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CURRENT TOPICS ......... ......... 505 The Corporation of Hyde v, The
Bank of England .............. 511
....... 507 Re Tucker ..... ... ... ......... 511 CORRESPONDENCE ....*............ 508 | The North Mills Spinning Company CASES OF THE WEEK
COMPANIES ................... The Mersey Steel and Iron Company LEGISLATION OF THE WEEK
516 v. Naylor ..................
COUBT PAPERS......... ..
511 TOBITUARY ............... .... 521 In re Clarke's Trusts
511 I CREDITORS' CLAIMS ...............
LONDON GAZETTES, &c., &o............. 622
Swindley, Henry, Chester, Potato Dealer. June 20 at 11 at office of Brassey, Eastgate
row North, Chester
Cannon st. Freeman and Bothamley, Queen st
Coffee house, Gresham st. Greening, Fenchurch st
cess sq, Plymouth
way and Worsley, Cairo st, Warrington
Peard, Willett st, Bideford
at offices of Anning, Cheapside
Fraser, Soho sq
at offices of Burne and Co, Lincoln's inn fields
Victoria chmbrs, Figtree lane, Sheffield
Slade, St Martin's st, Wallingford
Imperial Hotel, Holborn Viaduct. Firth, Hull
June 26 at 2 at London Hotel, Exeter. Hirtzel, Exeter
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The Editor does not hold hi mself responsible for the return of rejected communi cations,
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HEWETS0N, THEXTON, &
EDE AND SON,
ESTABLISHED 1825. Arti-Dyspeptic Cocoa or Chocolate Powder.
MANUFACTURERS AND HOUSE FURNISHERS,
BY SPECIAL APPOINTMENT,
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SOLICITORS' AND REGISTRARS' GOWNS. Designs, &c. Bedroom Furniture, including Bedstead and to a Breakfast Cup, costing less than a halfpenny. Bedding, from £7 108. per set.
BARRISTERS' AND QUEEN'S COUNSEL'S DITTO, COCOATINA A LA VANILLE is the most delicate, digestible,
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HEWETSON, THEXTON, & PEART,
94, CHANCERY LANE, LONDON.
NORTHERN FIRE AND LIFE ASSURANCE COMPANY.
HEAD OFFICES - LONDON AND ABERDEEN.
ACCUMULATED FUNDS, £2,708,000.
The FORTY-SIXTH ANNUAL GENERAL MEETING of this Company was held within their House, at Aberdeen, on FRIDAY, June 9, 1882, when the Directors' Report was adopted, and a Dividend of 203., together with a Bonus of 108. per share, free of income-tax, were declared, making, with the amount already paid, a total distribution of 50s. per share in respect of the year 1881. The following are extracts from the Report submitted :
FIRE DEPARTMENT. The Premiums received last year again showed an ingrease over those of the previous year, having been $451,487 0s. 5d., 48 compared with $444,596 13s. 7d. in 1880.
The losses, as in many other offices in 1881, were heavy, and amounted to £287,526 38. 4d., or 63.68 per cent. of the premiums. This ratio is higher than that of any year since 1873, and raises the general average of the Company's experience from the beginning to 58.08 per cent.
The expenses of Management (including commission to agents and charges of every kind) came to £132,204 28., or 29.29 per cent of the premiums, a reduction, of 41 per cent, compared with the previous year.
The result is that, after reserving the ugual 33 per cent. of the year's premiums to cover liabilities under current policies, a profit was earned of £29,459 19s. 5d. which sum has been transferred to the credit of the general account of profit and loss.
LIFE DEPARTMENT. ASSURANCE BRANCH.--The new assurances during the year reached in the aggregate the sum of £495,856, of which £162,450 was for endowment assurances payable at death or on the attainment of a specified age. These new assurances yielded annual premiums amounting to £18,033 ls, 2d., and single premiums amounting to £1,137 1s. 10d.
The total income of the year (including interest) was £242,124 188, 10d.
OFFICE OF GENERAL MANAGER.--Mr. E. H, Mannering having resigned the service of the Company to accept an appointment in another office, the Directors have sppointed Mr. Valentine sole General Manager.
LONDON BOARD OF DIRECTORS.
Chairman-Sir WILLIAM MILLER, Bart.
WILLIAM EGERTON HUBBARI
FERDINAND MARSHALL HUTH, Esq.
HENRY JAMES LUBBOCK
JOHN STEWART, Esq.
WILLIAM WALKINSHAW, Esq.
Copies of the Report, with the whole accounts of the Company for the year 1881, may be obtained from any of the Company's Offices or Agencies.
LONDON, JUNE 24, 1882.
existence of the marriage relationship, where its existence was denied by the defendant.
THE COURT OF APPEAL had, on Monday, for the first time so WITHIN THE LAST TWO YEARS an addition has been made to fa
o far as we know, to construe section 14 of the Conveyancing Act, the form of writs of attachment, by a note indorsed on all writs
and to set the standard for deciding the terms on which relief issued against persons in contempt under the Debtors Act (section
against forfeiture is to be granted. The forfeiture in respect of 4 (3)), to the effect that“ this writ does not authorize an imprison
which relief was applied for was for breach of a covenant to keep ment for any longer period than one year.” This addition was
as the demised premises insured at all times during the term. There inserted for the express purpose of getting rid of motions to dis
had been no loss by fire to the lessor, but it would seem that he charge such prisoners at the expiration of that term. It does not
had paid some premiums for insurance of the premises. Under appear to be generally known among practitioners that such
these circumstances the court granted relief on the terms of the motions are no longer necessary.
lessee's effecting an insurance in accordance with the covenant in the lease; repaying to the lessor the premiums he had paid with
interest at four per cent. ; paying the rent in arrear with interest at SEVERAL IMPORTANT AMENDMENTS were, on the motion of the
the same rate, and also paying the costs of the action and of the Lord Chancellor, inserted in the Married Womens' Property Bill appeal. This means that, where no loss has happened by fire, the before it left the House of Lords. One of the most useful court will relieve against forfeiture for breach of covenant to (though, perhaps, hardly the most felicitous in expression) is the insure without awarding damages to the lessor. It does not seem following clause, which now stands as clause 3 of the Bill :
of much advantage to discuss the question whether, under the “Any money or estate of the wife lent or entrusted by her to her circumstances of the case, the section of the Conveyancing Act husband for the purpose of any trade or business carried on by
was applicable. Section 14 expressly applies to leases made either him, or otherwise, shall be treated as assets of her husband's before or after the commencement of the Act: and it cannot be estate in case of his bankruptcy, under reservation of the wife's doubted that it enables relief to
doubted that it enables relief to be given against forfeiture for claim to a dividend as a creditor for the amount or value of such
| breaches of covenant committed before the commencement of the money or estate after, but not before, all claims of the other
Act, where proceedings in respect of such breaches are comcreditors of the husband for valuable consideration in money or
menced after the commencement of the Act. Whether it applies to money's worth have been satisfied.”
proceedings for forfeiture commenced before, and pending at the time of, the commencement of the Act might perhaps have been
considered somewhat doubtful. Under sub-section (2) the ONE OF THE OFFICE RULES settled by the practice masters
court, in granting or refusing relief, is to have “regard provides that, “In chancery actions an amendment to a writ of to the proceedings and conduct of the parties under the summons pursuant to an order of court or judge, may be made foregoing provisions” of the section that is, as to their either on an undertaking to get the order drawn up, or on a conduct in respect to the notice required to be given under separate memorandum or certificate being left for filing, signed or sub-section (1). This important guide for the decision of the court initialed by the judge or registrar, showing the order to have been
is absent in the case of proceedings for forfeiture commenced made.” The Rules of Court require an order to be drawn up in before the Act came into operation, for it was not then incumeach case of amendment of writ authorized by the court ; but as bent on the lessor before enforcing his right of re-entry to serve on the only object of drawing up such order, after the amendment the lessee the notice specified in sub-section (1). Whether the has been actually made within the fourteen days limited by the section applies to such a case as that before the Court of Appeal, rules, is for the purpose of collecting the stamp, the ques- where proceedings for forfeiture were not only commenced tion has been raised, Why should any order be required to be before the Act came into operation, but were completed up to drawn up in such cases, and why should not the stamp be required judgment entitling the lessor to possession of the demised premises. to be affixed to the written authority under which the writ is
execution being only stayed to enable the lessee to appea], is, peramended? We believe that the question is now under considera- |
haps, still more doubtful. The court unanimously held that it tion.
does apply to such a case, and we are not concerned to contend
for the limitation of the operation of section 14. A QUAINT PIECE of justices' justice has come to light before Sir JAMES HANNEN this week in connection with an order for a judicial separation and for payment of A COUNTY COURT JUDGE having decided in Griffiths v. Earl alimony, which had been made by two justices under 41 Dudley that a workman cannot “contract” his personal repre& 42 Vict. c. 19, s. 4. A man was convicted of an aggravated sentatives “ out of” the benefit of the Employers' Liability Act, assault upon a woman who was reputed to be his wife, and, 1880, it is of some importance to gather the effect of the recent although he denied the marriage, and no certificate of marriage judgment of a divisional court (FIELD and CAVE, JJ.), by was produced, the magistrates proceeded to order a judicial which the judgment of the county court was set aside. The separation and payment of a sum of fifteen shillings a week by plaintiff was the widow of a deceased workman, who had accepted way of alimony. After undergoing imprisonment for default in service from the defendant on the condition that neither he nor payment of the weekly allowance, the defendant appealed against his representatives would prefer any claim against the defendant the order, and a rule has been granted calling upon the complain- under the statute, and it was sought on behalf of the widow to ant to show cause why it should not be set aside. When the Act establish a claim against the defendant notwithstanding such a under which the order was made was passed, some misgivings contract of service, upon no less than four grounds. First, it was were entertained as to the expediency of empowering magistrates said that there was no consideration for the contract; but thi s to grant decrees for judicial separation, but it was certainly contention was given up in argument, for it was clear that the never anticipated that any magistrate would go so far as to employment was consideration. Secondly, it was said that public exercise the jurisdiction without requiring any evidence of the policy was against such a contract; but no authorities were cited
for such a proposition, and in the absence of authority it was impos- under-lessee be placed in a better condition? It seems to me that sible to override freedom of contract. Thirdly, it was argued that any fresh law of bankruptcy ought to provide definitely for this although a workman might contract himself out of the Act in matter, and that it should not be left for the courts by some case of injury, his personal representatives had a vested right to strained and doubtful construction to elicit some reasonable arrangethe benefits of the Act, of which no contract by him could ment from words which do not really provide for the case at all. deprive them. Against this there was the unquestioned authority It does not seem to me that a decision that the under-lessee is of Read v. Great Eastern Railway Company (L. R. 3 Q. B. 555), substituted for the lessee meets the exigencies of the case. I do in which case it was held that an action can only be maintained not see why, if the under-lease was more onerous to the tenant under Lord Campbell's Act in a case where the deceased could than the lease, the under-lessee should be put in a better position have maintained an action if he had survived. Fourthly, the than he contracted for, merely because the lessee has become words of the 1st section were relied on as expressly restricting bankrupt. It is difficult to say what ought to be the arrangement, freedom of contract. The 1st section is to the effect that in cases but perhaps a provision of this kind would be as good a one as within the Act, “the workman, or in case the injury results in could be devised:—The under-lessee should have an option to death, the legal personal representatives of the workman, ... throw up his under-lease altogether. If the under-lessee refuses shall have the same right of compensation and remedies against to surrender the premises, then it should be at the option of the the employer as if the workman had not been a workman of nor lessor, whether he will grant the under-lessee a lease for the in the service of his employer, nor engaged in the work." It was remainder of the term on the same terms as the original lease, or attempted to show that, as the workman or his representatives whether he will grant him a lease on the terms of the underwere to have the same rights “as if the workman had not been lease. Of course, if the terms of the under-lease are more workman,” the express contract avoiding the effect of the Act, onerous to the tenant than those of the lease there will be which sprung from the fact of the deceased having been a some hardship to the under-lessee, but then the person who workman, was avoided by the effect of the Act. But, as was takes an underlease may justly be considered as having pointed out by one of the learned judges, the injury also, without necessarily taken it subject to such risks as these. On the other which the action could not have been brought, also sprung from hand, there seems to be no substantial hardship to the lessor. If the fact of the deceased haying been a workman, so that the the under-lessee will not accept either alternative, the lessor is fourth ground failed also. No leave to appeal was asked for, so only in the same position as if the lessee had become bankrupt that no more will be heard of the case, the strongest, or perhaps without having created an under-lease. But if the under-lessee the only arguable, point in which—that a workman cannot insists on retaining the premises, it seems fair that the lessor deprive his personal representatives of the benefit of the Act—will should have the option I suggest. If he prefer the terms of not, of course, be available in any action for injury which may be the lease, then he is only insisting on the terms of his original brought by the workman himself. The decision seems to be contract subject to which the under-lessee took the premises, bis unquestionable; and if an additional argument were wanted in estate being a dependent and subordinate estate. On the other support of the defendant's case, it may be found in the fact that hand, if the lessor prefers the terms of the under-lease, then he where, in the very same session that the Act was passed, the only insists on the terms upon which the under-lessee originally Legislature intended to restrict the freedom of contract, the took bis estate.” Legislature expressed its meaning in very express terms. “Every agreement... which purports to divest the right of the occupier as ...reserved to him by this Act," it is said in the 3rd section of the Ground Game Act, 1880 (43 & 44 Vict. c. IT WILL BE REMEMBERED that in 1879 a Select Committee of 47), “shall be void." The absence of any similar expression in the House of Commons recommended that the law of removal of the Employers' Liability Act is a strong indication that no such the poor should be wholly abolished, and that for the purpose of restriction was intended in that Act.
poor relief, settlement should be disregarded. The Bill “to amend the law of settlement and removal,” which Mr. DODSON has recently introduced by way of partly carrying out this
recommendation, may perhaps be expected to pass, but it is rather A CORRESPONDENT sends us some suggestions as to the altera
to be regretted that the Local Government Board has not seen its tion of the law of disclaimer of leases which deserve attention. He says :—“One of the principal questions involved in the sub
way to a more sweeping measure. The Bill shortens to three
months the period after which a person is to acquire a status of ject of disclaimer is the position of an under-lessee upon such
irremovability, fixed at five years by the first Act which conferred disclaimer by the original lessee, or his assignee. If the under
that status (9 & 10 Vict. c. 66), reduced to three years by the first lease is more onerous to the tenant than the original lease, there would seem to be no hardship in making the under-lessee tenant
amending Act (24 & 25 Vict. c. 55), and reduced to one year by
the second amending Act (28 & 29 Vict. c. 79). It further reduces to the original lessor on the terms of the under-lease ; but if the
to one year the term of three years' residence required by section terms of the under-lease should be less onerous to the tenant than
34 of 39 & 40 Vict. c. 61, to gain a “ settlement.” If it is worth those of the lease, as they may be where a premium on granting the under-lease has been taken-and, I believe in some cases are
while to go so far, it would seem to be worth while to follow the
recommendations of the committee to their full length. The —then a difficulty arises. It would be hard on the original lessor that he should be bound by the terms of the under-lease. On the
objection, of course, to abolishing the law of removal is that a other hand, it is somewhat hard on the under-lessee, who has this might be remedied by a provision that where burdened
e particular union might have to bear an excessive burden. But perhaps paid a premium having relation to the terms of his lease,
· with the support of paupers who had not been resident for a to be subjected to the more onerous terms of the lease. It is impossible to prevent some hardship to one party or the other, but
specified length of time, the Imperial Exchequer should be called
ut upon to reimburse the unions in questions. this hardship would be much diminished for the future if the law made intelligible provisions on the subject. It seems to me clear that it is unjust to make the original lessor subject to a contract which he never made for himself where such contract is more disadvantageous to him than the contract which he actually made.
The condition of Vice-Chancellor Hall shows little change. On the other hand, the party who takes an under-lease knows Chief Baron Palles was taken suddenly ill on Wedoesday during the hear. that he takes an interest in an estate subject to, and dependenting of a case in Dublin. apon, the terms upon which such estate was originally granted. On Thursday afternoon the Court of Common Council proceeded to the Where no question of disclaimer arises, the under-lessee's interest | election of a remembrancer. There were twenty-two candidates, and. is subject to the payment of the rent and performance of the con- shows of hands they were at length reduced to three-Damely, Mr. Craig ditions of the original lease, and he can only safeguard himself by Mr. Goldney, and Mr. Tucker. On a poll, Mr. Goldney received 149 votes, taking covenants of indemnity from the under-lessor. Why,
Mr. Craigie 81, and Mr. Tucker 76. Mr. Tucker was, therefore, lest out of because the original lessee becomes bankrupt, and is personally
the contest. On a further poll, Mr. Goldney received 141 votes and Mr.
personany Craigie 23. The election thus fell upon Mr. Gabriel Prior Goldney, who is relieved from the conditions of the original lease, should the the eldest son of Sir G. P. Goldney.
obviously fatal to the existence of the wider right, as we shall RIGHT OF FISHING IN NAVIGABLE presently show. We do not suppose that such a doctrine can be RIVER.
considered as having been distinctly formulated and established to
be the law in the most ancient times. In early days the notion The case of Reece v. Miller (L. R. 8 Q. B. D. 626), recently of the Crown being trustee for, and representative of, the public decided in the Queen's Bench Division, raised a point of some was not very definitely acknowledged, and there can be no doubt interest with regard to the existence of a public right of fishing in that in the case of a fishery in a tidal river of any value in those days a navigable river. It is undisputed law that the general public the Crown would have claimed the right as its own to enjoy or grant have a right to fish in a tidal navigable river, but there has been away to private proprietors as it thought fit, though as time went a wide-spread belief that the public right of fishing is still wider, on the practice of the more tyrannical early kings in these respects and that it extends to all navigable rivers whether tidal or not. was gradually discouraged, and ultimately rendered obsolete as in We do not think that this belief has ever received much sanction the case of grants of warrens and other matters. Indeed, we hardly from competent lawyers, but its correctness is, nevertheless, think that in actual fact the right of the public can be said to have frequently asserted by correspondents of newspapers. It has over arisen out of the right of the Crown in any very direct way. It is to and over again been alleged that the point has not been definitively be observed that Grove, J., only says that Hale probably considered settled by any legal decision. Even if this were true, it appears the rights co-extensive. It seems to us probable that it would be to us that the point is really hardly capable of argument, but, more correct to say that the right of the Crown over the bed, and however that may be, it is clear that the case of Reece v. Miller that of the public to fish, arose naturally out of the same natural conclusively settles the point. The actual point that was argued qualities of tidal navigable rivers. The tidal estuary of a river at in the case was whether the River Wye was tidal at the spot in high tide is, in fact, part of the sea. It is difficult, at any rate, to say question, but none the less the basis of the decision was that, in where the sea can be considered as ending, and the land or riverorder that there might be a public right of fishing, the river must for the law of real property considered a river or lake as only land be tidal, because the court, being of opinion that it was not tidal, covered with water-as beginning. It is obvious that the same affirmed the conviction for unlawful fishing.
considerations, by virtue of which the law assigns the proprietorThe notion that there is a public right of fishing in a non-tidal ship of the bed of inland waters to private individuals, do not navigable river no doubt arises from the fact that in many cases of apply to the bed of an estuary. At the same time the soil of the such rivers the public have de facto been permitted, without much estuary is part of the realm, and it follows that the Crown, as interference, to enjoy such right of fishing, because it was not representing the body politic, has the right of dealing with it. worth the while of the riparian proprietors to interfere, but to any It seems to us probable that the right of the public to nsh in the one considering the question from a legal point of view it must be tidal water, as a matter of fact, really arose in the same way as obvious that no legal basis for such a right can exist. The notion their right to fish in the sea, if such a right can be said to arise. of such a right is analogous to that of a right on the part of the It is water which, though it may form part of the realm, is really general public to the enjoyment of commons as recreation grounds publici juris. Of course, in the earlier stages of civilization, these which has often been asserted in newspapers. In the first place, rights are not very distinctly defined, and when questions subseit is obvious that the status of navigability cannot, in itself, carry quently arise, and exact limits must be assigned, the law must with it the right to take fish. The two things have no necessary define those limits by considerations of expediency and reason. connection with one another. The right to navigate is only It being difficult to say exactly where the river ended and the sea analogous to the right to pass over a highway on land. A began, the salt and fresh water not respectively ending at any passenger could not justify using the highway for the purpose of particular point, some limit must be assigned. The flow of the shooting birds or rabbits thereon. Again, this is not the question tide would afford, both in practice and in theory, a limit. In some of a local custom or right to a profit à prendre. The right is such way as this we conceive the right of the public to fish in the claimed for the general public, not as belonging to the inhabitants tidal part of a river became established. of a particular district or the occupiers of particular hereditaments. It is not, as we conceive, just to suppose that the right of the We do not, of course, mean to say that any better basis could be public in fact arose out of that of the Crown in the sense that at made for such a limited right, but it is sufficient to say that no | any particular period the Crown granted or acknowledged this such contention arises.
right, for we are not aware that there is any evidence of that. The only possible legal way of putting the claim that occurs to It seems to us rational to suppose that the two rights naturally us is, that it might be contended that the exercise of the right arose, or were developed, out of the natural conditions of the claimed was the universal general custom of the realm in point of thing over which they were exercised. An old-fashioned lawyer, fact, which, being proved to be and to have been from time the doctrine having been established that the soil of tidal waters immemorial universally exercised, would really form part of the is vested in the Crown, on the principle that the accessory goes common law. The fact that it was so if it existed might perhaps with the principal, is naturally led to the proposition that the be proved by the statements of writers on legal subjects or other right of the people is derived from that of the Crown. It may writers as matter of history coupled with modern experience, but be that, looking upon the expression, the “ Crown,” as in that it is obvious that if such a fact existed it would have abundant relation meaning the representative of the State or body politic, recognition in legal history. It cannot be pretended for a moment the proposition is a correct way of legally expressing the that there is anything like sufficient evidence of such recognition doctrine, but it is not true in any other sense. You might say forthcoming. The people who put forward the idea are generally that the atmosphere of this country belongs to the Crown as a in fact votaries of the sport of fishing with rod and line, but if trustee for the body politic, and, therefore, the people's right to the right exists there seems to be no reason for confining it to that the air is the Crown's right to it. This may be true in one sense, sort of fishing. It seems, however, highly unlikely that in days but, unless “Crown” and “people” really mean the same thing when fresh-water fisheries for coarse fish were of more value and in the proposition, it is a fiction. importance owing to the existence of fast days, and the absence It is obyious that, however the question is regarded, whether of rapid communication with the sea, the right to take these fish the right must be treated as that of the Crown or as cowith nets in inland waters should have remained unappropriated, extensive with that of the Crown over the bed of the and manorial title deeds, charters, and other ancient documents river, either way any right of the public to fish in nongive abundant evidence that such was, at any rate in many instances, tidal navigable rivers is excluded. It has never been connot the case.
tended that the bed of non-tidal rivers belongs to the Crown A possible legal basis of the right to fish in tidal navigable rivers any more than the soil of wastes or commons. The rational seems to be that mentioned by Grove, J., in Reece v. Miller, where explanation of the undoubted and long-established right of the he says, in reference to a passage in Hale, de jure maris, “ There public to fish in tidal rivers is that the soil is not vested in any seems strong ground, from the whole of the passage, for thinking private individual, but this explanation is fatal to the larger right that the public right of fishing was considered by the author as co- claimed. This was most clearly decided in Ireland in the case of extensive with the right of the Crown over the river for public Murphy v. Ryan (Ir, Rep. 2 C. L. 143), and the decision in that purposes.” If this be a correct account of the matter, it is case has been cited with approval in English cases before Reece v. Miller. The point directly discussed in Reece v. Miller was how on “a covenant to repair.” The reason of the decision was that far up a river can be considered tidal. It appeared that on “ if the tenant could not recover these damages and costs, he would exceptional occasions when the tides were very high the river at be without redress for an injury sustained through the neglect of the spot in question was affected by the influence of the tide, but the defendant, and not in consequence of his own default: for the court were of opinion that this was not sufficient to constitute during the term he could not enter and repair the premises withthe river tidal for the purposes of the legal doctrine by which out rendering himself liable to be treated as a trespasser." This the public have a right to fish in a tidal navigable river. This decision seems to have proceeded rather on the ground of decision seems to be good sense.
natural justice than on any legal doctrines of implication from the language of covenants, and it is to be remarked that | not a single case was cited in the argument. In the two
cases of Penley v. Watts and Walker v. Hatton the Court THE INDEMNITIES OF A MESNE
of Exchequer pointed out that the covenants to repair in the
lease and the sub-lease were not the same, and this seems to be LANDLORD.
the ratio decidendi from the judgments. But Parke, B., in I.
Penley v. Watts, in the course of the argument laid down the
law as follows:-“ The lessee and his assignee are liable to the The recent case of Hornby v. Cardwell (30 W. R. 263), in
1 same extent, and the assignee is a surety for the lessee ; but that which two judges of the Court of Appeal (Brett and Cotton, 1;
is not the case in a sub-lease: the only contract in the sub-lease is L.JJ.) held that the contract of a sub-tenant to perform the cove
to perform the covenant in the sub-lease; and the only question nants of a head lease was a contract of indemnity, so that the mesne
here is whether these costs were the necessary consequences of landlord could recover from the sub-tenant the costs of an action
the breach of such covenant. There is clearly no contract of by the head landlord reasonably defended, is a case of considerable
| indemnity.” Coming lastly to Logan v. Hall we find the practical importance. It is important, not only as a decision of sub
facts to be widely different, but the law to be the same. One stantive law, but also as a decision on the point of practice (merely
Middleton in 1829 demised a house for twenty-one years to the grazed in Williams v. South-Eastern Railway Company, 26 W.
plaintiff upon a lease containing a covenant to repair and insure. R. 352) that a third party may be ordered to pay costs as between
“The plaintiff in 1835 demised the house for the rest of the term plaintiff and defendant. We will confine our remarks in the
less one day to the defendant by a sub-lease containing covenants present article to the first branch of the case; but it is well to
to repair and insure, which were copied from the head lease. bear in mind that it has two branches ; that the decision is sup- |
The house being out of repair and uninsured, Middleton reportable on two grounds, and that Jessel, M.R., rested his judgment on the second ground, and left the first untouched.
entered. The plaintiff sought to recover from the defendant the
value of the reversionary interest which he had lost, and which The facts were, shortly, these :—The plaintiff let to the defendant a house by deed, containing covenants by the tenant, in the
the jury had put at £840, but the court held that he could not do ordinary form, to repair and paint and to yield up in repair. The
so. Coltman, J., observed : defendant, by writing without seal, sub-let the same house for the
"This is an attempt by the plaintiff to turn this covenant into what it is
not-viz., a covenant of indemnity. ... The plaintiff ..., seeks to remainder of his own term, the agreement between the defendant
recover from the defendant damages which are the result of his own and his sub-tenant containing a general clause that “the letting breaches of covenant. It appears to me, a pon the authority of Penley v. should be subject, in all respects, to the terms of the existing | Watts, and Walker v. Hatton, that he cannot do this in the absence of a lease, and the covenants and stipulations contained therein," and covenant of indemnity. It was once supposed by the Court of King's Bonob, also a specific clause that the sub-tenant would, at the end of the
in Neale v. Wyllie, that the first lesses not having a right to enter for the
porpose of repairing, the sub-legseo was liable for all the damages resulting term, leave the house in good repair. The tenancy and sub
from the breach of tbe first lessee's covenant to repair. But that was over tenancy determining at the same time, a survey of dilapidations ruled by the cases above referred to ; and I think, with reason, because it was made at the instance of the plaintiff. As the result of this was competent to the first legges to stipulate for a right to enter, or to exact survey, the plaintiff claimed some £50 from the defendant for a covenant of indemnity.” dilapidations. The defendant claimed this amount over from his Now it is plain, from a consideration of these four cases, that sub-tenant, but the sub-tenant declined to have anything to do in none of them was there a contract by the sub-tenant in terms with the matter, or to indemnify the defendant, maintaining to perform all the covenants of the head lease. There was only a that he was bound by the contract of sub-tenancy only. The contract to perform a set of particular covenants, which happened plaintiff having brought his action, the defendant brought to be identical with the covenants of the head lease. There is, in the sub-tenant as third party. The issues as between therefore, a distinction in fact between these cases and the recent the plaintiff and the defendant, and as between the defendant and case. We propose to consider hereafter the practical results of the third party, were separately tried before the same official the decision of the two judges that there is also a distinction in referee, who found the same amount to be due in each case. A law. divisional court confirmed the reports of the official referee, and ordered the third party to pay the costs of both trials. The third party appealing, two points were raised-(1) whether the order
CORRESPONDENCE. was one as to costs within the discretion of the court, and therefore not appealable; and (2) whether the costs were properly
REPAIR OF MILESTONES AND GUIDE-POSTS, recoverable as upon a contract of indemnity. All the members of the court (Jessel, M.R., and Brett and Cotton, L.JJ.) concurred in
[To the Editor of the Solicitors' Journal.) holding that the costs were within the discretion of the court,
Sir,-- It is intimated to me that the reply of the Local Government and therefore not appealable. To hold this much was sufficient
| Board to the appeal of the Leicestershire magistrates should be also
published, in justice to that body, and I send a copy of the reply. How for a decision; but Brett and Cotton, L.JJ., decided also the
far it will be satisfactory to the wayfaring man—who (though not a fool) further point, and held that the costs were recoverable upon a
ne costs were recoverable upon a | may easily err for want of a guide-post-will be better understood in the contract of indemnity. We have not, therefore, a technically winter. If a catastrophe happens in High Leicestershire—wherthere binding decision of the Court of Appeal on the point of which we are miles and miles of cross-roads, without a habitation near-J hope treat; but we have a “ semble" of sufficient strength and clear- | that the coroner's inquest, in apportioning the blame, will at least say it ness, which must be treated as law, unless and until it should be does not rest upon the highway board, or on the county justices. doubted in another Court of Appeal.
W. NAPIER REEVE, Clerk of the Peace. The cases in point are very few.
Clerk of the Peace's Office, Leicester, June 20.
In addition to Penley v. Watts (7 M. & W. 661), Walker v. Hatton (10 M. & W. 249), [The following is the reply referred to :and Logan v. Hall (14 C. B. 598), there is Neale v. Wyllie (3
[Copy.] B. & C. 535), In this case it was expressly held that the damages and costs recovered in an action by a head landlord
Local Government Board, Whitehall, S.W.
31st December, 1881. against a tenant on “ a covenant to repair” might be recovered as Sir, I am directed by the Local Government Board to acknowled special damages in an action by the tenant against an under-tenant the receipt of your letters of the 19th and 24th instant, and to state la