified plaintiffs have not got a charge. How, then, are they to get one? They sense wbich I have stated. The substance of the whole matter is that ask us to give them a charge. I emphatically say No to that. It would these trustees are annual officers holding office for one year only. Next, be wrong for us to create such a charge, because, knowing of the Act of we have to consider, of what property are these annual officers trustees? 1883, the plaintiffs have been borrowing and spending money. Probably They are technically and in the narrow sense trustees only of the annual they foresaw that that expenditure would not be sanctioned by the money which it is their duty, under this trust deed, to receive and take. Charity Commissioners. If the plaintiffs' claim is put as a matter of But it does not follow that that is all we have to consider. It is impossible discretion, I say No, for these reasons. If it is put as a matter of not to look beyond them-not to consider this trusteeship as a mere piece right, it is contrary to the words of section 29. The modern Acts clearly of machinery for the purpose of creating a trust of this property for the forbid such an expenditure. I do not say I differ from Romer, J., as t) benefit of the parish. When you consider the language of this trust, that the effect of the trust deed. But, without saying he is wrong, I have theee rents and profits are to be applied by the church wardens, as officers, some doubt upon that part of the case. In the result I thiok that he is forthe purposes of the parish, I am not myself satisfied that I should without right, and that the appeal must be dismissed. further consideration be prepared to decide this case against the plaintiffs simply on the ground that it was the duty of these churchwardens to look RIGBY, L.J., delivered judgment to the same effect, and alco reserved his for their indemnity solely to the trust property in their hands, or that I opinion on the question of construction decided by Romer, J. should consider that the trust property in their hands was limited to the rents and profits which had accrued due in their year of office. To hold that without expressing any concluded opinion, said that he thought Romer,

COLLINS, L.J., delivered judgment generally to the same effect, but, would, I think, be to attach more importance to the mere machinery than J., was right on the question of construction.-Counsel, Neville, Q.C., to the trust deed and the trusts created by it. If we found clear evidence Arthur Powell, and P. S. Stokes ; Sir Richard Webster, A.G., and l'aughan that it was customary for the church wardens in old times to borrow Hawkins ; Parwell, Q.O., and Reginald Neville. SOLICITORS, W. H. Court' money, not on the security of the rates of the year, but to an amount | Clabon ; Robert Pearce. exceeding what they had in any year, and to recoup themselves out of the rents which afterwards came in, I should pause before I said that

[Reported by R. C. MACKENZIE, Barrister-at-Law.]

any other


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