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VOL. XLII., No. 36.

The Solicitors' Journal and Reporter. 24, LINCOLN'S 'INN FIELDS, W.C.

ESTABLISHED 1853. Capital


LONDON, JULY 9, 1898. Debentures and Debenture Stock


Proposal Forms and full information may be had at the Society's Offices.
W. OSCAR NASH, F.I.A., Actuary.

The Editor cannot undertake to return rejected contributions, aud MIDLAND RAILWAY HOTELS.

copies should be kept of all articles sent by writers who are not on LONDON, N.W. Within Shilling cab fare of Gray’s-inn, Inns of Court, Temple Bar, the regular staff of the JOURNAL. MIDLAND GRAND

Law Courts, dc. Buses to all parts every minute. Close to King's

Cross Metropolitan Ry. Station. The New Venetian Rooms are (St. Pancras Station). available for Publicand Private Dinners, Arbitration Meetings, &c.) LIVERPOOL

Close to Central (Midland) Station.



Excellent Restaurant.

In Centre of Town.

CURRENT TOPICS .............................. 625

For Peak of Derbyshire.


Tennis Lawn to Seashore. Goll.



LEGAL NEWS .............
Tariffs on Application.
Telegraphic Address" Midotel.


COURT PAPERS..... Adelphi "Turtle" Soup forwarded from Adelphi Hotel, Liverpool, per quart jar 185.;

REVIEWS ....................

per pint jar, 9s. 6d., carriage paid. Speciality for Invalids.
WILLIAM TOWLE, Manager Midland Railway Hotels.


New ORDERS, &c.


Cases Reported this Week. SUBSCRIBED CAPITAL £1,000,000. PAID-UP £100,000. In the Solicitors' Journal, In the Weekly Reporter. FIDELITY GUARANTEES OF ALL KINDS. ADMINISTRATION AND LUNACY Crawford v. The City of London Electric

Davey v. Williamson. Richards (ClaimLighting Co. 635 ant).....

571 BONDS. MORTGAGE, DEBENTURE, LICENSE, AND CONTINGENCY Dixon, Re. Tousey v. Sheffield 635 Gage, In re. Hill v. Gage.


Fracis, Times, & Co. v, The Sea Insur

Kirshenb im (Appellant) v. Salmon &

Gluckstein (Limited) (Respondents) 573 ance Co. (Lim.)


Molyneux v. Fletcher and Clark HEAD OFFICE: 49, Chancery-lane, W.C. | CITY OFFICE : 56, Moorgate-street, E.C. Groves v. Lord Wimborne...............


Municipal Council of Sydney v. Young 551 M'Leod v. Power

634 New Ixion Tyre Co. (limited) v. Spi'sIMPORTANT TO SOLICITORS

Savil Brothers (Lim.) v. Lingmin...... 633



Trinder, Anderson, & Co. v. Thames In Drawing LEASES or MORTGAGES of

White, Re. Pennell v. Franklin 635

and Mersey Marine Insurance Co. 561 LICENSED PROPERTY

Woo'f v. Hamilton
633 Westport Coal Co, v cPhail

566 To see that the Insurance Covenants include a policy covering the risk of

Suitable clauses, settled by Counsel, can be obtained on application to



Judge of County Courts (Circuit No. 16) in succession to Judge Mortgages Guaranteed on Licensed Properties promptly, without BEDWELL, deceased.

special valuation and at low rates. LEGAL AND GENERAL LIFE ASSURANCE

WE PRINT elsewhere an order for transfer of Chancery SOCIETY.

Witness Actions to Mr. Justice BIGHAM, as an additional judge of ESTABLISHED OVER HALF A CENTURY.

Chancery Division for the purpose only of hearing or of trial.

The learned judge is to sit from Wednesday last up to the 20h 10, FLEET STREET, LONDON.

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. AND

cation with the parties, and otherwise endeavour to bring about SECURE.

a settlement of the difference, and report his proceedings to the

Board of Trade. FUNDS - £3,000,000. INCOME

£390,000. YEARLY NEW BUSINESS - 71,000,000. BUSINESS IN FORCE - £17,700,000.

WE PRINT elsewhere a set of draft rules of the Suprem, TRUSTRES.

Court which have just been published. The most important The Right Hon. Lord HALSBURY (Lord High Chancellor of England). The Hon. Mr. Justice KEKEWICH.

are those regulating appeals under the Workmen's Compensation The Right Hon. Sir JAMES PARKER DEANE, Q.C., D.C.L.

Act, 1897. The second schedule to the Act, which excludes the WILLIAM WILLIAMS, Esq. RICHARD PENNINGTON, Esq.

Arbitration Act, 1889, from arbitrations held under the Act, DIRECTORS.

provides that the decision of the county court judge upon a Bacon, His Honour Judge.

Mathew, The Hon. Mr. Justice.
Davey, The Right Hon. Lord.
Meek, A. Grant, Esq. (Devizes).

point of law, whether submitted to him by an arbitrator or Deane, The Right Hon. Sir James Parker, Mellor, The Right Hon. Johó W., Q.C., arisiog in proceedings before himself, shall be final, unless Q.C., D.C.L.

Eilis-Danvers, Edmund Henry, Esq. Mills, Richard, Esq.

within the time and in accordance with the conditions prescribed Finch, Arthur J., Esq.

Morrell, Frederic P., Esq.(Oxford).
Frere, Geo. Edgar, Esq.
Pennington, Richard, Esq.

by Rules of the Supreme Court either party appeals to the Court Garth, The Right Hon. Sir Richard, Q.C. Rowcliffe, Edward Lee, Esq.

of Appeal. It is now provided by the draft rules that every Healey, C. E. #. Chadwyck, Esq., Q.C. Saltwell, Wm. Henry, Esq. Johnson, Char es P., i 80 Williams, C. Reyuolda, Esq.

such appeal shall be by notice of motion in accordance with Kekewich, The Hon. Mr. Justice. Williams, Romer, Esq.

ord. 59, r. 10; and such notice of motion shall be served and Ludlow, The Right Hon. Lord.

Williams, William, Esq. Masterman, Henry Chauncy, Esq.

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 courts over Englishmen. Our readers will find the other twenty-one days from the date of the judgment complained of. grounds set out in the report. The question of service of The party appealing will have to apply to the county court process rests entirely on the difference between the origin of judge for a signed copy of his notes of the point of law and the jurisdiction in the one country and that in the other, and the facts relating thereto; and in the absence of such notes the committee have therefore done wisely in stating plainly at the Court of Appeal will have power to hear and determine the outset the various circumstances which found jurisdiction in appeal upon any other evidence r statement of what occurred Scotland, and in pointing out how the jurisdiction so founded is before the county court judge which may seem sufficient. capable of abuse to the prejudice of persons resident in England. 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.

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. THERE WILL be found elsewhere an able and temperate reply by At present the case stands thus. A Scotsman who sues Mr. C. H. Morton to the strictures of our correspondent "M.A. Englishman resident in England can serve him without any Oxon.” on the issue of a "house list " of candidates for election order by what is called "edictal citation"—that is, by lodging a on the Council of the Incorporated Law Society. We imagined copy of the process with the keeper of the records of the Court that the question had been threshed out and finally settled in of Session, and sending another copy by registered letter to the 1894, whọn the practice was resumed after an intermission of defender's residence or place of business in England. Contrast something like twenty years; and the reasons for its resumption this with the case of an Englishman who sues in England a appeared to us to be overwhelming. On the one hand, the Scotsman resident in Scotland. He is obliged to go to a judge class of men who are wanted on the Council will not submit to in person to obtain leave, and he must show (on oath) that his canvass the members; they are willing to give their time and claim is strictly within order 11 of the Rules of the Supreme ability to the service of the society if the members think fit to Court, and that there is no concurrent remedy in Scotland. If elect them, but nothing would be more repugnant to them than he claims for breach of a contract made and to be performed any attempt, by means of the system which was in vogue shortly within the jurisdiction of the English court, he must_further before 1894, to parade their merits and persuade members to prove that the defendant is not a domiciled Scotsman. If there give them their votes. On the other hand, the Council know is a concurrent remedy in Scotland, he must shew clearly that better than anyone else what class of practice and interests at the "comparative cost and convenience” of proceeding in the time require special represention on their body, and they England are so much in favour of doing so that leave ought can have no motive to induce them to nominate persons who are to be granted. And when he has surmounted all these likely to prove inefficient-favouritism in so numerous a Council | difficulties and obtained his order, he must serve the Scotsis impossible. And it should be remembered that nominations man personally in Scotland. This inequality is, on the face by the Council depend entirely for their success upon the ques- of it, a real hardship and injustice to the English suitor, tion whether the Council are, cn the whole, in good odour with and, in our opinion, it is one which ought to be removed. the great body of members of the society ; if it should ever But the Scottish opinion, as represented by Mr. BURNETT, is happen that they are not, the fact of nomination by them will different. His contention is that the jurisdiction of the Scottish prove a practical disqualification for election of the candi- court rests upon domicil of some kind, and operating from this date.

base, its process naturally follows the person subject to it wher

ever he may be; whereas English jurisdiction rests upon serIN ANOTHER column we print the further report to the Council vice, and therefore can only operate within the limits of its of the Incorporated Law Society of the Special Committee on power to direct service. In our opinion this contention is based

upon a fallacy. English jurisdiction is not based upon service, Legal Procedure. This report was adopted by the Council on but upon statute and common law. If a writ is served, the the 10th of June last. The first subject dealt with is that of person served can object to the jurisdiction. Service, it is true, service of legal process in England and Scotland, and we are glad to see that the conclusions arrived at by the committee found the jurisdiction, and therefore we welcome the recom

is insisted upon as a preliminary necessity, but it does not fully corroborate the somewhat strong observations which we mendation of the special committee that the present anomalous felt bound to make on the injustice of the existing state of state of affairs should be brought to the attention of the Rule things in dealing with this matter in a previous volume (vol. Committee, “ with a view to bringing about reasonable equality 41, pp. 123, 183, 218, 268). The committee have carefully between the powers respectively possessed by Englishmen examined into the causes which underlie what appears to be a having claims on persons in Scotland, and Scotchmen having monstrous contention put forward by Scottish lawyers-viz., claims on persons in England and Ireland.” If this recom, that, while the Scottish courts have assumed a free right to mendation is adopted, we trust the point will not be overlooked serve Englishmen resident in England with Scottish legal that, apart from jurisdiction, it is unjust to Englishmen that process, a similar right ought not to be extended to litigants in judgment in the Scottish court should in any case go against English courts to serve Scotsmen in Scotland with English legal them without either personal service on them of the originating process. On the occasion when we previously discussed this question, we published a long and extremely interesting letter process, or, if that cannot be effected, substituted service by

order. 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 THE LAW with regard to murder is in some respects extremely interesting to treat the letter referred to as representing what unreasonable. All the authorities agree that whenever an may be contended on the other side, and it may be said at once unlawful act is done in furtherance of an intention which is that it fully bears out the statement in the report of the nature felonious, and death ensue, murder bas been committed. Hence of Scottish jurisdiction. It may be taken as admitted that the we are solemnly told that if A. shoot at a domestic fowl intending Scottish courts make no distinction as to their jurisdiction to steal it, and accidentally kill B., A. is guilty of murder because between residents in Eogland and foreigrers. Mr. BURNETT of the existence of the felonious intent. If such a case were to says in his letter that "domicil is the leading ground of juris- be tried to-day, however, it would probably be found impossible diction in Scotland.” The committee in their report show that to persuade any jury to convict the prisoner on the capital this so-called domicil is of an extremely flimsy character. The charge; and, if they did so convict, the death sentence would Scottish court, for example, acquires jurisdiction" by the arrest- promptly be reduced to a short term of imprisonment through ment (or attacbment) of personal property there," and, as the the exercise of the royal prerogative. In fact, to pass sentence committee point out, this requirement is fulfilled "if an English- of death in such a case would be a mockery, and little better man or Irishman have left an umbrella in a hotel.” Wo cite than an outrage on public decency. It is not quite satisfactory that merely as one of several instances of the anomalous and that the law should be in such a state. It is undoubtedly good absurd nature of the foundation of jurisdiction of the Scottish 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 cast upod a chief law officer of the Crown. In every criminal person killed or any other person. He may deserve very severe case the prosecuting counsel ought to observe an attitude of punishment, but it is rather absurd to hold him guilty of impartiality. Still more ought this attitude to be observed in murder. Manslaughter is an offence the enormity of which those comparatively rare and extremely important cases when varies in different cases probably more than any other crime. the Attorney-General himself conducts the prosecution. In On the one hand it may be almost indistinguishable from such cases his reply should be quite as judicial in tone as the murder ; on the other it may amount to little more than an judge's summing-up. Of such a character certainly was Sir R. accident. Hence we see the judges awarding penal servitude WEBSTER's reply in the recent case. 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 allowance on taxation of the costs of a country solicitor who

A GOOD deal of uncertainty attends the question of the manslaughter, in spite of the absence of any intention to hurt. In the recent case of Reg. v. Collins the act committed by the attends the proceedings in London. In Re Foster (8 Ch. D. prisoner is declared by statute to be a felony, and from that act 598) it was said by Bacon, C.J., that the mere fact of the death ensued. He was therefore guilty of murder or nothing. matter of the dispute than the town agent was

country solicitor being better acquainted with the subject

a sufficient Still he was convicted of manslaughter, and it may almost be reason for allowing the charges and expenses of the former; said that he was so convicted at the invitation of the judge before but, as was pointed out in Re Storer (26 Ch. D: 189), this reason whom he was tried. We are far from finding fault with the judge for inviting such a verdict. If he had pressed the jury attendance of the country solicitor is only justifiable under

would apply in almost every action, and yet it is certain that the jury might have found the one verdict so contrary to their sense that it is justifiable, though it is not equally clear that where

exceptional circumstances. Under such circunstances it is clear of justice that they would in preference have done the great his costs are allowed the costs of the town agent are necessarily injustice of finding the other, and so letting a malefactor disallowed. In Bell v. Aitkin it was held that there is no escape a justly-merited penalty. The judge no doubt acted inflexible rule against allowing the costs of the attendance of wisely in suggesting that middle course, agreeable both to the country solicitor, and in that case his costs appear to have justice and to common sense, though not to the letter of the law. been allowed in addition to those of the town agent. In The The law on the subject might well be changed so that a person Soto (41 W. R. 479; 1893, P. 73) the result of the cases as who causes death by a felonious act without the intention of to the attendance of the country solicitor was stated by BARNES, hurting any person and without any reckless disregard of life, J., to be that the allowance for such attendance was within the should be properly and regularly convicted of manslaughter and discretion of the taxing officer, and that, although as a general not of murder. It is hardly satisfactory that a jury should be rule nɔ allowance would be made, yet it might be made in compelled to find a verdict not in accordance with law in order to avoid outraging the good sense and feeling of themselves and exceptional cases where it was necessary that the solicitor who of the public.

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 AN INTERESTING feature in the recent case just mentioned was was proper in the particular case before him, the learned judge the attack made upon the right of reply possessed by the intimated that the taxing officer would have to reconsider the Attorney-General even where no evidence is called on behalf allowance for the attendance of the London agent; because if the of a prisoner. This right of the Attorney-General has been country solicitor was allowed for, only such assistance as was allowed by the judges without exception for a very long time, necessary for him at the hearing could be allowed. In the but there has been a considerable lack of uniformity in the recent case of Tousey v. Sheffield, on the other hand, BYRNE, J., practice with regard to extending this right to counsel repro- while admitting that in rare and exceptional cases the attendsenting the Attorney-General. The late Baron MARTIN had a ance of the country solicitor can be allowed for, even where the strong objection to the exercise of this right. He said it was a evidence is taken entirely by affidavit, has intimated that it is bad practice, and that a prosecution on the part of the Crown not in accordance with the practice to allow charges also for the should be conducted just like any other prosecution; and he attendance of the London agent. Ho avoids apparent conflict confined the right strictly to the Attorney-General in person. with the decision in The Soto by confining his remarks to the BYLES, J., also was of opinion that the right was limited to the Chancery Division ; but it is obvious that the same principles Attorney-General in person, and said plainly that if he had the ought to govern the taxation of costs in whatever court an power he would not allow it even in that case.

For some years,

action is tried, and the results arrived at in The Soto appear the however, it seems to have been universally admitted that the most satisfactory. Where the attendance of the country Solicitor-General, when appearing in his official capacity as solicitor is justifiable, and his charges and expenses are accordrepresenting the Attorney-General, has this right of reply. ingly allowed, the costs of the town agent should not necessarily POLLOCK, C.B., even went so far as to allow the right to be excluded, though they should be adjusted to represent the a junior counsel who stated that he represented the Attorney work and responsibility actually imposed upon him. General in a prosecution by the Crown, but the late Chief Baron does not seem to have been followed in this ruling

As late as 1877, however, HAWKINS, J., at THE COURT of Appeal have unanimously affirmed the decision the Old Bailey, in the case of Reg. v. Wood, said that any of Wright and KENNEDY, JJ., in Phillips v. The London School barrister who represents the Attorney-General in his absence, Board (1898, 1 Q. B. 4). The case arose out of the establishin a case which is really prosecuted at the suit of the Crown, ment by the School Board of a superannuation fund for the has the Attorney-General's right of reply. The matter was teachers employed by them. The Board is, of course,

the considered at a full meeting of the common law judges in creation of statute, and their statutory powers (under the December, 1884, and it was resolved by them that in those Elementary Education Acts) do not include a power to establish Crown cases in which the Attorney or Solicitor-General is per- or manage such a fund; in fact several attempts have been sonally engaged, a reply, when no witnesses are called for the made by the Board to obtain from Parliament an extension of defence, is to be allowed as of right to the counsel for the their powers in this direction, but these attempts have not as Crown, and in no others. In spite of this resolution, as late as yet received the sanction of the Legislature. But so long ago 1894, when the late Sir FRANK LOCKWOOD was Solicitor-General, as 1888 the Board established a superannuation fund for the his right to reply was challenged in Reg. v. Read (the Southend benefit of such of their teachers as elected to contribute to it, murder), but Pollock, B., decided that the resolution had settled the fund being formed by deductions from the teachers' salaries the practice. The right is often spoken of as a "privilege,” and without any assistance from the School Board rate. The plainso it was referred to in Collins's case. Sir RICHARD WEBSTER, tiff (one of the teachers) agreed to come under this schemo, and however, repudiated strongly the idea that it is a privilege, deductions were made from her salary accordingly. In 1893 the and said that it was a responsibility, and a heavy one, which was Board offered to their staff, including the plaintiff, the option of

very often.

It was

receiving back their previous contributions with interest or of without objection on the part of the Government; and this state coming under an amended scheme, and the plaintiff again of things was borne out by recent reports of British consuls and elected to come under the scheme. Under these circumstances officials in Persia. The activity of H.M.S. Lapwing on the prethe plaintiff, having resigned her post, sued the Board for the sent cccasion was probably due to an apprehension on the amount of her contributions to the fund as money had and part of the British or the Indian Government that the arms received by the Board to the use of the plaintiff. She has been might find their way to the wrong side of the Indian frontier; equally unsuccessful in the Westminster County Court (where but it was clear that, when the policies were issued, no effective her action was brought), in the Divisional Court, and in the prohibition existed. Under these circumstances, BIGHAM, J., Court of Appeal. The main contention on her behalf was that was of opinion that if the plaintiffs had told the underwriters the contract between the Bcard and the plaintiff under which all they know about the trade in arms, it would not have the deductions from salary were made was ultra vires of affected the judgment of the latter in estimating the risk. The the Board, either because it involved the payment of the defence therefore failed, and judgment was given for the management expenses of the fund out of moneys provided by plaintiffs. 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 Boarde. The short

THAT THE rule against clogging the equity of redemption is 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 ail. 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 hud 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 con

a covenant binding the mortgagor during the continuacce of the sideration. This short ground is sufficient to dispose of the security to deal exclusively with the mortgagees. action without baving recourse to authorities such as Lamb v.

contended on behalf of the mortgagor that this covenant was Great Northern Railway Co. (1891, 2 Q. B. 281) and Hewlett v.

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

According to the statement of the rule in Jennings. v. Ward (2 great extent on the construction of the Truck Acts. We should Vern. 520) the contention seems correct. "A man,” it was there 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 Jimits to which in practice it has been confined, and in Biggs v. the Poor Law Officers' Superannuation Act, 1896 ; and similar Loddinott 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 peither more nor less redeemable. It will be remembered that superannuation fund by means of voluntary deductions from in Sılt 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 BRAM

WELL's judgment by refusing to apply the rule under the above THE CASE of Fracis, Times, & Co. v. The Sea Insurance Co. circumstances. Apparently a stipulation which is oppressive (Limited) (decided by BIGHAM, J., in the Commercial Court last and unconscionable would fall within the rule, although not Monday) is in many respects remarkable, although no difficult directly fettering the right to redeem; but in the view of the question of law seems to have been involved. It was an action Court of Appeal the covenant in question was not of this against underwriters on two policies of marine insurance to character. 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 Babrein and Bunder Abbas" or other Persian Gulf ports.

AGAINST PERPETUITIES. According to the bills of lading the goods were shipped, as to one parcel, for “Bahrein, via Bushire, Muscat optional”; as

I. to the other, for Bunder Abbas. The last-mentioned place and Does the rule against perpetuities apply to a covenant by the Busbire are ports in the Persian Gulf and in Persian territory ; leesor contained in a lease, that the lefsee, his executors, adBahrein and Muscat are not in Persian territory, though they ministrators, or assigns shall be at liberty, at any time during are in or near the Gulf. The ship was intercepted and the the term, on giving notice to the lessor, his heirs or assigns, to goods seized and confiscated by H.M.8. Lapwing, purporting to purchase the fee at a specified price? This is an exceedingly act for the Persian Government, on the ground that the goods nice question, which has never been decided, and upon which were intended for importation into Persian territory, and that conflicting opinions have been expressed by conveyancers and the importation of arms and ammunition was contrary to text-writers. Mr. MARSDEN (Rule against Perpetuities, p. 14) Persian law. The main defence to the action was that the thinks the case governed by Jondon and South-Western Railway insurers had concealed a material fact-viz, that the importation Co. v. Gomm (20 Ch. D. 562), unless it can be distinguished on of arms into Persia was illegal. It was established in the the ground that the covenant runs with the land at law. The course of the case that a decree made by the Sbah in 1881 editors of Prideaux's Prec. Conv. (vol. 2, 78, n (u), 16th ed.) for bado the importation of arms and ammunition without the bold that the rule against perpetuities applies to an option of leave of the Government.

On the other hand, there was purchase by a lessee; whilst the late Mr. Key and the present practically no evidence to show that this decree had ever been editors of Key & Elphinstone's Prec. Conv. (vol. 1, p. 770, n. 4th acted on except in one very doubtful case. In fact the plaintiffs ed., 703, n. 5th ed.) have said that " an option of purchase in a themselves båd for about fourteen years been in the habit of lease (however unrestricted as to time) is apparently not open openly sending arms to Busbire, where they were publicly sold to objection on the score of perpetuity." The late Mr. OHALLIS

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(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 perie:uities, makes no mention of an option It does not in any way regulate or deal with the relations of of purchase in a lease. Nor does Professor J. C. GRAY, of the landlord and tenant as such ; the subject matter of the Harvard, whose comprehensive study of the subject of per- agreement to sell is purely collateral to the lease; and if such petuities is unequalled, suggest that such an option is exempt an option were given by a separate deed made after the lease, from the rule : see Gray's Rule against Perpetuities (Boston, could it be contended that it was not governed by the general U.S.A., 1886), sections 230, 330, pp. 162, 232.

rule ? At first sight the case certainly appears to fall within the The arguments in favour of a lessor's covenant in a lease to principle laid down by JESSEL, M.R, in London and South- sell to the lessee not being affected by considerations of perWestern Railway v. Gomm (supra) in which case it was decided petuity appear to be these : (1) That such a covenant runs by the Court of Appeal that a covenant by a landowner giving with the land at law; and (2) that it is on the same footing to a corporation, their successors or assigns, the option of with a covenant to renew a lease. As to authority, there is purchasing his land from himself, his heir or assigns, at any none. That cited in Key & Elphinstone Prec. Conv. (ubi supra) future time (without limit) was obnoxious to the rule against does not apply. Sir GEORGE JESSEL's dictum in Gomm's case (20 perpetuities, and so not binding on an assignee of the land Ch. D. 579) was that a covenant to renew a lease was an excepwith notice of the covenant. “Is there any substantial differ- tion from the general rule against perpetuities. He said nothing ence," the Master of the Rolls said, “between a contract for about an option in a lease to purchase the fee. In Re Adams (24 purchase, or an option for purchase, and a conditional limitation ? Ch. D. 199, 206, 27 Ch. D. 394) the covenant had been acted Is there any difference in substance between the case of a upon, and the question of its validity did not arise, and was not limitation to A. in fee, with a proviso that whenever a notice in decided or observed upon. writing is sent and £100 paid by B. or his heirs to A. or his The argument about the covenant running with the land has heirs the estate shall vost in B. and his heirs, and a contract been thus set forth in this journal (vol. 39, p. 618): "The that whenever such notice is given and such payment made by option in such a case appears to run with the lease as an B. or his heirs, A. shall convey to B. and his heirs ? It seems integral part thereof (see the judgments in Re Adams) and in to me that in a court of equity it is impossible to suggest that consequence to be no more amenable to the rule against perthere is any difference between these two cases. There is in petuities than any other stipulations in a long lease relating to each case the same fetter on the estate and on the owners of the the land demised.” But it is submitted that to call an option estate for all time, and it seems to me to be plain that the rules of purchase an integral part of a lease goes much beyond what as to remoteness apply to one case as much as to the other.” is warranted by the judgments in Re Adams. In that case a Suppose, then, that A. grant land to X. and his heirs to the certain man had, by the spontaneous act of the lessor's deviseo, use of B, his executors, administrators, and assigns for ninety- been admitted to take the benefit of an option of purchase nine years, rendering a certain rent, and subject to this term to expressly limited in a lease to the lessee, his executors, administhe use of A. and his heirs, with a proviso that if at any time trators, or assigns, because he filled the capacity of the lessee's during the term B., his executors, administrators, cr assigns administrator—that is, the capacity of a trustee for those entitled sball

pay to A., bis heirs or assigns, a specified sum, the land to the lessee's personalty under the Statute of Distribution. He shall thenceforth be held to the use of B. and his heirs. There tried, unsuccessfully, to maintain that he took the property can surely be no doubt that this proviso is void for remoteness, purchased as trustee for the lessee's heir, which

be for it has long been settled that a shifting use, to be valid, happened to be himself. It is submitted that all that this case must be so limited as that it must necessarily tako effect (if at decided was that, since by the express terms of the contract the 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. unexercised, it was exercised, when exercised by a trustee ex Uses, 156, 157, 3rd. ed. But it so, on the principle laid down officio of personal estate, for the benefit of those entitled to such in Gomm's case and above quoted, a covenant in a lease for personal estate. In other words, the principle of the decision ninety-nine years giving to the lessee, his executors, ado:inis- appears to be nothing else than the well-established doctrine trators, or assigns the option at any time during the term of that a trustoe, to whom a casual benefit falls in consequence of purchasing the fee from the lessor, his heirs or assigns, would his position as legal owner, must in equity hold that benefit for be equally subject to the rule against perpetuities, and would his cestui que trusts' use. Then as to Re Adams being an not therefore be enforceable specifically against the lessor's heirs authority that the lessor's covenant to sell “runs with the land,' or assigns.

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 overy estate or interest limited to arise upon with the covenautee'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 covenanteo’s assign in his own Decessarily 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 bad 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. The 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 etrictly an interest subject to a condition precedent; for the covenantee's heir, but really for himself. How could he fur in all cases the intention to exercise the option must be duly possibly be allowed in equity to keep the land ? expressed beforo the relation of vendor and purchaser can What is the reason why certain covenants in a lease may, conarise ; and such covenants are often so worded that not only the trary to the general rule of the common law, be directly enforced expression of this intention, but also the payment of the price, against or by the lessee's assigns, and also, under statute 32 are conditions precedent to the acquisition by the tenant of a Hen. 8, c. 34, by or against the assigns of the reversion (for purchaser's rights : see Lord Ranelegh v. Melton, 2 Dr. & Sm. 278, this is all that is meant by covenants running with the land or 282; Weston v. Collins, 34 L. J. Ch. 353 ; Mills v. Haywood, the reversion)? It is that they are an essential part of the "real 6 Có. D. 196, 201. Why, then, have learned writers suggested contract” of tenancy (a contract of tonancy being said to be that an option of purchase must be treated differently in law it partly a real contract and partly a personal contract); so that

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