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It was also agreed that the traction company should pay £1,250 to the chairman and £500 to each of the directors of the tramway company, as compensation for loss of oflice. The purchase price was originally fixed upon the supposition that the directors would be retained in their oflices by the traction company, and the compensation was introduced when this plan was abandoned. The agreement was expressly made conditional upon its being adopted by the shareholders of the tramways company. An extraordinary general meeting of the tramways company was summoned for the purpose of considering and, if thought advisable, approving the terms of the agreement, but the notice said nothing about the proposed payment of compensation to the directors. Reference was made to this, however, in a circular sent out by the directors enclosing a form of proxy. At the meeting the agreement was confirmed by a large majority, and a dissentient shareholder thereupon. sought to restrain the directors from carrying it out on the ground that the agreement was ultra oires, and also on the ground that the notice convening the meeting did not sufficiently disclose the real terms of the agreement. KEKEWICH, J., decided in favour of the plaintifi on both grounds, but the Court of Appeal declined to hold that a contract under which the directors secure an advantage for themselves is necessarily ultra circs, though Vancnan Wrnnnms, L.J., intimated that, while not ultra vires, the matter might still be one in which the majority would have no power to bind the minority. The possibility of such a contract is shewn by the case of Soutball v. Brit-[sh Jlluturl L-zfa Assurance 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 selling company. But as the Court of Appeal held the notice convening the meeting to be insufficient, the question of ultra virus was not material. By section 71 of the Companies Clauses Act, 1845, the notice convening an extraordinary meeting must specify the purpose for which the meeting is called. But a notice that an agreement for the sale of the property of the company is to be considered, does not intimate that a part of the purchase-money is to be diverted from the company into the pockets of the directors, and upon this ground the agreement was referred back to the shareholders. Clearly any arrangement whereby the directors make special terms for themselves requires to be brought clearly before the shareholders before it can be taken to be approved. In the present instance the shareholders at the subsequent meeting declined to give their approval.

FORTUNATELY FOR the travelling public, cases at all parallel to that of Ray. v. Ostima, which has recently occupied four days at the Old Bailey, are very rare. It was proved at this trial that the prisoner, who was a detective in the employ of the Metropolitan District Railway Co., had been in league with a gang of pickpockets who infested the line. These miscreants, against whom it was his duty to protect the passengers, this detective used to screen and help in every way, and naturally for such services he received a substantial share of the profits. At last, however——as was bound to happen sooner or 1ater—his own safety obliged him to give up one of his friends, and this friend, in revenge, betrayed him. The betrayer is a trained and experienced thief of the most dangerous class, one of those men who do not even profess to have any intention of gaining an honest living. No jury would convict, and no judge would permit the conviction of, any man upon the evidence of such a witness without most ample corroboration. It is now well established, although in strict law it is not essential, that the testimony of an accomplice must be confirmed by some other evidence in order to convict an accused person. Such confirmatory evidence, also, must be untainted evidence. That of another accomplice will not do, nor that of the wife of an accomplice. In Osrmrfs case, however, there was the most ample corroboration of the pickpocket’s tale. In fact, he might have been very safely convicted without putting the accomplice in the witness-box at all. No doubt the directors of other railway companies will note this case carefully and learn several lessons from it. Railway stations and carriages afford to pickpockets exceptional opportunities for plying their trade, On the other hand, the premises of the companies are


private property, and so are outside the sphere of duty of the police. It therefore becomes the duty of the companies to provide reasonable protection to their passengers against this very serious danger. We are far from saying that the particular company concerned in this case is more backward than other companies in recognizing their duty. We believe that, in proportion to the length of line it is answerable for, the District Railway Co. affords its passengers quite as much protection as any other company, though it has been unfortunate in its choice of a servant. At the same time, probably every company might do some what more towards detecting thieves and removing from their minds the not unj ustifiable idea that a railway is a happy hunting ground. The accomplice in this case admitted, when before the magistrate, that he had “worked” every railway in England, that this has been going on for sixteen years, and that he has many friends in the same business. Yet he has up to now escaped a sentence of penal servitude. This reveals a state of things which calls for energetic and concerted action by the

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Tun cnss of London and Nortb- W'catcrn Railway Co. v. Dannellan, previously referred to in these columns (ante, p. 359), recently came before the Court of Appeal (ants, p. 449), when the judgment of the Divisional Court was reversed and that of the county court restored. Shortly, the point involved was whether a disputed claim to rent, made by the plaintifis against the defendant, in respect of trucks left standing on railway sidings belonging to the plaintiffs, could be made the subject of an action in the county court, or whether the sole jurisdiction to determine it was not given to an arbitrator by the London and North-Western Railway (Rates and Charges) Order Confirmation Act, 1891 (54 & 55 Vict. c. ccxxi.), which, by section 5 of the schedule of maximum rates and charges, appended to the Act, provides that, “ Any rllfléranca arisz'1z_q under this section sball be determined by an arbitrator, to be appointed by tbs Board of Trazls at the instance of aitlwr party." The Divisional Court (Walonr and DARLING, JJ.) it will be remembered, were of opinion that the case was one of express contract to pay siding rent, of which an actionable breach had been committed, and that the above provision as to arbitration was inapplicable, its operation being, it was considered, limited to cases where the sole question in dispute was the reasonableness of the amount of the charges made by the railway company. The Court of Appeal (A. L. SMITH and Cmrrr, L.JJ.), in reversing this decision, stated that no such limitation as that suggested could, without violating well-recognized canons of construction, be given to the above-mentioned words of section 5, which instead of being restricted to the reasonableness of the charge made by the railway company (the plaintiffs) extended to and referred to the arbitrator for his award all matters which were material to the decision of the difference arising under section 5, whatever that difierence might be. This judgment of the Court of Appeal is, we venture to think, fully justified by the language of the enactment in question, which, as we pointed out on a previous page (p. 359), certainly seems to contemplate resort to arbitration, whatever the cause of difference may be.

Tun DECISION in the long-drawn-out case of Layunas _Vz'trata Co. v. Lagunas Mtrate Syndicate (reported elsewhere) is of considerable public importance, and, though its interest is mainly commercial or financial, the judgment contains a useful summary of the law as to directors’ liability for non-fraudulent breaches of duty, and illustrates the comparative immunity of directors acting intra vircs and in good faith from legal responsibility for negligence. The plaintiff company sought rescission of a contract for purchase from the syndicate of certain nitrate fields and works on the ground of misrepresentation, and damages against the syndicate and directors, who were interested in the syndicate, for alleged breaches of their duty as directors of the company. The decision turned on the effect of a vast body of evidence, which was exhaustively dealt with in the judgment of Roman, J., and, fraud not being charged, the court held that the claim for rescission failed. The case is an illustration of the extreme difficulty of establishinga claim for rescission apart

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from fraud: cf. Jfnuwdy v. Panama, §'c., Mail Co. (15 \V. R. 1039, L. R. 2 Q. B. 580) referred to by ROLIEB. J. The syndicate was not entirely successful, but the finding of the court was in their favour as to all except two of the many particulars charged against them, in respect of which an inquiry as to damages was ordered, and the judgment went on the fooling that the company substantially received what they bargained for under the contract for sale and purchase. As to the directors, fraud not being charged, the question was whether they could be made responsible on the ground of negligence. ROMER, J , referred to the discussion of degrees of negligence by Lord Cnnniusrom) in giving the judgment of the Privy Council in Gz'I1l1'n v. llcJ[uI/vn (L. R. 2 P. U. 817, at pp. 336, 337), and pointed out that directors were only responsible for crassa m=_ql:lr/enifa: see Orerend, Gurna]/, §~ Co. v. Gibb (L. R. 5 H. L. 480). The action as against the directors was dismissed, the court concluding that thr-re had been no negligence ofa kind for which directors could be held liable by action to their company.


THELBIN1 Transfer Rules are divided into five parts and two schedules. Part I. deals with the register, Part II. with first registration, Part III. with registered dealings with registered land, Part 1V. with minor entries in the register, and Part V. with miscellaneous provisions. The rules commence with interpretation clauses, and the first schedule contains forms for use under the Acts, while the second schedule deals with the remuneration of solicitors.

We propose in these articles to offer a few remarks on some of the salient features of each part of the rules. Regarding the rules as a whole it should be observed that the scope of the Acts is very much extended by them, inasmuch as the machinery for the registration of leasehold property set up by the Act of 1875 is repealed and replaced by provisions enabling registration of leasehold property with absolute, qualified, and possessory title irules -13-57), and the compulsory provisions of the Act of 1897 are extended so as to cover leasehold property (rules 58 and 59).

We believe this to be the first occasion on which portions of an Act of Parliament have been repealed by rule; we are, however, far from finding fault with the Rule Committee for having adopted this course, and could only wish that they had felt themselves at liberty to use their powers in this direction upon a larger scale; so that much of the now superfluous matter in the Act of 1875 might have been eliminated and the task of the would-be interpreter of the Acts and rules thus greatly facilitated. In addition to those points to which we referred in our preliminary article (p. 446) we wish also respectfully to draw the early attention of the Rule Committee to what appears to us to be an oversight—namely, that no provisions have been made by the rules for a vlfl_r3Ll:iog,_11_nd_er section 4 of the Act of 1897. The necessary power to make rules under that sectionis, we submit, supplied by section 22 (6) (i) of the Act of 1897, and, in the absence of a. rule on the subject, the provisions for appropriation of real estate under the Act of 1897 in satisfaction of a legacy or share of residue seem to be incapable of being exercised.

We should also like to point out that the power to grant a new land certificate on a sale by a charges given by section 8 (4) of the Act of 1897 does not apply on a foreclosure. The power should be added to rule 107. Notwithstanding that the order for foreclosure will probably direct that the charger is to hand over his land certificate, if it was retained by him, yet it will not be always possible to find the chargor, and an unnecessary difliculty would thus arise.

Part I.—Tlu Register-.—The register is to be sub-divided into three registers, to be called respectively the property register, the proprietorship register, and the charges register (rule 2). The principal function of the property register is to give the description of the land (rule 3). There is also to be a statement cf the value of the 1ap_d\ip__ this register. This value will also

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appear in the land certificate, and should be useful to bankers advancing money on mortgage by deposit. Pieces of land may be added to or removed from a title (rule 4). The functions of the proprietorship register are to show who is the proprietor and to disclose any cautious inhibitions or restrictions afiecting his right of disposition (rule 6). The function of the charges register is to disclose incumbrances. Notes as to the ownership of the mines and minerals and as to easements profits d prmllrefl and as to restrictive covenants are to be entered in the property register. It should be observed that section 84 of the Act of 1875, as amended by the Act of 1897, enables the burden of restrictive covenants to be annexed to registered land, but there seems to be no provision in the Acts to enable the registration of the benefit of a restrictive covenant. Now, by rule 3 the benefit of a\ restrictive covenant may be entered in the property register, _ although it would seem it would not pass by registered dis-' position unless expressly mentioned in the instrument of transfer: see Renals v. Cowlishaw (9 Ch. D. 125, 11 Oh. D. 866), Spicer v. fllarlin (14 A. C. 12). In districts where registration of title is compulsory, the register is to be bound in volumes according to parishes (rule 9). A useful provision, and one whiclfive hope will be encouraged by the officers at the Land Registry, is that enabling a landowner to have his title bound in a separate volume (rule ll). Provision is also made for an index map and a list of pending applications, which are to be open to the inspection of the public (rules 12-14).

Part I1.—Fz'1-at Regz'strate'on.—Posmsory title.—Applicati0n for registration with a pcssessory title is to be accompanied by either the conveyance on sale to the applicant or a statutory declaration of possession accompanied by the latest document of title in the possession or under the control of the applicant (rule 17). If the application is by a purchaser, the consent in writing of the vendor is to accompany (ib.). A purchaser was empowered by section 5 of the Act of 1875 to apply for registration without taking a conveyance, but we regret to see the power retained, as it seemsto us that a purchaser who registers without taking a conveyance does not obtain the legal estate. The lsfinsstm would in such a case be paramount to the fee simple conferred by registration (see section_$ qf__theyAct_of _l875), and a subsequent purchaser could require an abstract of title to it (see section 16 (1) (v), of the Act of 1897. Moreover, the omission to take a conveyance would leave a link in the title, which is unaffected by registration, to be accounted for, and would bring the contract for sale on that title. Incumbrances need not be disclosed on first registration with a possessory title (rule 18), but if disclosed they will be noted in the charges register. The registrar is not, however, to investigate the title (:'b.).

We conceive that the practice will be to make a very complete statutory declaration as to the title, so that it may in a

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Tun Court of Appeal have reversed the decision of Brass, J ., in Birmiragkam .Brewer-in (Limited) v. Jameson (46 VV. R. 375), and have removed the ditficulty which that decision would have caused in construing covenants in leases of tied houses. The proper effect of a covenant which constitutes a public-house a tied house is to require the lessee to purchase the liquor to be consumed on the demised premises from the lessor or his successors in business, and the lessee, if he is well advised, will not consent to a covenant which binds him to purchase from an assign of the lessor who does not carry on his business, and who may not perhaps carry on a brewing business at all. The former efiect was given to the covenant-which had to be construed in Doe v. Reid (10 B. & O. 849). There the lessee covenanted to take liquor from the lessors, “their executors, administrators, or assigns, or their successors in their late or present trade of brewers." The lessors sold their business and also the demised premisesto third persons, who removed the plant to another brewery two

comparatively short time be made the root of title by conditions



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 1891 by H001) to the had been determined and that the purchasers therefore were E Midland Brewers Auxiliary Go. (Limited), who, in May, 1896,

not entitled to rank as their successors in business. The successors of any party in business, said BAYLEY, J., are they who carry on the same business in the same place. It was assumed that the term “ assigns,” as used in the covenant, was to be limited by the words which followed, so as to bind the lessee to take liquor, not from assigns generally, but only from assigns who were successors in trade of the lessors.

In Cl~_qg v. Hands (38 W. R. 433, 45 Ch. D. 503) there was no such restriction to the lessors’ successors in business. Substantially the covenant was with the lessors and their assigns, and awider effect was given to it. The covenant bound the lessee not to deal in liquors “other than such as shall have been bond fido purchased of the said lessors, or from them or either of them, either alone or jointly with any other person or persons who may hereafter become a partner or partners with them or either of them." The term “lessors” was defined in the lease to include the lessors and their heirs, executors, administrators, and assigns. The lessors sold their business to a brewer carrying on business at a different brewery, and assigned to him the demised public-house and the benefit of the above covenant. About the same time they dissolved partnership, and their brewery was shut up. Under these circumstances it was held by the Court of Appeal that the purchaser, although not carrying on the business of the lessors, was entitled to the benefit of the covenant. The covenant was not in its nature persona], like a contract by an artist to paint a picture, so as to be incapable of assignment, and the parties had omitted the express restriction to successors in business which occurred in Doe v. Raid. The case, said LINDLEY, L.J., was important both to brewers and to tenants who take tied houses, because it was a startling thing to anybody to be told that when he had agreed to buy beer of a. particular brewer, he might find himself bound to take beer from someone else. However, the matter depended upon the contract between the parties, and such was the result of the contract in the particular case.

The judgments in Clogg v. Hands did not profess in any way to override Doe v. Raid, and it follows from the two decisions that a covenant in a lease of a tied house which binds the lessee to purchase liquor from the lessor and his assigns generally, will be freely assignable, and the only restriction is that the assign of the covenant should be in a position to supply the liquor under it. Usually the lease contains a proviso as to the quality of the liquor to be supplied, and even if it does not, it seems that the lessee is not bound by the covenant if the lessor does not supply liquor of a proper quality (see per FRY, J., in Edwiok v. Hawkes, 18 Ch. D. 207). In Cleyg v. Hands the covenant was subject to the proviso that the lessors or the other parties affected should deal in and vend the specified liquors, and be willing to supply the same to the lessee of good quality and at the fair current market price ; and under these words it was held that it was not necessary that the assigns 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 other hand, it is perfectly competent for the lessee to prevent the free assignment of the benefit of the covenant by restricting it to such assigns of the lessor as are also his successors in his business, and then he can only be required to take liquor from the identical brewery or business which he had in contemplation when he entered inio the lease.

In Bi'rm1'ng/ram Ilrawa-rise (L1'mz'ted) v. Jameson the covenant, so far its actual terms went, referred only to the lessor and his successors in business, but the definition clause defined “lessor ” to include assigns, and the question arose how far the definition overrode the apparently restricted scope of the covenant. The lessor was ALFRED H001), described in the lease as of “The Brewery, Nechells, Birmingham.” The lessee covenanted that he would during the term “deal exclusively with the lessor, or his firm of Messrs. Hoou & Sorts, or his or their successors in business for all beers, ales, porter, stout (except bottled stout), and other like articles, which shall be sold or consumed upon the said hereby demised premises"; and the lease contained a declaration that, where the context allowed, the term “ lessor ” should include, “ besides the said Ara-nan H001), his

Iassigned it to the plaintiff company. Messrs. Hoon 8: Sons continued to carry on business as before at the Nechells Brewery. The defendant, who was the assignee of the lease, ' pleaded that he was ready and willing to purchase from Messrs. E H000 & Sons so long as they were willing to supply him, but he contended that he was under no obligation to purchase from the plaintiff company.

The case was a stronger one for the defendant than Dos v. Reid inasmuch as the original business was still being carried on, and hence, even if the business was capable of being transferred to other premises—-which was denied in that case—there had certainly been no such transfer. Moreover, on the covenant as it stood in the lease the lessee was bound to take the liquors only from the lessor,’ or the firm of H001) & Soxs, or his or their successors in business. \Viihin these words, taken by themselves, the plaintifi company_ could _not he brought. - Mr. Justice Brass held that the extension specified in the definition clause ought to be introduced into the covenant so as to bind the lessee to take liquors from Hoon, or his assigns, or his firm of Hoon & Sons, or his or their successors in business. What would be the effect of a covenant in this form it is very difficult to say. Apparently the learned judge thought that any of the persons mentioned could enforce it, and that they must arrange between themselves which of them _was to supply bger. _ U 'l;he covplnant here, ire ;B1d,.“ isuwitp theltessoigi

is a minis ra ors an assigns an 1 ey can a en oi-ce 1 an

dictate to the tenant of whom, the beer is to be taken.” Such an arrangement, it is obvious, would be highly inconvenient, paid it C?_.l1fll118.1'(1l{ly gas srpppoéed tthat£thAe lessqelpontemplateili 833

ing o e in . e our o ppea ave rejec e is construction, and have excluded the definition clause from the covenant. The meaning of the covenant, in the opinion of LINDLEY, M.R, was plain. It was that the lessee was to buy exclusively the beer of the Nechells brewery—that is he was to buy from the lessor or his successors in business. The result would have been the same had the court introduced “assigns” from the definition clause, and than restricted its effect, as in Doe v. Reid, to such assigns only as were successors of the lessor in business. As already pointed out, in Clegg v. Hands the reference to successors in business was omitted, the word “ assigns” was adopted from the definition clause, and the covenant consequently extended to assigns generally. But this is carrying it further than in the interests of the lessee it should be allowed to go. It appears from the present decision that where the covenant refers, as it ought to do, to successors in business, the tendency will be to give it its natural efiect, and to bind the lessee to take beer only from the particular brewery in contemplation at the date of the lease; and an extension, for the general purposes of the lease, of the term “lessor ” to include assigns will not alter this result.


THE Woaitiiii-:iw’s COMPENSATION Aer, 1897. Wirn Corious Norms AND an APPENDIX CONTAINING THE Eiirnoviaiis’ LIABILITY Ac'r, 1880. By W. Annmoron, LL.B., Barrister-at-Law. FOURTH EDITION. WITH ANALYSIS or A Piiorossn SCHEME T0 as CERTIFIED nmnsa THE Aer, AND Form or APPLICATION FOR A CERTIFICATE. Butterworth & Co. ; Shaw & Sons.

EMPLOYI-1R8' LIABILITY UNDER TIIE w0RKMEN'S COMPENSATION Aer, 1897, am) THE EsIPLoYEns' LIABILITY Aer, 1880. By ARTHUR Ronmson, B.A., Barrister-at-Law. Stevens & Sons (Limited).



In these works lawyers and others who are interested in the scheme of compensation to workmen which is shortly to come into force under the Act of 1897 will find ample guidance. Mr. Willie's


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 carefully-prepared notes are appended to the various sections. As an instance we may mention the note to section 1 (2) (b) upon the effect of the Act on the existing rights of the workman against his employer, and the list under section 7 (2) of the places which are factories for the purpose of the Act, and to employment in which, therefore, the Act applies. A matter of special importance is the feasibility of establishing schemes which will bo accepted by the Registrar of Friendly Societies in lieu of the compensation given by the Act. Mr. Willis deals fully with this point, and gives, so far as can be ascertained at present, the requirements of the registrar. His analysis of suggested rules for such a scheme will also be found useful.

The other two works mentioned above are wider in scope, in that they treat in detail of the Act of ISSO as well as the Act of 1897. In annotating the Act of 1897 Mr. Robinson has in the main confined. himself to explaining its intended effect by reference to speeches made during its passage through Parliament. The Act of 1880 is naturally treated with reference to the decided cases, and the effect of these is concisely stated. A special feature of the book is the list, illustrated by decided cases, of the defences which can be set up in actions brought under the Employers‘ Liability Act, 1880.

The work by Mr. Ellis Hill is not confined to annotating the Acts. The relevant Acts are printed in the appendix, and the body of the work is devoted to a detailed examination of the law of the liability of an employer for accidents to his workmen. The first chapter, dealing with the liability of the employer at common law, states the origin of the doctrine of common employment in Priestley v. Fowler (3 M. & W. 1), and gives at some length the developments given to the doctrine in the various cases in the House of Lords. Subsequent chapters treat of the Act of 1880, the Factory and Workshop Acts, Lord Caurpbell’s Act, the doctrines of negligence, contributory negligence, and the maxim voienti non fit in_/'u1*i'a, and the practice in an action under the Act of 1880, and the final chapter explains the Act of 1897. The print of the Act of 1880 in the Appendix is preceded by a digest of the cases decided upon it. The book presents a careful examination of an important and difiicult subject.


The Yearly Abridgment of Reports: Being a Full Analysis of all Cases Decided in the Superior Courts during the Legal Year 1896-7, so far as Reported to the end of December, 1897, in all the Reports, together with a Selection from the Scotch and Irish Reports, preceded by Complete Lists of all Cases, Statutes, and Rules Cited, and concluding with a Copious Index to Points of Law Considered. By Aa'rnonTo1uvoun MURRAY, B.A. (Oxon), Barrister-at-Law. Butterworth 8: Co.

The Law of Licensing in England, so far as it relates to the Retail Sale of Intoxicating Liquors and to Theatres and Music Halls. With a Full Appendix of Statutes and Forms. By JOHN Bacon WILLIAM$0N, Barrister-at-Law. William Clowes 8: Sons (Limited).

The Science of Law and Law-making: Being an Introduction to Law, a General View of its Forms and Substance, and a Discussion of the Question of Codification. By R. FLOYD CLARKE, A.B., LL.B., of the New York Bar. The Macmillan Co., New York.

A Guide to Ecclesiastical Law for Churchwardens and Parishioners. With Plates illustrating the Vestments, &c. Compiled by HENRY l\IILLER. Sixth Edition. John F. Shaw.

Responsible or Irresponsible? Criminal or Mentally Diseased P A Plea for the Unjustly Convicted, and on the Cause of Crime. By Hssnv Srurn, M.D. (J ena). Watts & Co. A



[To the Editor of the Solicitors’ Journak]

Sir,-Will one of your readers kindly give a reply to the following question P

In the winding up of a trust, the mortgages-part of the estate— are transferred to the ccatuis qua trust. Is the preparation of the transfers part of the duty of the trustees’ solicitor or the duty of the solicitor for the cestuis quc trust .? HOOD BARRS & C0.

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This was an appeal from a d60lslOl1 of Byme, J . (ante, p. 264). The facts were as follow: The lessee of a beerhouse covenanted with his lessor “ that he the lessee, his executors, administrators, and assigns, and all other persons for the time being carrying on the business of a beerretailer or publican upon the said premises will and shall during the said term of years hereby granted deal exclusively with the lessor or his firm of Messrs. Hood & Sons or his er their successors in business for all beers, &c.” There was also an interpretrtion clause that " where the context allows" the expressions “lessor” and “lessee” should include their respective executors, administrators, and assigns. In 1894 the lessor assigned the reversion to a company who assigned to the plaintiffs. Messrs. Hood 8: Sons were still carrying on their business. The defendant, who was the assignee of the lease, declined to buy from the plaintifis on the ground that they were not the “ successors in business ” of Messrs. Hood. & Sons. The plaintiffs sought an injunction to enforce the covenant. Byrne, J ., held that by virtue of the interpretation clause the words executors, administrators, and assigns should be inserted into the covenant and that the covenant ran with the reversion, and granted the injunction. The defendant appealed.

Tm: Cover (Lmntnv, M.R., and Rrcnv and Cotuzvs, L.JJ.) allowed the appeal.

Lrxonsv, lt[.R.—This is not a very clear case, and I am not surprised that Byrne, J ., felt some doubt in deciding it. In some respects it is very like Clegy v. Hand! (38 W. R. 433, 44 Ch. 1). 503), and in some res cts it is very like Doc v. Reid (10 B. & C. 849). But what we have to findeout is not which of those cases this case is most like, but what is the construction to be placed on the lease now before us. \Ve are asked by the respondent’s counsel to insert after the word lessor in the covenant the words “his executors, administrators, and assigns" by virtue of the interpretation clause. I see no reason for doing that. The context does not require it. If we do insert it we convert a clause which is reasonably plain into one which would be dililcult to understand. This construction of the lease would also produce a great deal of mischief. It is plain that the intention of the covenant was to protect the lessor’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 covenant is with the lessor and his successors in business, not with his executors at all, unless, of course, the executors happen to carry on the business. I will say nothing about Glegg v. Hands and Doe v. Reirl except this, that the problem which the court has to deal with here is distinct from that which was before it in Ulegg v. Hands. There the lessor had not severed the business from the reversion. Again, Clegg v. Hands does not overrule Doe v. Reid, and if we compare the cases the present case will bc found rather nearer Doe v. Reid than Olegy v. Hands. But it is not necessary to discuss that. The appeal must be allowed with costs.

Rronr, L.J., delivered judgment to the same effect.

Conurvs, L.J., COI10l11'2'€d.—COUNSBL, Lawrmce, Q.C., and Doug/las ,Dimham. Soucrroas, Harman, Ward, §- Co., for Lane, Olulterlmck, §- Co., Birmingham; Harrell 4* 6'0.

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This was an appeal by the plaintifls from a decision of Homer, J , who had refused to declare that the plaintiffs were entitled, in respect of certain advances made by them as churchwardens of the parish of St. Botolph Without, Aldersgate, to be indemnified out of the parish funds. The plaintiffs were churchwardens of the parish during the years 1885-1888, and were accordingly, under a trust deed dated the 17th of November, 1865, and by immemorial custom, trustees of the iucorne 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 amounting in all to £3,000, which sums they caused to be credited to the churchwardens’ account in the books of the bank. This money was spent exclusively for ordinary parish purposes. In 1891, by a scheme established under the City of London Parochial Charities Act, 1883, the estates of the parish of St. Botolph Without were vested in the defendant the Olliciul Trustee of Charity Lands, and were to be administered by the defendants the trustees of the London Par0chialCl1aIities. Actions by the London and County Bank against the plaintiffs to recover the sums borrowed as aforesaid were pending in the Queen's Bench Division. The plaintiffs brought this action claiming to be indemnified out of the parish

funds in respect of their liabilities to the bank. Section 29 of the Charit

able Trusts Amendment Act, 1855, enacts that “it shall not be lawful for

2, Clement's-inn, Strand, W,C,, May 9, l the trustees . . . of any charity to make or grant, otherwise than with the


express authority of Parliament, under any Act already passed, or which may hereafter be passed, or of a court or judge of competent jurisdiction, or according to a scheme legally established, or with the approval of" the Charity Commissioners, “any sale, mortgage, or charge of the charity estate.” Romer, J ., held that on the true construction of the trust deed of 1865, the plaintiffs, as churchwardens, had no power to anticipate the parish income, and had no right to be indemnified out of future income. The plaintiffs appealed.

Tris Counr (LINDLBY, M.R., and RIGBY and Connms, L.JJ ) dismissed the appeal.

LINDLBY, M.R., said: This is an appeal by the Churchwardens and Trustees of the Parish of St. Botolph Without, Aldersgate, from an order made in the court below, refusing them the relief which they sought by an originating summons. That originating summons, as I understand it, was to the following effect. It asked that it might be determined whether the defendants in the matter —that is, the Oflicial Trustee of Charity Lands and the Trustees of the London Parochial Charities, ought not out of the estates and funds vested in them, previously belonging to the parish, to pay and discharge the claims made upon the plaintiffs by the London and County Bank (Limited) in respect of certain moneys paid by the bank. Those moneys are sums which amount in all to about £3,000, and which, as the plaintifis allege, were advanced by the plaintifis on the days mentioned, and credited to the account of the churchwardens for the purposes of the parochial trusts, and duly applied in the administration of the same trusts. The case came before Romer, J ., and he made no order except that the plaintiffs should pay the defendants’ costs. The question which arises is one of some difllculty, and certainly one of some importance, and of considerable interest from more points of view than one. The first point to consider, and the first thing to ascertain, is who the plaintiffs are, and what are their duties. It appears that the plaintiffs were churchwardens during certain years—ths years which are material for the purposes of this litigation—of the parish of St. Botolph Without, and that the parish was entitled to certain property to which I will allude presently, and which was vested in certain trustees by a deed of trust dated the 17th of November, 1865, which had been preceded by similar deeds for the last 200 years. The trusts declared by that deed are important. The old trustees—that is, the surviving trustees--conveyed to the new trustees the property which I will call parish properly, upon those trusts, that they, the new trustees, should convey, demise, lease, and dispose of the property to such persons and generally in such manner as the parishioners assembled in vestry should from time to time direct and appoint—that is to say, that the new trustees should, with the consent of the vestry, sell and dispose of, and should for ever thereafter permit and suffer the churchwardens of the parish of St. Botolph Without i'ro_m time to time and at all times thereafter to receive and take the rents, issues, and profits of the same property, as the same should from time to time arise as the same formerly had been used, and for such uses as the _ same had been usually employed and disposed of by the commissioners, whether in or about the afiairs of the church, the relief of the poor, or any other the public aflfairs of the same parish, and not for any other use or trusts. Pausing there, let us see what those provisions mean. In the first place let us take the trustees of the estates and consider what their business is. Subgect to the orders and directions of the vestry, all they have to do is to convey, demise, lease, and dispose of the property as the vestry shall direct, and to permit the churchwardens to receive the rents. It is nothing to the trustees what the churchwardens do with those rents and profits. Who are in substance the trustees of the rents and profits? The churchwardens of the parish of St. Botolph Without. That necessarily involves a little inquiry into what churchwardens are. They are only oiiicers elected year by year. It is said that the churchwardens are a corporation. There is an ambiguity in that expression. I do not think it is_made out that by the custom of the City of London or by Act of Parliament the churchwardens are a corporation in the full sense of the term. They are, it appears, a corporation for the purpose of holding land and for the purpose of its devolution, but not in the sense that they are for all purposes a corporate entity—that is to say, are a person in point of law— or that they can be said to be in the fullest sense a corporation. There is authority that they are not in that full sense a corporation, and I am not aware that they are a corporation except in the very modified sense which I have stated. The substance of the whole matter is that these trustees are annual officers holding ofllce for one ear only. Next, we have to consider, Of what property are these annualofiicers trustees? They are technically and in the narrow sense trustees only of the annual money which it is their duty, under this trust deed, to receive and take. But it does not follow that that is all we have to consider. It is impossible not to look beyond them—not to consider this trusteeship as a mere piece of machinery for the purpose of creating a trust of this property for the benefit of the parish. When you consider the language of this trust. that these rents and profits are to be applied by the churchwardens, as oflicers, forthe purposes of the parish, I am not myself satisfied that I should without further consideration be prepared to decide this case against the plaintiffs simply pn_the ground that it was the duty of these churchwardens to look for their indemnity solely to the trust property in their hands, or that I should consider that the trust property in their hands was limited flto the rents and profits which had accrued due in their year of oifice. To hold that would, I think, be to attach more importance to the mere machinery than to the trust deed and the trusts created by it. If we found clear evidence that it was customary for tho churchwardens in old times to borrow money, not on the security of the rates of the year, but to an amount 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


what the plaintiffs in this case have done, or claim to do, was illegal and improper. If it were not for the modern ‘Act of Parliament which governs the matter, I am not prepared to lay down thatl should have gone the length of saying that the plaintiffs are not entitled to recoup

themselves out of income accruing after the date of the expenditure. I am not prepared to go so far as so say that I differ from Romer, J ., on that part of the case. I think it is a very difflcult question, turning on the true construction of this particular trust deed. I am not sure that if the case turned on that question alone I should take the same view as the learned judge in the court below. But what appears to rne conclusive of this case is the Act oi Parliament. If we were to sanction the view put forward on behalf of the plaintiffs, and to give effect to the very able and ingenious argument of Mr. Powell, we should, it seems to me, be doing the very thing the Acts have endeavoured to prevent and stop. The case

of Attorney-General v. Webster (20 Eq. 483) settled that such property is subject to a charitable trust. On the deed which governs this case I do not suppose any doubt could have been raised. There was an Act of Parliament before the money was borrowed, passed in the year 1883, and called the City of London Parochial Charities Act, 1883. That was an Act passed for the purpose of reorganizing all those London charities, partly because their revenues had been applied in all kinds of ways, and often very recklessly. For that, amongst other reasons, this Act was passed, to provide machinery for the purpose of reorganizing all‘ the London charities. The reorganization, it was provided, was to be done by a scheme. Now, all that was known, or must be taken to have been known, to the gentlemen who had the management of this charity. The scheme itself affecting this charity was not made till February, 1891. In the interval, in 1886, 1887, and 1888, what was done by the trustees for this charity of the rents and profits of the property; that is to say, by the churchwardens? They found that, owing to leases falling in andto their inability to create new leases, they had for a year or two a smaller income. Their income was diminishing by £400 or £500 a year. They still had a considerable income, but one considerably diminished. In those circumstances they thought proper, without consulting anybody except the vestry, to go and borrow money to the extent of £3,000, knowing perfectly well, as we must assume, that a scheme under the Act of 1883 was probably being entertained. Then, having expended for parochial purposes this sum of £3,000, which they had borrowed from the London and County Bank, they come to the court and say that they ought to be recouped. They ask the court to declare that they are entitled to be indemnified. Out of what moneys? Out of the future income of this charity. I pause to consider what right they have to anything of the kind. Under the Charitable Trusts Amendment Act, 1855, it is quite obvious that they could not themselves, without the consent of the Charity Commissioners, have created any mortgage or charge on these trust estates. They knew that, I suppose, or we must assume that they did. In those circumstances they say they will not trouble the commissioners, but will at onoe go and spend £3,000 on what they think is a beneficial work, and take the chance of the court holding that that expenditure is proper. Then they ask the court, in this action, to declare that they are entitled to a charge on the est ites. Let us consider that claim a little

more closely. If what the plaintiffs ask can be done, it appears to me to be not merely evading section 29 of the Act of 1855, but depriving the charity of the protection which Parliament was anxious to secure to it. I quite agree that the words of section 29 are not the aptest words to cover a transaction of this kind. I do not suppose that a transaction quite of this kind was ever really thought of by the Legislature as likely. If it had been I dare say it would have been hit by more apt words. But when you consider these words, I think it would be putting upon them an extremely narrow construction to say that such an operation as this does not transgress the prohibition contained in them. To draw a distinction between “making a charge ” and doing that which necessarily results in the creation of a charge is too subtle. What has been done here is mere machinery for the creation of a charge ; and. if it is true that these gentlemen, the plaintiffs, by borrowing money and spending it for the purposes of the parish have obtained an equitable lien or charge, they are, as it seems to me, distinctly struck at by section 29 of the Act of 1855. I do not think we are forcing the language of that section at all when we say that that cannot, consistently with the provisions of that section, be done. Mr. Powell put it in this way. He said that the plaintiffs have not got a charge. How, then, are they to get one? They ask us to give them a charge. I emphatically say No to that. It would be wrong for us to create such a charge, because, knowing of the Act of 1883, the plaintiffs have been borrowing and spending money. Probably they foresaw that that expenditure would not be sanctioned by the Charity Commissioners. If the plaintiffs’ claim is put as a matter of discretion, I say N0, for those reasons. If it is put as a matter of right, it is contrary to the words of section 29. The modern Acts clearly forbid such an expenditure. I do not say I differ from Romer, J ., as tr the effect of the trust deed. But, without saying ll6 is wrong, I have some doubt upon that part of the case. In the result I think that he is right, and that the appeal must be dismissed.

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