£390,000. YEARLY NEW BUSINESS - 1,000,000. BUSINESS IN FORCE £11,700,000. TRUSTEES. The Right Hon. Lord HALSBURY (Lord High Chancellor of England). The Hon. Mr. Justice KEKEWICH. The Right Hon. Sir JAMES PARKER DEANE, Q.C., D.C.L. WILLIAM WILLIAMS, Esq. RICHARD PENNINGTON, Esq. Bacon, His Honour Judge. Davey, The Right Hon. Lord. CURRENT TOPICS. MR FRANCIS WILLIAM RAIKES, LL.D., Q.C., has been appointed Judge of County Courts (Circuit No. 16) in succession to Judge BEDWELL, deceased. WE PRINT elsewhere an order for transfer of Chancery Witness Actions to Mr. Justice BIGHAM, as an additional judge of Chancery Division for the purpose only of hearing or of trial. The learned judge is to sit from Wednesday last up to the 20th inst. for the purpose of trying these actions. "CONCILIATOR" is not exactly the term which would have been applied to, or the function which was supposed to be fulfilled by, Sir EDWARD FRY when he sat as a judge of the Chancery Division; but, no doubt, in the Court of Appeal a good deal of his asperity disappeared, and having recently successfully dealt with Irishmen, he is now selected as a "Conciliator" of Welshmen. His powers (if any) and duties are derived under the Conciliation Act, 1896, under which, in cases of differences between employers and workmen, the conciliator is to inquire into the causes and circumstances of the difference by communi. cation with the parties, and otherwise endeavour to bring about a settlement of the difference, and report his proceedings to the Board of Trade. WE PRINT elsewhere a set of draft rules of the Supreme Court which have just been published. The most important are those regulating appeals under the Workmen's Compensation Act, 1897. The second schedule to the Act, which excludes the Arbitration Act, 1889, from arbitrations held under the Act, provides that the decision of the county court judge upon a point of law, whether submitted to him by an arbitrator or Mellor, The Right Hon. John W., Q.C., arising in proceedings before himself, shall be final, unless DIRECTORS. Mathew, The Hon. Mr. Justice. Deane, The Right Hon. Sir James Parker, Eilis-Danvers, Edmund Henry, Esq. Frere, Geo. Edgar, Esq. Garth, The Right Hon. Sir Richard, Q.C. Healey, C. E. H. Chadwyck, Esq., Q.C. Johnson, Char es P., jso Kekewich, The Hon. Mr. Justice. Ludlow, The Right Hon. Lord. Masterman, Henry Chauncy, Esq. Meek, A. Grant, Esq. (Devizes). M.P. Mills, Richard, Esq. Morrell, Frederic P., Esq. (Oxford). within the time and in accordance with the conditions prescribed by Rules of the Supreme Court either party appeals to the Court of Appeal. It is now provided by the draft rules that every such appeal shall be by notice of motion in accordance with ord. 59, r. 10; and such notice of motion shall be served and the appeal set down under ord. 58, r. 8, within the time limited by ord. 59, r. 12. Hence the appeal must be brought within twenty-one days from the date of the judgment complained of. The party appealing will have to apply to the county court judge for a signed copy of his notes of the point of law and the facts relating thereto; and in the absence of such notes the Court of Appeal will have power to hear and determine the appeal upon any other evidence or statement of what occurred before the county court judge which may seem sufficient. Subject to the specific rules, appeals under the Act will be governed, so far as practicable, by the rules for appeals from the High Court to the Court of Appeal. THERE WILL be found elsewhere an able and temperate reply by Mr. C. H. MORTON to the strictures of our correspondent "M.A. Oxon." on the issue of a "house list" of candidates for election on the Council of the Incorporated Law Society. We imagined that the question had been threshed out and finally settled in 1894, when the practice was resumed after an intermission of something like twenty years; and the reasons for its resumption appeared to us to be overwhelming. On the one hand, the class of men who are wanted on the Council will not submit to canvass the members; they are willing to give their time and ability to the service of the society if the members think fit to elect them, but nothing would be more repugnant to them than any attempt, by means of the system which was in vogue shortly before 1894, to parade their merits and persuade members to give them their votes. On the other hand, the Council know better than anyone else what class of practice and interests at the time require special represention on their body, and they can have no motive to induce them to nominate persons who are likely to prove inefficient-favouritism in so numerous a Council is impossible. And it should be remembered that nominations by the Council depend entirely for their success upon the question whether the Council are, on the whole, in good odour with the great body of members of the society; if it should ever happen that they are not, the fact of nomination by them will prove a practical disqualification for election of the candidate. IN ANOTHER column we print the further report to the Council of the Incorporated Law Society of the Special Committee on Legal Procedure. This report was adopted by the Council on the 10th of June last. The first subject dealt with is that of service of legal process in England and Scotland, and we are glad to see that the conclusions arrived at by the committee fully corroborate the somewhat strong observations which we felt bound to make on the injustice of the existing state of things in dealing with this matter in a previous volume (vol. 41, pp. 123, 183, 218, 268). The committee have carefully examined into the causes which underlie what appears to be a monstrous contention put forward by Scottish lawyers-viz., that, while the Scottish courts have assumed a free right to serve Englishmen resident in England with Scottish legal process, a similar right ought not to be extended to litigants in English courts to serve Scotsmen in Scotland with English legal process. On the occasion when we previously discussed this question, we published a long and extremely interesting letter from Mr. GEORGE WARDLAW BURNETT, of Edinburgh (ante, vol. 41, p. 271), which dealt very fully with the Scottish view of the matter. In considering the report of the committee, it will be interesting to treat the letter referred to as representing what may be contended on the other side, and it may be said at once that it fully bears out the statement in the report of the nature of Scottish jurisdiction. It may be taken as admitted that the Scottish courts make no distinction as to their jurisdiction between residents in England and foreigners. Mr. BURNETT says in his letter that "domicil is the leading ground of jurisdiction in Scotland." The committee in their report show that this so-called domicil is of an extremely flimsy character. The Scottish court, for example, acquires jurisdiction "by the arrestment (or attachment) of personal property there," and, as the committee point out, this requirement is fulfilled "if an Englishman or Irishman have left an umbrella in a hotel." We cite that merely as one of several instances of the anomalous and absurd nature of the foundation of jurisdiction of the Scottish Our readers will find the other courts over Englishmen. grounds set out in the report. The question of service of process rests entirely on the difference between the origin of jurisdiction in the one country and that in the other, and the committee have therefore done wisely in stating plainly at the outset the various circumstances which found jurisdiction in Scotland, and in pointing out how the jurisdiction so founded is capable of abuse to the prejudice of persons resident in England. THE QUESTION of service of Scottish process in England and of English process in Scotland is one which urgently calls for the attention of the authorities regulating procedure in England. At present the case stands thus. A Scotsman who sues an Englishman resident in England can serve him without any order by what is called "edictal citation "-that is, by lodging a copy of the process with the keeper of the records of the Court of Session, and sending another copy by registered letter to the defender's residence or place of business in England. Contrast this with the case of an Englishman who sues in England a Scotsman resident in Scotland. He is obliged to go to a judge in person to obtain leave, and he must shew (on oath) that his claim is strictly within order 11 of the Rules of the Supreme Court, and that there is no concurrent remedy in Scotland. If he claims for breach of a contract made and to be performed within the jurisdiction of the English court, he must further prove that the defendant is not a domiciled Scotsman. If there is a concurrent remedy in Scotland, he must shew clearly that the comparative cost and convenience" of proceeding in England are so much in favour of doing so that leave ought to be granted. And when he has surmounted all these difficulties and obtained his order, he must serve the Scotsman personally in Scotland. This inequality is, on the face of it, a real hardship and injustice to the English suitor, and, in our opinion, it is one which ought to be removed. But the Scottish opinion, as represented by Mr. BURNETT, is different. His contention is that the jurisdiction of the Scottish court rests upon domicil of some kind, and operating from this base, its process naturally follows the person subject to it wherever he may be; whereas English jurisdiction rests upon service, and therefore can only operate within the limits of its power to direct service. In our opinion this contention is based but upon statute and common law. If a writ is served, the upon a fallacy. English jurisdiction is not based upon service, person served can object to the jurisdiction. Service, it is true, found the jurisdiction, and therefore we welcome the recomis insisted upon as a preliminary necessity, but it does not mendation of the special committee that the present anomalous state of affairs should be brought to the attention of the Rule Committee, "with a view to bringing about reasonable equality between the powers respectively possessed by Englishmen having claims on persons in Scotland, and Scotchmen having claims on persons in England and Ireland." If this recommendation is adopted, we trust the point will not be overlooked that, apart from jurisdiction, it is unjust to Englishmen that judgment in the Scottish court should in any case go against them without either personal service on them of the originating process, or, if that cannot be effected, substituted service by order. THE LAW with regard to murder is in some respects extremely unreasonable. All the authorities agree that whenever an unlawful act is done in furtherance of an intention which is felonious, and death ensue, murder has been committed. Hence we are solemnly told that if A. shoot at a domestic fowl intending to steal it, and accidentally kill B., A. is guilty of murder because of the existence of the felonious intent. If such a case were to be tried to-day, however, it would probably be found impossible to persuade any jury to convict the prisoner on the capital charge; and, if they did so convict, the death sentence would promptly be reduced to a short term of imprisonment through the exercise of the royal prerogative. In fact, to pass sentence of death in such a case would be a mockery, and little better than an outrage on public decency. It is not quite satisfactory that the law should be in such a state. It is undoubtedly good law, but it is obviously bad sense, that a man can be guilty of murder when he had no intention whatever of hurting either the person killed or any other person. He may deserve very severe punishment, but it is rather absurd to hold him guilty of murder. Manslaughter is an offence the enormity of which varies in different cases probably more than any other crime. On the one hand it may be almost indistinguishable from murder; on the other it may amount to little more than an accident. Hence we see the judges awarding penal servitude for life for this crime one day, and the next day ordering a convicted person merely to enter into a recognizance to come up for judgment if called upon. It is quite clear, however, that where death follows from a felonious act, it is murder and not manslaughter, in spite of the absence of any intention to hurt. In the recent case of Reg. v. Collins the act committed by the prisoner is declared by statute to be a felony, and from that act death ensued. He was therefore guilty of murder or nothing Still he was convicted of manslaughter, and it may almost be said that he was so convicted at the invitation of the judge before whom he was tried. We are far from finding fault with the judge for inviting such a verdict. If he had pressed the jury to return either a verdict of murder or one of "not guilty," the jury might have found the one verdict so contrary to their sense of justice that they would in preference have done the great injustice of finding the other, and so letting a malefactor escape a justly-merited penalty. The judge no doubt acted wisely in suggesting that middle course, agreeable both to justice and to common sense, though not to the letter of the law. The law on the subject might well be changed so that a person who causes death by a felonious act without the intention of hurting any person and without any reckless disregard of life, should be properly and regularly convicted of manslaughter and not of murder. It is hardly satisfactory that a jury should be compelled to find a verdict not in accordance with law in order to avoid outraging the good sense and feeling of themselves and of the public. AN INTERESTING feature in the recent case just mentioned was the attack made upon the right of reply possessed by the Attorney-General even where no evidence is called on behalf of a prisoner. This right of the Attorney-General has been allowed by the judges without exception for a very long time, but there has been a considerable lack of uniformity in the practice with regard to extending this right to counsel representing the Attorney-General. The late Baron MARTIN had a strong objection to the exercise of this right. He said it was a bad practice, and that a prosecution on the part of the Crown should be conducted just like any other prosecution; and he confined the right strictly to the Attorney-General in person. BYLES, J., also was of opinion that the right was limited to the Attorney-General in person, and said plainly that if he had the power he would not allow it even in that case. For some years, however, it seems to have been universally admitted that the Solicitor-General, when appearing in his official capacity as representing the Attorney-General, has this right of reply. POLLOCK, C.B., even went so far as to allow the right to a junior counsel who stated that he represented the AttorneyGeneral in a prosecution by the Crown, but the late Chief Baron does not seem to have been followed in this ruling very often. As late as 1877, however, HAWKINS, J., at the Old Bailey, in the case of Reg. v. Wood, said that any barrister who represents the Attorney-General in his absence, in a case which is really prosecuted at the suit of the Crown, has the Attorney-General's right of reply. The matter was considered at a full meeting of the common law judges in December, 1884, and it was resolved by them that in those Crown cases in which the Attorney or Solicitor-General is personally engaged, a reply, when no witnesses are called for the defence, is to be allowed as of right to the counsel for the Crown, and in no others. In spite of this resolution, as late as 1894, when the late Sir FRANK LOCKWOOD was Solicitor-General, his right to reply was challenged in Reg. v. Read (the Southend murder), but POLLOCK, B., decided that the resolution had settled the practice. The right is often spoken of as a "privilege," and so it was referred to in Collins's case. Sir RICHARD WEBSTER, however, repudiated strongly the idea that it is a privilege, and said that it was a responsibility, and a heavy one, which was cast upon a chief law officer of the Crown. In every criminal case the prosecuting counsel ought to observe an attitude of impartiality. Still more ought this attitude to be observed in those comparatively rare and extremely important cases when the Attorney-General himself conducts the prosecution. In such cases his reply should be quite as judicial in tone as the judge's summing-up. Of such a character certainly was Sir R. WEBSTER's reply in the recent case. allowance on taxation of the costs of a country solicitor who A GOOD deal of uncertainty attends the question of the attends the proceedings in London. In Re Foster (8 Ch. D. 598) it was said by BACON, C.J., that the mere fact of the matter of the dispute than the town agent was a sufficient country solicitor being better acquainted with the subjectbut, as was pointed out in Re Storer (26 Ch. D. 189), this reason reason for allowing the charges and expenses of the former; would apply in almost every action, and yet it is certain that the attendance of the country solicitor is only justifiable under that it is justifiable, though it is not equally clear that where exceptional circumstances. Under such circumstances it is clear his costs are allowed the costs of the town agent are necessarily disallowed. In Bell v. Aitkin it was held that there is no inflexible rule against allowing the costs of the attendance of the country solicitor, and in that case his costs appear to have been allowed in addition to those of the town agent. In The Soto (41 W. R. 479; 1893, P. 73) the result of the cases as to the attendance of the country solicitor was stated by BARNES, J., to be that the allowance for such attendance was within the discretion of the taxing officer, and that, although as a general rule no allowance would be made, yet it might be made in exceptional cases where it was necessary that the solicitor who had had the conduct of the case from the commencement, and was acquainted with all the facts, should be present at the trial. But upon deciding that the attendance of the country solicitor was proper in the particular case before him, the learned judge intimated that the taxing officer would have to reconsider the allowance for the attendance of the London agent; because if the country solicitor was allowed for, only such assistance as was necessary for him at the hearing could be allowed. In the recent case of Tousey v. Sheffield, on the other hand, BYRNE, J., while admitting that in rare and exceptional cases the attendance of the country solicitor can be allowed for, even where the evidence is taken entirely by affidavit, has intimated that it is not in accordance with the practice to allow charges also for the attendance of the London agent. He avoids apparent conflict with the decision in The Soto by confining his remarks to the Chancery Division; but it is obvious that the same principles ought to govern the taxation of costs in whatever court an action is tried, and the results arrived at in The Soto appear the most satisfactory. Where the attendance of the country solicitor is justifiable, and his charges and expenses are accordingly allowed, the costs of the town agent should not necessarily be excluded, though they should be adjusted to represent the work and responsibility actually imposed upon him. THE COURT of Appeal have unanimously affirmed the decision of WRIGHT and KENNEDY, JJ., in Phillips v. The London School Board (1898, 1 Q. B. 4). The case arose out of the establishment by the School Board of a superannuation fund for the teachers employed by them. The Board is, of course, the creation of statute, and their statutory powers (under the Elementary Education Acts) do not include a power to establish or manage such a fund; in fact several attempts have been made by the Board to obtain from Parliament an extension of their powers in this direction, but these attempts have not as yet received the sanction of the Legislature. But so long ago as 1888 the Board established a superannuation fund for the benefit of such of their teachers as elected to contribute to it, the fund being formed by deductions from the teachers' salaries without any assistance from the School Board rate. The plaintiff (one of the teachers) agreed to come under this scheme, and deductions were made from her salary accordingly. In 1893 the Board offered to their staff, including the plaintiff, the option of without objection on the part of the Government; and this state of things was borne out by recent reports of British consuls and officials in Persia. The activity of H.M.S. Lapwing on the present cccasion was probably due to an apprehension on the part of the British or the Indian Government that the arms might find their way to the wrong side of the Indian frontier; but it was clear that, when the policies were issued, no effective prohibition existed. Under these circumstances, BIGHAM, J., was of opinion that if the plaintiffs had told the underwriters all they knew about the trade in arms, it would not have affected the judgment of the latter in estimating the risk. Tho defence therefore failed, and judgment was given for the plaintiffs. receiving back their previous contributions with interest or of coming under an amended scheme, and the plaintiff again elected to come under the scheme. Under these circumstances the plaintiff, having resigned her post, sued the Board for the amount of her contributions to the fund as money had and received by the Board to the use of the plaintiff. She has been equally unsuccessful in the Westminster County Court (where her action was brought), in the Divisional Court, and in the Court of Appeal. The main contention on her behalf was that the contract between the Beard and the plaintiff under which the deductions from salary were made was ultra vires of the Board, either because it involved the payment of the management expenses of the fund out of moneys provided by rates, or because it was an undertaking by the Board to administer a trust, both purposes being outside the powers conferred by Parliament upon School Boards. THAT THE rule against clogging the equity of redemption is The short answer to the former point was that the Board did not contract too firmly established to be shaken by anything short of an Act to use rate-provided money in connection with the scheme at all. of Parliament was settled by the decision of the House of Lords The point as to undertaking a trust was not raised in the in Salt v. Marquis of Northampton (40 W. R. 529; 1892, A. C. Divisional Court, and the Court of Appeal did not decide 1); but it is still necessary to consider whether any particular whether the Board had acted ultra vires or not. They decided collateral agreement contained in the mortgage does operate as against the plaintiff on the ground that, the deductions having and the decision of the Court of Appeal this week in Biggs v. a clog on the equity of redemption within the meaning of the rule, been made with the full consent of the plaintiff, and having Hoddinott shews that the court will strive as far as possible to keep been applied in the manner in which she had agreed that they should be applied, she could not claim to have them restored to her mortgagors to their agreements. In that case the mortgage of a as money received to her use. There had been no misapplica-public-house given by the publican to a firm of brewers contained tion of the plaintiff's money, and therefore no failure of cona covenant binding the mortgagor during the continuance of the It was sideration. This short ground is sufficient to dispose of the security to deal exclusively with the mortgagees. action without having recourse to authorities such as Lamb v. contended on behalf of the mortgagor that this covenant was Great Northern Railway Co. (1891, 2Q B. 281) and Hewlett v. According to the statement of the rule in Jennings v. Ward (2 within the rule above referred to, and could not be enforced. Allen (1892, 2 Q. B 662; 1894, A. C. 384), which depended to a "A man," it was there great extent on the construction of the Truck Acts. We should Vern. 520) the contention seems correct. have been glad to have had a definite decision on the powers of said, "shall not have interest for his money, and a collateral a body such as a School Board to establish and administer a advantage besides for the loan of it, or clog the redemption with superannuation fund. Provision has been made by Parlia- any by-agreement." A collateral advantage the covenant in quesment for superannuation allowances to the officers of certain tion doubtless was, but the rule as thus stated goes beyond the local authorities: see, for instance, the Police Act, 1890, and limits to which in practice it has been confined, and in Biggs v. the Poor Law Officers' Superannuation Act, 1896; and similar Hoddinott the earlier part of it was rejected by the Court of powers are often taken in the memoranda of association of Appeal. The fact of the mortgagees having a collateral advanjoint-stock companies; but even where a local authority or tage during the continuance of the security made the security company have, in the absence of express power, established a neither more nor less redeemable. It will be remembered that superannuation fund by means of voluntary deductions from in Salt v. Marquis of Northampton Lord BRAMWELL forcibly salaries, Phillips v. The London School Board shows that it is deprecated the manner in which courts of equity had assumed practically impossible for the employés to go behind the arrange made ostensibly in favour of the borrower, but probably resulting to regulate the relations of borrower and lender; an interference ment to which they have voluntarily assented. in imposing upon him greater difficulty in obtaining advances. The Court of Appeal have adopted the spirit of Lord BRAMWELL'S judgment by refusing to apply the rule under the above circumstances. Apparently a stipulation which is oppressive and unconscionable would fall within the rule, although not directly fettering the right to redeem; but in the view of the Court of Appeal the covenant in question was not of this character. AGAINST PERPETUITIES. I. THE CASE of Fracis, Times, & Co. v. The Sea Insurance Co. (Limited) (decided by BIGHAM, J., in the Commercial Court last Monday) is in many respects remarkable, although no difficult question of law seems to have been involved. It was an action against underwriters on two policies of marine insurance to recover a total loss of the cargo insured by reason of its capture at sea. The goods insured were cases of cartridges and arms, and were described in the respective policies as to be carried to OPTIONS TO PURCHASE IN LEASES AND THE RULE Bahrein and Bunder Abbas "or other Persian Gulf ports." According to the bills of lading the goods were shipped, as to one parcel, for "Bahrein, via Bushire, Muscat optional"; as to the other, for Bunder Abbas. The last-mentioned place and Bushire are ports in the Persian Gulf and in Persian territory; Bahrein and Muscat are not in Persian territory, though they are in or near the Gulf. The ship was intercepted and the goods seized and confiscated by H.M.8. Lapwing, purporting to act for the Persian Government, on the ground that the goods were intended for importation into Persian territory, and that the importation of arms and ammunition was contrary to Persian law. The main defence to the action was that the insurers had concealed a material fact-viz, that the importation of arms into Persia was illegal. It was established in the course of the case that a decree made by the Shah in 1881 forbade the importation of arms and ammunition without the leave of the Government. On the other hand, there was practically no evidence to show that this decree had ever been acted on except in one very doubtful case. In fact the plaintiffs themselves had for about fourteen years been in the habit of openly sending arms to Bushire, where they were publicly sold Does the rule against perpetuities apply to a covenant by the lessor contained in a lease, that the lessee, his executors, administrators, or assigns shall be at liberty, at any time during the term, on giving notice to the lessor, his heirs or assigns, to purchase the fee at a specified price? This is an exceedingly nice question, which has never been decided, and upon which conflicting opinions have been expressed by conveyancers and text-writers. Mr. MARSDEN (Rule against Perpetuities, p. 14) thinks the case governed by London and South-Western Railway Co. v. Gomm (20 Ch. D. 562), unless it can be distinguished on the ground that the covenant runs with the land at law. The editors of Prideaux's Prec. Conv. (vol. 2, 78, n (u), 16th ed.) hold that the rule against perpetuities applies to an option of purchase by a lessee; whilst the late Mr. KEY and the present editors of Key & Elphinstone's Prec. Conv. (vol. 1, p. 770, n. 4th ed., 703, n. 5th ed.) have said that an option of purchase in a lease (however unrestricted as to time) is apparently not open to objection on the score of perpetuity." The late Mr. CHALLIS (Real Property, 173-4, 2nd ed.), in enumerating the exceptions it be contained in the same deed by which a lease is granted? to the rule against per; etuities, makes no mention of an option of purchase in a lease. Nor does Professor J. C. GRAY, of Harvard, whose comprehensive study of the subject of perpetuities is unequalled, suggest that such an option is exempt from the rule: see Gray's Rule against Perpetuities (Boston, U.S.A., 1886), sections 230, 330, pp. 162, 232. It does not in any way regulate or deal with the relations of the landlord and tenant as such; the subject-matter of the agreement to sell is purely collateral to the lease; and if such an option were given by a separate deed made after the lease, could it be contended that it was not governed by the general rule? The arguments in favour of a lessor's covenant in a lease to sell to the lessee not being affected by considerations of perpetuity appear to be these: (1) That such a covenant runs with the land at law; and (2) that it is on the same footing with a covenant to renew a lease. As to authority, there is none. That cited in Key & Elphinstone Prec. Conv. (ubi supra) does not apply. Sir GEORGE JESSEL's dictum in Gomm's case (20 Ch. D. 579) was that a covenant to renew a lease was an exception from the general rule against perpetuities. He said nothing about an option in a lease to purchase the fee. In Re Adams (24 Ch. D. 199, 206, 27 Ch. D. 394) the covenant had been acted upon, and the question of its validity did not arise, and was not decided or observed upon. The argument about the covenant running with the land has been thus set forth in this journal (vol. 39, p. 618): "The option in such a case appears to run with the lease as an integral part thereof (see the judgments in Re Adams) and in consequence to be no more amenable to the rule against perpetuities than any other stipulations in a long lease relating to the land demised." But it is submitted that to call an option of purchase an integral part of a lease goes much beyond what is warranted by the judgments in Re Adams. In that case a certain man had, by the spontaneous act of the lessor's devisee, been admitted to take the benefit of an option of purchase expressly limited in a lease to the lessee, his executors, administrators, or assigns, because he filled the capacity of the lessee's administrator-that is, the capacity of a trustee for those entitled to the lessee's personalty under the Statute of Distribution. He tried, unsuccessfully, to maintain that he took the property purchased as trustee for the lessee's heir, which he happened to be himself. It is submitted that all that this case decided was that, since by the express terms of the contract the unexercised, it was exercised, when exercised by a trustee ex officio of personal estate, for the benefit of those entitled to such personal estate. In other words, the principle of the decision appears to be nothing else than the well-established doctrine that a trustee, to whom a casual benefit falls in consequence of his position as legal owner, must in equity hold that benefit for his cestui que trusts' use. Then as to Re Adams being an authority that the lessor's covenant to sell "runs with the land," all that was said was that under the express words of the Again, there is no better statement of the rule against per- covenant its benefit was intended to be given to the original petuities in its general form than that given by Mr. GRAY lessee's executors, administrators, or assigns. But the (Perpetuities, section 201, p. 144), which is to the effect that this covenantor's assign had voluntarily performed the covenant rule makes void every estate or interest limited to arise upon with the covenantee's administrator. The question therefore the fulfilment of some condition precedent in any real or personal was not in debate, whether the covenant "ran with the land" estate at law or in equity, unless the condition be such as must-that is, was enforceable by the covenantee's assign in his own necessarily be fulfilled (if at all) within the duration of exist- name contrary to the common law rule that rights of action are ing lives and twenty-one years after. Tried by this test, it not directly assignable. The court remarked on the intention of the certainly appears that a covenant contained in a lease for original contractors as expressed in the limitation of the option ninety-Line years (or, indeed, for any term exceeding twenty- of purchase to the lessee's executors, administrators, or assigns; one years and independent of life), and giving to the lessee, but they uttered no pronouncement on the question how far the his executors, administrators, or assigns the option, to be law would give effect to such intention. The thing covenanted exercised at any time during the term, of purchasing the rever- for had been done without going to law for aid; the court had sion from the lessor, his heirs or assigns, offends against the to decide for whose benefit it was done and nothing more. perpetuity-rule in purporting to create an equitable interest in conveyance had been made to a man whose claim to have it land subject to a condition precedent which may be fulfilled at was that he was the trustee ex officio of the covenantee's too remote a time. The equitable interest so attempted to be personalty. He claimed the benefit of it ostensibly as trustee created is strictly an interest subject to a condition precedent; for the covenantee's heir, but really for himself. How could he for in all cases the intention to exercise the option must be duly possibly be allowed in equity to keep the land? expressed before the relation of vendor and purchaser can arise; and such covenants are often so worded that not only the expression of this intention, but also the payment of the price, are conditions precedent to the acquisition by the tenant of a purchaser's rights: see Lord Ranelegh v. Melton, 2 Dr. & Sm. 278, 282; Weston v. Collins, 34 L. J. Ch. 353; Mills v. Haywood, 6 Ch. D. 196, 201. Why, then, have learned writers suggested that an option of purchase must be treated differently in law if At first sight the case certainly appears to fall within the principle laid down by JESSEL, M.R, in London and SouthWestern Railway v. Gomm (supra) in which case it was decided by the Court of Appeal that a covenant by a landowner giving to a corporation, their successors or assigns, the option of purchasing his land from himself, his heir or assigns, at any future time (without limit) was obnoxious to the rule against perpetuities, and so not binding on an assignee of the land with notice of the covenant. "Is there any substantial difference," the Master of the Rolls said, "between a contract for purchase, or an option for purchase, and a conditional limitation? Is there any difference in substance between the case of a limitation to A. in fee, with a proviso that whenever a notice in writing is sent and £100 paid by B. or his heirs to A. or his heirs the estate shall vest in B. and his heirs, and a contract that whenever such notice is given and such payment made by B. or his heirs, A. shall convey to B. and his heirs? It seems to me that in a court of equity it is impossible to suggest that there is any difference between these two cases. There is in each case the same fetter on the estate and on the owners of the estate for all time, and it seems to me to be plain that the rules as to remoteness apply to one case as much as to the other." Suppose, then, that A. grant land to X. and his heirs to the use of B, his executors, administrators, and assigns for ninetynine years, rendering a certain rent, and subject to this term to the use of A. and his heirs, with a proviso that if at any time during the term B., his executors, administrators, cr assigns shall pay to A., his heirs or assigns, a specified sum, the land shall thenceforth be held to the use of B. and his heirs. There can surely be no doubt that this proviso is void for remoteness, for it has long been settled that a shifting use, to be valid, must be so limited as that it must necessarily take effect (if at all) within the period limited by the rule against perpetuities-option given could be nothing but personal estate whilst viz., lives in being and twenty-one years after: Sug. Gilb. Uses, 156, 157, 3rd. ed. But if so, on the principle laid down in Gomm's case and above quoted, a covenant in a lease for ninety-nine years giving to the lessee, his executors, administrators, or assigns the option at any time during the term of purchasing the fee from the lessor, his heirs or assigns, would be equally subject to the rule against perpetuities, and would not therefore be enforceable specifically against the lessor's heirs or assigns. The What is the reason why certain covenants in a lease may, contrary to the general rule of the common law, be directly enforced against or by the lessee's assigns, and also, under statute 32 Hen. 8, c. 34, by or against the assigns of the reversion (for this is all that is meant by covenants running with the land or the reversion)? It is that they are an essential part of the "real contract" of tenancy (a contract of tenancy being said to be partly a real contract and partly a personal contract); so that |