everyone who succeeds to the place of either tenant or landlord is liable upon, or entitled to enforce, the obligations so created by reason of the privity of estate between him and the other, although there is no privity of personal contract between them Walker's case (3 Rep. 22, 23), Stevenson v. Lambard (2 East 575, 580). Covenants of this kind are those which "extend to a thing in esse, parcel of the demise" Spencer's case (5 Rep. 16); which "directly affect the nature, quality, or value of the thing demised, or the mode of occupying it": LUSH, J., L. R. 3 Q. B. 746, citing 10 East 136; and they bind or benefit assigns without express mention of them. Such are covenants to pay rent or to repair. It is impossible to go through all the cases here; but it will, it is believed, be found that all the covenants which have been allowed to fall within, not only the first, but the second resolution in Spencer's case, relate to matters to be performed or observed between the parties in their relation of landlord and tenant; whilst covenants dealing with matters which stand outside that relation have been considered to be collateral, and so not to bind the parties' assigns, though named. Now, it has been held that an independent option of purchase, which does not mention the vendor's heirs or assigns is personal to him and not enforceable after his death: Stecker v. Dean (16 Beav. 161); and it seems to follow from this that if a contract giving such an option specified the vendor's heirs and assigns, but did not mention the purchaser's representatives, it would only be enforceable by the purchaser himself in his lifetime. Why should such a contract receive a different construction because contained in a deed granting a lease? It has nothing to do with the relation of landlord and tenant as such. Could it be enforceable at law, say, against the assigns of the reversion when not expressly bound, and taking, let us suppose, for value without notice of the lease or covenant? If not, it is not on a footing with those covenants, which run with the land and with the reversion. And in any case it is submitted that an option to purchase the reversion is not an integral part of the lease; that it is no part of that real contract between landlord and tenant which is enforceable against or by assigns by reason of the privity of estate, when there is no privity of contract. There is, moreover, no analogy as regards remoteness between the usual covenants in a lease which do run with the land and an option of purchase. The former do not purport to create any interest in the land leased subject to a condition precedent to be fulfilled at a future time. But even if a lessor's covenant giving an option of purchase does run with the land at law, why should that except it from the operation of the rule against perpetuties? A covenant may unquestionably run with the land at law and be undoubtedly part of the consideration for the lease and yet be partly void for illegality; as in the case of a tenant's covenant to pay with other taxes a tax, like property tax, imposed by statute on the landlord only: Gaskell v. King (11 East 165); Howe v. Synge (15 East 440); Festing v. Taylor (3 B. & S. 230, 231). So covenants relating to the use of the premises generally run with the land at law; but it would scarcely be contended that a covenant to keep open the demised premises as a brothel would be valid on that ground. This instance may appear extreme; but the principle is the same. Covenants which tend to create a perpetuity are against the policy of the law equally with Covenants tending to encourage immorality: see per PARKE, B., Egerton v. Brownlow (4 H. L. C. 1, 125). How can an objection of this kind, which goes to the substance of the covenant, be removed by any consideration relating solely to the question whether the benefit or burden of the contract be assignable? A better argument for pronouncing an option of purchase in a lease to be exempt from the rule against perpetuities is found in the fact that covenants in leases for any term of years or lives to renew the leases, either once or oftener or for ever, are allowed to be valid and not to be affected by considerations of perpetuity: Ross v. Worsop (1 Bro. P. C. 281); Pendred v. Griffith (ib. 314); Sweet v. Anderson (2 Bro. P. C. 256); Hare v. Burges (4 K, & J. 45, 57); Pollock Booth V. (Ir. R. 9 Eq. 229). One explanation of this is that given by Lord DAVEY, when at the bar (arguendo in London and South-Western Railway Co. v. Gomm, 20 Ch. D. 579), that such covenants run with the land at law. But it is submitted, for the reasons stated above, that this alone is not a sufficient explanation. A better reason for the validity of covenants to renew is given by Mr. GRAY (Perpetuities, sections 230, 330n, pp. 162, 232), when he says that the covenant to renew is part of the lessee's present interest, and the right of a present possessor of land to continue or drop his possession is not a right subject to a condition precedent; and he cites Moore v. Clench (1 Ch. D. 447, 452), where JESSEL, M.R., said, "The principle on which you can enforce the specific performance of such a covenant is that it creates an equitable estate from the time of its execution": see also Buckland v. Papillon (L. R. 1 Eq. 477, 2 Ch. 67). This explanation appears sufficient in the case of an absolute covenant to renew a lease for years, but is not equally satisfactory where the right of renewal is limited to arise only on giving notice within a particular time and paying a specified fine. But covenants containing such conditions had been considered to be valid long before there was any question of applying the rule against perpetuities to the equitable interest created by a covenant to convey land at a future time. When, therefore, the rule was applied to such covenants in Gomm's case, covenants to renew leases had to be recognized as an exception. And if this exception is to be justified by the principle laid down in Moore v. Clench, this can only be accomplished by doing some violence to the language of a covenant to renew on giving notice and paying a fine, and by holding that in such a case the equitable interest created is not an interest to arise in future on fulfilment of a condition precedent, but a present interest defeasible on the condition subsequent of not giving due notice to renew or paying the fine. But there is no reason why any such strained construction should be applied to covenants giving an option to purchase the reversion. Their validity is not an accomplished fact of long standing which has to be explained so as to fit in with principles subsequently evolved. And it is further submitted that there is a true distinction between a covenant to renew and a covenant giving an option of purchase. The former may well be treated as a continuation in equity of the original term, and as running with the land at law, because the contract is merely for a prolongation of the relation of landlord and tenant, of the "real contract" created by the lease; it is merely an agreement extending in equity for a longer period the same interest as the tenant takes under the lease at law. But an option of purchase gives the tenant the right, if he will, to claim at a future time an interest in the land leased entirely different from that which he takes under his lease at law; it enables him to claim to be in equity, not tenant for a longer term, but freeholder in fes-that is, to have the land for his own real estate altogether discharged from the contract of tenancy. Such a contract certainly does limit in the tenant's favour an equitable interest in the land leased to arise at a future time upon the fulfilment of the condition precedent of his duly signifying his intention to exercise the option, and, in some cases, paying the price. In the case of a covenant to renew a lease for years or lives, even for ever, there is from the beginning in equity a reversion in fee vested in the lessor, which is untouched by the covenant; but when a covenant gives the option of purchasing the reversion in fee, the whole inheritance is in equity limited to shift from lessor to lessee on the exercise of the option. This brings us back to the principle of Gomm's case, that any shifting limitation of the equitable estate in land is void for remoteness where it would be void for the same reason if made of the legal estate by way of shifting use or executory devise. Upon these considerations, it is submitted that a lessor's covenant in a lease, giving to the lessee, his executors, administrators, or assigns the option of purchasing the reversion from the lessor, his heirs or assigns, must, in order to be completely valid, be so expressed that the option must necessarily be exercised (if at all) within the limits of time allowed by the rule against perpetuities. T. CYPRIAN WILLIAMS. THE LAND TRANSFER RULES. IX. Part III. (continued).—Charges (continued).—In our last article (ante, p. 607) we pointed out that in some cases it might be desirable for the purpose of effecting a charge to take a transfer of the land on the register, the whole transaction being explained by a concurrent mortgage in common form off the register. It is, however, clear that, if practicable, the mortgagee should be induced to accept a registered charge, so as to avoid any undue dislocation of the machinery of the Acts. Though it seems to be the case that a registered charge does not have the same over-reaching effect as a transfer of the land (e.g., a lis pendens or a Crown debt would not be displaced), yet the chargee gets a statutory charge, and it is conceived that the charge would, by reason of section 49 of the Act of 1875, and of section 83 (1) as replaced and amended by the First Schedule to the Act of 1897, have priority over any unregistered disposition. Moreover, subject to an entry to the contrary, the registered chargee has the benefit of an implied covenant to pay, the right to go into possession, the right to foreclose, and a power of sale (Act of 1875, ss. 23, 25, 26, and 27), in fact, the usual powers of a mortgagee. There may, perhaps, be some objection to the implied covenant to pay, as that is made only with the registered proprietor for the time being, which may conceivably render it necessary for the personal representative of a deceased proprietor to be registered before calling in the money. Interest on the mortgage debt accruing whilst no proprietor was registered could, at any rate, be claimed successfully by the proprietor when registered. Again, perhaps there may be a doubt whether when a chargee is in possession he will have the power to lease conferred by section 18 of the Conveyancing and Law of Property Act, 1881, inasmuch as that section is not expressly incorporated by section 9 of the Act of 1897. But having regard to the definition of "mortgage" in section 2 (vi.) of the first-mentioned Act, it is conceived that a registered chargee would have the power. If a transfer of the land were taken and the mortgagee had acquired a title to the land by possession (section 12 of the Act of 1897 would not apply against him, being the registered proprietor) it would, no doubt, render unnecessary any proceedings for foreclosure, but as a rule a mortgagee does not lend money with a view to acquire the land. In most cases where the terms of the loan cannot be given effect to by means of a registered charge a concurrent mortgage deed will probably meet the requirements of the parties. That a transfer of the land would confer certain advantages on the mortgagee will not, we apprehend, be disputed, but to insist on it without special reasons would be to drive rather a hard bargain, at any rate where the borrower is able and willing to deposit the land certificate as well as giving a registered charge. There are two modes by which a mortgage to secure further advances may be effected under a registered charge. First, the charge may be taken to secure the whole amount intended to be advanced, part of which only is advanced when the charge is registered. Here it is conceived that the chargee may safely continue to make the advances up to the amount named in the register without making any search prior to making the further advance. The only objection (if it be one) to this plan is that the register does not shew the true state of the mortgage debt. And, secondly, the charge may be taken to secure the amount advanced at the time and further advances with or without a limit. The question arises in this case whether or not the chargee ought to make a search for cautions and other entries before each further advance is made. Now, it is clear that, if the prescribed form for securing further advances is valid, no further entry on the register is necessary when the further advance is made, so that a caution or inhibition lodged subsequently to the entry of the charge would not in any way impede the further advance. But suppose that the chargee did not take possession of the land certificate (which, though highly desirable, it is not necessary for him to do), and that a second charge had been entered on the register. Would that second charge have priority over a further advance made subsequently thereto? If the second chargee had given notice of his charge to the first chargee, then, if the general law applies, of course the further advance would be postponed. It is submitted, however, that an entry on the register that a charge is to secure further advances is an entry to the contrary within section 28 of the Act of 1875. If this be the case, the result is that no second chargee would be safe where the first charge was entered to secure unlimited further advances. But assuming that actual notice of the second charge would postpone a further advance, then the question arises whether the mere registration of the second charge operates as constructive notice to the first chargee; we apprehend that it does not. Until, however, these questions are settled by judicial authority, the registered chargee should not, unless he has obtained possession of the land certificate, make a further advance without searching at any rate for subsequent charges, nor should a second chargee advance any money until the first charge has been crystallized on the register. A form of application to alter the terms of a registered charge pursuant to section 9 (5) of the Act of 1897 is provided (rule 108 and First Schedule, Form 38). Building societies may mortgage registered land in their own forms, and there are provisions enabling the mortgage deed to be delivered to them after registration upon their delivering at the registry a certified copy thereof (rule 154). There are also provisions relating to the discharge of mortgages or charges in favour of building societies (rule 110). A form of transfer of a charge is prescribed (rule 111 and Form 40), also a form where the registered proprietor of land and a chargee transfer to a purchaser, the chargee being paid off out of the purchase-money (rule 124 and Form 41). It is not clear, however, how the purchase is to be completed in the last case elsewhere than at the land registry, as a chargee will not execute the transfer without receiving his money and the purchaser will not get a good title until registration. Possibly in practice a purchaser will be willing to take this risk, or where he is buying the whole of the land comprised in a charge, the handing over of the charge certificate will be a sufficient protection to the purchaser, inasmuch as the chargee cannot get any disposition of the charge registered without production of the charge certificate (Act of 1897, section 8 (1)). Mortgages by deposit.-A mortgagee by deposit of the land certificate obtains a statutory lien under the last paragraph of section 8 of the Act, subject to "registered estates, charges, or rights," and the lien is to be equivalent to a lien created by an owner entitled in fee simple for his own benefit." This effects a great change in the existing law. The general rule as regards an equitable mortgage by deposit is that it operates to the extent only of the beneficial interest of the mortgagor in the property (Fisher on Mortgages, 4th ed., p. 54). Thus, if a trustee entitled in fee improperly deposits title-deeds of unregistered land by way of mortgage and then absconds, no lien is created as against the beneficiaries: Manningford v. Tuleman (1 Coll. 670), Newton v. Newton (4 Ch. App. 143); but now it seems that if he deposits a land certificate a lien will be created (see ante, p. 608). Cautions, inhibitions, and restrictions are bars only to registered dispositions (Act of 1875, ss. 53 to 59), and there seems no power to prevent a registered proprietor from creating a lien by deposit of his certificate. Even in the case of settled land he may do so (see section 6, sub-section 8, of the Act of 1897). Where an incumbent of a benefice is the registered proprietor the registrar is directed to enter an inhibition on the register and in the certificate that the deposit of the certificate is not to create any lien (see the Act of 1897, s. 15; rule 187, First Schedule, Form 54). As a general rule, however, an inhibition is merely directed against registered dealings (see ante), and a deposit of a certificate by way of mortgage is at best a hybrid dealing. It is true that the registrar has in mere formal cases a discretionary power (rule 266), but it is open to question whether he has power, except as against an incumbent of a benefice, to restrict the operation of the deposit of a land or charge certificate. To solve this doubt, what is wanted is a power for the registrar to enter a note on the register and in the land or charge certificate to the effect that Until further order no lien is created by deposit of the !! certificate. It may perhaps be contended that an entry that no charge is to be created without certain consents would equally prohibit a Though cautions, inhibitions, and restrictions do not seem to affect a mortgagee by deposit, yet he, when making the original loan, should telegraph for a search under rule 215 to see that the register is clear, unless he wishes to be involved in a lawsuit with regard to priorities. No further search would appear to be necessary, however, in making further advances, provided notice of the deposit of the certificate has been duly lodged. This notice is to be entered in the register and is to operate as the lodgment of a caution (rule 190). So long as such a notice is on the register, no new certificate is to be issued without notice to the person by whom the notice of deposit was given. If the notice is not given the mortgagee will not be entitled to claim indemnity (Act of 1897, s. 7 (3)). Thus the case of mortgages by deposit seems to constitute an exception to the rule laid down in the amendment of section 83 (1) of the Act of 1875 contained in the First Schedule to the Act of 1897, that references to trusts are to be excluded from the register. From the point of view, then, of an intending mortgagee by deposit the provisions of the Acts and Rules must, we apprehend, be regarded with considerable satisfaction. REVIEWS. COMPANY LAW. of the Municipal Corporations Act, 1882, and other Acts, and the whole of the Statutes, Rules, and Orders passed or issued since 1888 relating to the Powers and Duties of County Councils; with Notes and Index. Third Edition. By ALEXANDER MACMORRAN, M.A., Q.C., and T. R. COLQUHOUN DILL, B. A., Barrister-at-Law. Shaw & Sons; Butterworth & Co. with Notes thereon. By E. E. BLYTH, LL.D., B.A. (Lond.), Solicitor. An Analysis of the Twelfth E lition of Snell's Principles of Equity, Sixth Edition. Stevens & Haynes. Companion to the Solicitor's Clerk, a continuation of the "Solicitor's Clerk," embracing Magisterial and Criminal Law, Licensing, Bankruptcy Accounts, Book-keeping, Trust Accounts, &c., to which is added a Glossary of some Legal Maxims with their Pronunciations. By CHARLES JONES, Author of "Solicitor's Clerk," "County Court Guide," &c. Second Edition, revised and enlarged. Effingham Wilson. The Neutral Ship in War Time: Rights, Duties, and Liabilities. Illustrated in the form of a Narrative. By ALBERT SAUNDERS, Solicitor of the Supreme Court. Effingham Wilson. Price 18. net. CORRESPONDENCE. THE INCORPORATED LAW SOCIETY. annual general meeting of the society held on the 13th of July, It is well known that a committee of the Council consider with I would refer "M.A. Oxon." to the admirable paper of the late Mr. F. T. Bircham, read at Liverpool in the month of October, 1875. He then urged that the Council should be required to keep the members at large informed as to all vacancies, and to invite and obtain the co-operation of members most calculated to fill the vacancies with usefulness to the general interest, and to secure an able, trustworthy, and representative Council. He added that the best men would not submit themselves.to an open canvass, and that he saw great fear that in the alternative the result might be cliques and unseemly contests. The matter is also dealt with by Mr. William Godden, now the president of the society, in a paper read by him at Liverpool in October, 1895. COMPANY LAW. BASED ON LECTURES DELIVERED IN THE INNER TEMPLE HALL AT THE REQUEST OF THE COUNCIL OF LEGAL EDUCATION. WITH AN APPENDIX CONTAINING THE COMPANIES ACTS, 1862 TO 1893, AND RULES, &C. By FRANCIS BEAUFORT PALMER, Barrister-at-Law. Stevens & Sons (Limited). It would have been more interesting had Mr. Palmer chosen in this work to treat of company law upon somewhat general lines. It is not easy, indeed, to see what connection a book such as lies before us has with lecturing. The lectures upon which it is based must have been short, and could not very well be crowded with detail. The book is a bulky volume, and contains a detailed account of the statute and case law affecting companies. No doubt it will not on that account be the less useful, but we must confess to a feeling of disappointment on opening the book that Mr. Palmer had not offered as the result of his lectures a more readable volume. Taking the book as it stands, however, it will be found to be a very convenient guide to the vast mass of company law. On important points the progress of the cases is succinctly stated-for example, at p. 188, on the question of mortgaging uncalled capital, and at p. 212, upon floating charges. And attention may be called also to the account which Mr. Palmer gives of debentures and his comments on the various clauses which are now usually introduced. Towards the end of the book a few pages deal with private companies, and the author's criticism that the view of the requirements of the Companies Act taken by the Court of Appeal in Salomon's case was obviously Sir, I have been looking for communications from some of your erroneous and unsound he is happily able to support with the judg-readers as to the decision of the Divisional Court in the case of ment of the House of Lords. The text of the work is divided into law or administration, save the last, which gives a list of leading cases; and the subject-matter of each chapter is placed under distinctive headings. An appendix contains the statutes and rules. BOOKS RECEIVED. The Local Government Act, 1888, with the Incorporated Provisions I am convinced that I have the approval of a great number of country members in expressing the hope that it may, in future, be the practice of the Council to nominate, for our information and guidance, fit and suitable persons for the vacancies which may from time to time occur, while they leave the whole electorate absolutely free in sending in their voting papers. 18, Cook-street, Liverpool, July 6. C. H. MORTON. COUNTY COURT: COSTS OF REMITTED ACTIONS. [To the Editor of the Solicitors' Journal.] Bailey v. Watson, reported by you on the 18th ult. The report is very short, and does not inform the reader whether or not the Treasury rule as to fees was brought to the attention of the court. The case was this: Action for £44 in the High Court-judgment under order 14 for £27 18s. 11d., and action "remitted" to the county court (Swansea) as to £2 0s. 6d., the balance being abandoned by the plaintiff. The plaintiff obtained a judgment for the whole £2 03. 6d., thus apparently shewing that the defence as to that was without justification, and that all the expense incurred was forced on the plaintiff by a contentious defendant. Yet the defendant is relieved of the consequences of his contention. The theory of a remitted action, so far as my experience goes, is that it is still pending, and is not determined at one point by the judgment in the High Court under order 14. So far as the pendency of the action is concerned, the effect of that order is to ascertain a part of the claim, not to determine the action. The action is therefore considered as still existing, and the fees payable in the county court under the Treasury order are payable on the amount of the plaintiff's claim, not on the amount to be decided by the county court. Thus, for entering writ under section 65 of the County Courts Act, 21s. The hearing fee follows the plaint fee, and is £2. These make a total of fees paid to the county court of £3 6s. The decision of the Divisional Court entirely ignored this, and only allowed costs on the £5 scale. Those costs are: Court fees, 4s. and 6s.; and solicitor, 11s.; total, 21s. The plaintiff in Bailey v. Watson had the satisfaction of getting his £2 Os. 6d. and 21s. for costs, and paying the court £3 6s., or 4s. 6d. more than be recovered, for the honour of heing permitted to appear in the county court. If this decision is to stand, it will create a good deal of dissatisfaction, unless the Treasury order is altered so as to provide for the fees in remitted actions being charged on the amount to be determined by the county court, or a new form of order under order 14 be adopted giving the plaintiff leave to sign judgment for so much with costs, and leave to sue by a separate action in the county court without specifying which court. I venture to think the Council of the Law Society should take the matter in hand. SOLICITOR (S. E.). July 6. CASES OF THE WEEK. GROVES. LORD WIMBORNE. No. I. 28th June. Appeal by the plaintiff from the judgment of Grantham, J., at the trial of the action with a jury. The action was brought by the plaintiff, who was in the employment of the defendant, the proprietor of the Dowlais Ironworks, to recover damages for personal injuries caused by the defendant having failed to maintain the fencing of a steam winch in the works, which works were a factory within the Factory and Workshop Act, 1878. For the defendant it was contended that the penalty imposed by section 82 of the Act was the only remedy for the failure to maintain the fencing, and that no action lay for the breach of the statutory duty, and further that the failure to fence the machinery was due to the neglect of the defendant's foreman, who was a fellow-servant of, and in the same common employment with, the plaintiff. The jury assessed the damages at £150, but Grantham, J., held that no action lay, and directed judgment to be entered for the defendant. By section 5, sub-section 1, of the Factory and Workshop Act, 1878, every part of a steam engine in a factory shall be securely fenced; and by sub-section 4, all fencing shall be constantly maintained in an efficient state while the parts required to be fenced are in motion or use for any manufacturing process. By section 82, if any person is killed or suffers any bodily injury in consequence of the occupier of a factory having neglected to fence any machinery required to be securely fenced, or having neglected to maintain such fencing, the cccupier shall be liable to a fine not exceeding £100, the whole or any part of which may be applied for the benefit of the injured person or his family, or otherwise as a secretary of state determines. THE COURT (A. L. SMITH, RIGBY, and VAUGHAN WILLIAMS, L.JJ.) allowed the appeal, and entered judgment for the plaintiff for £150. A. L. SMITH, L.J., said that the Factory Act imposed an obligation upon the occupier of a factory in favour of the workmen, and enforced that obligation by a penalty. Section 5 imposed an unqualified obligation to fence certain machinery. It could not be doubted that, if that rection stood alone, the plaintiff would have a right of action. Unless, upon the whole purview of the Act, it was clear that the Legislature intended that the only remedy should be the imposition of a fine, it was clear that the Act gave a right of action to the injured person upon proof of the breach of the statutory duty and the injury caused thereby. Could the fine have been intended to be the only remedy when not one penny of it might ever go into the pocket of the injured man? Upon an information for a penalty the magistrates would probably take into account the character of the failure to fence, whether it was serious or venial. If the failure to fence was venial but the injury to the workman serious, ought the magistrates to impose the same fine as they would impose in a flagrant case? In his opinion the fine was intended as a punishment to the occupier for his breach of duty, and it should be proportionate to the character of the offence and not to the injury inflicted on the workman. Further, it did not necessarily follow that the occupier was the person to be fined, because by section 87 the occupier might be exempt upon shewing that some other person committed the offence without his knowledge. In his opinion, therefore, there was nothing in the Act to take away the right of action. As regards the defence of common employservant against his master for injuries caused by the negligence of a ment, that doctrine did not apply to any case except an action by a fellow-servant. Here there was no question of negligence. The plaintiff bad only to prove the breach of the statutory duty and the injury resulting therefrom. The defendant could not delegate his statutory duty to another. FIGBY and VAUGHAN WILLIAMS, L.JJ., concurred.-COUNSEL, Abel Thomas, Q.C., and S. J. Evans; Francis Williams, Q.C., and Bailhache. SOLICITORS, Riddell, Vaizey, & Smith, for J. H. Jones, Cardiff; David & Evans, Cardiff. [Reported by W. F. BARRY, Barrister-at-Law.] WOOLF v. HAMILTON No. 1. 2nd July. GAMING-BETTING-HORSE-RACE-CHEQUE GIVEN IN PAYMENT OF BETHOLDER FOR VALUE WITH NOTICE-16 CAR. 2, c. 7-9 Anne, c. 14, s. 1-5 & 6 WILL. 4, c. 41, s. 1. Appeal from the judgment of Darling, J., at the trial of the action without a jury. The action was brought to recover £84 33. 9d. upon a in payment of bets lost upon horse-races, and indorsed by Wilson to dishonoured cheque drawn by the defendant in favour of one Wilson, it was given in payment of bets upon horse-races. Darling, J., held that the plaintiff for value. The plaintiff took the cheque with knowledge that the plaintiff could not recover. that the cheque was given on a void and not upon an illegal consideration, The plaintiff appealed, and contended and that therefore he could recover, as he gave value for the cheque: Goodburn v. Marley (2 Stra. 1159), Lynall v. Longbothom (2 Wils. 36), Blaxton v. Pye (2 Wils. 309), Applegarth v. Colley (10 M. & W. 723), and Lilley v. Rankin (56 L. J. Q. B. 248, 35 W. R. Dig. 169) were referred to. THE COURT (A. L. SMITH, RIGBY, and VAUGHAN WILLIAMS, L JJ) dismissed the appeal. A. L. SMITH, L.J., said that it had been held in many cases that horse-racing came within the statute 9 Anne, c. 14. Horseracing was expressly mentioned in the statute 16 Car. 2, c. 7, and the cases shewed that the same kinds of games as were mentioned in that statute came within the statute of Anne. They could not now overrule those cases, even if they wished to do so, because the Legislature had been legislating on more than one occasion about these matters and never attempted to touch those decisions. Being within the statute of Anne the case was clear, because 5 & 6 Will. 4, c. 41, s. 1, repealed so much of the statutes of Charles 2 and Anne as declared that any note, bill, or mortgage should be absolutely void, and enacted that any such note, bill, or mortgage should be deemed and taken to have been made, drawn, accepted, given, or executed for an illegal consideration. By that statute au indorsee for value of a bill drawn in payment of a bet lost upon a horserace, could not recover if he had notice at the time he took the bill that it was drawn for such a purpose. The plaintiff therefore, having notice, could not recover. RIGBY and VAUGHAN WILLIAMS, L.JJ.,_concurred.-COUNSEL, Ritter and F. W. Sherwood; G. A. Cave-Orme and F. Shewell Cooper. SOLICITORS, H. Dade & Co.; W. H. Curtis. [Reported by W. F. BARRY, Barrister-at-Law.] This was an appeal by the defendants from a decision of Romer, J., who had given judgment for the plaintiff company, and had granted an injunction to restrain the defendant from purchasing beer to be sold at his public-house, the Duke of Portland, East Ham, from any person other than the plaintiff company. THE COURT (LINDLEY, M.R., and CHITTY and COLLINS, L JJ.) dismissed the appeal. LINDLEY, M.R., said: This case, which when it was before Romer, J., was treated perhaps rather lightly, has now been fully argued before us, and counsel have here raised questions of very considerable importance, both to the public at large, and especially to those who are concerned with maintaining or opposing public-house licences. The question arises in rather a curious form. The action is brought by Savil Brothers (Limited) against Mr. Langman, and the object of the action is to obtain an injunction to restrain the defendant from buying beer from anybody but the plaintiffs. The defence set up by the defendant is that the agreement upon which the plaintiffs are suing is an illegal agreement; and if it is so the plaintiffs, of course, are not entitled to the relief which they seek. The agreement is contained in a letter which I will read in a moment. But before I do that I must state shortly the position of affairs. Savil Brothers (Limited), a company formed for the purpose of taking over the business of the firm of Savi! Brothers, are brewers in Essex, and, like other brewers in Essex, are desirous of getting holders of public-house licences to agree to take beer, and so forth, from them only. The defendant seems to have been the owner of a piece of land on which a public-house, now called the Duke of Portland, has been built. There was no public-house there at the time at which these transactions took place. But he wanted a licence for a new public-house, and be | Mr. Savil agreed to do? Taking the case most strongly against him, and appears to have gone to the plaintiffs, or to the plaintiffs' clerk-it does not matter which-and then this letter was written and signed by the defendant. It is dated the 7th of September, 1889, and is addressed to Savil Brothers (Limited), and runs as follows: "In consideration of your having agreed to pay all the costs of my application for a licence for the sale of beer for consumption off the above premises, I agree to apply for such licence and to use my best endeavours to obtain the same, and further, for such considerations as aforesaid, I agree to tie the beer trade of the premises, when licensed, to you and your successors in business for the term of twelve years, you undertaking to supply beer in cask and bottle at such price as you shall supply to your other customers." Well now, after that agreement was entered into Langman did apply, with the assistance, as I understand it, of Savil Brothers (Limited), for an "off" licence, as it is called, and obtained it. Afterwards some dispute arose between the parties as to the terms to be allowed to the defendant, and the plaintiffs alleged that he was not adhering strictly to his agreement to buy beer only from them. Thereupon the plaintiffs brought this action. The illegality alleged by the defendant, to which I have already alluded, is not disclosed on the face of the letter; nobody simply reading that letter would see anything wrong in it. But, of course, it is familiar to all lawyers that you may set up as a defence an illegality which has to be proved by evidence outside the agreement itself, and that that, if made out, will be a good answer, though the illegality does not appear on the face of the agreement. The defendant says that this contract is illegal on the ground that it is against public policy, and also on the ground that it savours of champerty. I will take first the most important and most elaborately argued objection, that the agreement is illegal as against public policy, because it tends to pervert the due administration of justice. How, then, does the defendant make out that it is an illegal agreement? By reading a paragraph of Mr. Savil's affidavit, and by referring to certain answers which Mr. Savil gave when cross-examined on that affidavit. The affidavit, in paragraph 3, says that the firm of Savil Brothers and the plaintiff company have for many years made a speciality of the business of assisting in procuring new licences in new neighbourhoods in Essex as local brewers, and are always prepared to take up an application which has a reasonable prospect of success; that the place in which the premises belonging to the defendant were situate was then a new neighbourhood, and that although the trade likely to be done at the time was not large, Savil Brothers (Limited) thought it would increase in proportion to the increase of population. Savil Brothers (Limited) therefore agreed to support the defendant's application for an "off" licence, on condition that they secured the trade of the house if a licence was granted. Paragraph 6 of the affidavit states that Savil Brothers (Limited) gave the support of their name and business reputation to the defendant's application; and that it is perfectly well known in the trade that an application supported by brewers is more likely to be granted than an application not so supported. Upon cross-examination by Mr. Neville (at p. 2), Mr. Neville asked Mr. Savill this: "Is it true that you did agree to support his applica"Yes." 66 tion ?" 'And was that undertaking given on the condition that the house should be tied to you?" And the answer is, Yes." Then there is more cross-examination, which I pass over. It comes out that in the case of this house the value of the tie to the plaintiff company would be about £200 or £300 a year, which, capitalized, would amount to about £2,500 or £3,000 for the twelve years. Then there is a passage (at p. 6) with respect to the procedure. You do not make the application in your own name?" And there is this answer: "It is generally known in court whose applications they are. It is generally known what brewers' application it is by everybody in the court. I do not know about the justices knowing." Then he says that all he does is to put the application before the magistrates in the best form, and that the appli-Cas. 504) (explained in Re Hodgson, 34 W. R. 127, 31 Ch. D. 177) applied cation does not in any way show that the plaintiff company are supporting it. Then (at p. 8) he sums it up: "It becomes known in some way or other, and an application from a brewer is looked upon more favourably. They say, That is a responsible house; they would not make the application for a licence unless it were wanted.' He says he did not mention this application, and never does mention such applications, to his brother magistrates, because he should probably get snubbed if he did. I think I have now read everything worth reading. It is suggested at the bar that the plaintiff's own evidence shews that this was really an illegal agreement, because in substance the transaction amounted to the purchase of Mr. Savil's influence with his brother magistrates. If it really were an agreement by the plaintiff to sell to the defendant his influence over his brother magistrates, I think the defence of illegality would be made out; but, in my opinion, that is not a fair inference to be drawn. The true inference, in my opinion, amounts to nothing more than an agreement to become tied to the plaintiff company, which agreement, in the ordinary course of things, gets known, and has the effect of increasing the defendant's chance of obtaining the licence he is applying for. Let us consider a little what a licence is. In the first place, brewers may be magistrates. That is in accordance with well-known law. Another principle is that a brewer who is a magistrate cannot attend or act upon a brewster sessions, or take any part in the proceedings. Now, when the magistrates meet for the purpose of considering these licences they are not a court. That has been decided by the House of Lords. They are a statutory meeting of competent persons held for a certain purpose. What do they meet for? To perform their public duties; to consider the propriety and advisability of granting public-house licences to persons who apply for them. That involves an investigation into the character of the neighbourhood, and as to the needs of the public-whether there is any need of a public-house at all-and a consideration of the character of the applicant, and of whatever circumstances are calculated to influence their decision. On the consideration of all these matters they must decide. What, then, was it that High Court-Chancery Division. M'LEOD v. POWER. Byrne, J. 30th June. In an action against two joint contractors the plaintiff signed judgment by consent against one of the two defendants. The question was whether he could proceed with his action and enter a second judgment against the remaining defendant. BYRNE, J., held that the rule in Kendall v. Hamilton (28 W. R. 97, 4 App. to this case, which was not in the exceptions or admitted in the Rules of the Supreme Court, and that the plaintiff was not entitled to continue his action.-COUNSEL, Eve, Q.C., and H. Spensley; F. Dodd. SOLICITORS, Ashley Lumby & Michael; Wild & Wild. [Reported by J. ARTHUR PRICE, Barrister-at-Law.] High Court-Queen's Bench Division. Commercial cause. This was an action tried by Bigham, J., without a jury. The plaintiffs claimed for loss under two policies of marine insurance effected with the defendant company. The defendants denied liability, alleging that the policies were void because the plaintiffs had concealed a material fact-namely, that the importation of arms and ammunition into Persia was forbidden by an edict of the Persian Government made in 1881, and the voyage being thus an illegal venture the policies were rendered void: Redmond v. Smith (7 M. & G. 457), and De Wützv. Hendricks (2 Bing. 314). The plaintiffs said that the voyage was not an illegal venture since its object was neither opposed to the law of the nation of the assured, nor contrary to the law of nations, and they relied on Planché v. Fletcher (1 Doug. 251). Cur, adv. vult. BIGHAM, J., gave judgment for the plaintiffs. The action, he said, was brought by the plaintiffs, who were merchants carrying on business in |
